Benton v. Department of the Army United States Army Aviation & Missile Command et al
MEMORANDUM OPINION and ORDER Dismissing Fewer than all Defendants that the court's previous memorandum opinion and order denying summary judgment is VACATED, RESCINDED, and WITHDRAWN; the motion for summary judgment filed by defendant Scott Burk e is GRANTED, and all claims against that defendant are DISMISSED. Nevertheless, this case remains pending against the, now sole, defendant: the United States of America; Trial will be set by separate order; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/16/2012. (AHI)
2012 May-16 AM 09:24
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SCOTT PHILLIP BURKE,
administrator of the estate of
KATHERINE BURKE, d/b/a
KATHI’S FLOWERS AND GIFTS,
Civil Action No. CV-11-S-493-NE
MEMORANDUM OPINION AND ORDER DISMISSING
FEWER THAN ALL DEFENDANTS
Plaintiff, Lizeth Benton, commenced this premises liability action against three
defendants: John Fowler, doing business as Redstone Flower Shop; Scott Phillip
Burke, administrator of the estate of Katherine Burke, doing business as Kathi’s
Flowers and Gifts; and the United States of America.1 The case presently is before
the court on a motion for reconsideration of the court’s denial of summary judgment,
filed by defendant Scott Burke.2
I. LEGAL STANDARD
Federal Rule of Civil Procedure 59(e) provides that: “A motion to alter or
See doc. no. 17 (Third Amended Complaint).
See doc. no. 39.
amend a judgment must be filed no later than 28 days after the entry of the judgment.”
However, a court may reconsider and modify or rescind an interlocutory ruling at any
time before a final judgment is entered. See Bon Air Hotel, Inc. v. Time, Inc., 426
F.2d 858, 862 (5th Cir. 1970) (addressing the district court’s reconsideration of its
earlier denial of summary judgment).3 The Federal Rules of Civil Procedure do not
specify the grounds on which a motion to reconsider may be granted. As a result,
federal courts have developed the common law standard that: “The only grounds for
granting a Rule 59 motion are newly discovered evidence or manifest errors of law
or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). A manifest error of law is “the
wholesale disregard, misapplication, or failure to recognize controlling precedent.”
Oto v. Metropolitan Life Insurance Co., 224 F.3d 601, 606 (7th Cir. 2000) (quoting
Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997)). “[A] Rule 59(e)
motion [cannot be used] to relitigate old matters, raise argument or present evidence
that could have been raised prior to the entry of judgment.” Arthur, 500 F.3d at 1343
(bracketed alterations in original) (quoting Michael Linet, Inc. v. Village of
Wellington, Florida, 408 F.3d 757, 763 (11th Cir. 2005)). The denial of a Rule 59(e)
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
the close of business on October 1, 1981.
motion “is ‘especially soundly exercised when the party has failed to articulate any
reason for the failure to raise the issue at an earlier stage in the litigation.” Lockard
v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir. 1998) (quoting O’Neal v. Kennamer,
958 F.2d 1044, 1047 (11th Cir. 1992)).
Federal Rule of Civil Procedure 56 provides that summary judgment “should
be rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).4 In other
words, summary judgment is proper “after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“A genuine issue of material fact ‘exists only if sufficient evidence is presented
favoring the nonmoving party for a jury to return a verdict for that party.’” Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999) (quoting Stewart v.
Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1284-85 (11th Cir. 1997)).
Rule 56 was amended, effective December 1, 2010, in conjunction with a general overhaul
of the Federal Rules of Civil Procedure. The Advisory Committee was careful to note, however, that
the changes “will not affect continuing development of the decisional law construing and applying
these phrases.” Adv. Comm. Notes to Fed. R. Civ. P. 56 (2010 Amends.). Consequently, cases
interpreting the previous version of Rule 56 are equally applicable to the revised version.
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). “[A]n inference is not reasonable
if it is only a guess or a possibility, for such an inference is not based on the evidence,
but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692
F.2d 1321, 1324 (11th Cir. 1983). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party
for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law”).
Plaintiff filed numerous amended complaints in this action, the sequence of
which is outlined in full in the memorandum opinion denying the motions for
summary judgment filed by defendants Fowler and Burke.5 For the purposes of ruling
on the motion to reconsider, it is sufficient to state that, at the time this case reached
the summary judgment stage, it included the three defendants named in the prefatory
paragraph of this opinion: i.e., John Fowler, doing business as Redstone Flower
Shop; Scott Phillip Burke, administrator of the estate of Katherine Burke, doing
business as Kathi’s Flowers and Gifts; and, the United States of America.6 Plaintiff
stated that Kathi’s Flowers and Gifts and Redstone Flower Shop were entities doing
business as “Petals and Blooms” on the United States Army’s Redstone Arsenal near
Huntsville, Alabama.7 In response to the third amended complaint, the United States
filed an answer.8 Fowler filed an answer in which he adopted and incorporated a
motion to dismiss or, in the alternative, a motion for summary judgment, that he had
filed in response to an earlier iteration of the complaint.9 Scott Burke responded to
the third amended complaint by filing a motion for summary judgment.10
Upon consideration of the foregoing pleadings, this court issued a
memorandum opinion and order denying both motions for summary judgment on
Doc. no. 37, at 3-5.
Doc. no. 17 (Third Amended Complaint) ¶¶ 2-3.
Id. ¶ 5.
Doc. no. 18.
Doc. no. 22.
Doc. no. 23.
March 13, 2012.11 This court ruled that, based on the evidence then in the record,
there existed a genuine issue of material fact that made entry of summary judgment
in favor of the moving defendants as a matter of law inappropriate.12 Specifically, the
decision turned on the issue of whether Kathi’s Flowers and Gifts was organized as
a sole proprietorship, as plaintiff’s claims would have been barred if it was such a
The direct evidence in the record suggested that it was a sole
proprietorship, but significant circumstantial evidence, viewed in the light most
favorable to plaintiff, allowed an inference that it was not.13 The parties took
depositions of plaintiff and Fowler on March 30, 2012.14 Scott Burke filed the motion
for reconsideration on April 23, 2012.15 The court entered a briefing schedule, but
plaintiff filed no response.16 Two days later, plaintiff filed a motion for the dismissal,
without prejudice, of all claims against Fowler.17 The court granted that motion and
dismissed the claims against Fowler on the following day.18
Doc. no. 37.
Id. at 13.
See doc. no. 39-1 (Deposition of John Fowler); doc. no. 39-2 (Deposition of Lizeth
Doc. no. 39.
Text Order of April 24, 2012.
Doc. no. 40.
Doc. no. 41.
The genesis of this action is a slip and fall injury suffered by plaintiff on
February 11, 2009.19 On that date, plaintiff was a business invitee at the Post
Exchange (“PX”) located on Redstone Arsenal.20 She was walking along a common
pathway adjacent to a flower shop.21 At the entrance to the store, there were two
buckets situated on a table.22 The buckets were filled with water and contained
bouquets of flowers.23 As patrons of the store removed flowers from the bucket,
water and leaves dripped onto the floor.24 Plaintiff slipped on the wet floor, fell, and
thereby sustained injuries.25
Katherine Burke, doing business as “Kathi’s Flowers and Gifts,” was awarded
a five-year contract to operate the flower shop at Redstone Arsenal on March 12,
2007, nearly two years prior to the events giving rise to this action.26 Her bid for the
contract indicated that her business was organized as a sole proprietorship, rather than
Deposition of Lizeth Benton, at 56.
Id. at 57.
See id. at 65.
Id. at 67.
Id. at 67-68.
Deposition of Lizeth Benton, at 68, 73.
Id. at 76-79.
Doc. no. 12-2 (Army & Air Force Exchange Service Solicitation/Proposal/Award, March
as a partnership or corporation.27 Katherine Burke died on September 10, 2009.28 On
September 30, 2009, letters of administration were granted to defendant Scott Burke,
appointing him as the administrator of the estate of Katherine Burke, deceased.29 The
probate records listing Katherine Burke’s assets do not include any ownership share
in a partnership, corporation, or other business.30
During the last decade of her life, Katherine Burke was involved in a romantic
relationship with defendant John Fowler.31 Although Katherine Burke owned her
own house, she primarily lived at Fowler’s home during that period.32 She had her
business mail delivered to Fowler’s address.33 When she became ill in 2009, she
asked Fowler to take care of any outstanding issues facing her business upon her
death.34 Fowler told her he would do so, knowing that he could ask her estate for
Id. (“OFFEROR REPRESENTS (Check Appropriate Boxes) . . . . That it operates as an
[X] Individual G Partnership G Corporation, incorporated in the State or Country of Alabama.”).
Doc. no. 23-2 (Probate Records, Katherine Burke), at 2.
Id. at 8-10.
See id. at 13.
Deposition of John Fowler, at 8.
Id. at 7-8 (“Q: And how long did Ms. Burke live with you at that address? A: Off and on,
for nine years, in and out. . . . Well, you know, people split up sometimes. She had her own
Id. at 37 (“Q: [D]o you have any knowledge as to why Ms. Burke utilized [Fowler’s
address] as the address for her business? A: I would assume it would be for convenience. She
wouldn’t have to go to her house to get the mail.”) (bracketed alterations supplied).
Id. at 26 (“Q: Okay. Why did you end up doing the Madison County sales taxes and rental
taxes for the flower shop, why not the executor for her estate? A: She asked me to make sure it was
paid, and do it before she died.”).
reimbursement.35 He paid her taxes and outstanding bills for “the last month right
after she passed away.”36 He testified that she ran her flower shop as a sole
proprietorship and had no partners.37 He testified that he only “visited” the store on
a few occasions while she owned it, that he was never employed by the flower shop,
and that he never shared in its profits or losses.38
During Katherine Burke’s lifetime, Fowler ran his own business, repairing
typewriters and cash registers.39 Nine months after the events giving rise to this
action, i.e., on November 3, 2009, Fowler, doing business as “Redstone Flower
Shop,” was awarded the contract to operate the flower shop at Redstone Arsenal.40
His bid indicated that his company was organized as a sole proprietorship.41 Fowler
testified that he decided to try the flower shop business after Katherine Burke died.42
Deposition of John Fowler, at 40 (“Well, she is the type of person that, you know, she just
wanted her stuff taken care of and she asked me to do it and I said I would, that was it.”) id. at 45
(“Q: You did it because you promised Ms. Burke you would do that? A: Yes. Q: Was there any
other reason that you did it? A: Well, I cared about her, I guess, and I knew, you know, I could file
it on her estate.”).
Id. at 27-28.
Id. at 26, 35.
Id. at19, 26, 28, 36.
Id. at 11.
Doc. no. 12-4 (Army & Air Force Exchange Service Solicitation/Proposal/Award,
November 3, 2009).
Deposition of John Fowler, at 51. He dissolved his machine repair business at some point
After her death, but before Fowler had secured his own contract to run the flower
store, Fowler took several actions on behalf of Katherine Burke’s business, including
filing tax returns and paying commercial debts.43 He testified that he found the
information needed to pay the sales taxes by reviewing the tape in Burke’s cash
register.44 The probate records list as among Katherine Burke’s liabilities “[b]usiness
debts” and “[b]usiness loans due to John Edward Fowler” in “unknown” amounts.45
Fowler testified that he sought reimbursement from the estate for the bills and taxes
he had paid for Katherine Burke’s flower shop.46 Some of the documents in the
record include “Redstone Flower Shop” as part of the name of Katherine Burke’s
company.47 Fowler testified that, when he was awarded the contract to operate the
flower shop, he was able to use some of the inventory that was already there.48
See doc. no. 13-1 (Plaintiff’s Exhibits in Opposition to Motion for Summary Judgment),
at Ex. A (Madison County Sales, Use and Rental Tax Return); id. at Ex. B (Personal Check of John
Fowler made out to “Madison County Sales Tax”); id. at Ex. D (Invoice, Davis Wholesale Florist);
id. at Ex. E (Personal Check of John Fowler to Davis Wholesale Florist).
As described in the previous paragraph, Fowler testified that he did so at Burke’s request.
Deposition of John Fowler, at 40, 45.
Deposition of John Fowler, at 31, 46.
Probate Records, Katherine Burke, at 14 (bracketed alterations supplied).
Deposition of John Fowler, at 42.
See, e.g., doc. no. 13-1 at Ex. A (“Redstone Flower Shop Kathi’s Flowers and Gifts”); id.
at Ex. D (“Kathy’s Flower Shop dba Redstone Flower Shop”).
Deposition of John Fowler, at 52 (“Q: Little teddy bears, things like that; so those you
don’t get daily, those you pay for? A: No. They were some there, yes. Q: But you didn’t have to
reimburse Kathi’s Flowers and Gifts for them, you just — A: I didn’t.”).
This court’s previous rulings on the individual defendants’ motions for
summary judgment stated that:
The outcome of the two summary judgment motions turns on one
question: whether Katherine Burke operated her flower shop as a sole
proprietorship. If the shop was a sole proprietorship, summary judgment
is appropriate. If there is a genuine issue of material fact on that
question, summary judgment is not appropriate.49
Based on the evidentiary record before the court at that time, there was a genuine
issue of material fact on the question of whether the flower shop was a sole
proprietorship. However, new evidence, in the form of deposition testimony, has
been added to the record. That evidence was not available at the time the court first
ruled on summary judgment, so reconsideration is appropriate.50 The additional
evidence produced in the deposition testimony of Fowler has eliminated the fact issue
that previously precluded summary judgment.
Scott Burke grounded his motion for summary judgment in the fact that
plaintiff did not provide the estate of Katherine Burke with timely notice of her
claim.51 Under the Alabama nonclaim statute, a plaintiff must provide notice within
Doc. no. 37, at 9.
Additionally, the dispositive motion deadline in this case was May 1, 2012, i.e., roughly
one week after the motion for reconsideration was filed. Thus, the motion for reconsideration would
be timely as a renewed motion for summary judgment.
Doc. no. 23, at 10.
six months of the granting of letters of administration (or five months of the date of
first publication of notice that the letters have been granted, if later) to preserve a
claim against the estate of a decedent. See Ala. Code § 43-2-350(a) (1975).
“Alabama law makes no distinction between an individual and a sole proprietorship
operated by the individual. They are considered the same for legal purposes.”
Carolina Casualty Insurance Co. v. Williams, 945 So. 2d 1030, 1035 (Ala. 2009)
(citing Clardy v. Sanders, 551 So. 2d 1057, 1059-60 (Ala. 1989)). Thus, any suit
against a sole proprietorship is actually a suit against the proprietor. If that proprietor
is deceased, the suit is subject to the rules governing suits against the estate of a
decedent, namely, the nonclaim statute referenced above. However, an entity other
than a sole proprietorship is distinct from the owner. Thus, if Kathi’s Flowers and
Gifts was not a sole proprietorship, the nonclaim statute would not apply, and Scott
Burke, as administrator of the estate of Katherine Burke, could potentially be liable
for the torts of the company.52
The record contains documents showing that Kathi’s Flowers and Gifts was
Plaintiff has not attempted to explain how the estate would remain liable if Kathi’s Flowers
and Gifts was not a sole proprietorship. Although plaintiff argues that the evidence in the record
supports an inference that the company was operated as a partnership or joint venture with Fowler,
she has not produced any proof that the estate of Katherine Burke maintains any interest in such an
entity. However, Scott Burke has not made any argument in favor of summary judgment other than
arguing that the company was a sole proprietorship.
established and operated as a sole proprietorship.53 It also contains the deposition
testimony of John Fowler, in which he stated that Katherine Burke operated her
flower shop as a sole proprietorship, that she had no partners, that he was not an
employee of the shop when she owned it, and that he never shared in the profits or
losses of her business.54 In denying summary judgment, the court stated that “there
is significant circumstantial evidence that is sufficient to create a genuine issue of
material fact regarding the organization of the flower shop.”55 That evidence
consisted of Fowler’s payment of taxes and other bills on behalf of Katherine Burke’s
company, the shared addresses of Burke’s business and Fowler’s home, and the fact
that “Redstone Flower Shop” appeared on some of the invoices directed to Kathi’s
Flowers and Gifts.56
The deposition evidence, however, which was not available at the time this
court previously ruled on the motions for summary judgment, eliminates any genuine
issue of material fact. Fowler’s testimony that Katherine Burke was living with him
explains why she used his home address, rather than the address of the house she
owned, for her business address. Fowler’s testimony explained how and why he came
See Army & Air Force Exchange Service Solicitation/Proposal/Award, March 12, 2007.
Deposition of John Fowler, at 26, 28, 35-36.
Doc. no. 37, at 11.
Id. at 12.
to pay her taxes. Combined with the unequivocal and uncontroverted documentary
evidence that both Fowler and Katherine Burke submitted bids to operate the flower
shop as a sole proprietorship, that testimony eliminates any doubt that Kathi’s
Flowers and Gifts was a sole proprietorship. The letters of administration were issued
on September 30, 2009, i.e., more than six months before plaintiff filed this case on
February 11, 2011.57 Thus, plaintiff’s claim against Scott Burke is barred by the
Alabama nonclaim statute, and summary judgment is due to be granted.
For the reasons stated herein, the court’s previous memorandum opinion and
order denying summary judgment is VACATED, RESCINDED, and WITHDRAWN.
The motion for summary judgment filed by defendant Scott Burke is GRANTED, and
all claims against that defendant are DISMISSED. Nevertheless, this case remains
pending against the, now sole, defendant: the United States of America. Trial will
be set by separate order.
DONE and ORDERED this 16th day of May, 2012.
United States District Judge
See Probate Records, Katherine Burke, at 8-10; doc. no. 1 (Complaint).
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