ROBERT H. SLATKO, APPELLANT,
v.
HERBERT W. VIRGIN, III AND CHESTER E. WHITTLE, JR., APPELLEES
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Appellant Slatko challenges the trial court's order striking his complaint as a sham in a partnership dispute. The Third District Court of Appeal reversed, holding that the complaint was not palpably false and that genuine issues of fact remained to be tried.
The trial court erred in striking the complaint as a sham because the falsity of the complaint did not clearly and indisputably appear on the record, and the complaint was not demonstrated to be a mere pretense without color of fact. A pleading may be stricken as sham only where it is palpably or inherently false and not subject to genuine issues of fact.
[1] A motion to strike a pleading as sham requires the pleading to be so undoubtedly false as not to be subject to a genuine issue of fact.
[2] A pleading may be stricken as sham only where it is shown to be palpably or inherently false.
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Join FLexlaw to unlock all legal intelligence“in order to justify the striking of a pleading for being sham or false, it must be so undoubtedly false as not to be subject to a genuine issue of fact. In other words, a pleading may be stricken as a sham only where it is shown to be palpably or inherently false.”
Establishes the high legal standard required to strike a pleading as sham—the falsity must be clear, undoubted, and palpable, not merely disputed.
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Join FLexlaw to unlock all legal intelligenceSlatko sued Virgin and Whittle seeking an accounting of partnership assets pursuant to a partnership agreement and modification agreement, and request…
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PER CURIAM.
Appellant, plaintiff below, brings this interlocutory appeal to review an order of the trial court granting appellees’, defendants below, motion to strike the complaint as a sham.
On May 1, 1975, appellant brought a complaint against appellees alleging that, pursuant to the terms of a partnership agreement (articles of partnership) and a modification agreement, he was due an accounting of the partnership assets. In the complaint, appellant also sought an injunction asking that the status quo of the partnership be maintained during the pendency of the suit.
A hearing on the request for an injunction, by way of a rule to show cause, was set for noon on Friday, May 9, 1975. On the day before the hearing, appellees filed an answer, affirmative defenses, and a counterclaim. Also, on the day before the hearing, appellees filed a motion for an injunction and a motion to strike the complaint as a sham under Rule 1.150, Florida Rules of Civil Procedure, 30 F.S.A. Both of these motions were noticed for hearing less than 24 hours later. After the hearing on May 9, 1975, the trial court on May 30, 1975, entered an order granting appellees’ motion to strike the complaint as a sham. The order contains no findings of fact or law and simply provides that appellees’ motion is granted. From the order, appellant brings this interlocutory appeal.
Appellant contends that the trial court manifestly erred, both substantively and procedurally, in striking the complaint as a sham based on the record and in ruling, as a matter of law, that the partnership dis solved upon the retirement of a partner, notwithstanding the written modification agreement to the articles of partnership entered into by the parties.
Appellees contend that appellant has shown no reversible error on appeal nor can any reversible error be shown because the transcript of the testimony at the hearing on their motion to strike is not before this court and the order on appeal was bottomed upon such testimony-
A motion to strike a pleading for sham is controlled by Rule 1.150, Florida Rules of Civil Procedure, 30 F.S.A., derived from former Rule 1.14, Florida Rules of Civil Procedure, 1954, which reads in pertinent part as follows:
“(a) Motion to Strike. If a party deems any pleading or part thereof filed by another party to be a sham, he may move to strike said pleading or part thereof before the cause is set for trial and the court shall hear said motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken. Default and summary judgment on the merits may be entered in the discretion of the court or the court may permit additional pleadings to be filed for good cause shown.”
Pursuant to this rule and its predecessor, it has been held that in order to justify the striking of a pleading for being sham or false, it must be so undoubtedly false as not to be subject to a genuine issue of fact. In other words, a pleading may be stricken as a sham only where it is shown to be palpably or inherently false. A hearing on a motion to strike is not a hearing to try the issues but to determine whether there are any genuine issues to be tried. Meadows v. Edwards, Fla.1955, 82 So. 2d 733; Guaranty Life Ins. Co. of Florida v. Hall Bros. Press, 138 Fla. 176, 189 So. 243; Rhea v. Hackney, 117 Fla. 62, 157 So. 190; Sapienza v. Karland, Inc., Fla.App.1963, 154 So. 2d 204, and see 25 Fla.Jur., Pleadings §§ 33 and 133.
Applying the principles stated above to the appeal sub judice, we hold that the trial court erred in granting appel-lees’ motion to strike the complaint as a sham. Our examination of the record does not reveal that the falsity of appellant’s complaint clearly and indisputably appeared or that it was a mere pretense set up in bad faith and without color of fact and, therefore, subject to the summary treatment of being stricken as a sham. However, we express no opinion as to the correct ultimate outcome of the matter. We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the order appealed is reversed.
Reversed.
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Am. Salvage & Jobbing Co., Inc. v. Jacque Salomon, 367 So. 2d 716 (Fla. 3d DCA 1979)…c. v. Page, 263 So. 2d 218 (Fla.1972); Bay Colony Office Building Joint Venture v. Wachovia Mortgage Co., 342 So. 2d 1005 (Fla. 4th DCA 1977); Citizens and Southern Realty Investors v. Lastition, 332 So. 2d 357 (Fla. 4th DCA 1976); Slatko v. Virgin, 328 So. 2d 499 (Fla. 3d DCA 1976). Because this is the case, the trial court lacked authority to dismiss the case for lack of prosecution under the provisions of F.R.Civ.P. 1.420(e) as amended by the addition of the underscored language, effective January 1, 1977:…
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Destiny Constr. Co. v. Martin K. EBY Constr., 662 So. 2d 388 (Fla. 5th DCA 1995)…first issue is whether the trial court erred in striking Destiny’s complaint as a sham and entering a summary judgment in favor of Eby on the merits. Because striking a pleading is an extreme measure, it is not favored in the law. Slatko v. Virgin, 328 So. 2d 499, 500 (Fla. 3d DCA 1976). In order to warrant the rejection of a pleading as a “sham plea,” the pleading must be a mere pretense, set up in bad faith and without color of fact. Ader v. Temple Ner Tamid, 339 So. 2d 268, 270 (Fla. 3d DCA 1976). Accord…1 / 2
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Jaruagua Enters., Inc. v. DOM, Inc., 339 So. 2d 702 (Fla. 3d DCA 1976)…ts motion to strike the amended cross-claim of defendant Miracle as a sham. We find this point to be without merit. The law governing a motion to strike a pleading as a sham is set out in this court’s recent decision in the case of Slatko v. Virgin, 328 So. 2d 499 (Fla. 3rd DCA 1976). The opinion states that in order to justify the striking of a pleading as a sham or false, it must be so undoubtedly false as not to be subject to a genuine issue of fact; a pleading may be stricken as a sham only where it is sh…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rhea v. Hackney, 117 Fla. 62 (Fla. 1934)
- Meadows v. Edwards, 82 So. 2d 733 (Fla. 1955)
- Guar. Life Ins. Co. v. Hall Bros. Press, Inc., 138 Fla. 176 (Fla. 1939)
- Sapienza v. Karland, Inc., 154 So. 2d 204 (Fla. 3d DCA 1963)