Plaintiff opposes venue change, files to amend Collinsville funeral home dispute

Amelia Flood Aug. 27, 2009, 4:42am

The plaintiff and counter claim defendant in a St. Clair County funeral home dispute is arguing that the defendants have not made a case to move the suit as they've requested to neighboring Madison County.

The case, involving an employment clause and mutual allegations of financial wrongdoing against Herr Funeral Home, is set for a motion hearing on the venue issue Sept. 16 at 10 a.m.

The plaintiff, former Herr Funeral Homes manager Barry Wilson, also filed for leave to amend his complaint Aug. 10 and an answer to the defendant's counter claim Aug. 11. The defendants, the funeral home's owners, moved to transfer the case due to inconvenient venue.

Wilson is suing his long-time employers to get a non-complete employment clause lifted as well as for damages in excess of $50,000 along with costs and attorneys' fees. Wilson, who also holds shares in Herr Funeral Homes Ltd., alleges that the clause should not apply because he was terminated without cause in 1999 and that the actions of the home's owners, Robert and Judith Herr, constituted a breach of their fiduciary responsibility.

On Aug. 10, Wilson filed for leave to amend his complaint to include a count of violation of the Wage Payment Act against the couple and the company. Wilson alleges, among other things, that the funeral home paid Judith Herr a "substantial salary" and 401-K match when she did not perform work for the home and that the company placed the Herrs' daughter and son-in-law on the company's health plan improperly.

The Herrs have a filed a counter complaint against Wilson for misuse of the company credit cards for allegedly charging items like "Yoga for Beginners" and "Bud Light Lime" at various Wal-Mart stores and for fraudulent misrepresentation for opening cards at other stores while employed by Herr. They claim the charges total about $12,000 and that Wilson breached his fiduciary responsibility.

The Herrs denied the charges in Wilson's suit and claimed their business decisions were protected by the business judgment rule and by Wilson's waiver.

In the motion to transfer the case, the Herrs argue that Madison County has a "greater connection" to the case than St. Clair County and that unidentified witnesses and documents are to be found in Madison County.

In the Aug. 11 response to the transfer motion, the plaintiff argues that the "[d]efendants have skipped the requirement of inconvenience and are simply arguing that they think Madison County is more convenient."

St. Clair Circuit Judge Michael O'Malley is presiding.

Wilson is represented by Jill Rembusch of St. Louis.

The Herrs and their funeral home are represented by Christopher Byron, Meredith Head and Brian Kalb of Edwardsville.

The case is St. Clair case number 09-L-345.

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