Filed: Feb. 22, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 21, 2007 Charles R. Fulbruge III Clerk No. 06-20529 Summary Calendar HAMED SANGI; STACEY SANGI Plaintiffs - Appellants v. FAIRBANKS CAPITAL CORP Defendant - Appellee Appeal from the United States District Court for the Southern District of Texas, Houston USDC No. 4:04-CV-4441 Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges. PER CURIAM:* Plaintiffs-appellants Hamed and
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 21, 2007 Charles R. Fulbruge III Clerk No. 06-20529 Summary Calendar HAMED SANGI; STACEY SANGI Plaintiffs - Appellants v. FAIRBANKS CAPITAL CORP Defendant - Appellee Appeal from the United States District Court for the Southern District of Texas, Houston USDC No. 4:04-CV-4441 Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges. PER CURIAM:* Plaintiffs-appellants Hamed and S..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 21, 2007
Charles R. Fulbruge III
Clerk
No. 06-20529
Summary Calendar
HAMED SANGI; STACEY SANGI
Plaintiffs - Appellants
v.
FAIRBANKS CAPITAL CORP
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:04-CV-4441
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Plaintiffs-appellants Hamed and Stacey Sangi appeal the
district court’s judgment, arguing that the district court erred
by (1) granting defendant-appellee Fairbanks Capital
Corporation’s motion for summary judgment and (2) denying the
Sangis’ motion to set aside judgment and/or motion for new trial
and request for relief from judgment. We AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs-appellants Hamed and Stacey Sangi purchased a
home from defendant-appellant Fairbanks Capital Corp. (“FCC”).
The Sangis allege that three years later they discovered toxic
mold in the residence and that the resulting health problems
forced them to vacate the property. The Sangis filed suit
against FCC, claiming breach of contract, fraud, and violations
of the Texas Deceptive Trade Practices-Consumer Protection Act
(“DTPA”) and alleging that FCC knowingly and intentionally failed
to disclosed that the residence had unsafe levels of toxic mold
and misrepresented that there were no defects.
The Sangis conducted no discovery other than initial
disclosures and did not respond to FCC’s discovery requests. The
Sangis attempt to justify their failure to pursue discovery by
stating that they believed liability was not contested and that
discovery was on hold until after the parties mediated damages.
FCC filed a no-evidence motion for summary judgment arguing
that all claims were barred by the “as-is” clause in the sales
contract, except to the extent Texas law permitted the Sangis to
recover if they could show that FCC had “actual knowledge” that
the property contained toxic mold and took affirmative steps to
conceal it.1 FCC asserted that the Sangis had no evidence that
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Provisions within the contract gave the Sangis the right
to inspect the property before closing and to terminate the
contract within seven days for any reason. If the Sangis did not
terminate the contract, they were deemed to have accepted the
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FCC had actual knowledge of the evidence of toxic mold at the
time of the sale.
The Sangis did not respond to FCC’s motion, and pursuant to
the Local Rules for Southern District of Texas, the motion was
submitted to the judge twenty days from filing. S. DIST. LOCAL R.
7.3. Although the parties discussed the possibility of an
extension to the response date, the Sangis never filed a motion
for extension of time, a response to the motion, or a notice
stating their opposition to summary judgment.
The district court granted FCC’s summary judgment motion
noting that the Sangis had no competent summary judgment evidence
before the court and had not raised a genuine issue of material
fact in support of any of the essential elements of their claims.
The Sangis then filed a motion to set aside and/or motion
for new trial and motion for relief from judgment. The district
court denied those motions stating the Sangis did not establish a
good reason to grant a new trial and that Rule 60(b) did not
apply to relieve the Sangis from the final judgment.
II. SUMMARY JUDGMENT
We review a district court’s grant of summary judgment de
novo, using the same standards applied by the district court.
Riverwood Int’l Corp. v. Employers Ins. of Wausau, 420 F.3d 378,
property in its current condition. In bolded font, underlined,
and in all caps, an addendum to the contract stated that the
property was purchased “AS-IS WHERE-IS AND WITH ALL FAULTS.”
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382 (5th Cir. 2005). Summary judgment is proper when, viewing
the evidence in the light most favorable to the nonmovant, “there
is no genuine issue of any material fact” and the moving party is
“entitled to judgment as a matter of law.” Brooks, Tarlton,
Gilbert, Douglas & Kressler v. United States, 832 F.2d 1358, 1364
(5th Cir. 1987); FED. R. CIV. P. 56(c).
Once the moving party establishes that there is no genuine
issue, the burden shifts to the nonmoving party to produce
evidence of the existence of a genuine issue for trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party
cannot rely only upon allegations, denials in a pleading, or
unsubstantiated assertions that a fact issue exists, but must
“set forth specific facts showing the existence of a ‘genuine’
issue concerning every essential component of its case.” Morris
v. Covan World Wide Moving, Inc.,
144 F.3d 377, 380 (5th Cir.
1998). The district court may not grant a motion for summary
judgment simply because it is unopposed. Hetzel v. Bethlehem
Steel Corp.,
50 F.3d 360, 362 n.3 (5th Cir. 1995).
The Sangis argue that the district court abused its
discretion by not applying the analysis in Johnson v. Pettiford,
442 F.3d 917 (5th Cir. 2006). In Johnson, we held the district
court abused its discretion by dismissing the pro se litigant’s
petition as moot because he did not oppose respondent’s motion to
dismiss. 442 F.3d at 918-19. This case differs from Johnson
because the district court did not grant summary judgment merely
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because the motion was unopposed. Rather, although it
acknowledged that the motion was unopposed, it granted summary
judgment on the basis that the Sangis had not established a fact
issue on an essential element of their case. Thus, the district
court properly granted summary judgment.
III. RULE 60(b) MOTION FOR RELIEF FROM JUDGMENT
We review a district court’s grant or denial of a Rule 60(b)
motion for relief from judgment for abuse of discretion. Edwards
v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en banc).
“Under this standard, the court’s decision need only be
reasonable.” See Edward H. Bohlin Co. v. Banning Co.,
6 F.3d
350, 353 (5th Cir. 1993). The Sangis argue that relief should be
granted under Rule 60(b)(1) for excusable neglect resulting from
counsel miscommunication, misunderstanding regarding FCC’s
intentions regarding discovery and the motion for summary
judgment, and misunderstanding of the local rules involving
summary judgment procedure. But the district court did not abuse
its discretion in denying their Rule 60(b) motion. See Edward H.
Bohlin
Co., 6 F.3d at 357 (“Gross carelessness, ignorance of the
rules, or ignorance of the law are insufficient bases for
60(b)(1) relief.”).
The Sangis also contend that the district court should have
granted the motion to reconsider based on newly discovered
evidence. Rule 60(b)(2) permits relief for evidence “which by
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due diligence could not have been discovered in time to move for
a new trial under Rule 59(b)”). The district court did not abuse
its discretion in denying Rule 60(b)(2) relief because the record
indicates that the Sangis did not pursue discovery with due
diligence.2 See New Hampshire Ins. Co. v. Martech USA, Inc., 993
F.2d 1195, 1201 (5th Cir. 1993) (holding a movant must
demonstrate that it exercised due diligence in obtaining the
information to succeed on a motion brought under 60(b)(2)).
Moreover, the Sangis have failed to show that the district
court abused its discretion in denying their Rule 60(b)(3) motion
for relief from judgment. See Hesling v. CSX Transp., Inc., 396
F.3d 632, 638 (5th Cir. 2005). The Sangis did not provide the
district court with clear and convincing evidence that FCC
engaged in fraud or other misconduct or that any misconduct
prevented them from fully and fairly presenting their case. See
Gov’t Fin. Servs. v. Peyton Place, Inc.,
62 F.3d 767, 772 (5th
Cir. 1995). Rather the Sangis offered only allegations of fraud
and misconduct. Nor have the Sangis shown exceptional
circumstances to merit relief under Rule 60(b)(6). See Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,
507 U.S. 380,
393 (1993) (holding that Rule 60(b)(6) only applies in
2
The Sangis also appeal the denial of their motion for new
trial on the basis of newly discovered evidence, but their
failure to pursue discovery with due diligence prevents them from
prevailing on this claim as well. See Nat’l Labor Relations Bd.
v. Jacob E. Decker and Sons, 569 F.2d 357, 363-64 (5th Cir.
1978).
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“extraordinary circumstances suggesting that the party is
faultless in the delay.”).
IV. CONCLUSION
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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