Nos. 2--95--1621, 2--96--0179 cons.
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
KELLY A. FLINT, ) Appeal from the Circuit
Court
) of Du Page County.
Plaintiff-Appellant, )
)
v. ) No. 95--CH--222
COURT APPOINTED SPECIAL )
ADVOCATES of DU PAGE COUNTY, )
INC., a/k/a CASA of Du Page )
County, BRIAR PICCHIETTI, )
Indiv., and NATIONAL COURT )
APPOINTED SPECIAL ADVOCATE )
ASSOCIATION, a/k/a NCASAA, ) Honorable
) Bonnie M. Wheaton,
Defendants-Appellees. ) Judge, Presiding.
JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, Kelly Flint, appeals from the order of the
circuit court of Du Page County granting summary judgment in favor
of defendants, Court Appointed Special Advocates of Du Page County,
Inc. (CASA of Du Page County), and Briar Picchietti, on her claims
for breach of contract and tortious interference with an existing
contract. She also appeals from the trial court's order dismissing
her claim against the defendant, the National Court Appointed
Special Advocate Association (NCASAA), for lack of personal
jurisdiction. We affirm in part, reverse in part, and remand for
further proceedings.
NCASAA is a not-for-profit corporation which provides
technical assistance and training to CASA programs throughout the
United States. NCASAA also disburses funds it receives from the
United States Department of Justice, Office of Juvenile Justice and
Delinquency Prevention (the DOJ), in the form of grants to local
CASA programs. Local CASA programs provide trained, community
volunteers to advocate for the best interests of children who come
into the court system, primarily as a result of abuse or neglect.
Local CASA programs recruit, screen, train, and supervise these
volunteers to either serve as guardians ad litem for children,
assist attorney guardians ad litem in their representation, or
serve as independent third-party "Friends of the Court." As such,
local CASA programs are intended to serve the overall public
interest in the welfare of children. Local CASA programs are
independent organizations which become members of NCASAA in order
to enjoy the benefits of membership. As a condition of NCASAA
membership, local CASA programs agree to abide by NCASAA's
membership standards. NCASAA offers its members various support
services, which may include training, technical assistance, the
right to use certain trademarks and copyrighted materials, and the
award and administration of DOJ grant funds to qualifying
applicants.
NCASAA members include numerous local CASA programs in all 50
states. In Illinois, there are one state and 20 local CASA
programs which is a NCASAA member. CASA of Du Page County is one
of the local CASA programs in Illinois which are NCASAA members.
CASA of Du Page County is a not-for-profit Illinois corporation.
As such, it is dependent upon charitable contributions for its
operation, and NCASAA grants are its only source of substantial and
continued funding.
Picchietti has been a member of CASA of Du Page County's board
of directors (the Board) since at least January 1, 1994. During
1995, Picchietti was the president of the Board.
During 1994, the plaintiff served as CASA of Du Page County's
executive director. On April 27, 1994, CASA of Du Page County
entered into a contract with the plaintiff under which the
plaintiff would serve as executive director on an independent
contractor basis (the original contract). The original contract
was for the period beginning January 1, 1994, and ending December
31, 1994. The original contract provides, in pertinent part:
"[The plaintiff] is to receive as compensation an amount equal
to fifty (50) percent of the total gross receipts donated,
given and/or granted to CASA of Du Page County[] for the
period beginning January 1, 1994 and ending December 31, 1994,
up to an amount not to exceed $50,000.00."
In March 1994, the plaintiff applied for a NCASAA grant on
behalf of CASA of Du Page County. On July 20, 1994, NCASAA entered
into an agreement to grant CASA of Du Page County $75,000, payable
in quarterly installments over the period beginning July 1, 1994,
and ending June 30, 1996, (the grant). By entering into the
agreement, CASA of Du Page County accepted the terms and conditions
of the grant. Under the agreement, NCASAA may terminate the grant
and cease making disbursements at any time during the grant period
for violations of the grant's terms and conditions.
At a Board meeting on October 6, 1994, the plaintiff presented
a proposed payout schedule which provided for payments which she
believed CASA of Du Page County owed her under the original
contract. The Board approved the idea of a payout schedule for the
plaintiff. However, the Board had CASA of Du Page County's general
counsel, Maria Jensen, review the proposed payout schedule. After
reviewing the proposed payout schedule, Jensen prepared an
amendment to the original contract (the amendment to the contract).
At a Board meeting on November 18, 1994, the Board reviewed
and approved the amendment to the contract. Peter S. McCabe, who
was the president of the board at that time, signed the amendment
to the contract on behalf of CASA of Du Page County, and the
plaintiff signed on her own behalf. The amendment to the contract
adds the following language to the compensation provisions of the
original contract:
"If [the plaintiff's] total compensation from CASA [of Du
Page County] for 1994 does not total $50,000.00, the parties
agree, that [the plaintiff] will be entitled to an additional
$16,984.00 *** from the sums actually received from the NCASAA
grant awarded to CASA [of Du Page County] in 1994, providing
for distributions through January, 1996."
The amendment to the contract then provides for a payout schedule
through 1995 and ending in January 1996 for payouts totalling
$16,984, the amount sought in the plaintiff's amended complaint.
Finally, the amendment to the contract provides that
"[r]eimbursement to [the plaintiff] pursuant to the aforesaid
payment schedule is subject to the *** condition that the sums are
actually received, as set forth in the NCASAA Grant."
The substantial difference between the plaintiff's proposed
payout schedule and the amendment to the contract drafted by Jensen
was the addition of the language that the payments to the plaintiff
during 1995 and 1996 were to be made from funds "actually received"
from the NCASAA grant awarded in 1994. Prior to executing the
amendment to the contract, McCabe informed the plaintiff that the
terms "actually received" from the NCASAA grant were added by CASA
of Du Page County to make clear that CASA of Du Page County would
only be obligated under the payout schedule contained in the
amendment to the contract to pay her from funds actually received
from NCASAA pursuant to the grant. He also informed her that the
language was added to make clear that CASA of Du Page County was
not obligated to pay her should it lose the NCASAA grant for any
reason, as CASA of Du Page County had no other source of continued
and substantial funding from which to pay her.
On December 1, 1994, the plaintiff submitted a letter to CASA
of Du Page County, advising that she would not be renewing her
contract to serve as executive director for 1995. At the time
McCabe signed the amendment to the contract on behalf of CASA of Du
Page County, neither he nor the Board was aware that the plaintiff
would not serve as CASA of Du Page County's executive director
during 1995. In addition, neither he nor the Board knew that
NCASAA would prohibit CASA of Du Page County from paying the
plaintiff pursuant to the amendment to the contract from NCASAA
funds if the plaintiff were no longer providing services to CASA of
Du Page County.
During the period beginning July 1, 1994, and ending December
31, 1994, CASA of Du Page County received $30,000 from NCASAA
pursuant to the grant. During 1994, CASA of Du Page County
received $11,149.10 from all other grants, contributions, and fund
raisers. During 1994, CASA of Du Page County paid the plaintiff
$26,090.55 as compensation. Of this amount, $20,516.00 was paid
from funds received from NCASAA in 1994 pursuant to the grant. The
plaintiff has performed no services in any paid capacity for CASA
of Du Page County since December 31, 1994.
CASA of Du Page County had no executive director during
January 1995. On or about January 13, 1995, CASA of Du Page County
received a $7,500 grant disbursement check from NCASAA, which was
deposited into its checking account.
On January 20, 1995, in order to determine how to prepare a
request for quarterly grant disbursement from NCASAA, Picchietti
contacted Sue Shecket, NCASAA's grant administrator. Picchietti
asked Shecket how to prepare the request for quarterly grant
disbursement from NCASAA and how to indicate CASA of Du Page
County's payout obligation to the plaintiff under the amendment to
the contract. Picchietti informed Shecket of the following: (1)
that the plaintiff was no longer performing services on CASA of Du
Page County's behalf; (2) that the plaintiff had served as CASA of
Du Page County's executive director on an independent contractor
basis, with compensation based on a percentage of the total gross
receipts donated, given, and/or granted to CASA of Du Page County
for the period of her tenure; and (3) that, under the amendment to
the contract, CASA of Du Page County was to pay the plaintiff a
portion of the funds that CASA of Du Page County would receive from
NCASAA under the grant during 1995 and 1996.
Shecket informed Picchietti that NCASAA prohibited CASA of Du
Page County from paying any portion of the grant funds which would
be distributed to CASA of Du Page County during 1995 and 1996 as
compensation to the plaintiff when she was no longer performing
services for CASA of Du Page County. Shecket also informed
Picchietti that if CASA of Du Page County paid any portion of the
grant funds which would be distributed during 1995 and 1996 to the
plaintiff while she was not performing services on behalf of CASA
of Du Page County, NCASAA would rescind the grant and cease
payments thereunder.
Following her conversation with Picchietti, Shecket discussed
the situation with Michael Piraino, NCASAA's chief executive
officer. As a result of their discussion, Shecket sent a letter to
Picchietti in which she clarified the requirements and limitations
on the use of the remaining NCASAA grant funds, stating that
"[r]emaining grant funding may be used to compensate only those
personnel that are currently performing activities directly related
to the purposes of the grant."
After Picchietti's telephone conversation with Shecket and
after receiving Shecket's letter, Picchietti conferred with the
executive committee of the Board (the Executive Committee). The
Executive Committee agreed that, given NCASAA's position, CASA of
Du Page County could not pay the plaintiff under the amendment to
the contract.
On January 21, 1995, the plaintiff sent a letter to CASA of Du
Page County requesting that she be paid the $3,750 due her under
the payout schedule in the amendment to the contract. On January
30, 1995, she sent a letter to CASA of Du Page County demanding
that she be paid the $3,750.
On March 2, 1995, CASA of Du Page County responded to the
plaintiff's demands for payment through its general counsel, Dianne
Carroll. In that letter, CASA of Du Page County informed the
plaintiff that it was unable to comply with her request due to the
restrictions that NCASAA placed upon the use of the grant funds.
CASA of Du Page County further informed the plaintiff that the
amendment to the contract was predicated upon a mutual mistake of
fact and that CASA of Du Page County's performance thereunder was
discharged because of impossibility of performance.
On March 22, 1995, the plaintiff filed a three-count complaint
against CASA of Du Page County, Picchietti, and NCASAA. Count I
was a claim for breach of contract against CASA of Du Page County;
count II was a claim for tortious interference with an existing
contract against Picchietti; and count III was a claim against
NCASAA, alleging that the plaintiff had been injured by NCASAA's
failure to carry through on its promise to make quarterly payments
to CASA of Du Page County through June 1996.
On March 31, 1995, CASA of Du Page County filed an answer to
the complaint, admitting that the parties entered into the
amendment to the contract as alleged in the complaint, but alleging
the affirmative defenses of impossibility of performance and
mistake of fact.
On April 24, 1995, Picchietti filed a motion to strike and
dismiss count II of the plaintiff's complaint and the ad damnum
clause of count I of the complaint insofar as it related to her.
On May 4, 1995, NCASAA was served with the summons and
complaint.
On May 31, 1995, following a hearing on Picchietti's motion to
strike and dismiss, the trial court entered an order, striking
Picchietti from the ad damnum clause of count I and dismissing
count II of the plaintiff's complaint.
On June 5, 1995, NCASAA entered a special and limited
appearance in this case. NCASAA filed a motion to quash service of
the summons and to dismiss count III of the complaint for lack of
personal jurisdiction. NCASAA argued that service of the summons
must be quashed because the summons was served more than 30 days
after the date of its issue, in violation of Supreme Court Rule
102(b) (134 Ill. 2d R. 102(b)). In addition, NCASAA argued that
count III of the complaint must be dismissed because the trial
court lacks personal jurisdiction over NCASAA, under either the
Illinois long-arm statute or the federal and state constitutions.
In support of its motion, NCASAA filed a memorandum of law and an
affidavit of Piraino.
On June 20, 1995, the plaintiff filed an amended complaint.
In count II of the amended complaint, the plaintiff alleged that
Picchietti intentionally and maliciously interfered with the
contract between the plaintiff and CASA of Du Page County and
induced CASA of Du Page County to breach the contract.
On July 13, 1995, Picchietti filed an answer to the
plaintiff's amended complaint and her affirmative defenses, which
included impossibility of performance, mistake of fact, and
corporate officer qualified privilege.
On July 25, 1995, the trial court held a hearing on NCASAA's
motion to quash service of the summons and to dismiss the complaint
for lack of personal jurisdiction. The trial court granted
NCASAA's motion to quash service of the summons, ruled that it
lacked jurisdiction to decide NCASAA's motion to dismiss because
NCASAA had not been properly served, and granted the plaintiff
leave to attempt to properly serve NCASAA.
On August 2, 1995, CASA of Du Page County and Picchietti filed
a motion for summary judgment. In support of their motion, they
filed several affidavits, including an affidavit of Piraino. In
his affidavit, Piraino stated:
"[U]nder the terms of the agreement between NCASAA and
the DOJ governing the distribution of DOJ funds to NCASAA, as
well as under the pertinent DOJ regulations, the subgrants
NCASAA distributes to local CASA programs can only be used to
reimburse activities occurring during the Grant period. For
this reason, NCASAA is prohibited from allowing the funds
which will be disbursed under the Grant to be disbursed by
CASA of Du Page County to [the plaintiff] while she is no
longer rendering services to CASA of Du Page County.
*** For the foregoing reasons, NCASAA has prohibited CASA
of Du Page County from paying any portion of the Grant funds
which will be distributed to CASA of Du Page County during
1995 and 1996 as compensation to [the plaintiff] while she is
no longer performing services as the Executive Director of
CASA of Du Page County. If CASA of Du Page County pays any
portion of the Grant funds which will be distributed during
1995 and 1996 to [the plaintiff] while she is not performing
services on behalf of CASA of Du Page County, NCASAA will
rescind the Grant and cease payments thereunder to CASA of Du
Page County."
On August 3, 1995, the plaintiff filed a motion for summary
judgment against CASA of Du Page County.
On August 7, 1995, the plaintiff served NCASAA with a summons
and amended complaint. On August 9, 1995, NCASAA filed a motion to
dismiss count III of the amended complaint for lack of personal
jurisdiction.
On August 28, 1995, the trial court heard arguments on the
plaintiff's motion for summary judgment against CASA of Du Page
County and on CASA of Du Page County and Picchietti's motion for
summary judgment against the plaintiff. Following the arguments of
counsel, the trial court granted summary judgment in favor of CASA
of Du Page County and Picchietti and against the plaintiff on
counts I and II of the plaintiff's amended complaint.
As to the claim against CASA of Du Page County, the trial
court found that there was no consideration for the amendment to
the contract and that if CASA of Du Page County brought a
counterclaim for rescission, the court would be compelled to
rescind the contract and return the parties to the status quo as of
November 18, 1994. As to the issue of impossibility of
performance, the trial court found that, if CASA of Du Page County
paid any NCASAA grant funds to the plaintiff during 1995 and 1996,
while the plaintiff was no longer working for CASA of Du Page
County, NCASAA would not disburse any additional funds to CASA of
Du Page County and CASA of Du Page County would not be able to pay
any additional funds to the plaintiff. As to the issue of mutual
mistake of fact, the trial court found that the parties did not
contemplate that CASA of Du Page County's performance under the
amendment to the contract would bring about the destruction of the
NCASAA grant, which was CASA of Du Page County's means of meeting
its obligations under the amendment to the contract. The trial
court also found that CASA of Du Page County did not owe the
plaintiff anything further under the original contract.
In granting summary judgment in favor of Picchietti on the
plaintiff's claim for tortious interference with an existing
contract, the trial court found that, in contacting NCASAA,
Picchietti acted in her capacity as president of the Board of a
not-for-profit corporation. In addition, the trial court found
that, even if Picchietti had an improper motive in contacting
NCASAA, Picchietti could not be held liable for tortious
interference with an existing contract because the amendment to the
contract was unenforceable.
The plaintiff filed a motion to reconsider, arguing that the
trial court erred in holding: (1) that no consideration existed
for the amendment to the contract; (2) that CASA of Du Page County
did not owe her anything further under the original contract; (3)
that, as to the amendment to the contract, the defenses of mutual
mistake of material fact and impossibility of performance would
have been available to CASA of Du Page County; and (4) that no
genuine issue of material fact existed regarding her claim against
Picchietti.
On November 22, 1995, the trial court granted, with prejudice,
NCASAA's motion to dismiss count III of the plaintiff's amended
complaint for lack of personal jurisdiction. The trial court's
order contained language allowing appeal under Supreme Court Rule
304(a) (155 Ill. 2d R. 304(a)). The plaintiff filed a timely
notice of appeal from the order granting NCASAA's motion to
dismiss.
On January 19, 1996, the trial court denied the plaintiff's
motion for reconsideration of its August 28, 1995, order granting
summary judgment in favor of CASA of Du Page County and Picchietti.
The plaintiff filed a timely notice of appeal from the August 28,
1995, and January 19, 1996, orders. This court allowed the
plaintiff's motion to consolidate the appeals.
We will begin our analysis by addressing the issue of whether
the trial court properly granted summary judgment in favor of CASA
of Du Page County. Since the purpose of a summary judgment
proceeding is to determine whether a genuine issue of triable fact
exists (Purtill v. Hess, 111 Ill. 2d 229, 240 (1986)), a motion for
summary judgment should be granted "if the pleadings, depositions,
and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law" (735
ILCS 5/2--1005(c) (West 1994); see also Gatlin v. Ruder, 137 Ill.
2d 284, 293 (1990)). While the use of the summary judgment
procedure is to be encouraged in the interest of the prompt
disposition of lawsuits, it is a drastic means of disposing of
litigation and therefore it should be allowed only when a party's
right to it is clear and free from doubt. Pyne v. Witmer, 129 Ill.
2d 351, 358 (1989). In determining the existence of a genuine
issue of material fact, the court must construe the evidence
strictly against the moving party and liberally in favor of the
nonmoving party. Gatlin, 137 Ill. 2d at 293. While a party
opposing a motion for summary judgment need not prove his case at
that preliminary stage, he is required to present some factual
basis that would arguably entitle him to a judgment in his favor.
Fuentes v. Lear Siegler, Inc., 174 Ill. App. 3d 864, 866 (1988).
If a plaintiff fails to establish an element of the cause of
action, summary judgment in favor of the defendant is proper.
Pyne, 129 Ill. 2d at 358.
An order granting summary judgment will be reversed if the
pleadings, depositions, admissions, exhibits, and affidavits on
file show that a genuine issue of material fact existed or if the
judgment was incorrect as a matter of law. Quinton v. Kuffer, 221
Ill. App. 3d 466, 471 (1991). The disposition of a summary
judgment motion is not discretionary and the standard of review is
de novo. Quinton, 221 Ill. App. 3d at 471.
In granting summary judgment in favor of CASA of Du Page
County on the plaintiff's claim for breach of contract, the trial
court ruled that the amendment to the contract was unenforceable in
that it was not supported by consideration. The trial court found
that the amendment to the contract provided additional compensation
to the plaintiff based on her performance of duties which she was
already obligated to perform under the original contract. The
plaintiff argues that the trial court erred in determining that the
amendment to the contract was not supported by consideration.
To support a modification of an agreement, there must be
consideration. De Fontaine v. Passalino, 222 Ill. App. 3d 1018,
1028 (1991). Valuable consideration for a contract consists of
some right, interest, profit, or benefit accruing to one party, or
some forbearance, detriment, loss, or responsibility given,
suffered, or undertaken by the other. De Fontaine, 222 Ill. App.
3d at 1028. A promise to do something which one is already
obligated to do is no consideration and creates no new obligation.
Moehling v. W.E. O'Neil Construction Co., 20 Ill. 2d 255, 266
(1960).
Under the amendment to the contract, the parties agreed that
if the plaintiff's total compensation from CASA of Du Page County
for 1994 did not total $50,000, the plaintiff would be entitled to
an additional $16,984 from the sums actually received during 1995
and 1996 from the NCASAA grant awarded to CASA of Du Page County
during 1994. The amendment to the contract then provided for a
payout schedule through 1995 and ending in January 1996 for payouts
totaling $16,984.
Under the amendment to the contract, the plaintiff would have
received a benefit in that she would have been entitled to an
additional $16,984 from CASA of Du Page County which was not due
her under the original contract (see our discussion below regarding
what was due the plaintiff under the original contract). However,
CASA of Du Page County would have received nothing in return except
for the plaintiff's continued performance of her original contract
through December 31, 1994, which she was already obligated to do.
Consequently, we conclude that the trial court properly found that
there was no consideration for the amendment to the contract (see
Moehling, 20 Ill. 2d at 266) and that since there was no
consideration for the amendment to the contract, the amendment to
the contract was unenforceable.
The plaintiff argues that, even if the amendment to the
contract was unenforceable, she is entitled to the relief sought in
her pleadings based on the original contract. We disagree.
The original contract provides that the plaintiff is entitled
"to receive as compensation an amount equal to fifty (50) percent
of the total gross receipts donated, given and/or granted to CASA
of Du Page County[] for the period beginning January 1, 1994 and
ending December 31, 1994, up to an amount not to exceed $50,000."
The plaintiff argues that, under the original contract, she was
entitled to 50% of the entire $75,000 NCASAA grant, or $37,500.
However, CASA of Du Page County was not granted $75,000 "for the
period beginning January 1, 1994 and ending December 31, 1994."
Rather, it was granted $75,000 for a two-year period, payable in
quarterly installments beginning in July 1994 and ending in June
1996. Therefore, under the original contract, the plaintiff was
not entitled to 50% of the entire $75,000 NCASAA grant. Instead,
she was entitled to 50% of that portion of the NCASAA grant which
was granted "for the period beginning January 1, 1994 and ending
December 31, 1994."
A review of the record reveals that, under the original
contract, the plaintiff was actually overpaid. During the period
beginning July 1, 1994, and ending December 31, 1994, NCASAA
disbursed $30,000 to CASA of Du Page County from grant funds.
During that same period, CASA of Du Page County paid the plaintiff
$26,090.55 as total compensation. Of this amount, $20,516 was paid
by CASA of Du Page County from the funds received from the NCASAA
grant. However, under the original contract, the plaintiff was
only entitled to 50% of $30,000 (the funds CASA of Du Page County
received from the NCASAA grant during 1994), which is $15,000.
Therefore, as the plaintiff was actually overpaid in the amount of
$5,516, CASA of Du Page County did not breach its contract with the
plaintiff. Accordingly, the trial court properly granted summary
judgment in favor of CASA of Du Page County.
Since we have determined that the trial court properly granted
summary judgment in favor of CASA of Du Page County on this basis,
we need not address the plaintiff's arguments that the defenses of
impossibility of performance and mistake of fact were not available
to CASA of Du Page County.
We turn now to the issue of whether the trial court properly
granted summary judgment in favor of Picchietti. However, before
reaching the merits of this issue, we note that the plaintiff has
misrepresented the record on appeal. In both her original and
amended statement of facts, the plaintiff stated that Picchietti
did not file an answer to the amended complaint. The plaintiff
argues that Picchietti's alleged failure to file an answer operates
as an admission of the facts alleged in the complaint. However,
our review of the record reveals that Picchietti did, in fact, file
an answer to the amended complaint on July 13, 1995, which is
included in the record on appeal. Moreover, the plaintiff's third
amended appendix to her brief demonstrates her awareness that
Picchietti filed an answer and that the answer is included in the
record on appeal. Based on the plaintiff's misrepresentation of
the record on appeal, counsel for CASA of Du Page County and
Picchietti has asked this court to impose sanctions under Supreme
Court Rule 375(b) (155 Ill. 2d R. 375(b)). While we certainly do
not want to encourage such misrepresentation of the record on
appeal, we decline to impose sanctions in the present case.
We will now address the issue of whether the trial court
properly granted summary judgment in favor of Picchietti on the
contract (count II). The plaintiff argues that the trial court
erred in granting summary judgment in favor of Picchietti because
a genuine issue of material fact exists as to Picchietti's motives
in contacting NCASAA and because she alleged sufficient facts to
state a cause of action for tortious interference with an existing
contract.
The elements necessary to state a cause of action for tortious
interference with an existing contract are (1) the existence of a
valid and enforceable contract between the plaintiff and another;
(2) the defendant's awareness of this contractual relationship; (3)
the defendant's intentional and unjustified inducement of a breach
of the contract; (4) a subsequent breach by the other as a result
of the defendant's wrongful conduct; and (5) damages. HPI Health
Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131 Ill. 2d 145,
154-55 (1989).
In the present case, we have already concluded that the trial
court properly found that the amendment to the contract was
unenforceable and that CASA of Du Page County did not breach the
original contract. Thus, the plaintiff has failed to establish two
of the elements necessary to state a cause of action for tortious
interference with an existing contract (see HPI Health Care
Services, 131 Ill. 2d at 154-55), and summary judgment in favor of
Picchietti was proper (see Pyne, 129 Ill. 2d at 358).
Since we have already concluded that the trial court properly
granted summary judgment in favor of Picchietti on this basis, we
need not address the plaintiff's arguments that the defense of
corporate officer qualified privilege was not available to
Picchietti and that a genuine issue of material fact existed as to
Picchietti's motive in contacting NCASAA.
Finally, we turn to the issue of whether the trial court
properly granted NCASAA's motion to dismiss for lack of personal
jurisdiction. The plaintiff asserts that in personam jurisdiction
over NCASAA exists because NCASAA has "transacted business" within
Illinois and because NCASAA is "doing business" within Illinois.
See 735 ILCS 5/2--209(a)(1), (b) (West 1994). NCASAA argues that
its conduct fits within neither of these categories and that, even
if it does, the exercise of in personam jurisdiction over it is
inconsistent with due process.
The party who wishes to impose jurisdiction has the burden of
establishing a valid basis for jurisdiction over a nonresident
defendant. R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d
304, 310 (1986). The essential inquiry on appeal is whether the
plaintiff has met this burden. Professional Group Travel, Ltd. v.
Professional Seminar Consultants, Inc., 136 Ill. App. 3d 1084, 1089
(1985).
Illinois courts may exercise jurisdiction over a nonresident
defendant if jurisdiction is proper under section 2--209 of the
Code of Civil Procedure (the Illinois long-arm statute) (735 ILCS
5/2--209 (West 1994)) and if the exercise of jurisdiction is
consistent with state and federal due process requirements.
Rollins v. Ellwood, 141 Ill. 2d 244, 275 (1990). However,
subsection (c) of the Illinois long-arm statute, effective
September 7, 1989, enables an Illinois court to exercise in
personam jurisdiction "on any other basis now or hereafter
permitted by the Illinois Constitution and the Constitution of the
United States." 735 ILCS 5/2--209(c) (West 1994). Based on
subsection (c), an Illinois court may exercise personal
jurisdiction over a nonresident defendant as long as the exercise
of such jurisdiction offends neither federal nor state guarantees
of due process. G.M. Signs, Inc. v. Kirn Signs, Inc., 231 Ill.
App. 3d 339, 342 (1992).
Federal due process requires that, in order to exercise in
personam jurisdiction over a nonresident defendant, it is necessary
that the defendant have certain "minimum contacts" with the forum
state such that the maintenance of the suit there does not offend
" 'traditional notions of fair play and 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). In
determining whether the trial court's exercise of in personam
jurisdiction over a nonresident defendant satisfies the
requirements of federal due process, a court must consider three
criteria: (1) whether the nonresident defendant had minimum
contacts with the forum state such that it had fair warning that it
could be required to defend itself there; (2) whether the action
arose out of or related to the defendant's contacts with the forum
state; and (3) whether it is reasonable to require the defendant to
litigate in the forum state. Burger King Corp. v. Rudzewicz, 471
U.S. 462, 471-77, 85 L. Ed. 2d 528, 540-44, 105 S. Ct. 2174, 2181-
84 (1985).
For the exercise of personal jurisdiction over a nonresident
defendant to satisfy due process requirements, there must be some
act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum state, thereby
invoking the benefits and protections of its laws. Hanson v.
Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228,
1240 (1958). Satisfaction of this requirement ensures that an
alien defendant will not be forced to litigate in a distant or
inconvenient forum solely as a result of random, fortuitous, or
attenuated contacts, or the unilateral act of a consumer or some
other third person. Burger King, 471 U.S. at 475, 85 L. Ed. 2d at
542, 105 S. Ct. at 2183. The minimum contacts and fair warning
requirements for the exercise of personal jurisdiction over a
nonresident defendant consistent with due process are satisfied if
a defendant has either purposefully directed its activities at
residents of the forum state, reached out beyond one state and
created continuing relationships and obligations with citizens of
the forum state, or purposefully derived benefits from its
activities within the forum state. Burger King, 471 U.S. at 471-
74, 85 L. Ed. 2d at 540-41, 105 S. Ct. at 2181-83.
Once it has been determined that a defendant's conduct
establishes minimum contacts with the forum state, these contacts
may be considered in light of several other factors to determine
whether the assertion of in personam jurisdiction comports with due
process. Burger King, 471 U.S. at 476, 85 L. Ed. 2d at 543, 105 S.
Ct. at 2184. The burden on the defendant, while always a primary
concern, will in an appropriate case be considered in light of
other relevant factors, including the forum state's interest in
adjudicating the dispute, the plaintiff's interest in obtaining
convenient and effective relief, the interstate judicial system's
interest in obtaining the most efficient resolution of
controversies, and the shared interest of the several states in
furthering fundamental social policies. World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 292, 62 L. Ed. 2d 490, 498, 100 S.
Ct. 559, 564 (1980).
These standards of federal due process delineate " 'the outer
limits beyond which a State may not go to acquire jurisdiction over
nonresidents.' " Rollins, 141 Ill. 2d at 271, quoting Cook
Associates, Inc. v. Lexington United Corp., 87 Ill. 2d 190, 197
(1981). Illinois courts must ultimately look to the meaning of the
Illinois long-arm statute (735 ILCS 5/2--209 (West 1994)) and to
the due process guarantee of the Illinois Constitution (Ill. Const.
1970, art. I, §2). Rollins, 141 Ill. 2d at 271-75. The Illinois
long-arm statute and the Illinois Constitution may restrict the
power of Illinois courts to bring nonresidents before them to a
greater extent than do the federal due process clause and the
"minimum contacts" test recognized by the federal courts. Rollins,
141 Ill. 2d at 271-75. Under the state due process guarantees,
jurisdiction is to be asserted only when 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, 141 Ill. 2d at 275.
The facts relevant to this issue are as follows: NCASAA is
located in, and incorporated under the laws of, the state of
Washington. Since its founding, NCASAA's offices have been located
in Seattle, Washington. Two of NCASAA's fifteen national board
members are Illinois residents. NCASAA has no offices, employees,
property, or bank accounts in Illinois.
NCASAA is a national membership organization for hundreds of
local CASA programs throughout the United States. The CASA name is
owned by NCASAA. It is a condition of the use of the CASA name and
logo that local CASA programs become members of NCASAA and agree to
abide by NCASAA's national standards.
NCASAA members include numerous local CASA programs in all 50
states. These local CASA programs are independently operated and
managed. One state and 20 local CASA programs located in Illinois
are members of NCASAA. Each local CASA program pays NCASAA a $90
annual membership fee. NCASAA offers its members support services,
which may include training, technical assistance, and the right to
use certain trademarks and copyrighted materials.
CASA of Du Page County is one of the local CASA programs in
Illinois which are members of NCASAA. NCASAA did not found or
establish CASA of Du Page County. No employee of NCASAA has ever
visited CASA of Du Page County. In February 1993, two NCASAA staff
members attended the Illinois State CASA conference, where they met
and spoke with two representatives of CASA of Du Page County.
NCASAA provides disbursement of funding received from the DOJ,
in the form of grants to local CASA programs. In January of each
year, NCASAA distributes requests for proposals to the local CASA
programs. These requests for proposals include grant application
forms. Local CASA programs then send NCASAA grant application
proposals. NCASAA distributes funds to as many local CASA programs
as qualify. NCASAA sends a document entitled "Terms and Conditions
for National CASA Grants" to local CASA programs. Local CASA
programs sign it and send it back to NCASAA. Once NCASAA receives
it, NCASAA's chief executive officer signs it. At this point,
NCASAA considers the local CASA programs to be grantees. As a
result of receiving NCASAA grant funds, local CASA programs have
additional reporting requirements.
Nine CASA programs located in Illinois applied for and
received NCASAA grants for 1994 and 1995. These grants ranged in
amount from $27,000 to $75,000 and totaled $422,999.
CASA of Du Page County was one of the nine CASA programs
located in Illinois that applied for and received NCASAA grants for
1994 and 1995. On July 20, 1994, NCASAA entered into an agreement
to grant CASA of Du Page County $75,000, payable in quarterly
installments over the period beginning July 1, 1994, and ending
June 30, 1996. CASA of Du Page County accepted the terms and
conditions of the grant. NCASAA can terminate the grant and cease
making disbursements at any time during the grant period for
violations of these terms and conditions. In January 1995, NCASAA
prohibited CASA of Du Page County from paying any portion of the
NCASAA grant funds to the plaintiff when she was no longer
performing services on behalf of CASA of Du Page County.
During 1994 and 1995, NCASAA received charitable contributions
from 23 individuals in Illinois, totaling $1,245.
Applying the Illinois long-arm statute and the state and
federal due process requirements to the facts of the present case,
we conclude that the plaintiff has met her burden (see Professional
Group Travel, 136 Ill. App. 3d at 1089) of showing that the
exercise of jurisdiction over NCASAA would be fair, just, and
reasonable under the relevant circumstances (see Rollins, 141 Ill.
2d at 275) and that NCASAA has sufficient contacts with Illinois to
satisfy due process (see International Shoe, 326 U.S. at 316, 90 L.
Ed. at 102, 66 S. Ct. at 158).
By its activities outlined above, NCASAA has reached out
beyond its home state and created continuing relationships and
obligations with Illinois residents. See Burger King, 471 U.S. at
471-74, 85 L. Ed. 2d at 540-41, 105 S. Ct. at 2181-83. In
addition, NCASAA has purposefully derived benefits from its
activities within Illinois, such as membership dues from local CASA
programs in Illinois and contributions from Illinois citizens. See
Burger King, 471 U.S. at 471-74, 85 L. Ed. 2d at 540-41, 105 S. Ct.
at 2181-83. Hence, its contacts with Illinois cannot reasonably be
characterized as random, fortuitous, or attenuated. See Burger
King, 471 U.S. at 475, 85 L. Ed. 2d at 542, 105 S. Ct. at 2183.
The record demonstrates that NCASAA's contacts with Illinois are
sufficient to make it foreseeable that it might reasonably be haled
into court in Illinois. See Burger King, 471 U.S. at 471-77, 85 L.
Ed. 2d at 540-44, 105 S. Ct. at 2181-84. In addition, NCASAA's
contacts within Illinois are sufficiently related to the cause of
action against them and, at least in part, gave rise to it. See
Burger King, 471 U.S. at 471-77, 85 L. Ed. 2d at 540-44, 105 S. Ct.
at 2181-84. Therefore, the trial court erred in finding that it
lacked in personam jurisdiction over NCASAA.
Based on our conclusion that NCASAA was subject to in personam
jurisdiction, we need not address the plaintiff's argument that
NCASAA generally appeared when CASA of Du Page County submitted
Piraino's affidavit to the trial court.
For the foregoing reasons, the judgment of the circuit court
of Du Page County granting CASA of Du Page County and Picchietti's
motion for summary judgment is affirmed; the judgment granting
NCASAA's motion to dismiss for lack of personal jurisdiction is
reversed; and the cause is remanded for further proceedings
consistent with this decision.
Affirmed in part and reversed in part; cause remanded.
BOWMAN and RATHJE, JJ., concur.