Dismissal for Fraud on the Court Not Available to Resolve Jury Questions – Herman v. Silver

In this medical malpractice case, a husband sued after his wife died allegedly from kidney failure after the defendant doctor performed surgery. At the trial, the husband testified about various issues, including his wife’s active lifestyle before the surgery, and date of the onset of kidney problems. After the trial, the husband quarrelled with his daughter, who then advised defense counsel that they both had “lied” while testifiying at the trial regarding issues in the case. She also advised about the existence of a diary that the husband failed to produce in response to a discovery request; the diary, among other things, contradicted the husband’s testimony regarding the onset of the kidney problems. The trial court dismissed the case after an evidentiary hearing. The appellate court reversed, holding: “The evidentiary conflicts regarding Mrs. Herman’s activity levels presented a classic jury question, and hardly amounted to clear and convincing evidence that the plaintiff undertook a scheme calculated to interfere with the judicial system’s ability to impartially adjudicate the matter.”

Herman v. Silver, 38 Fla. L. Weekly D908a (Fla. 4th DCA Apr. 24, 2013).

Denial of Fee Award Due to Insufficient Expert Testimony – Raza v. Deutsche Bank

In this foreclosure case, the trial court dismissed the lender’s case for failure to comply with a court order.  The borrower, Raza, moved for prevailing party attorneys’ fees under a flat-fee agreement.  The trial court denied the motion because the expert affidavit failed to state a reasonable number of hours incurred in the case.  The appellate court affirmed, holding, “We have no transcript of the fee hearing, the order on review is not facially erroneous, and Mr. Raza’s proof failed to demonstrate a reasonable fee.”

Raza v. Deutsche Bank, 37 Fla. L. Wkly D2243c (Fla. 2d DCA Sept. 1, 2012)

Dismissal for Lack of Prosecution – Spencer v. EMC Mortgage Corporation

In this mortgage foreclosure case, the trial court issued a 60-day notice of lack of prosecution.  Although counsel received a copy of the notice within the 60-day period, plaintiff did not respond within this period or show good cause in writing at least five days before the hearing why the action should remain pending.  The court dismissed the case for lack of prosecution despite counsel’s disputed claim that notice was received late within the 60-day period.  The appellate court affirmed, holding further that the “‘no notice received’ exceptions detailed in Deutsche Bank National Trust Co. v. Basanta, 88 So. 3d 216 (Fla. 3d DCA 2011), and Boosinger v. Davis, 46 So. 3d 152, 154 n.2 (Fla. 2d DCA 2010),” did not apply.

Spencer v. EMC Mortgage Corporation, 37 Fla. L. Weekly D2068a (3d DCA Aug. 29, 2012)

Reversal of Dismissal as Sanction for Litigation Misconduct – Deutsche Bank National Trust Company v. Cagigas

In this case, the trial court dismissed the bank’s complaint with prejudice as a sanction for “misconduct” during the litigation.  The order did not make express findings as to the nature of the misconduct.  Citing Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), the appellate court remanded to the trial court to consider the following “Kozel factors”: “1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.”

Deutsche Bank National Trust Company v.  Cagigas, 37 Fla. L. Weekly D903a (Fla. 3d DCA Apr. 18, 2012)