ILLINOIS OFFICIAL REPORTS

Appellate Court

Wiggen v. Wiggen, 2011 IL App (2d) 100982

Appellate Court

Caption

PATRICIA A WIGGEN, Plaintiff-Appellant, v. ANNA TEWELL

WIGGEN,Defendant (BrianRoughton and Kayla Roughton, Individually

and d/b/a Roughton Galleries, Inc., and Roughton Galleries, Inc., a Texas

Corporation, Defendants-Appellees).

 District & No. Second District

Docket No. 2-10-0982

Filed July 27, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

A complaint against Texas defendants alleging conversion, fraud and

replevin in connection with the sale of a painting was properly dismissed

for the lack of personal jurisdiction, since defendants did not have

continuous and systematic contacts with Illinois, they had no office in

Illinois, there was no evidence of direct marketing to Illinois residents,

they did not initiate the transaction, they never entered Illinois, and they

responded to solicitations, and, therefore, defendants lacked sufficient

minimum contacts with Illinois to allow Illinois courts to exercise

personal jurisdiction over them.

Decision Under 

Review

Appeal from the Circuit Court of Du Page County, No. 09-AR-2583; the

Hon. Bruce R. Kelsey, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Lisa M. Giese and Christopher J. Maurer, both of Anderson &

Associates, P.C., of Wheaton, for appellant.

Bradley N. Pollock and Adam C. Kruse, both of Walsh, Knippen, Knight

& Pollock, Chtd., of Wheaton, for appellees.

Panel PRESIDING JUSTICE JORGENSEN delivered the judgment of the

court, with opinion.

Justices McLaren and Bowman concurred in the judgment and

opinion.

OPINION

¶ 1 The plaintiff, Patricia A. Wiggen, a resident of Illinois, appeals the trial court’s order

dismissing her complaint alleging conversion, fraud, and replevin against defendants Brian

and Kayla Roughton and Roughton Galleries, Inc. (collectively, the Roughtons), residents

of Texas, for lack of personal jurisdiction. Another defendant, Anna Tewell Wiggen, an

Illinois resident, remains as a party to the action. We affirm.

¶ 2 I. BACKGROUND

¶ 3 This appeal arises out of a transaction for the July 2006 sale of a painting from Anna to

the Roughtons, who own an art gallery in Texas. At the time of the sale, Anna was married

to Patricia’s brother, but they were divorced in October 2008. In August 2009, Patricia

demanded the return of the painting and filed suit, alleging that she was the actual owner of

the painting and that it was sold without her consent. The Roughtons were added as parties

in January 2010.

¶ 4 In April 2010, the Roughtons moved to dismiss, arguing that the court lacked personal

jurisdiction over them. Affidavits attached to the motion showed that, in December 2005,

Anna called the gallery and spoke to Brian. Anna told him that she was interested in selling

a painting on behalf of her family and inquired whether the Roughtons would be interested

in purchasing it. Overthe course of the next six months, Brian spoke with Anna on the phone

and exchanged e-mail correspondence with her about the painting. Kayla was not involved

in the transaction and never spoke to Anna or had any other form of contact with her.

¶ 5 On July 12, 2006, Anna called Brian, offering to sell the painting to the Roughtons for

$40,000, and Brian accepted. That day, he sent to Anna a check, along with a box in which

to ship the painting. The box and check were shipped from Texas and sent to Illinois. On

September 14, 2006, the Roughtons sold the painting.

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¶ 6 Brian remained in Texas during the entire transaction. He never traveled to Illinois, and

Anna never went to Texas. The Roughtons have no physical business presence in Illinois and

they never directed any advertisements or solicitations to Anna. They do not advertise or

otherwise solicit business in Illinois, other than by maintaining a website and advertising in

several national art magazines, trade journals, and websites.

¶ 7 On May 19, 2010, a hearing was held, and Patricia asked the court to take judicial notice

of e-mails to show that Brian initiated the sale. Patricia argued that, because the contract was

performed in Illinois, the court had personal jurisdiction over the Roughtons. The court did

not take notice of the e-mails, because they were not attached to any filed court papers and

had not been properly put before the court, but the court agreed that, on the face of the

materials before it, the contract was completed in Illinois. Based on that determination, the

court found that, “at this point in time on the surface,” there was sufficient contact with

Illinois to deny the motion to dismiss. The court stated its assumption that, if other facts

came out later, counsel would make an appropriate motion.

¶ 8 On June 18, 2010, the Roughtons filed a motion to reconsider, arguing that the court

erred in its application of the law. The Roughtons also noted that the court had referenced

the possibility of additional facts arising and that material from Anna was not considered at

the hearing on the motion to dismiss.

¶ 9 The Roughtons attached to the motion an affidavit from Anna, stating that she initiated

contact with the Roughtons about selling the painting. Anna averred that, over the course of

six months, she communicated with Brian by e-mail and telephone and made various

representations about the condition of the painting. Through these discussions, Anna

understood that any purchase of the painting was contingent upon its receipt and acceptance

to ensure that it did not exhibit too much “cracklier.” On July 11, 2006, Anna called Brian

and asked whether he agreed to purchase the painting. Brian accepted, contingent upon his

inspection of the cracklier. Brian sent Anna a check for $40,000 and a box for shipping of

the painting. Anna sent the painting and held the check until Brian inspected the painting and

approved of its condition. Anna averred that her only contact with the Roughtons was at her

initiation or request and that she did not expect that the Roughtons would have to come to

the Illinois courts in regard to any dispute over the painting.

¶ 10 Also attached to the motion to reconsider were e-mails sent between Anna and Brian

showing that Brian expressed concern about the cracklier and told Anna that he would send

a box for shipping along with a check. Then, he would inspect the painting upon receipt and

either he would ship it back the next day if it was not acceptable, or, if it was acceptable,

Anna could cash the check. Anna replied that she would accept Brian’s terms.

¶ 11 Patricia filed a response to the motion, arguing that the motion was improper because

there was no newly discovered evidence, change in the law, or error in the court’s application

of the law. On July 21, 2010, the parties were allowed additional time to supplement their

briefs in order to address MacNeil v. Trambert, 401 Ill. App. 3d 1077 (2010), a case decided

on June 18, 2010.

¶ 12 A hearing on the matter was set for September 1, 2010. There is no transcript of that

hearing or substitute for a transcript. That same day, the court granted the motion to

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reconsider and dismissed the complaint against the Roughtons for lack of personal

jurisdiction. Patricia appeals.

¶ 13 II. ANALYSIS

¶ 14 A. Anna’s Affidavit

¶ 15 In her reply brief, Patricia contends for the first time that we should not consider Anna’s

affidavit, because there was no showing that it could not have been provided as an exhibit

with the Roughtons’ original motion. However, points not argued in the appellant’s brief are

forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008); R. 341(j) (eff. July 1, 2008) (reply

brief “confined strictly” to responding to the arguments presented in the appellee’s brief);

Sylvester v. Chicago Park District, 179 Ill. 2d 500, 507 (1997) (issues raised for the first time

in the reply brief are forfeited). Further, Patricia has not provided a transcript or substitute

of the hearing on the motion to reconsider showing what transpired that would be grounds

for error. For example, she has not shown what the parties presented or argued, that she made

any sort of objection to consideration of the affidavit, or what the court determined as the

basis of its judgment.

¶ 16 “[A]n appellant has the burden to present a sufficiently complete record of the

proceedings at trial to support a claim of error, and in the absence of such a record on appeal,

it will be presumed that the order entered by the trial court was in conformity with law and

had a sufficient factual basis. Any doubts which may arise from the incompleteness of the

record will be resolved against the appellant.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92

(1984). In the absence of a complete record, we must presume that the trial court had ample

grounds supporting its determination. Rock Island County v. Boalbey, 242 Ill. App. 3d 461,

462 (1993).

¶ 17 Here, without a transcript of the hearing on the motion to reconsider or a substitute, we

assume that Patricia did not object, that the affidavit was accepted at the hearing as newly

discovered evidence, or that the trial court otherwise had ample grounds to support its

determination about the affidavit. This is particularly appropriate when the motion for

reconsideration was based in part on the court’s indications that it would be open to learning

of additional facts that arose, and when new case law arose during the pendency of the

proceedings. Accordingly, we consider Anna’s affidavit.

¶ 18 B. Personal Jurisdiction

¶ 19 Patricia argues that the Illinois courts have personal jurisdiction over the Roughtons

because the Roughtons negotiated the contract with an Illinois resident, they have a website

and have advertised nationally, and the contract was performed in Illinois. The Roughtons

contend that their contacts with Illinois are too attenuated to support personal jurisdiction

over them, because they have no physical contact with Illinois and were passive purchasers

who did not initiate the transaction, which was not substantially performed in Illinois.

¶ 20 “The plaintiff has the burden of proving a prima facie case for jurisdiction when seeking

jurisdiction over a nonresident defendant.” Bolger v. Nautica International, Inc., 369 Ill.

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App. 3d 947, 949-50 (2007) (citing Keller v. Henderson, 359 Ill. App. 3d 605, 610 (2005),

and Spartan Motors, Inc. v. Lube Power, Inc., 337 Ill. App. 3d 556, 559 (2003)). When the

trial court decides the issue of personal jurisdiction based solely on documentary evidence,

our review is de novo. Id. at 950. “In reviewing affidavits and pleadings, we resolve conflicts

between the documents in the plaintiff’s favor for purposes of determining whether a prima

facie case for jurisdiction has been shown.” Id. “A plaintiff’s prima facie case for jurisdiction

can be overcome by a defendant’s uncontradicted evidence that defeats jurisdiction.” Id.

¶ 21 Section 2-209(c) of the Code of Civil Procedure (the long-arm statute) allows an Illinois

court to exercise personal jurisdiction on any basis permitted by the Illinois Constitution and

the Constitution of the United States. 735 ILCS 5/2-209(c)(West 2008). “Thus, the long-arm

statute has been held to be coextensive with the due process requirements of the Illinois and

United States Constitutions.” Bolger, 369 Ill. App. 3d at 950; see G.M. Signs, Inc. v. Kirn

Signs, Inc., 231 Ill. App. 3d 339, 342 (1992). Accordingly, the issue is addressed according

to due process requirements.

¶ 22 Under state due process guarantees, it must be fair, just, and reasonable to require a

nonresident to defend an action in Illinois, considering the quality and nature of the

defendant’s acts that occur in Illinois or that affect interests located in Illinois. Rollins v.

Ellwood, 141 Ill. 2d 244, 271 (1990). “ ‘Federal due process analysis requires a three-prong 1

analysis consisting of whether (1) the nonresident defendant had “minimum contacts” with

the forum state such that there was “fair warning” that the nonresident defendant may be

haled into court there; (2) the action arose out of or related to the defendant’s contacts with

the forum state; and (3) it is reasonable to require the defendant to litigate in the forum

state.’ ” Bolger, 369 Ill. App. 3d at 950 (quoting Keller, 359 Ill. App. 3d at 613); see also

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-77 (1985). At issue in this appeal is

whether the Roughtons had sufficient minimum contacts with Illinois so that Illinois courts

can assert personal jurisdiction over them.

¶ 23 1. Minimum Contacts

¶ 24 “In order for personal jurisdiction to comport with federal due process requirements, the

defendant must have certain minimum contacts with the forum state such that maintaining

the suit there does not offend traditional notions of fair play and substantial justice.” Bolger,

369 Ill. App. 3d at 951 (citing International Shoe Co. v. Washington, 326 U.S. 310, 316

(1945)). “The minimum contacts required for personal jurisdiction must be based on some

act by which the defendant purposefully avails itself of the privilege of conducting activities

within the forum state, thus invoking the benefits and protections of its laws.” Id. (citing

In Keller, we noted that “in almost all cases, when federal due process concerns regarding 1

personal jurisdiction are satisfied, so are Illinois due process concerns.” Keller, 359 Ill. App. 3d at

620. Thus, because there was no contention that the analysis diverged, we held that “because federal

due process concerns have been satisfied in this case, so have Illinois due process concerns.” Id.

Similarly, neither party in this case asserts that the analyses diverge. Thus, we address only the

federal due process standard.

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Burger King Corp., 471 U.S. at 475, and Keller, 359 Ill. App. 3d at 612-13). The purposefulavailment requirement exists so that an out-of-state 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. Id. The minimum

contacts required for the exercise of personal jurisdiction differ depending on whether

general jurisdiction or specific jurisdiction is being sought. Id. Patricia argues that both

general and specific jurisdiction are present.

¶ 25 a. General Jurisdiction

¶ 26 “General jurisdiction can be found when the defendant has continuous and systematic

general business contacts with the forum.” Id. (citing Helicopteros Nacionales de Colombia,

S.A. v. Hall, 466 U.S. 408, 416 (1984), and Keller, 359 Ill. App. 3d at 613). “Illinois limits

general jurisdiction over nonresidents to instances in which the nonresident was present and

doing business in the forum.” Id. (citing Roiser v. Cascade Mountain, Inc., 367 Ill. App. 3d

559, 562 (2006)). “That standard requires a nonresident defendant to carry on business

activity in Illinois, not occasionally or casually, but with a fair measure of permanence and

continuity.” Id. (citing Roiser, 367 Ill. App. 3d at 562). The standard is quite high and means

that the foreign defendant has in effect taken up residence in Illinois and, therefore, may be

sued on causes of action both related and unrelated to its activities there. Id. Transient

contact, such as attendance at trade shows, advertising, or the mere solicitation of customers,

is insufficient to establish general jurisdiction. Id. at 951-52.

¶ 27 Here, the Roughtons do not have continuous and systematic contacts with Illinois. They

do not maintain an office in Illinois and, although they have a website and advertise in some

national trade journals, there is no evidence that those materials solicit purchases from

residents of Illinois or any other state, and there is no evidence of direct marketing to Illinois

residents. There is no evidence of regular business activity in Illinois or travel to Illinois.

Thus, the Roughtons do not carry on business activity in Illinois with any degree of

permanence or continuity. Therefore, the courts of Illinois cannot exercise personal

jurisdiction over them under a general jurisdiction theory.

¶ 28 b. Specific Jurisdiction

¶ 29 “A court has specific jurisdiction over a defendant if the suit arises out of or relates to the

defendant’s contacts with the forum state.” Id. at 952 (citing Keller, 359 Ill. App. 3d at 613).

Forspecific jurisdiction, the suit must arise directlyout of the contacts between the defendant

and the forum. Id. At a minimum, the court must find an act by which the defendant

purposefully avails him or herself of the privilege of conducting activities within the forum

state, thus invoking the benefits and protections of its laws. Id. “The focus is on the

defendant’s activities within the forum State, not on those of the plaintiff.” (Internal

quotation marks omitted.) Id.

¶ 30 “[T]he factors a court considers to determine whether a defendant has sufficiently

transacted business in Illinoisso as to have purposefullyavailed him or herself of the benefits

of Illinois law are: (1) who initiated the transaction; (2) where the contract was formed; and

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(3) where performance of the contract was to take place.” Id. (citing Viktron Ltd. Partnership

v. Program Data, Inc., 326 Ill. App. 3d 111, 117 (2001), and Campbell v. Mills, 262 Ill. App.

3d 624, 628 (1994)).

¶ 31 “In cases involving a contract for the sale of goods, courts have found the exercise of

personal jurisdiction appropriate when the nonresident defendant actively initiated the

transaction, or when a portion of the contract performance was carried out in Illinois.” Id.

(citing Keller, 359 Ill. App. 3d at 618-19). However, an individual’s contract with a

nonresident defendant alone does not automaticallyestablish the requisiteminimum contacts.

Id. (citing G.M. Signs, 231 Ill. App. 3d at 343). This is particularly true when the nonresident

defendant is a buyer, rather than a seller. In those circumstances, we distinguish between

active and passive purchasers. Chalek v. Klein, 193 Ill. App. 3d 767, 772 (1990).

¶ 32 “Under this approach, if the nonresident buyer is a passive party who merely places an

order by mail, telephone, or to a salesperson and accepts the seller’s price as stated in

advertising or other forms of solicitation, the courts of the seller State will not be able to

exercise in personam jurisdiction over the buyer.” Id. at 772-73. “If the buyer departs from

a passive role by dictating or vigorously negotiating contract terms or by inspecting

production facilities, the unfairness which would be associated with the exercise of long arm

jurisdiction over that buyer dissipates, and he or she will be subject to personal jurisdiction

in the courts of the seller’s State.” Id. at 773.

¶ 33 “The type of conduct which would characterize an active purchaser is far more typical

in dealings between major business organizations than in transactions in which a consumer

or even a small shopkeeper is the purchaser.” Id. “Distinguishing between active and passive

purchasers therefore protects the ordinary mail order consumer who merely orders an item

of merchandise from a company in a distant State from having to submit to the jurisdiction

of the courts of that State while at the same time it protects sellers who manufacture custombuilt products according to a nonresident buyer’s specifications.” Id. “Furthermore, under

this approach, individuals from other States who order goods from Illinois residents will not

be subject to the jurisdiction of our courts merely because they have entered into a contract

with Illinois residents.” Id. It addresses the due process concerns expressed by the United

States Supreme Court in Burger King, and it allows potential nonresident defendants to

structure their conduct with some degree of assurance as to whether it will render them liable

to suit in Illinois. Id.

¶ 34 In Chalek, the defendant buyer purchased a single product from an Illinois seller. The

defendant made the first contact to the seller to inquire about making the purchase, called

another time in response to materials sent by the seller, and sent a check to the seller. When

the product arrived, the defendant determined that it was not satisfactory and stopped

payment on the check. However, the defendant never entered Illinois, never negotiated the

terms of the purchase agreement, and did not otherwise depart from the role of a passive

buyer. Therefore, we determined that personal jurisdiction was lacking.

¶ 35 In comparison, in G.M. Signs, the defendant buyer did not have any physical presence in

Illinois. However, the plaintiff seller did not solicit the defendant’s business. The defendant

traveled to Illinois to inspect the seller’s manufacturing facilities and then initiated and

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negotiated an ongoing purchasing relationship with the seller for the purchase of customproduced products that were made according to the defendant’s specifications. In that

instance, the defendant was an active purchaser who was subject to personal jurisdiction in

Illinois. G.M. Signs, 231 Ill. App. 3d at 344-45.

¶ 36 Here, the facts fall between those of Chalek and G.M. Signs, but the record does not

support a conclusion that the Roughtons were the type of active purchasers necessary for the

exercise of personal jurisdiction over them. The Roughtons did not initiate the transaction

and instead responded to solicitations from Anna. Indeed, Anna averred that all contact was

at her request. The Roughtons never entered the state, and the action involved a single

purchase with no further ongoing relationship between Anna and the Roughtons. We note

that the Roughtons did negotiate in relation to the transaction, but unlike negotiations in

cases that gave rise to personal jurisdiction, there is no evidence that the Roughtons

vigorously negotiated price or arranged for an ongoing relationship involving custom

product. Instead, the Roughtons responded to solicitations, accepted the price that was

offered to them, and negotiated only for the ability to inspect the painting before their

purchase became final.

¶ 37 Patricia argues that the contract was formed and performed in Illinois, giving the state

jurisdiction over the Roughtons. She also argues that the Roughtons committed a tort in

Illinois by directing the removal of the painting from Illinois to Texas, making Illinois the

place of wrongdoing. But the Roughtons’ performance in relation to the contract occurred

in Texas. The contract required Anna to ship the painting to Texas and was contingent upon

the Roughtons’ inspection of the painting in Texas. The Roughtons issued the check from

their offices in Texas and, after their inspection, title to the painting passed in Texas. See

Natural Gas Pipeline Co. of America v. Mobil Rocky Mountain, Inc., 155 Ill. App. 3d 841,

846 (1986) (course of performance that included transfer of title in another state did not

constitute a transaction of business sufficient to give jurisdiction to Illinois); Chicago Film

Enterprises v. Jablanow, 55 Ill. App. 3d 739, 743 (1977) (transaction in a suit over a film

shipped to Missouri from Illinois took place in Missouri). Further, to the extent that Illinois

was the location of wrongdoing, it was based on Anna’s actions in initiating and carrying the

deal through to completion. The actions from the Roughtons’ side of the transaction took

place in Texas. Although Patricia alleged in her complaint that the Roughtons purchased the

painting knowing that Anna did not own it, nothing in the evidence that was provided for

establishing personal jurisdiction supports that allegation. There is no evidence that the

Roughtons were even aware of Patricia’s existence.

¶ 38 Patricia also argues that the Roughtons’ website establishes jurisdiction. The existence

of a website may or may not be sufficient to assert personal jurisdiction, depending on the

level of interactivity and the commercial nature of the information exchanged. MacNeil, 401

Ill. App. 3d at 1083. Patricia argues that the Roughtons’ website is interactive because they

admit that theysolicit business through that site. However, nothing in the record provides any

additional facts about the nature of the website and whether the Roughtons use it to solicit

purchases of paintings as opposed to only sales of paintings from the gallery. If the site does

not solicit purchases of artwork, which is what is pertinent to this case, its existence would

be less relevant to the determination of personal jurisdiction. There also is no evidence that

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the website specifically solicits customers in Illinois and no evidence about the amount of

solicitation on the site as compared to noncommercial information. Without more, the record

is insufficient to show that the existence of the website gives Illinois personal jurisdiction

over the Roughtons.

¶ 39 The material in the record shows that the Roughtons were passive buyers who were not

subject to the jurisdiction of the Illinois courts. We also observe that, because Patricia did

not provide a transcript or substitute of the hearing on the motion to reconsider, it is

unknown what, if any, additional facts or arguments arose at that hearing. To the extent that

there were additional facts presented about the performance of the contract, the location of

any wrongdoing, or the nature of the Roughtons’ website, we must assume that the trial

court’s order was in conformity with law and had a sufficient factual basis. See Foutch, 99

Ill. 2d at 391-92.

¶ 40 III. CONCLUSION

¶ 41 The Roughtons lacked sufficient minimum contacts with Illinois for our courts to

exercise personal jurisdiction over them. Accordingly, the judgment of the circuit court of

Du Page County is affirmed.

¶ 42 Affirmed.

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