VOLUME XVIII, NUMBER 1
January, 2006

FROM THE CORNER OFFICE  

For your reference, we have provided you with an article index for the year 2005. If you have questions regarding any article or are interested in a specific article, please call any one of our attorneys. You may also visit our internet home page www.powersmcnalis.com . On behalf of our entire staff at Powers, McNalis, Torres & Teebagy , we thank you for allowing us to serve your legal needs for the year 2005.

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FLORIDA SUPREME COURT UPHOLDS PARENT'S CONTRACT REQUIRING ARBITRATION TO RESOLVE A MINOR'S WRONGFUL DEATH CLAIM

The Florida Supreme Court has released its opinion in a much anticipated case involving the issue of whether a release of liability signed by the parent on behalf of a minor child's is enforceable. Minor Mark Shea traveled to Africa with his mother to participate in a safari. Before the trip, Mark's mother signed the safari contract on behalf of both herself and Mark. The contract, with Global Travel Marketing (Global), included a release of liability and a requirement that any controversy or claim arising out of the safari would be decided by arbitration.

Unfortunately, during the trip, Mark was killed by a hyena. Mark's father (the parents were divorced) sued Global for the death of his son. Global sought to enforce both the release of liability and the arbitration provisions in the contract. Mark's father argued that the release and the arbitration agreement were unenforceable as a matter of public policy, because a parent could not legally waive her minor child's right to have legal claims decided by a jury.

In a long and thoughtful decision, the Florida Supreme Court upheld the arbitration provision. Global Travel Marketing, Inc. v. Mark R. Shea , 30 FLW S511 ( Fla. July 7, 2005). In doing so, the court rejected the argument that public policy foreclosed a parent from deciding the forum (i.e. court v. arbitration) of a child's potential future claims. In doing so, the court quoted with approval from an Ohio decision, which stated: "[W]e note that the parent's consent and release to arbitration only specified the forum for resolution of the child's claim; it does not extinguish the claim. Logically, if a parent has the authority to bring and conduct a lawsuit on behalf of the child, he or she has the same authority to choose arbitration as the litigation forum." Cross v. Carnes , 724 N.E.2d 828 (Ohio Ct. App. 1998).

Despite its decision to uphold the arbitration provision, the Supreme Court declined to address the issue of whether the release of liability was enforceable. While the Supreme Court went out of its way to emphasize that it was not deciding that issue, it hinted that a parent's waiver of a child's potential future claim would not be legal. That issue will most likely be decided in a future decision, and we will keep you informed accordingly.

Mark A. Greenberg

IMPROPER VENUE WAIVED IF NOT RAISED EARLY

TAKE NOTICE, improper venue will be waived as an affirmative defense when it is not plead specifically and with particularity. In the matter of Three Seas Corporation v. FFE Transportation Services, Inc. , 30 FLW D2351 (October 2005), the Third District Court of Appeal reversed a trial court decision granting a motion to dismiss for improper venue because the defendant failed to sufficiently plead the defense in its initial answer to the complaint.

Three Seas Corporation sued FFE Transportation Services, Inc., for breach of contract on a 1995 written contract between the parties. The initial complaint alleged that venue was proper in Miami-Dade County , Florida . In its answer to the complaint, the defendant made a general denial of the allegations concerning venue but no specific or particular explanation for the denial. Later, new counsel entered the case for the plaintiff and filed an amended complaint attaching a series of one-year identical contracts to the complaint beginning in 1995 and extending through 1998. The amended complaint reiterated the same breaches of contract. The defendant moved to dismiss the amended complaint for improper venue this time arguing that each of the written contracts contained a forum selection clause providing for any lawsuit arising out of the contracts to be filed in Dallas County , Texas .

Florida Rule of Civil Procedure 1.140(b) requires that the defense of improper venue be stated with particularity in any responsive pleading or motion. The rule goes on to state that every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading , if one is required. A motion making such a defense shall be made before pleading if a further pleading is permitted.

Three Seas Corporation argued that since improper venue appeared on the face of the plaintiff's initial complaint, the defendant's general denial of same in its answer sufficiently met the requirements of Rule 1.140(b). However, the Third District Court of Appeal disagreed stating that the defendant's initial answer contained no express specific or particular reference to improper venue . Three Seas alternatively argued that even if the defendant had not specifically raised the defense of improper venue in its answer to the plaintiff's initial complaint, the defense was specifically asserted with respect to the plaintiff's amended complaint. Regardless, however, the Third District held the filing of amended pleadings does not revive a waived venue argument.

Tana R. Sachs Copple