TRINITY, a division of Bank of the West, a foreign corporation, Plaintiff-Adverse Party,
APEX DIRECTIONAL DRILLING LLC, an Oregon limited liability company, Defendant, and Michael LACHNER, Defendant-Relator.
and Submitted April 11, 2018
Original proceeding in mandamus. (CC 16CV00770)
Shannon, Troutdale, argued the cause and fled the petition
for alternative writ of mandamus for the defendant-relator.
J. Bell, Bell Law Firm PC, Wilsonville, argued the cause and
fled the brief for the plaintiff-adverse party.
Or. 258] Case Summary:
party Trinity brought an action in Clackamas County Circuit
Court to enforce a personal guaranty contract on a loan.
Defendant-Relator Lachner, who signed the personal guaranty,
responded with a motion to dismiss the action because the
personal guaranty contained a forum-selection clause stating
that "any litigation" relating to the guaranty
"shall be brought only in the City and County of San
Francisco." The trial court refused to enforce the
clause and denied the motion to dismiss, and
defendant-relator fled a petition for alternative writ of
mandamus, which this court issued. The trial court made
findings but did not change its ruling, and the parties
proceeded to argument in this court. Held: (1) A
trial court must enforce a forum-selection clause unless
doing so would result in "serious inconvenience" or
be in some other way "unfair or unreasonable," and
(2) those circumstances were not present here, so the trial
court erred in denying the motion to dismiss.
peremptory writ of mandamus shall issue.
Or. 259] BALMER, J.
mandamus proceeding arises from a dispute about a
contract's forum-selection clause. Trinity Bank- here,
the adverse party-loaned money to Apex, a drilling company.
Lachner, a part owner of Apex and the relator in this case,
signed a personal guaranty of the loan. The personal
guaranty, which Trinity drafted, contained a forum-selection
"You agree that any litigation, related to or arising
from this guaranty shall be brought only in the City and
County of San Francisco, California and you consent to
personal jurisdiction in either state or federal court."
defaulted on the loan, and Lachner defaulted on the guaranty.
Trinity filed an action in Clackamas County Circuit Court
asserting separate breach of contract claims against Apex (on
the loan) and Lachner (on the guaranty). Apex made no
appearance, and a default judgment was entered against it.
Lachner filed a motion to dismiss the action against him
under ORCP 21 A(1), because the action was not filed in San
Francisco as required by the forum-selection clause. See
Roberts v. TriQuint Semiconductor, Inc., 358 Or. 413,
417, 364 P.3d 328 (2015) (party may move to dismiss action
under ORCP 21 A(1) based on forum-selection agreement).
Neither party disputed the meaning of the forum-selection
clause, only whether it should be enforced. The trial court
denied the motion, without making any findings or conclusions
of law, stating that it "ha[d] discretion in [the]
matter." We conclude that the clause should be enforced.
Lachner's petition, this court issued an alternative writ
of mandamus directing the trial court to vacate its order
denying Lachner's motion to dismiss and grant that
motion, or to show cause why it should not do so. The trial
court declined to grant the motion to dismiss, but held
another hearing on the motion, considered materials submitted
by the parties, and issued written factual findings
supporting its denial of the motion. Those findings generally
concluded that Oregon was the more reasonable forum. Because
the trial court declined to vacate its order and grant [363
Or. 260] the motion to dismiss, the parties proceeded to
argument in this court.
preliminary matter, Trinity argues that mandamus is not
appropriate in this case, because the case can be litigated
through trial to a final judgment and Lachner can raise his
forum-selection clause issue in an appeal from that judgment.
In that respect, Trinity argues, Lachner has a
"plain" and "adequate" remedy by means of
an appeal. See ORS 34.110 (writ of mandamus shall
not issue "in any case where there is a plain, speedy
and adequate remedy in the ordinary course of the law").
Trinity's objection is not well taken. This court has
held that mandamus is an appropriate mechanism for
challenging a trial court's decision not to enforce a
forum-selection clause. Roberts, 358 Or at 417. When
the decision not to enforce a forum-selection clause falls
outside the trial court's permissible range of
discretion, i.e., when the law compels a single
course of action, a party may challenge a trial ...