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Aoude v. Mobil Oil Corp., 892 F.2d 1115, 15 Fed. R. Serv. 3d 482 (1st Cir. 1989) (“Because corrupt intent knows no stylistic boundaries, fraud on the court can take many forms.”)

People are always asking how they go about getting their house back or how they stop a sale that is in process. One answer of course is the filing of a petition for bankruptcy which will both buy you time and probably put you in a venue where the judge, trustee and lawyers understand about prioritization and secured creditors, thus making your job a little easier. But another is in the State Court proceeding either initiated by the homeowner or as motion to the court to vacate prior orders, judgments or sales based upon a fraud on the court.

Perhaps the most interesting and untested interpretation of this is how it applies in cases of non-judicial sales. By definition, the sale is non-judicial at least until they file an unlawful detainer (eviction) action. My theory is that the use of non-judicial sale in the context of securitized loans may be a fraud on the court (and the state’s interest in having interests in real property properly recorded in an unbroken chain) because it is an unlawful election to avoid the scrutiny of the court and the requirement of due process.

Note that I am not saying here that all non-judicial sales are illegal. I am simply saying that where the loan is securitized, the ONLY proper procedural remedy is a judicial foreclosure because by definition there are multiple parties, each having some stake or claim in the mortgage, note or obligation. Each of those parties is entitled to receive notice and have an opportunity to be heard on their own claims regarding who should get title to the house or who should get the proceeds of sale. Even the homeowner is entitled to that because without having  a judicial determination of who actually is entitled to title or proceeds of sale, the homeowner can be left without the security and still be liable for claims on the obligation.

Here is an interesting article explaining the “fraud on the court” elements.

   The requisite fraud on the court occurs where "it can be
   demonstrated, 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." Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st
   Cir. 1989).... The trial court has the inherent authority, within
   the exercise of sound judicial discretion, to dismiss an action
   when a plaintiff has perpetrated a fraud on the court, or where
   a party refuses to comply with court orders. Kornblum v.
   Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992).

Note that the evidence necessary to support a finding of fraud on the court must be “clear and convincing,” a higher burden than a mere “preponderance of the evidence.” The foregoing blueprint for evaluating fraud on the court has not changed much over the years. What has changed is the increased willingness of trial courts to impose the ultimate sanction of dismissal with prejudice for plaintiffs and default for defendants, together with the increased willingness of appellate courts to affirm such dismissals and defaults pursuant to the applicable “abuse of discretion” standard of review. (3)

Judge Altenbernd, while recognizing this trend, has expressed concern that the ultimate sanction is employed more readily against plaintiffs than defendants. (4) Whatever the empirical data may reveal about the proportion of plaintiffs versus defendants subjected to the ultimate sanction for fraud on the court, nothing in the elements of fraud on the court or its implementation tilts the playing field in favor of defendants. A defendant’s fraud on the court is plainly no less worthy of censure and sanction than a plaintiff’s and the case law makes no distinction between the two.

Aoude v. Mobil Oil, 892 F.2d 1115, 1118 (1st Cir. 1989), on which Cox heavily relied, described the appellate court’s role in applying the abuse of discretion standard of review:

   While broad, the trial court's discretion
   is not unlimited. The [trial] judge must
   consider the proper mix of factors and
   juxtapose them reasonably. "Abuse occurs
   when a material factor deserving
   significant weight is ignored, when an
   improper factor is relied upon, or when
   all proper and no improper factors are
   assessed, but the court makes a serious
   mistake in weighing them." Independent
   Oil and Chemical Workers of Quincy, Inc.
   v. Procter & Gamble Mfg. Co., 864 F.2d
   927, 929 (1st Cir. 1988); see also Anderson
   v. Cryovac, Inc., 862 F.2d 910, 923
   (1st Cir. 1988) (to warrant reversal for
   abuse of discretion, it must "plainly appear[]
   that the court below committed
   a meaningful error in judgment").

As reiterated in Baker v. Myers Tractor Services, Inc., 765 So. 2d 149, (Fla. 1st DCA 2000):

   We review a trial court's imposition of
   sanctions under an abuse of discretion
   standard of review. See Mercer v. Raine,
   443 So. 2d 944, 946 (Fla. 1983); Tramel
   v. Bass, 672 So. 2d 78, 82-83 (Fla. 1st
   DCA 1996). As the Mercer court explained:
   "[T]o justify reversal, it would
   have to be shown on appeal that the trial
   court clearly erred in its interpretation
   of the facts and the use of its judgment
   and not merely that the court, or another
   fact-finder, might have made a different
   factual determination."

Fraud on the court as described in Cox typically refers to substantive, not procedural, misconduct–although the line between the two can be blurry. Cox makes clear that the sanction of dismissal with prejudice or default is available for both substantive and procedural misconduct. That is, in addition to encompassing false testimony and information about the facts of the case more conventionally considered to be fraud on the court, the sanction is also proper for repeated refusals to comply with court orders or otherwise obstructing or interfering with the ability of the opposing party and the court to fairly and expeditiously adjudicate the claim. “The trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders.” (5)

As a general proposition, substantive misconduct is more likely to result in an affirmed dismissal with prejudice or default than procedural misconduct, precisely because substantive misconduct more clearly and directly subverts the judicial process. The integrity of the judicial system is rarely challenged sufficiently by willful disobedience to a court order or even multiple procedural shortcomings (6) so as to warrant the ultimate sanction of dismissal, thus depriving the offending litigant of an adjudication on the merits. This distinction between substantive and procedural misconduct is in keeping with the competing considerations mentioned in Cox of “carefully balanc[ing] a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system.” Florida appellate courts have consistently reversed dismissals based on a single occurrence of disobedience to a court order or due to plaintiff’s or defendant’s one time failure to appear for deposition. (7)

Additionally, whether substantive or procedural misconduct is the basis for the sanction, the trial court must hold an evidentiary hearing before dismissing a case with prejudice, (8) and must make an express finding that the conduct forming the basis for the dismissal was willful or done in bad faith or was deliberate and in contumacious disregard of the court’s authority. (9) Appellate courts do not hesitate to reverse and remand for noncompliance with these requirements.

Substantive misconduct is and should be subject to less tolerance before dismissal with prejudice is warranted. Lying about facts central to the case, including the nature and extent of one’s own injuries, simply cannot be tolerated and, frequently, cannot be remedied by any lesser sanction than dismissal with prejudice.

In Destafano v. State Farm Mutual Automobile Insurance Co., 28 Fla. L. Weekly D1077 (Fla. 1st DCA April 28, 2003), the First DCA affirmed the dismissal with prejudice of an uninsured motorist’s claim for various false statements and omissions “on matters central to the issues in her lawsuit.” (10) Four separate incidents of dishonesty were cited: 1) Plaintiff falsely claimed to have no injuries from a prior accident; 2) she failed to reveal a subsequent accident on multiple occasions; 3) she lied about the extent of her injuries from the accident at issue; 4) she also lied about prior similar injuries. Plaintiff argued she was simply old and forgetful, but without intent to deceive. Although this case seemed to be a candidate for a lesser sanction than dismissal of the entire case, the First DCA thoughtfully rejected plaintiff’s assertions to that effect.

   While appellant here claims to have a
   poor memory due to her age, appellant
   submitted no evidence that she has any
   physical or mental problems affecting
   her memory, and appellant's deposition
   testimony revealed that she is capable
   of understanding and answering questions
   posed to her. As such, because there
   is no evidence that appellant had any
   mental incapacity, appellant's reliance
   on Simmons (11) is misplaced and
   appellant's claim that her misstatements
   should be excused as mere forgetfulness
   is without merit. (12)

The court further rejected plaintiff’s claim that the questions asked of her were vague and her incomplete answers were the result of the passage of time.

   Here, as in Morgan, appellant's denial
   of any injury from the 1992 accident did
   not result from mere oversight or forgetfulness.
   Although appellant revealed
   some facts regarding the names of her
   doctors and the existence of the accident,
   that alone does not constitute "truthful
   disclosure." See Morgan, 816 So. 2d at
   254. Likewise, appellant's attempt to
   conceal the 1999 accident does not constitute
   "truthful disclosure," and
   appellant's conflicting testimony regarding
   the extent of her injuries following
   each of her accidents suggests an intent
   to deceive. (13)

Finally, the court rejected plaintiff’s catch-all assertion that her conduct was insufficient to support the ultimate sanction of dismissal, for which she cited Jacob v. Henderson, 28 Fla. L. Weekly D286 (Fla. 2d DCA Jan.24, 2003), opinion withdrawn and superceded on rehearing in part by 28 Fla. L. Weekly D836 (Fla. 2d DCA Mar.28, 2003).

   In Jacob, the trial court dismissed the
   appellant's case based on her deposition
   testimony regarding her physical abilities,
   which was contradicted by surveillance
   videotape evidence submitted by
   the defendant. Id. The Second District
   reversed the trial court, holding that
   there was no clear and convincing evidence
   that the appellant had set into
   motion an "unconscionable scheme" to
   interfere with "the judicial system's ability
   to impartially adjudicate the matter."
   Id. Nevertheless, Jacob is distinguishable
   from the case at bar because the
   record before us demonstrates clear and
   convincing evidence of fraud, and because
   appellant has not "shown that the
   sanction imposed is unreasonable" or
   that the trial court "clearly erred in its
   interpretation of the facts." See Baker,
   765 So. 2d at 151 (citations omitted).
   Furthermore, appellant's misstatements
   were not merely about her present or
   prospective physical abilities; appellant
   also omitted from her deposition testimony
   numerous concrete, historical
   facts, such as the occurrence of the January
   1999 accident. (14)

As can be seen from the foregoing, different trial and appellate courts are going to look at similar factual scenarios and occasionally draw dissimilar conclusions. In Baker, the Second DCA did not deem plaintiff’s deliberate attempt to exaggerate her injuries and physical condition sufficiently central to the allegations of her complaint or egregious to warrant the ultimate sanction of dismissal.

Regrettably, many people do not consider lying under oath about the nature and extent of their injuries or other facts pertinent to their lawsuits to be egregious misconduct. To many, it is simply the way the game is played. “Everybody does it,” according to this questionable train of thought, “so how bad can it possibly be?” While never overtly agreeing with this premise, many trial and appellate courts find it difficult to dismiss claims with prejudice or default defendants for such behavior. There are typically two prongs to their analysis. First, although the misconduct should not go unpunished, a “lesser sanction” than dismissal will be fashioned and meted out if possible. Secondly, the jury, as trier of fact, can mete out any punishment it deems appropriate–from an adverse verdict to a reduced or enhanced verdict–in the event it determines that misconduct by a litigant has occurred.

Simply allowing the opposing party to bring the transgression to the attention of the jury is hardly a “sanction.” That is nothing more than allowing highly relevant evidence to be heard by the jury. At a minimum, the court should be able to assure the aggrieved party that the guilty party’s misconduct will not be repeated and that the guilty party will not be allowed to profit by its misconduct. One possibility is to exclude from the trial the precise damage claim or defense pertinent to the offending testimony or conduct. Another is to subject the claim or defense involved to a higher standard of proof. Rarely will the assessment of a monetary sanction be sufficient to remedy the type of significant misconduct which approaches fraud on the court.

For example, in Jacob, it would certainly appear appropriate to disallow any recovery for future pain and suffering to plaintiff, while allowing her to recover damages for past medical expenses. Similarly, the court might limit any recovery for future medical expenses to those which can be proven by “clear and convincing evidence,” that is, something more than plaintiff’s suspect testimony and the opinion of her treating physician based on plaintiff’s subjective symptoms. Additionally, the court may give a jury instruction informing the jury about the offending conduct. Although the credibility of the witnesses is and must remain within the sole province of the jury, it hardly seems offensive to that principle to have the court instruct the jury that plaintiff or defendant gave false testimony or deliberately omitted relevant information during discovery, if the trial court has in fact made that adjudication based upon clear and convincing evidence. (15) Trial courts have broad discretion to fashion such remedies and sanctions. This discretion is fully warranted where a party has been found by clear and convincing evidence to have perpetrated a fraud on the court and the court has, nevertheless, allowed the case to proceed.

In Long v. Swofford, 805 So. 2d 882 (Fla. 3d DCA 2003), plaintiff denied any preexisting back condition in connection with her negligence claim stemming from a rear end collision. Upon discovery of the preexisting condition defendant moved to dismiss the complaint for fraud. The trial court conducted a hearing; agreed that plaintiff had deliberately concealed her pre-existing back condition; and dismissed her suit with prejudice for fraud on the court. The Third DCA affirmed.

   The plaintiff's false or misleading statement
   given under oath concerning issues
   central to her case amounted to
   fraud. See Cox v. Burke, 706 So. 2d 43,
   47 (Fla. 5th DCA 1998). 

   Therefore, the trial court's decision
   to dismiss the plaintiff's claim for fraud
   was not an abuse of discretion. See
   Rosenthal v. Rodriguez, 750 So. 2d 703
   (Fla. 3d DCA 2000). (16)

The dissent argued that dismissal was too severe a sanction because the lie plaintiff told was unhelpful: “I believe it was unjustified overkill to deprive her of a valuable claim because she lied when to tell the truth about it would have done her just as much good.” (17)

According to this line of thought, clever lies should be punished more severely than stupid lies which, although embodying precisely the same intent to deceive and to deprive the court and one’s adversary of requested information, do not succeed as well as it was thought and hoped they would. In fairness, the dissent in Swofford simply did not perceive the false testimony there to be sufficiently egregious to cause the complete forfeiture of plaintiff’s right to proceed. This is a common and inevitable problem in dealing with subjective standards applied to a limitless variety of fact patterns. However one’s moral compass views the concept of “a little white lie,” there is an entire spectrum of subtle variations in the seriousness, materiality and impact of different types and instances of litigation misconduct which the court must evaluate in determining the nature of the sanction to be imposed.

The notion that “intent” must be coupled with “acts” and “bad consequences” to gauge the seriousness of the offense and the punishment is sound to a point, but has less application in cases of “substantive fraud” than “procedural misconduct.” Missing a court ordered deadline for filing a pretrial stipulation rarely, if ever, warrants dismissal with prejudice no matter how willful it is found to be. Lying under oath at deposition or trial about a fact directly bearing on liability or damages can be sufficient, in and of itself, to warrant dismissal with prejudice. In the case of such substantive fraud, the success of the fraud should play less of a role, if any role whatsoever. As noted in Cox v. Burke:

   Cox argues that the volumes of medical
   records defense counsel has found show
   that the defendants have not been hampered
   in their discovery. Apart from the
   irony of the argument that Cox should
   not be punished because she failed to
   deceive, it is impossible to know what
   defendants may not have found. The
   closer question raised by Cox is how
   material, pervasive or extreme such
   false statements or material omissions
   in discovery must be in order for the extraordinary
   measure of dismissal to be
   justified. (18)

As Cox went on to explain, the right to seek redress in a court of law is not without duties. It is as much a privilege of citizenship as a right and can be forfeited.

   The integrity of the civil litigation process
   depends on truthful disclosure of
   facts A system that depends on an
   adversary's ability to uncover falsehoods
   is doomed to failure, which is why this
   kind of conduct must be discouraged in
   the strongest possible way. Although Cox
   insists on her constitutional right to
   have her case heard, she can, by her own
   conduct, forfeit that right. This is an
   area where the trial court is and should
   be vested with discretion to fashion the
   apt remedy. While this court might have
   imposed a lesser sanction, the question
   in this case is close enough that we cannot
   declare the lower court to have
   abused its discretion. (19)

As set forth in Rosenthal v. Rodriguez, 750 So. 2d 703,704 (Fla. 3d DCA 2000):

   Courts throughout this state have repeatedly
   held "that a party who has been
   guilty of fraud or misconduct in the prosecution
   or defense of a civil proceeding
   should not be permitted to continue to
   employ the very institution it has subverted
   to achieve her ends." Metropolitan
   Dade County v. Martinsen, 736 So.
   2d 794, 795 (Fla. 3d DCA 1999) (quoting
   Hanono v. Murphy, 723 So. 2d 892, 895
   (Fla. 3d DCA 1998)); see also Cox v.
   Burke, 706 So. 2d 43, 47 (Fla. 5th DCA
   1998); O'Vahey v. Miller, 644 So. 2d 550,
   551 (Fla. 3d DCA 1994); Kornblum v.
   Schneider, 609 So. 2d 138, 139 (Fla. 4th
   DCA 1992).

What emerges from these cases, both affirming and reversing dismissals with prejudice, is that if the offending conduct is sufficiently serious and egregious to come within the definition of fraud on the court, dismissal with prejudice will rarely be reversed by an appellate court even if they believe a lesser sanction might have been available. Even the cases which phrase the issue as whether a lesser sanction is or was available are making the qualitative judgment that the offending conduct was simply not sufficiently egregious or central to the issue of liability or damages to tilt the seesaw of competing policy considerations against the right to an adjudication on the merits and in favor of dismissal or default to preserve the integrity of the judicial process.

Because the decision of the trial court is reviewed pursuant to an abuse of discretion standard, it is important to persuade the trial court of the fraudulent and willful nature of the misconduct in the first instance. Although appellate courts frequently overturn trial court decisions dismissing claims with prejudice or entering defaults (20) and occasionally reverse trial courts for refusing to do so, (21) the very nature of the abuse of discretion standard dictates that in the majority of cases, the decision of the trial court will be affirmed even if the appellate court does not agree with it. (22)

In the best of circumstances, the adversarial process embodied in civil litigation can be contentious. Hard fought litigation sometimes breeds suspicion and distrust among adversaries and their counsel. Using the word “liar” to refer to an adverse party at trial has always been one of the surest ways to incur a trial or appellate court’s wrath despite being entirely proper assuming there is record evidence to support the inference. (23) Fraud on the court requires more than name-calling. It requires proving to the court clearly and convincingly that your adversary is deliberately not being forthright with you or the court and that its refusal to do so is subverting the administration of justice in your case to your client’s severe prejudice.

Dismissal with prejudice and default should be imposed as a sanction only for the most serious misconduct. Nothing in this article is intended to suggest that every perceived lack of candor by an adverse party rises to the level of fraud on the court and should prompt a motion for dismissal. However, “fraud on the court” is the term used to encompass precisely the most serious misconduct which strikes at the heart of the judicial process. By definition, such conduct warrants the ultimate sanction when proven, as the cases cited herein require, (24) by clear and convincing evidence. A motion to dismiss the complaint with prejudice or to default defendant should not be overlooked as a means of dealing with egregious litigation misconduct. As the decisions cited herein demonstrate, dismissal with prejudice and default for fraud on the court are viable and achievable remedies in the appropriate case.

(1) Aoude v. Mobil Oil Corp., 892 F.2d 1115, 15 Fed. R. Serv. 3d 482 (1st Cir. 1989) (“Because corrupt intent knows no stylistic boundaries, fraud on the court can take many forms.”)

(2) Affirming dismissals with prejudice: Wallraff v. T.G.I. Friday’s, Inc., 470 So. 2d 732 (Fla. 5th D.C.A. 1985) (trial court did not abuse its discretion in dismissing complaint with prejudice for plaintiff’s failure to appear at scheduled deposition.); Luca v. Largo Diversified, Inc., 396 So. 2d 1228 (Fla. 2d D.C.A. 1981) (record reflected no plausible justification or excuse for former employee’s thrice occurring refusal to appear for her deposition or for her defiance of court’s order that she appear for deposition on or before set date, court would have concluded that her failure to submit to deposition was willful and that entry of default was appropriate sanction and thus entry of default judgment was proper.) Surrency v. Winn & Lovett Grocery Co., 34 So. 2d 564 (Fla. 1948) (under act relating to depositions in chancery and civil cases, defendant had right to take plaintiff’s deposition according to provisions of the Federal Rules of Civil Procedure, and trial judge did not err in dismissing suit because of plaintiff’s refusal to submit himself for questioning by defendant); reversing dismissals with prejudice: see cases cited in endnotes 6 and 7 below.

(3) The following cases, in addition to Cox v. Burke, appear to confirm that use of dismissal with prejudice and default as a sanction has increased dramatically over the past several years. Destafano v. State Farm Mutual Automobile Insurance Co., 28 Fla. L. Weekly D1077 (Fla. 1st D.C.A. April 28, 2003); Long v. Swofford, 805 So. 2d 882 (Fla. 3d D.C.A. 2003); Hogan v. Dollar Rent A Car Systems, Inc., 783 So. 2d 1211 (Fla. 4th D.C.A. 2001) (trial court’s dismissal of personal injury action was warranted because of plaintiff’s fraud regarding medical history); Morgan v. Campbell, 816 So. 2d 251 (Fla. 2d D.C.A. 2002); Cabrerizo v. Fortune International Realty, 760 So. 2d 228 (Fla. 3d D.C.A. 2000) (parties who are guilty of fraud or misconduct should not be permitted to employ the very institution they have subverted to achieve their end); Desimone v. Old Dominion Ins. Co., 740 So. 2d 1233 (Fla. 4th D.C.A. 1999) (trial court’s dismissal of action was justified because of plaintiff’s fraud during discovery); Baker v. Myers Tractor Services, Inc., 765 So. 2d 149, 25 Fla. L. Weekly D1561 (Fla. 1st D.C.A. 2000); Babe Elias Builders, Inc. v. Pernick, 765 So. 2d 119 (Fla. 3d D.C.A. 2000); Rosenthal v. Rodriguez, 750 So. 2d 703 (Fla. 3d D.C.A. 2000); Metropolitan Dade County v. Martinsen, 736 So. 2d 794 (Fla. 3d D.C.A. 1999); Hanono v. Murphy, 723 So. 2d 892, 895 (Fla. 3d D.C.A. 1998)); Savino v. Florida Drive In Theatre Management, Inc., 697 So. 2d 1011 (Fla. 4th D.C.A. 1997); Mendez v. Blanco, 665 So. 2d 1149 (Fla. 3d D.C.A. 1996).

(4) “There is little question in my mind that 25 years ago these circumstances would have given the defense lawyer a wonderful topic for cross-examination, but the case still would have proceeded to trial by jury. The courts have gradually become more willing to use the ultimate sanction of dismissal with prejudice against plaintiffs who play fast and loose with the truth. I am concerned that if judges are permitted to take cases from the jury under these circumstances, the rule should apply equally to defendants. The case law should authorize plaintiffs to obtain orders defaulting defendants on the issues of liability and comparative negligence for the same misconduct that would result in the dismissal of a plaintiffs action. I am not confident that the current case law is subjecting both sides to equal sanctions for equivalent misconduct.” Morgan v. Campbell, 816 So. 2d 251, 254 (Fla. 2d D.C.A. 2002) (Altenbernd, J. concurring).

(5) Cox, 706 So. 2d at 47.

(6) Steele v. Chapnick, 552 So. 2d 209 (Fla. 4th D.C.A. 1989) (Although plaintiff’s responses to defendants’ request for production of documents, interrogatories, as well as his answers on deposition, were less than complete, plaintiff substantially complied with defendants’ discovery, and there was no willful, contumacious disregard of court order that would have warranted dismissal with prejudice.)

(7) Wallraff v. T.G.I Friday’s, Inc., 490 So. 2d 50 (Fla.1986) (Trial court’s dismissal with prejudice for failure of plaintiff to attend deposition was unreasonable absent determination that failure was willful or done in bad faith.); Santuoso v. McGrath & Associates, Inc., 385 So. 2d 112 (Fla. 3d D.C.A. 1980 (Although defendant in civil proceeding had notice that he was to resubmit himself for deposition, sanction of default imposed against defendant for failure to resubmit to deposition, in effect determining liability in favor of plaintiff, was excessive and amounted to an abuse of discretion where defendant had appeared for initial deposition, case had not been set for trial, and order entering default did not recite that defendant’s failure to submit to discovery was willful.) McNamara v. Bradley Realty, Inc., 504 So. 2d 814 (Fla. 4th D.C.A. 1987) (Defendants’ nonattendance at scheduled depositions did not warrant severe sanctions of striking defendants’ pleadings and entering final judgment against defendants; although there was evidence of frustration or delay, which would justify lesser sanctions, case had not yet been set for trial, and defendants had been visiting ill parent in South Africa during scheduled depositions.); Townsend v. Feinberg, 659 So. 2d 1218 (Fla. 4th D.C.A. 1995) (Dismissal with prejudice was improper where nothing in record indicated personal injury plaintiff willfully failed to comply with court’s order to attend independent medical examination and deposition; plaintiff’s affidavit on motion for rehearing stated that her failure to comply with order was inadvertent and that her attorney would not communicate with her, did not notify her of examination or hearing date, and would not transfer file to new firm.). Compare European X-Ray Distributors of America, Inc. v. Saab-Scania Aktiebolag, 414 So. 2d 4 (Fla. 3d D.C.A. 1982) (repeated failure of corporate defendant’s president to appear for deposition, after being so directed by trial court, was a flagrant violation of discovery rules and warranted order striking corporate defendant’s pleadings and entering default judgment); Levine v. Del American Properties, Inc., 642 So. 2d 32 (Fla. 5th D.C.A. 1994) (Trial court did not abuse its discretion in ordering default as sanction for not complying with discovery orders, where defendant received notices, but refused to attend discovery depositions, and order detailed with particularity disruptive and contumacious behavior of defendant as reason for sanction.)

(8) Lazare v. Weiss, 437 So. 2d 211 (Fla. 3d D.C.A. 1983) (Extreme sanction of striking defendant’s answer and entering a default against him could not be imposed without first having afforded defendant an opportunity to be heard on the issue of whether his failure to appear at scheduled depositions was willful.); Austin v. Papol, 464 So. 2d 1338 (Fla. 2d D.C.A. 1985) (Trial court, which dismissed plaintiff’s complaint with prejudice and entered default judgment against him on defendant’s counterclaim, erred in imposing such extreme sanctions without first affording plaintiff opportunity to be heard on question whether his failure to appear at scheduled depositions was willful or in bad faith.)

(9) Trupei v. City of Lighthouse Point, 506 So. 2d 19 (Fla. 4th D.C.A. 1987) (Before striking party’s pleadings and entering default for failure to appear for deposition, trial court must make finding that nonappearance was willful or done in bad faith or was deliberate and in contumacious disregard of court’s authority.); In re Forfeiture of Twenty Thousand Nine Hundred Dollars ($20,900) US. Currency, 539 So. 2d 14 (Fla. 4th D.C.A. 1989) (Trial court was required to make finding or recital that defendant’s failure to appear for deposition was willful or contumacious, and prejudiced city- plaintiff prior to striking defendant’s pleadings and entering final order.); Belflower v. Cushman & Wakefield of Florida, Inc., 510 So. 2d 1130 (Fla. 2d D.C.A. 1987) (Although trial court has discretion to impose sanctions upon party who, after being served with proper notice, fails to appear for his own deposition, discovery sanction as severe as entry of default should only be imposed in extreme circumstances such as where defaulted party’s conduct reflects bad faith, willful disregard, gross indifference, deliberate callousness, or deliberate and contumacious disregard of trial court’s authority.); J.E.I. Airlines, Inc. v. Britton, Cassel, Schantz & Schatzman, P.A., 605 So. 2d 1009 (Fla. 4th D.C.A. 1992) (Order dismissing case as sanction due to plaintiff’s failure to submit to deposition was defective, where order failed to find that plaintiff’s conduct demonstrated deliberate and contumacious disregard of court’s authority or evidenced willful failure to submit to discovery.)

(10) Destafano, 28 Fla. L. Weekly at 1078.

(11) Simmons v. Henderson, 745 So. 2d 1031 (Fla. 2d D.C.A. 1999) (Misstatements made by a motorist concerning her employment, income she had received since accident, and her involvement in previous automobile accidents did not result in fraud perpetrated on the court that could justify dismissal of motorist’s suit, where evidence revealed motorist to be a nervous person on various medications with a below-average IQ who was confused by the questions propounded to her in the 67-page pretrial deposition.)

(12) Destafano, 28 Fla. L. Weekly at 1078.

(13) Id.

(14) Id.

(15) See Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th D.C.A. 1998) (“The requisite fraud on the court occurs where ‘it can be demonstrated, clearly and convincingly, that a party….'” [emphasis added]). See also Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483 (Fla. 1999) (“Although it is not defined in the statute, this Court defines the standard ‘clear and convincing evidence’ as ‘an intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.’ In re Adoption of Baby E.A.W., 658 So. 2d 961,967 (Fla. 1995)”).

(16) Swofford, 805 So. 2d at 884.

(17) Id.

(18) Id.

(19) Id.

(20) See cases cited in endnote 7.

(21) Metropolitan Dade County v. Martinsen, 736 So. 2d 794, (Fla. 3d D.C.A. 1999) (Judgment in favor of plaintiff reversed and remanded for entry of judgment dismissing complaint with prejudice for fraud on the court. Trial court abused its discretion in not granting motion for dismissal with prejudice.)

(22) Rosenthal v. Rodriguez, 750 So. 2d 703 (Fla. 3d D.C.A. 2000) (“Based upon the repeated and pervasive false statements made by the appellant/plaintiff, Evelina Rosenthal, on matters central to her personal injuries action against the appellee, Eugenio Rodriguez, throughout the course of discovery and trial, we cannot conclude that the trial court abused its discretion when it exercised its inherent authority to strike her pleadings and dismiss her cause with prejudice.”).

(23) George v. Mann, 622 So. 2d 151 (Fla. 3d D.C.A. 1993); Kendall Skating Centers, Inc. v. Martin, 448 So. 2d 1137 (Fla. 3d D.C.A. 1984) (reversal required where plaintiff’s closing argument characterized defendants as despicable and asserted that both they and their lawyers were liars); but see Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000) (“First, it is not improper for counsel to state during closing argument that a witness ‘lied’ or is a ‘liar,’ provided such characterizations are supported by the record. See Craig v. State, 510 So. 2d 857,865 (Fla. 1987) (finding that even though intemperate, prosecutor’s closing argument remarks characterizing defendant’s testimony as untruthful and the defendant himself as being a ‘liar’ did not exceed the bounds of proper argument in view of the record evidence); Forman, 671 So. 2d at 874 (refusing to find improper counsel’s closing argument characterization of plaintiff as being a “liar” where “there was an ample evidentiary basis on which to dispute the credibility of the plaintiff’); see also Goutis v. Express Transport, Inc., 699 So. 2d 757, 763-64 (Fla. 4th D.C.A. 1997) (agreeing with Forman). If the evidence supports such a characterization, counsel is not impermissibly stating a personal opinion about the credibility of a witness, but is instead submitting to the jury a conclusion that reasonably may be drawn from the evidence.” The court expressly disapproved King v. National Security Fire & Casualty Co., 656 So. 2d 1335, 1337 (Fla. 4th D.C.A. 1995), to the extent that it stands for the proposition that counsel may not use the terms “liar” or “lied” regarding a witness when there is record support to question the witness’s credibility.)

(24) Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th D.C.A. 1998).

John T. Kolinski received his law degree, cum laude, from the University of Michigan Law School in 1975. He simultaneously received his B.A. and M.A. in English literature, summa cum laude, from the University of Detroit. Mr. Kolinski practices with Shutts & Bowen, LLP, in the firm’s litigation department, handling a variety of cases including construction litigation, creditor’s rights, disability insurance, contract disputes, and personal injury claims.

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