Affirmed and Memorandum Opinion filed May 3, 2022.

In The

Fourteenth Court of Appeals

NO. 14-21-00006-CV

TEXIENNE HOSPITAL SYSTEMS L.P. F/K/A APOLLO HOSPITAL 

SYSTEMS L.P. D/B/A APOLLO HOSPITAL, Appellant

V.

KKU SURGICAL MANAGEMENT, LLC, Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2017-43574

MEMORANDUM OPINION

A staffing company sued a hospital, claiming that the hospital had breached a 

contract by failing to pay for services rendered. The claim was tried to the bench, 

and the trial court rendered a final judgment in favor of the staffing company. The 

hospital now raises two issues for why the judgment should be reversed: first, 

because the contract is illegal and unenforceable for having violated the prohibition 

against the corporate practice of medicine; and second, because the evidence is 
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legally and factually insufficient to support the trial court’s findings. We overrule 

both issues and affirm the trial court’s judgment. 

BACKGROUND

The staffing company in this case was KKU Surgical Management, LLC, and 

the hospital was Apollo Hospital (which subsequently became known as Texienne 

Hospital Systems, L.P.). In February 2016, KKU and Apollo entered into a contract

in which KKU agreed to staff Apollo’s emergency rooms with qualified physicians.

In exchange for those staffing services, Apollo agreed to pay KKU a flat fee of 

$290,000 per month.

During the term of the contract, Apollo negotiated a sale of its facilities to 

another hospital system. That sale became effective in November 2016. The new 

hospital system paid KKU for the remainder of the contract term, but a balance still 

remained because Apollo did not pay KKU for September 2016, October 2016, or 

the first few days of November 2016, before the sale was completed.

KKU sued Apollo to recover the unpaid balance, which KKU alleged was 

$667,666.67. The case proceeded to a nonjury trial, where Apollo argued that KKU 

should recover nothing because KKU was illegally practicing medicine, or 

alternatively, because KKU’s damages were offset by its own breaches, which were 

prior and material. The trial court rejected all of Apollo’s defensive arguments. The 

trial court then signed findings of fact and conclusion of law in favor of KKU, and 

awarded KKU all of its requested relief.

CORPORATE PRACTICE OF MEDICINE

The general rule in this state is that business entities are prohibited from 

practicing medicine. See 22 Tex. Admin. Code § 177.17(a). This rule is derived from 

various provisions of the Texas Occupations Code, which requires a person to have 
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a license to practice medicine, see Tex. Occ. Code § 155.001; which prohibits such 

persons from directly or indirectly aiding or abetting the practice of medicine by an

individual or entity that is not licensed to practice medicine, see Tex. Occ. Code 

§ 164.052(a)(17); and which creates criminal penalties for any individuals or entities 

who falsely indicate in any manner an entitlement to practice medicine, see Tex. 

Occ. Code § 165.156.

The purpose behind the rule is “to preserve the vitally important doctor-patient 

relationship and prevent possible abuses resulting from lay control of corporations 

employing licensed physicians to practice medicine.” See Flynn Bros., Inc. v. First 

Med. Assocs., 715 S.W.2d 782, 785 (Tex. App.—Dallas 1986, writ ref’d n.r.e.).

There are exceptions to the rule though, and one such exception is that a 

professional association may provide a professional service—such as the practice of 

medicine—so long as its owners and employees are duly licensed to provide that 

service. See Tex. Bus. Org. Code § 301.006(a). But not every business entity is a 

“professional association.” To qualify for that status, the association must have been 

formed for the purpose of providing a professional service, and the association must 

be governed as a “professional entity.” See Tex. Bus. Org. Code § 301.003(2). And 

a “professional entity” is defined as a “professional association, professional 

corporation, or professional limited liability company.” See Tex. Bus. Org. Code 

§ 301.003(4).

KKU was formed by a duly licensed physician, but KKU was organized as an 

ordinary limited liability company, not as a professional limited liability company.

Because KKU lacked the “professional” designation, Apollo argued to the trial court 

that KKU could not legally practice medicine. Continuing with that reasoning, 

Apollo argued that its contract with KKU could not be enforced because the contract 

required KKU to practice medicine, and a court may not enforce a contract that 
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requires the performance of an illegal act. See Phillips v. Phillips, 820 S.W.2d 785, 

789 (Tex. 1991) (“Courts will not enforce a plainly illegal contract even if the parties 

do not object.”).

The trial court rejected Apollo’s argument and made the following conclusion 

of law:

The Agreement is not void nor unenforceable nor is it subject to the 

provisions contained in Tex. Occ. Code Ann. §§ 155.001, 155.003, 

157.001, 164.052(8) nor 165.156 because at all relevant times, KKU 

Surgical was owned and operated by Nhue Ho, MD, a physician 

licensed to practice medicine in the State of Texas. KKU Surgical is not 

a corporation and KKU Surgical did not maintain the necessary control 

over the physicians it placed at Apollo Hospital.

Apollo now challenges this conclusion.

We review a trial court’s legal conclusions de novo, but we defer to the trial 

court’s findings of fact if they are supported by legally sufficient evidence. See Bos 

v. Smith, 556 S.W.3d 293, 299 (Tex. 2018).

The trial court based its conclusion largely on the professional status of 

KKU’s owner, but that status was not the critical issue, as there was no dispute 

among the parties that KKU was owned by a duly licensed physician. Instead, the 

critical issue was whether the contract required KKU to practice medicine. The trial 

court did not expressly address that issue in its findings of fact and conclusions of 

law, but through its ruling, the trial court implicitly found that the contract did not 

require KKU to practice medicine. If that implied finding was supported by the 

evidence, then KKU would not be barred from enforcing the contract on the basis 

that it was organized as an ordinary limited liability company. For the following 

reasons, we conclude that the trial court’s implied finding was supported by the 

evidence.
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The plain language of the contract required KKU to “provide physician 

coverage for [Apollo’s] Emergency Department.” Nowhere in the contract was there 

any provision requiring KKU to diagnose or treat any patients, which is how the 

practice of medicine is defined. See Tex. Occ. Code § 151.002(a)(13) (“‘Practicing 

medicine’ means the diagnosis, treatment, or offer to treat a mental or physical 

disease or disorder or a physical deformity or injury by any system or method, or the 

attempt to effect cures of those conditions . . . .”). Even though KKU staffed Apollo 

with physicians who engaged in the practice of medicine, KKU did not also engage 

in the practice of medicine simply through its provision of that staffing service. See 

Doctors Hosp. at Renaissance, Ltd. v. Andrade, 493 S.W.3d 545, 549 (Tex. 2016) 

(“Renaissance, as the operator of a hospital, may be in the business of providing 

facilities, support staff, and supplies to assist doctors in the provision of medical 

care, without engaging in the illegal practice of medicine by a business entity.”).

Apollo counters that KKU practiced medicine because “not only did [KKU] 

recruit, hire and fire physicians but it also trained and supervised them.” Through 

this argument, Apollo seems to invoke the authority that an entity practices medicine 

if the entity exercises so much control over the physician that the relationship 

between the entity and the physician resembles the relationship between an employer 

and an employee. See McCoy v. FemPartners, Inc., 484 S.W.3d 201, 206–08 (Tex. 

App.—Houston [14th Dist.] 2015, no pet.) (contrasting cases where entities were 

deemed to have been illegally practicing medicine because the physician was treated 

as an employee, with other cases where entities were not deemed to have been 

illegally practicing medicine because the physician was treated as an independent 

contractor).

The trial court found that KKU “did not maintain the necessary control over 

the physicians it placed at Apollo Hospital.” Nonetheless, Apollo suggests that KKU 
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exerted control over the physicians it recruited because the contract required KKU 

to “provide a Medical Director of Emergency Services for the Emergency 

Department.” But Apollo has not cited to any evidence that KKU actually provided 

a medical director. Even if KKU had provided a medical director, Apollo has not 

cited to any evidence that KKU used the medical director (or any other individual) 

to control the manner in which its physicians diagnosed and treated patients. Absent 

such evidence, Apollo has not shown that KKU was practicing medicine. See Fite v. 

Emtel, Inc., No. 01-07-00273-CV, 2008 WL 4427676, at *7 (Tex. App.—Houston 

[1st Dist.] Oct. 2, 2008, pet. denied) (mem. op.) (holding that the appointment of a 

receiver did not violate the prohibition against the corporate practice of medicine 

because the receiver was only authorized to take control of the business operations 

of an association, and the receiver had no such authority to take any steps involving 

the dispensing of medical services).

KKU’s owner testified that all of its recruited physicians were independent 

contractors. The trial court credited that testimony when it found that “at all pertinent 

times, KKU Surgical would locate physicians to work as independent contractors.”

Deferring to this finding as we must because it is supported by the record, we 

conclude that the trial court did not err when it implicitly found that KKU was not 

practicing medicine. See Gupta v. E. Idaho Tumor Inst., Inc., 140 S.W.3d 747, 756 

(Tex. App.—Houston [14th Dist.] 2004, pet. denied) (holding that an entity did not 

exert control over a physician where “the parties’ relationship is more that of an 

independent contractor and not that of an employer/employee”). We likewise 

conclude that the trial court did not err when it determined that the contract between 

KKU and Apollo was valid and enforceable.
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SUFFICIENCY OF THE EVIDENCE

In its next issue, Apollo argues that the evidence is legally and factually 

insufficient to support the trial court’s judgment that Apollo breached its contract.

As the claimant below, KKU had the burden of proving that Apollo breached 

the contract, which means that KKU was required to produce sufficient evidence of 

the following four essential elements: (1) a valid contract exists, (2) KKU performed 

or tendered performance as contractually required, (3) Apollo breached the contract 

by failing to perform or tender performance as contractually required, and (4) KKU 

sustained damages due to the breach. See Pathfinder Oil & Gas, Inc. v. Great W. 

Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019).

When deciding whether the evidence is legally sufficient to support these 

elements, we review the entire record in the light most favorable to the challenged 

finding, crediting favorable evidence if a reasonable factfinder could and 

disregarding contrary evidence unless a reasonable factfinder could not. See City of 

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). The evidence is sufficient to 

support a finding if the evidence rises to a level that would enable reasonable and 

fair-minded people to differ in their conclusions. Id. at 822. The evidence is 

insufficient to support a finding only if (a) there is a complete absence of evidence 

of a vital fact, (b) the court is barred by rules of law or evidence from giving weight 

to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a 

vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes 

the opposite of the vital fact. Id. at 810.

The evidence produced by KKU included the contract itself, which was a valid 

agreement, as we explained in the previous section of this opinion. The contract 

obligated KKU to provide constant coverage—i.e., a physician had to be present in 

Apollo’s emergency rooms twenty-four hours per day, seven days per week. In 
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exchange for this coverage, Apollo was obligated to pay KKU $290,000 per month, 

regardless of the number of patients that the physicians actually treated. KKU’s 

owner testified that KKU provided the constant coverage as the contract required, 

but that Apollo had not paid the monthly fee for two months and for a portion of a 

third month. The owner testified that KKU’s total damages, which were prorated for 

the third month, amounted to $667,666.67. That was the same amount that the trial 

court awarded in its final judgment. Based on the record as a whole, we conclude 

that the trial court’s judgment was supported by legally sufficient evidence.

When a party challenges the factual sufficiency of a finding for which the 

party did not bear the burden of proof at trial, we review all of the evidence in a 

neutral light and will reverse only if the evidence is so contrary to the overwhelming 

weight of the evidence as to make the judgment clearly wrong and manifestly unjust. 

See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). Under 

this standard, we may not pass upon the credibility of witnesses or substitute our 

judgment for that of the factfinder, even if the evidence would clearly support a 

different result. Id. at 407.

Apollo has not clearly explained how the evidence is factually insufficient to 

support the trial court’s judgment. As the appealing party in a factual sufficiency 

challenge, Apollo had the burden of performing a comparative analysis that weighed 

the pieces of evidence in favor of the trial court’s judgment against the 

countervailing evidence. See Lion Copolymer Holdings, LLC v. Lion Polymers, LLC, 

614 S.W.3d 729, 733 (Tex. 2020) (per curiam). Apollo did not perform this analysis

or point to any evidence showing that it had not breached the contract. Instead, 

Apollo appears to have raised a slightly different issue by arguing that its own breach 

was excused because KKU committed prior material breaches.
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A prior material breach is an affirmative defense, which Apollo had the 

burden of proving. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 

(Tex. 2006). The trial court rejected Apollo’s affirmative defense when it determined

that “KKU Surgical’s claims are not barred, in whole or in part, by any defense 

asserted by the defendants.” If we construe Apollo’s appellate argument as a 

challenge to the factual sufficiency of this adverse finding, then Apollo had the 

burden of demonstrating on appeal that the adverse finding is against the great 

weight and preponderance of the evidence. See Dow Chem. Co. v. Francis, 46 

S.W.3d 237, 242 (Tex. 2001) (per curiam).

Apollo begins by pointing to evidence that KKU did not provide hospitalist 

services, as the contract had required. A hospitalist is similar to an emergency room 

physician, but a hospitalist primarily treats patients after they have been admitted 

into the hospital, and the hospitalist prepares those patients for their discharge to 

their primary care physicians. The contract included several provisions regarding 

hospitalists, including this one: “In addition, such physician coverage for the 

Emergency Department will include the provisions of hospitalist services for 

inpatient and outpatient as needed.”

Before the contract was fully executed, KKU asked to remove this provision

and others like it because KKU only intended to provide emergency physicians. 

Apollo responded by requesting KKU to simply sign the contract without any more 

changes. KKU signed the contract as requested, and there is no dispute among the 

parties that KKU did not provide Apollo with a hospitalist. Nevertheless, Apollo has 

not shown that KKU’s failure to provide a hospitalist was a prior material breach. 

The contract only required KKU to provide hospitalist services “as needed,” and the 

trial court found that “Apollo Hospital never requested KKU Surgical to provide 

hospitalist services.” The trial court’s finding is fully supported by the record. 
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KKU’s owner directly testified that Apollo never requested a hospitalist, and there 

was other testimony that Apollo had no need for KKU to provide a hospitalist 

because Apollo’s inpatient facility was very small, with only five beds, and because 

a separate association had already staffed Apollo with a hospitalist. Apollo has not 

cited to any contrary evidence showing that it had requested a hospitalist and that 

KKU failed to perform.

In a separate complaint, Apollo refers to evidence that one of KKU’s 

physicians left the premises for two hours, which meant that the emergency room 

was not staffed as contractually required. When KKU learned of this gap in 

coverage, KKU terminated its relationship with the errant physician. Apollo still 

suggests that the breach was material, but the trial court found otherwise. The trial 

court explained that the breach was not material “because the alleged incident of the 

emergency room being left unattended by a physician was for a short time and 

defendants did not incur any damages as a result.” That finding is supported by the 

record because the evidence established that no patients arrived at the emergency 

room during the brief period of the physician’s absence. Apollo has not cited any 

evidence to the contrary.

Apollo claims next that KKU committed a prior material breach because some 

of the physicians it recruited were deficient in various respects. Apollo claims that 

one physician engaged in sexual harassment, that some physicians did not know how 

to use a computer or perform sutures, and that others “did not meet the requirements 

of the contract.” Apollo has not supported these claims with any citations to the 

record, which was its burden on appeal. See Tex. R. App. P. 38.1(i). But even if we 

accepted Apollo’s claims as true, Apollo has still not identified any specific 

provisions in the contract that KKU breached.
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Moreover, even if we assumed that KKU was in breach, the trial court found 

that “KKU Surgical took steps and did remedy these incidents.” The trial court also 

found that Apollo had a contractual right to terminate the contract—with or without 

cause—and that Apollo never exercised that right, which further demonstrated that 

any breach by KKU was not material. Apollo has not pointed to any evidence that 

countervails these findings. Absent any countervailing evidence, we conclude that 

Apollo has not demonstrated that the trial court’s adverse finding is against the great 

weight and preponderance of the evidence.

Apollo finally asserts that the trial court made findings in favor of KKU on 

claims for promissory estoppel, quantum meruit, and fraud, and that the evidence is 

legally and factually insufficient to support the trial court’s judgment as to those 

claims. We need not consider these arguments because the trial court’s judgment is 

fully supported by its finding that Apollo breached its contract with KKU. See Tex. 

R. App. P. 47.1.

CONCLUSION

The trial court’s judgment is affirmed.

/s/ Tracy Christopher

Chief Justice

Panel consists of Chief Justice Christopher and Justices Bourliot and Spain.