            Case: 11-11669   Date Filed: 12/06/2012   Page: 1 of 8

                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                      __________________________

                             No. 11-11669
                      __________________________

                 D.C. Docket No. 3:09-cv-00516-TJC-JRK

EDWARD R. WEBB,
KENNETH W. LILES, et al.,

                                                          Plaintiffs-Appellants,

                                   versus

GINN FINANCIAL SERVICES,
BAHAMAS SALES ASSOCIATE, LLC,
GINN TITLE SERVICES, LLC, and
EDWARD R. GINN, III.,
                                                         Defendants-Appellees.

                      __________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     __________________________

                             (December 6, 2012)

Before HULL, MARCUS and COX, Circuit Judges.

PER CURIAM:
                Case: 11-11669        Date Filed: 12/06/2012       Page: 2 of 8

       The district court dismissed for improper venue the Plaintiffs-Appellants’

complaint. The court held that the complaint falls within the scope of a forum-

selection clause which specifies that venue is proper only in the Bahamas. The

court then applied the doctrine of equitable estoppel to allow the Defendants (all of

which are nonsignatories to the contract containing the Bahamian forum-selection

clause) to invoke the clause. The Plaintiffs-Appellants appeal the dismissal. We

reverse and remand.

                                 I. Facts and Procedural History 1

       Between the fall of 2006 and the summer of 2007, the Plaintiffs-Appellants

(together, the Buyers) 2 purchased lots in the Ginn Sur Mer subdivision on Grand

Bahama Island in the Bahamas from Ginn-LA West End Limited (Ginn-LA). The

parties entered into a lot purchase contract containing a forum-selection clause and




       1
         The Buyers’ third amended complaint is the relevant pleading; because this appeal is
before us at the motion to dismiss stage, our recitation of the facts comes from the Buyers’ third
amended complaint. Additionally, because we treat a dismissal based on a forum-selection
clause as a question of proper venue under Federal Rule of Civil Procedure 12(b)(3), Lipcon v.
Underwriters at Lloyd’s, London, 148 F.3d 1285, 1290 (11th Cir. 1998), we also look to
evidence outside the pleading, like the lot purchase contract and the mortgage note, Estate of
Myhra v. Royal Caribbean Cruises, Ltd., 695 F.3d 1233, 1239 & n.22 (11th Cir. 2012).
       2
         The Buyers consist of Edward R. Webb, Kenneth W. Liles, Patricia M. Liles, James
Josephson, William J. Andrews, Jr., Mark R. Roodvoets, Jon D. Andrews, Charles B. Lesesne,
Jerry A. Cicolani, Jr., Kris Brenneman, Susan Kherkher, Thomas E. Lammertse, Mary L. Sipski,
Ronald P. Van as trustee of the Ronald P. Van, Jr. Revocable Trust, and Kathy Jo Van, as trustee
of the Kathy Jo Van Revocable Trust.
                                               2
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a choice-of-law clause. The clauses require that all disputes be litigated in the

Bahamas under Bahamian law. Specifically, the forum-selection clause provides:

      [T]he courts of the Commonwealth (“Commonwealth Courts”) will be
      the venue for any dispute, proceeding, suit or legal action concerning
      the interpretation, construction, validity, enforcement, performance of,
      or related in any way to, this Contract or any other agreement or
      instrument executed in connection with this Contract. In the event
      any such suit or legal action is commenced by any party, the other
      parties agree, consent, and submit to the personal jurisdiction of the
      Commonwealth Courts with respect to such suit or legal action. In
      such event, each party waives any and all rights under applicable law
      or in equity to object to jurisdiction or venue of the Commonwealth
      Courts. Such jurisdiction and venue shall be exclusive of any other
      jurisdiction and venue.

(See, e.g., R.3-39 Ex. C ¶ 22.) The choice-of-law clause states, “The local laws of

the Commonwealth, without regard to the Commonwealth’s choice of law rules,

will exclusively govern the interpretation, application, enforcement, performance

of, and any other matter related to, this Contract.” (Id.) Only the individual

Buyers and Ginn-LA signed the lot purchase contract. Each Buyer’s obligation

under the lot purchase contract was not contingent on his or her ability to obtain

financing.

      All of the Buyers except the Vans (Ronald P. Van as trustee of the Ronald P.

Van, Jr. Revocable Trust and Kathy Jo Van, as trustee of the Kathy Jo Van

Revocable Trust) applied for and received mortgage financing from Bahamas Sales



                                         3
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Associate, LLC (Bahamas Sales) to finance their purchase of the lot. 3                    The

mortgage notes also contain a forum-selection clause and a choice-of-law clause.

The clauses require that all disputes to be litigated in Florida under Florida law.

The relevant clauses state:

       This Note and the rights and obligations of Borrower and Lender shall
       be governed by and interpreted in accordance with the law of the State
       of Florida. In any litigation in connection with or to enforce this Note
       or any endorsement or guaranty of this Note or any loan documents,
       obligors, and each of them, irrevocably consent to and confer personal
       jurisdiction on the courts of the State of Florida or the United States
       located within the State of Florida and expressly waive any objections
       as to venue in any such courts.

(R.4-57-1 ¶11, at 4.) Only the Buyers (other than the Vans) and Bahamas Sales are

parties to the mortgage note.

       Apparently, sometime after the Buyers purchased their lots, the real estate

market tanked. And in June 2009, the Buyers (including the Vans) sued Bahamas

Sales, Ginn Financial Services (the parent company of Bahama Sales), William

McCracken (an officer of Ginn Financial Services) 4, Edward R. “Bobby” Ginn, III

(an officer of Bahamas Sales), and Ginn Title Services (together, the Mortgage

Entities) alleging that the defendants engaged in an appraisal fraud scheme to




       3
           Buyers Ronald T. Van and Kathy Jo Van did not obtain financing from Bahamas Sales.
       4
         William McCracken was dismissed with prejudice pursuant to a stipulation of dismissal.
(R.6-89.)
                                            4
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produce fraudulent lot appraisals in violation of the Racketeer Influenced and

Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961–1968 (2006). The Buyers

allege that the Mortgage Entities violated §1962(c) and § 1962(d). The complaint

seeks rescission of the mortgage notes and restitution on payments previously

made on the note.

       The complaint alleges that the Mortgage Entities fraudulently inflated the

appraisal of their Ginn Sur Mer lots and used that inflated appraisal to set the

amount on the mortgage notes.5             Because of the inflated appraisal, the Buyers

closed on mortgage notes for amounts that far exceeded the market value of their

lots. The claims are based on the assumption that if proper appraisals had been

done on each lot and the lots were appraised for amounts lower than their sales

prices, then the Buyers would not have closed the purchase of the lots. Further, if

proper appraisals had been done and the lots appraised for amounts lower than

their sales prices, the Buyers could have simply walked away from the lot purchase

contracts and paid only liquidated damages for their failures to close the purchases.




       5
          The Vans did not obtain mortgage financing for their purchase. Nevertheless, they
allege that the Mortgage Entities participated in this appraisal fraud scheme and that as a result,
they were harmed. (R.5-76 ¶¶ 110, 116, at 52, 53.) We need not address this anomaly because it
does not change our analysis of the issues presented.
                                                 5
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       In response, the Mortgage Entities filed a motion to dismiss asserting that

the lot purchase contract’s forum-selection clause applies and that venue is proper

only in the Bahamas. The district court agreed, holding that the complaint falls

within the scope of the lot purchase contract’s forum-selection clause. It then held

that the Mortgage Entities, though not signatories to the lot purchase contract,

could nevertheless enforce the forum-selection clause under the doctrine of

equitable estoppel. We reverse and remand.

                       II. Contentions of the Parties & Issues on Appeal

       The Buyers make three arguments on appeal: (1) that Bahamas Sales agreed

to venue in Florida under the mortgage note; (2) that the appraisal fraud claims in

the complaint do not fall within the scope of the lot purchase contract’s forum-

selection clause 6; and (3) that the Mortgage Entities, as nonsignatories to the lot

purchase contract, cannot invoke the lot purchase contract’s forum-selection

clause.

       The Mortgage Entities contend that Bahamas Sales is not bound by the

note’s forum-selection clause because the forum-selection clause only applies to


       6
          In their brief, the Buyers simply argue that the complaint does not relate to the lot
purchase contracts and that the district court erred by applying the “related to” analysis. The
district court only applied this “related to” analysis when it concluded that the complaint is
subject to the lot purchase contract’s forum-selection clause. Thus, we understand the Buyers’
argument to be that the lot purchase contract’s forum-selection clause does not cover the
complaint because the complaint does not relate to the lot purchase contract.
                                                6
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“obligors” under the note, which it is not. The Mortgage Entities also argue that

the broad language of the lot purchase contract’s forum-selection clause covers the

complaint because the complaint’s allegations relate to the lot purchase contract.

And finally, the Mortgage Entities contend that the district court correctly applied

the doctrine of equitable estoppel to allow them, as nonsignatories to the lot

purchase contract, to enforce the lot purchase contract’s forum-selection clause.

                                 III. Standard of Review

      The enforceability of a forum-selection clause is a question of law that we

review de novo. Slater v. Energy Servs. Grp. Int’l, Inc., 634 F.3d 1326, 1329–30

(11th Cir. 2011). Further, whether the doctrine of equitable estoppel should apply

is a question of law that we review de novo. MS Dealer Serv. Corp. v. Franklin,

177 F.3d 942, 946 (11th Cir. 1999).

                                      IV. Discussion

      The issues in this case are identical to those presented in our recent decision

in Bahamas Sales Assoc., LLC v. Byers, 11th Cir., ___ F.3d ___ (No. 11-6664,

Dec. 4, 2012). The Buyers’ argument that the mortgage note’s forum-selection

clause binds Bahamas Sales is foreclosed by our decision in Byers. Similarly, the

Mortgage Entities’ argument that the Buyers’ complaint is within the scope of the

lot purchase contract’s forum-selection clause and their argument that the district


                                         7
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court correctly applied the doctrine of equitable estoppel are foreclosed for the

reasons we set forth in Byers.

                                       V. Conclusion7

       For these reasons, we hold that Bahamas Sales is not bound by the mortgage

note’s forum-selection clause. Additionally, we hold that the district court erred

when it determined that the appraisal fraud claims were within the scope of the lot

purchase contract’s forum-selection clause. We also hold that the court erred in

applying equitable estoppel to allow the Mortgage Entities (nonsignatories to the

lot purchase contract) to invoke the lot purchase contract’s Bahamian forum-

selection clause. Accordingly, we reverse the district court’s judgment granting

the motion to dismiss for improper venue and remand for proceedings consistent

with this opinion.

       REVERSED and REMANDED.




       7
          To the extent that the Mortgage Entities argue that the Buyers failed to properly plead
their RICO claims, we decline to address the argument because the district court has not yet
ruled on the Fed. R. Civ. P. 12(b)(6) motion to dismiss. We prefer to leave the issue to the
district court to address in the first instance.
                                                 8
