SKY DEVELOPMENT, INC., APPELLANT,
v.
VISTAVIEW DEVELOPMENT, INC., ET AL., APPELLEES
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Sky Development appeals the dismissal with prejudice of its complaint and award of attorney's fees based on witness tampering and fraud on the court. The court affirmed the dismissal, finding that Sky's attempts to influence testimony through notes and text messages during depositions and trial constituted an unconscionable scheme that justified the harsh sanction.
The trial court did not abuse its discretion. Sky's conduct—passing notes to a deponent and sending text messages to influence testimony—constituted a blatant showing of fraud on the court that amounted to an unconscionable scheme to improperly influence the trier of fact, justifying dismissal with prejudice and attorney's fees.
[1] A trial court may dismiss a complaint with prejudice as a sanction for a party's unconscionable scheme calculated to interfere with the judicial system's ability to impar…
[2] Witness tampering during a deposition or trial can constitute a fraud on the court justifying dismissal of a complaint.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The dismissal should be an object lesson for any corporate officer thinking of using old or new methods of witness tampering during deposition or trial.”
Establishes the court's strong disapproval of Sky's conduct and the general principle being enforced.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring a deposition of Sky's manager, Sky's CFO passed a note saying "Don't worry about pleasing him. Just say no," which was discovered and forbidden…
The full statement of facts, procedural history, and disposition for this case are member content.
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Sky Development, Inc., appeals a final judgment following the dismissal with prejudice of its complaint and award of attorney’s fees to defendant. The dismissal should be an object lesson for any corporate officer thinking of using old or new methods of witness tampering during deposition or trial. Finding that there is no abuse of discretion in the dismissal, we affirm.
During the deposition of Sky’s manager, Sky’s Chief Financial Officer passed the deponent a note that read, “Don’t worry about pleasing him. Just say no.” The note was brought to the attention of the magistrate presiding over the deposition; she forbad any further notes.
At trial, Sky’s CFO was being questioned about whether Sky received a key document. During a sidebar, while the CFO was still on the stand, Sky’s sole shareholder sent the CFO the following two text messages regarding receipt of the document.
• 10:22:30 a.m.: “We maybe got this document after September 7th when the bank discovered the problem.”
• 10:23:45 a.m.: “We never filed a lawsuit against seller. These people developed the site 40 years ago, in 40 years, and know every corner.”
Upon discovering the text messages, the trial court declared a mistrial and invited defendants to move for dismissal; they did *920so. On this basis, the court dismissed the complaint with prejudice, entered a final judgment against the plaintiff, and awarded the defendants attorney’s fees.
On this record, we cannot conclude that the dismissal, and entry of final judgment thereafter, was an abuse of discretion. The plaintiffs misconduct was certainly a “blatant showing of fraud, pretense, collusion or other similar wrongdoing.” Laurore v. Miami Auto. Retail, Inc., 16 So.3d 862, 864 (Fla. 3d DCA 2009).
The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sen-tiently 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)). 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.
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Pino v. The Bank OF NEW York, 121 So. 3d 23 (Fla. 2013)…court when plaintiff and his wife and daughter "lied on virtually every discovery occasion ... making it virtually impossible for the appellees to defend against the damage claims advanced by the appellants”); Sky Dev., Inc. v. Vistaview Dev., Inc., 41 So. 3d 918, 919-20 (Fla. 3d DCA 2010) (affirming trial court’s dismissal of plaintiff's action based on fraud on the court where corporate office tampered with witness during a deposition and the trial); Ramey v. Haverty Furniture Cos., 993 So. 2d 1014, 1020 (…
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Lerner v. Ino Halegua, 154 So. 3d 445 (Fla. 3d DCA 2014)…ence at the hearing in the civil case fell short of the “clear and convincing” showing necessary to support the dismissal of Lerner’s claims and defenses for fraudulent or unconscionable litigation misconduct. Sky Dev., Inc. v. Vistaview Dev., Inc., 41 So. 3d 918 (Fla. 3d DCA 2010). Our reversal on this point obviates the need to consider Lerner’s other points on appeal, as his counsel have now had ample opportunity to complete their investigation, and Mr. Lerner’s concerns regarding the pending criminal cas…
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Perez v. Safepoint Ins. Co. (Fla. 3d DCA 2019)…judicial system’s ability impartially to adjudicate [the non-moving party’s claim] by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Sky Dev., Inc. v. Vistaview Dev., Inc., 41 So. 3d 918, 920 (Fla. 3d DCA 2010) (emphasis provided) (citation omitted). In addition, and as correctly recognized by the trial court, when a party’s attorneys have contributed to the alleged misconduct imputed to the client, the trial court should weigh the…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Delno v. Mkt. ST. RY. Co., 124 F.2d 965 (9th Cir. 1942)
- COX v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998)
- Salim Aoude v. Mobil OIL Corp., 892 F.2d 1115 (1st Cir. 1989)
- Ibarra v. Izaguirre, 985 So. 2d 1117 (Fla. 3d DCA 2008)
- Cockfield v. State, 16 So. 3d 862 (Fla. 5th DCA 2009)
- Joses Marshall Laurore v. Miami Auto. Retail, Inc., 16 So. 3d 862 (Fla. 3d DCA 2009)