       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

 DILSON S. URRIBARI, an individual, and LA PLACITA GROCERY OF
            FORT PIERCE CORP., a Florida corporation,
                           Appellants,

                                     v.

    52 SW 5TH CT WHSE, LLC, a Florida limited liability company,
                   and BASHAR M. YATAK,
                         Appellees.

                              No. 4D18-1539

                             [March 20, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie  County;     Janet    Croom,      Judge;    L.T.    Case     Nos.
2017CA001209AXXXHC and 2017CC002110AXXXHC.

   Elliot B. Kula, W. Aaron Daniel and William D. Mueller of Kula &
Associates, P.A., Miami, for appellants.

  Elaine Johnson James of Elaine Johnson James, P.A., Palm Beach
Gardens, for appellees.

WARNER, J.

    La Placita Grocery, a lessee of a commercial building, and its president,
Dilson Urribari, appeal two judgments, both entered upon motions for
judgment on the pleadings. The first resolved a complaint for breach of
contract, fraud in the inducement, and other grounds against Bashar
Yatak in connection with his purchase of La Placita’s right of first refusal
on the purchase of the building. The second judgment granted eviction of
La Placita and entered judgment on La Placita’s counterclaims against 52
SW 5th CT WHSE, LLC, and Yatak as its manager, which mirrored the
claims brought in the first suit. Because the trial court erred by
considering facts outside the four corners of the pleadings and relying on
allegations deemed false pursuant to the rules governing motions for
judgment on the pleadings, we reverse.

  In the first lawsuit, La Placita Grocery of Fort Pierce Corporation sued
Bashar Yatak for promissory estoppel, unjust enrichment, specific
performance, fraud in the inducement, both intentional and negligent
misrepresentation, and breach of contract.              The second amended
complaint alleged that La Placita operated a grocery store on property in
Fort Pierce, which it leased from Jose and Sandra Garcia. In 2017, Yatak
expressed an interest in purchasing the grocery store business, and Yatak
and La Placita entered into an oral agreement for 52 SW to purchase the
business for $550,000 prior to the end of June 2017. Subsequent to the
agreement, Yatak became interested in purchasing the property leased to
La Placita. The lease gave La Placita and Urribari the right of first refusal
to buy the Garcias’ property. La Placita agreed to waive its right of first
refusal, so that Yatak could negotiate a sale of the building from Garcia,
conditioned on Yatak continuing with his purchase of the grocery store
business.     When the purchase of the grocery business was not
forthcoming, La Placita threatened to terminate the waiver. Unbeknownst
to La Placita, Yatak, through his corporation 52 SW, expedited the
purchase of the building for less than the sale price of the grocery
business. After closing on the purchase, Yatak continued to make
representations that he would purchase the grocery business. Yatak
knew, however, that a clause in the lease allowed the purchaser of the
building to terminate the lease within sixty days of the purchase. La
Placita alleged that at the time of the filing of the complaint, Yatak, through
52 SW, was attempting to evict it from the property, thus breaching his
agreement to purchase the grocery store business from La Placita.

    Based upon the alleged facts, La Placita sought damages for breach of
contract, unjust enrichment, and fraud, and it also sought specific
performance of the oral agreement to purchase the business. La Placita
did not attach any documents to its second amended complaint, although
the lease agreement between it and Garcia, as well as an unsigned copy of
an Asset Purchase Agreement between La Placita and Yatak, were attached
to the original complaint.

    Yatak moved to dismiss the complaint or for judgment on the pleadings
of the second amended complaint, relying on two documents. The first
document was the unsigned Asset Purchase Agreement attached to the
initial complaint. The other document was the “Waiver of Right to
Purchase,” which La Placita signed. Neither document was attached to
the pleadings. Yatak argued that the second amended complaint failed to
state a cause of action for breach of contract and specific performance
because Yatak had not executed the Asset Purchase Agreement attached
to the initial complaint. Yatak also contended that the counts for fraud,
intentional and negligent misrepresentation, unjust enrichment, and
promissory estoppel all failed due to the existence of the written waiver
agreement. Yatak also raised the affirmative defense that the statute of

                                      2
frauds barred the oral agreement to buy La Placita’s grocery store
business.

    La Placita responded that the Asset Purchase Agreement and written
waiver were not attached to the second amended complaint, and Yatak
could not rely on them for dismissal. Further, La Placita and Urribari had
fully performed their portion of the bargain, which prevented application
of the statute of frauds. La Placita raised other grounds as to why the
statute of frauds did not apply.

    In the meantime, after La Placita had filed its original complaint, 52 SW
filed a complaint in county court for eviction of La Placita and Urribari,
alleging that it was entitled to terminate the lease and evict them based
upon the provision in the lease allowing a new owner to terminate the lease
upon sixty days’ notice. 52 SW did not attach a deed, an assignment of
the lease, or other evidence of its status as landlord. La Placita answered
the eviction complaint and argued that the property had been sold by the
Garcias, but it denied that 52 SW owned the property. It alleged that Yatak
had fraudulently induced La Placita to waive the right of first refusal. As
a result, La Placita contended that 52 SW and Yatak should be estopped
from enforcing the sixty-day termination of the lease based on their
misconduct. It sought to enjoin Yatak and 52 SW from evicting them.

    La Placita filed a counterclaim against 52 SW and Yatak, which
contained the same allegations as in the subsequently filed second
amended complaint addressed above. It did not attach any documents to
its counterclaim. Yatak and 52 SW responded to La Placita’s counterclaim
to the eviction action by filing an answer and affirmative defenses. They
attached a copy of La Placita’s original complaint in the circuit court
action, including the attached Asset Purchase Agreement and the Garcia
lease. They also attached the written waiver of the right of first refusal.

   After the filing of the second amended complaint, the county court
entered an agreed order transferring 52 SW’s eviction case to circuit court
and consolidating it with La Placita’s fraud action. 52 SW and Yatak
moved for judgment on the pleadings on La Placita’s counterclaim in the
eviction action. For reasons that do not appear in the record, 52 SW
withdrew its affirmative defenses to La Placita’s counterclaim, and then it
moved for judgment on the pleadings in the eviction action.

   The court heard all three motions for judgment on the pleadings, and,
after argument, ruled on each of them. The court dismissed the second
amended complaint based upon its review of the Asset Purchase
Agreement and waiver. It granted judgment of eviction based upon 52

                                     3
SW’s ownership of the property, the lease term allowing a new owner to
terminate the lease, and written notice to La Placita, all of which it referred
to as undisputed. The court also found that the affirmative defenses were
not legal defenses to the complaint for eviction under Florida law. As to
La Placita’s counterclaim, the court relied on the unsigned Asset Purchase
Agreement, as well as the written waiver of the right of first refusal, to find
that Yatak and 52 SW were entitled to judgment on the pleadings. From
these rulings, La Placita appeals.

    Preliminarily, we note that although the court consolidated the two
cases, a motion to dismiss for failure to state a cause of action or a motion
for judgment on the pleadings must be determined solely by the
examination of the complaint and its related documents, not the
documents in the consolidated case.            In Santiago v. Mauna Loa
Investments, LLC, 189 So. 3d 752 (Fla. 2016), the supreme court discussed
the effect of consolidation in ruling on a dismissal for failure to state a
cause of action.      The Third District had reversed a judgment in
consolidated cases, determining that the complaint against the defendant
in one of the consolidated cases did not state a cause of action by relying
on documents attached to the complaint in the other consolidated case.
Id. at 754-55. On petition for review, the Florida Supreme Court quashed
the Third District Court of Appeal’s opinion because that court had
improperly gone outside the four corners of the complaint in determining
the sufficiency of the complaint to state a cause of action:

      The district court's examination of one complaint and its
      attachments to determine the sufficiency of a separate
      complaint to state a cause of action clearly contravenes the
      longstanding four-corners rule explained above. And to the
      extent that the district court reached this conclusion based
      on the consolidation of the cases, the district court also
      improperly merged the [complaints from the two consolidated
      cases]. “Consolidation does not merge suits into a single
      cause or change the rights of the parties, or make those who
      are parties in one suit parties in another. Rather, each suit
      maintains its independent status with respect to the rights of
      the parties involved.”

Id. at 757 (citation omitted). The court explained that the sufficiency of a
complaint to state a cause of action must be determined solely by the
examination of the complaint and its related documents, not the
documents in the consolidated case. Id. These principles of law apply to
the complaints in these consolidated cases, and we address each
complaint separately.

                                      4
Standard of Review

   An order on a motion to dismiss for failure to state a cause of action is
reviewed de novo. See Rivera v. Torfino Enters., Inc., 914 So. 2d 1087, 1088
(Fla. 4th DCA 2005). “When ruling on a motion to dismiss for failure to
state a cause of action, the trial court must ‘treat as true all of the . . .
complaint’s well-pleaded allegations, including those that incorporate
attachments, and look no further than the . . . complaint and its
attachments.’” Morin v. Fla. Power & Light Co., 963 So. 2d 258, 260 (Fla.
3d DCA 2007) (footnote omitted) (quoting City of Gainesville v. Fla. Dep’t of
Transp., 778 So. 2d 519, 522 (Fla. 1st DCA 2001)). In ruling on a motion
to dismiss a complaint for failure to state a cause of action, “[t]he court
‘must confine itself strictly to the allegations within the four corners of the
complaint.’” Pizzi v. Cent. Bank & Tr. Co., 250 So. 2d 895, 897 (Fla. 1971)
(quoting Kest v. Nathanson, 216 So. 2d 233, 235 (Fla. 4th DCA 1968)).

    “A motion for judgment on the pleadings is governed by the same legal
test as a motion to dismiss for failure to state a cause of action.” Lutz v.
Protective Life Ins. Co., 951 So. 2d 884, 889 (Fla. 4th DCA 2007). To grant
a judgment on the pleadings, a trial court must find that based on the
pleadings, the movant is entitled to judgment as a matter of law. Krieger
v. Ocean Props., Ltd., 387 So. 2d 1012, 1013-14 (Fla. 4th DCA 1980). It is
improper to enter judgment on the pleadings if there are factual issues to
be resolved. Id. at 1014. And in considering a motion for judgment on the
pleadings, the court is precluded from relying on matters outside the
pleadings. Id. at 1013.

La Placita’s Second Amended Complaint

   The trial judge entered both a dismissal of La Placita’s second amended
complaint for failure to state a cause of action and a judgment on the
pleadings on the same complaint. It relied on the unsigned Asset Purchase
Agreement and the waiver of La Placita’s right of first refusal. Neither
document was attached to the amended complaint. Thus, the court erred
in entering judgment on documents on matters outside the pleadings.

   This case is similar to Oceanside Plaza Condominium Ass’n v. Foam
King Industries, Inc., 206 So. 3d 785, 787 (Fla. 3d DCA 2016). There, a
condo association sued a roofing company, alleging faulty roofing
materials and installation. Id. at 786. The original complaint and first
amended complaint were dismissed because of a statute of limitations bar.
Id. A second amended complaint was filed that changed the allegations so
that the faulty roofing was discovered the day before the limitations period
expired. Id. The roofer filed a motion to dismiss the second amended

                                      5
complaint. Id. The trial court reviewed the first amended complaint along
with the second amended complaint, and it determined that the facts
contradicted the facts of the second amended complaint. Id. Because of
the variance, the trial court granted the motion to dismiss. Id. The
appellate court reversed. The court noted that the filing of an amended
complaint constituted an abandonment of the original complaint. Id. at
787. As the first amended complaint was superseded, it “could no longer
be viewed as a pleading.” Id. (quoting Babb v. Lincoln Auto Fin. Co., 133
So. 2d 566, 568 (Fla. 3d DCA 1961)). Thus, because the court improperly
considered pleadings outside the second amended complaint, it erred in
granting the motion to dismiss. Id.

    In this case, the court relied on the Asset Purchase Agreement attached
to the original complaint. The original complaint was dismissed, and the
exhibit was not attached to the second amended complaint. The waiver
also relied on by the court was not attached to any pleading in this case.
Therefore, the court erred in considering these documents when granting
the motion to dismiss and motion for judgment on the pleadings. As to
the motion to dismiss, the complaint stated a cause of action for each of
the counts.

Judgment of Eviction

   La Placita argues that the court erred in granting judgment on the
pleadings in 52 SW’s complaint for eviction because the allegations of the
complaint were disputed in the answer. “In ruling on a motion for
judgment on the pleadings[,] material allegations of the moving party
which have been denied are taken as false.” First Fin. USA, Inc. v. Steinger,
760 So. 2d 996, 997 (Fla. 4th DCA 2000) (quoting Windle v. W.W. Windle
Co., 731 So. 2d 36, 37 (Fla. 4th DCA 1999)). “Judgment on the pleadings
may be granted only if, on admitted facts, the moving party is clearly
entitled to judgment as a matter of law.” Krieger, 387 So. 2d at 1013-14
(emphasis added).

   The eviction complaint alleged that 52 SW owned real property leased
by La Placita. However, La Placita responded in its answer to the eviction
complaint that it was “without knowledge and [could] neither deny nor
admit” this ownership allegation. Florida Rule of Civil Procedure 1.110(c)
requires these allegations to “operate as a denial.” Thus, for purposes of
the motion for judgment on the pleadings, the allegations should have
been taken as false. La Placita also denied that it had been notified of the
sale of the property and contested 52 SW’s standing to evict, contending
that it was not a party to the lease. As there was a plethora of facts which
were required to be taken as false for the purposes of the motion for

                                     6
judgment on the pleadings, the court erred in entering the judgment for
eviction based upon the motion for judgment on the pleadings.

La Placita’s Counterclaim against 52 SW and Yatak

   The counterclaim of La Placita against 52 SW and Yatak was nearly
identical to the consolidated complaint filed by La Placita. Unlike the
consolidated complaint, the Asset Purchase Agreement and waiver were
attached to the answer filed by 52 SW and Yatak, as they attached the
entire original complaint filed by La Placita in the consolidated case. While
the court’s judgment on the pleadings in this case was not based upon
documents outside the pleadings, that does not allow the trial court to
grant judgment on the pleadings based upon the answer and affirmative
defenses.

      “In considering such a motion, all material allegations of the
      opposing party’s pleading are taken as true, and all of the
      movant’s allegations which have been denied are taken as
      false. Since the answer requires no responsive pleading, all
      allegations contained therein are deemed denied.” Butts v.
      State Farm Mut. Auto. Ins. Co., 207 So. 2d 73, 75 (Fla. 3d DCA
      1968) (citations omitted). Where, as here, there has been no
      reply to the affirmative defense of res judicata, it is deemed to
      be denied, and therefore false.

Jaramillo v. Dubow, 588 So. 2d 677, 677-78 (Fla. 3d DCA 1991); accord
Ferris v. Ferris, 660 So. 2d 418, 418 (Fla. 4th DCA 1995). Thus, in this
case, the allegations in appellees’ answer and affirmative defense to La
Placita’s counterclaim must be deemed denied and false. Therefore, the
trial court could not rely on them and the attached documents, as it did,
in granting judgment on the pleadings. It also could not rely on the
affirmative defenses, as they had been withdrawn by 52 SW by the time of
the hearing on the motions.

    In conclusion, in entering each judgment on the pleadings, the court
erred in considering matters outside the pleadings, as well as in relying on
allegations deemed false for purposes of the motion. We therefore reverse
and remand for further proceedings in both of the consolidated cases.

DAMOORGIAN and LEVINE, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.

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