MOUNT VERNON – If Fifth District appellate judges clear the way, Madison County Circuit Judge Daniel Stack can proceed with a trial that could make money for the state – the state of Missouri, that is.
A Missouri law that Stack intends to apply in a suit against Home Depot allows courts to award punitive damages, split 50-50 between victims and the state of Missouri.
Home Depot could not persuade Stack that the suit belonged in Missouri, so on Feb. 8 Home Depot attorney Dwight Davis of Atlanta tried to persuade appellate judges.
In oral arguments at the Fifth District, Davis said the Missouri Merchandising Act specifies that consumers with fraud claims can sue in Missouri circuit courts.
He said Missouri law provides jury trial on consumer claims, and Illinois does not.
"Generally the attorney general would bring this action," Davis said. "You are now thwarting a legislative pattern that you have in Missouri."
Plaintiff attorney Gail Renshaw of the Lakin Law Firm responded that, "This is a venue provision and venue is indeed procedural."
Justice Stephen Spomer said, "If venue is procedural but the rest is substantive, and the court applies substantive law, wouldn't a jury trial be substantive?"
Renshaw said, "I can't answer that."
Spomer asked if the justices wouldn't have to hear appeals of future decisions on a jury, punitive damages and so on.
Renshaw said, "I can't answer that."
The Lakin firm filed the suit in 2002 for Madison County resident Janet Chochorowski.
She rented a tiller for $25 at Home Depot in Brentwood, Mo. She claimed the store improperly charged a 10 percent damage waiver fee of $2.50.
She proposed a class action under the Illinois Consumer Fraud Act and similar laws of other states.
The claim weakened in 2005, when the Illinois Supreme Court threw out a Williamson County verdict in Avery v. State Farm.
The Supreme Court declared that the Illinois Consumer Fraud Act applied only to transactions in Illinois.
The Lakin firm amended Chochorowski's complaint, dropping her claim under Illinois law and initiating a claim under Missouri law.
Home Depot moved to dismiss on the doctrine of forum non conveniens, arguing that Chochorowski should sue in Missouri.
At a hearing before Stack last May, Richard Burke of the Lakin firm said, "The Missouri act is the same as the Illinois act."
"These are uniform acts," he said. "They prohibit deception, misrepresentation, unfair practices."
Stack denied Home Depot's motion.
For Home Depot, Michael Nester of Belleville appealed in June.
Nester wrote, "Because plaintiff chose to shop in Missouri, she cannot claim it would be inconvenient to litigate there."
Phillip Bock of Chicago, an associate in many Lakin suits, answered in October that Illinois venue rules applied.
"Home Depot made absolutely no effort to determine if ten percent reflected an accurate assessment of the value of the coverage or the expected losses that it might incur by offering the coverage," Bock wrote.
In oral argument for the Lakin firm, Renshaw said it was incorrect that no court but a Missouri court could apply the law.
Spomer asked her if Missouri law applied.
Renshaw said it applied to Chochorwowski's claim. She said other statutes might apply if the case were certified as a class action.
Spomer asked if there would be a split of punitive damages.
Renshaw said, "I am not so sure that's correct." If so, she said, the court could come up with a solution."
Spomer said, "You concede Missouri law would apply?"
Renshaw said, "That is an issue that needs to be further explored. Is that procedural or substantial?"
Spomer said, "You can't cherry pick which portions of Missouri law you want to apply, can you?"
Renshaw said, "I don't think I've explored that part of the case that well."
She said Home Depot charged $3,820,626 in damage waivers on 900,000 rentals in Illinois in three years.
Davis said Chochorowski drove to Missouri.
Justice Bruce Stewart said, "Do many Madison County people go to St. Louis to shop?"
Davis said, "There is a Home Depot right there in Madison County."
He said, "She went to another state and she is suing under a very specialized statute of that state."
Spomer said that was all. He added that he thought they needed a plaintiff who bought in Illinois.