Pablo Antoniazzi, et al. v. Hamed Wardak, et al.
No. 3D17-2064
Third District Court of Appeal State of Florida
October 17, 2018
Lower Tribunal No. 17-4154. Not final until disposition of timely filed motion for rehearing.
Rivero Mestre, LLP, and M. Paula Aguila, Andres Rivero, and Alan H. Rolnick, for appellants.
Kopelowitz Ostrow, Ferguson, Weiselberg, Gilbert, and Alexis Fields (Fort Lauderdale), for appellees.
Before SALTER, EMAS and LOGUE, JJ.
EMAS, J.
Pablo Antoniаzzi (“Antoniazzi“), Estrategia Investimentos USA, Inc. (“Estrategia Inc.“), and Estrategia Investimentos, LLC (“Estrategia LLC“) (collectively, “Appellants“) appeal an order denying their motion to dismiss the complaint for lack of jurisdiction, based upon a forum selection clause. We reverse and hold that the forum selection clause is mandatory and unambiguоus, and that application of the mandatory forum selection clause to the instant action required the action to be filed in Brazil.
FACTS AND PROCEDURAL HISTORY
On March 4, 2013, Hamed Wardak and NCL Holdings, Ltd. (collectively “Appellees“) entered into an Agreement for Account Opening (the “Banking Agreement“) with Brazilian bank, Estrategia Investimentos S.A., (“the Bank“). Wardak is the owner оf the bank account and the deposited funds at issue. Antoniazzi was the Bank‘s representative and signed the Banking Agreement on behalf of the Bank. Estrategia Inc. was a strategic trading partner of the Bank, while Estrategia LLC provided financial advising services.
Appellees allege that when they entered into the Banking Agreement with the Bank, thеy were establishing an account for banking services that would provide Wardak with constant access to the funds. After the account was established, Wardak wired $2.7 million dollars into it, but soon afterward, the
On May 5, 2016, the Brazilian government took over the Bank and initiated liquidation proceedings. Thereafter, Wardak and NCL filed an action against Appellants and the Bank,1 sounding in breach of contract, fraud in the inducement, fraudulent misrepresеntation, and violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA“).
Appellants filed a motion to dismiss the complaint for lack of jurisdiction, alleging that the forum selection clause contained in the Banking Agreement was mandatory and unambiguous, and that the exclusive forum for this action was Brazil.
Appellees сountered that the forum selection clause was permissive, and not mandatory and that the forum selection clause permitted Appellees to file in Brazil or in the forum where “the branch of the Bank maintaining the contractual relationship” with Appellee Wardak is located, i.e. Miami. Appellees further maintained that, еven if the clause was mandatory, the term “branch of the Bank” was ambiguous and it should be interpreted to include the Bank‘s office in Miami.
Applicable law—venue for judicial and foreclosure proceedings
All legal relations between the client and the Bank are governed by Brazil law.2 The place of performance, the exclusive jurisdiction for all legal action and the venue for legal proceedings if the client is resident abroad is the place where the head office or branch of the Bank maintaining the contractual relationship with the client is located. To that end, thе client elects the head office or branch concerned as its address for legal service. The Bank nevertheless reserves the right to instigate proceedings in the courts of the client‘s place of residence or before any other competent court.
Following an evidentiary hearing, the trial court denied thе motion to dismiss, finding: “the forum selection clause lacks sufficient mandatory or exclusive language binding the parties to a specific jurisdiction or venue;” and that, even if the clause was mandatory, “venue is proper in Miami-Dade County because a ‘Branch office’ is nothing more than a location other than the main office.”
STANDARD OF REVIEW
The trial court‘s construction of the forum selection clause is subject to de novo review. Celistics, LLC v. Gonzalez, 22 So. 3d 824, 825 (Fla. 3d DCA 2009). The initial determination of whether a contract term is ambiguous is a question of
ANALYSIS
1. Whether the forum selection clause is permissive or mandatory
We hold that the provision is mandatory and that the trial court erred in determining that the forum selection clause was permissive.
The relevant portion of the forum selection clause provides:
The place of performance, the exclusive jurisdiction for all legal action and the venue for legal proceedings if the client is resident abroad is the place where the head office or branch of the Bank maintaining the contractual relationship with the client is located.
(Emphasis added.)
The general rule is that “a forum selection clause will be considered permissive if it lacks 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
In response to the motion to dismiss, Appellees contended, and the trial court agreed, that the forum selection clause lacks words of exclusivity and thus, must be deemed permissive.
Importantly, however, the absence of the term “shall” or “must” does not necessarily render a forum selection clause permissivе. Even in the absence of such “magic words,” a forum selection clause may be deemed mandatory where the language used “does clearly indicate that it is mandatory in nature.” Celistics, 22 So. 3d at 826 (quoting Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So. 2d 827, 829 (Fla. 4th DCA 2004)).
Here the forum selection clause provides: “The place of performance, the exclusive jurisdiction for all legal action and the venue for legal proceedings . . . is the place . . .” (emphasis added). Thus, the plain language of this contract expresses an unmistakable intent to make the forum provision exclusive. See, e.g., Agile Assur. Group, Ltd. v. Palmer, 147 So. 3d 1017 (Fla. 2d DCA 2014) (holding the following forum selection clause mandatory: “Any legal suit, action, claim,
We further reject Appellees’ contention that the lack of mutuality in the forum selection clause renders it permissive, rather than mandatory. The relevant portion of the clause provides:
The place of performance, the exclusive jurisdiction for all legal action and the venue for legal proceedings if the client is resident abroad is the place where the head office or branch of the Bank maintaining the contractual relationship with the client is located. To that end, the client elects the head office or branch concerned as its address for legal service. The Bank nevertheless reserves the right to instigate proceedings in the courts of the client‘s place of residence or before any other competent court.
(Emphasis added.)
A contract will be considered valid even when its obligations are not mutual as long as there is consideration for the contract as a whole. Murry v. Zynyx Mktg. Comm. Inc., 774 So. 2d 714, n. 2 (Fla. 3d DCA 2000). This general proposition of law applies in the instant context, and we hold that the non-mutuality of the forum selection clause does not render it invalid or permissive. See, e.g., Silverman v. Carvel Corp., 192 F. Supp. 2d 1 (W.D.N.Y. 2001) (holding nonmutuality of forum sеlection clause did not render clause invalid even though it restricted venue only in actions brought by plaintiff against defendant but contained no similar restrictions on venue in actions brought by defendant against plaintiff). See also Karl Koch Erecting Co. v. New York Convention Ctr. Dev. Corp., 838 F.2d 656 (2d Cir. 1988); Medoil Corp. v. Citicorp, 729 F. Supp. 1456, 1459 (S.D.N.Y. 1990) (upholding forum selection clause which required accоunt holder to file all legal action “at the location of the Bank‘s office appearing on this Agreement,” while providing that Bank “may bring action against the Account Holder(s) before the courts or any other competent authority at the place of residence of the Account Holder(s) or elsewhere“).4
The trial court concluded alternatively that, even if the forum selection clause is mandatory, the phrase “branch of the Bank maintaining the contractual relationship with the client” was ambiguous. Resolving that ambiguity, the trial court found that Miami-Dade County was a proper forum becаuse the Bank had an “office” in Miami. We hold that the trial court erred in this regard, because there was no ambiguity and, under a plain reading of the clause, the office in Miami was not a “branch of the Bank” as that term was used in the Banking Agreement and therefore could not serve as a proper forum for the action.
That portion of the clause at issue provides:
“[T]he exclusive jurisdiction for all legal action and the venue for legal proceedings if the client is resident abroad is the place where the head office or branch of the Bank maintaining the contractual relationship with the client is located.”
Because Appellees are “resident abroad” (i.e., not living in Brazil), the instant action сould be filed only where (1) the head office is located (i.e., Rio de Janeiro, Brazil); or (2) the branch of the Bank maintaining the contractual relationship with the client is located. The term “branch of the Bank” is not defined in the Banking Agreement.
The Miami office was the location where Wardak met with Antoniazzi, a Bank representative, to negotiate and execute the Banking Agreement. Hоwever, this is insufficient to establish that the Miami office constituted a “branch of the Bank.” It was undisputed that the Bank did not establish or maintain any State-regulated5 or federally-regulated branch offices6 within the United States.7
However, no evidence was presented that the Miami office was a location at which deposits were received, checks paid, or funds withdrawn. Indeed, the affirmative testimony established that the Miami office did not have an ATM machine or a teller. There was no evidence that Appellees ever deposited or withdrew any funds at the Miami office, or that suсh could be done at the Miami office.
The terms “Branch bank” and “Branch office” are defined in Black‘s Law Dictionary:
Branch bank. An office of a bank physically separated from its main office, with common services and functions, and corporately part of the bank. Under the National Bank Act, term at very least includes any placе for receiving deposits or paying checks or lending money apart from chartered premises. Nebraskans for Independent Banking, Inc. v. Omaha Nat. Bank, C.A. Neb., 530 F.2d 755, 764.
“Branch office” of a bank or savings bank includes an office, unit, station, facility, terminal, space or receptacle at a fixed location other than a principal office, however designated, at which any business that may be conducted in a principal office of a bank or savings bank may be transacted. Included in this definition are off-premises electronic bank facilities.
Under Uniform Commercial Code, branch bank includes a separately incorporated foreign branch of bank. § 1-201.
BLACK‘S LAW DICTIONARY, 188 (6th ed. 1991).
See also
CONCLUSION
Because the forum selection clause is mandatory, exclusive and unambiguous, we reverse the trial court‘s order denying Appellants’ motion to dismiss, and remand for further proceedings consistent with this opinion.
EMAS, J.