PATRIOTCOM, INC., APPELLANT,
v.
RICHARD L. VEGA AND JOSEPH KOHUT, APPELLEES
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PER CURIAM.
We reverse the order of dismissal because the trial court went beyond the four corners of the complaint in determining the motion to dismiss. In particular, the trial court considered corporate documents not attached to the complaint and an improperly raised affirmative defense in appellee’s motion to dismiss. It is well settled that it is error for a court to grant a dismissal based upon factual evidence not contained in, and contradictory to, the complaint’s allegations. See Barbado v. Green & Murphy, P.A., 758 So. 2d 1173, 1174 (Fla. 4th DCA 2000). It is also well settled that an affirmative defense cannot be raised in a motion to dismiss, unless the defense appears upon the face of a prior pleading. See id.; accord Ramos v. Mast, 789 So. 2d 1226, 1227 (Fla. 4th DCA 2001). Here, the motion to dismiss asserted a defense, lack of authority to bring the action, that had not been pled, did not appear on the face of the complaint, and was contrary to the complaint’s allegations. See Beach Roundhouse Town Corp. v. Skinner, 356 So. 2d 881, 881-82 (Fla. 3d DCA 1978).
Reversed.
WARNER, GROSS and HAZOURI, JJ., concur.
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Pac. Ins. Co., Ltd. v. George Botelho, D.O., 891 So. 2d 587 (Fla. 3d DCA 2004)…otion for summary judgment, when ruling on a motion to dismiss, “[a] court may not go beyond the four corners of the complaint in considering the legal sufficiency of the allegations.” Barbado, 758 So. 2d at 1174; see also Patriotcorn, Inc. v. Vega, 821 So. 2d 1261 (Fla. 4th DCA 2002). Further, a motion to dismiss cannot be granted based on an affirmative defense unless the defense appears upon the face of a pleading. Ramos v. Mast, 789 So. 2d 1226 (Fla. 4th DCA 2001); Beach Roundhouse Town Corp. v. Skinner, 3…
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Swerdlin v. Fla. Mun. Ins. Tr., 162 So. 3d 96 (Fla. 4th DCA 2014)…its attachments, and instead opens the door for a court to consider additional factual allegations contained in the motion to dismiss, a counterclaim, and their attachments. The defendant’s argument wholly lacks merit. See Patriotcom, Inc. v. Vega, 821 So. 2d 1261, 1261 (Fla. 4th DCA 2002) (“It is well settled that it is error for a court to grant a dismissal based upon factual evidence not contained in, and contradictory to, the complaint’s allegations.”); Fla. Farm Bureau Gen. Ins. Co. v. Ins. Co. of N. Am.…
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Subic BAY Marine Exploratorium, Inc. v. JV China, Inc., 257 So. 3d 1139 (Fla. 5th DCA 2018)…not rule on this issue. Therefore, we do not consider this argument on appeal. However, we note that generally, lack of authority must be asserted as an affirmative defense unless apparent on the face of the complaint. See Patriotcom, Inc. v. Vega, 821 So. 2d 1261, 1261 (Fla. 4th DCA 2002).…
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- Barbado v. Green & Murphy, P.A., 758 So. 2d 1173 (Fla. 4th DCA 2000)
- Ramos v. Mast, 789 So. 2d 1226 (Fla. 4th DCA 2001)
- Graham v. State, 356 So. 2d 881 (Fla. 3d DCA 1978)
- Beach Roundhouse Town Corp. v. Skinner, 356 So. 2d 881 (Fla. 3d DCA 1978)