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Tetra Tech Tesoro Inc. v. JAAAT Tech. Servs. LLC

Two trial courts properly granted the defendant's motion to dismiss the plaintiff's breach of contract suits for lack of venue based on Virginia choice-of-forum clauses in the contracts.

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In the role of subcontractor, Tetra Tech Tesoro, Inc. Tesoro, a Virginia corporation, entered into two identical subcontracts, which it drafted, for work to be performed at federal installations in Georgia. The prime contractor was also a Virginia entity, and Tesoro included within the subcontracts Virginia choice-of-forum and choice-of-law clauses. Later, based on the prime contractor’s alleged breach of each contract, Tesoro filed separate actions in two Georgia courts and argued that under Georgia law, the forum selection clause was not enforceable. In these consolidated appeals, Tesoro appeals the orders entered in each case, which granted the defendants’ motion to dismiss for lack of venue based on the Virginia choice of forum clause found in each agreement. For the reasons that follow, we affirm.

We review de novo a trial court’s ruling on a motion to dismiss based on a forum selection clause. Crump Ins. Svcs. v. All Risks, Ltd., 315 Ga. App. 490, 491 727 SE2d 131 2012; Carson v. Obor Holding Co., 318 Ga. App. 645, 646 734 SE2d 477 2012; see also Beasley v. Beasley, 260 Ga. 419, 420 396 SE2d 222 1990 On a motion to dismiss for lack of jurisdiction, the defendant may rely on evidence not contained in the pleadings and the plaintiff may rebut that evidence, but in that event, absent oral testimony, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non deferential standard..

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