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01/28/88 American Funeral Computer v. J. B. Floyd

January 28, 1988

AMERICAN FUNERAL COMPUTER SERVICE, INC., PLAINTIFF-APPELLEE

v.

J. B. FLOYD, DEFENDANT-APPELLANT

(1) THE TRANSACTION OF ANY BUSINESS WITHIN THIS STATE." (ILL. RE

v.

STAT. 1985, CH. 110, PAR. 2-209(A)(1).)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

519 N.E.2d 78, 165 Ill. App. 3d 309, 116 Ill. Dec. 488 1988.IL.97

Appeal from the Circuit Court of Sangamon County; the Hon. Jeanne E. Scott, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On April 21, 1987, plaintiff American Funeral Computer Service, Inc., filed a complaint in the circuit court of Sangamon County against defendant J. B. Floyd. The complaint alleged defendant had defaulted in making payment on a contract with plaintiff whereby plaintiff had furnished defendant a computer, computer software, and related goods and services. Defendant moved, on special and limited appearance pursuant to section 2-301 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-301), objecting to the jurisdiction of the court over his person and requesting that the complaint be dismissed. He maintained he had not submitted himself to the jurisdiction of the Illinois courts. After a hearing on the motion, the court found defendant had committed acts submitting himself to the jurisdiction of the court. The motion to dismiss was denied.

This court granted defendant's petition for leave to appeal which was filed pursuant to Supreme Court Rule 306(a)(1)(iii) (107 Ill. 2d R. 306(a)(1)(iii)). On appeal, defendant states two reasons why he was not subject to the personal jurisdiction of an Illinois court. Plaintiff contends personal jurisdiction was obtained over defendant by virtue of section 2 -- 209(a)(1) of the Code, which states:

"(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:

Defendant denies that his participation in the transaction giving rise to this suit constituted his doing "any business within this State" within the meaning of section 2 -- 209(a)(1). In addition, defendant contends neither his participation in that transaction nor any other act on his part created a sufficient contact within this State to permit courts of this State to exercise personal jurisdiction over him consistent with the due process requirements set forth in the seminal case of International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154.

Because of the limited record before us, we must base our decision of the propriety of the denial of the motion to dismiss upon (1) the complaint, (2) a bystander's bill certified by the Judge hearing the motion, and (3) the affidavit of defendant. The following chain of events is undisputed. Beginning in 1984, plaintiff, working in its office in Springfield, performed bookkeeping services for defendant's funeral home operation located in Tennessee. Upon performing the bookkeeping, plaintiff transmitted the records to defendant in Tennessee. In July of 1985, representatives of plaintiff went to Tennessee and demonstrated a computer and its software. The parties then entered into a contract in Tennessee whereby defendant agreed to buy a computer together with software from plaintiff. When ready, the equipment was sent from plaintiff's place of business to defendant's business in Tennessee. Defendant sent two payments from his place of business in Tennessee to plaintiff's business in Springfield. In June of 1986, after defendant had expressed dissatisfaction with the equipment, defendant visited plaintiff's place of business in Springfield.

Only one significant factual matter is in dispute between the parties. Plaintiff's president testified (1) plaintiff does not send employees either in or out of Illinois to solicit business; (2) in July of 1985, defendant contacted plaintiff and asked that a representative be sent to defendant's place of business in Tennessee to assist defendant "involving the incorporation of its business"; and (3) while that representative was at defendant's place of business, defendant asked that representative to send another representative to demonstrate a computer and software which could be used by defendant. On the other hand, according to defendant's affidavit, plaintiff initiated conversation concerning the furnishing of the computer and then sent a representative to Tennessee to demonstrate the computer. The circuit court chose to believe plaintiff's version, that defendant initiated inquiry about the computer and requested that a representative be sent from Springfield to Tennessee to demonstrate a computer. Based upon the scanty record before us, we cannot say that the court's interpretation of the evidence is contrary to the manifest weight of the evidence. Accordingly, we must give due deference to that determination.

Most of the opinion is devoted to determining whether defendant's conduct brought him within the coverage of section 2 -- 209(a)(1) of the Code. Conduct bringing a person within the requirements of that section and conduct creating sufficient contacts to meet due process requirements are not exactly the same, but section 2 -- 209(a)(1) requirements are generally more strict than those necessary to meet due process standards. See Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436, 427 N.E.2d 1203, 1206.

The acts placing a defendant under section 2 -- 209(a)(1) must be the acts of that defendant or one acting on his behalf (Unarco Industries, Inc. v. Frederick Manufacturing Co. (1982), 109 Ill. App. 3d 189, 440 N.E.2d 360), and those acts must be part of the transaction giving rise to the litigation. (Gordon v. Tow (1986), 148 Ill. App. 3d 275, 498 N.E.2d 718.) Accordingly, based on the foregoing evidence, we must determine whether personal jurisdiction over defendant arose from: (1) defendant's request for an agent of plaintiff to come to Tennessee to discuss the incorporation of his business; (2) defendant's request to that representative for another representative of plaintiff to come to demonstrate a computer and computer software; (3) defendant's entering into a contract with plaintiff in Tennessee for a computer to be shipped from Illinois; (4) defendant's agreement that payments would be made in Illinois and his making of those payments by sending them to Illinois; and (5) defendant's trip to Illinois to witness a demonstration of the workings of the type of software furnished him.

Clearly, the mere fact defendant entered into a contract in Tennessee for the sale and shipment of a computer to him from Illinois, with payment to be made in Illinois, was insufficient to constitute the transaction of business in Illinois within the meaning of section 2 -- 209(a)(1) of the Code. (Artoe v. Mann (1976), 36 Ill. App. 3d 204, 343 N.E.2d 647.) Thus, any such jurisdiction must arise from defendant's additional contacts within Illinois, consisting of (1) defendant's request for a representative to come from ...


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