Chase Third Century Leasing Co., Inc. v. Williams

• Decision Date: 14 November 1989
• Docket Number: No. WD,WD
• Citation: 782 S.W.2d 408
• Court: Missouri Court of Appeals
• Parties: 11 UCC Rep.Serv.2d 247 CHASE THIRD CENTURY LEASING CO., INC., Respondent, v. Ronald K. WILLIAMS, d/b/a Speed Parts & Machine, Appellant. 41653.

Page 408

782 S.W.2d 408

11 UCC Rep.Serv.2d 247

CHASE THIRD CENTURY LEASING CO., INC., Respondent, v. Ronald K. WILLIAMS, d/b/a Speed Parts & Machine, Appellant.

No. WD 41653.

Missouri Court of Appeals,

Western District.

Nov. 14, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 2, 1990.

Kenneth D. Kyser, Moberly, for appellant.

Wayne E. Schirmer, Moberly, for respondent.

Before NUGENT, C.J., and KENNEDY and FENNER, JJ.

FENNER, Judge.

Appellant, Ronald K. Williams, d/b/a Speed Parts & Machine, (hereinafter Williams) appeals from a judgment upon a jury verdict against him and favorable to Chase Third Century Leasing Company, Inc., (hereinafter Chase) in this action involving a dispute over a business equipment lease.

Chase is a Delaware Corporation with its principal business offices located in Moberly, Missouri. Williams operates a business located in Jackson, Mississippi.

Chase is in the business of financing business equipment through leases. By telephone solicitation, Chase contacts various sellers of equipment in all fifty states. After the sellers have been contacted by telephone, the sellers then contact Chase for financing when equipment is being sold. Chase sends blank preprinted lease forms to the various sellers through the mail.

In June of 1987, Williams was delivered a Minolta 410Z copy machine by Office Systems, Inc., a supplier with whom Chase does business and which is located in Jackson, Mississippi. Williams sought to lease the copier. Office Systems, Inc. contacted Chase and presented Williams with the lease at the time the copier was delivered. Williams signed the lease on the delivery day and it was returned to a salesman from Office Systems, Inc., who mailed the lease to Chase. The lease was signed by a Chase agent on June 15, 1987.

The lease provided for 36 monthly payments of $130.67 plus sales tax and use tax of $7.84 each month for a total of $138.51. The lease also contained provisions for late charges of 10% of each delinquent payment. On the day that Williams signed the lease he paid a security deposit in an amount equal to twice the amount of the first installment.

By letter dated June 22, 1987, Chase informed Williams that his first lease payment was due on August 1, 1987, and thereafter on the first day of each successive month. The letter also advised Williams that he needed to have insurance on the copier.

Williams proceeded to remit his monthly rental payments to Chase at the business offices in Moberly. Although Williams acknowledged the due date of his payments was the first of each month, the record reveals that none of the payments were received by Chase on the due date. Chronologically, Williams' payments were as follows:

1. Defendant's first rental payment check # 4168 was dated 8/8/87 in the amount of $138.51 and was received at Plaintiff's business office in Moberly, Missouri, on August 12, 1987.

2. Defendant's second rental payment check # 4204, dated 9/4/87 in the amount of $175.00 (representing $138.51 plus $36.76 as to insurance) was received at Plaintiff's business office in Moberly, Missouri, on September 11, 1987.

3. Defendant's third rental payment check # 4244, dated October 9, 1987, in the amount of $138.51 was received at Plaintiff's business offices, Moberly, Missouri, on October 14, 1987, and Plaintiff assessed a late charge of $13.07.

4. Defendant's fourth rental payment check # 4274, dated 11/9/87 in the amount of $138.51 was received at Plaintiff's business offices in Moberly, Missouri, on November 13, 1987, and Plaintiff assessed a late charge.

5. Defendant's fifth rental payment check # 4318, dated 12/10/87 in the amount of $138.51 was received at Plaintiff's business offices in Moberly, Missouri, on December 16, 1987, and Plaintiff assessed a late charge.

During the course of Williams' payments, Chase would send out reminder "invoices" on a thirty day basis to remind Williams of his payment obligations and giving notice of late charge assessments. Williams failed to pay his January, 1988, installment. Apparently, Chase agreed with Williams to waive or "write-off" two of the late charges in an attempt to save the lease. In February, 1988, Williams was telephoned by a Chase employee and was again explained the billing system and was requested to bring his account current. Evidently an agreement was reached whereby Williams would make the January, February and upcoming March payments with Chase agreeing to waive two of the previously assessed late charges. Williams issued a check on February 4, 1988, in the amount $428.00, representing the three payments and a late charge of $13.60, which was received by Chase on February 9, 1988.

In April, 1988, Williams returned the copier to Office Systems, Inc., without notifying Chase and made no further payments. A formal "Notice of Default", dated May 18, 1988, was sent by Chase and received by Williams on May 23, 1988. The notice advised Williams as to the accelerated balance due on the lease and demanded payment of $4,284.94. Williams took no action following receipt of the notice.

Chase took possession of the copier and on May 25, 1988, sent Williams a formal "Notice of Repossession and Intent to Either Sell or Dispose of Equipment" which Williams received on May 27, 1988. This notice informed Williams that he had fifteen days to pay the amount due or the equipment would be sold. Williams took no action within the fifteen day period.

Pursuant to the policy and procedure of Chase, notice was sent to companies in the business of selling office equipment advising them as to the availability of repossessed equipment in Chase's possession and seeking bids thereon. Four bids were received on the Minolta 410Z copier, the highest being $750.00, from Superior Business Machines. Chase agreed to sell the copier to Superior. On June 24, 1988, Chase sent a Western Union mailgram to Williams advising him that a buyer had been located and that a private sale of the copier would take place on June 29, 1988, for the sum of $750.00. On June 27, 1988, Williams sent a letter to Chase, a portion of which was admitted into evidence. The portion offered but refused as evidence, and which is the subject of Williams' Point II, offered to purchase the copier for $2,570.63. This letter was received by Chase on June 29, 1988.

Chase did not respond to Williams' June 27 letter and sold the copier on June 29, 1988, for $750.00. Chase filed suit to recover the balance of the lease payments owing, minus the net proceeds received from the resale of the copier, along with costs and attorney's fees. Chase claimed damages for twenty-eight unpaid monthly installments of $138.51 minus $750.00 received from the sale of the copier, plus $1,599.00 attorney's fees.

The jury returned a verdict in favor of Chase and awarded damages of $4,465.94.

In point I, Williams argues that the trial court lacked jurisdiction in personam over him.

The equipment lease entered herein contained a "Forum Selection Clause" and a "Choice of Law Provision" which provided:

JURISDICTION: The parties to this Lease agree that the law, statutes, and the appellate decisions of the State of Missouri, shall govern in the construction of this Lease and as to the application of the remedies of the parties in the event of default. In the event of default by Lessee, Lessee hereby consents and submits to the venue and jurisdiction of the Circuit Court of Randolph County, Missouri, or any other Missouri County at Lessor's election, for the purpose of determining and enforcing Lessor's remedies pursuant to this lease agreement. This Lease, regardless of situs of final signature, shall be determined to be executed in the County of Randolph, State of Missouri.

Williams claims that this provision is void and unenforceable because it is unreasonable and unfair. He also argues that the jurisdiction requirements of § 506.500, RSMo 1986, the Missouri long-arm statute, were not satisfied.

Although it is generally necessary to satisfy the Missouri long-arm statute to obtain in personam jurisdiction over a nonresident defendant pursuant to § 506.500, jurisdiction over the person may be obtained by consent or by waiver. State ex rel. Marlo v. Hess, 669 S.W.2d 291, 294 (Mo.App.1984). See also, Midwest Mech. Contr. v. Tampa Constructors, Inc., 659 F.Supp. 526 (W.D.Mo.1987).

Parties to a contract may agree in advance to submit to personal jurisdiction in a given court. Midwest Mech. Contr., 659 F.Supp. at 530. (citations omitted). A party can freely consent to the personal jurisdiction of a court because personal jurisdiction is an individual right capable of being waived. Id. However, the forum selection clause containing the defendant's consent must comply with applicable due process standards. Id, citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Thus, the clause must have been obtained through freely negotiated agreements absent fraud and overreaching and its enforcement must not be unreasonable and unjust. Id, citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). The party resisting enforcement of the clause, Mr. Williams, bears a heavy burden in convincing the court that he should not be held to his bargain. Id.

Williams argues that there was disparity in bargaining power, that Chase used a preprinted form contract and there was a great deal of inconvenience to him to be sued in Missouri, all factors attributing to his theory that the enforcement of the forum selection clause was unjust and unreasonable.

Clearly, the modern trend permits enforcement of a...