Rosier v. Cascade Mountain, Inc.

• Decision Date: 11 September 2006
• Docket Number: No. 1-05-3457.,1-05-3457.
• Citation: 855 N.E.2d 243,305 Ill.Dec. 352
• Parties: Gary and Sharon ROSIER, Individually and as Parents and Next Friends of Steven Rosier, a Disabled Minor, Plaintiffs-Appellees, v. CASCADE MOUNTAIN, INC., and The Walz Family Corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

855 N.E.2d 243

305 Ill.Dec. 352

Gary and Sharon ROSIER, Individually and as Parents and Next Friends of Steven Rosier, a Disabled Minor, Plaintiffs-Appellees, v. CASCADE MOUNTAIN, INC., and The Walz Family Corporation, Defendants-Appellants.

No. 1-05-3457.

Appellate Court of Illinois, First District, First Division.

September 11, 2006.

COPYRIGHT MATERIAL OMITTED

Michael T. Gill, of Pfaff & Gill, Ltd., for Plaintiffs-Appellees.

Robert Marc Chemers, Edward H. Nielsen, Belle L. Katubig, Scott L. Howie of Pretzel & Stouffer Chartered, for Defendants-Appellants.

Presiding Justice McBRIDE delivered the opinion of the court:

Wisconsin defendants Cascade Mountain, Inc., and The Walz Family Corporation bring this appeal under Supreme Court Rule 306(a)(3) from an order of the circuit court of Cook County denying their motion to dismiss plaintiffs' tort claim for lack of personal jurisdiction. 166 Ill.2d R. 306(a)(3). The main issue we address is whether the Wisconsin defendants have been doing business in Illinois and are therefore subject to general personal jurisdiction in Illinois pursuant to section 2-209(b)(4) of the Code of Civil Procedure. 735 ILCS 5/2-209(b)(4) (West 2002).

Illinois residents Gary and Sharon Rosier, individually and as next friends of their minor son Steven, filed this negligence action in Illinois after Steven was injured on March 3, 2003, while attempting to snowboard over the "J.J." tabletop jump at the defendants' Cascade Mountain ski and snowboard facility in Portage, Wisconsin. The plaintiffs sought a minimum of $50,000 in compensatory damages based on allegations that the Wisconsin corporations negligently designed, constructed, maintained, monitored, or supervised the tabletop jump and/or negligently failed to timely respond to Steven's injuries.

The plaintiffs served the defendants in Wisconsin.

In conjunction with their motion to quash service of summons and dismiss the case, the Wisconsin corporations filed the affidavit of their president and director, Phil Walz. The affidavit indicated the corporations did not own any real estate or other assets in Illinois, maintain any personnel, offices or business equipment in Illinois, or file tax returns in Illinois. The affidavit further specified the corporations contracted with an Illinois telecommunications provider for an Illinois telephone number through which callers could listen to a prerecorded Wisconsin snow report, and that the corporations had secured a loan and a line of credit with an Illinois bank to fund chairlift and snow making improvements at Cascade Mountain. The Wisconsin entities argued these contacts were insufficient to subject them to specific in personam jurisdiction in Illinois pursuant to the long-arm statute, which is set out in section 2-209(a) of the Code of Civil Procedure, or to general in personam jurisdiction in Illinois under the doing business doctrine, which is codified in section 2-209(b)(4) of the Code of Civil Procedure. 735 ILCS 5/2-209(a), (b)(4) (West 2002) (Code).

The Rosiers did not file any affidavits rebutting Phil Walz's sworn statement¹ or otherwise respond directly to the Wisconsin defendants' contentions about sections 2-209(a) and (b)(4) of the Code. Instead, the Rosiers argued Cascade Mountain's local telephone number, local marketing, and interactive website evidenced sufficient contacts with Illinois to justify its courts' assertion of general jurisdiction over both Wisconsin defendants under the catchall provision of the Illinois' long arm statute. The catchall provision provides: "A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States." 735 ILCS 5/2-209(c) (West 2002).

When the circuit court decides a jurisdictional question solely on the basis of documentary evidence as it did in this case, the question is addressed de novo on appeal Spartan Motors, Inc. v. Lube Power, Inc., 337 Ill.App.3d 556, 559-60, 272 Ill.Dec. 74, 786 N.E.2d 613, 616 (2003). The plaintiff bears the burden of establishing a prima facie basis upon which jurisdiction over an out-of-state resident may be exercised. Khan v. Van Remmen, Inc., 325 Ill.App.3d 49, 53, 258 Ill.Dec. 628, 756 N.E.2d 902, 907 (2001). The due process clause of the fourteenth amendment to the federal constitution limits the instances in which a state may assert personal jurisdiction over a nonresident corporate defendant. Cook Associates, Inc. v. Lexington United Corp., 87 Ill.2d 190, 197, 57 Ill.Dec. 730, 429 N.E.2d 847, 850 (1981). "The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful `contacts ties or relations.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 2181, 85 L.Ed.2d 528, 540 (1985), quoting International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 160, 90 L.Ed. 95, 104 (1945). Thus, the plaintiff's burden is to demonstrate that the out-of-state defendant has had the necessary minimum contacts with the forum state. Riemer v. KSL Recreation Corp., 348 Ill.App.3d 26, 33-34, 283 Ill.Dec. 163, 807 N.E.2d 1004, 1011 (2004). The minimum contacts standard ensures that "requiring the out-of-state resident to defend in the forum does not `"offend traditional notions of fair play and substantial justice."'" Borden Chemicals & Plastics, L.P. v. Zehnder, 312 Ill.App.3d 35, 41, 244 Ill.Dec. 477, 726 N.E.2d 73, 78 (2000), quoting International Shoe, 326 U.S. at 316, 66 S.Ct. at 158, 90 L.Ed. at 102, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278, 283 (1940). The minimum contacts analysis must be based on some act by which the defendant purposefully availed itself of the privilege of conducting activities within the forum state, in order to assure that a nonresident will not be haled into a forum solely as a result of random, fortuitous, or attenuated contacts with the forum or the unilateral acts of a consumer or some other third person. Burger King, 471 U.S. at 475, 105 S.Ct. at 2183, 85 L.Ed.2d at 542.

The meaning of the minimum contacts standard depends on whether a court is asserting general jurisdiction or specific jurisdiction over the out-of-state defendant. Borden Chemicals, 312 Ill.App.3d at 41, 244 Ill.Dec. 477, 726 N.E.2d at 78.

A court may potentially assert specific jurisdiction over an out-of-state resident if the lawsuit arises out of or is connected to the defendant's purportedly wrongful activities within the forum state. Borden Chemicals, 312 Ill.App.3d at 41, 244 Ill.Dec. 477, 726 N.E.2d at 79. When a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protections of that state, and so requiring it to respond to a suit in that state concerning those specific activities "`can, in most instances, hardly be said to be undue.'" Borden Chemicals, 312 Ill.App.3d at 42, 244 Ill.Dec. 477, 726 N.E.2d at 79, quoting International Shoe, 326 U.S. at 319, 66 S.Ct. at 160, 90 L.Ed. at 104. The Rosiers' lawsuit is not based on any activity within Illinois; therefore, specific jurisdiction principles are not relevant to their appeal.

When a suit neither arises from nor relates to a defendant's activities within the state where suit has been filed, the court is limited to exercising general jurisdiction over the out-of-state defendant. Borden Chemicals, 312 Ill.App.3d at 41, 244 Ill.Dec. 477, 726 N.E.2d at 78. Federal standards permit a court to exercise general jurisdiction over a nonresident only where the nonresident has continuous and systematic general business contacts with the forum. Borden Chemicals, 312 Ill.App.3d at 41, 244 Ill.Dec. 477, 726 N.E.2d at 78-79. In addition, Illinois limits general jurisdiction over nonresidents to instances in which the nonresident was "`present and doing business'" in the forum. Riemer, 348 Ill.App.3d at 34, 283 Ill.Dec. 163, 807 N.E.2d at 1012, quoting Braband v. Beech Aircraft Corp., 72 Ill.2d 548, 554-55, 21 Ill.Dec. 888, 382 N.E.2d 252, 255 (1978). The doing business standard requires a nonresident defendant to carry on business activity in Illinois "`not occasionally or casually, but with a fair measure of permanence and continuity.'" Maunder v. DeHavilland Aircraft of Canada, Ltd., 102 Ill.2d 342, 351, 80 Ill.Dec. 765, 466 N.E.2d 217, 221 (1984), quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915, 917 (1917). The doing business standard is quite high and generally "means conducting business in Illinois of such character and extent that it may be inferred that the defendant has subjected itself to the jurisdiction and laws of this state and is bound to appear when properly served." Riemer, 348 Ill.App.3d at 35, 283 Ill.Dec. 163, 807 N.E.2d at 1012. "In effect, the foreign corporation has taken up residence in Illinois and, therefore, may be sued on causes of action both related and unrelated to its activities in Illinois." Riemer, 348 Ill.App.3d at 35, 283 Ill.Dec. 163, 807 N.E.2d at 1013.

The Rosiers rely primarily on Adams v. Harrah's Maryland Heights Corp., 338 Ill. App.3d 745, 273 Ill.Dec. 536, 789 N.E.2d 436 (2003), to sustain their burden of establishing that general jurisdiction is properly asserted over the nonresident corporations. We do not find Adams' analysis particularly persuasive because it relied primarily on specific jurisdiction case law and principles to determine whether general jurisdiction was properly asserted over a Missouri defendant. See Adams, 338 Ill.App.3d at 747-50, 273 Ill.Dec. 536, 789 N.E.2d at 439-41, citing Flint v. Court Appointed Special Advocates of Du Page County, Inc., 285 Ill.App.3d 152, 169, 221 Ill.Dec. 38, 674 N.E.2d 831, 834 (finding "[defendant] NCASAA's contacts within Illinois are sufficiently related to the cause of action against them and, at least in part, gave rise to it"); ...