{ "id": 3489980, "name": "NORINE O'NEILL, a Minor, by her Mother and Next Friend, Barbara O'Neill, et al., Plaintiffs-Appellees. v. MOULIS CORPORATION, Indiv. and d/b/a Fox Lake Harbor, et al., Defendants-Appellants", "name_abbreviation": "O'Neill v. Moulis Corp.", "decision_date": "1984-12-28", "docket_number": "No. 84\u20140387", "first_page": "1044", "last_page": "1050", "citations": [ { "type": "official", "cite": "129 Ill. App. 3d 1044" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "464 N.E.2d 1011", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. 2d 250", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156363 ], "weight": 3, "pin_cites": [ { "page": "258-59" }, { "page": "262-63" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0250-01" ] }, { "cite": "368 N.E.2d 88", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "67 Ill. 2d 321", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5813305 ], "weight": 5, "pin_cites": [ { "page": "329" }, { "page": "333" }, { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0321-01" ] } ], "analysis": { "cardinality": 677, "char_count": 14533, "ocr_confidence": 0.748, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.09760626970916066 }, "sha256": "8cc588053731c9d059545a9880d15770d98df9716c2b5f7c60b9c15a4c7a2fd6", "simhash": "1:c4bec32b7502b454", "word_count": 2396 }, "last_updated": "2023-07-14T19:09:03.101627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NORINE O\u2019NEILL, a Minor, by her Mother and Next Friend, Barbara O\u2019Neill, et al., Plaintiffs-Appellees. v. MOULIS CORPORATION, Indiv. and d/b/a Fox Lake Harbor, et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE PERLIN\ndelivered the opinion of the court:\nThis court granted defendant Moulis Corporation's (the corporation) petition for leave to appeal (87 Ill. 2d R. 306) from an order of the trial court denying the corporation\u2019s motion to transfer venue from Cook County to McHenry County.\nThe record reveals the following relevant facts. The underlying action is for personal injuries allegedly resulting from a boating accident which occurred on Lake Pistakee. The lake is partially in Lake County and partially in McHenry County; no part of the lake is in Cook County. The plaintiffs and individual defendants each reside in McHenry County. The corporation has its principal place of business in Lake County; it maintains no address or phone in Cook County. The defendants Haag have filed a prior action against defendants Moulis Corporation and Paul Walczunski, arising from the same incident, in McHenry County.\nThe corporation filed a motion to transfer the cause to McHenry County, contending that since no defendant resided in Cook County and no part of the transaction from which the cause of action arose occurred in Cook County, venue would not lie in Cook County.\nPlaintiffs responded that, based on the deposition of corporate officer John Moulis, the corporation was \u201cdoing business\u201d in Cook County by virtue of its participation at boat shows held in Cook County and, therefore, venue in Cook County was proper.\nThe trial court, noting the corporation\u2019s participation at the Cook County boat shows, and stating that \u201cthe plaintiff has the right to choose the forum whenever it\u2019s reasonably possible and available\u201d denied the corporation\u2019s motion. We granted leave to appeal.\nThe sole issue presented is whether venue properly lies in Cook County. More specifically, the issue is whether it can be said that the corporation is \u201cdoing business\u201d in Cook County for purposes of venue.\nSection 2 \u2014 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 101) pertains to venue generally and provides, in part:\n\u201cExcept as otherwise provided in this Act, every action must be commenced (a) in the county of residence of any defendant who is joined in good faith *** or, (b) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.\u201d\nSection 2 \u2014 102(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 102(a)) defines the residence of corporations for purposes of venue:\n\u201cAny private corporation *** is a resident of any county in which it has its registered office or other office or is doing business.\u201d\nPlaintiffs rely on the deposition of corporate officer John Moulis to demonstrate that Moulis Corporation is \u201cdoing business\u201d in Cook County and that venue there is consequently appropriate. At his deposition, Moulis testified that Moulis Corporation, d/b/a \u201cFox Lake Harbor,\u201d operates a \u201ccomplete marina\u201d in Lake County. Its operation there includes \u201cstorage, sales, service, accessories and repairs\u201d of boats. It has \u201cabout 14 full-time employees, including two full-time salesmen.\u201d The corporation has participated in the annual Arlington Park and McCormick Place boat shows in Cook County on an unspecified and irregular basis over the past ten years; \u201csome years we go; some years we don\u2019t go.\u201d\nBoat manufacturers rent space at the boat shows, and boat dealers such as Moulis Corporation pay a fee to them in order to use the space; the fee depends upon the size of the space rented. The manufacturers display boat models at the shows. These models are not sold; an interested customer chooses a model, places an order and leaves a deposit with Moulis. The deposits range from $20 to $1,000. The contract forms used by Moulis provide that they are not \u201cbinding on seller or broker unless signed by an officer or sales manager of seller or broker.\u201d\nMost of the time the contracts are returned to the marina at Fox Lake for approval, although Mr. Moulis testified that he has on occasion approved sales contracts at the boat shows \u201cwhen all circumstances and items are known.\u201d If a buyer wishes to \u201ctrade in\u201d a boat, \u201cmost of the time we have him bring the boat\u201d to the marina for ex-' amination, although in some cases a Moulis employee will inspect the boat at its present location.\nThe corporation does not deliver the boats it sells; the buyer picks them up at the Fox Lake marina or, in the case of larger boats, the buyer accepts delivery at the factory. Moulis could not recall ever having delivered a boat in Cook County. The corporation obtains financing solely through a Lake County bank for potential buyers who so request.\nThe record is unclear with respect to the percentage of the corporation\u2019s gross annual income which is derived from boat sales as opposed to other services provided by the marina: \u201cFrom year to year it could vary much. If we lose money on our sales one year, we can make money on our sales next year. We could possibly make money all the time on our service. *** On our storage we do better.\u201d\nThe record is similarly unclear with respect to the percentage of the corporation\u2019s sale of boats which are generated at the Cook County boat shows as opposed to total boat sales. When asked how many boats per year Moulis Corporation sells, Moulis stated: \u201cWell, in the past year maybe 100 would be a lot. It really varies.\u201d At the 1983 10-day boat show held at Arlington Park, Moulis accepted \u201cabout 80\u201d deposits for boats. At the time of the deposition, only 20 of those depositors had received the necessary financing. At the 1983 McCormick Place boat show, Moulis Corporation had received 50 deposits for boats; \u201cvery few\u201d of these had resulted in completed sales at the time of the deposition. Participation in Cook County boat shows in other years had resulted in \u201csometimes none, sometimes two\u201d boat sales. Moulis Corporation advertises in the Chicago Tribune newspaper.\nIt is plaintiffs\u2019 contention that Moulis Corporation\u2019s participation in these Cook County boat shows is \u201cdoing business\u201d in Cook County for purposes of venue.\nIn Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 368 N.E.2d 88, our supreme court for the first time interpreted the \u201cdoing business\u201d phrase in the venue statute. In that case, the B & 0 had been sued in Madison County, venue being based on the allegation that the railroad was \u201cdoing business\u201d in that county. The court first rejected the contention that for venue purposes the phrase \u201cdoing business\u201d should be given the same expansive interpretation as when the same phrase is used as a statement of the test for determining whether a corporation would be amenable to suit in a foreign jurisdiction.\n\u201cA comparison of the literal terms of sections [2 \u2014 102 and 2 \u2014 209 of the Code of Civil Procedure] demonstrates that the legislature intended that more extensive contacts with a county are necessary to establish proper venue than are required when the issue is whether the defendant is subject to the jurisdiction of the courts of this State. ***.\nWe hold, therefore, that in order to establish that a defendant is doing business within a county for purposes of venue, quantitatively more business activity within the county must be demonstrated than where the question is whether the defendant has transacted any business within the State for purposes of service of process pursuant to section [2 \u2014 209]. The defendant must, in short, be conducting its usual and customary business within the county in which venue is sought.\u201d 67 Ill. 2d 321, 329.\nThe court then rejected the contention that B & O could be found to be doing business in Madison County on the basis of its sales manager\u2019s solicitation of business in that county. \u201cThe long-standing rule in Illinois is that the mere solicitation of business is not \u2018doing business\u2019 for purposes of jurisdiction. ***. For venue purposes, mere solicitation of business within a county does not establish venue in that county.\u201d 67 Ill. 2d 321, 333.\nThe court then considered the argument that the activities of B & O amounted to more than the mere solicitation of business in Madison County. Recognizing that the railroad\u2019s district sales manager testified that he was \u201cassigned\u201d a territory that included Madison County, that he had specific accounts in that county and that he spent approximately three days per month therein, the court held that such activity was not sufficient to establish that the B & 0 was doing business in Madison County. \u201cThe record reveals that the only service provided by petitioner\u2019s employee was merely incidental to the solicitation of shipping business.\u201d 67 Ill. 2d 321, 334.\nIn Stambaugh v. International Harvester Co. (1984), 102 Ill. 2d 250, 464 N.E.2d 1011, the supreme court again addressed the \u201cdoing business\u201d term in the venue statute. In Stambaugh, plaintiff filed a products liability action against defendant based on injuries suffered when an International Harvester tractor caught fire. A jury trial in St. Clair County resulted in plaintiff\u2019s being awarded substantial damages. The supreme court reversed the verdict and remanded the case for transfer to a county of proper venue. The sole issue presented was whether International Harvester was \u201cdoing business\u201d in St. Clair County.\nThe supreme court found that the appellate court had erred in\n\u201cconsidering the situation here to be different from that in Mo-sele. The nature of visits by Harvester personnel within St. Clair County was similar to the infrequent, but regular, visits in Mosele by B & O field representatives to Madison County. The defendant sold $2.6 million of its products to St. Clair County dealers in the 1976 fiscal year, but this is not dissimilar from the more than $10 million of business solicited in Madison County by B & O in a five-year period. Too, the sales of Harvester vehicles to St. Clair County dealers constituted approximately 5/10 Oths of 1% of its annual sales volume \u2014 an insignificant fraction of its total sales. It cannot be said that Harvester conducts its \u2018usual and customary business within the county.\u2019 [Citation.]\n* * *\nSales by Harvester are on an FOB basis and are completed at its plants outside St. Clair County. Title is transferred to the dealer by issuance of a certificate of origin at the particular plant of manufacture. Harvester has no address or telephone within St. Clair County and pays no taxes there.\u201d 102 Ill. 2d 250, 258-59.\nThe supreme court quoted from prior Illinois decisions which recognized that \u201cproper venue is an important privilege\u201d which is \u201cconferred upon the defendant\u201d and is to be given \u201cgreat weight.\u201d The Illinois venue statute is based upon \u201ca principle of convenience\u201d and is to be \u201cliberally construed in order to effect rather than defeat a change of venue.\u201d Finding that the accident there occurred and the plaintiff resided in Brown County, the court held:\n\u201cTo uphold venue over the defendant in St. Clair County \u2018would have the effect of negating the principle of convenience upon which section 5 of the [venue] Act is based\u2019 and \u2018would be to allow the institution of actions in locations with little connection with the defendant and with no connection with the activities which give rise to the suit.\u2019 [Citation.] ***. The recognized \u2018principle of convenience\u2019 was not served by the filing of the action in a county which had no connection with the accident or the product and was not the residence of either party or of any material witness.\nThe record shows that the defendant has only an insignificant relationship with St. Clair County. Harvester does not design, manufacture, directly advertise, finance, or sell its products from within St. Clair County. We consider that the circuit court\u2019s denial of the defendant\u2019s motion to transfer venue from St. Clair County was an abuse of discretion [citation], and we remand for the entry of an order transferring the action to a proper venue.\u201d 102 Ill. 2d 250, 262-63.\nIn the instant case, Moulis Corporation argues that its activities at the two Cook County boat shows demonstrate, at most, the mere solicitation of business and, as held in Mosele, the mere solicitation of business in a county does not establish venue there.\nPlaintiffs answer that the level of activity at the Cook County boat shows demonstrates that Moulis operates \u201ca complete retail sales operation\u201d there, not merely the solicitation of business.\nIn our opinion, the Mosele and International Harvester decisions compel a determination that the corporation here is not \u201cdoing business\u201d in Cook County for venue purposes. Notwithstanding plaintiffs\u2019 assertions, we do not believe that the evidence reflects that the corporation is conducting its \u201cusual and customary\u201d business in Cook County via its boat show activities. While the corporation does solicit sales at the Cook County boat shows, and advertises in the Chicago Tribune newspaper, it appears that any resulting contract approval, financing, and deliveries are made outside of Cook County. In our opinion, such activities amount only to the solicitation of business, or services incidental thereto, and are not a proper basis for venue. (Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 368 N.E.2d 88.) While plaintiffs urge that the business derived from the corporation\u2019s presence at the Cook County boat shows is a \u201csubstantial\u201d portion of its total income, the record does not support this claim.\nRecognizing that venue is a \u201cvaluable privilege conferred upon the defendant\u201d which is to be given \u201cgreat weight,\u201d we hold that the trial court erred in denying Moulis Corporation\u2019s motion for a change of venue to McHenry County. Under the present facts we find that venue is proper in that county, and we remand this case for entry of an order transferring this cause to McHenry County.\nReversed and remanded with directions.\nHARTMAN, P.J., and STAMOS, J., concur.\nThe corporation asserts that venue would lie properly in either Lake or McHenry County. In the interest of judicial economy it requested transfer to McHenry County due to the pendency there of the companion case.", "type": "majority", "author": "JUSTICE PERLIN" } ], "attorneys": [ "Law Offices of Roderick J. Bergin, of Chicago (Deborah L. LaDolce, of counsel), for appellant Moulis Corporation. \u2022", "Floyd D. Perkins, of Chicago, for appellees." ], "corrections": "", "head_matter": "NORINE O\u2019NEILL, a Minor, by her Mother and Next Friend, Barbara O\u2019Neill, et al., Plaintiffs-Appellees. v. MOULIS CORPORATION, Indiv. and d/b/a Fox Lake Harbor, et al., Defendants-Appellants.\nFirst District (2nd Division)\nNo. 84\u20140387\nOpinion filed December 28, 1984.\nLaw Offices of Roderick J. Bergin, of Chicago (Deborah L. LaDolce, of counsel), for appellant Moulis Corporation. \u2022\nFloyd D. Perkins, of Chicago, for appellees." }, "file_name": "1044-01", "first_page_order": 1066, "last_page_order": 1072 }