Hill v. TX-AN Anesthesia Mgmt., LLP

• Decision Date: 25 August 2014
• Docket Number: No. 05–13–00641–CV.,05–13–00641–CV.
• Citation: 443 S.W.3d 416
• Parties: Jerron C. HILL, M.D., individually, and Jerron C. Hill, M.D., P.A., Appellants v. TX–AN ANESTHESIA MANAGEMENT, LLP, M2 Healthcare Services, LP, and Anesthesia Business Consultants, Appellees.
• Court: Texas Court of Appeals

443 S.W.3d 416

Jerron C. HILL, M.D., individually, and Jerron C. Hill, M.D., P.A., Appellants

v.TX–AN ANESTHESIA MANAGEMENT, LLP, M2 Healthcare Services, LP, and Anesthesia Business Consultants, Appellees.

No. 05–13–00641–CV.

Court of Appeals of Texas, Dallas.

Aug. 25, 2014.

Anthony P. Griffin, Galveston, for Appellants.

W. Stephen Cockerham, Christopher D. Kratovil, Dallas, for Appellees.

Before Justices FILLMORE, EVANS, and LEWIS.

OPINION

Opinion by Justice LEWIS.

Appellants Jerron C. Hill, M.D., individually, and Jerron C. Hill, M.D., P.A. appeal the trial court's grant of summary judgment in favor of Tx–An Anesthesia Management, LLP, M2 Healthcare Services, LP, and Anesthesia Business Consultants. Appellants complain, in three issues, that the trial court erred in granting summary judgment because appellees failed to prove that all of appellants' claims were compulsory counterclaims barred by res judicata. Appellants also complain that appellees waived the right to assert res judicata. Because we determine that all of appellants' claims are barred, we affirm the trial court's judgments.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Jerron C. Hill, M.D. (Hill) is an anesthesiologist who practices under the professional association name of Jerron C. Hill, M.D., P.A. (P.A.). Appellee Tx–An Anesthesia Management, LLP (Tx–An) provides practice management services to its anesthesiologist partners and other anesthesiologists who contract with Tx–An. These services include scheduling, billing, collection, and other management services. In 2001, Tx–An entered into a contract with M2 Healthcare Services, LP (M2) to provide billing and collection services to Tx–An partners. Anesthesia Business Consultants (ABC) provides backroom billing and administrative support to M2 and other related companies.

Hill became associated with Tx–An in 2002; P.A. became a partner of Tx–An in 2005. Pursuant to the terms of the Tx–An partnership agreement, P.A. agreed to have its billing and collections performed by M2. In 2008, ABC began implementing a new billing and collection software system to bill and collect charges for its various clients, including Tx–An. Each Tx–An physician was transitioned to the new system individually. In September 2009, M2 began P.A.'s transition and experienced computer difficulties. Hill complained that his billings were not being timely processed by Tx–An and M2. Although efforts were made to resolve P.A.'s billing issues, Hill was not satisfied and did not want to continue using M2 for billing and collection services.

On May 27, 2010, Hill filed suit against Tx–An, M2, and ABC, alleging claims for breach of contract against all defendants for failing to process Hill's billings in a timely manner, breach of fiduciary duty against Tx–An for failing to disclose a second agreement with M2 whereby certain Tx–An partners would receive 20% of the net proceeds of any sale of M2, fraud against M2 and ABC for making misrepresentations to Hill about the billing issues, and fraud against Tx–An for failing to disclose its second agreement with M2. The suit was filed in the 95th Judicial District Court for Dallas County (First Suit). Tx–An filed an answer and counterclaim against Hill, alleging breach of fiduciary duty by Hill. M2 and ABC filed answers and counterclaims for sanctions and attorney's fees. On March 2, 2011, with motions for sanctions pending against him, Hill filed a pro se motion for nonsuit. On March 12, 2011, the trial court signed an order granting Hill's motion for nonsuit; the order stated it did not dispose of all claims and all parties.

On May 26, 2011, P.A. was expelled from the Tx–An partnership. Approximately one week later, Hill filed a second lawsuit against Tx–An, M2, and ABC, alleging the following claims: (1) breach of partnership agreement against Tx–An for failing to allow Hill to inspect financial documents of the partnership; (2) breach of fiduciary duty against Tx–An for failing to allow a proper accounting, failing to disclose agreements with M2, and entering into a civil conspiracy with M2 to deny Hill's right to an accounting associated with Hill's billings; (3) civil conspiracy and fraud against all defendants for making false statements about billing problems; (4) breach of contract against Tx–An for illegally terminating Hill's partnership rights and expelling Hill from the partnership; (5) breach of contract against M2 and ABC for breaching their duty to properly and timely submit Hill's billings and resolve complaints; (6) violation of public policy against all defendants because the contract between Tx–An and M2 assigned away Hill's rights and compelled Hill to use M2 to do his billing; and (7) disparate treatment against Tx–An for terminating Hill's partnership rights because Hill was the only African–American in the partnership and the only partner expelled for complaining about billing problems. Hill sought actual and exemplary damages, a partnership accounting, and declaratory judgments¹ that Hill was entitled to inspect the books and papers relating to billing done on his behalf, and that certain provisions of the contract between Tx–An and M2 violated public policy. This suit was filed in the 192nd Judicial District Court for Dallas County (Second Suit). Hill then filed a motion with the 192nd Judicial District Court to consolidate the First and Second Suits for further proceedings in that court. Hill did not file the motion to consolidate with 95th Judicial District Court. The motion was never scheduled for hearing by the 192nd Judicial District Court, and that court did not rule on it.

On July 1, 2011, Hill filed a first amended petition with the 192nd Judicial District Court, adding P.A. as a plaintiff. The first amended petition also revised the civil conspiracy claim against all defendants by deleting the allegations of fraud and adding allegations of tortious interference in appellants' business relationship with insurance companies, Medicare, and Medicaid, and their fiduciary relationship with Tx–An. The first amended petition also deleted the disparate treatment claim against Tx–An. On November 5, 2012, Hill and P.A. filed a second amended petition, revising their civil conspiracy claim to add more examples of alleged misrepresentations by the defendants, and revising the damages provision to include a demand that all of the partners of Tx–An be found jointly and severally liable for expelling appellants from the partnership. On February 13, 2013, Hill and P.A. filed their third amended petition, adding aiding and abetting allegations to their claims of breach of fiduciary duty against Tx–An, and civil conspiracy against all defendants. Hill and P.A. alleged that the defendants aided and abetted each other in denying appellants the records they sought. The third amended petition also added a new section titled “Collateral Estoppel & Objection” in which Hill and P.A. alleged that because counsel for the defendants opposed combining the actions in the 192nd Judicial District Court and the 95th Judicial District Court, they should be collaterally estopped from asserting the affirmative defense of res judicata.

On July 9, 2012, over a year after the Second Suit was filed, the First Suit was tried to a jury, and the jury found in favor of Tx–An on its breach of fiduciary duty claim against Hill. The trial court heard Hill's motion for judgment notwithstanding the verdict and granted the motion, setting aside the jury's verdict in favor of Tx–An, and denying all other relief requested and not specifically granted or denied. On August 7, 2012, the trial court signed a final judgment which disposed of all parties and all claims.

On January 10, 2013, Tx–An filed a traditional and no evidence motion for summary judgment in the Second Suit. M2 and ABC also filed traditional and no evidence motions for summary judgment. In their traditional motions for summary judgment, Tx–An, M2, and ABC asserted that all of the claims alleged by Hill and P.A. in the Second Suit were barred by res judicata or the compulsory counterclaim rule because the trial court in the First Suit made a final determination on the merits with respect to the same claims between the same parties. Hill and P.A. filed their response and the trial court conducted a hearing. On February 15, 2013, the trial court signed an order granting Tx–An's traditional motion for summary judgment, and a separate order granting M2 and ABC's traditional motion for summary judgment. Hill and P.A. filed a motion to modify final judgments which was overruled by operation of law. Hill and P.A. now appeal.

II. STANDARD OF REVIEW

We review the granting of a summary judgment de novo. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010) ; Beesley v. Hydrocarbon Separation, Inc., 358 S.W.3d 415, 418 (Tex.App.-Dallas 2012, no pet.). In a traditional motion for summary judgment, the moving party has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c) ; see also Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). Where a defendant moves for summary judgment on an affirmative defense, it must prove all the essential elements of its defense as a matter of law. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996) (per curiam); Van Voris v. Team Chop Shop, LLC, 402 S.W.3d 915, 918 (Tex.App.-Dallas 2013, no pet.). Once the defendant establishes a right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment.

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex.1979) ; Wesby v. Act Pipe & Supply, Inc., 199 S.W.3d 614, 617 (Tex.App.-Dallas, no pet.). An appellate court must take as true evidence favorable to the nonmovant, indulge every reasonable inference from the evidence...