Sloan v. Freedom Savings & Loan Ass'n

525 So. 2d 1000, 13 Fla. L. Weekly 1272, 1988 Fla. App. LEXIS 2176, 1988 WL 51634

• Court: District Court of Appeal of Florida
• Decided: May 26, 1988
• Docket: No. 87-2138
• Status: Published

Opinion

DAUKSCH, Judge.

This is an appeal from a summary judgment in a promissory note guaranty case.

We affirm the summary judgment and take this opportunity to rectify a situation we created in Lauxmont Farms, Inc. v. Flavin, 514 So.2d 1133 (Fla. 5th DCA 1987). In Lauxmont, we said:

Although a default judgment can be entered to establish liability a trial is necessary to establish unliquidated damages. Therefore, the award of unliquidated compensatory damages by summary judgment in this case was error [citations omitted].

* * * * * *

Lauxmont Farms’ fundamental due process rights were violated by the defective notice of nonjury trial for both compensatory and punitive damages as well as attorneys fees and costs.

Id. at 1134.

We are advised that this Lauxmont opinion has been taken to mean that attorneys fees and costs cannot be determined and awarded by summary judgment. This interpretation is reasonable because we said "... the award of unliquidated compensatory damages by summary judgment ” is error. We should have said (and this author protests he meant to say!) “the award of unliquidated damages by default” is error.¹

So, any claim for damages, liquidated or unliquidated, or for attorneys fees and costs can be decided by summary judgment. Unliquidated damages cannot be awarded after default without notice to the defendant of the hearing or trial where the damages are to be assessed and awarded. Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla. 5th DCA 1983). Appellate judges are wont to decorate some of their opinions with Latin phrases. The appropriate one for this occasion is mea culpa.

AFFIRMED.

COBB and COWART, JJ., concur.

1 . Unliquidated damages are those which cannot be mathematically determined and are not specified in the defaulted pleading.