Third District Court of Appeal
State of Florida
Opinion filed August 23, 2023.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-1100
Lower Tribunal No. 22-1631
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Royal Caribbean Cruises Ltd.,
Appellant,
vs.
Ean-Hui Ooi,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, David C. Miller, Judge.
Hamilton, Miller & Birthisel, LLP, and Jerry D. Hamilton, Carlos J.
Chardon and Michael J. Dono, for appellant.
Lipcon, Margulies & Winkleman, P.A., and Jason R. Margulies,
Michael A. Winkleman, and Jacqueline Garcell, for appellee.
Before EMAS, MILLER and BOKOR, JJ.
EMAS, J.
INTRODUCTION
Ean-Hui Ooi, an Australian citizen, filed a negligence action in Miami
against Royal Caribbean Cruises, Ltd. (Royal Caribbean) alleging that, while
a passenger on a Royal Caribbean cruise, she sustained injuries during a
shore excursion to a volcano in New Zealand. Royal Caribbean moved to
dismiss the action on several grounds, including improper venue based on
a forum selection clause in the passenger ticket contract between Ooi and
RCL Cruises, Ltd. (RCL), a separate but related United Kingdom entity. The
trial court denied Royal Caribbean’s motion to dismiss, and this appeal
follows.
Royal Caribbean contends, inter alia, that the trial court failed to hold
an evidentiary hearing on its motion, and further erred in failing to make an
express finding that the forum selection clause does not apply to Ooi’s claims
or an express finding that enforcement of the clause would be unreasonable
or unjust. We find no error in the trial court’s order and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2019, Ooi was a cruise passenger aboard the Ovation of
the Seas, a vessel operated by RCL, a United Kingdom entity separate from
defendant Royal Caribbean. During the cruise, Ooi participated in a shore
excursion to the White Island Volcano in New Zealand. Ooi alleges that
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Royal Caribbean approved the promotion and sale of the excursion, and
further alleges that all her arrangements for the shore excursion were made
exclusively with Royal Caribbean.
During the excursion, the volcano erupted, and Ooi sustained severe
burns; other passengers also sustained injuries or died from injuries caused
by the volcanic eruption. The disaster resulted in numerous lawsuits against
Royal Caribbean, filed both in Miami and abroad. The passenger lawsuits
maintain generally that the eruption was foreseeable because, weeks before
the accident, the volcano had shown signs that an eruption was likely to
occur, e.g., the volcanic alert level was increased to the highest level
possible without an actual eruption.
Significant to this appeal, the passenger ticket contract—between Ooi
and RCL—includes a forum selection clause: “We both agree that any
dispute or claim will be dealt with by a court located in New South Wales,
Australia to the exclusion of any other state, territory or country.”
In December of 2020 (approximately one year after the incident), Royal
Caribbean initiated proceedings in the Federal Court of Australia, seeking
(1) a declaration that any disputes between Australian passengers would be
subject to the exclusive jurisdiction of the courts of New South Wales; and
3
(2) an anti-suit injunction restraining Australian passengers from pursuing a
lawsuit against Royal Caribbean in Florida.
The Australian Court conducted a multi-day evidentiary hearing on the
matter, at which Royal Caribbean presented evidence to support its position.
Following that hearing, the Australian Court applied the laws of New South
Wales in interpreting the Australian passenger ticket contract, and rendered
a judgment 1 finding:
• Royal Caribbean was not a party to the Australian passenger ticket
contract;
• The passenger ticket contract was limited to RCL and Australian
passengers;
• The forum selection clause in the Australian passenger ticket contract
did not extend to Royal Caribbean;
Accordingly, it rejected Royal Caribbean’s request for an anti-suit
injunction pertaining to Australian passengers’ lawsuits against Royal
Caribbean in Florida.
1
While the foreign judgment was not filed below, the affidavits submitted by
Royal Caribbean in support of its motion to dismiss (as well as its briefs on
appeal) do not contest the accuracy of Ooi’s representation of the Australian
Court’s proceedings and findings.
4
In January 2022, Ooi filed the underlying Miami lawsuit against Royal
Caribbean, ID Tours New Zealand Limited and White Island Tours Limited.
In a ten-count complaint, Ooi alleged, in pertinent part:
• Count I: Royal Caribbean is collaterally estopped from arguing that
Ooi cannot sue Royal Caribbean in Miami and/or that her claims are
limited to RCL and subject to the New South Wales forum selection
clause.
• Count II: Royal Caribbean is judicially estopped from arguing that the
Australian Court’s ruling has no legal force or effect on this matter
and/or that RCL (as opposed to Royal Caribbean) controlled all
aspects of the sale of shore excursions.
Royal Caribbean filed an “Omnibus Motion to Dismiss Plaintiff’s
Complaint as a Sham Pleading and to Dismiss With Prejudice for Improper
Venue and for Failure to State a Claim.” For our purposes, the motion sought
dismissal for improper venue based on the forum selection clause in the
passenger ticket contract. The motion further sought an evidentiary hearing
for the trial court to consider the matter, and attached affidavits from Royal
Caribbean directors, generally setting forth the commercial relationship and
responsibilities between RCL and Royal Caribbean. Ultimately, the trial court
denied the motion without an evidentiary hearing, and this appeal followed.
5
STANDARD OF REVIEW
To the extent the trial court’s order denying the motion to dismiss for
improper venue was based on interpretation of the contract’s forum selection
clause, this court reviews that determination de novo. Carnival Corp. v.
Garcia,
237 So. 3d 1110, 1113 (Fla. 3d DCA 2018) (“As the trial court's order
denying Carnival's motion to dismiss was based on the interpretation of the
contractual forum selection clause, this Court's standard of review is de
novo”). We likewise apply de novo review to an order on a motion to dismiss.
W. Bay Plaza Condo. Ass'n, Inc. v. Sika Corp.,
338 So. 3d 32, 34 (Fla. 3d
DCA 2022) (“[A]n order granting a motion to dismiss [also] presents a pure
question of law and is subject to de novo review”) (quotation omitted).
Accordingly, we accept as true the well-pled and unrefuted allegations of the
complaint. See, e.g., Durkovic v. Park W. Galleries, Inc.,
217 So. 3d 159,
160 (Fla. 3d DCA 2017) (reviewing dismissal based on venue and accepting
as true plaintiff’s assertion that he was a seaman under the Jones Act).
ANALYSIS AND DISCUSSION
The right to select venue belongs to the plaintiff, and it is the
defendant’s burden to plead and prove that such venue is improper.
Interactive Retail Mgmt., Inc. v. Microsoft Online, L.P.,
988 So. 2d 717, 720
(Fla. 2d DCA 2008). However, where the relevant parties executed an
6
agreement with a forum selection clause, such clause is presumed valid and
the party seeking to avoid its application bears the burden “to establish that
trial in the contractual forum will be so gravely difficult and inconvenient that
he will for all practical purposes be deprived of his day in court.” Steiner
Transocean Ltd. v. Efremova,
109 So. 3d 871, 873 (Fla. 3d DCA 2013).
A plain reading of the passenger ticket contract supports the trial
court’s order denying Royal Caribbean’s motion to dismiss for improper
venue. The passenger ticket contract was not between Ooi and Royal
Caribbean, but rather was between Ooi and RCL, a separate entity. The
forum selection clause provides: “We both agree that any dispute or claim
will be dealt with by a court located in New South Wales, Australia to the
exclusion of any other state, territory or country.” (Emphasis added). The
plain language establishes that the forum selection clause applied to the
signatories, RCL and Ooi, and did not extend to Royal Caribbean.
In addition, Royal Caribbean was not entitled to an evidentiary hearing
where the affidavits it submitted failed to place a relevant fact in dispute.
Where a defendant’s motion to dismiss based on improper venue raises a
disputed issue of fact bearing on the question, such an issue generally must
be resolved in an evidentiary hearing. See, e.g., Interactive Retail Mgmt.,
988 So. 2d at 721 (holding that because there were disputed issues of fact
7
concerning the existence of a valid and enforceable forum selection clause,
the trial court should have held an evidentiary hearing before granting the
motion to dismiss for improper venue); Leatherwood v. Cardservice Int'l, Inc.,
885 So. 2d 997, 998 (Fla. 4th DCA 2004) (holding that a factual dispute
concerning the enforceability of a forum selection clause required reversal
of an order dismissing the complaint and remand for an evidentiary hearing).
However, no evidentiary hearing is required if the affidavits do not create a
factual dispute, or if the factual dispute created by the affidavits is not
relevant to the question to be decided by the trial court. Sayers Constr., LLC
v. Timberline Constr., Inc.,
306 So. 3d 275, 278 n. 6 (Fla. 3d DCA 2020) (in
the context of adjudicating a motion to dismiss for lack of personal
jurisdiction, the trial court was not required to hold an evidentiary hearing
where defendant’s affidavit did not create a factual dispute because it did not
contradict the allegations in the complaint). See also Woodruff-Sawyer &
Co., v. Ghilotti,
255 So. 3d 423, 427 (Fla. 3d DCA 2018) (citing Venetian
Salami Co. v. Parthenais,
554 So. 2d 499, 503 (Fla. 1989) (explaining that,
in the context of adjudicating a motion to dismiss for lack of personal
jurisdiction, where the competing affidavits can be harmonized, the trial court
can adjudicate the motion based upon facts which are essentially
undisputed; however, where the relevant facts set forth in the respective
8
affidavits are in direct conflict, a limited evidentiary hearing will be required
to resolve the factual disputes)).
The complaint in this case specifically described the Australian
proceedings and alleged application of collateral estoppel and res judicata
because: the Australian Court, on Royal Caribbean’s behest, held that Royal
Caribbean was not a party to the passenger ticket contract and thus the
forum selection clause did not extend to claims filed against it. The Australian
Court further rejected Royal Caribbean’s request for a declaration that “any
disputes between Australian passengers would be subject to the exclusive
jurisdiction of the courts of New South Wales; and an anti-suit injunction
retaining Australian passengers from pursuing a lawsuit against [Royal
Caribbean] in Florida.” Royal Caribbean’s affidavits do not refute these
allegations.
Furthermore, the construction of an unambiguous provision in a
contract is a question of law for determination by the court. See Volusia
Cnty. v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 131 (Fla. 2000)
(“Where the determination of the issues of a lawsuit depends upon the
construction of a written instrument and the legal effect to be drawn
therefrom, the question at issue is essentially one of law only”); DEC Elec.,
Inc. v. Raphael Const. Corp.,
558 So. 2d 427, 429 (Fla. 1990) (“Ordinarily
9
the interpretation of a written contract is a matter of law to be determined by
the court”) (citing Peacock Constr. Co. v. Modern Air Conditioning, Inc.,
353
So. 2d 840, 842 (Fla.1977) and City of Leesburg v. Hall,
96 Fla. 186, 191,
117 So. 840, 841 (Fla. 1928)); Gemini Ventures of Tampa, Inc. v. Hamilton
Eng’g & Surveying, Inc.,
784 So. 2d 1179, 1180 (Fla. 2d DCA 2001) (“The
interpretation of an unambiguous contract is a question of law for the court.”)
The affidavits submitted by Royal Caribbean thus had no bearing on—and
did not create a relevant factual dispute regarding— the trial court’s purely
legal determination that the forum selection clause, by its plain and
unambiguous terms, applied only to RCL and Ooi, and did not extend to
Royal Caribbean.
In fact, the affidavits filed by Royal Caribbean were offered in support
of a separate and distinct basis for which it sought dismissal: that Royal
Caribbean was not a proper party to the lawsuit filed by Ooi, because the
passenger ticket contract obligated only RCL, and not Royal Caribbean. 2
2
We do not address whether Royal Caribbean (as opposed to RCL) is a
proper party to the negligence claim filed by Ooi. In addition, given our
disposition of this appeal, we do not address whether the principles of res
judicata and collateral estoppel apply in this case. Fernandez v. Cruz,
341
So. 3d 410, 414 (Fla. 3d DCA 2022) (setting forth the elements of res judicata
and collateral estoppel: “[T]he term ‘parties’ has been broadly interpreted to
include more than just record parties—so that, for example, a person in
privity with a record party, as well as a person who controls for his own
interest a record party, may invoke the doctrine of res judicata or collateral
10
Because Royal Caribbean’s affidavits failed to present a disputed factual
issue related to the trial court determination that the forum selection clause
did not apply to the instant lawsuit filed by Ooi against Royal Caribbean, no
estoppel. Privity, in turn, has been defined as mutual or successive
relationships to the same right of property, or such an identification of interest
of one person with another as to represent the same legal right. Synthesizing
these definitions, [f]or one to be in privity with one who is a party to a
lawsuit ..., one must have an interest in the action such that she will be
bound by the final judgment as if she were a party. In other words, one
party may be said to be a privy of another where the right to recover is
dependent upon the right of recovery of the plaintiff in the prior action.”)
(Emphasis added).
To the extent that principles of comity apply to these circumstances,
they would appear to weigh in favor of affirming the decision of the trial court.
Amezcua v. Cortez,
314 So. 3d 666, 669 (Fla. 3d DCA 2021) (quoting
Cermesoni v. Maneiro,
144 So. 3d 627, 629 (Fla. 3d DCA 2014) (emphasis
added)) (“In Florida, recognition of international final foreign judgments is
governed by statute, while general principles of comity allow for the
discretionary enforcement of certain interlocutory rulings. . . . [C]ourts have
repeatedly approved the enforcement in Florida of temporary injunctions
issued by foreign courts.”) See also Armand v. Amisy,
316 So. 3d 740, 742-
43 (Fla. 3d DCA 2021) (“[A]s a general rule, ... the final judgments of courts
of a foreign country are subject to recognition and enforcement in this
country ....”); Nahar v. Nahar,
656 So. 2d 225, 229 (Fla. 3d DCA 1995) (“[A]ny
foreign decree should be recognized as a valid judgment, and thus be
entitled to comity, where the parties have been given notice and the
opportunity to be heard, where the foreign court had original jurisdiction and
where the foreign decree does not offend the public policy of the State of
Florida.”); Restatement (Second) of Conflict of Law § 102 cmt. g (Am. Law
Inst. 1971). Royal Caribbean does not assert it was denied due process in
the Australian proceedings; indeed, it does not dispute the findings of the
Australian Court in this appeal.
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evidentiary hearing was necessary. 3 Florida High Sch. Athletic Ass’n, Inc. v.
Johnson,
279 So. 3d 794, 796 (Fla. 3d DCA 2019) (quoting Tobin v. A&F
Eng'g,
979 So. 2d 967, 968 (Fla. 3d DCA 2008) (“‘[W]hen a trial court is
presented with a motion to transfer venue based on the impropriety of the
plaintiff's venue selection, the defendant is arguing that, as a matter of law,
the lawsuit has been filed in the wrong forum.’ Where the facts relating to
such venue motion are in dispute, the trial court shall hold an evidentiary
hearing to resolve the factual dispute and then make a legal determination
on venue”) (additional quotations omitted). See also Affinity Internet Inc. v.
Consol. Credit Counseling Servs.,
920 So. 2d 1286, 1289 (Fla. 4th DCA
2006) (“No evidentiary hearing was required because no factual issues were
in dispute and the issue of whether a valid arbitration agreement existed was
a matter of law”); Houchins v. King Motor Co. of Fort Lauderdale, Inc.,
906
So. 2d 325, 329 (Fla. 4th DCA 2005) (noting that, where there are disputed
issues regarding the existence of an agreement to arbitrate, the court is
required to conduct an evidentiary hearing where there are disputed issues
of fact; however, “where the evidence is undisputed, no evidentiary hearing
is necessary”).
3
Tellingly, nowhere in the seventy pages of appellate briefs filed by Royal
Caribbean does it point to a specific, relevant issue of fact that was placed
in dispute and required the trial court to conduct an evidentiary hearing.
12
Finally, a review of the record establishes that Royal Caribbean failed
to raise below the argument it now makes on appeal—that it could enforce
the forum selection clause as a non-signatory or, relatedly, that an
evidentiary hearing was necessary to determine whether the relationship
between it and RCL was such that Royal Caribbean could enforce the forum
selection clause as a non-signatory. See EcoVirux, LLC v. BioPledge, LLC,
357 So. 3d 182, 187 (Fla. 3d DCA 2022) (“Because the claims stem directly
from the contract and the commercial relationship of the parties relates to
the agreement itself, the non-signatories to the agreement, the Barangas,
are equally entitled to enforce the forum selection provision.”) Quite to the
contrary, Royal Caribbean contended in its omnibus motion to dismiss that
it was not a proper party to the lawsuit filed by Ooi, because Ooi entered
into the passenger ticket contract with RCL, not with Royal Caribbean.
Because Royal Caribbean failed to argue to the trial court that it could
enforce the ticket contract’s forum selection clause as a non-signatory (or
that an evidentiary hearing was necessary to resolve disputed facts
regarding the commercial relationship between RCL and Royal Caribbean),
this claim has not been properly preserved and cannot be raised for the first
time on appeal. See, e.g., Venezia v. Wells Fargo Bank, N.A.,
306 So. 3d
1096, 1098 (Fla. 3d DCA 2020) (observing that, generally, the failure to
13
properly raise and preserve a claim in the trial court waives the issue on
appeal) (citing Sunset Harbour Condo. Ass'n v. Robbins,
914 So. 2d 925,
928 (Fla. 2005) and Dade Cty. Sch. Bd. v. Radio Station WQBA,
731 So. 2d
638 (Fla. 1999)).
CONCLUSION
We hold that the failure of the trial court to conduct an evidentiary
hearing was not erroneous because there were no factual issues in dispute
regarding the question of the applicability of the forum selection clause to the
underlying lawsuit filed against Royal Caribbean. Additionally, Royal
Caribbean’s argument that it was entitled to enforce the forum selection
clause as a non-signatory (and that an evidentiary hearing was required to
resolve disputed factual issues regarding that question) was not preserved
below. We find no merit in the remaining arguments advanced by appellant.
Affirmed.
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