Robin v. Binion , 271 F. App'x 436 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 27, 2008
No. 07-30151 Charles R. Fulbruge III
Clerk
AUGUST ROBIN; ROBERT PIPER; CASSANDRA PIPER; WENDELL
PIPER
Planitiffs-Appellants
v.
JACK B BINION; HORSESHOE ENTERTAINMENT; HORSESHOE
GAMING HOLDING CORP; NEW GAMING CAPITAL PARTNERSHIP
Defendants-Appellees
Consolidated With
Case No. 07-30156
AUGUST ROBIN
Plaintiff-Appellant
v.
JACK B BINION; HORSESHOE ENTERTAINMENT; HORSESHOE
GAMING HOLDING CORP; NEW GAMING CAPITAL PARTNERSHIP
Defendants-Appellees
Consolidated With
Case No. 07-30159
ROBERT PIPER; CASSANDRA PIPER; WENDELL PIPER
Plaintiffs-Appellants
v.
No. 07-30151
JACK B BINION; HORSESHOE ENTERTAINMENT; HORSESHOE
GAMING HOLDING CORP; NEW GAMING CAPITAL PARTNERSHIP
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Louisiana
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellants August Robin, Robert Piper, Cassandra Piper, and Wendell
Piper appeal the district court’s grant of summary judgment in favor of Appellee
Jack Binion, the general partner of Horseshoe Entertainment, LP (“Horseshoe
Entertainment”). We AFFIRM.
I.
In April 1993, Horseshoe Entertainment was formed to operate the
Horseshoe Casino in Bossier City, Louisiana. The general partner–owning an
89% interest–was New Gaming Capital Partnership (“NGCP”). Jack Binion held
a controlling interest in NGCP. The limited partners of Horseshoe
Entertainment were Appellants: August Robin (3%), Wendell Piper (0.5%),
Cassandra Piper (4.58%), and Frank Pernici (2.92%).1 Appellant Robert Piper,
the husband of Cassandra, claims standing by virtue of the marital community.
In 1995, Binion reorganized his various casino holdings and reached a
merger agreement with another casino operator. The terms of their agreement
required Binion to buy out Robin and the Pipers before May 31, 1999, or the
*
Pursuant to 5TH 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
Pernici sold his interest and is not a party to this case.
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No. 07-30151
merger would be cancelled, and Binion would forfeit a $10 million deposit.
Accordingly, Binion approached Robin and the Pipers about selling their limited
partnership interests in Horseshoe Entertainment.
On April 21, 1999, Robin and the Pipers signed separate agreements with
Binion and the affiliated Horseshoe entities to sell their limited partnership
interests (the “Buyout Agreements”). The Buyout Agreements contained a
participation clause providing that:
If, within five years of the date of this Agreement, the Binion Family
Interests collectively sells in excess of a 50% interest in Horseshoe
Gaming, LLC, for a purchase price consisting of cash, debt or
publicly traded securities or any combination thereof having a value
of in excess of $5,350,000 per 1% interest sold, then [the Pipers and
Robin] shall receive in the aggregate, a cash sum equal to 2¼% of
the value of the sale in excess of $5,350,000 per 1% interest sold
(such cash sum equal to 2¼% being the “Participation Payment”).
(emphasis added). The Buyout Agreements also included a release and waiver
provision, providing that each Appellant: “hereby release[s], discharge[s] and
waive[s] any and all claims, causes of action, and demands of any kind or nature
whatsoever that now exist, whether known or unknown, which he may have
against [Appellees] . . . .” In exchange for this provision, the Pipers and Robin
were each paid $500,000. However, the Louisiana Gaming Control Board (the
“Board”) never officially approved the Buyout Agreements.
In 1999, the various Horseshoe entities were reorganized into a Delaware
corporation–Horseshoe Gaming Holding Corporation (“Holding Corp.”). On
September 10, 2003, Holding Corp. entered into a Stock Purchase Agreement
with Harrah’s Entertainment, Inc. (“Harrah’s”). Section 1.2 of the Stock
Purchase Agreement provided that: “[T]he purchase and sale of [Holding Corp.’s]
Shares (the ‘Closing’) shall take place . . . on the third business day after the
satisfaction or . . . waiver of the conditions set forth in Article VII,” which
included approval by the relevant government authorities.
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No. 07-30151
Around September 2003, Binion told Robert Piper, “that [the sale to
Harrah’s] will trigger the [participation] clause, and I will pay you your money.”
However, the Federal Trade Commission did not approve the deal until early
June 2004. Because this was more than five years after the execution of the
Buyout Agreements (April 21, 1999), Binion determined that the participation
clause of the Buyout Agreements was no longer effective and refused to pay the
Pipers or Robin.
Appellants filed suit in Louisiana state court, alleging fraud and breach
of fiduciary duties, rescission, misrepresentation, detrimental reliance, and
statutory deceptive trade practices. The case was removed to federal court based
on diversity jurisdiction. Appellees moved for summary judgment, and the
district court granted summary judgment on all of Appellants’ claims, except for
the Pipers’ claim for revocation of “comp privileges.”2 The court also ruled in
favor of Horseshoe Entertainment on a counterclaim it asserted against Robin
for a $550,000 debt. Appellants timely appealed.
II.
We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court. Atkins v. Hibernia Corp., 182
F.3d 320, 323 (5th Cir. 1999).
III.
A. The Pipers’ Claims
The Pipers argue that the district court erred in finding that: (1) the
Buyout Agreement’s release and waiver provision barred the fraud and breach
of fiduciary duty claims; (2) the fraud and breach of fiduciary duty claims fail on
the merits; (3) the Pipers and Binion did not establish an oral contract to buy out
2
The district court granted the Pipers’ “Motion to Dismiss Comp Claim with a
Reservation of Right to Pursue Appeal of Dismissed Claims.” Thus, this appeal is brought
pursuant to a final judgment.
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No. 07-30151
the participation clause; and (4) the Buyout Agreements were enforceable
despite Binion’s failure to obtain official approval from the Board.
The Pipers’ arguments lack merit. First, given the broad language of the
release and waiver provision–as well as the substantial monetary consideration
paid–the provision remains in effect and bars the Pipers’ fraud and breach of
fiduciary duty claims. See Ingram Corp. v. Jay Ray McDermott & Co., 698 F.2d
1295, 1312 (5th Cir. 1983) (“When a release provides that ‘any and all claims,’
‘past, present, or future’ are to be extinguished, a court is required to enforce its
provisions both as to known and unknown claims.”). Second, the Pipers fail to
establish that Binion breached any fiduciary duties during the Buyout
Agreement negotiations. Thus, even if the Pipers’ claims were not barred, they
fail on the merits. Third, Louisiana law requires a witness to prove the
existence of an oral contract.3 The Pipers do not fulfill this requirement because
the only witness they present–Binion–disavows the existence of said oral
contract. Fourth, regarding rescission of the Buyout Agreements, the Pipers and
the Board consistently acted as if the agreements were valid, and, therefore, we
agree with the district court’s disposition of the Pipers’ claims.
B. The Stock Purchase Agreement Did Not Trigger the Participation Clause
Both Robin and the Pipers argue that the district court erred in finding
that the Stock Purchase Agreement with Harrah’s did not trigger the
participation clause of the Buyout Agreements. The district court found that: (1)
the participation clause requires an actual completed sale; (2) the Stock
Purchase Agreement was a contract to sell, not a contract of sale; and (3) the sale
occurred outside of the participation clause’s five-year window. We agree with
3
LA. CIV. CODE ANN. art. 1846 provides that “[i]f the price or value is in excess of five
hundred dollars,” an oral contract “must be proved by at least one witness and other
corroborating circumstances.”
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No. 07-30151
the district court’s analysis. We find that the participation clause was not
triggered because the sale to Harrah’s occurred after the five-year period.
C. Counterclaim Against Robin
Finally, we agree with the district court that Horseshoe Entertainment
prevails on its $550,000 counterclaim against Robin. There is no need to vacate
the judgment.
IV.
Accordingly, the judgment of the district court is AFFIRMED.
6