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Kerry No. 5, LLC v. Barbella Group

March 30, 2012

KERRY NO. 5, LLC,
PLAINTIFF-APPELLANT,
v.
BARBELLA GROUP, LLC,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County, County Department, Law Division. No. 09 L 12801 The Honorable Allen S. Goldberg, Judge Presiding.

The opinion of the court was delivered by: Justice Harris

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Cunningham and Connors concurred in the judgment and opinion.

OPINION

¶ 1 Here we are called upon to determine whether the circuit court erred in granting the motion of defendant, the Barbella Group, LLC, to dismiss based on lack of venue and the doctrine of forum non conveniens. Plaintiff, Kerry No. 5, LLC, raises the following issues on appeal: (1) whether venue was proper under section 2-101 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-101 (West 2008)); and (2) whether the circuit court abused its discretion in declining jurisdiction under the doctrine of forum non conveniens. We hold that venue is proper in Cook County, Illinois, based on the general venue provision of section 2-101 of the Code (735 ILCS 5/2-101 (West 2008)) because defendant is a nonresident of Illinois, and thus venue is proper in any county in Illinois. We hold that the circuit court did not abuse its discretion in granting defendant's motion to transfer venue based on the doctrine of forum non conveniens because the relevant private and public interest factors favor the State of Florida as the proper forum for this litigation.

¶ 2JURISDICTION

¶ 3 On August 3, 2010, the circuit court granted defendant's motion to dismiss. On September 1, 2010, plaintiff timely filed its notice of appeal. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶ 4 BACKGROUND

¶ 5 On October 28, 2009, plaintiff filed a one-count complaint alleging breach of contract against defendant. Plaintiff, in its complaint, alleged in April of 2009, it entered into an agreement with defendant whereby it "agreed to allow [defendant] to use certain logos, intellectual property, operating manuals and recipe manuals in connection with the operations of a restaurant." Plaintiff alleged that defendant agreed to pay it $150,000 under the agreement, but had only paid it $70,000. Plaintiff requested that a judgment be entered against defendant "in the amount of $70,000, plus interest and court costs" and an order entered requiring defendant "to return all interior and exterior signage, menus and menu covers."*fn1

¶ 6 Plaintiff attached the agreement, which was titled "Trademark Use Agreement," to its complaint. The agreement stated plaintiff was an Illinois limited liability company while defendant was a Florida limited liability company. The agreement stated plaintiff was the legal owner of the trademark "Pazzo's Cucina Italiana." The agreement contained four articles. The first article, in relevant part, stated that "No changes can be made to the color, font style, or description in the logo." The use of the logo was "only permitted at 1430 SE 17th Street, Fort Lauderdale, FL 33316." Article one also contained provisions stating plaintiff owned all signage, operating manuals, menus, and menu covers, which should be returned to plaintiff when no longer in use. Article two of the agreement addressed representations, warranties and covenants made by plaintiff. In relevant part, article two stated that plaintiff "is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Illinois and is qualified to transact business as a foreign limited liability company and is in good standing in the State of Illinois." Article three of the agreement addresses indemnification provisions.

¶ 7 Article four references a Florida liquor license between an undefined seller and buyer and, for the first time in the agreement, mentions a "KMBZ, LLC." Article four, in relevant part, states "the Seller is the sole owner of the '4 COP' Quota Florida Alcoholic Beverage License **** with the Florida Division of Alcoholic Beverages and Tobacco." Article four further states the license " is being used to operate [a] restaurant known as 'Pazzo's Cucina Italiana' located at 1430 S.E. 17th Street Causeway, Fort Lauderdale, Florida," and that "In the event that the liquor license is not transferred, KMBZ, LLC and/or Rocky Aiyash shall refund the Buyer the amount of $125,000 *** within 5 days after receiving written notice of the failure of the transfer of ownership at no fault of KMBZ, LLC." The agreement does not define who the "Seller" is nor does it identify "KMBZ, LLC."

¶ 8 As consideration, the agreement stated that defendant would pay plaintiff $150,000.

Rocky Aiyash signed the agreement on behalf of plaintiff, as "Manager/Individually." Maan Barazi signed on behalf of defendant and was characterized in the agreement as defendant's manager. KMBZ, LLC, was also a signatory to the agreement. Matthew T. Aiyash, who the agreement states was KMBZ, LLC's manager, signed on its behalf.

¶ 9 On January 5, 2010, plaintiff filed a proof of service, showing defendant's agent, Barazi Maan, was served in Broward County, Florida.

¶ 10 On January 8, 2010, defendant filed a motion to dismiss.*fn2 In its motion to dismiss, defendant alleges that it purchased a "pizza franchise" from plaintiff and that the restaurant that is the subject of the sale is located in Fort Lauderdale, Florida. Defendant alleged further that "the transaction or transactions all occurred in Florida," that it "has no domicile in Illinois, does not do business in Illinois, has no employees in Illinois and has never done business" in Illinois. Defendant alleges it is not a resident of Illinois and that Maan Barbazi, its agent, is also not a resident of Illinois.*fn3 Defendant alleges that under section 2-101 of the Code, the cause of action must be dismissed because it is not a resident of Cook County and no part of the transaction occurred in Cook County. 735 ILCS 5/2-101 (West 2008). Additionally, defendant asserted that under the doctrine of forum non conveniens, jurisdiction should be declined. Defendant attached to its motion an affidavit of its authorized agent, Maan Barazi, in which Barazi stated that the "dispute giving rise to this case arose from the sale of a restaurant/pizza franchise business located in Fort Lauderdale, Florida." In his affidavit, Barazi further stated that "the contract was entered into in Florida," that "the transaction occurred entirely in Florida," that defendant is a resident of Florida and "has no residence in *** Illinois," and that defendant "does no business in Illinois and has no offices, employees or any business relation in the State of Illinois."

¶ 11 In response to defendant's motion to dismiss, plaintiff argued that the dispute was a "simple case involving Defendant's failure to pay sums due under a trademark use agreement." Plaintiff contended that under section 2-101 of the Code (735 ILCS 5/2-101 (West 2008)), venue was proper in any county in Illinois because the only defendant in the case did not reside in Illinois. Plaintiff further argued that Cook County was not an inconvenient forum based on both private and public factors. In regard to the private factors, plaintiff argued the parties would be equally inconvenienced because it is a resident of Illinois and defendant resides in Florida. Plaintiff argued that "Defendant has offered no other facts to suggest that venue is substantially less convenient here than in Florida and there is no suggestion that any premises will have to be viewed." In regard to public factors considered in determining the proper forum, plaintiff responded that defendant did not present any evidence that public factors were in its favor and commented that "we see no need to do its work for it except to say that this is a simple case of failure to pay an agreed upon sum." Plaintiff also stressed that its choice of forum should be given deference. Specifically, because it is an Illinois limited liability company with its place of business at 311 South Wacker Drive in Chicago, Illinois, it has an interest in having its cause of action litigated in Cook County. As an exhibit, plaintiff attached to its response the affidavit of Rocky Aiyash, who stated that he had "personal knowledge of the matters contained herein" and that he was "a member and manager" of plaintiff. Aiyash further attested that plaintiff is an Illinois limited liability company that operates " ' Pazzo's Mediterranean Bar & Grill' at 311 South Wacker Drive, Chicago."

¶ 12 In reply, defendant maintained that Florida was the proper venue because the subject restaurant was in Florida, the contract was entered into in Florida, and the parties conducted business in Florida. Defendant argued that plaintiff's only support for its argument that Cook County was the proper forum was that it resided there. Defendant alleged plaintiff was "forum shopping to suit [its] individual interests." Further, defendant maintained that Cook County should not bear the expense of a trial for a controversy with a Florida restaurant and that it would be a great expense for it to defend the suit in Cook County. Defendant stressed that it had no connections to Illinois and that it did all of its business in Florida.

¶ 13 On August 3, 2010, the circuit court issued a memorandum opinion and order granting defendant's motion to dismiss for lack of venue and under the doctrine of forum non conveniens.*fn4

The circuit court found that Cook County was not the proper venue because defendant did not reside and did not do any business in Illinois. The circuit court found defendant did not conduct any usual or customary business in Illinois.

ΒΆ 14 The circuit court also found that the State of Florida is a more convenient forum than Cook County, Illinois, based on both private and public interests. The circuit court noted that either forum would be inconvenient to one of the parties, depending on which forum prevailed. Accordingly, the circuit court found that the factor addressing the convenience of the parties did not favor either party. Next, the circuit court found that because the restaurant, menus, logos and signage is located in Florida, this factor weighed "slightly" in defendant's favor. The circuit court noted that "while it might not be ...


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