*

Honorable Myron H. Bright, Senior U.S. Circuit Judge for

the Eighth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-4520.

TRUMPET VINE INVESTMENTS, N.V., Nacional Financiera, S.N.C.,

Plaintiffs-Counter Defendants-Appellees,

Pollypeck International P.L.C., P.P.I. (Holdings) B.V., P.P.I.

Delmonte Fresh Produce B.V., Counter-Defendants,

Jorge Aguilar, Enrique Portilla, Alejandro Portilla, William Van

Diepen and William Levin, Counter-Defendants-Appellees,

v.

UNION CAPITAL PARTNERS I, INC., Defendant-CounterclaimantAppellant.

Aug. 28, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 92-2032-CV-WDF), Wilkie D. Ferguson, Jr.

Judge.

Before COX and BARKETT, Circuit Judges, and BRIGHT*

, Senior Circuit

Judge.

BRIGHT, Senior Circuit Judge.

This case arises from the 1992 sale of P.P.I. Del Monte Fresh

Produce B.V. (Del Monte) to Trumpet Vine Investments, N.V. (Trumpet

Vine). Trumpet Vine is a Netherlands Antilles corporation

organized by Mexican investors for the purpose of acquiring Del

Monte. Trumpet Vine's bid was supported by financing from Nacional

Financiera, S.N.C. (NAFINSA), a state-owned economic development

bank in Mexico. After the takeover bid was announced, Trumpet Vine

filed a declaratory judgment action against Union Capital Partners

I, Inc. (UCP) seeking adjudication that UCP was not entitled to

monetary damages or injunctive relief arising out of the Del Monte
acquisition. UCP filed counterclaims alleging breach of fiduciary

duty, fraud, conspiracy to commit fraud and breach of an implied

contract. The district court determined that New York law governed

each issue and, applying that law, granted summary judgment in

favor of Trumpet Vine, dismissing all the counterclaims. This

judgment disposed of the litigation. We affirm.

I. BACKGROUND

UCP, a Delaware corporation with its principal place of

business in Florida, is a private investment corporation formed for

the purpose of acquiring or investing in companies. Gregory Aziz

founded and served as president of UCP. In late 1990 and early

1991, UCP began discussions to organize a deal to acquire Del Monte

from its parent company, P.P.I. Holdings B.V. (PPI). PPI, in turn,

is wholly owned by Polly Peck International P.L.C. (Polly Peck).

Polly Peck entered bankruptcy in England in 1990. UCP

characterized its role as that of a "deal sponsor," an individual

who assembles a group of investors to purchase a company and takes

all steps necessary to facilitate the transaction. UCP anticipated

a role in the ownership and management of the newly acquired

company as compensation for its efforts.

In August 1991, UCP, on behalf of its investor group,

unsuccessfully submitted an unsolicited bid for Del Monte. UCP

then attempted to aggregate another group of investors to acquire

Del Monte. UCP's efforts intensified when the bankruptcy

administrator announced in June of 1992 that Del Monte would be

sold at a private auction conducted by Goldman Sachs.

UCP claims that in July of 1992, representatives of Trumpet
 1

Trumpet Vine and NAFINSA contend that the July 8th meeting

was an introductory meeting to merely explore the possibility of

joint participation with UCP. They claim that NAFINSA always

remained an independent investor throughout the process, and

worked together with UCP so that both could get into the due

diligence process. NAFINSA argues that they never negotiated,

let alone agreed to, a joint venture, exclusive bidding or

compensation arrangement with UCP. 

 2A "due diligence" presentation gives a prospective buyer

up-to-the-moment financial information and the opportunity to

question management and to examine the operations of the company

on site. 

Vine and NAFINSA approached its president, Aziz, regarding their

possible participation as equity partners in UCP's bid to acquire

Del Monte. On July 8, 1992, Aziz met with agents of Trumpet Vine

and NAFINSA at the New York offices of Kidder Peabody, which was

serving as Aziz' financial advisor. According to Aziz, the NAFINSA

representatives informed him that NAFINSA had attempted to

independently enter the bidding process, but that Goldman Sachs had

refused to provide them with financial information or allow them to

enter the bidding.

According to UCP, the NAFINSA agents indicated that they

wished to "join forces" with UCP in submitting a bid for Del

Monte.1

 The agents requested that UCP share its confidential

information regarding Del Monte and that they be invited to attend

a due diligence presentation.2 Aziz informed Polly Peck's

bankruptcy administrator of the discussions with NAFINSA and

subsequently scheduled a due diligence meeting at Del Monte's

headquarters in Coral Gables, Florida on July 20, 1992. On July

17, UCP, NAFINSA and Del Monte entered into a nondisclosure

agreement encompassing the disclosure to NAFINSA of confidential

and proprietary information about Del Monte. In the agreement
NAFINSA promised to hold all "proprietary information" in

confidence and to only disclose it to others "who need to know such

Propriety Information for providing services to UCP." The

agreement stated "UCP and [NAFINSA] intend to enter into

discussions slating to possible acquisitions, equity investments,

partnerships or joint venture operations involving [Del Monte]."

However, the agreement also provided "[NAFINSA] makes no express or

implied representation or warranty concerning the future

acquisition, partnership or joint venture involving [Del Monte]."

The agreement expressly provided for application of New York law.

After the due diligence meeting, UCP's potential financial

backers, First Chicago and Kidder Peabody, decided to discontinue

their involvement in the project. NAFINSA and the other Mexican

investors then announced that they would go their own way and

attempt an independent bid. UCP was unable to move forward and

submit a bid by the bidding deadline. Trumpet Vine subsequently

acquired Del Monte for approximately $500,000,000. NAFINSA

supported the bid by Trumpet Vine and became an equity investor in

Trumpet Vine for the Del Monte acquisition. UCP was not included

in the acquisition of Del Monte and received no remuneration as a

result of the transaction.

Trumpet Vine and NAFINSA initiated a declaratory judgment

action stating they had a bona fide dispute with UCP and seeking an

adjudication that UCP was not entitled to monetary damages or

injunctive relief arising out of the acquisition of Del Monte. UCP

asserted counterclaims of breach of implied contract, breach of

fiduciary duty, fraud and conspiracy to commit fraud. Trumpet Vine
 3

The Hon. Barry L. Garber, United States Magistrate Judge

for the Southern District of Florida. 

moved for summary judgment and dismissal of the counterclaims.

The matter was referred to a magistrate judge3 who, on August

5, 1993, submitted a report recommending that New York law be

applied to all the claims. The magistrate judge recommended

granting summary judgment on the breach of fiduciary duty claim

because of a lack of any showing that "this relationship was

anything other than a conventional business or arm's length

transaction." The report recommended granting summary judgment on

the implied contract claims, determining the claims were barred by

the statute of frauds. The magistrate judge, however, recommended

denying the motion to dismiss the fraud claims because the

pleadings were sufficient and alleged justifiable reliance. The

district court adopted the report and recommendation in its

entirety.

Trumpet Vine later moved for summary judgment on the remaining

two fraud claims. In a report submitted on November 21, 1994, the

magistrate judge recommended granting summary judgment against UCP

on the fraud claims. The magistrate judge concluded that under New

York law, UCP must show a specific injury other than loss of

compensation. The magistrate judge determined that UCP had not

established that but for NAFINSA's successful bid, UCP would have

assembled a group of investors and acquired the company.

Accordingly, UCP could not establish injury. The district court

adopted the report and recommendation in its entirety.

II. DISCUSSION
 As a threshold issue, this court must decide whether the

district court correctly applied New York law to UCP's substantive

claims. We review conflict of laws issues de novo. Fioretti v.

Massachusetts Gen. Life Ins. Co., 53 F.3d 1228, 1234 (11th

Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 708, 133 L.Ed.2d

663 (1996). In determining which law applies, a federal district

court sitting in diversity must apply the choice of law rules of

the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.

487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). Under

Florida law, a court makes a separate choice of law determination

with respect to each particular issue under consideration. See

Department of Corrections v. McGhee, 653 So.2d 1091, 1092-93

(Fla.Dist.Ct.App.1995), aff'd, 666 So.2d 140 (Fla.1996); Colhoun

v. Greyhound Lines, Inc., 265 So.2d 18, 21 (Fla.1972).

 Once we have reviewed the determination of which state's law

applies, we turn our attention to the district court's decision to

grant summary judgment in favor of Trumpet Vine.

Under Rule 56(c) of the Federal Rules of Civil Procedure, a

party is entitled to summary judgment "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." On

appeal, a district court's grant of summary judgment is

entitled to de novo review, and "[w]e resolve all reasonable

doubts about the facts in favor of the non-movant."

Browning v. Peyton, 918 F.2d 1516, 1519-20 (11th Cir.1990) (quoting

Tackitt v. Prudential Ins. Co. of Am., 758 F.2d 1572, 1574 (11th

Cir.1985)).

A. Breach of Fiduciary Duty

UCP argues that Trumpet Vine established a fiduciary
 4

"The law of the place where the crime or wrong took place." 

Black's Law Dictionary 911 (6th ed. 1990). 

 5Restatement (Second) of Conflict of Laws § 6 provides:

(1) A court, subject to constitutional restrictions,

will follow a statutory directive of its own state on

choice of law.

(2) When there is no such directive, the factors

relevant to the choice of the applicable rule of law

include

(a) the needs of the interstate and international

systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested

states and the relative interests of those states

in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular

relationship with UCP through their mutual participation in

pursuing the acquisition of Del Monte and the execution of a

nondisclosure agreement. UCP claims that Trumpet Vine breached

this fiduciary duty by acquiring Del Monte without any form of

compensation to UCP.

1. Choice of Law

 At least as to tort claims, the Florida Supreme Court has

abandoned the traditional lex loci delicti4

 rule in favor of the

"most significant relationship" test set forth in the Restatement

(Second) of Conflict of Laws § 145. Bishop v. Florida Specialty

Paint Co., 389 So.2d 999, 1001 (Fla.1980). Section 145 provides:

(1) The rights and liabilities of the parties with respect to

an issue in tort are determined by the local law of the state

which, with respect to that issue, has the most significant

relationship to the occurrence and the parties under the

principles stated in § 6.5
field of law,

(f) certainty, predictability and uniformity of

result, and

(g) ease in the determination and application of

the law to be applied. 

(2) Contacts to be taken into account in applying the

principles of § 6 to determine the law applicable to an issue

include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury

occurred,

(c) the domicil, residence, nationality, place of

incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the

parties is centered.

These contacts are to be evaluated according to their relative

importance with respect to the particular issue.

 The district court determined that the conduct giving rise to

UCP's injury, the alleged betrayal of UCP's confidences and the

acquisition of Del Monte without any compensation to UCP, occurred

primarily in New York. New York is where the parties' relationship

was created and is the state whose law the parties chose to govern

the nondisclosure agreement, the only formal agreement as to the

relationship between the parties. Based upon these factors, the

district court correctly determined that New York had the most

significant relationship to the breach of fiduciary relationship

claim.

UCP argues that Florida was the situs of UCP's injury and thus

has the most significant relationship to this cause of action. UCP

asserts that under Florida law, the place of injury is

presumptively controlling. In support of this position, UCP relies
 6

UCP argues that the district court failed to give

sufficient weight to the fact that UCP's primary place of

business is in Florida. We disagree. Application of the

"domicile" factor implicates Florida, New York, Delaware, Mexico

and the Netherlands Antilles. We also note that although UCP's

president, Aziz, was himself located in Florida, the company had

no offices or employees in the state. 

primarily upon cases involving personal injury or products

liability suits. See State Farm Mut. Auto. Ins. Co. v. Olsen, 406

So.2d 1109, 1111 (Fla.1981). The commentary to Restatement § 145

provides,

the place of injury is of particular importance in the case of

personal injuries and of injuries to tangible things.... On

the other hand, the place of injury is less significant in the

case of fraudulent misrepresentations ... and of such unfair

competition as consists of false advertising and the

misappropriation of trade values.

Restatement (Second) of Conflict of Laws § 145 comment f; see also

Default Proof Credit Card Sys., Inc. v. State Street Bank & Trust

Co., 753 F.Supp. 1566, 1570-71 (S.D.Fla.1990). Because breach of

fiduciary duty is more akin to a claim of fraud rather than a

personal injury claim, we determine that the district court

correctly balanced the competing factors in accordance with Florida

law.6

2. Application of New York Law

 Under New York law, a fiduciary duty exists when a person is

under a duty to act or render advice for another's benefit.

Flickinger v. Harold C. Brown & Co., 947 F.2d 595, 599 (2d

Cir.1991) (citing Mandelblatt v. Devon Stores, Inc., 132 A.D.2d

162, 521 N.Y.S.2d 672, 676 (1987)); Litton Indus., Inc. v. Lehman

Bros. Kuhn Loeb Inc., 767 F.Supp. 1220, 1231 (S.D.N.Y.1991), rev'd

on other grounds, 967 F.2d 742 (2d Cir.1992). The existence of a
fiduciary relationship is a question of fact. Accordingly, in

order to survive a motion for summary judgment, UCP must present

sufficient evidence to support a finding that a fiduciary

relationship existed between UCP and Trumpet Vine. The district

court determined that UCP made no showing that the relationship was

anything other than a conventional business or arm's length

transaction. We agree.

 UCP argues that the record contains sufficient evidence to

create a material issue of fact as to the existence of a fiduciary

relationship. UCP asserts that it reposed trust and confidence in

Trumpet Vine when it disclosed its proprietary information and

arranged for Trumpet Vine's entry into the due diligence process.

New York law provides, however, that " "a conventional business

relationship, without more, does not become a fiduciary

relationship by mere allegation.' " Compania Sud-Americana de

Vapores, S.A. v. IBJ Schroder Bank & Trust Co., 785 F.Supp. 411,

426 (S.D.N.Y.1992) (quoting Oursler v. Women's Interart Center,

Inc., 170 A.D.2d 407, 566 N.Y.S.2d 295 (1991)). As a general

matter, merely reposing confidential information in and of itself

will not create a fiduciary relationship under New York law.

Litton Indus., 767 F.Supp. at 1231. The fiduciary relationship

must inspire and provide the context for the disclosures. Id. at

1232; United States v. Reed, 601 F.Supp. 685, 715 (S.D.N.Y.),

rev'd in part on other grounds, 773 F.2d 477 (2d Cir.1985). UCP

has presented no evidence of any special relationship with Trumpet

Vine or NAFINSA which inspired the disclosures. Rather, the record

reveals that the parties were largely unknown to each other only a
short time prior to the due diligence meeting.

 UCP relies heavily upon Browning v. Peyton, 918 F.2d 1516

(11th Cir.1990), where this court reversed summary judgment on a

breach of fiduciary duty claim, determining that material issues of

fact remained. Browning, a real estate investor and developer,

reached an oral agreement to form a joint venture with Peyton for

the purpose of bidding for a large group of real estate holdings.

Browning alleged that Peyton later informed him that he was no

longer interested in the real estate, causing Browning to abandon

the project. Peyton subsequently submitted an independent bid and

purchased the real estate. This court concluded that the record

raised questions of fact as to whether a fiduciary relationship had

been established between Browning and Peyton. Id. at 1522.

Browning, however, is distinguishable from the case before us.

As an initial matter we note that Browning applied the law of

Florida and not New York. Moreover, Browning alleged that the

parties had in fact agreed to form a joint venture thus creating a

special relationship between the parties. UCP has not asserted the

existence of any such agreement between itself and Trumpet Vine or

NAFINSA. UCP has failed to make any showing that its disclosures

and assistance arose from any relationship between the parties

other than a conventional business transaction.

UCP points to the existence of the nondisclosure agreement as

proof of a confidential relationship. A fiduciary duty may arise

out of a contractual relationship which is independent of the

contract itself. Davis v. Dime Sav. Bank of New York, FSB, 158

A.D.2d 50, 557 N.Y.S.2d 775, 776 (1990). However, under the terms
of the nondisclosure agreement, NAFINSA had no obligation to enter

into any kind of transaction with UCP, nor did it promise that it

would not proceed independently in the future. The nondisclosure

agreement expressly negates any obligation on the part of NAFINSA

to participate with UCP in acquiring Del Monte.

B. Fraud Claims

UCP alleges that it reasonably relied upon Trumpet Vine's

representations that Trumpet Vine was interested in joining forces

with UCP. UCP argues that Trumpet Vine never intended to enter

into any partnership or equity investment with UCP but intended

from the outset to utilize information supplied by and through UCP

strictly for its own benefit.

1. Choice of Law

 The Restatement (Second) of Conflict of Laws provides

specific sections for particularized torts. Section 148 provides

the choice of law principles for fraud and misrepresentation, and

the parties agree that Florida courts would apply this section.

The pertinent part of section 148 provides:

(2) When the plaintiff's action in reliance took place in

whole or in part in a state other than that where the false

representations were made, the forum will consider such of the

following contacts, among others, as may be present in the

particular case in determining the state which, with respect

to the particular issue, has the most significant relationship

to the occurrence and the parties:

(a) the place, or places, where the plaintiff acted in

reliance upon the defendant's representations,

(b) the place where the plaintiff received the

representations,

(c) the place where the defendant made the

representations,

(d) the domicil, residence, nationality, place of
incorporation and place of business of the parties,

(e) the place where a tangible thing which is the subject

of the transaction between the parties was situated at

the time, and

(f) the place where the plaintiff is to render

performance under a contract which he has been induced to

enter by the false representations of the defendant.

The district court found that the alleged misrepresentations

primarily occurred at the July 8th meeting in New York. Although

UCP contends that Trumpet Vine and NAFINSA subsequently repeated

the misrepresentations, the district court concluded that those

misrepresentations, if any, arose from the initial acts in New

York. Thus the district court determined that New York was the

location where Trumpet Vine made and UCP received the alleged

misrepresentations.

The court found that some acts in reliance (the due diligence)

occurred in Florida while others (the agreement to share

information) occurred in New York. Thus neither state emerged as

the place of reliance. Application of the fourth factor, the

domicil, residence, nationality and place of business of the

parties, implicated Florida, New York, Delaware, Mexico and the

Netherlands Antilles. Finally, the district court determined that,

although Del Monte was headquartered in Florida, the takeover

itself was to be consummated in New York. We agree with the

district court's determination that New York had the most

significant contacts, as the place where the misrepresentations and

the initial acts of reliance occurred.

2. Application of New York Law

 To sustain a claim for fraud under New York law, UCP must
prove by clear and convincing evidence the existence of five

elements: (1) a representation of material fact, (2) falsity of

the statement, (3) scienter, (4) deception, and (5) injury or

detrimental reliance. Channel Master Corp. v. Aluminium Ltd.

Sales, Inc., 4 N.Y.2d 403, 176 N.Y.S.2d 259, 151 N.E.2d 833, 835

(1958); Lehman v. Dow Jones & Co., 783 F.2d 285, 295 (2d

Cir.1986). Although the district court determined that UCP had

established material issues concerning the first four elements, it

concluded UCP failed to produce competent evidence sufficient to

create a genuine issue of material fact as to injury.

 Under New York law, the measure of damages for fraud is

governed by the "out-of-pocket" rule which limits recovery to costs

incurred in preparation or in performance or in passing up other

business opportunities. Fort Howard Paper Co. v. William D.

Witter, Inc., 787 F.2d 784, 793 n. 6 (2d Cir.1986); Lehman, 783

F.2d at 296. UCP did not assert that it incurred any additional

expenses as a result of Trumpet Vine's representations or that it

passed up opportunities with other investors. Moreover, the

district court determined that UCP presented insufficient evidence

to support a finding that UCP could have successfully participated

in the acquisition of Del Monte absent Trumpet Vine's

representations.

 On appeal UCP does not assert that it suffered any actual

injury. Rather, UCP argues that New York law permits the recovery

of nominal damages for fraud in the absence of any actual

injury/damages. In Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 595

N.Y.S.2d 931, 612 N.E.2d 289 (1993), the New York Court of Appeals
stated, "Nominal damages are always available in breach of contract

actions, but they are allowed in tort only when needed to protect

an "important technical right.' " Id. 595 N.Y.S.2d at 934, 612

N.E.2d at 292 (citation omitted). As an example of such an

"important technical right", the court pointed to a landowner's

right to be free of trespass. Id. The court stated that in that

particular instance a departure from the actual injury rule is

warranted because a continuing trespass may ripen into a

prescriptive right and deprive a property owner of title. Id. The

court held that an exception is not warranted for the tortious

inducement of breach of contract, the claim presented in Kronos.

The court continued,

In tort, ... there is no enforceable right until there is

loss. It is the incurring of damage that engenders a legally

cognizable right. To recognize nominal damages element of

tort claims would be to wrest the cause of action from its

traditional purposes—the compensation of losses—and to use it

to vindicate nonexistent or amorphous inchoate rights when

unlike in trespass to property, there is no compelling reason

to do so.

Id. 595 N.Y.S.2d at 935, 612 N.E.2d at 293. There is no similarly

compelling reason to depart from the actual injury rule in this

case. Accordingly, the district court correctly concluded that

nominal damages were not appropriate absent a showing of injury.

See Dress Shirt Sales, Inc. v. Hotel Martinique Assocs., 12 N.Y.2d

339, 239 N.Y.S.2d 660, 662-64, 190 N.E.2d 10, 12 (1963); Gordon v.

Dino De Laurentiis Corp., 141 A.D.2d 435, 529 N.Y.S.2d 777, 779

(1988); Lehman, 783 F.2d at 296.

C. The Implied Contract Claims

UCP raised two similar claims, breach of contract

implied-in-fact (quantum meruit) and breach of contract
 7

We treat these claims together because both would be barred

if the New York statute of frauds is applicable. 

implied-in-law (unjust enrichment).7 UCP argues that it provided

Trumpet Vine with research, experience and confidential and

proprietary information regarding Del Monte and arranged for

Trumpet Vine's entry into the bidding process. UCP contends that

Trumpet Vine requested and accepted the services and information

and should compensate UCP for the benefits received.

1. Choice of Law

 Florida has traditionally applied the lex loci contractus

rule for choice of law determinations regarding issues of contract

law. Fioretti, 53 F.3d at 1235; Goodman v. Olsen, 305 So.2d 753,

755 (Fla.1974), cert. denied, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d

58 (1975); Jemco, Inc. v. United Parcel Serv., Inc., 400 So.2d

499, 500-01 (Fla.Dist.Ct.App.1981), rev. denied, 412 So.2d 466

(Fla.1982). Under the lex loci contractus method issues concerning

the validity and substantive obligations of contracts are governed

by the law of the place where the contract is made. Ray-Hof

Agencies, Inc. v. Petersen, 123 So.2d 251, 253 (Fla.1960); Jemco,

400 So.2d at 501. A contract is made where the last act necessary

to complete the contract is performed. Jemco, 400 So.2d at 500.

 While Florida has adopted the significant contacts approach

of the Restatement (Second) of Conflict of Laws for tort actions,

see Bishop, 389 So.2d at 1001, the Florida Supreme Court has

continued to apply the traditional lex loci contractus approach for

contract actions. In Sturiano v. Brooks, 523 So.2d 1126, 1129

(Fla.1988), the Florida Supreme Court expressly declined to adopt
 8

"A federal court applying state law is bound to adhere to

decisions of the state's intermediate appellate courts absent

some persuasive indication that the state's highest court would

decide the issue otherwise." Silverberg v. Paine, Webber,

Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir.1983). 

the Restatement approach and applied the lex loci contractus rule.

Although the Florida Supreme Court specifically limited its

decision to contracts for automobile insurance, the Florida

appellate courts have continued to apply the rule to other areas of

contract law as well. See In re Estate of Nicole Santos, 648 So.2d

277 (Fla.Dist.Ct.App.1995) (validity of an antenuptial contract);

Stratford Fin. Corp. v. Security Pac. Nat. Bank, 580 So.2d 806

(Fla.Dist.Ct.App.1991) (enforceability of a brokerage contract).

Accordingly, we apply the lex loci contractus approach.8

 UCP argues that the implied contract was "made" when UCP

conferred and Trumpet Vine received the benefits, i.e.

participation in the due diligence meeting and access to the

proprietary information, which occurred in Florida. The district

court, however, determined that the last necessary act in this

cause of action was the acquisition of Del Monte which took place

in New York. In Stratford, the Florida District Court of Appeal

held an oral brokerage contract unenforceable under New York law.

580 So.2d at 806. Under the agreement, the brokerage commission

was to be payable out of the proceeds of any closing. Id. The

court of appeal determined that the closing was thus the last act

necessary to complete the contract. Id. at 806-07. Similarly, UCP

alleges that it should have received stock and a managerial role in

return for its assistance. As in Stratford, compensation could not

be awarded without a closing. As the site of the closing, New York
 9

Although the final signatures were applied in a ceremonial

signing in Mexico City, virtually all the closing activities,

including payment of the purchase price, took place in New York,

and none of the closing activities occurred in Florida. New York

is thus best characterized as the situs of the closing. In any

event, New York has a significant interest in the application of

its statute of frauds. In Intercontinental Planning, Ltd. v.

Daystrom, Inc., 24 N.Y.2d 372, 300 N.Y.S.2d 817, 825-28, 248

N.E.2d 576, 582-83 (1969), the New York Court of Appeals

emphasized one of the important legislative purposes underlying

this particular section of the statute of frauds: reducing the

number of unfounded and multiple claims for commissions. The

court found this purpose particularly compelling given New York's

role as a "national and international center for the purchase and

sale of businesses and interests therein." Id. 

law governs.9

2. Application of New York Law

 The district court concluded that because there was no

written compensation agreement between the parties, New York's

statute of frauds barred the claims. New York's statute of frauds

provides:

Every agreement, promise or undertaking is void, unless it or

some note or memorandum thereof be in writing, and subscribed

by the party to be charged therewith, or by his lawful agent,

if such agreement, promise or undertaking: ... (10) Is a

contract to pay compensation for services rendered in

negotiating a loan, ... or of a business opportunity,....

"Negotiating" includes procuring an introduction to a party to

the transaction or assisting in the negotiation or

consummation of the transaction. This provision shall apply

to a contract implied in fact or in law....

N.Y.Gen.Oblig.Law § 5-701(a)(10) (McKinney 1989).

UCP argues that the statute of frauds is inapplicable because

UCP is not seeking a set monetary fee, but rather seeks an equity

interest in the acquired company and a role in its management. The

New York statute of frauds expressly includes contracts to pay

"compensation" and is not limited to monetary fees. While UCP

correctly notes that section 5-701(a)(10) does not extend to
agreements between parties in a joint venture, see Dura v. Walker,

Hart & Co., 27 N.Y.2d 346, 318 N.Y.S.2d 289, 291-93, 267 N.E.2d 83,

85 (1971); Natuzzi v. Rabady, 177 A.D.2d 620, 576 N.Y.S.2d 326,

328 (1991), UCP has not alleged nor does the record support the

existence of a joint venture between UCP and the defendants in this

action. See Natuzzi, 576 N.Y.S.2d at 328; Orderline Wholesale

Dist., Inc. v. Gibbons, Green, van Amerongen, Ltd., 675 F.Supp.

122, 126 (S.D.N.Y.1987). UCP's complaint merely alleges, "it was

implied that the services and information were given and received

with the expectation that UCP would be compensated for them" and

that UCP "conferred a substantial benefit on defendants for which

UCP ought to be compensated." Accordingly UCP's implied contract

claims are not beyond the scope of New York's statute of frauds.

See Orderline Wholesale Dist., 675 F.Supp. at 127-28.

 UCP further argues that even if the statute of frauds

applies, there are outstanding issues of fact surrounding the "part

performance" exception to the statute which preclude granting

summary judgment on this basis. The district court correctly

rejected this argument. "[P]art performance may only be asserted

to overcome the defense of the Statute of Frauds in an action for

specific performance of the contract, and may not be raised, as

here, in an action to recover damages...." Papell v. Calogero, 114

A.D.2d 403, 494 N.Y.S.2d 127, 129 (1985), mod. on other grounds, 68

N.Y.2d 705, 506 N.Y.S.2d 309, 497 N.E.2d 676 (1986); see also

Spodek v. Riskin, 150 A.D.2d 358, 540 N.Y.S.2d 879, 881 (1989);

Mauala v. Milford Management Corp., 559 F.Supp. 1000, 1004

(S.D.N.Y.1983). In any event, under New York law, the doctrine of
part performance may be invoked only if the complaining party's

actions can be characterized as "unequivocally referable" to the

agreement alleged. Anostario v. Vicinanzo, 59 N.Y.2d 662, 463

N.Y.S.2d 409, 409-10, 450 N.E.2d 215, 216 (1983). The actions must

be " "unintelligible or at least extraordinary,' explainable only

with reference to the oral agreement." Id.; Burns v. McCormick,

233 N.Y. 230, 135 N.E. 273 (1922). Here, the nondisclosure

agreement between the parties provided that the parties "intend to

enter into discussions slating to possible acquisitions...." The

part performance exception does not apply when "the performance

undertaken by plaintiff is also explainable as preparatory steps

taken with a view toward consummation of an agreement in the

future." Anostario, 463 N.Y.S.2d at 410, 450 N.E.2d at 216; see

also McDermott v. Town of Goshen, 207 A.D.2d 612, 615 N.Y.S.2d 525,

527 (1994); Ghura v. Islip Resource Recovery Agency, 122 A.D.2d

106, 504 N.Y.S.2d 503, 504 (1986).

III. CONCLUSION

For the reasons stated above, the district court's grant of

summary judgment in favor of Trumpet Vine is AFFIRMED.