March 5, 2008

Sare v. Rosa—Unpublished Opinion Reverses Punitive Damages Obtained in Default Judgment

This unpublished opinion serves as a reminder of the rule that a plaintiff cannot recover punitive damages in a default judgment unless the plaintiff first serves the defendant with a notice specifying the amount of punitive damages sought. Here, the plaintiff obtained a punitive damages award by default but the Third Appellate District reversed because the plaintiff had not served the required notice.

The opinion contains a rather pointed concurring opinion by Justice Robie: "I completely concur in the opinion of my colleagues and write separately only to point out that the conduct of the trial judge in granting the default judgment is inexcusable. The appellate courts should not be burdened by appeals from default judgments exceeding the demand of the complaint. The law is long settled and every trial judge in the state should be aware of it."