No.

2D16-3887
_______________

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT, LAKELAND, FL
_______________

RONALD P. GILLIS

Appellant,

v.

DEUTSCHE BANK TRUST COMPANY AMERICAS

As Trustee for RESIDENTIAL ACCREDIT LOANS, INC.,
Mortgage Asset-Backed Pass Through Certificates, Series 2006-QS8

Appellee.
_______________

On Appeal from the Circuit Court in and for Charlotte, County

Lower Case No. 2008-CA-252
_______________

REPLY BRIEF OF APPELLANT

_______________

MARK A. CULLEN, ESQ.

Fla. Bar No. 325082
The Cullen Law Firm, P.A.
500 S. Australian Avenue,
Suite 543
West Palm Beach, FL 33401
Phone: 561.640.9191
Fax: 561.214.4021
E-mail: mailbox@cullenlawfirm.net
 TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i

TABLE OF CITATIONS ......................................................................................... ii

REBUTTAL TO PLAINTIFFS STATEMENT OF THE FACTS ..........................1

REBUTTAL ARGUMENT .......................................................................................2

I. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR

INVOLUNTARY DISMISSAL AFTER THE TRIAL COURT
STRUCK THE TESTIMONY OF PLAINTIFFS WITNESS. ......................2

A. Plaintiff Was Required to Prove Possession of the Note and

Standing at the Time of Trial. .................................................................... 2

B. A Copy of a Note is Not Self-Authenticating and a Self-

Authenticating Original Note Needs To Be Admitted Into Evidence
Through a Qualified Witness. .................................................................... 4

II. THE TRIAL COURT ERRED IN ENTERING THE DEFAULT

FINAL JUDGMENT WHERE THE FACTS OF THE COMPLAINT
DO NOT PROVIDE A SUFFICIENT BASIS FOR THE JUDGMENT
ENTERED. ......................................................................................................6

III. THE TRIAL COURT ABUSED ITS DISCRETION BY STRIKING

DEFENDANTS PLEADINGS AND ENTERING JUDICIAL
DEFAULT AS A DISCOVERY SANCTION WITHOUT MAKING
EXPRESS FINDINGS OF FACT. ................................................................10

CONCLUSION ........................................................................................................15

CERTIFICATE OF SERVICE ................................................................................16

CERTIFICATE OF COMPLIANCE .......................................................................16

i
 TABLE OF CITATIONS

Cases
BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques,
28 So. 3d 936 (Fla. 2d DCA 2010) .......................................................................9

Becerra v. Equity Imports, Inc., 551 So. 2d 486 (Fla. 3d DCA 1989) ......................6

Bryson v. Branch Banking & Tr. Co., 75 So. 3d 783 (Fla. 2d DCA 2011) ..........5, 6

Calvo v. U.S. Bank Nat. Assn, 181 So. 3d 562 (Fla. 4th DCA 2015). ........... 2, 3, 8

Correa v. U.S. Bank, N.A., 118 So. 3d 952 (Fla. 2nd DCA 2013)............................4

Flagg v. Judd, 198 So. 3d 665 (Fla. 2d DCA 2015) ................................................13

Friedle v. Bank of New York Mellon,

226 So. 3d 976 (Fla. 4th DCA Sept. 27, 2017).....................................................4

Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004) ...................................... 10, 11, 13, 14

Heller v. Bank of America, N.A.,

209 So. 3d 641 (Fla. 2nd DCA 2017) ...............................................................2, 5

Hurley v. Werly, 203 So. 2d 530 (Fla. 2d DCA 1967) ............................................12

Jelic v. BAC Home Loans Servicing, L.P.,

178 So. 3d 523 (Fla. 4th DCA 2015) ....................................................................3

Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993) ........................................11

Ledo v. Seavie Res., LLC, 149 So. 3d 707 (Fla. 3d DCA 2014) ...........................14

Lybass v. Town of Fort Myers, 56 Fla. 817, 47 So. 346 (1908) ...............................6

Marine Contractors, Inc., v. Armco, Inc.,

452 So. 2d 77 (Fla. 2d DCA 1984) .......................................................................9
ii
Masters v. Rodgers Dev. Group, 283 S.C. 251, 321 S.E.2d 194 (1984) ...................6

Rosa v. Deutsche Bank Nat. Tr. Co., 191 So. 3d 987 (Fla. 2d DCA 2016) ..............3

Russell v. Aurora Loan Services, LLC,

163 So. 3d 639 (Fla. 2d DCA 2015) .....................................................................2

Singh v. Kumar,
4D17-241, 2017 WL 4535048 (Fla. 4th DCA Oct. 11, 2017)............................10

State Dept of Health & Rehabilitative Servs. ex rel. Williams v. Thibodeaux,

547 So. 2d 1243 (Fla. 2d DCA 1989). ..................................................................2

Tobin v. Tobin, 117 So. 3d 893 (Fla. 4th DCA 2013) .............................................12

Venture Holdings & Acquisitions Group, LLC v. A.I.M. Funding Group, LLC,
75 So. 3d 773 (Fla. 4th DCA 2011) ..................................................................2, 8

Winchel v. PennyMac Corp., 222 So. 3d 639 (Fla. 2d DCA 2017) ..........................7

Rules
Fla. R. Civ. P. 1.280 ................................................................................................12

Fla. R. Civ. P. 1.530(e) ..............................................................................................7

Treatises
Charles W. Ehrhardt, Florida Evidence 902.1 (2017 ed.) ......................................4

iii
 REBUTTAL TO PLAINTIFFS STATEMENT OF THE FACTS

The record is devoid of any fact-finding by the court that Mr. Gilliss

(Gillis) filings were frivolous or used for delay. Gillis based his tenacious defense

on facts asserted by the servicer that the wrong Plaintiff was attempting to foreclose

on the home. (R. at 1453-1481). Plaintiffs Attorney, David Miller, knew of this

scheme. In June 2012, when the servicer, Wells Fargo, advised Miller that Miller

was seeking a judgment affidavit in the name of the wrong Plaintiff, Miller

responded by stating, [P]lease execute the affidavit as is, and we will assign the

bid sale to the appropriate entity. The servicer attached the following email

exchange to its Affidavit of Amounts Due and Owing (R. at 1463):

Rather than lie down and allow the scandalous injustice of foreclosure by an

incorrect Plaintiff, Gillis fought heartily to defend his homestead.

1
 REBUTTAL ARGUMENT

I. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR

INVOLUNTARY DISMISSAL AFTER THE TRIAL COURT STRUCK
THE TESTIMONY OF PLAINTIFFS WITNESS. (Appellant addressed
this argument in its Section III.)
The court had one alternative after it struck all of the Plaintiffs trial evidence

involuntary dismissal. A motion for involuntary dismissal can only be denied

when a court finds that a plaintiff presented competent substantial evidence to

establish a prima facie case. State Dept of Health & Rehabilitative Servs. ex rel.

Williams v. Thibodeaux, 547 So. 2d 1243, 1244 (Fla. 2d DCA 1989). In a

foreclosure case, the plaintiff must enter the original note into evidence and prove

that the indorsements were on the note prior to the filing of the complaint. See Heller

v. Bank of America, N.A., 209 So. 3d 641, 644-45 (Fla. 2nd DCA 2017); Calvo v.

U.S. Bank Nat. Assn, 181 So. 3d 562, 564 (Fla. 4th DCA 2015).

A. Plaintiff Was Required to Prove Possession of the Note and

Standing at the Time of Trial.
Gillis default does not relieve Plaintiff of the obligation to prove possession

of the note and standing at the time of trial. See Russell v. Aurora Loan Services,

LLC, 163 So. 3d 639, 642 (Fla. 2d DCA 2015) A plaintiff alleging standing as a

holder must prove it is a holder of the note and mortgage both as of the time of trial

and also that the (original) plaintiff had standing as of the time the foreclosure

complaint was filed. See also Venture Holdings & Acquisitions Group, LLC v.

2
A.I.M. Funding Group, LLC, 75 So. 3d 773, 776 (Fla. 4th DCA 2011) (Even a party

in default does not admit that the plaintiff in a foreclosure action possesses the

original promissory note.)

Plaintiff did not prove possession of the note or standing at the time of trial.

All of the witness testimony was struck. (R. at 65). Plaintiff wrongly argues because

Defendant was in default, [S]tanding at inception could not be challenged, and as a

result, no such evidence was required at trial, including evidence establishing when

the indorsements were placed on the Note. (Answer Br. at 28). Not so. A default

does not abolish evidentiary requirements. A plaintiff alleging standing as a holder

must prove not only physical possession of the original note but also, if the plaintiff

is not the named payee, possession of the original note endorsed in favor of the

plaintiff Rosa v. Deutsche Bank Nat. Tr. Co., 191 So. 3d 987, 988 (Fla. 2d DCA

2016) (internal citations omitted).

Plaintiff fails to distinguish the difference between possession of the note,

standing at inception, and standing at the time of trial. Since the Note was not

attached to the Complaint (R. at 1-23), Gillis did not admit the Plaintiff possessed

the Note. Plaintiff was required to prove this fact. Plaintiff was also required to

submit competent substantial evidence that the two undated indorsements predated

the filing of the Complaint. See Calvo, 181 So. 3d at 564 citing Jelic v. BAC Home

Loans Servicing, L.P., 178 So. 3d 523, 524 (Fla. 4th DCA 2015) (We have said
3
before, and apparently need say again: if an indorsement is undated and appears for

the first time after the complaint is filed, some evidence must be introduced that will

support a finding that the indorsement was made prior to the complaints filing.)

Plaintiff cannot evade these fundamental evidentiary requirements. Because

the court struck the witness testimony, Plaintiff failed its burden of proof, and the

only option was involuntary dismissal. See Correa v. U.S. Bank, N.A., 118 So. 3d

952, 956 (Fla. 2nd DCA 2013) ([A]ppellate courts do not generally provide parties

with an opportunity to retry their case upon a failure of proof.) (citation omitted).

B. A Copy of a Note is Not Self-Authenticating and a Self-

Authenticating Original Note Needs To Be Admitted Into
Evidence Through a Qualified Witness.
Plaintiff confuses the distinction between a self-authenticating document and

admission of a self-authenticating document into evidence. There is a difference

between authentication and admissibility. Documents must be authenticated before

they are admissible evidence . . . Even after a document is authenticated, it will not

be admitted if another exclusionary rule is applicable. For example, when a

document is hearsay, it is inadmissible even if it has been properly authenticated.

Friedle v. Bank of New York Mellon, 226 So. 3d 976, 978 (Fla. 4th DCA Sept. 27,

2017) citing Charles W. Ehrhardt, Florida Evidence 902.1 (2017 ed.)

A copy of a note is not self-authenticating. Self-authentication is a concept

that, due to a documents very nature of being notarized or certified in some fashion,

4
eliminates hearsay and other extrinsic objections to admissibility. However, a

document bereft of genuineness, such as a purported copy, cannot be said to be self-

authenticating because extrinsic evidence to establish its truthfulness is still

required. Bryson v. Branch Banking & Tr. Co., 75 So. 3d 783, 786 (Fla. 2d DCA

2011).

An original note must be entered through sworn witness testimony. Unsworn

testimony from plaintiffs counsel does not suffice. Heller, 209 So. 3d at 644-45. In

Heller, the trial court admitted a copy of note after plaintiffs counsel alleged the

original was in the court file. The appellate court held that a copy of the note was

admitted over objection in violation of section 90.953(1). Id. at 645. Further, the

court reasoned that [t]he Bank, as the proponent of the evidence, failed to carry its

burden of proof because the [t]rial court had before it only the copy of the note

and counsels unsworn statement as to the filing of the purported original note. Id.

(internal citations omitted.)

In this case, Plaintiff offered a copy of the Note as evidence (Tr. at 42:2-24).

Plaintiffs counsel proffered an unsworn statement that the original Note was in the

court file. (Tr. at 42:18-24). Gilliss counsel made a contemporaneous best evidence

objection. (Tr. at 42:25-43:2). Despite these infirmities, and the overwhelming case

law to the contrary, the court ruled, The original and the mortgage, as they appear

in the Court file, will be in evidence. I will also allow this copy to be introduced.
5
(Tr. at 43:3-6). This ruling flies in the face of the established evidentiary

requirements.

To make matters worse, the court struck all of predicate testimony that the

copy of the Note was a business record (Tr. at 65:15-21) and found that the witness

was not qualified to testify or act on Plaintiffs behalf. (Tr. at 65:15-21). Thus, per

the holding in Bryson, Plaintiff completely failed to offer any extrinsic evidence to

establish the Note copys truthfulness. The argument that the Note was self-

authenticating and good evidence is unavailing.

II. THE TRIAL COURT ERRED IN ENTERING THE DEFAULT FINAL

JUDGMENT WHERE THE FACTS OF THE COMPLAINT DO NOT
PROVIDE A SUFFICIENT BASIS FOR THE JUDGMENT ENTERED.
A default judgment does not preclude a defendant from challenging the

sufficiency of the complaint as a basis for the judgment. Becerra v. Equity Imports,

Inc., 551 So. 2d 486, 488 (Fla. 3d DCA 1989) citing Masters v. Rodgers Dev. Group,

283 S.C. 251, 321 S.E.2d 194 (1984). It has been the law of this State for over 100

years that a defaulted defendant is not deprived of the right to challenge, by appeal,

the material correctness of a proceeding. Lybass v. Town of Fort Myers, 56 Fla.

817, 47 So. 346 (1908). The proceedings after decree pro confesso are ex parte,

and the defendant in default is not entitled as of right to present a defense, but is not

deprived of the right to question the legality and material correctness of the

proceedings. Id. at 348-49.

6
 Here, Gillis challenges the material correctness of the proceedings. The trial

court entered judgment after striking all testimony at the non-jury trial and based the

judgment on the insufficient Complaint allegations and the inadmissible Note. In a

non-jury case, sufficiency of the evidence may be raised for the first time on appeal.

Fla. R. Civ. P. 1.530(e); Winchel v. PennyMac Corp., 222 So. 3d 639, 644 (Fla. 2d

DCA 2017) ([W]hen there has been a nonjury trial and the appellate issue is the

sufficiency of the evidence to support the judgment, the failure to object based on

the insufficiency of the evidence will not bar raising that issue on appeal.)

Gillis cited ten reasons why the allegations in the Complaint were insufficient

to support the judgment. Plaintiff did not directly respond to some of Gilliss

arguments and instead raised alternative reasons why it believed the Complaint was

sufficient. Defendant rebuts Plaintiffs responses below:

First. Plaintiff wrongly asserts, [T]he Trustee pled two inconsistent

theories of recovery. (Answer Br. at 20). Re-establishment of the note is not an

alternate theory of recovery; it is a remedy that a party seeks when it has lost a

document. In Count II, Plaintiff only sought to re-establish the Note; it did not seek

to enforce the lost note. (R. at 3, 15 and Wherefore clause). The re-establishment

of the lost Note was necessary in order for Plaintiff to enforce the Note through

Count I. The trial court must read the two Counts in conjunction since the voluntary

dismissal of Count II was a nullity. Read in conjunction, the allegations in Count I

7
and Count II present the court with a physical impossibility from which it was

required to make a forced inference. Plaintiff cannot be a holder (Count I) of a lost

note (Count II). (R. at 2, 3; 4, 22).

Second and Third. Florida law may not have required attachment of the note

to a complaint, but it undoubtedly requires the introduction of evidence that the two

undated special indorsements were placed on the Note prior to filing the Complaint.

See Calvo, supra.

Fourth. Plaintiff has not countered the controlling law that its voluntary

dismissal of Count II was a nullity. See Eighth point below. As described in the

First point above, mere re-establishment of a note is not an alternate method of

recovery; it is an essential count when a plaintiff is attempting to foreclose, and a

note is lost. The trial court was thus confronted with the facially inconsistent and

irreconcilable or statement in paragraph 22. The Complaint alleges, Plaintiff was

in possession of the Mortgage Note and entitled to enforce it when loss of possession

occurred or Plaintiff has been assigned the right to enforce the Mortgage Note. (R.

at 4, 22). The word or is a disjunctive particle used to express an alternative or

to give a choice among two or more things. Blacks Law Dictionary, (9th Ed.

2009).

Fifth. By his default, Gillis did not admit that Plaintiff was in possession of

the Note. Venture Holdings, supra. Even if the Mortgage followed the Note, the
8
Note had two undated special endorsements payable to two different entities. (R. at

148-149). There was no way for the trial court to determine how or when the lender

listed on the Mortgage, Wachovia Mortgage Corporation, (R. at 5) ceded its rights

to any of the three Plaintiffs in this case.

Sixth, Seventh. Since Gillis was in default, it was not he who had to be

informed of the nature of the cause of the action. The court must be able to determine

who owes what to whom. The inartful pleading leaves this unsaid. The Mortgage

showing Wachovia Mortgage Corporation as the lender controls any contradicting

allegation in the Complaint. (R. at 5). See BAC Funding Consortium, Inc.

ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010).

Eighth. It is well settled that only an entire action may be voluntarily

dismissed under Fla. R. Civ. P. 1.420(a)(1); there can be no partial dismissal, no

dismissal of less than all the causes of action. Marine Contractors, Inc. v. Armco,

Inc., 452 So. 2d 77, 80 (Fla. 2d DCA 1984). Plaintiff does not refute the law as it

applied in 2009. Instead, Plaintiff inexplicably argues, The Florida Rules of Civil

Procedure were amended, effective January 1, 2011, to allow for voluntary dismissal

of less than all counts, which is precisely what the Trustee did here. (Answer Br.

at 23, n. 6). The 2011 rule does not govern the 2009 voluntary dismissal.

Ninth. The change of Plaintiffs identity during the course of the litigation

was not technical in nature. At the very least, the second substitution was a legal
9
change due to a sale of Plaintiff 2, GMAC RFC Master Servicing, to Ocwen Master

Servicing. When Plaintiff sought substitution for the third named Plaintiff, its filing

alleged, On or about February 13, 2013, Ocwen Master Servicing purchased

GMAC-RFC Master Servicing. (R. at 2082, 3).

Tenth. Plaintiff did not address Gilliss tenth point and thus conceded that

there was no evidence showing that special indorsements were placed on the Note

before the Complaint was filed. The trial court cannot make a forced inference to

determine the date the indorsements were placed on the inadmissible Note.

Plaintiff has not sufficiently rebutted the deficiencies in the Complaint that

made it impossible for the trial court to make fair and just inferences necessary for

entry of default final judgment.

III. THE TRIAL COURT ABUSED ITS DISCRETION BY STRIKING

DEFENDANTS PLEADINGS AND ENTERING JUDICIAL
DEFAULT AS A DISCOVERY SANCTION WITHOUT MAKING
EXPRESS FINDINGS OF FACT. (Appellant addressed this argument
in its Section I.)
Plaintiff concedes that the trial courts order striking Gilliss answer fails to

satisfy the express written findings of fact requirement set forth by the Supreme

Court. (R. at 751-52; 779-80). On this basis alone, reversal is warranted. See Ham

v. Dunmire, 891 So. 2d 492, 495-96 (Fla. 2004); Singh v. Kumar, 4D17-241, 2017

WL 4535048, at *2 (Fla. 4th DCA Oct. 11, 2017) ([O]ur supreme court has been

10
clear that an order dismissing a claim as a sanction must contain an explicit finding

of willful noncompliance.) (internal citation omitted).

Plaintiffs contention that the trial court eventually satisfied the express

written findings of fact requirement by a subsequent order is unavailing. First, the

Florida Supreme Court rejected a similar attempt to rely on a later order that

articulate[d] additional support for [the trial courts] findings. Ham, 891 So. 2d at

500, n.4. Second, the subsequent order was entered nearly three years later (August

22, 2013) by a different judge (Judge Foster) who neither presided over the

September 27, 2010 hearing, nor entered the default orders. (R. at 2418-19;751-52;

779-80; 767). Judge Richards presided over the September 27, 2010 hearing. (R. at

767). Third, the August 22, 2013 order is still facially defective because it failed to

contain an explicit finding of willful noncompliance, as it must. (R. at 2418-19).

See Ham, 891 So. 2d at 501 citing Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA

1993) (determining that a finding that defendants violations were inexcusable,

continuing, and repeated was not tantamount to a finding of willfulness or

deliberateness). Similarly, the August 22, 2013 order (R. at 2418-19) fails to include

express written findings of fact as opposed to a single, inaccurate statement:

Default was entered by this Court against Defendant [] as a sanction for

Defendants failure to comply with discovery obligations in this case and

Defendants repeated failure to comply with Court Orders on those issues. (R. at
11
2418). The record does not support the ruling. The court only issued one order

compelling discovery. As to the Defendants other discovery obligations, Plaintiffs

counsel admits that Defendant properly objected to the discovery. (R. at 1343).

Plaintiff cites Florida Rule of Civil Procedure 1.380 as the trial courts

authority for the to strike Gilliss pleadings, but striking pleadings is the severest

of penalties that should not be employed where viable alternatives exist. Tobin v.

Tobin, 117 So. 3d 893, 895 (Fla. 4th DCA 2013) (If the trial court can impose a

less severe sanction as a viable alternative, then it should use the alternative.)

(citation omitted). The sanctions provision of Rule 1.280 [] is not penal. It is not

punitive. It is not aimed at punishment of the litigant. The objective is compliance

compliance with the discovery Rules. The sanctions are set up as a means to an end,

not the end itself. The end is compliance. Hurley v. Werly, 203 So. 2d 530, 537

(Fla. 2d DCA 1967). The sanctions provision of Rule 1.280 is designed to give the

defaulting party a reasonable opportunity to comply even after a party fails or refuses

to appear. Id. Here, Plaintiff employed the sanctions provision as the end to the

litigation itself, with little effort at compelling Gilliss compliance. In fact, Plaintiff

filed only one motion to compel Gilliss deposition prior to moving the court to strike

Gilliss answer. (R. at 319-20; R. 541-43.)

Plaintiff relies on the transcript from the default hearing, but that transcript

shows that the trial court failed to consciously determine[], as it must, that Gilliss
12
actions in failing to attend his unilaterally set deposition were willful and the result

of deliberate disregard. Flagg v. Judd, 198 So. 3d 665, 667 (Fla. 2d DCA 2015)

(citing Ham, 891 So. 2d at 496). At the default hearing, in response to Plaintiffs

argument on the motion to strike, Gillis stated, First off, your Honor, theres a lot

of unsubstantiated facts that she just stated (R. at 1347:15-16). When the trial

court asked Gillis if he chose not to do the discovery Gillis responded, No, I have.

I have issued three subpoena duces tecum which they have ignored. (R. at 1349:7-

11). When Plaintiffs attorney noted that she attempted to coordinate Gilliss

deposition, Gillis responded, No. (R. at 1351:4-7).

Importantly, the trial court did not ask Gillis if he received notice of the

deposition that was reportedly left at his doorstep or if he was contacted by Plaintiffs

counsel to coordinate his deposition. The record neither establishes that Gillis knew

the deposition was scheduled by Plaintiff nor that Gillis knew Plaintiff allegedly

attempted to contact him. The trial court did not ask Gillis why he failed to attend

the January 22, 2010 deposition. After Gillis attempted to invoke his Fifth

Amendment privilege in response to the courts question, Do you at live at this

residence? (R. at 1352:12-13), the trial court stated:

Well, sir, Im going to sign this default. Im going to strike your

pleadings. You didnt go to deposition as ordered, sir . . .

(R. at 1352:25-1353:2).

13
 Finally, Plaintiff relies on Ledo v. Seavie Res., LLC, 149 So. 3d 707 (Fla. 3d

DCA 2014). Ledo concludes that express written findings of fact are not always

required where the record is not susceptible to more than one interpretation. Id. at

711. However, Ledos citation to Ham at 496 omits Hams critical holding that:

The dismissal of an action based on the violation of a discovery order

will constitute an abuse of discretion where the trial court fails to make
express written findings of fact supporting the conclusion that the
failure to obey the court order demonstrated willful or deliberate
disregard.

Ham, 891 So. 2d at 495. Ledo is distinguishable because there were three orders

preceding the order striking Ledos answer. The first was an agreed order regarding

Ledos interrogatories. The second order expressly warned Ledo that his failure to

comply with the order (regarding retaining counsel) could result in sanctions,

including striking of pleadings [or] entry of default. Ledo, 149 So. 3d at 708-09.

The third order warned Ledo that his pleadings would be stricken if he failed to

complete interrogatories: failure to comply . . . will result in defendants pleadings

being stricken. Id. at 709. The fourth order struck Ledos answer. In Ledo, [T]he

record plainly reflects that the trial court repeatedly informed Ledo: (1) of the need

to respond to the interrogatory requests; and (2) that sanctions, including the striking

of his pleadings, would follow if he failed to do so in a timely manner. Id. at 711

(emphasis in original).

14
 In this case, the trial court did not repeatedly inform or even once inform

Gillis that the specific sanction of striking his pleading would result if the deposition

was not held. Moreover, the record is plainly susceptible to more than one

interpretation, as Gillis disagreed with counsels argument at the hearing and

disagreed that the January 22, 2010 deposition was properly noticed with efforts to

coordinate by Plaintiffs counsel. The trial court failed to make express findings of

fact to support the exceptionally harsh sanction of striking Defendants pleadings.

This Court should overturn the default.

CONCLUSION

Because appellate courts do not generally provide parties with an opportunity

to retry their case upon a failure of proof, this Court should reverse the Default Final

Judgment and remand with instructions for entry of judgment in favor of the

Defendant Ronald P. Gillis. At a minimum, the default should be overturned since

the trial court failed to make express findings of willful or deliberate disregard and

the Final Default Judgment should be reversed because the Complaint was

insufficient to support the judgment.

15
Dated: November 21, 2017
Respectfully submitted,

By: /s/ Mark A. Cullen

Mark A. Cullen, Esq. |
Fla. Bar No. 325082
The Cullen Law Firm, P.A.
500 S. Australian Avenue, Suite 543
West Palm Beach, FL 33401
Phone: 561.640.9191 | Fax: 561.214.4021
E-mail: mailbox@cullenlawfirm.net

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy foregoing has been
furnished electronically pursuant to Fla. R. Jud. Admin. 2.516 to Kimberly Mello,
Esq., and Vitaliy Kats, Esq., Greenberg Traurig, P.A., Bank of Americas Plaza, 101
E. Kennedy Boulevard, Suite 1900, Tampa, FL 33602, mellok@gtlaw.com;
katsv@gtlaw.com; Michele L. Stocker, Esq., Greenberg Traurig, P.A., 401 East Las
Olas Blvd., Ste 2000, Ft. Lauderdale, FL 33301, stockerm@gtlaw.com; and
Albertelli Law, P.O. 23028, Tampa, FL 33623, servealaw@albertellilaw.com this
21st day of November, 2017.

/s/ Mark A. Cullen

By:____________________
Mark A. Cullen, Esq.
Fla. Bar No. 325082

CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the instant Initial Brief complies with the font

requirements of Fla. R. App. P. 9.210(a).

/s/ Mark A. Cullen

By:____________________
Mark A. Cullen, Esq.
Fla. Bar No. 325082

16