NATIONAL CITY BANK, as successor by merger to Fidelity Federal Bank Trust, Appellant,
ACCENT MARKETING ASSOCIATES, LLC d/b/a Accent Homes, Inc., a Florida corporation, Napoleon G. Bequer, Glenna G. Bequer, Salvador Ramos and John W. Dalton, Jr., Appellees.
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Stephen T. Maher, Don A. Lynn and John W. Bustard of Shutts & Bowen, LLP, Miami, for appellant.
Stephen E. Tunstall, P.A., Coral Gables, for appellees, Napoleon G. Bequer and Glenna G. Bequer.
We hold that our decision in a previous appeal of this case did not preclude the trial court on remand from deciding a legal issue that was not presented and considered in the former appeal.
This case concerns a dispute between Napoleon and Glenna Bequer, Accent Marketing Associates, LLC, and National City Bank that arose following the bank's loan of money to the Bequers for Accent's construction of a home. The lawsuit began when Accent sued the Bequers to foreclose on a construction lien for work it did on the Bequers' home. The Bequers filed a third-party complaint against the bank; they alleged that the bank had improperly disbursed money to Accent, which constituted a breach of the lending contract by the bank.
The bank did not respond to the third-party complaint, and the clerk entered a default. The circuit court entered a default judgment against the bank. The bank moved to set aside the default and to vacate the final judgment, making two separate and distinct arguments. First, the bank argued that its failure to answer the Bequers' complaint was the result of excusable neglect, it had meritorious defenses, and it had exercised due diligence upon discovering the default, so that the default and final judgment should be set aside. Second, the bank alternatively argued that the final judgment should be vacated. On this point, the bank asserted it should be able to contest the amount of the Bequers' damages, even if it could not contest liability, because the damages were unliquidated. The bank argued the Bequers were not automatically entitled to the entire amount of the disputed disbursement, since some of the paid-for work may have actually been completed.
The circuit court granted the bank's motion to set aside the default and final judgment on the ground that the bank had shown excusable neglect, meritorious defenses, and due diligence. Because of this ruling, the court expressly did not address the bank's second argument turning on whether the damages at issue were unliquidated.
The Bequers appealed the circuit court's order. In Bequer v. National City Bank ( Bequer I ), 46 So.3d 1199, 1200 (Fla. 4th DCA 2010), this court reversed, holding that the bank had failed to establish excusable neglect. We addressed the limited scope of the holding, saying, " We do not address the issue of meritorious defense or due diligence, since we find appellee failed to demonstrate excusable neglect, and as such, the trial court erred in vacating the default final judgment." Id. at 1201. We did not reach or mention the bank's due process argument.
On remand, the bank moved for a hearing on its argument that due process allowed it an opportunity to contest unliquidated damages. The bank observed that the trial court had never ruled on that issue and that this court did not consider it in Bequer I. The Bequers attacked this motion as " a second bite of the apple."
They argued that the bank's motion was barred by operation of the doctrines of res judicata and law of the case, a violation of the opinion in Bequer I and the mandate in that appeal. The circuit judge denied the bank's motion.
The circuit court had never ruled on the due process aspect of the bank's attack on the default judgment and, as a result, this court never considered the issue. If the damages sought by the Bequers' third-party complaint were unliquidated, then the bank was entitled to have the damages issue set for trial pursuant to Florida Rule of Civil Procedure 1.440. See Viets v. Am. Recruiters Enters., ...