A serious penalty for perjury.

Regardless of how it is handled by the federal government, Florida courts already have the tools deal severely with perjury in civil litigation.

This article was planned and drafted well before the national focus on perjury involving the President of the United States, so its timeliness is just by chance. Regardless of how this matter is handled by the highest echelons of the federal government, Florida courts already have the tools to deal severely with perjury in civil litigation. The recent case of Cox v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998) is an illustration of the severity of the potential remedies.

In Cox, the trial court invoked a remedy for perjury apparently long known to the personal injury bar, and one which should be used in all areas of litigation--that is, dismissal of the perjurer's claim with prejudice. The Fifth District in Cox began by articulating the public policy supporting the dismissal: "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 of conduct must be discouraged in the strongest possible way."[1]

The trial court had dismissed the plaintiff's legal malpractice case due to fraud (perjury) perpetrated by the plaintiff during discovery. Ms. Cox had made false statements under oath regarding her name, driver license details, Social Security number, and prior injuries. The dismissal was upheld on appeal because of the pervasiveness of the fraud which was characterized by the Cox court as "calculated to evade or stymy discovery on issues central to the case."[2]

Cox is in accord with substantial additional authority, including the recent cases of Kornblum v. Schneider, 609 So. 2d 139 (Fla. 4th DCA 1992), and Savino v. Florida Drive In Theatre Management, Inc., 697 So. 2d 1011 (Fla. 4th DCA 1997). In Savino, the Fourth District's ruling echoed Cox: "Appellant lied about matters which went to the heart of his claim on damages. These repeated fabrications undermine the integrity of his entire action. We believe that the trial court has a right and obligation to deter fraudulent claims from proceeding in court."

A trial court has the inherent authority to dismiss an action when a party has perpetrated a fraud on the court,[3] and there are, of course, other remedies besides dismissal. Perjury is, after all, a crime and the court may send the record to the state attorney for investigation. Alternatively, the trial court may strike testimony or pleadings, or hold the perjurer in contempt.[4]

The analysis for a trial court dealing with perjury is to determine how pervasive, extreme, and material the perjury is and to determine whether the extraordinary measure of dismissal is justified.[5] The degree of misconduct needed to support dismissal is high. It has been defined as perjurious conduct, so repeated or egregious as to corrupt and compromise the process to the point that the court is prejudiced in its ability to impartially adjudicate the claim.[6] Appellate opinions dealing with this issue speak of "aggravated situations"[7]; "repeated lies"[8]; "serious misconduct"[9]; "egregious misconduct"[10]; and fraud "permeating the entire proceeding."[11]

A second consideration in determining whether dismissal is justified is whether the perjury is material to the resolution of an ultimate claim, or only goes to a collateral or tangential matter.[12] Where the fraud or other misconduct pertains only to a portion of a claim, dismissal of the unaffected claim may be too severe a sanction.[13] For example, in the case of Parham v. Kohler, 134 So. 2d 274 (Fla. 3d DCA 1961), the personal injury plaintiff lied about the existence of a marriage in order to create a consortium claim for the putative husband. The Parham court held that the perjury was material only to the consortium claim, that only the consortium claim should have been dismissed, and suggested less severe sanctions than dismissal of the entire case. This definition and division of issues and claims may be possible in marital cases in which separate and distinct claims are at issue, such as child custody and financial issues. Family law judgments, however, are hydraulic models of interrelated financial matters in which alimony, child support, equitable distribution, attorneys' fees, custodial arrangements, and other issues are inextricably intertwined and balanced.

In any case, the materiality of the perjury may not always be a determinative factor in imposing the ultimate sanction of dismissal. In O'Vahey v. Miller, 644 So. 2d 550 (Fla. 3d DCA 1994), the false statements did not directly touch on the cause of action, but dismissal was still warranted when there was "serious misconduct" consisting of repeated lies uncovered only by "assiduous effort" on the part of the opposing side.

A troublesome and related issue, particularly in family law cases, is defining the line between inaccuracy, sloppiness, persuasive interpretation of financial information, and outright false statements. The standard of proof is high as Cox holds that there must be clear and convincing evidence of a calculated, unconscionable scheme of deception prior to imposing the sanction of dismissal. Other cases have required simply a clear showing of fraud, pretense, or collusion.[14]

The standard of review for the imposition of sanctions generally, including dismissal, is an abuse of discretion standard.[15] Because of the severity of the sanction, the judiciary is admonished to "carefully adhere to established due process, adversarial practice, and evidentiary rules in conducting an inquiry into such charges."[16]

Dissolution of marriage cases are particularly appropriate settings for the sanction of dismissal, or the striking of certain claims or defenses, for perjury. Lawyers, judges, and even clients become inured to half-truths, misrepresentations, and deceptive omissions to the point at which they jadedly anticipate that a fair portion of the factual presentation will be, if not outright fabrication, at least deceitful to some degree. Judges are prone to view financial affidavits with justifiable skepticism. Nonetheless, family law courts have long emphasized the importance of truthfulness in financial affidavits, and have been quite clear about the seriousness with which they expect the affidavit to be taken. Parties have an affirmative duty to submit accurate financial affidavits, and the courts have an "absolute right" to rely on the truthfulness of the information contained therein.[17] Moreover, if a judgment is predicated on false financial statements encompassed in an affidavit, there is a statutory ground for setting aside the final judgment.[18]

Can trial courts be persuaded to use the Draconian remedy of total dismissal in the area of discovery? Perhaps. Generally, the cases supporting the striking of pleadings for discovery violations involve repeated egregious misconduct, and even then, the courts are most reluctant to impose the ultimate sanction of dismissal. However, there is substantial authority for such a move. For example, in Mercer v. Raine, 443 So. 2d 944 (Fla. 1984), the Florida Supreme Court held that the striking of pleadings or entry of a default judgment were appropriate sanctions when discovery violations were accompanied by "deliberate and contumacious disregard of the court's authority," "bad faith, wilful disregard ... gross indifference," or "conduct which evinces deliberate callousness."[19] At some point, noncooperation and nondisclosure cross the line into deception and falsity which destroy the integrity of the judicial system, and the claimant forfeits his or her right to proceed.

Dismissal in the discovery process has even been supported in the absence of a prior order compelling the discovery. In Fearns v. Fearns, 336 So. 2d 1263 (Fla. 4th DCA 1976), the trial court struck the wife's pleadings when she failed to answer interrogatories, although no prior order compelling her to answer had been entered, and the Fourth District affirmed. Judge Downey noted in his concurring opinion that such a sanction, extreme though it might be, was fully authorized by Florida Rule of Civil Procedure 1.380(d).[20] This case is somewhat aberrational, but is very sobering authority when cited in a motion to compel.

In summary, the courts take with great seriousness misrepresentations of fact, whether in trial or deposition testimony, or in financial or other affidavits, and the practitioner encountering egregious deceptive and obstructionist behavior by the opponent should file a motion to strike and dismiss the entire case with prejudice, even in the early stages of litigation. At worst, future statements and disclosures will be made with more sobering attention to truth, and at best, the dishonest litigant who should not be entitled to use the court system will be shown the door.

[1] Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th D.C.A. 1998).

[2] Id.

[3] Kornblum v. Schneider, 601 So. 2d 139 (Fla. 4th D.C.A. 1992).

[4] See Parham v. Kohler, 134 So. 2d 274 (Fla. 3d D.C.A. 1961), in which these actions were suggested in lieu of the ultimate sanction of dismissal.

[5] Cox, 706 So. 2d 43.

[6] Savino v. Florida Drive In Theatre Management, Inc., 637 So. 2d 1011 (Fla. 4th D.C.A. 1997).

[7] Johnson v. Landmark First National Bank, 415 So. 2d 161 (Fla. 4th D.C.A. 1982).

[8] O'Vahey v. Miller, 644 So. 2d 550 (Fla. 3d D.C.A. 1994), review denied, 654 So. 2d 919 (Fla. 1995).

[9] Mendez v. Blanco, 665 So. 2d 1149 (Fla. 3d D.C.A. 1996).

[10] Cox, 706 So. 2d 43.

[11] Savino, 637 So. 2d 1011.

[12] Within the context of criminal perjury, a material matter is broadly defined as any subject with the potential to affect the course or outcome of the proceeding. FLA. STAT. [sections] 837.02(1)(1997). See also Soller v. State, 666 So. 2d 992 (Fla. 5th D.C.A. 1996). The elements of perjury are the making of a false statement, which the maker does not believe to be true, under oath, in regard to any material matter. See FLA. STAT. [subsections] 837.012, 837.02 (1997).

[13] Kornblum, 601 So. 2d 139.

[14] Young v. Curgili, 358 So. 2d 58 (Fla. 3d D.C.A. 1978); Tri Star Investments, Inc. v. Miele, 407 So. 2d 292 (Fla. 2d D.C.A. 1981).

[15] Mercer v. Raine, 443 So. 2d 944 (Fla. 1983).

[16] Miele, 407 So. 2d 292; Bird v. Hardrives of Delray, Inc., 644 So. 2d 89 (Fla. 4th D.C.A. 1994).

[17] Yohanan v. deClaire, 421 So. 2d 551 (Fla. 4th D.C.A. 1982), quashed on other grounds sub nom. DeClaire v. Yohanan, 453 So. 2d 375 (Fla. 1984); Weinstein v. Weinstein, 447 So. 2d 309 (Fla. 4th D.C.A. 1984).

[18] FLA. R. CIV. P. 1.540 (1992) (eliminates the one-year statute of limitations for setting aside a final judgment based on fraudulent financial affidavits in marital cases; subsequently adopted as part of Florida Family Law Rule of Procedure 12.540.)

[19] Mercer, 443 So. 2d at 946; Commonwealth Savings & Loan Assoc. v. Tubero, 569 So. 2d 1271 (Fla. 1990), rehearing denied (reaffirming Mercer). See also Ferrante v. Waters, 383 So. 2d 749 (Fla. 4th D.C.A. 1980); and Cem-A-Care of Florida, Inc. v. Automated Planning Systems, Inc., 442 So. 2d 1048 (Fla. 4th D.C.A. 1983).

[20] Fearns v. Fearns, 336 So. 2d 1263 (Fla. 4th D.C.A. 1976). See also Figgie International, Inc. v. Alderman, 698 So. 2d 563 (Fla. 3d D.C.A. 1997) (entry of default judgment warranted even where no order violated, where defendant in personal injury action intentionally destroyed relevant discovery documents); but see Neal v. Neal, 636 So. 2d 810 (Fla. 1st D.C.A. 1994) (dismissal inappropriate where disputed issues of fact regarding willfulness of party in failing to produce records existed).

William H. Stolberg is a partner in the Ft. Lauderdale firm of Stolberg and Pence. He practices solely in the area of family law. Mr. Stolberg is board certified in marital and family law and is a member of the American Academy of Matrimonial Lawyers and of the Family Law Section of the Broward County Bar Association. He received his B.S. from Cornell University in 1968 and his J.D. from the University of Florida College of Law in 1973.

Kyle D. Pence is a partner in the law firm of Stolberg and Pence, Ft. Lauderdale. He practices solely in the area of family law. Mr. Pence is board certified in marital and family law. He received his B.A. from Northwestern University in 1975 and his J.D. from Nova University in 1986. Mr. Pence is vice chair of the Family Law Section of the Broward County Bar Association.

This column is submitted on behalf of the Family Law Section, Jane L. Estreicher, chair, and Sharon O. Taylor, editor.