Deutsche Bank National Trust Co. Ex Rel. LSF MRA Pass-Through Trust v. Perez
180 So. 3d 1186
Fla. Dist. Ct. App.2015Background
- Deutsche Bank (plaintiff) filed a mortgage foreclosure in 2009; trial was finally set for December 8, 2014 after multiple resets.
- Pretrial order required parties to exchange names/addresses of all non-expert witnesses at least 15 days before trial and warned that failure to strictly comply could result in sanctions.
- Plaintiff’s pretrial lists identified a “Corporate representative of Vericrest Financial, Inc., servicer for Deutsche Bank” but did not give a specific individual’s name; defendant Perez filed no witness list.
- At trial on December 9, 2014, plaintiff announced Scott Logue as its corporate representative; defense objected because Logue’s name had not been disclosed.
- The trial court refused to consider prejudice, struck plaintiff’s only witness, and dismissed the foreclosure action as a sanction for noncompliance.
- The district court reversed, finding the trial court failed to apply the Binger factors and that dismissal (or excluding the witness) was disproportionate given lack of demonstrated prejudice and availability of less severe remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court may exclude an undisclosed witness for failure to name the corporate representative | Bank: omission was not in bad faith; identity uncertainty due to availability; no prejudice shown; allow testimony or grant continuance | Perez: strict compliance required; undisclosed witness should be excluded under pretrial order | Court: Exclusion/dismissal improper without considering Binger factors; must assess prejudice, cure ability, bad faith, and disruption before excluding witness |
| Whether dismissal/involuntary dismissal is appropriate sanction for failing to name the corporate representative | Bank: dismissal is disproportionate; milder remedies (continuance, allow testimony) available | Perez: court order required strict compliance; sanctions appropriate for noncompliance | Court: Dismissal was excessive where prejudice not shown and party’s only witness was stricken; sanction punished plaintiff disproportionately |
Key Cases Cited
- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) (trial court may exclude undisclosed witness only after considering prejudice, cure, bad faith, and case administration)
- Allstate Prop. & Cas. Ins. Co. v. Lewis, 14 So. 3d 1230 (Fla. 1st DCA 2009) (Binger requires prejudice determination before exclusion)
- Lugo v. Fla. E. Coast Ry. Co., 487 So. 2d 321 (Fla. 3d DCA 1985) (exclusion for failure to list expert was indefensible where Binger factors not considered)
- Casa de Alabanza v. Bus Serv., Inc., 669 So. 2d 338 (Fla. 3d DCA 1996) (error to prohibit corporate representative where party had indicated a representative would testify)
- Pascual v. Dozier, 771 So. 2d 552 (Fla. 3d DCA 2000) (trial courts should exercise caution before excluding a party’s only or primary witness)
- Progressive Consumers Ins. Co. v. DECO Natural Stone, Inc., 827 So. 2d 336 (Fla. 3d DCA 2002) (striking plaintiff’s primary witness for nonprejudicial failure to timely list was abuse of discretion)