Second DCA
Venus Concept USA, Inc. v. The Angelic Body, LLC
2nd DCA
5/3/23, Judge Smith
Topics: Forum
Angelic Body, LCC, does business as The Ultimate Image Cosmetic Medical Center, a cosmetic medical practice. Angelic Body is owned by Dr. Todd Besnoff, M.D.
In March 2021, Angelic Body purchased a robotic hair transplant system manufactured and sold by Venus Concept USA, Inc. The hair transplant machine is called the iX Artas System with Implantation. The machine was intended for use as part of the cosmetic medical practice.
Dr. Besnoff signed a Sale and Purchase Agreement between Angelic Body and Venus Concept. Paragraph 38 of the sale and purchase agreement contained a forum selection clause stating that Angelic Body consented to jurisdiction of any state or federal court in Broward County, Florida, waived objection to jurisdiction and venue, agreed not to assert lack of jurisdiction or venue including forum non conveniens, and that venue of any action brought to enforce or relating to the Agreement shall be brought exclusively in state or federal court in Broward County, Florida.
Both Angelic Body and Dr. Besnoff ended up suing Venus Concept for negligence, claiming that the machine did not work and that it caused damage to the scalps of patients and on Dr. Besnoff himself. Venus refused to refund any of the purchase price. Angelic Body and Dr. Besnoff filed the complaint in Pinellas County. They alleged that Venus Concept’s product was defective in materials and workmanship, that the company made material misrepresentations about the device, and that Venus breached an implied warranty of fitness. Dr. Besnoff separately sued for negligence and personal injury for the injuries he allegedly sustained during the botched hair restoration procedure.
Venus moved to dismiss based upon the forum selection clause. The plaintiffs answered that because Dr. Besnoff was not a party to the agreement and he had an independent claim of negligence, the forum selection clause did not apply. The place of the wrong was Pinellas County, and a plaintiff gets to choose the venue. The trial court agreed with the plaintiffs, and Venus appealed.
The DCA noted that review of a forum selection clause is de novo. Section 47.011 normally allows a plaintiff to choose where to file a civil suit in any county where 1) the defendant resides; 2) where the cause of action accrued; or 3) where property involved in the litigation is located. Despite this, parties can contract out of this right by entering into a forum selection agreement and forum selection agreements will be honored by courts unless a party can show that enforcement would be unreasonable or unjust.
The first question was whether the forum selection clause was mandatory or permissive. The DCA held that it was mandatory due to the use of the words “venue,” “shall,” and “exclusively.”
The second question was whether the fact that one party—Dr. Besnoff—was not technically a party to the agreement would allow both plaintiffs to disregard the forum selection clause. He owned the business that entered the contract, but the contract was technically only between the two companies, not any natural person.
The test for whether to apply a forum selection clause where some plaintiffs are bound by it and others are not was whether 1) there is a close relationship between the signatory and non- signatories; 2) the nonsignatory’s interest is derivative of the signatory’s interest; and 3) the claims involving the nonsignatory arises directly out of the agreement. Here, there was a significant relationship between Dr. Besnoff’s personal negligence claim and the Agreement. He is the sole owner and operator of Angelic Body. He was technically a patient himself. Joinder of his claim could not override the mandatory forum selection clause between Venus and Ultimate Image. All claims had to be dismissed for improper venue with instructions to transfer the case to the Broward County circuit court.
JUDGE ROTHSTEIN-YOUAKIM CONCURRED IN PART AND DISSENTED IN PART. She agreed that Angelic Body’s claims had to be dismissed and transferred under the forum selection clause, but she disagreed that Dr. Besnoff’s claim had to suffer the same fate. She noted that he alleged excruciating personal injuries that could not have been suffered by the company and arose from a breach of common law (negligence), not a contract. She states that any person off the street could have found themselves in the same position as the doctor—who was in the role of patient when he was allegedly injured—and his relationship to the company was not legally relevant in her view. She would separate the claims, send the business’s claims to Broward, and keep the doctor’s claims in Pinellas.
https://supremecourt.flcourts.gov/content/download/867820/opinion/221276_DC13_05032023_ 082153_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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