     Case: 14-60474         Document: 00512988021          Page: 1     Date Filed: 03/31/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                         No. 14-60474                        United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
KMART CORPORATION,                                                             March 31, 2015
                                                                               Lyle W. Cayce
                 Plaintiff - Appellant                                              Clerk

v.

FULTON IMPROVEMENTS, L.L.C.,

                 Defendant - Appellee




                      Appeal from the United States District Court
                        for the Northern District of Mississippi
                                USDC No. 1:11-CV-103


Before DAVIS and CLEMENT, Circuit Judges, and ROSENTHAL, District
Judge.*
PER CURIAM:**
       The Kmart store in Corinth, Mississippi sustained substantial flood
damage in 2010. Kmart Corporation (“Kmart”) brought this suit against the
store’s landlord, Fulton Improvements, L.L.C. (“Fulton”), in federal district




       *   District Judge of the Southern District of Texas, sitting by designation.
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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court on the basis of diversity jurisdiction. The district court granted Fulton’s
motion for summary judgment, and we AFFIRM.
                             FACTS AND PROCEEDINGS
      During the night of May 1 through the morning of May 2, 2010, Corinth,
Mississippi experienced heavy rainfall. Kmart’s expert witness stated that the
quantity of rainfall “may have approached the 100 year rainfall amount.” By
the morning of May 2, water had built up along the rear doors of the Kmart
store. According to Kmart’s expert witness, “[e]ventually, landscape timbers
stored on site struck the doors with enough force to break open the doors, lodge
in the opening, and allow water to flood into the store. The quantity of water
overwhelmed the staff’s ability to control it.” The depth of water in the Kmart
store’s parking lot was 22 inches, and the flooding inside the building was
likely similar. The flooding caused damage to both the Kmart store and its
merchandise.
      Fulton is the landlord of the Kmart store. The lease between Fulton and
Kmart provides that Fulton is responsible for “all maintenance, replacement
and repair to the roof, outer walls and structural portion of the buildings which
shall be necessary to maintain the buildings in a safe, dry and tenantable
condition and in good order and repair.”
      Based on the 2010 flood damage, Kmart sued Fulton in federal district
court on the basis of diversity jurisdiction. Kmart raised two claims against
Fulton, but only one is at issue on appeal: Kmart’s claim that Fulton breached
the lease agreement, specifically the provision requiring Fulton to maintain
the Kmart store in “a safe, dry and tenantable condition.”
      Fulton filed a motion for summary judgment, arguing that Kmart could
not prove that the store flooded due to improper maintenance, given that there
was no evidence that improper maintenance caused the landscaping timbers
to break through the store’s doors.      In response, Kmart argued that the
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                                 No. 14-60474
question of whether improper maintenance caused the flood damage was a
question of fact, given that Kmart’s corporate representative allegedly testified
that flood protection measures could have prevented the timbers from
breaching the door.
      The district court granted Fulton’s motion for summary judgment. It
held that Kmart failed to raise a genuine dispute of material fact that Fulton’s
failure to install flood protection measures caused the flood damage. First, the
court noted that only Kmart’s corporate representative testified about whether
flood protection measures could have prevented the flood damage. The court
held that the representative’s testimony on this matter was likely inadmissible
because he was not an expert and “only an expert witness could testify about
whether flood-protection measures would have prevented flood damage.”
Further, the court held that, even if the representative’s testimony was
admissible, “it would be insufficient to raise a fact issue.” Thus, the district
court granted Fulton’s motion for summary judgment as to the breach of
contract claim.
      Kmart filed a motion to amend or alter the judgment under Federal Rule
of Civil Procedure 59, which the district court denied. Kmart now appeals the
dismissal of its breach of contract claim against Fulton.
                            STANDARD OF REVIEW
      “We review a grant of summary judgment de novo, applying the same
standard as the district court and viewing the evidence in the light most
favorable to the non-moving party.” Am. Family Life Assur. Co. of Columbus
v. Biles, 714 F.3d 887, 895 (5th Cir. 2013).     Summary judgment shall be
granted “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).


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                                     No. 14-60474
      “We generally review a decision on a motion to alter or amend judgment
under Rule 59(e) for abuse of discretion.” Miller v. BAC Home Loans Servicing,
L.P., 726 F.3d 717, 721–22 (5th Cir. 2013) (internal quotation marks omitted).
“To the extent that a ruling was a reconsideration of a question of law, however,
the standard of review is de novo.” Id. (internal quotation marks omitted).
                                         DISCUSSION
      The district court correctly held that Kmart failed to present a genuine
issue of fact that additional flood protection measures would have prevented
this particular flood damage. Thus, Kmart did not raise a fact issue that
Fulton’s alleged breach of the lease caused Kmart’s damages, so Kmart’s
breach of contract claim fails.
      In Mississippi, monetary damages are not an element of a breach of
contract action. Bus. Commc’ns, Inc. v. Banks, 90 So. 3d 1221, 1225 (Miss.
2012) (en banc). Instead, monetary damages are merely a remedy for breach
of contract. Id. The only elements for a breach of contract claim are “1. The
existence of a valid and binding contract; and 2. That the defendant has
broken, or breached it.”       Id. at 1224.     But here, Kmart is pursuing only
monetary damages, not nominal damages, specific performance, reformation,
or any other remedy. Thus, Kmart’s breach of contract claim fails if it cannot
show that Fulton caused the flooding that resulted in monetary damages. See
id. at 1226 (holding that claim for compensatory damages requires proof that
damages were caused by breach of contract). 1
      Here, Kmart has failed to present evidence that Fulton’s alleged breach
of contract (i.e., its failure to install flood protection measures) caused the flood


      1  We note that the parties take it for granted that Kmart must prove causation.
Moreover, Kmart has not requested remand of this case for consideration of nominal damages
or equitable relief.



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damage. The only causation evidence presented by Kmart was deposition
testimony from its corporate representative.          The Kmart representative
testified that, if he were “to put [himself] in the shoes of a landlord that had a
lease that required [him] as the landlord to maintain a safe, dry, and tenable
condition,” he would have “hired experts” and considered his options about
flood protection measures. Given that drainage in the area is poor, he testified
that he would consider sandbagging, but noted that there is not always time
to deploy sandbags.      He further testified that “you can boot a building,
hermetically seal the exterior of the building to height of four foot, two foot, six
foot, or whatever is required, and caulk and seal the perimeter.” If such a
“boot” had been installed around the building, the Kmart store’s personnel
would only have to close the boot’s floodgates as flooding conditions arrived.
The Kmart representative testified that he “would have explored how much it
costs to install—manufacture and install those” floodgates. In response to a
question about whether he had testified that sandbags could not be used
because the “water came so fast,” he testified that “I think I did say that the
sandbags may not have been an option. But the flood doors or floodgates that
were an extension of the outer wall, those are pretty solid. Those are steel, and
they lock in place.”
      Critically, though, the representative did not testify that floodgates
would have prevented or even mitigated this flood damage by stopping the
landscaping timbers. He did not even testify that he would have definitely
installed floodgates if he had been in Fulton’s position.
      Generously reading the deposition, perhaps we could infer that
floodgates would generally prevent a store with poor drainage from flooding,
although the Kmart representative did not directly testify to this effect. But,
in this particular case, Kmart admits that the flooding was caused by a
seemingly atypical situation—landscaping timbers breaking open the Kmart
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                                     No. 14-60474
store’s doors and lodging in them. That is, Kmart’s appellate brief provides
that, “[e]ventually, landscape timbers stored on-site struck the doors with
enough force to break open the doors and lodge in the opening, allowing water
to flood into the store and overwhelming the Kmart store’s staff’s ability to
control it.” Again, the Kmart representative did not clearly articulate an
opinion that floodgates, even “pretty solid” steel floodgates, could have stopped
the landscaping timbers from causing flooding. Due to the lack of any evidence
that floodgates could have prevented the timbers from breaching the doors (or
at least that floodgates could have reduced the damage caused by the
subsequent flooding), Kmart did not present a genuine fact issue that Fulton’s
failure to install floodgates caused Kmart’s monetary damages.
      Again, because Kmart only requests monetary damages without
pressing any claims for nominal damages or equitable relief, its failure to
present any evidence that the alleged breach caused monetary damages is fatal
to Kmart’s breach of contract claim. Thus, it is unnecessary to reach Kmart’s
other arguments on appeal. 2
                                        CONCLUSION
      The judgment of the district court is AFFIRMED.




      2 For example, we need not reach the issue of whether the lay opinion testimony from
Kmart’s corporate representative was admissible.
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