Cellnet 7, Inc. v. Lainez , 2017 Fla. App. LEXIS 3789 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed March 22, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1373
Lower Tribunal No. 14-27870
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Cellnet 7, Inc., and Celltech 7, Inc.,
Appellants,
vs.
Adolfo Lainez,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Antonio Marin, Judge.
Maspons Sellek Jacobs and Suzette L. Russomanno, for appellants.
Ramiro Christen Areces, for appellee.
Before SALTER, EMAS and FERNANDEZ, JJ.
SALTER, J.
Cellnet 7, Inc., and Celltech 7, Inc. (together, “Cellnet”), appeal a non-final
order granting the appellee Adolfo Lainez’s motion to dismiss the complaint on the
basis of forum non conveniens. We reverse.
Proceedings in the Circuit Court
The Cellnet companies are Florida corporations based in Doral, Florida.
They import, export, and distribute mobile electronic devices, equipment, and
accessories. Lainez is a resident of Honduras. Cellnet’s 2014 circuit court
complaint alleged that in 2006 Lainez began purchasing phones and other
accessories from Cellnet on a wholesale basis. Lainez and Cellnet later agreed,
verbally, that Lainez would receive a three percent commission on phones and
other goods sold by Cellnet directly to one of Lainez’s customers in Honduras
(Distelsa Distribuidora De Telefonos, S.A., or “Distelsa”).
The complaint alleged that Cellnet and Lainez entered into a similar oral
agreement regarding direct sales by Cellnet to another customer of Lainez in
Honduras, Importadora y Distribuidora Telefonica, S.A., or “IDT.” Lainez was to
serve as Cellnet’s representative in Honduras for purposes of managing logistics
for sales, including return merchandise authorizations, for Cellnet’s sales to Distela
and IDT. This relationship flourished until 2010, the complaint alleged, when
market forces caused Distelsa and IDT to substantially reduce their purchases from
Cellnet.
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In 2011, Cellnet undertook a review of credit memos issued by Lainez for
over $1,000,000.00 of Cellnet merchandise allegedly based on inspections by
Lainez. As part of this review, Cellnet allegedly discovered that Lainez had
received commissions on all goods sold to Distelsa and IDT, including the goods
subject to the credit memos, and Lainez never shipped back the returned items to
Cellnet. Cellnet valued these returned goods “in excess of $200,000.00.” Cellnet
alleged that Lainez accepted mobile devices for return from Distelsa and IDT
without authorization by Cellnet, and that he refused to return those goods or repay
Cellnet for the value of those goods. Based on those allegations, Cellnet sued
Lainez for conversion of the goods that were subject to the credit memos (and
using or disposing of those goods for his own benefit), and for unjust enrichment.
Lainez responded to the complaint with a motion to dismiss for lack of
personal jurisdiction, to dismiss under principles of forum non conveniens, and
based on the statute of limitations. In support of the motion, Lainez filed an
affidavit executed in Honduras which stated that he resides in Tegucigalpa,
Honduras; that the business transactions with Cellnet, Distelsa, and IDT occurred
in Honduras; that he does not have an office or agent in Florida; and that he
performed all of his work, and received all payments, in Honduras.
Tracking some, but not all, of the elements of Florida Rule of Civil
Procedure 1.061, “Choice of Forum,” and Kinney System, Inc. v. Continental
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Insurance Co., 674 So. 2d 86 (Fla. 1996), Lainez’s affidavit also stated that he is
amenable to process in Honduras, waives any jurisdictional defenses there, and
will utilize the date of filing of the Florida complaint as the pertinent date for any
statute of limitations argument he might raise in Honduras. Finally, his affidavit
declared that the witnesses were located in Honduras, the Honduran customers
would be essential witnesses, and it would be “incredibly costly and impractical to
litigate this case in Florida.”
The trial court heard Lainez’s motions at a non-evidentiary hearing in May
2016. The court focused on the forum non conveniens arguments. Counsel for
Lainez acknowledged that he had not addressed foreign law, while counsel for
Cellnet argued that “it’s actually defendant’s burden to show that the adequate
forum is Honduras, and if in fact the Court considers that the defendant has met its
burden then the burden is shifted to plaintiff to show why Florida is the more
convenient forum.” At the conclusion of the hearing, the trial court granted the
motion to dismiss based on forum non conveniens. After the parties submitted
competing orders and the court conducted a short, additional hearing, the court
entered the dismissal order. This appeal followed.
Analysis
We review orders granting or denying a motion to dismiss based on forum
non conveniens for an abuse of discretion. Abeid-Saba v. Carnival Corp., 184 So.
4
3d 593, 599 (Fla. 3d DCA 2016); Fla. R. Civ. P. 1.061(a). In this case, we find an
abuse of discretion based on Lainez’s failure to meet his burden1 by providing any
evidence that Honduras is an adequate forum for his dispute with Cellnet. Lainez’s
affidavit regarding his amenability to service of process in Honduras, waiver of
jurisdictional defenses there, and willingness to accept the filing date of the Florida
action for purposes of any defense in Honduras based on the statute of limitations,
does not satisfy that burden.2
“[A]n alternative forum does not have to be equivalent to the chosen forum
to be adequate, but we have recognized that ‘dismissal would not be appropriate
where the alternative forum does not permit litigation of the subject matter of the
dispute.’” Cortez v. Palace Resorts, Inc., 123 So. 3d 1085, 1092 (Fla. 2013)
(quoting Kinney, 674 So. 2d at 90). As another example, “a forum may be
inadequate if it is grossly inefficient or given to extreme levels of partiality.”
Hilton Int’l Co. v. Carrillo, 971 So. 2d 1001, 1005 (Fla. 3d DCA 2008) (citing
Leon v. Millon Air, Inc., 251 F. 3d 1305, 1312 (11th Cir. 2001)). Lainez provided
no affidavit by an attorney authorized to practice in Honduras,3 live testimony to
1 Telemundo Network Grp., LLC v. Azteca Int’l Corp., 957 So. 2d 705, 709 (Fla.
3d DCA 2007).
2 These points address the availability of the alternative forum, but not its
adequacy.
3 See, e.g., Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So. 2d 912,
917 (Fla. 4th DCA 2008).
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that effect, or any other evidence to meet his burden regarding the adequacy of the
courts and legal system in Honduras, regarding his dispute with Cellnet.
While there are reported federal court decisions determining or affirming
that a Honduran court is adequate to determine a particular case,4 there appears to
be no Florida case assessing the adequacy of the courts in Honduras to hear, rule
upon, and enforce claims for conversion and unjust enrichment involving an oral
contract, filed years after the pertinent transactions (2007 to 2011, according to the
exhibits attached to the October 2014 complaint). Without any such support, this
failure of proof requires reversal of the order of dismissal. In the present case,
Lainez does not get the proverbial “second bite at the apple” to attempt to correct
the failure to prove the adequacy of the proposed alternative forum.5
The trial court also omitted any assessment of private interests—“the
general rule that there is a strong presumption against disturbing the plaintiff’s
choice of forum, and ‘this presumption can be defeated only if the relative
disadvantages to the defendant’s private interests are of sufficient weight to
4 See, e.g., Stalinski v. Bakoczy, 41 F. Supp. 2d 755, 760 (S.D. Ohio 1998).
5 A party’s failure to prove a required element of a cause of action or a motion in
which evidence may be admitted or proffered—as distinguished from a reversal
necessitated by a trial court error—ordinarily does not allow the party a new trial
or hearing on remand in order to remedy the shortcoming and try again. Persinger
v. Estate of Tibbetts, 727 So. 2d 350, 351 (Fla. 5th DCA 1999); Emerald Pointe
Prop. Owners’ Ass’n v. Commercial Construction Indus., Inc., 978 So. 2d 873,
879-80 (Fla. 4th DCA 2008).
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overcome this presumption.’” Rolls-Royce, Inc. v. Garcia, 77 So. 3d 855, 860
(Fla. 3d DCA 2012) (quoting Kinney, 674 So. 2d at 92). In the present case, there
was record evidence that Lainez owns a home in South Florida, which he visits
when he chooses, supporting the presumption in favor of Cellnet’s choice of
forum.
Reversed and remanded, with directions to reinstate the complaint, and for
further proceedings not inconsistent with this opinion.
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