14 Fla. L. Weekly Supp. 405a

Insurance — Personal injury protection — Fraud on court — Coaching witness — Sanctions — Dismissal — Where trial court held unrecorded sidebar at which attorneys for medical provider were instructed to warn provider’s corporate representative to refrain from making gestures that court believed were meant to coach insured during her testimony, and thereafter court declared mistrial with prejudice when it observed that provider’s representative continued to make gestures during cross-examination of insured, but record fails to demonstrate that provider’s representative was aware that his behavior would compromise case or understood consequences, provider’s due process rights were violated by dismissal without notice and opportunity to be heard

WEST DIXIE REHAB & MEDICAL CENTER, (a/o/a Exilia Pierre Louis), Appellant, vs. UNITED AUTOMOBILE INS. CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Dade County. Case No. 05-400 AP. L.C. Case No. 02-3484 CC 25. February 23, 2007. An appeal from the County Court for Miami-Dade County, Judith Rubenstein, Judge. Counsel: Marlene S. Reiss, Stephens, Lynn, Klein, La Cava, Hoffman & Puya, P.A., Miami, for Appellant. June Galkoski Hoffman and Marc J. Schleier, Fowler, White, Burnett, P.A., Miami, for Appellee.

(Before WILLIAM JOHNSON, ORLANDO A. PRESCOTT, and DAVA J. TUNIS, JJ.)

(ORLANDO A. PRESCOTT, J.) Appellant West Dixie Rehab & Medical Center a/o/a Exilia Pierre Louis (“Appellant/Plaintiff/West Dixie”) appeals an order from the lower court dismissing its claims with prejudice, following a finding of fraud upon the court, based on the trial court’s observations that Plaintiff’s corporate representative was “coaching” a witness on the stand during testimony. The trial court, in its order dated July 28, 2005, found that during testimony of the original Plaintiff Ms. Louis, who had assigned her PIP rights to West Dixie as against United Auto (“Appellee/Defendant/UA”) in exchange for medical treatment, the corporate representative of West Dixie, Mr. Moise, appeared to be “coaching” Ms. Louis on how to answer during cross-examination. The trial court stated that during a non-recorded side bar, it instructed Appellant’s attorneys to control their client and to warn him to refrain from such behavior. After the trial court observed that the Plaintiff’s behavior continued, the court excused the jury, declared a mistrial and dismissed the case with prejudice based upon the court’s inherent power to dismiss an action when fraud on the court has occurred. See County Court Order dated July 28, 2005, p. 4. We reverse the order dismissing the case with prejudice against Appellant and remand for further proceedings consistent with this opinion.

On Appeal from a trial court’s order dismissing claims with prejudice as a sanction for perpetrating a fraud on the court, the Appellate Court reviews the lower court’s action under an abuse of discretion standard. See Bertrand v. Belhomme, 892 So. 2d 1150, 1152 (Fla. 3d DCA 2005). In addition, the standard of review on appeal from an order declaring a mistrial is also reviewed for abuse of discretion. See Gatten v. Zachar, 932 So. 2d 543, 544 (Fla. 5 DCA 2006) (stating also that “[i]n reviewing such discretionary act, the appellate court should apply the [Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)] reasonableness test. See Baptist Memorial Hospital, Inc. v. Bell, 384 So. 2d 145, 146 (Fla. 1980).”).

Appellant sued Appellee for unpaid medical treatment claims provided to Ms. Louis under Appellee’s insurance policy. Ms. Louis had assigned her PIP claims to West Dixie against UA. On June 14 through 15, 2005, the trial commenced. During the cross-examination of Ms. Louis, the trial court called a side bar which was unrecorded. T. 3. After the side bar, Appellee’s attorney continued with the cross examination and after a few more questions, the court called a recess and declared a mistrial with prejudice based on the trial court’s observations. T. 5. After excusing the witness Ms. Louis, T. 10., the court explained that the basis for the mistrial was that Mr. Moise’s bodily gestures toward Ms. Louis while she was testifying seemed to be directing her answers. In the court’s opinion, Mr. Moise was commanding the witness’ testimony by either nodding or shaking his head or crossing his legs and moving his feet. T. 10-13. On July 28, 2005, the trial court issued an order of mistrial and dismissal with prejudice detailing the reasons for the dismissal. In that order, the trial court reiterated all the “observations” that led the court to believe that a fraud had been perpetrated on the court deserving of a mistrial. See County Court Order, ¶¶ 6, 7, 13, 14, 15, 17. While the trial court’s order is replete with references to the court’s observations, unfortunately, the record is devoid of the complained behavior. Likewise, while this Court recognizes the trial court’s inherent power to dismiss an action for perpetrating a fraud on the court, See Taylor v. Martell, 893 So. 2d 645 (Fla. 4th DCA 2005), this Court is nonetheless bound by the record below as it fails to directly support the trial court’s findings and further demonstrates that the Appellant failed to receive proper notice.¹ The record fails to demonstrate Appellant was aware that his behavior would compromise the case or that Appellant clearly understood the consequences. Thus, this Court feels that because Appellant lacked notice and an opportunity to be heard before its claims were dismissed, Appellant’s due process rights were violated.

In Medina v. Florida East Coast Railway, L.L.C., 866 So. 2d 89, 90 (Fla. 3d DCA 2004), the Third District Court of Appeal clearly stated:

We recognize that a trial court has broad discretion when imposing sanctions arising from serious abuses of the judicial process. Tramel v. Bass, 672 So. 2d 78, 82 (Fla. 1st DCA 1996). A trial court has the inherent authority to dismiss an action when it finds that a plaintiff has perpetrated a fraud on the court. Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998); Tri Star Invs., Inc. v. Miele, 407 So. 2d 292, 293 (Fla. 2d DCA 1981). However, due to the severity of dismissal as asanction, it should only be employed in extreme circumstances, Cox, 706 So. 2d at 46, and only after the plaintiff has been given fair notice and an opportunity to be heard. Sklandis v. Walgreen Co., 832 So. 2d 942, 943 (Fla. 3d DCA 2002).

Medina, 866 So. 2d at 90. (emphasis supplied).

Similarly, in Tri Star Investments, Inc. v. Miele, 407 So. 2d 292, 293 (Fla. 1981), cited above, the Court of Appeal also adhered to the same principles of judicial discretion and proper administration of justice to validate a court’s dismissal with prejudice. However, the Court also warned that “[t]he court, however, should carefully adhere to established due process, adversarial practice, and evidentiary rules in conducting an inquiry into such charges.” Id. at 293.

In evaluating a trial court’s abuse of discretion the Appellate Court must determine that “[d]iscretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, . . .” Canakaris v. Canakaris, 382 So. 2d 1197, 203 (Fla. 1980). Here, the Court is not so much convinced that the trial court’s behavior was “fanciful” or “arbitrary,” as much as it is concerned with the appearance that a decision based on personal observations without record evidence to support them and the failure to preserve such observations, might appear arbitrary or unreasonable.

This Court believes that there were other avenues available to the trial court which would have fully supported its actions under the same circumstances. For example, the court could have first excused the jury. The side bar where Appellant’s counsel was purportedly admonished to control his client and refrain from coaching the witness should have been recorded and should have occurred in the Appellant’s presence. Also, since the trial court stated in its order that it personally observed Mr. Moise engaging in certain behavior, the court should have, on the record, admonished him and ordered that he discontinue the behavior. The Court could have described its observations and inquire from the Appellant what the gestures meant and the reasons for doing them. Furthermore, the trial court should have afforded Appellant an opportunity to be heard regarding possible consequences, including dismissal, which he would face if the behavior continued. This procedure, affording both notice and an opportunity to be heard, akin to a “direct civil or criminal contempt” proceeding, would have provided enough safeguards to support the court’s ultimate conclusion.

Instead, the trial court called a side bar shortly into Ms. Louis’s cross-examination, T.3., which side bar was unrecorded. Briefly after the side bar, the court dismissed the jury for a short break and advised the parties it would declare a mistrial based on the court’s observations. T. 5. Before the court pronounced the mistrial, Mr. Alvarez, counsel for Appellant, asked the court to be allowed to speak with his client, but the court stated: “I made my decision. You can make your record if you disagree with my ruling, you can do so on the record. I reached the conclusion based on what I have seen happening in this courtroom, and I am moving forward with a mistrial with prejudice. . . .” T. 5, Lns. 20-25. Mr. Alvarez reiterated the lack of opportunity to confer with his client regarding the court’s impending decision. Mr. Babinsky, counsel for Appellee, argued that it was also too late for the Appellant to voluntarily dismiss without prejudice and confirmed the court’s alleged observations of Mr. Moise coaching the witness. He also stated that he personally observed Mr. Moise giving Ms. Louis two “thumbs up.” T. 9. The trial court further described how Mr. Moise would nod his head or shake it from left to right to coach the witness to answer accordingly, T. 11, and that during the unrecorded sidebar, Mr. Babinsky, counsel for Appellee, told the court he had just observed Mr. Moise giving the witness “two thumbs up.” T. 12. The court continued explaining that it observed Ms. Cardenas lean over to her client and whisper something to Mr. Moise immediately after the court admonished the attorneys to control their client. T. 12. When cross-examination resumed, the court stated that it saw Mr. Moise continuing to coach the witness either with single head movements or with his legs or feet. T. 13. The court also asked Ms. Cardenas whether she had warned her client; which Ms. Cardenas characterized as compromising the attorney-client relationship. T. 14. Finally, the court affirmed its belief that the observed conduct was “appalling” and “despicable,” and there was no “way to cure the pattern of conduct and the coaching that went on in this courtroom . . . .” T. 15.

In response to the previous court’s statements, Mr. Alvarez reiterated that he did not get an opportunity to speak with his client and requested to do so. The court granted him a brief meeting with his client while it dismissed the jury. T. 17. After the jury was dismissed, Mr. Alvarez again tried to convince the court that no improper behavior on his client’s part had taken place and perhaps the court misinterpreted the Plaintiff’s actions of moving away from the witness, so as to not face her, with coaching her through gestures. T. 19. Mr. Alvarez again stated that he believed the court would “voir dire” the Plaintiff regarding his actions. T. 20. Later, Mr. Babinsky suggested that the court in fact find that Mr. Moise committed a fraud on the court and to find him also in contempt for disobeying the court’s order to discontinue from “coaching” the witness. T. 20-21. Once more, Plaintiff’s counsel pled with the court to withhold any findings and to grant the Plaintiff an opportunity to obtain counsel in contemplation of a contempt hearing. T. 21-22. Shortly thereafter, the proceedings concluded. T. 22-23.

This Court, in reviewing the record, acknowledges the trial court’s efforts in making and preserving an accurate record. However, it is the lack of direct communication with the Appellant, identifying the improper behavior, warning and ordering him to cease the improper behavior and the lack of a contemporaneous description of the on-going conduct on the record that concerns this Court. See Fisher v. John Carter and Associates, Inc., 864 So. 2d 493 (Fla. 4th DCA 2004) (stating that due process in a court proceeding demands that the defendant be given fair notice and a reasonable opportunity to be heard before a judgment is rendered); see also Keys Citizens For Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So. 2d 940 (Fla. 2001), related reference; 840 So. 2d 1050 (Fla. 2003).

Finally, while this Court empathizes with the lower court’s frustration in protecting the integrity and fair administration of the justice system, it is also mindful that litigants should be afforded notice and an opportunity to be heard particularly when the consequences of their alleged misbehavior will have such adverse results as dismissal with prejudice. Therefore, it was imperative that the record unequivocally support the result.

Accordingly, the appealed order is REVERSED and REMANDED to the trial court for proceedings consistent with this opinion. (WILLIAM JOHNSON and DAVA J., TUNIS, JJ., CONCUR.)

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¹In fact, while this Court may believe that improper behavior occurred, it is constrained by the record below in reversing.