final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Paul B. Kanarek, Judge; L.T. Case No.
M. Blake of Blake, Mildner & Associates, P.A., Fort
Pierce, for appellants.
S. Leininger of Williams, Leininger & Cosby, P.A., North
Palm Beach, for appellee.
plaintiffs appeal a final judgment of dismissal. They argue
the trial court erred in dismissing their complaint for fraud
upon the court. We affirm.
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.
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.
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.
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.
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
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
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.
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 ...