Bee's Auto, et al. v. City of Clermont

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10212
Non-Argument Calendar
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D.C. Docket No. 5:11-cv-00525-WTH-PRL
BEE’S AUTO, INC.,
a Florida corporation,
WAYNE E. WEATHERBEE,
Plaintiffs - Appellants,
versus
CITY OF CLERMONT,
Defendant - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 3, 2015)
Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Bee’s Auto, Inc. and Wayne E. Weatherbee1 (collectively, “Bee’s Auto”)
appeal the district court’s denial of their motion for partial reconsideration and to
alter the district court’s judgment under Federal Rule of Civil Procedure 59(e).
After careful consideration, we affirm.
I.
Bee’s Auto brought this action under 42 U.S.C. § 1983 asserting that the
City of Clermont, Florida had violated its constitutional rights by prohibiting it
from operating an automobile repair shop and storage facility. Bee’s Auto
purchased a parcel of land in the City in February 2006 and planned to operate its
automobile repair business there, but the City asserted that its zoning rules
prohibited the operation of an automobile repair shop on the land that Bee’s Auto
owned.
Bee’s Auto sued the City alleging that its enforcement of its zoning law
violated Bee’s Auto’s procedural and substantive due process rights and
constituted an inverse condemnation of property. Bee’s Auto also brought a state
law claim for equitable estoppel to stop the City from enforcing its zoning law.2
The City moved for summary judgment on these claims. In its brief, the
City argued that pursuant to a 1991 amendment to the City’s Comprehensive Plan
1 Mr. Weatherbee is the owner and president of Bee’s Auto, Inc.
2 Bee’s Auto also alleged that the City prohibited it from posting signs on the property
complaining about the City’s government, in violation of the First Amendment. The First
Amendment claim is not before the Court on appeal.
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Future Land Use Element (the “Plan”) an automobile repair shop could not operate
on the land owned by Bee’s Auto and that this zoning requirement applied to Bee’s
Auto because it had acquired the land after 1991. Bee’s Auto’s response did not
address the 1991 amendment in any way and presented no argument that the 1991
amendment was improperly enacted. The district court granted summary judgment
to the City on the claims related to the zoning of the property because the Plan had
prohibited the operation of automobile repair business on the property since 1991,
and because Bee’s Auto could have applied for a conditional use permit to operate
an automobile repair business on its land but refused to do so.3
Shortly after the district court entered final judgment,4 Bee’s Auto filed a
motion for partial reconsideration under Federal Rule of Civil Procedure 59(e).
Bee’s Auto asked the district court to reconsider the grant of summary judgment
based on newly discovered evidence that showed, according to Bee’s Auto, that the
City had not properly enacted the 1991 amendment to its Plan. The new evidence
consisted of a legal advertisement that the City placed in the South Lake Press, a
local weekly newspaper. According to Bee’s Auto, the notice shows that the City
failed to hold two public hearings or to give notice more than 14 days before
3 In 2007, the City amended the Plan via ordinance, specifically allowing an automotive
repair service on the property provided that Bee’s Auto applied for a conditional use permit.
4 The district court denied summary judgment to the City on Bee’s Auto’s First
Amendment claim, and the parties continued to litigate issues related to that claim. The district
court entered final judgment in July 2014.
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enacting the 1991 amendment, as required under Florida law and the City’s code;
thus, the 1991 amendment was never validly enacted. Bee’s Auto obtained a copy
of the City’s advertisement by reviewing archived copies of the newspaper from a
local library.
In its motion for reconsideration, Bee’s Auto asserted that it had not
previously discovered this evidence because the City had spoliated evidence by
destroying files that could have contained copies of the advertisement. In October
2011, the City purged a large collection of old records, which included files
described as “Advertisements: Legal” dating from December 28, 1916 through
September 30, 2010. Bee’s Auto assumes that a copy of the advertisement giving
notice of the 1991 amendment was in the files that were destroyed. Bee’s Auto
learned about the destruction of the records because it obtained a copy of a
“Records Disposition List” created by the City that catalogued the categories of
records it was destroying. Bee’s Auto has not explained how it obtained the
Records Disposition List or why it did not raise a spoliation argument prior to the
entry of final judgment.
More than a year before Bee’s Auto filed this lawsuit, it sent a cease and
desist letter to the City directing it not to destroy its files. Bee’s Auto reminded the
City that under Florida law it could destroy public records only pursuant to an
established retention schedule established by the State. See Fla. Stat. § 257.36(6).
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At the time it sent the letter, Bee’s Auto had a separate lawsuit pending against the
City in federal court and warned the City that if it destroyed documents that could
be relevant Bee’s Auto’s claims in that case, it could be sanctioned.
The district court denied Bee’s Auto’s motion for reconsideration in a short
order. This is Bee’s Auto’s appeal.
II.
We review the district court’s denial of a Rule 59 motion to alter or amend a
judgment for abuse of discretion. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
957 (11th Cir. 2009). A court abuses its discretion only “if it makes a clear error of
judgment or applies an incorrect legal standard.” Bradley v. King, 556 F.3d 1225,
1229 (11th Cir. 2009). We readily conclude that the district court did not abuse its
discretion here.
A district court may grant a Rule 59(e) motion to alter or amend a judgment
only when there is “newly-discovered evidence or manifest errors of law or fact.”
Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010) (internal
quotation marks omitted). In other words, 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.” Michael Linet, Inc. v. Vill. of Wellington,
Fla., 408 F.3d 757, 763 (11th Cir. 2005). Bee’s Auto argues that the district court
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abused its discretion when it denied the Rule 59(e) motion because there was
newly discovered evidence.
When a party moves for reconsideration under Rule 59(e) based on newly
discovered evidence, a district court “should not grant the motion absent some
showing that the evidence was not available during the pendency of the motion.”
Mays v. United States Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997) (per curiam).
If the evidence was available while the motion was pending, then the movant must
show that “counsel made a diligent yet unsuccessful effort to discover the
evidence.” Chery v. Bowman, 901 F.2d 1053, 1057 n.6 (11th Cir. 1990).
III.
Bee’s Auto’s newly discovered evidence consists of an advertisement that
the City placed in a weekly newspaper in 1991 and the Records Disposition List.5
Bee’s Auto has failed to show that this newly discovered evidence was unavailable
during the pendency of the summary judgment motion. Bee’s Auto located copies
of the advertisement by searching archived editions of a local newspaper that were
kept in the local library; there is no indication whatsoever that this advertisement
was unavailable while the summary judgment motion was pending. The Records
5 Bee’s Auto also relies on a third piece of newly discovered evidence, which is an
agenda for a City council meeting from February 1991. We note that Bee’s Auto has offered no
evidence or explanation about when or how it located this document. Because it has not argued
that the document was not previously available or that it was diligent in locating the document,
the agenda is not newly discovered evidence.
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Disposition List, which was created in October 2011, also existed while the
summary judgment motion was pending, and Bee’s Auto has presented no
argument that the document was unavailable to it.
Now, we must consider whether Bee’s Auto’s counsel acted with diligence
to discover these documents. As to the advertisement, Bee’s Auto argues that its
counsel was diligent because he sent the City a document preservation letter in
another case in which Bee’s Auto sued the City and because the City should have
produced a copy of the advertisement during discovery in this case. Essentially,
the thrust of Bee’s Auto’s argument is that its counsel had no way of knowing that
the City’s document production was incomplete.
We cannot say that the district court abused its discretion given the record
evidence regarding diligence. It is clear that Bee’s Auto never searched for the
advertisements that the City placed in connection with the 1991 amendment until
after the district court entered final judgment. But the City argued in its motion for
summary judgment—filed nearly two years before the district court entered final
judgment—that an automobile repair shop could not be operated on the land Bee’s
Auto owned under a 1991 amendment to the Plan. Upon receiving the City’s
summary judgment brief, Bee’s Auto knew (or should have known) that to survive
summary judgment it needed to explain why the 1991 amendment to the Plan did
not apply. At that point, Bee’s Auto could have searched the City’s legal
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advertisements from 1991 to determine whether the City had complied with state
law and city ordinances requiring it to provide public notice before changing
zoning rules. The City’s document production did not excuse Bee’s Auto from
searching publicly available documents, like old copies of old local newspapers
kept at the local library. Instead Bee’s Auto chose to ignore the City’s arguments
about the 1991 amendment at the summary judgment stage, waiting until after the
district court entered final judgment to introduce evidence from publicly available
documents about the amendment.
Bee’s Auto tries to blame the City for destroying evidence, but it has not
shown that it was diligent in raising the spoliation of evidence argument. Although
Bee’s Auto asserts that it first learned from the Records Disposition List that the
City had destroyed evidence, it has presented no evidence identifying the steps it
took to obtain the Records Disposition List prior to the entry of final judgment or
showing when it obtained the Records Disposition List. Because Bee’s Auto has
failed to explain why it was unable to raise the spoliation argument prior to the
entry of final judgment, we simply cannot say that its efforts to discover the
evidence were diligent. Thus, the district court did not abuse its discretion when it
denied the Rule 59(e) motion.
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IV.
For the foregoing reasons, we affirm the district court’s judgment.
AFFIRMED.
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