Cherubino v. Fenstersheib and Fox, P.A., 925 So.2d 1066 (Fla. App. 2006)

FL: Underlying Automobile Action in Tort

Student Contributor: David Drescher

FACTS: Anthony Cherubino was involved in a car accident and he and his wife Lucy Cherubino hired Fenstersheib and Fox to represent them. After filing suit, the trial court dismissed the action for failure to comply with discovery orders. Following this dismissal, Fenstersheib and Fox refiled the claim and subsequently withdrew as counsel to the Cherubinos. Upon refilling, that claim was dismissed as well. The Cherubinos then filed the current claim for legal malpractice alleging that malpractice was committed by not complying with the discovery orders of the court. This failure, they claim, caused the Cherubinos to be unable to recover for the automobile accident. Fenstersheib and Fox countered with a motion to dismiss alleging the Cherubinos were committing a fraud on the court. They further cited several inconsistencies in the Cherubinos statements about the accident. The court granted the defendant’s motion, with prejudice, and found that the “case is permeated by fraud committed by Plaintiffs Anthony Cherubino and Lucy Cherubino who, the record reflects, have committed a pattern of deceit calculated to interfere with the judicial system’s ability to fairly adjudicate this matter”.

ISSUE: Did the Cherubinos commit a fraud on the court?

RULING: No, committing a fraud on the court requires a very high standard to be met-clear and convincing evidence. The court held:

“the evidence available to the trial court simply did not satisfy the stringent standards justifying dismissal for fraud on the court. First, the majority of the inconsistencies highlighted by Fenstersheib and Fox occurred in the underlying case, not in the legal malpractice action, so they can hardly be said to constitute fraud on the court in the legal malpractice action. Second, the few inconsistencies which did occur in the legal malpractice action do not convince us that the Cherubinos "…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."   

A few inconsistencies, which the Cherubinos contend were not knowing deceptions, simply do not demonstrate the blatant or extreme conduct necessary to prove fraud on the court.

LESSON: Absent clear and convincing evidence, the burden to  establish a fraud on the court has not been met.