* Pursuant to 5th Cir. R. 47.5, th e Court has determ ined th at this opinio n should not be published and is not precedent except under the limit ed circumstances set fo rth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED May 15, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 06-31069 Summary Calendar

CYNTHIA C. KESSLER; MARK A. TESSIER, Pl aint iffs-Appellees,

versus NICHOLAS P. POPICH, Defendant-Appellant. MARK A. TESSIER, Pl aint iff- Appellee, versus NICHOLAS POPICH, Defendant-Appellant.
Appeal from the United States District Court fo r the Eastern District of Louisiana (No. 2:03-CV-02883) Before DeMOSS, STEWART, and PRADO, Circuit Judges. PER CURIAM: *2

Nicholas Popich appeals from th e distr ict court’ s judgment that he entered into an oral contract wi

th Cynt hia Kessler and Mark Tessier. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND Tessier and Popich fir st met in Septem ber 2001, and they discussed the possibilit y of Tessier raising funds fo r Bio lo gical Processors of America (BPA), a marit ime-based flo ating waste processing facilit y th at was to be fo unded by Popich. Popich told Tessier at this meeting that he planned to put $500,000 seed mo ney int o th e com pany. Tessier’s initial job as CEO would be to raise an additional five millio n dollars to com plete a feasibilit y study fo r the proj ect. Tessier accepted and in January 2002, began working from an of fice lo cated on property owned by Popich. When Tessier raised the issue of com

pensati on, Popi ch told him t hat he was waiting for the pre-feasibility study to be
com pleted. Tessier also suggested that Kessler be hired as CFO of BPA, and she was offered and accepted the position. Kessler worked out of the same office space as Tessier. Tessier and Kessler both wanted a definit ive agreement about com pensation, and each of th em drafted an employment agreement th at th ey presented to Popich. Tessier testified that he edited his agreement according to suggestions from Popich, but neit her agreement was ever signed. In early May 2002, Popich, Tessier , and Kessler had a lunch meeting. Tessier and Kessler asked to be
com pensated, and Popich responded, “Yes, I guarantee it ; yo u will be paid.” Tessier testified that his annual salary was to be $175,000, starting May 1, 2002. Kessler testified that her annual salary
was to be $120,000, starting May 15, 2002. Aft er this meet ing, both Tessier and Kessler began submit ting invo ices and receiving com pensation from Popich, alt hough never in th e full amo unt billed
on th eir invo ices. The checks were no t pai d f rom BPA or Popich personally; instead Global3

Remediation, Inc., another com pany owned by Popich, wrote checks to Tessier and Kessler. Popich testified at trial that these checks were to defray expenses, not to compensate as salary. Tessier asked Popich about th e additional mo ney he was owed, and Popich told him th at he
was trying to refinance som e real estate, aft er which he would put the $500,000 seed mo ney in BPA, and Tessier and Kessler would be paid from these funds. Kessler also testified that she spoke regularly to Popich about com pensation and th at each time he guaranteed her th at she would be paid. On Oc tob er 9, 2002, Popich sent Tessier a letter stating that he did “not feel that Global Remediation is in a position to continue to finance it s related com panies. Therefore, I must ask you to suspend our consultancy agreement until we are in a better position to mo ve fo rward.
. . . Please submit yo ur invo ice fo r time spent and please give some consideration to our financial plight and I will make every effo rt to see th at th ey are paid as prom ptl y as possible.” The refinancing on the real estate fell th

rough, and on October 31, 2002, Tessier received a let ter from Popich stating th at Popich had to “stop th e bleeding,” and th at, until further notice, he could not pay Tessier. Tessier continued to work f or Popich until March 2003. For the time between May 2002 and October 2002, Tessier
was owed $86,892.28. Kessler testified that she learned of the “stop the bleeding” letter through Tessier. She stopped working on October 31, 2002. Her unpaid invoices totaled $48,187.71. The district court held th at Popich entered int o an oral contract wit h Tessier and Kessler and th at he was therefore responsible for the payment of their salaries between May 2002 and October 2002. The district court also fo und that the contract consti tuted a s tipulation pour autrui under Loui siana law. Popich appeals. II. DISCUSSION4

We review the di strict court’s int erpretation of the contract de novo to the extent that the contract was unambiguous. N at’l Union Fire Ins. of Pittsburgh, Pa. v. Circle, Inc. , 915 F.2d 986, 989 (5th Cir. 1990). If the interpretation of the contract turns on extrinsic evidence, the standard of review is clearly erroneous. I d. Whether or not a contract exists at all is a question of fact th at this court also reviews fo r clear error. Ham Marine, Inc. v. Dresser Indus., Inc. , 72 F.3d 454, 460-61 (5th Cir. 1995). Additionally, the existence of a s tipulation pour autrui is a factual question reviewed fo r clear error. See Liquid Drill, Inc. v. U.S. Turnkey Exploration, Inc. , 48 F.3d 927, 932-33 (5th Cir. 1995). Whether o r n ot an agency relationship exists is also “essentially a factual matter.” Houston Exploration Co. v. Halliburton Energy Servs., Inc. , 359 F.3d 777, 779-80 (5th Cir. 2004) (quoting Webb v. Lagniappe Hosp. Corp. , 714 So.2d 901, 904 (La. Ct. App. 1998)). Under Loui siana law, contracts in excess of $500 “must be proved by at least one wit ness and oth er corroborating circu mst ances.” La. Civ. Code Ann. art. 1846. The party seeking to enforce performance bears th e burden of proving th e existence of the contrac t b y a preponderance of the evidence. B .M. Albrecht Elec., Inc. v. Griffin , 413 So.2d 246, 247 (La. Ct. App. 1982). The corroborating evidence need only be general in nature; each specific detail of the alleged contract does not need to be corroborated. G ulf Container Repair Servs., Inc. v. FIC Bus. & Fin. Ctrs., Inc. , 735 So.2d 41, 43 (La. Ct. App. 1999). The tri al judge has great latitude in what to accept as corroborating evidence. B.M. Albrecht Elec ., 413 So.2d at 247. Under La. Civ. Code Ann. art. 1978, a “contracting party may sti pulate a benefit for a third person called a thir d party beneficiary.” “The true third party beneficiary is never a part y t o th e contract. He i s never a prom isee. The promisee is the stipulator and the promise runs to him [the prom isee] and is merely in favor of th e thir d party .” J oseph v. Hosp. Serv. Dist. No. 2 of Parish of5

St. Mary , 923 So.2d 27, 33 (La. Ct. App. 2005) (quotati ons and citations omitted), rev’d on other grounds , 939 So.2d 1206 (La. 2006). This type of contract is known in Louisiana as a stipulation pour autrui
. A s tipulation pour autrui is “never presumed,” Boyte v. La. AG Credit PCA , 899 So.2d 765, 769 (La. Ct. App. 2005), but it “may be implie d from a consideration of the agreement as a whole, as well as by express sti pulation.” J

oseph , 923 So.2d at 34. “[T]he intent of the contracting parties to sti

pulate a benefit in fav or of a third party must be made manifestly clear.” B oyte , 899 So.2d at 769. A s tipulation pour autrui need not be in writing. J oseph , 939 So.2d at 1215 & n.14. Essentially, Popich asks this court to review th e district court’s factual determ inat io ns th at
an oral contract was formed and that Popich entered int o this contract in his personal capacity wit h th e int ent th at a benefit would accrue to BPA th rough his actions. He contendsthat there was not a valid oral contract or in th e alt ernative th at he was serving a s an agent of BPA if a contract was indeed formed. First, we find no clear error in the district court’s determ inat io n th at two oral contracts were created between Popich and the two plaint iffs. The testimo ny o f each of the plaintiffs was enough to answer the requirement that a wit ness testify as to the fo rmation of the contract. Testimo ny by th e plaint iff is not barred from fulfilling the statutory requirement t hat a witness testify as t o th e fo rmation of the contract. G ulf Container Repair Servs. , 735 So.2d at 43. While Popich points to this testimo ny as self-serving, he does not deny th e substanc e of what was said. Therefore, the district court did not err in finding the first statutory requirement satisfied. Additionally, th e oth er evidence relied on by the district court was sufficient to serve as corroborating evidence. The court rel ied on invoices submitted by Tessier and Kessler to Popich, as well as evidence from time sheets th at Tessier and Kessler were paid by Global Remediation but were6

still owed additional mo ney. These kinds of documents are competent to serve as corroborating evidence. S ee Gulf Container Repair Servs. , 735 So.2d at 43-44 (allowing unchallenged invo ices th at th e defendant had parti ally paid to serve as corroborating evidence). Popich points to the unsigned employment agreements th at Tessier and Kessler drafted as evidence th at tends to di sprove the creation of a contract. While t hese contracts were never actually executed, this evidence has no bearing on what took place between Popich and the plaintiffs in early May 2002 and thus does not negate the plaintiffs’ evidence of corroborating circumstances. Secondly, we do not find th at th e district court clearly erred by finding that Popich entered int o a stipulation pour autrui rather than entering int o a contract as an agent of BPA. While there is som e evidence th at supports Popich’s theory of th e case, such as th e fact th at Popich told Tessier th at he would be paid from funds th at were put int o th e BPA’s account, th e district court di d not clearly err because th ere were also circumstances th at support it s finding. For instance, Popich paid Tessier and Kessler with funds from Global Remediation, something that only he in his perso nal capacity, not BPA, could have done. Additionally, BPA was unable to pay the plaintiffs because it had no funds; only Popich’s prom ise in his personal capacity could have induced the plaint iffs to keep working. When viewing the circumstances surrounding the contract as a whole, the district court did not err in finding t hat the parties manifestly intended their oral contract to benefit BPA. III. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court.