Interlocutory Appeal Dismissed Where Certified Issues Were Not in Dispute

Where the issues certified for interlocutory appeal (under Ala. R. App. P. 5) proved not to be in dispute, the Alabama Supreme Court decided that permission to appeal had been improvidently granted. Carfax, Inc. v. Browning, No. 1050291 (Ala. Sept. 21, 2007). The Court thus dismissed the appeal.

The parties entered into a contract over the Internet. Their agreement contained a forum selection clause under which lawsuits related to the contract could be filed only in Virginia. The defendant invoked this clause and moved the circuit court to dismiss the suit. The court refused. It found the contract valid and enforceable but ruled that litigating in Virginia would be “so gravely difficult and inconvenient” for the plaintiff that it would effectively deny the plaintiff his day in court. The circuit court certified the case for permissive interlocutory appeal, identifying the following issues for review:

  1. Is a forum selection clause in a contract created on the Internet enforceable?
  2. Does “mere inconvenience or impracticability” make a forum selection clause unenforceable?

The Supreme Court of Alabama granted the petition for leave to appeal. “After reviewing the record . . . and the briefs,” however, the court changed its mind. Neither of the issues certified for appeal constituted a “controlling question of law.” Neither was even contested. “The first issue — the enforceability of contracts formed on the Internet — [was] not in dispute.” The plaintiff conceded that Internet-based contracts are as enforceable as any other. The circuit court, too, had expressly found the contract valid.

Similarly, on the second issue, neither party argued that “mere inconvenience or impracticability” could squelch a forum selection clause. The parties and the trial court all recognized the correct principle: that such clauses could be negated only where trial in the contractually chosen forum would be “gravely” or “seriously inconvenient.” The only issue, then, was whether the circuit court had correctly applied that standard. But this last issue was not before the court. The court consequently dismissed the appeal.