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Coca-cola Co. v. A. Epstein & Sons Int'l

OPINION FILED SEPTEMBER 23, 1980.

THE COCA-COLA COMPANY ET AL., PLAINTIFFS,

v.

A. EPSTEIN AND SONS INTERNATIONAL, INC., ET AL., DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS. — (APPROVED ROOFING AND SHEET METAL COMPANY, INC., THIRD-PARTY DEFENDANT-APPELLEE; CROWTHER, INC., ET AL., THIRD-PARTY DEFENDANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. ALLEN HARTMAN, Judge, presiding. MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 22, 1980.

Third-party plaintiffs, A. Epstein and Sons International, Incorporated (a Delaware corporation headquartered in Illinois), and its wholly owned subsidiaries, A. Epstein & Sons Incorporated and the McKinley Company (both Illinois corporations), appeal from an order of the circuit court of Cook County dismissing for lack of personal jurisdiction a third-party complaint against the nonresident third-party defendant, Approved Roofing and Sheet Metal Company (hereinafter referred to as Approved), an Ohio corporation. The question presented by this appeal is whether the jurisdictional facts alleged establish sufficient contacts between the nonresident defendant and the State of Illinois to justify the courts> of Illinois exercising personal jurisdiction.

For reasons hereinafter set forth we affirm the judgment of the circuit court of Cook County.

Third-party plaintiffs contend that Approved transacted business within this State, thereby rendering it amenable to jurisdiction within Illinois pursuant to section 17 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 17) which provides for in personam jurisdiction over nonresident defendants. Commonly known as the Illinois "long arm" statute, section 17 states 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 of such acts:

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

It is undisputed that if jurisdiction is to be sustained over the nonresident defendant in the instant case it must be acquired under the Illinois "long arm" statute. It is our conclusion that Approved's alleged contacts with the State of Illinois are not of such a nature and quality to support the exercise of personal jurisdiction.

The pertinent facts, while contradictory as to certain allegations, are as follows:

The Coca-Cola Company and Canners for Coca-Cola Bottlers, Incorporated (hereinafter referred to collectively as Coca-Cola), brought suit against A. Epstein & Sons International, Incorporated (hereinafter referred to as International), its wholly owned Illinois subsidiaries, A. Epstein & Sons, Incorporated (hereinafter referred to as Sons), and the McKinley Company (hereinafter referred to as McKinley), and the A. Epstein Companies, Incorporated (hereinafter referred to as Companies) *fn1, for alleged breach of six written contracts relating to the design and construction of the roofs of six facilities located in three States: Ohio, Illinois and New Hampshire. International, Sons, McKinley and Companies answered denying the material allegations and asserting various defenses. Additionally, three of the defendants, International, Companies and McKinley (hereinafter collectively referred to as third-party plaintiffs), filed on May 3, 1978, a third-party complaint against the three subcontractors who had actually installed four of the allegedly defective roofs. Third-party defendant, Crowther Roofing & Sheet Metal, Inc., is an Illinois corporation. Third-party defendant, Reliable Roofing & Sheet Metal Co. Inc., a foreign corporation, does not appeal from the determination of the trial court that it had sufficient contacts with Illinois. Only Approved, the Ohio third-party defendant, is before this court on appeal.

On June 2, 1978, Approved filed a special and limited appearance and a motion to quash service of summons, attacking the jurisdiction of the Illinois courts> (Ill. Rev. Stat. 1977, ch. 110, par. 20). Summons had been served in accordance with the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 1 et seq.). In support of its motion to quash service of summons, Approved submitted memoranda of law and an affidavit alleging that it had done no act to submit to the jurisdiction of the Illinois courts>. Third-party plaintiffs filed a memorandum and affidavits in opposition to the motion of Approved. After arguments of counsel, the trial court on November 1, 1978, granted Approved's motion. On January 17, 1979, third-party plaintiffs filed a motion to reconsider the order of November 1, 1978, dismissing Approved (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a)). After additional memoranda and arguments of counsel, the trial court on March 7, 1979, denied the third-party plaintiffs' motion. On August 16, 1979, the orders of November 1, 1978, and March 6, 1979, were certified by the trial court and this appeal taken.

Approved is a roofing contractor located in Columbus, Ohio. It is a corporation organized and existing under the laws of Ohio. Approved maintains it has never performed services or furnished materials outside Ohio, and its business is limited almost exclusively to construction projects located within a 75-mile radius of Columbus, Ohio. In 1969 and 1970 Approved was listed in the directory of the National Roofing Contractors Association headquartered in Oak Park, Illinois. This directory lists the names and addresses of its members.

During 1970 Approved subscribed to reporting services listing construction contracts to be put out for bid in Ohio. Approved learned from such a service that bids were to be accepted on a contract for the installation of a roof on a can manufacturing plant and warehouse to be built in Columbus, Ohio. At some time prior to the deadline for bids on the aforementioned project, Approved contacted McKinley's Ohio construction manager, William Swigert, in Columbus, Ohio, for the specifications pertaining to the project. Approved met with Swigert and ultimately submitted its bid on the project to Swigert in Columbus, Ohio. Swigert then forwarded the bid to McKinley in Chicago.

A written contract, entitled "purchase order," addressed to Approved and dated December 10, 1969, was prepared by McKinley in Chicago, Illinois, and sent to Columbus, Ohio. The contract allegedly incorporated the terms of Approved's bid and specified additionally that the terms and conditions of the contract between Coca-Cola and the general contractor, McKinley, would become part of this contract between McKinley and Approved.

The terms of the contract between Coca-Cola and McKinley provide that "[t]he law of the place of the building shall govern the construction of the contract," and that McKinley maintain in Ohio an on-site representative. The contract between McKinley and Approved further provided that Approved furnish Workmen's Compensation and Structural insurance and issue a guarantee to McKinley when its contract was completed. The contract between McKinley and Approved further required that ...


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