SCOTT FRIEDMAN, APPELLANT,
v.
AMERICAN GUARDIAN WARRANTY SERVICES, INC. AND FIRST COMMUNITY INSURANCE COMPANY, APPELLEES
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Scott Friedman, a Florida resident, purchased an auto service contract online from American Guardian Warranty Services, which contained a venue selection clause designating DuPage County, Illinois as the forum for disputes. When Guardian denied his claim for repair costs, Friedman sued in Broward County, Florida, but the trial court dismissed based on the venue clause. The appellate court affirmed, holding that venue selection clauses are presumptively valid in Florida and that Friedman failed to allege facts bringing his case within recognized exceptions to enforcement.
The venue selection clause is enforceable and the motion to dismiss was properly granted. Friedman failed to allege facts satisfying any of the three exceptions to the presumptive validity of venue selection clauses: fraud, unequal bargaining power, or sole basis for jurisdiction. His claim of fraud by omission fails because he did not allege a duty to disclose, a fiduciary relationship, or that the clause was ambiguous or deliberately concealed.
[1] Venue selection clauses are presumptively valid in Florida, subject to specific exceptions.
[2] Exceptions to the presumptive validity of venue selection clauses include fraud, overwhelming bargaining power, or if the clause is the sole basis for jurisdiction.
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Join FLexlaw to unlock all legal intelligence“In Florida, but for three exceptions, venue selection clauses are presumptively valid.”
Establishes the baseline rule that venue selection clauses are enforceable in Florida unless one of three narrow exceptions applies.
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Join FLexlaw to unlock all legal intelligenceFriedman, a Florida resident working as an intern in Connecticut, purchased an auto service contract from Guardian via the Internet, initially listing…
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J. LEONARD FLEET, Associate Judge.
While working at a summer internship in Connecticut, appellant Scott Friedman (“Friedman”), a Florida resident, utilized the Internet to purchase an automobile service contract from appellee American Guardian Warranty Services, Inc. (“Guardian”). Friedman listed his temporary Connecticut address as his residence on the original application, but later amended it to reflect his domicile as being in Florida. The contract contained the following venue section clause:
Venue: The parties agree that for purposes of litigation the venue shall be in the appropriate judicial district in the County of DuPage, State of Illinois, unless venue is required to be in the state wherein the Service Contract is pur chased. Venue is then deferred to the state’s requirements.
Approximately four months after the contract went into effect, Friedman’s automobile broke down. Contending the cause of the break down was a preexisting condition, Guardian refused to pay the cost of the repair. Friedman brought suit in Bro-ward County alleging, among other things, fraudulent inducement to contract. The trial court granted Guardian’s motion to dismiss on the basis of the venue selection clause. We affirm on the same basis.
In Florida, but for three exceptions, venue selection clauses are presumptively valid. Bombardier Capital, Inc. v. Progressive Mktg. Group, Inc., 801 So. 2d 131, 134 (Fla. 4th DCA 2001). The three exceptions are (1) the forum selection clause is tainted by fraud, or (2) the forum selection clause is the product of overwhelming bargaining power on the part of one party, or (3) the forum selection clause is the sole basis upon which to create jurisdiction in a given forum. Id. at 134. Examination of the amended complaint, the dismissal of which led to the present appeal, fails to reveal allegations which would satisfy any of the three denominated exceptions.
Friedman alleges Guardian perpetrated a fraud upon him by withholding from him the policy “may be governed by Illinois law including the purported venue selection clause.” In essence, Friedman alleges fraud by omission rather than by commission. See State v. Mark Marks, P.A., 698 So. 2d 533 (Fla.1997). The court cannot agree with this proposition. The venue selection paragraph is concise, obvious, and unambiguous.
Fraud based upon a failure to disclose material information exists only when a duty to make such disclosure exists. Id. at 539. This duty arises when one party has information which the other party has a right to know because there is a fiduciary or other relation of trust or confidence between the two parties. Id. Where a party in an arm’s-length transaction undertakes to disclose information, all material facts must be disclosed. Gutter v. Wunker, 631 So. 2d 1117, 1118-19 (Fla. 4th DCA 1994).
The amended complaint does not allege a relationship of trust between Friedman and Guardian, therefore it does not properly allege fraud by concealment. It does not allege the wording of the venue selection clause is obfuscatory in nature or amounted to a partial disclosure of the terms of the contract.1 Because Friedman did not properly allege fraud by concealment or withholding, this case does not come within any of the exceptions to the presumptive enforceability of venue selection clauses. The court below was correct in granting the motion to dismiss.
Because the issue of venue is dispositive, discussion of the remaining points on appeal is not warranted. We note, however, because the case was not dismissed with prejudice, Friedman is free to pursue the matter in the State of Illinois.
AFFIRMED.
SHAHOOD and TAYLOR, JJ, concur. . Although not dispositive in this case, we further note that the contract granted Friedman a thirty-day right to examine the contract and, if dissatisfied, return it for a full refund of his money. The law presumes Friedman to be free of any incapacity that would prevent him from exercising this right. See Campbell v. Stoner, 249 So. 2d 474, 476 (Fla. 3d DCA 1971) ("We first observe that there is a legal presumption of sanity in criminal and civil proceedings.”); see also Schaefer v. Voyle, 88 Fla. 170, 102 So. 7, 8 (1924).
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Citator
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R.J. Reynolds Tobacco Co. v. Matilde C. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010)…lure to disclose the material fact would induce the plaintiffs to act; the tobacco companies had a duty to disclose the material fact; and the plaintiffs detrimentally relied on the misinformation. See Friedman v. Am. Guardian Warranty Servs., Inc., 837 So. 2d 1165, 1166 (Fla. 4th DCA 2003); Gutter v. Wunker, 631 So. 2d 1117, 1118 (Fla. 4th DCA 1994). See generally 21 Patrick John McGinley, Fla. Frac., Elements of an Action, § 17:1 (2009-2010 ed.). The civil conspiracy claim required proof that the class defen…
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Marine Env't P'rs, Inc. v. Johnson, 863 So. 2d 423 (Fla. 4th DCA 2003)…e to follow what we perceive to be the better reasoned approach. The trial court also erred in its alternative reliance on the Colorado venue selection clause. While venue selection clauses are valid, Friedman v. Am. Guardian Warranty Servs., Inc., 837 So. 2d 1165 (Fla. 4th DCA 2003), any objection to venue is waived if it is not raised in the defendants’ answer. Copelco Leasing Corp. v. Besi Photo Shop, Inc., 678 So. 2d 17, 18 (Fla. 4th DCA 1996); MacDonald v. MacDonald, 444 So. 2d 531 (Fla. 1st DCA 1984). T…
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Golden Palm Hospitality, Inc. v. Stearns Bank Nat'l Ass'n, 874 So. 2d 1231 (Fla. 5th DCA 2004)…ich to base jurisdiction. Bombardier; see also M.G.J. Indus., Inc. v. Greyhound Fin. Corp., 826 F.Supp. 430 (M.D.Fla.1993) (holding that a clause that is the product of coercion is unenforceable); Friedman v. American Guardian Warranty Servs., Inc., 837 So. 2d 1165 (Fla. 4th DCA 2003). More specifically, the clause itself must be the product of fraud. Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974); Holder v. Burger King Corp., 576 So. 2d 973 (Fla. 2d DCA 1991); First Pac. Corp…1 / 2
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Schaefer v. Voyle, 88 Fla. 170 (Fla. 1924)
- State v. Mark Marks, P.A., 698 So. 2d 533 (Fla. 1997)
- KEA v. Goodyear Tire & Rubber Co., 801 So. 2d 131 (Fla. 1st DCA 2001)
- Gutter v. Wunker, 631 So. 2d 1117 (Fla. 4th DCA 1994)
- Campbell v. Stoner, 249 So. 2d 474 (Fla. 3d DCA 1971)