Jeffrey Millar

James Donovan

Alan Dixon

A class action lawsuit against DaimlerChrysler and Enterprise Rent-a-Car will remain in Madison County, according to an Illinois Appellate Court ruling handed down today.

In a lawsuit filed in February 2004, Ralph Kern and Alan Lewis allege the defendants failed to make public disclosures about widespread failures of 2.7-liter engines in vehicles manufactured by Chrysler. They are seeking compensatory damages for consumer fraud and common law fraud.

Represented by Jeffrey Millar and Thomas Maag (formerly) of the Lakin Law Firm, Kern and Lewis alleged that venue was proper in Madison County because Enterprise Midwest is a resident of the county and part of the transactions out of which the causes of action arose had occurred in the county.

Maag has since left the Lakin Firm and now works for Wendler and Ezra in Collinsville.

The case was originally assigned to former Circuit Judge George Moran, who retired abruptly in February.

On April 21, 2004, Enterprise Midwest filed a motion to dismiss the case, or in the alternative, transfer venue on the grounds that it does not do business in Madison County, that it did not sell a vehicle to any of the plaintiffs, and that it did not have a business relationship with any of the plaintiffs.

The next day, Chrysler filed a special and limited appearance and moved to transfer the action to Sangamon County alleging that Madison County was an improper venue because neither defendant was a resident of the county for venue purposes, and because no part of the transactions had occurred in Madison County.

On May 12, 2004, Kern and Lewis filed a motion seeking leave to file a second amended complaint to add Enterprise St. Louis as a defendant in place of Enterprise Midwest, alleging that it had inadvertently misidentified the proper Enterprise entity.

The allegations made against Enterprise St. Louis were the same as those made against Enterprise Midwest.

On May 24, 2004, plaintiffs filed a motion for substitution of judge as a matter of right.

Moran granted the motion to amend the complaint on June 9, 2004, and also granted the motion for substitution.

The case was reassigned to Circuit Judge Andy Matoesian.

On June 24, 2004, DaimlerChrysler filed an objection to Moran's order granting the plaintiffs leave to amend, claiming it did not have adequate notice and an opportunity to be heard on the motion, and that the order granting leave to file the second amended complaint was void because a proper and timely filed motion for a substitution of judge was pending at the time leave to amend was granted.

DaimlerChrysler also argued that the trial court was required to rule on its venue motion before considering any other substantive matter, including the plaintiffs' motion to amend the complaint.

On July 20, 2004, Enterprise St. Louis filed its answer to the second amended complaint.

In its answer, Enterprise St. Louis admitted that its principal place of business is in Missouri and that it maintains branch offices in Madison County.

On August 6, 2004, Enterprise St. Louis filed verified responses to the plaintiffs' requests for admissions.

Matoesian held a hearing on Aug. 18, 2004, ruling, "In light of the court granting Plaintiffs' motion for leave to file an amended complaint, the court denies DaimlerChrysler's motion to transfer venue as moot."

On appeal, DaimlerChrysler claimed that the trial court erred in failing to consider and grant its motion to transfer venue before considering the plaintiffs' motion to amend the complaint.

Writing the opinion for the appellate court, Justice James Donovan writes, "According to the record in this case, the plaintiffs sought leave to file an amended complaint shortly after learning that they had inadvertently sued the wrong Enterprise entity due to a mistake in its identity.

"Enterprise St. Louis's admission that it is a resident of Madison County for purposes of venue shows that granting leave to amend the complaint would cure a defect in the pleadings. There is no indication that Chrysler had attempted to call up its motion for a change of venue at any time prior to Judge Moran's ruling on the plaintiffs' motion to amend. Chrysler's objections to the plaintiffs' motion came only after and in response to Judge Moran's order granting leave to amend."

"…we concluded that the trial court had the discretion to determine whether to consider the plaintiffs' motion for leave to amend before considering Chrysler's venue motion. Based on this record, we cannot say that the trial court abused its discretion in ruling on the motion to amend before considering the venue motion."

"Earlier in this decision, we noted that Chrysler had not established that it was prejudiced by the trial court's decision to consider the plaintiffs' motion to amend prior to considering its motion to transfer venue. Had the trial court considered Chrysler's venue motion first, it would have had to find that venue was improper under both the residency prong and the transaction prong of section 2-101 in order to sustain the motion."

"The record shows that the question of whether any part of the alleged transactions arose in Madison County was a contested factual matter which was never ruled on by the trial court. And while Chrysler has suggested on appeal that Enterprise Midwest and Enterprise St. Louis were not joined in good faith and were sued solely for purposes of fixing venue in Madison County, it did not obtain a ruling in the trial court on this contention. We cannot speculate on how the trial court would have decided these specific challenges to venue had it been asked to consider them."

"In summary, we conclude that the trial court had the discretion to decide whether it would hear and rule on the plaintiffs' motion for leave to amend the complaint prior to considering Chrysler's motion to transfer venue and that the trial court did not abuse its discretion in granting the plaintiffs' motion for leave to amend. We reject Chrysler's contention that a trial court must decide a timely filed motion to transfer venue under section 2-104 prior to any other substantive motion."

Presiding Justice Stephen Spomer and Justice Stephen McGlynn concurred in the case.

Chrysler was represented by Alan Dixon, (former U.S. Senator from Illinois), Ann Covington, Kathy Wisniewski and John W. Rogers of Bryan Cave in St. Louis.

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