DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

FAIRBANKS CONTRACTING AND REMODELING, INC.,

Appellant,

v.

ANTHONY R. HOPCROFT and MARY J. HOPCROFT,

Appellees.

No. 4D14-4467

[July 15, 2015]

Appeal of a non-final order from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; John B. Bowman, Judge; L.T. Case No. 

CACE 14-005192 (02).

R. Colt Kirkland of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, 

for appellant.

Robert J. Puzio of The Litigation Defense Group, LLC, Fort Lauderdale, 

for appellees.

PER CURIAM.

Appellant Fairbanks Contracting and Remodeling, Inc., the defendant 

below, appeals a non-final order denying its motion to dismiss or transfer 

for improper venue. Appellant seeks to enforce a forum selection clause 

in a contract with the Appellees (plaintiffs below), Anthony and Mary 

Hopcroft. We agree that the clause is enforceable. Although Appellees’

complaint raises only a statutory claim of a violation of the Florida 

Deceptive and Unfair Trade Practices Act (FDUTPA), the claim has a 

significant relationship and clear nexus with the contract entered into 

between these parties. Accordingly, we reverse and remand for transfer of 

the action.

The parties entered into a contract for installation of a walk-in tub and 

the necessary bathroom modifications. The elderly Appellees contend that 

they were led to believe that this tub would meet their needs, but the tub 

was not suitable for various reasons, including a one foot high step up to 

get into the tub and a leak caused by defective installation of the tub door. 

Although the contract contains an express one-year warranty that labor 
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and materials would be free from “substantial defects,” the Appellees have 

not alleged breach of contract or any warranty. Instead, their complaint -

which catalogues a number of wrongful actions - alleges generally that, 

through its conduct, Appellant engaged in unfair and deceptive trade 

practices. 

We agree with Appellant that a clear nexus exists between the FDUTPA 

claim and the contract in this case. Farmers Grp., Inc. v. Madio & Co., 869 

So. 2d 581, 582 (Fla. 4th DCA 2004) (holding that a valid forum selection

clause applied to tort and FDUTPA claims where there was a “significant 

and obvious nexus between the claim and the Agreement”). Several 

allegations in the complaint correspond directly to express contractual 

provisions. For example, the alleged defect in the labor or materials that 

caused the tub to leak would appear covered by the express warranty, and 

the allegation that the company failed to obtain necessary permits would 

also be a violation of an express term of the contract. Moreover, the 

complaint expressly references the contract, including an allegation that, 

“by virtue of the agreement,” Appellant had misrepresented what was 

necessary to install the tub. (Emphasis added.)

Although cases such as Management Computer Controls, Inc. v. Charles 

Perry Construction, Inc., 743 So. 2d 627 (Fla. 1st DCA 1999), and First 

Pacific Corp. v. Sociedade de Empreendimentos e Construcoes, Ltd., 566 So. 

2d 3 (Fla. 3d DCA 1990), concluded that the FDUTPA claims at issue were 

not subject to a forum selection clause, we agree that there is no per se 

rule. SAI Ins. Agency, Inc. v. Applied Sys. Inc., 858 So. 2d 401 (Fla. 1st 

DCA 2003). Whether a forum selection provision in a contract applies to 

an FDUTPA claim depends on the circumstances, including the language 

employed in the clause. Id. at 404. 

By its terms, the forum selection clause in the present case 

unambiguously applies to “any proceeding relating to” the contract. 

(Emphasis added.) See Jackson v. Shakespeare Found., Inc., 108 So. 3d 

587, 593 (Fla. 2013) (explaining that an arbitration provision that applies 

to any claim “relating to” a contract is broader than a provision that applies 

only to claims “arising out of” a contract); Farmers Grp., 869 So. 2d at 582 

(explaining that the contract provided in unambiguous terms that it 

applied to “any action arising out of, connected with, or to enforce the 

Agreement”). Under the circumstances of this case, the unambiguous 

forum selection provision applies to the claim. 

We disagree with Appellees’ argument that the forum selection clause 

is unenforceable because it was not sufficiently conspicuous. 

“[U]nambiguous mandatory forum selection clauses contained in contract 
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documents are presumptively valid and should be enforced in the absence 

of a showing that enforcement would be unreasonable or unjust.” 

Swarovski N. Am., Ltd. v. House of China, Crystal & Silver, Inc., 848 So. 2d 

452, 453 (Fla. 4th DCA 2003). Appellees did not show that enforcement 

would be unreasonable or unjust.

Accordingly, we reverse and remand with directions that the case be 

transferred to the Circuit Court for Marion County as provided in the 

forum selection clause.

Reversed and remanded.

LEVINE, CONNER and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.