                                   Illinois Official Reports

                                           Appellate Court




                             Kaufman v. Barbiero, 2013 IL App (1st) 132068




Appellate Court               GERALD S. KAUFMAN and GERALD S. KAUFMAN
Caption                       CORPORATION, a Delaware Corporation, Plaintiffs-Appellants, v.
                              ANTHONY V. BARBIERO, Defendant-Appellee (Nanette
                              Appel-Bloom and Alan S. Jacobs, Defendants).


District & No.                First District, Fifth Division
                              Docket No. 1-13-2068


Filed                         November 1, 2013
Rehearing denied              December 11, 2013


Held                          In an action arising from a dispute over the administration of a land
(Note: This syllabus          trust holding a commercial building in Pennsylvania under the
constitutes no part of the    management of an Illinois trustee, the nonresident beneficiaries had
opinion of the court but      sufficient minimum contacts with the State of Illinois that the exercise
has been prepared by the      of personal jurisdiction over them by the State of Illinois did not
Reporter of Decisions         offend federal due process; therefore, the trial court=s dismissal of the
for the convenience of        suit for lack of personal jurisdiction was reversed and the cause was
the reader.)                  remanded for further proceedings.




Decision Under                Appeal from the Circuit Court of Cook County, No. 12-CH-30537; the
Review                        Hon. Franklin U. Valderrama, Judge, presiding.



Judgment                      Reversed and remanded.
     Counsel on                Roger B. Harris and Kelly Smith-Haley, both of Fox, Swibel, Levin &
     Appeal                    Carroll, LLP, of Chicago, for appellants.

                               James Hutchison, of Katen Muchin Rosenman, LLP, of Chicago, for
                               appellee.



     Panel                     PRESIDING JUSTICE GORDON delivered the judgment of the
                               court, with opinion.
                               Justices McBride and Taylor concurred in the judgment and opinion.




                                                   OPINION


¶1         The circuit court of Cook County dismissed this suit solely against defendant Anthony V.
       Barbiero on the ground that it lacked personal jurisdiction over him. This appeal is based on
       only three facts, none of which are in dispute. The facts are that: (1) defendant is the
       beneficiary of a land trust; (2) the trust is administered in Illinois; and (3) defendant has no
       other contacts with the State of Illinois other than his ownership interest in a trust administered
       here. The issue on this appeal is solely a legal question. It is whether, by itself, an interest in a
       trust administered in Illinois may qualify as “minimum contacts” with the State of Illinois,
       such that the due process clause is not offended by haling a nonresident defendant into court
       here concerning that trust.
¶2         The Illinois long-arm statute specifically provides for personal jurisdiction over a
       nonresident defendant who owns “an interest in any trust administered within this State,”
       where the cause of action concerns this interest. 735 ILCS 5/2-209(a) (West 2012). Since
       personal jurisdiction is specifically provided for by our state’s long-arm statute, the only
       question before us is whether constitutional due process is also satisfied when the beneficiary’s
       ownership interest in a trust administered here creates the beneficiary’s only points of contact
       with our state.
¶3         We granted plaintiffs’ motion to accelerate this appeal, an action which was also requested
       by defendant Barbiero. For the following reasons, we reverse and remand for further
       proceedings consistent with this opinion.




¶4                                           BACKGROUND
                                                 -2-
¶5         Since the trial court did not hold an evidentiary hearing to decide the jurisdictional issue,
       the only evidence before the trial court and the only evidence before us in the record on appeal
       consists of documentary evidence, such as the complaint and the affidavits submitted by both
       parties. We describe these documents in detail below.

¶6                                            I. The Complaint
¶7         In the complaint, plaintiff trustee seeks to reform the trust agreement executed in 1959. The
       trust agreement denies the trustee the power to mortgage or sell the property without the
       written approval of all 600 beneficiaries. It is this provision which the trustee seeks to reform
       through this present action. This suit is brought as a class action, with the 600 beneficiaries
       compromising the class. There are three named class representatives: defendants Nanette
       Appel-Bloom, Alan S. Jacobs and Anthony V. Barbiero. All three named representatives have
       previously objected to the proposed reformation of the trust agreement. Of the three
       representatives, only defendant Barbiero has raised a jurisdictional challenge.
¶8         The complaint alleges that, in 1959, five individuals, including Benjamin Kaufman (father
       of Gerald, the present trustee), entered into an agreement with more than 600 beneficiaries for
       the purpose of purchasing the trust property. Under the 1959 agreement, the five original
       trustees agreed to hold the title to the trust property for the benefit of the beneficiaries, and the
       beneficiaries subscribed to beneficial ownership interests of $5,000 each, or fractions of that
       amount, in order to fund the $4.5 million purchase price of the property. The property, which is
       known as the “Terminal Commerce Building,” is a large office and commercial building
       located at 401 North Broad Street in Philadelphia.
¶9         The trust agreement, which is attached to the complaint, states that all five original trustees
       reside in New York and that their office is in New York City. The agreement provides that the
       trustees will collect rents, keep full accounts and records, submit annual reports to the
       beneficiaries, retain attorneys and accountants as needed, maintain bank accounts for receiving
       and disbursing funds, and make distributions to the beneficiaries out of any surplus funds.
       Thus, from the inception of the trust, the trust property was located in one state (Pennsylvania),
       while the trustees were located in another state (New York).
¶ 10       The provision currently at issue states that the trustees “shall not sell or agree to sell,
       mortgage, encumber or transfer the real property or perform or cause to be performed any acts
       which will in any respect diminish or affect the title to the real property or create any liens,
       defects or encumbrances herein, other than as provided in the lease dated September 3, 1959,
       *** except upon the written direction of all” the beneficiaries. The complaint refers to this
       section as the “Written Approval Provision.”
¶ 11       The complaint alleges that the reformation of the written approval provision is needed now
       because a mortgage on the property has matured and is currently in default, and the property is
       worth substantially more than the amount owed on the mortgage. However, the trustee is
       unable to pay the debt because he cannot mortgage or sell the trust property without the written
       approval of all 600 beneficiaries which, as a practical matter, is not possible to obtain.


                                                     -3-
¶ 12       The complaint alleges that, despite the written approval provision, between 1959 and 1978,
       the five original trustees entered into loans and mortgages, without the prior written approval
       of the beneficiaries.
¶ 13       In 1977, Gerald Kaufman succeeded his father, Benjamin Kaufman, as a successor trustee.
       In 1983, Benjamin Kaufman died, and the remaining four original trustees deeded the trust
       property to Gerald Kaufman as the sole successor trustee and signed an agreement conveying
       to him all their powers and authority under the 1959 trust agreement.
¶ 14       In 1983, when Kaufman became the sole trustee, he circulated a proposed agreement to the
       beneficiaries which, among other things, eliminated the written approval provision. The
       complaint alleges: that 511 beneficiaries, who hold approximately 90% of the beneficial
       interests under the trust, have approved and signed the proposed agreement; and that, of the
       remaining beneficiaries, “an estimated 45 are believed to be of an age and condition hindering
       them from being able to sign or otherwise decide” about the proposed agreement, and “another
       estimated 45 have not been located.” The complaint alleges that “only four [beneficiaries],
       holding less than 1% of the beneficial interests,” object to the proposal.
¶ 15       The complaint alleges that, as the prior trustees had previously done, Kaufman obtained
       “loans and grant[ed] mortgages on the Trust Property to secure the loans which were used to
       pay off previous loans secured by mortgage, again with notice to the Beneficiaries upon grant
       of the mortgages and without objection by any Beneficiary at the time.” In 1999, Kaufman
       formed the Gerald S. Kaufman Corporation (Kaufman Corp.), a Delaware corporation, and
       transferred title to the trust property to the corporation.
¶ 16       Kaufman entered into three mortgages, including one in 1999 which matured by its terms
       on June 30, 2009, and which was then held by the Wells Fargo Bank. Wells Fargo signed a
       forbearance agreement with Kaufman Corp. in which Wells Fargo agreed not to pursue its
       remedies including foreclosure, with the right to cease forbearance any time after July 1, 2010,
       in return for the rent from the property and other payments. Wells Fargo subsequently assigned
       the 1999 mortgage to ARIC Capital Holdings, L.L.C. (ARIC), which is not currently seeking
       foreclosure.
¶ 17       In 2007, defendant Nanette Appel-Bloom, along with Ronald and Rita Appel, sued
       Kaufman, Kaufman Corp. and Norwest Bank (which was later acquired by Wells Fargo). All
       three individuals had inherited interests from two of the original beneficiaries, and their
       collective beneficial interest was less than 1%. The suit alleged that Kaufman and Kaufman
       Corp. lacked the authority to mortgage the property and thus the 1999 mortgage (subsequently
       held by Wells Fargo and ARIC) was invalid. The complaint in the case at bar alleges that this
       prior suit was “ultimately dismissed, chiefly on grounds of [statute of] limitations and laches
       [(Appel v. Kaufman, 728 F. Supp. 2d 684 (E.D. Pa. 2010))], and the dismissal was affirmed by
       the United States Court of Appeals for the Third Circuit [(Appel v. Kaufman, 481 F. App’x 774
       (3d Cir. 2012))].” The complaint alleges that, “[a]s a consequence of the Appel-Bloom suit,
       potential lenders are unwilling to extend loans on the security of any mortgage [that Kaufman
       Corp.] might execute and title insurers are unwilling to insure the validity of the liens of any
       such mortgage.” Also, in 2011, defendant Barbiero, who holds a beneficial interest of less than

                                                  -4-
       1%, sent a letter to Kaufman stating that Kaufman lacked the authority to obtain mortgages on
       the trust property.

¶ 18                                II. Defendant’s Motion to Dismiss
¶ 19       On November 16, 2012, defendant Barbiero moved to dismiss plaintiffs’ complaint for
       lack of personal jurisdiction. The motion was based primarily on an unpublished federal
       district case: Trustees of the Central States, Southeast & Southwest Areas Health & Welfare
       Fund v. State Farm Mutual Automobile Insurance Co., No. 89 C 0435, 1991 U.S. Dist. LEXIS
       13282 (N.D. Ill. Sept. 3, 1991). As we explain later in the analysis section of this opinion, this
       case has no precedential value.
¶ 20       In an affidavit attached to his motion, defendant Barbiero stated that he and his wife
       together owned 0.5% interest in the trust, which they have owned since 1964, and that he had
       resided in New York during this time. Barbiero stated that the original trustees resided in New
       York and administered the agreement from their office in New York, until “they resigned and
       appointed Kaufman, an Illinois resident.” He stated that “a limited exchange of
       correspondence” occurred between Kaufman in Illinois and Barbiero in New York. However,
       payments by Kaufman as trustee to Barbiero and his wife were drawn on a New York bank; the
       accountants were “New York-based,” and “all legal inquiries were directed to New York
       counsel.”

¶ 21                                     III. Kaufman’s Affidavit
¶ 22        In response to defendant’s motion to dismiss, plaintiff Kaufman submitted an affidavit, in
       which he repeated most of the facts stated in the complaint and already set forth above. In
       addition, Kaufman stated that Kaufman Corp. has its principal offices in Chicago and that he
       has managed and administered the trust from his office in Chicago, performing such tasks as
       collecting rents, keeping accounts and records, retaining professionals as needed to perform
       tasks, maintaining bank accounts and making monthly distributions to the beneficiaries. He
       stated that, “[a]t all times since 1983, the Trust bank accounts have been maintained in
       Chicago, Illinois,” and that currently the bank account is held at MB Financial Bank, located at
       80 West Madison Street, Chicago, Illinois. Kaufman communicates with the beneficiaries
       regarding the trust property from his Chicago office.
¶ 23        Kaufman stated that, on May 24, 1983, he mailed a letter to all the beneficiaries, including
       defendant Barbiero and his wife, notifying them that he had become the sole trustee. The letter
       was accompanied by a proposed agreement which stated that “the principal place of business
       *** shall be at c/o Gerald S. Kaufman, 180 North Michigan Avenue, Suite 820, Chicago,
       Illinois 60601.” Since 1983, 511 beneficiaries approved the agreement and returned the
       signature page to Kaufman, including Susan Barbiero, defendant’s wife. The signature page
       with her signature was attached as exhibit to Kaufman’s affidavit.
¶ 24        Kaufman stated that, since becoming trustee in 1983, he had “sent and received numerous
       letters and inquiries from Mr. Barbiero regarding the Trust and my administration” of it. The
       letters and emails described below are all attached to Kaufman’s affidavit. On December 10,
                                                   -5-
       2010, Barbiero emailed Kaufman and asked about the trust and Kaufman’s administration of it.
       After Kaufman responded by email, Barbiero replied on January 18, 2011: “Thank you. You
       have answered my questions. Susan and I will agree to any authority that you need in order to
       re-finance, however, we do not favor changing” the agreement. On May 30, 2011, defendant
       Barbiero mailed a letter to Kaufman’s Chicago office stating that Kaufman should submit a
       proposal to all beneficiaries concerning the refinancing and that, if any did not approve,
       Kaufman should petition a court for equitable relief. Immediately before filing this suit in
       August 2012, Kaufman mailed a draft of the proposed complaint to defendant Barbiero. In an
       email on August 15, 2012, defendant Barbiero then requested a copy of the original 1959
       agreement, which Kaufman sent. During and after August 2012, Kaufman and Barbiero traded
       a number of emails regarding the lawsuit.
¶ 25       Kaufman stated that, on October 1, 2012, he directed his attorney to respond to inquiries
       from Barbiero for the names and addresses of the beneficiaries. The list was divided into two
       groups: those who had signed the proposed agreement; and those who had not. On October 15,
       2012, Barbiero sent a letter entitled “Notice” to the beneficiaries who had not signed.
       According to Kaufman, Barbiero’s letter “made numerous accusations about my
       administration of the trust, which were false.” In addition, the letter asked each recipient to
       send $500 so that Barbiero could “raise a defense fund” of $50,000, and it stated that Barbiero
       had already retained a law firm with offices located in both New York and Chicago “to defend
       our interests.” The letter stated: “Draw your check to the order of ‘Katten Muchin Rosenman
       Terminal Commerce Litigation.’ ” The letter concluded with: “Please join me in this fight!
       Together we can defeat Mr. Kaufman.” The letter also invited the recipients to view his blog on
       the Internet which is entitled “TerminalCommercialLitigation.” Kaufman’s affidavit states that
       Barbiero also established a website with the same name where he publishes accusations about
       Kaufman’s administration of the trust.
¶ 26       Kaufman stated that, on December 5, 2012, Barbiero mailed a second letter to the
       beneficiaries entitled “An Open Letter,” which he also posted on his website. Kaufman stated
       that this second letter also made false accusations about Kaufman’s administration of the trust
       and asked for money. The letter also directs its recipients to view Barbiero’s website:
       http://www.terminalcommercelitigation.com.

¶ 27                                 IV. The Order Appealed From
¶ 28        On March 26, 2013, the trial court heard argument from counsel on defendant Barbiero’s
       motion to dismiss for lack of personal jurisdiction. No witnesses were called, and the motion
       was decided on the documentary evidence described above. On May 30, 2013, the trial court
       issued a memorandum opinion granting defendant’s motion. The trial court found that the trust
       was administered in Illinois but that Illinois lacked the minimum contacts needed to exert
       personal jurisdiction over defendant Barbiero. The trial court’s opinion is discussed in more
       detail below in the analysis section. On June 24, 2013, the trial court issued an order pursuant
       to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) finding that there was no just reason
       to delay enforcement or appeal of the trial court’s order of May 30, 2013, “dismissing this suit

                                                  -6-
       as against defendant Barbiero for lack of personal jurisdiction.” This appeal followed.

¶ 29                                            ANALYSIS
¶ 30       On this appeal, plaintiffs argue that the trial court erred in holding that the State of Illinois
       lacked the minimum contacts needed to exercise personal jurisdiction over defendant Barbiero.
       As we noted above, we are asked to decide a purely legal question: whether, by itself, an
       interest in a trust administered in Illinois may provide the “minimum contacts” with the State
       of Illinois, such that the due process clause is not offended by haling a nonresident defendant
       into court here concerning that trust. For the following reasons, we conclude that defendant
       Barbiero has minimum contacts with Illinois, and we reverse the trial court’s order and remand
       for further proceedings consistent with this opinion.

¶ 31                                      I. Standard of Review
¶ 32        Since this is a purely legal question and none of the facts are in dispute, our standard of
       review is de novo. People v. Jackson, 2013 IL 113986, ¶ 15. In addition, in the case at bar, the
       trial court heard argument from counsel on the motion to dismiss but it did not hold an
       evidentiary hearing. When a trial court decides a jurisdictional question solely on documentary
       evidence and without an evidentiary hearing, as occurred in this case, our review is also
       de novo. Russell v. SNFA, 2013 IL 113909, ¶ 28. When a court considers whether it should
       exercise personal jurisdiction over a nonresident defendant, it is the plaintiff who bears the
       initial burden to establish a prima facie case for exercising that jurisdiction. Russell, 2013 IL
       113909, ¶ 28. We will resolve any conflicts in the pleadings and affidavits in favor of the
       plaintiff seeking jurisdiction, “but the defendant may overcome [the] plaintiff’s prima facie
       case for jurisdiction by offering uncontradicted evidence that defeats jurisdiction.” Russell,
       2013 IL 113909, ¶ 28. However, in the case at bar, there are no conflicts of fact.

¶ 33                                  II. The Illinois Long-Arm Statute
¶ 34       Section 2-209 of the Code of Civil Procedure (735 ILCS 5/2-209 (West 2012)) is
       commonly referred to as “the Illinois long-arm statute” and it “governs the exercise of personal
       jurisdiction by an Illinois court over a nonresident.” Russell, 2013 IL 113909, ¶ 29.
       “Historically, this court has employed a two-part analysis in deciding a jurisdictional issue
       under the long-arm statute, first determining whether a specific statutory provision of section
       2-209 has been satisfied, and then determining whether the due process requirements of the
       United States and Illinois Constitutions have been met.” Russell, 2013 IL 113909, ¶ 29 (citing
       Rollins v. Ellwood, 141 Ill. 2d 244, 275 (1990)).
¶ 35       The Illinois long-arm statute specifically provides that a person submits “to the jurisdiction
       of the courts of this State as to any cause of action arising from *** (13) [t]he ownership of an
       interest in any trust administered within this State.” 735 ILCS 5/2-209(a)(13) (West 2012). In
       the case at bar, the trial court found that defendant Barbiero has an ownership in a trust and that
       the trust is administered in this state. Neither party disputes this finding or the fact that the
       cause of action arises from this ownership interest. Thus, there are no issues before us

                                                     -7-
       concerning the Illinois long-arm statute, and we proceed to consider whether the due process
       clauses of the United States and Illinois Constitutions have been met.

¶ 36                                   III. Illinois Due Process Clause
¶ 37       Recently, the Illinois Supreme Court declined to consider “the extent, if any, that Illinois
       due process protections differ from federal due process protections on the issue of personal
       jurisdiction.” Russell, 2013 IL 113909, ¶ 33. The supreme court declined to consider this
       question because “[d]efendant, as the party challenging personal jurisdiction here, does not
       argue that it is entitled to greater due process protections under the Illinois due process clause
       and long-arm statute.” (Emphasis added.) Russell, 2013 IL 113909, ¶ 33.
¶ 38       Similarly, in defendant’s brief to this court, defendant does not argue that the Illinois due
       process clause provides him with greater protections than the federal due process clause.
       Defendant’s only reference to Illinois due process is in an observation in a footnote that,
       “[a]lthough some Illinois courts have deemed Illinois due process protections to be ‘separate
       and independent’ from federal due process protections, *** in practice the courts have focused
       on relevant federal due process concerns while noting that Illinois and federal due process
       concerns do not appear to diverge.” Thus, we will consider the due process issue solely under
       the federal due process clause.

¶ 39                                   IV. Federal Due Process Clause
¶ 40       The due process clause of the federal constitution’s fourteenth amendment sets the outer
       limits that a state’s long-arm jurisdiction may reach. Russell, 2013 IL 113909, ¶ 34. Federal
       courts have interpreted this clause to require that a defendant must have certain minimum
       contacts with a forum state, such that the maintenance of a suit there against the defendant does
       not offend traditional notions of fair play and substantial justice. Russell, 2013 IL 113909,
       ¶ 34.
¶ 41       Minimum contacts are evaluated differently depending on whether the forum state is
       seeking to invoke general or specific jurisdiction over the defendant. Russell, 2013 IL 113909,
       ¶ 36. “A finding of general jurisdiction permits a cause of action against a defendant based on
       activity that is entirely distinct from its activity in the forum” and is based on continuous and
       systemic activity in the forum by the defendant. Russell, 2013 IL 113909, ¶ 36. In the case at
       bar, there are no claims that general jurisdiction applies. Thus, if the State of Illinois may
       extend jurisdiction over defendant Barbiero, it is only through specific jurisdiction.
¶ 42       “Specific jurisdiction requires a showing that the defendant purposefully directed its
       activities at the forum state and the cause of action arose out of or relates to the defendant’s
       contacts with the forum state.” Russell, 2013 IL 113909, ¶ 40 (citing Burger King Corp. v.
       Rudzewicz, 471 U.S. 462, 472 (1985)). “Under specific jurisdiction, a nonresident defendant
       may be subjected to a forum state’s jurisdiction based on certain ‘single or occasional acts’ in
       the state but only with respect to matters related to those acts.” (Internal quotation marks
       omitted.) Russell, 2013 IL 113909, ¶ 40 (quoting International Shoe Co. v. State of
       Washington, 326 U.S. 310, 318 (1945)). “[W]hen a nonresident defendant purposefully

                                                   -8-
       derives [a] benefit from its interstate activities in other jurisdictions it would be unfair to allow
       that defendant to avoid any legal consequences that proximately arose from those same
       activities.” Russell, 2013 IL 113909, ¶ 41 (citing Burger King Corp., 471 U.S. at 473-74).

¶ 43                                  V. Minimum Contacts and Trusts
¶ 44                                     A. Cases Cited by the Parties
¶ 45       In plaintiffs’ brief to this court, plaintiffs cite only one case involving long-arm jurisdiction
       and a trust: Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). In
       defendant’s appellate brief, defendant cites two additional cases: (1) Sullivan v. Kodsi, 359 Ill.
       App. 3d 1005 (2005); and (2) Trustees of the Central States, Southeast & Southwest Areas
       Health & Welfare Fund v. State Farm Mutual Automobile Insurance Co., No. 89 C 0435, 1991
       U.S. Dist. LEXIS 13282 (N.D. Ill. Sept. 3, 1991). We have located several more, including: (1)
       Hansen v. Peoples Bank of Bloomington, 594 F.2d 1149 (7th Cir. 1979); (2) Tankersley v.
       Albright, 374 F. Supp. 530 (N.D. Ill. 1973) (cited with approval in Tankersley v. Albright, 514
       F.2d 956, 967 n.24 (7th Cir. 1975) (appellate court reversed two subsequent orders in the
       Tankersley litigation but stated that the first one, concerning personal jurisdiction, was
       “excellent”)); and (3) Ohlheiser v. Shepherd, 84 Ill. App. 2d 83 (1967). Since there are only a
       few relevant cases, we describe them in detail below.
¶ 46       However, before we discuss the relevant cases, we observe that one of the cases cited by
       the parties, 1 Trustees of the Central States, is an unpublished 1991 opinion from the United
       States District Court for the Northern District of Illinois. Although the local rules of the federal
       district court do not address the precedential value of their unpublished opinions, the Circuit
       Rules of the Seventh Circuit Court of Appeals provide some guidance, and they state that no
       unpublished order issued before January 1, 2007, may be cited except to support a claim of
       preclusion or to establish the law of the case. 7th Cir. R. 32.1(d) (eff. Jan. 1, 2007). See also
       Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) (permitting the citation of unpublished opinions only if
       they were issued after January 1, 2007). Illinois Supreme Court Rule 23 also prohibits the
       citation of unpublished opinions, except to support a claim of “double jeopardy, res judicata,
       collateral estoppel or law of the case.” Ill. S. Ct. R. 23(e)(1) (eff. Jan. 1, 2011). Thus, we will
       not consider this case in our analysis.
¶ 47       We observe that, in the case at bar, the trial court relied primarily on this unpublished case
       in reaching its holding. In its memorandum opinion, the trial court set forth the “principles” as
       laid out in Trustees of the Central States and then concluded: “Applying these principles, the
       Court finds that Plaintiffs have not established that [defendant] Barbiero had sufficient
       minimum contacts.” Kaufman v. Appel-Bloom, No. 2012-CH-30537, slip op. at 8 (Cir. Ct.
       Cook Co. May 30, 2013). The trial court’s reliance on an opinion that lacks precedential value
       undermines its own holding.

¶ 48                                       B. Relevant Precedent
           1
            In defendants’ brief to this court, defendants argue that “the Circuit Court correctly followed the
       federal district court’s decision in Trustees of Central States.”
                                                      -9-
¶ 49       Although not a trust case, International Shoe was the seminal case which established
       “minimum contacts” as the yardstick against which the constitutionality of long-arm
       jurisdiction was to be measured. In 1945, the United States Supreme Court stated in
       International Shoe that “due process requires only that in order to subject a defendant to a
       judgment in personam, if he be not present within the territory of the forum, he have certain
       minimum contacts with it such that the maintenance of the suit does not offend ‘traditional
       notions of fair play and substantial justice.’ ” International Shoe, 326 U.S. at 316 (quoting
       Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
¶ 50       In 1950, five years after International Shoe, the United States Supreme Court decided
       Mullane v. Central Hanvover Bank & Trust, 339 U.S. 306 (1950), which is discussed at length
       by both parties to this appeal. In Mullane, the Central Hanover Bank established “a common
       fund.” Mullane, 339 U.S. at 308. Under New York state statute, a trust company was
       permitted, “with approval of the State Banking Board, [to] establish a common fund and,
       within prescribed time limits, [to] invest therein the assets of an unlimited number of estates,
       trusts or other funds of which it is trustee.” Mullane, 339 U.S. at 308-09. Beneficiaries would
       benefit because they would obtain a “diversification of risk and economy of management” that
       would not normally be “extended to those whose capital standing alone would not obtain such
       advantage.” Mullane, 339 U.S. at 308.
¶ 51       In Mullane, the bank pooled together into a common fund 113 trusts, of which it was
       trustee, and notified the beneficiaries, some of whom were not residents of New York.
       Mullane, 339 U.S. at 309. One nonresident challenged New York’s jurisdiction over him as a
       violation of federal due process, and this litigation followed. Mullane, 339 U.S. at 311. The
       United States Supreme Court observed that this was “a challenge to the power of the State–the
       right of its courts to adjudicate at all as against those beneficiaries who reside without the State
       of New York.” Mullane, 339 U.S. at 311. The Court stated that it did not matter whether a state
       chose to characterize this type of litigation as in rem or in personam jurisdiction, because the
       result would be the same. “[W]hatever the technical definition of [a state’s] chosen procedure,
       the interest of each state in providing [a] means to close trusts that exist by the grace of its laws
       and are administered under the supervision of its courts is so insistent and rooted in custom as
       to establish beyond [a] doubt the right of its courts to determine the interests of all claimants,
       resident or nonresident, provided its procedure accords full opportunity to appear and be
       heard.” Mullane, 339 U.S. at 313.
¶ 52       Although Mullane was decided only five years after International Shoe, Mullane did not
       mention minimum contacts at all and decided the issue on a completely different basis–the
       right of the state to decide issues related to its trusts. The Mullane Court did not consider
       whether a beneficiary’s ownership interest in a trust administered in the forum state created
       minimum contacts with that state, as defined by International Shoe.
¶ 53       Eight years after Mullane, the United States Supreme Court decided Hanson v. Denckla,
       357 U.S. 235 (1958), which again concerned a trust and long-arm jurisdiction. Although the
       case involved jurisdiction over a trustee rather than over a beneficiary, the case is still
       instructive because it shows the factors that the Court found important in determining whether
       minimum contacts existed. In Hanson, the Court held that the State of Florida lacked personal
                                                    - 10 -
       jurisdiction over a Delaware trustee, although the trustee was appointed in Florida, but where
       the trust was not administered in Florida, where its assets were not held in Florida, and where
       the trustee took no other actions in Florida on which to base jurisdiction. Hanson v. Deckla,
       357 U.S. at 251-52. Thus, the location of the administration of the trust was a significant factor,
       but the place of appointment was not.
¶ 54       Nine years after Hanson, this court decided Ohlheiser v. Shepherd, 84 Ill. App. 2d 83
       (1967). Although the Ohlheiser opinion set forth the facts and holding of Hanson, it then
       concluded that Hanson was not “controlling here,” without any explanation why. Ohlheiser,
       84 Ill. App. 2d at 87-88, 90. The court then proceeded to reach the exact opposite holding from
       Hanson: that the place of appointment of a trustee was dispositive in deciding whether a court
       had personal jurisdiction over the trustee. Ohlheiser, 84 Ill. App. 2d at 90-91.
¶ 55       The Ohlheiser court held that the Wisconsin trustee’s sole act of accepting an appointment
       as trustee from an Illinois court was a “sufficient contact with the State of Illinois” to subject
       him to personal jurisdiction here and satisfy due process. Ohlheiser, 84 Ill. App. 2d at 93. The
       trust property consisted of shares of stock, and the court acknowledged that the trustee could
       “step across the state line with the portable trust assets in his pocket.” Ohlheiser, 84 Ill. App.
       2d at 91. The trustee’s only acts were to receive and send dividend checks and tax returns by
       mail, which were acts presumably done by him in Wisconsin; and all the beneficiaries
       consented to the appointment of this nonresident trustee. Ohlheiser, 84 Ill. App. 2d at 89. Like
       Ohlheiser, Hanson also involved a testamentary trust and a nonresident trustee. However,
       Hanson specifically rejected the conclusion reached in Ohlheiser, stating that “[i]f such a basis
       of jurisdiction were sustained, probate courts would enjoy nationwide service of process.”
       Hanson, 357 U.S. at 248. Since Ohlheiser conflicts with Hanson, without offering any
       explanation of why it concluded that binding United States Supreme Court precedent was “not
       controlling,” we do not find Ohlheiser persuasive.
¶ 56       Several years after Ohlheiser, a federal district court in Illinois decided Tankersley v.
       Albright, 374 F. Supp. 530 (N.D. Ill. 1973). Although this opinion was not appealed to the
       Seventh Circuit Court of Appeals, a subsequent order in the case was, which gave the Seventh
       Circuit the opportunity to cite with approval “the trial court’s excellent analysis of the Mullane
       doctrine” contained in the trial court’s earlier opinion. Tankersley v. Albright, 514 F.2d 956,
       967 n.24 (7th Cir. 1975).
¶ 57       Tankersley is completely on point with our case. Like the case at bar, the question in
       Tankersley was whether Illinois had long-arm jurisdiction over two nonresident beneficiaries
       of a trust administered in Illinois. Tankersley, 374 F. Supp. at 531. Similar to the case at bar,
       the trustees in Tankersley had instituted an action in Illinois for a declaratory judgment after
       two nonresident beneficiaries had objected to the trustees’ proposed management actions.
       Tankersley, 374 F. Supp. at 531-33. The Tankersley court held that “there were sufficient
       minimal contacts on the part of the defendants directed to or within the State of Illinois to
       confer personal jurisdiction upon them.” Tankersley, 374 F. Supp. at 537.
¶ 58       Tankersley differs slightly from our case, in that the trust property consisted of shares of
       stock and the Illinois legislature had not yet enacted subsection (13) of the Illinois long-arm

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       statute, which specifically provides for jurisdiction for trusts administered here. However, the
       enactment of the state statute does not affect our analysis of federal due process.
¶ 59        The Tankersley court held that the nonresident defendant beneficiaries could have
       reasonably anticipated that their interest in and objections to the administration of the trust
       being managed by the plaintiff trustees in Illinois would lead to litigation in Illinois and subject
       them to jurisdiction here. Tankersley, 374 F. Supp. at 535 (defendants’ acts “all evidence a
       serious and continuing concern for the proper management” of the trust in Illinois). Like the
       Seventh Circuit did (Tankersley, 514 F.2d at 967), we find this reasoning persuasive.
¶ 60        A few years after Tankersley, the Seventh Circuit decided Hansen v. Peoples Bank of
       Bloomington, 594 F.2d 1149, 1152 (7th Cir. 1979), in which the Seventh Circuit once again
       noted the district court’s “ ‘excellent’ ” analysis in Tankersley. Like both Tankersley and the
       case at bar, Peoples Bank 2 concerned whether an Illinois state court could exercise long-arm
       jurisdiction over nonresident beneficiaries of a trust, and the court held jurisdiction was proper.
       Peoples Bank, 594 F.2d at 1151-52. In Peoples Bank, the district court had required the joinder
       of two California beneficiaries and then dismissed the action for lack of diversity once the two
       were joined. Peoples Bank, 594 F.2d at 1150. On appeal, the Seventh Circuit stated that, before
       affirming the joinder and dismissal, it had to consider whether plaintiff could bring suit in
       another court. Peoples Bank, 594 F.2d at 1151. The Seventh Circuit upheld the joinder and
       dismissal, only after first concluding that an Illinois state court could exercise long-arm
       jurisdiction over the two California beneficiaries of the trust. The Seventh Circuit stated:
       “Asserting jurisdiction over a nonresident beneficiary to adjudicate claims relating to a trust
       located in Illinois and administered by an Illinois trustee satisfies that requirement [of
       minimum contacts].” Peoples Bank, 594 F.2d at 1152.
¶ 61        With Mullane and Tankersley, Peoples Bank made at least the third federal case after
       International Shoe to permit a forum to assert long-arm jurisdiction over nonresident
       beneficiaries in order to adjudicate claims related to a trust administered in that forum.
¶ 62        The parties also cite and discuss Sullivan v. Kodsi, 359 Ill. App. 3d 1005 (2005), although
       the issue in that case was very different from ours. The trust in Sullivan was administered in
       Illinois and its trustee resided in Illinois, during the time when the fraudulent transfers alleged
       by the plaintiff took place and when the plaintiff filed his lawsuit. Sullivan, 359 Ill. App. 3d at
       1012. However, after the lawsuit began, the trustee was then succeeded by another trustee who
       did not reside in Illinois. Sullivan, 359 Ill. App. 3d at 1007. Thus, the issue in that case was
       whether the predecessor trustee’s acts were sufficient to confer personal jurisdiction over the
       successor nonresident trustee. Sullivan, 359 Ill. App. 3d at 1010. We held that they were,
       reasoning that at the time the successor trustee was appointed, the Illinois litigation was well
       under way. Sullivan, 359 Ill. App. 3d at 1013. “It should have occurred” to the successor
       trustee that the trust “would likely be subjected to the pending litigation.” Sullivan, 359 Ill.
       App. 3d at 1013. Thus, “requiring [the] foreign [successor] trustee to litigate in Illinois” did
       “not offend traditional notions of fair play and substantial justice.” Sullivan, 359 Ill. App. 3d at

          2
           We are abbreviating the case name as Peoples Bank rather than as Hansen, in order to avoid any
       confusion with the United States Supreme Court case of Hanson v. Deckla, 357 U.S. 235 (1958).
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       1013.

¶ 63                                     C. Application to Our Case
¶ 64       The precedent, discussed above, establishes that exercising personal jurisdiction over the
       nonresident beneficiaries in the case at bar comports with federal due process. First, Mullane,
       as a decision of the United States Supreme Court, is binding precedent with respect to federal
       due process, and it squarely holds that a forum state may exercise personal jurisdiction over
       nonresident beneficiaries to a trust administered in the forum state. Mullane, 339 U.S. at 313.
       Although Mullane is over 60 years old, “the Mullane doctrine” still continues to be cited as
       binding precedent for this point of law. E.g., Tankersley, 514 F.2d at 967 n.24 (citing “the
       Mullane doctrine”); Peoples Bank, 594 F.2d at 1152 (subsequent “minimum contacts”
       decisions have “not displace[d] the Supreme Court’s conclusion in [Mullane]”). See also
       Hanson, 357 U.S. at 251-52 (the location of the administration of the trust was a significant
       factor in deciding that a court lacked personal jurisdiction over a nonresident trustee).
¶ 65       Second, although Mullane did not expressly discuss the concept of minimum contacts, at
       least two subsequent federal opinions did and still held that a forum state may assert long-arm
       jurisdiction over nonresident beneficiaries in order to adjudicate claims related to a trust
       administered in that forum. Peoples Bank, 594 F.2d at 1152 (minimum contacts were satisfied
       where a forum state exercised jurisdiction “over a nonresident beneficiary to adjudicate claims
       relating to a trust located in Illinois and administered by an Illinois trustee”); Tankersley, 374
       F. Supp. at 537.
¶ 66       Third, the federal district case of Tankersley is completely on point with our case and, like
       the Seventh Circuit did, we find its reasoning persuasive. Tankersley, 514 F.2d at 967 n.24
       (noting “the trial court’s excellent analysis of the Mullane doctrine” and citing Tankersley, 374
       F. Supp. at 535-37). Almost exactly like our case, the trustees in Tankersley instituted an action
       in Illinois for a declaratory judgment after two nonresident beneficiaries objected to the
       trustees’ proposed management actions. Tankersley, 374 F. Supp. at 531-33. Holding that
       jurisdiction existed over the nonresident defendants, the court stated that they must have
       reasonably anticipated that their interest in the administration of the trust managed by Illinois
       trustees, and their objections to it, would lead to litigation in Illinois and subject them to
       jurisdiction here. Tankersley, 374 F. Supp. at 535.
¶ 67       This same reasoning was echoed in Sullivan, where this court held that “[it] should have
       occurred” to the nonresident trustee that he would likely be subject to litigation in Illinois when
       management decisions by the prior Illinois trustee were already at issue. Sullivan, 359 Ill. App.
       3d at 1013.
¶ 68       Similar to the defendants in Tankersley and Sullivan, it should have occurred to defendants
       in the case at bar–when an Illinois trustee was appointed back in 1983 and when all subsequent
       administration of the trust was then going to occur in Illinois–that they could reasonably be
       drawn into litigation in Illinois if they objected to that Illinois administration. Defendant
       Barbiero states in his affidavit that the trust was administered in New York until 1983 when the
       original trustees resigned and appointed Kaufman, an Illinois resident, as the sole trustee.
       Defendant does not state that he objected to the appointment of Kaufman as sole trustee,
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       although defendant had to realize that the administration of the trust would then likely shift
       from New York to Illinois. At that point, defendant should have expected that, if he voiced
       objections to the Illinois administration of the trust, he would likely be haled into court here.
       With this knowledge, he nonetheless proceeded to object to the Illinois trustee’s proposed
       actions. As a result, the State of Illinois had sufficient minimum contacts with defendant to
       exercise personal jurisdiction over him.
¶ 69       Defendant’s brief poses the following hypothetical: what if Kaufman moved to Alaska?
       Would personal jurisdiction follow Kaufman to Alaska? However, Kaufman has not moved to
       Alaska. He has remained in the same forum since his appointment in 1983. Thus, this
       hypothetical is not before us. On the facts before us, it is reasonable for the State of Illinois to
       exert personal jurisdiction over defendant nonresident beneficiaries.

¶ 70                                       CONCLUSION
¶ 71       For the foregoing reasons, we conclude that the nonresident defendant beneficiaries had
       sufficient minimum contacts with the State of Illinois, such that this State’s exercise of
       personal jurisdiction over them did not offend federal due process. The trial court order to the
       contrary is reversed, and this case is remanded to the trial court for further proceedings
       consistent with this opinion.

¶ 72      Reversed and remanded.




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