Crastvell Trading Ltd. v. Marengere

90 So. 3d 349, 2012 WL 2327749, 2012 Fla. App. LEXIS 9938
CourtDistrict Court of Appeal of Florida
DecidedJune 20, 2012
DocketNo. 4D10-815
StatusPublished
Cited by10 cases

This text of 90 So. 3d 349 (Crastvell Trading Ltd. v. Marengere) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crastvell Trading Ltd. v. Marengere, 90 So. 3d 349, 2012 WL 2327749, 2012 Fla. App. LEXIS 9938 (Fla. Ct. App. 2012).

Opinion

WARNER, J.

Appellant, Crastvell Trading Ltd., timely appeals: 1) an order dismissing its complaint based upon forum selection clauses in loan agreements and a Deed of Guarantee; and 2) the corresponding denial of Crastvéll’s motion for rehearing and for leave to amend its complaint. Because the appellee was not a party to the loan agreement, he could not enforce the forum se[351]*351lection clause in those contracts which specifically precluded non-parties from such relief. As to the Deed of Guarantee, the contract specifically permitted the lender to pursue relief in any jurisdiction. Further, the court erred in denying the motion for rehearing where Crastvell had voluntarily dismissed those causes of action relying on the loan agreement prior to the involuntary dismissal entered by the court, thus eliminating causes of action based upon the mandatory forum selection clause.

Crastvell Trading, Ltd., filed a complaint against three defendants: Bozel S.A., a Luxembourg entity; Bozel, LLC, a Florida limited liability company based in Boca Raton; and Michel Marengére, an individual who allegedly “owns and controls” Bozel S.A. and Bozel, LLC through another entity. Although Crastvell alleged multiple claims, the complaint generally alleged that the defendants fraudulently induced Crastvell to loan several million dollars to Bozel S.A.; that Bozel S.A. failed to repay those loans; and that Bozel, LLC, breached its agreement to guarantee those loans after Marengére fraudulently diverted funds from Bozel, LLC.

Crastvell and another entity loaned Bo-zel S.A. substantial monies so that Bozel S.A. could acquire two companies. According to the complaint, Marengére made fraudulent representations to induce Crastvell to loan in excess of $13.5 million to Bozel S.A. Three separate agreements evidenced the loans.

To guarantee the loans made pursuant to the loan agreements, Bozel S.A. and its subsidiaries, including Bozel, LLC, entered into a Deed of Guarantee and Indemnity. Allegedly, Marengére then diverted millions of dollars of funds from Bozel, LLC’s, bank accounts into other entities in which he had a financial interest, thus converting that money for his own personal benefit. This, in turn, impaired the value of Crastvell’s security interest and prevented Bozel, LLC, from honoring its guarantee to repay the loans. The complaint specifically alleged that Marengére created Bozel S.A. and Bozel, LLC, for the purpose of obtaining the loans and then making the fraudulent transfers for his personal benefit and profit. It also alleged that Bozel S.A. and Bozel, LLC, were the alter egos of Maren-gére.

After Crastvell stopped receiving payments due on the loans, it filed this lawsuit in Palm Beach County, Florida. Crastvell brought claims against all three defendants for fraudulent inducement, constructive fraud, and conversion. In addition, Crastvell raised a claim of civil theft against Marengére and Bozel, LLC. Crast-vell also sued Bozel S.A. for breach of the loan agreements. Finally, Crastvell sued Bozel S.A. and Bozel, LLC, for breaching the Deed of Guarantee, which had guaranteed the loans. Crastvell served its complaint upon Bozel, LLC, and Marengére, but did not serve Bozel S.A. in this case. During the pendency of the instant lawsuit in Florida, Crastvell concurrently sued Bo-zel S.A. in England for defaulting on the loan agreements.

After Crastvell filed the complaint, Mar-engére filed a verified motion to dismiss, raising a litany of grounds in support.1 Relevant to this appeal, Marengére argued that venue was improper in Florida because the forum selection clauses in the loan agreements provided that “exclusive [352]*352jurisdiction” of any dispute rested with the courts of England.

Each of the loan agreements contained the following clause pertaining to choice of law and forum selection: “This Agreement is governed by and is to be construed in accordance with English law and the courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement).” The loan agreements, however, provided that “[a] person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this shall not affect any right or remedy of a third party which exists or is available apart from the Act.” In addition, paragraph 6.3 of the amended version of the first Mezzanine Loan Agreement stated the following:

None of the terms of this Deed are enforceable by any person and no person shall enjoy the benefit of any term of this Deed other than:
6.3.1 the named parties to it; and
6.3.2 any person to whom the Secured Parties have assigned their rights or any part of their rights in accordance with the terms of this Deed.

Marengére was not a party to any of the agreements, nor did Bozel S.A. assign any rights in accordance with the loan agreement.

The Deed of Guarantee also contained a forum selection clause, which provided as follows:

21.1.1 This Deed is governed by, and shall be construed in accordance with, English law.
21.1.2 The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement) (a “Dispute”).
21.1.3 The parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary.
21.1.4 This Clause 21.1.4 is for the benefit of the Lenders only. As a result, no Lender shall be prevented from taking proceedings relating to a Dispute in any other courts -with jurisdiction. To the extent allowed by law, the Lenders may take concurrent proceedings in any number of jurisdictions.

Marengére was not personally a party to the Deed of Guarantee.2

At a hearing on the motion to dismiss, the court stated that it would “grant the motion to dismiss based upon the clear contractual terms of the exclusive jurisdiction. All this reads relating to this loan transaction is in England.” A few days after the hearing and prior to entry of the final order, the court presiding over Crast-vell’s case in England entered judgment in favor of Crastvell. The English court ruled that Bozel S.A. was in default under the loan agreements and owed Crastvell in excess of $14.5 million, plus interest and costs. Crastvell filed a notice of voluntary [353]*353dismissal without prejudice of its claims against Bozel S.A. in the instant case. That same day, the trial court entered a final order of dismissal, finding that “the plaintiff is bound by the mandatory venue provisions of its contracts in issue” and that “[t]he plaintiffs claims, if they may be brought at all, must be litigated in England and not in the [Sjtate of Florida.”

Crastvell filed a motion for rehearing, arguing that, because of its voluntary dismissal as to Bozel S.A., the trial court’s reliance on the venue provision of the loan agreement was inapplicable, because now the loan agreement was not part of the case.

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Cite This Page — Counsel Stack

Bluebook (online)
90 So. 3d 349, 2012 WL 2327749, 2012 Fla. App. LEXIS 9938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crastvell-trading-ltd-v-marengere-fladistctapp-2012.