* District Judge of the Eastern District of Louisiana,

sitting by designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 93-1423.

BANC ONE CAPITAL PARTNERS CORPORATION, et al., PlaintiffsAppellants, Cross-Appellants,

v.

Richard K. KNEIPPER and Jones, Day, Reavis & Pogue, DefendantsAppellees, Cross-Appellants.

Nov. 3, 1995.

Appeals from the United States District Court For the Northern

District of Texas.

Before S MITH and EMILIO M. GARZA, Circuit Judges, and BERRIGAN,

District Judge. *

EMILIO M. GARZA, Circuit Judge:

A group of disgruntled investors filed this suit for

securities fraud arising out of the defendants' failed efforts to

successfully capitalize FilmDallas, Inc. ("FilmDallas"), a

Dallas-based movie pr oduction company. After a five-week trial,

the jury returned a verdict against the plaintiff investors on

their federal and Texas state securities fraud claims, but in favor

of the plaintiffs on their claim of civ il conspiracy. The jury

also found that two of the investors were in pari delicto with the

defendants.

The dis trict court disregarded the jury's civil conspiracy

verdict and entered a "take nothing" judgment in favor of the

defendants, reasoning that there was no "wrongdoing" upon which a1 Grogg was named as a defendant in the original complaint,

but the plaintiffs later voluntarily dismissed him from the suit.

While evidence of Grogg's involvement in the alleged fraudulent

activity was presented at trial, the only two defendants in this

case are Kneipper and Jones Day.

2 finding of civil conspiracy could be based. The plaintiffs appeal

from this judgment and from the district court's grant of summary

judgment on their claims fo r professional negligence and legal

malpractice. The defendants appeal from the district court's

denial of their summary judgment motion in which they asserted the

defense of res judicata. We reverse in part, affirm in part and

remand for new trial.

I

The defendant Richard K. Kneipper was chairman of the Board of

Directors and an officer in FilmDallas when the private offering of

securities in FilmDallas was made . He was also a partner in the

defendant law firm Jones, Day, Reavis & Pogue ("Jones Day"), which

served as counsel to FilmDallas for the offering.

Kneipper and Sam Grogg, 1 a film industry veteran, had formed

FilmDallas in 1986 to participate in a joint enterprise agreement

with New World Company Pictures, Inc. ("New World"), an independent

film producer and distributor. FilmDallas and New World together

would own FilmDallas Pictures, Inc. ("FilmDallas Pictures"), which

was to produce and distribute films and would be managed by

FilmDallas. Under the joint venture agreement, FilmDallas and New

World were each required to contribute to the capitalization of the

venture.

Because the resources of Kneipper and Grogg fell short of the3

needed contribution, th e y decided to fund FilmDallas' portion

through the private offering in FilmDallas. Kneipper and Jones Day

prepared a private offering memorandum which detailed the proposal.

According to the terms of that memora ndum, the proposed offering

was on an "all or none" basis: if a minimum of $7.5 million was

not raised and deposited in escrow by Decembe r 15, 1986, all the

money would be returned to the investors.

MVenture/Banc One was the first plaintiff to invest when its

board approved a $1 million investment in November 1986, based on

a draft of the private offering memorandum. By December,

FilmDallas Pictures was already up and operating on loans from New

World and contributions from Kneipper and Grogg. At this point,

the pr ivate offering had not received the required $7.5 million

commitment, and Kneipper and Grogg were forced to negotiate an

extension on the deadline set forth in the private offering

memorandum and an extension on the joint venture deadline with New

World.

In early 19 87, the plaintiffs C.A. Rundell, William R.

Johnson, James A. Bancroft and Thomas and Luanne Tiern ey also

agreed to invest. FilmDallas, however, was still far short of the

mark required under the terms of the private offering memorandum.

Kneipper was pursuing a $1.2 mill ion investment from a Swiss

investor, Geoffrey Jurick, who owned an office building in Dallas,

but by early March 1987 there was still no final agreement. After

consenting to a series of extensions, the investors event ually

i ssued an ultimatum that they would withdraw unless the offer ing4

was by March 18, 1987.

The claims of fraud and conspiracy are based on Kneipper and

Grogg's responses to the concerns of the investors during the early

mon ths of 1987. The gist of the fraud was defendants' alleged

failure to disclose material information at the time it became

known to them. The substance and significance of the information

was not seriously disputed at trial. Instead, the trial focused on

when the information b ecame known to the defendants. The

plaintiffs claimed that the misrepresentations and omissions

occurred at a time when they could have withdraw n their

investments, while the defendants contended that the information

became known at a later date whe n they no longer owed a duty to

disclose.

The first material misrepresentation involved defendants'

failure to disclose a rent escrow agreement on Jurick's Dallas

property, which effectively reduced his net contribution by

approximately $500,000. The second involved multiple

representations made in order to induce the investors to agree to

lower the private offering minimum to $7 million. For example,

Kneipper and Grogg represented that N ew World, out of enthusiasm

for the joint venture, had agreed to invest up to $500,000 in the

FilmDallas private offering, in addition to i ts one-half

contribution to FilmDallas Pictures. In actuality, New World

required the two of them to personally sign a repurchase agreement2 The rent escrow agreement between FilmDallas and Jurick was

finalized in writing on April, 10, 1987. The written agreement

by Kneipper and Grogg to repurchase the New World stock was dated

May 8, 1987. Plaintiffs alleged, however, that these agreements

were in fact reached well in advance of the writings.

3 One of the elements of a securities fraud claim is a

material misrepresentation or omission by the defendant.

Stephenson v. Paine, Webber, Jackson & Curtis, Inc., 839 F.2d

1095 (5th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102

L.Ed.2d 328 (1988); Gant v. State, 814 S.W.2d 444

(Tex.App.—Austin 1991, no writ). In a Section 10(b) claim, "[A]n

omitted fact is material if there is a substantial likelihood

that a reasonable shareholder would consider it important in

deciding how to vote." TSC Industries, Inc. v. Northway, Inc.,

5 for the FilmDallas stock. 2

After FilmDallas represented to the investors that final

commitments fo r the $7 million had been reached as of March 18,

1987, the "closing" or "pre-closing," as it was variously referred

to at trial, took place t hat day in a meeting at the offices of

Jones Day. In connection with the closing, Jones Day issued an

opinion letter stating that all of FilmDallas' material contracts

and agreements had been disclosed. On April 21, 1987, all of the

signed subscriptions had been received and the escrow agent finally

released the funds. FilmDallas subsequently failed, and the

plaintiffs lost their entire investment.

II

The investors contend that the charge given to the jury on

the securities fraud claims was defective in several respects. We

address the one contention that is central to the dispute at trial

regarding when information became known to the FilmDallas officers.

The investors assert that the district court erred by giving an

incorrect instruction on "materiality" 3 in the context of an "all426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed. 757, 766 (1976).

The issue of whether a fact is material as a matter of law will

also turn on, as discussed below, whether the defendant has a

duty to disclose.

6 or nothing" offering of securities.

While great latitude is shown the trial court in fashioning

j ury instructions, we will review them to determine whether they

accurately and completely state the l aw. "[A] trial court has a

duty to instruct the jurors, fully and correctly, on the applicable

law of the case." H orton v. Buhrke, 926 F.2d 456, 460 (5th

Cir.1991); s ee a lso EEOC v. Manville Sales Corp., 27 F.3d 1089,

1096 (5th Cir.1994) (upholding charge only if it does not mislead,

prejudice, or confuse jury), cert. denied,

--- U.S. ----, 115 S.Ct.

1252, 131 L.Ed.2d 133 (1995); F DIC v. Wheat, 970 F.2d 124, 130

(5th Cir.1992) ("Appellate review looks to whether the instruction

accurately states the law, and does not mislead the jury.").

The district court gave the following instruction on

"materiality" in conjunction with the federal and Texas state

securities fraud claims:

For each plaintiff, the date on which the materiality of a

fact is to be determined is the date when that plaintiff

committed to purchase his FilmDallas securities. Materiality

is not determined as of any later date, such as, for example,

the formal closing date. To determine whether a violation

occurred, you are to look at the date or dates when each

plaintiff committed himself to invest in FilmD allas. After

such date, disclosure of later-learned information is not

required, becau se the investment decision has already been

made.

This instruction was derived from Radiation Dynamics, Inc. v.4 See id. at 890 (" "Commitment' is a simple and direct way

of designating the point at which, in the classical contractual

sense there was a meeting of the minds of the parties; it marks

the point at which the parties obligated themselves to perform

what they had agreed to perform even if the formal performance of

their agreement is to be after a lapse of time.").

5 Rule 10b-9(a) under the Securities and Exchange Act

provides:

(a) It shall constitute a manipulative or

7 Goldmuntz, 464 F.2d 876 (2d Cir.1972). 4 The investors contend that

this instruction is erroneous in the context of an "all or none"

securities offering because it does not acknowledge that their

"commitment" was contingent in nature.

We have previously examined the issue of an ongoing duty to

disclose in the context of a contingent commitment. See Stier v.

Smith, 473 F.2d 1205 (5th Cir.1973). The plaintiff investor in

Stier had made the negotiation of his check tendered for payment of

the stock contingent on t he defendant making a successful public

offering. Id. at 1209. The plaintiff claimed the defendant owed

a continuing duty to disclose material information concerning the

public offering until it was completed. We agreed, holding that

whether or not the sale was finalized with the tender was

irrelevant where the sale was subject to the condition that the

public offering occur and the defendant knew the plaintiff was

relying on the success of the public offering. Id. at 1209-10.

An "all or none" offering in volves a similarly contingent

commitment by the investor. If the offering minimum is not raised

and deposited in escrow by a given date, all the money previously

"committed" will be returned to the investors. 5 This type ofdeception device or contrivance, as used in section

10(b) of the Act, for any person, directly or

indirectly, in connection with the offer or sale of any

security, to make any representation:

(1) To the effect that the security is being

offered or sold on an "all or none" basis, unless the

security is part of an offering or distribution being

made on the condition that all or a specified amount of

the consideration paid for such security will be

promptly refunded to the purchaser unless (i) all of

the securities being offered are sold at a specified

price within a specified time, and (ii) the total

amount due to the seller is received by him by a

specified date; or

(2) To the effect that the security is being

offered or sold on any other basis whereby all or part

of the consideration paid for any such security will be

refunded to the purchaser if all or some of the

securities are not sold, unless the security is part of

an offering or distribution being made on the condition

that all or a specified part of the consideration paid

for such security will be promptly refunded to the

purchaser unless (i) a specified number of units of the

security are sold at a specified price within a

specified time, and (ii) the total amount due to the

seller is received by him by a specified date.

17 C.F.R. § 240.10b-9(a).

8 offering was designed to protect the investor in a number of ways.

"The all-or-nothing provision serves not only to ensure that the

issuing firm has sufficient funds to complete its project, but also

to give investors some reasonable indication that they are paying

a fair ma rket price for their investment." S valberg v. SEC, 876

F.2d 181, 183 (D.C.Cir.1989). The sellers cannot avoid the

requirements of this provision by fraudulently creati ng the

impression that the minimum has been met. See C.E. Carlson, Inc.

v. SEC, 859 F.2d 1429, 1434 (10th Cir.1988) ("Once the part or none

representation has been made, it may not be circumvented by6 See also SEC v. Coven, 581 F.2d 1020, 1028-29 (2d Cir.1978)

(holding that the failure to comply with terms of escrow

agreement and the closing prior to the bona fide sale of the

minimum number of shares plainly operated as a fraud upon the

public); A.J. White & Co. v. SEC, 556 F.2d 619, 622-23 (1st

Cir.) (holding that it was fraudulent where the minimum amount

was raised through short-term bank loans rather than bona fide

sales to investors), cert. denied, 434 U.S. 969, 98 S.Ct. 516, 54

L.Ed.2d 457 (1977).

9 transactions primarily designed to create the appearance of a

successful offering in order to avoid the refund feature of the

offering."). 6

Therefore, relying on Stier, we hold that the seller in an

"all or none" offering does have a continuing duty to inform

investors of facts which affect contingent events after their

initial commitment to invest. S ee Stier, 473 F.2d at 1209

(investors should have been informed that corporation was using

part of the proceeds of the "public offering" to purchase its own

shares); s ee also SEC v. National Student Marketing Corp., 457

F.Supp. 682, 704 (D.D.C.1978) ("It is not some magical incantation

of "commitment' that sets the point at which disclosure is no

longer mandated, but rather the nature of the commitment."). As

applied to the all or none offering by FilmDallas, the district

court's materiality charge given on the federal and state

securities claims was erroneous.

This error, however, does not require retrial if, based on

the entire record, the challenged instruction could n ot have

affected the outcome of the case. FDIC v. Mijalis, 15 F.3d 1314,

1318 (5th Cir.1994). Reversal is appropriate whenever the charge

"as a whol e leaves us with substantial and ineradicable doubt7 The investors allege two additional claims of error. They

contend that the district court committed plain error in its jury

charge by inserting a requirement of privity into the claim of

aider and abetter liability under Texas law. They also contend

that the court erred by omitting their requested instruction on

control person liability. Because we have already determined

that the erroneous instruction on "materiality" requires that we

remand the securities fraud claims for a new trial, we do not

need to reach these issues.

10 whether the jury has been properly guided in its delibera tions."

Bender v. Brumley, 1 F.3d 271 , 276 (5th Cir.1993); B ommarito v.

Penrod Drilling Corp., 929 F.2d 186, 189 (5th Cir.1991); T readaway

v. Society Anonyme Louis-Dreyfus, 894 F.2d 161, 167-68 (5th

Cir.1990).

In this cas e, the erroneous materiality charge allowed the

defendants to argue that the investors had made their "commitments

to purchase" well prior to the closing date and breaking of escrow.

For example, the jury would have had to conclude that MVenture/Banc

One made its commitment to purchase when the board approved the

investment in November 1986. Therefore, because of the

instruction, even if the jury believed the allegations of

misrepresentations and omissions in early 1987 regarding whether

the offering minimum had been reached, they would have been forced

to disregard this evidence as immaterial. According to the jury

charge, the defendants had no ongoing duty to inform the investors

once they made their "commitment to purchase." For these reasons,

we believe that there is a substantial and ineradicable doubt

whether the jury has been properly guid ed in its deliberations.

Because it could have affected the outcome of the case, we remand

for new trial. 711 III

The investors also conten d that the district court erred by

disregarding the jury's verdict in favor of plaintiffs on the claim

of civil conspiracy because of the findings in favor of the

defendants on the "substantive" federal and state securities

claims. The investors assert that the district court erred as a

matter of law, as there was substantial evidence to support the

jury's finding on the civil conspiracy claim.

The district court charged the jury on ci vil conspiracy as

follows:

Plaintiffs' next claim is that the defendants conspired

to violate the law at plaintiffs' expense. In order to find

that the defendants engaged in a civil conspiracy with respect

to conduct surrounding the FilmDallas, Inc. securities

offering, a Plaintiff must prove by a preponderance of the

evidence that:

(1) two or more persons;

(2) had an object to be accomplished;

(3) that there was a meeting of the minds on the subject

or course of action;

(4) that there was one or more unlawful acts; and

(5) that the Plaintiff was damaged as a proximate result

thereof.

These elements have been recognized by this Court and the Texas

Supreme Court. See Meineke Discount Mufflers v. Jaynes, 999 F.2d

120, 125 (5 th Cir.1993); M assey v. Armco Steel Co., 652 S.W.2d

932, 934 (Tex.1983); see also Bernstein v. Portland Sav. & Loan,

850 S.W.2d 694, 705 (Tex.App.—Corpus Christi 1993, no writ); T imes

Her ald Printing v. A.H. Belo Corp., 820 S.W.2d 206, 216

(Tex.App.—Houston [14th Dist.] 1991, no writ).8 Rule 50(a) states:

If during a trial by jury 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, the court may determine the

issue against that party and may grant a motion for

judgment as a matter of law against that party with

respect to a claim or defense that cannot under the

controlling law be maintained or defeated without a

favorable finding on that issue.

Fed.R.Civ.P. 50(a).

12 Under Texas law, civil conspiracy is defined as a combination

of two or more persons to accomplish an unlawful pu rpose or to

accomplish a lawful purpose by unlawful means. F enslage v.

Dawkins, 629 F.2d 1107, 1110 (5th Cir.1980); T riplex

Communications, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex.1995);

Great National Life Insurance Co. v. Chapa, 377 S.W.2d 632, 635

(Tex.1964). In order for liability to attach, "there must be an

unlawful, overt act in furtherance of the conspiracy." M assey, 652

S.W.2d at 934 (holding that plaintiff did not state a cause of

action for civil conspiracy where none of the overt acts alleged

were unlawful); International Bankers Life Ins. v. Holloway, 368

S.W.2d 567, 581 (Tex.1963) (civil conspiracy "consists of a cts

which wou ld have been actionable against the conspirators

individually").

In its Final Judgment, the district court entered a "take

nothing" judgment 8 against the investors on the grounds that:

[I]n order for a finding of civil conspiracy to be properly

supported, a defendant must have been found liable for an

unlawful act separate and independent from a conspiracy. The

jury specifically found that neither Jones, Day nor Richard K.

Kneipper committed securities fraud under either the federal9 See also Metzger v. Sebek, 892 S.W.2d 20, 44

(Tex.App.—Houston [1st Dist.] 1994, writ denied) (directed

verdict against plaintiff proper where record does not reflect

any unlawful, overt acts in furtherance of the conspiracy).

10 The requirement that plaintiff plead and prove one or more

unlawful, overt acts also follows from the fact that "the gist of

a civil conspiracy is the damage resulting from commission of a

wrong which injures another, and not the conspiracy itself."

13 or state securit ies laws. There was therefore no "unlawful

act" that could suppo rt a finding of civil conspiracy, and

defendants are therefore entitled to judgment....

Inasmuch as the district court's judgment may reflect a belief that

a finding of civil conspiracy is dependent on a separate finding of

liability on a substantive count, the court was in error. A

finding of c ivil conspiracy does require, however, that the

plaintiff be able to plead and prove "one or more wrongful, overt

acts" in furtherance of the conspiracy that would have been

actiona ble against the conspirators individually. M assey, 652

S.W.2d at 934; S elig v. BMW of North America, Inc., 832 S.W.2d 95

(Tex.App.—Houston [14th Dist.] 1992, writ dism'd w.o.j.). 9

Therefore, even if the plaintiff does not bring a separate cause of

action for the underlying wrongful conduct, he must be able to

prove the elements of the wrongful conduct. S ee Selig, 832 S.W.2d

at 95 (civil conspiracy claim precluded where plaintiffs were

collaterally estopped fro m relitigating central issue of false

testimony); K ale v. Palmer, 791 S.W.2d 628, 633 (Tex.App.—Beaumont

1990, writ denied) (holding that civil conspiracy claim did not lie

w here plaintiffs had failed to plead special damages as required

under Texas law in an action for defamation based on oral

statements). 10Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435

S.W.2d 854, 856 (Tex.1968); accord Ross v. Arkwright Mutual Ins.

Co., 892 S.W.2d 119, 132 (Tex.App.—Houston [14th Dist.] 1994, no

writ); Nautical Landings Marina v. First Nat'l, 791 S.W.2d 293,

299-300 (Tex.App.—Corpus Christi 1990, writ denied); see also

Weakly v. East, 900 S.W.2d 755, 759 (Tex.App.—Corpus Christi

1995, no writ) ("A civil conspiracy requires ... one or more

overt, unlawful acts committed in furtherance of the conspiracy

which results in damages."); Adolph Coors Co. v. Rodriguez, 780

S.W.2d 477, 487 (Tex.App.—Corpus Christi 1989, writ denied)

(civil conspiracy judgment reversed where "neither party to the

alleged agreement took any unlawful, overt acts against [the

plaintiff] causing damages as a proximate result").

11 Although the investors requested instructions on statutory

and common law fraud, neither of these issues was submitted to

the jury.

14 In this case, the only "unlawful acts" submitted for the

jury's consideration were the federal and Texas state securities

fraud claims. 11 There is simply no evidence in the record that any

other unlawful acts were pleaded and proven at trial. Therefore,

if the jury had been properly charged with the securities fraud

claims, the district court would have been co rrect in concluding

that there was no basis for sustaining the civil conspiracy verdict

in light of the jury's finding against the investors on these

claims. However, because we have determined that the jury

instruction on "materiality" was erroneous, w e also remand the

investors' civil conspiracy claim. If properly instructed on the

securities fraud claims upon retrial, the jury may find that there

was a securities law violation and thereb y provide the necessary

basis for sustaining a new civil conspiracy verdict.

In addition, we believe that the jury instruction on civil

conspiracy was defective because it is overly broad. "[A] general

jury verdict [is] valid [only] so long as it was legally12 Turnage v. General Elec. Co., 953 F.2d 206, 212 (5th

Cir.1992); see also Barton's Disposal Serv., Inc. v. Tiger

Corp., 886 F.2d 1430, 1436-37 (5th Cir.1989) (reversing charge

that did not present critical issue of fact to the jury, even

though verdict implied legally sufficient alternate findings).

13 See Horton, 926 F.2d at 461 (reversing charge that

confused several theories of recovery); Bode v. Pan Am. World

Airways, Inc., 786 F.2d 669, 672 (5th Cir.1986) (reversing charge

that "did not adequately inform the jury of the [pertinent state]

law").

14 See Gibraltar Sav. v. LDBrinkman Corp., 860 F.2d 1275,

1299-1300 (5th Cir.1988) (rejecting request to uphold verdict if

it was "a logical and probable decision on the issue as

submitted," because court could not say "that the jury was

clearly not misled"), cert. denied, 490 U.S. 1091, 109 S.Ct.

2432, 104 L.Ed.2d 988 (1989); see also In re Air Crash Disaster

at New Orleans, 795 F.2d 1230, 1235-36 (5th Cir.1986) (reversing

charge that "masked" extent to which jury made permissible or

impermissible findings).

15 Tex-Goober Co. v. Los Angeles Nut House, Inc., 803 F.2d

1358, 1362 (5th Cir.1986).

15 supportable on one of the submitted grounds." G riffin v. United

States, 502 U.S. 46, 49, 112 S.Ct. 466, 469, 116 L.Ed.2d 371 (1991)

(emphasis added). Thus, we have reversed and granted a new trial

when the charge "failed to present [a] critical issue," 12

incorrectly explained the applicable law, 13 allowed the jury to make

findings on issues outside those on which pretrial order and charge

allowed proof, 14 or failed to resolve a critical underlying question

of fact. 15 In each of these cases, we concluded that the charge as

a whole was "insufficient to resolve the remaining factual issues."

Tex-Goober Co. v. Los Angeles Nut House, Inc., 803 F.2d 1358, 1362

(5th Cir.1986).

This case suffers the same flaws for which we have reversed

and granted new trials. The civil conspiracy instruction fails to16 "We afford trial judges wide latitude in fashioning jury

instructions and ignore technical imperfections," Bender v.

Brumley, 1 F.3d 271, 276 (5th Cir.1993); accord P & L

Contractors, Inc. v. American Norit Co., 5 F.3d 133, 137-38 (5th

Cir.1993), and, as an appellate court, we review the

effectiveness of the trial court's charge for abuse of discretion

only. Barton's Disposal Serv., Inc., 886 F.2d at 1435; cf. P &

L Contractors, Inc., 5 F.3d at 138 ("The district court is in the

best position to analyze the jury's intentions and thus is

charged, in the first instance, with the obligation of giving

effect to those intentions in light of the surrounding

circumstances." (emphasis added)).

Indeed, because the defendants objected to the

overbreadth of the instruction for its failure to define

"unlawful acts," even the district court may not have had

the authority to make a finding on that issue. See MBank

Fort Worth v. Trans Meridian, Inc., 820 F.2d 716, 723-24

(5th Cir.1987) (allowing court to make finding under Rule

49(a) only if submission of issue to jury not requested);

Taherzadeh v. Clements, 781 F.2d 1093, 1098 (5th Cir.1986)

("If objection is made for failure to submit an issue, the

district judge has no authority to make an express finding

under Rule 49(a) concerning that same issue.").

16 limit the jury solely to "unlawfu l acts" pleaded, proven and

submitted—the federal and state securities violations. Other than

defining the securities violations, the charge failed to define any

other unlawful acts. Accordingly, the jury was left without a

definition of "unlawful acts" and may have based their civil

conspiracy finding on acts with which they disagreed, whether

unlawful or not. Even if we were to conclude that the evidence is

sufficient to sustain a correct charge of securities fraud, as an

appellate court we cannot supply the missing jury findings on these

claims. 16 For these reasons, we believe that there is a "

"substantial and ineradicable doubt whether the jury has been

properly guided in its deliberations' " on this issue as well.

F.D.I. C. v. Mijalis, 15 F.3d 1314, 1318 (5th Cir.1994) (quoting17 This common law defense "derives from the Latin, in pari

delicto potior est conditio defendentis: "In a case of equal or

mutual fault ... the position of the [defending] party ... is the

better one.' " Bateman Eichler, Hill Richards, Inc. v. Berner,

472 U.S. 299, 306, 105 S.Ct. 2622, 2626, 86 L.Ed.2d 215 (1985)

(quoting Black's Law Dictionary 711 (5th ed. 1979)).

18 The district court gave the following instruction on the

in pari delicto defense:

" In pari delicto " means "in equal fault." A plaintiff

is in pari delicto where, as a direct result of his own

actions, the plaintiff bears at least substantially

equal responsibility for the wrongdoing for which he

now seeks damages. A party is also in pari delicto

where he is an active participant in a fraudulent or

deceptive scheme or an illegal contract.

The investors objected to this instruction at trial on the

grounds that it did not require that the plaintiff have

participated in the frauds about which they complained.

17 Bender v. Brumley, 1 F.3d 271, 276-77 (5th Cir.1993)); a ccord

Bommarito v. Penrod Drilling Corp., 9 29 F.2d 186, 189 (5th

Cir.1991).

IV

The inv estors MVenture/Banc One and Rundell challenge the

sufficiency of the evidence to sustain the jury's finding that they

were in pari delicto 17 with the defe ndants. T homas v. HoffmanLaRoche, Inc., 949 F.2d 806 (5th Cir.), cert. denied, 504 U.S. 956,

112 S.Ct. 2304, 119 L.Ed.2d 226 (1992); B oeing Co. v. Shipman, 411

F.2d 365 (5th Cir.1969) (en banc) (applying a substantial evidence

test). The jury answered "yes" to Question No. 7, "Have the

defendants proved by a pr eponderance of the evidence that the

plaintiffs [MVenture/Banc One and Rundell] were in pari delicto in

connection wi th any alleged wrongdoing for which plaintiffs seek

damages?" 1818

The Supreme Court has held that the in pari delicto defense

may operate as a bar to private causes of action for damages under

the federal securities laws. B ateman Eichler, Hill Richards, Inc.

v. Berner, 472 U.S. 299, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985).

The Court held that an action "may be barred on the grounds of the

plaintiff's own culpability only where (1) as a direct result of

his own actions, the plaintiff bears at least substantially equal

responsibility for the violations he seeks to redress, and (2)

preclusion of suit would not significantly interfere with the

effective enforcement of the securities laws and protection of the

investing public." I d. at 310-11, 105 S.Ct. at 2629. The B ateman

Eichler test requires that the plaintiff "be an active, voluntary

participant in the unlawful activity that is the subject of the

suit." P inte r v. Dahl, 486 U.S. 622, 636, 108 S.Ct. 2063, 2072,

100 L.Ed.2d 658 (1988).

The test under Texas law for determining whether the in pari

delicto defense applies does not appear to be contrary. S ee Lewis

v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1947) (stating that the

rule's application is a matter of public policy). One test relied

on by Texas courts "is whether the plaintiff requires any aid from

the illegal transaction to establish his case." I d. 199 S.W.2d at

151; s ee also Plumlee v. Paddock, 832 S.W.2d 757, 759

(Tex.App.—Fort Wo rth 1992, writ denied) ("[C]ourts have required

parties who wish to recover on an illegal contract prove their case

without reliance on their own illegal act."). "[I]n determining

whether plaintiff requires aid fr om the illegal transaction to19 We also believe that there is a risk in this case that the

jury was misled by the last part of the district court's in pari

delicto instruction: "A party is also in pari delicto where he

19 establish his case," it is "necessary to bear in mind the rule that

if a party ca n show a complete cause of action without being

obliged to prove his own illegal act, although said illegal act may

appear incidentally and may be import ant in explanation of other

facts in the case, he may recover." N orman v. B.V. Christie & Co.,

363 S.W.2d 175, 177-78 (Tex.Civ.App

. —Houston 1962, writ ref'd

n.r.e.).

Upon review of the record, we cannot conclude that the

evidence, if viewed in the light most favorable to the defendants,

would be insufficient as a matter of law to sustain a jury finding

of in pari delicto. Nevertheless, because we find that the

district court's erroneous jury charge on the substantive counts of

securities fraud and civil conspiracy mandates that we remand these

issues for retrial, we must also remand the issue of whether

MVenture/Banc One and Rundell were in pari delicto with the

defendants in this ca se. The defense of i n pari delicto clearly

requires that the jury be properly instructed on the scope of the

underlying illegal actions be ing alleged before it can determine

whether the two investors bear "a t least substantially equal

responsibility" for the illegal actions, or whether the investors

can prove the cause of action without also having to prove their

own illegal acts. It is not enough for the jury to conclude that

the investors were active participants in some wrongdoing with the

defendan ts. 19 Rather, the wrongdoing must be the same wrongdoingis an active participant in a fraudulent or deceptive scheme or

an illegal contract." On the basis of this instruction, the jury

may have improperly considered evidence that subsequent to the

offering the two investors participated in the sale of interim

notes and percentages of FilmDallas when they had knowledge about

the allegedly fraudulent activity. Unless these subsequent

activities were a part of the underlying illegal activity, or

were a necessary part of the two investors' proof, they were not

relevant to a finding of in pari delicto.

20 for which the investors are seeking to recover damages. Therefore,

the jury instructions on this issue as a whole failed to adequately

guide the jury in their deliberations. S ee, e.g., Stine v.

Marathon Oil Co., 976 F.2d 254, 261 (5th Cir.1992) (reversing and

remanding for new trial with proper jury instructions).

V

Finally, we must address appeals from two separate motions for

summary judgment. The investors appeal the district court's grant

of summary judgment in favor of defendants Kneipper and Jones Day

on the issue of professional negligence and legal malpractice. The

defendants appeal the district court's denial of their motion for

summary judgment asserting the defense of res judicata.

This court reviews summary judgment de novo. Alexander v.

U.S., 44 F.3d 328, 330 (5th Cir.1995); Ackerman v. F.D.I.C., 973

F.2d 1221, 1223 (5th Cir.1992). We review a district court's grant

of summary judgment by applying the same standard employed by the

district court in ruling on the motion. A lexander, 44 F.3d at 330;

Samaad v. City of Dallas, 940 F.2d 925, 937 (5th Cir.1991). A

summary judgment is appropriate when no genuine issue of material

fact exists and the moving party is entitled to judgment as a

matter of law. F E D .R.C IV .P. 56; C elotex Corp. v. Catrett, 477 U.S.21

317, 323-25, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986). In

determining whether a genuine issue of material fact exists, the

evidence and inferences must be viewed in the light most favorable

to the nonmoving party. T aylor v. Gregg, 36 F.3d 453, 455 (5th

Cir.1994). The dispute about a material fact is "genuine" if the

evidence could lead a reasonable jury to find for the nonmoving

party. A nderson v. Liberty Lobby, I nc., 477 U.S. 242, 248, 106

S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

A

The investors make two general assertions in support of their

professional negligence and legal malpractice claims against

Kneipper and Jones Day. First, the investors argue that Jones Day,

and Kneipper as a partner of the law firm, entered into a "limited"

attorney-cl ient relationship with the investors by agreeing to

represent them for the purpose of issuing an opinion letter in

connection with the FilmDallas securities offering. Alternatively,

the investors claim that Jones Day and/or Kneipper had a duty to

advise them that their interests were not being represented in a

situation where they were reasonably led to believe otherwise.

In order to establish liability for professional negligence

or legal malpractice, the investors must show the existence of a

duty owed to them by Jones Day and/or Kneippe r, a breach of that

duty, and damages arising from the breach. Y aklin v. Glusing,

Sharpe & Krueger, 8 75 S.W.2d 380, 383 (Tex.App.—Corpus Christi

1994, no writ). Under Texas law, there is no attorney-client

relationship absent a showing of privity of contract, and an20 See also Dickey v. Jansen, 731 S.W.2d 581, 582

(Tex.App.—Houston [1st Dist.] 1987, writ ref'd n.r.e.)

(concluding that testamentary beneficiaries could not maintain a

cause of action against attorney who negligently drafted will due

to lack of privity); F.D.I.C. v. Howse, 802 F.Supp. at 1563

(finding that a lack of privity prevented bank directors from

obtaining indemnity from the law firm which had handled the

22 attorney owes no professional duty to a third party or non-client.

Parker v. Carnahan, 772 S.W.2d 151, 156 (Tex.App.—Texarkana 1989,

writ denied); F irst Mun. Leasing Corp. v. Blakenship, Potts,

Aikman, Hagin and Stewart, 648 S.W.2d 410, 413 (Tex .App.—Dallas

1983, writ ref'd n.r.e.); F .D.I.C. v. Howse, 802 F.Supp. 1554,

1563 (S.D.Tex.1992). The attorney-client relationship is viewed as

a contractual relationship in which the attorney agrees to render

professional services on behalf of the client. Y aklin, 875 S.W.2d

at 383; P arker, 772 S.W.2d at 156. The attorney-client

relationship can be formed by explicit agreement of the parties or

may arise by implication from the parties' actions. Y aklin, 875

S.W.2d at 383; Parker, 772 S.W.2d at 156.

In the present case, the investors argue first that Jones Day

and/or Kneipper manifested their intent to cr eate a limited

attorney-client relationship by voluntarily issuing the opinion

letter in connection with the FilmDallas securities offerin g

.

Although the attorney-client relationship can be implied, courts

will not readily impute the contractual relationship absent a

sufficient showing of intent. S ee Parker, 772 S.W.2d at 156

(holding that husband's attorneys did not have attorn ey-client

relationship with wife even though the wife met with attorneys and

sig ned documents in their offices). 2 0 We do not believe that thebank's affairs).

21 The investors also argue that this case is distinguishable

because the opinion letter was addressed directly to the

individual investors. We find no significance in this

distinction, however, and do not believe that it supplies any

additional showing of intent to form an attorney-client

relationship.

23 opi nion letter issued by Jones Day and/or Kneipper evidences an

intention to form an attorney-client relationship. C f. First Mun.

Leasing Corp., 648 S.W.2d at 413 (concluding that law firm which

issued opinion letter regarding the validity of a contract owed no

duty to a third-party corporation due to lack of privity).

The investors next argue that the final paragraph of the

opinion letter indicated that Jones Day was rendering professional

services directly to the individual investors:

This opinion is furnished by us, as counsel for the company,

to you, solely for your benefit, and we are not hereby

assuming any professional responsibility to any other person

whatsoever.

Despite the investors' arguments, 21 however, we read this paragraph

to name Jones Day as counsel for FilmDallas solely, disclaiming any

professional responsibility for any other persons, including the

investors. Although unartfully drafted, the opinion letter does

not manifest an intent to create an attorney-client relationship.

To the contrary, the disclaimer is an obvious attempt to avoid an

inadvertent creation of such a relationship.

We hold as a matter of law that a reasonable jury could not

find tha t the parties manifested an intent to create an

attorney-client relationship. Therefore, the investors' first

argument cannot sustain a cause of action for professional24

negligence or legal malpractice. S ee Parker, 772 S.W.2d at 156;

First Mun. Leasing Corp., 648 S.W.2d at 413.

The investors also claim that Jones Day and/or Kneipper had

a duty to inform them that they were not being represented because

the circu mstances would have led reasonable investors to believe

otherwise. Texas courts have held that certain circumstances may

give rise to a "duty to disclose." K otzur v. Kelly, 791 S.W.2d

254, 258 (Tex.App.—Corpus Christi 1990, no writ) ("[A ]n attorney

may be held negligent whe n he fails to advise a party that he is

not representing them on a case when the circumstances lead the

party to believe that the attorney is re presenting them.");

Parker, 772 S.W.2d at 157 ("This duty to so advise would arise if

the factfinder determined that the attorneys were aware or should

have been aware that their conduct would have led a reasonable

person to believe that she was being represented by the

attorneys."). After reviewing the record, we find that the

evidence in this case is also insufficient as a matter of law to

establish that Jones Day and/or Kneipper had a "duty to disclose."

Moreover, even if such a duty did exist, we believe that the

disclaimer in the opinion letter was sufficient to alert the

investors t o the fact that their interests were not being

represented by Jones Day and/or Kneipper.

B

Kneipper and Jones D ay appeal from the district court's

denial of their motion fo r summary judgment, which asserted that

the plaintiffs (except for MVenture) were estopped from asserting25

any claims against defendants by a release contained in the plan of

reorganizatio n entered in FilmDallas's bankruptcy case. The

investors argue that defendants waived the defense of res judicata

by failing to plead it affirmatively as required by F ED .R.C IV .P.

8(c). We agree.

Res judicat a is an affirmative defense which is considered

waived if not specifically pleaded in the answer or an amended

answer permitted under F ED .R.C IV .P. 15(a). M ozingo v. Correct Mfg.

Corp., 752 F.2d 168, 172 (5th Cir.1985); M organ Guaranty Trust Co.

of New York v. Blum, 649 F.2d 342, 344-45 (5th Cir.1981); H enry v.

First Nat'l Bank of Clarksdale, 595 F.2d 291, 298 (5th Cir.1979),

cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980).

Concurrent with their motion for summary judgment, the defendants

filed a motion for leave to amend their answer, which the district

court also denied. A district court has some discretion "to allow

late amendment to press a defense when no prejudice would result to

the other party, and the ends of justice so require." M ozingo, 752

F.2d at 172. We review the district court's denial of such a

motion for abuse of discretion. Morgan Guaranty Trust Co. of New

York, 649 F.2d at 345.

As the investors point out, the defendants did not attempt to

amend their answer until approximately ten months after the

deadline to amend in the securities fraud case and almost three

years after the bankruptcy plan was confirmed. Moreover, the

bankruptcy release was not something the defendants could not have

discovered and asserted earlier. S ee Pope v. MCI26

Telecommunications Corp., 937 F.2d 258 (5th Cir.1991) (af firming

denial of leave to amend where claim could have been asserted years

earlier), cert. denied, 504 U.S. 916, 112 S.Ct. 1956, 118 L.Ed.2d

558 (1992). Therefore, we conclude that the district court

followed the law and did not abuse its discretion in denying

defendants' motions.

VI

For the foregoing reas ons, we AFFIRM the district court's

rulings on the two motion s for summary judgment; we REVERSE the

judgment of the district court in favor of the defendants, and

REMAND for a new trial on the fed eral and Texas state securities

fraud claims and on the civil conspiracy claim.

BERRIGAN, District Judge, concurring in part and dissenting in

part:

I join the majority in affirming the grant of summary judgment

on the professional negligence claim and in affirming the denial of

summary judgment on the estoppel issue. I also join the majority

in finding that the jury was given an erroneous instruction

regarding "materiality" as to the securities fraud claims,

necessitating a new trial on these claims. I disagree with the

majority in one respect . I think that the jury's verdict on the

civil conspiracy claim should be upheld.

"If there is an evidentiary basis upon which the verdict can

be supported, the jury's determinations will be left undisturbed,

even where there is substantial contradictory evidence that could

have supported an opposite verdic t." G ibraltar Savings v. LD

Brinkman Corp., 860 F.2d 1275, 1297 (5th Cir.1988), cert. denied,27

490 U.S. 1091, 109 S.Ct. 2432, 104 L.Ed.2d 988 (1989). The record

reflects that the only fraud claimed by the plaintiffs and

subjected to proof at trial still supports the finding of civil

conspiracy even though it occurred at a time which would have made

it "immaterial" for purposes of the erroneous securities jury

charge.

The majority acknowledges that the verdict on civil conspiracy

derived fr om a jury instruction which has been widely approved.

The jury cannot be misled by a charge which so accurately

summarizes the prevailing jurisprudence. Because civil conspiracy

is a distinct claim which does not require materiality, the jury

was able to consider the "unlawful acts" which were the entire

focus of the five-week trial. The necessary retrial of the

securities claims should not mandate retrial of the civil

conspiracy claim. With the civil conspiracy claim left

undisturbed, the jury's i n pari delicto finding would also be

maintained.