Talbert & Mallon, P.C. v. Stokes Towing Co., Inc.

• Decision Date: 21 May 1991
• Docket Number: No. 5-90-0187,5-90-0187
• Citation: 157 Ill.Dec. 750,213 Ill.App.3d 992,572 N.E.2d 1214
• Parties: , 157 Ill.Dec. 750 TALBERT & MALLON, P.C., Plaintiff-Appellee, v. STOKES TOWING COMPANY, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1214

572 N.E.2d 1214

213 Ill.App.3d 992, 157 Ill.Dec. 750

TALBERT & MALLON, P.C., Plaintiff-Appellee, v. STOKES TOWING COMPANY, INC., Defendant-Appellant.

No. 5-90-0187.

Appellate Court of Illinois Fifth District.

May 21, 1991.

John S. Sandberg, Stephen M. Strum, Sandberg, Phoenix & von Gontard, P.C., St. Louis, Mo., for defendant-appellant.

Roy C. Dripps, Talbert & Mallon, P.C., Alton, for plaintiff-appellee.

Justice WELCH delivered the opinion of the court:

Defendant, Stokes Towing Company, Inc., appeals from an order of the circuit court of Madison County, entered March 9, 1990, overruling defendant's objection to the court's jurisdiction over the person of the defendant under Illinois' long-arm statute. (Ill.Rev.Stat.1989, ch. 110, par. 2-209.) We reverse because we find, on the record before us, that plaintiff has failed to establish that defendant has sufficient contacts with the State of Illinois to establish personal jurisdiction over defendant under the long-arm statute.

On December 21, 1989, plaintiff, Talbert & Mallon, P.C., filed a complaint against defendant which alleges substantially as follows:

(1) that plaintiff is a professional law corporation doing business in the State of Illinois;

(2) that plaintiff and Cecil W. Stevens were parties to a valid contract for the performance of legal services concerning an injury Stevens had received and for which defendant was allegedly liable;

(3) that said contract for legal services was entered into between plaintiff and Stevens in Alton, Illinois;

(4) that defendant knowingly and intentionally interfered with said contract by inducing Stevens to settle his claim against defendant, thereby breaching said contract; and

(5) that as a direct and proximate result, plaintiff suffered damages in the form of loss of its attorney fees and expenses.

On February 1, 1990, defendant filed a special and limited appearance objecting to the jurisdiction of Illinois courts over the person of defendant. The appearance alleges that the settlement of Stevens' claim against defendant occurred in Mississippi that defendant is incorporated in Mississippi and has its principal place of business in Mississippi, that defendant is not licensed to do business in Illinois and does not have any offices or agents in Illinois for the transaction of its usual and customary business, that plaintiff's cause of action does not arise from defendant's transaction of business in Illinois, and that the allegedly tortious act upon which plaintiff attempts to assert jurisdiction would have been committed in Mississippi, where the settlement negotiations and settlement took place. Therefore, defendant alleges, Illinois courts have no personal jurisdiction over defendant under the Illinois long-arm statute. Defendant's special appearance is supported by a memorandum of law and affidavit of David Stokes, president of defendant corporation.

The Illinois long-arm statute provides the only basis upon which to obtain personal jurisdiction over a corporation, such as defendant, which is neither incorporated nor licensed to transact business in Illinois (Capital Associates Development Corp. v. James E. Roberts-Ohbayashi Corp. (1985), 138 Ill.App.3d 1031, 1036, 93 Ill.Dec. 563, 567, 487 N.E.2d 7, 11), and which does not transact business in Illinois on a continuous and substantial basis. (Huffman v. Inland Oil & Transport Co. (1981), 98 Ill.App.3d 1010, 1016, 54 Ill.Dec. 306, 311, 424 N.E.2d 1209, 1214.) That statute provides that a non-resident corporation submits to the jurisdiction of Illinois courts as to any cause of action arising from, inter alia: (1) the transaction of any business within the State; or (2) the commission of a tortious act within the State. Ill.Rev.Stat.1989, ch. 110, par. 2-209(a)(1), (2).

The order of the trial court does not state on which basis it finds that Illinois courts have jurisdiction over the person of defendant. However, we think it is clear that plaintiff's cause of action did not arise out of defendant's transaction of any business in Illinois. Furthermore, plaintiff's complaint neither alleges nor reflects that defendant does transact any business in the State of Illinois, and certainly not on a continuous and substantial basis. Finally, on appeal, plaintiff does not argue defendant's transaction of business in Illinois as a basis for establishing jurisdiction over defendant under the long-arm statute. Instead, plaintiff argues on appeal that jurisdiction is established over defendant by its commission of a tortious act within the State of Illinois.

We note initially that plaintiff bears the burden of proof in establishing jurisdiction over defendant. (Bobka v. Cook County Hospital (1983), 117 Ill.App.3d 359, 360, 73 Ill.Dec. 3, 4, 453 N.E.2d 828, 829.) Plaintiff's complaint does not allege the commission of any act by defendant within the State of Illinois. Indeed, the record reflects that any acts defendant committed were committed entirely within the State of Mississippi. The complaint merely alleges that plaintiff suffered economic loss in Illinois. However, an economic loss which is felt in Illinois is not sufficient to confer jurisdiction in Illinois courts when the allegedly tortious act occurred outside of Illinois. (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill.2d 304, 312, 95 Ill.Dec. 496, 500, 489 N.E.2d 1360, 1364.) Thus, we do not think jurisdiction over defendant can be premised on defendant's commission of a tortious act within the State of Illinois. Consequently, we find that the trial court erred in finding that it had jurisdiction over the person of defendant and in overruling defendant's special and limited appearance objecting to jurisdiction.

There is an additional point which we must address. In its brief, plaintiff raises two issues which are not supported by the record. Plaintiff argues that defendant has waived its objection to jurisdiction by the filing of a motion to stay further proceedings in the trial court subsequent to the trial court's ruling on its special appearance and pending appeal. Plaintiff argues that the filing of the motion to stay constitutes a general appearance which waives defendant's objection to jurisdiction and submits defendant to the jurisdiction of the Illinois court. While we are not persuaded by plaintiff's argument, we find in any event that we are unable to address or decide it as the record on appeal does not include the motion to stay or any other proceedings subsequent to the order overruling defendant's special appearance. This court will not consider facts which are not in the record, and, while an appellee may defend a judgment on review on any ground appearing of record, the necessary factual basis for the determination of such a point must be contained in the record on appeal. (Sanni, Inc. v. Fiocchi (1982), 111 Ill.App.3d 234, 237, 66 Ill.Dec. 945, 948, 443 N.E.2d 1108, 1111.) This same rule applies to plaintiff's argument that it has established jurisdiction based on allegations of an amended complaint which was also filed subsequent to the order appealed from. The...