REIF DEVELOPMENT, INC., ET AL., APPELLANTS,
v.
WACHOVIA MORTGAGE COMPANY, ETC., ET AL., APPELLEES
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Reif Development appeals the trial court's order striking its answer, affirmative defenses, and counterclaim as sham pleadings in a mortgage foreclosure action. The appellate court reversed, holding that pleadings may only be struck as sham when they are undoubtedly false and patently a fiction, not merely when they lack prospects of success.
A pleading may be struck as sham only when it is shown to be plainly and undoubtedly false and a mere pretense set up in bad faith without any color of fact. The trial court cannot strike pleadings merely because it perceives little prospect of success; the court must determine whether genuine issues exist to be tried, not attempt to weigh the issues or resolve conflicts.
[1] A pleading may be stricken as a sham only where it is shown to be a plain fiction and undoubtedly false, not subject to a genuine issue of fact.
[2] A court considering a motion to strike pleadings as sham is not authorized to weigh issues or resolve factual conflicts.
Previewing 2 of 4 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“In order to justify the striking of a pleading for being false or sham, 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 a plain fiction; the fact that the court may perceive of the little prospect of the success of the alleged sham pleading, is not sufficient ground to grant a motion to strike.”
Establishes the high standard required to strike pleadings as sham—they must be undoubtedly false and a plain fiction, not merely lacking in prospects of success
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWachovia sued Reif Development to foreclose a $4,000,000 construction mortgage based on alleged defaults by Reif. Reif denied the defaults and asserte…
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DOWNEY, Judge.
This case involves an interlocutory appeal from an order of the trial court striking as sham pleadings appellant’s answer, affirmative defenses and counterclaim.
Appellee had sued appellants to foreclose a $4,000,000 construction mortgage due to alleged defaults by appellants. Appellants denied the defaults and alleged affirmatively that appellee had breached the construction loan agreement and other loan documents in numerous respects which rendered appellants unable to perform their responsibilities under the contracts. As a result appellants alleged appellees were estopped to foreclose. Appellants also filed a counterclaim asserting various causes of action based upon the same asserted breaches by appellees.
Upon appellees’ motion the trial court struck appellants’ answer, affirmative defenses, and counterclaim as sham pleadings.
We have read the deposition, the affidavit, and other proof which the trial judge had for consideration on the motion to strike and are unable to conclude that the stricken pleadings are a “plain fiction” or “undoubtedly false”. It may well be that, upon subsequent proceedings, it can be demonstrated by the greater weight of the evidence that appellants’ defenses and counterclaim lack merit and that appellees should prevail. But in the present posture of this case neither we nor the trial court are authorized to weigh issues and resolve conflicts. Rather, in a hearing upon a motion to strike, pursuant to Rule 1.150(a), Fla.R.Civ.P., the court is:
“. . . not to try the issues but to determine whether there are any genuine issues to be tried. In order to justify the striking of a pleading for being false or sham, 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 a plain fiction; the fact that the court may perceive of the little prospect of the success of the alleged sham pleading, is not sufficient ground to grant a motion to strike.” 25 Fla.Jur., Pleadings, § 133.
As the Supreme Court said in Rhea v. Hackney, 117 Fla. 62, 71, 157 So. 190, 193 (1934):
“But a pleading cannot be stricken out as sham unless the falsity thereof clearly and indisputably appears. As otherwise expressed, to warrant the rejection of a pleading as sham, it must evidently be a mere pretense set up in bad faith and without color of fact. The rule cannot be applied to any case except where the defense is shown to be a plain fiction.” Accordingly, the order appealed from is reversed, and the cause is remanded for further proceedings.
REVERSED AND REMANDED.
MAGER, C. J., and ALDERMAN, J., concur.
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Menke v. Southland Specialties Corp., 637 So. 2d 285 (Fla. 2d DCA 1994)…Steen & Zimmet v. HAMC Indus., Inc., 597 So. 2d 427 (Fla. 2d DCA 1992). Where there is no showing that the stricken pleadings were a plain fiction or undoubtedly false, the pleadings should be reinstated. See Reif Dev., Inc. v. Wachovia Mortg. Co., 340 So. 2d 1267 (Fla. 4th DCA 1976). The trial court’s order in the instant case stated that the appellants’ answer and affirmative defenses were a sham when compared to the appellant Mr. Menke’s deposition testimony. We note initially that since the appellee’s mo…
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Scarfone v. Silverman, 408 So. 2d 778 (Fla. 2d DCA 1982)…could not be granted. Meadows v. Edwards, 82 So. 2d 733 (Fla.1955). The fact that the court might perceive that a party’s pleading has little prospect of success does not justify striking it as sham. Reif Development, Inc. v. Wachovia Mortgage Co., 340 So. 2d 1267 (Fla. 4th DCA 1976). As another of our sister courts explained: 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 su…
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ST. John Med. Plans, Inc. v. Physician Corp. OF Am. & Alberto Gutman, 711 So. 2d 1329 (Fla. 3d DCA 1998)…8 So. 2d at 500 (citations omitted). Moreover, the fact that a court may deem a pleading to have little prospect of success on the merits is not a sufficient basis upon which to grant a motion to strike. See Reif Dev., Inc. v. Wachovia Mortgage Co., 340 So. 2d 1267, 1268 (Fla. 4th DCA 1976) (citation omitted). Based upon these established standards and our view of the stricken pleadings and the record evidence, we are unable to agree with the lower court’s conclusion that the pleadings are palpably or inhere…
Authorities Cited
- Rhea v. Hackney, 117 Fla. 62 (Fla. 1934)