RANDY CONTE AND DEBBIE CONTE, HUSBAND AND WIFE, APPELLANTS,
v.
R & A FOOD SERVICES, INC., A DELAWARE CORPORATION, APPELLEE
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The Contes appealed the trial court's dismissal of their breach of contract claim against R & A Food Services. The Florida District Court of Appeal reversed, holding that the trial court improperly considered an affirmative defense (merger) on a motion to dismiss rather than confining its review to the complaint's face.
The trial court erred in dismissing the breach of contract claim because the merger defense did not appear on the face of the complaint and therefore could not properly support a motion to dismiss. A trial court reviewing a motion to dismiss is confined to reviewing the complaint's allegations and may not consider defenses that do not appear on its face.
[1] A complaint is sufficient to state a cause of action if it contains a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.
[2] For the purpose of ruling on a motion to dismiss, all factual allegations in the complaint must be assumed to be true.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“When considering a motion to dismiss, however, a trial court is confined to a review of the allegations of a complaint and may not consider defenses which do not appear on its face.”
Establishes the legal standard that a trial court cannot consider extraneous defenses when reviewing a motion to dismiss—it must limit review to the complaint's face.
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Join FLexlaw to unlock all legal intelligenceThe Contes filed a two-count complaint against R & A Food Services alleging breach of contract (count I) and tortious interference with an advantageou…
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LAZZARA, Judge.
The appellants, Randy Conte and Debbie Conte (the Contes), appeal the trial court’s dismissal with prejudice of count I of their two-count complaint which alleged a breach of contract on the part of appellee, R & A Food Services, Inc. (R & A).1 We conclude that the trial court erred in dismissing count I by improperly considering an affirmative defense raised by R & A in a motion to dismiss. Accordingly, we reverse and remand with directions to reinstate this count.
The trial court dismissed the Contes’ claim for breach of contract based on the defense of merger which R & A raised in support of its motion to dismiss for failure to state a cause of action. See generally Southpointe Dev., Inc. v. Cruikshank, 484 So. 2d 1361 (Fla. 2d DCA), review denied, 492 So. 2d 1330 (Fla.1986) (discussing doctrine of merger). We recognize that Florida Rule of Civil Procedure 1.110(d) permits a pleader to raise an affirmative defense appearing on the face of a complaint as a basis of a motion to dismiss for failure to state a cause of action. E.g., Timmins v. Firestone, 283 So. 2d 63 (Fla. 4th DCA 1973). When considering a motion to dismiss, however, a trial court is confined to a review of the allegations of a complaint and may not consider defenses which do not appear on its face. E.g., Ehmann v. Florida Nat’l Bank at Ocala, 516 So. 2d 1063 (Fla. 5th DCA 1987). Moreover, a complaint need not anticipate affirmative defenses. E.g., Simonin v. Sims, 456 So. 2d 499 (Fla. 4th DCA 1984).
Our review of the complaint and its attachment leads us to conclude that it does not contain sufficient information from which the trial court could have concluded that the doctrine of merger barred the Contes’ cause of action for breach of contract.2 It is apparent, therefore, that the trial court improperly converted R & A’s motion to dismiss into a motion for summary judgment in dismissing this claim with prejudice. See Holland v. Anheuser Busch, Inc., 643 So. 2d 621 (Fla. 2d DCA 1994). This was error requiring us to reverse and remand with directions to reinstate the breach of contract count. Temples v. Florida Indus. Constr. Co., 310 So. 2d 326 (Fla. 2d DCA 1975).
Reversed and remanded with directions.
FRANK, C.J., and PARKER, J., concur. . The trial court also dismissed another party-defendant from the complaint, as well as count II which alleged tortious interference with an advantageous business relationship. The Contes have not appealed these rulings.
. We note that R & A in its brief refers to certain documents which it contends conclusively establish the defense of merger. These documents, however, are not attached or referred to in the Contes' complaint nor are they part of the record.
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Authorities Cited
- Temples v. Fla. Indus. Constr. Co., Inc., 310 So. 2d 326 (Fla. 2d DCA 1975)
- Holland v. Anheuser Busch, Inc., 643 So. 2d 621 (Fla. 2d DCA 1994)
- Timmins v. Firestone, 283 So. 2d 63 (Fla. 4th DCA 1973)
- Southpointe Dev., Inc. v. Cruikshank, 484 So. 2d 1361 (Fla. 2d DCA 1986)
- Simonin v. Sims, 456 So. 2d 499 (Fla. 4th DCA 1984)
- Ward v. State, 516 So. 2d 1063 (Fla. 4th DCA 1987)