D.S. America (East), Inc. v. Elmendorf Grafica, Inc.

654 N.E.2d 472, 211 Ill. Dec. 10, 274 Ill. App. 3d 643, 1995 Ill. App. LEXIS 576
CourtAppellate Court of Illinois
DecidedJuly 26, 1995
Docket1-93-2472
StatusPublished
Cited by12 cases

This text of 654 N.E.2d 472 (D.S. America (East), Inc. v. Elmendorf Grafica, 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
D.S. America (East), Inc. v. Elmendorf Grafica, Inc., 654 N.E.2d 472, 211 Ill. Dec. 10, 274 Ill. App. 3d 643, 1995 Ill. App. LEXIS 576 (Ill. Ct. App. 1995).

Opinion

PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiff D.S. America (East), Incorporated, d/b/a Screen (East), an Illinois corporation, filed a breach of contract action against defendant Elmendorf Grafica, Incorporated, a Puerto Rico corporation, seeking to recover an unpaid balance of $36,000. The trial court granted defendant’s motion to dismiss for want of personal jurisdiction.

On appeal plaintiff asserts, inter alia, that the nonresident corporate defendant is subject to personal jurisdiction in Illinois under the long-arm statute (735 ILCS 5/2 — 209 (West 1992)). We agree and reverse the dismissal order and remand this matter to the trial court.

Since we find that there is in personam jurisdiction in Illinois, we need not consider plaintiff’s challenges to an implicit ruling by the trial court denying plaintiff’s motion for a default judgment and to the denial of plaintiff’s motion to quash defendant’s special and limited appearance based upon the allegation that defendant appeared generally requesting time to respond to plaintiff’s motion for a default judgment.

The pleadings and affidavits provide the facts relevant to the jurisdictional issue in this case: (1) plaintiff’s verified complaint with the subject purchase agreement attached as an exhibit; (2) defendant’s motion to dismiss for want of personal jurisdiction with the affidavits of Carlos Cruz (president of defendant) and Hector Santiago (supervisor of the scanning and retouching department of defendant); (3) plaintifFs response to defendant’s motion to dismiss and an attached affidavit of Edward S. Kennedy (an account executive for plaintiff); and (4) defendant’s reply memorandum supported by a supplemental affidavit of Hector Santiago.

Plaintiff is an Illinois corporation, maintains a plant in Rolling Meadows and manufactures graphic design equipment. Defendant is a Puerto Rico corporation with its only place of business in Puerto Rico and is engaged in the business of computer graphics, computer printing and advertising.

The contract dispute is based upon an alleged default in an agreement (hereinafter agreement) for the purchase of equipment dated in March 1992 wherein D.S. America, Incorporated, is the seller and defendant is the buyer. The agreement is on the letterhead of "SCREEN (USA),” which then lists "DS America Incorporated” with its address in Rolling Meadows. The agreement provides for defendant to purchase three pieces of certain computer hardware and software: one omega link, one ECR electronic color retoucher and one expanded memory 669MB external. The contract price totaled $120,000 and revealed a balance due of $36,000 to be paid 15 days after completion of installation. In the instant action, plaintiff seeks to obtain the $36,000 as yet unpaid.

The agreement further provides "FOB [freight on board] Rolling Meadows, Ill.” and a handwritten note which states "one additional week of training at New Jersey included.” Under the handwritten note appears the signature of Carlos Cruz (defendant’s president) and the initials of E. Kennedy (plaintiff’s salesman).

The agreement lists E. Kennedy as the sales representative and bears a typed date of March 20, 1992. Cruz, as defendant’s president, signed the agreement on March 25, 1992. Kunio Tamaru, as president of D.S. America, Incorporated, signed the agreement on March 31, 1992.

In June 1990 defendant purchased from plaintiff a "dot generator color scanner” (scanner) for the price of $194,500. The purchase agreement for this sale (which is not the subject of the instant contract action) lists plaintiff’s address and the freight on board designation (FOB) in Rolling Meadows, Illinois.

According to the affidavit of Edward S. Kennedy, a salesman for plaintiff, in September 1990, Bob Breedlove, an employee of defendant, telephoned plaintiff’s offices in Fairfield, New Jersey, to inquire about an electronic color retouching system (referred to as ECR but apparently not one of the products included in the now-contested agreement) which could interface with the scanner that was purchased in June 1990. Breedlove’s call was routed to Edward Kennedy, who worked in the New Jersey office as the account executive in charge of ECR sales for plaintiff.

Kennedy further attested that in September 1991 he placed two telephone calls to Breedlove at defendant’s office in Puerto Rico to respond to Breedlove’s inquiries about the ECR system. During these phone conversations, Breedlove reiterated defendant’s interest in purchasing an ECR system to interface with defendant’s scanner. Kennedy then sent pricing information to Breedlove. Thereafter on September 30, 1991, Kennedy visited defendant’s offices in Puerto Rico to further discuss defendant’s possible purchase of an ECR system.

According to the affidavit of Cruz, the president of defendant, defendant never contacted plaintiff in Illinois or New Jersey to seek to enter into contractual relations and never corresponded in any way with plaintiff to initiate any negotiation concerning the subject matter of this litigation. Cruz maintained that Kennedy’s sales call at defendant’s offices in Puerto Rico on September 30, 1991, was unsolicited. At that time, Cruz and Santiago, an employee of defendant, met with Kennedy, who suggested that defendant needed a retouching system. Kennedy invited Santiago to visit a customer’s facility in Florida and plaintiffs facility in Rolling Meadows for sales demonstrations.

Santiago attested that he is employed by defendant as the supervisor of the scanning and retouching department. Santiago’s duties include meeting with computer salesmen and making plant visits to inspect and view demonstrations of computer hardware and software. Santiago, in his affidavit, then repeated the statements made by Cruz in his affidavit concerning Kennedy’s visit in Puerto Rico on September 30, 1991.

According to Kennedy’s affidavit, in October 1991 Santiago traveled to plaintiff’s facilities in Rolling Meadows and met with Kennedy for two days. Santiago inspected plaintiffs facilities and Kennedy introduced the ECR system which is the subject of the instant lawsuit. Santiago engaged in price negotiations with Kennedy concerning the ECR system after a demonstration of the product. Kennedy proposed three different configurations of the equipment with three different corresponding prices for Santiago to bring back to and discuss with his employers.

Kennedy further attested that Santiago, while at the Rolling Meadows facility, also examined a horizontal process camera and discussed terms related to its purchase. About one week later, on November 11, 1991, defendant signed a purchase agreement for the horizontal camera (also not a part of the agreement which is the subject matter of plaintiff’s complaint).

Cruz, in his affidavit, acknowledged that Santiago went to plaintiffs facility but maintained that Santiago was not authorized to enter into any purchase agreement or any negotiations regarding the purchase of any computer hardware or software.

Santiago attested that in October 1991 he went to Florida and Rolling Meadows for a sales demonstration of plaintiffs product.

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Bluebook (online)
654 N.E.2d 472, 211 Ill. Dec. 10, 274 Ill. App. 3d 643, 1995 Ill. App. LEXIS 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ds-america-east-inc-v-elmendorf-grafica-inc-illappct-1995.