Hendry v. Ornda Health Corp., Inc.

• Decision Date: 14 September 2000
• Docket Number: No. 2-99-1448.,2-99-1448.
• Citation: 742 N.E.2d 746,318 Ill.App.3d 851,252 Ill.Dec. 208
• Parties: Patsy HENDRY, Plaintiff-Appellee, v. ORNDA HEALTH CORPORATION, INC., d/b/a LiteLife and LiteLife Program, and n/k/a LighterLife; Tenet Health Care Corporation, f/k/a OrNda Health Corporation, Inc., and d/b/a Tenet Health SystemHealth Corporation, Inc.; and Davenport Medical Center, n/k/a Tenet Health Systems DMC, Inc., Defendants-Appellants (John Stoner, Defendant).
• Court: United States Appellate Court of Illinois

742 N.E.2d 746

318 Ill.App.3d 851

252 Ill.Dec. 208

Patsy HENDRY, Plaintiff-Appellee, v. ORNDA HEALTH CORPORATION, INC., d/b/a LiteLife and LiteLife Program, and n/k/a LighterLife; Tenet Health Care Corporation, f/k/a OrNda Health Corporation, Inc., and d/b/a Tenet Health SystemHealth Corporation, Inc.; and Davenport Medical Center, n/k/a Tenet Health Systems DMC, Inc., Defendants-Appellants (John Stoner, Defendant).

No. 2-99-1448.

Appellate Court of Illinois, Second District.

September 14, 2000.

Rehearing Denied March 1, 2001.

Samuel S. McHard, Law Offices of Sam McHard, P.C., Rock Island, Clifford Lee Gunter, Thomas P. Scherschel, O'Hagan, Smith & Amundsen, LLC, Geneva, for Ornda Health Corp., Inc., Dr. John Stoner M.D., Tenet Health Care Corp., The Davenport Medical Center.

Lawrence J. Griffin, Eugene L. Griffin & Associates, Ltd., Chicago, for Patsy Hendry.

Justice McLAREN delivered the opinion of the court:

Defendants Ornda Health Corporation, Inc. (Ornda), Tenet Health Care Corporation (Tenet), and Davenport Medical Center (Davenport) (collectively hereafter referred to as corporate defendants) bring this interlocutory appeal from the trial court's order finding personal jurisdiction over them. We affirm and remand the cause.

Plaintiff Patsy Hendry brought a 23-count complaint against the corporate defendants and defendant Dr. John Stoner alleging, inter alia, negligence, breach of warranty, fraud, and medical malpractice. The corporate defendants filed a special and limited appearance, objecting to the jurisdiction of the trial court because the corporate defendants were foreign corporations that did not do business in Illinois. Following a hearing, the trial court denied the special and limited appearance. The corporate defendants were given leave to file a supplemental pleading regarding the special and limited appearance. This, too, was denied. The trial court then allowed the corporate defendants' motion for interlocutory appeal. This court denied the initial application for leave to appeal; however, a second such application, brought pursuant to Supreme Court Rule 306(a) (166 Ill.2d R. 306(a)) was granted, and this appeal followed. Defendant Stoner is not part of this appeal.

The corporate defendants contend that the trial court erred in denying the supplemental special and limited appearance and in finding in personam jurisdiction over them. Where, as here, the trial court did not hold an evidentiary hearing but determined jurisdiction solely on the basis of documentary evidence, the standard of review is de novo. See Gaidar v. Tippecanoe Distribution Service, Inc., 299 Ill.App.3d 1034, 1040, 234 Ill.Dec. 150, 702 N.E.2d 316 (1998).

Hendry alleged in her complaint that she participated in a surgical weight-loss program run by Ornda and since purchased by defendant Tenet. Hendry learned of the program through television advertisements in Illinois and via a videotape that she ordered from the program. Litelife program dispatched a limousine to drive Hendry from her home in Aurora, Illinois, to the Davenport Medical Center in Davenport, Iowa, for a consultation. Eventually, Dr. Stoner performed a silastic ring vertical gastroplasty (stomach stapling) on Hendry at Davenport. Approximately eight months later, Hendry returned to Davenport, and Stoner performed a single panniculectomy (tummy tuck) to remove excess abdominal skin that had resulted from Hendry's weight loss of over 100 pounds. Following that surgery, Hendry suffered from constant and substantial pain, drainage from open wounds, and frequent bleeding, even after a follow up with Stoner in Davenport. The injuries, pain, suffering, and subsequent medical treatments required are the basis for the damages sought in this case.

Both Hendry and the corporate defendants agree that the defendants were foreign corporations, not licensed in Illinois. An Illinois trial court may exercise jurisdiction over such corporations based upon (a) the fact that the corporation has been found to be "doing business" in Illinois or (b) compliance with the requirements of the long-arm statute, section 2-209(a)(1) of the Code of Civil Procedure (Code) (735 ILCS 5/2-209(a)(1) (1994)). General Electric Railcar Services Corp. v. Wilmington Trust Co., 208 Ill.App.3d 459, 463-64, 153 Ill.Dec. 442, 567 N.E.2d 400 (1990).

Jurisdiction based upon a party's "doing business" in Illinois was recognized by the courts before it was codified as section 2-209(b)(4) of the Code (735 ILCS 5/2-209(b)(4) (West 1994)). See Gaidar, 299 Ill.App.3d at 1041,234 Ill.Dec. 150,702 N.E.2d 316. A nonresident corporation is considered to have consented to jurisdiction if it is doing business in Illinois. Rokeby-Johnson v. Derek Bryant Insurance Brokers, Ltd., 230 Ill.App.3d 308, 318, 171 Ill.Dec. 670, 594 N.E.2d 1190 (1992). There is no comprehensive test for determining what activity amounts to "doing business"; however, if a corporation is conducting business in Illinois of such character and extent as to warrant the inference that the corporation has subjected itself to the jurisdiction and laws of Illinois, the corporation may be found to be "doing business" in Illinois. See Cook Associates, Inc. v. Lexington United Corp., 87 Ill.2d 190, 201, 57 Ill.Dec. 730, 429 N.E.2d 847 (1981). "Doing business" requires activities greater than mere solicitation by employees who have authority only to solicit business (Cook, 87 Ill.2d at 201,57 Ill.Dec. 730,429 N.E.2d 847), and business activity in the state must be carried on with a fair measure of permanence and continuity, not occasionally or casually. Rokeby-Johnson, 230 Ill.App.3d at 318,171 Ill.Dec. 670,594 N.E.2d 1190. The decision as to whether a corporation's activities in Illinois are sufficiently permanent and continuous must be made on a case-by-case basis on the unique situation presented. Hulsey v. Scheidt, 258 Ill. App.3d 567, 572, 196 Ill.Dec. 740, 630 N.E.2d 905 (1994).

Hendry relies upon 11 "verified facts" to support a finding that the corporate defendants were "doing business" in Illinois. Hendry alleged that the corporate defendants (1) employed Illinois residents; (2) treated Illinois patients; (3) granted Illinois physicians admitting privileges; (4) were under contract with many Illinois-based organizations, such as Deere and Company, Heritage National Healthplan, Inc., Trinity Physician Hospital Organization, Ltd., and Trinity Hospital Organization, Ltd.; (5) advertised their programs in Illinois by way of radio, television, newspaper (i.e., the Chicago Tribune), and the Yellow Pages, which were all targeted to Illinois residents; (6) had employees that served as faculty and lectors for seminars and conferences that took place in Illinois; (7) had presented as many as seven seminars about the LiteLife program in Illinois; (8) arranged and paid for 30 separate limousine trips (at a total cost of $8,821) from Illinois to Iowa for their Illinois LiteLife patients; (9) sent promotional videos to as many as 35 Illinois residents who were ultimately treated; (10) circulated to Illinois patients eight different newsletters that they published; and (11) obtained authorizations from two LiteLife patients who were Illinois residents to provide testimonials for use in promotional materials. The corporate defendants counter with the facts that Hendry was not treated in Illinois, the corporate defendants do not treat any of their patients...