                          STATE OF MICHIGAN

                             COURT OF APPEALS



SUMMIT DIAMOND BRIDGE LENDERS, LLC,                                  UNPUBLISHED
                                                                     December 22, 2016
               Plaintiff-Appellant,

v                                                                    No. 326679
                                                                     Oakland Circuit Court
PHILIP R. SEAVER TITLE COMPANY, INC.,                                LC No. 2014-143557-CK
also known as PRS ASSETS, INC.,

               Defendant-Appellee.


Before: MURPHY, P.J., and STEPHENS and BOONSTRA, JJ.

BOONSTRA, J. (dissenting).

       I respectfully dissent. In my view, the trial court properly enforced the freely-bargained-
for forum-selection clause at issue in this case,1 because both Michigan and California law
support such enforcement. In concluding otherwise, the majority holds that a California court
would not allow plaintiff to maintain this action in California because the monetary amount
found in Cal Code Civ Proc § 410.40 has not been met. I believe that this conclusion is based on
a misinterpretation of the California Code of Civil Procedure and the purpose behind Cal Code
Civ Proc § 410.40. Further, I agree with the majority that the issue of whether a California court
would find that it has personal jurisdiction over defendant is unclear (given that, as the majority
acknowledges, there is no horizontal stare decisis within the California Court of Appeals), and I
would hold that the trial court did not err by allowing a California court to make that
determination.2




1
 The underlying escrow agreement provided, in pertinent part, that “[a]ny dispute arising from
or related to this Agreement, shall be governed by, and subject to, the laws of the State of
California and shall be handled by the appropriate state or federal court located in California.”
2
 Were we to affirm the trial court (as I would do), its grant of summary disposition in favor of
defendant should be without prejudice to the refiling of this action in Michigan in the event that a
California court later were to determine that it lacked personal jurisdiction. This would guard
against the parties potentially being left without a forum in which to litigate the dispute.

                                                -1-
                   I. APPLICABILITY OF CAL CODE CIV PROC § 410.40

        The majority begins by acknowledging, as the trial court did, that California generally
enforces freely-bargained-for forum-selection clauses. See Smith, Valentino & Smith, Inc v
Superior Court, 17 Cal 3d 491, 495-496; 131 Cal Rptr 374; 551 P 2d 1206 (1976); CQL Original
Prods, Inc v Nat’l Hockey League Players’ Ass’n, 39 Cal App 4th 1347, 1354; 46 Cal Rptr 2d
412 (1995). Nonetheless, the majority concludes that Cal Code Civ Proc § 410.40 bars the
enforcement of the forum-selection clause in the instant case. Cal Code Civ Proc § 410.40 states
in relevant part:

       Any person may maintain an action or proceeding in a court of this state against a
       foreign corporation or nonresident person where the action or proceeding arises
       out of or relates to any contract, agreement, or undertaking for which a choice of
       California law has been made in whole or in part by the parties thereto and which
       (a) is a contract, agreement, or undertaking, contingent or otherwise, relating to a
       transaction involving in the aggregate not less than one million dollars
       ($1,000,000), and (b) contains a provision or provisions under which the foreign
       corporation or nonresident agrees to submit to the jurisdiction of the courts of this
       state.

        Notwithstanding the permissive nature of the statute, the majority converts it into a
statute of preclusion, stating its interpretation as follows:

       Under this provision, a plaintiff is precluded from bringing suit against a
       defendant who is a foreign corporation unless (1) the action involves an
       agreement “for which a choice of California law has been made,” (2) the
       agreement relates to a transaction involving at least $1,000,000, and (3) the
       agreement contains a provision whereby the foreign corporation “agrees to submit
       to the jurisdiction of the courts of this state.”

I find no support for this interpretation in California law. While I will discuss the issue of the
parties’ submission to the personal jurisdiction of California in a later section of this opinion, as
the issue of personal jurisdiction is important regardless of the applicability of Cal Code Civ
Proc § 410.40, I cannot conclude that the statute itself “precludes” a plaintiff from bringing a suit
against a foreign corporate defendant unless its criteria are met.

         Although the rule of statutory construction expression unius est exclusio alterius (the
expression of one thing is the exclusion of another) arguably could, in a vacuum, be applied to
the language of Cal Code Civ Proc § 410.40 to support the conclusion that the majority reaches
(i.e., that by providing that a plaintiff may maintain an action against a foreign corporate
defendant only if the criteria of Cal Code Civ Proc § 410.40 are met), that rule is merely a tool to
be used, where necessary, to ascertain the intent of the legislature, and cannot be employed to
contradict or vary a clear expression of legislative intent. See Luttrell v Dep’t of Corrections,
421 Mich 93, 107; 365 NW2d 74 (1984); Williams v Los Angeles Metropolitan Transit Auth, 68
Cal 2d 599, 603-604;; 68 Cal Rptr 297; 440 P 2d 497 (1968). Put another way, such a rule of
statutory construction simply does not apply in the face of a clear indication of legislative intent.


                                                -2-
        I find that to be the case with respect to Cal Code Civ Proc § 410.40. That is, as stated in
Credit Lyonnais Bank Nederland, NV v Manatt, Phelps, Rothenberg & Tunney, 202 Cal App 3d
1424, 1433; 249 Cal Rptr 559 (1988), superseded in part by statute on other grounds as noted in
Beckman v Thompson, 4 Cal App 4th 481; 6 Cal Rptr 2d 60 (1992), the statute appears designed
not to preclude anything, but rather specifically to attract big-ticket litigation to California by
expressly allowing parties to maintain actions against foreign corporations under forum-selection
clauses if the dollar value and other criteria are met. The Credit Lyonnais court noted that the
California Legislature modeled the bill that adopted Cal Code Civ Proc § 410.40 after a similar
statute enacted in New York “for the purpose of fostering New York as an international
commercial arbitration center.” Id. at 1434 (citation omitted), and concluded that Cal Code Civ
Proc § 410.40 operated to “limit the exercise of the inconvenient forum doctrine” by explicitly
authorizing California as a forum for certain types of “large contract” cases. Id.

        Several states have passed similar laws patterned after New York’s statute, including,
Florida, Delaware, Ohio, and Texas. See Honigsberg et al., State Contract Law and Debt
Contracts, 57 J Law & Econ 1031, 1034-1035 and n 6 (2014). These statutes have been
described by commentators as “allowing parties to litigate in their state courts providing that the
contract exceeds a minimum dollar value (usually $1 million) and that the parties have selected
the law of that state,” id., or as a “statutory commitment to enforce forum-selection clauses”
when a state’s law has been chosen and the dispute exceeds a certain dollar value. See Winship,
Bargaining for Exclusive State Court Jurisdiction, 1 Stanford J Complex Lit 51, 87-88 (2012).
As a result of the passage of these statutes, “parties to substantial commercial contracts can now
feel confident that their choice of law will be enforced.” Honigsberg, 1035.

        Thus, rather than conclude, as the majority does, that Cal Code Civ Proc § 410.40
precludes the enforcement of forum-selection clauses if its conditions are not met, I conclude,
consistent with Credit Lyonnaise, 202 Cal App 3d at 1432, that the statute exists to encourage
and facilitate the enforcement of these clauses specifically in big-ticket contract cases, and is
simply inapplicable to cases that do not meet its criteria.3 The statute thus does not preclude the
exercise of jurisdiction over those smaller cases, but merely does not afford them the exemption
to the inconvenient forum doctrine that is afforded to the bigger-ticket cases.

        Indeed, I have found no California case invoking Cal Code Civ Proc § 410.40 in
declining to enforce a forum-selection clause. Moreover, if the majority were correct that Cal


3
  In fact, if one reads Cal Code Civ Proc § 410.40 as a statute of preclusion, then it would
preclude any California court from ever taking jurisdiction over a foreign corporation that did not
meet the statute’s criteria, regardless of the corporation’s contacts with California, thus operating
as at least a partial abrogation of California’s long-arm statute, Cal Code Civ Proc § 410.10. No
California court has so interpreted Cal Code Civ Proc § 410.40. See XL Specialty Ins Co v
Bullocks Exp Transp, Inc, unpublished opinion of the California Court of Appeal, Second
District, Division 2, decided April 4, 2002 (Docket No. B151799) (concluding that Cal Code Civ
Proc § 410.40 did not apply to the instant case due to the lack of forum-selection clause, but
nonetheless concluding that the trial court could take personal jurisdiction over the defendant
foreign corporation based on minimum contacts).

                                                -3-
Code Civ Proc § 410.40 operates to preclude actions against foreign corporations that do not
meet its criteria, then no such actions under a million dollars could be maintained in California,
regardless of the parties’ choice of California law and explicit submission to the personal
jurisdiction of California. Yet, I have found no California cases employing such a rationale. I
therefore disagree with the majority’s reliance on Cal Code Civ Proc § 410.40 to find that the
California courts would refuse to allow plaintiff to maintain this action in California.

                                II. PERSONAL JURISDICTION

         The majority states that the question of whether California courts would find that plaintiff
had consented to personal jurisdiction in California is unanswered. I agree that the question has
been answered differently by different panels of the California Court of Appeals, none of which
are binding on the other. But I fail to see how the trial court erred by deciding that a California
court should answer the question in the first instance; indeed, to me, the unsettled nature of the
caselaw in California counsels toward deferring to a California court to determine the
enforceability of a California choice of forum clause under California law. Reading (as I do) Cal
Code Civ Proc § 410.40 to encourage “big ticket” cases rather than to preclude smaller ones (and
therefore not holding plaintiff’s case to be barred by a monetary requirement), I would hold that
the trial court did not err by enforcing the forum-selection clause at issue. Although the majority
acknowledges the lack of horizontal stare decisis within the California Court of Appeals and the
resulting non-binding nature of Global Packaging, Inc v The Superior Court, 196 Cal App 4th
1623, 1627; 127 Cal Rptr 3d 813 (2011), it does not go so far as to decide (apart from the issue
of the supposed monetary requirement of Cal Code Civ Proc § 410.40) whether the trial court
was correct in enforcing the forum-selection clause. I would do so, and would conclude that
given the uncertainties of California law, plaintiff has failed to carry its burden of showing that
the mandatory forum-selection clause is unreasonable. Specifically, plaintiff has failed to show
that the selected forum is “unavailable or unable to accomplish” substantial justice, see Smith,
Valentino & Smith, Inc, 17 Cal 3d at 495–496. I would therefore hold that the trial court did not
err by granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7).

         Plaintiff’s argument in essence is that Global Packaging would compel a California court
to find that the forum-selection clause at issue here was not an agreement by the parties to submit
to the personal jurisdiction of California. I disagree with that assertion in several respects. At
the outset, I note that plaintiff argues that Global Packaging is “binding” precedent establishing
a “clear rule” that “must be applied” and that “will require a California court to dismiss the
present dispute.” This, however, is incorrect. As the majority acknowledges, Global Packaging
is not binding on future California courts (as are published appellate decisions after 1990 in
Michigan; see MCR 7.215(J)), and there is no horizontal stare decisis within the California
Courts of Appeal; “[o]ne district or division may refuse to follow a prior decision of a district or
division.” See, e.g., McCallum v McCallum, 190 Cal App 3d 308, 315 n 4; 235 Cal Rptr 396
(Cal App 1987). Nor is a superior court bound to follow an appellate opinion even from its own
district where contrary appellate authority exists. See id.; see also Auto Equity Sales, Inc v
Superior Court of Santa Clara Co, 57 Cal 2d 450, 456; 20 Cal Rptr 321; 359 P2d 937 (1962)
(wherein the California Supreme Court states that where appellate decisions are in conflict, “the
court exercising inferior jurisdiction can and must make a choice between the conflicting
decisions.”)


                                                -4-
        I also note that plaintiff’s reliance on the reasoning of Global Packaging may be suspect
in light not only of California’s policy of enforcing freely-bargained-for forum-selection clauses,
but the United States Supreme Court’s holding in The Bremen v Zapata Off–Shore Co, 407 US 1,
18; 92 S Ct 1907, 1913; 32 L Ed 2d 513 (1972). Plaintiff in fact argues that the court in Global
Packaging “[r]eject[ed] the reasoning of the holding” in The Bremen, because there “the United
States Supreme Court improperly conflated forum selection with jurisdiction.” I do not,
however, read Global Packaging as “explicitly reject[ing]” the United States Supreme Court’s
holding in The Bremen,” as plaintiff contends (emphasis in original). To the contrary, Global
Packaging described The Bremen as “the case that gave the official imprimatur to forum
selection clauses as embodying the modern and cosmopolitan approach to commercial disputes.”
(Footnote omitted).

        Global Packaging may indeed, however, have implicitly rejected the United States
Supreme Court’s holding in The Bremen. While holding that “an agreement to litigate in a
certain forum” does not “necessarily imply an additional, separate agreement to submit to the
jurisdiction of that forum,” Global Packaging, 196 Cal App at 1632, the court did not address the
United States Supreme Court’s observation that “ ‘it is settled . . . that parties to a contract may
agree in advance to submit to the jurisdiction of a given court’ ” through “arms-length
negotiation” for “[t]he choice of that forum.”4 The Bremen, 407 US at 11, quoting National
Equipment Rental, Ltd v Szukhent, 375 US 311, 315-316, 84 S Ct 411, 11 L Ed 2d 354 (1964).
Nor did it address the Supreme Court’s holding that such clauses are enforceable absent a
showing that “trial in the contractual forum will be so gravely difficult and inconvenient that [the
plaintiff] will for all practical purposes be deprived of his day in court.” Id. at 18. Rather, the
Global Packaging court appears to have determined that parties to contracts that select a forum
for the resolution of disputes require additional due process protections that the United States
Supreme Court has not deemed necessary.5 Regardless, it appears to me at best far from certain
that another California Court of Appeal, or the California Supreme Court, or for that matter a
California Superior Court, would embrace plaintiff’s position that it should cavalierly reject,
either explicitly or implicitly, a holding of the United States Supreme Court.

        Further, although Global Packaging concluded that an agreement to litigate disputes in a
certain venue or forum does not imply an agreement to submit to personal jurisdiction, the
opposite conclusion was reached in Berard Construction Co v Municipal Court, 49 Cal App 3d
710, 722; 122 Cal Rptr 825 (1975), wherein the court held that a clause that provided that a lease
was to be construed under the laws of California and that actions under the lease should be


4
  I note that the clause at issue in The Bremen stated merely that “[a]ny dispute arising must be
treated before the London Court of Justice” and did not contain the sort of additional explicit
consent to jurisdiction that the court in Global Packaging found necessary. The Bremen, 407 US
at 2.
5
  I note that California, like Michigan, nonetheless considers the due process protections of its
state constitution to be essentially co-extensive with the protections provided by the federal
constitution. See Today’s Fresh Start, Inc v Los Angeles County Office of Ed, 57 Cal 4th 197,
212; 303 P 3d 1140; 159 Cal Rptr 3d 358 (2013).

                                                -5-
brought in Los Angeles County constituted the consent of the parties to California’s jurisdiction.
Thus, a California trial court or appellate court faced with this issue in the future would have
contradictory appellate authorities from which to choose. As an example, in Paul Ryan
Associates v Hawaiiana Painting & Maintenance, Inc, unpublished opinion of the California
Court of Appeal, First District, Division 5, issued April 30, 2013 (Docket No. A136052), the
court faced the issue of whether the defendant had consented to personal jurisdiction when it
entered into a subcontract that incorporated a term from another contract stating that disputes
would be litigated in San Francisco. Id., unpub op at 1. The court thus considered whether to
apply Global Packaging or Berard. Id. at 6 (“The language in Paragraph 24.3.3 of the General
Contract does not state that anyone is submitting to personal jurisdiction in California; it merely
specifies that arbitration or litigation will take place in San Francisco, California. The question
therefore arises whether a forum-selection clause alone is sufficient to confer personal
jurisdiction over a defendant. Relevant to this question are two California decisions—Global
Packaging, Inc v Superior Court (2011) 196 Cal. App. 4th 1623 (Global Packaging) and Berard
Construction Co v Municipal Court (1975) 49 Cal App 3d 710 (Berard).”). Although that
particular court ultimately chose to follow Global Packaging, a future court would be not
required to do so.6

        Indeed, several California courts have, post-Global Packaging, enforced forum-selection
clauses with language very similar to the clause at issue here, and that lack an explicit reference
to submission to a particular jurisdiction apart from a statement that disputes will be resolved in a
particular forum. See Karnazes v Expedia, Inc, unpublished opinion of the California Court of
Appeal, issued November 26, 2014 (Docket No. B250142); Madick Ins Serv v 3 Mark Fin, Inc,
unpublished opinion of the California Court of Appeal, issued March 5, 2014 (Docket No.
B249500); Schine v Prop Sols, Int’l, Inc, unpublished opinion of the California Court of Appeal,
issued January 27, 2014 (Docket No. B240853); Anosike v Covenant Transp, Inc, unpublished
opinion of the California Court of Appeal, issued May 24, 2013 (Docket No. B238684).

        Thus, as the majority acknowledges, a California court could decline to adopt the
reasoning of Global Packaging in determining whether the parties to the escrow agreement had
consented to the jurisdiction of California, just as the Global Packaging court declined to adopt
the reasoning of Berard. Global Packaging, Inc, 196 Cal App 4th at 1633 n 10. This conclusion
is strengthened by the fact that Berard relied on a California Supreme Court case, Frey & Hogan
Corp v Superior Court, 5 Cal 2d 401; 55 P2d 203 (1936), in holding that agreement to litigate in
a particular forum constituted implied consent to the jurisdiction of that forum. Although the
Global Packaging court appears to give short shrift to cases such as Frey (albeit without naming


6
  I note that the court in Paul Ryan also decided that the subcontract did not incorporate the
forum-selection clause of the general contract. Additionally, the court found it relevant that the
defendant did not negotiate the forum-selection clause and that no authority had been presented
“for the proposition that consent to personal jurisdiction may be established solely by
incorporating a forum selection clause from another contract between a different set of parties.”
In this case, of course, we have at issue a forum-selection clause as part of a negotiated
agreement between the parties to the case at hand, not an incorporation from another contract to
which defendant was not a party.

                                                -6-
Frey), stating in a footnote that “cases pertaining to jurisdiction in arbitrations are inapposite” in
light of Cal Civ Proc § 1293,7 Global Packaging, Inc, 196 Cal App 4th at 1633 n 10, I believe
that a California court could find substantial support in Frey for enforcing the forum-selection
clause at issue here.

        In Frey, 5 Cal 2d at 402-403, the petitioner sought to have the California Supreme Court
overturn the Superior Court’s denial of its motion to quash service of process related to an
arbitration to take place in California under the laws of California, on the ground that the
California Court lacked personal jurisdiction over it to compel the arbitration. The California
Supreme Court declined, stating that the contract at issue contained a clause selecting a
California forum and California law for arbitration, and that “[t]herefore it was an agreement to
submit to the jurisdiction within which the arbitration must operate in order to give it the effect
contemplated by the contract and by the law.” Id. at 404-405. This holding with regard to
arbitrations was later codified in Cal Civ Proc § 1293. See Atkins, Kroll & Co v Broadway
Lumber Co, 222 Cal App 2d 646, 651; 35 Cal Rptr 385 (1963). Although there are obvious
differences between suits pending in arbitration and in court, here, as in Frey and Berard, the
parties to the agreement agreed to a California forum and California law; a California Court
could therefore conclude that the parties had necessarily consented to the personal jurisdiction of
a California court.

        Additionally, I find Global Packaging to be distinguishable from the instant case in
several respects. The court in Global Packaging was faced with a much more poorly-drafted
clause that, among other things, violated California law concerning the selection of venue.
Global Packaging, Inc, 196 Cal App at 1627, 1628. The court’s frustration with the poor
drafting at issue was evident:

       A court should not be called upon to function as a backstop for sloppy contract
       drafting. A judge should not have to spend court time sorting out the meanings
       and applications of common legal terms—“venue,” “forum,” and “jurisdiction.”
       Failing to pay attention does and should have consequences. As the court stated,
       with obvious exasperation, in General Motors Acceptance Corp v Codiga (1923)
       62 Cal. App. 117, 120, 216 P. 383, “[C]ourts are not inclined to go out of their
       way, when confronted with an invalid covenant, to search for ways and means of
       saving perchance something from the wreck and thus placing an interpretation on
       the contract which the parties never wrote therein.”

       The trial court took a clause referring to “venue,” translated “venue” into
       “forum,” and then extended “forum” to include personal jurisdiction. This
       stretches paragraph 11 beyond what its actual words can bear and pulls Epicor out



7
  Cal Civ Proc § 1293 states that “[t]he making of an agreement in this State providing for
arbitration to be had within this State shall be deemed a consent of the parties thereto to the
jurisdiction of the courts of this State to enforce such agreement by the making of any orders
provided for in this title and by entering of judgment on an award under the agreement.”

                                                 -7-
       of a pit of its own digging. Global Packaging cannot be haled into a California
       court on that basis. [Id. at 1634-18355.]

Thus, the court in Global Packaging was faced with a clause that was only a forum-selection
clause by implication, and it declined to further rehabilitate the poor drafting so as to imply
consent to jurisdiction. Global Packaging, Inc, 196 Cal App 4th at 1633 n 10 (stating that it
disagreed that “a consent to venue in one county constitutes a consent to personal jurisdiction in
California.”) Here, by contrast, we have a clear, unambiguous forum-selection clause of the type
that, as I have noted, has been enforced both pre- and post-Global Packaging in California.
Further, we have consent, not to a specific venue in a specific county, but to “the appropriate
state or federal court located in California.” There is no doubt that the clause at issue here refers
to the selection of a forum, not a venue. Finally, unlike the clause in Global Packaging, which
contained a choice of jurisdictions based on who was suing whom8 and “the jurisdiction in which
the Software is located,” here we have a straightforward agreement to resolve all disputes arising
from the escrow agreement in the courts (federal or state) of a single state. Thus, many of the
problems identified by the court in Global Packaging are simply not present with respect to the
clause at issue here. For all of these reasons, I believe that a California court could well
determine that, despite Global Packaging, it possessed jurisdiction over the parties to the escrow
agreement by virtue of the forum-selection clause.

         Because I would find that neither Cal Code Civ Proc § 410.40 nor Global Packaging,
together or individually, support finding that a California court necessarily would find that it
lacks personal jurisdiction over defendant, I would hold that plaintiff had failed to carry its
burden of showing that the selected forum is “unavailable or unable to accomplish” substantial
justice, see Smith, Valentino & Smith, Inc, 17 Cal 3d at 495–496, and would affirm the trial court
on that basis.9

                                      III. MICHIGAN LAW

        In finding that Michigan law also supports reversal of the trial court, the majority
essentially relies on its finding that a California court would not allow plaintiff to maintain this
action. Specifically, the majority holds that MCL 600.745(3)(b) (plaintiff cannot secure
effective relief) and (e) (unfair or unreasonable to enforce forum-selection clause for some other
reason) favor reversal of the trial court because a California court would lack of personal
jurisdiction over defendant. As stated above, I disagree with that conclusion. In the absence of



8
  The clause provided in part, “Such venue shall be determined by the choice of the plaintiff
bringing the action.” Global Packaging, 196 Cal App at 1627.
9
  I note that the clause at issue selects the forum as being “the appropriate state or federal court
located in California.” Federal law governs a federal district court’s decision whether to give
effect to a parties’ forum-selection clause. Stewart Org, Inc v Ricoh Corp, 487 US 22, 32; 108 S
Ct 2239; 101 L Ed 2d 22 (1988); see also 28 USC 1404. And a federal court (assuming subject
matter jurisdiction) would most likely uphold the forum-selection clause as valid under the rule
of The Bremen, 407 US 1 at18, as I have discussed.

                                                -8-
that conclusion, I agree with the majority that there is no reason why Michigan law would not
favor the enforcement of the forum-selection clause at issue. Michigan courts “generally enforce
contractual forum-selection clauses” assuming that certain conditions, enumerated in
MCL 600.745(3)(a)-(e), are not present. Turcheck v Amerifund Financial, Inc, 272 Mich App
341, 348; 725 NW2d 684 (2006). In particular, while I agree with the majority that plaintiff has
not demonstrated that MCL 600.745(3)(c) applies to the instant action, I would clarify that the
majority does not hold, nor did Turcheck hold, that MCL 600.745(3)(c) can never be applicable
in cases involving forum-selection clauses. Rather, as Turcheck states, and as the majority
references (“nothing happened after the parties entered into the agreement that would render
California more inconvenient now than it was when the agreement was made”), the question
becomes whether the inconvenience was “within the contemplation of the parties at the time of
contracting.” Turcheck, 272 Mich App at 350. Here, plaintiff’s claim that the witnesses and
evidence in the instant case are located in California is unavailing, because that is the type of
inconvenience that was easily contemplatable at the time the parties entered into the escrow
agreement; indeed, it is precisely the type of claim of inconvenience this Court found unavailing
in Turcheck. Id. at 349-350.

       For all of these reasons, I would refrain from attempting to divine what a California court
would conclude with respect to its own jurisdiction, and would instead affirm the trial court’s
enforcement of the parties’ contractual forum-selection clause, and its order granting defendant’s
motion for summary disposition.10



                                                             /s/ Mark T. Boonstra




10
   In both its brief on appeal and at oral argument, defendant has stated its intent to add Citywide
Lending Group International (a California entity and a party to the underlying escrow agreement)
as a party to this action, at least if further proceedings take place in Michigan. While I, like the
majority, find a statement of a possible future action by a party to be an insufficient basis to
make an appellate ruling, I also would not go as far as does the majority opinion to make a
determination whether Citywide is a necessary party under MCR 2.205(A). Although the trial
court mentioned in passing that Citywide was an “apparently necessary California entity,” that
statement, in context, was not a basis for the trial court’s holding. I would thus leave for a later
time the issue of if, and how, the addition of Citywide as a party (should it occur) might affect
the jurisdictional analysis in this case.

                                                -9-
