Dal Ponte v. Northern Manitoba Native Lodges, Inc.

581 N.E.2d 329, 220 Ill. App. 3d 878, 163 Ill. Dec. 378, 1991 Ill. App. LEXIS 1762
CourtAppellate Court of Illinois
DecidedOctober 11, 1991
Docket1—89—1186, 1—89—1196 cons.
StatusPublished
Cited by12 cases

This text of 581 N.E.2d 329 (Dal Ponte v. Northern Manitoba Native Lodges, 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
Dal Ponte v. Northern Manitoba Native Lodges, Inc., 581 N.E.2d 329, 220 Ill. App. 3d 878, 163 Ill. Dec. 378, 1991 Ill. App. LEXIS 1762 (Ill. Ct. App. 1991).

Opinion

PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Defendants, Fishing Lake Lodge (Lodge) and Nelson Keeper, appeal under Supreme Court Rule 306(a)(1)(iii) (134 Ill. 2d R. 306(a)(1)(iii)) from an order denying their motion to dismiss for lack of personal jurisdiction. Plaintiffs, the Dal Ponte family, appeal under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) from an order dismissing defendant, Northern Manitoba Native Lodges, Inc. (Northern Manitoba), for lack of personal jurisdiction. The appeals were subsequently consolidated. We consider: (1) whether Northern Manitoba’s participation in trade shows in Illinois was sufficient to find that the Lodge, Keeper, and Northern Manitoba were doing business in Illinois; and (2) whether plaintiffs’ cause of action arose from Northern Manitoba’s participation in trade shows in Illinois and subjected the Lodge, Keeper, and Northern Manitoba to jurisdiction under the long-arm statute. We affirm in part, reverse in part, and remand.

Plaintiffs filed a wrongful death action seeking damages for the death of John Charles Dal Ponte (Dal Ponte) against the Lodge, Keeper, and Northern Manitoba. In May of 1987, Dal Ponte drowned in Manitoba, Canada, when the boat he was in capsized while he and a group of other fishermen were on their way to the Lodge. Plaintiffs alleged that the Lodge and Keeper owned and operated the boat involved in the accident. They also alleged that Northern Manitoba entered into a contract on the Lodge’s behalf, during a sport fishing show in Illinois, to provide safe transportation for the fishing trip.

The Lodge, Keeper, and Northern Manitoba each filed a special and limited appearance and moved to dismiss the complaint for lack of personal jurisdiction. The following facts are based on the depositions and affidavits presented for the motions to dismiss.

The Lodge, located and incorporated in Manitoba, Canada, provided lodging and fishing guide services during the four-month fishing season. The Lodge was not registered to do business in Illinois and did not have an office, employees, or agents in Illinois. Keeper, who owned the Lodge, was a Canadian resident.

The Lodge accepted reservations directly or through its membership in Northern Manitoba. In 1987, the year the accident occurred, 15% to 25% of the Lodge’s reservations were made through Northern Manitoba.

Northern Manitoba was a Canadian corporation that handled the travel arrangements for guests at its member fishing lodges for a commission. Its office was located in Winnepeg, Canada. Its shareholders and officers were owners of various lodges located in Manitoba, Canada, where they were residents. Keeper was an officer. The purpose of Northern Manitoba was to promote, market, and expedite travel arrangements for its member lodges. Northern Manitoba was not registered to do business in Illinois, and it did not have employees or agents permanently located in Illinois. However, in addition to operating out of its office in Canada, it rented a booth at an annual trade show in Illinois since 1981. During the shows, Northern Manitoba distributed brochures and travel information and accepted reservations and deposits for member lodges. In 1987, it participated in one trade show in Illinois, for approximately 12 days, and may have also participated in one other show in Illinois. Northern Manitoba did not have a record of the number of reservations it made during the show. Dal Ponte’s fishing trip at the Lodge was not reserved through Northern Manitoba.

In plaintiffs’ response to the motions to dismiss, they relied on Northern Manitoba’s business records, which are not in the record on appeal. Plaintiffs stated that, without reference to year, 25.7% to 38.5% of Northern Manitoba’s reservations were made by “persons from Illinois.” Also, 17% to 23.1% of the Lodge’s reservations were made by “persons from Illinois.”

Dal Ponte’s fishing trip was originally reserved in January of 1987 at another lodge, Bolton Lake Lodge, through Northern Manitoba while Robert Carlson, a member of Dal Ponte’s fishing group, was attending a sport fishing show in Illinois. However, Northern Manitoba subsequently cancelled the reservation and returned the deposit because Bolton Lake Lodge did not open that year.

When the trip was cancelled, Joe Gurosh, another member of Dal Ponte’s fishing group, telephoned the Lodge in Canada and made a reservation for the group. He sent a deposit check to the Lodge in Canada. Gurosh testified at his deposition that Carlson told him that when the reservation was cancelled Northern Manitoba suggested the Lodge as an alternative.

In ruling on the Lodge and Keeper’s motion to dismiss, the trial judge found that Northern Manitoba was an agent for the Lodge and Keeper and its participation in trade shows amounted to doing business in Illinois. As a result, the Lodge and Keeper were subject to personal jurisdiction in Illinois and their motion to dismiss was denied. They filed a petition with this court for leave to appeal under Rule 306(a)(l)(iii) which was granted.

Subsequently, the trial judge found, for reasons not in the record, that Northern Manitoba was not subject to jurisdiction in Illinois and granted its motion to dismiss. A finding was entered pursuant to Rule 304(a) that the order was final and there was no just reason to delay enforcement or appeal and plaintiffs appealed.

Opinion

A nonresident corporation is subject to jurisdiction in Illinois under either the “doing business” rule or the long-arm statute (Ill. Rev. Stat. 1989, ch. 110, par. 2—209). (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847.) The burden of proving that a nonresident defendant is subject to jurisdiction is on the party seeking to impose jurisdiction. Konicki v. Wirta (1988), 169 Ill. App. 3d 21, 523 N.E.2d 160.

Plaintiffs argue that jurisdiction is proper over the Lodge, Keeper, and Northern Manitoba under the doing business rule. Plaintiffs assert that the Lodge and Keeper authorized Northern Manitoba to enter into contracts in Illinois on their behalf and that Northern Manitoba’s activities in Illinois were sufficient to find that they were doing business in Illinois.

Under the doing business rule, a nonresident corporation is considered to have consented to jurisdiction if it is doing business in the State. (Cook, 87 Ill. 2d 190, 429 N.E.2d 847.) There is no test to make the determination of what activity amounts to doing business; however, the character and extent of the business must be sufficient to justify an inference that the nonresident corporation has submitted to the jurisdiction and laws of the State. (Cook, 87 Ill. 2d 190, 429 N.E.2d 847.) There must be regular activity and “ ‘not occasionally or casually, but with a fair measure of perma nence and continuity.’ ” (Cook, 87 Ill. 2d at 203, 429 N.E.2d at 853, quoting Tauza v. Susquehanna Coal Co. (1917), 220 N.Y. 259, 267, 115 N.E.

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Bluebook (online)
581 N.E.2d 329, 220 Ill. App. 3d 878, 163 Ill. Dec. 378, 1991 Ill. App. LEXIS 1762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dal-ponte-v-northern-manitoba-native-lodges-inc-illappct-1991.