Graham v. Wilson N. Jones Hospital
AFFIRMED in part, REVERSE and REMAND in part; Opinion Issued August 23,
2001
S
In The
Court of Appeals
Fifth District of Texas at Dallas
……………………….
No. 05-98-01365-CV
……………………….
SELDON B. GRAHAM, III, M.D. and
STEVEN J. HOUGH, M.D., Appellants
V.
WILSON N. JONES HOSPITAL,
PHYSICIAN STAFFING RESOURCES, INC. ,
FREDERICK B. TICHENOR, HARRY F. BARNES,
JOSEPH W. FIELDS, ROBERT R. FIELDER, and
DONNIE D. CULPEPPER, M.D. , Appellees
…………………………………………………….
On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 96-1525
…………………………………………………….
MEMORANDUM OPINION
Before Justices Thomas, Morris, and Farris FN:1
Opinion By Justice Farris
In The
Court of Appeals
Fifth District of Texas at Dallas
……………………….
No. 05-98-01365-CV
……………………….
SELDON B. GRAHAM, III, M.D. and
STEVEN J. HOUGH, M.D., Appellants
V.
WILSON N. JONES HOSPITAL,
PHYSICIAN STAFFING RESOURCES, INC. ,
FREDERICK B. TICHENOR, HARRY F. BARNES,
JOSEPH W. FIELDS, ROBERT R. FIELDER, and
DONNIE D. CULPEPPER, M.D. , Appellees
…………………………………………………….
On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 96-1525
…………………………………………………….
MEMORANDUM OPINION
Before Justices Thomas, Morris, and Farris FN:1
Opinion By Justice Farris
???????? Appellants appeal summary judgments separately granted to the individual and corporate
appellees dismissing all of appellants’ claims against the appellees. Appellants pleaded
alternative theories of recovery, all related to their loss of opportunity to practice at the hospital,
alleged as nine ?counts?: (1) breach of a contract expressed within the hospital bylaws, (2)
breach of a contract contained within a letter from Fielder to the appellants, (3) breach of an
oral contract with Culpepper agreeing that all parties would meet in the future for further
negotiations and to provide appellants with a copy of any contract with the hospital, (4) breach
of a contract expressed within a hospital resolution providing appellants would be given an
opportunity to join a new anesthesiology group, (5) tortious interference with a prospective
contract, (6) restraint of trade, (7) negligent misrepresentation, (8) intentional infliction of
emotional distress, and (9) fraud.
????????The individual appellees’ summary judgment motion was filed and ruled upon
before the effective date of Tex. R. Civ. P. 166a(i). Appellees’ brief describes the grounds for
that motion to be res judicata and the inability of the appellants to demonstrate the existence of
a material fact issue with regard to any of their claims. Res judicata was never raised in the
summary judgment motion. And the one supporting affidavit did not satisfy the individual
appellees’ burden of presenting evidence that negated at least one element of the individual
plaintiffs’ various claims. See Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d 801, 803 (Tex.
1999). Accordingly we sustain appellants’ issues as to the individual appellees.
????????The corporate appellees’ summary judgment motion included assertions that
there was no evidence to support stated elements of counts 2, 3, 5, 6, 7, 8 and 9 as pleaded by
appellants. Appellants’ response to the corporate appellees’ motion was not supported by any
summary judgment proof. The trial court properly granted the motion as to count 2 because there
was no evidence that Culpepper had authority to represent either corporate appellee; as to count
3 because there was no evidence of consideration; as to count 5 because there was no evidence
the corporate appellees interfered by preventing a contractual relationship, see Gillum v.
Republic Health Corp., 778 S.W.2d 558, 565 (Tex. App._Dallas 1989, no writ); as to count
6 because there was no evidence of any effect on competition, see Jefferson Parish Hosp.
Dist. No. 2 v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984); as to counts 7 and 9
because there was no evidence that the corporate appellees made a misrepresentation; and as to
count 8 because there was no evidence of any of the elements of intentional infliction of
emotional distress. See Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1983).
????????The trial court properly granted the corporate appellees’ motion as to count 1
because appellees offered summary judgment proof that the bylaws were not a contract, and
appellants neither challenged nor controverted that proof.
????????In count 4 appellants asserted that the hospital board had passed a resolution
directing the hospital to enter into an exclusive contract for the provision of anesthesia services
but to provide an opportunity for appellants to be a part of the group that would provide those
services and that appellees breached that resolution. The trial court properly granted the motion
as to count 4 because the undisputed evidence is that appellants were given an opportunity to
join that group.
????????The judgment in favor of Wilson N. Jones Hospital and Physician Staffing
Resources, Inc. is affirmed. The judgment in favor of the individual defendants Frederick B.
Tichenor, Harry F. Barnes, Joseph W. Fields, Robert R. Fielder, and Donnie D. Culpepper is
reversed, and appellants’ cause against them is remanded to the trial court.
????????????????????????????????????????????????
?????????
????????????????????????????????????????????????
?????????DAVID F. FARRIS
????????????????????????????????????????????????
?????????JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
FN:1
1 ????????The Honorable David F. Farris, Retired Justice, Second District Court of
Appeals, Fort Worth, Texas, sitting by assignment.
File Date[08/23/2001]
File Name[981365F]
appellees dismissing all of appellants’ claims against the appellees. Appellants pleaded
alternative theories of recovery, all related to their loss of opportunity to practice at the hospital,
alleged as nine ?counts?: (1) breach of a contract expressed within the hospital bylaws, (2)
breach of a contract contained within a letter from Fielder to the appellants, (3) breach of an
oral contract with Culpepper agreeing that all parties would meet in the future for further
negotiations and to provide appellants with a copy of any contract with the hospital, (4) breach
of a contract expressed within a hospital resolution providing appellants would be given an
opportunity to join a new anesthesiology group, (5) tortious interference with a prospective
contract, (6) restraint of trade, (7) negligent misrepresentation, (8) intentional infliction of
emotional distress, and (9) fraud.
????????The individual appellees’ summary judgment motion was filed and ruled upon
before the effective date of Tex. R. Civ. P. 166a(i). Appellees’ brief describes the grounds for
that motion to be res judicata and the inability of the appellants to demonstrate the existence of
a material fact issue with regard to any of their claims. Res judicata was never raised in the
summary judgment motion. And the one supporting affidavit did not satisfy the individual
appellees’ burden of presenting evidence that negated at least one element of the individual
plaintiffs’ various claims. See Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d 801, 803 (Tex.
1999). Accordingly we sustain appellants’ issues as to the individual appellees.
????????The corporate appellees’ summary judgment motion included assertions that
there was no evidence to support stated elements of counts 2, 3, 5, 6, 7, 8 and 9 as pleaded by
appellants. Appellants’ response to the corporate appellees’ motion was not supported by any
summary judgment proof. The trial court properly granted the motion as to count 2 because there
was no evidence that Culpepper had authority to represent either corporate appellee; as to count
3 because there was no evidence of consideration; as to count 5 because there was no evidence
the corporate appellees interfered by preventing a contractual relationship, see Gillum v.
Republic Health Corp., 778 S.W.2d 558, 565 (Tex. App._Dallas 1989, no writ); as to count
6 because there was no evidence of any effect on competition, see Jefferson Parish Hosp.
Dist. No. 2 v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984); as to counts 7 and 9
because there was no evidence that the corporate appellees made a misrepresentation; and as to
count 8 because there was no evidence of any of the elements of intentional infliction of
emotional distress. See Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1983).
????????The trial court properly granted the corporate appellees’ motion as to count 1
because appellees offered summary judgment proof that the bylaws were not a contract, and
appellants neither challenged nor controverted that proof.
????????In count 4 appellants asserted that the hospital board had passed a resolution
directing the hospital to enter into an exclusive contract for the provision of anesthesia services
but to provide an opportunity for appellants to be a part of the group that would provide those
services and that appellees breached that resolution. The trial court properly granted the motion
as to count 4 because the undisputed evidence is that appellants were given an opportunity to
join that group.
????????The judgment in favor of Wilson N. Jones Hospital and Physician Staffing
Resources, Inc. is affirmed. The judgment in favor of the individual defendants Frederick B.
Tichenor, Harry F. Barnes, Joseph W. Fields, Robert R. Fielder, and Donnie D. Culpepper is
reversed, and appellants’ cause against them is remanded to the trial court.
????????????????????????????????????????????????
?????????
????????????????????????????????????????????????
?????????DAVID F. FARRIS
????????????????????????????????????????????????
?????????JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
FN:1
1 ????????The Honorable David F. Farris, Retired Justice, Second District Court of
Appeals, Fort Worth, Texas, sitting by assignment.
File Date[08/23/2001]
File Name[981365F]