author: CIKLIN, J. GERBER, J.,

text:
    STATE of Florida, Appellant, v. Beth FLANSBAUM-TALABISCO, Appellee.
    No. 4D12-946.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Rehearing Denied Sept. 18, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellant.
    Larry S. Davis of Larry S. Davis, P.A., Hollywood, and Richard L. Rosenbaum of Arnstein & Lehr LLP, Fort Lauderdale, for appellee.
   CIKLIN, J.

The state appeals the trial court’s dismissal of all charges against the defendant, Beth Flansbaum-Talabisco (hereinafter “Talabisco”). We find that the undisputed facts upon which the state will rely in an attempt to prove Talabisco guilty establish a prima facie ease and thus dismissal was improper. Likewise, the determination of intent is a question for the trier of fact that is generally not appropriate for resolution on a motion to dismiss. We therefore reverse the order of dismissal and remand with instructions that the charges be reinstated. We caution that our decision should not be construed as a comment on whether Talabisco is guilty or not guilty of the crimes charged by the state attorney. We also take this opportunity to construe and discuss Florida’s anti-corruption statutes.

In 2011, the state charged Talabisco, the mayor of Tamarac, Florida, with four counts: unlawful compensation (count I), bribery (count II), official misconduct (count III), and conspiracy to commit unlawful compensation (count IV). The state alleged that Talabisco received financial assistance in her mayoral campaign from two developers in exchange for her favorable vote to approve their highly controversial development project after the election. The development encompassed the conversion of a golf course into a residential community and drew vocal advocates both for and against the plan. Talabisco responded by filing a sworn motion to dismiss, pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), arguing that the undisputed facts did not establish a prima facie case of guilt.

The Motion to Dismiss

In her sworn motion, Talabisco asserted the undisputed facts to be as follows. In 2006, Talabisco was running for the office of mayor of the City of Tamarac, with the election being held on March 14, 2006. Bruce Chait and his son, Shawn Chait, owned a company, Prestige Homes of Ta-marac, Inc., which sought government approval to build a residential housing development (the “project”) within the City of Tamarac. Accordingly, the project required the approval of the Tamarac City Commission. Prior to the election and before providing assistance to the Talabis-co campaign, the Chaits believed that Tala-bisco was in favor of the project and would vote in favor of it. Bruce Chait knew Talabisco was “on board” for the project and would support it when it came before the commission. Shawn Chait recognized that Talabisco’s support for the project was clear from the beginning of his involvement in her campaign but both Chaits wanted to be part of the effort to ensure Talabisco’s election and show support.

According to the motion to dismiss, in February of 2006, Shawn Chait met with lawyer/lobbyist Alex Heckler, political operative Russell Oster, and another individual to discuss ways in which Shawn Chait could get involved in the Tamarac mayoral race to influence the outcome. Heckler specialized in establishing electioneering communications organizations (“ECOs”). Oster suggested conducting a poll, which Shawn Chait agreed to pay for, to assist in determining if Talabisco was doing well in the campaign and “get the lay of the land.” The poll would determine what campaign strategies would be necessary to support Talabisco’s election. Oster conducted the poll and the results showed that Talabisco was tied with her opponents.

As a result of the poll’s findings, the Chaits decided to create and fund an ECO to campaign for Talabisco. Heckler received a phone call from a friend of Tala-bisco’s instructing him to create the ECO and alerting Heckler that he would receive a phone call from Shawn Chait. Heckler created the ECO, named “Tamarac Residents for Good Government,” and the Chaits financially contributed to it via two “conduit entities,” which the Chaits later reimbursed, to create political advertisements including campaign flyers.

Talabisco claimed that her vote for the project was never contingent upon the Chaits’ financial support of her mayoral campaign. Talabisco further claimed that she “received no payment, financial benefit, or anything of value from the Chaits.” Talabisco asserted that only her campaign and the ECO received benefits.

In her motion to dismiss, Talabisco argued:

The legal and factual linchpin underlying the State’s case is that the Defendant obtained an illegal benefit from the Chaits. Simply put, without proof of an illegal benefit, the State’s case fails as a matter of law. Even viewing the evidence in the light most favorable to the State, the Defendant received no benefit or any other thing of value as required by law.

The State’s Traverse and Response

The state filed a traverse and response to Talabisco’s motion to dismiss, arguing both that material facts were in dispute and that the facts established a prima facie case for each of the four counts. The state contended that whether Talabisco’s vote for the Chaits’ project was in exchange for financial support for her campaign was a question of intent, which should be decided by a jury. The state urged that Talabisco received the benefits of a campaign poll (valued at more than $7,000) and campaign mailers (worth over $19,000) which were primarily negative attack ads coordinated against Talabisco’s opponents.

The state provided its own additional facts. According to the state, Talabisco’s support for the project was not a foregone conclusion, as she had previously met with and ■ convinced a Tamarac resident who opposed the project that Talabisco opposed the project as well. Because the resident believed Talabisco’s opposition to the project to be genuine, the resident assembled a group of volunteers to hand out 1500 flyers (that the Talabisco campaign supplied) which claimed Talabisco would not “bow to developers” as mayor. The flyers were distributed within the project’s neighboring Mainlands community and contained language which assured Mainlands’ residents that Talabisco would stand up against Prestige Homes. The state further alleged that at some point Talabis-co was worried about the perception created by the Chaits’ support for her campaign and she therefore returned contributions that had been made in the Chaits’ names. The flyer distributed within the Mainlands community extolled that Talabisco was the “FIRST AND ONLY Mayoral Candidate to offer to refund campaign contributions to the Developer! [sic]”

Talabisco was elected to the office of mayor of Tamarac on March 14, 2006. At her first meeting as mayor — on March 22, 2006 — the Tamarac City Commission was scheduled to take its first vote on the Chaits’ project. Talabisco wanted to delay the vote but Bruce Chait told her not to delay it. On the day of the vote, Talabis-co’s support for the project appeared to be wavering. During a break in the meeting, Bruce Chait sent Talabisco’s former campaign manager to speak to Talabisco to make sure she voted for the project. The vote on the project was not delayed and Talabisco voted to approve the development.

The Order of Dismissal

After holding a hearing on the motion, the trial court entered an order dismissing all four charges against Talabisco. The court held that “the undisputed facts do not establish a prima facie case of guilt against the Defendant as to the crimes charged in the Information.” The court further held that the facts did not demonstrate that Talabisco received any “pecuniary or other benefit not authorized by law.”

The trial court found that it was undisputed that the Chaits wanted to support candidates for office in Tamarac who would vote for the project and that Tala-bisco supported the project before she met the Chaits. The trial court noted, “The evidence that at times her support wavered, is speculative and insufficient to show that she changed her position, and voted for the project because her vote had been purchased by the Chaits.”

The court concluded that “[t]here is no evidence that Beth Flansbaum-Talabisco benefitted [sic] personally in any manner” and noted that donors often seek out candidates for office who agree with them on policy issues. The court held, “This does not equate to ... candidate[s] selling their vote, and they are not prosecuted for unlawful compensation, bribery, or official misconduct, because they maintain their position and vote accordingly.”

The Charges

The first count against Talabisco was for unlawful compensation or reward for official behavior, which is defined under section 838.016(1), Florida Statutes (2010):

It is unlawful for any person corruptly to give, offer, or promise to any public servant,- or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or other benefit not authorized by law, for the past, present, or future performance, nonperformance, or violation of any act or omission which the person believes to have been, or the public servant represents as having been, either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty. Nothing herein shall be construed to preclude a public servant from accepting rewards for services performed in apprehending any criminal.

§ 838.016(1), Fla. Stat. (2010).

Section 838.015(1), Florida Statutes (2010), contains the definition for bribery, the second count against Talabisco:

“Bribery” means corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept for himself or herself or another, any pecuniary or other benefit not authorized by law with an intent or purpose to influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of a public servant, in violation of a public duty, or in performance of a public duty.

§ 838.015(1), Fla. Stat. (2010). The state’s information alleged that Talabisco committed unlawful compensation and bribery by corruptly requesting, soliciting, accepting, or agreeing to accept money from the Chaits to pay for a poll and the ECO in exchange for Talabisco’s voting favorably for the Chaits’ project.

Finally, count three against Talabisco, official misconduct, is defined as:

(1) It is unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to:
(c) Obstruct, delay, or prevent the communication of information relating to the commission of a felony that directly involves or affects the public agency or public entity served by the public servant.

§ 838.022, Fla. Stat. (2010). The state’s information accused Talabisco of committing official misconduct by failing to disclose that she had been financially aided by the Chaits during her campaign in exchange for her favorable vote for their project, constituting the felonies of bribery and unlawful compensation.

Analysis

Motion to Dismiss

“This court reviews de novo an order on a motion to dismiss.” Knipp v. State, 67 So.3d 376, 378 (Fla. 4th DCA 2011) (citation omitted). Florida Rule of Criminal Procedure 3.190(c)(4) provides that a defendant may advance a motion to dismiss the charges when “[tjhere are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” Fla. R. Crim. P. 3.190(c)(4). The rule then permits the state to traverse or demur the factual allegations contained in the motion to dismiss. Fla. R. Crim. P. 3.190(d). The rule specifically mandates that “[a] motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss.” Id. Thus, the defendant has the initial burden to demon-strate in the motion to dismiss that the undisputed facts do not establish a prima facie case of guilt; the burden then shifts to the state to demonstrate either that material facts are actually in dispute or that the undisputed facts amount to a pri-ma facie case of guilt. See State v. Parrish, 567 So.2d 461, 464 (Fla. 1st DCA 1990) (“The burden of going forward with a motion to dismiss rests upon the accused, who must allege under oath that the material facts are undisputed, describe the material undisputed facts, and demonstrate that the undisputed facts fail to establish a prima facie case, or that the facts establish a valid defense.” (citations omitted)).

“The function of a ‘(c)(4)’ motion to dismiss is to ascertain whether or not the facts which the State relies upon to constitute the crime charged, and on which it will offer evidence to prove it, do, as a matter of law, establish a prima facie case of guilt of the accused.” State v. Upton, 892 So.2d 1013, 1015 (Fla. 5th DCA 1981) (citation omitted). “The purpose of such a motion is to test the legal sufficiency of the underlying case, i.e. whether there is a dispute of material fact (not just a dispute of unsupported conclusory allegations) .... ” State v. Nunez, 881 So.2d 658, 660 (Fla. 3d DCA 2004) (citations omitted); see also State v. A.R.R., 113 So.3d 942, 944 (Fla. 5th DCA 2013) (“Motions to dismiss criminal charges are treated like summary judgment motions in civil cases, the purpose of which is to test the legal sufficiency of the underlying case.” (citations omitted)).

It is well-established that “[s]o long as the state shows the barest prima facie case, it should not be prevented from prosecuting.” State v. Eugui, 60 So.3d 1185, 1186 (Fla. 4th DCA 2011) (citation and quotation marks omitted). “To survive a motion to dismiss, the state need not produce evidence sufficient to sustain a conviction.” Id. at 1185 (citation and quotation marks omitted). Further, “[a] motion to dismiss should rarely be granted, and granted only when the facts and inferences arising there from, taken in the light most favorable to the State, do not establish a prima facie case.” State v. Gensler, 929 So.2d 27, 29 (Fla. 3d DCA 2006) (citations omitted); see also State v. Santiago, 938 So.2d 603, 605 (Fla. 4th DCA 2006) (noting that in reviewing a motion to dismiss criminal charges “the court must draw all inferences in favor of the state and against the defendant” (emphasis added) (citation and quotation marks omitted)).

The state’s traverse attempted to dispute multiple facts Talabisco alleged in her motion to dismiss, although most of the state’s traverse merely addressed the wording of Talabisco’s asserted facts and not a substantive disagreement over material allegations. The state, however, squarely disputed material facts alleged by Talabisco related to the receipt of a “benefit” under chapter 838 and whether Tala-bisco accepted the benefit in exchange for her performance as a public servant.

“Benefit”

Talabisco argues on appeal that she never received a “benefit” as required for each of the charged crimes. She maintains that the poll and the contributions to her election efforts were not benefits to her personally. We find, however, that the definition of “benefit” under chapter 838 is quite broad:

“Benefit” means gain or advantage, or anything regarded by the person to be benefited as a gain or advantage, including the doing of an act beneficial to any person in whose welfare he or she is interested, including any commission, gift, gratuity, property, commercial interest, or any other thing of economic value not authorized by law.

§ 838.014(1), Fla. Stat. (2010). Defining “benefit” as simply “gain” or “advantage” plainly encompasses much more than the narrow economic benefit flowing directly into the recipient’s hands which Talabisco argues is the only type of “benefit” contemplated under these statutes.

In Bauer v. State, this court held that “[a] void anee of punishment is a benefit for purposes of official misconduct.” 609 So.2d 608, 611 (Fla. 4th DCA 1992) (citing Barr v. State, 507 So.2d 175, 177 (Fla. 3d DCA 1987)). The defendant, the cash management coordinator for the City of West Palm Beach, had improperly invested money belonging to the city which resulted in a loss of approximately $1 million. Bauer lied at multiple points to conceal the losses to achieve a “benefit” which this court found actionable for purposes of the official misconduct statute. Id. at 609. Bauer clearly did not financially gain from his unauthorized transactions and yet this court concluded that he benefited in his deliberate and prolonged efforts to cover up his misconduct.

Thus, contrary to Talabisco’s argument, the definition of “benefit” in chapter 838 is broad enough to include receiving assistance in her election effort. The poll conducted and mailers created and distributed were to Talabisco’s “advantage” and she cannot reasonably contend that she did not “gain” from them.

“Not Authorized By Law”

Talabisco also argues that the ECO contributions were not benefits which were “not authorized by law” under the anti-corruption statutes. Reviewing the legislative history of these statutes, we are not persuaded by this argument.

In 1974, the Florida Legislature enacted section 838.015, which defined the crime of bribery:

“Bribery” means corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept for himself or another, any pecuniary or other benefit with an intent or purpose to influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of a public servant, in violation of a public duty, or in performance of a public duty.

§ 838.015(1), Fla. Stat. (1974); see also ch. 74-383, § 60, at 1253, Laws of Fla. The crime of bribery was originally a third-degree felony. Id. With the exception of a revision to conform with changes in the felony classifications a year later, ch. 75-298, § 35, at 1095, Laws of Fla., and a revision in 1997 to use gender-neutral wording, ch. 97-102, § 1314, at 1466-67, Laws of Fla., the definition of bribery in Florida remained unchanged for nearly thirty years.

In 2003, however, the Legislature made a significant change to the bribery statute: It upgraded bribery from a third-degree felony to a second-degree felony. Ch. 2003-158, § 3, at 1027-28, Laws of Fla. Under House Bill 847, entitled “Citizens’ Right to Honest Government,” the Legislature merged the definitions of “benefit” and “pecuniary benefit,” which had previously been separately defined. Further, the bill created new anti-corruption laws and moved others into chapter 838. The bill also repealed the offenses of commercial bribery receiving and commercial bribery, both of which had already been declared unconstitutional by the Florida Supreme Court.

Nowhere in HB 847 was there a proposition to make any other fundamental alterations to Florida’s almost thirty-year-old definition of bribery. By all objective indicators, the purpose of HB 847, evinced by its very title, “Citizens’ Right to Honest Government,” was to strengthen and reiterate Florida’s commitment to combat public corruption-not weaken it.

Nevertheless, at some point during the legislative process, four words were added to the bribery statute, which now reads (new language in italics):

“Bribery” means corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept for himself or herself or another, any pecuniary or other benefit not authorized by law with an intent or purpose to influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of a public servant, in violation of a public duty, or in performance of a public duty.

§ 888.015(1), Fla. Stat. (2003) (emphasis added). Talabisco essentially argues that the Legislature’s addition of those four words — “not authorized by law” — was intended to create a fundamental and dramatic change in Florida’s statutory definition of bribery.

A primary rule of statutory construction advises that “[w]hen the Legislature makes a substantial and material change in the language of a statute, it is presumed to have intended some specific objective or alteration of law, unless a contrary indication is clear.” Punsky v. Clay Cnty. Bd. of Cnty. Com’rs, 60 So.3d 1088, 1092 (Fla. 1st DCA 2011) (citation and quotation marks omitted). We believe this rule is not applicable to the instant controversy, however, because the addition of the words “not authorized by law” was not meant to constitute a substantial and material change to the bribery statute. And its addition has a simple explanation: conformity with other existing language in chapter 838.

In 1974, when the Legislature enacted the modern offense of bribery, it also enacted the separate but related crime of “Unlawful compensation or reward for past official behavior,” defined then as:

It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept any pecuniary or other benefit not authorized by law, for the past performance of any act or omission which the person believes to have been, or the public servant represents as having been, either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty. Nothing herein shall be construed to preclude a public servant from accepting rewards for services performed in apprehending any criminal.

§ 838.016(1), Fla. Stat. (1974) (emphasis added); see also ch. 74-383, § 60, at 1253-54, Laws of Fla.

Save for a few minor changes, this definition has been maintained since its enactment. Thus, the crime of unlawful compensation has always included the words, “not authorized by law,” now found in the bribery statute. It appears possible that in 2003, when Florida’s anti-corruption statutes were being overhauled and consolidated, the Legislature merely added the “not authorized by law” language to the bribery statute in an effort to create uniformity between the unlawful compensation and bribery statutes.

At no point in the decades since the Legislature codified this definition of unlawful compensation has any Florida court reasoned that financial campaign assistance could not fall under the definition of that crime because campaign contributions are authorized by law. Likewise, since 2003 when the Legislature tweaked the bribery statute and added the “not authorized by law” language, no Florida court has held that campaign contributions could not constitute bribery because they are authorized by law.

It is true that “a basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198-99 (Fla.2007) (citation and quotation marks omitted). However, another important rule of statutory construction necessarily governs here: “ ‘We have long held that the Court should not interpret a statute in a manner resulting in unreasonable, harsh, or absurd consequences.’ ” Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 371 (Fla.2013) (quoting Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1270 (Fla.2008)). In rare circumstances, even the plain meaning of a statute which produces patently absurd results will be avoided. See Maddox v. State, 923 So.2d 442, 448 (Fla.2006) (noting that while the “strict meaning of the words ... employed by the Legislature” may support the lower court’s statutory reading, “such a sterile literal interpretation should not be adhered to when it would lead to absurd results” (citation omitted)). When the application of these two rules is irreconcilable (that is, when an interpretation that does not render any portion of a statute meaningless produces an absurd result), then it must be determined which rule becomes more imperative.

It is not difficult to conceive of scenarios in which behavior that would otherwise be considered bribery would become entirely legal were we to adopt Talabisco’s suggested interpretation of the revised bribery statute. For example, one could sell a piece of real property valued at $500,000 to a politician for a substantial discount, say $100,000, in exchange for a favorable vote on a matter. Because one is authorized to sell a piece of owned real estate for any price at the seller’s discretion, the discounted property is not a “benefit not authorized by law,” and therefore this scenario could never constitute bribery under the proposed reasoning.

As another example, a business owner who seeks a low interest government loan from a highly competitive taxpayer supported program could sell the official with final decision-making authority vast amounts of goods at or below the owner’s cost. Because the business owner is legally authorized to unilaterally establish his own price points, the government official receiving the goods could not be guilty of bribery even if the loan were approved as a result of his receiving the discounted pricing.

Thus, because Talabisco’s statutory interpretation of the bribery statute could lead to absurd results, the need to avoid such results necessarily takes priority over the otherwise important goal of not rendering any portion of the statute meaningless.

Finally, the rule of lenity, which requires courts to interpret statutory ambiguity in favor of a defendant, is also unhelpful here. It is a “canon of last resort,” only to be used “when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.” Kasisehke v. State, 991 So.2d 803, 814 (Fla.2008) (citing and quoting United States v. Shabani, 513 U.S. 10, 17, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994)). This rule need not be applied because the ambiguity in the statute can be resolved by looking to legislative history and other traditional rules of statutory construction.

The Necessary Quid Pro Quo

Having concluded that the poll and flyers constituted an illegal benefit, we address the remaining question: whether Ta-labisco obtained the benefit in exchange for an affirmative public policy vote. This is an issue of intent and therefore most appropriate for the fact-finder to resolve. As we noted in State v. Hart, 677 So.2d 385, 386 (Fla. 4th DCA 1996), “Motive and intent are states of mind usually inferred from the conduct of the parties and the surrounding circumstances; they are questions for the trier of fact that are generally not appropriate for a motion to dismiss.” See also State v. Major, 30 So.3d 608, 610 (Fla. 4th DCA 2010) (“Determining the intent of the defendant should be left to the trier of fact and is therefore not the proper subject of a motion to dismiss.” (citations omitted)).

We are cognizant of the fact that the line between a legitimate and innocent campaign donation and one engineered to bribe a public official can at times be difficult to discern. As the Sixth Circuit recently explained in United States v. Terry, 707 F.3d 607 (6th Cir.2013):

Not every campaign contribution, we recognize, is a bribe in sheep’s clothing. Without anything more, a jury could not reasonably infer that a campaign contribution is a bribe solely because a public official accepts a contribution and later takes an action that benefits a donor.

Id. at 615 (citation omitted).

Therefore, we find wisdom in the federal law requirement that an explicit quid pro quo is necessary for a conviction under corruption-related statutes when a government representative accepts a campaign contribution. As the Fifth Circuit Court of Appeals reasoned in United States v. Dozier, 672 F.2d 531, 537 (5th Cir.1982):

A moment’s reflection should enable one to distinguish, at least in the abstract, a legitimate solicitation from the exaction of a fee for a benefit conferred or an injury withheld. Whether described familiarly as a payoff or with the Latinate precision of quid pro quo, the prohibited exchange is the same: a public official may not demand [or accept] payment as inducement for the promise to perform (or not to perform) an official act.

The Eleventh Circuit further elaborated on this point in United States v. Siegelman, 640 F.3d 1159 (11th Cir.2011):

No generalized expectation of some future favorable action will do. The official must agree to take or forego some specific action in order for the doing of it to be criminal.... In the absence of such an agreement on a specific action, even a close-in-time relationship between the donation and the act will not suffice.

Id. at 1171 (emphasis added).

That said, “there is no requirement that this [quid pro quo ] agreement be memorialized in a writing, or even ... be overheard by a third party.” Id. Although “the agreement must be explicit ... there is no requirement that it be express.” Id. “To hold otherwise ... would allow defendants to escape criminal liability through ‘knowing winks and nods.’ ” Id. (quoting Evans v. United States, 504 U.S. 255, 274, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) (Kennedy, J., concurring)). Further, a jury “is quite capable of deciding the intent with which words were spoken or actions taken as well as the reasonable construction given to them by the official and the payor.” Evans, 504 U.S. at 274, 112 S.Ct. 1881 (Kennedy, J., concurring). Moreover, “[a]s most bribery agreements will be oral and informal, the question is one of inferences taken from what the participants say, mean and do, all matters that juries are fully equipped to assess.” Terry, 707 F.3d at 613. As the Sixth Circuit recently explained in Terry;

That a bribe doubles as a campaign contribution does not by itself insulate it from scrutiny. No doubt, a contribution is more likely to be a duty-free gift than a bribe because a contribution has a legitimate alternative explanation: The donor supports the candidate’s election for all manner of possible reasons. But the prosecution may rebut that alternative explanation, and context may show that an otherwise legitimate contribution is a bribe.

Id. (citation omitted).

Based on the foregoing, we believe the state in the instant case is entitled to the opportunity to explain this context to a jury, so it can determine whether the otherwise legitimate contribution was in fact a bribe, unlawful compensation and official misconduct.

Conclusion

At its core, the issue before us is whether or not, as a matter of law, the state has established a prima facie case. If so, as we have found, the state should not be prevented from exercising its prosecutorial discretion. Accordingly, we reverse the order of dismissal and remand the cause with directions to reinstate the charges against Talabisco.

Reversed and remanded with instructions.

STEVENSON and GERBER, JJ., concur.

GERBER, J., concurs specially with an opinion.

GERBER, J.,

concurring specially.

I concur in Judge Ciklin’s well-reasoned opinion, primarily on the basis of the standard of review applying to a motion to dismiss. See Fla. R.Crim. P. 3.190(d) (“A motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss.”); State v. Eugui, 60 So.3d 1185, 1185-86 (Fla. 4th DCA 2011) (“To survive a motion to dismiss, the state need not produce evidence sufficient to sustain a conviction. So long as the state shows the barest prima facie case, it should not be prevented from prosecuting.”) (internal citation and quotation marks omitted); State v. Santiago, 938 So.2d 603, 605 (Fla. 4th DCA 2006) (“In considering the evidence, the court must draw all inferences in favor of the state and against the defendant.”) (citation and quotation marks omitted).

I write separately, however, to express my concern that this case not be interpreted any more broadly than its facts to allow the state, with impunity, to charge public servants and public officers with corruption-related crimes based on the mere coincidence of accepting campaign contributions and then voting consistently with the positions of those who have provided campaign contributions.

I base my concern on the federal law requirement that an explicit quid pro quo is necessary for a conviction under corruption-related statutes when an official accepts a campaign contribution. As the United States Supreme Court reasoned in McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991):

Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run and financed. Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their ■constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, “under color of official right.” To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation
This is not to say that it is impossible for an elected official to commit extortion in the course of financing an election campaign.... The receipt of [political] contributions is also vulnerable ... as having been taken under color of official right, but only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act. In such situations the official asserts that his official conduct will be controlled by the terms of the promise or undertaking. This is the receipt of money by an elected official under color of official right....

500 U.S. at 272-73, 111 S.Ct. 1807 (emphasis added; internal citation omitted).

Having articulated my concern, I recognize the following points of law. “[M]at-ters of intent are for the jury to consider,” id. at 270, 111 S.Ct. 1807 and a jury “is quite capable of deciding the intent with which words were spoken or actions taken as well as the reasonable construction given to them by the official and the payor.” Evans v. United States, 504 U.S. 255, 274, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) ((Kennedy, J., concurring)).

Nevertheless, I remain concerned that the state has survived this motion to dismiss simply by alleging in paragraph 12 of its traverse that

whether [Talabisco’s] support for the Chaits’ project was contingent upon their support of her is a question of intent. [Talabisco’s] intent is a question of fact for the jury.

But for the fact that we must draw all inferences in favor of the state and against the defendant on this question of intent, I would affirm.

      . Section 106.011(19), Florida Statutes (2012), defined an ECO as:
      [A]ny group, other than a political party, affiliated party committee, political committee, or committee of continuous existence, whose election-related activities are limited to making expenditures for electioneering communications or accepting contributions for the purpose of making electioneering communications and whose activities would not otherwise require the group to register as a political party, political committee, or committee of continuous existence under this chapter.

      . The state charged Talabisco with conspiracy to commit unlawful compensation as well.

      . The state is also permitted to assert additional facts if they would create a material issue preventing the granting of the motion. See State v. Kalogeropolous, 758 So.2d 110, 112 (Fla.2000) (“If the facts in the motion that the State does not specifically deny support the defendant’s position but additional facts exist that would create a material issue preventing the granting of the motion, the State should set forth those additional facts in the traverse just as a non-movant would have to do in a counter-affidavit in order to defeat a motion for summary judgment." (citations omitted)).

      . The Florida Statutes contained a much more complex definition of bribery from 1955 until 1974. See § 838.011, Fla. Stat. (1955).

      . The "Citizens’ Right to Honest Government Act” (House Bill 847) was a comprehensive bill, comprised of fourteen pages and contain-tag ten sections relating to dozens of statutes and subsections. See ch. 2003-158, §§ 1-10, 1026-39, Laws of Fla.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Glenda MARTINEZ, as healthcare surrogate, attorney-in-fact, and wife of J. Alan SMITH, the Ward, Appellant, v. John CRAMER, as emergency temporary guardian of the Ward, Appellee.
    No. 4D13-405.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.

      Robin Bresky of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Ellen S. Morris of Elder Law Associates PA, Boca Raton, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the Appellant’s motion for rehearing, withdraw our opinion dated June 19, 2013, and issue the following in its place:

Under the Florida Guardianship Law, any person who is alleged to be incapacitated is entitled to be represented by counsel in proceedings to determine capacity and to determine whether a guardian should be appointed over his or her person or property. At issue in this case is when a court must appoint counsel for an alleged incapacitated person if a court determines a guardian needs to be appointed on an emergency basis. We hold that counsel must be appointed at the same time the emergency temporary guardian is appointed.

In 2010, guardianship proceedings were instituted for J. Alan Smith after he was injured in an automobile accident. Prior to the accident, Smith had designated Glenda Martinez as his health care surrogate and given her a power of attorney. In April 2010, an order determining incapacity was entered that determined Smith was unable to exercise his right to contract and was unable to manage his property and finances. Smith’s son was appointed as guardian of Smith’s property. However, the court found that there was no incapacity that would warrant a guardian of Smith’s person. John Cramer, a professional guardian, succeeded Smith’s son as guardian of Smith’s property in August 2010.

Smith entered a residential facility in September 2010. Between September 2010 and November 2012, Martinez relocated Smith nine times: eight times to a new facility and once to a private residence. In November 2012, Martinez planned to move Smith again from a facility in Lauderhill to her home. In reaction, Cramer filed an emergency motion with the guardianship court, seeking a temporary injunction to prevent the removal of Smith from the Lauderhill facility. The motion alleged Smith would suffer immediate and irreparable injury because it would disrupt Smith’s medical care and result in excessive moving-related costs. Cramer did not serve the motion on Martinez because he claimed he did not know where she was located. On December 5, 2012, Cramer also filed a renewed petition to determine incapacity and petition to appoint a guardian of Smith’s person. Smith was not appointed counsel when the petition was filed.

The trial court granted the motion for temporary injunction. Martinez moved to dissolve the injunction, and a hearing was held on December 18, 2012. Smith was not represented by counsel at the hearing. Cramer testified that Smith was currently noncommunicative, bedridden, and had recently suffered a leg injury that became infected. Cramer filed the motion for a temporary injunction because Martinez wanted to move Smith to her home, and in Cramer’s opinion, Smith needed to be in a skilled nursing facility with stable placement where the staff could get to know him and Smith could socialize. Cramer also called an administrator from the Lauderhill facility to testify that Smith needed to be in a skilled nursing facility.

At the conclusion of the hearing, instead of deciding to extend or terminate the temporary injunction, the trial court decided to appoint an emergency temporary guardian for Smith’s person. As the trial judge was uncertain whether he could do this without a petition, the judge directed Cramer to file one and stated that the court would grant it based upon the evidence presented at the hearing. Cramer filed a petition for appointment of an emergency temporary guardian, and the trial court granted the petition on December 19, 2012. The trial court did not appoint counsel for Smith until January 2, 2018.

On appeal, Martinez argues, among other grounds for reversal, that the trial court violated Smith’s right to be represented by counsel by entering the order without first appointing counsel for Smith. Martinez relies on section 744.3081(1), Florida Statutes (2012), and especially that statute’s last sentence:

A court, prior to appointment of a guardian but after a petition for determination of incapacity has been filed pursuant to this chapter, may appoint an emergency temporary guardian for the person or property, or both, of an alleged incapacitated person. The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. The subject of the proceeding or any adult interested in the welfare of that person may apply to the court in which the proceeding is pending for the emergency appointment of a temporary guardian. The powers and duties of the emergency temporary guardian must be specifically enumerated by court order. The court shall appoint counsel to represent the alleged incapacitated person during any such summary proceedings, and such appointed counsel may request that the proceeding be recorded and transcribed.

(emphasis added).

In non-emergency situations, a trial court is required to appoint counsel for an alleged incapacitated person when the petition for adjudication of incapacity is filed. § 744.331(2)(b), Fla. Stat. (2012) The trial court must appoint the office of criminal conflict and civil regional counsel or private registry counsel, although the alleged incapacitated person can substitute his or her own counsel. § 744.331(2)(a), Fla. Stat. (2012). Appointed counsel serves until review of the initial guardianship report. § 744.362(2), Fla. Stat. (2012).

We have previously held that failure to appoint an attorney for an alleged incapacitated person in a proceeding to determine incapacity is fundamental error. In re Fey, 624 So.2d 770, 772 (Fla. 4th DCA 1993). In Fey, the ward was hospitalized and suffered physical and mental degradation, so she was released to a nursing home. When the appellant, the ward’s stepson, insisted on moving the ward to Georgia, the nursing home’s social services director urged a third party to file a petition for determination of incapacity and for appointment of a guardian. A lawyer filed a motion to enjoin the ward’s removal from the nursing home on the ward’s behalf, but the lawyer was not hired by the ward or appointed by the court. The trial court entered an order determining the ward to be incapacitated and appointing the third party as guardian of the ward’s person. Id. at 771. The stepson appealed, arguing the trial court’s failure to appoint independent counsel constituted fundamental error. This court noted that section 744.331(2)(a) requires a trial court to appoint counsel for a ward when a petition to determine incapacity is filed. Although the trial court had appointed an attorney at the final hearing, we held that was untimely, and that the failure to appoint counsel at the beginning of the process was one of fundamental proportions. Id. at 772.

Here, the trial court erred twice: once when it failed to appoint counsel for Smith when Cramer filed the renewed petition for determination of incapacity and again when it failed to appoint Smith counsel when it appointed an emergency temporary guardian. Cramer argues that since no “summary proceeding” was held for the appointment of an emergency temporary guardian, no appointment of counsel is necessary. This argument elevates form over substance. The trial court’s decision to appoint an emergency temporary guardian after hearing the evidence presented at the hearing on the temporary injunction converted the hearing into a “summary proceeding” for purposes of section 744.3031(1).

We reverse and remand for further proceedings. The status of Smith’s ability to act for himself during the pendency of this appeal and the status of the authority of any court-appointed representative during the pendency shall remain unchanged until the trial court acts in accordance with this opinion.

We affirm without comment on the other issues raised by Martinez.

Affirmed in part, reversed in part, and remanded.

DAMOORGIAN, C.J., STEVENSON and CONNER, JJ., concur.


author: LEVINE, J. Taylor, J.,

text:
    Edward HERMAN, individually, and as Personal Representative of the Estate of Miriam Herman, his wife, Appellants, v. INTRACOASTAL CARDIOLOGY CENTER, Mitchell D. Silver, M.D., individually, and Mitchell D. Silver, M.D., P.A., Appellees.
    No. 4D11-1214.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Rehearing and Rehearing En Banc Denied Sept. 26, 2013.

      Mark S. Weinstein of Weinstein & Wein-stein, P.A., Weston, and Roy D. Wasson of Wasson & Associates Chartered, Miami, and George A. Vaka and Nancy A. Lauten of Vaka Law Group, Tampa, for appellants.
    Scott L. Mendlestein and Tiffany A. Hil-ler of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Coral Gables, and Rose Marie Antonacci-Pollack of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Fort Lauderdale, for appel-lees.
   ON MOTION FOR REHEARING

LEVINE, J.

We grant appellees’ motion for rehearing, withdraw our previous opinion, and substitute the following in its place.

The issue presented for our review is whether the trial court erred in granting a motion to dismiss based upon the commission of fraud upon the trial court. We find that the trial court did not err since there was competent, substantial evidence to support the trial court’s decision. We find, specifically, that there was competent, substantial evidence that appellant sentiently set in motion an unconscionable scheme calculated to interfere with the judicial system’s ability to adjudicate the matter impartially. We affirm the order of the trial court, as we find that the trial court did not abuse its discretion in imposing the sanction of dismissal.

Edward Herman, individually and as personal representative of the Estate of Miriam Herman, his late wife, timely appeals a final order dismissing his wrongful death medical malpractice lawsuit for fraud on the court. In 1999, Miriam Herman filed a medical malpractice lawsuit against her cardiologist, Dr. Mitchell Silver, alleging that Dr. Silver caused her to go into renal failure by negligently failing to obtain a nephrology consult before clearing her for open heart surgery in 1997. After her death in 2001, appellant Edward Herman was appointed as the personal representative of the estate and the case was converted to a wrongful death suit.

In late 2002, then-defendant Bethesda Memorial Hospital propounded requests for production, one of which asked for “any notes or diaries maintained by Edward Herman or Miriam Herman that pertain to the issues raised in this lawsuit.” A few days later, Dr. Silver served the same request for production, including the same request for diaries.

Although Mr. Herman did keep a diary chronicling his wife’s medical condition from March 1997 (when she was admitted into the hospital) to July 1997, this diary was never disclosed to the defense in discovery. Mr. Herman never responded to either Bethesda’s or Dr. Silver’s request for production. An August 2003 motion to compel production filed by Dr. Silver was never set for hearing or ruled on.

The case went to trial in 2006. Mr. Herman presented expert testimony from a cardiologist that Dr. Silver negligently failed to get a nephrology consult in spite of clear medical signs that Mrs. Herman needed treatment before being cleared for surgery. He also presented expert testimony that any reasonable nephrologist would have implemented treatment and medication that would have prevented her from going into renal failure, given her medical condition.

At trial, Mr. Herman testified at length about his background, his life with Mrs. Herman, and the medical care she received. Mr. Herman testified that the first time he ever learned anything about Mrs. Herman’s renal insufficiency was when she was in the hospital after the surgery. He also testified that, before the surgery, his wife rode bicycles, went for walks, and danced.

Mrs. Herman’s deposition was taken before her death and the deposition recording was played at trial. Mrs. Herman denied that she had problems with her kidneys prior to the surgery. She also testified that she would routinely take walks with her husband for exercise. She was not specifically asked about whether she rode bicycles or went dancing.

The Hermans’ daughter, Ms. Susan Winograd, testified at trial regarding her mother’s physical activity. She testified that the family would go bike riding when she was younger. She also testified that her mother was a vibrant woman who loved dancing, but explained that her mother had to give up dancing after the surgery.

The 2006 trial resulted in a hung jury, and the case was scheduled to be retried in 2010.

In late 2009, Mr. Herman and Ms. Wino-grad were involved in a major argument, and Mr. Herman threatened to take her out of his will. Ms. Winograd then sent a letter to defense counsel, asserting that her father’s testimony at trial contained “many lies” and informing defense counsel of the existence of her father’s diary regarding Mrs. Herman’s medical condition.

Dr. Silver subsequently filed a motion to dismiss the case for fraud upon the court. The motion alleged, in pertinent part, that Mr. Herman committed perjury in his September 2000 deposition and in his trial testimony, and that Mr. Herman intentionally withheld a diary which contradicted his sworn testimony.

The trial court held an evidentiary hearing on the motion to dismiss. At the hearing, the defense presented testimony from Ms. Winograd, Mrs. Herman’s sister, and Mrs. Herman’s brother-in-law. Mr. Herman requested that the trial court review Mr. Herman’s 2010 updated deposition, in which he responded to the allegations against him.

The defense presented evidence which was inconsistent with Mr. Herman’s testimony on a number of issues. The contradictions relevant to this opinion are as follows:

Kidney Problems Pre-Surgery. At trial, Mr. Herman testified that the first time he ever learned anything about Mrs. Herman having renal insufficiency was when she was in the hospital after the surgery. However, Mr. Herman’s diary contains several references to his wife’s kidney problems during her hospitalization in the weeks leading up to the surgery.
Risks of Surgery. At trial, Mr. Herman gave the following testimony regarding whether the doctors explained the risks of stroke and renal failure: “They discussed the risk of the surgery, assuming or on the basis that it was going to go favorably, but they never did discuss with us the eventualities if it didn’t go right, Dr. Silver. And that wasn’t something that was explained to us.” However, in his diary, Mr. Herman mentions that Dr. Silver discussed the risk of stroke and that Mrs. Herman would be placed on a blood thinner to reduce the risk of clotting.
Option of Different Hospital. At trial, Mr. Herman testified that he did not recall having a discussion with Dr. Silver in which Dr. Silver told the Hermans to consider going to a university hospital due to the seriousness of the situation. Specifically, Mr. Herman testified: “No. The essence of what you’re saying is that they didn’t have a cardiologist unit in Bethesda. It was as simple as that. They couldn’t perform the procedure there, so they had to find another hospital. And that’s how we ended up in Delray.” However, Mr. Herman’s diary alluded to a possible transfer to a university hospital.
Mrs. Herman’s Activity Levels. At trial, Mr. Herman testified that, before the surgery, his "wife rode bicycles, walked, and danced. However, at the evidentiary hearing, Mr. Herman’s daughter testified that none of this was true; she claimed that her father pressured her before the trial to lie and testify that her mother rode bicycles, danced, and did a lot of walking.
Jacket Testimony. At trial, Mr. Herman testified that his deceased wife was “with us today,” telling the jury that he was wearing a jacket that his wife bought for him. However, his daughter testified that he fabricated the story about the jacket, that his new wife actually bought him the jacket, and that he later joked with the new wife about his testimony regarding the jacket.

The trial court took the matter under advisement and later entered a written order dismissing the case for fraud on the court. The trial court concluded that Mr. Herman “has sentiently set in motion a scheme to defraud” after considering the standard set forth in JVA Enterprises, I, LLC v. Prentice, 48 So.3d 109, 112 (Fla. 4th DCA 2010). The trial court first noted that it found Mr. Herman’s testimony at the trial regarding his personal background false, but that this testimony was “relatively minor and, alone, could be left as fodder for cross examination.” We quote the following from the trial court’s well-reasoned order:

However, Mr. Herman also gave false testimony that goes to the very issues presented to the jury in this case. He falsely testified that his wife led an active life leading up to the subject surgery. He described her as actively biking, dancing and walking. All of this testimony was offered to establish the alleged damages occasioned by the surgery. All of this testimony was false.
More disturbingly, Mr. Herman persuaded his daughter to support this fiction. Prior to trial, Ms. Winograd was given a list of “topics” that would be covered at trial. Mr. Herman continued to stress to Ms. Winograd the importance of telling the jury that Miriam Herman was active prior to the subject surgery. Ms. Winograd testified she went along with her father at the time of trial, but this testimony was false.
Perhaps of more significance, the Plaintiff maintained a diary which chronicled his wife’s medical treatment, including her interaction with Dr. Silver, the defendant in this case. This diary was never produced during discovery in this case and its existence was not revealed until December of 2009 when Ms. Winograd contacted defense counsel.... While the Plaintiff asserts that the diary was not requested, the Court concludes that multiple discovery requests required the production of the diary.
The diary directly contradicts Mr. Herman’s sworn testimony at trial in several key respects. This false testimony included when Miriam Herman developed kidney problems, the risks explained to the Plaintiffs at the time of surgery and the option of having the surgery performed at a hospital in Miami.
Mr. Herman went so far in his efforts to mislead the jury that he testified at trial that he wore to court each day a jacket that Miria[m] Herman had purchased for him. He described at trial how she was “with us today” because he had the “pleasure” of wearing the jacket during the trial. Ms. Winograd’s testimony, which the Court finds to be credible, established that the jacket was purchased by Mr. Herman’s second wife ... after Miriam’s death. The jacket was purchased to wear in Florida at the trial.
This is not a case where Mr. Herman “fudged” a few facts to make himself look better in the eyes of the jury. The Court concludes that Mr. Herman consciously set out to mislead the Court and the jury with the only possible motivation being pecuniary gain.

The trial court denied Mr. Herman’s motion for rehearing, and this appeal follows.

“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....” Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992). As such, “[w]e review orders dismissing complaints for fraud upon the court to determine if there has been an abuse of discretion.” Bass v. City of Pembroke Pines, 991 So.2d 1008, 1010-11 (Fla. 4th DCA 2008); JVA Enters., 48 So.3d at 112. This court has also stated that “[ajlthough a dismissal imposed as a sanction is reviewed under an abuse of discretion standard, the trial court’s discretion is narrowed where dismissal is imposed for fraudulent conduct such as that alleged here, in which a more stringent abuse of discretion standard is appropriate.” Bob Montgomery Real Estate v. Djokic, 858 So.2d 371, 374 (Fla. 4th DCA 2003); Cha-cha v. Transport USA, Inc., 78 So.3d 727, 730 (Fla. 4th DCA 2012).

The standard that must be met for a trial court to impose dismissal for fraudulent conduct is:

The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sen-tiently 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.”

JVA Enters., 48 So.3d at 113 (Fla. 4th DCA 2010) (quoting Arzuman v. Saud, 843 So.2d 950, 952 (Fla. 4th DCA 2003)). The standard of appellate review of a “clear and convincing finding” is whether the finding is supported by competent, substantial evidence. Wigley v. Hares, 82 So.3d 932, 946 (Fla. 4th DCA 2011).

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.” Arzuman, 843 So.2d at 952. Trial courts should reserve this sanction “for instances where the defaulting party’s misconduct is correspondingly egregious.” Id. (citation omitted).

While “dismissal is a drastic remedy that should be used sparingly,” Hogan v. Dollar Rent A Car Sys., Inc., 783 So.2d 1211, 1213 (Fla. 4th DCA 2001), in this case, even under a narrowed abuse of discretion standard, a reasonable judge could find that the evidence of false testimony justified dismissal. There is competent, substantial evidence in the record to support the trial court’s finding of clear and convincing evidence that Mr. Herman sen-tiently set in motion a scheme to defraud that was calculated to interfere with the judicial system’s ability to adjudicate the matter impartially.

The trial court heard testimony at an evidentiary hearing on appellees’ motion to dismiss, and determined that appellant’s daughter and appellant’s sister-in-law were credible witnesses. The trial court then determined, based on testimony the trial court expressly found credible, that appellant gave false testimony that went “to the very issues presented to the jury in this case.” Significantly, the trial court relied in great part on the diary kept by appellant, which the trial court determined “directly contradicts Mr. Herman’s sworn testimony at trial in several key respects.”

In Bass v. City of Pembroke Pines, 991 So.2d 1008 (Fla. 4th DCA 2008), this court “tested” “[t]he standard of review applicable to orders imposing sanctions for fraud upon the court.” Id. at 1009. In Bass, the plaintiff, in answering interrogatories and in deposition testimony, omitted information regarding her medical history. The plaintiff primarily failed to disclose her history of migraine headaches and the names of several physicians who had treated her for these headaches. On appeal of the trial court’s decision to dismiss for fraud on the court, this court first noted that “the limited scope of our review ... dictates the outcome of this appeal.” Id. at 1011. We ultimately deferred to the “specific findings by the trial court” that the plaintiffs discovery responses were “absolute, intentional, and untruthful,” and affirmed the sanction of dismissal because “reasonable minds could differ on the imposition of this sanction.” Id. at 1012.

Even if one were to find the analysis a “close call,” that would not justify overturning the trial court’s factual findings and final determination. This court found in another case regarding a trial court’s decision concerning a motion to dismiss for fraud on the court, that “[t]he ultimate question is ‘whether reasonable minds could differ as to the propriety of that decision.’ ” JVA Enters., 48 So.3d at 113 (quoting Bass, 991 So.2d at 1011). We found “that reasonable minds could differ under the facts of th[at] case.” Id. Similarly, under the facts of the present case, reasonable minds could differ as to the propriety of the trial court’s decision. See id. (noting “the issue is not whether any member of this panel would make the same decision as the trial judge”).

Although one conceivably may find a lesser sanction to be a more appropriate sanction, that is not our standard of appellate review. “While this court might have imposed a lesser sanction, the question in this case is close enough that we cannot declare the lower court to have abused its discretion.” Cox v. Burke, 706 So.2d 43, 47 (Fla. 5th DCA 1998). Clearly, the trial court’s determination that appellant’s daughter and sister-in-law were credible witnesses, in conjunction with the trial court’s reliance on a diary written by appellant himself would, at the least, constitute the type of evidence that is “close enough” for our court not to find the trial court to have abused its discretion.

The trial court acted within its discretion in finding that appellant’s collective falsehoods at trial about the timing of Mrs. Herman’s kidney problems, about what the Hermans had been told regarding the risks of surgery, and about Mrs. Herman’s activity levels were sufficiently “central” to the case to satisfy the standard for dismissal. See Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002). The trial court also specifically found that Mr. Herman had coached Ms. Winograd into giving false testimony as to Mrs. Herman’s activity levels at trial. The trial court adequately balanced the equities, and even noted in its order that certain inconsistencies, alone, were “relatively minor.” See Piunno v. R.F. Concrete Constr., Inc., 904 So.2d 658, 659 (Fla. 4th DCA 2005) (giving deference to imposition of dismissal sanction where “trial court’s written order contains a thoughtful discussion of the facts and a well-reasoned conclusion, clearly showing the court balanced the equities”). In this case, we will not substitute our judgment for that of the trial court by assessing the effect of each falsehood on the potential ultimate outcome of Mr. Herman’s case. See, e.g., McKnight v. Evancheck, 907 So.2d 699, 701 (Fla. 4th DCA 2005) (“the trial court was within its discretion to determine that the misrepresentations made by [plaintiff] permeated the case”); Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So.2d 1011, 1012 (Fla. 4th DCA 1997) (finding no abuse of discretion in dismissing personal injury action for fraud, where plaintiff “lied about matters which went to the heart of his claim on damages”).

Our decision that the trial court’s ruling on the motion to dismiss should be sustained naturally takes into account the unusual facts of this case. After all, as a practical matter, how many times would one expect to see the appearance of a litigant’s diary, whose authorship is undisputed by both sides, contradict the previous trial testimony of the very author of the diary on “several key respects”?

In summary, where “repeated fabrications undermine[ ] the integrity of’ a party’s entire case, “the trial court has the right and obligation to deter fraudulent claims from proceeding in court.” Savino, 697 So.2d at 1012. The trial court’s finding of clear and convincing evidence of the requisite calculated, unconscionable scheme allowing it to dismiss this case for fraudulent conduct is supported by competent, substantial evidence in the record. We, therefore, affirm the decision of the trial court.

Affirmed.

CIKLIN, J., concurs.

TAYLOR, J., dissents with opinion.

Taylor, J.,

dissenting.

I respectfully dissent. This case fails to present the type of egregious misconduct or extreme circumstance which would warrant dismissal with prejudice.

As the majority acknowledges, we apply a less deferential abuse of discretion standard when reviewing a dismissal imposed for fraud on the court. See Bob Montgomery Real Estate v. Djokic, 858 So.2d 871, 374 (Fla. 4th DCA 2003). Although a trial court has discretion to dismiss an action for fraud on the court, it should exercise this severe sanction only in extreme circumstances. JVA Enters., I, LLC v. Prentice, 48 So.3d 109, 113 (Fla. 4th DCA 2010). 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.” Arzuman v. Saud, 843 So.2d 950, 952 (Fla. 4th DCA 2003) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)). “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.’” Arzuman, 843 So.2d at 952 (citations omitted).

When imposing this harshest of sanctions, trial courts should weigh the “policy-favoring adjudication on the merits” with the need to “maintain the integrity of the judicial system.” Id. Except in the most extreme cases where it appears that the process of the trial has itself been subverted, simple factual inconsistencies and “even false statements” are well managed through the use of impeachment and traditional discovery sanctions. Granados v. Zehr, 979 So.2d 1155, 1158 (Fla. 5th DCA 2008); Ruiz v. City of Orlando, 859 So.2d 574, 576 (Fla. 5th DCA 2003). To support a dismissal, the court must find the “false testimony was directly related to the central issue in the case.” Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002).

Moreover, “if the motion to dismiss for fraud would not likewise survive a motion for summary judgment, the trial court should presume the matter not subject to dismissal.” Gilbert v. Eckerd Corp. of Fla., 34 So.3d 773, 776 (Fla. 4th DCA 2010); accord Jacob v. Henderson, 840 So.2d 1167, 1170 (Fla. 2d DCA 2003) (“The same facts for which this case was dismissed would not [support] a motion for summary judgment nor a motion for directed verdict, for there are questions of material fact.”).

The Fifth District’s decision in Cox v. Burke, 706 So.2d 43 (Fla. 5th DCA 1998), is one of the leading decisions on dismissals for fraud. In Cox, the trial court dismissed a plaintiffs legal malpractice action due to fraud on the court. The legal malpractice action was based on the defendants’ representation of her in an underlying medical malpractice claim. The plaintiff gave false or inconsistent information regarding her identity, whether she had a driver’s license, her social security number, and whether she had sustained any fractures or other trauma prior to the accident at issue. Id. at 45-46. The trial court dismissed the action with prejudice. Id. at 46. On appeal, the Fifth District reasoned that although some of the alleged fraud was unproven, the plaintiff “has been shown to have given many false or misleading answers in sworn discovery that either appear calculated to evade or stymie discovery on issues central to her case.” Id. at 47. Although the Fifth District expressed some doubt about the trial court’s decision to dismiss, the appellate court nonetheless deferred to the trial court’s judgment because it was a close case: “While this court might have imposed a lesser sanction, the question in this case is close enough that we cannot declare the lower court to have abused its discretion.” Id.

Case law after Cox has emphasized that “Cox presented an extremely unusual fact pattern, wholly unlike the more conventional impeachment issues that have shown up in some more recent decisions.... ” Ruiz, 859 So.2d at 576. Indeed, the Fifth District acknowledged that in Cox it had “apparently underestimated” the “seductive power” of the remedy of dismissal. Id. at 575. Therefore, subsequent cases “have tried very, very hard to explain, and to emphasize, that this power to dismiss a lawsuit for fraud is an extraordinary remedy found only in cases where a deliberate scheme to subvert the judicial process has been clearly and convincingly proved.” Bologna v. Schlanger, 995 So.2d 526, 528 (Fla. 5th DCA 2008). “A testimonial discrepancy is usually not enough; there should be clear and convincing evidence of a scheme calculated to evade or stymie discovery of facts central to the case. This will almost always require an evidentiary hearing.” Id. As Judge Griffin pointed out in her specially concurring opinion in Bolo gna: “We all know that the capacity to remember and the categories of what we remember varies widely among individuals and depends on a number of common factors, such as age, stress, fatigue, emotion. I am skeptical that all of the plaintiffs in the recent profusion of ‘fraud on the court’ cases are thieves and perjurers.” Id. at 580 (Griffin, J., concurring).

In this case, the trial court concluded that Mr. Herman committed a fraud upon the court. However, as explained below, the alleged falsehoods or inconsistencies by Mr. Herman were either: 1) subjective assessments about his wife’s activity levels; 2) not actual inconsistencies at all; or 3) immaterial to the central issues in the case.

As a preliminary matter, there is no clear and convincing proof that Mr. Herman lied at trial about his wife’s activity levels before the surgery. Nor is there clear and convincing proof that he persuaded his daughter to lie at trial. Even with the trial court’s finding that Mr. Herman’s daughter and sister-in-law gave credible testimony at the evidentiary hearing, their testimony did not establish that Mr. Herman knew himself to be testifying falsely at trial about his subjective assessment of how active his wife was before the surgery. I fail to see how the trial judge — who did not preside over the original trial — could conclude, based solely on the testimony at the evidentiary hearing, that Mr. Herman gave false testimony at trial when he testified that his wife rode bicycles, went for walks, and danced. The testimony of Ms. Winograd and Mr. Herman’s in-laws established nothing more than their subjective opinion that Mrs. Herman was inactive and lethargic. Although Ms. Winograd claimed at the hearing that her mother “never” rode a bicycle and “never” took walks with Mr. Herman, she did not live with her parents and was not in a position to testify that Mrs. Herman never rode bicycles, went for walks, or danced.

Moreover, Mr. Herman’s trial testimony was also largely confirmed by the deposition of Mrs. Herman herself, which was taken before her death, wherein she testified that she and her husband would routinely take walks for exercise. Mr. and Mrs. Herman would have been in the best position to know Mrs. Herman’s activity levels before the surgery. And there has been no accusation that Mrs. Herman’s deposition testimony was fraudulent.

With respect to the claim that Mr. Herman persuaded Ms. Winograd to perjure herself, it is important to examine Ms. Winograd’s actual testimony at trial. In her brief testimony at trial, Ms. Winograd stated that her family would go bike riding when she was younger, that her mother “loved” music and dancing, and that after the surgery Mrs. Herman would have to sit down when Mr. Herman tried to dance with her. Assuming, as the trial court found, that Mr. Herman did stress to Ms. Winograd the importance of telling the jury that Mrs. Herman was active prior to the surgery, this would not constitute fraud unless he believed it to be false. It is also worth noting that the only person who has admitted to giving contradictory testimony in this matter is Ms. Winograd, a witness whose bias may have resulted from being cut out of Mr. Herman’s will. In short, rather than constituting clear and convincing proof of fraud, the dispute about Mrs. Herman’s activity levels involved conflicting assessments as to a largely subjective issue. This was a credibility dispute better left for a jury to resolve.

The trial court also found that Mr. Herman misled the jury when he testified at trial that the jacket he wore to court was purchased by Mrs. Herman. However, in my view, this testimony was immaterial to the central issues in the case. Mr. Herman’s testimony at trial that he was wearing a jacket purchased by his deceased wife was completely irrelevant to any issue that was of consequence to the determination of the case. This testimony would have been properly excluded had there been an objection. Thus, it cannot be said that this testimony concerned a “central” issue in the case. In any event, although Ms. Winograd testified that Mrs. Herman did not purchase the jacket that her father wore at the 2006 trial, Mr. Herman again testified in his 2010 deposition that Mrs. Herman in fact purchased the jacket. Again, any alleged falsehood on this issue was a credibility dispute better left for cross-examination at trial.

The trial court also focused on three alleged inconsistencies between Mr. Herman’s diary and his trial testimony: “This false testimony included when Miriam Herman developed kidney problems, the risks explained to the Plaintiffs at the time of the surgery and the option of having the surgery performed at a hospital in Miami.” However, contrary to the trial court’s findings, much of Mr. Herman’s trial testimony as to these matters either did not go to the heart of the claim or was not materially inconsistent with his diary. Thus, I disagree with the majority’s characterization of the diary as contradicting the previous trial testimony of Mr. Herman in “several key respects.”

To be sure, there was an inconsistency on the issue of when Mr. Herman remembered his wife developing kidney problems. Mr. Herman testified at trial that the first time he learned of any renal insufficiency in his wife was after the surgery, but in his diary (which he started keeping a few weeks before the surgery) he made several references to his wife experiencing kidney problems during her hospitalization before the surgery. This discrepancy, however, is not particularly pertinent to the medical malpractice claim. The entire theory of the plaintiffs case was that Dr. Silver negligently failed to get a nephrology consult in spite of clear signs that Mrs. Herman was having kidney problems before the surgery. Indeed, the second amended complaint specifically alleged that Mrs. Herman had a “known history of renal insufficiency” and that Dr. Silver failed to take proper precautions before the surgery in light of this renal insufficiency. Therefore, any inconsistency between Mr. Herman’s testimony at trial that the first time he learned of his wife’s renal insufficiency was after the surgery, and his notes in his diary mentioning the renal insufficiency a little over two weeks before the surgery, is the type of simple factual inconsistency best left for cross-examination. This inconsistency was not particularly material to the claim and cannot be deemed to have been a calculated scheme to interfere with the judicial system’s ability to adjudicate the matter impartially.

Second, Mr. Herman’s testimony regarding the doctors informing him and his wife of the risks of surgery was not actually inconsistent with his diary. Mr. Herman’s diary did mention some of the risks explained to the Hermans before the surgery. However, when Mr. Herman’s testimony at trial is read fully and in context, it was not inconsistent with his diary. His testimony at trial acknowledged that he and his wife consented to the ordinary risks attendant to the surgery, which included renal failure. He was merely suggesting in his testimony that he and his wife were not warned of, and did not consent to, the risks of surgery occurring as a result of the doctors doing something wrong. In any event, even if there were a discrepancy on this issue, it is hardly relevant given that the plaintiffs never asserted a claim that the surgery was performed without Mrs. Herman’s informed consent.

Finally, the alleged inconsistency regarding whether the surgery could have been performed at a university hospital in Miami does not go to the heart of the case. Any inconsistency on this issue is immaterial, as it would not unfairly hamper Dr. Silver’s defense. Indeed, the fact that Mrs. Herman could have gone to another hospital is not a defense at all to the medical malpractice claim. The entire basis for the lawsuit is that Dr. Silver negligently cleared her for surgery. The hospital where the surgery ultimately occurred was wholly irrelevant.

The cases where appellate courts have affirmed dismissals for fraud typically involved situations where the fraud was blatant or uncontroverted. See, e.g., Bass v. City of Pembroke Pines, 991 So.2d 1008, 1011-12 (Fla. 4th DCA 2008) (noting that the plaintiff “intentionally omitted significant information” on multiple answers and that “there was no excuse given for these blatant omissions”); Gilbert v. Eckerd Corp. of Fla., Inc., 34 So.3d 773, 776 (Fla. 4th DCA 2010) (distinguishing “cases where fraud or misrepresentation is un-controverted”). This case does not fall into that category. The case at bar presented conventional impeachment issues and was unlike the “extremely unusual fact pattern” in Cox, where “there was a significant amount of evidence suggesting that the court could not even be confident of who the plaintiff was, much less what had happened to her.” Ruiz, 859 So.2d at 576. Indeed, the evidence in this case “wouldn’t even support a summary judgment or directed verdict.” Id.

The majority’s holding, if taken to its logical conclusion, could seriously jeopardize the invaluable right to trial by jury. In my view, no reasonable trial judge would have dismissed this case for fraud, where many of the alleged inconsistencies did not pertain to central issues in the case, and where the remaining evidence regarding the alleged fraud failed to establish that Mr. Herman knew himself to be lying. “The power to resolve disputes over the truth or falsity of claims belongs to a jury.” Jacob v. Henderson, 840 So.2d 1167, 1169 (Fla. 2d DCA 2003). As the Jacob court explained:

Trials result from factual disputes. In these disputes, the facts on one side are, at best, less true and, at worst, false or fraudulent. In nearly every intersection collision, there is only one person with the right of way. Is the fact that both drivers believe they had the right of way the result of fraud? If there are ten eyewitnesses to the collision and all agree driver A had the right of way, does that make driver B’s claim fraudulent and subject to dismissal?

Id. Here, the factual disputes regarding Mr. Herman’s alleged inconsistent or false statements should have been decided by a jury.

In sum, the nature and substance of any inconsistencies and contradictions in this case required the trial court to consider a lesser sanction, reflecting the proper balance between the policy favoring adjudication on the merits and the need to maintain the integrity of the judicial system. See Suarez v. Benihana Nat’l of Fla. Corp., 88 So.3d 349, 353 (Fla. 3d DCA 2012) (“Even if the record in this case could give rise to some inference of willful or intentional conduct, the nature and substance of the inconsistencies and contradictions required the trial court to consider some lesser sanction, reflecting the proper balance of competing interests and appropriately tailored to address the party’s conduct and the resulting prejudice.”).

This case simply fails to present the type of egregious misconduct or extreme circumstance which would warrant dismissal with prejudice. Because I believe the trial court abused its discretion in imposing the sanction of dismissal, I would reverse.

      . However, even applying an ordinary abuse of discretion standard, I would find that the trial court abused its discretion.

      . It is not completely clear whether the trial court was, at least in part, relying upon Mr. Herman's failure to produce the diary in discovery as a ground for dismissal. If the trial court in fact meant to rely upon the failure to produce the diary as a ground for dismissal, this would have been error, as the trial court never issued an order compelling Mr. Herman to respond to the discovery. See Garvin v. Tidwell, — So.3d -, 2012 WL 5232224, 37 Fla. L. Weekly D2506 (Fla. 4th DCA Oct.24, 2012) (sanctions for a discovery violation are not an appropriate remedy where the opposing party did not file a motion to compel and the trial court did not issue an order compelling discovery).