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Click here for the full text of this decision FACTS:Dr. Jairo Puentes owned Saratoga Medical Center. He had been a partner in two other earlier partnerships, and some of the partners to those entities were also partners in Radiology Associates. The members of the partnerships had percentage interests in an MRI machine, and RA provided MRI-reading services for the partnerships. Later, a third partnership for Puentes had an agreement in 1997 with RA to conduct and interpret radiological procedures at Saratoga’s facility. The agreement gave RA the exclusive right to read Saratoga’s MRI films, but did not contain a noncompete clause. In 1998, Dr. Tamara Haygood of RA got a printout from a Saratoga employee that included the number of MRI procedures performed by Saratoga in November and December of the previous years, as well as the names of the referring physicians. In April 1998, RA bought its own MRI machine and began performing its own MRI procedures. The contract between RA and Saratoga continued until the end of 1998, with RA continuing its provisions of radiological services. Saratoga sued RA and its individual partners for breach of fiduciary duty, conversion of a trade secret and antitrust violations. RA filed a counterclaim that Saratoga’s antitrust claims were groundless and brought in bad faith, for which RA requested attorneys’ fees. Saratoga abandoned its antitrust claims. When asked if there was a fiduciary relationship between Puentes and RA, the jury answered “no.” The jury also answered “no” to the question of whether the list of referring doctors that Haygood got from the Saratoga employee was a trade secret. On appeal, Saratoga challenges the factual and legal sufficiency of the jury’s findings. On cross-appeal, RA asserts that the trial court erred in finding that Saratoga’s antitrust claims were not groundless and brought in bad faith. HOLDING:Affirmed. The court finds the evidence legally and factually sufficient to support the jury’s finding that there was not a fiduciary relationship between Puentes and RA. Puentes’ participation in two limited partnerships with a few of RA’s partners is not evidence of a confidential relationship between Saratoga and RA. The court says it is unnecessary to address whether the jury’s answer to the trade-secret question was proper, as Saratoga waived the error. Turning to RA’s issue on cross-appeal, the court first considers the trial court’s refusal to find that Saratoga’s antitrust claims were groundless and brought in bad faith, which would make RA eligible for attorneys’ fees. The court finds a dearth of case law on the relevant provisions of the Antitrust Act. Consequently, the court looks to a similar provision in the Deceptive Trade Practices Act and in Texas Rule of Civil Procedure 13. The court first concludes that in order to prevail on its claim, RA would have had to prove that the claim was both groundless and brought in bad faith, not just one or the other. Furthermore, as noted in the case law interpreting the DTPA, for a suit to be brought in bad faith, it must have been brought for the purposes of harassment. The court points out that the only evidence RA presented on this issue was an attorney’s affidavit on his expenses and costs. It states Saratoga defied a trial-court order that it must plead the distinction between horizontal and vertical antitrust violations, and that this failure plainly showed the pleadings were groundless and brought in bad faith or groundless and brought for the purpose of harassment. The affidavit also says Saratoga knew the effect if its allegations: that they were strategic, and that that they would cause RA to expend great resources. There was no hearing on the issue, and RA did not object to this failure. Without hearing evidence on the circumstances surrounding the filing of the pleading and the credibility and motives of the affidavit’s signer, the trial court has no evidence to determine whether the party or its attorneys filed the pleading in bad faith or to harass. RA’s appeal can be properly overruled on this basis alone, the court finds. Even if the lack of a hearing were not fatal, the allegations of the affidavit do not establish that Saratoga acted in bad faith or for the sole purpose of harassment. The affidavit does not discuss the circumstances surrounding the action’s filing or the credibility and motives of the signer, except in an indirect, brief and conclusory manner, the court finds. The court rules that the failure of Saratoga to replead (the horizontal antitrust violation), even following a court order to do so, does not prove that it brought its suit for malicious reasons; it may be poor judgment, but it is not tantamount to bad faith. Further, no basis is given for concluding that Saratoga knew the claims would cause RA to expend great resources in defending against them. “In sum, Radiology Associates failed to establish that Saratoga brought its claims in bad faith or for the sole purpose of harassment. Thus, even if Radiology Associates had put on sufficient evidence to prove the claims were groundless, it was not entitled to attorney’s fees and expenses under the Antitrust Act. We therefore hold that the trial court did not abuse its discretion in denying Radiology Associates’ claim for attorney’s fees and expenses.” OPINION:Garza, J.; Hinojosa, Yanez and Garza, JJ. CONCURRENCE AND DISSENT: Hinojosa, J. “I concur with that portion of the majority’s opinion overruling Saratoga’s four issues on appeal. However, I respectfully dissent from that portion of the majority’s opinion holding that Radiology Associates is not entitled to attorney’s fees and expenses under the Texas Free Enterprise and Antitrust Act of 1983. . . . I conclude that Radiology Associates produced sufficient evidence to establish that Saratoga’s antitrust claims were both (1) groundless and (2) brought in bad faith or for the sole purpose of harassment.” Because Saratoga did not present any evidence to contradict RA’s attorney’s affidavit, the affidavit provided clear, direct and positive evidence of Saratoga’s bad faith.

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