United States District Court, W.D. Louisiana, Shreveport Division
SABRE INDUSTRIES, INC.
MODULE X SOLUTIONS, LLC, ET AL.
HORNSBY JR. MAGISTRATE
MAURICE HICKS, UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff/Counter-Defendant Sabre Industries,
Inc.'s (“Sabre”) Motion in Limine No. 11 to
Exclude Evidence by Defendants' Expert, Benjamin C.
Woods, Regarding MXS's Purported Lost Revenues as a
Measure of MXS's Claimed Damages. See Record
Document 140. Defendants opposed the motion. See
Record Document 160. At the September 26, 2017 pretrial
conference, the Court asked for additional briefing on the
proper measure of damages. See Record Document 171.
Sabre and Defendants have now filed supplemental briefs.
See Record Documents 176 & 179.
argues that lost profit, not lost revenue, is the proper
measure of Defendants' claimed damages. See
Record Document 140-1 at 4. In its supplemental brief, Sabre
Sabre recognizes that Woods will need to discuss [MXS's]
alleged lost revenues in connection with Module X
Solutions' claim for lost profits. Rather, the relief
that Sabre seeks is much narrower than that characterized by
defendants. Indeed, what Sabre seeks is only an Order
precluding Woods (and defendants) from testifying that
MXS's alleged lost revenues (as opposed to lost profits)
is the appropriate measure of damages to apply to the claims
Document 179 at 1-2. Sabre further notes that MXS has not
cited a single code article or case in support of its
position that MXS is entitled to recover both lost profits
and lost revenues. See id. at 2.
Defendants argue that lost revenues are among the many
factors that a jury can consider in determining the
appropriate award of damages under Louisiana contract law.
See Record Document 160 at 5. Defendants maintain
that Sabre's bad faith breach of the JV Agreement
entitles them to “the revenues MXS lost as a result of
Sabre's failure to deliver the number of shelter orders
required in the JV Agreement.” Id. Defendants
rely heavily upon Volentine v. Raeford Farms of
Louisiana, LLC, 50, 698 (La.App. 2 Cir. 8/15/16), 201
So.3d 325, writ denied, 2016-1924 (La. 12/16/16),
212 So.3d 1171, and writ denied, 2016-1925 (La.
12/16/16), 212 So.3d 1171, to support their position that
lost revenues and expenses beyond lost profits are available
to a victim of bad faith breach. See Record Document
176 at 3.
Civil Code Article 1994 provides that “an obligor is
liable for the damages caused by his failure to perform a
conventional obligation. A failure to perform results from
nonperformance, defective performance, or delay in
performance.” “Damages are measured by the loss
sustained by the obligee and the profit of which he has been
deprived.” La. C.C. Art. 1995. “An obligor in
good faith is liable only for the damages that were
foreseeable at the time the contract was made.” La.
C.C. Art. 1996. However, “an obligor in bad faith is
liable for all the damages, foreseeable or not, that are a
direct consequence of his failure to perform.” La. C.C.
plaintiff in Volentine alleged breach of contract
and violation of the Louisiana Unfair Trade Practices Act.
See Volentine, 201 So.3d at 332. On appeal from a
bench trial, the Louisiana appellate court affirmed the trial
court's determination that defendant's abrupt
termination of the contract was a bad faith breach. See
id. at 348. The appellate court reviewed, among other
things, the trial court's award for economic loss related
to poultry operations, more specifically past and future
“loss of farming income” Volentine, 201
So.3d at 336, 351. The Volentine court discussed the
measure of damages for a bad faith breach of contract and
The Contract encompassed the benefit to [plaintiff] of
farming income, the loss of which, upon [defendant's]
breach of the Contract, would cause the damage expected by
Id. at 349. It is true that the appellate court
discussed “total loss of revenues” and
“loss of farming income” in the context of
damages; however, a close reading of the case establishes
that the court relied upon the experts' profit
projections and used lost profits as the measure of damages.
Id. at 351-352. The court stated:
Loss of profits must be proved with reasonable certainty and
cannot be based on speculation or conjecture. Simpson v.
Restructure Petroleum Mktg. Servs., Inc., 36, 508
(La.App.2d Cir.10/23/02), 830 So.2d 480; Clark v.
Ark-La-Tex Auction, Inc., 593 So.2d 870 (La.App. 2d
Cir.1992), writ denied, 596 So.2d 210 (La.1992).
Furthermore, a claim for lost profits cannot rest solely on
the testimony of the injured party without being
substantiated by other evidence. Simpson,
Here, we find no merit to Raeford's argument regarding
Miller's qualifications. Miller was qualified as an
expert forensic accountant and set forth his qualifications
on the record. It was within the trial court's broad
discretion to accept his qualifications as an expert in