Opinion
Case No. 5D21-2786
04-01-2022
James F. TRAINOR, Jr., Appellant, v. BULU2, LLC, A Florida Limited Liability Company, Appellee.
Karl W. Bohne, Jr., and Christopher J. Coleman, of Schillinger & Coleman, P.A., Melbourne, for Appellant. Eric J. Sanchez, of Eric J. Sanchez, P.A., Miami, for Appellee.
Karl W. Bohne, Jr., and Christopher J. Coleman, of Schillinger & Coleman, P.A., Melbourne, for Appellant.
Eric J. Sanchez, of Eric J. Sanchez, P.A., Miami, for Appellee.
LAMBERT, C.J. James F. Trainor, Jr., who was the defendant below, timely appeals the trial court's order summarily denying his Florida Rule of Civil Procedure 1.540(b) motion to set aside a default final judgment and a later amended default final judgment entered against him in favor of BULU2, LLC ("Plaintiff"). These judgments quieted title to Plaintiff in certain real property and also included separate awards of attorney's fees in favor of Plaintiff and against Trainor.
A detailed opinion is unnecessary to resolve this appeal or to otherwise address Trainor's various arguments for reversal. In that each final judgment was entered without Plaintiff noticing its motion for default judgment or its amended motion for default judgment for hearing, resulting in the trial court entering the two judgments without a hearing, we reverse the trial court's order denying Trainor's motion and remand with directions that those portions of the default final judgment and the amended default final judgment that awarded attorney's fees to Plaintiff be vacated. See Ciotti v. Hubsch , 302 So. 3d 497, 500 (Fla. 5th DCA 2020) (en banc); Cellular Warehouse, Inc. v. GH Cellular, LLC , 957 So. 2d 662, 665–67 (Fla. 3d DCA 2007).
Trainor has not challenged the portions of the default final judgment and the amended default final judgment that quieted title. We also note that the amended default final judgment contains a separate $8,000 fine that Trainor was ordered to pay Plaintiff, apparently as some form of sanction for his alleged failure to comply with an earlier order to compel his signature on a corrective deed. While we question the need for the signature as title to the property described in the proposed deed was already quieted in Plaintiff by virtue of the judgment, because this sanction was included in the amended default final judgment without a hearing, thus depriving Trainor of notice and an opportunity to be heard in mitigation before this specific and precise amount of the civil contempt sanction was imposed, we direct that this sum is also to be vacated from the amended default final judgment. See Chetram v. Singh , 937 So. 2d 716, 719 (Fla. 5th DCA 2006) ("A person facing civil contempt sanctions is entitled to notice and an opportunity to be heard.").
Lastly, as an award of attorney's fees is not statutorily authorized in a quiet title action, see Price v. Tyler , 890 So. 2d 246, 251–52 (Fla. 2004), and there is no contractual basis for Plaintiff to be awarded attorney's fees here, on remand, the trial court, following a properly noticed hearing, shall enter a new final judgment that only includes an award for taxable court costs.
The entry of this judgment is necessitated because in the two default final judgments at issue, the trial court awarded an undifferentiated lump sum for attorney's fees and court costs; and our record does not show what part of each lump sum award was solely attributed to court costs.
REVERSED and REMANDED, with directions.
WALLIS and TRAVER, JJ., concur.