## Facts

- Randy Conte and Debbie Conte sued R & A Food Services, Inc. in a two-count complaint that included a breach-of-contract claim (Count I).
- R & A moved to dismiss Count I for failure to state a cause of action, asserting the affirmative defense of merger.
- The merger argument depended on documents and facts not apparent from the complaint and its attachment.
- The trial court dismissed Count I with prejudice based on merger.
- The Contes appealed only the dismissal with prejudice of Count I.

## Issues

1. Whether a court may dismiss a breach-of-contract claim with prejudice based on the affirmative defense of merger when the defense is not apparent on the face of the complaint and its attachments.
2. Whether relying on materials outside the pleadings to grant dismissal improperly converts a motion to dismiss into a summary judgment disposition.

## Decision

- The appellate court reversed the dismissal with prejudice of Count I and remanded with directions to reinstate the breach-of-contract claim.
- The complaint and its attachment did not supply sufficient information to establish merger as a bar to the claim.
- By relying on matters beyond the pleadings, the trial court effectively treated the motion to dismiss as a summary judgment motion without following required procedures.

## Legal Principles

- On a motion to dismiss for failure to state a cause of action, review is confined to the complaint and its attachments.
- An affirmative defense may support dismissal only when the defense appears on the face of the complaint.
- A plaintiff is not required to plead facts anticipating or negating affirmative defenses.
- Considering documents or facts outside the pleadings to resolve an affirmative defense at the dismissal stage is improper and may amount to an unauthorized summary judgment ruling.

## Conclusion

The court held that dismissal with prejudice based on merger was improper because the defense was not apparent from the complaint’s allegations and attachments, and the trial court could not rely on extrinsic materials to dispose of the claim at the pleading stage.


Conte v. R & A Food Servs., Inc., 644 So. 2d 133 (Fla. 2d DCA 1994)