Southeast Arkansas Housing Associates, Limited Partnership v. Benham Companies, LLC, The

Filing 18

MEMORANDUM OPINION AND ORDER denying 8 Plaintiff's Motion for Partial Summary Judgment. Signed by Honorable Robert T. Dawson on June 2, 2011. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
SOUTHEAST ARKANSAS HOUSING
ASSOCIATES, LIMITED PARTNERSHIP
v.

PLAINTIFF

No. 2:10-CV-2113

THE BENHAM COMPANIES, LLC

DEFENDANT

MEMORANDUM OPINION AND ORDER
Currently before the Court are Plaintiff Southeast Arkansas
Housing Associates, Limited Partnership’s (“SEAHALP”) Motion for
Partial Summary Judgment (Doc. 8), Brief in Support (Doc. 9), and
Statement of Undisputed Facts (Doc. 10).

Defendant The Benham

Companies, LLC (“Benham”) has filed a Response (Doc. 15), Brief in
Support (Doc. 16), and Statement of Material Facts as to Which a
Genuine Issue Exists (Doc. 17).
For the reasons set forth herein, Plaintiff’s Motion for
Partial Summary Judgment (Doc. 8) is DENIED.
I. Background
In 1968 the U.S. Congress passed the National Flood Insurance
Act,

which

created

the

National

Flood

Insurance

Program

(42

U.S.C.A. § 4001 et seq. (1968)).

This insurance program was

designed

losses

to

reduce

future

flood

through

community

management of the local floodplain, the flat or nearly flat area of
land that is susceptible to flooding due to its proximity to a
river or stream (http://www.fema.gov).

Along with the creation of

this flood insurance program, the government required that if a
property owner

wished

to have

his

property removed

from the

designated floodway boundary area, community officials would be
required to submit the request to the Federal Emergency Management
Agency (“FEMA”) in accordance with 44 C.F.R. § 65 et seq. (2009).
FEMA in turn would then review the community’s request and, if a
subsequent change in the floodplain map were approved, issue a
letter of revision to remove the property in question from the
floodplain.
In the instant case, Plaintiff SEAHALP is an Arkansas limited
partnership that owns an apartment complex which lies in the
Monticello, Arkansas floodplain.

Several years ago, Plaintiff and

Defendant Benham were involved in litigation with other parties
concerning flooding in a few of the apartment buildings near a
tributary of Ten Mile Creek, which was adjacent to the property.
Defendant Benham performed civil engineering work on the apartment
complex, and after the flooding, Benham was made a party to the
subsequent litigation.
In May of 2008, the parties agreed to dismiss the prior
litigation with prejudice and enter into a Mediation Settlement
Agreement (“Agreement”).

The Agreement required Benham to do what

was necessary to obtain a Conditional Letter of Map Revision
(“CLOMR”) from the U.S. Army Corps of Engineers to begin the
process

of

having

the

apartment

2

complex

removed

from

the

floodplain.

The Agreement then required Benham to “pay for or

perform the remedial work necessary to obtain a Letter of Map
Revision (“LOMR”)” from FEMA, using Benham’s “best efforts . . .
within twenty-four (24) months or less from the date of the
separate Mediation Settlement Agreement . . .” It was contemplated
that the LOMR would effectively remove SEAHALP’s property from the
floodplain.
Benham obtained the CLOMR for the property at issue in April
of 2008 by submitting the necessary documents and other materials
to the City of Monticello.

The City in turn submitted the CLOMR

application to FEMA, and FEMA granted the CLOMR.

Then on or before

April of 2009, Benham undertook site work on SEAHALP’s property in
order to obtain the LOMR.
Benham did not obtain the LOMR within 24 months of the date of
the Agreement with SEAHALP.

Furthermore, as of the date of this

Order, Benham has not yet obtained the LOMR.

The only question for

the Court to decide on summary judgment is whether a genuine
dispute of material fact exists regarding Benham’s liability to
Plaintiffs for breach of the 2008 Agreement.

To determine the

answer to this question, the Court must examine whether or not
Benham used its “best efforts” to “pay for or perform the remedial
work necessary to obtain [the LOMR],” as the Agreement required.
II.

Standard of Review
In determining whether summary judgment is appropriate, the

3

moving party bears the burden of establishing both the absence of
a genuine issue of material fact and that it is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106
S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Nat’l. Bank of Commerce of El
Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999).

The

Court must review the facts in a light most favorable to the party
opposing a motion for summary judgment and give that party the
benefit of any inferences that logically can be drawn from those
facts. Canada v. Union Elec. Co., 135 F.3d 1211,

1212-13 (8th Cir.

1998) (citing Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.
1983).
In order for there to be a genuine issue of material fact, the
non-moving party must produce evidence “such that a reasonable jury
could return a verdict for the nonmoving party.” Allison v. Flexway
Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248(1986)); see also Brinkley v.
Entergy Operations, Inc., 602 F.3d 928, 931 (8th Cir. 2010)(“the
non-moving party must be able to show sufficient probative evidence
that would permit a finding in his favor on more than mere
speculation, conjecture, or fantasy”).
III. Discussion
The breach of contract issue central to Plaintiff’s Motion for
Partial Summary Judgment is whether the Defendant used its “best
4

efforts” to obtain the LOMR in a 24-month period.

Simply because

the LOMR has not been obtained within the time period does not mean
that Defendant did not use its best efforts in attempting to obtain
it.

Both parties concede that obtaining the LOMR is a process

involving

approval

and

cooperation

with

City

officials and FEMA administrators, among others.

of

Monticello

The process is

not wholly within Defendant’s control.
Plaintiff contends Defendant failed to use its best efforts to
obtain the LOMR because Defendant did not conduct the site work
necessary to prevent Plaintiff’s apartment complex from continuing
to flood.

Plaintiff also asserts that “[t]he LOMR has not been

approved due to the continued flooding of the property.”
Plaintiff

states that

the City

of

Monticello has

Further,

halted

the

progress of the LOMR application because the City does not believe
that Benham’s remedial work at the site was sufficient.

As proof

of this assertion, Plaintiff cites to a letter from Defendant’s
counsel to the Mayor of the City of Monticello (Doc. 8-4) in which
counsel states “the City feels the work that Benham has done has
not kept the property from flooding.”
Defendant Benham counters that its remedial site work in April
of 2009 was sufficient to obtain the LOMR, and several other
factors

explain

including

lack

why

the

LOMR

has

of

communication

not

been

among

granted

City

of

to

date,

Monticello

administrators, changes in staff at the City-wide level, and City

5

officials’ misunderstanding of the LOMR process.

Further, Benham

provides numerous letters, a phone log, and an affidavit showing
that Benham and its counsel have been in communication with City
officials to obtain the letter needed for the LOMR.

Benham states

that it has “diligently tried to get the necessary letter from the
City” and “believes it is making progress.”

Doc. 15, p. 5.

In reviewing the facts in a light most favorable to the nonmoving party, as is required, the Court finds that Plaintiff has
failed to meet its burden of establishing the absence of a genuine
issue of material fact.

Plaintiff and Defendant disagree about

whether Benham’s 2009 remedial work was sufficient to obtain the
LOMR.

The fact that the LOMR has not been granted does not mean

that Defendant failed to meet its burden of using its best efforts
to obtain the LOMR.

There are material disputes of fact regarding

the reasons why the City of Monticello has failed to submit the
letter necessary to complete the LOMR application process. Whether
that failure is administrative in nature and the City’s fault due
to oversight, misunderstanding, foot-dragging, or the like, or
whether the failure is due to the City’s dissatisfaction with some
aspect of Benham’s performance in the LOMR application process, the
disputes

of

material

fact

remain,

and

summary

judgment

is

inappropriate.
IV.

Conclusion
Plaintiff’s Motion for Partial Summary Judgment (Doc. 8) is

6

DENIED.

The parties are ordered to appear for a settlement

conference on Thursday, June 23, 2011, before Magistrate Judge
James R. Marschewski.

If the case does not settle, a bench trial

is set for the week of July 26, 2011.

IT IS SO ORDERED this 2nd day of June 2011.

/s/ Robert T. Dawson
Robert T. Dawson
United States District

7

Judge