RUSSELL

v.

MELLS

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

VIOLA RUSSELL,

Appellant,

v.

LINDA BURNELL MELLS,

Appellee.

No. 2D2024-1560

December¹⁰, 2025

Appeal from the Circuit Court for Pinellas County; Cynthia J. Newton, Judge.

Viola Russell, pro se.

Sara Evelyn McLane, Largo, for Appellee.

LUCAS, Chief Judge. This opinion addresses two issues. The first, a relatively straightforward procedural error, requires reversal of the final judgment in favor of appellee, Linda Mells, based upon the order dismissing appellant, Viola Russell's complaint with prejudice. The second, an apparent lapse of professional conduct on the part of appellee's counsel, requires referral to the Florida Bar.

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I.

Ms. Russell and Ms. Mells have an ongoing dispute over Ms. Mells' actions vis-à-vis Ms. Russell's aged aunt, Viola Cain (to avoid confusion, we will refer to Viola Cain as Aunt Viola). Apparently, Ms. Mells, a retired nurse practitioner and hired caregiver for Aunt Viola, had received a power of attorney to act on behalf of Aunt Viola and, upon Aunt Viola's passing, was appointed as personal representative of Aunt Viola's estate. Proceeding pro se, Ms. Russell filed a civil complaint against Ms. Mells. The complaint was rambling, and it sought unspecified damages arising out of Ms. Mells' alleged defamation of Ms. Russell, the filing of an injunction petition against Ms. Russell, and Ms. Mells' interactions with Aunt Viola.¹ Through counsel, Ms. Mells filed a motion to dismiss the complaint for failure to state a cause of action. At Ms. Mells' request, the court granted the motion without a hearing and allowed Ms. Russell five days to amend her complaint. Ms. Russell did so but then, ten days later, submitted another amended complaint. The only difference between the two versions was that the latter included page numbers. Ms. Mells never objected to the filing of this unauthorized third complaint, accord Fla. R. Civ. P. 1.190(a), so we will refer to the page-enumerated amended complaint as the "second amended complaint." The second amended complaint was titled "Amended Complaint for Defamation and I.I.E.D. [Intentional Infliction of Emotional Distress]." Ms. Mells filed a motion to dismiss the second amended complaint, again arguing that it failed to state a cause of action

II.

"[T]his court reviews an order dismissing a complaint with prejudice using a de novo standard of review, because a motion to dismiss examines the legal sufficiency of the complaint, not factual determinations." Thews v. Wal-Mart Stores E., LP, 210 So. 3d 723, 724 (Fla. 2d DCA 2017) (citing Neapolitan Enters. LLC v. City of Naples, 185 So. 3d 585, 589 (Fla. 2d DCA 2016)). Because the circuit court's dismissal order effectively denied Ms. Russell's pending motion for leave to amend, we further consider whether that denial constituted an abuse of discretion. Drish v. Bos, 298 So. 3d 722, 723 (Fla. 2d DCA 2020) ("We review the denial of a motion for leave to amend a complaint under an abuse of discretion standard." (citing Saidi v. Saqr, 207 So. 3d 991, 992 (Fla. 5th DCA 2016))).

III.

Although Ms. Russell's prior attempts to plead a proper civil complaint fell short of the mark, as she pointed out in her motion for leave to amend to file her third amended complaint, her case was still at a relatively early stage. No trial had been set, no motion for summary judgment had been filed. From our review of the record, it doesn't appear that either party had engaged in any discovery. At the time the circuit court dismissed Ms. Russell's complaint with prejudice, the court

2 Ms. Russell also challenges the circuit court's order granting Ms. Mells' entitlement to attorney's fees and costs. Her argument is two-fold: first, she maintains that the dismissal of her complaint with prejudice was erroneous and, therefore, cannot support a section 57.105 sanction order; second, she argues that the court's failure to include any express findings in the sanction order requires reversal. See Soto v. Carrollwood Vill. Phase III Homeowners Ass'n, 326 So. 3d 1181, 1185 (Fla. 2d DCA 2021) ("A fee award as a sanction under section 57.105(1) requires the circuit court to make detailed findings on the basis of its award." (citing Jean-Pierre v. Glaberman, 192 So. 3d 613, 613 (Fla. 4th DCA 2016))). Because the court's order only determined entitlement to attorney's fees and costs, but did not award an actual amount, we are without jurisdiction to review that aspect of the court's ruling, and so we must dismiss that part of the appeal. See Johnson Tr. of Krej Irrevocable Tr. No. 7 v. Cliche Piano Bar & Pool Lounge, LLC, 290 So. 3d 158, 159 (Fla. 2d DCA 2020) ("We dismiss the portion of this appeal wherein appellant challenges the portion of the order granting appellee's motion for

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IV.

We must now turn to an issue concerning appellee's briefing in this case. Ms. Mells' attorney, Sara Evelyn McLane, filed an answer brief that contained three case citations. Only two of those citations were to actual cases published by the Southern Reporter; and both of those cases were misquoted in the answer brief (that is, the brief attributed quoted text from one case that was actually found in another). The third citation appears in the following paragraph of the answer brief: In Cade v. Roberts, 403 So. 2d 516 (Fla. 5th DCA 1981) "A Motion to dismiss admits all well-pleaded facts in the complaint and the court must view those facts in a light most favorable to the plaintiff. The motion should not be granted unless the plaintiff can prove no set of facts in support of the claim ". No such case exists. In fact, our research of Florida law has revealed no reported case by the name of "Cade v. Roberts" anywhere. Page 516 of Volume 403 of the Southern Reporter (Second Series) is, in fact, part of the Girardeau v. State opinion from the First District, an interesting case about a criminal contempt proceeding against a member of the Florida House of Representatives who had refused to answer questions before a grand jury, but which had nothing whatsoever to do with motions to dismiss or civil pleading practice.

attorneys' fees pursuant to section 57.105, Florida Statutes (2018), as that portion of the order is nonfinal and nonappealable." (citing SP Healthcare Holdings, LLC v. Surgery Ctr. Holdings, LLC, 208 So. 3d 775, 781 (Fla. 2d DCA 2016))); Bois v. Bois, 351 So. 3d 40 (Fla. 4th DCA 2022) ("Appellant challenges two portions of the trial court's order on appeal. We dismiss as to appellant's argument that the trial court erred in granting appellee's motion for attorney's fees pursuant to section 57.105, Florida Statutes (2020). Because the trial court's order determined only entitlement to attorney's fees, that portion of the order is nonfinal and nonappealable."). Of course, in light of our reversal, the circuit court is free to reconsider this ruling on remand.

3 "Generative artificial intelligence (GenAI) refers to AI models, in particular those that use machine learning (ML) and are trained on large volumes of data, that are able to generate new content." See Generative Artificial Intelligence: Overview, Issues, and Considerations for Congress, CRS IF12426. "Large language models (LLMs) are AI systems that aim to model language, sometimes using millions or billions of parameters (i.e., numbers in the model that determine how inputs are converted to outputs). . . . GenAI models work to match the style and appearance of the underlying training data." Id. The phenomenon of hallucination by GenAI arises "[w]hen these models do not know an answer, they can and do make up answers that sound plausible to fill in the blanks or gaps in data." Brent J. Hoeft, When AI 'Lies': The Legal Risks of Hallucinations, Wis. Law., September 2025, at 39, 40. "[T]hese AI platforms look at legal briefs in their training model and then create output that looks like a legal brief by 'placing one most-likely word after another' consistent with the prompt it received." In re Martin, 670 B.R. 636, 649 (Bankr. N.D. Ill. 2025) (quoting Brian Barrett, "You Can't Lick a Badger Twice": Google Failures Highlight a Fundamental AI Flaw, Wired (Apr. 23, 2025, 7:44 PM), https://www.wired.com/story/google-ai-overviews-meaning/). According to one study, GenAI programs for legal research hallucinate legal authorities between seventeen and thirty-three percent of the time. See Varun Magesh, Faiz Surani, et al., Hallucination-Free? Assessing the Reliability of Leading AI Legal Research Tools, Journal of Empirical Legal Studies, 2025; 0:1–27 (March 14, 2025).

4 She never tells us where, and there is no text we've found in Florida law that directly matches the purported quotation she set forth in the brief. But substantively Ms. McLane is correct. See Schmidt v. Thobe, No. 2D2024-0994, 2025 WL 2524505, at *2 (Fla. 2d DCA Sept.³, 2025) ("When ruling on a motion to dismiss, 'a trial court is confined to the four corners of the complaint, and the material allegations of the complaint must be taken as true.' " (quoting All Ins. Restoration Servs. v. Heritage Prop. & Cas. Ins., 338 So. 3d 448, 449 (Fla. 2d DCA 2022))).⁵ While a delegated signature execution may not have been a legal or ethical impropriety, under these circumstances, it certainly didn't make a good impression. In the future, our orders to show cause for these kinds of matters will specify that counsel must personally execute the written response, though that point really should not need to be stated.

MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.

Opinion subject to revision prior to official publication.