Curbelo v. Ullman, No. 75125

CourtUnited States State Supreme Court of Florida
Writing for the CourtEHRLICH; SHAW
Citation571 So.2d 443
Parties15 Fla. L. Weekly S638 Arnaldo CURBELO, M.D., Petitioner, v. Howard F. ULLMAN, Respondent.
Docket NumberNo. 75125
Decision Date06 December 1990

Page 443

571 So.2d 443
15 Fla. L. Weekly S638
Arnaldo CURBELO, M.D., Petitioner,
v.
Howard F. ULLMAN, Respondent.
No. 75125.
Supreme Court of Florida.
Dec. 6, 1990.

Manuel R. Morales, Jr. of Manuel R. Morales, Jr., P.A., Miami, for petitioner.

James C. Blecke, Miami, for respondent.

EHRLICH, Justice.

We review Ullman v. Curbelo, 550 So.2d 1178 (Fla. 3d DCA 1989), because of conflict with Saunders v. Saunders, 346 So.2d 1057 (Fla. 1st DCA 1977), and Ansel v. Kizer, 428 So.2d 671 (Fla. 2d DCA 1982). We have jurisdiction, article V, Section 3(b)(3), Florida Constitution, and approve the decision below.

Page 444

This case involves the question of whether Florida Rule of Civil Procedure 1.540 1 is a proper vehicle to set aside a judgment for money damages entered at a non-jury trial when a jury trial was originally requested and not subsequently waived.

Respondent Howard F. Ullman ("Ullman"), as the personal representative of the estate of Francia Perez, deceased, brought a medical malpractice wrongful death action against Dr. Arnaldo Curbelo ("Curbelo"). Ullman's complaint included a demand for trial by jury pursuant to Florida Rule of Civil Procedure 1.430. A default judgment was entered against Curbelo for failure to answer. After notice was given to all parties, Curbelo appeared pro se at a non-jury trial on the issue of damages. A final judgment was entered in favor of Ullman on December 1, 1988.

Curbelo retained counsel and on February 22, 1989 moved for relief from judgment pursuant to rule 1.540 on several grounds, including: 1) that the judgment was entered after nonjury trial by mistake and inadvertence, allowing for relief under rule 1.540(b)(1), and 2) that the judgment was void because it was entered at a non-jury trial when a jury trial had been demanded in the complaint, allowing for relief under rule 1.540(b)(4). The circuit court granted the motion for relief from judgment, declaring the final judgment null and void.

On appeal, the Third District Court of Appeal reversed and remanded to the circuit court with directions to reinstate the final judgment. The court reasoned that the proper vehicle for asserting error under these circumstances is by appeal, not by a motion to set aside judgment pursuant to rule 1.540. Ullman, 550 So.2d at 1178. Curbelo argues that this decision is contrary to the decisions of the First District Court of Appeal in Saunders and the Second District Court of Appeal in Ansel, as well as the Third District's own decision in Employee Benefit Claims, Inc. v. Diaz, 478 So.2d 379 (Fla. 3d DCA 1985). In each of these cases, relief from judgment under rule 1.540 was granted where a judgment for damages was entered after a non-jury determination although the defendant had not waived his right to a jury trial.

Before we reach the question of whether rule 1.540 was properly utilized in this case, we reject Ullman's argument that Curbelo waived his right to jury trial on the issue of damages. When a jury trial has been requested by the plaintiff, the defendant is still entitled to a jury trial on the issue of damages even though a default has been entered against the defendant for failure to answer or otherwise plead. Loiselle v. Gladfelter, 160 So.2d 740 (Fla.3d DCA), cert. discharged, 165 So.2d 767 (Fla.1964). Moreover, a demand for trial by jury may not be withdrawn "without the consent of the parties." Fla.R.Civ.P. 1.430(d). The parties' consent to waiver must be manifested by affirmative action such as "a specific...

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83 practice notes
  • Rao v. Wma Securities, Inc., No. 2006AP813.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 27, 2008
    ...that at least one state supreme court has reached a conclusion that conflicts with our holding in the present case. In Curbelo v. Ullman, 571 So.2d 443 (Fla.1990), the Florida Supreme Court held that "[w]hen a jury trial has been requested by the plaintiff, the defendant is still entitled t......
  • Drumheller v. Fillinger, No. 11–0681.
    • United States
    • Supreme Court of West Virginia
    • October 25, 2012
    ...preserved right to jury trial.” Zaiter, 620 N.W.2d at 652 (discussing basis for ruling reached in Wood ).13 In Curbelo v. Ullman, 571 So.2d 443 (Fla.1990), the Florida Supreme Court considered whether the entry of a default judgment against a defendant for failing to answer or otherwise ple......
  • Vera v. Republic Cuba, No. 12 Civ. 1596 (AKH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 22, 2014
    ...subject matter and personal jurisdiction, the court did not violate either party's right to due process. See, e.g., Curbelo v. Ullman, 571 So.2d 443, 444 (Fla.Sup.Ct.1990); Tannenbaum v. Shea, 133 So.3d 1056 (Fla.App. 4 Dist.2014). Banco Bilbao must concede that the Florida Circuit Court ma......
  • Vera v. Republic of Cuba, No. 12 Civ. 1596 AKH.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 22, 2014
    ...subject matter and personal jurisdiction, the court did not violate either party's right to due process. See, e.g., Curbelo v. Ullman, 571 So.2d 443, 444 (Fla.Sup.Ct.1990) ; Tannenbaum v. Shea, 133 So.3d 1056 (Fla.App. 4 Dist.2014). Banco Bilbao must concede that the Florida Circuit Court m......
  • Request a trial to view additional results
83 cases
  • Rao v. Wma Securities, Inc., No. 2006AP813.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 27, 2008
    ...that at least one state supreme court has reached a conclusion that conflicts with our holding in the present case. In Curbelo v. Ullman, 571 So.2d 443 (Fla.1990), the Florida Supreme Court held that "[w]hen a jury trial has been requested by the plaintiff, the defendant is still entitled t......
  • Drumheller v. Fillinger, No. 11–0681.
    • United States
    • Supreme Court of West Virginia
    • October 25, 2012
    ...preserved right to jury trial.” Zaiter, 620 N.W.2d at 652 (discussing basis for ruling reached in Wood ).13 In Curbelo v. Ullman, 571 So.2d 443 (Fla.1990), the Florida Supreme Court considered whether the entry of a default judgment against a defendant for failing to answer or otherwise ple......
  • Vera v. Republic Cuba, No. 12 Civ. 1596 (AKH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 22, 2014
    ...subject matter and personal jurisdiction, the court did not violate either party's right to due process. See, e.g., Curbelo v. Ullman, 571 So.2d 443, 444 (Fla.Sup.Ct.1990); Tannenbaum v. Shea, 133 So.3d 1056 (Fla.App. 4 Dist.2014). Banco Bilbao must concede that the Florida Circuit Court ma......
  • Vera v. Republic of Cuba, No. 12 Civ. 1596 AKH.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 22, 2014
    ...subject matter and personal jurisdiction, the court did not violate either party's right to due process. See, e.g., Curbelo v. Ullman, 571 So.2d 443, 444 (Fla.Sup.Ct.1990) ; Tannenbaum v. Shea, 133 So.3d 1056 (Fla.App. 4 Dist.2014). Banco Bilbao must concede that the Florida Circuit Court m......
  • Request a trial to view additional results

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