*4
WHITHAM,
Bеfore
LAGARDE and
amation, and tortious interference with
KINKEADE, JJ.
contracts of Gillum. Gillum also set forth
Roy
3.Republic
purchased
The record reflects that Le
A. Pesch is
asserts that MPH was
"Leroy”
“LeRoy.”
sometimes referred to as
approval
City
consent and
of the
Mesquite.
DeBakey
2. The record reflects that Michael E.
"Debakey"
sometimes referred to as
or “De Ba-
key.”
all
ing judgment,
thereby
he
waives
errors
against
allegations
liability
of individual
judgment,
McAtee, Buncher, Devender, Pesch,
contained in the
DeBa- committed or
Vandewater,
nothing
properly
could
having
mem-
which
key, and
as officers and
thus
court, except
Republic.
appellate
an
of the
of directors of
considered
bers
board
v. Allied Fi
jurisdiction.
want of
DeLee
20, 1987, Republic filed
On October
(Tex.Civ.
Co., 408 S.W.2d
nance
summary judgment.
motion for
The trial
1966, writ), citing Posey
App.
— Dallas
held
causes of action set
court
Pipe Line
Plains
mat
forth
Gillum were insufficient as a
(Tex.Civ.App.
1100-01
— Amarillo
of law to
the basis of an action
ter
form
writ).
against Republic
entered a
take-noth
6,1988 (the summary
ing judgment May
on
is correct when
states
judgment). Because Gillum believed liabili
judgment
is contractual.
that a consent
depend
ty
remaining appellees
imposes
When
consent
duties
underlying
raised
ent
the same
issues
parties,
obligations
on the
and where a
of,
support
by the evidence submitted
party
fully comply with the obli
fails to
to,
opposition
judg
*5
in
the
and
judgment,
party
gations
the
the other
of
Republic,
par
entered in
of
all
ment
favor
may
enforce the contractual obli
seek to
judg
agreed
that a final
ties
suit
Wagner,
gations.
generally
295
See
litigation
in order
ment “be entered
that
However, the contrac
at 891-893.
S.W.2d
purposes
ap
can become final for the
seeks to enforce
obligation
tual
Gillum now
Judgment
Septem
rendered on
peal.”
was
attack,
appeal,
to
or
the
agreement
is an
22,
(the
judgment).
final
1988
ber
precluding
party
the rule
a
judgment, and
agreed judgment
from
appealing
from
an
Appellees
that because Gillum
contend
language
applies regardless of whether the
only
judgment,
final
but
not
drafted the
purports
agreed judgment
in the
“approved
judgment]
form contained
as to
also
[the
appeal.
preserve any
right
errors
to
substance,”
or a
is now foreclosed
and
1100;
39 S.W.2d at
see also
Posey,
of See
contesting
judgment
from
the
as to all
(Tex.
314,
State,
316
response,
argues Braden v.
appellees.
the
writ);
1937,
Pair v.
agreement
regarding
Civ.App.
final
no
that
— Waco
Buckholt,
(Tex.Civ.App.
fact,
contract,
ap-
S.W.2d
464
was,
and
60
judgment
in
a
1933, writ).
by
the —Amarillo
pellees
required
should
abide
in the final
expressed
judgment
as
contract
was en-
judgment
In Posey, a consent
appeal the judgment
Gillum to
and allow
Although
defendant.
tered in
favor
appellees.
rendered
favor of the
See
clearly
that the con-
recited
judgment
Warnasch,
Tex.
156
generally Wagner
right of
“subject to the
judgment
sent
(Tex.1956). Thus,
Gil
as to the
not as to
individual
but
AOF
TORTIOUS INTERFERENCE
Republic.
Republic’s liability
We hold that
RELATIONSHIP
summary judgment,
determined
BUSINESS
Thus,
agreed judgment.
the final
con-
In his first
grant appellees’
we
motion to dismiss the
erred, as a matter
tends that the trial court
individuals, McAtee,
appeal as to the
that no issue of material
Buncher,
Devender, Pesch, DeBakey,
Van
regarding tortious interference
fact existed
Yandewater,
deny
their
motion to
existing
prospective contracts. Gil-
appeal
Republic.
dismiss the
as to
protects
lum maintains that Texas law
relationships from
types
three
of business
We
return to the merits of
now
(1)
tortious interference:
contractual rela-
appeal.
reviewing
The standards for
contracts;
pro-
tionships;
at-will
summary judgment are:
ar-
spective
relationships. Gillum
business
1. The movant for
gues
ongoing
had an
showing
has the
there
burden
performed all
relationship whereby Gillum
genuine
is no
issue of material fact
surgeries
hospital, thereby
of his
and that it is entitled to
*6
generating
Republic;
revenue for
the hos-
a matter of law.
would,
turn,
pital
provide adequate
medi-
deciding
2.
whether there is a dis-
community
cal care of at least the
stan-
puted
precluding
material fact issue
dard.
summary judgment, evidence favor-
able to the non-movant will be taken
asserts that after
ac-
as true.
dropped
quired MPH the level of care
al-
Every
immediately. He
that he lost
reasonable inference must
most
asserts
be
referrals,
indulged
fifty-six patient
whom he
favor of the non-movant
any
and
performed surgery, Republic
doubts resolved in its favor.
if
would have
health
had maintained the level of
care
Hartsough
Steinberg,
737 S.W.2d
equal
greater
hospital
to or
than that
(Tex.App.
denied),
— Dallas
community.
hospitals
of other
in the
Gil-
quoting
Property Manage
Nixon v. Mr.
examples evidencing the decline
lum cites
ment,
(Tex.1985).
548-49
hospital:
in health care at the
The function of a
is not
(1)
nursing
hospital
staff had been
deprive
litigant
right
of his
to a full
undertrained;
frequently overworked and
hearing
any
on
merits of
real issue of
fact,
(2)
patently
hiring
firing policies
to eliminate
of the
but
unmeritori
and
hospital
discriminatory
ous claims and
defenses.
and arbi-
untenable
Hart
were
sough,
citing
trary
737 S.W.2d at
Gulbenki
and were calculated to reduce over-
Penn,
412, 416,
provide adequate
an v.
151 Tex.
head rather than
care
(1952).
services,
competent personnel
and
wrongfully discharged and re-
had been
Defendants who
move
placed by inexperienced
improperly
showing
have
burden of
personnel;
trained
trial court as a matter of law that no
(3)
hospitаl
provided
not
had
been
plain-
material issue of fact exists as to the
adequate budget to assure ade-
with an
Rowden,
tiff’s cause of action.
Griffin
care;
quate
may
tors (23) records maintained hospital; health care and services at the surgery personnel were inaccurate operation surgical concerning the doctors, Gillum, (8) including were staff log; they per- if threatened with retribution complaints
sisted in their about (24) surgery with the communications provided patients health care poor so that it charge nurse were often hospital; unnecessary trips to the caused doctors; by staff (9) competent emergency room staff doc- « discharged arbitrarily tors from the nurses, were (25) consistent lack of inade- replaced with doctors un- care, quate nursing and the lack of a regarding proper trained or unoriented many unneces- surgery desk clerk caused hospital procedures; trips hospital by doctors to sary had to am- patients, care for and doctors (10) surgical desk had no clerk the main patients; own bulate their assigned to continu- or nurse who was orders, ously phone and take answer (26) speak poor numerous nurses who provide continu- patient lights, answer frequently to com- English were unable required surgical nurses’ station ity at a during emergency doctors municate with post-surgical patients to handle care for situations; urgent emergencies; and/or emergency room doctors were per patients were not ambulated as and/or indoctrinated adequately oriented *7 orders; doctors’ consulting spe- concerning facility, doctors, cialists, proper proce- and (12) given not staff frequently medicine dures; orders; per as doctors’
(13) (28) responsible of inadequate, frequently, an number nurses were there was not patients carry they out were procedures nurses to care for and for orders; do, i.e., caesarean sections trained to doctors’ did not timе scrub nurses where first (14) changed per bandages not were instruments; the names of know orders; doctors’ (29) not hospital administrator was (15) properly oriented nurses were not to doctors or p.m. after 5:00 available hospital’s procedures and concerning the staff; nursing personnel; in- (30) frequently patients were (16) nursing surgery were not crews themselves to care for structed on how concerning materi- trained oriented and postoperatively; instruments, als, personnel, procedures, techniques; original and sterile medical (31) frequently, it doctors was lost and tape of records (17) properly iv’s were not monitored redictated; had to be running plugged in while not were left periods empty for excessive and/or were desk clerk (32) promises to have a many time; fulfilled; adequate of were not nurses of (18) timely notified meetings doctors were not hospital’s (33) minutes complications; problems and/or patient hospi- altered inaccurate or were is- important to delete up- tal administrator (19) put on binders were abdominal discussed; backwards; sues that were side down 565 Moreover, a to sustain order provided nurses false information patient interference patient status and for tortious doctors about cause of action valid, of a notify contract, failed to doctors care and there must be awith might patient’s symptoms that serious interference. subject to existing contract patient; cause harm to the Crow, Assocs., 700 Inc. v. & See Steinmetz (35) nurses made false entries on the (Tex.Civ.App. 276, n. 1 — San patient in order to reflect nurses’ notes n.r.e.); ref’d O’Connor Antonio not, fact, provided; care that was Corp., 589 S.W.2d Eng’g & Sales Glitsh had, knowledge writ). of nurses with (Tex.App. — Dallas nurses, altered the director he had an Although contends that attempt up negli- records in an to cover Republic, employment contract with at-will patient gent and deficient care. revealed the trial court the evidence before arguably relations only contractual performed he had Gillum maintains that patient refer 8,000 surgeries subject to interference were over surgeries perform prospective would have continued to nature. There was rals of a of health care not there had the level be- with appellees had interfered evidence that Further, asserts that come so low. in except any existing contracts of Gillum hospital’s level based substandard privilege granted the sofar as Gillum was care, previously made doctors who had hospital, practicing at the and Gillum patients refused to referrals of to Gillum privileges that his staff does not contend Therefore, any longer. con- do so Consequently, because the revoked. were hospital’s tends that but for the substand- conclusively summary evidence care, ard level of have received would any contracts sub negated the existence patient future contracts. interference, conclude that at ject to we recovery any It is axiomatic that under cause of the elements of Gillum’s least one tort, theory including interfer- tortious of a con action for tortious interference relations, ence contractual must be relationship an at-will con tractual or with predicated upon positive the breach of him was estab Republic and tract between duty imposed by Rodriguez Dipp, law. against him.4 conclusively See Sa lished (Tex.Civ.App. Consequently, kowitz, at 108. — El Thus, n.r.e.). Paso writ ref’d judg further conclude we prevail Gillum to on his cause of action for claim in favor of ment on that rela tortious interference with business proper. tionship, separate must owe a *8 legal duty requiring hospital to Gillum the regard claim for to Gillum’s With adequate hospi provide to medical care to prospective con interference with tortious patients. tal relations, conclude we further tractual properly granted the trial court Texas, although duty In exists a In order to assert a claim judgment. pro hospital patients a and its between con prospective tortious interference with them with a certain level of medical vide relations, upon rests the burden tractual care, duty the of which results breach (1) there was plaintiff to establish that: the liability hospital, on the Harris v. Har see entering into probability” of a “reasonable 353, Dist., County Hosp. ris 557 S.W.2d (2) relationship; the defen a contractual (Tex.Civ.App. 355 Dist.] [1st — Houston intentionally pre maliciously by dant acted 1977, writ), Republic and concede oсcurring relationship venting from the recognized that a yet Texas has not harming plaintiff; the purpose with physicians separate duty a owes or (3) privileged defendant was pa provide adequate medical care damage (4) or actual harm justified; and tients, recognize such a decline to and we Duck a result. Leonard occurred as cause of action. contractual with a as for tortious interference relationship. elements for tortious 4. Gillum concedes that the contract are the same interference of an at-will 566 duty
worth,
parties are under a
Inc. v. Michael L.
516
to act for
Field &
[T]he
give
or
for the benefit of
952,
(5th Cir.1975)
advice
another
Texas
(applying
F.2d
956
scope
matters within
Bank,
law);
Levine v.
see also
First Nat’l
special
It exists where a
relation.
confi-
749,
706
(Tex.App.—San
751
ton
S.W.2d
An
reposed in another who
equity
dence is
1986),
io
on other
721
grounds,
rev’d
gоod
and
conscience
bound to act in
(1986).
S.W.2d 287
regard
good
due
faith and with
hospital’s
conclude that the
ac
We
reposing
interests of the one
confidence.
Texas,
privileged.
party
tion
can
was
78,
(Tex.
Roper,
Fisher v.
727 S.W.2d
81
not recover for tortious interference if the
n.r.e.),
App.
Antonio
ref’d
— San
privileged.
interference was
Texas courts
Moore,
citing
Trust Co.
Texas Bank &
v.
consistently held that:
have
(Tex.1980).
595 S.W.2d
privileged to
con
one is
interfere with a
definition
further asserts that the
of a fidu
others when he
so in
tract between
does
ciary relationship
includes
also
informal re-
rights
fide exercise
his own
bona
moral, social,
lationships
domestic,
such
possesses
equal
superi-
an
or
when
purely
relationships
personal
which are
plaintiff
or interest to that of the
in the
party placing implicit
created
one
trust
subject matter.
another.
v.
and reliance on
Seе Tuttlebee
Tuttlebee,
(Tex.App.—
702 S.W.2d
Sakowitz,
at
1985, writ).
Corpus
Christi
The evidence before
trial court was
fiduciary
rela
Gillum maintains that
Republic
hospi-
undisputed that
owned the
Republic
tionship
and him
existed between
right
operate
tal and had the
developed
relationship
because the
over
policies,
practices,
to control its
long period
they worked to
of time and
procedures.
hospital,
As the owner of the
goal.
gether
See
a mutual
O’Shea
toward
Republic
superior
clearly had a
financial
Co., 656
Transmission
Coronado
the manner in
interest
which
(Tex.App. Corpus
S.W.2d
Christi
—
ultimately operated
n.r.e.), citing Consolidated
writ ref’d
hospital performed
manner in which the
its
In his second Gillum hе also met the that Gillum contends erred, court as a matter determining tends that the trial whether an second in criterion exists; of fact law, relationship no issue material fiduciary “informal” goal rela- regarding fiduciary is, of a a mutual the existence there was that whether argues Gillum Republic. and Gil- and him. tionship Republic between between a doctor and fiduciary relationship relationship that the between lum that a asserts together as a hospital team a is to work exists when:
SfiT relations, fiduciary improve patients by because the health of in that each manded party relies on the its re- itself something apart other to fulfill from the transaction sponsibilities Chen, and each must have confi- necessary. 759 S.W.2d Chien v. dence the other’s fulfillment of its obli- 484, (Tex.App. 494 n. 6 — Austin gations; obligation the doctor has the Gas, writ), 405 S.W.2d citing Consolidated perform surgery prescribe treatment Although fiduciary duty may be аt 336. patient medication for the which will best traditional imposed on relations outside the patient regain enable the his or her ones, requirements neces the exact same health; hospital accepts responsibil- the the fiduciary re sary to a traditional establish ity providing patient proper the lation must met to an informal establish accepts duty care and to exercise that Moore, fiduciary generally relation. See care, skill, degree diligence and used 507; Chien, at 595 S.W.2d at hospitals generally community; in the a 494; Airways, Inc. v. Associated Ra Page surgeon hospital personnel works with (Tex. 192-93 dio Serv. prior performance from the time to the Civ.App. ref’d n.r. Antonio — San operation patient the on the until the time e.). patient the hospital facility; leaves the the hospital responsibility preparing has the bar, case at the the patient oрeration ensuring the for the judgment evidence refuted Gillum’sconten operating that the room and instruments Republic tion that he and were fiduciaries. prevent are sterile as to so infection of the Gillum, merely The evidence showed patient following operation; hospi- hospital, like all doctors at the had staff surgeon throughout tal op- assists the privileges hospital; as a matter of by providing eration the instruments for privileges, the existence of staff surgeon requested monitoring as accompanying has “trust” doctor patient throughout operation; fol- out, that his orders will be carried is insuf lowing operation, hospital monitors Indeed, fiduciary duty. ficient to create a patient’s recovery and treatment as only evidence before the trial court was prescribed by doctor; hospital and the self-serving he “re statement that provides patient medicаtion and care to the per explicitly [hospital] lied on staff and per Referring doctor’s orders. us to the complete order and sonnel to enable [his] thirty-six examples point, listed his first patients to recover their health.”5 [his] Republic Gillum asserts that breached its allege, Gillum did not nor was there evi fiduciary duty to him. Gillum also main- suggest, reposed had dence to fiduciary tains that breached its special hospital in the confidence duty by failing keep promises it guided judg thereafter the advice and regarding making made to him additions key ment of the staff—a element updates facilities and establishing any fiduciary relation. improvements services and overall in the though the existence of a confiden- Even general patients care of admitted to the fact, relationship question tial is a see hospital. 192, most, Page Airways, 545 S.W.2dat Although agree we with Gil- merely alleged subjective trust rеgarding lum’s recitation of law the defini which, itself, was, in the and of fiduciary duty, tion of a conclude that we law, insufficient to create a as a matter of fiduciary duty existed in this instance. Gas, legal duty. See Consolidated fiduciary duty extraordinary A is an one 336; Chien, at 494. S.W.2d at lightly and will not be created. The mere if Additionally, even there were evidence subjectively fact that one trusted the other *10 not, alone, reposed special confi- reposed that had a does indicate that he Gillum to hospital, in in in Gillum still failed confidence the other the sense de- dence the relationship Although petition principal-agent between Gillum Gillum’s third amended al- a imposition agent, hospital leged hospital as a basis for the of that the was his the sum- and the finding fiduciary duty. mary judgment evidence eliminated a of a 568 ing patient imposition quality
assert a basis for the fiduci- of of a the care continu- First, ing ary duty. practice hospital the basic at the and under definition to continu- fiduciary, ing patients spe- place of a the one with whom to in the care of the the hospital’s reposed obligated personnel. staff and cial confidence is to act Gillum fur- good very faith ther that even if reposing toward the one asserts his contract with Fisher, Republic will, Republic confidence. the S.W.2d at 81. was terminable at case, required In the instant that was to terminate his Gillum admitted contract. hospital However, obligated good Republic was to because act continued to Thus, faith toward not staff patients, privileges him. renew Gillum’s hos- imposition pital, no tenable contends Republic basis for the of a Gillum that did not Thus, fiduciary duty his existed. terminate contract. Gillum as- Republic serts that cannot be released from Second, ev contract; liability its for breach of the and negated finding idencе a that Gillum and he reasonably further maintains that he Republic longstanding had a relation that promises relied on the and assurances of justify imposition fiduciary could of a Republic right and that has a now to corresponding duty. relation and The evi theory relief promissory based undisputed prior dence that to Novem estoppel. relationship ber Gillum had no with that properly We conclude the trial court Republic. “bootstrap” Gillum cannot his against judgment entered Gillum previous separate two enti association with on his of contract claim because breach Hospital ties—Rutherford General and established, law, matter of evidence as a Mesquite Hospital General basis —as that contract The summary existed. asserting relationship” a “26 year Re with by Republic evidence submitted Thus, public. fiduciary that we conclude affirmatively they had stated that never relationship did not exist between Gillum contracts, oral, any entered into written Republic. point Gillum’s second of er response, with Gillum asserted Gillum. ror is overruled. express that contract with Re- he had an public would pursuant to which Gillum ad- BREACH OF EXPRESS CONTRACT mit and the patients hospital, into the hos- In his third Gillum equal pital provide care to or would medical erred, that court contends the trial as a greater community than the standards. law, matter of did Republic contract, express its contract him. breach The law is well settled that enforceable, express sufficiently there must Gillum maintains that was an be certain Republic contract and him that so to determine the between as to enable court admitting respective legal obligations parties. patients consisted Gillum performing surgeries Delgado, to the in See Bendalin (Tex.1966); providing Steinberg, consideration of the Weitzman (Tex.App. patients health care for level 638 at a —Dallas case, 1982, writ). equal greater present In the to or than that other hos alleges pitals community. within ar that the oral contract consisted of gues initially Republic’s “commitment to contract was entered terms such as upgrade [hospital’s] facilities into and MPH between Gillum when Mes care”; Corporation “Republic had a commitment quite pur Medical Facilities health rise”; patient care chased MPH 1978 and leased it to Ruth make the level Republic a new Hospital. He main had a “commitment build erford General further [hospital] facility.” Republic purchased Those tains that when addition indefinite, as a matter of as “terms” are too November obligation. any implied create contractual sumed all actual and contracts that no en undisputed and The previously had existed between Gillum evidence that he contract еxisted between MPH. Gillum asserts continued forceable Bendalin, 406 S.W.2d regard- Republic. rely upon repeated assurances See *11 of revenue for a source thereby providing Moreover, the at 899. in turn con- the any hospital, and negated the contention that evidence pa- care to his provide medical Gillum to entered into between tracted contract was or at greater than upgrade hospital and level of care Republic to tients at a community standard. equal a new patient care and to build least level addition, majori- although for a hospital. In while addition to the contends that Gillum honored, in alleged he a contract with was years that had the contract ty of the 1984, Republic pur- that previous owners of the when November Republic it merely things began when to hospital, assumed chased hospital, although there was no sum- purchasеd the maintains that change. Gillum alleged of that mary judgment evidence that representations Republic orally made assumption. the contract between going to honor it was improve in fact Republic and Gillum and reasons, hold that foregoing For the we Repub- hospital, provided care properly court held that Gillum’s the trial representa- refuted these oral lic’s actions express contract was claim for breach of tions. as a matter of law. Gillum’s insufficient of error is overruled. point third prior Republic asserts response, In trial moving summary judgment, the to OF IMPLIED CONTRACT BREACH exceptions to special its court sustained error, point his fourth him to and ordered contract claim erred, contends that the trial court allege all elements petition amend his law, finding matter of that there was However, the order a claim. because such issue of material fact as to the existence exceptions is sustaining Republic’s special Republic and implied an contract between us, not address Gil- we need not before from acts implied him. An contract “arises replead cause of ac- his lum’s failure parties, being implied it and conduct of tion.6 circumstances that there from facts and specified in our discussion of reasons For to contract.” Haws was a mutual intention concerning an point of error Gillum’sthird Contractors, Inc. v. Gor & Garrett Gen’l contract, overrule Gillum’s express we Welding 480 S.W.2d bett Bros. implied as to an con- fourth of error Therefore, Gillum main tract. dealing that a course of between tains minds, meeting parties imply can Kirkland, 410, 412 Gray v. 550 S.W.2d ESTOPPEL PROMISSORY
(Tex.Civ.App. Corpus Christi — point of Gil- In his fifth Haws, n.r.e.), quoting ref’d erred, as a the trial court lum contends that agreement mutual and the element of there was no matter of Haws, the circumstances. is inferred from regarding the dоc fact issue of material at 609. as estoppel. Gillum promissory trine of acquisition of prior Republic’s he and serts that Specifically, Gillum asserts that representa Republic’s implied which was Republic had an contract with of conversations dealing had a series by the course of and tives evidenced conversations, that, in those parties. states Gillum conduct between promises made Republic’s representatives twenty-six year approximate his that with hospi future of the regarding the had con- to Gillum relationship hospital, he with owner. Gil- Republic became the tal after hospital that he would with the tracted hospi told that hospital, lum states surgeries perform all February twenty-one days 11, 1989, transcript appellees within January filed a motion 6. On therefore, so; Appellees do failed to transcript doc- 6th. supplement with several exceptions sustаining appellees’ special uments, including sus- order order the June the same makes this Court. exceptions not before taining special to Gillum’s appellees’ and sixth 6, 1989, regard Gillum’sfifth argument February appel- original petition. On points supplemental of error. granted leave to file a were lees *12 principal objective provide tal’s fraud. misrepre- Gillum asserts that the outstanding patient service of care to the by Republic sentations consisted of contin- Mesquite community. Gillum contends promises hospital, uous to build a new up- representations that Van Devender made equipment, improve quali- date the the Republic to Gillum that would suffi have ty patient care. Gillum contends that funding upgrade cient hospital’s Republic’s misrepresentations, turn, in- equipment care; hospital would duced him to continue his association with primarily hospital;7 remain a “D.O.” hospital; thаt this “played association changes Gillum could continue to make the reputation, havoc” with his diminished the upgrade the level of health care at the received, number of referrals he hospital; hospital and that facility a new contracts; patient caused a loss of was to be constructed. Gillum contends continuing those representations were false reasonably that he relied on those state two-year period because that Gillum Devender, by ments made Van as well as hospital, remained hospital with a new by similar statements made Buncher and built, equipment up- was not was not various administrators and staff dated, quality patient nor care members, and that based on those assur increased. ances, perform surger Gillum continued to Republic Gillum maintains that commit- Further, hospital. ies at the Gillum asserts misrepre- ted actual fraud because where a that his reliance was foreseeable based continuing sentation is in nature and the upon twenty-six year his association with recurring, injured influence of a fraud Repub that his reliance on party may damages recover for occasioned promises detrimentally lic’s his affected by continuing his inaction in reliance reputation and career. representation, if even at the outset the promissory estoppel The doctrine of re- injured party taking had no intention of quires: promise; (2) promisor’s Although action. change Gillum did not foreseeability promisee’s reliance position any his or course of conduct in thereon; substantial reliance the way misrepresentations, after the Gillum promisee to English his detriment. Republic if states that he had known that Fischer, (Tex.1983). representations, was not serious in its The doctrine does not create a contract chаnged his course of conduct. would have before, only pre- where none existed but Republic’s Gillum further maintains that party insisting upon vents a from his strict promises intention at the time the were legal rights unjust when it would be Republic’s made can inferred from con- allow him to enforce them. Wheeler duct. White, Be- Asserting that a claim of constructive previously cause we have concluded that no resulted, argues fraud Gillum that a fiduci- express implied existed, contract in that ary relationship hospi- existed between promises vague made were too tal and him and that breached its indefinite, we hold that the trial court did equitable duty by repeatedly misrepresent- granting Republic’s err ing the standard of care and the status of regard to Gillum’s cause of hospital. construction of the new promissory estoppel. action for advantage Republic took reiterates that point fifth оf error is overruled. fiduciary relationship him in where Gil- relied, detriment, justifiably on lum ACTUAL AND Republic, resulting the statements made CONSTRUCTIVEFRAUD damage. suffering in Gillum considerable In his sixth erred, properly trial court maintains that the trial court as a We conclude that the against matter of of mate entered issues regarding of actual fraud because that rial fact actual or constructive on his claim osteopathy. A doctors
571 law, matter of Republic, as a that of law. hold insufficient as a matter claim was certain provide to duty to Gillum fraud, owed no Gillum must To establish actionable Ac- hospital. care at the (1) of medical representation level that: a material establish duty, such a false; cordingly, in the absence made; (2) representation was prop- summary judgment was repre we hold that speaker the time the made the at sixth erly against Gillum. made entered he knew it was false when sentatiоn is overruled. point of error truth of the or was reckless about the asserted; (4) the statement was matter DEFAMATION it should acted
made with the intent that
upon by
party;
the other
the other
error, Gil-
point of
In his seventh
thereby
it and
party acted
reliance
erred, as a
that the trial court
lum contends
Ratcliff, 646
injury.
suffered
Trenholm v.
no issue of
that
matter of
927,
(Tex.1983);
Dallas
S.W.2d
930
First
regarding the defam
existed
material fact
Hawkins,
Petroleum,
727
Inc. v.
S.W.2d
by Republic or its
atory
made
statements
1987,
640,
(Tex.App.
no
649-50
that the de
representatives. Gillum states
— Dallas
writ).
made
Steven
famatory statements were
administra
capacity
in his
as the
D. Porter
plead
plaintiff
The
is on the
to
burden
during
peri
the relevant
tor of the
fraud claim.
prove
all elements of his
in a trans
asserts that
od of time. Gillum
Gilley,
Ins.
Standard
Co.
Citizens
Life
letter,
informed both
mittal
Porter
354,
(Tex.Civ.App.
356
521 S.W.2d
— Dallas
Mes
Mesquite and the
Hospital of
Charter
here,
1975, writ). Where,
alleged
no
inquiry by
Community Hospital, upon
quite
upon promise
perform
is
fraud
based
qualified
hospitals,
those
that Gillum
future,
in the
in addition to the above ele
only
family practice. Gillum believes
ments,
necessary
prove
that
it is
facts
statement, Gil-
that as a result of Porter’s
promise
present
was made with a
intent
obtaining surgical
precluded from
lum was
perform.
Corp.,
not to
New Process Steel
hospitals.
privileges at those
Texas, Inc.,
Corp.
Inc. v.
703
Steel
209,
(Tex App.
214
S.W.2d
[1st
argument,
re-
support
of his
— Houston
1985,
n.r.e.).
ref’d
Mere breach
Dist.]
testimony in
deposition
fers to Porter’s
agreement
enough in itself to
of an
is not
that he could
Porter admitted
which
speaker
prom
that the
made the
establish
performance as a
“evaluate
[Gillum’s]
fulfilling
ise
no intention of
it. New
not trained.” Port-
surgeon.
I’m [Porter]
214;
Steel, 703
see
Process
S.W.2d
Wil
testimony
during deposition
er also stated
Roberts,
McDrilling
liam B.
Inc. v.
ability
“the
to evaluate
he did not hаve
Inc.,
(Tex.Civ.App.
339-40
refers
ability.” Gillum also
his [Gillum’s]
1979, writ). Moreover,
—Corpus Christi
no
May
“To
It
letters addressed Whom
to two
presumed.
fraud will never be
Garcia
stated that Gil-
Porter
Concern” which
(Tex.App.—
312
Rutledge, 649 S.W.2d
capable, conscientious member
lum “is a
1982, writ);
B. Rob
Amarillo
William
that Gillum was
our Medical Staff”
erts, Inc.,
Moreover,
allegedly truth of his statements. See St.
the statement
727, 731, 88
privileged
Thompson,
as a matter
390 U.S.
S.Ct.
made
Porter was
(1968).
Signifi
privilege
granted
A
Furthermore, Gillum’s contention that
Porter’s statement that not he could evalu- ability
ate Gillum’s as a surgeon was some-
how an admission of his malicious intent is
without merit. Porter’s honest admission ability could evaluate Gillum’s McKELLAR, (Buddy) Edwin I. surgeon certainly as a did not affect Port- III, Appellant, ability background er’s to state Gillum’s Accordingly,
and credentials. because alleged only defamatory made statement Mary MARSAC, Appellee. Esther privileged about Gillum as a matter No. 01-88-01077-CV. court properly the trial entered sum- against mary judgment def- Gillum on his Texas, Appeals Court amation claim. We overrule sev- (1st Dist.). Houston judg- enth of error and affirm the Sept. ment of the trial court. WHITHAM, J., concurs.
WHITHAM, Justice, concurring.
I concur I do not result. While my each of ma-
address concerns with the