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Attorney Heather Freeman's Article Published

Heather Article Published

Anderson & Anderson Attorney Heather Freeman wrote an article which was published in the November/December 2015 Florida Justice Association Journal #587.

Please continue to read the article's contents.

The Seductive Power of a Motion to Dismiss for Fraud on the Court

The "gotcha" moment occurs, and opposing counsel catches your injured plaintiff in a lie, misstatement, inconsistency, or omission. Does opposing counsel save it as fodder for a great "Perry Mason" style cross examination? Or does he move for the ultimate sanction to dismiss the case for fraud on the court? Clearly, the chance to eradicate the plaintiff's case on a motion is tempting. Over the years, this temptation has led to many motions to dismiss for fraud, and many trial courts granting such motions, so much so that the Fifth District Court of Appeal exclaimed "we anticipated, although apparently we underestimated, the seductive power of this remedy." Ruiz v. City of Orlando, 859 So.2d 574, 575 (Fla. 5th DCA 2003).

The goal is to never find your client or yourself in this scenario, especially since the consequences of such a motion reach beyond the dismissal, including potential charges of perjury against your client and ethical ramifications for you, the attorney. If it does happen, Florida's fact-intensive case law outlines the court's authority to address the motion, the standard to be met, and both successful and unsuccessful arguments to preserve your plaintiff's action.

The Court's Authority

The trial court has the inherent authority to dismiss a case when a fraud has been perpetrated as no litigant has the right to trifle with the courts. Tri Star Investments, Inc. v. Miele, 407 So. 2d 292 (Fla. 2d DCA 1981). Yet, the court "must always be mindful" of Florida's constitutional guarantees of access to the courts. Art. I, ยง 21, Fla. Const.; see also Granados v. Zehr, 979 So. 2d 1155, 1156 (Fla. 5th DCA 2008). Courts must balance these competing policies when deciding a motion to dismiss for fraud. Ruiz, 859 So.2d at 575-576.

The trial court's decision is reviewed under an abuse of discretion standard. Howard v. Risch, 959 So. 2d 308 (Fla. 2d DCA 2007).The appellate court gives deference to the trial court applying the reasonableness test. Leo's Gulf Liquors v. Lakhani, 802 So. 2d 337 (Fla. 3d DCA 2001). However, if the trial court does not conduct an evidentiary hearing, less deference is given. See Gautreaux v. Maya, 112 So. 3d 146 (Fla. 5th DCA 2013)(citation omitted).

Standard

The frequently-cited standard to dismiss for fraud is outlined by the First Circuit Court of Appeal:

A 'fraud on the court' occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.

Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)).

Arguments

It should be argued to the plaintiff's advantage that the standard is stringent and rigorous, with the heightened clear-and-convincing-evidence burden of proof. Laschke v. R.J. Reynolds Tobacco Co., 872 So. 2d 344, 347 (Fla. 2d DCA 2004)(citation omitted). This standard is stringent because dismissal for fraud is "an extreme remedy, and should not lightly be engaged...because dismissal sounds 'the death knell of the lawsuit' district courts must reserve such strong medicine for instances where the defaulting party's misconduct is correspondingly egregious." Aoude, 892 F.2d at 1118 (emphasis added).

Many Florida courts when declining to dismiss a case for fraud cite this Aoude language or craft similar language. Bologna v. Schlanger, 995 So. 2d 526, 527 (Fla. 5th DCA 2008) ("We have tried very, very hard to explain and to emphasize, that this power to dismiss a lawsuit for fraud is an extraordinary remedy"); Ibarra v. Izaguirre, 985 So. 2d 1117, 1118 (Fla. 3d DCA 2008) ("Dismissal with prejudice is unreasonably harsh... because the punishment was not commensurate with the crime"); Furst v. Blackman, 744 So. 2d 1222, 1224 (Fla. 4th DCA 1999) ("dismissal is the most severe of all possible sanctions, it should be employed only in extreme circumstances" (citing Kornblum v. Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992))); Young v. Curgil, 358 So. 2d 58, 60 (Fla. 3d DCA 1978) ("the facts herein do not rise to the level of fraud... to dismiss the plaintiff's claims as an outrageous misuse of the system of justice.").

The standard dictates that to grant a dismissal for fraud the evidence must prove the plaintiff "sentiently set in motion," or knowingly and intentionally committed fraud on the court. Baker v. Myers Tractor Services, Inc., 765 So. 2d 149 (Fla. 1st DCA 2000). Sometimes this fraudulent intent is easily found by the court. Taylor v. Martell, 893 So. 2d 645 (Fla. 4th DCA 2005) (plaintiff forged and created fraudulent documents warranting dismissal); Wenwei Sun v. Aviles, 53 So. 3d 1075 (Fla. 5th DCA 2010) (dismissal justified when three claimants admitted knowingly lying for 6 years on virtually every discovery occasion). Fraudulent intent has not been found when a plaintiff has low intelligence or understanding. Simmons v. Henderson, 745 So. 2d 1031 (Fla. 2d DCA 1999)(below average IQ); Howard, 959 So. 2d at 312 (limited education).

When assessing fraudulent intent, many courts consider the number of lies, misstatements, omissions or inconsistencies. Baker, 765 So. 2d at 150 ("What makes Baker's conduct particularly egregious is the number of times he actively sought to conceal the prior condition"); Morgan v. Campbell, 816 So. 2d 251 (Fla. 2d DCA 2002) (dismissal proper when plaintiff gave false testimony regarding sixteen doctors visits); Ramey v. Haverty Furniture Companies, Inc., 993 So. 2d 1014, 1017 (Fla. 2d DCA 2008) ("this is not...one isolated or two isolated incident[s] but... an eight- year period of time of at least 13 medical entries"); Hanono v. Murphy, 723 So. 2d 892, 892 (Fla. 3d DCA 1998) (plaintiff's claims warranted dismissal after pleading guilty to 14 counts of perjury for lies at pretrial deposition); Piunno v. R.F. Concrete Const., Inc., 904 So. 2d 658 (Fla. 4th DCA 2005) (seven misrepresentations and a false affidavit intended to hide the truth); Perrine v. Henderson, 85 So. 3d 1210 (Fla. 5th DCA 2012) (affirming dismissal based on numerous material misrepresentations).

Also relevant to determining fraudulent intent is whether the nature of the lies, misstatements, omissions or inconsistencies are related to a central issue of the case, if so, they are likely to be deemed fraudulent and sufficient for dismissal. Herman v. Intracoastal Cardiology Ctr., 121 So. 3d 583 (Fla. 4th DCA 2013) review denied, 139 So. 3d 298 (Fla. 2014). In personal injury cases, the central or core issue is the plaintiff's medical history, but a plaintiff's litigation history, prior injuries, and other accidents have also been found to be ultimate issues. Morgan, 816 So. 2d 251 (affirming dismissal since false testimony related to plaintiff's neck and low back injuries, the causation of which was the central issue); McKnight v. Evancheck, 907 So. 2d 699, 700 (Fla. 4th DCA 2005) (affirming dismissal as lies were about the plaintiff's "extensive medical history"); Piunno, 904 So. 2d 658 (affirming dismissal because misrepresentations about prior injuries and litigation history were relevant to ultimate issues in the case); Distefano v. State Farm Mut. Auto. Ins. Co., 846 So. 2d 572, 573 (Fla. 1st DCA 2003) (central issues to plaintiffs personal injury lawsuit included prior injuries, subsequent accidents, physical limitations, and prior injuries). Further, the Fourth District Court of Appeal finds dismissal proper when fraud "permeates the entire proceedings". Savino v. Florida Drive In Theatre Mgmt., Inc., 697 So. 2d 1011 (Fla. 4th DCA 1997).

On the other hand, if the nature of the inconsistencies are not related to a central issue, but related to a collateral issue, dismissing the entire action may not be appropriate. Howard, 959 So. 2d at 308 (plaintiff's criminal conviction omissions were not material to support the dismissal of the personal injury lawsuit); Laurore v. Miami Auto. Retail, Inc., 16 So. 3d 862, 863 (Fla. 3d DCA 2009) (plaintiff's undisclosed mental health history was not related to the back injury claim at issue and did not justify dismissal); Parham v. Kohler, 134 So. 2d 274, 276 (Fla. 3d DCA 1961) (false claims regarding marital status by alleged husband were collateral and did not support dismissal of both spouses' accident claims); Kornblum, 609 So. 2d at 139 (when fraud pertains only to part of the claim, the unaffected legitimate part of the claim should not be dismissed); but see Cox v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998) (although plaintiff's counsel argued the underlying claims were not affected by the misrepresentations, the court found the misrepresentations went directly to the issue of damages and affirmed dismissal).

Fraud occurring in other legal proceedings may be collateral and not sufficient to dismiss the case at issue. Bertrand v. Belhomme, 892 So. 2d 1150 (Fla. 3d DCA 2005) (reversing trial court's dismissal for fraud as the fraudulent conduct occurred in a federal proceeding); Suarez v. Benihana Nat. of Florida Corp., 88 So. 3d 349, 353 (Fla. 3d DCA 2012) (inconsistencies between plaintiff's civil and criminal depositions did not go to the "very heart of the claims" to warrant dismissal); but see Andrews v. Palmas De Majorca Condo., 898 So. 2d 1066, 1070 (Fla. 5th DCA 2005) ("A fraud on the court, any court, infects the entire proceeding.").

As alternatives to dismissal, the plaintiff should argue that showings of a poor memory, dissemblance, lying, factual inconsistencies, false statements, nondisclosure, and testimonial discrepancies are better handled by cross examination, impeachment, or other discovery sanctions. Gilbert v. Eckerd Corp. of Florida, Inc., 34 So. 3d 773, 774 (Fla. 4th DCA 2010) ("factual inconsistencies or even false statements are better managed through the use of impeachment or other discovery sanctions" (citing Ruiz, 859 So.2d at 576)); Bosque v. Rivera, 135 So. 3d 399 (Fla. 5th DCA 2014) ("poor recollection, dissemblance, even lying, can be well managed through cross-examination" quoting Bologna, 995 So.2d at 528); Bird v. Hardrives of Delray, Inc., 644 So. 2d 89, 89 (Fla. 4th DCA 1994) (reversing dismissal for fraud as plaintiff was entitled an opportunity to show that the action could continue with a less extreme remedy); Parham, 134 So. 2d 274 (alternate sanctions include citing the party for contempt, striking the sham pleading or testimony, and sending the record to the State Attorney's office for investigation); Bass v. City of Pembroke Pines, 991 So. 2d 1008, n.2. (Fla. 4th DCA 2008) (alternate sanctions include modifying jury instructions, precluding a partial claim on areas where discovery was hampered, and assessing fees and costs against plaintiff for the defendant's extra work).

The plaintiff should also argue that allowing the case to proceed to trial, even with alternative sanctions, preserves the purpose of our legal system by allowing juries to make the ultimate decisions. Francois v. Harris, 366 So. 2d 851, 851 (Fla. 3d DCA 1979) ("In all but the most extreme cases, our system entrusts juries with the ultimate decisions as to whether claimed injuries are genuine or not. Our experience has demonstrated that juries deserve this trust and that they are well able to discern the truth and to render judgment accordingly."). Further, Florida's Constitutional guarantees of access to the courts is protected. Gautreaux, 112 So. 3d 146; but see Andrews, 898 So. 2d 1066 (a party can by his or her own conduct forfeit the constitutional right to have a case heard).

The success of other arguments depend on the case facts and venue. For example, some courts have forgiven a plaintiff's omission of a prior accident and/or injury if such event occurred years prior. JVA Enterprises, I, LLC v. Prentice, 48 So. 3d 109 (Fla. 4th DCA 2010) (gap of approximately 17 years since prior injury was compelling to finding that plaintiff lacked intent to defraud); Bologna, 995 So. 2d 526 (several year gap from prior omitted events and overlapping medical treatment were relevant to the court finding no intent to defraud); but see Ramey, 993 So.2d at 1014 (plaintiff's case dismissed despite temporal gap).

Some courts find persuasive the argument that there may be a discrepancy between what the plaintiff subjectively believes, what the defense or a jury may believe, and what the records may show. Amato v. Intindola, 854 So. 2d 812, 813 (Fla. 4th DCA 2003) ("In most cases of personal injury there is a disparity between what the plaintiff believes are limitations cause by injuries and what the defense thinks...the fact that a surveillance tape shows discrepancies usually affects the jury's view... but in this case it does not merit a dismissal..."); Ibarra, 985 So. 2d 1117 (plaintiff provided an affidavit stating he didn't believe his omitted prior incident qualified as an "injury"); Bologna, 995 So. 2d at 528-529 ("A clear line of what pain happened when and who treated what is not so easy to recall as it is to read when Dr. Lynch's records are examined."). The Jacob court explained the logic behind this argument by analogy:

In nearly every intersection collision, there is only one person with the right of way. Is the fact that both drivers believe they had the right of way the result of fraud? If there are ten eyewitnesses to the collision and all agree driver A had the right of way, does that make driver B's claim fraudulent and subject to dismissal?

Jacob v. Henderson, 840 So. 2d 1167, 1169 (Fla. 2d DCA 2003).

In her concurring opinion, Judge Griffin added other factors for courts to consider such as age, stress, and fatigue when determining whether a plaintiff's conduct is fraudulent; she reasoned:

I am skeptical that all of the plaintiffs in the recent profusion of "fraud on the court" cases are thieves and perjurers... Just as some people seem to revel in every aspect of every medical event in their lives...others are the opposite... I just don't think having a judge pick between "could have forgotten" or "could not have forgotten," without more, is a fair or accurate way to decide these cases...

Bologna, 995 So. 2d 526 (Griffin, J., concurring). However, other courts have disagreed. Austin v. Liquid Distributors, Inc., 928 So. 2d 521 (Fla. 3d DCA 2006) (extensive medical history precluded argument that plaintiff forgot or was confused).

Another argument that yields varying results is that the evidence being used as proof of fraud was found in discovery provided by the plaintiff. Some courts have found this argument persuasive and have not dismissed the case. Howard, 959 So. 2d 308 (court found it persuasive that the defense was using medical records as proof of fraud that the plaintiff himself identified); Granados, 979 So. 2d at 1158 ("the defense was not hoodwinked" when the plaintiff revealed the names of her treating physicians which had the records of treatment she did not recall); Cross v. Pumpco, Inc., 910 So. 2d 324, 325 (Fla. 4th DCA 2005) (although he was ultimately wrong in his recollection of past events, appellant was not fraudulent as he disclosed a prior accident and treating doctor).

Other courts have deemed these types of disclosures as "half truths" not sufficient to escape dismissal. Morgan, 816 So. 2d 251 (affirming dismissal and finding plaintiff's disclosure about some matters and treatment to be only half truths). These holdings rest on the policy concern that a defendant should not be prejudiced by a plaintiff's omissions or misstatements: "a system that depends on an adversary's ability to uncover falsehoods is doomed to failure". Cox, 706 So. 2d at 47; Aoude, 892 F.2d at 1118-1119 ("the tactic plainly hindered defendant's ability to prepare and present its case, while simultaneously throwing a large monkey wrench into the judicial machinery.").

Another argument that produces mixed results attacks the questions posed by defense counsel. A plaintiff's case may survive in some courts if the questions posed were "vague and imprecise". Vieira v. Doe, 813 So. 2d 1030, 1031 (Fla. 4th DCA 2002); see also Howard, 959 So. 2d 308 (plaintiff was not asked to answer additional questions at deposition to clarify his interrogatory answer). Other courts do not find this excusable and place the blame on the plaintiff for not asking for clarification. Metro. Dade County, 736 So. 2d 794; see also Leo's Gulf Liquors, 802 So. 2d at 343 (rejecting plaintiff's argument that "they were responding narrowly to inartfully crafted questions" because trial manuals teach lawyers to instruct deponents to provide abbreviated responses and not to volunteer information). Courts have also expressed concern when a plaintiff answers "no" instead of "I don't recall". Ramey, 993 So. 2d 1014.

If a problem with testimony arises, a plaintiff should remedy it as soon as possible. Ramey, 993 So. 2d 1014 (amended answers to interrogatories were insufficient when filed after a motion to dismiss for fraud a year after the omission occurred); Baker, 765 So. 2d at 151 (errata filed more than three months after deposition and one week after motion for dismissal did not cure fraud). And a plaintiff should not make an argument that the attempted fraud was unsuccessful. Aoude, 892 F.2d at 1115.

Conclusion

While "twenty-five years ago these circumstances would have given the defense lawyer a wonderful topic for cross examination... The courts have gradually become more willing to use the ultimate sanction of dismissal with prejudice against plaintiffs who play fast and loose with the truth." Morgan, 816 So. 2d 251, (Altenbernd, J., Concurring). The consequences of a dismissal for fraud extend beyond our clients' loss of their case, and can also directly affect us as lawyers. Leo's Gulf Liquors, 802 So. 2d at 343 (referring attorney to Florida Bar and warning "Lawyers who advise their clients and/or witnesses to mince words, hold back on necessary clarifications...do so at their own, and their clients' peril."); Baker, 765 So. 2d at n.1. (citing ethics rules that a lawyer may not knowingly allow any witness to offer false testimony). To protect our clients, their cases, and our ethical duties as lawyers, we should be aware of the potential for dismissal for fraud, the standard, and the arguments used for and against dismissal.

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