County Civil Court: CIVIL PROCEDURE – Venue - trial court did not err in granting Royal Caribbean’s Motion for Change of Venue and transferring circuit court action to Miami-Dade County – forum selection clause in parties’ contract is enforceable and encompasses Plaintiffs’ cause of action filed under the Florida Deceptive and Unfair Trade Practices Act – Order affirmed.  Russo v. Royal Caribbean Cruises, Appeal No. 05-0058AP-88A (Fla. 6th Cir. App. Ct. March 15, 2006). 










                        Appellants,                                              Appeal No. 05-0058AP-88A

                                                                                       UCN 522005AP000058XXXXCV








Opinion Filed  ______________


Appeal from Non-Final Order

Pinellas County Court

Judge Dorothy Vaccaro


Wayne K. Ekren, Esq.

Attorney for Appellant


Scott D. Ponce, Esq.

Attorney for Appellee




            This matter is before the Court on the appeal of Jerry and Jimmie Russo and Frank and Marion Mooney (hereinafter collectively referred to as Plaintiffs) from an Order granting Royal Caribbean’s Motion for Change of Venue and transferring this matter to Miami-Dade County entered June 21, 2005.[1]  Having reviewed the briefs, the record, and pertinent legal authority, and being otherwise fully advised, this Court affirms the trial court’s order as set forth below.

            Plaintiffs were scheduled to depart Florida on September 4, 2004, for a 13-day Alaskan tour/cruise excursion purchased from Royal Caribbean.  Unfortunately, Hurricane Frances was

looming over Florida in early September, so Plaintiffs contacted Royal Caribbean to inquire whether they could fly out a day earlier without additional flight expenses.  They allege, however, that Royal Caribbean said this was not possible and that if they departed early, the cruise line would not be liable for any of the tour/cruise. 

            Therefore, Plaintiffs remained in Florida and claim that, due to hurricane-related flight cancellations, they were unable to depart for Alaska until September 9, 2004.  While they were able to join the cruise at that point, they missed the land portion of the excursion.

            Plaintiffs filed the present action to recover one-half of the fees they paid Royal Caribbean under two theories: (1) the Florida Deceptive and Unfair Trade Practices Act, sections 501.201-.213, Florida Statutes (2005) (DUTPA); and (2) unjust enrichment.  In response, Royal Caribbean filed a Motion to Transfer Venue on the basis of the following contractual clause:

It is agreed by and between passenger and carrier that all disputes and matters whatsoever arising under, in connection with or incident to this contract shall be litigated, if at all, in and before a court located in Miami, Florida, U.S.A., to the exclusion of the courts of any other state, territory, or country.  (original in all capital letters)


  The trial court granted this motion.

            Plaintiffs do not contest the general validity of the choice of forum provision in the contract.  They claim, however, that it is not applicable in this case because (1) a contractual forum selection clause does not control statutory claims; and (2) this action qualifies as “most exceptional case” justifying setting aside the clause.  Both parties acknowledge that de novo review is the appropriate standard in this case.  See Management Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So. 2d 627, 630 (Fla. 1st DCA 1999).

In support of their first argument, Plaintiffs cite Management Computer, in which a Florida construction company sued a Tennessee software supplier for breach of contract, negligent misrepresentation, breach of implied warranty of fitness, and a violation of DUTPA.  Citing a contractual provision that “[a]ny action arising out of this Agreement shall be initiated and prosecuted in the Court of Shelby County, Tennessee, and nowhere else,” the software supplier filed a motion to dismiss based on improper venue.  The trial court, however, denied the motion.  Id. at 630-31.

The First District reversed with regard to the contract, negligence and warranty claims because they all arose out of the contract.  However, the court held that the DUTPA claim was not governed by the forum clause because the claim did “not arise out of the contract, nor [did] it exist solely for the benefit of the parties to the contract.”  Id. at 632.  Recognizing that DUTPA is designed to protect all Florida citizens, the court continued that litigating the DUTPA claim in a foreign jurisdiction “would undermine the effectiveness of the statute.”  Id.

Plaintiffs assert that Management Computer stands for the proposition that DUTPA claims are not governed by contractual forum provisions.  However, the key justification cited by the First District for keeping the DUTPA claim in Florida was that the purposes of DUTPA would be frustrated by litigation in a foreign forum.   Here, however, such a danger is not present because this case would still be litigated in Florida.  The purposes underlying DUTPA may be served just as effectively in Miami-Dade County as they would be in Pinellas County.

More importantly, however, four years after Management Computer, the First District determined that DUTPA claims are not always outside the scope of a contractual forum provision.   In SAI Ins. Agency, Inc. v. Applied Sys., Inc., 858 So. 2d 401 (Fla. 1st DCA 2003), the forum clause at issue provided that “[t]he parties consent to the sole and exclusive jurisdiction and venue of the state and federal courts of the State of Illinois for any action or claim between the parties.”  Id. at 402.  Rejecting the argument that Management Computer established “a per se rule against enforcing a forum selection clause as to a DUTPA claim,” id. at 404, the court instead determined that “the binding effect of a venue clause ‘depends on its language.’”  Id. (citing Management Computer, 743 So. 2d at 630-31).  Since the SAI clause contemplated that any action could be brought only in Illinois, the DUTPA claim was deemed to fall within its scope.  Id.; see also American Boxing & Athletic Ass’n v. Young, 911 So. 2d 862, 865 (Fla. 2d DCA 2005) (recognizing distinction between Management Computer and SAI).

            In the present matter, the forum selection clause at issue provides that “all matters and disputes whatsoever arising under, in connection with or incident to this contract shall be litigated” only in Miami.  At the very least, the DUTPA claim is “incident to” the parties’ contract because it arises from Royal Caribbean’s alleged failure to refund monies paid by Plaintiffs pursuant to the contract. 

            Therefore, the Court finds that the present clause requires that the DUTPA claim be litigated in a court in Miami.  By covering all claims in connection with or incident to the parties’ contract, the present clause is far more analogous to the sweeping clause in SAI than it is to the clause in Management Computer, which was limited to claims arising from the contract.[2]

            Plaintiffs’ second argument is that, notwithstanding the general enforceability of forum selection clauses, the present clause should not be enforced because the facts present a “most exceptional case” justifying departure from the clause.  See Norwegian Cruise Line, Ltd. v. Clark, 841 So. 2d 547, 549-50 (Fla. 2d DCA 2003) (citing Stewart Org., Inc v. Ricoh Corp., 487 U.S. 22, 33 (1988)) (forum selection clauses in maritime contracts, including passenger tickets for cruises, should be given “controlling weight in all but the most exceptional cases”).   However, nearly all the factors Plaintiffs cite relate to their allegedly unfair treatment by Royal Caribbean at the time of the cruise rather than the unfairness of compelling them to litigate in Miami.   The only factors relating to the forum are that Royal Caribbean is “taking advantage of an unfortunate situation” and that Plaintiffs will be forced to pay court costs twice.

            These allegations fall far short of satisfying Plaintiffs’ “‘heavy burden’ of demonstrating why enforcement is unreasonable.’” Clark, 841 So. 2d at 550 (quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17 (1972)).  Even if the Plaintiffs had cited inconvenience and a disparity of bargaining power, these would not provide a proper rationale for setting aside the clause.  See American Boxing, 911 So. 2d at 864 (finding that trial judge erred in denying motion to transfer venue on basis of inconvenience and disparity). 

            The forum selection clause in the parties’ contract is enforceable against Plaintiffs’ claims.  Its terms encompass the DUTPA cause of action, and Plaintiffs have failed to establish that this matter is so exceptional that the clause should be set aside.

            Therefore, it is

            ORDERED AND ADJUDGED that the Order for Change of Venue entered June 21, 2005, is AFFIRMED, and that this cause is remanded to the trial court for action consistent with this Order and Opinion.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of _____________, 2006.



                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division




___________________________                             ______________________________

LAUREN C. LAUGHLIN                                        JAMES R. CASE

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division


Copies to:

Judge Dorothy Vaccaro

Wayne K. Ekren, Esq.

9330 Regency Park Blvd.

Port Richey, FL  34668


Scott D. Ponce

Holland & Knight LLP

Suite 3000

701 Bricknell Ave.

Miami, FL  33131


[1] Non-final orders concerning venue are appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A).

[2] Subsequent to SAI, the First District again found a DUTPA claim outside the scope of a forum selection clause in America Online, Inc. v. Pasieka, 870 So. 2d 170 (Fla. 1st DCA 2004).  However, the Court does not find this decision controlling because it involved a class action and enforcing the clause would have required the parties to litigate in Virginia, where the action and remedy would not be similar.  Id. at 171-72.  Again, the forum clause at issue here does not take this case outside of Florida.