CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2000 Fla. App. LEXIS 11799, 25 Fla. L. Weekly Fed. D 2223
...d suit in Orange County Circuit Court for breach of the subcontract and for recovery under the payment bond. Peters and Wausau moved to dismiss the complaint for improper venue based on the forum selection clause of the subcontract. Kerr argued that section 47.025, Florida Statutes (1999), which became effective on October 1, 1999, vitiated the venue provisions of the subcontract and, therefore, venue properly lay in Orange County, Florida where the work under the subcontract was performed....
...3d DCA 2000), and cases cited therein. We agree with this approach and hold that the validity and enforceability of the forum selection clause of the subcontract in the instant case must be determined by application of Florida law. The next issue we must resolve is whether section 47.025, Florida Statutes (1999) applies retrospectively to the subcontract entered into between Peters and Kerr....
...of action accrued, or where the property in litigation is located, unless, after the dispute arises, the parties stipulate to another venue. Kerr argues that the forum selection clause is void as a matter of public policy based on the provisions of section 47.025....
...This is especially true when retrospective operation of a law would impair or destroy existing rights." Id. (citing State v. Lavazzoli,
434 So.2d 321, 323 (Fla. 1983)); see also Zack v. State,
753 So.2d 9 (Fla.2000). In applying the above rules of construction to section
47.025, we note that section
47.025 provides that forum selection clauses in contracts for improvements to real property are void if they require that legal action involving a resident contractor or subcontractor be instituted outside Florida....
...change the substantive law, but rather was wholly procedural; in absence of contrary indication by Congress or any procedural prejudice to either party, amendment was applicable to suit instituted before amendment was enacted). Having concluded that section 47.025 is procedural and that procedural statutes apply retroactively, we further conclude that retroactive application of the statute in the instant case is appropriate....
...Based on section
47.011, we find that venue is in Orange County, Florida. Peters incorrectly argues that the choice of law provision is also altered, and therefore, the statute has a substantive effect on its subcontract with Kerr. This is not a valid argument because section
47.025 does not apply to that provision in the subcontract. Therefore, although section
47.025 is procedural and applies retroactively to this case, it only renders void the choice of forum clause....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
...Sachse appeals a
nonfinal order determining that the arbitration clause in the Subcontract is void and
unenforceable because it requires arbitration in Michigan of a contract dispute relating
to the improvement of real property in Florida, in violation of section 47.025, Florida
Statutes (2016). We reverse that order because if the Federal Arbitration Act (FAA)
applies, it preempts section 47.025....
...Sachse failed to
adequately allege facts that evidence interstate commerce. Affirmed Drywall also
argued that under Florida law the venue provision requiring arbitration in Michigan was
void as against public policy and cited, among other things, section 47.025.
At the hearing on the motion, Sachse argued that the Subcontract
provides that the laws of Michigan control the contract, so section 47.025 does not even
apply....
...lorida; thus, Sachse's counsel
argued that the FAA applies. In its motion to compel and on appeal, Sachse cites
federal and Florida law, and neither party mentions what Michigan law provides.
Sachse argued to the trial court that the FAA preempts section 47.025.
-3-
Affirmed Drywall argued that an evidentiary hearing would be necessary to
determine if the contract involved interstate commerce. Affirmed Drywall further argued
that section 47.025 prohibited the enforcement of a provision that requires venue
outside the State of Florida in a contract concerning improvements to real property.
Thus, Affirmed Drywall argued that the arbitration agreement violated public policy, a...
...In its order,
the trial court determined that "the arbitration clause that required arbitration of disputes
arising out of the improvement to real property within the state of Florida to take place in
the state of Michigan" was void and unenforceable, citing to Shotts and section 47.025.
The trial court implicitly rejected Sachse's preemption argument because the order did
not mention the FAA or preemption....
...We discuss later in this opinion the threshold question of interstate
commerce that the trial court did not answer and which must be addressed on remand.
-4-
Sachse also contends that the FAA preempts section 47.025, leaving the arbitration
provision enforceable under the FAA. We now turn to that issue.
The FAA and Preemption
Section 47.025, entitled "Actions against contractors," provides as follows:
Any venue provision in a contract for improvement to real
property which requires legal action involving a resident
contractor, subco...
...at 351).
Sachse relies upon R.A. Bright Construction, Inc. v. Weis Builders, Inc.,
930 N.E.2d 565 (Ill. App. Ct. 2010), and OPE International LP v. Chet Morrison
Contractors, Inc.,
258 F.3d 443 (5th Cir. 2001), to support its argument that the FAA
preempts section
47.025....
...Missouri, this "would 'require a judicial forum for the resolution of claims which the
contracting parties agreed to resolve by arbitration.' " Id. (quoting Southland Corp. v.
Keating,
465 U.S. 1, 10 (1984)).
-9-
Even if section
47.025 "is desirable for unrelated reasons," Florida "cannot
require a procedure that is inconsistent with the FAA." McKenzie, 112 So....
...and that the exception to enforcement of an arbitration provision is "grounds as exist at
law or in equity for the revocation of any contract." (Emphasis added.) Thus, the
language of § 2, along with OPE, R.A. Bright, and LaSalle, support our determination
that the FAA preempts section 47.025.
And not only did the trial court determine that section 47.025 prohibited
arbitration in Michigan, but also the trial court denied the motion to compel arbitration
and ordered Sachse to file its answer in twenty days.2 Thus, it appears that the trial
court prohibited arbitration in both Michigan and Florida....
...Because the trial
court's order requires the parties to litigate the matter, the result is to "require a judicial
forum for the resolution of claims which the contracting parties agreed to resolve by
arbitration." Id. (quoting Southland Corp.,
465 U.S. at 10). Because the FAA preempts
section
47.025 if the FAA is applicable, we reverse the trial court's order that finds the
arbitration provision unenforceable and requires the defendants to answer the
complaint.
2We note that the Subcontract does not contain a s...
... Interstate Commerce
As indicated earlier, the trial court never addressed the threshold question
of whether the Subcontract involves interstate commerce. Because we have
determined that the FAA preempts section 47.025 if the FAA is applicable, the trial court
must determine on remand whether the Subcontract involves interstate commerce.
That question should have been resolved first to determine if the FAA even applies to
the Subcontract, perhaps...
