LEVI WHITEHEAD v. SHUTTER HANGERS, INC., etc.

• Court: District Court of Appeal of Florida
• Decided: July 7, 2021
• Docket: 20-1567
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 7, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1567 Lower Tribunal No. 18-42221 ________________

Levi Whitehead, Appellant,

vs.

Shutter Hangers, Inc., etc., et al., Appellees.

An appeal from a non-final order from the Circuit Court for Miami-Dade County, Veronica Diaz, Judge.

Harris Appeals, P.A., and Andrew A. Harris (Palm Beach Gardens); Lawlor & Associates, and Patrick W. Lawlor (Boca Raton), for appellant.

Locke Law, P.A., and Wendell T. Locke (Plantation), for appellees.

Before LINDSEY, MILLER, and LOBREE, JJ.

MILLER, J. Appellant, Levi Whitehead, challenges a non-final order denying his

motion to set aside a judicial default and default final judgment entered in

favor of appellees, Shutter Hangers, Inc. and Wendell Locke. We affirm

without further discussion on all issues but one. “It is well settled that a

defaulting party ‘has a due process entitlement to notice and opportunity to

be heard as to the presentation and evaluation of evidence necessary to a

judicial determination of the amount of unliquidated damages.’” Cellular

Warehouse, Inc. v. GH Cellular, LLC, 957 So. 2d 662, 666 (Fla. 3d DCA

2007) (citations omitted). Here, the lower tribunal awarded unliquidated

damages without affording adequate notice and an opportunity to be heard.

Thus, we reverse the order denying relief from the final default judgment to

the extent it awarded unliquidated damages and remand for a duly noticed

trial or evidentiary hearing on the same. See DYC Fishing, Ltd. v. Martinez,

994 So. 2d 461, 463 (Fla. 3d DCA 2008) (“When unliquidated damages must

be determined as a result of a default, the defaulting party ‘is entitled to notice

of an order setting the matter for trial, and must be afforded an opportunity

to defend.’”) (citation omitted); see also J.G.G. v. M.S., 312 So. 3d 509, 511

(Fla. 5th DCA 2020) (“Procedural due process requires that litigants be given

proper notice and a full and fair opportunity to be heard. To be sufficient,

notice must be ‘reasonably calculated, under all the circumstances, to

2 apprise interested parties of the pendency of the action and afford them an

opportunity to present their objections. The notice must . . . convey the

required information, and it must afford a reasonable time for those

interested to make their appearance.’”) (quoting De Leon v. Collazo, 178 So.

3d 906, 908 (Fla. 3d DCA 2015); Mullane v. Cent. Hanover Bank & Tr. Co.,

339 U.S. 306, 314 (1950)).

Reversed and remanded.