Maplehurst Bakeries, Llc, Petitioner V. John Bean Technologies Corp., Et Ano., Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MAPLEHURST BAKERIES, LLC, an
Indiana limited liability company,
Appellant,
v.
JOHN BEAN TECHNOLOGIES
CORPORATION, a Delaware
corporation; and PRECISION
INDUSTRIAL CONTRACTORS, INC., a
Washington corporation,
Respondents.
No. 81169-0-I
DIVISION ONE
UNPUBLISHED OPINION
CHUN, J. — Maplehurst Bakeries, LLC (Maplehurst) sued John Bean
Technologies Corporation (JBT) and Precision Industrial Contractors, Inc.
(Precision) in Washington. The trial court dismissed the action as to JBT for
improper venue. Maplehurst appeals. We affirm.
I. BACKGROUND
Maplehurst, an Indiana limited liability company headquartered in Indiana,
produces and sells baked goods. JBT, a Delaware corporation with its principal
place of business in Illinois, manufactures and services commercial food
processing equipment.
JBT became a preferred service vendor for Maplehurst. Maplehurst’s
preferred vendor agreement states any “legal action or proceeding” relating “to
these Terms and Conditions may be brought only in the Courts of the State of

No. 81169-0-I/2
2
Indiana, sitting in the County of Hendricks or in the United States District Court
for the Southern District of Indiana.”1
Maplehurst accepted JBT’s proposal to refurbish a spiral freezer in Kent,
Washington. JBT’s purchase order for this project designates “the State or
Federal courts sitting, respectively, in Cook County Illinois or the federal district
of which that county is a part” for any disputes between the parties. JBT
subcontracted the refurbish work to Precision, but provided supervision,
direction, and expertise.
After determining that the freezer was improperly serviced and led to
damages to its food product, Maplehurst sued JBT and Precision in Washington,
alleging negligence and strict product liability. Based on improper venue, the trial
court dismissed Maplehurst’s claims against JBT without prejudice. The court
also denied Maplehurst’s motion for reconsideration.
The trial court granted Maplehurst’s CR 54(b) motion to certify the
dismissal order as final as to JBT. A commissioner of this court granted
discretionary review of the order.
II. ANALYSIS
Maplehurst says the trial court erred in dismissing its complaint against
JBT because (1) personal jurisdiction exists in Washington as to all the parties,
(2) enforcement of the forum selection provisions would be unjust, leading to
litigation in multiple fora, (3) enforcement would be unreasonable, and (4) issues
1 The copy of Maplehurst’s terms and conditions in the record does not include
JBT’s signature. But the parties do not dispute that JBT executed this agreement.

No. 81169-0-I/3
3
of fact remain on whether Indiana or Illinois was the proper forum. We disagree
with these arguments.
A. Standard of Review
We review a trial court’s decision on the enforceability of a forum selection
clause for an abuse of discretion. Dix v. ICT Grp., Inc., 160 Wn.2d 826, 833, 161
P.3d 1016 (2007). A trial court abuses its discretion if its decision is manifestly
unreasonable, based on untenable grounds, based on an erroneous view of the
law, or involves application of an incorrect legal analysis. Id. Thus, “the abuse of
discretion standard gives deference to a trial court’s fact-specific determination
on enforceability of a forum selection clause, while permitting reversal where an
incorrect legal standard is applied.” Id. But we review de novo pure questions of
law. See id. at 833-34 (whether public policy precludes giving effect to a forum
selection clause in particular circumstances presents a question of law).
Washington courts enforce forum selection clauses unless they are
unreasonable and unjust. Voicelink Data Servs., Inc. v. Datapulse, Inc., 86 Wn.
App. 613, 617, 937 P.2d 1158 (1997). “A ‘party arguing that the forum selection
clause is unfair or unreasonable bears a heavy burden of showing that trial in the
chosen forum would be so seriously inconvenient as to deprive the party of a
meaningful day in court.’” Dix, 160 Wn.2d at 835 (quoting Bank of Am., N.A. v.
Miller, 108 Wn. App. 745, 748, 33 P.3d 91 (2001)). “‘[A]bsent evidence of fraud,
undue influence, or unfair bargaining power, courts are reluctant to invalidate
forum selection clauses as they increase contractual predictability.’” Id. (quoting
Bank of Am., 108 Wn. App. at 748).

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When evaluating the enforceability of a forum selection clause, we do “not
accept the pleadings as true[;]” rather, “the challenging party must present
evidence to justify nonenforcement.” Id. (citing Bank of Am., 108 Wn. App. at
748; Voicelink, 86 Wn. App. at 618).
B. Washington Jurisdiction
Maplehurst seeks reversal on the ground that Washington courts have
personal jurisdiction over all the parties, including Precision. This argument
misses the mark. That such jurisdiction may exist does not weaken the right to
enforce a forum selection clause requiring suit in another venue. Chew v. Lord,
143 Wn. App. 807, 818, 181 P.3d 25 (2008) (“Consenting to personal jurisdiction
in Washington courts is not the same as agreeing that Washington courts are the
only venue in which a claim may be brought.”); Voicelink, 86 Wn. App. at 626.
C. Unfair Application to Precision
Maplehurst says that a forum selection clause should not be enforced
against Precision because that party did not agree to the provisions.2 Maplehurst
presents no authority to support its argument.
Maplehurst relies on the Utah case of Prows v. Pinpoint Retail Sys., Inc.,
868 P.2d 809 (Utah 1993). It appears to say that the Washington case of
Voicelink cites Prows with approval for the proposition that a forum selection
2 While neither party on appeal discusses it, we question whether Maplehurst has
standing to assert Precision’s interests here. “The doctrine of standing prohibits a
litigant from raising another’s legal rights.” Haberman v. Washington Pub. Power Supply
Sys., 109 Wn.2d 107, 138, 744 P.2d 1032 (1987) (citing Allen v. Wright, 468 U.S. 737,
750-51, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984)). But we need not address this issue
because we reject Maplehurst’s argument on other grounds.

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clause forcing a party to litigate in two venues is unjust. See Voicelink, 86 Wn.
App. at 619 n. 3. But Voicelink does not purport to approve of Prows. Rather,
the case deems Prows as “readily distinguishable” and “inapposite to the case at
hand.” Id.
Nor does Prows support Maplehurst’s argument. In Prows, a Utah-based
plaintiff sued two companies in Utah, a Utah corporation and a Canadian
company. 868 P.2d at 812. The Canadian company moved to dismiss, arguing
that a forum selection clause required all claims between it and plaintiff be
litigated in New York. Id. The plaintiff argued that if the forum selection clause
were enforced, litigation would be required in Utah against one defendant and in
New York against the other. Id. at 812. The Prows court reasoned, “[r]equiring a
bifurcated trial on the same issues contravenes the ‘objective of modern
procedure,’ which is to ‘litigate all claims in one action if that is possible’” and
held requiring the plaintiff to litigate in two states would essentially deny the
plaintiff’s day in court. Id. at 813 (quoting Dyersburg Machine Works, Inc. v.
Rentenbach Eng’g Co., 650 S.W.2d 378, 380–81 (Tenn.1983)). Prows says
nothing about forcing the Utah company, a nonparty to the forum-selection
agreement—like Precision here—to litigate in multiple fora.
D. Unjust Litigation in Multiple States
Maplehurst also says that enforcement of a forum selection clause would
force it to potentially litigate in multiple states and thus be unjust. To support this
assertion, it contends the trial court failed to evaluate the potential of it having to
litigate against JBT and Precision in separate states. The record does not

No. 81169-0-I/6
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support this contention. At the hearing, this exchange took place between the
court and counsel:
[COUNSEL]: Illinois or Indiana. And we’d be suing [Precision]
here in Washington. And we would have two separate actions with
the possibility of two separate verdicts. Because I can guarantee
you that J—
THE COURT: But wouldn’t you – you would try to sue
[Precision] in Illinois or Indiana? I mean, again, maybe you
strategically decide it’s not worth it, but potentially you could still do
it, and then [Precision] will then come in and argue presumably that
we shouldn’t be here, we should be in Washington because of X, Y,
Z.
Maplehurst fails to meet its burden of proving enforcement of a forum
selection clause would be unjust.3
E. Unreasonableness of Enforcement
Maplehurst alleges enforcement would be unreasonable because
Washington is where the witnesses are located, the refurbishment service was
performed, and the damages occurred. But that is not the test for determining
unreasonableness. To prove unreasonableness here, Maplehurst had to prove
that it would be so seriously inconvenienced by litigation in another state that
Maplehurst would be denied its day in court. Dix, 160 Wn.2d at 835. But the
record does not contain any evidence of serious inconvenience to Maplehurst.
3 Maplehurst asks us to take judicial notice of an order dismissing Precision from
a concurrent suit pending before the Cook County Circuit Court in Illinois, as evidence
that it is litigating the same issues in two fora. We decline Maplehurst’s invitation for two
reasons. First, we do not need the Illinois order “to fairly resolve the issues on review.”
RAP 9.11(a). Second, “we cannot, while deciding one case, take judicial notice of
records of other independent and separate judicial proceedings even though they are
between the same parties.” In re Adoption of B.T., 150 Wn.2d 409, 415, 78 P.3d 634
(2003) (citations omitted); King County v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd.,
142 Wn.2d 543, 549 n. 6, 14 P.3d 133 (2000) (“Even though ER 201 states that certain
facts may be judicially noticed at any stage of a proceeding, RAP 9.11 restricts appellate
consideration of additional evidence on review.”).

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In opposition to JBT’s motion to dismiss below, Maplehurst filed three
declarations: one from its counsel, another from Tim Richardson (its plant
manager in Kent), and the last from Greg Taylor (its vendor manager in
Brownsburg, Indiana). Neither the Richardson nor Taylor declarations (1) say
where the pertinent witnesses are located, (2) indicate all of Maplehurst’s
damages occurred in Washington, (3) complain about the costs of litigating in
multiple states being burdensome, (4) express any inconvenience of trial in other
states, or (5) detail how Maplehurst would not receive its day in court if trial
occurred outside Washington. Maplehurst’s counsel asserts the fact witnesses,
damages giving rise to this lawsuit, and evidence are all in Washington, but
“[a]ssertions by counsel are not evidence.” Voicelink, 86 Wn. App. at 619 n.2
(citing Bravo v. Dolsen Cos., 71 Wn. App. 769, 777, 862 P.2d 623 (1993)).
Maplehurst fails to establish facts to show a serious inconvenience in litigating
outside of Washington and because “[w]e will not consider allegations of fact
without support in the record.” Id. at 619. Maplehurst has not carried its burden
of proving unreasonableness.
F. Which Forum Selection Clause Applies
Maplehurst maintains the trial court abused its discretion by failing to
make findings on which party’s forum selection clause applied. We disagree. In
its oral ruling, the court correctly informed the parties it was “not making a
decision whether Illinois or Indiana or Ohio apply” and whether venue is in Ohio
or Illinois or Indiana, that determination is “for another hearing” and “not for the
Court to decide.”

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To the extent Maplehurst claims the trial court did not enter detailed
findings on this issue, we reject the argument. First, findings “are not necessary”
when granting a CR 12(b) motion. CR 52(a)(5)(B). Second, after having a
chance to review and revise the written order just before it was entered,
Maplehurst’s counsel agreed with the court’s written language. We conclude any
error was invited. Under the invited error doctrine, “a party may not set up an
error at trial and then complain of it on appeal.” Grange Ins. Ass’n v. Roberts,
179 Wn. App. 739, 774, 320 P.3d 77 (2013). The doctrine applies when a party
“takes affirmative and voluntary action that induces the trial court to take an
action that party later challenges on appeal.” Lavigne v. Chase, Haskell, Hayes
& Kalamon, PS, 112 Wn. App. 677, 681, 50 P.3d 306 (2002).
G. Motion to Strike
Finally, JBT moves to strike portions of Maplehurst’s opening brief,
arguing that it refers to evidence not contained in the record. We decline to
reach this issue, as we reject Maplehurst’s arguments on unrelated grounds.
We affirm.
WE CONCUR: