Meighan v. U.S. Sprint Communications Co.

April 7, 1997
FOR PUBLICATION

IN THE SUPREME COURT OF TENNESSEE

JOE C. MEIGHAN, JR., FOR
AT KNOXVILLE

(
FILED
HIMSELF, AND ALL OTHERS ( April 7, 1997
SIMILARLY SITUATED, (
(
Plaintiffs-Appellants, ( Cecil Crowson, Jr.
( Knox Law Appellate C ourt Clerk
(
v. ( Hon. Dale C. Workman, Judge
(
( S. Ct. No. 03S01-9502-CV-00014
U.S. SPRINT COMMUNICATIONS (
COMPANY, (
(
Defendant-Appellee. (

For Plaintiffs-Appellants: For Defendant-Appellee:

Donald K. Vowell John B. Rayson
Robert R. Carl Adrienne L. Anderson
Rainwater, Humble & Vowell Kramer, Rayson, Leake,
Knoxville Rodgers & Morgan
Knoxville
A. James Andrews
Knoxville

Thomas A. Snapp
Knoxville

For Plaintiffs Lawrence E. McCumber
and Patricia Ann McCumber:

Ben W. Hooper, III
Campbell & Hooper
Newport

R. J. Tucker
Newport

Tom Jessee
Jessee & Jessee
Johnson City

O P I N I O N

PETITION FOR WRIT OF MANDAMUS DENIED;
ORDER STAYING PROCEEDINGS IN TRIAL
COURTS LIFTED. REID, J.
 The case is before the Court on a petition for

writ of mandamus. This is one of three cases1 in which

landowners have filed suit against U.S. Sprint Communications

Company (Sprint), asserting claims for inverse condemnation

and trespass and seeking certification as a class action.

Buhl v. Sprint and the instant case, Meighan, have been

before this Court on appeal.2 The relief sought is an order

directing the trial court in McCumber v. Sprint to vacate its

order certifying a class action and to defer to the trial

court in this case on that issue. The Court, heretofore,

entered an order staying the proceedings in all three cases

pending this hearing.

I

These legal proceedings against Sprint began on

October 18, 1988 when John G. Buhl, et al., landowners in

Anderson County and outside Anderson County, filed a suit in

the chancery court for Anderson County, in which the named

plaintiffs, "for themselves and all others similarly

situated," sought certification of a statewide plaintiffs'

class consisting of the owners of land in Tennessee across

which Southern Railway Company maintains a railroad right-of-

1
B u h l v . U . S . S p r i n t C o m m u n i c a t i o n s C o . , N o . 8 8 M C 3 9 5 6 ( A n d e r s o n C o .
C h . C t . f i l e d O c t . 2 1 , 1 9 8 8 ) ; M e i g h a n v . U . S . S p r i n t C o m m u n i c a t i o n s C o . ,
N o . 1 - 4 6 9 - 9 0 ( K n o x C o . C i r . C t . f i l e d J u n e 5 , 1 9 9 0 ) ; M c C u m b e r v . U . S .
S p r i n t C o m m u n i c a t i o n s C o . , N o . 2 3 , 7 9 6 - I I I ( C o c k e C o . C i r . C t . f i l e d
J u n e 6 , 1 9 9 6 ) .
2
Buhl v. U.S. Sprint Communications Co., 840 S.W.2d 904 (Tenn.
1992); Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632 (Tenn.
1996).

- 2 -
way and across which Sprint has constructed a fiber optics

communications system. On appeal from cross-motions for

summary judgment, this Court held in Buhl that Sprint's use

of the property constituted the taking of an interest therein

for which the landowners were entitled to be compensated.

Buhl v. U.S. Sprint Communications Co., 840 S.W.2d 904 (Tenn.

1992). Certification of the class action was not an issue on

appeal of the Buhl case. After deciding the issues of law

presented, the case was remanded to the trial court for

further proceedings, including the issue of class

certification. The opinion was filed on October 26, 1992.

On June 5, 1990, while the Buhl case was on

appeal, Joe C. Meighan, Jr., a landowner in Knox County,

filed the instant suit against Sprint in the circuit court

for Knox County in which he, "for himself and all others

similarly situated," asserted the same claims as those made

in the Buhl case. Meighan had sought to be named a

representative plaintiff in the Buhl case, but his claim was

dismissed by the trial court because his property was not

located in Anderson County. Meighan did not appeal the

dismissal of his claim in the Buhl case. The trial court on

remand stayed the proceedings in the Buhl case, pending a

decision in this case.

In this case, the Knox County Circuit Court denied

plaintiff Meighan's prayer for certification of a statewide

class, finding lack of jurisdiction, but granted

- 3 -
certification of a class limited to the owners of land

located in Knox County. It dismissed the claim based on

trespass. On interlocutory appeal, the Court of Appeals

dismissed the Knox County class action certification and

affirmed the dismissal of the action for trespass. This

Court reversed, holding that the Court of Appeals erred in

limiting the class to owners of land located in Knox County

and that the Court of Appeals also erred in dismissing the

cause of action based on trespass. Meighan v. U.S. Sprint

Communications Co., 924 S.W.2d 632 (Tenn. 1996). The opinion

was released on April 29, 1996. A petition to rehear was

denied on July 1, 1996.

On June 6, 1996, while the Meighan case was

pending before this Court on a petition to rehear, Lawrence

and Patricia Ann McCumber, landowners in Cocke County, filed

a suit against Sprint in the circuit court of Cocke County

"for themselves and all others similarly situated." The

allegations are identical to those in the Meighan complaint

except for the named plaintiffs and the requested class,

which is all of Tennessee excluding Knox County. On the same

date the McCumber complaint was filed, and without any

notice, a conditional order was entered by the Cocke County

court certifying a class which included all of Tennessee

except Knox County. In the order certifying the case as a

class action, the Court relied upon the decision of this

Court in Meighan for its finding that the allegations in

McCumber were "sufficient to justify certification." In

- 4 -
excluding Knox County, the Court found "that a prior class

has been certified as to Knox County, Tennessee only."

The appeal in Meighan was concluded when the

petition to rehear was denied on July 1, 1996. This Court

ordered that the trial court "should consider the numerous

justifications for allowing the maintenance of a class action

in this case including judicial economy, financial

feasibility, and consistent verdicts, and should not base

any future class determinations on venue alone." Id. at 639.

However, the trial court, on remand, refused to consider

certification of a statewide class, finding that alternative

had been precluded by entry of the certification order in

McCumber, while Meighan was on appeal.

On the petition before the Court, Meighan seeks a

writ of mandamus directing the Cocke County court to vacate

its order for class certification and defer to any decision

on that issue which may be made by the trial court in this

case. McCumber responds that mandamus does not lie in this

case, and, further, there has been no error committed in any

of the trial courts. Sprint's position is that the class

certification issue should be determined by the Anderson

County court in the Buhl case.

II

As a preliminary matter, the Court notes that

- 5 -
there are a number of technical defects in the petition for

the writ. The suit was not prosecuted in the name of the

state on the relation of the petitioner, as is required. See

Whiteside v. Stewart, 91 Tenn. 710, 20 S.W. 245, 246 (1892).

Also, the petitioners did not institute this suit against the

judge upon whom it seeks a writ to issue, as is required.

See State v. Thompson, 118 Tenn. 571, 102 S.W. 349, 351

(1907). Nevertheless, the Court elects not to dismiss the

petition because of technical defects.

III

Whether a suit should be certified as a class

action in a particular case is a matter of judicial

discretion or judgment to be determined by the application of

established legal principles to the facts and circumstances

of the case. After discussing the prerequisites to a class

action, the Court noted in Meighan, "the determination of

whether an action should proceed as a class action is a

matter which is left to the sound discretion of the trial

judge." Meighan, 924 S.W.2d at 637. The question of whether

the suit should proceed as a class action was presented in

each of these three cases. The complaint in each case was

filed on behalf of the named plaintiffs and "all others

similarly situated" and sought certification of a statewide

class of plaintiffs. A subsidiary issue presented in each

case was whether the class to be certified would be statewide

or limited. The focus of this petition is the trial court's

- 6 -
decision in McCumber to certify a statewide class except for

those landowners "similarly situated" in Knox County.

Plaintiff McCumber properly states that the

decision regarding the certification of a class action lies

within the trial court's judicial discretion, but his

insistence that the court's discretion is not subject to

review on a petition for writ of mandamus overstates the

rule.

The writ of mandamus is an extraordinary remedy,

whose purpose is to exert the revisory appellate power over

the inferior courts where there is no other plain, adequate,

and complete method of obtaining the relief to which one is

entitled. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S.

33, 36, 101 S. Ct. 188, 190 (1980); 52 Am. Jur. 2d Mandamus §

12 (1970). Mandamus generally will not be issued if the

petitioner has a legal remedy that is equally convenient,

complete, beneficial, and effective, but the remedy which

would preclude mandamus must be equally as convenient,

complete, beneficial, and effective as mandamus, and must

also be sufficiently speedy to prevent material injury. 52

Am. Jur. 2d Mandamus §§ 46, 49 (1970). Although the writ is

more often addressed to ministerial acts, rather than

discretionary acts, the writ may be addressed to

discretionary acts when the act is done in an "arbitrary and

oppressive manner" or where there has been a "plainly

palpable" abuse of discretion. Peerless Const. Co. v. Bass,

- 7 -
158 Tenn. 518, 524, 14 S.W.2d 732, 733 (1929).

The need for the writ to be exercised by an

appellate court may require an analysis different from that

made by a trial court. In considering a petition addressed

to a trial court, this Court stated: The "essential purpose

[of the writ] is to execute a ministerial function, not

adjudicate a legal issue." Paduch v. Johnson City, 896

S.W.2d 767, 770 (Tenn. 1995). The essential purpose of the

writ utilized by appellate courts was discussed in the recent

case of State v. Irick:

It is well-settled, however, that the
appellate courts of this state have limited
mandamus jurisdiction in circumstances under which
the writ is necessary to aid the exercise of the
appellate function. State v. Sneed, 105 Tenn.
711, 58 S.W. 1070 (1900); State v. Baby John Doe,
813 S.W.2d 150 (Tenn. Crim. App. 1991); Blanton v.
Tennessee Central Ry. Co., 4 Tenn. App. 335
(1926); Hyde v. Dunlap, 3 Tenn. App. 368 (1926).
In Sneed, this Court explained the rule as
follows:

The granting of a writ of
mandamus is the exercise of an
original, and not an appellate,
jurisdiction, the writ itself
being an original process.
Hence it follows that in those
states where the courts of last
resort are devoid of original
jurisdiction and vested with
only appellate powers, such
court cannot exercise
jurisdiction by mandamus. An
exception, however, is
recognized when the issuing of
the writ is necessary in aid of
the appellate powers of such
courts, and in such cases it is
not regarded as an original
proceeding, but as one

- 8 -
 instituted in aid of the
appellate jurisdiction
possessed by the court.

Id., 105 Tenn. at 722, 58 S.W. at 1073
(emphasis added). This mandamus
jurisdiction is merely ancillary to a
court's appellate power and is
possessed, not by virtue of any statute,
but under the common law, as inherent
and necessary to the exercise of its
function as a court of appellate
jurisdiction. State ex rel. Kain v.
Hall, 65 Tenn. 3, 7 (1873).

State v. Irick, 906 S.W.2d 440, 442 (Tenn. 1995).

The order entered in the McCumber case sets forth

the basis of the Court's decision certifying the action as a

class action and also the basis for excluding residents of

Knox County from the class. For the writ to lie, this order

must reflect a plainly palpable abuse of discretion. The

order states:

Based upon the opinion of the Tennessee
Supreme Court in the case of Joe C.
Meighan, Jr. v. U.S. Sprint
Communications Company, 21 TAM 19-3,
filed April 29, 1996, and it appearing
to the Court that the allegations and
claims in the Meighan ruling are similar
to the allegations and claims set forth
in the instant case; and it further
appearing to the Court that the facts
set forth in the plaintiff's complaint
are sufficient to justify certification
in accordance with Rule 23 of the
Tennessee Rules of Civil Procedure; that
no evidence is before the Court as to
any other statewide certification
granted with regard to the allegations
and claims in the instant case; that it
appearing to the Court that a prior
class has been certified as to Knox

- 9 -
 County, Tennessee only; . . . .

The McCumber court obviously relied upon the decision of this

Court in Meighan to reach the conclusion that the facts set

forth in identical complaints were sufficient to justify one

class action. Significantly, the McCumber court did not find

that application of the criteria set forth in Rule 23 to the

facts and circumstances required that Knox County be

excluded. The order excludes Knox County because "a prior

class has been certified as to Knox County." That conclusion

rests on an obvious fallacy. Contrary to the court's

finding, a class limited to Knox County had not been

certified by the court that had jurisdiction of the issue.

The issue encompassing the extent of the class to be

certified was pending in the Supreme Court at the time the

order in McCumber was entered. This Court had announced its

decision that the trial court had erred in limiting the class

based on venue. After rejecting every argument advanced in

favor of limiting the class, this Court remanded the case to

the trial court with instructions that the extent of the

class to be certified be determined by factors other than

venue. The Court stated:

On remand the court should consider the
numerous justifications for allowing the
maintenance of a class action in this
case including judicial economy,
financial feasibility, and consistent
verdicts, and should not base any future
class determinations on venue alone.

- 1 0 -
Meighan v. U.S. Sprint, 924 S.W.2d at 639. The effect of the

trial court's order in McCumber, if allowed to stand, would

be the pre-emption of an issue pending in this Court and a

resolution of that issue contrary to an explicit holding by

this Court.

The issue of competing class actions is discussed

in 2 Herbert B. Newberg & Alba Conte, Newberg on Class

Actions, § 7.31, pp. 7-97 (3rd ed. 1992):

Multiple Class Suits Before Different
Courts.

When cases bearing similar class
allegations and similar causes of action
are pending in different courts, such as
different federal and state courts or
different state courts, courts should be
kept informed of class certification
proceedings relating to the same cause
of action, and rarely should the same
class be certified on the same cause of
action before more than one court, in
the absence of special circumstances.

In determining the superiority of
certifying a class in a particular
forum, the court should compare the
advantages of a class suit in the
different fora and should weigh
considerations of class scope, tolling
of statute of limitations for the
benefit of the class, reconciliation of
pending individual suits with the
certification of a class suit without
opt-out rights under Rule 23(b)(1) or
(2), whether in fact a class suit is
pending in another more favorable forum,
certification of a class limited to
selected issues or claims, the state of
litigation progress in the competing
suits, and a host of other factors.

- 1 1 -
(Emphasis added and footnotes omitted.)

The same authority addresses whether orders

certifying class actions may be reviewed on petitions for

writ of mandamus:

An appeal by mandamus under the All
Writs Act3 provides another alternative
for interlocutory review of errant class
rulings. Mandamus is appropriate for
abuses of discretion, rather than
misinterpretations of questions of law.
It may lie if the district court, in
determining propriety of the class
action, acts outside its jurisdiction,
without regard to applicable procedural
safeguards, or applies or refuses to
apply the criteria of Rule 23 in an
arbitrary manner. However, if a
district court has acted within its
jurisdiction according to procedural
safeguards and applies the criteria of
Rule 23 in a nonarbitrary manner,
mandamus is inappropriate to secure a de
novo review of the ruling on the class.

Newberg at § 742, pp. 7-128-29 (footnotes omitted).

Other jurisdictions have utilized the writ of

mandamus and stayed proceedings to regulate class actions.

In Nelson v. Grooms, 307 F.2d 76 (5th Cir. 1962), the

3
The Act provides in relevant part:

The Supreme Court and all courts established by
Act of Congress may issue all writs necessary or
appropriate in aid of their respective
jurisdictions and agreeable to the usages and
principles of law.

28 U.S.C. § 1651(a). The state courts in Tennessee have essentially the
same authority as this statute gives the federal courts. See Tenn. Code
Ann. § 16-3-202 (1994).

- 1 2 -
petitioners' motion for injunctive relief was postponed by

the trial judge because it encompassed the same claims as a

case pending in the same federal district court. On a

petition for mandamus directing the court to promptly hear

and determine the motion, the Fifth Circuit stated,

We have been cited to and have found no
case deciding whether it is permissible
to have pending in the same district
court two class actions seeking
virtually the same relief, or whether
the plaintiffs filing the later class
action should more properly seek to
intervene in the suit already filed . .
. .

Where two actions involving the
same parties and the same issues are
pending before two federal courts it has
been held that the court in which the
second proceeding is initiated will
normally, in the absence of
countervailing factors, stay the
proceedings pending the outcome of the
prior similar suit between the same
parties in the other federal court.

Id. at 78. The Court denied the writ of mandamus.

In New York State Teamsters Conference Pensio and

Retirement Fund v. Hoh, 554 F. Supp. 519, 529 (N.D. N.Y.

1982), the court stayed motions for summary judgment on

counterclaims stating,

the issues herein are virtually
identical to the pending class action .
. . . Therefore, in the interest of
judicial economy, to avoid duplication
of effort by the parties, and since the
Eastern District action is now at a more

- 1 3 -
 advanced stage than this case, this
Court will exercise its discretion to
stay proceedings on the instant
counterclaims pending a determination in
the Eastern District case.

In Jam Products v. Dominick's Finer Foods, 458

N.E.2d 100, 102 (Ill. App. 2d Dist. 1983), on appeal from the

denial of a motion to stay a suit by an individual where a

class action was pending in a different circuit court, the

court stated,

When determining whether to stay
the latter of two suits brought
concerning a given controversy, the
courts consider a number of factors
which include: "comity; prevention of
multiplicity, vexation and harassment;
likelihood of obtaining complete relief
in the foreign jurisdiction and the res
judicata effect of a foreign judgment in
the local forum."

The court granted the stay, concluding that the plaintiff

could obtain complete relief in the class action and that

there was "no counterbalancing reason appearing of record,

which would otherwise justify the maintenance of separate

suits in sister counties regarding the factual transaction

involved herein." Id. at 103.

In Lusardi v. Lechner, 855 F.2d 1062 (3rd Cir.

1988), the plaintiffs sought relief under the All-Writs Act,

28 U.S.C. § 1651, after the district court revoked its prior

conditional certification of an opt-in class in an age

- 1 4 -
discrimination suit. The Third Circuit noted that although

the writ of mandamus is seldom issued, the writ may issue

where no other adequate means of obtaining relief is

available, and the court below has committed a clear error of

law. Id. at 1069. The court found that although it lacked

appellate jurisdiction, it would grant mandamus for the

limited purpose of directing the district court to vacate its

order revoking class certification. Id. at 1080.

More recently, the Sixth Circuit Court of Appeals

issued a writ of mandamus directing the district judge to

decertify the plaintiff class because the district judge had

totally disregarded the requirements of Fed. R. Civ. P. 23

and had made similar rulings in other cases involving medical

products liability actions. In Re American Medical Systems,

Inc. 75 F.3d 1069 (6th Cir. 1996). The Sixth Circuit held

that "on the extraordinary facts of this case . . . the

district judge's disregard of class action procedures was of

such severity and frequency so as to warrant [the issuance of

the writ.]" Id. at 1074. See also Matter of Rhone-Poulenc

Rover, Inc., 51 F.3d 1293, 1295 (7th Cir. 1995) ("Mandamus

has occasionally been granted to undo class certifications .

. . .").

In a similar case, the Alabama Supreme Court

issued a writ of mandamus to stay the proceedings in one of

two conflicting or overlapping class actions. Ex Parte

Liberty Nat. Life Ins. Co., 631 So. 2d 865 (Ala. 1993).

- 1 5 -
Robertson filed a class action in Barbour County alleging

that Liberty National, fraudulently and by misrepresentation,

had instituted cancer insurance policy exchange programs.

The court certified the class. Three weeks later Adair and

others filed an action in Mobile County. The allegations in

the two complaints were virtually identical. Liberty

National's motion to dismiss the Mobile County action was

denied. In response to a petition for mandamus, the Alabama

Supreme Court acknowledged that the writ of mandamus may be

issued only where there is a clear legal right in the

petitioner to the order sought, an imperative duty upon the

respondent to perform the duty, a lack of another adequate

remedy, and the properly invoked jurisdiction of the court.

Id. at 867. However, the court went on to find that the law

is clear that the circuit court in which jurisdiction over a

controversy was first invoked has exclusive jurisdiction over

the case, and that the law does not permit a second circuit

court to adjudicate the same controversy that is being

litigated in a pending action in another circuit court of

competent jurisdiction. Id. The court therefore granted the

writ of mandamus and ordered the Mobile County court to stay

its proceedings.

Thus, while mandamus relief is rarely justified,

there is ample authority for the issuance of the writ to

correct a class certification upon a clear showing that the

trial court has committed legal errors or abused its

discretion and no other adequate remedy is available. The

- 1 6 -
conclusion is that in extraordinary cases, including class

actions, this Court may, and properly should, issue a writ of

mandamus if that action is necessary to protect its

jurisdiction or accomplish substantial justice.

However, the Court elects not to issue the writ

upon this application, because this matter can be resolved in

the trial courts. As the United States Supreme Court has

stated, "[i]n order to insure that the writ will issue only

in extraordinary circumstances this Court has required that a

party seeking issuance have no other adequate means to attain

the relief he desires." Allied Chemical Corp. v. Daiflon,

Inc., 449 U.S. at 36, 101 S. Ct. at 190. Here, the parties

have at their disposal rules of procedure whereby

applications for relief can be presented to the several trial

courts, and those courts have the authority and duty to grant

appropriate relief. The writ would lie only in the event

appropriate relief is requested but denied.

Consequently, the petition is denied.

The order staying proceedings in the three trial

courts is lifted as of the date this decision, including any

orders on petitions to rehear, becomes final.

Costs are taxed one-half to petitioner Meighan and

one-half to McCumber, who was allowed to participate as a

party in interest on this appeal.

- 1 7 -
 ____________________________
Reid, J.
Concur:
Birch, C.J., Drowota and
Anderson, JJ.

- 1 8 -