FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. 2015-3159 HONORABLE DAVID M. SMITH, DISTRICT
Michael J. Remondet, Jr. Jeansonne & Remondet Counsel for
Plaintiff/Appellee: Professional Fluid Services, LLC
J. Schexnaydre Schexnaydre Law Firm, LLC, Counsel for
Defendants/Appellants: Norsk Bronnservice AS NBS Solutions AS
composed of Phyllis M. Keaty, John E. Conery, and Van H.
PHYLLIS M. KEATY JUDGE
a breach of contract case. The parties filed opposing motions
for summary judgment concerning a liquidated damages clause
in a contract between them. The trial court denied the
defendants' motion for summary judgment, granted partial
summary judgment in favor of the plaintiff, struck the
liquidated damage clause from the contract, and dismissed the
defendants' counterclaim. The defendants took an appeal
from the judgment granting the plaintiff's motion. For
the following reasons, we affirm.
AND PROCEDURAL HISTORY
Professional Fluid Services, LLC (PFS), is a Louisiana
corporation that develops and manufactures products used in
the oil industry. In November 2011, PFS entered into an
Exclusive Marketing Agreement (2011 EMA) with Norsk
Bronnservice AS (NBS), a Norwegian corporation, to market
PFS's products in the Russian Federation. On February 10,
2012, PFS signed a second EMA (2012 EMA) with NBS, which
unlike the 2011 EMA, included a liquidated damages
email dated June 3, 2015, PFS terminated the EMAs with NBS
citing "unresolvable business disputes." In
response, NBS sent PFS an invoice seeking $663, 267.97 in
liquidated damages that it calculated under Section 7(d) of
the 2012 EMA. Several weeks later, PFS filed suit against
NBS, seeking a declaratory judgment plus damages based upon
NBS's breach of the 2011 EMA. More specifically, PFS
asserted that NBS breached the 2011 EMA by failing to pre-pay
orders, maintain inventory, and sell any PFS products in
2015. PFS sought injunctive relief to prevent NBS from
carrying out its written threat to defame PFS to its
worldwide business partners. Finally, PFS requested that a
declaratory judgment be issued declaring the 2012 EMAs it
purportedly signed with NBS invalid.
filed an answer and counterclaim against PFS, seeking an
award of damages from PFS for its failure to perform under
the contracts. In March 2017, NBS filed a motion for summary
judgment, asserting that because it had not "materially
breached" the 2012 EMAs, PFS's cancellation of the
agreements was improper, thereby triggering Section 7(d) of
those agreements and entitling NBS to the liquidated damages
provided for therein. As such, NBS sought summary judgment on
its counterclaim, along with dismissal of all PFS's
claims against it. Thereafter, PFS filed a motion for partial
summary judgment, seeking to have the trial court declare the
liquidated damages clause incalculable as written, and, thus,
unenforceable. In its brief to the trial court and to this
court on appeal, PFS stated that "for the sake of
argument only, " it will assume that "the February
2012 Agreements are valid."
hearing, the trial court found as a matter of law that
"Paragraph 7(d) of the 2012 [EMAs] is ambiguous."
By judgment dated August 1, 2017, the trial court granted
PFS's motion for partial summary judgment, severed and
struck Paragraph 7(d) from the 2012 EMAs, and dismissed
NBS's counterclaim that was based on the liquidated
damages clause; the judgment was designated as final for
purposes of appeal. By separate judgment, the trial court
denied NBS's motion for summary judgment after finding
that genuine issues of material fact remained.
appealed  and is now before this court asserting the
following assignments of error:
1. The trial court was legally incorrect in finding clause
7(d) of the 2012 Agreements ambiguous as a matter of law
simply because common business terms in the clause were not
specifically defined, and further erred in failing to address
the available extrinsic evidence to determine the intent of
the parties so as to overcome any alleged ambiguity.
2. The trial court erred in striking the entirety of 7(d)
from the 2012 Agreements. Striking a clause deemed ambiguous
was not the proper remedy because a clause deemed ambiguous
as a matter of law requires the trier of fact to address
extrinsic evidence to determine the intent of the parties, or
to instruct the trier of fact to simply construe the
ambiguity against the drafter, not strike it altogether.
3. In the alternative, the trial court erred in striking the
entirety of clause 7(d) from the 2012 Agreements because, at
best, only the multiplier portion of the clause could be
legally deemed ambiguous (an issue that Norsk/NBS conceded
for purposes of the Motion for Summary Judgment.)
4. The trial court erred in deeming the calculations in
support of Invoice No. 0113.2015 improper and denying
Norsk/NBS recovery of the liquidated damages set forth
review of the granting of a motion for summary judgment is
de novo, using the identical criteria that govern
the trial court's consideration of whether summary
judgment is appropriate." Smitko v. Gulf S. Shrimp,
Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755.
"The summary judgment procedure is designed to secure
the just, speedy, and inexpensive determination of every
action. . . . The procedure is favored and shall be construed
to accomplish these ends." La.Code Civ.P. art.
966(A)(2). On de novo review, "there is no deference to
the trial judge's legal findings, and we make an
independent review of the evidence in determining whether
there is no genuine issue of material fact and whether the
mover is entitled to judgment as a matter of law under
La.Code Civ.P. art. 966." Bridges v. Cepolk
Corp., 13-1051, p. 10 (La.App. 3 Cir. 2/12/14), 153
So.3d 1137, 1145, writ denied, 14-901 (La. 8/25/14),
147 So.3d 1117. "A genuine issue of material fact is one
as to which reasonable persons could disagree; if reasonable
persons could reach only one conclusion, there is no need for
trial on that issue and summary judgment is
appropriate." Smitko, 94 So.3d at 755.
to La.Code Civ.P. art. 966(D)(1):
The burden of proof rests with the mover. Nevertheless, if
the mover will not bear the burden of proof at trial on the
issue that is before the court on the motion for summary
judgment, the mover's burden on the motion does not
require him to negate all essential elements of the adverse
party's claim, action, or defense, but rather to point
out to the court the absence of factual support for one or
more elements essential to the adverse party's claim,
action, or defense. The burden is on the adverse party to
produce factual support sufficient to establish the existence
of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.
in Van Mol v. Beasley, 15-869, p. 4 (La.App. 3 Cir.
2/3/16), 184 So.3d 280, 284 (alteration in original), this
court discussed the law regarding the interpretation of
Louisiana Supreme Court has stated:
"[W]hen a contract can be construed from the four
corners of the instrument without looking to extrinsic
evidence, the question of contractual interpretation is
answered as a matter of law." Sims v. Mulhearn
Funeral Home, Inc., 07-0054, p. 10 (La.5/22/07), 956
So.2d 583, 590. "Interpretation of a contract is the
determination of the common intent of the parties."
La.Civ.Code art. 2045. The reasonable intention of the
parties to a contract is to be sought by examining the words
of the contract itself, and not assumed. Sims,
07-0054 at p. 7, 956 So.2d at 589; McConnell v. City of
New Orleans, 35 La. Ann. 273 (1883). "When the
words of a contract are clear and explicit and lead to no
absurd consequences, no further interpretation may be made in
search of the parties' intent." La.Civ.Code art.
2046. Common intent is determined, therefore, in accordance
with the general, ordinary, plain and popular meaning of the
words used in the contract. Louisiana Ins. Guar.
Ass'n v. Interstate Fire & Cas. Co., 93-0911, p.
5 (La.1/14/94), 630 So.2d 759, 763.
v. Guillory, 10-740, pp. 6-7 (La.7/2/10), 38 So.3d 274,
To determine the meaning of words used in a contract, a court
should give them their generally prevailing
meaning. If a word is susceptible to different
meanings, it must be interpreted as having the meaning that
best conforms to the object of the contract.A provision
susceptible of different meanings must be interpreted with a
meaning that renders the provision effective, and not with
one that renders it ineffective.Furthermore, each provision
in a contract must be interpreted in light of the other
provisions so that each is given the meaning suggested by the
contract as a whole.
St. Mary Operating Co. v. Guidry, 06-1495, p. 6
(La.App. 3 Cir. 4/4/07), 954 So.2d 397, 402, writ
denied, 07-962 (La.6/29/07), 959 So.2d 520, quoting
Claitor v. Delahoussaye, 02-1632 (La.App. 1 Cir.
5/28/03), 858 So.2d 469, writ denied, 03-1820
(La.10/17/03), 855 So.2d 764 (internal citations omitted).
of a contract and, specifically the issue of whether a
contract is ambiguous, is a question of law properly
determined at the summary judgment stage." Semco,
LLC v. Grand Ltd., 16-342, p. 43 (La.App. 5 Cir.
5/31/17), 221 So.3d 1004, 1035, writ denied, 17-1291
(La. 11/6/17), 229 So.3d 475. "In case of doubt that
cannot be otherwise resolved, a provision in a contract must
be interpreted against the party who furnished its text. A
contract executed in a ...