final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 15-26022, Abby Cynamon, Judge.
B. Pakula (Pembroke Pines); Perry & Neblett, P.A., and
David A. Neblett and James M. Mahaffey, III, for appellant.
Bressler, Amery & Ross, P.C., and Hope C. Zelinger and
Nicole S. Houman (Fort Lauderdale), for appellee.
SALTER, LOGUE and SCALES, JJ.
Perez ("Ms. Perez"), the insured under a
homeowner's insurance policy issued by SafePoint
Insurance Company ("SafePoint"), appeals a final
order of dismissal of her circuit court lawsuit against
SafePoint. The order of dismissal concluded that Ms. Perez
had perpetrated a fraud on the court. We vacate the order and
remand the case for further proceedings based on the
particular features of this record and on the analysis which
Perez alleged that she sustained water damage from a roof
leak caused by wind on February 7, 2015. She submitted an
estimate of $23, 089.47 for the repairs. SafePoint
investigated the claim and determined that the damages were
not covered, as damages caused by rain are covered only if
"a covered peril first damages the building causing an
opening in a roof or wall and the rain . . . enters through
November 2015, Ms. Perez filed the lawsuit against SafePoint
for its failure to pay her claim. SafePoint took her
deposition in July 2016 and moved for final summary judgment
in January 2017. Ms. Perez's counsel in the trial court
(the firm of Perry & Neblett, P.A.) filed a lengthy
affidavit signed by Ms. Perez, in opposition to the motion,
and a similar affidavit signed by Ms. Perez's daughter
Emily. These extraordinary affidavits exude certainty
regarding the fact, date, and cause of the loss, as well as
commentary regarding SafePoint's engineering expert's
report and deposition testimony.
Perez's affidavit also included statements reflecting
reliance on her public adjuster's detailed inspection and
report to her on causation of the water leaks, and a
paragraph swearing under oath that "I believe that Perry
& Neblett, P.A., David Avellar Neblett, and James M.
Mahaffey III are some of the top attorneys in the field in
the country regarding litigation of insurance matters and I
understand that David Avellar Neblett is Board
Perez testified in her initial deposition in 2016 that she
had diabetes for years, and that she had many problems
affecting her memory. Her doctor gave her "something for
the memory," and she took that medication for more than
a year, but then the doctor advised her to stop taking it.
after the affidavits of Ms. Perez and her daughter were filed
in opposition to SafePoint's motion for summary judgment,
SafePoint moved to (1) strike the affidavits, and (2) dismiss
Ms. Perez's lawsuit for fraud on the court. The trial
court heard the latter motion in February 2018 and followed
up with an evidentiary hearing the next month. Ms. Perez
testified at the hearing. She did not know the wind speed on
the claimed date of loss; she did not know "what the
miles per hour threshold is for that it would take for wind
to cause damage to a roof;" and she did not know what it
means "to be board certified as an attorney." When
it came to the date of loss, she answered "I thought it
was 2014, but then afterwards it was
examination elicited Ms. Perez's testimony that she first
discovered the loss by discovering a stain in the closet and
wet clothing, with water running down the wall. She had been
asked in her 2016 deposition if she had seen "any water
actually dripping or coming into your home," and she
said "no." She testified that she had never been up
on her roof, and that she had no personal knowledge
"with [her] own eyes as to the condition of [her]
roof." But she also remembered that "somebody went
on the roof and told me the roof was damaged." At the
in-court hearing, Ms. Perez was 83 years old. She testified
that she took "many" medications and had
"many" memory issues.
the hearing, the trial court granted SafePoint's motion
to dismiss the case for fraud on the court and denied Ms.