SHOPPES LIMITED PARTNERSHIP, ETC., ET AL., APPELLANTS,
v.
STEVE CONN AND AKEMI Y. YABU, APPELLEES
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Shoppes Limited Partnership appealed a dismissal order based on a forum selection clause in a guaranty. The trial court erred in interpreting the clause as mandatory, requiring litigation exclusively in Massachusetts, when the clause was permissive and merely consented to Massachusetts jurisdiction without excluding other forums.
The forum selection clause is permissive, not mandatory, because it lacks words of exclusivity. A permissive forum selection clause constitutes nothing more than consent to jurisdiction in the named forum and does not exclude jurisdiction in other forums. The trial court erred in construing it as mandatory.
[1] A forum selection clause is mandatory when it uses language indicating exclusivity, requiring suit to be filed in the named forum.
[2] A forum selection clause is permissive when it merely consents to jurisdiction or venue in the named forum without excluding other forums.
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Join FLexlaw to unlock all legal intelligence“permissive forum clauses constitute nothing more than a consent to jurisdiction and venue in the named forum and do not exclude jurisdiction or venue in other forums”
Establishes the legal effect of permissive forum selection clauses under Florida law
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Join FLexlaw to unlock all legal intelligenceShoppes Limited Partnership sought to enforce a guaranty that contained a forum selection clause (paragraph 11) stating the guarantor consents to the …
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COBB, J.
The plaintiff, Shoppes Limited Partnership, appeals from an order dismissing its complaint with prejudice. The order determined that the court lacked jurisdiction over the complaint based on a forum selection clause contained in the guaranty which the plaintiff sought to enforce.
The forum selection clause, paragraph 11 of the guaranty, provided:
Applicable Law. This instrument shall be construed in accordance with the laws of Massachusetts. The Guarantor hereby consents to the jurisdiction of the state and federal courts of the Commonwealth of Massachusetts.
The trial court ruled that paragraph 11 specifically required jurisdiction be in Massachusetts. The trial court’s construction of paragraph 11 as mandating that suit be brought in Massachusetts was erroneous. See Granados Quinones v. Swiss Bank Corp., 509 So. 2d 273 (Fla.1987).1
Florida courts recognize a distinction between mandatory jurisdiction clauses in contracts which require that a particular forum be the exclusive jurisdiction for litigation concerning the contract, and permissive jurisdiction clauses which only provide that there may be jurisdiction over such litigation in a particular forum. Granados, 509 So. 2d at 274. In Granados the supreme court explained that permissive forum clauses constitute nothing more than a consent to jurisdiction and venue in the named forum and do not exclude jurisdiction or venue in other forums.
In considering whether a forum selection clause is permissive or mandatory, the general rule is that such a clause will be considered permissive where it lacks words of exclusivity. Sanwa Bank, Ltd. v. Kato, 734 So. 2d 557 (Fla. 5th DCA 1999). Thus, in Granados the forum selection clause was deemed permissive where it used “may” instead of “shall” to describe the creditor’s ability to choose to take legal proceedings to courts of Guatemala or Panama. Likewise in Sanwa the forum selection clause was not mandatory where it provided that the parties agreed “that the Court having the jurisdiction in the locale in which the head office or branch office of your Bank is located shall be the competent Court”. See also Sander v. Rayman, 800 So. 2d 355 (Fla. 4th DCA 2001) (forum selection clause deemed permissive where it provided “the parties submit to the jurisdiction of any federal court sitting in Chicago” but did not require that actions be filed there).
Conversely forum selection clauses which state or clearly indicate that any litigation must or shall be initiated in a specified forum are mandatory. See e.g. Management Computer Controls, Inc. v. Charles Perry Construction, Inc., 743 So. 2d 627 (Fla. 1st DCA 1999) (“Any action ... arising out of this Agreement shall be initiated and prosecuted in the court of Shelby County, Tennessee, and nowhere else”); Operadora Seryna, S.A. de C.V. v. Banco Bilbao Vizcaya — Mexico, S.A., 762 So. 2d 595 (Fla. 5th DCA 2000) (parties submitted themselves “to the ... courts of ... [Mexico], waiving any other territorial jurisdiction that they may have”).
Paragraph 11, in providing that the “Guarantor hereby consents to the jurisdiction of the state and federal courts” of Massachusetts lacks words of exclusivity. It is a classic permissive forum selection clause doing nothing more than consenting to jurisdiction in Massachusetts but not excluding jurisdiction in another forum. The trial court erred in finding paragraph 11 to be a mandatory forum selection clause.
REVERSED AND REMANDED.
SHARP, W. and PLEUS, JJ., concur. . While the guaranty provides that it shall be construed in accordance with the laws of Massachusetts, issues concerning venue and the validity of forum selection clauses are deemed procedural in nature and governed by the law of the forum state. Kerr Construction, Inc. v. Peters Contracting, Inc., 767 So. 2d 610 (Fla. 5th DCA 2000).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (22 total)
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Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So. 2d 827 (Fla. 4th DCA 2004)…sdiction and venue in the named forum and do not exclude jurisdiction or venue in any other forum.” Id. at 274-275. Generally, a forum selection clause “will be considered permissive where it lacks words of exclusivity.” Shoppes Ltd. P’Ship v. Conn, 829 So. 2d 356, 358 (Fla. 5th DCA 2002). Exclusivity exists where “forum selection clauses state or clearly indicate that any litigation must or shall be initiated in a specified forum,” but not where words such as “may” are used. Id. To be mandatory the clause ne…
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Am. Boxing & Athletic Ass'n, Inc. v. Young, 911 So. 2d 862 (Fla. 2d DCA 2005)…and agree that jurisdiction shall be in Bay City, Michigan,” is, in my view, mandatory language consistent with the analyses in Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So. 2d 273 (Fla.1987), and Shoppes Ltd. Partnership v. Conn, 829 So. 2d 356 (Fla. 5th DCA 2002). In context, the venue provision is neither contradictory nor ambiguous. Nevertheless, because our decision does not turn on whether the venue provision is mandatory or permissive, I agree with the decision to affirm the order…1 / 2
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Golden Palm Hospitality, Inc. v. Stearns Bank Nat'l Ass'n, 874 So. 2d 1231 (Fla. 5th DCA 2004)…olving issues of venue and the validity of forum selection clauses have regarded such issues as procedural and have applied the law of the forum rather than the law selected by the parties.”) (citation omitted); see also Shoppes Ltd. P’ship v. Conn, 829 So. 2d 356 (Fla. 5th DCA 2002). However, as we have previously indicated, the contract in the instant case contains a choice of law provision that requires the contract to be “governed by and construed in accordance with the laws of the State of Minnesota.” T…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So. 2d 627 (Fla. 1st DCA 1999)
- Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So. 2d 273 (Fla. 1987)
- Sauder v. Rayman, 800 So. 2d 355 (Fla. 4th DCA 2001)
- Sanwa Bank, Ltd. v. Shigeru Kato, 734 So. 2d 557 (Fla. 5th DCA 1999)
- Ricks v. State, 767 So. 2d 610 (Fla. 3d DCA 2000)
- Young v. State, 762 So. 2d 595 (Fla. 5th DCA 2000)
- Operadora Seryna v. Banco Bilbao Vizcaya-Mexico, S.A., 762 So. 2d 595 (Fla. 5th DCA 2000)