MacRo Companies, Inc. v. Dearybury Oil & Gas, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-254

MACRO COMPANIES, INC.

VERSUS

DEARYBURY OIL & GAS, INC., ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20184283
HONORABLE JULES D. EDWARDS III, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie,
Judges.

REVERSED AND REMANDED.

Thomas J. Bernard
David C. Eppling
Staines, Eppling & Kenney
3500 N. Causeway, Suite 820
Metairie, LA 70002
(504) 838-0019
COUNSEL FOR DEFENDANTS-APPELLEES
Florida Marine Transporters, LLC

Robert D. Felder
Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, LLP
810 S. Buchanan Street
Lafayette, LA 70501
(337) 237-1660
COUNSEL FOR PLAINTIFF/APPELLANT
Macro Companies, Inc.

PICKETT, Judge.

The plaintiff filed suit asserting claims for breach of contract and detrimental

reliance against three defendants to recover a commission it claims to be owed.

One of the defendants asserted a claim for detrimental reliance against the plaintiff,

which the trial court dismissed pursuant to plaintiff’s motion for summary

judgment. The defendant appeals that judgment.

FACTS

On September 20, 2017, Hurricane Maria made landfall on Puerto Rico.

The storm left the area in desperate need of fuel for emergency services. The

Federal Emergency Management Agency (FEMA) contacted Macro Companies,

Inc. (Macro), to supply five million gallons of fuel. Pursuant to FEMA’s need,

Macro sought to purchase fuel, sell it to FEMA, and arrange for its transportation

to Puerto Rico. In an effort to provide the fuel services, Macro contacted Kenneth

R. Pullen at Florida Marine Transporters, LLC (FMT) for assistance in purchasing

and transporting the fuel. Mr. Pullen identified Dearybury Oil & Gas, Inc.

(Dearybury) as a source for Macro’s fuel purchase.

Macro was already working with FEMA setting up a diesel fuel distribution

plan on Puerto Rico to supply hospitals, nursing homes, and water plants. Shortly

after it initiated negotiations with FMT and Dearybury to purchase and transport

fuel, Macro decided it was not in its best interest to proceed with FEMA’s request.

Macro did not, however, walk away from the negotiations. Instead, Macro and

Dearybury agreed Dearybury would sell fuel directly to FEMA, and it would pay

Macro a five-cent commission on the sale. Before deciding not to contract with

FEMA, Macro also negotiated with FMT to transport frac tanks to Puerto Rico to

implement the distribution of the fuel at different ports on the island.

Macro filed suit against Dearybury, FMT, and Mr. Pullen, asserting breach

of contract and detrimental reliance claims to recover the commission it negotiated

with Dearybury. FMT answered the suit and asserted a counterclaim against

Macro to recover monies it allegedly incurred preparing for Macro’s anticipated

contract with FEMA.1

In April 2019, Macro filed a motion for summary judgment, seeking to

have some of FMT’s claims against it dismissed. The trial court granted the

motion, and FMT appealed the trial court’s judgment. Another panel of this court

determined it did not have jurisdiction to consider the appeal because the judgment

did not dismiss any of FMT’s claims. Thereafter, the defendants filed motions for

summary judgment, citing FEMA’s contingent fee prohibition in the contract and

seeking to have Macro’s claims dismissed. Macro filed another motion for

summary judgment, seeking to have FMT’s claims against it dismissed.

After a hearing, the trial court granted the motions for summary judgment

and dismissed all the parties’ claims. Macro and FMT appealed.2

ASSIGNMENTS OF ERROR

FMT assigns the following errors with the trial court’s judgment

granting Macro’s motion dismissing FMT’s claim for detrimental reliance:

1. The [trial court] erred in granting in part Macro’s first [motion for
summary judgment] when it failed to find genuine issues of fact
regarding representations or promises made by Macro to Florida
Marine before a midday phone call on September 30, 2017;

1
After suit was filed, FMT filed a motion to remove the suit to federal court. The motion
was denied, and the matter was remanded to the trial court. Thereafter, FMT filed its answer.
2
Macro’s appeal of the trial court’s dismissal of its claims against Dearybury, FMT, and
Mr. Pullen is addressed in Macro Companies., Inc. v. Dearybury Oil & Gas, Inc., et al, 20-174
(La.App. 3 Cir. 2/ /21), ___ So.3d ___.

2

2. The [trial court] erred in granting in part Macro’s first [motion for
summary judgment] when it failed to find that Macro’s conduct in
negotiations with Florida Marine constituted “representations” or
“promises;”

3. The [trial court] erred in considering Macro’s second [motion for
summary judgment] despite Macro’s failure to comply with the filing
and service requirements of La. Code Civ. Proc. arts. 966(B)(1) and
1313(C);

4. The [trial court] erred in granting Macro’s second [motion for
summary judgment] when it found that Florida Marine’s desire for a
written agreement precluded its claim for detrimental reliance;

5. The [trial court] erred in granting Macro’s second [motion for
summary judgment] when it failed to find genuine issues of fact
regarding representations made by Macro to Florida Marine after a
midday phone call on September 30, 2017.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo. “The summary

judgment procedure is designed to secure the just, speedy, and inexpensive

determination of every action[.]” La.Code Civ.P. art. 966(A)(2). It is favored and

must be construed to accomplish this purpose. Id. Summary judgment should be

granted, if the parties have had the opportunity to conduct “adequate discovery”

and the evidence shows there is “no genuine issue as to material fact and that the

mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3).

The mover has the burden of proof. La.Code Civ.P. art. 966(D)(1). When,

as here, the adverse party will have the burden of proof at trial, the mover must

show that an essential element to the adverse party’s claim is lacking. Id. The

adverse party must then “produce factual support sufficient to establish” that a

genuine issue of material facts exists or “that the mover is not entitled to judgment

3

as a matter of law.” Id. The allegations or denials in the adverse party’s pleading

will not defeat the motion. La.Code Civ.P. art. 967(B).

“When summary judgment is granted in the context of statutory

interpretation, there are no material issues of fact in dispute and the sole issue

before us is a question of law as to the correct interpretation of the statute at issue.”

Milbert v. Answering Bureau, Inc., 13-22, p. 8 (La. 6/28/13), 120 So.3d 678, 684.

Pursuant to the rules of statutory interpretation, “we are bound to a strict

interpretation of the plain language of the statutory provisions which are before

us.” Id.

Was the Trial Court’s Dismissal of FMT’s Claims against Macro Error?

FMT argues the trial court erred in dismissing its claims for damages against

Macro on the basis of detrimental reliance. Macro asserts the trial court properly

determined that because FMT did not establish Macro represented to it that Macro

would use FMT’s offshore vessels and FMT wanted its agreement with Macro

reduced to writing, the theory of detrimental reliance does not apply to its claims.

Louisiana Civil Code Article 1967 provides, in part:

A party may be obligated by a promise when he knew or should
have known that the promise would induce the other party to rely on it
to his detriment and the other party was reasonable in so relying.
Recovery may be limited to the expenses incurred or the damages
suffered as a result of the promisee’s reliance on the promise.
Reliance on a gratuitous promise made without required formalities is
not reasonable.

In Landry v. Usie, 19-40, p. 10 (La.App. 3 Cir. 12/30/19), 286 So.3d 571,

578 (quoting Luther v. IOM Co., LLC, 13-353, pp. 10-11 (La. 10/15/13), 130 So.3d

817, 825)(citations omitted)(emphasis added), this court outlined the tenets of

detrimental reliance, explaining:

4

The doctrine of detrimental reliance is designed to prevent
injustice by barring a party from taking a position contrary to his
prior acts, admissions, representations, or silence. To establish
detrimental reliance, a party must prove three elements by a
preponderance of the evidence: (1) a representation by conduct or
word; (2) justifiable reliance; and (3) a change in position to one’s
detriment because of the reliance. Estoppels are not favored in our
law; therefore, a party cannot avail himself of that doctrine if he fails
to prove all essential elements of the plea.

The second circuit further discussed the significance of detrimental reliance

in Benton v. Clay, 48,245, p. 15 (La.App. 2 Cir. 8/7/13), 123 So.3d 212, 223

(emphasis added), stating:

[D]etrimental reliance is not based upon the intent to be bound.
Rather, the basis of detrimental reliance is the idea that a person
should not harm another person by making promises that he will not
keep. Thus, the focus of analysis of a detrimental reliance claim is not
whether the parties intended to perform, but, instead, whether a
representation was made in such a manner that the promisor should
have expected the promisee to rely upon it, and whether the promisee
so relies to his detriment.

FMT points to communications between its employee Kenneth Pullen,

Macro’s employee Clyde Guilbeau, and Macro’s vice-president, in support of its

claim. On September 29, 2017, communications between Mr. Pullen and Mr.

Guilbeau show that Mr. Pullen provided Macro proposals to transport frac tanks to

Puerto Rico and informed Mr. Guilbeau that it had started modifications on a ramp

for the supply boat that would be used to transport the frac tanks. In an email on

the morning of September 30, 2017, Mr. Pullen asked Mr. Guilbeau to inform him

ASAP regarding the supply boat because he could not start “chopping up the boat

without confirmation.” Later that morning, Mr. Guilbeau responded that FEMA

did not like the price for delivering only fourteen frac tanks. Mr. Pullen averred in

his affidavit that Macro’s vice-president thereafter informed him at midday on

5

September 30, 2017, that Macro would contract with FMT if it “could fit sixteen

frac tanks on a supply boat.”

These communications show a genuine issue of material fact exists as to

whether: (1) Macro made representations to FMT that it would contract with FMT

to transport frac tanks to Puerto Rico; (2) FMT reasonably relied upon such

representations; and (3) FMT incurred expenses based on those representations.

Macro also urges that because FMT wanted its agreement with Macro

reduced to writing, FMT’s claim lacks merit because no written agreement was

confected. FMT asserts that based on Mr. Pullen’s discussions with Macro and the

exigent circumstances, it began preparations to fulfill Macro’s requests. The

evidence shows that, on September 30, 2017, Mr. Guilbeau acknowledged FMT

wanted a written proposal but, nonetheless, reiterated the urgency in getting things

ready to make the necessary shipments to Puerto Rico. For these reasons, we find

FMT’s allegations fall within the parameters of La.Civ.Code art. 1967 and that the

evidence shows genuine issues of material fact exist as to whether or not Macro’s

discussions with FMT amounted to representations that Macro would use FMT’s

supply boat and frac tanks and whether or not FMT required a written agreement

with Macro before performing the requested work. Therefore, the trial court erred

in granting Macro’s motion for summary judgment against FMT.

CONCLUSION

The trial court’s judgment dismissing Florida Marine Transporters, LLC’s

claims for detrimental reliance against Macro Companies, Inc. is reversed, and the

matter is remanded to the trial court for further proceedings. All costs associated

with this appeal are assessed against Macro Companies, Inc.

REVERSED AND REMANDED.

6