MIAMI – Florida’s Third District Court of Appeals recently reversed a decision by the Miami-Dade County Circuit Court regarding the proper court venue for a Miami man's suit alleging fraud and breach of contract against a Brazilian bank.
In a court opinion filed Oct. 17, Appeals Judge Kevin Emas said the circuit court erred when it denied a motion to dismiss the suit that contended Brazil, not Miami, was the proper venue for the case.
According to court filings, Hamed Wardak opened an account with Estrategia Investimentos USA (Estrategia) in 2013. The suit claims Wardak met with Estrategia representative Pablo Antoniazzi several times in a Miami branch, and Wardak signed a banking agreement and claims he was told he would have “constant access to the funds.” Wardak alleges after wiring $2.7 million into the account, the bank restricted his funds. The bank sent a letter of understanding after the dispute and promised to pay Wardak back the $2.7 million plus interest.
In 2016, the Brazilian government took over the bank, court filings said. Wardack and NCL Holdings Ltd. filed a lawsuit against Antoniazzi, Estrategia and Estrategia Investimentos LLC claiming that none of the money has been returned and alleging “breach of contract, fraud in the inducement, fraudulent misrepresentation, and violations of the Florida Deceptive and Unfair Trade Practices Act.”
The bank filed a motion to dismiss the suit in the Miami court for lack of jurisdiction, starting that the banking agreement contained a forum selection clause that was “mandatory and unambiguous, and that the exclusive forum for this action was Brazil.”
Wardak countered that the forum selection was not mandatory but permissive, claiming that the phrase “branch of the bank” should be” interpreted to include the bank’s office in Miami.”
The trial court denied the bank’s motion, finding that “the forum selection clause lacks sufficient mandatory or exclusive language binding the parties to a specific jurisdiction or venue,” and that the term “branch office” is “nothing more than a location other than the main office,” making the Miami-Dade County Circuit Court a proper venue.
Emas, in the appeals court opinion, disagreed with the circuit court and said that the forum selection clause provision “is mandatory and that the trial court erred in determining that the forum selection clause was permissive.”
Emas noted that the clause specifies that Brazil is “the exclusive jurisdiction for all legal action and the venue for legal proceedings,” stating that the “absence of the term ‘shall’ or ‘must’ does not necessarily render a forum selection clause permissive.”
“The plain language of this contract expresses an unmistakable intent to make the forum provision exclusive … we hold that the nonmutuality of the forum selection clause does not render it invalid or permissive,” the opinion said.
Emas said the trial court erred in ruling that the Miami bank branch was a “branch of the bank,” noting testimony proved the Miami office had no ATM or bank teller and that “under a plain reading of the clause, the office in Miami was not a branch of the bank as that term was used in the banking agreement.”
Emas said, “No ambiguity existed, and no further evidence was necessary to define the term or discern the intent of the parties.”
The trial court ruling was reversed, and the case was remanded for further proceedings.