Carol Reive v. Deutsche Bank National Trust Company , 190 So. 3d 93 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CAROL REIVE,
Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of the
RESIDENTIAL ASSET SECURITIZATION TRUST 2005-A 16,
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-P
UNDER THE POOLING AND SERVICING AGREEMENT DATED
DECEMBER 1, 2005,
Appellee.
No. 4D13-4408
[March 25, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Diana Lewis and Richard L. Oftedal, Judges; L.T. Case No.
502010CA005950.
June M. Clarkson of Edwards & Clarkson, P.A., Fort Lauderdale, for
appellant.
Khari E. Taustin, Jeremy W. Harris, Masimba M. Mutamba and Angela
Barbosa Wilborn of Morris, Laing, Evans, Brock & Kennedy, Chartered,
West Palm Beach, for appellee.
PER CURIAM.
Ten days prior to trial on a mortgage foreclosure which had been
pending for three years, the plaintiff bank filed an unopposed motion to
continue the trial because the loan was part of a “service transfer,” and a
new servicer would have to get acquainted with the loan and documents
prior to trial. The trial judge hearing the motion denied it. Four days prior
to trial, the bank provided notice of several new witnesses and documents,
to which the defendant objected. Then, over the objection of the defendant,
the judge hearing the trial allowed the bank to use witnesses and
documents in its case which were not listed in the pretrial stipulation and
constituted a violation of a pretrial discovery order.
We conclude that the 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). As the trial court abused its discretion in denying the
motion to continue the trial, and then in permitting the introduction of
extremely late-listed witnesses and documents to the prejudice of the
defendant, we reverse and remand for a new trial.
WARNER, MAY and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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