### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 f or 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 d ismissal on

s u m m a r y judgment of its claims against d efendants of breach of contract, negligent misrepresentation, promissory estoppel, and fraud. We affirm. I. Vinewood filed t his s uit against the defendants to e nforce an alleged oral contract to invest $100 milli o n i n r e a l estate projects promoted b y Vinewood. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 8, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-11103 Document: 00512400345 Page: 1 Date Filed: 10/08/2013No. 12-11103

Defendant Dar Al-Maal Al-Islami Trust (DMI) i s an I slamic f inancial institution based i n G e n e v a , 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 i ts CEO. DMI was represented during the relevant periods by attorney James McGuire. The principals of Vinewood, James Conrad, Laird F airchild and Wendel Pardue, were previously employed by Overland C apital Group, Inc. (Overland). Overland had a business relationship with DMI, w hereby Overland located real estate i nvestment opportunities for investment by D MI affiliat e s. After DMI purchased property, O verland managed it for DMI’s affiliates. Before working at Overland, Conrad had previously been associated with Fairfield Residential LLC (Fairfield). DMI had invested i n several Fairfield projects. Vi n ewood’s counsel is Geoffrey Harper. I n M a r c h 2004, Overland terminated the employment of Conrad, F a i r c h i l d and Par d u e . According to C onrad, they were terminated for r a ising questions about w hether Overland w as complying with federal t ax law. In April 2004, Fairchild and Pardue filed a w rongful termination action against Overland and

a D MI affiliate in Texas State Court (2004 Texas Action )

. O n June 19, 2004, Conrad traveled to Geneva, Switzerland for a meeting w i t h R awashdeh and Abdulla-Janahi to settle the 2004 Texas Action. 1 Plaintiff relies h eavily on oral promises defendants made at that meeting to support their claim. The parties agree t h a t a preliminary agreement was r e ached 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 l iability;

1 Accord ing to Vinew ood , DM I d es ired to s e t tle the dis p ute betw een O verland and Conrad , F airchild and Pard ue becaus e thei r f irings lef

t no one at O verland w ho k new the
s tatus of D M I ’s inves tm ents or w ho had the exp erience to m anage the exis ting re al es tate p ortf olio. 2 Case: 12-11103 Document: 00512400345 Page: 2 Date Filed: 10/08/2013No. 12-11103

and (ii) a n agreement that an affiliate of DMI would l oan a new company (which

was l a ter f

ormed as Vinewood) $2.5 m i llion in s tart-up capital. According to C o n r a d , R a w a shdeh and Abdulla-Janahi a lso agreed that DMI would s t a r t a n e w business relationship with Vinewood i n which D MI committed t o fund $100

m illion in real estate i nvestments in the coming year. U n der the oral agreement, Vinewood’s fees related t o those projects would be the same as those being paid to Overland. If necessary, Vi n e wood w ould take over asset management of new projects and properties then being managed by O verland, also under the same fee arrangement a s t hose earned by Overland. According to the defendants, DMI agreed only to consider future investment projects that Vinewood might present to them. After t he June meeting, the parties and their attorneys began to exchange

c o r r espondence and draft agreements t o document t he agreements reached i n Geneva. The writings consistently included references to t he items agreed to as part of the settlement of the Texas Action – a settlement payment and mutual release s , and a loan to Vinewood. In contrast, t he language in the

c o r r e s p o n d e n c e a n d d r a f t a gr e e m e n t s (both from plaintiff to defendants and fr o m defendants t o plaintiff) used to describe DMI’s obligation to invest i n Vinewood real estate projects w as inconsistent with Conrad’s version of t h e al l e g ed oral agreement perfected in Geneva. On June 25, 2004 (less than on e w e e k 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) o f how to resolve a l l o f the issues between our clients.” That “Proposed Business Plan” descri b e s the business arrangement b etween Vinewood and DMI as follows: “DMI and its related entities would have a right o f first refusal on all proposed real estate transactions. Vinewood wou l d r e qu e s t an exclusive right to represent DMI related e n tities on i n v e s t m ents in US real estate.” It a lso contains a

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disclaimer regarding the profit p rojections which references a p otential investor’s decision w hether to invest. Two e arlier vers i o n s o f the “Proposed Business Plan” were c irculated by Pardue t o Harper, Conrad and other parties

on June 24, 2004. There was no m e n t i o n o f a commitment to fund real estate investments in any o f t hese drafts. McGuire responded on August 16, 2004, in

an email, which s tates that DMI will enter an “Agreement to consider (only) all deals brought to i t b y Conrad.” None o f the correspondence or preliminary drafts of agreements the p l a i n tiff sent the d e fendants’ representatives refer, even obliquely, t o a c ommitment by the defendants to invest in a specified amount of real estate projects to b e generated b y the plaintiff. The s ame i s t r u e of the correspondence from defendants’ representatives to plaintiff. The agreements that were signed by bo t h p a r t i es also belie any oral commitment by the d efendants to invest in real estate p rojects g enerated by the plaintiff. The first i nstrument executed b y t h e parties was a m emorandum of understanding relate d t o a future Financing Agreement which was signed on September 3, 2004 (the F inancing M OU). T h e F i nancing MOU confirmed the agreement b y DMI to make the $2.5 million start up loan to Vinewood. 2 It also had provisions about a future business relationship with the plaintiff. But rather than committing DMI to invest in p rojects brought to it by the p laintiff, the instrument s ecured to DMI the first right of ref u s a l o n a l l real estate investments Vinewood presented to i t

. Relatedly, D MI also agreed to consider i n g o o d f

aith all potential transactions Vinewood b rought t o it. Finally, an d completely inconsistent with a comm i t m e nt, the instrument stated that DMI would “have no obligation whatsoever to participate or become involved in such transactions.” R ather “[DMI] (or a relate d c o m p any) shall h ave complete and

2 The Financing M O U w as actually executed on behalf of N exus , a D M Iaf f iliate. All p arties agree that the agreem ent w as on behalf of D MI and this op inion shall treat DM I or the d ef end ants as p arties to that agreem ent. 4 Case: 12-11103 Document: 00512400345 Page: 4 Date Filed: 10/08/2013No. 12-11103

unfettered discretion to a ccept or reject any trans a c t i o n s or opportunities b r o u g h t to it b y Vinewood.” This instrument a lso provided that “any and al l prior agreements, c ontracts 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 fina l settlement a greement w as e xecuted on October 7, 2 004 (the Settlement Agreement)

. T h i s a gr e e ment, l i ke the memoranda of understanding,

was signed several months a f t e r t h e parties met in Geneva, where the oral commitment was allegedly made. T h e c entral purpose of t he Settlement Agreement was to reso l v e the w rongful termination suit against O verland. Paragraph 4 o f the instrument prov i d e s t h at plaintiffs (referring to Conrad, P a r d ue and Fairchild) fully release defendants (including O v e r l a n d , R a w a s h d e h and a D MI affiliate) from all earlier contracts, agreements and p romises. This
express release for claims b ased on earlier promises undermi n es plaintiff’s contention that defendants were committed to invest in specified a mo u n t s o f r eal estate promoted by them. 3 The final financing agreement was entered into on O ctober 1 4 , 2 0 0 4 , between Vinewood and August Investment Fund I Ltd (another DMI a f filiate) in a document entitled S p ecial Purpose Mudaraba Agreement. 4 The purpose of this agreement was to reduce t o writing the defendants’ agreement to provide $2.5 m illion in start up money for plaintiff’s n ew b usiness, Vi n e w o o d

. No reference is made to any commitment by defendants to invest in properties brought t o i t b y plaintiff. This agreement also contains a m erger clause that

3 T his ins trume nt als o include s a me rg e r claus e w hich pro v ide s in Parag r a p h 6 that the S e t tl e m e n t A gre e me nt “s upe rce de s a ll pre v io us o ral and w ritte n ne g o tiatio ns , ag re e me nt, co mmit m e n t s , and w riting s in co nne ctio n the re w ith.”

4 A M ud araba Agreem ent is an Is lam ic f inanc i n g t r ans action w hereby one p arty entrus ts f

und s to another party f or us e in bus ines s . It f unctions lik e a line of cred it. 5 Case: 12-11103 Document: 00512400345 Page: 5 Date Filed: 10/08/2013No. 12-11103

states t hat the written agreement c ontains the e ntire agreement between the parties and supercedes all prior agreements and understandings. Vinewood argues that in reliance on promises from d e f e n dants, it established itself as a corporate entity, set up the b usiness and began g athering information o n p rojec t s f o r DMI. Defendants and Vinewood met again in London in December 2 0 04. Representatives from F airfield also attended the m eeting. Vinewood states that at this meeting D M I look e d a t a l i s t o f projects they presented and agreed to f inance them. Defendants state that the purpose of the meeting was to discuss Vinewood t aking over m anagement of already existing Overland projects that had been developed by Fairfield. Conrad wrote to Abdulla-Janahi after t h e London meeting a nd attached a list of proj ects Vinewood claimed defendants approved. However, Conrad states i n the letter “If for some reason Shamil B a n k/ D M I d o es not want to p rovide all of the requested funding it will n ot be a p r o b l e m. I n fact, all Fairfield needs at this stage is just an indication o f f u nding and not a commitment.” Conrad requested from Shami l B a n k/ DMI its f u nding amounts f

or Fairfield’s 2 005 equity needs and again stated, “Each investment subject to b eing a nalyzed a nd approved on its own merits.” Vinewood alleges that after the December meeting DMI took their property proposals d irectly to Overland, c utting them out, whi l e a t the same time repeatedly assuring them t hat funding would b e provided for the agreed
upon projects. Plaintiff argues that when it discovered w hat was happening, it filed this suit claiming breach of contract, n egligen t m i srepresentation, fraud and promissory estoppel. T he defendants filed a motion for summary judgment on all claims, which the district court granted. The district court concluded t hat Vinewood’ s sole source of proof of the alleged oral contract to fund $100 mi l l i on in real estate projects was Conrad’s testimony, by deposition a nd a declaration filed with Vinewood’s opposition t o

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the motion for summary judgment. T h e court found that Conrad’s declaration

w a s i n c onsistent w i th h is prior deposition testimony and therefore of questionable value. 5 The distric t court also relied on the absence of

c o n t e mporaneous documentary evi d e n c e o f t h e $ 1 0 0 m i l l i o n c o m m i t m e n t a n d t h e f a c t that the documentary evidence a ctually b elied t he existence of such an agreement. Vinewood’s other claims, which rest on t h e same allegations as t he breach of contract claims, were similarly dismi s s e d f o r lack of an issue of fact. This appeal followed. II. This court reviews t he grant of summary j udgment de novo. Threadgill

v. Prudential Sec. Group, I n c . , 145 F.3d 286, 292 (5th C ir. 1 998). The motion should only be granted if there is n o genuine issue as to any material f act. Fed. R

. C iv. P. 56(c). Evidence must be viewed in the light most favorable t o t h e nonmoving p a rty. Envtl. Conservation Org. v. City of Dallas , 529 F.3d 519, 524 (5th Cir. 2008). How e ver, conclusory a llegations are insufficient to defeat a motion for summary j udgment without probative evidence to s upport the claim. Anderson v . Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986). S i m i l a r l y , a party’s uncorroborated self-serving testimony cannot prevent su m mary judgment,

5 Som e of the incons is tencies involve w hether Conrad knew the p urp os e of the G eneva m eeting bef

ore he attend ed and w hether s ettlem ent w as dis cus s ed

. Conrad ’s d eclaration als o ad d ed inf

orm ation that was not d is clos ed in h i s dep os ition, i. e. , that d uring the G eneva m eeting Janahi and Raw as hd eh ap ologized for p revious events and as k ed if the p arties could
m ove beyond that incid ent and that a k ey is s ue f or Vinew ood at the Lond on m eeting w as the need f or the deals to be tax com p liant. Regard ing the oral contract, Con r a d ’ s d eclaration
s tates that D M I agreed that it w oul d fund $100 mi l l i on into Fairf ield res id ential inves tm ents

. In his dep os ition, Conrad tes tif ied that D M I agreed that it w ould f und no l e s s t h a n $100
m i ll i on of the F airf

ield2005 inves tm ents

. Fairf ield ’s d eclaration s tated that D M I agreed to f und up to $100 m i l l ion in bus ines s . The d is trict court conclud e d t h a t “While thes e d is crep ancies are s ubtle, w hen com bined w ith the above- d es cribed contrad ictions in Conrad ’s tes tim ony, they s o convolute Vinew ood ’s p os ition that they p reclud e the creation of a d is pute of f act concerning this es s ential term of the alleged oral contract. ” 7 Case: 12-11103 Document: 00512400345 Page: 7 Date Filed: 10/08/2013No. 12-11103

particularly if t he overwhelming documentary eviden c e supports t he opposite scenario. Vais Arms, Inc. v. Vais , 383 F.3d 287, 294 (5th Cir. 2004). T h e district court properly applied these rules w hen assessing t h e summary judgment evidence in this case. The o n l y e v idence offered by Vinewood in support o f 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 p roduced by principals of Vinewood, that proposes a business relationship with d e f e n d a n ts with no mention of the alleged oral agreement. In fact, correspondence sent by the plaintiff immediately after the Geneva meeting d escribes an agreement giving DMI full d i scretion to accept or reject any particular project generated b y p laintiff. The Financing MOU echoes those terms describing DMI’s right of first refusal on a ll real estate i nvestments Vinewood presents, s pecifically stating t hat DMI would “have no oblig a t i on whatsoever to participate o r become involved in such transactions.” Neither the Settlement Agreement nor the Special Purpose Mudaraba Agreement contain
any provision obligating DMI to participate in any r eal estate i nvestments offered by Vinewood. In addition, even if we assume that an oral agreement was f o r m e d in Geneva, t he release language in the Settlement Agreement and t he merger clauses in t he Settlement A gr e ement 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 s u p p o rts C onrad’s testimony that D MI c ommitted to fund $ 100 million in Vinewood-generated real esta t e investments. As the district court concluded, Conrad’s self-serving testimony is belied by the parties’ contem p o raneous written communications and written

a g r e ements and is therefore insufficient to create an issue of fact. I d

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Accordingly, we agree that p laintiff’s summary judgment evidence fai l e d 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 n e g l i g e nt misrepresentation, promissory estoppel, a nd fraud against the defendants. First, the district c ourt found t hat C o n r a d ’ s testimony c o ncerning the representations made by Abdulla-Janahi a nd Rawashdeh was inconsistent with the weight of the documentary evidence and thus d i d not create an issue of fact. Based on the same analysis above in relation to the contract claim, we agree. In ad d ition, to the e xtent the negligent m isrepresentation claim was based

on assurances o f the defendants’ willingness to provide future fun d i n g, those

r e p r e sentations are promises to perform future acts which are n o t actionable statements of existing fact. Clardy Mfg. Co. v. Marine Midland Bus. Loans , 88 F.3d 347, 357 (5th Cir. 1996) (T h e “ f alse information” element contemplates a misstatement of an existing fact.) IV. B a s e d on the foregoing analysis, we agree with the district court t h a t Vinewood’s claims fail as a matter of law and affirm the grant of s u m m ary judgment and dismissal of all claims. AFFIRMED.

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