Schaal v. Race, 2482

• Decision Date: 08 December 1961
• Docket Number: No. 2482,2482
• Citation: 135 So.2d 252
• Parties: Peter SCHAAL, d/b/a Orlando Advertising Co., Appellant, v. Charlie RACE, Appellee.
• Court: Florida District Court of Appeals

Page 252

135 So.2d 252

Peter SCHAAL, d/b/a Orlando Advertising Co., Appellant, v. Charlie RACE, Appellee.

No. 2482.

District Court of Appeal of Florida, Second District.

Dec. 8, 1961.

Robert G. Murrell, Robert Petree, Sam E. Murrell & Sons, Orlando, for appellant.

Harvey Crittenden, Crittenden & Crittenden, Winter Haven, for appellee.

ALLEN, Acting Chief Judge.

Appellant seeks review of a final order entered by the court below dismissing his amended complaint with prejudice. Appellee was defendant below.

Plaintiff filed his original complaint for damages arising out of defendant's refusal to pay for advertising services under an oral contract rendered defendant in connection with his political campaign for Commissioner of Agriculture. Defendant moved to dismiss on the ground that the agreement sought to be enforced is illegal and unenforceable under Chapter 99, F.S.A., and does not state a cause of action for which relief can be granted. Plaintiff moved for summary judgment supported by his own affidavit setting forth essentially the facts alleged in the original complaint. Defendant's motion to dismiss the original complaint was granted with leave to amend, the lower court reserving its ruling on plaintiff's motion for summary judgment. The amended complaint set forth basically the same allegations as the original except that specific references to a political campaign were deleted. Defendant moved to dismiss the amended complaint.

In its final order the lower court dismissed the amended complaint with prejudice stating as its reasons therefor that the alleged agreement set forth in the original complaint was clearly in violation of Chapter 99, F.S.A., and that the amended complaint was essentially the same as the original except that it eliminated reference to services to be furnished plaintiff by defendant as a candidate for Commissioner of Agriculture. The court, referring to the original complaint, the court's order dismissing same and plaintiff's affidavit in support of motion for summary judgment, found that the amended complaint is fictitious, a sham, and molded for the sole purpose of staying in court. The court's order further stated:

'The purpose of pleading is to determine in the suit the real question on controversy. To accomplish this purpose the law favors liberality in amendments to pleadings. This liberality does not mean that a pleader at his convenience may insert or remove an essential element in a suit on a contract, which element materially affects the enforceability of the contract.'

The plaintiff below has assigned as error the granting of the motion to dismiss the original complaint and also the dismissal of the amended complaint.

We shall consider first the decision of the lower court in dismissing the amended complaint as a sham since it was apparent from the record that the amended complaint deleted from the original complaint all references to an election, which showed in the original complaint an illegal contract. Not only did the court have before it the original complaint which showed the true facts in connection with the subject matter of the complaint, but the plaintiff had also filed an affidavit in aid of his motion for summary judgment which set forth the same facts that were included in the original complaint, although the court did not rule on the motion for summary judgment.

In 21 R.C.L., Pleadings, § 17, p. 452, it is stated:

'* * * And so in a case where a denial is contrary to an admission, the admission must prevail, and the denial should be stricken out as sham or irrelevant.'

See Hayward v. Grant, 13 Minn. 165, 97 Am.Dec. 228.

The Florida Supreme Court in Rhea v. Hackney, 117 Fla. 62, 157 So. 190, 193, said:

'A plea is considered 'sham' when it is palpably or inherently false, and from the plain or conceded facts in the case, must have been known to the party interposing it to be untrue. Pleading a matter known by the party to be 'false' for the purpose of delay or other unworthy object, has always been considered a very culpable abuse against justice, and at common law was subject to censure and summary setting aside with costs. 1 Chitty on Pleading (7th Ed.) p. 541; 2 Bouvier's Law Dictionary, p. 680.

'In most jurisdictions a sham pleading may, in a proper case, be struck out on motion. The power is not derived from statute but is inherent in the court. Its exercise is not objectionable as infringing the right of trial by jury, for the right of a defendant to a jury trial depends upon there being a real issue to be tried. The court has power to determine as a matter of judicial cognizance whether there is such an issue, and whether an ostensible issue is in reality fictitious and sham, though the court does not have power to try the issue if there is one in truth as well as in form.

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'A 'sham' plea is one good on its face but absolutely false in fact. A 'frivolous' plea is one which on its face plainly sets up no defense, although it may be true in fact. One is as objectionable as the other in frustrating the orderly administration of justice. * * * Hence it is a judicial prerogative inherent in a court to strike out pleadings that are either sham or frivolous. * * *'

In the case of Meadows v. Edwards, Fla.1955, 82 So.2d 733, 735, the Supreme Court, in an opinion by Justice Barns, stated:

'In order to justify the striking of a pleading for being sham or false it must be so undoubtedly false as not to be subject to a genuine issue of fact. The motion should be tested by the same standards as a motion for a summary judgment in the following respects. Such procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact and the term 'genuine issue' is not meant to be necessarily confined to a pleading or paper issue. To use the language of Judge Cardozo, later Justice, made in reference to the law applicable to motions for summary judgment, 6 Moore's Federal Practice 2d 2028, to the effect that the very object of a motion for judgment because of sham pleadings 'is to separate what is formal or pretended in denial or averment from what is genuine or substantial, so that only the latter may subject a suitor to the burden of trial.' * * *'

We hold that the lower court was justified in dismissing the amended complaint as a sham in view of the record in the case then before him.

When questioned by the court, the attorney for the appellant-plaintiff answered frankly that it would serve no purpose to overrule the lower court on dismissing the amended complaint as the data eliminated from the original complaint would necessarily be brought out in a trial of the case and that the real question with which they were concerned was whether or not the court erred in dismissing the original complaint because the indebtedness incurred violated the corrupt practice provisions of Florida's election code.

The circuit Court of Hillsborough County upheld the constitutionality of Chapter 99, F.S.A., in the case of Smith v. Ervin. The Supreme Court in Smith v. Ervin, Fla.1953, 64 So.2d 166, 168, quoted copiously from the opinion and decision of the late Circuit Judge Henry C. Tillman, who was the lower court judge, as follows:

'The learned Chancellor who heard and decided this case wrote an able opinion. Pertinent portions of the opinion are:

"This case involves the constitutionality of a part of what has come to be known as The Election Code, which was enacted as Chapter 26870, the laws of Florida 1951, the codification of which is Section 99.061, which is a section dealing with contributions to candidates, expenditure of campaign funds, and the filing of reports in relation thereto. Subsections (4)(a) and (7) of Section 99.161 are as follows:

"'(4) Campaign Treasurer in Charge of Funds: Time Limit.----

"'(a) No contribution or expenditure of money or other thing of value, nor obligation therefor, shall be made, received, or incurred, directly or indirectly, in furtherance of the candidacy of any candidate for political office in the State of Florida except through the duly appointed campaign treasurer or deputy campaign treasurers of the candidate.

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"'(7) Written Authorization of Expenditure Required.----

"'No expenses shall be incurred by any candidate for election or nomination to political office, or by any person, corporation, or association in his behalf, or in furtherance or aid of his candidacy, unless prior to the incurring of the expense a written order shall be made in and upon the form prescribed, and signed by the campaign treasurer of the candidate authorizing the expenditure, and no money shall be withdrawn or paid by any campaign depository from any campaign fund account except upon the presentation of the written order, so signed, accompanied by the certificate of the person claiming the payment, which certificate shall state that the amount named in the order, or such part thereof as may be claimed, naming the amount claimed, is justly due and owing to the claimant, that the order...