ROGER NIEHAUS

v.

DENNIS E. DIXON AND TINA M. NIEHAUS

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

ROGER NIEHAUS,

Appellant,

v. Case No. 5D17-470

DENNIS E. DIXON AND

TINA M. NIEHAUS,

Appellees.

________________________________/

Opinion filed February 16, 2018

Appeal from the Circuit Court for Putnam County, Scott C. DuPont, Judge.

R.

Kevin Sharbaugh, of Keyser & Sharbaugh, P.A., Interlachen, for Appellant.

Zachery Lucas Keller, of Keller Legal, Palatka, for Appellee, Dennis E. Dixon. No Appearance for Appellee, Tina M. Niehaus.

ON APPELLEE’S MOTION FOR CLARIFICATION

LAMBERT, J.

We deny Appellee, Dennis Dixon’s, motion for clarification¹ of our December 29, 2017 opinion. Nevertheless, on our own motion and unrelated to any matters raised in

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Dixon’s motion for clarification, we withdraw our prior opinion and issue the following opinion in its stead. Roger Niehaus appeals the final order dismissing his negligence action with prejudice as a sanction for committing fraud upon the court. In its order, the trial court found eight separate instances where it concluded that Niehaus made “false statements” or committed acts of intentional concealment. Because we hold that at least two of these findings were not supported by competent substantial evidence, we reverse the final order and remand for the trial court to reconsider whether the remaining findings in its order cumulatively support its conclusion that Niehaus committed a fraud upon the court. Niehaus filed suit against Dixon, alleging that Dixon negligently struck him in the head with the wing of an airplane that Dixon was operating, resulting in personal injury and damages to Niehaus. Dixon denied the allegations, instead asserting that as he was attempting to taxi the plane off the runway, Niehaus ran toward the aircraft, slammed his fist into the right wing of the plane, and then fell to the ground, exclaiming that Dixon had struck him with the aircraft. The parties thereafter engaged in fairly contentious litigation over the next three years, culminating in Dixon filing a motion to dismiss Niehaus’s complaint for fraud upon the court based upon Niehaus’s: (1) failing to disclose that he had been in an automobile accident resulting in injuries ten months earlier, (2) repeatedly lying during his deposition, and (3) intentionally concealing pertinent medical history from re-evaluate the remaining grounds and reconsider whether, in light of the opinion, the remedy of dismissal with prejudice is still appropriate. Contrary to Appellee’s belief, the opinion does not “implicitly” find that dismissal remains appropriate nor does it otherwise indicate to the trial court that it should again so determine.

Fraud upon the court is where “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)). A dismissal for fraud upon the court must be supported by clear and convincing evidence, Gautreaux v. Maya, 112 So. 3d 146, 149 (Fla. 5th DCA 2013) (citing Perrine v. Henderson, 85 So. 3d 1210, 1212 (Fla. 5th DCA 2012)), and because such a dismissal with prejudice is an extreme remedy that sounds the “death knell of a lawsuit,” trial courts are reminded that they should use the power of dismissal cautiously, sparingly, and only where a party’s conduct is egregious. Cox, 706 So. 2d at 46.

On appeal, a trial court’s findings of fact upon which it bases a dismissal for fraud upon the court will be upheld if they are supported by competent substantial evidence. See T.S. ex rel. D.H. v. Dep’t of Child. & Fams., 969 So. 2d 494, 495 (Fla. 1st DCA 2007) (stating that a trial court’s findings of fact pursuant to the clear and convincing evidence burden of proof are reviewed under the competent substantial evidence appellate standard of review (citing N.L. v. Dep’t of Child. & Fam. Servs., 843 So. 2d 996, 999 (Fla. 1st DCA 2003))). While the trial court’s conclusion that a fraud upon the court has occurred and its decision to dismiss the case with prejudice are reviewed for an abuse of discretion, appellate courts employ a more scrupulous and less deferential abuse of discretion standard in such cases to account for the heightened “clear and convincing”

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2003))). We further dismiss for lack of jurisdiction that part of the appeal challenging the trial court’s decision to refer Niehaus to the State Attorney’s Office of the Seventh Judicial Circuit to investigate whether Niehaus committed perjury in the circuit court proceedings,2 and to refer Niehaus’s counsel, Timothy Keyser, to the “Professional Ethics Committee of The Florida Bar for investigation into his actions in the course of this litigation.” Accordingly, we reverse the final order of dismissal with prejudice and remand for the trial court to reconsider and re-evaluate whether the remaining six findings in its order cumulatively support dismissal with prejudice for fraud upon the court. We dismiss those parts of the appeal challenging the referral of Niehaus to the State Attorney’s Office of the Seventh Judicial Circuit, the referral of his counsel to The Florida Bar, and the award of attorney’s fees to Dixon without setting an amount. REVERSED in part; DISMISSED in part; and REMANDED. COHEN, C.J., and PALMER, J., concur.

2 At oral argument, Niehaus’s counsel suggested that this issue may be moot.