Forrester v. Seven Seventeen HB St. Louis Redevelopment

Case Date: 12/16/2002
Court: 4th District Appellate
Docket No: 4-02-0278 Rel

NO. 4-02-0278

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT


GARY FORRESTER, 
                         Plaintiff-Appellant,
                         v.
SEVEN SEVENTEEN HB ST. LOUIS
REDEVELOPMENT CORPORATION, d/b/a
"Adam's Mark, the Hotel of St. Louis,"
                         Defendant-Appellee.
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Appeal from
Circuit Court of
Champaign County
No. 01SC2728

Honorable
John R. Kennedy,
Judge Presiding.



JUSTICE COOK delivered the opinion of the court:

Plaintiff, Gary Forrester, appeals pro se the January22, 2002, order of the Champaign County circuit court quashingservice on defendant and dismissing plaintiff's small-claimscomplaint. We affirm.

I. BACKGROUND

According to plaintiff's small-claims complaint,plaintiff spent the night of October 6, 2001, at defendant hotelin downtown St. Louis. Plaintiff made the reservation for hisstay over the phone by calling defendant from plaintiff's home inIllinois. Plaintiff guaranteed his reservation by giving defendant a credit card number.

On the night of October 6, 2001, plaintiff's car wasdamaged while it was parked in defendant's parking facility inSt. Louis, Missouri. Defendant refused to accept liability orpay for any of the damage. Plaintiff filed suit to recover forthe damages to his car in small-claims court in the ChampaignCounty, Illinois, circuit court.

On November 16, 2001, defendant responded by filing anobjection to jurisdiction and motion to quash service. Attachedwas an affidavit of Timothy Tata, the general manager of thehotel. This affidavit stated that defendant was a Missouricorporation with its principal place of business located atFourth and Chestnut Streets, in the City of St. Louis, Missouri. Defendant owns no property or real estate in Illinois, does nottransact business in Illinois, has no registered agent in Illinois, has no Illinois telephone number, and has never soldinsurance in Illinois.

On November 19, 2001, plaintiff filed an affidavit inresponse to defendant's objection to jurisdiction and motion toquash service. This affidavit generally restated the allegationsin plaintiff's small-claims complaint: plaintiff called defendant to make a reservation from his home in Champaign, Illinois,and plaintiff provided defendant with his credit card number. Plaintiff's affidavit further concluded that he and defendant hadentered into an Illinois contract.

On November 29, 2001, defendant filed a supplementalaffidavit. This affidavit stated that defendant has a cancellation policy and that it informs all persons making reservationsof this policy. A person who gives a credit card number whenmaking a reservation can cancel the reservation without consequence at any time prior to 4 p.m. on the date of arrival. Charges are made on the guest's credit card pursuant to thetelephone authorization only if the guest fails to appear on thearrival date and has not cancelled his or her reservation priorto 4 p.m. on the arrival date.

On December 3, 2001, plaintiff filed a supplementalaffidavit. This affidavit concluded that, to plaintiff's knowledge and belief, defendant has transacted business in Illinoiswithin the meaning of section 2-209 of the Illinois Code of CivilProcedure (long-arm statute) (735 ILCS 5/2-209 (West 2000)). Defendant also made a contract that was substantially connectedwith Illinois and was wholly performed on plaintiff's side inIllinois and performed in substantial part on defendant's side inIllinois within the meaning of the Illinois long-arm statute. The affidavit further stated plaintiff got defendant's toll-freetelephone number from a website on the Internet; that reservations at defendant hotel can be made on the Internet; there is an"Adam's Mark Hotel" in Chicago, Illinois; and defendant advertises in Illinois.

On December 17, 2001, defendant filed a motion tostrike plaintiff's supplemental affidavit in part. The trialcourt denied the motion to strike.

On January 22, 2002, the trial court ultimately granteddefendant's motion to quash service. Plaintiff filed a motion toreconsider, which was denied. In March 2002, plaintiff thenfiled a motion to vacate the order denying the motion to reconsider; and in April 2002, the court denied it. Plaintiff appeals.

II. ANALYSIS

This case presents the question of whether the Illinoiscourts may exercise personal jurisdiction over defendant hotel, aMissouri corporation. The trial court did not hold an evidentiary hearing, but decided the issue on the pleadings; therefore,our review is de novo. Stein v. Rio Parismina Lodge, 296 Ill.App. 3d 520, 523, 695 N.E.2d 518, 520-21 (1998).

Plaintiff argues that Illinois courts can exercisepersonal jurisdiction over defendant pursuant to the long-armstatute, specifically sections 2-209(a), (b), and (c) of the Codeof Civil Procedure. 735 ILCS 5/2-209(a), (b), (c) (West 2000). Courts apply a two-step analysis when a plaintiff argues forjurisdiction under the long-arm statute: (1) determine whetherjurisdiction is proper under the statute; and if so, (2) determine if jurisdiction is permissible under the federal constitution's due process clause. Stein, 296 Ill. App. 3d at 524, 695N.E.2d at 521. The analysis may begin with either step: ifjurisdiction is not found under the long-arm statute, then thereis no need to determine whether jurisdiction is constitutionallypermissible; and if exercising jurisdiction would offend dueprocess, then there is no need to address the application of thelong-arm statute. Stein, 296 Ill. App. 3d at 524, 695 N.E.2d at521.

The long-arm statute provides in pertinent part:

"(a) Any person, whether or not a citizen or resident of this [s]tate, who in person or through an agent does any of the actshereinafter enumerated, thereby submits such person, and[,] if an individual, his or her personal representative, to thejurisdiction of the courts of this [s]tate as to any cause of action arising from the doing ofsuch acts:

(1) [t]he transaction of any business within this [s]tate;

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(7) [t]he making or performance of any contract or promise substantially connected with this State.

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(b) A court may exercise jurisdiction in any action arising within or without this State against any person who:

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(4) [i]s a natural person or corporation doing business within this State.

(c) A court may also exercise jurisdiction on any other basis now or hereafter permitted by the IllinoisConstitution and the Constitution of the United States." 735 ILCS 5/2-209 (West 2000).

Defendant also argues that the trial court erred indenying his motion to reconsider. We address each argument inturn.

A. Specific Jurisdiction under Section 2-209(a)

Section 2-209(a) of the long-arm statute gives Illinoiscourts personal jurisdiction over an out-of-state defendant whenthat defendant commits one of the acts enumerated in the statute. This jurisdiction is specific and limited to a cause of actionthat arises directly from the commission of one of these enumerated acts. 735 ILCS 5/2-209(a) (West 2000). Plaintiff claimsthat defendant has committed the following acts enumerated insection 2-209(a): "[t]he transaction of any business within this[s]tate" (735 ILCS 5/2-209(a)(1) (West 2000)), and "[t]he makingor performance of any contract or promise substantially connectedwith this [s]tate" (735 ILCS 5/2-209(a)(7) (West 2000)). Specifically, plaintiff argues that when he called defendant to make areservation for a hotel room, defendant was transacting businessin Illinois (section 2-209(a)(1)), and defendant was making orperforming a contract substantially connected to Illinois (section 2-209(a)(7)). Plaintiff further argues that his cause ofaction arises directly out of the alleged Illinois contractbetween him and defendant under the doctrine of infra hospitium. Infra hospitium is a common-law doctrine that imposes strictliability on innkeepers. See Plant v. Howard Johnson's MotorLodge, 500 N.E.2d 1271 (Ind. App. 1986). Therefore, plaintiffargues, because defendant committed these enumerated acts inIllinois, and plaintiff's cause of action arises directly fromdefendant's actions in Illinois, the Champaign County circuitcourt can exercise personal jurisdiction over defendant in thiscase.

We first address plaintiff's argument that defendanttransacted business within this state when plaintiff called tomake a reservation (section 2-209(a)(1)). According to plaintiff, this created an Illinois contract. Assuming there was acontract, and it was executed in Illinois, "the mere execution ofa contract in Illinois is not by itself a sufficient transactionof business to trigger the application of the long-arm statute." Khan v. Van Remmen, Inc., 325 Ill. App. 3d 49, 58, 756 N.E.2d902, 911 (2001). Instead, the courts consider who initiated thetransaction, where the parties entered the contract, and wheredefendant would have performed the contract. Campbell v. Mills,262 Ill. App. 3d 624, 628, 634 N.E.2d 41, 44 (1994). "Therelevant inquiry is not whether the plaintiff partially performedthe contract in Illinois, but whether the defendant performed anypart of the contract in Illinois." (Emphases in original.) Khan, 325 Ill. App. 3d at 58, 756 N.E.2d at 911. In this case,plaintiff initiated the transaction by calling defendant hotel tomake a reservation, and defendant's performance of the contract,which was to provide plaintiff with lodging, was to occur exclusively in Missouri. As defendant was not required to do anythingin Illinois, there is no jurisdiction on this basis.

We next address plaintiff's argument that defendantmade a contract substantially connected with Illinois whenplaintiff called defendant hotel to make a reservation (section2-209(a)(7)). Assuming a contract was made over the phone, thecontract was not substantially connected with Illinois. This wasan alleged contract to provide lodging in St. Louis, Missouri. Plaintiff chose to travel to Missouri. Defendant was not required to do anything at all in Illinois. Other than the factthat plaintiff was from Illinois, everything about this contractconnected to Missouri. "The mere making of a contract with aforum resident does not constitute a consent to jurisdiction." Buxton v. Wyland Galleries Hawaii, 275 Ill. App. 3d 980, 983, 657N.E.2d 708, 710 (1995), citing Burger King Corp. v. Rudzewicz,471 U.S. 462, 478-79, 85 L. Ed. 2d 528, 545, 105 S. Ct. 2174,2185 (1985). There is no jurisdiction on this basis.

B. General Jurisdiction Under Section 2-209(b)(4)

Section 2-209(b)(4) of the long-arm statute givesIllinois courts personal jurisdiction over an out-of-statedefendant who is "doing business within this [s]tate." Thisjurisdiction is general and may be exercised in any cause ofaction arising anywhere against the defendant. 735 ILCS 5/2-209(b)(4) (West 2000).

We initially note that a hotel is in the business ofproviding lodging. Defendant hotel, located in St. Louis,Missouri, has never provided lodging in Illinois. Nor hasplaintiff alleged that defendant sent any goods into Illinois. In short, we do not believe that defendant hotel is "doingbusiness" in Illinois. However, plaintiff argues that defendantis doing business in Illinois because there is a website throughwhich people can make reservations with defendant; there is anAdam's Mark hotel in Chicago, Illinois; there is an Illinoistoll-free telephone number, Illinois advertising in the "yellowpages," and other Illinois advertising; and because of thecontract with plaintiff.

The allegations about the Adam's Mark hotel in Chicago,the website, and the Illinois advertising appear in plaintiff'ssupplemental affidavit. Defendant did not file any affidavitsrebutting plaintiff's allegations. Therefore, plaintiff argues,we must accept his averments as true. See Professional GroupTravel, Ltd. v. Professional Seminar Consultants, Inc., 136 Ill.App. 3d 1084, 1089, 483 N.E.2d 1291, 1295 (1985) (where well-alleged facts in an affidavit are not contradicted by acounteraffidavit, they must be taken as true). "However, we donot take as true affidavits or portions thereof that do not meetthe requirements of Supreme Court Rule 191(a) (145 Ill. 2d R.191(a))." Khan, 325 Ill. App. 3d at 56, 756 N.E.2d at 909.

Rule 191(a) provides in pertinent part:

"[A]ffidavits submitted in connection with a special appearance to contest jurisdiction over the person, as provided by section 2-301(b) of the Code of Civil Procedure, shall be made on the personal knowledge of theaffiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competentlythereto." 145 Ill. 2d R. 191(a) (as worded effective until July 1, 2002).

Plaintiff's supplemental affidavit did not comply withRule 191(a). The attached papers were not sworn or certified,the affidavit primarily consisted of legal conclusions withoutsupporting facts, and the affidavit did not affirmatively showthat plaintiff could testify as to its contents. Plaintiffsuggests that the shortcomings should be overlooked because thetrial judge did not tell the parties to follow the rules. Plaintiff also points out that the trial court denied defendant'smotion to strike plaintiff's supplemental affidavit.

We are not persuaded by these justifications. Plaintiff provides no authority for his suggestion that Rule 191(a)did not have to be followed in this case. We therefore are notobligated to consider plaintiff's averments about defendant hoteldoing business in Illinois by operating a website and by theexistence of an "Adam's Mark Hotel" in Chicago, Illinois. However, even if the allegations in plaintiff's supplementalaffidavit demonstrated that defendant was doing business inIllinois, we would still decline to exercise jurisdiction overdefendant, because, as discussed below, such exercise wouldoffend constitutional due process protections.

C. Jurisdiction to the Extent Permitted by the Illinois
and Federal Constitutions

Section 2-209(c) allows a court to exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States. 735ILCS 5/2-209(c) (West 2000). Federal constitutional due processprotection requires that a nonresident defendant have certainminimum contacts with the forum state such that maintenance ofthe suit there does not offend "'traditional notions of fair playand substantial justice.'" International Shoe Co. v. Washington,326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158 (1945),quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 283,61 S. Ct. 339, 343 (1940). The following criteria are looked atin determining whether due process will be satisfied: (1)whether the nonresident defendant had "minimum contacts" with theforum state such that it had "fair warning" that it might berequired to defend itself there; (2) whether the action arose outof or relates to the defendant's contacts with the forum; and (3)whether it is reasonable to require defendant to litigate in theforum state. Burger King Corp., 471 U.S. at 471-78, 85 L. Ed. 2dat 540-44, 105 S. Ct. at 2181-85. The Supreme Court of Illinoishas also stated that under the Illinois Constitution's dueprocess guarantee jurisdiction may only be exercised if it is:

"fair, just, and reasonable to require a nonresident defendant to defend an action in Illinois, considering the quality and nature of the defendant's acts which occur in Illinois or which affect interests located in Illinois." Rollins v. Ellwood, 141 Ill. 2d 244, 275, 565 N.E.2d 1302, 1316 (1990).

In Pilipauskas v. Yakel, 258 Ill. App. 3d 47, 629N.E.2d 733 (1994), the defendants, owners of a lodge in Michigan,distributed brochures in Illinois through a marketing association, made approximately 100 calls to Illinois each year, almosthalf their guests came from Illinois, and when plaintiffs calleddefendant, defendant mailed them promotional materials. Thecourt found that exercising jurisdiction over defendants wouldoffend due process. Pilipauskas, 258 Ill. App. 3d at 59, 629N.E.2d at 741.

In Excel Energy Co. v. Pittman, 239 Ill. App. 3d 160,606 N.E.2d 637 (1992), the plaintiffs found an advertisement forequipment sold by defendant in a national magazine, contacteddefendant about buying the equipment, and then traveled toOklahoma to purchase the equipment. The court found that exercising jurisdiction over defendants would offend due process. Excel Energy, 239 Ill. App. 3d at 164, 606 N.E.2d at 640.

In this case, defendant advertises in Illinois, peoplefrom Illinois contact defendant, and people from Illinois chooseto travel to Missouri to utilize defendant's services. Defendantin this case has not done anything more than defendants inPilipauskas, Excel Energy, or any of a number of other caseswhere the courts have found that Illinois could not exercisejurisdiction over out-of-state hotels or lodges just because theyadvertised in Illinois and had clients from Illinois. See, e.g.,Radosta v. Devil's Head Ski Lodge, 172 Ill. App. 3d 289, 526N.E.2d 561 (1988); Kadala v. Cunard Lines, Ltd., 226 Ill. App. 3d302, 589 N.E.2d 802 (1992); Stein, 296 Ill. App. 3d 520, 695N.E.2d 518.

All that defendant has done in this case is to advertise in Illinois and make a contract with an Illinois resident. Plaintiff chose to contact defendant, and plaintiff chose totravel to Missouri. Considering the quality and nature ofdefendant's acts that occur in Illinois, which are merely advertising, and that defendant's business of providing lodging inMissouri does not affect any interests in Illinois, we findexercising jurisdiction over defendant would be not fair, just,or reasonable.

We finally note that plaintiff has tried very hard toturn this into an "Internet" case. It is alleged that a websiteexists that allows persons to make reservations at defendanthotel over the Internet. Plaintiff argues that "defendant's[I]nternet activities alone *** are a sufficient basis forgeneral jurisdiction." We disagree. Via its website, defendanthotel allegedly advertises its services and provides a means forcustomers to contact defendant to make reservations. We do notsee how this is qualitatively any different than an ad in anyother medium that provides a phone number or other means tocontact defendant hotel to make reservations. See, e.g., Bell v.Imperial Palace Hotel/Casino, Inc., 200 F. Supp. 2d 1082, 1088(E.D. Mo. 2001) (a website that allows persons to make reservations at a hotel over the Internet "is not unlike a toll-freereservations hotline").

D. Motion to Reconsider

Plaintiff's argument that the trial court erred indenying the motion to reconsider and motion to vacate the orderdenying the motion to reconsider is based on the premise thatplaintiff had made a prima facie showing for exercising jurisdiction over defendant. Defendant had not filed any counteraffidavits, and therefore, according to plaintiff, the trial courtshould have either denied the motion to quash or conducted anevidentiary hearing. However, as we held above, we do notbelieve that plaintiff did make a prima facie showing for exercising jurisdiction over defendant, and even if plaintiff did,exercising jurisdiction over defendant would offend constitutional due process protections. We therefore affirm.

III. CONCLUSION

We affirm the trial court's judgment.

Affirmed.

KNECHT and STEIGMANN, JJ., concur.