            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                    Fifth Circuit

                                                                               FILED
                                                                               May 8, 2008

                                         No. 07-10558                    Charles R. Fulbruge III
                                                                                 Clerk

KARIN JACOBS, PATRIA JACOBS, AND JOEANN FROST

                                                     Plaintiffs-Appellants
v.

WILLIAM K. TAPSCOTT, JR. AND BARON & BUDD, P.C.

                                                     Defendants-Appellees



                     Appeal from the United States District Court
                          for the Northern District of Texas
                                    3:04-CV-1968


Before DAVIS and SOUTHWICK, Circuit Judges, and CLARK, District Judge.*
PER CURIAM:**
       Appellants in this case challenge the dismissal of their suit pretrial in an
order granting a motion for summary judgment (dismissing some of the claims)
and a later judgment as a matter of law (dismissing the remaining claims).
       The plaintiffs-appellants are the heirs of Carl Jacobs, who died of
mesothelioma as a result of asbestos exposure. The defendants-appellees are
attorney William Tapscott, and his then employer, the law firm of Baron &

       *
           District Judge of the Eastern District of Texas, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 07-10558

Budd, who represented plaintiffs in their asbestos-related litigation against
numerous corporate defendants.        Before the June 1999 trial setting of the
asbestos litigation, the appellees negotiated settlements with the asbestos
defendants for a total of $2.4 to $2.5 million. After the settlement was agreed
to, one of the defendants withdrew its offer. Other defendants filed bankruptcy
proceedings. As a result, counsel collected only $2.1 million of the settlement
sum.
       Plaintiffs were dissatisfied with counsels’ service, primarily because all of
the settlement funds were not collected. Plaintiffs sued their attorneys on
theories of negligence, misrepresentation, gross negligence, breach of contract,
and breach of fiduciary duty. Specifically plaintiffs alleged that they were not
informed of certain settlement details, such as the fact that it would not be paid
entirely in cash; because one company, Pittsburgh Corning Corporation (“PCC”)
had pulled its settlement agreement; because certain other defendants were in
poor financial condition or bankrupt; because the attorneys did not obtain
written confirmation of settlements and did not protect plaintiffs from the
consequences of post-settlement bankruptcy of asbestos defendants; and because
they were not notified of renegotiations of settlement amounts.
       The district court granted the defendants’ Motion for Summary Judgment
as to all claims except two breach of fiduciary duty claims. Based on our review
of the record and applicable law, we agree with the district court that summary
judgment was appropriate on plaintiffs’ claims of negligence, misrepresentation,
gross negligence, breach of contract, and breach of fiduciary duty. We agree with
the district court that: (1) plaintiffs failed to demonstrate they were damaged
from counsels’ alleged negligence and misrepresentation; (2) plaintiffs failed to
state a claim predicated on gross negligence; and (3) plaintiffs’ breach of contract
claim was an impermissibly fractured malpractice claim. In addition, apart from
the two fiduciary duty claims that survived the motion for summary judgment,


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plaintiffs’ breach of fiduciary duty claims were either impermissibly fractured
malpractice claims or were barred because they were not raised in plaintiffs’
original complaint. Essentially for the reasons assigned in the district court’s
thorough September 25, 2006 order, we agree that the court correctly granted
summary judgment on the claims covered by that order.
      The two remaining prongs of plaintiffs’ fiduciary duty claim were heard by
a jury. The two remaining claims were :
      (1)   that defendants had improperly used and exercised the powers of
            attorney granted to them in the employment agreements with
            plaintiffs so as to improperly gain the benefit of attorney’s fees and
            avoid the necessity and expense of a jury trial; and
      (2)   that defendants breached their fiduciary duties by deliberately lying
            to plaintiffs and telling them that the entire underlying litigation
            had settled, without telling them that a single defendant,
            Pittsburgh Corning, had not settled.
The jury rejected the first claim and rendered a verdict in favor of plaintiffs on
the second claim, awarding them $129,000. Thereafter on Motion for Judgment
as a Matter of Law, the district court dismissed the second claim, rendering
judgment for defendants notwithstanding the jury’s verdict.
      Again based on our review of the record, we agree with the district court
that the evidence was legally insufficient to prove that Tapscott deliberately lied
to plaintiffs, because there was no proof of when he knew that Pittsburgh
Corning had pulled its settlement offer in relation to when he told plaintiffs that
their case had settled in full. Any claim that the defendants later concealed the
fact or failed to inform them that the settlement with Pittsburgh Corning had
been withdrawn did not survive the motion for summary judgment. The narrow
fiduciary duty issue that survived the motion for summary judgment was
described by the district court in the order disposing of that motion as “an


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alleged deliberate lie rather than a mere failure to communicate or inform.” In
addition, the district court properly stated that a claim of failure to communicate
is a fractured claim of legal malpractice, which claims were disposed of in the
motion for summary judgment. Essentially for the reasons assigned in the
district court’s thorough April 12, 2007 order, we agree that the court correctly
granted judgment as a matter of law on the claim that defendants breached their
fiduciary duty by deliberately lying to the plaintiffs. Because plaintiffs’ fiduciary
duty claims were properly rejected, their attorney fee disgorgement claim was
properly denied.
      AFFIRMED.




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