United States Court of Appeals 

for the Fifth Circuit 

No. 20-20005 

In the Matter of: ABC Dentistry, P.A., et al., 

Debtors, 

Dr. Saeed Rohi, 

Appellant, 

versus

J. Mark Brewer; A. Blaire Hickman; Brewer & 

Pritchard, P.C., 

Appellees. 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:19-CV-00682 

Before Dennis, Southwick, and Ho, Circuit Judges. 

James C. Ho, Circuit Judge:

Cause, not self. That is the sworn duty of every member of the legal 

profession—to subordinate their own interests to those of their clients. 

Dr. Saeed Rohi contends that his attorneys violated this cardinal 

principle when they assured him that they were acting in his best interest, 

United States Court of Appeals 

Fifth Circuit 

FILED 

October 28, 2020 

Lyle W. Cayce 

Clerk 

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No. 20-20005 

2 

when in fact they were maximizing their fees at his expense. Dr. Rohi’s claim 

may or may not ultimately succeed on the merits. But he should have the 

opportunity to make his case. We reverse and remand for further 

proceedings. 

I. 

This suit has its genesis in ABC Dentistry’s 2016 bankruptcy case. See 

Rohifard v. Brewer & Prichard, P.C. (In re ABC Dentistry, P.A.), 2019 WL 

913356, at *1 (Bankr. S.D. Tex. Feb. 21, 2019). (Rohi informs our court that 

he was “improperly identified in the court below as Saeed Rohifard.”) 

During those bankruptcy proceedings, Rohi settled a Texas False 

Claims Act suit on behalf of the State of Texas against ABC Dentistry for 

$4 million. Id. At a hearing on November 7, 2017, the bankruptcy court 

proposed the following allocation of the settlement proceeds: $1,599,000 to 

Texas, $720,000 to Dr. Rohi, and $1,681,000 to his attorneys. The court 

then granted a brief recess to allow the parties to consult with counsel. 

During that recess, Rohi alleges that his attorneys made “material 

representations . . . about how the gross recovery (including any attorney fee 

award) would be split to induce [his] consent to the settlement.” Based on 

those representations, he claims, Rohi agreed not to oppose or appeal the 

bankruptcy court’s proposed allocation.

The bankruptcy court then concluded the hearing by issuing an oral 

order distributing the funds as proposed: “$1,599,000 to the State of Texas, 

$720,000 to Dr. Rohi, and $1,681,000 to the attorneys representing Dr. Rohi 

to be divided by the attorneys in accordance with their own agreements.” No 

party appealed that order. The bankruptcy subsequently closed. 

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Rohi was represented in the proceedings by the law firm of Brewer & 

Pritchard, as well as by Charles Long, an attorney from a different firm.1 That 

representation was governed by a written agreement that entitles Brewer & 

Pritchard to 40 percent of the “Gross Recovery.” The agreement defines 

“Gross Recovery” as any money “received from any party” as a result of the 

representation.

Rohi argues that the term “Gross Recovery” consists not only of the 

$720,000 that the bankruptcy court allocated to Rohi, but also the $1,681,000 

that the court awarded to his attorneys. In his view, Brewer & Pritchard is 

entitled to only 40 percent of the sum of those two amounts—and 40 percent 

of that sum ($2,401,000) equals $960,400, which is considerably less than 

the $1,681,000 awarded to the attorneys under the November 2017 order. 

Brewer & Pritchard disagrees. See id. at *2. So Rohi filed suit in Texas 

state court, alleging state law claims against Brewer & Pritchard for breach of 

fiduciary duty, breach of contract, misapplication of fiduciary property, and 

a violation of the Texas Theft Liability Act. He also brought an equitable 

claim for money had and received. 

In response, Brewer & Pritchard moved to reopen the bankruptcy 

proceedings and remove the state case to the bankruptcy court. The 

bankruptcy court subsequently held that it had “arising in or under” 

jurisdiction to hear Rohi’s new claims. Id. at *3. It also held that abstention 

was inappropriate. Id. *5. 

Most notably for this appeal, the bankruptcy court also held that res 

judicata precluded Rohi’s suit. Id. at *5–*10. Also relevant to this appeal, 

1

 Rohi also sued two attorneys at Brewer & Pritchard. Because Rohi brings the 

same claims against the attorneys and the firm, for convenience, we refer to all three 

collectively as “Brewer & Pritchard.” 

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the bankruptcy court did not rule on Rohi’s request to amend his pleadings 

to include additional facts and causes of action regarding Defendants’ 

“material misrepresentations . . . about how the gross recovery . . . would be 

split to induce [his] consent to the settlement at the November [2017] 

hearing.” 

The district court affirmed the bankruptcy court. It held, inter alia, 

that the bankruptcy court did not err in denying Rohi’s motion to amend his 

complaint. See Rohi v. Brewer & Pritchard (In re ABC Dentistry, P.A.), 2019 

WL 6894775, at *19 (S.D. Tex. Dec. 17, 2019). Rohi subsequently filed this 

appeal. 

II. 

In affirming the denial of Rohi’s motion to amend, the district court 

ruled that Rohi’s proposed amendments would have been futile. See, e.g.,

Varela v. Gonzales, 773 F.3d 704, 707 (5th Cir. 2014) (an amended complaint 

is futile “if the complaint as amended would be subject to dismissal”). As 

the district court saw it, the amendments would not have altered the res 

judicata analysis, and thus would not have “cure[d] the deficiency of the 

original complaint—failure to state a claim upon which relief [can] be 

granted.” In re ABC, 2019 WL 6894775, at *19. We review this 

determination de novo. See Flores v. Stephens, 794 F.3d 494, 504 (5th Cir. 

2015) (“[W]hen the denial of leave to amend is based on futility, our standard 

of review is de novo.”). 

“Claim preclusion, or res judicata, bars the litigation of claims that 

either have been litigated or should have been raised in an earlier suit.” Test 

Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005) 

(emphasis added). “[W]e must . . . determine whether the previously 

unlitigated claim could or should have been brought in the earlier litigation.” 

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Ries v. Paige (In re Paige), 610 F.3d 865, 870 (5th Cir. 2010) (quotations 

omitted). 

Rohi sought to amend his complaint to include allegations that Brewer 

& Pritchard attorneys assured him during the recess that they would treat the 

bankruptcy court’s proposed fees as part of Rohi’s “Gross Recovery” under 

his written agreement with Brewer & Pritchard. In re ABC, 2019 WL 

6894775, at *18. The court understood Rohi’s theory that these claims could 

“not [be] barred by res judicata as they could not have been brought prior to 

Dr. Rohi justifiably relying on the fraudulent statements and agreeing to the 

November 2017 allocation.” Id. But the district court nonetheless ruled that 

res judicata barred Rohi’s proposed claims because “the conduct about 

which he is complaining occurred before—not after—the settlement 

allocation.” Id. at *19. 

We disagree. The “conduct” that Rohi seeks to challenge is the 

alleged breach of fiduciary duty—the failure to follow through on the new 

representations supposedly made to him during the November 2017 hearing. 

At the time of the hearing, Rohi could not have even known that the 

attorneys’ assurances were misrepresentations, let alone that he should 

challenge them as such. It was not until after the November 2017 hearing that 

Rohi could have discovered that his attorneys lied to him and would allocate 

the fees in accordance with the allocation, rather than the commitment they 

allegedly made during the recess. In short, had Rohi been granted leave to 

amend his complaint, his proposed claims—whatever their merit—would 

not have been subject to dismissal under the doctrine of res judicata. The 

district court thus erred in concluding that Rohi’s proposed amendments 

would have been futile.

To be sure, Rohi’s original written agreement with Brewer & 

Pritchard was front and center at the November 2017 hearing. We agree that 

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the time for Rohi to object to the November 2017 order as inconsistent with 

the written agreement was at the hearing. But Rohi seeks to argue that there 

was a new commitment that induced him to not contest or appeal the 

November 2017 order. The district court erred in determining that those 

additional claims could and should have been brought at the November 2017 

hearing. 

* * * 

Defendants contend that the alleged side-agreement never occurred, 

and that Rohi has no evidence to support his allegations. For the sake of the 

reputation of the legal profession (such as it is), we hope that that is so. But 

whether Rohi’s future amended complaint has the evidentiary support to 

proceed or prevail is a matter for the parties and the district court to resolve 

on remand. 

We reverse and remand, with instructions that Rohi’s motion for 

leave to amend be granted. 

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