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06/01/87 Ottone A. Calanca, v. D & S Manufacturing

June 1, 1987

OTTONE A. CALANCA, PLAINTIFF-APPELLANT

v.

D & S MANUFACTURING COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

510 N.E.2d 21, 157 Ill. App. 3d 85, 109 Ill. Dec. 400 1987.IL.724

Appeal from the Circuit Court of Cook County; the Hon. Lester D. Foreman, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

Plaintiff, Ottone A. Calanca, appeals from the order of the circuit court of Cook County granting defendant's, D & S Manufacturing Company's, motion to dismiss plaintiff's complaint. For the reasons that follow, we affirm.

The pleadings reveal the following facts: Plaintiff, an Illinois resident, and defendant, a Wisconsin corporation, entered into an employment contract on February 1, 1983. Plaintiff was to act as a sales representative on behalf of defendant and was to perform his services in Illinois, primarily by procuring orders from Hycor and Rotec, Illinois corporations. He was paid mostly by commissions. The contract, which was for a term of three months, provided that the parties could extend the agreement from time to time by a written agreement. In addition, paragraph 10 of the contract provided:

"10. LITIGATION : That the parties hereto agree that this agreement shall be interpreted in accordance with the laws of the State of Wisconsin and in the event of any litigation or claim by either party against the other, that proper forum for the resolution of such claim shall be the Circuit Court for Jackson County, Wisconsin."

On November 15, 1983, James Dougherty, the president of D & S Manufacturing, terminated plaintiff's employment prior to the expiration of the employment contract, but after plaintiff had obtained orders from Hycor and Rotec. On November 20, 1984, plaintiff filed a complaint for breach of contract against defendant in the circuit court of Cook County, Illinois, to obtain the commissions defendant owed him.

On December 28, 1984, defendant moved to dismiss the complaint pursuant to section 2-619 of the Illinois Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-619). Defendant's two bases for dismissal were that: (1) the forum selection clause in the employment contract required that any litigation between the parties be held in the circuit court for Jackson County, Wisconsin, and (2) the doctrine of forum non conveniens required dismissal.

On January 28, 1986, after hearing arguments, the circuit court found that the venue clause in paragraph 10 of the contract was enforceable and granted defendant's motion to dismiss., Plaintiff contends that paragraph 10 of the contract merely suggests that Wisconsin is a permissible, but not the exclusive, forum for litigation. We disagree.

The clause at issue provides in part that the "proper forum . . . shall be the Circuit Court for Jackson County, Wisconsin." (Emphasis added.) Case law has construed the words "shall" and "must," in a forum selection clause, to mean that the stated forum is exclusive. (See, e.g., The Bremen v. Zapata Off-Shore Co. (1972), 407 U.S. 1, 32 L. Ed. 2d 513, 92 S. Ct. 1907; Coastal Steel Corp. v. Tilghman Wheelabrator, Ltd. (3d Cir. 1983), 709 F.2d 190, cert. denied sub nom. Coastal Steel Corp v. Wheelabrator-Frye, Inc. (1983), 464 U.S. 938, 78 L. Ed. 2d 315, 104 S. Ct. 349; Hoes of America v. Hoes (C.D. Ill. 1979), 493 F. Supp. 1205.) By looking at the plain meaning of the clause at issue, it is obvious that it is mandatory. Plaintiff attempts to read around the plain meaning by arguing that "proper" merely means "suitable" or "fitting," but not exclusive. However, in doing so, plaintiff ignores the word "shall."

Additionally, as support for his position, plaintiff cites Walter E. Heller & Co. v. James Godbe Co. (N.D. Ill. 1984), 601 F. Supp. 319, and G.H. Miller & Co. v. Hanes (N.D. Ill. 1983), 566 F. Supp. 305, where the district courts held that certain contract clauses were not enforceable as exclusive forum selection clauses. Those cases, however, are distinguishable. In them, the courts determined that certain clauses in a contract were consent to jurisdiction, not forum selection, clauses. Thus, when both parties to the contracts consented to jurisdiction in a particular forum, that forum was established as permissible for litigation, but not exclusive. In the instant case, however, the language in paragraph 10 was sufficiently different from the language in the clauses in Heller and Miller such that we find that paragraph 10 is a forum selection clause and not merely a consent to jurisdiction in Wisconsin.

A forum selection clause in a contract is prima facie valid and should be enforced unless the opposing party shows that enforcement would be unreasonable under the circumstances. (The Bremen v. Zapata Off-Shore Co. (1972), 407 U.S. 1, 10, 32 L. Ed. 2d 513, 520-521, 92 S. Ct. 1907, 1913; Friedman v. World ...


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