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In Perez v. SafePoint Insurance Company, 44 Fla. L. Weekly D2756, the Third District Court of Appeal vacated Miami- Dade County’s Circuit Court Order of Dismissal, and remanded the cause to the Trial Court for further proceedings. The Trial Court’s Order of Dismissal found that Ms. Perez had committed Fraud on the Court within her Affidavit drafted and filed by her attorneys in opposition to the Motion for Final Summary Judgment filed by the insurer, SafePoint Insurance Company (“SafePoint”). Ms. Perez filed suit for payment for her claim made to SafePoint for alleged water damage to her home caused by wind on February 5, 2015, and submitted an estimate for repairs to SafePoint. SafePoint investigated Ms. Perez claim and made a coverage determination denying her claim because “the damages were not covered, as damages caused by rain are covered only ‘if a covered peril first damages the building causing an opening in a roof or wall and the rain… enters through this opening.’”

Throughout litigation, SafePoint took Ms. Perez’ deposition, where she testified to suffering from health problems including memory issues that she had been prescribed medication for, and having diabetes. After Ms. Perez’s deposition, SafePoint moved for Final Summary Judgment, in which Ms. Perez’ attorneys filed her affidavit in opposition, in addition to the affidavit of her daughter. Ms. Perez’ affidavit drafted by her attorneys in English relied on her Public Adjuster’s inspection and causation report, and spoke to the qualifications and reputation of her attorneys. SafePoint moved to strike the affidavits of Ms. Perez and her daughter and dismiss the lawsuit for fraud on the court. The Trial Court hearing SafePoint’s Motion to Dismiss for Fraud on the Court held an evidentiary hearing where Ms. Perez was provided with the opportunity to testify. The Trial Court granted SafePoint’s Motion to Dismiss and denied Ms. Perez’s Motion for Rehearing. The Trial Court’s Order of Dismissal noted that Ms. Perez’s affidavit was drafted to misrepresent facts of the case to bolster her claim for the damages to be considered covered under her policy of insurance. Ms. Perez then appealed the Trial Court’s decision.

The Appellate Court relied on precedent, Empire World Towers, LLC v. CDR Creances, S.A.S., 89 So.3d 1034, 1038 (Fla. 3D DCA 2012), holding that “an order of dismissal for fraud on the court is considered a ‘severe sanction,’ appropriate only in `the most egregious cases,’ and under a  ‘narrowed’ abuse of discretion standard.”  Additionally relying on Sky Dev., Inc. v. Vistaview Dev., Inc., 41 So. 3d DCA 2010), where the Third District found that “the movant must establish, by clear and convincing evidence, that the non-moving party ‘sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate [the non-moving party’s claim] by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim of defense.’”

The Court held that ideally, when there is a less severe sanction than a dismissal with prejudice, the Trial Court should explore this alternative while taking into consideration a party’s attorneys contributing to alleged misconduct imputed to their client. The Court found that Ms. Perez’ affidavit was drafted by her counsel and signed by her, although it was obvious she suffered from limited memory, lack of fluency in English, and lack of knowledge of the qualifications of her attorneys and engineering and construction matter. The Court also found that the less severe sanction could have included hearing SafePoint’s filed Motion to Strike Ms. Perez’ affidavit. The Trial Court’s decision provided the Appellate Court with an opportunity to put forth a teaching point and warning to attorneys that ‘a client’s personal knowledge, however imperfect, is not to be gilded, excessively bolstered, or embellished by counsel in the hope of improving a case.’