NOTICE OF FILING SUPPLEMENTAL AUTHORITY

Transcription

1 Electronically Filed i 1/12/ :27:04 AM ET RECEIVED, 11/12/ :28:41, John A. Tomasino, Clerk, Supreme Court BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA INQUIRY CONCERNING A JUDGE No SCl LAURA M. WATSON NOTICE OF FILING SUPPLEMENTAL AUTHORITY COMES NOW Judge Watson and files this Notice of Supplemental Authority in support of her position that a motion to strike can not be directed to another motion but only to a pleading. The case of Motzer v. Tanner, 561 So.2d 1336, 1338 (Fla. 5th DCA 1990), is attached to this notice. Respectfully submitted, The Honorable Laura M. Watson Circuit Judge, 17th JudiCial CirCuit Room 1005B 201 SE 6th Street Fort Lauderdale, Florida Tel.: (954) jwatson@l 7th.ficourts.org /s/ Laura M. Watson LAURA M. WATSON Florida Bar No.:

2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by to: Miles A. McGrane, III, Esq. miles a meuranelaw.com lisa'a meuranelaw.com The McGrane Law Firm, Special Counsel, One Datran Center, Ste. 1500, 9100 South Dadeland Boulevard, Miami, Florida ; Lauri Waldman Ross, Esq. RossGirtenn Laurilaw.com Counsel to the Hearing Panel of the JQC, Ste. 1612, 9100 South Dadeland Boulevard, Miami, Florida ; Michael L. Schneider, Esq. mschneider a noridaige.com General Counsel, 1110 Thomasville Road, Tallahassee, Florida 32303; Robert A. Sweetapple, Esq. and Alexander D. Varkas, Jr., pleadinus a sweetapplelaw.com Sweetapple, Broeker & Varkas, PL, 165 East Boca Raton Road, Boca Raton, Florida 33432, this 12th day of November, Pursuant to FJQCR Rule 10(b) a copy is furnished by to: The Honorable Kerry I. Evander, evanderkra neourts.ora, Chair of the JQC, 300 S. Beach Street, Daytona Beach, FL /s/ Laura M. Watson LAURA M. WATSON

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4 Wesuaw Page So.2d 1336, 15 Fla. L Weekly Dl486 (Cite as: 56I So.2d 1336) C District Court of Appeal of Florida. Fifth District. W Judgment ''N Judgment Sl\ By Default Donald MOTZER. et ux_ Appellants. \j Requisites and Validity v. Nk I W Operation and Effect of Default Anthony TANNER, et ux.. Appellees. "Sk I I 3 k. Right to Notice of and Participation in Subsequent Proceedings. \lost Ched No May 31, Since motion to dismiss constituted "paper, movants were entitled to notice of application for Plaintiffs in propenv dispute appealed from. default. \\esh I i\. R(+ Rule 13nn judgment entered m the Circuit Court for Citrus County. William F. Edwards. J., on counterclaim tiled by defendants. The District Court of Appeal Daniel 131 Pretrial Procedure 307A 563 C J., held that: (l) plaintiffs' motion to dismiss counterclaim was not "pleading" that could be subject of Ju~ \ Pretrial Procedure motion to strike; (2) plaintiffs' motion to dismiss was 3ni\lli Dismissal "paper" and plaintiffs were entitled to notice of de- Ju~.\lll(H) Involuntary Dismissal fendants' application for default; and (3) judgment 30 \llh.b GroundsinGeneral could not be upheld as sanction against plaintiffs for 30-5\k5p3 k. Disobedience to Order of tiling "sham" motion to dismiss. Court or Other Misconduct. \1ost ( ited ( ases Reversed and remanded. W Pleading West Headnotes Default and summary judgment against counter defendants could not be upheld as sanction for their filing "sham" motion to dismiss counterclaim since counter defendants did not disobey court order and there was no record evidence of bad faith or willful disregard of court's authority. Ju] Pleading. *1337 Charles P. Horn. Hawkes & Horn, Crystal u \\ l Motions ;u2k35 I Striking Out Pleading or Defense River, for appellants. lo2k 15: k. In General. \1osi ( ited (¼es Georee.\. Routh. Clearwater. for appellees. Motion to dismiss was not "pleading" (sham or otherwise) that could be subject of motion to strike. DANIEL ChiefJudge. \\ e,n 1. \. R( F Rule 1.l5n. Donald and Nelly Motzer, the plaintitts below, appeal a judgment entered against them on the coun Thomson Reuters. No Claim to Orig. US Gov. Works.

5 Page So.2d 1336, 15 Fla. L. Weekly Dl486 (Cite as: 561 So.2d 1336) terclaim filed by Anthony and Marglen Tanner, the defendants below. The Motzers contend that the trial court erred in striking their motion to dismiss the counterclaim and in entering a default and summary judgment against them. We agree and accordingly reverse and remand for further proceedings. On June 16, 1989, the Motzers filed a complaint against the Tanners for breach ofa real estate contract. The Motzers alleged that they had entered into an agreement with the Tanners for the conveyance of real property and that the Tanners had willfully refused to comply with the terms of the contract. On June 29. the Tanners filed an answer denying the relevant allegations. The Tanners also filed a counterclaim which alleged that the Tanners had assigned their interest in a residential lease on the propeny to the Motzers for S and that the Motzers had only paid $25,000. Accordingly, the Tanners requested judgment in the amount of $51,000. The Motzers moved to dismiss the Tanners' counterclaim on the grounds that it was neither a permissive nor a compulsory counterclaim and that a separate action should be filed. The Tanners filed a motion to strike the Motzers' motion to dismiss on the basis that it was a sham pleading. The Tanners asserted that their counterclaim was compulsory and that the Motzers' motion to strike was made solely for the purposes of delay. After a hearing was held, the trial court entered an order granting the Tanners' motion to strike. The court also entered a default and summary judgment on the merits against the Motzers on the Tanners' counterclaim. Judgment against the Motzers in the amount of $51,000 plus attomey's fees was later entered. [1J On appeal, the Motzers contend that the trial court erred in striking their motion to dismiss the Tanners' counterclaim as a sham pleading because their motion is not a pleading. We agree. Florida Rule olliv il Procedure I.lM provides as follows: *1338 (a) Motion to Strike. If a party deems any pleading or part thereoffiled 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. (emphasis added) Although commonly employed, the use of the term "pleading" to describe all of the various papers filed in an action is incorrect. "A pleading seeks to frame factual issues for determination. This is the meaning when the term pleading is used in the Rules of Civil Procedure... Motions are not pleadings." Trawick, Florida Practice and Procedure, 6- L p. 65 (1989 ed.) Trawick also notes that motions cannot be directed against other motions. Id. at 10-2, p Accordingly, the Tanners' use of a motion to strike the Motzers' motion to dismiss as a sham pleading was improper. PJ The Motzers also contend that the entry of default and summary judgment without notice was error. Ruje _]._5u0 governs defaults and judgments thereon: (b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court. the court may enter a default against such party; provided that ifsuch party has filed or served any paper in the action. he shall be served with notice of the application for default. (emphasis added) 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

6 Page So.2d 1336, 15 Fla. L. Weekly Dl486 (Cite as: 561 So.2d 1336) Here the Motzers filed a "paper" (the motion to Fla.App. 5 Dist dismiss) and therefore they were entitled to notice of Motzer v. Tanner any application for default. See (iu0 \/<wumm a 561 So.2d Fla. L. Weekly Dl486 Nuj> >!n inc v Harn u llanl 9} No.2d 8) ) f ]a 1L\ 989) (although the mere filing of an appearance END OF DOCU MENT solely as a delaying tactic is improper.. notice of an application for default is nonetheless required once such notice of appearance has been filed): ( nn ur licucral ikvel~tuncut < rjwrruwn v (ins d So.2d M5 522la5th DC\ 1985) (defendants, having originally filed an answer which was stricken with leave to amend. were entitled to service of a copy of the plaintiffs motion for default). Since the Motzers did not receive the required notice, we reverse the entry of the default and summary judgment against them. pj The Tanners' argument that the judgment can be upheld as a sanction against the Motzers for filing a "sham" motion to dismiss is without merit. The cases relied on by the Tanners involve sanctions for discovery violations. For example. in ilcrar r Raum W So.2d 911 (I la.1983j, the Florida Supreme Court recognized that the striking of pleadings or the entering of a default for non-compliance with an order compelling discovery is the most severe of all sanctions, which should be employed only in extreme circumstances. However, "a deliberate and contumacious disregard of the court's authority will justify application of this severest of sanctions... as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness. m so.2d at 946. Here the Motzers did not disobey a court order and there is no record evidence of a bad faith or willful disregard of the court's authority. Thus, the judgment in favor of the Tanners cannot be upheld as a sanction. REVERSEDandREMANDED. (K )51l()R\ and II \RRIS. JJ., concur Thomson Reuters. No Claim to Orig. US Gov. Works.