Third District Court of Appeal
State of Florida
Opinion filed August 2, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1796
Lower Tribunal No. 22-6298 SP
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Age of Empire, Inc., etc.,
Appellant,
vs.
Ocean Two Condominium Association, Inc., etc.,
Appellee.
An Appeal from the County Court for Miami-Dade County, Miesha
Darrough, Judge.
Craig B. Shapiro, P.A., and Craig B. Shapiro, for appellant.
Continental PLLC, and John Arrastia, Jr., Brandon J. Hechtman and
Carlos Enrique Alvarez, for appellee.
Before EMAS, LINDSEY and GORDO, JJ.
GORDO, J.
Age of Empire, Inc. (“Empire”) appeals an order granting Ocean Two
Condominium Association, Inc.’s (“the Association”) motion to dismiss with
prejudice. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). Finding no
error in the trial court’s dismissal of the case filed before it, we affirm.
In February of 2020, Empire and the Association entered into a
contract (“the Construction Agreement”) where Empire would provide
restoration and improvement services for the Association’s premises located
in Sunny Isles Beach, Florida. Empire allegedly timely performed and
complied with each obligation required under the Construction Agreement.
On February 25, 2022, Empire filed an initial complaint asserting a single
count for breach of contract alleging the Association failed to make final
payment under the Construction Agreement, which it attached to the
complaint. Empire later filed an amended complaint to which it attached a
final contractor’s affidavit dated June 10, 2022, as proof that it satisfied the
condition precedent to final payment pursuant to the Construction
Agreement. The Association filed a motion to dismiss the amended
complaint arguing the newly attached exhibit demonstrated that Empire
failed to perform a contractual condition precedent to filing the lawsuit. After
a hearing, the trial court granted the motion, dismissing Empire’s amended
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complaint with prejudice only as to the lawsuit before it but not as to the
actual claim. This appeal followed.
“We review de novo an order granting a motion to dismiss with
prejudice.” Johansson v. Miami-Dade Cnty. Value Adjustment Bd.,
346 So.
3d 90, 92 (Fla. 3d DCA 2022). “It is the established rule that, upon a motion
to dismiss a complaint for failure to state a cause of action, all material
allegations of the complaint are taken as true . . . . Those allegations are then
reviewed in light of the applicable substantive law to determine the existence
of a cause of action.” Peeler v. Indep. Life & Acc. Ins. Co.,
206 So. 2d 34,
36 (Fla. 3d DCA 1967) (citations omitted). “‘Any exhibit attached to a
pleading shall be considered a part thereof for all purposes’. Rule 1.130(b),
R.C.P., 30 F.S.A. In considering the motion to dismiss the trial court was
required to consider the exhibit (deposition) attached to and incorporated in
the amended complaint.” Harry Pepper & Assocs., Inc. v. Lasseter,
247 So.
2d 736, 736 (Fla. 3d DCA 1971); see also Fla. R. Civ. P. 1.130(b) (“Any
exhibit attached to a pleading must be considered a part thereof for all
purposes.”).
Article 6.2 of the Construction Agreement provides: “[f]inal payment
shall not be due until the Contractor has delivered to the Association . . . a
final contractor’s affidavit pursuant to Section 713.06(2), Florida Statutes.”
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Where the allegations in the complaint are contradicted by the complaint’s
attached exhibits, the plain meaning of the exhibits control and may be the
basis for a motion to dismiss. See Hunt Ridge at Tall Pines, Inc. v. Hall,
766
So. 2d 399, 401 (Fla. 2d DCA 2000) (“Where complaint allegations are
contradicted by exhibits attached to the complaint, the plain meaning of the
exhibits control and may be the basis for a motion to dismiss.”); Ginsberg v.
Lennar Fla. Holdings, Inc.,
645 So. 2d 490, 494 (Fla. 3d DCA 1994) (“When
a party attaches exhibits to the complaint those exhibits become part of the
pleading and the court will review those exhibits accordingly.”). Here, the
exhibits unequivocally established that Empire did not deliver the final
contractor’s affidavit to the Association prior to filing suit, a condition
precedent to a breach of contract claim for failure to tender final payment
under the Construction Agreement. As such, we find the trial court properly
dismissed the claim before it and noted that a future claim would not be
barred, as dismissal with prejudice was only as to the lawsuit before it but
not the actual claim. “The dismissal with prejudice of a prematurely filed
claim does not bar a subsequent action once the claim has ripened.” Shuck
v. Bank of Am., N.A.,
862 So. 2d 20, 24 (Fla. 2d DCA 2003).
Affirmed.
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