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"The defendant in a breach of contract case did not waive its right to enforce the forum-selection clause in its contracts with the plaintiff, the Fifth District Appellate Court held.<br /><br />In an unpublished order filed Tuesday, the appeals panel affirmed the ruling of the Crawford County Circuit Court that granted Putnam Energy LLC&rsquo;s motion to dismiss Superior Well Services, Inc.&rsquo;s amended complaint.<br /><br />Justice James Wexstten delivered the order and Justices Richard Goldenhersh and Bruce Stewart concurred.<br /><br />In October 2011, Putnam Energy, an Indiana-based power company whose principal office is located in Westmont, Ill., sued Superior Well Service, a Delaware corporation headquartered in Pennsylvania, for breach of contract.<br /><br />The suit alleged that the parties had entered into a series of contracts between 2008 and 2010 for Superior to provide services to some of Putnam&rsquo;s natural gas wells in Crawford County and that Superior had breached the contracts in regards to two of those wells.<br /><br />Putnam asserted that Crawford County was the proper venue for the complaint &ldquo;because a substantial part of the events giving rise to the claim occurred within Crawford County where Putnam's gas reservoirs are located.&rdquo;<br /><br />The complaint, according to the appellate court order, did not include copies of the contracts at issue and did not detail any of the terms and conditions of the contracts.<br /><br />Superior in December 2011 filed a motion to dismiss the suit, claiming that Putnam failed to comply with Section 2-606 of the Code of Civil Procedure.<br /><br />This section states that if a claim is based on a written instrument, a copy of that written instrument must be attached to the pleading. It also notes that if that instrument is not accessible, the pleader must attach an affidavit stating such.<br /><br />Putnam in January 2012 filed a response to Superior's motion to dismiss, as well as an affidavit from its majority owner that noted the contracts at issue had been destroyed in a fire.<br /><br />After Putnam filed an amended complaint with the affidavit attached, Superior sought dismissal, claiming that Putnam failed to state a cognizable breach of contract claim.<br /><br />It also argued that while the contracts apparently were destroyed in a fire, Putnam still needed to detail the terms of the parties&rsquo; contracts in order to support its claim.<br /><br />Superior&rsquo;s motion to dismiss, the appellate court order notes, &ldquo;characterized Putnam&rsquo;s amended complaint as &lsquo;couched in terms of tort, as opposed to contract.&rsquo;&rdquo;<br /><br />In its response to the defendant&rsquo;s motion to dismiss, Putnam asserted that it was &ldquo;impossible&rdquo; to allege the specific terms of the contracts because it did not have copies of them.<br /><br />The circuit court in May 2012 denied the defendant&rsquo;s motion to dismiss, saying that Superior&rsquo;s argument that Putnam failed to allege the contracts&rsquo; terms could be resolved through a bill of particulars.<br /><br />The following month, Superior filed a motion seeking summary judgment or in the alternative, dismissal without prejudice.<br /><br />The motion also noted that Superior had obtained copies of the contracts at issue and that each of them contained a provision providing that any litigation would be tried in the Court of Common Pleas of Indiana County in Pennsylvania.<br /><br />While Superior argued that the forum-selection clause in its contracts was valid and enforceable in Illinois, Putnam asserted that Superior&rsquo;s claim that Crawford County was not the proper venue was not timely under Section 2-104.<br /><br />This section states in part that objections over venue are waived unless a motion to transfer is made before defendant is required to appear.<br /><br />At a hearing on the motion to dismiss, Superior indicated that it would have tried to enforce the forum-selection clause in the contracts sooner, but that the contracts were not available. It also claimed that its right to enforce the clause was not a &ldquo;venue issue.&rdquo;<br /><br />Putnam disagreed, and again argued that Superior had waived its argument over venue, as well as its right to enforce the forum-selection clause under contract law principles.<br /><br />The circuit court dismissed Putnam&rsquo;s amended complaint without prejudice and determined that Superior was entitled to have the claim litigated in Pennsylvania based on the terms of the parties&rsquo; contract.<br /><br />On appeal, Putnam argued that the lower court erred in dismissing its complaint on the basis that Superior didn&rsquo;t make a venue argument at the beginning of the case under Section 2-104.<br /><br />The company also argued that regardless of whether the issue in its case is analyzed under Illinois&rsquo; venue and jurisdiction statues or contract law, the &ldquo;result is the same.&rdquo;<br /><br />&ldquo;We disagree,&rdquo; Justice James Wexstten wrote for the appeals panel. &ldquo;We also note that Putnam raises its jurisdictional argument for the first time on appeal.&rdquo;<br /><br />Wexstten noted that the appellate court agreed with Superior&rsquo;s argument that it&rsquo;s right to enforce the forum-selection clause was different than its right to object to venue under Section 2-104.<br /><br />&ldquo;Here, whether Crawford County is a statutorily authorized venue under Illinois law is not the underlying issue, and Superior did not abandon its contractual right to enforce the forum-selection clause by failing to raise an objection pursuant to section 2-104,&rdquo; Wexstten wrote for the panel.<br /><br />He explained in the order that &ldquo;Section 2-104 clearly contemplates the filing of a motion to transfer but Illinois's statutory transfer provisions &lsquo;apply only to transfers within the State of Illinois&rsquo; &hellip; Section 2-104 is thus inapplicable.&rdquo;<br /><br />The appellate court also disagreed with Putnam&rsquo;s arguments that Superior had waived its right to enforce the forum-selection clause under Section 2-301, which governs objections to jurisdiction, and the general principles of contract law.<br /><br />&ldquo;Under the circumstances, Superior did not demonstrate conduct constituting an implied waiver of its right to enforce the forum-selection clause contained in the parties' contracts,&rdquo; Wexstten wrote. &ldquo;We accordingly affirm the circuit court's judgment dismissing Putnam's amended complaint without prejudice to filing suit in Pennsylvania.&rdquo;"^^<http://www.w3.org/2001/XMLSchema#string>
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