IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-11103

VINEWOOD CAPITAL, LLC, 

Plaintiff- Appellant,

v.

DAR AL-MAAL AL-ISLAMI TRUST; ZIAD RAWASHDEH; KHALID

ABDULLA-JANAHI, 

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:06-cv-00316

Before DAVIS, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Plaintiff Vinewood Capital, LLC, (Vinewood), appeals from a dismissal on

summary judgment of its claims against defendants of breach of contract,

negligent misrepresentation, promissory estoppel, and fraud. We affirm. 

I. 

Vinewood filed this suit against the defendants to enforce an alleged oral

contract to invest $100 million in real estate projects promoted by Vinewood. 

United States Court of Appeals

Fifth Circuit

F I L E D

October 8, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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Defendant Dar Al-Maal Al-Islami Trust (DMI) is an Islamic financial institution

based in Geneva, Switzerland that operates banks and investment vehicles

conforming with Islamic law. Defendant Ziad Rawashdeh was DMI’s Chief

Operating Officer and defendant Khalid Abdullah-Janahi was its CEO. DMI

was represented during the relevant periods by attorney James McGuire.

The principals of Vinewood, James Conrad, Laird Fairchild and Wendel

Pardue, were previously employed by Overland Capital Group, Inc. (Overland). 

Overland had a business relationship with DMI, whereby Overland located real

estate investment opportunities for investment by DMI affiliates. After DMI

purchased property, Overland managed it for DMI’s affiliates. Before working

at Overland, Conrad had previously been associated with Fairfield Residential

LLC (Fairfield). DMI had invested in several Fairfield projects. Vinewood’s

counsel is Geoffrey Harper. 

In March 2004, Overland terminated the employment of Conrad, Fairchild

and Pardue. According to Conrad, they were terminated for raising questions

about whether Overland was complying with federal tax law. In April 2004,

Fairchild and Pardue filed a wrongful termination action against Overland and

a DMI affiliate in Texas State Court (2004 Texas Action). On June 19, 2004,

Conrad traveled to Geneva, Switzerland for a meeting with Rawashdeh and

Abdulla-Janahi to settle the 2004 Texas Action.1 Plaintiff relies heavily on oral 

promises defendants made at that meeting to support their claim. 

The parties agree that a preliminary agreement was reached in Geneva

to settle the 2004 Texas Action. The settlement would include (i) a settlement

payment to Conrad, Fairchild and Pardue and mutual releases from liability;

1 According to Vinewood, DMI desired to settle the dispute between Overland and

Conrad, Fairchild and Pardue because their firings left no one at Overland who knew the

status of DMI’s investments or who had the experience to manage the existing real estate

portfolio.

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and (ii) an agreement that an affiliate of DMI would loan a new company (which

was later formed as Vinewood) $2.5 million in start-up capital. According to

Conrad, Rawashdeh and Abdulla-Janahi also agreed that DMI would start a new

business relationship with Vinewood in which DMI committed to fund $100

million in real estate investments in the coming year. Under the oral

agreement, Vinewood’s fees related to those projects would be the same as those

being paid to Overland. If necessary, Vinewood would take over asset

management of new projects and properties then being managed by Overland,

also under the same fee arrangement as those earned by Overland. According

to the defendants, DMI agreed only to consider future investment projects that

Vinewood might present to them. 

After the June meeting, the parties and their attorneys began to exchange

correspondence and draft agreements to document the agreements reached in

Geneva. The writings consistently included references to the items agreed to as

part of the settlement of the Texas Action – a settlement payment and mutual

releases, and a loan to Vinewood. In contrast, the language in the

correspondence and draft agreements (both from plaintiff to defendants and from

defendants to plaintiff) used to describe DMI’s obligation to invest in Vinewood

real estate projects was inconsistent with Conrad’s version of the alleged oral

agreement perfected in Geneva. 

On June 25, 2004 (less than one week after the Geneva meeting),

Vinewood’s counsel, Harper, sent a letter to McGuire, counsel for DMI, following

up on the meeting with a “proposal (with accompanying support) of how to

resolve all of the issues between our clients.” That “Proposed Business Plan”

describes the business arrangement between Vinewood and DMI as follows:

“DMI and its related entities would have a right of first refusal on all proposed

real estate transactions. Vinewood would request an exclusive right to represent

DMI related entities on investments in US real estate.” It also contains a

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disclaimer regarding the profit projections which references a potential

investor’s decision whether to invest. Two earlier versions of the “Proposed

Business Plan” were circulated by Pardue to Harper, Conrad and other parties

on June 24, 2004. There was no mention of a commitment to fund real estate

investments in any of these drafts. McGuire responded on August 16, 2004, in

an email, which states that DMI will enter an “Agreement to consider (only) all

deals brought to it by Conrad.” None of the correspondence or preliminary drafts

of agreements the plaintiff sent the defendants’ representatives refer, even

obliquely, to a commitment by the defendants to invest in a specified amount of

real estate projects to be generated by the plaintiff. The same is true of the

correspondence from defendants’ representatives to plaintiff.

The agreements that were signed by both parties also belie any oral

commitment by the defendants to invest in real estate projects generated by the

plaintiff. The first instrument executed by the parties was a memorandum of

understanding related to a future Financing Agreement which was signed on

September 3, 2004 (the Financing MOU). The Financing MOU confirmed the

agreement by DMI to make the $2.5 million start up loan to Vinewood.2It also

had provisions about a future business relationship with the plaintiff. But

rather than committing DMI to invest in projects brought to it by the plaintiff,

the instrument secured to DMI the first right of refusal on all real estate

investments Vinewood presented to it. Relatedly, DMI also agreed to consider

in good faith all potential transactions Vinewood brought to it. Finally, and

completely inconsistent with a commitment, the instrument stated that DMI

would “have no obligation whatsoever to participate or become involved in such

transactions.” Rather “[DMI] (or a related company) shall have complete and

2 The Financing MOU was actually executed on behalf of Nexus, a DMI affiliate. All

parties agree that the agreement was on behalf of DMI and this opinion shall treat DMI or the

defendants as parties to that agreement.

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unfettered discretion to accept or reject any transactions or opportunities

brought to it by Vinewood.” This instrument also provided that “any and all

prior agreements, contracts and understandings between and among the parties

to the Financing Agreement shall be fully and completely terminated and of no

effect.” The parties also executed a memorandum of understanding related to

the settlement agreement between the parties (the Settlement MOU). 

The final settlement agreement was executed on October 7, 2004 (the

Settlement Agreement). This agreement, like the memoranda of understanding,

was signed several months after the parties met in Geneva, where the oral

commitment was allegedly made. The central purpose of the Settlement

Agreement was to resolve the wrongful termination suit against Overland. 

Paragraph 4 of the instrument provides that plaintiffs (referring to Conrad,

Pardue and Fairchild) fully release defendants (including Overland, Rawashdeh

and a DMI affiliate) from all earlier contracts, agreements and promises. This

express release for claims based on earlier promises undermines plaintiff’s

contention that defendants were committed to invest in specified amounts of real

estate promoted by them.3

The final financing agreement was entered into on October 14, 2004,

between Vinewood and August Investment Fund I Ltd (another DMI affiliate)

in a document entitled Special Purpose Mudaraba Agreement.4 The purpose of

this agreement was to reduce to writing the defendants’ agreement to provide

$2.5 million in start up money for plaintiff’s new business, Vinewood. No

reference is made to any commitment by defendants to invest in properties

brought to it by plaintiff. This agreement also contains a merger clause that

3 This instrument also includes a merger clause which provides in Paragraph 6 that the

SettlementAgreement “supercedes all previous oral and written negotiations, agreement, commitments,

and writings in connection therewith.”

4 A Mudaraba Agreement is an Islamic financing transaction whereby one party

entrusts funds to another party for use in business. It functions like a line of credit.

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states that the written agreement contains the entire agreement between the

parties and supercedes all prior agreements and understandings. 

Vinewood argues that in reliance on promises from defendants, it

established itself as a corporate entity, set up the business and began gathering

information on projects for DMI. Defendants and Vinewood met again in London

in December 2004. Representatives from Fairfield also attended the meeting. 

Vinewood states that at this meeting DMI looked at a list of projects they

presented and agreed to finance them. Defendants state that the purpose of the

meeting was to discuss Vinewood taking over management of already existing

Overland projects that had been developed by Fairfield. Conrad wrote to

Abdulla-Janahi after the London meeting and attached a list of projects

Vinewood claimed defendants approved. However, Conrad states in the letter

“If for some reason Shamil Bank/DMI does not want to provide all of the

requested funding it will not be a problem. In fact, all Fairfield needs at this

stage is just an indication of funding and not a commitment.” Conrad requested

from Shamil Bank/DMI its funding amounts for Fairfield’s 2005 equity needs

and again stated, “Each investment subject to being analyzed and approved on

its own merits.”

Vinewood alleges that after the December meeting DMI took their

property proposals directly to Overland, cutting them out, while at the same

time repeatedly assuring them that funding would be provided for the agreed

upon projects. Plaintiff argues that when it discovered what was happening, it

filed this suit claiming breach of contract, negligent misrepresentation, fraud

and promissory estoppel. The defendants filed a motion for summary judgment

on all claims, which the district court granted. 

The district court concluded that Vinewood’s sole source of proof of the

alleged oral contract to fund $100 million in real estate projects was Conrad’s

testimony, by deposition and a declaration filed with Vinewood’s opposition to

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the motion for summary judgment. The court found that Conrad’s declaration

was inconsistent with his prior deposition testimony and therefore of

questionable value.5 The district court also relied on the absence of

contemporaneous documentary evidence ofthe $100 million commitment and the

fact that the documentary evidence actually belied the existence of such an

agreement. 

Vinewood’s other claims, which rest on the same allegations as the breach

of contract claims, were similarly dismissed for lack of an issue of fact. This

appeal followed. 

II. 

This court reviews the grant of summary judgment de novo. Threadgill

v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998). The motion

should only be granted if there is no genuine issue as to any material fact. Fed.

R. Civ. P. 56(c). Evidence must be viewed in the light most favorable to the

nonmoving party. Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 524

(5th Cir. 2008). However, conclusory allegations are insufficient to defeat a

motion for summary judgment without probative evidence to support the claim.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Similarly, a party’s

uncorroborated self-serving testimony cannot prevent summary judgment,

5 Some of the inconsistencies involve whether Conrad knew the purpose of the Geneva

meeting before he attended and whether settlement was discussed. Conrad’s declaration also

added information that was not disclosed in his deposition, i.e., that during the Geneva

meeting Janahi and Rawashdeh apologized for previous events and asked if the parties could

move beyond that incident and that a key issue for Vinewood at the London meeting was the

need for the deals to be tax compliant. Regarding the oral contract, Conrad’s declaration

states that DMI agreed that it would fund $100 million into Fairfield residential investments.

In his deposition, Conrad testified that DMI agreed that it would fund no less than $100

million of the Fairfield 2005 investments. Fairfield’s declaration stated that DMI agreed to

fund up to $100 million in business. The district court concluded that “While these

discrepancies are subtle, when combined with the above-described contradictions in Conrad’s

testimony, they so convolute Vinewood’s position that they preclude the creation of a dispute

of fact concerning this essential term of the alleged oral contract.” 

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particularly if the overwhelming documentary evidence supports the opposite

scenario. Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir. 2004).

The district court properly applied these rules when assessing the

summary judgment evidence in this case. The only evidence offered by

Vinewood in support of the alleged oral contract between Vinewood and DMI for

DMI to invest $100 million in real estate is Conrad’s deposition testimony and

affidavit. In contrast, as outlined above, the record is replete with documentary

evidence, much of it produced by principals of Vinewood, that proposes a

business relationship with defendants with no mention of the alleged oral

agreement. In fact, correspondence sent by the plaintiff immediately after the

Geneva meeting describes an agreement giving DMI full discretion to accept or

reject any particular project generated by plaintiff. The Financing MOU echoes

those terms describing DMI’s right of first refusal on all real estate investments

Vinewood presents, specifically stating that DMI would “have no obligation

whatsoever to participate or become involved in such transactions.” Neither the

Settlement Agreement nor the Special Purpose Mudaraba Agreement contain

any provision obligating DMI to participate in any real estate investments

offered by Vinewood. In addition, even if we assume that an oral agreement was

formed in Geneva, the release language in the Settlement Agreement and the

merger clauses in the Settlement Agreement and the Mudaraba Agreement

would negate that agreement. Months later, after the parties met in London in

December 2004, Conrad continued to describe DMI’s obligation to fund proposed

projects as optional. In short, no document supports Conrad’s testimony that

DMI committed to fund $100 million in Vinewood-generated real estate

investments. 

As the district court concluded, Conrad’s self-serving testimony is belied

by the parties’ contemporaneous written communications and written

agreements and is therefore insufficient to create an issue of fact. Id.

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Accordingly, we agree that plaintiff’s summary judgment evidence failed to

create a triable issue of fact tending to show that defendants committed to fund

real estate projects generated by plaintiff. 

III. 

The district court also dismissed the Vinewood’s claims of negligent

misrepresentation, promissory estoppel, and fraud against the defendants. 

First, the district court found that Conrad’s testimony concerning the

representations made by Abdulla-Janahi and Rawashdeh was inconsistent with

the weight of the documentary evidence and thus did not create an issue of fact. 

Based on the same analysis above in relation to the contract claim, we agree. 

In addition, to the extent the negligent misrepresentation claim was based

on assurances of the defendants’ willingness to provide future funding, those

representations are promises to perform future acts which are not actionable

statements of existing fact. Clardy Mfg. Co. v. Marine Midland Bus. Loans, 88

F.3d 347, 357 (5th Cir. 1996) (The “false information” element contemplates a

misstatement of an existing fact.) 

IV. 

Based on the foregoing analysis, we agree with the district court that

Vinewood’s claims fail as a matter of law and affirm the grant of summary

judgment and dismissal of all claims. AFFIRMED. 

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