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SECOND DIVISION

December 8, 1998

No. 1-97-2991

PRESIDING JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:

In this permissive interlocutory appeal taken pursuant to Supreme Court Rule 306 (155 Ill.2d R.306), defendant, Bill Berger Associates, Inc., appeals from the denial of its motion to dismiss thecomplaint of plaintiff Eva Dreikurs Ferguson. In that complaint, which was filed by Fergusonindividually and as executor of the estate of Sadie E. Dreikurs, the plaintiff sought a declarationcancelling the literary agency relationship between the defendants, Bill Berger⁽¹⁾ and Bill Bergerand Associates, Inc., and the plaintiff's deceased father, Rudolf, and her deceased mother, Sadie.She also sought an accounting of royalty and commission transactions received by the defendantsin connection with that relationship. Defendant, Bill Berger Associates, Inc. (hereinafter referredto as "defendant"), a corporation with its principal place of business in New York, moved todismiss plaintiff's action contending that the action violated the forum selection provision of acontract entered into between the plaintiff's father and a German publisher. The defendantalternatively contended that the complaint should be dismissed on the grounds offorum nonconveniens. The trial court denied the defendant's motion; and the defendant'spetition for leaveto appeal to this court was granted pursuant to Supreme Court Rule 306. For the reasonsdiscussed below, we affirm the denial of the defendant's motion to dismiss on the grounds offorum non conveniens. We also find that we arewithout jurisdiction to hear defendant's appealfrom the portion of the order denying dismissal on the grounds of forum selection.

BACKGROUND FACTS

The pleadings and affidavits of the parties alleged the following facts. The plaintiff is thedaughter of deceased author Doctor Rudolf Dreikurs, owner of certain copyrights in connectionwith books he authored or co-authored. Upon Rudolf's death, the ownership rights to thosecopyrights passed to plaintiff's mother, Sadie E. Dreikurs, and upon her death temporarily passedto plaintiff as executor of Sadie's estate. (Upon the closure of that estate, the plaintiff willsucceed to all ownership rights in the copyrights.) The pleadings alleged that Rudolf entered intoa literary agency relationship with the defendant in 1963 and also at that time executed apublication contract between Meredith Press, a division of Meredith Publishing Company, andhimself for the publication of "Children: The Challenge", a book he co-authored.⁽²⁾ Thecomplaint also alleged that in 1964 Rudolf executed an agreement with a German publisher,Ernst Klett Verlag, for the German language rights pertaining to that book. (The defendantalleged that it had prepared these contracts for the parties' signatures.) Each of these agreements,which were attached to plaintiff's complaint and defendant's motion to dismiss, set forthdefendant's status as Rudolf's agent and authorized the defendant to collect and receive moniesdue Rudolf and to otherwise act on Rudolf's behalf. The German agreement, unlike the MeredithPress agreement, contained forum selection and choice of law clauses, respectively requiring thatall disputes be settled by "defendant's competent home courts, or at claimant's election byarbitration in Zurich, Switzerland" and that the terms of the agreement be governed andinterpreted according to the laws of the State of New York.

The plaintiff's complaint alleged that no independent written contracts were executedbetweenRudolf, Sadie or Eva and the defendant authorizing the defendant to collect royalties and toretain a portion thereof, to make payments to other representatives out of the royalty paymentsreceived, or to enter into publishing agreements or addenda to those agreements on their behalf.The plaintiff sought a declaration that, pursuant to the common law and to the Durable Power ofAttorney Law (755 ILCS 45/2-1 et seq. (West 1996)), any authorityof the defendant to representthe Dreikurs' copyright interests, pursuant to any agency agreement or power of attorney,terminated by operation of law as of the date of Sadie's death on February 26, 1996.⁽³⁾ Theplaintiff sought a further declaration that the defendant was not authorized to permit Paul &PeterFritz, AG (unidentified in the complaint) to execute an addendum to the German contract on June6, 1996.

In its motion to dismiss, the defendant alleged that the gravamen of the plaintiff's complaintarose from execution of an addendum to the German agreement concerning the right to sellRudolf's book in quality paperback volume form. The defendant alleged that the addendum wasexecuted by Paul & Peter Fritz, AG, the successor to Linder AG, defendant's foreignsubagent.(The 1964 German Agreement authorized Linder AG, "acting on behalf of Bill Berger Assoc.,"to act as Rudolf's agent with respect to collecting money due under the terms of the agreementand to act on Rudolf's behalf.) The defendant cited to the forum selection provision of theoriginal German agreement and the requirement that the dispute be resolved in the defendant'shome court, namely, the New York court. The defendant alternatively argued that the disputeshould be dismissed on the basis of forum nonconveniens. In this argument, which wassupported by the affidavit of William Berger and by a letter written by Peter S. Fritz of Paul&Peter Fritz AG, the defendant contended that trial in New York would be more convenient andwould better serve the ends of justice. The defendant argued that such a conclusion waswarranted by a consideration of the location of the parties and witnesses, the location of thedocuments, the relative difference in the economic burdens imposed upon the parties by thechoice of the forum state, the place of execution and performance of the contract, the choice oflaw provision in the German agreement, and the public interest factor of burdening Illinois courtswith a matter having no "meaningful connection" to Illinois.

In his affidavit attached to defendant's motion to dismiss, William Berger, president and soleshareholder of the defendant corporation, averred that he was a New York resident and that thedefendant was a New York corporation with its principal place of business being in New York.He stated that he was 74 years of age, legally blind, and unable to travel without assistance. Hefurther averred that he never travelled to Illinois to transact literary agency business; that he didnot contact Rudolf Dreikurs in Illinois to offer him literary representation; and that BergerAssociates did not solicit business in Illinois. He stated that the contract between Rudolf andMeredith Press relative to "Children: The Challenge" was negotiated from the office of BergerAssociates in New York; that the contract was last signed by the publisher's agent in New Yorkand was to be performed in New York; and that Meredith Press' assignee, Penguin USA, isheadquartered in New York. Berger averred that the contract between Rudolf and the Germanpublisher Ernst Klett Verlag was negotiated from the office of Berger Associates in New Yorkand from the office of Berger's subagent, Linder AG (now known as Paul & Peter FritzAG), inSwitzerland. He stated that all royalties were paid to and collected by Berger Associates in NewYork and that payments to Doctor Dreikurs and his heirs were made from New York. He alsostated that, to the best of his knowledge, all of the files and persons involved with the publishingcontract, other than the foreign edition, were New York residents. He further stated that all of thepublishing industry and literary agency experts that he would retain to render opinion testimonyresided in New York.

Also attached to defendant's motion as an exhibit was a letter from Peter S. Fritz of Paul& PeterFritz AG. In the letter, Fritz stated that Linder AG underwent a name change in 1984 to Paul&Peter Fritz AG and that the German publisher Ernst Klett Verlag underwent a name change toKlett-Cotta Verlag. He stated that neither entity operated offices in Illinois and that each of theirprincipal contacts in the United States were with agents and publishers in New York. Fritz alsostated that travel to Illinois in connection with the lawsuit would be very costly and inconvenientwhereas travel to New York could be connected with other business matters to offset travelcosts.

In response, the plaintiff moved to strike the letter exhibit because it was unverified,unswornand not in affidavit form as required by Supreme Court Rule 187 (155 Ill. 2d R. 187). Theplaintiff also argued that the defendant could not rely on the forum selection provision of theGerman agreement because the defendant was not a party to that contract. The plaintiff furtherargued that the gravamen of her complaint was not the execution of the addendum to the Germanagreement but, rather, defendant's agency status and the termination of that status by operation oflaw upon the death of Sadie Dreikurs. The plaintiff contended that her complaint also cited theMeredith Press contract, which did not have a forum selection clause, and the Illinois DurablePowers of Attorney Act (775 ILCS 45/2-1 et seq. (West 1996)). Withrespect to the defendant'sforum non conveniens contention, the plaintiff arguedthat Illinois was her home forum; thatdeference should be given to her choice of forum; and that either party would have to bear theburden of out-of-state litigation, including the costs of document production and witness travel.The plaintiff further contended that her action only would require the testimony of plaintiff andWilliam Berger and that the inconvenience to William Berger was not sufficient to justify thedismissal of the Illinois action.

The trial court denied defendant's motion to dismiss finding that the Illinois court couldeasilydetermine the key issue in the case which dealt with the relationship between Rudolf Dreikursand the defendant and the alleged termination of that relationship. The court found that thedefendant could obtain evidence from William Berger by way of an evidence deposition ifnecessary. The court also rejected defendant's forum selection contention finding that the forumselection provision was only present in the German agreement and that that agreement did notcreate the agency relationship between Rudolf Dreikurs and the defendant.

The defendant appeals contending that the trial court abused its discretion in denying themotionto dismiss on the basis of violation of the forum selection clause and on the basis offorum nonconveniens.

DISCUSSION

I. Forum Selection

Initially, we must determine whether we have jurisdiction to review defendant's appeal fromthedenial of his motion to dismiss on the grounds of a forum selection clause violation.⁽⁴⁾ It isaxiomatic that an appellate court may only hear appeals from final judgments, unless anexception specified by the supreme court rules apply. Ill. Const. 1970, art VI,