Opinion

Opinion issued January 29, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00096-CV

__________

AMERICAN ACADEMY OF EMERGENCY MEDICINE, Appellant

V.

MEMORIAL HERMANN HEALTHCARE SYSTEM, INC., TEAM

HEALTH, INC., AND ACS PRIMARY CARE PHYSICIANS-SOUTHWEST,

P.A., Appellees

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Cause No. 2007-52841-A

O P I N I O N

Appellant, American Academy of Emergency Medicine ("AAEM"), challenges

the trial court's order granting the pleas to the jurisdiction of appellees, Memorial

Hermann Healthcare System, Inc., TeamHealth, Inc., and ACS Primary Care

Physicians-Southwest, P.A., in AAEM's suit for declaratory judgment. In its sole

issue, AAEM contends that the trial court erred in granting appellees' pleas and

dismissing its claims for lack of subject matter jurisdiction.

We affirm.

Factual and Procedural Background

AAEM is a non-profit corporation "formed to promote greater professionalism

in emergency medicine" with a "national membership of approximately 5,000

emergency physicians," many of whom practice emergency medicine in the State of

Texas." In this suit, (1) AAEM alleges that appellees are engaging in a business practice

that violates Texas laws prohibiting the corporate practice of medicine, including

laws prohibiting "non-licensed persons or entities from practicing medicine,

employing physicians, assisting in the unlicensed practice of medicine, . . . sharing

of professional fees with physicians," and "restraining trade in the emergency

medicine profession." (2) AAEM asserts that it has a "direct interest in the outcome of

the proceeding in that [it] represent[s] many practicing physicians in Texas and the

nation with professional interest in the enforcement" of Texas laws prohibiting the

corporate practice of medicine as well as an interest in the "use of non-competition

and non-solicitation agreements for emergency physicians" in Texas.

In its petition, AAEM generally complains of two alleged agreements that,

according to AAEM, violated the prohibitions against the corporate practice of

medicine. First, AAEM complains of an agreement between TeamHealth and

Memorial that allegedly provided that Memorial would pay TeamHealth for services

provided by physicians and TeamHealth would have "the exclusive right to hire,

terminate, manage, employ independently, contract or otherwise control the practice

of physicians at [a number of] Memorial hospitals." (3) Second, AAEM complains of

"independent contractor agreements" between ACS and unidentified physicians.

AAEM alleges that TeamHealth "illegally employs" physicians under the terms of

these agreements, which AAEM characterizes as "disguised employment agreements

designed to circumvent Texas law and Federal tax law." AAEM asserts that

TeamHealth uses its alter ego, ACS, to execute the independent contractor

agreements with unidentified physicians and that ACS is "a shell that allows

TeamHealth to illegally employ physicians [and] acquire and hold emergency services

and physician contracts, such as those of Plaintiffs and to split professional fees of

physicians." AAEM alleges that, under these illegal agreements, the physicians are

"required to assign their right to receive the monies they earn." Finally, AAEM

complains that the agreements contain "restrictive covenants" that illegally restrain

the physicians who signed them from working at certain locations and for certain time

periods upon their termination. AAEM asserts that these "restrictive covenants" are

invalid under Texas law.

AAEM attached to its petition a copy of a document entitled "Physician

Independent Contractor Agreement," which states that it is made between ACS and

an unidentified "Physician." The agreement is not executed by any party and does

not name a particular physician, but rather is only a form agreement. Similarly, in the

attached exhibits to this document, the space for identifying the independent

contractor merely states "NAME & ADDRESS." Even AAEM describes this

agreement as one between "ACS and the prospective doctor." (Emphasis added).

AAEM seeks the following declarations:

1. The bidding process utilized by Memorial was a violation of

Texas law because it solicited and accepted illegal bids from

entities violating the corporate practice of medicine prohibitions

under Texas law;

2. The financial arrangements between TeamHealth and Memorial

violate the corporate practice of medicine by allowing fee

splitting with an unlicensed corporation;

3. The contract or understandings between Memorial and

TeamHealth as to the provision of medical practitioners at

Memorial are void as they violate the corporate practice of

medicine prohibition under Texas law;

4. A declaration that Defendants purchase medical groups,

employing physicians or holding emergency services contracts in

the State of Texas is a violation of the corporate practice of

medicine and such purchases, agreements, understandings or

assignments should be declared void as a matter of law;

5. A declaration that the use of restrict[ive] covenants in the

purported independent contract agreements unfairly limits

competition, reduces the availability of otherwise qualified

physicians to practice in Harris County, Texas and forces

physicians who are subject to such agreements to continue

working for an organization in the face of violations of standard

medical procedure;

6. A declaration that TeamHealth is not legally allowed to conduct

business in the State of Texas, and as such, its contract with

Memorial should be declared void. (4)

In their plea to the jurisdiction, TeamHealth and ACS argued, among other

things, that AAEM has no standing to bring claims for declaratory judgment and there

is no justiciable controversy because there is "no contract between" the parties. In

support of their standing and justiciability arguments, TeamHealth and ACS asserted

that although AAEM is seeking declarations that certain contracts violate the

prohibitions against the corporate practice of medicine, AAEM is not a party to the

contracts, has not suffered a distinct injury, and no real controversy exists between

the parties. In its plea to the jurisdiction, Memorial similarly asserted that AAEM

lacks standing and there is no jusiticiable controversy. (5)

In its response to appellees' pleas, AAEM asserted that it has associational

standing to bring suit. First, it asserted that "each of AAEM's Harris County

members could sue in their own right if they choose but [that] by doing so, they

would risk summary termination and enforcement of a one-year non-compete"

agreement. AAEM further asserted that "[s]ome of AAEM's members are working

for Memorial under the Memorial-TeamHealth arrangement now and certainly have

an interest in whether that arrangement is legal under Texas law or violative of their

personal obligations under Texas law." Second, AAEM asserted that its "interest in

the case is established by its mission and vision statement," which includes its

statements that the "role of emergency medicine management companies should be

to help physicians manage their practice," "the practice should be owned by and

controlled by the physicians and not by a management company," and "the practice

of emergency medicine is best conducted by a specialist in emergency medicine."

Third, AAEM argued that it was not necessary for its individual members to

participate in the case because the trial court's "determination of the legality of the

Memorial/TeamHealth arrangement will apply to all members of the medical

profession practicing emergency medicine." In sum, AAEM argued that, although

it had not entered into a written contract with appellees, "by representing emergency

department physicians directly affected by the ruling sought," it had standing.

In support of its response, AAEM filed an affidavit of Dr. Robert McNamara,

"Past Presidents Council Representative to [AAEM]," in which McNamara testified

that "AAEM has over 5,000 members, some of which practice emergency medicine

in Houston, Harris County, Texas" and that "[s]ome of its members are currently on

staff at the subject Memorial emergency departments." McNamara described

AAEM's principles and positions, stating that AAEM is concerned with the use of lay

persons in the medical decision process and that it "believes that Texas law prohibits

such individuals from practicing medicine without a license." McNamara further

testified that AAEM had "joined this suit to protect its members in Harris County,

Texas," it believed there were "legal ramifications threatening the licensure" of

physicians, and it concluded that the challenged practices were "not in the best

interest" of the patients in emergency departments. McNamara also stated that

AAEM is concerned with the use of covenants-not-to-compete in the independent

contractor agreements, asserting that such covenants restrict competition, disrupt

continuity of care, "potentially disrupt the public of medical services," and violate

"sound medical practices and medical ethics." McNamara explained that AAEM

sought to have this practice discontinued on behalf of its members. Finally,

McNamara testified that although AAEM's individual members could have brought

the suit, doing so would have jeopardized their career and subjected them to

economic sanctions and "professional pressures."

In their replies, appellees asserted that AAEM had failed to remedy the

jurisdictional defects. Appellees argued, among other things, that because AAEM

had not shown that any of its members were parties to the contracts at issue, AAEM

had failed to affirmatively demonstrate that any of its members had standing to sue

in their own right, and, thus, any claim for associational standing failed.

The trial court granted appellees' pleas to the jurisdiction and dismissed

AAEM's claims.

Standard of Review

A plea to the jurisdiction seeks dismissal of a case for lack of subject-matter

jurisdiction. Tex. Dep't of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999). When

reviewing a trial court's ruling on a plea to the jurisdiction, we construe the pleadings

in favor of the plaintiff. See Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d

217, 226 (Tex. 2004); Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440,

446 (Tex. 1993). Whether a pleader has alleged facts that affirmatively demonstrate

a trial court's subject matter jurisdiction is a question of law that we review de novo.

See Tex. Dep't of Parks & Wildlife , 133 S.W.3d at 226 . "Likewise, whether

undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is

also a question of law." Id . "If a plea to the jurisdiction challenges the existence of

jurisdictional facts, we consider relevant evidence submitted by the parties when

necessary to resolve the jurisdictional issues raised." Id . at 227. "If the relevant

evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the

trial court rules on the plea to the jurisdiction as a matter of law." Id . at 228. "If the

evidence creates a fact question regarding the jurisdictional issue, then the trial court

cannot grant the plea to the jurisdiction." Id . at 227-28.

Associational Standing

In its sole issue, AAEM argues that the trial court erred in granting appellees'

pleas and dismissing its claims for lack of subject matter jurisdiction because

AAEM's individual members could have sued in their own right, the interests of

AAEM were germane to its purposes, the members of AAEM did not have to be

parties to the suit as AAEM was not seeking damages, and the relief sought by

AAEM would benefit its members without their participation. The parties agree that

the central issue presented in this appeal is whether AAEM has associational standing

to bring suit. (6)

"The general test for standing in Texas requires that there (a) shall be a real

controversy between the parties, which (b) will be actually determined by the judicial

declaration sought." Tex. Ass'n of Bus. , 852 S.W.2d at 446 (citation omitted).

Additionally, an association claiming associational standing to bring suit must show

that: (1) its members have standing to sue on their own behalf, (2) the interests the

organization seeks to protect are germane to the organization's purpose, and (3)

neither the claim nor the relief requested requires the participation of individual

members in the lawsuit. S. Tex. Water Auth. v. Lomas , 223 S.W.3d 304, 308 (Tex.

2007); Tex. Ass'n of Bus. , 852 S.W.2d at 447-48 ; Wilchester W. Concerned

Homeowners LDEF, Inc. v. Wilchester W. Fund, Inc. , 177 S.W.3d 552, 561 (Tex.

App.--Houston [1st Dist.] 2005, pet. denied). All parties agree that AAEM meets the

second requirement for associational standing. Thus, we focus on the first and third

requirements in determining whether AAEM has associational standing.

As a preliminary matter, we note that AAEM seeks declarations that can be

divided between those related to the alleged contract between TeamHealth and

Memorial governing TeamHealth's operations at Memorial's hospitals and those

related to the independent contractor agreements identifying the potential contracting

parties as ACS and unidentified, prospective physicians . We address the requested

declarations related to the independent contractor agreements separately from the

requested declarations related to the alleged TeamHealth and Memorial contract

because each category of declarations more clearly fails a different requirement for

associational standing. We then address AAEM's claims for declarations regarding

the restrictive covenants in the independent contractor agreements to the extent that

those claims are not resolved by our other holdings.

To meet the first requirement of associational standing, AAEM must show that

its members have standing to sue in their own right. S. Tex. Water Auth. , 223 S.W.3d

at 308 . This requirement "should not be interpreted to impose unreasonable obstacles

to associational representation," and the purpose of this requirement "is simply to

weed out plaintiffs who try to bring cases, which could not otherwise be brought, by

manufacturing allegations of standing that lack any real foundation." Tex. Ass'n of

Bus. , 852 S.W.2d at 447 (citations omitted).

In regard to AAEM's claims for declarations related to the alleged contract

between Memorial and TeamHealth, AAEM has made no argument explaining how

its individual members would have standing to seek declaratory relief on this

contract. Although this contract is not contained in the record, it is undisputed that

neither AAEM nor its member physicians are parties to this contract. It is also

undisputed that AAEM does not represent any of the parties to the contract. The

membership of AAEM, according to AAEM's own allegations and evidence, is

limited to emergency physicians, and AAEM's alleged "direct interest" in the case

arises from the physician members' alleged "professional interest." Moreover, even

assuming that AAEM has alleged, or that the record contains evidence demonstrating,

that AAEM member physicians may be engaging in the corporate practice of

medicine at Memorial hospitals, there is nothing in the record to suggest that these

physicians are doing so pursuant to the Memorial TeamHealth contract. (7) For

example, there is no evidence, or even allegation, that the individual AAEM member

physicians are identified in the Memorial TeamHealth contract or that the Memorial

TeamHealth contract requires the employment of specific physicians, including those

who are AAEM members. There is also no evidence, or allegation, that the

physicians practicing at the Memorial hospitals are bound to or governed by the

Memorial TeamHealth contract in any way. Rather, to the extent that AAEM has

even alleged or that the record contains evidence demonstrating that AAEM member

physicians may be engaging in the corporate practice of medicine at Memorial

hospitals, it is clear that they must be doing so pursuant to the independent contractor

agreements.

Additionally, to the extent that the record before us even establishes the

existence of a real controversy involving AAEM member physicians, (8) we conclude

that the question of whether AAEM's member physicians are engaging in the

corporate practice of medicine at Memorial hospitals would not be resolved by

judicial declarations related to any contract between Memorial and TeamHealth. See

id. at 446 (reciting general test of standing as including requirement that controversy

"will be actually determined by the judicial declaration sought") (citations omitted).

Thus, we hold that AAEM's allegations, as well as the evidence in the record,

affirmatively demonstrate that AAEM's member physicians would not have

individual standing to seek declaratory relief regarding the alleged contract between

Memorial and TeamHealth. Accordingly, we further hold that AAEM lacks

associational standing to pursue its declaratory claims related to this alleged contract.

See S. Tex. Water Auth. , 223 S.W.3d at 308 (concluding that no member of

association had demonstrated individual standing to contest contract and, thus,

association lacked standing to sue on behalf of its members). (9)

We now turn to AAEM's claims for declarations related to the independent

contractor agreements. To meet the third requirement of associational standing,

AAEM's pleadings and the record must demonstrate that "neither the nature of the

claim asserted nor the relief sought requires the participation of the individual

members in the lawsuit." 223 S.W.3d at 308 . If an association seeks damages on

behalf of its members "or must otherwise prove the members' individual

circumstances to obtain relief, participation of the individual members is required,

and the third prong is not satisfied." Tex. Mun. League Intergovernmental Risk Pool

v. Burns , 209 S.W.3d 806, 815 (Tex. App.--Fort Worth 2006, no pet.). In contrast,

an association that "seeks only prospective relief, raises only issues of law, and need

not prove the individual circumstances of its members to obtain that relief" satisfies

the third requirement for associational standing. Tex. Ass'n of Bus ., 852 S.W.2d at

447-48 .

In regard to AAEM's claims for declarations related to the independent

contractor agreements, AAEM asserts that some of its member physicians are on staff

at Memorial emergency departments and that, in order to work at these departments,

physicians are required to enter into independent contractor agreements. AAEM also

cites Dr. McNamara's testimony that AAEM member physicians are on staff at

Memorial emergency departments and that AAEM brought suit because it believed

there were "legal ramifications" to AAEM's physicians, and physicians generally, for

"participation in the corporate practice of medicine." AAEM also asserts that its

individual member physicians did not file suit because, by doing so, they would face

substantial risk to their professional careers and livelihoods.

As AAEM states in its appellate briefing, the "central question" in this suit is

whether physicians, including its member physicians, are engaging in the corporate

practice of medicine in violation of Texas laws by practicing at Memorial hospitals

under some version of an independent contractor agreement, which AAEM asserts

is nothing more than a disguised employee agreement. We conclude that AAEM's

claims for declaratory relief on whether its physicians are violating Texas law by

practicing at Memorial hospitals under some version of an independent contractor

agreement, alleged to be similar to the form agreement attached to AAEM's petition,

do not present pure issues of law, but instead require individualized inquiry and fact-intensive analysis. See Tex. Soc'y of Prof'l Eng'rs v. Tex. Bd. of Architectural

Exam'rs , No. 03-08-00288-CV, 2008 WL 4682446 , at *4 (Tex. App.--Austin Oct.

24, 2008, no pet.).

We recognize that AAEM has pleaded for declaratory relief, which may

sometimes present pure questions of law that do not require the participation of an

association's individual members. See Tex. State Bd. of Podiatric Med. Examiners

v. Tex. Orthopaedic Ass'n , No. 03-04-00253-CV, 2004 WL 2556917 , at *3 (Tex.

App.--Austin Nov. 12, 2004, no pet.) (concluding that association seeking

declaration to invalidate rule adopted by state board defining foot as including part

of ankle met third prong of standing requirement because declaration sought by

association presented "question of law that [did] not require the participation of

individual members" and "relief sought [was] a declaratory ruling that would be

uniformly applied to physicians and podiatrists"). Here, however, based upon the

type of declarations AAEM is seeking, it will be necessary for a trial court to review

the particular conduct of the individual member physicians as well as the particular

contracts entered into by the individual member physicians to determine if the

physicians or TeamHealth, through its alleged alter ego ACS, are violating the

prohibitions against the corporate practice of medicine by entering into and

conducting themselves under the independent contractor agreements . See id.

In this case, AAEM seeks declarations related to a form contract that has not

been executed by any party. Even AAEM characterizes these independent contractor

agreements as agreements between ACS and prospective physicians. Without

evidence as to the terms of the agreements actually entered into by the AAEM

member physicians and the conduct of the parties under the challenged agreements,

a trial court would not be able to resolve the issues and to make declarations like

those sought by AAEM. In sum, we conclude that in order for AAEM to obtain

declaratory relief as to whether or not its individual physician members are engaging

in the corporate practice of medicine while practicing at Memorial hospitals, it would

be necessary for AAEM to provide evidence on the individual circumstances of its

members. See id. Accordingly, we hold that AAEM lacks associational standing to

pursue its declaratory claims related to the independent contractor agreements.

Finally, to the extent the above holdings do not resolve the entire issues raised

herein, we address AAEM's claims for declarations related to the restrictive

covenants contained in the form, non-executed independent contractor agreements.

Here, AAEM has neither made any allegation nor presented any evidence

demonstrating that a real controversy exists in regard to these complained-of

covenants. For example, AAEM has not made any allegation that appellees have

sought to enforce a restrictive covenant contained in an agreement between ACS and

AAEM member physicians. AAEM only generally alleges that the use of restrictive

covenants is invalid under Texas law. The only evidence contained in the record

even remotely related to the existence of a real controversy between the parties is

McNamara's vague testimony about possible "legal ramifications threatening the

licensure" of individual physicians, but this testimony was not tied to the restrictive

covenants. We conclude that the pleadings and the record affirmatively demonstrate

the lack of a real controversy in this regard. Accordingly, we hold that AAEM lacks

associational standing to bring claims for declarations related to these restrictive

covenants.

We overrule AAEM's sole issue.

Conclusion

We affirm the order of the trial court dismissing AAEM's claims for lack of

subject matter jurisdiction.

Terry Jennings

Justice

Panel consists of Justices Jennings, Hanks, and Bland.

1. AAEM filed suit jointly with Humble Emergency Physicians, P.A. ("HEPPA"). The

trial court severed AAEM's claims into a separate cause of action, and HEPPA is not

a party to this appeal.

2.

AAEM asserts that appellees violated, among other statutes, specific provisions of the

Texas Occupations Code. See Tex. Occ. Code Ann. § 164.051 (a)(1) (Vernon 2004)

(stating that Texas Medical Board "may refuse to admit a person to its examination

or refuse to issue a license to practice medicine and may take disciplinary action

against a person if the person: (1) commits an act prohibited under Section 164.052");

Id . § 164.052(a)(5), (a)(17) (Vernon 2004) (stating that "physician or an applicant for

a license to practice medicine commits a prohibited practice if that person: (5)

commits unprofessional or dishonorable conduct that is likely to deceive or defraud

the public, as provided by Section 164.053, or injure the public; . . . (17) directly or

indirectly aids or abets the practice of medicine by a person, partnership, association,

or corporation that is not licensed to practice medicine by the board"); Id . §

164.053(a)(9) (Vernon 2004) (stating that "[f]or purposes of Section 164.052(a)(5),

unprofessional or dishonorable conduct likely to deceive or defraud the public

includes conduct in which a physician: (9) delegates professional medical

responsibility or acts to a person if the delegating physician knows or has reason to

know that the person is not qualified by training, experience, or licensure to perform

the responsibility or acts"); Id . § 165.156 (Vernon 2004) (stating, in section entitled

"Misrepresentation Regarding Entitlement to Practice Medicine," that "[a] person,

partnership, trust, association, or corporation commits an offense if the person,

partnership, trust, association, or corporation, through the use of any letters, words,

or terms affixed on stationery or on advertisements, or in any other manner, indicates

that the person, partnership, trust, association, or corporation is entitled to practice

medicine if the person, partnership, trust, association, or corporation is not licensed

to do so").

3.

AAEM referred to an "emergency services agreement embodied in a letter of

understanding between Memorial and TeamHealth." The record does not contain a

copy of any such agreement, or any other agreement between Memorial and

TeamHealth, but it is undisputed that neither AAEM nor its individual physician

members are signatories to any agreement between Memorial and TeamHealth.

4.

Some of the declarations sought below relate more specifically to the claims brought

by HEPPA, which were severed into a separate action. In its petition, HEPPA

specifically complained of the bidding process conducted by Memorial for staffing

services at its emergency departments, which the parties represent was the bidding

process that TeamHealth ultimately won. HEPPA brought numerous business tort

claims related to this bidding process. Because HEPPA's claims were severed into

a separate action, we do not consider any of HEPPA's claims. In its reply brief,

AAEM concedes that some of the declarations relate to the relief sought by members

of HEPPA as members of AAEM.

5.

In post-submission briefing, Memorial asserts that "the only allegations of harm

proffered in [AAEM's] petition and supporting evidence are hypothetical and

speculative scenarios" and that neither AAEM nor its members can "demonstrate a

likelihood of enforcement of criminal penalties related to the corporate practice of

medicine or a realistic danger to their licensure and practice."

6.

It is undisputed that AAEM is not a party to any of the challenged contracts, and

AAEM is not arguing that it possesses standing individually to seek the declaratory

relief it has requested.

7.

As noted by Memorial in its post-submission briefing, AAEM has not demonstrated

that "its individual members' medical licenses are 'subject to' the terms of the

contract between [Memorial] and TeamHealth or that their licenses or livelihood

could even be at risk or affected by the terms" of the alleged contract between

Memorial and TeamHealth. Moreover, AAEM has not alleged that any contract

between Memorial and TeamHealth "contains provisions that would subject AAEM's

individual members (as opposed to [Memorial and TeamHealth]) to sanction or

prosecution for violating the prohibition against the corporate practice of medicine."

8.

For example, a real controversy might be demonstrated by evidence that AAEM

member physicians are facing threats to their licensing by practicing medicine at

Memorial's hospitals pursuant to the challenged contracts. See Tex. Ass'n of Bus. v.

Tex. Air Control Bd. , 852 S.W.2d 440, 447-48 (Tex. 1993) (concluding that Texas

Association of Business met first requirement of associational standing by showing

that its members had been assessed administrative penalties under challenged

enactments and by alleging that its members remained "at substantial risk of

penalty").

9.

In support of its argument that a physician could, in his own right, "clearly" sue to

have "a practice that was violative of sound medical practice and ethics" declared

illegal and void, AAEM relies on Penny v. Orthalliance, Inc. , 255 F. Supp. 2d 579

(N.D. Tex. 2003). AAEM reasons that an organization with members "affected by

contractual arrangements" should also be entitled to bring suit on the members'

behalf. However, the situation addressed in Penny is substantially different than that

addressed in the instant case. In Penny , individual dentists brought suit against

Orthalliance, a provider of business and consulting services to orthodontic entities,

because Orthalliance had failed to perform its obligations under a series of agreements

actually executed by the parties and third party practice groups. Id . at 579-80. The

individual dentists brought suit seeking declarations that the parties' agreements

constituted the unauthorized practice of dentistry, and the individual dentists

presented the court with specific contracts that they had entered into and operated

under with Orthalliance. Id . Penny did not involve claims brought by an association

seeking to represent the interests of members through obtaining declarations related

to form contracts that identified only prospective parties . See id. Moreover, although

the individual dentists in Penny sought declarations regarding a series of agreements

including some agreements between Orthalliance and practice groups to which they

were not parties, the record contained evidence that the individual dentists were

identified by name in these contracts. Id.