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Jacob v. Henderson3/28/2003
Upon consideration of Appellee's motion for rehearing, clarification, and certification filed on February 11, 2003, it is
ORDERED that the motion for rehearing is granted to the extent that the opinion dated January 24, 2003, is withdrawn and the attached opinion is substituted therefor. The motion is otherwise denied. No further motions for rehearing will be entertained in this appeal.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
Wilma Jacob and her husband Manuel Jacob appeal the trial court order that dismissed, with prejudice, their personal injury action against Cal Henderson, as sheriff of Hillsborough County. The trial court ruled that sworn deposition testimony of Mrs. Jacob, when compared to a surveillance video, constituted fraud on the court justifying dismissal with prejudice. We conclude dismissal with prejudice was too harsh a sanction and thus an abuse of discretion. Therefore, we reverse and remand for further proceedings.
Mrs. Jacob alleged that, while a pedestrian, she was struck in the arm by the side-view mirror of a patrol car driven by a Hillsborough County deputy sheriff. At trial, Mrs. Jacob presented evidence that she sustained a severely fractured right arm resulting in nerve damage, continuing partial loss of function, and pain in the arm and hand caused by Reflex Sympathetic Dystrophy. The jury evaluated Mrs. Jacob's damages to be $235,000 and assessed fault at 53% to Mrs. Jacob and 47% to the Sheriff. For reasons not relevant in this appeal, both parties moved for a new trial which the trial court granted.
Before the new trial, the Sheriff arranged for surveillance videos to be made of Mrs. Jacob. After securing the surveillance videos, the Sheriff scheduled Mrs. Jacob's deposition. At this deposition Mrs. Jacob was asked a number of questions about her ability to perform certain tasks that the Sheriff knew were performed on the videos. Mrs. Jacob denied being able to perform a number of the same tasks that were demonstrated on the videos. The trial court viewed the videotape and reviewed the deposition testimony and found the discrepancies constituted fraud on the court and ordered the case dismissed with prejudice. The trial court found most telling her denial of the ability to close a car door with her right hand and to sweep her driveway, which the videotape displayed her doing.
While we apply the abuse of discretion standard, Morgan v. Campbell, 816 So. 2d 251, 253 (Fla. 2d DCA 2002), case law has narrowed a trial court's discretion in cases involving dismissal for fraud, Young v. Curgil, 358 So. 2d 58, 59 (Fla. 3d DCA 1978) (stating that trial court's power to dismiss a case based on fraud "should be cautiously and sparingly exercised and only on the most blatant showing of fraud, pretense, collusion or other similar wrongdoing"); see also Tri Star Inv., Inc. v. Miele, 407 So. 2d 292, 293 (Fla. 2d DCA 1981) (same). A more stringent abuse of discretion standard is appropriate because dismissal is an extreme remedy. The test we are to apply is set out most succinctly by Chief Judge Griffin in Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998):
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). When reviewing a case for fraud, the court should "consider the proper mix of
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