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Patricia A. Wiggen v. Anna Tewell Wiggen

July 27, 2011

PATRICIA A. WIGGEN,
PLAINTIFF-APPELLANT,
v.
ANNA TEWELL WIGGEN,
DEFENDANT



Appeal from the Circuit Court of Du Page County. No. 09-AR-2583. (Brian Roughton and Kayla Roughton, Individually and d/b/a Roughton Galleries, ) Honorable Inc., and Roughton Galleries, Inc., a Texas ) Bruce R. Kelsey, Corporation, Defendants-Appellees). ) Judge, Presiding.

The opinion of the court was delivered by: Justice Jorgensen

2011 IL App (2d) 100982

PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Bowman concurred in the judgment and opinion.

OPINION

¶ 1 The plaintiff, Patricia A. Wiggen, a resident of Illinois, appeals the trial court's order dismissing her complaint alleging conversion, fraud, and replevin against defendants Brian and Kayla Roughton and Roughton Galleries, Inc. (collectively, the Roughtons), residents of Texas, for lack of personal jurisdiction. Another defendant, Anna Tewell Wiggen, an Illinois resident, remains as a party to the action. We affirm.

¶ 2 I. BACKGROUND

¶ 3 This appeal arises out of a transaction for the July 2006 sale of a painting from Anna to the Roughtons, who own an art gallery in Texas. At the time of the sale, Anna was married to Patricia's brother, but they were divorced in October 2008. In August 2009, Patricia demanded the return of the painting and filed suit, alleging that she was the actual owner of the painting and that it was sold without her consent. The Roughtons were added as parties in January 2010.

¶ 4 In April 2010, the Roughtons moved to dismiss, arguing that the court lacked personal jurisdiction over them. Affidavits attached to the motion showed that, in December 2005, Anna called the gallery and spoke to Brian. Anna told him that she was interested in selling a painting on behalf of her family and inquired whether the Roughtons would be interested in purchasing it. Over the course of the next six months, Brian spoke with Anna on the phone and exchanged e-mail correspondence with her about the painting. Kayla was not involved in the transaction and never spoke to Anna or had any other form of contact with her.

¶ 5 On July 12, 2006, Anna called Brian, offering to sell the painting to the Roughtons for $40,000, and Brian accepted. That day, he sent to Anna a check, along with a box in which to ship the painting. The box and check were shipped from Texas and sent to Illinois. On September 14, 2006, the Roughtons sold the painting.

¶ 6 Brian remained in Texas during the entire transaction. He never traveled to Illinois, and Anna never went to Texas. The Roughtons have no physical business presence in Illinois and they never directed any advertisements or solicitations to Anna. They do not advertise or otherwise solicit business in Illinois, other than by maintaining a website and advertising in several national art magazines, trade journals, and websites.

¶ 7 On May 19, 2010, a hearing was held, and Patricia asked the court to take judicial notice of e-mails to show that Brian initiated the sale. Patricia argued that, because the contract was performed in Illinois, the court had personal jurisdiction over the Roughtons. The court did not take notice of the e-mails, because they were not attached to any filed court papers and had not been properly put before the court, but the court agreed that, on the face of the materials before it, the contract was completed in Illinois. Based on that determination, the court found that, "at this point in time on the surface," there was sufficient contact with Illinois to deny the motion to dismiss. The court stated its assumption that, if other facts came out later, counsel would make an appropriate motion.

¶ 8 On June 18, 2010, the Roughtons filed a motion to reconsider, arguing that the court erred in its application of the law. The Roughtons also noted that the court had referenced the possibility of additional facts arising and that material from Anna was not considered at the hearing on the motion to dismiss.

¶ 9 The Roughtons attached to the motion an affidavit from Anna, stating that she initiated contact with the Roughtons about selling the painting. Anna averred that, over the course of six months, she communicated with Brian by e-mail and telephone and made various representations about the condition of the painting. Through these discussions, Anna understood that any purchase of the painting was contingent upon its receipt and acceptance to ensure that it did not exhibit too much "cracklier." On July 11, 2006, Anna called Brian and asked whether he agreed to purchase the painting. Brian accepted, contingent upon his inspection of the cracklier. Brian sent Anna a check for $40,000 and a box for shipping of the painting. Anna sent the painting and held the check until Brian inspected the painting and approved of its condition. Anna averred that her only contact with the Roughtons was at her initiation or request and that she did not expect that the Roughtons would have to come to the Illinois courts in regard to any dispute over the painting.

ΒΆ 10 Also attached to the motion to reconsider were e-mails sent between Anna and Brian showing that Brian expressed concern about the cracklier and told Anna that he would send a box for shipping along with a check. Then, he would inspect the painting upon receipt and either he would ship it back the next day if it was not acceptable, or, if it ...


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