BCD EDGEWATER, LLC
v.
EL2 DEVELOPMENT, LLC AND RAFAEL STERNBUCH
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A party waives a venue objection based on a forum selection clause by failing to assert it in its first motion to dismiss or answer filed within twenty days of service, and the filing of amended pleadings does not revive a waived venue defense.
[1] A party waives a venue objection based on a contractual forum selection clause by failing to assert the defense in its first motion to dismiss or answer filed within twen…
[2] The filing of amended pleadings does not revive or resurrect a venue defense that was waived in response to the original pleading.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“when objecting to venue based on a contract's forum selection clause, a defending party must do so at its first opportunity—either in a motion to dismiss or answer filed within twenty days of service of the opposing cause of action.”
Establishes the procedural requirement for timely assertion of forum selection clause defenses.
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Join FLexlaw to unlock all legal intelligenceBCD Edgewater and Rafael Sternbuch were defendants in a property title dispute brought by EL2 Development. Sternbuch filed a crossclaim against Edgewa…
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FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case No. 5D2024-0873 LT Case No. 2021-11737-CIDL _____________________________
BCD EDGEWATER, LLC,
Appellant,
v.
EL2 DEVELOPMENT, LLC, and RAFAEL STERNBUCH,
Appellees. _____________________________
Nonfinal appeal from the Circuit Court for Volusia County. Rose Marie K. Preddy, Judge.
Joseph Zelmanovitz, of Stahl & Zelmanovitz, New York, New York, and Dennis R. Haber, of Dennis R. Haber, PA, Miami, for Appellant.
William E. Calnan, of The Tarich Law Firm P.A., Hollywood, for Appellee, Rafael Sternbuch.
No Appearance for Remaining Appellee.
June 25, 2025
SOUD, J.
Appellant BCD Edgewater, LLC appeals the trial court’s denial of its motion to dismiss Appellee Rafael Sternbuch’s amended crossclaim, which argued in part that dismissal was required based on a contractual forum selection clause. We have jurisdiction. See Art. V, § 4(b)(1), Fla. Const.; Fla. R. App. P. 9.130(a)(3)(A). We affirm because Edgewater waived this defense. Ownership of certain property in Volusia County, Florida is at issue in this case. Pertinent for our purposes, Appellee EL2 Development, LLC filed a two-count complaint below against Edgewater and Sternbuch, which in essence sought to extinguish all competing claims of title to the subject property. Sternbuch filed his answer, together with his counterclaim against EL2 and crossclaim against Edgewater.1 Thereafter, Edgewater moved to dismiss Sternbuch’s crossclaim but, importantly, did not challenge venue. Edgewater’s motion was granted in part and denied in part, and Sternbuch was given leave to file an amended crossclaim. After Sternbuch filed his amended crossclaim, Edgewater again moved to dismiss, arguing—for the first time—that dismissal was required because, inter alia, venue could not lie in the Seventh Circuit of Florida because operable mandatory forum selection clauses required the subject action be brought in Delaware. Ultimately, after Sternbuch again amended his crossclaim, Edgewater again moved to dismiss, specifically challenging venue on the basis that the mandatory forum selection clause in the Loan Agreement with non-party Lexington Holdings, LLC2 required dismissal. The trial court ultimately rejected Edgewater’s venue argument, denied its motion, and ordered Edgewater to answer Sternbuch’s amended crossclaim.
4 original crossclaim, and Edgewater did not raise the forum selection clause at that time, it may not do so upon Sternbuch’s filing his amended crossclaim. See MacDonald v. MacDonald, 444 So. 2d 531, 532 (Fla. 1st DCA 1984) (“A motion directed to an amended pleading cannot raise objections to retained portions of an original pleading when such objections were available and not urged or unsuccessfully urged on motion to the original pleading.” (quoting Beach Dev. Corp. v. Stimson, 159 So. 2d 113, 115 (Fla. 2d DCA 1963))). Accordingly, as Edgewater waived its argument that dismissal was required because the forum selection clause required Sternbuch’s claim be brought in Delaware, the trial court’s order denying the motion to dismiss is AFFIRMED. It is so ordered.
MAKAR and BOATWRIGHT, JJ., concur.
_____________________________
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________
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