ESPRESSO DISPOSITION CORP. 1 AND ROWLAND COFFEE ROASTERS, INC., APPELLANTS,
v.
SANTANA SALES & MARKETING GROUP, INC., APPELLEE

Fla. 3d DCA | 2013-01-02
No. 3D12-1147
Before CORTIÑAS, ROTHENBERG and FERNANDEZ, JJ.
105 So. 3d 592 Florida District Court of Appeal, Third District (2013) Positive Treatment
Cited by 25 cases

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Synopsis

Espresso Disposition Corp. and Rowland Coffee Roasters appeal the trial court's denial of their motions to dismiss based on a mandatory forum selection clause in a brokerage agreement. The Florida appellate court reversed, holding that the plain language of the clause mandating venue in Illinois is enforceable and that the appellee's claim of drafting error cannot override the unambiguous contractual provision.


Holding

The court reversed the trial court's denial of the motions to dismiss, holding that the brokerage agreement contains an unambiguous, mandatory forum selection clause requiring venue in Illinois that is enforceable under Florida law, and that the appellee's drafting error does not provide a basis to avoid enforcement of the clear contractual language.


Headnotes

[1] A mandatory forum selection clause in a contract is presumptively valid and enforceable under Florida law.

[2] The party seeking to avoid enforcement of a forum selection clause must establish that enforcement would be unjust or unreasonable, typically by showing that no forum wou…

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Key Quotes

“forum selection clauses such as the one at issue here are presumptively valid”

Establishes that Florida law presumes forum selection clauses are enforceable and valid, creating a presumption in favor of enforcement.

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Facts & Procedural History

Espresso Disposition Corporation and Santana and Associates entered into a brokerage agreement in 2002 containing a mandatory forum selection clause s…

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Opinion of the Court
CORTINAS, J.

On Motion for Rehearing

CORTINAS, J.

We grant Santana Sales & Marketing Group, Inc.’s (“Appellee”) amended motion for rehearing, withdraw our former opinion dated November 14, 2012, and substitute the following opinion in its stead:

Espresso Disposition Corporation 1 and Rowland Coffee Roasters, Inc. (collectively “Appellants”) seek review of the trial court’s order denying their motions to dismiss Appellee’s third amended complaint. Appellants claim that the trial court erred in denying their motions to dismiss because the plain and unambiguous language in the parties’ brokerage agreement contains a mandatory forum selection clause requiring that all lawsuits brought under the agreement shall be in Illinois. We agree.

Espresso Disposition Corporation 1 and Santana and Associates entered into the brokerage agreement in 2002.1 The agreement provides for a mandatory forum selection clause in paragraph 8. The provision states:

*594The venue with respect to any action 'pertaining to this Agreement shall be the State of Illinois. The laws of the State of Illinois shall govern the application and interpretation of this Agreement.

(Emphasis added). However, Appellee filed a lawsuit against Appellants alleging a breach of the agreement in Miami-Dade County, Florida. In fact, Appellee filed four subsequent complaints — an initial complaint, amended complaint, second amended complaint, and third amended complaint — after each and every previous pleading’s dismissal was based upon venue as provided for in the agreement’s mandatory forum selection clause. Appellee’s third amended complaint alleges the forum selection clause was a mistake that was made at the time the agreement was drafted. Additionally, Appellee attached an affidavit which states that, in drafting the agreement, Appellee’s principal copied a form version of an agreement between different parties, and by mistake, forgot to change the venue provision from Illinois to Florida. In response, Appellants filed their motions to dismiss the third amended complaint, which the trial court denied.2 Because the trial court erred in denying Appellants’ motions to dismiss that sought to enforce a forum selection clause, we reverse and remand for entry of an order dismissing the third amended complaint.

Florida appellate courts interpret a contractual forum selection clause under a de novo standard of review. Am. Safety Cas. Ins. Co. v. Mijares Holding Co., LLC, 76 So.3d 1089, 1091 (Fla. 3d DCA 2011) (citations omitted). Likewise, “[a]s the trial court’s order denying [appellant’s] motion to dismiss is based on the interpretation of the contractual forum selection clause, this Court’s standard of review is de novo.” Celistics, LLC v. Gonzalez, 22 So.3d 824, 825 (Fla. 3d DCA 2009). Therefore, the narrow issue before this Court is whether the brokerage agreement provides for a mandatory forum selection clause that is enforceable under Florida law.

Florida courts have long recognized that “forum selection clauses such as the one at issue here are presumptively valid.” Corsec, S.L. v. VMC Int’l Franchising, LLC, 909 So.2d 945, 947 (Fla. 3d DCA 2005) (enforcing forum selection clause in agreement that stated: “[t]he parties expressly submit to the jurisdiction of the courts and tribunals of the capital City of Madrid_”). This is because forum selection clauses “provide a degree of certainty to business contracts by obviating jurisdictional struggles and by allowing parties to tailor the dispute resolution mechanism to their particular situation.” Am. Safety Cas., 76 So.3d at 1091 (quoting Manrique v. Fabbri, 493 So.2d 437, 439 (Fla.1986)). Moreover, “[fjorum selection clauses reduce litigation over venue, thereby conserving judicial resources, reducing business expenses, and lowering consumer prices.” Am. Safety Cas., 76 So.3d at 1091.

Because Florida law presumes that forum selection clauses are valid and enforceable, the “party seeking to avoid enforcement of such a clause must establish that enforcement would be unjust or unreasonable.” Am. Safety Cas., 76 So.3d at 1092; see also Corsee, 909 So.2d at 947; Manrique, 493 So.2d at 440, n. 4. Under *595Florida law, the clause is only considered unjust or unreasonable if the party seeking avoidance establishes that enforcement would result in “no forum at all.” Am. Safety Cas., 76 So.3d at 1092 (quoting Corsee, 909 So.2d at 947); see also Golden Palm Hospitality, Inc. v. Steams Bank Nat’l Ass’n, 874 So.2d 1231, 1235 (Fla. 5th DCA 2004) (“Thus, it is generally appropriate for a court in Florida, as a procedural issue, to determine the validity and enforceability of a forum selection clause despite a choice of law provision in the agreement.”). There is absolutely no set of facts that Appellee could plead and prove to demonstrate that Illinois state courts do not exist. Illinois became the twenty-first state in 1818, and has since established an extensive system of state trial and appellate courts. Clearly, Appel-lee failed to establish that enforcement would be unreasonable since the designated forum — Illinois—does not result in Ap-pellee’s having “no forum at all.”

Further, “[a]s we have said on a number of occasions, if a forum selection clause ‘unambiguously’ mandates that litigation be subject to an agreed upon forum, then it is reversible error for the trial court to ignore the clause.” Sonus-USA, Inc. v. Thomas W. Lyons, Inc., 966 So.2d 992, 993 (Fla. 5th DCA 2007). Generally, the clause is mandatory where the plain language used by the parties indicates “exclusivity.” Sonus-USA Inc., 966 So.2d at 993 (quoting Golden Palm Hospitality, Inc., 874 So.2d at 1236. Importantly, “[i]f the forum selection clause state[s] or clearly indicated] that any litigation must or shall be initiated in a specified forum, then it is mandatory.” Sonus-USA, Inc., 966 So.2d at 993 (quoting Shoppes L.P. v. Conn, 829 So.2d 356, 358 (Fla. 5th DCA 2002) (internal quotation marks omitted) (emphasis added). Here, the agreement’s plain language provides that the venue for any action relating to a controversy under the agreement any litigation “shall be the State of Illinois.” See Sonus-USA, Inc., 966 So.2d at 993 (holding that the agreement’s use of the word shall indicated the forum selection clause was a mandatory provision that must be enforced); see also Corsee, S.L., 909 So.2d at 946. The clear language unequivocally renders the forum selection clause mandatory.

Appellee would have us create an exception to our jurisprudence on mandatory forum selection clauses based on their error in cutting and pasting the clause from another agreement. Of course, the origin of “cutting and pasting” comes from the traditional practice of manuscript-editing whereby writers used to cut paragraphs from a page with “editing scissors,” that had blades long enough to cut an 8½" —wide page, and then physically pasted them onto another page. Wikipedia, http://en.wikipedia.org/wiki/Cut,_copy,_ ancLpáste (last visited September 17, 2012). Today, the cut, copy, and paste functions contained in word processing software render unnecessary the use of scissors or glue. However, what has not been eliminated is the need to actually read and analyze the text being pasted, especially where it is to have legal significance. Thus, in reviewing the mandatory selection clause which Appellant seeks to enforce, we apply the legal maxim “be careful what you ask for” and enforce the pasted forum.

Accordingly, we reverse trial court’s denial of the motions to dismiss Appellee’s third amended complaint on the basis of improper venue, and remand for entry of an order of dismissal.3

Reversed and remanded.


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Citator

Cited By (16 total)

  • Michaluk v. Credorax (USA), Inc., 164 So. 3d 719 (Fla. 3d DCA 2015)
    …ies agree that the sole issue on appeal is whether the language of the forum selection clause in the Introducer Agreement is “permissive” or “mandatory.” We review this issue de novo. Espresso Disposition Corp. 1 v. Santana Sales & Mktg. Grp., Inc., 105 So. 3d 592, 594 (Fla. 3d DCA 2013).2 ANALYSIS AND DISCUSSION Our analysis begins with Manrique v. Fabbri, 493 So. 2d 437 (Fla.1986), a case in which the Florida Supreme Court considered the broader issue of whether such contractual forum selection clauses we…
  • Antoniazzi v. Wardak, 259 So. 3d 206 (Fla. 3d DCA 2018)
    …ks words of exclusivity.” Celistics, 22 So. 3d at 826. By contrast, “a forum selection clause is mandatory where the plain language used by the parties indicates ‘exclusivity.’” Espresso Disposition Corp. 1 v. Santana Sales & Mktg. Grp., Inc., 105 So. 3d 592, 595 (Fla. 3d DCA 2013). A forum selection clause will be deemed mandatory where, by its terms, suit may be filed only in the 5 forum named in the clause, whereas “permissive forum selection clauses are essentially a ‘consent’ to jurisdiction o…
  • Reyes v. Claria Life & Health Ins. Co., 190 So. 3d 154 (Fla. 3d DCA 2016)
    …y matters relating to the dispute [as] the proper venue is. in Delaware.” This timely appeal followed.1. We review de novo the interpretation of a contractual forum selection clause. Espresso Disposition Corp. 1 v. Santana Sales & Mktg. Grp., Inc., 105 So. 3d 592 (Fla. 3d DCA 2013). We likewise review de novo an order granting or denying a motion to compel arbitration. Roth v. Cohen, 941 So. 2d 496 (Fla. 3d DCA 2006). ANALYSIS 1. The Forum Selection Clause '“[F]orum selection clauses should be enforced in…

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