Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT VENUS CONCEPT USA, INC., Appellant, v. THE ANGELIC BODY, LLC d/b/a THE ULTIMATE IMAGE COSMETIC MEDICAL CENTER, and TODD BESNOFF, M.D., Appellees. No. 2D22-1276 May 3, 2023 Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pinellas County; Amy Williams, Judge. Vincent F. Alexander and David L. Luck of Lewis Brisbois Bisgaard & Smith LLP, Fort Lauderdale, for Appellant. Robert L. Rocke, Ian A. Parry, and Jodi L. Corrigan of Rocke, McLean & Sbar, P.A., Tampa, for Appellees. SMITH, Judge. Venus Concept USA, Inc., appeals the trial court's nonfinal order denying its motion to dismiss the multicount complaint brought by The Angelic Body, LLC, d/b/a The Ultimate Image Cosmetic Medical Center (Ultimate Image) and its owner Todd Besnoff, M.D., for improper venue. Venus relies upon the forum selection clause contained in the Sale and Purchase Agreement between Venus and Ultimate Image. Because the forum selection clause was mandatory and because there is a significant relationship and clear nexus between Dr. Besnoff's personal negligence claim and the Agreement, the joinder of his claim cannot override the mandatory forum selection clause between Venus and Ultimate Image. Therefore, the trial court erred in denying the motion to dismiss. We reverse and remand with instructions. 1 In March 2021, Ultimate Image purchased a robotic hair transplant system manufactured and sold by Venus—the iX Artas System with Implantation—for use in its cosmetic medical practice. Dr. Besnoff signed the Agreement, which governed the rights and obligations of the parties as they relate to the Artas System. Paragraph 38 of the Agreement contains a forum selection clause, which provides in relevant part: [Ultimate Image] consents to the jurisdiction of any state or federal court located within Broward County, Florida, and further waives any objection to jurisdiction and venue of any action instituted hereunder, and further agrees not to assert any defense based on lack of jurisdiction or venue, including forum non conveniens. . . . Venue of any action brought to enforce or relating to this Agreement shall be brought exclusively in the state or federal courts in Broward County, Florida. (Emphasis added). 1 Venus also argued in its motion to dismiss that the claims should be dismissed for failure to state a cause of action. Because we hold that the complaint should have been dismissed and transferred to Broward County pursuant to the Agreement's forum selection clause, we do not reach whether the complaint properly states a cause of action. Nor do we address Ultimate Image's request to strike the complaint's request for a jury trial. 2 The Artas System was delivered and installed by Venus at Ultimate Image's office in June of 2021. Per the terms of the Agreement, Venus provided its own technicians to train Ultimate Image employees on the Artas System. This included demonstrating proper machine operation by assisting with scheduled procedures. The Venus technicians assisted with four procedures at Ultimate Image's office in Pinellas County. These procedures were attended by Dr. Besnoff and a Venus representative. After a consultation, each of the patients complained of the location of the recipient sites for the implanted follicles, which were drawn on their scalps using the Artas System. For the first two patients, the follicles were harvested using the Artas System, but the Venus technicians stated that the recipient sites would need to be made, and the follicles would need to be implanted, manually—not by the Artas System. As to the third patient, who also complained about the recipient sites drawn by the Artas System, Dr. Besnoff urged the technicians to use the Artas System to create the recipient sites and implant the harvested follicles into the same. The technicians reluctantly agreed to use the Artas System to create the recipient sites, but they refused to robotically implant the hair follicles with the Artas System. Dr. Besnoff, himself, was the fourth patient.2 It is during this procedure that Dr. Besnoff claims he was 2 While the dissent describes Dr. Besnoff as a "hapless guinea pig," we make no comment as to the veracity of Dr. Besnoff's allegations, but we note that the complaint makes no mention or suggestion that Dr. Besnoff was any sort of guinea pig, much less a "hapless guinea pig." We are guided here not only in the allegations contained in the pleadings but also the attachments to the complaint, which include the purchase agreement that is at the center of allegations contained in the complaint—including Dr. Besnoff's negligence claim. See Baker v. Econ. Rsch. Servs., Inc., 242 So. 3d 450, 455 (Fla. 1st DCA 2018) ("When determining whether an agreement's forum-selection clause applies to non-contractual claims, courts have considered whether there is a 3 permanently injured by the Artas System. The technicians robotically harvested Dr. Besnoff's hair follicles per his demands but again refused to use the Artas System to create the recipient sites or to implant the hair follicles. In his claim for negligence, Dr. Besnoff alleges that the Artas System "transected and permanently damaged a significant percentage (approximately half) of the follicles that were harvested from Dr. Besnoff's scalp." Ultimate Image states that it learned for the first time during these procedures that the Artas System did not perform or produce the results represented by Venus. Specifically, the Artas System could not restore patients' hairlines in the desired areas, robotically create placement sites, or robotically transplant the harvested follicles into the patients' scalps. Thereafter, Ultimate Image attempted to reject the Artas System, claiming it did not perform as represented and warranted by Venus. Venus refused to return any portion of the purchase price to Ultimate Image. As a result, Ultimate Image and Dr. Besnoff filed suit against Venus in Pinellas County. Ultimate Image alleged in the complaint that the Artas System was defective in materials and workmanship, that Venus made material misrepresentations regarding the device's capabilities for the purpose of inducing Ultimate Image to purchase the Artas System, and that Venus breached the implied warranty of fitness where the Artas System was not capable of robotic transplant as was represented by Venus. In that same suit, Dr. Besnoff, individually, 'significant and obvious nexus' between the claims and the agreement." (quoting Farmers Grp., Inc. v. Madio & Co., 869 So. 2d 581, 582 (Fla. 4th DCA 2004))). 4 joined his sole claim of negligence against Venus for the personal injuries he allegedly sustained during his hair restoration procedure. Venus filed a motion to dismiss the complaint grounded on improper venue relying upon the Agreement's forum selection clause. Ultimate Image and Dr. Besnoff filed a combined response to the motion arguing that Dr. Besnoff was not a party to the Agreement and that, therefore, because Dr. Besnoff's claim was properly brought in the county where the cause of action accrued, the choice of venue ultimately rests with the plaintiffs because venue is proper in more than one county pursuant to section 47.011, Florida Statutes (2021), citing Taylor v. Dasilva, 401 So. 2d 1161 (Fla. 3d DCA 1981), and Intercapital Funding Corp. v. Gisclair, 683 So. 2d 530 (Fla. 4th DCA 1996). In its reply, Venus asked the trial court to enforce the forum selection clause against Dr. Besnoff as a nonsignatory due to the close relationship between Dr. Besnoff and Ultimate Image or alternatively where the claims alleged by Dr. Besnoff arise directly out of the Agreement. In the end, the trial court found that Dr. Besnoff was not a party to the Agreement and denied the motion, ruling: Because venue is proper in Pinellas County with respect to Dr. Besnoff's negligence claim (Count IV), the Court finds that venue is proper as to the remaining claims asserted in the Complaint. See [id. at 532] ("Suits involving several causes of action may be brought in any county where any of the causes of action accrued."); Maurice Gelina & Associates, Inc. . . . , 639 So. 2d [at] 1060 . . . ("A lawsuit may be brought in any county where the cause of action accrued and, if several causes of action are involved, in any county where anyone [sic] of the causes of action arose."); Davis v. Dempsey, 343 So. 2d 950, 952 (Fla. 3d DCA 1977) (same). We review the trial court's order de novo. See Am. Boxing & Athletic Ass'n v. Young, 911 So. 2d 862, 864 (Fla. 2d DCA 2005) ("[A]n appellate 5 court reviews the interpretation of a contractual forum selection provision as a matter of law."). "[I]t is the plaintiff's prerogative to select the venue, and the plaintiff's selection will not be disturbed if it is one of the alternatives provided by the statute." Breed Techs., Inc. v. AlliedSignal, Inc., 861 So. 2d 1227, 1230 (Fla. 2d DCA 2003) (first citing Nissan N. Am., Inc. v. Vitale, 802 So. 2d 465, 467 (Fla. 2d DCA 2001); and then citing Premier Cruise Lines, Ltd. v. Gavrilis, 554 So. 2d 659, 660 (Fla. 3d DCA 1990)). Those alternatives are set forth under section 47.011, which provides that "[a]ctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located." Notwithstanding, "[i]t has long been the law of Florida that parties to a contract may agree on venue for actions to enforce the contract." Honea v. Walker Chem. & Exterminating Co., 393 So. 2d 1210, 1210 (Fla. 5th DCA 1981) (first citing Producers Supply, Inc. v. Harz, 6 So. 2d 375, 376 (Fla. 1942); and then citing Felkel v. Abernethy, 150 So. 631, 631 (Fla. 1933)). There are two kinds of forum selection clauses—permissive and mandatory; the use of the word "shall" denotes a mandatory forum selection clause. See S & S Directional Boring & Cable Contractors, Inc. v. Am. Nat'l Bank of Minn., 961 So. 2d 1046, 1047 (Fla. 2d DCA 2007) ("[F]orum selection clauses which state or clearly indicate that any litigation must or shall be initiated in a specified forum are mandatory." (quoting Shoppes Ltd. P'ship v. Conn, 829 So. 2d 356, 358 (Fla. 5th DCA 2002))); Gen. Home Dev. Corp. v. Kwirant, 819 So. 2d 255, 256–57 (Fla. 2d DCA 2002) (holding contract language stating that "[v]enue in any action brought by Purchaser or Builder shall be in East Pasco County, Florida" was a mandatory venue provision); Bombardier Cap., Inc. v. Progressive Mktg. Grp., Inc., 801 So. 2d 131, 134 6 (Fla. 4th DCA 2001) ("Forum selection clauses are presumptively valid and 'should be enforced in the absence of a showing that enforcement would be unreasonable or unjust.' " (quoting Manrique v. Fabbri, 493 So. 2d 437, 440 (Fla. 1986))). And so, just as a plaintiff has the prerogative to choose where to bring an action, a plaintiff can also waive that privilege by contract. See Deeb, Inc. v. Bd. of Pub. Instruction of Columbia Cnty. ex rel. Am. Seating Co., 196 So. 2d 22, 24 (Fla. 2d DCA 1967) (holding the subcontractor waived its right to file suit in Hillsborough County when it entered into a contract agreeing to have all litigation resolved in Pinellas County). We first examine the claims brought by Ultimate Image. As to venue, the complaint alleged that Pinellas County was the proper venue pursuant to sections 47.011 and 47.051 "because one or more of the causes of action alleged herein accrued in Pinellas County, Florida." In support of the tort and contract claims, Ultimate Image attached to the complaint the Agreement, which includes the subject forum selection clause. Absent a showing that application of the forum selection clause is unreasonable or unjust, forum selection clauses should be enforced. Manrique, 493 So. 2d at 439-40 ("[F]orum selection clauses provide a degree of certainty to business contracts by obviating jurisdictional struggles and by allowing parties to tailor the dispute resolution mechanism to their particular situation." (quoting Hauenstein & Bermeister, Inc. v. Met-Fab Indus., Inc., 320 N.W. 2d 886, 889 (Minn. 1982))). Mandatory forum selection clauses provide for a "mandatory and exclusive place for future litigation." See Garcia Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So. 2d 273, 274–75 (Fla. 1987) ("We thus hold that the trial court may properly exercise its discretion by 7 refusing to enforce a choice-of-forum clause found to be permissive and not mandatory."). Ultimate Image has failed to make any showing that enforcement of the mandatory forum selection clause would be unreasonable or unjust, and therefore, the forum selection clause is mandatory as to Ultimate Image. The trial court's reliance on Intercapital in this case is misplaced. In Intercapital, the purchase and sale agreements at issue in the motion for change of venue contained the following clause: "GOVERNING LAW. This Purchase and Sale Agreement has been made and is performable in West Palm Beach, Palm Beach County, Florida, and shall be governed by the Laws of the State of Florida." 683 So. 2d at 532. The court noted that the provision did not include the word "forum" or "venue" and reversed the trial court's order granting the motion holding that the provision was only permissive and did not "serve as a clear waiver of appellants' venue privileges and rights pursuant to chapter 47, Florida Statutes." Id. The instant forum selection clause, unlike the permissive provision in Intercapital, contains the word "venue" and clearly expresses its intent to be mandatory through its use of the words "shall" and "exclusively." See, e.g., Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So. 2d 827, 829 (Fla. 4th DCA 2004) ("[A] forum selection clause is considered mandatory where it requires that a particular forum be the exclusive jurisdiction for litigation concerning the contract." (quoting Garcia Granados Quinones, 509 So. 2d at 274)). Ultimate Image freely contracted away its privilege of venue selection in this case and agreed to venue in Broward County when it entered into the Agreement. Therefore, as to the claims brought by Ultimate Image against Venus, venue was proper in Broward County, which is the exclusive venue pursuant to the 8 mandatory forum selection clause in the Agreement. There being no showing by Ultimate Image that the forum selection clause is unreasonable or unjust, we hold that the trial court erred as a matter of law in overriding the mandatory forum selection clause and, thus, had no discretion to deny the motion to dismiss as to Ultimate Image. See Garcia Granados Quinones, 509 So. 2d at 274–75. Ultimate Image does not seem to take issue with the forum selection clause in the Agreement, nor does it quibble with the mandatory nature of the forum selection clause. Rather, it relies on the negligence claim brought by Dr. Besnoff to do what it cannot do directly—shirk the mandatory forum selection clause between it and Venus. However, courts have "recognize[d] that a plaintiff should not be permitted to thwart a venue provision in a contract by joining a contract claim with a separate cause of action." Miller & Solomon Gen. Contractors, Inc. v. Brennan's Glass Co., 837 So. 2d 1182, 1184 (Fla. 4th DCA 2003) (acknowledging a forum selection clause cannot be thwarted by joining causes of action that would undo the intent of the provision (citing Intercapital, 683 So. 2d at 532)); see also, e.g., Copacabana Recs., Inc. v. WEA Latina, Inc., 791 So. 2d 1179, 1180 (Fla. 3d DCA 2001) (explaining that the plaintiff's joinder of another defendant did not "override the contractual forum selection clause" with the contracting defendant). Having determined that the counts brought by Ultimate Image were improperly brought in Pinellas County, we review the remaining count of negligence by Dr. Besnoff. Venus argues that this claim should also be dismissed because it is closely related to Ultimate Image's claims— 9 despite the fact that Dr. Besnoff, individually, was not a party to the Agreement. We agree. Courts have enforced contract terms against nonsignatories in other contexts, including forum selection clauses. See Tuttle's Design– Build, Inc. v. Fla. Fancy, Inc., 604 So. 2d 873, 873–74 (Fla. 2d DCA 1992) (recognizing that a reasonable forum selection clause would be enforced against a nonsignatory to a payment bond); W. Bay Plaza Condo. Ass'n, Inc. v. Sika Corp., 338 So. 3d 32, 34–35 (Fla. 3d DCA 2022) (recognizing a significant relationship and clear nexus where the nonsignatory condominium association's warranty claims referenced the contract); Antoniazzi v. Wardak, 259 So. 3d 206, 210 n.4 ("[T]his Court has previously held that the mandatory nature of a forum selection clause 'equally applies to the non-signatory defendants due to the fact that the claims arise directly from the agreement, as well as due to the nature of the commercial relationship of the parties as it relates to the agreement itself.' " (quoting Reyes v. Claria Life & Health Ins., Co., 190 So. 3d 154, 159 n.2 (Fla. 3d DCA 2016))); E. Coast Karate Stud., Inc. v. Lifestyle Martial Arts, LLC, 65 So. 3d 1127, 1129 (Fla. 4th DCA 2011) (holding a noncompete agreement applied to nonsignatory spouse of employee and employee's new employer); Deloitte & Touche v. Gencor Indus., Inc., 929 So. 2d 678, 684 (Fla. 5th DCA 2006) (holding the mandatory forum selection clause between subsidiary and accountant applied to nonsignatory parent corporation where claims were derivative of the professional engagement and work was intended for use by parent company). We are, as were our sister courts, guided by the factors outlined in Deloitte & Touche, which consider whether: there is a close relationship between the signatory and nonsignatories; the nonsignatories' interests 10 are derivative of the signatory's interests; and the claims involving the nonsignatories arise directly out of the agreement. 929 So. 2d at 684 (explaining that a nonsignatory will be bound by a contract's forum selection clause "where the interests of a non-party are directly related to or completely derivative of those of the contacting party" (citing Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1299 (11th Cir. 1998))). In reviewing the allegations raised in his negligence claim, Dr. Besnoff realleges and incorporates paragraphs 1 through 53 of the general allegations of the complaint, which include reference to the Agreement attached as Exhibit 1. Those same allegations make up the factual allegations that give rise to the counts brought by Ultimate Image against Venus. Further, we note that the Agreement sets forth a number of provisions regarding the parties' obligations, limitations on recovery, and indemnity for claims brought by third parties against Venus for bodily injury resulting from use of the Artas System. Here, Dr. Besnoff solely owns and operates Ultimate Image. He was technically a patient of Ultimate Image when he was injured by the Artas System during his hair treatment procedure performed at Ultimate Image's office, despite the fact that it was performed by technicians from Venus. Because resolution of Dr. Besnoff's negligence claim will require reference to the Agreement and there is a significant relationship and clear nexus between the negligence claim and the Agreement, the mandatory forum selection clause equally applies to his claim. See W. Bay Plaza, 338 So. 3d at 34; see also World Vacation Travel, S.A, de C.V. v. Brooker, 799 So. 2d 410, 412–13 (Fla. 3d DCA 2001) ("It logically follows that the mandatory nature of the forum selection clause of the [agreement] equally applies to the [nonsignatories] due to the fact that the claims arise directly from the agreement, as well as due to the nature of the 11 commercial relationship of the parties as it relates to the agreement itself."). Therefore, Dr. Besnoff's claim should be dismissed along with Ultimate Image's claims pursuant to the mandatory forum selection clause. Based on the foregoing, we reverse the order denying the motion to dismiss for improper venue and remand for the Pinellas County circuit court to transfer venue of the action to the Broward County circuit court. Reversed and remanded. LaROSE, J., Concurs. ROTHSTEIN-YOUAKIM, J., Concurs in part and dissents in part. ROTHSTEIN-YOUAKIM, Judge, Concurring in part and dissenting in part. I join the majority in holding that Ultimate Image must litigate its claims against Venus in Broward County under the Agreement's forum selection clause. To the extent the majority concludes that that clause also dictates the forum in which Dr. Besnoff must litigate his personal injury claim, however, that is a bridge too far, and I must respectfully dissent. Dr. Besnoff seeks recovery against Venus for permanent damage to his hair follicles and for the "excruciating pain" allegedly caused by Venus's robotic hair transplant device. He alleges a manufacturing or design defect and has accordingly sued Venus for negligence. To prevail on this claim, Dr. Besnoff must establish "(1) a duty or obligation recognized by the law requiring the defendant to protect others from unreasonable risks; (2) a breach of that duty; (3) a reasonably close casual connection between the conduct and the resulting injury; and (4) actual loss or damages." Grieco v. Daiho Sangyo, Inc., 344 So. 3d 11, 22 12 (Fla. 4th DCA 2022) (citing Williams v. Davis, 974 So. 2d 1052, 1056 (Fla. 2007)). By their very nature, Dr. Besnoff's alleged injuries could never be suffered by his company, and as pled, they arise not from a breach of the Agreement but from a breach of duty under the common law. Although the damages limitation and indemnification provisions between Ultimate Image and Venus may be implicated if and when liability is established, the Agreement is not central to any element of Dr. Besnoff's cause of action, unlike in the cases on which the majority relies. See, e.g., Tuttle's Design–Build, Inc. v. Fla. Fancy, Inc., 604 So. 2d 873, 873–74 (Fla. 2d DCA 1992) (holding that where nonsignatory materialman brought action to recover on a payment bond containing a forum selection clause, the materialman was a third-party beneficiary of the bond and was therefore bound by the clause); W. Bay Plaza Condo. Ass'n v. Sika Corp., 338 So. 3d 32, 35 (Fla. 3d DCA 2022) (holding that a nonsignatory condominium association was bound by the forum selection clause in a written warranty because it had brought a breach claim based on that warranty); Deloitte & Touche v. Gencor Indus., Inc., 929 So. 2d 678, 684 (Fla. 5th DCA 2006) (holding that a forum selection clause between subsidiary and accountant applied to nonsignatory parent corporation because its claims of professional negligence and negligent misrepresentation were based on the same work performed by the accountant for the subsidiary). In those cases, but for the document including the forum selection clause, there could be no suit. Here, any person off the street could theoretically have found himself or herself in the exact same position as Dr. Besnoff and raised the exact same claim. While Dr. Besnoff's status as president of Ultimate Image may be factually relevant to how he came to be the hapless guinea 13 pig in this instance, I cannot agree that it is legally relevant. Accordingly, I would permit his negligence claim to proceed in Pinellas County. See Copacabana Recs., Inc. v. WEA Latina, Inc., 791 So. 2d 1179 (Fla. 3d DCA 2001) (affirming dismissal of claims against one party based on forum selection clause, while permitting claim against another party to proceed in original forum). Opinion subject to revision prior to official publication. 14