North Carolina Lawyers Weekly
Parson v. Oasis Legal Finance, LLC (Lawyers Weekly No. 11-07-0790, 20 pp.) (Wanda G. Bryant, J.) Appealed from Guilford County Superior Court. (Catherine C. Eagles, J.) N.C. App. Click here for the full-text opinion.
Holding: Even though the parties’ contract did not go into effect until plaintiff received his $3,000 advance in North Carolina, the last act necessary to execute the contract was defendant’s signature – which took place in Illinois. Therefore, the contract was made in Illinois.
Despite the small amount at issue, it does not violate public policy to require plaintiff to obey the contract’s forum selection clause and to file suit in Illinois.
We reverse the trial court’s denial of defendant’s motion to dismiss for improper venue.
Facts
Defendant advanced $3,000 (and another $750 later) to plaintiff so plaintiff could pay his lawyer in a personal injury case. Plaintiff settled the personal injury case for $30,000.
According to the terms of the parties’ contract, $7,500 was due to defendant, but defendant agreed to accept $4,575 as full payment. Plaintiff’s lawyer disbursed that amount to defendant.
Plaintiff filed this purported class action in Guilford County, alleging usury, violation of the consumer finance act, unfair trade practices, constructive trust, maintenance, and champerty.
Defendant moved to dismiss for improper venue. The trial court denied the motion, and defendant appeals.
Formation
The agreement provides, “This Agreement shall not be effective until the Purchase Price is paid to the Seller.” Plaintiff received his advance in North Carolina.
The trial court concluded that the agreement was entered into in North Carolina. We hold otherwise.
Plaintiff, along with his attorney, signed the agreement and faxed it back to defendant on the same day, Jan. 15, 2008. Defendant’s agent in Illinois then signed the agreement, and, on Jan. 15, 2008, mailed to plaintiff a check for $2,972 ($3,000 less overnight shipping costs). Plaintiff received the check on Jan. 16, 2008.
The last act essential to establishing a meeting of the minds and affirming the mutual assent of both parties to the terms of the agreement was the signing of the agreement by defendant’s agent.
As the signature of defendant’s agent was made in Illinois, the contract was formed in Illinois.
Forum Selection Clause
The parties’ contract says it is to be governed by N.C. law, but its forum selection clause requires that any lawsuit concerning the contract be brought in Cook County, Illinois. The trial court found the forum selection clause to be unenforceable. We disagree.
Plaintiff contends that it would be “unreasonable and unfair to require a North Carolina plaintiff of limited means to maintain a lawsuit relating to transactions in the principal amount of $3,750.00, governed by North Carolina law, in Cook County, Illinois.”
A plaintiff seeking to avoid enforcement of a choice of governing law or forum clause entered into outside of North Carolina must meet a heavy burden and must demonstrate that the clause was the product of fraud or unequal bargaining power or that enforcement of the clause would be unfair or unreasonable.
Plaintiff does not supply, and we do not find, precedent to support a situation where a forum selection clause is held to be unenforceable based solely on the potential value of the damages claimed. Moreover, neither the trial court’s order nor plaintiff’s arguments provide a basis for the determination that the amount to be litigated is too small an amount to litigate in Cook County, Illinois.
The form agreement provided by defendant required only that plaintiff fill in the requested contact and personal data information, and then assent to the proposed terms. Plaintiff then entered into this agreement with the benefit of counsel.
The initial amount requested by plaintiff and advanced by defendant was $3,000, with a maximum repayment amount of $10,500. As such, alleged damages arising from “disputes, claims or other proceedings arising out of or relating to this Purchase Agreement” would be within the scope of these amounts. Therefore, we do not agree that a claim for damages arising from this contract in Cook County, Illinois would be unreasonable and unfair.
The forum selection clause mandates Cook County, Illinois, as the exclusive venue for all disputes arising from the purchase agreement, while N.C. law will be applied to govern the dispute, including the validity of the contract.
Reversed and remanded.
