01-2961 PICHS V. MURTON

State: Florida

Court: Florida Third District Court

Docket No: 01-2961 PICHS V. MURTON

Case Date: 12/18/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002

CONCEPCION PICHS, and JULIO PICHS, her husband, ** Appellants, ** vs. ** MURTON ROOFING INC., and CARLOS ALBERTO-RODRIGUEZ, jointly and severally, Appellees. ** ** **

**

CASE NO. 3D01-2961 LOWER TRIBUNAL NO. 00-10161

Opinion filed December 18, 2002. An Appeal from the Circuit Court for Miami-Dade County, Barbara S. Levenson, Judge. Quinn Serralta & Quinn; Philip Parrish, for appellants. Richard appellees. A. Sherman; J. Robert Miertschin, Jr., for

Before LEVY, SHEVIN and RAMIREZ, JJ. SHEVIN, Judge.

Concepcion and Julio Pichs appeal an order dismissing their complaint based on fraud. We reverse.

We are mindful that "a trial court has the inherent authority to dismiss a law action when fraud has been perpetrated on the court. . . . [However,] this power should be cautiously and sparingly exercised and only upon a clear showing of fraud, pretense, collusion, or similar wrongdoing." Simmons v. Henderson, 745 So. 2d 1031, 1032 (Fla. 2d DCA 1999)(emphasis added), review denied, 767 So. 2d 457 (Fla. 2000). 2001). See Armakan v. McLean, 800 So. 2d 314 (Fla. 3d DCA The record here demonstrates that dismissal is not The discrepancies defendants rely

appropriate in this case.

on do not justify dismissal, see Armakan, and we hold that any misstatements by Mrs. Pichs, given the circumstances in this case, do not result in a fraud being perpetrated on the court. Simmons. We, therefore, reverse the dismissal order and

remand the cause to proceed to trial. Reversed and remanded.

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