Shapiro v. Tulin – Right to Amend

The parties to this case had a dispute over a very unique contract.  In short, the gentlemen entered into a contract whereby, upon  the death of one, the survivor would receive certain designated property and cash.  The Defendant in the case prevailed on a motion to dismiss.  The Plaintiff appealed, arguing that the trial court erred by looking beyond the four corners of the Complaint and not providing the Plaintiff the right to amend the Complaint.  The Fourth DCA agreed on both points and overturned the decision.

As explained by the Fourth DCA:

– The court went beyond the four corners of the complaint by ruling on the Defendant’s argument that the Plaintiff had not complied with s. 732.701, Fla. Stat.

– A motion to dismiss is not a pleading, which is defined by Rule 1.100, Fla. R. Civ. Pro., and, as such, Rule 1.190(a) gave the Plaintiff the right to amend the complaint even after the motion was filed.

Shapiro v. Tulin, 36 Fla. L. Wkly D1067 (Fla. 4th DCA May 18, 2011)