Chochorowski v. Home Depot

NO. 5-06-0308
NOTICE
Decision filed 09/21/07. The text of
IN THE
this decision may be changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
Peti tion for Rehearing or th e
disposition of the same.
FIFTH DISTRICT
___________________________________________________________________________
JANET CHOCHOROWSKI, Individually and ) Appeal from the
on Behalf of Others Similarly Situated, ) Circuit Court of
) Madison County.
Plaintiff-Appellee, )
)
v. ) No. 02-L-906
)
HOM E DEPOT U.S.A., INC., d/b/a The )
Home Depot, ) Honorable
) Daniel J. Stack,
Defendant-Appellant. ) Judge, presiding.
__________________________________________________________________________
JUSTICE SPOM ER delivered the opinion of the court:
The defendant, Home Depot U.S.A., Inc., doing business as The Home Depot (Home
Depot), appeals the May 22, 2006, order of the circuit court of Madison County that denied
its motion to dismiss on the basis of forum non conveniens. Home Depot raises two issues
on appeal, which we restate as follows: (1) whether the circuit court erred in its
determination that a claim under the Missouri Merchandising Practices Act (Mo. Ann. Stat.
§407.025 (West 2004)) may be pursued in Illinois and (2) whether the circuit court erred in
its determination that the relevant private- and public-interest factors did not strongly favor
a Missouri forum.
On June 22, 2007, we issued an opinion in this case in which we reversed the order
of the circuit court that denied Home Depot's motion to dismiss. On July 16, 2007, the
plaintiff filed a petition for rehearing. On July 19, 2007, we granted the plaintiff's petition
for rehearing. Upon rehearing, and for the reasons set forth below, we find that the only
issue over which we have jurisdiction in this appeal pursuant to Illinois Supreme Court Rule
1
306 (210 Ill. 2d R. 306) is whether the circuit court erred in its determination that the
relevant private- and public-interest factors did not strongly favor a Missouri forum. After
considering the forum non conveniens arguments, we reverse the order of the circuit court
and remand with directions for the circuit court to dismiss this action, and we further
provide, pursuant to Illinois Supreme Court Rule 187(c) (134 Ill. 2d R. 187(c)(2)), that if the
plaintiff elects to file the action in another forum within six months of the dismissal, the
defendant shall accept the service of process and shall waive a statute-of-limitations defense
in the other forum, and the cause of action will be reinstated for further proceedings in the
circuit court of Madison County should the defendant refuse to abide by these conditions.
The facts necessary for our disposition of this appeal on rehearing are as follows. On
June 22, 2002, the plaintiff, Janet Chochorowski, individually and on behalf of others
similarly situated, filed a class action complaint against Home Depot in the circuit court of
Madison County. The complaint alleged that on April 27, 2002, the plaintiff, a resident of
Madison County, rented a power tiller from Home Depot in Brentwood, Missouri, for an
agreed price of $25 per day, plus "applicable sales and rental taxes." The Home Depot
computer generated an invoice, which automatically charged the plaintiff $2.50 for a
"damage waiver," although the plaintiff had never requested or agreed to purchase a "damage
waiver" and was not told that the "damage waiver" was an optional charge. When the
plaintiff returned the power tiller, she paid the invoice in full. The complaint further alleged
that Home Depot routinely and systematically charges the "damage waiver" charge to every
rental customer and uniformly fails to inform customers that the "damage waiver" is an
optional charge and not a part of the "applicable sales and rental taxes" that the customer is
required to pay. Count I of the complaint alleged a cause of action for breach of contract,
and count II alleged "statutory fraud" without citing the specific statutory provision under
which it asserted a cause of action. The plaintiff later filed a first amended class action
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complaint that alleged unjust enrichment under count III.
By an order dated June 10, 2003, the circuit court dismissed counts I and III of the
first amended complaint with prejudice, leaving count II, for "statutory fraud," as the only
remaining claim. On January 30, 2004, Home Depot filed a motion for a summary judgment,
arguing, inter alia, that the Illinois Consumer Fraud and Deceptive Business Practices Act
(815 ILCS 505/1 et seq. (West 2002)) does not apply to transactions that take place outside
Illinois. On May 4, 2005, the circuit court denied Home Depot's motion for a summary
judgment. On August 30, 2005, Home Depot filed a motion for clarification and/or
reconsideration, citing Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d
100, 185 (2005), in which the Illinois Supreme Court unequivocally held that the Illinois
Consumer Fraud and Deceptive Business Practices Act does not apply to fraudulent
transactions that take place outside Illinois. Thereafter, the plaintiff filed a motion for leave
to amend by interlineation to allege a cause of action under the Missouri Merchandising
Practices Act (Mo. Ann. Stat. §407.025 (West 2004)). The circuit court granted the motion
to amend on January 27, 2006.
On or about May 8, 2006, Home Depot filed a motion to dismiss on the basis of forum
non conveniens. Home Depot attached to the motion the transcript of the plaintiff's
deposition, in which the plaintiff testified that the entire transaction at issue had taken place
in Missouri. Home Depot argued that, other than the plaintiff, all the witnesses were either
Home Depot employees who resided in Missouri or in the store service center in Atlanta,
Georgia. Additionally, Home Depot pointed out that all the documentary evidence was
located in either Missouri or Georgia.
On May 22, 2006, after briefing by the parties, oral argument was held on the motion
to dismiss. At the hearing, in addition to arguing that the relevant private- and public-interest
factors favored a dismissal of the action in favor of a Missouri forum, Home Depot argued
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that, because the Missouri statute provides for a private right of action either in the circuit
court of the county in which the seller or lessor resides or in the circuit court of the county
in which the transaction complained of took place (Mo. Ann. Stat. §407.025(1) (West
2004)), and a corporation is only a resident of the county in which it has its registered agent
(Mo. Ann. Stat. §508.010(5)(1) (West 2004)), a dismissal of the action was required.
In response to Home Depot's arguments, the plaintiff argued that the motion to dismiss
was untimely because it was not filed until four years after the action had commenced. In
addition, the plaintiff argued that the factors cited by the defendant did not outweigh the
plaintiff's choice to bring this action in her county of residence and that an Illinois court
could apply the Missouri statute because the venue provision of that statute is a procedural
provision and because the language was permissive because it stated that "[a]ny person ***
may bring a private civil action" (emphasis added) (Mo. Ann. Stat. §407.025(1) (West 2004))
in those counties previously stated. The circuit court denied Home Depot's motion to
dismiss. Home Depot filed a timely notice of interlocutory appeal pursuant to Illinois
Supreme Court Rule 306(a)(2) (210 Ill. 2d R. 306(a)(2)).
Home Depot's first issue on appeal is whether the circuit court erred in its
determination that a claim under the Missouri statute (Mo. Ann. Stat. §407.025 (W est 2004))
may be pursued in Illinois. Home Depot argued this issue in the circuit court under the
purview of a motion to dismiss for forum non conveniens pursuant to Illinois Supreme Court
Rule 187 (134 Ill. 2d R. 187). Although our initial opinion analyzed the merits of the venue
issue, after reviewing, on rehearing, our jurisdiction to determine the venue issue pursuant
to Illinois Supreme Court Rule 306(a)(4) (210 Ill. 2d R. 306(a)(4)), we find jurisdiction
lacking. Pursuant to Rule 306(a)(4), a permissive appeal is allowed "from an order of the
circuit court granting or denying a motion for a transfer of venue based on the assertion that
the defendant is not a resident of the county in which the action was commenced, and no
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other legitimate basis for venue in that county has been offered by the plaintiff." 210 Ill. 2d
R. 306(a)(4). As explained by our colleagues in the First District in Ferguson v. Bill Berger
Associates, Inc., 302 Ill. App. 3d 61, 69 (1998), Rule 306(a)(4) only "allows permissive
appeal from the denial of a motion for transfer of venue to a court within another county in
the state." Home Depot's motion to dismiss due to the venue provision in the Missouri
statute did not seek the transfer of the plaintiff's action to another county within the state but,
rather, the transfer of the plaintiff's action to another state. Accordingly, Home Depot's oral
motion to dismiss for improper venue "is beyond the plain language of Rule 306(a)(4), and
we are without authority to grant leave to appeal from the nonfinal order disposing of that
issue" (Ferguson, 302 Ill. App. 3d at 70). Our jurisdiction is thus limited to whether the
circuit court erred in denying Home Depot's motion to dismiss on the basis of forum non
conveniens, which we have jurisdiction to determine under Rule 306(a)(2).
Before we address the merits of Home Depot's forum non conveniens issue, we must
first address the plaintiff's argument that the motion to dismiss was untimely. Illinois
Supreme Court Rule 187(a) (134 Ill. 2d R. 187(a)) provides, "A motion to dismiss or transfer
the action under the doctrine of forum non conveniens must be filed by a party not later than
90 days after the last day allowed for the filing of that party's answer." Here, an amendment
to the complaint was made on January 27, 2006. The amendment changed the cause of
action under which the plaintiff was proceeding to a cause of action under the Missouri
statute, which, as explained below, has major relevance to the issue of forum non conveniens.
The order granting the motion to amend did not set forth a date by which Home Depot was
required to answer or file a responsive pleading to the amended complaint. Accordingly, we
find Home Depot's motion to dismiss to be timely. See Miller v. Consolidated R. Corp., 173
Ill. 2d 252, 260 (1996) (where the circuit court did not set a deadline for the filing of the
defendant's answer, the time limit set forth in Rule 187(a) did not proscribe the circuit court
5
from considering the defendant's latest forum motion).
We now turn to the merits of the forum non conveniens issue. "A trial court's decision
on a forum non conveniens motion will be reversed only if it can be shown that the trial court
abused its discretion in balancing the various factors at issue." Gridley v. State Farm Mutual
Automobile Insurance Co., 217 Ill. 2d 158, 169 (2005) (citing Dawdy v. Union Pacific R.R.
Co., 207 Ill. 2d 167, 176-77 (2003)). "The doctrine of forum non conveniens is founded in
considerations of fundamental fairness and sensible and effective judicial administration."
Gridley, 217 Ill. 2d at 169 (citing Adkins v. Chicago, Rock Island & Pacific R.R. Co., 54 Ill.
2d 511, 514 (1973)). "In determining whether forum non conveniens applies, the trial court
must balance private[-]interest factors affecting the convenience of the litigants and
public[-]interest factors affecting the administration of the courts." Gridley, 217 Ill. 2d at
169-70 (citing Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 223-24 (1987)). The
private-interest factors include the following:
" '(1) the convenience of the parties; (2) the relative ease of access to sources of
testimonial, documentary, and real evidence; and (3) all other practical problems that
make trial of a case easy, expeditious, and inexpensive–for example, the availability
of compulsory process to secure attendance of unwilling witnesses, the cost to obtain
attendance of willing witnesses, and the ability to view the premises (if
appropriate).' " Gridley, 217 Ill. 2d at 170 (quoting First American Bank v. Guerine,
198 Ill. 2d 511, 516 (2002)).
The public-interest factors include the following:
" '(1) the interest in deciding localized controversies locally; (2) the unfairness of
imposing the expense of a trial and the burden of jury duty on residents of a county
with little connection to the litigation; and (3) the administrative difficulties presented
by adding further litigation to court dockets in already congested fora.' " Gridley, 217
6
Ill. 2d at 170 (quoting Guerine, 198 Ill. 2d at 516-17).
"The trial court does not weigh the private[-]interest factors against the public[-]interest
factors." Gridley, 217 Ill. 2d at 170 (citing Guerine, 198 Ill. 2d at 518). "Rather, the trial
court must evaluate the total circumstances of the case in determining whether the balance
of factors strongly favors transfer." Gridley, 217 Ill. 2d at 170 (citing Guerine, 198 Ill. 2d
at 518). "A further consideration is deference to a plaintiff's choice of forum." Gridley, 217
Ill. 2d at 170 (citing Dawdy, 207 Ill. 2d at 173). "A plaintiff's right to select the forum is
substantial and unless the factors weigh strongly in favor of transfer, the plaintiff's choice of
forum should rarely be disturbed." Gridley, 217 Ill. 2d at 170 (citing Dawdy, 207 Ill. 2d at
173).
Applying the foregoing factors to the case at bar, we find that the circuit court abused
its discretion in denying Home Depot's motion to dismiss based on forum non conveniens.
Although the named plaintiff in the class action complaint is a resident of Madison County,
and thus her choice of forum is properly given deference, the balance of all the relevant
factors strongly favors a dismissal in favor of a Missouri forum with regard to the sole claim
remaining in the complaint, which alleges a cause of action under the M issouri statute. W ith
regard to the private-interest factors, we note that St. Louis County, where the Brentwood
Home Depot store is located, is adjacent to the plaintiff's choice of forum, which is Madison
County, Illinois. Accordingly, whether the Brentwood employees reside in Missouri or
Illinois, they will have a short distance to travel whether the cause is heard in Madison
County or St. Louis County. Similarly, any witnesses and documentary evidence located in
Atlanta, Georgia, will have to travel a similar distance. Accordingly, we find that the
relevant private-interest factors do not favor one forum over the other.
In contrast, the public-interest factors overwhelmingly support a dismissal in favor of
the Missouri forum. With regard to the interest in deciding localized controversies locally,
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the sole cause of action at issue was created by a Missouri statute, and the action will be
governed under the substantive laws of Missouri. Missouri thus has a strong interest in
applying its law in its own courts. " 'The need to apply the law of a foreign jurisdiction has
been considered a significant factor favoring dismissal of a suit on grounds of forum non
conveniens.' " Gridley, 217 Ill. 2d at 175 (quoting Moore v. Chicago & North Western
Transportation Co., 99 Ill. 2d 73, 80 (1983)).
This case involves allegedly deceptive merchandising practices that occurred in
Missouri or that arose from conduct in Missouri. The Missouri statute itself provides for the
adjudication of the action in a Missouri court. The Missouri Merchandising Practices Act
provides as follows:
"1. Any person who purchases or leases merchandise primarily for personal,
family[,] or household purposes and thereby suffers an ascertainable loss of money
or property, real or personal, as a result of the use or employment by another person
of a method, act[,] or practice declared unlawful by section 407.020, may bring a
private civil action in either the circuit court of the county in which the seller or
lessor resides or in which the transaction complained of took place, to recover actual
damages." (Emphasis added.) Mo. Ann. Stat. §407.025(1) (West 2004).
In Missouri, the residence of a corporation for venue purposes is deemed to be in the county
in which its registered office in maintained. Mo. Ann. Stat. §508.010(5)(1) (West 2004).
Another provision of the Missouri statute requires the clerk of the court in which the
action is brought to inform the Attorney General of Missouri that the action has been
commenced and to a mail a copy of the judgment or decree that is entered in the action. Mo.
Ann. Stat. §407.025(7) (West 2004). The action is clearly designed to protect consumers
against unlawful merchandising practices that occur in or arise from the State of Missouri,
and the residents of Missouri and the Attorney General of Missouri have a superior interest
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in determining whether violations of the Missouri statute have occurred and, if so, the
appropriate remedy. In addition, it should be noted that a cause of action under the Missouri
statute permits a party to seek an award of punitive damages. The State of Missouri may
place a lien to the extent of 50% on any punitive damages award for contribution to the
Missouri Tort Victims' Compensation Fund. Mo. Ann. Stat. §537.675(3) (West 2004).
These provisions further accentuate the strong interest the State of Missouri has in this
controversy.
While Missouri has a strong interest in deciding this matter locally, "Illinois courts
have an interest in not being burdened with applying foreign law in the absence of strong
policy reasons and a strong connection to the case." Gridley, 217 Ill. 2d at 175. "In addition,
the residents of Illinois should not be burdened with jury duty given the fact that the action
did not arise in, and has no relation to, Illinois." Gridley, 217 Ill. 2d at 175. This is
especially true in the case of Madison County, which is judicially recognized as having a
congested docket. See Dawdy, 207 Ill. 2d at 181 (holding that the Illinois Supreme Court has
taken notice of Madison County's congested docket and that while this factor, in itself, is
relatively insignificant, the supreme court has repeatedly recognized that it is appropriate to
consider the congested condition of the docket in the plaintiff's chosen forum).
For the reasons set forth above, it is clear that the weight of the relevant factors
greatly favors M issouri over Illinois. Accordingly, we find that the balance of factors
strongly favors a dismissal of this case in favor of a Missouri forum and that the circuit court
abused its discretion in denying Home Depot's motion to dismiss based upon forum non
conveniens. We therefore reverse the order of the circuit court that denied Home Depot's
motion to dismiss, we remand with directions for the circuit court to dismiss this action, and
we further provide, pursuant to Illinois Supreme Court Rule 187(c)(2) (134 Ill. 2d R.
187(c)(2)), that if the plaintiff elects to file the action in another forum within six months of
9
the dismissal, the defendant shall accept the service of process and shall waive a statute-of-
limitations defense in the other forum, and the cause of action will be reinstated for further
proceedings in the circuit court of M adison County should the defendant refuse to abide by
these conditions.
Reversed and remanded with directions.
DONOVAN and STEWART, JJ., concur.
10
NO. 5-06-0308
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
JANET CHOCHOROWSKI, Individually and ) Appeal from the
on Behalf of Others Similarly Situated, ) Circuit Court of
) Madison County.
Plaintiff-Appellee, )
)
v. ) No. 02-L-906
)
HOM E DEPOT U.S.A., INC., d/b/a The )
Home Depot, ) Honorable
) Daniel J. Stack,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: September 21, 2007
___________________________________________________________________________________
Justices: Honorable Stephen L. Spomer, J.
Honorable James K. Donovan, J., and
Honorable Bruce D. Stewart, J.,
Concur
___________________________________________________________________________________
Attorneys Michael J. Nester, Donovan, Rose, Nester & Joley, P.C., 8 East Washington Street,
for Belleville, IL 62220; Dwight J. Davis, King & Spalding, LLP, 1180 Peachtree
Appellant Street, N.E., Atlanta, GA 30309-3521
___________________________________________________________________________________
Attorneys Gail G. Renshaw, The Lakin Law Firm, 300 Evans Avenue, P.O. Box 229, Wood
for River, IL 62095-0229; Paul M. Weiss, Freed & W eiss, L.L.C., 111 West
Appellee Washington Street, Suite 1331, Chicago, IL 60602; Malik R. Diab, Diab & Bock,
20 North Wacker Drive, Suite 1741, Chicago, IL 60606
___________________________________________________________________________________