# Third District Court of Appeal

State of Florida

Opinion filed May 1, 2019.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D18-1369

Lower Tribunal No. 11-27179

________________



### Lincoln Mews Condominium Association, Inc.,

Appellant,

vs.



### Stephanie Harris,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Rodolfo A.

Ruiz, Judge.

Gasdick, Stanton & Early, P.A., and August J. Stanton, III and Diva N.

Totten (Orlando), for appellant.

Crabtree & Auslander and John G. Crabtree, Charles M. Auslander, Brian C.

Tackenberg and Emily Cabrera, for appellee.

Before SALTER and MILLER, JJ., and LEBAN, Senior Judge.

SALTER, J.Lincoln Mews Condominium Association, Inc. (the “Association”), appeals

an order denying its motion to vacate a default final judgment against the

Association for $500,000.00 entered in favor of a unit owner (“Ms. Harris”) in

September 2013. We reverse the order and remand the case to the trial court to

vacate the void final judgment. 1

The 2011 Lawsuit and Its Pro Se Phase

Ms. Harris commenced her circuit court lawsuit in 2011. Initially she was

represented by counsel. The complaint is difficult to decipher, purporting to have

been brought by Ms. Harris “individually and on behalf of [the Association]”

against the President of the Association (“Mr. Garcia”) and the Association itself.

The initial complaint contended that a restrictive covenant gave unit owners at the

Lincoln Mews Condominium a right of first refusal which was being violated by

Mr. Garcia. Paragraph 13 of the complaint alleged:

[Ms. Harris] has, and will put forth evidence in this motion, that Mr.

Garcia has the intent to defraud the other unit owners by short selling

his unit, by selling to a straw buyer and then reselling the property at

a price above market value and thereby escheating the bank of some

$30,000.00 and the Association of the certificate of use and other

monies owed.

1 The final judgment in question was erroneously entered by a predecessor trial

judge based on representations by Ms. Harris’s then-counsel at a motion calendar

hearing at which neither the Association nor any attorney representing the

Association was present

— for the appropriate reasons described in this opinion.

2Ms. Harris sought an order “[c]ommanding” the Association to enforce the

covenant, declaring that Mr. Garcia’s alleged sale could not proceed without

complying with the “first right of refusal” [sic], and “[c]ommanding” Mr. Garcia to

comply with an unspecified “certificate of use violation which has running a lien

since August 4th, 2011.” A second count sought a declaratory judgment regarding

the “interpretation and application of the covenants written in the Association’s

bylaws.”

Mr. Garcia, through counsel, filed a motion to dismiss on numerous

grounds, including (1) a contention that “Harris can not bring an action on behalf

of [the Association] without approval from a majority of the Board of Directors”;

and (2) Ms. Harris’s failure to attach the Declaration of Condominium or the

Association bylaws to her complaint. (Original emphasis). Two weeks later, Ms.

Harris moved for a default against Mr. Garcia and the Association (despite the fact,

confirmed by a docket entry, that Mr. Garcia had responded to the complaint).

Shortly after this, Ms. Harris and her attorney parted ways, 2 and Ms. Harris

began to file and serve pro se pleadings. Two of these are particularly pertinent

here. In a “FIRST AMMENDED COMPLAINT” [sic] filed December 22, 2011,

but indicating that it was served on an unspecified day in November 2011, Ms.

Harris dropped the Association as a defendant in the caption and body of the three2 Ms. Harris filed a stipulation for substitution as a pro se, and her attorney

obtained an order discharging him from further responsibility in the lawsuit.

3count amended complaint. The pro se first amended complaint is a mashup of

alleged claims for “theft of service upon a senior citizen,” “self serving use of lien

as extortion,” and Mr. Garcia’s purported “refusal to quiet title due to lien.” The

pleading states no legally cognizable claim and never mentions a claim for relief as

against the Association.

Only five days later, Ms. Harris filed a second pro se “1st-First Amended

Complaint” against the Association. Styled a “motion” in the body of the

pleading, Ms. Harris alleged that she “represents the Majority of the Board of

Directors, and currently owns 73% of the physical property held by [the

Association].” In this pleading, Ms. Harris asked for the denial of Mr. Garcia’s

motion to dismiss and for a default order against the Association “for damages in

the amount of $2.4 Million Dollars.” That damages amount was not itemized or

explained in any detail. Although the December 22, 2011, first amended

complaint showed that the Association had been dropped as a defendant, Ms.

Harris did not have her second pro se first amended complaint (actually her second

pro se complaint) served on the Association.

In February of 2012, Ms. Harris retained substitute counsel, who filed a

“Third Amended Complaint” against Mr. Garcia, four other (newly added)

defendants, and the Association; this amendment also was not served on the

4Association, despite the fact that the Association had been dropped as a defendant

two months earlier.

The Third Amended Complaint, even more colorful than the prior versions,

claimed “2.4 million dollars in property damages committed by [the Association]”

and “1 million dollars for each of the 5 SLAPP suits and reputation of the

persecution of [Ms. Harris], in mental anguish, lost career loss of sale of property

and interference of audit, perjured complaints to multiple government agency”

[sic]. Next, Ms. Harris’s attorney moved for judicial default against the

Association, with a certificate of service by mail to the Association building (1525

Lenox Avenue, Miami Beach) rather than to any unit number or by identifying any

authorized individual. Ms. Harris also voluntarily dismissed all of the individual

defendants, listing the Association as the only remaining defendant (and ignoring

Ms. Harris’s pro se amended complaint that had dropped the Association as a

defendant in that pleading). The then-presiding judge granted the motion, which

had simply omitted the procedural history. No one from the Association appeared

to oppose the motion.

In September 2013, Ms. Harris moved for a final judgment against the

Association based on the judicial default. Through counsel, she represented that

“[a]ffidavits of amounts due and owing, costs and attorney’s fees will be filed

under a separate filing,” in order to liquidate Ms. Harris’s claim. Any such

5documents are not in the record and are not reflected on the docket. There is no

indication that any such affidavits were provided to the Association.

Days later, the then-presiding trial judge granted the motion and entered a

“final judgment after default,” in favor of Ms. Harris and against the Association,

for $500,000.00. Neither the pleadings nor any itemized summary establishes a

basis for that damages amount.

The case went into hibernation for four years, whereupon Ms. Harris

brought in new counsel for collection, moved for the appointment of a receiver

over the entire condominium, and moved for a writ of garnishment. At this point,

the Association retained counsel and moved for relief from judgment under Florida

Rule of Civil Procedure 1.540(b), reciting the tangled procedural history and

additional facts:

 “Lincoln Mews Condominium Association, Inc.” was a fictitious

name and not a corporation. The entity to be served at the outset of

the case was “Lincoln Mews Condominium, Inc.”

 The summons for the condominium defendant was served on the

daughter of Ms. Harris, who was not an officer or agent of the

condominium.

6 The condominium address used for service of process was a unit

owned by an individual who was not the condominium’s registered

agent or otherwise authorized to accept the original complaint.

The motion to vacate further alleged that the judgment was void because the

Association was dropped from the case in the pro se first amended complaint and

was rendered without a trial on unliquidated damages (and without notice of the

alleged damages to the allegedly-defaulted defendant). Following a hearing before

the successor trial judge, the motion to vacate was denied. This appeal followed.

Analysis

The Association’s motion to vacate the default final judgment is reviewed

under the de novo standard of review in this case, as it was only timely if the

underlying judgment is void. Nationstar Mortgage, LLC v. Diaz

, 227 So. 3d 726,

729 (Fla. 3d DCA 2017). The unusual record in this case indicates that the final

judgment entered by the predecessor judge was indeed void.

Loss of Personal Jurisdiction by Dropping Party

Ms. Harris’s pro se first amended complaint named only Mr. Garcia as a

defendant, thereby dropping the Association as a defendant. As a result of that

pleading, the trial court lost in personam jurisdiction over the Association. See Sas

v. Postman

, 687 So. 2d 54 (Fla. 3d DCA 1997). This was a legal problem created

by a pro se plaintiff. That action by Ms. Harris required the second and later

7version of a complaint against the Association to be served with new process. Ms.

Harris did not do so.

These authorities remove this case from the precedent advanced by counsel

for Ms. Harris at the hearing on the motion to vacate, Kathleen G. Kozinski, P.A.

v. Phillips

, 126 So. 3d 1264 (Fla. 4th DCA 2013). In that case a final judgment

was voidable, not void, because there were indications that the defendant was

aware of the action. Here, the pleadings after the first amended complaint dropped

the Association did not restore jurisdiction, required no action on the part of the

Association, and were unaffected by notice or constructive notice to the

Association. A summons properly served was required to establish jurisdiction

following the deletion of the Association from the caption, body, and prayer for

relief in Ms. Harris’s pro se first amended complaint, as if the case against the

Association was commencing anew. See Seymour v. Panchita Inv., Inc.

, 28 So. 3d

194 (Fla. 3d DCA 2010) (failure to perfect service renders a subsequent judgment

void, not voidable).

Failure to Liquidate Damages

The classification of damages as “liquidated” or “unliquidated” is also

reviewed under the de novo standard of review. See Miami Beverly LLC v. City

of Miami

, 225 So. 3d 989, 992 (Fla. 3d DCA 2017). “The failure to provide a

defendant with notice and an opportunity to be heard where the damages are

8unliquidated is a due process violation and constitutes fundamental error requiring

that such damages be set aside.” Id. at 993.

Ms. Harris provided no information showing a liquidated damages amount

or an amount claimed totaling $500,000.00. No notice of any basis for that amount

was filed or provided to the Association, despite Ms. Harris’s representation in her

motion for entry of a final default judgment that “[a]ffidavits of amounts due and

owing, costs and attorney’s fees will be filed under a separate filing.” The

judgment rendered on the fanciful 3 and unliquidated claims in Ms. Harris’s various

complaints, with no prior notice of the amount sought provided to the allegedlydefaulting defendant or otherwise made a part of the record, is void. See CiprianEscapa v. City of Orlando

, 172 So. 3d 485, 488-91 (Fla. 5th DCA 2015)

(discussing the requirements of Florida Rule of Civil Procedure 1.440(c) and

related precedent).

Conclusion

Following a thorough review of the strange and protracted record before us,

we conclude that the final judgment entered in 2013 by the predecessor judge was

3 Ms. Harris’s Third Amended Complaint, her final claims for damages, sheds no

light on the quantum of the alleged property damages, misapplications of funds,

receivership expenses, “SLAPP suit” damages, and “gross diminishment in value.”

Rather, the prayer for relief seeks “an award of compensatory damages in an

amount to be determined at time of trial,” “an award of general damages in an

amount to be proven at time of trial,” and “an award of punitive damages in an

amount to be determined at time of trial.”

9(1) void in its entirety, as to both liability and damages, because Ms. Harris

dropped the Association as a party and never re-served the Association with

original process, and (2) also, and independently, void as to the award of

damages

— a figure having no discernible basis in the operative complaint or any

other part of the circuit court record. The order below is reversed and the case

remanded for the entry of an order vacating the final judgment after default.

10