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Posted on 11.04.08 11:13AM under Legal Precedent, May, 2008
Francisco Ibarra, Appellant, v. Mario E. Izaguirre and Continucare Corporation, Appellees.
District Court of Appeal of Florida, Third District.
Opinion filed May 21, 2008.
Francisco Ibarra appeals the trial court’s final order dismissing his complaint with prejudice for perjury and perpetration of fraud upon the court. Dismissal with prejudice is unreasonably harsh given the facts of the case, and we therefore reverse the trial court’s order.
A trial court has the authority to grant a motion to dismiss an action upon a finding of fraud by a party. Rios v. Moore, 902 So. 2d 181, 183 (Fla. 3d DCA 2005). However, this power should be used cautiously and sparingly and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrongdoing. Id. Additionally, fraud must be proven by clear and convincing evidence. Howard v. Risch, 959 So. 2d 308, 312 (Fla. 2d DCA 2007).
Clear and convincing evidence of fraud is not present in this case. The slip at the bank never resulted in a formal claim with retained counsel. Ibarra’s answers can reasonably be viewed as a misinterpretation. The alleged inconsistencies can be better handled by impeachment and/or vigorous cross examination. Dismissal with prejudice is unreasonable and an abuse of discretion based on the facts of this case.
This ruling is not a license to lie. In cases where fraud can be proven by clear and convincing evidence, it is clearly within the trial court’s discretion to punish the offending party by dismissal. The facts of this case, however, do not rise to this level. The punishment of dismissal does not fit the crime.
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