A Copy-and-Paste Train Wreck

A tidbit to come out this week’s panel discussion at Notre Dame Law School (see this post) was, courtesy of Glenn West, a citation to a poignant Florida case, Espresso Disposition Corp. 1 v. Santana Sales & Mktg. Grp., Inc., 105 So. 3d 592 (Fla. Dist. Ct. App. 2013) (PDF here).

Here are the relevant parts:

Espresso Disposition Corporation 1 and Santana and Associates entered into the brokerage agreement in 2002. The agreement provides for a mandatory forum selection clause in paragraph 8. The provision states:

The venue with respect to any action pertaining to this Agreement shall be the State of Illinois. The laws of the State of Illinois shall govern the application and interpretation of this Agreement.

(Emphasis added). However, Appellee filed a lawsuit against Appellants alleging a breach of the agreement in Miami–Dade County, Florida. In fact, Appellee filed four subsequent complaints—an initial complaint, amended complaint, second amended complaint, and third amended complaint—after each and every previous pleading’s dismissal was based upon venue as provided for in the agreement’s mandatory forum selection clause. Appellee’s third amended complaint alleges the forum selection clause was a mistake that was made at the time the agreement was drafted. Additionally, Appellee attached an affidavit which states that, in drafting the agreement, Appellee’s principal copied a form version of an agreement between different parties, and by mistake, forgot to change the venue provision from Illinois to Florida.

Appellee would have us create an exception to our jurisprudence on mandatory forum selection clauses based on their error in cutting and pasting the clause from another agreement. Of course, the origin of “cutting and pasting” comes from the traditional practice of manuscript-editing whereby writers used to cut paragraphs from a page with “editing scissors,” that had blades long enough to cut an 8 ½″—wide page, and then physically pasted them onto another page. Wikipedia, http://en.wikipedia.org/wiki/Cut,_copy,_and_paste (last visited September 17, 2012). Today, the cut, copy, and paste functions contained in word processing software render unnecessary the use of scissors or glue. However, what has not been eliminated is the need to actually read and analyze the text being pasted, especially where it is to have legal significance. Thus, in reviewing the mandatory selection clause which Appellant seeks to enforce, we apply the legal maxim “be careful what you ask for” and enforce the pasted forum.

What is the lesson to learn from this? “Be careful out there,” I suppose. But the world of transactions is such a high-paced, high-stress world that urging people to be careful and expecting that to accomplish much seems like wishful thinking.

If you want to avoid bad stuff happening, you have to put systems in place to stop it. You want to stop copy-and-paste train wrecks? One obvious way to avoid them is by using document assembly. That’s why I’m posting this on Contract-Automation Clearinghouse rather than on Adams on Contract Drafting.


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