Preudhomme v. Bailey

• Decision Date: 01 February 2017
• Docket Number: No. 4D15–2831,4D15–2831
• Citation: 211 So.3d 127
• Parties: Arlene PREUDHOMME, Appellant, v. Garth F. BAILEY, Patricia Moss–Solomon, Hyacinth L. Bailey, individually and as Trustee, Damian Moss–Solomon and D and R Group Limited LLC, a Delaware LLC, Appellees.
• Court: Florida District Court of Appeals

211 So.3d 127

Arlene PREUDHOMME, Appellant,

v.Garth F. BAILEY, Patricia Moss–Solomon, Hyacinth L. Bailey, individually and as Trustee, Damian Moss–Solomon and D and R Group Limited LLC, a Delaware LLC, Appellees.

No. 4D15–2831

District Court of Appeal of Florida, Fourth District.

[February 1, 2017]

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 trial court's reasoning or basis for ruling, with no transcript of the hearing or answer brief being filed.

Appellant argues that the trial court erred by dismissing her complaint with prejudice without stating a reason and without giving her an opportunity to amend. First, Appellant argues that if her complaint failed to state a proper cause of action, she was entitled to have leave to amend since her complaint had not been previously amended. Second, Appellant contends the trial court failed to consider the requisite Kozel² factors prior to dismissing her complaint. Next, Appellant argues that the trial court could not consider assertions for dismissal based on res judicata and collateral estoppel, as such are affirmative defenses required to be raised in an answer. Appellant maintains that allegations about the details of the dissolution of marriage case did not appear on the face of her complaint and that, therefore, the trial court could not go beyond the four corners of her complaint and dismiss her action based on either of those defenses. Appellant contends that her suit below is a separate case "to collect judgments" she was awarded by the trial court in the dissolution of marriage proceeding and that it is not a re-litigation of the dissolution of marriage case or a veiled attempt to harass the appellees. Additionally, she argues that, by dismissing her complaint, the trial court improperly disabled her claims. Finally, Appellant argues that the statute of limitations did not apply to bar her claims against the appellees.

As mentioned above, a transcript of the hearing on the motions to dismiss has not been included in the record on appeal and the trial court did not include its basis or reason for dismissing Appellant's complaint with prejudice. We also do not have the benefit of an answer brief on appeal. However, whatever the trial court's reasoning: if there is any theory or principle of law in the record which would support the ruling, it will be upheld. See Dade Cty. Sch. Bd. v. Radio Station WQBA , 731 So.2d 638, 644 (Fla. 1999).

With regard to the arguments in the motions to dismiss that Appellant's complaint failed to properly state her causes of action with specificity against each of the appellees, Appellant is correct that this alone would not warrant dismissal with prejudice. "[A]s a general rule, refusal to allow amendment constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile." Yun Enter., Ltd. v. Graziani , 840 So.2d 420, 423 (Fla. 5th DCA 2003). In this case, it is not clear from the record that such prejudice would arise or that amendment would be futile to set forth more specific elements to Appellant's claims. There has also been no abuse of the privilege in this case where the complaint had not been previously amended. Thus, as an initial matter, dismissal with prejudice was not proper for failure to state a cause of action.

As Appellant correctly argues, if the trial court dismissed the case with prejudice as a sanction, the dismissal was error. See Chappelle v. S. Florida Guardianship Program, Inc. , 169 So.3d 291, 294 (Fla. 4th DCA 2015) (citation omitted) (quoting Bennett ex rel. Bennett v. Tenet St. Mary's, Inc. , 67 So.3d 422, 426 (Fla. 4th DCA 2011) ) ("Before a court may dismiss a cause as a sanction, it must first consider the six factors delineated in Kozel v. Ostendorf , 629 So.2d 817 (Fla. 1993), and set forth explicit findings of fact in the order that imposes the sanction of dismissal."); Ham v. Dunmire , 891 So.2d 492, 495 (Fla. 2004) (holding that dismissal as a sanction for a discovery violation is "an abuse of discretion where the trial court fails to make express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard").

Alternatively, if the complaint was dismissed as a sham pleading pursuant to Florida Rule of Procedure 1.150, such was also error. "A pleading is considered a sham only ‘when it is palpably or inherently false, and from the plain or conceded facts in the case, must have been known to the party interposing it to be untrue.’ " Bornstein v. Marcus , 169 So.3d 1239, 1242 (Fla. 4th DCA 2015) (quoting Rhea v. Hackney , 117 Fla. 62, 157 So. 190, 193 (1934) ). In other words, a sham pleading is one that is "good on its face but absolutely false in fact." Id . (quoting Rhea , 157 So. at 194 ). In this case, the former husband's motion to dismiss fails to identify any inherently false facts stated in the complaint, nor did his motion demonstrate that any such plain or conceded facts must have been known to Appellant to be untrue. Instead, his motion simply asserted that the complaint "merely alleges conclusions, allegations, and innuendo and same is legally insufficient and should be considered as a sham pleading and, therefore, must be dismissed with prejudice." The motions...