NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM A.D., 2005 ** ** Appellant, v. RICHARD MOORE, and MELISSA KAYE MOORE, Appellees. ** ** ** ** LOWER TRIBUNAL NO. 01-22015 CASE NO. 3D03-1459
BARBARA RIOS,
Opinion filed February 16, 2005. An Appeal from the Circuit Court for Miami-Dade County, Robert N. Scola, Jr., Judge. Neufeld, Kleinberg & Pinkiert, and David Kleinberg, for appellant. Frances F. Guasch, and Luis E. Ordonez, for appellees. Before COPE, FLETCHER, and RAMIREZ, JJ. RAMIREZ, J. Barbara Rios appeals the trial court’s dismissal with prejudice of her personal injury case. We reverse, holding that Rios’s actions
did not rise to the level of fraud on the court.
On
June
2,
2001,
while
walking Rios
across was
the
12th by an
Street
and
Washington
Avenue
intersection,
struck
automobile
driven by Melissa Moore, flipping her in the air and causing her to land on her back. Rios suffered head contusions, bleeding and
lacerations to her head and lacerations to her back. She was taken to the hospital, where she complained of injuries to her back, neck and head. Rios received medical treatment for her back and neck and went to physical therapy two to three times per week. her back and neck. Rios recover sued Moore for and the Richard injuries Moore she as owner of in the the car, to She had an MRI of
damages
sustained
accident.
During discovery Rios verified twice, under oath, that she sustained injuries to her upper back, neck and head as a result of the subject accident. At her deposition, she confirmed that she continued to Due to
have pain to her neck, shoulder and back “almost every day.” her severe back pain, Rios discontinued going to the gym. experienced accident. depression. numbness She took and pain tingling in both for hands back since pain
Rios also the and car her
medication
her
In her interrogatories, Rios revealed that she had been in a prior accident in May 2000, where she sustained a minor injury to her left shoulder. In her deposition testimony, Rios stated that she did
not remember the name of the doctor who treated her after the May
2
2000 accident, but she could obtain the doctor’s name for defense counsel. The answers Moores to filed a motion to dismiss of for fraud, attaching and
interrogatories,
portions
Rios’s
deposition,
various medical records.
Rios responded, attaching her affidavit, Rios
along with other medical records and her complete deposition. alleged that the omissions did not support dismissal.
She suggested
that her failure to provide certain information was not intentional but was due to the head injury she suffered from the accident in this case which led to her memory loss. In addition, at the hearing on
the motion to dismiss, Rios’s attorneys argued that she was only claiming that this accident resulted in a head injury, thus any
failure to reveal prior neck or back pain was irrelevant. court dismissed her action, and this appeal followed.
The trial
Rios contends that the trial court abused its discretion in dismissing her case as she disclosed her prior treatment and did not prevent discovery. The Moores allege that Rios intentionally misled We review the trial court’s
the court and provided false testimony.
dismissal of Rios’s action under an abuse of discretion standard of review. See Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983).
Because we find merit to Rios’s position, we hold that the trial court abused its discretion in dismissing her claim, as her actions did not rise to the level of fraud on the court.
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A trial court has the authority to dismiss actions based on fraud and collusion, as well as to strike sham pleadings. v. Curgil, 358 So. 2d 58 (Fla. 3d DCA 1978). See Young
However, this power
should be “cautiously and sparingly exercised and only upon the most blatant showing of fraud, pretense, collusion or other similar
wrongdoing.” Id. at 59.
Here, Rios voluntarily disclosed her prior
accident to the Moores and agreed to produce the name of her treating physician. A review of the record indicates that Rios’s explanation,
along with the complete transcript of relevant testimony and medical records, indicates that she committed no fraud. Her actions were a
far cry from the plaintiff’s actions in Savino v. Florida Drive In Theatre Management, Inc., 697 So. 2d 1011 (Fla. 4th DCA 1997), and Cox v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998), cited by the Moores. Although Rios did not accurately describe her injuries, her actions did not rise to the level of fraudulent, willful or intentional
conduct. the
Any inconsistencies or confusion in the testimony would be subject of cross-examination or impeachment. The
proper
detailed, thoughtful order of the trial court notwithstanding, we hold that the facts did not rise to the level of fraud or collusion as to require the court to dismiss Rios’s claim. Accordingly, the
order appealed from is reversed and the cause remanded to the trial court for further proceedings. 138 (Fla. 4th DCA 1992). Reversed and remanded. See Kornblum v. Schneider, 609 So. 2d
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