Carenza v. Sun Intern. Hotels, Ltd.

• Decision Date: 01 October 1997
• Docket Number: No. 96-3766,96-3766
• Citation: 699 So.2d 830
• Parties: 22 Fla. L. Weekly D2300 Patrick CARENZA and Sophia Carenza, Appellants, v. SUN INTERNATIONAL HOTELS, LTD., a Bahamas Corporation, d/b/a Atlantis, and Sun International Bahamas, Ltd., a Bahamas Corporation, d/b/a Atlantis, Appellees.
• Court: Florida District Court of Appeals

Page 830

699 So.2d 830

22 Fla. L. Weekly D2300

Patrick CARENZA and Sophia Carenza, Appellants, v. SUN INTERNATIONAL HOTELS, LTD., a Bahamas Corporation, d/b/a Atlantis, and Sun International Bahamas, Ltd., a Bahamas Corporation, d/b/a Atlantis, Appellees.

No. 96-3766.

District Court of Appeal of Florida Fourth District.

Oct. 1, 1997.

Richard M. Benrubi and Debra B. Potter of Broad and Cassel, West Palm Beach, for appellants.

Donald E. Fucik of Luks, Koleos & Santaniello, P.A., Fort Lauderdale, for appellees.

DONNER, AMY STEELE, Associate Judge.

Patrick and Sophia Carenza, plaintiffs, appeal a dismissal on forum non conveniens grounds. We reverse.

This negligence action arose when plaintiff Patrick Carenza allegedly slipped and fell on algae on the steps of a waterscape slide pool at the Atlantis Resort and Hotel on Paradise Island, Bahamas. Plaintiffs sued defendant corporations, alleging that they either, by themselves or through subsidiaries, owned, operated, maintained, possessed, and/or controlled the Atlantis Resort and Hotel. ¹

At the time of the incident, the plaintiffs were residents of Palm Beach County; ² the defendants are both Bahamas corporations. ³ Defendants filed a motion to dismiss the case on the grounds of forum non conveniens. They did not file a verified pleading, present sworn affidavits, or introduce sworn testimony to support the motion to dismiss.

In Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86, 90 (Fla.1996), the supreme court adopted the federal standard for determining forum non conveniens. This standard is now codified in Florida Rule of Civil Procedure 1.061 (1997). Kinney mandates that in considering a motion to dismiss for forum non conveniens, a trial court must engage in a four-step analysis. First, the court must establish whether an adequate alternative forum exists that possesses jurisdiction over the whole case. ⁴ Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs' initial forum choice. Third, if the trial judge finds this balance of private interests in equipoise or near equipoise, the judge must then determine whether or not factors of public interest tip the balance in favor of a trial in [another] forum. Finally, if he or she decides that the balance favors such a forum, the trial judge must ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice. See Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So.2d 1111, 1114 (Fla. 4th DCA 1997) (citing Kinney, 674 So.2d at 90).

Neither the trial court's order granting defendants' motion nor its pronouncements during the hearing on the motion provide this court with enough information to determine whether the trial judge adequately considered each step of the Kinney test in reaching his conclusion. This lack of information is compounded by the defendants' failure to provide any sworn pleadings or affidavits in support of their motion. With such a dearth of evidence, we are unable to determine whether the trial judge's conclusion was correct under the Kinney test. See Rikamor, Ltd. v. Oded, 690 So.2d 697 (Fla. 3d DCA 1997).

Because of the dispute between the parties as to whether the court properly considered all of the factors of Kinney in reaching its conclusion, and the lack of written findings in the trial court's order, we must reverse the order under review with instructions to the trial court to adequately set forth its findings and conclusions under Kinney. See Rikamor, 690 So.2d at 697; Kelly v. Sun & Sea Estates, Ltd., 681 So.2d 922 (Fla. 3d DCA 1996).

Compounding this court's confusion as to the adequacy of the lower court's Kinney analysis is that defendants offered no sworn proof to the trial court to substantiate the assertions made in their motion to dismiss. "A transfer of venue based on convenience is improper where no affidavits or other sworn proof support the motion." Graham v. Graham, 648 So.2d 814, 815-16 (Fla. 4th DCA 1995); see Davis v. Florida Power Corp., 492 So.2d 829 (Fla. 2d DCA 1986) (where allegations of unsworn motion to dismiss or transfer were never established by sworn proof, the trial court had no evidence on which to base its decision to transfer venue).

A defendant's burden of persuasion runs to all the elements of the forum non conveniens analysis. Camejo v. Ocean Drilling & Exploration, 838 F.2d 1374 (5th Cir.1988). Defendants argue that they met this burden despite the...