United States District Court, D. South Carolina
Stoneledge at Lake Keowee Owners Association, Inc., Plaintiff/Counter Defendant,
Cincinnati Insurance Company and Builders Mutual Insurance Company, Defendants/Counter Claimants.
OPINION AND ORDER
Howe Hendricks United States District Judge
matter is before the Court on Defendants Cincinnati Insurance
Company and Builders Mutual Insurance Company's
(“Defendants”) motion to reconsider the
Court's September 28, 2018 Order granting Plaintiff
Stoneledge at Lake Keowee Owners Association, Inc.'s
(“Plaintiff”) motion for summary judgment and
denying Defendants' motions for summary judgment. (ECF
No. 121.) For the reasons set forth in this Order, the motion
to reconsider is denied.
factual background and procedural history of this case are
thoroughly set forth in the Court's prior Orders of March
13, 2018 and September 28, 2018 (ECF Nos. 119 & 121), and
the Court assumes familiarity therewith. On October 10, 2018,
the South Carolina Court of Appeals released opinions in two
pending appeals from the trial of the underlying case:
Stoneledge at Lake Keowee Owners' Ass'n, Inc., et
al. v. IMK Dev. Co. LLC, et al., Op. No. 5600 (S.C. Ct.
App. Oct. 10, 2018) (ECF No. 126-1 at 2-21) (Marick Home
Builders, LLC appeal); Stoneledge at Lake Keowee
Owners' Ass'n, Inc., et al. v. IMK Dev. Co., LLC, et
al., Op. No. 5601 (S.C. Ct. App. Oct. 10, 2018) (ECF No.
126-1 at 22-28) (Bostic Brothers Construction, Inc. appeal).
In their motion to reconsider, Defendants contend that these
appellate opinions reversed the trial court's reformation
of the underlying $5, 000, 000 verdict, that the Court of
Appeals' reinstatement of the initial verdict and related
application of set-off constitutes new evidence, and that in
light of this new evidence the Court should reconsider its
ruling denying Defendants' motions for summary judgment
on the breach of fiduciary duty claim. (See ECF No.
123 at 1-5.) Defendants further assert that the Court's
ruling constitutes legal error and would work a manifest
injustice against them in numerous ways. (See Id. at
filed their motion to reconsider on October 12, 2018. (ECF
No. 123.) Plaintiff filed its memorandum in opposition on
November 1, 2018. (ECF No. 126.) This matter is ripe for
consideration and the Court now issues the following ruling.
Fourth Circuit Court of Appeals recognizes three grounds upon
which a party may successfully move the Court to alter or
amend a judgment pursuant to Federal Rule of Civil Procedure
59(e): “(1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.” Pac. Ins. Co. v. Am.
Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)
(citation omitted). “[R]econsideration of a judgment
after its entry is an extraordinary remedy which should be
used sparingly.” § 2810.1 Grounds for Amendment or
Alteration of Judgment, 11 Fed. Prac. & Proc. Civ. §
2810.1 (3d ed.). “Rule 59(e) motions may not be used to
make arguments that could have been made before the judgment
was entered . . . .” Hill v. Braxton, 277 F.3d
701, 708 (4th Cir. 2002) (citation omitted).
“‘[M]ere disagreement does not support a Rule
59(e) motion.'” U.S. ex rel. Becker v.
Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th
Cir. 2002) (quoting Hutchinson v. Staton, 994 F.2d
1076, 1082 (4th Cir. 1993)).
Opinion No. 5600, the South Carolina Court of Appeals stated:
It appears the trial court amended the jury's verdict to
find that each cause of action independently supported a $5
million verdict. In doing so, the trial court invaded the
province of the jury. See Joiner v. Bevier, 155 S.C.
340, __, 152 S.E.2d 652, 657 (1930) (“It is [the
judiciary's] duty to enforce a verdict, not to make
it.”). Therefore, we find the jury's verdict, and
its allocation of damages to the three separate causes of
action should be reinstated.
The question then becomes how the court should allocate the
setoff Marick and Thoennes are entitled to based upon the
settlement the HOA received prior to trial. Thoennes'
fiduciary duty to the HOA was the result of his position on
the Board of the HOA. Based on the record, it does not
appear any Board members settled with the HOA prior to trial.
Therefore, none of the settlement proceeds should be set off
against Thoennes' liability for breach of fiduciary duty
because none of the settlement proceeds would have included
any amount for damages resulting from a breach of fiduciary
duty. Accordingly, Thoennes is responsible for the $1 million
award for breach of fiduciary duty, subject to any claims he
may have for contribution from any other defendants.
(ECF No. 126-1 at 20 (emphasis added).) The Court of Appeals
went on to reapply the set-off for recovery from other
settling defendants to the remaining $4, 000, 000 award for
negligence and breach of warranty. (Id. at 20-21.)
advancing their “new evidence” theory for
reconsideration, Defendants focus on the Court of
Appeals' statement that “Thoennes' fiduciary
duty to the HOA was the result of his position on the Board
of the HOA.” (See ECF No. 123-1 at 3.)
Defendants argue, “The Court of Appeals ruling
clarifies that the damages awarded for breach of fiduciary
duty are based upon different duties than the damages awarded
against the contractor defendants, ” and that,
“this Court now has the clarity it sought in denying
summary judgment on this ground.” (Id. at 4.)
Defendants further argue that because there is no ...