ARMAKAN V. MCLEAN
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2001 BAHRAM ARMAKAN and TAHEREH HOOSHMAND, his wife, ** ** Appellants, CASE NO. 3D00-2314 ** vs. ** JIM McLEAN, ** Appellee. LOWER TRIBUNAL CASE NO. 98-30109 ** Opinion filed November 7, 2001. An appeal from the Circuit Court of Dade County, Gisela Cardonne, Judge. Lee Friedland and Jeremy Friedman and Nick Spradlin, for appellants. Kubicki Draper and Caryn L. Bellus, for appellee. Before SCHWARTZ, C.J., and FLETCHER and RAMIREZ, JJ. FLETCHER, Judge. Plaintiffs, Bahran Armakan and Tahereh Hooshmand, his wife, appeal the dismissal of their negligence action against defendant, Jim McLean, based on plaintiffs' misrepresentations during discovery. allegedly We reverse. fraudulent This case arose out of an automobile accident on September 29, 1997 which resulted in injury to plaintiff Armakan s left knee. During the discovery interrogatories and process, deposition suffered any prior injuries. Armakan's physician, Armakan questions answered by denying written he had From medical records provided by however, defendant McLean subsequently discovered that eighteen years prior to the subject accident Armakan had undergone surgery to his right knee. McLean then moved for dismissal of the instant action based, among other reasons, on the failure to reveal the prior injury. In an affidavit filed in opposition to the motion, Armakan claimed to have forgotten the other knee surgery due to its remoteness in time. At the hearing on McLean s motion for dismissal, the trial court indicated that it did not find the misrepresentation regarding the prior injury to be material because it involved the right knee rather than the left knee allegedly injured in the subject accident. Notwithstanding this finding, on July 20, 2000, the trial court entered a final order of dismissal specifically basing it on a contrary finding that the plaintiff attempted to commit a fraud upon the Court by his failure to answer truthfully defendant s questions regarding a prior knee injury and surgery in 1983. (R. at 132.) However, the record clearly supports the trial court s initial finding (with which we agree) that the misrepresentation does not warrant complete dismissal of Armakan s claim. 2 the severe sanction of a See Simmons v. Henderson, 745 So. 2d 1031 (Fla. 2d DCA 1999), rev. denied 767 So. 2d 457 (Fla. 2000); compare Baker v. Myers Tractor Servs., Inc., 765 So. 2d 149 (Fla. 1st DCA 2000). Accordingly, we reverse the judgment and remand for further proceedings consistent with this opinion. 3
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