ALLSTATE INSURANCE

v.

ALL INSURANCE RESTORATION SERVICE

Before: TRAWICK, WALSH, and SANTOVENIA, JJ.

SANTOVENIA, J.

This matter involves a Petition for Writ of Certiorari filed by Allstate Filing # 117089372 E-Filed 11/22/2020 09:34:01 Factual and Procedural Background Respondent, All Insurance Restoration Services, Inc. (“Respondent” or “AIRS”) filed a complaint for damages against Allstate seeking to recover homeowner’s insurance benefits for mold mitigation services rendered by AIRS to Allstate’s alleged insured, “Lidia Salina” based on her purported assignment to AIRS. Allstate moved to dismiss Respondent’s complaint, or in the alternative, for a more definite statement because the complaint did not include any information identifying the alleged assignor or the insured property other than the name “Lidia Salina.” The complaint did not provide a policy number, property address, or any other identifying information regarding the policy, claim, or the place where the alleged services were rendered. AIRS also failed to attach to the complaint a copy of the policy and the assignment of benefits agreement in violation of Florida Small Claims Rule 7.050(a)(1). The initial complaint generally alleged that venue was proper in Miami-Dade County because a breach of the insurance policy occurred in Miami-Dade County and that AIRS was unable to find the policy number or policy to support its complaint. [*3] Prior to filing its motion to dismiss, Allstate contacted AIRS because Allstate was unable to find any Florida policyholder by the name of “Lidia Salina” and requested that AIRS provide more information. AIRS did not respond to this request. Allstate filed the affidavit of its representative, Lauren Collins in support of its motion to dismiss. The Collins affidavit stated that Allstate could find no individual named “Lidia Salina” in its Florida database, as follows: Allstate does service Standard Flood Insurance Policies (“SFIPs”) as part of the National Flood Insurance Program (“NFIP”) in the State of Florida, and previously insured a “Lidia Salinas” for flood damage pursuant to an SFIP. Ms. Salinas’s SFIP terminated on or about March 6, 2010 and was not thereafter renewed by Allstate; however, it is not known if this is the individual referenced in Plaintiff’s Complaint. Both Castle Key Insurance and Castle Key Indemnity write homeowners’ insurance policies for properties located in the State of Florida, but neither company has any record of issuing a homeowners’ insurance policy to an individual named “Lidia Salina” as alleged in Plaintiff’s Complaint. Upon receipt of this lawsuit, I personally contacted Plaintiff’s counsel to request more information about the insured named herein, and informed Plaintiff’s counsel as follows:

The complaint does not contain any information for Allstate to be able to identify the claim on which you seek to sue. There is no address for Lidia Salina, who is reportedly the homeowner who assigned her claim to AIRS, your client. There is no policy number, claim number, copy of a policy contract, or even a copy of the Assignment of Benefits to identify the file. I have made several calls to your office over the last two days, and have spoken to Anna each time. She was not able to provide any information to help clear this up. I left my name and contact number, but have not heard back from you.

The Collins affidavit makes clear that Allstate does not write homeowner’s [*4] insurance policies in the State of Florida and that Allstate checked not only its records to ascertain whether “Lidia Salina” was an Allstate insured, but also caused a search to be made of the records of its Florida affiliates, Castle Key Insurance and Castle Key Indemnity for that purpose.

The trial court denied Allstate’s motion to dismiss the initial complaint and granted its motion for more definite statement pled in the alternative. The trial court ordered AIRS to file an amended complaint providing a more definite statement containing the insured’s address and attaching the assignment agreement. The amended complaint filed by AIRS on September 4, 2019, for the first time, indicated that the insured’s property where AIRS provided remediation services was not located in Florida. Rather, the amended complaint stated that services were provided in California at 6025 Bellflower Blvd., Lakewood, CA 90713. The amended complaint continued to list the insured’s name incorrectly as “Lidia Salina”, but also indicated that the insured’s policy number was 0992493371. This policy number, as well as the newly attached assignment agreement, made it possible for Allstate to determine that the insured’s name was not “Lidia Salina” as stated in the original complaint and amended complaint, but rather Lidia Salinas.

[*5] Allstate was thus able to determine that Salinas was not insured by Allstate’s Florida affiliates, but was insured instead by Allstate’s California affiliate for the California property. The amended complaint also indicated that the AIRS entity who was Salinas’s assignee was located in California and that the subject assignment was executed in California and not in Florida. Once the amended complaint was filed and Allstate was able to obtain a certified copy of the insured’s California policy, it became apparent that the subject policy contained a mandatory forum selection clause providing for venue in California. Allstate timely filed a Motion to Dismiss the Amended Complaint for Improper Venue based on the mandatory forum selection clause in the policy. This Motion to Dismiss noted that “Lidia Salinas’s California homeowner’s insurance policy contains a venue-specific endorsement which states as follows: ‘…any and all lawsuits in any way related to this policy shall be brought, heard and decided only in a state or federal court located in California.’” AIRS’ response to Allstate’s Motion to Dismiss the Amended Complaint for Improper Venue did not contain any showing that enforcement of the mandatory forum selection clause would be unreasonable or unjust. Rather, AIRS’ response relied exclusively upon a waiver theory, asserting that Allstate could not move to enforce the mandatory forum selection clause because it had not asserted a venuerelated defense in its motion to dismiss the original complaint. AIRS relied on [*6] Florida Rule of Civil Procedure 1.140 as well as Cassidy v. Ice Queen Intern., Inc., 390 So. 2d 465 (Fla. 3d DCA 1980) in support of its waiver argument. The Motion to Dismiss for Improper Venue was heard by the trial court on February 19, 2020 (“Hearing”). At the Hearing, Allstate argued that (1) the original complaint contained no information which would have allowed Allstate to locate the correct insured and policy; (2) Allstate’s representative had submitted an affidavit indicating that she could not locate the insured with the limited information provided in the original complaint; (3) Allstate’s representative attempted to obtain the correct information from AIRS’ counsel prior to the filing of Allstate’s motion to dismiss the original complaint and had received no response; (4) Allstate promptly raised the mandatory forum selection clause as grounds for dismissal as soon as AIRS provided sufficient information for Allstate to locate a certified copy of the insured’s policy; and (5) no showing had been made or could be made by AIRS to prevent enforcement of the mandatory forum selection clause, requiring that the case be dismissed. The trial court denied Allstate’s Motion to Dismiss for Improper Venue and entered a written order on February 19, 2020. The Order did not contain any findings of fact or conclusions of law. Allstate timely filed an appeal of the Order2 and its [*7] Petition followed. Certiorari Review The party petitioning for common-law certiorari review of a non-final order must demonstrate that the contested order constitutes “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on post judgment appeal.” Bd. of Trustees of Internal Improvement Fund v. American Educational Enterprises, LLC, 99 So. 3d 450, 454 (Fla. 2012) (citing Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) (quoting Bd. of Regents v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002)); see also Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011); Brooks v. Owens, 97 So. 2d 693, 695 (Fla. 1957). A finding that the petitioning party has “suffered an irreparable harm that cannot be remedied on direct appeal” is a “condition precedent to invoking a district court's certiorari jurisdiction.” Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1998); see Williams, supra., 62 So. 3d at 1132 (“The last two elements are jurisdictional and must be analyzed before the court may even consider the first element.”); Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987), superseded by statute on other grounds, § 768.72, reviewable under Rule 4.2, F.A.R., because it does not fall within the classification of orders which may be interlocutorily reviewed pursuant to the provisions of that rule. We hold, however, that …the order denying transfer of the action may, in this court's discretion, be reviewed by common law certiorari. The notice of appeal directed to the trial court's order denying appellants' motion to transfer…is treated as a petition for writ of certiorari, and this cause shall proceed to a determination of the merits of this question in the same manner as if review had initially been sought by certiorari”). [*8] Fla. Stat. (1989); McDonald v. Johnson, 83 So. 3d 889, 891 (Fla. 2d DCA 2012) (“This court considers the second and third prongs first because they are used to determine jurisdiction.”); Killinger v. Guardianship of Grable, 983 So. 2d 30, 32 (Fla. 5th DCA 2008); Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., LLC, 820 So. 2d 445, 448 (Fla. 2d DCA 2002). If the party seeking review does not demonstrate that it will suffer material injury of an irreparable nature, then an appellate court may not grant certiorari relief from a non-appealable, non-final order. See Capital One, N.A. v. Forbes, 34 So. 3d 209, 212 (Fla. 2d DCA 2010). Similarly, if the alleged harm can be remedied on appeal, the harm is not considered irreparable, and thus certiorari relief is not merited. See Pepsi Bottling Grp., Inc. v. Underwood, 8 So. 3d 1260, 1262 (Fla. 1st DCA 2009). A petition for writ of certiorari is an appropriate mechanism to review a venue-related order. See Enfinger v. Baxley, 96 So. 2d 538, 539 (Fla. 1957) (noting that “an order denying a motion to dismiss for improper venue may be reviewed . . . on certiorari”); Kauffman v. King, 89 So. 2d 24, 26 (Fla. 1956) (concluding that certiorari is the proper review mechanism of interlocutory orders denying motions to dismiss for improper venue); Home News Pub. Co. v. U-M Pub., Inc., 246 So. 2d 117, 119 (Fla. 1st DCA 1971) (noting that an “order denying appellants’ motion for transfer…being interlocutory in character, is not reviewable under Rule 4.2, F.A.R.,” but is reviewable on certiorari); Paxson v. Collins, 100 So. 2d 672, 673 (Fla. 3d DCA [*9] 1958) (reviewing by certiorari an order dismissing a complaint for improper venue). The Florida Supreme Court in Kauffman considered erroneous orders concerning venue to be one type of “exceptional case” where certiorari was appropriate, as it involved irreparable harm because the remedy on final appeal would mean re-litigating the entire case in the correct venue, which the Kauffman court deemed “inadequate.” The Court stated: It is only in exceptional cases, such as those where…the interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate, that this court will exercise its discretionary power to issue the writ…The instant case is an exceptional one, under the above rule. The trial judge departed from the essential requirements of the law in denying to the resident defendants a privilege granted to them by statute; and we agree with counsel for the petitioner that it is palpably unjust to require her to incur the expense and be subjected to the inconvenience of defending this suit in Date [sic] County and, in the event of an adverse verdict (which would be reversed by this court on appeal, for the reasons above stated) to have to spend additional time and money to defend it again in Palm Beach County. Her remedy by appeal is, in such circumstances, inadequate.

89 So. 2d at 26. In the instant case, both parties agree that certiorari review by this court is appropriate as AIRS concedes in its Response to the Petition “that the denial of a motion to dismiss for improper venue may result in material injury that could only be corrected via a petition for writ of certiorari”. The irreparable harm to Allstate here is identical to the irreparable harm which the Florida Supreme Court found could not be corrected on post-judgment appeal in [*10] Kauffman: Allstate would be required to incur the expense and inconvenience of defending a suit in Florida through judgment and, once the judgment were reviewed and reversed on a direct appeal on improper venue grounds and the suit were invariably re-filed in the correct venue, California, Allstate would have to spend additional time and money to defend the suit again in California. Finding irreparable harm for the remainder of the litigation that cannot be corrected on post-judgment appeal pursuant to Kauffman, supra., the court’s analysis turns to whether there has been a departure from the essential requirements of the law. Mandatory Forum Selection Clause 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.” See Michaluk v. Credorax (USA), Inc., 164 So. 3d 719, 723 (Fla. 3d DCA 2015); Espresso Disposition Corp. v. Santana Sales & Marketing Group, Inc., 105 So. 3d 592, 594 (Fla. 3d DCA 2013) (quoting Am. Safety Cas. Ins. Co. v. Mijares Holding Co., LLC, 76 So. 3d 1089, 1092); see also Corsec, S.L. v. VMC Intern. Franchising, LLC, 909 So. 2d 945, 947 (Fla. 3d DCA 2005). Under Florida law, a forum selection clause is only considered unjust or unreasonable if the party seeking avoidance establishes that enforcement would result in “no forum at all.” Espresso, supra., 105 So. 3d at 594-95 (citations omitted); see also Golden Palm Hospitality, Inc. v. Stearns Bank Nat'l Ass'n, 874 [*11] So. 2d 1231, 1235 (Fla. 5th DCA 2004). Stated differently, the party seeking to avoid a contractual agreement must establish “that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.”³ Corsec, 909 So. 2d at 947 (quoting Manrique v. Fabbri, 493 So. 2d 437, 440 (Fla. 1986)). In Manrique, the Florida Supreme Court “emphasize[d] that the test of unreasonableness is not mere inconvenience or additional expense” and that absent the requisite showing by “the party seeking to escape his contract”, “there is no basis for concluding that it would be unfair, unjust, or unreasonable to hold that party to his bargain”. Id. at fn 4 (citations omitted). If a venue clause is “mandatory in nature,” Florida courts are obliged to honor it. H. Gregory¹, Inc. v. Cook, 222 So. 3d 610 (Fla. 4th DCA 2017). Mandatory forum selection clauses contained in agreements (using the words “must”, “exclusive,” or “shall”) govern the venue of the action, requiring dismissal of claims brought in an improper venue. See Gold Crown Resort Marketing, Inc. v. Phillpotts, 272 So. 3d 789 (Fla. 5th DCA 2019) (forum selection clauses in California customers’ membership agreements were unambiguously mandatory). See Michaluk, supra., 164 So. 3d at 722-23 (“A forum selection clause will be deemed mandatory where, by its terms, suit may be filed only in the forum named in the [*12] clause… ‘Generally, a forum selection clause is mandatory where the plain language used by the parties indicates ‘exclusivity…For example, “[i]f the forum selection clause ‘states or clearly indicates that any litigation must or shall be initiated in specified forum,’ ” then the clause is mandatory…”) (citations omitted).

In a case factually similar to this case, the court held that the trial court erred in denying a motion to dismiss and failing to enforce a contractual forum selection clause which would have required that lessors’ complaint for breach of lease be brought in California, rather than in Florida. See Straight, Inc. v. Yorba Linda Commercenter Assocs., 594 So. 2d 849, 850 (Fla. 2d DCA 1992). The court found the forum selection clause to be enforceable and recognized that “the modern trend is to enforce reasonable forum selection clauses.” (citing Manrique, supra., 493 So. 2d at 437). In Straight, the court noted that the only connection to Florida was that it was lessee’s principal place of business while the lessor partnership was located in California, as were the leased property and, presumably, the witnesses. Id. The policy issued to Salinas is attached as Exhibit A to Allstate’s Motion to Dismiss for Improper Venue. The forum selection clause in the policy provides that “…any and all lawsuits in any way related to this policy shall be brought, heard and decided only in a state or federal court located in California.” (emphasis added). Given the use of the mandatory word “shall” and the exclusive word “only”, the forum selection clause is mandatory. See Michaluk, supra., 164 So. 3d at 722-23; [*13] Celistics, LLC v. Gonzalez, 22 So. 3d 824 (Fla. 3d DCA 2009); Weisser v. PNC Bank, N.A., 967 So. 2d 327 (Fla. 3d DCA 2007). Allstate’s Motion to Dismiss for Improper Venue cited to Manrique, supra., and other cases for the proposition that a trial court must honor a mandatory forum selection clause unless the non-moving party can show that the clause is unreasonable or unjust. Here, AIRS filed no affidavit in opposition nor did AIRS even attempt to make its required showing in its response to Allstate’s Motion to Dismiss for Improper Venue. As such, AIRS did not meet its burden of proof to show that the mandatory forum selection clause was unreasonable or unjust; ie, that enforcement of the clause would result in AIRS having no forum at all. See Espresso, supra., 105 So. 3d at 594-95; Walbridge, supra., 800 So. 2d at 287; Manrique, supra., 493 So. 2d at 437. Absent such a showing that enforcement of the venue clause would be unreasonable or unjust, the trial court was required to enforce the mandatory forum selection clause. See Manrique, supra., 493 So. 2d at 440 (“We hold that forum selection clauses should be enforced in the absence of a showing that enforcement would be unreasonable or unjust”); Michaluk, supra., 164 So. 3d at 722-23. Accordingly, the trial court failed to comply with the essential requirements of law. Nor is the contractual forum selection clause the sole basis supporting venue in California. Enforcement of the mandatory forum selection clause would not be [*14] unjust or unreasonable as the facts overwhelmingly favor venue in California4. As in Straight, supra., “rather than being unreasonable, the California forum is particularly reasonable.” 594 So. 2d at 850. The July 11, 2017 invoice submitted from AIRS’ California address was addressed to Allstate’s California address. The insured’s property is located in California. The remediation services by AIRS were provided in California. AIRS’ California office sent an invoice to Salinas at her California address. The one-page assignment contract lists AIRS, the assignee, at a California address. The Allstate policy was issued in California. The witnesses would also presumably be located in California.

Waiver Not having shown that venue in California is unjust or unreasonable, AIRS relied instead at the Hearing, and relies in its Response to Allstate’s Petition, solely on the argument that Allstate waived the defense of improper venue by not contesting venue in its motion to dismiss the original complaint. That motion to dismiss was premised only on AIRS’ failure to attach to the complaint a copy of its agreement with “Lidia Salina” in violation of Florida Small Claims Rule 7.050(a)(1). AIRS relies on Florida Rule of Civil Procedure 1.140(b) in support of its 4 The original complaint alleges that the contract was breached in Miami-Dade County and that payment was due in Miami-Dade County. The amended complaint contains those same venue allegations and specifies that “payment on the invoice pursuant to Florida law is due and payable in Miami-Dade County, Florida” (emphasis added). However, neither the one-page assignment contract nor the July 11, 2017 invoice requires payment in Miami-Dade County, both documents being silent as to the required location of payment. [*15] waiver argument. Rule 1.140(b) states, in pertinent part, as follows: Every defense in law or fact to a claim for relief in a pleading must be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: …(3) improper venue... A motion making any of these defenses must be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued must be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated must be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time….. * * * (h) Waiver of Defenses. (1) A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2)… (emphasis added). The author’s note accompanying the original Florida Rule of Civil Procedure 1.140 states in relevant part that: Under prior law, successive motions presenting defenses and objections to pleadings were not only permitted, but, in maintaining the distinction between special and general appearances, were required. The abolition of the special appearance eliminated the need for successive motions, and the rule took the further step of precluding a succession of motions….Successive motions are [now] allowed only (1) when a defense or objection provided for in Rule 1.140 was not available when the prior motion was made upon one or more of the specified defenses or objections, or (2) when the prior or subsequent motion is based upon a defense or objection provided for by statute or by a rule other than Rule 1.140.

(emphasis added). [*16] Courts have found no waiver by a defendant who asserts a defense for the first time in response to an amended complaint where the facts underlying the defense were not apparent in the initial complaint. See Eden Owners Ass'n, Inc. v. Eden III, Inc., 840 So. 2d 419, 420 (Fla. 1st DCA 2003) (“Because we conclude that the appellant failed to set forth an actionable claim based upon breach of the construction contract or other contracts containing arbitration provisions until the second amended complaint, and because the appellees promptly moved to compel arbitration thereafter, the appellees’ responses to the initial and first amended complaints did not constitute a waiver.”); Elegele v. Harley Hotels, Inc., 689 So. 2d 1305, 1307 (Fla. 5th DCA 1997) (“Once the plaintiff has filed an amended complaint, the defendant is entitled to respond to it anew. We see nothing to prevent the defendant from raising new motions or new defenses that were not raised as against the prior, now superseded, complaint. We find no waiver.”). Furthermore, waiver is defined as “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Carnival Corp. v. Booth, 946 So. 2d 1112, 1114 (Fla. 3d DCA 2006). 69A defendant does not waive venue where there is no “intentional or voluntary relinquishment of a known right.” See Voineag v. Kline, 831 So. 2d 783, 784 (Fla. 4th DCA 2002) (defendants did not waive right to change venue when a witness established six months after initiation of lawsuit that [*17] the original venue was improper because the accident had occurred in a different county than the location plaintiff had alleged in its complaint). AIRS also relies upon Cassidy v. Ice Queen Intern., Inc., 390 So. 2d 465 (Fla. 3d DCA 1980) to support its waiver argument. However, AIRS’ reliance upon Cassidy is misplaced. In Cassidy, the appellee-defendant had filed a motion to dismiss in the trial court based on two grounds, neither of which included improper venue. Id. at 466. The trial court granted the motion to dismiss and on appeal, the appellee argued for the first time that improper venue was an additional ground supporting that the trial court’s order granting the motion to dismiss should be affirmed. Id. The appellate court found that the venue argument had been waived because it was not raised below. Id. AIRS additionally relies upon Marine Envtl. Partners, Inc. v. Johnson, 863 So. 2d 423 (Fla. 4th DCA 2003) to support its contention that “[t]he filing of amended pleadings does not revive a waived venue argument.” However, Johnson is distinguishable on its facts, which show no “material difference between the original complaint and the second amended complaint insofar as the relationship to the [agreement at issue] is concerned.” Id. at 427. Rule 1.140(e), Fla. R. Civ. P. governing motions for more definite statement provides, in relevant part, that: If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame [*18] a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading. The motion must point out the defects complained of and the details desired… The trial court granted Allstate’s motion for more definite statement, resulting in the filing of AIRS’ amended complaint. The trial court’s order granting Allstate’s motion for a more definite statement was tantamount to a finding that the original complaint was so vague or ambiguous that Allstate could not reasonably be required to frame a responsive pleading, and that it was entitled to a more definite statement before interposing a responsive pleading. See Rule 1.140(e), Fla. R. Civ. P. The complaint was vague because it not only misspelled the name of the insured, but it also failed to include any information identifying the subject property address, policy number, or date of loss. Also, AIRS had failed to attach a copy of the insurance policy and the assignment of benefits to the original complaint. The trial court’s finding of waiver of Allstate’s right to enforce the mandatory forum selection clause is wholly inconsistent with its order granting Allstate’s motion for a more definite statement.

Moreover, the facts do not support a theory that the defense of venue was waived because Allstate was somehow on notice through the initial complaint that venue was not proper in Miami-Dade County. The original complaint alleges that the contract was breached in Miami-Dade County and that payment was due in Miami-Dade County. Nothing in the complaint even hinted at the fact that the [*19] insured’s property is located in California or that AIRS, the assignee, is located in California and the remediation services by AIRS were provided in California. Moreover, nothing in the complaint indicated that the policy was issued in California. The location of the property in California and the correct name of the insured did not become apparent until AIRS filed its amended complaint because it was ordered by the trial court to do so. It is one thing to say that a defendant has waived the right to assert a defense which is evident from the claims and facts in a complaint, and quite another to say that a defendant has waived a right to assert a defense that is not apparent on the face of the complaint. Contrast Three Seas Corporation v. FFE Transportation Services, Inc., 913 So. 2d 72, 75 (Fla. 3d DCA 2005) (finding waived venue argument not revived by filing of amended pleadings where the amended complaint repeated the identical breach of contract claim which had been made in the original complaint); Marine Envtl. Partners, Inc. v. Johnson, 863 So. 2d 423, 427 (finding waiver where there was no material difference between the original complaint and the second amended complaint insofar as the relationship to the agreement at issue). Allstate is correct in arguing that it could not have waived its right to invoke the mandatory forum selection clause, as it could not knowingly or intentionally waive a right that it did not know it possessed. Here, as to the waiver issue, AIRS filed no affidavit in opposition to Allstate’s affidavit supporting the motion to dismiss the complaint. Notwithstanding, the trial [*20] court disregarded at the Hearing Allstate’s unrefuted affidavit, stating that “the problem is, Allstate should have known this is their insured. She is their insured, and they waived [enforcement of the mandatory forum selection clause].” This was error. The trial court’s denial of Allstate’s Motion to Dismiss for Improper Venue departed from the essential requirements of law because AIRS failed to present any evidence below that enforcement of the mandatory forum selection clause in the policy was unreasonable or unjust, thus mandating enforcement of the clause. Also, the Order departed from the essential requirements of law because there was no waiver under Florida Rule of Civil Procedure 1.140 where Allstate raised the improper venue defense when it became evident from facts and the assignment contract included with the amended complaint- notably information which AIRS had omitted from the original complaint. For the foregoing reasons, the trial court’s denial of Allstate’s Motion to Dismiss the Amended Complaint for Improper Venue constituted a departure from the essential requirements of law resulting in irreparable harm for the remainder of the litigation which cannot be remedied on post-judgment appeal. Accordingly, Allstate’s Petition for Writ of Certiorari is GRANTED, the Order Denying Allstate’s Motion to Dismiss the Amended Complaint for Improper Venue is QUASHED, and this cause is remanded to the trial court with instructions to dismiss the case for [*21] improper venue and for further proceedings in accordance with this opinion. Respondent’s Motion for Attorney’s Fees is DENIED. TRAWICK and WALSH, JJ. concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL

[*22] Copies Furnished to: [email protected] [email protected] Attorney¹@zacariaslaw.com [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]