Opinion
11-P-388
12-13-2011
SHAHEEN BROS. INC. v. AFS TECHNOLOGIES INC.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiff Shaheen Bros. Inc. (Shaheen) appeals the trial judge's grant of summary judgment in favor of defendant AFS Technologies Inc. (AFS). The judge granted summary judgment because she found that the forum selection clause in the contract between Shaheen and AFS was enforceable and thus the case could not be brought properly in Massachusetts courts. We affirm.
The plaintiff also appealed from the denial of its motion to alter or amend the judgment. As no argument is raised on this issue, we deem the issue waived. Mass.R.A.P. 16(a)(4), 367 Mass. 921 (1975).
Factual background. Shaheen entered into licensing and sales agreements (LSA) with AFS's predecessor, Sales Partner Systems, Inc. (SPS) in 1996 and 2004 regarding Shaheen's license of SPS's 'SPS Professional' software. The 2004 LSA included a forum selection clause which relegated any lawsuits regarding the LSA to the Circuit Court of the Ninth Judicial Circuit, in Orange County, Florida, or the United States District Court in Orlando. The 2004 LSA also contained a provision which only allowed modifications 'by a written agreement signed by [Shaheen] and [Foodservice Ventures, L.C., doing business as SPS].'
The 2004 LSA was technically between Shaheen and Foodservice Ventures, L.C., doing business as Sales Partner Systems. Shaheen's attempt to create an issue of fact over whether Foodservice Ventures and SPS are one and the same is based on nothing more than speculation. See Somers v. Converged Access, Inc., 454 Mass. 582, 597 (2009).
In October 2007, AFS notified Shaheen that it had acquired SPS. As part of that acquisition, AFS assumed all rights under SPS's existing customer contracts. Subsequently, AFS announced that it would be phasing out SPS Professional and replacing it with a new product, 'Order Management Software' (OMS). Shaheen ultimately decided to license OMS. The parties signed a sales quotation or sales quote for OMS on June 9, 2008. This single page document contained the statement at the heart of the present litigation: 'This [q]uote is part of the Software Licensing Agreement between your [c]ompany and AFS.' Shaheen did not sign any other documents regarding OMS.
AFS has a document called the 'Software License, Services, and Maintenance Agreement,' which was not used in the licensing of OMS to Shaheen and which Shaheen never saw prior to the commencement of litigation.
Shaheen alleges that OMS was materially deficient in a number of ways, that AFS misrepresented certain facts regarding OMS, and that AFS did not provide adequate servicing for OMS. These issues are the basis of the present litigation, which began on April 16, 2010. AFS moved for summary judgment on the basis of the forum selection clause contained in the 2004 LSA. Summary judgment was granted on January 5, 2011 and Shaheen appealed.
Discussion. 1. Incorporation of the forum selection clause. Unless the language of a contract is ambiguous, its terms are construed in their usual and ordinary sense, without resort to extrinsic evidence. General Convention of New Jerusalem in the United States of America, Inc. v. MacKenzie, 449 Mass. 832, 835 (2007). Shaheen argues that the phrase 'Software Licensing Agreement between your [c]ompany and AFS' is ambiguous because there was no document specifically titled 'Software Licensing Agreement' between Shaheen and AFS. However, there was no other contract between the parties besides the 2004 LSA to which 'Software Licensing Agreement' could have referred. Shaheen's argument that this phrase could have referred to another contract that Shaheen had on file, such as the 'Software License, Services, and Maintenance Agreement,' is unsupported by any evidence. Shaheen had never seen this document, let alone signed it, prior to the commencement of litigation.
Shaheen also argues that the phrase 'between your [c]ompany and AFS' is ambiguous because the 2004 LSA was between Shaheen and Foodservice Ventures, L.C., not Shaheen and AFS. However, as noted in footnote 1, supra, the only logical inference on the record is that Foodservice Ventures is the same entity as SPS. Since AFS assumed all rights under SPS's existing customer contracts, the 2004 LSA was, in effect, a contract between Shaheen and AFS. Thus, the relevant language in the sales quote unambiguously incorporated the terms of the 2004 LSA, including the forum selection clause.
Shaheen's argument that the affidavit of AFS's chief executive officer indicating that AFS assumed all rights under SPS's existing customer contracts should be disregarded is without merit. See, e.g., Ecclesiastes 3:1, Inc. v. Cambridge Sav. Bank, 10 Mass. App. Ct. 377, 380-381 (1980).
2. 2004 LSA modification prohibition. Shaheen also argues that the 2004 LSA is unenforceable in the present case because the sales quote only bears Shaheen's signature and thus constitutes a forbidden material modification of the 2004 LSA without the signature of both parties to that agreement. Under Massachusetts law, a 'signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded. . . .' G. L. c. 106, § 2-209(2). The term 'signed' is defined to 'include[] any symbol executed or adopted by a party with present intention to authenticate a writing.' G. L. c. 106, § 1-201(39). Such a signature 'may be on any part of the document and in appropriate cases may be found in a billhead or letterhead.' G. L. c. 106, § 1-201(39), Uniform Commercial Code comment no. 39 (West 1999). Even assuming that the sales quote is properly characterized as a modification of the 2004 LSA, it bears the signature of a representative of Shaheen and the AFS logo in the letterhead. As such, under G. L. c. 106, § 1-201, it was signed by both parties and does not run afoul of the 2004 LSA's modification provision.
3. Enforceability of forum selection clause. Finally, Shaheen alleges that the forum selection clause is unenforceable because it would not be 'fair and reasonable' to do so. See Baby Furniture Warehouse Store, Inc. v. Meubles D & F Ltée., 75 Mass. App. Ct. 27, 32 (2009). To succeed on such a claim, Shaheen must show that a trial held in the contractual forum will be so difficult and inconvenient that it will be deprived of its day in court. Cambridge Biotech Corp. v. Pasteur Sanofi Diagnosticis, 433 Mass. 122, 130 (2000). Shaheen first argues that Florida is an inappropriate forum because neither party has a connection with Florida. AFS, however, has substantial contacts with Florida, in that it has an office there. Thus, the forum selection clause is fully enforceable.
Simply because the Florida courts have already dismissed a case which AFS brought against Shaheen there for lack of personal jurisdiction over Shaheen has nothing to do with whether Shaheen could bring a case against AFS in Florida. The dismissal was without prejudice. Moreover, the pertinent question will be simply whether Florida had sufficient contacts to exercise personal jurisdiction over AFS. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985).
--------
Judgment affirmed.
Order denying motion to alter or amend the judgment affirmed.
By the Court (Trainor, Milkey & Agnes, JJ.),