Better Enterprises v. Quantum Chemical ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-20219
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BETTER ENTERPRISES CORPORATION, INC.,
Plaintiff - Counter Defendant - Appellant,
versus
QUANTUM CHEMICAL CORPORATION, Et Al,
Defendants,
QUANTUM CHEMICAL CORPORATION,
Defendant - Counter Claimant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-94-1121)
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April 10, 1997
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
This court has considered appellant’s position in light
of the fine arguments of counsel, briefs, and pertinent portions of
the record. Having done so, we conclude, as did the district
court, that there was no meeting of the minds by the parties on the
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
sale price of the ASP sufficient to form a contract. The issue was
appropriately treated as one of law because the parties’
negotiations occurred in writing. Gilbert v. Pettiette, 838 S.W.2d
890, 893 (Tex. App. -- Hou. [1st Dist.] 1992, no writ). Better’s
“acquiescence” in a sale price of $850,000 lasted less than two
weeks until Better itself sought to change the price allegedly
based on omission of certain equipment from the sale. After that
point, the parties’ negotiations failed to produce an agreed sales
price, much less a signed contract with the required 50% down
payment.
The district court also correctly rejected Better’s DTPA,
negligent misrepresentation and fraud claims. The DTPA claims boil
down to allegations of breach of contract, which are not actionable
under the DTPA. Crawford v. Ace Sign, 917 S.W.2d 12 (Tex. 1996).
We are unpersuaded that Better produced evidence of fraudulent or
negligent misrepresentations by Quantum of the exact equipment
available or of Quantum’s intent to sell to Better.
The trial court’s grant of judgment as a matter of law is
therefore AFFIRMED.
2