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Kutner v. Demassa

OPINION FILED MAY 6, 1981.

LUIS KUTNER, PLAINTIFF-APPELLANT,

v.

PHILIP DEMASSA, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Luis Kutner, plaintiff-appellant, appeals from the order of the circuit court of Cook County quashing service of summons and dismissing his second amended complaint. Plaintiff's original complaint for defamation, invasion of privacy and infliction of emotional distress was filed October 18, 1976. Defendant Philip DeMassa appeared specially and moved to quash service for lack of jurisdiction in personam. The circuit court granted the motion, allowing plaintiff leave to amend. On July 6, 1978, plaintiff filed an amended complaint. Defendant renewed his motion to quash and attached in support, his affidavit denying jurisdictional contacts with Illinois. Plaintiff filed his counteraffidavit attached to a memorandum in opposition to defendant's motion. The service of summons was quashed, and plaintiff was granted leave to amend a second time. Upon the filing of the second amended complaint, defendant again moved to quash for lack of jurisdiction in personam incorporating by reference his earlier affidavit. It is from the order granting this motion that plaintiff appeals.

This is the full text of the affidavit defendant filed in support of his motion:

"I, PHILIP A. DeMASSA, declare that I am a resident of San Diego County, California, and have resided continuously in San Diego since 1952 when I was 7 years old. I am a member of the California Bar and was admitted to the practice of law in 1971.

With the exception of attending the Democratic National Convention in Chicago in 1968, I have never been in the State of Illinois nor have I had any personal, business or professional contacts with the State of Illinois except as stated in this Declaration.

I made a single telephone call from San Diego to MR. LUIS KUTNER, in Chicago, with regard to an action pending in the San Diego Superior Court.

I have had no additional contact with the State of Illinois.

I have read the Amended Complaint on file in this action. In particular, I have read the allegations stated in the 17th paragraph of Count I. These allegations which state that a man named VODRE NUNNALLY and a companion performed certain acts including the threatening and attempted extortion of LUIS KUTNER in Illinois as my agent and employee are false, as are the remaining allegations stated in the Amended Complaint which pertain to me.

VODRE NUNNALLY has never been authorized to act as my agent or employee in any capacity. We have never engaged in any common business or social venture and I have no knowledge relative to the identity of the individual referred to in the Complaint as `a Mexican male person'.

I declare under penalty of perjury that the foregoing is true and correct and that the facts stated in this declaration are matters which are within my personal knowledge and to which I could competently testify in a Court of law."

In response plaintiff filed his "Opposition to Motion to Quash Purported Service of Summons on Second Amended Complaint" which in part states:

"The Second Amended Complaint in this action alleges a tort committed in Illinois by agents of the Defendant, PHILIP DeMASSA, sent to Illinois from California by PHILIP DeMASSA and others, for the purpose of committing a tort against the Plaintiff. * * *"

Plaintiff also filed a counteraffidavit stating:

"1. I am the Plaintiff in the ...


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