5D08-1880 Krueger v. Ponton

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D08-1880

Case Date: 03/09/2009

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2009

SCOTT KRUEGER AND CYNTHIA KRUEGER, Appellants, v. PAUL E. PONTON, JR. AND MARLENE E. PONTON, Appellees. ________________________________/ Opinion filed March 13, 2009 Non-Final Appeal from the Circuit Court for Brevard County, J. Preston Silvernail, Judge. Jason M. Gordon, Cocoa Beach, for Appellants. David J. Volk and Michael E. Dujovne of Volk Law Offices, P.A., Melbourne, for Appellees. PALMER, C.J., Scott and Cynthia Krueger appeal the order entered by the trial court setting aside a default final judgment which had been entered in their favor. Concluding that damages claimed by the Kruegers were liquidated, we reverse the order setting aside the default final judgment except as to the Kruegers' claims for attorney's fees and costs. The Kruegers filed a complaint against Paul and Marlene Ponton. Pertinent to this appeal, the Kruegers sought treble damages for a bad check pursuant to section 68.065 of the Florida Statutes (2004). Case No. 5D08-1880

According to the complaint, the Kruegers and the Pontons entered into a contract for the sale of the Kruegers' condominium. The Pontons presented the Kruegers with a $10,000.00 check written to Signature GMAC (the escrow agent) as a deposit to be placed in escrow. The check was returned for insufficient funds. The parties' real estate contract provided that if the buyers failed to perform the contract the deposit paid by the buyers would be retained by and for the account of sellers as liquidated damages. The Kruegers obtained a default against the Pontons based on their failure to file or serve a responsive pleading within the time allowed by law. Subsequently, a default final judgment was entered awarding the Kruegers actual damages of $10,000.00, plus statutory treble damages of $30,000.00, together with attorney's fees and costs. Nearly a year after the final judgment was entered, the Pontons filed a motion seeking to set aside the default and default final judgment. The motion alleged: (1) misrepresentation as to the amount of damages by the Kruegers pursuant to Florida Rule of Civil Procedure 1.540(b)(3); (2) the judgment was void pursuant to Florida Rule of Civil Procedure 1.540(b)(4); (3) the Pontons were entitled to receive notice of the hearing on damages but were not provided with notice; (4) the judgment awarded attorney's fees without reflecting any findings with respect to reasonable hourly rate or reasonable hours expended; and, (5) the right to challenge the default and default judgment on any other grounds. At the hearing on their motion to set aside the default final judgment, the Pontons admitted that they were not filing their motion to vacate the default final judgment on the basis of mistake, excusable neglect or meritorious defense. Instead, the Pontons argued that the judgment was either a void judgment or a judgment entered under a

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misrepresentation that the Kruegers were entitled to recover treble damages, since the Kruegers were not the payees of the check. Krueger countered that they were the thirdparty beneficiaries under the real estate contract and, therefore, they were entitled to make a claim for treble damages under section 68.065 of the Florida Statutes. After considering the arguments presented at the hearing, the trial court issued a written order setting aside the default final judgment. The order stated as follows: ORDERED AND ADJUDGED that Defendants' Motions to Set Aside Default and Default Judgment is granted in part and denied in part as follows: 1. The final judgment is set aside pursuant to Fla. R. Civ. P. 1.540(b)(4), as it is a void judgment. The judgment awarded treble damages and attorney's fees pursuant to

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