Opinion
Civil Action No. 3:96-CV-0301-G
October 21, 2002
MEMORANDUM ORDER
Before the court are the motions of the plaintiff and counter-defendant John Ernest Boundy ("Boundy") for summary judgment (1) on the defendants' remaining counterclaim, and (2) on Boundy's claim for affirmative relief on the ground that the doctrine of collateral estoppel precludes relitigation of the instant case. For the following reasons, Boundy's motion for summary judgment on the counterclaim is granted, but his motion for summary judgment on his claim for affirmative relief is denied.
I. BACKGROUND
This court's memorandum order of September 6, 2001, denying the motion of the defendant Bernard J. Dolenz, M.D. to dismiss or, alternatively, for summary judgment, contains a detailed discussion of the facts of this case.
Defendant Bernard J. Dolenz, M.D. ("Dolenz"), a physician and attorney, practiced medicine at the Dolenz Clinic in Dallas, Texas. Complaint ¶ 8, 13. At the Dolenz Clinic, Dolenz treated Mildred Avery ("Avery") for injuries which resulted from a slip and fall and also for a workers' compensation injury. Appendix to Plaintiff/Relator's Motion for Summary Judgment Against Defendants Bernard J. Dolenz, M.D. and Dolenz Clinic and Brief in Support Thereof Filed on July 25, 2002 ("Appendix Filed on July 25, 2002"), Exhibit 3, Affidavit of John Ernest Boundy dated June 18, 1999 ("Boundy Affidavit") ¶ 3. While under Dolenz's care, Avery signed a document entitled Assignment of Bad Faith Claim ("Assignment") which assigned to Dolenz "`any and all of [Avery's] potential bad faith claims' against Avery's insurance carrier in the event the carrier denied reasonable medical care." Id.
In 1992, Avery retained the relator John Ernest Boundy ("Boundy"), an attorney licensed to practice in Texas, to represent her in a slip and fall case. Id. ¶ 2-3. Boundy discovered that as a result of one office visit by Avery, Dolenz had sent medical claims with identical treatment codes to three different parties. Id. ¶ 3, 8. Additionally, Dolenz repeatedly billed Avery's insurance carriers for individual psychotherapy which was never performed. Id. ¶ 6, 8.
During October 1993, Avery was served with a subpoena to appear at a deposition in a lawsuit ("state court case") Dolenz had filed against Avery's worker's compensation carrier, Hartford Insurance of Dallas ("Hartford"). Id. ¶ 4. Dolenz had used the Assignment to sue Hartford for its denial of payment for Avery's medical treatment. Id.
In March 1994, Avery — represented by Boundy — intervened in the state court case. Id. ¶ 5. That court later dismissed Hartford and realigned the parties with Avery as the plaintiff and Dolenz as the defendant. Id.
Mildred Avery v. Bernard J. Dolenz, Individually and d/b/a Dolenz Clinic, and in the representative capacity of Bernard I. Dolenz, Trustee, and the Dolenz Trust, Cause Number 93-5763-H, 160th Judicial District Court, Dallas County, Texas ("state court case"). Brenda J. Dolenz-Helmer, Individually and in the representative capacity of trustee to the Dolenz Legal Defense Fund Trust, was an intervenor and cross-defendant in the case. See Petition at 1.
On May 12, 1995, Boundy filed Avery's eighth amended petition in the state court case against Dolenz and Brenda J. Dolenz-Helmer ("Dolenz-Helmer"). See Appendix Filed on July 25, 2002, Exhibit 1, Plaintiff's Eighth Amended Original Petition ("Petition"). Avery sought actual, punitive, and treble damages, attorney's fees, pre- and post-judgment interest, and equitable relief. Id. ¶ 23. The petition outlined the procedural history of the case — in particular Dolenz's initial action against Hartford, which he based on his treatment of Avery. See generally id. ¶ 5. Avery averred the following:
The only thing [Avery] ever sought from Defendant Dolenz was medical treatment from her doctor. . . . Instead she now was drawn into a heated legal battle initiated by her doctor, Defendant Dolenz, acting as a lawyer on his own behalf.
Further, unbeknownst to . . . Avery, during her treatment under Defendant Dolenz, Dolenz and Helmer was [sic] billing three separate entities for the same medical treatment provided her and billed for medical treatments not actually rendered to . . . Avery.Id. ¶ 5.
Avery alleged multiple causes of action against Dolenz in the state court case. She brought a claim for breach of the contract formed in the doctor-patient relationship as Dolenz allegedly us[ed] his medical relationship to exploit the vulnerability of his clients/patients to perpetuate his legal standing and interests. . . . Id. ¶ 6. Avery brought related claims for breach of the duty of good faith and fair dealing, breach of fiduciary duty, constructive fraud, and intentional infliction of emotional distress. Id. ¶ 7, 8, 11, 12.
Avery alleged that Dolenz-Helmer, Dolenz's daughter, acted in concert with Dolenz. Petition ¶ 22; see also id. ¶ 5.
Additionally, Avery alleged that Dolenz violated the Texas Deceptive Trade Practices Act ("DTPA") by making known misrepresentations of fact and by breaching express warranties. Id. ¶ 9. Specifically, Avery alleged that Dolenz violated the DTPA because "Dolenz represented to [Avery] that he would provide medical attention and care. . . . Instead, he . . . manipulated [Avery] for his own interests and benefit causing . . . extensive exacerbation of her conditions . . . ." Id.
Avery sued Dolenz for fraud because Avery did not realize that the Assignment took away her legal rights against her workers' compensation carrier. Id. ¶ 10. Additionally, Avery maintained that Dolenz committed fraud against her because Dolenz "failed to advise her that he was also going to potentially implicate her in a possible insurance fraud by billing multiple parties, billing for services not actually provided and use [Avery] as a mere tool or conduit to collect monies." Id.
Avery also sued the Dolenz Trust and Dolenz in his representative capacity as trustee of that trust. Against these two defendants, Avery alleged the following causes of action: trusts void as to purpose, settlor as beneficiary, other use of trust assets, irrevocable trust as alter ego, trusts as sham to perpetuate fraud, trust as conduit or tool, trust as means of evading a legal obligation or justify a wrong, and violation of the Uniform Fraudulent Transfer Act. Id. ¶ 13-20.
On August 9, 1995, the state court issued an interlocutory partial default judgment against Dolenz. Boundy Affidavit ¶ 7; see also Appendix Filed on July 25, 2002, Exhibit 2, Interlocutory Partial Default Judgment ("Interlocutory Default Judgment"). The judgment read, in pertinent part, as follows:
. . . [T]he Court is of the opinion that Defendant Dolenz has defaulted as a result of violations of Rule 13 of the Texas Rules of Civil Procedure and therefore this Court has properly striken [sic] the Defendant's pleadings pursuant to both Rule 13 and Rule 215(2)(b) of the Texas Rules of Civil Procedure. Based upon good cause as reflected in the Order on Plaintiff's Second Amended Motion for Rule 13 Sanctions, this Court is entering. Default Judgement against Defendant Dolenz, individually and d/b/a Dolenz Clinic and in the Representative Capacity of Trustee and the Dolenz Trust.
As a result, this Court is further of the opinion that Defendant Dolenz, based upon such default, has ADMITTED the allegations set forth in Plaintiff's Eighth Amended Original Petition. This Court, based upon this, enters the following Orders:
. . . [T]hat the material allegations of the Plaintiff's Eighth Amended Original Petition as to all liability issues be and the same are deemed admitted as true and correct in their entirety as stated.
IT IS THE FURTHER ORDER OF THIS COURT based upon the deemed admitted pleadings and the extensive evidence amassed and presented during the various hearings this Court is of the opinion that the various trusts as enumerated in Plaintiff's Eighth Amended Original Petition . . . are as plead, fraudulent . . . [and] are void as a matter of law. . . . [A]ny conveyance to or from any of these alleged trusts is hereby set aside . . . and all principal or income of such alleged trusts is available to satisfy the creditors of Bernard J. Dolenz.
Texas Rule of Civil Procedure 13 provides:
The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment. Attorneys or parties who shall bring a fictitious suit as an experiment to get an opinion of the court, or who shall file any fictitious pleading in a cause for such a purpose, or shall make statements in pleading which they know to be groundless and false, for the purpose of securing a delay of the trial of the cause, shall be held guilty of a contempt. If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate sanctions [sic] available under Rule 215-2b, upon the person who signed it, a represented party, or both.
Courts shall presume that pleadings, motions, and other papers are filed in good faith. No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order. "Groundless" for purposes of this rule means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law. A general denial does not constitute a violation of this rule. The amount requested for damages does not constitute a violation of this rule.
Interlocutory Default Judgment at 2-3.
On January 30, 1996, Boundy, on behalf of himself and the United States, brought this suit against Dolenz and Dolenz Clinic under the False Claims Act (the "FCA"), 31 U.S.C. § 3729-32. See generally Complaint. Boundy filed the complaint as a qui tam plaintiff under relevant provisions of the FCA. The complaint was filed in camera and under seal while a federal criminal investigation against Dolenz was under way.
Generally, a qui tam action is one in which a private party brings suit in the name of the United States and shares in the proceeds. Austin v. United States, 509 U.S. 602, 607 n. 3 (1993); see also Riley v. St. Luke's Episcopal Hospital, 252 F.3d 749, 751-58 (5th Cir. 2001) (en banc). "Qui tam" is the abbreviated version of the phrase "qui tam pro domino rege quam pro se ipso in hac parte sequitur" which, literally translated, means he "who sues on behalf of the King as well as for himself." Black's Law Dictionary 1262 (7th ed. 1999). The private plaintiff suing on behalf of the government in a qui tam action is known as the "relator." See id. at 1292. See also Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768 n. 1 (2000).
The complaint alleges that in the course of his representation of a private citizen, Boundy discovered Dolenz's fraudulent billing practices. Complaint ¶ 7. Charlotte Corbin ("Corbin") was an employee of the Army and Air Force Exchange Service, Department of Defense. Id. ¶ 15. During August 1990, Corbin injured her back on the job. Id. Three days after treatment by a physician, Corbin returned to work. Id. When her pain persisted, a friend suggested that Corbin see Dolenz, who referred her to Robert Starr, D.O. ("Starr"). Id. ¶ 16. Starr prescribed physical therapy treatments for Corbin by Dolenz. Id. On September 15, 1990, Dolenz performed an initial history and physical examination of Corbin. Id. ¶ 17. Dolenz treated Corbin for two years for psychological problems and for physical therapy. Id. ¶ 19. During this period, Boundy asserts that Dolenz and the Dolenz Clinic "filed claims to the Office of Workers Compensation, Department of Labor (1) for services not provided; (2) for services unbundled to raise the total charge for the services; and (3) for services not necessary." Id. Owing to these practices, Boundy alleges, the defendants "received payments from the United States Government in excess of the amount of money actually earned." Id. ¶ 20. The complaint lists specific dates and instances of Dolenz's fraudulent billing during the course of Corbin's treatment at the Dolenz Clinic. See, e.g., id. ¶ 17 ("Billings for services rendered at the Dolenz Clinic began on September 10, 1990, with fees billed on September 12 and September 14, 1990 for professional services. There is no record that Ms. Corbin was a patient at the Dolenz Clinic before September 15, 1990 . . . ."). Boundy further asserts that the defendants employed the same fraudulent practices in their treatment of other patients and also received excessive payments from the United States government. Id. ¶ 21.
This court granted the United States of America ("the United States") multiple extensions of time for it to consider whether to intervene in the case. On December 2, 1996, the United States did finally elect to intervene. On December 5, 1996, the court granted the United States' motion to stay this case pending the outcome of the related criminal case against Dolenz. On April 7, 1997, this court granted the United States' motion to administratively close the case. The case remained, however, under seal.
On August 3, 1998, Dolenz was found guilty of twelve counts of mail fraud. He was sentenced to 90 months in prison. Additionally, Dolenz was ordered to pay $1,680,501.47 in restitution to 45 victims, including the United States Department of Labor, the federal insurance carrier for worker compensation claims made by federal workers. On August 13, 1999, following the government's decision to withdraw its intervention, this court unsealed the qui tam complaint, and ordered the complaint served on Dolenz.
United States v. Dolenz, No. 3:98-CR-107-H (N.D. Tex. 1998), aff'd, 229 F.3d 1147 (5th Cir. 2000) (table), cert. denied, 531 U.S. 1202 (2001).
On December 21, 2000, Dolenz filed counterclaims against Boundy and others. See generally Counterclaim. Dolenz sought recovery for the filing of a frivolous lawsuit, abuse of process, and tortious interference. Id. ¶ 3-5.
On May 30, 2002, this court granted in part and denied in part Boundy's motion to dismiss or, in the alternative, for summary judgment on the defendants' counterclaim. Boundy styled that motion as a motion to dismiss the defendants' counterclaims or, in the alternative, a motion for summary judgment. Because the court considered matters outside the pleadings on the frivolous lawsuit and abuse of process claims, the motion to dismiss those claims was construed as one for summary judgment. See FED. R. CIV. P. 12(b); Memorandum Order, May 30, 2002 ("May 30, 2002 Memorandum Order"), at 3-4. In its May 30, 2002 memorandum order, this court granted Boundy's motion for summary judgment on the defendants' frivolous lawsuit and abuse of process counterclaims under the law of the case doctrine under FED. R. CIV. P. 56(c). May 30, 2002 Memorandum Order at 4-5. Because the court did not consider matters outside the pleadings on the tortious interference counterclaim, however, the court reviewed that claim under the standard for dismissal under FED. R. CIV. P. 12(b)(6). Id. at 6-7. Under the standard set by Rule 12(b)(6), the court ruled that Boundy as the movant did not meet his burden of showing that there is no set of facts which would entitle the counter-plaintiffs to relief, and his motion to dismiss the tortious interference counterclaim for failure to state a claim was denied.
Boundy now moves for summary judgment on the tortious interference counterclaim on the ground that the claim is barred by the statute of limitations. Plaintiff/Relator/ Counter Defendant's Motion for Summary Judgment against Defendants Bernard J. Dolenz, M.D. and Dolenz Clinic and Brief in Support Thereof [filed on July 23, 2002] ("July 23, 2002 Motion") at 2, 5-7. In the alternative, Boundy moves for summary judgment on that claim on the ground that Boundy's conduct was neither independently tortious nor unlawful, and/or because the counterclaim falls under the classification of strategic lawsuits against public participation. Id. at 7-9.
Boundy filed an additional motion for summary judgment asserting that he is entitled to affirmative relief on his FCA claim under the doctrine of collateral estoppel because the allegations in the complaint were fully and fairly litigated in a Texas state court. Plaintifi/Relator's Motion for Summary Judgment against Defendants Bernard J. Dolenz, M.D. and Dolenz Clinic and Brief in Support Thereof [filed on July 25, 2002] ("July 25, 2002 Motion") at 6.
II. STANDARD
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant makes such a showing by informing the court of the basis of his motion and by identifying the portions of the record which reveal there are no genuine material fact issues. See Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). Once the movant makes this showing, the nonmovants must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Id. at 323-24. To carry this burden, the opponents must do more than simply show some metaphysical doubt as to the material facts. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, they must show that the evidence is sufficient to support a resolution of the factual issue in their favor. Anderson, 477 U.S. at 249. All of the evidence must be viewed, however, in a light most favorable to the motion's opponents. Id. at 255 (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)). Summary judgment is properly entered against a party if after adequate time for discovery, he fails to establish the existence of an element essential to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir. 1986).
III. ANALYSIS
A. Motion for Summary Judgment on Tortious Interference Counterclaim
The defendants maintain that Boundy intentionally interfered with the contractual and business relationships between the defendants and their patients. Counterclaim ¶ 5. Boundy moves for summary judgment on this tortious interference claim, on the ground that it is barred by limitations, that Boundy's conduct was neither independently tortious nor unlawful, and that in the alternative the claim falls under the classification of "strategic lawsuits against public participation." July 23, 2002 Motion at 2, 5-9.
The essential elements of a cause of action for tortious interference with contract are: (1) the existence of a contract between plaintiff and a third party subject to interference; (2) the defendant's willful and intentional interference with such a contract; (3) proximate cause; and (4) actual damage. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 926 (Tex. 1993); see also Thrift v. Hubbard, 44 F.3d 348, 356 (5th Cir. 1995); Personal Preftrence Video, Inc. v. Home Box Office, Inc., 986 F.2d 110, 111 (5th Cir. 1993) (citing Victoria Bank and Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex. 1991)); see also Exxon Corporation v. Allsup, 808 S.W.2d 648, 659 (Tex.App.-Corpus Christi 1991, writ denied). Tortious interference is an intentional tort. Browning-Ferris, 865 S.W.2d at 926; Allsup, 808 S.W.2d at 659.
Under Texas law, a claim for tortious interference with contract generally is subject to a two-year statute of limitations. First National Bank of Eagle Pass v. Levine, 721 S.W.2d 287, 289 (Tex. 1986). An exception to that limitation is the discovery rule. The discovery rule is a legal principle which suspends the accrual of a cause of action until the plaintiff knew, or in the exercise of reasonable diligence should have known, of the facts giving rise to a claim. Jackson v. West Telemarketing Corporation Outbound, 245 F.3d 518, 524 (5th Cir.), cert. denied ___ U.S. ___, 122 S.Ct. 394 (2001).
Boundy insists that any cause of action for tortious interference accrued before 1994 when Boundy brought the state court lawsuit. July 23, 2002 Motion at 6. Boundy asserts that the patient and billing records at issue in the 1994 state court lawsuit are the basis of Dolenz's counterclaim. Id. at 6-7. Dolenz, on the other hand, maintains that he did not discover that Boundy was the individual who "badmouthed" Dolenz until "December 5, 2000 when Dolenz was served process." Objections and Response to Boundy's Motion for Summary Judgment Brief at 5.
Justification also is an affirmative defense to a tortious interference claim. Prudential Insurance Company of America v. Financial Review Services, Inc., 29 S.W.3d 74, 80 (Tex. 2000); Texas Beef Cattle Company v. Green, 921 S.W.2d 203, 210 (Tex. 1996); see also Personal Preference Video, 986 F.2d at 112. According to the Texas Supreme Court,
[T]he justification defense can be based on the exercise of either (1) one's own legal rights or (2) a good-faith claim to a colorable legal right, even though that claim ultimately proves to be mistaken. We stated that if a trial court finds as a matter of law that the defendant had a legal right to interfere with a contract, the defendant has conclusively established the justification defense, and the motive is irrelevant.
Prudential Insurance, 29 S.W.3d at 80; see also Texas Beef Cattle, 921 S.W.2d at 211.
Boundy maintains that he "acted in a manner legally protected under the retaliation provisions of the False Claims Act . . . [in that] [h]e was conducting an investigation in furtherance of bringing an action against Defendants for fraud against the United States Government and private insurance companies." July 23, 2002 Motion at 8.
The qui tam provisions of the FCA authorize private persons to bring actions on behalf of the United States against those who have committed fraud on the federal government. 31 U.S.C. § 3730 (b). This court's September 6, 2001 memorandum order concluded that Boundy's FCA Claim was not frivolous. See generally Memorandum Order (September 6, 2001). The court reiterated that conclusion in its memorandum order of May 30, 2002. See May 30, 2002 Memorandum Order at 5.
Even if the court assumes arguendo that the counterclaim is not barred by the statute of limitations, Boundy has established the affirmative defense of justification. Dolenz has not submitted any evidence that Boundy lacked privilege or justification for his acts. Furthermore, Dolenz has not produced evidence that an intentionally tortious or illegal act proximately caused his damage. Accordingly, Boundy's motion for summary judgment on Dolenz's tortious interference counterclaim is granted.
B. Motion for Summary Judgment Under the Doctrine of Collateral Estoppel
Boundy's burden as the movant for summary judgment is different on his claim for relief under the FCA than it is on the defendants' counterclaim. On the latter, since the defendants have the burden of proof at trial, Boundy discharges his burden "by `showing' — that is, pointing out to the district court — . . . [the] absence of evidence to support the nonmoving party's case." Celotex Corporation v. Catrett, 477 U.S. 317, 325 (1986). On the former, since Boundy has the burden of proof at trial, "he must establish beyond peradventure all of the essential elements of the claim . . . to warrant judgment in his favor." Fontenot v. Upjohn Company, 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original).
Boundy argues that he is entitled to summary judgment on his FCA claim under the doctrine of collateral estoppel because a Texas state court judgment precludes relitigation of the issues in the instant case. July 25, 2002 Motion at 6.
Under Texas law, a party may "assert offensive, non-mutual collateral estoppel . . . provided that the party against whom collateral estoppel is now asserted was either a party or in privity with a party in the first suit." DeLeon v. Lloyd's London, Certain Underwriters, 259 F.3d 344, 348 (5th Cir. 2001) (citing Logan v. McDaniel, 21 S.W.3d 683, 687-88 (Tex.App.-Austin 2000, writ denied)).
This court "must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra v. Warren City School District Board of Education, 465 U.S. 75, 81 (1984); see also In re Schwager, 121 F.3d 177, 181 (5th Cir. 1997). The Full Faith and Credit Act states that "[a]cts, records and judicial proceedings or copies thereof . . . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken." 28 U.S.C. § 1738. Accordingly, Texas law governs the preclusive effect that this court will give a Texas state court judgment. Daniels v. Equitable Life Assurance Society of the United States, 35 F.3d 210, 213 (5th Cir. 1994) (citing Matter of Troy Dodson Construction Company, Inc., 993 F.2d 1211, 1214 (5th Cir. 1993); Matter of Brady, Texas, Municipal Gas Corporation, 936 F.2d 212, 217 (5th Cir.), cert. denied, 502 U.S. 1013 (1991)).
As required by the Full Faith and Credit Act, this court will apply the Texas law of collateral estoppel, or issue preclusion. "Under Texas law, collateral estoppel precludes the relitigation of identical issues actually litigated in a prior action" because determination of those issues is binding on the same parties to a later suit. J.M. Muniz, Inc. v. Mercantile Texas Credit Corp., 833 F.2d 541, 544 (5th Cir. 1987) (citing Benson v. Wanda Petroleum Company, 468 S.W.2d 361, 362 (Tex. 1971)); Van Dyke v. Boswell, O'Toole, Davis Pickering, 697 S.W.2d 381, 384 (Tex. 1985). Actual litigation occurs "[w]hen an issue is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined." Van Dyke, 697 S.W.2d at 384 (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 27, comment d (1982)). Additionally, "collateral estoppel . . . may not be invoked unless a final judgment based on adjudication of facts has occurred." State of Texas v. Wellington Resources Corp., 706 F.2d 533, 536-37 (5th Cir. 1983) (emphasis in original) (citations omitted).
To invoke the doctrine of collateral estoppel, "a party must establish that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the prior action, (2) those facts were essential to the judgment in the first case, and (3) the parties were cast as adversaries in the first action." Muniz, 833 F.2d at 544 (citing Bonniwell v. Beech Aircraft Corporation, 663 S.W.2d 816, 818 (Tex. 1984)); see also Mower v. Boyer, 811 S.W.2d 560, 563 (Tex. 1991). A court will give the prior determination preclusive effect in subsequent litigation so long as the party against whom the doctrine of collateral estoppel is asserted was a party or in privity with a party to the earlier litigation. Myrick v. Moody National Bank of Galveston, 590 S.W.2d 766, 769 (Tex. CIV. App. — Houston [14th Dist.] 1979, writ ref'd n.r.e.). The purpose of collateral estoppel is to "relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication." Allen v. McCurry, 449 U.S. 90, 94 (1980) (citing Montana v. United States, 440 U.S. 147, 153-54 (1979)).
Boundy, as the movant for summary judgment, has not shown that the offensive use of collateral estoppel is appropriate in the instant case. From all that appears in the record on this motion, the issues before this court are different from the issues presented to and decided by the state court. Neither the state court judgment, nor the petition on which it was based, concerned a claim that Dolenz intended to defraud the United States. And in the instant case, Avery is not even mentioned in the complaint. Rather, Boundy alleges that the defendants knowingly filed or caused false and fraudulent insurance claims to be filed with the United States. Complaint ¶ 24, 25. Specifically, Boundy maintains that the defendants misrepresented the nature and scope of medical services provided, and in some instances, billed for services which were never performed. See generally id. To establish a violation of the FCA, Boundy as the plaintiff "must demonstrate, by a preponderance of the evidence, that the defendant possessed guilty knowledge or guilty intent to cheat the [United States] government." United States v. Thomas, 709 F.2d 968, 971-72 (5th Cir. 1983); see also United States v. Aerodex, Inc., 469 F.2d 1003, 1007 (5th Cir. 1972). Nothing in the record indicates that these facts were fully and fairly litigated in the state court proceedings.
IV. CONCLUSION
For the reasons stated, Boundy's motion for summary judgment on the defendants' counterclaim is GRANTED, but his motion for summary judgment on collateral estoppel grounds is DENIED.