Mourning v. Ballast Nedam Construction, Inc., No. 4D06-2557 (Fla. App. 7/11/2007)
| Decision Date | 11 July 2007 |
| Docket Number | No. 4D06-2557,4D06-2557 |
| Parties | JOSEPH MOURNING and TANEISHA MOURNING, Appellants, v. BALLAST NEDAM CONSTRUCTION, INC., a foreign corporation, Appellee. |
| Court | Florida District Court of Appeals |
Roy W. Jordan, Jr. of Roy W. Jordan, Jr., P.A., West Palm Beach, for appellants.
Sylvia H. Walbolt and Laura W. Paquin of Carlton Fields, P.A., Tampa, for appellee.
Joseph and Taneisha Mourning (Mourning) appeal from a non-final order granting Ballast Nedam Construction, Inc.'s (Ballast) motion to vacate the final judgment which had been entered in favor of Mourning.
The issue before this court is whether the trial court reversibly erred in vacating the final judgment against Ballast based on the trial court's failure to serve Ballast with the order resetting the trial on damages. Mourning contends the trial court's failure to serve the order was remedied by Mourning subsequently mailing Ballast a copy of the order. We agree and reverse.
In April of 2003, Joseph Mourning was involved in a single-car automobile accident while driving on a road that was under construction. Mourning and his wife subsequently filed a lawsuit against Ballast, alleging that Ballast negligently maintained the construction site. A default was entered against Ballast for failing to respond to the complaint.1
After entering the default on liability, the trial court entered an order dated April 22, 2005, setting the trial on the unliquidated damages to be held during the September 12, 2005, docket. This order was not served on Ballast by either the court or Mourning. This case was not reached on the trial docket of September 12, 2005 and thereafter Mourning sought a special trial date. In response to Mourning's request, the trial court entered an order on October 5, 2005, resetting the trial for an eight-week trial docket beginning November 7, 2005.
On October 15, 2005, Mourning mailed a copy of the court's order to Ballast.2 On December 12, 2005, the court conducted a jury trial on Mourning's unliquidated damages. Ballast failed to appear for the trial. A verdict in the amount of $1,155,000 was entered in favor of Mourning. Final judgment was entered on May 24, 2006, and amended on June 6, 2006, to add Ballast's insurer to the final judgment.
On June 8, 2006, Ballast filed a motion to vacate the default judgment. Ballast argued that the damages judgment was inappropriately entered and violated due process because Mourning, not the trial court, had served Ballast with the order resetting the trial on damages. By way of this motion, Ballast sought to have the damages judgment set aside only on that specific basis. Ballast filed a separate motion to set aside the entire default based on excusable neglect, which is not the subject of this appeal.
At the hearing on Ballast's motion to vacate the default judgment, the trial court acknowledged that it did not serve a copy of the order resetting the damages trial and concluded that, even though Ballast received a copy of the order mailed by Mourning, the amended final judgment had to be set aside because of the due process violation caused by the court's failure to serve the order setting trial in accordance with the requirements of Florida Rule of Civil Procedure 1.440(c).
Florida Rule of Civil Procedure 1.440(c) provides:
(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial.
Trial shall be set not less than 30 days from the service of the notice for trial. By giving the same notice the court may set an action for trial. In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080(a).
Florida Rule of Civil Procedure 1.080(a) provides:
(a) Service; When Required. Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them shall be served in the manner provided for service of summons.
Although rule 1.080(a) provides that pleadings and papers generally need not be served upon a defaulted party, Florida Rule of Civil Procedure 1.080(h)(1)-(3) requires service of an order setting an action for trial and the final judgment.
Florida Rule of Civil Procedure 1.080(h)(1)-(3) provides:
(h) Service of Orders.
(1) A copy of all orders or judgments shall be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment. No service need be made on parties against whom a default has been entered except orders setting an action for trial as prescribed in rule 1.440(c) and final judgments that shall be prepared and served as provided in subdivision (h)(2). The court may require that orders or judgments be prepared by a party, may require the party to furnish the court with stamped, addressed envelopes for service of the order or judgment, and may require that proposed orders and judgments be furnished to all parties before entry by the court of the order or judgment.
(2) When a final judgment is entered against a party in default, the court shall mail a conformed copy of it to the party. The party in whose favor the judgment is entered shall furnish the court with a copy of the judgment, unless it
is prepared by the court, and the address of the party to be served. If the address is unknown, the copy need not be furnished.
(3) This subdivision is directory and a failure to comply with it does not affect the order or judgment or its finality or any proceedings arising in the action.
It is uncontroverted that the trial court did not send the order of October 5, 2005, to Ballast. It is uncontroverted that Mourning did in fact send the order of October 5, 2005, setting trial to Ballast on October 15, 2005. It is further uncontroverted that the trial itself did not take place until December 12, 2005, which is 58 days after Ballast received notice of the jury trial docket.
Ballast argued, and the trial court accepted, that rule 1.440(c) and rule 1.080(h)(1)-(3), must be strictly construed as bright-line rules that the court must send out the order setting an action for trial. Ballast further argued the failure of that to occur required the setting aside of the default final judgment for unliquidated damages.
A trial court's ruling on a motion to vacate under Florida Rule of Civil Procedure 1.540 is reviewed under the abuse of discretion standard. Rosso v. Golden Surf Towers Condo. Ass'n, 711 So. 2d 1298, 1300 (Fla. 4th DCA 1998). However, in this case there appears to be no factual dispute upon which the trial court based its determination to vacate the default final judgment. The trial court based its decision on a pure question of law, i.e., that rule 1.440(c) and rule 1.080(h)(1)-(3) required as a matter of law that the order setting the trial on the unliquidated damages must be served by the court and not by Mourning's counsel. Therefore, since the court's ruling was as a matter of law, our standard of review is de novo.
In support of its position, Ballast cites Lauxmont Farms, Inc. v. Flavin, 514 So. 2d 1133 (Fla. 5th DCA 1987), Pierce v. Anglin, 721 So. 2d 781 (Fla. 1st DCA 1998), and Viets v. American Recruiters Enterprises, 922 So. 2d 1090 (Fla. 4th DCA 2006). We find these cases distinguishable.
The underlying principle inherent in rule 1.440(c) is one of due process. Rule 1.440(c) mandates the parties to litigation are entitled to an order setting a case for trial and the order setting the case for trial shall give at least thirty days notice from the entry of that order to the trial date itself. See Bennett v. Cont'l Chems., Inc., 492 So. 2d 724 (Fla. 1st DCA 1986). This requirement of due process as it relates to claims for unliquidated damages is reiterated in Lauxmont Farms, Pierce, and
Viets. Ballast relies heavily upon Lauxmont Farms, and asserts it is squarely on point. The facts outlined in Lauxmont Farms are somewhat limited and so it is questionable that it is "squarely on point" with the instant case.
Lauxmont Farms involved an appeal from a judgment which awarded unliquidated damages without a trial. Although a default judgment can be entered to establish liability, a trial is necessary to establish unliquidated damages. See Bowman v. Kingsland Dev., Inc., 432 So. 2d 660 (Fla. 5th DCA 1983). The Lauxmont Farms court held that the award of unliquidated compensatory damages by summary judgment is error. The court noted:
After the motion for summary judgment and compensatory damages were [sic] granted, the attorney for appellee sent a notice of nonjury trial to the appellant. The notice was defective because the order was sent by the opposing attorney rather than the court and did not give the requisite thirty-days notice of trial. Fla. R. Civ. P. 1.440(c). Lauxmont Farms did not attend the nonjury trial in which the trial court awarded $1,600,000 in punitive damages and $6,400 in attorney's fees and costs.
Lauxmont Farms, 514 So. 2d at 1134. The court went on to state:
We have stated before that a party has a due process entitlement to notice and an opportunity to be heard on unliquidated damages pursuant to Florida Rule of Civil Procedure 1.440. Bowman v. Kingsland Development, Inc., 432 So. 2d at 663. 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.
Lauxmont Farms, 514 So. 2d at 1134.
Ballast asserts that ...
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