* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

July 21, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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: *

Jam ie 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, i nter alia

, that T&K

breached the contract by demanding fees not provided by their2

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 distribut ion 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 la w. F E D

. R. C IV

. 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 b reach 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 the3

plaintiff as a result of the breach”. D orsett 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 b een 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 i s 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 t hat T&K substantially performed the contract and that its

attempt to complete performance was refused, judgment for T&K was

proper.

Neith e r 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. S ee 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 ; those4

defendants were named in an amended complaint but never served with

process. S ee F ED

. R. C IV

. 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