164 So. 3d 719
Fla. Dist. Ct. App.2015Background
- Credorax (Malta) Ltd., a Maltese acquiring bank, contracted with Canadian consultant John Michaluk under an "Introducer Agreement" to solicit clients and pay transaction fees.
- Paragraph 10 of the Agreement ("Governing Law and Jurisdiction") stated the Agreement "shall be governed by and construed in accordance with the Laws of Malta and each party hereby submits to the jurisdiction of the Courts of Malta as regards any claim, dispute or matter arising out of or in connection with this Agreement."
- After a fee dispute, Michaluk sued Credorax Malta and Credorax USA in Miami-Dade County asserting fraud, FDUTPA violations, unjust enrichment, and breach of contract (against Credorax Malta).
- Defendants moved to dismiss for improper venue, arguing the forum selection clause made Malta the mandatory, exclusive forum. Michaluk argued the clause was permissive.
- The trial court ruled the clause mandatory and dismissed; Michaluk appealed. The parties agreed the clause was unambiguous, so the sole issue on appeal was whether the clause was permissive or mandatory.
- The appellate court reviewed precedent and reversed, holding the clause permissive because it lacked language of exclusivity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the forum selection clause is mandatory (exclusive) or permissive | Michaluk: clause is permissive; it merely consents to Malta jurisdiction and does not bar suits elsewhere | Credorax: clause is mandatory; parties "submit to the jurisdiction of the Courts of Malta" requires suit exclusively in Malta | Held permissive: clause lacks words of exclusivity (e.g., "exclusive", "shall be" or similar); it makes Malta a proper forum but not the only forum |
Key Cases Cited
- Manrique v. Fabbri, 493 So.2d 437 (Fla. 1986) (Florida Supreme Court adopted Bremen rule that forum-selection clauses are presumptively enforceable absent strong reasons not to)
- M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (U.S. 1972) (forum-selection clauses are prima facie valid and generally enforced unless unreasonable or obtained by fraud/overreaching)
- Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So.2d 273 (Fla. 1987) (distinguishes permissive clauses as consents that do not exclude other forums)
- Keaty v. Freeport Indonesia, Inc., 503 F.2d 955 (5th Cir. 1974) (clause stating parties "submit to the jurisdiction" held permissive)
- Espresso Disposition Corp. 1 v. Santana Sales & Mktg. Grp., Inc., 105 So.3d 592 (Fla. 3d DCA 2013) (standard of review and interpretation guidance for forum-selection clauses)
- Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So.2d 827 (Fla. 4th DCA 2004) (clause held mandatory where wording indicated exclusivity: "consent to Broward County ... as the proper venue")
- Celistics, LLC v. Gonzalez, 22 So.3d 824 (Fla. 3d DCA 2009) (clause construed as mandatory where parties "agree to select" a particular forum, indicating exclusivity)
- Sonus-USA v. Thomas W. Lyons, Inc., 966 So.2d 992 (Fla. 5th DCA 2007) (mandatory where provision expressly stated disputes "shall be held" in a specified forum)
- Cardoso v. FPB Bank, 879 So.2d 1247 (Fla. 3d DCA 2004) (similar language construed permissive when read in context despite use of "irrevocably submit")
- Regal Kitchens, Inc. v. O’Connor & Taylor Condo. Constr., Inc., 894 So.2d 288 (Fla. 3d DCA 2005) (clause lacking exclusive language held permissive)