IN THE CIRCUIT COURT OF FLORIDA FOURTH JUDICIAL CIRCUIT IN AND FOR CLAY COUNTY, FLORIDA

Transcription

1 Filing # Electronically Filed 10/07/ :19:13 PM IN THE CIRCUIT COURT OF FLORIDA FOURTH JUDICIAL CIRCUIT IN AND FOR CLAY COUNTY, FLORIDA SANDRA DUNNAVANT, ) Plaintiff, ) ) vs. ) Case No CA ) CLAY FAMILY POLICY FORUM, INC., ) Defendant. ) ) DEFENDANT S MOTION FOR SANCTIONS OF DISMISSAL WITH PREJUDICE AND AWARD OF ATTORNEY S FEES AND COSTS AGAINST PLAINTIFF AND HER COUNSEL FOR FRAUD ON THE COURT Pursuant to the Court s inherent authority to sanction party and attorney bad faith litigation conduct, Defendant, CLAY FAMILY POLICY FORUM, INC. ( Clay Family ), moves for an order imposing the sanctions of dismissal with prejudice and an award of attorney s fees and costs against Plaintiff, SANDRA DUNNAVANT ( Dunnavant ), and her counsel, for perpetrating a fraud on the Court. Clay Family states as follows in support of this motion: Factual Grounds for Sanctions for Fraud on the Court 1. Clay Family filed Defendant s Counterclaim on October 3, Also on October 3, 2014, Clay family took the deposition of Dunnavant. This motion is based in substantial part on facts alleged in the Counterclaim, many of which were confirmed by Dunnavant at her deposition Dunnavant is a candidate for the Clay County School Board District 5 seat, and is slated for a runoff election against opponent Ashley Gilhousen on November 4, A transcript of Dunnavant s deposition testimony will be presented at the evidentiary hearing on this motion.

2 3. Clay Family is a Florida non-profit organization, the primary purpose of which is to encourage a pro-family culture in Clay County. One of Clay Family s primary activities is surveying candidates for elected office regarding a variety of topics, and disseminating candidate responses to the public along with voter guides based on the responses. 4. In May 2014, Clay Family sent its 2014 School Board Candidate Survey (the Survey ) to Dunnavant and all other Clay County School Board candidates. 5. Dunnavant returned her Survey to Clay Family at the end of May, which included responses to all but four questions in the Survey. 6. On June 10, 2014, Clay Family s President, Mary Lib Stevenson, notified Dunnavant by that her Survey responses were incomplete, and requested a meeting to complete the Survey. 7. On June 13, 2014 Dunnavant met with Stevenson and completed two of the incomplete questions on the original Survey. 8. On June 26, 2014 Stevenson requested by a follow-up meeting for Dunnavant to initial pages 2 through 5 of the original Survey, which Stevenson had asked Dunnavant to do at their first meeting, but Dunnavant failed to do. Dunnavant apologized to Stevenson for the inconvenience and agreed to meet at Stevenson s home to initial the pages. 9. On July 2, 2014, Dunnavant went to Stevenson's home, where she initialed pages 2 through 5 of the original Survey. 10. Clay Family posted copies of all candidates original Surveys on its website, and published a Voter Guide based on the responses in the Surveys. A copy of the original and authentic Dunnavant Survey published by Clay Family is attached to Clay Family s Counterclaim as Exhibit A. 2

3 11. Dunnavant commenced this action on September 22, 2014, in which she asserts claims for defamation, intentional infliction of emotional distress and malicious infliction of emotional distress. At the base of Dunnavant s Complaint is her allegation that Clay Family altered Dunnavant s Survey responses. Dunnavant claims that she made a copy of her completed Survey, prior to mailing it to Clay Family, and she claims that copy is attached to her Complaint as Exhibit 1. The document Dunnavant claims to be that copy is also attached to the Counterclaim as Exhibit B. 12. Dunnavant s lawsuit is based on a complete lie, fabrication, and fraud. The supposed copy which Dunnavant claims to have made of her Survey before she mailed it to Clay Family is not at all authentic. Indeed, it is an outright forgery, which Dunnavant manufactured with the express purpose of defaming Clay Family and its officers and bringing disrepute to them and their work. Dunnavant also sought to gain an advantage over her election opponent, Gilhousen, by attempting to link Gilhousen to Clay Family s falsely alleged wrongdoing. 13. There are numerous objective indicators which leave no doubt that Dunnavant s purportedly authentic copy is, in fact, a fraud, and that Dunnavant knows as much. 14. First, Dunnavant admits that when she filled out the original Survey, she left blank and unanswered the question on American Exceptionalism (Survey page 2, Issue 8 under EDUCATION STANDARDS ). (Compl ) After Clay Family received her original, it noticed the missing response, and Clay Family s President met with Dunnavant to give her a chance to complete the question before her Survey was published. (Id.) Dunnavant further admits that this meeting took place on June 13, 2014, approximately two weeks after Dunnavant filled out the original Survey and mailed it to Clay Family. (Id.) And Dunnavant admits that it was 3

4 only at this meeting that she filled in a response to the question on American Exceptionalism, on the Survey which Clay Family s President brought to the meeting. (Id). Inexplicably, the purportedly authentic copy on which Dunnavant premises her lawsuit, and which Dunnavant claims to have made at least two weeks before the June 13, 2014 meeting, contains her response to the question on American Exceptionalism. (Compl. Ex. 1 at 2, Issue 8 under EDUCATION STANDARDS ). This is a logically impossible feat. Since Dunnavant left this question blank and unanswered on the original Survey when she mailed it to Clay Family, then any authentic copy that she could have made of that Survey prior to mailing it would necessarily have to contain a blank and unanswered space next to this question. 2 Dunnavant s purported copy, is not copy at all, but a forgery created by Dunnavant. 15. Second, prior to filing her lawsuit, Dunnavant publicized her accusations to news media outlets, some of which picked up and reported on her claims. To convince a Fox 30 News reporter, Catherine Varnum, that her story was believable, Dunnavant provided the reporter with a Survey copy that Dunnavant claimed was a copy she made of her completed survey prior to mailing it to Clay Family. However, the purportedly authentic copy of the Survey which Dunnavant provided to Fox 30 News (attached to the Counterclaim as Exhibit C) is materially different from the purportedly authentic copy of the Survey Dunnavant attached to her Complaint in this litigation. For example: a) The headings FISCAL RESPONSIBILITY and ABORTION on page 4 appear in bold font on the Fox 30 version, but regular font on the lawsuit version; 2 At an attorney-only conference immediately following Dunnavant s deposition, Dunnavant s counsel disclosed to counsel for Clay Family that Dunnavant s counsel were aware of this dispositive discrepancy, and of Dunnavant s complete inability to explain it, prior to signing and filing the Complaint alleging the copy attached to the Complaint as Exhibit 1 to be an authentic copy made before Dunnavant answered the American Exceptionalism question. Their complicity in Dunnavant s fraud constitutes bad faith litigation conduct worthy of sanctions. 4

5 b) The phrases efficient operation and general improvement in Issue 2 under FISCAL RESPONSIBILITY on page 4 appear in bold font in the Fox 30 version, but regular font on the lawsuit version; c) The lawsuit version contains misspelled words which do not appear in the Fox 30 version, such as, for example: i) itfor (page 4, FISCAL RESPONSIBILITY, Issue 2); and ii) 2na trimester (page 4, ABORTION, Question 3(D)). d) The lawsuit version contains different text style and font in certain places as compared to the Fox 30 version, such as, for example: i) The number 2 under ABORTION on page 4 is in italics on the lawsuit version, but regular font on the Fox 30 version; ii) The letters A, B, C, D and E under ABORTION on page 4 on the lawsuit version are in a different font from those on the Fox 30 version; and iii) The ordinals 1st and 2nd appear in superscript font whenever used under ABORTION on page 4 of the Fox 30 version (e.g., 1 st and 2 nd ), but appear in regular, in-line font on the lawsuit version. e) There are also various other formatting differences between the lawsuit version and the Fox 30 version, such as, for example: i) There are three shaded boxes under ABORTION on page 4 of the Fox 30 version, but not in the lawsuit version; and 5

6 ii) On page 5 of the Fox 30 version, the table lines appear deformed in several places, and the lines cross over the text, but this phenomenon does not occur on the lawsuit version. f) Finally, questions 2(A) and 3(A) under ABORTION on page 4 of the lawsuit version are answered with x marks, while the same questions are answered with check marks ( ) on the Fox 30 version. 16. The Fox 30 News copy and Dunnavant s lawsuit copy of the Survey cannot both be authentic, as Dunnavant has contended in each case. In fact, they are both forgeries, and Dunnavant knows this fact. 17. The Fox 30 version and Dunnavant s lawsuit version of the Survey cannot both be authentic, as Dunnavant has contended in each case. In fact, they are both forgeries, and Dunnavant knows this fact. 18. Third, Clay Family has in its possession the authentic, original Survey which it received from Dunnavant. Even a cursory examination of this document reveals to the untrained eye that Dunnavant s initials appear in original ink (not photocopy) on each page of the Survey, and that those initials are identical in size and position to the initials appearing on Dunnavant s purported copy, and thus could not have been forged by Clay Family. 19. Fourth, the authentic original Survey which Clay Family received from Dunnavant and published on its website has the same type face, font, and format, and the printed portion is identical to, every other Survey received from other school board candidates and published on Clay Family s website. The published Surveys, including Dunnavant s original, are free from the spelling errors and other defects present only in the forged version advanced by Dunnavant in this lawsuit. 6

7 20. The Survey version advanced by Dunnavant in this lawsuit cannot possibly be an authentic copy of the Survey she mailed to Clay Family. No authentic Clay Family Survey exists that contains the spelling errors, formatting differences, and other defects found in Dunnavant s lawsuit version. 21. Rather than being an authentic copy of the Survey she completed and mailed to Clay Family, the Survey on which Dunnavant premises this entire lawsuit is an outright forgery, falsified by Dunnavant for the immediate, express, and malicious purposes of maligning Clay Family and its work, and gaining an advantage over her opponent in the upcoming election. Legal Grounds for Sanctions of Dismissal with Prejudice and Award of Attorney s Fees Against Plaintiff and Her Counsel 22. Dunnavant has exposed her own fraud, not only by claiming that two, materially different copies were both authentic copies of her Survey, but also by her deposition testimony on critical foundational facts. Fraud upon the court is an egregious offense against the integrity of the judicial system and is more than a simple assertion of facts in a pleading which might later fail for lack of proof. Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 252 (Fla. 1st DCA 2012). 23. The First District has provided the standard for dismissal for fraud on the court: A trial judge has the inherent authority to dismiss actions based on fraud and collusion. The requisite fraud on the court occurs when 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. Hutchinson v. Plantation Bay Apartments, LLC, 931 So. 2d 957, (Fla. 1st DCA 2006) (internal quotations and citation omitted). And the Fifth District, in a case quoted by the Hutchinson court above, also explained: 7

8 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.... This is an area where the trial court is and should be vested with discretion to fashion the apt remedy. Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998). 24. Under the above standard, [d]ismissal is an available remedy for knowingly submitting forged or altered documents with the intent to deceive the court. Andrews v. Palmas De Majorca Condo., 898 So. 2d 1066, 1069 (Fla. 5th DCA 2005) (emphasis added). [W]here a party lies about matters pertinent to his own claim, or a portion of it, and perpetrates a fraud that permeates the entire proceeding, dismissal of the whole case is proper. Cox, 706 So. 2d at Dunnavant s lawsuit is based on her claim that Clay Family altered her Survey responses. But Dunnavant s only evidence to support her claim consists of her own forgeries submitted to the news media and, more disturbingly, to this Court. Thus, her fraud permeates the entire proceeding. Under these circumstances, dismissal with prejudice is not only appropriate, but required to protect the integrity of the civil litigation process and to discourage such conduct in the strongest possible way. Id.; see also Savino v. Florida Drive In Theatre Mgmt., 697 So. 2d 1011, 1012 (Fla. 4th DCA 1997) ( We believe that the trial court has the right and obligation to deter fraudulent claims from proceeding in court. ). 26. The Court s inherent authority to sanction a party for misconduct includes not only dismissal with prejudice, but also the award of attorney s fees. See, e.g., Sky Dev., Inc. v. Vistaview Dev., Inc., 41 So. 3d 918, 920 (Fla. 3d DCA 2010) (holding no abuse of discretion to award attorney s fees in addition to dismissal with prejudice); Storm v. Allied Universal Corp., 842 So. 2d 245, 246 (Fla. 3d DCA 2003) (affirming assessment of attorney's fees against 8

9 plaintiff for efforts required of defendants to reveal multiple acts of fraud, perjury, and deception); see also Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998) (upholding award of attorney s fees based on inequitable conduct doctrine). This authority also includes the power to impose Clay Family s attorney s fees on Dunnavant s counsel for their bad faith complicity in Dunnavant s fraud (see n.2, supra). See Moakley v. Smallwood, 826 So. 2d 221, 226 (Fla. 2002). WHEREFORE, Clay Family requests an order imposing sanctions on Dunnavant and her counsel, including dismissal of her Complaint with prejudice and an award of attorney s fees and costs in an amount to be established by subsequent motion and hearing, together with such other and further relief as the Court deems just and proper. Respectfully Submitted, /s/ Roger K. Gannam Horatio G. Mihet Florida Bar No hmihet@lc.org court@lc.org Roger K. Gannam Florida Bar No rgannam@lc.org LIBERTY COUNSEL P.O. BOX Orlando, FL Telephone: (800) Telefacsimile: (407) Attorneys for Defendant 9

10 CERTIFICATE OF SERVICE I CERTIFY that a copy of this document has been filed electronically through the Florida Courts efiling Portal this October 7, 2014, and that the following will receive electronic service of the document: Thomas H. Hatcher Gary L. Luke Luke Law, LLC 1405 Kingsley Ave. Orange Park, FL thaileyhatcher@lukelaw.com garylluke@lukelaw.com serviceofpapers@lukelaw.com Attorneys for Plaintiff /s/ Roger K. Gannam Roger K. Gannam Attorney for Defendant 10