DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SONDRA STAMEN, Individually and as Trustee of the Stamen 

Condominium Trust and the Stamen Marital Trust,

Appellant,

v.

JUSTINE STAMEN ARRILLAGA, Individually and as Nominated 

Successor Trustee of the Stamen Condominium Trust and Stamen 

Marital Trust,

Appellee.

No. 4D14-2652

[July 15, 2015]

Appeal of a non-final order from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Krista Marx, Judge; L.T. Case No. 

2014CP000683XXXXNB.

Eric J. Goldring of Goldring & Goldring, P.A., Colts Neck, New Jersey, 

for appellant.

Edward Downey and R. Lee McElroy IV of Downey & Downey, P.A., Palm 

Beach Gardens, for appellee.

PER CURIAM.

Appellant Sondra Stamen appeals a non-final order denying her motion 

to dismiss Appellee Justine Stamen Arrillaga’s complaint for lack of 

jurisdiction and improper venue. We hold that the trial court’s order 

sufficiently explained the rationale for finding jurisdiction and proper 

venue and we need not address those issues further. On appeal, Appellant 

additionally raises the doctrine of forum non conveniens and asserts “[t]he 

trial court intentionally failed to engage in [a forum non conveniens] 

analysis.” As set forth below, Appellant’s forum non conveniens argument 

is “too little, too late.” Accordingly, we affirm the order denying Appellant’s

motion.

Appellant’s “Motion to Dismiss for Lack of Jurisdiction and Improper 

Venue and for Sanctions” was improper for three reasons. First, the 

motion does not argue forum non conveniens as grounds for dismissal. 
2

Improper venue (which was pled) and forum non conveniens are distinct 

legal objections and a party’s pleading of one does not inherently raise the 

other. See, e.g. Whitehead v. Nat’l Crane Corp., 466 So. 2d 412, 413 (Fla. 

3d DCA 1985). It is true that “[a] trial court may sua sponte raise the 

question of whether venue should be transferred to another county . . . for 

the convenience of parties or witnesses or in the interest of justice.” 

McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So. 

3d 504, 511 (Fla. 4th DCA 2010). However, it is not erroneous for a court 

to decline to rule on an issue where it was not raised by a party. Here, 

Appellant has failed to submit a transcript from the trial court’s hearing 

on the instant motion and, therefore, we cannot determine whether the 

issue of forum non conveniens was raised in the hearing; it was not 

addressed in the trial court’s order. Thus, the “record brought forward by 

the appellant is inadequate to demonstrate reversible error.” Applegate v. 

Barnett Bank of Tallahassee, 377 So. 2d 150, 1152 (Fla. 1979).

Second, Appellant’s first mention of forum non conveniens appears in 

her Response to Motion to Strike, dated June 9, 2014. Florida Rule of Civil 

Procedure 1.061(g) states “a motion to dismiss based on forum non 

conveniens shall be served not later than 60 days after service of process 

on the moving party.” Service in this case was made to Appellant’s 

attorney on February 28, 2014.1 This is a duration of over 100 days, well 

past the 60-day time limit provided by the statute. “Where a motion is 

untimely under this rule, the motion should be denied.” Fox v. Union 

Carbide Corp., 910 So. 2d 422, 424 (Fla. 4th DCA 2005). Thus, the trial 

court’s failure to address the forum non conveniens allegation was not 

error, as any such assertion was time-barred.

Third, even if we were to find that the trial court had the ability to make 

a forum non conveniens determination based on the June 9 filing, there is 

an additional problem with Appellant’s pleadings that would preclude a 

determination in Appellant’s favor. “A transfer of venue based on 

convenience is improper where no affidavits or other sworn proof support 

the motion.” Carenza v. Sun Int’l Hotels, Ltd., 699 So. 2d 830, 832 (Fla. 

4th DCA 1997) (quoting Graham v. Graham, 648 So.2d 814, 815-16 (Fla. 

4th DCA 1995)). Appellant’s motion is not sworn as true and Appellant 

failed to file any affidavits in support of the facts asserted in the motion. 

1 Appellant’s initial brief argues there was no attempt to serve Appellant in Florida 

and the only service was provided to her attorney in New Jersey. However, there 

is no indication in the record provided that defective service was argued as an 

error below.
3

Appellant’s arguments on appeal were either conceded in her brief or 

untimely made. The trial court did not err by denying Appellant’s motion 

to dismiss. Accordingly, we affirm the trial court’s ruling.

Affirmed.

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

* * *

Not final until disposition of timely filed motion for rehearing.