The circuit court also considered Compass Environmental, which is another case involving an oral subcontract and a major construction project. Compass Environmental, Inc. v. Polu Kai Services, L.L.C., 379 Ill. App. 3d 549, 882 N.E.2d 1149 (2008). In the aftermath of Hurricane Katrina, a company headquartered in Illinois was retained as a subcontractor to install government-supplied sheeting and temporary roofs on Louisiana residences that were damaged in the storm.
"Illinois courts have not accepted the federal law trend of enforcing forum selection clauses in contracts involving unsophisticated consumers in small transactions in the marketplace without any real opportunity to consider the acceptance of a forum selection clause." Compass Environmental, Inc. v. Polu Kai Services, LLC, 379 Ill. App. 3d 549, 557 (1st Dist. 2008) (internal citations omitted); see also Mellon First United Leasing v. Hansen, 301 Ill. App. 3d 1041, 1046 (2nd Dist. 1998) (finding forum selection clause unenforceable where "it [did] not appear that the clause was reached through arm's-length negotiation between experienced business persons of the same stature" and the claim at stake was "small"). C. Present Case
DKSchrock attached copies of the 9 unpaid invoices to its second amended complaint. None of these invoices contained the signature of any agent of Peoria builders, either in the "comments" box or anywhere else on the invoices. ¶ 7 In support of its claim for attorney's fees, DKSchrock relied upon Compass Environmental, Inc. v. Polu Kai Services, L.L.C., 379 Ill. App. 3d 549 (2008), in which our appellate court held that a subcontractor's course of conduct after receiving a written purchase order sent by a contractor indicated that the subcontractor had assented to the terms and conditions contained in the purchase order. Peoria Builders moved to strike DKSchrock's claim for attorney's fees.
Indeed, because UPG does not dispute it received the venue selection clause as part of the Terms and Conditions of the quotation, UPG accepted the terms through its issuance of a Purchase Order and initial repayments to Serac. See Compass Envtl., Inc. v. Polu Kai Servs., LLC, 379 Ill. App. 3d 549, 554, 882 N.E.2d 1149, 1155-56 (1st Dist. 2008) (finding seller accepted the terms and conditions attached to a purchase order, including a forum selection clause, when it began performance under the contract); see also Roberts & Schaefer Co., 99 F.3d at 252 (finding forum selection clause in General Notes and Conditions attached to purchase order was part of the contract based on offeree's performance under the contract despite documents being unsigned). If UPG wished to exclude the forum selection clause from its contract with Serac, it should have further inquired about the forum selection clause, issued a Purchase Order explicitly disclaiming the forum selection clause, or refused to perform under the contract until the terms were clarified.
However, when a party performs according to the terms of a purchase order, that performance operates as an acceptance of the terms of the purchase order. See, e.g. Roberts and Shaefer Co. v. Merit Contracting, Inc., 99 F.3d 248, 252-53 (7th Cir. 1996); Compass Environmental, Inc. v. Polu Kai Services, L.C.C., 882 N.E.2d 1149, 1155 (Ill.App.Ct. 2008). Furthermore, a party may be bound by terms of a contract it did not negotiate or read. Ridgeway Construction Co., Inc. v. American Nat. Bank Trust Co. of Chicago, 563 N.E.2d 986, 990 (Ill.App.Ct. 1990).
To determine the reasonableness of a forum-selection clause, the court should consider: (1) the law that governs the formation and construction of the contract, (2) the residency of the parties, (3) the place of execution and/or performance of the contract, (4) the location of the parties and their witnesses, (5) the convenience to the parties of any particular location, and (6) whether the clause was equally bargained for." ( Compass Environmental, Inc. v. Polu Kai Services, L.L.C. (2008) 379 Ill.App.3d 549, 555, 318 Ill.Dec. 26, 882 N.E.2d 1149, 1156 ( Compass ).) In California, however, "[t]here is a difference of opinion as to what factors should be considered when deciding whether to uphold a forum selection provision in a contract.
"Illinois limits general jurisdiction over nonresidents to instances in which the nonresident was present and doing business in the forum." Compass Environmental, Inc. v. Polu Kai Services, L.L.C., 379 Ill. App. 3d 549, 558 (2008). The "doing business" standard is "very high" and requires the nonresident corporation's business activity in Illinois to be carried on, not casually or occasionally, but with a fair measure of permanence and continuity. Rosier, 367 Ill. App. 3d at 562.
Still, a forum selection clause is prima facie valid and should be enforced unless a party shows that enforcement would be unreasonable and "trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court." Compass Envtl., Inc. v. Polu Kai Servs., 379 Ill. App. 3d 549, 554-55, 882 N.E.2d 1149, 1156 (1st Dist. 2008) (quoting Calanca v. D & S Mfg. Co., 157 Ill. App. 3d 85, 87-88, 510 N.E.2d 21, 23 (1st Dist. 1987)).
Still, a forum selection clause is prima facie valid and should be enforced unless a party shows that enforcement would be unreasonable and "trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court." Compass Envtl., Inc. v. Polu Kai Servs., 379 Ill. App. 3d 549, 554-55, 882 N.E.2d 1149, 1156 (1st Dist. 2008) (quoting Calanca v. D & S Mfg. Co., 157 Ill. App. 3d 85, 87-88, 510 N.E.2d 21, 23 (1st Dist. 1987)). There is no indication that Defendants here did not freely enter into the Franchise Agreement and the Guaranty, or that they were unaware of the section 17.3.6 of the Franchise Agreement, paragraph 2 of the Addendum, or the obligations of the Guaranty.
This conclusion is supported by the seller's signature line at the bottom of the terms and conditions. Even drawing all inferences in Medline's favor, the facts alleged in the complaint do not support the inference that the terms and conditions were part of Medline's offer to purchase goods from Ram. Cf. Compass Envtl., Inc. v. Polu Kai Servs., LLC, 882 N.E.2d 1149, 1156, 379 Ill.App.3d 549, 318 Ill.Dec. 26 (2008) (subcontractor assented to terms and conditions referred to, but not included in, in service contract when it continued to perform after receiving a copy of the terms and conditions). It follows that the terms and conditions were not part of Medline and Ram's contract for sale of surgical mesh. See Vill. of Woodridge v. Bohnen Int'l, Inc., 377 N.E.2d 121, 122–23, 60 Ill.App.3d 692, 17 Ill.Dec. 931 (1978) (“A contract for the sale of goods may be made in any manner sufficient to show agreement ... but there must be a meeting of the minds.”). Medline's claim for breach of the duty to defend will be dismissed for failure to state a claim.