Vanderveen's Importing Co. v. Keramische Industrie M. deWit, Docket No. 141172

• Decision Date: 19 April 1993
• Docket Number: Docket No. 141172
• Citation: 199 Mich.App. 359,500 N.W.2d 779
• Parties: VANDERVEEN'S IMPORTING COMPANY, a Michigan Corporation, Plaintiff-Appellee, v. KERAMISCHE INDUSTRIE M. deWIT, a Netherlands Company, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 779

500 N.W.2d 779

199 Mich.App. 359

VANDERVEEN'S IMPORTING COMPANY, a Michigan Corporation Plaintiff-Appellee, v. KERAMISCHE INDUSTRIE M. deWIT, a Netherlands Company Defendant-Appellant.

Docket No. 141172.

Court of Appeals of Michigan.

Submitted March 3, 1993, at Grand Rapids.

Decided April 19, 1993, at 9:15 a.m.

Released for Publication June 24, 1993.

Idema & Keyser, P.C. by Joseph H. Doele, Grand Rapids, for plaintiff-appellee.

Donald H. Hann, Holland, for defendant-appellant.

Before McDONALD, P.J., and REILLY and FITZGERALD, JJ.

REILLY, Judge.

Defendant appeals as of right a May 8, 1991, conditional consent judgment entered in the Kent Circuit Court. In stipulating to the entry of the consent judgment, the parties agreed as follows:

The Defendant reserves the right to appeal the rulings concerning jurisdiction and the question of whether or not the matter should have been tried in the Netherlands. The Defendant reserves the right to defend the action in the Netherlands, as to all questions. The defendant does not contest that proper service of process was made under Michigan law.

Before the entry of the consent judgment, the trial court denied defendant's motion for summary disposition pursuant to MCR 2.116(C)(1) (lack of jurisdiction over the person or property) and MCR 2.116(C)(3) (service of process insufficient). Although defendant did not specifically, by motion, request a change of venue, it argued at the motion hearing that it was entitled to have the case tried in the Netherlands, the forum agreed upon by the parties for resolution of any disputes arising out of the contract. The trial court's order denied defendant's motion for summary disposition without explanation. However, the court addressed the choice-of-forum issue at the motion hearing. The court determined that, in spite of the agreement of the parties, the action should be maintained in Michigan because the Netherlands would be "a substantially less convenient place for the trial of the action" than this state. M.C.L. § 600.745; M.S.A. § 27A.745. ¹ We reverse and remand.

Defendant Keramische Industrie M. deWit is a Netherlands corporation that manufactures Delft pottery. Plaintiff Vanderveen's Importing Company is a Michigan corporation operating out of Grand Rapids. Plaintiff made several purchases of Delft earthenware between September 1985 and July 1987 from defendant's factory in the Netherlands. According to the "General Conditions of Sale" and affidavits, which are undisputed, all sales involved in this action were made f.o.b. Rotterdam, the Netherlands. Plaintiff made all arrangements for transportation of the pottery to the United States, including charges, fees, and paperwork. All sales were under the General Conditions of Sale of the Association of Souvenir Manufacturers filed with the Court Registry of the District Court at Utrecht, the Netherlands, No. 919/1983. The General Conditions of Sale provide, in pertinent part:

8. All goods are manufactured according to their standard specifications. In case of special orders deviating from existing models or colours, a supplement shall be charged after previous written consultation. Specimens, photographs and drawings remain our property and may not be copied or made available to third parties....

* * *

16. * * *

Any disputes directly or indirectly concerning sales agreements to which these General Conditions of Sale are applicable, will in the first instance be adjudicated by the competent court of the District of Utrecht. In mutual consultation, the parties are entitled to resolve disputes by arbitration.

If and in so far as these General Conditions of Sale should differ in content or scope from any Purchase Conditions drawn up by the purchaser, our Conditions of Sale and Delivery shall prevail over anything stated differently or additionally by the purchaser, unless any deviation is expressly agreed by us in writing. ²

In the summer of 1987, plaintiff was informed by the United States Food and Drug Administration that some of the Delft earthenware that was to be used to serve food or beverages had an unacceptably high lead content that posed a health hazard. Plaintiff was advised that the items had to be recalled and destroyed or returned to the manufacturer. Following recall of the hazardous goods, plaintiff demanded that defendant reimburse it for all the returned products and for the expenses incurred because of the recall, including transportation back to the Netherlands. Although the defendant agreed to refund the purchase price and pay for return freight, it refused to pay for the cost of the recall. ³ Plaintiff then filed this action, claiming breach of warranty of merchantability.

The sole issue presented for review is whether the trial court erred in determining that venue was proper in Michigan, pursuant to M.C.L. § 600.745; M.S.A. § 27A.745, in spite of the parties' valid agreement that the forum for resolution of disputes would be in the Netherlands. In ruling that the Netherlands would be a substantially less convenient place for the trial of the action than Michigan, the trial court relied on plaintiff's representation that several witnesses from the FDA would have to be called to substantiate its claims that the Delft earthenware was not fit for the purpose intended. The trial court apparently accepted plaintiff's argument that federal regulations and the Uniform Commercial Code must be applied in determining the obligations of the parties under their contract of sale. Without additional findings by the trial court, we believe this ruling was erroneous.

To determine whether trial in the Netherlands would be substantially...