Wallace v. Keldie
| Decision Date | 13 June 2018 |
| Docket Number | No. 1D17–2877,1D17–2877 |
| Citation | 249 So.3d 747 |
| Parties | Edward WALLACE, Appellant, v. Tina KELDIE, Appellee. |
| Court | Florida District Court of Appeals |
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
A
Before addressing the merits of the appeal, we explain our resolution of a procedural issue that arose after Appellee died during the pendency of this appeal. Appellee's death did not render the appeal moot because it is well-established that personal injury actions survive the death of the alleged tortfeasor,5 but as discussed below, her death required us to cancel the scheduled oral argument and decide this appeal on the briefs.
In March 2018, after briefing was complete, counsel for Appellee filed a notice suggesting that Appellee had died on February 5, 2018. About a month later, Appellant filed a motion pursuant to Florida Rule of Appellate Procedure 9.360(c)(3)6 to appoint an "attorney/guardian ad litem" for Appellee. The motion asserted that "no [probate] estate has or will be opened [for Appellee] in Florida or in any other state" and requested that "T. David Mann, Esquire,[7 ] be named as Attorney/Guardian Ad Litem and that he be substituted ... as the real party in interest for [Appellee]." In support of this request, Appellant relied on Schaeffler v. Deych in which the Fourth District stated that "[i]f no estate has been opened, then another appropriate representative, such as a guardian ad litem, will need to be substituted." 38 So.3d 796, 800 (Fla. 4th DCA 2010) (quoting Vera v. Adeland , 881 So.2d 707, 710 (Fla. 3d DCA 2004) ). The motion represented that although Appellee's counsel did not object to the appointment of Mr. Mann, she believed that Appellant had to petition to open a probate estate for Appellee at his expense.
We denied the motion in an unpublished order citing Judge Warner's concurring opinion in Gomez v. Fradin , 199 So.3d 554 (Fla. 4th DCA 2016). In that case, the Fourth District dismissed an appeal of a nonfinal order denying the plaintiffs' motion to appoint an administrator ad litem for a defendant who had died and for whom no probate estate had been opened. Id. at 555 (citing Fla. R. App. P. 9.130 ) ("The order merely denying substitution is a non-final, non-appealable order."). Judge Warner's concurring opinion cogently explained why the plaintiff would not have been entitled to relief even if the appeal had been treated as a petition for writ of certiorari. Id. Specifically, Judge Warner explained that the trial court did not depart from the essential requirements of law in denying the plaintiffs' motion to substitute because there is no statutory or rule authority for a court to appoint an administrator ad litem to represent a deceased defendant in a pending civil lawsuit. Id. at 555–56. Judge Warner further explained that the language from Schaeffler quoted above—and relied on by Appellant in this case—was dicta and that a plaintiff's remedy when a defendant dies and no probate estate is opened is to petition for administration of the estate as an unsecured creditor. Id. at 556 (citing Harrison–French v. Elmore , 684 So.2d 323 (Fla. 3d DCA 1996) ).
Although Gomez involved a motion to substitute filed pursuant to Florida Rule of Civil Procedure 1.260(a), the reasoning in Judge Warner's concurring opinion applies equally to motions to substitute filed pursuant to rule 9.360(c)(3) because the rules use nearly identical language—providing for substitution of the "proper" party without providing authority for determining whom that might be—and serve the same purpose. Accordingly, in addition to denying Appellant's motion to appoint an attorney/guardian ad litem for Appellee, the order directed Appellant to "show cause ... why this appeal should not be abated until a probate estate is opened for Appellee and the personal representative is appointed and substituted for Appellee in this appeal."
Appellant filed a response to the order to show cause in which he argued that the appeal should proceed with the current parties because briefing is complete. He also argued that requiring a probate case to be opened for Appellee would be an unnecessary burden on the court system if the dismissal order is ultimately affirmed, and he suggested that if we reversed the dismissal order, we could "remand ... for further adjudication after a ‘proper’ defendant is substituted for the deceased defendant/appellee." Finally, he argued that "the logic of ... Colucci v. Colucci , 309 So.2d 67 (Fla. 2d DCA 1975) is applicable here."
Although Appellant's suggested procedure seems practical, it ignores the fact that upon her death, Appellee could no longer be a party to this appeal, see Xtra Super Food Center. v. Carmona , 516 So.2d 300, 301 (Fla. 1st DCA 1987) (), nor could her attorney represent her interests, see Rogers v. Concrete Sciences., Inc. , 394 So.2d 212, 213 (Fla. 1st DCA 1981) (). Moreover, because Appellee's probate estate would be responsible for paying any resulting judgment if the dismissal order was reversed and Appellant's suit was allowed to proceed, the personal representative of the estate had a right to be represented, participate in oral argument, and file any necessary post-opinion motions as the real party in interest.8
Moreover, the Colucci case cited by Appellant is distinguishable because the appeal in that case "was completely ready for decision"9 at the time of the party's death. 309 So.2d at 67. Here, by contrast, the appeal was not ready for decision when the suggestion of death was filed because oral argument had been scheduled but not yet held. Cf. Poling v. City Bank & Tr. Co. of St. Petersburg , 189 So.2d 176, 184–85 (Fla. 2d DCA 1966) ().
Thus, we were left with two options—either abate the appeal as described in the order to show cause or cancel oral argument and decide this appeal based on the briefs. We found the latter option to be more appropriate in this case because (1) the appeal was ready for decision aside from the pending oral argument, and (2) it was Appellant who requested oral argument in the first place, so his request for the appeal to proceed with the current parties and his reliance on Colucci 's logic was viewed as a waiver of oral argument. Accordingly, by unpublished order, we advised the parties that "oral argument ... is cancelled and this appeal will be submitted on the briefs."
B
Turning to the merits of the appeal, we review the dismissal order under a mixed standard of review: the factual findings on which the dismissal was based are reviewed for competent substantial evidence, see Tramel v. Bass , 672 So.2d 78, 79 (Fla. 1st DCA 1996), while the legal conclusion that a fraud upon the court has occurred and the trial court's decision to dismiss the case with prejudice are reviewed for an abuse of discretion, see Wells Fargo Bank, N.A. v. Reeves , 92 So.3d 249, 251 (Fla....
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