La Salle Nat. Bank of Chicago v. Akande, 2-91-1167

• Decision Date: 29 September 1992
• Docket Number: No. 2-91-1167,2-91-1167
• Citation: 235 Ill.App.3d 53,175 Ill.Dec. 780,600 N.E.2d 1238
• Parties: , 175 Ill.Dec. 780 LA SALLE NATIONAL BANK OF CHICAGO, as Trustee et al., Plaintiffs-Appellees, v. Harry Ayoade AKANDE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1238

600 N.E.2d 1238

235 Ill.App.3d 53, 175 Ill.Dec. 780

LA SALLE NATIONAL BANK OF CHICAGO, as Trustee et al Plaintiffs-Appellees, v. Harry Ayoade AKANDE, Defendant-Appellant.

No. 2-91-1167.

Appellate Court of Illinois Second District.

Sept. 29, 1992.

Mel Gaines (argued), Mel Gaines Ltd., Chicago, for Harry Ayoade Akande.

George F. Fitzpatrick, Gary E. Dyal (argued), Wildman, Harrold, Allen & Dixon, Chicago, for LaSalle Nat. Bank Chicago, UIDC Management Co.

Justice BOWMAN delivered the opinion of the court:

Defendant, Harry Ayoade Akande, appeals from the judgment of the circuit court of Du Page County which denied his motion to quash service of summons and to vacate a default judgment entered against him. Defendant presents six issues for our review, which we consolidate into the following four issues: (1) whether defendant was properly subject to in personam jurisdiction in Illinois; (2) whether the trial court erred in allowing plaintiffs to proceed with discovery directed to the issue of jurisdiction; (3) whether the court erred in concluding that defendant's failure to properly object to plaintiffs' request to admit constituted an admission by defendant of the factual matters addressed in the request; and (4) whether the court erred in concluding that substitute service of process upon defendant in London, England, was proper.

This case arose out of a commercial lease guaranty entered into between defendant and plaintiffs, La Salle National Bank of Chicago, as trustee under trust No. 49475, and UIDC Management Company (UIDC). Plaintiff La Salle National Bank is the owner of legal title to retail store No. 238 in the Oak Brook shopping center, and plaintiff UIDC is the managing agent of the store. On July 29, 1981, plaintiff La Salle National Bank entered into a written lease for the rental of the store with Josephine Queen, Inc., an Illinois corporation. Under the lease guaranty, defendant was obligated to pay rent and other monies due under the lease in the event of a default by the tenant. The tenant allegedly defaulted on its lease payments, and on February 5, 1988, plaintiffs filed the instant lawsuit against defendant, seeking to recover the unpaid rent and other charges owing under the lease, plus costs and attorney fees.

On May 17, 1988, plaintiffs served summons and the complaint upon defendant's sister-in-law, Yeside Sodipe, who resided at property owned by defendant at 17 W 361 Hillside Lane, Hinsdale, Illinois. On June 9, 1988, defendant filed a special and limited appearance and a motion to quash service of summons on the ground that he did not reside at the Hinsdale address. Based on the affidavits of the process server, James E. Liston, and Ms. Sodipe, and the briefs of the parties, the trial court concluded that the defendant lived in either London, England, or Nigeria. The court therefore granted defendant's motion to quash.

On December 19, 1989, the plaintiffs' process server, Arthur R. Levin, served the summons and complaint upon defendant's brother, Joseph Akande, at the premises known as Flat 3, Two Hyde Park Gardens, London, England, where, according to Levin's affidavit of service, defendant resided. The documents were also mailed to defendant at the London address. On February 15, 1990, the case was called for status. On that date, defendant having failed to appear, the court found defendant to be in default. The case was continued for a prove up of damages, and on May 3, 1990, the court entered judgment against defendant in the amount of $292,657.86 plus costs.

On February 26, 1991, defendant again filed a special and limited appearance and a three-count motion to quash service of summons and vacate the default judgment. Count I contested the court's personal jurisdiction over defendant. Counts II and III questioned the legal sufficiency of the affidavit of service and challenged the propriety of the service of summons at the London address.

On March 14, 1991, the trial court issued an order denying count I of defendant's motion to quash. On April 16, 1991, plaintiffs served interrogatories, requests to admit and a request for production of documents on defendant. On May 13, 1991, defendant's attorney wrote to plaintiffs' counsel, advising that defendant did not intend to respond to plaintiffs' discovery requests prior to a determination that the court had jurisdiction over defendant.

On June 21, 1991, the court heard argument on the remaining counts in defendant's motion. On June 27, 1991, the court found that the substituted service of process upon defendant in London was proper. The court concluded that Supreme Court Rule 201(l ) (134 Ill.2d R. 201 (l )) allowed limited discovery relating to the question of jurisdiction and that a Rule 216 (134 Ill.2d R. 216) request to admit was an appropriate discovery tool for that purpose. The court also found that defendant had not properly objected to plaintiffs' request to admit and that the Rule 216 requests would be deemed admitted. The court therefore denied defendant's motion to quash service of summons and vacate the default judgment. Defendant's motion for rehearing and reconsideration was also denied, and defendant filed the instant appeal.

We first address defendant's claim that the facts of this case are insufficient to subject him to the jurisdiction of the Illinois courts. In this regard, section 2-209(a)(1) of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1989, ch. 110, par. 2-209(a)(1)), upon which plaintiffs maintain jurisdiction was founded, provides in pertinent part as follows:

"Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:

(1) The transaction of any business within this State." Ill.Rev.Stat.1989, ch. 110, par. 2-209(a)(1).

An invocation of long-arm jurisdiction must satisfy two criteria: (1) the statutory requirements of section 2-209, and if those requirements are met, (2) the constitutional requirements of due process. (Financial Management Services, Inc. v. Sibilsky & Sibilsky, Inc. (1985), 130 Ill.App.3d 826, 832, 86 Ill.Dec. 100, 474 N.E.2d 1297.) Under section 2-209(a)(1) of the Code, even a single act of a defendant may be sufficient to find that business was transacted within this State, so long as the cause of action arises from that act. (Financial Management Services, 130 Ill.App.3d at 833, 86 Ill.Dec. 100, 474 N.E.2d 1297.) People v. Parsons Co. (1984), 122 Ill.App.3d 590, 597, 78 Ill.Dec. 74, 461 N.E.2d 658.) We believe the record establishes a transaction of business by defendant in Illinois which is sufficiently connected with the cause of action to render him amenable to suit in Illinois under section 2-209(a)(1) of the Code.

Here, plaintiffs' complaint alleged that defendant entered into and signed a lease guaranty with plaintiff La Salle National Bank to insure the payment of rent on commercial property located in Oak Brook, Illinois. The complaint incorporated by reference the lease guaranty and the lease, and the guaranty contained an Illinois notary seal attesting to the fact that defendant executed the document in Illinois. Since under the guaranty the defendant was required, in the event of default by the tenant, an Illinois corporation, to remit all monies due and owing under the lease to the Illinois plaintiffs, it is also reasonable to conclude that the lease and the guaranty were to be performed in Illinois. Plaintiffs' complaint further alleged that, when the tenant defaulted on the lease, defendant failed to pay the monies that then became due and owing. Consequently, we find that the facts of this case sufficiently establish that defendant transacted business within the State of Illinois and that this transaction gave rise to plaintiffs' claim against him.

Kotlisky v. Kotlisky (1990), 195 Ill.App.3d 725, 142 Ill.Dec. 465, 552 N.E.2d 1206, cited by defendant for the proposition that the "mere execution of a contract within Illinois is not by itself a sufficient transaction of business to fit within the long-arm statute," is inapposite. In that case, the plaintiffs were seeking to recover money owed to a decedent's estate which was being probated in California. In reaching its decision, the court concluded that recovery of a debt owed to an estate being probated in California did not "appear to invoke any special ties to Illinois." (Kotlisky, 195 Ill.App.3d at 737, 142 Ill.Dec. 465, 552 N.E.2d 1206.) Clearly, unlike the situation in Kotlisky, the present case does not involve any other State or jurisdiction which may have an interest in or ties to the parties' transaction.

Having determined that jurisdiction over defendant existed under the long-arm statute, we must next consider whether the assertion of such jurisdiction comported with due process. The due process clause " 'requires only that in order to subject a defendant to a judgment in personam, if he is not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." ' " Financial Management Services, 130 Ill.App.3d at 833-34, 86 Ill.Dec. 100, 474 N.E.2d 1297, quoting International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102.

We find sufficient minimum contacts here. While present in Illinois, defendant executed a lease guaranty to ensure the payment to Illinois plaintiffs of rent on property located in Illinois. Thus, defendant took advantage of a business opportunity by entering into a guaranty, the performance of which was related entirely to the lease of real estate and the operation of a business located in this...