FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2023-1060

LT Case No. H-27-2021-CC-001454

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HERNANDO COUNTY, FLORIDA,

Appellant,

v.

HERNANDO COUNTY FAIR 

ASSOCIATION, INC.,

Appellee.

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On Appeal from the County 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

PER CURIAM.

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 an
2

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 County 

began leasing to HCFA certain real property that it described as 

the “Fairgrounds Parcel,” upon which HCFA would hold the 

annual county fair. The parties later entered into the written 

contract at issue,2 where the County agreed to convey the 

Fairgrounds Parcel to HCFA and, in consideration, HCFA agreed 

to redevelop this 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 the 

subject property to HCFA, but HCFA had breached the contract by 

its failure to substantially redevelop the property. 

HCFA moved to dismiss the first amended complaint,

arguing 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, expired 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. Viera 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 “Performance Agreement” and “Memorandum of 

Understanding.”
3

3d 1228, 1230 n.2 (Fla. 5th DCA 2020) (citing Chimera Servs., Inc.

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

III.

The purpose of a motion to dismiss is to test the legal 

sufficiency of a complaint. Grove Isle Ass’n v. Grove Isle Assocs., 

LLLP, 137 So. 3d 1081, 1089 (Fla. 3d DCA 2014) (citing Fla. Bar 

v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006)). To that end, when 

evaluating whether a complaint is legally 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 nonmoving party. Id. (citing Greene, 926 So. 2d at 1199; Minor v. 

Brunetti, 43 So. 3d 178, 179 (Fla. 3d DCA 2010)).

Also pertinent to our analysis is that the statute of 

limitations is an affirmative 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 extraordinary 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 statute 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.” Grove 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 first amended 

complaint and that the County’s ability to allege facts in avoidance 

of this defense is also conclusively negated.

IV.

Our review shows that the County alleged in its first 

amended complaint various breaches of the contract regarding
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HCFA’s failure 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 duties and obligations that postdated the 

date that the Master Plan was due. As such, under the “continuing 

breach” doctrine, see Allapattah Servs., Inc. v. Exxon Corp., 188 

F.R.D. 667, 680 (S.D. Fla. 1999) (“Where the nature of the contract 

is continuous, statutes of limitations do not typically begin to run 

until termination of the entire contract.”), aff’d, 333 F.3d 1248 

(11th Cir. 2003), aff’d sub. nom., 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 conclusively show that the statute of 

limitations bars this action.3 

Accordingly, the final order of dismissal with prejudice is 

reversed; and we remand for further proceedings consistent with 

this opinion. 

REVERSED and REMANDED.

WALLIS, LAMBERT, and HARRIS, 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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3 The County also argues that the trial court abused its 

discretion in not also granting it leave to file a second amended 

complaint to allege additional facts in avoidance of the statute of 

limitations defense. Based upon our disposition, we find it 

unnecessary to address the merits of this argument.