Third District Court of Appeal
State of Florida
Opinion filed August 11, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1785
Lower Tribunal No. 15-9916
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Mario Morikawa,
Appellant,
vs.
Norberto Castro, et al.,
Appellees.
An appeal from the Circuit Court for Miami-Dade County, Mark
Blumstein, Judge.
Ivan A. Guerrero, LLC, and Ivan A. Guerrero, and Juan C. Mercado,
for appellant.
No appearance for appellees.
Before FERNANDEZ, C.J., and LINDSEY, and MILLER, JJ.
MILLER, J.
Appellant, Mario Morikawa, challenges an order dismissing his
counterclaim against appellee, Norberto Castro. 1 On appeal, Morikawa
contends the lower tribunal erred in dismissing the action on its own initiative
for failure to comply with the Florida Rules of Civil Procedure. Having
carefully reviewed the record, we affirm in part and reverse in part. 2
BACKGROUND
In the aftermath of a commercial transaction, Castro filed suit against
Morikawa, alleging breach of contract, fraudulent inducement, and
conversion. So began a procedural quagmire spawned by substantial
delays, a series of pleadings, and a succession of trial court judges. We
recite only the facts relevant to our analysis.
Morikawa moved to dismiss the complaint, and Castro was granted
leave to file an amended complaint. Morikawa then filed a motion to dismiss
the amended complaint. By way of a contemporaneously filed separate
document, he also asserted a lengthy counterclaim and crossclaim.
1
We have jurisdiction. See Johnson v. Allen, Knudsen, DeBoest, Edwards
& Rhodes, P.A.,
621 So. 2d 507, 509 (Fla. 2d DCA 1993) (“The dismissal of
a compulsory counterclaim with prejudice is not considered a final disposition
and is, thus, not appealable until a final disposition of the original cause has
obtained on the merits.”) (citations omitted).
2
Castro was precluded from filing an answer brief in this appeal.
2
Castro moved to strike or dismiss the counterclaim, asserting it was
improperly filed in the absence of a responsive pleading. Morikawa then
withdrew his motion to dismiss, and, despite agreeing to serve a responsive
pleading within a fixed time, filed a successive dismissal motion, complete
with a 306-paragraph answer, counterclaim, and crossclaim, bearing more
than a few isolated hallmarks of a “shotgun pleading.”
Castro filed a motion to dismiss the first count of the counterclaim and
concurrently filed an answer. The court denied the motion, but, inscrutably,
without striking the answer to the counterclaim and in the absence of any
motion requesting such relief, ordered Castro to file an amended answer to
the counterclaim.
Meanwhile, Castro amended his complaint three more times,
culminating in the fourth amended complaint, which Morikawa sought to
dismiss. The trial court dismissed all counts of the fourth amended
complaint, save one, and allowed ten days leave to amend, if desired.
After various procedural events not germane to this appeal, Morikawa
moved for a default on the counterclaim. A successor judge conducted a
hearing, denied entry of default, ostensibly because the answer remained of
record, and struck the counterclaim by way of a perfunctory order referencing
noncompliance with the Florida Rules of Civil Procedure. Morikawa
3
unsuccessfully sought reconsideration, and several weeks later, the trial
court dismissed the case in its entirety. The instant appeal ensued.
ANALYSIS
Morikawa correctly posits that “[w]hen a trial judge sua sponte
dismisses a cause of action on grounds ‘not pleaded,’ the trial judge denies
the parties due process because the claim is being dismissed without ‘notice
and an opportunity for the parties . . . to be heard.’” Barile v. Gayheart,
80
So. 3d 1085, 1087 (Fla. 2d DCA 2012) (citation omitted) (quoting Liton
Lighting v. Platinum Television Grp., Inc.,
2 So. 3d 366, 367 (Fla. 4th DCA
2008)); see Hancock v. Tipton,
732 So. 2d 369, 372 (Fla. 2d DCA 1999)
(“Where an order adjudicates issues neither presented by the pleadings nor
litigated by the parties, it denies fundamental due process and must be
reversed.”) (citation omitted); see also Sanchez v. LaSalle Bank Nat'l Ass'n,
44 So. 3d 227, 228 (Fla. 3d DCA 2010) (“A trial court . . . should not strike a
pleading sua sponte on the ground that it is legally insufficient.”) (citation
omitted). In the instant case, however, Castro urged dismissal through two
separately filed motions. As it is well-established a trial court may revisit an
interlocutory order at any time before entry of judgment, we examine whether
the grounds asserted in the motions justified dismissal. See Benzrent 1, LLC
4
v. Wilmington Sav. Fund Soc'y, FSB,
273 So. 3d 107, 110 (Fla. 3d DCA
2019).
In his first motion, Castro argued Morikawa impermissibly filed a “stand
alone” counterclaim, in the absence of an answer. While there is a well-
reasoned body of persuasive legal authority suggesting it is improper to file
a counterclaim in the absence of a pleading, and that is just what Morikawa
did at the inception of the case, any deficiency was rendered moot by the
subsequent filing of the hybrid pleading containing both an answer and
counterclaim in response to the amended complaint. See Henry P. Trawick,
Trawick’s Florida Practice and Procedure § 13:1 (2020-2021 ed.)
(“Counterclaims, counterpetitions and crossclaims are the part of an answer
that seeks affirmative relief. The principles applicable to pleadings seeking
affirmative relief . . . apply to those served by defending parties.”); see also
Bernstein v. IDT Corp.,
582 F. Supp. 1079, 1089 (D. Del. 1984) (applying
Rule 13(a) and 7(a) of the Federal Rules of Civil Procedure as requiring
counterclaims to be raised in either a complaint or answer); Cornell v. Chase
Brass & Copper Co.,
48 F. Supp. 979, 980 (S.D.N.Y. 1943) (finding “only an
answer may contain a counterclaim”).
In his second motion, Castro contended certain allegations in the
counterclaim were repugnant to an appended and incorporated document.
5
See Fla. R. Civ. P. 1.130; Ginsberg v. Lennar Fla. Holdings, Inc.,
645 So. 2d
490, 494 (Fla. 3d DCA 1994) (“Exhibits attached to the complaint are
controlling, where the allegations of the complaint are contradicted by the
exhibits, the plain meaning of the exhibits will control.”) (citations omitted).
Although well-taken, the motion was only directed at the first count of the
counterclaim. Thus, neither motion provided a basis for dismissal of the
counterclaim in its entirety.
While cognizant of the fact the counterclaim failed in brevity and the
stream of motions served to further obfuscate an existing morass, we are
constrained to impute error in the dismissal of the entire action “without at
least affording [Morikawa] notice and an opportunity to be heard,” or an
opportunity to correct any deficiencies. Wells Fargo Bank, N.A. v. Giesel,
155 So. 3d 411, 412-13 (Fla. 1st DCA 2014) (citation omitted). Accordingly,
we affirm the dismissal of count one and reverse the dismissal of the
remaining counts of the counterclaim.
Affirmed in part, reversed in part, and remanded.
FERNANDEZ, C.J., concurs.
LINDSEY, J., concurs in result only.
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