FREDDY CROMER, APPELLANT,
v.
PIERCE H. MULLALLY, ESQ., AND PIERCE H. MULLALLY, ESQ., P.A., APPELLEES
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Freddy Cromer appeals the trial court's dismissal of his negligent misrepresentation complaint against his closing agent Pierce Mullally as a sham pleading. The court reversed, holding that the trial court improperly converted the sham pleading motion into a merits hearing and failed to establish that the complaint was clearly and indisputably false.
The trial court erred in granting the motion to strike the complaint as sham. A pleading is only sham when it is inherently false and clearly known to be false when made, and the trial court must determine whether the pleading is clearly and indisputably false, not hear testimony on the merits.
[1] A pleading may be stricken as a sham only where it is shown to be a plain fiction and undoubtedly false.
[2] A court considering a motion to strike pleadings as sham is not authorized to weigh issues or resolve factual conflicts.
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Join FLexlaw to unlock all legal intelligence“A pleading is only considered a sham when it is inherently false and clearly known to be false at the time the pleading was made.”
Establishes the legal standard for striking a pleading as sham
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Join FLexlaw to unlock all legal intelligenceIn October 1999, Cromer refinanced his apartment building and obtained insurance through Mullally as closing agent. A binder from Essex Insurance Comp…
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PER CURIAM.
Freddy Cromer (“Cromer”) appeals the trial court’s order granting Pierce Mullally and Pierce Mullally, P.A.’s (hereafter collectively referred to as “Mullally”) motion to strike Cromer’s complaint as sham. We reverse.
In October of 1999, Cromer decided to refinance his apartment building. In order to close on the property, he was required to obtain general liability and windstorm insurance. Cromer’s mortgage broker obtained insurance from Essex Insurance Company (“insurance company”) through an agent. The agent delivered a binder that contained general liability coverage to the closing agent, Mullally. At closing, Mullally wrote on the binder that the insurance coverage also included windstorm coverage. Several days later, Cromer’s property was damaged by Hurricane Irene.
Cromer filed a claim with the insurance company. The insurance company denied the claim alleging that it had not issued a policy to Cromer. Cromer filed suit against the insurance company and the agent who procured the policy. The complaint was amended several times and the fourth amended complaint, which is at issue here, asserted claims of negligent misrepresentation against Mullally. Mullally filed a motion for summary judgment and a separate motion to strike the amended complaint as sham pursuant to Florida Rule of Civil Procedure, 1.150.
The trial court conducted a hearing on the motion to strike. Mullally testified at the hearing and admitted that he wrote windstorm coverage on the binder. Mul-lally denied giving the binder to Cromer. The trial court granted the motion to strike the complaint as sham and ruled that since no insurance coverage existed to begin with, Mullally’s representation of non-existent windstorm coverage to Cromer was not causally connected to Cromer’s damages.
The trial court erred in dismissing the pleading as sham. A pleading is only considered a sham when it is inherently false and clearly known to be false at the time the pleading was made. See Menke v. Southland Specialities Carp., 637 So. 2d 285 (Fla. 2d DCA 1994). Furthermore, a hearing on a motion to strike a pleading as sham is not for the purpose of trying the issues, but rather serves the purpose of determining whether there are any genuine issues to be tried. See Meadows v. Edwards, 82 So. 2d 733 (Fla.1955). The fact that a court may perceive little prospect in the success of an alleged sham proceeding is not a sufficient ground to grant a motion to strike the pleading. See St. John Medical Plans, Inc., v. Physician Corp. of America, 711 So. 2d 1329 (Fla. 3d DCA 1998).
Here, the trial court did not determine whether or not there was any falsity to the pleadings. Instead, the court heard testimony as to the merits of the case. This was not proper procedure. See Menke, 637 So. 2d at 286. Furthermore, nothing in the record demonstrates that the complaint was clearly and indisputably false. Accordingly, we determine that it was error for the trial court to strike Cromer’s complaint as sham.
Reversed and remanded, with instructions to reinstate Cromer’s complaint.
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Mortg. Elec. Registration Sys., Inc. v. Revoredo, 955 So. 2d 33 (Fla. 3d DCA 2007)…he merits, we do not think that the circumstances of this case, in which the court considered improper MERS's perhaps disingenuous attempt to claim the status of a conventional "actual” mortgagee, would justify such a ruling. See Cromer v. Mullally, 861 So. 2d 523 (Fla. 3d DCA 2003). . Despite the existence of ambiguous language in the Second District opinion as to whether MERS was the “owner and holder of the note and the mortgage” in question, see Azize,-So. 2d at-[32 Fla. L. Weekly at D547], we apply the…
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Upland Dev. OF Cent. Fla., Inc. v. Whittaker Lloyd Bridge, 910 So. 2d 942 (Fla. 5th DCA 2005)…cker, 698 So. 2d at 652. Thus, a hearing on a motion to strike a pleading as sham is not for the purpose of trying the issues, but rather [*945] serves the purpose of determining whether there are any genuine issues to be tried. Cromer v. Mullally, 861 So. 2d 523, 525 (Fla. 3d DCA 2003). Res judicata is an affirmative defense that may not be raised by motion to dismiss because it requires pleading and proof. Glass v. Armstrong, 330 So. 2d 57, 58 (Fla. 1st DCA 1976); see also Swinney v. City of Tampa, 707 So.…
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Herranz v. Siam, 2 So. 3d 1105 (Fla. 3d DCA 2009)…Only after holding an evidentiary hearing may the trial court “strike the pleading as a sham if it finds that the falsity of the pleading clearly and indisputably appears.” Pacheco, 701 So. 2d at 106 (Fla. 3d DCA 1997). See also Cromer v. Mullally, 861 So. 2d 523, 525 (Fla. 3d DCA 2003) (“A pleading is only considered a sham when it is inherently false and clearly known to be false at the time the pleading was made.”). As testimony must be taken, notice of the required evidentiary hearing must be provided t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Meadows v. Edwards, 82 So. 2d 733 (Fla. 1955)
- Menke v. Southland Specialties Corp., 637 So. 2d 285 (Fla. 2d DCA 1994)
- ST. John Med. Plans, Inc. v. Physician Corp. OF Am. & Alberto Gutman, 711 So. 2d 1329 (Fla. 3d DCA 1998)