Ex parte Rymer
Decision Date | 07 February 2003 |
Citation | 860 So.2d 339 |
Parties | Ex parte Collette RYMER and BellSouth Advertising & Publishing Corporation. (In re Patrick P. Hughes v. Collette Rymer et al.) |
Court | Alabama Supreme Court |
Craig A. Alexander and Paul D. Satterwhite of Lange, Simpson, Robinson & Somerville, L.L.P., Birmingham, for petitioners.
R.M. Woodrow of Doster & Woodrow, Anniston, for respondent.
BellSouth Advertising & Publishing Corporation, a corporation whose headquarters are in Georgia ("BAPCO"), and Collette Rymer, an account representative for BAPCO, defendants in an action pending in the Calhoun Circuit Court, petition this Court for a writ of mandamus directing the trial court to grant Rymer and BAPCO's motion to dismiss for improper venue. We grant the petition and issue the writ.
On February 17, 2000, Patrick P. Hughes, an attorney, and Rymer executed an order form ("the contract"), pursuant to which Hughes was to purchase an advertisement in a telephone directory published by BAPCO.1 The contract contained the following paragraph just above Rymer's and Hughes's signatures on the front page:
The reverse side of the contract is entitled "Terms and Conditions." Paragraph 11 of the Terms and Conditions states:
On September 28, 2000, Hughes sued Rymer and BAPCO in the Calhoun Circuit Court alleging breach of contract, fraud, misrepresentation, the tort of outrage, conversion, and negligence. On November 2, 2000, Rymer and BAPCO filed a motion to dismiss pursuant to Rule 12(b)(3), Ala. R. Civ. P., alleging that venue in the Calhoun Circuit Court was improper based on the "outbound" forum-selection clause contained in paragraph 11 of the contract. After a hearing, the trial court denied Rymer and BAPCO's motion to dismiss, finding that enforcement of the outbound forum-selection clause would be unfair on the basis of "fraud, undue influence, and Defendants' bargaining power and that enforcement would be unreasonable on the basis that the chosen forum would be inconvenient for the trial of this action."
An outbound forum-selection clause—a clause by which parties specifically agree to trial outside the State of Alabama in the event of a dispute—implicates the venue of a court rather than its jurisdiction. See Ex parte CTB, Inc., 782 So.2d 188 (Ala.2000)
; and O'Brien Eng'g Co. v. Continental Machs., Inc., 738 So.2d 844, 845 n. 1 (Ala.1999).
Ex parte CTB, Inc., 782 So.2d at 190. "On appeal, the review of a trial court's ruling on the question of enforcing a forum-selection clause is for an abuse of discretion." Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala.2001).
Analysis
Sutherland, 700 So.2d at 352. See also Ex parte CTB, Inc., 782 So.2d at 190-91
; and Ex parte Northern Capital Res. Corp., 751 So.2d 12, 14 (Ala.1999). Rymer and BAPCO contend that they have a clear legal right to the enforcement of the outbound forum-selection clause because, they say, Hughes failed to carry his burden of clearly establishing that enforcement of the clause would be unfair or unreasonable.
In order to demonstrate that enforcement of the clause would be unfair, Hughes must show that the contract was affected by fraud, undue influence, or overweening bargaining power. Sutherland, 700 So.2d at 352. First, Rymer and BAPCO argue that Hughes failed to demonstrate that the contract was affected by fraud. We agree. Although Hughes strenuously asserts that "this contract was affected by fraud and would not have been entered into absent that fraud" (Hughes's answer at 4), he fails to provide any evidence indicating that Rymer and BAPCO committed fraud of any kind. Furthermore, Hughes fails to explain exactly how the contract was actually affected by the alleged fraud.
In support of his opposition to Rymer and BAPCO's motion to dismiss based on the outbound forum-selection clause, Hughes submitted two affidavits. In the first affidavit Hughes does not mention fraud, but instead contends that he did not read the contract before he signed it. Alabama law holds that "a person who signs a contract is on notice of the terms therein and is bound thereby even if he or she fails to read the document." Locklear Dodge City, Inc. v. Kimbrell, 703 So.2d 303, 306 (Ala.1997)(citing Power Equip. Co. v. First Alabama Bank, 585 So.2d 1291 (Ala.1991)). The second affidavit merely contains the conclusory assertion that "[t]he contract language raised by [BAPCO and Rymer] was induced by fraud and undue influence." Hughes's conclusory assertions, without more, are insufficient to meet his burden of clearly establishing that enforcement of the outbound forum-selection clause would be unfair under the circumstances. See Ex parte D.M. White Constr. Co., supra ( ).
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