Wal-Mart cites appellate court in motion to dismiss $1.39 class action

By Steve Korris | Feb 1, 2006

Wal-Mart has moved to dismiss a claim that it should give change on gift cards, in light of a new decision from the 5th District Appellate Court.

In December, the appeals judges ruled in Harris vs. ChartOne that the voluntary payment doctrine barred a suit over charges for copies of records.

Wal-Mart attorney Jennifer Kingston, of Bryan Cave in St. Louis, relied on the decision in a Jan. 17 motion to dismiss a complaint that shopper Ashley Peach filed in 2004.

"Harris has full application to this case," Kingston wrote in a supporting memorandum to Madison County Circuit Judge Nicholas Byron.

Peach complains that when she presented two $10 gift cards on a purchase of $18.61, the cashier should have given her $1.39.

Peach stated in a deposition that a gift card was the same as cash. Her mother Armettia Peach, who gave the cards to Ashley Peach, said the same in a deposition.

Ashley Peach stated that the card still carried a balance of $1.39.

Wal-Mart moved last February to dismiss, arguing that under the voluntary payment Peach had failed to state a claim.

Peach's attorney, Thomas Maag of the Lakin Law Firm, did not respond to the motion.

Kingston filed her Jan. 17 motion as a supplement to last year's motion. She wrote that Peach asked to delay a hearing until she could respond to the motion.

Kingston wrote that in Harris, the Fifth District upheld retired Madison County Circuit Judge Phillip Kardis in dismissing a claim for recovery of charges for copies of medical records, under the doctrine of voluntary payment.

She wrote that the appeals judges expressed a "universally recognized rule that absent fraud, duress or mistake of fact, money voluntarily paid on a claim of right to the payment cannot be recovered on the ground that the claim was illegal."

She wrote that judges applied the doctrine whether a claim was premised on a contractual relationship or a statutory obligation.

She wrote that they rejected a claim of mistake of fact, finding that invoices described what ChartOne purported to charge.

She wrote that they rejected a claim of duress, finding that duress must amount to compulsion.

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