on forum non conveniens grounds. The trial court
granted the motion and dismissed the case without prejudice. Fox raises
four issues on appeal. We address only the issue of the timeliness of the
motion and reverse.

Fox filed suit on August 8, 2003 against fifty-three corporations,
including Union Carbide , based on an asbestos-related illness. However,
the trial court docket included in the record reveals that the complaint
was not served on the defendants until November 5, November 6,
November 10, and December 15, and does not indicate which defendants
were served on which date.

On the exposure sheets attached to the complaint, Fox indicated that
he may have been exposed to asbestos at the following locations: U.S.
Naval Air Station, Pensacola, Florida (1961-1962); Pittsburgh Des Moines
Steel, Birmingham, Alabama (1964-1980); U.S. Army, Fort Benning,
Georgia (1966-1969); Pennys Dog Food Plant, Birmingham, Alabama
(1982-1985); Marita Bakery, Birmingham, Alabama (1985-1986); Holiday
Bowling Lane, Bessemer, Alabama (1996-1997); Maxx Petroleum,
Bessemer, Alabama (1996-1998); and Trinity Steel, Besseme r, Alabama
(1997-1998). Regarding Union Carbide, Fox asserted that he was
possibly exposed to asbestos in Calidria-containing products, Bakelite,
joint compounds, and cements at the U.S. Naval Air Station in
Pensacola, Pittsburgh Des Moines Steel in Birmingham, and the U.S.

2
Army Base in Fort Benning. Fox subsequently supplemented his
exposure sheets to indicate that he may have been exposed to products,
such as Georgia-Pacific Ready Mix Joint Compound, containing Union
Carbide Bakelite and Calidria, at various residential and commercial
structures in the Birmingham metropolitan area.

In another attachment to the complaint, the Forum Non Conveniens
Fact Sheet, Fox stated that he did not currently reside in Florida but that
he resided in and was exposed to asbestos in Florida, indicated that it
was undetermined whether any asbestos exposure occurred in Palm
Beach County, stated that some fact and expert witnesses resided in
Florida, and indicated that he was diagnosed and received medical
treatment in Florida with an undetermined amount occurring in Palm
Beach County.

Additionally, Foxs witness list included thirty-five experts, including
eight residing in Florida (one in Palm Beach County) and none residing in
Alabama. His fact witness list included broad categories rather than
specific people, so it is uncertain how many potential witnesses reside in
Florida and Alabama. Union Carbides summary of expert opinions listed
sixteen experts who could possibly testify, including two residing in
Florida and none residing in Alabama.

Union Carbide filed a Motion to Dismiss Based on Forum Non
Conveniens on May 21, 2004. Union Carbide claimed that neither Fox
nor Union Carbide resided in Florida, Foxs injuries occurred outside of
Florida, Fox received medical treatment outside of Florida, and no
witnesses resided in Florida. Union Carbide further alleged that
Alabama was the proper forum for the case, because Foxs injuries
occurred in Alabama, Fox resided in Alabama, and Fox never lived nor
worked in Palm Beach County.

Union Carbide attached an unexecuted affidavit to the forum non
conveniens motion indicating that its principal place of business is not in
Florida, that it does not have a registered agent or representative in Palm
Beach County, and that it is amenable to service of process in Alabama.
Union Carbide also attached portions of the transcript of Foxs deposition
to the forum non conveniens motion which indicated that Fox lived in
Alabama for his entire life except from 1960-1961 when he lived in
Pensacola. He testified that he was employed as a busboy at the Naval
Air Station while in Pensacola and worked exclusively in the cafeteria.
He also testified that two of his co-workers at Pittsburgh Des Moines
Steel were still residing in Birmingham. Fox further testified that he

3
never lived nor worked in Palm Beach County. He additionally testified
that he never came to Palm Beach County to meet with any doctors or
lawyers, nor had he talked by phone with any doctors in the area.

Fox filed Plaintiffs Response to Defendant Union Carbide
Corporations Motion to Dismiss Based on Forum Non Conveniens. He
contended that the motion to dismiss was untimely and that the
selection of a Palm Beach County forum was not improper under
applicable forum non conveniens standards.

Following a hearing, the trial court entered an Order Dismissing Case
Without Prejudice. The trial court found that there was no nexus
between the case and Palm Beach County and that dismissal was
appropriate for judicial efficiency and due to financial constraints on the
court system. The trial court also concluded that the case was between
non-residents of Florida, that the exposure sheets revealed that most of
the locations at issue were located in Alabama, and that there were no
local witnesses.

The trial court then entered an Amended Order Dismissing Case
Without Prejudice. This order added to the findings in the previous order
and specifically referenced Kinney System, Inc. v. Continental Insurance
Co., 674 So. 2d 86 (Fla. 1996), the applicable forum non conveniens
standard in Florida. The trial court found that Alabama was an
adequate alternative forum. The trial court considered the private
interests factor vis-à-vis the public interests factor and determined that
Florida had no interest in the case, the case would be unduly
burdensome to the community, and that virtually no witnesses were
located in Florida. The trial court considered the ability to reinstate the
case in the alternate forum factor to be satisfied by the fact that Kinney
provides that a motion to dismiss for forum non conveniens stipulates
that the case will be treated by the alternate forum as if it were filed in
that forum on the date it was filed in Florida. Additionally, the trial court
noted that it was aware that a motion to dismiss based on forum non
conveniens must be filed within sixty days of service of the complaint,
but did not rule on the issue of timeliness before granting the motion to
dismiss.

We address only one of the issues raised by Fox in support of reversal,
that of the timeliness of the motion to dismiss based on forum non
conveniens, because we consider this issue dispositive. Florida Rule of
Civil Procedure 1.061(g) provides: A motion to dismiss based on forum
non conveniens shall be served not later than 60 days after service of

4
process on the moving party. Where a motion is untimely under this
rule, the motion should be denied. See Wedge Hotel Mgmt., (Bahamas),
Ltd. v. Meier, 868 So. 2d 552, 552 (Fla. 3d DCA 2004).

Based on the dates of service of the complaint listed in the trial court
docket, even if Union Carbide was served on the latest date of December
15, 2003, the forum non conveniens motion filed on May 21, 2004 was
untimely because it was filed more than sixty days after the complaint
was served on Union Carbide. We are unpersuaded by Union Carbides
argument for an equitable estoppel exception to the rule, as we do not
believe that the circumstances of this case warrant such an exception.

As such, we conclude that the trial court erred by granting Union
Carbides motion to dismiss on forum non conveniens grounds because it
was untimely filed. Consequently, we reverse and remand for further
proceedings consistent with this opinion.

Reversed.

G
UNTHER
,

W
ARNER
and

H
AZOURI
,

JJ., concur.

*
*

*

Appeal from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Timothy P. McCarthy, Judge; L.T. Case No.
502003CA008364XXASAD.

David A. Jagolinzer and James L. Ferraro of Ferraro & Associates,
P.A., Miami, for appellant.

Nathan M. Thompson and Evelyn M. Fletcher of Hawkins & Parnell,
LLP, Atlanta, Georgia, for appellee.

Not final until disposition of timely filed motion for rehearing.