Gonzalez v. Morgan Stanley Dean Witter, Inc. ( 2006 )


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  •                                                         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    that this opinion should not be published and is not precedent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.
    

Document Info

Docket Number: 05-50325

Judges: Reavley, Clement, Prado

Filed Date: 7/11/2006

Precedential Status: Non-Precedential

Modified Date: 11/5/2024