Alebamon Marine Services, L.L.C. v. Ocean Marine Contractors Scrap Division, L.L.C.

Filing 51

ORDER AND REASONS granting in part and denying in part 39 Motion to Amend the findings of fact. FURTHER ORDERED that the parties submit simultaneous supplemental briefing as to the interest rate no later than 9/9/2015. FURTHER ORDER denying 38 Motion for New Trial. Signed by Judge Martin L.C. Feldman on 9/2/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ALEBAMON MARINE SERVICES, LLC

CIVIL ACTION

v.

NO. 14-2453

OCEAN MARINE CONTRACTORS (SCRAP DIVISION), LLC

SECTION "F"

ORDER AND REASONS
Before the Court are two motions by the defendant: motion to
add or amend the findings of fact, and motion new trial.

For the

reasons that follow, the motion to add or amend findings of fact is
GRANTED IN PART and DENIED IN PART, and the motion for a new trial
is DENIED.
Background
This case was tried to the Court without a jury on May 11,
2015.

The central issue at trial was the terms of an oral

modification to a written contract to buy and sell vessels to allow
for delayed partial payment.

In June 2013, Alebamon Marine

Services, LLC and Ocean Marine Contractors (Scrap Division), LLC
entered into a written contract whereby Alebamon agreed to sell and
OMC agreed to buy six vessels for $1.6 million, to be delivered to
OMC in Trinidad and then towed to Louisiana.

Only two of the six

vessels made it from Trinidad to Louisiana for scrapping.
OMC was obligated to pay an initial 10% deposit and the

1

balance of the purchase price within 30 days thereafter, i.e. by
July 30, 2013.

By August, OMC had paid all but $300,000, and that

$300,000 is the subject of this case.
Alebamon

had

orally

agreed

to

OMC contended at trial that

defer

receiving

the

$300,000 until all six vessels were in Louisiana.

remaining
Alebamon

responded that it did agree to defer payment, but only for 90 days,
and that this was in exchange for an 18% interest payment.
At trial, Adam Hargrove, the president and owner of Alebamon
and the only witness who testified as to the 18% interest rate,
testified that the parties agreed orally to defer payment for 90
days at a 12% interest rate for those 90 days, and "then an 18%
default after that 90-day period." He repeated these terms several
times, and counsel for Alebamon stated in argument that Alebamon
"request[ed] judgment in its favor and against Ocean Marine for the
principal amount, $300,000, with interest at 12% for the first 90
days until November 7, then jumping up to 18%."

Hoby Dillon, who

worked as OMC's Chief Financial Officer and whom the Court found
incredible, testified that no such agreement was made.
The Court ruled from the bench in favor of Alebamon, stating
as to the quantum owed to Alebamon: "The plaintiff is entitled to
the prejudgment interest, I believe, in the amount of $54,000
calculated, I believe, every three months beginning November 7,
2013, and the Court taxes all costs to the defendant."

The Court

subsequently entered judgment in favor of Alebamon and against

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Ocean Marine in the amount of $660,000, plus post-judgment interest
at the prevailing federal rate and plaintiff's taxable costs.

The

award of $660,000 was calculated as follows: the principal amount
of $300,000; plus prejudgment interest of $36,000 (simple interest
of 12% on the principal amount for the 90-day period ending
November 7, 2013); plus prejudgment interest of $324,000 (simple
interest of 18% on the principal amount ($54,000) every 90 days
from November 8, 2013, through the date of the trial).
OMC now moves to add or amend the findings of fact to correct,
among other alleged errors, the interest rate imposed.

It also

moves for a new trial on these issues.
I. Motion to Add or Amend Findings of Fact
A.
Federal Rule of Civil Procedure 52(b) allows the Court to
amend its judgment or add or amend findings of fact.

"The purpose

of motions to amend is to correct manifest errors of law or fact
or,

in

some

evidence."

limited

situations,

to

present

newly

discovered

Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219

(5th Cir. 1986).

"This is not to say, however, that a motion to

amend should be employed to introduce evidence that was available
at trial but was not proffered, to re-litigate old issues, to
advance new theories, or to secure a rehearing on the merits." Id.

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B.
OMC

contends

that

the

judgment

contains

manifest

errors

because: (1) the record is devoid of any evidence of Dillon's
actual authority to bind OMC to the oral modification; (2) the
Court improperly found Dillon to be an employee of OMC; (3) the
Court erred in finding Dillon's testimony was rehearsed; (4) the
Court improperly concluded that the parties entered into the oral
modification; (5) the Court incorrectly concluded that the oral
modification imposed a default interest rate of 18% every 90 days;
and (6) the Court should amend its findings of fact and conclusions
of law to accommodate newly discovered evidence, including two
affidavits, an IRS form 1099, and a deposition transcript.
The

majority

of

these

issues

do

not

warrant

lengthy

discussion; it is well settled, for example, that it is within the
trial court's discretion to make credibility determinations as the
finder of fact.

See Fed. R. Civ. P. 52(a); Canal Barge Co., Inc.

v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir. 2000).

Observing the

evidence at trial, and the witnesses' demeanor, the Court had the
discretion
Hargrove's.

to

disbelieve

Dillon's

testimony

and

to

credit

Questions of impeachment, rehearsed testimony, and

memory were to be raised at trial and will not be re-litigated by
way of post-trial motions.

Simon v. United States, 891 F.2d 1154,

1159 (5th Cir. 1990).
The defendant also contends that there was no evidence that

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Dillon had the authority to bind OMC.

The question of Dillon's

authority was a central focus of the trial and has been thoroughly
litigated. The evidence at trial showed that Dillon, as OMC's CFO,
had the authority over OMC's finances and had the authority to
confer with Alebamon about a modification to the contract. But the
defendant submits what it calls new evidence: an IRS form showing
that Dillon was not paid directly by OMC, and affidavits from a
witness who testified at trial and one who did not.

None of this

is new evidence that could not have been discovered previously.
The evidence at trial, however, does not support the interest
rate referenced in the Judgment, and this calculation was in error.
Hargrove testified that the interest was to be at 12% for 90 days,
and then, if payment had not been received after those 90 days, the
interest rate would go up to 18%.

This statement was never

followed with "for every 90-day period thereafter." In reliance on
Alebamon's pretrial papers, however, the Court imposed such a rate,
adding $54,000 to Alebamon's damages for every 90-day period from
November 2013 to the date of trial.

This finding is contrary to

the evidence and results in interest exceeding the principal.
The defendant, focusing on the alleged illegality of the
interest rate and credibility determinations that it believes
warrant

additional

findings

appropriate interest rate.

of

fact,

fails

to

identify

the

Absent evidence of the custom and

practice in the industry of identifying an 18% interest rate

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without further specification, the Court cannot determine the
correct rate.
II. Motion for New Trial
A.
Federal Rule of Civil Procedure 59(a)(1) allows the Court to
grant a new trial.

The Rule contemplates a range of grounds that

may warrant a new trial, including a prejudicial error of law,
excessive damages, newly discovered evidence, or unfairness. A new
trial is an extraordinary remedy that should only be granted in
limited circumstances.

Templet v. HydroChem Inc., 367 F.3d 473,

479 (5th Cir. 2004). Rule 59 motions should not be used to
relitigate old matters, raise new arguments, or submit evidence
that could have been presented earlier in the proceedings.
891 F.2d at 1159.

Simon,

The movant on a Rule 59 motion bears the burden

of showing harmful error, and the decision to grant a new trial is
left to the trial court's discretion.

Del Rio Dist., Inc. v.

Adolph Coors Co., 589 F.2d 176, 179 & n.3 (5th Cir. 1979).
B.
The issues raised in the motion for a new trial are, for the
most part, the same contained in the motion to amend the findings
of fact,1 and they fail for the reasons explained.
1

Because the

The defendant also contends that the deferred payment was in
fact a loan and thus Dillon required express authority to enter
into it, and the interest rate is illegal under Louisiana law. The
contract at issue, however, was always one to buy and sell. See
Motes v. Van Wagner, 188 So. 2d 704, 705 (La. Ct. App. 4 Cir. 1966)
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interest rate can be cured without resort to the extraordinary
remedy of a new trial, there is no such need.
Thus, IT IS ORDERED that the motion to amend the findings of
fact is hereby GRANTED IN PART as to the interest rate and DENIED
IN PART as to all other issues.
parties

submit

simultaneous

IT IS FURTHER ORDERED that the

supplemental

briefing

interest rate no later than September 9, 2015.

as

to

the

Failure to do so

will result in the Court issuing an amended judgment in which the
damages are calculated as follows: $300,000 principal; plus 12% for
the 90-day period in 2013 ($36,000); plus 18% simple, annual
interest thereafter ($81,221.92); for a total of $417,221.92. Such
amended judgment should be submitted by Alebamon within the same
time frame, unless there is supplemental briefing.
IT IS FURTHER ORDERED that the motion for a new trial is
DENIED.

New Orleans, Louisiana, September 2, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

(finding that the maximum allowed interest on a loan did "not apply
to a bona fide credit sale of property.").
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