Yunger v. Oliver

• Decision Date: 04 January 2002
• Docket Number: No. 5D01-697.,5D01-697.
• Parties: Frank W. YUNGER and Paula G. Yunger, Appellants, v. Buenaventura OLIVER, Appellee.
• Court: Florida District Court of Appeals

803 So.2d 884

Frank W. YUNGER and Paula G. Yunger, Appellants, v. Buenaventura OLIVER, Appellee.

No. 5D01-697.

District Court of Appeal of Florida, Fifth District.

January 4, 2002.

Frank W. Yunger and Paula G. Yunger, Altamonte Springs, pro se.

No Appearance for Appellee.

SAWAYA, J.

Frank and Paula Yunger, pro se, appeal the order striking their counterclaim as a sham pleading in this landlord/tenant dispute. The landlord, Buenaventura Oliver, has not filed an answer brief. Suffice it to say that the Yungers' failure to secure counsel greatly complicated the proceedings below. In any event, our thorough review of the record has revealed no grounds for reversal, and thus we affirm.

In October 1999, the 22 year old central air conditioning unit in the home the Yungers had rented for over three years broke down. After an unsuccessful three days of trying to notify Oliver of the broken air conditioning unit, the Yungers had a licensed professional install a new system at a cost of $1246. Whether the amount the Yungers paid for the unit was reasonable and whether the Yungers could properly deduct the amount they paid from rents due became the crux of a dispute between the parties.

Ultimately, Oliver filed a complaint for eviction and for past due rent. After several hearings, the trial court ordered the Yungers to give up possession by January 31, but acknowledged that all other issues remained pending between the parties. The Yungers did not timely vacate the premises and were angered when Oliver obtained a writ of possession and changed the locks, which act prevented the Yungers from retrieving books they had left in the garage.

After their original counterclaim was dismissed, the Yungers filed an amended counterclaim. The amended counterclaim alleged (1) intentional fraudulent misrepresentation which asserted that in reliance on Oliver's representation that he would immediately make repairs, the Yungers had signed a renewal lease; (2) damages for Oliver's act of preventing the Yungers reasonable access to the dwelling for the month of February; (3) damages for civil theft based on the allegation that Oliver had prematurely entered the property after the court had ordered the Yungers to depart and had obtained some 4000 books valued at $8600 which the Yungers had left behind; (4) reduction of rents and damages for breach of contract based on Oliver's alleged failure to replace the air conditioning unit; and (5) conversion of security deposit.

The trial court rendered an order striking the Yungers' counterclaim as a sham pleading pursuant to Oliver's motion. The court also ordered that Paula Yunger be stricken from the case for failure to appear and failure to be represented by counsel and further ordered that Frank Yunger would have 30 days from the date of the order to reclaim his books, after which time Oliver could dispose of them as he pleased. The Yungers timely filed their notice of appeal from this order.¹

In Destiny Construction Company v. Martin K. Eby Construction, 662 So.2d 388 (Fla. 5th DCA 1995), this court began its analysis of an allegedly sham pleading by addressing the standard by which a pleading challenged as a sham must be tested. It wrote:

Because striking a pleading is an extreme measure, it is not favored in the law. Slatko v. Virgin, 328 So.2d 499, 500 (Fla. 3d DCA 1976). In order to warrant the rejection of a pleading as a "sham plea," the pleading must be a mere pretense, set up in bad faith and without color of fact. Ader v. Temple Ner Tamid, 339 So.2d 268, 270 (Fla. 3d DCA 1976). Accord Meadows v. Edwards, 82 So.2d 733 (Fla.1955)

; Sapienza v. Karland, Inc., 154 So.2d 204 (Fla. 3d DCA 1963). In other words, a plea is considered a sham when it is inherently false and, based on plain or conceded facts, clearly known to be false at the time the pleading was made. Menke v. Southland Specialties Corp., 637 So.2d 285 (Fla. 2nd DCA 1994); West Palm Golf Commission v. Adams, 633 So.2d 568 (Fla. 4th DCA 1994). In ruling upon a motion to strike, the trial court must resolve all doubts in favor of the pleading. Meadows, 82 So.2d at 735. Thus, on review, where there is no showing that a pleading was plain fiction or undoubtedly false, the pleading must be reinstated. Menke, 637 So.2d at 285. Accord Jaruagua Enterprises, Inc. v. Dom, Inc., 339 So.2d 702 (Fla. 3d DCA 1976); Slatko v. Virgin, 328 So.2d 499 (Fla. 3d DCA 1976).

Id. at 390. See also Meadows v. Edwards, 82 So.2d 733, 735 (Fla.1955)

("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.... A motion to strike a pleading as false should not be granted under the circumstances when a motion for a directed verdict or a motion for a summary judgment could not properly be granted. If there is any substantial evidence to support the party against whom the motion is made, then the motion should be denied.").

Although this court has determined the correct standard of review, we find that not every count alleged in the Yungers' counterclaim is susceptible of review at this time. Because Oliver's complaint for eviction and non-payment of rent is still pending, those counts raised in the counterclaim which are inextricably interrelated with the complaint may not be addressed in this appeal. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla. 1974)

(holding that order granting the motion to dismiss counterclaim was not a final appealable order where claims were interrelated and involved the same transaction; noting that any assertions of error in the order may be reviewed on appeal from the final judgment). Only those counterclaims which are not compulsory may now be addressed. S.L.T. Warehouse; Sarasota Cloth Fabric & Foam, Inc. v. Benes, 482 So.2d 574 (Fla. 5th DCA 1986) (dismissing appeal as to those counts of the counterclaim which were dependent upon and arose out of the same contract which the plaintiff had sued upon).² This jurisdictional determination must be made prior to any review of the merits of the Yungers' arguments.

Here, count one (fraudulent inducement to enter the lease), count four (reduction of rents and breach of contract) and count five (return of security deposit) of the counterclaim clearly arose out of the lease agreement and transaction, or, as in the case of count five, raise additional legal rights which otherwise would have laid dormant, and are thus compulsory. Review of the propriety of the striking of these counts must wait until the conclusion of the entire case. S.L.T. Warehouse. The second count of the counterclaim seeking damages for preventing the Yungers from access to the home and the third count of the counterclaim for civil theft for keeping books the Yungers had left in the garage are both permissive counterclaims, the dismissal of which may be addressed in this appeal.

Having determined that only counts two and three raise permissive counterclaims, we now direct our attention to the merits of the dismissal of each of those two counts. It is appropriate to review each permissive count of the counterclaim separately and reverse only those counts of the counterclaim...