County Civil Court: CIVIL PROCEDURE – Default – Service of Process – Default is improper where service is faulty; final judgment should not be entered without proper hearing to determine unliquidated damages – Reversed and Remanded.  Keown v. Youngclaus, Case No. 09-AP-000010-WS (Fla. 6th Cir. App. Ct. July 23, 2010). 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

STEVE KEOWN and

HOLLY KEOWN     

                        Appellants,

                                                                        UCN:              512009AP000010XXXXWS

v.                                                                     Case No:       AP-2009-000010-WS

                                                                        Lower No:    51-2009-SC-2510-WS

 

DAVID YOUNGCLAUS,                                        

                        Appellee.                                                      

______________________________/

Appeal from Pasco County Court

 

County Judge Candy VanDercar

 

Holly Keown, pro se

for Appellants

 

David Youngclaus, pro se 

for Appellee

 

 

 

 

ORDER AND OPINION

            Appellants argue that they were denied their due process rights in a small claims action.  We find that the default against Appellants was entered upon faulty service, and the final judgment was improperly entered.  This Court reverses and remands this case to the lower court as set forth below.

 

 

 

FACTUAL BACKGROUND

            On January 3, 2009, Appellants were on Appellee’s boat with their dogs (Appellants had one dog and Appellee had another).  They secured both dogs inside the cabin of Appellee’s boat for about an hour while they went to lunch.  When they returned, Appellee allegedly discovered a hole in the vinyl.  Both parties disputed whose dog did the damage, as it would be impossible to determine which dog was the culprit.    

            Appellee filed a Statement of Claim against Appellants, on July 7, 2009, seeking   $1,491.59 for the total cost to repair the vinyl tear.  Appellants inadvertently e-mailed Pinellas County informing the Small Claims Division that they were out of state and inquired whether they should file an answer in response to the claim.  The Small Claims Division in Pinellas County responded that an answer was unnecessary and that they could appear at the pre-trial conference telephonically by written request.  Whoever responded from Pinellas County did not indicate that Appellants were conversing with the wrong county court.  Appellants apparently sent their written request to Pinellas County.  Consequently, Appellant did not appear at the pre-trial conference, on August 6, 2009.  The trial court entered a final judgment of $1,491.59 plus interest. 

On August 25, 2009, Appellants filed a motion for new trial, arguing that they mailed a written request to appear telephonically (as directed by the e-mail), on July 23, 2009, and would like an opportunity to defend their case.  The trial court denied Appellants’ motion for new trial because they had no record of Appellants’ July 23, 2009 letter or any personal request for a telephonic hearing.  Subsequently, Appellants filed a motion for reconsideration, wherein Appellants’ attached bank card statements to prove that they had purchased postage for their July 23, 2009 letter and that they made a purchase in West Virginia on the pre-trial hearing date, which was not considered by the trial court.  The trial court also denied Appellants’ motion for reconsideration.  

 

LAW AND ANALYSIS

Appellants argue that Steve Keown was never properly served in this case.  The trial court record, which an appellate court may consider, reveals that Steve Keown was served by substitute service on his wife, Holly Keown, pursuant to Florida Statute 48.031(2)(a).  Florida Statute 48.031(2)(a) only allows substitute service on a spouse if (1) the action is not an adversary action between the spouses; (2) the spouse requests such service; and (3) if the spouse and the person to be served are residing together in the same dwelling.  Appellants have raised the issue of service by alleging that Steve Keown was living in West Virginia when service was attempted in July of 2009.  Even if substitute service was requested, which the record does not indicate, the substitute service appears improper since they were not residing together in the same dwelling.  If the evidence supports that any of the three elements were not met, then service was not proper.  Therefore, this case must be remanded for an appropriate hearing to determine whether Steve Keown was properly served and whether he had submitted to the jurisdiction of the court.      

Appellants also challenge the awarded damages.  According to Small Claims Rule 7.170(a), if a defendant fails to appear at the pre-trial conference, the plaintiff is entitled to a default.  After default is entered, the judge shall receive evidence establishing the damages and enter judgment in accordance with the evidence and the law.  Small Claims Rule 7.170(b).  In this case, however, the small claims court erred by only entering a final judgment.  Thus, even had the service upon Appellant been proper, this cause would still require reversal. 

A plaintiff must provide the defendant with notice of hearing on unliquidated damages in cases where plaintiff seeks an entry of final judgment under Florida Small Claims Rule 7.170.  The defaulting party has a due process right to notice and an opportunity to be heard as to evidence presented to aid the judiciary and determine the amount of unliquidated damages,[1] such as repair costs of the vinyl tear.  See, First Union National Bank of Florida v. Phillips, 4 Fla. L. Weekly Supp. 615b (15th Judicial Circuit, March 6, 1997).  There is nothing in the rule or its commentary which would eliminate a defendant’s due process right to receive notice and hearing concerning the court’s determination of unliquidated damages.  Id.  Appellants were completely denied their due process rights as they never received any notice of hearing—nor was a hearing even held.

In small claims, the judge must receive evidence establishing the damages.  Florida Small Claims Rule 7.170(b).  In CACV of Colorado v. DeWolf, 15 Fla. L. Weekly Supp. 27a (15th Judicial Circuit, November 13, 2007), the court stated that

In the small claims context, this rule makes sense.  Many small claims cases are brought by people without the benefit of counsel.  Though a statement may state a claim, either specific items of damage or the manner in which damages are calculated may be in error.  To minimize the possibility of abuse, then, whether intentional or inadvertent, the Florida Supreme Court requires evidence of damages to support a final judgment in small claims cases, not just where unliquidated damages are claimed, not just where a plaintiff is unrepresented, and even if a default has been entered.  See In re: Amendment to The Florida Small Claims Rules, 785 So. 2d 401, 402 (Fla. 2000)(purpose of Florida Small Claims Rules is to create “a system that is open and helpful to those that appear in small claims court, many of whom appear pro se and are unfamiliar with legal proceedings…”) (emphasis added). 

Here, the small claims court did not issue a default, or consider evidence of damages to support the final judgment, but simply entered a final judgment with the exact amount Appellee claimed in his Statement of Claim.  The small claims court did not consider whether Appellee’s damages claim was sufficient.  More importantly, Appellants were never given an opportunity to refute and challenge the evidence of damages.  Therefore, Appellants were denied their due process right to receive notice and opportunity to be heard on any portion of the claim which is unliquidated.  The entry of the final judgment in this case constituted fundamental error.  See, Sargent v. Williams, 15 Fla. L. Weekly Supp. 346a (20th Judicial Circuit, December 7, 2007).

Based upon the ostensibly faulty service and improper entry of a final judgment, this cause must be reversed and remanded.  On remand, the small claims court shall ensure that all parties receive proper service for the new pretrial conference.  If Appellants fail to appear at the pretrial conference, then a default shall be entered against them.  Appellants would then be entitled to proper notice of a separate hearing to determine the amount of any unliquidated damages.  Appellant would have the right to challenge these damages.  In the alternative, if after trial the small claims court determines that damages should be awarded, then evidence still must be received to establish these damages.  In no case should a small claims court award damages without evidence to support them in the final judgment.  Therefore, it is

 

ORDERED AND ADJUDGED that this cause is REVERSED and REMANDED with instructions.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 23rd day of July 2010.

 

Original order entered on July 19, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.

 


[1] A default admits a plaintiff’s entitlements to liquidated damages due under the pleaded cause of action, but not unliquidated damages.  Damages are liquidated when they can be determined with exactness from the cause of action as pleaded, by mathematical calculation, or the application of definite rules of law.  Damages are unliquidated when their ascertainment requires the taking of testimony to ascertain facts upon which to base a value judgment.  Hill v. Murphy, 872 So. 2d 919 (Fla. 2d DCA 2003); Bowman v. Kingsland Dev. Inc., 432 So. 2d 660 (Fla. 5th DCA 1983).