MARIO MORIKAWA v. NORBERTO CASTRO

• Court: District Court of Appeal of Florida
• Decided: August 11, 2021
• Docket: 20-1785
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 11, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1785 Lower Tribunal No. 15-9916 ________________

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.