Associate Attorney
In Kennedy Law Group v. Uiterwyk, the Second District Court of Appeal addressed a fundamental pleading-stage principle that litigators encounter regularly: a trial court generally cannot dismiss a complaint based on an affirmative defense that is not apparent from the face of the complaint itself.
The case arose from a tortious interference action brought by Kennedy Law Group against attorneys Vicki Uiterwyk and Michael Swope. Kennedy alleged that it had referral and contingency fee agreements with attorney Hendrik Uiterwyk and that after Hendrik became incapacitated following a stroke, Vicki and Swope interfered with those business relationships by diverting cases and clients away from Kennedy Law Group. According to the complaint, those actions deprived Kennedy of fees it otherwise would have earned.
Vicki moved to dismiss, arguing that her actions were justified and privileged because she was acting pursuant to a durable power of attorney for her husband and, later, under a letter of administration issued after his death. At the hearing, the trial court required production of those documents, reviewed them, and ultimately dismissed the tortious interference claim with prejudice, finding that Vicki had acted under lawful authority as her husband’s agent.
The Second DCA reversed. The court emphasized that when ruling on a motion to dismiss, a trial court is confined to the four corners of the complaint, must accept the allegations as true, and may not consider matters outside the pleading. While dismissal based on an affirmative defense is sometimes appropriate, the defense must be apparent from the face of the complaint itself. Here, the complaint did not reference the durable power of attorney, the letter of administration, or any facts establishing the agency relationship that formed the basis of Vicki’s privilege defense.
The appellate court rejected the argument that those documents could nevertheless be considered because they were central to the dispute. Even if the documents ultimately support the defense, they remained matters outside the complaint. By considering them and relying on them to dispose of the claim, the trial court improperly resolved factual issues that should have been addressed at a later stage of the litigation.
Practice Pointers
- A motion to dismiss tests the legal sufficiency of the complaint—not the merits of a defendant’s defenses.
- Courts are limited to the four corners of the complaint when ruling on a motion to dismiss.
- An affirmative defense can support dismissal only when the defense is conclusively established by the allegations of the complaint itself.
- Documents and facts outside the complaint typically are suited for subsequent litigation, whether that be through a motion for summary judgment or later at trial, not in a motion to dismiss.
- Trial courts may not weigh evidence or resolve factual disputes at the motion to dismiss stage.
Takeaway: This case serves as a good reminder that even a potentially strong affirmative defense cannot justify dismissal if the defense depends on facts outside the complaint. When litigating motions to dismiss, the question is not whether the defendant will ultimately prevail, but whether the plaintiff has stated a legally sufficient claim. If the defense requires the court to review outside documents or resolve factual disputes, the case has likely moved beyond the scope of a motion to dismiss.
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