Using a summary judgment motion to avoid a trial is not appropriate, say the defendants in a St. Clair County class action suit that was certified last year by Circuit Judge Lloyd Cueto.
Taylorville Chiropractic Clinic and Philip S. Dudak responded to plaintiff Mixon Insurance Agency's motion for summary judgment on April 13, stating the case should be decided by a jury.
"The plaintiff's motion attempts to sidestep the burden for summary judgment," wrote defense attorneys Michael Bedesky and Leslie M. Warren of Reed, Armstrong, Gorman, Mudge & Morrissey.
The defendants further argue that summary judgment should not be granted when reasonable persons could draw different inferences from facts.
"The plaintiff's evidence consists of expert testimony, a hard drive and one fax to East St. Louis," their response states. "The plaintiff's expert testimony is contracted by the defendant's expert testimony. A reasonable person could infer the hard drive is unreliable. The fax to East St. Louis was sent without the defendant's knowledge. The issues presented by the plaintiff for summary judgment are to be resolved by the jury."
The Granite City chiropractic clinic and its owner, Dudak, were sued in 2009 over claims they violated the federal Telephone Consumer Protection Act (TCPA) by sending unsolicited fax advertisements.
Because Mixon and at least 39 other businesses allegedly received the unsolicited faxes, they claim they momentarily lost the use of their fax machines and were required to use ink toner and paper. In addition, they claim employees wasted their time to get faxes when they could have been doing something else.
Mixon Insurance is represented by Robert J. Sprague of Sprague and Urban in Belleville, Brian J. Wanca of Anderston - Wanca in Rolling Meadows and Phillip A. Bock of Bock and Hatch in Chicago.
Cueto certified the case Aug. 8, 2011.
In their response to Mixon's motion for summary judgment, the defendants also state they did not know of any law prohibiting fax advertising.
Dudak states that he paid the company "Business to Business Solutions" $272 in September 2006 so that "BTB" would fax advertisements about his chiropractic services in Granite City and Madison County.
Mixon claims BTB faxed 4,631 of Dudak's advertisement in September and October 2006.
Last September, Cueto approved that a class notice could be distributed by fax.
St. Clair County Circuit Court Case number: 09-L-509.