Opinion
Case No. 4D03-281.
Opinion filed November 12, 2003.
Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Thomas M. Lynch, IV, Judge; L.T. Case No. 01-9692 11.
Albert A. Gordon of Gordon Law Firm, and Patrice A. Talisman of Hersch Talisman, P.A., Miami, for appellant.
Richard A. Sachs of Melito Adolfsen, Fort Lauderdale, for appellee Matheson Tri-Gas, Inc.
Robert D. McIntosh and Rachel M. Coe of Adorno Yoss, P.A., Fort Lauderdale, for appellee Nitrotec, Inc.
This appeal arises from the entry of a non-final order granting a motion to dismiss based on forum non conveniens. Appellant, Rubin Daviran, raises two issues on appeal. Because we agree with his first argument and reverse the order of the trial court on that basis, we need not reach the second issue.
Daviran first contends the trial court erred in signing, without change, the proposed order submitted by Defendant, Nitrotec. As evidenced in the briefs submitted to this court by all parties in this case, the parties do not dispute that after the hearing on this motion, the trial judge's judicial assistant contacted the parties, advised them that the trial judge was going to reserve ruling on the motion, and requested they submit orders. However, the final order submitted by Nitrotec's counsel and entered in this case grants the motion to dismiss based on forum non conveniens and provides that an adequate alternate forum exists in the Bahamas, that the Bahamas has jurisdiction over all the parties, that the court has considered all the relevant private and public interest factors, and that Daviran can reinstitute suit in the Bahamas without inconvenience or prejudice.
This court has previously addressed the issue of a trial court adopting a proposed judgment verbatim in Flint v. Fortson, 744 So.2d 1217 (Fla. 4th DCA 1999). In Flint, this court acknowledged the desirability of judges preparing their own judgments, but recognized the practical justification for judges utilizing submissions from counsel. The court noted that "what is critical for a reviewing court is that a final judgment reflect the trial judge's independent decision on the issues of the case." Id. at 1220. The court concluded that although there is a split of opinion on the issue, reversal has only been granted when the signed judgment is inconsistent with prior pronouncements of the judge.Id.
We recognize that this case is distinguishable from Flint in that there was no oral pronouncement made by the court on the record at the conclusion of the hearing. In fact, after hearing argument, the judge's only comment was "Okay. I will need quite a bit of time on this. Couple of weeks. I will get to it as soon as I can. I am a bit back logged. Hopefully we will get to it soon." Thus, there is no oral pronouncement per se with which the order entered could contradict. However, none of the parties dispute that the judge's assistant contacted them and advised them that the judge was going to defer ruling on the motion pending the Bahamian court's decision to exercise jurisdiction. The order entered does not defer ruling. Rather, it unequivocally grants the motion to dismiss. Interestingly, in defending the court's entry of their proposed order, Matheson refers to the instructions of the judge's assistant and claims that:
We note that at oral argument before this court, in what appeared to be the first time such a position was taken, counsel for the appellee questioned what was actually said by the judicial assistant. However, in briefs submitted to this court, there was no question of what the parties were advised. Further, counsel for appellee Nitrotec represented at oral argument that he had no idea who the judge's judicial assistant spoke to at appellant's attorney's office, and it may have been a secretary she spoke to at appellee's attorney's office.
following the verbal instruction verbatim would have resulted in an order without effect. The reason is that the verbal instructions were for an order deferring ruling on the Motion until the Bahamian court determined if it would accept jurisdiction. However, the Order did not actually require the Appellants to attempt to obtain jurisdiction in the Bahamas.
This comment supports the conclusion that Matheson was not content with the instructions given by the trial court, and supported entry of an order dismissing the complaint. Matheson also points to the amount of time the court took to make a decision on the motion and asserts that such time is evidence that the court considered all the issues contained in the final order. This assertion is contradicted by the record, where the court explained the likelihood of a delay in light of being "a bit back logged."
As this court ruled in Flint, and has since applied in Damiani v. Damiani, 835 So.2d 1168 (Fla. 4th DCA 2002), when a final order is inconsistent with the court's prior ruling, reversal is warranted. This principle should not be limited to inconsistencies between an order and pronouncements made by the court on the record. Perhaps a more difficult question would be presented if the parties disputed the trial court's decision. However, that is not the case here. Because the motion is inconsistent with the court's pronouncement it must be reversed.
REVERSED.
STEVENSON, J., concurs.
KLEIN, J., concurs specially with opinion.
I agree with the majority and am writing only to express my views as to the merits of the motion to dismiss.
Plaintiff is a Peruvian resident who was working in the Bahamas with a Bahamian work permit. He was injured by a machine operating at a chemical manufacturing plant owned by Uniroyal Chemical Company Ltd. Uniroyal hired an American company to inspect the machine right after the accident, the inspection was videotaped, and the machine was then altered to prevent the type of accident which occurred in this case. There were no eyewitnesses to the accident other than plaintiff, who was working on a Bahamian holiday. Uniroyal has settled with plaintiff.
Matheson Tri-Gas, Inc., the only party moving to dismiss, has its principal place of business in New Jersey, but has a manufacturing facility in Jupiter, Florida, and sells its products in Broward and Palm Beach counties. Uniroyal purchased the machine which injured plaintiff from Matheson. Matheson subcontracted the design and manufacture of the equipment to Nitrotec, Inc., which designed and manufactured the equipment in Maryland.
After being injured, plaintiff was immediately transported to Baptist Hospital in Miami where he remained for nearly four months. He and his family live in Peru, but he travels to Miami for further medical treatment. The complaint he filed against Matheson and Nitrotec alleges strict liability and defective design of the machine.
Matheson moved to dismiss based on forum non conveniens as adopted by the Florida Supreme Court in Kinney Sys., Inc. v. Continental Ins. Co., 674 So.2d 86, 88 (Fla. 1996). The public policy underlying that decision was that the Florida judicial system should not be resolving "disputes utterly unconnected with this state's interests." As the court further explained:
The use of Florida courts to police activities even in the remotest parts of the globe is not a purpose for which our judiciary was created. Florida courts exist to judge matters with significant impact upon Florida's interests, especially in light of the fact that the taxpayers of this state pay for the operation of its judiciary. Nothing in our Constitution compels the taxpayers to spend their money even for the rankest forum shopping by out-of-state interests.
Id. at 92.
I am assuming that plaintiff's medical treatment in this case was not obtained for purposes of forum shopping because he was transported here immediately following the accident, and people with serious injuries or illness in the islands routinely come to Florida because of the greater availability of medical treatment. It is my view that, where a plaintiff is injured outside of the United States, but receives substantial medical treatment in Florida for reasons which do not include forum shopping, the courts should be skeptical of motions to dismiss based on forum non conveniens.
The trial court may have assumed that, because the accident occurred in the Bahamas, the case should be tried there. The damages aspect of a personal injury case can, however, be more significant than the liability issue. In addition, the medical witnesses on damages will always be located where the medical treatment occurred, while the witnesses on liability are not necessarily located at the place of the accident.
The Kinney decision, as noted above, was prompted by cases in which Florida has no interest. Where Florida healthcare providers render substantial medical care, however, Florida does have an interest in seeing that they are paid because otherwise the citizens of Florida may bear that cost. If payment is only going to come from a recovery in a personal injury lawsuit, which is often the case, the chances of that occurring are far greater if the case is litigated in Florida rather than in another country.
A similar situation was presented in Woods v. Nova Cos. Belize, Ltd., 739 So.2d 617 (Fla. 4th DCA 1999), in which the plaintiff was injured in an aircraft accident in Costa Rica. In reversing an order dismissing for forum non conveniens, we pointed out that the plaintiff's choice of Florida as a forum was clearly a reasonable choice because plaintiff had received extensive medical treatment in Florida. Woods would appear to control this case.
Although our opinion in Woods does not reflect it, the record showed that after receiving seven months of medical treatment in the hospital at the University of Alabama, plaintiff was treated for months at the nationally known burn center at Jackson Memorial Hospital in Miami. There was a dissent in Woods based on Resorts International v. Spinola , 705 So.2d 629 (Fla. 3d DCA 1998). Spinola also involved an accident in the Bahamas and medical treatment in Miami. The medical treatment, however, consisted only of an operation in which the plaintiff was hospitalized for two or three weeks. Prior to that the plaintiff had received medical treatment in the Bahamas, and afterward plaintiff received additional medical treatment where she resided in Portugal. In Spinola the third district held that the Bahamas was a more convenient forum and that the trial court should have dismissed.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.