FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2023-2067

LT Case No. 2021-CA-000325

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WILLIAM J. POIRIER, JR., 

Personal Representative of the 

Estate of Maria M. Mosher, 

Appellant, 

v.

THE VILLAGES SENIOR HOUSING 

I OPCO, LLC, AMERICAN TRUST 

SENIOR CARE, LLC, DISCOVERY 

SENIOR LIVING HOLDINGS, LLC,

and CHRISTINA WISE FRATES (as 

to SUMTER PLACE IN THE 

VILLAGES), 

Appellees. 

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On appeal from the Circuit Court for Sumter County. 

Jason J. Nimeth, Judge. 

Lisa M. Tanaka, of Wilkes & Associates, P.A., Tampa, for 

Appellant. 

Jedidiah Vander Klok, of Kennedys CMK LLP, Miami, for 

Appellees. 

October 8, 2024
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BOATWRIGHT, J.

Appellant, William J. Poirier, is the personal representative 

of the estate of Maria M. Mosher (“Estate”). He appeals the lower 

court’s order dismissing (with prejudice) his fourth amended 

complaint, in which he alleged causes of action arising from the 

purported neglect of Maria M. Mosher (“Mosher”) at an assisted 

living facility, where she died following an altercation with a fellow 

resident. 

I. 

In May of 2018, Mosher was admitted into the Appellees’ 

assisted living facility, Sumter Place in the Villages, located in 

Sumter County, Florida. During her stay, Mosher was placed in 

the facility’s memory care unit. On April 2, 2019, while still in the 

memory care unit, another resident, who had a history of 

wandering around the facility, entered into Mosher’s room. An 

altercation ensued between this resident and Mosher which caused 

Mosher to fall to the floor and hit her head. As a result of the 

injury, Mosher died four days later from an intercranial 

hemorrhage. 

The Estate filed a lawsuit against the assisted living facility 

and the individuals and entities responsible for its operation and 

management. The Estate then amended the complaint and filed 

claims of non-lethal negligence, lethal negligence, wrongful death, 

breach of fiduciary duty, and aiding and abetting breach of 

fiduciary duty. Upon a motion to dismiss by the Appellees, the trial 

court dismissed the Estate’s complaint for failure to state ultimate 

facts entitling the Estate to relief pursuant to Florida Rule of Civil 

Procedure 1.110 (b) and granted the Estate leave to amend its 

complaint. Subsequently, the Estate filed second and third 

amended complaints asserting the same causes of action. The 

Appellees again filed motions to dismiss those complaints, arguing 

that the complaints lacked specificity and stated conclusions 

rather than ultimate facts to support the claims therein. The trial 

court agreed and dismissed both the second and third amended 

complaints based on the same reasoning, i.e., the Estate failed to 

state ultimate facts that would entitle the Estate to relief. 
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However, the court continued to grant the Estate leave to amend 

the complaint.

Pursuant to the court’s leave to amend, the Estate filed the

fourth amended complaint that is the subject of this appeal

(“Complaint”), which included 15 separate counts against the 

Appellees. The Estate alleged causes of action against Appellees 

for lethal and non-lethal negligence (Counts I–VIII), wrongful 

death (Counts IX–XII), breach of fiduciary duty (Count XIII), and 

aiding and abetting breach of fiduciary duty (Count XIV–XV). The 

Appellees once again filed a motion to dismiss. After a hearing on 

the motion to dismiss, the trial court dismissed the fourth 

amended complaint based upon the Estate’s “failure to plead 

ultimate facts necessary to establish the underlying causes of 

action and the damages relating thereto.” At this point, the trial 

court dismissed the complaint with prejudice. This appeal follows.

The Estate argues on appeal that it alleged sufficient ultimate 

facts to support its claims. Alternatively, the Estate argues that 

the court erred by failing to grant it another opportunity to amend 

the complaint before dismissing it with prejudice. We agree with 

the Estate that the trial court erred in dismissing its complaint. 

Thus, whether the trial court erred by failing to grant the Estate 

another opportunity to amend its complaint is moot, and we need 

not reach that issue.

II.

We review an order granting a motion to dismiss with 

prejudice de novo. Bilbrey v. Myers, 91 So. 3d 887, 890 (Fla. 5th 

DCA 2012) (citation omitted); see also U.S. Bank Nat’l Ass’n o/b/o 

Ajax Mortg. Loan Tr. 2018-B Mortg.-Backed Notes v. Vadney, 387 

So. 3d 441 (Fla. 5th DCA 2024) (“[A]n order granting a motion to 

dismiss presents a pure question of law and is subject to de novo 

review.” (quoting Abitbol v. Benarroch, 273 So. 3d 147, 153 (Fla. 3d 

DCA 2019)).

In reviewing a motion to dismiss, “the ‘allegations of the 

complaint are assumed to be true and all reasonable inferences 

arising therefrom are allowed in favor of the plaintiff.’” Bilbrey, 91 

So. 3d at 890 (quoting Ralph v. City of Daytona Beach, 471 So. 2d 

1, 2 (Fla. 1983)). Additionally, the “purpose of a motion to dismiss” 

is not to evaluate factual disputes, but is rather solely “to test the 
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legal sufficiency of a complaint.” Id. (citation omitted). Because the 

legal sufficiency of the complaint is determined by the four corners 

of the complaint, “the trial court may not rely on facts adduced in 

depositions, affidavits, or other proofs” when addressing a motion 

to dismiss. Id. (quoting Chodorow v. Porto Vita, Ltd., 954 So. 2d 

1240, 1242 (Fla. 3d DCA 2007)).

Florida is a fact-pleading jurisdiction. Horowitz v. Laske, 855 

So. 2d 1069, 1072 (Fla. 5th DCA 2003). This Court has explained 

that under rule 1.110(b)(2), a plaintiff must allege “a short and 

plain statement of the ultimate facts showing that the pleader is 

entitled to relief.” Beckler v. Hoffman, 550 So. 2d 68, 70 (Fla. 5th 

DCA 1989). We have elaborated that “[a]llegations can be made on 

three levels: (1) a description of the evidence itself, (2) a statement 

of ultimate facts, or (3) a conclusion of fact or law”; and have 

explained that “[u]nder [rule 1.110(b)(2)], ultimate facts should be 

alleged.” Id. This means “[i]t is not necessary to allege evidentiary 

facts (i.e., the exact events described by reference to exact dates, 

places, persons involved).” Id. However, it is insufficient to allege 

mere conclusions. Id.; see also Stein v. BBX Cap. Corp. & BBX 

Merger Subsidiary LLC, 241 So. 3d 874 (Fla. 4th DCA 2018) (“To 

survive a motion to dismiss, a complaint must allege ‘sufficient 

ultimate facts’ showing entitlement to relief.”). Thus “a conclusion 

of law is objectionable in pleading, but the statement of an 

ultimate fact, which necessarily is a conclusion drawn from 

intermediate and evidentiary facts, is not.” Williams v. Peninsular 

Grocery Co., 75 So. 517, 519 (Fla. 1917).

In this regard, “[t]he purpose of a complaint is to advise the 

defendant of the nature of the cause of action asserted by the 

plaintiff.” Kest v. Nathanson, 216 So. 2d 233, 235 (Fla. 4th DCA 

1969). A complaint is merely a tentative outline of the position that 

the plaintiff takes before the case is fully developed. Vann v. 

Hobbs, 197 So. 2d 43, 45 (Fla. 2d DCA 1967). “[W]here a complaint 

contains sufficient allegations to acquaint the defendant with the 

plaintiff’s charge of wrongdoing so that the defendant can 

intelligently answer the same, it is error to dismiss the action on 

the ground that more specific allegations are required.” Meadows 

Cmty. Ass’n, Inc. v. Russell-Tutty, 928 So. 2d 1276, 1278 (Fla. 2d

DCA 2006) (quoting Fontainebleau Hotel Corp. v. Walters, 246 So. 

2d 563, 565). This simplified pleading procedure is the primary 

intent of rule 1.110, which eliminated pleading technicalities. Id.
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It is difficult to ascertain from the trial court’s ruling why it 

found that the Estate had failed to allege sufficient causes of action 

against Appellees. The court did not orally rule following the 

hearing on the motion to dismiss, and it merely stated, without 

further elaboration, in the written order that the Estate had failed 

to allege ultimate facts to support the underlying causes of action. 

In its ruling, it intimated that the pleading was insufficient as it 

contained merely conclusions, rather than ultimate facts 

supporting each cause of action. 

We disagree with the trial court, as the Estate’s complaint 

clearly alleged ultimate facts to support the underlying causes of 

action. It was error for the trial court to require further specificity 

at this stage in the proceedings, as the complaint contained 

sufficient allegations to apprise the Appellees of the nature of the 

causes of action against them. Therefore, we reverse the trial

court’s order dismissing the Estate’s complaint. 

III. 

Accordingly, we reverse the order on appeal and remand for 

further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings. 

SOUD and MACIVER, JJ., concur. 

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331. 

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