final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Joseph George Marx, Judge; L.T. Case No.
Anthony Brown of Lavalle, Brown & Ronan, P.A., Boca
Raton, for appellant.
P. Ponzoli, Jr., of GrayRobinson, P.A., West Palm Beach, for
Bouin appeals the trial court's dismissal of his
seven-count complaint against his wife, Gina
DiSabatino. 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.
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).
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)).
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
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
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).
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 ...