15 Fla. L. Weekly Supp. 580b
Insurance — Personal injury protection — Dismissal — Fraud on court — No abuse of discretion in dismissing PIP case for fraud on court where trial court found that medical provider intended to conceal provider’s lien and deceive insurer and court into believing that insured had executed assignment — Discovery — Failure to comply — Sanctions — No error in denying provider’s motion to strike insurer’s pleadings as sanction for discovery violation and imposing sanction of $500 instead
FLORIDA MOBILE MRI INC., a Florida Corporation, d/b/a Landau Radiology, LLC, A/A/O NILDA CEDENO, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 06-18238 CACE 21. L.T. Case No. 05-7361 COCE 53. February 27, 2008. Counsel: Joseph R. Dawson, Law Office of Dawson & Finkelstein, LLP, Fort Lauderdale. Lara J. Edelstein, Office of General Counsel, United Automobile Insurance Company, Coral Gables.
OPINION
(CHERYL J. ALEMÁN, J.) THIS MATTER comes before this Court on appeal of portions of the trial court’s “Omnibus Order on Defendant’s Motion to Dismiss with Prejudice for Fraud Upon the Court; Order on Defendant’s Motion for Sanctions for Discovery Violations; and Order on Plaintiff’s Motion to Strike Pleadings” entered by the county court on October 17, 2006. Oral argument was heard by this Court on February 27, 2008.
Appellant’s first claim on appeal is that the trial court erred when it granted Appellee’s motion to dismiss for fraud on the court. The standard of review which this Court must apply is that of “abuse of discretion.” The issue before this Court is whether the trial court acted upon a “clear showing of fraud, pretense, collusion or similar wronging doing.” Bob Montgomery Real Estate v. Djokic, 858 So. 2d 371, 374 (Fla. 4th DCA 2003) (citing Tri Star Inv. v. Miele, 407 So.2d 292, 293 (Fla. 2d DCA 1981)); See also Arzuman v. Sand, 843 So. 2d 950 (Fla. 4th DCA 2003).
In the order at issue here, after hearing testimony and evidence, the trial court set forth lengthy findings of fact in which it found, based upon clear and convincing evidence, that Appellant “intended to conceal the document [Provider’s Lien] and deceive the Defendant [Appellee] and the Court that the patient had executed the Assignment when she had not done so.” (R. 644, ¶ 7). The trial court further found that: “[P]roof of standing is a material part of Plaintiff’s case, bearing directly on the Plaintiff’s ability to recover from the insurance policy issued by Defendant.” (R. 644, ¶ 8.)
The findings of fact of the trial court come to this Court “clothed with the presumption of correctness” and will not be disturbed on appeal absent a showing that they are clearly erroneous or totally without any substantial evidence in their support. See Ocean Intern. Corp. v. Lantana Boatyard, 402 So. 2d 507, 511 (Fla. 4th DCA 1981). The trial court is in the best position to judge factors such as credibility. Brooks v. State, 918 So. 2d 181, 209 (Fla. 2005). Here, the trial court findings are based upon substantial record evidence. Accordingly, this Court may not disturb said findings on appeal. Appellant’s second claim is that the trial court erred in denying the “Plaintiff’s Supplemental Motion to Strike Defendant’s Pleadings.” Specifically, the trial court found that “[o]n balance, it would be a miscarriage of justice in this case to grant the [Appellant] the relief it is seeking” (R. 649 ¶ 2). Although the trial court did not grant Appellant’s Motion to Strike Pleadings, it did impose a sanction of $500 for Appellee’s misconduct. (R. 650). Again, it cannot be said that such a measured order is unsupported by the record or constitutes error.
Accordingly, the trial court’s “Omnibus Order on Defendant’s Motion to Dismiss with Prejudice for Fraud Upon the Court; Order on Defendant’s Motion for Sanctions for Discovery Violations; and Order on Plaintiff’s Motion to Strike Pleadings” is AFFIRMED.
