Kerr Const., Inc. v. Peters Contracting, Inc., No. 5D99-3621.

CourtCourt of Appeal of Florida (US)
Writing for the CourtSAWAYA, J.
Citation767 So.2d 610
PartiesKERR CONSTRUCTION, INC., Appellant, v. PETERS CONTRACTING, INC., et al., Appellees.
Docket NumberNo. 5D99-3621.
Decision Date15 September 2000

767 So.2d 610

KERR CONSTRUCTION, INC., Appellant,
v.
PETERS CONTRACTING, INC., et al., Appellees

No. 5D99-3621.

District Court of Appeal of Florida, Fifth District.

September 15, 2000.


767 So.2d 611
Charles F. Johnson, III, of Blalock, Landers, Walters & Vogler, P.A., Bradenton, for Appellant

James F. Butler, III, of Smith, Currie & Hancock LLP, Atlanta, Georgia, for Appellees.

SAWAYA, J.

Kerr Construction, Inc. (Kerr) appeals from a non-final order dismissing its cause of action for breach of contract against Peters Contracting, Inc. (Peters). The trial court found that dismissal was appropriate based on its finding that venue lies with the State of Kentucky.1 We reverse.

Peters contracted with the City of Orlando to perform certain construction services. Employers Insurance of Wausau (Wausau) issued a payment bond for the work to be performed by Peters under the contract. On or about August 25, 1997, Peters entered into a subcontract with Kerr to perform certain portions of the original contract between Peters and the

767 So.2d 612
City of Orlando. The subcontract contained a clause which specifically provided that "[t]his agreement shall be construed in accordance with the laws of the Commonwealth of Kentucky and shall be enforced only in the courts of the Commonwealth of Kentucky."

A dispute arose between Kerr and Peters and, on September 9, 1999, Kerr filed 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. The trial court granted the motion to dismiss finding that the statute was enacted after the cause of action was filed and that it did not apply retroactively to the subcontract.

The first issue we must resolve is whether Florida law applies to determine the validity and enforceability of the forum selection clause. The plurality of cases resolving issues of venue and the validity of forum selection clauses have regarded such issues as procedural and have applied the law of the forum rather than the law selected by the parties. See Fendi S.r.l. v. Condotti Shops, Inc., 754 So.2d 755, 757 (Fla. 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. This statute provides:

Any venue provision in a contract for improvement to real property which requires legal action involving a resident contractor, subcontractor, sub-subcontractor, or materialman, ... to be brought outside this state is void as a matter of public policy. To the extent that the venue provision in the contract is void under this section, any legal action arising out of that contract shall be brought only in this state in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located, unless, after the
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4 practice notes
  • Foster Wheeler Energy Corp. v. LSP EQUIPMENT, LLC., No. 2-03-0963.
    • United States
    • United States Appellate Court of Illinois
    • February 25, 2004
    ...statute did not impact any contractual rights as section 10 would. We also reject Kerr Construction, Inc. v. Peters Contracting, Inc., 767 So.2d 610 (Fla.App. 5th Dist.2000), and Sawicki v. K/S Stavanger Prince, 802 So.2d 598 (La. 2001), relied on by Dick for the proposition that statutes i......
  • Wooley v. Amcare Health Plans of Louisiana, No. 2005 CW 2025.
    • United States
    • Court of Appeal of Louisiana (US)
    • October 25, 2006
    ...Brooks v. Texas Employers Ins. Ass'n, 358 S.W.2d 412, 415 (Tex.App.—Houston 1962); Kerr Constr., Inc. v. Peters Contracting, Inc., 767 So.2d 610, 612 (Fla.App. 5 Dist.2000); 15A C.J.S. Conflict of Laws §§ 96-97, pp. 292-96 The venue herein is proper. We find no error in the trial court's ru......
  • Cashman Equipment Corp. v. Kimmins Contracting Corp., Civil Action No. 03-10463-DPW (D. Mass. 1/5/2004), Civil Action No. 03-10463-DPW.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 5, 2004
    ...to ever construe Section 47.025 held that "the statute is procedural, not substantive." Kerr Constr., Inc. v. Peters Contracting, Inc., 767 So.2d 610, 613 (Fla. Dist. Ct. App. 2000). Kimmins does not cite any cases where a federal court applied a state law concerning the enforceability of f......
  • Foster Wheeler Energy Corporation v. LSP Equipment, No. 2-03-0963 (Ill. App. 3/2/2004), No. 2-03-0963
    • United States
    • United States Appellate Court of Illinois
    • March 2, 2004
    ...statute did not impact any contractual rights as section 10 would. We also reject Kerr Construction, Inc. v. Peters Contracting, Inc., 767 So. 2d 610 (Fla. App. 5th Dist. 2000), and Sawicki v. K/S Stavanger Prince, 802 So. 2d 598 (La. 2001), relied on by Dick for the proposition that statut......
4 cases
  • Foster Wheeler Energy Corp. v. LSP EQUIPMENT, LLC., No. 2-03-0963.
    • United States
    • United States Appellate Court of Illinois
    • February 25, 2004
    ...statute did not impact any contractual rights as section 10 would. We also reject Kerr Construction, Inc. v. Peters Contracting, Inc., 767 So.2d 610 (Fla.App. 5th Dist.2000), and Sawicki v. K/S Stavanger Prince, 802 So.2d 598 (La. 2001), relied on by Dick for the proposition that statutes i......
  • Wooley v. Amcare Health Plans of Louisiana, No. 2005 CW 2025.
    • United States
    • Court of Appeal of Louisiana (US)
    • October 25, 2006
    ...Brooks v. Texas Employers Ins. Ass'n, 358 S.W.2d 412, 415 (Tex.App.—Houston 1962); Kerr Constr., Inc. v. Peters Contracting, Inc., 767 So.2d 610, 612 (Fla.App. 5 Dist.2000); 15A C.J.S. Conflict of Laws §§ 96-97, pp. 292-96 The venue herein is proper. We find no error in the trial court's ru......
  • Cashman Equipment Corp. v. Kimmins Contracting Corp., Civil Action No. 03-10463-DPW (D. Mass. 1/5/2004), Civil Action No. 03-10463-DPW.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 5, 2004
    ...to ever construe Section 47.025 held that "the statute is procedural, not substantive." Kerr Constr., Inc. v. Peters Contracting, Inc., 767 So.2d 610, 613 (Fla. Dist. Ct. App. 2000). Kimmins does not cite any cases where a federal court applied a state law concerning the enforceability of f......
  • Foster Wheeler Energy Corporation v. LSP Equipment, No. 2-03-0963 (Ill. App. 3/2/2004), No. 2-03-0963
    • United States
    • United States Appellate Court of Illinois
    • March 2, 2004
    ...statute did not impact any contractual rights as section 10 would. We also reject Kerr Construction, Inc. v. Peters Contracting, Inc., 767 So. 2d 610 (Fla. App. 5th Dist. 2000), and Sawicki v. K/S Stavanger Prince, 802 So. 2d 598 (La. 2001), relied on by Dick for the proposition that statut......

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