CONTRACTS: BREACH OF CONSTRUCTION CONTRACT: BREACH OF LOAN AGREEMENT; CIVIL PROCEDURE: DEFAULT: EXCUSABLE NEGLECT: JUDGMENT: RES JUDICATA: LAW OF THE CASE; CONSTITUTIONAL LAW: DUE PROCESS: UNLIQUIDATED DAMAGES: OPPORTUNITY TO BE HEARD

National City Bank v. Accent Marketing Associates, LLC, ___ So. 3d ___, 36 Fla. L. Weekly D2394 (Fla. 4th DCA November 2, 2011)

The plaintiff agreed to construct a home for the defendants, and the bank agreed to finance the construction.  A dispute arose between the parties, and the plaintiff sued the defendants to foreclose on a construction lien.  The defendants filed a third party claim against the bank for breach of the loan agreement by improperly disbursing funds to the plaintiff.  When the bank failed to respond to the third party complaint, the clerk entered a default, and the trial court entered a final judgment.  The bank moved to set aside the default based upon excusable neglect, a meritorious defense, and due diligence in filing its motion, and to set aside the final judgment based upon the failure to conduct a trial on unliquidated damages.  The trial court granted the motion based upon excusable neglect, a meritorious defense, and due diligence.  The appellate court reversed based solely upon the absence of excusable neglect.  On remand, the bank moved to vacate the final judgment based upon its entitlement, under due process of law, to contest unliquidated damages.  The trial court denied the motion, but the appellate court reversed.  Res judicata did not bar consideration of the bank’s motion because the trial court was confronted with successive appeals in the same case.  The doctrine of law of the case did not bar consideration of the bank’s motion because the issue of due process was not considered during the former appeal.