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Wallace v. Keldie

Florida Court of Appeals, First District

June 13, 2018

Edward Wallace, Appellant,
v.
Tina Keldie, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Okaloosa County. Terrance R. Ketchel, Judge.

          Woodburn S. Wesley, Jr., of Wesley, McGrail & Wesley, Fort Walton Beach, for Appellant.

          Samantha D. Costas and Linda H. Wade of Wade, Palmer & Shoemaker, P.A., Pensacola, for Appellee.

          WETHERELL, J.

         Appellant, the plaintiff below, appeals the order dismissing his personal injury suit against Appellee with prejudice for fraud on the court. We find no abuse of discretion in the dismissal of the suit because the record supports the trial court's finding that Appellant fraudulently concealed his history of chronic low back pain by falsely testifying about his medical history during his deposition. Accordingly, we affirm the dismissal order.

         I

         On two separate occasions in May 2014, Appellant was riding in a car owned by Appellee, his "fiancée, "[1] when the car was allegedly rammed by a white pickup truck. Both times, the pickup truck fled the scene after hitting Appellee's car.[2]

         In June 2016, Appellant filed a complaint alleging that Appellee was negligent with respect to the second accident and that he suffered permanent injuries to his neck and low back as a result of that accident.[3] During discovery, Appellant disclosed that he injured his low back in the early 1980s, but he testified in his deposition that the injury "healed" and that he had not had any problems with his low back in the 30 years since. He also denied having been to see a doctor for low back pain since 2000.

         Appellant's medical records told a different story. A record from an emergency room visit in October 2013-seven months before the accidents-states that Appellant reported that he hurt his low back by slipping off a stepladder, resulting in pain that he described as "aching and crushing" at a level of "10 out of 10" and radiating to his left leg. The record also states that Appellant reported having a "chronic" history of similar episodes and of a herniated disc. Additionally, a record from an emergency room visit in May 2014, nine days after the second accident, states that Appellant reported that his back pain started "a long time ago" but was made worse by the first accident.

         Appellee filed a motion to dismiss based upon the discrepancies between Appellant's deposition testimony and his medical records.[4] The trial court held an evidentiary hearing on the motion at which Appellant admitted his history of low back pain as reflected in the medical records, but he claimed that his contrary deposition testimony was not due to an intent to deceive but rather was attributable to his "poor memory" caused by mental health issues, heavy drinking, and his medications. The trial court granted the motion to dismiss, finding that Appellant's deposition testimony was "patently false" and that he had "fraudulently concealed . . . his prior personal injuries."

         This appeal followed.

         II

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