Brewer v. Clerk of Circuit Court, Gadsden County, 98-38

• Decision Date: 04 November 1998
• Docket Number: No. 98-38,98-38
• Citation: 720 So.2d 602
• Parties: 23 Fla. L. Weekly D2473 Bertie M. BREWER, Appellant, v. CLERK OF the CIRCUIT COURT, GADSDEN COUNTY, Appellee.
• Court: Florida District Court of Appeals

Page 602

720 So.2d 602

23 Fla. L. Weekly D2473

Bertie M. BREWER, Appellant, v. CLERK OF the CIRCUIT COURT, GADSDEN COUNTY, Appellee.

No. 98-38.

District Court of Appeal of Florida,

First District.

Nov. 4, 1998.

Marie A. Mattox and Sandra S. Hood of Mattox & Hood, P.A., Tallahassee, for Appellant.

Anthony L. Bajoczky and Scott A. Snavely of Bajoczky & Fournier, Tallahassee, for Appellee.

KAHN, Judge.

Appellant, Bertie M. Brewer, challenges a trial court order dismissing her complaint, which alleged unlawful employment discrimination and retaliation in violation of Chapter 760, Florida Statutes. Appellee filed a motion to dismiss asserting that appellant had failed to comply with certain statutory prerequisites prior to filing her complaint had, therefore, failed to state a cause of action. We affirm in part, reverse in part, and remand.

This court has explained the time-honored standard for evaluating a motion to dismiss for failure to state a cause of action:

When ruling on a motion to dismiss for failure to state a cause of action, the trial court must accept the allegations of the complaint as true. Likewise, the appellate court must accept the facts alleged in a complaint as true when reviewing an order that determines the sufficiency of the complaint. Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, a ruling on a motion to dismiss for failure to state a cause of action is reviewable on appeal by the de novo standard of review.

Sarkis v. Pafford Oil Co., Inc., 697 So.2d 524, 526 (Fla. 1st DCA 1997) (citations omitted); see, e.g., McKinney-Green, Inc. v. Davis, 606 So.2d 393, 394 (Fla. 1st DCA 1992) ("In reviewing the trial court's order denying appellant's motion to dismiss, we must determine whether the allegations, from the four corners of the complaint, sufficiently state one or more claims for relief. We are obliged to accept all well-pled allegations of the complaint as true." (citations omitted)); Snow v. Byron, 580 So.2d 238, 240 (Fla. 1st DCA 1991) ("When considering a motion to dismiss for failure to state a cause of action, a trial court must assume all of the allegations in the complaint are true, and must draw all reasonable inferences in favor of the pleader."); cf., e.g., Affordable Homes, Inc. v. Devil's Run, Ltd., 408 So.2d 679, 680 (Fla. 1st DCA 1982) ("Although the appellant properly pled that it had performed all conditions precedent as required by the contracts, nevertheless, if 'there is an inconsistency between the general allegations of material fact in (a) complaint and the specific facts revealed by (an) exhibit, and they have the effect of neutralizing each other, the pleading is rendered objectionable.' "). See also Fla. R. Civ. P. 1.120(c) ("Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred....").

In this case, appellant's complaint contains the following allegations:

Plaintiff has satisfied all conditions precedent to bringing this [sic] actions in that she has filed an Administrative Charge of Discrimination with the deferral agency, the Florida Commission on Human Relations. She waited the requisite time required under Chapter 760, Florida Statutes, prior to bringing this action and Plaintiff is timely in bringing this action.

See § 760.11, Fla. Stat. (1995) (providing that, prior to bringing action in circuit court, complainant must receive "reasonable cause" determination from Commission or wait 180 days after filing complaint with Commission). Appellee's motion to dismiss affirmatively averred that appellant failed to state a cause of action upon which relief could be granted because she had not received a determination of "reasonable cause" from the Florida Commission on Human Relations and thus did not comply with the statutory prerequisite. The trial court granted the motion:

3. The plaintiff must have received a determination of reasonable cause before proceeding in a civil action. Reasonable cause is established by either a determination of reasonable cause by the commission after an investigation, or by "default" if the commission fails to act on a complaint within 180 days.

4. The plaintiff's complaint was filed with the commission on December 6, 1995 (Exhibit A). On February 29, 1996, the commission dismissed the complaint (Exhibit B) upon the qualified request of the plaintiff's counsel (Exhibit C). The commission dismissed the complaint within 180 days of receiving the complaint without determining that reasonable cause existed.

5. The plaintiff failed to obtain a determination of reasonable cause from the commission. The commission neither "defaulted" by failing to act on the complaint within 180 days, nor determined that reasonable cause existed.

6. Because the instant civil action was filed without the plaintiff having obtained a determination of reasonable cause from the commission, the action is dismissed.

Ordinarily, such dismissal would be erroneous because, from the authority set forth above, the court must accept the allegations in the complaint as true and appellant alleged that she had satisfied the conditions precedent and waited the required period. In this case, however, it is abundantly clear that the parties agreed the circuit court should decide whether appellant had actually complied with the statutory prerequisite. In effect, the parties treated the hearing on the motion to dismiss as a summary judgment hearing. Cf. Holland v. Anheuser Busch, Inc., 643 So.2d 621, 623 (Fla. 2d DCA 1994) (explaining that nothing in record established party had consented or stipulated to trial court treating motion to dismiss as motion for summary judgment). Moreover, the parties clearly waived any procedural defects with regard to notice of the summary judgment hearing. See, e.g., Wong v. Crown Equip. Corp., 676 So.2d 981, 981-82 (Fla. 3d DCA 1996); Ultimate Corp. v. CG Data Corp., 575 So.2d 1338, 1339 (Fla. 3d DCA 1991); Bartlett Constr., Inc. v. Coastal Plains, Inc., 353 So.2d 892, 893 (Fla. 3d DCA 1977).

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