IN THE SUPREME COURT OF MISSISSIPPI

NO. 2002-IA-01938-SCT

SANDERSON FARMS INC. (PRODUCTION

DIVISION)

v.

TANYA BALLARD, RANN McGRAW AND WILLIE

McINTOSH

DATE OF JUDGMENT: 11/22/2002

TRIAL JUDGE: HON. J. LARRY BUFFINGTON

COURT FROM WHICH APPEALED: LAWRENCE COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANT: W. SCOTT WELCH, III

ROBERT M. FREY

JOE DALE WALKER

JAMES LAWTON ROBERTSON

HENRY E. CHATHAM, JR.

ATTORNEY FOR APPELLEES: JOHN DUDLEY BUTLER

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: REVERSED AND RENDERED - 10/06/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

CONSOLIDATED WITH

NO. 2003-IA-02490-SCT

SANDERSON FARMS, INC

.

v.

KENNY AUSTIN, CHARLETT HATHORN AND

LEROY SPRING

DATE OF JUDGMENT: 06/17/2004

TRIAL JUDGE: J. LARRY BUFFINGTON2

COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CHANCERY

COURT

ATTORNEYS FOR APPELLANT: JAMES LAWTON ROBERTSON

HENRY E. CHATHAM, JR.

ROBERT M. FREY

W. SCOTT WELCH, III

JOE DALE WALKER

ATTORNEY FOR APPELLEES: JOHN DUDLEY BUTLER

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: REVERSED AND RENDERED - 10/06/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE WALLER, P.J., EASLEY AND CARLSON, JJ.

EASLEY, JUSTICE, FOR THE COURT:

PROCEDURAL HISTORY

¶1. On September 26, 2000, Tanya Ballard, Wi llie McIntosh, and Rann McGraw,

indi vidually and as class representatives (Ballard), independent contractor broiler growers,

filed suit against Sanderson Farms, Inc. (SF) in the Chancery Court of Lawrence County,

Mississippi. On August 2, 2002, Kenny Austin, Charolett N. Hathorn, and Leroy Spring,

individually and as class representatives (Austin), independent contractor hatching egg growers,

filed suit against Sanderson Farms, Inc. (SF) in the Chancery Court of Jefferson Davis County,

Mississippi. The Plaintiffs in both the B allard and Austin actions were represented by the

same attorneys at trial and now on appeal. SF, however, was represented by different counsel

in the two actions at trial, as well as, on appeal. The Honorable J. Larry Buffington,

Chancellor, presided over both the Ballard action and the Austin action.

¶2. In the Ballard action

, SF re moved the case to federal court and answered the first

amended complaint. The case was remanded to the chancery court. Ballard received leave of3

court to file a second amended com plaint. SF answered the second amended complaint and

raised the following defenses: (1) that the parties ha d agreed to arbitrate; (2) that the circuit

court, not the chancery court, had jurisdiction; and (3) that venue was improper. SF also raised

the defense that Ballard’s claims were barred by sta tute of limitations, the plaintiffs were

misjoined, and the plaintiffs could not represent a class.

¶3. The trial court denied all of SF’s affirmative defenses, including, arbitration, subject

matter jurisdiction, venue, and statute of limitations. SF filed its petition for permission to

appeal from interlocutory order and emergen cy motion to stay. The trial court denied the

petition for certification and stay. This Court granted SF’s request for interlocutory appeal.

See M.R.A.P. 5.

¶4. In the Austin action, SF responded to the Plaintiffs’ complaint file d by filing its motion

to dis miss and/or to transfer jurisdiction and/or to compel arbitration and/or for change of

venue. On June 7, 2004, the trial court entered its order overruling SF’s motion to dismiss,

transfer, compel arbitrati

on and for change of venue. Based on SF’s ore tenus motion to

modify or amend the trial court’s order the trial court entered its order amending the June 7 t h

order to certify the order for interlocutory appeal in acc ordance with M.R.A.P. 5 (a) and stay

all further proceedings pending this Court’s action. This Court entered its order accepting SF’s

notice of appeal and dismissing the alternative petition for interlocutory appeal as moot.

¶5. This Court consolidated the Austin appeal with the Ballard appeal and stayed all trial

court proceedings pending the outcome of the appeal.

FACTS1 SF was represented by Joe F. Sanderson, Jr., and the Mississippi Contract

Poultry Growers Asso ciation (MCPGA) advocated the interests of the growers. Larry

McKnight served as the president and executive direc tor of MCPGA. The MCPGA also

s elected one contract grower with each poultry manufacturer to participate in the negotiations

.

4 ¶6. SF, based in Laurel, Mississippi, has three operating subsidiaries: SF (Food Division),

SF (Processing Division), and SF (Production Division). The SF (Production Division) has

fiv e operating divisions in Laurel, Collins, Hazlehurst, and McComb, Mississippi, and in Bryan,

Texas. The contract growers are divided into three categories: (1) pullet growers, (2) hatching

egg or breeder growers, and (3) broiler growers.

¶7. Both the Ballard (broiler growers) and the Austin (hatching egg growers), collectively

“the Plaintiffs”, argue on appeal that the two cases involve claims that SF “fra udulently or

negligently induce d them and other similarly situated growers to enter into contracts to raise

chicken flocks by making false representations about their potential incomes and the costs and

requirements involved.”

¶8. In the Austin action, SF asserts t hat the introduction of long term contracts were

introduced due to th

e growers’ desire to have more financial security than provided by the

flock-to-flock agreements. Many of the concerns in the industry came before the Mississippi

Legislature in 1996. Independent of SF’s process for developing new agreements with its

growers, representatives of the poultry manufacturers and representatives for the growers

began a s eries of meetings. The Governor’s Special Poultry Committee considered contract

issues that were raised by producers and growers. 1

¶9. SF scheduled meetings with its some 600 growers, 110 of which were hatching egg

growers. Meetings with growers in each of SF’s divisions were scheduled in various towns:5

Laurel, Collins, Hazlehurst and McComb . On November 19, 1996, the Governor’s Special

Poultry Committee published a series of agreements on various issu es. Each poultry company

was to have some type of a long-term contract.

¶10. The SF growers were sent a memorandu m addressed by grower spokesman, Mike

Ballard, husband of Tanya Ballard, the lead plaintiff in the B allard action. The memorandum

advised the growers to consult an attorney to review the long-term contract before attending

the meeting with SF and c ommitting to the long-term agreement. The growers were also

advised that they could bring their attorneys to the meeting. The growers were instructed to

pay close attention to the questions rai sed about arbitration and certain phrases in the contract.

¶11. On December 30, 1996, Sanderson sent a letter to the growers inviting them to a group

meeting to discuss the proposed new long-term contracts. SF asserts that each grower was

sent a copy of the draft agreement, invited to consult an attorney, and bring a lawyer to the

meeting. The group meetings for the hatching egg growers (Austin) regarding the new

proposed c o ntracts took place on January 15/16, 1997. The hatching egg contracts (Austin)

were signed and became effective February 1, 1997. The broiler (Ballard ) contracts were

signed and became effective January 1, 1997.

¶12. On appeal, SF contends, in the Ballard action, that the Pl aintiffs’ suit is an attack on

vertical integration by attacking an essential part of that system, the nearly-universal (and

fe d erally-regulated) practice of ranking broiler growers on objective measures of performance

and rewarding the grow

ers that perform best. SF defines vertical integration as a system where

the company

/processor supplies inputs such as the chicks, the feed and medicine, furnishes

technical advice, catches the chickens, transports the chickens to the processing plant,6

processes the chicken, a nd sells the chicken. The grower/farmer supplies the chicken houses

and the skilled labor. The growers’ pay is based upon a competitive scale where the growers

are ranked upon their standardized costs, i.e., the more efficiently a flock is grown (the lower

the standard production cost per pound), the higher the grower is ranked.

¶13. SF argues that ranking i s essential to provide the growers incentive to make efficient

use of the company-supplied inputs in order for vertical integration to work. The growers

contend that the ranking system is inherently unfair based the variances in the quality of the

chickens delivered, timing of deliveries, variances in the feed delivered and increased grower’s

expense to m

odernize to compete with newer farms and include new equipment required by

SF.

¶14. On app eal, SF raises various assignment of errors. However, as the Plaintiffs’ claims

involve the alleged fraudulent inducement or misrepresentations by SF, the following issue is

dispositive of the case:

Whether the Plaintiffs were fraudulently induced based on alle ged promises

made by Sanderson Farms before enteri ng into a contract containing an

arbitration provision.

DISCUSSION

¶15. Both set of Plaintiffs contend that “that Sanderson Farms fraudulently or negligently

induced them into housing and tending to flocks and gathering and/or storing hatch eggs by

knowingl y making false representations about their future income, costs, expenses, equipment

requirements, company policies, and working rela tionships.” That is, the Plaintiffs contend

that SF wrongfully induced them into executing the contracts on the basis of and in reliance

of fraudulent misrepresentations. As such, the Plaintiffs contend that they have suffered7

damages. The Plaintiffs filed suit seeking injunctive relief, a full accounting and creation of

a constructive trust and an equitable lien. SF argues that the Plaintiffs’ allegations of

fraudulent inducement and misrepresentation to enter into the contracts are barred by the

statute of limitations. On appeal, the Plaintiffs contend that the statute of limitations was

toll e d by SF’s fraudulent concealment. The Plaintiffs’ allegation of concealment is solely

based on the contention that SF has complete control of all data and other information

concerning the ranking system that is used to defraud the Plaintiffs.

A. Fraudulent Inducement/Statute of Limitations

¶16. The Plaintiffs contend that they were fraudulently induced by SF. In the B allard act ion,

the Plaintiffs allege in their complaint, filed September 26, 2000, that “the class of Plaintiffs

on behalf of whom this action is brought consists of all Mississippi residents to whom,

between, on or about November 1981[, ] and the present , [the] Defendant [SF] induced into

growing chickens for

it and paid compensation under the so called ‘ranking system.’”

(emphasis added).

¶17. Similarly, the Plaintiffs in the Austin action allege in the ir complaint, filed August 2,

2002, that they were damaged by SF’s “systematic scheme of compensating Plaintiffs pursuant

to [the] Defendant’s method of payment.” Specifically, the complaint alleges that “this action

. . . consists of all Mississippi residents who, b etween June 1993, and the present

, [the]

Defendant [SF] has fraudulently and or negligently induced into housing, feeding and pro v iding

water for Sanderson’s br eeder flocks and gathering, grading, packing and storing the hatch eggs

generated by said flocks and who have been compensated under the p a yment method

established by the Defendant.” (emphasis added).8

¶18. In the Ballard action, the Plainti ffs filed their answers to interrogatories propounded

by SF. Each of the Plaintiffs were asked in Interrogatory No. 10:

State with as much particularity as possible [including nam es, d ates

, places,

persons present, other witnesses and pertinent documents] each and eve r y

statement, illustration, hand out or other communication whatsoeve r [including

omissions of material f a cts] that you claim constituted a representation by

Sanderson Farms [including the persons uttering or providing same] and which

you claim was (a) false, (b) misleading, (c ) known by Sanderson to be such, (d)

upon which Sanderson intended for you to rely, (e) what you claim that you did

or refrained from doing in reliance thereon, (f) all persons with discoverable

knowledge of your reliance and (g) t he manner in which you claim to have been

harmed by your alleged reliance on each such representation.

(emphasis added).

¶19. Tanya Ballard responded that her dealings with SF growing and selling chickens began

in 1993. According to Tanya, she was made various promises in 1993 when she started about

how much money she could make. She stated:

I did not find out about the ra nking system u ntil the first time I sold

chickens

. I did not know I would be ranked against the other growers, and for

me to do good my neighbor would have to do bad, along with the other growe r s

I sold with. I didn’t understand that I would be paid on feed conversion and cost,

and that would determine how much I got paid per pound. I never saw a

Sanderson contract until it was time to get my birds. I wasn’t told that it would

be possible for me to make less than $100,000 per year back in 1993

.

(emphasis added). In her affidavit, Tanya stated that she entered into her first contract with SF

in or near February, 1994.

¶20. Rann McGraw responded to the interrogatory as follows:

A pproximately t wenty years ago

, my wife and I sat down with Mr. Gibson to

talk about a letter of intent and growing chickens for Sanderson Farms. Mr.

Gibson pulled out papers from his desk and said th at here is what one grower

made, here is what another grower made and just kept on a nd on with some what

I thought were good and reasonably hig h figures. . . . We thought we would have

a good income, be at

home and be our own boss. There were a lot of things we9

were not told before committing to this endeavor. . . . We were not told that w e

should hope our neighbors do bad, so that we can do good

.

( emphasis added). McGraw’s affidavit provided that in or near November, 1982, he entered

into his original contract with SF.

¶21. Acco rding to Willie McIntosh’s affidavit, he entered in his original agreement with SF

in or near February, 1990. McIntosh responded to Interrogatory No. 10 as follows:

In the early part of 1992

, my wife and I built four chicke n houses under a

Sanderson Farm’s contract.

. . . When we first wanted to build, we were never

told of any major upgrades that would be forced upon us. We were not told how

the ranking system worked, how w e would c ompete with other growers

, that

chick quality would affect our performance, and most importantly we were never

told that we wou

ld never be able to pay off our first loan before being required

to do major upgrades.

. . . One thing that was most noticeably left out was the

fact that we would be competing against other growers that had different feed

from different feed mills.

(emphasis added).

¶22. Furthermore, the record reflects that each of the broiler growers (Ballard) signed a

“Broiler Production Agreemen t” effective January 1, 1997, when the new contracts were

executed. In those agreements, the payment standards schedule contain a “Performance

Adjustment Factor” p rovision. In that provision, it states that there will be “an adjustment to

a Grower’s Base Pa y to reflect the Grower’s performance either above or below the Weighted

Average Production Cost Per Pound.”

¶23. Each of the hatching egg growers (Austin) similarly signed a “Hatching Egg

Production

Payment Schedule” with various effective dates. Kenny Austin signed his payment schedule

effective February 1 0, 1997; Charolett N. Hathorn signed her payment schedules effective

February 10, 1997, August 11, 1998, January 1, 2000, and Jul y 18, 2001; and Leroy Spring10

signed his payment schedules effec tive February 1, 1997, March 25, 1999, and January 1,

2000.

¶24. The hatching eggs growers’ schedule differs from the broiler’s payment schedule.

However, it contains provisions addressing “Hatchability Bonus and Penalty,” “Feed

Conversion Bonus and Pen alty,” and “Bonus/Penalty Calculations.” The payment schedule

contains a “Minimum Base Payment For Hatching Eggs and Commercial Eggs.” In the

“Bonus/Penalty Calculations” provision, it states “[i]t is understoo d and agreed that the bonus

provisions of this Agreement shal l be calculated from records maintained by Sanderson, such

as total dozen graded hatching eggs produced and the percentage of hatchability and feed used

by said chickens.”

This provision is contained in all versions of the hatching egg payment

schedules, including the payment schedules effective in February 1997.

¶25. In SF’s motion to dismiss and/or to transfer j urisdiction and/or to compel arbitration

and/or for chang e of venue filed in the A ustin action, SF requested the trial court to grant its

motion to dismiss the Plaintiffs’ claims for failure to state a claim up on which relief may be

g ranted as they are barred by the applicable statute of limitations and/or the doctr ine of laches.

In SF’s second supplement to its motion to dismiss, and/or to tran sfer jurisdiction and/or to

compel arbitration and/or for change of venue, SF states:

Plaintiffs have accepted the benefits of their res pective Hatching Egg

Producer’ s Agreements, and had done so for f ive and a half years prior to

filing this civil action on August 2, 2002 , as shown by the financial

spreadshee t. Exhibit 28 received into evidence on the afternoon of November

1 8, 2003. Plaintiffs are estopped and precluded from challenging the HEP

Agreements or any of the terms and provisions thereof.

(emphasis added).11

¶26. SF further contends that the Plainti ffs had their opportunity to complain about a lack

of meaningful choice among the many poultry producers, the costs associated with arbitration

and to offer their evidence to support their position. SF argues that the Plaintiffs have waited

too long to now to contest the arbitration agreement in the long term contracts they entered

years ago.

¶27. The trial court in the B allard action denied SF’s affirmative defense of sta tute of

limitations. Without providing any explanation, the trial court stated “[t]he Court also finds

that none of [the] Plaintiffs’ allegations as set forth in this action are barred by any applicable

statute of limitation.” In the Austin action, the trial court denied SF’s motion to dismiss.

¶28. “This Court uses a de novo standard of review when passing on questions of law

including statute of limitations issues.” ABC Mfg. Corp. v. Doyle

, 749 S o.2d 43, 45 (Miss.

1999) (cit ing Ellis v. Anderson Tully Co. , 727 So.2d 716, 718 (Miss. 1998)). S ee also Sarris

v. Smith , 782 So.2d 721, 723 (Miss. 2001).

¶29. “[I]n Mississippi a claim of fraud has a three-year statute of limitations in accordance

with Miss. Code Ann. § 15-1-49 con cerning actions without a prescribed period of limitation.”

Stephens v. Equitable Life Assur. Society of U.S. , 850 So.2d 78, 82 (Miss. 2003). Miss.

Code Ann. § 15 -1-49 (1) provides: “(1) All actions for which no other period of limitation is

prescribed shall be commenced w ithin three (3) years next after the cause of such action

accrued , and not after.” (emphasis added).

¶30. A fraud claim “accrues upon the completion of the sale induced by such false

representation, or

upon the consummation of the fraud. . . .” Dunn v. Dent

, 169 Miss. 574,

153 So. 798 (1934).12

¶31. The Plaintiffs claim that SF fraud ulently induced them into the contract containing the

arbitration agreement. Based on the record, it is clear that the Plaintiffs were aware of the

matters t hat were allegedly misrepresented to them by SF well in excess of three years before

the suits were filed. Therefore, we find that Miss. Code Ann. § 15-1-49 operates here to bar

the Plaintiffs’ claims. As such, there are no disputes to remand to the trial court to compel

arbitrat ion. Therefore, there is no need to address the Plaintiffs’ contention that the arbitration

provision is unconscionable, invalid and unenforceable.

B. Fraudulent Concealment

¶32. As discussed a

bove, the Plaintiffs’ fraudulent inducement claims are barred by statute

of limitations. In response to SF’s assertion that the fraudulent inducement claims are barred

by statu te of limitations, the Plaintiffs intertwine fraudulent concealment into their

contentions that they were fraudulently i n duced by SF into the contracts containing the

arbitration provision. However, the Plaintiffs make no assertions as to any affirmative act by

SF to conceal anything. Therefore, the Plaintiffs fail to meet the elements required to

establish fraudulent concealment in order to toll the statute of limitations.

¶33. In order to establish fraudulent con cealment, “there must be shown some act or conduct

of an affirmative natu

re designed to prevent and which does prevent discovery of the claim.”

Reich v. Jesco, Inc.

, 526 So.2d 550, 552 (Miss. 1988). In S tephens

, 850 So.2d at 83-84, this

Court held that in cases with a claim of fraudulent concealment there exists “a two-fold

obligation to demonstrate that (1) some affirmative act or conduct was done and pr e vented

discovery of a claim, and (2) due diligence was preformed on their part to discove r it.” The

cause of action fo r fraudulent concealment accrues when the person, with reasonable diligence,13

first knew or first shou

l d have known of the fraud. Miss. Code Ann. § 15-1-67; Stephens

, 850

So.2d at 81. Miss. Code Ann. § 15-1-67 provides:

If a person liable to any personal action shall fraudulently conceal the cause of

action from the knowledge of the person entitled thereto, the cause of action

shall be deemed to have first accrued at, and not before, the time at which such

fraud shall be, or

with reasonable diligence might have been, first known or

discovered.

¶34. As to the first prong to establish fraudulent concealment, the Plaintiffs fail to

demonstrate any affirmative act on the part of SF to conceal any information. The Plaintiffs

do not provide any details of how SF concealed its alleged fraudulent actions. Merely alleging

that the other side has complete control of the data si m ply will not suffice. S ee Wingerter v.

Brotherhood Prods., Inc.

, 822 So.2d 300, 303 (Miss. Ct. App. 2 002) (In the context of

invoking M.R.C.P. 56 (f), diligence must be shown in what steps have been taken to obtain

access to the information allegedly in the exclusive possession of the other party.); S ee also

Marx v. Truck Renting & Leasing Ass’n, Inc. , 520 So.2d 1333, 1344 (Miss. 1987).

¶35. The sec ond prong to establish fraudulent concealment requires the exercise of due

diligenc e to obtain the information. Here, the Plaintiffs do not demonstrate any action by them

to obtain any of the allegedly concealed information.

CONCLUSION

¶36. For all the reas ons stated herein, we find that the statute of limitations operates here

to bar the Plaintiffs’ claims and is disposit ive of the cases. Therefore, the trial court erred in

failing to dismi ss the Plaintiffs’ claims and enter judgments in favor of Sanderson Farms, Inc.

We reverse the judgments of the trial court, and we render judgments here in favor of14

Sanderson Farms, Inc., fin ally dismissing the amended complaints and the B allard and Austin

actions with prejudice as barred by the statute of limitations.

¶37. REVERSED AND RENDERED.

SMITH, C.J., WALLER AND COBB, P.JJ. , CARLSON, DICKINSON AND

RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.