Janson et al v. LegalZoom.com, Inc.

Filing 171

SUGGESTIONS in opposition re 166 MOTION in limine to Exclude Evidence Concerning Prejudgment Interest filed by James J. Simeri on behalf of Plaintiffs Gerald T. Ardrey, C & J Remodeling LLC, Chad M Ferrell, Todd Janson. Reply suggestions due by 8/26/2011 unless otherwise directed by the court (Related document(s) 166 ) (Simeri, James)

IN UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
TODD JANSON, et al., on behalf of
themselves and on behalf of all others
similarly situated,

Plaintiffs,
v.
LEGALZOOM.COM, INC.

Defendant.

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Case No. 2:10-cv-04018-NKL

PLAINTIFFS’ SUGGESTIONS IN OPPOSITION TO LEGALZOOM’S
MOTION IN LIMINE TO EXCLUDE EVIDENCE CONCERNING
PREJUDGMENT INTEREST
The Court should deny LegalZoom’s motion in limine to exclude evidence concerning
prejudgment interest. All class members who purchased documents from LegalZoom between
December 18, 2004 through December 17, 2007 (those class members not entitled to treble
damages under § 484.020) are entitled to prejudgment interest from the dates of their
transactions with LegalZoom. This is the law stated by the Missouri Supreme Court in Carpenter
v. Countrywide Home Loans, Inc., 250 S.W.3d 697 (Mo. 2008).
In Countrywide, as in this case, the plaintiffs sued for charging fees for preparing legal
documents in violation of Missouri’s unauthorized-practice-of-law statute, Mo. Rev. Stat.
§ 484.020. The trial court entered judgment in favor of the plaintiffs. For class members who
paid the fees within two years of filing, the court awarded treble damages under § 484.020, and
prejudgment interest. Id. at 700. For class members who paid the fees within three to five years
of filing, the court awarded the amount of the fees paid, and prejudgment interest. Id.

On appeal to the Missouri Supreme Court, Countrywide argued that the trial court erred
by awarding prejudgment interest. As to class members who paid the fees within two years of
filing, the court agreed with Countrywide and reversed. It held that those class members were not
entitled to both treble damages and prejudgment interest. Id. at 704–05.
But as to the class members who paid the fees within three to five years of filing, the
court rejected Countrywide’s argument and affirmed. The court explained that these class
members were recovering, not under Mo. Rev. Stat. § 484.020, but under the theory of money
had and received. More particularly, the court stated:
In this case, each class member will have a certain date that the
unauthorized fee was charged and the amount of the fee is known.
There is no reason why they would not be entitled to recover the
time value of this sum. Countrywide was not authorized to charge
this fee nor should it be allowed to retain the time value of the
money collected. There was no abuse of discretion in awarding
prejudgment interest to the class of plaintiffs who paid a document
preparation fee within three to five years prior to filing suit.
Id. at 704.
As in Countrywide, in this case, Plaintiffs allege a claim for money had and received.
Class members not entitled to treble damages under Mo. Rev. Stat. § 484.020 are entitled to
prejudgment interest because their claims are for money had and received. All class members
have a date certain for which LegalZoom charged them the unauthorized fees, and the amounts
of these fees is known. There is no reason why these class members are not entitled to recover
the time value of these amounts.
LegalZoom argues that Plaintiffs are not entitled to prejudgment interest because their
claims do not qualify for prejudgment interest under Mo. Rev. Stat. § 408.020. Plaintiffs,

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however, are not seeking prejudgment interest under § 408.020. Plaintiffs seek prejudgment
interest based on their claims for money had and received. In Countrywide, the court affirmed
the award of prejudgment interest on a claim for money had and received, precisely the claim
that Plaintiffs here allege. In Countrywide, the Court did not require that demands be made, or
otherwise apply Mo. Rev. Stat. § 408.020 in any other way to limit the plaintiffs’ claims for
prejudgment interest on their claims for money had and received. Based on Countrywide, this
Court should not apply the requirements of Mo. Rev. Stat. § 408.020 to Plaintiffs claims for
prejudgment interest on their claims for money had and received.
Therefore, Plaintiffs request that this Court deny this motion in limine, and provide all
other relief that is just.

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Edward D. Robertson, Jr., # 27183
Mary Doerhoff Winter, # 38328
BARTIMUS, FRICKLETON,
ROBERTSON & GORNY
715 Swifts Highway
Jefferson City, MO 65109
573.659.4454, 573.659.4460 (fax)
[e-mail],
[e-mail]
Timothy Van Ronzelen, #44382
Matthew A. Clement, #43833
Kari A. Schulte, #57739
COOK, VETTER, DOERHOFF &
LANDWEHR, PC
231 Madison
Jefferson City, Missouri 65101
573.635.7977, 573.635.7414 (fax)
[e-mail]
[e-mail]
[e-mail]

/s/ David T. Butsch
David T. Butsch, # 37539
James J. Simeri, #52506
BUTSCH SIMERI FIELDS LLC
231 S. Bemiston Ave., Ste. 260
Clayton, MO 63105
314.863.5700, 314.863.5711 (fax)
[e-mail]
[e-mail]

Randall O. Barnes, #39884
RANDALL O. BARNES & ASSOCIATES
219 East Dunklin Street, Suite A
Jefferson City, Missouri 65101
573.634.8884, 573.635.6291 (fax)
[e-mail]

Steven E. Dyer, #45397
LAW OFFICES OF STEVEN DYER
10850 Sunset Office Drive, Ste. 300
St. Louis, MO 63127
314.898.6715
[e-mail]

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CERTIFICATE OF SERVICE
I certify that on August 9, 2011, I filed the foregoing with the Clerk of the Court using
the CM/ECF system. The system sent notification of this filing to the following:
Party

Defendant
LegalZoom.com, Inc.

Counsel
Robert M. Thompson
James T. Wicks
BRYAN CAVE LLP
One Kansas City Place
1200 Main Street, Ste. 3500
Kansas City, MO 64105
816.374.3200, 816.374.3300 (fax)
John Michael Clear
Michael Biggers
James Wyrsch
BRYAN CAVE LLP
One Metropolitan Square – Ste. 3600
211 N. Broadway
St. Louis, MO 63102
314.250.2000, 314.259.2020 (fax)

/s/ David T. Butsch

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