NATIONSTAR MORTGAGE, LLC, APPELLANT,
v.
ALEJANDRO CASTRO, ET AL., APPELLEES
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Nationstar Mortgage appeals the involuntary dismissal of its residential foreclosure action after the trial court excluded its substitute corporate representative witness and granted an involuntary dismissal motion. The appellate court reverses, finding the dismissal an unwarranted and excessive sanction where the substitute witness was also a duly-listed corporate representative and prejudice was not demonstrated.
The court held that the exclusion of the substitute witness and the consequent involuntary dismissal were unwarranted and excessive sanctions. The trial court erred by not considering lesser sanctions, failing to analyze the Binger factors, and not demonstrating or properly considering any prejudice to C & C from the substitution of one listed corporate representative for another.
[1] Excluding a proffered witness, even an unlisted one, is a drastic remedy that should be reserved for the most compelling circumstances.
[2] A trial court must consider prejudice to the opposing party and explore lesser sanctions before imposing the drastic remedy of witness exclusion.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The exclusion of a proffered witness on the facts presented here, even an unlisted witness, "is a drastic remedy which should pertain in only the most compelling circumstances."”
Establishes the high bar for excluding a witness and the trial court's failure to meet it.
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Join FLexlaw to unlock all legal intelligenceCastro obtained a $352,000 residential mortgage in 2006 and defaulted in 2009. In 2013, Nationstar acquired the loan and commenced foreclosure after C…
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Nationstar Mortgage appeals an order involuntarily dismissing its residential foreclosure action and an order denying a motion for. rehearing regarding the dismissal. Concluding that the dismissal was an unwarranted and excessive sanction, we reverse.
Appellee Alejandro Castro obtained a $352,000 residential mortgage loan as part of his purchase of a Miami Beach condominium in 2006. He defaulted on the noté and mortgage in 2009. In 2013, following the transfer of the loan and original note and mortgage to-Nationstar, and after the acquisition of the mortgaged condominium by appellee Cookies & Crackers Corp. (“C & C”), Nationstar commenced the underlying circuit court foreclosure action.
In early 2015, the case was set for trial. Three weeks before trial, counsel for C & C took the deposition of Nationstar’s corporate representative. Following the deposition, however, that witness was noticed to appear in another trial in another Florida circuit. A week before the scheduled trial of the present case, Nationstar notified opposing counsel that another previously-listed witness would be assigned to testify as corporate representative, After discussion, the attorneys jointly moved for a continuance of the non-jury trial in order to‘alleviate any prejudice. Their respective clients consented to the joint motion.
On the date scheduled for trial, the trial court denied- tlié joint motion to continue. C & C then moved to exclude Nationstar’s proposed corporate witness on the grounds that the witness who had been deposed was not made available, and the trial court granted the motion. At that point, C & C’s attorney moved for an involuntary dismissal. The trial court granted that motion as well and later denied Nationstar’s motion for rehearing. This appeal followed.
Analysis
Nationstar’s counsel represented to the trial court that its proffered corporate representative would have testified to the same facts, figures, and corporate records as the representative who had been deposed. The court and counsel for C & C did not propose an adjournment to allow a deposition to be taken to confirm that fact.
*71Although C & C’s counsel mentioned Binger without citation (Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981)), the trial court did not address any of the factors detailed in that case. The exclusion of a proffered witness on the facts presented here, even an unlisted witness, “is a drastic remedy which should pertain in only the most compelling circumstances.” Walters v. Keebler Co., 652 So.2d 976, 977 (Fla. 1st DCA 1995) (citing Binger, 401 So.2d 1310). In the present case, the trial court did not consider what prejudice, if any, might be suffered by C & C, nor did it address any lesser steps or sanctions that might have adequately addressed the substitution of one duly-listed corporate representative for another witness. also listed in Nationstar’s pretrial catalogue!
Here, as in a recent appeal involving a similar record, Deutsche Bank National Trust Co. ex rel. LSF MRA Pass-Through Trust v. Perez, 180 So.3d 1186 (Fla.3d DCA 2015), prejudice was neither demonstrated nor properly considered by the trial court. And here, as in- that case, we reverse and vacate the trial court’s order of dismissal and remand the case for further proceedings consistent with this opinion.
Reversed; order of dismissal vacated.
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Citator
Cited By
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The Bank OF NEW York Mellon v. Pearson, 212 So. 3d 1071 (Fla. 3d DCA 2017)
Authorities Cited
- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)
- Walters v. Keebler Co. & Crawford & Co., 652 So. 2d 976 (Fla. 1st DCA 1995)
- Deutsche Bank Nat'l Tr. Co. v. Estrella Perez, 180 So. 3d 1186 (Fla. 3d DCA 2015)