Eckhardt v. Idea Factory, LLC

• Decision Date: 30 September 2021
• Docket Number: 1-21-0813
• Citation: 2021 IL App (1st) 210813,193 N.E.3d 182,456 Ill.Dec. 214
• Parties: Thomas Donovan ECKHARDT Jr., Plaintiff-Appellant, v. The IDEA FACTORY, LLC, a California Limited Liability Company, d/b/a Big Table Media, and Scripps Networks, LLC, a Delaware Limited Liability Company, d/b/a HGTV, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2021 IL App (1st) 210813

193 N.E.3d 182

456 Ill.Dec. 214

Thomas Donovan ECKHARDT Jr., Plaintiff-Appellant,

v.The IDEA FACTORY, LLC, a California Limited Liability Company, d/b/a Big Table Media, and Scripps Networks, LLC, a Delaware Limited Liability Company, d/b/a HGTV, Defendants-Appellees.

1-21-0813

Appellate Court of Illinois, First District, Fourth Division.

Filed September 30, 2021

Daniel P. Hogan, of McCabe & Hogan, P.C., of Palatine, for appellant.

Steven A. Levy, of Goldberg Kohn Ltd., of Chicago, and Josh H. Escovedo, of Weintraub Tobin Law Corp., of Sacramento, California, for appellee The Idea Factory, LLC.

Steven P. Mandell, Brian D. Saucier, and George V. Desh, of Mandell Menkes LLC, of Chicago, for other appellee.

JUSTICE MARTIN delivered the judgment of the court, with opinion.

¶ 1 In this appeal, we determine whether a contract's forum selection clause—where a television production company engaged an individual to appear as an "On-Camera Personality" and "Renovation Expert" for a "reality" show about renovating houses—encompasses tort claims based on the individual's negative portrayal in the show. The plaintiff, Thomas Donovan Eckhardt Jr. (Donovan),¹ appeals from the circuit court's order dismissing his complaint upon finding that the forum selection clause in his agreement with Big Table Media required him to file his tort claims of defamation and intentional infliction of emotional distress in the state of California. Though our reasoning differs, we affirm.²

¶ 2 I. BACKGROUND

¶ 3 According to his complaint,³ Donovan founded two construction and design companies that focus on residential real estate in the Chicago area. In 2016, Donovan started collaborating with Alison Gramenos, who is also known as Alison Victoria (Alison),⁴ to develop a television series titled Windy City Rehab. The show would depict Donovan and Alison's partnership to acquire, renovate, and sell residential properties in Chicago. Filming for Windy City Rehab began in September 2017 and was broadcast on the network HGTV beginning in 2019.

¶ 4 Defendants, The Idea Factory, LLC, and Scripps Networks, LLC (hereinafter Big Table Media and HGTV, respectively), had complete discretion over the editing and production of what ultimately aired on television. Donovan's complaint alleges that the defendants staged and edited the show for dramatic effect, falsely portraying him as a villain. Specifically, he claims the show insinuated that he misappropriated funds, was dishonest, or incompetently managed projects.

¶ 5 As a result of his portrayal on Windy City Rehab , Donovan alleges that his reputation and construction business have been harmed. He claims viewers believe that he committed a crime, lacks integrity, and is unreliable. Donovan avers that his mental and physical health have suffered in addition to his business.

¶ 6 Donovan brought this action naming Big Table Media and HGTV as defendants. His complaint asserts claims for defamation and intentional infliction of emotional distress. The defendants filed a joint motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619 (West 2018) ).⁵ The motion asserted that Donovan executed a written agreement with Big Table Media for his appearance on Windy City Rehab that included "Standard Terms and Conditions." Among the standard terms is a forum selection clause in which the parties agreed to the exclusive jurisdiction of California and venue in Sacramento County. A copy of the agreement was attached to the motion. Paragraph 16 of the 8-page agreement states as follows:

"This Agreement shall be governed by the laws of the State of California. The parties agree to submit to exclusive personal jurisdiction in the State of California with venue in the County of Sacramento and waive any rights they might otherwise have to lack of jurisdiction and/or inconvenient forum."

¶ 7 The trial court found that, although Donovan was not asserting contract claims, the forum selection provision covered his tort claims because their adjudication would require interpretation of the agreement. The court pointed to paragraph 2(b), which gave defendants the "unlimited right to cut, edit, add to subtract and omit from, adapt, change, arrange, rearrange, or otherwise modify" the show. Due to that term, the court concluded it was "readily apparent" that interpretation of the agreement would be necessary to resolve the claims. After finding the forum selection clause prima facie valid, the court then rejected Donovan's contention that enforcement would be unreasonable based on the court's finding that relevant factors weighed in favor of enforcement. Thus, the court ultimately concluded that it lacked subject-matter jurisdiction and dismissed the complaint without prejudice for Donovan to refile in California. This appeal followed. Donovan claims the circuit court erred in dismissing his complaint by finding that the forum selection clause applied to his tort claims and requests we remand this cause to the circuit court for further proceedings. We granted Donovan's motion for expedited review pursuant to Illinois Supreme Court Rule 311(b) (eff. July 1, 2018).

¶ 8 II. ANALYSIS

¶ 9 Donovan's complaint was dismissed pursuant to section 2-619 of the Code. Dismissal under section 2-619 is appropriate when an affirmative matter bars the plaintiff's claims. Smith v. Waukegan Park District , 231 Ill. 2d 111, 120, 324 Ill.Dec. 446, 896 N.E.2d 232 (2008). This court has considered the existence of an enforceable forum selection clause in a contract as an affirmative matter that may warrant dismissal under section 2-619. See, e.g. , Brandt v. MillerCoors, LLC , 2013 IL App (1st) 120431, ¶¶ 12, 23, 373 Ill.Dec. 116, 993 N.E.2d 116 ; Dace International, Inc. v. Apple Computer, Inc. , 275 Ill. App. 3d 234, 237, 211 Ill.Dec. 591, 655 N.E.2d 974 (1995). We review a circuit court's section 2-619 dismissal de novo. Patrick Engineering, Inc. v. City of Naperville , 2012 IL 113148, ¶ 31, 364 Ill.Dec. 40, 976 N.E.2d 318. However, we may affirm on any basis supported by the record. BDO Seidman, LLP v. Harris , 379 Ill. App. 3d 918, 923, 319 Ill.Dec. 199, 885 N.E.2d 470 (2008).

¶ 10 Illinois courts consider forum selection clauses prima facie valid and enforceable unless the party opposing enforcement demonstrates that requiring them to litigate in the selected forum "will be so gravely difficult and inconvenient that [the opposing party] will for all practical purposes be deprived of [its] day in court." (Internal quotation marks omitted.) Brandt , 2013 IL App (1st) 120431, ¶ 13, 373 Ill.Dec. 116, 993 N.E.2d 116 (quoting Calanca v. D&S Manufacturing Co. , 157 Ill. App. 3d 85, 87-88, 109 Ill.Dec. 400, 510 N.E.2d 21 (1987), quoting The Bremen v. Zapata Off-Shore Co. , 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) ). To determine whether a forum selection clause is unreasonable, courts consider (1) the law governing the formation and construction of the contract, (2) residency of the parties, (3) location of execution or performance of the contract, (4) location of the parties and witnesses, (5) the inconvenience to the parties of any particular location, and (6) whether the parties bargained for the clause. Id. (citing Calanca , 157 Ill. App. 3d at 88, 109 Ill.Dec. 400, 510 N.E.2d 21 ).

¶ 11 However, Donovan argues this case presents a preliminary issue of whether the forum selection clause even applies to his claims. Accordingly, we must first resolve that question before considering the reasonableness of enforcement. Illinois courts have had little occasion to address whether noncontractual claims fall within the scope of a forum selection clause. In two cases, Boatwright v. Delott , 267 Ill. App. 3d 916, 205 Ill.Dec. 10, 642 N.E.2d 875 (1994), and Solargenix Energy, LLC v. Acciona, S.A. , 2014 IL App (1st) 123403, 384 Ill.Dec. 598, 17 N.E.3d 171, this court mentioned that a forum selection clause could encompass noncontractual claims. The trial court cited both Boatwright and Solargenix to support its finding that the forum selection clause applied to Donovan's claims. However, neither opinion's brief treatment of the issue went beyond mere recognition of the possibility that a forum selection clause could encompass noncontractual claims, and the issue was collateral to the dispositive questions in both appeals.

¶ 12 In Boatwright , the court remarked, "forum selection clauses apply to tort claims which require interpretation of the contract" and went on to cite federal court decisions to support that proposition. Boatwright , 267 Ill. App. 3d at 918, 205 Ill.Dec. 10, 642 N.E.2d 875. However, the issue in Boatwright was whether Illinois or Texas law applied to establish the pleading standard for fraud since the parties’ written contract provided Texas law would apply. The court seemed to imprecisely refer to the contract's choice-of-law provision as a forum selection clause and conflate the two concepts. In any event, forum was not at issue in the case.

¶ 13 Similarly, in Solargenix , the issue was whether Illinois state courts could exercise personal jurisdiction over Spanish companies when their American subsidiaries were parties to a joint venture agreement that provided for disputes " ‘relating to this Agreement’ " to be adjudicated in Chicago. (Emphasis omitted.) Solargenix , 2014 IL App (1st) 123403, ¶ 15, 384 Ill.Dec. 598, 17 N.E.3d 171. Citing decisions from federal appellate courts, the Solargenix court observed "forum selection clauses have been held to apply not merely to contract claims involving the terms of the contract in which the clause appears, but also to other claims that are otherwise connected to the contract, such as tort claims arising from the contract." Id. ¶ 34. In context, this statement was offered as part of the court's explanation as to why the Spanish defendants could foresee that they would be bound by the forum selection clause agreed to by their...