* Pursuant to Local Rule 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited circumstances

set forth in Local Rule 47.5.4.

 

1 This court agrees that the district court’s judgment was final and

appealable pursuant to 28 U.S.C. § 1291.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 95-20340

_______________________

FIRST OVERTON CAPITAL CORPORATION,

Appellant,

versus

MIDWEST FIRST FINANCIAL, INC.,a Nebraska Corporation,

WILLIAM PRESTON, and MIDWEST FIRST FINANCIAL LIMITED

PARTNERSHIP II, a Nebraska Limited Partnership,

Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-94-337)

_________________________________________________________________

May 13, 1996

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

The court has carefully considered appellant’s arguments

in light of the briefs, oral argument and record of the trial court

proceedings. Having done so, we must affirm the decision of the

district court.1 In particular, we agree with the district court

that the contractual relationship between First Overton and Midwest
2

First did not give rise to a contractual covenant of good faith and

fair dealing under Texas law, and no special relationship or

fiduciary relationship existed between the parties. See Great

American Insurance Co. v. North Austin Mun. Util. Dist. #1, 908

S.W.2d 415, 418 (Tex. 1995); Crim Truck & Tractor Co. v. Navistar

Int’l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992). Further, the

district court properly granted summary judgment on First Overton’s

tort claims because as a matter of law, First Overton did not

suffer damages to support its fraud claim, nor has First Overton

alleged any distinct actual damages independent of economic loss

resulting from the alleged breach of contract. Southwestern Bell

Tel. Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex. 1991).

Further, we find no error in the district court’s

conclusion that Texas Rule of Civil Procedure 11 bars the

enforcement of the parties’ attempt at settlement, because no

written settlement agreement was filed with the court nor was a

stipulation made in open court as required by the rule. As the

court found, the parties did not agree on a written settlement

agreement.

Finally, the district court’s interpretation of the

parties’ letter agreement correctly calculates the allocation of

profits between the parties. The Letter Agreement dated July 13,

1993 states that Midwest Partnership will pay Midwest and First

Overton an acquisition fee “equal to 50% of the aggregate Profits

(as defined the Partnership Agreement) which exceed a 30%

annualized rate of return on the Initial Capital Contribution (as
3

defined in the Partnership Agreement) of the Limited Partners (as

defined in the Partnership Agreement).” The starting date for

calculating the 30% annualized rate of return is the initial

capital contribution, which, as defined by the Partnership

Agreement, relates to the actual contribution of a partner to the

partnership. As the district court found, the summary judgment

evidence showed that initial capital contributions were all made by

May 26, 1993, the date the Partnership Agreement was executed.

Contrary to appellant’s brief, First Overton submitted only

speculation to support its position that initial capital

contributions were not made by that date. This is the only date

that makes sense of the entirety of the reimbursement provision.

For all these reasons, the judgment of the district court

is AFFIRMED.