Wimmer v. Koenigseder, 2-83-0891

• Decision Date: 19 October 1984
• Docket Number: No. 2-83-0891,2-83-0891
• Citation: 83 Ill.Dec. 368,470 N.E.2d 326,128 Ill.App.3d 157
• Parties: , 83 Ill.Dec. 368 Irene Silva WIMMER, as Special Administrator Pendente Lite for the Estate of Judith Ann Silva, Deceased; and Irene Silva Wimmer, Individually, Plaintiffs- Appellants, v. Lawrence KOENIGSEDER and Gil Meisgeier d/b/a Rock-It North and Horsin' Around; Rock-It North and Horsin' Around, Wisconsin Corporations; Rita Meisgeier, Christopher Meisgeier and Mark Meisgeier, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 326

470 N.E.2d 326

128 Ill.App.3d 157, 83 Ill.Dec. 368

Irene Silva WIMMER, as Special Administrator Pendente Lite for the Estate of Judith Ann Silva, Deceased; and Irene Silva Wimmer, Individually Plaintiffs- Appellants, v. Lawrence KOENIGSEDER and Gil Meisgeier d/b/a Rock-It North and Horsin' Around; Rock-It North and Horsin' Around Wisconsin Corporations; Rita Meisgeier, Christopher Meisgeier and Mark Meisgeier, Defendants-Appellees.

No. 2-83-0891.

Appellate Court of Illinois Second District.

Oct. 19, 1984.

James J. DeSanto, Waukegan, Thomas M.P. Hannigan, Mundelein, for plaintiffs-appellants.

Wildman, Harrold, Allen & Dixon, Steven L. Larson, William A. Holmquist, Waukegan, for defendants-appellees.

HOPF, Justice:

Plaintiff, Irene Silva Wimmer, individually and as special administrator pendente lite for the estate of Judith Ann Silva, appeals from an order granting defendants' motion to dismiss plaintiff's complaint for lack of personal jurisdiction. Defendants include Gilbert, Rita, Christopher and Mark Meisgeier, as well as two foreign corporations, Rock-It North and Horsin' Around, and Lawrence Koenigseder. The trial court also granted defendant Koenigseder's motion for transfer to McHenry County.

On appeal, plaintiff contends that the trial court erred in dismissing the complaint for want of jurisdiction and erred in denying her motion for discovery into the jurisdictional facts raised by defendants' motion to dismiss. For the reasons discussed below, we believe the trial court must be reversed.

The first-amended complaint alleged that on July 17, 1982, while a passenger in a car driven by Lawrence Koenigseder, Judith was injured in an accident in McHenry County, Illinois. She died from these injuries on July 26, 1982.

Prior to the accident 19-year-old defendant Koenigseder and 17-year-old Judith had been served intoxicating liquors at the defendant's tavern, the Rock-It North and Horsin' Around in Trevor, Wisconsin. Both taverns were approximately two-tenths of a mile north of the Wisconsin-Illinois line. Both Koenigseder and Judith were Illinois residents. The complaint alleged that defendant Koenigseder became intoxicated at the aforesaid clubs and that the car he was operating left the road and collided with a utility pole.

The plaintiff commenced this action against Koenigseder and the other defendants seeking recovery under the Wrongful Death and Survival Act (Ill.Rev.Stat.1981, ch. 70, pars. 1, 2.1), and the Illinois Dramshop Act (Ill.Rev.Stat.1981, ch. 43, par. 135). The Meisgeiers were served in Wisconsin, filed special appearances and moved to quash service for want of jurisdiction. Their affidavits stated they are not Illinois residents and do not do business in Illinois as claimed in the complaint. Plaintiff's complaint also alleged that defendants' negligence was the direct and proximate cause of the injuries and subsequent death of plaintiff's minor decedent.

Affidavits of the plaintiff's attorneys were filed in accordance with Supreme Court Rule 191(b) (87 Ill.2d R. 191(b)). These affidavits revealed, among other things, that Gil Meisgeier met with police authorities of border towns, Antioch, Winthrop Harbor, Zion, and the Lake County Sheriff's office for the purpose of discussing the problem of selling liquor to Illinois residents under the age of 21. He assured the local officials he would remind his patrons to drive safely. Defendant also appeared before the Wisconsin legislature to speak in opposition to the raising of the drinking age to 21. He argued that it would be detrimental to Wisconsin tourism. He also said his waitresses serve non-alcoholic spacers to curb excessive drinking. It was also alleged that the defendant taverns handed out maps and fliers to its Illinois patrons that directed patrons to the back roads of Illinois which are not heavily patrolled by police.

In his deposition, Antioch Police Chief Charles Miller stated that in making a study for the Illinois Department of Transportation he checked the parking lots of the two taverns in question in December 1982 and January 1983 and approximately 90% of the vehicles in the parking lots had Illinois license plates. Miller also stated that the number of drunk driving arrests increased dramatically after Illinois raised its drinking age to 21, with most arrests occurring on the southbound lane of Route 83. These people were Illinois residents under the age of 21 returning from the defendant taverns.

Plaintiff filed other documents which, she contends, establish the basis for personal jurisdiction over the defendants in accordance with the Illinois long-arm statute. (Ill.Rev.Stat.1981, ch. 110, par. 2-209.) These documents alleged the following facts: Gil and Rita Meisgeier own real property in Illinois; defendants advertised in the Illinois Entertainer, a monthly newspaper published in Mount Prospect, Illinois. They had advertisements appearing in the May, July, August, and October 1982 editions. The ads stated that the taverns are located on "ROUTE 83 JUST NORTH OF THE ILLINOIS STATE LINE" and "YOU NEED ONLY BE 18 TO BLAST OFF AT ROCK-IT NORTH." The June 1983 issue contained the statement "Entertainment Management by ARK (312) 932-7535 and Rock-It North" at the bottom of the advertisement. This telephone number is an Illinois exchange through which bookings may have been arranged.

Defendants' motion to dismiss was granted, and the motion for rehearing was denied. Plaintiff appeals.

The jurisdictional issue presented in the instant case has not been decided in Illinois. Thus, we are faced with the question of whether the defendants committed acts which subjected them to in personam jurisdiction under the Illinois long-arm statute, which provides in pertinent part:

"(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this State;

(2) The commission of a tortious act within this State; * * *." Ill.Rev.Stat.1981, ch. 110, pars. 2-209(a)(1), (2).

Plaintiff argues that defendants both committed a tort in Illinois and transacted business so as to justify the assertion of jurisdiction.

The determination of whether a nonresident defendant has performed acts sufficient to have submitted to the jurisdiction of the forum State is based upon due process notions of whether certain "minimum contacts" exist between the defendant and the forum such that requiring him to defend there is reasonable and does not offend "traditional notions of fair play and substantial justice." (World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 100 S.Ct. 559, 564-65, 62 L.Ed.2d 490; International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102.) The fair play and substantial justice statements were narrowed somewhat by the requirement of Hanson v. Denckla (1958), 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, wherein the court stated:

"[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."

Another critical concern is that some relationship exists among the defendants, the forum and the litigation to make subjecting the defendants to suit reasonable. (Shaffer v. Heitner (1977), 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683.) Thus, the determination of the sufficiency of minimum contacts is a flexible one, which focuses on the nature of defendant's activities within the forum in the context of the circumstances presented. International Shoe Co. v. Washington (1945), 326 U.S. 310, 319, 66 S.Ct. 154, 160, 90 L.Ed. 95, 104; Braband v. Beech Aircraft Corp. (1978), 72 Ill.2d 548, 21 Ill.Dec. 888, 382 N.E.2d 252, cert. denied (1979), 442 U.S. 928, 99 S.Ct. 2857, 61 L.Ed.2d 296.

Until 1981, Illinois courts followed this approach and interpreted the long-arm statute so as to permit the assertion of jurisdiction over nonresident defendants to the extent permitted by the due process clause. (Nelson v. Miller (1957), 11 Ill.2d 378, 389, 143 N.E.2d 673; Coca-Cola Co. v. A. Epstein & Sons, International, Inc. (1980), 89 Ill.App.3d 253, 257, 44 Ill.Dec. 551, 411 N.E.2d 917.) Then, beginning with Green v. Advance-Ross Electronics Corp. (1981), 86 Ill.2d 431, 56 Ill.Dec. 657, 427 N.E.2d 1203, the Illinois Supreme Court made it plain that it would not necessarily expand the Illinois long-arm statute to the full extent the due process clause would allow. (Green v. Advance-Ross Electronics Corp. (1981), 86 Ill.2d 431, 436-37, 56 Ill.Dec. 657, 427 N.E.2d 1203; Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill.2d 190, 197, 57 Ill.Dec. 730, 429 N.E.2d 847.) Thus, we must first consider whether defendants' conduct falls within the meaning of the long-arm statute, and, more importantly, whether there are sufficient "minimum contacts" to justify the exercise of jurisdiction by the Illinois courts over the defendants in compliance with due process safeguards. Veeninga v. Alt (1982), 111 Ill.App.3d 775, 777, 67 Ill.Dec. 544, 444 N.E.2d 780; see Deluxe Ice Cream Co. v. R.C.H. Tool Corp. (7th Cir.1984), 726 F.2d 1209, 1214.

It has been held that the mere solicitation for business does not constitute the doing of business in Illinois. In Loggans v. Jewish Community Center (1983), 113 Ill.App.3d 549, 69 Ill.Dec. 484, 447 N.E.2d 919, a Wisconsin summer camp placed an advertisement in Illinois papers and agreed to allow 20 Illinois adults to use the camp every year. These activities were not sufficiently substantial to constitute the doing of business in Illinois....