In Deutsche Bank Nat’l Trust Co. v. Estrella Perez, et al., No. 3D15-58, 2015 WL 8347002 (Fla. 3d DCA Dec. 9, 2015), Florida’s Third District Court of Appeal held that the trial court erred in dismissing a foreclosure case on the ground that Plaintiff failed to specifically name its corporate representative that would testify at trial. Burr & Forman LLP attorneys Brendan A. Sweeney, Esq. and Douglas J. Stamm, Esq. represented Plaintiff/Appellant Deutsche Bank National Trust Company on behalf of LSF MRA Pass-Through Trust (“Deutsche Bank”) at the trial and appellate level.

On October 29, 2009, Deutsche Bank commenced an action seeking to foreclose on its interest in real property located in Miami-Dade County. The action was called up to trial on several occasions and was last set for trial during the week of December 8, 2014. The order setting the trial provided that no later than fifteen days before the date of the scheduled trial the parties were to “furnish opposing counsel with a written list containing the individual proper names and addresses of all non-expert witnesses . . . intended to be called at trial.” The order also provided that failure to “strictly comply” might result in sanctions, including limiting proof or witnesses, and that only those witnesses listed would be allowed to testify. On November 18 and December 4, 2014, Deutsche Bank filed its witness and exhibit lists and listed “Corporate representative of Vericrest Financial, Inc. . . . servicer for Deutsche Bank . . .” as a witness.

At the trial on December 9, 2014, Deutsche Bank announced that it was calling Scott Logue to testify as its corporate representative. Counsel for Defendant Estrella Perez (“Perez”) then objected because Mr. Logue was not specifically named in Deutsche Bank’s witness and exhibit lists. In response, the bank explained that a specific name had not been provided because it did not know who would be available to testify at trial and that this failure was not for any improper purpose or harmful. The bank further suggested that because no prejudice had been demonstrated it should either be permitted to proceed or the matter should be continued to mitigate any potential harm. The trail court rejected these arguments, stating that it was unconcerned about prejudice to Perez and was punishing the bank for failing to strictly comply with its pre-trial order. The trial court struck Deutsche Bank’s sole witness and granted Perez’s motion for involuntary dismissal.

Deutsche Bank timely filed its notice of appeal wherein the issues before the Third District Court of Appeal were whether the trial court improperly struck Plaintiff’s sole trial witness and whether the granting of Perez’s ore tenus motion for involuntary dismissal was appropriate. The Third District Court of Appeal held that the trial court incorrectly refused to even consider whether Perez would be prejudiced by allowing the bank’s witness to testify at trial. See Allstate Prop & Cas. Ins. Co. v. Lewis, 14 So. 3d 1230, 1234 (Fla. 1st DCA 2009) (“The supreme court’s opinion in Binger is clear that testimony should be excluded only after the trial court determines it is prejudicial to the opposing party.”). Additionally, the court ruled that the record below failed to demonstrate any prejudice to Perez because she was put on notice of the trial witness and there was no indication that Perez sought to identify Deutsche Bank’s witness or take their deposition prior to the trial.

Further, the court relied on its prior decisions and held that the striking of Deutsche Bank’s sole witness was the legal equivalent of the death penalty and was well out of proportion to the magnitude of the alleged offense.

Counsel for both Plaintiffs and Defendants must to be aware of the factors that need to be addressed and carefully considered by the trial court when there is a late witness disclosure on the eve of trial. The sanction of striking a party’s sole witness is very severe and will not be upheld if there is any question in the record below.

To read the Perez opinion, click here.