United States Court of Appeals

Fifth Circuit



## FILED

May 14, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-30578

JANE GALIANO; GIANNA, INC.,

Plaintiffs-Appellants,

VERSUS

HARRAH’S OPERATING COMPANY INC., HARRAH’S ENTERTAINMENT, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

00-CV-0071



### %

Before SMITH and BARKSDALE, Circuit Judges, and DUPLANTIER, District Judge



### %%

PER CURIAM:

Jane Galiano and Gianna, Inc. (collectively "Gianna" ) f i l ed suit against Harrah’s Entertainment

Company, Inc. and Harrah’s Operating Company, Inc. (collectively "Harrah’s")



### %

District Judge for the Eastern District of Louisiana, sitting by designation.



### %%

Pursuant to 5 t h Cir. R. 47.5, the court has determined that this opinion should not be published

and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4.2

asserting various claims, i n cluding claims arising out of a "Design Consulting Agreement" entered

into between Gianna and Harrah’s. The district court entered partial summary judgment against

Gianna on one of those claims, which seeks to enforce a settlement entered into between the parties,

related to the Design Consulting Agreement. Gianna appeals; we affirm.

In September 1995, Gianna and Harrah’s entered into a "Design Consulting Agreement ,"

under which Gianna agreed to create a national costume design collection for Harrah’s casinos. As

compensation Harrah’s agreed to pay Gianna a monthly fee as well as a design royalty on Giannadesigned garments. In December 1995, when negotiations to extend that agreement failed, the

agreement expired. A dispute arose concerning the fees and the royalties owed to Gianna under the

Design Consulting Agreement.

On May 6, 1996, a meet ing was held to attempt to settle the dispute. The meeting was

attended by Connie Albright and Jan Starnes on behalf of Harrah’s and by Scott Buhrer, Gianna’s

vice president, and Jane Galiano, Gianna’s president, on behalf of Gianna. A settlement was reached

at the meeting. Galiano left the meeting before it ended; it is not clear from the record whether the

settlement was reached prior to the time Galiano left the meeting.

The settlement agreement provided that Harrah’s would pay Gianna $7,500 before May 20,

1996, listed the garments for which no past or future royalties would be paid, and identified the

garments for which Harrah’s would pay royalt ies t o Gianna. The agreement contained a mutual

release of all claims arising under the Design Consulting Agreement. The agreement required no

further services by Gianna. Buhrer signed the agreement on behalf of Gianna.

On May 15 Harrah’s sent Gianna a check in the amount of $7,500 which Gianna negotiated.3

Approximately two weeks thereaf t er, Galiano, on behalf of Gianna, wrote the president of

Harrah’s, stating that Buhrer had no authority to enter into the settlement agreement and that the

settlement was "absolutely v o id." Sho rtly thereafter Harrah’s responded to Galiano’s letter,

assert ing that the settlement agreement was valid. On September 18 Gianna’s attorney wrote

Harrah’s, reiterating that the settlement agreement was void because Buhrer lacked authority to

execute it and proposing a new settlement of Gianna’s claims, which would have required Harrah’s

to pay an additional $500 ,000. Harrah’s attorney responded promptly that the May 6 settlement

agreement was valid and that Harrah’s would make no other settlement proposal. Nearly four years

elapsed before Gianna f

i led this suit, asserting claims against Harrah’s for damages for copyright

infringement, breach of the Design Consulting Agreement, unfair trade p ractices, and unj ust

enrichment, and seeking to enforce the settlement agreement which it had earlier repudiated.

The parti es filed cross-motions for partial summary judgment on the settlement agreement

claim. The district court grant ed Harrah’s motion, concluding that there was no valid settlement

agreement because Buhrer lacked the requisite express authority to enter into it on behalf of Gianna.

The district court also concluded that Gianna, having repudiated the settlement agreement by taking

t he position that Buhrer was not authorized to execute it, could not thereafter enforce it . The

district court granted Gianna’s motion to enter a final appealable judgment pursuant to Federal Rule

of Civil Procedure 54(b)

.

We review the district court’s grant of a motion for summary judgment de novo ; in doing so

we apply the same standards applicabl e to the di stri ct court. R oberts v. Energy Development

Corporation

, 235 F.3d 935, 938 (5 th Cir. 2000). Summary judgment is properly granted only when

there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter4

of law. Fed. R. Civ. Pro. 56(c). The evidence is viewed in the lightmost favorable to the nonmoving party. Daniels v. City of Arlington

, 246 F.3d 500, 502 (5 th Cir. 2001). There is no dispute

with respect to any material fact related to the claim dismissed by the district court; hence summary

judgment is appropriate.

It is undisputed that Louisiana law applies to this diversity case. The parties and the district

co urt discuss at length whether Article 2997 of the Louisiana Civil Code, which requires that a

mandatary h ave express authority to compromise a claim, applies in this case, and if so, whether

Buhrer had express authority to execute the settlement agreement. We need not address that issue;

assuming arguendo that the settlement agreement was valid Gianna cannot enforce it.

A compromise is "an agreement between two or more persons, who, for preventing or putting

an end to a lawsuit, adjust their differences by mutual consent, in the manner in which they agree on,

and which every one of them prefers to the hope of gaining, balanced by the danger of losing." La.

Civ. C. art. 3071. Clearly, one of the primary purposes of a settlement agreement is to put an end to

litigation. S ee Rivett v. State Farm Fire and Cas. Co.

, 508 So.2d 1356, 1359 (La. 1987). "A

contract which does not put an end to the dispute through mutual concessions cannot constitute a

compromise." Id. at 1361.

A compromise is abrogated by a breach of the agreement and cannot thereafter be enforced.

Midlo & Lehmann v. Katz

, 195 So.2d 383, 385 (La. App. 4 th Cir. 1967); Smith Construction Co

. v.

Brechtel

, 5 1 So.2d 643, 644 (La. App. Orleans 1951). The settlement agreement imposed upon

Gianna a primary obligation, to refrain from asserting thereafter any claims against Harrah’s under

the Design Cons ult ing Agreement. Almost immediately, Gianna not only disavowed Buhrer’s

authority to enter the agreement, but also failed to comply with the one obligation imposed upon it5

by the settlement agreement. Within one month after the settlement agreement was entered into, in

a let t er t o Harrah’s Gianna began to assert further claims under the consulting agreement: "the

lingering issue of

Harrah’s debt s and obligations owed to Gianna, Inc. pursuant to the terms and

conditions of

the . . . Design Consulting Agreement remains unresolved." Thereafter Gianna’s

law yer wrote to Harrah’s again repudiating the May 6 settlement agreement and again asserting

claims under the Design Consulting Agreement: "[i]n the spirit of compromise and settlement and

in an attem

pt t o avo id t he normal cost and unpleasant aspects of litigation, Gianna, Inc. is now

tendering two proposals for settlement of all claims by Gianna, Inc. against Harrah’s arising from the

. . . Design Consulting Agreement." As previously noted, both proposals required Harrah’s to pay

to Gianna an additional $500,000.

Because Gianna breac hed t he settlement agreement by continuing to urge claims against

Harrah’s under the Design Consulting Agreement, Gianna cannot enforce the settlement agreement.

We affirm the district court’s judgment.