Cardenas Mktg. Network, Inc. v. Pabon

• Decision Date: 11 May 2012
• Docket Number: No. 1–11–1645.,1–11–1645.
• Citation: 972 N.E.2d 680,361 Ill.Dec. 887,2012 IL App (1st) 111645
• Parties: CARDENAS MARKETING NETWORK, INC., a Florida Corporation, Plaintiff–Appellee, v. Evaristo “Artie” PABON, Jr., d/b/a Latin Entertainment Group, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 111645

972 N.E.2d 680

361 Ill.Dec. 887

CARDENAS MARKETING NETWORK, INC., a Florida Corporation, Plaintiff–Appellee,

v.Evaristo “Artie” PABON, Jr., d/b/a Latin Entertainment Group, Defendant–Appellant.

No. 1–11–1645.

Appellate Court of Illinois, First District, Fifth Division.

May 11, 2012.

Nicholas A. Caputo, Ljubica Popovic, Caputo Law Firm, Chicago, for appellant.

Terrence M. Jordan, Chicago, for appellee.

OPINION

Justice McBRIDE delivered the judgment of the court, with opinion.

¶ 1 Defendant, Evaristo “Artie” Pabon, Jr., d/b/a Latin Entertainment Group, appealsunder Supreme Court Rules 306(a)(2) and (a)(3) from an order of the circuit court of Cook County denying his motion to dismiss plaintiff Cardenas Marketing Network, Inc.'s complaint for lack of personal jurisdiction and forum non conveniens. Ill. S.Ct. Rs. 306(a)(2), (a)(3) (eff. Feb. 16, 2011). Defendant argues that the trial court erred (1) in concluding it had specific personal jurisdiction over him; and (2) in finding that forum is proper in Illinois.

¶ 2 Plaintiff's complaint against defendant pled two counts, breach of contract and an account stated. The complaint alleged that plaintiff is a Florida corporation doing business in Cook County. Defendant is an individual who resides in Connecticut, but does business in various places throughout the country, including Cook County, under the “assumed name,” Latin Entertainment Group.

¶ 3 In December 2006, Henry Cardenas on plaintiff's behalf and defendant entered into “an oral agreement for the copromotion of a series of entertainment events.” In December 2007, they orally agreed to copromote another series of entertainment events. The complaint states that “some” of the copromotion events written agreements were signed by the parties. The complaint alleges that the series of entertainment events included three events in Washington, D.C., one in Connecticut and one in Chicago.

¶ 4 In October 2007, at the conclusion of the copromoted events, a balance remained owing from defendant to plaintiff in the amount of $204,784.54. Plaintiff alleged that it fully performed under the agreement and made a demand for payment on defendant for the amount due. Plaintiff requested the amount due with prejudgment interest from October 31, 2007, until judgment.

¶ 5 Plaintiff attached several exhibits to the complaint, including three written contracts for the copromotion of specific entertainment events. The attached contracts were for events occurring in Connecticut and Washington, D.C., in 2007. Each of the contracts contained the following clause.

“Governing Law: This Agreement shall be construed in accordance with the laws of the State of Illinois applicable to agreements which are executed and fully performed within the State of Illinois. All actions, proceedings or litigation brought by the Parties shall be instituted and prosecuted solely within City of Chicago, State of Illinois. The Parties hereby consent to the jurisdiction of the state courts of Illinois and federal courts located within the State of Illinois with respect to any matter arising out of or relating to this Agreement.”

¶ 6 In April 2010, the trial court entered an order holding defendant in default for failure to appear and set further proceedings to “prove up” the judgment. In May 2010, defendant filed a pro se motion, entitled “Opposition to Motion to Asses[s] Damages and Motion to Vacate Default and Motion to Dismiss.” In his motion, defendant asserted that the trial court could not assess damages against him. Defendant argued that he was not subject to personal jurisdiction in Illinois because service was improper because it was conducted on defendant individually, but plaintiff's contract was with Latin Entertainment Group, a corporation. Defendant also contended that Illinois did not have specific personal jurisdiction over him because he has not purposefully availed himself of doing business in Illinois when a company with which he is associated enters into a contract with a business that does business in Illinois. Finally, defendant argued that plaintiff's complaint failed to state a claim because plaintiff failed to allege one or more required elements for each claim and plaintiff did not have any dealings with defendant in his individual capacity. No ruling referencing this specific motion is in the record on appeal.

¶ 7 In June 2010, the trial court entered an agreed order, stating that the cause was coming to be heard for status and on “Defendants' Motion to Vacate Default Judgment, For Leave to File Appearance, instanter, and for Extension of Time to Answer or Otherwise Plead.” The order vacated any and all defaults entered against defendant and/or Latin Entertainment Group, granted defense counsel leave to file an appearance, and granted a 28–day extension of time for defendant to file an answer or other pleading.

¶ 8 In July 2010, plaintiff filed a first amended complaint. The complaint realleged the breach of contract and account stated counts from the original complaint and added four additional counts. Plaintiff alleged common law fraud (count III), unfair trade practice under Connecticut statutes (count IV), breach of contract (count V), and breach of fiduciary duty (count VI). All of the new counts were based on an October 2009 oral agreement between Henry Cardenas on plaintiff's behalf and defendant to coproduce a live music event on January 30, 2010, at the Mohegan Sun Casino in Uncasville, Connecticut. Plaintiff alleged that defendant directed the Mohegan Sun Casino to pay the gate proceeds from the event to him, and defendant failed to deliver the proceeds to plaintiff as previously agreed. Plaintiff requested the amount of the gate proceeds, $459,000, as well as punitive damages. The amended complaint included the same exhibits with one addition, a letter from defendant to an individual at the Mohegan Sun Casino directing the casino to forward all box office proceeds from the January 30, 2010, event to plaintiff.

¶ 9 On August 10, 2010, defendant filed a motion to dismiss plaintiff's complaint for forum non conveniens pursuant to section 2–619 of the Code of Civil Procedure (735 ILCS 5/2–619 (West 2010)), or in the alternative to transfer to another forum. In the motion, defendant argued that plaintiff is a Florida corporation while defendant resides in Connecticut and Latin Entertainment Group is a Connecticut limited liability company with its principal place of business in Connecticut. Defendant further asserted that the events that are the subject of the complaint occurred in Washington, D.C., and Connecticut. Additionally, defendant argued that the contract was executed by Latin Entertainment Group in Connecticut, the complaint sought relief in part under Connecticut state statutes, and the witnesses necessary to the litigation were not Illinois residents. Defendant contended that Illinois had no legitimate connection to the case and was not a proper forum. Defendant admitted that the contract contained a forum selection clause indicating Illinois as the proper forum, but asserted that the clause should not be enforced because of the complete lack of any connection to Illinois.

¶ 10 On August 11, 2010, defendant filed a motion to dismiss plaintiff's complaint for lack of personal jurisdiction pursuant to section 2–209 (735 ILCS 5/2–209 (West 2010)). Defendant argued that the court did not have personal jurisdiction over defendant under section 2–209 because defendant is not an Illinois resident, does not do business in Illinois, does not have offices or property in Illinois, and does not market, advertise, promote or sell any products in Illinois to establish general or specific jurisdiction. Defendant also asserted that the contract that is the subject of the litigation was not signed or executed in Illinois, but instead Connecticut, Florida and Washington, D.C. Defendant contended that he had “no minimum contacts with Illinois nor has he availed himself of the privileges of conducting activities within Illinois.”

¶ 11 Plaintiff filed responses to both motions. In its response to the forum non conveniens motion, plaintiff asserted the validity of the forum selection clause in the contract, plaintiff's offices in Chicago, and one of the entertainment events took place in Chicago. The response to defendant's motion to dismiss for lack of personal jurisdiction also relied on the forum selection clause and maintained that defendant performed part of the contract at issue in counts I and II in Chicago, allowing for the court to have personal jurisdiction over defendant pursuant to section 2–209(a)(7) (735 ILCS 5/2–209(a)(7) (West 2010)). Section 2–209(a)(7) provides that a person has submitted himself to the jurisdiction of the court of Illinois by “[t]he making or performance of any contract or promise substantially connected with this State.” 735 ILCS 5/2–209(a)(7) (West 2010).

¶ 12 While the motions were pending, the parties participated in limited discovery, including the taking of depositions of Henry Cardenas and defendant. At defendant's deposition, plaintiff's attorney asked numerous questions about the location of several individuals and about defendant's bank accounts. When asked about his agreement with Cardenas, defendant answered that they entered into a verbal agreement in Connecticut in 2006. Defendant explained that Cardenas asked for the rights to put on shows in Chicago for tours owned by defendant's company, Latin Entertainment Group. Defendant testified that he brought the artist and plaintiff put on the show. Defendant stated that he put on three shows in Chicago with plaintiff in 2006 and 2007. Defendant did not do business with any companies other than plaintiff in Illinois.

¶ 13 Defendant made the following statement about the parties' agreement.

“[E]very deal stood on its own. So if we did this show, it was over, if I lost, he lost, it's closed then we...