Appeal from the Circuit Court of Madison County. No. 01-L-645 Honorable Nicholas G. Byron, Judge, presiding.
The opinion of the court was delivered by: Justice Welch
Rule 23 order filed November 3, 2003; Motion to publish granted November 20, 2003.
The defendant, GMAC Financial Services, also known as General Motors Acceptance Corp., appeals from an order of the circuit court of Madison County denying its motion to transfer venue to Macoupin County. For the reasons that follow, we affirm.
The facts relevant to our resolution of this appeal are as follows. On December 18, 2002, the circuit court of Madison County granted David L. Reynolds a Madison County resident, leave to file a third amended class action complaint against the defendant. The complaint sounded in three counts for breach of contract, statutory fraud, and consumer fraud. Essentially, the suit alleges that the defendant, a finance company, conspired with automobile dealers in overcharging customers for certain "add-ons" purchased by customers when financing their vehicles. These "add-ons" include credit life insurance, credit disability insurance, and extended service warranties. When Reynolds purchased a vehicle, he opted to purchase some "add-ons." The form contract he signed set forth an amount charged for the "add-ons" under the category of "Other Charges Including Amounts Paid to Others on Your Behalf." According to Reynolds, however, the amount listed in the contract was not the amount actually paid to "others" on his behalf. Reynolds claims that a portion of that amount was kept by the defendant and split with the dealers. Reynolds filed a class action suit on behalf of all persons (hereinafter "the plaintiffs") who, on or after April 4, 1991, purchased an "add-on" at the time they purchased a vehicle, signed a form contract similar to the one signed by Reynolds, and had the contract assigned to the defendant.
On June 4, 2001, after the plaintiffs had filed their initial complaint but prior to any subsequent amendments, the defendant filed a motion to transfer venue. The defendant claimed that venue was not proper in Madison County because Reynolds had not purchased his vehicle there and Reynolds had not entered into a contract there. The defendant claimed that the vehicle was purchased in Macoupin County and that the defendant accepted the assignment of the contract in St. Louis County, Missouri. The defendant further claimed that it does not enter into any contracts in Madison County, that it does not have a registered office or other office in Madison County, and that it does not do business in Madison County for purposes of satisfying the venue statute. The defendant requested that venue be transferred to Macoupin County, where the defendant has a place of business and where the vehicle was purchased.
In support of its motion, the defendant attached a one-page affidavit from Michael Boyle, an operations manager. The affidavit claimed that the defendant does not have any offices, sales agents, or employees located in Madison County, that the defendant does not enter into any contracts in Madison County, that dealers who request financing for their customers must submit any contracts to offices in St. Louis County, Missouri, that if the contracts are accepted, they are accepted in St. Louis County, that the defendant does not receive any money or commission from the sale of any credit life or disability insurance policies, that the defendant merely finances the purchases of such insurance by those customers who request the defendant to provide financing for the purchase of such policies, and that neither the defendant nor any of its affiliates have any involvement in the sale or underwriting of such insurance.
The plaintiffs filed a brief opposing the defendant's motion to transfer. The plaintiffs claimed that a part of the transaction occurred in Madison County and that the defendant is "doing business" in Madison County for purposes of the venue statute. The plaintiffs attached an affidavit from David Reynolds, wherein he stated that he received a payment book or statement at his Madison County residence from the defendant and that he made a payment to the defendant from his Madison County residence on a draft from a bank located in Madison County with money that he earned in Madison County. Reynolds also claimed that the vehicle he purchased and financed through the defendant was housed in Madison County.
In addition to this affidavit, the plaintiffs attached two separate depositions from representatives of the defendant. The first was from Kevin Bosch, who is responsible for approving credit and supervising the discounting of contracts. Bosch testified that the defendant enters into contracts with automotive dealers in Madison County. Bosch also testified that the defendant and the dealers in Madison County exchange funds monthly depending on the amount of finance income generated during that month. Bosch stated that the amount generated is the difference between the defendant's discounted interest rate and the rate the dealer contracted with the retail customers. In addition, Bosch testified that the defendant notifies customers in Madison County when they are delinquent in payments and that, in some cases, it may hire somebody to repossess the vehicle. Bosch also indicated that the defendant may sue the delinquent party in Madison County circuit court.
Bosch testified that since 1991, a total of 21,797 Madison County residents have financed their vehicles through the defendant. Bosch's testimony does not reveal how much revenue was generated from these contracts. The plaintiffs speculate that it was roughly $217 million (a number derived from the plaintiffs' assumption that each loan averaged 36 months and $10,000).
Susan Klyasheff, a wholesale administrative analyst, was also deposed. She testified that during the previous 10 years, the defendant had been involved in wholesale security agreements with dealers in Madison County that included financing a dealer's inventory, real estate, equipment, working capital, and revolving lines of credit. Klyasheff offered no monetary figures revealing the financial extent of their involvement.
On July 25, 2002, the defendant's motion to transfer venue was argued before the circuit court of Madison County. On September 6, 2002, the circuit court denied the defendant's motion. In so doing, the circuit court found, inter alia, as follows: "[A]s evidenced by the deposition testimony of [the defendant's] employees, [the defendant] is, inter alia, in the business of making loans and collecting the principal and interest on these loans, from Madison County residents [and] on financial instruments written from Madison County banks." (Emphasis in original.) The circuit court concluded that this is sufficient to satisfy the "doing ...