Russo v. Barger, 366 P.3d 577

Russo purchased a Mexican condominium via a purchase contract containing a forum-selection clause designating Hermosillo, Sonora, Mexico for disputes; closing was delayed and deposits ($136,150) were not returned.
Worldwide (developer) purportedly obtained a Mexican court ruling related to force majeure; Russo’s Mexican counsel found no such ruling.
Russo sued in Maricopa County (2009) against Worldwide, Abigail Properties, Las Palomas Resort, and Appellees (the Bargers and Mishkins); Appellees answered and asserted multiple defenses including the forum-selection clause.
Over the next three years Appellees jointly participated extensively in litigation (answers, status conferences, discovery, multiple summary-judgment motions, depositions, pretrial conferences) but did not move to enforce the forum clause until August 2012 after losing a statute-of-limitations defense.
The superior court granted Appellees’ motion to dismiss on forum-clause grounds and awarded fees; the Court of Appeals vacated, holding Appellees waived reliance on the forum-selection clause by their prolonged participation, and remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Appellees waived the forum-selection clause by litigating in Arizona for >3 years before seeking dismissal	Russo: Appellees’ extensive, substantive participation (discovery, motions, depositions, pretrial activity) is conduct inconsistent with asserting the forum clause and therefore constitutes waiver	Appellees: Preserving the clause in their answer preserved the defense; prior participation did not amount to a waiver, and Taylor controls	Court: Waiver by conduct — participation was substantial and inconsistent with prompt enforcement of the clause; dismissal vacated and case remanded

Societe Jean Nicolas et Fils v. Mousseux, 123 Ariz. 59 (1979) (forum-selection clauses that are fairly bargained for and not fraudulent are enforceable if reasonable)
City of Phoenix v. Fields, 219 Ariz. 568 (2009) (defenses preserved in an answer can be waived by later conduct; substantial litigation participation can effect waiver)
Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974) (agreements to arbitrate before a tribunal are a specialized forum-selection mechanism)
Taylor v. Fireman’s Fund Ins. Co. of Canada, 161 Ariz. 432 (App. 1989) (preserving a forum objection in pleadings did not constitute waiver where the conduct did not amount to a general appearance requesting affirmative relief)
Grosvenor Holdings L.C. v. City of Peoria, 195 Ariz. 137 (App. 1999) (appellate review of legal rulings based on undisputed facts is de novo)