Gulf Coast Radiology Associates v. Gholamreza Malek, M.D.

• Court: Court of Appeals of Texas
• Decided: May 1, 2003
• Docket: 14-02-01126-CV
• Status: Published

Opinion

Affirmed and Opinion filed _____________, 2002

Affirmed and Memorandum Opinion filed May 1, 2003.                                                      

In The

Fourteenth Court of Appeals

____________

NO. 14-02-01126-CV 

GULF COAST RADIOLOGY ASSOCIATES, Appellant

V.

GHOLAMREZA MALEK, M.D., Appellee

On Appeal from the County Court at Law No. 3

                                                           Harris County, Texas                      

Trial Court Cause No. 743,983

M E M O R A N D U M   O P I N I O N

            Appellant Gulf Coast Radiology Associates, an unincorporated association operated by Dr. Hans Truong, sued appellee Gholamreza Malek, M.D., for tortious interference with contract and misappropriation.  After Dr. Malek filed a no-evidence motion for summary judgment, Gulf Coast amended its petition a week before the summary judgment hearing, dropping its misappropriation claim and adding claims for breach of contract, conversion, tortious interference with potential business relationship, and breach of agency relationship.[1]  The trial court granted summary judgment in favor of Dr. Malek, and Gulf Coast appeals.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  See Tex. R. App. P. 47.1.  We affirm.

            A no-evidence summary judgment is essentially a pretrial directed verdict, to which we apply the same legal sufficiency standard of review. Russo v. Smith Intern, Inc., 93 S.W.3d 428, 433 (Tex. App.—Houston [14th Dist.] 2002, no pet.).  After an adequate time for discovery, a litigant may file a no-evidence motion for summary judgment seeking dismissal of all or part of a lawsuit if there is no evidence to support at least one of the elements of the adverse party’s claim or defense.  Tex. R. Civ. P. 166a(i).  Once such a motion has been filed, the burden shifts to the nonmovant to present “more than a scintilla of probative evidence to raise a genuine issue of material fact.”  Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1998).  If the nonmovant fails to provide sufficient evidence, the trial court must grant the motion.  Id.  Summary judgment is proper on new causes of action not addressed in a previously filed motion if one or more dispositive elements in those claims are addressed in the motion.  Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 435–37 (Tex. App.—Houston [14th Dist.] 1999, no pet.)

I. Breach of Contract

            Gulf Coast had contracted to provide radiological services at Memorial Medical Center Hospital.  Sometime in the summer of 2000, Gulf Coast retained Dr. Malek to perform the work.  The latter parties had no written contract; there was evidence the hospital paid Gulf Coast, who in turn paid Dr. Malek on a per diem basis.

            Gulf Coast terminated its contract with the hospital on July 1, 2000, but continued to operate at the Hospital on an “at-will” basis until mid-September, 2000.  Thereafter, the Hospital looked for a replacement, contacted Dr. Malek, and offered him the contract. 

Employment in Texas is presumed to be at-will.  Midland Jud. Dist. Comm. Supervision & Corrs. Dept. v. Jones, 92 S.W.3d 486, 487 (Tex. 2002).  Absent a specific agreement to the contrary, employment may be terminated by the employer or the employee for good cause, bad cause, or no cause at all.  Id.  Modification of at-will status must be unequivocally stated.  See id.  Nothing in the record indicates any limitation on Dr. Malek’s right to quit and work for the hospital directly.  We affirm the summary judgment on this issue.

II. Tortious Interference

            Gulf Coast asserts Dr. Malek committed tortious interference with contract and with a prospective business relationship by contracting directly with the Hospital.  Both claims require an intentional or willful act that would be actionable under a recognized tort.  See Wal-Mart v. Sturges, 52 S.W.3d 711, 726 (Tex. 2001).  However, other than the formation of the subsequent contract, Gulf Coast presents no evidence of any intentional act or interference by Dr. Malek.  Dr. Malek may have been a willing participant, but this does not establish he was engaged in any improper conduct.  See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993).  We affirm the summary judgment on these issues.

III. Breach of Agency

Gulf Coast presents no evidence that Dr. Malek competed with it during his employment, rather than after.  See Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 853 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).  Nor was there evidence that Dr. Malek signed a covenant not to compete.  Consequently, we overrule this issue.

IV. Conclusion

            Because Gulf Coast makes no complaint about dismissal of its conversion claim, any error is waived.  See Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998).

            The judgment is affirmed.                                           

                                                                                                                                                                                                                        /s/        Scott Brister

                                                                        Chief Justice

Judgment rendered and Memorandum Opinion filed May 1, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

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[1] The trial court is presumed to have granted leave to file amended pleadings, even when the filer failed to request leave, when (1) the record fails to show that the trial court did not consider the amended pleading, and (2) there is not a sufficient showing of surprise or prejudice on the part of the opposing party.  Tex. R. Civ. P. 63.