43
Fla. L. Weekly D401a

Torts
— Dismissal with prejudice — Fraud on court — Evidence did not support trial
court’s finding that plaintiff committed fraud on the court by failing to
disclose that he had suffered injuries in a prior automobile accident and by
giving false testimony — Remand for trial court to reconsider whether
remaining findings cumulatively support conclusion that plaintiff committed
fraud on the court — Appeals — Order finding entitlement to attorney’s fees
is not appealable where amount of fees was not set — Appellate court lacks
jurisdiction of portion of appeal challenging trial court’s decision to refer
plaintiff to state attorney’s office to investigate whether plaintiff committed
perjury, and to refer plaintiff’s counsel to Professional Ethics Committee of
The Florida Bar

ROGER NIEHAUS, Appellant, v. DENNIS
E. DIXON AND TINA M. NIEHAUS, Appellees. 5th District. Case No. 5D17-470.
Opinion filed February 16, 2018. Appeal from the Circuit Court for Putnam
County, Scott C. DuPont, Judge. Counsel: R. Kevin Sharbaugh, of Keyser &
Sharbaugh, P.A., Interlachen, for Appellant. Zachery Lucas Keller, of Keller
Legal, Palatka, for Appellee, Dennis E. Dixon. No Appearance for Appellee, Tina
M. Niehaus.

ON
APPELLEE’S MOTION FOR CLARIFICATION

[Original Opinion at 43 Fla. L. Weekly D81a]

(LAMBERT, J.) We deny Appellee,
Dennis Dixon’s, motion for clarification1 of our December 29, 2017 opinion.
Nevertheless, on our own motion and unrelated to any matters raised in Dixon’s
motion for clarification, we withdraw our prior opinion and issue the following
opinion in its stead.

Roger Niehaus appeals the final
order dismissing his negligence action with prejudice as a sanction for
committing fraud upon the court. In its order, the trial court found eight
separate instances where it concluded that Niehaus made “false statements” or
committed acts of intentional concealment. Because we hold that at least two of
these findings were not supported by competent substantial evidence, we reverse
the final order and remand for the trial court to reconsider whether the
remaining findings in its order cumulatively support its conclusion that
Niehaus committed a fraud upon the court.

Niehaus filed suit against Dixon,
alleging that Dixon negligently struck him in the head with the wing of an
airplane that Dixon was operating, resulting in personal injury and damages to
Niehaus. Dixon denied the allegations, instead asserting that as he was
attempting to taxi the plane off the runway, Niehaus ran toward the aircraft,
slammed his fist into the right wing of the plane, and then fell to the ground,
exclaiming that Dixon had struck him with the aircraft. The parties thereafter
engaged in fairly contentious litigation over the next three years, culminating
in Dixon filing a motion to dismiss Niehaus’s complaint for fraud upon the
court based upon Niehaus’s: (1) failing to disclose that he had been in an
automobile accident resulting in injuries ten months earlier, (2) repeatedly
lying during his deposition, and (3) intentionally concealing pertinent medical
history from his retained expert. The trial court held an evidentiary hearing
on this motion and rendered the final order now under review.

Fraud upon the court is where “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 of fact or unfairly hampering the
presentation of the opposing party’s claim or defense.” Cox v. Burke,
706 So. 2d 43, 46 (Fla. 5th DCA 1998) (quoting Aoude v. Mobil Oil Corp.,
892 F.2d 1115, 1118 (1st Cir. 1989)). A dismissal for fraud upon the court must
be supported by clear and convincing evidence, Gautreaux v. Maya, 112
So. 3d 146, 149 (Fla. 5th DCA 2013) (citing Perrine v. Henderson, 85 So.
3d 1210, 1212 (Fla. 5th DCA 2012)), and because such a dismissal with prejudice
is an extreme remedy that sounds the “death knell of a lawsuit,” trial courts
are reminded that they should use the power of dismissal cautiously, sparingly,
and only where a party’s conduct is egregious. Cox, 706 So. 2d at 46.

On appeal, a trial court’s findings
of fact upon which it bases a dismissal for fraud upon the court will be upheld
if they are supported by competent substantial evidence. See T.S. ex rel.
D.H. v. Dep’t of Child. & Fams., 969 So. 2d 494, 495 (Fla. 1st DCA
2007) (stating that a trial court’s findings of fact pursuant to the clear and
convincing evidence burden of proof are reviewed under the competent
substantial evidence appellate standard of review (citing N.L. v. Dep’t of
Child. & Fam. Servs., 843 So. 2d 996, 999 (Fla. 1st DCA 2003))). While
the trial court’s conclusion that a fraud upon the court has occurred and its
decision to dismiss the case with prejudice are reviewed for an abuse of
discretion, appellate courts employ a more scrupulous and less deferential
abuse of discretion standard in such cases to account for the heightened “clear
and convincing” evidentiary burden and the gravity of the sanction. See
Gautreaux, 112 So. 3d at 149 (quoting Suarez v. Benihana Nat’l of Fla.
Corp., 88 So. 3d 349, 352 (Fla. 3d DCA 2012)); see also Jimenez v.
Ortega, 179 So. 3d 483, 487 (Fla. 5th DCA 2015) (“[A] more stringent abuse
of discretion standard is appropriate [in reviewing a dismissal for fraud upon
the court] because dismissal is an extreme remedy.” (quoting Jacob v.
Henderson, 840 So. 2d 1167, 1169 (Fla. 2d DCA 2003))).

In the first ground justifying
dismissal for fraud upon the court, the trial court found that Niehaus did not
disclose that he had suffered injuries from a car accident ten months earlier.
The court erred in this finding because Niehaus did, in fact, provide pertinent
information and records about this accident when requested, but had not
disclosed this information earlier because Dixon admittedly did not ask Niehaus
about prior injuries or accidents in his initial discovery. Niehaus was under
no obligation to voluntarily provide records or other information prior to
being asked by Dixon.

In the eighth ground found by the
court for dismissal, the court concluded that Niehaus’s testimony at the
hearing on his motion was fraudulent. Niehaus was presented with two
photographs taken on different days that Dixon argued evidenced Niehaus’s
ability to work on airplanes, allegedly contradicting Niehaus’s claim that he
could no longer work on planes. In response, Niehaus testified that one photo
showed him working on a plane and the second appeared to show that he was
sitting on a stool taking a break but that he “probably” had been working on a
plane. Niehaus further explained that he was still physically able to work on planes;
however, due to problems with his memory, he would not be able to pursue
obtaining a license in airplane maintenance but could work on airplanes if
supervised. The court commented that the second photo appeared to show Niehaus
working on a plane, to which Niehaus testified that it looked as if he was
“looking for a screw or something in a screw can.” The court then concluded
that Niehaus had changed his testimony in response to the court’s comment and
that this “false testimony” constituted fraud upon the court under the standard
described in Cox. We disagree. Assuming that Niehaus’s comment in
response to the trial court was a “change” in testimony, we find that the court
abused its discretion as this testimony did not clearly and convincingly demonstrate
fraud.

Finally, although we have concern
about whether some of the remaining six grounds found by the court in its final
order would individually qualify as evidence of fraud upon the court, we
believe that the analysis of whether these six grounds cumulatively qualify for
the extraordinary remedy of dismissal with prejudice is initially best left to
the trial court. In doing so, we are mindful of the trial court’s finding in
its order that any one of the false statements made by Niehaus would warrant
dismissal. Having reviewed the record, we disagree with the trial court that if
Niehaus had only made one of the “false” statements described in the final
order that dismissal would be warranted under Cox and its progeny.

We also dismiss for lack of jurisdiction
that part of the appeal challenging the trial court’s award of attorney’s fees
to Dixon because, while the trial court found that Dixon is entitled to
attorney’s fees, it did not set an amount. See Mills v. Martinez, 909
So. 2d 340, 342 (Fla. 5th DCA 2005) (explaining that an order determining
entitlement to attorney’s fees was not a final order despite being included in
a final judgment because “[a]n award of attorneys’ fees does not become final,
and, therefore, appealable until the amount is set by the trial court” (citing Sanders
v. Palmieri, 849 So. 2d 417, 417 (Fla. 5th DCA 2003))). We further dismiss
for lack of jurisdiction that part of the appeal challenging the trial court’s
decision to refer Niehaus to the State Attorney’s Office of the Seventh
Judicial Circuit to investigate whether Niehaus committed perjury in the
circuit court proceedings,2 and to refer Niehaus’s counsel,
Timothy Keyser, to the “Professional Ethics Committee of The Florida Bar for
investigation into his actions in the course of this litigation.”

Accordingly, we reverse the final
order of dismissal with prejudice and remand for the trial court to reconsider
and re-evaluate whether the remaining six findings in its order cumulatively
support dismissal with prejudice for fraud upon the court. We dismiss those
parts of the appeal challenging the referral of Niehaus to the State Attorney’s
Office of the Seventh Judicial Circuit, the referral of his counsel to The
Florida Bar, and the award of attorney’s fees to Dixon without setting an
amount.

REVERSED in part; DISMISSED in part;
and REMANDED. (COHEN, C.J., and PALMER, J., concur.)

__________________

1Contrary to his inference stated in
his motion, Appellee is not the prevailing party in this appeal. We reversed
the final order under review with directions that the trial court re-evaluate
the remaining grounds and reconsider whether, in light of the opinion, the
remedy of dismissal with prejudice is still appropriate. Contrary to Appellee’s
belief, the opinion does not “implicitly” find that dismissal 

remains
appropriate nor does it otherwise indicate to the trial court that it should
again so determine.

2At oral argument, Niehaus’s counsel
suggested that this issue may be moot.

* * *