DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ANGEL E. GASTÓN,

Appellant,

v.

NNN INVESTMENT ADVISORS, LORRIE GEOFFREY, and

RICHARD GRONDIN,

Appellees.

No. 4D22-2906

[May 3, 2023]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Scott Kerner, Judge; L.T. Case No. 50-2022-CA-007374-

XXXX-MB.

Angel E. Gastón, Tavares, pro se.

No appearance for appellees.

CONNER, J.

Angel E. Gastón (“Gastón”) appeals the circuit court’s dismissal with 

prejudice of his indigent prisoner complaint pursuant to mandatory 

prescreening under section 57.085(6), Florida Statutes (2022). The circuit 

court found his claims were either time barred or reasonably appeared to 

be intended to harass Defendants/Appellees NNN Investment Advisors 

(“NNN”), Lorrie Geoffrey, and Richard Grondin (collectively, “Defendants”). 

Of the four claims Gastón raised in his complaint, we affirm the circuit 

court’s dismissal of three of them. Gastón concedes on appeal that the 

circuit court properly dismissed his claim for unjust enrichment, and we 

therefore affirm as to that claim without further comment. We also affirm 

as to Gastón’s claims for civil conspiracy to defraud and intentional 

infliction of emotional distress, as he failed to preserve his arguments on 

appeal by raising them before the circuit court. However, we reverse the

circuit court’s dismissal with prejudice of his breach of contract claim, as 

the circuit court erred in finding that the complaint was reasonably 

intended to harass Defendants under section 57.085(6)(d).
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Background

Gastón filed a civil complaint against Defendants for breach of contract, 

civil conspiracy to defraud, unjust enrichment, and intentional infliction 

of emotional distress. The complaint alleges as follows.

Gastón worked for NNN as a real estate associate and independent 

contractor pursuant to an employment and commission contract. The 

contract provided for a 50/50 split on commissions earned by NNN where 

Gastón was the procuring cause of the sale.

In 2017, Gastón negotiated and was the procuring cause of the sale of 

a building for a substantial sum. Due to “an unforeseen hospitalization,”

Gastón was unable to attend the closing. He alleged he was unable to 

notify Defendants of his hospitalization until after being discharged.

When Gastón reached out to Defendants after his hospitalization, he 

learned that due to his absence in the days leading up to the closing, as 

well as at the closing itself, Defendants had decided to reduce his share of 

the commission. Additionally, instead of a lump sum payment, 

Defendants stated his reduced commission would be paid in monthly 

installments over the course of a year.

Upset by this decision, Gastón began “repeatedly demanding payment 

of [his] commission,” which led to criminal charges against him. 

Eventually, Defendants sent Gastón a letter of termination, stating that 

they would not be paying him any portion of the commission.

Although not alleged in the complaint, the appellate record reveals that 

Gastón’s demands for payment and aggressive behavior towards 

Defendants resulted in Gastón being charged and convicted of aggravated 

stalking and threats or extortion. Gastón was sentenced to prison for the 

charges. Gastón filed his civil complaint while in prison.

The complaint was accompanied by an affidavit of indigency. The clerk 

of court determined that Gastón was indeed indigent and a prisoner, which 

prompted the circuit court to sua sponte prescreen his complaint 

pursuant to section 57.085(6).

Pursuant to this prescreening, the circuit court found that three of 

Gastón’s four counts (civil conspiracy to defraud, unjust enrichment, and 

intentional infliction of emotional distress) failed to state a claim because 

those counts were time-barred by the four-year statute of limitations. The 

circuit court also found that his count for unjust enrichment was barred 
3

by his allegations of an express contract, and his count for intentional 

infliction of emotional distress was further barred by the absence of a 

physical injury. Accordingly, the circuit court dismissed those counts with 

prejudice.

As to the breach of contract count, the circuit court found that a fiveyear statute of limitations applied, but it could not determine from the face 

of the complaint whether the alleged breach occurred more than five years 

prior to the filing of the complaint. The circuit court then analyzed whether 

the breach of contract count was subject to dismissal pursuant to section 

57.085(6)(d), as “frivolous, malicious, or reasonably appear[ing] to be 

intended to harass one or more named defendants.” As part of this 

analysis, the circuit court reviewed the docket and certain docket entries 

in Gastón’s criminal case. The circuit court did not take judicial notice of 

any of the criminal records.

The circuit court noted that Gastón pled guilty to charges of aggravated 

stalking and threats or extortion. Citing the probable cause affidavit, the 

circuit court further observed that Gastón’s charges stemmed from his 

conduct toward Defendants after they declined to pay him the full 

commission. The probable cause affidavit detailed Gastón’s excessive and 

disturbing communications with Defendants.

Based on the circuit court’s review of records in the criminal case, 

combined with “the significant passage of time since the events of 2017 

and the filing of the complaint in August 2022 and that he appears 

destined for prison due to twice violating his probation (albeit for conduct 

unrelated to [D]efendants),” the circuit court concluded that the complaint 

“reasonably appears to be intended to harass.” Accordingly, the circuit 

court dismissed all claims with prejudice.

Appellate Analysis

“The standard of review for the dismissal of a complaint is . . . de novo.”

Green v. Cottrell, 204 So. 3d 22, 26 (Fla. 2016); see also James v. Goryl, 62 

So. 3d 1225, 1225 (Fla. 5th DCA 2011).

Section 57.085 was enacted to address the prevalence of frivolous civil 

suits by indigent inmates. Fla. Parole Comm’n v. Spaziano, 48 So. 3d 714, 

718 (Fla. 2010) (citing Ch. 96-106, preamble, at 92, Laws of Fla.). “The 

premise of [section 57.085] was that indigent inmates had abused the cost 

waiver [statute] by filing numerous frivolous lawsuits.” Reed v. Mims, 711 

So. 2d 169, 170 (Fla. 3d DCA 1998). To effectuate this intent, section 

57.085 requires circuit courts to screen indigent inmate complaints to 
4

determine whether the action is legally sufficient to state a cause of action. 

See § 57.085(6), Fla. Stat. (2022). As part of this review, the circuit court 

“shall” dismiss any claims that (among other things) are found to be 

frivolous, malicious, or intended to harass. See § 57.085(6)(d), Fla. Stat.

(2022). “Actions not found to be frivolous or malicious or otherwise subject 

to dismissal under the act will proceed, but with the requirement that the 

prisoner prepay filing fees and related costs or be subject to a lien on his 

or her inmate trust account.” Spaziano, 48 So. 3d at 718.

“Although section 57.085 must be interpreted so as to accomplish its 

intended purpose, it must also be applied flexibly so as to allow access to 

courts for those with legitimate claims.” Reed, 711 So. 2d at 172. “Thus, 

where it appears that a pleading’s deficiencies can be cured by an 

amendment, a reasonable opportunity for amendment should be allowed.” 

Id. (reversing and remanding for plaintiff to be provided with leave to file 

an amended complaint); see also James, 62 So. 3d at 1226 (“Because 

[plaintiff] may be able to correct these defects, we reverse the dismissal of 

his complaint with prejudice and remand to allow him to file an amended 

complaint.”). Such is the case even where it seems unlikely that the 

plaintiff will be able to prevail. Chartrand v. Parsons, 164 So. 3d 117, 117

(Fla. 5th DCA 2015) (“Under the best of circumstances, [plaintiff] would 

have difficulty meeting his burden of proof . . . . Due to his incarceration 

. . . these are not the best of circumstances for [him]. . . . While facing an 

uphill battle, [he] should at least be given an opportunity to amend his 

complaint . . . .”).

In reviewing a complaint under section 57.085(6) to determine if it 

should be dismissed, the motion to dismiss standard applies. See Toney 

v. C. Courtney, 191 So. 3d 505, 507 (Fla. 1st DCA 2016) (applying standard 

to a dismissal with prejudice under section 57.085(6)); James, 62 So. 3d 

at 1226 (same). Under this standard, the circuit “court must accept the 

facts alleged therein as true and all inferences that reasonably can be 

drawn from those facts must be drawn in favor of the pleader.” 

Schneiderman v. Baer, 334 So. 3d 326, 330 (Fla. 4th DCA 2022) (quoting 

MEBA Med. & Benefits Plan v. Lago, 867 So. 2d 1184, 1186 (Fla. 4th DCA 

2004)). Additionally, “[a] court may not go beyond the four corners of the 

complaint and exhibits attached thereto.” Id. (alteration in original) 

(quoting Kohl v. Blue Cross & Blue Shield of Fla., Inc., 988 So. 2d 654, 658 

(Fla. 4th DCA 2008)). And, “while affirmative defenses such as 

untimeliness are generally raised in an answer, dismissal is proper where 

the facts that support the defense affirmatively appear on the face of the 

complaint and establish conclusively that the action is barred as a matter 

of law.” Id.
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As to the breach of contract claim, the circuit court in the instant case

erred by considering information outside the four corners of the complaint. 

Gastón’s criminal materials were not attached to his complaint, nor were 

those materials incorporated by reference. See, e.g., One Call Prop. Servs. 

Inc. v. Sec. First Ins. Co., 165 So. 3d 749, 752 (Fla. 4th DCA 2015) (“[W]here 

the terms of a legal document are impliedly incorporated by reference into 

the complaint, the trial court may consider the contents of the document 

in ruling on a motion to dismiss.”). “The [incorporation by reference] 

doctrine cannot be stretched to allow for the mention of a prior proceeding 

in a complaint to open the door to the trial court considering the entirety 

of the prior proceeding in ruling on a motion to dismiss . . . .”

Schneiderman, 334 So. 3d at 331.

Furthermore, the circuit court did not take judicial notice of Gastón’s 

criminal records. Even if it had, however, judicial notice would have been 

improper without a stipulation. “[U]nless the parties have stipulated to 

judicial notice, a court cannot rely on judicial notice to sidestep the four 

corners rule.” Id. at 330; see also Bayview Loan Servicing, LLC v. Brown, 

329 So. 3d 210, 212 (Fla. 2d DCA 2021) (“For a trial court to take judicial 

notice, it must necessarily consider information outside of the four corners 

of the complaint.”).

Regardless, even if the circuit court were not restricted to the four 

corners of the complaint, Gastón’s criminal records do not (on the current 

record) reasonably support a finding that the complaint is intended to 

harass Defendants. The breach of contract claim was facially timely under 

the statute of limitations. The record does not indicate that, during his 

criminal proceedings, Gastón relinquished the contract rights he now 

seeks to assert. Gastón simply appears to be asserting his contract rights

through a more appropriate avenue. Accordingly, for this additional 

reason, we determine the trial court erred in dismissing the breach of 

contract claim with prejudice. See, e.g., Omasta v. Bedingfield, 689 So. 2d 

409, 410 (Fla. 5th DCA 1997) (“[U]nless it appears that the privilege to 

amend has been abused or that a complaint is clearly untenable, it is an 

abuse of discretion to dismiss with prejudice.”).

The circuit court nonetheless properly dismissed Gastón’s counts for 

civil conspiracy and intentional infliction of emotional distress. The facts 

alleged in the complaint do not support a theory of fraud. Instead, the 

facts allege a breach of contract. “[A] willful breach of contract alone, 

without more, is insufficient in law to constitute fraud.” In re Donner’s 

Est., 364 So. 2d 742, 749 (Fla. 3d DCA 1978). Although Gastón alleged a 

conspiracy to breach his commission contract, breaching a contract is not 

a tort. Without a tort, there can be no conspiracy to commit a tort. 
6

Likewise, a breach of contract cannot be converted into the tort of 

intentional infliction of emotional distress.

While Gastón challenges on appeal the circuit court’s application of the 

statute of limitations to these counts, as well as a constitutional challenge 

to the intentional infliction of emotional distress dismissal, the circuit 

court never considered these arguments because Gastón never moved for 

rehearing once the trial court dismissed the case. We therefore decline to 

address these arguments as unpreserved. See Sunset Harbour Condo. 

Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (“As a general rule, it is 

not appropriate for a party to raise an issue for the first time on appeal.”); 

Shelswell v. Bourdeau, 239 So. 3d 707, 708 (Fla. 4th DCA 2018) (holding 

that the rule of preservation applies to the improper dismissal of a 

complaint with prejudice).

Conclusion

We affirm the circuit court’s dismissal with prejudice of Gastón’s counts

for unjust enrichment, civil conspiracy, and intentional infliction of 

emotional distress. As for his breach of contract count, we reverse and 

remand for further proceedings.

Affirmed in part, reversed in part, and remanded for further proceedings.

GROSS and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.