FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, Tonya B.
B. Kula, W. Aaron Daniel and William D. Mueller, of Kula
& Associates, P.A., Miami, for Appellants.
Bennett C. Lofaro and Yvette R. Lavalle, of Boyd, Richards,
Parker & Colonnelli, P.L., Tampa, for Appellee, E.C.
Scott Wright, P.A.
Clinton S. Payne and Maureen G. Pearcy, of Hinshaw &
Culbertson LLP, Coral Gables, for Appellee, Moletteire Injury
legal malpractice case, John Dennis Enlow and Lisa Enlow
appeal the trial court's order dismissing their amended
complaint with prejudice on statute of limitations grounds.
Specifically, they argue that the trial court erred by
relying on facts establishing the accrual date of the legal
malpractice claim that were outside the four corners of the
complaint. We agree and reverse.
reviewing a motion to dismiss, the court is strictly confined
to the allegations contained within the four corners of the
complaint and its attachments. Busch v. Lennar Homes,
LLC, 219 So. 3d 93');">219 So. 3d 93, 94 (Fla. 5th DCA 2017) (citing
Morin v. Fla. Power & Light Co., 963 So. 2d 258');">963 So. 2d 258,
260 (Fla. 3d DCA 2007)). The court must assume that the
well-pleaded allegations in the complaint are true, and it
must afford the plaintiff the benefit of all reasonable
inferences and conclusions that can be drawn from the facts
in the complaint. Poole v. City of Port Orange, 33
So. 3d 739, 740 (Fla. 5th DCA 2010); Lopez-Infante v.
Union Cent. Life Ins. Co., 809 So. 2d 13 (Fla. 3d DCA
2002); Meyers v. City of Jacksonville, 754 So. 2d
198, 202 (Fla. 1st DCA 2000); Provence v. Palm Beach
Taverns, Inc., 676 So. 2d 1022 (Fla. 4th DCA 1996). A
"motion to dismiss is not a motion for summary
judgment," and a trial court may not rely upon
depositions, affidavits, or other forms of evidence or
speculation as to whether the allegations in the complaint
"will ultimately be provable." Solorzano v.
First Union Mortg. Corp., 896 So. 2d 847, 850 (Fla. 4th
DCA 2005) (citing Atkins v. Topp Telecom, Inc., 873
So. 2d 397, 399 (Fla. 4th DCA 2004)); accord Baycon
Indus., Inc. v. Shea, 714 So. 2d 1094, 1095 (Fla. 2d DCA
1998) (citing Thompson v. Martin, 530 So. 2d 495
(Fla. 2d DCA 1988)). Moreover, the attachment of documents to
the motion to dismiss does not allow for their consideration
in deciding the motion. Nationstar Mortg., LLC v.
Sunderman, 201 So. 3d 139');">201 So. 3d 139, 141 (Fla. 3d DCA 2015).
the statute of limitations may be raised as an affirmative
defense in a motion to dismiss for failure to state a claim,
it is successfully raised "only where its violation
appears on the face of the complaint or its exhibits."
Toledo Park Homes v. Grant, 447 So. 2d 343, 344
(Fla. 4th DCA 1984) (citing Estate of James v. Martin
Mem'l Hosp., 422 So. 2d 1043, 1045 (Fla. 4th DCA
1982)). The statute of limitations for legal malpractice is
two years "provided that the period of limitations shall
run from the time the cause of action is discovered or should
have been discovered with the exercise of due
diligence." § 95.11(4)(a), Fla. Stat. (2014). The
statute of limitations begins to run when the cause of action
accrues. § 95.031, Fla. Stat. (2014). This occurs
"when the last element constituting the cause of action
occurs." § 95.031(1), Fla. Stat.
(2014). In this case, the cause of action accrued
on the date the Enlow's appeal was dismissed. This date,
however, was not included in the complaint or its
attachments, nor was it incorporated by reference. See
Landmark Funding, Inc. ex rel. Naples Syndications, LLC v.
Chaluts, 213 So. 3d 1078, 1079–80 (Fla. 2d DCA
2017); Neapolitan Enters., LLC v. City of Naples,
185 So. 3d 585, 589–90 (Fla. 2d DCA 2016); State v.
Beach Blvd. Auto. Inc., 139 So. 3d 380, 387 (Fla. 1st
DCA 2014); cf. One Call Prop. Servs. Inc. v. Sec. First
Ins. Co., 165 So. 3d 749, 752 (Fla. 4th DCA 2015)
("But where the terms of a legal document are impliedly
incorporated by reference into the complaint, the trial court
may consider the contents of the document in ruling on a
motion to dismiss." (citing Veal v. Voyager Prop.
& Cas. Ins. Co., 51 So. 3d 1246, 1249 (Fla. 2d DCA
2011))). Instead, it was included in a document attached to
the motion to dismiss that was improperly relied upon by the
court. See Busch, 219 So. 3d at 94 (citing
Morin, 963 So. 2d at 260); Sunderman, 201
So. 3d at 141.
nothing within the four corners of the complaint conclusively
showed that the statute of limitations had run on the
Enlows' malpractice claim, it was error to grant the
motion to dismiss on those grounds.
BERGER, WALLIS and EISNAUGLE, JJ., concur.