FREDERIC BOUIN v. GINA DISABATINO , 250 So. 3d 168 ( 2018 )


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  •         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    FREDERIC BOUIN,
    Appellant,
    v.
    GINA DISABATINO,
    Appellee.
    No. 4D17-2250
    [June 13, 2018]
    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
    1The complaint contained the following separate counts: Intentional Infliction of
    Emotional Distress; Tortious Interference with a Business Relationship; Breach
    of Contract; Conversion; Civil Theft; Violation of the Civil Remedies for Criminal
    Practices Act; and Defamation by Implication.
    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
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    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 may be brought in the dissolution of
    marriage action, or it may be brought in a separate action not
    associated with a dissolution of marriage action.
    San Pedro v. San Pedro, 
    910 So. 2d 426
    , 428 (Fla. 4th DCA 2005).
    However, “[w]here no specific transaction or agreement exists between
    the spouses, the dissolution of marriage statute, specifically, subsection
    61.075(1), provides the exclusive remedy where one’s spouse has
    intentionally dissipated marital property during the marriage.” 
    Beers, 724 So. 2d at 117
    (emphasis added); accord Doctor Rooter Supply & Serv. v.
    McVay, 
    226 So. 3d 1068
    , 1073 (Fla. 5th DCA 2017). As it relates to claims
    brought in a collateral proceeding involving one spouse’s misappropriation
    of the other’s nonmarital assets, the Fifth District in Beers stated:
    We do not address the propriety of the joinder of a separate
    count for conversion or fraudulent dissipation of nonmarital
    assets. See, e.g., Delahunty v. Massachusetts Mut. Life Ins.
    Co., 
    236 Conn. 582
    , 
    674 A.2d 1290
    (Conn. 1996), a decision
    cited by the former wife. Our decision also does not conflict
    with Snedaker v. Snedaker, 
    660 So. 2d 1070
    (Fla. 4th DCA
    1995), which approved the pleading of a battery claim as a
    separate count in a dissolution action.
    
    Beers, 724 So. 2d at 117
    n.6.
    We understand the trial court’s concerns regarding the prospect that
    maintaining a separate suit in a collateral proceeding might be considered
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    judge shopping. Pursuing such an action for interspousal claims outside
    of the dissolution proceeding would provide an additional forum, and
    perhaps an even more contentious environment, to those spouses or ex-
    spouses eager to prolong their conflict. Nonetheless, whether Bouin’s
    complaint could be brought separately, or was exclusively within the
    jurisdiction of the dissolution case, depended on the trial court making
    findings of fact as to whether the claims involved marital or nonmarital
    property. See Demont v. Demont, 
    67 So. 3d 1096
    , 1104 (Fla. 1st DCA 2011)
    (“The initial determination as to whether an asset is marital or non-marital
    is a fact-finding process.”).
    While it is true that the remedy for dissipation of marital assets lies via
    section 61.075(1), see 
    Beers, 724 So. 2d at 117
    , there were no allegations
    within the “four corners” of the complaint, or attached thereto, that
    indisputably classified the property, monies, or assets in question as
    marital. A motion to dismiss analyzes questions of law to test the legal
    sufficiency of a complaint, not the facts. See 
    Rolle, 212 So. 3d at 1076
    .
    The trial court’s determination that this case dealt with assets of the
    marital estate was fundamentally a fact-finding endeavor.              See §
    61.075(6)(a), (b)(1); 
    Demont, 67 So. 3d at 1104
    . This was improper at the
    motion to dismiss stage.
    Moreover, Bouin should have been provided the opportunity to amend
    his complaint at least once as a matter of course since no responsive
    pleading had been filed. See Fla. R. Civ. P. 1.190(a) (“A party may amend
    a pleading once as a matter of course at any time before a responsive
    pleading is served . . . . Leave of court shall be given freely when justice
    so requires.”); Boca Burger, Inc. v. Forum, 
    912 So. 2d 561
    , 567 (Fla. 2005)
    (“[T]he first sentence of the rule grants plaintiffs an automatic right to
    amend the complaint once before a responsive pleading is served.”). We
    find that the trial court erred when it dismissed Bouin’s complaint with
    prejudice.
    Reversed and remanded.
    DAMOORGIAN and FORST, JJ., concur.
    *         *         *
    Not final until disposition of timely filed motion for rehearing.
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