Full Opinion

Third District Court of Appeal State of Florida Opinion filed November 4, 2026. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D25-2106 Lower Tribunal No. 25-13939-CA-01 ________________ Rafael Lopes Brasileiro Martim, et al., Appellants, vs. Cattleya PTC, Appellee. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Jason Emilios Dimitris, Judge. Zimmerman, Kiser & Sutcliffe, P.A., and Ernest H. Kohlmyer, III, (Orlando), for appellants. Gelber Schachter & Greenberg, P.A., and Barbara Llanes and Daniel R. Walsh, for appellee. Before SCALES, C.J., and LOGUE and LOBREE, JJ. LOGUE, J. Appellants Rafael Lopes Brasileiro Martim (“R. Martim”) and MME Martim, LLC (“Martim, LLC”) appeal the trial court’s order denying their motion to dismiss and compel arbitration. We dismiss part of their appeal for lack of jurisdiction and affirm the rest. In the case below, Cattleya PTC, a Swiss private trust company, sued Martim, LLC and R. Martim, its chief executive officer, for conversion, unjust enrichment, and imposition of a constructive trust. It alleged R. Martim, who is a citizen of Brazil, is a resident of Florida, and Martim, LLC is a Florida limited liability company. Cattleya PTC further alleged it had transferred $10,000,000 that it owned to R. Martim and Martim, LLC to be invested on its behalf and that R. Martim and Martim, LLC had failed to provide proceeds from the investment, failed to account for the funds, and failed to return the funds on demand. R. Martim and Martim, LLC moved to dismiss and to compel arbitration. They moved to dismiss based on (1) lack of standing; (2) failure to join an indispensable party; (3) forum non conveniens; (4) improper venue based on a forum selection clause in a contract; and (5) an agreement to arbitrate. They filed no affidavits or testimony in support. Instead, they asked the trial court to take judicial notice of two pleadings from a lawsuit that Cattleya PTC had filed in federal court against R. Martim and Martim, LLC on very similar 2 grounds. The first was Cattleya PTC’s federal complaint, which allegedly contained conflicting averments. The second was R. Martim and Martim, LLC’s motion to dismiss. Attached to the motion to dismiss was a contract between Nervis Gerardo Villalobos Cardenas (the sole owner of Cattleya PTC) and Martim, LLC (signed by R. Martim), which provided for the transfer of $10,000,000 to Martim, LLC and mandated disputes be submitted to an arbitration proceeding by the International Chamber of Commerce in London. The contract was not attached to Cattleya PTC’s federal complaint. The arguments raised in their federal motion to dismiss largely track the arguments they make here except, in their federal motion to dismiss, they argued the federal court lacked diversity jurisdiction to hear the case. Cattleya PTC voluntarily dismissed that federal suit and filed this one in its stead. After extensive briefing and arguments, the trial court denied the motion to dismiss, and this appeal followed. The denial of a motion to dismiss is a non-final order. This Court has jurisdiction to hear appeals of non-final orders only where the Florida Supreme Court has authorized such appeals by rule. Art. V, § 4(b)(1), Fla. Const. (“[District courts] may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court.”). No rules provide this Court with jurisdiction to hear an appeal of a non-final order denying a 3 motion to dismiss for lack of standing or for failure to join an indispensable party. “Without jurisdiction, there is only one action we can take: we must dismiss.” Fisher v. Hous. Auth. of the City of Key W., 424 So. 3d 1017, 1022 (Fla. 3d DCA 2025). We therefore dismiss that part of the appeal. An interlocutory appeal of an order denying a motion to dismiss based on forum non conveniens, however, is authorized by rule. Fla. R. App. P. 9.130(a)(3)(C)(viii). The merits of the forum non conveniens analysis turns on the four factors set forth in Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86, 94 (Fla. 1996), codified in Florida Rule of Civil Procedure 1.061(a). “The burden of persuasion for each factor is on the moving party.” de Holguin v. Godin, 367 So. 3d 1286, 1289 (Fla. 3d DCA 2023). Generally, the party seeking a dismissal of a suit for forum non conveniens “must support the motion by affidavit or other evidence offered under oath.” Ground Improvement Techs., Inc. v. Merchs. Bonding Co., 707 So. 2d 1138, 1139 (Fla. 5th DCA 1998). “The only exception would be where the complaint itself shows on its face that a forum non conveniens transfer is warranted.” Id. R. Martim and Martim, LLC failed to attach any affidavit or sworn evidence to their motion. See Reiber v. Yamasaki, 382 So. 3d 798, 803 (Fla. 5th DCA 2024) (“A trial court generally cannot conduct a ‘meaningful analysis’ under Kinney if the defendant has not put forth any 4 evidence or proof in support of the motion to dismiss.”).1 The unsworn statements of fact in the federal complaint and motion to dismiss do not provide the necessary facts to even support a finding that an arbitration proceeding by the International Chamber of Commerce in London is an adequate alternative forum because prior unsworn pleadings “may not [ordinarily] be used by an opposing party as proof of an issue.” Hernandez v. CGI Windows & Doors, Inc., 347 So. 3d 113, 118 (Fla. 3d DCA 2022) (quoting Hines v. Trager Constr. Co., 188 So. 2d 826, 829 (Fla. 1st DCA 1966)). We are left with only the allegations in the complaint in this case. There are no allegations in the complaint that the parties are bound to submit to an arbitration proceeding by the International Chamber of Commerce in London, much less that such a proceeding provides the jurisdiction over the parties, discovery, and access to witnesses sufficient to make it an adequate alternative forum. Moreover, the allegations aver that the defendants are residents of the current forum—Miami-Dade County. Exceptions exist but normally, “the fact that the defendants are all located in Miami-Dade County, 1 R. Martim and Martim LLC’s argument that they should have had a hearing also fails, as this Court has previously held that “[t]he lack of affidavits . . . effectively negate[s] the [d]efendants’ argument on appeal that they should have received an evidentiary hearing” on the motion to dismiss for forum non conveniens. Navas v. Brand, 130 So. 3d 766, 770 (Fla. 3d DCA 2014). 5 Florida is an indication that it would be less burdensome for them to defend the lawsuit here.” Ryder Truck Rental, Inc. v. Adams, 401 So. 3d 430, 435 (Fla. 3d DCA 2024); Taurus Int’l Mfg., Inc. v. Friend, 217 So. 3d 1133, 1134 (Fla. 3d DCA 2017) (“[A] forum non conveniens argument coming from a party sued where he resides is both puzzling and strange.” (quoting Cardoso v. FPB Bank, 879 So. 2d 1247, 1250 (Fla. 3d DCA 2004))). Based on the record before the trial court, therefore, we find no basis to hold the trial court committed reversible error on this point. The Florida Supreme Court has authorized interlocutory appeals of orders denying a motion to dismiss based on a forum selection clause or a contract to arbitrate. Fla. R. App. P. 9.130(a)(3)(A), (I). However, Plaintiff/Appellee Cattleya PTC and Defendant/Appellant R. Martim were not parties to the contract. “As a general rule, a contract cannot be enforced against a person who is not a party to the contract and has not otherwise agreed to its terms.” Sifaco Grp., S.A. v. Margioukla, 51 Fla. L. Weekly D1440, at *4 (Fla. 4th DCA July 15, 2026). Nervis Gerardo Villalobos Cardenas, the actual party to the contract with R. Martim and Martim, LLC, is not a party to the litigation. While there might be circumstances such as piercing the corporate veil that could overcome these gaps, the facts necessary to do so do not appear 6 in this record, where, as indicated above, the Appellants submitted no affidavits or testimony in support of their motion. In fact, Appellants argue Cattleya PTC lacks standing to bring this action because it was not a party to the contract. In these circumstances, given this record, we again are left with no basis to find the trial court committed error. Appeal dismissed in part; affirmed in part. 7