              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                          October 22, 2009
                                       No. 08-20746                    Charles R. Fulbruge III
                                                                               Clerk

RUDY LOVE, doing business as Rudy Love Distributing Company,

                                                   Plaintiff - Appellant
v.

D F STAUFFER BISCUIT COMPANY, INC,

                                                   Defendant - Appellee

v.

BARBCO, INC,

                                                   Intervenor - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas


Before REAVLEY, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
       Vanilla wafers are at the center of this dispute. Rudy Love (“Love”) and
Barbco, Inc. (“Barbco”) claim that D. F. Stauffer Biscuit Company, Inc.
(“Stauffer”) agreed to sell the snacks to them, but Stauffer disagrees. The



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-20746

district court sided with Stauffer and granted summary judgment without a
written opinion. Love and Barbco now appeal. After reviewing the record,
hearing oral argument, and considering the context of negotiations, we agree
with the otherwise taciturn district court that there was no contract and affirm.


      First, Love and Barbco conceded at oral argument—and we agree—that
the district court had jurisdiction, so we proceed to the merits.
      When negotiations take place in writing, we can evaluate offer and
acceptance as a matter of law. Gilbert v. Pettiette, 838 S.W.2d 890, 893 (Tex.
App. 1992). Love and Barbco point to a May 3, 2006, e-mail from a Stauffer
employee and characterize it as a year-long firm offer. We disagree. Texas law
caps firm offers at thirty days. We think a more reasonable interpretation is to
read the e-mail as at best a modification of a previous rejected offer, limited to
acceptance within thirty days just as the previous offer required. Neither Love
nor Barbco accepted within that time. When Stauffer offered to honor the
expired price if Barbco would show the contract to Stauffer, Barbco apparently
failed to do so. We can find no Stauffer offer that Barbco accepted.
      We find Love and Barbco’s other arguments similarly unpersuasive. First,
although we agree that the district court erred in ruling sua sponte on all of their
claims when only presented with a motion for summary judgment on the
contract claim, the error was harmless. Second, whether the district court
abused its discretion in refusing to continue discovery is a closer issue, but we
are not convinced that further discovery would have changed the outcome. Any
error was harmless. Third, the district court did not abuse its discretion when
it denied Love and Barbco’s motion to amend the pleadings. They had ample
time to amend, and their amendments would have had no effect.
      For these reasons, the judgment of the district court is AFFIRMED.



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