Nordyne Inc. v. Int'l Cont. & Meas. Corp., 00-4063EM

• Decision Date: 15 June 2001
• Docket Number: No. 00-4063EM,00-4063EM
• Citation: 262 F.3d 843
• Parties: (8th Cir. 2001) NORDYNE, INC., APPELLANT, v. INTERNATIONAL CONTROLS & MEASUREMENTS CORPORATION APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 843

262 F.3d 843 (8th Cir. 2001)

NORDYNE, INC., APPELLANT, v. INTERNATIONAL CONTROLS & MEASUREMENTS CORPORATION APPELLEE.

No. 00-4063EM

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: June 15, 2001

Filed: August 22, 2001

On Appeal from the United States District Court for the Eastern District of Missouri.

Before McMILLIAN and Richard S. Arnold, Circuit Judges, and Dawson,¹ District Judge.

Richard S. Arnold, Circuit Judge.

Nordyne, Inc., appeals from the District Court's² order granting the motion of International Controls & Measurements Corporation (ICM) to dismiss Nordyne's breach-of-warranty action for improper venue. Nordyne, as buyer, and ICM, as seller, had been doing business for approximately ten years when the current dispute arose. Nordyne argues that the District Court erred in holding that a forum-selection clause on the reverse side of ICM's invoices was enforceable. We affirm.

I.

Nordyne, a Delaware corporation with its principal place of business in St. Louis, Missouri, manufactures heating, ventilation, and air conditioning equipment. ICM, a New York corporation, manufactures electronic defrost control boards for use in such equipment. Before the dispute underlying this law suit, Nordyne had purchased control boards from ICM for approximately ten years. In shipping products to Nordyne, ICM would forward a Customer Service Invoice with the following printed immediately below the heading: "CUSTOMER'S ORDER IS ACCEPTED ON THE EXPRESS CONDITION THAT THE TERMS AND CONDITIONS SET FORTH ON THE FACE AND REVERSE SIDE OF THIS INVOICE... SHALL APPLY AND THEY SHALL CONSTITUTE THE COMPLETE AGREEMENT BETWEEN THE PARTIES."

One of the Terms and Conditions of Sale printed on the reverse side of the Customer Service Invoice was a forum-selection provision: "In any action or proceeding brought pursuant to this agreement venue shall be laid in Onondaga, New York." Another term provided that ICM warranted its products for one year from the date of shipment. On several occasions, Nordyne availed itself of this one-year warranty.

In 1997, ICM began marketing a new version of the control panel Nordyne had been purchasing. ICM sent the first quotation for this product to Nordyne on May 13, 1997. Upon Nordyne's determination that one of the new features was not necessary for its purposes, ICM modified the control panel, and on July 29, 1997, tendered a new quotation for the unit as modified. This quotation was for Nordyne's estimated annual usage of 40,000 units at $9.87 per unit. The quotation provided that it was valid until December 31, 1997, that "[b]lanket orders must be fully released within one year," that standard commercial packaging would apply, that shipment would be "net 30 days; FOB Syracuse, NY," and that all orders were non-cancelable and non-returnable.

Printed on the bottom of the quotation was the following: "CONDITIONS ON REVERSE ARE PART OF THIS QUOTATION." These conditions included the following: "This quote is subject to the Seller's standard terms and conditions contained on the order acknowledgment." The conditions also included the statement, "All orders are subject to acceptance by the Seller at its home office in Cicero, New York."

Nordyne asked to see manufactured samples of the new control panel. On September 12, 1997, ICM sent five such samples to Nordyne with a letter from ICM's home office stating, "Full blown manufacturing of this device is awaiting your sign off of these check samples as approved for production. Please review the samples and'sign off' this document and send it back by return fax so that we may fulfill your production requirements in a timely manner." On September 15, Nordyne signed the production approval.

Two days later Nordyne issued a purchase order for 20,000 units at the quoted price, and under the shipping, payment, and packaging terms set forth in the quotation of July 29. The purchase order form stated, "Please enter our order for the above, subject to terms and conditions printed on reverse side.... Please acknowledge by signing and returning the attached acknowledgment form giving date of shipment." On the reverse side of the purchase order appeared Terms and Conditions, including the following: "Buyer shall not be bound by this order until Buyer receives the acknowledgment copy of this order executed by Seller, and acceptance of the order constitutes an acceptance of all of the conditions stated herein." None of the conditions related to choice of forum in case of a dispute. The acknowledgment form, which ICM signed on September 22, stated, "This order is acknowledged and accepted subject to the expressed terms and conditions thereon. Any exceptions are noted under vendor remarks at left." ICM did not insert any exceptions into the provided space.

ICM made its first shipment on September 30, 1997. Between that date and mid-August 1998, ICM shipped Nordyne's entire order of 46,151 units at the rate of approximately one shipment per week. With each shipment, ICM included the Customer Service Invoice described above, as had been the practice between the parties. Nordyne paid in full for all the units it ordered.

Thereafter, Nordyne began experiencing difficulties with the ICM control panel and filed a breach-of-warranty action in the District Court. ICM moved to dismiss the complaint for improper venue, invoking the forum-selection clause on the reverse side of its Customer Service Invoices.

II.

The District Court agreed with ICM that the forum-selection clause was part of the contract between the parties. Applying Missouri law, the Court held that the July 1997 price quotation was an offer because it was the result of negotiations between the parties and it was sufficiently complete and detailed. It stated price per unit, estimated quantity, and a description of the product. It also stated the date the quote would expire, the packaging to be used, and terms regarding delivery and payment. The Court held that the "order acknowledgment" referred to in this quotation was ICM's invoice, which as...