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08/30/95 DACE INTERNATIONAL v. APPLE COMPUTER

August 30, 1995

DACE INTERNATIONAL, INC., D/B/A COMPUTER CARE CENTERS, PLAINTIFF-APPELLANT,
v.
APPLE COMPUTER, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Kathy M. Flanagan, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

Presiding Justice Greiman delivered the opinion of the court: Rizzi and Tully, JJ., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Plaintiff Dace International, Inc. (Dace) brought a breach of contract action against defendant Apple Computer, Inc. (Apple) in the circuit court of Cook County. Apple filed a motion to dismiss under section 2-619 (735 ILCS 5/2-619 (West 1992)) based on a forum selection clause in the parties' contract which designated California as the forum for all litigation between the parties. The trial court granted this motion to dismiss.

On appeal, Dace alleges that: (1) the forum selection clause is, as a matter of law, void as against public policy; and (2) the clause is unenforceable under the facts of this case. We reject Dace's arguments, finding the clause at issue enforceable, and affirm the trial court.

In April 1991, Dace contracted with Apple to act as a computer sales consultant. The Authorized Apple Education Sales Consultant 1991 Agreement (the Agreement) allowed Dace to solicit and service professional education customers in Illinois.

In July 1991, Apple notified Dace that it was terminating the Agreement because of Dace's substandard performance. Dace alleges that its termination breached the parties' Agreement and that Dace had fully performed all of its duties under the Agreement.

Dace filed this breach of contract action in Illinois. Apple moved to dismiss claiming that the Agreement's forum selection clause established Santa Clara County, California as the site of any and all litigation between the parties.

The forum selection clause provides in part that:

"(1) This Agreement shall be governed by and construed in accordance with the laws of the State of California except that body of law known as Conflicts of Law.

(2) All actions or proceedings arising directly or indirectly from this Agreement other than those for injunctive relief shall be litigated in courts located within the County of Santa Clara, California. Consultant consents to the jurisdiction thereof and agrees not to disturb such choice of forum. If Consultant is not a residentof California, Consultant waives the personal service of any and all process upon it, and consents that all such service or process may be made by certified or registered mail, return receipt requested, addressed to Consultant as set forth in this Agreement."

The trial court enforced this clause and entered an order granting Apple's section 2-619 motion to dismiss Dace's action. In reviewing orders on motions to dismiss, we apply a de novo standard of review. Federal Ins. Co. v. St. Paul Fire & Marine Ins. Co. (1995), 271 Ill. App. 3d 1117, 649 N.E.2d 460, 208 Ill. Dec. 404; Toombs v. City of Champaign (1993), 245 Ill. App. 3d 580, 615 N.E.2d 50, 185 Ill. Dec. 755.

Dace first alleges the trial court erred in failing to recognize and apply Illinois' public policy disfavoring forum selection. In support of this allegation, Dace cites the recent Illinois Supreme Court decision in Williams v. Illinois State ...


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