       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 03, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1431
                         Lower Tribunal No. 15-19927
                             ________________


                 Ivy Robinson and Glasford Robinson,
                                   Appellants,

                                        vs.

                     Safepoint Insurance Company,
                                    Appellee.

      An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.

     David B. Pakula, P.A., and David B. Pakula (Pembroke Pines); The Strems
Law Firm, and Gregory Saldamando, for appellants.

      Bressler, Amery & Ross, P.C., and Hope C. Zelinger (Fort Lauderdale), for
appellee.

Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.

      ROTHENBERG, C.J.

      Ivy and Glasford Robinson (“the Robinsons”) appeal from the trial court’s

final order granting Safepoint Insurance Company’s (“Safepoint”) motion to
dismiss the Robinsons’ complaint with prejudice for perpetrating a fraud on the

court. Although Safepoint’s unauthenticated submissions certainly suggests that an

attempted fraud on the court may have been committed, we conclude that before

the ultimate sanction of dismissal may be imposed, the trial court must conduct the

evidentiary hearing requested by the Robinsons. Accordingly, we reverse and

remand for an evidentiary hearing.

      The gravamen of the Robinsons’ complaint is Safepoint’s denial of the

Robinsons’ insurance claim, a claim which is based on an alleged water leak on the

Robinsons’ property they claim occurred suddenly on April 9, 2015. Safepoint’s

claim that the Robinsons were attempting to commit a fraud upon the court is

based on the following.    Ivy Robinson testified repeatedly under oath in her

deposition that the restoration services company they used to remediate the water

from the leak was not contacted until days after the alleged water damage

occurred. However, Safepoint contends that the Robinsons’ telephone records

demonstrate that the Robinsons were contacted by the restoration services

company that was hired to remediate the alleged water damage to the Robinsons’

property on March 30, 2015, which was ten days before the alleged leak occurred

and that the work authorization form submitted by the restoration company states

that the company performed services for the Robinsons beginning on the date of

the alleged water leak.



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         In its final order dismissing the Robinsons’ complaint with prejudice, the

trial court found that the Robinsons set in motion an unconscionable scheme

intended to render the trial court unable to properly adjudicate the action on the

merits. See Diaz v. Home Depot USA, Inc., 196 So. 3d 504, 505 (Fla. 3d DCA

2016) (quoting Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998)) (stating that

dismissal for perpetrating a fraud on the court is only appropriate where there is

clear and convincing evidence that a party has sentiently set in motion some

unconscionable scheme calculated to interfere with the judicial system’s ability to

impartially adjudicate a matter by improperly influencing the trier of fact or

unfairly hampering the presentation of the opposing party’s claim or defense). The

trial court found that based on the pre-loss contact between the restoration services

company and the Robinsons, along with inconsistencies between the Robinsons’

testimony and documentation related to the work completed on the property, there

was clear and convincing evidence that the Robinsons perpetrated a fraud upon the

court.

         Although Safepoint has raised serious questions regarding the legitimacy of

the Robinsons’ claim, we agree with the Robinsons that the trial court erred by

granting Safepoint’s motion to dismiss based on unauthenticated telephone records

and an unauthenticated invoice, and without conducting the requested evidentiary




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hearing at which the Robinsons would have been afforded the opportunity to refute

Safepoint’s submissions or explain any inconsistencies/and or omissions.

Accordingly, we reverse the order dismissing the Robinsons’ complaint with

prejudice and remand for an evidentiary hearing.

      Reversed and remanded for an evidentiary hearing.




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