5 Fla. L. Weekly Supp. 374a

Contracts — Insurance — Workers’ compensation — Professional athletes — Insurer’s action against employer who failed or refused to tender payment of premiums due and corporation which is allegedly continuation of and successor to employer and liable for employer’s debts — Allegations that employer agreed to pay premiums when due, but failed to do so, sufficient to state cause of action for breach of contract — Employer’s claim that breach of contract claims should be dismissed because insurer failed to timely conduct audits and adjust premiums due or, alternatively that insurer is estopped from seeking increased premiums under rules and regulations of National Council on Compensation Insurance not properly resolved on motion to dismiss — Allegations that insurer was entitled to audit employer’s records to calculate and adjust amount of earned premiums due, that insurer did conduct such an audit and calculated earned premiums due to be significantly in excess of estimated annual premium paid by employer were sufficient to state cause of action for breach of contract — Motion to dismiss breach of contract claims denied — Count alleging that insurer was entitled to indemnification because it provided coverage and paid claims on behalf of players who were not reported on quarterly earnings reports filed by employer with Division of Unemployment Compensation does not state cause of action — Professional athletes not entitled to workers’ compensation coverage unless injury occurred in activity which was imposed upon athlete by employer and was of substantial benefit to employer, but was not associated with playing professional sport — Because under facts alleged, players were not entitled to workers’ compensation as matter of law, plaintiff was not legally entitled to indemnification for benefits obtained — Motion to dismiss count seeking indemnification granted without prejudice to plaintiff’s amending complaint to allege facts that would establish that exclusion was not applicable — Corporations — Allegations regarding successor corporation’s liability as continuation and successor to administratively dissolved employer corporation sufficient to withstand motion to dismiss — Provisions of asset purchase agreement are outside four corners of complaint and cannot be considered in ruling on motion to dismiss — Successor corporation’s motion to strike amended complaint as sham denied without prejudice to corporation’s renewing motion if it can demonstrate that allegations are patently false — Attorney’s fees — Lawsuit not so completely devoid of justiciable issue of fact or law as to warrant award of attorney’s fees to defendants — Successor corporation’s motion for summary judgment is premature where discovery is still in progress and pleadings raise genuine issues of material fact — Default — Motion for entry of default against employer corporation on ground that corporation is dissolved and therefore not legally permitted to defend action against it denied in view of corporation’s submission of Certificate of Active Status from Department of State — Amended complaint — Plaintiff was not required to obtain leave of court before filing second amended complaint where no responsive pleadings had been filed — Motions to dismiss, for summary judgment, and for attorney’s fees do not constitute responsive pleadings — Motion to dismiss second amended complaint on ground that plaintiff failed to obtain leave of court prior to filing amendment is denied

LIBERTY MUTUAL INSURANCE CO., Plaintiff, v. TAMPA BAY STORM, INC., PIGSKIN, INC., L.C. and ROBERT GRIES, Defendants. 13th Judicial Circuit in and for Hillsborough County, General Civil Division. Case No. 97-03466, Division O (Division G, as of January, 1998). January 26, 1998. William Fuente, Judge. Counsel: Scott J. Topolski, Boca Raton, for Plaintiff. Frederick L. Mouser, St. Petersburg, for Defendant Pigskin, Inc. Herb Fiss, Tampa, for Defendants Robert Gries and Tampa Bay Storm, Inc.

ORDER ON PRE-TRIAL MOTIONS

THIS CAUSE came before the Court for hearing on December 16, 1997 on the following motions: (1) Pigskin, Inc., L.C.’s (hereinafter referred to as Pigskin) Motion to Dismiss Amended Complaint; (2) Pigskin’s Motion to Strike Plaintiff’s Amended Complaint as a Sham, Motion for Attorney Fees and Summary Judgment; (3) Tampa Bay Storm Inc.’s (hereinafter referred to as Tampa Bay) Motion to Dismiss Counts I, II, and III of Amended Complaint; (4) Liberty Mutual Insurance Co.’s (hereinafter referred to as Liberty Mutual) Cross Motion for Leave to File a Second Amended Complaint; (5) Liberty Mutual’s Cross Motion to Enter Default Against Tampa Bay; and (6) Tampa Bay’s Motion to Dismiss Plaintiff’s Second Amended Complaint. Having considered all of the motions, arguments of counsel, and being otherwise informed in the premises, the Court makes the following adjudications.

FACTUAL BACKGROUND

Plaintiff issued workers’ compensation insurance policies to Defendant Tampa Bay. Pursuant to these policies, Tampa Bay agreed to pay all premiums when due. Plaintiff made repeated demands for such payment, however, Tampa Bay failed or refused to tender payment of the premiums due. Plaintiff alleges two counts of breach of contract against Tampa Bay. (See Amended Complaint at paras. 1-40, Counts I and II). Plaintiff also seeks damages pursuant to Section 440.381(7), Florida Statutes for indemnification of all benefits paid to or on behalf certain employees. (See Amended Complaint at paras. 41-48, Count III). Plaintiff further alleges that Defendant Pigskin is a continuation of and successor to Tampa Bay and is liable for Tampa Bay’s debts, including the unpaid premiums. (See Amended Complaint at paras. 49-54, Count IV).

DISCUSSION

I. PIGSKIN’S MOTION TO DISMISS AMENDED COMPLAINT

A. CONSIDERATION OF A MOTION TO DISMISS

A motion to dismiss tests the legal sufficiency of a complaint to determine whether it states a cause of action. It is not a vehicle for the court to determine ultimate issues of fact. McWhirter, Reeves, McGothlin, Davidson, Reif & Bakas, P.A. v. Weiss, 22 Fla. L. Weekly D2609 (Fla. 2d DCA 1997) (citing Holland v. Anheuser Bush, Inc., 643 So. 2d 621, 623 (Fla. 2d DCA 1994)). The issue before a court ruling upon a motion to dismiss is whether the complaint states a valid cause of action. H.E. Temples v. Florida Industrial Construction, Co., Inc., 310 So. 2d 326, 327 (Fla. 2d DCA 1975). In adjudicating a motion to dismiss, a court “must confine itself strictly to the allegations within the four corners of the complaint.” Weiss, 22 Fla. L. Weekly D2609 (citing Pizza v. Central Bank & Trust Co., 250 So. 2d 895, 897 (Fla. 1971)). On a motion to dismiss, the court must accept as true the ultimate facts alleged by the plaintiff. Goldsmith v. Sorrento Holding Corp., 119 So. 2d 808, 809 (Fla. 2d DCA 1960); See also Ralph v. City of Daytona Beach, 471 So. 2d 1, 2 (Fla. 1983) (in considering a motion to dismiss for failure to state a cause of action, the allegations of the complaint are assumed to be true and all reasonable inferences therefrom are allowed in favor of the plaintiff). Upon accepting the facts alleged as true, the court must determine whether those facts make an actionable case under applicable legal principles. Binz v. Helvetia Florida Enterprises, Inc., 104 So. 2d 124, 126 (Fla. 3d DCA 1985) (citing Connolly v. Sebedo, Inc., 89 So. 2d 482, 484 (Fla. 1956) (a motion to dismiss a complaint must be decided on questions of law only)).

B. DISMISSAL WITHOUT PREJUDICE

If dismissal is warranted, a court should not dismiss a complaint with prejudice if it supports a cause of action on any ground. See Dionne v. Columbus Mills, Inc., 311 So. 2d 681, 683 (Fla. 2d DCA 1975). “Dismissal of a complaint with prejudice is a severe sanction which should only be granted when the pleader has failed to state a cause of action and it conclusively appears that there is no possible way to amend the complaint in order to state a cause of action.” Drakeford v. Barnett Bank of Tampa, 694 So. 2d 822, 824 (Fla. 2d DCA 1997); See also Madison County v. Foxx, 636 So. 2d 39, 51 (Fla. 1st DCA 1994). “When it appears from a conclusory allegation that a cause of action can be stated and the complaint cured by amendment, a trial court should not dismiss with prejudice.” Drakeford, 694 So. 2d at 824; See also Mathieson v. General Motors Corp., 529 So. 2d 761, 762 (Fla. 3d DCA 1988).

The Court has reviewed Plaintiff’s Amended Complaint and determines that Count I for breach of contract, Count II for breach of contract and Count IV for continuation corporation liability allege ultimate facts necessary to state a cause of action against Defendant. However, Count III for damages pursuant to Section 440.381 (7), Florida Statutes does not. The Court cannot conclusively conclude that Count III cannot state a cause of action if amended. Therefore, dismissal without prejudice is appropriate.

Pigskin moves for dismissal of the Amended Complaint on the grounds that it fails to state ultimate facts and/or conclusions of law necessary to set forth a claim for relief. (See generally Pigskin’s Motion to Dismiss).

C. COUNTS I AND II

The Amended Complaint alleges that Defendant Tampa Bay breached its contractual duty by refusing to pay the premiums due under the first and second insurance policies issued to Defendant by Plaintiff. (See generally Amended Complaint Counts I and II). The Amended Complaint alleges that pursuant to Part Five D of the first and second policies, Tampa Bay agreed to “pay premiums when due,” and that Tampa Bay failed and refused to pay the balance due and owing on the policies. Plaintiff alleges that such failure constitutes a breach of the contracts. (See Amended Complaint at paras. 23, 25, 26, 34, 36, 37). The facts alleged by Plaintiff are sufficient to state a breach of contract action upon which relief can be granted.

D. COUNT III

Plaintiff alleges that it is entitled to indemnification pursuant to Section 440.381 (7), Florida Statutes because it provided coverage and paid claims on behalf of players who were not reported on quarterly earnings reports filed by Tampa Bay with the Florida Division of Unemployment Compensation. (See Amended Complaint at para. 47). The workers’ compensation statute defines an “employer” as “. . . every person carrying on any employment . . . .” § 440.02 (14), Fla. Stat. (1997). “Employment” includes . . . all private employments in which four or more employees are employed by the same employer . . .” § 440.02 (15)(b)(2), Fla. Stat. (1997). However, “[e]mployment does not include service performed by or as: . . . [p]rofessional athletes, such as professional boxers, wrestlers, baseball, football, basketball, hockey . . . and similar players . . .” § 440.02 (15)(c)(3), Fla. Stat. (1997). This statutory exclusion for workers’ compensation for professional football players does not apply only when the athlete is “playing during the regularly scheduled football season after making the team roster. The exclusion becomes operative whenever a professional athlete is injured incident to performing the contemplated activities of his employment as a professional athlete, whether during pre-season camp, during regular season practice, or during a regularly scheduled game.” Rudolph v. Miami Dolphins, LTD., 447 So. 2d 284, 288 (Fla. 1st DCA 1983), rev. denied, 453 So. 2d 45 (Fla. 1984).

The Amended Complaint fails to allege any facts which would support the conclusion that the statutory exclusion is inapplicable. The exclusion would not apply if the activity causing the injury was “not the kind of work or labor particularly associated with playing professional [football], but was an additional activity imposed upon [the players] by the employer and to the employer’s substantial benefit.” Miles v. Montreal Baseball Club, 379 So. 2d 1325, 1326 (Fla. 1st DCA 1980) (professional baseball player was injured in a diving accident which the court determined was the type of work described above; thus, compensation coverage existed), cert. denied, 389 So. 2d 1113 (Fla. 1980). In the instant action, under the facts alleged, the players were not entitled to workers’ compensation as a matter of law. Accordingly, Plaintiff is not legally entitled to indemnification for benefits paid. Count III does not allege sufficient facts to state a cause of action. Since it is possible for this insufficiency to be cured by amendment, Count III is dismissed without prejudice, and Plaintiff has leave to amend Count III. See supra, Section I(B) of this Order, Dismissal Without Prejudice.

E. COUNT IV

Plaintiff alleges that Tampa Bay is an administratively dissolved Florida corporation and that Pigskin is a limited liability company and a “continuation of and successor to Tampa Bay for purposes of operating an Arena Football League franchise known as the Tampa Bay Storm, which franchise is the same franchise formerly operated by Tampa Bay.” (See Amended Complaint at paras. 4, 5, 52). Plaintiff further alleges that Pigskin was formed approximately two weeks after Plaintiff issued its final bill for payment of premiums due under the first and second policies. According to Plaintiff, the following common elements exist between Pigskin and Tampa Bay: (a) the same business — operation of an indoor professional football franchise; (b) the same franchise — the Tampa Bay Storm — which is the principal asset of both Pigskin and Tampa Bay; (c) the franchise’s membership in the Arena Football League; (d) the same principal business address; (e) the same location where games are played — the Thunderdome; (f) commonality in numerous vending and/or service contracts; and (g) commonality in numerous and/or management personnel. For these reasons, Plaintiff alleges that Pigskin is a continuation of and successor to Tampa Bay and is therefore liable for the prior corporation’s debts, including the premiums due. (See Amended Complaint at paras. 51-53).

Pigskin contends that the Amended Complaint lacks any allegations of “fraud, fraud on creditors, [or] an agreement by Pigskin to assume liabilities sued upon, or any factual allegation which, if recognizable in law or equity, would impose an obligation on Defendant Pigskin.” According to Defendant, the “bare allegation that Pigskin purchased assets and continued to operate the business” is insufficient to impose liability upon it. (See Pigskin’s Motion to Dismiss at paras. 1, 3).

Under traditional corporate law principles, the liabilities of a predecessor corporation are not automatically imposed upon a successor corporation unless: “(1) the successor expressly or impliedly assumes obligations of the predecessor, (2) the transaction is a de facto merger, (3) the successor is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid the liabilities of the predecessor.” Bernard v. Kee Manufacturing Co., Inc., 409 So. 2d 1047, 1049 (Fla. 1982); Bernard v. Kee Manufacturing Co., Inc., 394 So. 2d 552, 553 (Fla. 2d DCA 1981), approved by id.; Amjad Munin, M.D., P.A. v. Azar, 648 So. 2d 145, 151 (Fla. 4th DCA 1994). A continuation of business arises where a successor corporation “is merely a continuation or reincarnation of the predecessor corporation under a different name. The purchasing corporation is merely a new hat for the seller, with the same or similar entity or ownership. The key element of a continuation is a common identity of the officer’s directors and stockholders in the selling and purchasing corporation. The change is in form, but not in substance.” Azar, 648 So. 2d at 151 (quoting Bud Antle, Inc. v. Eastern Foods, Inc., 758 F.2d 1451, 1458 (11th Cir.) (en banc), reh’g denied, 765 F.2d 154 (1985). A mere continuation of a business is evidenced by such factors as “the same management, personnel, assets, location and stockholders.” Azar, 648 So. 2d at 154.

Plaintiff alleges that Pigskin is a “continuation of and successor to Tampa Bay.” (See Amended Complaint at paras. 5, 52). Additionally, Plaintiff also alleges several common features between Tampa Bay and Pigskin, including commonality in numerous and/or management personnel, assets and location. (See Amended Complaint at paras. 51-53). The Court determines that these are sufficient allegations of ultimate fact, accepted as true, which make an actionable case under the applicable legal principles discussed above. See Binz v. Helvetia Florida Enterprises, Inc., 104 So. 2d 124, 126 (Fla. 3d DCA 1985). It is not this Court’s function to determine these ultimate issues of fact or whether Pigskin is actually a continuation of and successor to Tampa Bay; this is the function of a jury. See McWhirter, Reeves, McGothlin, Davidson, Reif & Bakas, P.A. v. Weiss, 22 Fla. L. Weekly D2609 (Fla. 2d DCA 1997) (a court cannot determine ultimate issues of fact on a motion to dismiss). See also supra, Section IA, Consideration of Motion to Dismiss. Moreover, this Court is strictly confined within the four corners of the amended complaint. See Weiss, 22 Fla. L. Weekly D2609 (Fla. 2d DCA 1997) (citing Pizza v. Central Bank & Trust Co., 250 So. 2d 895, 897 (Fla. 1971)). At the hearing Defendant submitted the Agreement of Purchase and Sale of Assets to the Court, and directed the Court’s attention to and highlighted the section entitled, “Assets and Liabilities Excluded,” wherein payments “due to or from Tampa Bay Storm for any transaction, or event, relating to the Liberty Mutual Insurance policy and any litigation relating to the same” are “retained by Seller and are expressly excluded from the Property being purchased by or transferred to Buyer.” (See Agreement of Purchase and Sale of Assets to the Court, Section 1.02). Since it is confined to the four corners of the Amended Complaint, the Court cannot consider this provision or any other portion of the document because it was not annexed to the Amended Complaint as an exhibit and therefore not incorporated into or made a part of the Amended Complaint. See Fla. R. Civ. P. 1.130 (b) (“Any exhibit attached to a pleading shall be considered a part thereof for all purposes”). Accordingly, at this stage in the proceedings, the Agreement of Purchase and Sale of Assets has no bearing on this Court’s adjudication of Pigskin’s Motion to Dismiss. Count IV of the Amended Complaint alleges the ultimate facts necessary to state a cause of action for continuation corporation liability.

Counts I, II and IV of the Amended Complaint all state causes of action against Defendant Pigskin. Only Count III fails to do so and it is therefore dismissed without prejudice to Plaintiff’s right to amend.

II. TAMPA BAY’S MOTION TO DISMISS COUNTS I, II AND III OF AMENDED COMPLAINT

A. COUNTS I AND II

Tampa Bay moves to dismiss Counts I, II and III of the Amended Complaint. With regard to Counts I and II, Defendant asserts the following grounds for dismissal: (1) Plaintiff claims that more premiums are due as a result of the alleged audits of Defendant’s records; (2) Plaintiff’s policy contract places a limitation period under which Plaintiff must conduct such audits and adjust premiums due; (3) Plaintiff’s policy contracts are also administered and controlled by the National Council on Compensation Insurance, (hereinafter referred to as NCCI), and that therefore, the contractual relationship between the parties incorporates and is controlled by NCCI; and (4) Plaintiff failed to timely conduct its audit, or alternatively is estopped from seeking increased premiums under the rules and regulations of NCCI. (See generally Tampa Bay’s Motion to Dismiss).

The Amended Complaint alleges that NCCI is “the administrator of the Florida Plan, and in this role, is designated by Liberty Mutual to serve as carrier for Tampa Bay’s workers’ compensation insurance.” (See Amended Complaint at para. 18). The Amended Complaint also alleges that Plaintiff was entitled to audit the records of Defendant to calculate and adjust the amount of earned premiums due, and that Plaintiff did conduct such audit and calculated the amount of earned premiums due to be “significantly in excess of the estimated annual premium paid by Defendant.” (See Amended Complaint at paras. 21, 22, 32, 33). For purposes of the breach of contract claims, these are sufficient allegations of ultimate fact to state a cause of action. The Court must accept these allegations as true and draw all reasonable inferences therefrom in Plaintiff’s favor. See Ralph v. City of Daytona Beach, 471 So. 2d 1, 2 (Fla. 1983). The Court cannot determine ancillary issues related to these “ultimate facts” such as those raised by the grounds asserted by Tampa Bay. See McWhirter, Reeves, McGothlin, Davidson, Reif & Bakas, P.A. v. Weiss, 22 Fla. L. Weekly D2609 (Fla. 2d DCA 1997) (a court cannot determine ultimate issues of fact on a motion to dismiss). The issues of whether the audit was timely conducted and issues related to estoppel (see Tampa Bay’s Motion to Dismiss at paras. 2-4) cannot be determined at this stage in the proceedings. These issues implicate defenses to Plaintiff’s cause of action. Therefore, they must be raised in a defensive pleading rather than by a motion to dismiss. See H.E. Temples v. Florida Industrial Construction, Co., Inc., 310 So. 2d 326, 327 (Fla. 2d DCA 1975).

B. COUNT III

Defendant claims that Count III of the Amended Complaint should be dismissed because Tampa Bay is not an “employer” as defined by Chapter 440, Florida Statutes. (See Tampa Bay’s Motion to Dismiss at page 2). This argument has merit, and the Court dismisses Count III of the Amended Complaint without prejudice and with leave to amend for the same reasons asserted in Sections I(B) and (D) of this Order.

Accepting all of the allegations relating to Counts I and II of the Amended Complaint as true, Plaintiff has alleged sufficient facts to state a cause of action upon which relief can be granted and to withstand a motion to dismiss. However, Count III fails to state a cause of action.

III. PIGSKIN’S MOTION TO STRIKE PLAINTIFF’S AMENDED COMPLAINT AS A SHAM¹

Pigskin moves to strike the Amended Complaint as a sham on the ground that the allegations contained therein and the “underpinning for a cause of action,” are a “mere fiction,” “undoubtedly false,” “insufficient as a matter of law” and “a facade.” (See Pigskin’s Motion to Strike at paras. 10, 11). Florida Rule of Civil Procedure 1.150 authorizes a court to strike sham pleadings. See Fla. R. Civ. P. 1.150 (a). A motion to strike a pleading admits the truth of all well pleaded facts. Sargent, Repka, Covert, Steen & Zimmet, P.A. v. HAMC Industries, Inc., 597 So. 2d 427, 429 (Fla. 2d DCA 1992). A court cannot dismiss a pleading as a sham unless the pleading is “so undoubtedly false as not to be the subject of a genuine issue of fact.” “A pleading may be dismissed as a sham only when it is palpably or inherently false and, from the plain or conceded facts in the case, must have been known to the party pleading it to be untrue.” Kimball v. Florida Department of Health & Rehabilitative Services, 682 So. 2d 637, 639 (Fla. 2d DCA 1996) (citations omitted).

Motions to strike are not favored by courts, and all doubts should be resolved in favor of the pleadings. Moreover, a motion to strike a pleading as a sham should not be granted because the pleading is inartfully drafted or contains correctable omissions. Id. Assuming the veracity of the allegations contained in the Amended Complaint and permitting all inferences and doubts therefrom to favor Plaintiff, the Court determines that the Amended Complaint was not filed in bad faith and is not inherently or palpably false. See Kimball, 682 So. 2d at 639. Accordingly, the Court will not strike the pleading as a sham, and Defendant’s Motion to Strike is denied, without prejudice to renew same if Defendant can demonstrate the allegation is patently false.

IV. MOTION FOR ATTORNEY FEES

Defendant claims that it is entitled to attorney fees pursuant to Section 57.105, Florida Statutes because the Amended Complaint shows a complete absence of justiciable issue in law or equity. (See Pigskin’s Motion for Attorney Fees at para. 11). In order for Defendant’s motion to be granted, there must be a “complete absence of any justifiable issue of law or fact raised by the complaint . . . of the losing party.” This requires a “total or absolute lack of a justifiable issue, which is tantamount to a finding that the action is frivolous.” In order to award attorney fees, a court must find that the “action is so clearly devoid of merit both on the facts and the law as to be completely untenable.” Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501, 505 (Fla. 1982) (holding that trial court erred in assessing attorney’s fees against losing party where claims were not frivolous or entirely devoid of even arguable substance), overruled in part on other grounds by Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). The terminology of Section 57.105, Florida Statutes “is analogous to” the Supreme Court of Florida’s definition of “a frivolous appeal.”

A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any prospect that it can ever succeed. It must be one so clearly untenable, or the insufficiency of which is so manifest on the bare inspection of the record and assignments of error, that its character may be determined without argument or research. An appeal is not frivolous where a substantial justiciable question can be spelled out of it, or from any part of it.

Id. (quoting Treat v. State ex rel. Mitton, 163 So. 883, 883-84 (Fla. 1935); See also Bay Financial Savings Bank v. Hook, 648 So. 2d 305, 307 (Fla. 2d DCA 1995) (holding that attorney’s fees will not be awarded unless the pleading reveals a “total or absolute lack of justiciable issue, which is tantamount to a finding that the action is frivolous . . . and so clearly devoid of merit both on the facts and the law as to be completely untenable”). See also Brinson v. Creative Aluminum Products, 519 So. 2d 59, 60 (Fla. 2d DCA 1988) (citing Ferm v. Saba, 444 So. 2d 976 (Fla. 2d DCA 1983)); Holmes v. State, 403 So. 2d 1007, 1008 (Fla. 2d DCA 1981) (reasoning that the language of Section 57.105, Florida Statutes has been equated to a finding of frivolousness).

This Court has dismissed Count III of the Amended Complaint without prejudice and with leave to amend. This dismissal, however, does not mean that the Court determined that Count III was frivolous or untenable. See e.g. Stoddard v. Wohlfahrt, 573 So. 2d 1060, 1063 (Fla. 5th DCA 1991) (holding that an award of attorney fees was improper on the basis of lack of a justiciable issue where the court specifically granted plaintiff leave to amend his complaint on two occasions, and the order dismissing the second amended complaint indicated that the court must seriously consider certain issues), cause dismissed, 581 So. 2d 1310 (Fla. 1991). The mere fact that Plaintiff has failed to state a cause of action does not necessarily mean that its lawsuit completely lacked any justiciable issue of law or fact. Strothman v. Henderson Mental Health Center, Inc., 425 So. 2d 1185, 1185 (Fla. 4th DCA 1983) (holding that the mere failure to state a cause of action in an original or amended pleading is not sufficient, in and of itself, to support a finding that a claim is so lacking in merit as to justify an award of attorney’s fees pursuant to Section 57.105).

Not every party that prevails in a motion to dismiss for failure to state a cause of action is automatically entitled to attorneys fees under Section 57.105, Florida Statutes. Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501, 505-06 (Fla. 1982); See also Sepner v. Village of Royal Palm Beach, 444 So. 2d 68, 69 (4th DCA 1984). Rather, a court must predicate its finding that the losing party’s position is “virtually frivolous” upon competent evidence presented at a hearing on attorney’s fees or otherwise before the court and in the record. Strothman, 425 So. 2d at 1185-86. Upon reviewing the record and the documents submitted to the Court, this Court is unable to make the requisite findings to support an award of attorney’s fees.

At the hearing Pigskin submitted the Agreement of Purchase and Sale of Assets wherein payment owed to Liberty Mutual was retained by Seller and expressly excluded from the property transferred or sold to Buyer. (See Agreement of Purchase and Sale of Assets § 1.02; See also Pigskin’s Motion to Strike, Motion for Attorney Fees and Summary Judgment at para. 4). The Court has given extensive consideration to what effect this exclusion has on Pigskin’s motions. The exclusion would be relevant to Count IV of the Amended Complaint against Pigskin. However, it may still be possible for Pigskin to be liable based on principles of continuation or successor corporation liability notwithstanding contractual provisions excluding liability. This action is not of such a nature that it is “unable to survive under any known circumstances.” See contra Bay Financial Savings Bank v. Hook, 648 So. 2d 305, 307 (Fla. 2d DCA 1995) (defendant raised res judicata; attorney’s fees were awarded; court reasoned that the lawsuit was “one of those uncommon actions which could not survive under any known circumstance” because it was “completely untenable”). In view of applicable law, this Court cannot conclude that the Amended Complaint is completely devoid of even arguable substance and therefore, completely untenable or frivolous. A review of the Amended Complaint reveals that there are indeed factual and legal issues upon which Plaintiff based his lawsuit and that Counts I, II and IV state a cause of action. Since this Court cannot conclude that there is a complete absence of justiciable issue of fact or law, an award of attorneys fees is improper, and Defendant’s Motion for Attorney Fees is denied.

V. PIGSKIN’S MOTION FOR SUMMARY JUDGMENT

Pigskin contends that it is entitled to the entry of summary judgment since there is no material issue of law or fact. (See Pigskin’s Motion for Summary Judgment at para. 11). A court may grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). The plain wording of this rule indicates that documents obtained through discovery are necessary in order to adjudicate a motion for summary judgment. A court should not grant summary judgement “until the facts have been sufficiently developed for the court to be reasonably certain that no genuine issue of material fact exists.” Grandauer v. Publix Super Markets, Inc., 657 So. 2d 932, 933 (Fla. 2d DCA 1995). “As a general rule, a court should not enter summary judgment when the opposing party has not completed discovery.” Id. (citing Singer, Colby, v. Ellis, 562 So. 2d 356 (Fla. 2d DCA 1990)); See also ACT Corp. v. Devane, 672 So. 2d 611, 613 (Fla. 5th DCA 1996) (unlike a motion to dismiss, a motion for summary judgment “is generally not made until the facts are developed through discovery;” the court did not err by denying as premature a motion for summary judgment and by refusing to entertain the motion until discovery was completed); See SICA v. SAM Caliendo Design, Inc., 623 So. 2d 859 (Fla. 4th DCA 1993) (trial court erred in entering summary judgment for plaintiff where discovery had not been completed); Commercial Bank of Kendall v. Heiman, 322 So. 2d 564 (Fla. 3d DCA 1975) (entry of summary judgment was premature and therefore reversed). Since discovery is still in progress and since the pleadings themselves raise genuine issues of material fact, it would be premature and inappropriate for this Court to enter summary judgment in favor of Pigskin.² Accordingly, Defendant’s Motion for Summary Judgment is denied as premature. The Court declines to rule on the merits of this motion at this time.

VI. PLAINTIFF’S CROSS MOTION TO ENTER DEFAULT AGAINST DEFENDANT TAMPA BAY

Plaintiff moves for the entry of a default and ultimately a default judgment against Tampa Bay on the ground that Tampa Bay is a dissolved Florida corporation and is therefore legally not permitted to defend any action against it. (See Plaintiff’s Cross Motion to Enter Default at paras. 5-7). A dissolved corporation which has not been restored to active status cannot defend a lawsuit. See generally Marinelli v. Weaver, 208 So. 2d 489 (Fla. 2d DCA 1968). In response to Plaintiff’s motion, Tampa Bay submitted the corporation’s Certificate of Active Status from the Florida Department of State which certifies that Tampa Bay filed its most recent annual report on November 20, 1997 and “its status is active.” The certification further states that the corporation has not filed any articles of dissolution. (See Exhibit A, Tampa Bay’s Memorandum of Law in Opposition to Plaintiff’s Cross-Motion to Enter Default). Since Tampa Bay has not filed for dissolution, it has standing to defend this action. Accordingly, Plaintiff’s Cross-Motion to Enter Default Against Tampa Bay is denied.

VII. PLAINTIFF’S CROSS MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

“A party may amend a pleading once as a matter of course at any time before a responsive pleading is served . . . Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. Leave of court to amend shall be given freely when justice so requires.” Fla. R. Civ. P. 1.190 (a) (emphasis added). See also Carter v. Ferrell, 666 So. 2d 556, 557 (Fla. 2d DCA 1995) (citing Craig v. East Pasco Medical Center, Inc., 650 So. 2d 179 (Fla. 2d DCA 1995)); Ohio Cas. Ins. Co. v. MRK Const., Inc., 602 So. 2d 976 (Fla. 2d DCA 1992) (pursuant to Florida public policy, courts should freely permit amendments of pleadings).

Defendant Gries and Defendant Tampa Bay contend that Plaintiff’s Cross Motion for Leave to File a Second Amended Complaint should be denied because permitting amendment would prejudice defendants, Plaintiff has abused its privilege to amend, and amendment would be futile. (See Memorandum in Support of Defendants’ Motions to Dismiss Plaintiff’s Complaints and in Opposition to Plaintiff’s Cross Motion for Leave to File a Second Amended Complaint).³ Plaintiff contends that since no responsive pleading has yet to be filed in this action, it properly filed its Second Amended Complaint without leave of court. However, it now seeks leave of court “in order to expedite this case and to resolve any confusion and/or doubt as to whether or not Plaintiff has complied with the requirements” of Florida Rule of Civil Procedure 1.190. (See Plaintiff’s Cross Motion for Leave to File a Second Amended Complaint at para. 7, 8).

Pigskin’s Motion to Dismiss Plaintiff’s Complaint was granted without prejudice and Plaintiff had leave of this Court to file an amended Complaint. Plaintiff had thirty days from the entry of the dismissal order to file an amended complaint. (See August 16, 1997 Order at para. 3). Plaintiff filed its Amended Complaint on August 13, 1997, within the time period prescribed by this Court. None of the Defendants in this action filed a “responsive pleading” prior to the filing of the Second Amended Complaint. Moreover, no responsive pleading has ever been filed in this action. Defendants have only filed motions. Motions to dismiss, motions for summary judgment and the other motions filed by Defendants do not constitute “responsive pleadings” for purposes of the rules regarding amendment of pleadings. The plain language of Florida Rule of Civil Procedure 1.110 sets forth the “general rules of pleading.” This rule makes it abundantly clear that a motion cannot constitute a pleading. See e.g. Fla. R. Civ. P. 1.110 (h) (“This subdivision shall not apply to proceedings that may be initiated by motion under these rules). There are several cases which illustrate the dichotomy between motions and responsive pleadings. See e.g. Punta Gorda Ready Mixed Concrete, Inc. v. Green Manor Construction Co., Inc., 166 So. 2d 889, 889 (Fla. 1964) (the defendant filed a motion to dismiss but thereafter filed no other motion or responsible pleading); Iona-McGregor Fire Protection & Rescue District, 674 So. 2d 858, 860 (Fla. 2d DCA 1996) (affirmative defense should have been raised in a responsive pleading rather than on a motion to dismiss); Lowery v. Lowery, 654 So. 2d 1218, 1219-20 (Fla. 2d DCA 1995) (same); Washington Security Co., v. Tracy’s Plumbing & Pumps, Inc., 166 So. 2d 680, 685 (Fla. 2d DCA 1964) (allegations of the complaint were sufficient to withstand a motion to dismiss and to require the defendant to file a responsive pleading); Dyson v. Dyson, 483 So. 2d 546, 546 (Fla. 1st DCA 1986) (same).

Since no responsive pleading such as an answer was filed by any of the Defendants, Plaintiff did not have to obtain leave of court before filing its Second Amended Complaint. The Second Amended Complaint was properly filed without leave of court. Therefore, Plaintiff’s motion to obtain leave of court is moot. Nevertheless, the Court will grant Plaintiff leave to file its Second Amended Complaint. The rule permitting a party to amend its complaint once as a matter of course before a responsive pleading is served has not been construed to deprive the court of the discretion to “withhold” leave to amend a pleading to which no response has been served. However, a denial of leave to amend in such cases constitutes an abuse of discretion. Volpicella v. Volpicella, 136 So. 2d 231, 232 (Fla. 2d DCA 1962). Therefore, this Court will not withhold leave to amend notwithstanding the fact that leave to amend is not necessary. Plaintiff’s Cross-Motion for Leave to File a Second Amended Complaint is granted.

VIII. TAMPA BAY’S MOTION TO DISMISS SECOND AMENDED COMPLAINT

Defendant Tampa Bay moves for dismissal of the Second Amended Complaint on the ground that it is “a nullity and should be dismissed with prejudice” since Plaintiff did not obtain leave of court prior to its filing. Tampa Bay also seeks attorney’s fees and costs pursuant to Section 57.105, Florida Statutes. (See generally Tampa Bay’s Motion to Dismiss). The arguments posited in Defendant’s Motion are without merit. The Court denies Tampa Bay’s Motion to Dismiss in part and grants it in part for the reasons asserted in Sections I, II and IV of this Order, pertaining to dismissal of the Amended Complaint and attorney fees, respectively.

Accordingly, the Second Amended Complaint governs and supersedes the amended and original complaints. By filing an amended complaint, a plaintiff abandons his original complaint and it no longer serves any purpose in the record. Dee v. Southern Brewing Co., 1 So. 2d 562, 562-63 (Fla. 1941). When an original pleading is not adopted by the terms of an amended complaint, the original complaint is superseded by the amendment. Bergovoy v. Atlantic Electric, Inc., 140 So. 2d 885, 888 (Fla. 2d DCA 1962), cert. denied, 146 So. 2d 750 (Fla. 1962) (citing Shannon v. McBride, 105 So. 2d 16 (Fla. 2d DCA 1958)). See also Rice v. Clement, 184 So. 2d 678, 680 (Fla. 4th DCA 1966) (when an original pleading is not adopted by the terms of an amended complaint, the original complaint is superseded by the amendment). With regard to Counts I, II, III and IV, Plaintiff’s Second Amended Complaint is identical to the Amended Complaint. The Second Amended Complaint is different from the Amended Complaint only insofar as it contains an additional count and allegations pertaining thereto. The Second Amended Complaint also contains Count V against Defendant Robert Gries for breach of a third party beneficiary contract. (See Second Amended Complaint at paras. 56-60). In adjudicating Defendants’ Motions to Dismiss Amended Complaint, this Court dismissed Count III of the Amended Complaint without prejudice and with leave to amend. However, since the Second Amended Complaint has superseded the Amended Complaint and since Count III and the allegations supporting it are identical in both complaints, leave to amend Count III of the Amended Complaint attaches to Count III of the Second Amended Complaint. Based on the arguments asserted in its motion, its memorandum of law, and during the hearing, the Court has construed Tampa Bay’s Motion to Dismiss to include the ground of failure to state a cause of action. Therefore, Count III of the Second Amended Complaint is dismissed without prejudice and with leave to amend.

Since this Court is compelled to consider all of the issues raised by the parties, the Court will also address what it believes to be implicit grounds for dismissal, not explicitly asserted in Tampa Bay’s Motion to Dismiss Second Amended Complaint but discussed at the hearing and contained in its Memorandum of Law in support of Defendant’s contention that permitting Plaintiff to file the Second Amended Complaint would be futile and prejudicial. With regard to Count V, the arguments made by Defendants regarding the applicability of Texas law and the contractual provisions relevant to this issue as well as the issue of third party beneficiaries cannot be considered by this Court since the contract was not attached to the Second Amended Complaint. (See Defendant’s Memorandum in Support of Defendants’ Motions to Dismiss Plaintiff’s Complaints and in Opposition to Plaintiff’s Cross Motion for Leave to Amend at 2-8). The Second Amended Complaint states that Plaintiff “was a third party beneficiary of the agreement.” (See Second Amended Complaint at para. 59). Accepting this allegation as true and confined within the four corners of the Second Amended Complaint, this Court cannot consider the effect of any contract provisions to the contrary upon a motion to dismiss. See supra Section I(A) of this Order (consideration of a motion to dismiss). Defendant’s explicit grounds for dismissal only relate to the issue of obtaining leave of court prior to filing an amendment. Upon considering this ground as well as the arguments made in Defendant’s Memorandum of Law and during the hearing, the Court denies Tampa Bay’s Motion to Dismiss Plaintiff’s Second Amended Complaint insofar as it relates to Counts I, II, IV and V. The motion is granted insofar as it relates to Count III for the same reasons discussed in Sections I and II of this Order. Count III of the Second Amended Complaint is dismissed without prejudice and with leave to amend. For all of the foregoing reasons, it is

ORDERED and ADJUDGED as follows:

1. Defendant Pigskin’s Motion to Dismiss Amended Complaint is GRANTED IN PART and DENIED IN PART. It is denied insofar as it relates to Counts I, II and IV. It is granted insofar as it relates to Count III. Count III is dismissed without prejudice and with leave to amend. Since the Second Amended Complaint supersedes the Amended Complaint and Count III is identical in both complaints, Plaintiff has (20) twenty days from the date of this Order to amend Count III of the Second Amended Complaint.

2. Defendant Tampa Bay’s Motion to Dismiss Counts I, II and III of the Amended Complaint is GRANTED IN PART and DENIED IN PART. It is denied insofar as it relates to Counts I and II. Count III of the Amended Complaint is dismissed without prejudice and with leave to amend. Since the Second Amended Complaint supersedes the Amended Complaint and Count III is identical in both complaints, Plaintiff has (20) twenty days from the date of this Order to amend Count III of the Second Amended Complaint.

3. Defendant Pigskin’s Motion to Strike Amended Complaint as Sham is DENIED.

4. Defendant Pigskin’s Motion for Attorney Fees is DENIED.

5. Defendant Pigskin’s Motion for Summary Judgment is DENIED as premature. The Court declines to rule on the merits of the motion.

6. Plaintiff’s Cross Motion to Enter Default Against Tampa Bay is DENIED.

7. Plaintiff’s Cross Motion for Leave to File a Second Amended Complaint is GRANTED.

8. Defendant Tampa Bay Storm’s Motion to Dismiss Second Amended Complaint is GRANTED IN PART and DENIED IN PART. It is denied insofar as it relates to Counts I, II, IV and V and granted insofar as it relates to Count III. Count III of the Second Amended Complaint is Dismissed without prejudice and with leave to amend. Plaintiff has (20) twenty days from the date of this Order to amend Count III of the Second Amended Complaint.

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¹Pigskin incorporated the following three motions into one document: Motion to Strike Plaintiff’s Amended Complaint as a Sham, Motion for Attorney Fees, and Motion for Summary Judgment. The document contains thirteen paragraphs in support of the combined motions, without specifying which of the three motions these grounds, arguments or statements pertain to. For analytical purposes, the Court has separated the motions as well as the statements or grounds asserted in support thereof in its discussion. Interestingly, Defendant filed the same motions with regard to the original complaint. However, the Honorable Daniel E. Gallagher denied all motions except Defendant’s Motion to Dismiss Complaint. (See August 6, 1997 Order).

²Even if the Court assumed that discovery was in fact completed, an examination of the pleadings and other relevant documents in the record as well as those submitted by the parties reveals the existence of material issues of fact which would preclude the entry of summary judgment. Upon a motion for summary judgment, the court’s duty “solely is to determine whether the pleadings, deposition, and affidavits conclusively show that the plaintiff cannot prove his case.” Crandall v. Southwest Florida Blood Bank, 581 So. 2d 593, 595 (Fla. 2d DCA 1991) (emphasis added); See also Edenfield v. B & I Contractors, Inc., 624 So. 2d 389, 391 (Fla. 2d DCA 1993) (holding that the burden is on the moving party to demonstrate conclusively that the non-moving party cannot prevail); Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991) (same). As the moving party, Defendant Pigskin has the burden of showing a conclusive absence of any genuine issue of material fact. This Court “must draw every possible inference in favor of [Plaintiff], the party against whom summary judgment is sought.” See Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) (citing Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977). A court should not grant summary judgment “unless the facts are so crystallized that nothing remains but questions of law.” Moore, 475 So. 2d at 668 (citing Shaffran v. Holness, 93 So. 2d 94 (Fla. 1957)).

³Tampa Bay also argues that the application of Texas law demonstrates that permitting amendment of the amended complaint is prejudicial and futile. (See generally Defendant’s Memorandum of Law). As discussed below in more detail, since it was not necessary for Plaintiff to obtain leave of court prior to filing its Second Amended Complaint, the issues of prejudice, futility and abuse of privilege are moot. The determination of whether or not to permit amendment rests without the sound discretion of the trial court. It would not be an abuse of discretion for a trial court to refuse to permit amendment on the ground that such amendment would result in prejudice to the opposing party, privilege to amend has been abused, or amendment would be futile. Carter, 666 So. 2d at 557 (citing Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Co-op Bank, 592 So. 2d 302, 305 (Fla. 1st DCA 1991), rev. dismissed, 598 So. 2d 76 (Fla. 1992)); Colandrea v. King, 661 So. 2d 1250, 1251 (Fla. 2d DCA 1995); See also Craig, 650 So. 2d at 180 (a trial court’s determination will not be overruled unless there was an abuse of discretion). Since Plaintiff had the right, as a matter of course, to file the Second Amended Complaint without leave of court, it is not necessary for this Court to consider whether Defendants will be prejudiced by the amendment, whether the amendment would be futile, or whether Plaintiff abused its privilege to amend. Such determinations are made when a court is considering whether leave to amend should be granted and when a plaintiff is not entitled to amend as a matter of course pursuant to Rule 1.190 (a).

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