Houston v. Caldwell

• Decision Date: 18 February 1977
• Docket Number: No. 76-260,76-260
• Citation: 347 So.2d 1041
• Parties: George Robert HOUSTON, Appellant, v. James R. CALDWELL, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 1041

347 So.2d 1041

George Robert HOUSTON, Appellant, v. James R. CALDWELL, etc., et al., Appellees.

No. 76-260.

District Court of Appeal of Florida, Fourth District.

Feb. 18, 1977.

Rehearing Denied May 6, 1977.

Lewis S. Eidson, Jr. of Colson & Hicks, P. A., and Susan Goldman, Miami, for appellant.

Marjorie D. Gadarian of Jones, Paine & Foster, P. A., West Palm Beach, for appellees.

MAGER, Chief Judge.

This is an appeal by George Robert Houston, plaintiff below, from a final order granting the motion to dismiss of James R. Caldwell and Aetna Insurance Company, defendants below, such dismissal being based upon the doctrine of forum non conveniens.

In the proceedings below plaintiff filed an action in tort in Palm Beach County, Florida against defendants based upon an automobile accident occurring in North Carolina. In his complaint plaintiff alleges that he is a resident of Highlands, North Carolina and the defendant, James R. Caldwell, is a resident of Palm Beach County, Florida. Defendants filed a "Motion to Dismiss and/or Abate" contending that "North Carolina is the place where the cause of action accrued and where the Plaintiff and witnesses to this incident are located. It will place undue hardship and injustice for these Defendants to defend this suit in Palm Beach County, Florida".

An affidavit filed by defendant Caldwell and depositions taken before the court reflect that the plaintiff resides in North Carolina; the accident giving rise to the suit occurred in North Carolina; defendant resides in North Carolina six months out of the year; and all witnesses to the accident reside in North Carolina. The pleadings, affidavits and depositions further indicate that defendant Caldwell had established Florida as his residence, as reflected by: purchase of a condominium in Palm Beach County and the sale of a former residence in Wooster, Ohio; retirement from active business and intention to permanently reside in Florida; purchase of a summer residence in North Carolina; Florida voter registration; listing of Boca Raton, Florida as residence on personal federal income tax return; obtaining of Florida driver's license and registration of automobile in Florida. It clearly appears, therefore, that defendant Caldwell is, as plaintiff alleged in his complaint, a resident of Palm Beach County, Florida.

Based primarily upon such factors as the place where the cause of action arose, the location of the witnesses and the summer residence of the defendant in North Carolina, the trial court dismissed plaintiff's complaint without prejudice to re-file the suit in a more appropriate forum, presumably in Highlands, North Carolina. The plaintiff contends that the court's order predicated upon the doctrine of forum non conveniens is erroneous because the doctrine is inapplicable where a defendant is a resident of the forum state (Florida) and furthermore, that defendants failed to prove the availability of an alternative forum.

The doctrine of forum non conveniens which is grounded upon equitable considerations is based upon the concept that the court has the inherent power to decline jurisdiction over a cause even though jurisdiction does exist where, in the interest of justice and the convenience of the litigants, such cause should have been instituted in another forum. Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Adams v. Seaboard Coast Line Railroad Company, 224 So.2d 797 (Fla.1st DCA 1969). The application of the doctrine rests within the sound judicial discretion of the court tempered by the time-honored concept of "the interest of justice". Gulf Oil Corporation v. Gilbert, supra; see also Southern Railway Company v. Bowling, 129 So.2d 433 (Fla.3d DCA 1961). ¹

Although there are no exact criteria by which the doctrine can be measured, it clearly appears that there are two essential elements that must be present in order for ". . . An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility (sic) of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.

the doctrine to be invoked: (1) the cause of action sued upon arose in a jurisdiction outside the forum state and (2) that there is another jurisdiction (outside of the forum) in which the defendant is amenable to process. But see Adams v. Seaboard Coast Line Railroad Company, supra. When these elements are present the court will undertake to evaluate a myriad of factors, the combination and weight of which, will ultimately determine the appropriateness of the doctrine. The Supreme Court of the United States in Gulf Oil Corporation v. Gilbert, supra, discusses some of the factors to be considered:

"Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself." (Emphasis added.) (330 U.S. 508-9, 67 S.Ct. at 843).

Much of the evolving case law has centered around the federal forum non conveniens statute, 28 U.S.C. § 1404(a), which permits inter state as well as intrastate transfers of any civil action "for the convenience of parties and witnesses, in the interest of justice". Florida, which enacted an intrastate venue statute, section 47.122, Florida Statutes, has by decisional law recognized interstate application of the doctrine. In Hagen v. Viney, 124 Fla. 747, 169 So. 391 (1936), the Supreme Court of Florida applied the doctrine of forum non conveniens when it concluded that:

"It is settled law that courts of one state are not required to assume jurisdiction of causes between nonresidents arising in other jurisdictions, though by the rule of comity rather than that of strict right they generally do so. After all is said, the question of jurisdiction in transitory actions between nonresidents is one of discretion on the part of the court assuming it, and no rule has yet been promulgated to guide that discretion. . . ." (at 392-3).

Later Florida appellate decisions have given the Hagen decision a more restrictive reading by seemingly adding another element to the criteria heretofore discussed, i. e., residence of the parties. In Adams v. Seaboard, supra, the First District observed:

". . . In the ultimate, however, it is seen that the application of the doctrine of forum non conveniens is restricted to the limited category of cases in which both parties to the action are nonresidents, and the cause of action sued upon arose in a jurisdiction outside of Florida. It is only after these two factors emerge and coalesce that the trial court is authorized See also Ganem v. de Issa, 225 So.2d 564 (Fla.3d DCA 1969); Southern Railway Company v. McCubbins, 196 So.2d 512 (Fla.3d DCA 1967); Atlantic Coast Line Railroad Company v. Ganey, 125 So.2d 576 (Fla.3d DCA 1960); Killingsworth v. Montgomery Ward & Company, 327 So.2d 50 (Fla.2d DCA 1976); cf. Morgan v. Ande, 313 So.2d 86 (Fla.4th DCA 1975).

to proceed to a determination of whether the criteria necessary to bring into play the doctrine of forum non conveniens have been met. . . ." (Emphasis added.) (224 So.2d at 801.)

Our reading of Hagen and our understanding of the doctrine as discussed in Gulf Oil Corporation v. Gilbert leads us to believe that residency of the parties is not an essential prerequisite to application of the doctrine. While the doctrine is one that should be carefully and cautiously applied since by its very application it deprives the plaintiff of choosing the forum in which the suit is filed, Greyhound Corporation v. Rosart, 124 So.2d 708 (Fla.3d DCA 1960); Atlantic Coast Line Railroad Company v. Ganey, supra, its flexibility should not be compartmentalized to the point where considerations of justice, fairness and convenience become subservient. The Adams rule would limit the doctrine to the category of cases in which both parties to the action are nonresidents (and the cause of action sued upon arose in a jurisdiction outside of Florida). If we were to follow Adams then the doctrine would not be applicable in the instant case because, although the cause of action arose in North Carolina both parties are not nonresidents; only the plaintiff is a nonresident. The other factors discussed in Gulf Oil Corporation could not even be considered because the "non-residency" requirement was not satisfied. Stated differently, unless both parties are nonresidents the doctrine is inapplicable.

Respectfully, we cannot...