823 F2d 546 Environmental Coal Processing Systems of Virginia Ltd Environmental Coal Processing Systems of Virginia Ltd v. Clinchfield Coal Company

823 F.2d 546
Unpublished Disposition

In re ENVIRONMENTAL COAL PROCESSING SYSTEMS OF VIRGINIA,
LTD., Debtor.
ENVIRONMENTAL COAL PROCESSING SYSTEMS OF VIRGINIA, LTD.;
Clinchco Mining Co., Inc., Plaintiff-Appellant,
v.
CLINCHFIELD COAL COMPANY; Pittston Resources, Inc.,
Defendant-Appellee.

No. 86-3716

United States Court of Appeals, Fourth Circuit.

Argued April 9, 1987.
Decided July 1, 1987.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Robert Tayloe Copeland (Copeland, Molinary & Bieger, on brief), for appellant.

Stephen McQuiston Hodges (Penn, Stuart, Eskridge & Jones, on brief), for appellee.

Before WINTER, Chief Judge, RUSSELL, Circuit Judge, and HAYNSWORTH, Senior Circuit Judge.

PER CURIAM:


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1

Environmental Coal Processing Systems of Virginia, Ltd. (ECPS) and its successor, Clinchco Mining Co., Inc. (Clinchco), sued Pittston Resources, Inc. (Pittston) and Clinchfield Coal Company (Clinchfield) alleging breach of a coal refuse processing agreement. The contract had been the subject of prior litigation. Clinchfield pleaded res judicata as a defense, and Pittson moved to dismiss for failure to state a claim. The district court entered summary judgment for Clinchfield, and it granted Pittston's motion to dismiss. Plaintiffs appeal.

2

Except in one respect we think that the judgment of the district court is unassailable. The complaint alleges nothing with regard to Pittston which implicates it in plaintiffs' alleged cause of action. Therefore the complaint fails to state a cause of action against Pittston.

3

Plaintiffs' claims against Clinchfield, with one exception, either were, or could have been, asserted in the prior litigation. Since that litigation resulted in a judgment against Clinchco which was not appealed, it follows that the present claims are barred.* The one exception is a claim alleged to have arisen subsequent to the termination of the prior litigation. Plaintiffs allege that, under the agreement between the parties, plaintiffs contracted to assume certain reclamation responsibilities, under the Surface Mining Reclamation Act and Virginia law, that certain sums due to plaintiffs were placed in escrow to insure compliance with this contractual duty, that plaintiffs have fully performed their contractual duty, but that defendants have failed and refused to pay such sums despite demand therefore. Since the reclamation is alleged not to have been completed until after termination of the prior litigation, plaintiffs had no right to the monies in escrow until after the prior litigation. It follows that they did not have a claim to those monies at that time and the doctrine of res judicata with respect thereto is inapplicable.

4

We therefore affirm the judgment of dismissal as to Pittston, and we affirm summary judgment for Clinchfield except as to plaintiffs' claim to the monies in escrow. We reverse the summary judgment as to the monies in escrow and remand this aspect of the case for further proceedings.

5

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

*

Plaintiffs claim that entry of summary judgment was improper without submission by Clinchfield of affidavits from its officers, directors or employees. However, F.R. Civ. P. 56 makes clear that no supporting affidavits need accompany a summary judgment motion, and the Supreme Court has recently so held. See Celotex Co. v. Catrett, ---- U.S. ---- (1986)