Third District Court of Appeal
State of Florida
Opinion filed April 26, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1560
Lower Tribunal No. 20-21229
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Mary Ann James de Holguin,
Appellant,
vs.
Camila Holguin Godin, et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Samantha Ruiz Cohen, Judge.
Holland & Knight LLP, Rodolfo Sorondo, Jr., and Rebecca M.
Plasencia, for appellant.
Shutts & Bowen LLP, and Jamie B. Wasserman (Fort Lauderdale);
Shutts & Bowen LLP, Steven M. Ebner and Julissa Rodriguez, for appellees.
Before HENDON, MILLER and GORDO, JJ.
GORDO, J.
Mary Ann James de Holguin, the decedent’s wife, (the “Wife”) appeals
an order dismissing her amended complaint against the decedent’s daughter
Camila Holguin Godin (the “Daughter”), as an individual and representative
of the estate of Rodrigo Holguin Lourido (the “Decedent”), and Majaroho
LLC, for forum non conveniens. We have jurisdiction. Fla. R. App. P.
9.130(a)(3)(C)(viii). Finding no abuse of discretion in trial court’s ruling, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Wife and the Decedent were in a long-term marriage and
remained married until his death on December 29, 2019. The Decedent had
three children from a prior marriage, including the Daughter. The couple
were residents of Colombia who lived on their property in Florida for a few
months of the year. During the course of the marriage the Wife and
Decedent entered into multiple agreements regarding the dispensation of
their property, including a “Memorandum of Understanding” (“MOU”). The
MOU, which is written in Spanish, was signed and executed at the office of
Holland & Knight in Bogota, Colombia on October 7, 2019. The MOU deals
primarily with the couple’s Colombian assets and unequivocally mandates
its terms are governed by Colombian law.
In June 2020, the Daughter commenced a probate proceeding in
Miami-Dade. The Daughter’s petition noted there was already ongoing
probate proceedings in Colombia. The Wife filed objections to the Florida
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proceedings. Five months later, the Wife filed the instant independent
creditor action, raising claims against the Daughter and Majaroho relating to
the MOU. The Daughter and Majaroho moved to dismiss for forum non
conveniens arguing Colombia was the more appropriate forum and the
ongoing probate case in Colombia centered on many of the same issues
raised by the pleadings filed in this action.
The trial court held a full evidentiary hearing and—after applying the
factors set forth in Kinney Sys., Inc. v. Cont’l Ins. Co.,
674 So. 2d 86, 94 (Fla.
1996)—granted the motion to dismiss finding that Colombia was the
appropriate forum for these claims and dismissal was warranted under forum
non conveniens. This appeal followed.
LEGAL ANALYSIS
A trial court’s decision to grant or deny a motion to dismiss based on
forum non conveniens grounds is “subject to review for abuse of discretion.”
Kinney,
674 So. 2d at 94. “[T]he trial judge’s findings of fact are clothed with
a presumption of correctness on appeal, and these findings will not be
disturbed unless the appellant can demonstrate that they are clearly
erroneous.” Universal Beverages Holdings, Inc. v. Merkin,
902 So. 2d 288,
290 (Fla. 3d DCA 2005).
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In Kinney, the Florida Supreme Court set forth the four-step test to
address forum non conveniens challenges. See Kinney,
674 So. 2d at 90
(quoting Pain v. United Techs. Corp.,
637 F.2d 775, 784–85 (D.C. Cir.
1980)). This test was later codified in Florida Rule of Civil Procedure
1.061(a).1 The burden of persuasion for each factor is on the moving party.
See Cardoso v. FPB Bank,
879 So. 2d 1247, 1250 (Fla. 3d DCA 2004).
Here, the trial court properly addressed all four Kinney factors, and we
find no abuse of discretion in the trial court’s determination that the Daughter
and Majaroho provided sufficient competent, substantial evidence to show
that Colombia was an adequate alternative forum. See Abeid-Saba v.
1
Florida Rule of Civil Procedure 1.061 provides:
(a) Grounds for Dismissal. An action may be
dismissed on the ground that a satisfactory remedy
may be more conveniently sought in a jurisdiction
other than Florida when:
(1) the trial court finds that an adequate alternate
forum exists which possesses jurisdiction over the
whole case, including all of the parties;
(2) the trial court finds that all relevant factors of
private interest favor the alternate forum, weighing in
the balance a strong presumption against disturbing
plaintiffs’ initial forum choice;
(3) if the balance of private interests is at or near
equipoise, the court further finds that factors of public
interest tip the balance in favor of trial in the alternate
forum; and
(4) the trial judge ensures that plaintiffs can reinstate
their suit in the alternate forum without undue
inconvenience or prejudice.
4
Carnival Corp.,
184 So. 3d 593, 600 (Fla. 3d DCA 2016) (“An alternative
forum is adequate if it provides for litigation of the subject matter of the
dispute and potentially offers redress for plaintiffs’ injuries.” (quoting King v.
Cessna Aircraft Co.,
562 F.3d 1374, 1382 (11th Cir. 2009)); GLF Constr.
Corp. v. Credinform Int’l, S.A.,
225 So. 3d 377, 381 (Fla. 3d DCA 2017)
(finding no abuse of discretion where “review of the record, including the
transcript of the hearing, establishes that the trial court conducted a proper,
adequate analysis” of the Kinney factors).
Affirmed.
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