Appletree Square I, Ltd. Partnership v. W.R. Grace & Co.

29 F.3d 1283, 1994 WL 372036
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 19, 1994
DocketNo. 93-3359
StatusPublished
Cited by6 cases

This text of 29 F.3d 1283 (Appletree Square I, Ltd. Partnership v. W.R. Grace & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appletree Square I, Ltd. Partnership v. W.R. Grace & Co., 29 F.3d 1283, 1994 WL 372036 (8th Cir. 1994).

Opinion

WOLLMAN, Circuit Judge.

Appletree Square I Limited Partnership, CRHC of Bloomington, Inc., and Crimark Office Building Associates Limited Partnership (collectively, “Appletree”) filed a ten-count complaint against W.R. Grace & Company (“Grace”), seeking to recover costs of removing asbestos-containing fireproofing material from Appletree’s commercial office building. The district court1 granted summary judgment in favor of Grace, holding that Appletree’s nine state law claims were time-barred and that Appletree failed to establish a genuine issue of material fact regarding its standing to bring-its claim under the Racketeer Influenced and Corrupt Organizations Act, as amended, 18 U.S.C. §§ 1961-1968 (1988) (“RICO”). 815 F.Supp. 1266. We affirm.

When the office building was constructed in 1972 and 1973, Monokote III, an asbestos-containing fireproofing product manufactured by Grace, was sprayed on the structural steel. The original owner and architect sold the building to Appletree Square I Limited Partnership on September 21, 1981. Apple-tree discovered the presence of the asbestos-containing fireproofing in 1986.

Appletree filed the present action on June 29, 1990, alleging claims based on strict liability, negligence, nuisance, breach of warranties, misrepresentation and fraud, restitution, false advertising and consumer fraud, conspiracy, concert of action, and RICO. Grace was served on July 3, 1990.

I. State law claims

The Minnesota statute of limitations for improvements to real property2 applies to Appletree’s state law claims, with the exception of its breach of warranty claims.3 Minn. Stat. § 541.051; see Metropolitan Fed. Bank of Iowa, F.S.B. v. W.R. Grace & Co., 999 F.2d 1257, 1261 (8th Cir.1993); Concordia [1285]*1285College Corp. v. W.R. Grace & Co., 999 F.2d 326, 328-29 (8th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 926, 127 L.Ed.2d 218 (1994); Independent School Dist. No. 197 v. W.R. Grace & Co., 752 F.Supp. 286, 289 (D.Ct.Minn.1990); Independent School Dist. No. 622 v. Keene Corp., 495 N.W.2d 244, 248-49 (Minn.Ct.App.1993), aff'd in part and rev’d in part on other grounds, 511 N.W.2d 728 (1994). The statute includes a limitations period of two years from discovery of the injury and a statute of repose which cuts off the right of action ten years from substantial completion of the construction. Minn.Stat. Ann. § 541.051, subd. 1(a) (West.Supp.1994).

Appletree argues that its action was timely because Grace fraudulently concealed knowledge of the hazardous nature of asbestos. Although a defendant’s fraudulent concealment may toll the ten-year statute of repose, it does not toll the two-year limitation period which, by its terms, does not begin to run until discovery of the injury. See Wittmer v. Ruegemer, 419 N.W.2d 493, 497-98 (Minn.1988). Thus, even assuming that Grace’s allegedly fraudulent conduct prevented Ap-pletree from discovering the defective condition of the fireproofing within ten years of substantial completion of the building, Apple-tree’s action is time-barred if it discovered its injury more than two years before bringing suit.

The district court concluded that, pri- or to July 3, 1988, Appletree discovered, or through the exercise of reasonable diligence should have discovered, that the asbestos in the building was a hazard in need of abatement. The court pointed to the following information which Appletree possessed by early March 1988:

1. an engineering and environmental testing organization’s report which stated that asbestos was present in the building, listed its condition as “poor” because it was highly friable with the potential for future erosion, assumed some of the ceiling tiles had become contaminated with asbestos fibers and fallen debris, and recommended priority removal;
2. a law firm’s letter discussing the hazards from asbestos exposure, state and federal regulations concerning asbestos levels, and abatement issues. The letter recommended the building be surveyed to determine whether the asbestos was a current health hazard;
3. an air sampling report showing that asbestos fibers were present in the air in the building and stating that any contamination of air by asbestos was a potential health risk; and
4. an environmental consulting firm’s paper indicating that it was a mistake to rely on air sampling alone to detect the presence of asbestos.

Further, the district court noted that Apple-tree placed a “hold” on above-ceiling maintenance work in early 1988 in order to ensure that maintenance personnel and tenants would not disturb the fireproofing.

Appletree does not dispute these facts. Instead it argues that the two-year statute of limitations did not begin to run until November 1991, when it received test results showing elevated levels of contamination above the ceiling tiles,4 relying on MDU Resources Group v. W.R. Grace & Co., 14 F.3d 1274 (8th Cir.1994). In MDU, we held that, under North Dakota law, the issue for purposes of the statute of limitations was not when MDU learned of the presence of asbestos in its building, but when MDU could have learned, with the exercise of reasonable diligence, that its building had been contaminated by asbestos. Id. at 1279.

Even if we were to apply the MDU standard to the present case, the outcome remains unchanged. As Appletree recognizes in its reply brief, the MDU “contamination” standard is consistent with the “hazard requiring abatement” standard that the district court applied. We conclude that the undisputed facts from which the district court concluded that, prior to July 3, 1988, Apple-tree discovered, or through the exercise of reasonable diligence should have discovered, that the asbestos in the building was a hazard in need of abatement also lead to the conclusion that Appletree, prior to July 3, [1286]*12861988, could have learned, with the exercise of reasonable diligence, that its building had been contaminated by asbestos.

Further, Minnesota’s revival statute for asbestos cases does not aid Appletree. The statute revives or extends an asbestos abatement recovery action “that would otherwise be barred before July 1, 1990, as a result of expiration of the applicable period of limitation.” Minn.Stat.Ann. § 541.22(2) (West Supp.1994). It adds that “[a]n asbestos action revived or extended under this subdivisión may be begun before July 1, 1990.” Id. Appletree filed its complaint in federal district court on June 29, 1990, but Grace was not served until July 3, 1990. Under Minnesota law, an action is commenced or begun when the defendants have been served. Minn.R.Civ.P. 3.01; Metropolitan Federal Bank, 999 F.2d at 1261-62; Concordia College Corp., 999 F.2d at 330-331.

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Related

Klesalek v. Klesalek (In Re Klesalek)
307 B.R. 648 (Eighth Circuit, 2004)
Appletree Square I Ltd. Partnership v. O'Connor & Hannan
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72 Ohio St. 3d 269 (Ohio Supreme Court, 1995)

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Bluebook (online)
29 F.3d 1283, 1994 WL 372036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appletree-square-i-ltd-partnership-v-wr-grace-co-ca8-1994.