UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 93-1232

Missouri Pacific Railroad Company,

d/b/a Union Pacific Railroad Co.,

Plaintiff-Appellant

Cross Appellee,

VERSUS

Harbison-Fischer Manufacturing Co.,

Defendant-Third Party

 Plaintiff-Appellee

 Cross Appellant,

CUSTOM WIRE MFG., INC.,

Third Party Defendant

Cross-Appellee.

Appeals from the United States District Court

for the Northern District of Texas

(July 6, 1994)

Before GOLDBERG, DAVIS, and DEMOSS, Circuit Judges.

DEMOSS, Circuit Judge:

The district court below rendered several summary judgments

in this multi-party case arising out of two consecutive leases of

railroad property. We affirm two of the court's rulings, reverse

one of them, and affirm the court's denial of a request for

attorney's fees. 

I.
In 1956, the Texas & Pacific Railway Company (TPRC) leased

real property located in Forth Worth, Texas, to Harbison-Fischer

Manufacturing. Upon entering the land, Harbison-Fischer built

several buildings on the leased property. The lease provided

that Harbison-Fischer would remove its plant and equipment within

30 days of the termination of the lease and that, if HarbisonFischer failed to do so, TPRC could acquire title to the plant

and equipment by notifying Harbison-Fischer within 30 days. The

lease did not specify what would be the state of title in the

event the lessor failed to give the notice to acquire title. The

Missouri Pacific Railroad Company (MOPAC) later acquired TPRC,

making MOPAC the lessor under the lease agreement. 

On December 12, 1983, Harbison-Fischer notified MOPAC that

Harbison-Fischer was terminating the lease effective January 14,

1984. On December 29, 1983, MOPAC acknowledged HarbisonFischer's termination notice and requested that Harbison-Fischer

remove its property by January 14, 1984. Harbison-Fischer,

however, never removed its plant. MOPAC, meanwhile, never

notified Harbison-Fischer that it elected to acquire title to the

abandoned plant and equipment. At some point the following year,

a machine tools company entered the abandoned property without a

lease and began operations. MOPAC learned of the operations and

in January 1985 sent a letter to Bill Mims, the company's head,

instructing him to vacate the premises. 

MOPAC then leased the plant and equipment to Custom Wire

Manufacturing in July 1987 for a term of one year, with automatic

renewal on an annual basis. The comprehensive, ten-page lease
 

1The record does not indicate whether the fire occurred

before or after Custom Wire signed the lease with MOPAC. Custom

Wire presumably would not enter a lease for property that had

been destroyed by fire. In fact, the parties obviously

recognized the possibility of a fire because the MOPAC/Custom

Wire lease contained a "Fire Damage Release" clause, whereby the

parties acknowledged the property was "in dangerous proximity" to

railroad tracks and that "there will be constant danger of injury

and damage by fire, and the Lessee accepts this Lease subject to

such danger."

3

provided, inter alia, that Custom Wire would comply with federal

environmental laws and be responsible for any costs associated

with the release of oil and hazardous substances. The lease also

permitted MOPAC to re-enter and re-possess the property in the

event Custom Wire defaulted. Finally, the lease authorized MOPAC

to take title to the plant and equipment and sell it if Custom

Wire failed to remove it upon termination of the lease. The

lease neither referred to the MOPAC/Harbison-Fischer lease nor

conditioned any of the parties' rights and obligations upon

Harbison-Fischer's approval. 

The plant eventually was destroyed by fire in 19871, which

either created or aggravated an environmental hazard. In

November 1989, MOPAC sued Harbison-Fischer in Texas state court

for various tort claims and for breach of contract due to

Harbison-Fischer's failure to remove the plant. Two days later,

Harbison-Fischer sued MOPAC and Custom Wire in a different state

court for a declaratory judgment on both its lease with MOPAC and

MOPAC's lease with Custom Wire. Harbison-Fischer also sued MOPAC

and Custom Wire for attorneys' fees. The two suits were

consolidated in state court in February 1990. 
 

2Fort Worth had ordered MOPAC to demolish the plant and

remediate the site. 

 

3The order to answer MOPAC's amended petition was made

pursuant to FED. R. CIV. P. 15(a), whereas the order to re-file

the summary judgment motions was made pursuant to LOCAL R. 5.2(a). 

4

In August 1992, Harbison-Fischer moved for summary judgment

against MOPAC and Custom Wire. Harbison-Fischer asserted that

(1) MOPAC's claims against it were barred by Texas's four-year

statute of limitations on contracts, and (2) the MOPAC/Custom

Wire lease established that Custom Wire -- and not HarbisonFischer -- was liable for any claims relating to the demolition

of the plant. Custom Wire filed its own summary judgment motion

in September 1992, arguing that Harbison-Fischer was not a party

to the MOPAC/Custom Wire lease and, therefore, had no standing to

assert that Custom Wire is liable for damages. 

In October 1992, before the state trial court had ruled on

Harbison-Fischer's and Custom Wire's summary judgment motions,

MOPAC amended its petition, deleting the contract cause of action

against Harbison-Fischer but adding an action for recovery of

environmental remediation costs.2 Harbison-Fischer then removed

the case to federal court because MOPAC's action for remediation

costs arises under federal law. Recognizing that HarbisonFischer and Custom Wire had not answered MOPAC's amended

petition, the federal district court ordered the parties to

answer and re-file their respective summary judgment motions.3 

Harbison-Fischer at the same time moved for leave to amend

its notice of removal because the state court had granted summary
 

4Concurrent with its motion for leave to amend its removal

notice, Harbison-Fischer alternatively filed a motion to remand

the state law claims. 

 

5The district court also denied Harbison-Fischer's motion to

remand the state law claims because "piecemeal remand" would be

"inappropriate." 

5

judgment in favor of Harbison-Fischer as to MOPAC's state law

tort claims against Harbison-Fischer.4 In an attempt to secure

the benefit of the state court's decision (which was made

subsequent to Harbison-Fischer's original notice of removal),

Harbison-Fischer sought to amend its notice removal to stress

that it intended to remove only MOPAC's environmental remediation

claim. The federal district court, however, denied HarbisonFischer's motion, noting additionally that the state court's

decision was meaningless because it was rendered after HarbisonFischer had properly removed the case.5

In December 1992, the district court granted HarbisonFischer's summary judgment motion as to MOPAC on the basis of

limitations but denied its motion as to Custom Wire. The court

also denied Harbison-Fischer's claim against MOPAC and Custom

Wire for attorneys' fees. The court granted Custom Wire's

summary judgment motion against Harbison-Fischer. The court then

entered final judgment for Harbison-Fischer and Custom Wire,

stating that MOPAC and Harbison-Fischer, respectively, take

nothing on their claims.

The following month MOPAC moved for a new trial, asserting

that the scope of Harbison-Fischer's summary judgment motion had

been limited to MOPAC's state law claims and that MOPAC's
 

6Harbison-Fischer also moved for a new trial, but only if

the court granted MOPAC's motion. Once the court denied MOPAC's

motion, Harbison-Fischer's motion became moot. 

6

environmental remediation claim had been reserved for further

deliberations. The district court denied MOPAC's motion for a

new trial.6 MOPAC now appeals the court's summary judgment for

Harbison-Fischer. Harbison-Fischer appeals the court's summary

judgment for Custom Wire and the court's denial of its claim for

attorneys' fees. 

II.

We review a summary judgment de novo, applying the same

standard as the district court. D.E.W., Inc. v. Local 93,

Laborers' Int'l. Union, 957 F.2d 196 (5th Cir. 1992). Therefore,

summary judgement is appropriate "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 a

judgment as a matter of law." FED. R. CIV. P. 56(c). In

reviewing the facts contained therein, we draw all inferences in

a light most favorable to the nonmoving party. McCarty v. United

States, 929 F.2d 1085, 1089 (5th Cir. 1991). 

III.

We begin our analysis by reviewing the district court's

summary judgment for Harbison-Fischer as to all of MOPAC's

claims. For reasons that are apparent below, we will separate

our discussion of the state law tort claims from the

environmental remediation claim. 
 

7The interference with contract claim specifically alleges

that Harbison-Fischer frustrated MOPAC's ability to sell its

property when Harbison-Fischer refused to remove the buildings. 

7

A.

MOPAC first argues that the district court improperly

granted Harbison-Fischer summary judgment as to its state law

tort claims because Harbison-Fischer insufficiently pleaded an

essential element of its case with which it had the burden of

proof at trial. Specifically, MOPAC argues that because

Harbison-Fischer asserted that MOPAC's claims were barred by

limitations, which is an affirmative defense, Harbison-Fischer

bore the burden of establishing when MOPAC's causes of action

accrued. MOPAC had three outstanding tort claims when HarbisonFischer moved for summary judgment: (1) continuing trespass, (2)

continuing nuisance, and (3) interference with contract.7

MOPAC recognizes that its breach of contract action was

barred by Texas's four-year contract statute of limitations but

asserts that the four-year statute became irrelevant once the

contract claim was deleted. The proper limitations period, MOPAC

asserts, is the separate tort limitations period. MOPAC

essentially argues that Harbison-Fischer failed to meet its

burden by relying on the contracts limitations period rather than

the torts limitations period. Thus, it concludes, the district

court's ruling that MOPAC's claims were "barred by limitations"

was inappropriate. MOPAC's argument is not without merit. 

Notwithstanding its claims to the contrary, Harbison-Fischer

never outlined to the court the applicable torts statute of
8

limitations or explained why, in its opinion, MOPAC was barred by

such limitations. Because it asserted a limitations defense,

Harbison-Fischer bore this burden at the summary judgment stage.

But Harbison-Fischer's omission does not require us to

reverse the district court's summary judgment at this point. 

Although the court based its summary judgment for HarbisonFischer on limitations, Harbison-Fischer provided an alternative

basis for granting its motion: lack of ownership. Specifically,

Harbison-Fischer argued that before its burden of establishing

its affirmative defense arose, MOPAC had to make a threshold

showing that Harbison-Fischer owned the buildings when the

damages occurred. 

We agree with Harbison-Fischer's analysis. MOPAC's three

state-law tort claims are premised on the assumption that

Harbison-Fischer, in fact, owns the buildings that gave rise to

MOPAC's tort claims. Harbison-Fischer clearly cannot be liable

for trespass or nuisance for buildings that it does not own. 

Similarly, Harbison-Fischer's refusal to remove the buildings

cannot make it liable for contract interference when it does not

own the buildings and, therefore, has no duty to remove them. 

Ownership, in other words, is a necessary element of each of

MOPAC's claims. See, e.g., City of Arlington v. City of Fort

Worth, 873 S.W.2d 765, 769 (Tex. Ct. App. 1994); Allen v.

Virginia Hill Water Supply Corp., 609 S.W.2d 633, 635-36 (Tex.

Ct. App. 1980). MOPAC would have had the burden of proof at

trial to establish that element, regardless of whether Harbison-
9

Fischer satisfied its own burden, i.e., the affirmative defense

of limitations. 

The appropriateness of the district court's summary judgment

therefore narrows to a question of whether Harbison-Fischer

tendered sufficient evidence to demonstrate that no genuine issue

of material fact existed as to whether it owned the buildings. 

To show that it no longer owns the buildings, Harbison-Fischer

submitted various items in conjunction with its summary judgment

motion. Harbison-Fischer asserts that its evidence establishes,

if anything, that MOPAC -- and not Harbison-Fischer -- owns the

buildings. 

Harbison-Fischer points to three items, the first being the

August 1992 affidavit of George Stowe, Harbison-Fischer's vice

president of manufacturing. Stowe states that Harbison-Fischer

had not occupied the premises since February 1984 and that, since

then, numerous individuals contacted Harbison-Fischer about

leasing or purchasing the property from MOPAC. Stowe further

states that in each instance, Harbison-Fischer disclaimed any

ownership interest in the buildings and referred the individuals

to MOPAC. 

Second, Harbison-Fischer relies on MOPAC's eviction letter

in January 1985 to Bill Mims, the head of the machine tools

operation that had occupied the buildings without consent. MOPAC

advised Mims that because "there is no lease agreement between

the respective parties, you are unlawfully trespassing upon these

premises." MOPAC ordered Mims to vacate the buildings and warned
 

8MOPAC, rather limply, argues that it believed a response

was not necessary because, when the district ordered HarbisonFischer and Custom Wire to re-file their motions for summary

judgment, the court did not require MOPAC to file a response. 

MOPAC contends that the response it filed to Harbison-Fischer's

summary judgment motion in state court was sufficient. The

district court correctly points out that "there would have been

no point whatsoever in having [Harbison-Fischer] and [Custom

Wire] refile their motions in accordance with the Local Rules if

[MOPAC] was not required to respond." Notwithstanding MOPAC's

major procedural mistake, the district court below granted

Harbison-Fischer summary judgment on the merits. We therefore

will review the issue on the merits. 

10

him that it would seek any costs incurred to forcibly remove him

and his company's belongings. 

Third, and most importantly, Harbison-Fischer points to the

MOPAC/Custom Wire lease as evidence that MOPAC -- not HarbisonFischer -- owned the buildings. The July 1987 lease, inter alia,

provided for Custom Wire to lease from and pay rent to MOPAC for

use of the buildings, to maintain proper care of the buildings,

to pay taxes on the buildings, and to refrain from subletting the

buildings. The lease also permitted MOPAC to re-enter the

premises in the event that Custom Wire defaulted. HarbisonFischer argues that the MOPAC/Custom Wire lease, combined with

the Stowe affidavit and the eviction letter to Mims, demonstrate

that MOPAC assumed dominion and control over the buildings and,

hence, became the owner. Accordingly, Harbison-Fischer

concludes, MOPAC now is estopped from attempting to establish

Harbison-Fischer as the owner. 

MOPAC failed to respond to Harbison-Fischer's motion for

summary judgment in federal district court8 and thus never

directly rebutted Harbison-Fischer's motion and accompanying
11

evidence. MOPAC claims, however, that a genuine issue of

material fact as to ownership still existed at that point because

of the termination provision in the MOPAC/Harbison-Fischer lease,

which Harbison-Fischer also had submitted with its motion. The

provision clearly states that MOPAC would take title to the

buildings only if Harbison-Fischer failed to remove them after

expiration of the lease and, shortly thereafter, MOPAC notified

Harbison-Fischer that it (MOPAC) had elected to take title. 

MOPAC notes that it never elected to take title to the buildings. 

Consequently, MOPAC argues, ownership of the buildings has always

remained with Harbison-Fischer.

We agree with Harbison-Fischer that, based on its conduct

beginning in January 1985, MOPAC now is estopped from asserting

that Harbison-Fischer still owns the buildings. Under Texas law,

"the principle of quasi-estoppel precludes a party from

asserting, to another's disadvantage, a right inconsistent with a

position he has previously taken." Enochs v. Brown, 872 S.W.2d

312, 317 (Tex. Ct. App. 1994). The doctrine applies in those

cases where it would be unconscionable to allow a person to

maintain a position inconsistent with one in which he accepted a

benefit. Stuebner Realty 19 v. Cravens Road 88, Ltd., 817 S.W.2d

160, 164 (Tex. Ct. App. 1991). The effect of estoppel is to

prevent the assertion of what would otherwise be an unequivocal

right. LaRue v. LaRue, 832 S.W.2d 387, 391 (Tex. Ct. App. 1992). 

The MOPAC/Custom Wire lease in particular leads us to conclude
 

9This provision also permitted MOPAC, upon reentry, to

remediate the property itself and then seek reimbursement from

Custom Wire.

12

that MOPAC is estopped from denying ownership of the buildings. 

The lease required Custom Wire to:

(1) pay MOPAC $500 a month rent from September 1987 to

March 1988, and then $2,000 a month thereafter;

(2) pay any taxes levied upon the buildings during the

course of the lease;

(3) refrain from subletting the buildings or assigning the

lease;

(4) paint the buildings with a color satisfactory to MOPAC;

(5) submit to MOPAC for approval any proposed additions to

or alterations of the buildings; and 

The lease also established two conditions precedent, other than

expiration of the lease, that would allow MOPAC to reenter the

premises:

(1) Custom Wire fails to remediate any portion of the

premises that burns;9 and 

(2) Custom Wire defaults on the lease. 

Given the broad benefits MOPAC afforded itself in the lease,

it cannot now claim that it does own the buildings to the

disadvantage of Harbison-Fischer. If MOPAC believed then, as it

so vigorously asserts now, that Harbison-Fischer owned the

buildings, then it would have made reference to that fact and

conditioned the Custom Wire lease on Harbison-Fischer's right of

ownership. But the MOPAC/Custom Wire lease mentions neither

Harbison-Fischer's alleged ownership interest nor the

MOPAC/Harbison-Fischer lease. It is wholly unconditional and
 

10MOPAC also pleaded a state environmental claim against

Harbison-Fischer, but we cannot glean from MOPAC's pleading the

precise state environmental claim it has pled. Thus, we will

treat MOPAC's environmental claim as solely a federal one.

13

noticeably silent as to any prior lessor/lessee relationship

between MOPAC and Harbison-Fischer. 

Even though summary judgment was granted on the basis of

limitations, we can affirm the district court on the alternate

grounds asserted below. See, e.g., Harbor Ins. Co. v. Urban

Constr. Co., 990 F.2d 195, 199 (5th Cir. 1993) ("A grant of

summary judgment may be affirmed on a legal basis not ruled upon

below. `We may affirm even in situations in which the district

court's ruling was incorrect, as long as the result was

proper.'") (quoting Texas Refrig. Supply, Inc. v. FDIC, 953 F.2d

975, 980 (5th Cir. 1992)). Accordingly, we hold that because no

genuine issue of material fact existed as to ownership of the

buildings, the district court's summary judgment for HarbisonFischer on MOPAC's state law tort claims was appropriate. 

B.

We now take up the issue of MOPAC's environmental

remediation claim.10 MOPAC argues that the district court's

summary judgment for Harbison-Fischer on that claim was improper

because Harbison-Fischer had limited its summary judgment motion

to just the state law tort claims. MOPAC, in fact, argues that

Harbison-Fischer probably was as surprised as MOPAC when the

district court ruled that MOPAC take nothing on all of its claims

against Harbison-Fischer. MOPAC points to the motion itself,
14

wherein Harbison-Fischer stated that the district court should

grant summary judgment as to MOPAC's "State Law Claims" if it

chose to retain jurisdiction over them. MOPAC also notes that

Harbison-Fischer's motion does not address the elements of a

federal environmental claim under the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§

9601-75, and the absence of a genuine issue of material fact as

to each element. Finally, MOPAC relies on the parties' joint

status report to the district court in December 1992. The

report, which was submitted two weeks prior to the court's

ruling, states that, with regard to the environmental remediation

claim, "[t]he parties estimate that they will need approximately

six (6) months to determine the necessity for joinder of

additional parties." 

Harbison-Fischer insists that its motion was intended to

cover all of MOPAC's claims. Like MOPAC, Harbison-Fischer relies

on the wording of its motion. It notes that its motion requested

"a full summary judgment as a matter of law against both MOPAC

and Custom Wire" and also addressed the issue of hazardous waste

and substances by quoting directly from the MOPAC/Custom Wire

lease. As for the joint status report, Harbison-Fischer

characterizes it as incompetent summary judgment evidence because

it was filed after Harbison-Fischer's motion for summary judgment

was filed. 

We agree with MOPAC that Harbison-Fischer's motion was

limited to just MOPAC's state law claims. The movant has the
15

initial burden of demonstrating the absence of material fact

issues. Abbott v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir.

1993). Harbison-Fischer failed to meet that burden. Its motion

neither delineates the precise elements of MOPAC's environmental

remediation claim nor even attempts to demonstrate how no genuine

issue of material fact exists as to any of them. As for

Harbison-Fischer's contention that the motion requests a "full

summary judgment," that sentence immediately follows the sentence

wherein Harbison-Fischer refers to the "State Law Claims." We

construe the juxtaposition of these phrases to mean that

Harbison-Fischer sought summary judgment only as to all three of

MOPAC's state law tort claims. 

We note that our conclusion here is consistent with the

wealth of evidence in the record that speaks to HarbisonFischer's state of mind at the time of the court's summary

judgment ruling. To begin with, the timing of Harbison-Fischer's

motion is telling. Harbison-Fischer filed its motion in December

1992, less than three weeks after the state trial court notified

the parties that it had granted Harbison-Fischer summary judgment

on MOPAC's tort claims. To secure the benefit of that ruling,

Harbison-Fischer naturally attempted to remand MOPAC's state

claims to the state court and, in the event the federal district

denied Harbison-Fischer's request, sought a similar ruling from

the federal court. 

The timing of the joint status report is equally telling. 

The report was filed on December 14, 1992, ten days after
16

Harbison-Fischer moved for summary judgment. The report's

reference to the parties' need for an additional six months for

discovery immediately followed a recitation of pending motions in

the case, including Harbison-Fischer's summary judgment motion. 

Harbison-Fischer alleges on appeal that it moved for summary

judgment on all of MOPAC's claims. But surely Harbison-Fischer

would not have moved for summary judgment on a claim that it

contemporaneously believed required an additional six months of

discovery. As for Harbison-Fischer's claim that the joint status

report is incompetent evidence, we note that the controlling time

is not when Harbison-Fischer filed its summary judgment motion

but when the district court's ruling was made. We have stated

that "our review [of a summary judgment] is confined to an

examination of materials before the lower court at the time the

ruling was made." Nissho-Iwai Am. Corp. v. Kline, 845 F.2d

1300, 1307 (5th Cir. 1988). Here, the joint status report, which

was compiled at the request of the court, was filed two weeks

before the court's summary judgment ruling. The report therefore

is competent evidence, particularly with regard to the scope of

Harbison-Fischer's summary judgment motion. 

Having concluded that Harbison-Fischer's summary judgment

motion was limited to MOPAC's state law tort claims, we now

consider whether summary judgment for Harbison-Fischer on MOPAC's

environmental remediation claim was appropriate. Given the

limited scope of Harbison-Fischer's request, the only explanation

for the court's ruling is that it chose to grant Harbison-Fischer
 

11Our ruling here does not mean that summary judgment for

any party on this claim will never be appropriate. We mean only

that at this point in the litigation, summary judgment for

Harbison-Fischer is inappropriate. 

17

summary judgment sua sponte, and we will treat the court's ruling

as such. District courts are empowered to grant summary judgment

sua sponte, provided the losing party is on notice that it had to

come forward with all of its evidence. See Celotex Corp. v.

Catrett, 477 U.S. 317, 326 (1986); Arkwright-Boston Mfrs. Mut.

Ins. Co. v. Aries Marine Corp., 932 F.2d 442, 444-45 (5th Cir.

1991). We find that MOPAC had no such notice. First, as we

already have concluded, Harbison-Fischer had not moved for

summary judgment on MOPAC's environmental remediation claim. 

Second, at the time of the court's ruling, the parties had not

conducted discovery on MOPAC's remediation claim because it was

less than three months old. As the joint status report

indicates, the parties obviously intended to use the coming

months to proceed with discovery and join additional parties as

to that claim. We therefore conclude that the district court's

sua sponte summary judgment for Harbison-Fischer on the

remediation claim was inappropriate.11

III.

We now address the district court's summary judgment for

Custom Wire on Harbison-Fischer's liability claim against Custom

Wire. Harbison-Fischer argues that the MOPAC/Custom Wire lease

establishes that Custom Wire -- and not Harbison-Fischer -- is

liable for any environmental remediation costs MOPAC asserts
18

against Harbison-Fischer. Harbison-Fischer notes that the

MOPAC/Custom Wire lease clearly provides that, as between MOPAC

and Custom Wire, Custom Wire is responsible for remediation

responsibilities arising during the course of the Custom Wire's

lease. Harbison-Fischer further contends that it has a right to

sue for enforcement of the MOPAC/Custom Wire lease because it is

a third-party beneficiary of that lease. Harbison-Fischer claims

that once Custom Wire delivered Harbison-Fischer a copy of the

MOPAC/Custom Wire lease in exchange for Harbison-Fischer's

building plans, Harbison-Fischer became a third-party beneficiary

to the lease. 

Custom Wire responds that the question of third-party

beneficiary status is determined by examining the MOPAC/Custom

Wire lease itself. Because the lease was never intended to

benefit Harbison-Fischer, Custom Wire argues, Harbison-Fischer

cannot assert third-party beneficiary status. Custom Wire also

points out that Harbison-Fischer failed to cite any authority for

its proposition that the exchange between Harbison-Fischer and

Custom Wire somehow vested Harbison-Fischer with such status. 

We agree with Custom Wire that Harbison-Fischer is not a

third-party beneficiary under the MOPAC/Custom Wire lease and,

therefore, cannot sue for enforcement of the lease. Under Texas

law, a non-party to a contract has a heavy burden when it claims

third-party beneficiary status. RTC v. Kemp, 951 F.2d 657, 662

(5th Cir. 1992). The claimant must show that (1) it was not

privy to the contract, (2) the contract was actually made for the
 

12We stress that our ruling here is limited to HarbisonFischer's claim that Custom Wire is liable to MOPAC for

remediation, here and now, based on the MOPAC/Custom Wire lease. 

We therefore are not precluding MOPAC and/or Harbison-Fischer, if

they so choose, from joining Custom Wire pursuant to CERCLA as

that claim proceeds. 

19

claimant's benefit, and (3) the contracting parties intended for

the claimant to benefit from the contract. Hellenic Inv., Inc.,

v. Kroger Co., 766 S.W.2d 861, 864 (Tex. Ct. App. 1989). As for

the question of intent (i.e., the second and third elements), we

begin with the presumption that parties contract for themselves

and that a contract will not be construed to benefit a third

party unless the contracting parties clearly intended to do so. 

Talman Home Fed. Sav. & Loan Assoc. v. American Bankers Ins., 924

F.2d 1347, 1351 (5th Cir. 1991). We have scoured the

MOPAC/Custom Wire lease to find any such intent and can find

none. The lease never mentions Harbison-Fischer, particularly

with regard to the allocation of remediation responsibilities. 

Furthermore, Harbison-Fischer fails to cite any authority for its

novel theory that the exchange between Harbison-Fischer and

Custom Wire vested Harbison-Fischer with third-party beneficiary

status. Because no genuine issue of material fact existed as to

Harbison-Fischer's status, we conclude that the district court's

summary judgment for Custom Wire on Harbison-Fischer's claim was

appropriate.12

IV.

Finally, we address Harbison-Fischer's claim for attorney's

fees. Harbison-Fischer failed to cite authority -- below or on
wjl\opin\93-1232.opn

jwl 20

appeal -- for its claim, and we decline to find any on its

behalf. The court's denial of Harbison-Fischer's request was

proper. 

V.

Accordingly, for the reasons stated above, we AFFIRM the

district court's summary judgment for Harbison-Fischer on MOPAC's

state law tort claims, REVERSE and REMAND for further proceedings

the court's summary judgment for Harbison-Fischer on MOPAC's

federal environmental remediation claim, AFFIRM the court's

summary judgment for Custom Wire on Harbison-Fischer's liability

claim pursuant to the MOPAC/Custom Wire lease, and AFFIRM the

court's denial of Harbison-Fischer's request for attorney's fees.