                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                        _______________________

                              No. 96-20219
                        _______________________


BETTER ENTERPRISES CORPORATION, INC.,

                           Plaintiff - Counter Defendant - Appellant,

                                  versus

QUANTUM CHEMICAL CORPORATION, Et Al,

                                                               Defendants,

QUANTUM CHEMICAL CORPORATION,

                         Defendant - Counter Claimant - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          (CA-H-94-1121)
_________________________________________________________________


                          April 10, 1997
Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

           This court has considered appellant’s position in light

of the fine arguments of counsel, briefs, and pertinent portions of

the record.     Having done so, we conclude, as did the district

court, that there was no meeting of the minds by the parties on the



     *
            Pursuant to Local 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
sale price of the ASP sufficient to form a contract.            The issue was

appropriately     treated   as   one       of   law   because   the    parties’

negotiations occurred in writing. Gilbert v. Pettiette, 838 S.W.2d

890, 893 (Tex. App. -- Hou. [1st Dist.] 1992, no writ).                Better’s

“acquiescence” in a sale price of $850,000 lasted less than two

weeks until Better itself sought to change the price allegedly

based on omission of certain equipment from the sale.                 After that

point, the parties’ negotiations failed to produce an agreed sales

price, much less a signed contract with the required 50% down

payment.

           The district court also correctly rejected Better’s DTPA,

negligent misrepresentation and fraud claims. The DTPA claims boil

down to allegations of breach of contract, which are not actionable

under the DTPA.    Crawford v. Ace Sign, 917 S.W.2d 12 (Tex. 1996).

We are unpersuaded that Better produced evidence of fraudulent or

negligent misrepresentations by Quantum of the exact equipment

available or of Quantum’s intent to sell to Better.

           The trial court’s grant of judgment as a matter of law is

therefore AFFIRMED.




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