MADISON - ST. CLAIR RECORD

The Lakin Law Firm filed an appeal with the Fifth Appellate District claiming former Circuit Judge Don Weber erred when dismissing a class action lawsuit against H&R Block on Nov. 9.

In the notice of appeal dated Dec. 8, the Lakin firm asks the appellate court to reverse and remand the case back to Madison County for trial on all issues and for any relief previously prayed for in the circuit court.

The Lakin firm claimed H&R Block unfairly charged a fee for electronically filing customers' tax returns.

"Caveat Emptor--Let the buyer beware," Weber wrote in the order dismissing the suit. "Each plaintiff could have accepted the requirement of e-filing or rejected it. As long as the fee was disclosed and as long as it was not clearly unreasonable, there can be no claim of deception or unfairness in the transaction."

Madison County resident Lori Marshall claimed she was "victimized" by the company's deceptive practice because she placed her trust in H&R Block's superior knowledge of tax preparation.

The electronic filing fee ranged from $10 to more than $30, according to the suit filed in 2003.

"H&R Block fails to inform customers that tax returns could be filed for free using an IRS program, or for the mere price of a stamp," according to the suit.

"Instead, H&R Block deceptively sells this free service under the guise that it is an exclusive and unique service offered by H&R Block," the complaint stated. "H&R Block likewise attempts to increase profits by cramming charges for electronic filing fees onto the bills of unsuspecting clients."

Marshall alleged the acts and omissions of H&R Block constituted breach of contract, unjust enrichment, breach of fiduciary duty, and violated the Illinois Consumer Fraud and Deceptive Business Act.

In dismissing the breach of fiduciary count, Weber wrote that the transactions in question were not governed by "the heightened duties required under a fiduciary duty transaction."

"If the preparation of the tax return were in question, the Court might reach a different result," he wrote. "...the filing of the return, whether by mail or electronically, does not impose any heightened degree of responsibility on the part of the preparer. It is common knowledge and common sense that tax returns may be filed by mail."

Weber also found there was no unjust enrichment on the part of H&R Block in retaining a fee for e-filing plaintiffs' tax returns. Plaintiffs took advantage of a program whereby they would receive their refunds early, which was a separate agreement apart from their tax preparation.

"The separate agreements require the plaintiffs, as a condition of the contracts, to e-file their returns," Weber wrote. "Due to the existence of these separate agreements, which require e-filing, the Court finds that there is no unjust enrichment. This is particularly true since the e-filing fees were disclosed to the plaintiffs at the time their returns and the other agreements were completed."

Weber dismissed the breach of contract allegation stating that plaintiffs "availed" themselves to the e-filing charges in order to receive their refunds sooner.

"Even given that the allegations of the complaint are taken as true, the Court cannot conclude that any facts could be proven that would now allow plaintiffs to complain that the e-filing fee ($31 or $10) was unfair or fraudulent," Weber wrote.

Marshall and members of the class had sought to rescind their contracts and to be reimbursed from the profits and proceeds generated from the charges.

H&R Block was represented by Larry Hepler of Edwardsville.

Gail Renshaw, Daniel Cohen, Brad Lakin and Richard Burke will handle the appeal.