GP&W INC., D/B/A CENTER MARKETING COMPANY, Respondent/Cross Appellant,
DAIBES OIL, LLC, ET AL., Appellants/Cross Respondents.
from the Circuit Court of St. Louis County Hon. Barbara W.
S. Van Amburg, Judge.
Oil, LLC appeals the trial court's order granting summary
judgment in favor of GP&W Inc., d/b/a Center Marketing
Company (GP&W), as well as the trial court's denial
of its Amended Motion to Dismiss for Lack of Personal
Jurisdiction and Amended Motion to Transfer to the United
States District Court for the Eastern District of Missouri.
In its cross appeal, GP&W challenges the trial
court's denial of attorney's fees and costs to
GP&W as the prevailing party. We affirm in part and
reverse in part.
and Procedural History
matter arises from a contract dispute between Daibes
Oil and GP&W. Daibes Oil is a
limited liability company organized and operating under the
laws of New Jersey, and GP&W is a corporation organized
and existing under the laws of Missouri. On or about January
6, 2014, GP&W and Daibes Oil entered into two Purchase
Agreements (Agreements), whereby GP&W sold an aggregate
total of 210, 000 gallons of gasoline to Daibes Oil. The
Agreements contained a choice of law and forum selection
clause that provided:
17. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
MISSOURI (WITHOUT REFERENCE TO ANY CONFLICT OF LAW RULES),
WITHOUT RECOURSE TO ARBITRATION. BOTH PARTIES CONSENT TO THE
EXCLUSIVE JURISDICTION OF THE FEDERAL DISTRICT COURTS LOCATED
WITHIN THE EASTERN DISTRICT OF MISSOURI OR THE COURTS OF THE
STATE OF MISSOURI.
Agreements also contained the following provisions concerning
18. ATTORNEY'S FEES. In the event of a dispute between
the parties in connection with this Agreement, the prevailing
party in the resolution of any such dispute, whether by
litigation or other wise [sic], shall be entitled to full
recovery of all attorney's fees (including a reasonable
hourly fee for in-house legal counsel), costs and expenses
incurred in connection therewith, including costs of court,
from the non-prevailing party.
underlying action, GP&W alleges Daibes Oil failed to pay
the purchase price of the gasoline, in violation of the
response to GP&W's First Amended Petition,
 Daibes Oil filed an Amended Motion to
Strike, or, in the Alternative, Motion to Dismiss for Lack of
Personal Jurisdiction, Motion to Dismiss for Failure to State
a Claim, and Motion to Transfer.The trial court denied the motions.
GP&W then filed a Motion for Summary Judgment, which the
trial court granted.
requested attorney's fees and costs under the Agreements,
which was denied by the trial court. On December 1, 2015, the
trial court entered a final Revised Partial Judgment under
Rule 74.01, and both parties appealed.
Daibes Oil raises three points on appeal. In Point I, Daibes
Oil argues the trial court erred when it granted
GP&W's Motion for Summary Judgment because it did not
have personal jurisdiction over Daibes Oil. In Points II and
III, Daibes Oil contends the trial court erred when it denied
its Amended Motion to Dismiss and Amended Motion to Transfer
because the trial court did not have personal jurisdiction
over Daibes Oil, and the proper forum for the litigation was
the United States District Court for the Eastern District of
GP&W argues in response that Daibes Oil executed two
Agreements containing a forum selection clause, wherein
Daibes Oil waived personal jurisdiction and consented to the
jurisdiction of the United States District Court for the