ANTONIO VALIENTE

v.

TANIA ALVAREZ

c¹;; Opinion filed: September 6, 2013. Oral argument: July 25, 2013. On appeal from a final judgment rendered by the County

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3;. f-1"! (_' ,1 Caryn Canner Schwartz. ' [lant- Nadja Prias (oral argument) and Rolando Casais, ., Plaintiff‘. Tania Alvarez, Appellee-Defendant, pro se. Before HIRSCH, DE LA O, and VERDE, J.I. DE LA O, Judge. ' lv (“Alvarez”), fo Appellant, Antonio Valiente (“Valiente”), sued Appellee, Tania A arez rted failure to pay him rent. Alv Jr Casais & Prlas, PLLC, for the Appe arez counterclaimed for fraud and an eviction due to her purpo sh had aid certain monies to Valiente, her fiance, and “e uitable lien,” which alleged that e p <¹ ' ' fu <¹ to her.‘ On March¹, 2012, requested that the trial court require Valtente to return those n s I‘ ' ' 'sd'ction because Aivarez did not seek st the County Court of Stlb_]6Ct matterjun th term “equitable hen” 1n ‘ Alvarez’s counterclaim did not dive ' ' ' e. Read in context, the counterclaim used e A endix at 5. We an “equitable lien” agamst the premises at lSSll reference to the funds Alvarez gave to Valiente for the purchase ofthe house. See Appellant’s pp [*2] J Page 2 of 10 C686 NO. I2-Q45 AP the trial court struck Alvarez’s pleadings and rendered a default in Valiente’s favor based on Valiente’s allegation in his eviction complaint that Alvarez was a tenant on the property, that she owed $10,000.00 in past due rent, and that she had failed to deposit this sum in the registry of the court (or file a motion to determine rent). On March 8, 2012, the trial court rendered a final judgment in favor ofValiente and issued the writ ofpossession? After learning she would soon be evicted, Alvarez submitted a letter to the trial court on March 8, 2012. The letter explained that she helped finance Valiente’s purchase ofthe premises at issue by giving him $9,530.00; that they intended for the property to be titled in both their names; that Alvarez only learned at the time ofclosing that her name would not appear on title due to certain regulations surrounding the “FHA loan and MMAP”; that Valiente ended their relationship shortly after closing on the home; and that the parties verbally agreed that since Alvarez provided $9,530.00, which Valiente was not able to return to her at the time, Alvarez and her son could stay in the home rent-free until May 2012. The trial court treated the letter as an emergency motion to stay_ the writ ofpossession. The trial court granted the motion and scheduled a hearing. After the evidentiary hearing on March 21, 2012, the trial court vacated the default, the default final judgment, and the writ ofpossession (“Rule l.540(b) order”), and dismissed the complaint with prejudice due to fraud upon the court. interpret Alvarez’s equitable lien counterclaim as requesting that the trial court order Valiente to return her $9,530.00 as damages for the fraud he perpetuated on her. Alvarez never asserted a possessory interest in the premises. To the contrary, she admitted the property was not titled in her name; indeed, she claims this was part of Valiente’s fraud. Thus, the trial court retainedjurisdiction to resolve the counterclaim because the amount Alvarez alleged Valiente owed her did not exceed the $15,000.00 jurisdictional limit for county courts. Even ifthis were not so, the trial court struck Alvarez’s answer and counterclaim pursuant to Florida Statutes section 83.60. Thus, at the time the trial court entered the dismissal with prejudice, the counterclaim could not have divested the trial court ofjurisdiction because it was no longer an operative pleading. 2 The trial court dutifully enforced Florida Statutes section 83.60, which requires a tenant to (1) deposit all past due rent in the court registry within five days ofservice ofthe eviction complaint or (2) file a motion to determine rent. Failure to do either, regardless of a tenant’s answer, affirmative defenses, or counterclaims, results in a default judgment ofeviction. See discussion, infi-a, at 5~6. [*3] J Page³ of 10 Case No. i2-245 AP Appellate Jurisdiction A Rule l.540(b) order constitutes a non-final order. See John Deere Constr. & Forestry Co. v. Lorelys Elec. Corp., 69 So. 3d 1099, 1100 (Fla. 3d DCA 2011). In this matter, Alvarez served a Rule 1.530 motion for rehearing directed at the Rule l.540(b) order. However, when a party wishes to appeal a non-final order, the party must file a notice with “the clerk of the lower tribunal within 30 days ofrendition of the order.” Fla. R. App. P. 9.l30(b) (emphasis added). A Rule l.530(b) rehearing motion will not suspend rendition for appellate jurisdiction purposes when the litigant directed such motion to a non-final order. See Fla. R. Civ. P. 1.530(b); Wagner v. Bieley, Wagner & Ass0cs., Inc., 263 So. 2d 1, 4 (Fla. 1972); Hickox v. Taylor, 933 So. 2d 675, 675 (Fla. 1stDCA 2006). Consequently, Valiente’s Rule 1.530 rehearing motion did not toll the time for rendition. Because the trial court issued the Rule l.540(b) order on April 16, 2012, Valiente’s June 18, 2012 notice of appeal ofthe Rule l.540(b) order is untimely. Accordingly, he did not invoke our interlocutory jurisdiction and we decline to review his arguments challenging the Rule l.540(b) order. A On the other hand, a litigant may request rehearing of an order of dismissal with - prejudice pursuant to Rule 1.530. See Golden Gate Homes, L. C. v. L & G Eng’g Services, Inc., 974 So. 2d 489, 490 (Fla. 3d DCA 2008). Therefore, the 30 day window for Valiente to appeal the dismissal of the eviction complaint did not begin running until the trial court denied the rehearing motion on May 21, 2012. Fla. R. App. P. 9.020(i). Because Valiente filed a notice of appeal on June 18, 2012, we have jurisdiction to review the trial court’s order dismissing Valiente’s eviction complaint with prejudice. I [*4] Page 4 of 10 Case No. 12-245 AP '

DISMISSAL WITH PREIUDIQE

Valiente complains that the trial court improperly dismissed his eviction complaint with prejudice as a sanction for fraud. We affirm the dismissal with prejudice. The law is clear that a trial court has the inherent authority to dismiss actions based on fraud and collusion as well as to strike sham pleadings. Such a power is indispensable to the proper administration ofjustice because no litigant has a right to trifle with the comts. Young v. Curgil, 358 So. 2d 58, 59 (Fla. 3d DCA 1978). We acknowledge the Third District Court ofAppeal also warned that the inherent authority to dismiss an action as a sanction for fraud “is a power, however, which should be cautiously and sparingly exercised and only upon the most blatant showing of fraud, pretense, collusion or other similar wrongdoing.” Id. Nevertheless, we agree with the trial court that Valiente’s actions fell within the narrow range of situations where dismissal with prejudice becomes an appropriate remedy.³ Corp. , 88 So. 3d 349, 352 (Fla. 3d DCA 2012). A dismissal with prejudice for fraud upon the court requires clear and convincing evidence that a party “‘sentiently set in motion some unconscionable scheme calculated to interfere with thejudicial system’s ability impartially to adjudicate a matter[,] ofimproperly influencing the trier offact[,] or unfairly hampering the presentation ofthe opposing pa1ty’s claim or defense.” Id. at 352 (quoting Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998)). If ‘ clear and convincing evidence supports the trial court’s conclusion, we may uphold the determination regardless ofwhether we would have imposed a different sanction.³ The dismissal with prejudice affected only Valiente’s ability to seek rent from Alvarez for themonths ofOctober 201 1 to February 2012. See R. 1, 1 4. Because Valiente admitted to the trial court that he was not entitled to the rent payments any way, he actually suffered no harm due to the dismissal. He was free to seek Alvarez’s eviction or ejectment ifshe did not vacate the premises after May 2012 per the parties’ oral agreement. [*5] Page⁵ of l0 Case No. 12-245 AP The integrity of the civil litigation process depends on truthful disclosure of facts. A system that depends on an adversary’s ability to uncover falsehoods is doomed to failure, which is why this kind ofconduct must be discouraged in the strongest possible way. Although Cox insists on her constitutional right to have her case heard, she can, by her own conduct, forfeit that right. This is an area where the trial court is and should be vested with discretion to fashion the apt remedy. While this court might have imposed a lesser sanction, the question in this case is close enough that we cannot declare the lower court to have abused its discretion. Cox, 706 So. 2d at 47. Here, the trial court heard the parties’ testimony and found that Valiente’s eviction complaint was the product of a fundamental lie because Valiente admitted that Alvarez was not his “tenant” and that she did not owe him $10,000.00 in past due rent (Statement ofEvid.,¹] 12). Valiente further admitted that Alvarez had given him money specifically designated for him to buy the home jointly with her (R. 13). The trial court concluded that Valiente committed a fraud upon the court and Alvarez (Statement ofEvid.,¹] I4). Valiente’s eviction complaint, based on a lie, set in motion a scheme calculated to hinder Alvarez’s ability to present a defense and counterclaim. To understand the serious and natural consequences ofValiente’s fraudulent eviction complaint, we must analyze the statute related to residential evictions. In an action by the landlord for possession of a dwelling unit, ifthe tenant interposes any defense other than payment, . . . the tenant shallpay into the registry ofthe court the accrued rent as alleged in the complaint or as determined by the court and the rent that accrues during the pendency of the proceeding, when due. . . . - Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount ofrent to be paid into the registry within⁵ days, excluding Saturdays, Sundays, and legal holidays, after the date of service ofprocess constitutes an absolute waiver ofthe tenant’s defenses other than payment, and the landlord is entitled to an immediate defaultjudgmentfor removal ofthe tenant with a writ ofpossession to issue without further notice or hearing thereon. If a motion to determine rent is [*6] Page 6 of 10 Case No. 12-245 AP filed, documentation in support of the allegation that the rent as alleged in the complaint is in error is required. § 83.60(2), Fla. Stat. (2012) (emphasis added). The statute is clear and unambiguous, and Florida courts have interpreted accordingly. The statute plainly requires the payment of rent ifthe tenant chooses to assert any defense other than payment, and failure to make the necessary deposit constitutes an absolute waiver allowing for immediate defaultjudgment in favor ofthe landlord. * * =l= The Legislature has provided that failure to post unpaid rent is not merely a waiver; it is an absolute waiver. The landlord is not merely entitled to ajudgment; the landlord is entitled to an immediate judgment. The use of such strong language indicates to this Court that the Legislature was comprehensive in its intentions as to the effect ofthe statute. Stanley v. Quest Intern. Inv., Inc., 50 So. 3d 672, 673-'74 (Fla. 4th DCA 2010) (citation omitted) (emphasis added). See, e.g., First Hanover v. Vazquez, 848 So. 2d 1188, 1190 (Fla. 3d DCA 2003) (“Under this provision, tenants in actions for possession for non-payment ofrent are obligated to pay rent as a condition to remaining in possession irrespective oftheir defenses and counterclaims,” even where tenants allege landlord defrauded them). By alleging falsely that Alvarez owed him $10,000.00 in past due rent, Valiente virtually guaranteed he would obtain a writ ofpossession within five business days unless Alvarez could somehow conjure up $10,000.00 to deposit into the ’registry of the court; an unlikely prospect given that Alvarez had given Valiente $9,530.00 towards the purchase of the house and did not even have the money to rent an apartment (Statement of the Evid., ‘ll 12). Valiente’s scheme would have succeeded if Alvarez’s letter had not caught the trial cou1t’s attention, which promptly put the brakes on Alvarez’s imminent eviction (Statement ofthe Evid., at 1). Valiente’s false allegations in his eviction complaint carried serious consequences. The false allegations paved the way for a default and writ ofpossession in favor ofValiente, which [*7] Page 7 of 10 Case N0. 12-245 AP would have seriously hampered Alvarez’s ability to maintain the temporary possession ofthe premises to which she was entitled. Where a party perpetrates a fraud permeating the entire proceedings, dismissal with prejudice is the appropriate remedy. See Taylor v. Martell, 893 So. 2d 645, 646 (Fla. 4th DCA 2005) (affirming trial court’s dismissal ofcomplaint with prejudice where plaintiff engaged in a series of frauds to aid her lawsuit against the defendants). We affirm the dismissal with prejudice for committing fraud upon the court.

AFFIRMED.

HIRSCH, J., concurs. VERDE, J., dissents. A trial court may “dismiss a case with prejudice where it has been established that a plaintiff has committed fraud upon the court in the prosecution ofthe action.” However, the trial court must exercise such power with great caution, and should reserve this power only for cases “involving ‘the most blatant showing offraud, pretense, collusion or other similar wrongdoing’.” Suarez v. Benihana Nat’! ofFla. Corp. , 88 So. 3d 349, 353 (Fla. 3d DCA 2012). Here, the trial court found that the Appellant’s eviction complaint was fraudulent because, in it, he asserted that the Appellee was his tenant and owed him rent and then later admitted in court that the Appellee was not his tenant and that she did not owe him $9530.00 in past due rent (Statement ofEvid.,¹] 12). The trial court concluded‘ that the Appellant’s actions committed a fraud upon the court and the Appellee (Statement ofEvid.,¹] l4) and dismissed the Appellant’s complaint with prejudice. The court also found that the Appellant promised the Appellee that in exchange for the payments made to him, she would possess an ownership interest in the property. Id. at1l 14. [*8] Page 8 of 10 Case No. 12-245 AP The county court did not find that the Appellant interfered with the court’s ability to impartiallvl aajudicate, improperly influenced the court, or unfairly hindered the Appellee ’s ability to present a defense and c0unterclaim.⁵ Suarez, 88 So. 3d at 353. As such, the county court improperly dismissed the Appellant’s complaint with prejudice as a sanction for fraud where the county court did not find clear and convincing evidence demonstrating a calculated scheme to interfere with thejudicial system. The agreement between the parties can be classified as advance payment ofrent for the property through May 2012. The Appellant filed his eviction complaint before May 2012, and he improperly claim that he was owed rent at the time when he filed the complaint. However, his actions do not rise to the level clear and convincing evidence demonstrating a calculated scheme to interfere with thejudicial system. The complaint could have been dismissed without prejudice allowing the Appellant to file a timely complaint at a future date when the rent was actually due. Moreover, there is nothing in the record to show that the Appellant defrauded the Appellee. On March 8, 2012, the Appellee submitted a letter to the court. This letter asserted details regarding the Appellee and Appellant’s intent to purchase the home together. It explained how the Appellant learned at closing that her name would not appear on title due to an “FHA loan and MMAP” requirements. It further explained that, even though the Appellee knew that See Code of Judicial Conduct, Definitions (defining “impartial” as an “absence of bias or prejudice in favor of, or against, particular parties or classes ofparties, as well as maintaining an open mind in considering issues that may come before thejudge”).⁵ The Statement ofEvidence indicates that the Appellee testified, thus presenting evidence through oral testimony. Additionally, the county court made no factual or legal findings regarding the Appellant hindering the Appellee’s discovery efforts. [*9] Page 9 of 10 Case No. 12-245 AP her name would not appear on the title, she still provided the Appellant $9,530.00 to purchase the home. The parties ended their relationship shortly after closing on the home. They verbally agreed that since the Appellee provided $9,530.00 towards the purchase of the home, she could stay in the home rent-free until May 2012 to recover the money she gave for purchasing the home. _ The Appellee in her counter-claim requested an equitable lien (R. 4-S) or that the Appellant return the money she provided to him for the purchase of the home. The Appellee’s assertion that she is owed money by the Appellant is misleading. According to the parties’ agreement, as narrated by the Appellee’s letter, the Appellant has compensated the Appellee for the money she provided to him and the Appellant is now owed rent for any time she remains on the property after May 2012. To date, the Appellee remains in possession ofthe property and has not paid a single cent towards rent. A dismissal ofthe eviction complaint with prejudice would result in the court awarding the Appellee more interest in the property than she is requesting or is entitled to. A dismissal with prejudice would result in Appellee’s extended possession ofthe property without any recourse available for the Appellant who is the lawful owner of the property. As, such the dismissal ofthe Appellant’s complaint with prejudice such be vacated. h If the Appellee has an equitable interest in the property as she alleged in her answer, the matter should have been transferred to circuit court. In considering whether the trial court possessed jurisdiction based upon the equitable interest assertion raised in the counter-claim, in Toledo v. Escamilla, the district court stated that when the defendant “asserted in her answer that she was not a tenant and that she had an equitable interest in the property, ejectment, not eviction, was the property remedy, and the matter should have been transferred to the circuit [*10] Page 10 of 10 Case No. 12-245 AP court.” 962 So. 2d 1028 (Fla. 3d DCA 2007) (emphasis added). Considering Toledo, the county ‘ court lacks subject matter jurisdiction over this case due to the equitable interest assertion. 962 So. 2d at 1030. The matter should be reversed and remanded to the lower court with instructions to transfer to circuit court; fit’-M O CH Circuit Judge AiELENA VERDE . Circuit Judge rcuit Jud g_ \ l