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EX PARTE MASONITE CORP.6/28/1996
These petitions, all seeking extraordinary review of preliminary matters in a class action, are due to be denied. The action seeks damages based on alleged defects in exterior siding manufactured by the Masonite Corporation. Masonite's petitions for the writ of mandamus and for permission to appeal seek to have the class certification set aside, the circuit judge recused, and the plaintiffs' attorneys disqualified, all on the basis of contacts between the circuit judge and the plaintiffs' attorneys that Masonite asserts were improper.
The allegations of improper ex parte contacts are not substantiated by the materials before us. At the hearing on class certification, the circuit judge, Judge Robert G. Kendall, told the parties that, when he decided whether to grant class certification, he would notify the prevailing party and ask that party to draft a proposed order. Masonite did not object to this proposed procedure. After the judge decided to certify the class, the communications between the judge or his staff and the attorneys or their employees were the barest minimum necessary to notify the plaintiffs that the court had decided to certify the class and to effectuate the drafting of the certification order.
The plaintiffs filed their complaint in December 1994 and amended it in January 1995. Discovery and briefing on whether to certify a class proceeded from March through October 1995. A full hearing was held on class certification on October 16, 1995, at which Masonite presented expert
testimony and the attorneys for both sides argued at length for and against certification of a nationwide plaintiff class of owners of residences with Masonite siding. At the conclusion of the hearing, Judge Kendall stated:
"I have a considerable amount — additional amount of thinking to do. What I think now I propose to do is to when I reach a conclusion ask one side or the other to prepare an order for me, and I will do that without bothering the nonprevailing side, and put that in whatever form I like, and then circulate it to both sides."
On November 6, Judge Kendall notified Richard T. Dorman, one of the plaintiffs' attorneys, that he had decided in favor of class certification. One or two days later, Mr. Dorman had his secretary call the judge's office to ask whether to certify subclasses, and the answer came back, "No." A draft of the order was sent with a short cover letter, and the judge made changes and sent the order back. Someone in Mr. Dorman's office telephoned the judge's office and asked whether to send a copy of the order to the defendants and was told not to. The finished order was then delivered to Judge Kendall. Out of these events, Masonite counts 11 "ex parte" communications.
On November 15, 1995, Judge Kendall signed the order certifying the class. Later that day, and apparently without notice or knowledge that Judge Kendall had certified the class, Masonite filed a petition for removal to a federal court. On the plaintiffs' motion, the federal court remanded the cause in late January or early February 1996. On February 7, Masonite filed a motion to vacate the certification of the plaintiff class, asserting that the communications between the judge and Mr. Dorman to facilitate the drafting of the order had constituted ex parte communications, which are prohibited by Rule 3.5(b) of the Alabama Rules of Professional Conduct and Canon 3(A)(4) of the Alabama Canons of Judicial Ethics.
We note that footnote 2 of Masonite's February 7 motion to vacate states:
"The Alabama Canons of Judicial Ethics and the ABA Code of Judicial Conduct also condemn ex parte communications and require that courts not consider o
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Alabama Personal Injury Attorneys
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