          Third District Court of Appeal
                                  State of Florida

                            Opinion filed February 20, 2019.
            Not final until disposition of timely filed motion for rehearing.

                                  ________________

                                   No. 3D17-938
                            Lower Tribunal No. 16-23613
                                ________________


                                   Matt Papunen,
                                       Appellant,

                                           vs.

                         Bay National Title Company,
                                       Appellee.


         An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.

         The Orlofsky Law Firm, P.L., and Alexander S. Orlofsky, for appellant.

       Boyd Richards Parker & Colonnelli, P.L., and W. Todd Boyd and Gissell
Jorge, for appellee.

Before SALTER, LINDSEY and HENDON, JJ.

         SALTER, J.
      Matt Papunen (“Buyer”) appeals a final order dismissing with prejudice his

complaint against Bay National Title Company (“Bay National”).1 The Buyer

alleged that although Bay National confirmed at closing Seller’s title and the absence

of post-foreclosure appellate or other legal challenges to the Seller’s title, Bay

National’s title examination negligently missed a post-judgment, duly-docketed

motion to vacate the foreclosure judgment and challenge the Seller’s title.

      We reverse the order of dismissal with prejudice, and remand for further

proceedings.

      Facts and Proceedings Below

      The case below arises from the sale of a residence by a lender following the

foreclosure of a mortgage on the residence and the issuance of a certificate of title

to the lender. The lender, through its attorney-in-fact JPMorgan Chase Bank,

National Association (“Seller”), then placed the property for sale.

      The Buyer and Seller entered into an “Indemnity and Hold Harmless Release”

(the “Release”) signed and notarized by Buyer on June 19, 2015.             The form

identified as “Seller Releasees” the Seller, Bay National, their respective “parent and


1
  Inexplicably, the Buyer’s notice of appeal from the final order identifies the title
insurer, Fidelity National Title Insurance Company, as the defendant/appellee, rather
than the title agent, Bay National Title Company. Bay National Title Company was
the sole defendant below, the party identified in the final order itself, and the
“authorized signatory” shown on the title insurance forms at issue. The appellee’s
brief identifies the defendant/appellee variously as “Bay National Title Insurance
Company” and “Bay National Title Company.”

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subsidiary and affiliate companies,” and the “present and former officers, directors,

agents, employees, stockholders, owners, members, managers, attorneys,

predecessors, successors, assigns, insurers and servicing agents of each such entity.”

      The recitals, disclosures, and terms of the Release identified various risks:

“the Property may have Occupants or Claimants occupying the Property,” and there

might be agreements or rent concessions relating to any such Occupant or Claimant.

The Release also addresses the possibility of rent control violations, unrecorded

prepaid rent, or security deposits with tenants that might not be transferred as part

of the sale. Finally, the Release addresses the condition of the property being sold,

with the Seller disclaiming liability for damages that might be caused by repairs or

alterations to the property by an occupant prior to the closing.

      Other provisions of the Release pertain to post-closing claims of the former

owner:

      WHEREAS . . . The delivery of possession shall be subject to the rights
      of any Occupants or Claimants and any right of confirmation,
      redemption or similar legal right of the former owner, its successors and
      assigns. Seller shall not be required to bring any action to evict,
      relocate, dispossess or determine the rights of any Occupant or
      Claimant before, on or after closing. The existence of any Occupants or
      Claimants, or claims by such persons, shall not give right to any rights
      to terminate the Agreement by Buyer or to give Buyer the right to raise
      any objection to Seller’s title.

      ….

      In consideration of Seller’s agreement to proceed with the closing of
      the sale of the Property to Buyer, and Closing Agent’s agreement to


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      conduct the Closing of the sale of the Property notwithstanding the
      aforementioned items, Buyer hereby agrees as follows:

      ….

      2. Buyer agrees to release, indemnify, defend, and forever hold the
      Seller Releasees harmless in all respects from and against any manner
      of action, cause of action, suits, debts, dues, sums of money, accounts,
      reckonings, bonds, bill, specialties, covenants, contracts, controversies,
      agreements, promises, variances, trespasses, interest, penalties,
      damages, judgments, executions, claims and demands whatsoever, in
      law or in equity, arising out of, in connection with or relating to the
      occupancy of the property or the sale of the Property to Buyer.

      ….

      4. It is the intent of Buyer, and Seller that this Release survive any
      closing of the sale of the Property to Buyer.

      A week after the Release was executed and delivered, the Buyer and the Seller

entered into a standard form of “‛As Is’ Residential Contract for Sale and Purchase”

(the “Contract”). Although Bay National was a designated “Seller Releasee” in the

Release executed by the Seller and Buyer a week earlier, the Contract specified that

the Seller would deliver and pay for an owner’s title policy to be issued to the Buyer

“insuring Buyer’s marketable title to the Real Property,” subject only to six types of

exceptions typical in such transactions, including land use matters, plat restrictions,

mineral rights of record, unplatted public utility easements of record, taxes for the

year of closing and subsequent years, and assumed and purchase money mortgages.

The Contract provisions did not include an exception for certain docketed filings in




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the foreclosure case: a notice of appeal, or a motion to vacate or set aside the final

judgment and foreclosure sale through which the Seller had obtained title.

      The Seller and Buyer closed the sale transaction on July 24, 2015.            In

conformance with the terms of the Contract, the Seller and Bay National delivered

a markup of an earlier title insurance commitment issued and signed by Bay

National. Bay National marked up Schedule B, Section 1, of the commitment to

confirm that requirement 10 had been satisfied:

      Issuing agent must request from the [insurer, Fidelity National Title
      Insurance Company] (or perform themselves) an update and review of
      the foreclosure docket for the proceeding [identifying the foreclosure
      case in which the Seller obtained title] between the effective date of this
      report and one (1) business day prior to closing, to verify that no appeal
      or motion to vacate or set aside the proceedings has been filed.

      In its complaint, the Buyer alleged that Bay National negligently failed to

perform the specified “update and review of the foreclosure docket,” and failed to

discover a motion to vacate the final judgment of foreclosure. The Buyer alleged

that he incurred substantial damages over a protracted period as he prosecuted legal

proceedings to overcome the motion to vacate.

      Bay National moved to dismiss on the basis of the broad language in the

Release.2 The Buyer contended that the insurance commitment delivered at closing



2
   The Release, Contract, title commitment, and marked-up commitment delivered
to the Buyer at closing were attachments to the Complaint, and were thus within the
“four corners rule.” Jester v. Pawley, 245 So. 3d 859, 860 (Fla. 3d DCA 2018).

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pursuant to the terms of the Contract (and over a month after the Release was

executed) imposed a separate duty on the part of Bay National that was outside the

scope of the general exculpatory provisions in the Release. The Buyer argued that

Bay National’s argument rendered the Contract provisions regarding title, and the

title commitment itself, entirely nugatory—a result that could not have been

intended.

      The trial court heard argument on the motion to dismiss and the Buyer’s

opposition to the motion, and granted the motion to dismiss, declining to allow the

Buyer a right to amend. This appeal followed.

      Analysis

      We review an order granting a motion to dismiss with prejudice de novo.

Williams Island Ventures, LLC v. de la Mora, 246 So. 3d 471, 475 (Fla. 3d DCA

2018). “In determining the merits of a motion to dismiss, the trial court must limit

itself to the four corners of the complaint, including any attached or incorporated

exhibits, assuming the allegations in the complaint to be true and construing all

reasonable inferences therefrom in favor of the non-moving party.” Grove Isle

Ass’n, Inc. v. Grove Isle Assocs., LLLP, 137 So. 3d 1081, 1089 (Fla. 3d DCA 2014).

      The sweeping exculpatory language within the earlier release is facially

inconsistent with the more specific title insurance obligations of the Seller in the

later Contract and marked-up title commitment delivered to the Buyer in accordance



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with the Contract. “[I]t is a general principle of contract interpretation that a specific

provision dealing with a particular subject will control over a different provision

dealing only generally with that same subject.” Kel Homes, LLC v. Burris, 933 So.

2d 699, 703 (Fla. 2d DCA 2006) (quoted with approval in Idearc Media Corp. v.

M.R. Friedman and G.A. Friedman, P.A., 985 So. 2d 1159, 1161 (Fla. 3d DCA

2008)).

      The Buyer is correct that Bay National’s and the trial court’s interpretation of

the documents simply nullifies the contract provisions requiring the Seller to provide

title insurance and to complete a review of the foreclosure docket. The Seller’s

Release document is plainly written for the protection of the Seller, while Bay

National’s title duties are just as plainly written for the protection of the Buyer. The

reconciliation of these provisions leads ineluctably to the conclusion that the motion

to dismiss should not have been granted with prejudice.

      That said, Bay National has also cited provisions of the title commitment and

various federal cases3 holding that the Buyer’s claims must be confined exclusively

to contract rather than tort. We decline to consider or rule upon that argument, but

the point underscores that the right to amendment should not have been prohibited




3
   These authorities were not cited to the trial court in Bay National’s motion to
dismiss.

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so quickly (the Seller had never amended its original complaint when it was

precluded from filing even a first amended complaint).

      Leave of court to amend “shall be given freely when justice so requires,”

Florida Rule of Civil Procedure 1.190(a), and “any doubts should be resolved in

favor of the amendment.” Overnight Success Const., Inc. v. Pavarini Const. Co.,

Inc., 955 So. 2d 658, 659 (Fla. 3d DCA 2007).

      The final order of dismissal with prejudice is reversed, and the action is

remanded to the circuit court for further proceedings.




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