Woodfield Ford, Inc. v. Akins Ford Corp.

• Decision Date: 05 October 1979
• Docket Number: No. 79-109,79-109
• Citation: 395 N.E.2d 1131,32 Ill.Dec. 750,77 Ill.App.3d 343
• Parties: , 32 Ill.Dec. 750 WOODFIELD FORD, INC., Plaintiff-Appellee, v. AKINS FORD CORPORATION, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1131

395 N.E.2d 1131

77 Ill.App.3d 343, 32 Ill.Dec. 750

WOODFIELD FORD, INC., Plaintiff-Appellee, v. AKINS FORD CORPORATION, Defendant-Appellant.

No. 79-109.

Appellate Court of Illinois, First District, Fifth Division.

Oct. 5, 1979.

[32 Ill.Dec. 751] McBride, Baker, Wienke & Schlosser, Chicago (Frank R. Krok and William H. Crispin, Chicago, of counsel), for defendant-appellant

Bruce M. Bozich of Edward R. Vrdolyak, Ltd., Chicago, for plaintiff-appellee.

MEJDA, Justice:

Defendant brings this interlocutory appeal from an order of the trial court denying its motion to quash service of process and dismiss for lack of personal jurisdiction. We granted leave to appeal pursuant to Supreme Court Rule 308. (Ill.Rev.Stat.1977, ch. 110A, par. 308.) The sole issue before us is whether defendant's contacts with the State of Illinois are sufficient to subject defendant to the In personam jurisdiction of the Illinois courts. We reverse. The facts are as follows.

Plaintiff is a Delaware corporation licensed to do business in Illinois. Defendant is a Georgia corporation licensed to do business there.

Plaintiff filed a verified complaint alleging that on or about May 20, 1977, Harold Defendant was served at its offices in Georgia and filed a special and limited appearance pursuant to section 20 of the Illinois Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 20) challenging the court's personal jurisdiction over defendant.

[32 Ill.Dec. 752] Akins, an agent of defendant, telephoned Thomas J. Peters of the plaintiff corporation in Schaumburg, Illinois. During that conversation Akins orally offered to sell 15 vehicles to plaintiff, and plaintiff agreed to pay a total purchase price of $76,244.98. The complaint further alleges that the vehicles were shipped to plaintiff, arriving in early July 1977, and that plaintiff sent defendant a check for the full purchase price. Plaintiff alleges that the vehicles did not conform to the contract. Five of them were tendered back to defendant but were refused. The action was brought in the circuit court of Cook County to seek damages for the alleged breach of contract.

According to defendant's motion to dismiss and to quash service of process, defendant's principal office is in Barrow County, Georgia, and defendant has no agents, offices or bank accounts in Illinois, and has never transacted any business here. Attached to the motion was the affidavit of defendant's president, Harold Akins, in which he stated that, during his tenure as president of the defendant corporation, defendant had not transported or arranged for the transportation of any vehicles from Georgia to Illinois, and that defendant had solicited no orders from any persons or corporations in Illinois.

In his affidavit Akins stated that defendant had transacted business with plaintiff twice in the eight years that Akins had been defendant's president. The first transaction had been initiated in April 1977 by an employee of plaintiff who was also a friend of Akins. Akins' friend had called him in Georgia, told him of her employment by plaintiff in Illinois, and asked if defendant would consider selling any vehicles to plaintiff. The initial telephone contact had been followed by a meeting in Georgia between Akins and Peters, plaintiff's president. In that transaction plaintiff arranged for the transportation of the vehicles purchased from defendant.

Akins further stated that, following the first transaction and prior to May 20, 1977, he received a written message from defendant's switchboard operator saying that Peters had called from Schaumburg, Illinois to inquire about the possible purchase of additional vehicles. The message also asked Akins to return Peters' call. Akins placed the call from his office in Georgia to Peters in Illinois and Peters told Akins that plaintiff was interested in purchasing more vehicles from defendant. Following the conversation Akins reviewed defendant's inventory and again called Peters in Illinois to tell him that defendant was willing to sell 16 more vehicles to plaintiff. Akins then sent Peters a letter enclosing copies of the original invoices for the vehicles.

Akins further stated that on or about May 20, 1977, Peters called Akins in Georgia and, after further negotiations, it was agreed that plaintiff would purchase 15 vehicles from defendant for $76,244.98. In early June 1977 Akins received a letter from Peters which enclosed a check for the full purchase price. Following his receipt of payment, Akins received a telephone call in Georgia from Peters in Illinois in which Peters told Akins of the transportation arrangements made by plaintiff and authorized Akins to surrender possession of the vehicles to the carrier for shipment to plaintiff in Illinois. Defendant neither arranged nor paid for the transportation of the vehicles.

No counter-affidavits were filed by plaintiff, but Peters apparently testified in opposition to defendant's motion. The motion was continued for further argument and both parties submitted memoranda in support of their respective positions. Following denial of its section 20 motion, defendant sought leave to appeal. No transcripts of any of the trial court proceedings have been included in the record on appeal.

OPINION

Defendant contends that the trial court erred in denying its motion to quash service of process and dismiss the cause of action for lack of personal jurisdiction because defendant's contacts with the state of Illinois were not sufficient to subject it to the jurisdiction of the Illinois courts. Personal jurisdiction may be acquired over a non-resident pursuant to section 17 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 17), which is commonly known as the "long arm" statute and provides in pertinent part:

"(1) 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 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:

(a) The transaction of any business within this State;"

The long-arm statute reflects "a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process clause." (Nelson v. Miller (1957), 11 Ill.2d 378, 389, 143 N.E.2d 673, 679.) The requirements of due process were first set out in International Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, in which the Supreme Court stated that a defendant must have "certain minimum contacts with it (the forum state) such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' (Citations.)" (326 U.S. at 316, 66 S.Ct. at 158.) International Shoe was cited by the Supreme Court in the course of further defining due process requirements in Hanson v. Denckla (1958), 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283. The Court stated that "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." (357 U.S. at 253, 78 S.Ct. at 1240.) The standards expressed in International Shoe continue to be the test for determining whether a foreign corporation is subject to the jurisdiction of a state's courts. Shaffer v. Heitner (1977), 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683.

The State of Illinois has applied the principles of International Shoe on a case-by-case basis (Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill.2d 432, 444, 176 N.E.2d 761, 767), avoiding mechanical or quantitative evaluations of the defendant's activities in the forum, and analyzing instead the quality of the acts under the circumstances. (Braband v. Beech Aircraft Corp. (1978), 72 Ill.2d 548, 21 Ill.Dec. 888, 382 N.E.2d 252; see also Nelson v. Miller, 11 Ill.2d at 384, 143 N.E.2d at 676.) The resulting test is a flexible one, emphasizing the reasonableness of subjecting a defendant to a foreign jurisdiction. Braband v. Beech Aircraft Corp.; Nelson v. Miller; Gray v. American Radiator & Standard Sanitary Corp.

Before considering the jurisdictional issue in light of the foregoing principles, we first note that plaintiff challenges the sufficiency of the record for review due to the absence of a transcript of the hearing on defendant's section 20 motion. While it is the duty of the party pursuing an appeal to present an adequate record to this court, the absence of the transcript in the instant case serves only to prevent us from reviewing issues for which evidence may be necessary. Abbey Plumbing & Heating, Inc. v. Brown (1977), 47 Ill.App.3d 719, 7 Ill.Dec. 830, 365 N.E.2d 115.

No such issue has been raised here. The only fact in dispute is whether the telephone call in which the final terms of the sale were negotiated was made by Peters or Akins. The resolution of that fact is not necessary to our determination of the jurisdictional issue for, contrary to plaintiff's contention, that issue is not one of the sufficiency of the evidence or of judicial discretion, either of which would necessitate an examination of a transcript. Rather, the issue before us is whether, as a matter of law, defendant had sufficient contact with the state of Illinois to become subject to the jurisdiction of our courts under the long-arm statute. Where the issue is solely one of law, the absence of the transcript will not bar our review. Maynard v. Parker (3d Dist. 1977), 54 Ill.App.3d 141, 142-143, 11 Ill.Dec. 898, 899, 369 N.E.2d 352, 353.

We believe that the record before us is sufficient for review of the jurisdictional issue. All of the determinative facts are contained in the complaint and in Akins' affidavit and neither party has stated any facts to add to or contradict the facts...