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09/02/94 EX PARTE GOLD KIST v. GOLD KIST

September 2, 1994

EX PARTE GOLD KIST, INC. (IN RE: GARRY ROWLAND, ET AL.
v.
GOLD KIST, INC.



(Walker Circuit Court, CV-94-106). Horace H. Nation III (Walker Circuit Court), Trial Judge.

Released for Publication December 7, 1994.

Houston,

The opinion of the court was delivered by: Houston

PETITION FOR WRIT OF MANDAMUS

HOUSTON, JUSTICE.

Gold Kist, Inc., petitions this Court for a writ of mandamus directing the trial court to set aside its order designating a class and certifying the plaintiffs' action as a class action. The petition is granted in part and denied in part.

The record presented to us indicates the following: Gold Kist is an agricultural cooperative engaged in the business of selling different kinds of animal feed to its farmer members throughout the Southeast. Gold Kist sells this feed in Alabama primarily through 14 retail stores located throughout the state. A single feed mill in Guntersville supplies a variety of feed to these retail stores. (This mill is hereinafter referred to as "the Guntersville feed mill.") Customers may purchase "bag feed" in small quantities directly from the retail stores, or they may place orders for bulk deliveries. Some orders for bulk deliveries are transmitted to the Guntersville feed mill, where the feed is loaded onto Gold Kist trucks and then delivered to the customers' farms. Some customers use their own trucks to pick up feed at the Guntersville feed mill. In addition to the Guntersville feed mill, Gold Kist also has another feed mill in Guntersville, as well as one in Jasper, both of which apparently sell only poultry feed.

The plaintiffs sued Gold Kist as individuals and also moved to certify their action as a class action on behalf of "all persons or entities who at any time purchased feed from Gold Kist's Guntersville [feed mill] and who paid for feed they did not receive by virtue of their feed being augured off by Gold Kist." The plaintiffs later filed an amended complaint in which they stated in the third paragraph that they were suing Gold Kist as individuals and "on behalf of a class of Alabama residents who, through transactions occurring at any time up to June 1, 1993, but not after, purchased and had bulk feed delivered to them from a Gold Kist plant in Alabama." (Emphasis added.) They sought an accounting and sought damages for breach of contract and fraudulent suppression and sought damages under the doctrine of unjust enrichment. However, the plaintiffs alleged in the fifth paragraph of their amended complaint that Gold Kist had for over 30 years engaged in a practice of loading its customers' trucks at Gold Kist mills in such a manner as to provide less bulk feed than they had purchased. This practice, the plaintiffs alleged, resulted in over charges to many of Gold Kist's customers over the years. Plaintiffs moved to have the trial court designate a class and to certify the action as a class action under Rule 23, Ala.R.Civ.P. Gold Kist opposed the motion, arguing that the plaintiffs' claims were actually based on allegations that Gold Kist had engaged in a pattern or practice of off-loading its own trucks in such a manner as to deliver less bulk feed to the customers' farms, and arguing that the plaintiffs had failed to establish the prerequisites to class action certification under Rule 23. After a hearing, the trial court entered an order specifically defining a class to include Gold Kist customers who had had feed delivered to their farms in Gold Kist trucks. That order provided, in pertinent part, as follows:

"This matter came to be heard by the court on the plaintiffs' motion for class certification. This court has reviewed the pleadings, the court file, the plaintiffs' motion and defendant's responses thereto, has heard all the evidence in the form of deposition testimony, interrogatory answers from an earlier proceeding, and documents presented by the plaintiff. The defendant offers no evidence in opposition to plaintiffs' motion. Having further entertained briefs and oral argument of counsel, and the court having considered all of same carefully, the court orders and decrees that this action shall proceed as a class action, pursuant to Rule 23(b)(1), (2), and (3) of the Alabama Rules of Civil Procedure.

"Accordingly, it is hereby ordered, adJudged, and decreed:

"1) That the class in this action shall be composed and defined as set out hereinafter to be:

"Each and every resident of the State of Alabama, who has at any time up to June 1, 1993, purchased and/or had bulk feed delivered to them from a Gold Kist plant in Alabama.

"2) The court names the plaintiffs Garry Rowland, Jackie McCullar and Reda McCullar as representatives of the class, and finds that each is an appropriate class representative, and can fairly and adequately represent the interests of the class."

An order certifying an action as a class action is subject to review by way of a petition for a writ of mandamus. Ex parte Blue Cross & Blue Shield of Alabama, 582 So. 2d 469 (Ala. 1991). However, mandamus is not a writ of right; it is a discretionary writ, drastic and extraordinary in nature, to be issued only where there is 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) an absence of another adequate remedy; and 4) jurisdiction in the court from which relief is sought. Ex parte State ex rel. McKinney, 575 So. 2d 1024 (Ala. 1990). In short, mandamus is not an appellate remedy for all seasons. This Court has issued its writ of mandamus upon petition of a defendant when a trial court certified a class action without any motion having been filed asking for a class to be designated or for the action to be certified and without any evidence, ...


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