TCA International v. B&B Custom Auto

SECOND DIVISION
September 22, 1998



No. 1-98-0252

IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT

TCA INTERNATIONAL, INC., an Illinois
Corporation,

Plaintiff-Appellant,

v.

B & B CUSTOM AUTO, INC., d/b/a J & B
MARKETING a/k/a AUTOMOTIVE STYLIN'
WAREHOUSE,

Defendant-Appellee.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

No. 97L10969

Honorable
Lee Preston,
Judge Presiding.


JUSTICE GORDON delivered the opinion of the Court:
Plaintiff TCA International, Inc. (TCA) appeals from an
order of the Circuit Court of Cook County granting the motion of
defendant B & B Custom Auto, Inc. (J & B) to quash service and
dismiss the action for lack of personal jurisdiction. We reverse
and remand.
FACTS
In September 1997 TCA filed an action against J & B in the
circuit court for breach of contract. TCA, an Illinois
corporation in the business of sale of automobile accessories,
alleged in its complaint that J & B was "a New Jersey corporation
which transacted business in the State of Illinois and in other
States including New Jersey purchasing and selling automobile
parts and accessories." Plaintiff alleged that J & B placed
telephone orders with TCA at TCA's offices in Glenview, Illinois,
in response to which TCA shipped merchandise to J & B "directly
or indirectly from suppliers, both locally and internationally."
It alleged that J & B had breached its contract with TCA by
failing to pay for products it had ordered and which TCA had
caused to be shipped to it from TCA's supplier in France.
Invoices listing TCA's address in Glenview, Illinois, were
attached to the complaint.
In October J & B entered a special and limited appearance
under section 2-301(a) of the Code of Civil Procedure (Code) (735
ILCS 5/2-301 (West 1994)) "for the sole purpose of objecting to
the personal jurisdiction of the Court over [J & B]." J & B
moved to dismiss the action and quash service, arguing that
Illinois could not exercise jurisdiction over it because it was
merely a "passive," not an "active," purchaser, and it did not
have sufficient contacts with this State.
In support of its motion J & B attached an affidavit of its
secretary and treasurer, Belfield Bovell. In his affidavit
Bovell averred that J & B was a "small warehouse distributor"
(5000 sq. ft. warehouse) of automotive accessories to car
dealerships and retail stores located primarily in New Jersey,
with some active accounts in New York and Connecticut. Bovell
stated that J & B did not and never had maintained an office,
bank account, mail drop or telephone number in Illinois; it was
not licensed to do business in Illinois; and it did not employ
any individuals in Illinois. He averred that although he did
send J & B's payments to a John Schelthoff, at the latter's
request, Schelthoff informed him that he would forward the
payments "to TCA in France."
Bovell stated that he first became aware of TCA's products
while attending the Specialty Equipment Market Association
("SEMA") trade show in Las Vegas, Nevada in October 1995. At the
SEMA show he met Schelthoff, who introduced himself as a sales
representative for TCA. Bovell averred that Schelthoff told him
TCA "was an automotive accessory manufacturing company located in
France. He also gave *** the impression that he was the only TCA
representative in the United States." Bovell stated that
Schelthoff took Bovell's card but he (Schelthoff) did not have
any business cards or brochures. Schelthoff telephoned him
(Bovell) three weeks later to inquire whether J & B still had any
interest in distributing TCA's products, and later sent him TCA's
catalogues and brochures.
J & B subsequently placed several orders through Schelthoff
for products shown in TCA's catalogues. Bovell averred that J &
B never ordered goods which were to be specially manufactured,
only stock items from TCA's catalogues. He stated that each time
he placed an order, Schelthoff explained that delivery would take
at least four weeks, since the goods would be shipped directly
from TCA in France. Bovell stated that at all times he believed
he was doing business with a foreign company. Bovell stated that
all orders were shipped directly from TCA in France except that
twice, when J & B's order was "backordered" in France, Schelthoff
obtained the backordered goods "from other United States
customers of TCA" and shipped them (a total of seven pieces in
the two orders) directly to J & B. Bovell stated that J & B
never negotiated with TCA regarding price; rather, Schelthoff
offered J & B better prices and an opportunity to be the
exclusive New York/New Jersey TCA distributor if J & B increased
its orders.
According to Bovell, Schelthoff had discussed with him the
possibility of using J & B's warehouse for its products because
TCA did not have its own warehouse in the United States, which
Bovell said on information and belief was still true. Bovell
further stated that Schelthoff had visited J & B three times to
check on delivery and shipment of items from France or to take
inventory of TCA's goods stored in J & B's warehouse, but on
information and belief, no J & B employee had ever visited
Illinois for any J & B business purpose. He stated that two of
Schelthoff's visits were at the request of a Jacques Djemad, who,
according to what Schelthoff told Bovell, was an owner of TCA.
Bovell stated that in July 1996 he telephoned Schelthoff
regarding a late delivery, and shortly thereafter received a
telephone call from Djemad to apologize and explain the delay.
Djemad also called Bovell from France several times to discuss
payment of J & B's outstanding invoices. When Bovell told Djemad
in April 1997 that J & B was having difficulty "moving the goods"
because of market conditions, Djemad stated that either J & B
would have to return the goods or tender payment in full. Later,
on a conference call with Djemad and Schelthoff, Bovell agreed to
return the goods, but in June Schelthoff told him that Djemad had
changed his mind, and "J & B could expect to be sued for
nonpayment on the outstanding invoices."
In November 1997 TCA filed a response to J & B's motion to
dismiss, attaching the counter-affidavit of John Schelthoff, Jr.,
President of TCA. In his affidavit, Schelthoff stated that TCA
was an Illinois corporation, located at all relevant times at
1775 Chestnut Avenue, Glenview, Illinois. TCA is the United
States distributor of automobile accessories manufactured by TCA
Distribution S.A., a French corporation ("TCA France").
Schelthoff stated that he was in charge of the TCA booth at
the SEMA show in Las Vegas in October 1995, and at all times he
wore a required "Official Exhibitor Badge" (a copy of which was
attached as an exhibit to Schelthoff's affidavit) which stated in
part "John Schelthoff, TCA International, Inc., Glenview, IL."
He also stated that he gave business cards and brochures (copies
of which were also attached as exhibits to the affidavit) "to all
people who visited the [TCA] booth and who requested such
materials." Both his business card and the brochures listed
TCA's office as Glenview, Illinois. He denied ever introducing
himself to anyone as a sales representative for TCA France.
Schelthoff averred (contrary to Bovell's affidavit) that he
(Schelthoff) did not telephone J & B after the trade show.
Rather, he asserted, Bovell contacted him "by telephone call into
Plaintiff's office in the State of Illinois" professing his
interest in becoming TCA's exclusive distributor in the northeast
and requesting a price sheet. Schelthoff stated that he sent a
price sheet to Bovell. That sheet, a copy of which was attached
to Schelthoff's affidavit, listed TCA's address in Glenview,
Illinois, and stated that prices included shipping costs "based
on minimum order quantity. Other orders are shipped F.O.B.
Glenview, IL." Schelthoff also stated that he later sent Bovell
a copy of an article from Motor Trend Magazine about TCA (a copy
of which was attached as an exhibit to his affidavit) which
listed TCA's address as Glenview, Illinois.
Schelthoff asserted that after he sent the price list to
Bovell, Bovell "proceeded to order merchandise from [TCA] by
placing orders by telephone into the State of Illinois." He
averred that the products sold to J & B "required five to six
weeks of lead time for manufacture" and "were manufactured to
order for vehicles sold primarily in the United States," and that
J & B was "billed from the State of Illinois" and "made payments
into the State of Illinois." Attached as an exhibit to the
affidavit were copies of J & B's cancelled checks, which
reflected having been deposited into TCA's account at Citibank,
FSB, in Chicago, Illinois. Another exhibit to Schelthoff's
affidavit were invoices which, on their faces, identify TCA's
location as Glenview, Illinois.
Schelthoff also stated that TCA warehoused merchandise at
All Freight in Illinois, and that J & B knew this fact. TCA
supported this assertion with an exhibit attached to Schelthoff's
affidavit of a copy of an invoice with instructions to All
Freight to ship a particular piece of merchandise to J & B.
Another exhibit to the affidavit was a bill of lading for
shipment from All Freight, in Illinois, to J & B, with a J & B
fax imprint thereon. Schelthoff maintained that the fact that J
& B faxed a copy of the All Freight bill of lading back to TCA
"manifest[ed] its full knowledge that the accessories were being
shipped from Plaintiff's Illinois warehouse to the Defendant."
Finally, Schelthoff stated that Djemad was an employee of TCA
France, but had never been "an officer, director, employee or
agent" of TCA, and "never had any authority to act for [TCA], or
to negotiate a settlement with [J & B]."
J & B filed a reply brief with a supplemental affidavit from
Bovell. Bovell averred in the supplemental affidavit that when J
& B placed its orders with TCA, both parties contemplated that
all of the goods would be manufactured in France and shipped
directly to J & B in New Jersey. He stated that of the
approximately 780 total parts J & B ordered, 760 were shipped
directly from France to New Jersey, approximately 20 parts were
never shipped, and a total of 7 parts were shipped from Illinois
on two occasions when J & B was backordered. He stated that he
did not recall seeing Schelthoff wearing the exhibitor badge at
the SEMA show, and Schelthoff did not mention at SEMA that TCA
would be featured in a Motor Trend article. Bovell also averred
that he had several telephone conversations with Djemad because
of Schelthoff's statements that Djemad was the "TCA official who
possessed the authority to resolve the issues in dispute between
J & B and TCA, and that Schelthoff did not have such authority."
Bovell attached as an exhibit to his affidavit a copy of J & B's
telephone records for April 1997 which includes a telephone call
to France.
In January 1998 the circuit court entered an order granting
J & B's motion to dismiss. The court found it unnecessary to
determine whether J & B committed one of the acts allowing
Illinois to assert jurisdiction under its long-arm statute (735
ILCS 5/2-209 (West 1994)), because jurisdiction was barred by the
due process clause of the Constitution of the State of Illinois.
The court found J & B's contacts with Illinois to be "random,
fortuitous or attenuated and insufficient to sanction the
exercise of in personam jurisdiction over it by this Court."
TCA filed this appeal in January 1998. It argues that the
circuit court erred in determining that J & B's contacts were
insufficient to allow Illinois courts to assert jurisdiction over
it. TCA asserts that J & B's purposeful placement of telephone
orders into Illinois and making payments into Illinois
constituted sufficient contacts for jurisdiction to attach in
Illinois. For the reasons given below, we reverse and remand.
ANALYSIS
I BURDEN OF PROOF AND STANDARD OF REVIEW
Two threshold issues we must reach before we can analyze the
circuit court's ruling are (1) what was plaintiff's burden in the
circuit court, and (2) what is our standard of review. Appellant
has not addressed either question, notwithstanding that the
latter omission contravenes the requirements of amended Supreme
Court Rule 341(e)(3) (xx Ill. 2d R. 341(e)(3) (appellant must
include in his brief "a concise statement of the applicable
standard of review for each issue, with citation to authority").
Appellee, on the other hand, asserts in its brief that the party
seeking to impose jurisdiction (TCA) had to establish
jurisdiction by a preponderance of the evidence at the circuit
court level and that our review is governed by the manifest
weight of the evidence standard. However, as shall be discussed,
our review reveals an apparent chasmatic split of authority on
these questions. Accordingly, notwithstanding appellant's
failure to address these threshold issues, we feel compelled to
do so rather than simply accepting appellee's unchallenged
assertion.
A substantial line of authorities appears to adhere to the
positions that (1) a plaintiff can rebut a challenge to a court's
personal jurisdiction over a defendant by merely establishing a
prima facie case of jurisdiction, and (2) any conflicts in the
pleadings and affidavits must be resolved in the plaintiff's
favor when deciding this issue. E.g., D.S. America (East) Inc.
v. Elmendorf Grafica, Inc., 274 Ill. App. 3d 643, 649, 654 N.E.2d 472, 476 (1995); E.A. Cox Co. v. Road Savers Intern. Corp., 271
Ill. App. 3d 144, 148, 648 N.E.2d 271, 274-75 (1995); Alpert v.
Bertsch, 235 Ill. App. 3d 452, 459, 601 N.E.2d 1031, 1035 (1992);
Japax, Inc. v. Sodick Co. Ltd., 186 Ill.App.3d 656, 663, 542 N.E.2d 792, 796 (1989); Wiles v. Morita Iron Works Co., 152 Ill.
App. 3d 782, 504 N.E.2d 942 (1987), rev'd on other grounds, 125 Ill. 2d 144, 530 N.E.2d 1382 (1988); Gordon v. Tow, 148 Ill. App.
3d 275, 498 N.E.2d 718 (1986); Mandalay Associates, Ltd. v.
Hoffman, 141 Ill. App. 3d 891, 491 N.E.2d 39 (1986); Professional
Group Travel, Ltd. v. Professional Seminar Consultants, Inc., 136
Ill. App. 3d 1084, 483 N.E.2d 1291 (1985); Financial Management
Services, Inc. v. Sibilsky & Sibilsky, Inc., 130 Ill. App. 3d
826, 474 N.E.2d 1297 (1985); Kutner v. DeMassa, 96 Ill. App. 3d
243, 247, 421 N.E.2d 231, 234-35 (1981). Under this approach,
the function of the trial court is merely to determine whether
the necessary elements of personal jurisdiction have been alleged
in plaintiff's affidavit(s) and uncontradicted pleadings.[fn1]
See Cameron v. Owens-Corning Fiberglas Corp, -- Ill. App. 3d --,
--, 695 N.E.2d 572, 579 (uncontradicted allegations of
jurisdictional facts regarding conspiracy, when pled with
sufficient specificity, are sufficient to provide the circuit
court with jurisdiction); Kutner, 96 Ill. App. 3d at 247-48, 421 N.E.2d at 235. Once the court determines that the necessary
elements establishing jurisdiction have been alleged in
plaintiff's submissions, the trial court must find jurisdiction
to have been established without further inquiry, even though the
relevant facts in plaintiff's affidavit(s) are contradicted by
defendant's counter-affidavit(s). Consequently, review of the
trial court's determination is de novo, as it is made solely from
the face of the documents with no weighing of evidence or
determinations of credibility. See Cox, 271 Ill. App. 3d at 148,
648 N.E.2d at 275 ("since the trial court did not hold an
evidentiary hearing on the defendant's motion attacking its
jurisdiction, our review of the issue is de novo"), citing
Mandalay, 141 Ill. App. 3d at 895, 491 N.E.2d at 42 ("since there
was no evidentiary hearing on defendants' motion to dismiss, we
will independently determine whether defendants' contacts with
Illinois are sufficient to subject them to the jurisdiction of
the Illinois courts,"), citing Zeunert v. Quail Ridge
Partnership, 102 Ill. App. 3d 603, 607, 430 N.E.2d 184 (1981).
Several recent cases have departed from this position,
holding that the plaintiff (or whatever party asserts personal
jurisdiction exists) must establish jurisdiction by a
preponderance of the evidence. See Stein v. Rio Parismina Lodge,
296 Ill. App. 3d 520, 695 N.E.2d 518 (1998); Dilling v. Sergio,
263 Ill. App. 3d 191, 195, 635 N.E.2d 590, 593 (1994);
Rokeby-Johnson v. Derek Bryant Ins. Brokers, Ltd., 230 Ill. App.
3d 308, 318, 594 N.E.2d 1190, 1197 (1992); People ex rel.
Hartigan v. Kennedy, 215 Ill. App. 3d 880, 890, 576 N.E.2d 107,
113-14 (1991); Finnegan v. Les Pourvoiries Fortier, Inc., 205
Ill. App. 3d 17, 25, 562 N.E.2d 989, 994 (1990). Under this
approach, conflicts between the affidavits filed by plaintiff and
defendant are not to be resolved in favor of plaintiff, but are
to be tested and weighed. The standard of review under this line
of authority is thus not de novo, but one of determining the
manifest weight of the evidence. Dilling, 263 Ill. App. 3d at
195, 635 N.E.2d at 593; Rokeby-Johnson, 230 Ill. App. 3d at 318,
594 N.E.2d at 1197; Finnegan, 205 Ill. App. 3d at 25, 562 N.E.2d
at 994.
The seminal case for this second approach--indeed, the only
authority cited by the other cases espousing the second approach-
-is Finnegan. Finnegan, in turn, relies upon the reasoning of
Professor Michael in his treatise on Illinois procedure (R.
Michael, Illinois Practice (1989)) (Michael). Professor Michael
points out that Kutner and the other cases which hold that the
plaintiff need merely establish a prima facie case are based
solely on federal precedent. According to Michael "[t]he
federal cases are, however, clearly inapplicable because of a
difference in federal procedure." 3 Michael  6.2, at 61. See
Finnegan, 205 Ill. App. 3d at 25, 562 N.E.2d at 994. Finnegan
observed, in reliance on Professor Michael, that whereas in
federal courts personal jurisdiction is only preliminarily
addressed before trial but may be fully litigated on the merits
at trial (similar to summary judgment),
"in Illinois, the special appearance (Ill.Rev.Stat.
1989, ch. 110, par. 2-301) is a defendant's 'sole
opportunity to defeat the jurisdiction of the court.'
(3 R. Michael,  6.2, at 61.) We agree with Professor
Michael's observation that:
'To extend [the federal] rule to Illinois * *
* is, at best, to reverse the burden of
proof, and at worst [to] deprive the
defendant of the constitutional right to due
process of law by holding the defendant
subject to jurisdiction whenever there is a
conflict in the evidence without resolving
that conflict.' (3 R. Michael,  6.2, at
61.)" (Omissions in original.) Finnegan,
205 Ill. App. 3d at 25, 562 N.E.2d at 993-94.
For the reasons expressed by Professor Michael and
amplified in Finnegan, we believe that as between the first
approach, adhering to the prima facie test, and the second
approach, which would require weighing the evidence, the latter
is by far the more sensible and better reasoned. See Finnegan,
205 Ill. App. 3d at 25, 562 N.E.2d at 993-94. The latter
approach also finds clear support in the plain language of
section 2-301 of the Code. The statute requires the circuit
court to consider "any evidence adduced upon disputed issues of
fact" in ruling on objections to personal jurisdiction. 735 ILCS
5/2-301(b) (West 1996). And section 2-301 unequivocally implies
that the circuit court may resolve issues of fact in ruling on
such a motion, by virtue of its provision that "[n]o
determination of any issue of fact in connection with the
objection is a determination of the merits of the case or any
aspect thereof." 735 ILCS 5/2-301(b) (West 1996).
We note that the prima facie standard would not be wholly
discarded under the Michael/Finnegan approach. When the
jurisdictional issue may be completely resolved from the face of
the affidavits and pleadings, analysis need not go beyond the
prima facie standard. However, this will only be the case when
the relevant assertions are uncontradicted. In other cases, the
proper mode of jurisdictional analysis will be a two-step process
incorporating the tests from both lines of cases. See 3 Michael
10.4 at 123 ("[i]f the court can decide the issue from this
material [the pleadings or other documents on file or affidavits]
without weighing the affidavits, it may. If not the court has
authority to hold an evidentiary hearing"); Stein, 296 Ill. App.
3d 520, 695 N.E.2d 518.
As noted above, the statute clearly envisions the circuit
court making findings of fact in determining jurisdictional
issues. See 735 ILCS 5/2-301(b) (West 1996). Such findings of
fact would be made after a hearing, at which the circuit court
would receive the "evidence adduced upon disputed issues of
fact." See 735 ILCS 5/2-301(b) (West 1996). But obviously,
there would be no need for a hearing if the party asserting
jurisdiction could not establish even a prima facie case.
Accordingly, it would appear that the first question in ruling on
a special appearance is whether plaintiff has established a prima
facie case of jurisdiction through the untraversed pleadings,
documents and affidavits. In making this determination, the
circuit court must resolve in favor of the plaintiff (or other
party urging jurisdiction) any conflicts between affidavits.
Concomitantly, at this juncture the court must also accept as
true any facts averred by the defendant (or other party opposing
jurisdiction) which have not been contradicted by an affidavit
submitted by plaintiff. See Kutner, 96 Ill. App. 3d 243, 421 N.E.2d 231 (affirming circuit court's determination that Illinois
had no jurisdiction over defendant because defendant's affidavit
alleged facts establishing that plaintiff had no prima facie case
of jurisdiction). If plaintiff has failed to establish a prima
facie case, the inquiry is at an end and the defendant's motion
should be granted. On appeal from an order dismissing a case on
this basis our standard of review would be de novo, as it would
involve "solely the application of law to undisputed facts."
Farmers State Bank v. Neese, 281 Ill. App. 3d 98, 101, 665 N.E.2d 534, 536 (1996); see also Nokomis Quarry Co. v. Department of
Revenue, No. 5-97-0216 (March 25, 1998) (de novo standard of
review applies to administrative agency's determination when
facts are undisputed); People v. Bascom, 286 Ill. App. 3d 124,
126-27, 675 N.E.2d 1359, 1361 (1997) (where facts and witness
credibility are uncontroverted, a motion to suppress is reviewed
de novo).
However, in most cases a determination that plaintiff has
established a prima facie case of jurisdiction will not end the
inquiry. If the trial court finds plaintiff has established a
prima facie case, it must next determine whether there are any
controverted jurisdictional facts. If so, it must hold a hearing
to resolve these facts. Stein, 296 Ill. App. 3d 520, 695 N.E.2d 518 (if there are disputes regarding issues of fact which
"determine whether the court has pesonal jurisdiction, the trial
court must hear the testimony, evaluate its credibility, and
resolve any material conflicts in the evidence"). Such a hearing
should be granted in any case in which facts averred in the
defendant's affidavits contradict the relevant facts in
plaintiff's affidavit, i.e., where defendant has established a
prima facie case of a lack of jurisdiction. In those cases in
which the circuit court holds a hearing, and determines issues of
fact, we will reverse the circuit court's result only if it is
against the manifest weight of the evidence. Stein, 296 Ill.
App. 3d 520, 695 N.E.2d 518.
Thus, whether plaintiff must establish merely a prima facie
case or must establish jurisdiction by a preponderance of the
evidence depends on the phase of the circuit court's analysis.
First, the circuit court must determine whether plaintiff has
established even a prima facie case for jurisdiction, resolving
all conflicts in his favor. If plaintiff cannot meet even this
minimal burden, there is no need to make any further inquiry.
Nor is there any reason to proceed further if defendant has
failed to contradict plaintiff's prima facie case. However, if
there exists on the face of the affidavits a factual dispute,
which if resolved in defendant's favor would preclude the
imposition of jurisdiction, the court "must hear the testimony,
evaluate its credibility, and resolve any material conflicts in
the evidence" (Stein, 296 Ill. App. 3d 520, 695 N.E.2d 518),
requiring plaintiff to prove jurisdiction by a preponderance of
the evidence.
This mode of jurisdictional inquiry in the circuit court and
on appeal is in closest conformity with the statute (735 ILCS
5/2-301 (West 1996)) and the requirements of due process. It is
also consistent even with the majority of the cases which purport
to espouse a prima facie standard for establishing jurisdiction.
In four of those cases plaintiff failed to establish a prima
facie case; accordingly, there was no need to reach the second
step in what we conclude to be the complete analysis. See
Alpert, 235 Ill. App. 3d 452, 601 N.E.2d 1031; Gordon, 148 Ill.
App. 3d 275, 498 N.E.2d 718; Professional Group Travel, 136 Ill.
App. 3d 1084, 483 N.E.2d 1291; Kutner, 96 Ill. App. 3d 243, 421 N.E.2d 231. Two other cases determined that defendant was
subject to jurisdiction based on uncontroverted facts. D.S.
America, 274 Ill. App. 3d 643, 654 N.E.2d 472; Cox, 271 Ill. App.
3d 144, 648 N.E.2d 271. In these cases also, as noted above,
there was no need for a hearing. One of the remaining cases was
reversed by the supreme court. Wiles, 152 Ill. App. 3d 782, 504 N.E.2d 942, rev'd, 125 Ill. 2d 144, 530 N.E.2d 1382.
The remaining cases espousing the prima facie standard do
appear to have exercised jurisdiction over nonresidents
notwithstanding the presence of averments in the nonresidents'
affidavits which, if true, would have negated the residents'
prima facie cases. See Japax, 186 Ill. App. 3d 656, 542 N.E.2d 792 (assertions by non-resident parent company that it did not
control its resident wholly-owned subsidiary nor did it ever
contract in Illinois for advertising or decide where its products
would be sold); Mandalay, 141 Ill. App. 3d 891, 491 N.E.2d 39
(assertions by non-residents that their agent came to Illinois
"only at the specific request of plaintiffs"); Financial
Management Services, 130 Ill. App. 3d 826, 474 N.E.2d 1297
(assertions by non-residents that their activities were conducted
in their corporate capacities and were thus subject to protection
under the fiduciary shield doctrine). With the analysis employed
in these cases we simply disagree, for the reasons stated above.
Due process requires a non-resident defendant to have the
requisite connection with the forum state (the standard for which
will be discussed below); it is not enough that the plaintiff
simply allege that defendant has that connection when defendant
states that the facts are otherwise. It is not acceptable to
require a nonresident to defend itself against a claim when it
has alleged facts which, if true, would negate jurisdiction,
without determining what the facts are. See 3 Michael 6.2, at
61 (to apply the prima facie standard in Illinois "is, at best,
to reverse the burden of proof, and at worst [to] deprive the
defendant of the constitutional right to due process of law by
holding the defendant subject to jurisdiction whenever there is a
conflict in the evidence without resolving that conflict"). Such
a rule would allow a plaintiff to hale any defendant into court
simply by filing one perjurious affidavit, which cannot be
condoned. The two-step process which we have set out protects
both the due process interests of non-resident defendants and
Illinois courts' interests in judicial economy, where the latter
can be served without sacrificing the former.
Finally, we recognize that in Rollins v. Ellwood, 141 Ill. 2d 244, 565 N.E.2d 1302 (1990), the circuit court decision under
review had analyzed the issue of personal jurisdiction by the
Kutner prima facie test and our supreme court did not explicitly
criticize that approach. Rollins, 141 Ill. 2d at 255, 261, 565 N.E.2d at 1307, 1310. However, Rollins is reconcilable with our
analysis for the same reason as Alpert, Gordon, Professional
Group Travel, and Kutner: Rollins found that the plaintiff had
not even established a prima facie case of jurisdiction.
Rollins, 141 Ill. 2d at 262, 565 N.E.2d at 1310 (plaintiff
"failed to present any evidence establishing" the relevant
facts). There was no need for the court to determine what
plaintiff's burden was, because the plaintiff failed to meet even
the most minimal burden. Consequently, we do not read Rollins as
endorsing an extreme prima facie approach, where a prima facie
case ends the analysis, even if the facts are controverted.
II. SUFFICIENCY OF JURISDICTIONAL CONTACTS
Nonpublishable material under Supreme Court Ruled 23
omitted.

CONCLUSION
For the reasons above stated, we reverse the order of the
circuit court dismissing the action and quashing service on J &
B, and remand for further proceedings.
Reversed and remanded.
CAHILL and BURKE, JJ., concur.

[fn1]By "uncontradicted" we mean uncontradicted by an
affidavit filed by defendant. Statements in plaintiff's
pleadings which defendant does not controvert in his affidavit
are taken as true. However, where defendant's affidavit contains
factual assertions which vary from those in the complaint, the
affidavit controls. Finally, however, if plaintiff files a
counter-affidavit which contains statements at odds with any
statements in defendant's affidavit, the assertions in
plaintiff's counter-affidavit control. Kutner, 96 Ill. App. 3d
at 247-48, 421 N.E.2d at 235.
[fn2] As Michael observes, the cases "cite only each
other or federal cases." 3 Michael  6.2, at 61.
[fn3] As an aside, we note that a special appearance
is not, strictly speaking, the "'sole opportunity to defeat the
jurisdiction of the court'" (Finnegan, 205 Ill. App. 3d at 25,
562 N.E.2d at 993, quoting 3 Michael 6.2, at 61). A party may
also contest jurisdiction by refusing to participate in a suit
even to the extent of filing a special appearance, then
collaterally attacking any default judgment entered against it.
See R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304,
[fn4] The second issue to be addressed is whether TCA
did in fact establish a prima facie case of personal jurisdiction
over J & B. We conclude that TCA did establish a prima facie
case. Because of the page limitations imposed under revised
Supreme Court Rule 23 (166 Ill. 2d R. 23), we are compelled to
delete our discussion of this issue from the published portion of
this decision. However, our discussion of this issue is part of
the unpublished portion of this decision.
In brief summary for the benefit of the reader of the
published decision, we conclude that TCA established personal
jurisdiction over J & B through the affidavit of Schelthoff.
The operative facts are that J & B, through Bovell, affirmatively
initiated an ongoing business relationship of approximately 19
months duration by contacting Schelthoff in Illinois; Bovell
expressed interest in J & B becoming TCA's sole distributor in
the northeast; Bovell repeatedly placed purchase orders by
placing telephone calls to an Illinois telephone number; and J &
B received a 30% discount on at least some of its orders. These
factors combine to establish that J & B "created 'continuing
obligations' between [it]self and residents of" Illinois, making
it "presumptively not unreasonable to require [it] to submit to
the burdens of litigation in that forum as well." See Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 473-76, 85 L. Ed. 2d 528,
541-43, 105 S. Ct. 2174, 2183-84 (1985). We also find that J &
B's attempt to portray itself as a mere "passive purchaser" (see
Chalek v. Klein, 193 Ill. App. 3d 767, 550 N.E.2d 645 (1992)) is
unavailing, primarily because of the ongoing nature of the
relationship between TCA and J & B. A full, unabridged text of
this decision is on file with the clerk of this court under
Docket No. 98-0252.