RED STAR CONSULTANTS, LLC, AND FEPRO FIRE PROTECTION CO. LTD.
FERRARA FIRE APPARATUS, INC.
Appeal from the 23rd Judicial District Court Parish of
Ascension, State of Louisiana Trial Court No. 102, 666 The
Honorable Thomas J. Kliebert Jr., Judge Presiding
P. Frederick Michael T. Beckers Danielle N. Goren Baton
Rouge, Louisiana Attorneys for Defendant/ Appellant, Ferrara
Fire Apparatus, Inc.
Christian T. A very Gonzales, Louisiana and Cody M. Martin
Gonzales, Louisiana and Al J. Robert, Jr. New Orleans,
Louisiana Attorneys for Plaintiffs/ Appellees, Red Star
Consultants, LLC, and Fepro Fire Protection Co., Ltd.
BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
Fire Apparatus, Inc., appeals a summary judgment ordering it
to pay Red Star Consultants, LLC, and Fepro Fire Protection
Co., jointly, $576, 436.00, pursuant to an oral contract, and
dismissing its reconventional demand. Finding genuine issues
of material fact, we reverse.
Red Star and Fepro, instituted this suit claiming Ferrara
Fire hired Red Star to assist in marketing and selling fire
trucks in China, and hired Fepro, a company based in China,
to assist in sales and service matters. Plaintiffs contend
their agreements with Ferrara Fire included payment of
commissions associated with truck sales. Plaintiffs allege
their joint efforts resulted in the sale of four fire trucks.
According to plaintiffs, Ferrara Fire was paid more than 2.5
million dollars for the sales, representing 90% of the
purchase price for the trucks, with 10% withheld subject to
obtaining a product certification required by Chinese
authorities (the CCC certification). Plaintiffs claim Ferrara
Fire stopped pursuing the CCC certification and has refused
to pay the amounts due based on an alleged internal policy of
only making commission payments after receiving payment in
full. Plaintiffs assert claims on open account, unjust
enrichment and detrimental reliance, and seek a mandatory
injunction compelling Ferrara Fire to obtain the CCC
Fire denied the allegations and alleged plaintiffs'
claims are premature because full payment has not been
received for the fire trucks. Ferrara Fire also asserted a
reconventional demand against plaintiffs and Steve Oubre, who
formed Red Star. In the reconventional demand, Ferrara Fire
alleged plaintiffs breached their obligation to obtain the
CCC certification, causing Ferrara Fire to lose 10% of the
purchase price of the trucks. Ferrara Fire alleged Oubre and
Red Star breached their obligations to Ferrara Fire by
erroneously translating documents to and from Chinese and
caused damages exceeding $100, 000.00. Ferrara Fire sought
damages for breach of contractual duties and detrimental
reliance on plaintiffs' representations.
filed a motion for partial summary judgment seeking the
specific amount of $650, 402.00 and the dismissal of Ferrara
Fire's reconventional demand. They argued Ferrara
Fire's documents were prima facie proof of
contracts between Ferrara Fire and plaintiffs, and that
Ferrara Fire's records established the commissions and
expenses owed plaintiffs. Regarding the reconventional
demand, plaintiffs asserted Ferrara Fire has no evidence that
plaintiffs were contractually bound to obtain the CCC
certification or breached any obligation to obtain it, and
Ferrara Fire has no competent evidence suggesting plaintiffs
or Oubre breached any obligation causing damage to Ferrara
Fire opposed the motion, asserting the existence of multiple
genuine issues of material fact precluding summary judgment.
Ferrara Fire disputed agreeing to pay commissions to Red
Star, claimed any commissions must be reduced by Ferrara
Fire's costs and expenses, and claimed to have suffered
losses due to errors committed by the parties. Ferrara Fire
also claimed plaintiffs sought payment for fees beyond the
scope of their contract.
trial court granted summary judgment in favor of plaintiffs,
ordered Ferrara Fire to pay $622, 170.00 ($650, 402.00 less
$28, 232.00 attributed to training expenses), and dismissed
the reconventional demand. Ferrara Fire filed a motion for
new trial, arguing the summary judgment was contrary to the
law and evidence. At the hearing on the motion for new trial,
Ferrara Fire argued the claimed $650, 000.00 included both
expenses and commissions, and that expenses and commissions
paid "up front" had to be subtracted. The trial
court ordered the parties to submit charts based upon the
summary judgment evidence showing what was owed and what was
paid. The trial court then granted the motion for new trial,
again rendered judgment in favor of plaintiffs, ordered
Ferrara Fire to pay plaintiffs, jointly, $576, 436.00, and
again dismissed Ferrara Fire's reconventional demand.
Pursuant to Louisiana Code of Civil Procedure article 1915B,
the judgment was certified as final with an express finding
of no just reason to delay an appeal.
courts review summary judgments de novo using the
same criteria governing the trial court's consideration
of whether summary judgment is appropriate. Kennedy v.
Sheriff of East Baton Rouge, 05-1418 (La. 7/10/06), 935
So.2d 669, 686. That is, a motion for summary judgment shall
be granted if, after an opportunity for discovery, the
motion, memorandum, and supporting documents show there is no