                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  July 11, 2006

                        ))))))))))))))))))))))))))         Charles R. Fulbruge III
                                                                   Clerk
                              No. 05-50325

                        ))))))))))))))))))))))))))

                      RAMON GONZALEZ, JR., M.D.,

                         Plaintiff–Appellant,

                                   v.

            MORGAN STANLEY DEAN WITTER, INC.; ET AL.,
                            Defendants,

               MORGAN STANLEY DEAN WITTER, INC.; ET AL.,

                         Defendants–Appellees.


           Appeal from the United States District Court
                 for the Western District of Texas
                        USDC No. 5:03-CV-901



Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Ramon Gonzalez, Jr., appeals the

district court’s grant of judgment as a matter of law (“JMOL”) in

favor of Defendants-Appellees Morgan Stanley Dean Witter, Inc.

and Carl I. Fuhrmann, Jr. (collectively “Morgan Stanley”).         After

Gonzalez presented his case to the jury, the district court found

there was no legally sufficient evidentiary basis for a


     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
reasonable jury to find in favor of Gonzalez on his fraud claims.1

More specifically, the district court concluded that Gonzalez had

a non-discretionary account with Morgan Stanley and that he had

not presented evidence of a fraudulent misrepresentation or

material omission, a necessary element of his fraud claims.2

     We review a grant of JMOL de novo.        Wallace v. Methodist

Hosp. Sys., 271 F.3d 212, 218 (5th Cir. 2001).      JMOL is

appropriate when “a party has been fully heard on an issue and

there is no legally sufficient evidentiary basis for a reasonable

jury to find for that party on that issue . . . .”      FED. R. CIV. P.



     1
       Gonzalez brought a claim for common law fraud and a claim
for fraud under the Texas Securities Act. See TEX. REV. CIV. STAT.
ANN. art. 581-33(A)(2).
     2
       Both the Texas Securities Act and common law fraud claims
require a misrepresentation. The Texas Securities Act states:

     A person who offers or sells a security . . . by means of
     an untrue statement of a material fact or an omission to
     state a material fact necessary in order to make the
     statements made, in the light of the circumstances under
     which they are made, not misleading, is liable to the
     person buying the security from him . . . .

TEX. REV. CIV. STAT. ANN. art. 581-33(A)(2).

     Under Texas law, in order to bring a common law fraud cause
of action, the plaintiff must show:

     (1) a material representation was made; (2) it was false
     when made; (3) the speaker either knew it was false, or
     made it without knowledge of its truth; (4) the speaker
     made it with the intent that it should be acted upon; (5)
     the party acted in reliance; and (6) the party was
     injured as a result.

Herrmann Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 563
n.3 (5th Cir. 2002).
50(a)(1).   “We are to review the record as a whole, drawing all

reasonable inferences in favor of the nonmoving party and without

making credibility determinations or weighing the evidence. . . .

[T]here must be more than a mere scintilla of evidence in the

record to render the grant of JMOL inappropriate.”     Wallace, 271

F.3d at 219.

     Gonzalez failed to present more than a mere scintilla of

evidence of a fraudulent representation.    Gonzalez had a non-

discretionary account with Morgan Stanley: he needed to approve

each transaction before it was effected.    The evidence shows that

Gonzalez, or his wife on his behalf, assessed each of Morgan

Stanley’s recommendations and accepted or rejected the

recommendations based on that assessment.     The record does not

establish an actionable fraudulent representation regarding the

performance of Gonzalez’s fund.   AFFIRMED.
