       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 13, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-520
                          Lower Tribunal No. 11-5340
                             ________________


                                 Eileen Diaz,
                                    Appellant,

                                        vs.

                   Home Depot USA, Inc., etc., et al.,
                                    Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Migna Sanchez-
Llorens, Judge.

      Wasson & Associates and Erin Pogue Newell; Anidjar & Levine, for
appellant.

     Cole, Scott & Kissane and Scott A. Cole, for appellees.


Before ROTHENBERG, EMAS and FERNANDEZ, JJ.

     EMAS, J.
         Eileen Diaz appeals an order dismissing with prejudice her complaint

against Home Depot USA, Inc. and A.B. Fire Equipment, Inc. for fraud on the

court.      Having reviewed the record below, including Diaz’s deposition, her

answers to interrogatories and requests for admissions, and the transcript of the

hearing held on Home Depot’s motion to dismiss, we affirm the trial court’s order.

         We review the trial court’s order under an abuse of discretion standard,

although “we do so with the understanding that this standard is ‘somewhat

narrowed,’ as it must take into account the heightened standard of ‘clear and

convincing evidence’ upon which an order of dismissal for fraud on the court must

be based.” Suarez v. Benihana Nat. of Fla. Corp., 88 So. 3d 349, 352 (Fla. 3d

DCA 2012) (internal citations omitted). “A trial court has the inherent authority to

dismiss an action when it finds that a plaintiff has perpetrated a fraud on the court.”

Medina v. Fla. East Coast Ry., L.L.C., 866 So. 2d 89, 90 (Fla. 3d DCA 2004).

However, dismissal is appropriate only where “it is established by clear and

convincing evidence ‘that a party has 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.” Hair v.

Morton, 36 So. 3d 766, 769 (Fla. 3d DCA 2010) (quoting Cox v. Burke, 706 So.

2d 43, 46 (Fla. 5th DCA 1998)).



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      Diaz sued Home Depot alleging she was injured in one of its stores when a

fire extinguisher fell from the wall above her and hit her in the neck and shoulder.

Diaz alleged she suffered permanent injuries to her neck and shoulder and sought

both economic and noneconomic damages. In the course of pretrial discovery,

including a deposition, Home Depot questioned Diaz about her injuries, as well as

whether she suffered any prior neck or shoulder injuries. At each point, Diaz

denied that she previously suffered any injury to her neck or back, and denied that

she was ever involved (either before or after the Home Depot incident) in a slip

and fall accident or a motor vehicle accident that required medical treatment. 1

      However, after obtaining Diaz’s medical records, Home Depot discovered

that just nine months prior to the Home Depot incident, Diaz had, in fact, been

involved in a motor vehicle accident, was placed in a cervical collar, and was

transported by ambulance to Homestead Hospital’s emergency room where she

received treatment. Upon arrival at the emergency room, Diaz complained of,

among other things, pain to her neck and upper back. Nurses’ notes showed Diaz

described her pain level as ten out of ten. The emergency room physician made a

1 In her deposition, for example, Diaz affirmed under oath, and in response to
individual questions, that she has “never had any problems with [her] neck”; that
the only back pain she ever suffered was during pregnancy and childbirth; that she
has “[n]ever been involved in a slip or trip and fall accident for which [she] needed
treatment”; that she has “never been in any accident that [she’s] been hurt”; that
she has never been involved in a motor vehicle accident for which she needed
medical treatment; and that she has never been to the hospital for a car accident.


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primary diagnosis of neck sprain, with a secondary diagnosis that included

cervicalgia, headache, backache and muscle spasm. She was discharged eight

hours later, with instructions not to work for two days, and was prescribed

ibuprofen, Flexeril and Zantac.

      Additionally, the medical records revealed that, less than seven months

before the Home Depot incident (and just two months after the above-described

accident), Diaz visited the emergency room again, complaining of neck pain and

back pain. The medical history reflects that Diaz stated she passed out two days

earlier, fell backwards and hit concrete. As reflected in the medical history, Diaz

reported that she was experiencing “throbbing pain to neck and sharp pain to back.

Back and neck pain increases with movement.” Diaz described her pain level as

eight out of ten. She was at the hospital for more than six hours, diagnosed with a

neck sprain, and was prescribed Percocet upon her discharge.

      Finally, the medical records revealed that eight months after the Home

Depot incident (and less than two months after filing the instant lawsuit), Diaz was

involved in a single-car accident which required her to go the Homestead Hospital

emergency room. According to the history provided by Diaz to the nurse, the

accident occurred two weeks earlier. At that time, Diaz was driving a car at 120

miles per hour when it struck a divider and spun several times. The windshield on

Diaz’s car broke, and there was a prolonged extraction of Diaz. Diaz was not



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wearing a seat belt, but was not ejected from the vehicle. However, she was not

ambulatory at the scene of the accident. Diaz reported that she suffered severe

pain to her right side for two weeks, and felt a knot to the same area that is

growing worse. She described her pain level as ten out of ten.2 She also reported

to the nurse that she had chronic neck pain since 2009.         Diaz was taken to

radiology for testing and was discharged four hours later, accompanied by a parent.

         Home Depot filed a motion to dismiss Diaz’s complaint for fraud on the

court.    The trial court conducted an evidentiary hearing on the motion, at which

Diaz testified and several documents were admitted in evidence. The court granted

Home Depot’s motion to dismiss, finding, in a detailed, seventeen-page order, that,

inter alia, Diaz provided false and misleading testimony and that the evidence

shows “clearly and convincingly” that Diaz “has demonstrated a willingness to


2   Importantly, this motor vehicle accident occurred after the lawsuit had
commenced and during the pretrial discovery period. Diaz gave her deposition just
eight months after this single-car accident and her subsequent visit to the
emergency room. Although the injuries sustained from the post-incident accident
(i.e., right abdominal pain) were different from the injuries allegedly suffered in
the instant lawsuit, the significance for our purposes (and for the trial court) was
Diaz’s consistent denial that she ever sought medical treatment as a result of any
motor vehicle accident, whether before or after the incident at issue. While Diaz
did eventually disclose that she had been in a post-incident accident, she described
it as a “no impact” accident, stated that there was “no damage done to the vehicle,”
and reaffirmed under oath that she had never been to the hospital as a result of a
car accident. The failure to disclose the emergency room visit, and the true nature
of the motor vehicle accident leading to that visit, was properly considered by the
trial court in weighing Diaz’s credibility, and as evidence of Diaz’s intent to
conceal.

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give false testimony under oath and has evinced a total and flagrant disregard for

the integrity of the civil justice system;” has “engaged in a pattern of fraudulent

misconduct designed to improperly bolster her claims and compromise [Home

Depot’s] defenses;” leaving the court in “no doubt that [Diaz’s] conduct is

intentional and designed for improper purposes.” The court further found that

Diaz’s explanations for her false testimony were not credible.

      We conclude that all of the trial court’s findings are amply supported by the

record, and we find no abuse of discretion in its decision to dismiss Diaz’s

complaint with prejudice, based upon a determination that the “evidence clearly

and convincingly demonstrated that [Diaz] ‘sentiently set in motion [an]

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

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

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

Cox [v. Burke], 706 So. 2d [43], at 46 [(Fla. 5th DCA 1998)].” See id. at 47

(holding that where plaintiff gave many false or misleading answers in sworn

discovery on issues central to her case, the question was close enough that lower

court could not be found to have abused its discretion, pointing out that “[a] system

that depends on an adversary’s ability to uncover falsehoods is doomed to failure,

which is why this kind of conduct must be discouraged in the strongest possible

way”); Morgan v. Campbell, 816 So. 2d 251, 253 (Fla. 2d DCA 2002) (quoting



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Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983)) for the proposition that “‘the

appellate court must fully recognize the superior vantage point of the trial judge

and should apply the reasonableness test to determine whether the trial judge

abused his discretion’”). See also Austin v. Liquid Distrib., Inc., 928 So. 2d 521

(Fla. 3d DCA 2006) (reaffirming that when a plaintiff makes misrepresentations

and omissions about her accident and medical history in interrogatories and in

deposition, those misrepresentations and omissions go to the heart of her claim and

subvert the integrity of her action); Long v. Swofford, 805 So. 2d 882 (Fla. 3d

DCA 2001) (noting that the “trial court has a duty and an obligation to dismiss a

cause of action based on fraud” where plaintiff concealed her pre-existing back

injury during deposition by stating she had not received medical treatment for her

back prior to the accident); Leo’s Gulf Liquors v. Lakhani, 802 So. 2d 337 (Fla. 3d

DCA 2001) (finding dismissal not an abuse of discretion where plaintiff’s

corporate agents repeatedly lied under oath during depositions concerning issues

material to the prosecution of the claims).

      Affirmed.




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