YASSIEL CABRE AND NANCY ASCANIO CABRE,
v.
CARRINGTON MORTGAGE SERVICES, LLC.
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Striking of pleadings and entry of default judgment are improper sanctions absent a finding of deliberate and contumacious disregard of court authority, bad faith, willful disregard, or gross indifference to court orders.
[1] Striking of pleadings as a sanction requires a trial court finding of deliberate and contumacious disregard of court authority, bad faith, willful disregard, or gross ind…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“only a 'deliberate and contumacious disregard of the court's authority will justify [the striking of pleadings], as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness'”
Mercer v. Raine standard for striking pleadings as sanction
Appellants Yassiel and Nancy Cabre answered a mortgage services complaint and responded to discovery in September 2019. Their counsel withdrew in Nove…
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Third District Court of Appeal
State of Florida
Opinion filed September 29, 2021. Not final until disposition of timely filed motion for rehearing.
No. 3D20-0214 Lower Tribunal No. 19-15831
Yassiel Cabre and Nancy Ascanio Cabre, Appellants,
vs.
Carrington Mortgage Services, LLC, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge.
Hernandez Law, P.L., and Andy R. Hernandez, for appellants.
Akerman, LLP, and Nancy M. Wallace (Tallahassee), William P. Heller (Fort Lauderdale), and Eric M. Levine (West Palm Beach), for appellee.
Before LOGUE, GORDO, and BOKOR, JJ.
BOKOR, J.
Appellants, Yassiel Cabre and Nancy Ascanio Cabre, appeal the striking of their pleadings and the entry of default and default final judgment in favor of Appellee, Carrington Mortgage Services, LLC. Based on a review of the record, the Cabres' actions do not rise to the level of “contumacious disregard of the court's authority,” bad faith, willful disregard, or gross indifference necessary to strike pleadings. Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983) (explaining that only a "deliberate and contumacious disregard of the court's authority will justify [the striking of pleadings], as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness”) (citations omitted); see also Ledo v. Seavie Res., LLC, 149 So. 3d 707, 710 (Fla. 3d DCA 2014) (requiring courts to make "a determination and findings of willful or deliberate disregard of a court's authority" before striking pleadings as a sanction).
Here, the Cabres filed their answer and affirmative defenses as well as responses to initial discovery propounded by Carrington. Thereafter, the record reflects that the Cabres' counsel withdrew approximately a month after filing an answer and responding to discovery. The striking of pleadings and entry of default and default final judgment that give rise to this appeal all occurred within an approximately six-week period in which the Cabres were either seeking new counsel or had just obtained new counsel.1
Importantly, much of the activity occurred during the time allowed the Cabres to find new counsel which doesn't reflect a “refusal to participate in this litigation in good faith.” Accordingly, we vacate the order striking the pleadings, and the default and default final judgment entered in favor of Carrington,2 and remand to the trial court for further proceedings on the merits consistent with this opinion.
Reversed and remanded.
final judgment improperly reduced nonliquidated damages to a judgment without a proper hearing.