Third District Court of Appeal
State of Florida
Opinion filed February 17, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D19-1448
Lower Tribunal No. 17-1059
________________
Jean Carlos Salazar,
Appellant,
vs.
Miguel Rogelio Gomez,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Pedro P.
Echarte, Jr., Judge.
Kanner & Pintaluga, P.A, and Blair M. Dickert, and Leon O. Hunter
(Boca Raton); Ross & Girten, Lauri Waldman Ross and Theresa L. Girten,
for appellant.
Kubicki Draper, and Sharon C. Degnan (Orlando), for appellee.
Before MILLER, GORDO and BOKOR, JJ.
GORDO, J.
In this personal injury action, Jean Carlos Salazar appeals the trial
court’s order setting aside a jury verdict in his favor and dismissing the case
for fraud upon the court. We have jurisdiction. See Fla. R. App. P.
9.030(b)(1)(A). Salazar argues the motion to dismiss was based on issues
which were litigated at trial and passed upon by the jury and, as such, it was
improper for the court to set aside the jury’s verdict. We agree and vacate
the order under review with instructions to reinstate the verdict.
FACTS & PROCEDURAL HISTORY
In June 2015, Salazar, a 23-year-old body builder and personal trainer,
was involved in a motor vehicle accident and sustained neck injuries
requiring surgery due to a herniated disc. During his deposition, Salazar
disclosed that he had previously been involved in a minor fender bender in
2014 but that he did not sustain any injuries nor receive treatment following
that accident. While he testified that he had sustained injuries when
competing for CrossFit and that he had received physical therapy for sports-
related muscle aches, at deposition Salazar denied having been treated by
an orthopedic surgeon.
The week before trial, defense counsel received medical records
which, on their face, appeared to contradict Salazar’s prior testimony. The
records indicated that Salazar had previously seen an orthopedic surgeon
2
and received treatment for neck and back pain. Defense counsel did not
seek a continuance to conduct more discovery, request an updated
deposition or bring any pretrial motions regarding the alleged late discovery
or inconsistencies in Salazar’s testimony. Instead, the parties proceeded to
trial. During trial, defense counsel confronted Salazar with the alleged
inconsistencies in his testimony and prior medical records. Salazar
explained that he may have misspoken regarding prior treatment by an
orthopedic surgeon and maintained that his prior chiropractic treatment was
related to fitness activities and not any accident.
After a three-day trial, the jury found the defendant 61% negligent and
Salazar 39% negligent, and awarded Salazar past and future medical
expenses. Following the verdict, the defendant filed a motion to dismiss for
fraud and/or motion for new trial realleging only the same inconsistencies in
Salazar’s testimony as were presented to the jury. The defendant urged the
trial court to find that Salazar lied about issues central to the case and
perpetrated a fraud upon the court. Hearing only argument based on the
pretrial and trial testimony, the court granted the motion and dismissed the
case with prejudice. This appeal follows.
3
LEGAL ANALYSIS
We review the trial court’s order of dismissal for fraud on the court
under an abuse of discretion standard. Diaz v. Home Depot USA, Inc.,
196
So. 3d 504, 505 (Fla. 3d DCA 2016). “A trial court has the inherent authority
to dismiss an action when it finds that a plaintiff has perpetrated a fraud on
the court.”
Id. (quoting Medina v. Fla. E. Coast Ry., L.L.C.,
866 So. 2d 89,
90 (Fla. 3d DCA 2004)). “The burden of proving that a party’s conduct
warrants dismissal rests with the party alleging the fraudulent conduct.” Hair
v. Morton,
36 So. 3d 766, 769 (Fla. 3d DCA 2010). “The evidence of fraud
. . . must be clear and convincing to warrant dismissal.”
Id. at 770. “It cannot
be overstated that dismissal of an action is a severe sanction, and should
only be employed in extreme circumstances.”
Id. at 769.
No Preservation
We have little doubt that, in the instant case, the plaintiff gave
inconsistent testimony. This inconsistent testimony, however, was known to
defense counsel before trial and tested via cross-examination and re-direct.
Importantly, both sides presented their respective theories of the evidence
to the jury, and the jury was fully appraised of the alleged inconsistencies so
as to be able to determine whether Salazar lied or provided a reasonable
4
explanation. The jury, by its verdict, implicitly rejected the theory that
Salazar’s inconsistencies were lies.
We note that this Court has previously held that even where a witness
“‘knowingly gave and used false testimony,’ the proper remedy . . . was [to
bring] an in-trial motion—i.e., a motion for mistrial or a motion for
continuance.” KMart Corp. v. Hayes,
707 So. 2d 957, 958 (Fla. 3d DCA
1998). Here, the defendant did not seek a pretrial or in-trial remedy. As the
court cogently observed during the hearing on the post-trial motion to
dismiss, the defendant chose not to bring a motion to dismiss for fraud upon
the court prior to trial when the alleged false testimony became known to
him. Rather, the defendant chose to present these issues to the jury and the
jury rejected the defendant’s position on these issues. The defendant made
a “tactical decision to take [his] chances with the jury”—he “gambled and
lost,” as the jury returned a verdict in favor of Salazar despite the alleged
inconsistencies. See id.; Saxon v. Chacon,
539 So. 2d 11, 12 (Fla. 3d DCA
1989). “That [the defendant’s] strategy backfired neither requires nor permits
the court to allow [him] a new trial.”
KMart, 707 So. 2d at 958. Accordingly,
the trial court initially denied the relief the defendant requested.
On rehearing of the denial of the motion to dismiss for fraud and motion
for new trial, the court granted the motion and dismissed the case with
5
prejudice relying on Metropolitan Dade County v. Martinsen,
736 So. 2d 794
(Fla. 3d DCA 1999). In Martinsen, this Court reversed the trial court’s denial
of a motion to dismiss for fraud, finding the court abused its discretion where
the record clearly established that the plaintiff engaged in serious
misconduct.
Id. at 795–96. We echo that “[t]he integrity of the civil litigation
process depends on the truthful disclosure of facts.”
Id. at 796 (quoting Cox
v. Burke,
706 So. 2d 43, 47 (Fla. 5th DCA 1998)). Nonetheless, we must
distinguish the instant case. In Martinsen, the defendant appropriately
sought dismissal during the course of the trial—after it became apparent on
cross-examination that the plaintiff had been untruthful throughout discovery
on issues that went to the heart of her claim, thereby subverting the integrity
of the judicial process. The Court’s analysis focused primarily on Martinsen’s
false answers being calculated to evade or stymie discovery. While late,
here, Salazar provided the medical records before trial commenced and both
sides knowingly proceeded to trial.
No New Evidence
Essential to our analysis is that, following the verdict, the defendant did
not present any new evidence to the court in support of his motion to dismiss.
The trial court did not hold an evidentiary hearing on the motion and no
additional evidence was introduced demonstrating that the plaintiff
6
perpetrated a fraud on the court, which had not previously been submitted
to the jury during trial. See
Diaz, 196 So. 3d at 506. “It is ordinarily the
function of the jury to weigh and evaluate the evidence” in a negligence
action.” Nelson v. Ziegler,
89 So. 2d 780, 782 (Fla. 1956). “[T]rial judges
should refrain from acting as the seventh juror in the trial proceeding . . . .”
Hahn v. Medeiros,
858 So. 2d 1242, 1243 (Fla. 5th DCA 2003).
In order for alleged fraudulent conduct to warrant dismissal, the moving
party must establish
clearly and convincingly, 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. When reviewing a case for fraud, the court
should consider the proper mix of factors and
carefully balance a policy favoring adjudication on
the merits with competing policies to maintain the
integrity of the judicial system.
Suarez v. Benihana Nat’l of Fla. Corp.,
88 So. 3d 349, 352–53 (Fla. 3d DCA
2012) (quoting
Cox, 706 So. 2d at 46). We observe that “[a] lesser degree
of deference is accorded a trial court’s ruling when no live testimony is
presented and the order appealed is ‘based on the same cold document
record that is before the reviewing court.’”
Id. at 353 n.7 (quoting Jacob v.
Henderson,
840 So. 2d 1167, 1170 (Fla. 2d DCA 2003)).
7
We emphasize that inconsistencies or contradictions in testimony, which
perpetuate an “unconscionable scheme” to interfere with the jury’s ability
impartially to adjudicate a matter, can be grave enough to warrant a finding
of fraud. Such a finding sufficient to overturn a jury’s verdict and dismiss a
case, however, must be supported by clear and convincing evidence. Here,
while there may be inconsistencies or contradictions in the testimony, we
find the record fails to demonstrate clearly and convincingly that Salazar
engaged in a scheme designed to prevent the trier of fact from impartially
adjudicating this matter through lies, misrepresentations and otherwise
hiding the truth. See id.; E.I. DuPont De Nemours & Co. v. Native Hammock
Nursery, Inc.,
698 So. 2d 267, 273 (Fla. 3d DCA 1997) (“This court does not
sanction fraud . . . nor do we condone evidentiary fabrication . . . . By the
same token, we cannot approve insinuation or innuendo or for a claim of
fraud to be visited on a party without there being a showing that such fraud
occurred . . . .”).
In this instance, where the court heard no new evidence other than
what was known prior to trial and presented to the jury, where the moving
party sought no relief prior to or during trial and where the alleged
inconsistencies were subject to impeachment, cross-examination and jury
8
deliberation, we are constrained to conclude the trial court abused its
discretion in overturning the verdict and dismissing the case.
Reversed and remanded.
9
