IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-20055

Summary Calendar

P & O PORTS TEXAS INC

Plaintiff-Appellee

v.

A/S IVARAN REDERI; IVARANS REDERI ASA; IVARAN LINES AS

Defendants-Appellants

Appeal from the United States District Court for the Southern District of Texas No. H-99-CV-234

October 21, 2002

Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Defendants-Appellants A/S Ivaran Rederi, n/k/a Ivarans

Rederi ASA and Ivaran Lines AS appeal the district court's grant

of summary judgment in favor of Plaintiff-Appellee P&O Ports,

Texas, Inc. on its breach of contract claim and the district

court's denial of Rederi's and Ivaran Lines's motion to amend

that judgment. For the following reasons, we REVERSE and REMAND.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-30026 -2-

I. FACTUAL AND PROCEDURAL HISTORY

A/S Ivaran Rederi, n/k/a Ivarans Rederi ASA ("Rederi")1 is a

Norwegian shipping company. On May 1, 1997, the Rederi Board of

Directors formed a separate entity, Ivaran Lines AS ("Ivaran

Lines"), to oversee "all liner activities." From 1996 to 1998,

P&O Ports, Texas, Inc. ("P&O Ports"), p/k/a Fairway Terminal

Corporation ("Fairway"), provided stevedoring services to Rederi

and Ivaran Lines. P&O Ports submitted several written demands

for payment to Rederi and Ivaran Lines for these services.

According to P&O Ports, the total amount owed was $421,702.29,

plus interest.2 No payments were made, so P&O Ports filed suit

against Rederi for breach of contract.

P&O Ports's original complaint named Rederi as the only

defendant. P&O Ports then moved for summary judgment against

Rederi. Rederi responded with a defense of mistaken identity,

insisting that only Ivaran Lines owed the debt. The district

court denied the summary judgment motion pending against Rederi

and allowed P&O Ports to amend its complaint to add Ivaran Lines

as a defendant.

P&O Ports filed an amended motion for summary judgment, in

1 The parties agree that A/S Ivaran Rederi and Ivarans Rederi ASA are the same entity. 2 Rederi and Ivaran Lines have made payments to P&O Ports on this debt since the filing of this lawsuit, so the parties now agree that the total amount outstanding is $186,236.30, plus interest. No. 02-30026 -3-

which it requested judgment against Ivaran Lines and incorporated

by reference its earlier motion for summary judgment against

Rederi. The district court granted this motion and entered

judgment against Rederi and Ivaran Lines for the full amount due.

The district court found that P&O Ports established its prima

facie case for breach of contract and that Rederi and Ivaran

Lines did not demonstrate a genuine issue of material fact for

trial.

Rederi and Ivaran Lines then filed a Rule 59(e) motion

requesting that the district court alter or amend its judgment,

arguing that only Ivaran Lines is liable for the debt. The

district court determined that the motion was not filed within

ten days of the judgment and thus treated it as a Rule 60(b)

motion for relief from the judgment. The district court denied

the motion, finding that P&O Ports properly moved for summary

judgment against both Rederi and Ivaran Lines and that P&O Ports

provided sufficient summary judgment evidence to show both

parties were liable for the debt.

Rederi and Ivaran Lines now appeal. They argue that: (1)

the district court erred in granting summary judgment in favor of

P&O Ports against Rederi because Rederi was not properly named in

the amended summary judgment motion and because there was a

genuine issue of material fact as to Rederi's contractual

liability, and (2) the district court erred in treating the Rule No. 02-30026 -4-

59(e) motion as a Rule 60(b) motion and in denying that motion.

II. STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo,

applying the same standards as the district court. Daniels v.

City of Arlington,

(5th Cir.), cert. denied,

(2001). Summary judgment should be granted if

there is no genuine issue of material fact for trial and the

moving party is entitled to judgment as a matter of law. FED. R.

CIV. P. 56(c).

A genuine issue of material fact exists when there is

evidence sufficient for a rational trier of fact to find for the

non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp.,

(1986). In determining if there is a

genuine issue of material fact, the court reviews the evidence in

the light most favorable to the non-moving party. Daniels,

.

Dispositions of Rule 59(e) and Rule 60(b) motions are

reviewed for an abuse of discretion. E.g., Provident Life &

Accident Ins. Co. v. Goel,

(5th Cir. 2001)

(Rule 60(b)); King v. Ames,

(5th Cir. 1999)

(Rule 59(e)). Under the abuse of discretion standard, a district

court's determination need only be reasonable. E.g., Edward H.

Bohlin Co. v. Banning Co.,

(5th Cir. 1993).

III. DISCUSSION No. 02-30026 -5-

Rederi and Ivaran Lines first contend that the district

court erred in granting summary judgment against Rederi. They

argue that: (1) Rederi was not properly included in the motion

for summary judgment, and (2) P&O Ports did not provide

sufficient summary judgment evidence to show that Rederi was

liable for the debt.

First, the district court properly determined that P&O Ports

moved for summary judgment against both Rederi and Ivaran Lines.

P&O Ports's initial motion for summary judgment sought judgment

against "A/S Ivaran Rederi," and Rederi responded to the motion

by contending that Ivaran Lines was liable for the debt due. P&O

Ports's amended motion for summary judgment sought judgment

against "Ivaran Line[s] AS" and also "incorporate[d] its

[previous] Motion fully by reference herein, including all

supporting exhibits and arguments." The district court

determined that the amended motion sought summary judgment

against both Rederi and Ivaran Lines. A party may incorporate a

previous motion by reference. Cf. FED. R. CIV. P. 10(c)

("Statements in a pleading may be adopted by reference in a

different part of the same pleading or in another pleading or in

any motion."). Rederi clearly had notice that P&O Ports sought

judgment against it.3

3 Rederi also claims that P&O Ports only sought judgment against Ivaran Lines because P&O Ports's proposed order (attached to its amended motion for summary judgment) stated: "The Court No. 02-30026 -6-

Rederi and Ivaran Lines also contend that the district court

erred in granting summary judgment against Rederi since the

district court denied the original summary judgment motion.

However, since "a denial of a motion for summary judgment is an

interlocutory order, the trial court is free to reconsider and

reverse its decision for any reason it deems sufficient, even in

the absence of new evidence or an intervening change in or

clarification of the substantive law." Lavespere v. Niagara

Mach. & Tool Works, Inc.,

(5th Cir. 1990); see

also FED. R. CIV. P. 54(b) ("[A]ny order . . . which adjudicates

fewer than all the claims or the rights and liabilities of fewer

than all the parties shall not terminate the action . . . and the

order . . . is subject to revision at any time before the entry

of judgment adjudicating all the claims and the rights and

liabilities of all the parties."). The fact that the district

court denied the original motion, then, did not preclude it from

granting summary judgment against both Rederi and Ivaran Lines.

Second, the district court did err in granting summary

judgment against Rederi based on the evidence presented.4 Since

finds and concludes that Defendant IVARAN LINE[S] AS is liable to Plaintiff . . ." P&O Ports included similar language referencing Rederi in the proposed order attached to its original motion. Since P&O Ports incorporated its previous motion seeking summary judgment against Rederi, the district court could properly grant summary judgment against both Rederi and Ivaran Lines. 4 Although Rederi and Ivaran Lines appeal the judgment, their arguments on appeal focus exclusively on the judgment No. 02-30026 -7-

Rederi and Ivaran Lines argue only that summary judgment against

Rederi was improper, we do not evaluate the evidence against

Ivaran Lines.

To make out its prima facie case for breach of contract

under Texas law, P&O Ports must show: (1) the existence of a

valid contract, (2) performance by P&O Ports, (3) breach of

contract by Rederi, and (4) damages to P&O Ports resulting from

the breach. E.g., Soc'y of Lloyd's v. Turner, No. 01-10463,

, at *19 (5th Cir. July 26, 2002); Wright v.

Christian & Smith,

(Tex. App.—Houston [1st

Dist.] 1997, no writ). P&O Ports has failed to meet its summary

judgment burden of showing there is no genuine issue of material

fact with respect to Rederi on each of these elements.

P&O Ports provided an affidavit of Laura Crumley, Vice-

President of Finance for Fairway, n/k/a P&O Ports. Crumley

stated that she was responsible for maintaining Fairway's

outstanding invoices; Fairway provided materials and services for

Rederi; Rederi owed Fairway $421,702.29; and Rederi had not paid

Fairway the amount due. Attached to Crumley's affidavit was a

past-due invoice spreadsheet listing work performed by P&O Ports

from July 18, 1996 to March 31, 1998. The spreadsheet was titled

"Ivaran Lines - Invoices Prior to May 21, 1998." This evidence

against Rederi. Our decision to reverse that judgment does not affect the judgment against Ivaran Lines, which remains intact. No. 02-30026 -8-

is ambiguous with respect to whether P&O Ports had a contract

with Rederi or Ivaran Lines. Rederi states that even if it is

liable to P&O Ports, it should not be held liable for the full

amount of the debt due because the past-due invoices spreadsheet

shows that it paid all but two debts incurred prior to formation

of Ivaran Lines. This evidence persuades us that fact issues

exist as to Rederi's contractual liability.

Additionally, the evidence provided by Rederi reinforces the

ambiguity as to whether the amounts due are owed by Rederi or

Ivaran Lines.5 Initially, Rederi points to a press release

showing the creation of Ivaran Lines. The press release, dated

June 11, 1997, states that "[T]he Board of Directors of Ivarans

Rederi ASA [Rederi] resolved to organize all liner activities on

the company in an own separate entity, IVARAN LINES AS,"

effective May 1, 1997. The press release states that Ivaran

Lines would have the same Chairman of the Board and same mailing

address as Rederi. The press release also notes that "[t]he new

company name will be used in all aspects of the company

activities such as . . . legal matters which concern[] the

operation of Ivaran Lines AS (agency agreements, stevedoring

agreements, port operations, conference matters, claims,

5 Rederi did not submit a response to P&O Ports's amended motion for summary judgment. Hence, Rederi relies upon the evidence it presented in response to P&O Ports's original motion for summary judgment and its answer to P&O Ports's complaint. No. 02-30026 -9-

insurance[,] etc.)."

Next, Rederi provides two letters from Frank Fogarty,

President of Fairway, to Eirik Holter-Sorensen, of Rederi and

Ivaran Lines, requesting payment for services rendered.

According to the press release, Holter-Sorensen was the Chairman

of the Board of Directors of both Rederi and Ivaran Lines; one of

the letters also refers to him as the General Counsel for Ivaran

Lines. One letter is addressed to Holter-Sorensen at "Ivaran

Lines AS" and the other is addressed to him at "Ivaran Lines A/S

Iv[a]rans Rederi." Both letters were sent to the same address.

In his December 3, 1997 letter, Fogarty notes the "long

outstanding invoices due from Ivaran" and states that "our

contract to provide services was with Ivaran Line[s] and we look

to you for payment in full." In the December 17, 1998 letter,

Fogarty states: "[W]e maintain that Ivaran Lines A/S is legally

responsible for the amount owed us of approximately $412,000."

Finally, Rederi relies on the declaration of Holter-

Sorensen. Holter-Sorensen introduces himself as the "General

Manager of AS Ivaran Rederi" and then states that "AS Ivaran

Rederi did not incur the debt . . . but rather the debt upon

which Fairway is suing was incurred by Ivaran Lines AS, at the

time an entity separate and apart from AS Ivaran Rederi."

The district court granted summary judgment against both

Rederi and Ivaran Lines for the entire amount due. In so doing, No. 02-30026 -10-

the district court determined that the "evidence in the record

indicates no dispute with regard to the existence of a valid

contract performed by Fairway, nonpayment by Rederi and Ivaran

Lines and damages suffered." The district court assumed that the

invoice spreadsheet showed a contract with both Rederi and Ivaran

Lines and did not assess whether the letters and press release

offered by Rederi and Ivaran Lines created a genuine issue of

material fact.

The invoice spreadsheet, press release, and letters show a

genuine dispute as to Rederi's liability to P&O Ports.6 From

this evidence, it is unclear whether P&O Ports was looking to

Rederi or Ivaran Lines for payment. It is also unclear whether

P&O Ports agreed to release Rederi from the obligation Rederi

originally incurred. The press release shows the incorporation

of Ivaran Lines but does not address the continuing obligations

of Rederi. The letters from Fogarty to Holter-Sorensen do not

6 We do not consider Holter-Sorensen's declaration that Rederi is not liable to P&O Ports because conclusory statements are insufficient to demonstrate a genuine issue of material fact. See Lujan v. Nat'l Wildlife Fed'n,

(1990); Eason v. Thaler,

(5th Cir. 1996). Rederi contends that P&O Ports cannot attack Holter- Sorensen's declaration on the basis of lack of personal knowledge on appeal because P&O Ports did not do so in the district court. We do not discount Holter-Sorensen's declaration because Holter- Sorensen lacks personal knowledge. Rather, we find the declaration unhelpful because it does not provide any specific facts supporting Holter-Sorensen's assertion that only Ivaran Lines is responsible for the debt. No. 02-30026 -11-

indicate whether Rederi or Ivaran Lines is liable for the debt.7

We are certainly sympathetic to the district judge's perception

that the contract was with both Rederi and Ivaran Lines, for the

evidence in this case is particularly confusing. However, since

there appears to be a fact question on this record, we must

reverse the district court's grant of summary judgment against

Rederi.8

Because we determine that summary judgment was improper, we

do not address the issue of whether the district court erred in

its assessment of Rederi's and Ivaran Lines's motion to amend the

judgment.

IV. CONCLUSION

For the foregoing reasons, the district court's grant of

summary judgment in favor of P&O Ports and against Rederi is

REVERSED and the case is REMANDED.

7 Rederi claims that since the letters refer only to Ivaran Lines, P&O Ports was only looking to that entity for payment. The letters, however, refer to "Ivaran Lines AS," "Ivaran Lines A/S Iv[a]rans Rederi," "Ivaran Lines A/S," "Ivaran," and "Ivaran Line." The letters clearly evidence some confusion as to the distinction between the two entities, but they do not conclusively show that P&O Ports was looking only to Ivaran Lines. 8 In its list of trial exhibits, P&O Ports proposed to submit invoices it sent to Rederi and Ivaran Lines. Perhaps these invoices will clarify the identities of the parties to the contract in this case.