Forum Selection Clause Enforced over Objection that Insertion of Clause was “Cutting and Pasting” Error

In Espresso Disposition Corp. 1 and Rowland Coffee Roasters, Inc. v. Santana Sales & Marketing Group, Inc., No. 3D12-1147 (Fla. 3d DCA, November 14, 2012), Espresso Disposition Corporation 1 (“appellant”) sought review of the trial court’s order denying motions to dismiss a third amended complaint on grounds that the subject agreement contained a mandatory forum selection clause requiring that all lawsuits brought under the agreement shall be in Illinois.

The subject provision provided as follows: “The venue with respect to any action pertaining to this Agreement shall be the State of Illinois.  The laws of the State of Illinois shall govern the application and interpretation of this Agreement.”

Despite this clause, the appellee filed suit against the appellant for breach of contract in Miami-Dade County, Florida.  The appellee thrice amended its complaint, and in the last amendment, it was alleged that the forum selection clause was a mistake that was made at the time the agreement was drafted.  Specifically, an affidavit indicated that the appellee’s principal copied a form version of an agreement between different parties, and by mistake, forgot to change the venue provision from Illinois to Florida.  In response to the third amended complaint, the appellants filed a motion to dismiss seeking to enforce the forum selection clause; the motion was denied, and in its opinion the Third District Court of Appeal reversed and remanded for entry of an order dismissing the third amended complaint.

In its reasoning, the Third District Court of Appeal discussed the presumptive validity of forum selection clauses under Florida law.  A party seeking to avoid enforcement of such a clause must establish that enforcement would be unjust or unreasonable.  Under Florida law, the clause is only considered unjust or unreasonable if the party seeking avoidance establishes that enforcement would result in “no forum at all.”  In connection with this standard, the court reasoned that “there is absolutely no set of facts that Appellee could plead and prove to demonstrate that Illinois state courts do not exist.”  It was further noted that the clear language of the forum selection clause indicated that it was mandatory.

Last, but not the least, the appellate court addressed the appellee’s argument based on the “cutting and pasting” error, stating:  “Of course, the origin of ‘cutting and pasting’ comes from the traditional practice of manuscript-editing whereby writers used to cut paragraphs from a page with ‘editing scissors,’ that had blades long enough to cut an 8½"-wide page, and then physically pasted them onto another page…Today, the cut, copy, and paste functions contained in word processing software render unnecessary the use of scissors or glue.   However, 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.  Thus, in reviewing the mandatory selection clause which Appellant seeks to enforce, we apply the legal maxim “be careful what you ask for” and enforce the pasted forum.” Id. (emphasis added).

Forum selection clauses are a crucial aspect of all contracts and agreements as they determine the locale in which a dispute arising under the contract will be resolved.  At Schecter Law, we can provide you with legal advice on how to carefully draft your contracts from both a transactional and a litigation perspective.  You can reach one of our experienced attorneys at (954) 779-7009.