Torts — Dismissal — Fraud on the court — Trial court did not abuse discretion by dismissing plaintiff’s personal injury action for fraud on the court where plaintiff grossly misrepresented the nature and extent of her injuries, repudiated prior sworn testimony, and fabricated evidence

VIRGINIA PINO, Appellant, v. CGH HOSPITAL, LTD., etc., Appellee. 3rd District. Case No. 3D18-2517. L.T. Case No. 14-32621. August 14, 2019. An appeal from the Circuit Court for Miami-Dade County, Miguel M. de la O, Judge. Counsel: The Law Offices of Mario G. Menocal, P.A. and Mario G. Menocal, for appellant. Falk, Waas, Hernandez & Solomon, P.A. and Richard A. Warren, and Khristen S. Vachal-Reese, for appellee.

(Before FERNANDEZ, HENDON, and MILLER, JJ.)

(MILLER, J.) Appellant appeals from an order dismissing her personal injury action for fraud upon the court, contending the imposition of the “ultimate sanction” was wholly unwarranted under the facts presented in the lower tribunal. Alvarado v. Snow White & the Seven Dwarfs, Inc., 8 So. 3d 388, 388 (Fla. 3d DCA 2009). Employing “an abuse of discretion standard, . . . with the understanding that this standard is somewhat narrowed,” as an order of dismissal for fraud on the court must be based upon clear and convincing evidence, for the reasons set forth below, we affirm.¹ Diaz v. Home Depot USA, Inc., 196 So. 3d 504, 505 (Fla. 3d DCA 2016) (internal quotation marks omitted) (quoting Suarez v. Benihana Nat’l of Fla. Corp., 88 So. 3d 349, 352 (Fla. 3d DCA 2012)).

After several years of contentious litigation, appellee alleged that appellant “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate [her claim] by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Sky Dev., Inc. v. Vistaview Dev., Inc., 41 So. 3d 918, 920 (Fla. 3d DCA 2010) (citation omitted). The lower tribunal conducted a comprehensive evidentiary hearing and, after considering transcripts, surveillance recordings, and “live testimony,” agreed and dismissed the case.²

The conclusion of the trial court rested upon findings that appellant grossly misrepresented the nature and extent of her injuries, as evidenced by indisputable recorded surveillance, repudiated her prior sworn testimony explicating the alleged location and material circumstances of the disputed accident, and fabricated evidence to support her theory of prosecution.³ These “falsehoods” bear directly on the central issues in controversy, namely liability and damages. Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998) (“The integrity of the civil litigation process depends on truthful disclosure of facts. A system that depends on an adversary’s ability to uncover falsehoods is doomed to failure, which is why this kind of conduct must be discouraged in the strongest possible way.”); see Austin v. Liquid Distribs., Inc., 928 So. 2d 521, 521 (Fla. 3d DCA 2006) (reaffirming that “[w]here a plaintiff makes misrepresentations and omissions about [the] accident and medical history . . . in depositions, those misrepresentations and omissions go to the heart of [the] claim and subvert the integrity of [the] action”).

As the record amply reflects an intent to deceive the lower tribunal, we discern no abuse of discretion and affirm.⁴ See Willie-Koonce v. Miami Sunshine Transfer & Tours Corp., 233 So. 3d 1271, 1274 (Fla. 3d DCA 2017) (affirming the dismissal of a lawsuit where surveillance video and the plaintiff’s testimony provided “clear and convincing evidence of an intention to deceive the court”); Cox, 706 So. 2d at 47 (finding no abuse of discretion in dismissing the plaintiff’s complaint where it was “clearly . . . shown [the plaintiff gave] many false or misleading answers in sworn discovery that either appear[ed] calculated to evade or stymy discovery on issues central to [the] case”).

Affirmed.

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¹“Because dismissal is the most severe of all possible sanctions . . . it should be employed only in extreme circumstances.” Ruiz v. City of Orlando, 859 So. 2d 574 (Fla. 5th DCA 2003) (quoting Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998)). To that end, “the questionable conduct” should “involve matters [considered] central to the issues in [the] lawsuit.” Bertrand v. Belhomme, 892 So. 2d 1150, 1153-54 (Fla. 3d DCA 2005); see Hair v. Morton, 36 So. 3d 766 (Fla. 3d DCA 2010). Moreover, “[t]he evidence of fraud . . . must be clear and convincing to warrant dismissal.” Hair, 36 So. 3d at 770.

²“When the trial court’s decision is based on live testimony, the appellate court defers to the trial court’s determination as to the credibility of witnesses.” Evans v. Thornton, 898 So. 2d 151, 152 (Fla. 4th DCA 2005) (citation omitted).

³“Florida appellate courts have readily affirmed the dismissal of pleadings against a party that engages in perjury when that perjury permeates throughout the . . . proceedings and is related to a party’s claim or defense.” Empire World Towers, LLC v. CDR Creances, S.A.S., 89 So. 3d 1034, 1038 (Fla. 3d DCA 2012) (citations omitted).

⁴Although “somewhat narrowed” here, generally, “[i]f reasonable men [and women] could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) (citation omitted).