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The Cohn Law Firm v. YP Southeast Advertising & Publishing, LLC

Court of Appeals of Tennessee, Jackson

June 24, 2015

THE COHN LAW FIRM, ET AL.
v.
YP SOUTHEAST ADVERTISING & PUBLISHING, LLC, AND YP TEXAS REGION YELLOW PAGES, LLC

Session: May 12, 2015

Appeal from the Chancery Court for Shelby County No. CH1400953 Kenny W. Armstrong, Chancellor

William A. Cohn, Cordova, Tennessee, for the appellants, The Cohn Law Firm, and William A. Cohn.

Robert Dale Grimes and Meredith M. Thompson, Nashville, Tennessee, for the appellees, YP Southeast Advertising & Publishing, LLC, and YP Texas Region Yellow Pages, LLC.

J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, J. and Brandon O. Gibson, J., joined.

OPINION

J. STEVEN STAFFORD, JUDGE

Background

This appeal involves several contracts for advertising services that Appellees YP Southeast Advertising & Publishing, LLC and YP Texas Region Yellow Pages, LLC ("Appellees") provided to The Cohn Law Firm and Attorney William A. Cohn ("Appellants"). Appellants filed their original complaint on January 20, 2014, and their first amended complaint on February 14, 2014, to include a mistakenly omitted page. In their first amended complaint, Appellants alleged that they had entered into annual contracts since the 1980s with Appellees wherein they agreed to purchase advertising in the telephone directory and some internet advertising when available. Appellants contend that they timely paid all monthly billings.

According to Appellants, Appellees also advised them regarding whether the advertising was successful. In the summer of 2008, Appellants noticed that the advertising results had been decreasing and wanted to lower the price and amount of print advertising; however, Appellants assert that Appellees assured them the advertising was indeed working. Appellants claimed that Appellees provided false information and false advice regarding the current business generated by the advertisements. In sum, the allegations against Appellees indicate that Appellants became dissatisfied with the advertising results. Appellants requested that the trial court rescind the 2013-2014 contract and the 2014-2015 contract, or alternatively, reform the contracts. Appellants did not specifically seek any relief with regard to the parties' previous contracts. Additionally, Appellants sought a declaratory judgment that the contracts were adhesion contracts, that Appellees had breached the contracts, and that the amount owed to Appellees by Appellants be reduced from $7, 800.00 monthly to $2, 900.00 monthly. Appellants also requested monetary damages in the amount allegedly overpaid to Appellees and that Appellees be enjoined from recovering any alleged debts. Notably, Appellants did not attach any of the written contracts to either the initial complaint or the first amended complaint.

On March 31, 2014, Appellees filed a motion to dismiss, pursuant to Tennessee Rules of Civil Procedure 12.02(2) and (3), based on alleged lack of personal jurisdiction and improper venue. In their attached memorandum of law, they asserted that the parties' contract[1] contained a forum selection clause requiring all contract-related disputes to be filed in the United States District Court for the Northern District of Georgia or the Superior Court of DeKalb County, Georgia. Appellees attached the parties' 2013-2014 contract, titled "YP Advertiser General Terms and Conditions, " and a "Summary Order Page, " which incorporated the terms and conditions by reference. The contract titled YP Advertiser General Terms and Conditions includes the following paragraph:

18. Miscellaneous; Exclusive Venue. This Agreement and all claims and disputes arising under or relating to this Agreement will be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to its conflicts of laws principles. Any action or proceeding arising under or relating to this Agreement shall be filed only in the United States District Court for the Northern District of Georgia or the Superior Court of DeKalb County, Georgia. Advertiser hereby consents and submits to the exclusive jurisdiction and venue of those courts and waives any objection based on the convenience of these exclusive venues. . . . If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

The Summary Order Page provides that the customer's name is "Cohn Law Firm, " and it was signed by Mr. Cohn.

Approximately one month later, on April 25, 2014, Appellants filed their second amended complaint[2] and added Regions Bank as a defendant. Regions Bank was voluntarily non-suited by Appellants on October 30, 2014. Upon the filing of the second amended complaint, Appellees filed a renewed motion to dismiss, again citing the forum selection clause in the parties' contracts.

Appellants responded to Appellees' motion to dismiss on May 31, 2014. Appellants alleged that the parties' contracts were adhesion contracts, that Georgia was an inconvenient forum, and that Mr. Cohn would not have knowingly agreed to litigate in Georgia. In support, Appellants filed the affidavit of Mr. Cohn. In the affidavit, Mr. Cohn states that the contracts are ones of adhesion because "[i]t was always sign this or you get nothing." He alleges that the terms were never negotiable, and he had no choice in the terms. The remainder of the affidavit explains that neither party has a substantial connection with the state of Georgia.

After a hearing on the motion to dismiss, [3] the trial court entered an order on August 1, 2014, granting Appellees' motion to dismiss. The trial court's order provides:

Based upon the Motion and Memorandum filed by [Appellees], the Response in Opposition [(to which Mr. Cohn's affidavit was attached)] filed by [Appellees], the arguments of counsel at the hearing on this matter, and the entire record in this case, the Court finds [Appellees'] Motion to Dismiss is well-taken. After consideration of the factors set forth in Dyersburg Mach. Works, Inc. v. Rentenbach Eng'g Co., 650 S.W.2d 378 (Tenn. 1983), the Court finds that the forum selection clause . . . is valid and enforceable.

From this order dismissing the complaint, Appellants timely filed their appeal.

Issue Presented

As we perceive it, this appeal presents one issue: whether the trial court erred in granting Appellees' motion to dismiss on the basis of the forum ...


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