GREK ON BEHALF OF GREK v. CL GOLDEN LLC MD (2026)

After George E. Grek's death, Appellant Renee Grek sued Appellees as the personal representative of his estate. The operative complaint asserted claims for negligence, medical malpractice, nursing home negligence, violations of Florida's Nursing Home Residents Bill of Rights, and wrongful death. To plead compliance with applicable statutory presuit screening requirements, the complaint alleged that Appellees were served with notices of intent. It also included counsel's certification that a reasonable investigation had been performed, gave rise to reasonable grounds to support the action, and was supported by a qualified health care provider's corroborating affidavit. The affidavit and notices were not attached to the complaint.

As relevant here, Appellees moved to dismiss on the ground that the action was barred by the limitations period for COVID-19-related claims against health care providers. See § 768.381(5), Fla. Stat. They relied on presuit materials submitted with their motions. Appellant opposed dismissal, arguing that the operative complaint did not plead a COVID-19-related claim and that the trial court could not rely on the presuit materials to conclude otherwise. The trial court considered those materials, concluded that Appellant's claims were COVID-19-related, and dismissed the third amended complaint with prejudice. It later entered final judgments.

We review the dismissals de novo. A motion to dismiss tests the legal sufficiency of the complaint, so the trial court must accept the complaint's factual allegations as true and draw all reasonable inferences in favor of the nonmoving party. Toney v. Courtney, 191 So. 3d 505, 507 (Fla. 1st DCA 2016).

The statute of limitations is an affirmative defense that ordinarily must be raised in an answer. Mooshie v. Fla. State Lodge Fraternal Ord. of Police, 397 So. 3d 1202, 1204 (Fla. 1st DCA 2024). It may support dismissal only when the complaint or its attachments conclusively establish the defense. Id.; see also Williams v. Gaffin Indus. Servs., Inc., 88 So. 3d 1027, 1029 (Fla. 2d DCA 2012). A trial court therefore may not dismiss a complaint based on an affirmative defense that requires consideration of matters outside the four corners of the complaint. Newberry Square Fla. Laundromat, LLC v. Jim's Coin Laundry & Dry Cleaners, Inc., 296 So. 3d 584, 589 (Fla. 1st DCA 2020).

Here, the limitations defense for COVID-19-related claims was not apparent, much less conclusively established, on the face of the complaint. The complaint did not allege that Mr. Grek contracted COVID-19 or that Appellant's claims were based on or related to COVID-19. The affidavit and notices were not attached to the complaint. And the complaint's limited reference to those materials as support for presuit compliance did not incorporate their contents as substantive allegations establishing Appellees’ limitations defense.

To the extent the dismissals also rested on section 768.381’s heightened pleading or culpability requirements, the same reasoning applies. Those requirements apply only to COVID-19-related claims, and the operative complaint did not plead such a claim.

Accordingly, we reverse the orders dismissing the third amended complaint with prejudice, vacate the resulting final judgments, and remand for further proceedings.

Reversed and Remanded.

Per Curiam.

Lewis, Rowe, and Ray, JJ., concur.