HOLLAND v. ANHEUSER BUSCH, INC

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Docket Number

No. 93-02964.

Attorney(S)

Burton E. Burdick, Ft. Lauderdale, for appellant. Tracy A. Raffles and George A. Vaka of Fowler, White, Gillen, Boggs, Villareal Banker, P.A., Tampa, for appellee.

Judges

LAZZARA, Judge.

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Smart Summary

Factual and Procedural Background

Russell Holland filed a lawsuit against Anheuser-Busch, Inc. alleging negligence, breach of contract, and breach of implied warranty for injuries he sustained as a passenger on an amusement ride at Busch Gardens. Holland claimed Busch Gardens was a subsidiary of Anheuser at the time of his injury. Anheuser moved to dismiss the complaint, asserting insufficiencies in process, jurisdictional defects, failure to state a cause of action, and statute of limitations issues. At a hearing, Anheuser submitted an affidavit stating Busch Gardens was owned and operated by Busch Entertainment Corporation, not Anheuser, but failed to establish that this was true on the date of injury.

The trial court granted the motion to dismiss but initially allowed Holland to amend his complaint against the proper party. This language was later removed by amended order on stipulation of counsel, with no record explaining the change. Holland then filed an amended complaint reiterating the same claims and naming Anheuser as the sole defendant, with more detailed allegations of Anheuser’s ownership and control over Busch Gardens on the injury date.

Anheuser filed a second motion to dismiss, reiterating prior defenses and emphasizing that Busch Gardens was owned and operated by Busch Entertainment Corporation, supported by the earlier affidavit. Holland contended Anheuser was barred from raising this issue anew, but the court did not address this contention due to reversal on other grounds. Before dismissal, Anheuser filed a supplemental affidavit clarifying it did not own or control Busch Gardens on the injury date. The trial court dismissed Holland’s amended complaint with prejudice, apparently finding Holland could not state a cause of action against Anheuser.

Legal Issues Presented

Whether the trial court erred by dismissing Holland's amended complaint with prejudice on the basis that Anheuser was not the proper party to sue, when the dismissal was made on a motion to dismiss rather than a motion for summary judgment.
Whether a motion to dismiss may be treated as a motion for summary judgment when affidavits are submitted and extrinsic evidence is considered.
Whether Anheuser’s failure to raise certain jurisdictional and procedural defenses in its initial motion to dismiss precludes raising those defenses later.

Arguments of the Parties

Appellant's Arguments

The amended complaint states a valid cause of action against Anheuser based on its alleged ownership and control of Busch Gardens on the date of injury.
Anheuser was precluded from raising new issues in its second motion to dismiss that were not raised in the first motion.
The trial court improperly considered affidavits and extrinsic evidence on a motion to dismiss, which should be limited to the well-pled allegations of the complaint.
Holland did not consent or stipulate to treating the motion to dismiss as a motion for summary judgment.

Appellee's Arguments

Anheuser argued it was not the proper party to be sued because Busch Gardens was owned and operated by Busch Entertainment Corporation, not Anheuser.
It asserted various procedural defenses including insufficiency of process, lack of jurisdiction, failure to state a cause of action, and statute of limitations.
Anheuser contended that the motion to dismiss could be treated as a motion for summary judgment due to affidavits submitted.
They argued Holland acquiesced in the procedure used by the trial court and thus should be precluded from claiming error on appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Temples v. Florida Industrial Construction Co., 310 So.2d 326 (Fla. 2d DCA 1975)	A motion to dismiss may not substitute for a motion for summary judgment.	The court held the trial court erred by treating the motion to dismiss as a summary judgment motion.
Varnes v. Dawkins, 624 So.2d 349 (Fla. 1st DCA 1993)	On a motion to dismiss, the court must accept well-pled allegations as true and cannot consider extrinsic evidence or affirmative defenses.	The court emphasized the trial court improperly considered affidavits instead of limiting itself to the complaint’s allegations.
Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989)	Under certain circumstances, a trial court may decide ultimate jurisdictional facts on a motion to dismiss supported by affidavits.	The court noted this authority but found Anheuser did not rely on jurisdictional grounds for dismissal here.
Fish v. Post of Amvets #85, 560 So.2d 337 (Fla. 1st DCA 1990)	A motion to dismiss is not a motion for summary judgment and cannot rely on extrinsic evidence.	Used to support the conclusion that the trial court improperly considered affidavits.
Lewis v. Barnett Bank of South Florida, 604 So.2d 937 (Fla. 3d DCA 1992)	Reinforces that motions to dismiss cannot be treated as summary judgment motions.	Supported the court’s rejection of the trial court’s reliance on affidavits for dismissal.
DeWitt v. Zimmerman, 366 So.2d 46 (Fla. 4th DCA 1978)	It is inappropriate to decide ultimate facts on a motion to dismiss.	Used to underscore the error in the trial court’s dismissal based on affidavits.
Cherry v. Pirrello, 324 So.2d 158 (Fla. 3d DCA 1972)	Affirms the principle that motions to dismiss should not decide factual issues.	Further supported the court’s ruling reversing dismissal.
Hall v. Ricardo, 331 So.2d 375 (Fla. 3d DCA 1976)	Mislabeling a motion does not constitute error if the substance complies with procedural rules.	The court found Anheuser’s motion was substantively insufficient as a summary judgment motion.
Mack v. Commercial Industrial Park, Inc., 541 So.2d 800 (Fla. 4th DCA 1989)	Affidavits supporting motions for summary judgment must be timely filed.	The supplemental affidavit was untimely, making it improper for the trial court to rely on it.
Toffel v. Baugher, 111 So.2d 290 (Fla. 2d DCA 1959)	Consent or stipulation required to treat a motion to dismiss as a summary judgment motion.	Distinguished because Holland did not consent to such treatment.
City of Clearwater v. United States Steel Corp., 469 So.2d 915 (Fla. 2d DCA 1985)	Similar to Toffel, addressing consent to procedural treatment of motions.	Distinguished on the basis that no consent was given here.
Board of County Commissioners v. Aetna Casualty and Surety Co., 604 So.2d 850 (Fla. 2d DCA 1992)	Caution against converting motions to dismiss into motions for summary judgment to prematurely end litigation.	Used to caution counsel and support reversal of dismissal.
Pizzi v. Central Bank and Trust Co., 250 So.2d 895 (Fla. 1971)	A motion to dismiss tests legal sufficiency of a complaint, not factual issues.	Reiterated the proper function of a motion to dismiss.
Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla. 1963)	A motion for summary judgment determines if sufficient proof exists to support the pleadings.	Clarified the distinct purposes of motions to dismiss and summary judgment.

Court's Reasoning and Analysis

The court determined that the trial court erred by dismissing Holland’s amended complaint with prejudice on a motion to dismiss that relied on affidavits and extrinsic evidence. The court emphasized that a motion to dismiss is confined to the allegations of the complaint, which must be accepted as true, and does not permit consideration of evidence or affirmative defenses. Although Anheuser submitted affidavits claiming it did not own or control Busch Gardens on the injury date, the trial court improperly treated the motion to dismiss as a summary judgment motion by considering these affidavits.

The court acknowledged that under limited circumstances a trial court may decide jurisdictional facts on a motion to dismiss supported by affidavits, but Anheuser did not rely on jurisdictional grounds for dismissal here. The supplemental affidavit was also untimely under procedural rules. Furthermore, Holland did not consent to the motion being treated as a summary judgment motion, and Anheuser’s motion was substantively insufficient as a summary judgment motion.

Therefore, the dismissal was premature and legally improper. The court cautioned against converting motions to dismiss into summary judgment motions, underscoring the distinct procedural functions of each. The proper course is to allow the complaint’s allegations to stand unless legally insufficient, reserving factual determinations for later stages of litigation.

Holding and Implications

The court reversed the trial court’s dismissal of Holland’s amended complaint with prejudice and remanded the case with directions to reinstate the amended complaint.

The direct effect is that Holland’s complaint against Anheuser remains viable and the case proceeds beyond the pleading stage. The court’s decision clarifies and reaffirms procedural boundaries between motions to dismiss and summary judgment motions, cautioning trial courts and counsel to adhere strictly to the distinct purposes of these motions. No new precedent was created beyond enforcing existing procedural rules and standards.

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RUSSELL E. HOLLAND, APPELLANT, v. ANHEUSER BUSCH, INC., APPELLEE.

LAZZARA, Judge.

Russell Holland (Holland) appeals the trial court's order dismissing his amended complaint with prejudice. We conclude that the amended complaint states a valid cause of action. Accordingly, we reverse and remand with directions to reinstate the amended complaint.

Holland originally sued Anheuser-Busch, Inc. (Anheuser) in a three-count complaint alleging negligence, breach of contract, and breach of implied warranty based on injuries he allegedly suffered while a passenger on an amusement ride at Busch Gardens. Holland claimed that at the time of this incident Busch Gardens was a subsidiary of Anheuser.

Anheuser responded to the complaint by filing a perfunctory motion to dismiss. The motion alleged, without elaboration, insufficiency of process and service of process, lack of jurisdiction over the person and subject matter, failure to state a cause of action, and a violation of the applicable statute of limitations.

At the hearing on the motion, Anheuser filed an affidavit with the trial court indicating that it was not the proper party to sue, even though it had not raised this issue in the motion. The affidavit recited "[t]hat Busch Gardens is owned and operated by Busch Entertainment Corporation and not by ANHEUSER-BUSCH, INC." However, it failed to affirmatively establish that this relationship existed between Busch Gardens and Busch Entertainment Corporation on the day of Holland's injury.

The trial court granted the motion to dismiss and entered an order giving Holland thirty days to amend "versus the proper party defendant." Several days later, acting on a stipulation of counsel, the trial court rendered an amended order deleting the quoted language. The record does not reflect the basis for the stipulation.

Holland filed an amended three-count complaint alleging the same theories of liability in the original complaint. He again named Anheuser as the only defendant. However, his allegations as to Anheuser's ownership and control over Busch Gardens on the day he was injured were more extensive.

Anheuser responded with another motion to dismiss. The motion repeated the allegations of the first motion but added the assertion that Holland had "sued the wrong defendant as Busch Gardens is owned and operated by Busch Entertainment Corporation and not by ANHEUSER-BUSCH, INC. . . . ." Anheuser supported this new allegation by referring to the affidavit filed with the trial court at the hearing on the first motion to dismiss.

Holland argues that Anheuser was precluded from raising this new issue in its second motion to dismiss since it did not raise it in the first motion See Beach Development Corp. v. Stimson, 159 So.2d 113 (Fla. 2d DCA 1963). Given our reversal on another point, we need not reach this issue.

After the hearing on the second motion to dismiss, but before the trial court entered the order dismissing Holland's amended complaint with prejudice, Anheuser filed a supplemental affidavit. That affidavit repeated the facts of the first affidavit and added the significant fact, omitted from the first affidavit, that Anheuser did not own or have operational control over Busch Gardens on the day Holland was injured.

Neither the trial court's order nor the record suggests the basis for dismissal. However, it is clear from the briefs and arguments of the parties that the trial court's decision was based on a finding that Holland could not state a cause of action against Anheuser in that, based on the affidavits, it was not the proper party to sue. Such a ruling at this juncture of the proceedings was erroneous.

We conclude from the record that the trial court treated the motion to dismiss as a motion for summary judgment in determining that Holland had sued the wrong defendant. However, there is a clear distinction between the two motions. This court has held that "[a] motion to dismiss may not act as a substitute for a motion for summary judgment." Temples v. Florida Industrial Construction Co., 310 So.2d 326, 328 (Fla. 2d DCA 1975).

On a motion to dismiss for failure to state a cause of action, a trial court is restricted to a consideration of the well-pled allegations of the complaint. It must accept those allegations as true and then determine if the complaint states a valid claim for relief. A trial court has no authority to look beyond the complaint by considering the sufficiency of the evidence which either party is likely to produce, or any affirmative defense raised by the defendant. Varnes v. Dawkins, 624 So.2d 349, 350 (Fla. 1st DCA 1993).

We recognize that under certain circumstances a trial court, on a motion to dismiss supported by affidavit, has the authority to decide ultimate issues of fact relating to jurisdiction over the person, Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989); jurisdiction over the subject matter, Barnes v. Ostrander, 450 So.2d 1253 (Fla. 2d DCA 1984); venue, Merrill Lynch, Pierce, Fenner Smith, Inc. v. National Bank of Melbourne and Trust Co., 238 So.2d 665 (Fla. 4th DCA 1970); and sufficiency of service of process, Viking Superior Corp. v. W.T. Grant Co., 212 So.2d 331 (Fla. 1st DCA 1968). However, although raised in its motion to dismiss, Anheuser does not contend that the trial court's order of dismissal was based on lack of personal or subject matter jurisdiction or insufficiency of process or service of process.

In ruling on the second motion to dismiss, it is obvious that the trial court focused on matters outside the scope of the allegations of the amended complaint relating to Anheuser's proprietary interest in Busch Gardens on the day of the incident. Instead of accepting these allegations as true, the trial court improperly considered extrinsic evidence in the form of the affidavits in determining that Anheuser did not have such an interest and thus could not be sued by Holland. Fish v. Post of Amvets # 85, 560 So.2d 337 (Fla. 1st DCA 1990). See also Lewis v. Barnett Bank of South Florida, 604 So.2d 937, 938 (Fla. 3d DCA 1992) ("The law is well settled that a motion to dismiss a complaint is not a motion for summary judgment in which the court may rely on facts adduced in depositions, affidavits, or other proofs.") Although the trial court may ultimately be correct, it was inappropriate to make such a legal conclusion on a motion to dismiss. DeWitt v. Zimmerman, 366 So.2d 46 (Fla. 4th DCA 1978). Accord Cherry v. Pirrello, 324 So.2d 158 (Fla. 3d DCA 1972).

We have not overlooked Anheuser's arguments that we should treat its motion to dismiss as a mislabeled motion for summary judgment or that Holland acquiesced in the procedure used by the trial court and thus is precluded from claiming error on appeal. However, neither argument has merit.

Even if we were to conclude that Anheuser somehow mislabeled its motion to dismiss, the motion was substantively insufficient as a motion for summary judgment under Florida Rule of Civil Procedure 1.510 to enable the trial court to dismiss Holland's amended complaint with prejudice. Hall v. Ricardo, 331 So.2d 375, 376 (Fla. 3d DCA 1976) ("Mislabeling . . . does not constitute error where the substance of the motion is in accordance with the rules.") (emphasis added). If the trial court relied on the first affidavit, such reliance was inappropriate since the affidavit did not conclusively refute Holland's allegations of Anheuser's ownership and operational control over Busch Gardens on the day he was injured. If the trial court relied on the supplemental affidavit that attempted to cure this date deficiency, such reliance was contrary to rule 1.510(c) in that this affidavit was not filed within twenty days of the hearing on the motion. Mack v. Commercial Industrial Park, Inc., 541 So.2d 800 (Fla. 4th DCA 1989).

Finally, there is nothing in the record to establish that Holland consented or stipulated to the trial court treating the motion to dismiss as a motion for summary judgment. Thus, Toffel v. Baugher, 111 So.2d 290 (Fla. 2d DCA 1959), and City of Clearwater v. United States Steel Corp., 469 So.2d 915 (Fla. 2d DCA 1985), are distinguishable.

In closing, we again caution against converting a motion to dismiss into a motion for summary judgment for the purpose of attempting to terminate litigation. Board of County Commissioners v. Aetna Casualty and Surety Co., 604 So.2d 850, 851 (Fla. 2d DCA 1992). Counsel must remember that each motion has a separate purpose under our rules of civil procedure. A motion to dismiss is customarily designed to test the legal sufficiency of a complaint to state a cause of action, not to determine issues of ultimate fact. Pizzi v. Central Bank and Trust Co., 250 So.2d 895 (Fla. 1971). The function of a motion for summary judgment is to determine if the parties can offer sufficient proof to support the issues framed in their pleadings. Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla. 1963). Thus, "[t]rial counsel should choose carefully the field upon which they wage their battles" in pre-trial motion practice. Aetna, 604 So.2d at 851. If they choose incorrectly, as in this case, reversal is the inevitable result.

Reversed and remanded with directions.

RYDER, A.C.J., and SCHOONOVER, J., concur.