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Beech v. FV Wishbone

United States District Court, S.D. Alabama, Southern Division

June 15, 2015

ADAM BEECH, et al., Plaintiffs,
FV WISHBONE, her tackle, furniture, apparel, equipment, and appurtenances, etc., in rem, Defendant

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For Adam Beech, Tenley Warhurst, Plaintiffs: Gregory C. Buffalow , LEAD ATTORNEY, Mobile, AL.

For Kris Leith, Intervenor Plaintiff: Gregory C. Buffalow, Mobile, AL.

For FV WISHBONE, Official No. 995996, Defendant: Craig D. Olmstead, Olmstead & Olmstead, LLC, Gulf Shores, AL; Mark D. Ryan, Samuel K. Wilkes, Bay Minette, AL.

For Skippers Landing, Inc., owner of the F/V Wishbone, in rem, Intervenor Defendant: Craig D. Olmstead, LEAD ATTORNEY, Olmstead & Olmstead, LLC, Gulf Shores, AL; Mark D. Ryan, Bay Minette, AL.

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This matter comes before the Court on defendant's Motion for Summary Judgment (doc. 63). The Motion has been briefed and is now ripe for disposition.[1]

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I. Nature of the Case.

Plaintiffs, Adam Beech, Tenley Warhurst, and Kris Leith, commenced this in rem action on May 29, 2014, to enforce maritime liens against defendant, the fishing vessel F/V WISHBONE, her tackle, furniture, apparel, equipment and appurtenances, etc. (the " Vessel" ). The well-pleaded allegations of the Verified Complaint (doc. 1) filed by Beech and Warhurst, as well as the Verified Complaint in Intervention (doc. 9) subsequently filed by Leith, reflect that plaintiff Beech seeks to recover $25,000 that he claims to be owed for services and supplies provided to the Vessel in May 2013; that plaintiff Warhurst seeks to recover $25,000 that she claims to be owed for services and supplies provided to the Vessel in May 2013; and that intervenor-plaintiff Leith seeks to recover $4,000 that he claims to be owed for services and supplies provided to the Vessel in May 2013. The present owner of the Vessel, non-party Skipper's Landing, Inc., is appearing in this matter for the limited purpose of defending on the Vessel's behalf. Skipper's Landing denies that plaintiffs have valid, enforceable maritime liens for these services and supplies, and further interposes various affirmative defenses.

II. Relevant Background.[2]

A. Ownership History of the Vessel.

Prior to May 2013, the Vessel was owned by non-party B& D Maritime, Inc., which utilized it in connection with activities in the fishing and boat charter industries in Orange Beach, Alabama. (Doc. 63, Exh. 1.) On May 28, 2013, B& D Maritime entered into a " Lease/Agreement to Purchase" with an entity called Davy Jones Fishing Charters, LLC (" Davy Jones LLC" ). ( Id. )[3] By the terms of this Lease/Agreement to Purchase, Davy Jones LLC was to lease the Vessel from B& D

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Maritime through the closing date of September 19, 2013, at which time the purchase would be finalized and title would pass to Davy Jones LLC. The buyer intended to use the Vessel to perform charter fishing operations. The parties to the Agreement acknowledged that, during the lease period, " work to vessel may be performed to 'make ready' for upcoming fishing season." (Doc. 63, Exh. 1.) This lawsuit, and the maritime liens asserted by plaintiffs pursuant to 46 U.S.C. § 31342, arise from certain " make ready" work that plaintiffs allegedly performed for Davy Jones LLC during that lease period.

For reasons not germane to this lawsuit, the contemplated closing as between B& D Maritime and Davy Jones LLC never took place.[4] Instead, B& D Maritime entered into a new Purchase Agreement with Skipper's Landing on October 17, 2013, pursuant to which Skipper's Landing agreed to close on the purchase of the Vessel within 30 days. (Doc. 63, Exh. 2.) Skipper's Landing delivered a sizeable down payment on the date of that Purchase Agreement, and wired the balance of the purchase price two days later, on October 19, 2013. The Bill of Sale for that transaction is dated October 21, 2013. (Doc. 63, Exh. 4, ¶ 37.) From that time through the present, Skipper's Landing has owned and operated the Vessel.

B. Services/Supplies Provided by Plaintiff Beech.

Plaintiff Adam Beech seeks to enforce a maritime lien against the Vessel for work that he characterizes as follows: " We went in and completely renovated the cabin on that boat." (Beech Dep., at 9.) According to Beech, these renovations included removal of seats, walls and ceilings; rebuilding of benches; installation of cabinets, plywood for ceilings, lights, and electrical wiring; and the like. ( Id. ) Beech was hired to perform this work by Gene Warhurst (" Mr. Warhurst" ), a member of Davy Jones LLC. Beech's understanding was that, in exchange for these services, he would not be paid directly, but instead " would have twenty-five thousand dollars interest in the boat," meaning that he would be granted a share interest in the Vessel by virtue of his work and labor. ( Id. at 10-11.) Beech elaborated that his efforts were " an investment in the boat, because it was an ongoing business starting up as a charter business, and I would have a stake of interest in that business." ( Id. at 11.) The parties did not reduce this agreement to writing because Beech " was going through a divorce at the time" and " didn't want to show me having any ownership in the boat or ownership in anything until I got my divorce settled, because it would just be something else I had to fight over." ( Id. at 12.) By the time Beech's divorce proceeding had concluded, in his words, " the boat had vamoosed," so Beech never documented this agreement with Mr. Warhurst. ( Id. at 18.)

Beech's expectation was that the services he provided to renovate the Vessel's cabin were simply an " initial investment" in the fishing charter business and that he

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would " eventually, invest more in it, too. And if the boat continued to do good and make money, then I would begin to draw a percentage of profits out of it." ( Id. at 13.) Beech viewed the supplies and services he provided to the Vessel as " a long-term investment," but also believed that if things went wrong, he could " get some money out of it one way or the other," presumably referring to the maritime lien he now asserts against the Vessel. ( Id. at 14.) Prior to filing suit in this case on May 29, 2014, Beech never claimed or demanded payment from anybody for his work on the Vessel in May 2013, because he understood that " we may get the boat back" and resume the previously described long-term investment plan. ( Id. at 14-15.) Moreover, given Beech's stated " goal" of investing in the Vessel, he " really wasn't worried about keeping up with time and materials" in the course of performing the cabin renovation services. ( Id. at 15-16.) Beech has maintained neither invoices nor other records showing the money and time he expended in performing that work. ( Id. at 17.)

C. Services/Supplies Provided by Plaintiff Warhurst.

Plaintiff Tenley Warhurst (" Warhurst" ) is the wife of Gene Warhurst, who is both a member of Davy Jones LLC and a practicing attorney. (Warhurst Dep., at 9.) On " numerous, numerous times," Warhurst loaned her own money to Mr. Warhurst's law practice (the " Law Practice" ) to avoid the need for Mr. Warhurst's firm to draw on a line of credit. ( Id. at 20, 26-27.)[5] She made these loans to the Law Practice as " general loans," without earmarking them for the Vessel or for any other specific purpose; however, in lieu of demanding reimbursement for certain of those loans, Warhurst authorized the Law Practice to " use that money to go to the boat to be able to buy these supplies to get it started." ( Id. at 26-27.) As Warhurst put it in her deposition, " instead of having to pay that money back to me, I was kind of vested in this boat venture after we got it going." ( Id. at 20.)[6] She further explained as follows: " I agreed that we could take the money that [the Law Practice] owed to me to buy supplies for the [Vessel] in order to get that business up and going as fast as possible to be able to make some money at that business." ( Id. at 92.) Warhurst had recently left a job in the pharmaceutical industry, and wanted to " be able to participate more" in the contemplated charter fishing business of the Vessel, " just being able to run the business" when it became operational. ( Id. at 97.)

Under this system, instead of repaying Warhurst for her loans to the Law Practice, the Law Practice would disburse those funds to Davy Jones LLC as a loan for the latter to use to purchase supplies for the Vessel. ( Id. at 20-21, 25.) Because Warhurst personally " handle[s] the books" and is " in charge of the money" for the Law Practice, she pays herself back for her loans to the Law Practice as and when she deems appropriate. ( Id. at 29.) Warhurst also testified that many items

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she provided to the Vessel " are directly from [her] personal accounts," and that other supplies were funded via means such as (i) rental income checks that she and Mr. Warhurst ordinarily would have deposited in their joint personal accounts, (ii) joint credit card accounts held by Warhurst and Mr. Warhurst, or (iii) a business account for a " little business" owned by Warhurst that " never really did anything." ( Id. at 28, 37, 50, 54, 71-73.) On occasion, Warhurst indicated, she would deposit checks directly into the Davy Jones LLC's account. ( Id. at 75.) However, she was never a member of that entity.

According to Warhurst, among the items she provided the Vessel were " a little robot vacuum that we had at home" that the Law Practice had purchased for $349 in December 2012 ( id. at 31-33), a fishing reel purchased from Academy Sports for $439.99 on May 21, 2013 ( id. at 38-39), a satellite television which was acquired by " an even trade" of Mr. Warhurst's reef permit ( id. at 44-45), an Apple TV device purchased for $100 that the Warhursts " just had ... around" to connect to the Vessel's television to stream music and movies ( id. at 63-64), a " big Yeti cooler" purchased for $1,018.45 ( Id. at 61), another Yeti cooler purchased on June 1, 2013 for $502.14 ( id. at 68-69), a Green Egg grill purchased for $624.24 ( id. at 81), and two Shimano fishing rods valued at $300 that the Warhursts had previously maintained at their residence ( id. at 86-87). Warhurst also identified numerous other line items as payments for Vessel-related supplies or repairs; however, she was unable to specify precisely how those funds were allocated. With respect to the Yeti ...

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