DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JONIDA GOGA, GENTIAN ZELKA, J.Z., a minor,

and A.Z., a minor,

Appellants,

v.

PUBLIX SUPERMARKETS, INC.,

Appellee.

No. 4D2023-0011

[January 24, 2024]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Barbara Anne McCarthy, Judge; L.T. Case No. CACE20-

015950.

Annabel C. Majewski of Wasson & Associates, Chartered, Miami, and 

Morton Antman of Morton Antman, P.A., Fort Lauderdale, for appellant

Jonida Goga.

Edward George Guedes and Richard Bradlee Rosengarten of Weiss 

Serota Helfman Cole & Bierman, P.L., Coral Gables, for appellee.

CONNER, J.

The plaintiff appeals the dismissal of her personal injury action filed 

after she slipped and fell at the defendant’s store. Dismissal was granted 

for fraud on the court. Because we determine the trial court did not 

properly balance the policy favoring adjudication on the merits with 

competing policies to maintain the integrity of the judicial system, we 

affirm in part, reverse in part, and remand for further proceedings.

Background

The plaintiff sued the defendant, alleging she slipped and fell at one of 

its stores. She alleged her slip and fall was caused by another customer 

dropping green dish soap on the floor. Her injuries resulted in seven 

months of medical treatment to her spine.
2

More than two years after her slip and fall, and more than a year after 

her last medical treatment, the plaintiff answered interrogatories which 

included a question asking her to specify the injured parts of her body and 

the effects of injuries which she claimed were permanent. Her response 

stated, among other things, that she: “Cannot lift anything heavy. Can’t

do any physical/sport activities can’t walk or stand for long periods. . . . 

[C]an’t go places with both children alone. . . . Severe pain post-op. . . . Not 

a mother I was. 34 years old will never be able to do activities I did pre 

fall.”

Less than a month later, the plaintiff was deposed, and the defendant’s 

attorney asked questions about how injuries from her fall limited her 

abilities. The plaintiff testified unequivocally that she could not lift her 

young children and had not lifted them at all since her fall. She also 

testified unequivocally that she could not bend at the waist. When asked 

to describe “is there anything that you cannot do now that you used to do 

before,” her response was “[T]here’s a lot of can’ts.” Specific deposition 

answers painted a picture of severe limitations in terms of range of motion, 

standing, walking, and lifting.

Three months after her deposition, the plaintiff answered a 

supplemental interrogatory regarding her claim for past and future income 

and benefit losses and earning capacity. Her response again painted a 

picture of severe limitations.

During the three months preceding the plaintiff’s initial response to 

interrogatories and her deposition, the defendant had hired a private 

investigator to conduct video surveillance of the plaintiff’s activities. The 

investigator conducted three different video surveillances during that 

three-month period. Between the dates of the plaintiff’s deposition and 

her supplemental interrogatory response, the investigator filmed another 

video surveillance. After the plaintiff’s supplemental interrogatory 

response, the investigator filmed two more video surveillances.

Based on the information gleaned from the video surveillances, the 

defendant filed a motion to dismiss for fraud on the court. The motion 

contended the plaintiff’s sworn discovery responses and deposition 

testimony demonstrated that the plaintiff “made a conscious choice to 

repeatedly lie under oath about her injuries and limitations, in an attempt 

to gain an unfair advantage in this litigation.” Citing Willie-Koonce v. Miami 

Sunshine Transfer & Tours Corp., 233 So. 3d 1271 (Fla. 3d DCA 2017), as 

“extremely analogous,” the motion contended the entire action should be 

dismissed for fraud on the court.
3

The trial court conducted an evidentiary hearing on the motion to 

dismiss, viewing the several videos described in the motion to dismiss. 

Multiple videos depicted the plaintiff picking up and carrying her children 

across parking lots, loading and unloading her vehicle with multiple bags 

of purchases, walking, and bending at the waist, all without any hesitancy 

or movements indicating pain or limitations. The plaintiff testified at the 

hearing and was given the opportunity to explain the apparent 

discrepancies between her sworn discovery and deposition statements as 

compared to what was depicted in the videos.

The trial court entered a detailed order with extensive findings of fact, 

granted the motion, and dismissed the entire action with prejudice. The 

trial court specifically found by clear and convincing evidence that the 

plaintiff intentionally lied on multiple occasions about her limitations, her 

testimony at the evidentiary hearing was not credible, and the cumulative 

effect of the plaintiff’s lies was evidence of “[t]he plaintiff’s gamesmanship 

and disrespect for the judicial process.” The trial court found the plaintiff’s 

lies permeated the entire proceeding and justified dismissal of the entire 

action.

After the trial court entered its judgment of dismissal, the plaintiff gave 

notice of appeal.

Appellate Analysis

“A trial court’s dismissal of a claim for fraud upon the court is reviewed 

under a more stringent abuse of discretion standard, as the trial court’s 

discretion is narrowed where dismissal is imposed as a sanction for 

fraudulent conduct.” Beseler v. Avatar Prop. & Cas. Ins. Co., 291 So. 3d 

137, 139 (Fla. 4th DCA 2020). Fraud on the court must be established by 

clear and convincing evidence. Arzuman v. Saud, 843 So. 2d 950, 952 

(Fla. 4th DCA 2003). Additionally, “[t]he standard of appellate review of a 

‘clear and convincing finding’ is whether the finding is supported by 

competent, substantial evidence.” Herman v. Intracoastal Cardiology Ctr., 

121 So. 3d 583, 588 (Fla. 4th DCA 2013); Wigley v. Hares, 82 So. 3d 932, 

946 (Fla. 4th DCA 2011).

The plaintiff contends that the trial court’s dismissal of the action is 

erroneous because it was not based upon clear and convincing evidence. 

Specifically, the plaintiff argues that the defendant failed to prove the 

plaintiff knowingly and intentionally prevented the defendant from 

defending against her claim. The plaintiff also argues dismissal of the 

entire action was an abuse of discretion where the defendant is not 

prejudiced, and a lesser sanction will suffice.
4

The defendant responds that dismissal of an entire action is proper

where “plaintiffs [] are caught swearing to unequivocal falsehoods, as 

opposed to debatable characteristics, and where the trial court finds 

unbelievable the culpable plaintiff’s attempts to explain away their false 

testimony.”

“The trial court has the inherent authority, in the exercise of its sound 

judicial discretion, to dismiss an action when the plaintiff has perpetrated 

a fraud on the court. . . .” Herman, 121 So. 3d at 588 (quoting Kornblum 

v. Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992)).

In Arzuman, we said:

The requisite fraud on the court occurs where “it can be 

demonstrated, clearly and convincingly, that a party has 

sentiently set in motion some unconscionable scheme 

calculated to interfere with the judicial system’s ability 

impartially to adjudicate a matter by improperly influencing 

the trier of fact or unfairly hampering the presentation of the 

opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 

892 F.2d 1115, 1118 (1st Cir. 1989). When reviewing a case 

for fraud, the court should “consider the proper mix of factors” 

and carefully balance a policy favoring adjudication on the 

merits with competing policies to maintain the integrity of the 

judicial system. Id. at 1117–18. Because “dismissal sounds 

the ‘death knell of the lawsuit,’ courts must reserve such 

strong medicine for instances where the defaulting party’s 

misconduct is correspondingly egregious.” Id. at 1118.

843 So. 2d at 952 (quoting Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 

1998)). Notably, dismissal for fraud on the court is a severe remedy; 

therefore, to sustain a dismissal, the fraud must be established by clear 

and convincing evidence. Id. (citation omitted); see also Gilbert v. Eckerd 

Corp. of Fla., Inc., 34 So. 3d 773, 776 (Fla. 4th DCA 2010) (“It is the moving 

party’s burden to establish by clear and convincing evidence that the nonmoving party has engaged in fraudulent conduct warranting dismissal.”) 

(citation omitted).

Because this remedy is so severe, dismissal should be applied only in 

the most extreme circumstances. Gilbert, 34 So. 3d at 776; see also

Kornblum, 609 So. 2d at 139 (“Because dismissal is the most severe of all 

possible sanctions, it should be employed only in extreme 

circumstances.”). “Courts act cautiously in dismissing on this basis 
5 

because the Florida Constitution guarantees court availability to every 

person to redress injury.” Perrine v. Henderson, 85 So. 3d 1210, 1211 (Fla. 

5th DCA 2012) (citations omitted). 

“When imposing the sanction of dismissal for fraud upon the court, trial 

courts should weigh the ‘policy favoring adjudication on the merits’ with 

the need to ‘maintain the integrity of the judicial system.’” Herman, 121 

So. 3d at 588 (quoting Arzuman, 843 So. 2d at 952). “The integrity of the 

civil litigation process depends on truthful disclosure of facts. A system 

that depends on an adversary’s ability to uncover falsehoods is doomed to 

failure, which is why this kind of conduct must be discouraged in the 

strongest possible way.” Cox, 706 So. 2d at 47. Thus, “[a] trial court has 

the inherent authority to dismiss a plaintiff’s entire case when there is 

clear and convincing evidence that the plaintiff has committed ‘a fraud on 

the court which permeates the entire proceedings.’” Chacha v. Transp. 

USA, Inc., 78 So. 3d 727, 730 (Fla. 4th DCA 2012) (quoting McKnight v. 

Evancheck, 907 So. 2d 699, 700 (Fla. 4th DCA 2005)). 

In balancing the policy favoring adjudication on the merits with 

competing policies to maintain the integrity of the judicial system, trial 

courts must keep in mind that “[m]isconduct that falls short of the rigors 

of [the fraud on the court] test, including inconsistency, nondisclosure, 

poor recollection, dissemblance and even lying, is insufficient to support a 

dismissal for fraud, and, in many cases, may be well-managed and best 

resolved by bringing the issue to the jury’s attention through crossexamination.” Perrine, 85 So. 3d at 1212 (emphasis added) (citations 

omitted). “In other words, ‘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.’” Wenwei Sun v. Aviles, 53 So. 3d 

1075 (Fla. 5th DCA 2010) (quoting Granados v. Zehr, 979 So. 2d 1155, 

1158 (Fla. 5th DCA 2008)). However, “utterly deceitful behavior . . . most 

certainly fits the standard for dismissal of the[] suit.” Id. at 1078. The 

multiplicity of the deceit is also a factor to be considered in determining if 

there is an “unconscionable scheme calculated to interfere with the 

judicial system’s ability impartially to adjudicate a matter by improperly 

influencing the trier of fact or unfairly hampering the presentation of the 

opposing party's claim or defense.” Aviles, 53 So. 3d at 1077 (citation 

omitted); see also Perrine, 85 So. 3d at 1211 (citation omitted). 

The determination of whether clear and convincing evidence of an 

unconscionable scheme exists “will almost always require an evidentiary 

hearing.” Bologna v. Schlanger, 995 So. 2d 526, 528 (Fla. 5th DCA 2008); 

see also Gilbert, 34 So. 3d at 777 (“[W]e believe the better practice is for 
6

the trial court to conduct an evidentiary hearing on the motion and make 

specific findings.”). The trial court in the instant case conducted an 

evidentiary hearing, offering the plaintiff the opportunity to explain the 

discrepancies between her sworn discovery and deposition statements and 

the video evidence in support of the motion to dismiss.

Our preliminary determination is whether the trial court’s findings are 

supported by competent, substantial evidence. If that standard is met, we 

then review the trial court’s legal conclusions for abuse of discretion.

In reviewing a true discretionary act, the appellate court must 

fully recognize the superior vantage point of the trial judge and 

should apply the “reasonableness” test to determine whether 

the trial judge abused [their] discretion. If reasonable 

[persons] could differ as to the propriety of the action taken 

by the trial court, then the action is not unreasonable and 

there can be no finding of an abuse of discretion.

Bass v. City of Pembroke Pines, 991 So. 2d 1008, 1011 (Fla. 4th DCA 2008) 

(quoting Morgan v. Campbell, 816 So. 2d 251, 252 (Fla. 2d DCA 2002))

(other quotation marks omitted). Additionally, we have said in reviewing 

an order granting dismissal that the appellate court should defer to the 

“specific findings by the trial court” where the trial court has had the 

opportunity to evaluate the credibility of the plaintiff as to explanations for 

the identified discrepancies in the plaintiff’s statements, even if the 

reviewing court determines the evidence shows a “close call.” Herman, 121 

So. 3d at 589.

Our review of the record confirms competent, substantial evidence was 

presented to support the trial court’s finding that, clearly and 

convincingly, the plaintiff had intentionally lied about the extent of her 

movement limitations and pain after medical treatment for her fall in the 

defendant’s store. More importantly, the trial court specifically found the 

plaintiff’s explanations for the discrepancies between her sworn discovery 

and deposition statements and the surveillance videos were not credible. 

The trial court further found the plaintiff’s testimony at the evidentiary 

hearing was not only “incredulous,” but demonstrated “the plaintiff’s 

gamesmanship and disrespect for the judicial process.” The trial court 

determined “[t]he record evidence demonstrates and supports the 

plaintiff’s willingness under oath to withhold or distort the truth to achieve 

her own objectives comprehensively infects the integrity of this action” and 

the plaintiff “made a conscious choice to repeatedly lie under oath about 

her injuries and limitations, in an attempt to gain an unfair advantage in 

this litigation.”
7

However, we conclude the trial court abused its discretion in dismissing 

the plaintiff’s entire action as a sanction. Instead, given the evidence that 

the plaintiff underwent extensive medical treatment and procedures 

arising from her injuries, the proper remedy was to (1) permit the plaintiff 

to pursue her claim for her medical expenses occurring during her medical 

treatment, which would rely on objective evidence, but (2) preclude the 

plaintiff from pursuing her claims for pain and suffering damages and lost 

wages, which would have relied on the plaintiff’s subjective testimony.

Our analysis focuses on the specific facts of this case which establish

that the plaintiff intentionally lied under oath about the extent of her 

movement limitations and pain. This case is not like the numerous cases

granting dismissal for fraud on the court where the plaintiff lied during 

discovery about prior injuries and prior medical treatment for preexisting 

conditions. The distinction is important because in Kornblum, we 

recognized that in cases “where the misconduct of a party or the party’s 

counsel has permeated the entire proceeding, dismissal of the entire case 

has been upheld, but in others where the fraud or other misconduct 

pertained to only a part of the claim, dismissal of the unaffected legitimate 

part of the claim has been held to be too severe.” 609 So. 2d at 139 

(citations omitted).

We agree “[i]t is well-settled law ‘that a party who has been guilty of 

fraud or misconduct in the prosecution or defense of a civil proceeding 

should not be permitted to continue to employ the very institution [she] 

has subverted to achieve [her] ends.’” Jimenez v. Ortega, 179 So. 3d 483, 

489 (Fla. 5th DCA 2015). However, in reviewing whether the trial court in 

the instant case properly balanced a policy favoring adjudication on the 

merits with competing policies to maintain the integrity of the judicial 

system, we determine Jimenez to be instructive.

In Jimenez, the contested issues were lost wages and pain and 

suffering. Id. at 484. Liability, the costs of the plaintiff’s medical expenses,

and damage to the plaintiff’s truck were not contested. Id. However, the 

plaintiff in Jimenez repeatedly lied under oath about the severity of his 

injuries. Id. at 487. In other words, in Jimenez, the dispute did not revolve 

around objective facts; instead, the dispute involved subjective facts.

The Fifth District determined the appropriate punishment for the 

severity of the plaintiff’s lies about the severity of his injuries was dismissal 

of his claims for pain and suffering and lost wages because those damages 

rely upon an individual’s subjective point of view and are difficult to defend 

against. Id. at 488. However, the Fifth District also observed that 
8 

“misconduct falling short of the test espoused in Cox, including 

inconsistency, nondisclosure, poor recollection, dissemblance, and even 

lying may be insufficient to support a dismissal for fraud.” Id. (emphasis 

added). Additionally, the Fifth District noted that damages for medical 

costs and property loss are easily measured, and for that reason, 

concluded that under the Cox test, “dismissal of the entire action as a 

sanction is unwarranted . . . where the damages for property loss and 

medical expenses were undisputed.” 

Adopting the Fifth District’s reasoning, we determine that the trial court 

did not appropriately balance the policy favoring adjudication on the 

merits with competing policies to maintain the integrity of the judicial 

system. Thus, we conclude that dismissal of the entire action was 

improper.1

Conclusion 

We agree the trial court properly dismissed the portion of the plaintiff’s 

claim for damages regarding pain and suffering and lost wages. That is 

because the plaintiff’s repeated pretrial lies about her limitations and pain 

demonstrate her willingness to lie under oath at trial, which 

“comprehensively infects the integrity of this action” seeking pain and 

suffering damages and lost wages. Thus, we determine that the plaintiff 

should not be allowed to pursue pain and suffering damages or lost wages 

damages because such evidence is prone to rely on the plaintiff’s subjective 

testimony. The plaintiff remains entitled to pursue claims for medical 

expenses because such claims can be determined by objective evidence 

without reliance on the plaintiff’s subjective testimony. 

Thus, we affirm in part, reverse in part, and remand for further 

proceedings consistent with this opinion. 

Affirmed in part, reversed in part, and remanded for further proceedings 

with instructions. 

GROSS and GERBER, JJ., concur. 

* * * 

1 We are not convinced that the Third District’s opinion in Willie-Koonce controls 

the outcome of this case because the opinion does not provide much analysis on 

the issue of balancing the policy favoring adjudication on the merits with 

competing policies to maintain the integrity of the judicial system or deference to 

the trial court’s findings after an evidentiary hearing on the motion to dismiss. 
9

Not final until disposition of timely filed motion for rehearing.