Third District Court of Appeal
State of Florida
Opinion filed February 20, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-1391
Lower Tribunal No. 17-21958
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Carlos Luis Vasallo Tome, et al.,
Appellants,
vs.
Victor Herrera-Zenil, etc.,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Dennis J. Murphy, Judge.
Dorta & Ortega, P.A., and Omar Ortega, Evelyn Reyes and Nicole Ruesca,
for appellants.
FORS|Attorneys at Law, and Jorge L. Fors, Jr., for appellee.
Before FERNANDEZ, LOGUE and SCALES, JJ.
SCALES, J.
Carlos Luis Vasallo Tome, Cine Nostalgia, Inc. and Cine Estelar, Inc., the
defendants below, appeal a non-final order denying their Florida Rule of Civil
Procedure 1.061 motion to dismiss on forum non conveniens grounds. The order on
review is an unelaborated order denying the appellants’ rule 1.061 motion “for the
reasons stated in the record,” which we review for an abuse of discretion. See Rolls-
Royce, Inc. v. Garcia, 77 So. 3d 855, 859 (Fla. 3d DCA 2012).
The appellants argue that the trial court denied their rule 1.061 motion, which
was supported by affidavits, without conducting the required analysis set forth in
Kinney Systems, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996)
(codified in rule 1.061). We agree. Where, as here, the trial court’s written order
failed to set forth any “meaningful analysis” addressing each of the Kinney factors,
the hearing transcript on the rule 1.061 motion must reflect that the trial court
engaged in “an adequate analysis of the Kinney factors during the hearing itself . . .
.” Camperos v. Estrella, 126 So. 3d 351, 351 (Fla. 3d DCA 2013) (quoting ABA
Capital Mkts. Corp. v. Provincial de Reaseguros C.A., 101 So. 3d 385, 388 (Fla. 3d
DCA 2012)); Levinson & Lichtman, LLP v. Levinson, 35 So. 3d 182, 182 (Fla. 3d
DCA 2010) (concluding the trial court abused its discretion in granting a rule 1.061
motion “because neither the order granting the motion nor the hearing transcript on
the motion demonstrates the trial court performed a Kinney analysis”). The May 2,
2018 hearing transcript does not reveal a consideration of the Kinney factors.1
1
This Court has recognized a limited circumstance that permits de novo appellate
review where “the trial court did not address (and therefore did not exercise any
discretion) regarding one or more of the Kinney factors.” Ryder Sys., Inc. v. Davis,
2
The appellants further argue that the trial court should have held an
evidentiary hearing to resolve purported conflicts between the parties’ competing
affidavits. On this point, we disagree. While, on remand, the trial court is free to
conduct an evidentiary hearing, the lower court may decide a forum non conveniens
motion “upon the submission of affidavits rather than live testimony.”2 See Rolls-
Royce, Inc., 77 So. 3d at 859 n.4.
Accordingly, we reverse the trial court’s order and remand the case so that the
trial court may articulate its findings on each of the Kinney factors.
Reversed and remanded for further proceedings consistent with this opinion.
997 So. 2d 1133, 1135 (Fla. 3d DCA 2008). “In that situation, this court has the
latitude to address the previously-unaddressed Kinney factors for the first time on
appeal in the interest of judicial economy and efficiency.” Id. We decline the
appellants’ invitation to conduct a de novo review in this case.
2
In such an instance, the presumption of correctness given the trial court’s finding
is lessened “because the appellate court has everything the trial court had before it.”
Woods v. Nova Cos. Belize Ltd., 739 So. 2d 617, 621 (Fla. 4th DCA 1999) (quoting
Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So. 2d 1111, 1118 (Fla. 4th DCA 1997));
see Rolls-Royce, Inc., 77 So. 3d at 859 n.4; Ryder Sys., Inc. v. Davis, 997 So. 2d
1133, 1135 (Fla. 3d DCA 2008) (“Although we acknowledge that the presumption
of correctness given to a trial court’s ruling is lessened where . . . the trial court’s
findings are based on affidavits rather than live testimony, we still give substantial
deference to the trial court’s decision, where its balancing of the Kinney factors is
reasonable.” (quoting Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So.
2d 912, 916 (Fla. 4th DCA 2008)).
3