       Third District Court of Appeal
                               State of Florida

                        Opinion filed September 06, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D17-549
                         Lower Tribunal No. 14-27781
                             ________________


                        Miami Beverly LLC, et al.,
                                   Appellants,

                                        vs.

                                City of Miami,
                                    Appellee.



     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Barbara Areces, Judge.

     Renee M. Smith, for appellants.

      Victoria Méndez, City Attorney, and Kerri L. McNulty and Rachel S.
Glorioso Dooley, Assistant City Attorneys, for appellee.


Before ROTHENBERG, C.J., and SUAREZ and LAGOA, JJ.

     ROTHENBERG, C.J.
      Miami Beverly, LLC, et al., who are the appellants here and the defendants

below, appeal the trial court’s order denying their motion for relief from a final

monetary judgment entered against them on December 24, 2015, after the entry of

a default on February 23, 2015, and a default final judgment on June 4, 2015. In

this appeal, the appellants do not contest the entry of the default or the default final

judgment.1    What they contest is the entry of a final monetary judgment on

December 24, 2015, awarding damages in favor of the appellee, the City of Miami,

in the amount of $3,126,387.62.

      The appellants contend that the damages are unliquidated damages,

requiring an evidentiary hearing and an opportunity to be heard. Because no

evidentiary hearing was conducted, and the appellants were not given an

opportunity to contest the amount of the City of Miami’s damages, the appellants

argue that the final monetary judgment is void. We conclude, however, that the

damages were liquidated, and although the appellants received notice and were

present when the calculation of the damages was addressed, they failed to object or

offer any contrary evidence or proof. Thus, the final monetary judgment is, at best,

voidable, not void. The appellants’ failure to move to vacate or set aside the final

monetary judgment for more than one year after the judgment was entered was,

therefore, untimely. Accordingly, we affirm.

1 The appellants appealed the default final judgment but that appeal was dismissed
for failure to pay the filing fee.

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      The operative facts are as follows. On October 29, 2014, the City of Miami

filed a complaint against the appellants seeking abatement of a public nuisance,

injunctive relief, and monetary damages based on substantial and continuing fines

for code violations at various apartment complexes owned by the appellants.

Attached to the complaint were detailed reports regarding each property, the

specific infractions, information on the liens placed on each property as a penalty,

and the amount and nature of each lien (whether the lien was for a specific amount

or whether it was a “rolling lien” with a specific per diem accrual rate).

      A default was entered on February 23, 2015, and a default final judgment

was entered on June 20, 2015. After the appellants’ initial appeal was dismissed

on December 21, 2015, the trial court entered a final judgment on December 24,

2015, granting a permanent injunction and a money judgment against the

appellants and in favor of the City of Miami.

      On December 28, 2016, over one year after the entry of the final monetary

judgment, the appellants filed their motion to vacate or set aside the judgment

under Florida Rule of Civil Procedure 1.540(b). Rule 1.540(b)(1-3), however, is

unavailable to the appellants as they untimely filed their motion to vacate more

than one year after the final judgment was entered. The appellants have not

alleged that the judgment has been satisfied or released, so rule 1.540(b)(5) also

does not apply. Thus, the only possible remedy available to the appellants under



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rule 1.540(b) is under subsection (4), which permits a court to grant relief from a

void judgment, decree, or order if the motion to vacate is filed within “a reasonable

time.” The issue in this appeal is therefore whether the final monetary judgment is

a void judgment.

      A void judgment is one entered without subject matter or personal

jurisdiction, see Sterling Factors Corp. v. U.S. Nat’l Ass’n, 968 So. 2d 658, 665

(Fla. 2d DCA 2007), or where there has been a violation of the due process

guaranty of notice and an opportunity to be heard. Viets v. Am. Recruiters Enters.,

Inc., 922 So. 2d 1090, 1095 (Fla. 4th DCA 2006). Because there is no dispute that

the trial court had jurisdiction over the matter and the parties, this appeal turns on

whether the damages awarded to the City of Miami were liquidated or

unliquidated, and if liquidated, whether the failure to conduct an evidentiary

hearing or otherwise provide the appellants with an opportunity to contest the

calculation of the damages amounts to a violation of due process.

I. Were the damages liquidated or unliquidated?

      Whether damages are liquidated or unliquidated is a question of law

reviewable de novo. R & B Holding Co., Inc. v. Christopher Advert. Grp., Inc.,

994 So. 2d 329, 331 (Fla. 3d DCA 2008).          Damages are liquidated when the

amount to be awarded can be determined with exactness from the cause of action

as pled, by an agreement by the parties, by an arithmetical calculation, or through



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application of definite rules of law. Wells Fargo Bank, Nat’l Ass’n v. Sawh, 194

So. 3d 475, 480 (Fla. 3d DCA 2016); Bodygear Activewear, Inc. v. Counter

Intelligence Servs., 946 So. 2d 1148, 1150 (Fla. 4th DCA 2006). Damages are not

liquidated if testimony is required to determine how to evaluate the damages.

Ciprian-Escapa v. City of Orlando, 172 So. 3d 485, 489 (Fla. 5th DCA 2015). For

example, a demand for attorney’s fees and costs has been held to be a request for

unliquidated damages because the reasonableness of the requested fees must be

determined. See Dunkley Stucco, Inc. v. Progressive Am. Ins. Co., 751 So. 2d

723, 724 (Fla. 5th DCA 2000); Gold v. M & G Servs., Inc., 491 So. 2d 1297 (Fla.

3d DCA 1986).

      The appellants contend that the damages in this case were unliquidated

because they differ from the amount of damages specifically pled in the complaint

and cannot be calculated by a specific formula. Thus, the appellants argue that

they were entitled to an evidentiary hearing with notice and an opportunity to be

heard. Although a default was entered against the appellants, they would still be

entitled to an evidentiary hearing if the amount of the damages were unliquidated.

See Fla. R. Civ. P. 1.440(c) (“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.”); Watson v. Internet Billing Co., 882 So. 2d 533, 534-

35 (Fla. 4th DCA 2004).



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      However, the record reflects that although the damages awarded to the City

of Miami exceeded the amount pled in the complaint, they were determined

through an arithmetical calculation and were therefore liquidated damages. The

City of Miami’s damages were reflected in documented code enforcement liens

against the appellants’ properties, and this documentation was attached to the

complaint. The increase from the dollar amounts pled and the amount awarded

resulted from the per diem accrual of additional fines imposed since the filing of

the complaint. The complaint also put the appellants on notice that, as to each of

the liens identified, the per diem fines would continue to accrue until the pending

violations were cured. Additionally, the City of Miami provided the trial court

with up-to-date reports supplementing the attachments to the complaint, which

detailed the accrual of the fines, along with sworn statements from both the Chief

of Unsafe Structures and the Director of Code Compliance for the City of Miami

who attested to the veracity of the calculations.

      Because the liens attached to the complaint specified the daily accrual rates,

and the calculation of the damages was based upon a simple arithmetical

calculation, the damages were, as the trial court concluded, liquidated damages.

II. Was the final monetary judgment subject to rule 1.540(b)(4)?

      The answer to this question is self-evident. Because the damages were

liquidated, no evidentiary hearing was required. To be entitled to relief under rule



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1.540(b)(4), the appellants were required to demonstrate that the final monetary

judgment was void.     The failure to provide a defendant with notice and an

opportunity to be heard where the damages are unliquidated is a due process

violation and constitutes fundamental error requiring that the judgment awarding

such damages be set aside. See Sarasota Estate & Jewelry Buyers, Inc. v. Joseph

Gad, Inc., 25 So. 3d 619, 621 (Fla. 2d DCA 2009) (holding that while a trial court

may award liquidated damages without notice, it is fundamental error for the court

to award unliquidated damages without providing the required notice and proof of

the damages); Tand v. C.F.S. Bakeries, Inc., 559 So. 2d 670, 671 (Fla. 3d DCA

1990) (holding that when a claim involves unliquidated damages, the defaulting

party has a due process entitlement to notice and an opportunity to be heard as to

the presentation and evaluation of evidence necessary in order to determine the

amount of the damages).

      The record in the instant case reflects that the appellants received notice and

were afforded an opportunity to contest the amount of damages prior to the entry

of the final monetary judgment. Although the appellants were present for the June

4, 2015 hearing, when the issue of supplementing the lien total to reflect the

current amounts owed was addressed, the appellants were provided with the

supplemental figures on December 9, 2015, and the final monetary judgment was




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entered on December 24, 2015 incorporating the new totals, the appellants did not

object. The appellants therefore cannot prevail under any scenario.

      The appellants cannot prevail under rule 1.540(b)(4) because the monetary

judgment is not void. The damages were liquidated, so no notice or opportunity to

be heard was required. But even if the damages were unliquidated, the appellants

were afforded due process. We, therefore conclude that the trial court did not err

by denying the appellants’ motion for relief of the final monetary judgment filed

more than one year after the entry of the final monetary judgment.

      Affirmed.




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