Glf Construction Corp. v. Credinform International , 225 So. 3d 377 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed August 16, 2017.
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No. 3D16-1348
Lower Tribunal No. 15-17805
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GLF Construction Corporation,
Appellant,
vs.
Credinform International, S.A.,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Peter R. Lopez, Judge.
Ferencik Libanoff Brandt Bustamante & Goldstein and Ira Libanoff (Fort
Lauderdale); Holland & Knight, Rodolfo Sorondo, Jr., and Rebecca M. Plasencia,
for appellant.
Foley & Lardner, Edmund T. Baxa, Jr., Natalia M. Salas, James A. McKee
(Tallahassee) and Benjamin J. Grossman (Tallahassee), for appellee.
Before SUAREZ, EMAS and LOGUE, JJ.
PER CURIAM.
ON APPELLANT’S MOTION FOR REHEARING AND/OR
CLARIFICATION AND CORRECTION
We deny appellant’s motion for rehearing, but grant its motion for
clarification and correction, withdraw the previously-issued opinion, and substitute
the following corrected opinion in its stead.
INTRODUCTION
GLF Construction Corporation (“GLF”), a Florida corporation, appeals the
trial court’s denial of its motion to dismiss for forum non conveniens. We affirm.
Credinform International, S.A. (“Credinform”), a Bolivian insurance
company, filed suit against GLF in Miami-Dade County Circuit Court for fraud,
aiding and abetting fraud, negligent misrepresentation, and violation of the Florida
Deceptive and Unfair Trade Practices Act (“FDUTPA”).
GLF moved to dismiss the complaint for forum non conveniens, asserting
that Italy was a more appropriate forum. GLF also contended that the allegations
against GLF were, in reality, allegations against GLF’s parent company, Grandi
Lavori, an Italian corporation, arising out of a construction project in Bolivia, and
that GLF (a Florida corporation) was sued (instead of Grandi Lavori) to enable the
action to be filed in Florida.
BACKGROUND
In 2007, the governments of Bolivia and Italy entered into an agreement by
which the Italian government, through an agency called the Italian Cooperation,
2
agreed to partially fund the construction of a dam on the Misicuni River in Bolivia.
The funding was contingent upon the award of the construction contract to a
consortium headed by an Italian contracting company. Empresa Misicuni, a
Bolivian government-owned company, was in charge of overseeing the Misicuni
Dam Project.
In June 2008, Empresa Misicuni issued an invitation to bid on the Misicuni
Dam Project, specifying that an Italian company must have a leadership position
(51%) in the construction consortium. Several months later, Grandi Lavori, an
Italian engineering and construction company, joined with a construction
consortium, Consorcia Hidroelectrico Misicuni (“CHM”), together with several
South American companies, for the purpose of bidding on the Misicuni Dam
Project. Grandi Lavori has its principal place of business in Rome, but its
subsidiary, GLF (the defendant below), is a Florida corporation. Francisco Senis,
an employee of Grandi Lavori and the Vice President of GLF, resides in Florida,
but has dual citizenship in Italy and America. In July 2008, Grandi Lavori’s
president, Alessandro Mazzi, executed a power of attorney in Rome, appointing
Senis to represent Grandi Lavori related to its business and projects in South
America.
On November 2008, Senis executed a power of attorney in the Bolivian
embassy in Miami, in favor of Martin Rovira Rada (“Rovira”), a Bolivian resident,
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authorizing Rovira to represent Grandi Lavori in the CHM consortium. Rovira
later signed the CHM Organizational Agreement, in December 2008, which
provides that Grandi Lavori has a fifty-one percent ownership interest in the CHM
consortium. Rovira listed GLF’s Miami address as the address for Grandi Lavori.
The CHM consortium was awarded the Misicuni Dam Project in January
2009. The successful bidder was required to provide Empresa Misicuni with an
advance payment bond and a performance bond issued by a Bolivian insurance
company. Rovira contacted Credinform to this purpose, and sent Credinform the
necessary information, including the CHM Organizational Agreement, which,
importantly, indicated that Grandi Lavori had a fifty-one percent ownership
interest in the CHM consortium.
On March 30, 2009, Grandi Lavori’s president executed a new power of
attorney in Rome, authorizing Rovira to act on behalf of Grandi Lavori for
purposes of CHM and the Misicuni Dam Project. Thereafter, Credinform issued
the advance payment bond and the performance bond. Rovira signed both bonds,
using mrovira@glfusa.com as his contact email.
Construction began on the Project, and in June 2009, CHM wire transferred
$1,530,333 to GLF’s Miami account. At some point during the construction, and
for reasons not directly related to this appeal, it was determined that work on the
Project should not continue. When the remaining members of the CHM
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consortium refused to halt construction, Grandi Lavori suspended its participation
in the Project, and funding of the Project was suspended. Empresa Misicuni
terminated the construction contract in November 2013, and demanded that
Credinform pay on the bonds, which it did, in the amount of nearly $15,000,000.
Credinform then filed the instant action against GLF in Miami-Dade.
In its Amended Complaint (and in its response to GLF’s motion to dismiss
on forum non conveniens grounds), Credinform contended that GLF was formed to
help Grandi Lavori with its business activities in the Americas, and that GLF
provided Grandi Lavori with personnel and infrastructure support regarding Grandi
Lavori’s pursuit of the construction contract, the acquisition of the construction
bonds and the monitoring of the Misicuni Dam Project.
Credinform alleged that Senis accepted the power of attorney from Grandi
Lavori in the scope of his employment with GLF and that Senis’ power of attorney
to Rovira was made in furtherance of GLF’s corporate purpose of assisting its
parent company with its business in the Americas. Credinform also alleged that
Rovira worked with Senis to obtain the bonds from Credinform in furtherance of
GLF’s purpose of assisting Grandi Lavori. Finally, the Amended Complaint
alleged that agents or employees of GLF were part of a finance committee to
monitor the Project and to approve expenses.
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GLF renewed its motion to dismiss for forum non conveniens, incorporating
its prior filings and submitting additional evidence. After a hearing, the trial court
denied the motion to dismiss, finding that although Italy would be a proper
alternative forum, the private factors weighed slightly in favor of Credinform’s
forum choice, and the public factors weighed in favor of Florida. This appeal
followed.
ANALYSIS:
We review the trial court’s denial of the motion to dismiss for forum non
conveniens under an abuse of discretion standard. Ryder Sys., Inc. v. Davis, 997
So. 2d 1133 (Fla. 3d DCA 2008).
On appeal, GLF asserts that the trial court abused its discretion in
determining that the private and public factors weigh in favor of Florida because it
“failed to properly analyze” those factors. However our review of the record,
including the transcript of the hearing, establishes that the trial court conducted a
proper, adequate analysis, and we find no abuse of discretion in its determinations.
As set forth in Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d
86 (Fla. 1996), Florida courts are required to consider four factors in analyzing
whether a case should be dismissed on forum non conveniens grounds. The
Kinney analysis is incorporated into Florida Rule of Civil Procedure 1.061(a),1
which provides:
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(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.
The decision to grant or deny the motion for dismissal
rests in the sound discretion of the trial court, subject to
review for abuse of discretion.
In this case, it is undisputed that Italy is an adequate alternative forum, and
because the trial court ultimately denied GLF’s motion to dismiss, we are
concerned here only with the second and third prongs of the above Kinney
analysis.
1The court commentary to rule 1.061 notes: “This section was added to elaborate
on Florida’s adoption of the federal doctrine of forum non conveniens in Kinney
System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996), and it should
be interpreted in light of that opinion.”
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Private Interests
As to the private interests prong, GLF asserts that the trial court focused
solely on Credinform’s ability to prove its claims and ignored GLF’s ability to
prove its defenses. We do not agree. A review of the record establishes that the
trial court considered both sides of the issue, and that it did not agree with GLF’s
contention that Italy was a better forum because most of the evidence necessary to
establish GLF’s defenses were located there. Further, we note that Credinform
sued GLF in its home forum of Florida, and as we have noted in prior decisions, “a
forum non conveniens argument coming from a party sued where [it] resides is
both ‘puzzling’ and ‘strange.’” Cardoso v. FPB Bank, 870 So. 2d 1247, 1250 (Fla.
3d DCA 2004) (quoting Sanwa Bank, Ltd. v. Kato, 734 So. 2d 557, 561 (Fla. 5th
DCA 1999)). And as the Florida Supreme Court has noted in this regard: “Indeed,
‘the fact that the defendants are located in this country,’ and especially in this state,
“is one indication that it would be less burdensome for the defendants to defend
suit in this country than it would be for [the plaintiff] to litigate in a foreign
country.” Cortez v. Palace Resorts, Inc., 123 So. 3d 1085, 1097 (Fla. 2013)
(quoting Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 346 (8th Cir. 1983)).
GLF also contends that Credinform sued GLF only to enable the action to be
brought in Florida, when in fact the “real” defendant should have been Grandi
Lavori. However, a review of the well-pleaded allegations of the amended
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complaint evidences that Credinform did assert factually-sufficient claims against
GLF for GLF’s own actions. The amended complaint alleges, inter alia, that:
● In order to bid on and qualify for the Misicuni Dam Project, there
was a requirement that an Italian company (such as Grandi Lavori)
must hold a leadership position (51%) in the construction consortium;
● Senis and Rovira, in the course and scope of their agency and/or
employment with GLF, and for the purpose of assisting Grandi Lavori
in its business in the Americas, represented to Credinform that Grandi
Lavori was a majority participant in CHM construction consortium, to
induce Credinform to issue construction bonds for the Project;
● Credinform, knowing Grandi Lavori was an “internationally known
engineering and construction company,” issued the bonds based on
“[t]he technical expertise and the financial strength of Grandi Lavori,”
which had “completed construction of dozens of dams, hydroelectric
plants and thermic-electrical power plants.”
● Grandi Lavori never participated in the CHM consortium, but
instead permitted the CHM consortium to use its name (thereby
satisfying the required fifty-one percent participation of an Italian
company) in exchange for a kickback, enabling CHM to secure the
contract;
● GLF was aware of these “secret agreements” between Grandi
Lavori and CHM when it represented to Credinform that Grandi
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Lavori was participating in the CHM consortium and would be the
technical lead on the Project;
● Ultimately, Credinform alleged, “[b]ut for GLF’s representations
regarding the nature and extent of Grandi Lavori’s participation in
CHM, Credinform would not have issued the construction bonds.”
Thus, GLF’s postulation regarding Credinform’s reasons for suing GLF
(instead of Grandi Lavori), at least at this juncture of the proceedings, does not
overcome Credinform’s choice of a Florida forum. Although Credinform may
well have claims against Grandi Lavori for its failure to perform or complete the
Project, the claims asserted in the action below are against GLF for alleged
misrepresentations made by its employees or agents regarding Grandi Lavori’s
participation in CHM, which induced Credinform to issue the bonds.
While it is clear that this litigation will require production of evidence and
witnesses from Italy to establish certain facts, including Grandi Lavori’s true role
in the consortium, it is equally clear that there will be evidence and witnesses in
Bolivia, where the Project is located, and in Florida, where GLF is incorporated
and located. The documents submitted by GLF, and the allegations of the
complaint, establish that many emails and letters came from GLF in Florida and
that money was deposited from CHM into GLF’s Florida account. Florida law is
clear that “[t]he presumption in favor of a plaintiff’s choice of forum ‘can be
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defeated only if the relative disadvantages to the defendant’s private interests are
of sufficient weight to overcome the presumption.’” Publicidad Vepaco, C.A. v.
Mezerhane, 176 So. 3d 273, 278 (Fla. 3d DCA 2015) (quoting Kinney, 674 So. 2d
at 91). Even foreign plaintiffs are entitled to some deference in their choice of
forum. Publicidad Vepaco, 176 So. 3d at 278. Thus, we find no abuse of
discretion in the trial court’s determination that the private interests tilt in favor of
Florida or, at best, are in equipoise.
Public Interests
Turning to the public interest factors,2 GLF asserts that the trial court failed
to analyze these factors, instead simply concluding that the public interest favored
Florida because GLF is a Florida corporation. However, the record fails to support
this contention. Although the trial court did state, during the hearing, that “the
public interest is affected by suing a defendant in Florida,” in context, this
comment refers to the fact that the public interest analysis, in a case involving a
Florida defendant, requires consideration of the nature and extent of the connection
of the litigation with Florida. “The public interest inquiry focuses on whether the
litigation has a general nexus with the chosen forum ‘sufficient to justify the
2 We disagree with Credinform’s contention that it was not necessary for the trial
court to analyze the public interest factors because it found the private interests did
not favor dismissal. Florida law is clear that court must analyze the public interest
factors where it finds the private interests are at or near equipoise, which was the
case here. See Rolls-Royce, Inc. v. Garcia, 77 So. 3d 855 (Fla. 3d DCA 2012).
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forum’s commitment of judicial time and resources to it.’” Id. at 281 (quoting
Cortez v. Palace Resorts, Inc., 123 So. 3d 1085, 1093 (Fla. 2013)).
Several significant connections with Florida are alleged in this case:
● Senis, employed by GLF (a Florida corporation), represented the
interests of Grandi Lavori and the CHM through actions undertaken
by him in Florida;
● The power of attorney, signed by Senis in Florida, authorized
Rovira (a Bolivian citizen) to act on behalf of Grandi Lavori on the
Project;
● A May 2009 letter from Senis to Credinform, in which Senis
represented Grandi Lavori’s interest in the Project, was sent from
Miami;
● GLF received money from CHM at GLF’s Florida bank account
(although GLF does not dispute this, it does dispute whether this
money was ultimately intended for GLF or Grandi Lavori);
●The core allegations of the Amended Complaint (GLF’s
misrepresentations to Credinform, which induced Credinform to issue
the performance and payment bonds) arose in Florida, and the claims
against GLF are governed by Florida law.
Three general public interest factors are at play: First, “courts may validly
protect their dockets from cases which arise within their jurisdiction, but which
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lack significant connection to it;” second, “courts may legitimately encourage trial
of controversies in the localities in which they arise;” and third, “a court may
validly consider its familiarity with governing law when deciding whether or not to
retain jurisdiction over a case.” Kinney, 674 So. 2d at 92. As applied to the
instant case, we find no abuse of discretion in the trial court’s determination that
the public interest factors weigh in favor of a Florida forum.
CONCLUSION
We hold that the trial court conducted a proper analysis pursuant to Kinney
and rule 1.061(a), and did not abuse its discretion in denying GLF’s motion to
dismiss for forum non conveniens.
Affirmed.
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