UNITED BRANDS, S.A., APPELLANT,
v.
DIAGEO DOMINICANA, S.R.L., F/K/A DIAGEO DOMINICANA, S.A., APPELLEE

Fla. 3d DCA | 2016-12-21
No. 3D16-1544
Before SALTER, FERNANDEZ and LOGUE, JJ.
209 So. 3d 67 Florida District Court of Appeal, Third District (2016)

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Holding

The court held that the trial court did not err in granting a temporary injunction and imposing specific terms, as the parties' unambiguous Resale Agreement contained an exclusive forum selection clause that the appellant violated by filing suit in the Dominican Republic.


Headnotes

[1] A forum selection clause in a contract is enforceable when it is clear and unambiguous.

[2] A party's preemptive filing of a lawsuit in a foreign country can violate an exclusive forum selection clause in a contract.

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Facts & Procedural History

Appellant (United Brands) sued appellee (Diageo Dominicana) in the Dominican Republic, violating an exclusive forum selection clause in their Resale A…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

We affirm the trial court’s well-reasoned order: granting the motion of the appellee (“Diageo Dominicana”) for temporary injunction; imposing the specific terms of the temporary injunction; and requiring a bond in the amount of $10,000.00, in accordance with Florida Rule of Civil Procedure 1.610. The language of the Resale Agreement of July 29, 2009, between Diageo Dominicana and the appellant (“United Brands”) is clear and unambiguous. The Agreement is “governed and construed in accordance with the laws of Florida without giving effect to the principles of choice-of-law ' thereof.” The terms of the Resale Agreement “supersede any prior agreement or understanding and this Agreement may only be modified or amended by a written instrument executed by the parties hereto.”

The parties to the suit below and to this appeal further specified:

Each party hereby irrevocably and unconditionally (a) agrees that any action or proceeding at law or equity, arising out of or relating to this agreement and any other agreements or the transactions contemplated hereby and thereby shall only be brought in the state or federal courts located in Miami-Dade County, Florida (b) expressly submits to the personal jurisdiction and venue of such courts for the purposes thereof and (c) waives and agrees not to raise (by way of motion, as a defense or otherwise) any and all jurisdictional, venue and convenience objections or defenses that such Party may have in such action or proceeding.

Resale Agreement, section 26 (emphasis supplied).

The claims filed preemptively in the Dominican Republic by United Brands against Diageo Dominicana unquestionably violate the exclusive forum and venue provision in the Resale Agreement, prompting the Florida lawsuit and anti-suit injunction. We reject United Brands’ argument that the presence of another putative defendant in the Dominican Republic lawsuit — Mercasid, S.A., Diageo Dominicana’s *69post-termination reseller — precludes the anti-suit injunction, as the injunction does not mention Mercasid and Mercasid is not a party to the Florida lawsuit.1

The federal cases relied upon by United Brands are distinguishable and not persuasive as applied to the record before us. In Canon Latin America, Inc. v. Lantech (CR), S.A., 508 F.3d 597 (11th Cir. 2007), for example, the foreign country suit sought to be enjoined was filed in Costa Rica and asserted violations of Public Law 6209 of Costa Rica. The Costa Rican court rejected the Florida corporation’s jurisdictional challenge to the Costa Rican plaintiffs right to sue in Costa Rica (despite the exclusive forum selection and choice of law provision in the written contract between the parties), finding that the provision “is of no effect, since a public policy law such as 6209 specifies that the jurisdiction of the courts of this country cannot be waived in this type of dispute.” Id. at 600 n.3. United Brands has pointed to no such anti-waiver statute in the Dominican Republic that would apply to the claims and record before us.

Finally, other federal cases adopting a more stringent consideration of the “same parties” and “complete disposition” tests2 do not bind our consideration of the legal issue in this case. In applying Florida contract law and our statutes regarding choice of law and jurisdictional provisions, sections 685.101 and 685.102, Florida Statutes (2015), a federal court for this district would ordinarily follow applicable decisions of our Florida Supreme Court or District Court of Appeal. Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 775 (11th Cir. 2000). We find no such state appellate decision that would prohibit the temporary injunction entered in the present case. We thus decline to apply federal decisions outside of Florida, which seem to suggest that the joinder of Mercasid in the Dominican lawsuit would, in and of itself, preclude an anti-suit injunction in Florida.3

For all these reasons, we affirm the temporary injunction. The temporary stay pending appeal ordered by this Court on July 19, 2016, will be vacated by separate order.


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