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Ulmer v. Tracker Marine, LLC

Court of Appeals of Mississippi

January 6, 2015

LEE W. ULMER, APPELLANT
v.
TRACKER MARINE, LLC D/B/A TRACKER MARINE GROUP D/B/A TRAVIS BOATING CENTER, MAKO MARINE INTERNATIONAL, INC. AND TRAVIS BOATING CENTER MISSISSIPPI, LLC, APPELLEES

DATE OF JUDGMENT: 09/25/2013.

COURT fro WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. KATHY KING JACKSON. TRIAL COURT DISPOSITION: APPELLANT'S MOTION DENIED AND ORDER TO ENFORCE SETTLEMENT ISSUED.

FOR APPELLANT: ELMER LOUIS FONDREN JR.

FOR APPELLEES: JAMES J. MCNAMARA IV, RICHARD JARRAD GARNER, G. ROBERT PARROTT II.

BEFORE GRIFFIS, P.J., BARNES AND ISHEE, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

OPINION

Page 78

NATURE OF THE CASE: CIVIL - CONTRACT

BARNES, J.

¶1. In August 2004, Lee Ulmer purchased a 2004 Fishmaster boat with a Suzuki 225 horsepower motor, along with a Mako Marine boat trailer, from Travis Boating Center Mississippi LLC (Travis Boating), an agent of Tracker Marine LLC. After some problems with the boat, Ulmer filed a complaint on August 30, 2007, against Tracker Marine LLC, Mako International Inc., and Travis Boating (Appellees), alleging breach of contract and negligence. He later amended his complaint to include a claim that Appellees had misrepresented and intentionally concealed that the boat was not manufactured by Mako, but instead by Kenner.

¶2. Tracker Marine eventually offered to replace the boat with an updated and more expensive model, a 2012 Mako 234 fishing boat. The parties agreed to a settlement on July 27, 2011, the terms of which included Ulmer's receiving the replacement 2012 Mako boat and trailer and $5,000 in attorney's fees. In exchange, Ulmer agreed to sign a mutual release and dismiss the case with prejudice. On July l5, 2012, Ulmer filed a motion requesting that the circuit court set a date for delivery of the replacement boat/trailer package and payment of attorney's fees.

¶3. On August 16, 2012, Ulmer was notified that his replacement boat was ready. Per the terms of the agreement, he and his designated expert were allowed to inspect the boat and take it for a test drive, which they did on three occasions before Ulmer took possession of the boat on October 30, 2012. The Appellees expressed their willingness to remit the $5,000 in attorney's fees once Ulmer signed the mutual release and settlement agreement. However, Ulmer refused to sign the release. On March 14, 2013, Ulmer filed a motion to enforce a fair settlement, claiming that the replacement boat had a manufacturing defect -- the hull on the port side measured higher than the starboard side.

¶4. On July 24, 2013, the Appellees filed their response to Ulmer's motion, requesting that the circuit court deny the motion and enforce the July 27, 2011 settlement. After a hearing, the circuit court entered

Page 79

an order to enforce the 2011 settlement, concluding that the Appellees had " met their obligations under the settlement." The circuit court ordered Ulmer to execute a release within ten days, which would allow Appellees to tender a check for Ulmer's attorney's fees. The Appellees were ...


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