CYNTHIA RUSSOMANO f/k/a CYNTHIA C. SPALL, an individual, Appellant,
JOSEPH MARESCA, an individual, and JEM PALM BEACH, LLC, a Florida limited liability company, d/b/a PALM BEACH WATERFRONT FITNESS CLUB, Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Catherine M. Brunson, Judge; L.T. Case No.
William H. Pincus and Melanie L. Campbell of Pincus &
Currier LLP, West Palm Beach, for appellant.
A. Levy of Dimond Kaplan & Rothstein, P.A., West Palm
Beach, for appellees.
reverse an order dismissing this case for an improper choice
of venue and remand for the entry of an order transferring
the case to the proper county.
parties here entered into an operating agreement for JEM Palm
Beach, LLC to operate a gym in Palm Beach County. Three years
later, Cynthia Russomano filed a lawsuit against appellees
Joseph Maresca and JEM Palm Beach arising out of the
operating agreement. The operating agreement was attached to
the complaint as an exhibit.
trial court dismissed the case upon the appellees' motion
for change of venue, pursuant to the "Jurisdiction and
Venue" provision of the agreement.
agreement acknowledged that its performance and execution
would occur in Palm Beach County. Nonetheless, the venue
Any civil action or legal proceeding arising out of or
relating to this Agreement shall be brought in Lee County or
the United States District Court, Southern District of
Florida. Each party consents to jurisdiction of such court in
any civil action or legal proceeding and waives any objection
to the laying of venue of any civil action or legal
proceeding in such court.
agreement's choice of Lee County is unambiguous. If a
forum selection clause "'state[s] or clearly
indicate[s] that any litigation must or shall be initiated in
a specified forum, ' then it is mandatory."
Sonus-USA, Inc. v. Thomas W. Lyons, Inc., 966 So.2d
992, 993 (Fla. 5th DCA 2007) (quoting Shoppes L.P. v.
Conn, 829 So.2d 356, 358 (Fla. 5th DCA 2002)). Russomano
did not make a showing that enforcement of the forum
selection clause would be unjust or unreasonable. See
Espresso Disposition Corp. 1 v. Santana Sales & Mktg.
Grp., Inc., 105 So.3d 592, 594-95 (Fla. 3d DCA 2013).
Thus, the trial court did not err in enforcing the choice of
venue provision of the operating agreement. Any claim for
reformation of the choice of venue provision due to mutual
mistake must be pursued in Lee County.
trial court erred in dismissing the case instead of
transferring it to Lee County. We reject appellees'
contention that Golf Scoring Systems Unlimited, Inc. v.
Remedio, 877 So.2d 827 (Fla. 4th DCA 2004), created a
rule of dismissal, rather than transfer.
Rule of Civil Procedure 1.060(b) provides that "[w]hen
any action is filed laying venue in the wrong county, the
court may transfer the action . . . to the proper court in
any county where it might have been brought in accordance
with the venue statutes." Even though the wording of the
rule "is a grant of authority, the word may in
the foregoing rule functions like should."
Chase v. Jowdy Indus., Inc., 913 So.2d 1173, 1175
(Fla. 4th DCA 2005) (emphasis in original).
Scoring did not evaluate the merits of dismissal versus
transfer as the remedy for filing suit in the wrong venue.
That case involved a forum selection clause providing that
Broward County was "the proper venue." 877 So.2d at
828. The plaintiff brought suit in Martin County.
Id. The defendant moved to dismiss based on the
forum selection clause. Id. The trial court denied
the motion, finding the clause permissive. Id. On
appeal, this court ruled the forum selection clause
"clearly indicate[d] that it [wa]s mandatory in
nature." Id. at 829. As such, Broward County
was "the exclusive and mandatory forum in the case at
bar." Id. Without any discussion, this court
reversed and remanded for dismissal, not transfer.
Id. There is nothing in Golf Scoring to
suggest that the notion of a transfer to Broward County was
ever presented to the trial court or to this ...