Third District Court of Appeal

State of Florida

Opinion filed September 15, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D20-1009

Lower Tribunal No. 15-29669

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Sara Mendez,

Appellant,

vs.

ASI Preferred Insurance Corp.,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Alan Fine 

and Rodolfo Ruiz, Judges.

David B. Pakula, P.A., and David B. Pakula (Pembroke Pines); and 

Perry & Neblett, P.A., and David A. Neblett and James M. Mahaffey, for 

appellant.

Berk, Merchant & Sims, PLC, and Patrick E. Betar and Evelyn M. 

Merchant, for appellee.

Before SCALES, HENDON, and MILLER, JJ. 

HENDON, J.
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The plaintiff below, Sara Mendez, appeals from a (1) final judgment 

entered in favor of the defendant below, ASI Preferred Insurance Corp. 

(“ASI”), following the granting of ASI’s verified motion to strike Mendez’ 

complaint as a sham pleading under Florida Rule of Civil Procedure 

1.150(a) (“Motion to Strike”), and awarding ASI attorney’s fees as a 

sanction under section 57.105(1), Florida Statutes, to be equally paid by 

Mendez and her attorneys; and (2) an order denying Mendez’s Motion to 

Amend/Alter Judgment and/or Request for Rehearing and/or 

Reconsideration Pursuant to Florida Rule of Civil Procedure 1.530, Motion 

to Vacate, and Motion for Sanctions. We affirm.

Mendez contends that her due process rights were violated because 

the hearing on the Motion to Strike was not properly noticed as an 

evidentiary hearing, and therefore the final judgment must be reversed. 

Under the circumstances of this case, we disagree. 

ASI filed a notice of hearing, setting the Motion to Strike for a onehour special set hearing. The notice of hearing, however, did not indicate 

that the hearing would be conducted as an evidentiary hearing. Thereafter, 

ASI filed a motion to allow its representative to attend the special set 

hearing via telephone. The trial court entered an order granting the motion, 

stating that ASI’s representative “may attend or present evidence by 
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telephonic means.” (emphasis added). At the hearing, prior to ASI’s 

representative’s testimony, Mendez’s counsel stated that, based on the 

notice of hearing, he believed that the hearing would be conducted as a 

non-evidentiary hearing. In response, the trial court noted that emails 

between its judicial assistant and the parties’ attorneys reflected that the 

hearing was set as a one-hour evidentiary hearing. Further, ASI’s counsel 

noted, and the parties do not dispute, that rule 1.510(a) provides that the 

trial court must conduct an evidentiary hearing prior to ruling on a motion to 

strike a pleading as sham.1

In arguing that her due process rights were violated, Mendez relies 

on this Court’s decision in Herranz. In Herranz, the defendant, Roberto 

Siam, filed a motion to strike Herranz’s complaint as a sham pleading 

1

 Florida Rule of Civil Procedure 1.150, titled “Sham Pleadings,” provides, 

in relevant part, as follows:

(a) Motion to Strike. If 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 (second emphasis added); see Herranz v. Siam, 2 So. 

3d 1105, 1106 (Fla. 3d DCA 2009) (“Florida Rule of Civil Procedure 1.150 

mandates that, if a party moves before trial to strike a pleading as a sham, 

the trial court must conduct an evidentiary hearing.”). 
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under rule 1.150. Herranz, 2 So. 3d at 1106. The motion to strike was 

noticed to be heard during motion calendar, but the notice of hearing did 

not indicate that the hearing was scheduled as an evidentiary hearing. Id. 

at 1107. The day before the scheduled hearing, Herranz moved to continue 

the hearing and to re-set the hearing as an evidentiary hearing because the 

motion to strike concerned issues that could not be resolved at a motion 

calendar and required an evidentiary hearing. Id. The trial court conducted 

an evidentiary hearing during motion calendar, and thereafter, entered an 

order striking Herranz’s complaint as sham. Id. After conducting the 

hearing, but before entering the order striking the complaint as sham, the 

trial court denied Herranz’s motion to continue the hearing. Id.

On appeal, Herranz argued that the trial court erred in striking his 

complaint as sham because the required evidentiary hearing was not 

properly noticed. Id. This Court agreed with Herranz, reversing the order 

and remanding for the trial court to conduct a properly noticed hearing. In 

doing so, this Court explained the purpose of a motion calendar hearing: 

It is expected that motion calendar hearings are for the purpose 

of resolving matters which require little time and are limited to 

arguments of counsel. While there is nothing to prevent the 

trial court from hearing testimony in uncontested matters, or by 

agreement of all involved, testimony in disputed matters comes 

as a surprise at motion calendar. Accordingly, to avoid 

sandbagging of parties, if the court is to allow testimony in 

disputed motion calendar hearings, specific notice of such 
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intention must be given, with a sufficient interval to prepare and 

adequate opportunity to present contrary testimony prior to 

ruling.

Id. at 1106-07 (quoting Juliano v. Juliano, 687 So. 2d 910, 911 (Fla. 3d 

DCA 1997)).

In Bishai v. Health Law Firm, P.A., 293 So. 3d 1066 (Fla. 5th DCA 

2020), the Fifth District addressed a similar scenario as presented in 

Herranz. In Bishai, Samy F. Bishai, M.D. and Samy F. Bishai, M.D., P.C. 

(collectively, “Bishai”), appealed the order granting The Health Law Firm’s 

motion to strike as sham two counts of Bishai’s counterclaim. Bishai, 293 

So. 3d at 1066-67. The Health Law Firm noticed the motion to strike and 

four other motions to be heard during motion calendar for fifteen minutes 

each. Id. at 1067. The notice of hearing did not indicate that the scheduled 

hearing would be an evidentiary hearing. Id. At the hearing, Bishai 

objected to the evidentiary nature of the hearing. The trial court overruled 

Bishai’s objection, reasoning that because rule 1.150 mandates an 

evidentiary hearing on a motion to strike sham pleadings, Bishai should 

have been on notice that the hearing would be conducted as an evidentiary 

hearing. 

On appeal, the Fifth District Court of Appeal stated it would “decline 

to announce a rule that requires every evidentiary hearing be specifically 
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noticed as such,” id., and reversed based on Herranz, noting that the facts 

in the two cases were “strikingly similar.” Id. In doing so, the Fifth District 

held: “As the Third District Court of Appeal did in Herranz, we find that the 

manner in which [The Health Law Firm] noticed the hearing on [the] motion 

to strike the counterclaim as a sham violated [Bishai’s] due process rights.” 

Bishai, 293 So. 3d at 1067-68. In a footnote, the Fifth District noted: 

Logistically, the parties would be unable to conduct an 

evidentiary hearing on [The Health Law Firm’s] motion to strike 

pleading as a sham within the noticed fifteen-minute timeframe. 

While the allowance of short evidentiary hearings at motion 

calendar varies from judge to judge, most opposing attorneys 

would not expect that instead of hearing five motions, almost 

the entirety of the seventy-five-minute hearing would be utilized 

on just the motion to strike.

Id. at 1067 n.4.

The facts in Herranz and Bishai are distinguishable from the facts in 

the instant case. Here, the hearing on ASI’s Motion to Strike was not held 

during motion calendar. Rather, the Motion to Strike was set to be heard 

during a one-hour special hearing, and email communications between the 

trial judge’s judicial assistant and the parties’ counsels’ office confirmed 

that the hearing would be conducted as an evidentiary hearing. In Bishai, 

the Fifth District noted that, logistically, the parties would be unable to 

conduct an evidentiary hearing on a motion to strike a pleading as sham 

within fifteen minutes. Likewise, there is no need to conduct a one-hour 
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special set hearing on a motion to strike sham pleadings if at that particular 

hearing, the parties’ counsels would only make arguments to the trial court. 

Further, in granting ASI’s motion to allow its representative to appear by 

telephone, the trial court’s order specifically stated that the representative 

“may attend or present evidence by telephonic means.” Under these 

circumstances, Mendez’s due process rights were not violated because 

she was provided with sufficient notice that the trial court would be 

conducting an evidentiary hearing and was provided with sufficient time to 

prepare for such a hearing. 

We have reviewed the remaining arguments raised by Mendez, but 

conclude that they lack merit and do not warrant discussion. Accordingly, 

we affirm the final judgment and order on review.

Affirmed.