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 Southern 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 Songcharoen 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 governing the 

rights and obligations of the physicians in the PHSA medical practice. After a 

 

* Pursuant to 5TH CIR. 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 5TH CIR. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 7, 2016

Lyle W. Cayce

Clerk

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jury trial and subsequent appeal, the only remaining issue is PHSA’s

counterclaim raising breach of contract and quasi-contract theories. The 

district court granted Dr. Songcharoen’s summary judgment motion on PHSA’s

counterclaim. We AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts relevant to this appeal are straightforward and undisputed.1 

The relationship between the parties is governed by two contracts. First, on 

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. 

The 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” 

pursuant to the terms of the Service Contract. The relevant contractual 

provision states:

21.1 Eligibility for Part-Time or Senior Status. At such 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 of 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 these 

parties in Songcharoen v. Plastic & Hand Surgery Associates, P.L.L.C., 561 F. App’x 327 (5th 

Cir. 2014). 

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PHSA’s Membership unanimously agrees in writing, part-time or 

senior status shall be allowed for only up to five (5) years. The 

parties shall negotiate and agree in writing on the compensation 

and other terms applicable to any extension beyond five years of 

part-time or senior status.

By taking senior status, Dr. Songcharoen was largely exempt 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, the Service Contract provided:

21.4 Call. Physicians who voluntarily convert to senior or parttime 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

Immediately 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. PHSA 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 from medical practice after leaving PHSA. Specifically, PHSA asserted 

breach of contract and quasi-contract theories, seeking repayment of the value 

of the call time that Dr. Songcharoen avoided by taking senior status.

The dispute was initially resolved through summary judgment briefing

and a jury trial. In particular, 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. 

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dismissed at summary judgment as time-barred. On appeal, we affirmed as to 

all issues except PHSA’s counterclaim for call-time damages, which we 

remanded for further consideration. See Songcharoen v. Plastic & Hand 

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

On remand, Dr. Songcharoen filed a renewed motion for summary judgment 

as to PHSA’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, 

applying 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 dispute 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 substantive 

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 age discrimination. See

Songcharoen I, 561 F. App’x at 332. PHSA invoked federal subject matter jurisdiction 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 continued 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.

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III. DISCUSSION

A.

PHSA’s primary argument on appeal is that Dr. Songcharoen was 

required, under the Service Contract, 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 duty for five years. We 

disagree, as PHSA’s argument is not supported by the clear and unambiguous 

terms of the Service Contract.

Under Mississippi law, a party asserting a breach of contract claim must 

prove (1) the existence of a valid and binding contract, and (2) that the 

defendant breached 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 breached 

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 

parties used in their agreement.” West v. West, 891 So. 2d 203, 210–11 (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 senior status lasts (up to five years), 

and the process for granting an extension to senior status (the PHSA’s 

membership must unanimously agree to the extension in writing, and the 

parties must agree in writing on the compensation and other terms applicable 

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to any 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 with these express terms. Further, these 

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 two 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) the parties 

may terminate or continue the Service Contract by mutual consent; otherwise 

(2) the Service Contract terminates upon the earlier of Dr. Songcharoen 

reaching age 70 or five years from the date Dr. Songcharoen commenced senior

status. Section 9.A sets out the payments owed to Dr. Songcharoen upon the 

termination of the Service Contract. Specifically, Section 9.A states that 

“[u]pon termination by retirement at age 70 or upon five years of senior or parttime status pursuant to Section 8.A, . . . PHSA shall make termination 

payments” according to a specified formula. Section 9.A then states that if the 

Contract is terminated by mutual consent or unilaterally with one year’s 

notice, and Dr. Songcharoen decides to practice medicine after the Service 

Contract terminates, 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 Contract is 

terminated by mutual consent or unilaterally with one year’s notice; Dr. 

 

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

in Songcharoen I.

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Songcharoen would not be punished for continuing to practice if the Contract 

terminates because 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 parties is reached.

The final arrow in PHSA’s quiver is parol evidence that it claims proves 

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 only if the contract is unclear or ambiguous and if the court is 

unable to translate a clear 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 Contract are clear and unambiguous; 

accordingly, PHSA’s parol evidence cannot alter the Contract’s plain meaning. 

Because Dr. Songcharoen complied with the express terms of the Service 

Contract as it relates to taking senior status, PHSA has failed to raise a 

genuine issue of material fact in relation to its breach of contract claim for calltime 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 dispute 

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between the parties. See Barriffe v. Estate of Nelson, 153 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 . . . .” (quoting 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, PHSA cannot use the implied covenant of good faith and fair 

dealing to write an additional condition for taking senior status into 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, PHSA’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 judgment.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM.

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