Summary
holding that where nonsignatory materialman brought action to recover on a payment bond containing a forum selection clause, the materialman was a third-party beneficiary of the bond and was therefore bound by the clause
Summary of this case from Venus Concept U.S. v. The Angelic Body, LLCOpinion
No. 92-00642.
August 12, 1992. Rehearing Denied September 21, 1992.
Appeal from the Circuit Court, Sarasota County, Scott M. Brownell, J.
Kenneth A. Marra of Nason, Gildan, Yeager, Gerson White, P.A., West Palm Beach, for Tuttle's Design-Build, Donald W. Yetter of Ferrell, Ferrell, Yetter Lowe, Bradenton, for Preferred Nat. Ins. Co.
Mark A. Nelson of Harllee, Porges, Hamlin Hamrick, P.A., Bradenton, for appellee.
Tuttle's Design-Build, Inc. (Tuttle's) and Preferred National Insurance Company (Preferred) argue the trial court erred in denying their motions to dismiss the complaint of Florida Fancy, Inc. (Florida Fancy) for improper venue. We agree.
Florida Fancy delivered material to Tuttle's, a landscaping subcontractor, for use in a public construction project located in Palm Beach County. In its complaint filed in Manatee County, Florida Fancy asserted a claim against a payment bond issued by Preferred for Tuttle's pursuant to section 255.05, Florida Statute (1991). Preferred and Tuttle's each filed motions to dismiss the complaint for improper venue on the basis that the language of the bond specifically restricted venue to the county in which the project was located. The trial court denied these motions.
Tuttle's and Preferred contend Florida Fancy, as a third party beneficiary under the payment bond, is bound by the forum selection provision contained in the bond. Forum selection clauses, such as the one under consideration here, are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances. Manrique v. Fabbri, 493 So.2d 437 (Fla. 1986).
We reverse the order denying change of venue and remand allowing the trial court to determine whether circumstances exist which would cause enforcement of the forum selection clause to be unreasonable. Without such a finding, the forum selection clause is valid and enforceable.
Reversed and Remanded.
THREADGILL, A.C.J., and PARKER, J., concur.