A mere testimonial discrepancy is ordinarily not enough to sustain a motion to dismiss for fraud.

In this automobile action, the plaintiff complained of continuing migraine headaches because of the accident. The defendant filed a motion to dismiss for fraud on the court. This was granted with prejudice because the plaintiff had a prior medical history of migraines, even though she stated under oath she had never suffered from headaches before this accident. The Fifth District Court reversed the trial court's dismissal of the claim because a "mere testimonial discrepancy is ordinarily not enough" to sustain a motion to dismiss for fraud. Id. (citing Sun v. Aviles, 53 So. 3d 1077 (Fla. 5th DCA 2010)). The standard for a motion to dismiss for fraud on the court was articulated in Cox v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998). Cox stated, "Fraud on the court means a party has sentiently schemed and calculated to interfere with the judicial system's ability to impartially adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense[.]" This Cox standard is a "narrow" and "stringent" one where "inconsistency, nondisclosure, poor recollection, dissemblance and even lying, is insufficient to support a dismissal…and a scheme calculated to evade or stymie discovery of facts central to the case" must be present to sustain such a motion.

Case Law Alert, 3rd Quarter 2013