22 Fla. L. Weekly Supp. 1016b
Online Reference: FLWSUPP 2209KUSHInsurance — Dismissal — Error to consider matters beyond four corners of complaint when ruling on motion to dismiss — Attorney’s fees awarded to prevailing appellant
ALLSTAR ANIMAL REMOVAL INC., a/a/o JEFFREY KUSHNER, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee. Circuit Court, 19th Judicial Circuit (Appellate) in and for St. Lucie County. Case No. 13-AP-24. L.T. Case No. 13-CC-607. November 5, 2014. Rehearing Denied March 4, 2015. Appeal from the County Court for St. Lucie County; Thomas J. Walsh, Jr., Judge. Counsel: Earl Higgs, Jr., Anthony-Smith Law, P.A., Orlando, for appellant. Kara Rockenbach, Methe & Rockenbach, P.A., West Palm Beach, and Karen Jerome Smith, Groelle & Salmon, P.A., West Palm Beach, for appellee.
(PER CURIAM.) The trial court went beyond the four corners of the complaint. See U.S. Bank Nat. Ass’n v. Knight, 90 So. 3d 824, 825 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D853b] (when a trial court considers a motion to dismiss, it is limited to the four corners of the complaint, and the allegations in the complaint must be taken as true); Restoration 1 of the Treasure Coast a/a/o Jay Dawley v. First Protective Insurance Company d/b/a Frontline Homeowners Insurance, 13-AP-7 (19th Cir.-Martin).
The Appellant filed a motion for appellate attorney’s fees. Appellate attorney’s fees can be awarded if authorized by contract or statute. Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So. 2d 252, 254 (Fla. 2006) [31 Fla. L. Weekly S762a]. Pursuant to Fla. R. App. P. 9.400, a party must specify the statutory, contractual, or substantive basis for an award. Id. The Appellant cites §627.428(1), Florida Statutes (2013) as the basis for the award:
Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
(Emphasis added). Since the Appellant is the prevailing party, we grant its motion for appellate attorney’s fees. We remand to the trial court for a determination of the correct amount.
Reversed and remanded. (COX, PEGG, JJ. and MORGAN, Acting Circuit Judge, concur.)
__________________ON MOTION FOR REHEARING
(PER CURIAM) The motion for rehearing is denied. (COX, PEGG, JJ., and MORGAN, Acting Circuit Judge, concur.)
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