Defaulted Party Still Entitled to Hearing on Attorneys’ Fees – ZHOU v. CATERPILLAR FINANCIAL SERVICES CORP.

Caterpillar filed a complaint for damages and replevin against three defendants. After service on the defendants, they failed to answer, and Caterpillar secured a clerk’s default against them all. Two of the defendants attempted to set aside the default and Caterpillar filed its motion for final judgment based upon the clerk’s default.

The summary judgment and motions to set aside the default were at the same time. The trial court upheld the entry of the clerk’s default and entered final summary judgment in favor of Caterpillar. The final judgment included the award of attorneys’ fees based on an affidavit filed by Caterpillar.

The Fourth DCA found that the defaulted defendants were still entitled to have an opportunity to contest unliquidated damages, like attorneys’ fees.

Zhou v. Caterpillar Financial Services Corp., 38 Fla. L. Weekly D112a (Fourth DCA Jan 9, 2013)

Offer of Judgment Not Valid in Case With Monetary and Non-monetary Claims – Horowitch v. Diamond Aircraft Indus., Inc.

In a case seeking monetary and non-monetary relief, pursuant to section 768.79, Florida Statutes (2011), Diamond Aircraft served Horowitch with an offer of judgment for $40,000. The offer of judgment stated:

 Diamond Aircraft offers to settle this case on the following terms:

1. Diamond Aircraft shall pay Plaintiff the sum of forty thousand dollars ($40,000.00).

2. This offer is intended to resolve all claims that were or could have been asserted by Plaintiff against Diamond Aircraft in the Amended Complaint filed March 15, 2007. The condition of this offer is that Plaintiff will dismiss his pending claims against Diamond Aircraft, with prejudice to re-file.

3. This offer shall remain open for thirty (30) days from the date hereof. Failure to accept this offer within thirty (30) days shall be deemed a rejection of this offer under Fla. Stat. § 768.79(1).

4. This offer shall be accepted by filing a written acceptance with the Court within 30 days after service. Fla. Stat. § 768.79(4).

The offer was not accepted and, after entry of judgment, Diamond Aircraft sought fees per 768.79.

The Florida Supreme Court determined that Diamond Aircraft was not entitled to recover its attorneys’ fees because “section 768.79 does not apply to cases that seek both equitable relief and damages.”   The court left open the door open to the use of an offer that was intended to settle only the monetary portion of the lawsuit, rather than the entire claim.

DIAMOND AIRCRAFT INDUSTRIES, INC. v. ALAN HOROWITCH, 38 Fla. L. Weekly S17a (Fla.  Jan. 10, 2013).

Vorbeck v. Betancourt – Dismissal of Pure Bill of Discovery

In this case, the plaintiffs filed a complaint for a “pure bill of discovery” to obtain information attempting to confirm plaintifffs’ suspicions that a 50% owner of the subject company had misappropriated corporate assets.  The trial court dismissed the complaint, and the appellate court affirmed, on the basis that “the bill of discovery was improper because the [plaintiffs] (1) filed it merely to substantiate their suspected claims and (2) possessed an adequate remedy at law,” namely, a statutory basis to obtain corporate records.

Vorbeck v. Betancourt, 38 Fla. L. Weekly D57a (Fla. 3d DCA Dec. 26, 2012)