SARA MENDEZ v. ASI PREFERRED INSURANCE CORP.
20-1009
| Fla. Dist. Ct. App. | Sep 15, 2021Background
- Plaintiff Sara Mendez appealed a final judgment that (1) granted ASI Preferred Insurance Corp.’s motion to strike Mendez’s complaint as a sham under Fla. R. Civ. P. 1.150 and (2) awarded attorney’s fees under §57.105, to be paid equally by Mendez and her counsel; the appeal also challenged denial of post‑judgment motions.
- ASI noticed the motion to strike for a one‑hour special set hearing; the written notice did not state the hearing would be evidentiary.
- ASI moved to allow its representative to attend by telephone; the court’s order expressly allowed the representative to “attend or present evidence by telephonic means.”
- At the hearing Mendez’s counsel objected, asserting he understood the hearing would be non‑evidentiary; the court relied on email communications between the judge’s judicial assistant and counsel confirming the hearing was set as a one‑hour evidentiary hearing.
- The parties acknowledged Fla. R. Civ. P. 1.150(a) requires an evidentiary hearing before striking a pleading as sham.
- The appellate court affirmed, concluding Mendez received sufficient notice of an evidentiary hearing (distinguishing Herranz and Bishai, which involved motion‑calendar hearings with inadequate notice).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mendez’s due process rights were violated because the hearing was not properly noticed as an evidentiary hearing | Notice did not indicate evidentiary hearing; Herranz requires explicit notice when testimony may be taken | Special‑set scheduling, email confirmations, and court order permitting telephonic evidence put Mendez on notice | Court held no due process violation; parties had sufficient notice of evidentiary hearing |
| Whether the trial court properly granted the motion to strike and imposed fee sanction under §57.105 | Implied challenge to sanction and strike based on defective notice and procedure | Motion to strike was properly heard with evidence; sanction supported | Court affirmed the strike and fee award; remaining arguments lacked merit |
Key Cases Cited
- Herranz v. Siam, 2 So. 3d 1105 (Fla. 3d DCA 2009) (trial court must properly notice evidentiary hearing on a motion to strike sham pleadings; reversing when hearing was at motion calendar without adequate notice)
- Bishai v. Health Law Firm, P.A., 293 So. 3d 1066 (Fla. 5th DCA 2020) (applied Herranz to reverse where motion‑calendar notice and short time slots made evidentiary hearing unfairly surprising)
- Juliano v. Juliano, 687 So. 2d 910 (Fla. 3d DCA 1997) (explains motion calendar is for short, argument‑only matters; testimony in disputed matters requires specific notice)