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Georgia-Pacific Consumer Products, L.P. v. Ratner

Supreme Court of Georgia

July 11, 2014

RATNER et al

Certiorari to the Court of Appeals of Georgia -- 323 Ga.App. 203.

Hull Barrett, David E. Hudson, William J. Keogh III, Ellis, Painter, Ratterree & Adams, Ryburn C. Ratterree, Tracy A. O'Connell, for appellant.

Bell & Brigham, John C. Bell, Jr., Oliver Maner, Benjamin M. Perkins, Timothy D. Roberts, Melissa L. Bailey, for appellees.

Brinson Askew Berry Seigler Richardson & Davis, Robert M. Brinson, Norman S. Fletcher, Troutman Sanders, William M. Droze, Douglas A. Henderson, McNatt, Greene & Peterson, Hugh B. McNatt, Randall D. Quintrell, Robbins, Russell, Englert, Orseck, Untereiner & Sauber, Alan E. Untereiner, Matthew M. Madden, Skadden, Arps, Slate, Meagher & Flom, John H. Beisner, Geoffrey M. Wyatt, Jessica D. Miller, GreenLaw, Steven D. Caley, amici curiae.

BLACKWELL, Justice. All the Justices concur, except Benham and Hunstein, JJ., who dissent.


Page 420

Blackwell, Justice.

The named plaintiffs in this class action own real property in Mallard Pointe, a residential neighborhood in Effingham County. Nearby, since 1986, Georgia-Pacific Consumer Products, LP has operated the Savannah River Mill, a facility that includes more than a hundred acres of sludge fields, into which Georgia-Pacific puts the solid waste generated at the Mill. As this solid waste decomposes, the plaintiffs say, hydrogen sulfide gas is released from the sludge fields. Alleging that their real property has been contaminated by this gas -- and that, as a result, they have been exposed to noxious odors, their use and enjoyment of their property has been impaired, and the value of their property has diminished -- the plaintiffs sued Georgia-Pacific for nuisance, trespass, and negligence. The plaintiffs sought not only to recover monetary damages for themselves, but they proposed to seek relief for a class of other nearby property owners.

The trial court permitted them to do so, certifying a class that consists of the owners of 67 parcels of real property in and around Mallard Pointe.[1] Georgia-Pacific appealed

Page 421

the certification of the [295 Ga. 525] class,[2] and the Court of Appeals affirmed, Georgia-Pacific Consumer Products, LP v. Ratner, 323 Ga.App. 203, 203-212 (746 S.E.2d 829) (2013), although three of its judges dissented. See id. at 213-221 (Branch, J., dissenting). Upon the petition of Georgia-Pacific, we issued a writ of certiorari to review the decision of the Court of Appeals. We conclude that the trial court abused its discretion when it certified the class, and we reverse the judgment of the Court of Appeals.

1. " The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only," Comcast Corp. v. Behrend, ___ U.S. ___, ___ (II) (133 S.Ct. 1426, 185 L.Ed.2d 515) (2013) (citation and punctuation omitted), and consistent with its exceptional nature, a class action is permitted only in the limited circumstances described in OCGA § 9-11-23.[3] The party seeking to represent a class " bear[s] the burden of proving that class certification is appropriate." Carnett's, Inc. v. Hammond, 279 Ga. 125, 127 (3) (610 S.E.2d 529) (2005) (citation omitted). See also McGarry v. Cingular Wireless, LLC, 267 Ga.App. 23, 25 (1) (599 S.E.2d [295 Ga. 526] 34) (2004). In this case, to permit the certification of a class of plaintiffs, the named plaintiffs had to satisfy each of the four requirements described in OCGA § 9-11-23 (a) -- numerosity,[4] commonality,[5] typicality,[6] and adequacy of representation[7] -- as well as the predominance requirement of OCGA § 9-11-23 (b) (3).[8] See American Debt Foundation

Page 422

v. Hodzic, 312 Ga.App. 806, 808 (720 S.E.2d 283) (2011). To satisfy these requirements, it was not enough for the plaintiffs simply to have alleged that they were satisfied. Wal-Mart Stores, Inc. v. Dukes,

Page 423

___ U.S. ___, ___ (II) (A) (131 S.Ct. 2541, 180 L.Ed.2d 374) (2011). See also Fortis Ins. Co. v. Kahn, 299 Ga.App. 319, 321-322 (1) (683 S.E.2d 4) (2009). Rather, the plaintiffs had to come forward with evidence to prove their satisfaction of the statutory requirements. See Dukes, ___ U.S. at ___ (II) (A). See also Jones v. Douglas County, 262 Ga. 317, 324 (2) (418 S.E.2d 19) (1992); Rite Aid of Ga. v. Peacock, 315 Ga.App. 573, 574-575 (1) (726 S.E.2d 577) (2012).

Whether to certify a class is a matter committed to the discretion of the trial court, State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 499-500 (1) (556 S.E.2d 114) (2001), but any exercise of that discretion must comport with the statutory requirements. Moreover, the certification of a class is appropriate only to the extent that " the trial court is satisfied, after a rigorous analysis, that [the statutory requirements] have been satisfied." Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (III) (102 S.Ct. 2364, 72 L.Ed.2d 740) (1982). See also Rite Aid, 315 Ga.App. at 574-575 (1); Kahn, 299 Ga.App. at 321 (1). As a part of this rigorous analysis, " sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." Falcon, 457 U.S. at 160 (II). Indeed, as the United States Supreme Court has explained:

Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff's underlying claim. That [295 Ga. 527] cannot be helped. The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.

Dukes, ___ U.S. at ___ (II) (A) (citation and punctuation omitted). See also Rite Aid, 315 Ga.App. at 575 (1); McGarry, 267 Ga.App. at 25 (1).

Upon our review of the record, we conclude that the plaintiffs failed to come forward with evidence sufficient to show the commonality of the particular class that was certified. Georgia-Pacific raises some fair questions about typicality and predominance as well,[9] but we do not have to reach those questions today. Because commonality is lacking, the trial court abused its ...

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