Circle, LLC v. M&L Engine, L.L.C.

CIRCLE, LLC                               *       NO. 2022-CA-0381

VERSUS                                    *
                                                  COURT OF APPEAL
M&L ENGINE, L.L.C.                        *
                                                  FOURTH CIRCUIT
                                          *
                                                  STATE OF LOUISIANA
                                    *******



                               APPEAL FROM
                  25TH JDC, PARISH OF PLAQUEMINES
                          NO. 65-999, DIVISION “B”
                    Honorable Michael D. Clement, Judge
                                  ******
                            Judge Dale N. Atkins
                                  ******
(Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge Pro
Tempore James F. McKay, III)

LOVE, C.J., DISSENTS AND ASSIGNS REASONS

Charles A. Cerise, Jr.
Jeffrey Edward Richardson
James T. Rogers, III
William K. Wright, IV
Luke G. LaHaye
ADAMS AND REESE LLP
701 Poydras Street, Suite 4500
One Shell Square
New Orleans, LA 70139

      COUNSEL FOR APPELLANTS, Circle, LLC, and Michael Wolfe

Daniel M. Redmann
DUPLASS, ZWAIN, BOURGEOIS, PFISTER, WEINSTOCK & BOGART
3838 N. Causeway Boulevard, Suite 2900
Metairie, LA 70002

      COUNSEL FOR APPELLEE, M&L Engine, LLC



                                                                 AFFIRMED
                                                            December 19, 2022
DNA
JFM


      This is a contract matter. Appellants, Circle, LLC (“Circle”), and Michael

Wolfe (“Mr. Wolfe”), appeal the trial court’s April 18, 2022 judgment, which

granted the Motion for Summary Judgment filed by M&L Engine, LLC (“M&L”).

For the following reasons, we affirm.

                          FACTUAL BACKGROUND

      Circle contracted with Lafourche Parish to perform drainage work, which

included the installation of pumps. Thereafter, M&L issued quote number

LP021319 to Circle on February 13, 2019, for the drainage project and titled the

quote “Industrial Park Floodwall Phase II – T-Bois Pump Station – Larose,

Louisiana.” The quote pertained to the provision of equipment, including two

#4836 Lo-Lift 48” Water Lubricated Propeller Pumps, as well as “start[-]up

services, lube and delivery to the job site.” Regarding payment, the quote called for

“20% down; Net on delivery—or—Net 30 days with open account.” Further, the

quote provided for delivery 12-14 weeks after receipt of the order. Circle executed

a purchase order on May 29, 2019, in response to the quote from M&L. On June 7,

2019, Circle directly deposited twenty percent of the purchase as down payment to

M&L. The parties do not dispute that by these actions they formed a contract.



                                         1
      Thereafter, on September 18, 2019, M&L notified Circle that Lo-Lift, the

manufacturer of the pumps, had experienced a problem, thereby resulting in a

potential three-week delay for delivery of the pumps. M&L ultimately delivered

one of the pumps on October 11, 2019, and sent Circle an invoice for the amount

still due on November 12, 2019. Subsequently, M&L delivered the second pump

on December 5, 2019.

      Circle failed to pay the balance, and M&L emailed Circle on January 23,

2020, notifying that M&L would stop its attendant work on the pumps until Circle

paid the balance of the account. Circle requested a meeting, which occurred on

January 27, 2020. Present at the meeting were Mr. Wolfe, Circle’s president; Troy

Foret (“Mr. Foret”), Circle’s project manager; Justin Baudoin (“Mr. Baudoin”),

M&L’s sales manager; and Ryan Marmande (“Mr. Marmande”), Mr. Baudoin’s

boss. The parties dispute what happened during the meeting. Circle contends that

Mr. Wolfe and Mr. Foret discussed the costs that Circle had incurred due to the

delay in the delivery of the pumps, including the costs of keeping its equipment on

site longer than anticipated and the damage to Circle’s business with Lafourche

Parish. Further, Circle asserts that Mr. Wolfe and Mr. Foret explained that Circle

was still waiting to receive its payment from Lafourche Parish. Circle alleges that

Mr. Baudoin and Mr. Marmande agreed at that meeting that Circle would pay all

of the amount due on the account except for $35,000, which Circle would hold

toward any costs that Circle incurred from the delay. M&L, however, disputes that

they came to such an agreement.

      On January 28, 2020, Circle paid M&L $131,525 and then paid M&L

$40,526 on February 28, 2020, thereby leaving a balance on the account of

$35,000. On March 2, 2020, Mr. Foret emailed Mr. Baudoin, asking if M&L had

                                        2
received payment. Mr. Baudoin replied the next day that M&L had received the

payment but that the payment was not the full amount due on the account; and he

advised Mr. Foret that the remainder was due. In response, Mr. Foret stated that he

believed that at the January 27, 2020 meeting, M&L agreed that the remainder

would be held until the matter of the delay costs had been settled. The next day,

Mr. Baudoin replied that M&L was suspending all work until full payment was

made on the account. M&L then filed a lien on March 10, 2020.

      On March 25, 2020, Mr. Foret emailed Mr. Baudoin again concerning issues

with a pump, stating that the problem should be under warranty and asking if M&L

could send someone to look at it. Mr. Baudoin reiterated that M&L would perform

no further work until the balance was paid. Circle eventually contracted with other

companies to complete the project.

                             PROCEDURAL HISTORY

      On April 7, 2020, Circle filed a Petition for Damages (“Petition”) against

M&L, seeking damages allegedly caused by the delay in the delivery and set up of

the pumps. In response, on June 29, 2020, M&L filed an answer and a

reconventional demand against Circle; and M&L filed a third-party demand

against Mr. Wolfe and Lo-Lift. M&L also filed a Motion for Summary Judgment

against Circle and Mr. Wolfe on August 20, 2021. Therein, M&L asserted that “the

uncontested facts and applicable law show that M&L is entitled to judgment

against [Circle] and [Mr. Wolfe], in solido, in the amount of $35,000.00, plus

services charges of $525.00 per month from the date the account was over thirty

days past due . . . .” On December 2, 2021, the trial court denied M&L’s Motion




                                        3
for Summary Judgment, citing La. R.S. 9:2781(A)1 in the reasons for judgment and

stating that “M&L did not submit an affidavit of correctness of account showing

the current amount owed nor was there an affidavit attesting to the authenticity of

the quote or the invoice. In other words, M&L failed to present a prima facie case .

. . .”

         On February 24, 2022, M&L filed a second Motion for Summary Judgment

setting forth documentation of the amount it claimed Circle owed on the account

and referring to its prior motion for summary judgment. Circle and Mr. Wolfe filed

their opposition to the motion on March 21, and M&L replied on March 29. On

April 18, 2022, the trial court conducted a hearing and granted M&L’s Motion for

Summary Judgment. This appeal by Circle and Mr. Wolfe (collectively,

“Appellants”) timely follows.2

                              ASSIGNMENTS OF ERROR

         Appellants assert two assignments of error:

         1.     A party that has breached a contract cannot recover from
         another party for breach of that contract. The trial court erred in
         awarding summary judgment to M&L based on M&L’s contract with
         Circle because M&L itself breached the contract in multiple ways.

         2.    The trial court erred in awarding summary judgment to M&L
         based on its claim that Circle owed $35,000 (plus attorney fees and
         service charges) because there is a genuine dispute of fact on whether
         the parties agreed—on January 27, 2020—that Circle does not yet
         owe $35,000 and may never owe it.

Before analyzing the merits of the parties’ arguments, we turn to the principles

applicable to the summary judgment procedure.


         1   Louisiana Revised Statutes 9:2781 pertains to open accounts.
         2We note that Circle’s and Mr. Wolfe’s claims against M&L for any
damages occasioned by the delays are currently pending before the trial court, with
trial set for January 17, 2023.

                                             4
                                   DISCUSSION

SUMMARY JUDGMENT PRINCIPLES

      “The summary judgment procedure is designed to secure the just, speedy,

and inexpensive determination of every action . . . .” La. C.C.P. art. 966(A)(2). It

“is favored and shall be construed to accomplish these ends.” Id. See Citron v.

Gentilly Carnival Club, Inc., 2014-1096, p. 10 (La. App. 4 Cir. 4/15/15), 

. “After an opportunity for adequate discovery, a motion for summary

judgment shall be granted if the motion, memorandum, and supporting documents

show that there is no genuine issue as to material fact and that the mover is entitled

to judgment as a matter of law.” La. C.C.P. art. 966(A)(3).

      “An appellate court applies the de novo standard of review in examining the

trial court’s ruling on a motion for summary judgment and utilizes ‘the same

criteria that govern the trial court’s determination of whether summary judgment is

appropriate.’” Jones v. Boot Bar & Grill, C. Napco, Inc., 2022-0154, p. 12 (La.

App. 4 Cir. 10/05/22), ___ So.3d ___, ___, 

, at *5 (quoting

Knox v. Elite Prot. Sols. & Willie’s Chicken Shack, LLC, 2021-0419, p. 9 (La. App.

4 Cir. 10/13/21), ___ So.3d ___, ___, 

, at *4). Accordingly,

“appellate courts ask the same questions the trial court does in determining

whether summary judgment is appropriate: whether there is any genuine issue of

material fact, and whether the mover is entitled to judgment as a matter of law.” 

(quoting Hood v. Cotter, 2008-0215, 0237, p. 9 (La. 12/2/08), 

).

      On a motion for summary judgment, “[t]he burden of proof rests with the

mover.” La. C.C.P. art. 966(D)(1). “The party seeking summary judgment has the

burden of proving there is no genuine issue of material fact.” Jones, 2022-0154, p.

12, ___ So.3d at ___, 

, at *6 (citing Suire v. Lafayette City-Par.

                                          5
Consol. Gov’t, 2004-1459, 1460, 1466, pp. 26-27 (La. 4/12/05), 

).

Thereafter, “[i]f the movant satisfies the initial burden, the burden shifts to the

party opposing summary judgment to present factual support sufficient to show he

will be able to satisfy the evidentiary burden at trial.” Id. at pp. 12-13, ___ So.3d

at ___, 

, at *6. See also La. High Sch. Athletics Ass’n, Inc. v.

State, 2012-1471, p. 18 (La. 1/29/13), 

.

      “However, if the mover will not bear the burden of proof at trial on the issue

that is before the court on the motion for summary judgment, the mover’s burden

on the motion does not require him to negate all essential elements of the adverse

party’s claim, action, or defense, but rather to point out to the court the absence of

factual support for one or more elements essential to the adverse party’s claim,

action, or defense.” Jones, 2022-0154, p. 13, ___ So.3d at ___, 

,

at *6 (quoting Knox, 2021-0419, p. 9, ___ So.3d at ___, 

, at *5).

Only after the motion has been made and properly supported does the burden shift

from the mover to the adverse party. 

 Subsequently, “the adverse party [must]

produce factual support sufficient to establish the existence of a genuine issue of

material fact or that the mover is not entitled to judgment as a matter of law.” La.

C.C.P. art. 966(D)(1). “The adverse party may not rely on mere allegations or

denials to defeat a motion for summary judgment but must provide specific facts

showing that a genuine issue remains for trial, and failure to do so will result in the

rendering of the summary judgment.” Jones, 2022-0154, p. 13, ___ So.3d at ___,

, at *6 (citing La. C.C.P. art. 967(B)). Any supporting or

opposing affidavits filed in connection with a motion for summary judgment must

be based upon the affiant’s personal knowledge. La. C.P.P. art. 967(A). “‘If the

adverse party fails to provide factual evidence sufficient to establish that he will be

                                          6
able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of

material fact’ and summary judgment is appropriate.” Jones, 2022-0154, p. 13, ___

So.3d at ___, 

, at *6 (quoting Knox, 2021-0419, pp. 9-10, ___

So.3d at ___, 

, at *5).

      In considering a motion for summary judgment, the trial court cannot make

credibility determinations but must construe reasonable factual inferences in favor

of the party opposing the motion, resolving all doubt in favor of the opponent. Id.

at p. 14, ___ So.3d at ___, 

, at *6 (citing Citron, 2014-1096, p.

12, 

).

      “A genuine issue is a triable issue.” 

 (quoting Knox, 2021-0419, p. 10, ___

So.3d at ___, 

, at *5). “More precisely, an issue is genuine if

reasonable persons could disagree.” 

 “However, ‘if on the state of the evidence,

reasonable persons could reach only one conclusion, there is no need for a trial on

that issue.’” 

 “A fact is material when its existence or non-existence may be

essential to the plaintiff’s cause of action under the applicable theory of recovery.”

 “Facts are material if they potentially insure or preclude recovery, affect a

litigant’s ultimate success, or determine the outcome of the legal dispute.” 

“Because it is the applicable substantive law that determines materiality, whether a

particular fact in dispute is material can be seen only in light of substantive law

applicable to the case.” 

 We now apply these principles in our review of

Appellants’ assignments of error.

ASSIGNMENT OF ERROR NUMBER 1

      In their first assignment of error, Appellants contend that the trial court erred

in granting M&L’s Motion for Summary Judgment because M&L breached the

contract in two ways and thus cannot recover from it. First, Appellants assert that

                                          7
M&L breached the contract by failing to deliver the pumps in a timely manner. In

particular, Appellants state that the terms of the contract specified that delivery of

the pumps would be twelve to fourteen weeks after receipt of the order but that

neither pump was delivered by this deadline. Second, Appellants assert that M&L

breached the contract by failing to perform service on the pumps. They contend

that the contract also called for M&L to provide services for the pumps, yet M&L

ceased all work on the pumps when Circle failed to pay the remaining balance. In

sum, Appellants argue that M&L’s actions breached the contract and that the

breach precludes M&L from collecting the balance of the amount due under the

contract.

      In opposition, M&L admits that Circle is entitled to compensation for any

damages caused by the delay but maintains that its untimeliness was not a breach

of the contract, which would allow Circle to avoid payment of the balance of the

account. To this end, M&L asserts that “a delayed performance is treated

differently than nonperformance” and that “[t]he law does not allow one to escape

an obligation to pay for a thing delivered late, when that same thing is accepted by

the buyer.” Regarding Circle’s contention that M&L breached the contract by

failing to perform services on the pumps, M&L argues that “[t]he contract terms

make payment due upon delivery of the equipment-not upon certain services being

provided whenever the buyer gets around to installing the equipment.”

Delayed Delivery of Pumps

      We begin by agreeing with Appellants that the contract promised delivery

within twelve to fourteen weeks after receipt of the order and that M&L did not

deliver either pump by this deadline. Specifically, Circle placed its order on May

29, 2019, but M&L did not deliver the first pump until October 14, 2019, and the

                                          8
second pump until December 5, 2019. However, we find that the determining issue

is whether M&L’s late delivery of the pumps constituted a breach of the contract,

which thereby allowed Circle to withhold the remainder of the balance without

itself breaching the contract, or if the late delivery merely entitled Circle to delay

damages.

      Louisiana Civil Code Article 1994 provides that “[a]n obligor is liable for

the damages caused by his failure to perform a conventional obligation.” It further

states that “[a] failure to perform results from nonperformance, defective

performance, or delay in performance.” Regarding damages associated with

delayed performance, La. C.C. art. 1989 provides that “[d]amages for delay in the

performance of an obligation are owed from the time the obligor is put in default.”

It also states that “[o]ther damages are owed from the time the obligor has failed to

perform.” As the plain language of the article evidences, La. C.C.P. art. 1989

differentiates between damages for an outright failure to perform and for delayed

performance, noting that the latter is associated with a default, not a breach.

Indeed, Comment (b) to La. C.C.P. art. 1989 states that “[m]oratory damages[3]

presuppose a performance actually rendered, although delayed. In such a case, the

object of the obligee’s recovery is compensation for the injury his interest has

sustained because of the obligor’s untimeliness in performing. Compensatory

damages presuppose, instead, total or partial nonperformance, or defective

performance by the obligor. See 2 Litvinoff, Obligations 387 (1975).”

      Additionally, we note that Section 1.12 of the Louisiana Civil Law Treatise

provides that “[t]he distinction between absolute and relative failure to perform


      3Section 1.13 of the Louisiana Civil Law Treatise explains that “moratory . .
. means, precisely, damages for delay.”

                                          9
serves as one of the criteria for determining the damages that the obligee may

recover in one and the other case.” Further, Section 1.12 of the Louisiana Civil

Law Treatise (footnotes omitted) discusses delayed performance and moratory

damages:

      [D]elay is a relative failure to perform on the part of an obligor.
      Rather than final, or definitive, it is a sort of temporary
      nonperformance with respect to the time element of the obligation that
      can be cured by the obligor through subsequent rendering of
      performance plus reparation of the damage that his tardiness may have
      caused to the obligee. The damages that an obligee may recover in
      such a case are called moratory . . . . Moratory damages thus
      presuppose a performance actually rendered, although delayed.

Addressing the “other damages” language of La. C.C. art. 1989, Section 1.14 of the

Louisiana Civil Law Treatise defines these damages as ones that are caused by

something other than delay, such as an “absolute failure to perform;” where

performance is no longer possible or of value; or where there is “a relative failure

to perform” that does not involve the time of the performance of the obligation but

rather the quality of the performance. It further provides that damages for failures

other than delay “are called compensatory because they are intended to compensate

the obligee for a performance that he will not receive, or will not receive in full.”

      We observe that La. C.C.P. art. 1989, comment (b), further states:

      Nevertheless, some damages which an obligee may sustain as a result
      of the untimely satisfaction of his expectations, though grounded on
      the passage of time, are compensatory rather th[a]n moratory. Thus, if
      an obligor abandons the construction of a building and the obligee
      must secure completion by another, it is clear that the obligee, besides
      other items of recovery, is entitled to recover damages sustained by
      reason of any delay thus caused, such as rent paid for another
      building. In that case, the damages for the delay should be regarded as
      compensatory rather than moratory.

However, we find this portion of the comment inapplicable to the matter sub

judice. Though Circle contends that it eventually paid other companies to complete


                                          10
the subject project, this occurred after M&L delivered the pumps and Circle

refused to pay the remaining $35,000 per the contract.4 In this regard, we find

instructive the case of Murphy v. Southern Mineral & Land Improvement Co., 

, 

 (La. 1912), the facts of which are similar to those herein

presented. Therein, the Louisiana Supreme Court explained:

      The case presented is one where neither party complied with the
      stipulations of the contract. The defendant found it impracticable to
      get stone from the quarry in sufficient quantities to make deliveries
      within the specified time. . . . [T]he defendant continued to make
      shipments until the whole quantity was delivered. Plaintiff refused to
      make the stipulated payments to defendant, and paid only $1,000 out
      of a total of $7,580.21, earned by the defendant under the contract.

      It is well settled that a party cannot claim damages for the
      nonperformance of a contract as to which he himself is in default.
      Silverman v. Caddo Gas & Oil Co., 

, 

. That
      was a suit to recover damages for an alleged breach of a contract to
      deliver 100,000 barrels of oil, and it appeared that the plaintiff refused
      to pay the defendant for a part of the oil delivered under the contract.

      The court, inter alia, said:

             ‘To recover damages the plaintiff must begin by showing
             that he has complied with the terms of the contract.’

Murphy, 

, 

. Here, Appellants have failed to demonstrate

compliance with the contract because Circle never paid the remaining $35,000 to

M&L for delivery of the pumps per the terms of the contract.

      Considering the language of La. C.C. art. 1989 and comment (b), the Civil

Law Treatise, and Murphy, we find that M&L’s late delivery of the pumps was not

a breach of the contract because M&L ultimately, though untimely, fulfilled its

obligation under the contract to deliver the pumps. By the terms of the contract, at


      4  We note that the extra costs Circle allegedly expended to pay other
companies were included in Circle’s Petition and will be the subject of the
upcoming trial before the trial court. These damages are not before this Court in
this appeal.

                                         11
that point, Circle was obligated to pay the balance of the account, and it could

separately seek any moratory damages that it sustained by M&L’s late delivery.

Circle’s obligation to pay arose with M&L’s December 5, 2019 delivery of the

second pump, after which Circle’s failure to pay per the terms of the contract

constituted non-performance by Circle. Thus, the late delivery of the pumps was

not a breach of the contract that relieved Circle from paying the balance of the

account. Rather, the untimely delivery of the pumps constituted a delayed

performance thereby entitling Circle to moratory damages, which are the subject of

the upcoming January 17, 2023 trial.

Failure to Perform Services

      As noted, Appellants further argue that M&L breached the contract because

it failed to perform the services listed in the contract. The contract included “start[-

]up services, lube and delivery to job site.” Appellants argue that when M&L

ceased its work on the project in January 2020, M&L breached the contract by not

providing the services required by the contract. Thus, Appellants conclude that

they were not obligated to pay the balance of the contract. However, by the terms

of the contract, Circle had thirty days to pay the balance upon delivery of the

second pump, not upon completion of the services. By the time Circle requested

services from M&L, Circle itself was in default of the contract for non-payment

because M&L had already delivered the second pump. See Murphy, 

,

. Just as Circle was not obligated to pay the remainder of the balance

until the second pump was delivered, M&L was not obligated to complete the

services when Circle failed to make timely payment on the account.




                                          12
      In sum, we conclude that this assignment of error is without merit. M&L did

not breach the contract by the untimely delivery of the pumps or by ceasing service

when Circle failed to pay the balance of its account.

ASSIGNMENT OF ERROR NUMBER 2

      In their second assignment of error, Appellants assert that the trial court

erred in granting M&L’s second Motion for Summary Judgment because there is a

genuine issue of material fact about whether the parties agreed on January 27,

2020, that Circle did not owe $35,000. Specifically, Appellants refer to the alleged

oral amendment to the payment terms of the contract that they insist M&L agreed

to at the January 27, 2020 meeting between Mr. Wolfe and Mr. Foret from Circle

and Mr. Baudoin and Mr. Marmande from M&L. As noted previously, M&L

denies that the parties confected any such agreement.

      Louisiana Civil Code Article 1831 provides, in pertinent part, that “[a] party

who asserts that an obligation . . . has been modified . . . must prove the facts or

acts giving rise to the . . . modification . . . .” Additionally, La. C.C. art. 1846

requires that a contract in excess of $500 “must be proved by at least one witness

and other corroborating circumstances.” In Guiterrez v. Moezzi, this Court set forth

the standard for the proof of a non-written amendment: “A party to a lawsuit may

serve as his own credible witness for the purpose of satisfying [La. C.C. art. 1846],

and, although the party must show other circumstances which corroborate his

claim, only general corroboration is required, not independent proof of every detail

of his testimony.” 2006-1395, p. 9 (La. App. 4 Cir. 4/11/07), 

.

See also Duvio v. Specialty Pools Co., 2015-0423, p. 10 (La. App 4 Cir. 6/6/16),

 (wherein this Court held that the corroborating circumstances




                                         13
must come from a source other than the person asserting that the change occurred

(citing Suire, 2004-1459, 1460, 1466, p. 29 (La. 4/12/05), 

)).

      For example, in First Bank and Trust v. Treme, First Bank and Trust (“First

Bank”) filed a petition for executory process against Warren G. Treme (“Mr.

Treme”) to collect amounts allegedly due on a promissory note. 2013-168, p. 2

(La. App. 5 Cir. 10/30/13), 

. In response, and in pertinent part,

the defendant filed a third-party demand against the chairman of the bank, Joseph

C. Canizaro (“Mr. Canizaro”). Id. at p. 3, 

. In the third-party

demand, the defendant alleged that he had entered into a joint venture with First

Bank to build a banking branch in Kenner, Louisiana, but that Mr. Canizaro used

his position as chairman of the bank to interfere with the purchase of the property,

thereby breaching his fiduciary duty. Id. at pp. 3-4, 

. First Bank

and Mr. Canizaro filed a motion for partial summary judgment, requesting, in part,

that the trial court dismiss Mr. Treme’s breach of fiduciary duty claim against Mr.

Canizaro because Mr. Treme failed to put forth any evidence of a joint venture

relationship or any fiduciary duties between any of the parties. Id. at pp. 4-5, 

. At the hearing on the motion for partial summary judgment, Mr.

Treme submitted his own deposition testimony stating that he had a joint venture

agreement with First Bank to build a branch in Kenner and that Mr. Canizaro

interfered with that contract. Id. at p 10, 

. Additionally, Mr. Treme

submitted an affidavit of a First Bank Employee, Clark Heebe (“Mr. Heebe”). 

The trial court granted the motion for partial summary judgment, finding “an

absence of evidence of a joint venture agreement between Mr. Treme and [First]

Bank to build a branch on the alleged site.” Id. at p. 5, 

. In




                                         14
interpreting La. C.C. art. 1846, the Louisiana Fifth Circuit Court of Appeal

affirmed, explaining:

             After our de novo review of the partial summary judgment and
      the evidence submitted, we do not find that Mr. Treme submitted
      sufficient evidence to prove the existence of a joint venture agreement
      between him and the Bank. Although Mr. Treme offered his own
      testimony regarding the alleged joint venture agreement, the
      submission of Mr. Heebe’s affidavit as corroborating evidence is
      insufficient. Mr. Heebe’s affidavit does not state that he had any
      personal knowledge of a joint venture between Mr. Treme and the
      Bank. The affidavit simply states that Mr. Heebe “understood from
      Treme that Treme had agreed to find suitable property” in Kenner to
      build a branch for the Bank. Mr. Heebe’s affidavit is also void of any
      information of how Mr. Treme and the Bank would conduct the
      venture for joint profit or the level of control for each party. Without
      any further corroborating circumstance, Mr. Treme failed to meet the
      burden of proving an oral contract over $500.00. Because Mr. Treme
      failed to prove the existence of a joint venture between him and the
      Bank, there is no need for this Court to address whether Mr. Canizaro
      intentionally interfered with that contract.

Id. at p. 12, 

.

      As noted previously, this Court must conduct a de novo review to decide if

there is a genuine issue of a fact whose “existence or non-existence may be

essential to” Appellants’ cause of action and one that could “potentially insure or

preclude recovery, affect [Appellants’] ultimate success, or determine the outcome

of the legal dispute.” Jones, 2022-0154, p. 14, ___ So.3d at ___, 

, at *6 (quoting Knox, 2021-0419, p. 10, ___ So.3d at ___, 

, at *5). Appellants argue that they have shown sufficient, independent

corroborating circumstances to provide a genuine issue of material fact as to the

existence of the alleged January 27, 2020 agreement to modify the payment terms

of the contract. In support, they point to a portion of Mr. Baudoin’s deposition

testimony, wherein he admitted that the parties met on January 27, 2020. Further,

Appellants cite the email exchanges between Mr. Baudoin and Mr. Foret wherein


                                        15
Mr. Foret “confirmed” the alleged January 27, 2020 agreement and Mr. Baudoin

did not disagree with Mr. Foret’s statements. Yet, a review of the emails reveals

that Mr. Baudoin himself did not refer to the January 27, 2020 meeting or alleged

agreement. Rather, he merely replied that M&L would perform no further work

because the remaining balance was still due. Additionally, Appellants also observe

that in Mr. Baudoin’s deposition he did not deny that the January 27, 2020 meeting

happened. However, Mr. Baudoin responded that he only recalled Circle’s

representatives mentioning equipment costs due to the late delivery at the meeting.

Thus, Mr. Baudoin’s testimony did not negate or corroborate the alleged

agreement’s existence.

      Appellants next point to an affidavit by Mr. Marmande, which M&L

submitted in support of its second Motion for Summary Judgment. In the affidavit,

Mr. Marmande, stated:      “According to M&L’s records, Circle, LLC[,] made

payments on the Exhibit A invoice in the amount of $131,525.00 on 1/28/20 and

$40,526.00 on 2/28/20.” Appellants assert that this supports their position because

it matches the payment schedule allegedly agreed upon by the parties at the

January 27, 2020 meeting. Without additional information though, this fails to

demonstrate that the parties agreed that Circle would withhold $35,000 after

making the January 28 and February 28 payments.

      Therefore, we disagree with Appellants that this evidence constituted

independent corroborating circumstances sufficient to raise a genuine issue of

material fact as to the existence of the alleged January 27, 2020 agreement. Given

this lack of independent “corroborating circumstances,” we conclude that the trial

court did not err in finding the lack of a genuine issue of material fact that would

preclude the granting of M&L’s motion for summary judgment.

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      Based upon our de novo review, we find that M&L did not breach the

contract by its untimely delivery of the pumps or by ceasing services when Circle

failed to pay the balance of its account. Further, we find that Appellants failed to

provide “factual evidence sufficient to establish that they will be able to satisfy

[their] evidentiary burden of proof at trial” regarding the alleged January 27, 2020

agreement. Jones, pp. 12-13, ___ So.3d at ___, 

, at *6.

                                    DECREE

      For the foregoing reasons, we affirm the trial court’s April 18, 2022

judgment, which granted M&L’s second Motion for Summary Judgment.

                                                                      AFFIRMED




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