In Lonestar Alternative Solution, Inc. v. Leview-Boymelgreen Soleil Developers, LLC (3D08-2158), the Third District reversed the trial court and outlined the standard for reviewing a motion to dismiss.
The standard:
A motion to dismiss under rule 1.140(b) tests whether the plaintiff has stated a cause of action, not whether the plaintiff will prevail at trial. Meadows Cmty. Ass’n v. Russell-Tutty, 928 So. 2d 1276, 1280 (Fla. 3d DCA 2006). With respect to a breach of contract claim, an action cannot be dismissed "unless it clearly appears as a matter of law that the contract cannot support the action alleged." Helms v. Gen. Film Dev. Corp., 346 So. 2d 1064, 1065 (Fla. 3d DCA 1977). The trial court is bound by the four corners of the complaint and attachments, and all ambiguities and inferences drawn from "the recitals in the complaint, together with the exhibits attached," must be construed in the light most favorable to the plaintiff. Vienneau v. Metro. Life Ins. Co., 548 So. 2d 856, 858 (Fla. 4th DCA 1989).
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Soleil moved to dismiss first due to the alleged lack of a condition precedent that would trigger Soleil’s obligation to pay (no closing took place), and second because Soleil allegedly could make "material changes" without defaulting. However, these are not arguments attacking the sufficiency of the allegations–they are defenses. When deciding a motion to dismiss, a trial court may not consider affirmative defenses. Susan Fixel, Inc. v. Rosenthal & Rosenthal, 842 So. 2d 204, 206 (Fla. 3d DCA 2003). This was sufficient to deny Soleil’s motion to dismiss.
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