UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PREMIER SIGNATURES INTERNATIONAL,
INCORPORATED,
Plaintiff-Appellant,

v.
                                                                  No. 98-2456
FELD ENTERTAINMENT PRODUCTIONS,
INCORPORATED, d/b/a Ringling Bros.
and Barnum & Bailey Circus,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-98-2-A)

Argued: May 6, 1999

Decided: June 25, 1999

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: James Warren Hundley, BRIGLIA & HUNDLEY, P.C.,
Fairfax, Virginia, for Appellant. John A.C. Keith, BLANKINGSHIP
& KEITH, P.C., Fairfax, Virginia, for Appellee. ON BRIEF: David
J. Gogal, BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Premier Signatures International, Incorporated, challenges the dis-
trict court's entry of summary judgment against it in its diversity
action for breach of contract against Feld Entertainment, Incorpo-
rated. We affirm.

I.

The facts in this case are essentially undisputed. Appellee Feld
Entertainment, Incorporated ("Feld"),1 operates a number of entertain-
ment properties, including the Ringling Bros. and Barnum & Bailey
Circus. Beginning around 1985, Feld sought a corporate sponsor to
serve as the "title" sponsor for the circus. To that end, Allen Bloom,
vice president of Feld, contacted Bud Stanner, senior vice president
of International Management Group (IMG). IMG agreed to assist Feld
in finding a title sponsor, in return for a commission of approximately
20% on any subsequent sponsorship deal. In the following few years,
IMG successfully negotiated successive sponsorship agreements with
Ocean Spray and Proctor & Gamble. However, in each case, the spon-
sors chose not to renew their respective agreements.

After Proctor & Gamble terminated its sponsorship agreement,
IMG began looking for another sponsor. Because Feld's agreement
with IMG was non-exclusive, Feld also enlisted the assistance of Cor-
porate Entertainment Productions (CEP), a joint venture by Young &
Rubicam, an advertising agency, and appellant Premier Signatures
International, Incorporated ("Premier"). At approximately the same
_________________________________________________________________
1 The corporate predecessor of Feld Entertainment, Incorporated, was
Irvin Feld and Kenneth Feld Productions, Incorporated. For purposes of
this opinion, we use the shorthand "Feld" to refer to both companies
interchangeably.

                    2
time, both IMG and CEP told Bloom that they were working on
obtaining an agreement from Sears to sponsor the circus.2 As negotia-
tions between IMG, CEP, and Sears were proceeding, Bloom worked
out separate oral agreements with IMG and CEP for each company
to split the commission should Sears sign a sponsorship agreement
with Feld. Specifically, IMG agreed to take a 12% commission, and
CEP agreed to a 7.5% commission. The agreement between Feld and
IMG was subsequently memorialized in a letter, which Bloom ini-
tialed; the agreement between Feld and CEP was never reduced to
writing.

Bloom recalls that, at the time of the negotiations, he told both
IMG and CEP that, if Sears signed with Feld and subsequently
renewed the sponsorship agreement, "we [Feld] would take care of
them [IMG and CEP] on a renewal basis and we would negotiate a
renewal fee with them." J.A. at 49 (deposition of Allen Bloom). Eric
Weisman, executive vice president of CEP and the individual at CEP
with whom Bloom negotiated, similarly recalls the conversation
between him and Bloom, saying that Bloom said, "if we [Feld] have
a renewal, you [CEP] will get something and I'll determine it at that
time." Id. at 108-09 (deposition of Eric Weisman). According to
Bloom, it was understood that any renewal commissions would be
lower than the original commissions. See id. at 50 (deposition of
Bloom). Weisman further recollects that Bloom told him that CEP
would be compensated in the same proportion to IMG as it was being
compensated for the original sponsorship agreement. See id. at 109-10
(deposition of Weisman).

In November 1994, Sears signed a sponsorship agreement with
Feld for $5.2 million. The agreement -- unlike Feld's previous spon-
sorship agreements with Ocean Spray and Proctor & Gamble -- con-
tained no explicit provision for renewal. In September 1996, Feld,
without any assistance either from IMG or from CEP, which had
since disbanded, negotiated a renewal of the sponsorship arrangement
with Sears for another two years. IMG and Premier, which had suc-
_________________________________________________________________
2 Both IMG and CEP had preexisting relationships with Sears. IMG
had performed consulting work for Sears, and Young & Rubicam, one
of the two partners behind the CEP joint venture, was Sears' advertising
agency.

                   3
ceeded to CEP's contractual rights as part of the CEP dissolution
agreement, then sought commissions from Feld for Sears' renewal,
based on their prior conversations with Bloom, who had since left
Feld. IMG, with whom Feld had a continuing professional relation-
ship, sought a 12% commission for both years of the renewal, and a
similar commission for all future renewals; after some wrangling,
Feld agreed to pay IMG a 6% commission for two years, but no fur-
ther commissions. Feld refused to pay a renewal commission to Pre-
mier, with whom it was no longer doing business. Premier then
commenced this action against Feld, alleging that Feld's refusal to
pay a renewal commission constituted a breach of express and
implied contract. Both parties moved for summary judgment; the dis-
trict court granted summary judgment to Feld and denied it to Pre-
mier. Premier now appeals.

II.

On appeal, Premier renews its claims that Feld's refusal to pay a
renewal commission constituted a breach of express and implied con-
tract. We address each of these claims in turn.

A.

Appellant first contends that Bloom bound Feld to an express oral
contract by promising Weisman that Feld would pay CEP a renewal
commission. We disagree.

Whether we accept Bloom's or Weisman's version of what Bloom
said to Weisman, it is clear that Bloom told Weisman two things:
first, that Feld would pay CEP some renewal commission if Sears
decided to renew its sponsorship arrangement, and second, that the
amount of that commission would be determined only after Sears so
decided. Assuming, without deciding, that any "contract" between
Feld and CEP would not be void for lack of consideration -- and in
view of the absence of any evidence that CEP promised to perform
any services to Feld in return for the renewal commission, we have
serious doubts on that score3-- we agree with the district court that
_________________________________________________________________
3 Indeed, Bloom's assertion that he told Weisman that "we would take
care of them on a renewal basis," and Weisman's assertion that Bloom

                   4
the agreement between Bloom and Weisman did not constitute an
enforceable contract because it was insufficiently certain as to at least
one material term: namely, the amount of the commission. "[A]n
agreement for service must be certain and definite as to . . . the com-
pensation to be paid, or it will not be enforced." Mullins v. Mingo
Lime & Lumber Co., 176 Va. 44, 50 (1940) (internal quotation omit-
ted); accord Progressive Constr. Co. v. Thumm, 209 Va. 24, 30-31
(1968); Smith v. Farrell, 199 Va. 121, 127-28 (1957); Parker v.
Murphy, 152 Va. 173, 183 (1929). In Mullins , the Virginia Supreme
Court concluded that a mere assertion that the defendant would "take
care of" compensating the plaintiffs, without more, was insufficient
to establish an express contract. See id. at 49. Similarly, in this case,
we conclude that Bloom's promise to Weisman -- either that Feld
would "take care of" CEP, or that CEP would"get something,"
depending on whose version of the conversation we accept -- is
insufficient, standing on its own, to establish an express contract.

Appellant additionally contends that, although the amount of the
commission was not specifically fixed, it was made sufficiently cer-
tain by virtue of Bloom's alleged promise to Weisman that CEP
would be compensated in the same proportion to IMG as it was being
compensated for the original sponsorship agreement. In the absence
of a term explicitly establishing the amount of compensation, a con-
tract must contain a sufficiently specific "method or formula . . . for
determining the amount payable" or be voided for uncertainty. Allen
v. Aetna Cas. and Surety Co., 222 Va. 361, 364 (1981). In this case,
even if Bloom did promise that CEP would be compensated in the
same proportion to IMG, the amount of compensation would still be
insufficiently certain because there is no evidence that Bloom and
Weisman discussed the percentage compensation that either CEP or
IMG would receive from a renewal by Sears. To the contrary, Bloom
explicitly told both CEP and IMG that the size of their renewal com-
missions would not even be negotiated until after Sears decided
_________________________________________________________________

told him that "you will get something and I 'll determine it at that time,"
both suggest that any renewal commission would be given by Feld not
in return for any services rendered, but almost as a gratuity, above and
beyond the contractual compensation provided in the form of the original
commission, for CEP's assistance in securing the original contract.

                     5
whether to renew its sponsorship agreement.4 Because the amount on
which the amount of compensation to CEP depended-- namely, the
amount of compensation to IMG -- was thus itself sufficiently inde-
terminate, we conclude that any contract between Feld and CEP was
void for uncertainty as to the material term of compensation.5

B.

Appellant next contends that Feld was bound by an implied oral
contract to pay CEP a renewal commission. Again, we disagree.

In order to obtain quantum meruit damages for breach of an
implied contract, a plaintiff must show that it performed some service
on the defendant's behalf for which it was entitled to compensation.
See, e.g., Hendrickson v. Meredith, 161 Va. 193, 203 (1933). In this
case, as the district court noted, see J.A. at 299, appellant introduces
no evidence that CEP performed any service for Feld in connection
with Sears' renewal of the sponsorship arrangement with Feld:
indeed, CEP had disbanded by the time of Sears' renewal, and appel-
lant -- unlike Young & Rubicam, the other partner behind the CEP
joint venture -- had no special access to Sears that would have
enabled it to assist Feld in securing a renewal. We therefore reject
appellant's implied-contract claim.
_________________________________________________________________

4 Such statements did not actually bind Feld to conduct such negotia-
tions, because it is well-established in Virginia that a mere agreement to
negotiate at some point in the future is not enforceable. See, e.g., Allen,
222 Va. at 363-64; Kay v. Professional Realty Corp., 222 Va. 348, 351
(1981).

5 The fact that Feld eventually paid what is arguably a "commission"
to IMG is irrelevant, because the only question before us is whether the
contract between Feld and CEP was sufficiently certain at the time at
which it was agreed: as the district court noted, subsequent, extrinsic
events cannot render an uncertain contract certain. In any event, Feld's
subsequent payment to IMG was not strictly speaking a "commission,"
but rather a settlement of IMG's similarly disputed claim to a commis-
sion.

                     6
CONCLUSION

The judgment of the district court is affirmed.

AFFIRMED

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