The Florida Bar

Florida Bar News

Ask Judge Smith: ‘Default Judgments and Damages’

Special to the News Columns

Ask Judge SmithQ. Judge Smith, what is a default judgment? Does a default judgment end the case? Thank you, Dee.

A. Due process of law requires notice and an opportunity to be heard. Plaintiffs begin lawsuits by filing complaints against defendants. The purpose of a complaint is to tell a defendant what he did, how it damaged the plaintiff, and the remedy the plaintiff seeks.

The plaintiff gives the defendant notice by having him served with the complaint and a summons. The summons informs the defendant of what he must do to defend the claim and the consequences of ignoring the lawsuit. The summons advises the defendant when he must respond to the case by filing and serving a motion or an answer denying liability. Otherwise, the summons informs the defendant he may lose the case by inaction.

Defendants have the right to be heard if they timely contest their lawsuits. Otherwise, they waive that right and open themselves to losing by default.

The Florida Rules of Civil Procedure allow a plaintiff to move for a default judgment when a defendant fails to file or serve any paper by the deadline. Filing a paper means submitting it to the court’s clerk. Serving a paper means handing, mailing, or emailing a response to the plaintiff or opposing lawyer.

When a court renders a default judgment against a defendant, he admits liability for the claim and liquidated damages. A default judgment does not establish unliquidated damages, which the jury must decide.

“Liquidated damages” are objective, quantifiable, and known. “Unliquidated damages” are subjective and must be determined by the trier of fact. Another way to think of it is that liquidated damages don’t require the exercise of discretion to decide. Unliquidated damages do. Let’s use two examples of the damages sought in lawsuits to explain the difference.

An Example of Liquidated Damages

The parties had a car accident, and the plaintiff’s car sustained $7,430.42 of property damage. She sued for this amount and attached the body shop’s repair bill and her proof of payment to the complaint. Here, the property damages are known and capped and thus liquidated. A default judgment would establish both liability and the damages owed without a trial or hearing.

An Example of Unliquidated Damages

A store customer suffered a slip and fall. He sued the store for his injuries, pain, suffering, and lost income. A default judgment would establish liability, but the jury must decide how much it will take to make her whole.

Conclusion

Defendants should hire lawyers and respond to complaints on time. Plaintiffs should seek default judgments against defendants who ignore their deadlines.

Judge J. Layne Smith is a bestselling author and public speaker. He serves Florida’s Second Judicial Circuit.

News in Photos