Brooks v. Mtl of Omaha Ins ( 2021 )

Case: 20-20609 Document: 00515939328 Page: 1 Date Filed: 07/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 15, 2021
No. 20-20609
Summary Calendar Lyle W. Cayce
Clerk
Nicholas D. Brooks,
Plaintiff—Appellant,
versus
Mutual of Omaha Insurance Company,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-1271
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Nicholas Brooks appeals the district court’s grant
of summary judgment against him in his breach of contract claim. We
AFFIRM.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-20609 Document: 00515939328 Page: 2 Date Filed: 07/15/2021
No. 20-20609
I. Facts & Procedural History
Brooks was formerly a semi-truck driver. In 2012, he applied for long-
term disability insurance with Mutual of Omaha. He requested a ten-year
benefit period. However, because his occupation only allowed for a five-year
benefit period, Mutual of Omaha issued a policy with a five-year period.
Brooks’s signature appeared on a form authorizing this alteration to his
application.
In 2013, Brooks suffered an on-the-job injury and was unable to work.
He made a claim for benefits under his policy with Mutual of Omaha. He
received five years of benefits.
In 2019, Brooks sued Mutual of Omaha in Harris County, Texas for
breach of contract. Mutual of Omaha removed the case to federal court on
the basis of diversity jurisdiction. It then moved for summary judgment. The
district court held a hearing and granted the motion. Subsequently, Brooks
filed a motion for reconsideration, which was denied in another hearing.
Brooks now appeals the grant of summary judgment.
II. Discussion
We review the district court’s grant of summary judgment de novo.
Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 414 (5th Cir. 2021). “Our
inquiry is limited to the summary-judgment record, and new theories not
raised before the district court may not be advanced for the first time on
appeal.” Id. Summary judgment is proper “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).
“The elements of a breach of contract claim under Texas law are: ‘(1)
the existence of a valid contract; (2) performance or tendered performance
by the plaintiff; (3) breach of the contract by the defendant; and (4) damages
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sustained by the plaintiff as a result of the breach.’” Binh Hoa Le, 990 F.3d
at 415 (quoting Smith Int’l Inc. v. Egle Grp., LLC, 490 F.3d 380, 387 (5th Cir.
2007)). Mutual of Omaha argues that there was no breach of contract because
no contract for a ten-year benefit period existed. We agree.
“[A]s in the case of all contracts, the offer and acceptance in insurance
negotiations must be such as to evidence a complete agreement, or no
obligations arise.” Republic Nat. Life Ins. Co. v. Hall, 232 S.W.2d 697, 699
(Tex. 1950). Brooks indisputably applied for a ten-year benefits period.
However, Mutual of Omaha provided substantial evidence demonstrating
that it did not agree to the ten-year plan. First, Mutual of Omaha only issued
a policy with a five-year benefits period. Brooks was not eligible for the ten-
year benefits period due to his occupation per Mutual of Omaha’s policy.
Brooks signed a form entitled “Application Alteration Authorization” which
expressly stated “I authorize and approve the following alteration/alterations
of my application. 5 YEAR BENEFIT PERIOD.” Brooks claims that the
signature on the authorization was forged. However, Mutual of Omaha
provided a laboratory report in which a handwriting expert opined that the
questioned signatures were genuine. It also provided evidence that Brooks
was advised over the phone in 2013 that his benefit period was only five years.
Additionally, Mutual of Omaha sent letters to Brooks again stating that the
maximum benefit period was five years.
Brooks did not offer competent summary-judgment evidence to create
a genuine issue of material fact on whether a valid ten-year benefits period
contract existed. Brooks, as a pro se litigant, is entitled to leniency, but is
nevertheless required to submit competent evidence to avoid summary
judgment. See Davis v. Hernandez, 798 F.3d 290, 293 (5th Cir. 2015). In
response to Mutual of Omaha’s motion for summary judgment, Brooks filed
an affidavit claiming that he never agreed to change the benefit period to five
years, but does not state that he never signed the Application Alteration
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No. 20-20609
Authorization. Nor does he expressly state in the affidavit that the signature
was forged. He additionally does not object to the handwriting expert’s
assessment that his signature assenting to the five-year benefit period was
genuine.
Brooks also attached a 58-page telephone transcript of
communications with Mutual of Omaha’s customer service. Nowhere
therein do Mutual of Omaha representatives state that Mutual of Omaha
agreed to a ten-year benefits plan. Nor do the representatives admit to any
sort of fraud or forgery. The evidence provided by Brooks is insufficient for
a reasonable jury to find in his favor. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff.”). Without
competent evidence of an enforceable contract for a ten-year benefits period,
Brooks cannot demonstrate a breach of contract. The district court did not
err in granting summary judgment.
Brooks raises several new arguments in his appeal that he did not raise
before the district court. These include conspiracy, constitutional violations,
and contract defenses. However, “[a]n argument not raised before the
district court cannot be asserted for the first time on appeal.” HSBC Bank
USA, N.A. as Trustee for Merrill Lynch Mortg. Loan v. Crum, 907 F.3d 199,
207 (5th Cir. 2018). We therefore decline to consider these forfeited
arguments.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district
court.
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