Loxley South, LLC v. Western Express, Inc. et al

Filing 107

ORDER denying 106 Motion to Alter Judgment. Signed by Judge Kristi K. DuBose on 8/5/2011. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LOXLEY SOUTH, L.L.C.,
Plaintiff,
v.
WESTERN EXPRESS, INC.,
Defendant.

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CIVIL ACTION NO. 10-00024-KD-N

ORDER
This action is before the Court on the motion to alter or amend final judgment and order
filed by plaintiff Loxley South, L.L.C. (doc. 106). Pursuant to Rule 59(e) of the Federal Rules of
Civil Procedure, Loxley South moves the Court to alter or amend its judgment entered June 21,
2011 (doc. 105) and its interlocutory order entered on May 10, 2011 (doc. 98). Upon
consideration and for the reasons set forth herein, the motion is DENIED.
“The only grounds for granting [a motion to alter judgment] are newly-discovered
evidence or manifest errors of law or fact.” Anderson v. Vanguard Car Rental USA Inc., 2011
WL 2149486, 2 (11th Cir. June 1, 2011) (slip copy) (unpublished opinion) (bracketed text in
original) (quoting Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (per curiam)). A
“motion to alter judgment may not be used ‘to relitigate old matters, raise argument or present
evidence that could have been raised prior to the entry of judgment.’” Id. Thus, the motion
“cannot be brought solely to relitigate issues already raised in an earlier motion.” Harris v.
Corrections Corp. of America, 2011 WL 2672553, 1 (11th Cir. July 11, 2011) (citing Michael
Linet, Inc. v. Vill. of Wellington, 408 F.3d 757, 763 (11th Cir. 2005)). (quoting Kellogg v.
Schreiber ( In re Kellogg), 197 F.3d 1116, 1119 (11th Cir.1999)). Also, “a motion to reconsider

should not be used by the parties to set forth new theories of law.” Mays v. United States Postal
Service, 122 F.3d 43, 46 (11th Cir. 1997)
Relying upon principles of statutory construction, Loxley South argues that the Court
committed clear error by finding that Section 4.4B of the Town of Loxley Subdivision
Regulations was not ambiguous and by equating the word “involved” with the word
“contemplated”. Loxley South argues that the correct and reasonable interpretation of the
phrase “street construction is involved” means street construction “commenced prior to approval
by the Loxley Planning Commission”, and that contemplating the construction of streets at some
unspecified future date, not as a part of an immediate plan, is not the equivalent of “involved.”
Loxley South argues that after erroneously finding that street construction was
“involved” in the sale of land between Loxley South and Western Express, Inc. (Western)
because the parties “contemplated” the construction of a road after approval by the Loxley
Planning Commission, the Court erroneously held that the land was not exempt from the
Regulations. Loxley South argues that based upon a finding that the land was not exempt, the
Court then improperly relied upon Kilgore Development, Inc. v. Woodland Place, LLC, 47 So. 3d
267 (Ala. Civ. App. 2009), to find that the Agreement between Loxley South and Western
violated the Regulations and the Alabama Subdivision Control Statute, Ala. Code § 11-52-33,
and thus was void and unenforceable.
Regulation 4.4 sets forth, in relevant part, as follows:
4.4 Applicability
The following shall not be included within the definition of subdivision or
be subject to the requirements thereof: . . .
B. The division of land into parcels greater than five (5) acres where no
street construction is involved. Any further division of this original tract will
require a recording of a subdivision plat.

(doc. 77-2, p. 21, Exhibit 12).
However, the Court has considered this argument and found that although the land sold
was greater than five acres and no finished street or street under construction was currently on
the land, street construction was involved because the parties contemplated the construction of a
street when they entered into the Agreement. The Agreement was based upon a plat of an
unrecorded subdivision and Western agreed to construct a street on the land. Regardless of
whether the street would not be constructed until after Planning Commission approval and
recordation of the subdivision plat, street construction was involved.
DONE this 5th day of August, 2011.

/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE