Nelson v. Hillsborough County, Florida, 189 So. 3d 1037

Plaintiff Debra Nelson sued Hillsborough County for personal injuries from a courthouse slip-and-fall occurring November 24, 2009; complaint filed November 18, 2013.
County was served January 28, 2014 and moved to dismiss with prejudice, arguing Nelson failed to sufficiently allege compliance with the notice requirement of section 768.28(6)(a), Fla. Stat.
The complaint alleged Nelson notified the County on multiple dates and stated "the Department of Insurance has been notified," but did not attach a copy of any notice to the Department of Financial Services (formerly Department of Insurance) or specify the date of that notice.
At the motion-to-dismiss hearing, the trial court questioned plaintiff's counsel about proof of timely notice; counsel said a timely letter had been sent but she could not produce a copy.
The trial court dismissed the complaint with prejudice and entered final judgment for the County, reasoning the notice allegation was insufficient and plaintiff could not prove compliance.
The Second District reversed, holding the trial court improperly considered facts beyond the complaint and erred by dismissing with prejudice rather than dismissing without prejudice (unless the complaint on its face showed the notice period had expired).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the complaint sufficiently alleged compliance with the section 768.28 notice requirement	Nelson argued her complaint properly alleged notice generally (listing dates and stating the Department had been notified) which is sufficient under Fla. R. Civ. P. 1.120(c)	County argued Nelson failed to allege the Department of Financial Services was timely notified and pointed to lack of an attached letter or specific date	Court held the general allegation of notice in the complaint was sufficient to survive a motion to dismiss; the trial court erred by probing evidence and by dismissing with prejudice when the complaint did not show the notice period had expired
Whether a trial court may consider evidence outside the four corners of the complaint at the motion-to-dismiss stage and enter dismissal with prejudice	Nelson contended the court could not resolve factual issues or require proof at the motion-to-dismiss stage	County relied on counsel's inability to produce a copy of the notice letter at the hearing to justify dismissal with prejudice	Court ruled motions to dismiss are limited to the complaint's allegations; factual disputes and proof belong later in the proceedings; dismissal with prejudice was improper absent a facial showing that the statutory notice period had run

Commercial Carrier Corp. v. Indian River Cty., 371 So. 2d 1010 (Fla. 1979) (compliance with statutory notice must be alleged in the complaint)
McSwain v. Dussia, 499 So. 2d 868 (Fla. 1st DCA 1986) (general allegation of notice sufficient under rule 1.120(c) and shifts burden to defendant to deny specifically)
Scullock v. Gee, 161 So. 3d 421 (Fla. 2d DCA 2014) (motion to dismiss is not the stage to resolve factual disputes about notice; dismissal without prejudice is proper if allegations are insufficient)
Brocato v. Health Options, Inc., 811 So. 2d 827 (Fla. 2d DCA 2002) (trial court cannot look beyond the complaint on a motion to dismiss)
Levine v. Dade Cty. Sch. Bd., 442 So. 2d 210 (Fla. 1983) (dismissal with prejudice is required only when complaint shows notice period has expired)
Sheriff of Orange Cty. v. Boultbee, 595 So. 2d 985 (Fla. 5th DCA 1992) (burden shifts to plaintiff to prove allegations subject to a specific denial)
Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So. 2d 1078 (Fla. 2d DCA 2002) (on motion to dismiss, courts accept allegations as true and construe them in plaintiff's favor)
Gann v. BAC Home Loans Servicing LP, 145 So. 3d 906 (Fla. 2d DCA 2014) (motion to dismiss tests legal sufficiency, not facts)
Ferguson Enters., Inc. v. Astro Air Conditioning & Heating, Inc., 137 So. 3d 613 (Fla. 2d DCA 2014) (motion to dismiss is not a substitute for summary judgment)