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Joshua Bosque v. Eric Rivera, No. 5D12-4324(5th DCA)

The 5th DCA in Bosque ruled there was insufficient evidence to support dismissal of the plaintiff’s personal injury suit for fraud on the court. The trial court dismissed the suit for fraud on the court, after the plaintiff stated in an interrogatory and at deposition that he had no prior accidents, while a document produced in discovery and a defense investigation proved that the plaintiff was a passenger in previous single car accident. The case was dismissed after a non-evidentiary hearing, in which the trial court found that the plaintiff’s non-disclosure had “eviscerated the defense’s ability to provide a defense and does rise to a scheme to defraud.” The 5th DCA noted that its review of a dismissal for fraud on the court under an abuse of discretion standard is somewhat narrowed to take into account that the dismissal must be established by clear and convincing evidence. The court further noted that the appellate deference is further narrowed when the trial court does not receive live testimony. The 5th DCA noted, among other things, that dismissal is an extraordinary remedy, and should be utilized only when a deliberate scheme was put in place to subvert the judicial process. The court further noted that poor recollection, dissemblance, even lying, can be well managed through cross-examination. The 5th DCA found that the record did not establish, by clear and convincing evidence, that the plaintiff engaged in a deliberate scheme to subvert the judicial process by failing to disclose his involvement in the prior car accident. While his deposition answer was false, he did produce a document reflecting that he had, in fact, been in a previous accident.

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