Third District Court of Appeal
State of Florida
Opinion filed August 9, 2023.
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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, and Rebecca M. Plasencia, Adolfo E. Jimenez,
Katharine Menendez de la Cuesta and Joshua R. Levenson, 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.
ON MOTION FOR REHEARING AND REHEARING EN BANC
We deny Mary Ann James De Holguin’s motion for rehearing but
withdraw our prior opinion and substitute the following opinion in its stead.
INTRODUCTION
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
(“Majaroho”), for forum non conveniens. We have jurisdiction. Fla. R. App.
P. 9.130(a)(3)(C)(viii). Finding no abuse of discretion in the trial court’s
finding that Colombia was an adequate forum on counts two, three and five
of the complaint, we affirm. As to counts one, four and six of the complaint,
however, we reverse and remand to the trial court to make an independent
determination as to whether Colombia is an adequate forum.
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
2
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
proceedings. Five months later, the Wife filed the instant independent
creditor action, raising claims against the Daughter and Majaroho relating to
the MOU. 1 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.
1
We affirm the trial court’s finding that the Daughter, as an individual, and
Majaroho were not proper parties to the action because they were non-
parties to the MOU. See CH2M Hill Se., Inc. v. Pinellas Cnty.,
598 So. 2d
85, 89 (Fla. 2d DCA 1992) (“It remains the rule in Florida that ordinarily a
contract cannot bind one who is not a party thereto or has not in some fashion
agreed to accept its terms.”).
3
The trial court held a 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. 2
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).
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
2
The trial court dismissed the Wife’s claims for specific performance,
temporary injunction and constructive trust based on the probate court’s
finding that the Casa del Mar property was a probate asset. Based on this
Court’s decision in de Holguin v. Godin,
359 So. 3d 1254, 1255 (Fla. 3d DCA
2023), that finding has been remanded for further proceedings. We make
no determination as to whether the Casa del Mar property is a probate asset
here. We do, however, find the trial court’s dismissal of these counts was
improvidently entered. We therefore remand these counts for the trial court
to determine whether Colombia is an adequate forum.
4
(citing 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).3 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 for counts two, three and
3
Florida Rule of Civil Procedure 1.061(a) 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. 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.
5
five. See Abeid-Saba v. 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 in part, reversed in part and remanded.
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