YASSIEL CABRE AND NANCY ASCANIO CABRE
v.
CARRINGTON MORTGAGE SERVICES, LLC.
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Appellants Yassiel Cabre and Nancy Ascanio Cabre appealed the striking of their pleadings and entry of default judgment in a mortgage services dispute. The court found that the trial court abused its discretion by striking pleadings without establishing the required "contumacious disregard" or willful violation necessary to impose such sanctions.
The court vacated the order striking pleadings and the default and default final judgment, holding that striking pleadings requires a finding of deliberate and contumacious disregard of court authority, bad faith, or willful disregard. The Cabres' conduct during the counsel transition period did not meet this standard, as they timely moved for an extension and promptly retained new counsel.
[1] The striking of pleadings as a sanction for discovery violations requires a finding of deliberate and contumacious disregard of the court's authority, bad faith, willful…
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Join FLexlaw to unlock all legal intelligence“only a 'deliberate and contumacious disregard of the court's authority will justify [the striking of pleadings], as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness'”
Establishing the legal standard for striking pleadings as a sanction, citing Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983)
The Cabres filed an answer and responded to initial discovery in September 2019. Their counsel withdrew in November 2019, and the trial court granted …
The full statement of facts, procedural history, and disposition for this case are member content.
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BOKOR, J.
Appellants, Yassiel Cabre and Nancy Ascanio Cabre, appeal the striking of their pleadings and the entry of default and default final judgment in favor of Appellee, Carrington Mortgage Services, LLC. Based on a review of the record, the Cabres’ actions do not rise to the level of “contumacious disregard of the court’s authority,” bad faith, willful disregard, or gross indifference necessary to strike pleadings. Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983) (explaining that only a “deliberate and contumacious disregard of the court’s authority will justify [the striking of pleadings], as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness”) (citations omitted); see also Ledo v. Seavie Res., LLC, 149 So. 3d 707, 710 (Fla. 3d DCA 2014) (requiring courts to make “a determination and findings of willful or deliberate disregard of a court’s authority” before striking pleadings as a sanction).
Here, the Cabres filed their answer and affirmative defenses as well as responses to initial discovery propounded by Carrington. Thereafter, the record reflects that the Cabres’ counsel withdrew approximately a month after filing an answer and responding to discovery. The striking of pleadings and entry of default and default final judgment that give rise to this appeal all occurred within an approximately six-week period in which the Cabres were either seeking new counsel or had just obtained new counsel.1 Importantly, much of the activity occurred during the time allowed the Cabres to find new counsel which doesn’t reflect a “refusal to participate in this litigation in good faith.” Accordingly, we vacate the order striking the pleadings, and the default and default final judgment entered in favor of Carrington,2 and remand to the trial court for further proceedings on the merits consistent with this opinion.
final judgment improperly reduced nonliquidated damages to a judgment without a proper hearing.
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Citator
Authorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Ledo v. Seavie Res., LLC, 149 So. 3d 707 (Fla. 3d DCA 2014)