Baron & Budd, former associate victorious

On May 8, the 5th U.S. Circuit Court of Appeals affirmed a trial court’s decision to dismiss a case in which a jury found that a former Baron & Budd associate had breached his fiduciary duty to three clients by deliberately lying to them about the status of their asbestos case. In February 2007, a federal jury in Dallas awarded Baron & Budd clients Karin Jacobs, Patria Jacobs and JoeAnn Frost $129,000 against former Baron & Budd associate Ken Tapscott. Specifically the jury found that Tapscott had breached his fiduciary duty when he “deliberately lied” to his clients by telling them that all of the asbestos defendants they sued in 1997 had agreed to settle the case when, in fact, defendant Pittsburgh Corning had not settled. The jury also found that Baron & Budd did not breach its fiduciary duty to the clients by abusing power-of-attorney agreements. In April 2007, U.S. District Judge Sidney Fitzwater granted a defense motion for summary judgment as a matter of law in Jacobs, et al. v. William K. Tapscott Jr. and Baron & Budd, a motion the defendants had filed before the jury returned the verdict. In his opinion, Fitzwater wrote that the plaintiffs had not shown that Tapscott had breached his fiduciary duty by deliberately lying about the settlement. Rather, the judge wrote, the plaintiffs argued that concealment of the truth from them was part of Tapscott’s alleged breach of fiduciary duty, and that is not a claim that survived Fitzwater’s pretrial summary judgment ruling. “Plaintiffs’ counsel maintained that this is a concealment case,” Fitzwater wrote, referring to arguments they made opposing the summary judgment motion filed by the defendants. “Although plaintiffs’ claim has a concealment component — that Tapscott did not tell plaintiffs that Pittsburgh Corning had not settled — it functioned as the predicate for the assertion that he had deliberately lied by telling them the entire Jacobs litigation had settled," Fitzwater wrote. In a per curiam opinion released on May 8, the 5th Circuit agreed with Fitzwater. “We agree that the court correctly granted summary judgment as a matter of law,” according to the opinion. Tapscott left Baron & Budd after he was elected to Dallas County Court-at-Law No. 4 in 2006.

-- John Council