CHARLES E. NASH, Appellant, v. HAROLD B. DREYER, an individual; GUNDERBOOM, INC. and DEJON CORPORATION, Appellees.
Supreme Court No. S–14063
-- March 28, 2012
Appearances: Charles E. Nash, pro se, Wasilla, Appellant. Jennifer M. Coughlin, K & L Gates, LLP, Anchorage, for Appellee.
MEMORANDUM OPINION AND JUDGMENT *
Charles Nash filed a civil action against Harold Dreyer, Gunderboom, Inc., and Dejon Corporation in the superior court in Palmer. The superior court granted Dreyer's motion to change venue to Anchorage and the superior court in Anchorage ultimately dismissed the case due to Nash's failure to comply with discovery orders. Nash appeals, arguing the superior court erred by granting Dreyer's motion to change venue and by dismissing his case as a discovery sanction. We affirm.
II. FACTS AND PROCEEDINGS
In 2006, Charles E. Nash worked as a consultant for Dreyer, Gunderboom, Inc., and Dejon Corporation (“Dreyer”) on a number of projects related to a Panama timber operation. According to Nash, he was paid for this work by “salary draws” on an “as needed basis,” pursuant to an oral agreement with Dreyer.
On September 15, 2006, Nash and Dreyer entered into a written consulting agreement. The agreement detailed the terms of Nash's employment and stated: “Although dated September 15, 2006, this Agreement covers all work performed by ․ Nash for [Dreyer] on projects in Panama․” Following this statement was a list of projects on which Nash had already worked. The agreement also contained a non-compete clause and a venue selection clause designating Anchorage as the appropriate venue.
A few days later, Nash emailed Dreyer requesting the balance owed on work completed through September 14, 2006. In this email, Nash claimed that from February 28, 2006 to September 14, 2006, he worked 186 days at the rate of $500 per day, for a total balance due of $93,000, less salary draws. According to Nash, he received one check from Dreyer in the amount of $18,000, but no other payments were forthcoming.
On February 29, 2008 Nash, appearing pro se, filed a complaint in the superior court in Palmer alleging Dreyer had fraudulently induced him to sign the consulting agreement and wrongfully refused to pay the wages he had earned. Nash requested $49,000 plus interest for unpaid wages, as well as compensatory damages of $128,750 and punitive damages of “no less than $300,000” for “emotional and financial distress.” Dreyer denied Nash's allegations and counterclaimed, alleging Nash had breached the non-compete and non-disparagement clauses in the consulting agreement and had misappropriated funds belonging to Dreyer.
On May 27, 2008, Dreyer filed a motion to change venue to Anchorage, relying on the venue selection clause of the consulting agreement. Nash opposed, arguing that the consulting agreement was invalid by reason of fraud. Nash claimed that, had he known he would never be paid for his prior work, he would not have signed the agreement. Superior Court Judge Vanessa White granted the motion to change venue to Anchorage.
On September 2, 2008, Superior Court Judge Jack Smith set trial for the week of August 10, 2009. In the intervening months, the trial was rescheduled three times, in large part because Nash failed to fully respond to discovery requests and discovery orders. At the trial call on July 29, 2009, Judge Smith rescheduled the trial for the week of November 16, 2009.1 At a trial call held that November, Judge McKay rescheduled the trial for the week of March 8, 2010. When Nash failed to appear for the trial call on February 24, 2010, Judge McKay set a hearing for March 8, 2010. At a follow-up hearing, Judge McKay set a May 3, 2010 deadline for Nash's production of discovery, and set a new trial date for August 16, 2010. Judge McKay set a status hearing for June 18, 2010, which Nash did not attend. Dreyer moved to dismiss the case, and the superior court granted this motion.
Nash filed an appeal with this court on February 18, 2011.
III. STANDARD OF REVIEW
Nash argues the superior court erred by enforcing the forum-selection clause in the consulting agreement and granting Dreyer's motion to change venue, and by dismissing his case. We review a trial court's decision on a motion to change venue for abuse of discretion.2 However, the enforceability of a forum-selection clause is a question of law that we review de novo.3
A. The Superior Court Did Not Err By Enforcing The Forum–Selection Clause.
In determining whether a forum-selection clause is enforceable, we follow the reasonableness approach of the United States Supreme Court, which holds that such clauses “are enforceable absent a clear showing ‘that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.’ “ 4 The party seeking to prevent enforcement of a venue provision bears the burden of proving that the clause was invalid; it is insufficient merely to assert that there are triable issues of fact.5 Rather, the party must “clearly show that ․ the clause was invalid for reasons such as fraud.” 6
In Crowson v. Sealaska, we held that a forum-selection clause was not enforceable given the “great and uncontradicted evidence of fraud.” 7 There was “strong evidence” that the party seeking to avoid enforcement of the forum-selection clause had been misled by its employees, at least one of whom was operating as a “covert agent” on behalf of the opposing party.8 We concluded “only one interest was represented at the bargaining table,” and “everything in the contracts that work[ed] to [the opposing party's] advantage was presumably done in return for the bribe payments.” 9
Here, Nash argues that Dreyer's failure to pay him for work completed nullifies the contract, thereby rendering the forum-selection clause unenforceable. Nash, however, does not allege and did not present any evidence of fraud or misleading conduct as was present in Crowson. Nash has therefore failed to establish that the forum-selection clause in the consulting agreement was invalid due to fraud, and the superior court did not err by enforcing the clause.
B. We Decline To Consider Whether The Superior Court Abused Its Discretion By Dismissing Nash's Claims Because Nash Has Abandoned This Claim.
In his opening brief on appeal, Nash asserted that the superior court erred by dismissing his case as a discovery sanction. However, Nash addressed this argument in passing in a single paragraph in his brief and did not provide a substantive analysis of this issue or any citations to legal authority. Nash wrote:
The Anchorage Superior Court erred in dismissing Appellant's complaint. Appellant worked on a full[-]time exclusive basis for Appellee for seven months, had an immediate supervisor, was supplied his room and board and his transportation, was required to use company expense forms, an office sign[-]out board and was given a company job title and business cards. He was an employee; meeting every test used by the State of Alaska and the Internal Revenue Service to determine whether a worker is an employee or a contractor. Because Appellant's only means to collect the wages that he legitimately earned is through litigation; it is grossly unjust to deny Appellant his day in court.
Nor did he address this issue at oral argument. We have frequently treated issues raised but not adequately briefed or argued as abandoned.10 Because Nash has abandoned this issue, we decline to address it.
We AFFIRM the superior court's order changing venue and AFFIRM the superior court's order dismissing Nash's case.
1. FN1. This is the extent of Judge Smith's involvement. After this, Superior Court Judge Patrick McKay was assigned to the case and presided over the rest of the proceedings.
2. FN2. Sever v. Alaska Pulp Corp., 931 P.2d 354, 360 n.7 (Alaska 1996).
3. FN3. Bodzai v. Arctic Fjord, Inc., 990 P.2d 616, 618 (Alaska 1999).
4. FN4. Crowson v. Sealaska, 705 P.2d 905, 911 (Alaska 1985) (quoting M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 15 (1972)).
5. FN5. Id. at 911–12.
6. FN6. Id. (quoting M/S Bremen, 407 U.S. at 15) (emphasis omitted). A party seeking to “escape enforcement” of a valid venue selection clause may also do so by “showing that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court, or that enforcement of the clause would contravene a strong public policy of the forum in which suit is originally brought.” Abadou v. Trad, 624 P.2d 287, 290 (Alaska 1981). Nash makes no such argument, and even if he did such an argument would be meritless given the proximity of Palmer to Anchorage.
7. FN7. 705 P.2d at 912.
8. FN8. Id. at 911.
9. FN9. Id.
10. FN10. Matter of H.C., 956 P.2d 477, 480 n.7 (Alaska 1998) (holding that “even though the issue was included in appellant's points on appeal statement, the issue was abandoned because appellant failed to adequately brief it”) (citing Kodiak Elec. Ass'n, Inc. v. DeLaval Turbine, Inc., 694 P.2d 150, 153 n.4 (Alaska 1984)); see also Wetzler v. Wetzler, 570 P.2d 741, 742 n.2 (Alaska 1977) (“[W]e will ․ consider as abandoned questions set forth in the [p]oints but not argued in Mr. Wetzler's brief.”).