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Jose A. Guillen v. Mai So Vang, et al., Case No. 5D13-417 (5th DCA)

In Guillen, the trial court entered a final judgment of dismissal with prejudice against the plaintiff, who had been injured in an automobile accident, finding that the plaintiff had perpetrated a fraud on the court by performing activities in a surveillance DVD which he had allegedly claimed he could not perform in his deposition. On appeal, the Fifth DCA ruled that the surveillance DVD did not constitute clear and convincing evidence that the plaintiff had “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.” The Court found that discrepancies between the plaintiff’s testimony and the surveillance DVD would be best resolved by a jury. The Court quoted a prior opinion stating “[m]isconduct that falls short of the rigors of this test, including inconsistency, nondisclosure, poor recollection, dissemblance and even lying, is insufficient to support a dismissal for fraud, and, in many cases, may be well-managed and best resolved by bringing the issue to the jury’s attention through cross-examination.”

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