Howard v. Risch

959 So. 2d 308, 2007 WL 1373781
CourtDistrict Court of Appeal of Florida
DecidedMay 11, 2007
Docket2D06-2572
StatusPublished
Cited by15 cases

This text of 959 So. 2d 308 (Howard v. Risch) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howard v. Risch, 959 So. 2d 308, 2007 WL 1373781 (Fla. Ct. App. 2007).

Opinion

959 So.2d 308 (2007)

Theron D. HOWARD, Jr., individually and as guardian of Elizabeth Howard, Anthony Howard, and Thomas Howard, Appellants,
v.
Steven Vern RISCH, JR Distributors, and Michael Workman, Appellees.

No. 2D06-2572.

District Court of Appeal of Florida, Second District.

May 11, 2007.
Rehearing Denied July 6, 2007.

*309 James R. Wilson of Johnson, Auvil, Brock & Wilson, P.A., Dade City, for Appellant.

Christopher B. Hopkins and Allison S. Miller-Bernstein of Cole, Scott & Kissane, P.A., West Palm Beach, for Appellees Steven Vern Risch and JR Distributors.

Beth M. Gordon of Parrillo, Weiss & O'Halloran, Boca Raton, for Appellee Michael Workman.

ALTENBERND, Judge.

Theron D. Howard, Jr., individually and for his children, appeals an order dismissing an automobile negligence action involving two separate accidents. The trial court dismissed the lawsuit as a sanction, stating that it had found by clear and convincing evidence that Mr. Howard had "evidenced a deliberate and purposeful attempt to deceive the Court." We reverse. The minimal amount of admissible evidence before the court did not authorize the court to dismiss this action as a sanction.

On October 28, 2003, Mr. Howard was driving his car in Zephyrhills, Florida, when he was struck by a car owned by JR Distributors and operated by Steven Vern Risch. Mr. Howard claims that Mr. Risch changed lanes or turned left from the right lane of a one-way street, running into his right front fender. Although the damage to his car was not extensive, his wife was taken to the emergency room from the *310 scene of the accident and he obtained treatment at the emergency room a few hours later. He claimed that the accident caused him to have pain in his lower back, in his right leg, in his neck, and in his arm.

A few weeks later, on December 6, 2003, Mr. Howard was again driving his car when Michael Workman allegedly failed to stop for a stop sign and ran into his car. Mr. Howard claimed that this accident aggravated his injuries from the first accident.

The record does not contain much medical evidence, but it appears that Mr. Howard has had surgery that he maintains is related to these accidents. Mr. Howard amended his complaint to include claims on behalf of his children, alleging that Mr. Howard's significant permanent injuries resulted in a permanent total disability for which the children are entitled to a monetary recovery. See § 768.0415, Fla. Stat. (2003).

Mr. Howard filed his lawsuit in May 2005. The defendants' served standard interrogatories on him, which he answered in October 2005. His deposition was taken in January 2006. Thereafter, JR Distributors and Mr. Risch sought dismissal of the lawsuit, maintaining that Mr. Howard "perpetrat[ed] a fraud upon the court" by failing to disclose his criminal history in this discovery and by failing to disclose fully his medical history. Mr. Howard filed an affidavit in opposition to the motion, averring that any omission on his part was not intended to defraud the parties or the court and was merely a result of poor memory or confusion.

The trial court held a hearing at which JR Distributors and Mr. Risch presented the answers to interrogatories, the deposition transcript, and some records they received in discovery that appeared to contradict some of the answers Mr. Howard gave. Mr. Workman's counsel appeared at the hearing and sought to join in the motion. No further evidence was presented. Nevertheless, the trial court dismissed the lawsuit, concluding that Mr. Howard's responses to discovery constituted a fraud upon the court.

Mr. Howard appeals the order dismissing his action, arguing that the limited evidence before the court did not permit the dismissal of his claim on the grounds of fraud. We agree.

There is no question that a trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court. See Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) (citing Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992)). Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances. Id. (citing Bird v. Hardrives of Delray, Inc., 644 So.2d 89, 90 (Fla. 4th DCA 1994)). When examining an order dismissing a lawsuit for fraud during the discovery process, this court applies an abuse of discretion standard that is somewhat "narrowed." See Jacob v. Henderson, 840 So.2d 1167, 1168-69 (Fla. 2d DCA 2003).

In Jacob, 840 So.2d at 1169, this court adopted the approach set forth by the Fifth District in Cox, 706 So.2d 43, to assess whether dismissal is merited based upon evidence of a plaintiff's fraud:

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 *311 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 factors" and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117-18. Because "dismissal sounds the `death knell of the lawsuit,' courts must reserve such strong medicine for instances where the defaulting party's misconduct is correspondingly egregious." Id. at 1118.

Cox, 706 So.2d at 46; see also Laschke v. R.J. Reynolds Tobacco Co., 872 So.2d 344, 346 (Fla. 2d DCA 2004). Generally, unless it appears that the process of trial has itself been subverted, factual inconsistencies or even false statements are well managed through the use of impeachment at trial or other traditional discovery sanctions, not through dismissal of a possibly meritorious claim. See Ruiz v. City of Orlando, 859 So.2d 574, 576 (Fla. 5th DCA 2003).

In light of these principles, we examine the two areas in which the defendants alleged Mr. Howard's discovery responses amounted to fraud: The responses regarding Mr. Howard's criminal history and the responses regarding his past injuries or accidents.

I. THE CRIMINAL HISTORY

Mr. Howard was born in June 1970. When he was fifteen or sixteen years old, he had a sexual relationship with a girl under the age of sixteen. This apparently occurred in 1986. He was not charged for these events until 1989, when he was nineteen years old. In November 1989, he pleaded nolo contendere to lewd and lascivious conduct and two counts of handling and fondling. The trial court withheld adjudication and placed him on two years' community control, followed by one-year of probation.

In January 1992, Mr. Howard was charged with a violation of his probation because he had sex with a girl older than sixteen, but younger than eighteen. New charges were also filed for this event, but Mr. Howard was found not guilty by a jury in the new case. Nevertheless, the trial court found Mr. Howard had violated the terms of his probation in the earlier case. The court entered an adjudication of guilt and continued Mr. Howard's probation for one more year.

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959 So. 2d 308, 2007 WL 1373781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-risch-fladistctapp-2007.