Conte v. R & A Food Services, Inc.
Conte v. R & A Food Services, Inc.
Opinion of the Court
The appellants, Randy Conte and Debbie Conte (the Contes), appeal the trial court’s dismissal with prejudice of count I of their two-count complaint which alleged a breach of contract on the part of appellee, R & A Food Services, Inc. (R & A).
The trial court dismissed the Contes’ claim for breach of contract based on the defense of merger which R & A raised in support of its motion to dismiss for failure to state a cause of action. See generally Southpointe Dev., Inc. v. Cruikshank, 484 So.2d 1361 (Fla. 2d DCA), review denied, 492 So.2d 1330 (Fla. 1986) (discussing doctrine of merger). We recognize that Florida Rule of Civil Procedure 1.110(d) permits a pleader to raise an affirmative defense appearing on the face of a complaint as a basis of a motion to dismiss for failure to state a cause of action. E.g., Timmins v. Firestone, 283 So.2d 63 (Fla. 4th DCA 1973). When considering a motion to dismiss, however, a trial court is confined to a review of the allegations of a complaint and may not consider defenses which do not appear on its face. E.g., Ehmann v. Florida Nat’l Bank at Ocala, 516 So.2d 1063 (Fla. 5th DCA 1987). Moreover, a complaint need not anticipate affirmative defenses. E.g., Simonin v. Sims, 456 So.2d 499 (Fla. 4th DCA 1984).
Our review of the complaint and its attachment leads us to conclude that it does not contain sufficient information from which the
Reversed and remanded with directions.
. The trial court also dismissed another party-defendant from the complaint, as well as count II which alleged tortious interference with an advantageous business relationship. The Contes have not appealed these rulings.
. We note that R & A in its brief refers to certain documents which it contends conclusively establish the defense of merger. These documents, however, are not attached or referred to in the Contes' complaint nor are they part of the record.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.