
    Ex parte ORKIN EXTERMINATING CO., INC. (In re Phillip Junkin and Debra Junkin v. Orkin Exterminating Co., Inc., et al.)
    1010533.
    Supreme Court of Alabama.
    Sept. 6, 2002.
    
      Michael L. Bell, Stephen J. Rowe, and William O.L. Hutchinson of Lightfoot, Franklin & White, L.L.C., Birmingham, for petitioner.
    Thomas F. Campbell, Bert J. Miaño, and Raymond L. Bronner of Campbell & Baker, L.L.P., Birmingham, for respondents.
   MOORE, Chief Justice.

PETITION DENIED.

WOODALL, J., concurs.

LYONS, JOHNSTONE, and HARWOOD, JJ., concur specially.

HOUSTON, SEE, BROWN, and STUART, JJ., dissent.

LYONS, Justice

(concurring specially).

Phillip and Debra Junkin sued Orkin Exterminating Co., Inc., in the Tuscaloosa Circuit Court on August 10, 2001. Phillip is a member of a class of Orkin customers certified by the Houston Circuit Court on November 17, 1997, in an action styled Cutler v. Orkin Exterminating Co., case no. CV-96-184. In its order certifying a class, the trial court in Cutler narrowed the scope of the action to claims alleging economic loss only. The trial court ordered that notice of the right to decline to participate in the class action by opting out be given to all class members by mail and publication.

The JunMns’ separate action against Or-kin in the Tuscaloosa Circuit Court seeks compensatory and punitive damages arising out of the same relationship with Or-kin. The scope of relief claimed in this proceeding goes far beyond the economic-loss claims to which the Cutler litigation has been confined.

Orkin filed a motion for abatement of the Tuscaloosa County action, relying upon § 6-5-440, Ala. Code 1975, which provides:

“No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pen-dency of the former is a good defense to the latter if commenced at different times.”

The trial court denied the motion. Orkin has filed a petition for a writ of mandamus directing the trial court to abate those proceedings.

Orkin has not made a copy of the notice mailed to members of the class in Cutler a part of the materials in this proceeding. According to the materials before us, Phillip was mailed a copy of the notice, and notice was also given by publication. We also do not have before us any specimens of the published notice. I am constrained to concur to deny the petition as to Phillip because Orkin has failed to show that it has a clear legal right to the extraordinary writ. See Ex parte Maxwell, 812 So.2d 333, 334-35 (Ala.2001).

Without the materials dealing with the notice before us, we are left to speculate as to the content of the notice. While it is unlikely that the notice deviated from the requirements set forth by the trial court and that Orkin overlooked the discrepancy, the writ would lose its extraordinary status if we accommodated petitioners by making favorable assumptions about the content of critical documents not before us.

I also concur to deny the petition as to Debra. We have no basis on which to conclude that she was mailed a copy of the notice, nor do we know the contents of any publication she might have seen.

I express no opinion concerning the propriety of the trial court’s order denying Orkin’s motion for abatement of the Tuscaloosa County action based upon § 6-5-440, Ala.Code 1975.

JOHNSTONE, J., concurs.

HARWOOD, Justice

(concurring specially).

I concur in the denial of the petition for a writ of mandamus. Critical to my decision in that regard is the fact that nowhere in the materials submitted by petitioner, i.e., the text of, and the exhibits attached to, (1) the petition for the writ of mandamus filed by Orkin Exterminating Co., Inc.; (2) “Plaintiffs Answer and Brief in Opposition to Defendants’ Petition for Writ of Mandamus”; and (3) “Orkin Exterminating Co., Inc.’s Reply Brief in Support of its Petition for Writ of Mandamus,” are we informed as to the text, or the content, of the notices provided to the eligible class members. The trial judge made the following specific observation and directive in his “Order Granting Class Certification”:

“If a potential class member in Alabama has actual unreimbursed physical damages claims against Orkin, he or she is very likely going to opt out of the Class here certified. Any mailed form of the Class Notice which is approved by the Court shall advise Orkin customers as to the limitations on the recovery herein sought.”

The “Notice” section of the order directed class counsel to submit to the court “a proposed form of mailed notice of the pen-dency of this class action; a summary notice for publication purposes; a proposed notice plan for dissemination of class notice; and a proposed notice order.”

Included as an exhibit to Orkin’s reply brief is a copy of the trial court’s “Order Directing Class Notice” dated February 5, 1998. In that order the court stated that it had determined that it was appropriate to approve a submitted form to be mailed to the class members and a “summary published notice”; the order further stated that class counsel were “authorized and directed to disseminate mailed and published notice as soon as practical.” This order does not provide any information concerning the content of any of those notices. In its order granting class certification, the trial court noted that “[t]he Plaintiffs have emphasized at the class hearing that they sue on behalf of Alabama customers only for the economic losses in respect to the contract charges (including interest thereon), and not for the individualized home structural physical damage claims.” The court then stated in the conclusion section of its order that “[ejxcluded from the Class are ... (g) the claims for damages of any Class member that are based on the amount of physical damage or loss to their homes or structures from Termite infestation.”

Orkin attaches as an exhibit to its petition the affidavit of a paralegal working for Orkin’s counsel, advising that “[following the end of the opt-out ... I looked through all of the opt-out forms filed with the clerk of the aforesaid court and did not find a form containing any of the following names: Phillip Junkin, Debra Junkin.” Orkin attaches as an exhibit to its reply brief the affidavit of another paralegal, employed by lead counsel for the plaintiffs, attesting that she “was involved in assembling the envelopes and class action notice for mailing” and that the notice “was inserted into in the envelopes, labeled, sorted for mailing, and taken over to the main downtown Birmingham post office for mailing.” Orkin asserts in the reply brief that “[t]he list of approximately 48,000 names and mailing addresses included plaintiff Phillip Junkin’s name and address,” attaching as an exhibit a page purported to represent “Class List, p. 1431,” and on which is listed the name of Phillip Junkin and the address of “15326 Tierce Lake Road, Northport, AL 35475.” Apparently, notice was sent only to Phillip Junkin and not his wife and coplaintiff, Debra Junkin.

Given that we do not know what the mailed notice sent to Phillip Junkin advised him concerning the nature of the class and the nature of the included, as well as excluded, claims, and that we do not know what it stated in compliance with the trial judge’s order that it should “advise Orkin customers as to the limitations on the recovery herein sought” and their rights to opt out, I cannot conclude that Phillip Junkin’s failure to opt out of the class action represented his intent to forgo his “actual unreimbursed physical damages claims against Orkin.” Moreover, I certainly cannot conclude that Debra Junkin is prosecuting a second “same” action, inasmuch as a class notice was sent only to Phillip Junkin. In other words, I cannot agree that Orkin has sustained the burden it bears in petitioning for the writ of mandamus, of showing that there is “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.” Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998), cert. denied, 528 U.S. 818, 120 S.Ct. 59, 145 L.Ed.2d 52 (1999). See also Ex parte Bailey, 814 So.2d 867 (Ala.2001).

JOHNSTONE, J., concurs.

HOUSTON, Justice

(dissenting).

Alabama Code 1975, § 6-5-440, provides that a party may not prosecute two actions in the courts of this State at the same time for the same cause and against the same party. Junkin v. Orkin Exterminating Co. (CV-2001-1038, Tuscaloosa Circuit Court), and Cutler v. Orkin Exterminating Co. (CV-96-184, Houston Circuit Court), contain the same parties and arise out of the same nucleus of operative facts. (See Orkin’s petition for writ of mandamus, pp. 9-10; Equity Res. Mgmt. Co. v. Vinson, 723 So.2d 634 (Ala.1998); Smith v. Scott Paper Co., 620 So.2d. 976 (Ala.1993); Crutcher v. Wynn, 591 So.2d 453, 454 (Ala.1991), quoting NAACP v. Hunt, 891 F.2d 1555, 1561 (11th Cir.1990).) Therefore, because the pendency of the first action (Cutler v. Orkin) is a good defense to this subsequently filed action (Ex parte University of South Alabama Foundation, 788 So.2d 161 (Ala.2000), and Ex parte Speedee Cash of Alabama, Inc., 806 So.2d 389 (Ala.2001)), this subsequently filed action must be dismissed pursuant to Alabama Code 1975, § 6-5-440.

I would grant the petition and issue the writ of mandamus. Therefore, I must dissent.

BROWN, J., concurs.  