JAMES HARRIS SANDERS, APPELLANT,
v.
INVERSIONES VARIAS, S.A., (INVASA), APPELLEE
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The court held that the defendant waived their right to insist on contractual venue by delaying the motion and seeking affirmative relief in the current jurisdiction.
After years of litigation and discovery, the defendant moved for a change of venue to Managua, Nicaragua, based on a contract clause stating domicile …
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PER CURIAM.
Following this court’s opinion reported as Sanders v. Inversiones Varias, S.A. (Invasa), 436 So. 2d 1089 (Fla. 3d DCA 1983) the matter recurred in the trial court and on remand Sanders conducted more discovery, requested fees and costs, demanded jury trial and moved for non-resident bond pursuant to § 57.011 Florida Statute (1979). Almost 4 years after the case had begun, he moved for the first time for change of venue to Managua, Nicaragua, alleging that the parties agreed that venue for any action on the contract would be Managua. The contract clause states, “(Domicile) For all matters in connection with this contract, the lessee and lessor state their domiciles to be in the jurisdiction of the judges of the Managua Department.” After hearing on the motion, the trial court entered the order appealed denying the motion for change of venue. We affirm.
First, it is doubtful whether the covenant established venue per contract or is merely a provision providing which law will govern the interpretation of the underlying agreement. It appears to be, in fact, the latter. Cf., Department of Motor Vehicles, etc v. Mercedes-Benz of North America, Inc., 408 So. 2d 627 (Fla. 2d DCA 1981); Hirsch v. Hirsch, 309 So. 2d 47 (Fla. 3d DCA 1975); Hunt v. Hunt, 280 So. 2d 63 (Fla. 4th DCA 1973).
Further it is clear that from the actions of the defendant in failing to raise the issue in some four years of litigation and in seeking affirmative relief in this jurisdiction, such as a non-resident cost bond, the defendant has waived the right to insist on contractual venue, even if it was valid in the first instance. Inverness Coca-coca Bottling Company v. McDaniel, 78 So. 2d 100 (Fla.1955); Straske v. McGillicuddy, 388 So. 2d 1334 (Fla. 2d DCA 1980); Aquaco, Inc. v. Hopkin, 323 So. 2d 678 (Fla. 3d DCA 1975); Fla.R.Civ.P. 1.140(b).
Therefore for the reasons above stated, the order under review be and the same is hereby affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Manrique v. Giorgio Fabbri, 474 So. 2d 844 (Fla. 3d DCA 1985)…from its prior decisions and adopt the rationale of the fourth district. Because we conclude that the language of the contract as quoted above merely establishes which law governs in the event of a dispute, see Sanders v. Inversiones Varias, S.A., 449 So. 2d 951 (Fla. 3d DCA 1984), we decline appellants’ invitation. There is no question that the parties are free to include a choice of law clause in a contract without violating any public policy. Department of Motor Vehicles v. Mercedes-Benz of North America…
Authorities Cited
- Inverness Coca-Cola Bottling Co. v. Lottie McDANIEL, 78 So. 2d 100 (Fla. 1955)
- The Dep't OF Motor Vehicles of the State of Fla. v. Mercedes-Benz OF N. Am., Inc., 408 So. 2d 627 (Fla. 2d DCA 1981)
- Patterson v. State, 309 So. 2d 47 (Fla. 1st DCA 1975)
- Straske v. McGILLICUDDY, 388 So. 2d 1334 (Fla. 2d DCA 1980)
- Aquaco, Inc. v. Hopkin, 323 So. 2d 678 (Fla. 3d DCA 1975)
- Hunt v. Hunt, 280 So. 2d 63 (Fla. 4th DCA 1973)
- Raines v. State, 436 So. 2d 1089 (Fla. 3d DCA 1983)
- Sanders v. Inversiones Varias, S.A., 436 So. 2d 1089 (Fla. 3d DCA 1983)