Shoemaker v. Shoemaker

District Court of Appeal of Florida

Shoemaker v. Shoemaker

523 So. 2d 178, 13 Fla. L. Weekly 868, 1988 Fla. App. LEXIS 1341, 1988 WL 28306

CourtDistrict Court of Appeal of Florida

DecidedApril 5, 1988

DocketNo. 87-2493

StatusPublished

Cited by3 cases

This text of 523 So. 2d 178 (Shoemaker v. Shoemaker) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Shoemaker v. Shoemaker, 523 So. 2d 178, 13 Fla. L. Weekly 868, 1988 Fla. App. LEXIS 1341, 1988 WL 28306 (Fla. Ct. App. 1988).

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Opinion

PER CURIAM.

As the result of a slip and fall accident in defendant-appellee’s home, plaintiff-appellant brought a negligence action. After suit was filed, the parties were married. The trial judge granted defendant’s motion for summary judgment and dismissed the case with prejudice, thus barring plaintiff’s right to ever bring an action on the same claim.

We affirm the dismissal based as it was on the doctrine of interspousal immunity. Snowten v. United States Fidelity & Guar. Co., 475 So.2d 1211 (Fla.1985); Raisen v. Raisen, 379 So.2d 352 (Fla.1979), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980). However, we hold that the dismissal should have been without prejudice. The cases of Gaston v. Pittman, 224 So.2d 326 (Fla.1969) and Chatmon v. Woodard, 492 So.2d 1115 (Fla. 3d DCA 1986) control here. As this court held in Chatmon, “[A]bate[ment] of the cause of action pending the possible termination of the marriage of the parties by dissolution or death” is the proper disposition of a case such as this where the cause of action accrued before marriage. Chatmon, 492 So.2d at 1116.

Affirmed and remanded with directions to enter an order of dismissal without prejudice.

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PER CURIAM.

As the result of a slip and fall accident in defendant-appellee’s home, plaintiff-appellant brought a negligence action. After suit was filed, the parties were married. The trial judge granted defendant’s motion for summary judgment and dismissed the case with prejudice, thus barring plaintiff’s right to ever bring an action on the same claim.

We affirm the dismissal based as it was on the doctrine of interspousal immunity. Snowten v. United States Fidelity & Guar. Co., 475 So.2d 1211 (Fla.1985); Raisen v. Raisen, 379 So.2d 352 (Fla.1979), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980). However, we hold that the dismissal should have been without prejudice. The cases of Gaston v. Pittman, 224 So.2d 326 (Fla.1969) and Chatmon v. Woodard, 492 So.2d 1115 (Fla. 3d DCA 1986) control here. As this court held in Chatmon, “[A]bate[ment] of the cause of action pending the possible termination of the marriage of the parties by dissolution or death” is the proper disposition of a case such as this where the cause of action accrued before marriage. Chatmon, 492 So.2d at 1116.

Affirmed and remanded with directions to enter an order of dismissal without prejudice.

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523 So. 2d 178, 13 Fla. L. Weekly 868, 1988 Fla. App. LEXIS 1341, 1988 WL 28306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shoemaker-v-shoemaker-fladistctapp-1988.

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