Third District Court of Appeal at 2001 SW 117th Ave., in Miami. Photo: J. Albert Diaz/ALM

A ruling by the Third District Court of Appeal has pushed a dispute over $2.7 million in allegedly misplaced funds out of the Miami-Dade Circuit Court and into a venue slightly more southward — Brazil.

In March 2013 Hamed Wardak, an Afghani investor who had previously been the subject of scrutiny for his role in transporting U.S. military vehicles through Afghanistan, opened a multimillion-dollar Miami account with Brazil-based bank and financial services firm Estrategia Investimentos. Wardak filed suit in Florida against the bank and the employee who handled his account, Pablo Antoniazzi, alleging that he could not access his funds.

But Antoniazzi filed a motion to dismiss the breach of contract and fraud complaint against him and his employer, claiming that the contract Wardak signed precluded the possibility of litigation in Miami. He failed on that motion before Miami-Dade Circuit Judge William L. Thomas.

But in an opinion issued Wednesday, the appellate court sided with the defendants, reversing Thomas, and finding the case should be adjudicated in Brazil. It agreed with the defense that the contract’s forum selection clause was “mandatory and unambiguous” — rather than ”permissive” — and that any legal action must take place in Brazil.

Additionally, the appellate court saw fit to crack open a dictionary to answer the question of “whether the phrase ‘branch of the Bank’ is ambiguous or unambiguous” enough to make the case that “Miami-Dade County was a proper forum because the Bank had an ‘office’ in Miami.”

Read the opinion: 

Citing Black’s Law Dictionary, the Third DCA distinguished between a “branch bank” and “branch office” by defining a “branch bank” as “at very least … any place for receiving deposits or paying checks or lending money apart from chartered premises.”

“No evidence was presented that the Miami office was a location at which deposits were received, checks paid, or funds withdrawn,” according to the opinion. “Indeed, the affirmative testimony established that the Miami office did not have an ATM machine or a teller. There was no evidence that appellees ever deposited or withdrew any funds at the Miami office, or that such could be done at the Miami office.”

The appellate court therefore concluded “the Miami office does not fall within the ordinary meaning of the term ‘branch of the Bank.’ ”

Andrés Rivero, counsel for Antoniazzi and partner at Miami firm Rivero Mestre, told the Daily Business Review that “ the court’s reasoning tracked exactly with what we were arguing,” and that he and the firm were “very pleased with the result.”

Rivero Mestre attorney Maria Paula Aguila argued the case before the appellate court.

Wardak’s attorney, Alexis Fields of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, did not respond to requests for comment by press time.

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