Nixon v. Nationwide Mutual Insurance Company

Filing 83

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/11/2017. (PSM)

FILED
2017 Oct-11 PM 01:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
CRAWFORD NIXON,
Plaintiff,
v.
NATIONWIDE MUTUAL
INSURANCE COMPANY,
Defendant.

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7:15-cv-00186-LSC

MEMORANDUM OF OPINION
Plaintiff Crawford Nixon (“Nixon”) filed this action against Nationwide
Mutual Insurance Company (“Nationwide”), alleging that Nationwide breached
its Standard Flood Insurance Policy (“SFIP”) with Nixon by denying Nixon’s
claim for benefits under the SFIP. Before this Court is Nixon’s second motion to
alter or amend judgment. (Doc. 79.) In the motion, Nixon urges this Court to
reconsider under Federal Rule of Civil Procedure 59(e) its Order granting summary
judgment in favor of Nationwide (the “Summary Judgment Order”) and its
Memorandum of Opinion and Order denying Nixon’s first motion to alter or
amend (the “First MAA Order”). Nixon argues this Court committed a manifest
error of fact because it construed Nixon’s previous pleadings to not include claims

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for repair to the structure of Nixon’s home (“structure damages”). For the reasons
stated below, Nixon’s second motion to alter and amend is due to be DENIED.
I.

RELEVANT PROCEDURAL HISTORY

On March 21, 2017, the Court entered the Summary Judgment Order in
favor of Nationwide and dismissed Nixon’s claim. (See Doc. 72.) The Court found
that Nixon had failed to show he was entitled to damages to repair flood-related
land erosion (“land damages”) or damages for relocating his home (“relocation
damages”). Nixon filed a timely motion to alter or amend judgment under Rule
59(e) on April 3, 2017. (Doc. 73.) After the motion was briefed by both parties, the
Court on September 13, 2017, entered the First MAA Order, which denied Nixon’s
motion. (Doc. 77.)
On September 25, 2017, Nixon filed his second motion to alter or amend
judgment. (Doc. 79.) The Court entered an Order, (doc. 80), prompting
Nationwide to respond to Nixon’s second motion to alter or amend. The Order
stated that upon receipt of Nationwide’s response the Court would consider
Nixon’s motion without further notice to the parties. Nationwide responded, and
although the Court’s Order did not give Nixon leave to file a reply to Nationwide’s
response, he did so anyway on October 6, 2017. (Doc. 82.) The Court considers

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Nixon’s reply that was filed without leave, although the content of the reply does
not change the ultimate result of this Order.
II.

DISCUSSION
a. NIXON’S SECOND MOTION
TIMELY

TO

ALTER

OR

AMEND

IS

NOT

Under Rule 59(e), a “motion to alter or amend a judgment must be filed no
later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). The
Court may not extend Rule 59(e)’s time limit, according to Rule 6(b)(2). Thus, the
Court is without discretion to allow Nixon’s motion to be heard if it is untimely
under Rule 59(e) and cannot extend the twenty-eight day limit. See Wright v.
Preferred Research, Inc., 891 F.2d 886, 890 (11th Cir. 1990).
To determine whether Nixon’s motion is timely, the Court has to determine
which order Nixon’s motion seeks to alter or amend: the Court’s March 21, 2017
Summary Judgment Order or the September 13, 2017 First MAA Order. In his
second motion to alter or amend, Nixon begins by stating the Court failed in both
orders to address structure damages; however, he focuses his arguments almost
exclusively on the contents of the Court’s Summary Judgment Order. Nixon does
not argue that the Court’s First MAA Order was wrong in its consideration of the
interpretation of the meaning of “dwelling” in the SFIP, which was the sole issue
challenged by Nixon’s first motion to alter or amend:
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[Nixon] moves the Court to reconsider the portion of its order
granting summary judgment for the Defendant discussed at pages 1012 of its [Summary Judgment Order]. . . . Specifically, the Court stated
that the term “dwelling,” defined as a “building,” did not include soil
providing lateral and subjacent support to the structure. Plaintiff
respectfully submits that this is incorrect.
(Doc. 73 at 1.) Nixon’s second motion to alter or amend in reality does not
challenge the Court’s First MAA Order, but rather its earlier Summary Judgment
Order.
Nixon nonetheless argues in his current motion that he is actually
challenging the First MAA Order because it failed to address a statement about
damages to his home made in a footnote to his first motion to alter or amend. This
sole reference to structure damages in Nixon’s first motion to alter or amend is
buried in his argument that the term “dwelling” includes soil under the building.
Nixon states in a footnote that: “[Nationwide’s representative and expert] testified
that the term ‘dwelling’ includes the exterior stairs, the slab and wooden pilings,
and the subterranean soil providing support. The flood in this case damaged each
such element. Yet the Court’s decision bars coverage for all of this.” (Doc. 73 at 2
n.1 (internal citations omitted).) Nixon’s non sequitur footnote, without any citation
to any legal authority, is not enough to raise an argument about structure damages.
The footnote quotes Nationwide’s representative and expert’s testimony, but does
not show how that testimony has any bearing on Nixon’s right to recovery for
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structure damages. Even after Nationwide’s response to Nixon’s first motion to
alter or amend addressed the definition of “dwelling,” Nixon did not use his reply
brief to correct the Court’s focus to structure damages and instead continued to
argue about the meaning of “dwelling.” (See Doc. 76.) Nixon cannot make the
second motion to alter or amend timely by saying he challenges the Court’s First
MAA Order, where the second motion to alter or amend—outside of its lone
reference to the Court’s supposed failure to address the non sequitur footnote—
solely disputes the basis for the Court’s earlier Summary Judgment Order. See Four
Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1167 (11th Cir.
2004) (appellant cannot incorporate arguments made in lower court by reference in
appellate brief).
Nixon’s second motion to alter or amend is an attempt to have the Court
revisit the legal and factual basis of its March 21, 2017 Summary Judgment Order
and not the grounds for its September 13, 2017 First MAA Order. The motion was
filed well after the twenty-eight day period following the Court’s grant of summary
judgment in favor of Nationwide on March 21, 2017. Thus, even if Nixon’s present

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motion was meritorious, the Court is without discretion to grant the motion
because it is untimely. 1
b. NIXON FAILS TO SHOW A MANIFEST ERROR OF FACT IN THIS
COURT’S PREVIOUS ORDERS
Putting timeliness issues aside, Nixon has not shown that the Court’s earlier
grant of summary judgment contained a “manifest error of fact.” Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007) (“The only grounds for granting [a Rule 59]
motion are newly-discovered evidence or manifest errors of law or fact.” (internal
citation omitted)). A party may not use a motion for reconsideration to introduce
additional facts or new theories of law not raised prior to the entry of judgment, or
to litigate old matters. Id. Nixon’s argument fails because he ultimately does not
show he properly raised the argument he charges the Court as having missed.
Nixon argues the Court misinterpreted his earlier pleadings and did not
address his argument concerning structure damages. Nixon’s Opposition to
Summary Judgment includes two statements in the “Undisputed Facts” section
that he characterizes as relating to structure damages. These references state:
“Erosion from the flood damaged the ‘dwelling’ in several ways, including, but not

In his reply filed without leave of the Court, Nixon asks for relief in the alternative under Rule
60(b)(1). As the Court finds that Nixon’s argument that the Court committed an error of fact
lacks merit, construing his argument as seeking relief under Rule 60(b)(1) does not change the
result. Nisson v. Lundy, 975 F.2d 802, 806 (11th Cir. 1992) (“untimely Rule 59(e) “motions may
. . . be treated as Rule 60(b) motions if grounds stated would be a basis for Rule 60(b) relief”).
1

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limited to, the slab, one of the pilings, the stairs, and its subjacent and lateral
support (which flood waters undermined and substantially removed),” (doc. 67 at
2-3.), and “[m]ore work on [erosion mitigation work], as well as the slab and
pilings, is necessary.” Id. Both statements refer to damage to the dwelling itself.
Nixon further claims that he submitted a bid from Price McGiffert
Construction dated November 12, 2014 (the “McGiffert Estimate”) to Nationwide
for structure damages and that the Court “mistakenly believed that the McGiffert
Estimate was for ‘relocation damages’ of Nixon’s home to a different area on the
property.” (Doc. 79 at 2.) In his second motion to alter or amend, Nixon attached a
new affidavit, dated September 25, 2017, where he states that the McGiffert
Estimate was for structure damages. (See Doc. 79 Ex. 2.) Because Nixon could have
brought this affidavit in his Opposition to Summary Judgement but didn’t, the
Court does not consider it. Arthur, 500 F.3d at 1343 (“[A] Rule 59(e) motion
[cannot be used] to .

. . present evidence that could have been raised prior to the

entry of judgment.” (internal citation omitted)).
Putting aside the procedural tardiness of Nixon’s new affidavit, it is also a
self-serving attempt to contradict his earlier sworn testimony on the purposes of
the McGiffert Estimate. During his deposition, Nixon stated the McGiffert
Estimate was for work to relocate the house to a different part of the property:
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Q: Do you recognize this document?
A: Yes.
Q: What is it?
A: It’s a bid from Price McGiffert Construction Company to—of the
work that we needed to be done in order to move the house to the new
house pad that we had built. . . .
Q: Has [the bid] been paid?
A: It’s just a bid, it’s not an invoice, because none of—this work has,
you know, this work has not been done. This is just basically what will
need to be done in order to, you know, disassemble and reassemble the
house to, you know, get it on the new house pad that we’ve built
which is on more stable ground a little father back off the river bank.
(Doc. 64 Ex. 4 at 39, 42.)
In apparent reliance on Nixon’s sworn testimony, Nationwide attached the
McGiffert Estimate to its motion for summary judgment as Exhibit 19 and referred
to it as an estimate of the costs to relocate the Nixon’s home, but not as an estimate
of structure damages:
In support of his alleged damages to relocate his home further away
from the Black Warrior River, Nixon provided . . . an estimate from
Price McGilfert [sic] Construction Co. dated November 12, 2014 in
the amount of $39,775.20 for disassembling and reassembling the
house, if it were to be moved, hereinafter referred to as “Relocation
Damages.”
(Doc. 63 at 9.) Nixon did not object in any of his filings to Nationwide’s portrayal
of the McGiffert Estimate until the present motion.
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While the Court did not give Nixon leave to file a reply, he did so anyway
and included therein a citation to the deposition of Nixon’s Father, who testified
that the McGiffert Estimate was for repair to the existing dwelling and not for
relocation damages. (Doc. 82 at 3.)2 Unlike Nixon’s untimely affidavits, (see docs.
79-2 & 82-1), Nixon’s Father’s deposition was part of the factual record at the time
of summary judgment. (See Doc. 64-10 at 108-09.) However, Nixon never cited this
testimony in his Opposition to Summary Judgment to contradict Nationwide’s
argument that the McGiffert Estimate was for relocation damage. He now directs
the Court’s attention to it for the first time during his second motion to alter or
amend. The Court is under no duty to scour the record for facts not cited by the
parties. See Fed. R. Civ. Pro. 56(c)(3) (“The court need consider only the cited
materials, but it may consider other materials in the record.”); see also Chavez v.
Sec’y Florida Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (A district court is
not “required to mine the record, prospecting for facts that the habeas petitioner
overlooked and could have, but did not, bring to the surface in his petition.”)
Nixon failed to include this testimony in his Opposition to Summary Judgment,
and the Court did not commit manifest error by failing to cull an argument for

2

In his reply, Nixon included a second affidavit, sworn October 5, 2017, that purports to correct
his earlier deposition misstatement. As stated above, the Court does not consider evidence that
could have been brought prior to the entry of judgment, but was not. Arthur, 500 F.3d at 1343.
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Nixon when counsel did not do so. Nixon’s about-face on the purpose of the
McGiffert estimate for structure damages is unpersuasive.
Nixon’s “Arguments” section of his Opposition to Summary Judgment
includes four sections: (1) Proof of Loss; (2) Land Damage; (3) Temporary
Repairs; and (4) Relocation Damages. Nixon did not include a section to address
any legal argument for recovery for structure damages. Throughout all the
arguments Nixon makes, the only reference that can be construed as referring to
any sort of structure damages arises in his “Land Damages” section, which
responded to Nationwide’s contention that the SFIP does not cover the cost of
replacing and reinforcing the land that lies under the dwelling. (Doc. 63 at 18.)
In the Land Damages section, Nixon argued the term “dwelling” in the
SFIP includes the land on which the dwelling sits and thus he was entitled to land
damages:
Nationwide’s reliance on its “land” exclusion is also misplaced.
Nationwide admits that its policy covers losses from land subsidence
as a result of erosion. (Magnuson Depo., 63-64 and Exhibit 2, p.9
thereto). Nationwide also admits that when applied to Ford Nixon’s
river home, the term “dwelling” includes not merely the four walls,
but also the subterranean soil serving as the lateral and subjacent
support for the dwelling. (Magnuson Depo. 107, 116-17; Aikens Depo.,
46-48, 91-93). It is undisputed that the “dwelling” was damaged by
the flood.
Nationwide does not point to an exclusion that applies to the
subterranean soil serving as lateral and subjacent support and,
therefore, within the meaning of “dwelling.”
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(Doc. 67 at 7.) The parts of the Magnuson deposition cited by Nixon refer to land
subsidence; the parts of the Aikens deposition refer to groundwater’s effect on the
land underneath the dwelling and the pilings. (See Magnuson Depo. at 63-64;
Aikens Depo. at 46-48, 91-93.) As noted above in his first motion to alter or amend
Nixon challenged the Court’s interpretation of “dwelling” in relation to land
damages, but did not use the motion to clarify that he was also seeking structural
damages. Nixon’s argument clearly goes to land damages, not to structure
damages.
While Nixon included a section titled “Temporary Repairs” in his
Opposition to Summary Judgment, he did not use this section to argue that the
McGiffert Estimate was for structure damages or that the dwelling itself needed
repairs. (Doc. 67 at 8-9.) Instead, he argued that he was entitled for reimbursement
for efforts to temporarily shore-up the land supporting the base of the house, which
the Court addressed in its Order. (Doc. 71 at 8-9, 11-12.)
In summary, Nixon argues that the Court committed manifest error by
failing to piece together his two statements in the “Undisputed Facts” section; two
new, untimely affidavits that contradict his earlier deposition; and the testimony of
Nixon’s father that Nixon failed to cite until his reply motion. Although not raised
by Nixon, the Court considered on its own the vague allusion to structure damages
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included in Nixon’s land damages argument. Nixon has failed to meet his high
burden of showing manifest error of fact because the parts of the pleadings he cites,
taken together, cannot comprise an argument for structure damages. The Court has
no duty to form these raw facts into an argument:
[t]here is no burden upon the district court to distill every potential
argument that could be made based upon the materials before it on
summary judgment. Rather, the onus is upon the parties to formulate
arguments . . . .
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)
(quotations and citations omitted); see Case v. Eslinger, 555 F.3d 1317, 1329 (11th
Cir. 2009) (Appellant “cannot readily complain about the entry of a summary
judgment order that did not consider an argument [he] chose not to develop for the
district court at the time of the summary judgment motions.”); United States v.
Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (Appellant did not properly
preserve issue where “brief contains only four passing references to the [issue
allegedly raised], each of which is embedded under different topical headings.”);
Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563,
1568 (11th Cir. 1994) (“[A] ground not pressed in the district court in opposition to
a motion for summary judgment is to be treated by the district court as
abandoned.” (quoting Lazzara v. Howard A. Esser, Inc., 802 F.2d 260, 269 (7th Cir.
1986))). Nixon’s previous filings made no tenable argument concerning structure
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damages. He cannot now point at solitary, passing references to structure damages
and argue the Court erred by not divining a winning argument for him.
Finally, because Nixon did not adequately raise an argument for structure
damages in his Opposition to Summary Judgment, the Court yet again declines to
rule on the “earth movement” exception. (See Doc. 71 at 10.) Any issue of fact
relative to whether the actual cause of damage was caused by the flood or resulting
earth movement is immaterial, as all damages that Nixon timely alleged, the land
and relocation damages, are not covered or excluded by the SFIP. (Id.)
III.

CONCLUSION

Because Nixon’s second motion to alter or amend is untimely and shows no
manifest error of fact by the Court, his second motion to alter or amend (Doc. 79) is
due to be DENIED. An Order consistent with this Opinion will be entered
separately.
DONE and ORDERED on October 11, 2017.

_____________________________
L. Scott Coogler
United States District Judge
190485

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