Trust Co. Bank v. U.S. Gypsum Co.
| Decision Date | 21 January 1992 |
| Docket Number | No. 91-1255,91-1255 |
| Citation | 950 F.2d 1144 |
| Parties | , Prod.Liab.Rep. (CCH) P 13,029 TRUST COMPANY BANK, Plaintiff-Appellant, v. UNITED STATES GYPSUM COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Owen T. Palmer, Jr., Gulf Port, Miss. and Daniel A. Speights, Speights & Runyan, Hampton, S.C., for plaintiff-appellant.
Roy C. Williams, Bryant, Colingo, Williams & Clark, Pascagoula, Miss. and Tom Kenworthy, Morgan, Lewis & Bockius Philadelphia, Pa., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before KING, JOHNSON and EMILIO M. GARZA, Circuit Judges.
In this action filed in Mississippi state court and removed to the United States District Court for the Southern District of Mississippi, plaintiff Trust Company Bank complains that it has suffered damages from the presence of asbestos in a twenty-two year old building it owns in Georgia. The federal district court declined to grant relief, concluding that it lacked subject matter jurisdiction and, in the alternative, that the Mississippi statute of repose barred the plaintiff's action. On appeal, while we disagree that the district court lacked jurisdiction, we are persuaded that the Mississippi statute of repose precludes a judgment in the plaintiff's favor. Accordingly, this Court affirms.
Many years ago, when Hank Aaron was the hero of every teenage boy in Georgia and James Earl Carter, Jr. was still a farmer in Plains, the Trust Company Bank ("Trust") secured a contractor to erect a building in downtown Atlanta. In the construction of the building, the contractor used several fireproofing materials that contained asbestos, a carcinogen which after a long latency period can attack and then incapacitate the lungs and other vital body organs. The contractor finished construction of the Trust building in 1969.
The presence of asbestos in its building eventually forced Trust to institute an expensive abatement program. On June 30, 1989, to recover some of the expense of this abatement program, Trust filed a lawsuit in Mississippi state court against United States Gypsum Company ("USG"), the company which designed and manufactured the fireproofing materials that contained asbestos. Trust alleged that USG manufactured defective and unreasonably dangerous products with the knowledge that these products can release toxic asbestos fibers. USG removed the action to federal district court.
Five days after removal of the case to federal court, USG filed a motion for dismissal, contending that the court lacked subject matter jurisdiction because the case was a "local action" which should have been pursued in Georgia. The district court denied this motion. Undaunted, USG filed a motion for summary judgment, this time arguing that the Mississippi statute of repose barred the plaintiff's action. On September 27, 1990, the district court sua sponte reconsidered USG's motion for dismissal and, reversing its earlier decision, dismissed the plaintiff's action under Federal Rule of Civil Procedure 12(b)(1). In addition, and in the alternative, the district court granted USG's motion for summary judgment.
On October 9, 1990, Trust filed a "Motion to Reconsider" the district court's judgment against it. The district court denied this motion on February 1, 1991, and within thirty days thereafter, Trust filed its notice of appeal.
Trust raises two arguments: (1) that the district court erred in refusing to exercise subject matter jurisdiction over this case and (2) that the district court erred in concluding that the Mississippi statute of repose bars the plaintiff's action. Before turning to these arguments, however, we must consider whether this Court has acquired the requisite appellate jurisdiction over this case.
USG contends that Trust did not file a timely notice of appeal and, therefore, that this Court may not exercise its appellate jurisdiction. As a general rule, if a party desires to appeal an adverse judgment then it must file a notice of appeal within thirty days after entry of the judgment. Fed.R.App.P. 4(a)(1). 1 But if the party files a proper motion to alter or amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure, then the party must file its notice of appeal within thirty days after entry of the district court order that grants or denies its Rule 59(e) motion. Fed.R.App.P. 4(a)(4). 2
Plaintiff Trust filed its notice of appeal on March 4, 1991, within thirty days after entry of the district court order denying its "Motion to Reconsider." 3 As long as this "Motion to Reconsider" constitutes a Rule 59(e) motion, then Trust has beaten the deadline for filing its notice of appeal. This Court has ruled that a motion which challenges a prior judgment on its merits will be treated as a Rule 59(e) motion if it is served within ten days after entry of the judgment. Teal v. Eagle Fleet, Inc., 933 F.2d 341, 347 (5th Cir.1991). The plaintiff's "Motion to Reconsider," which unquestionably challenged the merits of the district court's judgment, was filed and served eight days after the district court entered its final judgment. 4 Accordingly, Trust's notice of appeal timely triggered the appellate jurisdiction of this Court.
USG further contends that, even if Trust filed a timely notice of appeal, Trust did not effectively appeal the order dismissing its action and granting summary judgment to the defendant. Rule 3(c) of the Federal Rules of Appellate Procedure provides that "[t]he notice of appeal ... shall designate the judgment, order or part thereof appealed from." Fed.R.App.P. 3(c). In its notice of appeal, Trust stated that it "hereby appeals ... from the Order refusing to alter or amend the September 27, 1990, Order dismissing the Plaintiff's action," Record at 264 (emphasis added), but did not state that it intended to appeal the district court order dismissing its action and granting summary judgment in favor of the defendant. If Trust intended to appeal the order dismissing its action and granting summary judgment, then it has not "designate[d] the judgment" from which it appeals. 5
But while Trust has breached the formal requirements of Rule 3(c), this error does not defeat its right to appeal the entire case. Interpreting notices of appeal liberally, this Court often has exercised its appellate jurisdiction--despite an improper designation under Rule 3(c)--where it is clear that the appealing party intended to appeal the entire case. See Osterberger v. Relocation Realty Service Corp., 921 F.2d 72, 73 (5th Cir.1991); Cates v. International Telephone & Telegraph Corp., 756 F.2d 1161, 1173 n. 18 (5th Cir.1985); Atlantic Coast Line R. Co. v. Mims, 199 F.2d 582, 583 (5th Cir.1952); cf. Foman v. Davis, 371 U.S. 178, 181 (1962) (). 6 Without question, Trust intended to appeal the entire case: while its notice of appeal did not specifically state that the plaintiff appealed the entire case, the notice of appeal specifically challenged the dismissal of Trust's action and the summary judgment in favor of the defendant. See Record at 264. We conclude that Trust's notice of appeal is effective and permits this Court to exercise its full appellate jurisdiction.
The district court dismissed this case because it concluded that the case was a "local action" which Trust should have brought in Georgia rather than Mississippi. Under the local action doctrine, a local action involving real property, as opposed to a transitory action, must be brought within the territorial boundaries of the state in which the land is located. Hayes v. Gulf Oil Corp., 821 F.2d 285, 287 (5th Cir.1987). The instant case, which Trust initiated in Mississippi state court, involves alleged property damages to a building in Georgia. If this case is indeed a local action, then the district court properly dismissed it.
The common law distinction between local actions and transitory actions finds its American roots in Livingston v. Jefferson, 15 F.Cas. 660 (C.C.D.Va.1811) (No. 8411). In Livingston, a Louisiana landowner sued former president Thomas Jefferson in a federal court in Virginia for an alleged trespass to his land. The venerable Chief Justice John Marshall, sitting as a circuit judge, dismissed the action. Emphasizing that "actions are deemed transitory, where transactions on which they are founded, might have taken place anywhere ... but are local where their cause is in its nature necessarily local," Justice Marshall determined that an action for trespass to land in Louisiana was local and could not be heard in a Virginia court. Id. at 664.
Since Livingston, the common law local action doctrine has become ingrained in American jurisprudence. State and federal courts alike have recognized and applied the rule. See, e.g., Louisville & N.R.R. v. Western Union Telegraph Co., 234 U.S. 369, 34 S.Ct. 810, 58 L.Ed. 1356 (1914); Ellenwood v. Marietta Chair Co., 158 U.S. 105, 107, 15 S.Ct. 771, 771, 39 L.Ed. 913 (1895); Hayes, 821 F.2d at 287; Humble Oil & Refining Co. v. Copeland, 398 F.2d 364, 367 & n. 5 (4th Cir.1968); Miller v. Miller, 715 S.W.2d 786, 788 (Tex.App.--Austin 1986, writ ref'd n.r.e.); Laslie v. Gragg Lumber Co., 184 Ga. 794, 193 S.E. 763, 765 (1937). Only a handful of jurisdictions have rejected the local action doctrine. See, e.g., Reasor-Hill Corp. v. Harrison, 220 Ark. 521, 249 S.W.2d 994, 995-96 (1952); Holmes v. Barclay, 4 La.Ann. 63 (1849); St. Louis Smelting & Refining Co. v. Hoban, 357 Mo. 436, 209 S.W.2d...
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