Order Merely Granting Motion To Dismiss Is Not Appealable

In Munguia v. Miami-Dade County School Board (3D11-2566), the Third District denied a motion to dismiss and again stated the rule that an order that merely grants a motion to dismiss is not appealable. The opinion stated:

The lower court order of July 16, 2009, which merely 'granted' a motion to dismiss, was not an appealable final judgment, see Gries Inv. Co. v. Chelton, 388 So. 2d 1281, 1282 (Fla. 3d DCA 1980); Donnell v. Indus. Fire & Cas. Co., 378 So. 2d 1344, 1346 (Fla. 3d DCA 1980), so an earlier appeal from that order was properly dismissed. Because the present appeal was timely taken from the judgment of September 1, 2011, which actually dismissed the case and was therefore the first appealable order entered below, the appellees’ motion to dismiss is not well taken.

[emphasis is mine].

District Court Can Consider Item Which Can Be Judicially Noticed At Motion To Dismiss Stage

In Peter Halmos, et al v. Bomardier Aerospace Corp. (10-12411), the Eleventh Circuit affirmed THIS order from the district court dismissing a claim for malicious prosecution.  The court noted that while "at the Fed. R. Civ. P. 12(b)(6) stage, we 'primarily consider the allegations in the complaint,” but “[t]he court  is not  [always]  limited to the  four corners of the complaint.' Long v. Slaton, 508 F.3d 576, 578 n.3 (11th Cir. 2007)."  In addition to looking to the four corners of the complaint:

a district court may take judicial notice of matters of public record without converting a Rule 12(b)(6) motion  into a Rule 56 motion. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999); see also Tellabs, Inc. v. Makor Issues & Rights,  Ltd.,  551 U.S.  308,  322,  127  S. Ct.  2499,  2509 (2007)

In granting the motion to dismiss, the district court properly looked to the complaint and its attachments, and the record from an action in a Texas lawsuit.  You can view the briefs at the following links: Initial Brief; Answer Brief; and Reply Brief.

Third District Affirms Dismissal Of Interstate Land Sales Full Disclosure Act Action

In CRC 1803, LLC v. North Carillon, LLC (3D08-3137), the Third District affirmed the dismissal of a lawsuit brought for revocation of a contract based on 15 U.S.C. section 1703 (a)(1)(B), the Interstate Land Sales Full Disclosure Act (ILSA).

The complaint alleges that North Carillon failed to provide a property report prior to CRC signing the contract as required by 15 U.S.C. section 1703 (a)(1)(B). North Carillon responded with a motion to dismiss, arguing that as section 1703 of the ILSA contains a two-year limitations period, and as CRC signed the contract on May 1, 2006, and filed suit on May 2, 2008, its revocation claim is barred. CRC argued that the claim was not barred because the contract was actually fully executed on May 22, 2006, when North Carillon signed. The trial court heard arguments and concluded that, based on these facts, 15 U.S.C. § 1703 required CRC to have filed its complaint within two years after CRC signed the purchase contract and, as it did not, it was time barred from filing for revocation. The court granted North Carillon’s motion to dismiss,1 with prejudice, and based on these facts, we affirm.

Fourth District Upholds Dismissal of Declaratory Relief Claim - With a Dissent From Judge Warner

In N & D Holding, Inc. v. Town of Davie (4D08-2809), the Fourth District affirmed the dismissal of a complaint for declaratory relief. Senior Judge Shahood wrote the opinion, which Judge Hazouri joined. Judge Warner filed a dissenting opinion.

The majority stated:

The standard of review of a trial court’s ruling dismissing a complaint for declaratory judgment is whether the trial court abused its discretion. S. Riverwalk Invs., LLC v. City of Ft. Lauderdale, 934 So. 2d 620, 622 (Fla. 4th DCA 2006). “‘A motion to dismiss for failure to state a cause of action admits all well pleaded facts as true, as well as reasonable inferences that may arise from those facts.’” Id. (quoting Palumbo v. Moore, 777 So. 2d 1177, 1178 (Fla. 5th DCA 2001)). “The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.” Id. (citations omitted).

***

However, the record contains no transcript of the hearing on the motion to dismiss, and, thus, we are without any evidence that the trial court considered outside allegations or evidence in the course of the proceedings. It is the appellant’s duty to point out where in the record the alleged error can be substantiated.

The dissent stated:

The complaint stated a cause of action for declaratory judgment. “The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.”...The allegations of N & D show that it is entitled to a declaration of its rights to the zoning in question.

Dismissal as a Sanction

In Sonson v. Hearn (4D08-2799), the Fourth District reversed a trial court's order dismissing a case as a sanction for failure to attend a court ordered deposition. While the court reversed the dismissal, it reaffirmed the trial court's right to impose dismissal as a sanction and stated in the final paragraph: "Our purpose in rendering this opinion is not to further burden an already overburdened trial bench. On the contrary, our decision is meant to affirm the authority of trial judges to deliver the paramount sanction of dismissal when warranted."

The problem with the dismissal in this case was the record did not make clear whether the failure to comply with a court order was the lawyers fault or the clients.

"This case arose from a dispute regarding the ownership of two parcels of land located in St. Lucie County...On numerous occasions over the course of many months, Hearn’s attorney attempted in vain to schedule depositions of Jennifer Sonson, individually and Stephen Sonson as representative of both plaintiff corporations. This recalcitrance culminated in an April 17, 2008 court order directing both individuals to appear for a deposition on April 24, 2008. When neither appeared, Hearn – through her attorney – moved to dismiss the cause of action with prejudice under Florida Rule of Civil Procedure 1.380."

***

Despite the trial court’s repeated insistence of some type of evidence to support either side’s position at the hearing on the motion to dismiss, both lawyers offered nothing but a couple of certificates of nonappearance, copies of lawyer letters and other unsworn “statements of fact” to advance their respective arguments...

On appeal, the Sonsons argue that the trial court abused its discretion in dismissing their action without finding that their failure to comply with the lower court’s order prejudiced Hearn.

We do not agree with the Sonsons’ argument that a trial court is always required to find prejudice before dismissing an action for all types of discovery misconduct. Although this court has stated “[t]he emphasis should be on the prejudice suffered,” Fisher v. Prof’l Adver. Dirs. Co., 955 So. 2d 78, 80 (Fla. 4th DCA 2007), recognition and enforcement of the court’s authority to enter orders pertaining to discovery remains vital and equally important.

Nonetheless, the trial court’s dismissal appears premature. A dismissal under rule 1.380 is “the most severe of of all sanctions which should be employed only in extreme circumstances.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). Upon Hearn’s evidence that the Sonsons failed to appear at the court-ordered depositions, the trial court should have shifted the evidentiary burden to the Sonsons to address the alleged dereliction.

If a deliberate failure to comply with the trial court’s order is attributable to the Sonsons, dismissal might be a proper sanction...However, where the attorney, and not the client, is responsible for the non-compliance, a different set of factors must be applied: 1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993). “[I]f a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.” Id.

Dismissal of Declaratory Judgment Claim Reversed

In Murphy v. Bay Colony Property Owners Association (2D08-2246), the Second District reversed the trial court's order dismissing the plaintiff/appellant's claim for declaratory relief.

A complaint for declaratory judgment should not be dismissed if the plaintiff established the existence of a justiciable controversy cognizable under the Declaratory Judgment Act, chapter 86, Florida Statutes (2007). See Thompson v. Fla. Cemeteries, Inc., 866 So. 2d 767, 769 (Fla. 2d DCA 2004). As this court has previously stated, "[t]he test for the sufficiency of a complaint for declaratory judgment is not whether the plaintiff will succeed in obtaining the decree he seeks favoring his position, but whether he is entitled to a declaration of rights at all." "X" Corp. v. "Y" Person, 622 So. 2d 1098, 1101 (Fla. 2d DCA 1993). Thus, Murphy needed to demonstrate that she "is in doubt as to the existence or nonexistence of some right, status, immunity, power, or privilege and that [s]he is entitled to have such doubt removed." Id. Murphy must also show a "bona fide, actual, present, and practical need for the declaration." Id. (citing Platt v. Gen. Dev. Corp., 122 So. 2d 48, 50 (Fla. 2d DCA 1960)).

However, the trial court, in granting Bay Colony's motion to dismiss, held that the agreement was not ambiguous because Bay Colony "must give its approval for the improvements Murphy desires." We find the trial court improperly ruled on the final merits of Murphy's claim rather than on the sufficiency of her complaint. See id. Therefore, the trial court's determination was inappropriate at the motion to dismiss stage and cannot be considered a substitute for a motion for summary judgment. Id.; Consuegra, 801 So. 2d at 112.

Trial Court Must Give Notice Before Dismissing a Complaint Sua Sponte

In Manzano v. Nicoletti (3D08-2719), the Third District reversed a dismissal entered by the trial court on a confession of error by the defendant/appellee.

"We accept the defendants’ concession that where a trial court wishes sua sponte to raise the legal sufficiency of the complaint, the court must give the plaintiffs notice and a reasonable opportunity to respond. Surat v. Nu-Med Pembroke, Inc., 632 So. 2d 1136, 1136-38 (Fla. 4th DCA 1994). The defendants acknowledge that the procedure outlined in Surat was not followed here, and accordingly we reverse the dismissal order. This ruling is without prejudice to the defendants to file a motion to dismiss, or the court to raise the issue on its own motion. The plaintiffs must be given a reasonable opportunity to respond in writing, and if at all possible, should be afforded the right to be heard at the hearing telephonically."

Order Granting Motion to Dismiss Reversed for Lack of Procedural Due Process

In Owens v. Owens (1D08-5169), the trial court granted a motion to dismiss, however, the losing party had not been provided a copy of the motion or notice that the hearing was scheduled to occur.

"Procedural due process requires both fair notice and a real opportunity to be heard before judgment is rendered...We conclude that the procedure utilized below effectively deprived appellant of her basic due process rights. We express no opinion on the underlying merits of this case. The order of dismissal with prejudice is REVERSED, and this case is REMANDED for further proceedings."

Third District on Motion to Dismiss Standard

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).

***

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.