Colletti v. Crudele

• Decision Date: 10 May 1988
• Docket Number: No. 87-1711,87-1711
• Citation: 169 Ill.App.3d 1068,523 N.E.2d 1222
• Parties: , 120 Ill.Dec. 311 Bridget COLLETTI, as Administratrix of the Estate of Bernard Colletti, Deceased; Bridget Colletti, individually; George Colletti; Stephen B. Colletti; Sarah Esposito; Marie Colletti; Josephine Colletti; and Franchesca Colletti, a minor, By and Through her mother and next friend, Bridget Colletti, Plaintiffs-Appellants, v. Vito CRUDELE, as Administrator of the Estate of Nicholas Crudele, Deceased; Bynum Transport, Inc.; Clarence Lee; Cintran, Inc.; Rick Jurski; Avis Rent A Car System, Inc.; Gas Village; P.V. Holding Corporation; and Robert Esposito, Defendants (Bynum Transport, Inc., Appellee).
• Court: United States Appellate Court of Illinois

Page 1222

523 N.E.2d 1222

169 Ill.App.3d 1068, 120 Ill.Dec. 311

Bridget COLLETTI, as Administratrix of the Estate of Bernard

Colletti, Deceased; Bridget Colletti, individually; George

Colletti; Stephen B. Colletti; Sarah Esposito; Marie

Colletti; Josephine Colletti; and Franchesca Colletti, a

minor, By and Through her mother and next friend, Bridget

Colletti, Plaintiffs-Appellants, v. Vito CRUDELE, as Administrator of the Estate of Nicholas

Crudele, Deceased; Bynum Transport, Inc.; Clarence Lee;

Cintran, Inc.; Rick Jurski; Avis Rent A Car System, Inc.;

Gas Village; P.V. Holding Corporation; and Robert

Esposito, Defendants (Bynum Transport, Inc., Appellee).

No. 87-1711.

Appellate Court of Illinois,

First District, Second Division.

May 10, 1988.

Joseph R. Curcio, Ltd., David A. Novoselsky and Associates, Chicago (David A. Novoselsky, Kathleen M. Krist, of counsel), for plaintiffs-appellants.

Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago (James T. Ferrini, Lisa Marco Kouba, Robert L. Reifenberg, Helen M. Ryan, of counsel), for defendants.

Justice STAMOS ^* delivered the opinion of the court:

Pursuant to Supreme Court Rule 304(a) (107 Ill.2d R. 304(a)), plaintiffs appeal from an order of the circuit court of Cook County granting the motion of defendant Bynum Transport, Inc. (Bynum), a Florida corporation, to quash service of summons. The order was based on the court's determination that Bynum was not doing business in Illinois for purposes of subjecting it to jurisdiction here.

The underlying wrongful-death action involves an accident in Kentucky, where an automobile in which plaintiffs' decedent was a passenger is alleged to have collided with a truck owned by Bynum. Plaintiffs' decedent is alleged to have been an Illinois resident, and plaintiffs are also presumably all Illinois residents. ¹

Plaintiffs' notice of appeal also purports to appeal from the separate order in which the trial court found, pursuant to Supreme Court Rule 304(a), that there is no just cause for delaying enforcement or appeal of its order quashing service of summons. However, the Rule 304(a) finding is the jurisdictional basis of plaintiffs' appeal; notices of appeal are to be liberally construed (Baird & Warner, Inc. v. Gary-Wheaton Bank (1984), 122 Ill.App.3d 136, 140, 77 Ill.Dec. 536, 539, 460 N.E.2d 840, 843), and errors that are merely matters of form will not prevent the appellate court's jurisdiction from attaching (Dillman & Associates, Inc. v. Capitol Leasing Co. (1982), 110 Ill.App.3d 335, 339, 66 Ill.Dec. 39, 43, 442 N.E.2d 311, 315). Therefore, we treat this part of the notice of appeal as having been filed in error.

Plaintiffs contend that in the present action Bynum is subject to the trial court's jurisdiction on three grounds:

(a) That Bynum consented to jurisdiction over it in the present action by entering its general appearance in three other lawsuits filed against it in Illinois arising from the same accident.

(b) That Bynum waived its jurisdictional objection by failing to object to consolidation of the present lawsuit with the other three in which it had filed general appearances.

(c) That Bynum was doing business in this State so as to subject itself to the jurisdiction and laws of Illinois.

We are not persuaded by plaintiffs' first two contentions but, in the limited circumstances of this case, agree with their third. Accordingly, we reverse and remand.

FACTS

Plaintiffs' complaint and brief allege as follows: On April 3, 1985, plaintiffs' decedent Bernard Colletti was a passenger with two other men, Philip Marrera and Frank Perri, in a car driven by Nicholas Crudele and was killed when the car collided with a truck owned by Bynum and then with another truck. The collision occurred near Richmond, Kentucky. Bernard Colletti and Nicholas Crudele were Illinois residents. The collision occurred as a result of the negligence of Bynum, its employee driver, and the owner and driver of another truck in parking their vehicles alongside the interstate highway.

According to an affidavit of Bynum's president, the Bynum truck involved in the collision was en route from Akron, Ohio, to Highland City, Florida, and had no contact with Illinois while on the trip. The affidavit also stated that Bynum's driver was a resident of Florida.

The three other occupants of the car in which Bernard Colletti rode, or their survivors, filed separate complaints in Cook County against Bynum inter alios. According to the affidavit of Bynum's president and motions filed by defendant Cintran, Inc., the present plaintiffs also became parties to complaints against Bynum filed in Federal and State courts in Kentucky, the former of which Bynum contends is identical to the present action.

On April 29, 1986, through counsel, Bynum and its driver filed an answer in at least one of the other three lawsuits. In addition, they filed their cross-claim against certain other defendants in that suit. Plaintiffs state that Bynum and the driver filed an answer and cross-claim in the remaining two lawsuits as well, and Bynum acknowledges having appeared generally in all three other suits, but not all those appearances and answers seem to be contained in the record presented to this court, nor are they indexed in the appendix to plaintiffs' brief. ²

On June 25, 1986, through other counsel, Bynum and its driver filed their special and limited appearance in the present action and their motion to quash the Florida service of summons on them. On July 7, 1986, in the other Cook County actions in which they had appeared, they were allowed to substitute their new counsel by stipulation with their former counsel.

On July 18, 1986, plaintiffs moved to consolidate the four cases "for purposes of discovery, only." On the same date, the court ordered consolidation "for purposes of discovery only." Notice of this motion was given prior to June 17, 1986 by mail to Bynum at its Florida address, Bynum not yet being represented by counsel in the present action. According to plaintiffs' service list, no notice of this motion was given to any attorney serving as Bynum's counsel in the other three cases.

On July 17, 1986, one day before the motion to consolidate was presented, summons in the present action was served on Bynum's service agent in Chicago. In their reply to plaintiff's response to their motion to quash the Florida service, Bynum and the driver stated that they had filed an additional motion to quash the Chicago service on their agent. No additional motion to quash seems to be included in the record. However, Bynum's reply did argue as to the Chicago service, and on February 13, 1987, the trial court entered its order granting Bynum's motion to quash the additional purported service of summons.

On February 24, 1987, Bynum moved to correct the February 13 order in order to show that the order had quashed the original (Florida) purported service of summons as well as the Chicago service. On March 16, 1987, the court entered its order granting Bynum's motion and making a Rule 304(a) finding. The February 13 order, as corrected by the March 16 order, is the subject of this appeal.

The parties agree that Bynum is a Florida corporation, that Bynum has procured various types of authority from the State of Illinois to operate its trucks within Illinois, and that Bynum has retained a corporation service company in Chicago to serve as its Illinois agent for service of process.

At a deposition, Bynum's president testified as follows: Bynum's business is trucking, and it has authority from 48 States, including Illinois, to operate within their borders. It owns about 30 trucks, and its business is primarily interstate rather than intrastate. It specializes in delivering orange-juice concentrate, the majority of its customers are orange-juice producers in Florida, and it loads its trucks from the premises of customers who hire it. It needs State authority in order to haul even one load in a State, though its Illinois authority entitles it to send trucks there as often as desired. It procured the authority by mail. Bynum has no control over where its customers might direct it to truck a load.

In 1983, of a gross income of $1,287,282, only $11,635.25, or 0.9%, was derived from Illinois; in 1984, $8,456.79, or 0.47%, of $1,762,210 was so earned; and in 1985, $980.58, or 0.04%, of $2,031,792 was so earned. Those figures include all stops for delivery or pickup in Illinois, but not trips made through the State without such stops. ³ Bynum has never refused any business that would take it to or through Illinois, and its trucks have always traveled through Illinois, even if sporadically. When a truck is to make a delivery somewhere, an effort is made to find a load nearby for it to haul on the return trip.

Bynum had assembled everything that it could find for the last few years that recorded trips to or through Illinois. One Illinois company to which Bynum would make deliveries of materials such as phosphate from Florida suppliers was Moorman Manufacturing Company in Quincy. Moorman was not a regular but a sporadic consignee. Another Illinois consignee on at least one 1983 date was Dome Tire Industries in East St. Louis. Records showed 14 stops in Illinois in 1983, 12 in 1984, ⁴ and 5 in 1985. Four trips passed through Illinois in 1983 without stopping; 43 passed through in 1984; and 7 passed through in 1985.

Bynum does not buy advertising for itself. Salespersons solicit business in Florida but never elsewhere. To arrange return trips from other States, brokers are telephoned. At first, the president did not know whether his company used any Illinois brokers, but he later stated after conferring with staff that no Illinois brokers were used. Bynum had no regular customers or business in Illinois. The president could recall no letters to or from Illinois concerning business. Bills may have been mailed to Illinois, but drivers did not collect bil...