County Civil Court: CIVIL PROCEDURE – Default – Liquidated damages - Appellant, who was incarcerated during the trial court proceedings, was properly served and had notice of the pending action against him – it was prisoner’s responsibility to arrange to appear telephonically or to arrange to have an attorney appear on his behalf – upon entry of default, liquidated damages were deemed admitted and trial court could enter Final Judgment awarding such damages without holding an evidentiary hearing – Final Judgment affirmed. Gosney v. State Farm Mutual Automobile Ins. Co., No. 03-5051AP-88A (Fla. 6th Cir. App. Ct. March 19, 2004).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

SCOTT GOSNEY,

Appellant,

vs. Appeal No. 03-5051AP-88A

UCN522003AP005051XXXXCV

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY, as subrogee of

ERIC RIEKOFSKI,

Appellee.

________________________________________/

Opinion filed _______________________

Appeal from Final Judgment

Pinellas County Court

Judge William B. Blackwood

Scott Gosney, pro se

Appellant

Jeffrey M. Katz, Esquire

Attorney for Appellee

ORDER AND OPINION

THIS CAUSE came before the Court on appeal, filed by Scott Gosney (Gosney), from the Final Judgment, entered July 31, 2003, in favor of State Farm Automobile Insurance Company, as subrogee of Eric Riekofski (State Farm). Upon review of Gosney’s brief, [1] the record and being otherwise fully advised, the Court affirms the Final Judgment.

The record shows that Gosney was served with a Pluries Summons/Notice to Appear for Pre-Trial Conference and Complaint, on March 27, 2003, at the Wakulla Correctional Facility where Gosney was incarcerated. The Notice to Appear stated that the pre-trial conference was scheduled for April 15, 2003, and that failure to appear could result in the entry of a default judgment. Gosney did not appear for the hearing, nor did he request to appear by phone. A default was subsequently entered against him upon which the trial court granted Final Judgment in favor of State Farm.

Gosney is unable to demonstrate that the trial court committed error in the proceedings below. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979)(stating that in appellate proceedings the decision of the trial court has the presumption of correctness and the burden is on the appellant to demonstrate error). Gosney was properly served and had notice of the pending action against him. Since Gosney was incarcerated, it was his responsibility to arrange to have an attorney appear on his behalf or to make arrangements to appear by phone to avoid having a default entered against him. Upon entry of the default, State Farm’s entitlement to liquidated damages were deemed admitted and the trial court could enter Final Judgment awarding such damages without holding an evidentiary hearing. See Security Bank, N.A. v. Bellsouth Advertising & Publishing Corporation, 679 So.2d 795, 800 (Fla. 3d DCA 1996)(stating that default admits plaintiff’s entitlement to liquidated damages under pleaded cause of action); see also Roggemann v. Boston Safe Deposit and Trust Company, 670 So.2d 1073, 1075 (Fla. 4th DCA 1996)(finding that upon entry of default in favor of plaintiff, it was not necessary to hold an evidentiary hearing to establish liquidated damages, since court could determine the proper amount owed from the allegations in the complaint and the attachments incorporated into it). Therefore, it is,

ORDERED AND ADJUDGED that the Final Judgment is affirmed.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of March 2004.

___________________________________

JOHN A. SCHAEFER

Circuit Judge, Appellate Division

Copies furnished to:

Judge William B. Blackwood

Scott Gosney, # A495969

Sante Fe WRC

2901 N.E. 39th Avenue

Gainesville, FL 32609

Jeffrey M. Katz, Esquire

2633 McCormick Drive, Suite 101

Clearwater, FL 33759

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[1] State Farm did not file an Answer Brief.