                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS            October 3, 2003
                           FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk
                           No. 02-11002


                       ROBERT D. DICKERSON,

                              Plaintiff-Appellant, Cross-Appellee,

                               versus

                       NEW CENTURY ENERGIES,

                              Defendant-Appellee, Cross-Appellant.


           Appeal from the United States District Court
                for the Northern District of Texas
                           (2:98-CV-408)



Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Robert D. Dickerson was an employee of Southwestern Public

Service Company (SPS) before it merged with New Century Energies

(NCE).   Pre-merger, Dickerson entered into an employment agreement

with SPS; it is undisputed that NCE must perform under it.

     For the bench trial at issue, findings of fact are reviewed

for clear error; conclusions of law, de novo.      E.g., Kona Tech.

Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir. 2000).




     *
      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this opinion should not be published and is not precedent except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.
As hereinafter discussed, and essentially for the reasons given by

the district court, there was no reversible error.

      For starters, concerning NCE’s cross-appeal, the agreement is

not governed by ERISA.

      The agreement provided that Dickerson’s base salary increases

would be “substantially consistent” with those awarded other key

employees “in the ordinary course of business”.                Dickerson claims

he did not receive increases as were provided to other such

employees, namely Helton.         First, NCE’s counsel’s closing argument

statements regarding whether Helton’s raises were in the ordinary

course of business did not constitute a judicial admission:                   the

statements were not a clear concession; they did not prejudice how

the case was litigated. Second, the district court did not clearly

err in finding that Helton’s raise was not in the ordinary course

of business, given that Helton changed positions within the company

and   assumed     substantially    more      responsibility.      Finally,    the

district court did not clearly err in finding that Dickerson should

have received a raise of 12.5 percent, followed by one of 17.78

percent, the same percentages as key employee Wilks.

      For   the    contention     that       the   district   court   erred   in

calculating damages for the incentive portion of the agreement,

that portion provided that compensation and benefits to Dickerson

be, in the aggregate, at least as favorable as the most favorable

compensation provided other key employees.             The district court did


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not clearly err in excluding the stock option awards provided

Helton, because there was no requirement that the benefits to

employees be equal or even similar.   Moreover, the district court

did not clearly err in finding that Dickerson was entitled to stock

options based on the same percentage as used for key employee

Ridings, because he had a position similar to Dickerson.

                                                       AFFIRMED




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