CHRISTIAN HERRANZ, APPELLANT,
v.
ROBERTO SIAM, APPELLEE
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The court held that a motion to strike a pleading as a sham requires a properly noticed evidentiary hearing, and without such notice, the order striking the pleading must be reversed.
[1] A trial court must conduct an evidentiary hearing when a party moves to strike a pleading as a sham before trial.
[2] Proper notice of an evidentiary hearing must be provided to parties to avoid surprise and ensure due process.
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Join FLexlaw to unlock all legal intelligencePlaintiff Herranz appealed the trial court's order granting defendant Siam's motion to strike the complaint as a sham and to set aside a default. The …
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Christian Herranz (“Herranz”) appeals the trial court’s order granting Roberto Siam’s (“Siam”) motion to set aside default and motion to strike complaint as a sham. Because we find that the hearing on the motion to strike the complaint as a sham was not properly noticed as an evidentiary hearing, we reverse the trial court’s order granting the motion. We affirm, however, the trial court’s order granting Siam’s motion to set aside default as we find that the trial court did not abuse its discretion in granting the motion.
With regard to the trial court’s order striking the complaint as a sham, Herranz raises several issues. We find, however, that only one issue merits discussion. Florida Rule of Civil Procedure 1.150 mandates that, if a party moves before trial to strike a pleading as a sham, the trial court must conduct an evidentiary hearing.1 See Pacheco v. Wasserman, 701 So.2d 104, 106 (Fla. 3d DCA 1997). The purpose of such a hearing is to determine whether there are any genuine issues to be tried. See Slatko v. Virgin, 328 So.2d 499, 500 (Fla. 3d DCA 1976). 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 to the parties in order to avoid surprise and ensure due process. As this Court explained in Juliano v. Juliano, 687 So.2d 910 (Fla. 3d DCA 1997):
It is expected that motion calendar hearings are for the purpose of resolving matters which require little time and are limited to arguments of counsel. While there is nothing to prevent the trial court from hearing testimony in uncontested matters, or by agreement of all involved, testimony in disputed matters comes as a surprise at motion calendar. Accordingly, to avoid sandbagging of *1107parties, if the court is to allow testimony in disputed motion calendar hearings, specific notice of such intention must he given, with a sufficient interval to prepare and adequate opportunity to present contrary testimony prior to ruling.
On appeal, Herranz argues that the trial court erred in striking his complaint as a sham as the required evidentiary hearing was not properly noticed. We agree. The record establishes that Siam’s original notice of hearing and re-notice of hearing simply notified Herranz that the hearing was set for April 17, 2008, at 8 a.m. The notice gave no indication that the matter was scheduled as an evidentia-ry hearing. Indeed, on April 16, 2008, one day before the hearing, Herranz served a motion to continue and to set the motion for an evidentiary hearing. In his motion, Herranz argued that the motion to strike his complaint as a sham concerned issues that could not be resolved at a motion calendar and required an evidentiary hearing. Prior to entering the subsequent order on appeal, the trial court apparently denied Herranz’s motion.
Because we find that Herranz did not receive proper notice that the motion to strike the complaint as a sham was scheduled as an evidentiary hearing, we are compelled to reverse the trial court’s order and remand for the trial court to conduct a properly noticed evidentiary hearing on Siam’s motion.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
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1445 Wash. Ltd. P'ship v. Lemontang, 19 So. 3d 1079 (Fla. 3d DCA 2009)…ich the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default.” At a minimum, due process requires that a party be given sufficient notice to prepare for a hearing. See e.g., Herranz v. Siam, 2 So. 3d 1105 (Fla. 3d DCA 2009); Crepage v. City of Lauderhill, 774 So. 2d 61 (Fla. 4th DCA 2000). Where a default is entered, the defaulting party admits entitlement to liquidated damages, but not unliquidated damages. Cellular Warehouse, 957 So. 2d at 666. Da…
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Samy F. Bishai, M.D. & Samy F. Bishai, M.D., P.C. v. THE Health LAW Firm, P.A., 293 So. 3d 1066 (Fla. 5th DCA 2020)…of Civil Procedure 1.150 mandates evidentiary hearings on motions to strike sham pleadings, Bishai should have been on notice of the evidentiary nature of the hearing. However, the procedural history of this case leads us to follow Herranz v. Siam, 2 So. 3d 1105 (Fla. 3d DCA 2009), which is strikingly similar to the facts at issue. In Herranz, the defendant set his motion to strike the complaint as a sham on the trial court’s motion calendar without any indication that it would be an evidentiary hearing. Id…
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Magela Belson v. Miller, 314 So. 3d 525 (Fla. 3d DCA 2020)…rule on motion to strike complaint as sham by merely examining it, and reversing because court was required to hold full evidentiary hearing and give opportunity to offer evidence on whether complaint alleged false cause of action); Herranz v. Siam, 2 So. 3d 1105, 1107 (Fla. 3d DCA 2009) (reversing grant of 1.150 motion to strike complaint as sham where hearing was not properly noticed as evidentiary hearing); Furst v. Blackman, 744 So. 2d 1222, 1224 (Fla. 4th DCA 1999) (concluding reversal required by pro…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Slatko v. Virgin, 328 So. 2d 499 (Fla. 3d DCA 1976)
- Juliano v. Juliano, 687 So. 2d 910 (Fla. 3d DCA 1997)
- Pacheco v. Wasserman, 701 So. 2d 104 (Fla. 3d DCA 1997)
- Miliades Peguero v. State, 861 So. 2d 523 (Fla. 5th DCA 2003)
- Freddy Cromer v. Pierce H. Mullally, Esq., 861 So. 2d 523 (Fla. 3d DCA 2003)