CHRISTOPHER L. TUCKER, Plaintiff/Appellant, v. THE COCHRAN FIRM-CRIMINAL DEFENSE BIRMINGHAM L.L.C., a foreign limited liability company, Defendant/Appellee.
Case Number: 111181
THE SUPREME COURT OF THE STATE OF OKLAHOMA
Decided: 12/16/2014
2014 OK 112 | 341 P.3d 673
¶0 A client brought an action in the District Court of Oklahoma County against the law firm which he had hired to represent him in a criminal case. The Honorable Lisa Davis, District Judge, granted the law firm‘s amended motion to dismiss because of a forum-selection clause in the parties’ agreement which provided that venue shall be in Los Angeles, California. Client appealed and the Court of Civil Appeals concluded that the forum-selection clause should not be enforced, reversed the trial court‘s order dismissing his claims, and remanded the matter for further proceedings in the District Court. The law firm filed a petition for certiorari in this Court for our review of the opinion by the Court of Civil Appeals. We hold: (1) When a parties’ agreement has an interstate forum-selection clause and a party seeks its judicial enforcement in an Oklahoma District Court by seeking dismissal of the Oklahoma proceeding, then the procedure for its enforcement is by a motion pursuant to
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT IS REVERSED; CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION
Blake Sonne, Sonne Law Firm, P.L.C., Norman, Oklahoma, for Plaintiff/Appellant.
A. Scott McDaniel, McDaniel Acord, P.L.L.C., Tulsa, Oklahoma, for Defendant/Appellee.
EDMONDSON, J.
¶1 This case involves a trial court‘s dismissal of an action based upon its determination that the action was not brought in the forum that was specified in the attorney-client written agreement. We hold that a party should utilize the
¶2 The City of Oklahoma City charged Christopher Tucker (Tucker) with municipal misdemeanor offenses of interfering with official process, obstructing an officer, and failing to obey lawful commands of an officer. On August 9, 2010, Tucker signed an agreement for the Cochran Firm-Criminal Defense, Birmingham, L.L.C., (Cochran Firm), to provide him with legal representation for his scheduled trial in October of 2010. Tucker was found guilty of a municipal charge as a result of the trial proceedings.
¶3 Tucker filed an action in the District Court of Oklahoma County against the Cochran Firm alleging that the Case Manager for the law firm, John Pride, had misrepresented the nature of the services that the law firm would provide and that the Cochran Firm had (1) committed actual and constructive fraud, (2) committed acts of legal malpractice and negligence, (3) violated the Oklahoma Consumer Protection Act (
¶4 Tucker alleged that the Case Manager informed him that the law firm would engage in a four to five-day trial to defend Tucker, the law firm would provide an experienced trial lawyer with twenty to thirty years of experience to represent him at trial, and that the law firm “had attorneys who were licensed to practice in Oklahoma and who would in fact defend the Plaintiff in trial . . . .” He alleged that these statements were untrue and were made to fraudulently induce him to enter into an agreement for legal services and to pay “outrageous fees.” The law firm required Tucker to pay a non-refundable retainer of $13,690.00 for legal representation for the trial. Tucker had paid to the law firm $12,200.00 in installments by the time his trial occurred.
¶5 He also alleged that a few days after he signed the agreement, the Cochran Firm informed him that Josh McKeown, an attorney with the firm, would represent him at the trial. He further alleged that on the morning of his trial he met for the first time the attorney who actually represented him at his trial, an Oklahoma lawyer, E. W. Childers. Tucker alleged that during the trial McKeown was in the courtroom seated in the area for the public and “whispered a couple of times to Childers.” He also alleged that the Cochran Firm paid Childers $500.00 to represent him at his trial which lasted approximately forty minutes.
¶6 Tucker alleged that McKeown had not sought to be admitted pro hac vice for the trial. He also alleged that the Cochran Firm had (1) failed to request a court reporter for preparation of a trial transcript for an appeal, (2) failed to conduct any discovery or otherwise request documents and evidence from the City of Oklahoma City, (3) failed to secure and subpoena the police vehicle videos and videos from nearby businesses, (4) failed to obtain information concerning complaints and disciplinary actions concerning the police officers involved, (5) failed to obtain character witnesses for Tucker, (6) failed to prepare witnesses for the trial, (7) failed to obtain an expert witness for Tucker as promised by the Cochran Firm, (8) failed to submit a trial brief on a specific issue, (9) failed to object to the identification of evidence, (10) failed to move to suppress evidence based on an officer‘s lack of probable cause or reasonable suspicion to stop, (11) failed to seek admission pro hac vice, and (12) failed to adequately prepare with local counsel.
¶7 The Cochran Firm filed a motion to dismiss Tucker‘s petition. The law firm‘s motion relied on
¶9 After filing the amended motion to dismiss, the trial court determined that the forum-selection clause in the retainer agreement should be judicially enforced. The trial court also determined that enforcement of the forum-selection clause would not be unfair or unreasonable under the circumstances. The trial court dismissed the action for improper venue.
¶10 Tucker appealed and the Court of Civil Appeals, in an opinion released for publication, reversed the trial court and remanded the cause for further proceedings. The appellate court concluded that the Retention Agreement specified who must sign the agreement on behalf of the law firm, and that this was not done. The court concluded that in the absence of a written retention agreement, the parties had an oral retention agreement, and that the trial court had failed to determine whether there existed a valid forum-selection agreement between the parties.3 The court appears to have concluded that a forum-selection clause would violate public policy if the clause required obligations created by a lawyer-client relationship in an Oklahoma legal proceeding to be governed by the law of another state.
¶11 The Cochran Firm filed a petition for certiorari in this Court and argued that (1) the appellate court should have applied an abuse-of-discretion standard instead of using a de novo review, (2) the burden of persuasion is on one attacking a forum-selection clause and the record shows that Tucker failed this burden, (3) a client-attorney fiduciary relationship does not apply when fees are negotiated, (4) the appellate court improperly adjudicated disputed questions of fact, and (5) the appellate court improperly based public policy considerations on allegations of fact where those facts occurred after the contract negotiation.
¶12 The Cochran Firm relies upon various opinions of the Court of Civil Appeals for the proposition that a forum-selection clause should be enforced and its argument on the nature of Tucker‘s burden in the trial court. Tucker relies on an opinion from the Court of Civil Appeals for the concept that a “reasonableness test” should be used when a court decides whether to enforce a forum-selection clause. Our Court of Civil Appeals has addressed whether forum-selection clauses in written agreements are enforceable in various circumstances.4 Although they constitute persuasive authority only and are not precedential because their publication was not pursuant to orders of the Supreme Court, they do serve as examples of courts in Oklahoma enforcing forum-selection clauses in Oklahoma since 1989.5 This Court has examined forum-selection clauses in the contexts of arbitration and issue preclusion,6 but the issues before us today have not been previously addressed by this Court.
II.
¶14 The first issue raised on certiorari involves the allocation of the burdens of pleading, persuasion, and proof; and this necessarily raises the proper procedure for a party invoking a forum-selection clause. In the last twenty years, when a mandatory7 forum-selection clause specified an exclusive forum for both jurisdiction and venue8 the United States Court of Appeals for the Tenth Circuit allowed a defendant to judicially enforce that clause by a motion to dismiss for improper venue pursuant to
¶15 The Court indicated that federal venue provisions “alone define whether venue exists in a given forum” and a parties’ agreement may not make venue improper in a forum where a federal venue statute makes venue proper.12 For this reason a Rule 12(b)(3) motion to dismiss for improper venue would not be available where venue was proper pursuant to federal statute even though the parties had previously agreed to a different forum: ” . . . a forum-selection clause does not render venue in a court ‘wrong’ or ‘improper’ within the meaning of [28 U.S.C.] § 1406(a) or Rule 12(b)(3) . . . .”13
¶16 Oklahoma‘s
¶18 In Atlantic Marine Construction Co., supra, the U. S. Supreme Court noted that it need not consider application of
¶19 Oklahoma currently has a statute addressing forum non conveniens.
¶21 The Cochran Firm sought dismissal in the trial court. Because this is a dispute on the merits of the cause of action, it may be procedurally presented by either an appropriate § 2012(B)(6) motion challenging the sufficiency of the face of the petition,25 or by a motion for summary judgment seeking a judgment on the merits of a contract-based claim.26 The party that sought to invoke judicial relief based upon an alleged contractual agreement for venue selection is the defendant, the Cochran Firm, when it sought dismissal in the trial court. A burden to present facts, claims and legal arguments falls on the party who asserts an entitlement to the judicial relief sought.27 The Cochran Firm has the burden to file the appropriate § 2012(B)(6) motion to dismiss attacking facial sufficiency of the petition or a motion for summary judgment. Once Cochran‘s initial burden is satisfied, a burden is placed on Tucker to make the appropriate procedural and substantive response, as we now explain.
III.
¶22 A typical dispute involving the judicial doctrine of interstate forum non conveniens is not based upon the parties’ agreement or the merits of a contract and does not involve a
¶23 The High Court identified the parties’ private interests as those including “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.”29 The Court identified the public-interest factors as including “the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law.”30
¶24 In Conoco, Inc. v. Agrico Chemical Co., we cited a 1947 U. S. Supreme Court opinion and a 1954 opinion from this Court, and we explained that we also examine the public and private interests involved in a forum non conveniens dispute.31
The forum non conveniens criteria consider private and public interests. Gulf Oil Corporation v. Gilbert, 330 U.S. at 508. The private interests to be considered include whether the forum 1) is convenient for witnesses, 2) may reach unwilling witnesses by compulsory process, 3) allows a view of the premises, 4) is near the sources of proof, and 5) serves to make trial of the case less burdensome and more convenient. Id. The public interests include the burden of jury duty on the community and the community interest in having local controversies decided at home. Id. Except where the balance of these interests tilts strongly in favor of the defendant, the plaintiff‘s choice of forum should rarely be disturbed. Id. Oklahoma adopted these criteria in applying the doctrine of interstate forum non conveniens. St. Louis-San Francisco Ry. Co. v. Superior Court, at ¶ 23, 276 P.2d at 778.
Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, at ¶ 11, 115 P.3d at 833.32
¶25 In Atlantic Marine Construction Co., supra, the Court stated that a plaintiff‘s choice of venue should be considered when a court adjudicates a forum non conveniens motion.33 The doctrine of forum non conveniens recognizes the convenience of the parties and their interests in selecting and litigating in a particular judicial forum. 34 However, in a circumstance of contract-based venue this interest has been expressed by them when they created an agreement stating their preference for a forum. As noted in Atlantic Marine, “The enforcement of valid forum-selection clauses, bargained for by the parties, protects their legitimate expectations and furthers vital interests of the justice system.”35
¶26 In Conoco, Inc. v. Agrico Chemical Co., supra, this Court relied upon the U. S. Supreme Court‘s opinion in Gulf Oil Corporation v. Gilbert, supra, and stated that “Except where the balance of these [public and private] interests tilts strongly in favor of the defendant, the plaintiff‘s choice of forum should rarely be disturbed.”36 A valid forum-selection clause is one of those instances where a plaintiff‘s choice of a forum at the time of litigation may be disturbed by plaintiff‘s previous contractual choice of a different forum for litigation. In Atlantic Marine Construction Co., supra, the Court stated that when a valid forum-selection clause is present, ” . . . the plaintiff‘s choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted.”37 One reason for this is “the plaintiff has effectively exercised its ‘venue privilege’ before a dispute arises” when the plaintiff and defendant made a valid agreement on the judicial venue of their dispute.38 Because the private interests in selecting a forum for disputes have been determined contractually between the parties, a party challenging the selection is usually left only two choices, challenging the validity of the forum-selection clause or showing that public interest or public policy requires non-enforcement of the clause.
37Atlantic Marine Construction Co., ___ U.S. ___ , 134 S.Ct. 568, 581.
38Atlantic Marine Construction Co., ___ U.S. ___ , 134 S.Ct. 568, 581-582.
39See, e.g., Kelly A. Blair, A Judicial Solution to the Forum-Selection Clause Enforcement Circuit Split: Giving Erie a Second Chance, 46 Ga. L. Rev. 799, 830 (2012), quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974) (” . . . the Court found that an arbitration agreement contained within a larger contract is actually “a specialized kind of forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute.“).
40See, e.g., Intercall Telecommunications, Inc. v. Instant Impact, Inc., 376 F.Supp.2d 155 (D.P.R.2005) (“Courts must distinguish between challenges to the validity of the underlying contract on the one hand, and to the validity of the forum selection clause in particular, on the other. Under the purview of this separability doctrine, a forum selection clause is deemed to be separate from, and independent of, the contract containing it.“)
41Greater Oklahoma City Amusements, Inc. v. Moyer, 1970 OK 213, 477 P.2d 73, 75 (quoting a legal encyclopedia).
42Greater Oklahoma City Amusements, Inc. v. Moyer, 1970 OK 213, 477 P.2d at 75-76.
43In Preston v. Ferrer, 552 U.S. 346, 349, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008), the Court stated that “when parties agree to arbitrate all disputes arising under their contract, questions concerning the validity of the entire contract are to be resolved by the arbitrator in the first instance, . . . .” and this is “distinct from attacks on the validity of the arbitration clause itself . . . .” Nitro-Lift Technologies, L.L.C. v. Howard, 568 U.S. 17, 133 S.Ct. 500, 503, 184 L.Ed.2d 328 (2012). See also Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 70, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010) (noting two types of “validity challenges,” one on the validity of an agreement to arbitrate and one challenging the contract as a whole).
44State ex rel. Wright v. Oklahoma Corp. Comm‘n, 2007 OK 73, ¶ 48, 170 P.3d 1024, 1039.
45
46Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 4, n. 10, 958 P.2d 128, 136.
47
48Sides v. John Cordes, Inc., 1999 OK 36, ¶ 14, 981 P.2d 301, 306 (“A prima facie case is made out by that quantum of proof which, if unexplained or uncontradicted, is sufficient to establish a given fact and to uphold a judgment in favor of the issue which it supports, but which may be refuted by other evidence.“); Beville v. Curry, 2001 OK 1, ¶ 1, 39 P.3d 754 (trial court‘s order granting defendants’ motion for summary judgment was affirmed on appeal because plaintiff failed to refute defendants’ prima facie showing that they were entitled to judgment).
49Cf. Gomes v. Hameed, 2008 OK 3, ¶ 18, 184 P.3d 479, 485 (generally, the question of whether the minds of parties ever met in complete agreement is a question of fact for the finder of fact).
50Kordis v. Kordis, 2001 OK 99, ¶ 13, 37 P.3d 866, 871 (“... the right to a hearing on a motion for summary judgment is governed by Rule 13 and not Rule 4(h)“). See Rule 13,
51The judgment granting dismissal states that “The Court further finds that enforcement of the mandatory forum selection provision would not be unfair or unreasonable under the circumstances.” Journal Entry of Judgment, at p.2.
52Tulsa Indus. Authority v. City of Tulsa, 2014 OK 81, ¶ 13, 336 P.3d 1016, 1019 (“This Court, as an appellate tribunal, does not make first-instance rulings.“).
53Dyke v. Saint Francis Hosp., Inc., 1993 OK 114, 861 P.2d 295, n. 6, 298-299 (“If rules of procedure work as they should in an honest and fair judicial system, they not only permit, but should as nearly as possible guarantee that bona fide complaints be carried to an adjudication on the merits.“).
54Title 15, Section 211 of the Oklahoma Statutes makes unlawful, and thus unenforceable, contracts which are (1) “[c]ontrary to an express provision of law;” (2) “[c]ontrary to the policy of express law, though not expressly prohibited; or” (3) “[o]therwise contrary to good morals.” See Hamilton v. Cash, 1939 OK 255, 91 P.2d 80, 81 (a contract will not be enforced when contrary to the public policy of the State).
55Groendyke Transport, Inc.v. Cook, 1979 OK 59, 594 P.2d 369, 372.
56Atlantic Marine Construction Co., ___ U.S. ___ , 134 S.Ct. 568, 582.
57Norris v. Van Hendel, 1945 OK 249, 163 P.2d 217, 220. See also In re Kaufman, 2001 OK 88, ¶ 18, 37 P.3d 845, 854; (Our power to void a contract as being in contravention of public policy is delicate and undefined. We exercise it only in cases free from doubt.); Horn v. Gibson, 1909 OK 174, ¶ 0, 103 P. 563, 563 (Syllabus by the Court) (The party seeking to void a contract bears the burden of proving that the contract violates public policy.).
58We decline to address whether Tucker‘s allegations of fact are sufficient to put at issue his consent to the forum-selection clause. The issue appears to have been raised by Defendant in its reply to Tucker‘s response when it cited Allis Chalmers Mfg. Co. v. Byers, 1939 OK 115, 88 P.2d 368, for the proposition that one who executes a contract is presumed to have understood its contents. However, because we remand the proceeding we need not address whether any law or facts are a required predicate to apply Allis in a controversy, or its exceptions, or other principles of contract law on this issue.
59First Nat‘l Bank in Durant v. Honey Creek Entertainment Corp., 2002 OK 11, ¶ 12, 54 P.3d 100, 104 (“Fraud vitiates everything it touches, and a contract obtained thereby is voidable. And evidence is always admissible to show that contracts have been fraudulently obtained.“) Cf. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, n.7, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (federal courts sitting in admiralty generally should enforce forum-selection clauses absent a showing that to do so would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching).
60Rogers v. Dell Computer Corp., 2005 OK 51, ¶ 31, 138 P.3d 826, 833.
61St. Louis-San Francisco Ry. Co. v. Superior Court of Creek County, 290 P.2d 118, 120 (“It is apparent that if a trial court should sustain a motion to dismiss on the grounds of forum non conveniens and dismiss the action, the plaintiff could appeal therefrom and thus obtain a review of the trial court‘s action, since such order on the part of the trial court would constitute a final order as defined by
6212 O.S.2011 Ch. 15, App. 1, Okla. Sup. Ct. R. 1.36 states in part: “The Rule 1.36 accelerated procedure will govern appeals from: 1. summary judgments in cases in which the motions were filed under District Court Rule 13 after October 1, 1993; and 2. final orders in cases in which motions to dismiss for failure to state a claim or lack of jurisdiction (of a person or subject matter) under District Court Rule 4 were filed after October 1, 1993.”
63Brooks v. Baltz, 2000 OK 73, ¶ 6, 12 P.3d 467, 469 (“Fundamental fairness cannot be afforded except within a framework of orderly procedure, and that fairness includes giving notice of certain judicial events altering legally cognizable rights.” ).
64See, e.g., Wood v. Mercedes-Benz of Oklahoma City, 2014 OK 68, ¶ 4, 336 P.3d 457, 459 (When examining an order sustaining summary judgment, this Court determines whether the record reveals disputed material facts; and even when basic facts are undisputed, whether motions for summary judgment should be denied, if from the evidence, reasonable persons might reach different inferences or conclusions.).
Notes
First Nat‘l Bank in Durant v. Honey Creek Entertainment Corp., 2002 OK 11, ¶ 12, 54 P.3d 100, 104 (“Fraud vitiates everything it touches, and a contract obtained thereby is voidable. And evidence is always admissible to show that contracts have been fraudulently obtained.“) Cf. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, n.7, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (federal courts sitting in admiralty generally should enforce forum-selection clauses absent a showing that to do so would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching).
In Scherk v. Alberto-Culver Co., 417 U.S. 506, n. 14, 519, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), the Court distinguished between fraud relating to a contract as a whole and fraud relating to a forum-selection clause: “...a forum-selection clause in a contract is not enforceable if the inclusion of that clause in the contract was the product of fraud or coercion.”
St. Louis-San Francisco Ry. Co. v. Superior Court of Creek County, 290 P.2d 118, 120 (“It is apparent that if a trial court should sustain a motion to dismiss on the grounds of forum non conveniens and dismiss the action, the plaintiff could appeal therefrom and thus obtain a review of the trial court‘s action, since such order on the part of the trial court would constitute a final order as defined by
The Court has stated that it may exercise original jurisdiction to review an order denying a motion to dismiss based upon the judicial doctrine of forum non conveniens because the defendant has no adequate remedy at law by which to obtain review because such an order does not constitute a final order and is not appealable as a matter of right. Groendyke Transport, Inc. v. Cook, 1979 OK 59, 594 P.2d 369, 372. See also St. Louis-San Francisco Ry. Co., 290 P.2d at 118, 120 (“... an order overruling a motion to dismiss on the grounds of forum non conveniens would not constitute a final order within the terms of the statute and would not be an appealable order.“).