Traffic Jam Events, LLC v. White and Sons, Inc.
Filing
43
ORDER granting 35 Motion for Summary Judgment; denying as moot 33 Motion to Dismiss. A Final Judgment dismissing the case with prejudice shall be entered. Signed by District Judge William H. Barbour, Jr., on 6/20/2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
TRAFFIC JAM EVENTS, LLC
PLAINTIFF
VS.
CIVIL ACTION NO. 5:13-cv-288-WHB-RHW
WHITE AND SONS, INC.
DEFENDANT
OPINION AND ORDER
This cause is before the Court on the Motion of Defendant for
Summary Judgment. Having considered the pleadings, the attachments
thereto, as well as supporting and opposing authorities, the Court
finds the Motion is well taken and should be granted.1
I.
Factual Background and Procedural History
Traffic Jam Events, LLC, (“Traffic Jam”), is a business that
promotes
and
assists
in
staffed
sales
events
at
automobile
dealerships.
White and Sons, Inc., d/b/a Keith White Ford Lincoln
(“White
Sons”)
and
owns
an
automobile
dealership
in
McComb,
Mississippi. Traffic Jam conducted several staffed sales events at
the White and Sons dealership including one that ended on August 4,
2012.
On August 6, 2012, Keith White (“White”), who is the President
of
White
1
and
Sons,
met
with
David
Hillyard
(“Hillyard”),
an
Defendant also filed a motion seeking dismissal under
Rule 37 of the Federal Rules of Civil Procedure based on the
failure of the Plaintiff to have its Rule 30(b)(6) witness appear
at a properly noticed deposition. Having concluded that summary
judgment should be granted, the Motion to Dismiss will be denied
as moot.
independent contractor who was employed by Traffic Jam, for the
purpose of “settling-up” after the recently-concluded sales event.
In addition to discussing matters associated with the sales event
and dividing the proceeds generated therefrom, White and Hillyard
discussed the possibility of conducting another sales event at the
end of November.
White and Hillyard aver that no agreement was
reached between White and Sons and Traffic Jam with respect to the
November sales event.
White did, however, sign a draft copy of a
Client Agreement he was given by Hillyard after placing several
hand-written notations and question marks on it.
According to
White, the hand-written notations referred to “areas of the draft
document which would have to be discussed and agreed upon” later.
Although no further discussions or negotiations were conducted by
the parties, the draft Client Agreement was later signed by David
Jeansonne
(“Jeansonne”),
President
of
Traffic
Jam.
Sometime
thereafter, White and Sons advised Traffic Jam that it was not
going to conduct a sales event in November.
Traffic Jam filed a complaint against White and Sons, which
was amended in June of 2013.2
In the Amended Complaint, Traffic
Jam alleges that it had entered a contract, dated August 4, 2012,
with White and Sons for the purpose of conducting a sales event
beginning on November 28, 2012.
See Am. Compl. [Docket No. 15], ¶
2
The pleadings show that Traffic Jam is considered a
citizen of Louisiana, White and Sons is considered a citizen of
Mississippi, and Traffic Jam seeks damages totaling over
$240,000. Accordingly, the Court may properly exercise federal
subject matter jurisdiction pursuant to 28 U.S.C. § 1332.
2
8.
Traffic Jam further alleges that White and Sons breached the
subject contract/acted in bad faith by cancelling the November
2012 special sales event.
Based on the alleged breach/bad faith,
Traffic Jam seeks compensatory damages in the amount of $30,000 for
upfront advertising costs as specified in the subject contract.
See id. at ¶¶ 17-21 (referencing ¶ 3A of the August 4, 2012
contract).3
Traffic Jam also seeks damages in the amount of
$210,000 on allegations that White and Sons breached the following
provision in the subject Contract by employing three people who
were formally employed and/or affiliated with Traffic Jam:
[White and Sons] will make no offer or attempt to retain
or employ any person, firm, or entity employed by,
contracted by, or formally employed by or affiliated with
Traffic Jam during the term of this Agreement and for a
period of 120 days after termination of this agreement.
If [White and Sons] should break this contractual
agreement, [White and Sons] shall pay a fine of $70,000
(seventy thousand dollars) to Traffic Jam.
Id. at ¶¶ 23-28 (referencing ¶ 4A of the subject Contract).
White
and Sons has now moved for summary judgment on the claims alleged
against it in the Amended Complaint.
II.
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides, in
relevant part, that summary judgment “shall be rendered forthwith
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
3
A copy of the August 4, 2012, Client Agreement is
attached as an exhibit to the Amended Complaint.
3
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
R. CIV. P. 56(c).
FED.
The United States Supreme Court has held that
this language “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing to establish the existence of an
element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); see also, Moore v. Mississippi Valley
State Univ., 871 F.2d 545, 549 (5th Cir. 1989); Washington v.
Armstrong World Indus., 839 F.2d 1121, 1122 (5th Cir. 1988).
The party moving for summary judgment bears the initial
responsibility of informing the district court of the basis for its
motion and identifying those portions of the record in the case
which it believes demonstrate the absence of a genuine issue of
material fact.
Celotex, 477 U.S. at 323.
The movant need not,
however, support the motion with materials that negate the opponent’s claim.
Id.
As to issues on which the non-moving party
has the burden of proof at trial, the moving party need only point
to portions of the record that demonstrate an absence of evidence
to support the non-moving party’s claim.
Id. at 323-24.
The non-
moving party must then go beyond the pleadings and designate
“specific facts showing that there is a genuine issue for trial.”
Id. at 324.
4
Summary judgment can be granted only if everything in the
record demonstrates that no genuine issue of material fact exists.
It is improper for the district court to “resolve factual disputes
by weighing conflicting evidence, ... since it is the province of
the jury to assess the probative value of the evidence.”
Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980).
KennettSummary
judgment is also improper where the court merely believes it
unlikely that the non-moving party will prevail at trial. National
Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651 (5th
Cir. 1962).
III.
Discussion
In this civil action, Traffic Jam seeks compensatory and
punitive damages on claims that White and Sons breached the August
of 2012 Client Agreement and/or acted in bad faith with respect to
that agreement. Under Mississippi law, “[t]he elements of a breach
of contract are: (1) the existence of a valid and binding contract;
(2) that the defendant has broken, or breached it; and (3) that the
plaintiff has been thereby damaged monetarily.” Favre Prop. Mgmt.,
LLC v. Cinque Bambini, 863 So.2d 1037, 1044 (Miss. Ct. App. 2004)
(citing Warwick v. Matheney, 603 So.2d 330, 336 (Miss. 1992)).
A
finding of bad faith requires the additional showing of “some
conduct
which
violates
standards
of
decency,
fairness
or
reasonableness.” Cenac v. Murry, 609 So.2d 1257, 1272 (Miss. 1992).
In moving for summary judgment on the contract-related claims,
5
White and Sons argues that the Client Agreement pertaining to the
November 2012 sales event was not valid and, therefore, not binding
on the parties.
there
must
be:
Under Mississippi law, for a contract to be valid,
“(1)
two
or
more
contracting
parties,
(2)
consideration, (3) an agreement that is sufficiently definite, (4)
parties with legal capacity to make a contract, (5) mutual assent,
and (6) no legal prohibition precluding contract formation.” GGNSC
Batesville, LLC v. Johnson, 109 So.3d 562,565 (Miss. 2013). Here,
White and Sons argues that there was no mutual assent because no
agreement had been reached between it and Traffic Jam either before
the subject contract was signed by White on behalf of White and
Sons, or signed by Jeansonne on behalf of Traffic Jam.
In support of its argument that mutual assent was lacking,
White and Sons has submitted an Affidavit from White in which he
avers that he met with Hillyard “who was a representative of
Traffic Jam” on August 6, 2012, to discuss the recently concluded
sale event and to “tie[] up any loose ends that may be necessary.”
See Mot. for Sum. J. [Docket No. 36], Ex. 1.
White also avers that
he and Hillyard discussed:
[C]onducting another sale in November, 2012 and discussed
certain aspects of the sale but did not come to an
agreement.
David Hillyard provided me with a draft
contract which I reviewed and made several corrections
and indicated other areas of the draft document which
would have to be discussed and agreed upon prior to a
sale being conducted.
The issues to be specifically
addressed concerned the number of days that the sale
would last, the advertising budget for the proposed sale,
the percentages to be paid to Traffic Jam Events, LLC,
the methods of calculating the profit from the sale, what
costs were to be included, etc....
David Hillyard
understood that no agreement had been reached to conduct
6
a sale in November, 2012.
See Mot. for Sum. J. [Docket No. 36], Ex. 1.
White and Sons also
submitted an Affidavit from Hillyard in which he avers that he was
an independent contractor for Traffic Jam, and that he met with
White “to finalize any loose ends” from the staffed sales event
that had concluded on August 4th.
Hillyard also avers:
On Monday, August 6, 2012 I met with Keith White and
after we had concluded any business that remained to be
addressed from the sale the previous week, I discussed
with him the possibility of doing a sale at his
dealership in November, 2012. We went over a form
contract that I provided to him and we discussed several
aspects of the sale..
Keith made notations on the
document that I presented to him, indicating some things
that he would require to be changed before reaching an
agreement, and indicating other areas such as the
advertising budget which would have to be negotiated.
Keith did sign the document though both of us understood
that the document was not finalized, that no agreement
had been reached between Traffic Jam Events, LLC on the
part of Traffic Jam Event, LLC and the dealership on his
part, to conduct a staffed event sale at the dealership
in November. Both of us understood that additional terms
and conditions of the agreement would have to be worked
out prior to an agreement being consummated.
Id. at Ex. 2.
In response, Traffic Jam has submitted an affidavit from
Jeansonne who avers that White signed the subject Client Agreement,
“including his handwritten notations therein”, on August 4, 2012.
See Resp. [Docket No. 38], Ex. 1 at ¶ 6.
Jeansonne further avers
that he signed the Client Agreement on August 6, 2012, and that he
had not spoken with White before he signed that Agreement.
¶¶ 7, 9.
Id. at
Traffic Jam argues that, by virtue of Jeansonne’s
signature, it had accepted/assented to the notations made by White
and, therefore, there was a meeting of the minds with respect to
7
the Client Agreement.
Traffic Jam, however, has not presented any
evidence that the notations made by White were counter-proposals to
which White and Sons agreed to be bound.
Instead, according to
White’s and Hillyard’s affidavits, the hand-written notations were
meant to identify areas that either needed to be amended or needed
further discussion/negotiation before an agreement could be reached
by the parties.
Additionally, the Mississippi Supreme Court has explained that
“[t]he question as to whether those who have signed [a contract]
are bound [to its terms] is generally to be determined by the
intention and understanding of the parties at the time of the
execution of the instrument.”
Byrd v. Simmons, 5 So.3d 384, 389
(Miss. 2009)(Turney v. Marion Cnty. Bd. of Educ., 481 So.2d 770,
774 (Miss. 1985)).
Here, the affidavits of White, who was acting
on behalf of White and Sons, and Hillyard, who was working on
behalf
of
Traffic
Jam,
at
the
time
White
signed
the
Client
Agreement clearly demonstrate that the parties understood that no
agreement had been reached by them with respect to conducting a
staffed sales event in November of 2012 at the time the Agreement
was signed by White.
Finally, there is no dispute that the amount
of the advertising budget had not been decided by the parties at
the time that either White or Jeansonne signed the subject Client
Agreement.
As the amount of the advertising budget would be a
material term of the contract, and as this term had not been agreed
upon by the parties, a contract could not have been formed.
e.g.
Hunt
v.
Coker,
741
So.2d
8
1011,
1015
(Miss.
Ct.
See
App.,
1999)(finding that the agreement between the parties failed “to
form
a
contract
because
the
material
terms
[were]
vague
and
indefinite.”).
In sum, while Traffic Jam may have assented to the handwritten notations on the subject Client Agreement, it has not
presented any evidence to show that the hand-written notations were
intended to be counter-proposals or that White and Sons agreed
to/assented to be bound by those notations or any other terms
contained in the Agreement. In addition, Traffic Jam has failed to
show that the subject Client Agreement contained definite material
terms.
As Traffic Jam has not presented any evidence that White
and Sons agreed to or assented to the terms of the Client Agreement
pertaining to the November 2012 sales event, and has not shown that
the material terms of that Agreement are definite in nature, the
Court finds it has failed to show that there exists a genuine issue
of material fact with respect to whether that Agreement would be
valid under Mississippi law.
As there has been no showing of a
valid contract, or a fact issue as to the existence of a valid
contract, the Court finds the breach of contract/bad faith claims
alleged by Traffic Jam fail as a matter of law.
The Motion for
Summary Judgment as to those claims will, therefore, be granted.
IV.
Conclusion
For the foregoing reasons:
IT IS THEREFORE ORDERED that the Motion of Defendant for
Summary Judgment [Docket No. 35] is hereby granted.
9
A Final
Judgment dismissing this case with prejudice shall be entered this
day.
IT IS FURTHER ORDERED that the Motion of Defendant to Dismiss
[Docket No. 33] is hereby denied as moot.
SO ORDERED this the 20th day of June, 2014.
s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE
10
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