Nationstar Mortg., LLC v. Sunderman

• Citation: 201 So.3d 139
• Decision Date: 04 November 2015
• Docket Number: No. 3D14–1346.,3D14–1346.
• Parties: NATIONSTAR MORTGAGE, LLC, Appellant, v. Robert SUNDERMAN, et al., Appellees.
• Court: Court of Appeal of Florida (US)

201 So.3d 139

NATIONSTAR MORTGAGE, LLC, Appellant,

v.Robert SUNDERMAN, et al., Appellees.

No. 3D14–1346.

District Court of Appeal of Florida, Third District.

Nov. 4, 2015.

Akerman LLP and Nancy M. Wallace, Tallahassee, William P. Heller, Fort Lauderdale, and Eric S. Matthew ; Ronald R. Wolfe & Associates, P.L., and William A. Malone, Tampa, for appellant.

John Marston, for appellees.

Before LAGOA, EMAS, and FERNANDEZ, JJ.

LAGOA

, J.

Nationstar Mortgage, LLC (“Nationstar”), appeals from the trial court's order dismissing with prejudice its foreclosure action against Robert and Heather Sunderman (“Sunderman”) and the subsequent order denying its motion for rehearing. In dismissing the action, the trial court found that the action was barred by the statute of limitations for a foreclosure action set forth in section 95.11(2)(c), Florida Statutes (2014)

. Because the trial court considered facts outside the four corners of the complaint in ruling on Sunderman's motion to dismiss, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

On January 7, 2014, Nationstar filed its complaint, alleging a default in the payment due for May 1, 2008, and all subsequent payments. Nationstar declared the full amount payable under the note and mortgage to be due and payable. The complaint does not reference two prior complaints for foreclosure brought against Sunderman: a first foreclosure,¹ filed on May 29, 2008, and dismissed by the same trial court judge without prejudice on December 4, 2008; and a second foreclosure, filed on October 30, 2009, and dismissed for failure to prosecute in 2011.

On March 17, 2014, Sunderman filed a motion to dismiss, which argued that Nationstar's complaint was time-barred by the five-year statute of limitations set forth in section 95.11(2)(c), Florida Statutes

, because it was filed more than five years after the filing of the first foreclosure. The motion relied upon the first and second foreclosures, and attached the complaint from the first foreclosure and the orders of dismissal entered in each of the prior cases.

On April 9, 2014, the trial court entered an order dismissing Nationstar's complaint with prejudice. The trial court found that Nationstar's action was brought over five years after the first foreclosure complaint was filed on the same note and mortgage, and that the action was therefore barred by the statute of limitations. In denying Nationstar's motion for rehearing, the trial court found that “it is clear on the record of this case that the action is barred by the statute of limitations.”

II. ANALYSIS

On appeal, a trial court's order granting a motion to dismiss is reviewed de novo. See Grove Isle Ass'n, Inc. v. Grove Isle Assoc., LLLP, 137 So.3d 1081, 1089 (Fla. 3d DCA 2014)

. Moreover, “[a] legal issue surrounding a statute of limitations question is an issue of law subject to de novo review.” Fox v. Madsen, 12 So.3d 1261, 1262 (Fla. 4th DCA 2009) (quoting Hamilton v. Tanner, 962 So.2d 997, 1000 (Fla. 2d DCA 2007) ). A motion to dismiss tests the legal sufficiency of complaint. Grove Isle Ass'n, Inc., 137 So.3d at 1089.

In determining the merits of a motion to dismiss, the trial court must limit itself to the four corners of the complaint. Id.; see also Minor v. Brunetti, 43 So.3d 178, 179 (Fla. 3d DCA 2010)

; Pacific Ins. Co. v. Botelho, 891 So.2d 587, 590 (Fla. 3d DCA 2004).

Nationstar argues that the trial court erred in granting Sunderman's motion to dismiss because: (1) it was improper for Sunderman to raise a statute of limitations defense in a motion to dismiss; and (2) the statute of limitations defense relied on facts not found within the four corners of the complaint. We will address each argument separately.

With respect to Nationstar's first argument, the law is clear that a party can raise a statute of limitations defense in a motion to dismiss if that defense appears on the face of the complaint. See Gen. Motors Acceptance Corp. v. Thornberry, 629 So.2d 292, 293 (Fla. 3d DCA 1993)

(“Where, as here, the statute of limitations defense appears on the face of the complaint, it is permissible to assert the statute of limitations defense by motion to dismiss.”); accord Forbes v. Lehner, 151 So.3d 31 (Fla. 3d DCA 2014)

; Pacific Ins. Co., 891 So.2d at 587 ; Alexander v. Suncoast Builders, Inc., 837 So.2d 1056 (Fla. 3d DCA 2002).² The complaint in this action, however, makes no reference to the prior foreclosure actions, and therefore it is impossible to tell from the face of the complaint whether the statute of limitations bars the present foreclosure action as a matter of law. For that reason, a motion to dismiss was not the proper procedural vehicle to raise the statute of limitations in this case.

We agree, however, with Nationstar's second argument that the statute of limitations defense relied on was not found within the four corners of the complaint. Although Sunderman attached the complaint from the first foreclosure and the prior two dismissals to his motion to dismiss, the...