       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                     STUART B. YANOFSKY, ESQ.,
                             Appellant,

                                    v.

                           ANDREW ISAACS,
                              Appellee.

                             No. 4D18-2963

                             [July 31, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No.
062014CA012232AXXXCE.

  Stuart B. Yanofsky of Stuart B. Yanofsky, P.A., Plantation, for
appellant.

  Ryan D. Gesten of George Gesten McDonald, PLLC, Lake Worth, for
appellee.

KUNTZ, J.

    Stuart Yanofsky appeals the circuit court’s summary judgment order
in favor of Andrew Isaacs. We affirm in part, reverse in part, and remand
for a trial on damages.

                              Background

   Isaacs filed a complaint against Yanofsky for legal malpractice relating
to Yanofsky’s representation of him in a dissolution-of-marriage
proceeding. Isaacs alleged that Yanofsky represented him at a hearing to
adjudicate his exceptions to a general magistrate’s report but failed to
inform him—before the window for appeal expired—“that matters had been
adjudicated adversely to him.”

   After Yanofsky failed to respond to Isaacs’s discovery requests, Isaacs
contacted Yanofsky’s office to request the outstanding discovery. When
Yanofsky failed to respond, Isaacs sought and obtained an order
compelling Yanofsky to respond to the discovery requests within ten days.
   When the court-ordered deadline passed without a response to the
discovery, Isaacs sought sanctions against Yanofsky and sought and
obtained a second court order compelling responses to the outstanding
discovery.

   Again, the court-ordered deadline passed without a response to the
discovery. The court held a hearing and sanctioned Yanofsky for violating
the court’s discovery orders. The court struck Yanofsky’s answer to the
complaint and ordered him to pay the attorney’s fees Isaacs incurred in
seeking to obtain the outstanding discovery.

   In the order sanctioning Yanofsky, the court noted that Yanofsky had
produced a “purported case file” for the dissolution-of-marriage suit. But
the court found the late production at a deposition satisfied neither the
requirement to respond to discovery nor the court’s orders. 1

   After the court struck Yanofsky’s answer, Isaacs moved for summary
judgment on his legal-malpractice claim. He argued that he was entitled
to liability in his favor because the court struck Yanofsky’s answer and
there were no other issues of fact.

    The court held a hearing on Isaacs’s motion, deferred ruling, and
ordered Yanofsky to file a response to the motion within fourteen days.
But Yanofsky did not respond within the time set by the court. So Isaacs
moved for sanctions for violating the court’s order and sought the entry of
judgment in his favor. Yanofsky subsequently moved to strike Isaacs’s
affidavit in support of summary judgment, arguing that Isaacs’s damages
were unliquidated.

   The circuit court granted Isaacs’s motion for summary judgment and
entered judgment in his favor.

                                 Analysis

   Yanofsky appeals the court’s judgment in Isaacs’s favor on both liability
and damages. We affirm, without further discussion, the court’s judgment
as to liability. But we agree with Yanofsky’s argument on damages and
reverse in part.



1 After the sanctions hearing, Yanofsky served responses to the discovery
requests.

                                     2
    We have explained that “[e]ven in a circumstance in which a default
judgment is entered against the defendant on the issue of liability, if jury
trial has been demanded by either party, the defendant has the right to
jury trial on the issue of damages when such damages are not liquidated.”
Wolfe v. Steven A. Smilack, P.A., 100 So. 3d 166, 167 (Fla. 4th DCA 2012)
(quoting Guirlinger v. Goldome Realty Credit Corp., 593 So. 2d 1135, 1137
(Fla. 1st DCA 1992)).

   Both Isaacs and Yanofsky demanded a jury trial in their pleadings. And
although the court struck Yanofsky’s answer, his demand for a jury trial
remained viable. See id. at 166 (citing Powell v. S. Bell Tel. & Tel. Co., 448
So. 2d 72 (Fla. 3d DCA 1984)).

    As a result, because the damages were not liquidated, it was improper
to enter judgment based on the amount set forth in Isaacs’s damages
affidavit. “Damages are liquidated when the amount to be awarded can be
determined with exactness from a pleaded agreement between the parties,
by an arithmetical calculation, or by application of definite rules of law.”
DYC Fishing, Ltd. v. Martinez, 994 So. 2d 461, 462–63 (Fla. 3d DCA 2008)
(citing Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 662 (Fla. 5th DCA
1983)). “Damages are unliquidated ‘if the ascertainment of their exact sum
requires the taking of testimony to ascertain facts upon which to base a
value judgment.’” Id. at 463 (quoting Bowman, 432 So. 2d at 663).

   Here, the damages sought in the complaint were not liquidated, and
the court erred in relying solely on Isaacs’s damages affidavit. Thus, the
portion of the court’s judgment determining damages must be reversed.

                                Conclusion

   The court’s judgment is affirmed in part and reversed in part. We affirm
the court’s determination of liability. But we reverse the portion of the
court’s judgment determining damages and remand the case for a trial on
unliquidated damages.

   Affirmed in part, reversed in part, and remanded.

LEVINE, C.J., and DAMOORGIAN, J., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.



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