Empire World Towers, LLC v. CDR Créances, S.A.S.
89 So. 3d 1034
| Fla. Dist. Ct. App. | 2012Background
- Bank sues Cohens and Corporate Defendants for diverting hotel revenues, siphoning sale proceeds, and funding Florida properties via Offshore Entities and Whitebury, seeking enjoinment and a constructive trust.
- Trial court conducts a three-day evidentiary hearing on Bank's Motion to Strike and, after receipt of evidence, strikes the pleadings for fraud on the court.
- Appellate court consolidates appeals; majority affirms the sanction against the Cohens and Corporate Defendants but reverses as to Lea Cohen.
- Evidence shows forged Whitebury documents, perjury in depositions and affidavits, and suborning of witnesses; corporate nominees implicated in ownership concealment.
- Cohens allegedly provided scripted lies to witnesses and directed others to testify falsely to defeat Bank’s claims; a pattern of misconduct permeating the proceedings.
- Bank sought constructive trust on Florida properties; the Court ultimately upholds the sanction against most defendants while granting partial relief for Lea Cohen.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the striking of pleadings proper? | Bank: clear and convincing evidence of fraud on court. | Cohens: misconduct occurred in related actions; due process concerns. | Affirmed as to Cohens and Corporate Defendants. |
| Is Lea Cohen liable for fraud on the court? | Bank: Lea participated in inducement of testimony. | Lea: no evidence tying her to the fraud. | Reversed as to Lea Cohen; no sufficient evidence. |
| Did the court improperly delegate its decision-making by adopting Bank's order verbatim? | Bank: independent judge issued the order; proper adoption. | Lea and Corporate Defendants: improper delegation and lack of independent analysis. | Proper exercise of independent judgment; no improper delegation. |
| Were new documents timely and fairly considered without due process violation? | Bank: documents timely and relevant; adequate notice given. | Defendants: due process violated by last-minute filings. | Due process satisfied; no reversible error. |
Key Cases Cited
- Bertrand v. Belhomme, 892 So.2d 1150 (Fla. 3d DCA 2005) (fraud on the court sanction requires narrow abuse review)
- Metro. Dade Cnty. v. Martinsen, 736 So.2d 794 (Fla. 3d DCA 1999) (sanctions for misconduct; protect integrity of litigation)
- Williams v. Miami-Dade Cnty. Pub. Health Trust, 17 So.3d 859 (Fla. 3d DCA 2009) (narrowed abuse of discretion standard for striking pleadings)
- Cox v. Burke, 706 So.2d 43 (Fla. 5th DCA 1998) (perjury as egregious misconduct affecting court proceedings)
- Papadopoulos v. Cruise Ventures Three Corp., 974 So.2d 418 (Fla. 3d DCA 2007) (misrepresentations go to heart of claims; fraud on court context)
- Martinsen, 736 So.2d 794 (Fla. 3d DCA 1999) (ongoing misrepresentations undermine claim integrity)
- O'Vahey v. Miller, 644 So.2d 550 (Fla. 3d DCA 1994) (serious misconduct; dismissal appropriate)
- Beharry v. Drake, 52 So.3d 790 (Fla. 5th DCA 2010) (distinguishing Berg-Perlow on adopted orders)
- Berg-Perlow, 875 So.2d 388 (Fla. 2004) (appearance of impropriety when adoptive orders undermine judge's independence)
- Perlow v. Berg-Perlow, 875 So.2d 388 (Fla. 2004) (standards for adopting proposed orders and fairness concerns)