BAY COLONY OFFICE BUILDING JOINT VENTURE, A PARTNERSHIP, ET AL., APPELLANTS,
v.
WACHOVIA MORTGAGE COMPANY, A NORTH CAROLINA CORPORATION, ET AL., APPELLEES
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The Fourth District Court of Appeal reversed the trial court's sua sponte striking of three affirmative defenses because the court lacked authority to strike defenses without a motion and failed to meet the stringent requirements for striking pleadings as redundant or immaterial.
The trial court erred in striking the three affirmative defenses sua sponte. The court may strike defenses only upon a party's motion, and only if they are truly redundant, immaterial, scandalous, or impertinent. The court may not strike a defense merely because it appears legally insufficient or because the defendant may be unable to produce evidence.
[1] A court may strike redundant, immaterial, impertinent, or scandalous matter from a pleading at any time, but only upon a party's motion.
[2] A trial court may not sua sponte strike an affirmative defense for legal insufficiency.
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Join FLexlaw to unlock all legal intelligence“The trial court may not on its own initiative strike an affirmative defense for the reason that it is legally insufficient; in that case a motion by a party is required.”
Establishes that sua sponte striking of defenses is prohibited when based on legal insufficiency; only motions by parties can address this issue.
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Join FLexlaw to unlock all legal intelligenceBay Colony Office Building Joint Venture filed an appeal after the trial court struck affirmative defenses numbered 4, 5, and 6 from their pleading wi…
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[*1006] ALDERMAN, Judge.
After this appeal had been filed, and briefs from both parties received by this court, the appellees gave Notice of Withdrawal of Opposition to Appeal and moved that their own brief be stricken. With the contestants in apparent agreement that the court below should be reversed, we have considered the record carefully and find that we must concur that the trial court erred in striking, sua sponte, three of the appellants’ affirmative defenses.
Because there was no motion to strike the affirmative defenses numbered 4, 5 and 6, the court’s authority to strike was limited to the provisions of Fla.R.Civ.P. 1.140(f):
“Motion to Strike. A party may move to strike or the court may strike redundant, immaterial, impertinent or scandalous matter from any pleading at any time.”
The trial court may not on its own initiative strike an affirmative defense for the reason that it is legally insufficient; in that case a motion by a party is required. Fla.R.Civ.P. 1.140(b). Neither may an affirmative defense be stricken merely because it appears to a judge that the defendant may be unable to produce evidence at trial to sustain such a defense. Windle v. Sebold, 241 So. 2d 165 (Fla. 4th DCA 1970). In the present case, there obviously being no scandalous or impertinent matter, the only possible justification for the trial court’s striking the three affirmative defenses at issue here would be that those defenses were redundant or immaterial. Recalling that the striking of pleadings is not favored and is a drastic action to be used sparingly by courts, and further that any doubts are to be resolved in favor of the attacked pleadings, we conclude that affirmative defenses 4, 5 and 6 in this case were not so entirely without any possible relation to the controversy as to warrant their being stricken. Van Valkenberg v. Chris Craft Industries, Inc., 252 So. 2d 280, 284 (Fla. 4th DCA 1971). Matter should be stricken as redundant or immaterial only if it is wholly irrelevant and can have no bearing on the equities and no influence at all on the decision. Gossett v. Ullendorff, 114 Fla. 159, 154 So. 177 (1934); Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762 (Fla. 4th DCA 1972).
The order from which this appeal is taken is reversed as to the striking of affirmative defenses 4, 5 and 6.
CROSS and LETTS, JJ., concur.
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Am. Salvage & Jobbing Co., Inc. v. Jacque Salomon, 367 So. 2d 716 (Fla. 3d DCA 1979)…been stricken or disregarded in the consideration of the contention that the action had not been diligently prosecuted. See Eastern Elevator, Inc. 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 lac…
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Hulley v. Cape Kennedy Leasing Corp., 376 So. 2d 884 (Fla. 5th DCA 1979)…and appellee’s motion to strike them. Striking of pleadings is not favored and is an action to be used sparingly by the courts, with any doubts to be resolved in favor of the pleadings. Bay Colony Office Bldg. Joint Venture v. Wachovia Mortgage Co., 342 So. 2d 1005 (Fla. 4th DCA 1977). Where, as here, a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike. C & S Realty Investors v. Lastition, 332 So. 2d 357 (Fla. 4th DCA 1976); Pentecostal…
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Costa Bella Dev. Corp. v. Costa Dev. Corp., 445 So. 2d 1090 (Fla. 3d DCA 1984)…since the striking of pleadings is not favored and all doubts are to be resolved in favor of the pleadings, Hulley v. Cape Kennedy Leasing Corp., 376 So. 2d 884 (Fla. 5th DCA 1979); Bay Colony Office Building Joint Venture v. Wachovia Mortgage Co., 342 So. 2d 1005 (Fla. 4th DCA 1977), (4) the trial court’s adjudication of appellees’ counterclaim while an appeal was pending did not [*1091] interfere with this court’s authority to decide the pending appeal since different issues were involved in the respective…
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
- Gossett v. Ullendorff, 114 Fla. 159 (Fla. 1934)
- Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762 (Fla. 4th DCA 1972)
- Windle v. Hermann Sebold and Harriet Sebold, 241 So. 2d 165 (Fla. 4th DCA 1970)
- VAN Valkenberg v. Chris Craft Indus., Inc., 252 So. 2d 280 (Fla. 4th DCA 1971)