                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                            July 21, 2004

                                                                Charles R. Fulbruge III
                                                                        Clerk
                                 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:*

     Jamie     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, inter alia, that T&K

breached the contract by demanding fees not provided by their

     *
        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this opinion should not be published and is not precedent except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.
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 distribution 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 law.     FED. R. CIV. 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 breach 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   the


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plaintiff as a result of the breach”.       Dorsett 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 been 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 is 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 that T&K substantially performed the contract and that its

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

proper.

     Neither 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.            See 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; those


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defendants were named in an amended complaint but never served with

process.   See FED. R. CIV. 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




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