                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                   October 16, 2006

                                                        Charles R. Fulbruge III
                                                                Clerk
                            No. 05-20836


                    WISMER DISTRIBUTING COMPANY,

                                                Plaintiff-Appellant,

                               versus

                       BRINK’S, INCORPORATED,

                                                Defendant-Appellee.



          Appeal from the United States District Court
               for the Southern District of Texas
                         (4:03-CV-5897)


Before BARKSDALE, BENAVIDES and OWEN, Circuit Judges.

PER CURIAM:*

     Wismer Distributing Company challenges the summary judgment

awarded Brink’s, Incorporated.    See Wismer Dist. Co. v. Brinks

Inc., No. Civ. A.H.-03-5897, 2005 WL 1840149, at *3-4 (S.D. Tex. 2

Aug. 2005).    AFFIRMED.

                                 I.

     Wismer, a Texas beer distributor, and Brinks, an armored-

transportation provider, entered a contract in November 2002.         It

specified: Brinks would “call for”, receive, and deliver deposits


     *
       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this opinion should not be published and is not precedent except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.
from Wismer to its bank; and Brinks’ liability would “commence when

the Shipment has been received into Brinks’ possession”.        Not

included in the complete written integration of the contract was

Brinks’ oral assurance it would provide Wismer with a customer-

receipt book and photo-identification-signature list of all Brinks

employees authorized to receive a shipment.    Brinks never provided

these materials; Wismer never demanded them.

     On 5 May 2003, persons impersonating Brinks employees (but not

wearing a sidearm or security badge, as did the regular Brinks

employees) appeared at Wismer at the designated pick-up time and

obtained a $400,000 deposit of cash and checks.      After stopping

payment on the stolen checks, Wismer’s total loss was approximately

$129,000. The cash was neither recovered nor covered by insurance.

                                II.

     A summary judgment is reviewed de novo.       Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986). Summary judgment is appropriate

“if ... there is no genuine issue as to any material fact and the

mov[ant] ... is entitled to a judgment as a matter of law”.     FED.

R. CIV. P. 56(c).   The movant must demonstrate the absence of such

material fact issues, but need not negate the elements of the

nonmovant’s case.   Bourdeaux v. Swift Transp. Co., Inc., 402 F.3d

536, 540 (5th Cir. 2005).   When the movant has met its Rule 56(c)

burden, the nonmovant must identify specific evidence in the

summary judgment record giving rise to a material fact issue and


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articulate the manner in which the evidence supports its claim.

Johnson v. Deep E. Texas Reg’l Narcotics Trafficking Task Force,

379 F.3d 293, 305 (5th Cir. 2004).              All reasonable inferences are

made in the light most favorable to the nonmovant,                  Calbillo v.

Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir. 2002); but,

summary    judgment     is   proper   if      the   nonmovant   “‘fails    ...   to

establish the existence of an element essential to [its] case, and

on which [it] will bear the burden of proof at trial’”.                  Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quoting

Celotex Corp., 477 U.S. at 322).

      Wismer claims the district court erred in holding Brinks had

neither an implied duty to perform the contract in a workmanlike

manner nor any duty sounding in negligence independent of the

contract.        Essentially for the reasons stated in the district

court’s well-reasoned opinion, summary judgment was proper.

                                       A.

      Concerning the claimed implied duty, Wismer contends: Brinks’

oral assurance it would provide Wismer with a customer-receipt book

and   photo-identification        list,       along   with   Brinks’     customary

practice of instructing clients on identifying Brinks employees,

created an implied duty to perform these tasks.                 Under Texas law,

however,    if    a   contract   substantially        delineates   the    parties’

respective rights and duties, the contract governs.                Sw. Bell Tel.

Co. v. DeLanney, 809 S.W.2d 493, 494-95 (Tex. 1991).


                                          3
     An implied duty to perform in a workmanlike manner “attaches

only to the performance of acts the parties agreed to perform”.

City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773, 784

(Tex. App. 1992).      Any implied duty

             must rest entirely on the presumed intention
             of the parties as gathered from the terms as
             actually expressed in the written instrument
             itself .... It is not enough to say that an
             implied covenant is necessary in order to make
             the contract fair or that without such a
             covenant it would be improvident or unwise.

Danciger Oil & Refining Co. v. Powell, 154 S.W.2d 632, 635 (Tex.

1941) (emphasis added).

     Wismer relies on extrinsic evidence to claim Brinks had a duty

to provide Wismer with training and materials to properly identify

Brinks’ employees.      But Wismer fails to establish such an implied

duty based on the terms of the contract.             Therefore, Wismer’s

implied-duty claim fails as a matter of law.

                                     B.

     In    the      alternative,     Wismer   maintains    a      contractual

relationship may create duties in tort as well as contract.                  It

claims    Brinks’    failure   to   provide   training   and   materials     to

identify its employees constitutes tortious negligence.

     Texas    courts    have   acknowledged    confusion   over    whether    a

contract may give rise to duties in tort and contract.             DeLanney,

809 S.W.2d at 495.       It is well-settled under Texas law, however,

that: “When the injury is only the economic loss to the subject


                                       4
matter of a contract itself, the action sounds in contract alone”.

Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986).

Wismer’s deposits were the subject matter of the contract.   Thus,

the action sounds in contract alone.   Accordingly, as a matter of

law, Wismer has no negligence claim.

                              III.

     For the foregoing reasons, the judgment is

                                                      AFFIRMED.




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