West Consultants, Inc. v. Davis
West Consultants, Inc. v. Davis
Opinion of the Court
¶1 West Consultants Inc. appeals the trial court’s enforcement of a forum selection clause. This decision resulted in the dismissal of its claims against Deltek Inc., Deltek Services Inc., Deltek Systems Inc., Deltek Corp., and Deltek Partners (collectively Deltek) for improper venue and an award of reasonable attorney fees and
FACTS
¶2 West is an environmental engineering firm. Deltek Inc. is a Delaware corporation with corporate offices located in Virginia. It manufactures software. A&E Systems sells and maintains Deltek software. On March 28, 2008, West purchased a Deltek Vision software license and quarterly maintenance from A&E. Deltek was not a party to and did not sign the purchase agreement, which stated,
No express warranties are given by A&E Systems regarding the Deltek, Inc. software that is being utilized in the performance of these services. Any implied warranties of fitness for a particular purpose, merchantability, or any other implied warranties as a matter of law, are specifically disclaimed. Any warranties for the Deltek, Inc. software will be given directly by Deltek, Inc. to the client and the client will look solely to Deltek, Inc. in regard to such warranties.
This agreement also included a choice of law provision: “This agreement shall be governed by the laws of the State of Washington and venue of any suit will be in King County, WA.”
¶3 West purchased installation, training, and support services from Deltek. West employee Hans Hadley signed a
¶4 On March 22, 2010, after West determined that the software did not meet its needs, West sued Deltek and A&E in King County Superior Court, alleging violations of the Consumer Protection Act (CPA), chapter 19.86 RCW; breach of implied warranties of merchantability and fitness for a particular purpose; and unjust enrichment. On May 25, the court granted Deltek’s motion to dismiss for improper venue under CR 12(b)(3), dismissing West’s claims against Deltek without prejudice. On June 14, 2010, the court entered an order granting Deltek’s request for attorney fees and costs. On August 5, 2011, after West and A&E settled, the court dismissed West’s claims against A&E.
¶5 On December 27, 2011, Deltek filed a notice of presentation of judgment under CR 54 for both the dismissal order and the fee award. West responded to the motion and attached a declaration from its attorney, Richard Seward,
STANDARD OF REVIEW
¶6 We review a trial court’s decision on the enforceability of a forum selection clause using an abuse of discretion standard.
¶7 We review the legal basis for an attorney fee award de novo, but we review the reasonableness of the award amount for abuse of discretion.
ANALYSIS
¶8 West’s primary contention is that the forum selection clause in the A&E purchase agreement controls its claims
¶9 In M.A. Mortenson Co. v. Timberline Software Corp.,
¶10 West’s complaint asserts that Deltek breached implied warranties of merchantability and fitness for a particular purpose. It also alleges that Deltek violated the CPA “by selling a poor quality product to Plaintiff WEST and failed to provide adequate installation, training and maintenance services to render the product useful for any purposes, let alone the special and particular purposes of the Plaintiff.” West does not dispute that its claims relate in whole or in part to the license agreement, particularly the agreement’s warranties and disclaimers, and it does not seek to rescind the license agreement. West does not allege any breach of the purchase agreement’s provisions.
¶11 As West appropriately acknowledged at oral argument, here, as in Mortenson, the purchase order is not an integrated contract. West’s claims cannot arise under the purchase agreement, which provides no express warranties regarding the software and disclaims any implied warranties. West had previously purchased software from A&E, although it had not previously used Deltek’s products. West does not dispute that the license and purchase contract terms were clear. When West purchased Deltek’s software, it had notice that it would be subject to a license. The purchase agreement between West and A&E recited that West was purchasing a license to use the software and noted that Deltek would provide any warranties for the software. The record indicates that a scroll box would have
¶12 West contends that it agreed to this contract without reading it. We follow the court’s reasoning in Mortenson that “it was not necessary ... to actually read the agreement in order to be bound by it” and that West assented to the license agreement’s terms by using the software.
¶13 “A forum selection clause is presumptively valid unless it violates fundamental public policy of the State of Washington and Washington’s interest in the determination of the issue materially outweighs the chosen state’s interest.”
¶14 West asserts that the license agreement’s forum selection clause is invalid because “Deltek cannot force a new agreement upon Plaintiff WEST without new consideration.” But, under Mortenson, the purchase order and license agreement constituted a single “layered contract,” not separate agreements.
¶15 West also contends that enforcing the license agreement’s forum selection clause would violate the CPA’s public policy goals and “deny Plaintiff WEST and any other injured Washington ‘persons’ a forum for its claims against Deltek.” In support of this argument, West cites Dix v. ICT Group, Inc.
¶16 On appeal, West argues that its claims against Deltek are time barred in Virginia and “that pursuing such claims in either state or federal court in Virginia would be cost prohibitive.” It first presented a similar argument to
¶17 West also claims that the trial court’s order awarding attorney fees and costs to Deltek “was only authorized by [RCW 4.28.185(5)] if the error had not occurred on the ruling granting Deltek’s motion to dismiss.” RCW 4.28.185(5) allows a prevailing defendant to recover reasonable attorney fees and costs “[i]n the event the defendant is personally served outside the state on causes of action enumerated in this section.” West does not dispute that it caused Deltek to be served personally in Delaware under Washington’s long-arm statute. Because the trial court properly granted Deltek’s motion under RCW 4.28.185(5), we affirm the fee award.
¶18 Deltek requests attorney fees and costs on appeal under RAP 18.1 and RCW 4.28.185(5). “Such an award is discretionary and is limited to the amount necessary to compensate a foreign defendant for the added costs of litigating in Washington.”
¶19 In a cross appeal, Deltek asserts that the trial court erred in denying its motion to strike Seward’s declaration, which West offered in response to Deltek’s notice of presentation. Because West does not prevail, we need not consider this issue.
CONCLUSION
¶20 Because West’s claims against Deltek arise under the license agreement, we affirm the trial court’s order dismissing its claims for improper venue and awarding attorney fees and costs to Deltek. Because Deltek prevails in this appeal, we also award costs and reasonable attorney fees to Deltek incurred on this appeal, limited to the amount necessary to compensate it for any additional costs of defending in Washington, upon its compliance with RAP 18.1.
Deltek denies, and no evidence shows, that the entities “Deltek Services Inc.,” “Deltek Systems Inc.,” “Deltek Corp.” or “Deltek Partners” exist. In April 2007, Deltek Systems Inc. converted to a Delaware corporation and changed its name from “Deltek Systems Inc.” to “Deltek Inc.”
Dix v. ICT Grp., Inc., 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).
Dix, 160 Wn.2d at 833 (citing Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993)).
Dix, 160 Wn.2d at 833.
Dix, 160 Wn.2d at 833-34.
Hulbert v. Port of Everett, 159 Wn. App. 389, 407, 245 P.3d 779 (citing Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 147, 859 P.2d 1210 (1993)), review denied, 171 Wn.2d 1024 (2011).
140 Wn.2d 568, 998 P.2d 305 (2000).
The court stated that article 2 of the Uniform Commercial Code, Title 62A RCW, which applies to transactions in goods, applies to software licensing. Based on facts similar to this case, the court concluded in Mortenson that RCW 62A.2-207 did not apply because the case concerned contract formation, not contract alteration. Additionally, RCW 62A.2-207 applies only to contracts between merchants. 140 Wn.2d at 582 & n.9.
Mortenson, 140 Wn.2d at 571.
Mortenson, 140 Wn.2d at 574-75.
Mortenson, 140 Wn.2d at 577.
Mortenson, 140 Wn.2d at 578.
Mortenson, 140 Wn.2d at 584.
Mortenson, 140 Wn.2d at 584 (second alteration in original).
Mortenson, 140 Wn.2d at 584.
Saleemi v. Doctor’s Assocs., 176 Wn.2d 368, 384, 292 P.3d 108 (2013) (citing McKee v. AT&T Corp., 164 Wn.2d 372, 384, 191 P.3d 845 (2008)).
Dix, 160 Wn.2d at 834.
Dix, 160 Wn.2d at 834-35; Voicelink Data Servs., Inc. v. Datapulse, Inc., 86 Wn. App. 613, 617, 937 P.2d 1158 (1997).
Dix, 160 Wn.2d at 834-35.
160 Wn.2d 826, 161 P.3d 1016 (2007).
Dix, 160 Wn.2d at 835.
Dix, 160 Wn.2d at 837.
See RAP 2.5(a) (“The appellate court may refuse to review any claim of error which was not raised in the trial court.”).
Payne v. Saberhagen Holdings, Inc., 147 Wn. App. 17, 36, 190 P.3d 102 (2008) (citing Scott Fetzer Co. v. Weeks, 114 Wn.2d 109, 120-21, 786 P.2d 265 (1990)).
See Payne, 147 Wn. App. at 36.
Reference
- Full Case Name
- West Consultants, Inc. v. Carolyn E. Davis
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