539 F.2d 393
STANLEY EDUCATIONAL METHODS, INC., Plaintiff-Appellant,
The BECKER CPA REVIEW COURSE, INC., Defendant-Appellee.
United States Court of Appeals,
Sept. 22, 1976.
E. Charles Bedsole, G. Brockett Irwin, Dallas, Tex., for plaintiff-appellant.
J. T. Vaughan, Jr., A. E. Aikman, Dallas, Tex., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Texas.
ON PETITION FOR REHEARING
(Opinion July 30, 1976, 5th Cir. 1976, 536 F.2d 86)
Before DYER and CLARK, Circuit Judges, and KRAFT*, District Judge.
On petition for rehearing, Stanley's substitute counsel argues that the case should be decided under the theory of promissory estoppel. See Wheeler v. White, 398 S.W.2d 93 (Tex.1965). This theory was not properly presented to the trial court for application to the facts, nor was it presented to this court until the unauthorized filing of substitute counsel's supplemental brief. Under these circumstances, we ordinarily would not consider the new argument at the appellate level. However, we have examined the authorities cited in Stanley's petition, especially Associated Tabulating Services, Inc. v. Olympic Life Insurance Co., 414 F.2d 1306 (5th Cir. 1969), and have found nothing in them to disturb our original conclusion that the actions of Becker were not undertaken with the intent to induce reliance on them by Stanley, without which promissory estoppel is no more applicable than equitable estoppel.
The petition for rehearing is
Senior District Judge of the Eastern District of Pennsylvania, sitting by designation