Opinion
NUMBER 2015 CA 1426
04-15-2016
SIEGEN LANE INVESTMENTS, L.L.C. v. CORPORATE LODGING CONSULTANTS, INC. d/b/a CLC LODGING
Charles A. Schutte, Jr. Baton Rouge, LA Counsel for Plaintiff-Appellant Siegen Lane Investments, L.L.C. Jonathan C. Benda Susan W. Furr Betty B. Uzee Baton Rouge, LA Counsel for Defendant-Appellee Corporate Lodging Consultants, Inc. d/b/a CLC Lodging
NOT DESIGNATED FOR PUBLICATION Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, Louisiana
Docket Number C636771 Honorable Wilson E. Fields, Judge Presiding Charles A. Schutte, Jr.
Baton Rouge, LA Counsel for Plaintiff-Appellant
Siegen Lane Investments, L.L.C. Jonathan C. Benda
Susan W. Furr
Betty B. Uzee
Baton Rouge, LA Counsel for Defendant-Appellee
Corporate Lodging Consultants, Inc.
d/b/a CLC Lodging BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WHIPPLE, C.J.
Plaintiff, Siegen Lane Investments, L.L.C. ("Siegen"), appeals a judgment rendered in favor of defendant, Corporate Lodging Consultants, Inc. d/b/a CLC Lodging ("CLC"), sustaining CLC's declinatory exception of improper venue. Siegen contends that the agreements it executed with CLC are unenforceable and that accordingly, the forum-selection clause contained in the agreements, establishing Sedgwick County, Kansas, as the proper venue, is likewise unenforceable. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
At all pertinent times, Siegen owned and operated the Microtel Inn & Suites ("Microtel") located in Scott, Louisiana. Beginning in 2010 and continuing through 2014, CLC, a hotel broker, entered into several bid agreements ("agreements") with Siegen, whereby Siegen agreed to provide reduced-rate rooms to companies registered with CLC. These respective companies' employees were issued CLC cards to present to Siegen as payment for the discounted rooms. Pursuant to these agreements, Siegen agreed to invoice CLC for the reduced-rate rooms and, in return, CLC agreed to remit the amounts it collected from its member companies to Siegen in satisfaction of the invoices. In each agreement, the following forum-selection clause was included: "Any action or proceeding over billings, amounts due or unpaid balances between [Microtel] and [CLC] must be brought in courts of Sedgwick County, Kansas."
On January 29, 2015, Siegen filed suit in East Baton Rouge Parish, naming CLC as a defendant and asserting that it failed to pay for "numerous lodging nights" from 2010 to 2014, resulting in an alleged unpaid balance due of $61,026.08. On March 13, 2015, CLC filed a declinatory exception of improper venue, wherein it sought dismissal of Siegen's claims, without prejudice to Siegen's right to refile in Sedgwick County, Kansas, based on the agreements' forum-selection clause. CLC contended that based on the forum-selection clause in the agreements, Sedgwick County, Kansas, is the exclusive venue for any litigation between it and Siegen. In opposition, Siegen argued that because the agreements do not name Siegen as a party, but, instead show Microtel Inn & Suites as the party to the agreements, and do not authorize any representative to sign on Siegen's behalf, the agreements are unenforceable as against Siegen.
On April 27, 2015, the trial court, after hearing oral arguments, held that the forum-selection clause contained in the agreements was enforceable and, therefore, granted CLC's declinatory exception of improper venue, finding venue to be proper in Kansas. A judgment reflecting this ruling was signed on June 5, 2015.
Siegen then filed the instant appeal, assigning the following as error:
1. The trial court erred in finding that the Bid Agreements between [CLC] and [Microtel] were valid and enforceable acts under private signature.
2. The trial court erred in finding that [the] Bid Agreements were admissible without a proper foundation or authentication.
3. The trial court failed to recognize that Siegen has no contacts whatsoever with Kansas and there is no voluntary submission to personal jurisdiction in the Bid Agreements; and therefore, enforcement of the forum selection clause violates Siegen's constitutional rights to due process.
DISCUSSION
Siegen's Judicial Confession of the Forum-Selection Clause
Siegen's arguments on appeal are essentially founded on Siegen's claim that it did not consent to the agreements at issue, and that the forum- selection clause is unenforceable against it. Indeed, Siegen contends that it was unaware of the agreements' existence until the instant exception was filed However, on review, we find these arguments are contrary to the assertions made by Siegen in its petition for damages.
In an affidavit attached to Siegen's opposition to CLC's declinatory exception of improper venue, Ashwin B. Sura, manager for Siegen, attests that he "was not aware of and did not have copies of the three contracts filed by [CLC] ..." and "was never aware of the forum[-]selection clause in the contracts and did not consent or agree on behalf of Siegen to select Sedgwick County, Kansas, as a proper venue." --------
Herein, Siegen's petition for damages specifically states that "Siegen owned and operated [Microtel] located at 301 Ambassador Caffery Parkway [in] Scott, Louisiana[,]" that "Siegen entered into a contract with [CLC] to accept the card issued by [CLC] to its members in payment for lodging at the Microtel Inn[,]" that "[CLC] was obligated under the agreement to pay for the lodging of its members using the card issued by [CLC] [...and that...] [i]n consideration of the agreement with [CLC], its [CLC's] members were given reduced room rates at [Microtel]." Furthermore, Siegen admits that it conducts business as Microtel, and, more importantly, called itself as such, stating: "During the period from 2010 through 2014, [Microtel] accepted the [CLC] card presented by numerous members of [CLC] in payment for lodging at [Microtel]." (Emphasis added). Thus, the threshold issue is whether Siegen has judicially confessed to the existence of the agreements, such that it is bound by the provisions therein.
A judicial confession is "a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it." LSA-C.C. art. 1853. The well-settled jurisprudence establishes that an admission by a party in a pleading constitutes a judicial confession and is full proof against the party making it. A judicial confession has the effect of waiving evidence as to the subject of the admission. A declaration made by a party's attorney or mandatary has the same effect as one made by the party himself. LSA-C.C. art. 1853, Comment (b); C.T. Traina, Inc. v. Sunshine Plaza, Inc., 2003-1003 (La. 12/3/03), 861 So. 2d 156, 159 (per curiam); Wells Fargo Bank, N.A. v. Settoon, 2012-1980 (La. App. 1st Cir. 6/7/13), 120 So. 3d 757, 762. A judicial confession is indivisible and it may be revoked only on the ground of error of fact. LSA-C.C. art. 1853.
The record reflects that in its verified petition, Siegen judicially confessed that it entered into an agreement with CLC. Moreover, there is nothing of record to show that prior to the hearing on the venue exception, that Siegen ever attempted to amend or otherwise modify this allegation for error. Because a judicial confession has the effect of waiving evidence relating to the subject of the admission and withdrawing the subject matter of the confession from issue, CLC was not required to offer affirmative proof to demonstrate or establish it had entered into written agreements by which Siegen was bound. See C.T. Traina, Inc., 861 So. 2d at 160. As such, we hold that the trial court did not err in finding Siegen was a party to the agreements and subject to the forum-selection clause contained in the agreements.
CLC's Forum-Selection Clause is Enforceable
Siegen further argues that even if it is subject to the agreements, the forum-selection clause, as contained in the agreements, is nonetheless unenforceable. Forum-selection clauses, or choice-of-exclusive-forum clauses, are prima facie valid, legal, and binding in Louisiana, and a party seeking to set aside such a provision bears a heavy burden of proof. As this court has previously recognized, such a clause is to be enforced unless the resisting party clearly proves that enforcement of the forum-selection clause would be unreasonable and unjust, or that the clause arises from fraud or overreaching, or that enforcement would contravene a strong public policy of the forum where the suit is brought. Rising Resources Control Inc. v. KIE Commodities and Finance, L.L.C., 2011-1026 (La. App. 1st Cir. 12/21/11), 80 So. 3d 1217, 1219, writ denied, 2012-0658 (La. 4/27/12), 86 So. 3d 632.
In determining whether enforcement of a forum-selection clause would be unreasonable and unjust, courts generally require the party seeking to avoid its enforcement to bear the heavy burden of showing that the chosen forum is seriously inconvenient for the trial of the action. Since the claimed inconvenience is generally foreseeable at the time of contracting, it is incumbent on the party seeking to escape its contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that it will for all practical purposes, be deprived of its day in court. Absent such a showing, there is no basis for concluding that it would be unfair, unjust, or unreasonable to hold the party to its bargain. Mere inconvenience or additional expense do not suffice as proof of hardship since these are burdens that were allocated by the parties' private bargain. Id. at 1220; see also Vallejo Enterprise, LLC v. Boulder Image, Inc., 2005-2649 (La. App. 1st Cir. 11/3/06), 950 So. 2d 832, 836-37.
Moreover, this court has previously enforced out-of-state forum-selection clauses in cases where the Louisiana forum had significantly more involvement than in the instant dispute. In Rising Resources Control, Inc., we affirmed a trial court's granting of an improper venue exception based on a forum-selection clause which called for a Michigan venue, despite the fact that the negotiations leading up to the contract took place in St. Mary Parish, the contract at issue was signed in St. Mary Parish, both plaintiff and defendant had offices in St. Mary Parish, and all of the scrap metal that was to be shipped in accordance with the parties' contract was located in either St. Mary or Terrebonne Parishes. Further, none of the individual parties or witnesses had any connection with Michigan, except for the defendant's main office there. Rising Resources Control, Inc., 80 So. 3d at 1219-21.
Herein, Siegen presented no evidence in the trial court to demonstrate that the designated forum, Sedgwick County, Kansas, poses any serious inconvenience to it, or that it would be "deprived of its day in court," based upon the forum-selection clause. See Vallejo, 950 So. 2d at 837. Moreover, the only apparent connection Siegen has with East Baton Rouge Parish is the registration of its domicile with the Secretary of State. Notably, the hotel at issue is located in Lafayette Parish, where the agreements were faxed from following their execution. As such, we are unable to find that the forum-selection clause was shown to be unjust or unreasonable.
For the forum-selection clause to be unenforceable on the grounds of fraud or overreaching, the party must show that the inclusion of the clause in the contract was the product of fraud or coercion. Id. at 835-36. Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. LSA-C.C. art. 1953. Error induced by fraud need not concern the cause of the obligation to vitiate consent, but it must concern a circumstance that has substantially influenced that consent. LSA-C.C. art. 1955.
Other than Siegen's self-serving statements that it did not specifically consent to or authorize the signing of the agreements with CLC, Siegen has offered no proof of fraud or overreaching. Furthermore, as noted above, Siegen judicially confessed that it conducts business as Microtel Inn & Suites, and that this entity entered into the agreements with CLC. Therefore, we find that the forum-selection clause is not unenforceable on grounds of fraud or overreaching.
Lastly, concerning issues of this state's public policy regarding forum-selection clauses, this court stated in Vallejo:
Although the public policy of this state does militate against the use of forum-selection clauses in employment contracts, [LSA-JR.S. 23:921(A)(2), and in consumer transactions and [in] cases of unfair trade practices, [LSA-JR.S. 51:1407, Vallejo has pointed to no authority supporting a proposition that commercially sophisticated parties may not limit their disputes to any forum of their choosing.Vallejo, 950 So. 2d at 837. Therefore, this court, finding no contravention of public policy, affirmed the trial court's grant of an exception of improper venue in a suit brought by a Louisiana distributor against an Arizona manufacturer, wherein a choice-of-law provision required that any suits be instituted in the state of Arizona. Id at 838. Likewise, Siegen has failed to show that enforcing the terms of the parties' forum-selection clause would contravene a strong public policy.
As such, we conclude the trial court did not err in enforcing the forum-selection clause and in granting CLC's declinatory exception of improper venue. Louisiana Code of Civil Procedure article 932 sets forth the effect of sustaining a declinatory exception:
A. When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court; if the court finds, on sustaining the objection that service of citation on the defendant was not requested timely, it may either dismiss the action as to that defendant without prejudice or, on the additional finding that service could not have been timely requested, order that service be effected within a specified time.
B. If the grounds of the objection cannot be so removed, of the plaintiff fails to comply with an order requiring such removal, the action, claim, demand, issue, or theory subject to the exception shall be dismissed; except that if an action has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice.Because the declinatory exception raising the objection of improper venue was based on the forum-selection clause in the parties' agreement, amending the petition cannot remove the grounds of objection. Accordingly, the trial court's dismissal, without prejudice, was appropriate. See Rising Resources Control, Inc., 80 So. 3d at 1221.
CONCLUSION
For the above and foregoing reasons, we find no error in the trial court's findings, namely, that Siegen entered into various agreements with CLC, that each agreement contained a forum-selection clause establishing Sedgwick County, Kansas, as the proper venue, and that the forum-selection clauses are enforceable. Accordingly, we hereby affirm the trial court's June 5, 2015 judgment, dismissing Siegen's claims against CLC without prejudice to Siegen's right to refile in Sedgwick County, Kansas. All costs of this appeal are assessed to plaintiff-appellant, Siegen Lane Investments, L.L.C.
AFFIRMED.