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Filing # 51794983 E-Filed 01/30/2017 01:14:52 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
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, CASE NO. 14-14218(04)
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.
{
PLAINTIFF’S RESPONSE AND MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS PLANTATION GENERAL HOSPITAL AND DOR! THBUN’S
MOTION FOR PARTIAL SUMMARY JUDGMENT, OR ALTERNATVELY, MOTION
TO DISMISS CLAIMS FOR FRAUD UPON THE COURT
Plaintiff, 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, files this Response and
Memorandum of Law in Opposition to Defendants’ Motion for Partial Summary Judgment, or
Alternatively Motion to Dismiss Plaintiff's Claim for Fraud Upon the Court, and in support
thereof, states as follows:
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 1/30/2017 1:14:51 PM.****1. Plaintiffs’ causes of action are founded upon the negligence leading to the death
of MAI TUYET NGUYEN (“Mai”), and birth injuries sustained by KADEN NGUYEN
(“Kaden”) as a result of medical malpractice.
2. Mai was a nail technician and lived in Fort Lauderdale, Florida with
Plaintiff, KHAI NGUYEN (“Khai”). The couple owned a home and lived together with Mai’s
daughter, KRISTEN HUYNH (“Kristen”), who was born on August 3, 1999, and their joint
natural child, KYLIE NGUYEN (“Kylie”), born on October 29, 2008.
3. In July 2012, Mai was pregnant with her third child, KADEN NGUYEN
(“Kaden”). On the evening of July 25, 2012, Mai presented to Plantation General Hospital with
signs of labor. Mai was at full term, but she had a life threatening and large blood clot in her
uterus. She died the next day at Plantation General Hospital, at 9:41 a.m. on July 26, 2012. Mai
was thirty-seven (37) years old.
4, Mai’s cause of death was the negligence of the Defendants in failing to report the
large blood clot in her uterus, which was seen on a prenatal ultrasound done at Plantation
General Hospital upon admission and due to the clot not being treated. The blood clot was in her
uterus and was identified by the radiologist, however, due to a series of failures to communicate
among the health providers, the blood clot was not reported to the treating obstetrician
(“OBGYN”). Mai’s labor was induced with a non-FDA drug medication containing a black box
warning that it was contraindicated in pregnancy and life threatening if given in the face of
uterine or placental bleeding. The contraindicated drug was given to speed up Mai’s delivery.
5. After Mai received the drug, her condition deteriorated, and she suffered hours of
vaginal bleeding, difficulty breathing, and significant drops in her blood pressure. The alarming
findings were not timely conveyed to her OBGYN, in part due to shift changes by the nurses,and thus she died while laboring. During the two days Mai was at the hospital, she was never
seen or evaluated by her attending OBGYN. Kaden was delivered by a hospital OBGYN via
emergency C-section after a failed forceps delivery and after Mai had coded and was
unresponsive.
6. Mai’s obituary refers to her husband Khai, and her three children, Kristen, Kylie,
and Kaden. Mai’s death certificate also refers to Khai as her husband.
7. Both Mai and Khai were born in Vietnam. Khai moved to the United States when
he was approximately twenty-one (21) years old. He met Mai in Fort Lauderdale in
approximately 2006. The couple lived together for several years. In the summer of 2009, the
couple traveled to Vietnam with family from Florida for their wedding. Khai and Mai held a
marriage ceremony in Vietnam. (Deposition of Khai Nguyen on January 19, 2016 (“Deposition”)
at 91: 12-17; Exhibit A, Affidavit of Dung Nguyen; Exhibit B, Affidavit of Hoa Le; Exhibit C,
Affidavit of Khai Nguyen).
8. To hold a marriage ceremony in Vietnam, there must be a request to the city for
permission to hold the ceremony. (Deposition at 92: 22-25; 98:13-23). Khai prepared the
required certificate of marriage permission in order to effectuate their wedding ceremony at
Khai’s family home in Lam Dong Da Lat City, Vietnam; permission was granted and the
ceremony was held. (Exhibit C, Affidavit of Khai Nguyen, Certificate of Marriage Permission).
The couple took photographs on their wedding day, as well as photographs on the trip to
commemorate their wedding celebration. (Exhibit C, Affidavit of Khai Nguyen). It is the cultural
norm in Vietnam for the bride to wear red.
9. During his deposition, Khai described the circumstance surrounding the wedding
and subsequent request for the marriage certificate:. .. [W]e have both of the family get together, friends and stuff like
that. So we make a big wedding thing, and after that, we — | went
back to the city and asked for the marriage certificate. And they
said, well, because I’m American citizen, and she’s [American]
citizen, the only way that I can do is go back to where I live, which
is in Florida here, to request for the marriage license.
So we married. Everybody know it. So we went back here, but
because of life is so busy and I did not have — well, because in
Vietnam, most of the time, two people get together, at both sides of
the family, friends, stuff like that, they know that we are married.
That’s officially marry. But, you know, paper in Vietnam, it’s
just not — just doesn’t mean anything at all. So pretty much
figuring out that you know we commit to each other and we want
to live together, and raise a family, have children, we just continue
to live that way. So that’s why I never really did go to the
courthouse to request for the marriage certificate.
(Deposition at 93: 3-22) (emphasis added)
10. Khai assumed the permission to marry had been filed in Vietnam for purpose of
securing a Vietnam marriage certificate. (Exhibit C, Affidavit of Khai Nguyen)
11. Khai admitted he does not have not have a marriage license issued by the
government for marriage to Mai. (Deposition at 91). However, Khai was always under the
impression that he and Mai were legally married in Vietnam. Khai’s deposition testimony shows
that he believed he had done all that was required to consider the marriage legal. For example,
when discussing why he had the certificate of marriage permission translated to English, Khai
stated, “[i]f I show anybody this [Vietnam certificate of marriage permission], they wouldn’t
know what I’m talking about . . . so 1 want to make sure that what I have in [English].”
(Deposition at 99: 23-24; 100:1). Khai later stated that he understood that the certificate meant,
“they stating strongly that — recommend to me to, you know, go back to the State and take
marriage license. But to them, this is — in Vietnam this is legally married.” (Deposition at 100:
23-25; 101:1) (emphasis added). Despite the recommendation that Khai and Mai register theirmarriage in the United States, Khai was under the impression that the certificate allowing the
marriage ceremony, and the ceremony itself, was enough to be considered married in Vietnam.
12, After the wedding, Mai and Khai built a life together. The couple returned to their
home in Fort Lauderdale, Florida, and they lived together as husband and wife. (Exhibit C,
Affidavit of Khai Nguyen). They never separated or divorced, and they represented to the public
that they were husband and wife. They shared a loving and committed relationship, and they
were devoted parents to their children. Khai now has custody and control of their minor children,
Kylie and Kaden.
13. Khai believed that “knowing that we are family and we have commitment and we
have done pretty much of whatever in Vietnam, but when we came to the State, we start heading
to work and, you know, we work days and week[end]s, and we have very minimal time. So we
just thinking that, you know, if we are family now, it’s not important in this area where we have
— we focus into making money to pay bills.” (Deposition at 104: 5-12). Khai further stated,
“being together and established family is the most important thing . . .” (Deposition at 104: 20-
21). The couple did not consider that Mai would suddenly die in childbirth.
14. Based on this evidence, Florida law creates a strong presumption that Khai and
Mai’s marriage ceremony created a legal marriage in Vietnam. There is no evidence, other than a
lack of a formal marriage certificate, to prove that Khai and Mai were not legally married in
Vietnam.
15. Khai has not committed fraud on this court at any time. His testimony has been
truthful in regards to his relationship with Mai. He testified to the following undisputed facts:
1. He lived with Mai before marriage.
2. They traveled to Vietnam for a wedding ceremony.3. They applied for and obtained Vietnam government permission to have a wedding
ceremony.
4. A wedding ceremony was had in Vietnam.
5. He held Mai out to the public as his spouse and they lived as husband and wife at all
times.
6. The couple was never separated or divorced.
7. He does not have a government issued official marriage license in Vietnam.
8. He does not have a Government issued marriage license in the U.S.
9. He is the father of Mai’s 2 children Kaley and Kaden.
10. He financially supports and maintains full custody of Kaley and Kaden today.
The law in Florida in this case creates a favorable presumption of marriage. It is the
Defendants burden to overcome that presumption and they have failed to present any such
evidence. In the event the presumption is rebutted, the issue of whether the couple were husband
and wife then becomes an issue of fact for the jury to determine. The law in support of the same
is provided below. The Defendants motions should be denied.
A pleading filed by a probate lawyer in a different proceeding cannot be used in support
of a motion to strike a pleading before a different tribunal. It was not fraud to allege in the
probate proceeding that Mai was his spouse as there is a legal presumption in favor of the same.
The pleading was filed and prepared by a lawyer and alternative pleading is a time honored and
well established practice. Any motions for fraud by the Defendants that arise from a probate
filing need to be filed and heard by the probate court and sanctions if any imposed by that court.
Filings in the probate wherein pleading states Mai was his spouse serve no probative value and
no bearing before issues in this court.MEMORANDUM OF LAW
I. Plaintiffs’ Response in Opposition to Defendants Motion for Partial Summary
Judgment
a. Summary Judgment Standard
Summary judgment is designed to test the sufficiency of evidence to determine if there is
sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the
pleadings. Florida Bar v. Greene, 926 So. 2d 1195 (Fla. 2006). Summary judgment is proper
where there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. Voort v. Universal Prop. & Cas. Ins. Co., 127 So. 3d 536, 538 (Fla. 4th DCA
2012) (citing McCabe v. Fla. Power & Light Co., 68 So. 3d 995, 997 (Fla. 4th DCA 2011)).
Summary judgment may be granted only where the facts are so crystallized that nothing remains
but questions of law. Id.
It is the moving party’s burden to conclusively prove the non-existence of a material fact.
Voort, 127 So. 3d at 538 (citing Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966); Albelo v. S. Bell,
682 So. 2d 1126, 1129 (Fla. 4th DCA 1996)). Further, the court must draw every possible
inference arising from the evidence in favor of the nonmoving party. Voort, 127 So. 3d at 538
(citing Schooner Oaks Ltd. Co. v. Schooner Oaks Condo. Ass'n, Inc., 776 So. 2d 304, 306 (Fla.
4th DCA 2000); Cont’! Concrete, Inc. v. Lakes at La Paz Ill Ltd. P’ship, 758 So. 2d 1214, 1217
(Fla. 4th DCA 2000); McDonald y. Fla. Dep't of Transp., 655 So. 2d 1164, 1168 (Fla. 4th DCA.
1995) (“If the evidence raises any issues of material fact, if it is conflicting, if it will permit
different reasonable inferences, or if it tends to prove the issues, it should be submitted to the
jury as a question of fact to be determined by the jury.”)). To defeat a motion for summary
judgment, the nonmoving party “must present evidence, not simply legal argument,demonstrating the existence of a disputed issue of material fact.” Woodruff v. Government
Employees Ins. Co., 669 So.2d 1114 (Fla. 1st DCA 1996).
b. The Court Must Recognize the Presumption in Favor of Valid Marriage.
The Court is required to presume that Khai and Mai were legally married until
Defendants present sufficient proof to overcome the presumption; then, the validity of the
marriage becomes an issue of fact. See Cobo v. Sierralta, 13 So. 3d 493, 497 (Fla. 3d DCA
2009); see also Stewart v. Hampton, 506 So. 2d 70, 71 (Fla. 5th DCA 1987) (concluding that
“[o]nce a marriage is shown to have been ceremonially entered into, it is presumed to be legal
and valid,” and then the party attacking the legality of such a marriage bears the burden of
rebutting this presumption); Grace v. Grace, 162 So. 2d 314, 317 (Fla. Ist DCA 1964) (“It is an
elementary principle of domestic relations law that a marriage, once shown to have been
ceremonially entered into . . . , is presumed to be legal and valid” and that “the burden of proving
the continuance of the previous marriage and the invalidity of the subsequent marriage is on the
party attacking the validity of the latter”); Teel v. Nolen Brown Motors, Inc., 93 So. 2d 874, 876
(Fla. 1957) (recognizing that “[a] presumption exists in favor of the validity of the last
marriage,” which is “one of the strongest presumptions known to the law,” such that “[t]he
burden of rebutting it rests upon the party attacking the legality of the . . . marriage”); Jn re
Estate of Beacher, 177 So. 2d 838, 839-40 (Fla. 3d DCA 1965) (recognizing that once prima
facie evidence of a marriage is presented, the party asserting the illegality of that marriage bears
the burden of proving that assertion). Defendants failed to sustain their burden.
The “presumption” of the existence of a valid marriage, recognized as one of the
strongest of all legal presumptions, arises out of the concern of all civilized societies over thelegitimacy of children, the descent and distribution of property and the sanctity of marriage as a
keystone of government. Jn re Estate of Marden, 355 So. 2d 121, 126 (Fla. 3d DCA 1978). This
presumption grows out of long and continuous cohabitation, the establishment and maintenance
of a home and family, recognition by the public generally together with the friends and
associates, that the man and woman are husband and wife. Jd. “In the probate of estates, the
surviving spouse is not required to go to the courthouse with her marriage license in hand to be
recognized as the surviving spouse.” Jd. Rather, the law presumes that a valid marriage does
exist and “he who properly raises such issue has a great burden to carry even some courts have
held of proving a negative.” Jd. The strength of the presumption increases with the lapse of time
through which the parties are cohabiting as husband and wife. Lambertini v. Lambertini, 655 So.
2d 142, 143 (Fla. 3d DCA 1995).
Khai and Mai lived together as husband and wife following their marriage ceremony in
Vietnam. They shared a home, shared vehicles, worked together, and had children together.
(Exhibit C, Affidavit of Khai Nguyen). Once they started living together, and subsequently got
married, they never lived apart, and they represented to the public that they were living together
as husband and wife. As such, Defendants have failed to offer any proof to overcome the
presumption that Khai and Mai lived together as husband and wife.
c. Defendants have failed to prove that the marriage was invalid under
Vietnamese law.
The basic principle of comity of marriage recognizes that a valid marriage under the law
of a foreign nation will be recognized as such in the United States. American Airlines, Inc. v.
Mejia, 766 So. 2d 305, n.5 (Fla. 4th DCA 2000) (citing Montano v. Montano, 520 So. 2d 52, 52-53 (Fla. 3d DCA 1988)). Moreover, although Florida no longer recognizes the validity of
common law marriages contracted in this state after 1968, it will respect a common-law marriage
validly created in a jurisdiction recognizing such marriages. Jd. (citing §741.211, Florida Statutes
(1999); Anderson y. Anderson, 577 So. 2d 658, 660 (Fla. Ist DCA 1991)). See also Guelman v.
De Guelman, 453 So. 2d 1159, 1160 (Fla. 3d DCA 1984) (trial court did not err in finding
Bolivia marriage valid, pursuant to Bolivian law); Johnson v. Lincoln Square Props., Inc., 57\
So. 2d 541, 542-43 (Fla. 4th DCA 1990); Goldman v. Dithrich, 131 Fla. 408, 179 So. 715 (Fla.
1938); Young v. Viruet de Garcia, 172 So. 2d 243 (Fla. 34 DCA 1965) (looking to the laws of
Puerto Rico to determine the validity of the marriage that was asserted).
In Vietnam, there are three conditions to getting married. “A man and a woman wishing to
marry each other must satisfy the following: (1) the man has reached the age of twenty or over
and the woman has reached the age of eighteen or over; (2) the marriage is voluntarily decided
by the man and the woman; neither partner is allowed to force or deceive the other; nobody is
allowed to force or obstruct their marriage; and (3) the marriage does not fall into one of the
circumstances where marriage is forbidden as prescribed in Article 10 of this Law.” Vietnam
Marriage and Family Law 2014, Vietnam Law in English (June 26, 2014), available at
http://vietnamlawenglish.blogspot.com/2014/06/vietnam-marriage-and-family-law-2014.html.
Khai and Mai met all conditions to marry. Khai and Mai also do not fall within any of the
circumstances where marriage is forbidden. /d. Although Vietnam does not recognize marriage
by a man and a woman who failed to register their marriage, there remains an issue of fact as to
why Mai and Khai were not permitted to register their marriage in Vietnam, as they met all the
requirements of getting married.' Currently there is no evidence to rebut Khai’s claim that “in
Vietnam this is legally married.” (Deposition at 100: 23-25; 101: 1) (emphasis added).
1 The U.S. State Department’s website notes the difficulty of obtaining proper documentation in Vietnam,Further, under section §741.10, Florida Statutes,
When any marriage is or has been solemnized by any of the
persons named in s. 741.07, and such person has not made a
certificate thereof on the marriage license as required by s. 741.08,
or when the marriage license has been lost, or when by reason of
death or other cause the proper certificate cannot be obtained, the
marriage may be proved by affidavit before any officer authorized
to administer oaths made by two competent witnesses who were
present and saw the marriage ceremony performed, which
affidavit may be filed and recorded in the office of the county court
judge or clerk of the circuit court from which the marriage license
issued, with the same force and effect as in cases in which the
proper certificate has been made, returned and recorded.
(emphasis added). Here, Plaintiffs have filed the Affidavits of Hoa Le and Dung Nguyen, both of
which are competent witnesses who were present and saw the marriage ceremony performed
between Mai and Khai. Although the marriage ceremony occurred in Vietnam and Mai is now
deceased, the affidavits allow the marriage to fall within section 741.10, Florida Statutes,
particularly considering the strong presumption in favor of marriage.
Defendants have failed to present summary judgment evidence pertaining to Vietnamese
law. In Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. 3d DCA 1984), the court
suggested that expert testimony as to foreign law would be necessary to show that the marriage
was not valid, citing the general presumption in favor of marriage validity. Moreover, “[i]t is
presumed that an official performing a marriage service — whether in a foreign or domestic
jurisdiction — would not have performed the service if there was any known impediment to the
marriage.” Jd. at 1160. As such, Defendants should have presented expert testimony as summary
judgment evidence to show that the document approving the marriage ceremony itself was
improper.
stating “Civil procedures in Vietnam, such as marriage, divorce, documenting the birth of a child, and
issuance of death certificates, are highly bureaucratic and can be slow . . . Enforcement of civil orders is
frequently difficult or non-existent.” Vietnam, U.S. Department of State,
https://travel.state.gov/content/passports/en/country/vietnam.html (last visited January 23, 2017).Defendants base their argument on a Texas divorce case, Nguyen v. Nguyen, 355 S.W.3d
82 (Tex. App. 2011). The ruling in that case should not be followed here because it was based on
the presented evidence of Vietnamese law and on the specific facts presented in that case, which
have no bearing here. At most, it constitutes an interpretation of Texas law. The dispute in that
case was as to the validity of a husband’s first marriage, and how that affected his second
marriage. /d. at 84. He had first married in Vietnam, and afterwards returned to Texas and
remarried. Jd. at 84-85. The Texas court found, consistent with comparable Florida law, that the
party seeking to render the present marriage invalid bears the burden of proof. /d. at 88. The only
documentation of the purported first marriage was an “Application for Certification” of the
wedding ceremony, but there was conflicting evidence as to any ceremony. However, the court
found evidence of a valid and continuing prior marriage. Jd. at 91-92. Here, there is no prior
marriage issue, and Khai and Mai had both the approved application and a formal ceremony.
Defendants claim that in the Texas Nguyen case, the “Application of Certification”
and testimony of the parties that the wedding occurred was not enough to prove a valid marriage
under Vietnamese law (D’s MSJ at 9). However, the court did consider the testimony of the
parties, and considered other evidence showing that the ceremony never occurred. Here, there is
no evidence to suggest that the ceremony did not occur. Moreover, Plaintiffs have offered
photographs of the marriage ceremony and affidavits of Khai, Dung Nguyen, and Hoa Le, all of
whom were present at the marriage ceremony.
The other cases relied on by Defendants are also distinguishable. In American Airlines,
Inc. v. Mejia, 766 So. 2d 305, 306 (4th DCA 2000), Carmen, a flight attendant, passed away and
her long-time partner, Libardo, attempted to claim he was a surviving spouse under the Florida
Wrongful Death Act. Libardo acknowledged that he and Carmen never participated in a formal,civil, or religious ceremony of marriage, but that they were common law married under
Columbian law. /d. Both sides offered the relevant Colombian law, along with translations by
experts in its jurisprudence. Jd. at 307. After considering the relevant Columbian law, the court
decided that the Columbian law for a “union” was so vastly different from the concept of
“matrimony,” that under Florida principles, Carmen and Libardo were not spouses of each other.
Id. at 309. Here, like Mejia, the court should consider the relevant Vietnamese law to determine
the validity of the marriage. Yet, Defendants have not offered sufficient evidence to dispute the
marriage in Vietnam.
In Young v. De Garcia, 172 So. 2d 243, 244 (3d DCA 1965) the court considered whether
the Plaintiff may be considered a widow when: (1) she and the decedent were never ceremonially
married; (2) she and decedent never lived together in Florida; and (3) she and decedent lived
together only in Puerto Rico, which does not recognize common law marriage. The court decided
that since the alleged marriage was invalid where celebrated, it is similarly invalid in Florida. Jd.
at 244. The court further considered that the couple never had a ceremonial marriage, and the
record was replete with evidence to the effect that plaintiff and decedent intended to get married
but had not gotten around to it. Jd. Again, this case is distinguishable. Unlike the couple in De
Garcia, Khai and Mai were ceremonially married in Vietnam and did live together in Florida.
Further, there is no evidence to suggest that Khai and Mai intended to get married, but “had not
gotten around to it.” Instead, the evidence suggests that Khai and Mai did in fact get married and
considered themselves married while living in Florida.
In Baumgarth v Baumgarth, 525 So. 2d 513, 514 (4th DCA 1988), Mona and Charles
divorced and agreed to a separation and property settlement agreement providing alimony and
child support. When Charles failed to make payments as required, Mona returned to court toenforce the settlement. /d. Charles argued that Mona was married to Griffith when he married
her, and therefore their marriage was a legal nullity. /d. He argued that the final dissolution of
marriage and separation agreement should be vacated. Jd. The court found that questions of fact
remained as to whether Mona’s alleged marriage to Griffith was a valid marriage, and whether
her marriage to Charles was valid. Jd. The court found that there was conflicting evidence and
inferences that could be drawn on the issues of the validity of the prior marriage, the later
marriage, and the knowledge of the parties. Jd. As such, summary judgment was premature and
the appellant was entitled to a trial of the issues. Jd.
In Anderson v. Anderson, 577 So. 2d 658, 659 (1st DCA 1991), Elizabeth and Michael
believed that Elizabeth’s previous marriage had been legally dissolved when they got married in
Georgia, but found out later that her previous marriage was dissolved nineteen days after she
married Michael. The court determined that Florida law makes all presumptions necessary to
make a marriage valid, including the capacity to contract, attach upon proof of a ceremonial
marriage and cohabitation by the parties under the belief that they were lawfully married. Jd. at
660. Both parties conceded that Georgia law recognizes common law marriage, and the court
determined that given the undisputed facts of this case, a valid common law marriage was
established under Georgia law. Jd.
Like Baumgarth, summary judgment here is premature. There is a strong presumption
that the marriage in Vietnam was valid. Defendant has failed to overcome its burden to prove
the marriage was invalid. Further, like Anderson, the court must make all presumptions
necessary to make the marriage valid, including consideration of the proof of the ceremonial
marriage and cohabitation by the parties under the belief that they were lawfully married.The presumption of valid marriage is consistent with legislative intent of the Florida
Wrongful Death Act to shift the losses resulting when wrongful death occurs from the survivors
of the decedent to the wrongdoers. $768.17, Florida Statutes. The Act defines survivors to
include the “decedent’s spouse.” §768.18(1), Florida Statutes. Section §768.17 mandates that the
Florida Wrongful Death Act shall be liberally construed to aid in accomplishing its intent of
shifting the losses of the survivors to the wrongdoers. Greenfield v. Daniels, 51 So. 3d 421, 426
(Fla. 2010). As alleged wrongdoers, Defendants must be held to the heavy burden of
overcoming the presumption of validity of Khai and Mai’s marriage.
d. Defendants’ Motion to Dismiss Khai Nguyen’s Claims for Fraud Upon the
Court Must Be Denied
“Courts ‘must always be mindful of the constitutional guarantee that the courts will be
available to every person for redress of injury.”” Jimenez v. Ortega, 179 So. 3d 483, 487 (Fla. Sth
DCA 2015) (quoting Granados v. Zehr, 979 So. 2d 1155, 1157 (Fla. 5th DCA 2008)). While a
trial court has the inherent authority to dismiss actions based on fraud and collusion, such
authority should be “cautiously and sparingly exercised and only upon the most blatant showing
of fraud, pretense, collusion or other similar wrongdoing.” Young v. Curgil, 358 So. 2d 58, 59
(Fla. 3d DCA 1979). “Because dismissal is the most severe of all possible sanctions, it should be
employed only in extreme circumstances.” Kornblum v. Schneider, 609 So. 2d 138, 139 (Fla. 4th
DCA 1992); Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998) (“because dismissal sounds
the death knell of a lawsuit courts must reserve such strong medicine for instances where the
defaulting party’s misconduct is correspondingly egregious”).
To rise to the requisite level for the most extreme sanction of dismissal with prejudice, a
party must have “sentiently set in motion some unconscionable scheme calculated to interfere
with the judicial system’s ability impartially to adjudicate a matter by improperly influencing thetrier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.”
Wenwei Sun v. Aviles, 53 So. 3d 1075, 1077 (Fla. 5th DCA 2010) (citing Aoude v. Mobil Oil
Corp., 892 F.2d 1115, 1118 (Ist Cir. 1989)). Misconduct such as poor recollection,
dissemblance, and even lying can in many cases be managed through cross-examination. /d. See
also Cross v. Pumpco, Inc., 910 So. 2d 324, 328 (Fla. 4th DCA 2005) (factual inconsistencies,
even false statements, are well managed through impeachment and traditional discovery
sanctions). “A mere testimonial discrepancy is ordinarily not enough; there must be clear and
convincing evidence of a scheme calculated to evade or stymie the discovery of facts central to
the case.” Wenwei, 53 So. 3d at 1077 (citations omitted). “[{A]llegations of inconsistency,
nondisclosure, and even falseness, are best resolved by allowing the parties to bring them to the
jury’s attention through cross examination or impeachment, rather than by dismissal of the entire
action.” Jd. (citations omitted).
“It is the moving party’s burden to establish by clear and convincing evidence that the
non-moving party has engaged in fraudulent conduct warranting dismissal.” Gilbert, 34 So. 3d at
776. “The clear and convincing evidence necessary to succeed on a motion to dismiss for fraud
on the court must demonstrate that the plaintiff ‘committed knowing deception intended to
prevent the defense from discovery essential to defending the claim.’” Cherubino v, Fenstersheib
& Fox, P.A., 925 So. 2d 1066, 1069 (Fla. 4th DCA 2006) (quoting Amato v. Intindola, 854 So.
2d 812, 814-15 (Fla. 4th DCA 2003)). The court should “consider the proper mix of factors and
carefully balance a policy favoring adjudication on the merits with competing policies to
maintain the integrity of the judicial system.” Cox, 706 So. 2d at 46.
Where the record does not reflect a party had prior knowledge that a statement or
document was false, dismissal of the entire claim is inappropriate. See Kornblum, 609 So. 2d at139-40. In Horjales, the court dismissed an action where a party admitted that he gave sworn
testimony material to liability in another proceeding exactly contrary to his sworn testimony in
the pending case so that he and another party could collect on an insurance policy. 291 So. 2d at
93. There, the parties had purposefully, and in concert, colluded to commit fraud to collect on an
insurance policy. /d.
In Jimenez, plaintiff made claims for pain and suffering and his inability to work as the
result of an injury. 179 So. 3d at 484. At three different depositions, plaintiff lied time and again
about the severity of his pain and his ability to function, even when presented with surveillance
video that directly contradicted his claims; plaintiff only admitted his lies at trial on cross-
examination. Jd. at 484- 86. The appellate court found that “Ortega’s fraud spanned the course of
seven years and three depositions. Even when confronted with video surveillance showing him
performing tasks he claimed he could not do, Ortega continued to perjure himself and exaggerate
his claims. His conduct cannot be countenanced.” Jd. at 488. The appellate court dismissed his
claims for pain and suffering and loss of work but allowed his other claims to remain because
they were more easily measured and not solely dependent on Ortega’s self-reporting. Jd. at 489.
See also Wenwei Sun, 53 So. 3d at 1077-78 (finding dismissal with prejudice was appropriate
sanction where calculated and widespread deceit of three claimants over a span of six years who
lied repeatedly, and made it virtually impossible for the appellees to defend against the damage
claims advanced).
Khai has made consistent statements about the events in Vietnam that led him to
conclude that he and Mai were validly married. He obtained an English translation of the official
certificate of marriage permission, willingly provided it when asked, and described the ensuing
ceremony. He alleged a valid marriage based on these facts. If the court or a jury ultimatelyconcludes the marriage is not valid under Vietnamese law, that conclusion does not make Khai’s
testimony false. There is nothing indicating Khai had any fraudulent purpose, nor any semblance
of a scheme to interfere with the judicial system’s ability to adjudicate this matter
Defendants cannot rely on court pleadings in other cases to prove fraud. Inconsistency
with other court pleadings creates an issue of judicial estoppel; not of fraud on the court. Judicial
estoppel normally requires mutuality of parties. Blumberg v. USAA Cas. Ins. Co., 790 So. 2d
1061, 1066-67 (Fla. 2001). Judicial estoppel is an equitable doctrine that is used to prevent
litigants from taking totally inconsistent positions in separate judicial proceedings involving the
same parties. Jd. The current Defendants were not parties to the estate or paternity actions.
Moreover, estoppel applies only when the act of taking inconsistent positions results in prejudice
to another party who relied on such conduct. See Fintak v. Fintak, 120 So. 3d 177, 185-86 (Fla.
2d DCA 2013) (citing Pelican Island Prop. Owners Ass'n, Inc. v. Murphy, 554 So. 2d 1179,
1181 (Fla. 2d DCA 1989)). “A party is permitted to plead in the alternative during litigation, and
it follows that a party may also take inconsistent actions in his or her own affairs as a mechanism
for “hedging the bets,” so long as that action does not result in prejudice to another party. /d.; see
also Fla. R. Civ. P. 1.110(g) (“A party may . . . state as many separate claims or defenses as that
party has, regardless of consistency and whether based on legal or equitable grounds or both.”).
Here, Defendants have not alleged any prejudice resulting from or reliance on the allegedly
inconsistent positions.
In Fintak v. Fintak, a party filed a petition for administration listing a trust as an asset, but
then later filed a pleading challenging the validity of the trust. 120 So. 3d at 181-82. Her
opponents in the latter action sought judicial estoppel. Jd. at 182. The court ruled the doctrine
inapplicable because “the practical effect of such a holding would lead to an untenable result.”Id. at 187. When the probate pleading was filed, no court had ruled on the trust’s validity and the
executor could not proceed as though a court had so determined; moreover, the defendants in the
trust litigation could not allege that they relied on, or that they changed position, to their
detriment based on the probate petition. Jd. The same is true here. No court has yet ruled on the
validity of Khai and Mai’s marriage.
If Khai committed a fraud on the probate court or the family court in the paternity action
by taking inconsistent positions, a motion should be filed in those proceedings to take
appropriate action. The probate court would be the appropriate court to enter sanctions if
warranted in those proceedings. This court must look to the pleadings in this action. In this
action, Khai has always admitted he did not have a marriage license in the U.S., and has
disclosed the documents and facts applicable to the ceremony in Vietnam.
Even if this court finds Khai made inconsistent or incorrect statements about the validity
of his marriage, this is not the type of false assertion that rises to the level of a sentient scheme to
defraud. In Bob Montgomery Real Estate v. Djokic, defendants claimed that plaintiff had
introduced two falsified listing agreements as exhibits to his amended complaint — in one case
using white-out to change dates. and in the other, forging the homeowner’s signature. 858 So, 2d
371, 372-73 (Fla. 4th DCA 2003). Plaintiff did not dispute the document, but testified at an
evidentiary hearing that he had no idea who made the alteration and forgery. /d. at 373. The trial
court based dismissal for fraud on the proffer of the documents as exhibits. /d. The appellate
court reversed, finding that the record reflected nothing but tenuous and conflicting evidence
about the claims of misconduct, and that there was not a “sufficient showing to conclude that
Montgomery sentiently set in motion some unconscionable scheme, and that the issues in
question were to be left for resolution by the jury.” (Internal quotations omitted.) /d. at 375. Seealso Granados v. Zehr, 979 So. 2d 1155, 1158 (Fla. 5th DCA 2008) (where claimant gave an
inconsistent answer about prior back pain and headache, the fact that she willingly disclosed the
treating physician that led defense counsel to discover earlier medical treatments that may have
involved back pain and headaches, the court found that even if her statements were false, the
evidence did not conclusively demonstrate she sentiently sought to set a scheme in motion to
defraud the court, and the defense was easily able to discover the discrepancy).
Here, unlike Horjales and Jimenez, there is no evidence of collusion or that Khai
sentiently set in motion a scheme to defraud the court. There are no repeated instances of lying,
deceit, a plan to defraud, or statements made under oath before the court. Khai’s depositions
show that he has always been candid and consistent on the facts about his marriage.
Khai has always admitted he did not have a marriage license in the U.S., and has
disclosed the documents and facts applicable to the ceremony in Vietnam. He has never stated
he had a Vietnamese marriage license. Thus, at worst, this case is more akin to Bob Montgomery
where any incorrect statement was not shown to be intentionally false or designed to mislead,
and factual inconsistencies could be addressed by vigorous cross-examination before a jury.
In the probate action relied on by Defendants, although the original Petition for
Administration lists Khai as a spouse, and the Amended Petition does not, this inconsistency,
like the one in the Bob Montgomery case, does not clearly and conclusively demonstrate he
sentiently sought to set a scheme in motion to defraud either the probate court, or this Court. The
defense was able to discover the discrepancy and question him about it. Unlike Horjales where
the parties had purposefully colluded to commit fraud, here there is no evidence showing any
knowledge on Khai’s part as to a fraudulent purpose in the probate pleadings. The law
established a presumption of marriage in his case, and once rebutted, it becomes an issue of fact.Pleading in the alternative is not fraud. Since Khai is the parent and natural guardian of two of
Mai’s three children, he is entitled to preference in appointment as Personal Representative with
or without status as the surviving spouse, and a determination of beneficiaries would be made
later in the probate proceeding. See §733.301, Florida Statutes. He is entitled to maintain a
wrongful death action in his capacity as personal representative, and to plead in the alternative to
present his claims both as surviving spouse and as natural guardian of the children. Fla. R. Civ.
P. 1.110(g) (“A party may . . . state as many separate claims or defenses as that party has,
regardless of consistency . . .).
Regarding the paternity action, the court should observe that Mai’s death occurred before
the application for birth certificate could be completed (in the usual course of events, it is
completed by the mother after birth) and that a custody dispute with one of Mai’s relatives made
it necessary for Khai to establish paternity. Without an American marriage license to grant him
automatic paternity status, he needed a court order to confirm his parental rights, and obtained it
by the only means possible in an uncomplicated manner.
There has been no demonstration of any design by Khai to mislead the court. Khai has
remained consistent in his belief that he and Mai were husband and wife because he obtained the
required certificate of marriage permission to effectuate the wedding ceremony at his family
home in Vietnam, and the ceremony was held in accordance with the certificate. He has never
claimed to have a marriage license. He has consistently admitted he was advised that an official
certificate would have to be issued in the United States. Since these same facts are relied on by
Defendants to prove he was not married, Defendants’ motions do not rely on false statements of
fact, but disagreement in the law regarding its application in this case.If the court were to conclude the marriage is not valid, that would be a conclusion of law
outside of Khai’s knowledge as a lay person. Defendants have not satisfied the clear and
convincing evidence standard required to demonstrate fraudulent statements so egregious that
dismissal with prejudice for fraud on the court is warranted.
WHEREFORE, Plaintiffs respectfully request that the Honorable Court deny Defendants’
Motion for Partial Summary Judgment or, Alternatively Motion to Dismiss Plaintiff, Khai
Nguyen’s Claim for Fraud Upon the Court.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed
electronically with the Clerk of Court, and served upon the following individuals via email
transmission on this 30" day of January 2017:
/s/ Maria D. Tejedor.
Maria D. Tejedor
FBN: 0500569
Diez-Arguelles & Tejedor, P.A.
505 North Mills Avenue
Orlando, Florida 32803
407-705-2880
Attorneys for Plaintiff
mail@theorlandolawyers.com
SERVICE LIST
Maria D. Tejedor, Esq. (FBN: 95834)
Diez-Arguelles & Tejedor, P.A.
505 N. Mills Avenue
Orlando, FL 32803
mail@theorlandolawyers.com
steven@theorlandolawyers.comCounsel for KHAI NGUYEN, 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
John W. Mauro, Esq. (FBN: 276634) and Carol J. Healy Glasgow, Esq. (FBN: 026239)
Billing, Cochran, Lyles, Mauro & Ramsey, P.A.
SunTrust Center, 6th Floor
515 E. Las Olas Blvd.
Fort Lauderdale, FL 33301
ftl-pleadings@belmr.com
Counsel for Plantation General Hospital and Dori Rathburn
Steven L. Lubell, Esq. (FBN: 2437) and Ariel D. Widlansky, Esq. (FBN: 37216)
Lubell& Rosen
200 S. Andrews Ave.
Fort Lauderdale, FL 33301
psr@lubellrosen.com; Amanda@lubellrosen.com
Counsel for Dr. Birman &Sunlife OB/GYN
M. Katherine Hunter, Esq. (FBN: 981877)
Chimpoulis, Hunter & Lynn, P.A.
150 S. Pine Island Road, Suite 510
Plantation, FL 33324
ahoney@chl-law.com; khunter@chl-law.com; cwieland@chl-law.com
Counsel for Dr. Santini & Florida United Radiology
Preview
Filing # 51794983 E-Filed 01/30/2017 01:14:52 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA 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, CASE NO. 14-14218(04) 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. { PLAINTIFF’S RESPONSE AND MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS PLANTATION GENERAL HOSPITAL AND DOR! THBUN’S MOTION FOR PARTIAL SUMMARY JUDGMENT, OR ALTERNATVELY, MOTION TO DISMISS CLAIMS FOR FRAUD UPON THE COURT Plaintiff, 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, files this Response and Memorandum of Law in Opposition to Defendants’ Motion for Partial Summary Judgment, or Alternatively Motion to Dismiss Plaintiff's Claim for Fraud Upon the Court, and in support thereof, states as follows: *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 1/30/2017 1:14:51 PM.****1. Plaintiffs’ causes of action are founded upon the negligence leading to the death of MAI TUYET NGUYEN (“Mai”), and birth injuries sustained by KADEN NGUYEN (“Kaden”) as a result of medical malpractice. 2. Mai was a nail technician and lived in Fort Lauderdale, Florida with Plaintiff, KHAI NGUYEN (“Khai”). The couple owned a home and lived together with Mai’s daughter, KRISTEN HUYNH (“Kristen”), who was born on August 3, 1999, and their joint natural child, KYLIE NGUYEN (“Kylie”), born on October 29, 2008. 3. In July 2012, Mai was pregnant with her third child, KADEN NGUYEN (“Kaden”). On the evening of July 25, 2012, Mai presented to Plantation General Hospital with signs of labor. Mai was at full term, but she had a life threatening and large blood clot in her uterus. She died the next day at Plantation General Hospital, at 9:41 a.m. on July 26, 2012. Mai was thirty-seven (37) years old. 4, Mai’s cause of death was the negligence of the Defendants in failing to report the large blood clot in her uterus, which was seen on a prenatal ultrasound done at Plantation General Hospital upon admission and due to the clot not being treated. The blood clot was in her uterus and was identified by the radiologist, however, due to a series of failures to communicate among the health providers, the blood clot was not reported to the treating obstetrician (“OBGYN”). Mai’s labor was induced with a non-FDA drug medication containing a black box warning that it was contraindicated in pregnancy and life threatening if given in the face of uterine or placental bleeding. The contraindicated drug was given to speed up Mai’s delivery. 5. After Mai received the drug, her condition deteriorated, and she suffered hours of vaginal bleeding, difficulty breathing, and significant drops in her blood pressure. The alarming findings were not timely conveyed to her OBGYN, in part due to shift changes by the nurses,and thus she died while laboring. During the two days Mai was at the hospital, she was never seen or evaluated by her attending OBGYN. Kaden was delivered by a hospital OBGYN via emergency C-section after a failed forceps delivery and after Mai had coded and was unresponsive. 6. Mai’s obituary refers to her husband Khai, and her three children, Kristen, Kylie, and Kaden. Mai’s death certificate also refers to Khai as her husband. 7. Both Mai and Khai were born in Vietnam. Khai moved to the United States when he was approximately twenty-one (21) years old. He met Mai in Fort Lauderdale in approximately 2006. The couple lived together for several years. In the summer of 2009, the couple traveled to Vietnam with family from Florida for their wedding. Khai and Mai held a marriage ceremony in Vietnam. (Deposition of Khai Nguyen on January 19, 2016 (“Deposition”) at 91: 12-17; Exhibit A, Affidavit of Dung Nguyen; Exhibit B, Affidavit of Hoa Le; Exhibit C, Affidavit of Khai Nguyen). 8. To hold a marriage ceremony in Vietnam, there must be a request to the city for permission to hold the ceremony. (Deposition at 92: 22-25; 98:13-23). Khai prepared the required certificate of marriage permission in order to effectuate their wedding ceremony at Khai’s family home in Lam Dong Da Lat City, Vietnam; permission was granted and the ceremony was held. (Exhibit C, Affidavit of Khai Nguyen, Certificate of Marriage Permission). The couple took photographs on their wedding day, as well as photographs on the trip to commemorate their wedding celebration. (Exhibit C, Affidavit of Khai Nguyen). It is the cultural norm in Vietnam for the bride to wear red. 9. During his deposition, Khai described the circumstance surrounding the wedding and subsequent request for the marriage certificate:. .. [W]e have both of the family get together, friends and stuff like that. So we make a big wedding thing, and after that, we — | went back to the city and asked for the marriage certificate. And they said, well, because I’m American citizen, and she’s [American] citizen, the only way that I can do is go back to where I live, which is in Florida here, to request for the marriage license. So we married. Everybody know it. So we went back here, but because of life is so busy and I did not have — well, because in Vietnam, most of the time, two people get together, at both sides of the family, friends, stuff like that, they know that we are married. That’s officially marry. But, you know, paper in Vietnam, it’s just not — just doesn’t mean anything at all. So pretty much figuring out that you know we commit to each other and we want to live together, and raise a family, have children, we just continue to live that way. So that’s why I never really did go to the courthouse to request for the marriage certificate. (Deposition at 93: 3-22) (emphasis added) 10. Khai assumed the permission to marry had been filed in Vietnam for purpose of securing a Vietnam marriage certificate. (Exhibit C, Affidavit of Khai Nguyen) 11. Khai admitted he does not have not have a marriage license issued by the government for marriage to Mai. (Deposition at 91). However, Khai was always under the impression that he and Mai were legally married in Vietnam. Khai’s deposition testimony shows that he believed he had done all that was required to consider the marriage legal. For example, when discussing why he had the certificate of marriage permission translated to English, Khai stated, “[i]f I show anybody this [Vietnam certificate of marriage permission], they wouldn’t know what I’m talking about . . . so 1 want to make sure that what I have in [English].” (Deposition at 99: 23-24; 100:1). Khai later stated that he understood that the certificate meant, “they stating strongly that — recommend to me to, you know, go back to the State and take marriage license. But to them, this is — in Vietnam this is legally married.” (Deposition at 100: 23-25; 101:1) (emphasis added). Despite the recommendation that Khai and Mai register theirmarriage in the United States, Khai was under the impression that the certificate allowing the marriage ceremony, and the ceremony itself, was enough to be considered married in Vietnam. 12, After the wedding, Mai and Khai built a life together. The couple returned to their home in Fort Lauderdale, Florida, and they lived together as husband and wife. (Exhibit C, Affidavit of Khai Nguyen). They never separated or divorced, and they represented to the public that they were husband and wife. They shared a loving and committed relationship, and they were devoted parents to their children. Khai now has custody and control of their minor children, Kylie and Kaden. 13. Khai believed that “knowing that we are family and we have commitment and we have done pretty much of whatever in Vietnam, but when we came to the State, we start heading to work and, you know, we work days and week[end]s, and we have very minimal time. So we just thinking that, you know, if we are family now, it’s not important in this area where we have — we focus into making money to pay bills.” (Deposition at 104: 5-12). Khai further stated, “being together and established family is the most important thing . . .” (Deposition at 104: 20- 21). The couple did not consider that Mai would suddenly die in childbirth. 14. Based on this evidence, Florida law creates a strong presumption that Khai and Mai’s marriage ceremony created a legal marriage in Vietnam. There is no evidence, other than a lack of a formal marriage certificate, to prove that Khai and Mai were not legally married in Vietnam. 15. Khai has not committed fraud on this court at any time. His testimony has been truthful in regards to his relationship with Mai. He testified to the following undisputed facts: 1. He lived with Mai before marriage. 2. They traveled to Vietnam for a wedding ceremony.3. They applied for and obtained Vietnam government permission to have a wedding ceremony. 4. A wedding ceremony was had in Vietnam. 5. He held Mai out to the public as his spouse and they lived as husband and wife at all times. 6. The couple was never separated or divorced. 7. He does not have a government issued official marriage license in Vietnam. 8. He does not have a Government issued marriage license in the U.S. 9. He is the father of Mai’s 2 children Kaley and Kaden. 10. He financially supports and maintains full custody of Kaley and Kaden today. The law in Florida in this case creates a favorable presumption of marriage. It is the Defendants burden to overcome that presumption and they have failed to present any such evidence. In the event the presumption is rebutted, the issue of whether the couple were husband and wife then becomes an issue of fact for the jury to determine. The law in support of the same is provided below. The Defendants motions should be denied. A pleading filed by a probate lawyer in a different proceeding cannot be used in support of a motion to strike a pleading before a different tribunal. It was not fraud to allege in the probate proceeding that Mai was his spouse as there is a legal presumption in favor of the same. The pleading was filed and prepared by a lawyer and alternative pleading is a time honored and well established practice. Any motions for fraud by the Defendants that arise from a probate filing need to be filed and heard by the probate court and sanctions if any imposed by that court. Filings in the probate wherein pleading states Mai was his spouse serve no probative value and no bearing before issues in this court.MEMORANDUM OF LAW I. Plaintiffs’ Response in Opposition to Defendants Motion for Partial Summary Judgment a. Summary Judgment Standard Summary judgment is designed to test the sufficiency of evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings. Florida Bar v. Greene, 926 So. 2d 1195 (Fla. 2006). Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Voort v. Universal Prop. & Cas. Ins. Co., 127 So. 3d 536, 538 (Fla. 4th DCA 2012) (citing McCabe v. Fla. Power & Light Co., 68 So. 3d 995, 997 (Fla. 4th DCA 2011)). Summary judgment may be granted only where the facts are so crystallized that nothing remains but questions of law. Id. It is the moving party’s burden to conclusively prove the non-existence of a material fact. Voort, 127 So. 3d at 538 (citing Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966); Albelo v. S. Bell, 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996)). Further, the court must draw every possible inference arising from the evidence in favor of the nonmoving party. Voort, 127 So. 3d at 538 (citing Schooner Oaks Ltd. Co. v. Schooner Oaks Condo. Ass'n, Inc., 776 So. 2d 304, 306 (Fla. 4th DCA 2000); Cont’! Concrete, Inc. v. Lakes at La Paz Ill Ltd. P’ship, 758 So. 2d 1214, 1217 (Fla. 4th DCA 2000); McDonald y. Fla. Dep't of Transp., 655 So. 2d 1164, 1168 (Fla. 4th DCA. 1995) (“If the evidence raises any issues of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by the jury.”)). To defeat a motion for summary judgment, the nonmoving party “must present evidence, not simply legal argument,demonstrating the existence of a disputed issue of material fact.” Woodruff v. Government Employees Ins. Co., 669 So.2d 1114 (Fla. 1st DCA 1996). b. The Court Must Recognize the Presumption in Favor of Valid Marriage. The Court is required to presume that Khai and Mai were legally married until Defendants present sufficient proof to overcome the presumption; then, the validity of the marriage becomes an issue of fact. See Cobo v. Sierralta, 13 So. 3d 493, 497 (Fla. 3d DCA 2009); see also Stewart v. Hampton, 506 So. 2d 70, 71 (Fla. 5th DCA 1987) (concluding that “[o]nce a marriage is shown to have been ceremonially entered into, it is presumed to be legal and valid,” and then the party attacking the legality of such a marriage bears the burden of rebutting this presumption); Grace v. Grace, 162 So. 2d 314, 317 (Fla. Ist DCA 1964) (“It is an elementary principle of domestic relations law that a marriage, once shown to have been ceremonially entered into . . . , is presumed to be legal and valid” and that “the burden of proving the continuance of the previous marriage and the invalidity of the subsequent marriage is on the party attacking the validity of the latter”); Teel v. Nolen Brown Motors, Inc., 93 So. 2d 874, 876 (Fla. 1957) (recognizing that “[a] presumption exists in favor of the validity of the last marriage,” which is “one of the strongest presumptions known to the law,” such that “[t]he burden of rebutting it rests upon the party attacking the legality of the . . . marriage”); Jn re Estate of Beacher, 177 So. 2d 838, 839-40 (Fla. 3d DCA 1965) (recognizing that once prima facie evidence of a marriage is presented, the party asserting the illegality of that marriage bears the burden of proving that assertion). Defendants failed to sustain their burden. The “presumption” of the existence of a valid marriage, recognized as one of the strongest of all legal presumptions, arises out of the concern of all civilized societies over thelegitimacy of children, the descent and distribution of property and the sanctity of marriage as a keystone of government. Jn re Estate of Marden, 355 So. 2d 121, 126 (Fla. 3d DCA 1978). This presumption grows out of long and continuous cohabitation, the establishment and maintenance of a home and family, recognition by the public generally together with the friends and associates, that the man and woman are husband and wife. Jd. “In the probate of estates, the surviving spouse is not required to go to the courthouse with her marriage license in hand to be recognized as the surviving spouse.” Jd. Rather, the law presumes that a valid marriage does exist and “he who properly raises such issue has a great burden to carry even some courts have held of proving a negative.” Jd. The strength of the presumption increases with the lapse of time through which the parties are cohabiting as husband and wife. Lambertini v. Lambertini, 655 So. 2d 142, 143 (Fla. 3d DCA 1995). Khai and Mai lived together as husband and wife following their marriage ceremony in Vietnam. They shared a home, shared vehicles, worked together, and had children together. (Exhibit C, Affidavit of Khai Nguyen). Once they started living together, and subsequently got married, they never lived apart, and they represented to the public that they were living together as husband and wife. As such, Defendants have failed to offer any proof to overcome the presumption that Khai and Mai lived together as husband and wife. c. Defendants have failed to prove that the marriage was invalid under Vietnamese law. The basic principle of comity of marriage recognizes that a valid marriage under the law of a foreign nation will be recognized as such in the United States. American Airlines, Inc. v. Mejia, 766 So. 2d 305, n.5 (Fla. 4th DCA 2000) (citing Montano v. Montano, 520 So. 2d 52, 52-53 (Fla. 3d DCA 1988)). Moreover, although Florida no longer recognizes the validity of common law marriages contracted in this state after 1968, it will respect a common-law marriage validly created in a jurisdiction recognizing such marriages. Jd. (citing §741.211, Florida Statutes (1999); Anderson y. Anderson, 577 So. 2d 658, 660 (Fla. Ist DCA 1991)). See also Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. 3d DCA 1984) (trial court did not err in finding Bolivia marriage valid, pursuant to Bolivian law); Johnson v. Lincoln Square Props., Inc., 57\ So. 2d 541, 542-43 (Fla. 4th DCA 1990); Goldman v. Dithrich, 131 Fla. 408, 179 So. 715 (Fla. 1938); Young v. Viruet de Garcia, 172 So. 2d 243 (Fla. 34 DCA 1965) (looking to the laws of Puerto Rico to determine the validity of the marriage that was asserted). In Vietnam, there are three conditions to getting married. “A man and a woman wishing to marry each other must satisfy the following: (1) the man has reached the age of twenty or over and the woman has reached the age of eighteen or over; (2) the marriage is voluntarily decided by the man and the woman; neither partner is allowed to force or deceive the other; nobody is allowed to force or obstruct their marriage; and (3) the marriage does not fall into one of the circumstances where marriage is forbidden as prescribed in Article 10 of this Law.” Vietnam Marriage and Family Law 2014, Vietnam Law in English (June 26, 2014), available at http://vietnamlawenglish.blogspot.com/2014/06/vietnam-marriage-and-family-law-2014.html. Khai and Mai met all conditions to marry. Khai and Mai also do not fall within any of the circumstances where marriage is forbidden. /d. Although Vietnam does not recognize marriage by a man and a woman who failed to register their marriage, there remains an issue of fact as to why Mai and Khai were not permitted to register their marriage in Vietnam, as they met all the requirements of getting married.' Currently there is no evidence to rebut Khai’s claim that “in Vietnam this is legally married.” (Deposition at 100: 23-25; 101: 1) (emphasis added). 1 The U.S. State Department’s website notes the difficulty of obtaining proper documentation in Vietnam,Further, under section §741.10, Florida Statutes, When any marriage is or has been solemnized by any of the persons named in s. 741.07, and such person has not made a certificate thereof on the marriage license as required by s. 741.08, or when the marriage license has been lost, or when by reason of death or other cause the proper certificate cannot be obtained, the marriage may be proved by affidavit before any officer authorized to administer oaths made by two competent witnesses who were present and saw the marriage ceremony performed, which affidavit may be filed and recorded in the office of the county court judge or clerk of the circuit court from which the marriage license issued, with the same force and effect as in cases in which the proper certificate has been made, returned and recorded. (emphasis added). Here, Plaintiffs have filed the Affidavits of Hoa Le and Dung Nguyen, both of which are competent witnesses who were present and saw the marriage ceremony performed between Mai and Khai. Although the marriage ceremony occurred in Vietnam and Mai is now deceased, the affidavits allow the marriage to fall within section 741.10, Florida Statutes, particularly considering the strong presumption in favor of marriage. Defendants have failed to present summary judgment evidence pertaining to Vietnamese law. In Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. 3d DCA 1984), the court suggested that expert testimony as to foreign law would be necessary to show that the marriage was not valid, citing the general presumption in favor of marriage validity. Moreover, “[i]t is presumed that an official performing a marriage service — whether in a foreign or domestic jurisdiction — would not have performed the service if there was any known impediment to the marriage.” Jd. at 1160. As such, Defendants should have presented expert testimony as summary judgment evidence to show that the document approving the marriage ceremony itself was improper. stating “Civil procedures in Vietnam, such as marriage, divorce, documenting the birth of a child, and issuance of death certificates, are highly bureaucratic and can be slow . . . Enforcement of civil orders is frequently difficult or non-existent.” Vietnam, U.S. Department of State, https://travel.state.gov/content/passports/en/country/vietnam.html (last visited January 23, 2017).Defendants base their argument on a Texas divorce case, Nguyen v. Nguyen, 355 S.W.3d 82 (Tex. App. 2011). The ruling in that case should not be followed here because it was based on the presented evidence of Vietnamese law and on the specific facts presented in that case, which have no bearing here. At most, it constitutes an interpretation of Texas law. The dispute in that case was as to the validity of a husband’s first marriage, and how that affected his second marriage. /d. at 84. He had first married in Vietnam, and afterwards returned to Texas and remarried. Jd. at 84-85. The Texas court found, consistent with comparable Florida law, that the party seeking to render the present marriage invalid bears the burden of proof. /d. at 88. The only documentation of the purported first marriage was an “Application for Certification” of the wedding ceremony, but there was conflicting evidence as to any ceremony. However, the court found evidence of a valid and continuing prior marriage. Jd. at 91-92. Here, there is no prior marriage issue, and Khai and Mai had both the approved application and a formal ceremony. Defendants claim that in the Texas Nguyen case, the “Application of Certification” and testimony of the parties that the wedding occurred was not enough to prove a valid marriage under Vietnamese law (D’s MSJ at 9). However, the court did consider the testimony of the parties, and considered other evidence showing that the ceremony never occurred. Here, there is no evidence to suggest that the ceremony did not occur. Moreover, Plaintiffs have offered photographs of the marriage ceremony and affidavits of Khai, Dung Nguyen, and Hoa Le, all of whom were present at the marriage ceremony. The other cases relied on by Defendants are also distinguishable. In American Airlines, Inc. v. Mejia, 766 So. 2d 305, 306 (4th DCA 2000), Carmen, a flight attendant, passed away and her long-time partner, Libardo, attempted to claim he was a surviving spouse under the Florida Wrongful Death Act. Libardo acknowledged that he and Carmen never participated in a formal,civil, or religious ceremony of marriage, but that they were common law married under Columbian law. /d. Both sides offered the relevant Colombian law, along with translations by experts in its jurisprudence. Jd. at 307. After considering the relevant Columbian law, the court decided that the Columbian law for a “union” was so vastly different from the concept of “matrimony,” that under Florida principles, Carmen and Libardo were not spouses of each other. Id. at 309. Here, like Mejia, the court should consider the relevant Vietnamese law to determine the validity of the marriage. Yet, Defendants have not offered sufficient evidence to dispute the marriage in Vietnam. In Young v. De Garcia, 172 So. 2d 243, 244 (3d DCA 1965) the court considered whether the Plaintiff may be considered a widow when: (1) she and the decedent were never ceremonially married; (2) she and decedent never lived together in Florida; and (3) she and decedent lived together only in Puerto Rico, which does not recognize common law marriage. The court decided that since the alleged marriage was invalid where celebrated, it is similarly invalid in Florida. Jd. at 244. The court further considered that the couple never had a ceremonial marriage, and the record was replete with evidence to the effect that plaintiff and decedent intended to get married but had not gotten around to it. Jd. Again, this case is distinguishable. Unlike the couple in De Garcia, Khai and Mai were ceremonially married in Vietnam and did live together in Florida. Further, there is no evidence to suggest that Khai and Mai intended to get married, but “had not gotten around to it.” Instead, the evidence suggests that Khai and Mai did in fact get married and considered themselves married while living in Florida. In Baumgarth v Baumgarth, 525 So. 2d 513, 514 (4th DCA 1988), Mona and Charles divorced and agreed to a separation and property settlement agreement providing alimony and child support. When Charles failed to make payments as required, Mona returned to court toenforce the settlement. /d. Charles argued that Mona was married to Griffith when he married her, and therefore their marriage was a legal nullity. /d. He argued that the final dissolution of marriage and separation agreement should be vacated. Jd. The court found that questions of fact remained as to whether Mona’s alleged marriage to Griffith was a valid marriage, and whether her marriage to Charles was valid. Jd. The court found that there was conflicting evidence and inferences that could be drawn on the issues of the validity of the prior marriage, the later marriage, and the knowledge of the parties. Jd. As such, summary judgment was premature and the appellant was entitled to a trial of the issues. Jd. In Anderson v. Anderson, 577 So. 2d 658, 659 (1st DCA 1991), Elizabeth and Michael believed that Elizabeth’s previous marriage had been legally dissolved when they got married in Georgia, but found out later that her previous marriage was dissolved nineteen days after she married Michael. The court determined that Florida law makes all presumptions necessary to make a marriage valid, including the capacity to contract, attach upon proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married. Jd. at 660. Both parties conceded that Georgia law recognizes common law marriage, and the court determined that given the undisputed facts of this case, a valid common law marriage was established under Georgia law. Jd. Like Baumgarth, summary judgment here is premature. There is a strong presumption that the marriage in Vietnam was valid. Defendant has failed to overcome its burden to prove the marriage was invalid. Further, like Anderson, the court must make all presumptions necessary to make the marriage valid, including consideration of the proof of the ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married.The presumption of valid marriage is consistent with legislative intent of the Florida Wrongful Death Act to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoers. $768.17, Florida Statutes. The Act defines survivors to include the “decedent’s spouse.” §768.18(1), Florida Statutes. Section §768.17 mandates that the Florida Wrongful Death Act shall be liberally construed to aid in accomplishing its intent of shifting the losses of the survivors to the wrongdoers. Greenfield v. Daniels, 51 So. 3d 421, 426 (Fla. 2010). As alleged wrongdoers, Defendants must be held to the heavy burden of overcoming the presumption of validity of Khai and Mai’s marriage. d. Defendants’ Motion to Dismiss Khai Nguyen’s Claims for Fraud Upon the Court Must Be Denied “Courts ‘must always be mindful of the constitutional guarantee that the courts will be available to every person for redress of injury.”” Jimenez v. Ortega, 179 So. 3d 483, 487 (Fla. Sth DCA 2015) (quoting Granados v. Zehr, 979 So. 2d 1155, 1157 (Fla. 5th DCA 2008)). While a trial court has the inherent authority to dismiss actions based on fraud and collusion, such authority should be “cautiously and sparingly exercised and only upon the most blatant showing of fraud, pretense, collusion or other similar wrongdoing.” Young v. Curgil, 358 So. 2d 58, 59 (Fla. 3d DCA 1979). “Because dismissal is the most severe of all possible sanctions, it should be employed only in extreme circumstances.” Kornblum v. Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992); Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998) (“because dismissal sounds the death knell of a lawsuit courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious”). To rise to the requisite level for the most extreme sanction of dismissal with prejudice, a party must have “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing thetrier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Wenwei Sun v. Aviles, 53 So. 3d 1075, 1077 (Fla. 5th DCA 2010) (citing Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (Ist Cir. 1989)). Misconduct such as poor recollection, dissemblance, and even lying can in many cases be managed through cross-examination. /d. See also Cross v. Pumpco, Inc., 910 So. 2d 324, 328 (Fla. 4th DCA 2005) (factual inconsistencies, even false statements, are well managed through impeachment and traditional discovery sanctions). “A mere testimonial discrepancy is ordinarily not enough; there must be clear and convincing evidence of a scheme calculated to evade or stymie the discovery of facts central to the case.” Wenwei, 53 So. 3d at 1077 (citations omitted). “[{A]llegations of inconsistency, nondisclosure, and even falseness, are best resolved by allowing the parties to bring them to the jury’s attention through cross examination or impeachment, rather than by dismissal of the entire action.” Jd. (citations omitted). “It is the moving party’s burden to establish by clear and convincing evidence that the non-moving party has engaged in fraudulent conduct warranting dismissal.” Gilbert, 34 So. 3d at 776. “The clear and convincing evidence necessary to succeed on a motion to dismiss for fraud on the court must demonstrate that the plaintiff ‘committed knowing deception intended to prevent the defense from discovery essential to defending the claim.’” Cherubino v, Fenstersheib & Fox, P.A., 925 So. 2d 1066, 1069 (Fla. 4th DCA 2006) (quoting Amato v. Intindola, 854 So. 2d 812, 814-15 (Fla. 4th DCA 2003)). The court should “consider the proper mix of factors and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system.” Cox, 706 So. 2d at 46. Where the record does not reflect a party had prior knowledge that a statement or document was false, dismissal of the entire claim is inappropriate. See Kornblum, 609 So. 2d at139-40. In Horjales, the court dismissed an action where a party admitted that he gave sworn testimony material to liability in another proceeding exactly contrary to his sworn testimony in the pending case so that he and another party could collect on an insurance policy. 291 So. 2d at 93. There, the parties had purposefully, and in concert, colluded to commit fraud to collect on an insurance policy. /d. In Jimenez, plaintiff made claims for pain and suffering and his inability to work as the result of an injury. 179 So. 3d at 484. At three different depositions, plaintiff lied time and again about the severity of his pain and his ability to function, even when presented with surveillance video that directly contradicted his claims; plaintiff only admitted his lies at trial on cross- examination. Jd. at 484- 86. The appellate court found that “Ortega’s fraud spanned the course of seven years and three depositions. Even when confronted with video surveillance showing him performing tasks he claimed he could not do, Ortega continued to perjure himself and exaggerate his claims. His conduct cannot be countenanced.” Jd. at 488. The appellate court dismissed his claims for pain and suffering and loss of work but allowed his other claims to remain because they were more easily measured and not solely dependent on Ortega’s self-reporting. Jd. at 489. See also Wenwei Sun, 53 So. 3d at 1077-78 (finding dismissal with prejudice was appropriate sanction where calculated and widespread deceit of three claimants over a span of six years who lied repeatedly, and made it virtually impossible for the appellees to defend against the damage claims advanced). Khai has made consistent statements about the events in Vietnam that led him to conclude that he and Mai were validly married. He obtained an English translation of the official certificate of marriage permission, willingly provided it when asked, and described the ensuing ceremony. He alleged a valid marriage based on these facts. If the court or a jury ultimatelyconcludes the marriage is not valid under Vietnamese law, that conclusion does not make Khai’s testimony false. There is nothing indicating Khai had any fraudulent purpose, nor any semblance of a scheme to interfere with the judicial system’s ability to adjudicate this matter Defendants cannot rely on court pleadings in other cases to prove fraud. Inconsistency with other court pleadings creates an issue of judicial estoppel; not of fraud on the court. Judicial estoppel normally requires mutuality of parties. Blumberg v. USAA Cas. Ins. Co., 790 So. 2d 1061, 1066-67 (Fla. 2001). Judicial estoppel is an equitable doctrine that is used to prevent litigants from taking totally inconsistent positions in separate judicial proceedings involving the same parties. Jd. The current Defendants were not parties to the estate or paternity actions. Moreover, estoppel applies only when the act of taking inconsistent positions results in prejudice to another party who relied on such conduct. See Fintak v. Fintak, 120 So. 3d 177, 185-86 (Fla. 2d DCA 2013) (citing Pelican Island Prop. Owners Ass'n, Inc. v. Murphy, 554 So. 2d 1179, 1181 (Fla. 2d DCA 1989)). “A party is permitted to plead in the alternative during litigation, and it follows that a party may also take inconsistent actions in his or her own affairs as a mechanism for “hedging the bets,” so long as that action does not result in prejudice to another party. /d.; see also Fla. R. Civ. P. 1.110(g) (“A party may . . . state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both.”). Here, Defendants have not alleged any prejudice resulting from or reliance on the allegedly inconsistent positions. In Fintak v. Fintak, a party filed a petition for administration listing a trust as an asset, but then later filed a pleading challenging the validity of the trust. 120 So. 3d at 181-82. Her opponents in the latter action sought judicial estoppel. Jd. at 182. The court ruled the doctrine inapplicable because “the practical effect of such a holding would lead to an untenable result.”Id. at 187. When the probate pleading was filed, no court had ruled on the trust’s validity and the executor could not proceed as though a court had so determined; moreover, the defendants in the trust litigation could not allege that they relied on, or that they changed position, to their detriment based on the probate petition. Jd. The same is true here. No court has yet ruled on the validity of Khai and Mai’s marriage. If Khai committed a fraud on the probate court or the family court in the paternity action by taking inconsistent positions, a motion should be filed in those proceedings to take appropriate action. The probate court would be the appropriate court to enter sanctions if warranted in those proceedings. This court must look to the pleadings in this action. In this action, Khai has always admitted he did not have a marriage license in the U.S., and has disclosed the documents and facts applicable to the ceremony in Vietnam. Even if this court finds Khai made inconsistent or incorrect statements about the validity of his marriage, this is not the type of false assertion that rises to the level of a sentient scheme to defraud. In Bob Montgomery Real Estate v. Djokic, defendants claimed that plaintiff had introduced two falsified listing agreements as exhibits to his amended complaint — in one case using white-out to change dates. and in the other, forging the homeowner’s signature. 858 So, 2d 371, 372-73 (Fla. 4th DCA 2003). Plaintiff did not dispute the document, but testified at an evidentiary hearing that he had no idea who made the alteration and forgery. /d. at 373. The trial court based dismissal for fraud on the proffer of the documents as exhibits. /d. The appellate court reversed, finding that the record reflected nothing but tenuous and conflicting evidence about the claims of misconduct, and that there was not a “sufficient showing to conclude that Montgomery sentiently set in motion some unconscionable scheme, and that the issues in question were to be left for resolution by the jury.” (Internal quotations omitted.) /d. at 375. Seealso Granados v. Zehr, 979 So. 2d 1155, 1158 (Fla. 5th DCA 2008) (where claimant gave an inconsistent answer about prior back pain and headache, the fact that she willingly disclosed the treating physician that led defense counsel to discover earlier medical treatments that may have involved back pain and headaches, the court found that even if her statements were false, the evidence did not conclusively demonstrate she sentiently sought to set a scheme in motion to defraud the court, and the defense was easily able to discover the discrepancy). Here, unlike Horjales and Jimenez, there is no evidence of collusion or that Khai sentiently set in motion a scheme to defraud the court. There are no repeated instances of lying, deceit, a plan to defraud, or statements made under oath before the court. Khai’s depositions show that he has always been candid and consistent on the facts about his marriage. Khai has always admitted he did not have a marriage license in the U.S., and has disclosed the documents and facts applicable to the ceremony in Vietnam. He has never stated he had a Vietnamese marriage license. Thus, at worst, this case is more akin to Bob Montgomery where any incorrect statement was not shown to be intentionally false or designed to mislead, and factual inconsistencies could be addressed by vigorous cross-examination before a jury. In the probate action relied on by Defendants, although the original Petition for Administration lists Khai as a spouse, and the Amended Petition does not, this inconsistency, like the one in the Bob Montgomery case, does not clearly and conclusively demonstrate he sentiently sought to set a scheme in motion to defraud either the probate court, or this Court. The defense was able to discover the discrepancy and question him about it. Unlike Horjales where the parties had purposefully colluded to commit fraud, here there is no evidence showing any knowledge on Khai’s part as to a fraudulent purpose in the probate pleadings. The law established a presumption of marriage in his case, and once rebutted, it becomes an issue of fact.Pleading in the alternative is not fraud. Since Khai is the parent and natural guardian of two of Mai’s three children, he is entitled to preference in appointment as Personal Representative with or without status as the surviving spouse, and a determination of beneficiaries would be made later in the probate proceeding. See §733.301, Florida Statutes. He is entitled to maintain a wrongful death action in his capacity as personal representative, and to plead in the alternative to present his claims both as surviving spouse and as natural guardian of the children. Fla. R. Civ. P. 1.110(g) (“A party may . . . state as many separate claims or defenses as that party has, regardless of consistency . . .). Regarding the paternity action, the court should observe that Mai’s death occurred before the application for birth certificate could be completed (in the usual course of events, it is completed by the mother after birth) and that a custody dispute with one of Mai’s relatives made it necessary for Khai to establish paternity. Without an American marriage license to grant him automatic paternity status, he needed a court order to confirm his parental rights, and obtained it by the only means possible in an uncomplicated manner. There has been no demonstration of any design by Khai to mislead the court. Khai has remained consistent in his belief that he and Mai were husband and wife because he obtained the required certificate of marriage permission to effectuate the wedding ceremony at his family home in Vietnam, and the ceremony was held in accordance with the certificate. He has never claimed to have a marriage license. He has consistently admitted he was advised that an official certificate would have to be issued in the United States. Since these same facts are relied on by Defendants to prove he was not married, Defendants’ motions do not rely on false statements of fact, but disagreement in the law regarding its application in this case.If the court were to conclude the marriage is not valid, that would be a conclusion of law outside of Khai’s knowledge as a lay person. Defendants have not satisfied the clear and convincing evidence standard required to demonstrate fraudulent statements so egregious that dismissal with prejudice for fraud on the court is warranted. WHEREFORE, Plaintiffs respectfully request that the Honorable Court deny Defendants’ Motion for Partial Summary Judgment or, Alternatively Motion to Dismiss Plaintiff, Khai Nguyen’s Claim for Fraud Upon the Court. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed electronically with the Clerk of Court, and served upon the following individuals via email transmission on this 30" day of January 2017: /s/ Maria D. Tejedor. Maria D. Tejedor FBN: 0500569 Diez-Arguelles & Tejedor, P.A. 505 North Mills Avenue Orlando, Florida 32803 407-705-2880 Attorneys for Plaintiff mail@theorlandolawyers.com SERVICE LIST Maria D. Tejedor, Esq. (FBN: 95834) Diez-Arguelles & Tejedor, P.A. 505 N. Mills Avenue Orlando, FL 32803 mail@theorlandolawyers.com steven@theorlandolawyers.comCounsel for KHAI NGUYEN, 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 John W. Mauro, Esq. (FBN: 276634) and Carol J. Healy Glasgow, Esq. (FBN: 026239) Billing, Cochran, Lyles, Mauro & Ramsey, P.A. SunTrust Center, 6th Floor 515 E. Las Olas Blvd. Fort Lauderdale, FL 33301 ftl-pleadings@belmr.com Counsel for Plantation General Hospital and Dori Rathburn Steven L. Lubell, Esq. (FBN: 2437) and Ariel D. Widlansky, Esq. (FBN: 37216) Lubell& Rosen 200 S. Andrews Ave. Fort Lauderdale, FL 33301 psr@lubellrosen.com; Amanda@lubellrosen.com Counsel for Dr. Birman &Sunlife OB/GYN M. Katherine Hunter, Esq. (FBN: 981877) Chimpoulis, Hunter & Lynn, P.A. 150 S. Pine Island Road, Suite 510 Plantation, FL 33324 ahoney@chl-law.com; khunter@chl-law.com; cwieland@chl-law.com Counsel for Dr. Santini & Florida United Radiology