Torts
— Automobile accident — Dismissal — Fraud on court — In dismissing case and
entering judgment in favor of defendants, trial court did not reweigh evidence
or substitute its own findings for those of the magistrate, but instead
correctly determined that magistrate’s findings of fact regarding plaintiff’s
affirmative lies and misrepresentations about her injuries and medical history
were supported by competent substantial evidence, and properly rejected
magistrate’s erroneous conclusion that such behavior fell short of a scheme to
subvert the judicial process

LETA G. MIDDLETON, Appellant, vs. SHANE D. HAGER, etc., et
al., Appellees. 3rd District. Case No. 3D15-136. L.T. Case No. 12-44672.
Opinion filed November 25, 2015. An Appeal from the Circuit Court for
Miami-Dade County, Diane V. Ward, Judge. Counsel: Genny A. Castellanos, for
appellant. Fowler White Burnett and Esther E. Galicia, for appellees.

(Before SHEPHERD, EMAS and FERNANDEZ, JJ.)

(EMAS, Judge.) Leta G. Middleton, the plaintiff below,
appeals orders which dismissed her claims with prejudice and entered judgment
in favor of Shane D. Hager and The Martin-Brower Company, based upon a finding
of fraud upon the court. Upon our review of the record, together with the
thoughtful and thorough order of the trial court, we affirm, holding that the
trial court did not err in determining the proper effect of the magistrate’s
factual findings, and did not abuse its discretion in imposing the ultimate
sanction of dismissal.

On September 23, 2011, Middleton was a passenger in a
vehicle that was rear-ended by a tractor-trailer driven by Hager, who was
employed by Martin-Brower. Middleton allegedly suffered personal injuries1 from the accident and in November
2012, filed suit against Hager. Martin-Brower was later added as a defendant in
the second amended complaint with allegations of vicarious liability and
negligent hiring and retention.

In June 2014, Hager and Martin-Brower filed a motion to
dismiss Middleton’s complaint for fraud on the court, based on Middleton’s
uncontested failure to disclose material information concerning her prior
accidents and medical history that were directly related and pertinent to the
causation and damages elements of the claims in the instant case.

The lower court referred the motion to a general magistrate2, and an evidentiary hearing was held
before the magistrate on July 24, 2014. The hearing centered on six material
affirmative misrepresentations by Middleton, made in the course of her
deposition and in answers to interrogatories:

1. Middleton denied that she had been in any prior auto
accidents.

2. Middleton testified she was “certain” that, prior to the
subject accident, she had never complained of neck or back pain, or of numbness
or tingling in her arms or legs.

3. Middleton denied that, prior to the subject accident, she
had ever seen an orthopedist, orthopedic surgeon, neurologist, neurosurgeon,
pain management doctor.

4. Middleton testified that she had never had an X-ray, CT
scan, or MRI on her neck or back prior to the subject accident.

5. Middleton testified that the first time she ever felt
numbness in her hands was following the subject accident.

6. Middleton denied that she ever received physical therapy
prior to the subject accident, except for a twisted ankle “years and years”
before the subject accident.

The magistrate determined that the evidence presented at the
hearing established that Middleton provided false testimony and affirmative
misinformation on multiple occasions throughout the course of discovery concerning
prior accidents and her highly relevant and critical medical history.
Specifically, the magistrate found the evidence established that:

1. Middleton was involved in a prior head-on vehicular
accident in November 2004 and was taken to Memorial West Emergency Room for
treatment of her injuries.

2. At Memorial West Emergency Room, Middleton complained of
numbness and tingling in her arms and legs, and received medical treatment for
back pain.3 Middleton returned to the same
emergency room in September 2005, again complaining of numbness and tingling in
her extremities.

3. Middleton was seen by neurologist Dr. Ken Fischer on four
different occasions in 2009, complaining of neck pain radiating down her right
side.

4. Middleton underwent a nerve conduction study and cervical
MRI at North Shore Medical Center in 2009, which revealed abnormalities.

5. Middleton was examined by orthopedic surgeon Dr. Michael
Wilensky on September 2, 2011 (just three weeks before the subject accident)
where she complained of chronic neck and back pain over the past two years with
a recent “flare up”. Dr. Wilensky prescribed three weeks of physical
therapy.

6. Middleton was treated at Select Physical Therapy on
September 10, 2011 (just 13 days before the subject accident) for “chronic”
neck and back pain.

In addition, the magistrate made four significant findings
of fact:

First, the magistrate found that Middleton’s
sworn answers on each of [the above] six material facts were, in fact,
false, and not the result of her poor memory or confusion. Middleton’s misleading
and false discovery answers resulted in an almost successful effort
to mislead the Defendants’ and interfere with their ability to determine the
truth about her 2004 head-on auto collision and her significant and
material past medical diagnoses and treatment for the identical medical
problems she now claims were caused by the September 2011 accident. The
magistrate thus clearly rejected Middleton’s explanation that her failure to
disclose the foregoing material information was due to memory loss or
confusion.

Second, the magistrate expressly found
that Middleton “did not offer any corroborating testimony about her loss of
memory of events prior to the [subject] accident.”

Third, the magistrate found that
Middleton’s testimony and demeanor during the evidentiary hearing,
including her explanation for her present inability to recall the names of
her doctors and the significant and continuing medical tests, treatment and
therapy prior to the September 2011 accident was not credible.

Fourth, the magistrate determined that
Middleton’s “discovery responses were not mere inconsistencies or failures to
remember.”

Despite the foregoing findings of fact, the magistrate
recommended to the trial court that it deny the motion to dismiss for fraud
because the magistrate concluded that Middleton’s “discovery misconduct falls
just short of proving [by] clear and convincing evidence . . . a deliberate
scheme to subvert the judicial process.” Instead, the magistrate
recommended that the appropriate sanction was an assessment of attorney’s fees
and costs against Middleton.

Hager and Martin-Brower filed exceptions to the magistrate’s
report and recommendation, taking issue with the determination that there was
no deliberate scheme, and also objecting to the recommendation that the trial
court deny the motion to dismiss and limit the sanctions to an award of attorney’s
fees and costs.

Following a hearing on the exceptions, the trial court
entered a seven-page, detailed order rejecting the magistrate’s recommendation
that it deny the motion to dismiss, finding that: (1) the magistrate’s
conclusion that Middleton did not engage in a “deliberate scheme” to interfere
with the judicial system’s ability to adjudicate her claims is not supported by
the competent substantial evidence, is contrary to the magistrate’s other
findings of facts, and is contrary to the magistrate’s unequivocal rejection of
Middleton’s sole explanation (lack of memory and confusion); and (2) the
magistrate misapplied the law in light of her unequivocal rejection — as “not
credible” — of Middleton’s explanations for her blatant omissions, falsehoods,
and lack of candor with regard to her prior accidents, injuries and medical
care and treatment.

The trial court dismissed Middleton’s complaint with
prejudice based upon a determination of fraud upon the court and entered final
judgment in favor of Hager and Martin-Brower. This appeal followed.

In Hanono v. Murphy, 723 So. 2d 892, 895 (Fla. 3d DCA
1998), this court observed that “[o]ur courts have often recognized and
enforced the principle that a party who has been guilty of fraud or misconduct in
the prosecution or defense of a civil proceeding should not be permitted to
continue to employ the very institution it has subverted to achieve her ends.”
Importantly, “the trial court has the inherent authority, within the exercise
of sound judicial discretion, to dismiss an action when a plaintiff has
perpetrated a fraud on the court.” Cox v. Burke, 706 So. 2d 43, 46 (Fla
5th DCA 1998). However, “because ‘dismissal sounds the death knell of the
lawsuit,’ courts must reserve such strong medicine for instances where the
defaulting party’s misconduct is correspondingly egregious.” Id.
(quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)).
Thus, “[w]hen reviewing a case for fraud, the court should ‘consider the proper
mix of factors’ and carefully balance a policy favoring adjudication on the
merits with competing policies to maintain the integrity of the judicial
system.” Id. (quoting Aoude, 892 F.2d at 1117-18). And “where a
party lies about matters pertinent to his own claim, or a portion of it, and
perpetrates a fraud that permeates the entire proceeding, dismissal of the
whole case is proper.” Id. at 47. There is no dispute that the lies told
by Middleton — that she had never been involved in a prior accident nor sought
medical care or treatment for the same types of injuries she alleges were
caused by the subject accident — were central to the issue of causation and to
her claim for damages in this case. Middleton argues, however, that the trial
court substituted its judgment for that of the magistrate and improperly
reweighed the evidence in determining that dismissal with prejudice was
warranted.

Ordinarily, we would review the trial court’s determination
in such a case under a narrowed abuse of discretion standard. Williams v.
Miami-Dade Cnty. Public Health Trust, 17 So. 3d 859 (Fla. 3d DCA 2009)
(holding that, “given the severity of the sanction of dismissal, [the abuse of
discretion] standard has been somewhat narrowed in application.”) (citing Ramey
v. Haverty Furniture Cos., 993 So. 2d 1014, 1018 (Fla. 2d DCA 2008)) for
the proposition that the “the trial court’s discretionary decision to dismiss
must be well-supported by the evidence.”) See also Papadopoulos v.
Cruise Ventures Three Corp., 974 So. 2d 418, 419 (Fla. 3d DCA 2007) (noting
that a “trial court’s findings will not be disturbed upon a clear showing of
fraud, pretense, collusion or similar wrongdoing.”)

In the instant case, however, we must consider the role
played by the magistrate in this scenario and its impact on the trial court’s
(and this court’s) review. As this court has previously said, “[o]nce a trial
court appoints a magistrate to take testimony and make findings, it loses the
prerogative of substituting its judgment for that of the magistrate.” Cerase
v. Dewhurst, 935 So. 2d 575 (Fla. 3d DCA 2006). Further:

When
a trial court reviews the recommendations of a general magistrate it takes on
the role of an appellate court. Thus, the trial court’s review . . . is limited
to determining whether the general magistrate’s findings of fact are supported
by competent substantial evidence, and whether the general magistrate either
made clearly erroneous legal conclusions or misconceived the legal effect of
the evidence.

S.V. v. Dep’t of Children & Families,
40 Fla. L. Weekly D1583 (Fla. 3d DCA July 8, 2015) (citing Dewhurst, 935
So. 2d at 578).

We conclude that the trial court did not reweigh the
evidence or substitute its own findings for those of the magistrate, but
rather, correctly determined that although the magistrate’s findings of fact
were supported by competent substantial evidence, the magistrate misconceived
the legal effect of that evidence. The magistrate’s findings of fact were very
clear on the fundamental facts at issue: Middleton lied under oath, and on several
occasions, about her prior accident, which also involved an automobile
collision and resulted in Middleton seeking emergency medical treatment for
left-sided body pain, pain across her lower back and numbness and tingling;
Middleton lied, under oath and on several occasions, about her prior (and
recent) treatment for those injuries; those prior injuries (and the treatment)
were substantially the same injuries as those allegedly suffered in the instant
case; and Middleton’s testimony at the evidentiary hearing was not credible,
including her testimony that these prior lies were the result of poor memory or
confusion.

The trial court properly and correctly determined the legal
effect of the magistrate’s factual findings and credibility determinations in
rejecting the magistrate’s erroneous conclusion that Middleton’s numerous
affirmative lies and misrepresentations fell “just short” of establishing a
deliberate scheme to subvert the judicial process. We hold that, even under a
narrowed standard of review, the trial court did not abuse its discretion in
concluding that those factual findings warranted the sanction of dismissal with
prejudice.4

We affirm the trial court’s order dismissing Middleton’s
action with prejudice and entering judgment in favor of Hager and
Martin-Brower.

__________________

1These alleged injuries included neck
and back pain as well as damaged nerves in her hands and arms, and “numbness,
tingling, pins and needles and chronic pain throughout [her] body” and,
according to her sworn deposition, all of Middleton’s ailments began when she
was in the subject accident and she never suffered from any of these ailments
prior to the subject accident.

2See generally,
Fla. R. Civ. P. 1.490.

3The Memorial West hospital records
indicated that during the November 2004 emergency room visit, Middleton
complained of a ten-year history of back pain. X-rays were taken at that time
and showed Middleton had moderate degenerative disease of the same areas of the
spine for which she underwent surgery following the subject accident.

4Indeed, relevant case law from this
court provides support for the proposition that the factual determinations in
the instant case not only warrant dismissal, but require it. Storm v.
Allied Universal Corp., 842 So. 2d 245 (Fla. 3d DCA 2003) (reversing trial
court’s order granting new trial and holding dismissal was required instead); Metro.
Dade Cnty. v. Martinsen, 736 So. 2d 794 (Fla. 3d DCA 1999); Murphy,
723 So. 2d at 896 (noting trial court has a duty to dismiss the complaint where
plaintiff perjured himself as to his physical restrictions following an alleged
dog attack.) See also, Papadopoulos, 974 So. 2d at 418; Leo’s
Gulf Liquors v. Lakhani, 802 So. 2d 337 (Fla. 3d DCA 2001).