Colnar v. Baldknobbers, Inc.

437 N.E.2d 718, 107 Ill. App. 3d 234, 63 Ill. Dec. 69, 1982 Ill. App. LEXIS 1980
CourtAppellate Court of Illinois
DecidedJune 1, 1982
Docket81-1166
StatusPublished
Cited by17 cases

This text of 437 N.E.2d 718 (Colnar v. Baldknobbers, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colnar v. Baldknobbers, Inc., 437 N.E.2d 718, 107 Ill. App. 3d 234, 63 Ill. Dec. 69, 1982 Ill. App. LEXIS 1980 (Ill. Ct. App. 1982).

Opinion

JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Rita Colnar, an Illinois resident, sued defendant, The Baldknobbers, Inc., a Missouri corporation, seeking recovery for injuries allegedly sustained on the premises of defendant’s theatre in Branson, Missouri. The trial court dismissed the complaint and quashed service of summons for lack of jurisdiction over defendant. Plaintiff appeals, raising as issues whether the trial court: erred in its consideration of plaintiff’s affidavit; used the correct standard in weighing the affidavits before it; and erred in quashing service of summons for lack of jurisdiction over defendant.

Plaintiff complained that on October 25,1977, she was injured when she fell upon rocks, debris, and other obstructions while walking on defendant’s premises in Branson, Missouri. Defendant, served in Missouri, filed a special appearance and moved to quash for want of jurisdiction. Attached to the motion was an affidavit by Lyle Mabe, president of defendant corporation. Following discovery limited to the issue of jurisdiction, plaintiff responded to defendant’s motion and attached the depositions of Lyle Mabe and Max Tate, the latter being defendant’s stage manager. In response to plaintiff’s request, defendant produced contracts between defendant and Illinois organizations relating to performances apparently consummated in 1979 and 1980. The affidavits, depositions and contracts reveal the following facts.

Defendant is engaged in the business of producing and performing country and hillbilly music, and comedy shows comprised of local talent. Defendant owns no real or personal property and maintains no offices in Illinois. It is not registered to do business in Illinois. Tourists visit Branson to listen to country and folk music, of which defendant is one local attraction. Visitors sometimes arrange for defendant to perform in their hometowns, some of which are out-of-State. Defendant visits Illinois two to five times a year to perform a 2-hour show, usually at fraternal organizations and schools. Contracts to perform are sent to the organizations in Illinois, which return them signed to Missouri. Posters and advertising materials are sent to Illinois only upon the request of the contracting organization and only after a contract is signed. During the performance, souvenirs are sold, such as books and records, which are produced locally. Defendant advertises locally only and, although it has contributed to the Ozark Marketing Council in recent years, whose purpose it is to attract tourists to Branson, there is no evidence such contributions were made the year plaintiff was injured. Formerly, defendant employed a booking agent, Bill Insley; however, the extent of his duties is unclear from deposition testimony and Insley himself was not deposed.

Also attached to plaintiff’s response was plaintiff’s affidavit, alleging that, “while still located in Illinois [she] heard of the Baldknobbers performances and had read literature describing their performances * * *. The things [she] heard about them and the literature is what attracted [her] to see them in Branson, Missouri, on the date of the accident.”

Plaintiff initially argues that the trial court erred in finding her affidavit lacked credibility and was insufficient under Supreme Court Rule 191 (73 Ill. 2d R. 191). During the hearing on defendant’s motion, the trial court stated in passing, “By the way this affidavit is dated December 23, 1980, approximately six months after the depositions of Tate and Mabe.” This was the only trial court reference to the date; it did not state that the affidavit lacked credibility because of its date. The trial court further observed that, as plaintiff never set forth in her affidavit from what source she had heard of the Baldknobbers’ performances, “[t]his does not really appear to be an affidavit that would truly comply with Supreme Court Rule 191 so far as setting forth all the facts that would be within the personal knowledge of the ° 0 * [affiant].” The affidavit was not stricken, however, for noncompliance with Rule 191.

Plaintiff next contends that the trial court incorrectly weighed the affidavits submitted by the parties. She alleges that all uncontroverted affidavit facts must be taken as true, citing Doolin v. K-S Telegage Co. (1979), 75 ni. App. 3d 25, 393 N.E.2d 556, which holds that facts alleged by plaintiff must be taken as true only if defendant’s affidavit fails to negate those facts. She avers that the trial court here disregarded uncontroverted facts alleged by plaintiff. As previously noted, plaintiff’s affidavit fails to set forth what literature she read, e.g., newspaper accounts of the performance, vis-a-vis promotional handbills distributed by defendant. Nor does she disclose the source of what she heard, which would have enabled the trial court to assess what jurisdictional activities, if any, were initiated, maintained or pursued by defendant. As it consisted of mere conclusions without supporting facts (see Amelco Electric Co. v. Arcole Midwest Corp. (1976), 40 Ill. App. 3d 118, 123-24, 351 N.E.2d 349), plaintiff’s affidavit gave little, if any, support to her position; the trial court gave it apt consideration.

Plaintiff maintains the circuit court of Cook County obtained personal jurisdiction over defendant under either the “doing business” doctrine or under sections 17(1) (a) and (3) of the Illinois “long-arm” statute (Ill. Rev. Stat. 1979, ch. 110, pars. 17(1)(a), 17(3)). (See Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847 (hereinafter “Cook Associates, Inc.”); Braband v. Beech Aircraft Corp. (1977), 51 Ill. App. 3d 296, 367 N.E.2d 118, affd (1978), 72 Ill. 2d 548.) Under either standard, due process requires that a State may assert in personam jurisdiction over a foreign corporation only where that corporation has maintained minimum contacts with the forum (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158), although the Illinois Supreme Court has recently reexamined the parameters of Illinois jurisdiction over nonresident defendants and concluded that “this due process standard represents only the outer limits beyond which a State may not go to acquire jurisdiction over nonresidents [and] * * * the boundaries or limits under our statute are not to be equated with the ‘minimum contacts’ test under the due process clause.” (Cook Associates, Inc., 87 Ill. 2d 190, 197.) We examine first plaintiff’s “doing business” contentions.

Plaintiff argues that reasonable inferences can be drawn from the evidence which demonstrate: defendant employed a promoter to develop business here; defendant distributed posters and sold souvenirs and records here; defendant distributed advertising posters here; and, according to deposition testimony, defendant earned only enough to cover salaries on the road so that it intended to promote business as it performed during its visits to Illinois.

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Bluebook (online)
437 N.E.2d 718, 107 Ill. App. 3d 234, 63 Ill. Dec. 69, 1982 Ill. App. LEXIS 1980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colnar-v-baldknobbers-inc-illappct-1982.