Tampa, Florida - Business Law lawyer represented Appellees with disputing a series of written agreements related to the sale of products in specified regions of Florida.

This dispute arises among several parties who entered into a

series of written agreements (including multiple addenda) related to

the sale of products in specified regions of Florida from 2004 to

2018. Zimmer US, Inc., d/b/a Zimmer Biomet (Zimmer) and two of

its distributors, Medtech Southeast, Inc., and Orthopedics, Inc. (the

Distributor Defendants), were defendants in the Original Complaint

and subsequent Amended Complaint filed by Precision Orthopedics,

Inc. The trial court dismissed the Original Complaint without

prejudice and later dismissed the Amended Complaint with

prejudice. Because the trial court looked beyond the four corners of

the Amended Complaint and did not accept as true all well-pleaded

allegations when it granted the motion to dismiss, we must reverse

and remand for further proceedings.

On March 9, 2004, Precision and Zimmer entered into an

agreement (the Representative Agreement) making Precision the

sales representative for Zimmer's medical devices in a territory

comprised of twenty-two counties in Florida. Under its terms, the

Representative Agreement became effective on April 1, 2004, and

expired on December 31, 2013, unless extended at Zimmer's "sole

discretion." The Representative Agreement granted Precision the

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right to solicit orders for specific Zimmer products, which included

"certain orthopedic implants and devices and other medical

products, services, and supplies." The Representative Agreement

gave Zimmer broad discretion in carrying out its terms, including

the right to determine which products Precision had the right to sell

and in which territory.

Prior to the Representative Agreement, the principal owner of

Precision, George Etheridge, sold his controlling interest in

Precision. Despite this sale, Zimmer wished for Etheridge to remain

in his current position at Precision and to perform the services

required under the Representative Agreement. Thus, on the same

day the Representative Agreement was executed, the parties

separately executed an addendum to the contract (the 2004

Addendum) as a "bargain to keep Etheridge on the job" for five more

years. In return, Zimmer agreed to give up, temporarily, some of its

reserved discretion over Precision's selling capacity as well as to pay

Etheridge $10 million over five years. The 2004 Addendum set out

incentive-based installment payments, which were due and payable

to Etheridge on December 31 of each calendar year starting in 2004

and ending on December 31, 2008—the date on which the 2004

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Addendum expired pursuant to its terms. At the same time, the

Representative Agreement's term expressly remained unchanged

and was set to continue through December 31, 2013. After the

2004 Addendum, the parties subsequently entered into five

additional addenda to the Representative Agreement over the life of

their relationship.

In June 2015, Zimmer's then-parent company, Zimmer

Holdings, Inc., acquired and merged with one of its largest

competitors, Biomet, Inc., and all of its subsidiaries. Following the

acquisition, Zimmer Holdings, Inc., became Zimmer Biomet

Holdings, Inc.1

Prior to the acquisition, Biomet had agreements with the

Distributor Defendants to sell and distribute Biomet's products in

territories that overlapped with the territories in which Precision

distributed and sold Zimmer products. Following the merger,

Zimmer reiterated to Precision that it intended to keep the status

quo: Precision would continue selling and distributing only so1

Although Zimmer became known as "Zimmer Biomet" after

the merger, for the purposes of this opinion, we refer to both

Zimmer and Zimmer Biomet as Zimmer.

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called "legacy" Zimmer products, and the Distributor Defendants

would continue selling and distributing legacy Biomet products.

Precision expressed its displeasure with Zimmer's decision but

continued selling legacy Zimmer products in its assigned territory

for the next three and one-half years (until the expiration of the

Representative Agreement, which had been extended to December

31, 2018, by virtue of the parties' 2013 Addendum).

As the Representative Agreement approached its expiration

date, Precision and Zimmer were unable to mutually agree to terms

under which they could continue their relationship. Accordingly,

the companies did not agree to an extension of the Representative

Agreement, and it expired of its own terms on December 31, 2018.

On February 14, 2019, Precision filed its Original Complaint.

Relying on the 2004 Addendum, Precision brought two claims for

breach of contract, alleging that Zimmer had breached the

Representative Agreement and 2004 Addendum by (i) failing to

allow Precision to sell Biomet products in its assigned territory and

(ii) failing to pay Precision for commissions on sales of Biomet

products in Precision's assigned territory made by the Distributor

Defendants. Precision also sought a declaration that it was no

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longer bound by the noncompete or confidentiality clauses in the

Representative Agreement because Zimmer had allegedly breached

that contract. Additionally, Precision brought claims against the

Distributor Defendants for interfering with its contractual rights

under the Representative Agreement and 2004 Addendum. The

Original Complaint relied solely on the plain language of the

Representative Agreement and 2004 Addendum. Precision argued

that "the 2008 Addendum operated to extend the term of the 2004

Addendum" when it incorporated the 2004 Addendum by reference.

Zimmer and the Distributor Defendants moved to dismiss all claims

against them.

The trial court found that "[n]one of the additional addenda

altered the material provisions of the [Representative] Agreement

and the 2004 Addendum." The trial court noted that "[t]he

recitations specifically say the [2004] Addendum is for the purpose

of securing the continued services of Etheridge" and that "[n]o

permanent structural change to the Parties' relationship is

mentioned" in the 2004 Addendum. While the trial court

recognized the possibility that the parties could have intended to

permanently expand the scope of Precision's exclusivity and

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constrain Zimmer's discretion when it entered the 2004

Addendum—even "without mentioning it in the recitations"—both of

those occurrences would be "unusual and unexpected." The trial

court accordingly held that the 2004 Addendum was unambiguous,

finding that "in order to conclude the Parties intended to

fundamentally alter the base contract the language would have to

say so clearly."

The trial court also recognized that "different provisions in a

contract can have different effective timespans, depending on the

language used," citing St. Johns Investment Management Co. v.

Albaneze, 22 So. 3d 728 (Fla. 1st DCA 2009). The court found that

"[t]he fatal flaw in Precision's argument is that any subsequent

contract that would 'incorporate by reference' the 2004 Addendum

would incorporate the whole addendum, including its definition of

'Addendum Term.' " The meaning of "Addendum Term" in the 2004

Addendum "could not change when another document incorporated

it by reference. The incorporating document is bound by the terms

of the incorporated document, not the other way around." The trial

court concluded that although "[p]arts of the 2004 Addendum may

still be viable today, . . . each part must be read individually to

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determine its continuing vitality" and that the Original Complaint

failed to state a claim for breach of contract or tortious interference

because those claims "depend on contractual provisions that are

long expired" pursuant to the terms of the "Addendum Term"

provision in the 2004 Addendum. The trial court also dismissed the

declaratory claim because Precision failed to allege a real and

present controversy. Additionally, the court dismissed the two

counts against the Distributor Defendants because they alleged

"tortious interference with [expired] contracts."

In its Amended Complaint, Precision raised the same counts

as before but provided more detailed information on the

relationship and added a count alleging that Zimmer failed to pay

commissions due from the 2013 Addendum on Zimmer products

sold before December 31, 2018 (an amount Precision estimated to

be between $30,000 and $40,000). Additionally, in its Amended

Complaint, Precision sought to avoid its earlier assertion that the

contract was unambiguous by newly alleging that "notwithstanding

the 'Addendum Term' " in the 2004 Addendum, parol evidence

highlighting the parties' "course of dealing and intent" should be

considered.

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The trial court again dismissed Precision's claims. The court

found that the new allegations "still do not escape the plain

language of the contract as expressed in the previous order." Thus,

the court reasoned it did not appear that Precision's Amended

Complaint had a pleading problem—it was a "substantive issue of

the interpretation of the contracts" that yielded the result. The trial

court dismissed all counts with prejudice but offered Precision the

opportunity to file a motion seeking leave to amend. Precision

declined to seek leave to amend, and this appeal followed.2

We must determine whether the trial court erred in dismissing

the Amended Complaint with prejudice. In considering a motion to

dismiss, the trial court must confine its review to the four corners of

the complaint, draw all inferences in favor of the pleader, and

accept all well-pleaded allegations as true. City of Gainesville v.

2

We originally lacked jurisdiction over this appeal as the order

on appeal merely granted a motion to dismiss with prejudice

without dismissing the action, which is not an appealable order.

See McManus v. Gamez, 276 So. 3d 1005, 1007 (Fla. 2d DCA 2019).

The court's standard order for this situation was issued, and a final

order was procured pursuant to Florida Rule of Appellate Procedure

9.110(l) related to premature appeals. Thus, this court now has

jurisdiction pursuant to Florida Rule of Appellate Procedure

9.030(b)(1)(A).

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Dep't of Transp., 778 So. 2d 519, 522 (Fla. 1st DCA 2001); see also

Alevizos v. John D. & Catherine T. MacArthur Found., 764 So. 2d 8,

9 (Fla. 4th DCA 1999) ("[A] court's gaze is limited to the four corners

of the complaint, including the attachments incorporated in it, and

all well pleaded allegations are taken as true."). We review a trial

court's order granting a motion to dismiss de novo. See Swope

Rodante, P.A. v. Harmon, 85 So. 3d 508, 509 (Fla. 2d DCA 2012).

"In the context of a motion to dismiss, the plain language of each

contract must be scrutinized along with the complaint to determine

if sufficient ultimate facts are pleaded to state a claim for relief."

Coleman v. 688 Skate Park, Inc., 40 So. 3d 867, 869 (Fla. 2d DCA

2010). Additionally, this court in Consuegra v. Lloyd's Underwriters

at London, 801 So. 2d 111, 112 (Fla. 2d DCA 2001), reversed the

trial court's conclusion that Lloyd's did not breach its contract with

Mr. Consuegra, noting:

[A] motion to dismiss for failure to state a cause of action

is not a substitute for a motion for summary judgment,

and in ruling on such a motion, the trial court is confined

to a consideration of the allegations found within

the four corners of the complaint. Cyn-co, Inc. v.

Lancto, 677 So. 2d 78, 79 (Fla. 2d DCA 1996). We do not

find that the plain language of the contract in this case

unambiguously established that Lloyd's did not breach

the duty alleged in the complaint.

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It is undisputed that when the parties executed the

Representative Agreement and the 2004 Addendum, they intended

that those two documents would govern the parties' business

relationship until the end of 2008. The trial court concluded that

the Representative Agreement, as modified by the 2004 Addendum,

was the operative document governing the parties' relationship.

The Representative Agreement as signed in 2004 had a term that

extended through 2013, but the 2004 Addendum was set to expire

on December 31, 2008.

Precision argues that the 2004 Addendum applies because it

was contemplated by subsequent addenda. The trial court,

however, found that the recitations in the 2004 Addendum related

to the purpose of retaining Ethridge and were not meant to

permanently alter the parties' relationship as defined in the

Representative Agreement, specifically noting that "different

provisions in a contract can have different effective timespans,

depending on the language used." See also St. Johns Inv. Mgmt.

Co., 22 So. 3d 728. The trial court also determined extrinsic

evidence was unnecessary to determine the parties' intent because

of the plain language of the document.

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Precision argues that the divergent interpretations of whether

the addenda constituted a permanent alteration beyond the

purpose of retaining Etheridge demonstrates an ambiguity that

cannot be resolved on a motion to dismiss. Precision further argues

that it is not required to explain why the 2004 Addendum was

extended in order to survive a motion to dismiss. In its Amended

Complaint, Precision expanded its explanation of the contractual

history between the parties describing in depth its position that the

parties continued to operate under the terms of the Representative

Agreement, as modified by all addenda including the 2004

Addendum, even after its purported expiration date.3

We agree with Precision that the Amended Complaint

recounted many examples of conduct that at a minimum created

3 The trial court stated in its order dismissing the Amended

Complaint that

[t]he plaintiff's opposition memorandum . . . and

argument in court make an elegant presentation but still

do not escape the plain language of the contract as

expressed in the previous order. The last two counts fall

with the first four.

It does not appear to be a problem with pleading,

but rather a substantive issue of interpretation of the

contracts, that yields this result.

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issues that could not properly be resolved on a motion to dismiss.

The trial court was required to limit its review at this stage to the

four corners of the Amended Complaint and accept as true all wellpleaded allegations. Precision's course-of-conduct assertions

contained in the Amended Complaint had to be considered. The

trial court erred when it instead made ultimate findings regarding

the relationship of the parties through their agreements on a

motion to dismiss based solely on the language of the contract. See

Consuegra, 801 So. 2d at 112. The plain language of this contract

did not preclude Precision's claims, and it was error to dismiss the

related claims in the Amended Complaint with prejudice for failure

to state a cause of action.

Finally, we note that the trial court's order did not specifically

address the new count in the Amended Complaint alleging that

Zimmer failed to pay certain commissions owed on the sale of legacy

Zimmer products through 2018 according to the 2013 Addendum.

This allegation is, of course, distinct from the contract claims in

which Precision seeks damages under the 2004 Addendum for the

sale of legacy Biomet products. The dismissal of this count must

also be reversed because, as previously stated, a motion to dismiss

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cannot go beyond the four corners of the Amended Complaint, and

the allegation that these outstanding commissions are owed must

be accepted as true as "well-pleaded allegations." See City of

Gainesville, 778 So. 2d at 522. The request for declaratory relief

and the counts against the Distributor Defendants must further be

reversed because the allegations therein must be accepted as true

under a motion-to-dismiss analysis. We likewise see nothing in the

plain language of the contracts at issue that would otherwise

require dismissal of these claims.

We do not comment on the merit of the trial court's analysis of

the agreements in this case. Rather, we simply hold that such

analysis was improper based on the specific allegations of the

course of conduct between the parties contained in the Amended

Complaint. The granting of the motion to dismiss was improper.