### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 60292 Summary Calendar

SOMPRASONG SONGCHAROEN, Doctor; S. SONGCHAROEN, M.D., FACS , P.L.L.C.,

Plaintiffs

- Appellees

v.
PLASTIC & HAND SURGERY ASSOCIATES, P.L.L.C.,

Defendant

- Appellant

Appeal from the United States District Court for the Sou thern District of Mississippi USDC No. 3:11

- CV

- 308

Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges

. PER CURIAM: * This case represents the last remnant of a larger dispute between these parties. In 2007, Dr. Somprasong Songcharoe n withdrew from his medical practice, Plastic and Hand Surgery Associates, P

. L

. L

. C

. (“PHSA”)

. Several years later, he filed suit against PHSA under the contracts govern ing the rights and obligations of the physicians in the PHSA medical practice . After a

* Pursuant to 5 TH C IR . R. 47 .5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 7, 2016

Lyle W. Cayce Clerk Case: 15-60292 Document: 00513333793 Page: 1 Date Filed: 01/07/2016No. 15

- 60292

2 jury trial and subsequent appeal, the only remaining issue is PHSA ’s
count er claim raising breach of contract a nd quasi

- contract theories

. The district court granted Dr. Songcharoen ’s summary judgment motion on PHSA ’s
count er claim . We AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND The facts relevant to this appeal are straightforward and undisputed. 1 The relationship between the parties is go verned by two contracts. First, o n January 1, 2002, Dr. Songcharoen and his limited liability company, S. Songcharoen, M.D., FACS , P.L.L.C . (“ Songcharoen P.L.L.C.”) , entered into an Operating Agreement making them members of the PHSA medical practice.
Th e Operating Agreement is not at issue in this appeal. Second, on the same day, Songcharoen P.L.L.C. entered into a Physician Professional Services Contract (the “Service Contract” or “Contract” ) under which Dr. Songcharoen agreed to provide professional services for PHSA. After executing these agreements, Dr. Songcharoen took “senior status”

pu rsuant to the terms of the Service Contract . The relevant contractual provision states:
21.1 Eligibility for Part

- Time or Senior Status. At s uch time as Physician has practiced medicine in Jackson, Mississippi for at least fifteen (15) years in the aggregate, Contractor shall be entitled to provide PHSA with at least six (6) months’ prior written notice of Physician’s desire to convert to part

- time status or senior status. Part

- time status will involve a change in compensation pursuant to Section 21.3, whereas conversion to senior status affects only call obligations in accordance with Section 21.4. In addition, the three original shareholders o f Plastic Surgery Associates, P.A. shall be entitled to convert to part

- time or senior status upon at least six (6) months’ prior written notice. Unless

1 We set forth a full recitation of the facts and background of the entire dispute between t hese parties in Songcharoen v. Plastic & Hand Surgery Assoc iate s, P.L.L.C. , 561 F. App’x 327 (5th Cir. 2014). Case: 15-60292 Document: 00513333793 Page: 2 Date Filed: 01/07/2016No. 15

- 60292

3 PHSA’s Membership unanimously agrees in writing, part

- time or senior status shall be allowed for only u p to five (5) years. The parties shall negotiate and agree in writing on the compensation and other terms applic able to any extension beyond five years of part

- time or senior status. By taking senior status, Dr. Songcharoen was largely ex empt from weekend or after

- hours “ call ” responsibilities

. Being on “call” means that a physician is available by phone if needed by a patient or the hospital. Specifically, th e Service Contract provided:
21.4 Call. Physicians who voluntarily convert to senior or part

tim e status pursuant to this Article 21 shall not be required to take weekend or after

- hours call responsibilities provided that at least five (5) full

- time and call

- taking surgeons remain direct or indirect members of PHSA. In January 2007, at the end of his five

- year stint of senior status, Dr. Songcharoen gave written notice of his intent to resign from PHSA

. The parties agreed to set an official resignation date of December 31, 2007. 2
I mmediately after resigning from PHSA, Dr. Songcharoen moved his practice to a new firm, Mississippi Premier Plastic Surgery, P.L.L.C. On December 30, 2010, Dr. Songcharoen filed suit against PHSA asserting a number of claims. P HSA filed a counterclaim alleging , amongst other things, that Dr. Songcharoen was not entitled to the call

- time exemption benefit he received during his senior status because he did not completely retire fr om medical practice after leaving PHSA

. Specifically, PHSA asserted breach of cont ract and quasi

- contract theories, seeking rep ayment of the value of the call time that Dr. Songcharoen avoided by taking senior status

. T he dispute was initially resolved thr ough summary judg ment briefing
and a jury trial

. In particula r, PHSA’s counterclaim for call

- time damages was

2 Under the terms of this agreement, Dr. Songcharoen was responsible for his pro rata share of call duties

— i.e. , he could no longer claim the senior status call exemption

— until his resignation on December 31, 2007

. Case: 15-60292 Document: 00513333793 Page: 3 Date Filed: 01/07/2016No. 15

- 60292

4 dismissed at su mmary judgment as t ime

- barred

. On appeal, we affirmed as to
all issues exce pt PHSA’s counterclaim for call

- time damages, which we remanded for further consideration. See Songcharoen v. Plastic & Hand Surgery Assoc s

. , P.L.L.C. , 561 F. App’x 327 (5th Cir. 2014) (“ Songcharoen I ”)

. On remand, Dr. Songcharoen filed a renewed moti on for summary judgment
as to P H S A’s counterclaim. The district court granted Dr. Songcharoen ’s motion and PHSA now appeals.
II. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo ,

a pplying the same standard as the district court. Am. Family Life Assurance Co. of Columbus v. Biles , 714 F.3d 887, 895 (5th Cir. 2013)

. Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “ A genuine dispu te of material fact means that evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C. , 736 F.3d 396, 400 (5th Cir. 2013) (citation and internal quotation marks omitted). As this appeal only involves state law claims, Mississippi su bstantive law and federal procedural law apply. See Songcharoen I , 561 F. App’x at 332 (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 , 78 (1938) )

. 3

3 A note on jurisdiction: as we explained in Songcharoen I , Dr. Songcharoen originally asserted claims for breach of contract, hostile work environment, and ag e discrimination

. See Songcharoen I , 561 F. App’x at 332

. PHSA invoked federal subject matter ju risdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367 and removed the action to federal district court

. Although Dr. Songcharoen’ s claims under federal law were later voluntarily dismissed, the district court continue d to exercise supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367

. We now have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. Case: 15-60292 Document: 00513333793 Page: 4 Date Filed: 01/07/2016No. 15

- 60292

5 III. DISCUSSION A. PHSA’s primary argument on appeal is that Dr. Songcharoen was required, under the Service Co ntract, to retire from the medical profession following his completion of five years in senior status. In other words, PHSA claims that retirement was a necessary condition under the contract for Dr. Songcharoen to receive the benefit of avoiding call dut y for five years. We disagree, as PHSA’s argument is no t supported by the clear and unambiguous terms of the Service C ontract. Under Mississippi law, a party asserting a breach of contract claim must prove (1) the existence of a valid and binding contract, and (2) t hat the defendant breache d that contract. Bus. Commc’ ns, Inc. v. Banks , 90 So. 3d 1221, 1224

– 25 (Miss. 2012) . The parties agree that the Service Contract is a valid and binding contract; the only issue is whether Dr. Songcharoen breach ed the contract by not retiring from the medical profession after his five

- year period of senior status. In interpreting the meaning of a contract, Mississippi courts first “ look
to the ‘four corners’ of the agreement and review the actual language the

par ties used in their agreement. ” West v. West , 891 So. 2d 203, 21 0

– 1 1 (Miss. 2004)

. “ When the language of the contract is clear or unambiguous, [a reviewing court] must effectuate the parties’ intent. ” Id. at 210

. Here, Section 21.1 of the Service Contract sets out the terms and conditions for taking senior status. The provision explains who can take senior status ( the three original shareholders of PHSA upon at least six months’ prior written notice , amongst others ) , how long senio r status lasts ( up to five years), and the process for granting an extension to senior status (the PHSA’s

m embership must unanimously agree to the extension in writing , and the parties must agree in writing on the compensation and other terms applicable Case: 15-60292 Document: 00513333793 Page: 5 Date Filed: 01/07/2016No. 15

- 60292

6 to a ny extension). Section 21.1 also contains a cross

- reference to Section 21.4 , and together the two provisions largely exempt individuals on senior status from weekend and after

- hours call duty. PHSA does not argue that Dr. Songcharoen failed to comply w ith these express terms. Further, t hese provisions are clear and unambiguous, and nothing in their language suggests that Dr. Songcharoen was required to retire from the medical profession after five years of senior status. Undaunted, PHSA argues that tw o other provisions in the Service Contract

— Sections 8.A and 9.A

— support the proposition that Dr. Songcharoen was contractually required to retire from medical practice after taking senior status

. We disagree. Section 8

. A explains that : (1) t he parties may terminate or continue the Service Contract by mutual consent; otherwise (2) the Service Contract terminate s upon the earlier of Dr. Songcharoen reaching age 70 or five years from the date Dr. Songcharoen co mmenced senior
sta tus

. Section 9

. A sets out t he payments owed to Dr. Songcharoen upon the termination of the Service Contra ct. Specifically, Section 9.A states that

“ [u] pon termination by retirement at age 70 or upon five years of senior or part

time status pursuant to Section 8.A,

. . . PHSA shall make termination payments ” according to a specified formula. Section 9

. A then states that if the C ontract is terminated by mutual consent or unilaterally with one year’s notice , and Dr. Songcharoen decides to practice medicine after the Service Contract t erminates, he receives a reduced termination payment. 4 In other words, Section 9.A creates a disincentive for Dr. Songcharoen to compete with PHSA after the Service Contract terminates , but only when the C ontract is terminated by mutual consent or unilate rally with one year’s notice ; Dr.

4 In fact, Dr. Songcharoen was awarded the reduced termination payment under Section 9.A in Songcharoen I

. Case: 15-60292 Document: 00513333793 Page: 6 Date Filed: 01/07/2016No. 15

- 60292

7 Songcharoen would not be punished for continuing to practice if the C ontract terminates becau se of his age or because he completed five years of senior
status. In short, nothing in these provisions mandates Dr. Songcharoen’s retirement from the practice of medicine following senior status; they simply state that, following the completion of the five

- year period of senior status, the Service Contract automatically terminates unless further agreement between the pa rties is reached. The final arrow in PHSA’ s quiver is parol evidence that it claims pro ves that the parties intended that Dr. Songcharoen would retire from medical practice after five years of senior status . However, “ [ p ] arol evidence may be considered on ly if the contract is unclear or ambiguous and if the court is unable to translate a cle ar understanding of the parties’ intent. ” In re Estate of Fitzner , 881 So. 2d 164, 171 (Miss. 2003)

. As previously explained, the relevant provisions of the Service C ontract are clear and unambiguous; accordingly, PH SA’s p arol evidence cannot alter the Contract’s plain meaning.
Because Dr. Songcharoen complied with th e express terms of the Service C ontract as it relates to taking senior status, PHSA has failed to rais e a genuine issue of material fact in relation to its breach of contract claim for call

time damages

. B

. PHSA next turns to the implied covenant of good faith and fair dealing and the quasi

- contractual theories of unjust enrichment and restitution in an attempt to recover call

- time damages. These arguments have no force. PHSA’s quasi

- contractual theories fail because the Service Contract governs the propriety of Dr. Songcharoen taking senior status and his subsequent decision not to retire from the medical profession

. As the district court explained, quasi

- contractual claims will not lie under Mississippi law where, as here, there is an existing legal contract governing the dis pute Case: 15-60292 Document: 00513333793 Page: 7 Date Filed: 01/07/2016No. 15

- 60292

8 between the parties. See Barriffe v. Estate of Nelson , 15 3 So. 3d 613, 627 (Miss. 2014) (“ The doctrine of unjust enrichment or recovery in quasi contract applies to situations where there is no legal contract

. . . .” (quoting Dew v. Langford , 666 So

. 2d 739, 745 (Miss. 1995) ); Miss. Dep’ t of Envtl. Quality v. Pac. Chlorine,
Inc. , 100 So. 3d 432, 442 (Miss. 2012) ( “Unjust enrichment only applies to situations where there is no legal contract

. . . .” (q uoting Powell v. Campbell , 912 So. 2d 978, 982 (Miss. 2005) ); Ellis v. Anderson Tully Co. , 727 So. 2d 716, 719 (Miss. 1998) (“ To collect under an unjust enrichment or quasi

- contract theory, the claimant must show there is no legal contract

. . . .” (internal quotation marks omitted)). Similarly, P H S A c annot use the implied covenant of good faith and fair dealing to write an additional condition for taking senior status in to the Service Contract

. Simply put, a party has not breached the implied covenant of good faith and fair dealing when , as here, the party “took only those actions which were duly authorized by the contract.” Limbert v. Miss. Univ. for Women Alumnae Ass’ n, Inc. , 998 So. 2d 993, 999 (Miss. 2008) (quoting GMAC v. Baymon , 732 So. 2d 262, 269 (Miss. 1999) ). Accordingly, P H S A’s claims under the implied covenant of good faith and fair dealing and the quasi

- contractual theories of unjust enrichment and restitution cannot withstand summary judg ment. IV. CONCLUSION For the foregoing reasons, we AFFIRM. Case: 15-60292 Document: 00513333793 Page: 8 Date Filed: 01/07/2016