ALBERT FORSYTH SOLARI, ET AL., APPELLANTS,
v.
ZUBLIN CHILE INGENIERIA Y CONSTRUCCIONES, ETC., ET AL., APPELLEES

Fla. 3d DCA | 2008-07-16
No. 3D07-3033
Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
987 So. 2d 161 Florida District Court of Appeal, Third District (2008) Positive Treatment
Cited by 2 cases

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Synopsis

The Forsyth Group appealed the trial court's denial of their motion to dismiss based on forum non conveniens and their motion to sever claims against TotalBank in a fraud case involving alleged theft from a Chilean corporation. The appellate court affirmed, holding that the trial court properly denied the forum non conveniens motion because a non-moving, objecting defendant (TotalBank) did not stipulate to the required conditions, and properly denied severance because the claims were inextricably interwoven.


Holding

The trial court properly denied the forum non conveniens motion on procedural grounds because Florida Rule of Civil Procedure 1.061 requires all non-moving defendants to stipulate before dismissal is allowed, and TotalBank, as a non-moving objecting defendant, refused to stipulate. The trial court also properly exercised its discretion in denying the severance motion because the claims against all defendants were inextricably interwoven around the same facts of conspiracy and money laundering.


Headnotes

[1] A trial court cannot dismiss an action for forum non conveniens if a non-moving defendant objects and refuses to stipulate to the requirements of Florida Rule of Civil Pr…

[2] A trial court has discretion to order separate trials for claims, but severance is improper when the facts underlying the claims are inextricably interwoven.

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Key Quotes

“Florida Rule of Civil Procedure 1.061 states that the trial court shall not dismiss for forum non conveniens unless all non-moving defendants stipulate that the action will be treated in the new forum as if it had been filed on the same date it was filed in Florida.”

Establishes the mandatory procedural requirement for forum non conveniens dismissal under Florida law.

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Facts & Procedural History

Zublin Chile, a Chilean corporation, sued Albert Forsyth (its Peruvian attorney), his wife, and their company (the Forsyth Group) along with TotalBank…

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Opinion of the Court
SUAREZ, J.

SUAREZ, J.

Appellants, defendants below, Albert Forsyth Solari, Fadia Daneri de Forsyth, Dagwood Services Company, Ltd., and Deutsche Ingenieurs und Projekt Gesells-chaft, Ltd., (collectively “Forsyth Group”), seek to reverse the trial court’s non-final order denying their Motion to Dismiss the Amended Complaint based on forum non conveniens and denying their Motion to Sever Zublin’s claims against TotalBank.

We affirm.

The trial court correctly denied the motion on procedural grounds and did not abuse its discretion in denying the motion to sever. Appellee Zublin Chile Ingeniería y Con-strucciones Ltda. a Chilean corporation, and its Peruvian subsidiary, Zublin Chile Ingeniería y Construcciones Ltda. Sucur-sal Peru (collectively, “Zublin”), filed suit against the company’s Peruvian attorney, Albert Forsyth, the Forsyth Group and Florida-chartered TotalBank in Miami-Dade County Circuit Court. Zublin alleges that Albert Forsyth, Forsyth’s wife, and several high-ranking Zublin executives conspired to steal more than twelve million dollars from Zublin Peru by submitting fraudulent invoices. It is alleged that when Zublin Peru paid for nonexistent goods and services, the funds were channeled through TotalBank in Miami and ultimately distributed to banks abroad. The Forsyth Group, but not TotalBank, moved to dismiss based on forum non con-veniens under Florida Rule of Civil Procedure 1.061, and to sever Zublin’s claims against TotalBank from those against the Forsyth Group. The Zublin plaintiffs and co-defendant TotalBank objected. After discovery on the issue and an evidentiary hearing, the trial court denied both the motion to dismiss on forum non conveniens grounds and the motion to sever.

The trial court correctly denied the motion to dismiss on procedural grounds. Florida Rule of Civil Procedure 1.061 states that the trial court shall not dismiss for forum non conveniens unless all non-moving defendants stipulate that the action will be treated in the new forum as if it had been filed on the same date it was filed in Florida. Fla. R. Civ. P. 1.061. If all non-moving defendants do not agree, the trial court cannot dismiss.1 Nothing in Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla.1996), or Rule 1.061, requires a non-moving, objecting defendant to stipulate. Baranek v. Am. Optical Corp., 941 So. 2d 1214, 1219 (Fla. 4th DCA 2006). TotalBank is a non-moving, objecting defendant. It refused to stipulate under the rule.

Accordingly, a forum non conveniens dismissal could not be granted by the trial court.

The Forsyth Group claims that the trial court also erred in not granting its motion to sever the claim against Total-Bank.

We disagree.

The trial court does have discretion to order separate trials for any claim, crossclaim, counterclaim, or third-party claim. Fla. R. Civ. P. 1.270(b); Maris Distrib. Co. v. Anheuser-Busch, Inc., 710 So. 2d 1022 (Fla. 1st DCA 1998).

Florida courts have found it improper to sever claims when the facts underlying the claims of the respective parties are inextricably interwoven. See Plantation Vill., Ltd. v. Aycock, 617 So. 2d 729, 732 (Fla. 2d DCA 1993).

The claims by Zublin all revolve around the same inextricably interwoven facts — that the Forsyth Group of individuals conspired to steal money from Zublin in Peru and in the United States and that those funds were channeled through TotalBank to accounts outside of the United States. “The general rule ... is that a trial judge’s exercise of discretion on a severance question will not be disturbed absent a clear showing of abuse.” Hardee Mfg. Co. v. Josey, 535 So. 2d 655, 656 (Fla. 3d DCA 1988).

The record below reflects that the trial court did not abuse its discretion when it denied the motion to sever.

Affirmed.

. The Committee Notes regarding the 2000 amendments to Florida Rule of Civil Procedure 1.061 specifically state that subdivision (b) of that rule was amended to clarify that all of the defendants, not just the moving defendants, must agree to the stipulations required by subdivision (c) as well as any additional stipulations required by the trial court before an action may be dismissed based on forum non conveniens.


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Citator

Cited By

  • Lopez v. S. Audio Visual, Inc. (Fla. 3d DCA 2019)
    …udulent transfer). Florida Rule of Civil Procedure 1.270(b) provides a trial court with broad discretion “to order separate trials for any claim, crossclaim, counterclaim, or third- party claim.” Solari v. Zublin Chile Ingenieria y Construcciones, 987 So. 2d 161, 163 (Fla. 3d DCA 2008). We have granted certiorari, however, to remedy “orders severing or bifurcating claims which involve interrelated factual issues because severance risks inconsistent outcomes.” Kavouras v. Mario City Rest. Corp., 88 So. 3d…
  • Glover v. Vasallo (Fla. 3d DCA 2020)

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