Parks Automotive 101008

PARKS AUTOMOTIVE

10/10/8 RJW

The Ohio law regarding forum selection clauses, the issue here, is that in the absence of fraud or other irregularity, they will be upheld, following Bremen v. Zapata Offshore Co., 407 U.S. 1 (1972). It is also virtually certain that if Parks were to litigate in South Carolina the issue of Ohio's jurisdiction by virtue of the forum selection clause in its contract with Reyna Capital/Reynolds & Reynolds (?), the court here would uphold the Ohio jurisdictional claim. In Minorplanet Systems v. American Aire, 628 SE2d 43, 368 SC 146 (2006), the South Carolina defendant sought to dismiss a Texas default judgment filed in South Carolina on the ground that the forum selection clause was insufficient to confer jurisdiction on it. The SC Supreme Court, examining Texas law, said: “Texas courts have recognized that the "enforcement of forum-selection clauses is mandatory unless the party opposing enforcement clearly shows that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching." In re Automated Collection Technologies, Inc., 156 S.W.3d 557, 559 (Tex.2004); see also In re AIU Ins. Co., 148 S.W.3d 109, 112 (Tex.2004).(fn1) Further, under Texas law, a defendant waives any objection to lack of personal jurisdiction by agreeing to a clause naming Texas as the forum. AIU Insurance, 148 S.W.3d at 112. The party opposing enforcement of the forumselection clause carries a heavy burden of showing the forum-selection clause should not be enforced. A forum selection clause will be invalidated only (1) if it was the product of fraud or overreaching, (2) if the agreed forum is so inconvenient as to deprive the litigant of his day in court, or (3) if enforcement would contravene a strong public policy of the forum in which the suit is brought. Tri-State Building Specialties, Inc. v. NCI Building Systems, 184 S.W.3d 242, 2005 WL 2470528 (Tex.App.2005). “ Ohio law with respect to forum selection clauses does not differ in any significant respect from Texas law. “[T]he requirement that a court have personal jurisdiction over a party is a waivable right and there are a variety of legal arrangements whereby litigants may consent to the personal jurisdiction of a particular court system. Moreover, in the light of present-day commercial realities, it has been stated that a forum selection clause in a commercial contract should control, absent a strong showing that it should be set aside.” Kennecorp Mtge. Brokers v. Country Club Convalescent Hospital, Inc. 66 Ohio St. 3d 173, 175, 610 N.E.2d 987 (1993). The conspicuousness issue that was important in your Kumpf case doesn't have traction here. Employees, like consumers, are treated like children (as a Legal Services lawyer I was very sharp-eyed about contracts—employment and consumer —because they were usually construed against the retailer or the boss.)