INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, APPELLANT,
v.
J. ARTHUR HAWKESWORTH, JR., AND E. JAMES SCHMICK, APPELLEES
PER CURIAM.
Affirmed. See Guaranty Life Insurance Co. v. Hall Bros. Press, Inc., 138 Fla. 176, 189 So. 243 (1939); Dutch Inns of America, Inc. v. Jenkins, 301 So. 2d 119 (Fla. 3d DCA 1974).
PEARSON, Judge
(dissenting).
I respectfully dissent from the affirmance of the partial summary judgment, which was based upon an order striking the defendant’s defenses. It is my view that a party moving to strike defenses as a sham must produce a record that supports the order striking the defenses as sham. In other words, the bases for the court’s action must appear in the record by affidavits or otherwise. I believe that the rule is correctly stated in the first case cited in the majority’s affirmance, Guaranty Life Ins. Co. of Florida v. Hall Bros. Press., Inc., 138 Fla. 176, 189 So. 243, 246 (1939), where that court stated:
“ ‘But a pleading cannot be stricken out as sham unless the falsity thereof clearly and indisputably appears. As otherwise expressed, to warrant the rejection of a pleading as sham, it must evidently be a mere pretense set up in bad faith and without color of fact. The rule cannot be applied to any case except where the defense is shown to be a plain fiction.’ ”
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Authorities Cited
- Guar. Life Ins. Co. v. Hall Bros. Press, Inc., 138 Fla. 176 (Fla. 1939)
- Dutch Inns OF Am., Inc. v. Jenkins, 301 So. 2d 119 (Fla. 3d DCA 1974)