FREDERIC BOUIN v. GINA DISABATINO
250 So. 3d 168
Fla. Dist. Ct. App.2018Background
- Plaintiff-appellant Frederic Bouin filed a seven-count civil complaint against his wife, Gina DiSabatino, alleging forgery, theft/misappropriation of funds and credit cards, interference with a mortgage application, and related torts while a dissolution-of-marriage proceeding was pending before another judge.
- Counts included intentional infliction of emotional distress, tortious interference, breach of contract, conversion, civil theft, violation of civil remedies for criminal practices, and defamation by implication.
- The trial court dismissed the complaint with prejudice, concluding the claims were time-barred, failed to state a cause of action, and were within the exclusive jurisdiction of the family court handling the dissolution (relying on Beers).
- At the dismissal hearing the court acknowledged that dismissal on statute-of-limitations grounds should be without prejudice and that failure-to-state-a-claim generally does not warrant a dismissal with prejudice.
- The Fourth District reviewed de novo, holding a motion-to-dismiss should be decided on the complaint’s four corners and that factual determinations (e.g., whether assets were marital or nonmarital) are inappropriate at that stage.
- The court found Bouin had a right to amend (no responsive pleading had been filed) and reversed the dismissal with prejudice, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly dismissed the complaint with prejudice | Bouin argued the complaint states viable claims and, if necessary, he should be allowed to amend | DiSabatino argued the claims were time-barred, failed to state causes of action, and were within the exclusive jurisdiction of the family court | Reversed: dismissal with prejudice was improper; factual issues about marital vs nonmarital assets cannot be resolved on a motion to dismiss and Bouin should have opportunity to amend |
| Whether claims arising during marriage must be pursued only in dissolution proceedings | Bouin contended interspousal torts may be brought separately | DiSabatino relied on Beers and §61.075 to argue dissipation/dissolution statute is exclusive for marital-asset dissipation | Court: interspousal claims can be brought either in dissolution or separate action; exclusivity depends on factual classification of assets (marital vs nonmarital), which cannot be decided on dismissal motion |
| Whether the statute-of-limitations dismissal required dismissal with prejudice | Bouin maintained statute-of-limitations defects could be cured or clarified by amendment | DiSabatino maintained claims were time-barred | Court: noted at hearing that statute-of-limitations dismissal should be without prejudice and affirmed that dismissal with prejudice was not appropriate here |
| Whether plaintiff was entitled to amend before dismissal | Bouin relied on Fla. R. Civ. P. 1.190(a) and precedent granting one amendment as of course | DiSabatino implicitly opposed amendment by seeking dismissal with prejudice | Court: plaintiff had right to amend once before a responsive pleading and leave to amend should be freely given; dismissal with prejudice was error |
Key Cases Cited
- Beers v. Beers, 724 So. 2d 109 (Fla. 5th DCA 1998) (dissipation-of-marital-property remedy under dissolution statute and discussion of when separate interspousal suits are improper)
- Waite v. Waite, 618 So. 2d 1360 (Fla. 1993) (abrogation of interspousal immunity for torts)
- Snedaker v. Snedaker, 660 So. 2d 1070 (Fla. 4th DCA 1995) (allowing tort claims to be brought within dissolution proceedings)
- Hogan v. Tavzel, 660 So. 2d 350 (Fla. 5th DCA 1995) (allowing interspousal tort claims post-dissolution)
- Demont v. Demont, 67 So. 3d 1096 (Fla. 1st DCA 2011) (initial determination of marital vs nonmarital character is a fact-finding process)
- Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005) (plaintiff may amend complaint once as a matter of course before a responsive pleading)
- Preudhomme v. Bailey, 211 So. 3d 127 (Fla. 4th DCA 2017) (standard of review for motions to dismiss with prejudice is de novo)