     Case: 15-30928      Document: 00513452585         Page: 1    Date Filed: 04/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30928                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                             April 5, 2016
ALEBAMON MARINE SERVICES, L.L.C.,                                          Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

OCEAN MARINE CONTRACTORS SCRAP DIVISION, L.L.C.,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-2453


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       This action arises from a disputed oral modification of a credit sales
agreement between Alebamon Marine Services, LLC (“Alebamon”) and Ocean
Marine Contractors Scrap Division, LLC (“OMC”). The trial judge found the
evidence and witness testimony to be favorable to Alebamon and we affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-30928     Document: 00513452585      Page: 2     Date Filed: 04/05/2016



                                  No. 15-30928
      We review the factual findings from a bench trial for clear error and the
legal issues de novo, giving “due regard … to the opportunity of the trial court
to judge of the credibility of the witnesses.” Canal Barge Co., Inc. v. Torco Oil
Co., 220 F.3d 370, 375 (5th Cir. 2000); Fed. R. Civ. P. 52(a)(6) (“[f]indings of
fact, whether based on oral or other evidence, must not be set aside unless
clearly erroneous, and the reviewing court must give due regard to the trial
court’s opportunity to judge the witnesses’ credibility.”).
      The terms of the original sales agreement provided that Alebamon would
sell certain supply vessels to OMC for two installment payments totaling
$1,674,722.00. OMC made two payments, but was short $300,000.00. The
parties modified the agreement without a writing, establishing terms for OMC
to pay the $300,000.00 balance.      However, the parties dispute the terms.
Alebamon asserts that OMC agreed to pay the outstanding balance within 90
days, with 12% interest, increasing to 18% if the balance was not paid after 90
days. OMC contends that the modification amounted to a loan by Alebamon,
thus requiring express authority for OMC’s Chief Financial Officer, Hoby
Dillon, to enter into such loan. Confusingly, OMC also asserts that there was
no loan, but insists instead that the oral agreement allowed OMC to defer the
final payment until OMC could scrap the vessels.
      The trial court determined that the modification was not a loan, but
indeed a credit sale, and the court did not believe that Alebamon had agreed
to defer OMC’s outstanding balance until the vessels were scrapped.
Accordingly, and within his discretion, the trial judge found the modified
agreement to be as Alebamon asserted, but appropriately corrected the
calculation of interest in the amended judgment.         OMC has presented no
evidence of clear error to justify disturbing this ruling.
      AFFIRMED.


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