IN THE CIRCUIT COURT FOR THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA ALL STAR BOXING, INC., CASE NO.

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1 IN THE CIRCUIT COURT FOR THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA ALL STAR BOXING, INC., CASE NO.: CA 31 a Florida corporation, GENERAL JURISDICTION DIVISION v. Plaintiff, SAUL ALVAREZ, an individual, and, GOLDEN BOY PROMOTIONS, INC., a California corporation, Defendants. SAUL ALVAREZ, an individual, v. Counter-Plaintiff/Third-Party Plaintiff, ALL STAR BOXING, INC., a Florida corporation, FELIX ZABALA, JR., an individual, and RAFAEL MENDOZA, an individual, Counter-Defendants. / ORDER ON DEFENDANT SAUL ALVAREZ S RENEWED MOTION FOR DIRECTED VERDICT AND DISMISSAL FOR FRAUD ON THE COURT, PROCEEDING ON A SHAM PLEADING, AND FOR CHANGING HIS TESTIMONY TO AVOID SUMMARY ADJUDICATION THIS CAUSE came before the Court on January 23, 2017 on Defendant Saul Alvarez s Renewed Motion For Directed Verdict and Dismissal for Fraud on the Court, Proceeding on a Sham Pleading, and For Changing His Testimony to Avoid Summary Adjudication ( Defendant s Motion ), and the Court having reviewed Defendant s Motion

2 and the Court file, having heard argument of counsel and being fully advised in the premises, FINDS as follows: LEGAL ANALYSIS Defendant contends that the Court should grant its Renewed Motion for Directed Verdict and dismiss this case because Plaintiff s principal, Felix Zabala ( Zabala ) has perpetrated a fraud upon the court. [A] trial court has the inherent authority to dismiss an action as a sanction when the plaintiff has perpetrated a fraud on the court. Morgan v. Campbell, 816 So. 2d 251, 252 (Fla. 2d DCA 2002); see also Ramey v. Haverty, 993 So. 2d 1014, 1018 (Fla. 2d DCA 2008). A trial court's power to dismiss a case based on fraud should be cautiously and sparingly exercised and then only on the most blatant showing of fraud, pretense, collusion or other similar wrongdoing. Laurore v. Miami Auto. Retail, Inc., 16 So. 3d 862, 864 (Fla. 3d DCA 2009) (quoting Young v. Curgil, 358 So. 2d 58, 59 (Fla. 3d DCA 1978)); see also Tri Star Invs., Inc. v. Miele, 407 So. 2d 292, 293 (Fla. 2d DCA 1981). The test for determining whether dismissal is appropriate is set forth in Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998), which explains: Id. The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense. Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)). When reviewing a case for fraud, the court should consider the proper mix of factors and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at Because dismissal sounds the death knell of the lawsuit, courts must reserve such strong medicine for instances where the defaulting party's misconduct is correspondingly egregious. Id. at

3 Further factors for the Court to consider are whether: (1) the other party has been so prejudiced by the misconduct that it would be unfair to require [the party] to proceed further in the case, (2) the party's misconduct has put an intolerable burden on the court by requiring the court to modify its own docket and operations in order to accommodate the delay, or (3) the court finds it necessary to sanction conduct that is disrespectful to the court and to deter similar misconduct in the future. Webb v. D.C., 146 F.3d 964, 971 (D.C. Cir. 1998)(quoting Shea v. Donohoe Constr. Co., 795 F.2d 1071 (D.C.Cir.1986)); see also Butera v. D.C., 235 F.3d 637, 661 (D.C. Cir. 2001). Because the inherent judicial power of the court must be exercised with restraint and discretion, Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991), a court may use such power to enter a sanction as severe as dismissal or default judgment only if it finds, first, that there is clear and convincing evidence that the fraudulent or bad faith misconduct occurred, and second, that a lesser sanction would not sufficiently punish and deter the abusive conduct while allowing a full and fair trial on the merits. Shepherd v. Am. Broad. Cos. Inc., 62 F.3d 1469, 1472 (D.C. Cir. 1995). Moreover, in order to warrant dismissal, the party s conduct must demonstrate a scheme calculated to evade or stymie discovery of facts central to the case. Bologna v. Schlanger, 995 So. 2d 526, 528 (Fla. 5th DCA 2008); see also Perrine v. Henderson, 85 So. 3d 1210 (Fla. 3d DCA 2012). However, [a] trial court has a duty and an obligation to dismiss a cause of action based upon fraud. Long v. Swofford, 805 So. 2d 882, 884 (Fla. 3d DCA 2001). Florida courts have repeatedly determined that dismissal is the proper sanction where a plaintiff lies under oath, and where those falsehoods go to the heart of the claim and subvert 3

4 the integrity of the process. See Williams v. Miami-Dade Cnty. Pub. Health Trust, 17 So. 3d 859 (Fla. 3d DCA 2009); Austin v. Liquid Distribs. Inc., 928 So. 2d 521 (Fla. 3d DCA 2006); Metro. Dade Cnty v. Martinsen, 736 So. 2d 794 (Fla. 3d DCA 1999). The Court finds that Plaintiff did not commit a fraud upon the Court. Specifically, the Court finds that Zabala s testimony was not false. Zabala was asked questions in deposition and at trial relating to whether he had altered the contract with Defendant Alvarez after Defendant had signed it. Zabala denied ever doing so. Although Defendant Alvarez argues that Zabala s testimony in this regard was not truthful, the Court finds that there is no record evidence to support Defendant Alvarez s position. The record does not contain any contract with missing term or a blank contract that had been signed by Defendant Alvarez. In relation to this issue, it appears that the parties dispute the meaning of what constitutes a blank contract and whether Zabala was authorized to fill in certain terms in the parties Exclusive Promotional Agreement. These disputes are contrasting issues of fact, but simply because Defendant disagrees with Plaintiff does not rise to the level of Plaintiff having perpetrated a fraud on the Court. The Court further finds that Plaintiff has not filed sham pleadings. A pleading is considered a sham when it is inherently false and based on plain or conceded facts clearly known to be false at the time the pleading was made. Upland Dev. of Cent. Fla., Inc. v. Bridge, 910 So. 2d 942, 944 (Fla. 5th DCA 2005). To constitute a sham, a pleading must appear clearly false, as a pretense set up in bad faith, and without color of fact. Ader v. Temple Ner Tamid, 339 So. 2d 268, 270 (Fla. 3d DCA 1976). Defendant Alvarez s claim is that Plaintiff s reference in the Complaint to the parties execution of the Exclusive Promotional Agreement is false because Defendant Alvarez did not sign the document 4

5 which was attached to the Complaint. The timing of the signatures and the insertion of information after Defendant signed the document was raised on several occasions before the Court and was argued before the jury. Again, the Court finds that this issue is one involving a matter of disputed fact, i.e., whether Plaintiff inserted information in the Exclusive Promotional Agreement with or without the authority or knowledge of Defendant Alvarez after Defendant had signed the Exclusive Promotional Agreement. The allegations in the Complaint do not rise to the level of a pleading that is clearly false, as a pretense set up in bad faith, and without color of fact. Id. The Court also finds that the record evidence does not support Defendant Alvarez s argument that evidence was manufactured by Zabala. There were no fact witnesses or expert witnesses who testified as to the authenticity of the documents which Defendant Alvarez claims were manufactured or fabricated. The Court also finds that the documents which Defendant Alvarez relies upon in support of this argument were not critical or material to the issues to be resolved by the jury and, thus the arguments raised by Defendant Alvarez, both at trial and at this stage, relate to matters that are collateral to the issues in dispute. Therefore, it is ORDERED AND ADJUDGED as follows: Defendant s Motion is DENIED. DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 03/16/17. MIGNA SANCHEZ-LLORENS CIRCUIT COURT JUDGE 5

6 No Further Judicial Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT The parties served with this Order are indicated in the accompanying 11th Circuit confirmation which includes all s provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court. Signed original order sent electronically to the Clerk of Courts for filing in the Court file. cc: Alejandro Brito, Esq. Edward Guedes, Esq. Michael Olin, Esq. Joel Perwin, Esq. 6