         Third District Court of Appeal
                                 State of Florida

                              Opinion filed May 4, 2016.
           Not final until disposition of timely filed motion for rehearing.

                                 ________________

                                 No. 3D15-1855
                           Lower Tribunal No. 13-33700
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                          Nationstar Mortgage, LLC,
                                      Appellant,

                                          vs.

                            Alejandro Castro, et al.,
                                      Appellees.



    An Appeal from the Circuit Court for Miami-Dade County, William L.
Thomas, Judge, and Marvin Gillman, Senior Judge.

       Akerman LLP and Nancy M. Wallace (Tallahassee) and William P. Heller
(Fort Lauderdale) and Eric M. Levine (West Palm Beach), for appellant.

        Graham Legal and Ashley Jaye Arends, for appellee, Cookies & Crackers
Corp.


Before SUAREZ, C.J., and SHEPHERD and SALTER, JJ.

        SALTER, J.
      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

note 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 the joint motion to

continue. C&C then moved to exclude Nationstar’s proposed corporate witness on



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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.

      Although 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.




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      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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