Levinthal v. Kelsey-Seybold Clinic, P.A.

• Decision Date: 10 November 1994
• Docket Number: No. 01-94-00410-CV,KELSEY-SEYBOLD,01-94-00410-CV
• Citation: 902 S.W.2d 508
• Parties: Robert LEVINTHAL, M.D., Appellant, v.CLINIC, P.A., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 508

902 S.W.2d 508

Robert LEVINTHAL, M.D., Appellant, v. KELSEY-SEYBOLD CLINIC, P.A., Appellee.

No. 01-94-00410-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Nov. 10, 1994.

C. Michael Clark, John T. Johnson, Houston, for appellant.

Jeffrey B. McClure, Solace H. Kirkland, Houston, for appellee.

Before OLIVER-PARROTT, C.J., and MIRABAL and O'CONNOR, JJ.

OPINION

MIRABAL, Justice.

This is an appeal from a summary judgment. Dr. Robert Levinthal sued Kelsey-Seybold Clinic, P.A. (the Clinic) alleging anti-trust violations, as well as violations of the Texas Insurance Code, because the Clinic refused to refer patients to him. The trial court granted summary judgment in favor of the Clinic. We reverse.

Dr. Levinthal filed his original petition and discovery requests on December 1, 1993. The Clinic was served with the petition and discovery requests on January 11, 1994. Because the discovery requests were served with the petition, the Clinic had 50 days to respond to the discovery. TEX.R.CIV.P. 167(2) & 168(4). Therefore, the Clinic was required to respond to the discovery by March 2, 1994. The Clinic answered Levinthal's petition and moved for summary judgment on January 31, 1994. The summary judgment was set for hearing on February 21, 1994, before the Clinic's response to discovery was due. The trial court entered a written summary judgment in favor of the Clinic on March 10, 1994.

In point of error nine, Dr. Levinthal contends the trial court erred by ruling on the Clinic's motion for summary judgment before he had the opportunity to conduct any discovery.

Dr. Levinthal filed a response to the Clinic's motion for summary judgment, in which he objected to the hearing on the motion for summary judgment because it was to occur before he obtained the Clinic's discovery responses. Dr. Levinthal argued that he needed the discovery responses in order to adequately respond to the affidavit filed in support of the Clinic's motion for summary judgment. The response was supported by the affidavit of Dr. Levinthal's counsel, John Johnson, in which he stated that he was unable to adequately oppose the motion for summary judgment due to the lack of discovery. Mr. Johnson stated that in order to show an antitrust violation by the Clinic, he would have to show that the Clinic entered into a contract, combination, or conspiracy in restraint of trade. He further stated that discovery into the nature of the relationship between Sanus/New York Life Health Plan and the Clinic was necessary to prove such a conspiracy.

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. Therefore, it was within the Court's discretion to grant a continuance until the necessary discovery was completed. 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.] 1990, writ denied).

We consider the following nonexclusive list of factors in deciding whether the trial court abused its discretion: (1) the length of time the case has been on file; see Verkin, 784 S.W.2d at 96) (because, among other things, case had been on file less than three months, motion for continuance should have been granted); (2) the materiality of the discovery sought; see Eckman v. Centennial Sav. Bank, 757 S.W.2d 392, 395 (Tex.App.--Dallas 1988, writ denied); and (3) whether due diligence was exercised in obtaining the discovery; see Cedillo v. Jefferson, 802 S.W.2d 866, 868 (Tex.App.--Houston [1st Dist.] 1991, writ denied) (motion for continuance denied because appellants made no showing why they had not, and could not, obtain the necessary discovery before the summary judgment hearing).

(1) Length of time case on file

Dr. Levinthal filed his lawsuit on December 1, 1993. The trial court granted summary judgment for the Clinic on March 10, 1994. The case had been on file for only three months at the time summary judgment was granted. In Verkin, 784 S.W.2d at 94-95, this Court held that the trial court abused its discretion by denying the defendant's motion for continuance, and granting plaintiff's motion for summary judgment, because the case had been on file for approximately six months. Id.

We recognize that in this case the plaintiff, not the defendant, moved for a continuance. A trial court can presume that a plaintiff has investigated his own case prior to filing. Verkin, 784 S.W.2d at 95-96. However, this presumption does not deny a plaintiff the right to engage in necessary discovery before summary judgment is granted.

(2) Materiality of the discovery sought

The Texas Free Enterprise and Antitrust Act provides that "[e]very contract, combination, or conspiracy in restraint of trade is unlawful." TEX.BUS. & COM.CODE ANN. § 15.05(a) (Vernon 1987). In order to establish a violation of section 15.05, Dr. Levinthal was required to prove a concerted action by two or more persons. Red Wing Shoe Co., Inc. v. Shearer's Inc., 769 S.W.2d 339, 344 (Tex.App.--Houston [1st Dist.] 1989, no writ). To show a concerted action by two or more persons to illegally restrain trade, a plaintiff faces the threshold requirement of identifying a co-conspirator. Id. at 345.

In his affidavit, Dr. Levinthal's counsel stated that in order to show a contract, combination, or conspiracy in restraint of trade he needed to conduct extensive discovery into the nature of the relationship between the Clinic and Sanus/New York Life Health Care (Sanus). Apparently counsel believed that discovery would prove that Sanus was the requisite co-conspirator in the Clinic's alleged attempt to illegally restrain trade.

A representative sample of the discovery requests propounded by Dr. Levinthal on the Clinic include the following:

Please identify all policies, procedures, guidelines and rules relating to the referral of patients covered under the Sanus/New York Health Care Plan to physicians who are not consulting specialist members of Kelsey-Seybold Clinic, P.A.

Please identify every individual and provide their current address and telephone numbers who participated in the creation of Kelsey-Seybold Clinic, P.A.'s policies and procedures regarding the referral of patients covered under the Sanus/New York Health Care Plan to physicians who are not consulting specialist members of Kelsey Seybold Clinic, P.A.

Please produce:

All...