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On April 21, 2008, landlord filed a suit for tenant eviction and damages tenant in County Court. On May 2, 2008,landlord  moved for entry of clerk’s default and default final judgment on Count I for removal of tenant and possession. On May 8, 2008, the County Court entered its Final Default Judgment on Count I for Removal of Tenant and Possession.

On May 19, 2008, landlord moved for entry of clerk’s default and default final judgment on Count II for unpaid rent, attorney’s fees and court costs,  but did not send a copy to the tenant. On May 20, 2008, without holding a hearing,  the County Court granted the landlord’s motion for damages, attorney’s fees, and court costs.

On June 19, 2008,  tenant appealed,  alleging a defective 3 day notice and that he was  entitled to an evidentiary hearing on the damages count and proper notice thereof.

The appellate court ruled that the tenant waived the defense of defective three-day notice by failing to comply with section 83.60(2), Florida Statutes. See § 83.60(2) Fla. Stat. (2008); Stanley v. Quest Int’l Inv., Inc., 50 So. 3d 672, 673 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2636a]. Section 83.60(2), Florida Statutes, plainly requires the payment of rent into the court registry if the tenant chooses to assert any defense other than payment, and failure to make the necessary deposit constitutes an absolute waiver allowing for immediate default judgment in favor of the landlord. See Id. Moreover, in Bell v. Kornblatt, 705 So. 2d 113 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D264a],

As to the damages,  the appellate court ruled that a default admits a plaintiff’s entitlement to liquidated damages under a well-pled cause of action, but not to unliquidated damages, citing  Bodygear Activewear, Inc. v. Counter Intelligence Services, 946 So. 2d 1148, 1150 (Fla. 4th DCA 2006) [32 Fla. L. Weekly D35a]. A defaulting party has a due process entitlement to notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial interpretation of the amount of unliquidated damages.1 Id.

The reasonable amount of attorney’s fees and taxable costs to be awarded are unliquidated. Even though tenant  was in default,  he was entitled to an evidentiary hearing and proper notice thereof in order to determine the reasonable amount of attorney’s fees and taxable costs to be awarded. As a result, the County Court’s Final Default Judgment on Count II for Damages for Unpaid Rent must be affirmed in part, as to the total amount of damages for unpaid rent, and reversed in part, as to the reasonable amount of attorney’s fees and taxable costs. See Bodygear Activewear, Inc., 946 So. 2d at 1151.

LEHRER, v. COWEN,  Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-028069CACE. L.T. Case No. 08-003610COCE(61). July 23, 2013. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Arlene S. Backman, Judge. 21 Fla. L. Weekly Supp. 137b

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1Damages 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. Bodygear Activewear, Inc., 946 So. 2d at 1150. However, damages are not liquidated if a Court must consider testimony or evidence to ascertain facts upon which to base a value judgment. Id.

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