11 Fla. L. Weekly Supp. 406a
Insurance — Fraud on court — Sanctions — Denial — No abuse of discretion to deny insurer’s motion to strike opposing counsel’s affidavit regarding attorney’s fees and dismiss claim due to fraud on court where opposing counsel claimed 25 hours for preparation of confession of judgment that was copy of pleading first filed by another attorney in different case, but counsel explained that he worked in conjunction with other attorney to prepare pleading and 25 hours was aggregate amount for all files in which issue arose and was pro-rated among the cases, and counsel withdrew the claim for 25 hours in its entirety
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. MIGUEL HERNANDEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-351 AP. L.C. Case No. 2001000851 CC 25. March 23, 2004. An Appeal from the County Court for Miami-Dade County. Counsel: Jeffrey David Feldman, for Appellant. Marlene S. Reiss, for Appellee.
(AMY STEELE DONNER, RONALD M. FRIEDMAN, and ARTHUR L. ROTHENBERG, JJ.)
(PER CURIAM.) We hereby AFFIRM the trial court as to all points, and wish to address the trial court’s finding that Mr. Bernard Butts’s conduct did not rise to the level of fraud.
In this case, appellant, United Auto, moved to strike opposing counsel’s affidavit regarding attorney’s fees, and to dismiss the claim for blatant fraud on the court. Additionally, United Auto requested that the court impose attorney’s fees as a sanction for bad faith conduct by opposing counsel, Bernard Butts. The trial court held a hearing with live testimony from the accused, Bernard Butts. The trial court found that Mr. Butts’s conduct did not rise to the level of fraud. The trial court refused to strike the affidavit, and denied the motion for attorney’s fees. This appeal ensued.
The standard of review for a trial court’s imposition of sanctions is abuse of discretion. Distefano v. State Farm Mutual Automobile Insurance Company, 846 So. 2d 572, 574 (Fla. 1st DCA 2003). 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 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)).
In the instant case, United Auto alleges that Mr. Butts committed fraud on the court because he claimed 25 hours in preparation for a motion for confession of judgment that was nothing more than a verbatim copy of a motion first filed by another attorney in a different case. Although the record reflects that the motion filed by Mr. Butts was a copy of the motion filed by a different attorney, Mr. Butts testified that he worked in conjunction with the other attorney in preparing the memorandum. Furthermore, Mr. Butts explained that the 25 hours he allegedly spent on the motion was an aggregate amount for all of the files in which the entitlement issue arose. He stated that the trial courts which were awarding fees based on United Auto’s confession of judgement were pro-rating that time amongst the various cases. Lastly, Mr. Butts withdrew the claim for 25 hours in its entirety. The trial court awarded Mr. Butts $325 per hour for 69.3 hours, cutting his requested time by more than half.
As stated above, fraud must be demonstrated, clearly and convincingly. In light of the facts of this case, it does not appear that the trial court abused its discretion in finding that Mr. Butts’s conduct did not rise to the level of fraud. Therefore, we hereby AFFIRM the trial court’s ruling.
As to appellee’s motion for attorney’s fees, it is hereby GRANTED. See Section 627.428 of the Florida Statutes.
* * *
