No. 1-06-3718 Filed: 6-29-07 FIRST DI VISI ON COMMERCI

AL CO IN L

AUNDRY SY STEMS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) ) v. ) No. 06 M1 158422 ) ) LOON I NVESTMENTS, LL C., ) Honorab le ) Michael T. Healy , Defend ant-App ellant. ) Judge Presi ding. JUSTICE ROBERT E. GORDON d elivere d the opini on of the c ourt: Plaintiff , Commerc ial Coin L aundry Syst ems, is an Illinois gene

ral par tnership engag ed in the busine ss of insta

lling an d maintain

ing commercial l aundry

equipmen

t in multiple - unit apartme nt building s. Defe

ndant, L oon I

nvestmen ts, LL C., is a Wisc onsin limite d liability company and the c urrent o wner of

the apar tment build

ing loca ted at 165 7 South 17th

S treet in Milwaukee, Wisconsin (the property ). Plaintiff had signed an agree ment with the prior owner of the prope rty for the p urpose of installing and maint

aining l aundry

equipmen

t there. As the re sult of alleged vandalism and theft of laundry equipment on the property , plaintiff sued defendant allegi ng bre ach of c ontract , damag e to pers onal prop erty and conv ersion. D efenda nt moved to dismiss for lack of personal jurisdiction, and the circuit court of Cook County denied the motion. For the reasons set forth below, we re verse. BACKGROUND On August 4, 1988, plaintiff signed a written lease a greement with Ruth Kuehn, who wasNo. 1-06-3718

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then the owner of the subject property, which has 29 apartments. Plaintiff leased the laundry areas in order to install and operate coin-oper ated laundry ma

chines for use by

tenants. In return for use of the laundry

areas, plaintiff agreed to pa y the lessor 15% of the

coin receipts from the machines, and an additional $1,600 flat fee to reimburse the lessor f or improvements to the laundry areas. Plaintiff

allege d that it pr

epared and neg otiated the lease

from its of

fices in Chicago. The lease stated that title of the machines remained with plaintiff and tha t “lessor does not assume any re sponsibility for any loss, damage or destruction of said laundry equipment by fire, theft or any

other casualty

beyond lessor’s r

easonable control or prevention.” The lessor was responsible for “all janitorial and housekeeping services for the laundry

room and equipment” and warranted that “the premises ha ve adequate utilities and proper venting and ther e will be no building code violations which adversely affect” plaintiff’s ability

to run laundry machine s. The leas e was fo r “a ter

m of 10 y ears co mmencing

August 3 0, 1988." Howeve r, the le ase stated that it “shall continue for additional ten y ear terms unless terminated in writing by either lessee or lessor.” The parties ag ree that, pursuant to this renewal provision, the lease did renew after the expiration of the first term on August 30, 1998. The second ter m is in effect and continues until August 30, 2008. Th e l ea se pr ov id ed th at it wa s b in di ng on fu tu re ow ne rs of th e p ro pe rt y: “This Lease Ag

reement shall be binding upon and shall inure to the benefit of the lessor and the lessee and their re spective successorsNo. 1-06-3718

3 and assigns, including any future owners, beneficiaries or lesse e of the Build ing, it be ing the i

ntention o f the par

ties that t he inter est granted to lessee herein shall run with the land a nd building.” The lease had a choice-of-la w provision, which stated: “This agreement shall be g overned by the laws of the State of Illinois.” The lease also provided that “ [t]he Lease shall not take effect until accepted by

lessee at the office of lessee in Chicag o, Illinois.” On September 1, 1999, defendant acquired the building. Plaintiff f iled suit in Cook County, I llinois, against defendant alleging c ounts for breach of contract, damag e to personal property a

nd conversion. The complaint alleged that “beg inning very

shortly after de fendant acquire d the build

ing and continuin

g up to the

present time, [plain

tiff] has s uffere d repea

ted acts of vandalism, break-ins, and theft of its laundry equipment.” The alleged incidents included “coin boxes being broken into, washer hoses disconnected, e lectrical cords cut, concrete poure d into the washers, and oil poured into the dry ers.” On February

13, 2006, plaintiff “discovered that all of its laundry machines ha d been stolen from each of the laundry rooms.” Plaintiff alleged that prior to defendant’s acquisition of the building, it had e xperienced no incidents of vandalism or theft there. However, af ter defendant’s acquisition, plaintiff has been forced to replace its laundry machines on four occasions. Plaintiff alleged that tena nts had informed its agent that defendant’s maintenanc e man had intentionally cut the e lectrical cords on all of its laundry machines. In a ddition to the incide

nts of the ft and va

ndalism, p laintiff

also alle ged util ity p

roblems, such as “ blown fus es, drai

nage problems in

the laund ry room, wa

ter shut o ff to the l aundry room,No. 1-06-3718

4

no electricity f

or the equipment, no lights in a laundry room and no electricity

for a laundry room.” Plaintiff alleged that it had experienced no utility problems prior to defendant’s acquisiti on and tha

t it contac ted defe ndant re peatedl y a sking de fendant

to provide

adequa te security and utilities but defenda nt never did so. In response to the complaint, defe ndant filed a motion to dismiss for lack of personal jurisdiction. In support of its motion, defendant submitted the affidavit of Dary l Nirode, who stated tha t he was the “Contro ller” of defenda nt, which is a Wiscons in limited li ability corpora tion with its

principa l place o f busines s in Milwau kee. Nir ode state d that def

endant di d

not own or

manage any propert y within I llinois, tha

t it did not c onduct an

y bu siness in I

llinois and that it had no offices or employ ees in Illinois.. In response, plaintiff submitted the affida vit of S. Saul Silverstein, who stated that he was a general partner of

plaintiff, which is an Illinois gener al partnership with its office in Chicago, Illinois. Silverstein stated that plaintiff calculates and pay s the rent due under the lease and administers its laundry equipment service from its offices in Chicago and that defendant ha s accept ed rent p ay

ments from plaintif

f for y ears. On November 29, 2006, the trial court denied defenda nt’s motion. The order did not make factual findings or identify the section of the jurisdictional statute pursuant to which the court was exercising jurisdiction over the defendant. On D ecember 28, 2006, plaintiff petitioned this court for leave to appeal, which was g ranted. For the following reasons, we reverse. ANA LYSIS “When the circuit court decides a jurisdictional question solely on the basis ofNo. 1-06-3718

5

documentary e

vidence, as it did in this case, the question is addressed de novo on appeal.” Rosier v. Cascade Mountain, Inc. , 367 I ll. App. 3d 559, 561 ( 2006); Alderson v. Southern Co. , 321 Ill. App. 3d 832, 846 (2001). “The plaintiff be ars the burden of establishing a prima facie basis upon which jurisdiction over an out-of-state resident may be exercised.” Rosier , 367 I ll. App. 3d at

561; Alderson , 321 I ll. App. 3d at 846; Khan v. Van Remmen, Inc. , 325 Ill. App. 3d 49, 53-54 (2001). Section 2- 209 of the

Code of Civ

il Proced ure (735 IL CS 5/2-209 (

West 2004) ) sets for

th when Illinois courts will exercise personal jurisdiction over a de fendant. Subsection 2-209(a), which g overns sp ecific j urisdicti on, lists 14 ground s by

which a d

efenda nt may subject it self to Illinois jurisdiction. 735 IL CS 5/2-209(a)(1) through (a) (14) (West 2004). Subsection 2-209( b), which g overns g eneral

jurisdict ion, lists f our gro unds, only

two of whi ch apply

to corpor ations: “(3) *** a corporation organized under the laws of this State; or (4) *** [a] corporation doing business w

ithin this Sta

te.” 735 I LCS 5/2 -209(b) (3), (b)

(4) (West

2004). Sub section 2 -209(c) is a “catc h-all provision” wh

ich perm its Ill inois cour

ts to “ ‘exe

rcise jur isdiction on any

other ba sis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.’ ” Rosier , 367 Ill. App. 3d at 561, quoting 735 I LCS 5/2-209(c) (West 2004). Subsection 2-209(c) permits an Illinois court to exercise pe rsonal jurisdiction to the extent permitted by the due process clause of the fourteenth ame ndment to the United States Constitution. Klump v. Duffus , 71 F.3d 1 368, 1371 ( 7th Cir. 1995)(Ill inois long -arm sta tute was a mended in

1989 to add subsection 2-209(c), which is “coextensive with the due process re quirements of the United States Constitution”).No. 1-06-3718

6

An exerc ise of jur

isdiction u

nder any of these three su bsection s must also c omport wit h the due process clause. The due proce ss clause limits a state’s exercise of personal jurisdiction over a nonresident defendant to those instances wher e the defendant had at least “minimum contacts” with the state. Rosier , 367 Ill. App. 3d at 561. This court recently described the minimum con

tacts sta ndard as follows: “The minimum contacts standard ensures that ‘requiringthe out-ofstate resident to defend in the forum does not " ‘offe nd traditional notions of fair play a

nd substantial justice.’ " [Citation.] The minimum contacts analysis must be based on some ac t by which the defendant purposefully availed itself of the privilege of conducting activities within the forum state, in order to assure that a nonresident will not be haled into a forum solely as a result of random, fortuitous, or attenuated contacts with the forum or the unilateral acts of a consumer or some other third person.” Rosier , 367 Ill. App. 3d at 561-62. In the case at ba

r, plaintiff claimed that this court may exercise jurisdiction under subsecti on 2-209( a) or (c ) but not ( b). Plaint iff did no t claim, a s subsect ion 2-209(

b) requi res, that def endant w as a cor

poration organ ized under

the laws o f or doing

business w

ithin the Sta

te of Illinois. 735 IL

CS 5/2-209(b)(3), (b) (4) (West 2004). Plaintiff claimed that the following three grounds of subsection a applied:

“(1) The transac tion of an y bu siness wit

hin this Stat

e;No. 1-06-3718

7 * * * (7) The making o r performance of any contract or promis e substantia lly c onnecte d with this St ate; * * * (10) The acquisition of ownership, possession or control of any asset or thing

of value present within this State when ownersh ip, posses sion or control was acquire d ***[.]” 735 IL CS 5/2-209(a)(1), (a)(7), (a) (10) (West 2004). On appeal, plaintiff did not claim that defendant transacted business in I llinois, made or performed a contract in Illinois or acquired control over Illinois property . Instead plaintiff claimed that it was the prior owner who took these actions and that the prior ow ner’s actions subjected the defendant to personal jurisdiction in I llinois. Plaintiff claimed that “the material acts subjecting Loon to the jurisdiction of I llinois are those acts performed by the original lessor, Kuehn,” and that defendant subjected itself to jurisdiction as a “suc cessor in interest.” Plaintiff claimed jurisdiction solely beca use “Loon’s predec essor in title, Kuhn, did these acts, thereby subjectin g Lo on as a suc cessor i

n intere st to the Re al Proper ty to the same jurisdict ion.” I n short, plaintiff is claimin

g deriv ative pe

rsonal ju risdiction. In

essence , plaintif

f asks us f

irst to determine whethe

r this cou rt would ha

ve had jur

isdiction over the prior owne r and sec ond to attribute that jurisdiction to the defendant. Plaintiff claims that this court may attribute the first owne r’s personal jurisdiction to the second owner because personal jurisdiction “r an with the land.” The claim is: the first ownerNo. 1-06-3718

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took actions with respect to a lease that allegedly subjected the first owner to personal jurisdiction, the building was then sold while the lease was still in effect, and persona l jurisdiction, like the lease itself, “ran with the land” so that this court acquired per sonal jurisdict ion over a ny s ubseque nt owner . None of

the case s cited by

the plain tiff support its theory of de

rivative personal jurisdiction or “runs with the land” jurisdiction, nor can this court find any. Rosier , 367 Ill. App. 3d at 568 (this court held that, by failing to offer any

supporting legal authority

or reasoning, plaintiffs waived considera tion of their theory for

asserting personal jurisdict ion over d

efenda nts); People v. Ward , 215 Ill. 2d 317, 332 (2005) (“A point raised in a brief bu t not suppor

ted by citation t o releva nt author ity * ** is ther

efore f orfeite d”); Ferguson v. Bill Berger Associates, I

nc. , 302 I ll. App. 3d

61, 78 (19 98) (“it i s not nece ssary to decide this question since the defendant has waived the issue” by failing to offer case citation or other support a s Supreme

Court Rule

341 requ ires); 21 0 Ill. 2d R. 341(h )(7) (a rgumen t in appel late brief must be supported by c itation). On this issue of derivative jurisdiction, defendant cited Natural Gas Pipeline Co. of America v. Mobil Rocky Mountain, I nc. , 155 I ll. App. 3d

841 (1986 ). In

a situation similar to the facts at bar, the defendant in Natural Gas acquired an interest in a contract throug h an assignment from the original signatory

. Natural Gas , 155 I ll. App. 3d at 842. Th e plaintif

f in Natural Gas made a jurisdictional claim similar to the claim of the plaintiff in the case at bar. The Natural Gas plaintiff claimed that this court had personal jurisdiction over the nonresident defendant since the defendant had “initiated the c ourse of dealings that resulted in a contrac t between the parties.” Natural Gas , 155 Ill. App. 3d at 846. This court in Natural Gas held: “Th isNo. 1-06-3718

9

argument is specious; [defendant] never dealt with [plainitff]. [Defendant] was merely an assignee of the original contra ct that was negotiated and signed by [plaintiff].” Natural Gas , 155 Ill. A pp. 3d at 8 46. Thus, t

his court has prev iously held that merely being a success or in inter

est to a contract is insufficient, without more, to confer personal jurisdiction. Plaintiff did not claim that the relationship between the prior owner and the defe ndant

was one o f agen

t and principal ( Brandt v. Agrimar Corp., 801 F. Supp. 164, 169 (C.D. Ill. 1992) (agent’s “jurisdiction-trigg ering activities can be imputed to” principal)); par ent and subsidiary corpora tions ( Brandt , 801 F. Su

pp. at 169 (“this Cou

rt can a ssert jur

isdiction over an ou

t-of-sta te parent (or grandpare

nt) corporation through the activities of its subsidiary ”)); or primary stockholder and corporation ( Rosier , 367 Ill. App. 3d at 566 (“The re medy of disreg arding or piercing the corporate veil in order to get to assets held by

an individual will be employed wher e there is such unity of intere st and ownership that the separate personalties of the cor poration and the individual no longer exist ***”)). Plaintiff did not claim that this court had personal jurisdiction by means of any of these other relationships, and the record would not support such a claim. On appeal, plaintiff did not claim any basis for jurisdiction except for its “ran with the land” theory. T

hus plaintiff, who bears the burden of establishing a prima facie case for jurisdiction, waived any other possible claims for jurisdiction. Supreme Court Rule 341, which governs the content of appellate brief s, provides that any “[p]oints not argued a re waived and shall not be raised *** on petition for rehearing.” 210 I ll. 2d R. 341((h)(7). Since we reject plaintiff’s theory of derivative jurisdiction, we examine defendant’s ownNo. 1-06-3718

10

contacts with the state of Illinois to determine if we ma y exercise personal jurisdiction. The documentary e

vidence submitted by the par ties established that defendant had the following contacts with our state:

1. Contra ct with an Illinois tenan

t; 2. Recei pt in Wiscons in of ren

t mailed f rom I llinois; 3. Possession and control over Illinois equipment; and 4. Illinois choice-of-law cla use. The above list of contacts is almost identical to the list of contacts which this court rejected as a basis for jurisdiction in Mellon First United Leasing v. H ansen , 301 Ill. App. 3d 1041 (1998). The plaintiff in Mellon claimed that the following contacts were suff icient for jurisdiction: 1. Contra

ct with an Illinois tenan

t; 2. Receipt in Illinois of rent mailed from California; 3. Leasing of I

llinois equipment; and 4. Illinois forum-selection clause. Like we did in Mellon , we reject these contacts as a suffic ient basis for jurisdiction. Mellon , 301 Ill. App. 3d at 1050. We will analyze each of

these contacts in turn. First in the case at bar, def endant’s purchase of the property

resulted in its assumption of a contract with an Illinois resident. Howeve r, the me re fac t of ente

ring int o a contr act with a n Illi nois resid ent does n

ot subjec t a nonresident defendant to Illinois jurisdiction. Hendry v. Or nda Health Corp. , 318 Ill. App. 3dNo. 1-06-3718

11

851, 854 (2000) (“merely entering into a contract with a resident of I llinois is not sufficient by itself to subject a nonresident to in personam jurisdict ion in I llinois”) ; Mellon , 301 Ill. App. 3d at 1048 (“Whe

re a nonr esident me

rely enters in to a contr act with a residen t of the forum state , this fact is not sufficient by itself to subjec t the nonresident to the in personam jurisdiction of the forum state”). In Mellon , t hi s c ou rt di st in gu is he d b et we en a p as si ve an d a n a ct iv e c on tr ac ti ng pa rt y. Mellon , 301 Ill. App. 3d at 1048-49. I f the nonresident is a passive party who merely a

ccepts the other party’ s contract terms, that passive acceptance is not enough to confer jurisdiction. Mellon , 301 Ill. App. 3d at 1048. By contrast, if the nonresident took an active role such as dictating or vigorously ne gotiating the contract terms or inspecting equipment or facilities in Illinois, then this active role in Illinois will confer jurisdiction. Mellon , 301 Ill. App. 3d at 1048-49. I n the case at bar, plaintiff concedes that def endant did not take an active role; that is why plaintiff

resorte d to its der

ivative ju risdiction claim. D efenda nt passive ly a ssumed the

contract throug

h its acquisition of the building, and this passive act alone is insufficient to confer jurisdiction Second, the simple mailing of rent pay ments to or from Illinois is not enough to confer jurisdiction on Illinois. Mellon , 301 Ill. App. 3d at 1047. Third, plaintiff claims that the laundry machines were I llinois machines, that defendant thus acquired possession and control over Illinois machines, and that this control gave I llinois jurisdiction over defendant. This court has previously held that the possession and c ontrol by a nonresident of Illinois equipment for use in a foreign jurisdiction does not confer jurisdiction on I llinois. Mellon , 301 Ill. App. 3d at 1047 (nonr eside nt di d not trans act bu sines s or pe rform a cont ract i n Illin ois wh en it l eased a post ageNo. 1-06-3718

12

meter ma chine fr om an I llinois cor

poration for use i n Califor nia); c.f. Jamik, Inc. , 74 F. Supp. 2d 818, 821 (

N.D. I ll. 1999) ( installat

ion in a Ne

w Jersey hotel of b athtubs ma

nufactu red in Illinois did not give an Illinois court personal jurisdiction over New Jersey hotel owne

rs). Fourth, the only fa

ctor weighing in favor of findingjurisdiction is the Illinois choice-oflaw clause. Although a relevant consider ation, a choice-of-law clause “by itself” does not confer personal jurisdiction. Bolger v. Nautica I nternational, Inc., 369 Ill. App. 3d 947, 952 (2007), quot ing Morecambe Maritime, Inc . v. National Bank of Greece, S.A. , 354 Ill. App. 3d 707, 713 (2004). U sually

when a choice-o f-law c lause is noted as pa rt of a jur isdiction f

inding, t he claus e is merely “one

more arrow in [plaintiff’s] quiver.” AM International Leasing Corp. v. National Council of Negro Women, Inc

. , 627 F. Supp. 1302, 1307 (N.D. Ill. 1986). Althoug h plaintif f was the party that dra fted the

contract and fille d it with boi lerplate language conducive to its business, it chose to include only a choice-of-law clause, not a strong er and enforceable forum-selec tion clause. Aon Corp. v. Utley , 371 Ill. App. 3d 562, 568 (2006) (enfor cing a f orum-se lection c lause as

a basis f or personal jurisd

iction in I llinois ove

r Califor nia defenda nt); IFC Credit Corp. v. Aliano Brothers General Contractors, I nc. , 437 F.3d 606, 609 (7th Cir. 2006)(enfor

cing a f orum-se lection c lause as

a waive r by defenda nt to its obje ctions to personal jurisdiction in Illinois). Plaintiff cannot now be heard to c omplain about the form contract that it crafted. C.f. Mellon, 301 Ill. App. 3d at 1045 (court ga ve little effect to a “forum selection clause contained in ‘boilerplate’ lang uage”). Last and least, plaintiff spends a portion of its brief discussing the fact that there are sig ns in the laundry ar

eas informing consumers to call plaintiff in case of pr oblems with the laundryNo. 1-06-3718

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machine s. The sig

ns establ ish that pla

intiff expe cted to ha

ve an ong oing and on-site relation ship with the Wisconsin property. Howeve r, plaintiff’s maintenance activities in Wisconsin cannot be used to establish personal jurisdiction in Illinois over the defendant. Gordon v. Tow , 148 I ll. App. 3d 27 5, 280 (19 86) (“I n assessi ng a non residen t’s conta cts with th

is State, ‘ [o]nly

the acts of defendant can be considered in de termining whether business was transacted in I llinois.’ ”). CONCLUSIO

N For the foregoing r

easons, we reverse the trial court’s de cision denying the defendant’s motion and dismiss for lack of personal jurisdiction. Reversed. McBRIDE, P.J. and GARCI A, J., concur.