Fraud on the court as a basis for dismissal with prejudice or default: an old remedy has new teeth.

• Author: Kolinski, John T.

That cheaters should not be allowed to prosper has long been central to the moral fabric of our society and one of the underpinnings of our legal system. Sanctions, in a wide variety of shapes, attempting to encompass the virtually limitless ways litigants manage to misbehave (1) have always been part and parcel of our legal system. Dismissal with prejudice has long been available as the ultimate civil sanction against litigation misconduct, but is often bypassed in the belief that such efforts rarely succeed at the trial court level and are frequently reversed on appeal when they do. In the past this sentiment was understandable. Older appellate decisions upholding dismissals with prejudice for "fraud on the court" were decisively out-numbered by decisions reversing such dismissals as being too severe. (2)

Recent decisions, including Destafano v. State Farm Mutual Automobile Insurance Co., 28 Fla. L. Weekly D1077 (Fla. 1st DCA April 28, 2003), and Long v. Swofford, 805 So. 2d 882 (Fla. 3d DCA 2003), have been more favorably disposed to affirm dismissals with prejudice for serious, palpable "fraud on the court." Of course, therein lies the rub. What precisely is "fraud on the court"? When is conduct sufficiently egregious to distinguish it from arguable forgetfulness or misunderstanding? How much bad conduct is enough? Does one terrible and indisputable lie about a fact central to the case suffice? What about a whole series of lies which make it difficult for the opposing party to ferret out the true facts but, in the end, fail to succeed only because of the diligence and perseverance of opposing counsel, or because the offending litigant, despite being willful, was inept? What if the misconduct is entirely procedural, involving repeated deliberate attempts to obstruct discovery by failing to comply with court orders? There are no simple answers to these questions, nor can there be. Each case must be assessed and adjudicated according to its own unique facts.

The basic standards governing fraud on the court are reasonably straightforward. As set forth in Cox v. Burke, 706 So. 2d 43, 47 (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).... The 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, or where a party refuses to comply with court orders. Kornblum v. Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992). Note that the evidence necessary to support a finding of fraud on the court must be "clear and convincing," a higher burden than a mere "preponderance of the evidence." The foregoing blueprint for evaluating fraud on the court has not changed much over the years. What has changed is the increased willingness of trial courts to impose the ultimate sanction of dismissal with prejudice for plaintiffs and default for defendants, together with the increased willingness of appellate courts to affirm such dismissals and defaults pursuant to the applicable "abuse of discretion" standard of review. (3)

Judge Altenbernd, while recognizing this trend, has expressed concern that the ultimate sanction is employed more readily against plaintiffs than defendants. (4) Whatever the empirical data may reveal about the proportion of plaintiffs versus defendants subjected to the ultimate sanction for fraud on the court, nothing in the elements of fraud on the court or its implementation tilts the playing field in favor of defendants. A defendant's fraud on the court is plainly no less worthy of censure and sanction than a plaintiff's and the case law makes no distinction between the two.

Aoude v. Mobil Oil, 892 F.2d 1115, 1118 (1st Cir. 1989), on which Cox heavily relied, described the appellate court's role in applying the abuse of discretion standard of review:

While broad, the trial court's discretion is not unlimited. The [trial] judge must consider the proper mix of factors and juxtapose them reasonably. "Abuse occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them." Independent Oil and Chemical Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988); see also Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988) (to warrant reversal for abuse of discretion, it must "plainly appear[] that the court below committed a meaningful error in judgment"). As reiterated in Baker v. Myers Tractor Services, Inc., 765 So. 2d 149, (Fla. 1st DCA 2000):

We review a trial court's imposition of sanctions under an abuse of discretion standard of review. See Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983); Tramel v. Bass, 672 So. 2d 78, 82-83 (Fla. 1st DCA 1996). As the Mercer court explained: "[T]o justify reversal, it would have to be shown on appeal that the trial court clearly erred in its interpretation of the facts and the use of its judgment and not merely that the court, or another fact-finder, might have made a different factual determination." Fraud on the court as described in Cox typically refers to substantive, not procedural, misconduct--although the line between the two can be blurry. Cox makes clear that the sanction of dismissal with prejudice or default is available for both substantive and procedural misconduct. That is, in addition to encompassing false testimony and information about the facts of the case more conventionally considered to be fraud on the court, the sanction is also proper for repeated refusals to comply with court orders or otherwise obstructing or interfering with the ability of the opposing party and the court to fairly and expeditiously adjudicate the claim. "The 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, or where a party refuses to comply with court orders." (5)

As a general proposition, substantive misconduct is more likely to result in an affirmed dismissal with prejudice or default than procedural misconduct, precisely because substantive misconduct more clearly and directly subverts the judicial process. The integrity of the judicial system is rarely challenged sufficiently by willful disobedience to a court order or even multiple procedural shortcomings (6) so as to warrant the ultimate sanction of dismissal, thus depriving the offending litigant of an adjudication on the merits. This distinction between substantive and procedural misconduct is in keeping with the competing considerations mentioned in Cox of "carefully balanc[ing] a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system." Florida appellate courts have consistently reversed dismissals based on a single occurrence of disobedience to a court order or due to plaintiff's or defendant's one time failure to appear for deposition. (7)

Additionally, whether substantive or procedural misconduct is the basis for the sanction, the trial court must hold an evidentiary hearing before dismissing a case with prejudice, (8) and must make an express finding that the conduct forming the basis for the dismissal was willful or done in bad faith or was deliberate and in contumacious disregard of the court's authority. (9) Appellate courts do not hesitate to reverse and remand for noncompliance with these requirements.

Substantive misconduct is and should be subject to less tolerance before dismissal with prejudice is warranted. Lying about facts central to the case, including the nature and extent of one's own injuries, simply cannot be tolerated and, frequently, cannot be remedied by any...