dissenting.
I respectfully dissent. I cannot agree with the majority that the contract provision at issue here is necessarily enforce*256able. I say "necessarily" because I believe it is premature to make such a decision. The trial court did not address the issue whether the clause was enforceable. As the majority points out, such a determination is very fact sensitive. See The Bremen v. Zepata Off-Shore Co. (1972), 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513. The change of venue in this case was granted because Warrick County is a preferred venue and, also, because the validity of the contract itself was challenged, the trial court did not consider the effect of the venue selection clause.
Assuming for the moment the validity of the contract, we cannot say that the venue selection clause is enforceable without establishing whether the contract provision was freely negotiated and unaffected by fraud, undue influence, or overwhelming bargaining power. Bremen, supra. Contrary to the majority's implication, Carnival Cruise Lines, Inc. v. Shute (1991), 499 U.S. -, 111 S.Ct. 1522, 113 L.Ed.2d 622, does not hold that a forum selection clause in a form contract is always permissible even though not negotiated. Whether the clause was negotiated is one factor weighed against others. In Carnival, oth er factors (cited by the majority, at 251) weighed more heavily toward enforcing the clause. I do not believe those factors are present here. While I do not go so far as to say that a venue selection clause in a form contract is never enforceable, I do believe it is necessary to show that the party challenging the provision had notice of it and was not compelled to accept it by fraud, undue influence or overwhelming bargaining power.
Until a trial court has addressed the issue whether this particular contract provision is enforceable in this particular case, we should refrain from making a determination.
I also cannot agree with the majority's conclusion that the validity of the contract was not effectively challenged. I agree with the majority that a responsive pleading was not filed by Wilder or Perry. However, the question that must be answered is whether the presumption of a validly executed contract exists as soon as the complaint with the contract attached is filed, or, when a responsive pleading is filed that does not deny the execution. I believe that the better approach is to read TR. 9.2(B) such that the valid execution of a contract is not presumed until a responsive pleading is filed that does not deny execution in accordance with TR. 9.2(B), or perhaps until the time permitted for filing a responsive pleading has run without a response being filed. This approach retains the substance of T.R. 9.2(B), which clearly contemplates a responsive pleading being filed, and also accommodates those situations, such as the one here, where the execution of a contract is challenged prior to filing a responsive pleading denying the execution as required by T.R. 9.2(B). Specifically, here, for purposes of the motion for change of venue, valid execution of the contract should not be presumed because T.R. 9.2(B) does not come into play until a responsive pleading is filed. Mechanics, in order to oppose the change of venue, should be required to prove the contract was validly executed. Mechanics did not do this.
The trial court here did not reach the issue of the enforceability of the venue selection clause because the validity of the contract itself had been challenged. Thus, the trial court properly granted the motion and transferred the case to Warrick County, a county of preferred venue. It should be for the Warrick County court to determine if the contract itself is valid and, if so, whether the venue clause is enforceable.