Conkling v. Turner

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 19, 1994
• Docket: 92-03370
• Status: Published

Opinion

United States Court of Appeals,

Fifth Circuit.

No. 92-3370.

Richard L. CONKLING, Plaintiff-Appellant,

v.

Bert S. TURNER, et al., Defendants-Appellees.

April 20, 1994.

Appeals from the United States District Court for the Middle District of Louisiana.

Before REYNALDO G. GARZA, KING and DeMOSS, Circuit Judges.

KING, Circuit Judge:

Plaintiff Richard L. Conkling ("Conkling") appeals a

take-nothing judgment rendered against him based upon his claims

for violations of the Racketeer Influenced and Corrupt

Organizations Act1 ("RICO"), breach of fiduciary duty, and breach

of contract under Louisiana law. Finding no error with the trial

court's resolution of the RICO and breach of contract claims, we

affirm the district court's judgment in those regards. However, we

find that the district court erred in granting summary judgment on

the breach of fiduciary duty claims, as discussed below, and

reverse and remand that portion of the case.

I. Background

This case has its origins in 1961, when defendant Bert S.

Turner ("Turner") recruited Conkling to work for a corporation that

Turner was forming with L.W. "Puna" Eaton, Jr. ("Eaton"). The

1 Title IX of the Organized Crime Control Act of 1970, Pub.L. No. 91-452, 84 Stat. 922 (codified at 18 U.S.C. § 1961 et seq.).

1 corporation, Nichols Construction Corporation ("Nichols"), was

formed on December 28, 1961. Conkling went to work for Nichols in

January 1962. Conkling alleges that Turner represented at the time

that he would give Conkling stock in Nichols and all later-formed

entities if Conkling would make a long-term commitment to Nichols

and that such stock would be redeemed at a fair price when

Conkling's employment ended. Conkling claims he accepted this

offer.

A. The Nichols Agreements

In November 1962, Turner had a document prepared (the "1962

agreement") which provided for the issuance of 10 shares, or 5%, of

Nichols' stock to Conkling, and 10 shares each to two other

minority shareholders, Carmen St. Clair ("St. Clair") and J.B.

Millican ("Millican"). The 1962 agreement also provided that

Turner and Eaton would each receive 85 shares, or 42.5%, of the

Nichols stock. The price set forth in the document for the stock

was $1,000 per share. Conkling, St. Clair, and Millican were each

to give a $10,000 one-year note for his shares, and the document

provided that Nichols would hold his shares until the notes were

paid. Each of the parties executed the 1962 agreement.

Both Conkling and Turner testified that all parties agreed not

to follow this agreement after it was executed. In fact, Turner

and Eaton were apparently successful in obtaining financing after

the 1962 agreement was executed, and purportedly paid only $500,

rather than $85,000, for their shares. Conkling also claims that,

several days after Turner presented this document, Turner gave

2 Conkling his stock certificate for 10 shares, telling him that he

was receiving the stock for services Conkling had previously

performed for Nichols and that he would not have to pay the $10,000

note unless Nichols failed. Defendants stipulated that, according

to Nichols' records, Conkling was issued 10 shares of Nichols'

stock on November 15, 1962.

Six months later, in May 1963, Nichols redeemed Eaton's 85

shares at Turner's direction. According to Conkling, Turner

engaged in questionable practices related to his negotiations with

Eaton, including ordering the reporting of profits on certain

Nichols jobs to be delayed and instructing Conkling to withhold a

number of profitable jobs from Nichols' financial statement.

Turner also allegedly misrepresented to Eaton the value of Nichols'

equipment in order to avoid paying him a greater amount for

redemption of his stock. Conkling alleged that the redemption of

Eaton's stock increased his proportionate ownership of Nichols from

5% to 8.69565%.

In June 1963, Turner directed his lawyer to prepare another

document (the "1963 agreement") which recited that Turner owned

100% of Nichols. This agreement set forth the terms for Conkling

and the other minority shareholders to purchase an 8% interest in

Nichols. The document also contained a right of first refusal and

specific formula for redemption of any Nichols' stock; however,

that provision was subsequently deleted by agreement in August of

1966. Without telling Conkling anything beyond the contents of the

document, Turner stood over Conkling as Conkling read and signed

3 the document. Conkling argues that, as a result of Turner's

concealment and misrepresentations, Conkling relinquished his

8.69565% interest and purchased an 8% interest in Nichols.

B. The Nichols Affiliates

Over the years, Nichols prospered and new companies were

formed by Turner. The original Nichols shareholders had an oral

agreement to share proportionate ownership in any direct affiliates

or spin-off companies of Nichols. The relative ownership

relationship for the affiliate companies was to be based upon the

original ownership ratio of Nichols. The following companies,

formed as affiliates, spin-offs, or alleged affiliates of Nichols,

form the basis of Conkling's complaint.

1. National Maintenance, International Maintenance, TSMC, BTL, TL, and Crest

In 1970, Nichols spun off a corporation to conduct maintenance

work previously done in Nichols' name and transferred almost

$1,000,000 worth of assets to the newly formed company, named

National Maintenance Corporation ("National Maintenance").

Conkling purchased an 8% interest in National Maintenance in

accordance with the relative ownership agreement between the

original Nichols founders. Similarly, International Maintenance

Corporation ("International Maintenance") was formed in 1971, and,

although no stock was issued until 1977, Conkling was able to

purchase an 8% interest in that company as well.

In 1971, TSMC Company ("TSMC") was formed as a partnership

designed to be supported exclusively by income from rental of

construction equipment to Nichols' affiliates on a cost-plus basis.

4 Conkling received an 8% interest in this partnership. T.L. Company

("TL") and BTL Company ("BTL") were also partnerships whose

revenues came from the rental of construction equipment to Nichols

and affiliates on a cost-plus basis. Conkling purchased 8%

interests in each in 1978 and 1980, respectively. Crest, Inc.

("Crest") was formed as a Texas corporation to pursue construction

opportunities in that state. Conkling acquired an 8% interest in

Crest in August of 1974.

2. TIL

In October of 1981, Turner formed Turner Investments, Ltd.

("TIL"), wholly owned by Turner and his family, to hold his

interests in Nichols and another related company. It subsequently

became the chief operating company over Nichols and its affiliates,

consolidating executive management, data processing, and accounting

personnel for these companies. TIL billed Nichols and its

affiliates for its services, and Conkling asserted that the

billings were excessive.

3. Blast, Trebco, and IPS

In August of 1975, Turner formed Blast Corporation ("Blast"),

which subsequently entered the residential construction market

under the name S & S Homes, Inc. ("S & S"). Turner supposedly told

Conkling that Blast was a mere shell, and Conkling did not purchase

an interest in the company. After sustaining losses, S & S was

changed back to Blast, and the company was purchased by Nichols in

August of 1977.

Trebco Corporation ("Trebco") was formed in September of 1983

5 to perform non-union industrial construction and maintenance work

in Texas. Conkling claims that Turner concealed Trebco so that he

would not be able to purchase an interest in the company. Turner

directed Nichols to lend up to $600,000 to Trebco for working

capital, but the company was relatively unsuccessful, reporting

heavy operating losses. Trebco was subsequently sold to Nichols on

October 9, 1984, although the stock certificate effecting the

transfer was backdated to November 1, 1983.

Nichols also spun off its entire pipe fabrication division and

formed International Piping Systems, Ltd. ("IPS") in July of 1982.

In the process, Nichols also transferred approximately $200,000

worth of assets to the newly-formed company. The stock in IPS was

originally issued to TIL, Turner's family-owned company, although

Conkling claims he was told it would be issued to Nichols. During

the time the IPS stock was owned by TIL, Nichols guaranteed

$7,000,000 in bonded indebtedness on behalf of IPS and loaned money

to the company. Conkling alleges that, in December of 1983, when

he discovered that the IPS stock had been issued to TIL, rather

than to Nichols, he brought the ownership issue to Turner's

attention, and Turner fired him. All of the stock in IPS was

subsequently acquired by Nichols in April of 1984 for the same

price as had been paid by TIL.

4. Harmony

On the same day Blast was formed, in August of 1979, Turner

also formed Harmony Corporation ("Harmony"). Turner has apparently

admitted that he concealed the creation of Harmony from Conkling.

6 The stock in Harmony was issued originally to unrelated parties,

but was subsequently acquired by Nichols and then Turner. Conkling

learned of Turner's ownership of Harmony and made repeated requests

to purchase an interest in the company. Although Turner takes the

position that Conkling was never entitled to purchase his relative

ownership interest in Harmony, he allowed Conkling to purchase

5,161 shares on March 14, 1980, for $1.00 per share. Conkling

understood that this quantity of shares would make him an 8.69565%

owner of the company. However, later that day, an additional

33,450 shares of Harmony were issued to Harmony's president, C.N.

"Bones" McLellan, Jr. ("McLellan"), thus diluting Conkling's

interest. McLellan testified that he was told he was to hold the

new shares as a nominee for Turner and that they were to be subject

to Turner's secret option to purchase. In fact, although McLellan

gave a note to Harmony for the purchase price of these shares, the

obligation was later cancelled when Turner purchased the shares by

executing a note to Harmony in the same amount.

5. Merit, Merit Environmental, and Gymco

Merit Industrial Constructors, Inc. ("Merit") and its

wholly-owned subsidiary, Merit Environmental Services, Inc. ("Merit

Environmental") were Louisiana corporations created in early 1982

to perform non-union industrial and environmental construction and

maintenance work. Merit was a competitor of Harmony's. Although

Turner has never been a named owner of Merit, Conkling claims that

there is sufficient evidence to show that he secretly owns the

company. The undisputed evidence reveals that Turner has supplied

7 Merit with significant cash infusions and has guaranteed loans for

the company with Louisiana National Bank ("LNB"), a bank on whose

board of directors Turner sits. Turner has also guaranteed lines

of credit and performance bonds on behalf of Merit. Although the

owners of record have executed a promissory note in favor of

Turner, it appears that no interest has been paid on this note

since 1983 and that the principal has only been reduced by

payments.

After Conkling heard rumors that Turner owned Merit, he

requested that he be allowed to purchase his relative ownership

interest in the company. Turner denied ownership in Merit, and

Conkling never acquired an interest in the company. Conkling also

asserts that Turner has used Merit to compete with Harmony,

sometimes using Harmony's confidential information to its

detriment.

Gymco was a Louisiana partnership formed by the owners of

Merit to purchase equipment exclusively for rental to Merit.

Conkling claims that Turner also secretly owns Gymco, as evidenced

by the fact that Turner guaranteed indebtedness of Gymco and

reported certain tax effects on his income tax returns with respect

to Gymco such as would signify ownership.

C. Discussions About Redemption of Conkling's Stock

As noted above, Conkling was fired from Nichols in December of

1983, and, not surprisingly, the parties dispute the reason for his

termination. After termination, the parties attempted negotiations

for the purchase of Conkling's stock in Nichols and its affiliates,

8 but were unable to agree to a price. One year later, Conkling sent

a letter to Turner offering to sell these interests for $7,000,000.

Although Conkling now claims that he had a binding agreement with

Turner to redeem the stock at a "fair price," the letter made no

reference to any such obligation. Turner never responded to the

letter, and this lawsuit followed.

D. The Instant Litigation

In November 1985, Conkling filed suit against Turner and

numerous corporations and partnerships controlled by Turner. He

also sued David R. Carpenter ("Carpenter"), who served as Chief

Financial Officer of Nichols and in various other capacities to the

Nichols spin-off companies. Conkling alleged civil RICO violations

under 18 U.S.C. §§ 1962(c) & (d). He also alleged pendent claims

under Louisiana law for breach of fiduciary duty and breach of

contract. His primary contention was that he was entitled to own

8.69565% of Nichols, but was defrauded out of the additional

.69565% in Nichols by the 1963 agreement. He argues that he was

consequently deprived of the additional .69565% interest in several

of the Nichols-affiliated companies based upon the application of

the Nichols ownership ratio. Conkling also claimed that Turner

schemed to prevent Conkling from acquiring any ownership interests

in several other, newly-formed companies by misrepresenting or

concealing Turner's ownership of these companies. Conkling alleged

mail fraud because Turner used numerous mailings to deceive

Conkling and securities fraud with respect to certain of the stock

transactions.

9 After a protracted discovery, the defendants filed motions to

dismiss and for summary judgment. A lengthy joint pre-trial order

defining the issues for trial was signed by the judge on October

17, 1991, and filed on October 21, 1991 (the "pre-trial order").

Prior to trial, by order entered January 21, 1992 (the "pre-trial

summary judgment"), the district court granted the defendants'

summary judgment motions in part, dismissing (i) Conkling's RICO

predicate act based upon Turner's alleged refusal to redeem his

stock in Nichols and affiliates, (ii) certain derivative claims,

(iii) Conkling's claims for wrongful discharge, denial of access to

corporate records, and damages due to the corporations' use of an

unfavorable depreciation method, (iv) all claims against Carpenter,

and (v) certain miscellaneous claims not discussed in this appeal.

In response to requests from both parties, the district court

clarified the pre-trial summary judgment by order of February 5,

1992 (the "clarification order"), to confirm that it had "dismissed

all claims which are shareholder derivative claims in nature,

including any claim involving Harmony to the extent that such claim

is derivative."

The weekend before trial, the district court announced that it

would sever the issues to be tried and would try only a single

alleged predicate act—fraud in the 1963 agreement—with respect to

Conkling's civil RICO claims in the first phase of trial. The

court also stated that the breach of contract claim would be tried

in this initial phase. After Conkling presented his case, both

parties moved for judgment as a matter of law; the district court

10 granted the defendants' motion with respect to Conkling's breach of

contract claims. The 1963 agreement issue was submitted to the

jury, which found that Turner did not commit fraud in the 1963

agreement. As a result of the jury's verdict on this issue, the

district court, on April 9, 1992, entered summary judgment in favor

of the defendants on the remainder of Conkling's complaint, both

under civil RICO and breach of fiduciary duty (the "post-trial

summary judgment"). The instant appeal ensued.

II. Analysis

A. The Severance Order

Conkling first contends that the trial court abused its

discretion in severing from his RICO case all predicate acts except

for his claim that Turner defrauded him into executing the 1963

agreement. Essentially, the trial court determined that Conkling

would not be able to show any pattern of racketeering activity

unless he could show that the agreement he and Turner entered into

in June 1963 was fraudulently induced. Thus, the trial judge

deemed it appropriate to try this issue alone before proceeding to

any other acts that could be predicate acts for the RICO claims.

In fact, after the jury determined that Turner had not defrauded

Conkling with respect to the 1963 agreement, the court below

dismissed the entire RICO case as a matter of law on the basis of

this finding.

Severance is proper when a trial court determines that

severance is "in furtherance of convenience or to avoid prejudice,

or when separate trials will be conducive to expedition or

11 economy." FED.R.CIV.P. 42(b); see also FDIC v. Selaiden Builders,

Inc., 973 F.2d 1249, 1253 (5th Cir.1992), cert. denied, --- U.S. --

--, 113 S.Ct. 1944, 123 L.Ed.2d 650 (1993). We review a severance

order for an abuse of discretion, recognizing that the decision to

bifurcate "is a matter within the sole discretion of the trial

court." First Tex. Sav. Ass'n v. Reliance Ins. Co., 950 F.2d 1171,

1174 n. 2 (5th Cir.1992). An "abuse of discretion exists only when

there is "definite and firm' conviction that the court below

committed clear error of judgment in the conclusion it reached upon

a weighing of the relevant factors." Hoffman v. Merrell Dow

Pharmaceuticals, Inc. (In re Bendectin Litig.), 857 F.2d 290, 307

(6th Cir.1988) (citation omitted), cert. denied, 488 U.S. 1006, 109

S.Ct. 788, 102 L.Ed.2d 779 (1989).

To determine whether the severance order was proper in this

case, we must first evaluate the basis of the RICO claims. Section

1962(b) of Title 18 makes it unlawful "for any person through a

pattern of racketeering activity ... to acquire or maintain,

directly or indirectly, any interest in or control of any

enterprise which is engaged in, or the activities of which affect,

interstate or foreign commerce." 18 U.S.C. § 1962(b). While the

RICO statute is by no means clear in many of its provisions, it

does provide explicitly that there must be a "pattern" of

racketeering activity and that "pattern" is defined to "require[ ]

at least two acts of racketeering activity." 18 U.S.C. § 1961(5)

(emphasis added); see also H.J., Inc. v. Northwestern Bell Tel.

Co., 492 U.S. 229, 237-38, 109 S.Ct. 2893, 2899-2900, 106 L.Ed.2d

12 195 (1989); McLaughlin v. Anderson, 962 F.2d 187, 192 (2d

Cir.1992) (noting that the "bare minimum of a RICO charge is that

a defendant personally committed or aided and abetted the

commission of two predicate acts"). The trial court reasoned that

unless Conkling could show a scheme to defraud stemming from the

1963 agreement,2 he could not prove the minimum two predicate acts

to support a RICO claim.

We note at the outset that RICO cases appear to be specially

suited for trial limitation. In fact, numerous trial courts have

ordered separate trials on RICO claims to facilitate their

resolution and simplify jury presentation. See, e.g., Agency

Holding Corp. v. Malley-Duff & Assoc., Inc., 483 U.S. 143, 145, 107

S.Ct. 2759, 2761, 97 L.Ed.2d 121 (1987) (reciting that RICO case

had been severed from antitrust and tortious interference claims);

United States v. Quintanilla, 2 F.3d 1469, 1479-80 & n. 13 (7th

Cir.1993) (recognizing that trial court had ordered separate trial

on RICO count and other fraud counts pertaining to an identifiable

fraudulent scheme); First Nat'l Bank and Trust Co. v.

Hollingsworth, 931 F.2d 1295, 1301 (8th Cir.1991) (noting that RICO

case had been tried separately from fraudulent conveyance issues);

cf. Laitram Corp. v. Hewlett-Packard Co., 791 F.Supp. 113, 117-118

2 As noted above, both parties agree that their agreement to share proportionate ownership in Nichols' affiliates was tied to the ownership ratio of Nichols itself. Thus, if Conkling were entitled only to 8% of Nichols, he would similarly be entitled only to 8% of the affiliates, all of which he admits having received. Conversely, if he could establish that he was defrauded out of 8.69565% of Nichols, he would have a claim to an additional .69565% ownership in each of the spin-off companies.

13 (E.D.La.1992) (trifurcating complex patent trial into phases to

diminish potential of jury confusion). Other courts have

bifurcated distinct classes of predicate acts supporting the

substantive RICO claim for separate disposition. E.g., United

States v. Jenkins, 902 F.2d 459, 461 (6th Cir.1990) (observing that

district court had severed mail fraud predicate acts from

substantive RICO claim and bribery and extortion predicate acts);

cf. United States v. Coonan, 839 F.2d 886, 889-90 (2d Cir.1988)

(suggesting a bifurcation procedure to be used at the

charge/deliberation stage in which jury is first asked to determine

which, if any, of the charged predicate acts were committed and,

only if two or more are found, to consider their relatedness for

purposes of a racketeering pattern).3

Conkling's RICO case is similarly complex. In all, Conkling

has alleged during the course of this litigation at least 25

predicate acts, including the derivative claims for diminution in

value of Nichols and its affiliates. Ten of these were adjudicated

in the pre-trial summary judgment. The trial court apparently

considered the predicate acts relating to Merit, Merit

Environmental, and Gymco not to be predicate acts as a matter of

law. See below infra at section II.B.3.b. The Harmony dilution

claim was conceded by the parties to involve fact issues, but, as

discussed above, its viability under RICO depended upon the

3 Although several of these cases involve criminal, rather than civil, RICO charges, we note that bifurcation is even more remarkable in criminal trials since the Federal Rules of Criminal Procedure do not have an analogue to Federal Rule of Civil Procedure 42(b).

14 existence of at least one other predicate act. The remaining

predicate acts were dependent upon a finding of fraud in the 1963

agreement4, an issue which was tried to the jury and found against

Conkling. It is clear to us that the court below had a specific

purpose in paring down the issues for jury resolution to the lowest

common denominator. If the 1963 agreement issue were to be

resolved in the defendants' favor, the RICO case could be decided

as a matter of law, thus simplifying the number of issues

ultimately submitted to the jury. See, e.g., Rossano v. Blue Plate

Foods, Inc., 314 F.2d 174, 176 (5th Cir.) (Issue severed need not

conclusively decide entire case on given claim; "[i]t is enough

that there be on the record at the time a substantial issue of fact

which, if determined in favor of defendant, will eliminate expense

for all concerned without prejudice to the rights of the

parties."), cert. denied, 375 U.S. 866, 84 S.Ct. 139, 11 L.Ed.2d 93

(1963); see also In re Bendectin Litig., 857 F.2d at 308, 320

(recognizing the "numerous cases that have tried an individual

4 Conkling's claims that he was deprived of his relative ownership—i.e., 8.69565%, rather than 8%—interests in National Maintenance, International Maintenance, TSMC, BTL, TL, Blast, Trebco, and IPS were all dependent upon a determination that he rightfully owned 8.69565% of Nichols. The jury's finding that the 1963 agreement was valid, and the inescapable conclusion that Conkling was therefore entitled only to 8% of Nichols similarly rendered the claims for an additional 8.69565% of National and International Maintenance, TSMC, BTL, and TL fatally deficient since the relative ownership in those companies was determined by Nichols ownership ratio. Conkling admitted as much in his portion of the pre-trial order. Moreover, since Blast, Trebco, and IPS were each acquired by Nichols as a wholly-owned subsidiary, the confirmation of Conkling's 8% interest in Nichols demonstrated that he had a corresponding relative ownership in each of these companies.

15 issue separately under circumstances that, had the issue been

decided in favor of the plaintiff, the trial would have had more

than two phases to it," and affirming district court's trifurcation

order).

Under these circumstances, we cannot find that the trial

court acted arbitrarily in severing the 1963 agreement predicate

act. Rather, the trial transcript reflects that the court was

concerned with preventing the jury from being needlessly confused

by the complexity of the case, and the court's actions were in line

with this interest. The court's concern about jury confusion was

justified, considering that the case involved over twenty years of

historical facts, a substantial number of witnesses, and countless

theories of recovery. In fact, trial on the single issue (and the

contract claim) took almost three and one-half weeks and involved

numerous Federal Rule of Evidence 104 hearings outside the presence

of the jury to determine the admissibility of evidence as to the

numerous contested factual issues. Moreover, this court's

long-standing rule that a district court is accorded great

deference on review with respect to its severance decision reflects

our perception that the trial court is in the best position to

determine whether bifurcation is appropriate.

The only possible prejudice Conkling could have suffered in

proceeding in this manner was his inability to aggregate the

allegations of fraud with respect to his multiple claims. However,

as seen above, the RICO predicate acts remaining for trial were

"dormantly dependent" upon a finding of initial fraud in the 1963

16 agreement, and Conkling "would have been not one whit more entitled

to a verdict [in the RICO case] merely because lengthy additional

testimony might have been taken on the separate and irrelevant

issues" relating to the dependent claims. Rossano, 314 F.2d at

176-77. The real injury to Conkling, as is evident in his argument

to this court, was not the bifurcation of trial, but the trial

court's subsequent resolution of the entire RICO case based upon

the jury finding as to the one predicate act, a point which we will

address below.

Finally, and although Conkling complains that he was not

given any notice of the dramatic severance until the weekend before

trial, we note that he would have been in no different a position

if the trial court had granted summary judgment on the RICO

predicate acts severed.5 The dependence of the spin-off predicate

acts upon the 1963 agreement was fully briefed by the defendants in

their motion for summary judgment, and, had the trial court found

no fact issue with respect to that agreement, it would have

necessarily dismissed these claims as well. Indeed, Conkling's own

"Statement of Plaintiffs' Claims" in the pre-trial order

acknowledged the dependence:

[The ownership relationship agreement between Conkling and Turner] was established on the basis of Turner owning 85 shares of Nichols and Conkling owning 10 shares.... This ownership relationship was what Turner and Conkling agreed would always determine their relative ownership in all

5 In this regard, we observe that a district court may sever a case on its own motion. FDIC v. Selaiden Builders, Inc., 973 F.2d 1249, 1253 (5th Cir.1992). Thus, the fact that no formal request was made by either of the parties is not fatal to the decision to stage separate trials.

17 subsequently formed entities.... Each time Turner formed a new entity, ... Mr. Conkling was entitled to acquire his proportionate ownership relative to Turner's. Turner later formed National Maintenance, International Maintenance, Harmony, TSMC, BTL, and TL. Each time one of these entities was formed, Turner tacitly reaffirmed ... the ownership relationship agreement with Conkling.... Because Turner had reduced Mr. Conkling's ownership interest in Nichols through the 1963 fraud, Conkling received less of an interest in those entities than that to which he was entitled.

(emphasis added). Accordingly, once the jury decided that there

was no fraud in the 1963 agreement, the vitality of these pendent

claims then became a matter of law, thereby eliminating a large

portion of the litigation. We hold that the district court did not

abuse its discretion in staging the trial in this way.

B. The RICO Summary Judgments

Conkling next challenges the district court's grant of summary

judgment on his "agreement to repurchase" predicate act prior to

trial and on his entire RICO case after the jury's verdict

concluded the first phase of the bifurcated trial. With respect to

the pre-trial summary judgment, the trial court did not elaborate

upon the grounds for its decision. The trial court recited in its

post-trial summary judgment that the jury's finding "that the

defendants were not guilty of any fraud" decided the remainder of

the RICO case as a matter of law. We note the standard of review

and address each contention in turn.

1. Standard of review

Summary judgment is proper if "the pleadings, depositions,

answers to interrogatories and admissions on file, together with

affidavits, if any, show that there is no genuine dispute as to any

material fact and that the moving party is entitled to judgment as

18 a matter of law." FED.R.CIV.P. 56(c). Once a properly supported

motion for summary judgment is presented, the burden shifts to the

non-moving party who bears the burden of proof at trial to show

with "significant probative" evidence that there exists a triable

issue of fact. In re Municipal Bond Reporting Antitrust Litig.,

672 F.2d 436, 440 (5th Cir.1982). We review a summary judgment de

novo, applying the same criteria employed by the district court in

the first instance. Federal Deposit Ins. Corp. v. Dawson, 4 F.3d

1303, 1306 (5th Cir.1993); Fraire v. City of Arlington, 957 F.2d

1268, 1273 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 462,

121 L.Ed.2d 371 (1992). Conkling implies that the district court

improperly reversed itself, having originally denied summary

judgment on certain issues, then later granting judgment on these

same issues pursuant to its sua sponte reconsideration after trial.

However, this court has held that a trial court may reconsider a

previously denied motion for summary judgment even in the absence

of new evidentiary material. Enlow v. Tishomingo County, Miss.,

962 F.2d 501, 507 n. 16 (5th Cir.1992).

2. The agreement to redeem

As one of the predicate acts in support of his RICO counts,

Conkling asserts that Turner entered into an agreement with him

over twenty years ago to purchase Conkling's stock at a "fair

price" in the event of termination while harboring a secret

intention never to perform that agreement. He argues that the

district court erroneously granted a pre-trial summary judgment on

this claim when fact issues abounded.

19 A contract to purchase and sell securities in the future can

constitute a "purchase or sale" of the securities actionable under

the federal securities laws. See Blue Chip Stamps v. Manor Drug

Stores, 421 U.S. 723, 750-51, 95 S.Ct. 1917, 1932, 44 L.Ed.2d 539

(1975). However, Conkling did not assert an independent securities

fraud claim. Rather, he has used the alleged violations as

predicate acts under RICO. The defendants argue that Conkling has

not claimed damages as a result of this fraud claim, but instead

has requested specific performance of the agreement6, a remedy

which is not available to private litigants under RICO. The

district court apparently adopted this argument in deciding the

issue since it originally denied summary judgment with respect to

Conkling's breach of contract claim based upon the same allegations

as was this fraud claim and against which the defendants raised

virtually the same defenses save this one.

This court has not yet decided whether RICO affords private

litigants the option of equitable remedies,7 and our sister

6 In the trial court, the defendants pointed out that the "damages" Conkling seeks are actually the book value of the stock he currently owns and that Conkling himself has acknowledged that he must relinquish all of the stock if he is awarded damages on this claim. 7 In In re Fredeman Litig., we held that RICO did not authorize a private party to seek an injunction freezing a defendant's assets to secure a potential judgment since that remedy was not available outside of RICO, and we were unwilling to extend injunctive relief solely under RICO where the legislative intent did not appear to permit it. 843 F.2d 821, 830 (5th Cir.1988). We specifically reserved ruling on "whether all forms of injunctive relief and other equitable relief are foreclosed to private plaintiffs under RICO." Id.

20 circuits appear to disagree on the issue.8 However, we need not

resolve this dispute today since the district court's subsequent

grant of judgment as a matter of law on Conkling's corollary breach

of contract claim, see infra section II.D—finding that Conkling

failed to adduce sufficient evidence that there was a

contract—confirmed that summary disposition of this securities

fraud claim was proper.9 The premise of this fraud claim is that

Turner entered into an "oral agreement to purchase Conkling's stock

at the end of Conkling's employment." It was therefore critical

that Conkling establish an oral contract to "purchase" or "sell" to

sustain a fraud claim under federal securities laws. See Blue Chip

8 Contrast Religious Tech. Ctr. v. Wollersheim, 796 F.2d 1076, 1088-89 (9th Cir.1986) (expressly holding that injunctive relief was not available under RICO), cert. denied, 479 U.S. 1103, 107 S.Ct. 1336, 94 L.Ed.2d 187 (1987) and Dan River, Inc. v. Icahn, 701 F.2d 278, 290 (4th Cir.1983) (noting "substantial doubt about whether RICO grants private parties ... a cause of action for equitable relief") and Miller v. Affiliated Fin. Corp., 600 F.Supp. 987, 994 (N.D.Ill.1984) (RICO does not permit equitable remedies such as declaratory judgment and recision.) with Bennett v. Berg, 685 F.2d 1053, 1064 (8th Cir.1982) (implying that equitable relief may be available under RICO), aff'd on reh'g, 710 F.2d 1361 (8th Cir.) (en banc), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983) and Aetna Cas. & Sur. Co. v. Liebowitz, 570 F.Supp. 908, 910-11 (E.D.N.Y.1983) (reasoning that Congress did not intend "to deprive the district court of its traditional equitable jurisdiction" to grant injunctive relief for alleged violations of RICO statute), aff'd on other grounds, 730 F.2d 905 (2d Cir.1984). 9 This court may affirm a grant of summary judgment on any appropriate ground that was raised to the district court and upon which both parties had the opportunity to introduce evidence. Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1081, --- L.Ed.2d ---- (1994); Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1146 (5th Cir.1993); Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1355 n. 3 (5th Cir.1986).

21 Stamps, 421 U.S. at 751, 95 S.Ct. at 1932 (observing that "[u]nlike

respondent, which had no contractual right or duty to purchase Blue

Chip's securities, the holders of puts, calls, options, and other

contractual rights or duties to purchase or sell securities have

been recognized as "purchasers' or "sellers' for purposes of Rule

10b-5.") (emphasis added). His failure to do so was fatal to this

predicate act as a matter of law.

3. The case tried and resulting post-trial RICO summary judgment

The district court specifically held that Conkling's "claim

under RICO should be dismissed since the jury found no fraud on the

part of the defendants in this case." Implicit in this finding is

a conclusion that all but one10 of the remaining predicate acts were

dependent upon fraud in the 1963 agreement. The trial court had

already dismissed before trial many of the predicate acts

enumerated in Conkling's brief as either (i) derivative claims,

which Conkling did not have standing to bring, or (ii) actions that

could not be RICO predicate acts as a matter of law. The court

then apparently determined that the predicate acts remaining for

10 As noted above, the parties agreed that there were fact issues as to whether the Harmony securities transaction could constitute a predicate act, thus precluding summary disposition of that claim, but standing alone, it could not constitute a RICO "pattern." 18 U.S.C. § 1961(5); see also H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 237-38, 109 S.Ct. 2893, 2899-2900, 106 L.Ed.2d 195 (1989) ("The statement that a pattern "requires at least' two predicate acts implies "that while two acts are necessary, they may not be sufficient.' ") (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985)); McLaughlin v. Anderson, 962 F.2d 187, 192 (2d Cir.1992) (holding that the failure to establish at least two predicate acts is fatal to RICO claim).

22 jury resolution stemmed from the 1963 agreement11 and adjudicated

all of them as a matter of law when the jury failed to find fraud

in the execution of that agreement. Conkling argues that not all

of his predicate acts can be neatly pigeonholed into one of the

three enumerated categories. Specifically, he challenges the

district court's resolution of the Harmony, Merit, TIL, IPS, Blast,

and Trebco transactions. In his reply brief, Conkling belatedly

asserts that the use of an improper depreciation measure unfairly

deflated the book values of the companies in which he retained an

interest. We discuss each of these claims below.

a. Harmony

Although, as noted previously, the defendants concede a fact

issue with respect to the Harmony dilution claim, that transaction

standing alone could not support a RICO "pattern"—necessitating at

least two acts of racketeering activity—under section 1961 of Title

18. 18 U.S.C. § 1961; see also McLaughlin, 962 F.2d at 194

(affirming dismissal of section 1962(c) & (d) claims because

plaintiff failed to allege that "any defendant committed more than

a single act of racketeering").

b. Merit, Merit Environmental and Gymco

The Merit Environmental and Gymco claims appear to be

integrally related to the Merit transaction. However, neither of

these transactions suffices to defeat summary judgment on the RICO

case. Since Merit Environmental was a corporation wholly owned by

Merit, Conkling could have no claim that he was defrauded out of

11 See supra note 4.

23 any proportionate ownership in Merit Environmental unless he could

prove fraud with respect to Merit. Further, although Conkling

argues in a conclusory manner that he "was defrauded out of his

relative ownership in Merit [ ], Merit Environmental, and Gymco

pursuant to his ownership relationship agreement with Turner," he

does not articulate in his brief any basis for asserting the

predicate act of mail fraud with respect to Gymco. In fact, the

only evidence proffered by Conkling to defeat summary judgment on

the Gymco "predicate act" is evidence showing a fact issue with

respect to Turner's ownership of the partnership. Conspicuously

absent from Conkling's argument is any analysis of, or even

reference to, summary judgment evidence tending to prove a mail

fraud in connection with Gymco.12 In short, we have serious doubt

that the Gymco transaction was ever more than an attempt to put

before the jury evidence of Turner's "other crimes" under Federal

Rule of Evidence 404(b). Regardless of whether the district court

treated the Gymco facts as merely Rule 404(b) evidence or as an

attempted predicate act of mail fraud, it properly disposed of the

claim in summary judgment.

The claims relating to Merit are more difficult. Conkling

asserts in this court as below that he was "fraudulently deprived

by Turner of his rightful proportionate interest in Merit." This

transaction was clearly not derivative, nor was it a direct result

12 Indeed, none of the "183 items transmitted through the U.S. mail to [Conkling] in furtherance of defendants' scheme to defraud," or the numerous mailings to the Louisiana Secretary of State referred to by Conkling in his brief even relates to Gymco.

24 of the 1963 agreement. However, we do not believe it was a viable

predicate act by the time of trial. The defendants pointed out

that Conkling waived any claim for damages from Merit, concluding

that he could introduce the evidence under Federal Rule of Evidence

404(b) as "evidence of other crimes, wrongs, or acts," which are

only admissible for limited purposes, "such as proof of motive,

opportunity, [or] intent...." FED.R.EVID. 404(b). Conkling admits

that he waived any damage claim with respect to Merit but contends

that he did not waive the predicate act itself. He argues that it

is not necessary to demonstrate injury flowing from each predicate

act, but only from some in order to show a pattern of racketeering

activity. See, e.g., Deppe v. Tripp, 863 F.2d 1356, 1366-67 (7th

Cir.1988); Town of Kearny v. Hudson Meadows Urban Renewal Corp.,

829 F.2d 1263, 1268 (3d Cir.1987); Marshall & Ilsley Trust Co. v.

Pate, 819 F.2d 806, 809 (7th Cir.1987); Panna v. Firstrust Sav.

Bank, 760 F.Supp. 432, 437 n. 6 (D.N.J.1991). Although the record

is somewhat ambiguous on this point, it appears to us that Conkling

waived the entire predicate act.13 During trial, Conkling's counsel

admitted that he had previously agreed to abandon the damage claim

on Merit because he understood the district court to have ruled

13 We asked the parties for additional briefing on whether Conkling had waived the Merit claims as predicate acts since the defendants had so intimated in their brief. The transcript shows that Conkling waived the Merit claim, assuming that he could admit the evidence under Rule 404(b), and reveals a series of conflicting positions taken by Conkling on this issue. Although, as acknowledged above, the sequence of events is less than clear—due largely to the fact that several critical, pre-trial conferences on this issue were unrecorded—our best reading of the record leads us to conclude that Conkling abandoned Merit as a predicate act.

25 that the evidence could be admitted under Rule 404(b) at a prior

status conference. The district court apparently considered the

transaction as being at best "other crimes" evidence as reflected

in the following exchange:

MR. BECKER [Conkling's counsel]: .... Do you remember, we talked about it. I agreed to give up the damage claim on Merit because you said it was admissible under 404(b) at the status conference.

THE COURT: I didn't say that it was totally admissible.... [Merit] could not even be a damage claim because it wasn't prayed for, number one. Number two, what I said was—what I said was the fact that it is not a damage claim doesn't mean that it can[not] be used for another purpose including 404(b), but I never made a ruling that it was absolutely admissible under 404(b) at that time.

It is entirely inconsistent for Conkling to claim that the Merit

evidence is admissible under Rule 404(b) and yet to argue that it

constitutes a predicate act. A predicate act, by its very nature,

is evidence directly bearing on an issue in the case which would

not need to be screened through Rule 404(b).

Important in this regard is the fact that several documents of

record reflect that the status conference referred to by Conkling's

counsel in the above-cited dialogue took place prior to the

district court's severance of the RICO claim. Accordingly,

Conkling's voluntary waiver of the Merit transaction as a claim

under the belief that the evidence would be admitted under Rule

404(b) could not have been simply a response to the trial court's

ruling that only one predicate act would be tried.

c. TIL

Conkling also claims that the TIL predicate acts should not

have been decided on summary judgment. Conkling admits that TIL

26 is, and always has been owned by Turner and his family. In fact,

based upon Turner's representations that "TIL would solely be an

estate planning tool to enable Turner to hold all of his and his

family's stock in Nichols and Harmony, ... Conkling agreed that he

would not be entitled to acquire his relative ownership in TIL."

Although it is undisputed that the ownership of TIL remains

exclusively in Turner and his family, Conkling claims that the

placement of TIL as chief operating company over Nichols and its

affiliates somehow changed its nature and entitled him to

ownership. A closer look at the allegations and evidence, however,

shows that Conkling's damages are based upon TIL's profits from the

management of the Nichols-related companies, which is a derivative

claim. Since Conkling does not have standing to raise derivative

claims on behalf of the companies in which he holds stock, see

Adams-Lundy v. Association of Professional Flight Attendants, 844

F.2d 245, 250 (5th Cir.1988), the district court properly granted

judgment on this claim in favor of the defendants.

d. IPS, Blast, and Trebco

IPS, Blast, and Trebco were each acquired by Nichols as a

wholly-owned subsidiary, and the jury's confirmation of Conkling's

87 interest in Nichols demonstrated that he retained relative

ownership in each of these companies. Therefore, these claims were

properly resolved in the post-trial summary judgment as "dormantly

dependent" upon a determination of fraud in the 1963 agreement.

e. Depreciation

Although Conkling's reply brief makes reference to the

27 improper depreciation claim numbered as predicate act 17, we do not

"consider arguments belatedly raised after appellees have filed

their brief" in the absence of manifest injustice. Najarro v.

First Fed. Sav. & Loan Ass'n, 918 F.2d 513, 516 (5th Cir.1990);

see also Smith v. Lucas, 9 F.3d 359, 367 n. 16 (5th Cir.1993). It

appears to us that Conkling waited to raise this argument until his

reply brief in order to evade the fifty-page limit set forth in

Federal Rule of Appellate Procedure 28(g), and thus it is not

"manifestly unjust" for this court to refuse to address it. See,

e.g., Neeley v. Banker's Trust Co., 757 F.2d 621, 634 n. 18 (5th

Cir.1985) (noting that the appellant's brief exceeded the 50-page

limit and "warn[ing] counsel that violations may result in the

Court's striking of their briefs sua sponte ").

f. In conclusion, ...

The trial court correctly perceived that the predicate acts

remaining for jury resolution—with the exception of Harmony—were

contingent as a matter of law upon a finding of fraud in the 1963

agreement. Accordingly, we hold that the trial court did not err

in granting summary judgment to the defendants on the RICO case.

C. Breach of Fiduciary Duty

The district court determined "that there is no factual or

legal basis to support [Conkling's] breach of fiduciary claim."

Accordingly, it granted summary judgment on Conkling's breach of

fiduciary duty claim. Although Conkling's brief on this issue is

almost entirely conclusory, inappropriately incorporating briefing

28 filed below,14 he has arguably raised the claim on appeal, and we

will employ our best efforts to review the grant of summary

judgment on this claim as applied to each factual circumstance.

Turner contends that the fiduciary duty claims are based upon

the same facts already found to be fatally deficient as causes of

action as discussed both supra and infra. However, after careful

review of the record on appeal, we have not found that Turner moved

for summary judgment on all of the breach of fiduciary duty

issues.15 Specifically, Turner did not move for summary judgment

14 Attorneys cannot circumvent the fifty-page limit of Federal Rule of Appellate Procedure 28(g) by incorporating by reference a trial memorandum. Walters v. First Tenn. Bank, N.A., 855 F.2d 267, 275-76 n. 5 (6th Cir.1988), cert. denied, 489 U.S. 1067, 109 S.Ct. 1344, 103 L.Ed.2d 812 (1989); see also Katz v. King, 627 F.2d 568, 575 (1st Cir.1980) ("If counsel desires our consideration of a particular argument, the argument must appear within the four corners of the brief filed in this court."). Cf. Neeley v. Banker's Trust Co., 757 F.2d 621, 634 n. 18 (5th Cir.1985) (noting that the appellant's brief exceeded the 50-page limit and "warn[ing] counsel that violations may result in the Court's striking of their briefs sua sponte."). 15 Many of the fiduciary duty claims were raised on summary judgment below. For example, Turner argued in his summary judgment papers that Conkling did not have standing to bring any of the asserted derivative claims as a matter of law, a position adopted by the district court. Moreover, and as discussed above, Conkling waived any damage claim with respect to the Merit transactions, and we interpret this waiver to include damages for breach of fiduciary duty. There is also an indication in Conkling's Supplemental Memorandum in Opposition to Defendants' Motions for Summary Judgment filed on December 11, 1991, that the court below sua sponte raised the issue of whether its decision in Nichols Constr. Corp. v. St. Clair, 708 F.Supp. 768 (M.D.La.1989), aff'd mem., 898 F.2d 150 (5th Cir.1990), was "applicable to the pendent breach of fiduciary duty claim asserted in this case by" Conkling. The Nichols case addressed St. Clair's similar allegations about an agreement to redeem, which the trial court rejected. Thus, these fiduciary duty claims appear to have been addressed and resolved in the summary judgment framework.

29 in the court below on the basis that the Harmony dilution claims

pled as a breach of fiduciary duty could be summarily adjudicated;

rather, he argued only that Conkling did not have standing to

assert Harmony claims derivatively.16 In fact, Turner has conceded

on appeal that a fact issue exists with respect to the Harmony

dilution transaction. Although that claim, as noted above, was

properly adjudicated in the RICO context on the basis that it was

the only predicate act available to Conkling, we conclude that the

conceded fact issue preserves it in the fiduciary duty context.

Similarly, Turner did not request summary disposition of the

fiduciary duty claims relating to the 1963 agreement and its

progeny. The summary judgment arguments and the jury issue went to

whether any of the actions or omissions stemming from that

agreement were fraudulent—not whether they constituted a breach of

any fiduciary duty. With respect to these claims, therefore,

Turner could not have met his initial summary judgment burden of

pointing out an absence of any fact issues by identifying portions

of the pleadings, discovery, and affidavits which support its

position. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106

S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Thus, the trial court's

grant of summary judgment on these fiduciary duty issues was in

error.

16 As noted above, the Harmony transaction, like many of the others, involved both derivative claims and individual claims between which the district court distinguished in granting and clarifying summary judgment. The clarification order explains that the trial court specifically disposed of the Harmony derivative claims, but retained the dilution claims.

30 D. Rule 50(a) Adjudication of Conkling's Breach of Contract Claim

The district court granted judgment as a matter of law on

this claim after the close of Conkling's case, and we review its

decision de novo, applying the same legal standard as it used.

Omnitech Int'l, Inc. v. The Clorox Co., 11 F.3d 1316, 1322-23 (5th

Cir.1994). Judgment as a matter of law is proper after a party has

been fully heard by the jury on a given issue, and "there is no

legally sufficient evidentiary basis for a reasonable jury to have

found for that party with respect to that issue." FED.R.CIV.P.

50(a). In evaluating such a motion, formerly referred to as a

motion for directed verdict, the court is to view the entire trial

record in the light most favorable to the non-movant, drawing all

factual inferences in favor of Conkling, the non-moving party, and

leaving credibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts to the

jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106

S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); see also Becker v.

PaineWebber, Inc., 962 F.2d 524, 526 (5th Cir.1992). The "decision

to grant a directed verdict ... is not a matter of discretion, but

a conclusion of law based upon a finding that there is insufficient

evidence to create a fact question for the jury." In re Letterman

Bros. Energy Sec. Litig., 799 F.2d 967, 972 (5th Cir.1986) (citing

Lubbock Feedlots, Inc. v. Iowa Beef Processors, Inc., 630 F.2d 250,

269 n. 22 (5th Cir.1980)), cert. denied, 480 U.S. 918, 107 S.Ct.

1373, 94 L.Ed.2d 689 (1987).

Article 2439 of the Louisiana Civil Code requires three

31 circumstances to concur to confect a contract: the thing sold, the

price, and mutual consent. LA.CIV.CODE ANN. art. 2439 (West 1952).

Article 2464 requires that the price of the sale be "certain," or,

as the provision further defines it, "fixed and determined by the

parties." LA.CIV.CODE ANN. art. 2464 (West 1952). To sustain a

cause of action for breach of an oral agreement for value in excess

of $500, a party must prove its existence by at least one witness

and corroborating circumstances. LA.CIV.CODE ANN. art. 1846 (West

1987); see also Dupuy v. Riley, 557 So.2d 703, 707-08 (La.Ct.App.)

(recognizing that oral contract for transfer of securities may be

proven under article 1846 by one credible witness and proof of

corroborating circumstances), writ denied, 563 So.2d 878

(La.1990).17 After a lengthy trial on this issue and the 1963

agreement, the trial court found that, as a matter of Louisiana

law, no oral agreement existed whereby Turner agreed to purchase

Conkling's stock for "fair value" upon termination of Conkling's

employment with Nichols.18 The court first concluded that the

17 In 1978, the Louisiana Legislature enacted a statute of frauds for securities transactions, requiring that such contracts be put into writing, see LA.REV.STAT.ANN. § 10:8-319 (West 1993), and thus Dupuy v. Riley, 557 So.2d 703, 707-08 (La.Ct.App.), writ denied, 563 So.2d 878 (La.1990), which was predicated entirely on a pre-1978 decision, has been called into question on this point. See Levinson v. Charbonnet, 977 F.2d 930, 932 (5th Cir.1992). However, since the alleged contract between Turner and Conkling was entered into prior to 1963, the recent statute has no application in this case. 18 The trial transcript reflects that Conkling's counsel conceded that Conkling had no agreement to redeem his stock with any of the defendant corporations. Accordingly, the trial court summarily dismissed that claim as abandoned. His allegations were therefore limited to an oral agreement with Turner that Turner would repurchase Conkling's stock.

32 evidence was legally insufficient to support the existence of an

agreement to repurchase. Essentially, the only person to testify

that the agreement was confected was Conkling, who admitted that he

could not remember any of the terms of the agreement or any

statements made by Turner. Although the Louisiana Supreme Court

has made clear that a "plaintiff may, himself, fulfill the

requirement for at least one credible witness," Samuels v.

Firestone Tire & Rubber Co., 342 So.2d 661, 662 (La.1977), the

court below did not consider Conkling's testimony to be

sufficiently specific to verify the existence of an oral contract,

concluding that, at best, the evidence showed that Conkling had an

"understanding" of Turner's obligation.

The court below further found that, even if it construed

Conkling's "understanding" as a binding agreement, there was no

evidence to corroborate the oral agreement. Conkling responded, as

he does before this court, that Louisiana law does not require that

a plaintiff provide "independent proof of every detail of [his]

testimony." Samuels, 342 So.2d at 662; see also Taylor v. Dowden,

563 So.2d 1294, 1297 (La.Ct.App.) ("[O]nly general corroboration

must be shown."), writ denied, 568 So.2d 1057 (La.1990). He argued

that (i) Turner's admission that he "told Mr. Conkling that when

Conkling left the company his stock would be redeemed at a "fair

price,' " (ii) Turner's handwritten notes referencing a potential

purchase of Conkling's "equity" in the event of termination, and

(iii) inferences he drew from certain patterns of events, were

sufficient to corroborate generally his testimony that an agreement

33 was reached.

The trial court nonetheless determined that any oral contract

failed for lack of a definite price, a term which must be fixed and

determined in order to create a binding contract of sale under

Louisiana law. LA.CIV.CODE ANN. art. 2464 ("The price of sale must

be certain, that is to say, fixed and determined by the parties.");

see also Louisiana Power & Light Co. v. United Gas Pipe Line Co.,

642 F.Supp. 781, 801 (E.D.La.1986) (A "price term [is] "essential

to the contract of sale,' and a failure to agree to such a term

would amount to a failure to establish a sales contract at all.").

The court below observed that there was nothing in the record to

show that the parties had a meeting of the minds as to how to

compute "fair value" and rejected Conkling's argument that "fair

value" was a sufficiently certain price under Louisiana law. We

agree. Although parties to a contract need not agree to a specific

price, they must agree to some ascertainable method to arrive at

that price in order to have a binding contract of sale under

Louisiana law. LA.CIV.CODE ANN. arts. 2464 & 2565; Compare

Directional Wireline Servs., Inc. v. Tillett, 552 So.2d 1201, 1214

(La.Ct.App.1989) (Even though parties' agreement provided that

"book value" would be used to compute stock redemption price,

dispute over proper procedure to calculate "book value" showed that

there was no "meeting of the minds" as to a definite price term and

defeated contract as a matter of law) with Hearty Burger of Harvey,

Inc. v. Brown, 407 So.2d 806, 808 (La.Ct.App.1981) (holding that

evidence supported trial court's conclusion that defendant knew

34 exact amount of principal obligation to be assumed, and defendant

could not complain that disagreement over the amount of interest

outstanding rendered the contract to assume plaintiff's obligation

fatally defective for lack of definite price; however, contested

interest would not be included in amount of sale). "[I]f the

parties have bound themselves in such a way that price may be later

determined as a consequence of their consent without any new act of

volition on their part, then the price is certain and the sale is

valid." Shell Oil Co. v. Texas Gas Transmission Corp., 210 So.2d

554, 560 (La.Ct.App.), writ denied, 252 La. 247 & 250, 214 So.2d

165 & 166 (1968).

Conkling cites to the Louisiana Supreme Court's opinion in

Benglis Sash & Door Co. v. Leonards, 387 So.2d 1171, 1172-73

(La.1980), for the proposition that "the parties can consent to buy

and sell a certain thing for a reasonable price, and when they do,

the contract for sale has been perfected. The essential thing is

that there is a meeting of the minds (as opposed to a disagreement)

as to price." In our view, the trial court properly confined the

holding in Benglis to its specific fact-setting. The parties in

Benglis had a prior course of dealings and a sufficiently mutual

understanding of price terms based upon this relationship, as

evidenced by the fact that the defendant did not object to the

price ultimately charged. Id. at 1173. Benglis did not

eliminate—but rather reemphasized—the necessity of showing that the

parties reached a meeting of the minds as to that term. In fact,

the cases decided after Benglis have not read it, as would Conkling

35 in this case, as a wholesale revision of the definite price

requirement of article 2464, but rather, as limited to its facts,

and have continued to require evidence of an objectively

ascertainable price. See Hunt v. Gulftrust Fund No. Fifteen, Inc.,

606 So.2d 25, 27 (La.Ct.App.1992) (Because parties to real estate

sale disagreed as to who would be responsible for mortgage payments

after sale, the conflicting testimony established that there had

been no meeting of the minds as to a definite price term.);

Sherman v. State Farm Mut. Auto. Ins. Co., 413 So.2d 644, 648-49

(La.Ct.App.) (distinguishing Benglis on grounds that the parties in

case presented had insufficient knowledge of amount of mortgage to

be assumed, and thus, price was not ascertainable "by computation

of definite facts"), writ denied, 414 So.2d 776 (La.1982); see

also Rutgers, State Univ. v. Martin Woodlands Gas Co., 974 F.2d

659, 662 (5th Cir.1992) (applying Shell Oil certainty test and

holding that contract which provided that parties would renegotiate

price terms each year and set a limit upon prospective increases in

price only with no corresponding floor lapsed after the end of the

first year for lack of a definite agreement as to future price);

cf. Anderson v. Namias, 477 So.2d 907, 909-10 (La.Ct.App.1985)

(Evidence clearly showed that defendant understood his deposit

constituted one-half of the sales price and confirmed that the

parties had agreed to a certain price.).

Wegman v. Central Transmission, Inc., 499 So.2d 436

(La.Ct.App.1986), writ denied, 503 So.2d 478 (La.1987), does not

alter our analysis. Conkling reads Wegman to uphold as definite

36 the use of the price term "equitable price," as amounting to a

"fair price" to which the plaintiff was found to be contractually

entitled. Conkling misreads Wegman. In that case, the parties had

several agreements relating to gas production and sale. Under the

"gas purchase agreement," the defendant was to buy gas from the

plaintiff, Wegman, for a certain price. A supplemental agreement

further provided that the parties would negotiate and come to an

"equitable agreement" as to price if a designated third party did

not purchase the gas from the defendant. The defendant—who sold

gas to parties other than the one designated in the parties'

agreement—argued that reading the two agreements together would

yield an unenforceable agreement for lack of a certain price. The

Louisiana court of appeals summarily rejected that argument,

holding that the two contracts could be read together without

eliminating the definite price term in the first. Alternatively,

it concluded that Wegman could recover a "fair price" for gas which

had been appropriated from his leased interests but improperly

credited to the production of other wells. Id. at 447 ("[W]hether

the contract specifies a price or not, Wegman is entitled to be

paid for his gas. The court must determine the fair market value

of Wegman's gas and award him that amount."). Although the court

of appeals cited to article 1995 of the Louisiana Civil Code,19 the

provision governing damages for breach of an obligation, its

analysis is in quantum meruit—i.e., that Wegman was entitled to

19 See LA.CIV.CODE ANN. art. 1995 ("Damages are measured by the loss sustained by the obligee and the profit of which he has been deprived.").

37 payment for gas previously acquired by the defendant. Id. Thus,

we do not interpret Wegman as permitting an "equitable" price to be

sufficiently definite to support a contract.

Moreover, in fact-settings more akin to that presented, the

Louisiana courts have found such terms as "book value," "market

rise," and "prevailing price" not to be sufficiently ascertainable

and thus fatal to the confection of a contract. See, e.g.,

Directional Wireline, 552 So.2d at 1214 (holding that parties'

failure to agree as to the method used to calculate "book value" of

stock to be purchased precluded meeting of the minds as to

essential element of price); Princeville Canning Co. v. Hamilton,

159 So.2d 14, 17, 18-19 (La.Ct.App.1963) (Contract providing that

sale prices will increase according to "market rise" does not

provide an objective method by which the price of the sale can be

established with certainty when there is no agreement as to a

method by which "market rise" can be determined.); Shell Oil, 210

So.2d at 558 (rejecting "prevailing price" as being too indefinite

without reference to a specific market from which it can be readily

discerned).

Similarly, no "agreed" price for Turner to redeem Conkling's

stock can be determined with any certainty because there is no

discernible agreement as to any method by which "fair value" could

be computed. Conkling suggests that the Nichols' board minutes

reflecting Turner's request for permission to negotiate a

redemption price based upon the underlying assets of the

corporation and his statement that he "might have to redeem" the

38 stock of the minority shareholders is conclusive proof that the

parties had previously agreed to a definite method to calculate

fair value. Conkling understands these portions of the minutes as

"mean[ing] that Turner was authorized to negotiate a price based

upon the value of the underlying assets of the companies, and if

they could not agree on a value for the underlying assets, then an

independent appraisal would be used." He offers the original

agreements between Nichols and its shareholders (including Turner

and Conkling) in 1962 and 1963—which included independent appraisal

clauses and certain guidelines for calculating redemption values—as

providing the method by which he and Turner would compute the "fair

value" of the stock. There are several problems inherent in

looking to the 1962 and 1963 agreements for guidance. First, the

two agreements have conflicting provisions regarding valuation.20

Moreover, the 1962 agreement was superseded by the 1963 agreement,

and, in 1966, the parties expressly voided that redemption formula

as well. Finally, and most importantly, Conkling did not testify

that he and Turner agreed to use any formulas set forth in these

agreements, but rather that he believed that fair value would be

calculated in his agreement with Turner as it was in the Nichols

agreements. His beliefs in this regard are merely speculation and

do not evidence that the parties reached a consensus as to a method

by which "fair value" could be calculated. Thus, Conkling's

20 For example, in the 1962 agreement, the redemption price would be calculated by a specific formula if the appraisers determined the per share value of the stock to exceed $1,000. There is no such provision in the 1963 agreement.

39 argument that these agreements offer instruction for agreed

redemption values is strained. In sum, we find that, in the case

presented, "fair value" is "not capable of being ascertained by

computation of definite facts; it can not be deemed certain in the

present case." Sherman, 413 So.2d at 648. Accordingly, we affirm

the district court's elimination of this claim from the jury's

consideration.

E. Subsequent Oral Modification Evidence

Conkling next takes issue with the trial court's instruction

to the jury to disregard evidence of an alleged subsequent oral

agreement modifying the 1962 agreement. Conkling testified at

trial that, after the written agreement was executed in 1962,

Turner modified the agreement by giving him a stock certificate and

informing him that the stock was in exchange for previous services.

However, the district court interrupted his testimony in this

regard and instructed the jury to disregard any agreements "except

for the 1962 agreement and the 1963 agreement.... The witness can

testify what happened post [19]63 but not pre [19]63 regarding

other agreements between the parties." Conkling argues that the

subsequent oral modification of the 1962 agreement should have been

admitted and directs our attention to Article 1848 of the Louisiana

Civil Code, providing that:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.

LA.CIV.CODE ANN. art. 1848 (West 1987) (emphasis added).

40 Conkling's argument that the oral agreement modified the

earlier, 1962 agreement misses the mark. The focus of this case is

upon the written, 1963 agreement. Under Conkling's own version of

the facts, this alleged oral agreement was entered into before the

1963 agreement. The pertinent provision of Article 1848 limits

consideration of such evidence to "subsequent and valid oral

agreement[s]" in particular situations, in which "the interest of

justice" will be best served by introducing the testimony.

Similarly, the cases are legion that parol evidence may not be

admitted to vary the terms of a written contract except in the

above-enumerated circumstances. Billingsley v. Bach Energy Corp.,

588 So.2d 786, 791 (La.Ct.App.1991); Bank of Coushatta v. Patrick,

503 So.2d 1061, 1065-66 (La.Ct.App.), writ denied, 506 So.2d 1231

(La.1987); Texaco, Inc. v. Newton and Rosa Smith Charitable Trust,

471 So.2d 877, 881-82 (La.Ct.App.), writ denied, 475 So.2d 1104

(La.1985). The facts presented do not warrant such consideration.

Moreover, the 1963 agreement—voluntarily executed by

Conkling—provided that it was "the sole agreement by and between

the parties in connection with the purchase or sale of any and all

interests in and to Nichols Construction Corporation, being

substituted for any previous agreement or understanding, oral or

otherwise" (emphasis added). The agreement was signed by both

Turner and Conkling as "parties." The entire purpose of the 1963

agreement was to provide a mechanism whereby Conkling could acquire

stock in Nichols. The plain terms of the 1963 agreement allocated

41 8% of the stock outstanding to Conkling.21 Pursuant to the 1963

agreement, the minority shareholders, including Conkling, were to

pay $100 for their stock, and the undisputed facts show that they

paid the amount and received the certificate. Under the facts

presented, the inclusion of the merger clause leads us to conclude

that the clause correctly reflected the parties' intentions and

consequently precludes evidence of any alleged prior agreement.

Omnitech, 11 F.3d at 1328 (holding that a merger clause "correctly

reflect[ing] the parties' intentions ... should thus be enforced as

written."); Johnson v. Orkin Exterminating Co., 746 F.Supp. 627,

633 (E.D.La.1990) (same). First, we note that, during the period

between the two agreements, several circumstances had changed

considerably the ownership distribution of Nichols' stock—most

notably, the redemption of Eaton's stock. It appears to this court

that the whole purpose in entering into the 1963 agreement was to

confirm relative ownership and that, had Conkling believed the

document did not accurately reflect the distribution, he would have

objected at that point. It is completely inconsistent for Conkling

to harbor a secret belief that he was entitled to a larger

percentage and yet to execute a document that unequivocally set

21 As noted supra at section I.A, the ownership interests in Nichols were apportioned as follows:

Bert S. Turner 76 per cent

Carmen L. St. Clair 8 per cent

Richard L. Conkling 8 per cent

J.B. Millican 8 per cent

42 forth his ownership rights in such explicit terms. Moreover,

Conkling was able to introduce evidence that he executed the 1963

agreement under fraudulent circumstances, and the jury rejected

that argument in resolving the issue against him. Finally,

Conkling's own testimony revealed that he (i) received 8% of

Nichols' stock in accordance with the 1963 agreement, (ii)

reaffirmed his ownership interest as being 8%, rather than

8.69565%, in numerous documents, including tax returns and

sub-chapter S conversion documents, (iii) received dividends based

upon an 8% interest, and (iv) acquired relative ownership in

affiliated companies based upon the 8% interest, yet never breathed

a word of objection to Turner. For these reasons, we hold that the

trial court properly preserved the jury's focus upon the evidence

relevant to the actual execution of the 1963 agreement to determine

whether it was tainted by fraud and properly excluded testimony of

this alleged oral agreement.

F. Claims Against Carpenter

The defendants defend the summary judgment on Conkling's

causes of action relating to Carpenter in an abundance of caution,

though Conkling did not address these claims in his appellant's

brief. Conkling did respond to the defendants' contentions about

Carpenter in his reply brief; however, as noted above, this court

does not, in the absence of manifest injustice, consider claims

raised for the first time after the opening briefs are filed by the

appellant and appellee(s). Najarro, 918 F.2d at 516; see also

Smith v. Lucas, 9 F.3d at 367 n. 16. Conkling offers, and we can

43 discern, no reason why he failed to bring up this alleged error in

his initial brief. Accordingly, we see no manifest injustice in

refusing to address the issue.

III. Conclusion

For the foregoing reasons, we reverse and remand the district

court's summary adjudication of Conkling's breach of fiduciary duty

claims as described above. In all other respects, we affirm the

judgment of the district court. Each party is to bear his own

costs of this appeal.

AFFIRMED in part, REVERSED and REMANDED in part.