Inc. v. Mewhinney, 2019 COA 129

Avicanna Inc., an Ontario-based Canadian corporation, contracted with Colorado parties in an asset purchase agreement and related independent contractor agreements that included a forum selection and choice-of-law clause designating the courts of Ontario and Ontario law.
Avicanna sued several Colorado counterparties (including Mewhinney, Garcia, and Laughing Dog Group) in Pitkin County, Colorado alleging breach of contract.
The Mewhinney defendants raised the forum selection clause late (first argued in a reply), then moved to enforce it after the court invited briefing on the issue; the clause itself states that "Each Party irrevocably attorns and submits to the exclusive jurisdiction of the courts of Ontario."
The district court concluded the clause was unambiguous, applied to each party (not solely to Avicanna), and therefore Avicanna could not unilaterally waive it; the court dismissed the Colorado action without prejudice.
The district court also found the Mewhinney defendants had not waived their right to enforce the clause despite their late assertion, because Avicanna suffered no prejudice from the delay.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Avicanna could unilaterally waive the forum selection clause	Avicanna: clause was drafted for its sole benefit (only party from Ontario), so it could waive enforcement and sue in Colorado	Mewhinney: clause binds "Each Party," is mutual, and cannot be unilaterally waived	Court: Clause applies to each party; Avicanna failed to show it was sole beneficiary, so it could not unilaterally waive the clause
Whether defendants waived right to enforce the forum clause by raising it late	Avicanna: defendants’ delay and prior litigation conduct constituted waiver and caused prejudice	Mewhinney: delay was an oversight; their limited substantive participation did not amount to an intentional relinquishment	Court: No waiver; defendants’ limited engagement and lack of prejudice to Avicanna mean no waiver
Whether forum clause is enforceable / should be applied now	Avicanna: argued clause should not preclude Colorado suit	Mewhinney: clause is unambiguous and enforceable, requiring dismissal	Court: Enforceable; dismissed action without prejudice and sent dispute to Ontario courts
Appellate fees request	Avicanna: N/A (opposed)	Mewhinney: requested appellate attorney fees	Court: Denied fee request — Avicanna’s appeal was nonfrivolous and reasonably argued

Adams Reload Co. v. Int’l Profit Assocs., Inc., 143 P.3d 1056 (Colo. App. 2006) (standard of review for forum clause application)
ABC Mobile Sys., Inc. v. Harvey, 701 P.2d 137 (Colo. App. 1985) (party asserting forum clause unenforceability bears burden; mere resident-defendant status insufficient)
USI Props. E., Inc. v. Simpson, 938 P.2d 168 (Colo. 1997) (contract interpretation: give effect to parties’ intent and plain language)
City of Aurora v. N. Colo. Water Conservancy Dist., 236 P.3d 1222 (Colo. 2010) (look first to instrument language when discerning intent)
Edge Telecom, Inc. v. Sterling Bank, 143 P.3d 1155 (Colo. App. 2006) (forum selection clauses enforced unless unfair or unreasonable)
Vessels Oil & Gas Co. v. Coastal Ref. & Mktg., Inc., 764 P.2d 391 (Colo. App. 1988) (delay and participation in litigation alone do not necessarily constitute waiver of forum clause)
Fravert v. Fesler, 53 P. 288 (Colo. App. 1898) (a party may waive a contract condition inserted for its benefit)
Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2d 1310 (Colo. 1984) (contracts must be harmonized to give effect to all provisions)
Open Text Corp. v. Grimes, 262 F. Supp. 3d 278 (D. Md. 2017) (distinguishing clauses that bind only one signatory from bilateral clauses binding "each party")