          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-336
                  _____________________________

KRISTOPHER DARWIN ROBINSON,

    Appellant,

    v.

SABRINA K. ROBINSON,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Robert M. Dees, Judge.

                          March 15, 2018


           ON MOTION FOR REHEARING, CLARIFICATION,
                   AND REHEARING EN BANC

    Appellant’s motion for rehearing, clarification, and rehearing
en banc is denied, but the opinion issued on January 3, 2018, is
withdrawn and the following opinion is substituted in its place:

PER CURIAM.

     Appellant, the former husband, seeks review of the order
dismissing the suit he filed against Appellee, the former wife, to
set aside the mediated settlement and consent final judgment in
the parties’ divorce proceeding and to recover monetary damages
from the former wife for civil theft. We reverse for the reasons that
follow.
     The former wife allegedly obtained photos of the former
husband and his mistress that were “of a private nature” and then
used the photos as leverage in the parties’ divorce proceeding to
coerce the former husband to enter into a mediated settlement that
was favorable to her.       The terms of the settlement were
incorporated into a consent final judgment that was entered by the
circuit court in Clay County in January 2014.

     More than 2½ years later, after several unsuccessful attempts
to modify the consent final judgment, 1 the former husband filed a
three-count complaint against the former wife in the circuit court
in Duval County based on her “strong-arm and extortionate
tactics” in the divorce proceeding. Count I sought to rescind the
settlement “due to coercion and duress”; count II sought to set
aside the consent final judgment “due to fraud on the court”; and
count III sought damages under the civil theft statute 2 stemming
primarily from the former wife’s having wrongfully obtained and
used the photos of the former husband and his mistress to
negotiate the favorable-to-her financial settlement of the parties’
divorce case.

     The former wife filed a motion to dismiss for improper venue
or, alternatively, to transfer the case to Clay County where
proceedings to modify the consent final judgment were ongoing.
The former husband responded that venue was proper in Duval
County because both parties now reside there, and he argued that
the case should not be transferred to Clay County because, under
Gordon v. Gordon, 625 So. 2d 59 (Fla. 4th DCA 1993), an
independent action was required to set aside the consent final


    1  See Robinson v. Robinson, 219 So. 3d 933 (Fla. 1st DCA
2017) (affirming post-dissolution order insofar as it denied former
husband’s motion to eliminate his alimony obligation, but
reversing order insofar as it reduced his child support obligation);
Robinson v. Robinson, 169 So. 3d 1168 (Fla. 1st DCA 2015) (per
curiam affirmance of post-dissolution order denying former
husband’s supplemental petition to modify parenting plan).
    2   See § 772.11, Fla. Stat.

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judgment for fraud upon the court because it had been more than
a year since the judgment was entered.

      The trial court granted the motion to dismiss, reasoning that
“it is apparent that the same issues raised in this case are also
being litigated in [the Clay County case].” The court reiterated
this point in the order denying the former husband’s motion for
rehearing, explaining that “the issues raised in [the former
husband]’s complaint in this case are and should be litigated in the
Clay County case.” The court thereafter entered a final order
dismissing this case with prejudice.

    This appeal followed.

     Based on our de novo review, 3 we agree with the former
husband that the trial court should not have dismissed the case
with prejudice based on the venue motion filed by the former wife.
Venue was proper in Duval County because both parties reside
there, see § 47.011, Fla. Stat., and transfer—not dismissal—is the
proper remedy where the trial court determines that there is a
more convenient forum, see § 47.122, Fla. Stat. Moreover,
abatement—not dismissal—would have been the proper remedy if
the trial court was correct in concluding that the issues raised in
this case were the same as those being litigated in the earlier-filed
Clay County case. See Dhondy v. Schimpeler, 528 So. 2d 403 (Fla.
3d DCA 1988).

     Although the trial court’s legal reasoning was incorrect, our
original opinion 4 nevertheless affirmed the dismissal order under
the “tipsy coachman” doctrine. See Dade County School Board v.
Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) (“[I]f a trial
court reaches the right result, but for the wrong reasons, it will be

    3  See City of Gainesville v. Dep’t of Transp., 778 So. 2d 519,
522 (Fla. 1st DCA 2001) (“Whether a complaint should be
dismissed is a question of law. On appeal of a judgment granting a
motion to dismiss, the standard of review is de novo.”).

    4 Robinson v. Robinson, 43 Fla. L. Weekly D102, 2018 WL
283692 (Fla. 1st DCA Jan. 3, 2018).

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upheld if there is any basis which would support the judgment in
the record.”). We now conclude, however, that the potential
grounds for dismissal discussed in our original opinion should be
addressed by the trial court in the first instance if raised by a
proper motion.

     Accordingly, the dismissal order is reversed and the case is
remanded to the trial court for further proceedings consistent with
this opinion.

    REVERSED and REMANDED.

LEWIS and WINSOR, JJ., concur. WETHERELL, J., concurs with
opinion.

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WETHERELL, J., concurring.

     I join the revised opinion because, unfortunately, the “tipsy
coachman” doctrine cannot be stretched far enough to affirm the
dismissal of the former husband’s suit in its entirety. However,
because the suit—which comes on the heels of the former
husband’s two prior unsuccessful attempts to obtain relief from his
obligations under the consent final judgment—appears to be
nothing more than an untimely and meritless 1 case of “buyer’s

    1  The count seeking to set aside the consent final judgment
based on fraud (count II) appears to be time-barred because it
alleges intrinsic fraud that had to be raised within one year after
the judgment was entered. See Cerniglia v. Cerniglia, 679 So. 2d
1160, 1163 (Fla. 1996) (holding that “allegations of coercion and
duress . . . constitute intrinsic fraud and [a]re thus subject to the
one-year limitation for seeking relief from the final judgment”);
Champion v. McDaniel, 740 So. 2d 17, 19 (Fla. 1st DCA 1999)
(reversing order setting aside marital settlement agreement based
on motion for relief from judgment that was filed more than a year
after entry of the judgment incorporating the agreement because
the claims raised in the motion—which included a claim that the
wife “pressured [the husband] into signing the agreement after
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remorse,” the trial court should consider imposing sanctions on the
former husband under section 57.105, Florida Statutes, if and
when the suit is dismissed on remand.


                  _____________________________


Kristopher D. Robinson of Robinson Collins P.L., Jacksonville, for
Appellant.



confronting him with his admitted adultery”—did not amount to
fraud on the court but rather merely showed that the wife “was in
a superior bargaining position to [the husband]”). If the fraud
count is dismissed and the consent final judgment remains in
effect, it does not appear that the former husband will be able to
obtain any meaningful relief by setting aside the mediation
agreement (count II) because the agreement was incorporated
into—and its terms are now part of—the judgment. The civil theft
count (count III) appears to be negated in all respects except one
by the mutual release of “any claims, damages or causes of action”
contained in the consent final judgment attached to the complaint.
See Striton Properties, Inc. v. City of Jacksonville Beach, 533 So.
2d 1174, 1179 (Fla. 1st DCA 1988) (“Under Florida law, if an
attached document negates a pleader's cause of action, the plain
language of the document will control and may be the basis for a
motion to dismiss.”). The only aspect of the civil theft count that
does not appear to be covered by the release is the claim that the
former wife used the former husband’s credit card without his
authorization after the consent final judgment was entered (see
Complaint at ¶ 46), but if that claim had merit it presumably
would have been raised through a motion for contempt in one of
the prior post-dissolution proceedings since the unauthorized use
of the credit card was alleged to be “in direct violation of paragraph
11 of the [consent final judgment].”




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J. Stephen Alexander of Alexander Law Firm, LLC, St. Augustine,
for Appellee.




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