CAROL REIVE, APPELLANT,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF THE RESIDENTIAL ASSET SECURITIZATION TRUST 2005-A 16, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-P UNDER THE POOLING AND SERVICING AGREEMENT DATED DECEMBER 1, 2005, APPELLEE
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Florida appellate court reversed a mortgage foreclosure judgment and remanded for new trial, holding that the trial court abused its discretion by denying a continuance motion and admitting undisclosed witnesses and documents, constituting trial by ambush and violating due process.
A trial court abuses its discretion by denying a continuance motion and admitting witnesses and documents not timely disclosed to the defendant, constituting surprise in fact and a due process violation.
[1] Denial of a continuance motion combined with admission of witnesses and documents not timely disclosed to the opposing party constitutes trial by ambush and violates due…
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Join FLexlaw to unlock all legal intelligence“The failure to give adequate notice of evidence and witnesses constitutes a due process violation”
Court explaining that late disclosure of evidence violates due process rights, citing S.Z. v. Dep't of Children & Family Servs.
A bank filed an unopposed motion to continue a mortgage foreclosure trial ten days before trial due to a servicer transfer, which the trial judge deni…
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Ten days prior to trial on a mortgage foreclosure which had been pending for three years, the plaintiff bank filed an unopposed motion to continue the trial because the loan was part of a “service transfer,” and a new servicer would have to get acquainted with the loan and documents prior to trial. The trial judge hearing the motion denied it. Four days prior to trial, the bank provided notice of several new witnesses and documents, to which the defendant objected. Then, over the objection of the defendant, the judge hearing the trial allowed the bank to use witnesses and documents in its case which were not listed in the pretrial stipulation and constituted a violation of a pretrial discovery order.
We conclude that the court’s denial of the continuance together with the admission of witnesses and documents not timely disclosed to the defendant constituted “surprise in fact” in this case and violated Binger v. King Pest Control, 401 So.2d 1310, 1313-14 (Fla.1981). The failure to give adequate notice of evidence and witnesses constitutes.a due process.violation, S.Z. v. Dep’t of Children & Family Servs., 873 So.2d 1277, 1277 (Fla. 3d DCA 2004) (delivery of discovery packet the .Friday before a Monday-trial constituted “trial by ambush” and violated the defendant’s due process rights). As the trial court abused its discretion in denying the motion to continue the trial, and then in permitting the introduction of extremely late-listed witnesses-and documents to the prejudice of the defendant, we reverse and remand for a new trial.
WARNER, MAY and GERBER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Montero v. Corzo, 320 So. 3d 976 (Fla. 3d DCA 2021)…The Binger analysis is not limited in application to witnesses; it applies with equal force to the untimely disclosure of exhibits. See, e.g., Thompson v. Wal-Mart Stores, Inc., 60 So. 3d 440 (Fla. 3d DCA 2011); Reive v. Deutsche Bank Nat. Tr. Co., 190 So. 3d 93 (Fla. 4th DCA 2015); Claussen v. State, Dept. of Transp., 750 So. 2d 79 (Fla. 2d DCA 1999); Tomlinson-McKenzie v. Prince, 718 So. 2d 394 (Fla. 4th DCA 1998); Smith v. Univ. Med. Ctr., Inc., 559 So. 2d 393 (Fla. 1st DCA 1990). ---PAGE 8--- proceedi…1 / 2
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HSBC Bank Mortg. Corp. (USA) v. Lees, 201 So. 3d 699 (Fla. 4th DCA 2016)…the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony.” Binger, 401 So. 2d at 1314. This court recently addressed the element of “surprise in fact” in Reive v. Deutsche Bank National Trust Co., 190 So. 3d 93 (Fla. 4th DCA 2015), a mortgage foreclosure action. There, a bank moved to continue trial after ,the subject loan was transferred to a new servicer, which would in turn need .time to get acquainted with the loans and documents before trial, but the…
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Callari v. Winkeljohn, 329 So. 3d 795 (Fla. 3d DCA 2021)…citing Deutsche Bank Nat. Tr. Co. v. Perez, 180 So. 3d 1186 (Fla. 3d DCA 2015); Lugo v. Fla. E. Coast Ry. Co., 487 So. 2d 321 (Fla. 3d DCA 1986); J.S.L. Constr. Co. v. Levy, 994 So. 2d 394 (Fla. 3d DCA 2008); Reive v. Deutsche Bank Nat. Tr. Co., 190 So. 3d 93 (Fla. 4th DCA 2015)). Because the trial court failed to make any findings on prejudice or analyze the Binger factors, we reverse the punitive damages award and remand for a new trial on punitive damages. Reversed, in part, and remanded.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)
- Diaz v. State, 873 So. 2d 1277 (Fla. 3d DCA 2004)