No. 3--07--0168
_________________________________________________________________
Filed March 11, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
RANDOLPH M. GORDON, ) Appeal from the Circuit Court
) of the 13th Judicial Circuit,
Plaintiff-Appellant, ) Grundy County, Illinois,
)
)
v. ) No. 04--L--14
)
VICTORIA GORDON, ) Honorable
) Robert C. Marsaglia,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________
JUSTICE SCHMIDT delivered the opinion of the court:
________________________________________________________________
The plaintiff, Randolph M. Gordon, filed suit against his
former spouse, Victoria Gordon, alleging that she either
intentionally or negligently inflicted emotional distress. The
trial court dismissed the complaint for want of personal
jurisdiction over the defendant. The plaintiff appeals, arguing
that the trial court had personal jurisdiction under the long-arm
statute (735 ILCS 5/2--209 (West 2004)). We affirm.
FACTS
On August 26, 2002, the plaintiff and the defendant divorced
in Florida. A Florida trial court entered a final judgment,
dissolving the marriage and incorporating the parties' marital
settlement agreement. The marital settlement agreement dealt
with the parties' parental rights and responsibilities concerning
their three children and the distribution of their property. The
final order also gave the Florida trial court jurisdiction over
the enforcement of the provisions of the marital settlement
agreement.
On March 10, 2004, the plaintiff filed suit, alleging that
the defendant had committed the tort of intentional infliction of
emotional distress. The complaint stated that the plaintiff
resides in Morris, Illinois, and that the defendant resides in
Ocoee, Florida. It alleged that some of the tortious conduct
occurred in Grundy County, Illinois.
The complaint referenced the parties' marital settlement
agreement and alleged that the defendant refused to comply with
its terms so as to harass and embarrass the plaintiff and hinder
his relationship with his children. The amended complaint
specifically alleged that the defendant: (1) caused the City of
Ocoee to send a water bill for her house to the plaintiff in
Illinois; (2) failed to deliver a car title to the plaintiff
within 10 days of the entry of the marital settlement agreement;
(3) failed to deliver a quitclaim deed for the parties' Illinois
townhouse to the plaintiff for a period in excess of one year,
when the marital settlement agreement required delivery within 10
days of its entry; (4) caused a law firm to contact the plaintiff
about the payment of a note when the defendant failed to provide
2
the plaintiff with a deed that would have allowed him to
refinance and pay the defendant; (5) failed to provide the
plaintiff with a mortgage release even though she was paid 90
days earlier, thereby slandering the title to plaintiff's
Illinois property; (6) turned off the ringer on the telephone to
prevent the plaintiff from having reasonable contact with his
children; (7) failed to inform the children that the plaintiff
called; (8) discouraged or prohibited the children from calling
the plaintiff; (9) failed to provide the plaintiff with the
children's school calender or his son's baseball schedule as
required by the marital settlement agreement; (10) caused the
children to call the plaintiff to solicit money for school trips
even though the defendant received child support for such
purposes; (11) refused to allow the plaintiff access to the
children on weekends when the children would be accessible to the
plaintiff; (12) failed to consult with the plaintiff about their
daughters' braces although his consent is required by the marital
settlement agreement; (13) failed to notify the plaintiff about
the children's doctor's appointments as required by the marital
settlement agreement; (14) removed items from plaintiff's
grandfather's chest in violation of the marital settlement
agreement; (15) failed to give the plaintiff furniture as
required by the marital settlement agreement; and (16) on several
occasions, called the plaintiff's home telephone and attempted to
3
access messages on plaintiff's answering machine.
On April 14, 2004, the defendant filed a motion to dismiss
the complaint for lack of personal jurisdiction pursuant to
section 2--301 of the Code of Civil Procedure (Code) (735 ILCS
5/2--301 (West 2004)). The plaintiff voluntarily dismissed his
original complaint and subsequently filed an amended complaint.
The amended complaint added the claim that the defendant
negligently inflicted emotional distress and alleged that the
defendant had committed additional acts giving rise to his claims
for emotional distress. It further alleged that the defendant:
(1) obtained the plaintiff's e-mail address and sent an e-mail to
the plaintiff in Illinois for the sole purpose of harassing him
by showing him that she obtained his e-mail address; (2) e-mailed
the plaintiff's sister-in-law a harassing e-mail, using the same
alias that she used to harass the plaintiff's friend; and (3) on
July 22, 2004, called the Department of Children and Family
Services (DCFS) and caused it to start an unfounded investigation
so as to harass the plaintiff. The defendant's conduct has
allegedly caused the plaintiff to lose both sleep and appetite
and to seek medical care.
On October 1, 2004, the defendant filed a motion to dismiss
the amended complaint for lack of personal jurisdiction pursuant
to section 2--301 of the Code (735 ILCS 5/2--301 (West 2004)).
On June 21, 2005, the trial court granted the defendant's motion
4
to dismiss, finding that the defendant's alleged acts did not
confer jurisdiction on Illinois courts. On July 20, 2005, the
plaintiff filed a motion to reconsider; the trial court denied
the motion on February 15, 2007.
Plaintiff appeals.
ANALYSIS
On appeal, the plaintiff argues that the trial court had
specific personal jurisdiction over the defendant under numerous
but unstated subsections of section 2--209(a) of the long-arm
statute (735 ILCS 5/2--209(a) (West 2004)) or, in the
alternative, under the catchall provision of the long-arm statute
(735 ILCS 5/2--209(c) (West 2004)). We review de novo the trial
court's determination of jurisdiction because it is based solely
on documentary evidence. Kostal v. Pinkus Dermatopathology
Laboratory, P.C., 357 Ill. App. 3d 381, 827 N.E.2d 1031 (2005).
The catchall provision of the long-arm statute provides that
a trial court may exercise 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
2004). The enactment of the catchall provision made the long-arm
statute coextensive with due process requirements of the Illinois
and United States Constitutions. Keller v. Henderson, 359 Ill.
App. 3d 605, 834 N.E.2d 930 (2005). As such, "the long-arm
statute is satisfied when due process concerns are satisfied,
5
regardless of whether the defendant performed any of the acts
enumerated in the long-arm statute." Keller, 359 Ill. App. 3d at
612, 834 N.E.2d at 935. Therefore, our personal jurisdiction
analysis will focus solely on whether the plaintiff has shown
that federal and Illinois due process requirements have been
satisfied.
An assertion of specific personal jurisdiction satisfies
federal due process guarantees so long as the defendant has
sufficient "minimum contacts" with the forum state such that
maintaining an action in the forum state does not offend
"'traditional notions of fair play and substantial justice.'
[Citation.]" International Shoe Co. v. Washington, 326 U.S. 310,
316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158 (1945). Minimum
contacts must be based on acts by which the defendant
purposefully avails himself of the privilege of conducting
activities within the forum state, thereby invoking the benefits
and protection of its laws. Burger King Corp. v. Rudzewicz, 471
U.S. 462, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985). The
defendant's conduct must reflect a connection to the forum state
such that the defendant would reasonably anticipate being haled
into that state's court. World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980). Thus, a
trial court must determine whether: (1) the nonresident defendant
has sufficient minimum contacts with the forum state; (2) the
6
cause of action arises from these contacts; and (3) it is
reasonable to require the defendant to litigate in the forum
state. Viktron Ltd. Partnership v. Program Data Inc., 326 Ill.
App. 3d 111, 759 N.E.2d 186 (2001).
The plaintiff argues that defendant engaged in a course of
conduct to inflict emotional distress. However, every one of the
defendant's alleged acts or, more correctly, failures to act that
form this course of conduct in the original complaint involve
matters related to the parties' divorce and marital settlement
agreement. The defendant's acts, or lack thereof, concerning the
marital settlement agreement never reached into Illinois and were
only related to Illinois in that her failure to act affected the
plaintiff, who resides in Illinois. The additional two acts
alleged in the amended complaint--an e-mail and a telephone call
to DCFS--did result in some contact in Illinois, but we find them
insufficient to require the defendant to litigate in Illinois.
In determining whether it is reasonable to require a
defendant to litigate in a forum state, a trial court must
consider: (1) the burden on the defendant; (2) the forum state's
interest in adjudicating the dispute; (3) the plaintiff's
interest in obtaining convenient and effective relief; (4) the
interstate judicial system's interest in obtaining the most
efficient resolution of the action; and (5) the shared interests
of the several states in advancing fundamental social policies.
7
World-Wide Volkswagen Corp., 444 U.S. 286, 62 L. Ed. 2d 490, 100
S. Ct. 559.
Here, plaintiff's complaints make it apparent that the
plaintiff is making a thinly veiled attempt to have an Illinois
court enforce the Florida court's order through this tort action.
We understand that in the real world emotional distress is
involved in virtually every dissolution of marriage action.
However, the Florida trial court that dissolved the parties'
marriage retained jurisdiction over the enforcement of the
provisions of the marital settlement agreement in its final
order. The defendant could not have reasonably expected to be
haled into an Illinois court to resolve matters related to her
alleged failure to comply with the terms of the marital
settlement agreement incorporated within the order. The Florida
trial court has a greater interest in resolving any dispute
related to its orders. Accordingly, we find that the plaintiff
has failed to show that an Illinois court's assertion of personal
jurisdiction in this case would be proper.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Grundy County is affirmed.
Affirmed.
HOLDRIDGE and WRIGHT, JJ., concur.
8
.
9