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GP&W Inc. v. Daibes Oil, LLC

Court of Appeals of Missouri, Eastern District

September 6, 2016

GP&W INC., D/B/A CENTER MARKETING COMPANY, Respondent/Cross Appellant,
v.
DAIBES OIL, LLC, ET AL., Appellants/Cross Respondents.

         Appeal from the Circuit Court of St. Louis County Hon. Barbara W. Wallace

          OPINION

          Lisa S. Van Amburg, Judge.

         Daibes 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.

         Background and Procedural History

         This matter arises from a contract dispute between Daibes Oil[1] 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.

         The Agreements also contained the following provisions concerning attorney's fees:

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.

         In the underlying action, GP&W alleges Daibes Oil failed to pay the purchase price of the gasoline, in violation of the Agreements.

         In response to GP&W's First Amended Petition, [2] 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.[3]The trial court denied the motions. GP&W then filed a Motion for Summary Judgment, which the trial court granted.

         GP&W 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.

         Discussion

         Appellant 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 Missouri.

         Respondent 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 ...


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