960 F.2d 1555 (11th Cir. 1992), 91-8351, Therrell v. Georgia Marble Holdings Corp.

Docket Nº:91-8351.
Citation:960 F.2d 1555
Party Name:Venita THERRELL, Alexandria Thacker, Grace Tate Peterson, Plaintiffs-Appellants, v. GEORGIA MARBLE HOLDINGS CORPORATION, Walter Industries, Inc. dba The Georgia Marble Company, Jim Walter Corporation, Defendants-Appellees.
Case Date:May 13, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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960 F.2d 1555 (11th Cir. 1992)

Venita THERRELL, Alexandria Thacker, Grace Tate Peterson,




dba The Georgia Marble Company, Jim Walter

Corporation, Defendants-Appellees.

No. 91-8351.

United States Court of Appeals, Eleventh Circuit

May 13, 1992

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Hugh C. Wood, Dwight A. Meredith, Wood & Meredith, Decatur, Ga., for plaintiffs-appellants.

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Gary W. Hatch, Ragsdale Beals Hooper & Seigler, John D. Jones, Greene, Buckley, Jones & McQueen, Terrill L. Mallory, Jones Day Reavis & Pogue, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH, ANDERSON and BIRCH, Circuit Judges.

KRAVITCH, Circuit Judge:

Venita Therrell, Alexandria Thacker, and Grace Tate Peterson (collectively, "the Tate heirs" 1) brought a diversity action in federal district court against Georgia Marble Holdings Corporation, Walter Industries, Inc. d/b/a The Georgia Marble Company, and Jim Walter Corporation 2 (collectively, "Georgia Marble"). Plaintiffs, who are fractional heirs to certain mineral interests in land mined by Georgia Marble, charged defendants with, inter alia, conversion of marble at a site known as Cove Mountain and conversion and breach of contract at a site known as Tate Quarries, with respect to which plaintiffs also brought an equitable claim for an accounting. The district court granted a directed verdict for defendants on all the Tate Quarries claims. On the Cove Mountain conversion claim, a special verdict by the jury determined that the material mined at the Cove Mountain site was marble, the mineral in which the Tate heirs held an interest, and the court awarded damages to the Tate heirs. The court also ruled, however, that Georgia's statute of limitations limited their recovery to conversion that occurred within four years of bringing the suit. The Tate heirs appeal from the court's statute of limitations ruling on the Cove Mountain claim and the court's directed verdict on the Tate Quarries equitable accounting claim. We affirm in part, reverse in part, and remand the case to the district court for a new trial on the equitable accounting issue.


I. Cove Mountain

Plaintiffs-appellants are heirs of S.C. Tate, who died in 1901. Pursuant to the terms of a mineral lease entered into by Tate in 1869, Cove Mountain marble rights reverted to Tate and his heirs. Plaintiffs have held fractional interests in the marble mined from Cove Mountain, but have held no interest in other minerals mined from Cove Mountain.

In 1961, Georgia Marble began to mine at Cove Mountain. The company entered into a mineral lease with third parties who owned the other mineral interests in Cove Mountain, paying them royalties for dolomitic limestone, also referred to as dolomite. Dolomitic limestone, a much less valuable mineral than marble, is similar to marble in certain respects. Because scientific, commercial, and popular definitions of marble differ, opinions can vary on whether a particular mineral deposit is marble or dolomitic limestone. Plaintiffs brought this action in 1988, claiming that the material that had been mined from Cove Mountain was marble, not dolomitic limestone, and that Georgia Marble had been paying the wrong people.

Alexander Therrell ("Therrell") is the son of plaintiff Venita Therrell and the nephew of plaintiff Alexandria Thacker. Since 1977, Therrell has held powers of attorney from these two plaintiffs. He organized, investigated, and made preparations for the present action on behalf of the Tate heirs in return for a portion of whatever judgment they received.

In 1977, Therrell was on the Cove Mountain property for a reason unrelated to this litigation when he spotted a mining operation. Aware that the Tate heirs had not received any royalties from mining on the Cove Mountain site, Therrell, after consulting with the Tate heirs, investigated further. Therrell asked Georgia Mining Vice President John Carney ("Carney") why the

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Tate heirs were not receiving royalties from this mining activity. Carney replied that the minerals being mined were dolomitic limestone, not marble. Relying on this information, Therrell reported this conversation to the Tate heirs and made no further inquiries until 1981, when he once more approached Georgia Marble and the company again stated that the material at Cove Mountain was dolomitic limestone.

In 1987, Therrell entered on to the Cove Mountain property and obtained a sample of the mineral being mined there. Therrell brought the sample to a geologist, who informed him that the material was marble.

The Tate heirs filed this action in the United States District Court for the Northern District of Georgia. They brought several claims related to the Cove Mountain site, including conversion, RICO, and fraud. Before the case went to the jury, the Tate heirs dropped all of their Cove Mountain claims except for conversion. The conversion claim turned on whether the minerals mined from Cove Mountain were marble, as plaintiffs claimed, or dolomitic limestone, as defendants claimed. At the close of the case, the court submitted three special interrogatories to the jury. The first special interrogatory read: "Were the stone materials removed from Cove Mountain 'marble' as the contracting parties understood and used that term in the documents of 1869, which reserved a 'marble' interest in the property?" The jury said yes. 3

The district court, without objection from the parties, reserved from the jury the question of what statute of limitations to apply to the claim. After requesting and receiving briefs from both parties on this issue, the court ruled that Georgia's general four-year statute of limitations for conversion applied, limiting the Tate heirs' recovery to the four years preceding the filing of this action. Without the imposition of the statute of limitations, the Tate heirs would have been entitled to damages of roughly $986,000. Instead, they received roughly $82,000.

II. Tate Quarries

The Tate heirs and Georgia Marble were tenants in common at the Tate Quarries site. Pursuant to a lease between the parties that was executed in 1955 and was in effect from 1959 to 1984, Georgia Marble paid the Tate heirs for their fractional interests in three different grades of marble taken from the site. Under the 1955 lease, plaintiffs received $.15 per cubic foot of dimension stone, $.45 per ton for split-face ashlar, and $.05 per ton for "dump block." During this period, Georgia Marble sent quarterly royalty statements to each of the Tate heirs detailing the quantity of marble that had been mined. After the lease expired in 1984, Georgia Marble and the Tate heirs did not negotiate a new lease. Exercising its rights as cotenant in common, Georgia Marble continued to mine at the Tate Quarries site. Georgia Marble continued to pay the Tate heirs at the rates specified in the lease. According to the company, it assured the Tate heirs that once a new lease was signed, they would retroactively receive the difference between the rates they were then receiving and the rates yet to be negotiated.

Plaintiffs claimed that defendants had, during the entire time that they had mined at Tate Quarries, underreported the quantity of marble removed from the site. During the period that the lease was in effect, the parties' rights were defined by the lease. After the lease expired in 1984, the parties' rights were defined by the fact that they were tenants in common. Plaintiffs charged defendants with, inter alia, conversion and breach of contract. Plaintiffs, also alleging that defendants had not paid them the full value of the marble after the lease had expired, brought a claim for an equitable accounting.

Plaintiffs' expert witness on the quantity and value of the marble mined at Tate

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Quarries and the alleged underreporting by Georgia Marble was Dr. Henry McCarl ("Dr. McCarl"). The substance of plaintiffs' underreporting claims was a comparison between the quantity of marble listed in the quarterly royalty statements that Georgia Marble sent to plaintiffs and the quantity of marble listed in voluntary yearly reports that Georgia Marble sent to the United States Bureau of Mines ("USBM"). Plaintiffs' contention was that Georgia Marble had reported greater quantities to the USBM than to them, and that this proved that defendants had underreported to plaintiffs the amount of marble removed from Tate Quarries.

Dr. McCarl prepared a chart that included columns showing, year by year, the quantity listed in the royalty statements and the quantity listed in the USBM reports. Comparing the two columns, Dr. McCarl arrived at a figure purporting to represent the quantity of marble for which Georgia Marble allegedly had failed to pay the Tate heirs. Cross-examination of Dr. McCarl brought out a number of significant facts, however. First, many of the USBM reports were estimates that did not reflect the actual quantity mined in a particular year. Second, for certain years, no USBM report was prepared at all. Third, defendants brought to light errors in computation committed by the USBM in translating Georgia Marble's report from the units of measurement used by Georgia Marble to the units of measurement used by the USBM, eliciting testimony from Dr. McCarl that he had not checked whether the USBM's mathematical calculations were correct. In light of these and other facts, defendants elicited from Dr. McCarl the admission that he could not state that the royalty statements sent by Georgia Marble to the Tate heirs were inaccurate because he could not state that the USBM reports, on which the...

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