EDWIN BIRD, JUDITH BIRD, AND SARAH LEE BIRD, A MINOR, APPELLANTS,
v.
HARDRIVES OF DELRAY, INC., AND CONSTANTINO GONZALEZ, APPELLEES
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The appellate court reversed a trial court's midtrial dismissal of a personal injury action after the judge sua sponte struck the plaintiffs' complaint based on suspected perjury and fraud by the plaintiff Edwin Bird. The court held that dismissal without notice and an evidentiary hearing violated due process, and that even for discovery violations, less extreme remedies must be considered before dismissal.
The court reversed the dismissal, holding that it was error to summarily strike the plaintiffs' pleadings without providing notice and an opportunity for an evidentiary hearing on the serious charges of fraud and perjury. The court also held that even for discovery violations like missing evidence, plaintiffs must be given an opportunity to show that the action can proceed with a less extreme remedy and to demonstrate that any loss was not in bad faith.
[1] A trial court errs by summarily striking a plaintiff's pleadings and dismissing an action mid-trial without notice or an opportunity for an evidentiary hearing.
[2] A trial court's decision to dismiss an action based on alleged perjury or discovery violations requires sufficient factual support.
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Join FLexlaw to unlock all legal intelligence“It was error to summarily strike the plaintiffs pleadings and dismiss the action.”
Establishes the core holding that the trial court's sua sponte dismissal violated proper procedure.
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Join FLexlaw to unlock all legal intelligenceEdwin Bird was a plaintiff in a personal injury case. During trial, after viewing surveillance video that contradicted Bird's testimony and finding hi…
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PER CURIAM.
We reverse a final judgment for Defendants entered after the trial court, midway through Plaintiffs’ case, announced, sua sponte, that the court was striking the complaint and dismissing the action.
The court, upon concluding that Edward Bird was committing perjury,1 and perpetrating a “sham, a fraud, and outright criminal conduct,” summarily terminated the case while Bird was on the stand. At that point, the court and jury had seen a surveillance tape reflecting Edwin Bird’s physical condition in impeaching juxtaposition to his own “day in the life” video. At the same time, the court believed that Bird’s testimony, attempting to explain that he had not seen a doctor recently because the trial “was brought on suddenly,” was directly contrary to the court’s own recollection of the court’s setting the trial date to accommodate Plaintiffs.
The court, at the time of its ruling, also was cognizant of its pretrial decision on a motion in limine, that sought sanctions due to the unexplained disappearance of an MRI that was last in Edwin Bird’s possession. In ruling on that motion, the court had decided not to impose sanctions for the discovery violation, but to remedy the problem by a special jury instruction as to the missing evidence. In announcing its midtrial decision to strike the complaint and dismiss, the court also commented “that Mr. Bird most likely did dispose of this key piece of evidence”; but that was not the stated basis for the dismissal.
Several months after the court’s announcement of dismissal, the defense filed a written motion for sanctions, together with affidavits and portions of depositions concerning the missing MRI. This motion also sought attorney’s fees and a written judgment for the defendants. After a nonevidentiary hearing, the court entered a final judgment, finding that Plaintiffs willfully destroyed MRI films in order to conceal their fraudulent claims, and that Defendants could not proceed without that vital evidence.
The record reflects that the court’s explanation for its decision to dismiss shifted from the suspected fraud and perjury announced during the trial, to Plaintiffs’ failure to produce the MRI, alone emphasized in the written order. The record also reflects that the court’s written decision was based on additional material presented months after the court’s sua sponte pronouncement at trial terminating the case.
It was error to summarily strike the plaintiffs pleadings and dismiss the action. Mercer v. Raine, 443 So. 2d 944 (Fla.1983); Surat v. Nu-Med Pembroke, Inc., 632 So. 2d 1136 (Fla. 4th DCA 1994). We reverse because of the lack of notice or opportunity for Appellants to be heard at an evidentiary hearing on the serious charges. See generally, Surat; Young v. Curgil, 358 So. 2d 58 (Fla. 3d DCA 1978); Parham v. Kohler, 134 So. 2d 274 (Fla. 3d DCA 1961). See also Tri Star Invs., Inc. v. Miele, 407 So. 2d 292 (Fla. 2d DCA 1981). With respect to the missing evidence, Appellants are also entitled to an opportunity to show that the action can proceed with a less extreme remedy and, if so, to demonstrate that the loss was not in bad faith. See Kuechenberg v. Creative Interiors, Inc., 424 So. 2d 145 (Fla. 4th DCA 1982); DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983). See also Binger v. King Pest Control, 401 So. 2d 1310 (Fla.1981).
Additionally, there is patently insufficient factual support for the trial court’s oral dismissal of Mrs. Bird’s complaint based on perjury or discovery violation by Mr. Bird. We recognize that the written final judgment does contain findings. However, the findings were entered long after the imposition of the actual sanctions imposed during trial.
On remand, the chief judge of the circuit should assign another judge to this case.
ANSTEAD, GLICKSTEIN and STONE, JJ., concur. . Among other strongly worded comments, the court stated that it had “never heard a bigger liar in my life.”
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COX v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998)…h court orders. Kornblum v. Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992). Because dismissal is the most severe of all possible sanctions, however, it should be em- • ployed only in extreme circumstances. Id.; Bird v. Hardrives of Delray, Inc., 644 So. 2d 89, 90 (Fla. 4th DCA 1994). Defendants rely mainly on the third district’s holding in O'Vahey v. Miller, 644 So. 2d 550 (Fla. 3d DCA 1994), review denied, 654 So. 2d 919 (Fla.1995), for the proposition that lies made under oath by personal injury plai…
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Jacob v. Cal Henderson, 840 So. 2d 1167 (Fla. 2d DCA 2003)…with court orders. Kornblum v. Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992). Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances. Id.; Bird v. Hardrives of Delray, Inc., 644 So. 2d 89, 90 (Fla. 4th DCA 1994). Viewing the facts before this court, Mrs. Jacob either knowingly perpetrated a fraud, exaggerated her injuries, or unknowingly provided video evidence that her injuries are far less severe than she may believe. Only the fir…
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Amlan, Inc. v. Detroit Diesel Corp., 651 So. 2d 701 (Fla. 4th DCA 1995)…ting of the burden of proof. A jury may properly receive evidence and be instructed on the unexplained disappearance of evidence. See, e.g., Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987); Bird v. Hardrives of Delray, Inc., 644 So. 2d 89 (Fla. 4th DCA 1994.) The discovery abuses alleged to have been committed by Detroit Diesel in this ease are not of the type which have such evidentiary value. [*704] THE POST-TRIAL MOTION FOR SANCTIONS The separate issue presented on the cross-appe…
Previewing 3 of 42 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)
- TRI Star Invs., Inc. v. Miele, 407 So. 2d 292 (Fla. 2d DCA 1981)
- Young v. Curgil, 358 So. 2d 58 (Fla. 3d DCA 1978)
- Glenna Parham and Richard Parham v. Kohler, 134 So. 2d 274 (Fla. 3d DCA 1961)
- DePUY, Inc. v. Eckes, 427 So. 2d 306 (Fla. 3d DCA 1983)
- Freddy Charles Green v. State, 424 So. 2d 145 (Fla. 4th DCA 1982)
- Lurine Surat v. Nu-Med Pembroke, Inc., 632 So. 2d 1136 (Fla. 4th DCA 1994)