FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Putnam County, Scott C. DuPont,
Kevin Sharbaugh, of Keyser & Sharbaugh, P.A.,
Interlachen, for Appellant.
Zachery Lucas Keller, of Keller Legal, Palatka, for Appellee,
Dennis E. Dixon.
Appearance for Appellee, Tina M. Niehaus.
ON APPELLEE'S MOTION FOR CLARIFICATION
Appellee, Dennis Dixon's, motion for
clarification of our December 29, 2017 opinion.
Nevertheless, on our own motion and unrelated to any matters
raised in Dixon's motion for clarification, we withdraw
our prior opinion and issue the following opinion in its
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.
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 his retained expert. The trial court
held an evidentiary hearing on this motion and rendered the
final order now under review.
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.
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" evidentiary
burden and the gravity of the sanction. See
Gautreaux, 112 So.3d at 149 (quoting Suarez v.
Benihana Nat'l of Fla. Corp., 88 So.3d 349, 352
(Fla. 3d DCA 2012)); see also Jimenez v. Ortega, 179
So.3d 483, 487 (Fla. 5th DCA 2015) ("[A] more stringent
abuse of discretion standard is appropriate [in reviewing a
dismissal for fraud upon the court] because dismissal is an
extreme remedy." (quoting Jacob v. Henderson,
840 So.2d 1167, 1169 (Fla. 2d DCA 2003))).
first ground justifying dismissal for fraud upon the court,
the trial court found that Niehaus did not disclose that he
had suffered injuries from a car accident ten months earlier.
The court erred in this finding because Niehaus did, in fact,
provide pertinent information and records about this accident
when requested, but had not disclosed this information
earlier because Dixon admittedly did not ask Niehaus about
prior injuries or accidents in his initial discovery. Niehaus
was under no obligation to voluntarily provide records or
other information prior to being asked by Dixon.
eighth ground found by the court for dismissal, the court
concluded that Niehaus's testimony at the hearing on his
motion was fraudulent. Niehaus was presented with two
photographs taken on different days that Dixon argued
evidenced Niehaus's ability to work on airplanes,
allegedly contradicting Niehaus's claim that he could no
longer work on planes. In response, Niehaus testified that
one photo showed him working on a plane and the second
appeared to show that he was sitting on a stool taking a
break but that he "probably" had been working on a
plane. Niehaus further explained that he was still physically
able to work on planes; however, due to problems with his
memory, he would not be able to pursue obtaining a license in
airplane maintenance but could work on airplanes if
supervised. The court commented that the second photo
appeared to show Niehaus working on a plane, to which Niehaus
testified that it looked as if he was "looking for a
screw or something in a screw can." The court then
concluded that Niehaus had changed his testimony in response
to the court's comment and that this "false
testimony" constituted fraud upon the court under the
standard described in Cox. We disagree. Assuming
that Niehaus's comment in response to the trial court was
a "change" in testimony, we find that the court
abused its discretion as this testimony did not clearly and
convincingly demonstrate fraud.
although we have concern about whether some of the remaining
six grounds found by the court in its final order would
individually qualify as evidence of fraud upon the court, we
believe that the analysis of whether these six grounds
cumulatively qualify for the extraordinary remedy of
dismissal with prejudice is initially best left to the trial
court. In doing so, we are mindful of the trial court's
finding in its order that any one of the false statements
made by Niehaus would warrant dismissal. Having reviewed the
record, we disagree with the trial court that ...