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                                 Appellate Court                               Date: 2016.12.19
                                                                               11:07:52 -06'00'




                  In re Marriage of DiFiglio, 2016 IL App (3d) 160037



Appellate Court      In re MARRIAGE OF STANISLAWA DIFIGLIO, Petitioner, and
Caption              JAMES DIFIGLIO, Respondent (Stanislawa DiFiglio, Third-Party
                     Plaintiff-Appellee v. David Malmstedt, Third-Party Defendant-
                     Appellant).



District & No.       Third District
                     Docket No. 3-16-0037


Filed                October 19, 2016



Decision Under       Appeal from the Circuit Court of Will County, No. 11-D-2194; the
Review               Hon. Matthew G. Bertani, Judge, presiding.



Judgment             Affirmed.



Counsel on           Gregory B. Jumbeck and Timothy J. Reeb, of Reich, Jumbeck &
Appeal               Stole, LLP, of Joliet, for appellant.

                     Stanislawa DiFiglio, of Hickory Hills, appellee pro se.

                     Joseph P. Glimco III, of Law Office of Joseph Glimco, of Darien, for
                     respondent.



Panel                JUSTICE LYTTON delivered the judgment of the court, with opinion.
                     Justices Carter and McDade concurred in the judgment and opinion.
                                             OPINION

¶1       Petitioner Stanislawa DiFiglio filed a petition for dissolution of marriage against
     respondent James DiFiglio. In the dissolution action, Stanislawa filed a third-party complaint
     against David Malmstedt, James’s brother-in-law and attorney-in-fact, alleging that he owed
     money to the marital estate. Malmstedt filed a motion to dismiss the complaint for lack of
     personal jurisdiction. The trial court denied Malmstedt’s motion. Malmstedt filed a petition
     for leave to appeal the trial court’s denial of his motion to dismiss. We granted Malmstedt’s
     petition for leave to appeal and affirm the trial court’s order.

¶2                                              FACTS
¶3        In 2011, Stanislawa filed a petition for dissolution of marriage against James. The
     following year, James executed an Illinois statutory short form power of attorney for
     property, naming Malmstedt as his attorney-in-fact. In 2013, James sold Buchunter
     Transport, Inc., an Illinois corporation he started during the marriage. Malmstedt participated
     in the sale and received the proceeds from it.
¶4        In October 2014, Malmstedt accompanied James to court for a case management hearing
     in the dissolution action. At the hearing, Malmstedt identified himself as James’s
     “brother-in-law and power of attorney.” He stated that he sees and reviews communications
     that James’s attorney sends to James and “go[es] over” the documents with James.
¶5        Stanislawa filed a petition to join Malmstedt as a third party in the dissolution action,
     alleging “[t]hat as the power of attorney of the estate of JAMES DIFIGLIO, David
     Malmstedt received and dispensed well over $575,000.00 from the sale of a portion of the
     business known as Buchunter Transport, Inc., which was marital property.” The trial court
     held a hearing on the petition. At that hearing, James’s attorney stated that James never
     possessed any funds from the sale of Buchunter Transport, Inc., because Malmstedt received
     all of the funds from the sale of the business. He admitted that the funds were marital
     property. The trial court granted Stanislawa’s petition to join Malmstedt as a third party.
¶6        Stanislawa then filed a third-party complaint against Malmstedt, alleging that he received
     and dispensed with over $575,000 of marital property following the sale of Buchunter
     Transport, Inc. The complaint further alleged that Malmstedt owed a fiduciary duty to James
     and Stanislawa and that he violated his duty by “wrongfully” and “unlawfully” taking funds
     from the marital estate.
¶7        Malmstedt filed a motion to dismiss the third-party complaint “for lack of personal
     jurisdiction.” He asserted that he “is a resident and domiciliary of the State of California and
     has committed no act that would submit him to the personal jurisdiction of the courts of
     Illinois.” He further asserted that “the fiduciary shield doctrine” prevented the court from
     asserting jurisdiction over him based on acts he performed as James’s attorney-in-fact.
¶8        Attached to Malmstedt’s motion was an affidavit in which he averred that since he
     became a resident of California in 1995, he has “never performed business, or engaged in any
     transactions of any significance on [his] own or for [his] own personal behalf or gain, in the
     State of Illinois.” He further averred:
                  “I have never appeared before this Court, as power of attorney to transact the
              affairs of JAMES DIFIGLIO. Rather, on my way to Florida, and at the request of

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               JAMES DIFIGLIO because he was nervous about Court and needed a ride from his
               residential placement in Huntley, Illinois, I appeared to wheel him in and wheel him
               out of the courtroom and never testified or acted in any manner on behalf of JAMES
               DIFIGLIO.”
¶9         Stanislawa filed a response to Malmstedt’s motion to dismiss, asserting that the Illinois
       court had jurisdiction over Malmstedt, pursuant to section 2-209(a)(11) of the Code of Civil
       Procedure (Code), because he breached his fiduciary duties in this state. 735 ILCS
       5/2-209(a)(11) (West 2014) (Illinois courts have jurisdiction over a nonresident defendant in
       an action arising from “[t]he breach of any fiduciary duty within this State”).
¶ 10       The trial court denied Malmstedt’s motion to dismiss, finding that “the Power of Attorney
       entered into between JAMES DIFIGLIO & DAVID MALMSTEDT created a fiduciary duty
       & relationship between DAVID MALMSTEDT & STANISLAWA DIFIGLIO as stated on
       the record by way of Mr. Malmstedt taking control of marital assets in which Stanislawa
       DiFiglio has an interest as stated on Record.”
¶ 11       Malmstedt filed a petition for leave to appeal, pursuant to Illinois Supreme Court Rule
       306(a)(3) (eff. Jan. 1, 2016), contesting the trial court’s denial of his motion to dismiss
       Stanislawa’s third-party complaint. We entered an order allowing Malmstedt’s petition for
       leave to appeal.

¶ 12                                            ANALYSIS
¶ 13        We review the trial court’s ruling denying Malmstedt’s motion to dismiss de novo. Nesby
       v. Country Mutual Insurance Co., 346 Ill. App. 3d 564, 566 (2004). We can affirm the court’s
       decision on any basis supported by the record regardless of the trial court’s reasoning. Guinn
       v. Hoskins Chevrolet, 361 Ill. App. 3d 575, 586 (2005); see CGE Ford Heights, L.L.C. v.
       Miller, 306 Ill. App. 3d 431, 439, 444 (1999) (appellate court affirmed trial court’s dismissal
       of counts of complaint on grounds other than those argued by defendants and relied on by
       trial court).
¶ 14        The plaintiff has the burden to show a valid basis for jurisdiction over a nonresident
       defendant. Poplar Grove State Bank v. Powers, 218 Ill. App. 3d 509, 517 (1991). In meeting
       this burden, there need only be a prima facie showing that jurisdiction exists. Mandalay
       Associates Ltd. Partnership v. Hoffman, 141 Ill. App. 3d 891, 894 (1986). In determining if
       there has been such a showing, a court must accept all well-pleaded allegations in the
       plaintiff’s complaint as true and resolve all factual disputes in the plaintiff’s favor. Id. at
       894-95.
¶ 15        A court has personal jurisdiction over a nonresident defendant where two conditions are
       satisfied: (1) the requirements of the long-arm statute have been met and (2) the exercise of
       jurisdiction over the defendant comports with due process under the Illinois and United
       States Constitutions. Rollins v. Ellwood, 141 Ill. 2d 244, 274-75 (1990). Section 2-209(a) of
       the Code, known as the Illinois long-arm statute, provides in pertinent part:
               “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 *** to the jurisdiction of the courts of this State as to any cause of action
               arising from the doing of any of such acts:
                                                   ***


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                    (10) The acquisition of ownership, possession or control of any asset or thing of
                value present within this State when ownership, possession or control was
                acquired[.]” 735 ILCS 5/2-209(a)(10) (West 2014).
       “[T]he plain meaning of section 2-209(a)(10) is that, for purposes of in personam
       jurisdiction, the asset or thing of value involved must have been present in the State when the
       defendant acquired his ‘ownership, possession or control’ of it.” Powers, 218 Ill. App. 3d at
       520.
¶ 16        The plaintiff must show that the defendant committed an act or acts satisfying one of the
       criteria of the long-arm statute and that the plaintiff’s cause of action arose from such acts.
       Id. at 517. This requirement has been liberally construed by Illinois courts in favor of the
       party asserting jurisdiction. Hoffman, 141 Ill. App. 3d at 896. Its purpose is to insure that
       there is a relationship between a cause of action against a nonresident defendant and his
       jurisdictional activities. Id. at 896-97.
¶ 17        The exercise of jurisdiction over the defendant is consistent with due process if the
       nonresident defendant has “certain minimum contacts” with the forum state. Id. at 897.
       “[T]his requirement is satisfied if there is ‘some act by which the defendant purposefully
       avails itself of the privilege of conducting activities within the forum State ***.’ ” Id.
       (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
¶ 18        Where the defendant makes trips to Illinois, obtains property, including money, from
       Illinois residents, and remains in continual communication with Illinois residents, the
       minimum contacts requirement is satisfied. See id. “Illinois has a ‘manifest interest’ in
       providing its residents *** with a convenient forum for redressing injuries allegedly inflicted
       by out-of-state actors.” Id. at 898.
¶ 19        Here, Malmstedt obtained possession and control of the proceeds of the sale of Buchunter
       Transport, Inc., while they were in Illinois. Those proceeds are the subject matter of
       Stanislawa’s third-party action against Malmstedt: Stanislawa claims that Malmstedt
       wrongfully took possession and control of those funds. Because Malmstedt acquired
       possession and control of the assets in Illinois, and Stanislawa’s cause of action against
       Malmstedt arose from his possession and control of those funds, the trial court had
       jurisdiction over Malmstedt, pursuant to section 2-209(a)(10) of the Illinois long-arm statute.
       See 735 ILCS 5/2-209(a)(10) (West 2014) (Illinois court has jurisdiction over any defendant
       in a cause of action arising from “[t]he acquisition of ownership, possession or control of any
       asset or thing of value present within this State when ownership, possession or control was
       acquired”); see also Brown v. Refuel America, Inc., 652 S.E.2d 389, 393 (N.C. Ct. App. 2007)
       (North Carolina had personal jurisdiction over defendant who accepted checks in North
       Carolina based on provision of state’s long-arm statute authorizing the state to exercise
       personal jurisdiction over a nonresident defendant when the plaintiff’s cause of action arises
       from “[a] claim that the defendant return, restore, or account to the plaintiff for any asset or
       thing of value which was within this State at the time the defendant acquired possession or
       control over it”); Norton v. Bridges, 712 F.2d 1156, 1164 (7th Cir. 1983) (Wisconsin had
       personal jurisdiction over trustee who took control of assets located in Wisconsin pursuant to
       Wisconsin long-arm statute that permits an assertion of personal jurisdiction in any action
       that arises out of “[a] claim that the defendant return, restore, or account to the plaintiff for
       any asset or thing of value which was within this state at the time the defendant acquired
       possession or control over it”).

                                                   -4-
¶ 20       Furthermore, Illinois’s assertion of jurisdiction over Malmstedt comports with the due
       process clauses of the Illinois and federal constitutions because Malmstedt had sufficient
       minimum contacts with Illinois. The record establishes that Malmstedt traveled to Illinois at
       least two times in 2013 and 2014: once for the sale of Buchunter Transport, Inc., and once
       when he appeared in court with James. The record also shows that Malmstedt kept in regular
       communication with James, an Illinois resident, reviewing correspondence James’s attorney
       sent to James and explaining it to James. Finally, Malmstedt acted as James’s attorney-in-fact
       pursuant to a power of attorney that was drafted in accordance with Illinois law and executed
       in Illinois. Malmstedt’s numerous contacts with Illinois establish that he purposefully availed
       himself to the privilege of conducting activities in this state. See Hoffman, 141 Ill. App. 3d at
       897.

¶ 21      Affirmed.




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