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07/26/95 D.S. AMERICA (EAST) INC. v. ELMENDORF

July 26, 1995

D.S. AMERICA (EAST) INC., D/B/A SCREEN (EAST), AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,
v.
ELMENDORF GRAFICA, INC., A PUERTO RICO CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Kathy M. Flanagan, Judge Presiding.

Rehearing Denied September 19, 1995. Petition for Leave to Appeal Denied January 31, 1996.

Presiding Justice Greiman delivered the opinion of the court: Rizzi, J., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Plaintiff D.S. America (East) Incorporated, d/b/a Screen (East), an Illinois corporation, filed a breach of contract action against defendant Elmendorf Grafica, Incorporated, a Puerto Rico corporation, seeking to recover an unpaid balance of $36,000. The trial court granted defendant's motion to dismiss for want of personal jurisdiction.

On appeal plaintiff asserts, inter alia, that the nonresident corporate defendant is subject to personal jurisdiction in Illinois under the long-arm statute (735 ILCS 5/2-209 (West 1992)). We agree and reverse the dismissal order and remand this matter to the trial court.

Since we find that there is in personam jurisdiction in Illinois, we need not consider plaintiff's challenges to an implicit ruling by the trial court denying plaintiff's motion for a default judgment and to the denial of plaintiff's motion to quash defendant's special and limited appearance based upon the allegation that defendant appeared generally requesting time to respond to plaintiff's motion for a default judgment.

The pleadings and affidavits provide the facts relevant to the jurisdictional issue in this case: (1) plaintiff's verified complaint with the subject purchase agreement attached as an exhibit, (2) defendant's motion to dismiss for want of personal jurisdiction with the affidavits of Carlos Cruz (president of defendant) and Hector Santiago (supervisor of the scanning and retouching department of defendant), (3) plaintiff's response to defendant's motion to dismiss and an attached affidavit of Edward S. Kennedy (an account executive for plaintiff), and (4) defendant's reply memorandum supported by a supplemental affidavit of Hector Santiago.

Plaintiff is an Illinois corporation, maintains a plant in Rolling Meadows and manufactures graphic design equipment. Defendant is a Puerto Rico corporation with its only place of business in Puerto Rico and is engaged in the business of computer graphics, computer printing and advertising.

The contract dispute is based upon an alleged default in an agreement (hereinafter agreement) for the purchase of equipment dated in March 1992 wherein D.S. America Incorporated is the seller and defendant is the buyer. The agreement is on the letterhead of "SCREEN (USA)" which then lists "DS America Incorporated" with its address in Rolling Meadows. The agreement provides for defendant to purchase three pieces of certain computer hardware and software: one omega link, one ECR electronic color retoucher and one expandedmemory 669MB external. The contract price totaled $120,000 and revealed a balance due of $36,000 to be paid 15 days after completion of installation. In the instant action, plaintiff seeks to obtain the $36,000 as yet unpaid.

The agreement further provides "FOB [freight on board] Rolling Meadows, Ill." and a handwritten note which states "one additional week of training at New Jersey included." Under the handwritten note appears the signature of Carlos Cruz (defendant's president) and the initials of E. Kennedy (plaintiff's salesman).

The agreement lists E. Kennedy as the sales representative and bears a typed date of March 20, 1992. Cruz, as defendant's president, signed the agreement on March 25, 1992. Kunio Tamaru, as president of D.S. America Incorporated, signed the agreement on March 31, 1992.

In June 1990 defendant purchased from plaintiff a "dot generator color scanner" (scanner) for the price of $194,500. The purchase agreement for this sale (which is not the subject of the instant contract action) lists plaintiff's address and the freight on board designation (FOB) in Rolling Meadows, Illinois.

According to the affidavit of Edward S. Kennedy, a salesman for plaintiff, in September 1990, Bob Breedlove, an employee of defendant, telephoned plaintiff's offices in Fairfield, New Jersey, to inquire about an electronic color retouching system (referred to as ECR but apparently not one of the products included in the now-contested agreement) which could interface with the scanner that was purchased in June 1990. Breedlove's call was routed to Edward Kennedy who worked in the New Jersey office as the account executive in charge of ECR sales for plaintiff.

Kennedy further attested that in September 1991 he placed two telephone calls to Breedlove at defendant's office in Puerto Rico to respond to Breedlove's inquiries about the ECR system. During these phone conversations, Breedlove reiterated defendant's interest in purchasing an ECR system to interface with defendant's scanner. Kennedy then sent pricing information to Breedlove. Thereafter on September 30, 1991, Kennedy visited defendant's offices in Puerto Rico to further discuss defendant's possible purchase of an ECR system.

According to the affidavit of Cruz, the president of defendant, defendant never contacted plaintiff in Illinois or New Jersey to seek to enter into contractual relations and never corresponded in any way with plaintiff to initiate any negotiation concerning the subject matter of this litigation. Cruz maintained that Kennedy's sales call at defendant's offices in Puerto Rico on September 30, 1991, was unsolicited. At that time, Cruz and Santiago, an employee of defendant, met with Kennedy who suggested that defendant needed a retouching ...


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