CARL DENTON, APPELLANT,
v.
NORMAN B. GETSON, NORMAN B. GETSON, P.A., A PROFESSIONAL ASSOCIATION, JOYCE GENTRY WELDON, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF WANETA RUTH VELLA, JAI GURDYAL AND JANET GURDYAL, HIS WIFE, MELLON MORTGAGE COMPANY, A FOREIGN CORPORATION, RICARDO SILVA AND ANA SILVA, HIS WIFE, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Carl Denton, holder of a promissory note secured by real property, filed suit against the estate of the payor after the non-claims statute deadline. The trial court struck the complaint as a sham pleading, but the appellate court reversed, holding that mortgage enforcement actions are excluded from the non-claims statute and that the complaint could not be stricken as sham without evidence of actual falsity.
The complaint cannot be struck as a sham pleading absent clear and indisputable evidence of falsity. Moreover, proceedings to enforce liens and mortgages are excluded from the non-claims statute under section 733.702(4), so Denton's action was not barred by his failure to meet the non-claims deadline.
[1] A pleading cannot be stricken as sham unless its falsity clearly and indisputably appears and it is shown to be a mere fiction set up in bad faith.
[2] A sham pleading must be so undoubtedly false as not to be subject to a genuine issue of fact.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a pleading cannot be stricken out as sham unless the falsity thereof clearly and indisputedly appears.... [I]t must evidently be a mere pretense set up in bad faith and without color of fact ... [and be] shown to be a mere fiction.”
Establishes the stringent standard required to strike a pleading as sham under Florida law
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDenton held a promissory note that contained a recital that it was secured by real property. The note was executed by a payor who subsequently died. D…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Sham Pleading cases and more on FLexlaw
PER CURIAM.
This was an action on a promissory note. The note contained a recital that it was secured by real property. Appellant, the payee and holder of the note, failed to file a claim against the estate of the payor of the note within the time permitted by section 733.702(3), Florida Statutes (1993). Upon motion, the trial court struck the complaint as a sham and final judgment was entered.
The Florida Supreme Court in Guaranty Life Ins. Co. of Florida v. Hall Bros. Press, 189 So. 243, 246 (Fla.1939), stated that “a pleading cannot be stricken out as sham unless the falsity thereof clearly and indisput-edly appears.... [I]t must evidently be a mere pretense set up in bad faith and without color of fact ... [and be] shown to be a mere fiction.” See also Meadows v. Edwards, 82 So. 2d 733 (Fla.1955) (in order to justify striking of a pleading for being sham, it must be so undoubtedly false as not to be subject to genuine issue of fact); Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762, 769 (Fla. 4th DCA 1972), cert. denied, 276 So. 2d 51 (Fla.1973) (sham pleadings are those which are inherently false and must have been known by the interposing party to be untrue); Sapienza v. Karland, Inc., 154 So. 2d 204 (Fla. 3d DCA 1963) (pleading may be considered sham when its falsity clearly and indisputably appears).
There were no allegations in the pleadings that the note was forged or that it had been paid, or that it contained a falsity of any kind. It therefore seems evident that the complaint was stricken solely for failure to comply with the non-claims statute. That was error. Section 733.702(4) excludes proceedings to enforce hens and mortgages from the operation of the non-claims statute. This was such an action. It would be premature to consider whether the language on the note is sufficient to satisfy section 697.01, Florida Statutes (1993), or whether some other defect of form or substance may ultimately defeat recovery. The simple and preliminary issue upon which we resolve the present appeal is the appropriateness of striking the complaint as a sham.
We reverse and remand for further appropriate proceedings.
REVERSED AND REMANDED.
DELL, C.J., and HERSEY and STONE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Medardo Ayapan v. Carnival Cruise Lines, Inc., 644 So. 2d 101 (Fla. 3d DCA 1994)…PER CURIAM. We reverse the final order under review striking the plaintiffs second amended complaint as sham upon the reasoning found in Denton v. Getson, 637 So. 2d 82 (Fla. 4th DCA 1994); Menke v. Southland Specialties Corp., 637 So. 2d 285 (Fla. 2d DCA 1994), and return the matter to the trial court for further proceedings. Reversed and remanded.…
Authorities Cited
- Meadows v. Edwards, 82 So. 2d 733 (Fla. 1955)
- Guar. Life Ins. Co. v. Hall Bros. Press, Inc., 138 Fla. 176 (Fla. 1939)
- Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762 (Fla. 4th DCA 1972)
- Sapienza v. Karland, Inc., 154 So. 2d 204 (Fla. 3d DCA 1963)
- Bowen v. Pole, 276 So. 2d 51 (Fla. 1973)
- Carroll Dunscombe v. Beach Club Colony OF Stuart, Inc., 276 So. 2d 51 (Fla. 1973)