42
Fla. L. Weekly D608bTop of Form

Torts
— Automobile accident — Civil procedure — Dismissal — Fraud on court —
False or misleadingly incomplete discovery responses — Variances between
plaintiff’s deposition testimony in present case and an examination under oath
given by plaintiff in connection with a claim he made on his uninsured motorist
insurance for a subsequent accident — Failure to disclose in written
interrogatories subsequent accident and ensuing visits to health care providers
related to injury issues — Limited documentary record before trial court was
not sufficient to justify decision that dismissal, rather than impeachment at
trial or a traditional discovery sanction, was appropriate remedy for
plaintiff’s conduct — Remand for further proceedings

EDELMIRO
DUARTE, Appellant, v. SNAP-ON, INCORPORATED, a foreign corporation, and NORMAN
MULLINS, Appellees. 2nd District. Case No. 2D15-1952. Opinion filed March 15,
2017. Appeal from the Circuit Court for Lee County; Elizabeth V. Krier, Judge.
Counsel: Stacy L. Sherman of Stacy L. Sherman, P.A., Cape Coral, for Appellant.
Scott A. Cole and Daniel M. Schwarz of Cole Scott & Kissane, P.A., Miami,
for Appellee Snap-on, Incorporated. Caryn L. Bellus and Bretton C. Albrecht of
Kubicki Draper, P.A., Miami for Appellee Norman Mullins.

(SALARIO,
Judge.) Edelmiro Duarte was hurt when a truck owned by Snap-On, Incorporated
and driven by Norman Mullins slammed into the back of his car while he was
stopped in traffic. He challenges the trial court’s final order, rendered
without an evidentiary hearing, dismissing his personal injury suit against
Snap-On and Mr. Mullins as a sanction for a fraud upon the court. Because the
limited record before the trial court was insufficient to establish that this
case is among the hopefully rare ones involving an unconscionable scheme to
interfere with a trial court’s ability to impartially resolve a dispute or a
defendant’s ability to prepare a defense, we are constrained to reverse.

I.

On
January 18, 2008, Mr. Duarte was sitting in traffic on I-75 in a car he was
driving and in which his girlfriend, her daughter, his son, and his grandson
were passengers. At the same time, Mr. Mullins was on I-75 driving a truck
owned by Snap-On. He smashed into Mr. Duarte’s stopped car without hitting his
brakes. The police report says he was driving sixty miles an hour. After being
put through field sobriety tests, he was arrested for driving under the
influence causing serious bodily injury.

At
least some of the injuries caused by the accident were severe. Mr. Duarte’s
girlfriend was rendered a paraplegic. He testified that she filed suit to
recover for her injuries and settled her claims for many millions of dollars.
Mr. Duarte’s son and grandson likewise sued to recover for their injuries and
obtained much smaller, but still sizeable, settlements on their claims.

Mr.
Duarte filed this suit against Mr. Mullins and Snap-On to recover for his own
injuries on January 12, 2012. He claims to have suffered past, present, and
future loss of earnings, medical expenses, and pain and suffering, much of
which is claimed to be related to injuries to both his back and his arm. There
is no dispute as to liability. The dispute is over the extent of the injuries
the accident caused.

That
controversy takes on significance in this case because, after he filed suit,
Mr. Duarte was in another car wreck. On March 8, 2012, Mr. Duarte was
rear-ended at a stop sign. The parties dispute how severe this event was and
the extent to which it, rather than the January 2008 accident involving Mr.
Mullins, caused the injuries for which Mr. Duarte seeks to recover in this
case.

The
issues in this appeal concern the candor and completeness of Mr. Duarte’s
discovery responses about the March 2012 accident. Shortly before that
accident, Snap-On served Mr. Duarte with interrogatories asking for the names
of the medical providers that treated him at any relevant time and the dates of
those treatments. Mr. Duarte answered in April 2012 and identified eight
providers and dates of treatment between January 2008 and April 2012. He
amended his answers in April 2013 to disclose visits to several additional
providers, including the Cleveland Radiology Center in March 2012 and First
Chiropractic Center between March and June 2012.

Mr.
Mullins served Mr. Duarte with his own interrogatories in November 2013, which
asked the same questions as had Snap-On about medical providers and also asked
whether Mr. Duarte had been in any accidents since the January 2008 accident.
Although Mr. Duarte’s answer about the medical providers included several
providers from whom he sought treatment for back pain after the March 2012
accident, it did not identify Cleveland Radiology and First Chiropractic
Center. Mr. Duarte’s answer to the question about other accidents was “not that
I remember.”

Mr.
Duarte was deposed over two days in April 2013 and May 2014. During the May
2014 session, he was asked whether he had been involved in any type of accident
after the January 2008 accident. He testified that he had not, “unless it was
that one time that I was parked and someone hit me from behind and broke one of
my lights, but I don’t know if that’s considered an accident.” This was a
reference to the March 2012 accident. Mr. Duarte explained that he was at a
stop sign and a pick-up truck “touched us and they took off quickly.” He
declined to characterize the event as an accident, saying that the damage to
his car “was just a few dollars” but also stating that as a result “[m]y back
hurt even more, much more.” The record does not show whether this was the first
time Snap-On and Mr. Mullins had heard of the March 2012 accident; we note,
however, that they have not asserted that it was.

In
October 2014 — one month before the then-scheduled trial date — Snap-On filed
a motion to dismiss the case with prejudice based on fraud upon the court. Mr.
Mullins joined in the motion, which essentially argued that Mr. Duarte (1)
testified falsely about the severity of the March 2012 accident during his
deposition and (2) failed to disclose the March 2012 accident and the
subsequent visits to Cleveland Radiology Center and First Chiropractic Center
— related to back injury issues — in written answers to interrogatories.

The
motion included attached interrogatory answers and deposition transcripts upon
which the claim of fraud was based. It also included the transcript of an
examination under oath that Mr. Duarte gave in May 2012 in connection with a
claim he made on his uninsured motorist insurance for the March 2012 accident.
During that examination, Mr. Duarte described the March 2012 accident in
starker terms than during his deposition in this case, characterizing it as an
“accident” and describing it as a “hard impact very fast.” He also said that
“the car felt the impact,” that “[t]he trunk was all bent and the bumper was
indented,” and that the accident severely aggravated his back injury from the
January 2008 accident.

The
trial court heard the motion without taking evidence. Mr. Duarte proffered,
among other things, that he did not intend to mislead anyone, that he neither
reads nor speaks English — as evidenced by his use of an interpreter for
deposition — and that he suffers from memory deficiencies due to age and
medications he takes. Relying solely on the attachments to the motion, the
trial court concluded that Mr. Duarte told “repeated untruths” about the March
2012 accident and that his credibility was so damaged that his testimony could
not be presented to a jury. It entered an order dismissing the case with
prejudice from which Mr. Duarte took this timely appeal.

II.

A
trial court has the inherent authority to dismiss a suit when the plaintiff
commits a fraud on the court. Howard v. Risch, 959 So. 2d 308, 310 (Fla.
2d DCA 2007), distinguished on other grounds by Ramey v. Haverty
Furniture Cos., 993 So. 2d 1014 (Fla. 2d DCA 2008). Although our review in
such cases is for abuse of discretion, the trial court’s discretion is narrower
and our review is more stringent than it would be in other cases evaluated
under an abuse of discretion standard because dismissal is regarded as an
extreme remedy that should be reserved for extreme cases. Id. (“Because
dismissal is the most severe of all possible sanctions, however, it should be
employed only in extreme circumstances.”); see also Jacob v.
Henderson, 840 So. 2d 1167, 1169 (Fla. 2d DCA 2003), distinguished on
other grounds by Ramey, 993 So. 2d 1014. Moreover, where the trial
court makes a decision without hearing evidence, as it did here, we give that
decision less deference than we would in a case where the trial court heard
evidence because we can evaluate a cold trial court record as well as the trial
court can. Jacob, 840 So. 2d at 1170; see also Ruiz v. City of
Orlando, 859 So. 2d 574, 576 (Fla. 5th DCA 2003) (reversing dismissal for
fraud on the court).

To
obtain a dismissal for fraud on the court, the movant must prove his case by
clear and convincing evidence. See Myrick v. Direct Gen. Ins. Co.,
932 So. 2d 392, 392 (Fla. 2d DCA 2006). Substantively, he must show that his
opponent “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 of fact or unfairly hampering the
presentation of the opposing party’s claim or defense.” Jacob, 840 So.
2d at 1169 (quoting Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998)).
This standard requires that a trial court “balance two important public
policies of this state: our much preferred policy of adjudicating disputed
civil cases on the merits and the policy of maintaining the integrity of this
state’s judicial system.” Pena v. Citizens Prop. Ins. Co., 88 So. 3d
965, 967 (Fla. 2d DCA 2012) (citing Gilbert v. Eckerd Corp. of Fla., 34
So. 3d 773, 776 (Fla. 4th DCA 2010)). “Generally, unless it appears that the
process of trial has itself been subverted, factual inconsistencies or even
false statements are well managed through the use of impeachment at trial or
other traditional discovery sanctions, not through dismissal of a possibly
meritorious claim.” Howard, 959 So. 2d at 311.

Snap-On’s
pitch to the trial court was that Mr. Duarte played the 2008 and 2012 accidents
off each other to maximize his recovery in each — making the March 2012
accident sound serious for purposes of beefing up his uninsured motorist claim
for that accident and minimizing it here because it would weaken his claim for
damages based on the January 2008 accident.1 The paper record appended to
Snap-On’s motion to dismiss is certainly susceptible of that characterization.
But that record alone was not, under our court’s precedents, a sufficient basis
to dismiss Mr. Duarte’s claims with prejudice instead of allowing him to be
impeached at trial or imposing some lesser sanction, if warranted.

Our
decision in Jacob speaks to the variances in Mr. Duarte’s testimony in
his 2012 examination under oath and his deposition testimony in this case. Like
this case, Jacob involved a dispute over the extent of a plaintiff’s
injuries in an automobile accident. The plaintiff testified at deposition that
as a result of an injury to her arm, she was unable to close a car door with
her right hand or to sweep her own driveway. The defendants later produced a
surveillance video showing her doing what she said she could not. Based solely
on the transcript and the video and without taking evidence, the trial court
dismissed the action for fraud on the court. Holding that the trial court
abused its discretion, we reversed. 840 So. 2d at 1168. We reasoned as follows:

Viewing the facts before this
court, Mrs. Jacob either knowingly perpetrated a fraud, exaggerated her
injuries, or unknowingly provided video evidence that her injuries are far less
severe than she may believe. Only the first of these three possibilities
would support the dismissal of all claims with prejudice. . . .

. . . This is not a case
in which Mrs. Jacob suffered no injury. The question is the severity of her
injuries. Certainly, the video evidence that she is capable of performing tasks
which she has denied the ability to perform lessens her credibility . . . , but
the jury should evaluate this evidence. The power to resolve disputes over the
truth or falsity of claims belongs to a jury.

. . . [T]he trial court’s
ruling in this case resulted from a review of the same deposition and videotape
that we reviewed. Trial court rulings are given less deference when they are
based on the same cold document record that is before the reviewing court.

Id. at
1169-70 (emphasis added).

Like
Jacob, this is not a case in which Mr. Duarte suffered no injury. The
January 2008 accident was very severe, and Snap-On does not deny that Mr.
Duarte had injuries from it. The dispute here is over the extent of those
injuries and the extent to which the March 2012 accident caused or contributed
to them. On that score, Mr. Duarte did not falsely deny that in March 2012 a
pick-up truck hit his car while he was stopped. On the contrary, he identified
the event as having happened but described it as being slight and not, in his
opinion, rising to the level of an accident. Even then, he testified that the
event made his back hurt “much more” than it did before — a fact that
undercuts a theory that his back injuries were entirely attributable to the
January 2008 accident. Mr. Duarte’s testimony with regard to his insurance
claim on the March 2012 accident, like the video recording in Jacob,
diminishes the credibility of his deposition testimony about the severity of
the March 2012 accident. Without additional facts, however, the trial court
record does not establish that Mr. Duarte sentiently set in motion an
unconscionable scheme to defraud in this case against Snap-On and Mr. Mullins
such that it would warrant a dismissal. And without additional evidence
demonstrating a knowing fraud on the court in this case, the inconsistencies
between his May 2012 examination under oath and his May 2014 deposition are
regarded by our decisions as matters of fact and credibility for a jury to
resolve. See Jacob, 840 So. 2d at 1170; see also Kubel
v. San Marco Floor & Wall, Inc., 967 So. 2d 1063, 1064 (Fla. 2d DCA
2007) (holding that evidence that the plaintiff’s husband asked the physician
to revise a report to eliminate certain facts bearing on the plaintiff’s
injuries did not justify dismissal because those matters were suited for
impeachment at trial).

Our
decision in Howard, in turn, bears directly on the completeness of Mr.
Duarte’s interrogatory answers. That case, like this one, involved a dispute
over the extent of a plaintiff’s back injuries after an automobile accident.
The defendant sought a dismissal for fraud on the court because the plaintiff
failed to disclose, in response to a question at deposition, several medical
matters relevant to his claim of injury. The plaintiff did reveal some matters
bearing on his injuries but not all of them. The plaintiff denied an intent to
provide false information. After the trial court dismissed the action without
taking evidence, we reversed because the limited record before the trial court
was insufficient to warrant dismissal. 959 So. 2d at 314. In particular, the
trial court lacked evidence to find that the plaintiff affirmatively or
intentionally misrepresented his medical conditions, and there was no evidence
that the treatments the defendant later uncovered would have made any
difference to the case. Id.

As
in Howard, the record upon which the trial court based its decision in
this case was insufficient to deem Mr. Duarte’s interrogatory disclosure a
fraud on the court. Insofar as Mr. Duarte’s receipt of medical treatment
subsequent to the March 2012 accident from Cleveland Radiology and First
Chiropractic was concerned, those matters were disclosed in Mr. Duarte’s
amended answers to Snap-On’s interrogatories. Snap-On failed to mention that
fact in its dismissal motion, and the trial court failed to recognize it.
Because these facts were disclosed by Mr. Duarte, the fact that they were not
contained in either his initial answers to Snap-On’s interrogatories or his
answers to Mr. Mullins’ interrogatories cannot be said to have operated as a
fraud. Similarly, although Mr. Duarte’s December 2013 answers to Mr. Mullins’
interrogatories stated “I don’t remember” in response to a question about other
accidents, Mr. Mullins was informed during Mr. Duarte’s deposition about the
March 2012 collision and the fact that Mr. Duarte did not regard it as an
accident. The essential facts were disclosed — there was a collision, and Mr.
Duarte received treatment thereafter — but there is a dispute about the
characterization of those facts. On this record, the evidence is insufficient
to justify dismissal for fraud upon the court. See Howard, 959
So. 2d at 314; see also Laschke v. R.J. Reynolds Tobacco Co., 872
So. 2d 344, 346 (Fla. 2d DCA 2004) (reversing dismissal order where the
evidence was insufficient to show that plaintiff’s attempt to have medical
records altered “was one that, if she had been successful, would have
interfered with the trier of fact’s ability to impartially adjudicate the
issues . . . nor would it have unfairly ‘hampered’ the appellees’ presentation
of their defense”).

We
note that unlike our decision today, our court affirmed dismissals for fraud on
the court based on false or misleadingly incomplete discovery responses in both
Ramey, 993 So. 2d 1014, and Morgan v. Campbell, 816 So. 2d 251
(Fla. 2d DCA 2002). Those cases have several differences from the case before
us, but one key difference merits comment. In each, the trial court dismissed
the case after an evidentiary hearing enabled it to find as facts that the
plaintiff had done something false or misleading, that the plaintiff’s
nonculpable explanations for his conduct were unconvincing, and that the
conduct was of a kind sufficiently severe to warrant dismissal under our cases.
See Ramey, 993 So. 2d at 1020; Morgan, 816 So. 2d at 253.
Here, “the trial court failed to conduct an evidentiary hearing and thus lacked
a sufficient evidentiary basis for determining that fraud on the court had
occurred.” See Ramey, 993 So. 2d at 1020 (distinguishing cases
involving this circumstance).

III.

The
limited documentary record before the trial court was not sufficient to justify
a decision that dismissal, rather than impeachment at trial or a traditional
discovery sanction, was the appropriate remedy for Mr. Duarte’s conduct. As
such, the trial court abused its discretion in dismissing the action with
prejudice. Its final order is reversed, and the case is remanded for further
proceedings consistent with this opinion.

Reversed
and remanded. (LaROSE and SLEET, JJ., Concur.)

__________________

1Snap-On
also suggests that Mr. Duarte aided his alleged fraud upon the court by failing
to disclose a 1996 accident and failing to disclose the March 2012 accident
during an independent medical examination. Based on this record, we conclude
that these assertions lack merit.

* *
*