United States District Court, S.D. Texas, Houston Division
SUMMARY JUDGMENT OPINION AND ORDER
STEPHEN WIN SMITH, UNITED STATES MAGISTRATE JUDGE.
matter is before the court on defendants' motion for
summary judgment (Dkt. 147).Having considered the parties'
submissions and the law, the motion is granted in part and
denied in part.
2013, PPD and MAKO Surgical Corp. entered into a Sales
Representative Agreement pursuant to which PPD would be the
exclusive sales representative for MAKO Restoris partial knee
and total hip replacement implant systems and related
accessories. The MAKO implants are designed to be used with
MAKO's RIO (Robotic Arm Interactive Orthopedic) system.
PPD also distributes products manufactured by Corin, USA, a
terminated the Sales Representative Agreement on October 13,
2014, citing violations of Section 4.1 of the Agreement
regarding PPD's responsibilities. Dkt. 160-6. PPD sued
defendants in February 2016 asserting claims for breach of
contract and tortious interference with PPD's business
relationships. Defendants now seek summary judgment on
judgment is appropriate if no genuine disputes of material
fact exist, and the moving party is entitled to judgment as a
matter of law. FED. R. ClV. P. 56(a). The party moving for
summary judgment has the initial burden of proving that there
are no genuine disputes of material fact for trial.
Provident Life & Accident Ins. Co. v. Goel, 274
F.3d 984, 991 (5th Cir. 2001). Dispute about a material fact
is "genuine" if the submitted evidence could lead a
reasonable jury to find for the nonmoving party. In re
Segerstrom, 247 F.3d 218, 223 (5th Cir. 2001). "An
issue is material if its resolution could affect the outcome
of the action." Terrebonne Parish Sch. Bd. v.
Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th
Cir. 2002). In determining whether a genuine dispute of
material fact exists, "[t]he evidence of the non-movant
is to be believed, and all justifiable inferences are to be
drawn in his favor." Anderson v. Liberty Lobby,
Inc., 411 U.S. 242, 255 (1986).
move for summary judgment on the grounds that (1) PPD cannot
establish damages as to either of its claims; and (2) PPD
cannot rely on violations of various federal and state
statutes that do not otherwise provide private causes of
action to satisfy an element of its tortious interference
move for summary judgment on PPD's breach of contract
claim solely on the basis of damages. Damages are a necessary
element of a breach of contract claim. David v. Texas
Farm Bur. Ins., 470 S.W.3d 97, 104 (Tex. App. - Houston
[T'Dist] 2015, no pet.). Under Texas law:
Damages must be established with reasonable certainty, not
mathematical precision. If the fact of damages has been
established, then the inability to calculate the exact amount
of damages is not fatal. If the best available evidence
affords a reasonable basis for the jury to calculate damages,
then recovery cannot be denied because the exact amount of
damages cannot be ascertained.
O &B Farms, Inc. v. Black, 300 S.W.3d 418, 422
(Tex. App. - Houston [14th Dist.] 2009, pet. denied)
(internal citations omitted).
contend that PPD has no evidence of damages because its
principal, Angie Domingues, is not qualified as an
expert. PPD does not have to offer expert
testimony on damages. Merritt Hawkins & Assoc, LLC v.
Gresham,861 F.3d 143, 153 (5th Cir. 2017); ERI
Consulting Engineers v. Swinnea,318 S.W.3d 867, 877
(Tex. 2010). Domingues is the sole member of PPD Enterprises,
LLC. She has personal knowledge of PPD's Sales
Representative Agreement, commissions, and business expenses.
Domingues testified in her deposition that damages would be
calculated based on the commissions PPD would have earned
through the end of the contract term. Dkt. 147-1 at 3-5. At
the time of her deposition Domingues had not calculated the
dollar amount of the damages, but she has now done
PPD has also identified the documents Domingues used to make
her calculation. See Dkt. 170 at 4-5.
Defendants' argument that Domingues failed to take into
account expenses in calculating PPD's ...