Bertrand v. BELHOMME
| Decision Date | 19 January 2005 |
| Docket Number | No. 3D02-2547.,3D02-2547. |
| Citation | 892 So.2d 1150 |
| Parties | Gisleine BERTRAND, Appellant, v. Anilus BELHOMME, Appellee. |
| Court | Florida District Court of Appeals |
Brian R. Hersh; and Arthur J. Morburger, Miami, for appellant.
Stephens Lynn Klein, and Robert M. Klein; and Marlene S. Reiss, Miami; and James M. Schiff, Miami, for appellee.
Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
Gisleine Bertrand appeals the dismissal of her complaint with prejudice on the basis that she committed misconduct and fraud in the prosecution of the proceedings before the trial court. We reverse because the trial court relied mostly on fraudulent conduct in connection with a federal proceeding to dismiss the complaint with prejudice which would not support a dismissal of the state court action.
At issue in the underlying case is Bertrand's ownership of an eight million dollar lottery prize the Florida Lottery awarded on October 2, 1999. In her multi-count complaint filed against appellant Anilus Belhomme, Bertrand's former husband whom she married in the Republic of Haiti in November of 1999, Bertrand alleged that she and Belhomme had orally agreed to share equally in any Florida lottery proceeds which they won; jointly selected the winning lottery numbers; and together purchased the winning lottery ticket. Bertrand also alleged that Belhomme convinced her to permit him to print his name and address on the back of the lottery ticket with the understanding that Bertrand would always be a one-half owner of the lottery winnings.
In her amended complaint, Bertrand added a count to her initial complaint for breach of a joint venture agreement. She alleged that Belhomme had solicited her to allow him to serve as trustee of the lottery proceeds.
In December of 1998, Bertrand consulted with a bankruptcy attorney and on July 12, 2000, she filed for bankruptcy. In the bankruptcy proceeding, Bertrand did not disclose her lottery claim as an asset. She also failed to mention the lottery claim during her appearance at a subsequent bankruptcy court creditor's meeting. Bertrand later testified that she did not mention her lottery claim to her bankruptcy attorney because she did not believe that it was important. Bertrand eventually amended her bankruptcy petition to list the lottery claim as a contingent asset.
During the pendency of the underlying action filed against Belhomme, Bertrand filed a complaint for divorce against Pierre Sajous. In that divorce proceeding, Bertrand disclosed her lottery claim in her financial affidavit.
Belhomme twice moved to dismiss Bertrand's complaint arguing that Bertrand was committing a fraud upon the court. The trial court denied Belhomme's first motion to dismiss, but dismissed Bertrand's claim for punitive damages with prejudice. The trial court subsequently granted Belhomme's second motion to dismiss and to strike, and dismissed Bertrand's complaint with prejudice.
The record below contains numerous filings the most notable of which are Bertrand's affidavits of June 14, 2002 and July 24, 2001, Bertrand's errata sheets to her deposition, and Bertrand's deposition testimony of June 20, 2001. In her deposition of June 20, 2001, Bertrand swore that she told Belhomme to place his name on the back of the lottery ticket, "not to be tricked by the lottery ... because it's possible [that the Florida Lottery] may change [the ticket], they may lose it."
In its June 3, 2002 order that dismissed Bertrand's amended complaint, the trial court made numerous findings. The court's findings include various references to Bertrand's bankruptcy court proceeding, as well Bertrand's divorce proceeding. The trial court referenced Bertrand's consultations with her bankruptcy attorney; dealings with her bankruptcy attorney; failure to list her claim to the lottery winning in her bankruptcy petition; and Bertrand's appearance at the bankruptcy court. The court also mentioned Bertrand's complaint for divorce filed against Pierre Sajous in which she listed her claim to the lottery winning in her financial affidavit.
The trial court's findings also include the underlying proceeding. The court reviewed Bertrand's initial and amended complaints, response to interrogatories, and Bertrand's testimony. The trial court pointed to Bertrand's allegation in her original complaint that Belhomme tricked her into allowing him to sign the back of the lottery ticket, and Bertrand's allegation in her amended complaint that Belhomme solicited her to allow him to serve as trustee of the lottery winning. The court also noted that Bertrand failed to disclose the name of her bankruptcy attorney as an individual with knowledge of her financial situation in her response to interrogatories, as well as to Bertrand's testimony in which she stated that she had asked Belhomme to sign the lottery ticket.
The sanction of dismissal with prejudice due to fraud upon the court has long been an available and often favored remedy for a party's misconduct in the litigation process. This Court has repeatedly held that "a party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve her ends." See Metropolitan Dade County v. Martinsen, 736 So.2d 794, 795 (Fla. 3d DCA 1999)
; O'Vahey v. Miller, 644 So.2d 550, 551 (Fla. 3d DCA 1994). See also Cabrerizo v. Fortune Int'l Realty, 760 So.2d 228 (Fla. 3d DCA 2000). However, because dismissal is the most severe of all possible sanctions, it should be employed only in extreme circumstances. See Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992); Bird v. Hardrives of Delray, Inc., 644 So.2d 89, 90 (Fla. 4th DCA 1994).
An appellate court reviews a trial court's imposition of sanctions under an abuse of discretion standard of review. See Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)
2000). Although the trial court has wide discretion in the imposition of sanctions, the court's discretion is not unlimited. See Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998)( that the court should take into consideration a mixture of factors and carefully balance the court's policy that favors the adjudication of claims on the merits).
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