In Florida, Rule 1.540(b)(3) covers the question of fraud or misconduct of an adverse party during a lawsuit. The rule is modeled on a federal rule of civil procedure. Fraud or misconduct “of an adverse party” can include misconduct by either the other party to the lawsuit or his or her attorney. For example, it occurs if a party asks a witness to testify falsely or where an attorney knowingly presents false testimony. It does not include a witness’ own independent fraud, even when such a fraud helps an adverse party’s case.
One type of motion that can be filed if it is discovered that an adverse party committed fraud or misconduct in a lawsuit is a motion for relief from judgment. If a motion for relief from judgment on the basis of fraud is filed, the judge must hold an evidentiary hearing to assess the credibility of the witnesses. Importantly, it is not enough to show a fraud occurred; the party raising the issue must show the other party or his attorney participated in the fraud or knowingly permitted the fraud to go forward.
In a recent car accident case, a motion for relief from judgment became an issue. The case arose from an accident in which the driver of a car was traveling about 35 miles per hour as a motorcycle was waiting to turn left. According to the motorcycle driver he had already come to a stop in the median and was waiting to turn. According to the car driver, the motorcyclist was still in her lane of travel when she hit him; she saw him trying to cross in front of her and he was still moving when she hit him.
The car driver testified she did not skid, but there were skid marks at the scene. The main issue was whether the car was responsible for the accident or whether, as the car driver testified, the motorcyclist was still moving when she hit him. The location of the motorcycle during the accident, as shown by the skid marks, could prove who was responsible.
The motorcyclist’s girlfriend who lived near the accident testified that she arrived minutes after the accident, saw skid marks at the scene and returned a few hours later to take photos of them. The girlfriend also testified that she had personal knowledge that the road had been paved the day before the accident. The motorcyclist’s attorney argued that because the road had just been repaved, the skid marks had to be the car driver’s and her testimony to the contrary was unreliable. The jury returned a verdict for the motorcyclist.
The girlfriend’s testimony was a surprise to the car driver’s attorney who investigated the claim after the trial. The attorney discovered the girlfriend was wrong and the repaving had happened 10 days to 3 weeks before the accident.
The car driver filed a motion for relief from judgment based on newly discovered evidence, rather than fraud. However, the court granted the motion on the basis of the fraud rule without conducting an evidentiary hearing on credibility.
The appellate court acknowledged that there was no requirement for the car driver’s attorney to show due diligence as to the false testimony. But there was no evidence in the record to show that the motorcyclist had participated in the fraud at all. The appellate court reversed and asked the trial court to consider whether with due diligence the new information could have been discovered sooner.
If you or a loved one has been hurt in a car accident, call the experienced South Florida motor vehicle accident attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.
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