22 Fla. L. Weekly Supp. 81b
Online Reference: FLWSUPP 2201DAWLInsurance — Homeowners — Trial court erred in dismissing complaint brought against insurer by company that repaired water damage to insured’s home on grounds that assignment was made without insurer’s consent and that repair company failed to join insured as indispensable party where resolution of those issues required consideration of insurance policy not attached to complaint and were, thus, beyond four corners of complaint — Trial court’s dismissal of complaint is affirmed under “tipsy coachman doctrine” where trial court should have dismissed complaint with leave to amend due to failure to attach policy, but repair company invited error by repeatedly declining offer to amend and insisting on final order granting motion to dismiss
RESTORATION 1 OF THE TREASURE COAST a/a/o JAY DAWLEY, Appellant, v. FIRST PROTECTIVE INSURANCE COMPANY d/b/a FRONTLINE HOMEOWNERS INSURANCE, Appellee. Circuit Court, 19th Judicial Circuit (Appellate) in and for Martin County. Case No. 13-AP-7. L.C. Case No. 13-CC-92. April 4, 2014. Appeal from the County Court for Martin County, Hon. Curtis Disque. Counsel: Susan Fox, Fox & Loquasto, P.A., Orlando, for Appellant. Phillip Sheehe, Sheehe & Associates, P.A., Miami, for Appellee.
QUASHED. 40 Fla. L. Weekly D22c
(PER CURIAM.) Jay Dawley purchased a homeowner’s insurance policy from the Appellee. On November 15, 2012, the home sustained water damage, and Dawley hired the Appellant to perform repairs. As consideration for the repairs, Dawley assigned his rights and benefits under the policy to the Appellant. The Appellant filed a complaint for breach of contract against the Appellee, alleging that the Appellee underpaid it for services rendered. In response to the complaint, the Appellee filed a motion to dismiss and attached a copy of the insurance policy to it. On May 14, 2013, the trial court held a hearing and granted the motion to dismiss without prejudice.1
The order stated that the motion was granted on two grounds:
First, the Plaintiff failed to request from the Defendant that they be able to assign their rights required within the policy. Second, the Plaintiff failed to name an indispensable party.
Instead of amending the complaint, the Appellant then filed a motion asking the trial court to enter a final judgment of dismissal for appellate purposes, and the trial court entered that order on July 2, 2013.
The standard of review of an order granting a motion to dismiss is de novo. Burgess v. North Broward Hosp. Dist., 126 So. 3d 430, 433 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D2358a].
To initiate these proceedings, the Appellant filed the complaint and attached a copy of the assignment and bills for the services performed as Exhibit A, but it did not attach a copy of the homeowner’s insurance policy. Fla. R. Civ. P. 1.130(a) governs attachments to pleadings:
Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.
(Emphasis added). The complaint is based on the Dawleys’ homeowner’s insurance policy, yet the Appellant failed to attach a copy of the policy to the complaint, as required by the rule.2 In response to the complaint, the Appellee filed a motion to dismiss and attached a copy of the policy to the motion.
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. U.S. Bank Nat. Ass’n v. Knight, 90 So. 3d 824, 825 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D853b]. The Second District recently ruled on a case factually similar to the instant case. In NextGen Restoration Inc. v. Citizens Property Ins. Corp., 126 So. 3d 1255 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D2386a], the homeowner’s house was damaged by a water event, and he hired NextGen to repair the damage. Id. In consideration for the contract, the homeowner assigned his rights and benefits to NextGen, and when Citizens only paid a portion of NextGen’s invoice, NextGen filed a breach of contract lawsuit. Id. Citizens filed a motion to dismiss, and before a hearing was scheduled, it also filed an answer with affirmative defenses. Id. At the hearing on the motion to dismiss, Citizens began by arguing that NextGen failed to attach the insurance policy to the complaint but then raised further arguments beyond the motion to dismiss such as the invalidity of the assignment; it also provided the trial court with a copy of the insurance policy for review. Id. at 1256. NextGen tried to refocus the trial court on the motion to dismiss, but the trial court stated that “it sounds as though, really, the motion to dismiss is based on a standing issue.” Id. The trial court dismissed the complaint without leave to amend because it did not see a way for NextGen to cure the assignment issue. Id. The Second District reversed the trial court because it resolved an issue not before it on the motion to dismiss; instead, the trial court improperly engaged in a summary judgment analysis. Id.
In the instant case, the insurance policy was not attached to the complaint. However, it is clear from both the transcript and the final order that the trial court improperly considered it because it was attached to the motion to dismiss. At the hearing, the trial court stated “. . .because that’s part of the contract — I read it”, clearly referring to the homeowner’s insurance policy. Also, in its order, the trial court used the phrase “within the policy” when it was stating its ground for dismissal in the order. Both reasons listed in the dismissal order could only have been known to the trial court by reading the policy, which was beyond the four corners of the complaint and therefore improperly considered.
The Appellant argues that the trial court erred in dismissing the complaint on the grounds that the assignment was made without the Appellee’s consent and that the Appellant failed to join Mrs. Dawley as an indispensable party. While the trial court did err in dismissing the complaint for these reasons, the appellate court can affirm the decision under the tipsy coachman doctrine, which “allows an appellate court to affirm a decision despite a finding of error in the lower court’s reasoning as long as there is an alternative basis to justify affirming the decision.” Malu v. Security Nat. Ins. Co., 898 So. 2d 69, 73 (Fla. 2005) [30 Fla. L. Weekly S145a]. The trial court should have dismissed the complaint with leave to amend to be in compliance with Fla. R. Civ. P. 1.130(a) instead of considering the homeowners insurance policy improperly before it. Even though this basis was not argued by either party, it is apparent from the record that it exists, and the tipsy coachman doctrine can be applied “if there is any theory or principle of law in the record which would support the ruling.” Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010) [35 Fla. L. Weekly S493a] (quoting Robertson v. State, 829, So. 2d 901, 906 (Fla. 2002) [27 Fla. L. Weekly S829a]) (quoting Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) [24 Fla. L. Weekly S71a]). The Appellant repeatedly declined the trial court’s offers to amend the complaint and insisted on a final order granting the motion to dismiss. Under the invited error doctrine, a party cannot seek or invite error then take advantage of that error on appeal. Hernandez v. Gonzalez, 124 So. 3d 988, 993 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D2257a]. Therefore, the trial court is affirmed based on the tipsy coachman and invited error doctrines.
The Appellant also filed a motion for appellate attorney’s fees, and the Appellee filed a response. 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, Florida Statutes (2012), which states in relevant part:
(1) 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). The assignment issue notwithstanding, the Appellant was not the prevailing party in the appeal. Therefore, the motion for appellate attorney’s fees is denied. (VAUGHN, ROBY, JJ., and YACUCCI, Acting Circuit Judge, concur.)
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1The trial court offered to allow the Appellant time to amend the complaint, but the Appellant stated at the hearing that it wanted a final order for appellate purposes.
2The Appellant even acknowledged the failure to attach the policy in paragraph 10 of the complaint: “Plaintiff does not have a copy of the policy in its possession. A true and correct copy of the policy is in control of Defendant First Protective Insurance Company d/b/a Frontline Homeowners Insurance, and will be provided through discovery.”
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