Desonier v. Golden Gulf Marine Operators, Inc.

474 So. 2d 1314, 1985 La. App. LEXIS 9544
CourtLouisiana Court of Appeal
DecidedJune 3, 1985
DocketNo. 85-CA-51
StatusPublished
Cited by2 cases

This text of 474 So. 2d 1314 (Desonier v. Golden Gulf Marine Operators, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Desonier v. Golden Gulf Marine Operators, Inc., 474 So. 2d 1314, 1985 La. App. LEXIS 9544 (La. Ct. App. 1985).

Opinion

BOUTALL, Judge.

This is a suit for breach of contract by a terminated employee against the employer and the personal guarantors of the employment agreement. From a decision in favor of the employee, one of the guarantors appeals.

All the principals in the suit are involved in the offshore oil and gas marine business. The employment contract was executed on August 5, 1981, when Boson — JMJ Marine Corporation, later renamed Golden Gulf Marine Operators, Inc., hired Richard Deso-nier as its president. The recently formed company was organized to operate vessels which service rigs and other offshore work sites. The boats were owned by several partnerships which the Golden Gulf principals, together with outside investors, had formed for that purpose. Richard Desonier had been employed in the oil industry for more than twenty years and left the position of senior vice-president of .Gulf Fleet Marine, the second largest marine company in the world, to move to Golden Gulf.

The employment contract, negotiated by both parties with legal counsel, was for a term of five years at an annual salary of $100,000, plus an immediate bonus of $45,-000, plus a guaranteed annual bonus of $100,000, disability, life and health insurance, stock options, and certain other benefits. The three owners of Golden Gulf, J. Michael Jones, D.E. Bowman, and H. Cameron Thompson, signed the following personal guarantee:

In order to induce Employee to enter into this Agreement, the undersigned, binding themselves jointly, severally and insólido with the Company and among themselves, hereby unconditionally, irrevocably and absolutely guarantee to Employee prompt and complete payment and performance of all obligations of the Company under this Agreement; provided, however, the guaranty herein granted shall cease and terminate when the Employee has received compensation as provided under Section 5 of this Agreement and disability insurance pursuant to Section 10 of this Agreement in the aggregate amount of $1,000,000.00.

Golden Gulf did not prosper and by the spring of 1982 the marine transportation industry itself was in a severe decline. The company was experiencing cash flow problems and in June and July proposed to Desonier that he take a reduction in pay, which he refused to do. On July 30, 1982, he was terminated.

Desonier filed suit on August 12, 1982, against the company and the guarantors in solido to recover salary, bonuses, insurance coverage, and other benefits due for the balance of the five year term of the contract, a total of $1,030,000.00. Golden Gulf filed for protection under Chapter 11 of the Bankruptcy Code, but the automatic stay was lifted on December 8, 1982, and the plaintiff was authorized to proceed against the company. Before trial, Bowman and Thompson settled for $300,000.00 each, for which Desonier released them from their solidary obligation. The trustee in bankruptcy for Golden Gulf did not defend the suit.

On December 1, 1983, the trial judge rendered judgment in favor of Desonier and against Golden Gulf in the amount of $1,106,066.67 and J. Michael Jones in the amount of $368,651.99 (one-third of the total judgment), plus interest and costs.

The issues before this court are:

1) whether the contract was void because of an error of fact;

[1316]*13162) whether the defendant assumed the risk of a fortuitous event;

3) whether the company had good cause to discharge Desonier and, if so, whether it waived the right to discharge him by condoning his actions;

4) whether the award should include bonuses and insurance premium payments; and

5) whether the judgment should be reduced by any monies earned or to be earned during the balance of the contract. ERROR

We first address the issue of whether or not the contract was void for lack of consent because of mutual mistake. The facts in this case arose before the repeal of Civil Code Book III, Title IV;1 consequently all references are to the unrevised articles. The appellant relies upon the error of fact which vitiates consent and is sufficient to invalidate the contract. LSA-C.C. arts. 1819, 1821, and 1823.2 In this case, the error of fact is the parties’ belief that the demand for vessels would continue, which relates to the principal causes of the contract, i.e., for the company to hire Desonier to find employment for the vessels and for Desonier to receive $1,000,000.00. Neither party had any inkling at the time of the signing of Desonier’s contract and even after he became president that a downturn in the petroleum marine transportation industry would occur within a year.

The appellee correctly points out that for an error of fact to vitiate a contract the error must pertain to a condition existing at the time of confection of the contract. In a recent article, Professor George L. Bilbe relates the common law concept of “mistaken assumption” to the Louisiana Civil Code’s concept of error as to principle cause, and says:

“... Generally, mistaken assumption is used in describing a situation in which contracting parties mutually understand every provision they have made express but one or more are mistaken as to circumstances existing at the time their agreement is made ...”

44 La.L.Rev. 825 (1984), at 825.

Our case deals with erroneous assumptions as to future business conditions. We disagree with the appellant’s reliance upon Walker v. Don Coleman Const. Co. Inc., 338 So.2d 1183 (La.App. 2nd Cir.1976), in which the court allowed rescission of a contract to sell land on the basis of LSA-C.C. art. 1825, error as to motive. Unknown to the parties, governmental approval of the purchaser’s planned use of the property would necessitate a long delay in building a subdivision. Governmental approval was a condition written into the contract and timely performance was held to be a principal cause of the contract. Both causes were frustrated by events over which the parties had no control.

In the case before us there was no contractual agreement to pay Desonier only if business was good. There was no error as to his qualifications or the services he was to perform. His failure to live up to the other parties’ expectations in dealing with a slow market does not constitute error as contemplated by the code.

[1317]*1317FORTUITOUS EVENT

The appellants also view the market collapse as a fortuitous event which will exonerate the debtor from performing a contract under LSA-C.C. art. 1933(2).

A fortuitous event is defined by LSA-C.C. art. 3556(15) as “that which happens by a cause we cannot resist.” Louisiana courts have held that economic declines are events that make performance economically unfeasible but not impossible in the sense intended by art. 1933(2). Marionneaux v. Smith, 163 So. 206 (La.App. 1st Cir.1935). We agree with the trial judge that in any business venture the undertaker assumes the risk that circumstances beyond his control may cause the venture to fail. There is no guarantee to the entrepreneur that the general business climate will continue to exist.

DISCHARGE FOR CAUSE

Under LSA-C.C. art.

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Related

Andrepont v. Lake Charles Harbor & Terminal District
586 So. 2d 722 (Louisiana Court of Appeal, 1991)
Desonier v. Golden Gulf Marine Operators, Inc.
476 So. 2d 336 (Supreme Court of Louisiana, 1985)

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Bluebook (online)
474 So. 2d 1314, 1985 La. App. LEXIS 9544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/desonier-v-golden-gulf-marine-operators-inc-lactapp-1985.