Preferred Capital, Inc. v. Power Eng. Group , 2005 Ohio 5113 ( 2005 )

{¶ 26} Under the facts presented, I would find that it is unjust and unreasonable to enforce the forum-selection clause in the manner suggested by appellant. I, therefore, respectfully dissent from the majority's decision.

{¶ 27} The majority notes that appellees have waived any due process requirement regarding personal jurisdiction because the forum-selection clause is valid. See Kennecorp Mtge. Brokers,Inc. v. Country Club Convalescent Hosp., Inc. (1993),66 Ohio St.3d 173, 174-175, 610 N.E.2d 987. In Kennecorp, the court noted that "the requirement that a court have personal jurisdiction over a party is a waivable right and there are a variety of legal arrangements whereby litigants may consent to the personal jurisdiction of a particular court system." (Emphasis added.) Id. at 175, 610 N.E.2d 987. To uphold the forum-selection clause presented, this court effectively holds that appellees waived due process requirements in every conceivable jurisdiction at the time they entered into the lease. I find such a position to be untenable.

{¶ 28} In Kennecorp, the forum-selection clause limited jurisdiction to Ohio. Id. Accordingly, the court had no reason to determine whether a non-specific forum selection clause could waive personal-jurisdiction requirements in every state. I would find that it cannot.

{¶ 29} Waiver entails the voluntary relinquishment of a known right or intentionally doing an act inconsistent with claiming that right. Mondl v. Mondl (Dec. 5, 2001), 9th Dist. No. 20570,2001 WL 1545638. At the time the parties entered into the lease, no mention was made that Ohio was a proper jurisdiction. I, therefore, cannot conclude that appellees voluntarily relinquished their due process rights and waived the personal jurisdiction requirements imposed by both the Ohio and United States Constitutions. Courts in general indulge in every reasonable presumption against the waiver of fundamental constitutional rights. Johnson v. Zerbst (1938), 304 U.S. 458,464, 58 S.Ct. 1019, 82 L.Ed. 1461, overruled on other grounds byEdwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880,68 L.Ed.2d 378. I find no reason to abandon such a presumption given the alternative interpretation of the forum-selection clause — i.e., that appellees waived their due process rights under both the federal constitution and every state constitution and subjected themselves to nationwide jurisdiction with one signature on a lease.⁶

{¶ 30} Accordingly, I would proceed to determine whether appellees had minimum contacts with Ohio to justify invoking personal jurisdiction over them.

When deciding whether a defendant falls within the reach of the long-arm statute, a court should consider three factors:

"`First, the defendant must purposely avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.'" Cincinnati Art Galleries v. Fatzie (1990), 70 Ohio App.3d 696, 699, 591 N.E.2d 1336, 1338, quoting S. Machine Co. v. Mohasco Industries, Inc. (C.A.6, 1968), 401 F.2d 374, 381.

Krutowsky v. Simonson (1996), 109 Ohio App.3d 367, 370,672 N.E.2d 219. In the instant matter, the only connection that appellees have with Ohio are the leases assigned by NorVergence. It cannot be said, therefore, that appellees purposely availed themselves of the privilege of acting in Ohio.

{¶ 31} As a result, I find that it would be unreasonable and unjust to force appellees to be subjected to litigation in Ohio. I would hold the forum-selection clause unenforceable, as it attempts to waive personal jurisdiction at a national level without any reference to a specific jurisdiction. As Ohio's long-arm statute cannot be utilized to exercise jurisdiction over appellees, I would affirm the trial court's decision dismissing the cases.

⁶ The majority's interpretation of this waiver suggests that such a waiver would also include foreign jurisdictions, as it places no limits on the concept of the waiver of due process rights.