Ann Maher Nov. 20, 2014, 11:57am

The Fifth District Appellate Court has instructed St. Clair County Circuit Judge Vincent Lopinot to explain why he denied defense motions to transfer a lawsuit to a jurisdiction where the plaintiffs and the subject of the litigation - an allegedly odorous pig farm - are located.

"Because the circuit court failed to include in its decision its analysis or findings regarding the forum non conveniens factors, we remand the cause to the circuit court to make findings on its analysis of the factors," wrote Justice Gene Schwarm in a Rule 23 decision posted Nov. 12.

The Macoupin County neighbors of a 4,500-swine farm named Fragrant 40 say they are unable to host family gatherings and sleep in their home because of the smell emanating from the farm.

Joe Clark, Megan Clark, Bob Norris and Tom Gall filed the suit in February 2012, against defendants Fragrant 40, Jeff Seabaugh, Alan Investments, Silver Creek Pig, Dykhuis Farms and Tosh Pork.

In their complaint, the plaintiffs allege that the defendants intentionally, negligently, and improperly disregarded duties for the proper handling and storage of animal manure and urine, the maintenance of lagoons, and the burial and burning of dead swine, thereby subjecting them to frequent additional odor and particulate matter, discharges of hog manure and urine, and other emissions and pests.

In motions to transfer on grounds of forum non conveniens, defendants argued that they did not conduct any business in St. Clair County.

The four plaintiffs and the farm also are all located in Macoupin County, they argued.

The only connection to St. Clair County had been Fragrant 40's registered agent Ronald Seabaugh, who resides in St. Clair County, the court record shows. However, Ronald Seabaugh was dismissed from the suit because he no longer served as the farm's agent.

Lopinot heard transfer arguments on Oct. 30, 2013, and took the matter under advisement. On Dec. 9, 2013, he denied the motions to transfer, but did not include a forum non conveniens analysis or findings in its decision, the appellate court decision states.

Schwarm wrote that in resolving forum non conveniens questions, the trial judge must balance private interest factors affecting the convenience of the parties and public interest factors affecting the administration of the courts.

He wrote that when weighing all factors, the court may not emphasize one factor over another "but instead must consider the totality of the circumstances."

"In its written order, the circuit court here failed to include analysis or findings regarding the private and public-interest factors involved in a forum non conveniens analysis, nor did it address the factors at the hearing," Schwarm wrote.

"Indeed, the record on appeal is devoid of analysis or findings by the circuit court regarding the forum non conveniens factors. The circuit court's exercise of its discretion cannot be reviewed adequately when the forum non conveniens factors are not included in the analysis."

The Fifth District vacated the judgment and remanded the cause with directions for Lopinot to enter into the record express findings regarding the forum non conveniens factors.

Gregory Shevlin of Cook Ysursa, Bartholomew, Brauer and Shevlin in Belleville represents the plaintiffs.

In addition to Shevlin, Richard H. Middleton Jr. of The Middleton Firm in Savannah, Ga.; and Charles F. Speer of Speer Law Firm in Kansas City, Mo., represent the plaintiffs.

Peter Naylor and Claire Manning of Brown, Hay & Stephens in Springfield are lead defense counsel.

Mark Goldenberg and Holly Reese of Goldenberg Heller Antognoli & Rolland in Edwardsville also represent Fragrant 40 and Seabaugh.

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