00-2314 ARMAKAN V. MCLEAN

State: Florida

Court: Florida Third District Court

Docket No: 00-2314 ARMAKAN V. MCLEAN

Case Date: 11/07/2001

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2001 BAHRAM ARMAKAN and TAHEREH HOOSHMAND, his wife, Appellants, ** vs. ** JIM McLEAN, ** Appellee. ** Opinion filed November 7, 2001. An appeal from the Circuit Court of Dade County, Gisela Cardonne, Judge. Lee Friedland and Jeremy Friedman and Nick Spradlin, for appellants. Kubicki Draper and Caryn L. Bellus, for appellee. LOWER TRIBUNAL CASE NO. 98-30109 ** ** CASE NO. 3D00-2314

Before SCHWARTZ, C.J., and FLETCHER and RAMIREZ, JJ. FLETCHER, Judge. Plaintiffs, Bahran Armakan and Tahereh Hooshmand, his wife, appeal the dismissal of their negligence action against defendant, Jim McLean, based on plaintiffs' allegedly fraudulent

misrepresentations during discovery.

We reverse.

This case arose out of an automobile accident on September 29, 1997 which resulted in injury to plaintiff Armakan's left knee. During the discovery and process, Armakan by answered denying written he had

interrogatories

deposition

questions

suffered any prior injuries. Armakan's physician, however,

From medical records provided by defendant McLean subsequently

discovered that eighteen years prior to the subject accident Armakan had undergone surgery to his right knee. McLean then moved for dismissal of the instant action based, among other reasons, on the failure to reveal the prior injury. In an affidavit filed in

opposition to the motion, Armakan claimed to have forgotten the other knee surgery due to its remoteness in time. At the hearing on McLean's motion for dismissal, the trial court indicated that it did not find the misrepresentation

regarding the prior injury to be material because it involved the right knee rather than the left knee allegedly injured in the subject accident. Notwithstanding this finding, on July 20, 2000,

the trial court entered a final order of dismissal specifically basing it on a contrary finding that "the plaintiff attempted to commit a fraud upon the Court by his failure to answer truthfully defendant's questions regarding a prior knee injury and surgery in 1983." (R. at 132.) However, the record clearly supports the

trial court's initial finding (with which we agree) that the misrepresentation does not warrant the severe sanction of a

complete dismissal of Armakan's claim. 2

See Simmons v. Henderson,

745 So. 2d 1031 (Fla. 2d DCA 1999), rev. denied 767 So. 2d 457 (Fla. 2000); compare Baker v. Myers Tractor Servs., Inc., 765 So. 2d 149 (Fla. 1st DCA 2000). Accordingly, we reverse the judgment and remand for further proceedings consistent with this opinion.

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