Ameriprint, LLC Versus Canon Financial Services, Inc. Canon Solutions America, Inc.

AMERIPRINT, LLC NO. 21-C-110

VERSUS FIFTH CIRCUIT

CANON FINANCIAL SERVICES, INC. COURT OF APPEAL
CANON SOLUTIONS AMERICA, INC.
STATE OF LOUISIANA

May 24, 2021

Susan Buchholz
First Deputy Clerk

IN RE CANON SOLUTIONS AMERICA, INC.

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DANYELLE M.
TAYLOR, DIVISION "O", NUMBER 804-626

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Robert A. Chaisson

WRIT GRANTED

Canon Solutions America, Inc. (“CSA”) seeks supervisory review of a
February 1, 2021 judgment of the trial court denying its declinatory exception of
improper venue. For the following reasons, we grant CSA’s writ application,
vacate the judgment of the trial court, and render judgment sustaining CSA’s
exception of improper venue.

BACKGROUND

This case concerns the validity of a forum selection clause contained in a
Maintenance Agreement between Ameriprint, LLC (“Ameriprint”) and CSA for
the maintenance of a Canon printer on premises located at 3546 Airline Highway
in Metairie, Louisiana.1 On October 17, 2016, Ameriprint signed a two-page
Maintenance Agreement with CSA wherein CSA agreed to provide maintenance
services for the Canon printer in exchange for a fixed monthly sum. The
Maintenance Agreement contains the following provision in its terms and
conditions:

8. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH

1
Ameriprint leased this printer from Canon Financial Services, Inc. (“CFS”) by virtue of the assumption of a Lease
Agreement between its predecessor, H & H Printing Services, Inc. (“H & H Printing”) and CFS. CFS also seeks
supervisory review from this Court in a separate writ application, No. 21-C-94, of the trial court’s denial of its
exception of improper venue.

21-C-110

THE LAWS OF THE STATE OF NEW YORK. YOU CONSENT TO
THE EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE
OR FEDERAL COURT LOCATED WITHIN THE CITY OF NEW
YORK UPON SERVICE OF PROCESS MADE IN ACCORDANCE
WITH THE APPLICABLE STATUTES AND RULES OF THE
STATE OF NEW YORK OR THE UNITED STATES. ANY AND
ALL SUITS COMMENCED BY YOU AGAINST CSA, WHETHER
OR NOT ARISING UNDER THIS AGREEMENT AND
REGARDLESS OF THE LEGAL THEORY UPON WHICH SUCH
SUITS ARE BASED, SHALL BE BROUGHT ONLY IN THE STATE
OR FEDERAL COURTS LOCATED WITHIN THE CITY OF NEW
YORK. YOU HEREBY WAIVE OBJECTIONS AS TO VENUE
AND COVENIENCE OF THE FORUM. …

On February 27, 2020, Ameriprint filed suit in the 24th Judicial District
Court for the Parish of Jefferson for rescission and dissolution of the lease and for
damages against both CSA and CFS. In its petition, Ameriprint alleged that, since
assumption of the lease, it has experienced recurring problems with the printer due
to defects such as the spewing of noxious substances which require remediation,
that technicians were unable to make repairs, and that it lost profits and revenues.

Ameriprint filed a supplemental and amending petition on August 4, 2020,
to additionally state facts relevant to its claims against CSA: that Ameriprint had a
maintenance contract with CSA to maintain the leased printer, that CSA breached
the contract by failing to maintain the printer, and that CSA refused to honor and
comply with the terms and conditions of the maintenance contract.2

In response to Ameriprint’s amended petition, CSA filed a declinatory
exception of improper venue in which it argued that the forum selection clause
contained in the Maintenance Agreement requires all claims to be filed in a New
York court and that venue in Jefferson Parish is improper.

In response to this exception, Ameriprint argued that venue is proper in
Louisiana based on general rules for actions on contracts set forth in La. C.C.P. art.
76.1, as well as for actions on offenses or quasi offenses set forth in La. C.C.P. art.
74. Ameriprint also argued that its petition alleges facts sufficient to state a claim
under the Louisiana Unfair Trade Practices Act, which allows for actions to be
brought by Louisiana residents regardless of forum selection clauses. Ameriprint
further argued that the forum selection clause contained in the Lease Agreement is
not contractually binding because it is adhesionary, against public policy, and
devoid of the requisite consent.3

Following a hearing on the matter at which no evidence was introduced, the
trial court, after finding the Lease Agreement and the Maintenance Agreement
were contracts of adhesion and against public policy, issued a judgment in favor of
Ameriprint denying both exceptions of improper venue. This timely writ
application followed.

2
This amended petition was filed in response to exceptions of no cause of action and no right of action filed by CSA
contending that it was not a party to the Lease Agreement or the Assumption Agreement.
3
We note that Ameriprint’s argument in opposition concerns the Lease Agreement with CFS, but makes no mention
of the Maintenance Agreement with CSA.
2

LAW

Venue is a question of law, which is reviewed de novo by the appellate court.
Seghers v. LaPlace Equip. Co., Inc., 13-350 (La. App. 5 Cir. 2/12/14), 136 So.3d
64. Evidence may be presented at a hearing on a declinatory exception. La. C.C.P.
art. 930. If evidence is admitted at a hearing on a declinatory exception, the
exception must be resolved on the evidence presented, rather than on the
allegations in the petition. Johnson v. Byrd, 48,411 (La. App. 2 Cir. 9/25/13), 125
So.3d 1220, 1226. For purposes of a venue exception, the allegations of the
plaintiff’s petition are taken as true; however, when evidence is offered at a trial on
the exception, the court is not bound to accept as true the allegations of the
petition. Chumley v. White, 46,479 c/w 46,707 (La. App. 2 Cir. 11/9/11), 80 So.3d
39, 42.

A forum selection clause is a provision in a contract that mandates a
particular state, county, parish, or court as the proper venue in which the parties to
an action must litigate any future disputes regarding their contractual relationship.
Fidelak v. Holmes European Motors, L.L.C., 13-0691 (La. 12/10/13), 130 So.3d
851, 853. Forum selection clauses should be enforced in Louisiana unless the
resisting party can clearly show that enforcement would be unreasonable and
unjust, or that the clause was invalid for such reasons as fraud or overreaching or
that enforcement would contravene a strong public policy of the forum in which
the suit is brought. Shelter Mut. Ins. Co. v. Rimkus Consulting Grp., Inc. of
Louisiana, 13-1977 (La. 7/1/14), 148 So.3d 871, 881. Forum selection clauses are
generally enforceable and are not per se violative of public policy in Louisiana. Id.
at 878. Forum selection clauses are favored because the elimination of
uncertainties relative to the location of litigation by agreement in advance on an
acceptable forum to both parties is an indispensable element of trade, commerce,
and contracting. Id. at 882. In Creekstone Juban I, L.L.C. v. XL Ins. Am., Inc., 18-
0748 (La. 5/8/19), 282 So.3d 1042, 1048, the Louisiana Supreme Court re-
emphasized that forum selection clauses are unenforceable and against public
policy in “very limited circumstances.”

A contract of adhesion is a standard contract, usually in printed form,
prepared by a party of superior bargaining power for adherence or rejection of the
weaker party. Aguillard v. Auction Mgmt. Corp., 04-2804 (La. 6/29/05), 908 So.2d
1, 10. Often in small print, these contracts sometimes raise a question as to
whether or not the weaker party actually consented to the terms. Id. Consent is
called into question by the standard form, small print, and most especially the
disadvantageous position of the accepting party, which is further emphasized by
the potentially unequal bargaining positions of the parties. Id. An unequal
bargaining position is evident when the contract unduly burdens one party in
comparison to the burdens imposed upon the drafting party and the advantages
allowed to that party. Id. Once consent is called into question, the party seeking to
invalidate the contract as adhesionary must then demonstrate the non-drafting party
either did not consent to the terms in dispute or his consent was vitiated by error,
which in turn renders the contract or provision unenforceable. Id.

Upon de novo review, we find that the trial court erred in denying CSA’s exception
of improper venue. Ameriprint argues, without providing supporting evidence,
that it would not have entered into the maintenance agreement if it had known of
the printer’s defects. This argument concerns the merits of Ameriprint’s claims for
breach of contract and action in redhibition, but does not address the validity of the

3

presumptively valid forum selection clause. In its petition, Ameriprint
acknowledges the Lease Agreement, the Assumption Agreement, and the
Maintenance Agreement, but alleges no facts concerning the negotiation or signing
of these agreements which suggest they were not freely entered into at the time
they were signed. Even assuming the allegations set forth in the petition are true,
Ameriprint has failed to show, with alleged facts or evidence, that enforcement of
the agreement would be unreasonable or unjust, or that enforcement would
contravene a public policy of the State of Louisiana. Accordingly, we grant this
writ application, vacate the February 1, 2021 judgment of the trial court, and
sustain the declinatory exception of improper venue filed by CSA.

Gretna, Louisiana, this 24th day of May, 2021.

RAC
SMC
FHW

4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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