We are fans of Florida Law Weekly as a reliable print and email source of new case law. Volume 35, Number 20 (May 21, 2010) presents two cases involving Motions to Dismiss for Fraud, suggesting that (a) an evidentiary hearing is required and (b) the motion is limited in application.
In Dany Gilbert v. Eckerd Corporation of Florida, Inc., the Fourth District (Bowman, Farmer, and Hazouri) considered a personal injury case where the Plaintiff claimed lost wages in excess of $420k premised, in part, on a brief two month stint at a concrete company. During discovery, however, the Plaintiff’s husband and several representatives of the company denied she worked there. The Plaintiff, in turn, produced two checks and her tax returns. In response, a representative of the company indicated that the money was for the Plaintiff’s husband and that the payment was for her to run through her business — not because she was an employee.
The Panel held that there was “no rule, statute or case” requiring an evidentiary hearing but that it was a “better practice” so the trial court could make specific findings.
In Ruby Hair v. Richard Morton, the Third District (Ramirez, Gersten, and Lagoa) held that inconsistencies, non-disclosures, and even falseness were better addressed in cross-examination and discovery sanctions than dismissal for fraud — and likewise determined that an evidentiary hearing was needed.
BOTH cases reversed the order of dismissal and noted (a) a motion to dismiss for fraud requires clear and convincing evidence, (b) dismissal for fraud is an “extreme” sanction, (c) proof required (clearly and convincingly) is that a party sentiently set in motion an unconscionable scheme calculated to interfere with justice, and (d) it must go to the core issues.
The Fourth DCA’s opinion suggested the standard of review is a “narrowed” abuse of discretion standard; the Third DCA indicated that, in the first place, trial courts should be granting these sparingly and cautiously.