Gillum v. Republic Health Corp., 05-88-01267-CV

• Citation: 778 S.W.2d 558
• Decision Date: 11 September 1989
• Docket Number: No. 05-88-01267-CV,05-88-01267-CV
• Parties: Randolph R. GILLUM, D.O., Appellant, v. REPUBLIC HEALTH CORP. d/b/a Mesquite Physicians' Hospital, et al., Appellees.
• Court: Court of Appeals of Texas

Page 558

778 S.W.2d 558

Randolph R. GILLUM, D.O., Appellant, v. REPUBLIC HEALTH CORP. d/b/a Mesquite Physicians' Hospital et al., Appellees.

No. 05-88-01267-CV.

Court of Appeals of Texas,

Dallas.

Sept. 11, 1989.

Todd E. Marshall, Dallas, Edward A. McConwell, Overland Park, Kan., for appellant.

Charles W. Cunningham, Jennifer R. Brandeis, Dallas, for appellees.

Before WHITHAM, LAGARDE and KINKEADE, JJ.

OPINION

LAGARDE, Justice.

Randolph R. Gillum, D.O., appeals from a summary judgment in favor of the Republic Health Corporation of Mesquite d/b/a Mesquite Physician's Hospital (MPH) and Republic Health Corporation (the hospital) (collectively referred to as "Republic"), James McAtee, James E. Buncher, James Van Devender, Le Roy ¹ A. Pesch, Michael E. DeBakey, ² and David T. Vandewater (collectively referred to as appellees). In seven points of error, Gillum contends that the trial court erred in granting summary judgment in favor of appellees. We disagree and, accordingly, affirm the trial court's judgment.

Gillum, a doctor of osteopathic medicine with a specialty of surgery, had been involved in the practice of medicine for over twenty-five years at MPH. In addition, Gillum was a cofounder of the MPH and was a party to the sale of the MPH in 1978 to a nonprofit corporation established by the City of Mesquite, Texas. On or about November 30, 1984, through the nonprofit corporation, the City of Mesquite caused MPH, to be sold ³ to Republic. Subsequent to the sale of MPH, Gillum and Republic had a series of disagreements regarding the organization and administration of the hospital and the service provided to the patients.

In his third amended petition, Gillum asserted that Republic owed Gillum a duty to maintain a level of care to Gillum's patients equal to or greater than that of the community. Gillum alleged that this duty arose from a fiduciary relationship existing between Gillum and Republic. In addition, Gillum alleged causes of action against Republic based on breach of a fiduciary duty, negligence in performing its duty, breach of express and implied contract, fraud, defamation, and tortious interference with contracts of Gillum. Gillum also set forth allegations of individual liability against McAtee, Buncher, Devender, Pesch, DeBakey, and Vandewater, as officers and members of the board of directors of Republic.

On October 20, 1987, Republic filed a motion for summary judgment. The trial court held that the causes of action set forth by Gillum were insufficient as a matter of law to form the basis of an action against Republic and entered a take-nothing judgment on May 6, 1988 (the summary judgment). Because Gillum believed liability of the remaining appellees was dependent upon the same underlying issues raised by the evidence submitted in support of, and in opposition to, the summary judgment entered in favor of Republic, all parties to the suit agreed that a final judgment "be entered in order that litigation can become final for the purposes of appeal." Judgment was rendered on September 22, 1988 (the final judgment).

Appellees contend that because Gillum not only drafted the final judgment, but also "approved [the judgment] as to form and substance," Gillum is now foreclosed from contesting the judgment as to all of the appellees. In response, Gillum argues that the agreement regarding the final judgment was, in fact, a contract, and appellees should be required to abide by the contract as expressed in the final judgment and allow Gillum to appeal the judgment rendered in favor of the appellees. See generally Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (Tex.1956). Thus, Gillum maintains that appellees should be sanctioned if they fail to abide by the contract.

It is a well settled principle of law that a party cannot appeal from or attack a judgment to which he has consented or agreed absent an allegation and proof of fraud, collusion, or misrepresentation. See Hosey v. First Nat'l Bank, 595 S.W.2d 629, 630 (Tex.Civ.App.--Corpus Christi 1980, writ dism'd), citing Dunman v. Hartwell, 9 Tex. 495 (Tex.1853). The rationale of such a rule is that a party will not be allowed to complain on appeal of an action or ruling which he invited or induced. Having consented to this action of the court in entering judgment, he thereby waives all errors committed or contained in the judgment, thus having nothing which could properly be considered by an appellate court, except want of jurisdiction. DeLee v. Allied Finance Co., 408 S.W.2d 245, 247 (Tex.Civ.App.--Dallas 1966, no writ), citing Posey v. Plains Pipe Line Co., 39 S.W.2d 1100, 1100-01 (Tex.Civ.App.--Amarillo 1931, no writ).

Gillum is correct when he states that a consent judgment is contractual. When a consent judgment imposes duties or obligations on the parties, and where a party fails to fully comply with the obligations of the judgment, the other party may seek to enforce the contractual obligations. See generally Wagner, 295 S.W.2d at 891-893. However, the contractual obligation Gillum now seeks to enforce is an agreement to appeal, or attack, the judgment, and the rule precluding a party from appealing from an agreed judgment applies regardless of whether the language contained in the agreed judgment purports to preserve any errors or a right to appeal. See Posey, 39 S.W.2d at 1100; see also Braden v. State, 108 S.W.2d 314, 316 (Tex.Civ.App.--Waco 1937, no writ); Pair v. Buckholt, 60 S.W.2d 463, 464 (Tex.Civ.App.--Amarillo 1933, no writ).

In Posey, a consent judgment was entered in favor of the defendant. Although the judgment clearly recited that the consent judgment was "subject to the right of the plaintiff to except thereto and question its validity," the appellate court held that the plaintiff had waived all errors. That court, citing the general rule that a party cannot appeal from a judgment rendered by consent or agreement, concluded that the mere fact that the parties agreed, and the trial court decreed, that an appellate court could review the alleged errors was "in no degree binding" on the appellate court. Id. at 1101. Thus, we conclude that the parties' agreement to enter judgment in favor of the appellees "in order that litigation can become final for purposes of appeal" is not binding on this Court, and consequently, we hold that Gillum cannot appeal the final judgment rendered in favor of the individual appellees. Disagreeing with appellees that the agreed judgment prohibits Gillum from appealing the final judgment as to all of the appellees, including Republic, we hold that Gillum is precluded from attacking the final judgment as to the individual appellees, but not as to Republic. We hold that Republic's liability was determined by the summary judgment, not by the final agreed judgment. Thus, we grant appellees' motion to dismiss the appeal as to the individuals, McAtee, Buncher, Van Devender, Pesch, DeBakey, and Vandewater, and deny their motion to dismiss the appeal as to Republic.

We now return to the merits of Gillum's appeal. The standards for reviewing a summary judgment are:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Hartsough v. Steinberg, 737 S.W.2d 408, 410 (Tex.App.--Dallas 1987, writ denied), quoting Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985). The function of a summary judgment is not to deprive a litigant of his right to a full hearing on the merits of any real issue of fact, but to eliminate patently unmeritorious claims and untenable defenses. Hartsough, 737 S.W.2d at 409, citing Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).

Defendants who move for summary judgment have the burden of showing the trial court as a matter of law that no material issue of fact exists as to the plaintiff's cause of action. Griffin v. Rowden, 654 S.W.2d 435-36 (Tex.1983). This may be accomplished by summary judgment evidence showing that at least one of the elements of the plaintiff's cause of action has been established conclusively against the plaintiff. See Sakowitz, Inc. v. Steck, 669 S.W.2d 105, 108 (Tex.1984). With this standard in mind, we turn to the issues and the summary judgment proof in the present case.

TORTIOUS INTERFERENCE OF A BUSINESS RELATIONSHIP

In his first point of error, Gillum contends that the trial court erred, as a matter of law, in finding that no issue of material fact existed regarding tortious interference of existing and prospective contracts. Gillum maintains that Texas law protects three types of business relationships from tortious interference: (1) contractual relationships; (2) at-will contracts; and (3) prospective business relationships. Gillum argues that he and Republic had an ongoing relationship whereby Gillum performed all of his surgeries at the hospital, thereby generating revenue for Republic; the hospital would, in turn, provide adequate medical care of at least the community standard.

Gillum asserts that after Republic acquired MPH the level of care dropped almost immediately. He asserts that he lost fifty-six patient referrals, upon whom he would have performed surgery, if Republic had maintained the level of health care at the hospital equal to or greater than that of other hospitals in the community. Gillum cites examples evidencing the decline in health care at the hospital:

(1) the hospital nursing staff had been frequently overworked and undertrained;

(2) the hiring and firing policies of the hospital were discriminatory and arbitrary and were calculated to reduce overhead rather than provide adequate care and services, and...