DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
HSBC BANK MORTGAGE CORPORATION (USA),
DAVID T. LEES; VICTORIA WOODS HOMEOWNERS’ ASSOCIATION,
INC.; WYNDAM PARK HOMEOWNERS ASSOCIATION, INC.; RAINA M.
RUELLE; and Unknown Tenant(s) In Possession Of The Subject Property,
[August 31, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard L. Oftedal, Judge, and Susan R. Lubitz, Senior
Judge; L.T. Case No. 502010CA027739XXXXMB.
Nicholas S. Agnello and John Chiles of Burr & Forman, LLP, Fort
Lauderdale, for appellant.
Christine M. Deis, Peter Ticktin, Joshua Bleil, Kendrick Almaguer and
Jon Hodges of The Ticktin Law Group, P.A., Deerfield Beach, for appellee
HSBC Bank Mortgage Corporation (USA) (“the bank”) appeals from:
(1) Judge Oftedal’s order granting defendant David T. Lees’s (“the
homeowner”) motion in limine to strike the bank’s trial witness; and
(2) Judge Lubitz’s subsequent order involuntarily dismissing the bank’s
action without prejudice based on Judge Oftedal’s order. Because the
bank failed to comply with Judge Oftedal’s pre-trial order, we affirm.
This appeal arises from a mortgage foreclosure action commenced in
2010. In a pre-trial order entered on February 13, 2015, the case was set
for trial almost eight weeks later on April 7, 2015. The pre-trial order
required the parties to disclose the specific names of all trial witnesses
within ten days of the date of the pre-trial order (by February 23, 2015)
and complete discovery no later than ten days before trial (by March 27,
2015). Although not necessary because it is axiomatic that parties to an
action must comply with court directives, the pre-trial order warned that
noncompliance with the order may result in the striking of witnesses.
Despite the clear and unequivocal directives of the pre-trial order to file
witness lists within ten days (by February 23, 2015), the bank did not file
its witness list until one month later — March 13, 2015 — listing
“[r]epresentative of Plaintiff,” “[o]ther representatives on behalf of Plaintiff,”
and thirteen named witnesses, one of whom was Peter Killinger.
On Thursday, April 2, 2015, (just five calendar days, including a two-
day weekend, before trial on Tuesday, April 7, 2015), the bank filed its
amended witness list, which named only Killinger and eliminated all other
specifically named witnesses on the previous list.
On Monday, April 6, 2015 (the day before trial), the homeowner filed a
motion in limine seeking to strike the Bank’s witness, or in the alternative,
to continue the trial. The homeowner argued that the Bank failed to
comply with the pre-trial order twice (both with its initial and amended
witness list), and that the parties could not reach an agreement to
schedule Killinger’s deposition in the few days available before trial. The
homeowner further argued that he was prejudiced by the bank’s failure to
specifically name its trial witness until five calendar days before trial and
provide him with a reasonable opportunity to depose its trial witness. The
homeowner’s motion included an analysis of the factors promulgated in
Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981).
On the day of trial, April 7, 2015, Judge Oftedal considered the
homeowner’s motion in limine seeking to strike the bank’s witness, or in
the alternative, to continue the trial. The homeowner argued that the bank
offered only one date for deposition, on which date no attorneys at the
homeowner’s firm were available. The bank responded by arguing that its
original witness list was provided twenty days1 or more prior to trial, and
argued that the trial court should analyze the issue pursuant to Binger.
1 The bank asserts that a twenty-day period is not prejudicial in that Florida
Rule of Civil Procedure 1.440(c) requires “only” 30 days’ notice of a trial that is
scheduled by a trial judge.
Judge Oftedal clearly took issue with the fact that the bank initially
filed such an extensive witness list: “Well, that’s really no list at all. I
mean, that’s  witnesses. The pretrial order requires you name the
witness, not just list every witness in the Plaintiff’s army. The bank
responded, “We didn’t know who would be testifying. But had the
deposition been coordinated we would have provided opposing counsel the
name of a witness who was going to be testifying.”
Judge Oftedal entered an order granting the homeowner’s motion in
limine and striking the bank’s witness. The trial division judge, Judge
Lubitz, then involuntarily dismissed the case without prejudice based
upon Judge Oftedal’s order.
On appeal, the bank first argues that Judge Oftedal reversibly erred in
failing to consider the Binger factors. It further contends that application
of the Binger factors did not support striking its witness.
Where a party has failed to disclose the name of a witness in accordance
with the trial court order, the testimony of that witness may be excluded
at the trial court’s discretion. Binger, 401 So. 2d at 1313. “[D]iscretion is
abused only where no reasonable man would take the view adopted by the
trial court.” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980)
In Binger, the Florida Supreme Court set forth a test for trial courts to
apply in determining whether undisclosed witnesses should be excluded
from trial. Binger, 401 So. 2d at 1313-14. A trial court’s discretion in
striking witnesses “should be guided largely by a determination as to
whether use of the undisclosed witness will prejudice the objecting party.”
Id. at 1314. Other factors to be considered include:
(i) the objecting party’s ability to cure the prejudice or,
similarly, his independent knowledge of the existence of the
witness; (ii) the calling party’s possible intentional, or bad
faith, noncompliance with the pretrial order; and (iii) the
possible disruption of the orderly and efficient trial of the case
(or other cases).
The approach prescribed by Binger “leaves ultimate control over
witness disclosure problems to the broad discretion of the trial judge and
focuses on prejudice in the preparation and trial of a lawsuit.” Id. at 1312.
However, “a trial court should exercise caution when the witness sought
to be excluded is a party’s only witness or one of the party’s most important
witnesses because if the witness is stricken, that party will be left unable
to present evidence to support his or her theory of the case.” Pascual v.
Dozier, 771 So. 2d 552, 554 (Fla. 3d DCA 2000).
While we agree with the bank that the application of the Binger factors
is a part of the trial court’s exercise of its discretion, Allstate Property &
Casualty Insurance Co. v. Lewis, 14 So. 3d 1230, 1234 (Fla. 1st DCA 2009),
it appears that the trial court indeed considered the necessary factors.
Although Judge Oftedal did not explicitly reference Binger before
striking the witness, the homeowner outlined an analysis of the Binger
factors in its motion in limine. Additionally, the homeowner argued both
in its motion in limine and at the hearing on its motion on the day of trial
that it was prejudiced by the bank’s failure to properly disclose its witness,
and asserted that prejudice is the first principle enunciated in Binger. The
record additionally reveals that Judge Oftedal considered the bank’s
potential willful noncompliance with the pre-trial order, another Binger
factor, when he explained, “The pre-trial order requires you name the
witness, not just list every witness in the plaintiff’s army.” As such, the
record does not support a conclusion that Judge Oftedal failed to consider
the Binger factors.
We also disagree with the bank’s contention that application of the
Binger factors did not support striking its witness — particularly, the bank
argues, when considering prejudice to the opposing party — in this case,
the homeowner. “Prejudice in this sense refers to the surprise in fact of
the objecting party, and it is not dependent on the adverse nature of the
testimony.” Binger, 401 So. 2d at 1314.
This court recently addressed the element of “surprise in fact” in Reive
v. Deutsche Bank National Trust Co., 40 Fla. L. Weekly D725 (Fla. 4th DCA
Mar. 25, 2015), a mortgage foreclosure action. There, a bank moved to
continue trial after the subject loan was transferred to a new servicer,
which would in turn need time to get acquainted with the loans and
documents before trial, but the motion was denied. Id. Four days before
trial, the bank provided notice of several new witnesses and documents in
violation of the pre-trial order, and Judge Oftedal admitted the witnesses
and documents over the defendant’s objection. Id. This court reversed,
[T]he court’s denial of the continuance together with the
admission of witnesses and documents not timely disclosed to
the defendant constituted “surprise in fact” in this case and
violated Binger v. King Pest Control, 401 So. 2d 1310, 1313-14
(Fla. 1981). The failure to give adequate notice of evidence
and witnesses constitutes a due process violation. S.Z. v.
Dep’t of Children & Family Servs., 873 So. 2d 1277, 1277 (Fla.
3d DCA 2004) (delivery of discovery packet the Friday before
a Monday trial constituted “trial by ambush” and violated the
defendant’s due process rights).
Similarly, with regard to the instant facts, the bank’s failure to disclose
its witnesses in a manner that was in compliance with the pre-trial order
constituted surprise in fact, and thus, under the facts of this case,
prejudiced the homeowner. The bank filed its amended witness list a mere
five calendar days (including a two-day weekend) before trial, and the bank
offered only one date for deposition, on which date no attorneys at the
homeowner’s firm were available, thus making it impossible for the
homeowner to cure the prejudice.
While a trial judge is constrained by the standards set forth in Binger,
the discretion afforded to trial courts when faced with this type of non-
compliance is broad and will only be disturbed upon a disregard for the
fundamental principles surrounding a trial court’s decision. The bank had
five years to prepare for trial, yet failed to supply a true and accurate
witness list until five calendar days before trial.
The dissent’s argument that the bank disclosed its witness list well
before trial, albeit late, omits the big picture. As the trial court observed,
the bank’s initial witness list, filed twenty days late and only three weeks
before trial, identified thirteen named witnesses and other unnamed
witnesses. The dissent’s argument would require the homeowner, in the
three weeks remaining before trial, either to have engaged in a fishing
expedition by deposing all thirteen named witnesses, or to have played a
guessing game to determine which of the thirteen named witnesses the
Bank actually intended to call at trial.
The dissent’s suggestion that the homeowner could have taken the
witness’s deposition in the few days remaining before trial is misplaced
and the record suggests otherwise. The bank filed its amended witness
list a mere five calendar days (including a two-day weekend) before trial,
and the bank offered only one date for a deposition, on which date no
attorneys at the homeowner’s firm were available.
While the dissent’s suggestion that Judge Oftedal could have granted
the homeowner’s alternative motion for a continuance is true, making that
suggestion coupled with the dissent’s de facto requirement that Judge
Oftedal exercise that option unacceptably subjugates his efforts at docket
control to the bank’s inexplicable non-compliance and would have the
affect of removing any force from Judge Oftedal’s pre-trial order. Just
because as the dissent characterizes it, this matter “after all . . . was a
mortgage foreclosure”, a trial court’s pre-trial order does not carry any less
weight. To suggest otherwise would cast a pall over a trial court’s inherent
duty of steadfast case management and demean the sanctity of a trial
court’s pre-trial order that sets forth pre-trial procedures which, unless
the trial court orders otherwise, is not optional.
Yes, as the dissent muses, Judge Oftedal could have allowed the
homeowner to take the witness’s deposition just before trial. But then, that
would have placed the burden to cure the prejudice upon the homeowner
where the burden did not belong. This unfair advantage was caused by
the bank’s intransigence as to Judge Oftedal’s pre-trial order. There was
nothing unclear—or optional—about Judge Oftedal’s pre-trial order.
In sum, contrary to the dissent’s argument, there were not “many
options,” available to the trial judge in his duty to cure the prejudice
dumped upon the homeowner by the bank. Short of striking the bank’s
sole witness, the two judges in the trenches in this case, Judges Oftedal
and Lubitz, had limited case management tools at their disposal. Judge
Oftedal, exercising his broad discretion, chose what he considered to be
most appropriate option—striking the bank’s witness—leading Judge
Lubitz to dismiss the bank’s underlying foreclosure action without
In this type of “without prejudice posture”, a bank generally may refile
its case. See generally Evergrene Partners, Inc. v. Citibank, N.A., 143 So.
3d 954, 955 (Fla. 4th DCA 2014) (“While a foreclosure action with an
acceleration of the debt may bar a subsequent foreclosure action based on
the same event of default, it does not bar subsequent actions and
acceleration based upon different events of default.”); see also Star
Funding Solutions, LLC v. Krondes, 101 So. 3d 403, 403 (Fla. 4th DCA
2012) (“A new default, based on a different act or date of default not alleged
in the dismissed action, creates a new cause of action.”).
Consequently, the trial court did not abuse its broad discretion in
striking the Bank’s witness and involuntarily dismissing the bank’s action
without prejudice. We find no legitimate reasons to second guess the trial
judges involved in dealing with this non-compliance of an unequivocal
judicial order. Thus, we affirm.
GERBER, J., concurs in result only with opinion.
WARNER, J., dissents with opinion.
GERBER, J., concurring in result only.
I think that both Chief Judge Ciklin and Judge Warner raise excellent
points in their respective opinions. However, I base my decision on the
standard of review alone. Because I cannot say that “no reasonable [judge]
would take the view adopted by the trial court,” Canakaris v. Canakaris,
382 So. 2d 1197, 1203 (Fla. 1980) (citation omitted), I concur with Chief
Judge Ciklin that the trial court did not abuse its broad discretion in
striking the Bank’s witness and involuntarily dismissing the bank’s action
WARNER, J., dissenting.
I dissent. The bank did disclose this witness in its witness list well
before trial, albeit the entire pretrial list was filed late. The homeowner
could have taken the witness’s deposition. Moreover, the homeowner
sought a continuance as an alternative to striking the witness. The court
also could have allowed the homeowner to take the deposition of the
witness immediately before the trial started. There were thus many
options, short of striking the bank’s sole witness, which would have
eliminated prejudice to the homeowner. After all, this was a mortgage
foreclosure. The bank’s witness was there to offer proof of the mortgage
documents and the amount owed. None of this would come as a surprise.
I think the court abused its discretion in striking the bank’s only witness.
* * *
Not final until disposition of timely filed motion for rehearing.