Antoniazzi v. Wardak , 259 So. 3d 206 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed October 17, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2064
Lower Tribunal No. 17-4154
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Pablo Antoniazzi, et al.,
Appellants,
vs.
Hamed Wardak, et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, William Thomas, Judge.
Rivero Mestre, LLP, and M. Paula Aguila, Andrés 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.
INTRODUCTION
Pablo Antoniazzi (“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 unambiguous,
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 of 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, they 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
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Bank restricted his access to the funds. After this dispute arose regarding access
to the funds, the Bank provided Wardak with a letter of understanding, in which it
agreed to return all funds to Wardak with interest. Wardak alleges that none of the
$2.7 million has been returned.
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 misrepresentation, 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 countered 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, even 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.
1 The Bank has not appeared at the trial level or in this appeal.
3
The forum selection clause in the Banking Agreement provides:
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, 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.
Following an evidentiary hearing, the trial court denied the 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
2 Although the Banking Agreement expressly provides for application of Brazilian
law, the parties (in the trial court and on appeal) relied generally upon Florida law
(and persuasive Federal law) in support of their respective positions, and neither
relied upon nor cited Brazilian law. Thus, this court applies Florida law. See, e.g.,
Martinez v. Bloomberg LP, 740 F.3d 211, 223 (2d Cir. 2014); Bailey v. ERG
Enters., LP, 705 F.3d 1311, 1320 (11th Cir. 2013); Chase Manhattan Bank v.
Rood, 698 F.2d 435, 436 n. 1 (11th Cir. 1983).
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law, which we also review de novo. Escobar v. United Auto. Ins. Co., 898 So. 2d
952 (Fla. 3d DCA 2005). If a contract term is ambiguous, requiring the trial court
to resolve factual issues, we review the trial court’s determinations of fact for
competent substantial evidence. Weisfeld-Ladd v. Estate of Ladd, 920 So. 2d
1148, 1150 (Fla. 3d DCA 2006); Laufer v. Norma Fashions, Inc., 418 So. 2d 437(Fla. 3d DCA 1982).
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
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forum named in the clause, whereas “permissive forum selection clauses are
essentially a ‘consent’ to jurisdiction or venue in the named forum and do not
exclude jurisdiction or venue in another forum.” Travel Exp. Inv. Inc. v. AT & T
Corp., 14 So. 3d 1224, 1226 (Fla. 5th DCA 2009) (quoting Shoppes Ltd. P'ship v.
Conn, 829 So. 2d 356, 358 (Fla. 5th DCA 2002)).
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 permissive. 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.” Celestics,
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,
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proceeding[,] or investigation arising out of or relating to this Agreement may be
instituted exclusively in the courts of Makati City and Employee waives any
objections which he may now or hereafter have to such venue of any such suit ...
and irrevocably submits to the personal and subject matter jurisdiction of any such
court”); Golf Scoring Sys., 877 So. 2d at 829.3 Accord, Michaluk v. Credorax
(USA), Inc., 164 So. 3d 719, 725 (Fla. 3d DCA 2015).
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
3 Further, the mere fact that there were two possible fora for Appellees to file an
action (i.e., “the place where the head office or branch of the Bank maintaining the
contractual relationship with the client is located”) does not alter the mandatory
nature of this forum selection clause. See, e.g., Weisser v. PNC Bank, N.A., 967
So. 2d 327, 328 (Fla. 3d DCA 2007) (parties agreed “to the exclusive jurisdiction
of United States District Court for the District of Kansas or the District Court of
Johnson County, Kansas”).
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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 selection 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 account
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
4 Appellees also contend that, because Appellants were non-signatories to the
contract, Appellants do not have standing to enforce the venue provision of the
Banking Agreement. However, this Court has previously held that the mandatory
nature of a forum selection clause “equally applies to the non-signatory defendants
due to the fact that the claims arise directly from the agreement, as well as due to
the nature of the commercial relationship of the parties as it relates to the
agreement itself.” Reyes v. Claria Life & Health Ins. Co., 190 So. 3d 154, 159 n.2
(Fla. 3d DCA 2016) (quoting World Vacation Travel, S.A., v. Brooker, 799 So. 2d
410, 412–412 (Fla. 3d DCA 2001)). See also Citigroup Inc. v. Caputo, 957 So. 2d
98, 102 (Fla. 4th DCA 2007) (holding a non-signatory may invoke a signatory's
forum selection clause where the non-signatory and signatory are related.) Here,
the actions asserted in the complaint arise directly out of the Banking Agreement,
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2. Whether the phrase “branch of the Bank” is ambiguous or
unambiguous
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 because 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 could 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.
and the only commercial relationship between the parties is the banking
relationship governed and established by the Banking Agreement.
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In construing a contract, the legal effect of its provisions should be
determined from the words of the entire contract, which is the best evidence of the
intent of the parties. Prudential Ins. Co. of Am. v. Wynn, 398 So. 2d 502, 503 n. 1
(Fla. 3d DCA 1981) (citing Jacobs v. Petrino, 351 So. 2d 1036 (Fla. 4th DCA
1976)). “If a contract is clear, complete and unambiguous, there is no need for
judicial construction.” Hunt v. First Nat. Bank of Tampa, 381 So. 2d 1194, 1197
(Fla. 2d DCA 1980) (citing Hamilton Constr. Co. v. Bd. of Public Instruction, 65
So. 2d 729 (Fla.1953)). See also All-Dixie Ins. Agency, Inc. v. Moffatt, 212 So.
2d 347 (Fla. 3d DCA 1968).
The Miami office was the location where Wardak met with Antoniazzi, a
Bank representative, to negotiate and execute the Banking Agreement. However,
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
5 See, e.g., §§ 658.23, 663.04-.05, Fla. Stat. (2016) (setting forth application,
licensing and approval requirements before a foreign bank can operate a branch in
Florida).
6 See, e.g., 12 U.S.C. § 3102 (2016) (setting forth application and approval
requirements before a foreign bank can establish and operate a Federal branch or
agency in any State).
7 Though not necessary to our decision, we further note that, at the evidentiary
hearing, Appellants introduced evidence that Appellees were looking to deposit the
$2.7 million into a foreign bank that had no presence in the United States and
would not respond to a subpoena from a court in the United States. The Bank
apparently met these criteria: An attorney who was advising Wardak during the
negotiation of the Banking Agreement testified it was his understanding that the
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Nevertheless, Appellees maintain that the phrase “branch of the Bank” is
ambiguous and, further, that the Miami office should be construed to be a branch
of the Bank because this is where Appellees and the Bank met on two or three
occasions to negotiate and sign the Banking Agreement. The trial court concluded
that the Miami office constituted a branch of the Bank “because a ‘branch office’ is
nothing more than a location other than the main office.”
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 such 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 place 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.
Bank “would not respond to a subpoena for a U.S. court.” The attorney also
acknowledged sending an email advising Wardak that Estrategia Investimentos,
S.A. (i.e., the Bank) “maintains no US presence, so it is perfect.” Thereafter,
Wardak and NCL deposited the funds with the Bank.
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***
“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 § 658.12(4), Fla. Stat. (2016) (providing: “‘Branch’ or ‘branch
office’ of a bank means any office or place of business of a bank, other than its
main office and the facilities and operations authorized by ss. 658.26(4) and
660.33, at which deposits are received, checks are paid, or money is lent”); 12
U.S.C. § 36(j) (2016) (providing: “The term ‘branch’ as used in this section shall
be held to include any branch bank, branch office, branch agency, additional
office, or any branch place of business located in any State or Territory of the
United States or in the District of Columbia at which deposits are received, or
checks paid, or money lent. The term ‘branch’, as used in this section, does not
include an automated teller machine or a remote service unit.”); 12 U.S.C.
§3101(3) (2016) (providing: “For the purposes of this chapter . . . ‘branch’ means
any office or any place of business of a foreign bank located in any State of the
United States at which deposits are received.”) We conclude that the Miami office
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does not fall within the ordinary meaning of the term “branch of the Bank.” No
ambiguity existed, and no further evidence was necessary to define the term or
discern the intent of the parties.
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.
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