Pilipauskas v. Yakel

• Decision Date: 04 February 1994
• Docket Number: No. 1-92-3592,1-92-3592
• Parties: , 196 Ill.Dec. 188 David A. PILIPAUSKAS and Debra Pilipauskas, individually and as the Next Friends of William Pilipauskas, a minor, Sandra Rusek and Matthew Rusek, Plaintiffs-Appellees, v. Denver YAKEL and Carole Yakel, both individually and d/b/a Arrow Lodge Resort, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 733

629 N.E.2d 733

258 Ill.App.3d 47, 196 Ill.Dec. 188

David A. PILIPAUSKAS and Debra Pilipauskas, individually and as the Next Friends of William Pilipauskas, a minor, Sandra Rusek and Matthew Rusek Plaintiffs-Appellees, v. Denver YAKEL and Carole Yakel, both individually and d/b/a Arrow Lodge Resort, Defendants-Appellants.

No. 1-92-3592.

Appellate Court of Illinois First District, Fifth Division.

Feb. 4, 1994.

Julie L. Trester and Michael Resis, Querrey & Harrow, Ltd., Chicago, for defendants-appellants.

Robert M. Winter, Robbins, Salomon & Patt, Ltd., Chicago, for plaintiffs-appellees.

Presiding Justice MURRAY delivered the opinion of the court:

The defendants, Denver Yakel and Carole Yakel, both individually and d/b/a the Arrow Lodge Resort (Arrow Lodge) brought a petition for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(1)(iii). (See Ill.Rev.Stat.1991, ch. 110A, par. 306(a)(1)(iii).) We granted the defendants' leave to appeal. The defendants appeal from an order of the trial court denying their motion to quash the service had upon them for lack of personal jurisdiction.

The plaintiffs, David, Debra and William Pilipauskas, and Sandra and Matthew Rusek filed this suit for injuries allegedly sustained while they were vacationing at the Arrow Lodge in Watersmeet, Upper Peninsula, Michigan. Plaintiffs' second amended complaint alleges that plaintiffs checked into an Arrow Lodge cottage on June 16, 1990, and that during their visit, plaintiffs allegedly suffered injuries as the result of carbon monoxide poisoning. The complaint alleges that at all relevant times the defendants were doing business in Illinois and that defendants transacted business in Illinois within the meaning of the Illinois long arm statute. See Ill.Rev.Stat.1991, ch. 110, par. 2-209(a)(1).

The Yakels were served with a summons and complaint at their home in Watersmeet, Michigan on September 17, 1991, by the Sheriff of Gogebic County, Upper Peninsula, Michigan. The Yakels entered a special and limited appearance and moved to quash service of process and to dismiss arguing that they had done nothing to subject them to jurisdiction in Illinois. The Yakels attached their affidavits in support of the motion. The Yakels' affidavits state that the Yakels reside in Watersmeet, Michigan, where they jointly operate the Arrow Lodge as a sole proprietorship. The Yakels further stated that they only have a Michigan telephone number and have never directly advertised nor solicited business in Illinois, nor have they ever come to Illinois on business.

Subsequent to filing their motion to quash, the Yakels appeared for discovery depositions pursuant to Illinois Supreme Court Rule 201(l ). (See Ill.Rev.Stat.1991, ch. 110A, par. 201(l ).) Carole Yakel testified to the following. Carole and her husband Denver had owned and operated the Arrow Lodge for approximately 17 years where they provide lodging to vacationers in the Upper Peninsula as well as renting boating equipment to their guests. The Arrow Lodge has seven housing units, three of which are available to guests year round, while the remaining units are available approximately five months of the year. Carole is responsible for the making or taking of reservations as well as the record-keeping.

In 1989 visitors to Arrow Lodge came from a number of different states, including Nebraska, Indiana, Wisconsin, North Carolina, and Illinois. The Yakels received 132 deposits for rentals during 1989, 61 (or 46%) of which were received from Illinois residents. In 1990, the Yakels received 173 deposits, of which 70 (or 40%) were received from Illinois residents.

In 1989 a total of 97 phone calls were made from the Yakel's address to Illinois. During the first 10 months of 1990, 110 phone calls were made to Illinois. Carole testified that a large portion of those phone calls were probably made by her son or daughter to friends in Illinois.

Usually, a guest will contact the Yakels to request a brochure and, after receiving one, will call or write back to reserve a cabin if they are so inclined. Normally, the only time Carole calls a potential guest is if she happens to have missed a call and there is a message on the answering machine. The majority of the time that Carole responds to a potential guest, she does so by letter rather than by phone. However, a lot of reservations are made over the phone. When Carole receives a deposit she always sends a written confirmation.

Arrow Lodge belongs to a number of associations, including: Gogebic Area Convention and Visitor's Bureau (GACVB), Upper Peninsula Travel and Recreation Association (UPTRA), Eagle River Chamber of Commerce, Land O'Lakes Chamber of Commerce, Watersmeet Chamber of Commerce and Vilas County Advertising. Some of the associations print brochures containing information regarding local businesses, including Arrow Lodge, for distribution to tourists. The brochures are distributed from tourist information centers throughout Michigan. GACVB and UPTRA have 800 numbers; they receive phone calls from interested parties as well as receiving written inquiries. Some of the associations occasionally distribute the brochures at sports shows.

Arrow Lodge receives much of its business by word of mouth from former guests. In the last several years Arrow Lodge has advertised in a couple of Wisconsin snowmobile publications. The defendants do not take out any other advertisements, and they have never attended any trade shows in order to advertise Arrow Lodge.

In addition, the Yakels publish their own brochure concerning Arrow Lodge. Some of the associations may distribute the Lodge brochures at trade shows. The Yakels send the Lodge brochures to individuals who have expressed an interest in vacationing on the Upper Peninsula and who might be interested in staying at the Lodge. The Yakels obtain the names of some of these potential customers from the associations to which they belong. Several of the associations compile lists of individuals who have inquired about lodging and recreation on the Upper Peninsula and then provide these lists to their members. The remainder of the Yakels' marketing activities consists of sending out a mailing during the holiday season to individuals who have stayed at the Lodge or written to the Yakels about accommodations within the previous two years. The Yakels typically enclose a Lodge brochure with their holiday letters. The back page of the brochure includes a map which shows where the Lodge is located.

Debra Pilipauskas first contacted Carole by phone. Carole sent a letter to Debra with a 1990 brochure and a rate sheet, a Watersmeet brochure, a Thousand Island Lake map, and a Cisco Chain map. Carole never had any direct communications from the Ruseks and she did not know how the Pilipauskas' learned of Arrow Lodge.

At his deposition, Denver Yakel testified that he did not disagree with anything his wife had said at her deposition. Denver did not know of any particular time that the Gogebic Association, or any other association that Arrow Lodge belonged to, took Arrow Lodge brochures to any trade shows in Illinois. Denver also testified that they only took out the ads in the snowmobile magazines once a year.

Plaintiffs filed a response opposing the motion to quash. Plaintiffs cited portions of the Yakels' deposition testimony in support of their position as well as the affidavit of Debra Pilipauskas.

Debra's affidavit stated she contacted the Michigan Travel Bureau via its 1-800 number in December of 1989 in reference to fishing lodges and resorts. Debra was referred to UPTRA and GACVB and obtained brochures from the same that contained information about Arrow Lodge. Thereafter, Debra contacted the Lodge and was sent a brochure, rate sheet and letter regarding the availability of units. In response to the information provided to her by telephone and correspondence from Arrow Lodge, Debra sent a deposit check. Debra stated that she and her family learned of, selected and traveled to the Arrow Lodge as a result of the information provided by UPTRA, GACVB, and Arrow Lodge.

The Yakels filed a reply in support of their motion to quash. After hearing, the trial court denied the defendants' motion.

When ruling the trial court stated:

"I think what the ruling should be here is the question of whether or not you've shown by a preponderance jurisdiction. I think under the set of facts, we have a seventeen year history of Illinois residents going to this lodge, forty to fifty percent is Illinois business. Some hundred and some phone calls a year, some personal, some business, as a matter of record, being made into Illinois. Taking ads in certain trade papers that are distributed in Illinois, and some of the facts that are involved here. Importantly, in this case, the reservation was made directly by an Illinois resident to this lodge.

* * * * * *

I don't think it's unreasonable for them to anticipate being brought into an Illinois court to defend themselves for a cause of action that relates directly to the stay."

The sole issue defendants present for review is whether the trial court erred in denying their motion to quash the service had upon them for lack of personal jurisdiction. The defendants maintain that they should not be subject to jurisdiction in Illinois. Plaintiffs argue on appeal that jurisdiction over the defendants is proper under any one of three theories: (1) the defendants transacted business in Illinois (735 ILCS 5/2--209(a)(1) (West 1992)); (2) the defendants were doing business in Illinois (735 ILCS 5/2--209(b)(4) (West 1992)); and (3) the exercise of jurisdiction is constitutionally permissible (735 ILCS 5/2--209(c) (West 1992)). Finally, plaintiffs argue that the defendants submitted to the jurisdiction of the court when they filed a response to the plaintiffs' motion to compel.

For the following reasons we find that the defendants did not submit to the...