## F I FTH 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________
Case No. 5 D 20 2 3

- 1060 LT Case No. H

- 27

- 2021

- CC

- 00 1454

_____________________________
H ERNANDO C OUNTY , F LORIDA ,
Appellant,

v.

H ERNANDO C OUNTY F AIR A SSOCIATION , I NC

. , Appellee.

_____________________________

On A ppeal from the C ounty Court for Hernando County

. Barbara

- Jo Bell , Judge

.

Jon A. Jouben and Kyle J. Benda

, Brooksville, for Appellant.

Joseph M. Mason, Jr.

, of McGee & Mason, P.A., Brooksville, for Appellee.

May 3, 2024

P ER C URIAM

. Hernando County, Florida ( the “ County”) appeals the trial court’s final order dismissing with prejudice its single

- count breach of contract first amended complaint that it filed against the Hernando County Fair Association, Inc. (“HCFA”)

. The trial court concluded that the five

- year statute of limitations for bringing an2 action on a written contract had expired prior to suit being filed

. 1 We reverse. I.

According to its first amended complaint, in 1964

, the C ounty began leasing to HCFA certain real property that it described as the “Fairground s Parcel

, ” upon which HCFA would hold the annual county fair. T he parties later entered into the written contract at issue

, 2 where the County agreed to convey the F airgrounds P arcel to HCFA and

, in consideration, HCFA agreed
to redevelop th is property pursuant to a Master Plan that had to be approved by the County. The contract did not provide a date by which the Fairgrounds Property was to be redeveloped, although it did contain a specific date for the submission of the Master Plan. The County alleged in its amended complaint that it conveyed th e subject property to HCFA

, but HCFA ha d breached the contract by its failure to substantially redevelop the property.

HCFA moved to dismiss the first amended complaint

, argu ing that its alleged breach in failing to submit the Master Plan to the County by the date described in the contract began the running of the five

- year statute of limitations for the County to have brought the instant breach of contract action

. HCFA asserted that because this limitations period had, in fact, expir ed before the County filed its original complaint , the action was time

- barred. The trial court agreed and, after also concluding that further leave to amend the complaint would be futile, dismissed the action with prejudice. II

.

A trial court’s final order dismissing a complaint with prejudice , such as was done here, is reviewed de novo. Real Est. Sols. Home Sellers, LLC v. V i era E. Golf Course Dist. Ass’n

, 288 So.

1 See § 95.11(2)(b), Fla. Stat. (2007)

.

2 The parties ’ contract consists of two separate documents titled “ P erformance Agreement” and “Memorandum of Understanding.”3 3d 1 228, 1230 n.2 (Fla. 5 th DCA 2020) (citing Chimera Servs.

, Inc

. v. Prevatt , 267 So. 3d 556, 557 (Fla. 5 th DCA 2019)).

III.

T he purpose of a motion to dismiss is to test the legal sufficiency of a complaint. Grove Isle Ass’n v. Grove Isle Assocs., LL L P , 137 S o . 3d 1081, 1089 (Fla. 3d DCA 2014) (citing Fla. Bar v. Greene , 926 So. 2d 1195, 1199 (Fla. 2006)). T o that end, w hen evaluating whether a complaint is legal ly sufficient

, a trial court
must (1) limit itself to examining the four corners of the complaint

, including any attached or incorporated exhibits, (2) assume the factual allegations in the complaint to be true, and (3) construe all reasonable inferences from the complaint in favor of the non

moving party. Id. (citing G reene , 926 So. 2d at 1199 ; Minor v. Brunetti , 43 So. 3d 178, 179 (Fla. 3d DCA 2010) ).

Also p ertinent to our analysis is that t he statute of limitations is an aff irmative defense that should generally be raised by answer rather than a motion to dismiss the complaint. Rigby v. Liles , 505 So. 2d 598, 601 (Fla. 1st DCA 1987). Nevertheless

, in extra ordinary circumstances, a motion to dismiss is appropriate if the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the statu t e of limitations bars the action as a matter of law. Id. This principle comes with the caveat that “[b]ecause affirmative defenses may be avoided by facts pled in a reply, the allegations of the complaint must also conclusively negate the plaintiff’s ability to allege facts in avoidance of the defense by way of reply or dismissal is inappropriate.” Gr o ve Isle

, 137 So. 3d at 1089 (citing Rigby , 505 So. 2d at 601; Saltponds Condo. Ass’n v. McCoy , 972 So. 2d 230, 231 (Fla. 3d DCA 2007)). Therefore, the issue before us is whether, as a matter of law, the statute of limitations defense is conclusively established on the face of the County’s f irst a mended

c omp laint and that the County’s ability to allege facts in avoidance of this defense is also conclusively negated

.

I V

.

Our review shows that t he County alleged in its first amended complaint various breaches of the contract regarding4 HCFA ’s fail ure to complete the redevelopment of the Fairgrounds Parcel that related not only to HCFA ’s single act of failing to submit the Master Plan by the designated date , but also in failing to comply with numerous other intertwined

, ongoing

, and continuing contractual dut ies and obligations that postdated the date that the Master Plan was due. As such

, under th e “ continuing breach ” doctrine, see Allapat t a h Servs

. , Inc. v. Exxon Corp. , 188 F.R.D. 667, 680 (S.D. Fla. 1999) (“W here the nature of the contract is continuous, statutes of limitations do not typically begin to run until termination of the entire contract.” )

, a ff’d , 333 F.3d 1248 (11 th Cir. 2003), a ff ’ d sub. n om

. , Exxon Mobile Corp . v. Allapattah Servs

. , Inc. , 545 U.S. 546 (2005)

, we conclude that the trial court erred in dismissing the action with prejudice because the complaint does not con clusively show that the sta t ute of limitations bars this action

. 3

Accordingly, t he final order of dismissal with prejudice is reversed ; and we remand for further proceedings consistent with this opinion.

R EVERSED and R EMANDED

.

W ALLIS , L AMBERT , and H ARRIS , JJ., concur

.

_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

_____________________________

3 The County also argues that the trial court abused its discretion in not also granting it le ave to file a second amended complaint to allege additional facts in avo idance of the statute of limitations defense. B ased upon our disposition, we find it unnecessary to address the merits of this argument.