     Case: 09-20120     Document: 00511066227          Page: 1    Date Filed: 03/30/2010




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

                                                  FILED
                                                                           March 30, 2010
                                       No. 09-20120
                                                                       Charles R. Fulbruge III
                                                                               Clerk
LITHCON PETROLEUM USA INC.

                                                   Plaintiff - Appellant

v.

CHIN A PE TROCHEM ICAL CORP; CHINA PETROCHEM ICAL
INTERNATIONAL COMPANY; SINOPEC USA; MASTERANK INC.;
MASTERANK LIMITED; CHINA PETROLEUM AND CHEMICAL CORP.

                                                   Defendants - Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:00-CV-4032




Before JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges.
PER CURIAM:*
        Lithcon Petroleum USA, Inc. and China Petrochemical International
Company (“CPIC”) jointly owned Sinocon, Inc.                 Sinocon marketed paraffin
manufactured by CPIC’s corporate affiliates. In the late 1990s, CPIC’s affiliates
diverted sales away from Sinocon to Masterank Ltd. and Masterank, Inc.,
causing Sinocon ultimately to fail. Lithcon sued CPIC and its corporate affiliates



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-20120      Document: 00511066227 Page: 2       Date Filed: 03/30/2010
                                   No. 09-20120

for breach of contract and fiduciary duties, claiming that Sinocon had the right
to market all of CPIC’s paraffin. Lithcon sued Masterank, Inc. and Masterank
Ltd. for interfering with this right.
         The district court granted summary judgment in favor of the defendants
on two alternate grounds. First, Lithcon’s evidence demonstrated that both
Lithcon and Sinocon knew CPIC sold paraffin through other sales agents
throughout Sinocon’s existence but did nothing to protect their alleged exclusive
rights. Thus, the statute of limitations had run. T EX. C IV. P RAC. & R EM. C ODE
§§ 16.004(a)(5), 16.051 (Vernon 2002) (the limitations period for both breach of
contract and violation of a fiduciary duty is four years). Second, the district
court alternatively held that Lithcon waived its claims by failing to take any
action against the defendants for nearly ten years. Tenneco, Inc. v. Enterprise
Products Co., 925 S.W.2d 640, 643 (Tex. 1996) (“Silence or inaction, for so long
a period as to show an intention to yield the known right, is also enough to prove
waiver.”)
         Lithcon focuses almost exclusively on other issues that the trial court did
not address. Lithcon wholly fails to appeal the waiver ground for summary
judgment. Lithcon complains about but neither challenges the court’s findings
nor provides any persuasive legal precedent excusing Lithcon’s and Sinocon’s
failure to file a claim within the limitations period. Where a district court grants
summary judgment on multiple grounds, judgment will be affirmed unless the
appellant negates all grounds. Williams v. Cain, 229 F.3d 468, 474 n. 5 (5th Cir.
2000). Lithcon failed to negate waiver and ineffectually briefed the limitations
issue.
         Accordingly, the district court’s judgment is AFFIRMED.




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