EDWARD SCHNEIDERMAN, as Personal Representative of the ESTATE of LENORE TEPPER v. DANIELLE BAER, MERRITT BAER, and EAVLYN BAER

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
EDWARD SCHNEIDERMAN, as Personal Representative of
THE ESTATE OF LENORE TEPPER, and MONTANA QUELER,
Appellants,
v.
DANIELLE BAER, MERRITT BAER, and EAVLYN BAER,
Appellees.
No. 4D20-2582
[February 9, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Charles E. Burton, Judge; L.T. Case No.
502014CP002456XXXXSB.
Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Cedar
Mountain, NC, for appellants.
Carlos M. Sires of Boies Schiller Flexner LLP, Fort Lauderdale, and
James Fox Miller of Boies Schiller Flexner LLP, Hollywood, for appellees.
GROSS, J.
After 57 years of marriage, Lenore Tepper filed a dissolution of marriage
action against her husband Irvin Tepper in 2009. This case is one of
multiple lawsuits arising out of that divorce. Both Irvin and Lenore are
now deceased. The gravamen of this action is that Irvin committed fraud
in the divorce action by failing to disclose over $2 million in marital assets
and securing the entry of a final judgment without filing a financial
affidavit.
The dispute in this case is between two factions of the Teppers’
descendants—the Schneiderman family, which was favored by Lenore, and
the Baer family, which was favored by Irvin.
The Schneiderman family includes (1) appellant Edward
Schneiderman, the husband of the Teppers’ daughter Anise, and the
personal representative of Lenore’s estate, and (2) appellant Montana
Queler, Anise’s daughter and the Teppers’ granddaughter.
The Baer family includes (1) appellee Eavlyn Baer, the Teppers’
daughter, (2) appellee Danielle Baer, Eavlyn’s daughter and the Teppers’
granddaughter, and (3) appellee Merritt Baer, Eavlyn’s son and the
Teppers’ grandson.
We reverse the final judgment on procedural grounds—the court
granted a motion to dismiss but relied on facts outside the four corners of
the complaint, such as a deposition and a pleading from another case. We
affirm the trial court’s ruling that Montana Queler was without standing
to challenge her grandparents’ 2009 divorce decree.
The Dissolution of Marriage
In September 2009, Lenore and Irvin settled their dissolution of
marriage action by way of a Marital Settlement Agreement (“MSA”), which
they executed the week after attending a mediation.
The MSA settled all matters pertaining to the dissolution of marriage,
including the division of marital assets. One provision of the MSA stated:
“Attached hereto as EXHIBIT A is a schedule of all the assets and
liabilities, including real property, which are being distributed.” Exhibit A
was a two-page spreadsheet labeled “AGREED PLAN OF EQUITABLE
DISTRIBUTION,” which identified about $13.2 million in marital assets
and no marital liabilities.
Finally, the MSA provided that “[t]his Agreement constitutes the entire
understanding of the parties,” and that there were no representations
“other than those expressly set forth herein.”
Before the circuit court, Lenore testified that (1) she had enough time
to go over the MSA with her lawyer, (2) she was satisfied with her lawyer’s
advice, (3) she agreed with all of the MSA’s terms, (4) she was satisfied with
the MSA’s “division of all of your property,” (5) she believed the MSA was
a fair agreement, and (6) she agreed to be bound by the MSA.
The trial court entered a Final Judgment of Dissolution of Marriage,
incorporating the MSA. The judgment stated that the MSA was “facially
fair, and was voluntarily entered into by the parties after full disclosure
and is in the best interests of the parties.”
Related Litigation and Testimony
A. The Will Contest
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After Irvin died in 2010, Montana and Anise sued to contest Irvin’s will.
During the will-contest case, Lenore was deposed and testified in
October 2010 that she “would consider reopening [the divorce] case if this
thing winds up in a flop.” Lenore explained that “[i]f this thing isn’t settled
the way I think it should be settled, then I’ll go back to the divorce case,
because I know that Mr. Tepper had much more money than they
swore that he had, and money has been found since then.” (Emphasis
supplied).
The will contest was settled by an agreement in which Montana and
Anise received payments from Irvin’s trust and agreed not to challenge the
MSA between Irvin and Lenore.
B. Lenore’s Testimony in an Arbitration Proceeding
In an arbitration proceeding that Lenore, Anise, and Montana brought
against the brokerage company where Irvin kept his accounts, Lenore was
questioned in 2013 about her deposition testimony in the will-contest
case. There, Lenore testified that Irvin had not disclosed all of his assets
during the divorce case.
C. MSA Breach Case
Lenore died in March 2014. The Baers later sued Lenore’s estate and
others for breach of the MSA. The circuit court entered summary final
judgment in the Baers’ favor, ruling that Lenore had breached the MSA
“by placing $3.3 million of assets in P.O.D. accounts in an effort to bypass
her responsibilities” under the MSA.
During the MSA breach case, the personal representative of Lenore’s
estate raised extrinsic fraud as an affirmative defense, seeking to set aside
the dissolution judgment and rescind the MSA on the ground that Irvin
had defrauded Lenore by failing to disclose the modification of a trust.
The circuit court dismissed the extrinsic fraud defense as untimely,
finding that “the facts underlying the extrinsic fraud now being raised by
the Personal Representative were known by Lenore Tepper and her counsel
no later than December 2011.” Emphasizing that Lenore “took no action
during her lifetime to rescind the Final Judgment [of Dissolution] or raise
any claim of extrinsic fraud,” the court found that “the extrinsic fraud
claim was not brought as soon as reasonably possible upon discovery of
the basis for the claim.” Under these circumstances, the court reiterated,
Lenore’s “failure to take any action to rescind the MSA during her
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lifetime—she passed in March 2014—renders the extrinsic fraud claim
untimely.”
The Petition in the Instant Case
Edward Schneiderman, as personal representative of Lenore’s estate,
along with Montana Queler, filed the instant “Petition for Declaratory
Judgment and Action in Equity to Set Aside Final Judgment of Dissolution
Based upon Fraud on the Court and Fraud in Connection with a Financial
Affidavit,” seeking relief pursuant to the court’s equitable authority,
Florida Rule of Civil Procedure 1.540(b), and Florida Family Law Rule of
Procedure 12.540(b). Eavlyn, Danielle, and Merritt (hereinafter “the
Baers”) were named as defendants, but Irvin’s estate was not.
The central allegation of the lengthy petition was this: “At bottom, Irvin
Tepper committed fraud by deliberately omitting as much as $2.3 Million
Dollars of marital assets from his financial disclosures to Lenore Tepper.”
According to the petition, Irvin orchestrated a “deceptively subtle scheme
aimed at convincing the Divorce Court, and Lenore, that he had satisfied
his mandatory, non-waivable disclosure obligations under Florida law by
providing Lenore with ‘full disclosure’ of his assets and liabilities,” when
in reality “he secretly manipulated and changed the previously agreed
upon terms of the [MSA] so that he was now providing Lenore Tepper with
no disclosure, and then . . . proffered that agreement to Lenore as though
it said exactly what the parties had agreed.”
As part of the fraudulent scheme, the petition alleged, Irvin engineered
the settlement in a way that avoided his obligation to file a sworn financial
affidavit in the divorce case. According to the petition, Irvin’s scheme
allowed him “to avoid any claim that he committed fraud in connection
with his financial affidavit, by avoiding making any representations to the
Court about his disclosure and avoiding the submission of any financial
disclosures to the Court.”
The petition alleged that “Lenore died without discovering the fraud.”
The Motion to Dismiss
In July 2020, the Baers moved to dismiss the petition, arguing, among
other things, that the petition was untimely.
The motion to dismiss relied upon documents in the related litigation,
including (1) Lenore’s deposition testimony in the Will Contest, (2) the
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order striking the extrinsic fraud defense in the MSA Breach Case, and (3)
the Settlement Agreement that resolved the Will Contest.
Appellants responded to the motion to dismiss by arguing, in relevant
part, that the motion to dismiss relied on matters outside the four corners
of the petition and that the Baers had not complied with the procedure for
judicial notice.
The Order Granting the Motion to Dismiss
The trial court granted the Baers’ motion to dismiss appellants’ petition
with prejudice. In the order, the court took judicial notice of the related
litigation, including the dissolution action, the Will Contest, the MSA
Breach Case, and a 2018 civil case in which Montana Queler and Lenore’s
estate are parties.
The court granted the motion to dismiss on three grounds. First, the
court ruled that Montana Queler lacked standing to challenge the MSA
because she “was not a party to the Tepper dissolution of marriage case or
a party to the marital settlement agreement.” Second, the court ruled that
“the Estate of Lenore Tepper and Montana Queler are estopped from
bringing this claim as they agreed not to challenge the Marital Settlement
Agreement . . . in exchange for a settlement of 2.6 million dollars.” 1 Third,
the court ruled that any claim of fraud pertaining to the MSA was untimely
because “Lenore Tepper was aware of the alleged fraud as far back as her
deposition testimony taken on October 25, 2010, which was cited by
Queler as a basis to amend her complaint in the 2018 civil case.” The
court later entered a final judgment.
The Circuit Court Erred in Considering Information Outside of the
Four Corners of the Petition—Judicially Noticed Records from
Prior Proceedings—in Ruling on the Motion to Dismiss.
When ruling on a motion to dismiss, “[a] court may not go beyond the
four corners of the complaint and exhibits attached thereto.” Kohl v. Blue
Cross & Blue Shield of Fla., Inc., 988 So. 2d 654, 658 (Fla. 4th DCA 2008).
“In assessing the adequacy of the pleading of a claim, the court must
accept the facts alleged therein as true and all inferences that reasonably
can be drawn from those facts must be drawn in favor of the pleader.”
MEBA Med. & Benefits Plan v. Lago, 867 So. 2d 1184, 1186 (Fla. 4th DCA
2004). However, while affirmative defenses such as untimeliness are
1However, contrary to the trial court’s ruling, Lenore was not a party to the Will
Contest.
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generally raised in an answer, dismissal is proper where the facts that
support the defense affirmatively appear on the face of the complaint and
establish conclusively that the action is barred as a matter of law. Garofalo
v. Proskauer Rose LLP, 253 So. 3d 2, 5 (Fla. 4th DCA 2018); City of Riviera
Beach v. Reed, 987 So. 2d 168, 170 (Fla. 4th DCA 2008).
Unless the parties have stipulated to judicial notice, a court cannot rely
on judicial notice to sidestep the four corners rule. See Bayview Loan
Servicing, LLC v. Brown, 329 So. 3d 210, 212 (Fla. 2d DCA 2021) (“For a
trial court to take judicial notice, it must necessarily consider information
outside of the four corners of the complaint. And this court has
consistently held that the trial court may not consider information outside
the four corners of the complaint when ruling on a motion to dismiss.”);
Norwich v. Glob. 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.”).
Here, the trial court erred by considering information outside the four
corners of the petition in ruling on the motion to dismiss. Deciding a case
based on “undisputed facts” is the role of summary judgment, not a motion
to dismiss. And the timeliness defense asserted in the motion to dismiss
cannot be determined as a matter of law from the four corners of the
petition.
We distinguish this case from Metropolitan Casualty Insurance Co. v.
Tepper, 969 So. 2d 403, 405 (Fla. 5th DCA 2007). There, the Fifth District
recognized an exception to the four corners rule “where the facts are
undisputed and the motion to dismiss raises only a pure question of law.”2
2 We question whether Tepper rests on a sound legal basis. Tepper cited Ground
Improvement Techniques, Inc. v. Merchants Bonding Co., 707 So. 2d 1138, 1138
(Fla. 5th DCA 1998), for the proposition that an exception to the four corners rule
occurs “where the facts are undisputed and the motion to dismiss raises only a
pure question of law.” 969 So. 2d at 405. In Ground Improvement, the Fifth
District affirmed a dismissal for forum non conveniens “based upon the pleadings
and undisputed facts.” 707 So. 2d at 1138. However, a court is permitted to
consider evidence outside the four corners of the complaint where the motion to
dismiss is based upon forum non conveniens. Steiner Transocean Ltd. v.
Efremova, 109 So. 3d 871, 873 (Fla. 3d DCA 2013). In any event, in Ground
Improvement, the motion to dismiss did not attach any affidavits, so the Fifth
District emphasized that the amended complaint on its face was sufficient to
show that a forum non conveniens transfer was warranted. 707 So. 2d at 1139–
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Id. However, Tepper was a case where (1) the appellant had waived the
four corners violation by failing to raise it in the trial court and (2) the
appellant did not dispute the facts that were relevant to the motion to
dismiss. Id. at 405; see also Gabriji, LLC v. Hollywood E., LLC, 304 So. 3d
346, 349 (Fla. 4th DCA 2020) (finding Tepper distinguishable because “the
parties do dispute the facts”).
We also reject the notion that the doctrine of incorporation by reference
permitted the trial court to consider all the records from other proceedings.
See, e.g., One Call Prop. Servs. Inc. v. Sec. First Ins. Co., 165 So. 3d 749,
752 (Fla. 4th DCA 2015) (holding that “where the terms of a legal document
are impliedly incorporated by reference into the complaint, the trial court
may consider the contents of the document in ruling on a motion to
dismiss”). The doctrine cannot be stretched to allow for the mention of a
prior proceeding in a complaint to open the door to the trial court
considering the entirety of the prior proceeding in ruling on a motion to
dismiss, where the petitioners’ standing to bring suit was not dependent
upon the records from the prior proceeding. See Landmark Funding, Inc.
on Behalf of Naples Syndications, LLC v. Chaluts, 213 So. 3d 1078, 1080
(Fla. 2d DCA 2017). As explained below, however, we conclude from the
four corners of the petition that Montana Queler lacked standing to set
aside her grandparents’ dissolution decree.
Montana Queler Did Not Have Standing to Set Aside
Her Grandparents’ 2009 Dissolution Decree
As a non-party to the dissolution action who was not an intended third
party beneficiary of the MSA, Montana Queler is without authority to set
aside or modify the final judgment of dissolution. See Caretta Trucking,
Inc. v. Cheoy Lee Shipyards, Ltd., 647 So. 2d 1028, 1030–31 (Fla. 4th DCA
1994). The Florida Supreme Court has recognized a limited circumstance
where the prospective lineal descendants of a deceased ancestor are
entitled to challenge a dissolution “judgment or decree which is attempted
to be enforced against them adverse to such rights or interests.” In re
Kant’s Est., 272 So. 2d 153, 156 (Fla. 1972). However, Kant’s Estate
involved the setting aside of a void divorce decree—there, a Mexican
divorce between the deceased father’s putative spouse and her prior
husband—in a situation where the divorce itself prejudiced the inheritance
rights of the children. The challenge in this case does not claim that the
entirety of the 2009 divorce judgment was void. Indeed, although the
instant petition requested that the court set aside the MSA, the petition
40. Thus, Ground Improvement does not stand for the proposition that there is a
broad “undisputed facts” exception to the four corners rule.
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also sought to “maintain[ ] the legal divorce of Irvin and Lenore Tepper.”
Thus, we conclude that Queler lacks standing to assert the fraud claims
in the petition.
Conclusion
We reverse the dismissal of the petition as to the personal
representative of Lenore’s estate, but affirm the dismissal as to Queler.
On remand, appellees may seek to challenge the timeliness of the
personal representative’s lawsuit on summary judgment or at trial based
on common law cases or statutes. See Columbus Hotel Corp. v. Hotel Mgmt.
Co., 156 So. 893, 898 (Fla. 1934); Gladding Corp. v. Register, 293 So. 2d
729, 732 (Fla. 3d DCA 1974); Rood Co. v. Bd. of Pub. Instruction of Dade
Cnty., 102 So. 2d 139, 141–42 (Fla. 1958); see also §§ 95.031(2)(a),
95.11(3)(j), Fla. Stat. (2020). 3
Reversed in part, affirmed in part, and remanded.
WARNER and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3 We note that Florida Family Law Rule of Procedure 12.540(b) has no application
in this case because Irvin never filed the financial affidavit required by Rule
12.285. Appellants’ theory of fraud is that, instead of a financial affidavit, Irvin
submitted a “distribution” spreadsheet that was incorporated into the MSA,
which allowed him to evade the financial affidavit requirement and understate
the parties’ marital assets. In addition, we read the “no time limit” language of
Rule 12.540(b) as applying to a motion for relief from judgment filed in the
original dissolution action, not to an independent action attacking a portion of
the judgment. Any other result would run afoul of the Legislature’s power to
establish statutes of limitation. See Williams v. Law, 368 So. 2d 1285, 1287–88
(Fla. 1979) (recognizing legislature’s authority to “establish” statutes of
limitation).
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