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Diversified Marine Services, Inc. v. Jewel Marine, Inc.

Court of Appeals of Louisiana, First Circuit

June 2, 2017


         Appealed from the Seventeenth Judicial District Court In and for the Parish of Lafourche State of Louisiana Suit Number 127447 Honorable John E. LeBlanc, Presiding

          Michael L. Vincenzo Henry A. King Carolyn S. Buckley New Orleans, LA Counsel for Plaintiff/ Appellant Diversified Marine Services, Inc.

          Robert S. Reich Michael T. Wawrzycki Metairie, LA Counsel for Defendant/ Appellee Jewel Marine, Inc.


          GUIDRY, J.

         In this action seeking enforcement of an alleged oral contract, plaintiff/appellant, Diversified Marine Services, LLC (Diversified), appeals from a trial court judgment granting summary judgment in favor of defendant/appellee, Jewel Marine, Inc. (Jewel), and dismissing Diversified's claims with prejudice. For the reasons that follow, we affirm.


         Jewel owned a vessel, the M/V Diamond Edge, which had been damaged in a collision and taken to Superior Shipyard for repairs. Thereafter, Jewel's insurer instructed it to solicit bids from third parties to determine the vessel's value. On April 9, 2015, Robert Boudreaux, Jr., a member of Diversified, met with Treva Crosby of Jewel at Superior Shipyard to inspect the vessel. That same afternoon, Diversified, through Boudreaux, made an offer to Robbie Crosby (Crosby), the President of Jewel, to purchase the vessel for $150, 000. At that time, Crosby stated that he would take the offer under consideration. Negotiations continued between Diversified and Jewel, which included discussions regarding preparation of a United States Coast Guard bill of sale, abstract of title, and purchase agreement. However, none of these documents were ever provided to Diversified, because on May 6, 2015, Jewel notified Boudreaux that it was selling the vessel to a third party who had offered a higher amount.

         Thereafter, on May 21, 2015, Diversified filed a petition for damages, naming Jewel as a defendant and asserting that during a conversation on May 1, 2015, Crosby told Boudreaux that he accepted Diversified's offer of $150, 000 to purchase the vessel. Diversified further alleged that Crosby thereafter notified Boudreaux on May 6, 2015, that someone else had made a higher offer to buy the vessel, and that he was going to accept the other offer. Accordingly, Diversified contended that it had an oral contract to sell the vessel, which Jewel breached. Diversified sought specific performance of the contract of sale, or in the alternative, damages to compensate it for its loss of the benefit of the bargain it had sustained. Alternatively, Diversified asserted that Jewel was liable to it for damages under the theory of detrimental reliance.

         After filing exceptions and an answer, Jewel filed a motion for summary judgment on October 23, 2015, asserting that the undisputed facts establish that there was no contract for the sale of the M/V Diamond Edge and, alternatively, even if there was a contract, it is unenforceable. Particularly, Jewel asserted that Diversified had not produced corroborating evidence of an oral contract for the sale of the vessel and that if a contract was confected, it was unenforceable because Diversified cannot satisfy the statute of frauds. Additionally, Jewel asserted that Diversified cannot establish detrimental reliance because it cannot show: a sale was perfected such that a representation of completed sale existed; any basis for why its reliance was justified; and a change in its position because of that reliance.

         After granting two continuances to allow the parties time to conduct additional discovery, the trial court held a hearing on Jewel's motion on February 26, 2016. At the conclusion of the hearing, the trial court found Diversified failed to present corroborating evidence of an oral contract and further failed to produce any evidence that it changed its position in reliance upon negotiations with Jewel. As such, the trial court signed a judgment granting Jewel's motion for summary judgment and dismissing Diversified's suit with prejudice. Diversified now appeals from the trial court's judgment, [1]


         Following the lodging of the appeal by Diversified with this court, Jewel filed a motion to dismiss the appeal and enforce settlement, asserting that the parties had entered into an agreement to dismiss the appeal in exchange for each party bearing its own costs. Particularly, Jewel asserted that on April 25, 2016, counsel for Diversified sent an email to counsel for Jewel stating: "My client has authorized [me] to dismiss our appeal under the condition that each side bear its own costs. Please let me know if [y]our client is agreeable to this proposal." Thereafter, on April 29, 2016, at 3:04 pm, counsel for Jewel replied to the email, simply stating "agreed." As such, Jewel contends that this agreement constitutes an enforceable compromise and, as such, Diversified's appeal should be dismissed.

         A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. La. C.C. art. 3071. There are two essential elements of a compromise: (1) mutual intention of preventing or putting an end to the litigation and (2) reciprocal concessions of the parties to adjust their differences." Trahan v. Coca Cola Bottling Company United, Inc., 04-0100, p. 10 (La. 3/2/05), 894 So.2d 1096, 1104. A ...

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