2018 IL App (3d) 170020 

Opinion filed March 14, 2018 

_____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2018 

SLOAN BIOTECHNOLOGY 

LABORATORIES, LLC, an Illinois 

Limited Liability Company, 

 

Plaintiff-Appellant, 

 

 v. 

ADVANCED BIOMEDICAL 

INCORPORATED, a Delaware 

Corporation, 

Defendant-Appellee.

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Appeal from the Circuit Court

of the 10th Judicial Circuit, 

Peoria County, Illinois.

Appeal No. 3-17-0020 

Circuit No. 16-MR-478 

The Honorable 

Katherine Gorman Hubler, 

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 
2 

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 
3 

(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 
4 

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 
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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: 
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“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— 
7 

 [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.”
8 

¶ 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.
9 

 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 
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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 
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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 
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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). 
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¶ 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. 
14 

¶ 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 
15 

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 
16 

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 
17 

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
18 

¶ 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.