{ "id": 221470, "name": "TCA INTERNATIONAL, INC., Plaintiff-Appellant, v. B and B CUSTOM AUTO, INC., d/b/a J and B Marketing, a/k/a Automotive Stylin' Warehouse, Defendant-Appellee", "name_abbreviation": "TCA International, Inc. v. B & B Custom Auto, Inc.", "decision_date": "1998-09-22", "docket_number": "No. 1-98-0252", "first_page": "522", "last_page": "534", "citations": [ { "type": "official", "cite": "299 Ill. App. 3d 522" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "550 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 767", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2497066 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0767-01" ] }, { "cite": "471 U.S. 462", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205101 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "476" }, { "page": "543" }, { "page": "2184" } ], "opinion_index": 0, "case_paths": [ "/us/471/0462-01" ] }, { "cite": "489 N.E.2d 1360", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "1363", "parenthetical": "a defendant \"can properly challenge a court's jurisdiction after a default judgment or order is entered\"" } ], "opinion_index": 0 }, { "cite": "111 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166933 ], "year": 1986, "pin_cites": [ { "page": "309", "parenthetical": "a defendant \"can properly challenge a court's jurisdiction after a default judgment or order is entered\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0304-01" ] }, { "cite": "565 N.E.2d 1302", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "1307, 1310" }, { "page": "1310", "parenthetical": "plaintiff \"failed to present any evidence establishing\" the relevant facts" } ], "opinion_index": 0 }, { "cite": "141 Ill. 2d 244", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238267 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "255, 261" }, { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0244-01" ] }, { "cite": "675 N.E.2d 1359", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1361", "parenthetical": "where facts and witness credibility are uncontroverted, a motion to suppress is reviewed de novo" } ], "opinion_index": 0 }, { "cite": "286 Ill. App. 3d 124", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544407 ], "year": 1997, "pin_cites": [ { "page": "126-27", "parenthetical": "where facts and witness credibility are uncontroverted, a motion to suppress is reviewed de novo" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0124-01" ] }, { "cite": "295 Ill. App. 3d 264", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45754 ], "year": 1998, "pin_cites": [ { "parenthetical": "de novo standard of review applies to administrative agency's determination when facts are undisputed" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0264-01" ] }, { "cite": "665 N.E.2d 534", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "536" } ], "opinion_index": 0 }, { "cite": "281 Ill. App. 3d 98", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150219 ], "year": 1996, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0098-01" ] }, { "cite": "562 N.E.2d 989", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1990, "pin_cites": [ { "page": "994" }, { "page": "994" }, { "page": "994" }, { "page": "993-94" }, { "page": "993-94" }, { "page": "993" } ], "opinion_index": 0 }, { "cite": "205 Ill. App. 3d 17", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2566188 ], "weight": 6, "year": 1990, "pin_cites": [ { "page": "25" }, { "page": "25" }, { "page": "25" }, { "page": "25" }, { "page": "25" }, { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/0017-01" ] }, { "cite": "576 N.E.2d 107", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "113-14" } ], "opinion_index": 0 }, { "cite": "215 Ill. App. 3d 880", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5295062 ], "year": 1991, "pin_cites": [ { "page": "890" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0880-01" ] }, { "cite": "594 N.E.2d 1190", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "1197" }, { "page": "1197" } ], "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 308", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5209428 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "318" }, { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0308-01" ] }, { "cite": "635 N.E.2d 590", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "593" }, { "page": "593" } ], "opinion_index": 0 }, { "cite": "263 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5366751 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "195" }, { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0191-01" ] }, { "cite": "695 N.E.2d 518", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1998, "opinion_index": 0 }, { "cite": "296 Ill. App. 3d 520", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222640 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "523", "parenthetical": "if there are disputes regarding issues of fact that \"determine whether the court has personal jurisdiction, the trial court must hear the testimony, evaluate its credibility, and resolve any material conflicts in the evidence\"" }, { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0520-01" ] }, { "cite": "430 N.E.2d 184", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 603", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3075028 ], "year": 1981, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0603-01" ] }, { "cite": "695 N.E.2d 572", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "579", "parenthetical": "uncontradicted allegations of jurisdictional facts regarding conspiracy, when pled with sufficient specificity, are sufficient to provide the circuit court with jurisdiction" } ], "opinion_index": 0 }, { "cite": "296 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222666 ], "year": 1998, "pin_cites": [ { "page": "989", "parenthetical": "uncontradicted allegations of jurisdictional facts regarding conspiracy, when pled with sufficient specificity, are sufficient to provide the circuit court with jurisdiction" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0978-01" ] }, { "cite": "421 N.E.2d 231", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1981, "pin_cites": [ { "page": "234-35" }, { "page": "235" }, { "page": "235" } ], "opinion_index": 0 }, { "cite": "96 Ill. App. 3d 243", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12128413 ], "weight": 5, "year": 1981, "pin_cites": [ { "page": "247" }, { "page": "247-48" }, { "page": "247-48" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0243-01" ] }, { "cite": "474 N.E.2d 1297", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 826", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3494768 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0826-01" ] }, { "cite": "483 N.E.2d 1291", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "136 Ill. App. 3d 1084", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3566321 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/136/1084-01" ] }, { "cite": "491 N.E.2d 39", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "42", "parenthetical": "\"since there was no evidentiary hearing on defendants' motion to dismiss, we will independently determine whether defendants' contacts with Illinois are sufficient to subject them to the jurisdiction of the Illinois courts\"" } ], "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 891", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3496206 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "895" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0891-01" ] }, { "cite": "498 N.E.2d 718", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 275", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3644720 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0275-01" ] }, { "cite": "530 N.E.2d 1382", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "125 Ill. 2d 144", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5554554 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-2d/125/0144-01" ] }, { "cite": "504 N.E.2d 942", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 782", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3574926 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0782-01" ] }, { "cite": "542 N.E.2d 792", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "796" } ], "opinion_index": 0 }, { "cite": "186 Ill. App. 3d 656", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2653748 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0656-01" ] }, { "cite": "601 N.E.2d 1031", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "1035" } ], "opinion_index": 0 }, { "cite": "235 Ill. App. 3d 452", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5785576 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/0452-01" ] }, { "cite": "648 N.E.2d 271", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "274-75" }, { "page": "275", "parenthetical": "\"[sjince the trial court did not hold an evidentiary hearing on the defendant's motion attacking its jurisdiction, our review of the issue is de novo\"" } ], "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 144", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249250 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "148" }, { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0144-01" ] }, { "cite": "654 N.E.2d 472", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "476" } ], "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 643", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291643 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0643-01" ] } ], "analysis": { "cardinality": 1248, "char_count": 32239, "ocr_confidence": 0.765, "pagerank": { "raw": 1.7030242171532184e-07, "percentile": 0.7012113447540764 }, "sha256": "089c991a0fbb5a0a073c6e28ee6b4f4f247f987186d2cac98608929acd999315", "simhash": "1:abf47d8ff9c767a3", "word_count": 5313 }, "last_updated": "2023-07-14T17:02:33.989314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CAHILL and BURKE, JJ., concur." ], "parties": [ "TCA INTERNATIONAL, INC., Plaintiff-Appellant, v. B and B CUSTOM AUTO, INC., d/b/a J and B Marketing, a/k/a Automotive Stylin\u2019 Warehouse, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE GORDON\ndelivered the opinion of the court:\nPlaintiff TCA International, Inc. (TCA), appeals from an order of the circuit court of Cook County granting the motion of defendant B&B Custom Auto, Inc. (J&B), to quash service and dismiss the action for lack of personal jurisdiction. We reverse and remand.\nFACTS\nIn September 1997 TCA filed an action against J&B in the circuit court for breach of contract. TCA, an Illinois corporation in the business of sale of automobile accessories, alleged in its complaint that J&B was \u201ca New Jersey corporation which transacted business in the State of Illinois and in other States including New Jersey purchasing and selling automobile parts and accessories.\u201d Plaintiff alleged that J&B placed telephone orders with TCA at TCA\u2019s offices in Glenview, Illinois, in response to which TCA shipped merchandise to J&B \u201cdirectly or indirectly from suppliers, both locally and internationally.\u201d It alleged that J&B had breached its contract with TCA by failing to pay for products it had ordered and which TCA had caused to be shipped to it from TCA\u2019s supplier in France. Invoices listing TCA\u2019s address in Glenview, Illinois, were attached to the complaint.\nIn October J&B entered a special and limited appearance under section 2 \u2014 301(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 301 (West 1994)) \u201cfor the sole purpose of objecting to the personal jurisdiction of the Court over [J&B].\u201d J&B moved to dismiss the action and quash service, arguing that Illinois could not exercise jurisdiction over it because it was merely a \u201cpassive,\u201d not an \u201cactive,\u201d purchaser, and it did not have sufficient contacts with this state.\nIn support of its motion, J&B attached an affidavit of its secretary and treasurer, Belfield Bovell. In his affidavit Bovell averred that J&B was a \u201csmall warehouse distributor\u201d (5000-square-foot warehouse) of automotive accessories to car dealerships and retail stores located primarily in New Jersey, with some active accounts in New York and Connecticut. Bovell stated that J&B did not and never had maintained an office, bank account, mail drop or telephone number in Illinois; it was not licensed to do business in Illinois; and it did not employ any individuals in Illinois. He averred that although he did send J&B\u2019s payments to a John Schelthoff, at the latter\u2019s request, Schelthoff informed him that he would forward the payments \u201cto TCA in France.\u201d\nBovell stated that he first became aware of TCA\u2019s products while attending the Specialty Equipment Market Association (SEMA) trade show in Las Vegas, Nevada, in October 1995. At the SEMA show he met Schelthoff, who introduced himself as a sales representative for TCA. Bovell averred that Schelthoff told him TCA \u201cwas an automotive accessory manufacturing company located in France. He also gave *** the impression that he was the only TCA representative in the United States.\u201d Bovell stated that Schelthoff took Bovell\u2019s card but he (Schelthoff) did not have any business cards or brochures. Schelthoff telephoned him (Bovell) three weeks later to inquire whether J&B still had any interest in distributing TCA\u2019s products and later sent him TCA\u2019s catalogues and brochures.\nJ&B subsequently placed several orders through Schelthoff for products shown in TCA\u2019s catalogues. Bovell averred that J&B never ordered goods that were to be specially manufactured, only stock items from TCA\u2019s catalogues. He stated that each time he placed an order, Schelthoff explained that delivery would take at least four weeks, since the goods would be shipped directly from TCA in France. Bovell stated that at all times he believed he was doing business with a foreign company. Bovell stated that all orders were shipped directly from TCA in France except that twice, when J&B\u2019s order was \u201cback-ordered\u201d in France, Schelthoff obtained the backordered goods \u201cfrom other United States customers of TCA\u201d and shipped them (a total of seven pieces in the two orders) directly to J&B. Bovell stated that J&B never negotiated with TCA regarding price; rather, Schelthoff offered J&B better prices and an opportunity to be the exclusive New York/ New Jersey TCA distributor if J&B increased its orders.\nAccording to Bovell, Schelthoff had discussed with him the possibility of using J&B\u2019s warehouse for its products because TCA did not have its own warehouse in the United States, which Bovell said on information and belief was still true. Bovell further stated that Schelthoff had visited J&B three times to check on delivery and shipment of items from France or to take inventory of TCA\u2019s goods stored in J&B\u2019s warehouse, but on information and belief, no J&B employee had ever visited Illinois for any J&B business purpose. He stated that two of Schelthoff\u2019s visits were at the request of a Jacques Djemad, who, according to what Schelthoff told Bovell, was an owner of TCA.\nBovell stated that in July 1996 he telephoned Schelthoff regarding a late delivery and shortly thereafter received a telephone call from Djemad to apologize and explain the delay. Djemad also called Bovell from France several times to discuss payment of J&B\u2019s outstanding invoices. When Bovell told Djemad in April 1997 that J&B was having difficulty \u201cmoving the goods\u201d because of market conditions, Djemad stated that either J&B would have to return the goods or tender payment in full. Later, on a conference call with Djemad and Schelthoff, Bovell agreed to return the goods, but in June Schelthoff told him that Djemad had changed his mind and \u201cJ&B could expect to be sued for nonpayment on the outstanding invoices.\u201d\nIn November 1997 TCA filed a response to J&B\u2019s motion to dismiss, attaching the counteraffidavit of John Schelthoff, Jr., president of TCA. In his affidavit, Schelthoff stated that TCA was an Illinois corporation, located at all relevant times at 1775 Chestnut Avenue, Glenview, Illinois. TCA is the United States distributor of automobile accessories manufactured by TCA Distribution S.A., a French corporation (TCA France).\nSchelthoff stated that he was in charge of the TCA booth at the SEMA show in Las Vegas in October 1995 and at all times he wore a required \u201cOfficial Exhibitor Badge\u201d (a copy of which was attached as an exhibit to Schelthoff s affidavit), which stated in part \u201cJohn Schelthoff, TCA International, Inc., Glenview, IL.\u201d He also stated that he gave business cards and brochures (copies of which were also attached as exhibits to the affidavit) \u201cto all people who visited the [TCA] booth and who requested such materials.\u201d Both his business card and the brochures listed TCA\u2019s office as Glenview, Illinois. He denied ever introducing himself to anyone as a sales representative for TCA France.\nSchelthoff averred (contrary to Bovell\u2019s affidavit) that he (Schelthoff) did not telephone J&B after the trade show. Rather, he asserted, Bovell contacted him \u201cby telephone call into Plaintiffs office in the State of Illinois\u201d professing his interest in becoming TCA\u2019s exclusive distributor in the northeast and requesting a price sheet. Schelthoff stated that he sent a price sheet to Bovell. That sheet, a copy of which was attached to Schelthoff s affidavit, listed TCA\u2019s address in Glen-view, Illinois, and stated that prices included shipping costs \u201cbased on minimum order quantity. Other orders are shipped F.O.B. Glenview, IL.\u201d Schelthoff also stated that he later sent Bovell a copy of an article from Motor Trend magazine about TCA (a copy of which was attached as an exhibit to his affidavit) which listed TCA\u2019s address as Glenview, Illinois.\nSchelthoff asserted that after he sent the price list to Bovell, Bovell \u201cproceeded to order merchandise from [TCA] by placing orders by telephone into the State of Illinois.\u201d He averred that the products sold to J&B \u201crequired five to six weeks of lead time for manufacture\u201d and \u201cwere manufactured to order for vehicles sold primarily in the United States,\u201d and that J&B was \u201cbilled from the State of Illinois\u201d and \u201cmade payments into the State of Illinois.\u201d Attached as an exhibit to the affidavit were copies of J&B\u2019s cancelled checks, which reflected having been deposited into TCA\u2019s account at Citibank, FSB, in Chicago, Illinois. Another exhibit to Schelthoff s affidavit were invoices which, on their faces, identify TCA\u2019s location as Glenview, Illinois.\nSchelthoff also stated that TCA warehoused merchandise at All Freight in Illinois and that J&B knew this fact. TCA supported this assertion with an exhibit attached to Schelthoff s affidavit of a copy of an invoice with instructions to All Freight to ship a particular piece of merchandise to J&B. Another exhibit to the affidavit was a bill of lading for shipment from All Freight, in Illinois, to J&B, with a J&B fax imprint thereon. Schelthoff maintained that the fact that J&B faxed a copy of the All Freight bill of lading back to TCA \u201cmanifested] its full knowledge that the accessories were being shipped from Plaintiffs Illinois warehouse to the Defendant.\u201d Finally, Schelthoff stated that Djemad was an employee of TCA France but had never been \u201can officer, director, employee or agent\u201d of TCA and \u201cnever had any authority to act for [TCA], or to negotiate a settlement with [J&B].\u201d\nJ&B filed a reply brief with a supplemental affidavit from Bovell. Bovell averred in the supplemental affidavit that when J&B placed its orders with TCA, both parties contemplated that all of the goods would be manufactured in France and shipped directly to J&B in New Jersey. He stated that of the approximately 780 total parts J&B ordered, 760 were shipped directly from France to New Jersey, approximately 20 parts were never shipped, and a total of 7 parts were shipped from Illinois on two occasions when J&B was backordered. He stated that he did not recall seeing Schelthoff wearing the exhibitor badge at the SEMA show, and Schelthoff did not mention at SEMA that TCA would be featured in a Motor Trend article. Bovell also averred that he had several telephone conversations with Djemad because of Schelthoff s statements that Djemad was the \u201cTCA official who possessed the authority to resolve the issues in dispute between J&B and TCA, and that Schelthoff did not have such authority.\u201d Bovell attached as an exhibit to his affidavit a copy of J&B\u2019s telephone records for April 1997, which includes a telephone call to France.\nIn January 1998 the circuit court entered an order granting J&B\u2019s motion to dismiss. The court found it unnecessary to determine whether J&B committed one of the acts allowing Illinois to assert jurisdiction under its long-arm statute (735 ILCS 5/2 \u2014 209 (West 1994)), because jurisdiction was barred by the due process clause of the Constitution of the State of Illinois. The court found J&B\u2019s contacts with Illinois to be \u201crandom, fortuitous or attenuated and insufficient to sanction the exercise of in personam jurisdiction over it by this Court.\u201d\nTCA filed this appeal in January 1998. It argues that the circuit court erred in determining that J&B\u2019s contacts were insufficient to allow Illinois courts to assert jurisdiction over it. TCA asserts that J&B\u2019s purposeful placement of telephone orders into Illinois and making payments into Illinois constituted sufficient contacts for jurisdiction to attach in Illinois. For the reasons given below, we reverse and remand.\nANALYSIS\nI. BURDEN OF PROOF AND STANDARD OF REVIEW\nTwo threshold issues we must reach before we can analyze the circuit court\u2019s ruling are (1) what was plaintiffs burden in the circuit court, and (2) what is our standard of review. Appellant has not addressed either question, notwithstanding that the latter omission contravenes the requirements of amended Supreme Court Rule 341(e)(3) (155 Ill. 2d R. 341(e)(3)) (appellant must include in his brief \u201ca concise statement of the applicable standard of review for each issue, with citation to authority\u201d). Appellee, on the other hand, asserts in its brief that the party seeking to impose jurisdiction (TCA) had to establish jurisdiction by a preponderance of the evidence at the circuit court level and that our review is governed by the manifest weight of the evidence standard. However, as shall be discussed, our review reveals an apparent chasmatic split of authority on these questions. Accordingly, notwithstanding appellant\u2019s failure to address these threshold issues, we feel compelled to do so rather than simply accepting appellee\u2019s unchallenged assertion.\nA substantial line of authorities appears to adhere to the positions that (1) a plaintiff can rebut a challenge to a court\u2019s personal jurisdiction over a defendant by merely establishing a prima facie case of jurisdiction, and (2) any conflicts in the pleadings and affidavits must be resolved in the plaintiffs favor when deciding this issue. E.g., D.S. America (East), Inc. v. Elmendorf Grafica, Inc., 274 Ill. App. 3d 643, 649, 654 N.E.2d 472, 476 (1995); E.A. Cox Co. v. Road Savers International Corp., 271 Ill. App. 3d 144, 148, 648 N.E.2d 271, 274-75 (1995); Alpert v. Bertsch, 235 Ill. App. 3d 452, 459, 601 N.E.2d 1031, 1035 (1992); Japax, Inc. v. Sodick Co., 186 Ill. App. 3d 656, 663, 542 N.E.2d 792, 796 (1989); Wiles v. Morita Iron Works Co., 152 Ill. App. 3d 782, 504 N.E.2d 942 (1987), rev\u2019d on other grounds, 125 Ill. 2d 144, 530 N.E.2d 1382 (1988); Gordon v. Tow, 148 Ill. App. 3d 275, 498 N.E.2d 718 (1986); Mandalay Associates, Ltd. Partnership v. Hoffman, 141 Ill. App. 3d 891, 491 N.E.2d 39 (1986); Professional Group Travel, Ltd. v. Professional Seminar Consultants, Inc., 136 Ill. App. 3d 1084, 483 N.E.2d 1291 (1985); Financial Management Services, Inc. v. Sibilsky & Sibilsky, Inc., 130 Ill. App. 3d 826, 474 N.E.2d 1297 (1985); Kutner v. DeMassa, 96 Ill. App. 3d 243, 247, 421 N.E.2d 231, 234-35 (1981). Under this approach, the function of the trial court is merely to determine whether the necessary elements of personal jurisdiction have been alleged in plaintiffs affidavit(s) and uncontradicted pleadings. See Cameron v. Owens-Corning Fiberglas Corp, 296 Ill. App. 3d 978, 989, 695 N.E.2d 572, 579 (1998) (uncontradicted allegations of jurisdictional facts regarding conspiracy, when pled with sufficient specificity, are sufficient to provide the circuit court with jurisdiction); Kutner, 96 Ill. App. 3d at 247-48, 421 N.E.2d at 235. Once the court determines that the necessary elements establishing jurisdiction have been alleged in plaintiffs submissions, the trial court must find jurisdiction to have been established without further inquiry, even though the relevant facts in plaintiff\u2019s affidavit(s) are contradicted by defendant\u2019s counteraffidavit(s). Consequently, review of the trial court\u2019s determination is de novo, as it is made solely from the face of the documents with no weighing of evidence or determinations of credibility. See Cox, 271 Ill. App. 3d at 148, 648 N.E.2d at 275 (\u201c[sjince the trial court did not hold an evidentiary hearing on the defendant\u2019s motion attacking its jurisdiction, our review of the issue is de novo\u201d), citing Mandalay, 141 Ill. App. 3d at 895, 491 N.E.2d at 42 (\u201csince there was no evidentiary hearing on defendants\u2019 motion to dismiss, we will independently determine whether defendants\u2019 contacts with Illinois are sufficient to subject them to the jurisdiction of the Illinois courts\u201d), citing Zeunert v. Quail Ridge Partnership, 102 Ill. App. 3d 603, 607, 430 N.E.2d 184 (1981).\nSeveral recent cases have departed from this position, holding that the plaintiff (or whatever party asserts personal jurisdiction exists) must establish jurisdiction by a preponderance of the evidence. See Stein v. Rio Parismina Lodge, 296 Ill. App. 3d 520, 695 N.E.2d 518 (1998); Dilling v. Sergio, 263 Ill. App. 3d 191, 195, 635 N.E.2d 590, 593 (1994); Rokeby-Johnson v. Derek Bryant Insurance Brokers, Ltd., 230 Ill. App. 3d 308, 318, 594 N.E.2d 1190, 1197 (1992); People ex rel. Hartigan v. Kennedy, 215 Ill. App. 3d 880, 890, 576 N.E.2d 107, 113-14 (1991); Finnegan v. Les Pourvoiries Fortier, Inc., 205 Ill. App. 3d 17, 25, 562 N.E.2d 989, 994 (1990). Under this approach, conflicts between the affidavits filed by plaintiff and defendant are not to be resolved in favor of plaintiff, but are to be tested and weighed. The standard of review under this line of authority is thus not de novo, but one of determining the manifest weight of the evidence. Dilling, 263 Ill. App. 3d at 195, 635 N.E.2d at 593; Rokeby-Johnson, 230 Ill. App. 3d at 318, 594 N.E.2d at 1197; Finnegan, 205 Ill. App. 3d at 25, 562 N.E.2d at 994.\nThe seminal case for this second approach \u2014 indeed, the only authority cited by the other cases espousing the second approach \u2014 is Finnegan. Finnegan, in turn, relies upon the reasoning of Professor Michael in his treatise on Illinois procedure (3 R. Michael, Illinois Practice (1989)) (Michael). Professor Michael points out that Kutner and the other cases which hold that the plaintiff need merely establish a prima facie case are based solely on federal precedent. According to Michael, \u201c[t]he federal cases are, however, clearly inapplicable because of a difference in federal procedure.\u201d 3 Michael \u00a7 6.2, at 61. See Finnegan, 205 Ill. App. 3d at 25, 562 N.E.2d at 994. Finnegan observed, in reliance on Professor Michael, that whereas in federal courts personal jurisdiction is only preliminarily addressed before trial but may be fully litigated on the merits at trial (similar to summary judgment):\n\u201cin Illinois, the special appearance (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 301) is a defendant\u2019s \u2018sole opportunity to defeat the jurisdiction of the court.\u2019 (3 R Michael, \u00a7 6.2, at 61.) We agree with Professor Michael\u2019s observation that:\n\u2018To extend [the federal] rule to Illinois *** is, at best, to reverse the burden of proof, and at worst [to] deprive the defendant of the constitutional right to due process of law by holding the defendant subject to jurisdiction whenever there is a conflict in the evidence without resolving that conflict.\u2019 (3 R Michael, \u00a7 6.2, at 61.)\u201d Finnegan, 205 Ill. App. 3d at 25, 562 N.E.2d at 993-94.\nFor the reasons expressed by Professor Michael and amplified in Finnegan, we believe that as between the first approach, adhering to the prima facie test, and the second approach, which would require weighing the evidence, the latter is by far the more sensible and better reasoned. See Finnegan, 205 Ill. App. 3d at 25, 562 N.E.2d at 993-94. The latter approach also finds clear support in the plain language of section 2 \u2014 301 of the Code. The statute requires the circuit court to consider \u201cany evidence adduced upon disputed issues of fact\u201d in ruling on objections to personal jurisdiction. 735 ILCS 5/2 \u2014 301(b) (West 1996). And section 2 \u2014 301 unequivocally implies that the circuit court may resolve issues of fact in ruling on such a motion, by virtue of its provision that \u201c[n]o determination of any issue of fact in connection with the objection is a determination of the merits of the case or any aspect thereof.\u201d 735 ILCS 5/2 \u2014 301(b) (West 1996).\nWe note that the prima facie standard would not be wholly discarded under the Mich&el/Finnegan approach. When the jurisdictional issue may be completely resolved from the face of the affidavits and pleadings, analysis need not go beyond the prima facie standard. However, this will only be the case when the relevant assertions are uncontradicted. In other cases, the proper mode of jurisdictional analysis will be a two-step process incorporating the tests from both lines of cases. See 3 Michael \u00a7 10.4, at 123 (\u201c[i]f the court can decide the issue from this material [the pleadings or other documents on file or affidavits] without weighing the affidavits, it may. If not the court has authority to hold an evidentiary hearing\u201d); Stein, 296 Ill. App. 3d 520, 695 N.E.2d 518.\nAs noted above, the statute clearly envisions the circuit court making findings of fact in determining jurisdictional issues. See 735 ILCS 5/2 \u2014 301(b) (West 1996). Such findings of fact would be made after a hearing, at which the circuit court would receive the \u201cevidence adduced upon disputed issues of fact.\u201d See 735 ILCS 5/2 \u2014 301(b) (West 1996). But obviously, there would be no need for a hearing if the party asserting jurisdiction could not establish even a prima facie case. Accordingly, it would appear that the first question in ruling on a special appearance is whether plaintiff has established a prima facie case of jurisdiction through the untraversed pleadings, documents and affidavits. In making this determination, the circuit court must resolve in favor of the plaintiff (or other party urging jurisdiction) any conflicts between affidavits. Concomitantly, at this juncture the court must also accept as true any facts averred by the defendant (or other party opposing jurisdiction) that have not been contradicted by an affidavit submitted by plaintiff. See Kutner, 96 Ill. App. 3d 243, 421 N.E.2d 231 (affirming circuit court\u2019s determination that Illinois had no jurisdiction over defendant because defendant\u2019s affidavit alleged facts establishing that plaintiff had no prima facie case of jurisdiction). If plaintiff has failed to establish a prima facie case, the inquiry is at an end and the defendant\u2019s motion should be granted. On appeal from an order dismissing a case on this basis our standard of review would be de novo, as it would involve \u201csolely the application of law to undisputed facts.\u201d Farmers State Bank v. Neese, 281 Ill. App. 3d 98, 101, 665 N.E.2d 534, 536 (1996); see also Nokomis Quarry Co. v. Department of Revenue, 295 Ill. App. 3d 264 (1998) (de novo standard of review applies to administrative agency\u2019s determination when facts are undisputed); People v. Bascom, 286 Ill. App. 3d 124, 126-27, 675 N.E.2d 1359, 1361 (1997) (where facts and witness credibility are uncontroverted, a motion to suppress is reviewed de novo).\nHowever, in most cases a determination that plaintiff has established a prima facie case of jurisdiction will not end the inquiry. If the trial court finds plaintiff has established a prima facie case, it must next determine whether there are any controverted jurisdictional facts. If so, it must hold a hearing to resolve these facts. Stein, 296 Ill. App. 3d at 523 (if there are disputes regarding issues of fact that \u201cdetermine whether the court has personal jurisdiction, the trial court must hear the testimony, evaluate its credibility, and resolve any material conflicts in the evidence\u201d). Such a hearing should be granted in any case in which facts averred in the defendant\u2019s affidavits contradict the relevant facts in plaintiff\u2019s affidavit, i.e., where defendant has established a prima facie case of a lack of jurisdiction. In those cases in which the circuit court holds a hearing and determines issues of fact, we will reverse the circuit court\u2019s result only if it is against the manifest weight of the evidence. Stein, 296 Ill. App. 3d 520, 695 N.E.2d 518.\nThus, whether plaintiff must establish merely a prima facie case or .must establish jurisdiction by a preponderance of the evidence depends on the phase of the circuit court\u2019s analysis. First, the circuit court must determine whether plaintiff has established even a prima facie case for jurisdiction, resolving all conflicts in his favor. If plaintiff cannot meet even this minimal burden, there is no need to make any further inquiry. Nor is there any reason to proceed further if defendant has failed to contradict plaintiffs prima facie case. However, if there exists on the face of the affidavits a factual dispute, which if resolved in defendant\u2019s favor would preclude the imposition of jurisdiction, the court \u201cmust hear the testimony, evaluate its credibility, and resolve any material conflicts in the evidence\u201d (Stein, 296 Ill. App. 3d at 523), requiring plaintiff to prove jurisdiction by a preponderance of the evidence.\nThis mode of jurisdictional inquiry in the circuit court and on appeal is in closest conformity with the statute (735 ILCS 5/2 \u2014 301 (West 1996)) and the requirements of due process. It is also consistent even with the majority of the cases that purport to espouse a prima facie standard for establishing jurisdiction. In four of those cases plaintiff failed to establish a prima facie case; accordingly, there was no need to reach the second step in what we conclude to be the complete analysis. See Alpert, 235 Ill. App. 3d 452, 601 N.E.2d 1031; Gordon, 148 Ill. App. 3d 275, 498 N.E.2d 718; Professional Group Travel, 136 Ill. App. 3d 1084, 483 N.E.2d 1291; Kutner, 96 Ill. App. 3d 243, 421 N.E.2d 231. Two other cases determined that defendant was subject to jurisdiction based on uncontroverted facts. D.S. America, 274 Ill. App. 3d 643, 654 N.E.2d 472; Cox, 271 Ill. App. 3d 144, 648 N.E.2d 271. In these cases also, as noted above, there was no need for a hearing. One of the remaining cases was reversed by the supreme court. Wiles, 152 Ill. App. 3d 782, 504 N.E.2d 942, rev\u2019d, 125 Ill. 2d 144, 530 N.E.2d 1382.\nThe remaining cases espousing the prima facie standard do appear to have exercised jurisdiction over nonresidents notwithstanding the presence of averments in the nonresidents\u2019 affidavits which, if true, would have negated the residents\u2019 prima facie cases. See Japax, 186 Ill. App. 3d 656, 542 N.E.2d 792 (assertions by nonresident parent company that it did not control its resident wholly owned subsidiary nor did it ever contract in Illinois for advertising or decide where its products would be sold); Mandalay, 141 Ill. App. 3d 891, 491 N.E.2d 39 (assertions by nonresidents that their agent came to Illinois \u201conly at the specific request of plaintiffs\u201d); Financial Management Services, 130 Ill. App. 3d 826, 474 N.E.2d 1297 (assertions by nonresidents that their activities were conducted in their corporate capacities and were thus subject to protection under the fiduciary shield doctrine). With the analysis employed in these cases we simply disagree, for the reasons stated above. Due process requires a nonresident defendant to have the requisite connection with the forum state (the standard for which will be discussed below); it is not enough that the plaintiff simply allege that defendant has that connection when defendant states that the facts are otherwise. It is not acceptable to require a nonresident to defend itself against a claim when it has alleged facts that, if true, would negate jurisdiction, without determining what the facts are. See 3 Michael \u00a7 6.2, at 61 (to apply the prima facie standard in Illinois \u201cis, at best, to reverse the burden of proof, and at worst [to] deprive the defendant of the constitutional right to due process of law by holding the defendant subject to jurisdiction whenever there is a conflict in the evidence without resolving that conflict\u201d). Such a rule would allow a plaintiff to hale any defendant into court simply by filing one perjurious affidavit, which cannot be condoned. The two-step process that we have set out protects both the due process interests of nonresident defendants and Illinois courts\u2019 interests in judicial economy, where the latter can be served without sacrificing the former.\nFinally, we recognize that in Rollins v. Ellwood, 141 Ill. 2d 244, 565 N.E.2d 1302 (1990), the circuit court decision under review had analyzed the issue of personal jurisdiction by the Kutner prima facie test and our supreme court did not explicitly criticize that approach. Rollins, 141 Ill. 2d at 255, 261, 565 N.E.2d at 1307, 1310. However, Rollins is reconcilable with our analysis for the same reason as Alpert, Gordon, Professional Group Travel, and Kutner: Rollins found that the plaintiff had not even established a prima facie case of jurisdiction. Rollins, 141 Ill. 2d at 263, 565 N.E.2d at 1310 (plaintiff \u201cfailed to present any evidence establishing\u201d the relevant facts). There was no need for the court to determine what plaintiffs burden was, because the plaintiff failed to meet even the most minimal burden. Consequently, we do not read Rollins as endorsing an extreme prima facie approach, where a prima facie case ends the analysis, even if the facts are controverted.\nII. SUFFICIENCY OF JURISDICTIONAL CONTACTS\nCONCLUSION\nFor the reasons above stated, we reverse the order of the circuit court dismissing the action and quashing service on J&B and remand for further proceedings.\nReversed and remanded.\nCAHILL and BURKE, JJ., concur.\nBy \u201cuncontradicted\u201d we mean uncontradicted by an affidavit filed by defendant. Statements in plaintiffs pleadings that defendant does not controvert in his affidavit are taken as true. However, where defendant\u2019s affidavit contains factual assertions that vary from those in the complaint, the affidavit controls. Finally, however, if plaintiff files a counteraffidavit that contains statements at odds with any statements in defendant\u2019s affidavit, the assertions in plaintiffs counteraffidavit control. Kutner, 96 Ill. App. 3d at 247-48, 421 N.E.2d at 235.\nAs Michael observes, the cases \u201ccite only each other or federal cases.\u201d 3 Michael \u00a7 6.2, at 61.\nAs an aside, we note that a special appearance is not, strictly speaking, the \u201c \u2018sole opportunity to defeat the jurisdiction of the court\u2019 \u201d (Finnegan, 205 Ill. App. 3d at 25, 562 N.E.2d at 993, quoting 3 Michael \u00a7 6.2, at 61). A party may also contest jurisdiction by refusing to participate in a suit even to the extent of filing a special appearance, then collaterally attacking any default judgment entered against it. See R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309, 489 N.E.2d 1360, 1363 (1986) (a defendant \u201ccan properly challenge a court\u2019s jurisdiction after a default judgment or order is entered\u201d); 3 Michael \u00a7 10.7, at 127-28. However, the special appearance would seem to be the only means of contesting jurisdiction without risking a default judgment. 3 Michael \u00a7 10.7, at 127-28. A party cannot both file a special appearance and, if unsuccessful, subsequently attack a judgment collaterally. 3 Michael \u00a7 10.7, at 128.\nThe second issue to be addressed is whether TCA did in fact establish a prima facie case of personal jurisdiction over J&B. We conclude that TCA did establish a prima facie case. Because of the page limitations imposed under revised Supreme Court Rule 23 (166 Ill. 2d R. 23), we are compelled to delete our discussion of this issue from the published portion of this decision. However, our discussion of this issue is part of the unpublished portion of this decision.\nIn brief summary for the benefit of the reader of the published decision, we conclude that TCA established personal jurisdiction over J&B through the affidavit of Schelthoff. The operative facts are that J&B, through Bovell, affirmatively initiated an ongoing business relationship of approximately 19 months\u2019 duration by contacting Schelthoff in Illinois; Bovell expressed interest in J&B becoming TCA\u2019s sole distributor in the northeast; Bovell repeatedly placed purchase orders by placing telephone calls to an Illinois telephone number; and J&B received a 30% discount on at least some of its orders. These factors combine to establish that J&B \u201ccreated \u2018continuing obligations\u2019 between [it]self and residents of\u2019 Illinois, making it \u201cpresumptively not unreasonable to require [it] to submit to the burdens of litigation in that forum as well.\u201d See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 85 L. Ed. 2d 528, 543, 105 S. Ct. 2174, 2184 (1985). We also find that J&B\u2019s attempt to portray itself as a mere \u201cpassive purchaser\u201d (see Chalek v. Klein, 193 Ill. App. 3d 767, 550 N.E.2d 645 (1992)) is unavailing, primarily because of the ongoing nature of the relationship between TCA and J&B. A full, unabridged text of this decision is on file with the clerk of this court under docket No. 1 \u2014 98\u2014 0252.", "type": "majority", "author": "JUSTICE GORDON" } ], "attorneys": [ "Edward S. Margolis, of Teller, Levit & Silvertrust, PC., of Chicago, for appellant.", "Michael J. Hayes and John T. Roache, both of Gardner, Carton & Douglas, of Chicago, for appellee." ], "corrections": "", "head_matter": "TCA INTERNATIONAL, INC., Plaintiff-Appellant, v. B and B CUSTOM AUTO, INC., d/b/a J and B Marketing, a/k/a Automotive Stylin\u2019 Warehouse, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 1\u201498\u20140252\nOpinion filed September 22, 1998.\nEdward S. Margolis, of Teller, Levit & Silvertrust, PC., of Chicago, for appellant.\nMichael J. Hayes and John T. Roache, both of Gardner, Carton & Douglas, of Chicago, for appellee." }, "file_name": "0522-01", "first_page_order": 540, "last_page_order": 552 }