Summary
holding forum selection clause mandatory despite "seemingly contradictory language" where clause contained words of exclusivity and permissive language
Summary of this case from EcoVirux, LLC v. BioPledge, LLCOpinion
Case No. 3D01-614
Opinion filed July 25, 2001.
An appeal from a non-final order from the Circuit Court for Dade County, Alan L. Postman, Judge. Lower Tribunal No. 00-32906.
Jeffrey P. Shapiro, for appellant.
Hunton Williams and Samuel A. Danon and Alan R. Poppe, for appellee.
Before JORGENSON, COPE and GREEN, JJ.
Copacabana Records, Inc., appeals an order dismissing its lawsuit against WEA Latina, Inc., without prejudice to refile in New York City pursuant to the forum selection clause of the parties' contract. We affirm.
First, we agree with Judge Postman that the forum selection clause is properly viewed as providing that New York City will be the exclusive forum for disputes between the parties pertaining to the agreement. We conclude that the seemingly contradictory language contained in the third sentence of the forum selection clause must be disregarded. "Where two clauses of an agreement are repugnant and cannot stand together, the first shall be received and the latter rejected." Boden v. Atlantic Federal Savings and Loan Association, 396 So.2d 827, 829 (Fla. 4th DCA 1981) (citation omitted).
The forum selection clause states:
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK AND ITS VALIDITY, CONSTRUCTION, PERFORMANCE AND BREACH SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE WHOLLY PERFORMED THEREIN. COPACABANA AGREES TO SUBMIT TO THE JURISDICTION OF THE FEDERAL OR STATE COURTS LOCATED IN NEW YORK CITY IN ANY ACTION WHICH MAY ARISE OUT OF THIS AGREEMENT AND SAID COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER ALL DISPUTES BETWEEN WEA LATINA AND COPACABANA PERTAINING TO THIS AGREEMENT AND ALL MATTERS RELATED THERETO. NOTHING CONTAINED HEREIN SHALL LIMIT WEA LATINA'S RIGHTS TO INSTITUTE SUIT IN JURISDICTIONS OTHER THAN NEW YORK OR CONSTITUTE A WAIVER OF ANY OTHER REMEDIES AVAILABLE TO WEA LATINA.
As held in Manrique v. Fabbri, 493 So.2d 437 (Fla. 1986), "forum selection clauses should be enforced in the absence of a showing that enforcement would be unreasonable or unjust." Id. at 439 (footnote omitted). This requires a showing "that trial in the contractual forum will be so gravely difficult and inconvenient that [the party] will for all practical purposes be deprived of [its] day in court." Id. at 439 n. 4 (citation and internal quotation marks omitted). Copacabana has failed to make the required showing.
Copacabana contends that the lawsuit should remain here because it has in this same lawsuit sued another defendant, Caiman Records, claiming that Caiman has tortiously interfered with the contract between Copacabana and WEA Latina. That fact does not override the contractual forum selection clause. Copacabana's suit against Caiman can proceed without WEA Latina.
Affirmed.