author: SUAREZ, J. ROTHENBERG, J.

text:
    Shahla M. RABIE CORTEZ, Appellant, v. PALACE HOLDINGS, S.A. DE C.V., d/b/a Palace Resorts, d/b/a Moon Palace Golf & Spa Resort, et al., Appellees.
    No. 3D09-3468.
    District Court of Appeal of Florida, Third District.
    June 22, 2011.
    Rehearing Denied Aug. 24, 2011.

      Diaz Reus & Targ and Michael Diaz, Jr., Carlos F. Gonzalez, Gary E. Davidson, Miami and Vincent W. Li, for appellant.
    Wilson, Elser, Moskowitz, Edelman & Dicker, and Ricardo J. Cata and Ronnie Guillen, Miami, for appellees.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

Shahla M. Rabie Cortez seeks to reverse a non-final order granting the defendants’, Palace Resorts, Inc. et al., motion to dismiss based on forum non conveniens. We affirm.

In 2006, Cortez, a California resident, booked her vacation at the Moon Palace Golf and Spa Resort in Cancún, Mexico through Washington State-based Costco Travel. While at the resort, she went for a massage at the resort spa and was sexually assaulted by the male masseuse. Cortez reported the incident to Resort employees in Mexico, to her travel agent in Mexico, and to the U.S. Consulate in Mexico. She also reported the assault to local Mexican authorities, gave a statement to the Mexican sex crimes unit, and underwent a physical exam in Mexico. Cortez returned to California and subsequently sued Palace Holdings, S.A. and its subsidiaries, Tradeco Ltd. (the travel agent), and Costco (since dismissed) in the 11th Judicial Circuit in and for Miami-Dade County for, among other things, vicarious liability for what she claims is negligent vacation packaging. The defendants filed a motion to dismiss for forum non conveniens claiming Mexico to be the more convenient forum. At the hearing on defendants’ motion, the trial court took evidence in the form of affidavits from both parties and their experts and heard argument from counsel. The trial court granted the motion and dismissed the case, finding in a detailed written order that the defendants had met their burden of proof for demonstrating forum non conveniens pursuant to all of the factors set forth in Kinney Systems., Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla.1996). We agree.

The decision to grant or deny a motion to dismiss on the grounds of forum non conveniens rests in the sound discretion of the trial court. See Fla. R. Civ. P. 1.061 (“Orders granting or denying dismissal for forum non conveniens are subject to appellate review under an abuse of discretion standard.”); Ryder System, Inc. v. Davis, 997 So.2d 1133 (Fla. 3d DCA 2008). As this Court correctly articulated in Ryder:

The Florida Supreme Court has specified that the standard of review is abuse of discretion, and we follow that standard. The only exception, a limited one, is when the trial court did not address (and therefore did not exercise any discretion) regarding one or more of the Kinney factors. In that situation, this court has the latitude to address the previously-unaddressed Kinney factors for the first time on appeal in the interest of judicial economy and efficiency.

997 So.2d at 1135. And, “[although we acknowledge that the presumption of correctness given to a trial court’s rulings is lessened where, as here, the trial court’s findings are based on affidavits rather than live testimony, we still give substantial deference to the trial court’s decision, where its balancing of the Kinney factors is reasonable.” Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So.2d 912, 916 (Fla. 4th DCA 2008) (citations omitted). Indeed,

[f]or practical reasons it is necessary that the rule be as the Fourth District [in Bridgestone/Firestone ] has said. If the review were de novo in every case in which the factual record is based on affidavits rather than live testimony (which is true in almost every forum non conveniens case), the litigants would have an incentive to appeal every forum non conveniens order in hopes that the appellate panel, considering the matter de novo, would reach a different ruling. The abuse of discretion standard is entirely appropriate.

Ryder, 997 So.2d at 1135.

The trial court had before it the record, the affidavits of the parties and the parties’ experts, and all of the steps set forth in Kinney were argued at length by both sides at the hearing on the motion to dismiss for forum non conveniens. Each of the Kinney steps was fully addressed by the trial court in the trial court’s Order Granting the Motion to Dismiss on Forum Non-Conveniens, which is the order before us on appeal. Our review of the complaint and affidavits demonstrates that, based on the test set forth in Kinney, Mexico is a more convenient forum to litigate the lawsuit than Florida. We decline to, and based on our standard of review can not, re-weigh the evidence and we conclude that the trial court did not abuse its discretion by granting the defendants’ motion to dismiss on forum non conveniens grounds. - See Ryder, 997 So.2d at 1134-85.

In reviewing the order on appeal we necessarily follow the Kinney guidelines. The first step in the Kinney analysis is to determine whether the alternate forum — in this case, Mexico — is an available and adequate forum for the Plaintiffs action. The foreign forum does not need to be perfect. Absent evidence of extreme partiality or gross inefficiency, a foreign forum is adequate if there is a satisfactory remedy and the defendant is amenable to process. See Hilton Int’l Co. v. Carrillo, 971 So.2d 1001, 1005 (Fla. 3d DCA, 2008). “[A] foreign forum is adequate when the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American Court.” Ciba-Geigy, Ltd. v. Fish Peddler, Inc., 691 So.2d 1111, 1115 (Fla. 4th DCA 1997); see also Diatronics, Inc. v. Elbit Computers, Ltd., 649 F.Supp. 122, 127 (S.D.N.Y.1986) (holding that “the prospect of a lesser recovery does not justify refusing a motion to dismiss on the ground of forum non conveniens”).

We note that, although procedures and remedies available in Mexico may be different from or offer a less favorable outcome than our courts, this is not enough to render Mexico an inadequate forum under Kinney. Defendants’ expert opined that the cause of action being brought by Cortez could also be brought in Mexico and that monetary damages could be awarded. Cortez argues that Mexico is not adequate because she cannot obtain the services of an attorney on a contingent fee basis. Although disputed by the Plaintiffs expert, the inability to obtain an attorney on a contingent fee basis does not render the foreign forum inadequate. See Resorts Int’l, Inc. v. Spinola, 705 So.2d 629 (Fla. 3d DCA 1998) (finding that plaintiffs inability to obtain contingent fee arrangement in the foreign forum was not relevant to forum non conveniens analysis); see e.g., Coakes v. Arabian Am. Oil Co., 831 F.2d 572, 575 (5th Cir.1987) (holding that the lack of a contingent-fee system is not a determinative factor in the forum non conveniens analysis).

Regarding the private interests involved, we recognize and agree with the trial court that there is a strong presumption against disturbing a plaintiffs choice of forum. Kinney, 674 So.2d at 90. But that presumption is given less deference when, as here, the plaintiff is an out-of-state resident with very little, if any, contact with Florida. See Kerzner Int’l Resorts, Inc. v. Raines, 983 So.2d 750, 751 (Fla. 3d DCA 2008). Even with deference to the Plaintiffs choice of forum, the private interest factors weigh more heavily in favor of proceeding against the defendants in Mexico. The Appellant, a California resident, chose to file suit in Florida, a forum that is not her residence; thus, she is not entitled to a strong presumption in favor of Florida as her initial forum choice. Without this strong presumption, the private interests clearly favor dismissal and resolution in a Mexican forum where the most significant evidence and witnesses are located. See Value Rent-A-Car, Inc. v. Harbert, 720 So.2d 552, 555 (Fla. 4th DCA 1998) (holding that the strong presumption against disturbing plaintiffs’ initial forum choice diminishes where the plaintiff has chosen a foreign forum that is not convenient for the plaintiff).

Because the trial court’s balancing of the initial Kinney factors weighs strongly in favor of Mexico, we need not go further in our analysis. Kinney, 674 So.2d at 92 (finding that the third step of the analysis comes into play only if the competing private interests are substantially in balance in either forum). But we do agree with the trial court that the next Kinney element, the public interest concerns, also points toward Mexico as the most favorable forum. The public interest factors in a forum non conveniens analysis, in broad terms, focus on whether the case has a general nexus with the forum sufficient to justify the forum’s commitment of judicial time and resources to it. Kawasaki Motors Corp. v. Foster, 899 So.2d 408 (Fla. 3d DCA 2005) (holding that the public interest will be served by transferring jurisdiction to either the state where the plaintiff resides, which has a greater interest in protecting its vacationing residents, or to the foreign forum that has a significant interest in punishing a wrongdoer within its jurisdiction and ensuring the safety of those who visit its resorts); Ciba-Geigy, Ltd., 691 So.2d at 1124 (finding that courts can protect their dockets from cases over which they may be able to assert jurisdiction but which lack significant connection to the forum, encourage the litigation of controversies in the localities in which they arose, and consider familiarity with the law which will be applied in considering whether to retain jurisdiction). Cortez claims that the defendants’ corporate headquarters are located in Florida and that the alleged negligent marketing of the vacation package occurred in Florida. The record indicates that Palace Resorts, Inc. is a Delaware corporation that provides marketing, reservations and booking services for the Moon Palace Resort in the U.S., and had no ownership or management role in the Mexican resort. The record shows that Palace Resorts, LLC, similarly had no role in operating, managing or hiring for the Moon Palace Resort in Mexico. Tradeco, Inc., a travel agency, is a Cayman Islands corporation that had no role in operating, marketing, managing or recruiting personnel for Moon Palace Resort in Cancún, Mexico. These entities’ location in Florida does not provide a general nexus to Florida sufficient to outweigh the other Kinney factors. See Tananta v. Cruise Ships Catering & Servs. Int’l, N.V., 909 So.2d 874 (Fla. 3d DCA 2004) (finding that the location of a corporate marketing arm in Florida was of no consequence in analyzing forum non convenience where it had nothing to do with the tort in the foreign forum); see also Bautista v. Cruise Ships Catering & Servs. Int'l., N.V., 350 F.Supp.2d 987, 991 (S.D.Fla.2003) (“In today’s climate of worldwide economics and the internet, there are few companies that have no connection with the United States. However, such a connection alone is insufficient to justify the United States’ becoming the Court for all tort disputes in the world.”). This is so particularly where the plaintiff is not a Florida resident and this action, which is essentially a tort action, finds most of the witnesses and documents necessary for trial to be located in the foreign forum. See Kerzner, 983 So.2d at 752.

We agree with the trial court’s analysis and application of the Kinney factors to the facts of this case and conclude that the court did not abuse its discretion by dismissing the action for forum non conve-niens.

Affirmed.

SHEPHERD, J., concurs.

ROTHENBERG, J.

(dissenting).

Simply put, the majority affirms the trial court’s order transferring a lawsuit filed by a United States citizen, who resides in California, against several Florida defendants on the basis of forum non conve-niens. Because the trial court and the majority failed to afford proper deference to the plaintiffs choice of forum, and the record reflects that the defendants failed to establish that Quintana Roo, Mexico, is an adequate forum under the facts and circumstances of this lawsuit, or that the private and public factors weigh in favor of litigating the plaintiffs causes of action in Mexico, I respectfully dissent.

THE FACTS

It is undisputed that the plaintiff, Shahla M. Rabie Cortez (“Cortez” or “Plaintiff’), was sexually assaulted by a masseuse while she was vacationing at the Moon Palace Golf and Spa Resort in Cancún, which is located in Quintana Roo, Mexico. The masseuse confessed to sexually assaulting Cortez. Cortez initially filed suit against several entities, including various Florida defendants, Mexican defendants, and her travel agent. In response to the travel agent’s motion for summary judgment and the Mexican defendants’ motion to dismiss for lack of personal jurisdiction, Cortez voluntarily dismissed her claims against the Mexican defendants and her travel agent. “The Florida Defendants,” as they refer to themselves in this action (Palace Resorts, Inc., Palace Resorts, LLC, and Tradco Ltd., Inc.), filed a motion to dismiss based on forum non conveniens, which was granted by the trial court and is the subject of this appeal.

Palace Resorts, Inc., is a Delaware corporation; Palace Resorts, LLC is a Delaware limited liability company, and Tradco, Ltd., Inc., is a foreign corporation. All three defendants are doing business in Florida and are headquartered at the same Miami address. The complaint charges the Florida Defendants with negligent vacation packaging.

In support of their motion to dismiss, the Florida Defendants submitted various items including an affidavit executed by their expert Manuel Garcia Pimentel Cara-za, the deposition of Mr. Caraza taken by the Plaintiff, and an affidavit executed by Lourdes Rodriguez, the Florida Defendants’ Chief Operating Officer. The Florida Defendants, by way of Ms. Rodriguez’s affidavit, sought dismissal of this action by stating, after qualifying her statements as “true and correct and are made upon [her] personal knowledge,” that neither Palace Resorts Travel, Inc., d/b/a Palace Resorts, Inc., nor Palace Resorts, Inc:

13. received any funds of any kind as a result of Plaintiffs stay at the Moon Palace Golf and Spa Resort.
14. were involved in the booking or reservation of Plaintiffs stay at the Moon Palace Golf and Spa Resort.
15. does business, or have ever done business as ... Palace Resorts....
and that
19. all booking and reservations for the Palace Resorts Hotels in Mexico— including the Cancún Palace Hotel — are done in Mexico through the “General Reservation Center” located at the Moon Palace, Cancun, Mexico. The reservations are booked by Palace Resorts, S.A. de C.V. [a Mexican corporation].
20. Any incident reports that were prepared by the Moon Palace Golf and Spa Resort’s management and any company documents relevant to the incident described in Plaintiffs Complaint are all located in Mexico.

The Florida Defendants and Ms. Rodriguez now admit that each and every one of these statements was false.

The record in this case reflects that the Florida Defendants and Ms. Rodriguez have a long history of deceiving or attempting to deceive the courts of this State by submitting affidavits with similar false statements, but which they now admit were false. See Weiss v. Palace Resorts, Inc., No. 07-03385 CA 11; Discipio v. Operadora Palace Resorts, S. de R.L. de C.V., No. 06-26242 CA 10; Shapiro v. Palace Resorts, Inc., No. 06-23603 CA 8; Kobryn v. Palace Resorts, Inc., No. 06-06555.

What has now been established by the Plaintiff is that Miami is the operational, managerial, and marketing center for the entire Palace Resorts group and that the Florida Defendants control: marketing; sales to individuals, groups, and travel agents; timeshare programs; customer service; press relations; and finance for the entire Palace Resorts Group. The Florida Defendants manage the entire U.S. market, which represents seventy percent of Palace Resorts’ business; the president of most of the Palace companies lives and works in Miami; and the Florida Defendants employ nearly one hundred employees in Miami. More importantly, the plaintiff alleges that: customer complaints are investigated by the Florida Defendants at their Miami corporate headquarters; the Florida Defendants issue refunds to unhappy customers, design vacation packages for all the Palace Resort hotels, approve all marketing literature, manage hotel websites, and issue all press releases at their Miami headquarters; and their Miami headquarters is the record-keeping center for the Mexican Palace Resorts hotels.

In addition to the affidavits and deposition submitted by the Florida Defendants, the Plaintiff submitted an affidavit of her expert, Ovalle Piedra. Although the affidavits of the two experts materially conflict, no evidentiary hearing was conducted, the trial court made no credibility determinations, and the trial court issued its order granting the Florida Defendants’ motion.

STANDARD OF REVIEW

In Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996) the Florida Supreme Court held that a trial court’s ruling granting or denying a motion to dismiss on forum non conveniens grounds is reviewed for an abuse of discretion. However, this Court has taken the position that “the Kinney standard has evolved into an abuse of discretion/de novo standard, depending on the extent of the trial judges [sic] analysis and whether the appellate record is sufficient to allow the reviewing court to reach its own conclusions.” Telemundo Network Grp., LLC v. Azteca Int’l Corp., 957 So.2d 705, 709 (Fla. 3d DCA 2007) (quoting Kawasaki Motors Corp. v. Foster, 899 So.2d 408, 410-11 (Fla. 3d DCA 2005), citing Aerolineas Argentinas, S.A. v. Gimenez, 807 So.2d 111, 115 (Fla. 3d DCA 2002) (Sorondo, J., concurring) citing Bacardi v. De Lindzon, 728 So.2d 309 (Fla. 3d DCA 1999), approved, 845 So.2d 33 (Fla.2002)).

While the other district courts of appeal have not adopted the abuse of discretion/de novo standard employed by this district, such a standard makes perfect sense when, as here, no live testimony was presented and where the trial court’s order is, for the most part, conclusory. For example, in making its finding as to the adequacy of the foreign forum, the trial court’s order states only the following:

[B]asked on the affidavits supplied by Defendants, the Court is of the opinion that the State of Quintana Roo, Mexico, will provide Plaintiff with an adequate remedy. Moreover, the parties will be provided with adequate access to evidence and relevant sites. As such, this Court finds that Cancún, State of Quin-tana Roo, Mexico is an adequate forum.

BURDEN OF PROOF

It is well settled law that the party moving to dismiss an action on forum non conveniens grounds, which in this case is the Florida Defendants, bears the burden to prove that “a satisfactory remedy may be more conveniently sought in a jurisdiction other than the [plaintiffs chosen forum].” Fla. R. Civ. P. 1.061. This burden extends to each element of the Kinney analysis, Telemundo, 957 So.2d at 709; Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 so.2d 912, 917 (Fla. 4th DCA 2008), and “unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.” Kinney, 674 So.2d at 89 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1946)); see also Sinochem Int’l. Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (holding that a defendant invoking forum non conveniens “bears a heavy burden in opposing the plaintiffs chosen forum”).

The Kinney factors that the Florida Defendants must prove are:

(1) ... that an adequate alternative forum exists which possesses jurisdiction over the whole case, including all of the parties;
(2) ... 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] factors of public interest tip the balance in favor of trial in the alternate forum; and
(4) ... plaintiff[ ] can reinstate [her] suit in the alternate forum without undue inconvenience or prejudice.

Fla. R. Civ. P. 1.061(a).

THE FLORIDA DEFENDANTS DID NOT MEET THEIR BURDEN

A. Availability and adequacy of the foreign forum

(1) The availability prong

The trial court found that Quintana Roo, Mexico, is an available forum for purposes of a forum non conveniens analysis because the Florida Defendants agreed to process and jurisdiction in Mexico, and waived any statute of limitations defense. The trial court, however, failed to consider or address whether the court in Quintana Roo would have jurisdiction over the Florida Defendants since these defendants are not domiciled in Mexico. The Plaintiffs expert, Ms. Piedra, averred that the criteria to determine jurisdiction in Mexico in a “personal action” such as this one is the domicile of the defendant, and given that the Florida Defendants are located in Florida, Quintana Roo will not accept jurisdiction over them. The Florida Defendants’ expert, Mr. Caraza, averred that Quintana Roo would have personal jurisdiction over the Florida Defendants if they operate or own a business in Quintana Roo or they do business within the state and submit to its jurisdiction. The trial court’s order fails to address or resolve the conflicting evidence. Because: neither expert testified at the hearing; the trial court made no credibility determinations; the record reflects that the Florida Defendants’ expert could not recall the last time he had handled a civil case in Mexico but believed it was in the 1980’s; and the Florida Defendants’ expert testified he never litigated in a court in the State of Quintana Roo, but was basing his testimony on the generalized law in the country of Mexico, the Florida Defendants did not satisfy their burden of proof as to whether Quintana Roo is an available forum.

(2) The adequacy prong

The trial court’s order regarding this prong of the Kinney analysis provides no analysis and makes no findings. Instead, the order states in conclusory fashion that “based on the affidavits by Defendants, the Court is of the opinion that the State of Quintana Roo, Mexico, will provide Plaintiff with an adequate remedy.” (emphasis added). Although the trial court’s order is legally deficient, failure to perform the requisite analysis or to make specific findings is not always fatal on appellate review. See Wood v. Bluestone, 9 So.3d 671, 673 (Fla. 4th DCA 2009) (finding that “[i]f the record is sufficient to review the trial court’s ultimate determination, the scarcity of the text of the order will not matter); R.J. Reynolds Tobacco Co. v. Carter, 951 So.2d 105, 107 (Fla. 3d DCA 2007) (concluding that although the trial court failed to address the Kinney factors, because the record was sufficiently developed and the facts relative to the issue of forum non conveniens were basically undisputed, remand was unnecessary). In the instant case, however, the trial court’s determination regarding the adequacy prong of the Kinney analysis is not only defective because it is a concluso-ry statement devoid of any findings, it is fatally flawed because it is based solely on the affidavits supplied by the Florida Defendants, and the facts related to forum non conveniens were disputed.

There are four issues that are fatal to the trial court’s reliance on the Florida Defendants’ affidavits as the sole source for its conclusions. First, as already stated, the Florida Defendants’ Chief Operating Officer, Lourdes Rodriguez, was deposed subsequent to her affidavit, and in her deposition she admitted that many of the statements she made under oath in her affidavit were false. It was, therefore, error to rely on the false statements contained in Ms. Rodriguez’s affidavit. Second, Mr. Caraza, the Florida Defendants’ expert, was also deposed and the reliability of his affidavit statements were called into question by his deposition answers. Third, Mr. Caraza’s affidavit statements were further called into question by the counter-affidavit submitted by Ms. Piedra, the Plaintiffs expert. Fourth, many material statements made by Ms. Piedra in her affidavit regarding the adequacy of Quinta-na Roo, as a forum to address the Plaintiffs claims, were unrefuted and therefore should have been considered by the trial court. The failure to perform the requisite analysis and to consider all the evidence submitted based on this record was a clear abuse of discretion.

By basing its adequacy determination solely on the affidavits submitted by the Florida Defendants, the trial court clearly abused its discretion because some of the evidence contained in the affidavit submitted by Ms. Piedra, the Plaintiffs expert, was unrefuted, and some of the evidence was subsequently confirmed by the Florida Defendants’ expert in his deposition. For example, Ms. Piedra stated that the nature of the Plaintiffs injury will require that the Plaintiff adapt her legal theory to Mexican causes of action that have rarely, if ever, been employed in the alternative forum, and she was “not aware of a single case brought as a civil action in the Courts of Mexico involving allegations of personal injury as a result of sexual assault.” (emphasis added). These matters are handled criminally in Mexico. The Florida Defendants’ expert confirmed during his deposition that he was also unaware of such a case. This lack of precedent, and reliance on a theoretical possibility of recovery, casts doubt on the adequacy of Quintana Roo, Mexico, as a forum for Cortez’s causes of action. See Telemundo, 957 So.2d at 710 (concluding that substitute causes of action in the alternate forum amounted to no remedy at all, in part based on lack of precedent). Accord Jackson v. Grupo Industrial Hotelero, SA., No. 07-22046, 2008 WL 4648999, *10-11 (S.D.Fla. Oct.20, 2008) (denying a motion to dismiss based on forum non conveniens in an intellectual property dispute where the causes of action and remedies at issue were unsettled in Mexico).

Even if Cortez was able to proceed in Mexico, Ms. Piedra in her affidavit and Mr. Caraza in his deposition, both testified that the standard of proof in such cases would be exceptionally high, and to prove significant facts in a non-commercial case, such as this tort case, normally requires the testimony of two witnesses. The whereabouts of the masseuse who sexually assaulted Cortez and who is the only other witness to the assault, is unknown, leaving Cortez without a second witness to corroborate her testimony. Although the masseuse’s admissions would be admissible in Florida, the Florida Defendants presented no evidence that his hearsay statements would be admissible in Quintana Roo.

Also not considered by the trial court, and uncontested in the record, was Ms. Piedra’s sworn testimony that damages for a cause of action based on negligent vacation packaging or selection of supplier, where the supporting facts rely on injury caused by a sexual assault, would likely be unavailable in Quintana Roo. Additionally, damages for such an action, if maintainable, would be limited to between $5,000 and $15,000, and because of the low damages and difficulty in proof, finding counsel to represent Cortez would be difficult. Moreover, Ms. Piedra testified that firms practicing personal injury law are rare. An award of $5,000 to $15,000 would not even cover Cortez’s costs, which include transportation to and lodging in Mexico to litigate this case.

Thus, the trial court’s reliance solely on the affidavits submitted by the Florida Defendants was error and its conclusory determination that Quintana Roo is an adequate alternate forum is unsupported by the record. An alternate forum is inadequate where “the remedy offered by the other forum is clearly unsatisfactory ... [and] if the remedy there clearly amounts to no remedy at all.” Kinney, 674 So.2d at 90-91. Cortez presented evidence that Quintana Roo was an inadequate forum and that any meaningful recovery was illusory. Because the Florida Defendants failed to overcome this evidence, the trial court abused its discretion in finding that the alternate forum was adequate.

B. Private interests

In weighing the private interests, “the reviewing court always should remember that a strong presumption favors the plaintiffs choice of forum. Thus, the presumption can be defeated only if the relative disadvantages to the defendant’s private interests are of sufficient weight to overcome the presumption.” Kinney, 674 So.2d at 91; see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) (finding that a plaintiff’s choice of forum should rarely be disturbed “unless the balance is strongly in favor of the defendant”) (emphasis added). Here, because Cortez resides in California, and she filed her complaint in Florida, where the Florida Defendants are located, the trial court treated her as a foreign plaintiff and afforded little deference to her chosen forum. This was error.

Before denying a United States citizen access to the courts of this country, the reviewing court must “require positive evidence of unusually extreme circumstances, and should be thoroughly convinced that material injustice is manifest.” SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1101 (11th Cir.2004) (quoting La Seguridad v. Transytur Line, 707 F.2d 1304, 1308 n. 7 (11th Cir.1983)). Keeping this case in Florida would not be extreme, and it would not cause manifest injustice to the Florida Defendants. Cortez is a United States citizen, and the defendants are Florida defendants. Cortez filed her lawsuit in Florida where the Florida Defendants have their headquarters and where they conduct substantial business and operate and manage the Palace entities.

As this Court noted in Cardoso v. FPB Bank, 879 So.2d 1247, 1250 (Fla. 3d DCA 2004), “a forum non conveniens argument coming from a party sued where [it] resides is both puzzling and strange.” The Florida Defendants, with a straight face, claim that Quintana Roo, Mexico, is a more convenient forum to litigate a United States citizen’s negligent vacation packaging claim against them, although Miami is where their corporate headquarters is located, all the Palace Resort hotels’ vacation packages are approved, and all customer complaints are investigated. Because Miami is the operational, managerial, and marketing center for the entire Palace Resorts group, the Florida Defendants control marketing and sales, and Miami is the record keeping center for the Mexican Palace Resorts hotels, it is difficult to understand how, based on Cortez’s causes of action, Mexico would be a more convenient forum.

Coupled with these circumstances, the Plaintiffs allegations regarding her reasons for suing in Florida, and the evidence in this record, are sufficient to preserve deference to her forum choice. “Where a corporation is actually carrying on business in the state and plaintiffs make an offer of proof concerning the defendants’ in-state activities which supports the allegations that the tortious conduct occurred in the state, the corporate connection to the state is more than tenuous, and weighs against dismissal.” See Picketts v. Int’l Playtex, Inc., 215 Conn. 490, 576 A.2d 518, 525 (1990). As a result, Cortez’s forum choice deserved great deference. See SME, 382 F.3d at 1101 (holding that the “presumption in favor of the plaintiffs’ initial forum is at its strongest when the plaintiffs are citizens, residents, or corporations of this country); Iragorri v. United Techs. Corp., 274 F.3d 65, 71-72 (2d Cir.2001) (en banc) (concluding that when considering what degree of deference to accord a United States plaintiffs choice of forum where the forum is different from the one in which the plaintiff resides, a sliding scale should be used. The more it appears that the plaintiffs choice of forum was based on reasons the law recognizes as valid, the greater the deference will be given to the plaintiffs forum choice).

In addition, the private interest element involves practical concerns related to access to evidence, access to witnesses, adequate enforcement of judgments, and the practicalities and expenses associated with the litigation. Kinney, 674 So.2d at 91. There are three deficiencies in the trial court’s order that show the trial court erroneously assessed the practical concerns relating to litigating this case in Quintana Roo, Mexico.

First, although not controlling regarding adequacy of the forum, Cortez’s undisputed difficulty in obtaining counsel on a contingency basis is relevant to our analysis of whether Quintana Roo is an inconvenient forum for this suit. See Wilson v. Island Seas Invs., Ltd., 590 F.3d 1264, 1271-72 (11th Cir.2009) (reversing a dismissal on forum non conveniens for among other reasons, the trial court’s failure to consider financial hardship from prosecuting in the alternative forum as part of the private interest factors). There is no evidence refuting Cortez’s contention that a contingency retainer would be hard to secure because of the nature of her case, and moreover, the Florida Defendants’ expert conceded that such a retainer might not suffice and an attorney might require ongoing payment of costs and fees. In contrast, the Florida Defendants have not provided any specific evidence that trying this case in Florida would be cost prohibitive.

Second, the trial court’s determination regarding the location of witnesses was without support in the record. The record contains no specific evidence showing trial in Mexico would alleviate hardship regarding witnesses relevant to the Florida causes of action. See Banco Inversion, S.A. v. Celtic Fin. Corp., S.A., 907 So.2d 704, 710 (Fla. 4th DCA 2005) (finding the private interests supported denying a forum non conveniens motion where “travel posed no more of a hardship on either party”). If necessary, Mexican witnesses can be deposed in Mexico, and witnesses who are employed or affiliated with the Florida Defendants are within the Florida Defendants’ control and can be made available here or in Mexico. Cortez, who bears the burden of proving her case, has not argued difficulty in bringing Mexican witnesses to Florida, or California witnesses to Florida. There is no specific evidence that the Florida Defendants would suffer additional prejudice in bringing witnesses to Florida for deposition or trial, and the trial court incorrectly summarily concluded in its order “witnesses from Mexico will need to be called to testify.” See Picketts, 576 A.2d at 527; accord A.D.M. Prods., Inc. v. Solomon, 831 So.2d 259, 260 (Fla. 3d DCA 2002) (“The trial court must evaluate the relevancy and materiality of the potential testimony that a listed witness may bring to the issues.”). Florida law also permits testimony at trial through videotaped or transcribed depositions under appropriate circumstances. And the record shows it may be difficult to compel witnesses to testify in Mexico due to constraints on the process of compelling testimony in Mexico.

Third, the trial court placed too much weight on the location of documents, and erroneously shifted the burden to Cortez, when it concluded that “Plaintiff has not made any showing that such documents exist in Florida,” while “documents related to the incident ... are located in Mexico.” It is not the Plaintiffs burden to show documents are located in Florida, and moreover, the trial court incorrectly stated there were no documents in Florida. The record already contains emails, an incident report from the Plaintiff on the Mexican resort’s letterhead, and various other materials relating to the incident. The location of documents, in the present era of electronic transmission and storage, should not defeat the Plaintiffs forum choice unless there is a specific showing that documents cannot feasibly be accessed outside their place of origin. There was no such showing here. In fact, it is likely that additional relevant documents located in Mexico could be obtained by the parties regardless of where they are located. And, as stated earlier, the Florida Defendants’ record keeping center is located in Miami. Thus, the trial court’s conclusion regarding the location of documents was apparently based on the false statements made by the Florida Defendants about their operations in their affidavits, which should not have been considered because of their admitted falsity.

C. Public interests

Although the trial court considered Florida’s public interest in connection with “punishing wrongdoers,” it failed to account for the Florida Defendants as wrongdoers, and instead focused on the attacker and the Mexican resort. The trial court correctly stated that public interest in this context relates to “whether the case has a general nexus to the forum sufficient to justify the forum’s commitment of judicial time and resources to it.” See Kinney, 674 So.2d at 92. In this case, the public interest factors as to Cortez’s claims against the Florida Defendants, not the Mexican resort or others in Mexico who may also be subject to suit there, favor keeping Florida as the forum. The Florida Defendants do business in Florida in a manner directly relevant to this suit because their actions allegedly occurred in Florida. Additionally, the Florida Defendants have regularly appeared in the Florida courts to address issues regarding their operations. Florida also has an interest in ensuring that harmful actions originating in Florida, which may violate duties imposed by Florida law, are properly addressed in Florida courts. Thus, as relevant here, the public interest favors keeping this case in Florida.

The public interest against permitting forum shopping, a practice involving the filing of cases with limited connections to Florida for strategic reasons, is not affected if this case remains in Florida. This case does not appear to be the product of improper forum shopping. This is not a case where the plaintiff sued in the alternative forum and Florida, but claims the alternative forum is inadequate. Cf. Aerolineas Argentinas, S.A. v. Gimenez, 807 So.2d 111, 114 (Fla. 3d DCA 2002). Cortez has not filed suit against the Florida Defendants in Mexico. Nor is this a case where an out-of-state Plaintiff, suing for a tort unrelated to marketing, sued a defendant whose only tie to Florida was maintaining an office “for the purpose of marketing its business pursuant to a joint venture.” Cf. Kerzner Int’l Resorts, Inc. v. Raines, 983 So.2d 750, 751 (Fla. 3d DCA 2008). Rather, Cortez alleges the Florida Defendants took actions in furtherance of their breaches of duties to Cortez either wholly or partly in Florida. See Chiquita Int’l Ltd. v. Fresh Del Monte Produce, N.V., 690 So.2d 698, 699 (Fla. 3d DCA 1997) (holding that a tort suit based on a scheme allegedly “hatched” in Florida could survive a forum non conveniens attack). Although Cortez is a California resident who was harmed on vacation in Mexico, the parties who allegedly engineered the package that led her to vacation in Mexico are in Miami, and Cortez sued based on their participation and benefit from the vacation package.

In Cortez’s complaint, Florida’s connection to this case is alleged as the base from which the Florida Defendants harmed Cortez, in violation of Florida law. According to Cortez, the Florida Defendants’ negligence led to her sexual assault. Based on her allegations, it is likely some or all of their actions occurred at or through facilities located in Florida because the Florida Defendants “conduct[ ] business on a cooperative basis” with their Mexican affiliates. Consequently, this is not a case where unspecified, and perhaps unrelated “business operations” or a company’s “principal place of business” form the only tie to Florida in a dispute between out-of-state parties. Cf. Resorts Int’l, Inc. v. Spinola, 705 So.2d 629, 629 (Fla. 3d DCA 1998); see also Hilton Int’l Co. v. Canillo, 971 So.2d 1001, 1004 (Fla. 3d DCA 2008); Tananta v. Cruise Ships Catering & Servs. Int’l, N.V., 909 So.2d 874, 878-79 (Fla. 3d DCA 2005).

Further, allowing Cortez to proceed in Florida does not extend the Florida courts’ reach to a dispute among foreign parties with no ties to Florida worthy of regulating. This is not a case where the accused defendants have “practically no connection” to Florida and disputed events remain to be discovered abroad. Cf. Kawasaki Motors Corp. v. Foster, 899 So.2d 408, 411-12 (Fla. 3d DCA 2005). See also WEG Industrias, S.A. v. Compania De Seguros Generales Granai, 937 So.2d 248, 254 (Fla. 3d DCA 2006) (finding forum non conveniens dismissal appropriate because Florida’s connection was merely “fortuitous”). In this case, there is no need to resolve disputes regarding the sexual assault that occurred in Mexico, because there is no dispute, based on the masseuse’s confession to having committed the offense, that Cortez was sexually assaulted in Mexico. Instead, the Florida Defendants’ actions will be the focus of Cortez’s lawsuit.

Consequently, the trial court erred when focusing on the “wrongdoers” in Mexico. To meet her burdens at trial, Cortez will need to offer evidence regarding the Florida Defendants’ actions. It is the actions of the Florida Defendants in failing to prevent the assault that will be at issue in Florida. Florida has a sufficient interest in determining whether, under Florida law, Florida-based companies that violate legal duties owed to their customers and harm them should be liable under Florida’s tort law.

D. Undue inconvenience or prejudice

Although the trial court’s order notes that the Florida Defendants agreed to service of process in Mexico and to waive any statute of limitations defense if the action was dismissed in Miami and re-filed in Mexico, the trial court’s order failed to obtain a similar stipulation by the Florida Defendants in the event Mexico concludes it has no jurisdiction over the matter. Cortez’s expert testified that a Mexican court is not required to take jurisdiction over non-domiciled parties. Although this was error, counsel for the Florida Defendants represented to this Court at oral arguments that they would execute such a stipulation if the trial court’s order is upheld. Consequently, that error has been cured.

CONCLUSION

The trial court erred, and its order granting the Florida Defendants’ motion to dismiss the lawsuit and send Cortez to Mexico to litigate her claims against the Florida Defendants, must be reversed because it is based on conclusions, not evidence, and the evidence does not support the conclusions made by the trial court. The trial court’s adequacy determination cannot be upheld where the trial court relied on an affidavit submitted by one defense witness who admitted that material representations in the affidavit were false, and another defense witness who subsequently modified the statements in his affidavit when he was deposed, and where material adequacy factors mitigating against Quintana Roo as an adequate forum were admittedly not considered by the trial court when making its determination.

The trial court also failed to “consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs initial forum choice.” Kinney, 674 So.2d at 90. Cortez is a United States citizen, who filed her lawsuit in Miami, Florida, against three Florida Defendants, who have a strong presence in Miami and where Cortez claims her causes of action against them initiated. Cortez cannot be denied access to the courts of this country absent a strong showing by the Florida Defendants that her lawsuit against them would result in substantial inconvenience for them to litigate in her choice of forum. They have not met that burden.

Lastly, although we need not consider the public interest factors because the Florida Defendants did not satisfy their burden in demonstrating that Quintana Roo, Mexico, is an adequate forum and that the private interests weigh in favor of disturbing Cortez’s choice of forum, the Florida Defendants’ motion should have been denied because the public interest factors clearly tip in favor of keeping this case in Florida. I, therefore, respectfully dissent from the majority opinion affirming the trial court’s order dismissing Cortez’s lawsuit on the grounds of forum non conveniens.

      . The Florida Rules of Civil Procedure added Rule 1.061 after Florida’s adoption of the federal doctrine of forum non conveniens in Kinney. The Florida Supreme Court in Kinney set forth a four-step analysis to determine whether an action should be dismissed on forum non conveniens grounds: (1) The court must establish whether an adequate alternate forum exists to try the case; (2) The trial judge must consider all relevant factors of private interest while recognizing the strong presumption against disturbing the plaintiffs' initial choice of forum; (3) If the trial judge finds the balance of private interests in equipoise or near equipoise, he or she must determine whether the factors of public interest tip the balance in favor of another forum; and (4) If the trial judge decides that the balance favors another forum, he or she must ensure that plaintiffs can reinstate their suit in the other forum without undue inconvenience or prejudice. The Court Commentary to the Rule states that Rule 1.061 should be interpreted in light of Kinney.

      . The dissent misapplies Judge Sorondo’s concurrence in Aerolineas Argentinas, S.A. v.
        Gimenez, 807 So.2d 111 (Fla. 3d DCA 2002), to suggest that that this Court must follow a mixed abuse of discretion/de novo standard of review in any forum non conveniens case in which the factual record is based on affidavits rather than live testimony. In Aerolíneas, Judge Sorondo stated that,
      [i]n Kinney, the Florida Supreme Court adopted the federal test for forum non con-veniens determinations and held that a trial court's ruling granting or denying a motion to dismiss on these grounds would be reviewed under an abuse of discretion standard. 674 So.2d at 93-94. This has evolved into an abuse of discretion/de novo standard, depending on the extent of the trial judge’s analysis and whether the appellate record is sufficient to allow reviewing courts to reach their own conclusions.

        See also Bacardi v. Lindzon, 728 So.2d 309, 312 (Fla. 3d DCA 1999); Kawasaki Motors Corp. v. Foster, 899 So.2d 408, 410-11 (Fla. 3d DCA 2005); WEG Industrias, S.A. v. Compania De Seguros Generales Granai, 937 So.2d 248, 253 (Fla. 3d DCA 2006). But this describes only a limited exception where the trial court did not address all of the Kinney factors, and where the reviewing court addressed the remaining factors for the first time on appeal. Ryder System, Inc. v. Davis, 997 So.2d 1133 (Fla. 3d DCA 2008). Otherwise, the standard of review remains abuse of discretion.

      . See In re Air Crash Disaster Near New Orleans, La., 821 F.2d 1147, 1165 (5th Cir.1987), the United States Court of Appeals for the Fifth Circuit defined the trial court’s duty in this area as follows:
      While we recognize that the decision to grant or deny a motion to dismiss for forum non conveniens is within the discretion of the district court, it should be an exercise in structured discretion founded on a procedural framework guiding the district court’s decisionmaking process .... our duty as an appellate court in reviewing forum non conveniens decisions is to review the lower court's decisionmaking process and conclusion and determine if it is reasonable; our duty is not to perform a de novo analysis and make the initial determination for the district court.

      . The alleged false representations referred to in the dissent were all part of the record and were before the trial court. It is not within our standard of review to analyze and reweigh this evidence.

      . According to Rule 1.061, the defendants are deemed to automatically stipulate that the action will be treated in Mexico as if it had been filed in Mexico on the same date it was actually filed in Florida. Also, the defendants in this case have all agreed to submit to the jurisdiction of Mexico. See Mursia Invs. Corp. v. Industria Cartonera Dominicana, 847 So.2d 1064, 1067 (Fla. 3d DCA 2003).

      ." ‘Private interests’ do not involve consideration of the availability or unavailability of advantageous legal theories, a history of generous or stingy damage awards, or procedural nuances that may affect outcomes but that do not effectively deprive the plaintiff of any remedy. Indeed, it is entirely irrelevant that the alternative forum does not duplicate or approximate the American jury system, so long as a fair mechanism for trial exists in a broad and basic sense.” Kinney, 674 So.2d at 91.

      . Of significant consideration is the fact that this incident occurred in Mexico; the witnesses and most of the evidence concerning the tort are all located in Mexico. The examining doctor and his report are in Mexico, the American Consulate report and the police report are located in Mexico, and the hotel employees associated with the event are all likely to be residents of Mexico.

      . (stating that ”[a]ll bookings and reservations for the Palace Resorts Hotels in Mexico are done in Mexico through the general reservation center located at Moon Palace, Cancun, Mexico; the reservations are booked by Palace Resorts, S.A. de C.V.”).

      . (stating that "[n]one of the [Florida] Defendants received funds of any kind as a result of Ms. Discipio's stay at the Aventura Spa Palace in Mexico”).

      . (stating that "[a]ll bookings and reservations for the Palace Resorts Hotels in Mexico are done in Mexico through the general reservation center located at Moon Palace, Cancun, Mexico; the reservations are booked by Palace Resorts, S.A. de C.V.,” the same representation made in the Weiss case).

      .(stating that “[a]ll bookings and reservations for the Palace Resorts Hotels in Mexico are done in Mexico through the general reservation center located at Moon Palace, Cancun, Mexico; the reservations are booked by Palace Resorts, S.A. de C.V,” as in the Weiss case, and stating that ”[n]one of the [Florida] Defendants received funds of any kind as a result of [Plaintiff's] stay," as in the Discipio case).

      . The public interest is only considered when "the advantages and disadvantages of the alternative forum will not significantly undermine or favor the private interests of any party” when compared with Florida, where the suit was filed. See Kinney, 674 So.2d at 91. Here, as to Cortez’s claims against the Florida Defendants, suit in Mexico would place Cortez at a substantial disadvantage, and thus the private interest inquiry settles the issue. Because the trial court considered the issue in its discretion, it is appropriate to address the trial court’s analysis on appeal as well.

      . The Florida Defendants swore in support of false statements offered to the trial court regarding important facts regarding the Florida Defendants' operations, which would have shown their ties to Florida were directly relevant to this case. Therefore, unlike in Tananta v. Cruise Ships Catering & Services International., the Florida Defendants did not "organize [their] empire” to avoid Florida. 909 So.2d 874, 881 (Fla. 3d DCA 2005). Rather, they lied about the facts to avoid a Florida forum. Cortez's complaint purports to target the Florida Defendants for actions occurring in whole or in part in Florida.


source: Caselaw Access Project

author: SUAREZ, J. SHEPHERD, J., RAMIREZ, C.J.,

license: Public Domain

text:
    DIAZ, REUS & TARG, LLP, a Florida limited liability partnership, and Redfield Investments, A.V.V., etc., Appellants, v. BIRD WINGATE, LLC II, etc., Appellee.
    No. 3D10-2267.
    District Court of Appeal of Florida, Third District.
    June 22, 2011.
    Rehearing Denied Sept. 2, 2011.
    Diaz, Reus & Targ, and Michael Diaz, Jr., Carlos F. Gonzalez, Brant C. Hada-way, and Sumeet H. Chugani, Miami, for appellants.
    Ronald P. Weil, Miami, for appellee.
    Before RAMIREZ, C.J., and SHEPHERD and SUAREZ, JJ.
   SUAREZ, J.

Redfield Investments, A.V.V., a Nether-land Antilles corporation (“Redfield”), appeals a non-final order granting Bird Wingate, LLC II’s (“Wingate”) motion to vacate voluntary dismissal with prejudice. We have jurisdiction. Fla. R. App. P. 9.180(a)(5). We affirm.

We give below a summary of the procedural facts of this case, not because most of the facts are relevant to the outcome of the issues on appeal, but because most of the facts are important to point out what can happen in a case where the rules are “expanded.” Wingate filed a complaint against Redfield in the circuit court in and for Miami Dade County for breach of contract, specific performance and tortious interference with a contract entered into between the parties for the purchase and sale of real property in Pinecrest, Florida. The day after filing the complaint, Wingate filed an identical complaint in the same circuit receiving a new case number and a new judge. At the same time, Wingate filed a voluntary dismissal with prejudice of the first filed complaint. Redfield was served with the second filed complaint. Redfield removed the case to federal court. Once in federal court, Redfield moved for summary judgment on the ground that the voluntary dismissal with prejudice taken in state court was an adjudication on the merits and, therefore, the complaint was barred by the doctrine of res judicata. Realizing the problem, Wingate filed a motion in state court to vacate the voluntary dismissal with prejudice and to convert it to a dismissal without prejudice. This motion to vacate was filed ex-parte under Wingate’s questionable theory that, as Redfield had not been served with the first filed complaint, Redfield was not required to have notice of this hearing, even though it was a party to the second filed identical complaint. The trial judge who was sitting in for the assigned judge, based on the facts and case law before him, including the fact that Wingate failed to inform him of the issue in federal court, appropriately granted the motion and vacated the voluntary dismissal with prejudice, converting it to a voluntary dismissal without prejudice. Redfield discovered the ex-parte order while reviewing the docket sheet. The substituting judge was then made aware of the ex-parte order, stated that Redfield was a named party and was entitled to notice, and reinstated the voluntary dismissal with prejudice concluding that the assigned trial judge should resolve the issue.

The only issue on appeal arises from the next procedural step taken. An evidentia-ry hearing on the motion to vacate the voluntary dismissal with prejudice was heard before the judge originally assigned to this case. At the evidentiary hearing, the judge noted two affidavits: one filed by the attorney for Wingate and the other by the paralegal in his office. In sum, the two affidavits stated that there was no intent on the attorney’s part to take a voluntary dismissal with prejudice and that the paralegal, inadvertently, made the notice “with prejudice,” knowing that it should have been “without prejudice.” The attorney then stated that, due to the amount of paperwork on his desk, he signed the pleading without noticing that it was a notice of voluntary dismissal with prejudice. We find that, based on the only evidence before the trial judge, the two affidavits, the trial judge did not abuse his discretion by granting the motion and vacating the voluntary dismissal with prejudice — converting it to a dismissal without prejudice. Case law is replete in the State of Florida that the power to correct clerical exception of error in a notice of voluntary dismissal lies in Florida Rule of Civil Procedure 1.540(b). The trial judge held the required evidentiary hearing and, based on the only evidence presented, the two affidavits, properly granted the motion. See Miller v. Fortune Ins. Co., 484 So.2d 1221 (Fla.1986); see also Watson v. Anderson, 492 So.2d 1046 (Fla.1986); Bender v. First Fid. Sav. & Loan Ass’n, 463 So.2d 445 (Fla. 4th DCA 1985), approved, 491 So.2d 276 (Fla.1986). The other procedural issues in this case did, not and cannot enter into the decision of this sole issue.

We affirm and insert herein with total agreement the last paragraph from the trial judge’s well-written order on rehearing:

Although this Court is troubled by the procedural machinations undertaken by counsel herein, the court believes and finds wholly credible plaintiffs counsel’s affidavit, which he stood by at the hearing, asserting that he never intended to obtain a dismissal with prejudice in this case.

Affirmed.

SHEPHERD, J.,

concurring specially.

The decision of the trial court relieving Wingate from counsel’s (perhaps, more accurately stated, his paralegal’s) error in the drafting of a voluntary dismissal in this case was correct. In fact, this is one of those rare cases where it was the only possible decision. See Miller v. Fortune Ins. Co., 484 So.2d 1221 (Fla.1986) (approving Shampaine Indus., Inc. v. S. Broward Hosp. Dist., 411 So.2d 364 (Fla. 4th DCA 1982)); see also Watson v. Anderson, 492 So.2d 1046 (Fla.1986); Pino v. Bank of N.Y. Mellon; 57 So.3d 950 (Fla. 4th DCA 2011); Wells Fargo Bank, NA v. Haecherl, 56 So.3d 892 (Fla. 4th DCA 2011); Lee & Sakahara Assocs., AIA, Inc. v. Boykin Mgmt. Co., 678 So.2d 394 (Fla. 4th DCA 1996); Bender v. First Fid. Sav. & Loan Ass’n 463 So.2d 445 (Fla. 4th DCA 1985), approved, 491 So.2d 276 (Fla.1986).

Nor were the rules “expanded” to reach this result. Counsel for Wingate employed the correct rule, deployed it, and obtained the relief for his client to which it indubitably was entitled.

The only legerdemain in this case — and the event I suspect is the source of my colleagues’ torment — was counsel’s error in not giving notice of his motion and hearing to the Diaz Reus law firm, as unequivocally required by Florida Rule of Civil Procedure 1.080(a), which states: “Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party.” This lapse, immaterial to the achievement of the correct result in the case, may be a matter for referral of counsel to The Florida Bar. However, the client should not pay the ultimate penalty for its counsel’s wrongdoing. See Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993) (finding dismissal with prejudice would in effect punish the litigant instead of his counsel, who was neglectful).

The cases cited by the dissent as a “must” to consider in a proper decision of this case do not call for a different result. Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68 (Fla.1978), the “first” of the cases cited, is inapposite. Unlike our ease, the plaintiff in Randle-Eastern did not err in the drafting of her dismissal document. Rather, the plaintiff did not appreciate the consequence of the filing— that her claim would be forever barred by the statute of limitations. Id. at 69. Our case, in contrast, involves a drafting error. Florida Rule of Civil Procedure 1.540(b)(1)’s main purpose — allowing a court to relieve a party or its legal representative from a “mistake” or “inadvertence, surprise, or excusable neglect”— was designed for cases such as this. See Viking Gen. Corp. v. Diversified Mortg. Investors, 387 So.2d 983, 985 (Fla. 2d DCA 1980) (“The mistake envisioned by the rule is the type of honest and inadvertent mistake made in the ordinary course of litigation ... and is generally for the purpose of setting the record straight.”).

Miller v. Fortune Insurance Co., 484 So.2d 1221 (Fla.1986), the dissent’s other cited case, supports affirmance in this matter. The facts in Miller are identical to those in our case:

Miller’s attorney filed a voluntary motion to dismiss a suit in county court against Fortune “with prejudice.” Eleven months later, Miller moved the trial court to strike “with prejudice” and substitute “without prejudice.” The motion cited to Florida Rule of Civil Procedure 1.540(b) as authority for the change. Ground for the motion was “secretarial error”-supporting affidavits of the attorney and his secretary stated that standard office procedure was to prepare and file voluntary dismissals “without prejudice” unless otherwise specified by the attorney. The secretary swore she mistakenly typed “with prejudice” and the attorney swore he relied on the standard office policy and failed to catch the error.

Id. at 1221-22. Explaining that Randle-Eastern was inapposite to a case of this type, the supreme court held Rule 1.540(b) confers on trial courts the power to correct “substantive clerical errors” such as this in a voluntary notice of dismissal. Id. Significantly, the court stated, “Rule 1.540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out under the rule,” regardless of the underlying consequences. Id. at 1224 (citing Shampaine, 411 So.2d at 864).

The dissent’s emphasis on the plaintiffs motive for seeking to expunge the language “with prejudice” from its dismissal filing in this case is misplaced, as even it concedes the right of a litigant to “switch horses” to obtain a different “mount” midstream “is a strategy [ ] not prohibited by the rules or the case law.”

On this reasoning, I join the opinion of the court.

RAMIREZ, C.J.,

dissenting.

I dissent with the result reached in this case. The dismissal with prejudice by counsel, although professedly the result of excusable neglect, was in reality the result of counsel’s strategic decision to manipulate Florida Rule of Civil Procedure 1.420(a), a rule allowing for the voluntary dismissal of actions.

Appellee’s counsel filed two identical complaints for the sole and admitted purpose of picking the more desirable judge to whom the case was assigned. He would then dismiss the case assigned to the less desirable judge and proceed on the other. The wisdom of this strategy is questionable. Counsel must pay two filing fees and forego the ability to take a subsequent voluntary dismissal should the occasion arise for such action, assuming counsel for the defendant discovers the existence of the prior-filed case. It is a strategy, however, not prohibited by the rules or the case law. In Patterson v. Allstate Insurance Company, 884 So.2d 178, 180 (Fla. 2d DCA 2004), the court summarized a party’s right to voluntarily dismiss an action:

Florida Rule of Civil Procedure 1.420(a) ... gives plaintiffs the right to voluntarily dismiss their action at any time “before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court.” Until the line drawn by this rule is crossed, the plaintiffs right to a voluntary dismissal is “absolute.” Fears v. Lunsford, 314 So.2d 578 (Fla.1975).

In Service Experts, LLC v. Northside Air Conditioning & Electrical Service, Inc., 56 So.3d 26, 2010 WL 4628567 (Fla. 2d DCA Nov.17, 2010), the court further explains that “[tjhere are limited exceptions to a plaintiffs ‘absolute’ right to take a voluntary dismissal as a matter of right: (1) if there is fraud on the court, (2) if the defendant can establish the common law exception to the right of voluntary dismissal, or (3) if the plaintiff dismisses the case at a stage which is deemed the equivalent of a summary judgment.”

Our decision must be. made in light of two Florida Supreme Court cases. The first is Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), which considered “what would happen if a plaintiff who had taken a voluntary dismissal later realized that the opportunity to relitigate with the defendant was foreclosed, and attempted to correct the earlier tactical error by asking the trial judge for permission to be relieved of the dismissal.” Id. The Randle-Eastern case would clearly deny relief to the appellee, as the court stated in no uncertain terms that “a voluntary dismissal under Rule 1.420(a)(1)(i) divests the trial court of jurisdiction to relieve the plaintiff of the dismissal.” Id. at 69.

The second case we must consider is Miller v. Fortune Insurance Company, 484 So.2d 1221 (Fla.1986). There, the Florida Supreme Court retreated from the expansive language in Randle-Eastern, and “h[e]ld that the limited jurisdiction conferred on the courts by rule 1.540(b) to correct errors includes the power to correct clerical substantive errors in a voluntary notice of dismissal.” 484 So.2d at 1224. In Miller, as in our case, the dismissal was with prejudice, as opposed to without prejudice, as a result of secretarial error. Thus, superficially, Miller is on all fours with our case. Miller, however, stated that:

We adhere to the principle that “[i]t has never been the role of the trial courts of this state to relieve attorneys of their tactical mistakes. The rules of civil procedure were never designed for that purpose, and nothing in Rule 1.540(b) suggests otherwise.” Randle, 360 So.2d at 69.

Id. at 1223. Our decision then hinges on whether what happened here was a tactical mistake or a secretarial error. I believe it was a tactical mistake. The whole scheme of filing two suits and dismissing the one falling before the less desirable judge was a quintessential tactical scheme. Admittedly, the scheme was botched, as the trial court found, through excusable neglect. But it was the direct result of the attorney’s stratagem of filing two suits to engage in what was nothing other than judge-shopping.

Counsel here filed two suits and before attempting service, dismissed one of those suits. Defense counsel only learned of the existence of this prior suit by chance. When he discovered the existence of the prior suit, he also learned that the dismissal had been with prejudice. Thus, defense counsel moved to dismiss the second action as res judicata.

Confronted with this motion, counsel for the appellee filed an ex parte motion to correct the dismissal from “with prejudice” to “without prejudice.” It was done ex parte ostensibly because no appearance or other filing had been made in the dismissed action. Yet counsel knew full well that the appellants were represented by counsel, that the matter was hotly contested, and that the erroneous dismissal was being used as grounds for a dismissal of the second action as res judicata. At oral argument, attorney Ronald Weil, an experienced lawyer, unapologetically tried to justify his actions by arguing that technically nothing had been filed in the previously dismissed action. In my view, his action was indefensible because he knew that the defendant was being represented in the same, identical matter, only under a different case number.

The judge that granted the ex parte motion was never informed that the defendants were represented by counsel in the same, identical litigation. Counsel for the appellant had to file a motion for reconsideration, to which counsel for appellee had the effrontery of arguing that appellants had no standing.

I would reverse the trial court because I believe the dismissal with prejudice was nothing more than a botched tactical ploy.

      . Although not really violative of the Florida Rules of Civil Procedure, it is definitely a form of "forum shopping.”


author: COHEN, J.

text:
    EDWARD T. BYRD & COMPANY, INC., Appellant, v. WPSC VENTURE I, Appellee.
    No. 5D10-561.
    District Court of Appeal of Florida, Fifth District.
    June 24, 2011.
    Rehearing Denied Aug. 5, 2011.

      A. Brian Phillips of A. Brian Phillips, P.A., Orlando, for Appellant.
    Steven M. Fahlgren of Law Offices of Steven M. Fahlgren, P.A., Hilliard, for Ap-pellee.
   COHEN, J.

Edward T. Byrd & Company, Inc. (“Byrd”), sued WPSC Venture I (“WPSC”) under theories of breach of contract and quantum meruit to recover a mortgage brokerage fee it allegedly earned for obtaining a $21 million loan commitment to refinance WPSC’s existing mortgage on a shopping center. On cross-motions for summary judgment, Byrd contended that WPSC breached the contract by failing to pay the fee despite the loan’s failure to close, and WPSC countered that no fee was payable because the application it unilaterally signed did not meet the requirements of the Mortgage Brokerage and Mortgage Lending Act (“MBMLA” or “Act”). We affirm the trial court’s final judgment entered after it granted WPSC’s motion for final summary judgment and denied Byrd’s motion.

WPSC signed an application for a mortgage loan commitment with Byrd in order to refinance an existing mortgage loan due to mature in December 2004. Timing was critical for the shopping center to continue in business. Byrd obtained a loan commitment, which WPSC approved. Despite extensions to the closing date from July 14, 2004, to September 9, October 9, and, finally, October 18, 2004, no closing occurred due to problems that ensued after the FBI arrested Edward Byrd on criminal charges. Mr. Byrd immediately placed the company for sale and difficulties arose concerning its status as a servicing agent for the lender and whether it would remain in business. Byrd was dissolved and after reinstatement, it filed suit to obtain the mortgage brokerage fee.

The narrow issue on appeal is whether an individual coborrower, cosignor, or guarantor to a commercial mortgage loan is a “borrower” under the Act. This issue is implicated because Robert Miller, the president of one of WPSC’s general partners, was required to execute a personal guaranty to indemnify the lender indefinitely. A “borrower” is not defined in the Act. However, one subpart of the definition of “mortgage loan” describes a “[ljoan on commercial real property if the borrower is a natural person or the lender is a noninstitutional investor .... ” § 494.001(20)(b). In relevant part, the Act also states:

494.0038 Mortgage broker disclosures.—
(1)(a)1. A person may not receive a mortgage brokerage fee except pursuant to a written mortgage brokerage agreement between the mortgage brokerage business and the borrower which is signed and dated by the business and the borrower.
494.0042 Brokerage fees.—
(3) At the time of accepting a mortgage loan application, a mortgage brokerage business may receive from the borrower a nonrefundable application fee. If the mortgage loan is funded, the nonrefundable application fee shall be credited against the amount owed as a result of the loan being funded. A person may not receive any form of compensation for acting as a mortgage broker other than a nonrefundable application fee, a fee based on the mortgage being funded, or a fee which complies with s.494.00421.

WPSC contends the Act’s failure to define the term “borrower” renders it ambiguous and subject to statutory interpretation. WPSC argues that “borrower” should be construed consistently with section 494.0079(3), a related consumer protection statute, which defines a borrower as “any natural person obligated to repay a loan, including, but not limited to, a coborrower, cosignor, or guarantor.”

Byrd argues the Act did not contemplate an individual guarantor be considered a borrower. In support, Byrd asserts that the Act’s definitions for “[a]ct as a mortgage broker” and “[mjortgage loan” are inseparably intertwined with the terms for “[mjortgage brokerage fee” and “[mjort-gage brokerage business.” Read together, Byrd concludes it can collect its fee under section 494.0038(1)(a)1. See §§ 494.001(3), (18M20).

At the summary judgment motion hearing, WPSC directed the trial court’s attention to the Legislature’s 2009 revision of the Act, which, effective January 1, 2010, adopted section 494.079(3)’s definition for borrower, almost verbatim. Section 494.001(1), Florida Statutes (2010), now reads: “Borrower means a person obligated to repay a mortgage loan and includes, but is not limited to, a coborrower, cosig-nor, or guarantor.”

This court reviews de novo the trial court’s legal interpretation of the MBMLA. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001).

It is axiomatic that the plain meaning of a statute is the first rule of statutory construction. State, Dep’t of Agric. & Consumer Servs. v. Quick Cash of Tallahassee, Inc., 609 So.2d 735, 738 (Fla. 1st DCA 1992). When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984).

Black’s Law Dictionary defines “borrower” and “guarantor” differently:

Borrower. A person or entity to whom money or something else is lent.
Guarantor. One who makes a guaranty or gives security for a debt.

Black’s Law Dictionary 179, 711 (7th ed. 1999). These definitions are not the same and they usually play two different roles in a loan transaction. Yet, in a sister statute under chapter 494, a borrower includes a guarantor. Because the term borrower is susceptible of different meanings, it is ambiguous and the court must use principles of statutory construction to resolve the ambiguity. See Barco v. School Bd. of Pinellas County, 975 So.2d 1116, 1122 (Fla.2008).

Notably, the First District applied the Act to a corporate borrower in Carlton Palms Hotel, Inc. v. Fidelity Trust, Inc., 728 So.2d 358 (Fla. 1st DCA 1999). Although Byrd criticizes the holding in Carlton Palms as nothing more than a rejection of summary judgment, the factual dispute involved the Act’s application in either case. Either the Act applied to disallow the mortgage brokerage fee if the requirements of section 494.0021 were not met or, if the defect was attributable to Carlton Palms, then the fee could not be charged unless the loan was funded. What remains unanswered in Carlton Palms is whether the Act applied because the undefined party described in the style of the case as “etc.” was, in fact, an individual borrower, cosignor, or guarantor. Nevertheless, the decision in Carlton Palms, as evidence of the state of the law, lends support to WPSC’s argument that the statute is ambiguous.

Byrd, citing Ieracitano v. Shaw, 815 So.2d 787 (Fla. 4th DCA 2002), contends that the Act’s definitional section applies to the exclusion of any other meaning. Ieracitano is inapposite because the court merely interpreted the definitional section to apply to section 494.0021 and held that the “notwithstanding” language only precluded the application of a contrary substantive provision. There was no statutory ambiguity and, more importantly, the case sheds no light on the definition of borrower, the issue here.

“To discern legislative intent, courts must consider the statute as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the statute.” Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1266 (Fla.2008), quoting Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003). The purpose of the MBMLA was to regulate brokers and protect individuals who contract with a mortgage broker for a mortgage loan by requiring specific statutory disclosures.

Strict construction of a statute applies when the provisions are penal and highly regulatory. See Equity Corp. Holdings, Inc. v. Dep’t of Banking & Fin., Div. of Fin., 112. So.2d 588, 590 (Fla. 1st DCA 2000) (interpreting strictly chapter 494’s regulation of those who “act as a mortgage lender” and imposing sanctions for improper licensing in order to give fair notice to those covered by the penal and highly regulatory statute). The general rule is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively. State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995). Regulatory statutes are not always strictly construed, particularly in the sphere of consumer protection. Generally, remedial statutes should be liberally construed in favor of granting access to the remedy provided by the Legislature. See, e.g., Golf Channel v. Jenkins, 752 So.2d 561, 565-66 (Fla.2000); Broward v. Jacksonville Med. Ctr., 690 So.2d 589, 590 (Fla.1997); Martin County v. Edenfield, 609 So.2d 27, 29 (Fla.1992).

Byrd contends that the Act’s amendments were not a mere clarification, but a substantial rewrite of the statute. Reviewing the breadth of chapter 2009-241 with particular attention to mortgage broker transactions, the revised law implemented stricter regulation of mortgage broker licensing, imposed additional administrative penalties and fines on mortgage brokers and afforded greater protection for individual borrowers. Although a retroactive application of the Act’s new licensing and penalty provisions would be unduly harsh, the use of the clarified definition for “borrower” would comport with a liberal reading of the Act’s remedial purposes. In the context of the alleged statutory deficiencies in this case, section 494.0038’s revisions are remedial. Reading the Act with an eye toward its remedial purpose and clear intent to protect the individual in his or her dealings with mortgage brokers and lenders, the inclusion of an individual guarantor within the definition of “borrower” to mean “a person obligated to repay a mortgage loan,” fulfills the Act’s statutory purpose and intent.

Generally, courts are permitted to consider subsequently enacted legislation in determining the meaning of a statute. Martin Daytona Corp. v. Strickland Constr. Servs., 941 So.2d 1220, 1224 (Fla. 5th DCA 2006). “The mere change of language does not necessarily indicate an intent to change the law for the intent may be to clarify what was doubtful and to safeguard against misapprehension as to existing law.” State ex rel. Szabo Food Servs., Inc. of North Carolina v. Dickinson, 286 So.2d 529, 531 (Fla.1973).

For the foregoing reasons, we conclude that the trial court properly construed the term “borrower” to include an individual guarantor. Accordingly, we affirm the trial court’s grant of WPSC’s motion for final summary judgment as well as its denial of Byrd’s motion for final summary judgment.

AFFIRMED.

PALMER and TORPY, JJ., concur.

      . §§ 494.001-.0077, Fla. Stat. (2009).

      . Ch. 09-241, §§ 1-2, at 2373-74, Laws of Fla.


author: RAMIREZ, C.J. GERSTEN, Judge

text:
    Sonia Edda DIAZ, Appellants, v. Juan DIAZ, Appellee.
    No. 3D09-2854.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.
    Rehearing Denied Aug. 11, 2011.

      Bofíll & Vilar, and Jose C. Bofill, for appellant.
    Orshan & Fajardo and Eliot R. Weitz-man and Jamie Segal Davis, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   RAMIREZ, C.J.

Sonia Edda Diaz appeals the trial court’s order granting Juan Diaz’s motions for contempt, as well as the income deduction orders. Because we find that the court awarded attorney’s fees for work not limited to the securing or collection of child support, we reverse.

The court dissolved the parties’ marriage on December 7, 1995. Following the divorce, both parents shared parental responsibility of their child, with the mother designated as the primary residential parent, but in January 2007, the court transferred this designation to the father. In September 2007, the trial court adopted and ratified a proposed modification to the timesharing agreement. Under the modified agreement, neither party was required to pay child support to the other. Rather, both parties would pay their respective shares for such services as the parenting coordinator, the child’s psychologist, and the child’s tutor (66.67% by the father and 33.33% by the mother).

Because our decision is a matter of statutory interpretation, it is not necessary to recite all the events that led up to this appeal. We will discuss only the orders under appeal.

The first order is an Amended Income Deduction Order. This order requires that sixty percent (60%) of the mother’s income be deducted from her paycheck to satisfy ongoing child support, arrearages, and attorney’s fees and costs. The second is an Order Granting Father’s Motions for Contempt. This order held the mother in civil contempt for her failure to follow the court’s previous orders. Additionally, it warned her that should her failure to pay child support continue, the court would find her in criminal contempt. The third, and last, order on appeal is the Amended Order Granting Father’s Motions for Contempt. This order is similar to the previous Order of Contempt, except that it requires that additional payments be made to the Guardian Ad Litem.

We first address whether section 61.1301, Florida Statutes (2010), was the appropriate vehicle for the collection of attorney’s fees incurred by the father in this case. Section 61.1301(1)(a), states in relevant part that “[u]pon the entry of an order establishing, enforcing, or modifying an obligation for alimony, for child support, or for alimony and child support, other than a temporary order, the court shall enter a separate order for income deduction if one has not been entered.” The statute continues in section (b)(1), “[t]he income deduction order shall ... [djirect a payor to deduct from all income due and payable to an obligor the amount required by the court to meet the obligor’s support obligation including any attorney’s fees or costs owed and forward the deducted amount pursuant to the order.”

Because section 61.1301 is in derogation of the common law, it must be strictly construed. See Spalding v. Spalding, 813 So.2d 1078, 1079 (Fla. 4th DCA 2002). We interpret section 61.1301(1)(a) as authorizing an income deduction order to collect attorney’s fees incurred as a result of securing and collecting child support and/or alimony. This does not mean that any time an individual brings an action to secure and collect support or alimony, any and all attorney’s fees can be automatically folded into the income deduction order. See Nash v. Nash, 688 So.2d 428, 429 (Fla. 3d DCA 1997) (reversed the entry of an income deduction order, where the order was solely for the payment of attorney’s fees).

Although we recognize that a portion of the attorney’s fees in question did come from the securing and collection of child support, the record before this Court indicates that a sizeable amount came from collateral legal matters. For example, some of the fees in question were incurred as the result of the parties’ custody dispute. The father argues that because “some portion” of the fees were related to the securing or collecting of child support, the income deduction order was appropriate. We do not believe that section 61.1301(1)(a) can be so liberally construed. Such construction would give it a meaning which “disregards the clear and unambiguous language of the statute.” Spalding v. Spalding, 813 So.2d 1078, 1079 (Fla. 4th DCA 2002).

Next, we address the propriety of withholding sixty percent (60%) of the mother’s income. As is evident from the trial transcript, part of the trial court’s rationale in withholding sixty percent of the mother’s income was to satisfy her obligation in attorney’s fees. Because we have already concluded that the award of attorney’s fees was not entirely eligible for collection via an income deduction order, this issue is now moot. We note, however, that it does not appear from the record that the mother’s monthly obligation to the father would justify withholding 60% of her income. Even if any arrearages or other obligations unknown to this Court did exist, we would caution against levying such a burden without first determining if this would leave the mother with sufficient income to live. We are not holding that sixty percent is per se unreasonable. Rather, we reiterate our prior holding where we stated that the “obligor must have the ability to pay the deduction amount. An installment amount, or an income deduction amount, cannot be established which would leave the obligor without sufficient funds to live.” Lambertini v. Lambertini, 817 So.2d 942, 944 (Fla. 3d DCA 2002).

In conclusion, we reverse the trial court’s order allowing the collection of all attorney’s fees via income deduction order. We remand to the trial court with instructions to vacate the order and determine what attorney’s fees, if any, are related to the collection and securing of child support. Additionally, we instruct the trial court to conduct a hearing to determine what the appropriate withholding percentage would be in this case.

Reversed and remanded with instructions.

SALTER, J., concurs.

GERSTEN, Judge

(dissenting).

I respectfully dissent. I believe the trial court’s orders were correct. Therefore, I would affirm.


author: EMAS, J.

text:
    Ketlyne ALEXIS, Appellant, v. Lilliam VENTURA, Arbor E & T, LLC, a Kentucky limited liability company, Res-Care of Florida, Inc. & Res-Care, Inc., Appellees.
    No. 3D10-2879.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.
    Rehearing Denied Aug. 11, 2011.

      Sarelson Law Firm and Matthew Seth Sarelson, Miami and Max M. Nelson, for appellant.
    Richard W. Aschenbrenner, Co-Counsel for appellee Ventura; Langbein & Lang-bein and Evan J. Langbein, Co-Counsel for appellee Ventura; Thomas H. Loffre-do, Counsel for corporations, Fort Lauder-dale, for appellees.
    Before WELLS, CORTIÑAS, and EMAS, JJ.
   EMAS, J.

Appellant Ketlyne Alexis appeals an order granting Lilliam Ventura’s motion to dismiss a claim for tortious interference with an advantageous business relationship, and an order dismissing Ventura as a party defendant. We reverse.

Alexis was terminated from her job with Arbor E & T, LLC. She first filed a claim with the United States Equal Employment Opportunity Commission, which determined that Alexis “was subjected to a hostile work environment by her supervisor [Ventura] because of her race, black, and national origin, Haitian.” The EEOC concluded that Alexis was discharged because of her race and national origin, and that Arbor E & T committed violations of Title VII of the federal Civil Rights Act of 1964.

Thereafter, Alexis filed a three-count complaint against her employer, Arbor E & T, alleging violations of the Florida Civil Rights Act. Alexis later amended her complaint to add Ventura (her immediate supervisor) as a defendant, and added a fourth count alleging Ventura’s tortious interference with an advantageous business relationship. Alexis alleged that Ventura made a number of hostile statements and engaged in a number of hostile acts against Alexis; that these statements and acts were motivated by discriminatory intent to undermine Alexis’ job performance in the eyes of Arbor E & T; and that these statements and acts by Ventura ultimately led to Alexis’ termination by Arbor E & T.

Ventura filed a motion to dismiss this count and to dismiss Ventura as a defendant to the action. Ventura argued that, as a matter of law, Alexis could not state a claim against Ventura for tortious interference with a business relationship where both Ventura and Alexis were co-employees of that business. The trial court granted the motion, dismissed the claim, and dismissed Ventura as a party defendant.

To state a claim for unlawful interference with an advantageous business relationship, Alexis must allege the following elements:

1. The existence of a relationship between Alexis and her employer, under which Alexis has legal rights;
2. Ventura’s knowledge of the relationship;
B. An intentional and unjustified interference with that relationship;
4. By a third party;
5. Resulting in damages to Alexis caused by the interference.

Sloan v. Sax, 505 So.2d 526 (Fla. 3d DCA 1987).

The instant appeal turns on the fourth element: whether Ventura can be characterized as a “third party” where she and Alexis are co-employees of Arbor E & T. While our common sense might tell us the answer is “no”, the law tells us that the answer, at least under certain circumstances, is “yes.”

The general rule provides that “in the context of a managerial or supervisory employee terminating a plaintiffs employment, an action will usually not lie against the terminating employee because he/she is considered a party to the employment relationship.” Rudnick v. Sears, Roebuck & Co., 358 F.Supp.2d 1201, 1206 (S.D.Fla.2005) (citing West v. Troelstrup, 367 So.2d 253, 255 (Fla. 1st DCA 1979)).

There is a recognized exception to this general rule, as explained in O.E. Smith’s Sons, Inc., v. George, 545 So.2d 298 (Fla. 1st DCA 1989):

For the interference to be unjustified, the defendant must be a third party, external to the business relationship. However, the privileged interference enjoyed by a party that is integral to the business relationship is not absolute. The privilege is divested when the defendant “acts solely with ulterior purposes and the advice is not in the principal’s best interest.”

Id. at 299 (quoting Sloan v. Sax, 505 So.2d 526, 528 (Fla. 3d DCA 1987)). Although “an allegation that [defendant] was maliciously motivated does not by itself mean that [defendant] acted outside the scope of his employment,” Sloan, 505 So.2d at 528, an allegation that the defendant was not acting on the employer’s behalf or was acting to its detriment satisfies the “third party” requirement.

Ventura argues that Sloan does not permit a claim for tortious interference where the alleged interference was committed by more than a single actor. Ventura asserts that, because Alexis alleged that Ventura acted with other co-employees to interfere with Alexis’ business relationship, the Sloan exception is inapplicable. Ventura misapprehends the holding of Sloan. In holding that a co-employee’s conduct can be actionable where the co-employee “acts solely with ulterior purposes,” id., the word “solely” was not intended to limit the number of interfering actors, but rather to limit the underlying motivation. It is the allegation that Ventura acted with the sole ulterior purpose (i.e., a singular improper purpose detrimental to the employer’s interests), which renders the conduct actionable. See, McCurdy v. J.C. Collis, 508 So.2d 380, 383 (Fla. 1st DCA 1987) (“A qualified privilege to interfere is not negated by concomitant evidence of malice. It is only when malice is the sole basis for interference that it will be actionable.”).

The trial court erred in dismissing Ven-tura as a party defendant and in determining that Alexis could not state a claim against Ventura for tortious interference with an advantageous business relationship.

Reversed and remanded for proceedings consistent with this opinion.

      . For example, Alexis alleged in her complaint that Ventura told other employees: "I am the boss and I am in charge and I’m going to make that Haitian Bitch know it.”

      . In her complaint, Alexis alleged that other co-employees engaged in discriminatory actions and statements against Alexis. However, these other co-employees were not named as defendants to the action.