This is the second in a three part series of articles discussing the several varieties of motions to strike available during the litigation of Florida civil cases.
This article addresses motions to strike sham pleadings under Fla. R. Civ. P. 1.150.
The first article addressed motions to strike redundant, immaterial, impertinent, or scandalous matter under Fla. R. Civ. P. 1.140(f).
The third article will address motions to strike legally insufficient defenses under Rule 1.140(b), as well as, less common motions to strike available under different Florida Civil Rules.
Motion to Strike Sham Pleading in Florida Civil Cases under Fla. R. Civ. P. 1.150
Florida’s Civil Rules also allow for a motion to strike “sham” pleadings. A motion to strike a sham pleading is governed by Florida Rule of Civil Procedure 1.150. “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.” Cromer v. Mullally, 861 So. 2d 523, 525 (Fla. 3d DCA 2004).
Specifically, Rule 1.150 states that “[i]f a party deems any pleading or part thereof filed by another party to be a sham, that party may move to strike the pleading or part thereof before the cause is set for trial and the court shall hear the motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken.” Fla. R. Civ. P. 1.150(a).
Rule 1.150 allows for the entire pleading to be stricken, unlike the motion to strike redundant, immaterial, impertinent, or scandalous matters under Rule 1.140(f), which only allows the offending parts of a pleading to be stricken. See Upland Dev. of Cent. Florida, Inc. v. Bridge, 910 So. 2d 942, 945 (Fla. 5th DCA 2005) (“[R]ule 1.150 is the only rule that authorizes the striking of an entire pleading”).
Under Rule 1.150, a party with questionable allegations may be tested before the trial court, locking them into a sworn, sham position early in the case. Alternatively, a Rule 1.150 motion can be dispositive, meaning it could determine the outcome of the case. See Fla. R. Civ. P. 1.150(a) (the remedies of “[d]efault 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.”).
What is the Procedure for Making a Motion to Strike Under Rule 1.150?
Importantly, a motion to strike a sham pleading under Rule 1.150 must be verified (i.e., sworn to) by the moving party. Fla. R. Civ. P. 1.150(b). Failure to do so could lead the court to construe the motion as a motion to strike under Rule 1.140(f). See Dover v. Dover, 241 So. 2d 740, 741 (Fla. 4th DCA 1970). In addition to being verified, a motion to strike a sham pleading “shall set forth fully the facts on which the movant relies and may be supported by affidavit.” Fla. R. Civ. P. 1.150(b).
Moreover, the trial court must hold an evidentiary hearing before deciding a Rule 1.150 motion to strike. See Reyes v. Roush, 99 So. 3d 586, 590-91 (Fla. 2d DCA 2012); Furst v. Blackman, 744 So. 2d 1222, 1224 (Fla. 4th DCA 1999). However, the required evidentiary hearing is not meant to try the issues, but rather determine whether there are any genuine issues to be tried. Cromer, 861 So. 2d at 525. The argument of counsel at such a hearing (or any hearing) is not evidence. Reyes, 99 So. 3d at 590–91. The submission of affidavits does not excuse the requirement for an evidentiary hearing. Sperdute v. Household Realty Corp., 585 So. 2d 1168, 1169 (Fla. 4th DCA 1991).
Finally, in Scarfone v. Silverman, 408 So. 2d 778, 780 (Fla. 2d DCA 1982), the Court concluded that when a party submits any evidence to support his allegations which directly contradicts the other party’s position, the court cannot strike one party’s pleadings simply because the opposing party says they are false.
What is the Standard for a Motion to Strike a Sham Pleading under Rule 1.150?
Generally, the striking of pleadings is not favored and all doubts are to be resolved in favor of the attacked pleadings. Costa Bella Dev. Corp. v. Costa Dev. Corp., 445 So. 2d 1090, 1090 (Fla. 3d DCA 1984). In order to succeed on a motion to strike under Rule 1.150, the movant must demonstrate that the pleading is “a mere pretense, set up in bad faith and without color of fact,” or that it is “inherently false and, based on plain or conceded facts, clearly known to be false at the time the pleading was made.” Sean R. Santini, Motions to Strike Sham Pleadings and Summary Judgment Motions: Is There A Difference?, 77 Fla. B.J. 52 (Oct. 2003).
In Rhea v. Hackney, 157 So. 190, 193–94 (Fla. 1934), the Florida Supreme Court stated: “[A] pleading cannot be stricken out as sham unless the falsity thereof clearly and indisputably appears. … [T]o 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.” See also, Sargent, Repka, Covert, Steen & Zimmet, P.A. v. HAMC Indus., Inc., 597 So. 2d 427, 429 (Fla. 2d DCA 1992).
This is a high standard. Likely for this reason, “[t]his rule is rarely used” and has been described as “a relic of the past.” Reyes, 99 So. 3d at 592 (J. Altenbernd, concurring). As one Court wryly observed: “Having never succeeded, during [22] years of legal practice in Broward County, in obtaining a trial court order granting a Florida Rule of Civil Procedure 1.150(a) motion to strike, I had figuratively relegated that rule to the dusty library shelf alongside the Harvard Classics, as it seemed equally unread and unused. Accordingly, during oral argument, I complimented appellee’s counsel for having apparently obtained such an order in the instant case.” Kay v. Hashemi, 518 So. 2d 950 (Fla. 4th DCA 1988) (J. Glickstein, concurring specially).