[Cite as All Pro Freight Sys., Inc. v. Walker, 2019-Ohio-321.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
ALL PRO FREIGHT SYSTEMS INC. C.A. No. 18CA011337
Appellants
v. APPEAL FROM JUDGMENT ENTERED IN THE MARVIN WALKER COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellee CASE No. 18CV194155
DECISION AND JOURNAL ENTRY
Dated: February 4, 2019
TEODOSIO, Presiding Judge.
{¶1} All Pro Freight Systems, Inc., and its owner, Chris Haas (collectively, “All Pro”),
appeal the order of the Lorain County Court of Common Pleas finding that there was no proper
forum for trial in Ohio, staying the action, and providing All Pro sixty days to recommence the
action in North Carolina. We reverse and remand.
I.
{¶2} In January 2018, All Pro filed its complaint against Marvin Walker and Day
Runner, Inc., for breach of contract and promissory estoppel. The complaint alleged the
following facts.
{¶3} All Pro Freight Systems, Inc., is an Ohio corporation with its principal place of
business in Lorain County, and its owner, Chris Hass, has his principal place of residence in
Florida. Day Runner, Inc., is a North Carolina corporation, and its owner, Marvin Walker, is a
resident of North Carolina. Day Runner was intended to operate as a private, on-demand small 2
cargo carrier and messenger service utilizing voluntary independent contractors who would be
on-call during hours of the contractor’s choosing. All Pro intended to have exclusive rights to
operate Day Runner in the Cleveland, Ohio, and Orlando, Florida markets. In August, 2017, All
Pro loaned Mr. Walker and Day Runner $50,000.00 to pay for a software application that was to
be utilized by the business. After the funds had been transferred, Mr. Walker informed Mr. Haas
that he was “moving in another direction” and was no longer interested in doing business with
All Pro. He further acknowledged that the funds had been loaned and represented that he would
return the money. After several months of waiting, All Pro filed its complaint for breach of
contract and promissory estoppel.
{¶4} Subsequent to service having been perfected upon the defendants, All Pro filed its
motion for default judgment. On April 19, 2018, at a hearing on the motion, the trial court
granted the defendants until May 21, 2018, to respond to the complaint. That same day, Mr.
Walker filed a motion to transfer venue to Charlotte, North Carolina. The motion, in its entirety,
states: “I am requesting to have this case be heard in Charlotte[,] NC[,] as it isn’t the right
jurisdiction since all parties reside and transactions occurred in North Carolina.” All Pro
responded with a brief in opposition, and on May 17, 2018, the trial court, after applying the
doctrine of forum non conveniens, entered an order on Mr. Walker’s motion to transfer venue
stating:
1. The [c]ourt finds that defendants have timely asserted the defense of improper venue, that there is no proper forum for trial in this state, and that the proper forum for trial is Mecklenburg County, North Carolina.
2. Therefore, this Action is ordered STAYED. Plaintiffs are given sixty days to recommence this action in Mecklenburg County, North Carolina, or suffer dismissal without prejudice. 3
{¶5} All Pro now appeals, raising two assignments of error. The assignments of error
have been consolidated for the purposes of our review.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED BY RULING IT WAS NOT A PROPER FORUM.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED BY DISMISSING THE CASE PURSUANT TO THE DOCTRINE OF FORUM NON CONVENIENS.
{¶6} In its first assignment of error, All Pro argues the trial court erred in ruling that
Ohio was not a proper forum. In its second assignment of error, All Pro argues the trial court
erred in its application of the doctrine of forum non conveniens. We agree on both fronts.
{¶7} In Chambers v. Merrell-Dow Pharmaceuticals, Inc., 35 Ohio St.3d 123 (1988),
the Supreme Court of Ohio recognized that in applying the doctrine of forum non conveniens, an
Ohio court “may resist imposition upon its jurisdiction even when jurisdiction is authorized by
the letter of a general venue statute.” Id. at 126. “The doctrine of forum non conveniens, unlike
Civ.R. 3(D), assumes that proper jurisdiction and venue lie in the court the plaintiff has chosen,
but that there is also another forum in which the defendant may be sued.” Alexander v.
Chandley, 113 Ohio App.3d 435, 437 (9th Dist.1996), citing Chambers at 126.
{¶8} “The common-law doctrine of forum non conveniens is committed to the sound
discretion of a court of general jurisdiction, and may be employed pursuant to the inherent
powers of such court to achieve the ends of justice and convenience of the parties and
witnesses.” Chambers at paragraph one of the syllabus. “[T]he determination must be based on
a balancing of all relevant public and private factors, including the ease of access to evidence 4
including witnesses, the local interest in having local controversies decided at home, and the
appropriateness of litigating in a forum familiar with the applicable law.” Alexander at 437,
citing Chambers at 126-127. “A defendant who moves to dismiss on forum non conveniens
grounds has the burden of producing sufficient evidence to enable the court to balance these
competing interests.” Id. at 437-38, citing Salabaschew v. TRW, Inc., 100 Ohio App.3d 503, 507
(8th Dist.1995). “[U]nless the balance is strongly in favor of the defendant, the plaintiff’s choice
of forum should rarely be disturbed.” United Capital Ins. Co. v. Brunswick Ins. Agency, 144
Ohio App.3d 595, 601 (9th Dist.2001), quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508
(1947).
{¶9} We review a trial court’s decision applying the doctrine of forum non conveniens
for an abuse of discretion. See Chambers at 127. An abuse of discretion is more than an error of
judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its
ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying this standard, a
reviewing court is precluded from simply substituting its own judgment for that of the trial court.
Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶10} Mr. Walker’s one-sentence pro se motion suggested a transfer of venue based
upon an alleged lack of jurisdiction in Ohio, rather than a request for the application of the
doctrine of forum non conveniens. The conclusion of the trial court’s order reflects as much,
stating: “The [c]ourt finds that defendants have timely asserted the defense of improper venue,
that there is no proper forum for trial in this state, and that the proper forum for trial is
Mecklenburg County, North Carolina.” (Emphasis added.) The trial court’s analysis, however,
applies the balancing test required by the doctrine of forum non conveniens, which assumes
proper venue existed in the court where the complaint was filed. To the extent that the order 5
reflects a conclusion that there is a lack of jurisdiction in Ohio, it is incongruous with the trial
court’s own analysis. The analysis by the trial court in fact notes that “[w]hile venue may be
proper under Civ.R. 3(B)(12), the court [finds] that the doctrine of forum non[]conveniens is
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[Cite as All Pro Freight Sys., Inc. v. Walker, 2019-Ohio-321.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
ALL PRO FREIGHT SYSTEMS INC. C.A. No. 18CA011337
Appellants
v. APPEAL FROM JUDGMENT ENTERED IN THE MARVIN WALKER COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellee CASE No. 18CV194155
DECISION AND JOURNAL ENTRY
Dated: February 4, 2019
TEODOSIO, Presiding Judge.
{¶1} All Pro Freight Systems, Inc., and its owner, Chris Haas (collectively, “All Pro”),
appeal the order of the Lorain County Court of Common Pleas finding that there was no proper
forum for trial in Ohio, staying the action, and providing All Pro sixty days to recommence the
action in North Carolina. We reverse and remand.
I.
{¶2} In January 2018, All Pro filed its complaint against Marvin Walker and Day
Runner, Inc., for breach of contract and promissory estoppel. The complaint alleged the
following facts.
{¶3} All Pro Freight Systems, Inc., is an Ohio corporation with its principal place of
business in Lorain County, and its owner, Chris Hass, has his principal place of residence in
Florida. Day Runner, Inc., is a North Carolina corporation, and its owner, Marvin Walker, is a
resident of North Carolina. Day Runner was intended to operate as a private, on-demand small 2
cargo carrier and messenger service utilizing voluntary independent contractors who would be
on-call during hours of the contractor’s choosing. All Pro intended to have exclusive rights to
operate Day Runner in the Cleveland, Ohio, and Orlando, Florida markets. In August, 2017, All
Pro loaned Mr. Walker and Day Runner $50,000.00 to pay for a software application that was to
be utilized by the business. After the funds had been transferred, Mr. Walker informed Mr. Haas
that he was “moving in another direction” and was no longer interested in doing business with
All Pro. He further acknowledged that the funds had been loaned and represented that he would
return the money. After several months of waiting, All Pro filed its complaint for breach of
contract and promissory estoppel.
{¶4} Subsequent to service having been perfected upon the defendants, All Pro filed its
motion for default judgment. On April 19, 2018, at a hearing on the motion, the trial court
granted the defendants until May 21, 2018, to respond to the complaint. That same day, Mr.
Walker filed a motion to transfer venue to Charlotte, North Carolina. The motion, in its entirety,
states: “I am requesting to have this case be heard in Charlotte[,] NC[,] as it isn’t the right
jurisdiction since all parties reside and transactions occurred in North Carolina.” All Pro
responded with a brief in opposition, and on May 17, 2018, the trial court, after applying the
doctrine of forum non conveniens, entered an order on Mr. Walker’s motion to transfer venue
stating:
1. The [c]ourt finds that defendants have timely asserted the defense of improper venue, that there is no proper forum for trial in this state, and that the proper forum for trial is Mecklenburg County, North Carolina.
2. Therefore, this Action is ordered STAYED. Plaintiffs are given sixty days to recommence this action in Mecklenburg County, North Carolina, or suffer dismissal without prejudice. 3
{¶5} All Pro now appeals, raising two assignments of error. The assignments of error
have been consolidated for the purposes of our review.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED BY RULING IT WAS NOT A PROPER FORUM.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED BY DISMISSING THE CASE PURSUANT TO THE DOCTRINE OF FORUM NON CONVENIENS.
{¶6} In its first assignment of error, All Pro argues the trial court erred in ruling that
Ohio was not a proper forum. In its second assignment of error, All Pro argues the trial court
erred in its application of the doctrine of forum non conveniens. We agree on both fronts.
{¶7} In Chambers v. Merrell-Dow Pharmaceuticals, Inc., 35 Ohio St.3d 123 (1988),
the Supreme Court of Ohio recognized that in applying the doctrine of forum non conveniens, an
Ohio court “may resist imposition upon its jurisdiction even when jurisdiction is authorized by
the letter of a general venue statute.” Id. at 126. “The doctrine of forum non conveniens, unlike
Civ.R. 3(D), assumes that proper jurisdiction and venue lie in the court the plaintiff has chosen,
but that there is also another forum in which the defendant may be sued.” Alexander v.
Chandley, 113 Ohio App.3d 435, 437 (9th Dist.1996), citing Chambers at 126.
{¶8} “The common-law doctrine of forum non conveniens is committed to the sound
discretion of a court of general jurisdiction, and may be employed pursuant to the inherent
powers of such court to achieve the ends of justice and convenience of the parties and
witnesses.” Chambers at paragraph one of the syllabus. “[T]he determination must be based on
a balancing of all relevant public and private factors, including the ease of access to evidence 4
including witnesses, the local interest in having local controversies decided at home, and the
appropriateness of litigating in a forum familiar with the applicable law.” Alexander at 437,
citing Chambers at 126-127. “A defendant who moves to dismiss on forum non conveniens
grounds has the burden of producing sufficient evidence to enable the court to balance these
competing interests.” Id. at 437-38, citing Salabaschew v. TRW, Inc., 100 Ohio App.3d 503, 507
(8th Dist.1995). “[U]nless the balance is strongly in favor of the defendant, the plaintiff’s choice
of forum should rarely be disturbed.” United Capital Ins. Co. v. Brunswick Ins. Agency, 144
Ohio App.3d 595, 601 (9th Dist.2001), quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508
(1947).
{¶9} We review a trial court’s decision applying the doctrine of forum non conveniens
for an abuse of discretion. See Chambers at 127. An abuse of discretion is more than an error of
judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its
ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying this standard, a
reviewing court is precluded from simply substituting its own judgment for that of the trial court.
Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶10} Mr. Walker’s one-sentence pro se motion suggested a transfer of venue based
upon an alleged lack of jurisdiction in Ohio, rather than a request for the application of the
doctrine of forum non conveniens. The conclusion of the trial court’s order reflects as much,
stating: “The [c]ourt finds that defendants have timely asserted the defense of improper venue,
that there is no proper forum for trial in this state, and that the proper forum for trial is
Mecklenburg County, North Carolina.” (Emphasis added.) The trial court’s analysis, however,
applies the balancing test required by the doctrine of forum non conveniens, which assumes
proper venue existed in the court where the complaint was filed. To the extent that the order 5
reflects a conclusion that there is a lack of jurisdiction in Ohio, it is incongruous with the trial
court’s own analysis. The analysis by the trial court in fact notes that “[w]hile venue may be
proper under Civ.R. 3(B)(12), the court [finds] that the doctrine of forum non[]conveniens is
applicable to this case and hereby invokes the same.” (Emphasis sic.)
{¶11} As we have noted above, for the doctrine of forum non conveniens to be applied,
a defendant has the burden of producing sufficient evidence to enable the court to balance all
relevant public and private factors. Alexander at 437. In addition, the balance must weigh
strongly in favor of the defendant for a trial court to disturb the plaintiff’s choice of forum.
United Capital at 601. Mr. Walker’s motion failed to provide sufficient evidence that would
have allowed the trial court to engage in the requisite balancing of the competing interests. As a
consequence, the trial court abused its discretion in applying the doctrine of forum non
conveniens.
{¶12} All Pro’s first and second assignments of error are sustained.
III.
{¶13} All Pro’s first and second assignments of error are sustained. The order of the
Lorain County Court of Common Pleas is reversed and remanded for proceedings consistent
with this opinion.
Judgment reversed and remanded.
There were reasonable grounds for this appeal. 6
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
THOMAS A. TEODOSIO FOR THE COURT
CARR, J. HENSAL, J. CONCUR.
APPEARANCES:
STEVEN B. BARANEK, Attorney at Law, for Appellants.
MARVIN WALKER, pro se, Appellee.