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Red Star Consultants, LLC v. Ferrara Fire Apparatus, Inc.

Court of Appeals of Louisiana, First Circuit

February 8, 2018

RED STAR CONSULTANTS, LLC, AND FEPRO FIRE PROTECTION CO. LTD.
v.
FERRARA FIRE APPARATUS, INC.

         On 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

          Brent 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.

          CRAIN, J.

         Ferrara 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.

         FACTS

         Plaintiffs, 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 certification.

         Ferrara 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.

         Plaintiffs 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.

         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.

         The 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.

         DISCUSSION

         Appellate 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 ...


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