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.