Opinion
No. 3D19-1426
02-12-2020
Isaac RUDMAN, Appellant, v. NUMISMATIC GUARANTY CORPORATION OF AMERICA, etc., Appellee.
Genovese Joblove & Battista, P.A., and Richard Sarafan and Michael Bild, for appellant. Schwed Kahle & Kress, P.A., and Douglas A. Kahle (Palm Beach Gardens), for appellee.
Genovese Joblove & Battista, P.A., and Richard Sarafan and Michael Bild, for appellant.
Schwed Kahle & Kress, P.A., and Douglas A. Kahle (Palm Beach Gardens), for appellee.
Before EMAS, C.J., and SCALES and LOBREE, JJ.
SCALES, J. Isaac Rudman, the plaintiff below, seeks review of the trial court's June 21, 2019 non-final order granting the defendant below, Numismatic's, motion to transfer venue from the Miami-Dade County Circuit Court to the Sarasota County Circuit Court based upon a forum selection clause contained in Numismatic's online guarantee. Concluding that the online guarantee's forum selection clause is permissive rather than mandatory in nature, we reverse.
Numismatic Guaranty Corporation of America, a Florida corporation, d/b/a Numismatic Guaranty Corporation
I. Background Facts
Rudman is a collector of rare coins. Numismatic, a Florida corporation with its principal place of business in Sarasota, Florida, provides coin grading and coin certification services. On December 28, 2018, Rudman filed the instant action against Numismatic in the Miami-Dade County Circuit Court. Rudman's complaint raises claims for breach of express warranty, negligence and misleading advertising in violation of section 817.41 of the Florida Statutes. Each claim is grounded upon Numismatic's online guarantee of its grading and coin certification services, and stems from Rudman's purchase of coins that, according to Rudman's complaint, Numismatic erroneously graded and certified as genuine.
On February 15, 2019, Numismatic moved to dismiss the complaint or, in the alternative, to transfer venue to the Sarasota County Circuit Court. With respect to venue, Numismatic argued that its online guarantee contained a mandatory forum selection clause requiring all disputes be litigated in Sarasota County. The clause provides:
ALL OTHER CLAIMS UNDER THIS GUARANTEE MUST BE MADE TO NGC. IN SUCH CASE, (A) THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA AS APPLIED TO TRANSACTIONS TAKING PLACE WHOLLY WITHIN FLORIDA BETWEEN FLORIDA RESIDENTS AND (B) SUBJECT TO CONTRARY COMPULSORY LOCAL LAW APPLICABLE TO A NON-US CLAIMANT, CLAIMANTS EXPRESSLY CONSENT TO THE PERSONAL AND SUBJECT-MATTER JURISDICTION OF THE STATE COURTS LOCATED IN AND FOR THE CITY OF SARASOTA, STATE OF FLORIDA AND THE FEDERAL COURTS LOCATED IN AND FOR THE CITY OF TAMPA, STATE OF FLORIDA. (Emphasis removed).
After holding a hearing on Numismatic's motion, the trial court entered the June 21, 2019 non-final order granting the venue aspect of Numismatic's motion and transferred the matter to the Twelfth Judicial Circuit in and for Sarasota County, Florida. The trial court declined to adjudicate any other grounds contained in Numismatic's motion. Rudman appeals this June 21, 2019 non-final order. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(A) (permitting review of non-final orders that concern venue).
The trial court's interpretation of the subject forum selection clause presents a pure question of law that we review de novo . See Regal Kitchens, Inc. v. O'Connor & Taylor Condo. Constr., Inc., 894 So. 2d 288, 290 (Fla. 3d DCA 2005).
"It is well-established that parties to a contract may stipulate to a particular forum in which to resolve future disputes, and such forum selection clauses are presumptively valid." Am. K-9 Detection Servs., Inc. v. Cicero, 100 So. 3d 236, 238 (Fla. 5th DCA 2012). The question presented here is whether the subject forum selection clause is mandatory or permissive in nature.
Although the instant provision does not contain the words "forum" or "venue," "there have been many instances in which Florida courts have interpreted provisions that omit the words ‘forum’ or ‘venue’ and refer only to ‘jurisdiction’ in a particular location to be forum selection clauses." Am. K-9 Detection Servs., Inc., 100 So. 3d at 239. We similarly interpret the instant provision to be a forum selection clause.
Mandatory forum selection clauses "require or unequivocally specify ... that a particular forum be the exclusive jurisdiction for litigation concerning the contract." Regal Kitchens, Inc., 894 So. 2d at 290. Whereas, permissive forum selection clauses "constitute nothing more than a consent to jurisdiction and venue in the named forum and do not exclude jurisdiction or venue in any other forum." Id. at 291. Hence, forum selection clauses that "lack mandatory or exclusive language" are generally found to be permissive. Id.; see also Michaluk v. Credorax (USA), Inc., 164 So. 3d 719, 722 (Fla. 3d DCA 2015) ("Absent words of exclusivity, a forum selection clause will be deemed permissive."). Plainly, the subject provision does not contain the words of exclusivity inherent in mandatory forum selection clauses. We, therefore, have little difficulty concluding that the language in the subject clause is merely permissive and does not require that Rudman's lawsuit be transferred to Sarasota County.
Numismatic argues, though, that this Court's decision in Quick Cash, LLC v. Tradenet Enterprise Inc., 211 So. 3d 1113 (Fla. 3d DCA 2017) compels a different result. We disagree. In Quick Cash, LLC, the plaintiff filed a civil action in Florida and the defendant moved to dismiss for lack of jurisdiction and improper venue based on a forum selection clause contained within the parties' contract. Id. at 1113. The contract's forum selection/choice of law clause provided, in relevant part, that: "This purchase order shall be deemed entered into and performed in the State of California and Buyer consents to the jurisdiction of the State of California for purposes of enforcement of the terms hereof. " Id. (some emphasis deleted). Looking past the "consents to the jurisdiction" language, the Quick Cash, LLC court found that the remainder of the sentence (bolded above) contained the requisite words of exclusivity such that "[w]ere this case to proceed in Florida, the words of exclusivity in the clause would be rendered meaningless." Id. at 1114. In sum, we concluded in Quick Cash, LLC that we could not construe that contract's venue provision as permissive, while also giving effect to the contract's choice of law provision. This Court, therefore, concluded that the venue provision was mandatory, rather than permissive, in nature.
This case is different. Construing the instant forum selection clause as permissive poses no threat to the provision's choice of law clause. In this case, the relevant language of Numismatic's guarantee clearly and distinctly addresses: (i) in subpart A, the choice of law clause, and (ii) in subpart B, the claimants' consent to personal and subject matter jurisdiction. To wit, subpart A unequivocally mandates that Florida law shall apply to claims made under Numismatic's online guarantee; whereas, subpart B provides – without the requisite words of exclusivity – that claimants under the guarantee merely consent to jurisdiction in the Sarasota County Circuit Court. See Michaluk, 164 So. 3d at 726 (recognizing that the use of the words "consents to the jurisdiction," "does not by itself provide the requisite words of exclusivity to render [a] forum selection clause mandatory."); Regal Kitchens, 894 So. 2d at 291-92 ("[A]lthough the venue clause unequivocally states that Florida law shall apply to any litigation of the subcontract, it lacks mandatory language or words of exclusivity to show that venue is proper only in Palm Beach County."). The mandatory choice of law provision and a construction of the venue provision as permissive can co-exist. This distinguishes the instant provision from the provision in Quick Cash, LLC.
We reject Numismatic's argument that the subject forum selection clause's use of the word "expressly" makes the clause mandatory. Black's Law Dictionary defines "expressly" as follows: "In an express manner; in direct or unmistakable terms; explicitly, definitely, directly." Black's Law Dictionary 581 (6th ed. 1990). See Weisser v. PNC Bank, N.A., 967 So. 2d 327, 332 n.2 (Fla. 3d DCA 2007) (applying Black's Law Dictionary's definition of the word "modify" when interpreting a forum selection clause). Simply put, "expressly" is not a synonym for "exclusively."
Indeed, it is subpart B of the instant provision that encompasses venue. See Am. K-9 Detection Servs., Inc., 100 So. 3d at 239. Unlike Quick Cash, LLC, interpreting subpart B as permissive, rather than mandatory, does not render any other part of the provision meaningless. We, therefore, conclude that, consistent with precedent, because subpart B contains no words of exclusivity, it is permissive in nature.
III. Conclusion
The forum selection clause contained within Numismatic's online guarantee is permissive, as it lacks the requisite words of exclusivity to require that Rudman file the instant state court action only in the Sarasota County Circuit Court. We, therefore, reverse the trial court's June 21, 2019 non-final order transferring the instant matter to the Twelfth Judicial Circuit in and for Sarasota County, Florida and remand for further proceedings consistent with this opinion.
Reversed and remanded.