Court: Louisiana Court of Appeal; March 27, 1991; Louisiana; State Appellate Court
Blue Streak Marine, Inc. appeals a trial court ruling that found it liable to Aries Marine Corporation and Atlantic International, LTD. for $33,671.69 in commissions under a joint venture agreement, dismissed Blue Streak’s counterclaims, and required it to pay court costs. The joint venture, formed on October 22, 1986, was established to market lift boats and manage job assignments among the parties. Blue Streak voluntarily withdrew from the agreement on February 25, 1987, but had not compensated the joint venture for work referrals received prior to its withdrawal. ILB sought to recover unpaid commissions, while Blue Streak counterclaimed for the return of its capital contributions and profits.
After a trial, the court ruled in favor of ILB for the full commission amount and dismissed Blue Streak's claims. Blue Streak contended that commissions were not earned until payment was received from users, arguing that ILB could not prove all invoices were paid, and claimed ILB was aware of unpaid invoices. The trial court interpreted the billing method as an open account, concluding commissions were earned upon invoice submission. However, the appellate court disagreed, interpreting the joint venture agreement as containing an “earned when paid” clause, meaning commissions were contingent upon payment to the owner/operator by the user. Thus, commissions were only considered earned once the owner/operator received payment. Citing Civil Code Article 1767, the court noted that the uncertainty surrounding commission earnings qualified as a suspensive condition, and Blue Streak was required to demonstrate its claimed losses with reasonable certainty, referencing the case of Hart v. McDonald.
The Supreme Court denied McDonald’s judgment due to insufficient proof of loss, placing the burden of proof on Blue Streak, which failed to demonstrate non-payment by users. Consequently, Blue Streak is obligated to pay commissions to the joint venture. Blue Streak contends the trial court erred in dismissing its claim for reimbursement of $3,988.78 for telephone equipment purchased for the joint venture, arguing an outstanding balance of $2,298.63 remains. ILB counters that the equipment was owned by the joint venture as per paragraph V(c) of their agreement, which stipulates that contributors of physical assets retain ownership and are compensated by the joint venture. The evidence indicates ILB believed the equipment was specifically for its use and that Blue Streak never held ownership. The trial court’s dismissal of Blue Streak’s demands for capital return and joint venture interest upon withdrawal was upheld, as paragraph VII(b) states that capital contributions are only returned if profits are distributed, which did not occur upon Blue Streak's exit. Additionally, paragraph X requires joint venturers to waive rights to undistributed profits or losses upon voluntary withdrawal, which Blue Streak did. Blue Streak also sought compensation for costs incurred during the appeal process related to appraisal and conveyance certificates ordered by ILB. The court’s prior ruling deemed ILB responsible for certain costs but confirmed that the appraisal and conveyance certificate were adequate, affirming the order for a hearing to reassess the matter.
The second supervisory writ challenged the trial court’s determination that previously mortgaged property was insufficient to secure a bond. The court granted the relator’s writ, finding the property adequate. Under La.C.C.P. article 1920, when a judgment does not specify costs, the losing party must pay them. Consequently, ILB is responsible for the costs of the first appeal totaling $1,961.00 and both writs amounting to $122.00. The district court did not abuse its discretion in requiring Blue Streak to incur $350.00 to prove the sufficiency of its suspensive appeal bond. The trial court's judgment holding Blue Streak liable for unpaid commissions of $33,671.69 is affirmed, and Blue Streak cannot offset this with its capital contribution or withdrawal share value. The ruling dismissing Blue Streak’s reconventional demand for reimbursement of telephone equipment is reversed, awarding Blue Streak $2,298.63 for the outstanding balance. Additionally, the trial court's decision requiring ILB to cover Blue Streak’s appeal costs of $1,961.00 and the two civil writs totaling $122.00 is reversed, while Blue Streak must still pay the $350.00 for the appraisal and conveyance certificate. All awards will accrue legal interest from the date of judicial demand. The decision is affirmed in part and reversed in part.
