Bank of New York Mellon v. Pearson

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).

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 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.

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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.

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