Schmidt, Sethi & Akmajian Blog

Contracts: Forum Selection Clause--Waiver

Posted by Ted A. Schmidt | Feb 12, 2016 | 0 Comments

Russo v. Barger, 731 Ariz. Adv. Rep. 31 (App. I, January 26, 2016) (J. Downey)


In this lawsuit involving a real estate dispute in Mexico the trial court granted defendant's motion to dismiss ruling that the forum selection clause in the parties' contract required the matter be litigated in Mexico. The Arizona Court of Appeals vacated the trial court's dismissal and remanded the case.

Here the defendant willingly participated in the instant Arizona state court action brought by plaintiffs for over three years, filed pleadings, attended status conferences, moved for summary judgment and had their statute of limitations defense rejected before asserting the forum  selection clause defense.

While the existence of waiver is normally a  jury question, when, as here, the evidence to support it is uncontroverted “[w]e hold that, as with arbitration clauses and notice-of-claim defenses, a party may waive reliance on an otherwise-enforceable forum selection clause by participating substantially in litigation without promptly seeking to enforce the clause. . . . Had Appellees timely sought dismissal based on the forum selection clause, years of litigation and expense could have been avoided, as well as the expenditure of significant judicial resources.”

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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