Parks Automotive Notes 101108

Parks Automotive Notes 101108 Tandy Computer Leasing v. Terina's Pizza. 784 P.2d 7 (1989). Good decision-- Nevada – invalidates fsc – Def. Is treated like a consumer but is in fact a small corp. (pizza chain), so it's “commercial.” Like our case, the fcs does specify a forum and venue—ft. Worth. “The clause is in very small print, on the back of the one page lease agreement, in the second sentence of the last paragraph. The paragraph is labelled "MISCELLANEOUS." Neither Tandy's agent nor respondents knew the clause existed. Consequently, the forum selection clause was not negotiated between the parties. All of the bargaining, the signing of the lease agreement, and delivery of the equipment took place in Nevada. “ (7). “While some forum selection clauses are sufficient to subject parties to the personal jurisdiction of out-of-state courts, not all forum selection clauses are enforceable. "Where such forum selection provisions have been obtained through `freely negotiated' agreements and are not `unreasonable and unjust,' their enforcement does not offend Due Process." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, n.14 (1985). (Citation omitted.) Here, there were no negotiations over this forum selection clause. As noted, neither appellant's agent nor respondents knew the clause existed. Thus, the clause was not "a vital part of the agreement." where "the consequences of the forum clause [figured] prominently in their calculations." The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13, 15 (1972). In The Bremen, the forum selection clause "preceded the date and signature" and "could hardly be ignored." Id. at 12-13, n.14. This clause was buried on the very bottom of the back page of the lease agreement, in very fine print, in a paragraph labelled MISCELLANEOUS” (8). “The signatures are on the front page of the agreement. Nothing on the front page notifies the reader of the specific forum selection clause on the back page. The clause is not even in bold print. It is unrealistic for a consumer to expect to defend himself in Texas under these facts.” (8). “Here, the forum selection clause is part of a freely negotiated contract between plaintiff and defendant, appearing in the text under a provision entitled "Application of Nevada Law," and preceding the signatures of the parties. Further, application of the clause would not be unreasonable and unjust, as defendant's business concerns are located in Nevada, and plaintiff has previously visited Nevada to engage in initial negotiations for the contract agreement. “ TODD CRISPELL, Plaintiff v. NEXT DIMENSION PRODUCTIONS, LLC, LEONARD PURCELL and PATRICIA PURCELL, Defendants NO. COA04-1015 (N.C. 2005. Upholding Nevada fsc, specifically noting the above characteristics).

“....to consider and determine whether the subject forum-selection provision was obtained through a freely negotiated agreement and is not unreasonable and unjust.” Tandy v. Milam, 555 N.E.2d 174, 176 (Indiana Ct. Apps. 1990).

Information Leasing Corp. v. Jaskot . 151 Ohio App. 3Rd 546: Jaskot signed the ILC contract on behalf of his business and as a guarantor. Directly above the "authorized signature" line in the ILC agreement, in capital letters, was a consent-to-jurisdiction, or forum-selection, clause. The clause read, "YOU AGREE THAT THIS AGREEMENT SHALL BE CONSTRUED AND GOVERNED ACCORDING TO THE LAWS OF THE STATE OF OHIO, AND YOU CONSENT TO THE JURISDICTION AND VENUE OF ANY COURT LOCATED IN THE STATE OF OHIO. YOU AND WE EXPRESSLEY [sic] WAIVE ANY RIGHT TO TRAIL [sic] BY JURY." {¶4} After the signature block was a personal guaranty statement that read, "I/WE CONSENT TO THE PERSONAL JURISDICTION AND VENUE OF ANY COURT LOCATED IN THE STATE OF OHIO. I/WE EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY. THIS GUARANTY SHALL BE CONSTRUED AND GOVERNED ACCORDING TO THE LAWS OF THE STATE OF OHIO." Jaskot signed after both statements. The substance of Jaskot's argument is that he is not a sophisticated businessman and did not understand certain terms of the agreement such as "venue," "jurisdiction," and "personal guaranty." Because of the gross disparity between his sophistication and that of ILC, Jaskot contends, and the trial court agreed, that the selection of Ohio as the forum for resolution of contract disputes was a product of overreaching. Thus, they declare that the forum-selection Page 552

clause is invalid, and it would be unconscionable to hold Jaskot to the terms of the contract and to litigate the dispute in Ohio. {¶17} Jaskot's argument fails because the lack of sophistication of one commercial party to the agreement is not a sufficient basis to invalidate a forum selection clause in a commercial contract. See Nicholson v. Log Sys., Inc., 127 Ohio App.3d at 601, 713 N.E.2d 510; see, also, Discount Bridal Serv., Inc. v. Kovacs (1998), 127 Ohio App.3d 373, 377, 713 N.E.2d 30; Bernath v. Potato Serv. of Michigan (Sept. 30, 2002), N.D. Ohio No. 3:02CV7105, 2002 WL 31233240. Thus Jaskot's inexperience and ILC's prowess notwithstanding, Jaskot's lack of knowledge of legal terms and his unfamiliarity with ATM lease agreements cannot invalidate the forum-selection clause. See, also, Haller v. Borror Corp. (1990), 50 Ohio St.3d 10, 14, 552 N.E.2d 207.