Plаintiff Richard L. Conkling (“Conkling”) appeals a take-nothing judgmeht rendered against him based upon his claims for violations of the Racketeer Influenced and Corrupt Organizations Act 1 (“RICO”), breach of fiduciary duty, and breach of contract under Louisiana law. Finding no error with the trial court’s resolution of the RICO and breach of contract claims, we affirm the district court’s judgment in those regards. However, we find that the district court erred in granting summary judgment on the breach of fiduciary duty claims, as discussed below, and reverse and remand that portion of the ease.
I. Background
This case has its origins in 1961, when defendant Bert S. Turner (“Turner”) recruited Conkling to work for a corporation that Turner was forming with L.W. “Puna” Eaton, Jr. (“Eaton”). The corporation, Nichols Construction Corporation (“Nichols”), was formed on December 28, 1961. Conkling went to work for Nichols in January 1962. Conkling alleges that Turner represented at the time that he would give Conkling stock in Nichols and all later-formed entities if Con-kling would make a long-term commitment to Nichols and that such stock would be redeemed at a fair price when Conkling’s employment ended. Conkling claims he accepted this offer.
A. The Nichols Agreements
In November 1962, Turner had a document prepared (the “1962 agreement”) which provided for the issuance of 10 shares, or 5%, of Nichols’ stock to Conkling, and 10 shares each to two other minority shareholders, Carmen St. Clair (“St. Clair”) and J.B. Milli-ean (“Milliean”). The 1962 agreement also provided that Turner and Eaton would each receive 85 shares, or 42.5%, of the Nichols stock. The price set forth in the document for the stock was $1,000 per share. Con-kling, St. Clair, and Milliean were each to give a $10,000 one-year note for his shares, and the document provided that Nichols would hold his shares until the notes were paid. Each of the parties executed the 1962 agreement.
B.oth Conkling and Turner testified that all parties agreed not to follow this agreement after it was executed. In fact, Turner and Eaton were apparently successful in obtaining financing after the 1962 agreement was executed, and purportedly paid only $500, rather than $85,000, for their shares. Con-kling also claims that, several days after Turner presented this document, Turner gave Conkling his stock certificate for 10 shares, telling him that he was receiving the stock for services Conkling had previously performed for Nichols and that he would not have to pay the $10,000 note unless Nichols failed. Defendants stipulated that, according to Nichols’ records, Conkling was issued 10 shares of Nichols’ stock on November 15, 1962.
Six months later, in May 1963, Nichols redeemed Eaton’s 85 shares at Turner’s direction. According to Conkling, Turner engaged in questionable practices related to his negotiations with Eaton, including ordering the reporting of profits on certain Nichols jobs to be delayed and instructing Conkling to withhold a number of profitable jobs from Nichols’ financial statement. Turner also allegedly misrepresented to Eaton the value of Nichols’ equipment in order to avoid paying him a greater amount for redemption of his stock. Conkling alleged that the redemption of Eaton’s stock increased his proportionate ownership of Nichols from 5% to 8.69565%.
In June 1963, Turner directed his lawyer to prepare another document (the “1963 agreement”) which recited that Turner owned 100% of Nichols. This agreement set forth the terms for Conkling and the other minority shareholders to purchase an 8% interest in Nichols. The document also contained a right of first refusal and specific formula for redemption of any Nichols stock; however, that provision was subsequently deleted by agreement in August of 1966. With *1290 out telling Conkling anything beyond the contents of the document, Turner stood over Conkling as Conkling read and signed the document. Conkling argues that, as a result of Turner’s concealment and misrepresentations, Conkling relinquished his 8.69565% interest and purchased an 8% interest in Nichols.
B. The Nichols Affiliates
Over the years, Nichols prospered and new companies were formed by Turner. The original Nichols shareholders had an oral agreemеnt to share proportionate ownership in any direct affiliates or spin-off companies of Nichols. The relative ownership relationship for the affiliate companies was to be based upon the original ownership ratio of Nichols. The following companies, formed as affiliates, spin-offs, or alleged affiliates of Nichols, form the basis of Conkling’s complaint.
1.National Maintenance, International Maintenance, TSMC, BTL, TL, and Crest
In 1970, Nichols spun off a corporation to conduct maintenance work previously done in Nichols’ name and transferred almost $1,000,000 worth of assets to the newly formed company, named National Maintenance Corporation (“National Maintenance”). Conkling purchased an 8% interest in National Maintenance in accordance with the relative ownership agreement between the original Nichols founders. Similarly, International Maintenance Corporation (“International Maintenance”) was formed in 1971, and, although no stock was issued until 1977, Conkling was able to purchase an 8% interest in that company as well.
In 1971, TSMC Company (“TSMC”) was formed as a partnership designed to be supported exclusively by income from rental of construction equipment to Nichols’ affiliates on a cost-plus basis. Conkling received an 8% interest in this partnership. T.L. Company (“TL”) and BTL Company (“BTL”) were also partnerships whose revenues came from the rental of construction equipment to Nichols and affiliates on a cost-plus basis. Conkling purchased 8% interests in each in 1978 and 1980, respectively. Crest, Inc. (“Crest”) was formed as a Texas corporation to pursue construction opportunities in that state. Conkling acquired an 8% interest in Crest in August of 1974.
2. TIL
In October of 1981, Turner formed Turner Investments, Ltd. (“TIL”), wholly owned by Turner and his family, to hold his interests in Nichols and another related company. It subsequently became the chief operating company over Nichols and its affiliates, consolidating executive management, data processing, and accounting personnel for these companies. TIL billed Nichols and its affiliates for its services, and Conkling asserted that the billings were excessive.
3. Blast, Trebco, and IPS
In August of 1975, Turner formed Blast Corporation (“Blast”), which subsequently entered the residential construction market under the name S & S Homes, Inc. (“S & S”). Turner supposedly told Conkling that Blast was a mere shell, and Conkling did not purchase an interest in the company. After sustaining losses, S & S was changed back to Blast, and the company was purchased by Nichols in August of 1977.
Trebco Corporation (“Trebco”) was formed in September of 1983 to perform non-union industrial construction and maintenance wоrk in Texas. Conkling claims that Turner concealed Trebco so that he would not be able to purchase an interest in the company. Turner directed Nichols to lend up to $600,-000 to Trebco for working capital, but the company was relatively unsuccessful, reporting heavy operating losses. Trebco was subsequently sold to Nichols on October 9,1984, although the stock certificate effecting the transfer was backdated to November 1,1983.
Nichols also spun off its entire pipe fabrication division and formed International Piping Systems, Ltd. (“IPS”) in July of 1982. In the process, Nichols also transferred approximately $200,000 worth of assets to the newly-formed company. The stock in IPS was originally issued to TIL, Turner’s family-owned company, although Conkling claims he *1291 was told it would be issued to Nichols. During the time the IPS stock was owned by TIL, Nichols guaranteed $7,000,000 in bonded indebtedness on behalf of IPS and loaned money to the company. Conkling. alleges that, in December of 1983, when he discovered that the IPS stock had been issued to TIL, rather than to Nichols, he brought- the ownership issue to Turner’s attention, and Turner fired him. All of the stock in IPS was subsequently acquired by Nichols in April of 1984 for the same price as had been paid by .TIL.
4. Harmony
On the same day Blast was formed, in August of 1979, Turner also formed Harmony Corporation (“Harmony”). Turner has apparently admitted that he сoncealed the creation of Harmony from Conkling. The stock in Harmony was issued originally to unrelated parties, but was subsequently acquired by Nichols and then Turner. Con-kling learned of Turner’s ownership of Harmony and made repeated requests to purchase an interest in the company. Although ’Turner takes the position that Conkling was never entitled to purchase his relative ownership interest in Harmony, he allowed Con-kling to purchase 5,161 shares on March 14, 1980, for $1.00 per share. Conkling understood that this quantity of shares would make him an 8.69565% owner of the company. However, later that day, an additional 33,450 shares of Harmony were issued to Harmony’s president, C.N. “Bones” MeLel-lan, Jr. (“McLellan”), thus diluting Con-kling’s interest. McLellan testified that he was told he was to hold the new shares as a nominee for Turner and that they were to be subject to Turner’s secret option to purchase. In fact, although McLellan gave a note to Harmony for the purchase price of these shares, the obligation was later cancelled when Turner purchased the shares by executing a note to Harmony in the same amount.
5. Merit,. Merit Environmental, and Gymco
Merit Industrial Constructors, Inc. (“Merit”) and its wholly-owned subsidiary, Merit Environmental Services, Inc. (“Merit Environmental”) were Louisiana corporations created in early 1982 to perform non-union industrial and environmental cоnstruction and maintenance work. Merit was a competitor of Harmony’s. Although Turner has never been a named owner of Merit, Conkling claims that there is sufficient evidence to show that he secretly owns the company. The undisputed evidence reveals that Turner has supplied Merit with significant cash infusions and has guaranteed loans for the company with Louisiana National Bank (“LNB”), a bank on whose board of directors Turner sits. Turner has also guaranteed lines of credit and performance bonds on behalf of Merit. Although the owners of record have executed a promissory note in favor of Turner, it appears that no interest has been paid on this note since 1983 and that the principal has only been reduced by payments.
After Conkling heard rumors that Turner owned Merit, he requested that he be allowed to purchase his relative ownership interest in the company. Turner denied ownership in Merit, and Conkling never acquired an interest in the company. Conkling also asserts that Turner has used Merit to compete with Harmony, sometimes using Harmony’s confidential information to its detriment.
Gymco was a Louisiana partnership formed by the owners of Merit to purchase equipment exclusively for rental to Merit. Conkling claims that Turner also secretly owns Gymco, as evidenced by the fact that Turnеr guaranteed indebtedness of Gymco and reported certain tax effects on his income tax returns with respect to Gymco such as would signify ownership.
C. Discussions About Redemption of Conkling’s Stock
As noted above, Conkling was fired from Nichols in December of 1983, and, not surprisingly, the parties dispute the reason for his termination. After termination, the parties attempted negotiations for the purchase of Conkling’s stock in Nichols and its affiliates, but were unable to agree to a price. One year later, Conkling sent a letter to Turner offering to sell these interests for $7,000,000. Although Conkling now claims *1292 that he had a binding agreement with Turner to redeem the stock at a “fair price,” the letter made no reference to any such obligation. Turner never responded to the letter, and this lawsuit followed.
D. The Instant Litigation
In November 1985, Conkling filed suit against Turner and numerous corporations and partnerships controlled by Turner. He also sued David R. Carpenter (“Carpenter”), who served as Chief Financial Officer of Nichols and in various other capacities to the Nichols spin-off companies. Conkling alleged civil RICO violations under 18 U.S.C. §§ 1962(c) & (d). He also alleged pendent claims under Louisiana law for breach of fiduciary duty and breach of contract. His primary contention was that he was entitled to own 8.69565% of Nichols, but was defrauded out of the additional .69565% in Nichols by the 1963 agrеement. He argues that he was consequently deprived of the additional .69565% interest in several of the Nichols-affiliated companies based upon the application of the Nichols ownership ratio. Con-kling also claimed that Turner schemed to prevent Conkling from acquiring any ownership interests in several other, newly-formed companies by misrepresenting or concealing Turner’s ownership of these companies. Conkling alleged mail fraud because Turner used numerous mailings to deceive Conkling and securities fraud with respect to certain of the stock transactions.
After a protracted discovery, the defendants filed motions to dismiss and for summary judgment. A lengthy joint pre-trial order defining the issues for trial was signed by the judge on October 17, 1991, and filed on October 21, 1991 (the “pre-trial order”). Prior to trial, by order entered January 21, 1992 (the “pre-trial summary judgment”), the district court granted the defendants’ summary judgment motions in part, dismissing (i) Conkling’s RICO predicate act based upon Turner’s alleged refusal to redeem his stock in Nichols and affiliates, (ii) certain derivative claims, (iii) Conkling’s claims for wrongful discharge, denial of access to corporate records, and damages due to the corporations’ use of an unfavorable depreciation method, (iv) all claims against Carpenter, and (v) certаin miscellaneous claims not discussed in this appeal. In response to requests from both parties, the district court clarified the pre-trial summary judgment by order of February 5, 1992 (the “clarification order”), to confirm that it had “dismissed all claims which are shareholder derivative claims in nature, including any claim involving Harmony to the extent that such claim is derivative.”
The weekend before trial, the district court announced that it would sever the issues to be tried and would try only a single alleged predicate act — fraud in the 1963 agreement — with respect to Conkling’s civil RICO claims in the first phase of trial. The court also stated that the breach of contract claim would be tried in this initial phase. After Conkling presented his case, both parties moved for judgment as a matter of law; the district court granted the defendants’ motion with respect to Conkling’s breach of contract claims. The 1963 agreement issue was submitted to the jury, which found that Turner did not commit fraud in the 1963 agreement. As a result of the jury’s verdict on this issue, the district court, on April 9, 1992, entered summary judgment in favor of the defendants on the remainder of Conkling’s complaint, both under civil RICO and breach of fiduciary duty (the “post-trial summary judgment”). The instant appeal ensued.
II. Analysis
A. The Severance Order
Conkling first contends that the trial court abused its discretion in severing from his RICO case all predicate acts except for his claim that Turner defrauded him into executing the 1963 agreement. Essentially, the trial court determined that Conkling would not be able to show any pattern of racketeering activity unless he could show that the agreement he and Turner entered into in June 1963 was fraudulently induced. Thus, the trial judge deemed it appropriate to try this issue alone before proceeding to any other acts that could be predicate acts for the RICO claims. In fact, after the jury determined that Turner had not defrauded Con-kling with respect to the 1963 agreement, the *1293 court below dismissed the entire RICO case as a matter of law on the basis of this finding.
Severance is proper when a trial court determines that severance is “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition or economy.” Fed. R.Civ.P. 42(b);
see also FDIC v. Selaiden Builders, Inc.,
Tо determine whether the severance order was proper in this case, we must first evaluate the basis of the RICO claims. Section 1962(c) of Title 18 makes it unlawful “for any person employed by or associated with any enterprise engaged in ... interstate or foreign commerce to conduct or participate ... in the conduct of such enterprises affairs through a pattern of racketeering activity ...” 18 U.S.C. § 1962(c). While the RICO statute is by no means clear in many of its provisions, it does provide explicitly that there must be a “pattern” of racketeering activity and that “pattern” is defined to “require[ ]
at least two
acts of racketeering activity.” 18 U.S.C. § 1961(5) (emphasis added);
see also H.J., Inc. v. Northwestern Bell Tel. Co.,
We note at the outset that RICO cases appear to be specially suited for trial limitation. In fact, numerous trial courts have ordered separate trials on RICO claims to facilitate their resolution and simplify jury presentation.
See, e.g., Agency Holding Corp. v. Malley-Duff & Assoc., Inc.,
Conkling’s RICO case is similarly complex. In all, Conkling has alleged during the course of this litigation at least 25 predicate acts, including the derivative claims for diminution in value of Nichols and its affiliates. Ten of these were adjudicated in the pre-trial summary judgment. The trial court apparently considered the predicate acts relating to Merit, Merit Environmental, and Gymeo not to be predicate acts as a matter of law.
See
below
infra
at section II.B.3.b. The Harmony dilution claim was conceded by the parties to involve fact issues, but, as discussed above, its viability under RICO depended upon the existence of at least one other predicate act. The remaining predicate acts were dependent upon a finding of fraud in the 1963 agreement,
4
an issue which was tried to the jury and found against Con-kling. It is clear to us that the court below had a specific purpose in paring down the issues for jury resolution to the lowest common denominator. If the 1963 agreement issue were to be resolved in the defendants’ favor, the RICO case could be decided as a matter of law, thus simplifying the number of issues ultimately submitted to the jury.
See, e.g., Rossano v. Blue Plate Foods, Inc.,
Under thesе circumstances, we cannot find that the trial court acted arbitrarily in severing the 1963 agreement predicate act. Rather, the trial transcript reflects that the court was concerned with preventing the jury from being needlessly confused by the complexity of the ease, and the court’s actions were in line with this interest. The court’s concern about jury confusion was justified, considering that the case involved over twenty years of historical facts, a substantial number of witnesses, and countless theories of recovery. In fact, trial on the single issue (and the contract claim) took almost three and one-half weeks and involved numerous Federal Rule of Evidence 104 hearings outside the presence of the jury to determine the admissibility of evidence as to the numerous contested factual issues. Moreover, this court’s long-standing rule that a district court is accorded great deference on review with respect to its severance decision reflects our perception that the trial court is in the best position to determine whether bifurcation is appropriate.
The only possible prejudice Conkling could have suffered in proceeding in this manner was his inability to aggregate the allegations of fraud with respect to his multiple claims. However, as seen abоve, the RICO predicate acts remaining for trial were “dormantly dependent” upon a finding of initial fraud in the 1963 agreement, and Conkling “would have been not one whit more entitled to a verdict
*1295
[in the RICO ease] merely because lengthy additional testimony might have been taken on the separate and irrelevant issues” relating to the dependent claims.
Rossano,
Finally, and although Conkling complains that he was not given any notice of the dramatic severance until the weekend before trial, we note that he would have been in no different a position if the trial court had granted summary judgment on the RICO predicate acts severed. 5 The dependence of the spin-off predicate acts upon the 1963 agreement was fully briefed by the defendants in their motion for summary judgment, and, had the trial court found no fact issue with respect to that agreement, it would have necessarily dismissed these claims as well. Indeed, Conkling’s own “Statement of Plaintiffs’ Claims” in the pre-trial order acknowledged the dependence:
[The ownership relationship agreement between Conkling and Turner] was established on the basis of Turner owning 85 shares of Nichols and Conkling owning 10 shares.... This ownership relationship was what Turner and Conkling agreed would always determine their relative ownership in all subsequently formed entities. ... Each time Turner formed a new entity, ... Mr. Conkling was entitled to acquire his proportionate ownership relative to Turner’s. Turner later formed National Maintenance, International Maintenance, Harmony, TSMC, BTL, and TL. Each time one of these entities was formed, Turner tacitly reaffirmed ... the ownership relationship agreement with Conkling- Because Turner had reduced Mr. Conkling’s ownership interest in Nichols through the 1963 fraud, Con-kling received less of an interest in those entities than that to which he was entitled.
(emphasis added). Accordingly, once the jury decided that there was no fraud in the 1963 agreement, the vitality of these pendent claims then became a matter of law, thereby eliminating a large portion of the litigation. We hold that the district court did not abuse its discretion in staging the trial in this way.
B. The RICO Summary Judgments
Conkling next challenges the district court’s grant of summary judgment on his “agreement to repurchase” predicate act pri- or to trial and on his entire RICO ease after the jury’s verdict concluded the first phase of the bifurcated trial. With respect to the pretrial summary judgment, the trial court did not elaborate upоn the grounds for its decision. The trial court recited in its post-trial summary judgment that the jury’s finding “that the defendants were not guilty of any fraud” decided the remainder of the RICO case as a matter of law. We note the standard of review and address each contention in turn.
1. Standard of review
Summary judgment is proper if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Once a properly supported motion for summary judgment is presented, the burden shifts to the non-moving party who bears the burden of proof at trial to show with “significant probative” evidence that there exists a triable issue of fact.
In re Municipal Bond Reporting Antitrust Litig.,
2. The agreement to redeem
As one of the predicate acts in support of his RICO counts, Conkling asserts that Turner entered into an agreement with him over twenty years ago to purchase Conkling’s stock at a “fair price” in the event of termination while harboring a secret intention never to perform that agreement. He argues that the district court erroneously granted a pre-trial summary judgment on this claim when fact issues abounded.
A contract to purchase and sell securities in the future can constitute a “purchase or sale” of the securities actionable under the federal securities laws.
See Blue Chip Stamps v. Manor Drug Stores,
This court has not yet decided whether RICO affords private litigants the option of equitable remedies,
7
and our sister circuits appear to disagree on the issue.
8
However, we need not resolve this dispute today since the district court’s subsequent grant of judgment as a matter of law on Conkling’s corollary breach of contract claim,
see infra
section II.D — finding that Conkling failed to adduce sufficient evidence that there was a contract — confirmed that summary disposition of this securities fraud claim was proper.
9
The premise of this fraud claim is that Turner entered into an “oral agreement to purchase Conkling’s stock at the end of
*1297
Conkling’s employment.” It was therefore critical that Conkling establish an oral contract to “purchase” or “sell” to sustain a fraud claim under federal securities laws.
See Blue Chip Stamps,
3. The case tried and resulting post-trial RICO summary judgment
The district court specifically held that Conkling’s “claim under RICO should be dismissed since the jury found no fraud on the part of the defendants in this ease.” Implicit in this finding is a conclusion that all but one 10 of the remaining predicate acts were dependent upon fraud in the 1963 agreement. The trial court had already dismissed before trial many of the predicate acts enumerаted in Conkling’s brief as either (i) derivative claims, which Conkling did not have standing to bring, or (ii) actions that could not be RICO predicate acts as a matter of law. The court then apparently determined that the predicate acts remaining for jury resolution stemmed from the 1963 agreement 11 and adjudicated all of them as a matter of law when the jury failed to find fraud in the execution of that agreement. Conkling argues that not all of his predicate acts can be neatly pigeonholed into one of the three enumerated categories. Specifically, he challenges the district court’s resolution of the Harmony, Merit, TIL, IPS, Blast, and Treb-co transactions. In his reply brief, Conkling belatedly asserts that the use of an improper depreciation measure unfairly deflated the book values of the companies in which he retained an interest. We discuss each of these claims below.
a. Harmony
Although, as noted previously, the defendants concede a fact issue with respect to the Harmony dilution claim, that transaction standing alone could not support a RICO “pattern” — necessitating
at least two
acts of racketeering activity — under section 1961 of Title 18. 18 U.S.C. § 1961;
see also McLaughlin,
b. Merit, Merit Environmental and Gymco
The Merit Environmеntal and Gymco claims appear to be integrally related to the Merit transaction. However, neither of these transactions suffices to defeat summary judgment on the RICO case. Since Merit Environmental was a corporation wholly owned by Merit, Conkling could have no claim that he was defrauded out of any proportionate ownership in Merit Environmental unless he could prove fraud with respect to Merit. Further, although Conkling argues in a conclusory manner that he “was defrauded out of his relative ownership in Merit [], Merit Environmental, and Gymco pursuant to his ownership relationship agreement with Turner,” he does not articulate in his brief any basis for asserting the predicate act of mail fraud with respect to Gymco. In fact, the only evidence proffered by Conkling to defeat summary judgment on the Gymco “predicate act” is evidence showing a fact issue with respect to Turner’s ownership of the partnership. Conspicuously absent from Conkling’s argument is any analysis of, or *1298 even reference to, summary judgment evidence tending to prove a mail fraud in connection with Gymco. 12 In short, we have serious doubt that the Gymco transaction was ever more than an attempt to put before the jury evidence of Turner’s “other crimes” under Federal Rule of Evidence 404(b). Regardless of whether the district court treated the Gymco facts as merely Rule 404(b) evidence or as an attempted predicate act of mail fraud, it properly disposed of the claim in summary judgment.
The claims relating to Merit are more difficult. Conkling asserts in this court as below that he was “fraudulently deprived by Turner of his rightful proportionate interest in Merit.” This transaction was clearly not derivative, nor was it a direct result of the 1963 agreement. However, we do not believe it was a viable predicate act by the time of trial. The defendants pointed out that Conkling waived any claim for damages from Merit, concluding that he could introduce the evidence under Federal Rule of Evidence 404(b) as “evidence of other crimes, wrongs, or acts,” which are only admissible for limited purposes, “such as proof of motive, opportunity, [or] intent-” Fed. R.Evid. 404(b). Conkling admits that he waived any damage claim with respect to Merit but contends that he did not waive the predicate act itself. He argues that it is not necessary to demonstrate injury flowing from each predicate act, but only from some in order to show a pattern of racketeering activity.
See, e.g., Deppe v. Tripp,
MR. BECKER [Conkling’s counsel]: _ Do you remember, we talked about it. I agreed to give up the damage claim on Merit because you said it was admissible under 404(b) at the status conference.
THE COURT: I didn’t say that it was totally admissible.... [Merit] could not even be a damage claim because it wasn’t prayed for, number one. Number two, what I said was — what I said was the fact that it is not a damage claim doesn’t mean that it can[not] be used for another purpose including 404(b), but I never made a ruling that it was absolutely admissible under 404(b) at that time.
It is entirely inconsistent for Conkling to claim that the Merit evidence is admissible under Rule 404(b) and yet to argue that it constitutes a predicate act. A predicate act, by its very nature, is evidence directly bearing on an issue in the case which would not need to be screened through Rule 404(b).
Important in this regard is the fact that several documents of record reflect that the status conference referred to by Conkling’s counsel in the аbove-cited dialogue took place prior to the district court’s severance of the RICO claim. Accordingly, Conkling’s voluntary waiver of the Merit transaction as a claim under the belief that the evidence would be admitted under Rule 404(b) could *1299 not have been simply a response to the trial court’s ruling that only one predicate act would be tried.
c. TIL
Conkling also claims that the TIL predicate acts should not have been decided on summary judgment. Conkling admits that TIL is and always has been owned by Turner and his family. In fact, based upon Turner’s representations that “TIL would
solely
be an
estate planning tool
to enable Turner to hold all of his and his family’s stock in Nichols and Harmony, ... Conkling agreed that he would not be entitled to acquire his relative ownership in TIL.” Although it is undisputed that the ownership of TIL remains exclusively in Turner and his family, Conkling claims that the placement of TIL as chief operating company over Nichols and its affiliates somehow changed its nature and entitled him to ownership. A closer look at the allegations and evidence, however, shows that Conkling’s damages are based upon TIL’s profits from the management of the Nichols-related companies, which is a derivative claim. Since Conkling does not have standing to raise derivative claims on behalf of the companies in which he holds stock,
see Adams-Lundy v. Association of Professional Flight Attendants,
d. IPS, Blast, and Trebco
IPS, Blast, and Trebco were each acquired by Nichols as a wholly-owned subsidiary, and the jury’s confirmation of Conkling’s 8% interest in Nichols demonstrated that he retained relative ownership in each of these companies. Therefore, these claims were properly resolved in the post-trial summary judgment as “dormantly dependent” upon a determination of fraud in the 1963 agreement,
e. Depreciation
Although Conkling’s reply brief makes reference to the improper depreciation claim numbered as predicate act 17, we do not “consider arguments belatedly raised after appellees have filed their brief’ in the absence of manifest injustice.
Najarro v. First Fed. Sav. & Loan Ass’n,
f. In conclusion, ...
The trial court correctly perceived that the predicate acts remaining for jury resolution — with the exception of Harmony — were contingent as a matter of law upon a finding of fraud in the 1963 agreement. Accordingly, we hold that the trial court did not err in granting summary judgment to the defendants on the RICO case.
C. Breach of Fiduciary Duty
The district court determined “that there is no factual or legal basis to support [Conkling’s] breach of fiduciary claim.” Accordingly, it granted summary judgment on Conkling’s breach of fiduciary duty claim. Although Conkling’s brief on this issue is almost entirely conclusory, inappropriately incorporating briefing filed below, 14 he has *1300 arguably raised the claim on appeal, and we will employ our best efforts to review the grant of summary judgment on this claim as applied to each factual circumstance.
Turner contends that the fiduciary duty claims are based upon the same facts already found to be fatally deficient as causes of action as discussed both supra and infra. However, after careful review of the record on appeal, we have not found that Turner moved for summary judgment on all of the breach of fiduciary duty issues. 15 Specifically, Turner did not move for summary judgment in the court below on the basis that the Harmony dilution claims pled as a breach of fiduciary duty could be summarily adjudicated; rather, he argued only that Conkling did not have standing to assert Harmony claims derivatively. 16 In fact, Turner has conceded on appeal that a fact issue exists with respect to the Harmony dilution transaction. Although that claim, as noted above, was properly adjudicated in the RICO context on the basis that it was the only predicate act available to Conkling, we conclude that the conceded fact issue preserves it in the fiduciary duty context.
Similarly, Turner did not request summary disposition of the fiduciary duty claims relating to the 1963 agreement and its progeny. The summary judgment arguments and the jury issue went to whether any of the actions or omissions stemming from that agreement were fraudulent — not whether they constituted a breach of any fiduciary duty. With respect to these claims, therefore, Turner could not have met his initial summary judgment burden of pointing out an absence of any fact issues by identifying portions of the pleadings, discovery, and affidavits which support its position.
See Celotex Corp. v. Catrett,
D. Rule 50(a) Adjudication of Conkling’s Breach of Contract Claim
The district court granted judgment as a matter of law on this claim after the close of Conkling’s case, and we review its decision
de novo,
applying the same legal standard as it used.
Omnitech Int'l Inc. v. The Clorox Co.,
Article 2439 of the Louisiana Civil Code requires three circumstances to concur to confect a contract: the thing sold, the price, and mutual consent. La.Civ.Code Ann. art. 2439 (West 1952). Article 2464 requires that the price of the sale be “certain,” or, as the provision further defines it, “fixed and determined by the parties.” La.Civ.Code Ann. art. 2464 (West 1952). To sustain a cause of action for breach of an oral agreement for value in excess of $500, a party must prove its existence by at least one witness and corroborating circumstances. La.Cxv.Code Ann. art. 1846 (West 1987);
see also Dupuy v. Riley,
The court below further found that, even if it construed Conkling’s “understanding” as a binding agreement, there was no evidence to corroborate the oral agreement. Conkling responded, as he does before this court, that Louisiana law does not require that a plaintiff provide “independent proof of every detail of [his], testimony.”
Samuels,
The trial court nonetheless determined that any oral contract failed for lack of a definite price, a term which must be fixed and determined in order to create a binding contract of sale under Louisiana law. La. Civ.Code Ann. art. 2464 (“The price of sale must be certain, that is to say, fixed and determined by the parties.”);
see also Louisiana Power & Light Co. v. United Gas Pipe Line Co.,
Conkling cites to the Louisiana Supreme Court’s opinion in
Benglis Sash & Door Co. v. Leonards,
Wegman v. Central Transmission, Inc.,
Moreover, in fact-settings more akin to that presented, the Louisiana courts have found such terms as “book value,” “market rise,” and “prevailing price” not to be sufficiently ascertainable and thus fatal to the confection of a contract.
See, e.g., Directional Wireline,
Similarly, no “agreed” price for Turner to redeem Conkling’s stock can be determined with any certainty because there is no discernible agreement as to any method by which “fair value” could be computed. Conkling suggests that the Nichols’ board minutes reflecting Turner’s request for permission to negotiate a redemption price based upon the underlying assets of the corporation and his statement that he “might have to redeem” the stock of the minority shareholders is conclusive proof that the parties had previously agreed to a definite method to calculate fair value. Conkling understands these portions of the minutes as “meaning] that Turner was authorized to negotiate a price bаsed upon the value of the underlying assets of the companies, and if they could not agree on a value for the underlying assets, then an independent appraisal would be used.” He offers the original agreements between Nichols and its shareholders (including Turner and Conkling) in 1962 and 1963— which included independent appraisal clauses and certain guidelines for calculating redemption values — as providing the method by which he and Turner would compute the “fair value” of the stock. There are several problems inherent in looking to the 1962 and 1963 agreements for guidance. First, the two agreements have conflicting provisions regarding valuation.
20
Moreover, the 1962
*1304
agreement was superseded by the 1963 agreement, and, in 1966, the parties expressly voided that redemption formula as well. Finally, and most importantly, Conkling did not testify that he and Turner agreed to use any formulas set forth in these agreements, but rather that he
believed
that fair value would be calculated in his agreement with Turner as it was in the Nichols agreements. His beliefs in this regard are merely speculation and do not evidence that the parties reached a consensus as to a method by which “fair value” could be calculated. Thus, Con-kling’s argument that these agreements offer instruction for agreed redemption values is strained. In sum, we find that, in the case presented, “fair value” is “not capable of being ascertained by computation of definite facts; it can not be deemed certain in the present case.”
Sherman,
E. Subsequent Oral Modification Evidence
Conkling next takes issue with the trial court’s instruction to the jury to disregard evidence of an alleged subsequent oral agreement modifying the 1962 agreement. Conkling testified at trial that, after the written agreement was executed in 1962, Turner modified the agreement' by giving him a stock certificate and informing him that the stock was in exchange for previous services. However, the district court interrupted his testimony in this regard and instructed the jury to disregard any agreements “except for the 1962 agreement and the 1963 agreement_ The witness can testify what happened post [19]63 but not pre [19]63 regarding other agreements between the parties.” Conkling argues that the subsequent oral modification of the 1962 agreement should have been admitted and directs our attention to Article 1848 of the Louisiana Civil Code, providing that:
Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.
La.Civ.Code Ann. art. 1848 (West 1987) (emphasis added).
Conkling’s argument that the oral agreement modified the earlier, 1962 agreement misses the mark. The focus of this case is upon the written, 1963 agreement. Under Conkling’s own version of the facts, this alleged oral agreement was entered into
before
the 1963 agreement. The pertinent provision of Article 1848 limits consideration of such evidence to
“subsequent
and valid oral agreement[s]” in particular situations, in which “the interest of justice” will be best served by introducing the testimony. Similarly, the cases are legion that parol evidence may not be admitted to vary the terms of a written contract except in the above-enumerated circumstances.
Billingsley v. Bach Energy Corp.,
Moreover, the 1963 agreement— voluntarily executed by Conkling — provided that it was “the sole agreement
by and between the parties
in connection with the purchase or sale of any and all interests in and to Nichols Construction Corporation,
being substituted
for
any previous agreement or understanding, oral
or otherwise” (emphasis added). The agreement was signed by both Turner and Conkling as “parties.” The entire purpose of the 1963 agreement was to provide a mechanism whereby Conkling could acquire stock in Nichols. The plain terms of the 1963 agreement allocated
8%
of the stock outstanding to Conkling.
21
Pursuant to the 1963 agreement, the minority
*1305
sharehоlders, including Conkling, were to pay $100 for their stock, and the undisputed facts show that they paid the amount and received the certificate. Under the facts presented, the inclusion of the merger clause leads us to conclude that the clause correctly reflected the parties’ intentions and consequently precludes evidence of any alleged prior agreement.
Omnitech,
F. Claims Against Carpenter
The defendants defend the summary judgment on Conkling’s causes of action relating to Carpenter in an abundance of caution, though Conkling did not address these claims in his appellant’s brief. Conkling did respond to the defendants’ contentions about Carpenter in his reply brief; however, as noted above, this court does not, in the absence of manifest injustice, consider claims raised for the first time after the opening briefs are filed by the appellant and appellee(s).
Najarro,
III. Conclusion
For the foregoing reasons, we reverse and remand the district court’s summary adjudication of Conkling’s breach of fiduciary duty claims as described above. In all other respects, we affirm the judgment of the district court. Each party is to bear his own costs of this appeal.
AFFIRMED in part, REVERSED and REMANDED in part.
Notes
. Title IX of the Organized Crime Control Act of 1970, Pub.L. No. 91-452, 84 Stat. 922 (codified at 18 U.S.C. § 1961 et seq.).
. As noted above, both parties agree that their agreement to share proportionate ownership in Nichols' affiliates was tied to the ownership ratio of Nichols itself. Thus, if Conkling were entitled only to 8% of Nichols, he would similarly be entitled only to 8% of the affiliates, all of which he admits having received. Conversely, if he could establish that he was defrauded out of 8.69565% of Nichols, he would have a claim to an additional .69565% ownership in each of the spin-off companies.
. Although several of these cases involve criminal, rather than civil, RICO charges, we note that bifurcation is even more remarkable in criminal trials since the Federal Rules of Criminal Procedure do not have an analogue to Federal Rule of Civil Procedure 42(b).
. Conkling’s claims that he was deprived of his relative ownership — i.e., .69565%, rather thаn 8% — interests in National Maintenance, International Maintenance, TSMC, BTL, TL, Blast, Treb-co, and IPS were all dependent upon a determination that he rightfully owned .69565% of Nichols. The juiy’s finding that the 1963 agreement was valid, and the inescapable conclusion that Conkling was therefore entitled only to 8% of Nichols similarly rendered the claims for an additional 8.69565% of National and International Maintenance, TSMC, BTL, and TL fatally deficient since the relative ownership in those companies was determined by Nichols ownership ratio. Conkling admitted as much in his portion of the pre-trial order. Moreover, since Blast, Trebco, and IPS were each acquired by Nichols as a wholly-owned subsidiary, the confirmation of Conkling’s 8% interest in Nichols demonstrated that he had a corresponding relative ownership in each of these companies.
. In this regard, we observe that a district court may sever a case on its own motion.
FDIC v. Selaiden Builders, Inc.,
. In the trial court, the defendants pointed out that the "damages" Conkling seeks are actually the book value of the stock he currently owns and that Conkling himself has acknowledged that he must relinquish all of the stock if he is awarded damages on this claim.
. In
In re Fredeman Litig.,
we held that RICO did not authorize a private party to seek an injunction freezing a defendant’s assets to secure a potential judgment since that remedy was not available
outside of RICO,
and we were unwilling to extend injunctive relief solely under RICO where the legislative intent did not appear to permit it.
.
Contrast Religious Tech. Ctr. v. Wollersheim,
.This court may affirm a grant of summary judgment on any appropriate ground that was raised to the district court and upon which both parties had the opportunity to introduce evidence.
Brewer v. Wilkinson,
. As noted above, the parties agreed that there were fact issues as to whether the Harmony securities transaction could constitute a predicate act, thus precluding summary disposition of that claim, but standing аlone, it could not constitute a RICO "pattern." 18 U.S.C. § 1961(5);
see also H.J., Inc. v. Northwestern Bell Tel. Co.,
. See supra note 4.
. Indeed, none of the “183 items transmitted through the U.S. mail to [Conkling] in furtherance of defendants' scheme to defraud,” or the numerous mailings to the Louisiana Secretary of State referred to by Conkling in his brief even relates to Gymco.
. We asked the parties for additional briefing on whether Conkling had waived the Merit claims as predicate acts since the defendants had so intimated in their brief. The transcript shows that Conkling waived the Merit claim, assuming that he could admit the evidence under Rule 404(b), and reveals a series of conflicting positions taken by Conkling on this issue. Although, as acknowledged above, the sequence of events is less than clear — due largely to the fact that several critical, pre-trial conferences on this issue were unrecorded — our best reading of the record leads us to conclude that Conkling abandoned Merit as a predicate act.
. Attorneys cannot circumvent the fifty-page limit of Federal Rule of Appellate Procedure 28(g) by incorporating by reference а trial memorandum.
Walters v. First Tenn. Bank, N.A.,
. Many of the fiduciary duty claims were raised on summary judgment below. For example, Turner argued in his summary judgment papers that Conkling did not have standing to bring any of the asserted derivative claims as a matter of law, a position adopted by the district court. Moreover, and as discussed above, Conkling waived any damage claim with respect to the Merit transactions, and we interpret this waiver to include damages for breach of fiduciary duty. There is also an indication in Conkling’s Supplemental Memorandum in Opposition to Defendants’ Motions for Summary Judgment filed on December 11, 1991, that the court below
sua sponte
raised the issue of whether its decision in
Nichols Constr. Corp. v. St. Clair,
. As noted above, the Harmony transaction, like many of the others, involved both derivative сlaims and individual claims between which the district court distinguished in granting and clarifying summary judgment. The clarification order explains that the trial court specifically disposed of the Harmony derivative claims, but retained the dilution claims.
. In 1978, the Louisiana Legislature enacted a statute of frauds for securities transactions, requiring that such contracts be put into writing,
see
La.Rev.Stat.Ann. § 10:8-319 (West 1993), and thus
Dupuy v. Riley,
. The trial transcript reflects that Conkling’s counsel conceded that Conkling had no agreement to redeem his stock with any of the defendant corporations. Accordingly, the trial court summarily dismissed that claim as abandoned. His allegations were therefore limited to an oral agreement with Turner that Turner would repurchase Conkling's stock.
. See LaCiv.Code Ann. art. 1995 ("Damages are measured by the loss sustained by the obligee and the profit of which he has been deprived.”).
. For example, in the 1962 agreement, the redemption price would be calculated by a specific formula if the appraisers determined the per share value of the stock to exceed $1,000. There is no such provision in the 1963 agreement.
. As noted supra at section I.A, the ownership interests in Nichols were apportioned as follows:
Bert S. Turner 76 per cent
Carmen L. St. Clair 8 per cent
Richard L. Conkling 8 per cent
J.B. Millican 8 per cent