Condea Vista Company v. Gencorp Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 19, 2003
• Docket: 01-21316
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-21316

CONDEA VISTA COMPANY, Plaintiff-Appellee-Cross-Appellant,

versus

GENCORP, INC.; OMNOVA SOLUTIONS, INC.

Defendants-Appellants-Cross-Appellees.

Appeals from the United States District Court For the Southern District of Texas (H-00-CV-2224)

March 18, 2003

Before REAVLEY, JOLLY, and JONES, Circuit Judges.

PER CURIAM:*

Because we find the specific language of the agreement

dispositive in favor of Condea Vista’s interpretation, we affirm.

The pricing provision provided that “[u]pon conclusion of a six

month period, the ‘final’ published average CDI price will be used

to calculate an adjustment which will be included in the price

estimate in the next six month period.” This language explicitly

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. treats the six-month price as an estimate and supports Condea

Vista’s common sense interpretation of the pricing provision to

include a ‘look-back’ provision. Accordingly, we need not reach

the extrinsic evidence offered by GenCorp/Omnova, or its arguments

about the intent of the contract, though it is clear that Condea

Vista’s interpretation is entirely consistent with the statement of

intent contained in the document.

With respect to Condea Vista’s claims for fraudulent

misrepresentation, we affirm the district court’s determination

that there were no actionable misrepresentations made by

GenCorp/Omnova that substantiate a cause of action separate from a

claim under the contract; Condea Vista failed to establish the

essential elements of common law fraud. See e.g., Formosa Plastics

Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d

41, 47 (Tex. 1998). Finally, the assessment of post-judgment

interest under 28 U.S.C. § 1961, which rate on the date of the

judgment was 2.6%, was correct in this diversity case. See e.g.,

Chapman & Cole and CCP, Ltd. v. Itel Container International, B.V.,

865 F.2d 676, 689 (5th Cir. 1989).

Because we find the contract is unambiguous and properly

construed in favor of Condea Vista, the judgment of the district

court is

AFFIRMED.