Laughlin v. Bergman

• Decision Date: 23 October 1997
• Docket Number: No. 01-96-01552-CV,01-96-01552-CV
• Citation: 962 S.W.2d 64
• Parties: John J. LAUGHLIN III, Appellant, v. Edward BERGMAN and Fouts & Moore, L.L.P., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 64

962 S.W.2d 64

John J. LAUGHLIN III, Appellant, v. Edward BERGMAN and Fouts & Moore, L.L.P., Appellees.

No. 01-96-01552-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Oct. 23, 1997.

Rehearing Overruled Dec. 4, 1998.

William E. Bill King, Kemah, for appellant.

D. Wayne Claywater, Houston, for appellees.

Before NUCHIA, MIRABAL and O'CONNOR, JJ.

OPINION

NUCHIA, Justice.

Laughlin sued Bergman and Fouts & Moore (collectively "Bergman") for legal malpractice, fraud, and violations of the Deceptive Trade Practices Act (DTPA). ¹ The trial court rendered a take-nothing summary judgment for Bergman. We reverse and remand.

BACKGROUND

In January 1994, Laughlin was removed as officer and director of Ameristar Fuels Corp. after serving in those capacities for almost four years. On the heels of that event, Laughlin filed several lawsuits; one of those was this legal malpractice claim against Bergman.

Bergman was retained by Ameristar to represent the company in litigation stemming from various business ventures. When Laughlin and Jim Swieter, a business associate of Laughlin, became individual parties to that litigation, Bergman also represented them in those same matters.

Some time later, Swieter and several other Ameristar directors and investors removed Laughlin from his positions within the company. Laughlin contends Bergman knew of the planned ouster and breached a duty to Laughlin by not disclosing the plans surrounding his forthcoming removal.

On October 21, 1996, following initial discovery by both parties and an unsuccessful attempt to mediate the dispute, Bergman moved for summary judgment on all of Laughlin's claims. Because the parties had tentatively agreed to depose Bergman sometime in December, Laughlin moved for a continuance to allow him to conduct additional discovery before the trial court ruled on Bergman's motion for summary judgment. In support of his motion for continuance, Laughlin's counsel submitted a sworn affidavit stating that he had made numerous attempts to schedule Bergman's deposition to no avail. The affidavit further states that "[i]n direct contravention to the Defendants' representation to the Court, neither of Defendants' attorneys, nor anyone connected with Weinstein & Clawater, P.C., stated to me, prior to November 6, 1996, that the documents requested by Plaintiff in Request for Production of Documents to the Defendant, Fouts & Moore, were available for inspection." Neither Bergman nor Fouts & Moore provided sworn testimony to the contrary.

At this time, Laughlin also noticed Edward Bergman's deposition for November 20, 1996, in an apparent attempt to provide evidence on the record. Bergman then moved to quash the deposition due to the parties' prior agreement to depose Edward Bergman in December. This motion to quash concedes that "[t]he December dates were agreed upon after discussions regarding the availability of counsel and of Mr. Bergman (a trial lawyer and mediator)."

The trial court denied Laughlin's continuance, quashed the deposition of Edward Bergman, and entered a take-nothing summary judgment in favor of Bergman.

DISCUSSION

In his first point of error, Laughlin contends the trial court erred in denying his motion for continuance so that he could gather facts to support his opposition to Bergman's motion for summary judgment. We agree.

Under TEX.R.CIV.P. 166a(g), when it appears from the affidavits of a party opposing a motion for summary judgment that he cannot present by affidavit facts sufficient to justify his opposition, the trial court may order a continuance to permit discovery to be had. TEX.R.CIV.P. 166a(g); Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex.1996) ("When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance."); Levinthal v. Kelsey-Seybold Clinic, P.A., 902 S.W.2d 508, 510 (Tex.App.--Houston [1st Dist.] 1994, no writ).

It was within the court's discretion to grant a continuance until the requested discovery was completed. Levinthal, 902 S.W.2d at 510. We will not disturb the trial court's denial of a motion for continuance except for a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986); Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex.App.--Houston [1st Dist.] 1989, writ denied).

In deciding whether the trial court abused its discretion in denying a ruling on a rule 166a(g) motion for continuance, the following illustrative factors are useful: the length of time the case had been on file; the materiality of the discovery sought; and whether the party seeking the continuance had exercised due diligence in attempting to obtain the discovery sought. See, e.g., J.E.M. v. Fidelity & Cas. Co., 928 S.W.2d 668, 676 (Tex.App.--Houston [1st Dist.] 1996, no writ). In the instant case, all three factors favor Laughlin.

Although Bergman points out that this case had been on file for eleven months, he also concedes that the parties had previously agreed to take Edward Bergman's deposition in December, some two months after the filing of his ...