DAYTONA BEACH — The 5th District Court of Appeals has dismissed two parts of a fraud on the court complaint, remanding the remaining grounds of the complaint to the trial court.

In the Dec. 29 opinion of the case Roger Niehaus vs. Dennis Dixon and Tina Niehaus, Judges Brian Lambert, Jay Cohen and William Palmer found two grounds of fraud on the court against Roger Niehaus were not substantiated and reversed an order for the six further grounds of the fraud on the court complaint to the trial court.

Roger Niehaus originally filed suit against pilot Dixon, accusing him of striking Niehaus in the head with an aircraft wing; however, Dixon denied the allegations, arguing Niehaus ran toward the airplane, struck the right wing with his fist and then fell to the ground pretending to be hit, according to the opinion.

After three years of litigation, Dixon filed a motion to dismiss all claims based on Niehaus’s complaints as fraud on the court based on three arguments: Niehaus had not notified the court he was in an automobile accident that caused his alleged head injuries by planes wing, lying in his deposition and purposefully keeping significant medical history from a retained expert.

Before addressing the first and eighth grounds of fraud on the court in question, authoring judge Lambert cited Cox v. Burke quoting Aoude v. Mobil Oil Corp to define “fraud on the court” to mean “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,” according to the opinion.

For the first ground of fraud on the court, Lambert said the trial court erred in finding Niehaus guilty since he did disclose his prior auto accident injury when he was asked, the opinion said. The eighth ground of fraud on the court considered photographs of Niehaus working on a plane, which the Niehaus claimed he was unable to do after accusing Dixon striking him with the airplane wing.

According to the lower court, Niehaus altered his testimony regarding one of the photos and found him guilty of giving untrue testimony, which “constituted fraud upon the court under the standard described in Cox,” according to the opinion.

Lambert explained why the appeals court disagreed.

“Assuming that Niehaus’s comment in response to the trial court was a ‘change; in testimony, we find that the court abused its discretion as this testimony did not clearly and convincingly demonstrate fraud,” Lambert wrote in the opinion.

For the remaining six grounds of fraud on the court, Lambert, Palmer and Cohen remanded the matter, noting further dismissal would be “best left to the trial court,” according to the opinion, adding that due to the trial court not setting a prescribed amount of attorney fees for Dixon, the appeals panel dismissed the award for reimbursement based on Mills v. Martinez 2005.

“We further dismiss for lack of jurisdiction that part of the appeal challenging the trial court’s decision to refer Niehaus to the State Attorney’s Office of the Seventh Judicial Circuit to investigate whether Niehaus committed perjury in the circuit court proceedings, and to refer Niehaus’s counsel, Timothy Keyser, to the Professional Ethics Committee of The Florida Bar for investigation into his actions in the course of this litigation,” Lambert wrote in the opinion.  

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