Business Law 13th Edition by Frank Cross, Kenneth Clarkson, Roger LeRoy Miller

Exercise 8

IN THE LANGUAGE OF THE COURT CORTIÑAS, J. [Judge]
Espresso Disposition Corporation 1 and Rowland Coffee Roasters, Inc. (collectively "Appellants") seek review of the trial court's order denying their motions to dismiss [Santana Sales Marketing Group, Inc.'s ("Appellee's")] third amended complaint. Appellants claim that the trial court erred in denying their motions to dismiss because the plain and unambiguous language in the parties' * * * agreement contains a mandatory forum selection clause [a provision in a contract designating the court, jurisdiction, or tribunal that will decide any disputes arising under the contract] requiring that all lawsuits brought under the agreement shall be in Illinois.
Espresso Disposition Corporation 1 and Santana and Associates entered into the * * * agreement in 2002. The agreement provides for a mandatory forum selection clause in paragraph 8. The provision states:
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.
However, Appellee filed a lawsuit against Appellants alleging a breach of the agreement in Miami-Dade County, Florida. In fact, Appellee filed four subsequent complaints-an initial complaint, amended complaint, second amended complaint, and third amended complaint-after each and every previous pleading's dismissal was based upon venue as provided for in the agreement's mandatory forum selection clause. Appellee's third amended complaint alleges the forum selection clause was a mistake that was made at the time the agreement was drafted. Additionally, Appellee attached an affidavit [a sworn statement] which states that, in drafting the agreement, Appellee * * * 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, Appellants filed their motions to dismiss the third amended complaint, which the trial court denied.
Florida appellate courts interpret a contractual forum selection clause under a de novo standard of review. [The courts review the issue anew, as if the lower courts had not ruled on the issue.] Likewise, as the trial court's order denying appellant's motion to dismiss is based on the interpretation of the contractual forum selection clause, this court's standard of review is de novo. Therefore, the narrow issue before this court is whether the * * * agreement provides for a mandatory forum selection clause that is enforceable under Florida law. Florida courts have long recognized that forum selection clauses such as the one at issue here are presumptively valid. This is because forum selection clauses provide a degree of certainty to business contracts by obviating [preventing] jurisdictional struggles and by allowing parties to tailor the dispute resolution mechanism to their particular situation. Moreover, forum selection clauses reduce litigation over venue, thereby conserving judicial resources, reducing business expenses, and lowering consumer prices. [Emphasis added.]
Because Florida law presumes that forum selection clauses are valid and enforceable, the 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. There is absolutely no set of facts that Appellee could plead and prove to demonstrate that Illinois state courts do not exist. Illinois became the twenty-first state in 1818, and has since established an extensive system of state trial and appellate courts. Clearly, Appellee failed to establish that enforcement would be unreasonable since the designated forum-Illinois-does not result in Appellee's having "no forum at all."
Further, as we have said on a number of occasions, if a forum selection clause unambiguously mandates that litigation be subject to an agreed upon forum, then it is [an] error for the trial court to ignore the clause. Generally, the clause is mandatory where the plain language used by the parties indicates exclusivity. Importantly, if the forum selection clause states or clearly indicates that any litigation must or shall be initiated in a specified forum, then it is mandatory. Here, the agreement's plain language provides that the venue for any action relating to a controversy under the agreement any litigation "shall be the State ofIllinois." The clear language unequivocally renders the forum selection clause mandatory
Appellee would have us create an exception to our jurisprudence on mandatory forum selection clauses based on their error in cutting and pasting the clause from another agreement. 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 inch-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.
Accordingly, we reverse [the] trial court's denial of the motions to dismiss Appellee's third amended complaint on the basis of improper venue, and remand for entry of an order of dismissal.
Legal Reasoning Questions
1. Compare and contrast a motion to dismiss with other pretrial motions. Identify their chief differences.
2. Why did the appellants in this case file a motion to dismiss?
3. What is the effect of granting a motion to dismiss?
4. Did the court grant or deny the appellants' motion? Why did the court take this action?