[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 11-13737

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D.C. Docket Nos. 8:10-cv-02360-VMC ; 8:90-bk-10016-PMG

In Re: THE CELOTEX CORPORATION,

CAREY CANADA INC.,

Debtor.

________________________________

SOUTHERN WESLEYAN UNIVERSITY, 

individually and as the representative

for the certified college class,

Plaintiff–Appellant,

versus

ASBESTOS SETTLEMENT TRUST,

FRANK ANDREWS,

SHARON M. MEADOWS,

JAMES W. STEVENS, 

Defendants–Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

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(November 6, 2012)

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Before BARKETT and JORDAN, Circuit Judges, and HALL,* District Judge.

PER CURIAM:

This appeal arises out of a bankruptcy court proceeding involving the 

Asbestos Settlement Trust (“Trust”), which was created in bankruptcy court in 

1996 to pay asbestos mass tort claims for both bodily injury and property damage 

against Celotex Corporation and Carey Canada, Inc. Several educational 

institutions, including Michigan State University, Prince George’s College, 

Rochester Institute of Technology, The University of Cincinnati, Fairfield 

University, and Claremont McKenna College (collectively, the “Colleges”) filed

property damage claims against the Trust. The claims of the Colleges were denied 

by the Trust on the grounds that they did not satisfy the legal prerequisites for 

payment. The Colleges objected and the Trust sought the bankruptcy court’s 

review, filing for declaratory relief in an adversary proceeding. Several years later 

and based on this Court’s decision in a related proceeding, Asbestos Settlement 

Trust v. City of New York (In re Celotex Corp.), 487 F.3d 1320 (11th Cir 2007), 

the Trust reversed course and agreed to pay the Colleges under a formula approved 

of in In re Celotex Corp. 

 

* Honorable James Randal Hall, United States District Judge for the Southern District of 

Georgia, sitting by designation. 

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Having paid the Colleges, the Trust moved to dismiss the declaratory relief 

adversary proceeding. The Colleges, however, objected to the dismissal on two 

grounds: (1) that the property damage payments were insufficient because they did 

not include interest at the federal judgment rate and (2) that the Colleges’ claim 

that the Trust breached its fiduciary duty when it initially failed to pay the property 

damage claims had not been resolved. The bankruptcy court held that the plan 

governing the Trust did not provide for interest and dismissed the declaratory 

judgment adversary proceeding,1 but without prejudice to the Colleges’ right to 

pursue additional claims in a new bankruptcy court proceeding.

The Colleges then sought leave from the bankruptcy court to bring a lawsuit 

against the Trust in a forum that would provide for a jury trial for any and all 

claims they may have related to the Trust’s alleged wrongful failure to pay their 

property damage claims. The bankruptcy court concluded that the Colleges could 

bring such claims but only in the bankruptcy court.2

 

 1 The Colleges appealed the bankruptcy court’s ruling on the interest rate payment claim, which 

the district court, see Claremont McKenna College v. Asbestos Settlement Trust (In re Celotex 

Corp.), No. 08–2343 (M.D.Fla. March 18, 2009), and this Court, see Claremont McKenna 

College v. Asbestos Settlement Trust (In re Celotex Corp.), 613 F.3d 1318 (11th Cir. 2010), both

affirmed. 2 The Colleges appealed that decision to the district court, which concluded that the bankruptcy 

court’s jurisdictional order was a non-final interlocutory order, which the district court declined 

to review pursuant to 28 U.S.C. § 158(a). The Colleges appealed the district court’s decision to 

this Court, which we have addressed in our opinion in the separate appeal in Michigan State 

University, et al v. Asbestos Settlement Trust, No. 10-13641. 

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Subsequently, another educational institution, Southern Wesleyan University 

(“SWU”), acting as the representative of the thirty-six members of the “National 

Universities Class Action,”3 instituted an adversary proceeding in bankruptcy 

court, alleging a single claim for breach of fiduciary duty against the Trust by those 

members of the Class who have disputed property damage claims. The Trust 

sought dismissal of the Amended Complaint, arguing that SWU lacked standing to 

bring this action both because (1) SWU’s purported status as the class 

representative of several colleges and universities in a 1992 federal class action 

against Celotex and other asbestos manufacturers did not provide SWU with 

standing in this bankruptcy court proceeding and (2) SWU failed to allege that it 

was a property damage claimant to whom the Trust owed a fiduciary duty. 

The bankruptcy court dismissed SWU’s Amended Complaint concluding 

that whether SWU was the class representative in the 1992 federal litigation, SWU 

had not been recognized in the bankruptcy court as the “class representative” of the 

National Universities Class Action, particularly regarding the filing of the class 

property damage claim of the National Universities Class Action. Additionally, 

the bankruptcy court concluded that SWU lacked standing to represent those 

members of the Class which have disputed property damage claims because SWU 

did not allege, nor produce any evidence, that it holds a disputed property damage 

 3 The Colleges, along with SWU and numerous other colleges and universities, are listed on the 

Complaint and Amended Complaint in this adversary proceeding.

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claim. The district court, sitting in review of the bankruptcy court, affirmed on the 

same grounds. SWU now seeks this Court’s review of the bankruptcy court’s 

order.

On appeal, SWU concedes that its conditional certification as class 

representative in the1992 national class action does not confer standing here, but 

argues that the bankruptcy court previously recognized it as the class representative 

of these colleges and universities for this bankruptcy proceeding. We, however, 

agree with the bankruptcy court’s and district court’s conclusion that, whether 

SWU has previously been acknowledged as the class representative of the 

“National Universities Class Action” in this bankruptcy proceeding does not 

necessarily mean that it can act as the class representative in this particular 

adversary proceeding, which asserts that the Trust violated a fiduciary duty to the 

six colleges that had disputed property damage claims. Instead, whether SWU 

could represent the class of colleges who have disputed property damage claims, 

SWU must allege that it meets the requirements for class certification, including 

the requirement that “the claims or defenses of the representative parties are typical 

of the claims or defenses of the class.” See Fed. R. Civ. P. 23(a)(3). See also Fed. 

R. Bankr. P. 7023 (requiring the application of Fed. R. Civ. P. 23 to adversary 

proceedings in bankruptcy). 

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Here, SWU did not allege in its Amended Complaint nor did it produce any 

evidence in response to the Trust’s challenge to SWU’s standing, that it had a 

disputed property damage claim. Thus, we see no error in the bankruptcy court’s 

conclusion that SWU “does not possess the same interest as members of the 

National Universities Class Action with Disputed PD Claims, and cannot represent 

the class members in this breach of trust action.”4

 

Accordingly, the bankruptcy court’s order dismissing SWU’s First Amended 

and Restated Complaint is AFFIRMED.5

 4

 Unrelated to its arguments on its Article III standing, SWU separately argues that the 

bankruptcy court did not have subject matter jurisdiction over this adversary proceeding. 

Essentially, SWU is challenging the bankruptcy court’s order that it has exclusive jurisdiction 

over the Colleges’ breach of fiduciary duty claims against the Trust, which order the bankruptcy 

court issued in response to the Colleges’ motion for leave to pursue such claims in a nonbankruptcy court forum. See supra n.2. We, however, need not address this argument because 

of SWU’s lack of standing. 

5 Although the bankruptcy court’s dismissal was without prejudice to SWU’s filing of a second 

amended complaint, SWU chose instead to appeal the bankruptcy court’s dismissal. SWU’s 

decision to appeal resulted in a waiver of SWU’s right to file another complaint. See Schurrman

v. Motor Vessel Betty K V, 798 F.2d 442, 445 (11th Cir. 1986).

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