Lee Swimming Pools, LLC v. Bay Pool Company Construction, LLC et al

Filing 120

ORDER denying 95 Motion for Summary Judgment; denying 96 Motion for Summary Judgment; denying 102 Motion for Summary Judgment; granting 102 Motion to Dismiss pursuant to Fed.R.Civ.12(b)(6) by defendant/counter-plaintiff Adam Landrum. Signed by District Judge Louis Guirola, Jr on 4/29/2020 (PKS)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
LEE SWIMMING POOLS, LLC, f/k/a
BAY POOL COMPANY, LLC
v.

PLAINTIFF
CAUSE NO. 1:18CV118-LG-RHW

BAY POOL COMPANY
CONSTRUCTION, LLC, and ADAM
LANDRUM

DEFENDANTS/COUNTERPLAINTIFFS

v.
LEE SWIMMING POOLS, LLC, f/k/a
BAY POOL COMPANY, LLC; JOEL
LEE, individually and as the
agent/member of LEE SWIMMING
POOLS, LLC
BAY POOL COMPANY
CONSTRUCTION, LLC, and ADAM
LANDRUM

COUNTER-DEFENDANTS

THIRD-PARTY PLAINTIFFS

v.
LEE SWIMMING POOLS, LLC, f/k/a
BAY POOL COMPANY, LLC; JOEL
LEE, individually and as the
agent/member of LEE SWIMMING
POOLS, LLC; and JOEL BUCHANAN,
individually and as the agent/member
of ISLAND VIEW POOLS, LLC
THIRD-PARTY DEFENDANTS

ORDER REGARDING SUMMARY JUDGMENT MOTIONS
BEFORE THE COURT are three summary judgment motions in this breach
of contract case. First is the fully briefed [95] Motion for Summary Judgment filed

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by Plaintiffs/Counter-Defendants Lee Swimming Pools, LLC, f/k/a Bay Pool
Company, LLC and Joel Lee. Second are two motions for which there was no reply
brief filed: the [96] Motion for Summary Judgment filed by Counter-Defendants
Island View Pools, LLC and Joel Buchanan, and the [102] Motion for Summary
Judgment or to Dismiss filed by Defendant/Counter-Plaintiff Adam Landrum.
Because these motions involve common issues of law and fact, they are resolved
together.
After due consideration, the Court concludes that the claims against Adam
Landrum should be dismissed; the breach of contract claims that are at the heart of
this case should go to the jury; and the remainder of the claims do not have
sufficient factual support to create a jury question. The Motions are therefore
granted in part and denied in part.
BACKGROUND
This is a breach of contract action. Plaintiff Lee Swimming Pools, LLC sold
the assets of Bay Pool Company, LLC to Bay Pool Company Construction, LLC
(“BPCC”) for $200,000 in February 2016. The contract provided for a $50,000 down
payment, with the remaining $150,000 to be paid by monthly payments calculated
from monthly sales and supplier rewards. (Am. Compl. Ex. A, at 1-2, ECF No. 3-1.)
Lee Swimming Pools alleges that BPCC stopped making payments after August
2017, when the outstanding balance was $96,988.10. (Am. Compl. 3, ECF No. 3.)
Lee Swimming Pools’ claims against BPCC and its president Adam Landrum are

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for breach of contract, tortious breach of contract, breach of the implied duty of good
faith and fair dealing, and unjust enrichment.
BPCC and Landrum (the “Landrum Parties”) filed [8] counterclaims against
Lee Swimming Pools, LLC for breach of contract and related torts, seeking
compensatory and punitive damages. The Landrum Parties also filed a [24] thirdparty complaint against Island View Pools, LLC, its sole member Joel Buchanan
(the “Buchanan Parties”), and Joel Lee. The third-party complaint includes claims
of breach of contract and related torts and seeks compensatory and punitive
damages.
The summary judgment motion filed by Lee Swimming Pools and Joel Lee
(the “Lee Parties”) asserts that they are entitled to summary judgment as to all
claims against them in the First Amended Counterclaim and the Third-Party
Complaint. The Buchanan Parties’ summary judgment motion asserts that they
are entitled to summary judgment as to all claims against them in the Third-Party
Complaint. Adam Landrum’s motion asserts that he is entitled to dismissal or
summary judgment as to all claims against him in the First Amended Complaint.
DISCUSSION
1. Breach of Contract
“A breach-of-contract case has two elements: (1) ‘the existence of a valid and
binding contract,’ and (2) a showing ‘that the defendant has broken, or breached it.’”
Maness v. K & A Enters. of Miss., LLC, 250 So. 3d 402, 414 (Miss. 2018) (quoting
Bus. Commc’ns, Inc. v. Banks, 90 So.3d 1221, 1224 (Miss. 2012)). Only Adam

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Landrum, in his separately filed summary judgment motion, disputes the existence
of a valid and binding contract. Adam Landrum argues that he, as an individual,
was not a party to the Agreement, and therefore he cannot be liable for a breach of
the Agreement. As for the remaining parties, their positions are as follows:
1) the Lee Parties argue that they “assisted with the orderly transition of the
business to the Landrum parties for a longer period than was required” but the
Landrum Parties have not paid the Lee Parties the full amount due under the
Agreement. (Lee Parties Mem. 4, ECF No. 97.)
2) the Landrum Parties argue that the Lee Parties materially breached the
Agreement by violating the noncompete clause, and thereby relieved the Landrum
Parties of their obligation to pay the full amount due. According to the Landrum
Parties, the Lee Parties violated the noncompete clause by engaging in pool
construction business with the Buchanan Parties in Mississippi.
A. Adam Landrum’s Motion to Dismiss or for Summary Judgment
Adam Landrum, individually, moves for dismissal of the breach of contract
and related claims made against him by Lee Swimming Pools, LLC in the First
Amended Complaint. Adam argues that he is not a party to the Agreement; he
merely signed it as President of BPCC. The Lee Parties argue that Adam pledged
his personal assets as collateral for the debt owed on the Agreement, and therefore
“he is properly before this Court as a necessary and named defendant that has
participated in breaching the Agreement, causing harm to the Lee parties.” (Lee
Parties Mem. Resp. 3, ECF No. 112.) The provision at issue reads:

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Buyer agrees to the following payment terms of the remaining owed
$150,000. Buyer will maintain professional accountant to oversee
books. 2% of total sales will be paid to seller monthly until $150,000 is
paid back. Any dollar rewards from suppliers shall be paid to seller
toward the balance. Seller retains rights to all items included in the
sale, future purchases of Adam Landrum/Bay Pool Company
Construction and personal assets of Adam Landrum until the full
balance of $200,000 is paid in full.
(Asset Purchase Agmt. 5, ECF No. 96-7) (ECF pagination).
This provision does not make Adam Landrum a party to the Agreement. It
merely purports to make him a guarantor of BPCC’s obligations. The parties to the
Agreement are the LLC’s, who are the “buyer” and “seller.”

(Id. at 1.) Each principal signed the Agreement on behalf of his respective LLC, but
neither signed as an individual.

(Id. at 6.)
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Adam Landrum, as an individual, is not a party to the Agreement. Lee
Swimming Pools’ claims against Adam Landrum for breach of contract, breach of
the implied duty of good faith and fair dealing, and tortious breach of contract must
all be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). See Rosenfelt
v. Mississippi Dev. Auth., 262 So. 3d 511, 517 (Miss. 2018), reh’g denied (Feb. 7,
2019)( Because the alleged agreements were with the LLCs Rosenfelt was
representing, he has no right to enforce the agreements personally, even if
the LLCs were entirely owned and operated by him. It is fundamental corporation
and agency law that a corporation's shareholder and contracting officer has no
rights and is exposed to no liability under the corporation's contracts.). Each of
these claims requires the showing of a valid and enforceable contract between Adam
Landrum and Lee Swimming Pools. The facts alleged in the First Amended
Complaint and its attachments are insufficient to state any breach of contract claim
against Adam Landrum that is plausible on its face. See Phillips v. City of Dallas,
Tex., 781 F. 3d 772, 775-76 (5th Cir. 2015) (citing Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)).
Additionally, Adam moves for dismissal of Lee Swimming Pools’ unjust
enrichment claim. “Unjust enrichment applies to situations ‘where there is no legal
contract and “the person sought to be charged is in possession of money or property
which in good conscience and justice he should not retain but should deliver to
another.”’” Ground Control, LLC v. Capsco Indus., Inc., 120 So. 3d 365, 371 (Miss.
2013) (emphasis omitted) (quoting Powell v. Campbell, 912 So. 2d 978, 982 (Miss.

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2005)). In support of his motion, Adam argues that 1) there is no allegation he
received any payment that he should not retain; 2) he is not actually in possession
of money or property belonging to Lee Swimming Pools; and 3) the money allegedly
owed in this case is subject to a legally binding contract between Lee Swimming
Pools and BPCC.
Lee Swimming Pools did not respond to this portion of Adam Landrum’s
Motion. Review of the allegations shows that the unjust enrichment claim is, in
actuality, a breach of contract claim. Lee Swimming Pools alleges that
Bay Pool Construction represented that it would pay $200,000.00 for
the purchase of the construction and maintenance company. Landrum
guaranteed the payment. However, Bay Pool Construction has never
provided the recapitulation of the monthly sales to show that it was
making the correct payments toward the balance. Further Bay Pool
Construction ceased making any payments following August 1, 2017.
Bay Pool Construction and Landrum have failed to pay the total
purchase price of the contract, leaving $96,988.10 due and owing.
Therefore, they have been unjustly enriched at the expense of Lee
Swimming Pools.
(Am. Compl. 5-6, ECF No. 3.) In other words, BPCC made sales, failed to forward
the contracted portion of sales to Lee Swimming Pools, and Adam Landrum has not
made good on his “guarantee.”
Because Adam Landrum is not a party to the Agreement, the “guarantee”
language is unenforceable against him as a matter of contract. Additionally, the
allegation is that BPCC – not Adam Landrum – received and retained funds that
belong to Lee Swimming Pools. This allegation does not state a plausible claim that
Adam Landrum has possession of funds belonging to Lee Swimming Pools. For

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these reasons, the unjust enrichment claim against Adam Landrum should be
dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
B. The LLC’s Breach of Contract/Breach of the Duty of Good Faith and Fair
Dealing Claims
There is no dispute that BPCC did not pay the full amount due under the
Agreement, and thus no question that it breached the Agreement. According to the
First Amended Complaint, BPCC’s last payment to Lee Swimming Pools was made
around August 1, 2017. The repayment term specified that “2% of total sales will be
paid to seller monthly until $150,000 is paid back.” (Asset Purchase Agmt. 5, ECF
No. 96-7.) Lee Swimming Pools requested an accounting by letter dated October 24,
2017 to confirm that BPCC was in compliance with the Agreement. (Am. Compl.
Ex. B, at 2, ECF No. 3-2 (ECF pagination).)
The Landrum Parties produced evidence in support of their argument that
their failure to pay was excused because the Lee Parties materially breached the
Agreement first by violating the noncompete clause. Specifically, Bay Pool
Company, LLC applied for and obtained a permit on September 20, 2017 to
construct a swimming pool in Bay St. Louis, Mississippi. (Landrum Parties’ Resp.
in Opp. to Buchanan Parties’ Mot. for Summ. J. Ex. 7, ECF No. 113-8.) The Asset
Purchase Agreement forbids Bay Pool Company, LLC from “providing swimming
pool construction and maintenance for a period of five (5) years” in Mississippi and
Louisiana. (Asset Purchase Agmt. 3, ECF No. 96-7.)
Both Joel Lee and Joel Buchanan testified that Buchanan (the principal of
Island View Pools, LLC) actually applied for the permit in Bay Pool Company,
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LLC’s name. (Joel Lee Dep. 78, ECF No. 115-9; Buchanan Dep. 15, ECF No. 11510.) Lee testified he had no knowledge that Buchanan had obtained a pool
construction permit in Bay Pool Company’s name. (Joel Lee Dep. 78-79, ECF No.
115-9.) Whittney Landrum testified she was familiar with and recognized Lee’s
signature on the permit. (Whittney Landrum Dep. 60, ECF No. 115-4.) This
evidence presents a credibility issue not suitable for resolution on summary
judgment. Instead, a jury must make the credibility choices and factual findings
necessary to resolve the breach of contract claims between Lee Swimming Pools and
BPCC.
Because the breach of contract claims should proceed to trial, the claims for
breach of the duty of good faith and fair dealing should likewise proceed to trial.
Constr. Servs., L.L.C. v. Indus. & Crane Servs., Inc., No. 1:17CV304-HSO-JCG, 2019
WL 1246482, at *6 (S.D. Miss. Mar. 18, 2019).
C. Tortious Breach of Contract
A tortious breach of contract is a breach of contract coupled with “some
intentional wrong, insult, abuse, or negligence so gross as to constitute an
independent tort.” Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 66 (Miss.
2004). The claim has been brought by the Landrum Parties against the Lee Parties,
(3d Party Compl. 5, ECF No. 24) and by Lee Swimming Pools against the Landrum
Parties. (Am. Compl. 4-5.)

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First, this claim is not viable to the extent it has been brought against or by
individual defendants Adam Landrum and Joel Lee because neither is a contracting
party.
Next, BPCC’s evidence supporting its claim against Lee Swimming Pools is
that Buchanan “admitted” he obtained the pool construction permit for Lee.
(Landrum Parties’ Mem. Resp. to Lee Parties’ Mot. Summ J. 6, CF No. 116.) This
evidence does not show a separate tort, but is simply the method by which Lee
Swimming Pools is alleged to have committed a breach of contract. For its part, Lee
Swimming Pools alleges that the BPCC’s “failure to respond in any meaningful way
to Lee Swimming Pools’ notifications of a breach of the contract has caused, and
continues to cause, Lee Swimming Pools to be exposed to damages as a result of the
delays in payment.” (Am. Compl. 5, ECF No. 3.) These allegations describe an
ordinary course of events attendant to a breach of contract, not actions that
constitute an independent tort.
The Court concludes that even if the jury were to find that one of the
contracting LLCs breached the Agreement, neither LLC has made sufficient
allegations or produced evidence that would allow a jury to find that the breach was
tortious. For these reasons, the tortious breach of contract claim will be dismissed
as to all parties.
3.

Potential Interference with Contract and Advantageous Business
Activities
The Landrum Parties bring a claim of “potential interference with contract

and advantageous business activities” against the Lee Parties and the Buchanan
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Parties. (3d Party Compl. 5-6, ECF No. 24.) The Court construes this as claims of
tortious interference with contract and tortious interference with business relations.
The Fifth Circuit has set out the elements necessary to establish a tortious
interference claim:
Pursuant to Mississippi law, tortious interference with business
relations requires showing: “(1) the acts were intentional and willful;
(2) the acts were calculated to cause damage to the plaintiffs in their
lawful business; (3) the acts were done with the unlawful purpose of
causing damage and loss without right or justifiable cause on the part
of the defendant (which constitutes malice); and (4) actual loss and
damage resulted.” PDN, Inc. v. Loring, 843 So. 2d 685, 688 (Miss.
2003). In addition to the above elements, tortious interference with
contract includes malicious interference with a valid contract. Levens
v. Campbell, 733 So. 2d 753, 759-61 (Miss. 1999).
Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 458-59 (5th Cir. 2005) (emphasis
in original).
The Court notes initially that a party to a contract cannot be liable for
tortious interference with the same contract. Gulf Coast Hospice LLC v. LHC Grp.
Inc., 273 So. 3d 721, 745 (Miss. 2019). Because Lee Swimming Pools was a party to
the contract, BPCCs tortious interference with contract claim against it must be
dismissed.
The acts BPCC submits support its tortious interference claim are that 1)
Joel Lee “transported and delivered a fiberglass pool to a residence in Mississippi;”
2) Joel Buchanan and Island View Pools have done business with Joel Lee and Lee
Swimming Pools; and 3) “Joel Buchanan has responded to customer
requests/questions on Lee Swimming Pools’ Facebook page about pool construction
in Mississippi.” (3d Party Compl. 3-4, ECF No. 24.)
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BPCC asserts that the “most important evidence” of acts supporting its claim
is Joel Buchanan’s testimony that he signed the Bay Pool Company permit
application for Joel Lee, because “[t]hat is evidence of the intention to interfere and
collusion to harm.” (Id. at 9.) BPCC also points to deposition testimony from
Whittney Landrum. Whittney stated that on some unspecified date, she observed
“Joel Buchanan [ ] picking up Joel Lee’s equipment.” (Whittney Landrum Dep. 31,
ECF No. 115-4.) She followed Buchanan to a jobsite in Diamondhead, Mississippi.
(Id.) Additionally, Whittney noted similarities between Facebook pages for Island
View Pools and Lee Swimming Pools, and potential referrals from Lee Swimming
Pools to Island View Pools. The remainder of her testimony relates a number of
things she was told by other parties about the activities of Joel Lee, Joel Buchanan,
and their respective LLCs. (Landrum Parties Mem. Resp. to Lee Swimming Pools,
LLC’s Mot. Summ. J. 7-9, ECF No. 116.) The statements of other people are not
competent summary judgment evidence when offered through Whittney’s
testimony, so they must be disregarded.
Whittney’s testimony about Buchanan’s use of Lee’s equipment does not
establish tortious interference. The Agreement does not prohibit Joel Lee from
allowing others to use his equipment, and he has a lawful right to do so. See Gulf
Coast Hospice LLC v. LHC Grp. Inc., 273 So. 3d 721, 746 (Miss. 2019) (interference
complained of must be wrongful in order to be actionable). The Agreement also does
not prohibit Lee Swimming Pools from advertising, nor does it require Lee
Swimming Pools to refer any pool construction inquiry to BPCC beyond an initial

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thirty-day transition period.1. There is nothing inherently wrongful about these
activities. Since tortious interference with business relations occurs only when “a
person unlawfully diverts prospective customers away from one’s business,” Par
Industries, Inc. v. Target Container Co., 708 So. 2d 44, 48 (Miss. 1998), there is no
question of material fact for the jury concerning this claim.
However, Bay Pool Company’s pool construction permit is another matter,
because that indicates a direct violation of the Agreement. Evidence of who signed
the application, and thus committed the act, is conflicting. Nevertheless, it was an
intentional and willful act, satisfying the first element of a tortious interference
claim. Whether the act was calculated to cause damage or done with the unlawful
purpose of causing damage and loss to BPCC are questions of motive and intent not
appropriate for resolution on summary judgment. See Cooper Tire & Rubber Co.,
423 F.3d at 459. There is some evidence of actual loss and damage BPCC suffered
as a result. BPCC’s Rule 30(b)(6) deponent – Whittney Landrum – testified that at
the time of her deposition she did not know how many pools BPCC had lost out on
constructing. (BPCC Dep. 90, ECF No. 95-6.) But she did estimate that BPCC had
lost around $1.2 million “after Joel Lee and [Buchanan] came in cahoots and he
began competing.” (Id. at 88.) Some of this loss can be attributed to the pool
construction permit applied for in the name of Bay Pool Company. For this reason,

The Agreement provides that the “Seller agrees to provide a . . . 30-day
transition period . . . . During this period seller will use their best efforts to promote
the business of the buyer and effect an orderly transition of all customers to the
buyer.” (Buchanan Mot. Summ. J. Ex. G, at 2, ECF No. 96-7.)
1

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the Court finds sufficient evidence to present a jury question on BPCC’s claim of
tortious interference with contract against Joel Lee and Joel Buchanan.
4. Civil Conspiracy and Collusion
In Mississippi, a claim of civil conspiracy “requires a finding of: (1) two or
more persons or corporations; (2) an object to be accomplished; (3) a meeting of the
minds on the object or course of action; (4) one or more unlawful overt acts; and (5)
damages as the proximate result.” Braddock Law Firm, PLLC v. Becnel, 139 So. 3d
722, 726 (Miss. Ct. App. 2013). “For a civil conspiracy to arise, the alleged
confederates must be aware of the fraud or wrongful conduct at the beginning of the
agreement.” Bradley v. Kelley Bros. Contractors, 117 So. 3d 331, 339 (Miss. Ct. App.
2013). “And even if there is a clear agreement on the front end, ‘[a] conspiracy
standing alone, without the commission of acts causing damage is not actionable.’”
Id. (quoting 15A C.J.S. Conspiracy § 7). “Mississippi follows the rule of almost all
jurisdictions in uniformly requiring that civil conspiracy claims be predicated upon
an underlying tort that would be independently actionable.” Waggoner v. Denbury
Onshore, L.L.C., 612 F. App’x 734, 739 (5th Cir. 2015) (citations omitted).
The Lee Parties argue that there is no evidence that the Lee and Buchanan
Parties conspired or colluded against the Landrum Parties; that the only evidence
in support of this claim is merely hearsay and innuendo. The Lee Parties
specifically argue that the Landrum Parties have not produced any admissible
evidence that the Lee and Buchanan Parties formed a partnership, entered into a
contract to form a business, exchanged monies in furtherance of a business, or

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performed any other act in furtherance of starting or operating a business to
compete with the Landrum Parties.
The Landrum Parties argue that “through conspiracy and collusion the
Buchanan parties assisted the Lee parties in breaching their duties to the Landrum
parties.” (Landrum Parties Resp. Mem. To Pl. Mot. Summ. J. 13, ECF No. 116.)
The Landrum Parties contend that the record is replete with admissible evidence of
conspiracy and collusion. (Id.). The facts cited are those testified to by Whittney
Landrum above, which are either not suggestive of wrongdoing or offered only in
the form of inadmissible hearsay. (See id. 10-12.) The Court therefore finds no
question of material fact for the jury on the civil conspiracy claim.
5. Damages
The Lee Parties argue that the Landrum Parties have failed to provide any
proof of lost income and increased expenses as claimed in the Amended Complaint.
Monetary damages are not an element of a breach of contract claim, and the Court
earlier noted testimony from BPCC’s 30(b) deponent that provided enough evidence
of monetary damages to allow the jury to consider that as a remedy. See Home Base
Litter Control, LLC v. Claiborne Cty., 183 So. 3d 94, 102 (Miss. Ct. App. 2015) (“[A]
plaintiff seeking monetary damages for breach of contract must put into evidence,
with as much accuracy as possible, proof of the damages being sought.”).
CONCLUSION
There are questions of material fact regarding BPCC’s and Lee Swimming
Pools’ claims of breach of contract and breach of the duty of good faith and fair

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dealing. BPCC has also shown a question of material fact concerning its tortious
interference with contract claim against Joel Lee and Joel Buchanan. The
remainder of the parties’ claims lack sufficient evidence to create a question of
material fact and will be dismissed.
IT IS THEREFORE ORDERED AND AJDUDGED that the [95] Motion
for Summary Judgment filed by Plaintiffs/Counter-Defendants Lee Swimming
Pools, LLC, f/k/a Bay Pool Company, LLC and Joel Lee is DENIED as to the breach
of contract and breach of the duty of good faith and fair dealing claims against it.
The Motion is GRANTED in all other respects.
IT IS FURTHER ORDERED AND ADJUDGED that the [96] Motion for
Summary Judgment filed by Counter-Defendants Island View Pools, LLC and Joel
Buchanan is DENIED as to the claim of tortious interference with contract claim
brought by Bay Pool Company Construction, LLC, and GRANTED in all other
respects.
IT IS FURTHER ORDERED AND ADJUDGED that the [102] Motion to
Dismiss pursuant to Fed. R. Civ. 12(b)(6) by Defendant/Counter-Plaintiff Adam
Landrum is GRANTED.
SO ORDERED AND ADJUDGED this the 29th day of April, 2020.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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