259 So. 3d 206
Fla. Dist. Ct. App.2018Background
- Wardak opened an account with Brazilian bank Estrategia Investimentos S.A. under a March 4, 2013 Account Opening Agreement; $2.7 million was deposited and later access was restricted.
- Bank's Banking Agreement contained a forum-selection clause specifying that for clients "resident abroad" venue is "the place where the head office or branch of the Bank maintaining the contractual relationship with the client is located," and that Brazilian law applies.
- The Bank was later taken into liquidation by Brazilian authorities; the Bank did not appear in the Florida proceedings and had no established U.S. branches.
- Appellees (Wardak and NCL) sued Appellants (including Estrategia Inc., Estrategia LLC, and Antoniazzi) in Florida asserting contract, fraud, and FDUTPA claims arising from the account and non-return of funds.
- Appellants moved to dismiss for lack of jurisdiction, invoking the forum-selection clause; the trial court denied the motion, ruling the clause was permissive or ambiguous as to "branch."
- The appellate court reviews contract interpretation de novo and reverses, holding the clause mandatory, exclusive, and that the Miami office was not a "branch."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the forum-selection clause is mandatory or permissive | Clause lacks explicit "exclusive" magic words, so it is permissive | Clause uses "exclusive jurisdiction" and thus is mandatory | Mandatory and exclusive despite lack of words like "shall" or "must" |
| Whether non-mutuality invalidates or makes clause permissive | Lack of mutuality makes clause unenforceable against plaintiffs | Non-mutual clause is enforceable where claims arise from the agreement | Non-mutuality does not render clause invalid or permissive |
| Whether "branch of the Bank maintaining the contractual relationship" is ambiguous | "Branch" can include the Miami office where parties met; thus Miami venue is proper | Miami office was not a statutory/functional branch; clause unambiguous limiting fora to head office or bona fide branch | Phrase is unambiguous; Miami office was not a "branch" and cannot be venue |
| Whether non-signatory defendants may enforce the forum clause | Non-signatories cannot invoke a contract they did not sign | Non-signatories may invoke clause when claims arise directly from the agreement and commercial relationship supports enforcement | Non-signatory Appellants may enforce the clause because claims arise from the Banking Agreement |
Key Cases Cited
- Celistics, LLC v. Gonzalez, 22 So. 3d 824 (Fla. 3d DCA 2009) (distinguishing permissive vs. mandatory forum clauses)
- Espresso Disposition Corp. v. Santana Sales & Mktg. Grp., Inc., 105 So. 3d 592 (Fla. 3d DCA 2013) (clause language showing exclusivity makes clause mandatory)
- Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So. 2d 827 (Fla. 4th DCA 2004) (absence of magic words does not preclude mandatory construction)
- Agile Assur. Group, Ltd. v. Palmer, 147 So. 3d 1017 (Fla. 2d DCA 2014) (example of an explicitly mandatory, exclusive forum clause)
- Weisser v. PNC Bank, N.A., 967 So. 2d 327 (Fla. 3d DCA 2007) (recognizing exclusive selection of multiple fora as mandatory)
- Reyes v. Claria Life & Health Ins. Co., 190 So. 3d 154 (Fla. 3d DCA 2016) (non-signatories may invoke a signatory's forum clause when claims arise from the agreement)