Stack foils Maag's strategy for keeping truckers in Madison County

Steve Korris Jun. 13, 2008, 7:00am



Attorney Thomas Maag of Edwardsville keeps trying to outfox Madison County Circuit Judge Daniel Stack, and Stack keeps frustrating Maag's designs.

At two hearings on June 4, Stack ruled against Maag in suits seeking damages for injuries that truckers claimed they suffered while hauling cars.

At one hearing, Stack refused to reinstate a case he dismissed so Maag could refile it in Tennessee, where the trucker lived and the injury occurred.

Maag refiled it in Georgia rather than Tennessee, as a strategy to bring it back to Madison County.

Stack foiled the strategy and invited Maag to appeal.

At the other hearing, Stack dismissed Maag's claim that Cassens Transport of Edwardsville owed damages to client Keith Yount for scrapping a trailer he drove.

Maag accused Cassens Transport of spoliation of evidence, but Stack couldn't figure out how the trailer counted as evidence and Maag couldn't tell him.

Maag argued in tandem with his brother Peter Maag, who had not previously appeared as his brother's associate in trucker suits.

For Cassens Transport, William Knapp said Yount alleged that an idler broke because a weld attaching it to the trailer was faulty.

"The allegation is not that the idler broke but it came loose from the trailer?" Stack said.

Knapp said, "Came loose, right."

Dan Ball, defense counsel for Georgia trailer maker Cottrell Inc., said, "It sticks out like this and it broke off."

Stack said, "Which is it? Is it alleged that this thing broke in two or that it just came loose?"

Ball said it broke at the weld.

"At the weld," Stack said. "So it's the attachment that broke?"

Ball and Knapp both said, "Right."

Knapp said Yount kept the idler and gave it to his attorneys.

He said Stack temporarily transferred custody to defendants so they could examine it in preparing their defenses.

"The trailer itself is not an issue in the case," Knapp said.

"The issue in this case is the idler and the weld point of the idler to the trailer."

Stack asked if any expert examined the idler and said they couldn't tell anything about it without seeing the trailer.

Knapp said, "I am not aware of any."

Thomas Maag said, "Judge, I don't think this is a summary judgment motion."

Stack said, "I didn't ask that. I was just asking, does anybody think that this trailer needs to be inspected?"

Maag said, "Not that I am aware of."

Stack told Maag his spoliation counts were not appropriate.

"If they ever claim that the trailer has to be examined, then you have got a spoliation count," Stack said.

Peter Maag persisted, arguing that Cassens Transport imposed on itself a duty to preserve the trailer.

He said Dwight Kay of Cassens Transport said in a deposition that, "When there is an injury involved we keep the piece of

Stack said, "Until somebody can show that this trailer is going to be an issue, I don't think you have got a spoliation claim."

Peter Maag said, "My understanding is that the idler itself is welded on to the trailer.

"If it broke off, I mean it could be something about the idler. It could be something about the weld."

Stack said, "That is why I specifically asked the question, if it broke off at the weld or whether the arm itself broke in two."

Thomas Maag said, "It broke off at the weld."

Stack said, "It still sounds to me like you are not going to need this trailer."

Ball changed the subject to a motion from Cottrell for mediation.

Stack asked if anyone objected.

Thomas Maag said he wanted discovery before mediation.

Stack told him to try mediation and go to discovery if he couldn't get mediation done.

Thomas Maag said, "Except we can't do it without the discovery."

Ball said, "Yes, you can. You know that it's not our idler.

"All that's going to come out of these depositions is we're going to say it's not our idler and the weld wasn't good.

"You can verify that independently, cheaply, before we spend thousands of dollars going to Georgia on money that might go
into the pot on settlement."

Ball asked for 90 days.

Maag said, "I object."

Stack said, "Overruled."

Ball said, "He objects and chuckles."

Knapp said he wanted the order to reflect that Cassens Transport was under no obligation to respond to discovery requests.

Stack said, "Once you have been dismissed out, you are done."

Pick within the rules

At the other hearing, on a claim Gary Clark of Tennessee filed against Cottrell Inc. and Cassens defendants, Thomas Maag carried on
without his brother.

In that case, Stack had dismissed some Cassens defendants and granted a motion from Cottrell to send the case to a more convenient forum.

Stack recommended Tennessee.

Maag appealed the order to the Fifth District appeals court in Mount Vernon.

Next he refiled Clark's suit in Hall County, Georgia, where Cottrell does business.

Then he asked Stack to reinstate the Madison County suit.

At the hearing, Ball told Stack he lacked jurisdiction while the appeal remained pending at the Fifth District.

Maag said the appeal only deprived Stack of jurisdiction to enter an order inconsistent with the issues on appeal.

He said that in a transfer, if the court in the other forum refuses jurisdiction the plaintiff may reinstate the action where dismissal was granted.

"This is the court where the dismissal was granted," Maag said.

Stack said he had jurisdiction to hear this particular motion only.

Ball said, "There is nothing in there that says once you dismiss a case for forum non conveniens, the plaintiff can go anywhere."

Stack asked if the Georgia court refused jurisdiction.

Ball said, "All that has happened down there is the parties have entered appearance and there hasn't been any ruling."

Sara Finan, for Cassens Corporation, said, "We have not accepted service in Georgia."

She said Stack granted her client summary judgment in advance of the forum order.

Maag said Rule 187 doesn't address where to file a suit after it has been dismissed for forum non conveniens.

"I think that's right," Stack said. "You can file it wherever you want."

He said Maag gets to refile in Madison County only if the Georgia court refuses jurisdiction and he added, "So far that has not happened."

Maag said Finan was probably right that Cassens Corporation is not subject to personal jurisdiction in Georgia.

"They are also not subject to jurisdiction, probably, in Tennessee," he said.

Stack said, "They were already dismissed out of this case, weren't they?"

Maag said, "That is the problem."

He said Stack did not certify his order as a final judgment.

Ball said, "You have appealed it."

Maag said, "What choice did I have? "They are still a party to this case."

Ball told Stack, "This is the problem with asking you to deal with things that are now in the court of appeals."

Stack said, "The motion is denied. You can take this to the court of appeals too."

Maag asked him to reconsider.

Ball told Maag, "If you lose in Georgia, then you go to Tennessee which is where nobody is challenging venue. You are just wanting to pick and you can pick but you can only pick within the rules."

Stack said he would stick with his ruling.

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