Motion,Ex Parte: Khai Nguyen Plaintiff vs. Melissa Machan, ARNP, et al Defendant

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                                Filing # 70022989 E-Filed 03/29/2018 05:13:07 PM

IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR BROWARD
COUNTY, FLORIDA.

CASE NO: CACE14014218 (04)

KHAI NGUYEN, individually, and as
Personal Representative of the Estate

of MAI TUYET NGUYEN, deceased and
on behalf of KRISTEN HUYNH, KYLIE
NGUYEN, KADEN NGUYEN and as the
Natural parent of KADEN NGUYEN, a
Minor,

Plaintiffs,
vs.

PLANTATION GENERAL HOSPITAL, L-P., d/b/a
PLANTATION GENERAL HOSPITAL; ALEX
BIRMAN, M.D.; SUNLIFE OB/GYN SERVICES
OF FORT LAUDERDALE, P.A.; GEORGES
EDOUARD, M.D.; GEORGES EDOUARD, M.D.,
P.A., d/b/a PLANTATION PAVILION OB/GYN;
MELISSA MACHAN, ARNP; ROBERTA
SANTINI, M.D.; DORI RATHBUN; FLORIDA
UNITED RADIOLOGY, L.C.,

Defendants.
/

 

DEFENDANTS, PLANTATION GENERAL HOSPITAL, L.P., d/b/a PLANTATION
GENERAL HOSPITAL AND DORI RATHBUN, MOTION IN LIMINE TO EXCLUDE
ANY MENTION OF A MARRIAGE BETWEEN
KHAI NGUYEN AND MAI TUYET NGUYEN

Defendants, PLANTATION GENERAL HOSPITAL, L.P., d/b/a PLANTATION
GENERAL HOSPITAL and DORI RATHBUN, by and through their undersigned attorneys,
hereby file this Motion in Limine to preclude any statements made by Plaintiffs’ counsel and any

of Plaintiffs’ witnesses, and as grounds would state the following:

1. This is a medical malpractice action in which Plaintiffs allege the Defendants
1

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 3/29/2018 5:13:07 PM.****CASE NO: CACE14014218 (04)

provided negligent care and treatment to MAI TUYET NGUYEN, deceased, and KADEN
NGUYEN, a minor, during her admission to Plantation General Hospital in 2012.

2. On November 8, 2016 Defendants filed a Motion for Partial Summary Judgment
or, in the Alternative Motion to Dismiss Khai Nguyen’s Claims for Fraud on the Court (attached
as exhibit 1).

3. There was undisputed evidence that Kha and Mai were never legally married in
Vietnam or the United States.

4. This Court entered an Order Granted the Motion for Summary Judgement on July
27, 2017 (attached exhibit 2).

5. The Order states that Khai Nguyen “does not qualify as a statutory survivor as a
matter of law and his individual claims as a putative spouse under Florida’s Wrongful Death Act
are barred.

6. Based upon the foregoing, Khai Nguyen was not legally married to Mai Tuyet
Nguyen at the time of her death and therefore there should not be any mention in the trial.

WHEREFORE, Defendants, PLANTATION GENERAL HOSPITAL, L.P., d/b/a
PLANTATION GENERAL HOSPITAL and DORI RATHBUN, hereby request this Honorable
Court to enter an Order granting its Motion in Limine and preclude any mention of a marriage
between Khai Nguyen and Mai Tuyet Nguyen at trial.

CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED that a true and correct copy of the foregoing has been

delivered via e-service this 29th day of March, 2018 to all addressees set forth on the attached

Service List.CASE NO: CACE14014218 (04)

LA CAVA & JACOBSON, P.A.

Attorneys for Defendants, Plantation General
Hospital and Dori Rathbun

501 E. Kennedy Blvd.; Suite 1250

Tampa, FL 33602

Telephone: 813-209-9611

Facsimile: 813-209-9511

/s/Louis J. La Cava

BY:
LOUIS J. LaCAVA
Fla. Bar No: 507880
WILLIAM V. CARCIOPPOLO
Fla. Bar No: 510051SERVICE LIST

Maria D. Tejedor, Esq.

Diez-Arguelles & Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

Telephone: 407-705-2880

Eservice: mail@theorlandolawyers.com

leah@theorlandolawyers.com
Attorneys for Plaintiff

Alex Alvarez, Esq.

The Alvarez Law Firm

355 Palermo Avenue

Coral Gables, FL 33134

Telephone: 305-444-7675

Eservice: alex@talf.law
maria@talf.law

Co-Counsel for Plaintiff

Georges Edouard, M.D.

4330 W. Broward Blvd. Suite C

Plantation, FL 33317

Via Email: EDOUARD_1142@outlook.com
Pro Se Defendant

CASE NO: CACE14014218 (04)IN THE CIRCUIT COURT OF THE
47" JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA

CASE NO, 14-14218 (04)

KHAI NGUYEN, individually, and as

Personal Representative of the Estate of

MAI TUYET NGUYEN, deceased, and on
Behalf of KRISTEN HUYNH, KYLIE NGUYEN,
KADEN NGUYEN, the surviving children of

MAI TUYET NGUYEN, and as the natural parent
of KADEN NGUYEN, a minor,

Plaintiff,
v.
PLANTATION GENERAL HOSPITAL, L.P. d/b/a
PLANTATION GENERAL HOSPITAL, ALEX BIRMAN, M.D.,
SUNLIFE OB/GYN SERVICES OF FT. LAUDERDALE, P.A.,
GEORGES EDOUARD, M.D., GEORGES EDOUARD, M.D.,
P.A., d/b/a PLANTATION PAVILION OB/GYN, MELISSA
MACHAN, ARNP, ROBERTA SANTINI, M.D., DORI RATHBUN,
FLORIDA UNITED RADIOLOGY, L.C.,

Defendants,
/

DEFENDANTS, PLANTATION GENERAL HOSPITAL AND DORI RATHBUN’S
MOTION-FOR PARTIAL SUMMARY JUDGMENT OR; ALTERNATIVELY MOTION-TO-——_—

DISMISS PLAINTIFF KHAl NGUYEN’S CLAIMS FOR FRAUD UPON THE COURT,
AND INCORPORATED MEMORANDUM OF LAW

COME NOW Defendants, PLANTATION GENERAL HOSPITAL, L.P. d/b/a
PLANTATION GENERAL HOSPITAL, and DOR] RATHBUN, by and through their
undersigned counsel and pursuant to Rule 1.510, Florida Rules of Civil Procedure, and
file their Motion for Partial Summary Judgment or, Alternatively, Motion to Dismiss Plaintiff
Khai Nguyen’s Claims for Fraud Upon the Court, and Incorporated Memorandum of Law,

and state as follows:

EXHIBIT

‘tabbies*1. Plaintiff, Khai Nguyen (“Khai”), is asserting claims and seeking damages
under Florida’s Wrongful Death Act as a putative surviving spouse of the Decedent, Mai
Tuyet Nguyen (“Mai”), (See Second Amended Complaint, {{] 7, 66.a.). In order to
maintain such claims, Khai must prove that he and Mai were legally married at the time
of her death.

2. However, the undisputed evidence conclusively establishes that Khai and
Mai were never legally married—either in Vietnam or the United States. While Khai and
Mai obtained permission in Vietnam to hold a wedding celebration, the Vietnamese
authorities would not grant them a marriage license and instructed them to obtain such a
license in the United States, which Khai conceded they never did.

3. Florida does not allow common-law marriages and there is no evidence that
Khai and Mai, who were United States citizens residing in Florida, had a common-law
marriage in Vietnam that Florida would recognize. In fact, Khai testified that the
Vietnamese authorities told him he needed to register the marriage in accordance with

the law. Khai conceded that he knew he needed to obtain a formal certificate or license.

 

4. Plaintiff, Khai, represented in sworn filings in two separate legal
proceedings in the Seventeenth Judicial Circuit (a petition for administration of Mai's
estate and a petition to determine paternity of Kaden Nguyen) that Mai had no surviving
spouse.

5. Plaintiff, Khai, was not Mai’s legal spouse and, therefore, does not qualify
as a statutory “survivor” for purposes of the Wrongful Death Act as a matter of law.
Accordingly, his claims as a putative surviving spouse under the Wrongful Death Act are

barred.6. There are no genuine issues of material fact concerning the absence of a
valid legal marriage between Khai and Mai; therefore, Defendants are entitled to a partial
summary judgment in their favor regarding Khai’s putative claims as a statutory survivor
under the Wrongful Death Act.

7, Additionally or alternatively, Khai’s claims as a putative surviving spouse
should be dismissed because there is clear and convincing evidence in the record that
Khai has attempted to perpetrate a fraud on this Court by claiming in this case that he
and the Decedent, Mai, were married when the undisputed evidence establishes that they
were never legally married and that Khai himself represented in sworn pleadings in
different Divisions within this Circuit Court that Mai was not married at the time she died
and had no surviving spouse.

UNDISPUTED FACTS

Khai testified at his deposition that Mai was his wife and that they were married on

February 13, 2009 in Vietnam. (Deposition of Khai Nguyen, taken January 19, 2016

(‘Nguyen Deposition”), at 92:12-17). However, Khai conceded that he does not have a

 

marriage certificate between him and Mai. (fd., at 97:14-19). He testified that the
Vietnamese authority would not grant a marriage certificate because he and Mai were
both American citizens at the time. (/d., at 94:24 - 95:11). He acknowledged that for the
same reason, he and Mai do not have a Vietnamese marriage certificate like the one
between Mai and Kevin Huynh, her former husband, a copy of which is attached hereto
as Exhibit “A”, (/d., at 95:12 — 96:1; 96:12 — 97:6).

With respect to documentation of the purported marriage, Khai produced a
document in the Vietnamese language, a copy of which is attached hereto as Exhibit

“B”. Defendants have had the document translated into English by Precision Translating
3Services, and a copy of the translation is attached hereto as Exhibit “C”, The document
is entitled, “Application for Confirmation,” and it is an application Khai completed for
permission to hold a wedding celebration. The document reflects that the local
government body, the “People’s Committee of Ward 7,” confirmed the content of the
application on or about June 10, 2009, and also reflects the government body’s request
that “Mr and Mrs Nguyen Khai to proceed marriage registration in accordance with the
legal regulations.”

Khai explained the nature of the “Application for Confirmation” at his deposition.
He and Mai were both United States citizens, but they had a lot of family and friends back
in Vietnam, so they wanted to go to Vietnam and have a wedding there. (Nguyen
Deposition, at 97:1-5). He testified that in Vietnam, under the community rules and law,
one has to obtain permission from the city prior to having a wedding ceremony or party.
(fd., at 92:20-25). He testified that the application form was necessary because in
Vietnam, under Communist control rule, the government is very strict about what type of

parties or gatherings are allowed, so he had to request permission to have a party or

 

 

“ceremony for the wedding so the government would know ‘exactly what he was doing.
(id, at 98:12-21). He testified that in the form, he was asking permission to have a
wedding celebration. (/d., at 102:2-12),

Khai testified that the Vietnamese authority approved the form and allowed them
to have the wedding celebration. (/¢., at 98:21-23). The only thing the government
permitted them to do with that document was to have a ceremony or party for the wedding.
(Nguyen Deposition, at 95:9-11; 101:3-14). He conceded that the approved form reflects
the government’s recommendation that he register a marriage license under the law. (/d.,

at 102:13-15).Khai testified that after he and Mai had their wedding celebration in Vietnam, he
went back to the city and asked for a marriage certificate, but he was told that he had to
return to Florida where he lived and request a marriage license there since he and Mai
were American citizens, (/d., at 93:1-10; 95:3-9; 102:13-18; 107:24 — 108:3),

Khai admitted that he knew he needed to have a marriage certificate, and he
conceded he should have tried to get a marriage certificate in the United States. (/d., at
104:4-5, 22-23). However, he testified that he never went to the courthouse to request a
marriage certificate. (/d., at 93:21-22). In fact, he testified that because of his and Mai’s
commitment to each other, and because they were busy with work and had minimal time,
he did not think it was important for him to spend time getting a marriage certificate at the
courthouse, (/d., at 104:17-25). Plaintiffs’ counsel stipulated at Khai’s deposition that
they did not file a marriage certificate in the United States. (/¢., at 105:1-2). Khai also
testified that he and Mai never filed tax returns together as a married couple, but instead
filed separate returns. (/d., at 183:11-16).

After Mai’s death, on August 29, 2012, Khai, as Petitioner, filed a Petition for

Administration of Mais estate in the Circuit Court of the Seventeenth Judicial Circuit in

and for Broward County, Florida, which was assigned Case No, PRC12-03918. A copy
of the Petition for Administration is attached hereto as Exhibit “D”. In the Petition for
Administration, Khai states that he has an interest in the estate “as the Spouse and an
heir-at-law of the decedent” and identifies himself in a list of the estate beneficiaries as
the “Spouse.” (Petition for Administration, {J 1, 3, 5).

Approximately two weeks later, on or about September 17, 2012, Mai’s sister, Kim
Nguyen, and Kim’s husband, Cong Tran, filed a Verified Emergency Ex-Parte Motion for

Temporary Injunction and Incorporated Memorandum of Law (“Motion for Injunction”), a
5copy of which is attached hereto as Exhibit “E”, related to a Regal Nails salon franchise
that was owned and operated by Cong Tran and Mai prior to Mai’s death. The Motion for
injunction refers to Khai as the father of Mai’s second and third children, but states: “Mai
Nguyen and Khai Nguyen co-habitated for years, but were never legally married.” (Motion
for Injunction, {] 5). The Motion for Injunction further states that on September 10, 2012,
“Khai Nguyen falsely represented to the franchisor of Regal Nails Salon & Spa that he
was the surviving spouse of Mai Nguyen, As such, he took over physical control of the
salon and spa and barred Kim Nguyen, Cong Tran and their family from the premises.”
(/d., §] 6). The Motion for Injunction further refers to Khai Nguyen’s “fraudulent and
unlawful claim to be the surviving spouse of Mai Nguyen.” (/d., {| 11).

On February 1, 2013, Khai filed a Petition to Determine Paternity and for Related
Relief ("Paternity Petition’) in the Circuit Court of the Seventeenth Judicial Circuit in and
for Broward County, Florida, which was assigned Case No. FMCE 13001408 (Division
41). A copy of the Paternity Petition is attached hereto as Exhibit “F”. The Paternity

Petition asserts that Khai is the father of a minor child, born in 2012, and that Mai was the

 

child’s mother and died while giving birth to the child. (See Petition, Section I, ¥f 1, 3).
In Section |, paragraph 10, entitled “Paternity Facts,” the Petitioner, Khai, states:
“Petitioner is the natural father of the minor child. The mother was not married at the
time of the conception and/or birth of the minor child named in paragraph 1.”
(Petition, Section |, ] 10.B.) (emphasis added). The Petition is dated January 24, 2013
and signed by Khai beneath the following affirmation: “I understand that | am swearing or
affirming under oath to the truthfulness of the claims made in this petition and that the
punishment for knowingly making a false statement includes fines and/or imprisonment.”

The Petition is also notarized by a notary public based on Khai producing a Florida driver's
6license for identification. A Final Judgment of Paternity was entered in the case on May
1, 2013, which includes a finding that Khai is the natural and biological father of the minor
child, Kaden Nguyen. A copy of the Final Judgment of Patemity is attached hereto as
Exhibit “G”.

On March 25, 2013, Khai filed an Amended Petition for Administration in Case No.
PRC12-03918, a copy of which is attached hereto as Exhibit “H”, The Amended Petition
for Administration differs significantly from the original Petition for Administration in that
in the Amended Petition, Khai merely asserts that he has an interest in the estate “as the
Father and Natural Guardian of a majority of the decedent's minor children and heirs-at-
law,” and he omits himself from the list of beneficiaries of the estate. (Amended Petition
for Administration, {| 1, 3, 5). Most importantly, Khai does not state that he is Mai’s
spouse anywhere in the Amended Petition for Administration. Indeed, there is no
teference to Khai as a surviving spouse in paragraph 3 of the Amended Petition, which
states, “So far as is known, the names of the beneficiaries of this estate and of the

decedent's surviving spouse, if any, their addresses and relationship to decedent, and

 

the dates of birth of any who are minors, are... .” (Amended Petition for Administration,

] 3) (emphasis added). Khai admitted his signature on the Amended Petition for

Administration at his deposition. (Nguyen Deposition, at 112:22 — 113:2; 113:18-22).
MEMORANDUM OF LAW

|. Summary Judgment Standard
Summary judgment is proper if there is no genuine issue of material fact and if the
moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Volusia
County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). A party

moving for summary judgment has the initial burden of showing the absence of an issue
7of material fact and the entitlement to entry of summary judgment in its favor. See Holl v.
Talcott, 191 So. 2d 40, 43 (Fla, 1966). Once the moving party has met its burden, the
nonmoving party must show the existence in the record of a genuine issue of material
fact to avoid entry of summary judgment. See id. at 43-44 (stating that burden shifts to
the nonmoving party to show the existence of disputed material fact issue). “If the moving
party presents evidence to support the claimed non-existence of a material issue, he will
be entitled to a summary judgment unless the opposing party comes forward with some
evidence which will change the result - that is, evidence sufficient to generate an issue
on a material fact.” Schneider v. Schlichter, 917 So. 2d 299, 301 (Fla. 4th DCA 2005)
(citation omitted).
I. Argument — Summary Judament

Florida's Wrongful Death Act defines “survivors” as “the decedent’s spouse,
children, parents, and, when partly or wholly dependent on the decedent for support or
services, any blood relatives and adoptive brothers and sisters. It includes the child born

out of wedlock of a mother, but not the child born out of wedlock of the father unless the

 

father has recognized the responsibility for the child’s support.” § 768.18(1), Fla. Stat.
(emphasis added). Where a plaintiff is not the surviving legal spouse of the decedent, he
is not entitled to damages under the Florida Wrongful Death Act as her surviving spouse.
See Capo v. Estate of Borges, 560 So. 2d 254, 254 (Fla. 3d DCA 1990).

Under Florida law, the validity of a marriage is determined by the law of the state
where the contract of marriage takes place—i.e,, where the marriage was entered into.
Young v. Garcia, 172 So, 2d 243, 244 (Fla. 3d DCA 1965); Smith v. Anderson, 821 So.
2d 323, 325 (Fla. 2d DCA 2002) (citation omitted). The same principle applies with

respect to marriages in foreign nations. See Am. Airlines, Inc. v, Mejia, 766 So. 2d 305,
8307 n.5 (Fla. 4th DCA 2000) (“[A] valid marriage according to the law of a foreign nation
will be recognized as such in the United States.”); Montano v. Montano, 520 So. 2d 52,
52-53 (Fla. 3d DCA 1988).

Although Defendants have not been able to find a Florida case which addresses
the status of a purported marriage under Vietnamese law, a case from the Court of
Appeals of Texas, Nguyen v. Nguyen, 355 S.W.3d 82 (Tex. App. 2011), involves a nearly
identical factual scenario with respect to whether a Vietnamese couple was legally
married. In the Nguyen case, it was undisputed that the county clerk’s office in Texas
never issued a marriage license to the couple. 355 S.W.3d at 85. In that case, the
putative husband testified inconsistently about whether he ever obtained a marriage
license in Vietnam, but he did not offer, nor did the trial court admit, any such license. fd.
at 90. The appellate court held that the only official documentation of the purported
marriage, an “Application for Certification” of the wedding ceremony, did not constitute
evidence of a valid legal marriage. /d. at 90-91. The court also held that the putative

couple’s testimony that they had a formal ceremony in Vietnam and considered

 

themselves to be married was insufficient to prove a valid marriage under Vietnamese
law. Id, at 92.

The pertinent facts in the instant case are nearly identical to those in the Texas
Nguyen case. Although Khai testified that he and Mai had a wedding ceremony or
celebration in Vietnam and considered themselves to be married, the evidence is
undisputed that they never obtained a formal marriage license or certificate in either
Vietnam or the United States. And although Khai produced an “Application for
Confirmation” which allowed he and Mai to hold their wedding celebration, the

Vietnamese authorities noted that they needed to register their marriage in accordance
9with law and Khai testified that the Vietnamese authorities refused to give them a marriage
license and directed them to seek it in the United States because of their American
citizenship. This Court, like the Texas appellate court in Nguyen, should find that such
facts do not establish a valid legal marriage.

To the extent Khai attempts to argue that he and Mai shared a “common-law
marriage,” such an argument must fail based on the undisputed facts and applicable law.
“Florida does not recognize the validity of common-law marriages contracted in Florida
after 1968.” Smith v. Anderson, 821 So. 2d 323, 325 (Fla. 2d DCA 2002) (citation
omitted). Although Florida does recognize common-law marriages that are entered into
in states that do accept common-law marriages, id. (citation omitted); see also Johnson
v. Lincoln Square Properties, Inc., 571 So, 2d 541 (Fla. 2d DCA 1990), there is no
evidence that Vietnam recognizes “common-law marriages” as valid legal marriages. To
the contrary, Khai himself conceded that the Vietnamese authorities directed him in the
“Application for Confirmation” to register the marriage in accordance with the law, and

Khai further testified that the Vietnamese authorities refused to issue a marriage license

 

to him and Mai because they were both American citizens. Furthermore, the undisputed
evidence is that Khai and Mai were American citizens living in Florida, and there is no
evidence that Khai and Mai ever lived together in Vietnam beyond their visit there to have
a wedding celebration with family and friends,

In Young v. Garcia, 172 So, 2d 243 (Fla. 3d DCA 1965), an alleged widow of the
decedent brought a wrongful death action. The court examined whether the plaintiff, a
resident and domiciliary of Puerto Rico, could be considered a widow for purposes of a
wrongful death claim where she and the decedent were never ceremonially married, they

never lived together in Florida, and they lived together only in Puerto Rico, which
10jurisdiction does not recognize common law marriages. See id. at 244. The court held
that regardless of whether it applied Florida law or Puerto Rico law, the result was the
same—the plaintiff was not the decedent's widow, /d. The court concluded: “It is
conceded that Puerto Rico does not recognize common law marriages. Since the alleged
marriage was invalid where celebrated, it is similarly invalid in Florida.” /d. The court also
noted that the record was replete with evidence that the plaintiff and decedent “intended
to get married but had not gotten around to it.” fd, (emphasis in original). Accordingly,
“no common law marriage could have existed in Florida.” fd. As in Young, here, the facts
are such that no legally cognizable “common-law marriage” existed between Khai and
Mai.

Thus, the undisputed evidence conclusively establishes that Khai and Mai were
never legally married in either Vietnam or the United States or under the law of Vietnam
or Florida. Accordingly, Khai cannot be Mai’s surviving spouse for purposes of the
Wrongful Death Act as a matter of law. See Am. Airlines, 766 So. 2d at 305 (reversing

order determining appellee was spouse of the decedent where the couple was not legally

 

married under Colombian taw and, therefore, they were not spouses within the meaning
of Florida law); Capo, 560 So. 2d at 254. Thus, Khai’s claims for damages as a surviving
spouse are barred as a matter of law, and Defendants are entitled to a partial summary
judgment in their favor as to that issue.

lll. Argument -- Dismissal for Fraud upon the Court
“(T]he trial court has the right and obligation to deter fraudutent claims from
proceeding in court.” Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So. 2d 1011, 1012
(Fla. 4th DCA 1997). A party who has been guilty of fraud or misconduct in the

prosecution of a civil proceeding should not be permitted to continue to employ the very
1institution he has subverted to achieve his ends. See Metro. Dade Cnty. v. Martinsen,
736 So. 2d 794 (Fla. 2d DCA 1999) (quoting Hanono v. Murphy, 723 So, 2d 892 (Fla. 3d
DCA 1998)). The integrity of the civil litigation process depends on truthful disclosure of
facts, Martinsen, 736 So, 2d at 796.

Therefore, “[t]he trial court has the inherent authority, within the exercise of sound
Judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the
court... .” Cox v. Burke, 706 So, 2d 43, 46 (Fla. 5th DCA 1998) (citing Kornblum v.
Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992)); see also Morgan v. Campbell, 816
So, 2d 251 (Fla. 2d DCA 2002). 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 clairn or defense.” Cox, 706 So. 2d at 46 (citing
Aoude v. Mobil Oi! Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)).

The evidence of fraud in this case—Khai’s assertion of claims as the surviving

 

spouse of Mai in this case and testimony that he and Mai were married despite the clear
evidence they were never legally married and Khai’s own representations in an estate
administration proceeding and paternity proceeding within this same Circuit Court that
Mai was not married at the time of her death and had no surviving spouse—demonstrates
a conscious intent to obtain monetary recovery based upon a fraudulent claim. The issue
of Khai’s status as a putative surviving spouse goes to the heart of his damages claims
because if he and Mai were not legally married, he is not a surviving spouse and he is
not entitled to any surviving spouse damages under the Wrongful Death Act. The Fourth

District Court of Appeal has consistently upheld dismissals by the trial court in situations
12like this where a plaintiff has engaged in fraud with respect to a central issue. See Piunno
v. R.F. Concrete Constr., inc., 904 So. 2d 658 (Fla. 4th DCA 2005) (affirming dismissal
with prejudice of negligence action based on plaintiff's material false testimony
concerning facts which directly related to a central issue of the case); Savino, 697 So. 2d
at 1011 (affirming dismissal of personal injury action where plaintiff lied about his
educational background and intelligence level in order to inflate his damages claim).
The Fourth District recognized in Kornblum v. Schneider, 609 So. 2d 138 (Fla. 4th
DCA 1992), that where the plaintiff lied about matters which went to the heart of his claim
on damages, the repeated fabrications undermined the integrity of his entire action. /d,
at 139. “[Wlhere a party lies about matters pertinent to his own claim . .. and perpetrates
a fraud that permeates the entire proceeding, dismissal of the whole case is proper.” Cox,
706 So. 2d at 47; see also Baker v. Myers Tractor Servs., Inc., 765 So. 2d 149 (Fla. 1st
DCA 2000) (affirming dismissal! with prejudice of negligence action based on plaintiff's
material false testimony concerning facts which directly related to a central issue of the

case); Austin v. Liquid Distributors, Inc., 928 So, 2d 521 (Fla. 3d DCA 2006) (same);

 

Rosenthal v. Rodriguez, 750 Sa. 2d 703 (Fla. 3d DCA 2000) (affirming dismissal of
personal injury action based upon “repeated and perjurious” statements made by the
plaintiff on matters central to her action).

Khai's claims as a putative surviving spouse should be dismissed because of
Khai’s perpetration of a fraud on this Court regarding his claim that he and Mai were
married, Khai is making a mockery of the system by maintaining that he is Mai’s surviving
spouse in this action for damages when he stated in sworn pleadings in two other cases
in this same Circuit Court—cases in which Khai sought to be appointed personal

representative of Mai’s estate and in which he sought to establish paternity and custodial
13rights with respect to Kaden Nguyen—that Mai was not married when she died and had
no surviving spouse. Dismissal for fraud on the Court is the appropriate response and
well within this Court’s discretion. See Herman v. Intracoastal Cardiology Center, 121
So. 3d 583 (Fla. 4th DCA 2013) (affirming dismissal of medical malpractice action where
husband of decedent engaged in calculated scheme to defraud court). 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,
CONCLUSION

Based on all the foregoing, the undisputed evidence demonstratives conclusively
that Plaintiff, Khai, was not legally married to the Decedent, Mai, at the time of her death
and, therefore, Plaintiff is barred from recovering as a surviving spouse under the Florida
Wrongful Death Act. Moreover, there is clear and convincing evidence in the record that
Plaintiff, Khai, has attempted to perpetrate a fraud on this Court by claiming in this case

that he and the Decedent, Mai, were married when the undisputed evidence establishes

 

that they were never legally married and that Khai himself represented in sworn pleadings
in different Divisions within this Circuit Court that Mai was not married at the time she died
and had no surviving spouse.

WHEREFORE, Defendants, PLANTATION GENERAL HOSPITAL and DORI
RATHBUN, respectfully request that this Honorable Court enter an Order granting this
Motion, entering partial summary judgment against Plaintiff, KHA! NGUYEN, on his
claims as a putative surviving spouse or, alternatively, dismissing his claims for
attempting to perpetrate a fraud on the Court, and providing any further relief the Court

deems just and appropriate,
14CERTIFICATE OF SERVICE

! HEREBY CERTIFY that a frue and correct copy of the foregoing document was
é-filed and e-served to all on the attached mailing list this 8 day of November, 2016.

BY: Js/ Carol J. Healy Glasgow
JOHN W. MAURO, ESQ.
jwm@belmr.com
Florida Bar No: 276634
CAROL J. HEALY GLASGOW, ESQ.
cjg@belmr.com
Florida Bar No. 026239
BILLING, COCHRAN, LYLES,
MAURO & RAMSEY, P.A.
Attorneys for Defendants, PGH and Rathbun
SunTrust Center, 6" Floor
515 E, Las Olas Blvd.,
Fort Lauderdale, Florida 33301
Ofc: (954) 764-7150; Fax: (954) 764-7279
E-Filing Address: ftl-pleadings@belmr.com

 

15Maria D. Tejedor, Esq.
Diez-Arguelles Tejedor

505 N. Mills Avenue

Orlando, FL 32803
407-705-2880
mail@theorlandolawyers.com
robin@theorlandolawyers.com
jack@theorlandolawyers.com

MW. Katherine Hunter, Esa.
Chimpoulis, Hunter & Lynn, P.A.
150 S. Pine Island Road, Suite 510
Plantation, FL 33324
954-463-0033

954-463-9562 — fax
ahoney@chl-law.com
khunter@chl-law.com
ewieland@chl-law.com

Georges Edouard, M.D.
4330 W. Broward Blvd. Suite C
Plantation, FL 33317

Mailing List
Nguyen/PGH
344.12204

Counsel for Plaintiff

Counsel for Dr. Santini & Florida United
Radiology

(pro se)

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Toi tén Ja: Neuyan Khai nguyén trude dy T6i la ngwol dan sinh sbng tai dja
phuong, Thudng ted tai 06 nha: 57 Da Phi - Phung 7 ~ TP.D4 Let, TOi theo gla
dinh di My thude dign doan ty, nay TOi vé lai Vigt Nam 06 +8 olnte fam dam oudi.

Vy TOi lam don nay kinh trinh Jan Quy ban cho phép Téi tén la: Nguyén
Khai sinkt ngay 22 thing 10 nim 1973 két hn cing voi ve 461 tén 1a: Nguy8n
Tuyét Mai sinh ngay 28 thang 11 nfim 1974 thudng tra tal sf nha 559C7 TS 4 ~
Khu phd 8 — Phudng Pho Khwong ~Thj xi Bén Tre,

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¥, UND PHUONG 7SOCIALIST REPUBLIC OF VIETNAM
INDEPENDENCE - FREEDOM — HAPPINESS

Respectfully to: PEOPLE’S COMMITTEE OF WARD 7-DA LAT CITY

APPLICATION FOR CONFIRMATION

My name is Nguyen Khai. Before that 1 am a resident living in the ward. My permanent
residence address is at No 57 Da Phu— Ward 7 — Da Lat City. 1 followed my family to go to the
US for family reunion. Now, I come back to Vietnam to celebrate my wedding.

I would like to write this application to submit to the committee to permit me — Full name:
Nguyen Khai, date of birth: 22 October 1973 to get married to my wife — Full name: Nguyen
Tuyet Mai, date of birth: 28 November 1974, permanence residence address: No, 559C7, Group
4—City Block § - Phu Khuong Ward — Ben Tre Town.

Now, I am writing this application to submit to the committee to permit me to celebrate my
wedding at No 57 Da Phu — Ward 7 - Da Lat City.

CONFIMRATION OF COMMUNE/ WARD Da Lat, dated 10 June, 2009
People’s Committee of Ward 7, Da Lat City confirms (Signed)
the content of the application of Mr Nguyen Khai to
permit him to celebrate his wedding at No 57 Da Phu- Khai Nguyen

Ward 7 — Da Lat City, The Committee request relevant
agencies to create favorable conditions to help him. We
also request Mr and Mrs Nguyen Khai to proceed
marriage registration in accordance with the legal
regulations.

Ward 7, dated 10 June, 2009
ON BEHALF OF PEOPLE’S COMMITTEE OF
WARD 7
PP. CHAIRMAN
VICE CHAIRMAN

(signed and sealed)

Nguyen Van Phung

 

Rilo Cry ee.

  

=Precision

L Eerie SERVICES

715 SW 73" Avenue | Miami! Florida 33144
Tet 305.373.7874 | Fax 305.381.7874

Toll Free 1.888,304.7874

eMaill info@pratran.com

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Certificate of Accuracy

State of Florida)
County of Miami-Dade)

 

Vicente de la Vega, certified by the Administrative Office of the United States Court and by the Court
Interpreters Certification Board of the State of Florida, swears, deposes and states that the attached
translation has been performed by a translator fully qualificd to translate in the VIETNAMESE and
ENGLISH languages, as engaged to this effect by and on behalf of Precision Translating Services, Inc,

    

Vicentg/de Ia Vega

The foregoing instrument was acknowledged, swom to and subscribed before me Thursday, December
17, 2015 by Vicente de la Vega, who is personally known to me or who has produced a Florida Driver’s
License as identification.

My commission-expires:

 

 

Notary Publie State of Florida at Large

 

 

The utmost care has been taken to ensure the accuracy of all translations. Precision Translating
Services, Inc, and its employees shall not be liable for any damages due to its own negligence or
errors in typing or translation, nor shall it be liable for the negligence of third parties.

BILCOC-CH_151215.04_TARGET_ENGLISH__nguyen_Packet.pdf; : ( (
IN THE CIRCUIT COURT FOR BROWARD COUNTY, FLORIDA
IN RE: ESTATE OF

 

     

PROBATE DIVISION
MAI TUYET NGUYEN, File Number:
a mele 09918
eceased. ivision: Ley
So 8
S rd
PETITION FOR ADMINISTRATION te Bos
(intestate Florida resident - single petitioner) 2k re o
& Oo
=
Petitioner, KHAI NGUYEN, alleges: aor - cal
; ca8 = Om

om

1. Petitioner has an interest in the above estate as the Spouse and an heir-at-lawof the dépedent.
7 oo
Petitioner’s address is 830 SW 67" Avenue, North Lauderdale, Florida 33068 and the name and post
office address of Petitioner’s attorney are set forth at the end Of this Petition.

2. Decedent, MAI TUYET NGUYEN, whose last known address was 830 SW 67" Aveme,

 

“North Lauderdale, Florida 33068, and, if known, whose age was 37, and whose social security —SS
number iQ 8389, died on July 26, 2012 at Plantation General Hospital, Plantation, Florida and
on the date of death decedent was domiciled in Broward County, Florida.

3. So far as is known, the names of the beneficiaries of this estate and of the decedent’s

surviving spouse, if any, their addresses and relationship to decedent, and the dates of birth of any

who are minors, are:

NAME ADDRESS RELATIONSHIP DATE OF BIRTH
(if Minor)
KHAINGUYEN — 830 SW 67" Avenue Spouse
North Lauderdale, Florida
33068
KRISTEN HUYNH 2800 Limited Lane NW Daughter August 3, 1999

Olympia, Washington
98502

REDACTE!( (
M830 SW 67" Aveme Daughter pt
North Lauderdale, Florida
33068
830) SW 67" Avenue Daughter |
North Lauderdale, Florida
33068
4, Venue of this proceeding is in this County because Broward County is the County in the State
of Florida where the decedent was domiciled at the time of his death.
5. KHAINGUYEN, whose address is 830 SW 67" Avenue, North Lauderdale, Florida 33068,
and who is qualified under the laws of the State of Florida to serve as Personal Representative
of the decedent’s estate is entitled to preference in appointment as Personal Representative because
he is the Spouse and an heir-at-law of the decedent, he is the Legal Custodian of

and ME, minor children and heirs-at-law of the decedent, he is willing and able to

 

 

 

 

serve as Personal Representative and is the best person qualified to serve as Personal Representative.

 

 

6. The nature and approximate value of the assets in this estate are:

ASSET APPROXIMATE VALUE
Negligence/Wrongful Death Claim Unknown
{in excess of $ 25,000)

 

7. This estate shall not be required to file a federal estate tax return.

8. Domiciliary probate proceedings are not known to be pending in another state or another
country.

9. An authenticated copy of so much of the domiciliary proceedings as is required by Fla.
Prob. R. 5.470 does not accompany this Petition as there are no known domiciliary proceedings.

10. After the exercise of reasonable diligence, petitioner is unaware of any unrevoked wills or

codicils of decedent.C C

Petitioner requests that KHAI NGUYEN be appointed Personal Representative of the estate

of the decedent.

Under penalties of perjury, I declare that ] have read the foregoing, and the facts alleged are true,

to the best of my knowledge and belief.

Signed on August ZZ, 2012.

 

’
—|

KHAI NGUYEN
Petitioner

 

Orlando, Florida 32804
(407) 849-7072

Florida Bar No. 846368
Attomey for PetitionerIN THE CIRCUIT COURT OF THE 17™ JUCICIAL
CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO.:

CONG TRAN AND KIMNGUYEN,

Plaintiffs,

vs.

KHAI NGUYEN,

 

COMES NOW, the Plaintiffs, Cong Tran and Kim Nguyen, by and through the
undersigned attorney, pursuant to Fla. R. Civ. P. 1.610 and respeoffully files this Emergency
Motion for Temporary Injunction and in support thereof states as follows:

FACTUAL BACKGROUND
1. Cong Tran and Kim Nguyen are husband and wife. Kim Nguyen and Mai Nguyen
were sisters, Pursuant to a Business Transfer Agreement executed on or about October 13, 2009,
Cong Tran and Mai Nguyen became the owners and operators of Regal Nails Store # 1851
located inside Walmart located at 7300 W, Mo Nab Road in North Lauderdale, Florida 33068,

2. According to Florida Department of State Division of Corporation records, effective
December 15, 2009, Cong Tran is the Director, Managing Member and Registered Agent of
Regal Nails Salon & Spa by Cong Tran, LLC. These records further indicate that the principal
address for the business is 7300 W, Mc Nab Road, Inside Wal-Mart, North Lauderdale, Florida
33068. at eee eeSee
3. According to Department of Treasury Records dated December 17, 2009, Cong Tran
has been assigned the Employer Identification Number (EIN) for Regal Nails Salon & Spa by
Cong Tran, LLC located at 7300 W. Mc Nab Road in North Lauderdale, Florida 33068.

4. According to the records of Bank of America, N.A., the business checking account for
Regal Nails Salon & Spa by Cong Tran, LLC that holds the same EIN as referenced above has
only two authorized signatories: Cong Tran and Kim Nguyen,
5. On or about July 26, 2012, Mai Nguyen died giving birth to ber third child. The father
of Mai Nguyen’s second and third children is Khai Nguyen. Mai Nguyen and Khai Nguyen
co-habitated for years, but were never legally married.

BASIS FOR EMERGENCY RELIEF
6. On or about Monday, September 10, 2012, Khai Nguyen falsely represented to the
franchisor of Regal Nails Salon & Spa that he was the surviving spouse of Mai Nguyen. As
such, he took over physical contro] of the sation and spa and barred Kim Nguyen, Cong Tran and
their family from the premises.
7 Cong Tran and Kim Nguyen seek this Emergency Ex-Parte Motion for Temporary
Injunction to prohibit and prevent Khai Nguyen from directly or indirectly, individually or
through Regal Nails corporate franchisor, selling, removing, transferring, concealing, dissipating
ot absconding with the assets and/or inventory currently in the physical location of Regal Nails
Salon & Spa by Cong Tran, LLC located inside Walmart at 7300 W. Mc Nab Road, North
Lauderdale, Florida 33068, as well as in the possession, custody or control of Regal Nails

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corporate franchisor; from controlling the physical location of Regal Nails Salon & Spa by Cong
Tran, LLC; from taking any action or issuing any instruction relating to the legal affairs of Regal
Nails Salon & Spa by Cong Tran, LLC; from taking any action in the name of the limited
liability company, from filing documents with the Secretary of State for the State of Florida
relating to the corporate governance of the limited tiability company; and further from enjoining
the Secretary of State for the State of Flosida from accepting and filing of record sny document
relating to the corporate governance of Regal Nails Salon & Spa by Cong Tran, LLC.

IMMEDIATE INJUNCTIVE RELIEF 1S APPROPRIATE,
8. Pursuant to Fla. R. Civ. P. 1,610 and as presented above, Plaintiffs are entitled to
immediate injunctive relief because (a) Plaintiffs claims have a substantial likelihood of success
on the merits; (b) Plaintiffs have no adequate remedy at law; (c) irreparable harm will occur
unless immediate injunctive relief is granted; and (d) injunctive relief serves the public interest.
9, Plaintiffs’ claims have 2 substantial likelihood of success on the merits because the
facts presented above establish their legal rights and interests to Regal Nails Salon & Spa by
Cong Tran, LLC.
10. Plaintiffs have no adequate remedy at law because these claims involve far more than
money damages. Critically, Defendant is corrupting the memory and legacy of Mai Nguyen, and
no relief after the fact can remedy the effect of that on her family.
1. Irreparable harm will occur unless immediate injunctive relief is granted because there
is no other way to remedy Defendant’s fraudulent and unlawful claim to be the surviving spouse
of Mai Nguyen, and to assure that her family will be free from the influence of Defendant within
the business she and her family established.

12. The Injunction sought will serve the public interest as it will preserve the status quo.

13. ‘The factual support which establishes that Plaintiffs have a clear legal right and
interest in Regal Nails Salon & Spa by Cong Tran, LLC is outlined in paragraphs 1 through 4
above. Defendant is attempting to convert Plaintiffs rights and interests under his fraudulent
scheme.

14. Plaintiffs believe that if the public interest is implicated in this matter, it would be best
served by the granting of this Injunction as it will preserve the status quo, and any potential harm
to the Defendant is outweighed by his fraudulent, unlawful conduct and the detriment to the
Plaintiffs if this Injunction is not granted,

WHEREFORE, Plaintiffs respectfully request that this Court enter a temporary injunction
against Defendant Khai Nguyen and enjoining him from directly or indirectly, individually or
through Regal Nails corporate franchisor, selling, removing, transferring, concealing, dissipating
or absconding with the assets and/or inventory currently in the physical looation of Regal Nails
Salon & Spa by Cong Tran, LLC located inside Walmart at 7300 W. Mc Nab Road, North
Lauderdale; Florida~33068,-as-well-as~inthe- possession; casiody-or-control-of Regal-Nails
corporate franchisor; from controlling the physical location of Regal Nails Salon & Spa by Cong
Tran, LLC; from taking any action or issuing any instruction relating to the legal affairs of Regal
Nails Salon & Spa by Cong Tran, LLC; ftom taking any action in the name of the limited
ability company, from filing documents with the Seoretary of State for the State of Florida
seating to the corporate governance of the limited liability company; and further from enjoining
the Secretary of State for the State of Florida from accepting and filing of record any document
relating to the corporate governance of Regal Nails Salon & Spa by Cong Tran, LLC; and any
such other relief this Court deems just and proper,

VERIFICATION

I, Kim Nguyen, am the Plaintiff in the above-captioned matter. I have read the foregoing
Verified Emergency Ex-Parte Motion for Temporary Injunction and I hereby verify and declare,
under penalty of perjury under the laws of the United States, that the foregoing is true, correct,
and accurate to the best of my knowledge.

Exeonted on September £7, 2012 in Broward County, Florida.

we We

Kim Nguyen, Plaintiff

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QM TA2 8:36 PM
Page 2 of 3ICE PURSU. R. CIV. P. 1.
B®

I, Stefanie C, Moon, Esq., certify that no efforts have been made to give Notice of this
Verified Emergency Ex-Parie Motion for Temporaty Injunction to the Defendant, The reason
why notice should not be required is based upon the Plaintiff's good faith belief that upon notice
of same, Defendant will sell, remove, transfer, conceal, dissipate or abscond with the assets
and/or inventory currently in the physical location of Regal Nails Salon & Spa by Cong Tran,
LLC; take control of the physical location; take any action or issue any instructions relating to
the legal affairs of the limited liability company; and file documents with the Secretary of State
for the State of Florida relating to the corporate governance of Regal Nails Salon & Spa by Cong

Tran, LLC,

Dated: September 17, 2012 Respectfully submitted,
S.C, Moon Law
Attorney for Plaintiffs

1408 S. Andrews Avenue
Ft. Lauderdale, FL 33316
Tel:954.530.7182
Fax 954.341.1044

By:
Stefanie C. Moon
Fla, Bar No. 0074195
scmoon@scmoonlaw.com

 

OV17A12 3:36 PM

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IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, AL
IN AND FOR BROWARD COUNTY, FLORIDA

Case No.: 13 00 q 4 0 8

Division: _ aaa
KHAI NGUYEN,
Petitioner, 9
and
Bo 8
MAI TUYET NGUYEN (DECEASED), Sao 30
. Respondent Ban Mm 5
Ses wa
os ised
Sa:

ie
PETITION TO DETERMINE PATERNITY AND FOR RELATED RECIEF-:

ae

   

Petitioner, Khai Nguyen, files this Petition saying:

This is an action to determine paternity, parental responsibility, tittie-sharing, and child
support under chapter 742, Florida Statutes,

SECTION I.
LL Petitioner is the father of the following minor child:

Name Birth date

(1) 2012

2. Petitioner currently lives at 830 SW 67th Avenue, North Lauderdale, Florida.

 

3 Respondent, Mai Tuyet Nguyen, was the child’s mother and died while giving child birth
to the minor AM +The mother died on July 26, 2012 at Plantation General Hospital. A
copy of the death certificate is attached to the petition as exhibit “A”.

4, Both parties are over the age of 18.

5. The Petitioner is not a member of | the military service. The Respondent is not a member of
the military service.

6. Neither Petitioner nor Respondent is mentally incapacitated.

7. A completed Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) 0
Affidavit is filed with this petition. K ey

8. A completed Notice of Social Security Number is filed with this petition.

Smee REDACTED a10.

A completed Family Law Financial Affidavit will be filed.

Paternity Facts.

A. The Petitioner has had a scientific DNA test performed by DDC International
laboratories. The results of the DNA test report conclude that the Petitioner is the
natural father. The probability of paternity is 99.9995%.

B. Additionally as a result of the sexual intercourse, R