Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ROCCO A. MIGLIAZZO A/K/A ROCCO ) ANTHONY MIGLIAZZO, ) ) Appellant, ) ) v. ) Case No. 2D18-655 ) WELLS FARGO BANK, N.A., ) ) Appellee. ) ) Opinion filed January 24, 2020. Appeal from the Circuit Court for Collier County; Hugh D. Hayes, Judge Jared M. Krukar of DPW Legal, Tampa, (withdrew after briefing); Dineen Pashoukos Wasylik of DPW Legal, Tampa; and Fitzgerald A. Frater and Nathalie Nozile of Frater Law Firm, P.A, Naples, for Appellant. Dean A. Morande and Michael K. Winston of Carlton Fields Jorden Burt, P.A., West Palm Beach; and Michael A. Cohn, Martin S. Awerbach, and Jacqueline F. Perez of Awerbach | Cohn, Clearwater, for Appellee. MORRIS, Judge. Rocco A. Migliazzo appeals a final summary judgment of foreclosure, a summary judgment on his counterclaim for slander of title, and an order dismissing his counterclaim to quiet title, all entered in favor of Wells Fargo Bank, N.A. We affirm without comment the final summary judgment of foreclosure and the summary judgment on Migliazzo's counterclaim. However, we reverse the order dismissing his counterclaim to quiet title. In November 2009, Wells Fargo filed an action to foreclose a mortgage on an entire parcel owned by Migliazzo, consisting of an east tract and a west tract.1 Wells Fargo also recorded a notice of lis pendens that attached to both tracts. In October 2010, Wells Fargo filed an amended complaint, adding a count to reform the mortgage on the basis that the description of the legal property should have only included the east tract and not the west tract. Wells Fargo also filed a notice of amended lis pendens, identifying that only the east tract is the subject of the foreclosure litigation. In May 2013, Migliazzo filed an amended answer and counterclaims against Wells Fargo, including a counterclaim to quiet title. Migliazzo alleged that the west tract was never intended to be subject of the mortgage and that by recording the 2005 mortgage and the 2009 lis pendens, Wells Fargo created a cloud on the west tract and impaired the marketability of title. In December 2013, Wells Fargo answered the counterclaim, alleging that at the time of the recordings, Wells Fargo had a good faith belief that the entire parcel 1The parties engaged in years of pleading and motion practice. We mention only the pleadings and motion necessary to an understanding of Migliazzo's counterclaim to quiet title. -2- was subject to the mortgage and lis pendens. In October 2014, Wells Fargo recorded a partial release of mortgage, releasing the west tract from the mortgage. In December 2014, Wells Fargo filed a motion to dismiss Migliazzo's counterclaim to quiet title, alleging that Wells Fargo had removed any encumbrance on the west tract by recording the amended lis pendens and the partial release of mortgage. After a hearing, the trial court granted the motion to dismiss Migliazzo's counterclaim to quiet title with prejudice, referring to the partial release of mortgage and ruling that Wells Fargo "does not now have, nor has ever had, any interest in, or encumbrance upon" the west tract. On appeal, Migliazzo argues that the trial court erred in granting Wells Fargo's motion to dismiss Migliazzo's counterclaim to quiet title to the west tract. He contends that the trial court erred in going beyond the four corners of the counterclaim and considering the amended lis pendens and the partial release of mortgage. "A motion to dismiss is not a substitute for a motion for summary judgment, and in ruling on a motion to dismiss a complaint the trial court is confined to consideration of the allegations found within the four corners of the complaint." Baycon Indus., Inc. v. Shea, 714 So. 2d 1094, 1095 (Fla. 2d DCA 1998). "The motion does not provide authority to the trial court to look beyond the complaint to consider the sufficiency of the evidence which either party is likely to produce." Al-Hakim v. Holder, 787 So. 2d 939, 941-42 (Fla. 2d DCA 2001) (citing Holland v. Anheuser Busch, Inc., 643 So. 2d 621, 623 (Fla. 2d DCA 1994)). In ruling on the motion to dismiss the counterclaim, the trial court considered matters that were outside the four corners of Migliazzo's counterclaim. Even -3- though it appears that the trial court was attempting to expeditiously decide the issue on the merits, the trial court was not permitted to consider or take judicial notice of matters outside of the counterclaim to which the motion to dismiss was directed. See Norwich v. Global Fin. Assocs., LLC, 882 So. 2d 535, 537 (Fla. 4th DCA 2004) ("While the defenses of res judicata and collateral estoppel may be resolved through a motion for summary judgment, the trial court erred when it ventured outside the four corners of the complaint, took judicial notice of the final judgment of dissolution of marriage, and dismissed the complaint with prejudice."). Even if the trial court were permitted to take judicial notice of a fact, as Wells Fargo suggests, citing McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So. 2d 214, 215 (Fla. 2d DCA 1998), there is no indication that Wells Fargo gave Migliazzo timely written notice of the request for judicial notice, see § 90.203, Fla. Stat. (2014) (providing that a court shall take judicial notice of any matter in section 90.202, which includes recorded documents, when the requesting party "[g]ives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare to meet the request"). Wells Fargo also contends that an exception to the four corners rule allows the trial court to consider a prior pleading by Migliazzo when ruling on Wells Fargo's motion to dismiss. See Fla. R. Civ. P. 1.110(d) (providing that "[a]ffirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(b)"). But this court has held "that in applying Florida Rule of Civil Procedure 1.110(d) to the question of dismissal on the basis of affirmative defenses, 'prior pleading' is only the pleading to which the motion to dismiss is directed." -4- Bd. of Cty. Comm'rs v. Aetna Cas. & Sur. Co., 604 So. 2d 850, 851 (Fla. 2d DCA 1992). "A motion to dismiss is directed logically to a specific pleading and party," and "[t]he affirmative defense [asserted as the basis for the motion to dismiss] must appear on the face of the 'prior pleading.' " Id. Here, the motion to dismiss was directed to Migliazzo's counterclaim and thus was limited to the four corners of that counterclaim. Accordingly, we reverse the order dismissing Migliazzo's counterclaim to quiet title and remand for further proceedings. Affirmed in part, reversed in part, and remanded. LaROSE and ATKINSON, JJ., Concur. -5-