Comma Mischief from the Florida District Court of Appeal

The academy argued that the venue provision was permissive rather than mandatory, and that the action should remain in Martin County.

The trial court granted Optima’s motion and dismissed the complaint without prejudice, finding “that the Parties’ written agreement is clear, unambiguous, and contains an exclusive venue provision that requires all disputes be filed in Collier County, Florida.”

The academy appealed. The appellate court held that “a comma is the decisive factor in construing the clear and unambiguous language of the parties’ agreement.” It reversed and remanded for further proceedings.

In so deciding, the appellate court cited another Florida District Court of Appeal decision, Regal Kitchens, Inc. v. O’Connor & Taylor Condominium Construction, Inc., 894 So. 2d 288 (Fla. Dist. Ct. App. 2005). Here’s the provision at issue in that case: “Any litigation concerning this contract shall be governed by the law of the State of Florida, with proper venue in Palm Beach County.” The court in Regal Kitchens held that provision to be permissive, as it “lacks mandatory language or words of exclusivity to show that venue is proper only in Palm Beach County.”

The Treasure Coast court also cited another Florida District Court of Appeal decision, Global Commercial Roofing, LLC v. iCrete, LLC, 410 So. 3d 735 (Fla. Dist. Ct. App. 2025), which concerns a provision similar to the one in Regal Kitchens, except that it lacks a comma before the venue language: “The Subcontractor acknowledges and agrees that any controversy or claim arising out of or relating to this Contract, or the breach thereof, shall be settled under the laws of the State of Florida with venue in Lee County, FL.”

The court in Global Commercial Roofing noted that the provision in Regal Kitchens applied only to the choice of Florida law because the choice of venue was “set off by a comma and cannot be modified grammatically by the language ‘shall be governed by.'” Given the lack of a comma in the provision at issue in Global Commercial Roofing, the court held that it was mandatory, making Lee County the exclusive venue for any litigation arising from that contract.

Because the provision at issue in Treasure Coast includes a comma before the venue provision, the appellate court said that “the importance of the comma in the clause here cannot be understated.” It held that “‘shall’ applies only to the choice of Florida law rather than to venue selection.”

Deficient Drafting

To understand the implications of the sentence at issue in Treasure Coast, one must consider it in its entirety. So let’s start with the first part, up to the comma: “The rights of all parties hereto shall be subject to the jurisdiction of and be construed according to the laws of the State of Florida … .”

The first part combines two provisions—one to the effect that Florida courts have personal jurisdiction, the other specifying that Florida law is the governing law of the contract. Both are awkwardly drafted. For one thing, the jurisdiction provision contains an ambiguity, albeit one with modest implications. (See this blog post.)

For our purposes, all that matters is that whatever the drafting shortcomings, neither the jurisdiction provision nor the governing law provision has anything to do with venue. Venue is a distinct concept, in that it’s a function of which court, among courts that have jurisdiction, is the appropriate place for a proceeding to be heard.

Deficient Textual Interpretation

So the only part of the sentence at issue in Treasure Court that relates to which court is the appropriate place for a proceeding to be heard is the second part: “with venue in Collier County, Florida.”

In grammatical terms, the second part is a kind of “absolute construction.” See Bryan A. Garner, Garner’s Modern English Usage 10 (5th ed. 2022) (GMEU). Broadly speaking, an absolute construction is a modifier that combines a noun (or pronoun) and a participle (a verb ending in –ing or –ed). It modifies the rest of the sentence, not just part of it. Absolute constructions add incidental matter to the sentence. In the sentence I started hiking up the mountain, the sleet stinging my face, the absolute construction is the sleet stinging my face.

More specifically, the second part of the provision at issue is what the linguistics literature calls a “with-augmented absolute.” Many writers insert the preposition with at the beginning of an absolute construction. See GMEU, at 10. Also, the participle being is elided in the second part.

The appellate court said the comma at the end of the first part was “the decisive factor” in establishing that venue was permissive rather than mandatory, because the comma meant the mandatory effect of shall didn’t apply to the venue selection.

But there’s no basis in grammar for attributing that function to a comma. Instead, it’s standard to use a comma to separate an absolute construction from the rest of the sentence. See GMEU, at 898. It would be unreasonable to expect all contract drafters to always be consistent in using a comma in this context. Because presence of a comma has nothing to do with whether venue is mandatory, there’s no basis for suggesting that absence of a comma has anything to do with it either. But the judge in Global Commercial Roofing, LLC saw fit to say it does, citing no evidence. And the judge in Treasure Coast saw fit to rely on Global Commercial Roofing, LLC.

The court in Treasure Coast seems to have come to the right decision, but the justification it offers is nonsense. Florida courts have held that if a venue provision lacks mandatory or exclusive language, it should be considered permissive. See Regal Kitchens, Inc., 894 So. 2d at 291. So the court in Treasure Coast could have simply held that because there’s nothing in the second part of the provision—the only part dealing with venue—to suggest that venue is mandatory, it’s permissive.

The Upshot

What explains the failed textual interpretation on display in Treasure Coast? Evidently, the court was uninformed. In particular, it might have succumbed to a legalistic urge to make mischief with commas. That urge is at large in the legal profession. For example, I’ve done battle with the notion that if in a sentence a series of nouns, noun phrases, or clauses is followed by a modifier and the modifier is preceded by a comma, the modifier applies to the entire series, not just the final element in the series. That’s nonsense too. See my 2015 article.

Why was the court uninformed? It’s the result of our expecting judges to be equipped to interpret legal text, just by virtue of being judges. The prevailing view is that no expert testimony is admissible for purposes of determining whether contract language is ambiguous. See this 2009 blog post.

But in my years of dipping into caselaw, what I’ve found suggests that many judges aren’t up to the task. See this 2020 blog post. It’s unrealistic to expect they would be.

What’s the fix for defective textual analysis? For one thing, courts could admit expert witness testimony on ambiguity. But the same effect could be achieved if law firms were to retain to advise them, behind the scenes, experts who have demonstrated semantic acuity and familiarity with relevant principles of linguistics.

A broader fix would be to offer in-person and online training to judges and their clerks, perhaps from a center based at a law school. That center could also submit amicus briefs in cases where the public interest is at stake.

Nothing gets better unless we work to make it better.