Crosby Memorial Hosp v. Abdallah

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-60329

CROSBY MEMORIAL HOSPITAL,

Plaintiff-Appellee,

versus

HALA MOHAMMED ABDALLAH, MD,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Mississippi
(97-CV-635)

August 13, 2002

Before KING, Chief Judge, and GARWOOD and HIGGINBOTHAM, Circuit
Judges.

PER CURIAM:*

Dr. Hala Mohammed Abdallah (“Abdallah”) appeals the district

court's grant of summary judgment to Crosby Memorial Hospital

*
Pursuant to 5TH CIR. R.47.5 t he Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1
(“Crosby”) on its breach of contract complaint and against her on

her counterclaims for breach of contract, fraud in the inducement,

breach of the duty of good faith and fair dealing, and tortious

interference with contract and prospective business relations.

Because Abdallah produced enough evidence to survive summary

judgment on the issue of Crosby's promises to help her get a green

card, we reverse the grant of summary judgment on her counterclaim

for fraudulent inducement. Because this fraud may also serve as a

defense to breach of contract, we reverse the summary judgment

granted on Crosby's breach of contract action. We affirm the

summary judgment, however, as to all other arguments raised by

Abdallah. Finally, we reject Abdallah's appeal of the district

court's order striking the legal conclusions in the affidavit of

her expert witness.

Background

Dr. Hala Mohammed Abdallah, a citizen of Jordan, came to the

United States in 1987. After she completed a residency in

pediatrics, she was contacted by Glenn Lowery, an administrator

with Crosby Memorial Hospital in Picayune, Mississippi who was

attempting to recruit a pediatrician to that relatively rural area.

When Abdallah met Lowery, he explained that Picayune was in a

designated health care professional shortage area, which suggested

that practicing medicine there would allow Abdallah to receive a

waiver of the two-year foreign residency requirement otherwise

2
applicable to graduate medical students in the United States under

a J-1 visa. Lowery added that he would help Abdallah obtain her

green card and told her he had similarly helped other physicians in

the past.

On July 28, 1994, Abdallah and Crosby Memorial Hospital

entered into a contract titled a “Net Income Guarantee Agreement.”

Under the terms of the contract, Crosby would guarantee Abdallah a

salary of $140,000 a year for two years by loaning her a subsidy

equal to the difference between that amount and her “net practice

income.” “Net practice income” was defined in the contract as gross

collections minus reasonable professional expenses; “reasonable

professional expenses” was defined with reference to the IRS

guidelines and a non-exclusive list of permissible expenses. The

definition of “reasonable professional expenses” then specified

that notwithstanding the above rule, any money expended as purchase

price, rental or lease on depreciable property would be disallowed

as a “reasonable expense” to the extent it exceeded $10,000

annually. The contract then specified that this loan of income

assistance would be forgiven if Abdallah continued to practice

full-time for an additional two years. If she didn't, she would

have to repay the subsidy over twelve months. Moreover, Abdallah

would have only three months to repay under certain enumerated

circumstances, one of which was if her “medical staff privileges at

hospital [were] terminated in accordance with the hospital's

3
medical staff bylaws.” In contrast, Abdallah could only terminate

the contract if Crosby violated its duties to pay subsidy.

In addition to this income subsidy loan, the contract provided

that the hospital would “reasonably” assist Abdallah in setting up

her office, hiring personnel, setting up accounting records, and

marketing her practice, though the contract reiterated that the

“primary” responsibility for the practice remained on Abdallah.

Another section of the contract specified that Abdallah was to be

considered an “independent contractor” with her own unfettered

judgment concerning the care of her patients. Similarly, the

contract notes that Abdallah was not obligated to admit her

patients to Crosby. Finally, the contract explicitly states that

it is the entire agreement between Abdallah and the hospital, and

that it supersedes any other oral or written agreements.

After signing the agreement, Abdallah and her family moved to

Picayune where they purchased a home, rented a temporary office,

and built an office facility for her clinic. When she began

practicing full-time in Picayune, Abdallah's practice operated at

a net practice loss, requiring substantial subsidy payments. She

alleges the hospital did not assist her as required by the contract

even though she submitted the required monthly accounting reports.

In light of her difficulties, Abdallah bristled that the hospital

continued to attempt to recruit doctors to the area. Abdallah also

discovered that although there was only one other pediatrician in

4
town, she faced competition from family practitioners who did some

pediatrics. Moreover, Abdallah's pursuit of a green card also

failed. During 1995, Lowery wrote letters and contacted government

officials in an apparent attempt to assist Abdallah with her

application for permanent resident status. These attempts were

unavailing because Abdallah could only receive a waiver of the

foreign residency requirement if she were directly employed by a

hospital under a three-year contract, and Crosby declined to alter

the Net Income Guarantee Agreement.

In June 1996, Crosby hired the Horne CPA Group to examine

Abdallah's records and expenses under the Net Income Guarantee

Agreement. The CPA examined the clinic's records and practices and

reported that the hospital had overpaid Abdallah by $63,795.73 due

to “understated cash receipts and overstated operating expenses.”

The CPA acknowledged his report could not meet generally accepted

auditing standards and advised a total reconstruction of Abdallah's

accounting records and receivables. Upon receiving this report,

Lowery wrote a letter to Abdallah detailing Crosby's concerns and

asking for her cooperation in achieving the recommended audit.

Crosby then suspended the remaining two-and-a-half months of income

subsidy payments until this accounting was completed.

An independent audit by Abdallah's financial expert,

Northshore Financial Services, ultimately determined that Abdallah

had been underpaid by $47,510.13. In arriving at this number, the

5
analyst deducted all business expenses allowed by the IRS without

applying the $10,000 cap on expenditures on depreciable assets

contained in the contract. Abdallah demanded the withheld

subsidies and a per-hour salary for the time she had spent on call

at the hospital, but Lowery refused to pay the subsidies or release

her from the on-call requirements in the contract. On March 6,

1997, Abdallah wrote the Chief of Staff at Crosby announcing her

resignation from staff privileges at Crosby. Because a termination

of staff privileges was one of the enumerated circumstances in

Article V permitting Crosby to terminate the contract, Crosby did

just that and demanded full repayment of the subsidy.

On August 27, 1997, Crosby filed suit in Mississippi state

court against Abdallah alleging that she had breached the Net

Income Operating Agreement. Abdallah timely removed to federal

court and counterclaimed for breach of contract, fraud,

misrepresentation, breach of the duty of good faith and fair

dealing, tortious interference with contract, and tortious

interference with prospective business relations. During

discovery, the District Court entered an agreed order appointing an

independent accounting firm to audit Abdallah's records. This CPA,

Kenneth Lefoldt, made minor adjustments to the audit provided by

Abdallah's accountants, applied the $10,000 cap on depreciable

property, and concluded that Abdallah was overpaid by $53,525.80.

Crosby moved for summary judgment on its breach of contract

6
claim, and soon thereafter moved for summary judgment on Abdallah's

counterclaims. After Abdallah filed her responses, Crosby moved to

strike the affidavit of Abdallah's expert, Paul A. Harris, on the

grounds that it introduced parol evidence regarding an unambiguous

contract and violated Rule 702 and 704 because it expressed a legal

conclusion. On June 24, 1999, the district court struck those

portions of Harris's affidavit that were legal conclusions. The

same day, the district court granted summary judgment to Crosby on

all points, dismissed the case with prejudice and ordered Abdallah

to pay all amounts required by the contract including the subsidy

payments and Crosby's attorneys' fees. On March 26, 2001, the

district court entered an order setting the total amount as

$352,041.95. The present appeal followed.

Discussion

I. Breach of Contract

The majority of the parties' arguments in this case concern

the breach of the Net Income Guarantee Agreement. Crosby argues

that Abdallah breached the agreement by resigning her staff

privileges at the hospital and moving her practice to Slidell,

Louisiana. Under the agreement, this would definitely be a breach

of contract. Article V of the contract lists circumstances under

which Crosby could terminate the contract; one of these

circumstances was if Abdallah's medical staff privileges at Crosby

were terminated in accordance with the Hospital's medical staff

7
bylaws. Abdallah submitted a resignation of her staff privileges,

and she does not dispute that Crosby's termination of her

privileges was done according to the bylaws. Thus, under Article

V Abdallah is “required to repay Hospital within three (3) months

the sum of all subsidy advances . . . .” Crosby was entitled to

repayment of the subsidies it had paid, and Article XI gives it the

right to recoup its attorneys' fees in an enforcement action.

Abdallah makes numerous arguments as to why she did not breach

the contract, which we shall address in turn. This court reviews

both grants of summary judgment de novo, reviewing all evidence in

the light most favorable to non-movant Abdallah. Lee v. E I

Dupont De Nemours & Co., 249 F.3d 362, 364 (5th Cir. 2001). In

doing so, this court looks to the substantive law of Mississippi.

Id. The district court's interpretation of a contract is a

question of law this court should review de novo. Ham Marine, Inc.

v. Dresser Indus., Inc., 72 F.3d 454, 458 (5th Cir. 1995). The

same is true for the district court's decision whether the contract

is ambiguous. Id. If the contract is determined to be ambiguous,

however, the intent of the parties is a question of fact. Id.

A. Ambiguity of the Contract

Abdallah claims that the contract language is ambiguous, and

that under Mississippi law an ambiguous contract should be

submitted to a jury for interpretation. We generally agree with

this statement of Mississippi law, see Pursue Energy Corp. v.

8
Perkins, 558 So. 2d 349 (Miss. 1990), but we conclude that the

contract is not ambiguous.

1. The Subsidy Provisions Are Clear

Abdallah first argues that the contract is ambiguous because

the Agreement's formula for calculating the subsidy is unclear.

She argues that key terms like “net practice income” and

“reasonable professional expenses” are not adequately defined and

further claims that the contract's reference to the “technical” IRS

regulations renders the contract unclear. She also suggests that

because the three auditors arrived at different conclusions, the

rules for calculating the subsidy must be ambiguous. We disagree

with Abdallah on all points. The contract describes the meaning of

its key terms in painstaking detail. The fact that those

definitions are rendered with reference to the IRS regulations does

not introduce ambiguity; the complexity of the IRS regulations

increases the clarity of the contract by providing a wealth of

guidelines and examples for the parties to rely upon.

We also disagree that the fact that three auditors each came

to different results reflects poorly on the clarity of the

contract. Abdallah has not provided evidence that the variance

between the audits can be attributed to ambiguity in the text

rather than variances in the reconstruction of her recordkeeping.

She claims the experts disagree over the meaning of the contract

because they dispute whether “rent” was a permissible expense. Her

9
argument fails because the contract is simply not ambiguous on this

point. The contract very clearly allows rent as a “reasonable

business expense,” but just as clearly limits Crosby's liability

for rent on depreciable property to $10,000 per year. Abdallah has

not explained why the office building she rents to herself is not

“property wherein depreciation is allowable under I.R.S. Code

Section 167.”

2. There Is No Conflict Between Articles V and VIII

Abdallah next purports to find ambiguity in the alleged

conflict between her Article V obligation to maintain staff

privileges at Crosby and her Article VIII power to admit her

patients at other hospitals. We find no conflict between these

provisions. The freedom to admit patients to other hospitals

coexists well with the contract's limited requirement that Abdallah

maintain the option to admit patients at Crosby. This argument

fails as well.

3. There Is No Conflict Between Articles IV and V

Abdallah then claims that the contract is ambiguous because

Article V only allows her to terminate the contract if Crosby

violates Article I, II or III. Article IV, the article concerning

Crosby's duty to assist Abdallah in establishing her practice, is

not listed as a reason for Abdallah to terminate the contract.

Abdallah believes this raises questions about the meaning of

Article IV that amount to ambiguity. We disagree. A violation of

10
Article IV is still a breach of contract, even though Article V

prevents Abdallah from rescinding the contract as a remedy for that

breach. See J.O. Hooker & Sons, Inc. v. Roberts Cabinet Co., Inc.,

683 So. 2d 396, 403 (Miss. 1996) (distinguishing breach of

contract, which confers the right to sue for damages, from a

material breach conferring the right to terminate). Article IV has

meaning and purpose, and thus the careful choice to omit Article IV

from Article V introduces no ambiguity into the contract.

4. Abdallah's Move to Slidell Was Not Briefed And Is
Moot

Abdallah's final argument concerning ambiguity relates to the

requirement that she remain in practice for an additional twenty-

four months to receive the loan forgiveness promised in Article II.

The “Witnesseth” and “Statement of Fact and Intent” portions of the

contract contain references to Pearl River County and the

“surrounding communities” in the “Hospital's service area,” but

those sections make clear the parties contemplated that Abdallah

would establish and maintain her practice in Pearl River County,

Mississippi. Similarly, Article I (“Moving Expenses”) and Appendix

A (“Relocation Assistance”) state that Abdallah will continue her

practice in Picayune, Mississippi for the additional two year term

or she will become obligated to repay those sums within three

months.

The alleged ambiguity arises from the language of Article II,

which requires Abdallah to remain in practice for another two years

11
to receive forgiveness of her loaned subsidies. Article II only

speaks of “leav[ing] or ceas[ing] full time practice” and does not

specify where that practice must take place. Abdallah argues that

because she moved to Slidell, Louisiana and continued to practice

there full time, and because Slidell is in the same general area as

Pearl River County,1 she arguably did not violate Article II such

that she was required to repay the subsidy. Abdallah testified in

her deposition that she thought she would be able to continue her

practice in Slidell and still serve her patients in Picayune.

Crosby rebuts her argument by claiming Abdallah confessed in her

deposition that her choice to move away from Picayune obligated her

to repay the subsidy, but that is an incorrect reading of the whole

of Abdallah's deposition testimony.

We might be inclined to give weight to Abdallah's argument

except for two countervailing considerations. First, Abdallah

failed to brief this argument on appeal and she did not even raise

this argument in her summary judgment memorandum before the

district court. Arguments not briefed before this court are waived

except in extraordinary circumstances. See United States v.

Martinez, 263 F.3d 436, 438 (5th Cir. 2001); FED. R. APP. P.

28(a)(9)(A). Second, Abdallah breached the contract when she

1
Slidell is about twenty-five miles away from Picayune.
According to Abdallah, the nearest hospital to Picayune (Crosby
excepted) is in Slidell and is about thirty minutes' drive away.

12
resigned her staff privileges and thereby became obligated to repay

the loaned subsidies within three months. It is therefore moot

whether she also became obligated to repay the subsidies because

she moved to Slidell. Though it is difficult to say whether the

language of Article II contains more than a scintilla of ambiguity,

we find no reason to answer that difficult question when the

argument is improperly presented and moot.

We find no ambiguity in the contract and affirm the grant of

summary judgment as to each of those challenges.

B. Breach of the Contract by Crosby

Abdallah also argues that she did not breach the Net Income

Guarantee Agreement because it had been previously breached by

Crosby. She has two separate arguments for why Crosby breached the

agreement before she did.

1. Failure to Assist In Establishing Her Practice

Abdallah claims that Crosby failed to meet its contractual

duties under Article IV of the Net Income Guarantee Agreement,

which obligates Crosby “reasonably to assist Physician in

organizing/setting up Physician's office, ordering supplies, hiring

personnel, setting up accounting records, and marketing/promoting

Physician's practice.” Article IV adds that it “does not absolve

Physician of primary responsibility for the set-up of Physician's

practice.” Abdallah claims that Crosby's failure to assist her

constitutes a material breach of the contract. A material element

13
of the contract is one that is “vital to the existence of the

contract” or “essential.” J.O. Hooker & Sons, Inc. v. Roberts

Cabinet Co., Inc., 683 So. 2d 396, 403 (Miss. 1996). A material

breach of the contract by Crosby could allow the termination of the

contract under Mississippi law. UHS-Qualicare, Inc. v. Gulf Coast

Community Hospital, Inc., 525 So. 2d 746, 756 (Miss. 1987).

Crosby claims that Abdallah provided no summary judgment

evidence whatsoever supporting her assertion that Crosby failed to

assist her as required by Article IV. This assertion appears to be

correct. Abdallah's response to the motion for summary judgment

refers the district court to the deposition testimony of Calvin

Green, but Green clearly testified that he had no knowledge of the

issue. Abdallah does not direct us to any other source of

evidence, either in her briefs or in her otherwise well-cited

memorandum in support of her response to the motion for summary

judgment. We can find no evidence either. Abdallah does not

testify in her deposition that Crosby failed to assist her. The

affidavit of Abdallah's expert Paul A. Harris mentions in passing

that Crosby “ignored” her and demonstrated a “lack of effort,” but

nothing indicates that these assertions were or could have been

made on his personal knowledge and thus cannot suffice as summary

judgment evidence. See FED. R. CIV. P. 56(c). Once Crosby

presented its case for summary judgment, Rule 56(e) prevented

Abdallah from resting on her pleadings and required her to

14
introduce evidence supporting her allegations. See FED. R. CIV. P.

56(e); WRIGHT, MILLER & KANE, FEDERAL PRACTICE & PROCEDURE: CIVIL 3D § 2721

(1998). Abdallah failed to introduce any evidence to support her

allegations, not even a verified pleading. Summary judgment is

proper.

Moreover, Crosby's alleged breach of Article IV could not have

been a “material” breach justifying Abdallah's refusal to perform

under the contract. As we have already discussed, Article V of the

Net Income Guarantee Agreement notoriously failed to list Article

IV as one of the provisions entitling Abdallah to terminate the

contract in case of breach. Article IV cannot be considered

“vital” or “essential” if it was so limited; indeed, the limitation

in Article V seems to make Article IV the very antonym of

“material” as defined in the case law. What's more, Article IV

reiterates that the “primary” responsibility for establishing her

practice remained on Abdallah. It would normally be difficult to

imagine what failings would constitute a “material” breach under

these circumstances, and it is impossible to imagine in this case

because Abdallah has provided no evidence. We therefore affirm

the grant of summary judgment on this issue.2

2. Crosby's Termination of Subsidy Payments

Abdallah also claims that Crosby breached the Net Income

2
As this is not a case concerning the sale of goods under the
U.C.C., we will not consider Crosby's argument regarding the right
to cure.

15
Guarantee Agreement when it refused to pay her subsidies for the

last two and a half months of the contract. Crosby's refusal was

spurred by the report from the Horne CPA Group stating that

Abdallah's records were in disarray, that Abdallah had been

overpaid by tens of thousands of dollars, and that a complete

reconstruction of her records would be necessary. Abdallah argues

that payment of subsidy was calculated on a monthly basis, and

because the $140,000 annual income guarantee was based on net

practice income Crosby should not have withheld the remaining

subsidy payments. That is, because Abdallah might have earned less

than $11,666 in each of the remaining months, Crosby may still have

been obligated to pay subsidy to bring her income up to a total of

$140,000 for that year. Abdallah claims Crosby was not entitled to

withhold subsidies if those future amounts remained undetermined.

The contract calculates the subsidy due by subtracting the

monthly net practice income from $11,666; this payment was

conditioned on Abdallah's delivery of a report containing various

accounting records including net practice income or loss. At the

point when Abdallah claims she was entitled to her subsidy payment,

Crosby had received an expert report explaining that her accounting

lacked the necessary rigor and veracity and that as a result of

Abdallah's errors she had overstated her net practice loss by over

$63,000. In order to be entitled to any subsidy check at all,

therefore, Abdallah would have to provide a report that “swallowed

16
up” that overpayment through a net practice loss of more than

$63,000 since the date of that expert report. Alternately, she

could produce a report correctly accounting for the previous year

and explaining why any remaining overpayment was less than her net

practice loss. There is no evidence that Abdallah provided either.

Provision of the report was a condition precedent to the subsidy

payment, and therefore we find it was not a breach of contract for

Crosby to withhold payment. We affirm the grant of summary

judgment on this point.

Abdallah also argues that Crosby's withholding of the subsidy

payment is an attempt to profit from its own breach in violation of

the principle set forth in UHS-Qualicare, Inc. v. Gulf Coast

Community Hospital, Inc., 525 So. 2d 746 (Miss. 1987). In that

case, a hospital sued its management company because it revised the

hospital budget and raised rates even though the hospital had the

exclusive power to take that step. Id. at 755. The court held

that because the hospital could change the rates itself instantly

and undo the misdeed, the management company's breach could not be

material. Id. at 756. Moreover, the court noted a party must

avoid damage if possible rather than choosing to suffer the damage

and pass the cost along to the other party. Id.

Abdallah claims that Crosby could have prevented the very

problem of which it complained if only it had honored its agreement

to assist her in setting up her practice, and therefore UHS-

17
Qualicare prevents Crosby from suing her for breach of contract.

There are two problems with this assertion. First, as discussed

above Abdallah introduced no evidence that Crosby failed to fulfill

its duties to help her set up her practice. Second, UHS-Qualicare

concerns the highly unusual circumstance where a party can

completely and effortlessly undo the other party's breach after the

fact, while Crosby's ability to establish and oversee Abdallah's

accounting could not provide the same complete, after-the-fact

cure. We therefore reject Abdallah's argument and affirm the

summary judgment on this issue.

II. Fraud In The Inducement

Abdallah asserts that the district court erred in granting

summary judgment on her counterclaim of fraud in the inducement.

She also asserts that the same fraudulent inducement claim should

have prevented the district court from granting summary judgment on

Crosby's breach of contract claim.

Under Mississippi case law, “[a] claim of fraud must satisfy

nine elements: 1) a representation, 2) that is false, 3) that is

material, 4) the speaker's knowledge of its falsity or ignorance of

its truth, 5) the speaker's intent that the hearer act upon it in

the manner reasonably contemplated, 6) the hearer's ignorance of

its falsity, 7) her reliance on its truth, 8) her right to rely

thereon, and 9) her consequent and proximate injury.” American

Income Life Ins. Co. v. Hollins, ___ So.2d ___, 2001 WL 695516 at

18
*6 (Miss. Jun. 21, 2001). The same elements apply both to fraud

generally and fraudulent inducement specifically. See id. Though

Mississippi law requires that each of the elements of fraud be

ultimately proven by clear and convincing evidence, id., summary

judgment should be denied if there are disputed facts that are

material to the fraud determination. See Simmons v. Thompson

Machinery of Mississippi, Inc., 631 So.2d 798, 802 (Miss. 1994).

We will similarly apply the federal standards for summary judgment

to this Mississippi case.

Abdallah's claims of fraudulent inducement arise from two

groups of representations made by Glenn Lowery while the parties

were in contract discussions, which we will address in turn.

A. Green Card

In her deposition, Abdallah testified that Lowery promised he

would help her obtain a green card and told her that he had done so

for other physicians in the past. According to Abdallah, Lowery

specifically noted that Crosby was in a health care professional

shortage area, arguably implying that this fact was relevant to her

ability to obtain a green card through working for Crosby. The

record also contains a letter from Lowery to Secretary of

Agriculture Dan Glickman asking the Department to help Abdallah by

assuming the role of an “interested United States Government

agency” based on the agricultural nature of the Picayune area. The

letter refers Secretary Glickman to sections 10(a)(15)(j) and

19
212(e) of the Immigration and Naturalization Act, codified at 8

U.S.C. § 1101(a)(15)(J) and § 1182(e), which contain the

limitations on the ability to grant such a waiver.

Abdallah argues that Lowery made his promise to “help” her get

a green card in order to fraudulently induce her to sign the Net

Income Guarantee Agreement, and she claims that his letter-writing

efforts were no “help” at all. As discussed below, we agree that

Abdallah introduced sufficient evidence to defend this assertion

against a motion for summary judgment. While Crosby relies on the

merger clause in the Net Income Guarantee Agreement, that clause

cannot prevent Abdallah from asserting her claim of fraudulent

inducement. We address this latter point first.

1. The Merger Clause

Crosby primarily defended against the fraud allegations by

relying on the merger clause in the Net Income Agreement. This

clause, Article XVI, states that the contract is the “entire

understanding” between the parties and that it supersedes any other

agreements, whether oral or in writing. Because Abdallah read and

understood this provision, Crosby argues, she could not have

reasonably relied on any oral statements made outside the four

corners of that contract. The district court apparently agreed.

See Memorandum Opinion at 4, 8.

Our reading of Mississippi case law does not comport with

Crosby's assertion, however. In Brown v. Ohman, 42 So. 2d 209

20
(Miss. 1949), the Mississippi Supreme Court considered a contract

for land challenged on the ground that the seller had fraudulently

induced the buyer; the land had far less merchantable timber on it

than the seller had claimed. Id. at 210. Despite the fact that

the contract stated that both parties were relying on their own

estimate of the value of the property, the court affirmed the

decree ordering the seller to reimburse the buyer. Id. at 211.

The court held that contract recitals of “no reliance” were to be

ignored in cases of fraud and deceit, because the alleged fraud and

deceit may have induced the party to sign the contract containing

the recital. Id. at 213. The court added that clauses stating

that the contract contains “all the terms involved and the

representations made” should be similarly ignored when fraud is

alleged. Id. Fraud cannot merge with a contract and thus

completely negates it. Id. at 212.

This holding seems directly on point. Abdallah's claims of

fraudulent inducement should survive a “merger clause” like Article

XVI because that fraud may have induced her to sign the contract,

merger clause and all. Though Brown is an older case, we note that

the Mississippi Supreme Court reaffirmed this point of law only

last year, albeit in dictum. See Turner v. Terry, 799 So. 2d 25,

34 (Miss. 2001). We therefore hold that Article XVI of the Net

Income Agreement does not prevent Abdallah from introducing parol

evidence of Lowery's alleged fraudulent statements and does not

21
negate the element of reliance in the alleged fraudulent

inducement. We next ask whether Abdallah introduced enough

evidence to survive summary judgment on this issue.

2. Sufficiency of the Evidence

In order to understand whether Abdallah introduced sufficient

evidence that Lowery fraudulently induced her to sign the contract,

it is necessary to first carefully examine the immigration laws

applicable to her. Abdallah's J-1 visa was granted for the purpose

of allowing her to pursue her graduate medical education. This

places her generally within the group of “immigrants” defined in 8

U.S.C. § 1101(a)(15)(J) and particularly within the limitations of

8 U.S.C. § 1182. Section 1182(e) prevents such immigrants from

being eligible for change to a more favorable immigration status

until they have returned to their home country and resided there

for two years.3

The Attorney General may waive this requirement, however, when

the Director of the United States Information Agency recommends

3
This requirement enforces the purpose of the exchange
program: to foster relations with foreign countries by allowing
their citizens to be trained in the United States and then return
to apply the fruits of their study in their native land. See
Newton v. INS, 736 F.2d 336, 340-41 (6th Cir. 1984). The
requirement also remedies the “flagrant abuse” of the study program
and likewise prevents the “brain drain” suffered by many countries
whose citizens received training in the United States and then
declined to return. See id. at 341, quoting 1981 U.S. Code Cong.
& Ad. News 2577, 2594.

22
it.4 See 8 U.S.C. § 1182(e). The power to recommend waiver is

strictly limited; the Director may recommend waiver when the

Commissioner of Immigration and Naturalization requests it pursuant

to a determination that such a return would impose an exceptional

hardship on the immigrant's family or would expose the immigrant to

persecution on account of race, religion or political opinion. See

id. The Director may also recommend waiver of the two-year foreign

residence requirement on the request of “an interested United

States Government agency” or (in the case of graduate medical

students) “a State Department of Public Health.” See id. For most

cases, the Attorney General may grant a recommended waiver if he

determines it to be “in the public interest.” In contrast, the

Attorney General is strictly forbidden to grant a waiver to a

graduate medical student unless she has met the requirements of 8

U.S.C. § 1184(l).5 Id.

4
Now that the United States Information Agency has been
integrated into the United States Department of State, waiver
review is conducted by the Waiver Review Division of the Office of
Legislation, Regulation and Advisory Assistance in the Visa Office
of the Bureau of Consular Affairs. See
http://travel.state.gov/waiverpa.html.
5
The text of the statute refers to 8 U.S.C. § 1184(k). See 8
U.S.C. § 1182(e). This citation was correct when the law was
passed. See Immigration and Nationality Technical Corrections Act
of 1994, Pub. L. No. 103-416, § 220, 108 Stat. 4305 (1994)
(creating this requirement in section 1182(e) and a new subsection
of section 1184 denominated “k”). Section 1184(k) was modified
and redesignated “1184(l)” in the Omnibus Consolidated
Appropriations Act of 1997, Pub. L. 104-208, §§ 622(a) and
671(a)(3)(A), 110 Stat. 3009 (1996). The same statute added a new
subsection, which was accidentally designated “l” as well. See id.

23
 For a graduate medical student to meet the requirements of

section 1184(l), she must demonstrate a bona fide offer of full-

time employment at a health facility or health care organization.

8 U.S.C. § 1184(l)(1)(C)(i). She must agree to begin work within

ninety days and continue to work for not less than three years.

Id. at § 1184(l)(1)(C)(ii). If the position is not for medical

research or training, the immigrant must also agree that this

practice shall be in a geographic area designated by the Secretary

of Health and Human Services as having a shortage of health care

professionals. Id. at § 1184(l)(1)(D).6 Violation of these terms,

including failure to fulfill the contract, will immediately cause

the two-year foreign residence requirement to apply again. Id. at

§ 1184(l)(3).

This examination of the relevant immigration law clarifies the

import of Lowery's actions. We must make all reasonable inferences

in Abdallah's favor, and in doing so we find she has presented

evidence on each of the nine elements of her claim of fraud in the

inducement. (1) As for the first element -- a “representation” --

Lowery promised future conduct that he had no power to actually

at § 625(a)(1). Congress has not corrected this dual subsection
problem, nor has it altered the text of section 1182(e) to reflect
the renaming of section 1184(k). Nevertheless, it is obvious that
the subsection titled “Restrictions on Waiver” is the one that
limits the ability of graduate medical students to receive a waiver
of the two-year foreign residency requirement.
6
The procedure by which the Department of Health and Human
Services makes this determination is contained at 42 C.F.R. Part 5.

24
perform. Lowery asserted that he had helped other physicians get

a green card, he referred to section 1184(l)'s specific requirement

that the hospital be located in a designated health care

professional shortage area, and he wrote a letter to the Secretary

of Agriculture specifically pointing the Secretary to the statutes

limiting Abdallah's ability to get a green card.7 These facts all

suggest that Lowery understood the requirements of sections 1182(e)

and 1184(l). If he understood those sections, he knew that he

could do nothing to move Abdallah closer to her goal of a green

card. He thus would have no present intent to deliver when he made

his promise to help, and this state of mind suffices to make a

promise of future conduct a “representation” for purposes of fraud.

See R.C. Const. Co. v. Nat'l Office Systems, Inc., 622 So. 2d 1253,

1256 (Miss. 1993) (quoting Bank of Shaw v. Posey, 573 So. 2d 1355,

1360 (Miss. 1990)).

Continuing with the elements of fraud, (2) according to

Abdallah's deposition testimony, the representation was material to

her decision. (3) The representation was demonstrably false,

7
More precisely, perhaps, Abdallah’s deposition testimony, in light of the present record,
permits a fact finder to reasonably conclude that a reasonable person in her situation would
understand Lowery’s statements to her as relating that if she accepted the Crosby offer she would be
eligible to receive a green card and that a reasonable person in Lowery’s position would understand
that Abdallah would likely so understand what he was saying to her.
Whether the evidence in fact introduced at any future trial (where Abdallah’s testimony might
differ somewhat from her deposition and where additional evidence of an uncontradicted character
might also cast a different light on the matter) will suffice to sustain a verdict for Abdallah on her
fraud claim, we do not address.

25
because Lowery had no power to help her unless he radically altered

the contract. (4) As discussed above, there is some evidence that

Lowery knew the statutory requirements for waiver of the foreign

residency requirement and thus knew he was completely powerless to

help Abdallah. This suffices to establish, for summary judgment

purposes, that he knew his promise was false. (5) Lowery was

trying to recruit Abdallah, and thus he intended that she rely on

his statements. (6) Abdallah testified that she had no knowledge

that his promise was false and that (7) she relied on Lowery's

promise. (8) She also testified that she passed up other job

opportunities, which constituted a consequent and proximate injury.

Finally, (9) there is some evidence that Abdallah had the

right to rely on the promise. We recognize that she is a highly

educated person with some ability to investigate Lowery's claims

for herself, and this weighs in the “right to rely” consideration.

See Martin v. Winfield, 455 So. 2d 762, 765-66 (Miss. 1984) (the

fact that the deceived party was an attorney who could have easily

confirmed the truth of the assertion supported a jury verdict in

his opponent's favor); but see RESTATEMENT (SECOND) OF TORTS § 540

(1976) (no duty to investigate the truth of a representation if not

known to be false). On the other hand, Abdallah is an alien with

no knowledge of immigration law while Lowery is a U.S. citizen who

has recruited foreign physicians and who plausibly represented that

he had experience with immigration. This apparent imbalance of

26
knowledge favors Abdallah's “right to rely,” at least at the

summary judgment stage. See Martin, 455 So. 2d at 765-66; American

Income Life Ins. Co. v. Hollins, ___ So.2d ___, 2001 WL 695516 at

*6 (Miss. Jun. 21, 2001); Allen v. Mac Tools, Inc., 671 So. 2d 636,

642-43 (Miss. 1996); Turner v. Wakefield, 481 So. 2d 846, 849-850

(Miss. 1985). Abdallah has provided some evidence on each element

of her claim.

This examination of immigration law also belies Crosby's claim

that Lowery actually “helped” Abdallah and thus held up his end of

their bargain. The Net Income Guarantee Agreement neither provided

Abdallah with true employment nor required her to practice with

Crosby Memorial Hospital for three years, and therefore 8 U.S.C. §

1182(e) forbade the Attorney General from granting a waiver under

any circumstances. The Department of Agriculture and the

Mississippi Department of Health were utterly powerless to help

Abdallah, and Lowery's letters to these agencies were a waste of

postage. The only thing Lowery could have done to “help” was agree

to transmute the Net Income Operating Agreement into a three-year

direct employment contract, which he refused to do. Crosby has

failed to produce evidence negating Abdallah's counterclaim.

Abdallah's counterclaim for fraudulent inducement is not

barred by Article XVI of the Net Income Operating Agreement, and

she has provided more than a scintilla of evidence on each element

of her claim. The district court thus erred in granting summary

27
judgment against her on the counterclaim for fraud in the

inducement. Moreover, while Abdallah did not expressly raise the

affirmative defense of fraud in her answer to Crosby's lawsuit, a

counterclaim for fraudulent inducement should suffice to raise a

defense of fraud in a breach of contract suit at least so as to

prevent a summary judgment in the present circumstances where these

matters were all considered together. See Turner v. Terry, 799 So.

2d 25, 34 (Miss. 2001). If proven, fraud completely negates a

contract. Brown, 42 So. 2d at 212. The district court therefore

erred in granting summary judgment to Crosby on its breach of

contract cause of action.

B. Other Pediatricians

Abdallah also argues that she was fraudulently induced to sign

the contract in that Crosby represented that there was a strong

need for a pediatrician in the area. According to Abdallah's

deposition, when she first interviewed with Lowery she also met the

only pediatrician in town, Dr. Tibitibiah. Lowery told her that he

felt Picayune needed another pediatrician and that the area had

been designated a health care professional shortage area. During

her time in Picayune, however, Abdallah discovered that other

physicians would potentially compete with her. Abdallah discovered

that Crosby had already recruited two other family practitioners,

Dr. Gipson and Dr. Denney. A third family practitioner, Dr.

28
Delores, was also practicing in the Picayune area.8 Moreover,

after she arrived, Crosby recruited Dr. Hussein, a pediatrician,

and Dr. Weismann, a family practitioner, though these doctors began

practicing in Picayune after Abdallah's contract with Crosby was

broken. Abdallah argues that the family practitioners did some

pediatrics and thus were in competition with her.

We conclude that Abdallah has not produced summary judgment

evidence supporting her claim that these actions constituted

fraudulent inducement. While Lowery asserted that there was a

need for a pediatrician in the area, and the contract itself

recites that, Abdallah has not provided any evidence that this

assertion was knowingly false. It may very well be that Lowery

thought that the family practitioners did not obviate the need for

a second pediatrician; we cannot know, because Abdallah introduced

no evidence on this point. The evidence does indicate that the

hospital continued to recruit pediatricians and family

practitioners, but this strongly indicates that Crosby believed

that Picayune needed even more pediatric care professionals.

Similarly, there was apparently nothing false in Lowery's claim

that Picayune was designated as a health care professional shortage

area. Abdallah has failed to introduce evidence supporting this

element of her claim of fraudulent inducement.

Accordingly, we will affirm the grants of summary judgment on

8
The evidence does not make clear whether Dr. Delores was
recruited by Crosby.

29
these narrow grounds. Nevertheless, as discussed above the

evidence of fraud in the green card issue compels us to reverse the

district court's grant of summary judgment against Abdallah's

counterclaim for fraudulent inducement and the grant of summary

judgment on Crosby's claim for breach of contract.

III. Breach of the Duty of Good Faith and Fair Dealing

Abdallah's challenge to Crosby's recruitment of other

physicians is not limited to her fraudulent inducement claim. She

also claims that their efforts to recruit other physicians diluted

the market for a pediatrician in Picayune and thus breached the

duty of good faith and fair dealing implicit in contracts.

Mississippi does indeed recognize an implicit duty of good

faith in contracts. We also note that a party cannot violate the

implicit duty of good faith by exercising a right made explicit in

the contract. See American Bankers' Ins. Co. of Fla. v. Wells, 819

So. 2d 1196, 1206 (Miss. 2001); McDonald's Corp. v. Watson, 69 F.3d

36, 43 (5th Cir. 1995). The contract does not explicitly state

that Crosby may continue to recruit physicians to the area,

however, so we cannot rest solely on this basis.9 Instead, we must

9
Crosby claims Mississippi law holds that a party cannot
breach the duty of good faith and fair dealing if it honors the
terms of the agreement. This is a misreading of the relevant case
law. The implicit duty of good faith cannot be breached by the
exercise of a power affirmatively provided for (either by explicit
statement or clear implication) in the contract, but Mississippi
law does not support Crosby's claim that compliance with the terms
of the contract nullifies the effect of extra-contractual actions
taken in bad faith.

30
examine this situation to see if there is evidence of a breach of

the duty of good faith. "The breach of good faith is bad faith

characterized by some conduct which violates standards of decency,

fairness or reasonableness." Wells, 819 So.2d at 1206. Contrary

to Crosby's suggestions, we find no case law stating further that

the duty is breached only in “blatant, egregious circumstances.”

Abdallah admits that she knew Crosby never promised it would

not continue recruiting other physicians. To the contrary, she

knew that she was taking a position in an area designated as having

a severe shortage of health care professionals and thus could have

easily predicted that other physicians would be recruited. Indeed,

given this unfortunate state of affairs, the decent, fair and

reasonable thing to do may have been to continue recruiting

doctors. Additionally, we note that the doctors of which Abdallah

complains did not begin practicing while the Net Income Guarantee

Agreement was still in force. We find no evidence of indecent,

unfair or unreasonable behavior and therefore affirm the district

court's grant of summary judgment against Abdallah on her

counterclaim for breach of the duty of good faith and fair dealing.

IV. Tortious Interference With Contract and With Prospective
Business Relations

Abdallah also counterclaimed for tortious interference with

contract and tortious interference with prospective business

relations. Though she mentioned these counterclaims in her summary

of argument, she failed to explain her contentions in the body of

31
her brief in this Court. She has therefore waived these arguments

on appeal. See United States v. Martinez, 263 F.3d 436, 438 (5th

Cir. 2001); FED. R. APP. P. 28(a)(9)(A). Her arguments would have

failed anyway. A party to a contract cannot be held liable for

tortious interference with that contract. See Cenac v. Murry, 609

So. 2d 1258, 1269 (Miss. 1992). Moreover, Abdallah has not shown

that Crosby acted with the “malice” necessary for a tortious

interference with prospective business relations claim. See MBF

Corp. v. Century Business Communications, Inc., 663 So. 2d 595, 598

(Miss. 1995). We therefore affirm the district court's award of

summary judgment on the tortious interference claims.

V. The District Court's Choice to Strike the Legal Conclusions in
The Expert's Affidavit

Abdallah's final contention on appeal is that the district

court erred by striking portions of the affidavit of her expert,

Paul A. Harris. Though Crosby moved to completely strike the

affidavit, the district court ultimately struck only the legal

conclusions asserted by Harris. We review this decision for abuse

of discretion. See First United Financial Corp. v. U.S. Fidelity

& Guar. Co., 96 F.3d 135, 137 (5th Cir. 1996).

Though Abdallah raises arguments based on the generally

applicable Federal Rules of Evidence, we need only examine the

specific effect of Federal Rule of Civil Procedure 56 governing

summary judgments. Wright, Miller and Kane opined that:

“Rule 56(e) further limits the matter to be properly included

32
 in an affidavit to facts, and the facts introduced must be
alleged on personal knowledge. Thus, ultimate or conclusory
facts and conclusions of law, as well as statements made on
belief or 'on information and belief,' cannot be utilized on
a summary-judgment motion.” WRIGHT, MILLER & KANE, FEDERAL PRACTICE
& PROCEDURE: CIVIL 3D § 2738 (1998).

This circuit adopted Wright, Miller & Kane's reasoning in Galindo

v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985), and

reiterated the same point in Orthopedic & Sports Injury Clinic v.

Wang Laboratories, Inc., 922 F.2d 220 (5th Cir. 1991). Harris's

legal conclusions, therefore, were not valid summary judgment

evidence. Because the court excluded only those portions of the

affidavit that were useless at the summary judgment stage, the

district court did not abuse its discretion. We affirm that

ruling.

Conclusion

We are persuaded that the only error in this case was the

district court's choice to award summary judgment on the issue of

Lowery's promise to help Abdallah obtain a green card. We reverse

the summary judgment on her counterclaim for fraudulent inducement

and remand for further proceedings. Because fraud is a defense to

an action for breach of contract, we also reverse the grant of

summary judgment on Crosby's suit against Abdallah and remand for

further proceedings. The district court's order that Abdallah pay

Crosby is also vacated for the same reason. We affirm all other

aspects of the district court's summary judgment opinion, however.

Finally, we find no error in the district court's striking of the

33
legal conclusions in the affidavit of Paul A. Harris.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

34