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Hurletron Whittier, Inc. v. Barda

OPINION FILED MARCH 20, 1980.

HURLETRON WHITTIER, INC., ET AL., PLAINTIFFS-APPELLEES,

v.

DONALD BARDA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MYRON GOMBERG, Judge, presiding.

MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 10, 1980.

Plaintiff, Altair Corporation (Altair), and its wholly owned subsidiary, Hurletron Whittier, Inc. (HW), brought this contract action in the circuit court of Cook County against defendant, Donald Barda. The trial court denied defendant's motion to quash service of summons and certified the question for an interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1977, ch. 110A, par. 308). We granted defendant's application for leave to appeal from that order.

The question certified for review is whether an Illinois court may exercise personal jurisdiction over the defendant within the scope of the Illinois "long-arm" statute (Ill. Rev. Stat. 1977, ch. 110, par. 17(1)(a), (b) and consistent with due process.

We reverse the order of the trial court and remand with directions.

Defendant, a California resident for the past 18 years, owned Telonic, a company with assets located in California and Italy. In 1973, defendant sold his interest in Telonic to plaintiff HW, a California corporation with its principal place of business in California. HW is a wholly owned subsidiary of plaintiff Altair, a Delaware corporation with its principal place of business in Illinois. Between October 1974 and September 1975, Altair's corporate headquarters were located in California.

Concurrently with the sale of Telonic and its merger into HW, defendant entered into an agreement with HW and Altair, providing that defendant was to be employed by HW as its president. Altair was a party to the employment agreement as a guarantor of HW's obligations thereunder, and, in return, defendant agreed not to compete with Altair. The employment agreement was negotiated and executed by parties in California. J.H. Crookes, chairman and chief executive officer of Altair, who signed the agreement on behalf of both HW and Altair, assured defendant that all of his duties for HW were to be performed in California.

In his personal capacity, defendant had neither owned nor rented property in Illinois, has never paid taxes in Illinois, and has never maintained an office, address, telephone, bank account or agent in Illinois. Defendant has been in Illinois on only five or six occasions. These visits were never more than one day in duration and all took place between July 1974 and December 1976, at the request of Altair. The purpose of each trip was to present to Altair a report in the nature of an annual report. At one such meeting in Chicago in August 1974, defendant met with Crookes, and another officer of Altair to discuss a modification in defendant's employment agreement, which is the subject of count III of the plaintiffs' complaint. In all other respects, defendant's duties to HW were performed in California until his employment terminated on December 31, 1977.

On June 20, 1978, plaintiffs filed a three-count complaint against defendant. Count I charges breach of the employment agreement and corporate mismanagement arising out of an incident in 1977. Defendant allegedly failed to pay an Italian notary's claim of approximately $450, as a result of which the Italian corporation (a Telonic subsidiary) was placed in receivership and HW was unable to recover an outstanding debt owed to it by the Italian corporation. Count II is based on the same alleged facts and claims that defendant's conduct resulted in a breach of his fiduciary duty to plaintiffs. Count III seeks a declaratory judgment of the parties' respective rights and obligations under a modified bonus provision in defendant's employment agreement, negotiated in Chicago in August of 1974, and, later, allegedly repudiated by defendant. Plaintiffs seek declaratory relief because "[d]efendant now threatens suit on the matter of said bonus."

On January 19, 1979, the trial court denied defendant's motion to quash the service of summons. The question was certified for appeal on April 19, 1979, and this appeal followed.

OPINION

It is undisputed that if jurisdiction is to be sustained over the nonresident defendant in this case, it must be acquired under the Illinois "long-arm" statute (Ill. Rev. Stat. 1977, ch. 110, par. 17), which provides in relevant 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 ...


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