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    MARY ANN FINNEGAN, as Special Adm’r of the Estate of John Finnegan, Deceased, Plaintiff-Appellant, v. LES POURVOIRIES FORTIER, INC., et al., Defendants-Appellees. — SUSAN LASKY, as Special Adm’r of the Estate of Richard R. Samson, Deceased, Plaintiff-Appellant, v. LES POURVOIRIES FORTIER, INC., et al., Defendants-Appellees.—AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Special Adm’r of the Estate of Joseph Sukzda, Deceased, Plaintiff-Appellant, v. LES POURVOIRIES FORTIER, INC., et al., Defendants-Appellees.—GERALDINE KEARNS, as Adm’r of the Estate of Edward Kearns, Jr., Deceased, et al., Plaintiffs-Appellants, v. LES POURVOIRIES FORTIER, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    Nos. 1—88—0370, 1—88—0382, 1—88—0523, 1—88—0553 cons.
    Opinion filed September 28, 1990.
    Rehearing denied November 16, 1990.

      Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Kenneth C. Miller, and Joy L. Sparling, of counsel), for appellant Robert J. Langkamp.
    Arvey, Hodes, Costello & Burman, of Chicago (George L. Crumley, Rosemarie J. Guadnolo, and Thomas F. Sax, of counsel), for appellant Geraldine Kearns.
    John J. Kennedy, of Chicago (Joseph A. Bosco and Kevin M. Forde, of counsel), for other appellants.
    Haskel & Perrin, of Chicago (Donald M. Haskell, Michael J. Sehr, and Andrew Kochanowski, of counsel), for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

These consolidated appeals arise from an airplane crash on September 30, 1985, in Quebec, Canada, in which all persons aboard perished, including the pilot and six Illinois residents. The appeals are taken from the dismissal of the actions for damages brought by the estates of four of the deceased Illinoisans.

At the time of the accident, the victims were en route from a caribou hunting trip in northern Quebec to the airport in Schefferville, Quebec. Plaintiffs filed wrongful death actions in circuit court against Les Pourvoiries Fortier, Inc. (Fortier, Inc.), as owner and operator of the aircraft, alleging negligence in its operation and maintenance. The complaints also alleged that Wyco Enterprises of Illinois, Inc. (Wyco), and Sheila Wyer (Mrs. Wyer), as administrator of the estate of Joseph T. Wyer (Wyer), deceased, were negligent in the planning and handling of the trip of plaintiffs’ decedents. Mrs. Wyer cross-claimed in the other plaintiffs’ suits against Fortier, Inc., for the wrongful death of her husband.

Fortier, Inc., filed a special and limited appearance and a motion to quash service and dismiss, claiming that the service of process on it was improper and that the court lacked in personam jurisdiction. The circuit court granted defendant’s motion, and dismissed plaintiffs’ complaints; the court later certified its order pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), and plaintiffs filed timely notices of appeal.

The following issues are presented for our review: (1) whether the circuit court correctly determined that defendant was not present or “doing business” in Illinois through Wyer and Wyco and therefore is not subject to the in personam jurisdiction of Illinois courts under the “doing business” doctrine; (2) whether the circuit court correctly determined that defendant is not subject to the in personam jurisdiction of Illinois courts under the Illinois “long-arm statute” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(a)(1)); and (3) whether the circuit court properly quashed service of process. We affirm.

In support of its motion to quash service of process and to dismiss, defendant filed two affidavits of Albert Fortier (Fortier), owner and manager of Fortier, Inc. In response, plaintiffs filed two affidavits and the deposition of Joseph Bartuch (Bartuch), an affidavit of Mrs. Wyer and documentary evidence consisting in large part of correspondence between defendant and Wyco. With the exception of three factual inconsistencies which will be addressed later, the facts are not in dispute.

Fortier, Inc., was a Canadian corporation which owned and operated Wedge Hills Lodge, a small hunting and fishing facility near Schefferville, Quebec, about 150 miles northwest of Montreal, in a subarctic, French-speaking region of Canada. The company organized seasonal fishing and hunting expeditions, providing transportation for parties on a Beech-18 airplane from Schefferville to the lodge, which is nearly inaccessible by other means. Fortier, a French-Canadian, owned and managed the business.

Wyco was an Illinois corporation which specialized in the outdoors sporting business. Before the fatal crash, its only employee and sole shareholder was Wyer, a Chicago-area professional outdoors sportsman. Wyer produced and hosted a half-hour television hunting and fishing program called the “Outdoors Sportsman,” which aired regularly from 1978 to 1985 on channel 26 in Chicago. He sold time for commercials advertising a variety of outdoors-related products, services and lodges. To gather material for the program, Wyer would visit various hunting lodges in northern United States and Canada, and was generally paid a commission by them if he brought back a group of hunters.

Wyer first contacted Fortier when he and Bartuch, a photographer, travelled to Wedge Hills Lodge for a week in August 1984 to make a videotape for Wyer’s television show. During their stay, Wyer and Bartuch had a total of four conversations with Fortier, who participated through an unidentified French-English translator.

One of the conversations concerned Wyer’s bringing his clients to the lodge in the next caribou hunting season. He asked Fortier about the number of people the lodge could accommodate and specific available hunting dates; they also discussed Fortier’s prices. Fortier said he would give Wyer a 15% finder’s fee for any hunters Wyer would bring to the lodge. The conversation concluded with an understanding that Fortier would provide Wyer with available dates that Wyer would pass along to his clients for a caribou hunt at the lodge in the fall of 1985. During the course of other conversations, Wyer told Fortier about the television coverage the lodge would get on Wyer’s show. Nothing that came of this meeting was reduced to writing.

Between October 1984, when Wyer first visited Wedge Hills Lodge, and September 1985, when Wyer returned to the lodge with a group of hunters, Wyer and Fortier exchanged seven letters and several telephone calls. In the first letter, dated October 17, 1984, Wyer thanked Fortier for the opportunity to film at Fortier’s lodge. In response to a telephone call from Wyer, on October 31, 1984, the lodge’s secretary confirmed by letter Wyer’s bookings for several persons for a week’s stay at the lodge on three separate hunting dates. The third correspondence was a letter from Wyer to Fortier on January 29, 1985, in which Wyer provided a list of prospective clients for the September 1985 expedition and a deposit on behalf of his group in the form of a check drawn on a bank in London, Ontario, where Wyer had previously opened an account. This letter also mentioned that Wyer’s television show featured film footage of the lodge and that a videotape was being sent to Fortier. In the fourth letter, on February 12, 1985, Fortier acknowledged receipt of the deposit and confirmed Wyer’s reservations. In response to a call from Wyer, on July 2, 1985, the lodge’s secretary sent Wyer the names of two Canadian hunters with whom Wyer had hunted at the lodge. In a sixth letter, on July 31, 1985, Wyer sent Fortier a check for $23,000 Canadian as a further downpayment for the impending hunting trips. Fortier had scheduled 10 hunters, including Wyer, for September 23, 1985, and 12 hunters for September 25, 1985. Wyer’s letter indicated that he did not intend to pay for his own trip. However, in the seventh letter, on August 6, 1985, the lodge’s secretary made it clear to Wyer, in behalf of Fortier, that since Wyer was being paid a 15% commission, he would have to pay for his own trip. Wyer later did so. A check dated September 24, 1985, for $6,900 Canadian represented the balance owed Fortier. Again, the check was drawn on Wyer’s account at the London, Ontario, bank.

The fee of $2,000 Canadian per hunter charged by Fortier did not include transportation to and from Schefferville. Wyer charged each of his clients $2,100 for the same package. Wyer made all of the necessary travel arrangements for his clients from Chicago to Schefferville and back.

After his initial visit to Wedge Hills Lodge, Wyer engaged in various activities in Illinois relating to Fortier, Inc. At a booth he sponsored at the Outdoors Show in Chicago in February 1985, Wyer distributed some promotional literature he had received from Fortier describing the lodge and prices. A Wyco brochure entitled “Hunting” advertised five different tours that Wyer planned in 1985, including the trip to Wedge Hills Lodge. A Wyco brochure entitled “Trophy Caribou Black Bear Ptarmigan” described the lodge and gave a tour price including air fares from Chicago. Bartuch testified as to an “informational” commercial advertising Wedge Hills Lodge which aired an unknown number of times on Wyer’s television show. The commercial stated that Wyer and Wedge Hills Lodge had “joined forces” to provide the hunting package. However, in his affidavit Fortier stated that he had neither authorized nor paid for that commercial. Finally, Wyer made all of the travel arrangements for himself and his clients for the September 1985 tours. It was on one of these tours that the airplane crash giving rise to this litigation occurred.

The activities of Fortier, Inc., are almost exclusively centered in Canada. All of the company’s promotional literature listed only a Canadian telephone number. Its only place of business was in Quebec, Canada. Fortier, Inc., was incorporated in Quebec and performed transportation services for its clients solely within Quebec. Fortier, Inc., also engaged in the business of fish and game outfitting in Quebec. None of its goods had ever been sold in Illinois. The company had never been incorporated or registered in Illinois and did not have a designated agent for service of process in this State. Furthermore, Fortier, Inc., did not maintain an Illinois telephone listing, operate a sales representative or office here, and had never sent an employee to this State for the purpose of transacting or promoting business. For-tier, Inc., did, however, advertise in three nationally distributed American sports magazines, published in Ohio, New York and Oregon, which are available in Illinois. The classified advertisements listed a contact number in Quebec.

As defendant points out in its brief, three factual discrepancies exist in the documentation which the circuit court considered in ruling on its motion to quash and dismiss. First, some plaintiffs allege that Wyer made not two, but three trips to Wedge Hills Lodge, the first being in early summer 1984. Defendant maintains that Wyer made only two trips, one in August 1984 and the other in September 1985. Second, Bartuch’s deposition testimony stated that Fortier asked Wyer to be his agent and representative and Wyer agreed. By way of a sworn affidavit, Fortier denied ever creating any agency relationship between himself and Wyer. Finally, Bartuch’s deposition and affidavit stated that Fortier authorized the television commercial advertising his lodge on Wyer’s show. Fortier’s affidavit stated that he never authorized the commercial nor knew anything about it until after it was aired. Whether Wyer made a total of two or three trips is not relevant to the resolution of this appeal; however, since plaintiffs forcefully urge agency and ratification before this court, we will address those issues in due course.

I. THE BURDEN OF PROOF

In Kutner v. DeMassa (1981), 96 Ill. App. 3d 243, 247-48, 421 N.E.2d 231, 234-35, the appellate court set forth the relative burdens of the parties in a jurisdictional dispute as follows:

“The burden of establishing personal jurisdiction rests with the party asserting the existence of jurisdiction. [Citations.] The essential inquiry on this appeal is whether plaintiff has met his burden of establishing that defendant submitted himself to the jurisdiction of the courts of Illinois.
A party asserting jurisdiction meets its burden by making a prima facie showing that jurisdiction is conferred by the long-arm statute. [Citations.] In considering a challenge to its personal jurisdiction, a court may receive and weigh affidavits, and such conflicts as do exist in the affidavits and pleadings must be resolved in plaintiff’s favor for purposes of determining whether a prima facie case for in personam jurisdiction has been established. [Citations.] However, where well-alleged facts within an affidavit are not contradicted by counteraffidavit, they must be taken as true notwithstanding the existence of contrary averments in the adverse party’s pleadings. [Citation.] If a defendant’s affidavit contesting jurisdiction is not refuted by a counteraffidavit filed by the plaintiff, the facts alleged in the defendant’s affidavit are accepted as true.”

Kutner is the seminal decision in a long line of Illinois cases requiring the party asserting jurisdiction to state only a prima facie case in order to prevail. See Wiles v. Morita Iron Works Co. (1987), 152 Ill. App. 3d 782, 504 N.E.2d 942, rev’d on other grounds (1988), 125 Ill. 2d 144, 530 N.E.2d 1382; Gordon v. Tow (1986), 148 Ill. App. 3d 275, 498 N.E.2d 718; Mandalay Associates, Ltd. v. Hoffman (1986), 141 Ill. App. 3d 891, 491 N.E.2d 39; Professional Group Travel, Ltd. v. Professional Seminar Consultants, Inc. (1985), 136 Ill. App. 3d 1084, 483 N.E.2d 1291; Financial Management Services, Inc. v. Sibilsky & Sibilsky, Inc. (1985), 130 Ill. App. 3d 826, 474 N.E.2d 1297; 3 R. Michael, Illinois Practice §6.2, at 61 & n.14 (1989) (hereinafter 3 R. Michael).

As Professor Michael points out, Kutner cites only Federal precedent for the proposition that any factual conflicts in the pleadings and affidavits must be resolved in the plaintiff’s favor. (See Met-L-Wood Corp. v. Lifetime Pools, Inc. (N.D. Ill. 1979), 475 F. Supp. 149, 151; Wessel Co. v. Yoffee & Beitman Management Corp. (N.D. Ill. 1978), 457 F. Supp. 939, 940. Cf Doolin v. K-S Telegage Co. (1979), 75 Ill. App. 3d 25, 29, 393 N.E.2d 556, 559 (“defendants’ affidavit will be determinative of the motion only if it negates the facts upon which the plaintiff bases jurisdiction because otherwise, the defendant has not effectively controverted plaintiff’s prima facie showing that the defendant has submitted to the jurisdiction of Illinois”).) The cases following Kutner cite Federal precedent and each other. According to Professor Michael, “[t]he federal cases, however, are clearly inapplicable because of a difference in federal procedure.” (3 R. Michael, §6.2, at 61.) Whereas in the Federal sector the issue of personal jurisdiction is addressed preliminarily before trial, then fully litigated on the merits during trial (see O’Hare International Bank v. Hampton (7th Cir. 1971), 437 F.2d 1173, 1177 n.2), in Illinois, the special appearance (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 301) is a defendant’s “sole opportunity to defeat the jurisdiction of the court.” (3 R. Michael, §6.2 at 61.) We agree with Professor Michael’s observation:

“To 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.” (3 R. Michael, §6.2 at 61.)

We hold, therefore, that the party asserting in personam jurisdiction has the burden to establish such jurisdiction where it is challenged (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 489 N.E.2d 1360) by a preponderance of the evidence. Accordingly, a reviewing court may not disturb the trial court’s findings unless they are against the manifest weight of the evidence.

II. DEFENDANT’S AMENABILITY TO SUIT IN ILLINOIS

In its motion to dismiss, defendant contested jurisdiction only on the ground that it was not “doing business” in Illinois and was therefore not amenable to the jurisdiction of our courts pursuant to section 2 — 204 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 204); however, further filings and arguments of the parties before the trial court also addressed the issue of whether defendant became subject to Illinois’ jurisdiction by “transacting business” in the State, pursuant to the Illinois “long-arm statute,” codified in sections 2 — 208 and 2 — 209 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 208, 2 — 209). Thus we will consider both bases of in personam jurisdiction in determining whether the trial court properly dismissed plaintiffs’ complaints.

In Chandler Leasing Co. v. Trus Joist Corp. (1980), 90 Ill. App. 3d 875, 878, 414 N.E.2d 15, the court explained the difference between the two bases of jurisdiction as follows:

“ ‘The distinction between the “present and doing business theory” and the “transaction of business” theory is that under the former a corporation that engages in a continuous and systematic course of business in the State becomes subject to the State’s jurisdiction even though the subject lawsuit may have no relationship to the business that the corporation does within the State. Under the latter theory, if the corporation transacts any business within the State and a cause of action arises from that transaction then the State has jurisdiction.’ ” 90 Ill. App. 3d at 878, quoting Braband v. Beech Aircraft Corp. (1977), 51 Ill. App. 3d 296, 298, 367 N.E.2d 118, 120, aff’d (1978), 72 Ill. 2d 548, 382 N.E.2d 252, cert, denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857.

A

Plaintiffs maintain that Illinois has in personam jurisdiction over Fortier, Inc., under the “doing business” doctrine, because defendant was both present and doing business in Illinois through Wyer and Wyco.

There is no comprehensive test for determining whether an alien corporation is “doing business” in the forum State. (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847.) The term means generally that “the corporation is conducting business in Illinois ‘of such a character and extent as to warrant the inference that the corporation has subjected itself to the jurisdiction and law of the district in which it is served.’ ” (Cook, 87 Ill. 2d at 201, 429 N.E.2d at 852, quoting Pembleton v. Illinois Commercial Men’s Association (1919), 289 Ill. 99, 104.) This standard requires that the corporation be engaged in a “regularity of activity” amounting to more than “isolated or sporadic” operations. (Cook, 87 v. 2d at 202, 429 N.E.2d at 853.) In the words of Chief Judge Cardozo (he was then sitting in the New York Court of Appeals), “doing business” for jurisdictional purposes means carrying on business activity within a State “ ‘not occasionally or casually, but with a fair measure of permanence and continuity.’ ” (Cook, 87 Ill. 2d at 202-03, 429 N.E .2d at 853, quoting Tauza v. Susquehanna Coal Co. (1917), 220 N.Y. 259, 267, 115 N.E. 915, 917.) Mere solicitation by employees whose only authority is to solicit business in Illinois is not enough; although, logically, this rule does not apply where the defendant’s activity is something more than that. (Cook, 87 Ill. 2d at 201-02, 429 N.E.2d at 852-53 (and cases cited therein).) As characterized by this court, the doing business standard is “quite high.” Natural Gas Pipeline Co. v. Mobil Rocky Mountain, Inc. (1987), 155 Ill. App. 3d 841, 843, 508 N.E.2d 211, 212.

Defendant’s activity in Illinois was far from regular, continuous or fairly permanent. At most, Fortier, Inc., engaged in the solicitation of business in the State by permitting Wyer to engage hunters for its caribou hunting trip. Wyer solicited the business of the prospective hunters by promoting the trip on his television show and distributing promotional literature which described Wedge Hills Lodge and listed tour prices. Once the Illinois hunters agreed to go on the hunting trip, Wyer collected their fees, paid Fortier his portion through a bank in London, Ontario, made round-trip travel arrangements for the Chicago-Schefferville leg of the trip and called a meeting in Illinois to brief the hunters on the mechanics or the practical aspects of the excursion. Apart from Wyer’s activities, however, For-tier’s only connection to Illinois was a handful of mailings of promotional literature to Illinois residents interested in Wedge Hills Lodge, a letter accepting the reservations of an Illinois resident travelling to the lodge and advertisements in three national sporting magazines available in Illinois.

Plaintiffs claim that the “mere solicitation” rule should not apply in this case, because Wyer did more than merely solicit the Illinois residents’ patronage by actually booking their trips, making travel arrangements to and from Schefferville, conducting an orientation meeting and acting as their “tour guide” on the September 25 trip. We find it difficult to attribute these activities to defendant, however, because none of them was contemplated by Wyer and Fortier when they discussed the details of the September hunting trips at the lodge. Their agreement was that Wyer would get a 15% commission for each hunter he brought to the lodge, subject to Fortier’s approval. Fortier did not concern himself with the manner in which Wyer would earn his commission. Wyer, in turn, capitalized on the arrangement by charging each hunter $2,100 American and remitting to Fortier only the fee of $2,000 Canadian, minus his 15% commission. Significantly, Fortier required Wyer to pay for his own trip, in spite of Wyer’s offer to go gratis as a “guide.”

Defendant draws our attention to Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847, in which the supreme court found that a company was not doing business in Illinois by exhibiting its wares at three trade shows and conducting an Illinois interview of a prospective employee selected by the plaintiff employment agency, whose offices were in Chicago. According to the court, the defendant did not conduct business in Illinois with sufficient “regularity” to indicate either consent or constructive presence. The court also held that where a corporation is not found to be doing business in this State, even personal service upon a visiting corporate officer is not sufficient to confer jurisdiction.

The activity of Fortier, Inc., in Illinois can hardly be viewed as “regular” or “systematic.” Defendant’s relationship with Wyer focused on soliciting hunters for only two hunting trips, both in September 1985, including the one which ended in the plane crash in Schefferville. Moreover, defendant’s independent Illinois activities were no more than casual and sporadic contacts with Illinois residents, unlike those in Aigner v. Bell Helicopters, Inc. (N.D. Ill. 1980), 86 F.R.D. 532, 538, where the facts showed defendant had engaged in “rather extensive advertising and solicitation efforts in this forum” over several years. Plaintiffs’ contention that Wyer and Fortier contemplated an expanded future business relationship is irrelevant.

Defendant also advances the case of Radosta v. Devil’s Head Ski Lodge (1988), 172 Ill. App. 3d 289, 526 N.E.2d 561, which, on facts very similar to ours, found that the defendant corporation was not “doing business” in Illinois. Radosta concerned an Illinois resident who had sustained an injury while participating in a ski race at the Devil’s Head Ski Lodge in Wisconsin. The race was sponsored by World Wide Ski Corporation, headquartered in Colorado, and was hosted by Devil’s Head, the operator of the lodge, whose principal place of business was in Wisconsin. Neither corporation was registered in Illinois, where the plaintiff filed suit. Service was obtained on World Wide in Colorado and on Devil’s Head in Wisconsin and Rosemont, Illinois, where its vice-president was attending a ski show.

Radosta claimed that Devil’s Head was doing business in Illinois based on the following five contacts: (1) Devil’s Head advertised in Illinois; (2) Devil’s Head maintained an Illinois telephone number; (3) Devil’s Head sold its lodging and lift tickets through a Chicago business; (4) Devil’s Head contracted with an Illinois business for sign advertising; and (5) Devil’s Head sponsored a booth in Chicago’s annual ski show.

We agree with defendant that its activities in Illinois were both quantitatively and qualitatively less impressive for our purposes than those of Devil’s Head. Based on Cook, Radosta and other decisions declining to find jurisdiction over an alien corporation on the basis of its “doing business” in this State (see, e.g., Berks v. Rib Mountain Ski Corp. (N.D. Ill. 1983), 571 F. Supp. 500; Natural Gas Pipeline Co., 155 Ill. App. 3d 841, 508 N.E.2d 211; Loggans v. Jewish Community Center (1983), 113 Ill. App. 3d 549, 447 N.E.2d 919; Chandler Leasing Co., 90 Ill. App. 3d 875, 414 N.E.2d 15), we hold that the evidence in the present case fails to show that defendant’s commercial activities in Illinois were sufficiently substantial to sustain in personam jurisdiction under the “doing business” doctrine.

Plaintiffs also contend that Wyer and Wyco were defendant’s “agents” in Illinois, thus making Fortier, Inc., amenable to process in this State under section 2 — 204 of the Code of Civil Procedure. That section implements jurisdiction based on the actual or constructive presence of a corporation in Illinois and provides in pertinent part as follows:

“A private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of said corporation found anywhere in the State.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 204.)

In the present case, Wyer and Wyco were neither registered agents nor officers of Fortier, Inc. Thus, unless they were defendant’s “agents,” jurisdiction premised on defendant’s doing of business in Illinois through Wyer and Wyco is improper.

Plaintiffs adduce various facts established through the deposition testimony and affidavits of Bartuch and Mrs. Wyer in an attempt to show that an agency relationship indeed existed between Fortier and Fortier, Inc., as Canadian principals and Wyer and Wyco as their Illinois agents. For example, plaintiffs forcefully claim that during the videotaping trip to Wedge Hills Lodge, Bartuch participated in a conversation with Fortier and Wyer in which Fortier asked Wyer through a translator whether Wyer would be his “agent” or “representative,” and Wyer agreed. On defendant’s motion to strike Bartuch’s affidavit, however, the circuit court ruled such evidence to be conclusional and hearsay. In his second affidavit, Fortier stated that he never made such an offer. Plaintiffs further argue that by keeping silent in response to his knowledge that Wyer was engaging hunters for the trip to Wedge Hills Lodge and that Wyer was airing commercials and other footage from the lodge on his television show, in which Wyer stated that he and Fortier had “joined forces,” Fortier ratified Wyer’s actions. Again, Fortier denied any knowledge of commercials advertising the excursion, creating a factual conflict on this issue.

Although in its memorandum opinion the trial court made no express finding with respect to the existence of such an agency relationship, its determination that there was no relationship can reasonably be inferred from the court’s decision to quash service of process in Illinois on Wyco and Mrs. Wyer, as administrator of Wyer’s estate.

It is universally held that the existence of an agency relationship is a question of fact; accordingly, in the absence of an explicit finding in that regard by the trial court, it is not our function to resolve the issue on appeal. More important, in view of our holding that defendant’s commercial activities in Illinois were not substantial enough to constitute “doing business,” a determination of the question of whether Wyer and Wyco were indeed defendant’s agents becomes unnecessary.

Finally, plaintiffs assert that the trial court erroneously failed to consider the fact that Illinois is the only forum in which they can sue. (See Aigner, 86 F.R.D. at 538-39.) They claim that the plaintiffs’ decedents were all Illinois residents, as are their heirs, and that no other State would conceivably have jurisdiction over defendant. Furthermore, they maintain that filing suit in Quebec, Canada, is not a viable alternative, because there “they would have to make large deposits to cover defense fees and expenses and could not employ lawyers on a contingent basis. In addition, they would thereby accede to the jurisdiction of the Canadian courts with respect to the declaratory judgment suit filed by Fortier, Inc.’s British insurer *** in which this insurer seeks to avoid coverage.” In Aigner, the district court found that requiring the defendant alien corporation, which had done “more than occasional business in this country” and had “voluntarily, intentionally and successfully come into the United States to do business with this country’s residents,” to defend itself in the Northern District of Illinois would be neither unreasonable nor “markedly unfair.” 86 F.R.D. at 538, 539.

Since we hold that Illinois has no in personam jurisdiction over Fortier, Inc., under the “doing business” doctrine, this is another issue we need not reach. See Natural Gas Pipeline Co., 155 Ill. App. 3d at 847, 508 N.E.2d at 215.

In any event, we do not deem that the inconvenience of suing in Canada does not ipso facto render Illinois the “only available forum.” Besides, the relative interests of the parties and the forum State are proper inquiries only when addressing the issue of whether requiring an alien corporation to defend itself in Illinois “would be so unfair as to constitute a denial of due process.” Aigner, 86 F.R.D. at 539.

B

Plaintiffs contend next that personal jurisdiction over Fortier, Inc., is proper under the Illinois “long-arm statute” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(a)(1)), which provides in relevant part as follows:

“(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this State.” (Emphasis added.)

In Gordon v. Tow (1986), 148 Ill. App. 3d 275, 281, 498 N.E.2d 718, 722, the appellate court ruled that defendant’s Illinois activities did not amount to the “transaction of any business” under our long-arm statute, because (1) plaintiff initiated the transaction outside Illinois, (2) the limited partnership agreement was entered into outside Illinois, and (3) the contract terms were to be performed outside of Illinois. Considering these criteria, the court concluded that despite many telephone calls and a “continuous pattern of correspondence” between the parties relating to plaintiff Gordon’s purchase of a limited partnership from Tow, a Rhode Island resident, Tow had not “transacted business” in Illinois under the statute.

In the present case, Wyer initiated discussion of the hunting trip with defendant outside Illinois. It was Wyer who travelled to For-tier’s place of business in Quebec and made inquiries about lodging, prices and available dates for a hunting excursion to Wedge Hills Lodge. Wyer made such inquiries during his tours of other hunting and fishing facilities on a regular basis with the hope of entering into an agreement for a commission in exchange for booking hunting and fishing parties.

Fortier’s agreement with Wyer to provide Wyer and his clients with a week of caribou hunting at Wedge Hills Lodge was entered into outside Illinois; the entire agreement was negotiated at the lodge in Quebec, and, as noted earlier, no part of it was ever reduced to writing. The correspondence between Wyer and Fortier merely indicates that Wyer had agreed to provide Fortier with a list of hunters for a hunting expedition on a date picked by Fortier and later to pay for the confirmed parties.

The agreement was performed exclusively outside Illinois. Wyer paid Fortier on behalf of each party only for that portion of the hunting package which was to take place in Quebec. The payment checks were in Canadian dollars, drawn on Wyer’s account in a London, Ontario, bank. Wyer arranged transportation for his clients to Schefferville, Quebec, at which point Fortier took over. Fortier’s promotional literature which Wyer distributed in Illinois states clearly that transportation to Schefferville is not included in the fee.

Finally, as in Gordon, the telephone calls and correspondence between Wyer and Fortier are insufficient to establish the transaction of business within this State, especially in view of the fact that most of the communication was either initiated by Wyer or in response to Wyer’s inquiries. The Gordon court also held that “[o]nly the acts of the defendant can be considered in determining whether business was transacted in Illinois. [Citations.]” (148 Ill. App. 3d at 280, 498 N.E.2d at 722.) The only relevant act of Fortier was his agreement to provide a week of caribou hunting for Wyer’s clients and to pay Wyer á commission for each hunter he brought to the lodge. This agreement did not require that the clients be Illinois residents. Consequently, it cannot be said that defendant Fortier, Inc., “sufficiently transacted business in Illinois so as to avail [itself] of the benefits of Illinois law.” 148 Ill. App. 3d at 280, 498 N.E.2d at 722.

The second part of the analysis under the long-arm statute requires plaintiffs to show that the cause of action “arose from” defendant’s jurisdictional acts. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 209; Heller Financial, Inc. v. Conagra, Inc. (1988), 166 Ill. App. 3d 1, 4, 520 N.E.2d 922, 924.) Illinois courts are especially disinclined to assert jurisdiction over nonresident defendants for torts occurring outside the State, where the tort did not arise from defendant’s in-forum contacts which began a chain of events leading to plaintiff’s out-of-forum visit and subsequent injury. (Loggans v. Jewish Community Center (1983), 113 Ill. App. 3d 549, 447 N.E.2d 919.) Although our courts have often used the phrase “lies in the wake” of the transaction to help define the term “arising from” as it is used in the long-arm statute (see, e.g., Loggans, 113 Ill. App. 3d at 557, 447 N.E.2d at 925), we do not interpret such language as creating a pure “but for” test of causality. (Cf. Shute v. Carnival Cruise Lines (9th Cir. 1990), 897 F.2d 377, 383-86 (holding that plaintiff’s claim of negligence against a Florida corporation predicated on her slip and fall on a cruise ship operated by the company off the coast of California “arose out of” the alien corporation’s solicitation of business in the State of Washington).) In the present case, plaintiffs’ complaints charge that Fortier, Inc., is liable for the wrongM death of plaintiffs’ decedents by reason of its negligent operation and maintenance of the aircraft. Had there been any proximate connection between the alleged tort and the State of Illinois — for example, had defendant hired the pilot from Illinois or engaged an Illinois company to maintain the aircraft — plaintiffs’ arguments would offer some persuasion. Plaintiffs’ inclusion in the complaints of the allegation that Wyer and Wyco were negligent in their planning and handling of the fatal hunting trip is a woefully inadequate attempt at creating personal jurisdiction where none otherwise exists, for nothing in the record even remotely suggests that either Wyer or Wyco engaged in any negligent conduct causing the crash.

A “close relationship” must exist between the cause of action and the jurisdictional acts of a nonresident defendant. (Volkswagen Insurance Co. v. Whittington (1978), 58 Ill. App. 3d 621, 374 N.E.2d 954.) The “jurisdictional acts” of Fortier, Inc., consisted of allowing Wyer to book clients for two caribou hunting trips to Fortier’s lodge in exchange for a 15% commission. As previously noted, the agreement did not contemplate that the clients must be from Illinois. In fact, 3 of the 12 hunters on the fatal trip were not Illinois residents. In light of the record, we do not perceive that there exists a sufficiently close relationship between these acts and the airplane crash on September 25, 1985, to warrant subjecting defendant to the jurisdiction of Illinois courts.

Defendant maintains that the contacts of Fortier, Inc., with Illinois were insufficient to meet even the constitutional limits of in personam, jurisdiction set forth in Helicopteros Nacionales de Colombia, S.A. v. Hall (1984), 466 U.S. 408, 80 L. Ed. 2d 404, 104 S. Ct. 1868, and Asahi Metal Industry Co. v. Superior Court (1987), 480 U.S. 102, 94 L. Ed. 2d 92, 107 S. Ct. 1026. Since we hold that Illinois has no personal jurisdiction over defendant under our long-arm statute, we need not also decide whether plaintiffs’ assertion of jurisdiction is consistent with due process. R. W. Sawant & Co. v. Allied Programs, Corp. (1986), 111 Ill. 2d 304, 498 N.E.2d 1360; Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847; Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 427 N.E.2d 1203.

III. SERVICE OF PROCESS

Plaintiffs also contend that the trial judge improperly granted defendant’s motion to quash service of process in view of the fact that personal service had been obtained on Fortier in Schefferville, Quebec. The record reflects that Wyco and Mrs. Wyer, as the administrator of Wyer’s estate, were served with process in Warrenville, Illinois, in their capacity as agents of Fortier, Inc. Also, a corporate officer of Fortier, Inc., was personally served with summons in Quebec City, Quebec. Defendant then filed its motion to quash service of process and to dismiss plaintiffs’ complaints for lack of personal jurisdiction. After this motion was filed, plaintiff Kearns obtained personal service upon Fortier, as manager and owner of the company, in Schefferville, Quebec, and upon the company’s trustee in bankruptcy in Quebec City, Quebec.

Defendant did not amend its motion to include this latter method of service upon Fortier. In fact, the parties agree that one of defendant’s attorneys sent a letter to one of plaintiffs’ attorneys indicating that at the time of the hearing defendant would withdraw the notice issue from its motion in light of the fact that personal service had been effected upon Fortier. At the hearing on the motion to quash and dismiss, however, defense counsel remained silent on the issue of waiver; consequently, it was plaintiffs’ counsel who advised the trial judge that Fortier had been personally served and about the existence and contents of the letter. Defense counsel explained that the attorney who allegedly drafted the letter was no longer with the firm. Despite acknowledging the personal service upon Fortier, the trial judge granted defendant’s motion to quash service of process.

During the hearing to vacate the circuit court’s order to quash and dismiss, defendant expressly waived the service issue; however, the court refused to change its decision. Defendant stands on its waiver on appeal.

Plaintiffs now argue that (1) the court improperly granted defendant’s motion to quash, because service had been perfected during its pendency, and (2) by granting the motion, the court lost subject matter jurisdiction over the litigation and therefore improperly reached the issue of in personam jurisdiction (see Giralamo v. O’Connell (1986), 145 Ill. App. 3d 527, 495 N.E.2d 1180 (absent proper service, any subsequent orders of court against defendant are void); LaMotte v. Constantine (1980), 92 Ill. App. 3d 216, 416 N.E.2d 23 (court acquires jurisdiction only after proper service of summons)).

In its memorandum opinion and order, the circuit court addressed first the issue of whether it had a basis for asserting personal jurisdiction over defendant, and only then addressed the question of whether defendant had been properly notified of the pendency of the action against him. This is the proper sequence for dealing with issues of in personam jurisdiction. (See, e.g., International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154; see also Ill. Ann. Stat. 1983, ch. 110, par. 2 — 209 Historical and Practice Notes at 215 (Smith-Hurd 1983).) Accordingly, once a court decides that it has no basis for asserting personal jurisdiction over a defendant, the question of whether service of process was properly effected becomes moot. Thus, since we affirm the circuit court’s order dismissing the cause of action for lack of jurisdiction over defendant’s person, we do not reach the issue of whether defendant was properly served.

We also hold that because Fortier was personally served in Canada only after defendant filed its motion to quash, this method of service was not affected by the court’s order granting the motion. Accordingly, at least with respect to plaintiffs’ attempt to show proper long-arm jurisdiction over defendant, the circuit court never found notice to be inadequate.

Affirmed.

DiVITO, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH PRESTON, JR., Defendant-Appellant.
    Third District
    No. 3—89—0290
    Opinion filed November 13, 1990.

      Braud/Warner, Ltd., of Rock Island (Michael L. Wassell, of counsel), for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

Defendant, pursuant to Supreme Court Rule 605(a) (107 Ill. 2d R. 605(a)), appeals from a final judgment and sentencing order entered May 5, 1989, wherein the trial court found defendant guilty of two counts of reckless homicide and sentenced him to a term of five years in the Illinois Department of Corrections. Within defendant’s appeal, he also objects to certain orders denying his motion to suppress evidence and his confession and motion to quash arrest. The conviction herein was based on stipulated facts presented to the court without the aid of a jury. No issues are raised on the pleadings.

The stipulated statement of facts presented to the court stated the following:

“Rock Island County Deputy Steve Dean would testify that on June 11, 1988, at 2:34 A.M., he arrived at the scene of a two-car collision. The collision occurred in Rock Island County, Illinois. Deputy Dean observed a 1982 Chevrolet pickup truck which the defendant had been driving lying on its side on Route 92. A 1983 Ford Escort was located north of Route 92. In the Ford Escort were Shirley Jean Skinner and Edith Alberta Call, who were pronounced dead at the scene of the collision.
The defendant informed Officer Dean that he had been eastbound on Route 92 and the Ford Escort crossed the center line and struck him. Officer Dean detected a strong odor of alcohol on defendant’s breath[;] however, defendant wás coherent. No field sobriety tests were performed nor did Deputy Dean observe any physical trait indicating intoxication. Preliminary investigations at the scene indicated that defendant was eastbound on Route 92, and the Ford Escort was westbound. The gouge marks in the pavement, the damage of the vehicles, and the location of the vehicles, suggested that contrary to the defendant’s statement, the point of impact was in the victim’s westbound lane. Deputy Dean requested and received the defendant’s driver’s license and wallet at the scene and because of a head injury the defendant was transported by ambulance to Muscatine General Hospital, Muscatine, Iowa. Deputy Dean would testify that if the defendant was not transported by ambulance from the scene, the defendant would not have been free to leave the area.
At the hospital, at 3:53 A.M., Deputy Dean advised the defendant he was under arrest for driving under the influence of alcohol, advised the defendant of his constitutional rights and read to the defendant the [warning to motorist]. Deputy Dean requested that the defendant submit to a blood test and the defendant voluntarily consented to the blood test. Deputy Dean observed Lab Technician Alexa Wojtechi draw blood from the defendant. After Wojtechi drew the blood, Deputy Dean observed her seal the sample in a styrofoam container. Wojtechi then handed the sealed sample to Deputy Dean. Deputy Dean subsequently transported the blood sample to the Rock Island County Sheriff’s Department and placed it in an evidence locker.
Geneva Anderson would testify as a witness for the people. She would testify that she observed the victims in the 11th Street Point Tavern shortly before the collision. The women often socialized in the establishment. Neither woman ever drank alcohol, and neither woman , drank alcohol on the night in question. When the women left at their regular time of 1:30 A.M., they were not fatigued.
Lorri Vargus would testify as the next witness for the people. She would testify that she was working as a bartender at the Mississippi Brewing Company on June 10, 1988, between 6:30 P.M and 12:30 A.M. She would further testify that she was familiar with the defendant since he had frequented the establishment on previous occasions. The defendant usually drank a lot. When she last saw him at approximately 10:30 P.M. on June 10, 1988, the defendant was intoxicated.
Doctor David Gierlus would testify that he was defendant’s attending physician at Muscatine General Hospital on the morning in question. Doctor Gierlus detected an odor of alcohol on defendant’s breath. Doctor Gierlus would also testify that none of the medical treatment administered to the defendant would have affected the accuracy of the blood-alcohol test.
Melody McMillan would also testify that she was defendant’s attending nurse at Muscatine General Hospital on the morning in question and that she detected the smell of alcohol on defendant’s breath.
Alexa Wojtechi would testify that she is a qualified laboratory technician and that she drew the defendant’s blood following the procedures outlined in Chapter 951/2 on June 11, 1988, 4:20 A.M. at Muscatine General Hospital. She would further testify that after drawing the blood she sealed the sample in a styrofoam package and gave it to Deputy Dean of the Rock Island County Sheriff’s Department.
Rock Island County Investigator Sherman Powell would testify that on June 13, 1988, he removed the defendant’s sealed blood sample from an evidence locker at the Rock Island County Sheriff’s Department and transported it to the Moline Public Hospital where he handed it to Stella Entsminter.
Stella Entsminter would further testify that on June 13, 1988, she received the defendant’s sealed blood sample from Investigator Powell. She would further testify that she is a trained lab technician qualified as an expert in blood analysis. On June 13, 1988, she tested the defendant’s blood sample and blood alcohol content was .219.
In addition to the testimony offered to establish the defendant’s intoxication, the People would also present evidence to establish that contrary to the defendant’s claim that the victims’ vehicle crossed the center line, the defendant’s vehicle actually did. Deputy Andress would testify that she took preliminary measurements at the scene of the collision and recorded the measurements. She would also testify that she observed the vehicles involved in the collision and the victims of the collisions who suffered massive head and chest injuries. She would further testify that on June 15, 1988, she relayed all the information she had gathered to Deputy VanWolvelaere. She would also testify that together with Deputy VanWolvelaere she made further measurements and examinations of the defendant’s and victims’ vehicles.
Deputy VanWolvelaere would testify that on June 15, 1988, he assisted Deputy Andress in the investigation of the instant collision. He would further testify that he and Deputy Andress measured and examined the defendant’s vehicle and the victims’ vehicle. Deputy VanWolvelaere also photographed the vehicles. On June 16, 1988, Deputy VanWolvelaere returned to the scene of the collision and attempted to find physical evidence to substantiate the defendant’s prior statement. No such evidence could be found. Deputy VanWolvelaere also re-examined the vehicles involved in the collision. Based on his training and observations Deputy VanWolvelaere would further testify that in his opinion the collision occurred in the westbound lane when defendant’s vehicle crossed the centerline and struck the victims’ vehicle.
Additionally, Illinois State Trooper VanDaele would testify that he is an expert in accident reconstruction. He would further testify that after examining all the physical evidence including the measurements and photographs taken by Deputies Andress and VanWolvelaere he determined that the point of impact was in the victims’ westbound lane. He further determined that in his expert opinion the victims’ automobile never left its lane before or during the collision. In his expert opinion the defendant’s truck crossed the centerline and entered the victims’ lane causing the collision.
Finally, Rock Island County Coroner Richard Verbeck would testify that Edith A. Call and Shirley J. Skinner were pronounced dead at the scene following the two-vehicle collision in Rock Island County, Illinois. The primary cause of death for each woman was massive head, chest and internal injuries. Coroner Verbeck would further testify that the lab reports indicated that neither victim had any alcohol or drugs present in her blood.”

On October 14, 1988, defendant filed a motion to suppress evidence and motion to suppress confession and motion to quash arrest. After hearing testimony and arguments on November 17, 1988, the trial court, by order dated December 22, 1988, denied defendant’s motions. Subsequently, the above-mentioned statement of facts was submitted to the court. Defendant again moved to suppress evidence and confession, which was denied. The trial court found defendant guilty based on the stipulation of facts.

Defendant first asserts the trial court erred in denying the motions to suppress evidence, suppress confession and quash the arrest. To this point defendant states the police officer had no probable cause to arrest defendant for driving under the influence. Probable cause exists when “the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.” (People v. Goodman (1980), 173 Ill. App. 3d 559, 562, 527 N.E.2d 1055.) In Goodman, the court determined that probable cause existed for an arrest of driving under influence where two witnesses observed the defendant commit a hit- and-run offense, the defendant had a strong odor of alcohol on his breath, had trouble standing and was dazed, although the police officer could not determine whether the defendant was dazed from the alcohol or the accident. (Goodman, 173 Ill. App. 3d 559, 527 N.E.2d 1055.) Probable cause for the arrest existed in this case because the officer came upon a serious traffic accident in the early morning hours, was told by defendant that the other vehicle crossed the center line and hit his vehicle when the object evidence appeared otherwise, and there was an odor of alcohol on defendant’s breath which was noticed by the officer as well as other emergency personnel.

Defendant further states that the arrest was illegal because it occurred in Iowa. At the hearing on defendant’s motions, the officer testified that defendant was not physically arrested until at the hospital in Muscatine, Iowa. Therefore, under Iowa law, defendant argues the officer had no authority to arrest defendant, since he was not being arrested for a felony nor was the officer in hot pursuit of defendant. However, at the scene the officer did take defendant’s wallet and driver’s license and testified that if the defendant had tried to leave on his own, he would not have been free to go. Defendant asserts that merely seizing a person’s wallet and driver’s license without any other type of restraint cannot be considered an arrest. An arrest occurs when the officer intends to arrest, the defendant believes he is under arrest and the defendant is in actual or constructive custody. (People v. Clark (1956), 9 Ill. 2d 400, 137 N.E.2d 820.) No formal declaration of arrest is necessary for an arrest to occur. (People v. Brown (1980), 81 Ill. App. 3d 271, 401 N.E.2d 310.) In Goodman, the court determined a defendant was actually arrested at the scene even though the traffic tickets were not issued until later at a hospital. The court’s basis for this was that the defendant would not have been free to go had he not been injured. Moreover, the police officer took the defendant’s driver’s license and locked him into the squad car for his personal safety. (Goodman, 173 Ill. App. 3d 559, 527 N.E.2d 1055.) Defendant herein distinguishes Goodman solely on the basis that in Goodman the defendant was physically restrained. We do not believe that distinction has merit. In Goodman the evidence showed the defendant to be disoriented and in need of restraint for his personal safety. Such restraint of defendant in this case did not appear necessary. The key factor in both Goodman and this case is that, but for the injuries suffered which required transport to a hospital, neither respective defendant would have been free to go under the circumstances presented. We have no reason to disbelieve the officer’s testimony in this case that defendant would not have been free to go. Defendant was constructively in custody at the scene.

Having decided the arrest occurred in Illinois, we must decide whether the officer lawfully crossed State lines to conclude the arrest and provide the Illinois implied consent warning to motorists for purposes of obtaining a blood test to check defendant’s blood-alcohol level. There is no dispute that the seizure of blood pursuant to the implied consent law mandates that lawful arrest precede the request for the blood test. (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 501; People v. Ellerbusch (1983), 118 Ill. App. 3d 500, 454 N.E.2d 1166.) Defendant’s argument is premised solely upon the illegality of the arrest. Having already determined that the arrest was legal, we find no merit to defendant’s argument. Moreover, since we consider the arrest to have occurred in Illinois, we believe the officer correctly followed Illinois implied consent law procedure even though the warnings were given and the blood was drawn in Iowa. The transport of defendant across State lines was merely fortuitous and should not work to clear defendant of the charges.

Defendant similarly argues that any statements made by defendant after the illegal arrest are inadmissible as “fruits of a poisonous tree.” Again, however, since we have determined the arrest to be legal, we again find defendant’s argument to be without merit.

Secondly, defendant argues that the stipulated evidence presented at trial was insufficient to prove defendant guilty beyond a reasonable doubt. Basically defendant argues that the evidence failed to show beyond a reasonable doubt the cause of death of the victims in the other car. We disagree. The coroner testified that both victims were pronounced dead at the scene from massive head, chest and internal injuries. This evidence, coupled with defendant’s statement that an accident occurred and corroborated by reconstruction evidence, is sufficient to find that the accident was the cause of death of the two victims. Defendant has made no assertion that the deaths could be attributable to any other cause. It is not necessary to have specific medical testimony pursuant to an autopsy when other evidence is sufficient to prove causation. There simply is no other reasonable explanation as to how these two victims died. When the facts adduced show by common knowledge and experience a direct association between the accident and the deaths, no technical explanation of death is necessary. (People v. Tostado (1981), 92 Ill. App. 3d 837, 416 N.E.2d 353.) We therefore find defendant’s argument without merit.

For all of the foregoing reasons, the decision of the trial court is affirmed and the cause is remanded to the trial court for the issuance of the mittimus.

Affirmed and remanded.

HEIPLE, P.J., and STOUDER, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY OWENS, Defendant-Appellant.
    Third District
    No. 3—89—0632
    Opinion filed November 14, 1990.

      Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Michael C. Kolinski, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

A jury convicted the defendant, Anthony Owens, of criminal trespass to a motor vehicle and unlawful possession of a stolen vehicle (Ill. Rev. Stat. 1989, ch. 38, par. 21 — 2; ch. 95½, par. 4 — 103(a)(1)). The trial court subsequently sentenced him to a term of 10 years’ imprisonment on the unlawful possession conviction. The court entered a suspended sentence on the criminal trespass conviction. He appeals.

The record reveals that on May 26, 1989, a 1979 Buick Regal was stolen from Michael and Jane Hall’s garage. At the defendant’s trial, Michael Hall testified that the Buick was in the garage early that morning when he returned home from driving his children to school. The garage door was open at the time. Shortly thereafter, his wife went out to the garage and found that the car was gone. Michael subsequently notified the Bolingbrook police department that the car had been stolen.

Lieutenant Thomas Wolfe of the Bolingbrook police department testified that while he was on patrol that afternoon, he observed a Buick Regal matching the description of the Halls’ car parked in a store parking lot. He watched the car and eventually saw the defendant drive it out of the parking lot. Wolfe followed. After traveling a short distance, the defendant drove the car back to the parking lot and began steadily accelerating. Lieutenant Wolfe testified that he then activated his emergency lights and siren, and a chase ensued. He stated that when the Buick landed in a drainage ditch, the defendant attempted to flee on foot but was apprehended.

The jury subsequently found the defendant guilty of criminal trespass to a motor vehicle and unlawful possession of a stolen vehicle.

At the sentencing hearing, the trial court found on the unlawful possession conviction that the Class 2 felony was raised to a Class X felony punishable by not less than 6 nor more than 30 years’ imprisonment, because the defendant had two prior felony convictions within the past 10 years. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5— 3(c)(8), 1005 — 8—1(a)(3).) In aggravation, the court noted that the defendant had failed to straighten out his life after his first felony conviction, for which he had received probation. It further noted that, even after his second conviction for unlawful possession of a stolen vehicle, the defendant had not changed his ways, as evidenced by the fact that he had committed the instant offense while on parole for that conviction. The court found no other factors in aggravation. It subsequently sentenced him to a 10-year term of imprisonment for the unlawful possession conviction. On the criminal trespass conviction, the court stated that it was “suspending” the defendant’s sentence. We note that the court could not actually “suspend” the defendant’s sentence since no sentence was ever imposed. However, it is clear from the context of the court’s statement that it was in fact refusing to enter sentence on the criminal trespass conviction.

On appeal, the defendant argues that the trial court erred in considering his two prior convictions as aggravating factors, since it had already used them to elevate the instant offense to a Class X felony.

It is well settled that a sentencing court cannot use a prior conviction to impose an extended-term sentence and also to enhance the seriousness of the offense. (People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558; People v. Meyer (1982), 110 Ill. App. 3d 673, 442 N.E.2d 957.) Once a prior conviction is used to impose an extended-term sentence, the usefulness of the prior conviction for sentencing purposes is exhausted. (Meyer, 110 Ill. App. 3d at 679, 442 N.E.2d at 961.) Similarly, a potential aggravating factor for sentencing purposes which is also a necessary element of the offense charged cannot be considered as an aggravating factor in sentencing a defendant. People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.

In the instant case, the trial court used the defendant’s two prior convictions to enhance his offense to a Class X felony. It then found that those convictions were the only aggravating factors and sentenced him to a term four years beyond the minimum Class X sentence. We conclude that the court improperly used the defendant’s prior convictions twice to doubly enhance his sentence. The defendant is therefore entitled to a new sentencing hearing.

The defendant also argues on appeal that his conviction for criminal trespass to a vehicle should be vacated since it arose out of the same act as his conviction for unlawful possession of a stolen motor vehicle.

Initially, we note that the offense of criminal trespass is committed when a person knowingly and without authority enters any part of or operates any vehicle. (Ill. Rev. Stat. 1989, ch. 38, par. 21— 2.) The offense of unlawful possession of a stolen vehicle is committed when a person not entitled to the possession of a vehicle possesses it knowing it to be stolen. Ill. Rev. Stat. 1989, ch. 95½, par. 4 — 103(a)(1).

In the instant case, the State’s theory at trial was that the defendant committed criminal trespass when he entered the Buick in the parking lot. On the unlawful possession charge, the State’s theory was that he committed the offense when he then drove the car from the parking lot. However, we find that getting in the car and driving it were part of one continuous act. Accordingly, the same act served as the basis for the two convictions. His conviction for criminal trespass must therefore be vacated. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) Moreover, we note that the trial court implicitly found that the convictions were based on the same act since it only sentenced the defendant on the unlawful possession conviction.

Accordingly, the judgment of the circuit court of Will County convicting the defendant of unlawful possession of a stolen vehicle is affirmed, but the defendant’s sentence for that offense is vacated and the cause is remanded for resentencing. The defendant’s conviction for criminal trespass to a vehicle is vacated.

Affirmed in part; vacated in part and remanded.

SCOTT and GORMAN, JJ., concur.


text:
    JUANITA EIKEY, Plaintiff-Appellant, v. MARY RAPP, Defendant-Appellee.
    Third District
    No. 3—89—0442
    Opinion filed November 9, 1990.

      Frank J. Black, of Black & Black, of Morris, for appellant.
    Esther Joy Schwartz and Mary A. Mazurk, both of Orner & Wasserman, Ltd., of Chicago, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Juanita Eikey, plaintiff, filed a negligence action against Mary Rapp, Kelly Kreis, and Scott Allen following a three-car accident on Route 52 in Troy Township, Will County, Illinois. Plaintiff appeals from a summary judgment entered in favor of defendant Mary Rapp.

According to the deposition of defendant Rapp, the accident occurred on a day when sleet was falling, and the roads were wet and icy. Although the .speed limit in the area was 50 miles per hour, defendant was driving less than the speed limit because of the poor road conditions. Defendant was traveling westerly on Route 52 in the right-hand lane of two westbound lanes. As she reached the 1-55 overpass, she realized it was even more hazardous and slowed to between 25 and 30 miles per hour. Before reaching the peak of the overpass, defendant looked in her rear view mirror and noticed the Kreis vehicle coming up behind her at a speed defendant considered too fast for conditions. Defendant then tapped her brakes in an effort to warn Kreis of her presence. Kreis’ vehicle swerved to avoid defendant’s vehicle but was unable to do so, and a collision ensued. Defendant estimated that she was traveling about 25 miles per hour at the time of impact and that Kreis was traveling faster than she was. After the impact, defendant’s vehicle was pushed 10 feet forward into a guardrail and came to rest on the right side of the road near the center of the bridge.

Kreis stated in her deposition that she first saw defendant’s vehicle just four car lengths in front of her when her own vehicle reached the top of the overpass. At that point, defendant had her brake lights on and was either slowing or was stopped. Kreis applied her brakes, and her car slid into Rapp’s car. Kreis estimated her speed prior to applying her brakes was 25 miles per hour. Following the collision, Kreis’ vehicle came to a complete stop in the right westbound lane of traffic. About four seconds later, plaintiff’s vehicle struck Kreis’ vehicle on the right side.

Plaintiff’s deposition reveals that she was traveling westbound at about 15 miles per hour when she started up the overpass. As she reached the midpoint of the overpass, the car ahead of her swerved into the left westbound lane. She then saw the Kreis vehicle stopped in her lane, but she was unable to avoid a collision because of traffic in the lane to her left. She did not see defendant’s car until after the accident.

Scott Allen stated in his deposition that he witnessed both collisions. He was also traveling westbound on the Route 52 overpass when he lost control of his car and came to a stop in the eastbound lanes of traffic facing northeast. He stated that defendant was traveling slightly below the speed limit and that the Kreis vehicle was sliding at a faster speed than defendant when it collided with that of defendant. About two seconds after the first impact, he observed plaintiff’s vehicle collide with that of Kreis.

Count II of the complaint alleged that defendant Rapp committed one or more of the following negligent acts: (1) that she failed to keep a proper lookout; (2) that she drove her car faster than was reasonable under the conditions in violation of section 11 — 601(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 601(a)); and (3) that she suddenly decreased the speed of her vehicle.

On appeal from the summary judgment entered in favor of defendant, plaintiff contends that the conflicting versions of how the accident occurred create issues of fact which preclude entry of summary judgment.

The rule for entering summary judgments was well stated in Martin v. 1727 Corp. (1983), 120 Ill. App. 3d 733, 737, 458 N.E.2d 990:

“The propriety of awarding summary judgment depends upon whether or not a bona fide issue of material fact exists between the parties to the action. If, upon examination of the pleadings and affidavits, it can be fairly said that a material dispute exists as to the facts, a motion for summary judgment should be denied. On the other hand, where the pleadings and affidavits show there is no bona fide triable issue of fact, a summary judgment should be granted. [Citation.]
Thus, while plaintiffs are not required to prove their case at the summary judgment stage, they are under a duty to present a factual basis which would arguably entitle them to judgment in their favor. [Citation.]”

In the case at bar, plaintiff has provided no factual basis in support of the allegations of the complaint. Although the eyewitnesses disagreed as to some of the details related to the two collisions, none of the witnesses stated that defendant failed to keep a proper lookout, that she was driving faster than was reasonable for the conditions, or that she suddenly decreased the speed of her vehicle. To the contrary, both defendant and Scott Allen said defendant was traveling less than the speed limit at the time of impact. Kreis stated that defendant was either moving slowly or had stopped, but this testimony does not support the allegation that defendant suddenly decreased her speed. Thus, none of the acts of negligence alleged by plaintiff are borne out by the eyewitness affidavits.

Plaintiff also argues that there was evidence that defendant violated section 11 — 1301(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 1301(a)) pertaining to stopping off the roadway without a clear view of the vehicle available for a distance of 200 feet in both directions and section 11 — 606(a) of the Code providing that a driver shall not drive too slowly so as to impede the normal and reasonable movement of traffic except when necessary for the safe operation of the vehicle.

As plaintiff points out, a violation of a traffic law constitutes prima facie evidence of negligence. (City of Kankakee v. Vreeman (1988), 177 Ill. App. 3d 835, 532 N.E.2d 1058.) However, the complaint does not allege violation of either provision cited, and negligence not pleaded cannot give rise to issues of fact that would preclude summary judgment.

On the basis of the pleadings and affidavits, we conclude that summary judgment in favor of defendant Mary Rapp was properly entered by the circuit court of Will County.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


text:
    STEVEN HASTALIS, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.
    Third District
    No. 3—90—0195
    Opinion filed November 9, 1990.

      William J. Harte and Courtney C. Nottage, both of William J. Harte, Ltd., of Chicago (Erik D. Gruber, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    James E. Priestley, of Gomien, Root & Rigazio, of Morris, and Ford & Harrison, of Atlanta, Georgia (E. Scott Smith, of counsel), for respondent Britt Airways, Inc.
   JUSTICE BARRY

delivered the opinion of the court:

Steven Hastalis, who is blind, was not allowed to board a Britt Airways flight in Peoria, Illinois, after he refused to fill out a passenger assistance form at the request of the gate attendant. Hastalis filed a charge of unlawful discrimination with the Illinois Department of Human Rights (Department), and after a fact-finding conference, the Department filed a complaint with the Illinois Human Rights Commission (Commission) alleging that Britt had violated section 5— 102(A) of the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 5 — 102(A)) in refusing service to Hastalis. The Commission dismissed the complaint on the ground that the Federal Aviation Act (49 U.S.C. app. §1305 et seq. (1988)) has preempted Hastalis’ claims, thereby depriving the Commission of jurisdiction. Hastalis has petitioned this court for review of the Commission dismissal order.

Hastalis had purchased a ticket to fly from Peoria to Chicago via Britt Airways. He was accompanied to the Peoria airport by two friends. At the ticket counter he was asked whether someone would meet him in Chicago, and when he answered in the negative, the agent on duty asked him to give the information needed to fill out a passenger assistance form. According to the Britt operations manual, gate personnel were required to complete such a form for “non-ambulatory” passengers. “Non-ambulatory” status was defined in terms of whether an unaccompanied handicapped passenger would be able to proceed to an emergency exit without assistance. If not, then the passenger is nonambulatory.

When Hastalis refused to provide any information, including his name, he was advised that he would not be permitted to board the airplane. He persisted in his refusal, and the plane left without him. He eventually reached Chicago by bus, and the price of his ticket was refunded to him by Britt. Hastalis then proceeded, as previously indicated, to file charges of handicapped discrimination against Britt.

The determinative issue on appeal is whether the Illinois Human Rights Act is preempted by the Federal Aviation Act in this case. We affirm the Commission ruling that preemption by Federal law deprives it of jurisdiction to consider Hastalis’ complaint.

Both parties agree that the Federal Aviation Act (Act) preempts Illinois law to the extent it relates to the services of an air carrier. The Act expressly provides:

“[N]o State *** shall enact or enforce any law, rule, regulation standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier having authority under subchapter IV of this chapter to provide air transportation.” 49 U.S.C. app. § 1305(a)(1) (1988).

Hastalis contends that requiring blind passengers to complete passenger assistance forms is not a “service” within the meaning of section 1305(a)(1), and hence, the express preemption provision does not apply to this case. In developing this argument, Hastalis insists that the “services” referred to in the statute refer to the revenue-producing lines themselves or to the provision of air transportation between two points, but not to ground operations of airlines.

The arguments advanced by Hastalis ignore the obvious meaning of the Federal statute. The primary service offered by any air carrier is air transportation between two points, and Hastalis’ claim of discrimination is based upon the denial of access to that service, i.e., refusal to allow him to board an aircraft without a completed passenger assistance form. In other words, the “service” at issue here is not the requirement of a form but the provision of air transportation and, as such, the Federal law expressly preempts any State law relating to air transportation service. The question presented by this case is whether the Illinois Human Rights Act provision that all persons have a right to full and equal enjoyment of the facilities and services of any public place of accommodation (Ill. Rev. Stat. 1985, ch. 68, par. 5 — 102) prevents Britt from requiring a passenger assistance form for Hastalis.

Federal courts have held that the Federal Aviation Act bars State law claims of handicap discrimination in the provision of air transportation services. In Hingson v. Pacific Southwest Airlines (9th Cir. 1984), 743 F.2d 1408, a blind plaintiff challenged the airline’s requirement that he sit in the front row of the passenger section of the aircraft. When he refused to sit in the seat designated, he was asked to leave the aircraft and was eventually removed by police officers. He sought recovery under a California statute providing for full and equal access to common carriers, including airplanes, for blind and physically disabled persons. Hingson argued that there was no preemption as long as the California law did not conflict with any Federal law. The Federal Court of Appeals rejected that construction of the Federal Aviation Act and ruled that section 105(a)(1) of the Act preempted the California law in that State laws and regulations “relating to rates, routes or services” are preempted whether they conflict with Federal law or not. The court stated:

“Regulation of air carrier seating policies for handicapped passengers involves the regulation of services within the meaning of section 1305(a)(1).” 743 F.2d at 1415.

The same conclusion was reached in Anderson v. USAir, Inc. (D.C. Cir. 1987), 818 F.2d 49, where it was held that a State law imposing an obligation to give courteous service was preempted by Federal law. In Anderson the discrimination claim involved airline seating policies for blind passengers.

Here Hastalis argues at length that Illinois law is not subject to implied preemption, only express, and that the preemption here was not express. (See Bieneman v. City of Chicago (7th Cir. 1988), 864 F.2d 463.) However, if a State law relates to “rates, routes or service,” it has been held barred by express preemption, rather than implied. Ellinois Corporate Travel, Inc. v. American Airlines, Inc. (7th Cir. 1989), 889 F.2d 751.

Britt points out that it would be unreasonable to have airline boarding and seating policies regulated by the individual States. An interstate carrier would be required to have different gate policies and different seating arrangements depending on the State in which a particular flight was being boarded.

We do not reach the issue of the reasonableness of the Britt policy as applied to Hastalis. However, we note that the safety, not only of Hastalis, but of all the passengers on the airplane is involved here. In case of an emergency, passengers needing assistance must be quickly identified and given help to ensure access to exits for themselves and all others. The policies which Britt enforced here were obviously intended to provide for the safety of all the passengers.

Following the interpretation of the statutes involved here by the Federal courts, we hold that the Commission did not err in dismissing Hastalis’ complaint. The Commission lacks jurisdiction in this case, and we affirm its order.

Affirmed.

HEIPLE, P.J., and GORMAN, J., concur.


author: JUSTICE STOUDER

text:
    ROBERT KOERNER, Petitioner-Appellee, v. MUNICIPAL OFFICERS ELECTORAL BOARD OF COAL CITY et al., Respondents-Appellants.
    Third District
    No. 3—90—0145
    Opinion filed October 18, 1990.

      Arthur C. Thorpe, of Klein, Thorpe & Jenkins, Ltd., of Chicago, and John M. Tira, of Tira & Tira, of Coal City (Patrick A. Lucansky, of counsel), for appellants.
    Rosenthal, Murphey, Coblentz & Janega, of Chicago (Peter D. Coblentz, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Robert Koerner, filed a petition requesting a referendum on the issue of changing the Village of Coal City’s commission form of government to a president-trustee form of government. Under the proposition, the trustees were to be elected from separate districts within the village. The respondent, M.J. McEvoy, filed an objector’s petition with corespondent, the Municipal Officers Electoral Board of the Village of Coal City (Electoral Board or Board). Following a hearing, corespondents Richard W. Roseland, Gerald Provance and Carol Haughtigan, members of the Electoral Board, sustained one of the objections raised by McEvoy and held the petition to be invalid. Petitioner appealed to the circuit court of Grundy County, which reversed the decision of the Electoral Board and ordered the proposition be placed on ballot for the March 20, 1990, election. The vote was in favor of the proposition. The respondents appeal.

The facts in the instant case are not in dispute. The Village of Coal City is a non-home-rule municipality with a population under 5,000. The petition asked that the following proposition be submitted to the voters:

“Shall the Village of Coal City be governed by a Village Board con- Yes sisting of a President elected _ at-large and one Village Trustee elected from each of 6 districts? No”

McEvoy raised three objections to the petition for referendum. The Electoral Board denied two of the objections. However, the Board sustained McEvoy’s objection that “the Petition for Referendum does not comply with the statutory provisions for the election of a Board of Trustees for the Village in single member districts.” On appeal, the circuit court held the Board’s ruling was incorrect and that the proposition in the petition was valid. The court ordered that the proposition be placed on the March 20,1990, ballot.

On appeal, the parties raise numerous objections and cross-objections. However, we find that our determination on the issue squarely presented to the circuit court makes it unnecessary to reach the other issues raised.

Section 7 of article VII of the Constitution of the State of Illinois (Ill. Const. 1970, art. VII, §7) provides in pertinent part: “Counties and municipalities which are not home rule units shall have only powers granted to them by law and the powers (1) ***; (2) by referendum, to adopt, alter or repeal their forms of government provided by law; (3) in the case of municipalities, to provide by referendum for their officers, manner of selection and terms of office.”

The Illinois Municipal Code (Code) provides for a president-trustee form of government for villages and incorporated towns. (Ill. Rev. Stat. 1989, ch. 24, par. 3 — 5—1 et seq.) The Code contemplates a board of trustees comprised of six members, although villages with a population under 5,000 may elect by referendum to have only four trustees. (Ill. Rev. Stat. 1989, ch. 24, pars. 3 — 5—2, 3 — 5—2a.) In villages with a population of 5,000 or more, the village can be divided “into 6 compact and contiguous districts of approximately equal population,” with each district represented by one trustee elected from that district. Ill. Rev. Stat. 1989, ch. 24, pars. 3 — 5—5, 3 — 5—6.

The issue in this case is whether the Village of Coal City, with a population under 5,000, can adopt a president-trustee form of government which divides the municipality into districts for purposes of electing trustees.

Much of the parties’ arguments in this case center on the powers of home rule units verses the powers of non-home-rule units. However, the Illinois Constitution grants both home rule and non-home-rule units the power to “adopt, alter or repeal” their form of government “provided by law.” (Ill. Const. 1970, art. VII, §§6(f), 7(2).) We need not reach the issue of whether the scope of that power is different depending on the government unit’s status as home rule or non home rule. The decision in the instant case rests solely on an interpretation of a non-home-rule unit’s powers under article VII, section 7.

The respondents contend that the circuit court erred in reversing the Electoral Board’s decision, because the Village of Coal City cannot adopt a form of government which is contrary to the provisions of the Illinois Municipal Code, namely that dividing into trustee districts is limited to villages with a population of 5,000 or more. In response, the petitioner points to the fact that article VII, section 7(2), of the Constitution allows non-home-rule units to “alter” the forms of government provided by the legislature in the Illinois Municipal Code. The petitioner argues that the 5,000-person population requirement is a provision which a village can alter in order to meet the specific needs of the municipality.

We do not read the term “alter” in section 7(2) as allowing local governmental units to completely abrogate the basic requirements for forms of government set forth in the Illinois Municipal Code. The 5,000-person population requirement in sections 3 — 5—5 and 3— 5 — 6 of the Code are not provisions which can be altered by a municipality. The population requirement rests on the legislature’s judgment that villages with populations under 5,000 persons are not large enough to be divided into separate districts. To allow a municipality to “alter” this requirement would render sections 3 — 5—5 and 3 — 5—6 meaningless. The population requirement is a basic provision of the statute governing the president-trustee form of government. The requirement cannot be “altered” by a municipality.

The petitioner’s reliance on Clarke v. Village of Arlington Heights (1974), 57 Ill. 2d 50, 309 N.E.2d 576, is misplaced. In Clarke, the Illinois Supreme Court upheld a home rule municipality’s power to increase the number of trustees from six to eight, when the statute (v. Rev. Stat. 1989, ch. 24, par. 3 — 5—2) provides for six trustees. The issue of whether a municipality can alter the number of trustees to meet its particular needs is distinguishable from the question of whether a municipality must meet certain basic requirements of the statutes before it can adopt a particular form of government. The other cases cited and relied on by the parties to support their respective arguments (League of Women Voters v. County of Peoria (1987), 121 Ill. 2d 236, 520 N.E.2d 626; Boytor v. City of Aurora (1980), 81 Ill. 2d 308, 410 N.E.2d 1; Taylor v. County of St. Clair (1974), 57 Ill. 2d 367, 312 N.E.2d 231) are similarly distinguishable and of little help in determining the issue before us.

We also find no merit to petitioner’s contention that dividing into trustee districts is simply a “manner of selection” which municipalities are allowed to select under section 7(3) of article VII.

In sum, we find the petition was invalid because it proposed a form of president-trustee government which, because of its population, the Village of Coal City could not adopt.

Therefore, the judgment of the circuit court of Grundy County is reversed and remanded with directions that the circuit court affirm the decision of the Electoral Board and vacate the results of the election.

Reversed and remanded with directions.

SCOTT and GORMAN, JJ., concur.


text:
    DENNIS STACY, Plaintiff, v. AMETEK, INC., Defendant and Third-Party Plaintiff-Appellant (Dow Chemical Company, Third-Party Defendant-Appellee).
    Third District
    No. 3—90—0159
    Opinion filed October 30, 1990.

      Michael Gahan, of Rooks, Pitts & Poust, of Joliet (Pamela Davis, of counsel), for appellant.
    George F. Mahoney III, of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (Roger D. Rickmon, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

In 1984 Dennis Stacy, an employee of Dow Chemical Company, was injured when some cartons of indigo dye fell on him while he was at work sweeping around the raw material storage area at a Dow warehouse in Joliet, Illinois. Stacy filed a personal injury action against Ametek, Inc., the supplier of the indigo to Dow, alleging that Ametek was negligent in the method used to pack the dye and in the selection of cartons and pallets used for loading. Ametek then filed a third-party complaint for contribution against Dow, in which it alleged that Dow had controlled and directed the packing of the indigo and had supplied the cartons and pallets used by Ametek.

On November 2, 1989, Dow filed a motion to dismiss the third-party complaint pursuant to section 2(d) of the Contribution Act (Ill. Rev. Stat. 1985, ch. 70, par. 302(d)) on the ground that a good-faith settlement had been reached between Stacy and Dow. According to the motion, Dow offered to settle various claims that Stacy was asserting against Dow for $20,000 upon the condition that the Illinois Industrial Commission approve the payment as settlement of all claims of Stacy against Dow as a result of illness or injury suffered while an employee of Dow. Dow agreed to waive its right to a workers’ compensation lien against any recovery plaintiff might obtain from a third party for his 1984 injuries. Plaintiff accepted Dow’s tender of $20,000 and submitted three signed settlement contracts to the Industrial Commission for approval. They were approved. Dow executed a lien waiver prepared by plaintiff which recited:

“As consideration for this waiver, Dow acknowledges that Dennis Stacy has agreed to settle three (3) workman’s [sic] compensation cases against Dow and to sign a release which will waive any and all claims Stacy might have against Dow concerning his injuries.”

In response to the motion to dismiss, Ametek contended that there was no good-faith settlement within the meaning of the statute because Stacy has not executed a release. The trial court allowed the motion to dismiss, and Ametek filed this appeal.

The provision of the Contribution Act at issue in this cause is as follows:

“2. Right of Contribution, (a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, *** there is a right of contribution among them, even though judgment has not been entered against any or all of them.
* * *
(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury ***, it does not discharge any of the other tortfeasors from liability for the injury *** unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.
(d) The tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability for any contribution to any other tortfeasor.” Ill. Rev. Stat. 1985, ch. 70, par. 302.

When a settlement agreement is reached pursuant to the Contribution Act and a preliminary showing is made that the settlement was in good faith, the burden of proof on the issue of good faith of the settlor shifts to the party claiming an absence of good faith. (Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 478 N.E.2d 581.) Here Dow made a preliminary showing of a good-faith settlement between Dow and Stacy in the trial court. The settlement offer, the lien waiver, the cancelled check for $20,000, and other pertinent exhibits were offered to demonstrate the good faith of the parties to the settlement. The burden was then upon Ametek to establish the contrary. The trial court ruled that Ametek failed to meet that burden, and we agree.

Ametek insists that the settlement contract was not enforceable because Stacy failed to execute a release as required by the agreement and by section 2(c) of the Contribution Act. Ametek reasons that there was, therefore, no valid settlement.

Dow relies upon the provisions of the lien waiver signed by Dow which stated that Dow has a workers’ compensation lien concerning Stacy’s 1984 injuries, that Dow is aware that Stacy will be filing a third-party action for those injuries, and that Dow wishes to waive its lien rights with regard to any settlement received by Stacy in that action. A waiver of a workers’ compensation lien was held to constitute “consideration” under section 2(c) of the Contribution Act in Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 546 N.E.2d 524, where the court said:

“It is not necessary that a person waiving a cause of action receive satisfaction in money. Generally, anything of detriment to one side, or benefit to the other, may constitute sufficient consideration to support a settlement. (Smucker v. Larimore (1859), 21 Ill. 267.) Plaintiff cannot deny that he obtained a benefit from [his employers’] waiver of their workers’ compensation lien. Had [his employers] not waived their lien, the first $149,737 of plaintiff’s recovery would have gone to [his employers]. Plaintiff’s argument that the waiver has no value ignores reality.” 131 Ill. 2d at 321, 546 N.E.2d at 530.

Similarly, in the case at bar, without Dow’s lien waiver, any money (up to $20,000) paid to Stacy by Ametek would go to Dow, not to Stacy. We cannot ignore the value of the waiver.

Key to our decision in this case is the ruling in Perez v. Espinoza (1985), 137 Ill. App. 3d 762, 484 N.E.2d 1232, where the court stated that subsections (c) and (d) of section 2 of the Contribution Act, when read together, provide that a tortfeasor who settles with a claimant in good faith is discharged from all liability for any contribution to any other tortfeasor. Thus, it is the existence of a settlement agreement that is important here, not the execution of a written release. Stacy’s acceptance of the settlement agreement amounted to an implied release and would be an affirmative defense in any action to impose additional liability upon Dow.

Ametek relies upon Meserole v. Lee C. Moore Corp. (1986), 151 Ill. App. 3d 736, 502 N.E.2d 1230, for the proposition that where the settlement agreement was not accompanied by a release or covenant not to sue, the agreement was not a bar to a third-party complaint under the Contribution Act. Meserole is distinguishable on its facts. There the contract included an express reservation of the right to litigate insurance coverage and issues of apportionment. Later efforts to litigate those issues were obviously not barred in that case.

We conclude that the trial court correctly ruled that Dow has established a good-faith settlement with Stacy and that the agreement is enforceable. The order of the circuit court of Will County dismissing the third-party complaint is affirmed.

Affirmed.

STOUDER and GORMAN, JJ., concur.