               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 95-50255
                          Summary Calendar
                       _____________________



CLAUS WERNER

                                               Plaintiff-Appellant,

                              versus

INTERNATIONAL BANK OF COMMERCE

                                              Defendant-Appellee.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Western District of Texas
                          (SA-93-CV-703)
_________________________________________________________________
                        November 24, 1995

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

     The plaintiff, Claus Werner ("Werner"), appeals a judgment in

favor of the defendant, International Bank of Commerce ("IBC").

Having reviewed the record, the briefs of the parties, and the

order of the district court, we find no reason to reverse the

district court.




     *
     Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
                                      I

     Werner is a sophisticated German real estate investor who, in

late 1991, began investigating the possibility of purchasing the

Republic of Texas Plaza in San Antonio, Texas.            The Plaza consists

of a thirteen-story "Tower" and a five-story "Small Building."

Werner enlisted the assistance of Bernard Buecker, a San Antonio

attorney and broker.1       Buecker had previously represented a party

who had contracted to purchase the Plaza for $10.5 million.                   In

1992, Buecker informed Werner that this contract had expired.

Werner   then   travelled    to   Texas    to   inspect   the   Plaza   and   to

ascertain a suitable bid price.

     Based on his inspection, Werner allegedly decided to offer

$8.5 million to purchase the Plaza. About this same time, however,

Buecker told Werner that the International Bank of Commerce ("the

bank" or   "IBC")   might    be   interested     in   purchasing   the   Small

Building from Werner if Werner purchased the entire Plaza.                    In

early April 1992, Werner and Buecker met with Malcolm Hartman, a

representative of the bank.         They discussed the possibility that

the bank would actually make an offer on the Plaza and, if the

offer were accepted, sell the Tower to Werner.             Hartman allegedly

told Werner that the bank was not interested in keeping the Tower

if it purchased the Plaza.        Werner decided that instead of bidding

     1
       Werner claims that Buecker's relationship to him was only
that of broker to client, and not of attorney to client. Buecker,
on the other hand, contends that he is a lawyer, but not a real
estate broker.




                                     -2-
on the Plaza, he would wait to see if the bank made an offer.

Ultimately, IBC did buy the entire Plaza, closing on the purchase

in late September 1992.          IBC did not, however, offer the Tower to

Werner.

       On April 15, 1992, several months before the bank's purchase

of the Plaza, Buecker informed Werner by letter that "Mr. Hartman,

the lawyer for the bank, said it would be very wise . . . for you

to make an offer also on Republic of Texas Plaza, in case they

decide not to go through with their offer."              Buecker advised Werner

to offer $9.4 million on the Plaza, but Werner decided to continue

to wait "until [he] could determine just what IBC's plans really

were."    Although Werner testified by affidavit that he distrusted

the advice of Buecker, this letter clearly put Werner on notice

that     he    could   not     rely   justifiably    on     any   prior   alleged

representation that the bank may have made concerning sale of the

Plaza.

       Werner continued to meet with the bank or its representatives,

and claims that, notwithstanding the admitted complete absence of

any final agreement or terms of sale--formal or informal, in

writing       or   oral--the   bank   made    additional    indications      (after

April 15, 1992) that it would sell the Tower to Werner if it were

able to purchase the entire Plaza.               Examination of the summary

judgment record, however, including correspondence among Werner or

his    associates,      and    representatives      of     IBC,   confirms     that

representations made after the April 15, 1992 letter (if any) were




                                        -3-
even more indeterminate and less committal than those made before

Buecker's letter advising Werner that he should bid on the Plaza

himself.   Moreover, as Werner alleges, some number of weeks before

IBC submitted its bid on the property (it is not clear from the

record exactly how long before the bid was submitted), IBC broke

off all communications concerning the proposed purchase of the

Plaza.

                                  II

     Texas law requires "justifiable as well as actual" reliance on

a defendant's alleged misrepresentation to support recovery for

fraud.     Beijing Metals & Minerals Import/Export Corp. v. Am.

Business Ctr., Inc., 993 F.2d 1178, 1186 (5th Cir. 1993).                 The

district   court,   having   considered    summary    judgment     evidence

submitted by both parties, and applying the standard enunciated by

this court in Beijing and Roberts v. United N.M. Bank, 14 F.3d 1076

(5th Cir. 1994), held that Werner, as a matter of law, could not

have justifiably relied on any alleged fraud by IBC.        See Roberts,

14 F.3d at 1078 (discussing summary judgment standard of review in

determining   "justifiability"   of     reliance,    requiring    court    to

"inquire      whether--given     [the]       plaintiff's         individual

characteristics, abilities, and appreciation of facts . . . it is

extremely unlikely that there is actual reliance . . .") (emphasis

added); see also Haralson v. E.F. Hutton Group, Inc., 919 F.2d 1014

(5th Cir. 1990) (holding that judgment must be granted in favor of

defendant if summary judgment record establishes plaintiff could




                                  -4-
not have justifiably relied on alleged fraudulent conduct as matter

of law).

     Based on the summary judgment evidence, the district court

concluded:

     Werner could not justifiably have relied on the earlier
     misrepresentations he should not bid on the property, if
     misrepresentations there were,2 after reading the letter
     from his attorney stating he should bid on the property.

          Furthermore, Werner states in his complaint
     communications with the Bank ceased at some point and
     there was no indication negotiations would continue in
     the future.     As discussed above, an impasse in
     negotiations indicates no business arrangement has been
     finalized and, therefore, reliance upon representations
     made before the impasse would not be justifiable.

          Despite these facts and circumstances, Werner
     purportedly     relied    on    the     Bank's    alleged
     misrepresentations as inducement to refrain from making
     a bid on the property. Even viewing the evidence in the
     light and all reasonable inferences most favorable to
     Werner, given Werner's individual characteristics,
     abilities, and appreciation of the facts, this Court
     concludes it is extremely unlikely there was actual
     reliance on Werner's part. This is especially true in
     light of the letter which made the Bank's position clear:
     Werner should bid on the property. For these reasons,
     this Court concludes IBC has proven the summary judgment
     record conclusively establishes Werner could not have
     justifiably relied on the alleged misrepresentations in
     not bidding on the property. IBC is therefore entitled
     to summary judgment as a matter of law.




             2
              The   district   court's  editorial   comment,   "if
misrepresentations there were," seems right on the mark. Based on
the affidavits and documents in the record, IBC probably had as
strong an argument on its motion for summary judgment, had it
chosen to pursue such an argument, that no evidence exists to
support the first element of fraud--that a material representation
was ever made in the first place.




                               -5-
District      Court's   Order    of   March     14,   1995   at    6-7    (citations

omitted).

       We   agree   with   the    district       court's     holding.          It   was

unreasonable as a matter of law for Werner to place any reliance on

the alleged misrepresentations of IBC, in light of the letter

Werner received while on vacation to Mexico. Further, the district

court might as easily have found another fraud element missing in

this case--proof that IBC made its alleged representation with the

intention that it should be relied upon by Werner.                 If IBC made any

representation to Werner concerning sale of part of the Tower, we

believe IBC made crystalline its intention that Werner not rely

upon   such    representation,        through   its   statements         to   Werner's

attorney or broker in the April 15 letter.

                                        III

  Therefore, for the reasons set out by the district court in its

Order and Judgment of March 14, 1995, the judgment in favor of the

defendant, International Bank of Commerce, is hereby

                                                                  A F F I R M E D.




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