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Preudhomme v. Bailey

Florida Court of Appeals, Fourth District

February 1, 2017


         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John Joseph Murphy, Judge; L.T. Case No. CACE 15-001467.

          Arlene Preudhomme, Pembroke Pines, pro se.

          No brief filed by appellees.

          Conner, J.

         Appellant Arlene Preudhomme appeals the dismissal of her complaint with prejudice after the first motions to dismiss, filed by separate defendants, were granted with no opportunity to amend the complaint. Addressing multiple arguments raised by Appellant, we agree the dismissal with prejudice was error and reverse and remand for further proceedings. We express no opinion as to whether Appellant's complaint should be dismissed for failure to state a cause of action. Additionally, Appellant appeals the reservation of jurisdiction by the trial court to award attorney's fees against her. Because the trial court did not make a ruling awarding fees, nor is there such an order in the record, we dismiss that portion of the appeal as premature. See Security Nat. Mortg. Co. v. Reid, 185 So.3d 1265, 1266 (Fla. 4th DCA 2016) (citing REC Ctrs., Inc. v. Shaughnessy, 407 So.2d 971, 975 (Fla. 4th DCA 1981)).

         Pertinent Facts and Trial Proceedings

         The final judgment dissolving Appellant's marriage to Appellee Garth Bailey and the resulting post-dissolution proceedings before the trial court have had numerous appearances before this Court. The action below on appeal in this case is yet another appearance.

         The marriage between Appellant and her former husband was dissolved in 2010. In January 2015, Appellant filed her pro se complaint for damages and other relief against the former husband and other individuals and entities in the civil division of the trial court. She alleged generally that she was seeking to set aside conveyances of property in an effort to enforce judgments and awards she received in the dissolution proceeding. Appellant's complaint asserted four counts: fraudulent conveyance, conversion, unjust enrichment, and accounting. Attached to her complaint were copies of exhibits reflecting transfers of property. Appellant did not attach copies of the initial final judgment dissolving the marriage or the partial disbursement order entered in the dissolution proceeding following remand by this Court from the appeal of the dissolution judgment.

         The former husband moved to dismiss Appellant's complaint with prejudice, arguing that Appellant's complaint was legally insufficient and should be considered a sham pleading. The former husband further argued that Appellant's claims were barred by either the statute of limitations, collateral estoppel, or res judicata. He further argued that Appellant could not assert entitlement to certain property to pay a judgment which had not, at the date of his motion, been entered as a final judgment subject to execution, and that any transfers of real property and to whom they may have been made is irrelevant and immaterial unless they violate an existing court order, which Appellant had failed to plead. Additionally, the former husband sought attorney's fees pursuant to section 57.105, Florida Statutes, and Florida Civil Rule of Procedure 1.420(d).

         Subsequently, all of the co-defendants filed their respective motions to dismiss, adopting the arguments of the former husband and asserting, as additional grounds, that they owed no duty to Appellant and that her complaint was premature because a final money judgment had not been entered against the former husband. Additionally, some of the co-defendants argued the suit was nothing more than a ploy to harass them or the former husband.

         After hearing all of the motions to dismiss at one time, the trial court granted them with prejudice.[1] After her motion for rehearing was denied, Appellant gave notice of appeal.

         Appellate Analysis

         "The standard of review of orders granting motions to dismiss with prejudice is de novo." Garnac Grain Co., Inc. v. Mejia, 962 So.2d 408, 410 (Fla. 4th DCA 2007) (quoting Kreizinger, P.A. v. Schlesinger, P.A., 925 So.2d 431, 432 (Fla. 4th DCA 2006)). Our analysis in this case is confined to review of the four corners of Appellant's complaint and of the written order dismissing the complaint with prejudice, which is silent as to the ...

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