Dayna Bolera v. John Papa, Royal Palm Medical, Inc. , 142 So. 3d 918 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
DAYNA BOLERA,
Appellant,
v.
JOHN PAPA, ROYAL PALM MEDICAL, INC.,
PT CENTERS OF FLORIDA, INC., a Florida corporation,
and LAJT, LTD, a Nevada corporation,
Appellees.
No. 4D12-4300
[July 9, 2014]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John Kastrenakes, Judge; L.T. Case Nos.
2009CA012909XXXXMBAB and 2009CA010003XXXMBAB.
Peter J. Malecki of C. Brooks Ricca, Jr. & Associates, P.A., West Palm
Beach, for appellant.
Elliot B. Kula, Daniel M. Samson, W. Aaron Daniel of Kula & Samson,
LLP, Aventura, and Jared A. Levy of Dimond, Kaplan & Rothstein, P.A.,
West Palm Beach, for appellees John Papa and Royal Palm Beach Medical,
Inc.
PER CURIAM.
Appellant, Dayna Bolera, appeals the trial court’s order granting
appellees Dr. John Papa and Royal Palm Beach Medical, Inc.’s (“RPBM”)
verified motion to strike appellant’s pleadings for fraud upon the court.
The trial court’s order struck, with prejudice, the third amended complaint
of appellant and PT Centers of Florida, Inc. (“PTC”)1, as well as appellant’s
answer and affirmative defenses to appellees’ complaint. The court also
entered judgment on liability against appellant but ordered a future trial
on damages to take place.
1 PTC did not file a notice of appeal or a notice of joinder. Thus, pursuant to
Florida Rules of Appellate Procedure 9.020 and 9.360, PTC is an appellee.
The portions of the order striking appellant’s answer and affirmative
defenses and entering judgment only on liability are non-final and non-
appealable. See, e.g., Walter T. Embry, Inc. v. Lasalle Nat’l Bank, 868 So.
2d 661, 662 (Fla. 4th DCA 2004); Sterile Products Corp. v. Jones, 702 So.
2d 628 (Fla. 5th DCA 1997); Brannon v. Johnston, 83 So. 2d 779 (Fla.
1955). We decline to address the merits of these portions of the order.
This court reviews an order dismissing a complaint for fraud upon the
court under a narrowed abuse of discretion standard. Herman v.
Intracoastal Cardiology Ctr., 121 So. 3d 583, 588 (Fla. 4th DCA 2013).
“The standard of appellate review of a ‘clear and convincing finding’ [by the
trial court of fraud upon the court] is whether the finding is supported by
competent, substantial evidence.” Id. (citation omitted).
The multiple exhibits attached to the trial court’s order provide
competent, substantial evidence to support the court’s findings that
appellant committed a fraud upon the court. It cannot be said that the
court abused its discretion in striking the third amended complaint. Thus,
we affirm the portion of the order striking the complaint.
Affirmed.
LEVINE, CONNER, and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2