       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 20, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2607
                         Lower Tribunal No. 14-31429
                             ________________


                          Rebecca Willie-Koonce,
                                    Appellant,

                                        vs.

           Miami Sunshine Transfer & Tours Corp., et al.,
                                    Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, Rosa I.
Rodriguez, Judge.

      Lazer, Aptheker, Rosella, & Yedid and Eric J. Horbey (West Palm Beach),
for appellant.

      Boyd, Richards, Parker & Colonnelli, W. Todd Boyd and Yvette R. Lavelle,
for appellees.


Before SALTER, EMAS and LOGUE, JJ.

      SALTER, J.
      Rebecca Willie-Koonce, plaintiff below, appeals an order dismissing her

personal injury suit against Miami Sunshine Transfer & Tours Corporation

(“Miami Sunshine”) for fraud on the court. We affirm, finding that the trial court

did not abuse its discretion after considering a highly-probative surveillance video

and the testimony of Ms. Willie-Koonce regarding her claimed limitations after her

accident.

      Facts

      In September 2014, Ms. Willie-Koonce hired Miami Sunshine to drive her

and her luggage to the cruise ship dock in Miami. As she was removing her

luggage from the trailer pulled by a Miami Sunshine vehicle, the vehicle and trailer

began backing up, running over Ms. Willie-Koonce and pinning her under the axle

of the trailer.   There is no dispute that Ms. Willie-Koonce sustained serious

injuries, including a ten-day hospital stay for treatment of a fractured femur. The

treatment included implanting a titanium rod and several screws to repair the bone,

followed by extensive physical therapy to regain as much of her pre-injury

mobility as possible.

      Three months after the accident, Ms. Willie-Koonce sued Miami Sunshine

and the individual operator of the vehicle which towed the trailer for negligence.

During pretrial discovery, Ms. Willie-Koonce provided sworn answers to

interrogatories and deposition testimony that included statements that she had a


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“permanent limp,” that she needs a cane to get around, and that when she walks a

“few steps” to her car without a cane, she limps. She also testified that she could

not walk without a cane carrying large boxes, had not tried carrying heavy or bulky

items, and had to use a handrail to walk up steps without a cane.

      Unbeknownst to her at the time, apparently, Ms. Willie-Koonce had been

surveilled for some seven hours in March 2016, and videotaped for much of that

time, by a defense investigator.      She was videotaped while moving into a

townhome in North Carolina, and the videotape clearly shows her walking

continuously up and down steps without using a cane or handrail, carrying large

and bulky items (of indeterminate weight) without assistance, up and down the

front steps without using a cane or a handrail. The videotape of Ms. Willie-

Koonce shows her walking to the back of her automobile, opening the trunk, and

carrying packages (again, without the assistance of another person) into the

townhome without using a cane or limping.

      Miami Sunshine and its driver filed a motion to dismiss the case for fraud on

the court, citing Ms. Willie-Koonce’s sworn responses and contrasting it with the

surveillance video evidence.     They argued that Ms. Willie-Koonce had lied

regarding her allegation that her injury is continuing and permanent, with

concomitant future damages claimed by her as a result.




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      Ms. Willie-Koonce filed a response in opposition to the motion to dismiss

for fraud on the court, and the trial court conducted an evidentiary hearing on the

motion in September 2016. As part of that hearing, Ms. Willie-Koonce testified

regarding the surveillance video and her prior testimony, but was essentially

unable to explain how the video could be consistent with her claims and prior

testimony. The following month, the trial court granted the defendants’ motion in

a final order of dismissal that included findings of fact and conclusions of law.

Among the findings were:

             The Court finds that the record evidence establishes that
      Plaintiff repeatedly lied under oath, both in deposition and at the
      evidentiary hearing, regarding issues material to the prosecution of
      Plaintiff’s claims, to wit: her physical activities, abilities, and
      limitations, and that this deception was intended to interfere with the
      judicial system’s ability to impartially adjudicate the case by
      improperly influencing the trier of fact and unfairly hampering the
      Defendants’ ability to defend the case. Plaintiff’s untruthful and
      fraudulent testimony went to the heart of Plaintiff’s claimed damages.

      Thereafter, Ms.    Willie-Koonce filed motions for reconsideration and

rehearing, which were denied. This appeal ensued.

      Analysis

      We review an order dismissing a party’s pleadings as a “severe sanction,” to

be administered “only in the most egregious cases,” and under a “‘narrowed’ abuse

of discretion standard.” Empire World Towers, LLC v. CDR Créances, S.A.S., 89

So. 3d 1034, 1038 (Fla. 3d DCA 2012). The movant must prove, by clear and


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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.” Id.

(quoting Aoude v. Mobil Oil Corp., 892 F. 2d 1115, 1118 (1st Cir. 1989)).

      Ms. Willie-Koonce contends that the dismissal of the entire case goes too

far, as there is no genuine dispute regarding the past medical costs and loss of

income as a result of the accident. She maintains that the surveillance videotape

only calls into question the extent of damages for future lost wages and for pain

and suffering.

      In a comparable, but distinguishable, case, videotape surveillance evidence

showed that a personal injury plaintiff had testified untruthfully regarding some 19

alleged physical limitations attributable to the accident. Jimenez v. Ortega, 179

So. 3d 483, 486 (Fla. 5th DCA 2015). The trial court denied a motion to dismiss

(for fraud on the court) all of the compensatory damages awarded by the jury at

trial. On appeal, the Fifth District reversed the denial, but adopted a remedy less

drastic than dismissal of all claims. The Fifth District allowed the award for

property damage and past medical expenses, but reversed and directed dismissal of

“the award for lost earnings and the award for pain and suffering, disability,

physical impairment, disfigurement, mental anguish, inconvenience, aggravation


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of a pre-existing condition and loss of enjoyment of life.” Id. at 489. In that case,

however, “[n]either liability nor the costs [plaintiff] sought for medical expenses

and the damage to his truck were disputed.” Id. at 484.

      Another opinion involving a surveillance video inconsistent with a

plaintiff’s testimony and damage claims, Amato v. Intindola, 854 So. 2d 812 (Fla.

4th DCA 2003), reversed a trial court order of dismissal for fraud on the court.

The court found that the discrepancies between the plaintiff’s sworn testimony and

the activities shown on the surveillance video in that case did not rise to the level

of an intentional fraud:

      In most cases of personal injury there is a disparity between what the
      plaintiff believes are the limitations caused by the injuries and what
      the defense thinks. Many times surveillance tapes are used to show
      that the plaintiff can do more than what he or she states are the
      limitations. The fact that a surveillance tape shows discrepancies
      usually affects the jury’s view of the case, but in this case it does not
      merit a dismissal with prejudice to appellant’s case.

Id. at 816.

      But in the present case, the surveillance video and Ms. Willie-Koonce’s

testimony (before and after she was aware of the existence of the video) do provide

clear and convincing evidence of an intention to deceive the court. The record

before us presents precisely the egregious misconduct warranting dismissal.

Dismissal was not an abuse of the “somewhat narrowed” discretion afforded the




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trial judge, and the trial court’s findings following the evidentiary hearing

(including viewing the video) will not be disturbed here.

      Conclusion

      Although the result in this case may seem rough justice, the courts must deal

firmly and publicly with a litigant’s fraud on the very judicial system the litigant

asks to render justice. Over 2,000 years ago, Roman law recognized the deterrent

effect of harsh penalties in the phrase “Ut poena ad paucos, metus ad omnes

perveniat”—“That punishment may come to a few, the fear of it should affect all.”

      Affirmed.




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