Third District Court of Appeal
State of Florida
Opinion filed March 1, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-331
Lower Tribunal No. 12-21621
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The Bank of New York Mellon, etc.,
Appellant/Cross-Appellee,
vs.
Theresa Pearson, et al.,
Appellees/Cross-Appellants.
An Appeal and Cross-Appeal from the Circuit Court for Miami-Dade
County, Marvin H. Gillman, Senior Judge.
Kass Shuler and Melissa A. Giasi (Tampa); Aldridge Pite and Matthew A.
Ciccio (Delray Beach), for appellant/cross-appellee.
Ice Appellate and Thomas Erskine Ice (Royal Palm Beach), for
appellees/cross-appellants.
Before SALTER, LOGUE and SCALES, JJ.
SALTER, J.
In this appeal and cross-appeal from a final judgment in a residential
mortgage foreclosure case, the appellant (“Bank”) appeals: the involuntary
dismissal of its foreclosure action with prejudice; the trial court’s unsolicited ruling
that the action would be amended to constitute a suit on the companion promissory
note; the cancellation of the note; and the entry of judgment on the note against the
borrower/appellee, Theresa Pearson. Ms. Pearson’s husband, Ronald Pearson,
filed a notice of cross-appeal from the same final judgment.
In the main appeal, we reverse the final judgment and remand the case for
further proceedings. Here, as in Deutsche Bank National Trust Co. ex rel. LSF
MRA Pass-Through Trust v. Perez, 180 So. 3d 1186 (Fla. 3d DCA 2015), and
Nationstar Mortgage, LLC v. Castro, 193 So. 3d 69 (Fla. 3d DCA 2016), the trial
court abused its discretion in excluding the Bank’s witnesses as a sanction for late
disclosure and then dismissing the foreclosure complaint when the Bank was
unable to present its case.
A dismissal as a sanction for a discovery violation is “an abuse of discretion
where the trial court fails to make express written findings of fact supporting the
conclusion that the failure to obey the court order demonstrated willful or
deliberate disregard . . . .” Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004); Toll
v. Korge, 127 So. 3d 883, 887 (Fla. 3d DCA 2013). The required findings are set
out in Kozel v. Ostendorf, 629 So. 2d 817, 88 (Fla. 1993).
2
To strike a witness as a sanction for failure to comply with pre-trial
disclosures requires a determination that calling the undisclosed witness will
prejudice the opponent. Binger v. King Pest Control, 401 So. 2d 1310, 1313-14
(Fla. 1981). No such determination was made in this case, making the sanction an
abuse of discretion. See Preudhomme v. Bailey, 4D15-2831, 2017 WL 436370 at
*3 (Fla. 4th DCA Feb. 1, 2017) (finding that court erred in dismissing complaint
with prejudice as sanction in absence of findings). The final judgment must be
reversed and remanded for a trial de novo.
Regarding the cross-appeal, the erroneous determination by the trial court
that the complaint would be amended to allege a cause of action on the promissory
note—an amendment neither sought by the Bank, set forth in the complaint, or
proven1—must be reversed as a consequence of our reversal of the final judgment
on other grounds. We observe in passing, however, that the cross-appeal was
improperly filed by Ronald W. Pearson and is subject to dismissal.
The final judgment Mr. Pearson sought to cross-appeal did not implicate any
of his interests. He is not liable for anything under the judgment on the note
(which he did not sign), and the mortgage foreclosure against him was dismissed in
that judgment. A party cannot appeal a wholly favorable order. Colonnade 101
SE, Inc. v. Cordero, 194 So. 3d 446, 448 n.1 (Fla. 3d DCA 2016). See Philip J.
1 The Bank confessed error on the unsought amendment and resultant judgment
for thirty-four monthly payments on the note.
3
Padovano, Fla. Appellate Practice § 10:4, Entitlement to review—Standing (2016
ed.). Theresa Pearson might have been substituted in his stead if a motion in
proper form had been filed. Fla. R. App. P. 9.040(d).
The final judgment is reversed and remanded to the circuit court for a trial
de novo. Our reversal also disposes of the cross-appeal.
4