“Be Careful What You Ask For” or “Read The Contract Before You Sign It”: Third DCA Reverses For Enforcement Of Forum Selection Clause In Contract Despite Drafting Party’s Claim Of Mistake

Espresso Disposition Corp. 1 v. Santana Sales & Marketing Group, Inc., 3D12-1147

The parties signed an agreement, drafted by Santana, with a forum selection clause that specified Illinois as the venue for any action pertaining to the agreement. However, Santana later sued Espresso in Miami-Dade County for breach of the agreement. Espresso made several motions to dismiss the complaint on the basis of the forum selection clause. Santana claimed that it had mistakenly designated Illinois instead of Florida in drafting the agreement because Santana had used a form contract and simply forgot to change the venue from Illinois to Florida. The trial court denied Espresso’s motions to dismiss.

On appeal, the Third District Court of Appeal (“DCA”) noted that Florida law has long presumed that forum selection clauses in contracts are valid and enforceable. The Third DCA further stated that “the party seeking to avoid enforcement of [a forum selection] clause must establish that enforcement would be unjust or unreasonable” and that Florida law only held that standard is met where enforcement of the clause would effectively result in “no forum at all.” Am. Safety Cas. Ins. Co. v. Mijares Holding Co., LLC, 76 So. 3d 1089, 1092 (Fla. 3d DCA 2011). The Third DCA held that Santana could not establish that it would have “no forum” since the clause specified Illinois, which obviously has a functioning system of state courts. The court also held that it would be reversible error for a court to ignore a plain and unambiguous, mandatory forum section clause.

In a final warning to all practitioners, the court stressed that although modern computer word processing programs have eliminated the outdated need to physically cut and paste language between documents, “what has not been eliminated is the need to actually read and analyze the text being pasted,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.” The court finished by telling Santana, “Be careful what you ask for.” The Third DCA reversed the trial court’s denial of the motions to dismiss, and remanded for dismissal.

Caproc Third Ave., L.L.C. v. Donisi Ins. Inc., and Donosi, 4D09-4792
June 1, 2011

The Fourth District wrote to address the issue of who may properly deny facts set forth in a judgment debtor’s affidavit for exemption under section 222.12, Florida Statutes.  Caproc Third Avenue, LLC (“Caproc”) obtained a final judgment against Charles Donisi. A writ of garnishment was issued against Donisi’s personal bank accounts. Donisi filed an Emergency Motion to Dissolve the Writ and executed an affidavit asserting his accounts were exempt from garnishment. In response, Caproc’s attorney filed an “attorney’s affidavit” that denied under oath the facts set forth in Donisi’s affidavit.  The trial court dissolved the writ and found the affidavit filed by Caproc’s attorney legally insufficient to satisfy Caproc’s burden under §222.12 to deny the facts under oath.

Caproc appealed, arguing that it was permissible under the statute for its attorney to execute the sworn denial of the debtor’s exemption affidavit. The Fourth District disagreed, holding that the language of the statute was clear and unambiguous in its requirement that the party who sued out the process, and not the party’s attorney, deny under oath the facts set forth by the debtor.  The Court stated S. Attractions, Inc. v. Grau for the proposition that “[u]nder a statute requiring an affidavit to be made by a particular person himself, his agent or attorney cannot make it.” 93 So.2d 120, 125 (Fla. 1967).  The Fourth District affirmed the dissolution of the writ.