American Bd. of Obstetricsand Gynecology v. Yoonessi

• Citation: 286 S.W.3d 624
• Decision Date: 28 May 2009
• Docket Number: No. 05-08-00513-CV.,05-08-00513-CV.
• Parties: AMERICAN BOARD OF OBSTETRICS AND GYNECOLOGY, INC., Appellant/Cross-appellee, v. Mahmood YOONESSI, M.D., Appellee/Cross-appellant.
• Court: Court of Appeals of Texas

286 S.W.3d 624

AMERICAN BOARD OF OBSTETRICS AND GYNECOLOGY, INC., Appellant/Cross-appellee, v. Mahmood YOONESSI, M.D., Appellee/Cross-appellant.

No. 05-08-00513-CV.

Court of Appeals of Texas, Dallas.

May 28, 2009.

Stephen L. Tatum, John S. Polzer, Cantey & Hanger, L.L.P., Fort Worth, for Appellant.

Shahin Shamseddin Modjarrad, Bernard J. Grant, Mohamad Said, Modjarrad &

Abusaad, Law Firm, Richardson, for Appellee.

Before Justices MORRIS and MOSELEY.¹

OPINION

Opinion By Justice MORRIS.

This is a summary judgment case. The American Board of Obstetrics and Gynecology appeals the trial court's take-nothing summary judgment on its claims against Mahmood Yoonessi, M.D. for breach of contract, malicious prosecution, and abuse of process. Yoonessi has filed a cross-appeal. He contends the trial court erred in denying him the opportunity to amend his pleadings after hiring an attorney. For the reasons that follow, we reverse that part of the trial court's judgment relating to ABOG's abuse of process claim and remand the cause to the trial court for further proceedings on that claim. We affirm the trial court's judgment in all other respects.

I.

The American Board of Obstetrics and Gynecology is a non-profit corporation offering board certification to qualified doctors in the practice areas of obstetrics and gynecology. Yoonessi became an ABOG diplomate in 1975 and received the subspecialty of gynecological oncologist in 1980. In 2001, after an investigation and hearing, the New York State Board for Professional Medical Conduct revoked Yoonessi's New York medical license. Upon learning of the New York Board's determination, the Medical Board of California revoked Yoonessi's license to practice medicine in California. In response, Yoonessi filed federal lawsuits in New York and California against multiple defendants, including ABOG. The New York suit was filed first in 2003. The California suit followed in 2004. After both of the federal lawsuits were dismissed, ABOG brought this action against Yoonessi to recover certain legal fees and expenses it incurred in the actions. ABOG alleged causes of action for breach of contract, abuse of process, and malicious prosecution. The trial court granted Yoonessi's motion for summary judgment on all of ABOG's claims.² This appeal followed.

II.

ABOG first argues the trial court erred in granting Yoonessi summary judgment on its breach of contract and abuse of process claims because he failed to present any evidence to support summary judgment on these claims. Before addressing the merits of ABOG's argument, we note the procedural posture in which this case comes before us. The trial court specifically ruled that Yoonessi had filed a traditional motion for summary judgment and not a no-evidence motion for summary judgment. Yoonessi has not challenged this ruling on appeal. Consequently, our review is governed by the standards applicable to a traditional summary judgment. We consider whether the successful movant carried his burden of showing that there is no genuine issue of material fact and that he was entitled to judgment as a matter of law. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). In his motion under the heading "Summary Judgment Evidence," Yoonessi listed ABOG's original petition and nothing else. He attached no summary judgment evidence to his motion.

ABOG contends that because Yoonessi failed to provide any evidence in support of his summary judgment motion, the trial court should have denied his motion on this basis alone. ABOG further argues that the trial court could not consider the documents it submitted in response to the summary judgment motion as supplying the necessary evidence for Yoonessi to meet his summary judgment burden. Rule 166a(c) expressly states that the summary judgment record includes evidence attached either to the motion or to a response. See Wilson v. Burford, 904 S.W.2d 628, 629 (Tex.1995). The evidence provided in ABOG's response to Yoonessi's motion was proper summary judgment evidence upon which both parties could rely and the trial court could consider in making its summary judgment ruling. Having determined what evidence the trial court could consider with respect to Yoonessi's motion for summary judgment, we next address whether that evidence conclusively established Yoonessi's entitlement to summary judgment.

ABOG argues fact issues precluded summary judgment on its breach of contract claim. In its original petition, ABOG alleges Yoonessi breached an exclusive jurisdiction and venue provision by suing ABOG in California and New York instead of Dallas, Texas, the location of ABOG's principal place of business. Yoonessi moved for summary judgment arguing he did not breach the provision because (1) it first appeared twenty-seven years after he became an ABOG diplomate and (2) the plain language of the provision indicates it applied only to those becoming diplomates at the time it was added, not to existing diplomates. We focus on the second aspect of Yoonessi's argument.

ABOG's 2003 and 2004 bulletins contain the following exclusive jurisdiction and venue provision:

Jurisdiction and Venue. The Corporation shall require, as a condition precedent for any person or entity to become a Member, Director, Officer, Employee, Agent, Applicant for Examination, a Diplomate certified by the Corporation, a Committee or Division Member, ... that such person or entity agree as follows:

In any dispute of any kind with the Corporation or any Person or Entity, such Person or Entity shall be subject to suit, if at all, only in the County and State where the Corporation maintains its principal place of business and its headquarters, which is currently Dallas, Dallas County, Texas. Each Person or Entity shall be required to consent to the exclusive jurisdiction and venue of courts located in Dallas, Texas and laws of the State of Texas for the resolution of any and all such disputes.

In 1973, Yoonessi applied to ABOG "for the issuance of a Diploma of Qualification in accordance with and subject to [ABOG's] Certificate of Incorporation, By-Laws, Rules and Regulations." In the application, Yoonessi also agreed that his certificate could be revoked, forfeited, or redelivered in the event that he "shall not have complied with or shall violate any of the provisions" of ABOG's certificate of incorporation, by-laws, or rules and regulations. ABOG argues that by these application provisions, Yoonessi clearly agreed to abide by all ABOG rules while claiming diplomate status, including the jurisdiction and venue provision added years after Yoonessi received his certification. ABOG further contends that, by becoming a diplomate Yoonessi subjected himself to ABOG's rule-making power and...