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12/11/87 Jean Brainerd Et Al., v. Daniel Balish Et Al.

December 11, 1987

JEAN BRAINERD ET AL., PLAINTIFFS-APPELLANTS

v.

DANIEL BALISH ET AL., DEFENDANTS-APPELLEES

(3) THE OWNERSHIP, USE, OR POSSESSION OF ANY REAL ESTATE SITUATED IN THIS STATE; . . .." *fn1 (ILL. RE

v.

STAT. 1985, CH. 110, PAR. 2-209.)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

518 N.E.2d 317, 164 Ill. App. 3d 836, 115 Ill. Dec. 792 1987.IL.1836

Appeal from the Circuit Court of Cook County; the Hon. Francis J. Reilly, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, P.J., and LORENZ, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Plaintiffs, Jean and Andrew Brainerd, appeal from the orders of the circuit court of Cook County dismissing their complaint based on a theory of fraud against defendants, Daniel and Carolyn Balish, for lack of in personam jurisdiction and the court's denial of their motion for reconsideration. For the reasons set forth below, we affirm.

On December 12, 1985, plaintiffs filed their complaint against defendants, who are domiciled in the State of Florida and residents of the State of Pennsylvania. In their complaint, plaintiffs charged defendants with making promises in three telephone conversations to pay a portion of expenses for the recarpeting of a common hallway in a co-operative apartment building located at 860 North Lake Shore Drive in Chicago. Plaintiffs initially contacted defendants based on a listing agreement signed by defendants for the sale of an apartment owned by Joseph and Betty Springer and located on the same floor as plaintiffs' apartment. Defendant Carolyn Balish is the sister of Betty Springer and defendants were acting on behalf of the Springers, who were in Ecuador at the time.

Defendants were served with summons in Pennsylvania. They filed a special and limited appearance and a motion to quash the purported service. In a subsequent affidavit filed by defendant Daniel Balish, he stated that he told plaintiffs he thought the Springers would be willing to share the expense of recarpeting the hallway but only if each of the other tenants on the floor agreed to pay an equivalent share, and that two tenants later refused to share the cost. Defendant further stated that at no time did he "explicitly authorize or encourage" plaintiffs to proceed with the renovation, knowing that the cost thereof would amount to approximately $1,500. On August 4, 1986, the trial court granted defendants' motion to quash service of the summons and dismissed the cause for lack of in personam jurisdiction. The court also denied plaintiffs' subsequent motion for reconsideration.

On appeal, plaintiffs assert that the trial court's orders were in error based upon the Illinois long-arm statute, which confers in personam jurisdiction over nonresident parties in certain situations. (Ill. Rev. Stat. 1985, ch. 110, par. 2-209.) The statute provides, in pertinent part, as follows:

"(a) 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 or her 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:

(1) The transaction of any business within this State;

(2) The commission of a tortious act within this State;

Our supreme court has held that whether an Illinois court has acquired jurisdiction under the statute depends on whether the defendant engaged in one of the jurisdictional acts enumerated in the statute and whether the exercise of long-arm jurisdiction is consistent with due process safeguards. (Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 427 N.E.2d 1203.) If jurisdiction is not found under any of the enumerated acts of the statute, it is unnecessary to determine if jurisdiction is constitutionally permissible under the due process clause. R. W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 489 N.E.2d 1360.

Here, plaintiffs first argue that defendants' representation on behalf of the Springers in effecting the sale of the subject apartment, based on their affixing their names to the exclusive listing agreement and mailing the agreement back into the State, as well as their telephone calls to the real estate broker and their conversations with plaintiffs, constituted transacting business in Illinois. To constitute "transaction of any business" (see Ill. Rev. Stat. 1985, ch. 110, par. 2-209(1)), and thus bring a nonresident party within the jurisdiction of Illinois courts, a defendant must voluntarily seek the benefits and protections of the laws of this State. (Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 395 N.E.2d 1131.) The unilateral acts of a plaintiff cannot serve to satisfy ...


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