Revised April 5, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-30871
_____________________
BROADWING COMMUNICATIONS INC, formerly
known as Network Long Distance Inc
Plaintiff - Appellant
v.
GENE W HARRIS
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(00-CV-1125)
_________________________________________________________________
April 3, 2002
Before KING, Chief Judge, and GARWOOD and HIGGINBOTHAM, Circuit
Judges.
PER CURIAM:*
Plaintiff-Appellant Broadwing Communications, Inc.
(“Broadwing”) appeals the summary judgment granted by the
district court in favor of Defendant-Appellee Gene W. Harris. We
agree with Harris that the district court correctly set aside 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this opinion should not be published and is not precedent except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.
entry of default in this case. We disagree, however, with the
district court’s decision to grant summary judgment in favor of
Harris on the basis that the indebtedness of LDC Consultants,
Inc. (“LDC”) to Network Advanced Services, Inc. (“Network”),
Broadwing’s predecessor in interest under the Resale Agreement
entered into on January 6, 1993 between LDC and Network, had
prescribed. The Release and Settlement Agreement entered into on
June 6, 1996, among LDC, Network and Quantum Communications,
another communications company, contained an explicit and
unambiguous acknowledgment that “LDC is indebted to [Network] (in
an amount in excess of the outstanding principal and unpaid
interest balance remaining on the Notes) pursuant to the terms of
[the Resale Agreement],” and the release and settlement was
specifically described as “partial.” Within the four corners of
the Release and Settlement Agreement, there is nothing to suggest
that LDC did not owe Network more than the $237,114.48 (the
unpaid balance on the Notes) that was the subject of the partial
release. The district court erred in using the extrinsic (i.e.,
parol) evidence presented in the deposition of Harris to vary the
terms of the unambiguous Release and Settlement Agreement. See
LA. CIV. CODE ANN. art. 3073 (West 1994); Brown v. Drillers, Inc.,
93-1019 (La. 1/14/94), 630 So. 2d 741, 746-48.
We leave to the district court on remand the effect of our
conclusion about the Release and Settlement Agreement on
prescription, as well as any question that may exist as to
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whether LDC’s indebtedness may have prescribed on some basis
apart from the construction of the Release and Settlement
Agreement.
The judgment of the district court is REVERSED and the case
is remanded to the district court for further proceedings
consistent with this opinion. Costs shall be borne by Harris.
REVERSED.
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