DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL GLEMAN,
Appellant,
v.
MWH AMERICAS, INC., a foreign Limited Liability Corporation, JACK
McDONALD, ADAM WARD, STANTEC CONSULTING INTERNATIONAL,
LLC, a foreign Limited Liability Company, HINTERLAND GROUP, a
Florida for profit corporation, and DAN DUKE,
Appellees.
Nos. 4D19-2280 and 4D19-2923
[January 6, 2021]
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Lisa S. Small, Judge; L.T. Case No. 50-2018-
CA-010810-XXXX-MB.
Jennifer S. Carroll of the Law Offices of Jennifer S. Carroll, P.A.,
Jupiter; and Isidro M. Garcia of the Garcia Law Firm, P.A., West Palm
Beach, for appellant.
C. Ryan Jones, Scot E. Samis and Richard A. Jarolem of Traub
Lieberman Straus & Shrewsberry LLP, St. Petersburg, for appellees MWH
Americas, Inc., a foreign Limited Liability Corporation, Jack McDonald,
Adam Ward, and Stantec Consulting International, LLC, a foreign Limited
Liability Company.
Andrew A. Harris of Harris Appeals, P.A., Palm Beach Gardens; and
Ryan J. Wynne of Slinkman, Slinkman & Wynne, P.A., Jupiter, for
appellees Hinterland Group, a Florida for profit corporation, and Dan
Duke.
CIKLIN, J.
The appellant, Michael Gleman (plaintiff below), brings these
consolidated appeals that involve the dismissal of Gleman’s complaint,
which the trial judge found to be a sham and, effectively, a fraud on the
court. The dismissals were based on purported conflicts between (1)
Gleman’s allegations contained in the complaint and (2) assertions made
by Gleman in an earlier suit (not involving the same defendants). We find
the trial court erred and we reverse for further proceedings.
After Gleman was suspended from his employment with the Palm
Beach County Board of County Commissioners (“the county”), purportedly
for making false statements during a meeting, he sued the county, alleging
the suspension was based on his whistleblowing activities. The county
then terminated his employment, maintaining that it had received
complaints from contractors regarding Gleman’s unsatisfactory job
performance. Gleman amended his complaint to include the termination,
and he alleged the termination was based on further whistleblowing
activities that occurred after his suspension.
Ultimately, the county agreed to pay Gleman a significant sum of money
to settle the case, and the suit was dismissed. The release executed
pursuant to the settlement agreement provided that the “release shall NOT
operate to bar any potential claim against any third party who has or had
a contractual relationship with the County, or the employees of said
parties, including MWH Global, now part of [Stantec], and Hinterland
Group, Inc.”
Gleman then sued the appellees, MWH Americas, Inc., Jack McDonald,
Adam Ward, Stantec Consulting International, LLC, Hinterland Group,
and Dan Duke (collectively, “the defendants”) for tortious interference with
a business relationship. In his complaint, Gleman disclosed that he had
brought a whistleblower complaint against the county, “claiming that he
was first suspended, then terminated, for making protected disclosures or
otherwise participating in activities protected by law” and that the suit was
settled. He alleged that the county’s purported reason for suspending and
ultimately terminating his employment was his unsatisfactory job
performance, as charged by the defendants in communications they had
with the county. He further alleged that, consistent with his job duties,
he had objected to some of the payments requested by the defendants
because they were improper, and that some payments were delayed for
reasons not related to Gleman’s satisfactory job performance. Gleman
alleged that the defendants’ communications to the county were “without
justification, for the express purpose of undermining his status and
interfering in his employment” with the county and that “[a]s a result of
said conduct, [Gleman] was terminated from his employment, and suffered
damages.”
Hinterland Group and Dan Duke moved to dismiss the suit for fraud,
or in the alternative, to strike the pleading as a sham. The remaining
defendants moved to dismiss or strike the complaint as a sham pleading.
2
All defendants asked the trial court to take judicial notice of the filings in
the first suit, including the pleadings, Gleman’s deposition, and a
transcript of the pre-termination hearing, among other things. The crux
of the motions was that Gleman’s allegations of causation in the two suits
were in direct conflict: If he was terminated based on his whistleblowing
activities, he could not have been terminated based on the defendants’
complaints of his unsatisfactory job performance.
The trial court agreed with the defendants, finding that they
“demonstrated by clear and convincing evidence that this complaint is a
sham, and that the actions of [Gleman] set in motion some unconscionable
scheme calculated to interfere with the judicial system’s ability to
impartially adjudicate the matter by improperly influencing the trier of fact
or unfairly hampering the presentation of the opposing party’s claim or
defense.” The trial court dismissed the case with prejudice and entered
final judgments in favor of the defendants.
We must find the trial court erred in dismissing the suit based on
findings that it constituted a sham pleading and a fraud on the court.
Pursuant to Florida Rule of Civil Procedure 1.150, a trial court may strike
a pleading as a sham. But “[b]ecause striking a pleading is an extreme
measure, it is disfavored in the law.” Upland Dev. of Cent. Fla., Inc. v.
Bridge,
910 So. 2d 942, 944 (Fla. 5th DCA 2005).
A pleading is considered a sham only “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.” Rhea v. Hackney,
157 So. 190, 193 (Fla. 1934). Thus
a sham pleading is one “good on its face but absolutely false
in fact.”
Id. at 194.
For a trial court “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.” Meadows v. Edwards,
82 So. 2d 733, 735 (Fla. 1955). The motion to strike a
pleading as being a sham “should be tested by the same
standards as a motion for a summary judgment . . . .”
Id. For
a trial court to strike a pleading as a sham the “falsity thereof
[must] clearly and indisputably appear[]. . . . [I]t must
evidently be a mere pretense set up in bad faith and without
color of fact.” Rhea,
157 So. at 193. Finally, “[i]n reviewing a
motion to strike a pleading as sham all doubts are to be
resolved in favor of the pleading.” Furst v. Blackman,
819 So.
2d 222, 225 (Fla. 4th DCA 2002).
3
Bornstein v. Marcus,
169 So. 3d 1239, 1242 (Fla. 4th DCA 2015)
(alterations in original).
As is the case in summary judgment proceedings, “[a] hearing on a
motion to strike pleadings . . . is not to try the issues, but to determine
whether there are any genuine issues to be tried.” Sunex Int’l. Inc. v.
Colson,
964 So. 2d 780, 782 (Fla. 4th DCA 2007) (quoting Meadows,
82
So. 2d at 735). “The fact that a court may perceive little prospect in the
success of an alleged sham proceeding is not a sufficient ground to grant
a motion to strike the pleading.”
Id. (quoting Cromer v. Mullally,
861 So.
2d 523, 525 (Fla. 3d DCA 2003)).
A dismissal for fraud “may be imposed only on a ‘clear showing of fraud,
pretense, collusion, or similar wrongdoing.’” Cherubino v. Fenstersheib &
Fox, P.A.,
925 So. 2d 1066, 1068 (Fla. 4th DCA 2006) (quoting Bob
Montgomery Real Estate v. Djokic,
858 So. 2d 371, 374 (Fla. 4th DCA
2003)). Due to the extreme remedy of dismissal, “the fraud must be
demonstrated by clear and convincing evidence.” Id. at 1068-69 (quoting
Arzuman v. Saud,
843 So. 2d 950, 952 (Fla. 4th DCA 2003)). The movant
must show that “a party has sentiently set in motion some unconscionable
scheme calculated to interfere with the judicial system’s ability impartially
to adjudicate a matter by improperly influencing the trier of fact or unfairly
hampering the presentation of the opposing party’s claim or defense.”
Id.
at 1069 (quoting Cox v. Burke,
706 So. 2d 43, 46 (Fla. 5th DCA 1998)).
Here, when the allegations of the tortious interference suit are read in
their entirety, Gleman’s allegations of causation are ambiguous and thus
not necessarily incompatible with the assertions of causation he made in
the first suit. Read one way, Gleman could be alleging that he was
terminated based solely on the defendants’ complaints regarding his job
performance. Such an allegation would be at odds with Gleman’s
assertions throughout the first suit that he was fired solely for his
whistleblowing activities. However, when all of the allegations of the
tortious interference suit are read together, Gleman seemed to be alleging
that the defendants acted vindictively because he stood in the way of their
attempt to improperly bill the county, and that because of their ill will
toward Gleman, they made unjustified complaints about Gleman’s job
performance, which the county used as cover for its actual reason for the
termination of Gleman’s employment—his whistleblowing activities. This
is not clearly articulated in the pleading, but it is suggested. Additionally,
Gleman’s counsel explained the causation theory during one of the
hearings and in his responses to the defendants’ motions.
4
The defendants compare this case to Bailey v. State Farm Mutual
Automobile Insurance Co.,
789 So. 2d 1181, 1182 (Fla. 4th DCA 2001), a
case where two lawsuits arose out of a collision between an automobile
and a motorcycle on which the complainant was a passenger. In the first
suit, the complainant had taken the position that the accident was not
caused by the driver of the motorcycle, her significant other, and that the
driver of the automobile caused the collision. Id. at 1183. The case was
settled. Id. at 1182. In the second suit, the complainant alleged that both
the driver of the motorcycle and the driver of the automobile were at fault.
Id. The appellate court affirmed the summary judgment entered in favor
of the insurance company based on equitable estoppel. Id. at 1183.
This case is distinguishable in two respects. First, this is not a case
where the allegations in the subsequent suit are unambiguous and directly
at odds with the allegations of the first suit. Second, the issue raised in
this case is whether Gleman’s pleading constituted a sham or fraud on the
court, not whether a summary judgment was justified based on estoppel
principles.
At bottom, given the ambiguity in Gleman’s pleading, the defendants
did not establish that Gleman’s tortious interference suit was “palpably or
inherently false.” Nor did they demonstrate that Gelman “sentiently set in
motion some unconscionable scheme calculated to interfere with the
judicial system’s ability impartially to adjudicate a matter by improperly
influencing the trier of fact or unfairly hampering the presentation of the
opposing party’s claim or defense.” To the extent the litigation below
suggests the possibility of procedural bars to bringing suit and possible
defenses, the trial court should be the court of first instance to adjudicate
any such issues if they are properly raised. The only issue raised in this
appeal—and thus the only one we entertain—is whether the trial court
erred in finding the pleading amounted to a sham and a fraud on the court.
Based on the foregoing, we reverse and remand for further proceedings.
Because we reverse, Gleman’s other arguments on appeal are moot and
need not be addressed.
Reversed and remanded for further proceedings.
GROSS and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
5
