48 Fla. L. Weekly D147a

AJ THERAPY CENTER, INC., Appellant, v. IMPERIAL FIRE & CASUALTY INSURANCE COMPANY, Appellee. 2nd District. Case No. 2D21-3264. January 13, 2023. Appeal from the County Court for Hillsborough County; Jessica G. Costello, Judge. Counsel: Chad A. Barr of Chad Barr Law, Altamonte Springs, for Appellant. William J. McFarlane, III, and Michael K. Mittelmark of McFarlane Law, Coral Springs, for Appellee.

(CASANUEVA, Judge.) AJ Therapy Center, Inc. (AJ Therapy), appeals the trial court’s order of dismissal. Imperial Fire & Casualty Insurance Company (Imperial Fire) concedes error. We agree that the trial court’s order was erroneous and remand for a continuation of the proceedings.

The procedural context of this case is critical to the outcome of this appeal. In 2019, the insured, Anniel Brito Hector, was involved in an automobile accident. Ms. Hector assigned her personal injury protection insurance benefits to AJ Therapy in exchange for medical treatment. AJ Therapy, as the assignee, requested payment for services rendered to Ms. Hector from Imperial Fire. Upon denial of payment, AJ Therapy filed an action for declaratory relief asserting that as the assignee of the personal injury protection insurance benefits, it was entitled to payment for services rendered to Ms. Hector. Imperial Fire moved to dismiss, relying on a consent final judgment obtained against Ms. Hector, which declared that the operative insurance policy was void ab initio due to her misrepresentations and omissions on the insurance application.

Thereafter, the trial court issued an order dismissing the action. The trial court reasoned, in part, that

when taking Plaintiff’s allegations as true in the Complaint, based on the Consent Final Judgment, which the Court finds is applicable law, Plaintiff does not have a cause of action to recover under the Insurance Policy because it has been previously deemed void ab initio. As the assignee, Plaintiff took assignment of the now voided Insurance Policy with that fault or defense, as that fault or defense existed at the time of the assignment.

“[T]his court reviews an order dismissing a complaint with prejudice using a de novo standard of review, because a motion to dismiss examines the legal sufficiency of the complaint, not factual determinations.” Thews v. Wal-Mart Stores E., LP, 210 So. 3d 723, 724 (Fla. 2d DCA 2017) (citing Neapolitan Enters. LLC v. City of Naples, 185 So. 3d 585, 589 (Fla. 2d DCA 2016)).

In its motion to dismiss, Imperial Fire argued that because the consent final judgment declared the operative insurance policy void ab initio, AJ Therapy failed to state a cause of action upon which relief may be granted. “And when ruling on a motion to dismiss for failure to state a cause of action, a trial court must limit its review to the allegations contained within the four corners of the complaint and ‘accept the material allegations as true.’ ” Touchton v. Woodside Credit, LLC, 316 So. 3d 392, 395 (Fla. 2d DCA 2021) (quoting Murphy v. Bay Colony Prop. Owners Ass’n, 12 So. 3d 924, 926 (Fla. 2d DCA 2009)). Because the trial court was confined to the allegations asserted by AJ Therapy in the four corners of the complaint, its reliance upon the unverified consent final judgment at this stage of the proceeding was misplaced.¹

Accordingly, the order of dismissal is reversed, and this matter is remanded for further proceedings consistent with this opinion.

Reversed and remanded. (MORRIS, C.J., and VILLANTI, J., Concur.)

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¹The argument raised by Imperial Fire is an affirmative defense. “Affirmative defenses such as res judicata must be typically raised in an answer, not in a motion to dismiss, unless the allegations of the complaint demonstrate that the action is barred by res judicata.” Thews, 210 So. 3d at 724 (citing Neapolitan Enters., LLC, 185 So. 3d at 589).* * *