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Stein v. Lodge

May 12, 1998


The opinion of the court was delivered by: Presiding Justice McNULTY

Andrea and Edward Stein sued Rio Parismina Lodge (the Lodge), its owner Judy Heidt, and Fish & Game Frontiers (Frontiers), a travel agency, seeking compensation for injuries suffered on a trip to the Lodge arranged by Frontiers. Plaintiffs appeal from dismissal of the suit for lack of personal jurisdiction.

Plaintiffs alleged in counts I and III of their complaint that in 1993 Edward, through Frontiers, reserved a room at the Lodge, in Costa Rica, as part of a fishing trip package deal defendants advertised. On March 1, 1994, Edward boarded one of the Lodge's boats, and the boat headed down the Parismina River to the Caribbean Sea. Tall ocean breakers met the boat near the mouth of the river, swamping the boat and hitting Edward with such force that he lost his hold on the boat's railing. He suffered severe injury. Andrea sought compensation for her loss of consortium due to Edward's injuries. Plaintiffs charged the Lodge and Heidt with negligently failing to check the height of the breakers before permitting the boat to embark and inadequately training and supervising the boat's captain.

In counts II and IV plaintiffs alleged that Frontiers warranted Edward's safety and made misrepresentations of facts concerning the safety of the Lodge's boats and operations, in violation of the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1992)). The contract attached to the complaint showed that Frontiers arranged transportation from San Jose, Costa Rica, to the Lodge, but not from Illinois to San Jose.

Heidt and the Lodge moved to dismiss for want of personal jurisdiction. Heidt, in her affidavit, swore that neither she nor the Lodge had registered to do business in Illinois, neither owned property in Illinois, neither had an Illinois telephone number, and neither had a registered agent in Illinois. Heidt never visited Illinois on behalf of the Lodge. Frontiers had no contractual arrangement with the Lodge.

Frontiers moved separately to dismiss. The president of Frontiers swore in an affidavit that Edward contacted Frontiers in Pennsylvania, at Frontiers' principal place of business. Frontiers had not registered to do business in Illinois, owned no property in Illinois, had no Illinois telephone number, and employed no registered agent in Illinois. Frontiers also participated in no travel expositions in Illinois. Other travel agents also arrange trips to the Lodge.

In response plaintiffs presented two documents containing alleged misrepresentations, which Frontiers mailed to plaintiffs' Illinois address. Edward also swore in an affidavit that he attended the Chicagoland Sport Fishing Travel & Outdoor Show (Outdoor Show) in Illinois, where he spoke to a Lodge employee, Cole Smith. Lodge representatives attended that show in 1992, 1993 and 1994, and perhaps in other years. Smith gave Edward literature about the Lodge and a card with a Texas address as Smith's home office. Smith said Edward could arrange a trip to the Lodge through Frontiers. Edward later contacted Frontiers, and after Frontiers sent him information, he arranged the trip through Frontiers.

Smith also submitted an affidavit in which he swore that he "was not authorized to sign for anything" on behalf of Heidt or the Lodge.

The trial court, after reviewing the documents and hearing argument, granted defendants' motions to dismiss. For this appeal,

"[P]laintiffs *** carry the burden of establishing a prima facie basis upon which jurisdiction over the defendant can be exercised. [Citation.] In considering a challenge to personal jurisdiction, conflicts between a defendant's affidavits and the plaintiff's pleadings and affidavits will be resolved in favor of the plaintiff for purposes of determining whether a prima facie case for in personam jurisdiction has been made. [Citations.] Since the trial court did not hold an evidentiary hearing on the defendant's motion attacking its jurisdiction, our review of the issue is de novo." International Business Machines Corp. v. Martin Property & Casualty Insurance Agency, Inc., 281 Ill. App. 3d 854, 857-58, 666 N.E.2d 866 (1996).

Defendants suggest that, following Finnegan v. Les Pourvoiries Fortier, Inc., 205 Ill. App. 3d 17, 562 N.E.2d 989 (1990), we should reject "a long line of Illinois cases" (Finnegan, 205 Ill. App. 3d at 24) which apply the standard of review restated in IBM. In Finnegan the court held that the trial court should weigh the documentary evidence presented on the issue of jurisdiction, resolving conflicts as it finds most credible, and this court should reverse the trial court's determination only if it is contrary to the manifest weight of the evidence.

The reasoning of Finnegan would apply if the trial court heard courtroom testimony on jurisdictional issues. As the court implicitly held in IBM, when the trial court hears no testimony, and determines jurisdiction solely on the basis of documentary evidence, the trial court is not in a better position than this court to assess credibility or weigh the evidence. Therefore we should review the evidence de novo. See Comedy Cottage, Inc. v. Berk, 145 Ill. App. 3d 355, 359, 495 N.E.2d 1006 (1986); Delasky v. Village of Hinsdale, 109 Ill. App. 3d 976, 980, 441 N.E.2d 367 (1982).

When a plaintiff has stated a prima facie case for relief, the court should not dismiss on the pleadings, and the court on a motion to so dismiss must construe all well-pleaded facts in favor of the plaintiff. Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 542, 582 N.E.2d 108 (1991). Similarly, where a plaintiff has pleaded sufficient facts supporting personal jurisdiction, the court must not dismiss the case on the pleadings for want of jurisdiction. IBM, 281 Ill. App. 3d at 857-58. If the plaintiff's documentary evidence, including affidavits and depositions, contradicts the defendant's evidence on issues of fact that will determine whether the court has personal jurisdiction, the trial court must hear the testimony, evaluate its credibility, and resolve any material conflicts in the evidence. 735 ILCS 5/2-301(b) (West 1994). After such a hearing this court should defer to the trial court's findings, applying the standard enunciated in Finnegan. But this court need not defer to any jurisdictional determination entered without such testimony, and in the absence of such evidence the plaintiff must establish only a prima facie basis for jurisdiction, unless the defendant presents uncontradicted evidence sufficient to defeat jurisdiction. IBM, 281 Ill. App. 3d at 858.

As the court in Finnegan, 205 Ill. App. 3d at 24-25, used an erroneous standard of review, we decline to follow the part of Finnegan inconsistent with both this opinion and the long line of Illinois cases partially cited in Finnegan. E.g., Kutner v. DeMassa, 96 Ill. App. 3d 243, 247-48, 421 N.E.2d 231 (1981).

Plaintiffs here argue that the court has jurisdiction over the defendants both pursuant to our long-arm statute, section 2-209 of the Civil Practice Law (735 ILCS 5/2-209 (West 1994)), and because they were doing ...

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