DAVID FOLSOM, District Judge
Before the Court is Defendant's Motion for Reconsideration of the Court's May 25, 2004 Order on Late Notice. (Doc. No. 73). Counsel for Scott and Johnece Tellez (hereinafter, "Plaintiff" or "Plaintiffs") has not responded to Defendant's motion. Defendant's motion is not well taken and is therefore DENIED.
I. PROCEDURAL BACKGROUND
The instant motion for reconsideration seeks reconsideration of the Court's order on a previous motion for reconsideration. The procedural history of this case is somewhat intricate, so the Court will review in detail.
This case is currently set for pre-trial conference on Tuesday, September 7, 2004 with jury selection the following day. On May 12, 2003, Defendant moved for summary judgment on the basis of prompt notice. (Doc. No. 28). On June 17, 2003, Defendant filed a Reply Brief. This Reply advanced the new argument that Plaintiff's damage fell outside the policy period. (Doc. No. 35, p. 1). On June 26, 2003, Plaintiff filed an Objection to Defendant's Motion for Summary Judgment on the basis of requested additional discovery. (Doc. No. 39). It is of crucial importance to note that Plaintiff did not move to strike Defendant's newly raised Reply argument.
On January 28, 2004, the Court entered an Order granting Defendant's Motion for Summary Judgment on Plaintiff's DTPA claims as well as the Plaintiff's remaining claims on the basis of prompt notice. (Doc. No. 59). Defendant's Motion for Summary Judgment Based on Mold Exclusion was denied as moot. Central to the portion of the Order devoted to prompt notice was the fact that the mold damage to Plaintiff's home did not occur during the coverage period ending on July 16, 2001. Id. p. 10. ("Plaintiff has offered no evidence that the policy was renewed or in any other way extended past the coverage date of July 16, 2001.").
Plaintiff promptly filed a motion to reconsider. (Doc. No. 60). The Court issued its order on May 25, 2004 (Doc. No. 72). Upon reconsideration, the Court reaffirmed its order dismissing Plaintiff's DTPA claims. However, the Court held that the affidavit of Ms. McGowan raised a fact issue concerning coverage which Defendant concealed. Accordingly, the order was reconsidered concerning Prompt Notice; Defendant's motion for summary judgment on Prompt Notice was denied. Defendant's motion concerning Mold Exclusion had previously been dismissed as moot. Upon fresh examination (in light of the decision to deny the motion as to Prompt Notice) Defendant's arguments concerning Mold Exclusion were found to be unpersuasive. Accordingly, the motion was denied.
On May 25, 2004, Defendant filed a Motion to Reconsider the previous Order concerning Late Notice. (Doc. No. 73). The title of this motion is somewhat misleading. Prompt Notice is Defendant's most incisive argument. It is for this reason that in the original order on the motion for summary judgment, the Mold Exclusion claim was rendered moot by the court's holding that the Prompt Notice argument succeeded. By moving for reconsideration on Prompt Notice, Defendant implicitly moves to reconsider the Mold Exclusion argument. The bottom line is that if Defendant's Prompt Notice arguments are availing, Plaintiff's lawsuit ineluctably fails.
II. DEFENDANT'S FIRST ARGUMENT FAILS BECAUSE IT WAS UNTIMELY RAISED
Defendant asserts that the unverified statement of Ms. McGowan is improper summary judgment evidence. The Court does not need to make such a determination. Plaintiff filed its motion for reconsideration (to which the McGowan declaration was attached) on January 30, 2004. (Doc. No. 60). Defendant responded on February 5, 2004. (Doc. No. 62). The response is devoid of any attack on the admissibility of the McGowan declaration. Defendant did not raise this argument until its June 1 motion to reconsider. (Doc. No. 73).
It is a basic tenet of civil procedure that if a party does not object to inadmissible summary judgment proof, the party waives the error. See, e.g., Akin v. Q-L Invest., Inc., 959 F.2d 521, 531 (5th Cir. 1992) ("On a motion for summary judgment, the district court should disregard only those portions of an affidavit that are inadequate and consider the rest.") (citing Lee v. National Life Assurance Co., 632 F.2d 524, 529 (5th Cir. 1980)). See also Jones v. Owens-Corning Fiberglas Corp., 69 F.3d 712, 718 (4th Cir. 1995) ("To the extent that these arguments may be seen as challenging the admissibility of these affidavits, we believe that OCF's failure to move to strike them below constitutes a waiver of these arguments."); Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 682 (1st Cir. 1994) ("Unless a party moves to strike an affidavit under Rule 56(e), any objections are deemed waived and a court may consider the affidavit").
Defendant waived its objection to Ms. McGowan's declaration. This fact is the basis of the first of three (3) reasons Defendant's motion to reconsider the Court's May 25 order on late notice will be denied. The second reason is discussed immediately below.
III. DEFENDANT'S SECOND ARGUMENT FAILS BECAUSE "NEWLY DISCOVERED EVIDENCE" WAS NOT A GROUND UPON WHICH THE COURT'S PREVIOUS ORDER RESTED
A. Rule 60 (b)
The text of Rule 60(b) reads as follows:
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc.
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or
proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
B. The May 25 Order Did Not Rest It Holding on "Newly Discovered Evidence"
In the order setting this matter for the April 28 hearing, the Court indicated that Plaintiff's counsel should be prepared to explain why the McGowan declaration should be admitted in light of Defendant's "newly discovered evidence" arguments. (Doc. No. 67). However, the Court's May 25 order did not rests its holding on this ground. To the contrary, Part B. 2 was entitled "Defendant's Misstatement Constitutes Both A Misrepresentation and Other Misconduct." (Doc. No. 72, p. 5). For this reason, Defendant's "newly discovered evidence" argument is entirely misplaced. The Court now turns to the third and final reason the instant motion will be denied.
IV: DEFENDANT'S THIRD ARGUMENT FAILS BECAUSE THE POINT AT WHICH THE MOLD EVIDENCED ITSELF IS AN ISSUE OF FACT
The crux of Defendant's third argument is that Plaintiffs belated filing of their insurance claim works an estoppel effect. Plaintiff filed its claim on June 17, 2002. Defendant directs the Court to deposition testimony in which Scott Tellez explained that a "black substance" manifested itself more than one year earlier. ("[S]ummary judgment is still proper because the undisputed evidence clearly establishes the Plaintiffs observed black substance growing on their walls " in the early party of 2000." (Doc. No. 73, p. 7) (emphasis in original).
However, Plaintiff directs the Court to deposition testimony by Scott Tellez that he did not learn of the mold damage until early 2002. (Doc. No. 31, p. 2).
Plaintiff Scott Tellez's supports this assertion. For example
Q: Okay. When did you first notice this damage?
A: We started noticing the black, what now apparently is mold formation. I want to say in January or February of this year . . .
(Scott Tellez Depo., p. 9).
Defendant has demonstrated that the deposition testimony arguably contains inconsistencies. This goes to weight and admissibility. The Court cannot conclude that Plaintiff's claim fails on a motion for summary judgment.
V. CONCLUSION
Defendant's Motion for Reconsideration of the Court's May 25, 2004 Order on Late Notice (Doc. No. 73) is DENIED. This case will proceed to pre-trial conference on Tuesday, September 7, 2004 with jury selection the following day.