                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                                 No. 98-50844


               REFRIGERACION Y RESTAURANTE S.A. de C.V.
                      d/b/a RYR SERVICES COMPANY,

                                                         Plaintiff-Appellant,
                                        v.

                         WAL-MART STORES, INC.,
                                                         Defendant-Appellee.

           Appeal from the United States District Court
                 for the Western District of Texas
                           (SA-97-CV-354)

                                 July 13, 1999

Before JONES, STEWART, Circuit Judges, and DUPLANTIER,* District
Judge.

PER CURIAM:†

     Appellant Refrigeracion Y Restaurante S.A. de C.V. appeals the

district court’s grant of summary judgment in favor of Wal-Mart

Stores, Inc.     We affirm.

                                   BACKGROUND

     Appellant     was   hired     by   Wal-Mart    de   Mexico    to   install

refrigeration    equipment    in    Wal-Mart’s     stores   that   were   under

construction in Mexico.       Due to a downturn in Mexico’s economy,

Wal-Mart de Mexico quit constructing new stores and therefore no

longer needed appellant’s services. Appellant sued Wal-Mart Stores

Inc., the American corporation that owns 50% of Wal-Mart de Mexico,

     *
      District Judge of the Eastern District of Louisiana, sitting by
designation.
     †
      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opinion should not be published and is not precedent except under the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.
alleging breach of contract, fraud, negligent misrepresentation,

quantum meruit, and promissory estoppel.

     In appellant’s response to Wal-Mart’s motion for summary

judgment,   it   submitted   an   affidavit   by   appellant’s   attorney,

unauthenticated contracts between the parties, its pleadings, and

purported deposition transcripts of various witnesses.           After Wal-

Mart objected to the submitted evidence, the district court granted

Wal-Mart’s motion, finding that appellant had failed to produce

competent summary judgment evidence.           The court rejected the

attorney’s affidavit because he was not a party to the purported

contract and did not show that he had the personal knowledge he

claimed to have; it rejected the International Bid Proposals

because appellant’s counsel had failed to properly authenticate

them; finally, it rejected the deposition transcripts because they

did not include copies of the court reporter’s certificate of

authenticity as required by Federal Rule of Evidence 30(f).

     Appellant argues on appeal that the district court erred in

rejecting its summary judgment evidence and that it sufficiently

created a fact issue on each of its claims.             Having carefully

reviewed this appeal in light of the briefs, oral argument, and

pertinent portions of the record, we conclude that, even if the

deposition excerpts excluded by the district court are considered

on appeal,2 the appellant has failed to set forth genuine issues of

material fact sufficient to create a jury issue on any of its


     2
      Appellant does not brief on appeal and has thus waived the issue
whether the trial court properly excluded the unauthenticated
International Bid Form Proposals.

                                     2
claims.

                                STANDARD OF REVIEW

       This court reviews a grant of summary judgment de novo and

will affirm if “there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter of

law.”     Fed.     R.    Civ.   P.   56(c).       Once    the   moving   party     has

demonstrated that there is no genuine issue of material fact, the

nonmoving party must come forward with competent summary judgment

evidence sufficient to create a jury issue.                 See Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53 (1986).

                                     DISCUSSION

       Assuming    arguendo        that    appellant’s      deposition      excerpts

submitted to the district court were competent summary judgment

evidence, appellant failed to create a fact issue regarding either

the existence of a contract with Wal-Mart Stores, Inc. or its

claims     founded         in      quantum        meruit,       fraud,   negligent

misrepresentation, or promissory estoppel.

       Appellant failed to prove that it was a party to a contract

with Wal-Mart Stores, Inc.            Appellant did not contract with Wal-

Mart Stores, Inc. (an American corporation); rather, it contracted

with    Wal-Mart    de    Mexico     and   Club    Aurrera–completely       separate

entities with separately issued stock.                  It is axiomatic that one

cannot sue a party for breach of contract unless the parties have

a contractual relationship.           See Autry v. Dearman, 933 S.W.2d 182,

189 (Tex. App.--Houston [14th Dist.] 1996, writ denied)(holding

that    breach    of    contract     claim     failed    because   “there    was    no


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contractual relationship”).

     Appellant next argues that it is entitled to quantum meruit

because it rendered valuable services by transporting equipment and

employees to the Wal-Mart construction site in Merida.             To prevail

on a quantum meruit claim, the appellant must prove inter alia that

it rendered valuable services for the benefit of Wal-Mart and that

Wal-Mart accepted those services. See Vortt Explor. Co. v. Chevron

U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990).                Appellant has

failed to produce any evidence that it provided services for the

benefit of Wal-Mart at the Merida site, nor has it shown that Wal-

Mart accepted and enjoyed those alleged services.         Therefore, its

quantum meruit claim fails.

     Appellant’s fraud claim likewise lacks merit.                 By merely

alleging the facts contained in its pleadings, appellant has failed

to produce any evidence or point to any specific fact in the record

that creates a fact issue with respect to fraud.          See Wallace v.

Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996).

     Appellant next asserts a claim for negligent misrepresentation

because one of Wal-Mart’s employees allegedly told appellant’s

representative that appellant would be kept busy with projects in

the future as long as work quality remained satisfactory and

appellant’s   prices   were   fair.       To   succeed   on    a   negligent

misrepresentation claim under Texas law, appellant must prove that

Wal-Mart “misrepresented an existing fact, not a promise of future

conduct.”   Airborne Freight Corp., Inc. v. C.R. Lee Enterp., Inc.,

847 S.W.2d 289, 298 (Tex. App.--El Paso 1993, writ denied)(emphasis


                                      4
in original).   The Wal-Mart employee’s

      statement   simply   cannot  be   characterized   as  a
      misrepresentation of existing fact; if anything, it was
      a conditional promise of future employment.     Here, a
      condition precedent (if you do your job) qualified any
      promise of [Wal-Mart’s] future conduct (we will retain
      you as . . . [a] contractor). For these reasons, the
      tort of negligent misrepresentation was not proven in
      this case, as a matter of law.

Id.

      Finally, appellant asserts a promissory estoppel claim.   To

prevail on this claim, appellant must show that Wal-Mart made a

promise and appellant foreseeably and detrimentally relied upon

that promise.   See English v. Fischer, 660 S.W.2d 521, 524 (Tex.

1983). Again, appellant has produced no competent summary judgment

evidence creating a fact issue on its claim and instead relies

solely on the facts alleged in its complaint.   Pleadings, however,

are not competent summary judgment evidence and appellant’s claim

therefore fails.   See Wallace, 80 F.3d at 1047.

      Therefore, even assuming that appellant’s deposition excerpts

were proper summary judgment evidence, appellant has failed to

produce evidence sufficient to defeat Wal-Mart’s motion for summary

judgment. The district court’s judgment is AFFIRMED.

AFFIRMED.




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