\

DISTRICT COURT OF APPEAL OF ;FLORIDA

FOURTH DISTRICT

ROMANPINO, APPEAL NO: 4DIO-378

L.T. Case No.: 50 2008 CA 031691
AppellantlPetitioner XXXXMB

v.

THE BANK OF NEW YORK

l\ffiLLONFIKIA THE BANK OF NEW
YORK AS TRUSTEE FOR THE NOTICE TO INVOKE
CERTIFICATEHOLDERS CWALT,. DISCRETIONARY
INC. ALTERNATIVE LOAN TRUST JURISDICTI~
o:J r .....,
2006-0C8, MORTGAGE _< f'T1 9 --'I
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SERIES 2006-0C8, et aI., UJ
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Appellee/Respondent, :.t: "'0 :r;O
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NOTICE IS GIVEN that AppellantiPetitioner, ROMAN ~INcF,invl:1les the

discretionary jurisdiction of the Supreme Court to review the decision of this Court

rendered March 30, 2011, upon the granting of a timely motion for clarification en

bane of the decision issued by this Court on February 2, 2011, en bane.

The Supreme Court has discretionary jurisdiction under Fla. R. App. P.

9.030(a)(2)(A)(v) and Fla. R. App. P. 9.120 because a majority of the judges of

........

this Court certified that the decision in this case passed upon a question of great
.......
public importance.
 I hereby certify fl1at the above and foregoing is a
true copy of instrument filed in my oOice.
MARILYN BEUTTENMULLER, CLERK.
DISTRICT COURT OF APPEAL OF
FLORlDA,FOU H DISTRICT

-. .­
~;
/l!-' :"
APPEAL NO: 4DIO-378

Copies ofthis Court's decision granting clarification en bane, the Appellee's

motion for clarification, and the Court's previous decision en bane are attached to

this notice as exhibits "A," "B," and "C," respectively.

Dated: April 7, 2011. ICE LEGAL, P.A.

Counsel for Appellant
1015 N. State Road 7, Suite D
Royal Palm Beach, FL 33411
Telephone(561 )729-0530
Facsimile (866) 507-9888

BY:2~
ENRIQUE NIEVES
Florida Bar No. 41736

CERTIFICATE O.F SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

served by mail this April 7, 2011 to all parties on the attached service list.

ICE LEGAL, P.A.

Counsel for Appellant
1015 N. State Road 7, Suite D
Royal Palm Beach, FL 33411
Telephone(561 )729-0530
Facsimile (866) 507-9888

By: ~n
~~NIEVES
Florida Bar No. 41736

 APPEAL NO: 4D10-378

SERVICE LIST

Forrest G. McSurdy, Esq.

Katherine E. Giddings

LAW OFFICES OF DAVID J.

Nancy M. Wallace

STERN,P.A.
AKERMAN SENTERFITT

900 South Pine Island Road Suite 400

106 East College Avenue, Suite 1200

Plantation, FL 33324-3920
Tallahasee, FL 32301

Telephone: (954) 233-8000

Telephone: (850) 425-1626

Fax: (850) 325-2526

katherine.giddings@akerman.com

nancy. wallace@akerman.com

MORTGAGE ELECTRONIC

REGISTRATION SYSTEMS, INC.

clo Electronic Data Systems

Corporation

3300 SW 34th Ave., Suite 101

Ocala, FL 34474

1[-:­
"

DISTRICT COURT OF ApPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT
January Tenn 2011

ROMANPINO,

Appellant,
v.
THE BANK or ow YORK MELLON,

Appellee.
No. 4010-378
[March 30, 2011}
BNBANc

ON MOTION JOR CURlI7c.tTION

WARNER,J.

We grant the motion for clarification, withdraw our previously issued

opinion and substitute the following in its place.

The defendant in a mortgage foreclosure action filed by BNY Mellon appeals

a trial court's denial of his motion under Florida Rule of Civil Procedure
1.540(b) to vacate a voluntary dismissal. The notice was flied after the
defendant moved for sanctions against the plaintiff for filing what he alleged
was a fraudulent assignment of mortgage. Because the notice of voluntary
dismissal was filed prior to the plaintiff obtaining any affirmative relief from the
court, we affirm the-trial court's order.

BNY Mellon commenced an action to foreclose a mortgage against the

defendant. The mortgage attached to the complaint specified another entity,
Silver State Financial Systems, as lender and still another, Mortgage Electronic
Registration Systems, as mortgagee. The complaint alleged that BNY Mellon
owned and held the note and mortgage by assignment, but failed to attach a
copy of any document of assignment. At the same time, it alleged the original
promissory note itself had been "lost, destroyed or stolen." The complaint was
silent as to whether the note had ever been negotiated and transferred to BNY
Mellon in the manner provided by law, 1

1 See § 673.2011(2), Fla. Stat. (2010) (if instrument is payable to an identified person
-negotiation requires transfer of possession of the instrument" and endorsement by

Exhibit A
 The defendant initially sought dismissal for failure to state a cause of action,
arguing that in light of the claim of a lost instrument, the absence of an
assignment of mortgage was a critical omission. BNY Mellon responded by
amending the complaint only to attach a new unrecorded assignment, which
happened to be dated just before the original pleading was .filed.
In response to this amendment, defendant moved for sanctions. He alleged
that the newly produced document of assignment was false and had been
fraudulently made, pointing to the fact that the person executing the
assignment was employed by the attorney representing the mortgagee, and the
commission date on notary stamp showed that the document could not have
been notarized on the date in the document. The defendant argued that the
plaintiff was attempting fraud on the court and that the court should consider
appropriate sanctions, such as dismissal of the action with prejudice.
Concurrent with the filing of this motion, the defendant scheduled depositions
of the person who signed the assignment, the notary, and the witnesses named
on the document - all employees of Florida counsel for BNY Mellon - for the
following day. Before the scheduled depositions, BNY Mellon filed a notice of
voluntary dismissal of the action.

Five months later, BNY Mellon refiled an identical action to foreclose the
same mortgage. The new complaint no longer claimed the note was lost and
attached a new assignment of mortgage dated after the voluntary dismissal. In
the original, dismissed action, the defendant filed a motion under rule l.S40(b),
seeking to strike the voluntary dismissal in the original action on the grounds
of fraud on the court and for a dismissal of the newly filed action as a
consequent sanction, requesting an evidentiary hearing. The trial court denied
the motion without an evidentiary hearing, essentially holding that, because
the previous action had been voluntarily dismissed under rule 1.420, the court
lacked jurisdiction and had no authority to consider any relief under rule
l.S40(b).

We affirm the trial court's refusal to strike the notice of voluntary dismissal.
Neither rule 1.S40(b) nor the common law exceptions to that rule allow a
defendant to set aside the plaintirrs notice of voluntary dismissal where the
plaintiff has not obtained any affirmative relief before dismissal.

Rule 1.420(a) permits a plaintiff to dismiss an action without order of the

court "at any time" before a motion for summary judgment is heard or before
retirement of the jury or submission to the court if the matter is tried non-jury.
"Our courts have consistently construed this rule as meaning that, at any time
before a hearing on a motion for summary judgment, a party seeking

holder).

2
,i(- .

affirmative relief has nearly an absolute right to dismiss his entire action once.
without a court order, by serving a notice of dismissal." Ormond Beach Assocs.
Ltd. fl. Citation Mortg., Ltd., 835 So. 2d 292, 295 (Fla. 5th DCA 2002); see also
Meyer v. Contemporary Broadcasting Co., 207 So. 2d 325, 327 (Fla. 4th DCA
1968). The courts have carved out narrow exceptions to this entitlement:

The only recognized common law exception to the broad scope of

this rule is in circumstances where the defendant demonstrates
serious prejudice, such as where he is entitled to receive
affirmative relief or a hearing and disposition of the case on the
merits, has acquired some substantial rights in the cause, or
where dismissal is inequitable. See Romar Int#l, Inc. v. Jim
Rathman Chevrolet/CadUlac, Inc., 420 So. 2d 346 (Fla. 5th DCA
1982); Visoly v. Sodek, 602 So. 2d 979 (Fla. 3d DCA 1992).

Ormond, 835 So. 2d at 295. In Visoly, the court granted a motion to strike the
complaint as a sham. Finding that rule 1.150(a) operated much like a motion
(or summary judgment, the court concluded that the plaintiff could not
voluntarily dismiss his complaint pursuant to rule 1.420(a) where the trial
court had granted the motion to strike, which was equivalent to the granting of
a motion for summary judgment.

The most applicable common law exception to the right to a voluntary

dismissal was applied in Select Builders of Florida, Inc. v. Wong, 367 So. 2d
1089 (Fla. 3d DCA 1979). There, the court affirmed the trial court's striking of
a notice of voluntary dismissal where the plaintiff sought to perpetrate a fraud
by the filing of the notice of voluntary dismissal. Select Builders had filed suit
to expunge an injunction against a condominium developer, granted in Federal
Court in Illinois. and improperly filed in the public records of Dade County.
The trial court issued an order expunging the document and enjoining the
filing of any other like documents without domesticating the judgment in
Florida. Later, it was discovered that Select Builders had perpetrated a fraud
upon the court in obtaining the order expunging the document. The trial court
vacated its prior order, and the appellees moved for sanctions and fees. The
court also ordered Select Builders to take steps to preserve the status quo and
to make payment of monies it received in connection with the sale of some of
the property subject to the injunction to a third party. Select Builders then
filed a notice of voluntary dismissal, which the trial court struck to retain
jurisdiction over the case.

The appellate court affirmed. concluding that the court correctly retained
jurisdiction to prevent a fraud on the court. "The plaintiff had obtained the
affirmative relief it sought, its actions in the cause in the trial court may have
been fraudulent on the court and it certainly was within its inherent power (as
an equity court) to protect its integrity." Id. at 1091. The court distinguished

other cases in which the plaintiffs right to take a voluntary dismissal was
deemed absolute: "First, the plaintiff in the cited cases had not received
affirmative relief from an equity court and, secondly, no question of fraud on
the court was involved." Id.

In Select Builders the plaintiff obtained affirmative relief by the granting of

the suspect injunction, and it had obtained such relief by fraud. Comparing
the facts of Select Builders to this case, we find that the BNY Mellon had not
obtained any type of affumative relief. Even if the assignment of mortgage was
"fraudulent" in that it was not executed by the proper party, it did not result in
any relief in favor of BNY Mellon. Select Builders is thus distinguishable from
the present case. In Bevan v. D~lessandro, 395 So. 2d 1285, 1286 (Fla. 2d
DCA 1981), the court likewise distinguished Select Builders on the grounds
that the "plaintiff had received affirmative relief to which he was not entitled
and sought to avoid correction of the trial court's error by taking a voluntary
dismissal." No such circumstance is present in this case.

The appellant argues that rule 1.540(b) also provides a method to seek relief
from a notice of voluntary dismissal. We disagree that the defendant!appellant
may utilize that rule where the defendant has not been adversely affected by
the voluntary dismissal. Rule 1.540(b) allows a court to relieve a party from a
"final judgment, decree, order, or proceeding" based upon any of five grounds
set out in the rule: (1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence; (3) fraud or other misconduct of an adverse party;
(4) that the judgment or decree is void; or (5) that the judgment or decree has
been satisfied or released. A notice of voluntary dismissal constitutes a
"proceeding" within the meaning of the rule. See MiUer v. Fortune Ins. Co., 484
So. 2d 1221, 1224 (Fla. 1986). Therefore, the rule may be invoked, even
though for all other purposes the trial court has lost jurisdiction over the
cause. Id. Indeed, in Shampaine Industries, Inc. u. South Broward Hospital
District, 411 So. 2d 364, 368 (Fla. 4th DCA 1982), approved by the supreme
court in Miller, we held: "Rule 1.540(b} may be used to afford relief to all
litigants who can demonstrate the existence of the grounds set out in the
Rule."

The rule, however, is limited to relieving a party of a judgment, order or

proceeding. "Relieve" meanS "[t]o ease or alleviate (pain, distress, anxiety,
need, etc.) ... to ease (a person) of any burden, wrong, or oppression, as by
legal means." Ths Random House Dictionary of the English Language 1212
(1967). A defendant may obtain such "relief" when a plaintiff has obtained a
ruling that has adversely impacted the defendant. Here, the defendant has not
been adversely impacted by a ruling of the court. The fact that a defendant
may have incurred attorney's fees and costs is not an adverse impact
recognized as meriting relief. See Servo Experts, LLC u. Northside Air
Conditioning & Elec. Servo Inc., 2010 WL 4628567 (Fla. 2d DCA 2010).

Therefore, because the defendant has not suffered an adverse ruling or impact
from the notice of voluntary dismissal, he is not entitled to seek relief pursuant
to the rule.

The dissent is certainly correct that a court possesses the authority to

protect judicial integrity in the litigation process. However, the cases cited in
support of a court exercising such authority all involved the court granting a
motion fOT involuntary dismissal where the plaintiff had engaged in deceitful
conduct during a still pending case. See Ramey lJ. Haverty Fum. Co., 993 So.
2d 1014, 1020 (Fla. 2d DCA 2008); McKnight v. Evancheck, 907 So. 2d 699,
700 (Fla. 4th DCA 2005); Morgan II. Campbell, 816 So. 2d 251, 253 (Fla. 2d
DCA 2002). In each of those proceedings, the defendant moved for the
sanction of dismissal of an ongoing proceeding based upon "fraud on the
court." That term has been described as follows:

A "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 or unfairly hampering the presentation of the
opposing party's claim or defense.

Aoude II. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). Dismissal is a
remedy to be used only in the most extreme cases, as "[gJenerally speaking, ...
allegations of inconsistency, nondisclosure, and even falseness, are best
resolved by allowing the parties to bring them to the jury's attention through
cross examination or impeachment, rather than by dismissal of the entire
action." Granados II. Zehr, 979 So. 2d 1155, 1158 (Fla. 5th DCA 2008)
(emphasis added).

Here, we do not view it as an appropriate exercise of the inherent authority

of the court to reopen a case voluntarily dismissed by the plaintiff simply to
exercise that authority to dismiss it, albeit with prejudice. Only in those
circumstances where the defendant has been seriously prejudiced, as noted in
Romar International, should the court exercise its inherent authority to strike a
notice of voluntary dismissal. The defendant in this case does not allege any
prejudice to him as a result of the plaintiWs voluntary dismissal of its first
lawsuit. Indeed, he may have benefitted by forestalling the foreclosure.

The appropriate procedure is to follow Rule 1.420. Upon the voluntary

dismissal, Pino would be entitled to his costs and possibly his attorney's fees.
See Fleet Seros. Corp. lJ. Reise, 857 So. 2d 273 (Fla. 2d DCA 2003). The court
can require payment as a precondition to the second suit. See Fla. R. Civ. P.
1.420(d). Moreover, a referral of the appellee's attorney for a violation of the

 ---------

Code of Professional Responsibility for filing the complaint with the alleged
false affidavit is in order.::!

We conclude that this is a question of great public importance. as many,

many mortgage foreclosures appear tainted with suspect documents. The
defendant has requested a denial of the equitable right to foreclose the
mortgage at all. If this is an available remedy as a sanction after a voluntary
dismissal, it may dramatically affect the _mortgage foreclosure crisis in this
State. Accordingly we certify the following question to the Florida Supreme
Court as of great public importance:

DOES A TRIAL COURT HAVE JURISDICTION AND AUTHORITY

UNDER RULE 1.540(b), Fla. R. Civ. P., OR UNDER IT'S INHERENT
AUTHORrrY TO GRANT RELIEF FROM A VOLUNTARY DISMISSAL
WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE
PROCEEDINGS BUT NO AFFIRMATIVE RELIEF ON BEHALF OF THE
PLAINTIFF HAS BEEN OBTAINED FROM THE COURT?

Affirmed.
GROSS, C.J., STEVENSON, TAYLOR, MAY, DAMOORGIAN, CIIlliN, GERBER, LEVINE and

CONNER, JJ., concur.

HAZOURI, J., recused.

PoLEN, J., dissents with opinion.

PoLEN, J., dissenting. 3

Rule 1.420(a)(l) allows a plaintiff to voluntarily dismiss a case simply by

serving a notice at any time before trial or hearing on summary judgment.
Initially in Randle~Eastem Ambulance Service fl. Vasta, 360 So. 2d 68 (Fla.
1978), the court held that such a dismissal took the case out of the power of
the coUrt for all purposes, explaining:

"The right to dismiss one's own lawsuit during the course of

trial is guaranteed by Rule 1.420{a), endowing a plaintiff with
unilateral authority to block action favorable to a defendant which

2 Notably, appellee's attomeys on appeal, Akerman Senterfitt, were not involved in the

proc~dings giving rise to the allegations of misrepresentation and fraud upon the

court.

3 This dissent was actually written by Judge Gary M. Farmer, who retired from this

court December 31,2010. As Judge Farmer can no longer participate in this matter,

and since I concurred with his proposed dissent, I now adopt in total his writing.

Although I thoroughly agree with this dissent, I want the record to reflect that the

words are those of Judge Farmer.

 the trial judge might be disposed to approve. The effect is to

remove completely from the court's consideration the power to
enter an orderJ equivalent in all respects to a deprivation of
jurisdiction'. If the trial judge loses the ability to exercise judicial
discretion or to adjudicate the cause in any way, it follows that he
has no jurisdiction to reinstate a dismissed proceeding. The policy
reasons for this consequence support its apparent rigidity."

360 So. 2d at 69. But later in Miller v. Fortune Insurance Co., 484 So. 2d 1221
. (Fla. 1986), the court retreated from its statement in Randle-Eastern
Ambulance about the "removling the cause) completely from the court's
consideration the power to enter an order." Instead the Miller court specified
an exception in rule 1.S40(b) to the complete loss of jurisdiction from a
voluntary dismissal:

"A trial judge is deprived of jurisdiction, not by the manner in

which the proceeding is terminated, but by the sheer finality of the
act, whether judgment, decree, order or stipulation, which
concludes litigation. Once the litigation is terminated and the time
for appeal has run, that action is concluded for all time. There is
one exception to this absolute finality, and this is rule 1.540,
which gives the court jurisdiction to relieve a party from the act of
finality in a narrow range of circumstances." (e.s.]

484 So. 2d at 1223. MiUerexplicitly held that "that Rule 1.540(b) may be used
to afford relief to all litigants who can demonstrate the existence of the grounds
set out under the rule."4 In this case, defendant contends that the court had
authority here to consider his motion for relief on the merits because he
asserted a specific basis authorized by rule 1.540(b).

Rule I.S40(b)(3) provides:

"On motion and upon such terms as are just, the court may relieve
a party ... from a final judgment, decree, order, or proceeding for ...
fraud (whether ... intrinsic or extrinsic). misrepresentation, or other
misconduct ofan adverse party." Ie.s.]
In Select Builders of Florida v. Wong, 367 So. 2d 1089 (Fla. 3d DCA 1979), the
Third District agreed that rule 1.S40(b) affords a basis to strike a notice of
voluntary' dismissal filed to avoid sanctions for relief from the dismissal on
account of fraudulent conduct. In explaining its decision, the court noted that
in that instance "plaintiff had obtained the affirmative relief it sought, its

4 484 So.2d at 1224 (citing Shampaine Indus. II. S. Broward Hosp. Dist., 411 So. 2d
364 (Fla. 4th DCA 1982)).

Il

actions in the cause in the trial court may have been fraudulent on the court
and it certainly was within its inherent power (as an equity court) to protect its
integrity.· 367 So. 2d at 1091. I do not read Select Builders to explicitly hold
that "affirmative relief" is required to establish grounds under rule 1.540(b) for
relief from a voluntary dismissal done to prevent examination into an
attempted fraud on the court. 5
In U.S. Porcelain, Inc. v. Breton, 502 So. 2d 1379 (Fla. 4th DCA 1987), we
tacitly recognized the Select Builders exception but found it inapplicable where
"[tJhere are no fmdings nor conclusions in this case of fraud, deception,
irregularities, nor any misleading of the court." 502 So. 2d at 1380. Our
agreement with the holding in Select Builders evinces no attempt to narrow the
exception to traditional common law fraud, indeed adding as other forms of
fraudulent conduct "deception, irregularities, [Jor any misleading of the court."
~.~] .

The fact that the fraud exception applied in Select Builders is now commonly
recognized as valid under Miller v Fortune Insurance is seen in the following
exposition on the subject from the standard Florida legal encyclopedia:

"In exercising its inherent power to protect its integrity, the trial
court is authorized to reinstate a matter and retains jurisdiction
over the cause, in order to prevent a fraud on the court, where it
appears the plaintiff has perpetrated fraud upon the court to
obtain a voluntary dismissal. The original jurisdiction over the
dismissed cause first acquired continues for the purpose of
entertaining and deciding all appropriate proceedings brought to
reopen the case, either by means of an independent equity suit
directed against the fraudulently induced order or judgment to
have it set aside or by means of a direct motion filed in the case
itself praying that the order of dismissal be vacated and the cause
returned to the docket of pending cases."

1 FLA.JUR.20, Actions § 231 (citing Select Builders); see also Roger A. Silver, The
Inherent Power Of The Florida Courts, 39 U. MIAMI L. REV. 257, 287 (1985)
("Florida courts have ... inherent power... to strike a voluntary dismissal" (citing
Select Builders)); Henry P. Trawick Jr., TRAWICK'S FLoRIDA PRACTICE & PROCEDURE
§ 21:2 (citing Select Builders); 25 TRIAL ADVOCATE QUARTERLY 22J 23 (discussing
Select Builders). All the texts base the court's authority to grant relief on the
inherent power of the judges to protect the integrity of the court system in the
litigation process.

5 See also Romar 1nt'11I. Jim Rathman Chevrolet/Cadillac, Inc., 420 So. 2d 346, 347
(Fla. 5th DCA 1982) (recognizing "narrow exception exists where a fraud on the court
is attempted [e.s.] by the filing of the voluntary dismissal").
8
 '.

-.

In opposing defendant's motion for relief under rule 1.540(b)t BNY Mellon
relies on Bevan v. D~lessandro. 395 So. 2d 1285 (Fla. 2d DCA 1981). There
the court recognized the fraud exception to the voluntary dismissal rule but
held it inapplicable where plaintiff did not obtain any relief and the act of filing
the voluntary dismissal did not actually rise to the level of a fraud on the
court. 6 BNY Mellon argued that, similarly, it had obtained no relief or benefit
at that point in the action from the filing of the revised assignment. In denying
defendant's motion for relief under rule 1.540(b), the trial judge appeared to
rely heavily on Bevan and that argument of BNY Mellon. Curiously neither
Bevan nor BNY Mellon makes any attempt to argue whYt as a matter of simple
jurisprudence, courts should be precluded from scrutinizing the use of a
voluntary dismissal after an unsuccessful attempt to deceive, mislead or
defraud a court by producing and filing spurious documents and instruments
on which to base a claim in suit.

It is apparent to me that BNY Mellon actually did achieve some benefit by its
dismissal. In voluntarily dismissing the case at that point, it thereby avoided
the scheduled depositions of the persons who might have direct knowledge of
an attempted fraud on the court. In fact, it is fair to conclude that the only
purpose in dismissing was to shelter its agents from having to testify about the
questionable documents. It continued to use the voluntary dismissal to stop
the trial court from inquiring into the matter, arguing the absence of
jurisdiction to do so. To the extent that Miller v Fortune Insurance can be read
to require, as a precondition to relief under rule 1.540(b) from a voluntary
dismissal, that the false document benefited the filer in some way, we conclude
that any necessary benefit has been shown in this case.

Nor do I find the recent decision in Service Experts LLC v. Northside Air
Conditioning & Electric ServicesJ No. 2009-5416, 2010 WL 4628567 (Fla. 2d
DCA Nov. 17, 2010)t apposite to the issue in this case. There, plaintiff filed a
voluntary dismissal of the action "after almost two years of litigation, after
[defendants] served offers of judgment, after the close of discovery t and after
[defendants] moved for summary judgment." 2010 WL 4628567 at *1.
Defendants moved under rule 1.42(JT to strike the voluntary dismissal, arguing
that earlier in the case plaintiff had filed "fraudulent affidavits." The trial court
did not determine whether a fraud on the court had occurred. Instead it found

6 We note that Beuan was decided several years before the supreme court decided
Miller v. Fortune Insurance.

7 Defendants said that their motion to strike the notice of voluntary dismissal was not
made under rule 1.540 because that rule applies to final judgments, decrees t orders,
or proceedings, and the voluntary dismissal they sought to set aside was not a fmal
judgment, decree. or order. The Second District agreed with that "procedural
assessment."

9
that defendants had satisfied the common law exception to rule 1.420 allowing
for voluntary dismissals by showing they "acquired substantive rights in the
outcome of [the1 matter by the filing of the motion for summary judgment, by
making offers of judgment and by setting forth convincing allegations of fraud,
all of which would be lost if the dismissal without prejudice were allowed to
stand." 2010 WL 4628567 at *1. Accordingly, it gave the parties the option of
going to trial or scheduling an evidentiary hearing on whether there had
actually been any fraud on the court. Plaintiff thereupon appealed that order
on the grounds that it infringed its right of voluntary dismissal. Because
Service Experts is obviously based solely on rule 1.420, rather than on a
showing of fraud for relief under rule 1.540(b), it is not dispositive of the issue
presented in this case.

But, in any event, I disagree with Select Builders, Bevan and Service Experts
to the extent of any holding that affirmative relief or even some other benefit is
necessary for relief from a voluntary dismissal filed after an attempted fraud on
the court has been appropriately raised. Nothing in the logic of Miller v.
Fortune Insurance allowing rule 1.S40(b) to be used to avoid a voluntary
dismissal on the grounds of fraud requires that such fraud must actually
achieve its purpose. The purpose served by punishing a fraud on a court does
not lie in an indispensable precondition of detrimental reliance - i.e., in
successfully deceiving a court into an outcome directly resulting from fraud ­
but in the mere effort itself to try to use false and fraudulent evidence in a
court proceeding.S As with criminal law, where the failed attempt itself is an
offense punished by law,9 the power of courts to grant relief from presenting
false or fraudulent evidence and imposing sanctions is not confined solely to
instances when fraud directly results in an unjust, erroneous judgment.

Indeed there are a number of reported decisions by Florida courts imposing

sanctions on a party pre"senting false or fraudulent evidence without any

8 See Lance v. Wade, 457 So. 2d 1008, 1011 (Fla. 1984) (common law fraud requires
showing that defendant deliberately and lmowingly made false representation actually
causing detrimental reliance by the plaintift); see also Palrnas y Bambu, S.A. fl. E.!
DuPont de Nemours & Co., 881 So. 2d 565,573 (Fla. 3d DCA 2004) (when fraudulent
misrepresentation is alleged direct causation can be proved only by establishing
detrimental reliance).

9 See § 777.04(1), Fla. Stat. (2010) (criminalizing and punishing attempts to commit
an offense prohibited by law even though the accused fails in the perpetration or is
intercepted or prevented in the execution thereot); see also § 817.54 Fla. Stat. (2010)
(third degree felony to - with intent to defraud - "obtain(] the signature of any person
to any mortgage, mortgage note, promissory note or other instrument evidencing a
debt by color or aid of fraudulent or false representation or pretenses, or obtain[) the
signature of any person to a mortgage, mortgage note, promissory note, or other
instrument evidencing a debt, the false making whereof would be punishable as
forgery") .
10
"

affirmative relief or a final determination on the merits. See, e.g., Ramey v.

Haverty Fum. Co., 993 So. 2d 1014, 1019 (Fla. 2d DCA 2008) (upholding
sanction of dismissal for misrepresentations in discovery about prior medical
treatment "directly related to the central issue in the case"); McKnight v.
Evancheck, 907 So. 2d 699, 700 (Fla. 4th DCA 2005) (affirming dismissal for
fraud. on the court where trial court found plaintiff "lied about his extensive
medical history, which had a direct bearing on his claim for damages"); MO'l1an
v. Campbell, 816 So. 2d 251, 253 (Fla. 2d DCA 2002) (false testimony in
discovery "directly related to the central issue in the case"). We are hard
·pressed to distinguish in substance the imposition of sanctions in those cases
from the one at hand.

One federal appellate decision makes the point well. In Aoude v. Mobil oa
Corp., 892 F.2d 1115 (1st Cir.1989), the plaintiff filed a complaint based upon
a bogus contract and attached that bogus document to its complaint. When
the defendant became aware of the falsity of the contract sued upon, it moved
to dismiss the case for the attempted fraud on court. The trial court granted
the motion. When plaintiff later refiled its claim and attached the real contract,
defendant again moved to dismiss, arguing that the dismissal of the first case
barred the claim permanently. The trial court again granted the motion. The
court of appeals affirmed both holdings. In an appeal plaintiff argued that the
attempted fraud arising from the use of the bogus agreement had no effect
ultimately on defendant's ability to litigate the case or on the court's ability to
make a just decision on the merits. The court rejected the argument on appeal
that the attempt to defmud the court had failed and thus could escape
punishment, responding:

"The failure of a party's corrupt plan does not immunize the

defrauder from the consequences of his misconduct. When
[plaintiff} concocted the agreement, and thereafter when he and his
counsel annexed it to the complaint, they plainly thought it
material. That being so, '[tJheyare in no position now to dispute
its effectiveness. J "

892 F.2d at 1120.

So, too, BNY Mellon's attempt to allege and file the assignment of the
mortgage was undeniably based on a belief in the necessity for - and the
materiality of - a valid assignment of mortgage. Defendant's colorable
showing of possible fraud in the making and filing of the assignment led to the
scheduling of the depositions of those involved in making the document and
the notice of depositions led directly to the voluntary dismissal to avoid such
scrutiny for an attempted fraud. As Aoude forcefully makes clear, a party
should not escape responsibility and appropriate sanctions Cor unsuccessfully

11

attempting to defraud a court by purposefully evading the issue through a

voluntary dismissal.

This issue is one of unusual prominence and importance. Recently. the

Supreme Court promulgated changes to a rule of procedure made necessary by
the current wave of mortgage foreclosure litigation. See In re Amendments to
Rules of Civil Procedure, 44 So. 3d 555 (Fla. 2010). In approving one
amendment, the court pointedly explained:

"(R]ule 1.11 O(b) is amended to require verification of mortgage

foreclosure complaints involving residential real property. The
primary purposes of this amendment are (1) to provide incentive
for the plaintiff to appropriately investigate and verify its ownership
of the note or right to enforce the note and ensure that the
allegations in the complaint are accurate; (2) to conserve judicial
resources that are currently being wasted on inappropriately
pleaded 10st note' counts and inconsistent allegations; (3) to
prevent the wasting of judic~ resources and harm to defendants
resulting from suits brought by plaintiffs not entitled to enforce the
hote; and (4) to give trial courts greater authority to sanction
plaintiffs woo maksfalse allegations." [e.s.)

44 So. 3d at 556. I think this rule change adds significant authority for the
court system to take appropriate action when there has been, as here, a
colorable showing of false or fraudulent evidence. We read this rule change as
an important refutation of BNY Mellon's lack of jurisdiction argument to avoid
dealing with the issue founded on inapt procedural arcana.

Decision-making in our courts depends on genuine, reliable evidence. The

system cannot tolerate even an attempted use of fraudulent documents and
false evidence in our courts. The judicial branch long ago recognized its
responsibility to deal with, and punish, the attempted use of false and
fraudulent evidence. When such an attempt has been colorably raised by a
party, courts must be most vigilant to address the issue and pursue it to a
resolution.

I would hold that the trial judge had the jurisdiction and authority to
consider the motion under rule l.S40(b) on its merits and - should the court
find that a party filed a false and fraudulent document in support.of its claim
- to take appropriate action, including (without limitation) the striking of a
voluntary dismissal filed in aid of such conduct.

'* * *
Appeal of a non-final order from the Circuit Court Cor the Fifteenth Judicial

12

.t'." . c"",.

Circuit, Palm Beach County; Meenu Sasser, Judgej L.T. Case No. 50 2008 CA
031691 XXXXMB.

Enrique Nieves III and Chris T. Immel of Ice Legal, P.A., West Palm Beach,
for appellant.

Nancy M. Wallace, Katherine E. Giddings and William P. Heller of Akerman

Senterfitt, Tallahassee and Fort Lauderdale, for appellee.

13

 .
,
.....

,
"

INTHE DTSTR1CT COURT OF APPEAL

FOR THE FOlJRTH DISTR1CTCOURT OF FLORIDA

ROMANPINO,

Appenatlt~

VS. Case No. 401O..j78

Lower Case No. SO 2008 CA 031691

tHE BANK OF NEW YORK

tvre~LPN,.:6TC':J aT AL,~

Appellee.
I
--------~------~~

APPELLEE'S MOTlONFOR CLARIFICATION

Pl~rsuant to 'Florida' Rule of Appellate Ptocedure 9.330, Appellee, The Bank

of New York Mellon, etc., et al CiBoNV"). requests that this Court clarify itseh

bane opinion issued February 2, 2011 to clarity that Akerman Senterfitt attorneys

were' not involved in the proceedings giving rise to the allegations of

misrepresentation and fraud upon the' court We were only appellate. counsel.

OnF~bru.ary ,2;2011, thi~ COlHt is,s\l~~theopinion affinningth~ trialc()\lrt'~

order denyingappeUant Roman Pino's motion under Florida Rule of Civil

Procedure 1.S40(b) to vacate a voluntary dismissal. The opinion states: "[t]he

notice was filed after [Fino] moved for sanctions ag~inst [BoNYJ forfil,ing what he

alleged Was a fraudulent assignment of mortgage" (Slip Op. at 1). This Court

Exhibit B

rrU709QSjll
02-01-11P02:57 RCVD Y
 ,~
,...

affirmed the denial of the rule 1.540(b) motion because the notice of voluntary

dismissal was filed prior to Pino obtaining affirmative relief from the trial court.

In the opinion,. this Court states: IIMoreover, a referral of the appellee's

attorney for a violation of the Code of Professional Responsibility for filing the

complaint with the alleged false affidavit is in order." (Slip Cp. at 5) On the face

of the opinion, this statement appears to refer to us because Akerman Senterfitt is

the only counsel of record for BoNY in this appeal. The opinion does not name or

otherwise reference trial counsel. No Akerman Senterfitt lawyer was involved

with this initial foreclosure action against Pino. the filing of the complaint at issue.

or the alleged fraudulent activities-the complaint was filed by Dorma Evertz of

the Law Offices of David J. Stern, P.A.

I

Because the opinion can be read as stating Akerman Senterfitt attorneys

were potentially engaged in fraudulent activities and are being referred to the

Florida Bar, we respectfully ask that the opinion be clarified to add a footnote to

the referral sentence, which states: IINotably, Akerman Senterfitt attorneys were

not i1?-volved in the proceedings giving rise to the allegations of misrepr~entation

and fraud upon the court." The Second District Court of Appeal recently included

a similar statement in Prestige Va{et, Inc. v. Mendel, III, 14 So. 3d 282, 283 n.2

(Fla. 2d D~A 2009),

(TL270905;J I 2
..• '. ~ ..
'(.. 'f."

If the opinion is not clarified, we fear our reputations and those of other

attorneys at Akerman Senterfitt will be damaged before this Court, othe.r courts,

and the public. Granting the reUefrequested will not prejudice any party.

WHEREFORE, BoNY requests that this Court clarify the opinion by

adding a footnote on page 5 to the bar referral sentence stating: "Notably, Akerman

Senterfitt attorneys were not involved in the proceedings giving rise to the

allegations ofmisrepresentation and fraud upon the court,"

WILLIAM P. HELLER (987263) T RINE IDDINGS (0949396)

Akerman Senterfit
Las Olas Centre II
350 East Las Olas Blvd., Suite 1600
Fort Lauderdale, FL 33301
Telephone: (954) 759-8945
Facsimile: (954) 463-2224
E-mail: william.heller@akerman.com
NANCY M. WALLACE (65897)
Akerman Senterfitt
106 East College Avenue, Suite 1200
Tallahassee, FL 32301
Telephone: (850) 425-1626
Telecopier: (850) 325-2526
E-mail: katherine.giddings@akerman.com
nancy.wallace@akerman.com

Attorneys for Appellee

{TL27090S;J I 3
"~ ~c~
.:~J\
'. ',.­
;..:

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

mailed this ~ day of February 2011 to: Enrique Nieves, Ice Legal, PA, 1015

State Road 7, Suite 0, Royal Palm Beach, FL 33411-5185 (Counsel for Appellant),

Forrest G. McSurdy, Stem & McSurdy, Attorneys at Law, Law Offices- of David J.

Stem, P.A., 900 South Pine Island Road, Suite 400, Plantation, FL 33324-3920

(Trial Counsel for Appellee) and Mortgage Electronic Registration Systems, Inc.

clo Electronic Data Systems Corporation, 3300 34th Avenue. UiteIOI.~

FL 34474 (Defendant below).

ITL27090S:J} 4
 DISTRICT COURT OF ApPEAL OF THE STATE OF FLoRIDA
FOURTH DISTRICT
January Tenn 2011

ROMAlf P1KO,

Appellant,

v.
THB BANK OF NEW YORK MELLON,

Appellee.

No.4DlO-378
[February 2, 2011]
ENBA.Nc

WARNER, J.

The defendant in a mortgage foreclosure action filed by BNY Mellon appeals

a trial court's denial of his motion under Florida Rule of Civil Procedure
1.540(b) to vacate a voluntary dismissal. The notice was filed after the
defendant moved for sanctions against the plaintiff for filing what he alleged
was a fraudulent assignment of mortgage. Because the notice of voluntary
dismissal was filed prior to the plaintiff obtaining any affumative relief from the
court, we affll'IIl the trial court's order.

BNY Mellon commenced an action to foreclose a mortgage against the

defendant. The mortgage attached to the complaint specified another entity,
Silver State Financial Systems, as lender and still another, Mortgage Electronic
Registration Systems, as mortgagee. The complaint alleged that BNY Mellon
owned and held the note and mortgage by assignment, but failed to attach a
copy' of any document of assignment. At the same time, it alleged the original
promissory note itself had been "lost, destroyed or stolen." The complaint was
silent as to whether the note had ever been negotiated and transferred to BNY
Mellon in the manner provided by law. 1

The defendant initially sought dismissal for failure to state a cause of action,
arguing that in light of the claim of a lost instrument, the absence of an

1 See § 673.2011(2), Fla. Stat. (2010) (if instrument is payable to an identified person
"negotiation requires transfer of possession of the instrument" and endorsement by
holder).
Exhibit c
,;~ '". ·1
,.f

assignment of mortgage was a critical omission. BNY Mellon responded by

amending the complaint only to attach a new unrecorded assignment, which
happened to be dated just before the original pleading was filed.

In response to this amendment, defendant moved for sanctions. He alleged

that the newly produced document of assignment was false and had been
fraudulently made, pointing to the fact that the person executing the
assignment was employed by the attorney representing the mortgagee, and the
commission date on notary stamp showed that the document could not have
been notarized on the date in the document. The defendant argued that the
plaintiff was attempting fraud on the court and that the court should consider
appropriate sanctions, such as dismissal of the action with prejudice.
Concurrent with the ruing of this motion, the defendant scheduled depositions
of the person who signed the assignment, the notaIy. and the witnesses named
on the document - all employees of Florida counsel for BNY Mellon - for the
following day. Before the scheduled depositions, BNY Mellon filed a notice of
voluntary dismissal of the action.

Five months later, BNY Mellon refiled an identical action to foreclose the
same mortgage. The new .complaint no longer claimed the note was lost and
attached a new assignment of mortgage dated after the voluntary dismissal. In
the original, dismissed action, the defendant filed a motion under rule 1.540(b),
seeking to strike the voluntary dismissal in the original action on the grounds
of fraud on the court and for a dismissal of the newly filed action as a
consequent sanction, requesting an evidentiary hearing. The trial court denied
the motion without an evidentiary hearing, essentially holding that, because
the previous action had been voluntarily dismissed under rule 1.420, the court
lacked jurisdiction and had no authority to consider any relief under rule
1.540(b).

We affirm the trial court's refusal to strike the notice of voluntary dismissal.
Neither rule 1. 540(b) nor the common law exceptions to that rule allow a
defendant to set aside the plaintiff's notice of voluntary dismissal where the
plaintiff has not obtained any affinnative relief before dismissal.

Rule 1.420(a) permits a plaintiff to ~ismiss an action without order of the

court "at any time" before a motion for summaIY judgment is heard or before
retirement of the jury or submission to the court if the matter is tried non-jury.
"Our courts have consistently construed this rule as meaning that, at any time
before a hearing on a motion for summary judgment, a party seeking
affirmative relief has nearly an absolute right to dismiss his entire action once,
without a court order, by serving a notice of dismissal." Onnond Beach Assocs.
Ltd. rI. Citation Mortg., Ltd., 835 So. 2d 292, 295 (Fla. 5th DCA 2002); see also
Meyer v. Contemporary Broadcasting Co., 207 So. 2d 325, 327 (Fla. 4th DCA
1968). The courts have carved out narrow exceptions to this entitlement:

2
 The only recognized common law exception to the broad scope of
this rule is in circumstances where the defendant demonstrates
serious. prejudice, such as where he is entitled to receive
aftlrmative relief or a hearing and disposition of the case on the
merits, has acquired some substantial rights in the cause, or
where dismissal is inequitable. See Romar Int'l, Inc. v. Jim
Rathman Chevrolet/Cadillac, Inc., 420 So. 2d 346 (Fla. 5th DCA
1982); VESoly v. Bodele, 602 So. 2d 979 (Fla. 3d DCA 1992).

Ormond, 835 So. 2d at 295. In VlSoly, the court granted a motion to strike the
complaint as a sham. Finding that rule 1.150(a) operated much like a motion
for summary judgment, the court concluded that the plaintiff could not
voluntarily dismiss his complaint pursuant to rule 1.420(a) wh:ere the trial
court had granted the m9tion to strike, which was equivalent to the granting of
a motion for summary judgment.

The most applicable common law exception to the right to a voluntary

dismissal was applied in Select Builders of Florida, Inc. v. Wong, 367 So. 2d
1089 (Fla. 3d DCA 1979). There, the court affirmed the trial court's striking of
a notice of voluntary dismissal where the plaintiff sought to perpetrate a fraud
by the filing of the notice of voluntary dismissal. Select Builders had filed suit
to expunge an injunctiori against a condominium developer, granted in Federal
Court in Illinois, and improperly filed in the public records of Dade County.
The trial court issued an order expunging the document and enjoining the
filing of any other like documents without domesticating the judgment in
Florida. Later, it was discovered that Select Builders had perpetrated a fraud
upon the court in obtaining the order expunging the document. The trial court
vacated its prior order, and the appellees moved for sanctions and fees. The
court also ordered Select Builders to take steps to preserve the status quo and
to make payment of monies it received in connection with the sale of some of
the property subject to the injunction to a third party. Select Builders then
filed a notice of voluntary dismissal, which the trial court struck to retain
jurisdiction over the case.

The appellate court affirmed, concluding that the court correctly retained
jurisdiction to prevent a fraud on the court. "The plaintiff had obtained the
affinnative relief it sought, its actions in the cause in the trial court may have
been fraudulent on the court and it certainly was within its inherent power (as
an equity court) to protect its integrity." Id. at 1091. The court distinguished
other cases in which the plaintiffs right to take a voluntary dismissal was
deemed absolute: "First, the plaintiff in the cited cases had not received
affirmative relief from an equity court and, secondly, no question of fraud on
the court was involved." Id.

· -11.
J ....
~ •

In Select Builders the plaintiff obtained affirmative relief by the granting of

the suspect injunction, and it had obtained such relief by fraud. Comparing
the facts of Select Builders to this case, we fmd that the BNY Mellon had not
obtained any type of affirmative relief. Even if the assignment of mortgage was
"fraudulent" in that it was not executed by the proper party, it did not result in
any relief in favor of BNY Mellon. Select Builders is thus distinguishable from
the preseht case. In Bevan v. D~lessandTO, 395 So. 2d 1285, 1286 (Fla. 2d
DCA 1981), the court likewise distinguished Select Builders on the grounds
that the "plaintiff had received affirmative relief to which he was not entitled
and sought to avoid correction of the trial court's error by taking a voluntary
dismissal." No such circumstance is present in this case.

The appellant argues that rule 1.540(b) also provides a method to seek relief
from a notice of voluntary dismissal. We disagree that the defendant/appellant
may utilize that rule where the defendant has not been adversely affected by
the voluntaIy dismissal. Rule 1.540(b) allows a court to relieve a party from a
"final judgment, decree, order, or proceeding" based upon any of five grounds
set out in the rule: (1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence; (3) fraud or other misconduct of an adverse party;
(4) that the judgment or decree is void; or (5) that the judgment or decree has
been satisfied or released. A notice of voluntary dismissal CQnstitutes a
"proceeding" within the meaning of the rule. See Miller v. Fortune Ins. Co., 484
So. 2d 1221, 1224 (Fla. 1986). Therefore, the rule may be invoked, even
though for all other purposes the trial court has lost jurisdiction over the
cause. Id. Indeed, in Shampaine Industries, Inc. v. South Broward Hospital
District, 411 So. 2d 364, 368 (Fla. 4th DCA 1982) -approved by the supreme
I

court in Miller, we held: "Rule 1.S40(b) may be used to afford relief to all
litigants who can demonstrate the existence of the grounds set out in the
Rule."

The rule, however, is limited to relieving a party of a judgment, order or

proceeding. "Relieve" means "[t]o ease or alleviate (pain, distress, anxiety,
need, etc.) ... to ease (a person) of any burden, wrong, or oppression, as by
legal means." The Random House Dictionary of the English Language 1212
(1967). A defendant may obtain such "relief' when a plaintiff has obtained a
ruling that has adversely impacted the defendant. Here, the defendant has not
been adversely impacted by a ruling of the court. The fact that a defendant
may have incurred attorney's fees and costs is not an adverse impact
recognized as meriting relief. See Serv. Experts, LLC v. Northside Air
Conditioning & Elea. Serv. Inc., 2010 WL 4628567 (Fla. 2d DCA 2010).
Therefore, because the defendant has not suffered an adverse ruling or impact
from the notice of voluntary dismissal, he is not entitled to seek relief pursuant
to the rule.

/
 The. dissent is certainly correct that a court possesses the authority to
protect judicial integrity in the litigation process. However, the cases cited in
support of a court exercising such authority all involved the court granting a
motion for involuntary dismissal where the plaintiff had engaged in deceitful
conduct during a still pending case. See Ramey v. Haverty Fum. Co., 993 So.
2d 1014, 1020 (Fla. 2d DCA 2008); McKnight v. Eva.ncheck, 907 So. 2d 699,
700 (Fla. 4th DCA 2005); Morgan v. Campbell, 816 So. 2d 251, 253 (Fla. 2d
DCA 2002). .In each of those proceedings, the defendant moved for the
sanction of dismissal of an ongoing proceeding based upon "fraud on the
court." That term has been described as follows:

A "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 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). Dismissal is a
remedy to be used only in the most extreme cases, as "[g]enerally speaking, ...
allegations of inconsistency, nondisclosure, and even falseness, are best
resolved by allowing the parties to bring them to the jury's attention through
cross examination or impeachment, rather than by dismissal of the entire
action." Granados v. Zehr, 979 So. 2d 1155, 1158 (Fla. 5th DCA 2008)
(emphasis added).

Here, we do not view it as an appropriate exercise of the inherent authority

of the court to reopen a case voluntarily dismissed by the plaintiff simply to
exercise that authority to dismiss it, albeit with prejudice. Only in those
circumstances where the defendant has been seriously prejudiced, as noted in
Romar International, should the court exercise its inherent authority to strike a
notice of voluntary dismissal. The defendant in this case does not allege any
prejudice to him as a result of the plaintifrs voluntary dismissal of its first
lawsuit. Indeed, he may have benefitted by forestalling the foreclosure.

The appropriate procedure is to follow Rule 1.420. Upon the voluntary

dismissal, Pino would be entitled to his costs and possibly his attorney's fees.
See Fleet Servs. Corp. v. Reise, 857 So. 2d 273 (Fla. 2d DCA 2003). The court
can require payment as a precondition to the second suit. See Fla. R. Civ. P.
1.420(d). Moreover, a referral of the appellee's attorney for a violation of the
Code of Professional Responsibility for filing the complaint with the alleged
false affidavit is in order.

We conclude that this is a question of great public importance, as many,

many mortgage foreclosures appear tainted with suspect documents. The

 .,
,Y'.•
.., "

relief from a voluntary dismissal done to prevent examination into an

attempted fraud on the court,4

In U.S. Porcelain, Inc, v. Breton, 502 So. 2d 1379 (Fla. 4th DCA 1987), we
tacitly recognized the Select Builders. exception but found it inapplicable where
"[t]here are no fmdings nor conclusions in this case of fraud, deception,
irregularities, nor any misleading of the court." 502 So. 2d at 1380. Our
agreement with the holding in Select Builders evinces no attempt to narrow the
exception to traditional common law fraud, indeed adding as other forms of
fraudulent conduct "deception, irregularities, [Jor any misleading of the court. n
[e.s.]

The fact that the fraud exception applied in Select Builders is now commonly
recognized as valid under Miller v Fortune Insurance is seen in the follOwing
exposition on the subject from the standard Florida legal encyclopedia:

"In exercising its inherent power to protect its integrity, the trial
court is authorized to reinstate a matter and retains jurisdiction
over the cause, in order to prevent a fraud on the court, where it
appears the plaintiff has perpetrated fraud upon the court to
obtain a voluntary dismissal. The original jurisdiction over the
dismissed cause f11"st acquired continues for the purpose of
entertaining and deciding all appropriate proceedings brought to
reopen the case, either by means of an independent equity suit
directed against the fraudulently induced order or judgment to
have it set aside or by means of a direct motion filed in the case
itself praying that the order of dismissal be vacated and the cause
returned to the docket of pending cases."

1 FLA.JuR.2D, Actions § 231 (citing Select Builders); see also Roger A. Silver, The
Inherent Power Of The Florida Courts, 39 U. MIAMI L. REV. 257, 287 (1985)
("Florida courts have ... inherent power... to strike a voluntary dismissal" (citing
Select Builders)); Henry P. Trawick Jr., TRAWICK'S FLoRIDA PRACTICE & PROCEDURE
§ 21:2 (citing Select Builders);. 25 TRIAL ADVOCATE QUARTERLY 22, 23 (discussing
Select Builders). All the texts base the court's authority to grant relief on the
inherent power of the judges to protect the integrity of the court system in the
litigation process.

In opposing defendant's motion for relief under rule l.S40(b), BNY Mellon
relies on Bevan v. D~lessandro, 395 So. 2d 1285 (Fla. 2d DCA 1981). There
the court recognized the fraud exception to the voluntary dismissal rule but
held it inapplicable where plaintiff did not obtain any relief and the act of fIling

4 See also Romar Int'l v. Jim Rathman Chevrolet/Cadillac, Inc., 420 So. 2d 346, 347
(Fla. 5th DCA 1982) (recognizing "narrow exception exists where a fraud on the court
is attempted (e.s.) by the filing of the voluntary dismissal").
8
the voluntary dismissal did not actually rise to the level of a fraud on the
court. s BNY Mellon argued that, similarly, it had obtained no relief or benefit
at that point in the action from the filing of the revised assignment. In denying
defendant's motion for relief under rule 1.540(b), the trial judge appeared to
rely heavily on Bevan and that argument of 8NY Mellon. Curiously neither
Bevan nor BNY Mellon makes any attempt to argue why, as a matter of simple
jurisprudence, courts should be precluded from scrutinizing the use of a
voluntary dismissal after an unsuccessful attempt to deceive, mislead or
defraud a court by producing and filing spurious documents and instruments
on which to base a claim in suit.

It is apparent to me that BNY Mellon actually did achieve some benefit by its
dismissal. In voluntarily dismissing the case at that point, it thereby avoided
the scheduled depositions of the persons who might have direct knowledge of
an attempted fraud on the court. In fact, it is fair to conclude that the only
purpose in dismissing was to shelter its agents from having to testify about the
questionable documents. It continued to use the voluntary dismissal to stop
the trial court from inquiring into the matter, arguing the absence of
jurisdiction to do so. To the extent that Miller v Fortune Insurance can be read
to require, as a precondition to relief under rule 1.540(b) from a voluntary
dismissal, that the false document benefited the mer in some way, we conclude
that any necessary benefit has been shown in this case.

Nor do I find the recent decision in Seroice Experts UC v. Northside Air

Conditioning & Electric Seroices 2010 WL 4628567 (Fla. 2d DCA Nov. 17,
J

2010), apposite to the issue in this case. There, plaintiff filed a voluntary
dismissal of the action "after almost two years of litigation, after [defendants]
served offers of judgment, after the close of discovery, and after [defendants]
moved for summary judgment." 2010 WL 4628567 at *1. Defendants moved
under rule 1.42(1) to strike the voluntary dismitlsal, arguing that earlier in the
case plaintiff had filed "fraudulent affidavits." The trial court did not determine
whether a fraud on the court had occurred. Instead it found that defendants
had satisfied the common law exception to rule 1.420 allowing for voluntary
dismissals by showing they "acquired substantive rights in the outcome of [the]
matter by the filing of the motion for summary judgment, by making offers of
judgment and by setting forth convincing allegations of fraud, all of which
would be lost if the dismissal without prejudice were allowed to stand." 2010

5 We note that Bevan was decided several years before the supreme court decided
MiUer tI. Fortune Insurance.
6 Defendants said that their motion to strike the notice of voluntary dismissal was not
made under rule 1.540 because that rule applies to final judgments, decrees, orders,
or proceedings, and the voluntary dismissal they sought to set aside was not a fmal
judgment, decree, or order. The Second District agreed with that "procedural
assessment. If

WL 4628567 at *1. Accordingly, it gave the parties the option of going to trial
or scheduling an evidentiaIy hearing on whether there had actually been any
fraud on the court. Plaintiff thereupon appealed that order on the grounds
that it infringed its right of voluntary dismissal. Because Service Experts is
obviously based solely on rule 1.420, rather than on a showing of fraud for
relief under rule l.S40(b), it is not dispositive of the issue presented in this
case.

But, in any event, I disagree with Select Builders, Bevan and Service Experts
to the extent of any holding that affmnative relief or even some other benefit is
necessary for relief from a voluntaJy dismissal filed after an attempted fraud on
the court has been appropriately raised. Nothing in the logic of Maler v.
Fortune Insurance allowing rule 1.540(b) to be used to avoid a voluntary
dismissal on the grounds of fraud requires that such fraud must actually
achieve its purpose. The purpose served by punishing a fraud on a court does
not lie in an indispensable precondition of detrimental reliance - i.e., in
successfully deceiving a court into an outcome directly resulting from fraud ­
but in the mere effort itself to try to use false and fraudulent evidence in a
court proceeding. 7 As with criminal law, where the failed attempt itself is an
offense punished by law,8 the power of courts to grant relief from presenting
false or fraudulent evidence and imposing sanctions is not confined solely to
instances when fraud directly results in an unjust, erroneous judgment.

Indeed there are a number of reported decisions by Florida courts imposing

sanctions on a party presenting false or fraudulent evidence without any
affinnative relief or a final determination on the merits. See, e.g., Ramey v.
Haverty Fum. Co., 993 So. 2d 1014, 1019 (Fla. 2d DCA 2008) (upholding
sanction of dismissal for misrepresentations in discovery about prior medical
treatment "directly related to the central issue in the case"); McKnight v.
Evancheck, 907 So. 2d 699, 700 (Fla. 4th DCA 2005) (affuming dismissal for

7 See Lance I). Wade, 457 So. 2d 1008, 1011 (Fla. 1984) (common law fraud requires
showing that defendant deliberately and knowingly made false representation actually
causing detrimental reliance by the plaintiff); see also Palmas y Bambu, S.A. fl. E.L
DuPont de Nemours & Co., 881 So. 2d 565, 573 (Fla. 3d DCA 2004) (when fraudulent
misrepresentation is alleged direct causation can be proved only by establishing
detrimental reliance).

8 See § 777.04(1), Fla. Stat. (2010) (cciminalizing and punishing attempts to commit
an offense prohibited by law even though the accused fails in the perpetration or is
intercepted or prevented in the execution thereof); see also § 817.54 Fla. Stat. (2010)
(third degree felony to - with intent to defraud - "obtain[] the signature of any person
to any mortgage, mortgage note, promissory note or other instrument evidencing a
debt by color or aid of fraudulent or false representation or pretenses, or obtain[) the
signature of any person to a mortgage, mortgage note. promissory note, or other
instrument evidencing a debt, the false making whereof would be punishable as
forgery") .
10

fraud on the court where trial court found plaintiff "lied about his extensive
medical history, which had a direct bearing on his claim for damages"); Morgan
v. Campbell, 816 So. 2d 251, 253 (Fla. 2d DCA 2002) (false testimony in
discovery "directly related to the central issue in the case"). We are hard
pressed to distinguish in substance the imposition of sanctions in those cases
from the one at hand.

One federal appellate decision makes the point well. In Aoude v. Mobil Oil
Corp., 892 F.2d 1115 (1st Cir.1989), the plaintiff filed a complaint based upon
a bogus contract and attached that bogus document to its complaint. When
the defendant became aware of the falsity of the contract sued upon, it moved
to dismiss the case for the attempted fraud on court. The trial court granted
the motion. When plaintiff later ref11ed its claim and attached the real contract,
defendant again moved to dismiss, arguing that the dismissal of the first case
barred the claim permanently. The trial court again granted the motion. The
court of appeals aff'mned both holdings. In an appeal plaintiff argued that the
attempted fraud arising from the use of the bogus agreement had no effect
ultimately on defendant's ability to litigate the case or on the court's ability to
make a just decision on the merits. The court rejected the argument on appeal
that the attempt to defraud the court had failed and thus could escape
punishment, responding:

"The failure of a party's corrupt plan does not immunize the

defrauder from the consequences of his misconduct. When
[plaintiff] concocted the agreement, and thereafter when he and his
counsel annexed it to the complaint, they plainly thought it
material. That being so, '[t]hey are in no position now to dispute
its effectiveness.' "

892 F.2d at 1120.

So, too, BNY Mellon's attempt to allege and me the assignment of the
mortgage was undeniably based on a belief in the necessity for - and the
materiality of - a valid assignment of mortgage. Defendant's colorable
shOwing of possible fraud in the making and f11ing of the assignment led to the
scheduling of the depositions of those involved in making the document and
the notice of depositions led directly to the voluntary dismissal to avoid such
scrutiny for an attempted fraud. As Aoude forcefully makes clear, a party
should not escape responsibility and appropriate sanctions for unsuccessfully
attempting to defraud a court by purposefully evading the issue through a
voluntary dismissal.

This issue is one of unusual prominence and importance. Recently, the

Supreme Court promulgated changes to a rule of procedure made necessary by
the current wave of mortgage foreclosure litigation. See In re Amendments to

11

Rules of Civil Procedure, 44 So. 3d 555 (Fla. 2010). In approving one

amendment. the court pointedly explained:

"[RJule 1.110(b} is amended to require verification of mortgage

foreclosure complaints involving residential real property. The
prinwy purposes of this amendment are (1) to provide incentive
for the plaintiff to appropriately investigate and verify its ownership
of the note or right to enforce the note and ensure that the
allegations in the complaint are accurate; (2) to conserve judicial
resources that are ctirrently' being wasted on inappropriately
pleaded 'lost note' counts and inconsistent allegations; (3) to
prevent the wasting of judicial resources and harm to defendants
resulting from suits brought by plaintiffs not entitled to enforce the
note; and (4) to give trial courts greater authority. to sanction
plaintiffs who· make false allegations." [e. s.]

44 So. 3d at 556. I think this rule change adds significant authority for the
court system to take appropriate action when there has been, as here, a
colorable showing of false or fraudulent evidence. 'We read this rule change as
an important refutation of BNY Mellon's lack of jurisdiction argument to avoid
dealing with the issue founded on inapt procedural arcana.

Decision-making in our courts depends on genuine, reliable evidence. The

system cannot tolerate even an attempted use of fraudulent documents and
false evidence in our courts. The judicial branch long ago recognized its
responsibility to deal with, and punish, the attempted use of false and
fraudulent evidence. When such an attempt has been colorably raised by a
party, courts must be most vigilant to address the issue and pursue it to a
resolution.

I would hold that the trial judge had the jurisdiction and authority to
consider the motion under rule 1.540(b) on its merits and - should the court
find that a party nIed a false and fraudulent document in support of its claim
- to take appropriate action, including (without limitation) the 'striking of a
voluntary dismissal filed in aid of such conduct.

* *
Appeal of a non-final order from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Meenu Sasser, Judge; L.T. Case No. 502008 CA
031691 XXXXMB.

Enrique Nieves III and Chris T. Immel of Ice Legal, P.A., West Palm Beach,
for appellant.

12

 Nancy M. Wallace, Katherine E. Giddings and William P. Heller of Akerman .

Senterfitt, Tallahassee and Fort lauderdale, for appellee. .

Not .IInal until disposition. of ttmerg flled motion for rehearf.n.g..

13

I '

DISTRICT COURT OF ApPEAL OF THE STATE OF FLORIDA

FOURTH DISTRlGT
January Term 2011

ROMAN PINO,

Appellant,

v.
THE BANK OF NEW YORK MELLON,

Appellee.

No. 4DIO-378

[February 2, 2011]

ENBANC

WARNER, J.

The defendant in a mortgage foreclosure action filed by BNY Mellon appeals

a trial court's denial of his motion under Florida Rule of Civii Procedure
1.S40(b) to vacate a voluntary dismissal. The notice was flIed after the
defendant moved for sanctions against the plaintiff for filing what he alleged
was a fraudulent assignment of mortgage. Because the notice of voluntary
dismissal was filed prior to the plaintiff obtaining any affirmative relief from the
court, we affirm the trial court's order.

BNY Mellon commenced an action to foreclose a mortgage against the

defendant. The mortgage attached to the complaint specified another entity,
Silver State Financial Systems, as lender and still another, Mortgage Electronic
Registration Systems, as mortgagee. The complaint alleged that BNY Mellon
.owned and held the note and mortgage by assignment, but failed to attach a
copy of any document of assignment. At the same time, it alleged the original
promissory note itself had been "lost, destroyed or stolen." The complaint was
silent as to whether the note had ever been negotiated and transferred to BNY
Mellon in the manner provided by law. 1

The defendant initially sought dismissal for failure to state a cause of action,
arguing that in light of the claim of a lost instrument, the absence of an

1 See § 673.2011(2), Fla. Stat. (2010) (if instrument is payable to an identified person
"negotiation requires transfer of possession of the instrument" and endorsement by
holder). .
 assignment of mortgage was a critical omission. BNY Mellon responded by
amending the complaint only to attach a new unrecorded assignment, which
happ~ned to be dated just before the original pleading was filed.

In response to this amendment, defendant moved for sanctions. He alleged

that the newly produced document of assignment was false and had been
fraudulently made, pointing to the 'fact that the person executing the
assignment was employed by the attorney representing the mortgagee, and the
commission date on notary stamp showed that the document could not have
been notarized on the date in the document. The defendant argued that the
plaintiff was attempting fraud on the court and that the court should consider
appropriate sanctions, such as dismissal of the action with prejudice.
Concurrent with the filing of this motion, the defendant scheduled depositions
of the person who signed the assignment, the notary, and the witnesses named
on the document - all employees of Florida counsel for BNYMellon - for the
following day. Before the scheduled depositions, BNY Mellon filed a notice' of
voluntary dismissal of the action.

Five months later, BNY Mellon refiled an identical action to foreclose the
same mortgage. The new complaint no longer claimed the note was lost and
attached a new assignment of mortgage dated after the voluntary dismissal. In
. the original, dismissed action, the defendant filed a motion under rule 1.540(b),
seeking to strike the voluntary dismissal in the original action on the grounds
of fraud 0 n the court and for a dismissal of the newly filed action as a
consequent sanction, requesting an evidentiary hearing. The trial court denied
the motion without an evidentiary hearing, essentially holding that, because
the previous action had been voluntarily dismissed under rule 1.420, the court
lacked jurisdiction and had no authority to consider any relief under rule
1.540(b). .

We·affirm the trial court's refusal to strike the notice of voluntary dismissal.
Neit:p.er rule 1.540(b) nor the common law exceptions to that rule allow a
defendant to set aside the plaintiff's notice of voluntary dismissal where the
plaintiff has not obtained any affirmative relief before dismissal.

Rule 1.420(a) permits a plaintiff to dismiss an action without order of the

Court ffat any time" before a motion for summary judgment is heard or before
retirement of the jury or submission to the court if the matter is tried non-jury.
ffOur courts have consistently construed this rule as meaning that, at any time
before a hearing 0 n a motion for summary judgment, a party seeking
afflrmative relief has nearly.an absolute right to dismiss his entire action once,
without a court order, by serving a notice of dismissal." Ormond Beach Assocs.
Ltd. v. Citation Mortg., Ltd., 835 So. 2d 292, 295 (Fla. 5th DCA 2002); see also
Meyer v. Contemporary Broadcasting Co., 207 So. 2d 325, 327 (Fla. 4th DCA
1968). The courts have carved out narrow exceptions to this entitlement:

2
 The only recognized common law exception to the broad scope of
this rule is in circumstances where the defendant demonstrates
serious· prejudice, such as where he is entitled to receive
affirmative relief or a hearing and disposition of the case on the
merits, has acquired some substantial rights in the cause, or
where dismissal is inequitable. See Romar Int'l) Inc. v. Jim
Rathman Chevrolet/Cadillac, Inc., 420 So. 2d 346 (Fla. 5th DCA
1982); Visoly v. Bodek, 602 So. 2d 979 (Fla. 3d DCA 1992).

Ormond, 835 So. 2d at 295. In Visoly, the court granted a motion to strike the
complaint as a sham. Finding that rule 1.1S0{a) operated much like a motion
for summary judgment, the court concluded that the plaintiff could not
voluntarily dismiss his complaint pursuant to rule 1.420(a) where the trial
court had granted the motion to strike, which was equivalent to the granting of
a motion for summary judgment.

The most applicable common law' exception to the right to a voluntary

dismissal was applied in Select Builders of Florida, Inc. v. Wong, 367 So. 2d
1089 (Fla. 3d DCA 1979). There, the court affirmed the trial court's striking of
a notice of voluntary dismissal where the plaintiff sought to perpetrate a fraud
by the flling of the notice of voluntary dismissal. Select Builders had filed suit
to expunge an injunction against a condominium developer, granted in Federal
Court in Illinois, and improperly filed in the public records of Dade County.
The trial court issued an order expunging the document and enjoining the
filing of any other like documents without domesticating the judgment in
Florida. Later, it was discovered that Select Builders had perpetrated a fraud
upon the court in obtaining the order expunging the docu,ment. The trial court
vacated its prior order, and the appellees moved for sanctions and fees. The
court also ordered Select Builders to take steps to preserve the status quo and
to make payment of monies it received in connection with the sale of some of
the property subject to the injunction to a third party. Select Builders then
filed a notice of voluntary dismissal, which the trial court struck to retain
jurisdiction over the case.

The appellate court affirmed, concluding that the court correctly retained
jurisdiction to prevent a fraud on the court. "The plaintiff had obtained the
~Irmative relief it sought, its actions in the cause in the trial co.urt may have
been fraudulent on the court and it certainly was within its inherent power (as
an equity court) to protect its integrity." Id. at 1091. The court distinguished
other cases in which· the plaintiffs right to take a voluntary dismissal was
. deemed absolute: I'First, the plaintiff in the cited cases had not received
affirmative relief from an equity court and, secondly, no question of fraud on
the court was involved." Id.

 In Select Builders the plaintiff obtained affirmative relief by the granting of

the suspect injunction, and it had obtained such relief by fraud. Comparing
the facts of Select Builders to this case, we find that the BNY Mellon had not
obtained any type of affirmative relief. Even if the assignment of mortgage was
('fraudulent" in that it was not executed· by the proper party, it did not result in
any relief in favor of BNY Mellon. Select Builders is thus distinguishable from
the present case. In Bevan v. D'Alessandro, 395 So. 2d 1285, 1286 (Fla. 2d
DCA 1981), the court likewise distinguished Select Builders on the grounds
that the ('plaintiff had received affirmative relief to which he was not entitled
and sought to avoid correction of the trial court's error by taking a voluntary
dismissal." No such circumstance is present in this case.

The appellant argues that rule 1.540(b) also provides a method to seek relief
from a notice of voluntary dismissal. We disagree that the defendant/ appellant
may utilize that rule where the defendant has not been adversely affected by
thevoluntary dismissal. Rule 1.540(b) allows a court to relieve a party from a
"final judgment, decree, order, or proceeding" based upon any of five grounds
set out in the rule: (1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence; (3) fraud or other misconduct of an adverse party;
(4) that the judgment or decree is void; or (5) that the judgment or decree has
be.en satisfied or released. A notice of voluntary dismissal constitutes a
, "proceeding" within the meaning of the rule. See ,Miller v. Fortune Ins. Co., 484
So. 2d 1221, 1224 (Fla. 1986). Therefore, the rule may be invoked, even
though for all other purposes the trial court has lost jurisdiction over the
cause. Id. Indeed, in Shampaine Industries, Inc. v. South Broward Hospital
District, 411 So. 2d 364, 368 (Fla. 4th DCA 1982), approved by the supreme
court in Miller, we held: "Rule 1. 540(b) may be used to afford relief to all
litigants who can demonstrate, the existence of the grounds set out in the
Rule."

The rule, however, is limited to relieving a party of a judgment, order or

proceeding. "Relieve" means ,"[t]o ease or alleviate (pain, distress, anxiety,
need, etc.) ... to ease (a person) of any burden, wrong, or oppression, as by
legal means." The Random House Dictionary' of the English Language 1212
(1967). A defendant may obtain such ,"relief' when a plaintiff has obtained a
ruling that has adversely impacted the defendant. Here, the defendant has not
been adversely impacted by a ruling of the court. The fact that a defendant
may have incurred attorney's fees and costs is not an adverse impact
recognized as meriting relief. See Servo Experts, LL C v. Northside Air
Conditioning & Elec. Servo Inc., 2010 WL 4628567 (Fla. 2d DCA 2010).
Therefore, because the defendant has not suffered an adverse ruling or impact
from the notice of voluntary dismissal, he is not entitled to seek relief pursuant
to the rule.

 The dissent is certainly correct that a court possesses the authority to

protect judicial integrity in the litigation process. However, the cases cited in
support of a court exercising such authority all involved the court granting a
motion for involuntary dismissal where the plaintiff had engaged in deceitful
conduct during a still pending case. See Ramey v. Haverty Fum. Co., 993 So.
2d 1014, 1020 (Fla. 2d DCA 2008); McKnight v. Evancheck, 907 So. 2d 699,
700 (Fla. 4th DCA 2005); Morgan v. Campbell, 816 So. 2d 251,253 (Fla. 2d
DCA 2002). In each of those proceedings, the defendant moved for the
sanction of dismissal of an ongoing proceeding based upon "fraud on the
court." That term has been described as follows:

A "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 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). Dismissal is a
remedy to be used only in the most extreme cases, as fflgjenerally speaking, ...
allegations of inconsistency, nondisclosure, and even falseness, are. best
resolved by allowing the parties to bring them to the jury's attention through
cross examination or impeachment, rather than by dismissal of the entire
action." Granados v. Zehr, 979 So. 2d 1155, 1158 (Fla. 5th DCA 2008)
(emphasis added).

Here, we do not view it as an appropriate exercise of the inherent authority

of the court to reopen a case voluntarily dismissed by the plaintiff simply to
exercise that authority to dismiss it, albeit with prejudice. Only in those
circumstances where the defendant has been seriously prejudiced, as noted in
Romar International, should the court exercise its inherent authority to strike a
notice of voluntary dismissal.· The defendant in this case does not allege any
prejudice to him· as a result of the plaintiffs voluntary dismissal of its first
lawsuit. Indeed, he may have benefitted by forestalling the foreclosure.

The appropriate procedure is to follow Rule 1.420. Upon the voluntary

dismissal, Pino would be entitled to his costs and possibly his attorney's fees.
See Fleet Servs. Corp. v. Reise; 857 So. 2d 273 (Fla. 2d DCA 2003). The court
can require payment as a precondition to the second suit. See Fla. R. Civ. P.
1.420(d). Moreover, a referral of the appellee's attorney for a violation of the
Code of Professional Responsibility for filing the complaint with the alleged
false affidavit is in order.

We conclude that this is a question of great public importance, as many,

many mortgage foreclosures appear tainted with suspect documents. The

 defendant has requested a denial of the equitable right to foreclose the

mortgage at all. If this is an available remedy as a sanction after a voluntary
dismissal~ it may dramatically affect the mortgage foreclosure crisis in this
State. Accordingly we certify the following question to the Florida Supreme
Court as of great public importance:

DOES A TRIAL COURT HAVE JURISDICTION AND AUTHORITY

UNDER RULE 1.540(b), Fla. R. Civ. P., OR UNDER ITS INHERENT
AUTHORITY TO GRANT RELIEF FROM A VOLUNTARY DISMISSAL
WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE
PROCEEDINGS BUT NO AFFIRMATWE RELIEF ON BEHALF OF THE
PLAINTIFF HAS BEEN OBTAINED FROM THE COURT?

Affirmed.

GROSS, C.J., STEVENSON, TAYLOR, MAY, DAMOORGIAN, CIKLIN, GERBER and LEVINE,

JJ., concur.

HAZOURI, J., recused.

POLEN, J., dissents with opinion.

POLEN, J., dissenting. 2

Rule L420(a)(l) allows a plaintiff to voluntarily dismiss a case simply by

serving a notice at any time before trial or heari~g on summary judgment.
Initially in Randle-Eastern Ambulance Service v. Vasta, 360 So. 2d 68 (Fla.
1978), the court held that such a dismissal took the case out of the power of
the court for all purposes, explaining:

"The right· to dismiss one's own lawsuit during the course of

trial is guaranteed by Rule 1.420(a), endowing a plaintiff with
unilateral authority to block action favorable to a defendant which
the trial judge might be disposed to approve. The effect is to
remove completely from· the court's consideration the power to
enter an order, equivalent in all respects to a deprivation of
jurisdiction'. If the trial judge loses the ability to exercise judicial
discretion or to a<ijudicate the cause in any way, it follows that he
has no jurisdiction to reinstate a dismissed proceeding. The policy
reasons for this consequence support its apparent rigidity." .

2 This dissent was actually written by Judge Gary M. Farmer, who retired from this
court December 31, 2010. As Judge Farmer can no longer participate in this matter,
and since I concurred with his proposed dissent, I now adopt in total his writing.
Although I thoroughly agree with this dissent, I want the record to reflect that the
. words are those of Judge Farmer.

6
360 So. 2d at 69. But later in Miller v. Fortune Insurance Co., 484 So. 2d 1221
(Fla. 1986), the court retreated, from its statement in Randle-Eastern
Ambulance about the "remov[ing the cause] completely from the court's
consideration the power to enter an order." Instead the Miller court specified
an exception in rule 1.540(b) to the complete loss of jurisdiction from a
voluntary dismissal:

"A trial judge is deprived of jurisdiction, not by the manner in

which the proceeding is terminated, but by the sheer fmality of the
act, whether judgment, decree, order or stipulation, which
concludes litigation. Once the litigation is terminated and the time
for appeal has run, that action is concluded for all time. There is
one exception to this absolute :finality, and this is, rule 1.540,
which gives the court jurisdiction to relieve a party from the act of
fmality in a narrow range of circumstances." [e.s.]

484 So. 2d at 1223. Miller explicitly held that "that Rule 1.540(b) may be used
to afford relief to all litigants who can demonstrate the existence of the grounds
set out under the rule."3 In this case, defendant contends that the court had
'authority here to consider his motion for relief on the merits because he
asserted a specific ba~is authorized by rule 1.540(b).

Rule 1.S40(b)(3) provides:

"On motion and upon such terms as are just, the court may relieve
a party ... from a final judgment, decree, order, or proceeding for ...
,fraud (whether ... intrinsic or extrinsic), misrepresentation. or other
misconduct of an adverse party." [e.s.]

In Select Builders of Florida v. Wong, 367 So. 2d 1089 (Fla. 3d DCA 1979), the
Thi,rd Dlstrict agreed that rule 1.S40(b) affords a basis to strike a notice of
voluntary dismissal flIed to avoid sanctions for relief from the dismissal on"
account of fraudulent conduct. In explaining its decision, the court noted that
in that instance "plaintiff had obtained' the affirmative relief it sought, its
actions in the cause in the trial court may have been fraudulent on the court
and it certainly was within its inherent power (as an equity court) to protect its
integrity." 367 So. 2d at 1091. I do not read Select Builders to explicitly hold
that "affirmative relief" is required to establish grounds under rule 1.S40(b) for

3 484 So.2d at 1224 (citing Shampaine Indus. v. S. Broward Hosp. Dist., 411 So. 2d,
364 (Fla. 4th DCA 1982)).

7
 relief from a voluntary dismissal done to prevent examination into an
attempted fraud on the court. 4

In U.S. Porcelain, Inc. v. Breton, 502 So. 2d 1379 (Fla. 4th DCA 1987), we
tacitly recognized the Select Builders exception but found it inapplicable where
"[tJhere· are no findings nor conclusions in this case of fraud, deception,
irregularities, nor any misleading of the court." 502 So. 2d at 1380. Our
agreement with the holding in Select Builders· evinces no attempt to narrow the
exception to traditional common law fraud, indeed adding as other forms of
fraudulent conduct "deception, irregularities, [] or any misleading of the court."
[e.s.]

The fact that the fraud exception applied in Select Builders is now commonly
recognized as valid under Miller v Fortune Insurance is seen in the following
exposition on the subject from the standard Florida legal encyclopedia:

"In exercising its inherent power to protect its integrity, the trial
court is authorized to reinstate a matter and retains jurisdiction
over the cause, in order to prevent a fraud on the court, where it
appears the plaintiff has perpetrated fraud upon the court to
obtain a voluntary dismissal. The original jurisdiction over the
dismissed cause first acquired continues for the purpose of
entertaining arid deciding all appropriate proceedings brought to
reopen the case, .either by means of an independent equity suit
directed against the fraudulently induced order or judgment to
have it set aside or by means of a direct motion filed in the case
itself praying that the order of dismissal be vacated and the cause
returned to the docket of pending cases."

.1" FLA.JUR.2D, Actions § 231 (citing Select Builders); see also Roger A. Silver, The
Inherent Power Of The Florida Courts, 39 U. MIAMI L. REv. 257, 287 (1985)
·("Florida courts have ... inherent power ... to strike a voluntary dismissal" (citing
Select Builders)); Henry P. Trawick Jr., TRAWICK'S FLORIDA PRACTICE & PROCEDURE
. § 21:2 (Citing Select Builders); 25 TRIAL ADVOCATE QUARTERLY 22, 23 (discussing
.Select Builders). All the texts base the court's authority to grant relief on the
inherent power of the judges to protect the integrity of the court system in the
litigation process.

In opposing defendant's motion for relief under rule 1.540(b), BNY Mellon
relies on Bevan v. D'Alessandro, 395 So. 2d 1285 (Fla. 2d DCA 1981). There
the court recognized the fraud exception to the voluntary dismissal rule but
held it inapplicable where plaintiff did not obtain any relief and the act of filing

4 See also Romar Int'l v. Jim Rathman Chevrolet/Cadillac, Inc., 420 So. 2d 346, 347
(Fla. 5th DCA 1982) (recognizing "narrow exception exists where a fraud on the court
is attempted [e.s.] by the filing of the voluntary dismissal").
8
the voluntary dismissal did not actually rise to the level of a fraud on the
court. s BNY Mellon argued that, similarly, it had obtained no relief or benefit
at that point in the action from the filing of the revised assignment. In denying
defendanes motion for relief under rule 1.540(b), the trial judge appeared to
rely heavily on Bev.an and that argument of BNY Mellon. Curiously neither
Bevan nor BNY Mellon makes any attempt to argue why, as a matter of simple
jurisprudence, courts should be precluded from scrutinizing the use of a
voluntary dismissal after an unsuccessful attempt to deceive, mislead or
defraud a court by producing and filing spurious documents and instruments
on which to base a claim in suit.

It is apparent to me that BNY· Mellon actually did achieve some benefit by its
dismissal. In voluntarily dismissing the case at that point, it thereby avoided
. the scheduled depositions of the persons who might have direct knowledge of
an attempted fraud on the court. In fact, it is fair to conclude that the only
purpose in dismissing was to shelter its agents from having to testify about the
questionable documents. It continued to use the voluntary dismissal to stop
the trial court from inquiring into the matter, arguing the absence of
jurisdiction to do so. To the extent that Miller v Fortune Insurance can be read
to require, as a precondition to relief under rule 1.540(b) from a voluntary
dismissal, that the false document benefited the filer in some way, we conclude
that any necessary benefit has been shown in this case.

Nor dO I find the recent decision in Service Experts LLC v. .Northside Air
Conditioning & Electric Services, 2010 WL 4628567 (Fla. 2d DCA Nov. 17,
2010), apposite to the issue in this case. There, plaintiff filed a voluntary
dismissal of the action "after almost two years of litigation, after [defendants]
served offers of-judgment, after .the close of discovery, and after [defendants]
inoved for summary judgment." 2010 WL 4628567 at *1. Defendants moved
under rule 1.42CP to strike the voluntary dismissal, arguing that earlier in the
case plaintiff had filed "fraudulent affidavits." The trial court di4 not determine
whether a fraud on the court had occurred. Instead it found that defendants
had satisfied the common law exception to rule 1.420 allowing for voluntary
dismissals by showing they "acquired substantive rights in the outcome of [the]
matter by the filing of the motion for summary judgment, by making offers of
judgment and by setting forth convincing allegations of fraud, all of which
would be lost if the dismissal without prejudice were allowed to stand." 2010

5 We note that Bevan was decided several years before the supreme court decided·
Miller v. Fortune Insurance.
6 Defendants said that their motion to strike the notice of voluntary dismissal was not
made under rule 1.540 because that rule applies to final judgments, decrees, orders.
or proceedings, and the voluntary dismissal they sought to set aside was not a fmal
judgment, decree, or order. The Second District agreed with that "procedural
assessment."

9
·WL 4628567 at *1. Accordingly, it gave the parties the option of going to trial
or scheduling an evidentiary hearing on whether there had actually been any
fraud on the court. Plaintiff thereupon appealed that order on the grounds
that it infringed its right of voluntary dismissal. Because Service Experts is
obviously based solely on rule 1.420, rather than on a showing of fraud for
relief under rule 1.S40(b), it is not dispositive of the issue presented in this
case.

But, in any event, I disagree with Select Builders, Bevan and Service Experts
to the extent of any holding that affirmative relief or even some other benefit is
necessary for relief from a voluntary dismissal filed after an attempted fraud on
the court has been appropriately raised. Nothing in the logic of Miller v.
Fortune Insurance allowing rule 1.540(b) to be used to avoid a voluntary
dismissal on the grounds of fraud requires that such fraud must actually
. achieve its purpose. The purpose served by punishing a fraud on a court does
not lie in an indispensable precondition of detrimental reliance - i.e., in
successfully deceiving a court into an outcome directly resulting from fraud­
but in the mere effort itself to try to use false and fraudulent evidehce in a
courtproceeding. 7 As with criminal law, where the failed attempt itself is an
offense punished by law,S the power of courts to grant relief from presenting
false or fraudulent evidence and imposing sanctions is not confined solely to
instances when fraud directly results in an unjust, erroneous judgment.

Indeed there are a number of reported decisions by Florida courts imposing

sanctions on a party presenting false or fraudulent evidence without any
affIrmative relief or a final determination on the merits.. See, e.g., Ramey v.
Haverty Fum. Co., 993 So. 2d 1014, 1019 (Fla. 2d DCA 2008) (upholding
sanction of dismissal for misrepresentations in discovery about prior medical
treatment "directly related to the central issue in the case"); McKnight v.
Evancheck, 907 So. 2d 699, 700 (Fla. 4th DCA 2005) (affirming dismissal for

7 See Lance lJ. Wade, 457 So. 2d 1008, 1011 (Fla. 1984) (common law fraud requires
showing that defendant deliberately and knowingly made false representation actually
causing detrimental reliance by the plaintiff); see also Palmas y Bambu, S.A. lJ. E.!.
DuPont de Nemours & Co., 881 So. 2d 565, 573 (Fla. 3d DCA 2004) (when frauduient
misrepresentation is alleged direct causation can be proved only by establishing
detrimental reliance).

8 See§ 777.04(1), Fla. Stat. (2010) (criminalizing and punishing attempts to commit
an offense prohibited by law even though the accused fails in the perpetration or is
intercepted or prevented in the execution thereof); see also § 817.54 Fla. Stat. (2010)
(third degree felony to - with intent to defraud - "obtain[] the signature of any person
to any mortgage, mortgage note, promissory note or other instrument evidenCing a
debt by color or aid of fraudulent or false representation or pretenses, or obtain[J the
signature of any person to a mortgage, mortgage note, promissory note, or other
instrument evidencing a debt,· the false making whereof would be punishable as
forgery") .
10
 fraud on the court where trial court found plaintiff "lied about his extensive
medical history, which had a direct bearing on his claim for damages"); Morgan
v. Campbell, 816 So. 2d 251,.253 (Fla. 2d DCA 2002) (false testimony in
discovery "directly related to the central issue in the case"). We are hard
pressed to distinguish in substance the imposition of sanctions in those cases
from the one at hand.

One federal appellate decision makes the point well. In Aoude v. Mobil Oil
. Corp., 892 F.2d 1115 (1st Cir.1989), the plaintiff filed a complaint based upon
a bogus contract and attached that bogus document to its complaint. When
the defendant became aware of the falsity of the contract sued upon, it moved
to dismiss the case for the attempted fraud on cou·rt. The trial court granted
the motion. When plaintiff later refiled its claim and attached the real contract,
defendant again moved to dismiss, arguing that the dismissal of the first case
barred the claim permanently. The trial court again granted the motion. The
court of appeals affirmed both holdings. In an appeal plaintiff argued that the
attempted fraud arising from the use of the bogus agreement had no effect
ultimately on defendant's ability to litigate the case or on the court's ability to
make a just decision on the merits. The court rejected the argument on appeal
that the attempt to defraud the court had failed and thus could escape
pUnishment, responding:

"Th e failure of a party's corrupt plan does not immunize the

defrauder from the consequences of his misconduct. When
[plaintiff) concocted the agreement, and thereafter when he and his
counsel annexed it to the complaint, they plainly thought it
material. That being so, '[t]heyare in no position now to dispute
its effectiveness.' "

892 F.2d at 1120.

I·
So, too, BNY Mellon's attempt to allege and file the assignment of the
Ii mortgage was undeniably based on a belief in the necessity for - and the
I materiality of - a valid assignment of mortgage.· Defendant's colorable
t
showing of possible fraud in the making and filing of the assignment led to the
scheduling of the depositions of those involved in making the document and
the notice of depositions led directly to the voluntary dismissal to avoid such
scrutiny for an attempted fraud. As Aoude force~lly makes clear, a party
should not escape responsibility and appropriate sanctions for unsuccessfully
attempting to defraud a court by purposefully evading the issue through a
voluntary dismissal. .
."

This issue is one of unusual prominence and importance. Recently, the

Supreme Court promulgated changes to a rule of procedure made necessary by
the current wave of mortgage foreclosure litigation. See In re Amendments to

11
 Rules of Civil Procedure, 44 So. 3d 555 (Fla. 2010). In approving one
. amendment, the court pointedly explained:

"[R]ule 1.110(b) is amended to require verification of mortgage

foreclosure complaints involving residential real property. The
primary purposes of this amendment are (1) to provide incentive
for the plaintiff to appropriately investigate and verify its ownership
of the note or right to enforce the note and ensure that the
allegations in the complaint are accurate; (2) to conserve judicial
resources that are currently being wasted 0 n inappropriately
pleaded 10st note' counts and inconsistent allegations; (3) to
prevent the wasting of judicial resources and harm to defendants
resulting from suits brought by plaintiffs no·tentitled to enforce the
note; and (4) to give trial courts greater authority to sanction
plaintiffs who make false allegations." [e.s.]

44 So. 3d at 556. I think this rule change adds significant authority for the
court system to take appropriate action when there has been, as here, a
colorable showing of false or fraudulent evidence. We read this rule change as
an important refutation of BNY Mellon's lack of jurisdiction argument to avoid
dealing with the issue founded on inapt procedural arcana.

Decision-making in our courts depends on genuine, reliable evidence. The

system cannot tolerate even an attempted use of fraudulent documents and
false evidence in our courts. The judicial branch long ago recognized its
responsibility to deal with, and punish, the attempted use of false and
fraudulent evidence. When such an attempt has been colorably raised by a
. party, courts must be most vigilant to address the issue and pursue it to a
resolution.

I would hold that the trial judge had the jurisdiction and authority to
consider the motion under rule 1.540(b) on its merits and. - should the court
find that a party filed a false and fraudulent document in support of its claim
- to take appropriate action, including (without limitation) the striking ofa
voluntary dismiss8I filed in aid of such conduct. .

".
'" *
Appeal of a non-final order from the Circuit Court for the Fifteenth Judicial
Circuit,Palm Beach County; Meenu Sasser, Judge; L.T. Case No. 50 2008 CA
031691 XXXXMB.

Enrique Nieves III and Chris T. Immel of Ice Legal, P.A" West Palm Beach,
for appellant.

12
 Nancy M. Wallace, Katherine E. Giddings and William P. Heller of Akerman
Senterfitt, Tallahassee and Fort Lauderdale, for appellee.

Not final until disposition of timely filed motion for rehearing.

13

 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD" WEST PALM BEACH, FL 33401

March 30, 2011

CASE NO.: 4D10-378

L.T. No. : 502008CA031691 XXXX
MB

ROMANPINO v. THE BANK OF NEW YORK

MELLON, ETC., ET AL.

Appellant I Petitioner(s), Appellee I Respondent(s).

BY ORDER OF THE COURT:

ORDERED that appellant's emergency motion filed March 28, 2011 for expedited
determination of pending motion for clarification is hereby granted.

I HEREBY CERTIFY that the foregoing is a true copy of the original court order.

Served:
Enrique Nieves III Katherine E. Giddings Mortgage Electronic Registrati
Forrest G. Mcsurdy Nancy M. Wallace

Ic

~,6~tU

RilNfBElIITENMULLER, Clark
Fourth District Court of Appeal
 •

FOURTH DISTRICT COURrOF APPEAL F ILED

1525 PALM BEACH LAKES BLVD. THOMAS O. HALL
WEST PALM B:EACH, FLORIDA 33401 .
(561) 242-2000 lOll APR - 8 P S: '3
ApriIS.2011 CLERK. SUPREME COURT

Re: Roman Pino v. The Bank of New York Mellon 8Y_

Case No: 4D10-378
Trial Court No: 502008 CA 031691 XXXXMB
Trial Court Judge: Meenu Sasser

Dear Mr. Hall:

Attached is a certified copy of the Notice to Invoke Jurisdiction to the Supreme Court pursuant to Rule
9.120, Florida Rules of Appellate Procedure. Attached also is this Court's opinion or decision relevant
to this case.

--1L The filing fee prescribed by Section 25.241(3), Florida Statutes, was received by this court
and will be mailed.

_ _The filing fee prescribed by Section 25.241(3), Florida Statutes, was not received by this court.

_ Petitioner/Appellant has been previously detennined insolvent by the circuit court or our
court.

__ Petitioner/Appellant has already filed, and this court has granted, petitioner/appellant's
motion to proceed without payment of costs in this case.

No filing fee is required in the underlying case in this court because it was:
_ A Summary Appeal (Rule 9.141)
__ From the Unemployment Appeals Commission
_ A Habeas Corpus proceeding
A Juvenile case
Other - 3.850

Ifthere are any questions regarding this matter, please do not hesitate to contact this Office.

Sincerely,

MARILYN BEUTTENMULLER
~ CI ~ of the Co~·. '