           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 26, 2009

                                       No. 08-11022                    Charles R. Fulbruge III
                                                                               Clerk

JEAN PIERRE

                                                   Plaintiff - Appellant
v.

POTOMAC INSURANCE COMPANY OF ILLINOIS

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC 4:03-CV-139-Y


Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       At issue is the summary judgment awarded Potomac Insurance Company
of Illinois (“Potomac”) against Jean Pierre’s insurance-based claims for damage
to a shopping center. AFFIRMED.
                                              I.
       Pierre’s shopping center in Arlington, Texas, is insured by Potomac. In
2000, a storm damaged the property’s exterior. The property also suffered



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-11022

damage from broken water pipes in 2001. Pierre filed this action in 2003, based
on these damages.
      Potomac moved to dismiss and for summary judgment. The motion to
dismiss was denied, but partial summary judgment was granted on the issue of
hail damage. Pierre v. Potomac Ins. Co. of Illinois, No. 4:03-CV-139-Y (N.D.
Tex. 28 Jan. 2004). The district court also ordered an appraisal of the claimed
mold and water damage, in accordance with the insurance policy. Id.
      Pierre, through new counsel, moved for reconsideration with respect to the
hail damage, asserting that his previous counsel had “mischaracterized” the
claim. Pierre’s motion was denied. Pierre v. Potomac Ins. Co. of Illinois, No.
4:03-CV-139-Y (N.D. Tex. 7 Feb. 2006).
      Following the conclusion of the appraisal, Pierre moved successfully to
reopen this action, and Potomac again moved for summary judgment. The
summary-judgment motion was denied.
      Subsequently, Potomac again moved for summary judgment, asserting, for
the first time, a fungus exclusion contained within the insurance policy. The
district court granted this motion, holding the exclusion was not barred by
waiver or estoppel. Pierre v. Potomac Ins. Co. of Illinois, 583 F. Supp. 2d 806,
810–811 (N.D. Tex. 2008).
                                       II.
      A summary judgment is reviewed de novo, applying the same standards
as the district court. E.g., Keelan v. Majesco Software, Inc., 407 F.3d 332, 338
(5th Cir. 2005). Summary judgment is proper when “there is no genuine issue
as to any material fact and . . . the movant is entitled to a judgment as a matter
of law”. F ED. R. C IV. P. 56(c); see also, Celotex Corp. v. Catrett, 477 U.S. 317,
322–33 (1986). A genuine issue of material fact exists “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party”.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

                                        2
                               No. 08-11022

     Based on our review of the record, and essentially for the reasons stated
by the district court, summary judgment was proper.
                                    III.
     For the forgoing reasons, the judgment is AFFIRMED.




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