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Blessey Marine Services, Inc. v. Jeffboat, L.L.C.

United States Court of Appeals, Fifth Circuit

November 10, 2014

BLESSEY MARINE SERVICES, INCORPORATED, Plaintiff - Appellant
v.
JEFFBOAT, L.L.C., Defendant - Appellee

Appeals from the United States District Court for the Eastern District of Louisiana.

For BLESSEY MARINE SERVICES, INCORPORATED, Plaintiff - Appellant: Steven Franklin Griffith, Jr., Benjamin West Janke, James H. Roussel, Esq., Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., New Orleans, LA.

For JEFFBOAT, L.L.C., Defendant - Appellee: Donald Joseph Kelly, Wyatt, Tarrant & Combs, L.L.P., Louisville, KY; Glenn G. Goodier, Jones Walker LLP, New Orleans, LA.

Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.

OPINION

Page 895

WIENER, Circuit Judge:

A district court jury granted the breach of warranty claim of Plaintiff-Appellant Blessey Marine Services, Inc. (" Blessey" ), but denied its breach of contract claim. Blessey now appeals the district court's denial of two motions: one for partial summary judgment and the other in limine. Blessey's primary claim on appeal is that the district court should have entered judgment as a matter of law against Defendant-Appellee Jeffboat, L.L.C. (" Jeffboat" ), once the court found the disputed portion of the contract ambiguous. Blessey also urges that the district court erred by admitting parol and extrinsic evidence. We do not reach the merits of either contention because we conclude that (1) we lack jurisdiction to review the district court's denial of Blessey's motion for partial summary judgment, and (2) Blessey waived its right to challenge the district court's admission of extrinsic evidence.

I.

FACTS AND PROCEEDINGS

A. Background

Over the course of their twenty-year business relationship, Jeffboat, an inland

Page 896

boat and barge builder located in Indiana, sold more than fifty barges to Blessey, a provider of transport services for goods through inland waterways. In April 2009, Blessey and Jeffboat entered into a contract in which Jeffboat agreed to build a barge for Blessey at a base unit price of $3,325,000 (" Original Contract" ). This price was calculated on the assumption that Jeffboat would procure the steel to build the barge at an average cost of $800 per ton, but the price of the barge was subject to some adjustments. Significant to this case, Article III of the Original Contract specified that the adjusted unit price would depend on the " actual average cost per ton . . . for all steel plate and structural steel used in the construction of the barge to be escalated/de-escalated," but in no event would the cost per ton exceed $800 for purposes of calculating the ultimate price.

Jeffboat and Blessey subsequently negotiated for additional barges. In July 2009, they executed a " First Amendment" to the Original Contract, ...


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