                 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 BUFFINGTON
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, Willie McIntosh, and Rann McGraw,

individually 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 Ballard 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 removed the case to federal court and answered the first

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

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

raised the following defenses: (1) that the parties had 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 statute 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 emergency 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 filed by filing its motion

to dismiss 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 arbitration 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 7th

order to certify the order for interlocutory appeal in accordance 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.

                                                  FACTS




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¶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

five 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 “fraudulently or

negligently induced 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 that the introduction of long term contracts were

introduced due to the 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 series 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:


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         SF was represented by Joe F. Sanderson, Jr., and the Mississippi Contract
Poultry Growers Association (MCPGA) advocated the interests of the growers.              Larry
McKnight served as the president and executive director of MCPGA. The MCPGA also
selected one contract grower with each poultry manufacturer to participate in the negotiations.


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

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

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

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

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

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

the meeting with SF and committing 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 raised 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 contracts 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 Plaintiffs’ suit is an attack on

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

federally-regulated) practice of ranking broiler growers on objective measures of performance

and rewarding the growers 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,


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processes the chicken, and 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 is 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 modernize to compete with newer farms and include new equipment required by

SF.

¶14.    On appeal, 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 alleged promises
        made by Sanderson Farms before entering 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

knowingly making false representations about their future income, costs, expenses, equipment

requirements, company policies, and working relationships.”          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 suffered


                                                  6
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

tolled 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 Ballard action,

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 their 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, between June 1993, and the present, [the]

Defendant [SF] has fraudulently and or negligently induced into housing, feeding and providing

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

generated by said flocks and who have been compensated under the payment method

established by the Defendant.” (emphasis added).

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¶18.   In the Ballard action, the Plaintiffs 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 names, dates, places,
       persons present, other witnesses and pertinent documents] each and every
       statement, illustration, hand out or other communication whatsoever [including
       omissions of material facts] 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) the 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 ranking system until 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 growers
       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:

       Approximately twenty 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 that here is what one grower
       made, here is what another grower made and just kept on and on with some what
       I thought were good and reasonably high figures. . . . We thought we would have
       a good income, be at home and be our own boss. There were a lot of things we


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        were not told before committing to this endeavor. . . . We were not told that we
        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.    According 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 chicken 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 we would compete with other growers, that
        chick quality would affect our performance, and most importantly we were never
        told that we would 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 Agreement” effective January 1, 1997, when the new contracts were

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

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

a Grower’s Base Pay 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 10, 1997; Charolett N. Hathorn signed her payment schedules effective

February 10, 1997, August 11, 1998, January 1, 2000, and July 18, 2001; and Leroy Spring



                                                9
signed his payment schedules effective 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 Penalty,” 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 understood and agreed that the bonus

provisions of this Agreement shall 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 jurisdiction and/or to compel arbitration

and/or for change of venue filed in the Austin action, SF requested the trial court to grant its

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

granted as they are barred by the applicable statute of limitations and/or the doctrine of laches.

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

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

        Plaintiffs have accepted the benefits of their respective Hatching Egg
        Producer’s Agreements, and had done so for five and a half years prior to
        filing this civil action on August 2, 2002, as shown by the financial
        spreadsheet. Exhibit 28 received into evidence on the afternoon of November
        18, 2003. Plaintiffs are estopped and precluded from challenging the HEP
        Agreements or any of the terms and provisions thereof.

(emphasis added).



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¶26.     SF further contends that the Plaintiffs 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 Ballard action denied SF’s affirmative defense of statute 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 So.2d 43, 45 (Miss.

1999) (citing Ellis v. Anderson Tully Co., 727 So.2d 716, 718 (Miss. 1998)). See 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 concerning 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 within 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).

                                                    11
¶31.    The Plaintiffs claim that SF fraudulently induced them into the contract containing the

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

matters that 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

arbitration. 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 above, 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 statute        of    limitations,    the   Plaintiffs   intertwine   fraudulent   concealment   into   their

contentions that they were fraudulently induced 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 concealment, “there must be shown some act or conduct

of an affirmative nature designed to prevent and which does prevent discovery of the claim.”

Reich v. Jesco, Inc., 526 So.2d 550, 552 (Miss. 1988). In Stephens, 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 prevented

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

cause of action for fraudulent concealment accrues when the person, with reasonable diligence,


                                                           12
first knew or first should 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 simply will not suffice. See Wingerter v.

Brotherhood Prods., Inc., 822 So.2d 300, 303 (Miss. Ct. App. 2002) (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.); See also

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

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

diligence 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 reasons stated herein, we find that the statute of limitations operates here

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

failing to dismiss 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 of




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Sanderson Farms, Inc., finally dismissing the amended complaints and the Ballard 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.




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