to dash two zero nine eight two with permits in illinois court to exercise personal jurisdiction plan of foreign defendant has committed tortious act within the state of illinois and section two dash two zero nine a seven permissible under the long term statute it still has to also be permissible under the due process clause and we of course admit that the jurisdiction is appropriate both under the long arm statute and that it  of the long arm statute i'd like to discuss is to a nine a seven which of course concerns the making or performance of any contract extension connected with the state of illinois and to determine whether this applies the court has to look at a number of factors including who initiated the transaction where it was negotiate where the contract was formed and there is some precedent that sick chast that the state where the last act necessary to form the contract is also court element and i think it's important to distinguish between where the contracts for it and where it's to be performed and in this case the record shows that while it's true that plaintiff initiated the transaction it was negotiated in both illinois  so in this case ok the contract was negotiated both in illinois and in florida and the last act which was necessary to turn it into a contract was mr kirk involved acceptance of mr lars offer and that occurred we also have mr kirk and all sending money from illinois bank to laurie accepting money from the illinois bank so because of those factors all coming together that is why this is a contract which is substantially connected with the state of illinois actions to have an effect in and here the answer to that is clearly yes the plaintiff is alleging that the defendant intentionally misrepresented the model year and other material facts about the excavator in order to induce the plaintiff to buy it the defendant knew they were dealing with an illinois customer they knew that the excavator would end up here and that any injury from their misrepresentation would be registered here in illinois and again mr laro the president of mexico tractor communicated with mr perkins was here to illinois as part of this fraudulent scheme and if the fact that this was a fraudulent scheme that he was making the state affirmative statements in order to induce an illinois warning that it might be hailed into illinois court because of action grows out of the defendant's fraudulent contacts with the state of the way and it's reasonable to require the defendant to litigate here in illinois as far as the minimum contact concerned the key here is that the communications at the plate the place of in the defendant had from the defendant and they were aimed at illinois they were aimed at an illinois resident with the goal of getting this illinois resident to do something do you mean the communications from the defendant there the specific communication i'm talking about after it get it's and we can see that the plaintiff is the one who made initial contact with the defendant but the defendant then made affirmative communications affirmative representations to the plaintiff to say yeah i've got the tractor come by this one and even if you accept mr lara's version of events which you go after you in probably shouldn't because they do conflict with the pla s he claims that he again when he realized he didn't have the two thousand and four tractor that you reached out to the plaintiffs and said oh but i've got this two thousand and one one anyway so even if you accept his version of events you still have him affirmatively reaching out to the state of illinois and saying hey i want to do business with you i want to make this transaction happen we submit that that was a fraudulent communication and that the fact that it was fraudulent means that he had it implicates illinois policy interest in protecting its residents from from fraud and from misrepresentations and from unfair business dealings i think that one case there's a united states supreme court case that's i mean the facts of course are not identical because it was a defamation case but that's called her versus jones and in that case even the supreme court held that even though that the tortious acts themselves were committed entirely within the state of florida because that's where the territory article was written because it was aimed at somebody else in california because it had an effect on them in california california still could exercise personal jurisdiction over its florida defendants we believe that this is a similar situation you've got somebody down florida is doing something in florida if it's targeted at illinois resident involve themselves in their net communication knowing the person they're buying from is in a far distant state knowing the equipment is in a far distant state knowing any valuation or appraisal of it are looking at it is going to have to occur in the far distant state and knowing they're going to have to send someone after it to get it and bring it back to one on i mean that sounds like targeting as well well i think to me is not the right word to use but i mean it's very specific hey i'm responding to your company's internet circulation and saying i want this crap you know you know we can talk about price and so forth but i want this or this extreme i think that's a fair question and i suppose my response to that is that purposeful is a two way street and so if our folks were trying to purposefully avail themselves of this well your honor i think that it might if there were still communications between again expo tractor down in florida and in our over here in illinois where expo tractor was making for a bit of representations about the quality of the somebody calls me and says do you have such and such a book and i say yes i think it's a first edition if i submitted to the jurisdiction in massachusetts well your honor i don't know that that to airport paperback but you're saying it's first then you you know going online finding a picture of the first edition sending it to the guy telling him that it's a first edition and then in the accepting her offer those are the kind of steps that we're talking about ultimately what the cause of action is because we're talking i mean we're not talking about it or contract case where you know one person or form we're talking about something where he didn't sell them what he said he was going to sell so because you've got t resubmit the minimum contacts exist because the action arises from those minimal but fraudulent contact and there's nothing to suggest it's not reasonable to require expert factor to litigate here he didn't say anything in his affidavit that it was some kind of our shipper get him to come up here and explain himself there's nothing in his act that says that furthermore the machine itself is here in illinois for inspection i don't know if the trial court would want to go out  excavator or that would be helpful but that is one of the factors for whether it's reasonable to require someone to litigate in a particular place in the condition it was i don't know if you could turn but the other factor is at least two of the key witnesses in this case are going to be mr dahl and mr rights or mr reed says the fellow that he had actually go get the tractor both of those men's affidavit mean maybe it's a preemptive strike your honor finally my last argument for why personal jurisdiction should attach in this case and i'll keep this brief again as we explain more further in her brief it's it's in illinois communications between expo tractor and b in our construction it was conceded i mean appellant that in this case it was the in our construction that looked at it global web site that was not targeted towards white residents in any way shape or form there has been no allegations of that and it was also the plaintiff in this case that went to florida to pick up this piece of equipment the whole negotiation process involved some it seems as though there's discrepancies as what it involved but it was following e mail and that can be conceded by both parties that yes the plaintiff called picked up the phone and contacted a defended this case who is if or is a florida corporation with ninety eight percent of its sales outside of the united states so in this circumstance the foreign corporation has no employees no no offices here has never even traveled to l a and did nothing very true that the plaintiff wired money from illinois to florida but that doesn't affect my client my client did it didn't matter where the money was coming from it was going to florida where they were located they had had to do nothing under the contract  also important there have been many allegations it was clear fraud and they had no idea except the serial number that is identified on the invoice it is uncontested that specifically identifies a two thousand and one x excavator it is standard practice in the business fine machinery like this that you receive a serial number so that you can identify exactly that excavator you're buying because other than that it's just an advertisement that's on the internet or in the newspaper or any other advertising it's  important also to know that the fourth district has repeatedly and consistently identified what is necessary in this in this setting under age two and a seven eight seven contract part of this excel energy is the fourth district one thousand nine hundred two case that involves and i believe is the controlling precedent in this case today and involved oklahoma equipment oil and gas equipment contacted the defendant after recess after looking at an advertisement on a close at a national advertising that was not specifically directed telenor way conversations occur between the parties over the phone play have traveled to the defendant's location in oklahoma to retrieve equipment came back and realized that the equipment was not according to leslie it was not what they had purchased in that case the fourth district did not even look at eighty two or eighty seven sold out but we've got the cell phone over here so now you've taken it out of the realm of that simple wire initiating contact with the seller and saying ok i want that that's product that he was responding to in terms of the advertisement has been sold it's no longer there now you have the seller promoting another product that he has now you do have this interplay going on and it's not responding to in terms of the machinery creditor and your client is trying to sell this a different product now isn't there now some contract negotiation going on and something being initiated by your client as opposed to the body and i would respond to that and i believe this is just hard to think of a shame is that it's still that well i think certain piece of equipment now and i believe my client was simply responding to somebody directing their activities to him in florida and he was saying hey paul about this we have one that's similar it's a two thousand and one i can give it to you for this price i find that to be very an atlas to be contacting the defendant neck a saying i want this for fifty thousand even though it's you know on the market for sixty it's just part of negotiations it to me it doesn't it does not matter what the actual clinton was that they were negotiating over the phone it's the activities that the plaintiff did directing towards florida it's not is it in this circumstance the defendant and my client was saying all you know i have something in illinois that's a two thousand and one that you can have there in illinois and you can pick it up there he was simply hav with the plaintiff and venus one businessman saying i don't have that product but i do have something similar ok i was sold that excavator but i've got some property over here that would make a nice get away home for you you want to the thing that's important is what the defendant did to direct his activities to a specific allegory president and what he did in an elegant way it didn't matter if it was a two thousand or two thousand and one in this circumstance it doesn't change the fact the plaintiff is the one that contacted the defendant the plaintiff is the one that went to the defendant's residence in florida to retrieve the equipment and also i think it's important to note that the communications that occurred between the plaintiff and defendant the fourth district in excel the president in illinois in those circumstances it's also important to distinguish the only two cases that have been cited by the plaintiff in this case one is a fourth district one nine hundred seventy four case that was before the long arm sat circumstance had even been inactive and in those cases the defendant directed actions in illinois specifically the defendant initiated the contract the part of the defendant apply for a loan and went away the lease was pledged and the money was the case that she can rely on for this to a tort and a contract if there's a different there's a different standard that the court has to look at if it's a tort as compared to a contract case it isn't it's still purpose stand you just created another basis in order to find for and that's a setting which was the contract the substantial connection to a contract and the court found in that case that yes everything was enough that the plaintiff did bring himself to excel energy case as well as the polgar case in boulder as of two thousand and seven second district that relies upon excel energy as well in its holding in the idea that when a plaintiff initiate a contract and contemplates performance in that defendant's state and the defendant does not do anything other than enter into a contract with an illinois resident it's not enough under specific for personal jurisdiction over that nonresident defected either under the long term statute or or more importantly under due process so interview made the point the fourth district made the point excel energy that there is clearly not enough when the plaintiff does all the actions towards a resident state such as florida to be able to  nonresident defendant here in illinois and i would also make a point to come out with that the xcel energy case it was discussed in one of the cases helicarrier that was cited by the plaintiff in this case and in that case the  was a consumer fraud case similar to the one that we're here on today and in public in what was different was the defendant actually did local direct media to elevate resident specific direct mail and advertisements the defendant also contract didn't ship the products to illinois this is distinctly different because this person sought out and this defendant sought out and purposely availed himself of illinois by looking directly for only presidents and shipping their products directly to illinois once again it is very clear by the affidavits that the plaintiff in this case is conceding the fact that they initiated the contract that the contemplation and performance of the contract was only going to occur in florida there was nothing that the defendant had to do in stated the law of florida will govern this agreement and so in both of those opinions when the second district and the fourth district respectively are look at the facts of those cases they discussed how those choice of law for vision's did affect their decision saying there was no personal jurisdiction and in this case the parties didn't have a written contract such as the ones in boulder and it is really housing so there wasn't choice of locker vision as far as excel energy is concerned i believe that in that opinion the court goes into some detail about how the plaintiffs in the record had attached a list of all of the phone calls that they had  discussed how that was as you were just discussing our theory one way street communication in this case you've got more back and forth than was evidence in excel energy again in excel energy the plaintiffs said well we have a bunch of