This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Vijuk Equipment, Inc.,
Filed January 28, 2003
Hennepin County District Court
File No. CT024682
Kimberly Fleming, Paul C. Peterson, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402-4217 (for respondent)
Donald W. Niles, Casey A. Kniser, Patterson, Thuente, Skaar & Christensen, P.A., 4800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Appellant, the defendant in this breach-of-contract action, challenges the district court’s denial of a motion to enjoin proceedings in Minnesota. Appellant contends that the parties’ contract contains a valid and enforceable forum-selection clause that designates Illinois as the sole jurisdiction for the resolution of disputes arising from the contract. Because we conclude that the district court erred in its interpretation of the contract, we reverse and remand.
Appellant Vijuk Equipment, Inc. is an Illinois corporation that manufactures and sells paper-folding machinery. Respondent Impressions, Inc. is a Minnesota corporation that operates a commercial printing business.
In March 2001, Impressions contacted Vijuk about purchasing machinery used to fold pharmaceutical brochures. On October 3, 2001, Vijuk sent Impressions a quotation containing an offer to sell Impressions the machinery. The quotation, in a section entitled “terms and conditions,” contained the following:
5. DELIVERY: Shipment and delivery dates are estimates. [Vijuk] will make reasonable effort to fulfill such estimates, but such dates are subject to manufacturer’s delivery and other factors reasonably beyond [Vijuk’s] control.
* * * *
12. LAW APPLICABLE: The Terms and Conditions of Quotation shall be construed in accordance with and governed by the laws of the state of Illinois without giving effect to the choice of law provisions thereof. The place of this Contract, its status of forum is at all times the state of Illinois. All matters, whether sounding in Contract or in tort, relating to the validity, construction or interpretation and enforcement of this Contract or any and all suits for any and every breach of this Contract shall be solely instituted and maintained in any court of competent jurisdiction in the State of Illinois, as per Vijuk’s selection.
The quotation provided that Vijuk would deliver the machinery within three weeks if Impressions accepted the offer by October 5. But Impressions wanted to ensure that the machinery would be delivered and operational by November 2. Thus, on October 10, the parties agreed to an addendum to the quotation. The addendum, in its entirety, states:
Under terms and conditions of the contract the following shall super[s]ede the standard terms and conditions of the contract.
Item #5 (Delivery) – The equipment will deliver complete on or before October 31, 2001. Installation will take place the following day of receipt with training conducted immediately following installation.
If the terms are not met as stated above: all money shall be returned to Impressions, Inc. and the contract will be null and void.
The parties signed both the quotation and the addendum.
Vijuk delivered the machinery on October 29, 2001, but Impressions was dissatisfied with the product and considered it defective. Impressions commenced a breach-of-contract action against Vijuk in Hennepin County District Court on January 31, 2002. Later on that same day, Vijuk filed a claim against Impressions for the unpaid portion of the purchase price in a DuPage County, Illinois circuit court.
Arguing that paragraph 12 of the “terms and conditions” of the quotation was a valid and enforceable forum-selection clause, Vijuk moved the district court to enjoin proceedings in Minnesota, pending the resolution of the Illinois lawsuit. The district court denied Vijuk’s motion, concluding that (1) the addendum superseded the forum-selection clause and (2) the Minnesota lawsuit was entitled to proceed under the “first-filed rule.”
Vijuk now appeals, arguing that the district court (1) erred in its interpretation of the parties’ contract and (2) abused its discretion by not granting Vijuk’s motion to enjoin proceedings in Minnesota, thereby enforcing the forum-selection clause.
D E C I S I O N
Vijuk has moved this court to strike Impressions’ appendix and to strike any references to the material therein from Impressions’ brief. The appendix contains (1) a copy of Impressions’ answer in this case and (2) an unsigned and undated copy of an order from the DuPage County, Illinois circuit court dismissing Vijuk’s action without prejudice (“Illinois court order”). Vijuk argues that these documents should be stricken because they were neither “presented to [n]or considered by” the district court.
“The papers filed in the [district] court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.” Minn. R. Civ. App. P. 110.01. This court “will strike documents included in a party’s [appendix] that are not part of the appellate record.” State v. Keeton, 573 N.W.2d 378, 385 (Minn. App. 1997) (quotation omitted).
Impressions’ answer is dated and was filed in the district court on July 29, 2002. The answer was not part of the record when the district court heard Vijuk’s motion to enjoin proceedings in Minnesota on May 20, and we have not relied on it in reaching our decision here. Thus, it is unnecessary for this court to strike the answer from Impressions’ appendix.
With respect to the Illinois court order, we have no evidence that it was ever submitted to the district court, and it is not part of the record forwarded to this court. Furthermore, because the Illinois court order is unsigned and undated, there is no basis for us to take judicial notice of the order. Thus, we grant Vijuk’s motion to strike the Illinois court order from Impressions’ appendix and to strike any references to the order from Impressions’ brief.
Vijuk argues that the district court abused its discretion by not granting its motion to enjoin proceedings in Minnesota, thereby enforcing the forum-selection clause contained in the quotation. Ordinarily, the decision to enforce a forum-selection clause lies within the discretion of the district court. Personalized Mktg. Serv., Inc. v. Stotler & Co., 447 N.W.2d 447, 451 (Minn. App. 1989), review denied (Minn. Jan. 12, 1990). But where the district court’s refusal to exercise its discretion is based on an error of law, the proper standard of review is de novo. Halla Nursery, Inc. v. Bauman-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).
A. Contract interpretation
Vijuk argues that the district court erred by concluding that the addendum superseded the forum-selection clause in the quotation. “Unambiguous contract language must be given its plain and ordinary meaning.” Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d 700, 704 (Minn. 1999). “A contract is ambiguous if its language is reasonably susceptible to more than one interpretation.” Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 394 (Minn. 1998) (citation omitted).
Here, the quotation and addendum constitute the parties’ contract. The quotation contains a list of terms and conditions. This list includes a term entitled: “5. DELIVERY.” The sole term in the addendum is entitled: “Item #5 (Delivery).” Because the addendum uses the same numbering system as the quotation, we conclude that the addendum unambiguously changed only the delivery term. It is not reasonable to conclude that the parties would continue to use the same numbering system for a single term if they wanted that single term to supersede all of the terms and conditions listed in the quotation, including the forum-selection clause. Thus, the district court erred in its interpretation of the parties’ contract.
B. Forum-selection clause
Vijuk asserts that the forum-selection clause should be enforced. The district court did not address the enforceability of the clause in its order because of its conclusion that the addendum superseded the forum-selection clause.
Impressions does not discuss the enforceability of the forum-selection clause in its brief, asserting instead that the issue before this court is whether the district court abused its discretion by concluding that the Minnesota action could proceed under the “first-filed rule.” But whether Impressions filed suit in Minnesota before Vijuk filed in Illinois is of no consequence if there is an enforceable forum-selection clause here. Examination of the issue even as framed by Impressions therefore requires a determination of the enforceability of the forum-selection clause. Further, we note that Impressions argued against enforcement of the forum-selection clause in its memorandum of law in opposition to Vijuk’s motion to enjoin the proceedings (“memorandum”) submitted to the district court. We will address the enforceability issue.
When parties to a contract agree to a forum-selection clause, that agreement “should be given effect unless it is shown by the party seeking to avoid the agreement that to do so would be unfair or unreasonable.” Hauenstein & Bermeister, Inc. v. Met-Fab Indus., Inc., 320 N.W.2d 886, 890 (Minn. 1982).
The elements of unreasonableness can be divided into three categories: (1) the chosen forum is a seriously inconvenient place for trial; (2) the choice of forum agreement is one of adhesion; and (3) the agreement is otherwise unreasonable.
1. Seriously inconvenient forum
A forum is “seriously inconvenient” if litigating the claim there would effectively deprive one party “of a meaningful day in court.” Id. (quotation omitted). In its memorandum, Impressions stated that the majority of witnesses are in Minnesota and that the machinery was installed and remains in Minnesota. While these facts make Minnesota an appropriate forum, they do not make Illinois a “seriously inconvenient” forum. Furthermore, in its memorandum Impressions did not assert that it was in any way incapable of litigating the claim in an Illinois court. Thus, Impressions did not establish that Illinois would be a “seriously inconvenient” forum.
2. Contract of adhesion
Contracts of adhesion “are the product of unequal bargaining power” between the parties. Id. at 891. As a result, they are also described as “take-it-or-leave-it” contracts. Id. The use of boilerplate language in printed forms is common in such agreements, but this characteristic alone does not create a contract of adhesion. Id.
Instead, the adhesiveness of a contract depends upon factors such as the relative bargaining power of the parties, the opportunity for negotiation, the availability of the service for which the parties contracted, whether the service was a public necessity, and the business sophistication of the parties.
Interfund Corp. v. O’Byrne, 462 N.W.2d 86, 89 (Minn. App. 1990) (citation omitted).
In its memorandum, Impressions argued that the parties’ agreement was a contract of adhesion. Specifically, Impressions asserted that Vijuk provided the quotation knowing that Impressions was under pressure to acquire an operational paper-folding machine by November 2001: “Vijuk’s quote, in fact, required Impressions to decide almost immediately whether to place the order or lose the opportunity to receive the equipment within that deadline.” Furthermore, Impressions claims that “the number of manufacturers of such equipment is extremely limited.”
But even if we assume that Impressions’ assertions are true, they do not establish that the agreement was a contract of adhesion. The fact that the parties agreed to the addendum demonstrates that there was an opportunity for negotiation and that the quotation was not a “take-it-or-leave-it” proposition. Moreover, despite the existence of a limited number of manufacturers, paper-folding machinery is by no means a “public necessity.” Finally, the record does not suggest that Impressions was unsophisticated with respect to purchasing machinery for its commercial printing business. We therefore conclude that the parties’ agreement was not a contract of adhesion.
3. Otherwise unreasonable
In its memorandum, Impressions did not argue that the contract was “otherwise unreasonable,” and we see no reason to conclude that the forum-selection clause is unenforceable on this basis.
We conclude that enforcing the forum-selection clause would not be unfair or unreasonable. We therefore reverse the district court’s refusal to enforce the forum-selection clause, and we remand for the district court either to grant Vijuk’s motion to enjoin proceedings in Minnesota or, if Vijuk so chooses, to grant a motion to dismiss without prejudice, to allow the claims to be litigated in Illinois. See, e.g., Alpha Sys. Integration, Inc. v. Silicon Graphics, Inc., 646 N.W.2d 904, 907 (Minn. App. 2002) (affirming dismissal without prejudice based on forum-selection clause).
Reversed and remanded; motion granted in part.