Third District Court of Appeal
State of Florida
Opinion filed May 4, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1855
Lower Tribunal No. 13-33700
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Nationstar Mortgage, LLC,
Appellant,
vs.
Alejandro Castro, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, William L.
Thomas, Judge, and Marvin Gillman, Senior Judge.
Akerman LLP and Nancy M. Wallace (Tallahassee) and William P. Heller
(Fort Lauderdale) and Eric M. Levine (West Palm Beach), for appellant.
Graham Legal and Ashley Jaye Arends, for appellee, Cookies & Crackers
Corp.
Before SUAREZ, C.J., and SHEPHERD and SALTER, JJ.
SALTER, J.
Nationstar Mortgage appeals an order involuntarily dismissing its residential
foreclosure action and an order denying a motion for rehearing regarding the
dismissal. Concluding that the dismissal was an unwarranted and excessive
sanction, we reverse.
Appellee Alejandro Castro obtained a $352,000 residential mortgage loan as
part of his purchase of a Miami Beach condominium in 2006. He defaulted on the
note and mortgage in 2009. In 2013, following the transfer of the loan and original
note and mortgage to Nationstar, and after the acquisition of the mortgaged
condominium by appellee Cookies & Crackers Corp. (“C&C”), Nationstar
commenced the underlying circuit court foreclosure action.
In early 2015, the case was set for trial. Three weeks before trial, counsel
for C&C took the deposition of Nationstar’s corporate representative. Following
the deposition, however, that witness was noticed to appear in another trial in
another Florida circuit. A week before the scheduled trial of the present case,
Nationstar notified opposing counsel that another previously-listed witness would
be assigned to testify as corporate representative. After discussion, the attorneys
jointly moved for a continuance of the non-jury trial in order to alleviate any
prejudice. Their respective clients consented to the joint motion.
On the date scheduled for trial, the trial court denied the joint motion to
continue. C&C then moved to exclude Nationstar’s proposed corporate witness on
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the grounds that the witness who had been deposed was not made available, and
the trial court granted the motion. At that point, C&C’s attorney moved for an
involuntary dismissal. The trial court granted that motion as well and later denied
Nationstar’s motion for rehearing. This appeal followed.
Analysis
Nationstar’s counsel represented to the trial court that its proffered corporate
representative would have testified to the same facts, figures, and corporate records
as the representative who had been deposed. The court and counsel for C&C did
not propose an adjournment to allow a deposition to be taken to confirm that fact.
Although C&C’s counsel mentioned Binger without citation (Binger v. King
Pest Control, 401 So. 2d 1310 (Fla. 1981)), the trial court did not address any of
the factors detailed in that case. The exclusion of a proffered witness on the facts
presented here, even an unlisted witness, “is a drastic remedy which should pertain
in only the most compelling circumstances.” Walters v. Keebler Co., 652 So. 2d
976, 977 (Fla. 1st DCA 1995) (citing Binger, 401 So. 2d 1310). In the present
case, the trial court did not consider what prejudice, if any, might be suffered by
C&C, nor did it address any lesser steps or sanctions that might have adequately
addressed the substitution of one duly-listed corporate representative for another
witness also listed in Nationstar’s pretrial catalogue.
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Here, as in a recent appeal involving a similar record, Deutsche Bank
National Trust Co. ex rel. LSF MRA Pass-Through Trust v. Perez, 180 So. 3d
1186 (Fla. 3d DCA 2015), prejudice was neither demonstrated nor properly
considered by the trial court. And here, as in that case, we reverse and vacate the
trial court’s order of dismissal and remand the case for further proceedings
consistent with this opinion.
Reversed; order of dismissal vacated.
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