United States v. 87,237 Acres of Land

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40149

Summary Calendar

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

85,237 ACRES OF LAND, MORE OR LESS, ET AL.,

Defendants,

BANK ONE, TEXAS, NATIONAL ASSOCIATION, Trustee of the Red
Crest Trust; LELIA BEATRICE COX HARRIS; LINDA HARRIS BEARD;
MARGIE HARRIS NEWTOWN; JOHN H McMULLEN, JR; ANDY J McMULLEN,

Defendants-Appellants.

Appeal from the United States District Court
For the Southern District of Texas
(L-529)

September 17, 1997

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Appellants appeal the trial court’s dismissal of their Rule

60(b) motion. We affirm.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
 I.

Appellants assert that the district court reached two

erroneous legal conclusions. First, the Order Closing Civil

Action, entered August 10, 1970, was a final judgment in this civil

action. Second, a Quiet Title Act claim is an adverse claimant’s

exclusive means to challenge the United States’ title to real

property. We find Appellants’ objections to these determinations

to be without merit and therefore affirm the lower court’s

dismissal of their Rule 60(b) motion.

II.

On August 10, 1970, the district court entered in this case an

Order Closing Civil Action.1 R. Vol. 4 at 344. The Order stated:

“all matters and controversies have been adjudicated in
the . . . civil matter . . . and . . . it is . . .
ORDERED that the above captioned civil action be and is
hereby CLOSED and DROPPED from the Docket of the Court;
subject, however, to the power of the Court to make such
future Orders, if any, as may be necessary.” Id.

Appellants argue that the last phrase of the order denies finality

to the judgment since the trial court reserved the power to make

any necessary future orders. We find this argument to be totally

lacking.

The “requirement of finality is to be given a ‘practical

rather than a technical construction.’” Gillespie v. United States

1
We make no ruling on whether the Judgment Confirming Award of
Special Commission and Report of Special Master entered on July 26,
1956 was a final judgment in this suit. It is clear that the Order
Closing Civil Action was a final judgment in this case.

2
Steel Corp., 379 U.S. 148, 152 (1964)(quoting Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949)). It is well settled

that a “final judgment” may not be the last possible order in a

case. Gillespie, 379 U.S. at 152. The Order Closing Civil Action

of August 10, 1970 adjudicated all the controversies with respect

to all of the parties in the civil action. The last phrase of the

order does not negate its finality.

Appellants next assert that a final judgment was never entered

in this case because no notice of the condemnation proceeding was

served on the remaindermen of the Langille Trust or on the

Corporation.2 We find this argument to be unavailing as well.

Assuming that Appellants’ are correct in their assertion that

neither the remainder beneficiaries nor the Corporation received

notice of the condemnation proceeding,3 the Order Closing Civil

Action is nonetheless a final judgment. Since they did not receive

notice and did not voluntarily appear in the proceeding, the

remaindermen and Corporation never became parties to the civil

action.4 Nagle v. Lee, 807 F.2d 435 (5th Cir. 1987). This absence

2
For the sake of clarity and brevity, we adopt the lexicon of
Appellants to refer to the various entities and concerns in this
case. See Appellants’ Brief at 5.
3
In order to dispose of this appeal, it is unnecessary for us
to decide whether the remaindermen or the Corporation had notice of
the civil action. We make no ruling on this issue. Rather, we
will assume that Appellants’ contention is true that these persons
did not have notice of the condemnation proceeding.
4
We do not decide the interest the remaindermen or Corporation
had in the subject parcels.

3
of notice does not negate the finality of the district court’s

order of August 10, 1970 since this order resolved all

controversies with respect to all persons who were parties to the

suit. Id.

Finally, Appellants aver that the Order Closing Civil Action

was not a final judgment because the Bank never received notice of

the United States’ Amended Petition in Condemnation which gave the

owners of the subject parcels the right to elect to revest the

mineral interests in themselves, subject to certain restrictions

which are not of importance here. Any interest Appellants claim in

the property through the Bank is nugatory. As Appellants admit,

the Bank received adequate notice of the condemnation proceeding

but failed to respond or appear in the action. By its inaction,

the Bank waived any defense or objection it may have had to the

taking or any right or benefit it may have received during the

course of the proceeding. Fed. R. Civ. P 71A(e). After receiving

notice, the Bank, as trustee of the Langille Trust, had a duty to

keep abreast of the developments in the condemnation suit. The

Bank’s dereliction in its duty does not tarnish the finality of the

district court’s Order Closing Civil Action.

III.

Appellants claim that the trial court erred in ruling that the

exclusive means to challenge the United States’ title to real

property is a suit under the Quiet Title Act, 28 U.S.C. § 2409a

(1994). By this ruling, the district court dismissed Appellants’

4
Rule 60(b) motion for lack of subject matter jurisdiction. Though

the court below in its order cast the net wider than necessary, we

find that it reached the correct result.

Appellants contend that they were entitled to file a Rule

60(b) motion attacking the district court’s final judgment since

the remaindermen of the Langille Trust never received notice of the

condemnation proceeding.5 Appellants misunderstand the effect of

the lack of notice to the remaindermen.

As we stated, since the remaindermen did not receive notice

and did not voluntarily appear in the suit, they were not parties

to the condemnation action.6 Contrary to Appellants’ belief,7 the

law of this circuit establishes that non-parties to a federal

eminent domain suit must assert their claims to the condemned

property via an independent action against the United States, not

by a Rule 60(b) motion. Screven v. United States, 207 F.2d 740,

741 (5th Cir. 1953). The lack of notice to the Langille Trust

5
Again, we assume, without deciding, that the remaindermen did
not have notice of the condemnation proceeding. We take this
position to show that even on their factual predicate, Appellants’
challenge to the district court’s dismissal of their Rule 60(b)
motion falls short.
6
See supra at 3.
7
Appellants state in their brief that this case presents an
issue of first impression of whether a person claiming an interest
in condemned land who received no notice of the eminent domain
action may maintain a Rule 60(b) motion attacking the final
judgment in the proceeding. Appellants’ Brief at 32. We disagree
with Appellants’ characterization of the question presented since
Fifth Circuit precedent controls the outcome of this dispute.

5
remaindermen does not foreclose Appellants’ claims to the subject

parcels as successors in interest to the remaindermen’s interest in

the land.8 United States v. 22,680 Acres, 438 F.2d 75, 77 (5th

Cir. 1971). However, the lack of notice to the remaindermen does

preclude Appellants’ use of Rule 60(b) as the vehicle with which to

advance their claims of ownership in the property. Screven v.

United States, 207 F.2d at 741; See United States v. 22,680 Acres,

438 F.2d at 77-78.

Though the district court ruled that the Quiet Title Act “is

the exclusive means by which adverse claimants may challenge the

United States’ title to real property”, all we need to say is that

in this particular case, Appellants can not use Rule 60(b) to press

their claims against the United States with respect to their

alleged ownership interest in the property in question and we say

no more.

The judgment of the district court is AFFIRMED.

8
We do not decide the interest the remaindermen to the
Langille Trust have in the property. It is important to remember
what this appeal is not, viz., an adjudication of Appellants’
rights to the subject parcels vi!s-a-vi!s the United States. We are
only deciding if Appellants may use Rule 60(b) as a means to
vindicate their alleged interest in the land.

6