SONDRA STAMEN, INDIVIDUALLY AND AS TRUSTEE OF THE STAMEN CONDOMINIUM TRUST AND THE STAMEN MARITAL TRUST, APPELLANT,
v.
JUSTINE STAMEN ARRILLAGA, INDIVIDUALLY AND AS NOMINATED SUCCESSOR TRUSTEE OF THE STAMEN CONDOMINIUM TRUST AND STAMEN MARITAL TRUST, APPELLEE

Fla. 4th DCA | 2015-07-15
No. 4D14-2652
WARNER, GROSS, and FORST, JJ., concur.
169 So. 3d 1209 Florida District Court of Appeal, Fourth District (2015) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Sondra Stamen appealed a trial court's denial of her motion to dismiss for lack of jurisdiction and improper venue. The appellate court affirmed, holding that the trial court properly denied the motion and that Stamen's forum non conveniens argument was untimely and procedurally deficient.


Holding

The trial court properly denied the motion to dismiss. The trial court did not err in failing to address forum non conveniens because: (1) it was not raised in the original motion to dismiss; (2) any assertion of forum non conveniens was time-barred under Florida Rule of Civil Procedure 1.061(g), which requires such motions be filed within 60 days of service; and (3) the motion lacked supporting affidavits or sworn proof.


Headnotes

[1] A motion to dismiss based on forum non conveniens must be served not later than 60 days after service of process on the moving party.

[2] A trial court is not required to sua sponte raise the issue of forum non conveniens when it has not been raised by a party.

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Key Quotes

“Improper venue (which was pled) and forum non conveniens are distinct legal objections and a party's pleading of one does not inherently raise the other.”

Establishes that forum non conveniens must be separately and distinctly pleaded, not subsumed within improper venue arguments.

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Facts & Procedural History

Sondra Stamen, individually and as trustee of two trusts, was sued by Justine Stamen Arrillaga in a complaint. Stamen filed a motion to dismiss for la…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant Sondra Stamen appeals a non-final order denying her motion to dismiss Appellee Justine Stamen Arrillaga’s complaint for lack of jurisdiction and improper venue. We hold that the trial court’s order sufficiently explained the rationale for finding jurisdiction and proper venue and we need not address those issues further. On appeal, Appellant additionally raises the doctrine of forum non conveniens and asserts “[t]he trial court intentionally failed to engage in [a forum non conve-niens] analysis.” As set forth below, Appellant’s forum non conveniens argument is “too little, too late.” Accordingly, we affirm the order denying Appellant’s motion.

Appellant’s “Motion to Dismiss for Lack of Jurisdiction and Improper Venue and for Sanctions” was improper for three reasons. First, the motion does not argue forum- non conveniens as grounds for dismissal. Improper venue (which was pled) and forum non conve-niens are distinct legal objections and a party’s pleading of one does not inherently raise the other. See, e.g. Whitehead v. Nat’l Crane Corp., 466 So.2d 412, 413 (Fla. 3d DCA 1985). It is true that “[a] trial court may sua sponte raise the question of whether venue should be transferred to another county ... for the convenience of parties or witnesses or in the interest of justice.” McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.3d 504, 511 (Fla. 4th DCA 2010). However, it is not erroneous for a court to decline to rule on an issue where it was not raised by a party. Here, Appellant has failed to submit a transcript from the trial court’s hearing on the instant motion and, therefore, we cannot determine whether the issue of forum non conveniens was raised in the hearing; it was not addressed in the trial court’s order. Thus, the “record brought forward by the appellant is inadequate to demonstrate reversible error.” Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

Second, Appellant’s first mention of forum non conveniens appears in her Response to Motion to Strike, dated June 9, 2014. Florida Rule of Civil Procedure 1.061(g) states “a motion to dismiss based *1211on forum non conveniens shall be served not later than 60 days after service of process on the moving party.” Service in this case was made to Appellant’s attorney on February 28, 2014.1 This is a duration of over 100 days, well past the 60-day time limit provided by the statute. “Where a motion is untimely under this rule, the motion should be denied.” Fox v. Union Carbide Corp., 910 So.2d 422, 424 (Fla. 4th DCA 2005). Thus, the trial court’s failure to address the forum non conveniens allegation was not error, as any such assertion was time-barred.

Third, even if we were to find that the trial court had the ability to make a forum non conveniens determination based on the June 9 filing, there is an additional problem with Appellant’s pleadings that would preclude a determination in Appellant’s favor. “A transfer of venue based on convenience is improper where no affidavits or other sworn proof support the motion.” Carenza v. Sun Int’l Hotels, Ltd., 699 So.2d 830, 832 (Fla. 4th DCA 1997) (quoting Graham v. Graham, 648 So.2d 814, 815-16 (Fla. 4th DCA 1995)). Appellant’s motion is not sworn as true and Appellant failed to file any affidavits in support of the facts asserted in the motion.

Appellant’s arguments on appeal were either conceded in her brief or untimely made. The trial court did not err by denying Appellant’s motion to dismiss. Accordingly, we affirm the trial court’s ruling.

Affirmed.

WARNER, GROSS, and FORST, JJ., concur.


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Citator

Cited By

  • …explaining that “[i]t is incumbent upon the parties to submit affidavits or other evidence that will shed the necessary light on the issue of the convenience of the parties and witnesses and the interest of justice.”); see also Stamen v. Arrillaga, 169 So. 3d 1209, 1211 (Fla. 4th DCA 2015) (affirming trial court’s denial of a motion to dismiss for forum non conveniens because the “motion [wa]s not sworn as true and [the defendant] failed to file any affidavits in support of the facts asserted in the motion”);…
  • …explaining that “[i]t is incumbent upon the parties to submit affidavits or other evidence that will shed the necessary light on the issue of the convenience of the parties and witnesses and the interest of justice.”); see also Stamen v. Arrillaga, 169 So. 3d 1209, 1211 (Fla. 4th DCA 2015) (affirming trial court’s denial of a motion to dismiss for forum non conveniens because the “motion [wa]s not sworn as true and [the defendant] failed to file any affidavits in support of the facts asserted in the motion”);…

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