ROGER WILDER, INDIVIDUALLY AND D/B/A R . WILDER SALES ; ROGER WILDER AND DENNIS KELLEY, INDIVIDUALLY AND D/B/A R&D MIDWEST PET SUPPLY V ABSORPTION CORPORATION REAL PARTY IN INTEREST AND HON . JOSEPH BAMBERGER, JUDGE BOONE CIRCUIT COURT
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2002-SC-0338-MR
ROGER WILDER, INDIVIDUALLY AND
D/B/A R. WILDER SALES;
ROGER WILDER AND DENNIS KELLEY,
INDIVIDUALLY AND D/B/A
R&D MIDWEST PET SUPPLY
V
APPELLANTS
APPEAL FROM COURT OF APPEALS
NO. 2002-CA-19
BOONE CIRCUIT COURT NO . 95-CI-547
ABSORPTION CORPORATION
AND
HON . JOSEPH BAMBERGER, JUDGE
BOONE CIRCUIT COURT
REAL PARTY IN INTEREST
APPELLEES
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
REVERSING
This appeal is from an order of the Court of Appeals granting a writ of
mandamus which directs the Boone circuit judge to vacate his May 29, 2001 order
which had allowed the claim by Wilder and Kelley against Absorption Corporation to be
submitted to binding arbitration in this Commonwealth .
The questions presented are whether the arbitration/choice of forum clause in
this contract is unreasonable ; whether mandamus is the proper means to review factual
determinations made by the circuit judge ; whether the circuit judge correctly found that
enforcement of the arbitration/choice of forum clause would result in manifest injustice ;
and whether arbitration held in the Commonwealth of Kentucky pursuant to a court
order may be enforced by the courts of Kentucky.
A long procedural history has brought this case to this point. It includes two
separate appeals and two opinions from the Court of Appeals.
Absorption Corporation is a Nevada corporation with its principal place of
business located in Washington state . It operates throughout the nation selling several
lines of consumer products among which are a line of speciality pet care products,
including several types of cat litter. In July 1993, Absorption entered into a written sales
representative agreement with Roger Wilder, d/b/a R. Wilder Sales . Under the terms of
the agreement, Wilder was to sell Absorption's products to pet supply stores in
Michigan, Indiana, Ohio and Kentucky. Wilder's brother-in-law, Dennis Kelley, joined
him and became a sales representative for Absorption . Togther, Wilder and Kelley
formed a business entity called R & D Midwest Pet Supplies . Both men worked out of
their homes in Boone County. After the sales territory was established, Absorption
terminated the contract with Wilder and Kelley in 1995 and began selling directly from
its Washington state location into the territory previously served by the two sales
representatives .
In 1995, Wilder and Kelley filed suit against Absorption in circuit court claiming
breach of oral contracts, breach of the written agreement, fraud and misrepresentation
and unfair trade practices. Absorption Corporation moved to dismiss the claim based
on an arbitration/choice of forum clause which allegedly required all disputes to be
submitted to arbitration in the state of Washington. The circuit judge denied the motion .
Several years into the litigation, Absorption Corporation filed a renewed motion to
compel arbitration. On April 30, 1998, the circuit judge denied that motion as well,
holding that the arbitration/choice of forum clause in the contract was unreasonable and
unenforceable and ordered the parties to proceed in circuit court.
In the first appeal by Absorption Corporation, a panel of the Court of Appeals
reversed the April 30, 1998 order of the circuit judge and remanded for an application of
the test set forth in Prudential Resources Corp . v. Plunkett , Ky.App ., 583 S .W.2d 97
(1979) . See Absorption Corp. v. Wilder, 1998-CA-1358-MR. Neither party sought
discretionary review from this Court .
On remand, the circuit judge referred the matter to a Master Commissioner who
conducted an evidentiary hearing as directed by the Court of Appeals and considered
the four factors in Plunkett , supra , concerning the enforcement of a forum selection
clause. Those factors are: 1) whether the clause was freely negotiated ; 2) whether the
specific forum is a seriously inconvenient place for trial; 3) whether enforcement would
contravene a strong public policy of the forum in which the suit is brought; and 4)
whether Kentucky has more than a minimal interest in the lawsuit.
The Master also considered, as directed by the Court of Appeals, that it was
necessary to evaluate the convenience of the parties and witnesses . In doing so, he
carefully reviewed the choice of forum by Wilder and Kelley ; the situs of the material
events; the relative ease of access to sources of proof; the convenience of the
witnesses; and the convenience of the parties litigating in the respective forums .
The Master found that Absorption is a publicly held corporation organized under
the laws of the state of Nevada, with its principal place of business located in
Bellingham, Washington ; that Wilder and Kelley were sales representatives for a pet
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bedding product produced by Absorption ; that a lengthy negotiation ensued from 1990
until 1993 between the parties ; that the final product of the negotiations was a contract
dated April 1, 1993, with the contract ultimately completed by July 28, 1993; that the
contract was signed by Wilder only after Absorption advised him that if he failed to sign
that Absorption would get someone else as their representative ; and that the final
contract contained a choice of forum clause and arbitration provision which is the
subject of this action .
Following the requirements of Plunkett , the Master determined that the choice of
forum clause was freely negotiated and that the enforcement of it does not contravene
the public policy of Kentucky ; that Kentucky had more than a minimal interest in the
action insofar as it involved two of its citizens and that a majority of the customers, who
are key witnesses, are residents ; and that Kentucky had the most significant
relationship to the transactions in this case. He reported to the circuit judge that
litigation in the state of Washington would be the "death knoll" of the plaintiff's action .
On May 29, 2001, the circuit judge confirmed the report of the Master
Commissioner that enforcement of a choice of forum clause in this case would result in
manifest injustice to Wilder and Kelley and this consideration outweighs the agreement
of the parties to accept arbitration in the state of Washington . He ordered that the claim
by Wilder and Kelley be submitted to binding arbitration within the Commonwealth of
Kentucky .
In the second appeal by Absorption Corporation, a different panel of the Court of
Appeals granted the requested writ of mandamus . It determined that Absorption
Corporation had demonstrated its entitlement to a review on the merits because no
appeal could adequately redress the loss of its contractually bargained for right to
arbitrate all disputes concerning the contract in the state of Washington. The Court of
Appeals found that the parties were bound by the clear and legitimate provisions of the
arbitration/choice of forum clause in their agreement . Accordingly, it directed the circuit
judge to vacate his order entered on May 29, 2001 . This appeal followed .
Wilder and Kelley argue that the arbitration clause in the contract is
unreasonable and enforcement would result in manifest injustice . They ask this Court
to reverse and set aside the decision of the Court of Appeals and allow the underlying
action to proceed to arbitration as ordered by the circuit court. In the alternative, they
request the arbitration clause be invalidated in total and that we remand this case to the
circuit court so that it may proceed under the Kentucky Rules of Civil Procedure. Wilder
and Kelley contend that mandamus is not proper for the review of a circuit court's
factual determination . They also claim that the circuit court correctly found that it would
be a manifest injustice for them to travel to the state of Washington to litigate or
arbitrate . Finally, Wilder and Kelley ask this Court to review the question of whether an
arbitration held in the state of Kentucky pursuant to a court order may be enforced by
the courts of Kentucky.
Absorption Corporation responds that a decision refusing to enforce a forum
selection clause is reviewable by original action because effective review cannot be
obtained by appeal from a final judgment. It asserts that arbitration in the state of
Washington is not inconvenient unless it would effectively deny the plaintiffs their day in
court. Absorption maintains that the alleged inconveniences to the plaintiffs and the
witnesses are not sufficient reasons to invalidate the contractual choice of forum or
arbitration clauses. It contends that the choice of forum and arbitration provisions were
not the result of overreaching or boilerplate terms. Absorption argues that the plaintiffs
claim of fraud is no excuse to enforceability of a forum selection clause.
After considering the arguments of both parties, we must conclude that the Court
of Appeals erred in granting the writ of mandamus sought by Absorption Corporation .
For purposes of this opinion we treat writs of mandamus and writs of prohibition in the
same manner. A writ of mandamus is an extraordinary remedy, one which should not
be issued lightly. University of Louisville v. Shake, Ky., 5 S.W .3d 107 (1999). Such a
remedy will be granted only upon a showing that: 1) the lower court is proceeding or is
about to proceed outside its jurisdiction and there is no adequate remedy by appeal, or
2) the lower court is about to act incorrectly, although within its jurisdiction, and there
exists no adequate remedy by appeal or otherwise and great injustice and irreparable
injury would result. Kentucky Labor Cabinet v. Graham , Ky., 43 S.W.3d 247 (2001).
The requirement of showing that there is no adequate remedy by appeal
emphasizes that a writ is an extraordinary remedy used to shield a party from injustice,
against which there is no other adequate remedy and to preserve the ordinary
administration of the laws . Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W .
178 (1916), affd, 244 U .S. 68, 37 S . Ct. 599, 61 L . Ed . 997 (1917). It has not at any
time been held that mandamus will issue in every instance and on every occasion
merely because the court is allegedly proceeding out of its jurisdiction . Ordinarily when
a court is proceeding out of its jurisdiction, there exists an ample and adequate remedy
by appeal. In such cases the writ has been denied .
We disagree with the conclusion reached by the Court of Appeals that
Absorption Corporation does not have an adequate remedy by appeal . Even if the
circuit court is operating outside of its jurisdiction, the moving party is still not entitled to
the remedy of a writ absent a showing that it has no adequate remedy by appeal from
an unfavorable ruling . Graham , supra . Here, no such showing has been made and the
reason stated by the Court of Appeals is insufficient .
The decision of the circuit judge in upholding the report of the Master
Commissioner was correct insofar as it held that enforcement of the arbitration clause
would produce a manifest injustice and would result in an inconvenience of forum so
serious as to deprive Wilder and Kelley of their opportunity for a day in court. The
choice of forum clause presented an impossible situation .
The evidentiary hearing held by the Master involved live testimony from
witnesses and although Absorption was not present at the hearing, they were ably
represented by local counsel. The Court appointed Master Commissioner is an
experienced and competent attorney. Further trial of this matter would only be
redundant. The Court of Appeals was incorrect in disturbing the findings of fact as
presented to the circuit judge and endorsed by him.
The inconvenience and unreasonableness of the choice of forum clause results
in a manifest injustice, and this consideration is greater than the contractual agreement
to accept arbitration in the state of Washington.
The decision of the Court of Appeals is reversed and the order of the trial judge
is reinstated . The litigation shall be submitted to binding arbitration within the
Commonwealth of Kentucky.
Graves, Johnstone and Stumbo, J .J . concur. Lambert, C.J., dissents without
opinion. Cooper, J., dissents by separate opinion . Keller, J., dissents and would affirm
the Court of Appeals in accordance with the legal analysis contained in Justice
Cooper's dissenting opinion, but does not join that opinion because he disagrees with
dicta contained therein that ascribes improper motivations to those who have reached
different legal conclusions .
COUNSEL FOR APPELLANTS :
Marc Douglas Dietz and
Dennis R. Williams
Adams, Stepner, Woltermann & Dusing
40 West Pike Street
P.O . Box 861
Covington, KY 41012
COUNSEL FOR APPELLEE ABSORPTION CORPORATION :
Joseph E . Conley, Jr.
Buechel, Conley & Schutzman
25 Crestview Hills Mall Road, Suite 104
Covington, KY 41017-2539
COUNSEL FOR APPELLEE HON . JOSEPH BAMBERGER :
Joseph Bamberger
Boone County Circuit Judge
Boone County Administration Bldg ., Room 209
2950 Washington Square
Burlington, KY 41005
RENDERED : JUNE 12, 2003
TO BE PUBLISHED
,$ixyrrntP tourf of ~rzfurkV
2002-SC-0338-MR
ROGER WILDER, INDIVIDUALLY AND
D/B/A/ R. WILDER SALES;
ROGER WILDER AND DENNIS KELLEY
INDIVIDUALLY AND D/B/A
R&D MIDWEST PET SUPPLY
V.
APPELLANTS
APPEAL FROM COURT OF APPEALS
NO. 2002-CA-19
BOONE CIRCUIT COURT NO . 95-CI-547
ABSORPTION CORPORATION
REAL PARTY IN INTEREST
AND
HON . JOSEPH BAMBERGER,
JUDGE, BOONE CIRCUIT COURT
APPELANTS
DISSENTING OPINION BY JUSTICE COOPER
I . Forum-Selection Clause.
Appellants Roger Wilder and Dennis Kelley are residents of Boone County,
Kentucky. Appellee Absorption Corporation is a Nevada corporation whose principal
place of business is in Bellingham, Washington . Wilder's principal and long-time
occupation is that of a manufacturer's representative in the automotive aftermarket
business . Operating as "d/b/a R. Wilder Sales," he is an agent for various automotive
parts manufacturers, selling their products to automotive garages and retail parts
distributors within the general area of Kentucky, Indiana, and Ohio . He is no stranger to
agency relationships or agency contracts, admitting, "I had reviewed a number of
contracts and had some contracts with some of the manufacturers that I represented ."
In fact, during his negotiations with Absorption with respect to the contract at issue in
this case, Wilder sent Absorption's representatives a standard form automotive agency
contract as a guide to use in drafting the agency contract in question .
In 1990, while attending an automotive trade show in Chicago, Illinois, Wilder
noticed and became interested in two oil absorbent products manufactured by
Absorption and marketed under the brand names of "Absorbent GP" and "Absorbent
W." Wilder thought he could sell these products to automotive garages as clean-up
agents. Because "Absorbent W" will absorb spilled oil or gasoline without also
absorbing the water with which the oil or gasoline might become mixed, he also thought
he could sell that product to entities such as fire departments that clean up hazardous
spills . He also noticed Absorption's advertisement of a new "cat litter" product known as
"CareFRESH" that both absorbs and deodorizes liquid waste. Wilder approached
Absorption's representative at the trade show about selling their oil absorption products
and was ultimately given an agency contract to sell those products in his existing
territory of Kentucky, Indiana, and Ohio .
In 1991, Wilder formed a separate company, R&D Midwest Pet Supply, with his
brother-in-law, Dennis Kelley, and began negotiations to obtain an agency agreement
with Absorption to sell "CareFRESH ." Negotiations over the contract continued for
almost two years while Wilder and Kelley "pioneered" the product at pet shops and
veterinary offices in Kentucky, Indiana, and Ohio. At one point during the negotiations,
Wilder requested that Absorption award him the entire sales territory east of the
Mississippi River . Ultimately he was granted a territory consisting of Kentucky, Indiana,
Ohio, and Michigan . The final 24-page contract was forwarded to Wilder by Absorption
in March, 1993. After making some interlinear alterations, Wilder signed the contract on
March 30, 1993, and returned it to Absorption. On July 12, 1993, after further
interlineations, Absorption's operations manager, Douglas Ellis, signed the contract on
behalf of Absorption and returned it to Wilder for approval of the changes. Wilder
signed the contract again on July 28, 1993, and returned it to Absorption as a
completed contract . Wilder also initialed every page of the contract, including pages 12
and 13, which contain paragraphs 14 and 15, viz:
14. ARBITRATION PROVISION
In the event of any disagreement or differences between the parties
arising out of or in connection with this Agreement, each party agrees that
if such disagreement or difference cannot be amicably settled, such
disagreement will be referred to arbitration in Bellingham, Washington, in
accordance with the rules in effect of the American Arbitration Association .
15. CHOICE OF LAW AND CHOICE OF FORUM
A. This Agreement and the relative rights and duties of the parties hereto
shall be interpreted in accordance with the laws of the State of
Washington without regard to Washington's choice of law rules . Any
dispute between the parties hereto arising in whole or in part as a
consequence of the execution of this Agreement, shall also be governed
by the law of the State of Washington without regard to Washington's
choice of law rules .
B. Without limiting in any way the duties of the parties to arbitrate any
disagreement of differences, the parties hereby agree that all litigation
between them arising in whole or in part out of this Agreement, or in whole
or in part as a consequence of the execution of this Agreement, shall be
brought in the courts of the County of Whatcom, State of Washington .
REPRESENTATIVE [Wilder] hereby consents to personal jurisdiction
before such courts . Provided, however, that an action or ancillary
proceedings to enforce a judgement [sic] obtained by a party in the said
Washington court may be in any appropriate forum .
This was no adhesion contract . Wilder negotiated numerous provisions during
the two years of negotiations . For example, at Wilder's request, Absorption amended
the contract to include a termination provision, to grant him "exclusive" territorial rights,
and to delete a provision that would have required him to travel to Bellingham,
Washington, upon request, to attend sales meetings and consultations . In contrast,
Wilder did not request that paragraphs 14 and 15 be altered or deleted . Nor did he
claim in the complaint filed in the underlying action that he was fraudulently induced to
accept the arbitration and forum-selection provisions .
Not surprisingly, the trial court found that "[t]he choice of forum clause was freely
negotiated between the parties," and that "[e]nforcement of the choice of forum clause
does not contravene the strong public policy of the Commonwealth of Kentucky."
Remarkably, however, the trial court then concluded (and the majority of this Court now
agrees) that to require Wilder to abide by a "freely negotiated" provision that "does not
contravene the strong public policy" of this Commonwealth would result in "manifest
injustice ." No reason for such a conclusion is offered other than that Wilder and Kelley'
and some of their witnesses are residents of Kentucky. Of course, Absorption's officials
and all of its witnesses are residents of Washington . No doubt, one side of this litigation
is going to be inconvenienced no matter which forum is selected . Absorption and
Wilder resolved this issue between themselves by agreeing that any litigation over this
1 Although Kelley participated in some of the contract negotiations, neither he nor "R&B
Midwest Pet Supply" is a party to the contract . Kelley did not sign the contract and
neither he nor R&B is mentioned anywhere in the contract . The only entities identified
as parties to the contract are Absorption Corporation and "R. Wilder Sales ." The only
signatories were Ellis, who signed on behalf of Absorption, and Wilder, who signed as
"Roger V. Wilder, Pres ., R . Wilder Sales ."
contract would be conducted in the state of Washington . It hardly rings of "manifest
injustice" to enforce a forum-selection clause to which Wilder agreed during lengthy and
arms-length negotiations .
See Med. Legal Consulting Serv., Inc. v. Covarrubias , 648
F .Supp . 153, 155 (D.Md. 1986) ("plaintiff is entitled to the benefit of its bargain which
includes the forum-selection clause and which enables plaintiff to avoid litigation all over
the country.") .
In Prezocki v . Bullock .Garages, Inc. , Ky., 938 S .W.2d 888 (1997), we adopted
es,
the test stated in Section 80 of the Restatement (Second) of Conflict of Laws (A.L.I .
1971) :
The parties' agreement as to the place of the action cannot oust a
state of judicial jurisdiction but such an agreement will be given effect
unless it is unfair or unreasonable.
938 S.W.2d at 889; see also Prudential Resources Corp . v. Plunkett , Ky. App ., 583
S.W.2d 97, 98-99 (1979). The issue is not whether it would be inconvenient for Wilder
to litigate his case in Washington but whether it is "unfair or unreasonable" to require
him to do so . Thus, the majority's failure to justify a finding that the forum-selection
clause here is "unfair" or "unreasonable" is baffling .
Remember, it was Wilder who approached Absorption in Chicago desiring an
agency relationship . Wilder knew that Absorption's home office was in Bellingham,
Washington, and signed a contract agreeing that any litigation over the contract would
be conducted in Washington . While it may be inconvenient for him to do so, Wilder was
aware of that potential inconvenience when he negotiated and signed the contract .
Inconvenience does not equate with unfairness and unreasonableness . From
Absorption's point of view, the clause is both fair and reasonable, and being required to
litigate in Kentucky is just as inconvenient for it as litigating in Washington would be for
-5-
Wilder. While Wilder may have signed the contract in Kentucky, Absorption's officer,
Ellis, signed it in Washington . Also worrisome is the specter of Wilder serving notice on
Absorption to produce for deposition in Kentucky all of its employees who were involved
in the contract negotiations or who are alleged to have participated in the breach .
Compare Gevedon v. Grigsby, Ky., 303 S.W.2d 282, 283-84 (1957).
In upholding a contractual provision selecting England as the forum for litigation
between two international shipping companies, the United States Supreme Court
recognized the heavy burden of proof placed on the party seeking to avoid a forumselection clause :
The correct approach would have been to enforce the forum clause
specifically unless Zapata could clearly show that enforcement would be
unreasonable and unjust, or that the clause was invalid for such reasons
as fraud or overreaching .
We are not here dealing with an agreement between two Americans to
resolve their essentially local disputes in a remote alien forum . In such a
case, the serious inconvenience of the contractual forum to one or both of
the parties might carry greater weight in determining the reasonableness
of the forum clause. The remoteness of the forum might suggest that the
agreement was an adhesive one, or that the parties did not have the
particular controversy in mind when they made their agreement ; yet even
there the party claiming should bear a heavy burden of proof.
[I]t should be incumbent on the party seeking to escape his contract to
show that trial in the contractual forum will be so gravely difficult and
inconvenient that he will for all practical purposes be deprived of his day in
court . Absent that, there is no basis for concluding that it would be unfair,
unjust, or unreasonable to hold that party to his bargain .
Bremen v. Zapata Off-Shore Co . , 407 U .S. 1, 15, 17-18, 92 S.Ct. 1907, 1916-17, 32
L.Ed .2d 513 (1972) .
The trial court's finding in the underlying action that to enforce the forumselection provision would be the "death knoll" of this litigation is a gross exaggeration .
Is it because Absorption is located in Washington as opposed to, e .g . , Michigan?
Would Colorado be too far away? Texas? The fact is that in this age of rapid air transit
it is simplistic to suggest that any forum in the continental United States is so far away
as to constitute a "death knoll" for someone who truly wishes to litigate a valid claim .
Cf. Panavision Int'I, L.P. v. Toeppen , 141 F .3d 1316, 1323 (9th Cir. 1998) ("[I]n this era
of fax machines and discount air travel requiring [an Illinois resident] to litigate in
California is not constitutionally unreasonable.") (quotation omitted) .
The Court of Appeals for the Second Circuit undertook an extensive analysis of
this issue in Effron v. Sun Line Cruises, Inc . , 67 F.3d 7 (2d Cir. 1995) . Effron enforced a
forum-selection clause in a contract requiring an American plaintiff to litigate her claim in
Greece . Id. at 10-11 . In so holding, it rejected the plaintiffs claim that she would be
"effectively deprive[d] " of "her day in court" by being required to litigate in Greece . Id .
at 11 .
Although appellee would prefer the relative comfort of a court in New York
or Florida, she agreed to have her claim adjudicated in Greece . This
agreement should not be negated unilaterally by plaintiffs conclusory
assertions that she cannot afford to travel to Greece, that she would be
afraid to stay at a strange city, that she does not know any Greek lawyers,
etc . Unsupported statements such as these do not meet the "heavy
burden of proof' required to set aside a forum-selection clause on the
ground of inconvenience .
Id . See also Vimar Seg uros y Reaseguros, S .A. v. MN Sky Reefer, 515 U .S. 528, 539,
115 S .Ct. 2322, 2329, 132 L .Ed .2d 462 (1995) (enforcing forum-selection clause that
required Massachusetts plaintiff to arbitrate in Japan) ; Carnival Cruise Lines, Inc . v.
Shute , 499 U .S . 585, 595, 111 S.Ct. 1522, 1528, 113 L.Ed.2d 622 (1991) (enforcing
forum-selection clause that required residents of state of Washington to litigate in
Florida) .
Here, Wilder sought employment with a corporation knowing that its corporate
headquarters were in Washington . He freely signed an employment contract knowing
that it required any contractual disputes to be resolved in Washington . As the United
States Supreme Court observed in Shute, supra, the forum-selection clause also likely
allowed Wilder to secure better terms, "reflecting the savings that [Absorption] enjoys by
limiting the fora in which it may be sued." Id . at 594, 111 S .Ct. at 1527. Wilder
negotiated other terms of the contract, and chose to leave this term intact . His only
claim is that it would be more convenient to litigate in his own "back yard ." Incredibly,
only a few short months after the rendition of our unanimous opinion in Kentucky Farm
Bureau Mutual Insurance Co. v. Henshaw , Ky., 95 S .W.3d 866, 868 (2003) ("As the
contract established the relationship between the parties, and as there is a probability
that it will influence any subsequent litigation, enforcement of the choice-of-venue
clause is not unreasonable."), the majority of this Court is going to let him get away with
it.- I can only conclude that Absorption has just tasted some good old-fashioned
Kentucky "home cookin' ."
II . No Adequate Remedy .
As held by the Court of Appeals, "no appeal could adequately redress the loss of
[Absorption's] contractually bargained-for right to arbitrate all disputes pertaining to the
parties' contract in the state of Washington ." Court of Appeals slip op ., at 5 . If
Absorption cannot seek relief from the trial court's action by way of a petition for a writ,
then it has no remedy at all. It can never recover the cost and inconvenience of
arbitrating in Kentucky even if an appellate court should later determine that the matter
should have been arbitrated in Washington . See Bridgestone/Firestone v. McQueen ,
Ky.App ., 3 S .W .3d 366, 367 (1999) ("The relevance of arbitration and the right to invoke
it would be rendered essentially meaningless or moot if a party were required to go first
through the time and expense of litigation being then entitled to appellate review which may or may not determine that arbitration should indeed have been granted in
lieu of litigation .").
As the Court of Appeals also noted, the outcome of arbitration in Kentucky may
well be an award that no Kentucky court would have the jurisdiction to confirm because
Kentucky was not the contractually chosen situs for the arbitration . KRS 417 .200 ("The
making of an agreement described in KRS 417 .050 providing for arbitration in this state
confers jurisdiction on the court to enforce the agreement under this chapter and to
enter judgment on an award thereunder .") ; Tru Green Corp . v. Sampson , Ky. App., 802
S .W.2d 951, 952 (1991) ("The plain meaning of that statute is that the agreement,
wherever made, must provide for the arbitration itself to be in the Commonwealth in
order to confer subject matter jurisdiction on a Kentucky court") (emphasis in original) ;
see also Artrip v. Sammons Constr., Inc. , Ky. App ., 54 S .W.3d 169 (2001) .
Also needing attention is the standard of review applicable in the first
instance when a court is petitioned to grant a writ of prohibition or
mandamus to a lower adjudicatory body. The decision to grant or deny
the petition is committed to the sound discretion of the court.
Southeastern United Medigroup, Inc. v. Hughes , Ky., 952 S .W.2d 195, 199 (1997) . I
conclude that the Court of Appeals did not abuse its discretion in issuing the writ
requiring the trial court to dismiss the underlying action .
Accordingly, I dissent.
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