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Herrera-Zenil v. Tome

Florida Court of Appeals, Third District

November 8, 2017

Victor Herrera-Zenil, et al., Appellants,
v.
Carlos Luis Vasallo Tome, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 14-1021, Robert J. Luck, Judge.

          Fors | Attorneys at Law and Jorge L. Fors, Jr., for appellants.

          Dorta & Ortega, Nicole Ruesca, Omar Ortega and Aileen J. Esteban, for appellees.

          Before LAGOA, EMAS and SCALES, JJ.

          EMAS, J.

         Carlos Luis Vasallo Tome, Mi Cine USA, Cine Nostalgia, Inc., and Cine Estelar, Inc., are defendants in the action below. Defendants filed a motion to dismiss the operative complaint of plaintiffs Victor Herrera-Zenil and Canal Mi Cine S.A. de C.V., on forum non conveniens grounds.

         The trial court granted the motion and entered an order dismissing the complaint. Plaintiffs have appealed that order, which we review for an abuse of discretion. Kinney Sys. Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla. 1996); Rolls-Royce, Inc. v. Garcia, 77 So.3d 855 (Fla. 3d DCA 2012). Upon our review and consideration of the entire record, we affirm.

         The Florida Supreme Court, "out of growing concern that Florida was becoming a 'courthouse for the world' . . . adopted the federal forum non conveniens standard" in Kinney. Hilton Int'l Co. v. Carrillo, 971 So.2d 1001, 1004 (Fla. 3d DCA 2008). Under this standard, a trial court presented with a forum non conveniens motion must consider: 1) whether an adequate alternative forum exists which has jurisdiction over the case; 2) all relevant private interests, keeping in mind the "strong presumption against disturbing plaintiffs' initial forum choice"; 3) if the balance of private interests is at or near equipoise, whether relevant public interests tip the scale in favor of another forum; and 4) if the balance favors an alternative forum, the court must ensure that plaintiffs can bring suit in the alternative forum. Kinney, 674 So.2d at 90. See also Fla. R. Civ. P. 1.061(a)(1)-(4).

         The trial court conducted an evidentiary hearing over a period of three days, and live testimony was presented during two of those days. Following the hearing, and argument of counsel, the trial court entered a detailed, thirteen-page order which set forth its analysis of each of the Kinney factors. The order also addressed the evidence supporting the trial court's determinations that: Mexico was an available and adequate alternative forum; the private interest factors between litigating in Florida or Mexico were in equipoise; the public interest factors weigh in favor of Mexico as the forum for the action; the plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.[1]

         Plaintiffs contend that there was no evidence to support the trial court's finding that Mexico was an available and adequate alternative forum. We do not agree. The defendants' Mexican legal expert provided, by affidavit and sworn testimony, sufficient evidence to establish that Mexico will provide an adequate alternative forum for the causes of action asserted in the operative complaint. Appellees presented no expert testimony to rebut or contradict defendants' evidence in this regard.[2]

         In addition, defendants presented evidence of ongoing parallel litigation in Mexico between Mi Cine, Herrera and Vasallo on the same issues raised by plaintiffs in their complaint. There was no abuse of discretion in the trial court's determination that Mexico is an available and adequate alternative forum.

         We reject plaintiffs' contention that defendant Vasallo waived any forum non conveniens challenge, and that the trial court therefore necessarily abused its discretion in granting the motion to dismiss on those grounds. A proper reading of the record indicates that, although Vasallo's counsel conceded that Vasallo, personally, was not going to challenge forum non conveniens as to himself, counsel made it clear that there was no waiver of the forum non conveniens challenge raised on behalf of the defendant corporations (Mi Cine USA, Cine Nostalgia, Inc., Cine Estelar, Inc.). Thus, the trial court properly analyzed the Kinney factors as to the forum non conveniens challenge pressed by the corporate defendants. And, in fact, the trial court considered, as one of the private interest factors, the fact of Vasallo's waiver of his own personal forum non conveniens challenge. Nevertheless, the trial court determined that the private interest factors were in equipoise, and we find no abuse of discretion in that determination.[3]

         We find the other issues raised by plaintiffs are without merit and ...


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