               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT

WINDING WOOD CONDOMINIUM VI                  )
ASSOCIATION, INC., a Florida non-profit      )
corporation,                                 )
                                             )
              Appellant,                     )
                                             )
v.                                           )          Case No. 2D15-2959
                                             )
LINDA WALLS,                                 )
                                             )
              Appellee.                      )
                                             )

Opinion filed July 8, 2016.

Appeal from the Circuit Court for Pinellas
County; Bruce Boyer, Judge.

Keith D. Skorewicz and H. Web Melton,
III, of Bush Ross, P.A., Tampa, for
Appellant.

Lynn E. Hanshaw of Langford & Myers,
P.A., Tampa, for Appellee.


WALLACE, Judge.

              Winding Wood Condominium VI Association, Inc. (Winding Wood),

appeals a final judgment entered in favor of Linda Walls following the entry of a clerk's

default. Winding Wood challenges the trial court's order denying its motion to set aside

the default. Winding Wood also challenges the trial court's entry of a judgment against

it for unliquidated damages without proper notice and a jury trial. We affirm the order
denying the motion to set aside the default, but we reverse the entry of the final

judgment to the extent the judgment awarded money damages and attorney's fees in

favor of Ms. Walls and remand for a jury trial on the issue of damages and

reconsideration of the award of attorney's fees. We affirm the final judgment in all other

respects.

              I. THE FACTS AND THE PROCEDURAL BACKGROUND

              Ms. Walls filed a complaint asserting four claims against Winding Wood:

Count One, breach of contract; Count Two, negligence and breach of fiduciary duty;

Count Three, breach of the common law obligation of good faith and fair dealing; and

Count Four, injunctive relief. The claims arose out of alleged water intrusion into Ms.

Walls' condominium unit and the failure of Winding Wood to take appropriate action to

address the problem. Ms. Walls requested a jury trial on the claims alleged in counts

one, two, and three of the complaint.

              Winding Wood was served with the summons and a copy of the complaint

on December 2, 2014. After Winding Wood failed to file a timely response to the

complaint, Ms. Walls obtained a clerk's default against Winding Wood on December 31,

2014. Winding Wood filed a motion to set aside the default on January 14, 2015.

Winding Wood alleged that its failure to respond timely to the complaint resulted from

excusable neglect, and it supported the motion with an affidavit from its president.

              At a hearing held on Winding Wood's motion on April 28, 2015, the trial

court denied the motion to set aside the default. The trial court entered an order

specifically finding that Winding Wood had failed to establish excusable neglect or a




                                           -2-
meritorious defense to warrant setting aside the default.1 The trial court ruled that there

was nothing incorrect about the clerk's default and that the default should stand.

              While the motion to set aside the default was pending, Ms. Walls filed a

"Plaintiff's Motion for Default Summary Judgment" and a supporting affidavit. In her

motion, Ms. Walls reiterated the facts alleged in her complaint and asserted that she

was entitled to a summary judgment for damages and injunctive relief. In her affidavit,

Ms. Walls claimed entitlement to damages stemming from the loss of use of her

condominium unit, for extra expenses for meals consumed at restaurants, for

maintenance fees and assessments, and for costs related to determining the source of

the leak. She also requested reasonable attorney's fees and costs. Ms. Walls stated

that her damages would continue to accrue until the repair of the exterior wall fronting

her unit was completed, and she requested injunctive relief requiring Winding Wood to

repair the exterior wall so that she could complete the necessary repairs within the unit.

Ms. Walls' counsel also filed an affidavit in support of a claim for reasonable attorney's

fees in the amount of $10,078. An affidavit from Winding Wood's president disputed the

facts asserted in the affidavit and the calculation of the damages claimed by Ms. Walls.

              On May 14, 2015, Winding Wood filed a "Motion in Opposition to Motion

for Default Summary Judgment and Motion to Dismiss/Stay Based on Subject Matter

Jurisdiction." In this motion, Winding Wood argued for the first time that despite the trial

court's denial of the motion to set aside the default, any judgment entered against it

would be "void" because Ms. Walls' counsel failed to serve Winding Wood's counsel



              1
              Ms. Walls did not dispute that Winding Wood had acted with due
diligence in moving to set aside the default.



                                            -3-
with notice of the application for default. Winding Wood cited two cases from this court

in support of its argument: Makes & Models Magazine, Inc. v. Web Offset Printing Co.,

13 So. 3d 178 (Fla. 2d DCA 2009), and U.S. Bank National Ass'n v. Lloyd, 981 So. 2d

633 (Fla. 2d DCA 2008). Winding Wood also attached affidavits and copies of e-mails

in support of its claim that Ms. Walls' counsel had knowledge that Winding Wood was

represented by counsel with regard to Ms. Walls' claims and that it intended to defend

any action filed to assert those claims. In addition, Winding Wood claimed for the first

time (as a meritorious defense) that the trial court lacked subject matter jurisdiction over

Count Four seeking injunctive relief because Ms. Walls was required to submit that

claim to arbitration under section 718.1255(4)(a), Florida Statutes (2014), and to provide

it with prearbitration notice in accordance with section 718.1255(4)(b)(1), (3).

               The trial court conducted a hearing on Ms. Walls' motion for "default

summary judgment." There was no testimony taken at this hearing. The trial court

decided the matter on the basis of the motion and the affidavits filed in support thereof.

After the hearing, the trial court entered a "Default Final Judgment" in favor of Ms. Walls

and against Winding Wood. The "Default Final Judgment" ordered Winding Wood to

"take all necessary steps to repair the exterior leak occurring at [Ms. Walls' condominium

unit] . . . within thirty (30) days of the date of this order." In addition, the trial court

awarded Ms. Walls $20,941.54 "representing damages through January 21, 2015, as

identified in Plaintiff's Affidavit in Support of Motion for Summary Judgment" and

reasonable attorney's fees in the amount of $5546.20. This appeal followed.

                    II. WINDING WOOD'S APPELLATE ARGUMENTS




                                               -4-
              On appeal, Winding Wood argues that the trial court erred in failing to set

aside the default because it established grounds for relief from the default, including

excusable neglect, a meritorious defense, and due diligence in moving to set aside the

default. In addition, Winding Wood argues that the trial court erred in denying the

motion to set aside the default because Ms. Walls' counsel knew that Winding Wood

was represented by counsel and intended to defend the action but counsel failed to

serve notice of the application for the default as required. Finally, Winding Wood

argues that because the damages claimed by Ms. Walls were unliquidated in amount,

the trial court erred in entering a judgment against it without conducting a jury trial to

determine the amount of damages.2

                                       III. DISCUSSION

A. The Denial of the Motion to Set Aside the Default

              We review an order denying a motion to vacate a clerk's default under an

abuse of discretion standard. Hornblower v. Cobb, 932 So. 2d 402, 405 (Fla. 2d DCA

2006) (citing Marshall Davis, Inc. v. Incapco, Inc., 558 So. 2d 206, 207-08 (Fla. 2d DCA

1990)). Further, we apply the well-established principle preferring the decision of an

action on its merits. Id. at 405-06.

              We first address Winding Wood's argument regarding the trial court's

refusal to set aside the default based on the claim of excusable neglect, a meritorious

defense, and due diligence in moving to set aside the default. It would add nothing to

the jurisprudence of this state to detail the extensive factual background underlying



              2
                Winding Wood does not challenge the propriety of the trial court's award
of injunctive relief based upon the default. Thus we do not address this issue.



                                             -5-
Winding Wood's assertions of excusable neglect and a meritorious defense. It is

sufficient to say that we conclude that the trial court did not abuse its discretion in

finding that Winding Wood failed to establish either of these prerequisites for setting

aside the default. Winding Wood's appellate arguments in this regard do not warrant

further discussion.3

              We now consider Winding Wood's argument that the trial court should

have set aside the default because Ms. Walls' counsel knew that Winding Wood was

represented by counsel and that it intended to defend the claims; nevertheless, Ms.

Walls' counsel failed to serve notice of application for the default. "If the plaintiff is

aware that the defendant is represented by counsel and intends to defend the litigation

on the merits, it is required to serve the defendant with notice of the application for

default and to present the matter to the court for entry of the default." Makes & Models,

13 So. 3d at 181. "A default that does not comply with this requirement 'must be

vacated without regard to whether the defendant can establish a meritorious defense or

whether the defendant can demonstrate inadvertence or excusable neglect.' " Id.

(quoting Lloyd, 981 So. 2d at 640).

              In its motion to set aside the default, Winding Wood did not raise an issue

under Makes & Models and Lloyd about Ms. Walls' failure to provide notice of her intent


              3
                As noted above, Winding Wood first argued that Ms. Walls was required
to arbitrate her claim for equitable relief and to provide it with written prearbitration
notice in its "Motion in Opposition to Motion for Default Summary Judgment and Motion
to Dismiss/Stay based on Subject Matter Jurisdiction" after the trial court had denied its
motion to set aside default. As discussed below, Winding Wood's arguments asserting
additional grounds to set aside the default in this motion were untimely. Moreover,
section 718.1255 does not apply to Ms. Walls' claim for equitable relief because her
demand that Winding Wood repair a common area does not relate to a "dispute" within
the meaning of the statute. See § 718.1255(1).



                                              -6-
to seek a default. Instead, Winding Wood relied exclusively—and unsuccessfully—on

its argument that it was entitled to relief based upon excusable neglect, a meritorious

defense, and its due diligence in moving to set aside the default.

              The argument based on Ms. Walls' failure to give notice of the application

for the default arose after the trial court had denied Winding Wood's motion to set aside

the default. At that point, Winding Wood might have filed a motion for reconsideration of

the trial court's denial of its motion to set aside the default and set the matter for a

hearing. Although the trial court would not have been required to hear the motion to

reconsider its denial of Winding Wood's request to set aside the default, it had the

discretion to do so. See The Panama City Gen. P'ship v. Godfrey Panama City Inv.,

LLC, 109 So. 3d 291, 292 (Fla. 1st DCA 2013) ("[W]hile 'a legally insufficient motion to

vacate a default cannot be corrected as a matter of right by a motion for reconsideration

or hearing, a trial court does have the inherent discretionary power to reconsider any

order entered prior to the rendition of the final judgment in the cause.' " (quoting City of

Hollywood v. Cordasco, 575 So. 2d 301, 302 (Fla. 4th DCA 1991))).

              But Winding Wood did not file a motion for reconsideration and set it for

hearing. Instead, Winding Wood filed a document titled "Motion in Opposition to Motion

for Default Summary Judgment and Motion to Dismiss/Stay Based on Subject Matter

Jurisdiction." Winding Wood did not set this "motion" for hearing; it just argued the

matter at the hearing on Ms. Walls' "Plaintiff's Motion for Default Summary Judgment."

Counsel for Ms. Walls responded to the argument, asserting as an issue of fact that it

was by no means clear that counsel would be representing Winding Wood in the

defense of Ms. Walls' claims. The trial judge did not address Winding Wood's argument




                                             -7-
based on Makes & Models and Lloyd either orally at the hearing or in the written

judgment that followed. Accordingly, whatever merit Winding Wood's argument may

have had, we are unable to determine from the record whether or not the trial court

chose to exercise its discretion to consider the issue.

              After a careful review of the record, we conclude that Winding Wood never

properly raised the issue about Ms. Walls' failure to give notice of the application for

default in the trial court because it did not raise the issue in its motion to set aside the

default or in a motion for reconsideration. See Tillman v. State, 471 So. 2d 32, 35 (Fla.

1985) ("In order to be preserved for further review by a higher court, an issue must be

presented to the lower court and the specific legal argument or ground to be argued on

appeal or review must be part of that presentation if it is to be considered preserved.").

Even if Winding Wood preserved the issue by raising it in its "Motion in Opposition to

Motion for Default Summary Judgment," it did so at a time when the trial court had the

discretion to decline to consider the argument. See Panama City, 109 So. 3d at 292.

              We also note that counsel for Ms. Walls disputed the factual basis

underlying Winding Wood's argument. Although both parties relied on an exchange of

e-mails in support of their positions, neither of them offered any further evidence in

support of their contentions or asked the trial court to resolve the underlying disputed

question of fact.

              In addition, we disagree with Winding Wood's contention that failure to

provide notice of the default would render any subsequent judgment "void." Instead, the

asserted procedural deficiency was a matter that Winding Wood might have argued as

a ground for setting aside the default. See Makes & Models, 13 So. 3d at 181; Lloyd,




                                             -8-
981 So. 2d at 640. Under these circumstances, we do not find an abuse of discretion or

reversible error in a refusal by the trial court to consider the matter or in a ruling against

Winding Wood if the trial court actually considered the issue.

B. The Entry of Judgment for Unliquidated Damages without a Trial

              Winding Wood argues that the trial court erred in entering the "Default

Final Judgment" in favor of Ms. Walls for damages and attorney's fees that were

unliquidated in amount without conducting a jury trial on the issue of damages. At the

hearing held on Ms. Walls' motion for "default summary judgment," Winding Wood

objected to the entry of the requested judgment and pointed out that the damages

requested by Ms. Walls were unliquidated in amount and that she had requested a jury

trial on the claims asserted in counts one, two, and three of her complaint. Winding

Wood argued that it would be error for the trial court to enter a judgment for unliquidated

damages under these circumstances.

              With regard to the entry of a judgment based on a default, this court has

explained as follows:

                      A default admits every cause of action that is
              sufficiently well-pled to properly invoke the jurisdiction of the
              court and to give due process notice to the party against
              whom relief is sought. A default also admits the plaintiff's
              entitlement to liquidated damages due under the pleaded
              cause of action, but not unliquidated damages. Damages
              are liquidated when the proper amount to be awarded can
              be determined with exactness from the cause of action as
              pleaded; i.e., from a pleaded agreement between the
              parties, by an arithmetical calculation or by application of
              definite rules of law. . . . [D]amages are not liquidated if the
              ascertainment of their exact sum requires the taking of
              testimony to ascertain facts upon which to base a value
              judgment.




                                             -9-
Szucs v. Qualico Dev., Inc., 893 So. 2d 708, 712 (Fla. 2d DCA 2005) (quoting Bowman

v. Kingsland Dev., Inc., 432 So. 2d 660, 662-63 (Fla. 5th DCA 1983)). "Whether the

damages are liquidated by the complaint is a question of law." Maggiano v. Whiskey

Creek Prof'l Ctr., LLC, 160 So. 3d 535, 536 (Fla. 2d DCA 2015) (citing Talbot v.

Rosenbaum, 142 So. 3d 965, 967 (Fla. 4th DCA 2014)).

              None of the sums comprising the $20,941.54 award of damages made to

Ms. Walls could have been ascertained from the complaint. The individual amounts

awarded by the court were as follows: (1) the loss of use of the condominium unit, $468

per month for seven months, $3276; (2) extra expenses for food consumed at

restaurants for seven months, $11,942.14; maintenance fees and assessments,

$5544.40; and (4) costs incurred to determine the source of the leak, $179. All of the

damages awarded were unliquidated in amount. The trial court awarded Ms. Walls an

additional $5546.20 for attorney's fees and costs. The claims for reasonable attorney's

fees and costs are considered to be unliquidated damages. See Paramo v. Floyd, 154

So. 3d 477, 478 (Fla. 2d DCA 2015) (citing Holiday Gulf Builders, Inc. v. Tahitian

Gardens Condo., Inc., 443 So. 2d 143, 145 (Fla. 2d DCA 1983)). Thus Winding Wood

was entitled to proper notice and a jury trial on the unliquidated damages sought by Ms.

Walls, despite the entry of the default. See Fla. R. Civ. P. 1.440(c) ("In actions in which

the damages are not liquidated, the order setting the action for trial shall be served on

parties who are in default in accordance with rule 1.080."); Holiday Gulf Builders, 443

So. 2d at 144 (holding "that the trial court erred in entering a final [default] judgment

awarding damages and attorney's fees . . . without submitting the issue of damages to a




                                            - 10 -
jury [where the plaintiff] requested a jury trial in two of the three counts of the

complaint").

                                     IV. CONCLUSION

               For the foregoing reasons, we affirm the order denying Winding Wood's

motion to set aside the default. However, we reverse the "Default Final Judgment" to

the extent that it awarded money damages and attorney's fees to Ms. Walls and remand

for a jury trial on the issue of damages and reconsideration of the award of attorney's

fees. We affirm the "Default Final Judgment" in all other respects.

               Affirmed in part, reversed in part, and remanded.



MORRIS and BLACK, JJ., Concur.




                                            - 11 -
