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Kansas City Grill Cleaners, LLC v. The BBQ Cleaner, LLC

Court of Appeals of Kansas

December 13, 2019

Kansas City Grill Cleaners, LLC, Appellant,
v.
The BBQ Cleaner, LLC, and Jeffrey Krentzman, Appellees.

         SYLLABUS BY THE COURT

         1. The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect.

         2. Kansas appellate courts exercise unlimited review over the interpretation and legal effect of a forum-selection clause.

         3. A forum-selection clause is generally valid and enforceable. However, the clause is unenforceable if the party resisting it shows that enforcement would be unreasonable under the circumstances.

         4. A forum-selection clause is unreasonable if: (1) it was induced by fraud or duress; (2) there is no reasonable relationship between the selected forum and the complained of transaction; (3) the contractually selected forum is so unfair and inconvenient that it, for all practical purposes, deprives the plaintiff of a remedy or of its day in court; or (4) enforcement would contravene a strong public policy of the state where the action has otherwise been properly filed.

         5. The Kansas Consumer Protection Act's venue statute, K.S.A. 50-638(b), provides: "Venue. Every action pursuant to this act shall be brought in the district court of any county in which there occurred an act or practice declared to be a violation of this act, or in which the defendant resides or the defendant's principal place of business is located. If the defendant is a nonresident and has no principal place of business within this state, then the nonresident defendant can be sued either in the district court of Shawnee county or in the district court of any county in which there occurred an act or practice declared to be a violation of this act."

         6. The Kansas Consumer Protection Act's waiver or forbearance statute, K.S.A. 50-625(a), provides: "Except as otherwise provided in this act, a consumer may not waive or agree to forego rights or benefits under this act." This provision applies unless a settlement is reached that is not unconscionable. K.S.A. 50-625(c).

         7. To the extent that a contractual provision waives a consumer's right or benefit provided by the Kansas Consumer Protection Act, K.S.A. 50-625(a) prevents the operation of that contractual provision.

         8. Under K.S.A. 50-623(b), the Kansas Consumer Protection Act shall be construed liberally to promote the policy of protecting consumers from suppliers who commit deceptive and unconscionable practices.

         9. Under the facts of this case, the forum-selection clause of the purchase agreement is unenforceable because it contravenes the strong public policy of our state "to protect consumers from suppliers who commit deceptive and unconscionable practices," K.S.A. 50-623(b). In particular, the forum-selection clause runs counter to the Kansas Consumer Protection Act venue statute as set forth in K.S.A. 50-638(b) and the nonwaiver or agreement "to forego rights or benefits" provision as set forth in K.S.A. 50-625(a).

          Appeal from Johnson District Court; Daniel W. Vokins, magistrate judge.

          Steven H. Mustoe and Oliver P. Maguire, of Evans & Dixon, LLC, of Overland Park, for appellant.

          John B. Gariglietti and James F.B. Daniels, of McDowell, Rice, Smith & Buchanan, of Kansas City, Missouri, for appellees.

          Before Buser, P.J., Atcheson, J., and Walker, S.J.

          Buser, J.

         Kansas City Grill Cleaners, LLC (KC Grill) entered into a contract with The BBQ Cleaner, LLC (BBQ Cleaner) for the purchase of outdoor grill cleaning equipment and supplies. The contract included a forum-selection clause and choice-of-law provision, which provided that the venue for any litigation arising from the contract was only proper in Bergen County, New Jersey, and that the contract shall be construed and enforced in accordance with the laws of New Jersey.

         After a dispute over the contract, KC Grill filed a petition in Johnson County District Court, alleging BBQ Cleaner and its agent, Jeffrey Krentzman (collectively BBQ Cleaner), violated the Kansas Consumer Protection Act (KCPA) by engaging in a deceptive trade practice. BBQ Cleaner filed a motion to dismiss based on the forum-selection clause. The district court dismissed the case. KC Grill appeals the district court's dismissal of its petition against BBQ Cleaner.

         Upon our review, we agree with KC Grill and hold that, under the facts and circumstances of this case, the forum-selection clause is unenforceable. This contractual provision contravenes the strong public policy of our state "to protect consumers from suppliers who commit deceptive and unconscionable practices" as generally provided in K.S.A. 50-623(b). In particular, the forum-selection clause runs counter to the KCPA venue statute as set forth in K.S.A. 50-638(b) and the nonwaiver or agreement "to forego rights or benefits" provision as set forth in K.S.A. 50-625(a). ...


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