Shapiro v. Tulin, — So.3d —-, 2011 WL 1878014 (Fla. 4th DCA May 18, 2011)
In a dispute arising out of the appellant’s mirror-image agreements with the decedent to make devises for each other in the event of either of their deaths, the personal representative of the decedent’s estate objected to the appellant’s claim. That resulted in the appellant’s suing for replevin, breach of contract, and breach of fiduciary duty.
The personal representative moved to dismiss on three grounds, only one of which—failure to comply with the requirements of F.S. 732.701—was addressed by the trial court. F.S. 732.701 is Florida’s "will contract" statute, and its key provisions are the following:
No agreement to make a will, to give a devise, not to revoke a will, not to revoke a devise, not to make a will, or not to make a devise shall be binding or enforceable unless the agreement is in writing and signed by the agreeing party in the presence of two attesting witnesses. . . . The execution of a joint will or mutual wills neither creates a presumption of a contract to make a will nor creates a presumption of a contract not to revoke the will or wills.
The trial court granted the personal representative’s motion to dismiss, agreeing that the contract between the appellant and the decedent was signed by only one witness instead of the required two.
The 4th DCA reversed for two reasons. The first was that the trial court ran afoul of the “four corners” rule: the appellant’s complaint stated that “all conditions precedent [to his agreement with the decedent] were met, excused, or waived,” and this should have been accepted as true for purposes of considering the motion to dismiss. Since this was the only basis for having granted the motion, the decision was reversed:
The complaint alleged that all conditions precedent – which would include the signatures of two attesting witnesses – were met, excused, or waived and, as this court has stated, such allegations must be accepted as true. As such, the trial court’s finding that section F.S. 732.701 was not complied with was based on facts not within the scope of the appellant’s complaint. Thus, because a court may not look anywhere but to the document on a motion to dismiss, and the trial court here clearly exceeded the boundaries of the four corner of appellant’s complaint in dismissing the claim on the basis that two attesting witnesses did not sign the agreement in accordance with section F.S. 732.701, the trial court erred in its dismissal of appellant’s claim.
The 4th DCA also held that under Fla. R. Civ. P. 1.190(a) the appellant was entitled to at least one opportunity to amend his complaint before it was dismissed. Why? Because a motion to dismiss isn’t an answer, and under rule 1.190(a) you have a right to amend your complaint once as a matter of law before the other side files an answer.
Additionally, appellant was not afforded the opportunity to amend his complaint once as a matter of law, pursuant to rule 1.190(a), Florida Rules of Civil Procedure.
. . . [A]ppellant pled generally that all conditions precedent were met and that he was not afforded the opportunity to amend his complaint to specifically plead the same in regards to the signatures of two attesting witnesses. Further, appellant contended that he asked for leave to amend his complaint once to cure the defects discussed in Tulin’s motion to dismiss, as a matter of course, and was denied this opportunity by the trial court. As noted above, a motion to dismiss is not a responsive pleading and will not affect a party’s ability to amend, pursuant to the Florida Rules of Civil Procedure. Appellant should have been afforded the right to amend his complaint to allege the compliance with all conditions precedent more specifically before the trial court dismissed his claim with prejudice.