Boss Lady Adventures, LLC v. Portier Fabrication, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BOSS LADY ADVENTURES, LLC CIVIL ACTION NO. 2:22-cv-00170 L (2)

VERSUS JUDGE ELDON E. FALLON

PORTIER FABRICATION, LLC: MAG. DONNA PHILLIPS CURRAULT

ROBBIE PORTIER; AND ASHLEY C.

PORTIER

ORDER AND REASONS

Before the Court is Defendant Portier Fabrication, LLC’s motion to dismiss due to

improper venue, R. Doc. 56. After considering the motion, opposition, and parties’ testimony at

oral argument, the Court now rules as follows.

I BACKGROUND

Boss Lady Adventures, LLC (“Boss Lady”), a company domiciled in Florida, approached

Portier Fabrication, LLC (“Portier Fabrication’), a company domiciled in Louisiana, to discuss the

possibility of Portier Fabrication constructing a vessel for Boss Lady. R. Doc. 1 at 1-3. On July

23, 2017, Boss Lady entered into a contract with Portier Fabrication for Portier Fabrication to

construct a 78-foot steel fishing vessel to be named “Boss Lady” for a quoted price of $410,000.

Id. at 3. Boss Lady claims to have entered into this contract with the understanding, as represented

by Defendant Robbie Portier, that he and his business had over 40 years of experience building

vessels of the kind desired by Boss Lady. /d.

On March 6, 2019, the parties entered into a “Phase 2 Agreement” defining the parties’

obligations in the second phase of the vessel’s construction. /d. at 3-4. Pursuant to the Phase 2

Agreement, the parties shifted from a fixed price to a time and materials contract. Jd. According

to Boss Lady, disputes arose over delays and type of work performed by Portier and on May 25,

2020, Boss Lady issued a cease-and-desist notice to Portier Fabrication instructing Portier to cease

all work on the vessel until the parties could resolve the disputes that had arisen. Id. at 4.

Apparently, the parties could not resolve their disputes and on February 1, 2021, Boss Lady

informed Portier Fabrication that it intended to take possession of the vessel and have it inspected

for deficiencies and completed by a third-party. Id. The record shows that after a period of

negotiation, the parties entered into an agreement termed the “Vessel Construction Separation

Agreement” (the “Separation Agreement” or “Agreement”), which was signed by Boss Lady’s

representative on October 8, 2020, and by Portier Fabrication’s representative on October 12,

2020. R. Doc. 12 at 5–11. The Separation Agreement laid out the terms of the dissolution of the

parties’ relationship and transfer of the incomplete vessel from Portier Fabrication to Boss Lady.

Id. Ultimately, on February 3, 2021, Portier Fabrication issued a Bill of Sale and Builder’s

Certificate and transferred the vessel to Boss Lady. R. Doc. 1 at 4.

After taking possession, Boss Lady contracted with a third-party boat builder who

inspected the vessel and identified numerous problems in its construction. Id. The third-party boat

builder identified the following deficiencies and defects in the work allegedly performed by Portier

Fabrication:

a. The vessel’s hull foam had been improperly installed, for which Plaintiff paid Portier

Fabrication $18,000, requiring its removal and reinstallation;

b. The vessel’s hull had been improperly rust-treated, requiring its re-treatment and

repainting;

c. The main fuel tanks failed a pressure test due to insufficient baffle installation and serious

issues in the vessel’s structural integrity;

d. Subsequent repairs to the fuel tanks requiring corresponding removal and repair of the

deck;

e. Improper welds on the hull’s structure which needed to be redone;

f. Floor grates were improperly installed so as to prevent their removal for access to below-

deck spaces. This required their removal, re-welding, and reinstallation;

g. The vessel’s engine, which Portier Fabrication claimed was fully installed and billed

Boss Lady accordingly in the amount of $36,000, was not in fact installed at all. Rather, it

was merely placed inside the hull. This required extensive cutting, welding, reinstallation

and reconfiguration of major structural components of the hull;

h. Portier Fabrication likewise billed Boss Lady $15,000 to install the vessel’s generator,

but did not in fact do so. Rather, the generator was merely placed inside the vessel with

no subsequent installation work;

i. The vessel’s swim platform was not properly welded, requiring subsequent sandblasting,

corrective welding, and painting;

j. The vessel’s manhole covers failed pressure testing, requiring subsequent repairs;

k. The vessel’s rudder room steering components were improperly installed, requiring

subsequent repairs and reconfiguration of the rudder room’s jockey bar;

l. There were structural integrity issues identified throughout the vessel’s upper, main, and

lower deck ceilings and the upper deck’s walkway; requiring the removal of large

portions of the vessel’s wooden floor boards to install reinforcing structural steel with the

additional design input of a naval architect;

m. The vessel’s salon room’s stripping, for which Boss Lady paid Portier Fabrication

$13,000, was incorrectly installed, requiring its total replacement;

n. The vessel was transferred to Boss Lady upon termination of the parties’ contract in need

of a total exterior paint job;

o. All steel fasteners in the vessel’s floors, ceilings, and walls were improperly installed,

requiring their total replacement; and

p. The fuel, water, and oil tanks installed on the vessel deviated from Boss Lady’s

specifications and were smaller than those required to operate the vessel in the manner

specified by Boss Lady, requiring their replacement.

Id. at 5-6.

Upon learning of these deficiencies, Boss Lady began contracting with other third parties

to correct the deficiencies. Id. at 6. Boss Lady claims over $75,000 in damages based on the cost

of obtaining services to repair the vessel as well as direct losses from Portier Fabrication’s

performance under the Builder Contract and Phase 2 Agreement. Id. at 7. Boss Lady further claims

that Portier Fabrication billed them for actions in constructing the vessel that were done improperly

and thus have to be repaired or re-installed, and that Portier Fabrications fabricated time sheets,

work orders, and invoices for incomplete work or work actually completed on unrelated vessels.

Id.

Boss Lady filed the instant suit in January 2022 in the U.S. District Court for the Eastern

District of Louisiana on the basis of diversity jurisdiction. Accordingly, Boss Lady claims that

Portier Fabrication is liable for breach of contract, breach of warranty of workmanlike

performance, unjust enrichment, intentional misrepresentation, redhibition, fraud, and violation of

the Louisiana Unfair Trade Practices and Consumer Protection Act. Id. at 8-14. Boss Lady further

claims that Ashley Portier and Robbie Portier are liable for intentional misrepresentation and fraud.

Id. at 15-16.

II. EARLIER MOTION

On February 16, 2022, before discovery began, Defendants filed a motion to dismiss

pursuant to Rule 12(b)(3), arguing lack of venue. R. Doc. 12. In that motion, Defendants argued

that the forum selection clause in the Separation Agreement between the parties requires Plaintiff’s

claims to be brought in the 32nd Judicial District Court of Terrebonne Parish, Louisiana. They

argued that under the terms of the Separation Agreement, that agreement supersedes any previous

agreement between the parties; thus, the forum selection clause applies to Boss Lady’s claims even

though the original Builder Contract between the parties contained no forum selection clause. Boss

Lady filed its response on March 8, 2022. R. Doc. 14. Boss Lady argued that (1) the parties did

not consent to the Separation Agreement despite having signed it; (2) if they did consent, that

consent is vitiate by fraud; (3) if the Separation Agreement is binding, the forum selection clause

still does not govern here because Plaintiff’s claims do not “arise under” that contract.

In view of an apparent disagreement on the discussions surrounding their negotiations, the

Court denied that motion to dismiss without prejudice to Defendants’ right to re-urge the motion

after more discovery is conducted. R. Doc. 18. In its Order and Reasons, the Court noted that it

lacked “enough information on the negotiations and intentions of the parties to decide the issue of

whether the Separation Agreement constitutes a valid contract between the parties under Louisiana

law.” Id. The parties engaged in discovery which was completed on June 26, 2023.

III. PRESENT MOTION

Defendants filed the instant motion on June 30, 2023. This motion, like the earlier one,

argues for dismissal for lack of venue. Defendants’ argument remains essentially the same as

before, that the parties had mutual consent and a meeting of the minds as to the Separation

Agreement and thus the forum selection clause governs this dispute. Defendants bolster their

arguments with information learned during discovery, specifically relying on the Declaration of

Stephen Hanemann and corresponding Exhibits, Declaration of Ashley Portier, and Deposition of

Donill Kenney. R. Doc. 56-2 - R. Doc 56-9.

Plaintiff responded on July 11, 2023 with their Memorandum in Opposition, arguing that

multiple items of evidence demonstrate the parties did not reach an agreement despite their signing

of the Agreement. R. Doc. 59. Plaintiff specifically calls attention to depositions and email

exchanges between Plaintiff’s former counsel, Jeffrey Cox and Defendants’ former counsel

Stephen Hanemann, to show the parties knew after the signing date that the Separation Agreement

did not represent a meeting of the minds.

The Court heard oral argument on this motion on August 9, 2023 wherein the parties put

on live testimony from Stephen Hanemann, Ashley Portier, and Jeffrey Cox.

IV. LEGAL STANDARD

a. Rule 12(b)(3)

In considering a Rule 12(b)(3) motion, “the plaintiff has the burden of proving that the

chosen venue was proper.” Broussard v. First Tower Loan, LLC, 135 F. Supp. 3d 540, 544 (E.D.

La. 2015). However, courts accept “a plaintiff’s well-pleaded factual allegations as true and [draw]

all reasonable inferences in plaintiff’s favor[,]” Asevedo v. NBC Universal Media, LLC, 921 F.

Supp. 2d 573, 589 (E.D. La. 2/4/13) (citing Langton v. Cbeyond Cmmc’n, LLC, 282 F.Supp 2d

504, 508 (E.D. Tex 2003)), and “must draw all reasonable inferences and resolve all factual

conflicts in favor of the plaintiff.” Centurum Info. Tech. Inc. v. Geocent, LLC, No. CV 21-0082,

2021 WL 533707, at *3 (E.D. La. Feb. 12, 2021). Accordingly, “the court accepts uncontroverted

facts alleged in the complaint as true and resolves conflicts in the parties’ affidavits in favor of the

plaintiff.” Asevedo, 135 F. Supp. 3d at 590 (quoting McCaskey v. Cont’l Airlines, Inc., 133 F.

Supp. 2d 514, 523 (S.D. Tex. 2001)).

b. Forum Selection Clauses

Forum selection clauses are presumed enforceable and “where a litigant in federal court

attempts to have a case dismissed based on a contractual provision requiring suit to be filed in state

court, the forum-selection clause should be upheld unless the party opposing its enforcement can

show that the clause is unreasonable.” Ginter ex rel. Ballard v. Belcher, Prendergast & Laporte,

536 F.3d 439, 441 (5th Cir. 2008) (citing Haynsworth v. The Corp., 121 F.3d 956, 961 (5th Cir.

1997)). Examples of unreasonableness include when the provision is “overreaching” and “when

its enforcement would ‘contravene a strong public policy of the forum state.” Id. (quoting

Haynsworth, 121 F.3d at 963). It is also unreasonable when the inclusion of the provision in the

contract is “the product of fraud.” Haynsworth, 121 F.3d at 963.

c. Contract Formation

When evaluating contract formation, Louisiana law requires four elements be satisfied: 1)

the parties have capacity to contract, 2) they freely give mutual consent, 3) they have cause or

reason to obligate themselves, and 4) the contract has a lawful purpose. Ingraffia v. NME

Hospitals, Inc., 943 F.2d 561, 565 (5th Cir. 1991). When demonstrating mutual consent, courts

look for “a mutual understanding of facts and of subject matter” and that the agreement “afford[s]

a complete expression of this meeting of the minds, and leave[s] no material element unexpressed.

. . . [T]he result must be a complete obligation.” Thompson v. State Farm Ins. Co., 145 F. Supp.

473, 483 (W.D. La. 1956) (citing Jones v. Janes, 101 So. 116, 117 (La. 1924)).

That parties sign an agreement is not alone determinative as to mutual consent when there

is evidence that a party to the contract clearly negates the consent. Ingraffia, 943 F.3d at 566. For

example, in Ingraffia v. NME Hospitals, Inc., the Fifth Circuit held a contract signed by both

parties was invalid for lack of mutual consent because the second-signing party attached a

proposed amendment and a statement of his superior stating the unamended language was

unacceptable. Id. That case involved a physician’s service contract with a hospital. The court found

that while the physician “might have thought that the signed document containing his version of

the agreement would be legally sufficient to protect him if a conflict arose[,] [h]e could not,

however, have believed that the parties mutually consented to the terms of that document because

when he received the document, he also received and read a clear statement negating such

consent.” Id. The court thus found “no meeting of the minds between the parties on the contract”

even though both parties had physically signed the document. Id.

d. Mistake

A contract may be invalid if the parties’ make a mistake that negates consent. The

Restatement (Second) of Contracts defines mistake as “an erroneous belief,” including “[a]n

erroneous belief as to the contents or effect of a writing that expresses the agreement.”

RESTATEMENT (SECOND) OF CONTRACTS, § 151(a) (AM. L. INST. 1981). (emphasis added). Mistake

may be mutual, such as when “a mistake [is] shared by both parties to the instrument at the time

of reducing their agreement to writing, and . . . the contract has been written in terms which violate

the understanding of both parties; that is, if it appears that both have done what neither intended.”

Fireman’s Fund Ins. Co. v. Bulliard Farm, Inc., 915 So. 2d 1014, 1017 (La. App. 3 Cir. 11/2/05)

(quoting Teche Realty & Inv. v. Morrow, 673 So. 2d 1145, 1147 (La. App. 3 Cir. 4/17/96). If a

court finds mutual mistake occurred, it may rescind the contract and thus find it unenforceable.

See Semco, LLC v. Grand Ltd., 221 So. 3d 1004, 1030 (La. App. 5 Cir. 5/31/17).

Unilateral mistake, on the other hand, “standing alone does not vitiate” a contract. See Mid-

South Towing Co. v. Har-Win, Inc., 733 F.2d 386, 387, 392 (5th Cir. 1984) (describing how

misrepresentation by one party may affect the analysis). In Mid-South Towing Co. v. Har-Win Inc.,

one party sought to escape a settlement agreement arguing, among other things, that had its counsel

known of additional surveys at the time of signing, he would not have approved the settlement. Id.

at 391. The Fifth Circuit, affirming the Eastern District of Louisiana’s finding, found this error to

be “at most, a unilateral mistake” and held that “a unilateral mistake of fact is not a basis for

avoidance of a settlement agreement” and in doing so specifically noted that there was “no claim

that either Mid-South or American Employers’ concealed these other surveys or misrepresented

their contents.” Id. at 391-92. Absent such misrepresentation or fraud, a unilateral mistake will

not be grounds to avoid a contract. Id.

V. DISCUSSION

At the hearing held on August 9, 2023, Mr. Hanemann, Defendant's attorney, testified that

the Separation Agreement went through several iterations. In an earlier version, Paragraph 3

included the following sentence:

Following the execution of the Protocol of Delivery and Acceptance, Builder shall

have no liability to Owner in any respect, and Builder shall have no further

obligations to Owner save that of the warranty of clear title to the Vessel.

R. Doc. 56-4 at 3. In subsequent versions, Paragraph 3 did not contain this provision. The parties

went back and forth on this issue. In any event, the final version did not include this last sentence

regarding waiving future claims. Thus, the potential for future claims remained.

Mr. Hanemann testified that he showed the final version of the agreement to Mrs. Portier,

a proprietor of the shipyard, and explained it to her pointing out that the final version did not

contain the provision waiving future claims. He was convinced she understood it and agreed to it.

She signed the final version of the agreement and Mr. Hanemann sent it to the Plaintiff's counsel.

Ms. Portier testified she understood the final version and was aware that it did not contain the

release of future claims language. In fact, she talked with her husband, the co-owner of the

shipyard, and he said, in effect, that it did not matter because if the defendant wanted to sue them

he would do it regardless of any waiver. In this regard in answer to the following questions she

testified as follows:

Q: Prior to signing it [referring to the final version of the agreement] did you

discuss it with your husband?

A: Yes.

Q: Were you aware that some of the language of previous drafts had been taken

out?

A: Yes.

Q: And you were okay with that?

A: Yes. Rob [her husband] and I had a particular question and I said they removed

this section in particular, talks about future litigation. He says if he wants to sue

us, he's going to sue us anyway. He said let's get rid of the boat and sign it.

Transcript of Oral Argument (Tr.) at 61:19-62:5. Her attorney, Mr. Hanemann, confirmed this

understanding when he testified as follows:

Q: I understand was your conversation with Ashley after that e-mail?

A: Yes.

Q: Okay.

A: But it didn’t effect - - I mean it did not impact Portier Fabrication’s

understanding that they had signed and entered a final agreement.

Q: Okay. And did they understand at that time that Boss Lady still retained the right

to pursue claims against them?

A: I am certain they did but they will have to tell you what they understood.

Q: Did you advise your clients of that fact?

A: I advised my clients that the language that eliminated the possibility of a future

lawsuit had been removed from the agreement and they knew that and agreed to it

when they signed it.

Tr. 37:18 – 38:9

In any event, the evidence indicates that shortly after signing the agreement Ms. Portier

had second thoughts, so called "buyer’s remorse," and wished she had not signed the agreement

on those terms. She called her attorney and asked him to call Plaintiff's counsel and try to change

the agreement to include the future claims waiver. In this regard, she testified as follows:

Q: Okay. At some point later, did you have a telephone call with Mr. Hanemann?

A: Yes.

Q: Okay. What was the nature of that call, did you call him or did he call you?

A: I'm sure I called him. I think we just talked about because in that – in the final

agreement it said something about adding amendments so we talked about changing

some things and it was more than one thing, I don't remember what it was in

particular and then we started getting back e-mails saying they're pursuing litigation

and all of these different claims that they're making and I don't know what he

discussed but that was our discussion.

Tr. 64:2-64:15. This caused Mr. Hanemann to call Plaintiff's counsel to carry out Defendant's

request. Defendant's counsel testified that his intent was to try to amend the contract and not

negate it. On the other hand, Plaintiff's counsel, Mr. Cox concluded that Ms. Portier was claiming

she executed the contract by mistake and wanted to continue to negotiate. Regarding this effort to

carry out Ms. Portier’s request and communicate this to Mr. Cox, Mr. Hanemann testified as

follows:

Q: So it’s - - can you explain to me what it was that you were negotiating in October

15, 2020, if you had already reached a final and fully executed agreement?

A: Sure. We talked I think before or in conjunction with this agreement at least

once before and I said look, my clients want to revisit this. They accept it the way

it is but they want to make sure they’re not going to get sued and then he [Mr. Cox]

mentioned very specifically well, look, we really can’t do that because our clients

are kind of contemplating this counterclaim and they want to pursue it and they

might need to flesh that out. So that changed. You need to understand the nature of

these negotiations. That changed the entire tenor of what was happening here. The

agreement was done. Okay? . . . [T]o make it better in the context of someone just

saying for the first time they might bring an accounting claim, it’s worth the effort

to try and alter that agreement.

Tr. 41:15 – 42:19.

The issue central to Portier Fabrication’s motion is whether the parties reached consent as

to the Final Agreement such that the forum selection clause contained therein applies to this action.

In Ingraffia, the Fifth Circuit invalidated a contract for lack of consent, notwithstanding the fact

that it had been signed by all parties. Ingraffia, 943 F.3d at 566. There, the court explained,

although all parties had signed the contract, correspondence between them indicated that one party

to the contract intended for a yet-unsigned amendment that it attached to the signed contract to be

approved as a prerequisite for its consent. Id. at 565-566. Because that party had sent the signed

contract along with a letter stating that an included revision was unacceptable and needed to be

replaced with a new amendment attached to the contract, the other party was on notice that mutual

consent had not occurred between them. Notwithstanding the fact that the contract was fully

signed, “there was no meeting of the minds. Both parties realized they did not agree.” Id. at 566.

Boss Lady argues that the same applies in this case. It points to the phone call its counsel

received later the same day that Ashley Portier signed the Final Agreement, where Portier

Fabrication’s counsel explained that Ashley signed an incorrect version of the Agreement. See R.

Doc. 59-1 at 2, ¶ 6. (Portier’s counsel disputes this claim. Tr. 52:23 – 53:5 (“But I’ve since seen

the pleadings filed in this case that it has been offered by him and perhaps will be offered by him

and his testimony that I said words that would intimate that my client signed something in error or

signed the wrong draft. I certainly know I did not say that. I did not use the word error in that

conversation and I did not say wrong agreement.”)) Boss Lady also points to emails exchanged

between the parties after both parties signed the Separation Agreement and claims that this

correspondence demonstrates that mutual consent had not occurred, and that both parties realized

this despite having the signed Separation Agreement.

However, Ms. Portier testified under oath that when she called Mr. Hanemann on the

evening of October 12, 2020, she did not tell him that she mistakenly signed an incorrect version

of the contract. She described to the Court that she knew exactly what she was signing and that

she asked her attorney that evening only about the process for amending the Agreement, which the

Agreement expressly permitted. The Court found her testimony credible.

Further, the Court notes an important distinguishing factor between the facts at bar and

Ingraffia. Here, Ms. Portier did not return the signature page contemporaneously with a note or

amendment or other notice that the absence of a future claims waiver was unacceptable, thereby

alerting Boss Lady that mutual consent had not been achieved as to the signed document. Instead,

several hours later, she explored with her attorney how to amend the Agreement. Notwithstanding

the differing recollections of counsel as to the purpose of these after-signing negotiations, Ms.

Portier remained steadfast as to her intent to sign the Agreement as it was. Boss Lady may urge

that this may be considered a unilateral mistake on the part of Ms. Portier, but her testimony

negates this understanding of events. While Ms. Portier may have changed her mind after signing

and upon learning about the potential imminence of future litigation, like the attorney in Mid-South

Towing Co. who would not have signed that settlement had he known of additional surveys, this

does not constitute mistake. Even if it had been a unilateral mistake, the law is clear that unilateral

mistake will not be enough to void a contract absent some evidence of fraud or misrepresentation

on the part of Boss Lady, evidence of which is absent in this case. See Mid-South Towing Co., 733

F.2d at 392.

After considering the evidence, it is clear to the Court that after signing the final agreement

Ms. Portier had second thoughts and reached the conclusion that she had made a mistake in signing

the agreement without the provision waiving future claims. But at the time she signed the final

agreement, she understood that it did not contain this provision and made the decision to sign it

anyway, assuming the risk of future claims. The final agreement is a valid contract. The fact that

she changed her mind after signing the agreement cannot retroactively negate it or make it invalid.

Paragraph 18 of the Separation Agreement contained a forum selection clause which

designates the 32nd Judicial District Court of Terrebonne Parish, Louisiana and provides as

follows:

This Agreement and all transactions contemplated by this Agreement shall be

governed by, and construed and enforced in accordance with, the laws of the State

of Louisiana, excluding the conflicts of laws principles thereof. The venue of any

action arising from this Agreement shall lie exclusively in the 32nd Judicial District

Court of Terrebonne Parish, Louisiana, and the Parties shall submit to the

jurisdiction of such court.

R. Doc. 12-2 at 6. The case law is clear that a forum selection clause is presumed enforceable

unless a party can show it was unreasonable (by virtue of fraud, public policy, or otherwise). Here,

no such showing has been made.

Paragraph 19 of the Separation Agreement also includes a provision stating that this

Agreement “constitutes the entire agreement between the Parties and supersedes any prior

agreement or understanding between them, oral or written, on the subject matter.” Id. Accordingly,

Boss Lady’s contention that its claims do not arise under this Agreement are unavailing.

For the foregoing reasons, the final agreement is valid and forum selection clause therein

governs this suit, and the Court GRANTS Defendants’ motion to dismiss, without prejudice, so

that the matter can proceed in the state forum selected by the parties.

New Orleans, Louisiana, this 14th day of August, 2023.

United States District Judge

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