Third District Court of Appeal
State of Florida
Opinion filed September 29, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-0214
Lower Tribunal No. 19-15831
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Yassiel Cabre and Nancy Ascanio Cabre,
Appellants,
vs.
Carrington Mortgage Services, LLC,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Beatrice
Butchko, Judge.
Hernandez Law, P.L., and Andy R. Hernandez, for appellants.
Akerman, LLP, and Nancy M. Wallace (Tallahassee), William P. Heller
(Fort Lauderdale), and Eric M. Levine (West Palm Beach), for appellee.
Before LOGUE, GORDO, and BOKOR, JJ.
BOKOR, J.
Appellants, Yassiel Cabre and Nancy Ascanio Cabre, appeal the
striking of their pleadings and the entry of default and default final judgment
in favor of Appellee, Carrington Mortgage Services, LLC. Based on a review
of the record, the Cabres’ actions do not rise to the level of “contumacious
disregard of the court’s authority,” bad faith, willful disregard, or gross
indifference necessary to strike pleadings. Mercer v. Raine, 443 So. 2d 944,
946 (Fla. 1983) (explaining that only a “deliberate and contumacious
disregard of the court’s authority will justify [the striking of pleadings], as will
bad faith, willful disregard or gross indifference to an order of the court, or
conduct which evinces deliberate callousness”) (citations omitted); see also
Ledo v. Seavie Res., LLC, 149 So. 3d 707, 710 (Fla. 3d DCA 2014) (requiring
courts to make “a determination and findings of willful or deliberate disregard
of a court’s authority” before striking pleadings as a sanction).
Here, the Cabres filed their answer and affirmative defenses as well as
responses to initial discovery propounded by Carrington. Thereafter, the
record reflects that the Cabres’ counsel withdrew approximately a month
after filing an answer and responding to discovery. The striking of pleadings
and entry of default and default final judgment that give rise to this appeal all
2
occurred within an approximately six-week period in which the Cabres were
either seeking new counsel or had just obtained new counsel.1
Importantly, much of the activity occurred during the time allowed the
Cabres to find new counsel which doesn’t reflect a “refusal to participate in
this litigation in good faith.” Accordingly, we vacate the order striking the
pleadings, and the default and default final judgment entered in favor of
Carrington,2 and remand to the trial court for further proceedings on the
merits consistent with this opinion.
1 A review of the timeline reveals no bad faith, unreasonable delay, or
contumacious disregard of any court order or deadline. The Cabres
answered the complaint on September 18, 2019. Their counsel moved to
withdraw on November 19, 2019, which motion was granted by the trial court
on December 3, 2019. Said order gave the Cabres twenty days to find new
counsel. Nonetheless, (1) Carrington moved, ex parte, to compel discovery,
which the court granted the next day; (2) the Cabres were ordered to provide
better answers to Carrington’s discovery requests with a deadline that
coincided with the end of the stay; and (3) Carrington obtained an order from
the court granting its motion to overrule certain objections to discovery and
requiring a response by December 30, 2019, with no further extensions.
Significantly, the Cabres timely moved for an extension of time to obtain new
counsel. Further, despite the December 30, 2019 deadline, on December
24, 2019, Carrington moved to strike the Cabres’ pleadings and for entry of
default based on the Cabres’ alleged noncompliance with their discovery
requests. With the Cabres’ motion for extension of time still pending, the trial
court granted Carrington’s motion to strike pleadings and entered default
against the Cabres. The Cabres’ new counsel made an appearance on
January 17, 2020 and promptly filed a motion to vacate default and in
opposition to entry of default final judgment. The above timeline belies any
willful disregard of the court’s authority.
2 Because we vacate the default final judgment for the reasons set forth in
this opinion, we need not consider the alternative argument that the default
3
Reversed and remanded.
final judgment improperly reduced nonliquidated damages to a judgment
without a proper hearing.
4