Suthoff v. Yazoo County Indus. Development Corp.

• Decision Date: 22 December 1983
• Docket Number: No. 83-4115,83-4115
• Citation: 722 F.2d 133
• Parties: Jonez P. SUTHOFF, et al., Plaintiffs-Appellants, v. YAZOO COUNTY INDUSTRIAL DEVELOPMENT CORPORATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 133

722 F.2d 133

Jonez P. SUTHOFF, et al., Plaintiffs-Appellants, v. YAZOO COUNTY INDUSTRIAL DEVELOPMENT CORPORATION, et al Defendants-Appellees.

No. 83-4115.

United States Court of Appeals Fifth Circuit.

Dec. 22, 1983.

Pyles & Tucker, Dixon L. Pyles, Jackson, Miss., for plaintiffs-appellants.

Watkins & Eager, Michael W. Ulmer, Jackson, Miss., for Yazoo City, Yazoo Public Ser. Comm., Campbell & Smith.

Henry, Barbour & Decell, Haley Barbour, Yazoo City, Miss., for Barbour, Neely & Stevenson.

Vardaman S. Dunn, Jackson, Miss., for Yazoo Industrial & Yazoo Port Comm.

Appeal from the United States District Court for the Southern District of Mississippi.

Before COLEMAN, GARZA and HIGGINBOTHAM, Circuit Judges.

GARZA, Circuit Judge:

Plaintiffs brought this action pursuant to 42 U.S.C. Sec. 1983, alleging the deprivation of property rights under the Fifth and Fourteenth Amendments to the Constitution. Plaintiffs appeal from the summary judgment granted defendants by the district court.

FACTS AND PROCEEDINGS BELOW

Plaintiff Inez Philibert was the owner of approximately 122 acres of land in Yazoo County, Mississippi. In January of 1970, E.A. Smith, a member of the Yazoo Public Service Commission (PSC), accompanied by an attorney acting for the Yazoo County Port Commission (Port Commission), visited Philibert and offered to purchase the property for $97,600. Philibert refused the offer, stating that she was not interested in selling the property. Smith contacted Philibert a number of times thereafter in an attempt to persuade her to sell the property, all to no avail. During this time, Philibert had retained attorney William Neely to represent her interests in her dealings with the land. Philibert alleges that in the late summer of that year, Smith again approached her, stating that if she continued to refuse to sell the property, condemnation proceedings would be initiated and she would receive only a fraction of what he was offering her for the land. Philibert steadfastly refused to change her position.

On October 16, 1970, Philibert conveyed one-third undivided interests in the 122 acres to each of her two daughters, plaintiffs Suthoff and Miller. Attorney Neely agreed to represent their interests in the property as well.

In August, 1971, Tom Campbell, Jr., attorney for Yazoo City and the PSC, met with Philibert, Suthoff and Miller. He told them that an appraiser for Yazoo City had valued their property at $250 per acre, and he offered to buy 82.43 acres of the property for the sum of $22,500. This offer was likewise rejected. On September 2, 1971, Campbell filed a condemnation action on behalf of Yazoo City against Philibert, Suthoff and Miller, seeking to have 82.43 acres of the property condemned for use in the construction and operation of a sewage treatment facility. On attorney Neely's advice, the women thereupon employed attorney William Barbour to associate with Neely in the representation of their interests in the property. Barbour was a board member of the Yazoo County Industrial Development Corporation (YIDC), and a member of its Executive Committee (a fact which plaintiffs claim not to have learned until 1979).

Barbour and Neely hired appraiser Joel Stevenson to appraise their client's property. In a letter dated October 8, 1971, Stevenson stated that as of September of that year, 99.25 acres of the plaintiffs' property had a value of $100,850. Plaintiffs claim that they were refused a copy of Stevenson's appraisal. Plaintiffs allege that the property was actually worth more than $4,000 per acre, but that Barbour, acting in concert with the other defendants, had instructed Stevenson to report the lower value to enable the defendants to purchase the property for less than one-fourth its actual value.

Plaintiffs further claim that attorneys Barbour and Neely told them, in effect, that they "could not fight city hall," and that if they did not sell the property to Yazoo County for $100,835, the Yazoo County Court would order it sold to Yazoo City for only $22,500. Under this belief, the plaintiffs' deeded the entire 122 acres to Yazoo County on February 22, 1972, for $100,835, apparently believing they were conveying title to only 99.25 acres. Unknown to them, the condemnation action had been dismissed at Yazoo City's request on February 16, 1972.

Plaintiffs filed this action on February 16, 1979, almost seven years after the sale, seeking compensatory and punitive damages against Yazoo City, Yazoo County, the Yazoo Port Commission, YIDC and PSC; also, against E.A. Smith, attorneys Barbour, Neely and Campbell, and appraiser Stevenson. Plaintiffs alleged numerous causes of action, including the deprivation of property without due process, fraud, deceit, abuse of process and breach of a fiduciary trust, and in the alternative for recission of the deed. The district court dismissed the complaint as failing to state a claim over which it had subject matter jurisdiction. We reversed and remanded, holding that the pleadings sufficiently alleged a federal claim within the district court's jurisdiction. See Suthoff v. Yazoo County Industrial Development Corporation, 637 F.2d 337 (5th Cir.), reh. denied per curiam, 642 F.2d 822 (5th Cir.1981).

On remand, after extensive discovery was had, the district court granted summary judgment in favor of all defendants. The court held that the action as against each defendant was barred by limitations; furthermore, that the doctrine of res judicata acted to bar the action against attorneys Barbour and Neely. We are called upon in this appeal to decide which of Mississippi's statutes of limitations apply to this action, and whether the application of that statute or statutes acts as a bar to the prosecution of the action.

I.

Plaintiffs' complaint alleges claims arising under state law and under Sec. 1983. Because no statute of limitations was specifically enacted to govern actions brought pursuant to Sec. 1983, federal courts must "borrow" the state statute of limitations governing analogous causes of action. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Drayden v. Needville Independent School District, 642 F.2d 129, 131 (5th Cir.1981); Braden v. Texas A & M University System, 636 F.2d 90, 92 (5th Cir.1981). The district court characterized the plaintiffs' action as one based on an intentional tort for which there existed an adequate remedy at common law, therefore finding applicable Mississippi's one-year limitations statute for intentional torts, Miss.Code Ann. Sec. 15-1-35 (1972). That statute provides:

All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, and for libels, shall be commenced within one year next after the cause of such action accrued, and not after.

The district court further stated that if it was incorrect in this regard, the action was nonetheless barred by Mississippi's six-year statute governing actions not otherwise specifically provided for, Miss.Code Ann. Sec. 15-1-49 (1972). ¹

In determining which state limitations period controls, we must look to the essential nature, or "gravamen," of the complaint. Prince v. Wallace, 568 F.2d 1176 (5th Cir.1978); Boshell v. Alabama Mental Health Board, 473 F.2d 1369 (5th Cir.1973). Looking to the substance of the complaint in this instance, the plaintiffs allege that the defendants conspired to have Yazoo City initiate proceedings to expropriate the plaintiffs' property for sewerage purposes, in order to coerce plaintiffs into selling their property at a fraction of its value to Yazoo County. This was allegedly done to enable the Port Commission and the YIDC to utilize the property for public purposes. The cause of action under Mississippi law most analogous to the plaintiffs' claim is that of "abuse of process", being "the intentional use of legal process for an improper purpose incompatible with the lawful function of the process by one with an ulterior motive in doing so, and with resulting damages." Hyde Construction Co., Inc. v. Koehring Company, 387 F.Supp. 702, 712-13 (S.D.Miss.1974), modified but cited with approval sub nom., Dunn v. Koehring Company, 546 F.2d 1193, 1199 n. 19 (5th Cir.), modified sub nom., Hyde Construction Co., Inc. v. Koehring Co., 551 F.2d 73 (5th Cir.1977); See also Wilcon, Inc. v. Travelers Indem. Co., 654 F.2d 976, 983-84 (5th Cir.1981).

Reviewing Mississippi's various limitations statutes, only two appear to have possible application to actions brought for abuse of process. They are Miss.Code Ann. Sec. 15-1-35 (1972), providing the one-year period for intentional torts found applicable by the district court; and, Miss.Code Ann. Sec. 15-1-49 (1972), providing the six-year "catch-all" provision for actions not otherwise provided for. As previously noted, plaintiffs' action would be untimely under either. Although some authority supports application of the six-year statute, See Hyde Construction Co., Inc. v. Koehring Company, supra, 387 F.Supp. 702 at 712 (applying the six-year statute to an abuse of process action), the greater weight of authority is in favor of the one-year statute. See Dennis v. Travelers Insurance Co., 234 So.2d 624, 626 (Miss.1970) (abuse of criminal process held to come within definition of "menace" in one-year statute); Rigby v. Roadway Exp., Inc., 680 F.2d 342, 344 (5th Cir.1982) (one-year statute applied to wrongful discharge action against employer, although not specifically provided for); Childers v. Beaver Dam Plantation, Inc., 360 F.Supp. 331, 333 (N.D.Miss.1973) (one-year statute applied to action for malicious prosecution, abuse of criminal process, libel and slander); Andrews v. GAB Business Services, Inc., 443 F.Supp. 510, 513 (N.D.Miss.1977) (one-year statute applied to invasion of privacy action, although not specifically provided for). In our opinion the...