                                          2018 IL App (3d) 170020

                                Opinion filed March 14, 2018
     _____________________________________________________________________________

                                                   IN THE

                                    APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                     2018

     SLOAN BIOTECHNOLOGY                   )    Appeal from the Circuit Court
     LABORATORIES, LLC, an Illinois        )    of the 10th Judicial Circuit,
     Limited Liability Company,            )    Peoria County, Illinois.
                                           )
           Plaintiff-Appellant,            )
                                           )    Appeal No. 3-17-0020
           v.                              )    Circuit No. 16-MR-478
                                           )
     ADVANCED BIOMEDICAL                   )
     INCORPORATED, a Delaware              )
     Corporation,                          )    The Honorable
                                           )    Katherine Gorman Hubler,
           Defendant-Appellee.             )    Judge, presiding.
     ____________________________________________________________________________

           PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.
           Justices Lytton and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                  OPINION

¶1          Plaintiff, Sloan Biotechnology Laboratories, LLC (Sloan), brought a declaratory

     judgment action against defendant, Advanced Biomedical Incorporated (ABI), seeking a ruling

     from the trial court that Sloan was not in breach of its contract with ABI. Citing a forum

     selection clause in the parties’ contract, ABI filed motions to either transfer venue to the state

     court in Cuyahoga County, Ohio, or to dismiss the case. Following a hearing, the trial court

     granted ABI’s request and transferred venue to the Ohio state court. Sloan filed a motion to
     reconsider and asked the trial court to reverse its prior ruling or, in the alternative, to amend its

     prior ruling to show that the case had been dismissed rather than transferred. After a hearing, the

     trial court granted the motion to reconsider in part, reversed the prior ruling in its entirety, and

     entered an order dismissing Sloan’s complaint for declaratory judgment. Sloan appeals. We

     reverse the trial court’s judgment and remand for further proceedings.

¶2                                                  FACTS

¶3          Sloan was an Illinois limited liability company and had its principal place of business in

     Peoria, Illinois. ABI was a Delaware corporation and had its principal place of business in

     Dublin, Ohio. In March 2015, Sloan entered into an exclusive manufacturing agreement

     (manufacturing agreement) with ABI wherein Sloan agreed to manufacture a nonalcohol based

     hand sanitizer lotion and derivatives of that product for ABI. The manufacturing agreement

     incorporated by reference a prior nondisclosure agreement (NDA) that had been entered into

     between the parties in June 2014 (the 2014 NDA was entered into between Sloan and ABI’s

     predecessor and was later assigned to ABI). The following year, the parties entered into another

     NDA, which was substantially the same as the prior NDA. The manufacturing agreement and the

     two NDAs constituted the parties entire agreement (collectively referred to as the contract) for

     the purposes of this appeal.

¶4          In June 2016, Sloan filed the instant declaratory judgment action against ABI in the state

     trial court in Peoria County, Illinois. In addition to most of the information set forth above, Sloan

     alleged in its complaint that (1) it had performed all of its obligations under the parties’ contract

     and (2) ABI had delivered to Sloan a demand letter claiming that Sloan had breached the contract

     and demanding that Sloan take (or refrain from taking) certain actions. Sloan asked the trial court

     to enter a declaration that Sloan had not breached the contract. Copies of the parties’ contract


                                                        2
     (the manufacturing agreement and the two NDAs) and the demand letter were attached to the

     declaratory judgment complaint as supporting documents.

¶5          Of relevance to this appeal, the manufacturing agreement contained the following

     provisions:

                          “12.    CONFIDENTIALITY.

                          The parties hereto acknowledge and agree that the information contained

                   in this Agreement and all exhibits hereto is considered ‘Confidential Information’

                   as such term is defined in the June 17, 2014 Restatement of Non-Disclosure

                   Agreement between SLOAN and ABI (the ‘NDA Agreement’) and is governed

                   by the terms of such NDA Agreement. The parties further acknowledge and agree

                   that June 17, 2014 Restatement of NDA Agreement remains in full force and

                   effect and is hereby incorporated by reference as if fully set forth in this

                   Agreement.

                                                    ***

                          16.     GOVERNING LAW.

                          This Agreement shall be deemed made in Peoria, Illinois, and the validity

                   and interpretation thereof shall be governed by the laws of the state of Illinois

                   without regard to its conflict of law principles.”

     The manufacturing agreement did not, however, contain a forum selection clause.

¶6          Also of relevance to this appeal, the NDAs contained the following provisions:

                          “11.    Governing Law. The validity, performance, construction and effect

                   of this Agreement will be governed by the laws of Ohio and the federal laws of

                   the United States, without regard to conflict of laws. If any international treaties

                                                      3
                    or conventions are applicable to this Agreement, then the parties, to the greatest

                    extent possible, shall opt out of such treaties and conventions being applied to this

                    Agreement. This Agreement may be enforced in the courts sitting in Cuyahoga

                    County, Ohio, and in other courts and before other bodies to the extent required to

                    protect the Disclosing Party’s [ABI’s] rights. The prevailing party in any litigation

                    relating to this Agreement or a party’s performance hereunder shall be entitled to

                    recovery of its reasonable legal fees and all of its reasonable costs and expenses

                    incurred in connection with the litigation.

                            12.    Equitable Remedies. The Parties recognize that serious injury

                    could result to the Disclosing Party [ABI] and its business if the Receiving Party

                    [Sloan] breaches its obligations under this Agreement. Therefore, Receiving Party

                    agrees that the Disclosing Party will be entitled to a restraining order, injunction

                    or other equitable relief, the scope and extent of which shall be determined by a

                    court of competent jurisdiction, sitting in Cuyahoga County, Ohio, if Receiving

                    Party breaches its obligations under this Agreement, in addition to any other

                    remedies and damages that would be available at law or equity.

                                                    ***

                            16.    Miscellaneous. The headings used in this Agreement are for

                    reference and convenience only and will not enter into the interpretation of this

                    Agreement. This Agreement shall not be construed against either Party as the

                    drafter of this Agreement.”

¶7          In July 2016, ABI filed a motion to transfer venue in this case to Cuyahoga County,

     Ohio. ABI also filed, in the alternative, a motion to dismiss the case pursuant to section 2-615 of


                                                      4
       the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2016)). In the motions, ABI

       alleged that (1) earlier that month, it had filed a lawsuit against Sloan in the state court in

       Cuyahoga County, Ohio, for breach of the manufacturing agreement and the NDAs and for

       injunctive relief “inextricably intertwined with the issues raised by Sloan” in the present case; (2)

       the terms of the NDAs provided for exclusive venue in Cuyahoga County, Ohio; (3) it was

       unclear under Illinois law whether transfer or dismissal was the appropriate remedy, so ABI filed

       a motion requesting each remedy in the alternative; and (4) in addition to the forum selection

       clause, dismissal under section 2-615 of the Code was also appropriate because Sloan had failed

       to state a claim for declaratory relief in its complaint in that it had alleged insufficient facts and

       was improperly seeking a declaration of nonliability for past conduct. Attached to the motions as

       supporting documents were ABI’s memoranda setting forth its position in greater detail, copies

       of the agreements, and a copy of the breach of contract complaint that ABI had filed in the state

       court in Cuyahoga County, Ohio.

¶8             In September 2016, Sloan filed its responses, opposing ABI’s motions to transfer or

       dismiss. Attached to the responses, among other things, was an affidavit of Sloan’s president,

       Donald Stephens, in support of Sloan’s claim that all of the relevant events, materials, and

       witnesses in this case were in Peoria, Illinois.

¶9             The following month ABI filed replies to Sloan’s responses. Attached to the replies was

       an affidavit of ABI’s president, William Fouss, in support of ABI’s claim that the preponderance

       of the relevant events, materials, and witnesses in this case were in Ohio.

¶ 10           In October 2016, a hearing was held on ABI’s motions to transfer venue or to dismiss the

       case. During the hearing, the parties presented their oral arguments to the trial court. Of

       relevance to this appeal, ABI’s attorney stated, among other things:


                                                          5
                              “Does the court have a preference in the order? I have two arguments. I

                      have two motions filed. One is the motion to transfer venue. One is a motion to

                      dismiss. I’ll just note for the record I think they’re directly related, if for no other

                      reason, because there’s a procedural question as to how the Court would grant the

                      relief we’re seeking if it decided to do so. We got one string of Illinois law that

                      says it must be under the venue statute. We also have Illinois case law that says

                      the proper procedural matter to address this would be an outright dismissal. I’ll

                      leave that up to the Court. That’s a primary reason why we brought both

                      motions.”

¶ 11          In response to a question asked during the hearing, ABI’s attorney told the trial court that

       the case that ABI had filed in the state court in Cuyahoga County, Ohio, had been removed to

       federal court on Sloan’s motion. After listening to the arguments of the attorneys, the trial court

       took the case under advisement.

¶ 12          At a later court date the following month, the trial court announced its decision. As it was

       doing so, the following conversation ensued:

                              “THE COURT: *** And in reviewing all of this, it’s pretty clear to this

                      Court that both corporations, who are sophisticated, contracted to have their

                      matters heard in Cuyahoga, Ohio, and Illinois law presumes validity and

                      enforcement of an expressly agreed-upon forum selection clause, and I find that

                      the contracts entered into in June of 2014 and October of 2015 do just that.

                              So I’m gonna find that this should be heard in Ohio. And my inclination—

                      well, I’ll just ask if there would be an agreement on whether it’s dismissed or

                      transferred. Does anybody have a real strong preference on—


                                                         6
       [SLOAN’S ATTORNEY]: None, because I couldn’t figure out what

procedurally is—

       THE COURT: Well—

       [SLOAN’S ATTORNEY]: I’d say transferred but—

       THE COURT: I—it’s not clear to me whether it should be dismissed or

transferred. So in an abundance of caution so that nobody’s prejudice[d]—

       [SLOAN’S ATTORNEY]: Prejudice[d]. Yeah.

       THE COURT: —as far as how things were done procedurally, I’ll just

transfer it—

       [SLOAN’S ATTORNEY]: Okay.

       THE COURT: —to Ohio, and then you can sort it out.

       [SLOAN’S ATTORNEY]: Okay.

                                     ***

       [ABI’S ATTORNEY]: To my—my only other question is, I apologize, but

what do you mean when you say ‘you will transfer’? Just entering an order that

says ‘transfer’?

       THE COURT: I’m gonna grant a motion to transfer venue as opposed to

dismissing it for improper venue. And the reason I’m doing that is so that nobody

is prejudice[d] because of some things that have been done procedurally and then

you can sort it out in Ohio.

       [ABI’S ATTORNEY]: Sure.

       THE COURT: Okay?

       [ABI’S ATTORNEY]: Okay.”
                                7
¶ 13           After a written order was entered transferring venue in this case to Cuyahoga County,

       Ohio, Sloan filed a motion to reconsider that order or, in the alternative, to amend it. In the

       motion, Sloan alleged that (1) after the trial court made its ruling in this case, the federal court in

       the Ohio case issued an order abstaining from exercising jurisdiction and staying the Ohio case

       pursuant to the Colorado River Water Conservation District v. United States, 424 U.S. 800, 817

       (1976), abstention doctrine; (2) in this case, the Peoria County trial court’s interpretation of the

       forum selection clause contained in the NDAs was incorrect under Ohio law; (3) the trial court in

       this case should reconsider its prior ruling; (4) in the alternative, the trial court in this case should

       amend its prior ruling and dismiss this case, as opposed to transferring it to Ohio, because

       transfer of venue to a foreign court is improper under Illinois law; and (5) dismissal would allow

       the parties to retain their appeal rights. Sloan attached to the motion to reconsider a copy of the

       federal court’s ruling in the Ohio case.

¶ 14           ABI filed a motion to strike the motion to reconsider. ABI attached to the motion to strike

       a notice indicating that the state court in Cuyahoga County, Ohio, had accepted the transfer of

       this case from Illinois, had docketed the case, and had assigned the case to a judge. Sloan filed a

       response and opposed the motion to strike.

¶ 15           In December 2016, a hearing was held on Sloan’s motion to reconsider or amend and on

       ABI’s motion to strike. After some brief discussion with the attorneys, the trial court granted

       Sloan’s motion to reconsider or amend, in part, and dismissed this case. In so doing, the trial

       court stated:

                               “Well, as I previously stated, I mean, there’s no question this should all be

                       happening in Ohio. Period. And the only reason I didn’t rule one way or the other

                       is because I didn’t want to compromise your rights.


                                                          8
                                So that’s—and—and nobody really—everybody was kinda like, well,

                        we’re not sure exactly whether it’s transfer or dismiss. So if—given the fact that I

                        would’ve just dismissed it, we wouldn’t have—we wouldn’t have all these issues.

                        And no one had a strong position when we were here initially.”

       The trial court entered a written order that Sloan had prepared reversing the trial court’s previous

       ruling in its entirety and dismissing the case. Sloan filed this appeal to challenge the trial court’s

       ruling.

¶ 16                                                ANALYSIS

¶ 17             On appeal, Sloan argues that the trial court erred in granting ABI’s section 2-615 motion

       to dismiss Sloan’s complaint for declaratory judgment. Sloan asserts that the motion to dismiss

       should have been denied because the parties’ contract does not require Sloan to litigate this case

       in Cuyahoga County, Ohio, or prohibit Sloan from bringing this case in Peoria County, Illinois.

       In making that assertion, Sloan acknowledges that paragraph 12 of the NDAs contains a

       mandatory forum selection clause but denies that it applies in this case. Rather, Sloan maintains

       that the mandatory forum selection clause only applies to suits brought by ABI for injunctive or

       other equitable relief for breach of the nondisclosure provisions and only for the purpose of

       determining the scope and extent of any such injunctive relief that may be granted. According to

       Sloan, if any forum selection clause applies in this case, it is the permissive forum selection

       clause contained in paragraph 11 of the NDAs that allows a lawsuit, such as the one in the

       present case, to be brought in any court. In the alternative, Sloan asserts that the mandatory

       forum selection clause is unenforceable because the chosen forum is so inconvenient, under the

       circumstances of the present case in which almost all of the relevant witnesses, documents, and

       materials are in Peoria, that it would, in effect, provide Sloan with no remedy at all. For all of the


                                                          9
       reasons stated, Sloan asks that we reverse the trial court’s dismissal order; that we find that

       venue is appropriate in Peoria County, Illinois; and presumably, that we remand this case for

       further proceedings.

¶ 18          ABI argues that the trial court’s ruling was proper and should be upheld. In support of

       that argument, ABI asserts first that Sloan has waived its claim of error on appeal by asking the

       trial court to dismiss the case in Sloan’s motion to reconsider and by submitting the proposed

       dismissal order that the trial court approved and entered. Thus, ABI contends that Sloan invited

       or induced the trial court to make the alleged erroneous dismissal and that Sloan cannot now

       challenge that dismissal on appeal. Second, ABI asserts that even if Sloan’s claim of error is not

       waived, it should still be rejected by this court because the parties’ agreement specifically and

       mandatorily provides that venue for cases such as this shall be in Cuyahoga County, Ohio, as the

       trial court correctly found. In making that assertion, ABI maintains that the mandatory forum

       selection clause is not limited to claims for injunctive relief, as Sloan suggests but, rather, applies

       to all cases involving Sloan’s alleged breach of the contract, regardless of the remedy being

       sought. ABI maintains further that paragraphs 11 and 12 of the NDAs are not ambiguous or in

       conflict and can be easily harmonized in that paragraph 11 addresses the jurisdictions where ABI

       can seek to protect its rights (any jurisdiction) and paragraph 12 addresses the locale where the

       parties must litigate disputes regarding Sloan’s alleged breach of the contract (the selected Ohio

       forum), such as those disputes raised in the present case. In addition, ABI contends that the

       mandatory forum selection clause in the present case is valid and enforceable and that Sloan’s

       claim as to inconvenience is wholly irrelevant in this context or, at the very least, that it must be

       balanced against the inconvenience that would result to ABI if this case was not litigated in the

       designated forum. ABI contends further that when an agreement contains both a mandatory and a


                                                         10
       permissive forum selection clause, the mandatory forum selection controls over the permissive

       one. Third and finally, ABI asserts that even if the trial court’s reasoning on venue was incorrect,

       dismissal was still proper in this case because Sloan’s complaint failed to state a cause of action

       for declaratory judgment in that the complaint (1) sought a declaration of nonliability for past

       conduct, which is not actionable under Illinois law, and (2) failed to allege sufficient facts under

       Illinois pleading standards. For all of the reasons set forth, ABI asks that we affirm the trial

       court’s dismissal order.

¶ 19          In reply to ABI’s assertions, Sloan repeats many of the same arguments that it made

       initially. Sloan does, however, make some additional assertions about ABI’s waiver argument

       and about ABI’s failure-to-state-a-claim argument. First, as to ABI’s waiver argument, Sloan

       contends that waiver does not apply here because Sloan’s motion to reconsider was ultimately

       requesting that the trial court reverse its previous ruling and deny ABI’s motion to transfer or

       dismiss the case. According to Sloan, it requested in the alternative that the trial court amend the

       previous order and change it to a dismissal order, rather than a transfer order, because it believed

       that the trial court had erred, as a matter of civil procedure, by transferring the case, instead of

       dismissing it. Further, Sloan contends it prepared and submitted the proposed order after the trial

       court requested that Sloan do so. Second, as to ABI’s failure-to-state-a-claim argument, Sloan

       contends that its declaratory judgment complaint was sufficient under the law. Sloan asserts that

       in the complaint it was not seeking a declaration of nonliability for past conduct but, rather, was

       seeking the right to continue acting in the future, with regard to the contract, as it had acted in the

       past and was challenging the current allegations that were being made by ABI. Sloan points out

       that the trial court did not rule upon the sufficiency of the complaint and asserts that, if this court

       reaches that issue, it should remand the case for the trial court to decide the issue and to allow


                                                         11
       Sloan to file an amended complaint if the need arises. Ultimately, Sloan again asks that we

       reverse the trial court’s dismissal order; that we find the venue is appropriate in Peoria County,

       Illinois; and presumably, that we remand this case for further proceedings.

¶ 20                                            I. Standard of Review

¶ 21           A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based

       upon defects that are apparent on the face of the complaint. Heastie v. Roberts, 226 Ill. 2d 515,

       531 (2007). In determining whether a complaint is legally sufficient, a court must accept as true

       all well-pleaded facts and all reasonable inferences that may be drawn from those facts. Id. The

       critical inquiry in deciding a section 2-615 motion to dismiss is whether the allegations of the

       complaint, considered in the light most favorable to the plaintiff, are sufficient to state a cause of

       action upon which relief can be granted. Board of Directors of Bloomfield Club Recreation Ass’n

       v. Hoffman Group, Inc., 186 Ill. 2d 419, 424 (1999). A cause of action should not be dismissed

       pursuant to section 2-615 unless it is clearly apparent that the plaintiff cannot prove any set of

       facts that will entitle the plaintiff to relief. Heastie, 226 Ill. 2d at 531. In reviewing a trial court’s

       ruling on a section 2-615 motion to dismiss, the appellate court applies a de novo standard of

       review. Id. at 530-31. When de novo review applies, the appellate court performs the same

       analysis that the trial court would perform. Direct Auto Insurance Co. v. Beltran, 2013 IL App

       (1st) 121128, ¶ 43. The appellate court may affirm a trial court’s grant of a section 2-615 motion

       to dismiss on any basis supported by the record. Fidelity National Title Insurance Co. of New

       York v. Westhaven Properties Partnership, 386 Ill. App. 3d 201, 220 (2007). In addition, as will

       be discussed later in this decision, our ruling on the main issue in this particular case turns on an

       interpretation of the parties’ contract. Contract interpretation is a matter that is also subject to

       de novo review on appeal. Gallagher v. Lenart, 226 Ill. 2d 208, 219 (2007).


                                                           12
¶ 22                                      II. ABI’s Assertion of Waiver

¶ 23          Before we reach the merits of the parties’ arguments on appeal, we must first address

       ABI’s assertion that Sloan waived its claim of error by asking the trial court to enter the

       dismissal order in Sloan’s motion to reconsider and by preparing and submitting the dismissal

       order that the trial court eventually entered. It is well settled that a party may not complain on

       appeal about an error that it invited or induced the trial court to make. McMath v. Katholi, 191

       Ill. 2d 251, 255 (2000); Stephens v. Taylor, 207 Ill. 2d 216, 222-24 (2003). When a party invites

       or induces the trial court to commit error, we do not inquire into the party’s motivations for

       doing so. See Stephens, 207 Ill. 2d at 222-24. The party’s motivations for inviting or inducing the

       trial court to commit error are irrelevant. Id. That being said, under the circumstances of the

       present case, we cannot agree with ABI’s claim that Sloan invited or induced the trial court to

       enter the allegedly erroneous dismissal order. It was ABI, and not Sloan, who initially moved for

       transfer or dismissal. Because of the uncertainty on this issue under Illinois law, neither the

       parties nor the trial court was sure of the appropriate remedy to award ABI. However, when

       Sloan learned that under the case law, a transfer to a foreign jurisdiction was not allowed, it

       appropriately informed the trial court that it had entered the wrong remedy under the law. We

       find, therefore, that Sloan did not waive its claim of error under the circumstances of this

       particular case.

¶ 24                             III. Validity of the Mandatory Forum Selection
                                 Clause Contained in Paragraph 12 of the NDAs

¶ 25          Having determined that there was no waiver in this case, we turn to the merits of the

       parties’ arguments on appeal and must first decide whether the mandatory forum selection clause

       contained in paragraph 12 of the NDAs was valid and enforceable. Pursuant to the provisions of

       the NDAs, we are required to apply Ohio law in answering that question.

                                                        13
¶ 26          Ohio law recognizes that parties to a contract may agree to submit their disputes to a

       particular court by placing a forum selection clause to that effect in their contract. See Salehpour

       v. Just A Buck Licensing, Inc., 2013-Ohio-4436, ¶ 10. There are generally two types of forum

       selection clauses: permissive and mandatory. State ex rel. Cordray v. Makedonija Tabak 2000,

       189 Ohio App. 3d 73, 2010-Ohio-2903, 937 N.E.2d 595, ¶ 15. A permissive forum selection

       clause allows the parties to submit their dispute to a designated forum but does not prohibit

       litigation elsewhere. Id. A mandatory forum selection clause, on the other hand, provides an

       exclusive forum for litigation under the agreement as the only place where the parties are

       allowed to submit their dispute. See id. Use of the words “may” or “should” in a forum selection

       clause indicates that the parties intended the clause in question to be permissive in nature. Id.

       ¶ 16. Whereas, use of the word “shall” tends to signify that the parties intended the forum

       selection clause to be mandatory. See Cleveland Ry. Co. v. Brescia, 126 N.E. 51, 52 (Ohio

       1919). For a forum selection clause to be considered mandatory, however, the clause must

       clearly display the intent of the contracting parties to choose a particular forum to the exclusion

       of all others. Cordray, 2010-Ohio-2903, ¶ 15.

¶ 27          In the present case, there is no dispute between the parties that paragraph 11 of the NDAs

       contains a permissive forum selection clause and that paragraph 12 of the NDAs contains a

       mandatory forum selection clause. Instead, the dispute between the parties in this appeal centers

       on how the forum selection clauses are to be interpreted, how the forum selection clauses are to

       be applied, and whether the forum selection clauses should be enforced. Again, we turn to Ohio

       law to resolve those questions.

¶ 28          Under Ohio law, a forum selection clause contained in a commercial contract between

       two business entities (commercial forum selection clause) is prima facie valid, as long as it was


                                                        14
       bargained for freely. Kennecorp Mortgage Brokers, Inc. v. Country Club Convalescent Hospital,

       Inc., 610 N.E.2d 987, 989 (Ohio 1993). A commercial forum selection clause, therefore, will

       generally be enforced, absent a strong showing that it should be set aside. Id. Enforcement of a

       commercial forum selection clause will be rejected, however, where either one of the two

       following conditions is clearly present: (1) where the clause was the product of fraud or

       overreaching; or (2) where enforcement of the clause would be unreasonable and unjust in that it

       would essentially deprive the opposing party of its day in court or would be against public

       policy. See id.; Preferred Capital, Inc. v. Power Engineering Group, Inc., 112 Ohio St. 3d 429,

       2007-Ohio-257, 860 N.E.2d 741, ¶ 17.

¶ 29          In the present case, Sloan does not allege fraud or overreaching and has made no showing

       that enforcement of the mandatory forum selection clause contained in paragraph 12 would

       essentially deprive it of its day in court or would be against public policy. See Kennecorp

       Mortgage Brokers, Inc., 610 N.E.2d at 989. Sloan merely alleges, in effect, that having to litigate

       this breach of contract case in Ohio would be inconvenient. Such an allegation is not sufficient,

       however, to negate the application of the mandatory forum selection clause. See id. at 988-89 (a

       minimum-contacts analysis, as set forth in International Shoe Co. v. Washington, 326 U.S. 310,

       316 (1945), and its progeny, does not apply in determining the validity of a commercial forum

       selection clause). Thus, the mandatory forum selection clause is valid and enforceable. The only

       question that remains to be resolved is how that forum selection clause should be interpreted.

       That question is one of contract interpretation.

¶ 30                      IV. Interpretation of the Mandatory Forum Selection Clause

¶ 31          The rules of contract interpretation under Ohio law are well established and are similar to

       the rules of contract interpretation under Illinois law. Compare, e.g., In re All Kelley & Ferraro


                                                          15
Asbestos Cases, 104 Ohio St. 3d 605, 2004-Ohio-7104, 821 N.E.2d 159, ¶ 29 (setting forth some

of the rules of contract interpretation under Ohio law), with Gallagher, 226 Ill. 2d at 232-33

(setting forth some of the rules of contract interpretation under Illinois law). The main goal of

contract interpretation under Ohio law is to ascertain and give effect to the intent of the parties,

which a court presumes rests in the language that the parties chose to use in their contract. All

Kelley, 2004-Ohio-7104, ¶ 29. In determining the parties’ intent, a court must read the contract

as a whole and must attempt to give effect to, and harmonize, every part of the contract. See id.;

Ford Motor Co. v. John L. Frazier & Sons Co., 196 N.E.2d 335, 337-38 (Ohio Ct. App. 1964).

Common words in a contract are to be given their ordinary meaning unless manifest absurdity

results or unless some other meaning is clearly evidenced from the face or overall contents of the

contract itself, and technical words will be given their technical meaning unless a different

intention is clearly expressed. Foster Wheeler Enviresponse, Inc. v. Franklin County Convention

Facilities Authority, 678 N.E.2d 519, 526 (Ohio 1997). When the terms of a contract are clear

and unambiguous, the trial court need not go beyond the plain language of the contract to

determine the rights and obligations of the parties. All Kelley, 2004-Ohio-7104, ¶ 29. “However,

if a term cannot be determined from the four corners of a contract, factual determination of intent

or reasonableness may be necessary to supply the missing term.” Inland Refuse Transfer Co. v.

Browning-Ferris Industries of Ohio, Inc., 474 N.E.2d 271, 273 (Ohio 1984) (applying that rule

of contract interpretation in the context of a summary judgment proceeding). That being said, it

must be remembered that it is not the role of the court to alter a contract by construction or to

make a new contract for the parties; rather, it is the court’s duty to interpret the contract that the

parties have made for themselves. See In re All Kelley & Ferraro Asbestos Cases, 153 Ohio




                                                  16
       App. 3d 458, 2003-Ohio-3936, 794 N.E.2d 729, ¶ 57, rev’d on other grounds, 2004-Ohio-7104,

       ¶ 42.

¶ 32           Applying the Ohio rules of contract interpretation in the present case, we find that the

       forum selection clause contained in paragraph 12 of the NDAs, while mandatory, is not nearly as

       broad as ABI suggests. To give paragraph 12 such a meaning would negate the permissive forum

       selection clause contained in paragraph 11. The only way to harmonize the two forum selection

       clauses (paragraph 11 and paragraph 12) is to interpret the mandatory forum selection clause

       very narrowly, as indeed it is so worded. We conclude, therefore, that the mandatory forum

       selection clause only applies to cases brought by ABI for breach of the nondisclosure provisions

       and only for the purpose of determining the scope of any restraining order, injunctive relief, or

       equitable relief that may be awarded in such a case. As Sloan correctly points out, that is not the

       situation before the court in the present case. Thus, we agree with Sloan that there is no provision

       in the manufacturing agreement or in the NDAs that prohibits Sloan from bringing the instant

       declaratory judgment action in the Peoria County trial court. The trial court erred in ruling to the

       contrary.

¶ 33           Having made that determination, we will not reach the other main assertion set forth by

       ABI—that its motion to dismiss should be granted because Sloan failed to state a claim for

       declaratory relief in its complaint. The trial court did not rule upon that particular argument and

       will undoubtedly face a motion to amend the complaint by Sloan if the trial court determines that

       the complaint is insufficient. We, therefore, remand this case for the trial court to decide that

       issue and any other matters that may arise.

¶ 34                                             CONCLUSION




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¶ 35          For the foregoing reasons, we reverse the judgment of the circuit court of Peoria County

       and remand this case for further proceedings.

¶ 36          Reversed and remanded.




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