Bill Heard Chevrolet Co. v. Thomas

• Decision Date: 19 October 2001
• Citation: 819 So.2d 34
• Parties: BILL HEARD CHEVROLET COMPANY and Mayflower National Life Insurance Company v. James E. THOMAS and Dorothy L. Dixon.
• Court: Alabama Supreme Court

819 So.2d 34

BILL HEARD CHEVROLET COMPANY and Mayflower National Life Insurance Company v. James E. THOMAS and Dorothy L. Dixon.

1000584.

Supreme Court of Alabama.

October 19, 2001.

Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for Bill Heard Chevrolet Company.

Charles D. Stewart and Jason Lee Holly of Spain & Gillon, L.L.C., Birmingham, for Mayflower National Life Insurance Company.

Kenneth L. Funderburk and James P. Graham, Jr., of Funderburk, Day & Lane, Phenix City, for appellees.

STUART, Justice.

Bill Heard Chevrolet Company ("Heard") and Mayflower National Life Insurance Company ("Mayflower") appeal from the trial court's order conditionally certifying two classes of plaintiffs as to certain claims in an action pending in the Russell Circuit Court. Because we conclude that the trial court failed to perform the rigorous analysis required in certifying a class and failed to allow Heard and Mayflower an adequate opportunity to present any evidence in opposition to the proposed conditional certification order, we reverse and remand with instructions.

Background and Facts¹

James E. Thomas sued Heard; one of its employees, Bill Bratton; and a number of fictitiously named defendants, stating several claims arising from Thomas's purchase of a 1985 Cadillac Deville automobile from Heard. Thomas subsequently added Dorothy L. Dixon as a plaintiff² and substituted Mercury Finance Company of Alabama ("Mercury")³ and Mayflower for two of the fictitiously named defendants.

On June 17, 1998, the plaintiffs filed their "Second Recasted and Amended Complaint." That complaint includes 18 counts. The majority of those counts (14) state claims on behalf of Thomas and Dixon only, but 4 of the counts, counts 15 through 18, state claims on behalf of putative classes. The plaintiffs filed a motion for class certification and requested a hearing on the motion.

The trial court conducted two hearings at which the plaintiffs' motion for class certification was discussed. At the first hearing, held on July 21, 1998, the issue of class certification was only briefly addressed. No evidence in support of class certification was offered at that hearing. At the conclusion of the hearing, the trial court instructed the parties to file briefs in support of their respective positions regarding the class-certification motion.

On December 14, 1998, the trial court conducted another abbreviated hearing on issues related to the motion for class certification. The only substantive issue directly relevant to a class action under Ala. R. Civ. P. 23(a) discussed at this hearing was the issue of numerosity. Counsel for the plaintiffs orally argued the issue but presented no evidence in support of the motion to certify a class. However, shortly after this hearing, on December 21, 1998, the trial court entered an order granting the plaintiffs' motion for class certification. The trial court amended that order on May 17, 1999, after another hearing.

Heard and Mayflower sought relief from the trial court's December 21, 1998, and May 17, 1999, orders granting class certification. They filed in this Court petitions for the writ of mandamus, asking this Court to vacate the May 17, 1999, order and the December 21, 1998, order. See Ex parte Mayflower Nat'l Life Ins. Co., 771 So.2d 459 (Ala.2000). In Ex parte Mayflower, we granted the requested relief, holding that the trial court's orders failed to demonstrate that it had conducted the rigorous analysis required under § 6-5-640 et seq., Ala.Code 1975, and Rule 23, Ala. R. Civ. P., and that the order failed to explain how the evidence supported the trial court's conclusion that the requirements of Ala. R. Civ. P. 23(a) and (b) had been met in this case. We ordered the trial court to vacate its class-certification orders, and we directed the trial judge to

"conduct such proceedings as he deems necessary to determine whether the proponents of class certification have met their burden of proving each of the four elements of Rule 23(a) and at least one element of Rule 23(b). Any future order of the trial court certifying a class must identify each of the four elements of Rule 23(a), Ala. R. Civ. P., and must provide a written rigorous analysis of how the proponents of class certification have met their burden of proving these elements. A certification order must also include a written rigorous analysis of how the proponents of class certification have met their burden of proving one of those elements of Rule 23(b), Ala. R. Civ. P. See Ex parte American Bankers Life Assurance Co., 715 So.2d 186 (Ala.1997).

771 So.2d at 462.

The trial court vacated its orders and the parties then discussed the status of class certification at another hearing held on September 1, 2000. The record before this court indicates that at this hearing, the plaintiffs' counsel submitted to the trial court a nine-page proposed order; that order purported to grant the plaintiffs' motion for class certification. The record reflects that the following exchange occurred at the September 1, 2000, hearing:

"PLAINTIFFS' COUNSEL: Now, I've given Your Honor a copy of a suggested order, which we've gone through—we've gone through the record in great detail, and we've cited in there—I remind the Court and the parties, we've had depositions, in fact, in terms of my clients have been deposed, Bill Heard's clients, employees, have been deposed. The records they have, although inconsistent, I've got them. We've had many many hearings on this class matter and the discovery matters, and, therefore, there is a substantial record in this case that the Court can rely upon. And we've gone back and reviewed the whole record and the law, and I think I—in fact, I know I can represent to the Court that this suggested order is consistent with the record in this case on the issues and is consistent with all the published cases in Alabama and other places in the specificity which is required in order to grant the class action. The only thing that I—well, I don't know any part of it that's not totally supported by the record because we've gone through there and pulled it all out, that part that deals with the issues that class action deals with, and, therefore, I think we've—

"THE COURT: All right. Let me ask then Bill Heard and Mayflower, do you agree or disagree in [plaintiffs' counsel's] telling me that basically what the Supreme Court found wrong was the way I did the order?

". . . .

"MAYFLOWER'S COUNSEL: ... We received this this morning from [plaintiffs' counsel], this proposed order, and I would just say to Your Honor that he recites allegations he's making, but there is no proof in his proposed order to support the allegations he's making, and that's going to be fatal. The Court has got to make a finding of fact to support the claims that the individual is making, so it can move, and then the Court has to go one step further and find that the same things happened to the plaintiff, likely happened to this class as a whole.

"And while I'm talking, Judge, and I'm going to give you this case—

"THE COURT: Okay.

"MAYFLOWER'S COUNSEL: ... The case is Ex parte Household Retail Services, Inc., 744 So.2d 871 [(Ala. 1999)],....

". . . .

"PLAINTIFFS' COUNSEL: Your Honor, we have had numerous discussions on the law, including the law in that case, and there's nothing new cited in the law otherwise by [Mayflower's counsel]. Now, I take it from his response that he agrees with my interpretation of the order. What the order says is that the trial judge is directed to conduct such proceedings as you may deem necessary to determine whether the proponents of the class certification have met the burden of the four elements of 23(a) and 23(b). So it's dealing with that and not with anything else, and if he reads that suggested order carefully and keeps in mind the number of hearings and the size of the record that we have in this case—

". . . .

"THE COURT:—Your observation is well taken, and we have had several hearings, but I don't know, I don't think I have the depositions that you referred to a few minutes ago in the record as such. Do the parties feel because, and this is no criticism by any way, of the conservative bent of the present Supreme Court, that it would be beneficial for the Court to have an order referring specifically to references in the record, have these depositions made a part of the record, have references to prior hearings, a transcript of all those hearings made and refer to those? Now, is that what it's going to take? Is that what the Supreme Court is looking for when they are asking for proof? You know, I always thought proof was something that the jury determined what it was. But is that what we're talking about now for a class action suit, that, basically, is evidence was introduced and the Court has to refer to that in the record to support its order?

". . . .

"PLAINTIFFS' COUNSEL: You do not have to try the whole case. In fact, there's more evidence and more testimony and more record in this case at this point in relation to conditional class [certification] than any case of record.

"I will, Your Honor, just to make sure it's in the record, file all of those with the record to make sure. They should be down there, but I'll take care of that. I'll file those, but I have referred to the record in here, I believe, to the extent that it relates to class action.

"THE COURT: To be quite candid, I haven't looked at this proposed order. I'm looking at it right now.

"PLAINTIFFS' COUNSEL: It's pretty extensive, Judge.

"THE COURT: So I don't know what's in here and what's not.

"PLAINTIFFS' COUNSEL: In my opinion it's pretty extensive. Of course, I—there's plenty of record, and if that's not extensive enough, I'll make it more extensive, because we've got plenty of record, as I say with the quote, the parties have been deposed. We've had hearings and arguments in the record on the law.... Now, how much of the

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