Diaz v. Home Depot USA, Inc.

137 So. 3d 1195, 2014 WL 1493553, 2014 Fla. App. LEXIS 5540

• Court: District Court of Appeal of Florida
• Decided: April 16, 2014
• Docket: No. 3D13-1024
• Status: Published

Opinion

SCALES, J.

Appellant, Eileen Diaz, appeals from an order dismissing her case with prejudice on the basis of fraud on the court.

For procedural reasons, we remand for an evidentiary hearing. See Medina v. Fla. E. Coast Ry., L.L.C., 866 So.2d 89, 90 (Fla. 3d DCA 2004) (stating dismissal as a sanction should be employed only after a plaintiff has been given fair notice and an opportunity to be heard and reversing where the trial court did not grant the plaintiffs request for an evidentiary hearing); Sklandis v. Walgreen Co., 832 So.2d 942, 942 (Fla. 2d DCA 2002) (“The plaintiff is entitled to fair notice and an opportunity to be heard, prior to any order being entered which would dismiss the case on the basis of fraud and perjury.”). We express no opinion on the merits of the motion or any sanction which ultimately may be imposed.

Reversed and remanded.