Deutsche Bank National Trust Co. Ex Rel. LSF MRA Pass-Through Trust v. Perez ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed December 9, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-58
Lower Tribunal No. 09-79235
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Deutsche Bank National Trust Company on behalf of LSF MRA
Pass-Through Trust,
Appellant,
vs.
Estrella Perez, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Marvin H.
Gillman, Senior Judge.
Burr & Forman, LLP, and Brendan A. Sweeney and Douglas J. Stamm,
(Fort Lauderdale), for appellant.
Thomas P. Murphy; Jay Levy, for appellees.
Before SUAREZ, C.J., and WELLS and SCALES, JJ.
WELLS, Judge.
Deutsche Bank National Trust Company on behalf of LSF MRA Pass-
Through Trust appeals from an order dismissing this mortgage foreclosure action
because the bank failed to provide the name of the corporate representative who
would testify at trial. Because no prejudice was suggested much less demonstrated
below as a consequence of this failure, and because no basis exists to impose such
a harsh sanction, we reverse and remand this matter for trial.
This action commenced on October 28, 2009, and was set for trial on seven
different occasions over the next five years. On October 21, 2014, this matter was
set for trial during the week of December 8, 2014.
The order setting this matter for trial provided that no later than fifteen days
before the date of the scheduled trial the parties were to “furnish opposing counsel
with a written list containing the individual proper names and addresses of all non-
expert witnesses . . . intended to be called at trial.” The order further provided that
failure to “strictly comply” might result in sanctions including limiting proof or
witnesses, and that only those witnesses listed would be allowed to testify.
On November 18 and December 4, 2014, the bank filed witness and exhibit
lists wherein it listed several non-expert witnesses including the “Corporate
representative of Vericrest, Financial, Inc. . . . , servicer for Deutsche Bank . . . .”
No specific name for the corporate representative was provided. Perez filed no
pretrial witness or exhibit list.
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The case proceeded to trial on December 9, 2014. When the bank
announced that it was calling Scott Logue as its corporate representative, the
defense objected arguing that because the bank had failed to specifically name Mr.
Logue as its representative he could not be called to testify. In response, the bank
explained that a specific name had not been provided because it did not know who
would be available to testify at trial and that this failure was not for any improper
purpose or harmful. The bank further suggested that because no prejudice had
been demonstrated it should either be permitted to proceed or the matter should be
continued to mitigate any potential harm. The court below summarily rejected
these arguments, stating that it was unconcerned about prejudice to Perez and was
punishing the bank for failing to strictly comply with its pre-trial order:
MR. SWEENEY [for the bank]: Judge, what’s the prejudice to
Ms. Perez? She’s incarcerated. What’s the prejudice to the land
trust? They are probably renting the property out.
THE COURT: I’m not interested in prejudice anymore,
notwithstanding the District Court of Appeals conversations about
prejudice all the time. If you don’t follow the Court orders, you have
consequences. The consequences are you don’t have a witness. The
consequences of not having a witness is you might not be able to
prove your case. If you can’t prove your case, you get a voluntary
dismissal or involuntary dismissal. We are disposing of cases. You
all have the responsibility of presenting cases to the Court. Your
client filed a lawsuit and put it into the jurisdiction of the Court.
When you put it into the bowels of the Court, God knows what is
going to happen. It’s like making sausage. That’s what happens in
these cases.
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The bank’s sole witness was stricken, and relying upon its inherent authority
to enforce its orders, the court below granted an involuntary dismissal.
We reverse that order first because the court below failed to consider those
factors set forth by the Florida Supreme Court in Binger v. King Pest Control, 401
So. 2d 1310, 1314 (Fla. 1981), for determining whether the testimony of an
undisclosed witness should be excluded. As that court stated, while a trial court
has the authority to exclude the testimony of an undisclosed witness, the decision
to do so turns in large measure on demonstrated prejudice to the opposing party, as
well as the ability to avoid any resulting prejudice and considerations relating to
the orderly administration of justice:
[A] trial court can properly exclude the testimony of a witness whose
name has not been disclosed in accordance with a pretrial order. The
discretion to do so must not be exercised blindly, however, and should
be guided largely by a determination as to whether use of the
undisclosed witness will prejudice the objecting party. Prejudice in
this sense refers to the surprise in fact of the objecting party, and it is
not dependent on the adverse nature of the testimony. Other factors
which may enter into the trial court’s exercise of discretion are: (i) the
objecting party’s ability to cure the prejudice or, similarly, his
independent knowledge of the existence of the witness; (ii) the calling
party’s possible intentional, or bad faith, noncompliance with the
pretrial order; and (iii) the possible disruption of the orderly and
efficient trial of the case (or other cases). If after considering these
factors, and any others that are relevant, the trial court concludes that
use of the undisclosed witness will not substantially endanger the
fairness of the proceeding, the pretrial order mandating disclosure
should be modified and the witness should be allowed to testify.
Binger, 401 So. 2d at 1313-14 (footnotes omitted).
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Here, the trial court incorrectly refused to even consider whether Perez
would be prejudiced by allowing the bank’s witness to testify at trial. See Allstate
Prop & Cas. Ins. Co. v. Lewis, 14 So. 3d 1230, 1234 (Fla. 1st DCA 2009) (“The
supreme court’s opinion in Binger is clear that testimony should be excluded only
after the trial court determines it is prejudicial to the opposing party.”); Lugo v.
Fla. E. Coast Ry. Co., 487 So. 2d 321, 322, 323-24 (Fla. 3d DCA 1985) (finding
that the trial court’s exclusion of the appellant’s expert witness for failure to
strictly comply with the pre-trial order directing the parties to provide the “names
and addresses of all expert witnesses which they intended to call” was
“indefensible” where the court failed to consider the Binger factors “which should
have entered into its exercise of discretion”). The record in this case also fails to
demonstrate any prejudice. While the bank did not provide the name of the
specific corporate representative it intended to call, Perez was on notice that the
bank intended to call a corporate representative who would testify as to the
relevant documents that had been produced during discovery. And there is no
suggestion that Perez sought to either to secure the identity of the bank’s witness or
to take that person’s deposition before trial. In short, there was no “showing of
surprise in fact as to the existence of a witness or as to how the witness would
testify.” Lugo, 487 So. 2d at 324; Casa de Alabanza v. Bus Service, Inc., 669 So.
2d 338, 339 (Fla. 3d DCA 1996) (finding the trial court erred in prohibiting a
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corporate representative from testifying where, although the corporate entity
“failed to list the name of any witness in particular that it intended to call at trial in
the pre-trial witness catalog,” the appellant did indicate in its witness list that a
representative of the appellant would be called to testify at trial); see also Pascual
v. Dozier, 771 So. 2d 552, 554 (Fla. 3d DCA 2000) (“[I]t is error to strike a
relevant witness where the opposing party is aware of the proposed testimony.”).
Because prejudice was neither considered nor demonstrated, the bank’s witness
should not have been stricken. Nor should the action have been dismissed.
Secondly, while we appreciate the lower court’s reluctance to grant a
continuance in light of the age of this action and recognize the trial court’s inherent
authority to manage its docket, we nevertheless find, as we did in Pascual, that “a
trial court should exercise caution when the witness sought to be excluded is a
party’s only witness or one of the party’s most important witnesses because if the
witness is stricken, that party will be left unable to present evidence to support his
or her theory of the case.” Pascual, 771 So. 2d at 554; see also Progressive
Consumers Ins. Co. v. DECO Natural Stone, Inc., 827 So. 2d 336, 336 (Fla. 3d
DCA 2002) (finding the trial court abused its discretion in striking the plaintiff’s
primary witness, resulting in a directed verdict for the defendant, where the failure
to timely provide a formal witness list was non-prejudicial). In sum, imposing the
legal equivalent of the death penalty in this case for the instant infraction,
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“punished the appellant far out of proportion to the magnitude of the alleged
offense.” Id.
Accordingly, we reverse the order under review and remand for trial.
Reversed and remanded.
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