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06/04/96 ALLERION v. NUEVA ICACOS

June 4, 1996

ALLERION, INC., PLAINTIFF-APPELLEE,
v.
NUEVA ICACOS, S.A. DE C.V., DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, COUNTY DEPARTMENT, LAW DIVISION. THE HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING.

As Modified Upon Denial of Rehearing September 17, 1996. Rehearing Denied September 5, 1996. Released for Publication September 16, 1996.

The Honorable Justice Scariano delivered the opinion of the court. DiVito, J., and Burke, J., concur.

The opinion of the court was delivered by: Scariano

MODIFIED UPON DENIAL OF REHEARING

The Honorable Justice SCARIANO delivered the opinion of the court:

Plaintiff, Allerion, Inc. is the successor company to Ultimate Computer Corporation, which entered into an "Agreement for Purchase of Equipment" ("the contract") with defendant Nueva Icacos, S.A. de C.V. ("Nueva") on January 28, 1993. *fn1 After Allerion, a New Jersey corporation licensed and authorized to do business in Illinois, filed a breach of contract action against it, Nueva filed a special appearance, objecting to the court's exercise of personal jurisdiction over it, and moved to quash service of summons.

In support of its objection, Nueva submitted the affidavit of its "General Administrative Manager", Juan M. Rodriguez, which: denied that any of its agents or representatives had ever entered Illinois for any purpose; claimed that neither party to the contract resided in Illinois; alleged that the contract did not require any performance in Illinois; stated that the contract called for the application of New Jersey law; and denied that it ever sought or obtained any benefits or protections of Illinois law or performed any acts which would subject it to the jurisdiction of the Illinois courts.

Allerion's response included the affidavits of Ed Jackowiak, Jerry Reyling, Jay Sturm, and Allan Taylor. Jackowiak was the sales executive based at Allerion's Illinois branch office who was "directly responsible for the oversight and management of the computer sale transaction" between Allerion and Nueva, "including system design, product costings, system consolidation and implementation, and customer questions."

The contract was signed on behalf of Allerion by Jackowiak, in Illinois, and by Nueva in Acapulco, "and both faxed to Ed Jackowiak at Plaintiff's Illinois office, and sent via overnight mail to the headquarters of Hyatt International, in Chicago, Illinois -- and not sent to New Jersey". Jackowiak alleged that this evidenced "that Mr. Shakalo and Mr. Bos *fn2 were completely apprised of the fact that the transaction in question was based in the State of Illinois."

"With the exception of the physical signing of the contract in question, the performance of the contract was focused almost entirely in the State of Illinois", that is, "[Jackowiak] coordinated and oversaw the production, customization, and shipment schedule of all of the contracted-for computer equipment into Speed System International, Inc.'s Illinois-based warehouse, the consolidation of said equipment in the Illinois-based warehouse, and its ultimate shipment by Speed System International, Inc. from Illinois to the duty-free warehouse in Laredo Texas -- where it remained until the breach in question occurred." Jackowiak also averred that "the parties to this transaction were aware of the fact that Allerion, Inc.'s Illinois-based international sales office would be performing the computer sale transaction that is the core of this matter."

Jackowiak also claimed to have "dealt extensively with both" Bos and Shakalo; to have "engaged in approximately twenty-five (25) telephone conversations and several items of written correspondence with Mr. Shakalo and Mr. Bos with regard to the contract in question"; and that "throughout his numerous dealings with Mr. Bos and Mr. Shakalo, they (Bos and Shakalo) knew to direct all correspondence regarding the computer sale contract to him (Ed Jackowiak) at Allerion, Inc.'s Illinois branch office". The affidavit incorporated a "facsimile transmission, dated February 15, 199[3], and sent to [Jackowiak] at Allerion, Inc.'s Illinois office by Michel Bos" which "clearly discussed detailed elements of the contract".

The affidavits of Reyling, Sturm, and Taylor claimed that each of them "worked closely" on the contract with Nueva, and confirmed: "that a primary reason for locating the international accounts office of Plaintiff, Allerion, Inc., in Illinois [was] its proximity to the headquarters of Hyatt International, the franchisor and management company of the Acapulco-based hotel owned by Defendant [Nueva]"; that most of the performance of the contract was to be "undertaken, supervised, and overseen by the Illinois office of Plaintiff, Allerion, Inc."; "that significant and sustained telephonic and written communication has taken place between" Nueva and Allerion's Illinois office; that "performance of the contract was focused almost entirely in the State of Illinois"; that the signed contract, sent to Allerion, in Illinois, and to Hyatt International, in Illinois, evidenced Nueva's owner's knowledge that the transaction in question was based in Illinois; and that the direction to commence production and custom assembly, the warehousing, and the consolidation of computer components were all performed in Illinois.

The attachments to Allerion's reply indicate that: the contract listed over 200 items of computer equipment, peripherals, and accessories, and the prices charged therefor, and bears the signature of the Director of Nueva; the contract provided that the 30% downpayment would be made in U.S. dollars to [Allerion], and the remaining payments would be "held with Mr. Stoga of Hyatt International, until such time [Allerion] meets the terms of the Agreement"; the contract's choice of law provision indicated that New Jersey law would govern; Hyatt International sent a letter to Joe Shakalo, in Mexico, indicating that a representative of Hyatt International went to Mexico to discuss the computer system, and that all the agreements were being sent to him in Mexico for his signature; and Michel Bos of Hyatt Acapulco sent a letter dated February 15, 1993, to Mr. Jackowiak which sought clarification of items contained on an invoice and referred to items "ordered according to contract 1-28-93".

Nueva's response to Allerion's reply contained another affidavit by Juan Rodriguez, in which he indicated that Nueva entered into a "Management Technical Assistance Agreement" with Hoteles Exelaris, the predecessor of Hyatt Mexico, but that it had never entered into any such agreement with Hyatt International Corporation, nor had it ever requested or authorized Hyatt International Corporation to deal on its behalf with ...


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