                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-14-00297-CV


                  CONCORD MEDICAL GROUP, INC., APPELLANT

                                           V.

         DALLAM-HARTLEY COUNTIES HOSPITAL DISTRICT, APPELLEE

                           On Appeal from the 69th District Court
                                    Hartley County, Texas
                   Trial Court No. 4712H, Honorable Ron Enns, Presiding

                                  November 24, 2015

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Concord Medical Group, Inc. (Concord) sued Dallam-Hartley Counties Hospital

District (the Hospital) for breach of contract.    The two entities had contracted for

Concord to provide the Hospital with emergency room physicians.             The contract

contained a provision restricting the Hospital’s ability to allow the physicians to “work”

with the Hospital “independent” of Concord. Once that agreement ended, the three

physicians provided by Concord later appeared at the Hospital to perform emergency

room services and did so via a different contract executed between the Hospital and a

third party. This circumstance allegedly constituted a breach of the aforementioned
restriction. Cross motions for summary judgment were filed. The trial court denied that

of Concord but granted that of the Hospital. In granting the latter, the trial court decreed

that Concord take nothing from the Hospital. Concord appealed, contending that the

trial court erred in granting the summary judgment.1 We reverse.

       The motion for summary judgment here was traditional in nature. Thus, the

burden lay with the movant (that is, the Hospital) to prove its entitlement to same as a

matter of law.      Cantey Hanger, LLP. V. Byrd, 467 S.W.3d 477, 481 (Tex. 2015).

Furthermore, only two grounds were mentioned by the Hospital as basis for summary

judgment.2 One involved the allegation that the Hospital did not “employ” the physicians

once they left Concord. The other involved the proposition that the restriction was

unenforceable per Hospital Consultants, Inc. v. Potyka, 531 S.W.2d 657 (Tex. Civ.

App.—San Antonio 1975, writ refd n.r.e), since it “serve[d] no legitimate purpose other

than to eliminate competition between Concord and ESS.”3

       The trial court did not specify the ground upon which it relied in granting the

motion.     Thus, we must determine whether either supported the decision.                         See

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003) (stating

that “[b]ecause the trial court's order does not specify the grounds for its summary

judgment, we must affirm the summary judgment if any of the theories presented to the



       1
        Concord does not contend, on appeal, that the trial court erred in denying it’s motion for
summary judgment.
       2
          The Hospital also asserts on appeal that summary judgment was warranted because the
covenant expired when the contract between Concord and the Hospital ended. Because this ground was
not mentioned in its summary judgment motion, we cannot consider it as basis to affirm the trial court’s
judgment. State Farm Lloyds v. Page, 315 S.W.3d 525, 532 (Tex. 2010) (stating that a “[s]ummary
judgment may not be affirmed on appeal on a ground not presented to the trial court in the motion.”).
       3
        ESS was the entity with which the Hospital contracted to supply doctors after the Concord
arrangement ended.
                                              2
trial court and preserved for appellate review are meritorious.”). The first to be

addressed is that concerning whether the Hospital employed the physicians.

       We assume arguendo that the Hospital established as a matter of law that it did

not employ the three doctors once they left Concord. Yet, that is of no consequence.

The contractual restriction at issue stated:

       6.3 Non-Competition Covenant. Should a Practice Providers [sic] in
       collaboration with Hospital elect to work in the Hospital or clinic,
       independent of the Practice, Hospital agrees to pay Practice the sum of
       twenty thousand dollars ($40,000). However, Hospital shall not contact
       providers regarding employment or contract services without the prior
       expressed written consent of Concord Medical Group.

(Emphasis added). As argued by Concord below, it does not simply encompass the

employment of “Practice Providers” (that is, the doctors provided by Concord). Rather,

it mentions “work” performed in the Hospital, and it is quite conceivable that the doctors

could be considered as working there even if they had no employment relationship with

the Hospital. For instance, “work” commonly connotes such things as 1) “activity in

which one exerts strength or faculties to do or perform something,” 2) “sustained

physical or mental effort to overcome obstacles and achieve an objective or result,” and

3) “the labor, task, or duty that is one's accustomed means of livelihood.”          Work

Definition, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/work (last

visited November 17, 2015); see also, Plains Exploration & Prod. Co. v. Torch Energy

Advisors Inc., No. 13-0597, 2015 Tex. LEXIS 558, at *21-22 (Tex. June 12, 2015)

(obligating us to assign the words of a contract “their plain, common, or generally

accepted meaning unless the contract shows that the parties” intended otherwise).

Expending strength or faculty to perform something or engaging in physical or mental

effort to achieve a result or engaging in labor that is one’s livelihood is not necessarily


                                               3
dependent upon an employment relationship.            Indeed, it could be said that the

physicians who contracted with Concord to perform emergency room services for the

Hospital were not the employees of the Hospital but, nonetheless, “worked” there.

       Our interpretation of the clause as encompassing more than employment by the

Hospital is further buttressed by other language in the clause itself. Its second sentence

barred the Hospital from contacting the physicians about “employment or contract

services” without first getting the approval of Concord.             By mentioning both

“employment” and “contract services,” the parties to the agreement must have intended

that something more than the mere “employment” of the doctors by the Hospital was

contemplated. To hold that the terms mean the same thing (that is, both meaning

employment) would be to erase the phrase “contract services” from the contract. That

we cannot do since our duty is to assign meaning to each word of the agreement. See

id. at *21-22 (discussing the rules of construction pertinent to interpreting a contract and

stating that “we consider the entire writing, harmonizing and giving effect to all the

contract provisions so that none will be rendered meaningless.”).

       So, by using “employment,” “contract services,” and “work” in the clause, we

cannot but hold that the provision restricts the Hospital from doing more than just

employing the doctors. As a result of that, the Hospital’s effort to show that it did not

employ the doctors failed to prove, as a matter of law, that it did not breach the contract.

       As for the second ground alleged in the motion for summary judgment, the

Hospital argued that because the Potyka court held unenforceable a purportedly similar

covenant, the covenant here should also be held unenforceable. To best address the

contention we turn to that opinion and the circumstances involved.



                                             4
       In Potyka, the hospital (Baptist) contracted with Bobbitt to provide the needed

physicians, and their contract contained a provision stating that:

       So long as an Emergency Room Physician is under contract with [Bobbitt]
       to provide professional services in the emergency room of any hospital,
       and for a period of three (3) years thereafter, Baptist and/or Hospitals shall
       not contract with said Emergency Room Physician to otherwise perform
       professional services in the emergency room of any Hospital, or allow said
       Emergency Room Physician to provide professional services in the
       emergency room of any Hospital, except as provided for in his contract
       with [Bobbitt]. It is understood that the foregoing provisions are for the
       protection of the rights of [Bobbitt] and are not intended to restrict the
       rights and privileges of a physician to become an active member of the
       medical staff of any Hospital after ending his contractual relationships with
       [Bobbitt].

Hospital Consultants, Inc. v. Potyka, 531 S.W.2d at 659 (emphasis added).

Furthermore, a doctor, Crow, contracted with Bobbitt to perform emergency room

services, but not at Baptist. Eventually, Bobbitt and Baptist parted ways. After that

occurred, Crow associated with another entity that provided services similar to Bobbitt,

and that service then contracted with Baptist. However, Baptist refused to accept Crow

as the physician assigned to the hospital because of the above mentioned covenant

with Bobbitt.    That led Crow to sue Baptist and Bobbitt for a declaration that the

covenant was unenforceable.         The trial court, after a jury trial, entered a judgment

finding the covenant to be unenforceable, and that judgment was affirmed on appeal.

       In affirming the decision, though, the appellate court stated that “[i]n the absence

of facts making the ‘customer contact’ theory applicable or showing a breach of trust or

confidence arising from improper use by Crow of Bobbitt's trade secrets, customer list,

etc., enforcement of the Bobbitt-Baptist covenant would only have the effect of

insulating Bobbitt against competition by Emergency Room Affiliates.”4                 Id. at 665


       4
        Emergency Room Affiliates was the entity with which Baptist contracted to provide emergency
room physicians once the contract with Bobbitt ended.
                                                   5
(emphasis added). From this language we observe that the outcome in Potyka was

rather fact dependent or situational. In other words, the various categories of missing

information compelled the result. The result was not compelled by some per se rule

rendering unenforceable all covenants like that dealt with in Potyka, as the Hospital

seems to suggest here.       And, given that the Hospital filed a traditional motion for

summary judgment, it had the burden to prove its entitlement to judgment as a matter of

law. Satisfying that burden would necessarily include the obligation to prove that the

same categories of pivotal information found missing in Potyka was also missing here

before one could reasonably deduce that the Potyka holding controlled our situation.

But, the Hospital did not attempt to do that.

       Also of import to the court in Potyka was the fact that the covenant barred Baptist

from using the services of Crow even though Crow had not worked previously at

Baptist. Id. “It requires great imagination to understand how a physician assigned to

another hospital and who had had no association whatever with Baptist, would be in a

position to take advantage of the fact that he had been assigned to such other hospital

in order to induce Baptist to ‘eliminate’ Bobbitt,” stated the Potyka panel. Id. At bar,

each physician apparently worked at the Hospital under the latter’s contract with

Concord.

       We further observe that unlike the clause in Potyka, the covenant here did not

bar the Hospital from using the physicians provided by Concord. Instead, the Hospital

was free to have them work at the facility if it paid Concord a particular sum of money.

What the outcome in Potyka would have been if that circumstance were present is an

exercise in speculation. Nonetheless, it further prevents us from simply adopting the

position offered by the Hospital; we cannot simply say that because the covenant was

                                                6
unenforceable there, a different one having somewhat similar affect is also

unenforceable.

       One more circumstance present in Potyka but missing here merits comment.

The doctor barred from working in Potyka (i.e. Crow) complained about the covenant

and how it restricted his ability to work with Baptist. Nothing of record suggests that the

physicians here had a like complaint. Nor did they bring suit to vitiate the clause.

Instead, the Hospital attempts to render unenforceable a contractual provision to which

it agreed.

       In short, the outcome in Potyka arose from circumstances particular to Potyka.

The summary judgment record before us does not illustrate that the circumstances

there are the circumstances here. So, the Hospital did not prove its entitlement to

summary judgment here by simply relying on the outcome there.

       Having determined that neither ground offered by the Hospital entitled it to

summary judgment as a matter of law, we sustain Concord’s issue, reverse the

summary judgment denying Concord recovery, and remand the cause to the trial court.

We also caution against anyone concluding from our decision that the covenant at issue

here is valid and enforceable. We simply hold that the Hospital was not entitled to

summary judgment given the grounds asserted in its motion and the tenor of the

summary judgment record.



                                                               Brian Quinn
                                                               Chief Justice




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