     Case: 17-20788      Document: 00514642434         Page: 1    Date Filed: 09/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                    No. 17-20788                           September 14, 2018
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
LONGHORN INTEGRITY INSPECTION SERVICES, L.L.C.; GARRETT
PLETCHER; BRYAN HARPER,

              Plaintiffs - Appellees

v.

BERWIN B. MCCURDY, JR.,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-1649


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Appellees Garrett Pletcher (“Pletcher”), Bryan Harper (“Harper”), and
Longhorn Integrity Inspection Services, LLC (collectively, “LIIS”), along with
appellant Berwin McCurdy (“McCurdy”) formed Longhorn Inspection Services
in March 2014, LLC. Initially, Pletcher, Harper, and McCurdy each owned a



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-20788
one-third share of the company. In April 2015, the parties entered into an
agreement for McCurdy to sell his one-third membership interest to Pletcher
and Harper for $15,000 to be paid no later than January 1, 2016. Between April
2015 and July 2015, the parties orally modified the contract, agreeing that
McCurdy would instead sell 281/3 percent of his interest in exchange for
$10,000.   Subsequently,     McCurdy     emailed    Pletcher    referencing   the
modification and providing instructions for wiring money to McCurdy’s bank
account. In December 2015, LIIS wired $10,000 as McCurdy had instructed,
but the bank returned the transfer with a notice that McCurdy’s account was
closed. LIIS raised this issue with McCurdy and offered, through counsel, to
pay McCurdy. McCurdy refused.
      In April 2016, LIIS sued McCurdy in state court alleging breach of
contract and seeking specific performance of the modified agreement. McCurdy
removed the case to federal court based on diversity jurisdiction and
counterclaimed for negligence under the Texas Deceptive Trade Practices Act
(“DTPA”), fraudulent misrepresentation, and wrongful discharge under the
Occupational Safety and Health Administration (“OSHA”) retaliatory
discharge provision. The district court granted LIIS summary judgment on all
of McCurdy’s counterclaims. After a bench trial, the court ruled for LIIS,
finding McCurdy had materially breached the modified agreement, ordering
him to transfer the agreed-upon portion of his shares, and awarding LIIS
attorneys’ fees. McCurdy appeals.
      We review a summary judgment order de novo. Kariuki v. Tarango, 709
F.3d 495, 501 (5th Cir. 2013). Summary judgment is warranted if there are no
genuine disputes of material fact. Fed. R. Civ. P. 56(a). Following a bench trial,
we review findings of fact for clear error and conclusions of law de novo.
Dickerson v. Lexington Ins. Co., 556 F.3d 290, 294 (5th Cir. 2000). We review


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                                  No. 17-20788
an award of specific performance of a contract for abuse of discretion. Bennett
v. Copeland, 235 S.W.2d 605, 609 (Tex. 1951).
      We conclude that the district court properly granted summary judgment
dismissing McCurdy’s counterclaims. First, as to McCurdy’s negligence claims
under the DTPA, we agree with the district court that McCurdy failed to show
he is a consumer transacting in goods or services as defined by the statute. See
TEX. BUS. & COM. CODE § 17.45(4) (“consumer” is one who, inter alia, “seeks or
acquires by purchase or lease … any goods or services”). Furthermore, even if
the DTPA did apply, we agree with the district court’s conclusion that
McCurdy’s negligence claims are wholly unsupported by the record. Second, as
to McCurdy’s claims that LIIS fraudulently misrepresented the wiring
instructions and the value of McCurdy’s shares, we agree with the district
court’s conclusion that McCurdy failed to offer any evidence of a false
representation by LIIS and any evidence of his justifiable reliance on any
alleged misrepresentations by LIIS. See, e.g., Zorilla v. Aypco Constr. Co. II,
LLC, 469 S.W.3d 143, 153 (Tex. 2015) (setting out elements of fraudulent
misrepresentation). Lastly, as to McCurdy’s purported wrongful discharge
action under OSHA, we agree with the district court that there is no private
right of action under OSHA’s retaliatory discharge provision, 29 U.S.C.
§ 660(c). See George v. Aztec Rental Ctr., Inc., 763 F.2d 184, 186 (5th Cir. 1985).
Even if there were, we also agree with the district court that the undisputed
evidence shows that McCurdy was never discharged by LIIS.
      We also find no errors in the district court’s conclusions regarding the
breach of contract claim and attorneys’ fees. First, we reject McCurdy’s
argument that the original agreement was invalid because the parties signed
two distinct copies; the district court did not err in concluding that the parties
did not condition their agreement on signing the same copy. See, e.g., City of
Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968)
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                                     No. 17-20788
(courts must effectuate parties’ intent as expressed in unambiguous writing);
Jim Walter Homes, Inc. v. Schuenemann, 668 S.W.2d 324, 327 (Tex. 1984)
(separate documents executed for same purpose and within one transaction are
construed together); Mid-Continent Cas. Co. v. Global Enercom Mgmt., Inc.,
323 S.W.3d 151, 157 (Tex. 2010) (contract need not be signed to be valid unless
parties explicitly required signatures as condition of mutual assent). Second,
the district court did not err in concluding the parties validly modified the
original agreement as to the percentage of shares and the price. See, e.g., Lone
Star Steel Co. v. Scott, 759 S.W.2d 144, 153 (Tex. App.—Texarkana 1988, writ
denied) (under Texas law a written contract may be modified by subsequent
oral agreement). Third, we reject McCurdy’s argument that the modified
agreement was invalid under company regulations requiring certain
formalities for transferring interests; the district court did not err in finding
the parties did not intend the modified agreement to be subject to those
regulations. Fourth, we find that the district court did not abuse its discretion
in ordering specific performance. See, e.g., DiGiuseppe v. Lawler, 269 S.W.3d
588, 593 (Tex. 2008) (specific performance appropriate where party seeking
performance (1) was “ready, willing, and able to timely perform” contractual
obligations, and (2) tendered performance); Miga v. Jensen, 96 S.W.3d 207, 217
(Tex. 2002) (specific performance appropriate to enforce stock purchase of a
closely-held corporation) (citation omitted). Finally, we conclude the district
court properly awarded LIIS attorneys’ fees based on McCurdy’s breach of the
modified agreement. See Tex. Civ. Prac. & Rem. Code § 38.001(8) (movant may
recover reasonable attorneys’ fees on valid claim for oral or written contract). 1
      AFFIRMED



      1 McCurdy does not contest the reasonableness of the attorneys’ fees awarded and has
therefore abandoned that issue. Yohey v. Collins, 985 F.2d 222, 224 (5th Cir. 1993).
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