                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     February 25, 2004

                         _______________________                Charles R. Fulbruge III
                                                                        Clerk
                               No. 02-41373
                         _______________________


                   WALSH HEALTHCARE SOLUTIONS INC.,

              Plaintiff-Counter Defendant-Appellee/Cross-Appellant,

                                   versus

                        AMERISOURCE CORPORATION,

                Defendant-Counter Claimant-Appellant/Cross-Appellee.



           Appeals from the United States District Court
                 for the Eastern District of Texas
                          No. 5:00-CV-135


Before JONES, MAGILL* and SMITH, Circuit Judges.

PER CURIAM:**

           Walsh     Healthcare     Solutions,     Inc.    (“Walsh”)      sued

AmeriSource Corporation (“AmeriSource”) seeking lost profits under

Department of Veteran Affairs (“VA”) pharmaceutical prime vendor

(“PPV”) contracts . Both Walsh and AmeriSource appeal the district

court’s order granting and denying various portions of each party’s

motion for summary judgment.          Because the express terms of a



     *
            Circuit Judge of the United States Court of Appeals for the Eighth
Circuit, sitting by designation.
     **
            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opinion should not be published and is not precedent except under the limited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.
settlement agreement entered into by the parties bars each claim

raised by Walsh and AmeriSource, we reverse and remand.

                                  BACKGROUND

             In 1993, Walsh and AmeriSource separately entered into

PPV contracts with the VA.            AmeriSource’s PPV contract covered

several geographic regions, while Walsh’s PPV contract covered only

the South Central region.1        The contracts both lasted for one year,

with four optional one-year extensions. Because the VA invoked all

the extensions, the contracts were set to expire in September 1998.

             Approximately one year after the parties entered into

their      PPV   contracts,    the    VA       introduced    a   new    mail-order

prescription refill system.          Rather than having out-patient phar-

macies fill      these   prescriptions,         the   VA   formed   a   network   of

government-run Consolidated Mail Outpatient Pharmacies (“CMOPs”) to

handle all mail-order prescription refills. The medical facilities

in the South Central region, which belonged to Walsh under its PPV

contract, were assigned to CMOPs in AmeriSource’s territory.                  As a

result, AmeriSource became the sole CMOP supplier in the South

Central region and Walsh lost a significant portion of the business

for which it had contracted.

             In December 1995, Walsh and AmeriSource signed a letter

agreement (“December Agreement”), which provided that Walsh would

supply certain “mainstream” pharmaceuticals to one particular CMOP

     1
             Walsh received the PPV contract as part of a small-business set-aside
program.

                                           2
on a regular basis and act as a back-up supplied to other CMOPs.

The parties hoped that the arrangement would allow Walsh to recover

its lost sales volume. By November 1996, however, Walsh claimed an

$8.5 million deficit.    As a result, AmeriSource agreed to compen-

sate Walsh for its lost profits, which would be calculated based on

an   agreed-upon   formula.   Walsh   began   submitting   invoices   to

AmeriSource on a regular basis, and AmeriSource paid each invoice

in full, though the payments were sometimes delayed.

           As the PPV contract term neared its end, the VA realized

it was not prepared to enter into new PPV contracts and signed one-

page interim contracts (“First Interim Contract”) with both Walsh

and AmeriSource. The First Interim Contracts were set to expire in

March 1999.   During the First Interim Contract term, Walsh con-

tinued to submit invoices to AmeriSource.        In fact, AmeriSource

paid Walsh $394,161 for the period of October to December 1998.

Walsh later sought compensation in the amount of $404,481 for the

period of January to March 1999, which AmeriSource never paid.

           Meanwhile, on December 28, 1998, the VA awarded a new PPV

contract to AmeriSource that covered the entire country.         Walsh

filed a bid protest with the General Accounting Office (“GAO”) on

January 19, 1999, and argued that the VA had failed to adhere to

the proper procedures when awarding the new PPV contract.         As a

result of the bid protest, the VA entered into a second set of

interim contracts (“Second Interim Contracts”) with Walsh and



                                  3
AmeriSource that would last until June 30, 1999.                The GAO ulti-

mately denied Walsh’s bid protest on April 28, 1999.

              In May 1999, Walsh filed suit against the VA in federal

district court.      AmeriSource intervened in the suit as a defendant

to protect the contract award.          In July 1999, Walsh, AmeriSource,

and the VA entered into a settlement agreement that accomplished

the following: (1) Walsh’s Second Interim Contract with the VA

would be extended an additional 92 days and would end in September

1999; (2) AmeriSource’s new PPV contract would become effective on

October 1, 1999; and (3) the parties entered into a release of

claims.

              In April 2000, Walsh sued AmeriSource in Texas state

court, claiming that AmeriSource failed to compensate it for lost

profits through March 1999, relying on theories of express and

implied contract, third-party beneficiary status, and promissory

estoppel.      AmeriSource removed the case to federal district court

and   filed    conversion    and   unjust   enrichment    counterclaims    for

$394,161, which AmeriSource alleged it mistakenly paid to Walsh for

lost profits from October to December 1998. Walsh then amended its

complaint to add a claim for lost profits through September 1999,

when the Second Interim Contract expired.

              On cross motions for summary judgment, the district court

held that      (1)   the   settlement   agreement   did   not   preclude   the

parties’ claims; (2) the December Agreement between Walsh and

AmeriSource expired in September 1998; and (3) the parties’ actions

                                        4
gave rise to an implied contract throughout the duration of the

First Interim Contract.         The district court denied Walsh’s motion

for summary judgment on express contract grounds, but granted

Walsh’s motion on implied contract grounds only for the period of

October 1998 to March 1999.2       Thus, AmeriSource owed Walsh its lost

profits of $404,481 for the second half of the First Interim

Contract term, or January to March 1999, plus attorneys’ fees.

Consequently, AmeriSource’s cross-motion for summary judgment for

conversion and unjust enrichment was denied. Finally, the district

court denied Walsh’s motion for summary judgment on promissory

estoppel.      Both parties appealed.

                                  DISCUSSION

              We review de novo a district court’s decision to grant or

deny summary judgment. Patterson v. Mobil Oil Corp., 335 F.3d 476,

487 (5th Cir. 2003).        “Under Texas law, summary judgment may be

granted if the terms of a contract are not ambiguous, such that

they   ‘can    be   given   a   certain       or   definite   legal   meaning   or

interpretation.’”      Petula Assocs., Ltd. v. Dolco Packaging Corp.,

240 F.3d 499, 502 (5th Cir. 2001) (quoting Coker v. Coker, 650

S.W.2d 391, 393 (Tex. 1983)). A district court’s interpretation of

an unambiguous contract is a question of law subject to de novo

review.    Guidry v. Halliburton Geophysical Servs., Inc., 976 F.2d

938, 940 (5th Cir. 1992).          Because a settlement agreement is a

      2
            The district court denied Walsh’s motion for summary judgment for the
period of the Second Interim Contract and its extension to September 1999.

                                          5
contract, its interpretation is also subject to de novo review.

Id.

            AmeriSource     argues    that   the   plain    language    of   the

settlement agreement prevents the parties from asserting the claims

in this suit.3        Conversely, Walsh argues that the settlement

agreement was never intended to preclude claims pertaining to the

First Interim Contract.       The settlement agreement, signed by Walsh

and AmeriSource as well as the government, provides that

      Any and all damages, expenses, costs and/or attorney fees
      of any kind arising from or associated with the bidding
      on the solicitation at issue, the award, the protest, the
      proceedings before the VA, the proceedings before the
      GAO, the extensions of Walsh’s contract, the delay in
      implementation of the AmeriSource contract, and this
      court action, shall be borne by the party incurring the
      same . . . . This release specifically includes, but is
      not limited to, any claims for lost profits, bid
      preparation costs, attorneys fees and expenses relating
      to any administrative or judicial proceedings . . . .

(emphasis added).       Finally, the settlement agreement contains a

release, which states that

      Each party hereby releases and forever discharges each
      and every other party from any claims, demands, or causes
      of action which were asserted or which could have been
      asserted   in    this   suit   and/or    the   underlying
      administrative proceedings, it being the intention of the
      parties that any and all issues concerning the bidding,
      solicitation and the awarding of the contract at issue
      . . . be and hereby are put to rest.

            The district court interpreted Texas law to require the

settlement agreement to “mention” the claim being released.                  The


      3
            AmeriSource candidly states that, should this court accept its
argument, its claims for conversion and unjust enrichment would also be precluded
by the settlement agreement.

                                       6
court accordingly held that the settlement agreement pertained only

to the “extension of the VA’s PPV contract with Walsh.”                    The

court’s statement alone mischaracterizes Texas release law.               As we

have previously noted, “[w]e are satisfied that ‘mentioning’ does

not require particularized enumeration or detailed description,

only   that    the   claim    being   released   come   within   the   express

contemplation of the release provision when viewed in context of

the contract in which the release provision is contained . . . .”

Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 255 (5th Cir.

2000) (citing Mem’l Med. Ctr. of E. Tex. v. Keszler, 943 S.W.2d

433, 435 (Tex. 1997); Victoria Bank & Trust Co. v. Brady, 811

S.W.2d 931, 938-39 (Tex. 1991); Keck, Mahin & Cate v. Nat’l Union

Fire Ins. Co. of Pittsburgh, 20 S.W.3d 692, 698 (Tex. 2000)).

              In   this    case,   several   factors    indicate   that    the

settlement agreement and release cover the period beginning in

October 1998 with the First Interim Contract and continuing through

the end of the Second Interim Contract in September 1999.               First,

the settlement agreement specifically mentions the “extensions” of

Walsh’s contract.         Walsh argues that “extensions” merely refers to

the settlement agreement’s 92-day extension of the Second Interim

Contract.      However, this argument is belied by Walsh’s express

contract theory.          Walsh argues separately to this court that the

December Agreement between AmeriSource and Walsh was expressly

incorporated into both the First and Second Interim Contract, and

therefore, that AmeriSource should be forced to compensate Walsh

                                        7
for its     lost   profits   through   September   1999.     This    argument

implicitly assumes that the First and Second Interim Contracts are

seamless extensions of Walsh’s PPV contract. We are persuaded that

the term “extensions” in the settlement agreement refers to each

extension     of   Walsh’s   contract,     including   the   First    Interim

Contract.

            Second, the settlement agreement releases “causes of

action which were asserted or which could have been asserted in

this suit.”    When AmeriSource intervened in the suit between Walsh

and the VA, both parties had an opportunity to assert the causes of

action now raised in this suit.        Walsh sent AmeriSource an invoice

for the January to March 1999 period in June 1999, one month after

initiating its suit and one month before signing the settlement

agreement.     Thus, Walsh could have asserted its claim for those

lost profits against AmeriSource.          In addition, summary judgment

evidence illustrates that executives at AmeriSource became aware of

their allegedly mistaken payment to Walsh in January 1999.             Thus,

this claim also existed and could have been asserted.

                                CONCLUSION

            Because the settlement agreement entered into by Walsh

and AmeriSource covers the period of time beginning with the First

Interim Contract in October 1998 and extending through September

1999, the parties’ claims in this case are barred.           Consequently,

we REVERSE the district court’s denial of AmeriSource’s summary



                                       8
judgment motion with respect to the settlement agreement, REVERSE

the district court’s award of lost profit to Walsh for the period

of January to March 1999, REVERSE the award of attorney’s fees to

Walsh, and REMAND the case for entry of take-nothing judgment for

both parties.

          REVERSED and REMANDED.




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