          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2877
                 _____________________________

EDWARD WALLACE,

    Appellant,

    v.

TINA KELDIE,

    Appellee.
                 _____________________________

On appeal from the Circuit Court for Okaloosa County.
Terrance R. Ketchel, Judge.

                          June 13, 2018

WETHERELL, J.

     Appellant, the plaintiff below, appeals the order dismissing
his personal injury suit against Appellee with prejudice for fraud
on the court. We find no abuse of discretion in the dismissal of the
suit because the record supports the trial court’s finding that
Appellant fraudulently concealed his history of chronic low back
pain by falsely testifying about his medical history during his
deposition. Accordingly, we affirm the dismissal order.

                                 I

    On two separate occasions in May 2014, Appellant was riding
in a car owned by Appellee, his “fiancée,” 1 when the car was

    1  Although Appellant referred to Appellee as his fiancée, he
explained that they are not actually engaged and were only living
allegedly rammed by a white pickup truck. Both times, the pickup
truck fled the scene after hitting Appellee’s car. 2

     In June 2016, Appellant filed a complaint alleging that
Appellee was negligent with respect to the second accident and
that he suffered permanent injuries to his neck and low back as a
result of that accident. 3 During discovery, Appellant disclosed that
he injured his low back in the early 1980s, but he testified in his
deposition that the injury “healed” and that he had not had any
problems with his low back in the 30 years since. He also denied
having been to see a doctor for low back pain since 2000.

     Appellant’s medical records told a different story. A record
from an emergency room visit in October 2013—seven months
before the accidents—states that Appellant reported that he hurt
his low back by slipping off a stepladder, resulting in pain that he
described as “aching and crushing” at a level of “10 out of 10” and
radiating to his left leg. The record also states that Appellant
reported having a “chronic” history of similar episodes and of a
herniated disc. Additionally, a record from an emergency room
visit in May 2014, nine days after the second accident, states that
Appellant reported that his back pain started “a long time ago” but
was made worse by the first accident.

     Appellee filed a motion to dismiss based upon the
discrepancies between Appellant’s deposition testimony and his




together as “boyfriend-girlfriend” because he was still married to—
but “legally separated” from—another woman.
    2 The driver of the pickup truck in the first accident was
eventually identified. It is unclear from the record whether the
same pickup truck and driver were also involved in the second
accident.
    3 The complaint did not assert any claims related to the first
accident.

                                 2
medical records. 4 The trial court held an evidentiary hearing on
the motion at which Appellant admitted his history of low back
pain as reflected in the medical records, but he claimed that his
contrary deposition testimony was not due to an intent to deceive
but rather was attributable to his “poor memory” caused by mental
health issues, heavy drinking, and his medications. The trial court
granted the motion to dismiss, finding that Appellant’s deposition
testimony was “patently false” and that he had “fraudulently
concealed . . . his prior personal injuries.”

    This appeal followed.

                                   II

                                   A

     Before addressing the merits of the appeal, we explain our
resolution of a procedural issue that arose after Appellee died
during the pendency of this appeal. Appellee’s death did not
render the appeal moot because it is well-established that personal
injury actions survive the death of the alleged tortfeasor, 5 but as


    4  The motion also asserted that Appellant misrepresented his
substantial criminal history in his deposition testimony, but the
trial court ruled that dismissal was not warranted on that basis.
    5   See § 46.021, Fla. Stat. (“No cause of action dies with the
person. All causes of action survive and may be commenced,
prosecuted, and defended in the name of the person prescribed by
law.”); Waller v. First Sav. & Tr. Co., 138 So. 780, 789 (Fla. 1931)
(“A majority of the court have reached the conclusion that under
the laws of Florida a right of action in tort for the recovery of purely
compensatory damages for personal injuries caused by a tort-
feasor in his lifetime does not die with the tort-feasor, but that such
right of action, which has accrued against the tort-feasor in his
lifetime, survives after his death, and that an action at law based
thereon may be brought or maintained by the injured party against
the personal representative of the estate of the deceased tort-
feasor for the recovery of compensatory damages out of the tort-
feasor’s estate for the personal wrong and injury done.”).

                                   3
discussed below, her death required us to cancel the scheduled oral
argument and decide this appeal on the briefs.

    In March 2018, after briefing was complete, counsel for
Appellee filed a notice suggesting that Appellee had died on
February 5, 2018. About a month later, Appellant filed a motion
pursuant to Florida Rule of Appellate Procedure 9.360(c)(3) 6 to
appoint an “attorney/guardian ad litem” for Appellee. The motion
asserted that “no [probate] estate has or will be opened [for
Appellee] in Florida or in any other state” and requested that “T.
David Mann, Esquire,[7] be named as Attorney/Guardian Ad Litem
and that he be substituted . . . as the real party in interest for
[Appellee].” In support of this request, Appellant relied on
Schaeffler v. Deych in which the Fourth District stated that “[i]f no
estate has been opened, then another appropriate representative,
such as a guardian ad litem, will need to be substituted.” 38 So.
3d 796, 800 (Fla. 4th DCA 2010) (quoting Vera v. Adeland, 881 So.
2d 707, 710 (Fla. 3d DCA 2004)). The motion represented that
although Appellee’s counsel did not object to the appointment of
Mr. Mann, she believed that Appellant had to petition to open a
probate estate for Appellee at his expense.

     We denied the motion in an unpublished order citing Judge
Warner’s concurring opinion in Gomez v. Fradin, 199 So. 3d 554
(Fla. 4th DCA 2016). In that case, the Fourth District dismissed
an appeal of a nonfinal order denying the plaintiffs’ motion to
appoint an administrator ad litem for a defendant who had died
and for whom no probate estate had been opened. Id. at 555 (citing
Fla. R. App. P. 9.130) (“The order merely denying substitution is a


    6  The rule provides that “[i]f a party dies while a proceeding
is pending and that party’s rights survive, the court may order the
substitution of the proper party on its own motion or that of any
interested person.”
    7   The motion did not provide any information about Mr.
Mann’s qualifications, experience, or relationship to the parties or
their counsel; it simply stated that Mr. Mann agreed to serve as
the attorney/guardian ad litem for Appellee and that “[t]here is no
immediate action required of Mr. Mann.”

                                 4
non-final, non-appealable order.”). Judge Warner’s concurring
opinion cogently explained why the plaintiff would not have been
entitled to relief even if the appeal had been treated as a petition
for writ of certiorari. Id. Specifically, Judge Warner explained
that the trial court did not depart from the essential requirements
of law in denying the plaintiffs’ motion to substitute because there
is no statutory or rule authority for a court to appoint an
administrator ad litem to represent a deceased defendant in a
pending civil lawsuit. Id. at 555–56. Judge Warner further
explained that the language from Schaeffler quoted above—and
relied on by Appellant in this case—was dicta and that a plaintiff’s
remedy when a defendant dies and no probate estate is opened is
to petition for administration of the estate as an unsecured
creditor. Id. at 556 (citing Harrison-French v. Elmore, 684 So. 2d
323 (Fla. 3d DCA 1996)).

     Although Gomez involved a motion to substitute filed
pursuant to Florida Rule of Civil Procedure 1.260(a), the reasoning
in Judge Warner’s concurring opinion applies equally to motions
to substitute filed pursuant to rule 9.360(c)(3) because the rules
use nearly identical language—providing for substitution of the
“proper” party without providing authority for determining whom
that might be—and serve the same purpose. Accordingly, in
addition to denying Appellant’s motion to appoint an
attorney/guardian ad litem for Appellee, the order directed
Appellant to “show cause . . . why this appeal should not be abated
until a probate estate is opened for Appellee and the personal
representative is appointed and substituted for Appellee in this
appeal.”

     Appellant filed a response to the order to show cause in which
he argued that the appeal should proceed with the current parties
because briefing is complete. He also argued that requiring a
probate case to be opened for Appellee would be an unnecessary
burden on the court system if the dismissal order is ultimately
affirmed, and he suggested that if we reversed the dismissal order,
we could “remand . . . for further adjudication after a ‘proper’
defendant is substituted for the deceased defendant/appellee.”
Finally, he argued that “the logic of . . . Colucci v. Colucci, 309 So.
2d 67 (Fla. 2d DCA 1975) is applicable here.”


                                  5
     Although Appellant’s suggested procedure seems practical, it
ignores the fact that upon her death, Appellee could no longer be a
party to this appeal, see Xtra Super Food Center. v. Carmona, 516
So. 2d 300, 301 (Fla. 1st DCA 1987) (“[D]eceased persons cannot
be parties to a judicial . . . proceeding.”), nor could her attorney
represent her interests, see Rogers v. Concrete Sciences., Inc., 394
So. 2d 212, 213 (Fla. 1st DCA 1981) (“The death of a client
terminates the relationship between the attorney and client and
the attorney’s authority to act by virtue thereof is extinguished.”).
Moreover, because Appellee’s probate estate would be responsible
for paying any resulting judgment if the dismissal order was
reversed and Appellant’s suit was allowed to proceed, the personal
representative of the estate had a right to be represented,
participate in oral argument, and file any necessary post-opinion
motions as the real party in interest. 8

     Moreover, the Colucci case cited by Appellant is
distinguishable because the appeal in that case “was completely
ready for decision” 9 at the time of the party’s death. 309 So. 2d at

    8  We recognize that an insurance company is likely providing
the defense in this case and will be responsible for paying the
judgment up to the policy limit, but Appellee’s estate would be
responsible for paying any excess judgment and would be an
indispensable party if the suit had gone forward. See Nationwide
Mut. Fire Ins. Co. v. Holmes, 352 So. 2d 1233, 1234 (Fla. 4th DCA
1977) (“If a plaintiff is required to prove that the insured was
negligent in order to recover from his insurer, the insured is an
indispensable party and no action may proceed against the insurer
without him, or his properly substituted party.”); Cope v. Waugh,
627 So. 2d 136, 136 (Fla. 1st DCA 1993) (citing Floyd v. Wallace,
339 So. 2d 653 (Fla.1976)) (“Upon the death of an indispensable
party, the action abates until the deceased party’s estate, or other
appropriate legal representative, has been substituted pursuant to
rule 1.260(a)(1).”).
    9  This phrase appears to have come from former Florida
Appellate Rule 3.11(e)(5), which provided: “If any party to the
appeal shall die after the cause is completely ready for decision,
but before decision rendered, a survivor of the suit against the
deceased party shall not be necessary.” Although this language is
                                 6
67. Here, by contrast, the appeal was not ready for decision when
the suggestion of death was filed because oral argument had been
scheduled but not yet held. Cf. Poling v. City Bank & Tr. Co. of St.
Petersburg, 189 So. 2d 176, 184–85 (Fla. 2d DCA 1966) (denying
motion to substitute personal representative for party who died
after oral argument because, at that point, the appeal was
“completely ready for decision”).

      Thus, we were left with two options—either abate the appeal
as described in the order to show cause or cancel oral argument
and decide this appeal based on the briefs. We found the latter
option to be more appropriate in this case because (1) the appeal
was ready for decision aside from the pending oral argument, and
(2) it was Appellant who requested oral argument in the first place,
so his request for the appeal to proceed with the current parties
and his reliance on Colucci’s logic was viewed as a waiver of oral
argument. Accordingly, by unpublished order, we advised the
parties that “oral argument . . . is cancelled and this appeal will be
submitted on the briefs.”

                                  B

    Turning to the merits of the appeal, we review the dismissal
order under a mixed standard of review: the factual findings on
which the dismissal was based are reviewed for competent
substantial evidence, see Tramel v. Bass, 672 So. 2d 78, 79 (Fla. 1st
DCA 1996), while the legal conclusion that a fraud upon the court
has occurred and the trial court’s decision to dismiss the case with
prejudice are reviewed for an abuse of discretion, see Wells Fargo
Bank, N.A. v. Reeves, 92 So. 3d 249, 251 (Fla. 1st DCA 2012).

     Appellant argues that reversal is warranted for essentially
three reasons: (1) the dismissal order failed to include detailed
factual findings; (2) the trial court’s oral and written findings were
insufficient to establish fraud; and (3) it was an abuse of discretion


not contained in the current appellate rules, the permissive tone
of rule 9.630(c)(3)—“the court may order the substitution of the
proper party”—allows the court not to order substitution in
circumstances such as those described in former rule 3.11(e)(5).

                                  7
to dismiss the matter with prejudice. We reject each argument in
turn.

     First, we reject Appellant’s argument that the dismissal order
did not include sufficient written factual findings because this
issue was not preserved. See Freiha v. Freiha, 197 So. 3d 606, 608
(Fla. 1st DCA 2016) (“A motion for rehearing must be filed with
the trial court to challenge a final judgment’s lack of sufficient
findings of fact to allow meaningful appellate review.”). Even if
the argument was preserved, it is without merit because the
primary case on which Appellant relies in support of this
argument—Chacha v. Transportation USA, Inc., 78 So. 3d 727
(Fla. 4th DCA 2012)—is not binding on this Court and is readily
distinguishable. In Chacha, the trial court did not hold an
evidentiary hearing or make any relevant oral findings and issued
a nonspecific written order that in no way demonstrated that the
court “carefully balanced the policy favoring adjudication on the
merits with the competing policy to maintain the integrity of the
judicial system.” Id. at 731. By contrast, the trial court in this case
held an evidentiary hearing, made oral and written findings that
clearly provided the basis for the dismissal, and made comments
at the evidentiary hearing reflecting consideration of the
competing policy interests. Specifically, on the latter point, the
trial court stated that the applicable clear and convincing evidence
standard is “very high” and that this was a “[t]ough case” and “very
difficult” because dismissal is a “very harsh result.” Then, after
orally granting the motion to dismiss, the court stated that “[t]his
is not done lightly, believe me.”

      Next, we reject Appellant’s argument that there was
insufficient evidence of fraud because the trial court’s findings that
Appellant provided false testimony both during his deposition and
at the evidentiary hearing is supported by competent substantial
evidence. During his deposition, Appellant was specifically asked
whether he had prior back injuries and he responded by
mentioning a 42-foot fall from a roof in the early 1980s, but he then
immediately stated “but I mean, I was healed. You know, I didn’t
have any trouble.” Appellant denied that the roof accident resulted
in any broken bones or surgery and explained: “[I]t messed it up a
little bit, made it sore for a while. I had healed since then. I mean,
I was fine. Like I said, I’d been running heavy equipment 22 years.

                                  8
I didn’t have no problems.” This sworn testimony is in stark
contrast with the medical records from Appellant’s 2013 and 2014
emergency room visits, which provide that Appellant had a history
of chronic low back pain that intensified after the first car accident
in May 2014, which is not the subject of this suit. Moreover, during
the October 2013 visit, Appellant presented to the emergency room
complaining of excruciating low back pain, which he failed to make
any mention of in his deposition. In fact, he denied having been to
see any doctor regarding back pain since 2000.

     The trial court had plenty of reason to discount Appellant’s
testimony at the evidentiary hearing that his deposition testimony
was the result of “poor memory” rather an intent to deceive. For
example, Appellant has an extensive criminal history, including
numerous crimes of dishonesty. Additionally, despite the fact that
Appellant continued to claim to have no recollection of the
excruciating pain he experienced less than seven months prior to
the car accidents or the associated emergency room visit, he
admitted in his testimony at the evidentiary hearing that he had
experienced low back pain since the 1980s roof incident, in
accordance with the medical records and in direct conflict with his
deposition testimony that he was completely “healed” and had “no
problems” after that incident. Accordingly, we have no basis to set
aside the trial court’s finding that Appellant fraudulently
concealed his medical history. See Ramey v. Haverty Furniture Co.,
993 So. 2d 1014, 1019 (Fla. 2d DCA 2008) (“We recognized the trial
court’s assessment of the credibility of the plaintiff’s testimony at
the evidentiary hearing as a basis for the trial court’s exercise of
discretion.”).

     Finally, we reject Appellant’s argument the trial court abused
its discretion in concluding that Appellant’s fraudulent
concealment of his chronic low back pain warranted dismissal of
his suit with prejudice. “A trial judge has the inherent authority
to dismiss actions based on fraud.” Hutchinson v. Plantation Bay
Apartments, LLC, 931 So. 2d 957, 959–60 (Fla. 1st DCA 2006)
(quoting Distefano v. State Farm Mut. Auto. Ins. Co., 846 So. 2d
572, 574 (Fla. 1st DCA 2003)). Fraud on the court occurs when
clear and convincing evidence demonstrates “a party has
sentiently set in motion some unconscionable scheme calculated to
interfere with the judicial system’s ability impartially to

                                  9
adjudicate a matter by improperly influencing the trier of fact or
unfairly hampering the presentation of the opposing party’s claim
or defense.” Id. at 960 (quoting Cox v. Burke, 706 So. 2d 43, 46 (Fla.
5th DCA 1998)).

     Here, Appellant’s false testimony concerned his injury history,
which is at the very heart of this case. See Distefano, 846 So. 2d at
574 (“When a party lies about matters bearing directly on the issue
of damages, dismissal is an appropriate sanction.”); Baker v. Myers
Tractor Servs., Inc., 765 So. 2d 149, 150–51 (Fla. 1st DCA 2000)
(“[T]he false testimony of Baker did not concern a matter collateral
to his claim, but was directly related to a central fact necessary to
establish his claim.”). Appellant’s attempt to conceal information
so pertinent and critical to his claim cannot be considered anything
less than an “unconscionable scheme calculated to interfere” with
the proper adjudication of the matter. Appellant asserts that if he
intended to deceive the court, he would not have reported the
1980s injury at all. However, being truthful about some facts while
denying or omitting others does not constitute the “truthful
disclosure of facts” on which “[t]he integrity of the civil litigation
process depends.” Cox, 706 So. 2d at 47; see also Distefano, 846 So.
2d at 575 (quoting Morgan v. Campbell, 816 So. 2d 251, 254 (Fla.
2d DCA 2002)).

     The trial court’s decision to dismiss this case with prejudice is
supported by “the need to maintain [the] institutional integrity [of
the judicial system] and the desirability of deterring future
misconduct.” Ramey, 993 So. 2d at 1020 (quoting Aoude v. Mobil
Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)) (alteration
supplied). It is immaterial that Appellant does not appear to have
had (or concealed) any prior neck injury because “where a party
lies about matters pertinent to his own claim, or a portion of it, and
perpetrates a fraud that permeates the entire proceeding,
dismissal of the whole case is proper.” Cox, 706 So. 2d at 47 (citing
Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So. 2d 1011 (Fla.
4th DCA 1997)) (emphasis added). Accordingly, the trial court did
not abuse its discretion in dismissing Appellant’s suit.




                                 10
                             III

    Based on the foregoing, we affirm the trial court’s order
dismissing this case with prejudice for fraud on the court.

    AFFIRMED.

RAY and OSTERHAUS, JJ., concur.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Woodburn S. Wesley, Jr., of Wesley, McGrail & Wesley, Fort
Walton Beach, for Appellant.

Samantha D. Costas and Linda H. Wade of Wade, Palmer &
Shoemaker, P.A., Pensacola, for Appellee.




                             11
