Professional Fluid Services, LLC v. Norsk Bronnservice As

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-920
consolidated with 17-827

PROFESSIONAL FLUID SERVICES, LLC

VERSUS

NORSK BRONNSERVICE AS, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2015-3159
HONORABLE DAVID M. SMITH, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

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Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.

Conery, J., dissents and assigns reasons.

AFFIRMED. WRIT DENIED.

Michael J. Remondet, Jr.
Jeansonne & Remondet
Post Office Box 91530
Lafayette, Louisiana 70509
(337) 237-4370
Counsel for Plaintiff/Appellee:
Professional Fluid Services, LLC

David J. Schexnaydre
Schexnaydre Law Firm, LLC
2895 Highway 90, Suite 212
Mandeville, Louisiana 70471
(985) 235-1089
Counsel for Defendants/Appellants:
Norsk Bronnservice AS
NBS Solutions AS

KEATY, Judge.

This is 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.1

FACTS AND PROCEDURAL HISTORY

Plaintiff, 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.2 On February 10, 2012, PFS signed a second

EMA (2012 EMA) with NBS, which unlike the 2011 EMA, included a liquidated

damages clause.3

By 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

1
The defendants also sought writs from the denial of its motion for summary judgment,
which were assigned docket number 17-827. Upon motion of the plaintiff, this court
consolidated the appeal and the writ.
2
The Russian Federation was formerly known as the Soviet Union.
3
On that same date, PFS signed a separate EMA with NBS Solutions AS (NSA), another
Norwegian corporation, that was virtually identical to the 2012 EMA it signed with NBS except
that it named NSA as the distributor. For simplicity, we will collectively refer to both contracts
as “the 2012 EMAs.” In addition, because the parties generally treat NBS and NSA as one entity,
we will do the same and refer to both collectively as “NBS” for purposes of this appeal.

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.

NBS 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.”4

After a 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

4
We will, likewise, assume that the 2012 EMAs are valid; however, we specifically
make no finding as to authenticity and/or validity of those agreements.
2

purposes of appeal.5 By separate judgment, the trial court denied NBS’s motion

for summary judgment after finding that genuine issues of material fact remained.

NBS appealed 6 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 therein.

LAW

“Appellate 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

5
In designating the judgment as final and immediately appealable, the trial court noted
that if the judgment was reversed, NBS’s counterclaim could be tried with the remaining claims.
6
NBS sought supervisory writs from the judgment denying its motion for summary
judgment. Upon motion by PFS, this court consolidated the appeal and writ.
3

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.

According 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.

Recently, 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 contracts, writing:

The 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
4

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.

Prejean v. Guillory, 10-740, pp. 6-7 (La.7/2/10), 38 So.3d 274, 279.

To determine the meaning of words used in a
contract, a court should give them their generally
prevailing meaning.[ 7 ] 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.[8]
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.[9]
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.[10]

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).

“Interpretation 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

7
See La.Civ.Code art. 2047.
8
See La.Civ.Code art. 2048.
9
See La.Civ.Code art. 2049.
10
See La.Civ.Code art. 2050.
5

standard form of one party must be interpreted, in case of doubt, in favor of the

other party.” La.Civ.Code art. 2056.

True liquidated damages represent an amount, arrived at in a
good faith effort by the parties at the time of contracting, to
reasonably estimate the monetary loss which will probably be
sustained in the event of a breach. . . . No matter how clearly such
penalty clauses are written, courts as a matter of public policy should
decline to enforce an agreement which clearly is not one for true
liquidated damages.

John Jay Esthetic Salon, Inc. v. Woods, 377 So.2d 1363, 1367 (La.App. 4 Cir.

1979), writ denied, 380 So.2d 78 (La.1980).

DISCUSSION

Based on the appellate standard of review, rather than discussing NBS’s

assignments of error individually, we will simply review the evidence submitted in

favor of and in opposition to PFS’s motion for partial summary judgment to

determine whether it proved that it was entitled to judgment in its favor as a matter

of law.

The purpose of the 2011 and 2012 EMAs was to aid PFS in marketing its

products in the Russian Federation oil industry, as NBS had maintained an

established presence in that market for approximately thirty years. The 2012

EMAs gave NBS “the exclusive right to distribute and sell” certain named PFS

products to NBS’s customers in the Russian Federation during the term of the

agreement. The 2012 EMAs had an initial term of twenty-four months and was to

automatically renew for successive five years terms. Paragraph 7(b) of the 2012

EMAs provided that “[e]ither party shall have the right to terminate this

Agreement for breach of any material provision thereof by giving thirty (90) [sic][11]

days advance written notice to the breaching party, specifying the act or omission

11
According to Malvin Hoeydal, who signed the 2012 EMAs as CEO of NBS, the length
of the termination clause in the 2011 EMA was shortened from ninety to thirty days. The
September 26, 2016 deposition of Mr. Hoeydal was attached as Exhibit E to PFS’s motion for
summary judgment.
6

on which such termination is based.” That provision further provided that “[i]f,

under the circumstances present, it would appear that any breach is final, the

complaining party may terminate this Agreement by giving notice to that effect.”

Paragraph 7(c) specified that if the EMAs were to be terminated for any “material

breach,” all confidential information acquired from either party “shall survive such

termination and continue to be protected.”

Thereafter, Paragraph 7(d), the “liquidated damages clause” at the heart of

this appeal stated:

PFS shall pay compensation to NBS for the period of 3 years from the
date of cancellation in case of cancellation of this Agreement by PFS
without any form of material breach directly caused by NBS as
specifically stated within this Agreement. The compensation shall be
calculated as follows: the gross margin of NBS between the purchase
and the sales price for all PFS Products at the date of cancellation of
the Agreement minus sales cost (including transport cost) of NBS
multiplied by the future realistic sales volume of all PFS Products
being sold on regular basis in the Territory for a projected period of 3
years from the date of cancellation of the Agreement by PFS without
NBS having caused any material breach.

The 2012 EMAs did not contain a reciprocal provision obligating NBS to pay

liquidated damages to PFS should it cancel the agreement as specified above.

The 2012 EMAs contained a Severability Clause which provides that “[i]f

any provision of this Agreement is held invalid under any law, that provision shall

be deemed severable and its invalidity shall not affect the remainder of this

Agreement, which shall continue in full force and effect.”

PFS’s Motion for Partial Summary Judgment

PFS’s motion for partial summary judgment asserted that NBS’s

counterclaim should be dismissed because the liquidated damages clause upon

which it was based was incalculable as written, and thus unenforceable. Exhibit D

to PFS’s motion for partial summary judgment was the June 12, 2017 affidavit of

A. Anderson Hartiens, a Certified Public Accountant (CPA) and Certified
7

Valuation Analyst who had previously been accepted as an expert in accounting

and business valuations in Louisiana state and federal courts. According to his

affidavit, CPA Hartiens reviewed the following documents: both 2012 EMAs;12

the invoice from NBS to PFS dated June 18, 2015;13 Mrs. Hoeydal’s September 22,

2016 deposition;14 the June 12, 2017 affidavit of Boyce Donald Burts, III;15 the

“Ukraine and Russia Sanctions.” U.S. Department of State. U.S. Department of

State, n.d. Web. 07 June 2017 (https://www.state.gov/e/eb/tfs/spi/ukrainerussia/);

and the “Announcement of Expanded Treasury Sanctions within the Russian

Financial Services, Energy and Defense or Related Materiel Sectors.” U.S.

Department of the Treasury, 12 Sept. 2014. Web. 07 June 2017

(https://www.treasury.gov/press-center/press-releases/Pages/jl2629.aspx).

Mr. Hartiens’ affidavit then provided:

7. Assuming the February 10, 2012 Contracts are valid, [16] I offer
my opinion regarding the liquidated damages calculation
contained in Paragraph 7(d), which is identical in both
Contracts. . . .

8. In my opinion as a Certified Public Accountant, liquidated
damages are incalculable using the formula provided in
Paragraph 7(d). The terms in the formula are indefinite,
undefined, and ambiguous.

9. The term “the purchase and the sales price for all PFS Products
at the date of cancellation of the Agreement” does not provide a
time period to determine what qualifies as the purchase and
sales price at the date of cancellation. It is also unclear whether
that term refers to sales with NORSK/NBS or all PFS sales.”

12
See Exhibits A and B to PFS’s motion for partial summary judgment.
13
See Invoice No. 0113.2015 attached as Exhibit F to PFS’s motion for partial summary
judgment.
14
Exhibit H to PFS’s motion for partial summary judgment is the September 26, 2016
deposition of Mrs. Hoeydal.
15
Exhibit C to PFS’s motion for partial summary judgment is the June 12, 2017 affidavit
of Boyce Donald Burts, III, who is sometimes referred to by the parties as “Donnie” Burts.
16
In his affidavit, Mr. Hartiens stated that he was not offering any opinion on the validity
of the “February 10, 2012 Contracts.”
8

10. “Future realistic sales volume” is also an undefined, abstract,
ambiguous, and a speculative term that does not provide a clear
method, basis, or formula for determining a result. Since no
actual sales took place between the companies, it makes the
term “future realistic sales volume” a number that cannot be
calculated. One cannot multiply a gross margin dollar amount
by a “volume” and obtain any reasonable result.

11. “Regular basis” is also an undefined, abstract, and ambiguous
term that does not provide enough information for determining
that amount.

12. Because of the undefined, abstract, ambiguous, and speculative
terms in the formula provided in Paragraph 7(d) of the
Contracts, the amount of liquidated damages under the
provision cannot be calculated.

13. As to the Invoice 0113.2015 from NORSK/NBS to PFS dated
June 18, 2015, which purports to reflect the amount calculated
as liquidated damages by NORSK/NBS under Paragraph 7(d)
of the Contracts, it is my opinion as a Certified Public
Accountant that the calculations are unsupported and incorrect.

14. The Invoice 0113.2015, item one, related to the damage
paragraph, provides the amount of $442,179.80 as the “gross
margin between the purchase and the sales price for all PFS
Products at the date of cancellation of the Agreement minus
sales cost (including transport cost)”. No documentation or
supporting information in connection with their gross margin
calculation was provided with the invoice. Subsequently,
NORSK/NBS produced documentation supporting their
calculation. NORSK/NBS did not deduct the sales cost as
required by 7(d). The actual calculation for damages provided
by NORSK/NBS incorrectly shows a gross margin amount, that
omitted actual sales cost, and that was multiplied by a
percentage. Paragraph 7(d) requires that the gross margin
amount is multiplied times a “future realistic sales volume”, not
a percentage. One cannot multiply a gross margin dollar
amount by a “future realistic sales volume” and obtain any
reasonable result. NORSK/NBS’s calculation for damages
incorrectly used a percentage (150%) instead of a sales volume
as the multiplier as required by the agreement.

15. The Invoice 0113.2015 does not state what time period
NORSK/NBS considered in determining the “Gross margin
between the purchase and sales price for all PFS Products at the
date of cancellation of the Agreement minus sales cost
(including transport cost).”

9

16. The Invoice 0113.2015 provides, under item 2, “future very
realistic modestly estimated sales volume of all PFS Products
being sold on regular basis in the Territory for a projected
period of 3 years from the date of cancellation of the
Agreement by PFS” as 150%, but the Invoice provides no
information on how NORSK/NBS arrived at that percentage or
amount.

17. It is my understanding from the Affidavit of Boyce Donald
Burts, III and the deposition of Victoria Hoeydal that all
invoices issued by PFS to NORSK/NBS made during the term
of the contract were considered as test and well trials[. ] There
were no actual sales made for actual jobs since February 10,
2012, the date of the contract.

18. Because of the lack of actual sales, there is no “regular basis”
from which to calculate “future realistic sales volume.”

19. The sanctions imposed by the United States on the Russian
Federation and certain industries and companies in the Russian
Federation on September 12, 2014 would have a significant
deleterious effect on “future realistic sales volume.” The last
invoice issued by PFS to NORSK/NBS was August 31, 2014.

Based on CPA Hartiens’ affidavit and the remaining exhibits attached to its

motion for partial summary judgment,17 PFS submitted that the liquidated damages

clause provided an ambiguous formula that was incalculable. Citing John Jay, 377

So.2d 1363, PFS contended that because the “formula presented in Paragraph 7(d)

does not provide a method to reasonably estimate the monetary loss which will

probably be sustained in the event of a breach,” the liquidated damages clause

should be invalidated. PFS further submitted that because it was undisputed that

Mr. Hoeydal drafted the liquidated damages clause at issue using a standard

provision that NBS used in its contracts, any ambiguities in that clause should be

interpreted against NBS. Finally, citing Lawrence v. Terral Seed, Inc., 35,019

(La.App. 2 Cir. 9/26/01), 796 So.2d 115, writ denied, 01-3134 (La. 2/1/02), 808

So.2d 341, PFS contended in its brief to this court that where a contract provides a

17
PFS attached to its motion for partial summary judgment Exhibit G which consisted of
the invoices NBS produced in support of Invoice 0113.2015.
10

method to determine a price, such as the liquidated damages provision herein, but

that “method is ambiguous” and the parties to the contract “have not agreed on

how to implement such a method, the contractual provision is void for

uncertainty.” Accordingly, PFS sought judgment as a matter of law invalidating

the liquidated damages clause in the 2012 EMAs and dismissing NBS’s

counterclaim at its cost.

NBS opposed PFS’s motion for partial summary judgment based upon its

contention that Paragraph 7(d) was not ambiguous and that it was “applied

properly in calculating the liquidated damages set forth in Invoice No. 0113.2015.”

It submitted that the terms used in the liquidated damages clause were those

customarily used in the business world, and thus, should be easily understood by a

businessman such as Mr. Burts. NBS attached as Exhibit E to its opposition a

June 26, 2017 affidavit executed by Mrs. Hoeydal wherein she explained:

2. I personally prepared Invoice No. 0113.2015, to PFS dated June
18, 2015, using the formula set forth in paragraph 7D of the
February 10, 2012 Exclusive Marketing Agreement between
NBS/Norsk Bronnservice and PFS.

3. The “sales cost” set forth in the formula consists solely of
“transport cost,” which I included in my calculations as
evidenced by the invoices attached to my deposition taken
September 22, 2016, as part of Exhibit 4, in globo.

4. The figure of 150% I used in the formula as the multiplier to
represent “future very realistic modestly estimated sales
volume” was derived from the fact that the prior sales of PFS
products in the Russian Federation were sales for the purpose of
field testing by wholly new prospective clients, all of which
were successful. Therefore, all future sales would increase in
volume for actual production use, which I modestly estimated
to be 50% more than the volume used for testing, thus the
figure of 150%.

Making reference to the aforementioned deposition of Mr. Hoeydal, NBS claimed

that the liquidated damages clause was not drafted by Mr. Hoeydal alone, but

rather, it was the result of negotiations between him and Mr. Burts. NBS asked the
11

trial court to ignore CPA Hartiens’ affidavit, suggesting that his opinion was

speculative and conclusory and that “while he purport[ed] to have reviewed

Mrs. Hoeydal’s deposition, he glaringly left out her explanations relative to the

calculation[s]” she performed. Citing La.Civ.Code art. 2012,18 NBS submitted that

“Louisiana courts actually have a tradition of deferring to the parties’ stipulations

on damages where the contract is freely negotiated, regardless of whether they

approximate actual damages suffered,” such that the trial court should award it

$662,839.72 in liquidated damages, as sought in its counterclaim.

At the July 17, 2017 hearing on the competing motions for summary

judgment, counsel for NBS stated that his client would voluntarily withdraw its

claim to have the liquated damages amount enhanced by the multiplier provision

because it conceded that there were factual issues regarding the multiplier which

would preclude disposition of the matter by summary judgment. Thus, NBS

sought judgment in its favor on its counterclaim in the amount of $441,893.00.

At the conclusion of the hearing, after hearing the argument of counsel, the

trial court stated that it found the liquidated damages clause to be “ambiguous” and

it struck the clause from the 2012 EMAs. In so doing, it explained that “there are

no definitions in regards to any of the words. There’s no definition of how exactly

to calculate what . . . y’all are trying to come up with in the liquidated damages.”

After having performed a de novo review of the evidence submitted in

support of and in opposition to PFS’s motion for partial summary judgment, we

conclude that judgment was properly rendered in favor of PFS striking Paragraph

7(d) from the 2012 EMAs and dismissing NBS’s counterclaim. We find that PFS

properly supported its motion and met its burden of proving that the liquidated

18
Louisiana Civil Code Article 2012 provides that “Stipulated damages may not be
modified by the court unless they are so manifestly unreasonable as to be contrary to public
policy.”
12

damages clause upon which it was based was incalculable as written, and thus

unenforceable. Thereafter, the burden shifted to NBS to show that it would be able

to prevail on its counterclaim based upon the liquidated damages clause. Rather

than refuting the affidavit of CPA Hartiens with objective evidence, NBS relied on

Mrs. Hoeydal’s interpretation of the liquidated damages clause and her calculations

of what damages were owed to it based upon that clause. According to her

affidavit, Mrs. Hoeydal “modestly estimated” what “future sales” it would make of

PFS’s products. Those subjective explanations are not competent evidence to

oppose PFS’s properly supported motion for summary judgment. After applying

the evidence to the applicable jurisprudence, we conclude that PFS met its burden

of proving as a matter of law that the liquidated damages clause was unsusceptible

of calculation.

The parties included a severability clause in the 2012 EMAs, thus

evidencing their intent that if any provision was “held invalid under any law, that

provision shall be deemed severable.” (Emphasis added.) Accordingly, we

conclude that the liquidated damages clause was properly stricken from the 2012

EMAs. Thus, we find no merit to NBS’s appeal, and we affirm the judgment

granting PFS’s motion for partial summary judgment.

NBS’s Motion for Summary Judgment

NBS sought writs from the trial court’s denial of its Motion for Summary

Judgment. In its motion, NBS sought dismissal of PFS’s claims against it along

with a judgment on its counterclaim ordering PFS to pay it $662,269.70 in

liquidated damages. Because the judgment which we affirm in this appeal

dismissed NBS’s counterclaim, NBS’s writ application is moot and is hereby

denied.

13

DECREE

The judgment rendered in favor of Professional Fluid Services, LLC and

against Norsk Bronnservice AS and NBS Solutions AS, granting Professional

Fluid Services, LLC’s motion for partial summary judgment, striking Paragraph

7(d) from the 2012 Exclusive Marketing Agreements, and dismissing the

counterclaim filed by Norsk Bronnservice AS and NBS Solutions AS, is affirmed.

NBS’s application for supervisory writs is denied. All costs of this appeal and writ

are assessed against Norsk Bronnservice AS and NBS Solutions AS.

AFFIRMED. WRIT DENIED.

14

Conery, J., dissents and assigns reasons.

I respectfully dissent. In my view, this case is not appropriate for summary

judgment.

The trial court and the majority found ambiguity in Section 7(d) of the

contract based largely on the testimony of plaintiff-respondent’s Certified Public

Accountant. In doing so, in my view the trial court and the majority improperly

weighed the evidence and made factual findings that are in dispute. I would find

that there are genuine issues of material fact as to the intent of the parties in the

interpretation of Section 7(d).

In considering a motion for summary judgment, the court cannot “consider

the merits, make credibility determinations, evaluate testimony[,] or weigh

evidence.” Prop. Ins. Ass’n of La. v. Theriot, 09-1152, p. 3 (La. 3/16/10), 31 So.3d

1012, 1014 (quoting Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, p. 11

(La. 4/12/05), 907 So.2d 37, 48). Additionally, although “summary judgments are

now favored, factual inferences reasonably drawn from the evidence must be

construed in favor of the party opposing the motion, and all doubt must be resolved

in the opponent’s favor.” Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775

So.2d 1049, 1050.

I would reverse the summary judgment and remand the case to the trial court

for a full trial on the merits.

15