Park Meadows Reconsideration Case Study

In the case at hand, Park Meadows argues they have new evidence sufficient to justify reconsideration of the partial grant of summary judgment for Dillard’s. Park Meadows also contends that, in light of this new evidence, reconsideration is warranted to prevent manifest injustice. The evidence Park Meadows claims is new and justifies reconsideration is an email exchange in March – May of 2013 between Park Meadows and Dillard’s store manager and an accompanying affidavit done March 15, 2018 regarding the planter boxes outside of Dillard’s. Park Meadows contends that the email was not previously available until Jeff Koch provided it to counsel after the order on February 20, 2018. Park Meadows further contends that they were not aware of the

email exchange due to the parties in the email not being listed as potential witnesses and the focus for summary judgment “was on snow and ice removal and not on other evidence showing other types of maintenance of the area where the Plaintiff fell.” (ECF No. 68 at 5).
In my Order on Summary Judgement, I noted that according to the Construction, Operation, and Reciprocal Easement Agreement (“COREA”) the “Common Area,” area for which Park Meadows is responsible for, included the “Perimeter Sidewalk,” and that it was undisputed that the plaintiff fell “between the exterior Building faces and exterior curb faces,” which is, according to the contract definition, a “Perimeter Sidewalk.” Park Meadows provided no evidence to support their contention that the plaintiff fell within the “Building” area.
Park Meadows now makes the same argument – that the plaintiff fell in an area that was to be maintained by Dillard’s and therefore, Park Meadows was not responsible for snow and ice removal.

The email Park Meadows relies on states, “going forward, it is going to be [Park Meadows’] position that we will be maintaining sidewalks where obligated, but not the area between the sidewalks and your door unless it is spelled out in the lease.” (Ex. A at 5). From this statement park Meadows has concluded that since no subsequent change was made to the COREA, “Park Meadows and Dillard’s agreed that Park Meadows would not provide maintenance, including snow removal between Dillard’s entrance and the sidewalk.” (ECF No. 66 at 7-8). Dillard’s notes in response that the “new evidence” was readily available to Park Meadows prior to the summary judgment order and “just because Park Meadows ‘recently received’ this ‘new evidence,’ does not mean the evidence was unavailable.” (ECF No. 66 at 4). Dillard’s notes that the email exchange “does not impact the COREA obligations regarding snow removal, nor does it impact this Court’s prior analysis on Park Meadows’ snow removal obligations pursuant to the COREA.” (ECF No. 67 at 5). Dillard’s is correct that both the email exchange is not new evidence and was readily available to Park Meadows prior to the summary judgment order, and the email exchange does not change the obligations of Park Meadows under the

COREA.
Regarding the first issue of the email exchange being new evidence, Park Meadows’ counsel was made aware of a maintenance dispute regarding planter boxes on two separate occasions prior to summary judgment. The first instance is the deposition of Roger Casto done March 31, 2017. Casto specifically mentions the situation of the planter boxes being damaged by snow removal equipment, which Park Meadows contends is the event that brought about the email exchange. Park Meadows’ manager Pam Kelly testified about this same event involving planter boxes being damaged by snow removal equipment prior to the order on February 20, 2018. This should have put Park Meadows on notice at the very least that there was a dispute over who had to maintain the area outside the doors of Dillard’s and should have then opened their focus to beyond snow removal.
With respect to the second point – the email exchange does not affect the obligations of Park Meadows under the COREA, there is no doubt that Park Meadows was obligated to maintain the area where the plaintiff fell even in light of this email. The email specifically states that “[Park Meadows] will be maintaining sidewalks where obligated.” (Ex. A at 5). I found that the area where the plaintiff could have fallen was an area, under the COREA, Park Meadows was obligated to maintain. Here, Park Meadows has not provided evidence or support that the definitions in the COREA were changed due to this email exchange and even argue that no subsequent changes were made to the COREA after the email exchange. Park Meadows has not presented any new evidence or arguments that could not have been made prior to the Order of Summary Judgment on February 20, 2018 and they appear to be trying to get a “second bit at the apple.” Mantle Ranches, Inc. v. U.S. Park Serv., 950 F. Supp. 299, 300 (D. Colo. 1997) ("'a motion for reconsideration is not a license for a [party] to get a 'second bite at the apple'" and make legal arguments that could have been raised before"). Moreover, Park Meadows has not shown any manifest error of law or that the email exchange was previous unavailable despite a diligent attempt. Accordingly, the motion for reconsideration is denied.