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Bouin v. Disabatino

Florida Court of Appeals, Fourth District

June 13, 2018


         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Joseph George Marx, Judge; L.T. Case No. 502017CA001113XXXXMBAN.

          Anthony Brown of Lavalle, Brown & Ronan, P.A., Boca Raton, for appellant.

          Ronald P. Ponzoli, Jr., of GrayRobinson, P.A., West Palm Beach, for appellee.

          Klingensmith, J.

         Frederic Bouin appeals the trial court's dismissal of his seven-count complaint against his wife, Gina DiSabatino.[1] Bouin filed his complaint while a separate dissolution of marriage proceeding was pending before another judge. For the reasons set forth below, we find that it was error for the trial court to dismiss Bouin's complaint with prejudice without allowing for leave to amend. Therefore, we reverse.

         Among the many allegations in his complaint, Bouin claimed DiSabatino had forged checks from his bank account, stolen his credit cards out of the mail, and transferred money to herself and her mother from Bouin's bank account without his permission. He also asserted that DiSabatino's actions caused him to be rejected for a $2, 500, 000 mortgage he sought for purchasing a house. The trial court ruled that all counts of the complaint were not only barred by the applicable statutes of limitations, but also failed to state a cause of action. Additionally, the court found that since the claims arose from acts that occurred during the parties' marriage, they were under the exclusive jurisdiction of the family court handling the dissolution proceeding. Consequently, it dismissed the complaint with prejudice pursuant to Beers v. Beers, 724 So.2d 109 (Fla. 5th DCA 1998).

         "'The standard of review of orders granting motions to dismiss with prejudice is de novo.'" Preudhomme v. Bailey, 211 So.3d 127, 130 (Fla. 4th DCA 2017) (quoting Garnac Grain Co. v. Mejia, 962 So.2d 408, 410 (Fla. 4th DCA 2007)).

         "The purpose of a motion to dismiss is 'to test the legal sufficiency of the complaint, not to determine factual issues.'" Rolle v. Cold Stone Creamery, Inc., 212 So.3d 1073, 1076 (Fla. 3d DCA 2017) (quoting The Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla. 2006)). "When determining the merits of a motion to dismiss, a court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true, with all reasonable inferences drawn in favor of the pleader." Regis Ins. Co. v. Miami Mgmt., Inc., 902 So.2d 966, 968 (Fla. 4th DCA 2005).

         During argument by counsel on the motion, the trial court recognized that if it were to dismiss the complaint based solely on the statute of limitations, it should be without prejudice. Specifically, the court commented at the hearing that Bouin could likely "clean up his counts and maneuver . . . differently" to comply with them. Ultimately, the trial court dismissed the complaint with prejudice, but the court correctly noted in its order that the failure to state a cause of action generally does not result in a dismissal with prejudice. Therefore, the trial court's dismissal with prejudice appears to be based solely on the court's application of Beers regarding the nonviability of maintaining a separate interspousal action outside of the dissolution proceedings.

         "In general, there are two aspects to a court's subject matter jurisdiction. The first concept 'concerns the power of the trial court to deal with the class of cases to which a particular case belongs.'" Garcia v. Stewart, 906 So.2d 1117, 1122 (Fla. 4th DCA 2005) (quoting Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 801 n.3 (Fla. 2003)). "The second aspect requires that a court's jurisdiction be lawfully invoked by the filing of a proper pleading." Id. "Whether a court has subject matter jurisdiction is a question of law reviewed de novo." Sanchez v. Fernandez, 915 So.2d 192, 192 (Fla. 4th DCA 2005).

         As to whether separate interspousal actions may be brought outside of the dissolution case in a collateral proceeding, this court has observed:

In Waite v. Waite, 618 So.2d 1360 (Fla. 1993), the court abrogated the doctrine of interspousal immunity for all torts, thereby allowing spouses to sue one another for damages from tortious acts. The opened door raises an issue as to when such a suit may be brought. In Snedaker v. Snedaker, 660 So.2d 1070 (Fla. 4th DCA 1995), we allowed the tort claim to be brought within the dissolution of marriage action. In Hogan v. Tavzel, 660 So.2d 350 (Fla. 5th DCA 1995), the Fifth District allowed the claim to be brought three years after the marriage had been dissolved. In short, under Florida law an interspousal tort claim ...

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