Estate of Isringhausen v. Prime Contractors

• Decision Date: 29 January 2008
• Docket Number: No. 4-07-0345.,4-07-0345.
• Citation: 378 Ill.App.3d 1059,883 N.E.2d 594
• Parties: The ESTATE OF Lee R. ISRINGHAUSEN, by Susan ISRINGHAUSEN, Executrix, Plaintiff-Appellant, v. PRIME CONTRACTORS AND ASSOCIATES, INC., d/b/a APM Custom Homes, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

883 N.E.2d 594

378 Ill.App.3d 1059

The ESTATE OF Lee R. ISRINGHAUSEN, by Susan ISRINGHAUSEN, Executrix, Plaintiff-Appellant, v. PRIME CONTRACTORS AND ASSOCIATES, INC., d/b/a APM Custom Homes, Defendant-Appellee.

No. 4-07-0345.

Appellate Court of Illinois, Fourth District.

January 29, 2008.

Justice COOK delivered the opinion of the court:

Prior to Lee R. Isringhausen's death, he had entered into a contract with APM Custom Homes (APM), a Florida corporation, to build a custom home in Marco Island, Florida. Lee provided APM with a $100,000 deposit. Although APM returned some of the deposit following Lee's death, APM retained $42,500 for its construction-management fee. Susan Isringhausen, as the executrix of Lee's estate, filed a breach-of-contract claim against APM for the sum of $42,500. The trial court dismissed Susan's complaint for lack of personal jurisdiction. Susan appeals. We affirm.

I. BACKGROUND

A. Correspondence Between the Parties

Lee Isringhausen was a resident of Sangamon County, Illinois. APM is a Florida corporation. According to the affidavit of APM's president, Todd Schneider, Lee Isringhausen owned several properties in Marco Island and was interested in further development. Dan Wilmath had been Isringhausen's long-time realtor in Marco Island and helped Isringhausen purchase the land at 1460 Salvadore Court, where the residence at issue in this case was to be built. Wilmath also served as Isringhausen's property manager and groundskeeper. After three years as Isringhausen's realtor, Wilmath gained employment with APM. During the time in question, Wilmath was working both as Isringhausen's realtor and also for APM. Wilmath put Isringhausen in contact with APM. Isringhausen then met with Schneider for the first time in Marco Island, Florida, at one of APM's model homes to discuss the possibility of constructing a residence.

According to the affidavit of Lee's attorney, Almon Manson, on November 21, 2005, and December 1, 2005, Wilmath, acting on behalf of APM, forwarded from Florida to Isringhausen's Springfield office several documents, information, and blueprints regarding the proposed construction at 1460 Salvadore Court. On December 12, 2005, APM president Schneider contacted Isringhausen by telephone at Isringhausen's Springfield, Illinois, office. Schneider told Isringhausen that he would deliver via facsimile the contract for the construction of the custom home. Isringhausen conferred with Manson on the terms of the contract. On December 19, 2005, Isringhausen signed the contract and returned it to Schneider. Additionally, as evidenced by a document prepared by APM entitled "Isringhausen Accounting," which APM attached to its motion to dismiss, APM sent correspondence to Isringhausen in Springfield on four other occasions: November 29, 2005, December 6, 2005, January 10, 2006, and January 17, 2006.

The facts regarding the parties' correspondence and contract formation are slightly different according to Schneider's affidavit. Schneider attests that all discussions relative to the construction of the custom home took place in Marco Island, Florida. Schneider states he never spoke with Isringhausen over the phone. APM delivered the contract to Isringhausen in Marco Island, Florida. Schneider had no knowledge of the documents, information, and blueprints allegedly forwarded by Wilmath. Schneider attested that APM had nothing to do with the blueprints. Rather, the blueprints were from Isringhausen's Florida architect, WHJ Architects and Associates (WHJ). Wilmath sent Isringhausen the blueprints in the capacity of Isringhausen's realtor and independent contractor. Wilmath sought out and orchestrated Isringhausen's relationships with both WHJ and APM.

B. Terms of the Contract and the Underlying Lawsuit

The terms of the contract state that "the [c]ontract shall be governed by the law of the place where the project is located." In addition to the choice-of-law provision, the contract also included a payment schedule as an attachment. The ultimate cost of the home was to be $1,942,588. Upon execution of the contract and prior to the start of work, Isringhausen was to pay $97,129.40 (referred to by the parties as the $100,000 deposit). Upon issuance of a building permit, Isringhausen was to pay another $97,129.40. Upon completion of the foundation work, Isringhausen was to pay another $291,388.20, and so on. There were nine payments scheduled in all. However, Isringhausen passed away after making the initial $100,000 deposit and the project came to a halt.

On April 7, 2006, APM sent attorney Manson a refund check in the amount of $23,855.61. APM contends $23,855.61 is the amount due from Isringhausen's initial deposit of $100,000. According to the "Isringhausen Accounting" document, APM kept $42,500 as a construction-management fee, $19,135 for payments to WHJ architects, $2,500 for payments made to a lumber company, and several thousand dollars on a series of smaller expenses, including the shipment of the aforementioned blueprints. It is unclear whether this was an expense incurred by APM, Wilmath, or WHJ. Susan, as executrix of Lee's estate, disputes only the $42,500 construction-management fee. As stated in attachments to the contract, the total projected cost over the scope of the project for construction management was going to be $170,000. APM estimated that, for the three months it apparently proceeded with the project, the construction-management fee should be $42,500.

On July 6, 2006, Susan filed a complaint against APM in Sangamon County circuit court, apparently alleging breach of contract. Susan argued that a valid contract existed between APM and Isringhausen and that Isringhausen performed all of his duties under the contract. Susan further argued that construction ceased and the contract was terminated in January 2006, upon Lee's passing. Susan contends that nothing in the nine-step payment schedule, which was based on services completed, indicated that APM was due $42,500 for construction-management services. Susan requests damages in the amount of $42,500.

On July 31, 2006, APM filed a motion to dismiss for lack of personal jurisdiction. APM argued that Illinois courts lacked both general and specific jurisdiction over it. On February 27, 2007, Susan filed a response to APM's motion to dismiss. Susan argued that Illinois had specific jurisdiction over APM under sections 209(a)(7) and 2-209(c) of the Code of Civil Procedure (735 ILCS 5/2-209(a)(7), 2-209(c) (West 2004)), that is, the Illinois long-arm statute (735 ILCS 5/2-209 (West 2004)).

On March 22, 2007, the trial court entered a written memorandum of opinion, granting APM's motion to dismiss for lack of personal jurisdiction. The trial court stated that the issue was whether "[APM] has sufficient minimum contacts with [Illinois] to require [APM] to defend itself in Sangamon County, Illinois." The trial court quoted an excerpt from Rosier v. Cascade Mountain, Inc., 367 Ill.App.3d 559, 305 Ill.Dec. 352, 855 N.E.2d 243 (2006), which discussed the standard for establishing general jurisdiction over the person. Immediately following the excerpt, the court then stated that performance on the subject of the contract for the construction of a home in Florida was not "substantially connected" to the State of Illinois, a phrase typically used in reference to specific jurisdiction under the long-arm statute. 735 ILCS 5/2-209(a)(7) (West 2004). This appeal followed. APM did not file a brief on appeal.

II. ANALYSIS

Susan appeals the trial court's dismissal of her complaint for lack of personal jurisdiction. When the trial court decides the issue of personal jurisdiction solely on the basis of documentary evidence, as it did here, we review the trial court's dismissal for lack of personal jurisdiction de novo. Rosier, 367 Ill.App.3d at 561, 305 Ill.Dec. 352, 855 N.E.2d at 247. The plaintiff has the burden of establishing a prima facie case for jurisdiction over the nonresident defendant. Rosier, 367 Ill. App.3d at 561, 305 Ill.Dec. 352, 855 N.E.2d at 247. Conflicts between the parties' affidavits will be resolved in favor of the plaintiff for the purposes of establishing a prima facie case for personal jurisdiction over the defendant. Kalata v. Healy, 312 Ill.App.3d 761, 765, 245 Ill.Dec. 566, 728 N.E.2d 648, 652 (2000).

Personal jurisdiction may be specific or general. If the lawsuit "arises out of or is connected to the defendant's purportedly wrongful activities within the forum state," Illinois courts may potentially assert specific jurisdiction over a nonresident defendant. Rosier, 367 Ill.App.3d at 562, 305 Ill.Dec. 352, 855 N.E.2d at 247. "`"The focus is on the defendant's activities within the forum state, and not on those of the plaintiff."'" Bolger v. Nautica International, Inc., 369 Ill.App.3d 947, 952, 308 Ill.Dec. 335, 861 N.E.2d 666, 672 (2007), quoting Campbell v. Mills, 262 Ill. App.3d 624, 627, 199 Ill.Dec. 441, 634 N.E.2d 41, 44 (1994), quoting Sackett Enterprises, Inc. v. Staren, 211 Ill.App.3d 997, 1004, 156 Ill.Dec. 226, 570 N.E.2d 702, 706 (1991).

If the underlying lawsuit or claim does not "arise out of or relate to a defendant's activities" in Illinois, the trial court is limited to determining whether it has general jurisdiction over the nonresident defendant. Rosier, 367 Ill.App.3d at 562, 305 Ill.Dec. 352, 855 N.E.2d at 247-48. Section 2-209(b), which addresses general jurisdiction under the long-arm statute, states that an Illinois court may exercise jurisdiction over any action (as opposed to an action "arising out of" the nonresident defendant's activities in Illinois) if the nonresident defendant is a (1) natural person present in Illinois when served; (2) natural person domiciled or resident in Illinois when the cause of action arose, the action commenced, or process was served; (3) corporation organized under the laws of Illinois; or (4) a natural person or a corporation doing business...