## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 00-60301

Summary Calendar

_______________



### F IDELIA 

### A LEXANDER



### , ETC



### ., ET AL



### .,

Plaintiffs,



### C LINTON 

### A LEXANDER

AND



### B ENEFICIARIES OF THE 

### B EBE 

### A LEXANDER 

### F AMILY 

### T RUST



### ,

Plaintiffs-Appellants,

VERSUS



### U NION 

### P LANTERS 

### B ANK



### ,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(2:98-CV-128-B-B)

_________________________ September 15, 2000

Before SMITH, BENAVIDES, and

DENNIS, Circuit Judges. JERRY E. SMITH, Circuit Judge: *

* Pursuant to 5 TH C IR. R. 47.5, the court has

determined that this opinion shoul d not be

published an d is not precedent except under the

(continued...)2

Clinton Alexander, pro se

, appeals, for herself and as next-friend of her sister, Fidelia Alexander, a summary judgment declaring that a

previous settlement agreement releases defendant Union Planters Bank from any liabilit y for

the matters being litigated in this suit. We affirm, concluding that the district court

correctly held that the lan guage of the

settlement agreement unambiguously governs

these issues, that there is no evidence of fraud

or inequitable conduct, and that the re was

adequate consideration to fo rm a valid

contract.

I.

Fidelia and Clinton Alexand er were

beneficiar ies under the Bebe H. Alexander

Family Trust, created by the will of their

grandfather. His daughter, Bebe, and Clinton

and Fidelia were beneficiaries.

Most of the payments from the trust were

made to Bebe, but Fidelia and Clinton then

requested that payments be made to them.

The wi ll provided that the bank as trustee, at

its discretion, could make payments for such

purposes. After considering Fidelia and Clint o n’s request, the bank denied them any

payments, instead choosing to continue to pay

the majority of the income to Bebe.

II.

Fidelia and Clinton, pro se

, sued the bank in

state court, accusing it of various violations of

its duty as trustee, including failing to sell the

farm in 1980 when land prices were at a peak

and violating the trust’s terms by paying most

of the i nco me t o Bebe. Fidelia and Clinton then dismissed so they could refile in an other

county.

Before plaint iffs refiled , t he bank sued in

yet a third county, seeking to resign as trustee,

to have the ri g hts of the beneficiaries of the

trust determined, and to be di s charged from

f urther obligations under the trust. On the

date of trial, the parties entered into a

settlement agreement stating, inter alia

, that

“all claims now existing or alleged to exist

among the parties in this case are released and

discharged . . . .”

Fid elia and Clinton then filed the instant

suit, seeking damages from the bank for

breaches of fiduciary duties and fraudulent behavior with respect to the administration of the

trust. They claim that the term “parties” in the

1996 settl ement referred only to the

beneficiar ies of the trust and not to the bank,

even though the bank was the plaint iff in that

case. Plaintiffs argue that the fact that the

bank interpreted the term “parties” to include

it means there wa s no meeting of the minds.

The bank disagrees, reasoning that the plain

language of the settlement releases it from all

liabilit y that existed to Fidelia and Clinton as of

the time of the settlement.

III.

We re view a summary judgment d e novo

. See Rivers v. Central & S.W. Corp.

, 186 F.3d

681, 682 (5th Cir. 1999). The district court

correct ly determined that the language of the

settlement unambiguou sly released all parties

to that suit from any liabilit y that existed

among them at that time. It is hard to imagine

how a global settlement cou ld be much more

plainly worded than “all claims now existing or

alleged to exist among the parties in this case

are released and discharged

. . . .” This

unambiguous language preclu des us from

going beyo n d the written words of the * (...continued)

limited circumstances set forth in 5 TH C IR

. R.

47.5.4.3

settlement and delving into parole evidence of

what the parties intended when they signed the

agreement. S ee Cooper v. Crabb

, 587 So. 2d

236, 241 (Miss. 1991).

Any party represented by competent

counsel shoul d have realized that this

agreement would be interpreted to release the

b ank from all liability. It is undisputed,

however, that Cli nt o n and Fidelia Alexander

made an honest mistake in thinkin g that the

settlement agree m ent did not include the

bank. 1 Unfortunately for them, no matter how

sincere their mistaken belie f was that the

agreement did not release the bank from

liabilit y, “[a] unilateral mistake will not be the

basis for upsetting a settlement unless there is

some evidence of fraud, duress, overreaching, etc.” Taylor v. Firestone Tire & Rubber Co.

, 519 So. 2d 436, 438 (Miss. 1988).

Although plaint iffs allege “sheer chicanery”

and “bad faith and trickery” on the part of the

bank’s attorney, we find no evidence of fraud

in the record. Indeed, the record shows that

t he settlement was negotiated by the lawye r s

for the two divided camps of beneficiaries, and

there is no record of the attorney’s making any

representations at all as to the meaning of the

s ettlement terms to either Clinton and Fidelia

or their attorneys.

The bank’s atto r ney was present in the

courtroom and did sign the agreement, but

there is no evidence whatsoever of fraud on his

part. Plaint

iffs’ argument that he is guilty of

bad faith an d trickery is instead made in

response to his taking the position that the settlement agreement 

### SS

which he signed in

settlement of the case in which his cl ient was

the plaintiff



### SS applied to his client.

Plaint iffs contend that the settlement could

not include the ba nk because they were

“specific in their instructions that no settlement

agreement sho uld bar their eventual claim

a gainst Union Planters for damages.”

Therefore, they argue, any interpretation of

“parties” that includes Union Planters Bank is

either erroneous or trickery.

Plaint iffs, however, have failed to allege to

whom, if anyone, other than their attorneys,

they gave these specif

ic instructions. They

further do not allege that the bank was aware

of their desire to reserve t he right to sue the

bank for breach of its duties as trustee, or that

t he bank or its attorney s ever communicate d

anything to them about the meaning of the

agreement. Therefore, the fact that t he

settlement agreement stated that it released all

“parties in the case” cannot lead to recission of 1 The undisput ed evidence is that the sisters

were both too ill to be in the courtroom and

therefore had to have their attorneys relay the

settlement negotiations to them in a separate room.

Thus, the fact that they may have become confused

as to the exact wording and intent of the settlement

is somewhat understandable. More remarkable are

the af_fidavits from the sisters’ attorneys in which

they seem

to trumpet their own shortcomings.

They state that when Wright signed the settlement

agreement, they both believed that it did not release

the Bank from any liability. They further state in

their affidavits SS which are identically

worded SS that the Bank should have communicated

more plainly that the settlement agreement released

it from liability.

Had the ailing sisters been negotiating for

them _selves we might consider the question of

whether the Bank should have explained each element of the settlement agreement to them. But

where, as here, clients are represented by

supposedly competent counsel, we reject any

argument that opposing counsel has a duty to make

sure that each unambiguo u s part of an agreement

is subjectively understood by both lawyer and

client.4

the contract on grounds that pl a int iffs were

fraudulen t ly induced to make a unilateral

mistake.

Pla i nt iffs alternatively aver that there was

no consideration

given by the bank in

exchange for its release from liabi lit y. They

argue that the bank agreed to do no more than

fulfill its pre-existing duties as truste e, which

cannot a mo unt to consideration given in

exchang e for a promise to release it from

liabilit y. Plaintiffs do not recognize, however,

that the bank dropped its suit seek ing court

approval to resign as trustee and to be discha rged from further obligations under the

trust. This consideration was sufficient to

form a valid contract.

AFFIRMED.