In The
Court of Appeals
For The
First District of Texas
NO. 01-00-01135-CV
HELEN LI, M.D., Appellant
V.
THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON; HERMANN EYE CENTER; HOUSTON EYE ASSOCIATES; RICHARD S. RUIZ, M.D., IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; AND PAUL C. SALMONSEN, M.D., IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, Appellees
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 99-31418
O P I N I O N
Appellant, Dr. Li, appeals the trial judge's order granting summary judgment in favor of appellees, The University of Texas Health Science Center at Houston ("the University"), Houston Eye Associates ("Associates"), Hermann Eye Center ("Eye Center"), and Doctor Ruiz and Salmonsen (together, "Drs. Ruiz and Salmonsen"), on her breach of contract claim. We affirm.
Facts and Procedural History
From September, 1990 to June, 1991 Dr. Li participated in an ophthalmology fellowship in conjunction with Eye Center and the University. The fellowship program was conducted in part at Eye Center, a professional association of ophthalmologists. All of the doctors at Eye Center are part of Associates, a private professional association of doctors. Doctor Salmonsen, a doctor at Associates, was a faculty member of the Department of Ophthalmology at the University and Dr. Li's preceptor. A preceptor allows the fellow to work with him by observing and participating in the preceptor's practice.
After completing the fellowship, Dr. Li received a certificate of completion that did not bear the official University seal. Dr. Ruiz, the chairman of the University's Department of Ophthalmology, refused to grant a certificate with the seal because Dr. Li had not complied with the 75% mandatory attendance at departmental conferences. Doctor Li presented summary judgment evidence showing that other doctors in the fellowship program who, like her, had failed to meet the attendance requirement had been issued certificates with the University seal.
Doctor Li's first lawsuit alleged a breach of contract claim against the University, Associates, Eye Center, and Drs. Ruiz and Salmonsen. Doctor Li amended her original petition by adding civil rights claims concerning violations of due process and by dropping her breach of contract claim against Associates, Eye Center, and Drs. Ruiz and Salmonsen in their individual capacities. Both Associates and Eye Center filed summary judgment motions, which were granted. The University filed a plea to the jurisdiction for itself and on behalf of Drs. Ruiz and Salmonsen, in their individual and official capacities. The trial judge granted the plea to the jurisdiction and dismissed Dr. Li's claims with prejudice.
The Fourteenth Court of Appeals affirmed the judgements for Associates and Eye Center, and it affirmed the judgment against the University, after modifying the judgment to a dismissal without prejudice. See Li v. Univ. of Texas Health Sci. Ctr. at Houston, 984 S.W.2d 647, 652-54 (Tex. App.--Houston [14th Dist.] 1998, no pet.) ("Li I"). The Fourteenth Court of Appeals modified the judgment against the University because the University had sovereign immunity from suit; therefore, the trial court lacked subject matter jurisdiction to adjudicate Dr. Li's claims against the University, and the Fourteenth Court of Appeals modified the judgment to dismiss Dr. Li's claims versus the University without prejudice. Doctor Li did not appeal The Fourteenth Court of Appeals's decision, and that decision became final. Instead, Dr. Li obtained legislative consent to sue the University. The Texas Legislature waived the State's and the University's sovereign immunity from suit in a resolution that provided:
Doctor Li is granted permission to sue the State of Texas and The University of Texas Medical School at Houston . . . for the official certificate of completion of the fellowship program and for no other monetary or other damages . . . .
Tex. S. Con. Res. 3, 75th Leg., R.S., 1997 ("legislative resolution").
In 1999, Dr. Li filed this lawsuit against Associates, Eye Center, the University, and Drs. Ruiz and Salmonsen, in their individual and official capacities, asserting the same facts and a breach of contract claim that she had previously pleaded in Li I. In the current case, appellees Associates and Eye Center sought summary judgments based on the affirmative defenses of limitations, res judicata, and collateral estoppel. The University and Drs. Ruiz and Salmonsen sought summary judgment based on limitations, res judicata, official immunity, and in addition, on the ground that Dr. Li had admitted she had breached the alleged contract. The trial judge granted summary judgment for all defendants without stating her reasons.
ANALYSIS
A rule 166a(c) summary judgment for a defendant is proper only when the defendant negates at least one element of the plaintiff's theory of recovery or pleads and conclusively establishes each element of an affirmative defense. See Tex. R. Civ. P. 166a(c); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Turnage v. JPI Multifamily, Inc., 64 S.W.3d 614, 617 (Tex. App.--Houston [1st Dist] 2001, no pet.). Because the summary judgment order did not specify the grounds upon which it was granted, we will affirm the judgment if any ground has merit. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
- Doctor Li's Claims Against the Private Defendants (1)
In all three points of error, Dr. Li contends that the trial judge erred in granting summary judgment in favor of Associates, Eye Center, and Drs. Ruiz and Salmonsen in their individual capacities because they did not prove all elements of their affirmative defense of res judicata as a matter of law.
Res judicata precludes the re-litigation of claims that have been adjudicated. See Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). In order to prevail on the affirmative defense of res judicata, Associates, Eye Center, and Drs. Ruiz and Salmonsen had to show (1) a prior final judgment on the merits by a court of competent jurisdiction, (2) identity of parties, and (3) a second suit based on the same facts. See id.
The parties and the facts are clearly the same. See Li I, 984 S.W.2d at 650-51. As to the first element of res judicata, Dr. Li contends the earlier judgment was not an adjudication on the merits of the contract claim. Rather, she contends the contract claim was dismissed on jurisdictional, i.e., sovereign immunity, grounds. We disagree, in respect to Dr. Li's contract claim against the private, non-governmental defendants. Those defendants (Associates, Eye Center, and Drs. Ruiz and Salmonsen in their individual capacities) had no sovereign immunity because none of them is a sovereign. Therefore, the dismissals with prejudice they won in Li I could only have been on the merits. This is confirmed both by The Fourteenth Court of Appeals's opinion and by Dr. Li's brief to that court. Doctor Li's brief complained only of the trial court's order dismissing the "State Defendants" with prejudice. This error was harmful, Dr. Li argued and The Fourteenth Court of Appeals agreed, because after the trial judge's ruling in Li I, Dr. Li had obtained legislative consent to sue the State, but was prevented from doing so by the "with prejudice" language. Thus, Dr. Li argued that the trial judge in Li I erred "by dismissing with prejudice (her) contract cause of action as it pertained to the State Defendants." (Emphasis added.) The Fourteenth Court of Appeals was obviously referring to the contract claim against only the "State Defendants" when it modified the language of the dismissal from "with prejudice" to "without prejudice." Id. at 654. The Li I court discussed the University's plea to the jurisdiction, which was based solely on sovereign immunity, and it discussed no doctrine except sovereign immunity. We conclude that the only claims modified and dismissed without prejudice by The Fourteenth Court of Appeals were the claims against the "State Defendants" that had been dismissed because of sovereign immunity from suit.
Because the private defendants had no sovereign immunity, The Fourteenth Court of Appeals's modification did not affect the trial judge's rulings in their favor. The Fourteenth Court of Appeals affirmed those judgments with prejudice and without modification. Because they have become final judgments on the merits of the same dispute, they constitute a bar to re-litigation of that dispute, again, in this case. See Amstadt, 919 S.W.2d at 652.
We overrule that portion of Dr. Li's first point of error, and we overrule her second and third points of error.
B. The University and Drs. Ruiz and Salmonsen in Their Official Capacities (2)
In the remaining portion of her first point of error, Dr. Li argues that the trial judge erred by granting summary judgment for the State Defendants. Doctor Li includes the University and Drs. Ruiz and Salmonsen, in their official capacities, as State Defendants. We disagree.
1. Drs. Ruiz and Salmonsen, in Their Official Capacity
As to the Dr. Li's claim against Drs. Ruiz and Salmonsen in their official capacities, that cause of action is not barred by res judicata. We construe The Fourteenth Court of Appeals's ruling as affirming a dismissal without prejudice, based on sovereign immunity from suit, for all the State Defendants, including Drs. Ruiz and Salmonsen in their official capacities. Because a dismissal for lack of jurisdiction is not a ruling on the merits, it cannot constitute a res judicata bar. Nevertheless, Dr. Li still cannot sue Drs. Ruiz and Salmonsen in their official capacities because the legislature did not permit that. Such a claim is barred by sovereign immunity from suit. Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (Vernon 1997).
- The University
Doctor Li argues that the University did not show that it was entitled to judgment as a matter of law on her contract claim. We disagree.
Doctor Li contends that a document entitled "Fellowship Certification Requirements" constituted her contract with the University. Assuming this document constituted a contract, Dr. Li cannot prevail because she breached it. The document provided, "Fellows must actively attend and participate in the . . . program . . . . The fellow is expected to attend a minimum of 75% of all lectures and conferences. . . . Failure to attend the required number of conferences will likely result in ineligibility for a certificate from the University." (Emphasis in the original.) Doctor Li admitted she attended only 42% of the conferences. See Southwell v. Univ. of the Incarnate Word, 974 S.W.2d 351, 358 (Tex. App.--San Antonio 1998, pet. denied) (a student who fails to meet degree requirements does not get a degree); Cadle Co. v. Castle, 913 S.W.2d 627, 636 (Tex. App.--Dallas 1995, writ denied) (discussing that a condition precedent must be satisfied before a right can accrue to enforce an obligation).
Doctor Li's affidavit stated that seven other fellows in the same program at the same time attended far fewer lectures and conferences than she, but they were still awarded a sealed certificate. Doctor Li named the seven fellows and stated the percentage of conferences and lectures each attended, which ranged from a high of 24% to a low of 3%. Her affidavit gave no source for this data, other than to say she had personal knowledge of such facts, which would have been hard to come by if, as Li admitted, she had been absent 58% of the time. Assuming this statement is true, Dr. Li cites no case holding that one who, like her, breaches a contract is entitled to the remedy of specific performance.
Nor is Dr. Li entitled to money damages for breach of contract. She contends the legislative resolution allows money damages because if the legislature intended to bar all damages, the resolution would not have said, ". . . Dr. Li is granted permission to sue . . . for no other monetary damages or other damages . . . ." (Emphasis added.) Instead, Dr. Li contends the legislature would have said, "Doctor Li is granted permission to sue for no monetary or other damages." Even if that was the legislature's intention, it did not express it clearly. We will not lightly infer such a waiver of immunity from liability. Such a waiver must be explicit, not implied, and in this case, it is not explicit. Tex. Civ. Prac. & Rem. Code Ann. § 101.025; Sparks v. Texas So. Univ., 824 S.W.2d 828, 830 (Tex. App.--Houston [1st Dist.] 1992, no writ).
We overrule the remaining portions of Dr. Li's first point of error.
We affirm the judgment.
Murry B. Cohen
Justice
Panel consists of Justices Cohen, Nuchia, and Price. (3)
Do not publish. Tex. R. App. P. 47.
1. In all three points of error, Dr. Li complains that the trial judge erred in
granting a motion for summary judgment on her causes of action for breach of
contract and tortious interference with a contract. However, after a review of the
appellate record, the lone amended petition in the record contains only a breach of
contract cause of action. Thus, we cannot consider Dr. Li's tortious interference
claim. 2. For this portion of the opinion, "the State Defendants" will encompass the
University of Texas at Houston Medical School, as well as Drs. Ruiz and Salmonsen
when referred to collectively. Because the doctors were sued in their official
capacity, the suit against them is a suit against the State of Texas. 3. The Honorable Frank C. Price, former Justice, Court of Appeals, First District
of Texas at Houston, participating by assignment.