LEVINSON LICHTMAN LLP v. LEVINSON (2010)

Levinson & Lichtman, LLP, appeals an order granting Appellees Sharon Cook, Michael Kander, Susan Kander and Paul Kander's motion to dismiss under Florida Rule of Civil Procedure 1.061. We conclude the trial court abused its discretion in granting the motion for two reasons: (1) despite reasonable efforts and supporting court orders, Levinson & Lichtman was improperly, and perhaps intentionally, thwarted in obtaining an oral deposition of defense witness, Sharon Cook, and written discovery from other defendants, which had been compelled by the trial court; and (2) because neither the order granting the motion nor the hearing transcript on the motion demonstrates the trial court performed a Kinney analysis. See Kinney Sys., Inc. v. Cont'l Ins. Co., 697 So.2d 86, 90 (Fla.1996); see also Wood v. Bluestone, 9 So.3d 671, 673 (Fla. 4th DCA 2009) (“If the record is sufficient to review the trial court's ultimate determination, the scarcity of the text of the order will not matter. Nonetheless, the court must still engage in the Kinney analysis, either at the hearing or in its written order of denial.”) (internal citations omitted); Strauss v. Allstate Ins. Co., 855 So.2d 167, 169 (Fla. 4th DCA 2003) (reversing and remanding for a determination of the Kinney factors when the record does not demonstrate the trial court conducted the requisite analysis of the four factors before dismissing appellant's action); Carenza v. Sun Int'l Hotels, Ltd., 699 So.2d 830, 831 (Fla. 4th DCA 1997) (“Neither the trial court's order granting defendants' motion nor its pronouncements during the hearing on the motion provide this Court with enough information to determine whether the trial judge adequately considered each step of the Kinney test in reaching his conclusion.”).

Reversed and remanded.¹

FOOTNOTES

1.  We decline to address the merits of the motion to dismiss for forum non conveniens, finding the trial court should reconsider the motion after discovery is completed.

SHEPHERD, J.