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*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-2164
Summary Calendar
PACE CONCERTS, INC.,
Plaintiff-Appellee
Cross-Appellant,
VERSUS
JAMES TODD SMITH a/k/a LL COOL J,
Defendant-Appellant,
Cross-Appellee.
Appeals from the United States District Court
For the Southern District of Texas
CA H 91 2218
(March 25, 1993)
Before HIGGINBOTHAM and SMITH and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:*
I. BACKGROUND
In 1989, James Todd Smith ("Smith"), a nationally known
musician who performs under the stage name of "LL Cool J," entered
into negotiations with G-Street Express, Inc. ("G-Street"), a
concert promoter, for the staging and promotion of Smith's 1989

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1 We refer to G-Street and Pace separately for purposes of
clarity; however, Pace, as successor to G-Street, possesses all
of the rights that G-Street had under the Contract.
2
"Nitro Tour." Rush Productions, Inc., Smith's management company,
represented Smith in the negotiations. On April 12, 1989 Smith and
G-Street executed an agreement for a seven week tour.
Pursuant to the agreement, G-Street advanced sums to Smith to
cover initial tour expenses incurred before the first ticket
revenues were realized. G-Street advanced a total of $337,000 to
Smith and his representatives, all of which was funded by Pace
Concerts, Inc. ("Pace"). G-Street was to recoup, over the life of
the concert tour, the total amount advanced; and additionally, was
to receive a certain percentage of tour receipts and a commission
on expenses it incurred. Smith was to receive certain guaranteed
payments and a percentage of tour receipts.
On August 28, 1989 representatives of Pace, Smith and G-Street
attended a meeting in Houston, Texas. The "Nitro Tour" was not the
financial success that the parties had envisioned. As only two
weeks remained on the tour and a large amount of the advance had
not been recovered, G-Street sought to discuss both a method for
settling the deposit deficit and plans for the possible
postponement of the tour. The settlement agreement reached during
the August 28 meeting was memorialized in a contract dated
September 3, 1989 (the "Contract"). That document, signed on
September 19, 1989, forms the basis for this action. G-Street
assigned all of its rights under the Contract to Pace on May 25,
1990.1

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3
Under the terms of the Contract the parties agreed to extend
the tour beyond the final concert date of September 3, 1989. Smith
was to work additional performance dates to be mutually agreed upon
by the parties, and G-Street was to forestall immediate collection
of the deposit balance in an effort to recoup the deposit balance
through future tour receipts. At the time of the meeting, G-Street
had recovered $103,444.58 of the advance; consequently, the parties
fixed the amount Smith owed at $233,555.42. The parties agreed
that if Smith failed or refused to perform or engaged other
promoters, the $233,555.42 would be payable immediately.
Unfortunately, after September 3, 1989, Smith did not have any more
performances. Pace, alleging that Smith failed to perform when
requested and that Smith engaged another tour promoter, demanded
the return of the advance money. When Smith failed to respond to
Pace's requests, Pace initiated this action for the return of the
advance.
After Smith filed his Answer to Pace's First Amended Original
Complaint, Pace filed a motion for summary judgment. The district
court granted Pace's motion, awarding to Pace the principal deposit
balance of $233,555.42, prejudgment interest, postjudgment interest
and attorneys fees.
Smith appeals from the granting of Pace's motion for summary
judgement and the denial of his own cross motion for summary
judgment. Smith presses his appeal on three fronts: (1) He asserts
that the Contract is ambiguous, (2) he argues that his affirmative
defenses of duress and lack of consideration preclude the entry of

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summary judgment, and (3) he contends that he has not breached the
Contract. Smith also appeals from the district court's denial of
his cross-motion for summary judgment.
Pace appeals from the district court's calculation of
prejudgment interest, asserting that the proper rate of interest is
10% and not the 6% figure used by the district court.
II. STANDARD OF REVIEW
This court reviews the grant of a summary judgment de novo,
using the same criteria as the district court. Walker v. Sears,
Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988). Summary judgment
is proper "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law." Southmark Properties v. Charles House Corp., 742
F.2d 862, 873 (5th Cir. 1984). When a proper motion for summary
judgment is made, a nonmoving party who wishes to avoid judgment by
establishing a factual dispute must set forth specific facts
showing that there is a genuine issue for trial. Fed. R. Civ. P.
56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
III. ANALYSIS
A. Contract Ambiguity
Smith initially argues that the district court's grant of
summary judgment was improper because the Contract did not obligate

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2 The Contract states the following: In the event that,
(i) the Artist [Smith] fails or refuses to perform; or (ii) the
Artist engages another Tour promoter, the unrecouped balance of
the deposit (as determined on September 3, 1989) will be payable
to Promoter [G-Street]." Tr. at 186.
5
Smith personally to repay the deposit, or alternatively, that the
Contract was ambiguous with respect to any such obligation.2
The interpretation of contracts is a question of law which
this court reviews de novo. United States for the Use and Benefit
of Straus Systems, Inc. v. Assoc. Indemn. Co., 969 F.2d 83, 85 (5th
Cir. 1992). The district court held that the Contract was not
ambiguous. The principles guiding our determination of contract
ambiguity are well settled. A contract is not ambiguous merely
because the parties disagree upon the correct interpretation or
upon whether it is reasonably open to just one interpretation.
D.E.W., Inc. v. Local 93, Laborers Int'l Union, 957 F.2d 196, 199
(5th Cir. 1992); Childers v. Pumping Sys., Inc., 968 F.2d 565, 569
(5th Cir. 1992). Mere disagreements of the parties as to the
meaning of contract terms do not transform the issue of law into an
issue of fact. D.E.W., Inc., 957 F.2d at 199.
If a written instrument is worded so that a court may properly
give it a definite legal meaning or interpretation, the instrument
is not ambiguous. Childers, 968 F.2d at 569; R & P Enter., Inc.
v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980).
A contract is ambiguous only when the applicable rules of contract
interpretation leave a genuine uncertainty as to which of two
meanings is the proper meaning. Universal C.I.T. Credit Corp. v.
Daniel, 243 S.W.2d 154 (Tex. 1951).

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6
Texas law provides that when a court construes a contract it
must look to the intent of the parties as expressed in the
contract. United States for the Use and Benefit of Straus Systems,
Inc., 969 F.2d at 85; Phillips v. Inexco Oil Co., Inc., 540 S.W.2d
546, 548 (Tex. Civ. App.--Tyler 1976, writ ref'd n.r.e.). In a
determination of the parties' intent, it is the objective intent,
and not the subjective intent, which controls. When the court
finds that a contract is unambiguous the instrument alone is taken
to express the intent of the parties. Swaminathan v. Swiss Air
Transport Co., Ltd., 962 F.2d 387, 389 (5th Cir. 1992); Shelton v.
Exxon Corp., 921 F.2d 595, 603 (5th Cir. 1991); Fuller v. Phillips
Petroleum Co., 872 F.2d 655 (5th Cir. 1989).
With these principles in mind, we agree with the district
court that the Contract is unambiguous. The Contract is reasonably
susceptible to only one interpretation. The parties clearly
contemplated that Smith would return the remaining deposit balance.
Moreover, Smith admitted in his Answer that he "was to refund the
monies advanced." Parties are bound by admissions in their
pleadings, and facts admitted in pleadings are no longer at issue.
Davis v. A.G. Edwards, 823 F.2d 105, 108 (5th Cir. 1987).
G-Street was to recoup the balance through concert receipts if
any concert dates materialized after September 3, 1989. Whether
Smith agreed to and performed at future concert performances
affected only the manner in which Pace was to recover its money,
not whether Smith in fact owed Pace a sum of money. If Smith
failed or refused to perform, or if Smith engaged other tour

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7
promoters, then he was to repay the balance immediately. The
Contract language clearly sets out these conditions for repayment;
contrary to Smith's assertions, neither the terms nor the
obligation to repay are ambiguous.
Smith's final argument with respect to the proper
interpretation of the parties' agreement is that the Contract does
not represent the entire agreement between the parties. He argues
that to understand the entire agreement, one must look at the
parties' previous April 12 agreement and their course of
performance under that agreement. Again, we find Smith's argument
meritless. A written contract is presumed to embody the entire
agreement between the parties. Previous or inconsistent
agreements, whether oral or written, are inadmissible to vary the
terms of the written contract. N.K. Parrish, Inc. v. Southwest
Beef Indus. Corp., 638 F.2d 1366, 1368-69 (5th Cir.), cert. denied,
454 U.S. 1047 (1981); Hubacek v. Ennis State Bank, 317 S.W.2d 30,
32 (Tex. 1952). Similarly, it is improper for a court to look to
course of performance to determine contractual intent if the court
has not made a finding of ambiguity. Shelton, 921 F.2d at 603.
Because Smith has not brought any evidence forth to show that the
parties intended otherwise, and because there is no provision in
the Contract that incorporates other documents by reference, we
take the Contract as comprising the entirety of the agreement
between the parties.

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8
B. Affirmative Defenses
1. Duress
Smith next contends that even if the Contract unambiguously
purports to bind him to certain obligations, any obligations
appearing in the Contract were improperly forced upon him. As such,
he argues, he is not bound by those contractual obligations.
Specifically, Smith asserted in his Answer that, during the
parties' August meeting, G-Street threatened to cancel all future
tour dates unless Smith agreed to the terms of the Contract.
In order to prevail on a duress claim under Texas law, a party
must prove the following: (1) a threat to do some act that the
party threatening the act has no legal right to do, (2) some
illegal exaction or some fraud or deception, (3) an imminent
restraint that destroys the free agency of the threatened party,
and (4) the threatened party must have no means of present
protection from the threat. Lee v. Wal-Mart Stores, Inc., 943 F.2d
554 (5th Cir. 1991); Simpson v. MBank Dallas, N.A., 724 S.W.2d 102,
109 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). What constitutes
duress is a question of law for the courts; however, whether duress
exists in a particular case is a question of fact dependent upon
the circumstances of the case. Mathews v. Mathews, 725 S.W.2d 275,
278 (Tex. App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.).
In light of the elements of the duress defense and the
undisputed facts in this case, we find that Smith failed to present
any genuine fact issue. Smith failed to bring forth evidence on
the elements of duress; as such, he cannot prevail on this theory.

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Smith admitted in the trial court that the Contract was not signed
until September 19, 1989, well after the September 3, 1989
conclusion of the tour. Because the Contract was not signed until
after all of the tour dates were completed, any threat allegedly
made by G-Street to cancel the "remaining" concert dates would have
been utterly impotent, and could have had no coercive effect.
Smith neither pleaded nor brought forth any evidence showing
how such a threat could have operated as an imminent restraint
which overbore his free agency. Smith also failed to show how he
lacked the present means to protect himself from this alleged
threat. Moreover, Smith's ratification of the agreement after the
cessation of any threat or duress precludes his use of duress as a
defense to the contract. See United States v. McBride, 571 F.
Supp. 596, 613 (S.D. Tex. 1983).
2. Lack of Consideration
Smith next asserts that the Contract is not binding or
enforceable because it is not supported by consideration. Smith
argues that he and G-Street entered into a prior concluded
contract, and then entered into a subsequent contract on the same
subject matter at variance with or contradictory to the prior
contract, without new consideration; therefore, the subsequent
September 3, 1989 contract is of no legal force or effect. Bates
Grain Co. v. Cassidy, 225 S.W.2d 1018, 1019 (Tex. Civ. App.--Dallas
1949, writ ref'd n.r.e.). G-Street, Smith claims, did not pay any
additional money, gave no additional consideration, and did not

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10
assume any obligation that it was not already bound to perform
under the previous April 12 contract. We do not agree.
The Contract specifically provides that: (1) G-Street would
promote additional "Nitro Tour" performances after the September
3rd conclusion of the original tour, (2) G-Street would forego
immediate collection of the remaining deposit balance and would
carry over the $233,555.40 as a deposit for the tour extension, and
(3) G-Street would seek immediate repayment only if Smith failed or
refused to perform, or engaged other tour promoters. Smith agreed
to perform additional tour dates in exchange for G-Street's
promises. These reciprocal promises are sufficient consideration
to support the Contract. Newitt v. Camden Drilling Co., 552 S.W.2d
928, 932 (Tex. Civ. App.--Corpus Christi 1977, no writ).
C. Breach of Contract
In his final argument, Smith contends that even if he had an
unambiguous personal obligation to repay the deposit balance, such
an obligation never attached because he never breached the
Contract. Smith argued below that the Contract required him to
perform only on mutually agreed dates and no dates were agreed
upon; therefore, his failure to agree to or to perform on any dates
after September 3, 1989 did not trigger his obligation to repay the
deposit. We, along with the district court, do not share this
view. The clear terms of the Contract gave Smith an option--pay or
play. Smith did neither. He declined to schedule or play further
performances, and he steadfastly refused to remit the deposit

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11
balance upon Pace's request; therefore, he was obligated under the
Contract to repay the balance of the deposit.
The Contract also provided that if Smith engaged other tour
promoters, then the deposit was due immediately. Smith admitted in
his Answer that he engaged other tour promoters. Just as Smith was
bound by his admission of personal liability on the deposit
balance, he is also bound by his admission that he hired other
promoters. Smith argues that his hiring of other tour promoters
does not constitute a breach because he hired those promoters for
another tour that commenced after the end of the "Nitro Tour."
Smith's creative argument, however, renders meaningless the
Contract language prohibiting Smith from hiring other promoters.
Courts construing a contract "examine the entire instrument so that
none of the provisions will be rendered meaningless." R & P
Enter., Inc., 596 S.W.2d at 519; Southland Royalty Co. v. Pan
American Petroleum Corp., 378 S.W.2d 50 (Tex. 1964). This last
argument, which ignores the straightforward language in the
Contract, is not persuasive.
D. Pace's Challenge to the Prejudgment Interest Rate
Pace argues on cross-appeal that the district court
incorrectly calculated prejudgment interest at a rate of six
percent (6%) and asserts that the proper measure of interest is ten
percent (10%). If the sum payable is ascertainable from the
contract, claims for prejudgment interest are governed by Tex. Rev.
Civ. Stat. Ann. art. 5069-1.03 (Vernon 1987) which provides,
When no specified rate of interest is agreed
upon by the parties, interest at the rate of

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six percent per annum should be allowed on all
accounts and contracts ascertaining the sum
payable commencing on the thirtieth (30th) day
from and after the time when the sum is due
and payable.
Texas law thus permits prejudgment interest on contracts at a
rate of six percent when those contracts provide the conditions
upon which liability depends and fix a measure by which the sum
payable can be ascertained with reasonable certainty. Perry
Roofing Co. v. Olcott, 744 S.W.2d 929, 930 (Tex. 1988); La Sara
Grain Co. v. First National Bank of Mercedes, 673 S.W.2d 558, 567
(Tex. 1984).
If the sum payable is not ascertainable from the contract,
equity may provide prejudgment interest at the rate specified in
Tex. Rev. Civ. Stat. Ann. art. 5069-1.05. Perry Roofing Co., 744
S.W.2d at 930; Cavnar v. Quality Control Parking, Inc., 696 S.W.2d
549, 554 (Tex. 1985). The rate specified under Tex. Rev. Civ.
Stat. Ann. art. 5069-1.05 is ten percent compounded daily, and it
is that rate that Pace argues is proper in this case. Pace bases
its contention on the fact that the determination of the precise
outstanding balance would require an extrinsic analysis of net tour
receipts. Such an analysis, Pace concludes, would take the
Contract outside of art. 5069-1.03. We disagree.
Courts that have applied the higher rate have done so when
they have found that the contract does not contain facial
provisions, language, or terms which give guidance in determining
damages. University Sav. Assn. v. Burnap, 786 S.W.2d 423, 427
(Tex. Civ. App.--Dallas 1990, no writ); Rauscher Pierce Refsnes,

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Inc. v. Koenig, 794 S.W.2d 514 (Tex. Civ. App.--Corpus Christi
1990, writ denied); Rio Grande Land & Cattle Co. v. Light, 758
S.W.2d 747 (Tex. 1978).
The Contract clearly sets out the conditions upon which
liability depends; furthermore, it fixes a measure by which the sum
payable can be ascertained with reasonable certainty. The Contract
fixes the deposit balance at $ 233,555.42. Because that figure
represents the exact measure of contractual damages awarded in this
case, the Contract states with exact precision the sum payable.
Even if that were not true, the Contract still would meet the
requirements of art. 5069-1.03. The Contract specifically states
that the deposit balance is to be reduced, if at all, by sums
recouped through tour receipts gained after September 3, 1989. As
such, the Contract contains facial provisions which give clear
guidance in determining damages. Accordingly, we affirm the
district court's calculation of prejudgment interest at six percent
per annum.
V. CONCLUSION
We find no merit in the remaining contentions of the parties.
For the foregoing reasons we AFFIRM the decision of the district
court in all respects.

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