FRANCISCO IBARRA, APPELLANT,
v.
MARIO E. IZAGUIRRE AND CONTINUCARE CORPORATION, APPELLEES
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Francisco Ibarra appealed a trial court's dismissal of his personal injury lawsuit with prejudice based on alleged perjury and fraud upon the court. The Third District Court of Appeal reversed, finding that dismissal with prejudice was an unreasonably harsh sanction where the evidence did not clearly and convincingly establish fraud and the alleged inconsistencies could be addressed through cross-examination.
Dismissal with prejudice is not warranted where clear and convincing evidence of fraud is absent and the alleged inconsistencies can be adequately addressed through impeachment and cross-examination. Trial courts must exercise such drastic sanctions cautiously and sparingly, only upon the most blatant showing of fraud, and the punishment must be proportionate to the offense.
[1] Dismissal of a complaint with prejudice is an unreasonably harsh sanction when the alleged perjury does not rise to the level of clear and convincing evidence of fraud.
[2] A trial court has the authority to dismiss an action upon a finding of fraud by a party, but this power must be exercised cautiously and sparingly.
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Establishes the stringent standard for dismissal based on fraud and the requirement that courts exercise such power cautiously
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Join FLexlaw to unlock all legal intelligenceIbarra sued Continucare for injuries from a vehicle accident. Three years later, he slipped (but did not fall) at a Bank of America and reported the i…
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RAMIREZ, J.
Francisco Ibarra appeals the trial court’s final order dismissing his complaint with prejudice for perjury and perpetration of fraud upon the court. Dismissal with prejudice is unreasonably harsh given the facts of the case, and we therefore reverse the trial court’s order. Ibarra filed suit against Continucare for injuries he sustained in an auto accident involving a vehicle owned by Continucare and driven by Izaguirre with the company’s consent. Three years after the auto accident, Ibarra slipped, but did not fall, while in a Bank of America. He reported the incident to the bank and the bank took a recorded statement. In the statement, Ibarra stated he was not in pain immediately after the slip, but felt uncomfortable later that night.
In subsequent depositions and interrogatories, Ibarra repeatedly denied suffering any injuries prior or subsequent to the auto accident, excluding an eye injury that was irrelevant. He also repeatedly denied being involved in any litigation for injury other than the auto accident and eye injury.
Continucare obtained an affidavit from a representative at the bank summarizing Ibarra’s recorded statement after the incident. The affidavit also stated that Ibarra advised the bank that he was attending therapy as a result of his injuries and was still pursuing a claim against the bank. Based on this information, Continucare filed a motion to dismiss for perjury and perpetration of fraud upon the court.
In opposition to the motion to dismiss, Ibarra supplied a sworn affidavit stating that the bank incident did not fall under his interpretation of an “injury”, and therefore, he did not include that information in his depositions or interrogatories.
The trial court did not accept Ibar-ra’s explanation and found that the perjury went to the “heart of the matter asserted in the case.” The trial court granted the motion to dismiss with prejudice. Ibarra appeals that order. Because the punishment was not commensurate with the crime, we reverse the trial court’s order dismissing Ibarra’s complaint.
A trial court has the authority to grant a motion to dismiss an action upon a finding of fraud by a party. Rios v. Moore, 902 So. 2d 181, 183 (Fla. 3d DCA 2005). However, this power should be used cautiously and sparingly and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrongdoing. Id. Additionally, fraud must be proven by clear and convincing evidence. Howard v. Risch, 959 So. 2d 308, 312 (Fla. 2d DCA 2007).
Clear and convincing evidence of fraud is not present in this case. The slip at the bank never resulted in a formal claim with retained counsel. Ibarra’s answers can reasonably be viewed as a misinterpretation. The alleged inconsistencies can be better handled by impeachment and/or vigorous cross examination. Dismissal with prejudice is unreasonable and an abuse of discretion based on the facts of this case.
This ruling is not a license to lie. In cases where fraud can be proven by clear and convincing evidence, it is clearly within the trial court’s discretion to punish the offending party by dismissal. The facts of this case, however, do not rise to this level. The punishment of dismissal does not fit the crime.
For the foregoing reasons, we reverse the trial court’s order dismissing Ibarra’s complaint with prejudice.
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JVA Enters. v. Prentice, 48 So. 3d 109 (Fla. 4th DCA 2010)…ts, are well managed through the use of impeachment and traditional discovery sanctions. Id. at 328. Accord Bologna, 995 So. 2d at 528 (poor recollection, dissemblance, even lying can be well managed through cross-examination); Ibarra v. Izaguirre, 985 So. 2d 1117, 1119 (Fla. 2d DCA 2008) (alleged inconsistencies can be better handled by impeachment and/or vigorous cross-examination). A plaintiff may properly be cross-examined as to his previous injuries, physical condition, claims or actions for injuries si…
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Hair v. Morton, 36 So. 3d 766 (Fla. 3d DCA 2010)…ty alleging the fraudulent conduct. See Villasenor, 991 So. 2d at 436; Cross v. Pumpco, Inc., 910 So. 2d 324, 327 [*770] (Fla. 4th DCA 2005). The evidence of fraud, however, must be clear and convincing to warrant dismissal. See Ibarra v. Izaguirre, 985 So. 2d 1117, 1119 (Fla. 3d DCA 2008). “Meeting that burden will almost always require an evidentiary hearing.” Villasenor, 991 So. 2d at 436. In this case, the trial court conducted a non-evidentiary hearing, and relied solely on Hair’s interrogatory responses,…
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SKY Dev., Inc. v. Vistaview Dev., Inc., 41 So. 3d 918 (Fla. 3d DCA 2010)…, 892 F. 2d 1115, 1118 (1st. Cir. 1989)). There was ample evidence for the trial court to conclude that just such an unconscionable scheme was underway here. This is not a case where the dismissal was unreasonably harsh. Compare Ibarra v. Izaguirre, 985 So. 2d 1117 (Fla. 3d DCA 2008) (finding abuse of discretion in dismissing complaint where no clear and convincing evidence of fraud was presented). We cannot conclude the court abused its discretion.1 Affirmed. . "Discretion, in this sense, is abused when the…
Authorities Cited
- Theron D. Howard, Jr. v. Risch, 959 So. 2d 308 (Fla. 2d DCA 2007)
- Ike Hester v. State, 902 So. 2d 181 (Fla. 3d DCA 2005)
- Rios v. Moore, 902 So. 2d 181 (Fla. 3d DCA 2005)