Obregon v. Rosana Corp.

• Decision Date: 01 November 2017
• Docket Number: No. 3D16–2104,3D16–2104
• Citation: 232 So.3d 1100
• Parties: Leda OBREGON, Appellant/Cross–Appellee, v. ROSANA CORP. d/b/a Original Uncle Tom's Barbeque, Appellee/Cross–Appellant.
• Court: Florida District Court of Appeals

232 So.3d 1100

Leda OBREGON, Appellant/Cross–Appellee,

v.ROSANA CORP. d/b/a Original Uncle Tom's Barbeque, Appellee/Cross–Appellant.

No. 3D16–2104

District Court of Appeal of Florida, Third District.

Opinion filed November 01, 2017

Wasson & Associates, Chartered, and Annabel C. Majewski ; Rubenstein Law, P.A., and Miriam Fresco Agrait, for appellant/cross-appellee.

Luks, Santaniello, Petrillo & Jones, and Daniel J. Santaniello and Edgardo Ferreyra, Jr. and Shana P. Nogues, for appellee/cross-appellant.

Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.

ROTHENBERG, C.J.

Leda Obregon, the plaintiff in a slip and fall case filed against Rosana Corp. d/b/a/ Original Uncle Tom's Barbeque ("Uncle Tom's"), appeals the trial court's order dismissing her complaint with prejudice for fraud on the court. Because the trial court's order is supported by clear and convincing evidence, see Empire World Towers, LLC v. CDA Creances, S.A.S., 89 So.3d 1034, 1038 (Fla. 3d DCA 2012) ("The proponent of a motion to strike pleadings must prove, by clear and convincing evidence, ‘that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense."), we affirm. We additionally treat Uncle Tom's cross-appeal as a timely filed notice of appeal of the trial court's order denying Uncle Tom's motion for entitlement to attorney's fees based on its proposal for settlement, and because we find no ambiguity, we reverse the October 17, 2016 order denying the motion for entitlement to attorney's fees and remand for further proceedings.

Obregon allegedly slipped and fell at Uncle Tom's on May 14, 2012, and she filed a complaint against Uncle Tom's on September 24, 2015, seeking damages for injuries to her neck, back, right leg, right shoulder, and right arm. The record reflects that although Obregon revealed some of the medical providers who had treated her prior to the 2012 slip and fall, in response to the slip and fall interrogatories and collateral source interrogatories, she failed to disclose numerous health care providers who had treated her for injuries and pain directly related to the injuries she is seeking damages for in the lawsuit against Uncle Tom's.

During Obregon's May 10, 2016 deposition, Uncle Tom's learned that Obregon had medical insurance through Medica Healthcare, a fact not previously disclosed by Obregon in her responses to the collateral source interrogatories. Uncle Tom's also learned that Obregon had received treatment at Mercy Hospital and had been treated by Dr. Rheinhardt Reyes and Dr. Gonzalez. Obregon omitted these healthcare providers from her responses to the slip and fall interrogatories. As a result of the information discovered during Obregon's deposition, Uncle Tom's subpoenaed records from Medica Healthcare, Mercy Hospital, Dr. Reyes, and Dr. Gonzalez. As a result of this investigation, Uncle Tom's uncovered sixteen additional treating facilities and healthcare providers that had not been disclosed in Obregon's written discovery responses or during her deposition.

A review of the records of the various healthcare providers Obregon failed to disclose revealed that although Obregon had denied presenting for payment or receiving any payment from any insurance company or third party for damages flowing from the slip and fall at Uncle Tom's, this statement was false. The records reflect that numerous payments had been made to numerous different healthcare providers. But, more importantly, a review of these records revealed that although Obregon denied during her deposition that she had been diagnosed with a herniated disc, she had been diagnosed with a herniated disc in her neck as early as 2009, and this diagnosis was confirmed in 2010 and 2011. Additionally, although Obregon denied being involved in any auto accidents since 2008, these undisclosed records revealed that she was involved in an auto accident on January 26, 2011 that resulted in injuries; Obregon filed a PIP claim for injuries to her back, neck, and left shoulder as a result of that accident; and she was treated forty-one times by healthcare providers not disclosed in either discovery or during Obregon's deposition.

When Uncle Tom's learned that Obregon was receiving social security disability benefits, Uncle Tom's subpoenaed the non-privileged records of the attorney who represented Obregon in conjunction with her disability claim and discovered nine more physicians and facilities that had treated Obregon, which she also failed to disclose. These records revealed that Obregon had a pre-existing disc herniation, which was documented by several of her treating physicians and was reflected in their reports, which Obregon herself had submitted to the lawyer representing her in her disability claim. For example, a follow-up note from Dr. Reyes dated September 29, 2010, notes a cervical spine herniation diagnosis; a medical record from Complete Medical Care Associates, dated November 5, 2010, states that Obregon's medical issues include "[n]eck pain radiating down both upper extremities with a C6–C7 herniated disc as the patient indicated"; and a record from Dr. Richard Fernandez, dated October 29, 2010, states that Obregon's chief complaints include two herniated discs.

Lastly, when asked during her deposition what the basis for her disability claim was and whether her disability was related to her fall at Uncle Tom's, Obregon stated that her disability was as a result of chronic migraines and fibromyalgia, and was not at all related to her fall at Uncle Tom's. The December 19, 2012 disability determination and transmittal form, however, indicates that the primary diagnosis was for a "back disorder (disc degernative)" and that Obregon's initial claim for disability on September 25, 2012 was due to "[f]oraminal stenosis L4 and S1; [v]ertical radiculopathy C6 and C7; [m]igraines; [f]ibromyalgia."

Based on the relevant and material information undisclosed by Obregon and discovered by Uncle Tom's, much of which contradicted Obregon's responses to discovery and her sworn deposition, Uncle Tom's filed a motion to strike Obregon's pleadings for fraud on the court and set the motion for a hearing. Obregon, who attended the hearing, did not testify or present any counter record evidence, although her counsel did argue against the motion. The trial court deferred ruling on the motion and, on the following day, issued its order granting the motion.

Arguments on Appeal

A. The Order striking Obregon's pleadings

Obregon seeks reversal of the trial court's order striking Obregon's pleadings for fraud on the court (1) based on the trial court's failure to conduct an evidentiary hearing, and (2) because Uncle Tom's did not prove by clear and convincing evidence that Obregon's non-disclosures and misrepresentations were willful. We find that the hearing was properly noticed and Obregon was provided with an opportunity to be heard. Obregon, however, failed to present any counter evidence or object to the nature of the hearing or to the trial court rendering its ruling on the motion based on the evidence and arguments by counsel presented at the hearing. Thus, the issue of the form of the hearing was not preserved for appellate review. See McKnight v. Evancheck, 907 So.2d 699, 701 (Fla. 4th DCA 2005) (affirming a dismissal for fraud on the court based on medical records and where neither party requested an evidentiary hearing); Long v. Swofford, 805 So.2d 882, 884 (Fla. 3d DCA 2001) (affirming dismissal of the complaint with prejudice for fraud on the court after the trial court conducted a hearing and reviewed the plaintiff's medical records and deposition); Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So.2d 1011, 1012 (Fla. 4th DCA 1997) (affirming dismissal for fraud on the court and finding that the plaintiff failed to preserve for review the absence of an evidentiary hearing).

The record also clearly reflects that the trial court's order was supported...