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,


                        Miguel Rogelio Gomez,

     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.


     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

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.

                             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

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

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


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

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.


840 So. 2d 1167

, 1170 (Fla. 2d DCA 2003)).

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

deliberation, we are constrained to conclude the trial court abused its

discretion in overturning the verdict and dismissing the case.

     Reversed and remanded.


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