26 Fla. L. Weekly Supp. 558b
Online Reference: FLWSUPP 2607DIXOInsurance — Homeowners — Dismissal — Fraud on court — Trial court’s dismissal of complaint for fraud on court is affirmed where plaintiff offered no evidence that technician was at insured’s home on days that humidity log indicated readings were taken, certificate of completion and satisfaction appeared to have been altered, and insurer presented credible evidence that not all services billed were actually performed — Trial court was not required to hold evidentiary hearing on motion to dismiss for fraud on court
STATE 2 STATE RESTORATION, INC., (a/a/o Curline Dixon), Appellant, v. FLORIDA PENINSULA INSURANCE COMPANY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE15-020826 (AP). L.T. Case No. COCE15-000599. June 27, 2018. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Stephen J. Zaccor, Judge. Counsel: Heather M. Kolinsky, Law Office of Chad A. Barr, P.A., Altamonte Springs, for Appellant. Glenn H. Malin, Peterson Bernard, Fort Lauderdale, for Appellee.
OPINION
(PER CURIAM.) Appellant/Plaintiff, State 2 State Restoration, Inc. (“State 2 State”), appeals a final order of dismissal with prejudice entered by the trial court on March 30, 2016, for fraud on the court. Having carefully considered the briefs, the record, and the applicable law, this Court dispenses with oral argument, and the final order of dismissal is hereby AFFIRMED as set forth below:
On January 5, 2015, State 2 State filed suit to recover full payment from Florida Peninsula Insurance Company (“Florida Peninsula”) for breach of contract pursuant to an assignment from Curline Dixon (the “Insured”). On June 8, 2015, Florida Peninsula filed a motion to dismiss State 2 State’s complaint for fraud on the court, arguing State 2 State had provided false or misleading documents regarding pivotal facts in the case. In support of its motion to dismiss, Florida Peninsula filed the affidavit of the Insured. On October 7, 2015, State 2 State filed its response to Florida Peninsula’s motion to dismiss. At the hearing held on October 8, 2015, the trial court concluded that State 2 State offered no evidence that a technician was at the Insured’s home on the days the Daily Humidity Log indicated readings were taken. The trial court also found that the Certificate of Completion and Satisfaction appeared to have been altered. Furthermore, the trial court determined that Florida Peninsula had presented credible evidence to support its contention that not all services billed by State 2 State were actually performed. On March 30, 2016, the trial court entered a final judgment dismissing State 2 State’s complaint with prejudice. This appeal followed.
A trial court’s dismissal with prejudice for fraud on the court is reviewed under a narrowed abuse of discretion standard. Suarez v. Benihana Nat’l of Fla. Corp., 88 So. 3d 349, 352 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D1121b]. A dismissal with prejudice for fraud on the court requires clear and convincing evidence “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.” Id. (quoting Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D299a]).
It is well settled in this district that a court is not required to hold an evidentiary hearing on a motion to dismiss based on fraud on the court. See Gilbert v. Eckerd Corp. of Fla., Inc., 34 So. 3d 773 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1060a]. “There is no rule, statute, or case’ that requires an evidentiary hearing to be held when a motion to dismiss for fraud is filed.” Id. at 776 (internal citations omitted). In the present case, although the trial court set the motion for an evidentiary hearing, the only evidence presented were an affidavit, deposition, and supporting documents. While the better practice is for the trial court to hold an evidentiary hearing and make factual findings, here State 2 State never objected during the hearing, held on October 8, 2015, to the trial court proceeding by way of affidavits, depositions. and a review of the file. Id. at 777. Because the trial court’s order granting Florida Peninsula’s Motion for Evidentiary Hearing and Motion to Dismiss Plaintiff’s Complaint for Fraud was supported by the record, we affirm.
Accordingly, the trial court’s Order Granting Defendant’s Motion to Dismiss for Fraud on the Court is hereby AFFIRMED. Further, State 2 State’s Motion for Appellate Attorney’s Fees is hereby DENIED. (HAIMES, and ROBINSON, JJ., concur. GARCIA-WOOD, J., dissents with opinion.)
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(GARCIA-WOOD, J., dissenting.) I must respectfully dissent. A careful review of the record does not support a dismissal with prejudice. First and foremost, the matter was scheduled and noticed as an “evidentiary hearing” on Florida Peninsula’s Motion to Dismiss for Fraud. According to the transcript the “evidentiary hearing” lasted twenty (20) minutes. An evidentiary hearing usually requires the court to take sworn testimony from witnesses subject to cross-examinations and evidence admitted on the record; that did not occur in this case. In this case, no one testified before the court, there is no evidence that was adduced and accepted by the trial court judge, instead, what the record supports is that only the attorneys for the respective sides appeared and presented arguments. Florida Peninsula submitted the affidavit of the insured; however, said affidavit was inadmissible at an evidentiary hearing because it deprived State 2 State the right to cross-examine the. affiant. The hearing was not scheduled as a summary judgment hearing under Florida Rule of Civil Procedure 1.510, where parties are permitted to submit summary judgment evidence such as affidavits, depositions, etc. Additionally, at the “evidentiary hearing” Florida Peninsula’s counsel improperly bolstered the sworn statement of the affiant by making comments such as: “By the way retired U.S. Army, very credible woman. I met with her and spoke with her, significantly met with her, had her affidavit signed. I was there throughout the entire process.” (Tr. p. 6, 1. 7-11) (emphasis added). This is not only improper bolstering, but Florida Peninsula’s counsel is testifying and vouching for the affiant’s credibility.
“Because dismissal is the most severe of all possible sanctions, it should be employed only in extreme circumstances.” Kornblum v. Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992). In Cox v. Burke, the court held that “because dismissal sounds the death knell of a lawsuit courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.” 706 So. 2d 43, 46 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D299a]. In Howard v. Risch, the court held that “[b]efore a trial court can make a discretionary decision regarding the dismissal of a case for fraud, it must have an evidentiary basis to make that decision.” 959 So. 2d 308, 312 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D1254b]. The facts in Howard v. Risch, are analogous to the facts of this case. In Howard, there was no “evidentiary hearing” just some affidavits, documents, and pleadings, but the court concluded that there was “nothing in the nature of admissible evidence, to prove fraud.” Id. Like the Howard opinion, there is no evidence in this case to support findings of fact based upon the heightened clear-and-convincing evidence standard regarding the allegations of fraud on the court.
Accordingly, I respectfully dissent and would reverse the dismissal with prejudice and remand for further proceedings.
