* Pursuant to 5TH CIRCUITRULE47.5,the court has determined that this opinion should

not be published and is not precedent except under the limited circumstances set forth in 5TH

CIRCUIT RULE 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 20, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10894

THE PARKER GROUP INC

Plaintiff-Appellant

v.

MICHAEL P BRYAN

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:05-CV-230

Before DAVIS, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

This appeal arises from a dispute between Plaintiff-Appellant The Parker

Group, Inc. (“Parker Group”) and Defendant-Appellee Michael P. Bryan

(“Bryan”) over the terms of a contract (the “Agreement”) that set forth the

conditions of Parker Group’s purchase of all the outstanding shares of American

Administrative Group, Inc. (“AAG”). At the time of the purchase, Bryan, who

held a majority of AAG’s shares, had negotiated for AAG to purchase Gallagher

Benefit Administrators, Inc. (“GBA”). As part of the Agreement, Parker Group
No. 06-10894

1 EBITDA stands for Earnings Before Interest, Taxes, Depreciation, and Amortization.

2

agreed to pay Bryan additional consideration should Parker Group successfully

complete the purchase of GBA under the terms negotiated by Bryan. Parker

Group ultimately purchased GBA and, therefore, owed the additional amount

to Bryan. 

Pursuant to the Agreement, Bryan was to receive Seller Note B, a

promissory note, for the amount owed to him by Parker Group. The amount of

Seller Note B was to be determined, in part, by using GBA’s Normalized

EBITDA1, which was to be calculated from GBA’s audited financial statements.

At the time the parties negotiated the Agreement, GBA’s audited financial

statements were not available, so the Agreement called for Seller Note B to be

issued based on the parties’ estimated numbers and automatically adjusted once

the audited financial statements became available. Seller Note B was issued

approximately two months after the parties signed the Agreement, and Parker

Group calculated GBA’s Normalized EBITDA at an amount that resulted in

Seller Note B being issued for over $7 million. Parker Group now seeks to

reduce the amount of Seller Note B by approximately $6 million based on GBA’s

audited financial statements. However, at the time Seller Note B was issued,

Parker Group was in possession of GBA’s audited financial statements and gave

indications that it based the $7 million amount on those statements. 

Parker Group filed a declaratory judgment action against Bryan, seeking

a declaration that the amount of Seller Note B should be reduced. The parties

filed cross-motions for partial summary judgment, and the district court ruled

in favor of Bryan and issued a judgment pursuant to Rule 54(b) of the Federal

Rules of Civil Procedure. Parker Group appealed to this court.

We have now reviewed the record and examined the parties’ arguments,

and we agree with Bryan’s position. Although the Agreement contemplated an
No. 06-10894

3

adjustmentto Seller Note B once GBA’s Normalized EBITDA could be calculated

from GBA’s audited financial statements,there is nothing in the Agreement that

prohibits the parties from making a final determination as to GBA’s Normalized

EBITDA prior to the issuance of Seller Note B if the financial statements are

available at that time. The record indicates that the financial statements were

available and that Parker Group relied on those statements in agreeing to the

$7 million Seller Note B. Consequently, we AFFIRM the judgment of the district

court.

AFFIRMED.