Brown v. University of Texas Health Center at Tyler, 12-97-00123-CV

• Decision Date: 26 November 1997
• Docket Number: No. 12-97-00123-CV,12-97-00123-CV
• Citation: 957 S.W.2d 911
• Parties: 122 Ed. Law Rep. 1305 Lee Edward BROWN, Appellant, v. The UNIVERSITY OF TEXAS HEALTH CENTER AT TYLER, Richard Kronenberg, M.D., Richard Viken, M.D., and Pieter DeWet, M.D., Appellees.
• Court: Texas Court of Appeals

Page 911

957 S.W.2d 911

122 Ed. Law Rep. 1305

Lee Edward BROWN, Appellant, v. The UNIVERSITY OF TEXAS HEALTH CENTER AT TYLER, Richard

Kronenberg, M.D., Richard Viken, M.D., and Pieter

DeWet, M.D., Appellees.

No. 12-97-00123-CV.

Court of Appeals of Texas,

Tyler.

Nov. 26, 1997.

Lance S. Baxter, Plano, for appellant.

Dedra Lynn Wilburn, Austin, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

HADDEN, Justice.

Dr. Lee Edward Brown ("Brown") brought suit against The University of Texas Health Center at Tyler ("UTHCT") and three officials of UTHCT, individually, asserting that he was wrongfully terminated from his residency in its family practice program. Brown alleged causes of action based on breach of contract, tortious interference with prospective business relations, denial of procedural and substantive due process, and denial of freedom of speech. He sought damages, reinstatement

into the program, and injunctive relief. The defendants filed a motion for summary judgment which was granted by the trial court. On appeal, Brown, in one point of error, alleges that the trial court erred in granting the summary judgment. We will affirm.

STANDARD OF REVIEW

The standard of review on appeal is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 469 (Tex.App.--El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. TEX.R. CIV. P. 166a; Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

BREACH OF CONTRACT AND TORTIOUS INTERFERENCE

Brown alleged that UTHCT breached its contract with him by terminating his residency prior to the conclusion of his annual contract. In its summary judgment motion, UTHCT asserted that it was a state agency and that the three individual defendants, as employees of a state agency, were acting within the course and scope of their employment. UTHCT argues that Brown's suit is, therefore, a suit against the State of Texas and, as such, is barred by the doctrine of sovereign immunity. We agree.

The State as sovereign is immune from suit without consent even though there may be no dispute regarding the state's liability. Missouri Pacific R.R. Co. v. Brownsville Nav. Dist., 453 S.W.2d 812, 813 (Tex.1970). The doctrine bars a suit against the State unless the State has expressly given its consent to be sued; Id. at 813; see also TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.025, 107.001-.005 (Vernon Supp.1996). A party suing a governmental entity protected by sovereign immunity must allege consent to suit either by reference to a statute or express legislative permission. Missouri Pacific R.R. Co., 453 S.W.2d at 814. Unless there is a pleading of consent, the trial court has no jurisdiction to hear the case. Id.

Brown argues that an exception to this doctrine exists, in that the state waives its immunity from liability when it contracts. In support of this proposition, he cites Dillard v. Austin Indep. School Dist., 806 S.W.2d 589, 592 (Tex.App.--Austin 1991, writ denied) and Ntreh v. University of Tex. at Dallas, 936 S.W.2d 649 (Tex.App.--Dallas 1996). There has been a conflict among the courts of appeals on whether the State, by entering into a contract with a private citizen, waives immunity from suit by the mere fact that it has made the contract, rendering legislative consent to sue unnecessary. However, the Supreme Court has recently handed down its decision in Federal Sign v. Texas Southern Univ., 951 S.W.2d 401(Tex.1997) and addressed this conflict. The Supreme Court, after analyzing the conflicting holdings among the courts of appeals, and citing Missouri Pacific R.R. Co., specifically held that "a private citizen must have legislative consent to sue the state on a breach of contract claim. The act of contracting does not waive the State's immunity from suit." Accordingly, the Court expressly overruled any cases that hold to the contrary. Federal Sign, 951 S.W.2d at 408. Thus, the contrary holdings in Dillard and Ntreh have been expressly overruled. See Ntreh, 947 S.W.2d 202 (Tex.1997)(writ granted, judgment modified.)

In the instant case, Brown did not allege a valid statute or an express legislative permission to sue the State for breach of contract or tortious interference with prospective business relationships. ¹ Moreover, the summary

judgment evidence shows that he had not obtained such consent. Thus, the trial court was correct in granting UTHCT a summary judgment on Brown's claims based on breach of contract and tortious interference with prospective business relations.

PROCEDURAL DUE PROCESS

Recognizing that a state agency cannot be liable for constitutional torts because it is not a "person" capable of violating an individual's rights pursuant to 42 U.S.C. § 1983 (1988), ² Brown limited his constitutional claims to the three individually named defendants, Richard Kronenberg, M.D., Richard Viken, M.D., and Pieter DeWet, M.D. (sometimes referred to collectively as the "individual defendants"). Viken was Chairman of The Department of Family Practice and Director of the Family Practice Residency Program for UTHCT. Viken monitored Brown's behavior, placed him on administrative leave status and ultimately wrote the letter of dismissal to Brown. It is not clear from the record what official capacities DeWet and Kronenberg held at UTHCT, but factual allegations by Brown indicate that they assisted Viken in the residency program and participated in the supervision and discipline of Brown. Brown alleged that as a contract medical resident with the UTHCT, he had a liberty and a property interest which was denied him without due process of law in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment to the UNITED STATES CONSTITUTION. He claimed that he did not receive adequate notice of the reason for his discharge nor a meaningful opportunity to be heard. The individual defendants asserted that assuming, arguendo, that Brown had a liberty and property interest as a medical student under an employment contract, he received all of the procedural due process to which he was entitled. We agree.

It is axiomatic that due process requires notice and an opportunity to be heard. Board of Curators of University Missouri v. Horowitz, 435 U.S. 78, 85, 98 S.Ct. 948, 952, 55 L.Ed.2d 124 (1978); Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). However, in Horowitz, where a student was dismissed from medical school, the Supreme Court stated that "far less stringent procedural requirements" are necessary in the case of an academic dismissal. Horowitz, 435 U.S. at 86, 98 S.Ct. at 953. Courts overwhelmingly agree that students, whether dismissed for academic or disciplinary reasons, are not entitled to as much procedural protection under the Fourteenth Amendment as employees who are terminated from their jobs. Davis v. Mann, 882 F.2d 967, 973 (5th Cir.1989)(plaintiff dismissed from General Practice Residency of the University of Mississippi Dental Medical School).

The summary judgment evidence shows that on December 12, 1994, Brown was dismissed from the program by letter outlining in detail the reasons for his dismissal. The letter of dismissal stated that if Brown wished to appeal, he could do so by following the written appeal procedure, a copy of which was attached to the letter. On January 3, 1995, Brown gave notice that he wanted to appeal the dismissal. By letter dated January 20, 1995, postmarked January 23, 1995, Brown was notified that the appeal hearing was set for February 13, 1995. Brown did not appear at the hearing and the panel affirmed his dismissal.

Brown's summary judgment evidence did not contradict the notice of charges made against him nor the notice of hearing. He admitted to such notices, but argued that he should have been given notice and a hearing before his dismissal. As in Horowitz, however, Brown is not entitled to as much procedural protection as employees who are fired. Relying on Horowitz, the court in Davis held that the dental resident received due process when the student, as did Brown in this case, received a dismissal letter prior to appealing his dismissal. Davis, 882 F.2d at 975. Brown further argued that due process was denied because: 1) he had only seven days' notice of the hearing as a result of delays in mail delivery; and 2) his request to postpone so as to give him adequate time to prepare was denied. The summary judgment evidence shows that the request was denied because other physicians with patients The individual defendants also assert that Brown waived his right to complain of a violation of procedural due process because he failed to attend the hearing and to avail himself of the opportunity to be heard. We agree. Brown was informed of the date of the hearing but failed to attend. By failing to appear for the hearing on February 13, 1995, Brown's opportunity to be heard was lost by his own inaction. Stewart v. Bailey, 556 F.2d 281, 285-86 (5th Cir.1977). Thus, under the authorities cited above, we hold that Brown's constitutional rights to procedural due process were not violated.

and obligations were involved in the hearing. Furthermore, Brown admitted that he received the notice of the hearing January 30, 1995, fourteen days before the hearing. There is no constitutional requirement that an appeal hearing be held on a certain date or on a date more convenient for the...