Opinion
No. 82-278.
July 7, 1983.
Appeal from the Circuit Court, Orange County, B.C. Muszynski, J.
William C. Haldin, Jr., of Matthies Cross, P.A., Ocala, for appellant.
James E. Foster, of Fishback, Davis, Dominick Bennett, Orlando, for appellee.
This matter was determined en banc pursuant to Florida Rule of Appellate Procedure 9.331(a) because of a potential conflict with a decision in another case pending before this court.
We affirm the order appealed which declined to set aside the default judgment. We reverse the award of attorney's fees because no notice of hearing as to the application for fees was served upon the parties in default as required by Florida Rule of Civil Procedure 1.080(h)(1) and Florida Rule of Civil Procedure 1.440(c). In Bowman v. Kingsland, Inc., 432 So.2d 660 (Fla. 5th DCA 1983), we held that a party is entitled to an opportunity to be heard on the question of fees which are unliquidated and therefore notice must be given in compliance with the above cited rules.
AFFIRMED IN PART; REVERSED IN PART.
ORFINGER, C.J., and DAUKSCH, COBB, FRANK D. UPCHURCH, Jr., and COWART, JJ., concur.
SHARP, J., dissents with opinion.
I dissent in this case for the reasons expressed in Bowman v. Kingsland, 432 So.2d 660 (Fla. 5th DCA 1983).