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Bryant v. Mezo

Florida Court of Appeals, Fourth District

May 17, 2017

SHEILA BRYANT and CURTIS BRYANT, Appellants,
v.
RAYMOND MEZO, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Paul B. Kanarek, Judge; L.T. Case No. 312014CA001017.

          Glen M. Blake of Blake, Mildner & Associates, P.A., Fort Pierce, for appellants.

          Carri S. Leininger of Williams, Leininger & Cosby, P.A., North Palm Beach, for appellee.

          May, J.

         The plaintiffs appeal a final judgment of dismissal. They argue the trial court erred in dismissing their complaint for fraud upon the court. We affirm.

         The plaintiff and her husband filed a negligence complaint against the defendant after a minor automobile accident. The plaintiff alleged she suffered neck and back injuries.

         The accident was minor. The plaintiff was not transported from the scene and was able to return to work the next day. She did not begin receiving chiropractic treatment for her neck and back until two weeks after the accident. A few months later, the plaintiff had neck surgery.

         In response to interrogatories, the plaintiff identified a prior worker's compensation claim in 1987 or 1988, in which she injured her left arm. She did not include any information about neck or back injuries. During her deposition, the plaintiff failed to mention any neck or back injuries, but stated she had only two prior injuries, an ankle and a left arm injury. She did not recall ever experiencing neck or back pain prior to the accident.

         Records from the State of Florida's Division of Worker's Compensation however revealed the plaintiff filed two worker's compensation claims, one in 1989 and another in 1993, in which she complained of a cervical spine injury. The records contained a deposition from her former chiropractor, who testified that he treated her for a neck injury two to three days a week for nine months. She was treated more than seventy times for the cervical spine injury. She complained of "rather significant neck pain." Her chiropractor concluded she had a seven percent impairment of her whole body related to her cervical spine.

         Records from Indian River Medical Center revealed the plaintiff was treated for back-related injuries in 1991 and 2006, while billing records from Gilmore Chiropractic revealed she received chiropractic treatment several times during 2004. The plaintiff denied ever visiting a chiropractor prior to the accident.

         The defendant moved to dismiss the plaintiffs' complaint for fraud upon the court and attached the billing history and records of the plaintiff's prior treatments. At the evidentiary hearing, the plaintiff reviewed the records, but continued to deny ever having any prior back or neck injuries or treatment. She was able to recall suffering from a prior arm injury in the 1980's, which was referenced in the same medical records as the prior spine injury that she could not recall.

         The trial court found the plaintiff's alleged memory lapses were selective and her failure to disclose was intentional and untruthful. The court dismissed the complaint with prejudice. From this judgment, the plaintiffs now appeal.

         The plaintiffs argue the trial court abused its discretion in dismissing the complaint with prejudice because the defendant did not show clear and convincing evidence that her failure to disclose prior injuries and medical treatment was attributable to fraud rather than a failed memory. The defendant responds that the plaintiff ...


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