United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-11182
Summary Calendar
JAMIE DILLARD LAM,
Plaintiff-Counter Defendant-Appellant,
versus
THOMPSON & KNIGHT, A Texas Limited Liability Partnership,
Defendant-Counter Claimant-Appellee,
LISA FULLER, An Individual Defendant; ERIC REIS, An Individual
Defendant,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
(3:02-CV-2666)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Jamie Dillard Lam appeals the summary judgment awarded
defendants in this diversity action. Lam and some of her sisters
had retained Thompson & Knight (T&K) to represent them for an
Oklahoma action involving their father’s estate and trusts created
for their benefit at his death. Lam claimed, inter alia, that T&K
breached the contract by demanding fees not provided by their
*
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this opinion should not be published and is not precedent except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.
Engagement Agreement with T&K. It counterclaimed for its fees and
moved for summary judgment. Judgment was awarded T&K.
Lam does not appeal the summary judgment against her
malpractice claim. She contends only that, under the terms of the
Engagement Agreement, T&K could not claim fees in excess of the
retainer amount unless a corporate trustee was appointed and there
was a distribution of funds according to the trust instruments.
She contends that, because the trusts were terminated as a result
of the settlement of the Oklahoma action and a corporate trustee
was never appointed, T&K was not entitled to the claimed excess
fees.
A summary judgment is reviewed de novo. Melton v. Teachers
Ins. & Annuity Ass’n of America, 114 F.3d 557, 559 (5th Cir. 1997).
Such judgment is appropriate only if there is no genuine issue of
material fact and the movant is entitled to a judgment as a matter
of law. FED. R. CIV. P. 56(c). The nonmovant may not rest upon
mere allegations or denials in the pleadings, but must present
affirmative evidence showing the existence of a genuine issue for
trial. E.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57
(1986).
Under Texas law, “[t]he elements of a breach of contract
action are (1) the existence of a valid contract; (2) performance
or tendered performance by the plaintiff; (3) breach of the
contract by the defendant; and (4) damages sustained by the
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plaintiff as a result of the breach”. Dorsett v. Cross, 106 S.W.3d
213, 217 (Tex. App. 2003) (emphasis added). “[W]hen a contract has
been substantially performed and an attempt to complete performance
has been refused, the refusal excuses any further attempt to
perform by the party offering performance and entitles that party
to recover under the contract.” Id. at 217-18.
The affidavit of T&K’s lead attorney and the e-mail
correspondence between her and one of Lam’s sisters is competent
summary-judgment evidence that T&K secured a corporate trustee but
that the sisters had elected not to set up a trust and instead to
take the assets of the trusts outright. Lam did not respond to the
summary-judgment motion. Because the summary-judgment evidence
shows that T&K substantially performed the contract and that its
attempt to complete performance was refused, judgment for T&K was
proper.
Neither party relies on the district court’s alternative
rationale that the engagement agreement was ambiguous; therefore,
we do not consider it. Nor do we consider Lam’s newly raised claim
that the amount of fees claimed by T&K is incorrect, or the issues
raised for the first time in her reply brief. See Stephens v.
C.I.T. Group/Equip. Fin. Inc., 955 F.2d 1023, 1076 (5th Cir. 1992);
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). We MODIFY
the second amended final judgment to reflect that the dismissal of
Appellants Lisa Fuller and Eric Reis is WITHOUT PREJUDICE; those
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defendants were named in an amended complaint but never served with
process. See FED. R. CIV. P. 4(m); Nagle v. Lee, 807 F.2d 435, 438
(5th Cir. 1987); see also Southmark Corp. v. Life Investors, Inc.,
851 F.2d 763, 774 (5th Cir. 1988).
AFFIRMED AS MODIFIED
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