Barnes v. Westinghouse Elec. Corp.

• Decision Date: 08 June 1992
• Docket Number: No. 91-1351,91-1351
• Citation: 962 F.2d 513
• Parties: Mark BARNES, Plaintiff-Appellant v. WESTINGHOUSE ELECTRIC CORPORATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 513

962 F.2d 513

Mark BARNES, Plaintiff-Appellant v. WESTINGHOUSE ELECTRIC CORPORATION, et al., Defendants-Appellees.

No. 91-1351.

United States Court of Appeals Fifth Circuit.

June 8, 1992.

Rehearing and Rehearing En Banc

Denied July 8, 1992.

Richard Warren Mithoff, Scott Rothenberg, Mithoff & Jacks, Houston, Tex., Thomas H. Hight, Sr., Hight & Hight, Dallas, Tex., for plaintiff-appellant.

R. Gregory Brooks, Winstead, McGuire, Sechrest & Minick, Dallas, Tex., for Westinghouse Elec. Corp.

Robert H. Frost, Gwinn & Roby, Dallas, Tex., for defendants-appellees.

Appeal from the United States District Court For the Northern District of Texas.

Before DAVIS, JONES and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

During his work on a remodeling project at Dallas/Fort Worth Airport, Mark Barnes was injured after drilling into a high voltage bus duct which was part of the building's electrical system. Barnes filed this personal injury and product liability action in state court against Westinghouse--manufacturer of the bus duct--and others, alleging that their negligence caused his injuries. The case was subsequently removed to federal court, and the district court granted summary judgment for Westinghouse because Barnes did not file suit within the ten-year statute of repose. See TEX.CIV.PRAC. & REM.CODE ANN. § 16.009 (West 1986). Finding no error, we affirm.

I

Barnes, an employee of Trinity Contractors, was injured on June 15, 1984 when, during the course of a remodeling project, he drilled into a pre-existing electrical bus duct ¹ manufactured by Westinghouse, and suffered, among other things, disfiguring burns to approximately seventy percent of his body. The bus duct which is the basis for Barnes' complaint was designed and manufactured by Westinghouse during 1972-73 for permanent installation into Dallas/Fort Worth airport, including the equipment room above American Airlines Terminal 3E, where Barnes was injured. ²

Barnes filed his Original Petition against Westinghouse and others in state district court in Tarrant County, Texas, on July 23, 1985. Approximately four years later, on January 12, 1989, Westinghouse removed Barnes' suit to federal court alleging diversity jurisdiction under 28 U.S.C. § 1332. Barnes promptly moved to remand to state court, and the district court denied his motion.

Subsequently, Westinghouse filed a motion for summary judgment, asserting that Barnes' action was barred by the Texas ten-year statute of repose--limiting actions for liability resulting from "improvement[s]" to real property to ten years from "substantial completion" of that improvement. TEX.CIV.PRAC. & REM.CODE ANN. § 16.009 (1986). ³ Approximately a year after his motion to remand was denied, Barnes filed a motion for rehearing. The district court denied Barnes' motion for rehearing, and granted Westinghouse's motion for summary judgment. Barnes appeals the judgment for Westinghouse, arguing that his motion to remand should have been granted and that summary judgment was improper because the bus duct was a component part of an improvement and, therefore, outside the state of repose.

II

A

Barnes argues that the district court erred in denying his motion for rehearing of his motion to remand on the grounds that the one-year limitation on removal contained in 28 U.S.C. § 1446(b) ⁴ is jurisdictional ⁵ and thereby may be raised at any time prior to judgment pursuant to 28 U.S.C. § 1447(c). ⁶ We disagree.

Barnes filed his Sixth Amended Original Petition--a petition naming for the first time completely diverse defendants--on December 16, 1988. Less than thirty days later, Westinghouse filed a petition for removal to the United States District Court for the Northern District of Texas. See 28 U.S.C. § 1441. Within thirty days of filing, Barnes filed a motion to remand, claiming that Westinghouse sought affirmative relief in the state district court after the case became removable, thereby waiving the opportunity to rightfully remove the case. The district court denied Barnes' motion to remand.

Over a year later, in September 1990, Barnes filed a motion for rehearing of his motion to remand. For the first time, Barnes argued that a case cannot be removed to federal court on the basis of diversity more than one year after commencement of the action. See 28 U.S.C. § 1446(b). ⁷ None of the parties dispute that Westinghouse removed the case more than one year after the commencement of the action. The district court, however, denied Barnes' motion for rehearing, reasoning that the removal procedures set forth at 28 U.S.C. §§ 1446(b) and 1447(c) were not jurisdictional. Therefore, the district court reasoned that if a case was in state court for over a year, and then removed pursuant to 28 U.S.C. § 1332, failure to comply with the thirty-day requirement imposed by section 1447(c) results in a waiver of a plaintiff's rights to object to removal defects resulting from noncompliance with section 1446(b). Because Barnes waited over twenty months to move for rehearing on his motion to remand, based on Westinghouse's failure to remove within one year of the original action, the district court found that Barnes had waived his right to object pursuant to section 1447(c).

We are not persuaded by Barnes' arguments that section 1446(b) is jurisdictional in nature, and therefore may be raised at any time. The language of the statute belies Barnes' contentions and indicates that sections 1446(b) and 1447(c) are procedural provisions. ⁸ As we stated in Baris v. Sulpicio Lines, "this court has had little difficulty in distinguishing between removal jurisdiction, ⁹ on the one hand, and original or subject matter jurisdiction, ¹⁰ on the other hand." Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1544 (5th Cir.), (footnote omitted) cert. denied, --- U.S. ----, 112 S.Ct. 430, 116 L.Ed.2d 449 (1991) (citations omitted); see also In re Shell Oil Co., 932 F.2d 1518, 1522-23 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 914, 116 L.Ed.2d 814 (1992) (noting that defects in removal procedure include all non-jurisdictional defects, and concluding that plaintiffs waived any non-jurisdictional grounds for remand existing at time of removal by not moving to remand within 30 days of notice of removal); see also In re Shell Oil Co., 932 F.2d 1523 (5th Cir.1991) (companion case to Shell, supra ).

We have noted that the word "procedural" in section 1447(c) refers to "any defect that does not go to the question of whether the case originally could have been brought in federal district court...." Baris, 932 F.2d at 1544; see also H.R.REP. NO. 100-889, 100th Cong., 2d Sess. 7 (1988), reprinted in 1988 U.S.C.C.A.N. 5982, 6032-33 (noting 1988 changes to sections 1446(b) and 1447(c) and discussing removal procedure). This distinction between removal jurisdiction and subject matter jurisdiction is applicable to section 1446(b), which speaks of the removal of cases not more than one year after the commencement of the action. We previously have noted that "[t]he time limitation for removal is not jurisdictional; it is merely 'modal and formal and may be waived.' " Nolan v. Boeing Co., 919 F.2d 1058, 1063 n. 6 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1587, 113 L.Ed.2d 651 (1991) (citations omitted). Because Barnes did not move for rehearing on his motion to remand based on a procedural defect until approximately twenty months after Westinghouse's removal, we find that he waived his opportunity to call this procedural defect to the district court's attention.

B

Barnes also challenges the district court's conclusion that the bus duct was an improvement under section 16.009 of the Texas Civil Practice and Remedies Code, that no genuine issues of fact existed, and that Westinghouse was entitled to summary judgment as a matter of law. Barnes argues that the district court should not have granted Westinghouse's motion for summary judgment because the bus duct was merely a component part of an improvement and, therefore, outside the statute of repose. See TEX.CIV.PRAC. & REM.CODE ANN. § 16.009 (West 1986). We find Barnes' contentions without merit.

Section 16.009 provides in relevant part:

(a) A claimant must bring suit for damages for a claim listed in Subsection (b) against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement in an action arising out of a defective or unsafe condition of the real property or a deficiency in the construction or repair of the improvement.

Id. The term improvement, set forth in section 16.009, has been held to include "all additions and betterments to the freehold." Dubin v. Carrier Corp., 731 S.W.2d 651, 653 (Tex.App.--Houston [1st Dist.] 1987) (citation omitted), appeal after remand, 798 S.W.2d 1 (Tex.App.--Houston [14th Dist.] 1989, writ dism'd by agr.). An improvement can be anything that permanently enhances the value of the premises, and it can even be something easily removable provided that it is attached and intended to remain permanently as part of the building. See Dedmon v. Stewart-Warner Corp., 950 F.2d 244, 247 (5th Cir.1992), citing Ablin v. Morton Southwest Co., 802 S.W.2d 788, 791 (Tex.App.--San Antonio 1990, writ denied) and Dubin I, 731 S.W.2d at 654. However, manufacturers of component parts of an improvement do not come within section 16.009's statutory language. See Conkle v. Builders Concrete Prods. Mfg. Co., 749 S.W.2d 489, 491 (Tex.1988) (citation omitted). And, a materialman who does no more than manufacture or supply materials does not benefit from--section 5536a, § 2, the predecessor statute to--section 16.009. ¹¹ Reddix v. Eaton Corp., 662 S.W.2d 720, 724 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.) (citations omitted).

Barnes relies heavily on Conkle to support his argument that Westinghouse manufactured merely a component part of an improvement. In Conkle a...