Garza v. Serrato

699 S.W.2d 275, 1985 Tex. App. LEXIS 12438

• Court: Court of Appeals of Texas
• Decided: September 30, 1985
• Docket: 04-84-00156-CV
• Status: Published

Opinions

OPINION

CANTU, Justice.

Juanita V. Serrato and Floresvinda Gutierrez, appellees, brought suit against Joe Rolando Garza and Southwestern Bell Telephone Company, appellants, for personal injuries sustained by Serrato and Gutierrez when the automobile they occupied was involved in a collision with a van owned by Southwestern Bell Telephone Company and which was being driven by its employee Garza.

Trial was to the court without benefit of a jury. Judgment was entered against appellants holding both jointly and severally liable in the aggregate amount of $2,791,-089.00. Appeal is from this judgment.

The suit was originally filed on March 7, 1983. The petition alleged that both appel-lees sustained blows to their bodies and shock to their entire nervous system as a result of being rear-ended by a telephone company vehicle driven by Garza.

On July 19, 1983, the trial court, by letter, notified the parties that the instant case, along with some sixty other cases was set for trial on Monday, August 15, 1983, at Eagle Pass.

On Friday, July 29, 1983, appellants’ attorneys were served with notice that a video deposition of Dr. Luis Gonzalez Rios was to be taken at an address in Piedras Negras, Mexico, on August 10, 1983.

On August 5, 1983, appellants filed their Motion To Quash Notice of Deposition and For Protective Order. In their motion, appellants complained of among other things, the scheduled video deposition to be taken in Mexico. Specifically, appellants expressed concern that a deposition to be taken outside the Texas courts’ jurisdiction would deprive them of the protection afforded by law and court orders available under the rules of procedure, such as compulsory process as well as the subpoena powers of the court.

Additionally appellants complained that a deposition taken within five days of the scheduled trial date would not permit them sufficient time to review the testimony of the witness and prepare rebuttal testimony. Appellants sought an order requiring ap-pellees to conduct the deposition at a place within the jurisdiction of the court and at a time to permit the obtaining of meaningful rebuttal evidence.

The trial court denied all the relief sought by appellants by overruling their motion without benefit of a hearing on August 9, 1983.

Counsel for appellants did not attend the video deposition hearing. A written transcription of the hearing was filed with the district clerk in Eagle Pass on Friday, August 12, 1983, at 4:40 p.m.

The record shows that the videotape deposition was taken by appellees’ counsel on August 10, 1983, before Christine Barnes-Austin, a certified shorthand reporter and notary public in and for the State of Texas in the offices of Luis Gonzalez Rios, M.D., Avenue E, Carranza 1017, Piedras Negras, Coahuila, Mexico, between the hours of 10:30 o’clock a.m. and 11:45 o’clock a.m., Mexico time, and 11:30 o’clock a.m. and 12:45 o’clock p.m., U.S. time, pursuant to the notice of July 29, 1983.

The certificate of the court reporter attached to the deposition reduced to writing clearly indicates that Dr. Rios’ testimony was taken following an oath administered by Barnes-Austin as a notary public in and for the State of Texas.

The deposition reduced to writing was filed with the clerk of the court without the signature of the witness subscribed thereto and bearing the notation “signature waived.”

On appeal appellants present numerous contentions including factual and legal sufficiency challenges to the evidence supporting the judgment. Inasmuch as we sustain other points of error requiring a remand for retrial we do not reach all of the contentions.

Appellants’ first two points of error contend:

The trial court erred in overruling defendants’ motion to quash notice of deposition of Dr. Luis Gonzalez Rios, and

The videotape testimony of Dr. Luis Gonzalez Rios, taken in Mexico, is incompetent as a deposition and the trial court erred in admitting it into evidence over defendants’ objections.

Before commencement of trial, appellants renewed the objection to the Rios deposition previously made through their motion to quash deposition and for protective order.

Instead of entertaining the objections, the trial court ordered appellants to file written objections to the deposition after the close of the evidence in the form of a “bill of particulars.”

The videotape testimony of Dr. Rios was presented in evidence over objection and constitutes the only expert medical testimony offered by appellees. Dr. Rios offered his opinion that each appellee had sustained a double-disc herniation of the spine. He further described the injuries, the medical expenses and the disability each appellee could anticipate from the injuries.

Appellants, in accordance with the court’s direction, filed their “bill of particulars” on August 26, 1983.

The “bill of particulars” echoed the same concerns previously evidenced in appellants’ motion to quash deposition.

Before rendition of judgment appellants filed their alternative motion for mistrial and their motion to strike testimony of expert witnesses once again renewing the same objections to the admission of the deposition of Dr. Rios. All motions attacking the deposition of Dr. Rios were overruled by the court.

It is well settled that the taking of testimony by deposition is a departure from the common law rules of evidence and that the right to so take a deposition depends entirely upon statutory provisions therefor. Thus, the rule in Texas is that the right to take the deposition of a witness depends entirely on the statutes, and the provisions of the statutes must be strictly complied with. Ex parte Stiles, 136 Tex. 211, 150 S.W.2d 234 (1941).

Statutory authority for the taking of depositions has undergone a series of changes in the last fifty or so years.

Prior to 1971, the Rules of Civil Procedure and their predecessor statutes provided for the taking of depositions through the issuance of commissions. See TEX.R. CIV.P. 193, 194, 202, 203 (1970) (repealed effective January 1, 1971). See also TEX. REV.CIY.STAT.ANN. arts. 3744 et seq. (Vernon 1926) (repealed, Acts 1939, 46th Leg., p. 201).

Article 3746 (Vernon Supp.1984) enumerates the officers authorized to execute the commissions in the state, outside the state and outside the bounds of the nation. Article 3746 has never been specifically repealed; however, the commission practice was generally repealed effective January 1, 1971, as evident by repeal of Rules 193, 194, 202, 203. See also Civil Procedure Rules Amended, 33 TEX.B.J. 703 (1970).

On August 10, 1983, at the time of Dr. Rios’ deposition, there existed no rule which expressly granted authority to take a foreign deposition either by notice or commission.¹

If it be argued that unrepealed article 3746 remained authority for the taking of Dr. Rios’ deposition, it is noted that no commission was ever issued to do so. We, nonetheless, reject any notion that article 3746 remained authority to continue the commission practice.

Even if a commission had been procured for the taking of Dr. Rios’ deposition, under article 3746 the court reporter utilized would not have had statutory authority to do so.

Article 3746 in pertinent part provides:

The commission shall be addressed to the following officers, either of whom may execute and return same.

3. If the witness is alleged to reside or be without the United States, to any notary public or any minister, commissioner or charge d’affairs of the United States resident in, and accreditd to, the country where the deposition may be taken, or any consul-general, consul, vice-consul, commercial agent, vice-commercial agent, deputy consul or consular agent of the United States resident in such country.

⅜ ⅜ 5⅜ ⅝ ⅝ ⅜

Christine Barnes-Austin, the certified shorthand reporter and notary public in and for the State of Texas, is not a notary public who is a resident in the country where the deposition was taken. Nor is Barnes-Austin any of the other officers listed under article 3746. Thus Barnes-Austin was conferred no statutory authority to take depositions or administer oaths in a foreign jurisdiction. Cf. Kumpe v. Gee, 187 S.W.2d 932, 935 (Tex.Civ.App.—Amarillo 1945, no writ) which construed identical language contained in TEX.REV. CIV.STAT.ANN. art. 26 authorizing the administration of oaths outside the United States. The court, stated:

In our opinion, the requirement of our statute that such officials be resident in the country where the affidavit is taken is mandatory and that unless they are resident in such country they are not authorized to administer oaths or take affidavits for use in our courts.

See also Ward v. Valand, 135 S.W.2d 770 (Tex.Civ.App.—El Paso 1939, writ dism’d, judgment cor.).

Another valid comparison may be made with TEX.REV.CIV.STAT.ANN. art. 6602, subd. 3(c) (Vernon 1969) conferring authority upon notary publics before whom the acknowledgment or proof of an instrument may be made without the physical limits of the United States and its territories.

Barnes-Austin’s authority to act as a notary draws its impetus from TEX.REV. CIV.STAT.ANN. art. 5949 (Vernon Supp. 1985) which provides for appointment, number and terms as well as jurisdiction. Under the statute jurisdiction is well defined as being coextensive with the boundaries of the State, irrespective of the county in which he is appointed. Article 5949, subd. 1 (Vernon Supp.1985).²

The same is true about Barnes-Austin’s authority to take depositions as an official shorthand reporter. TEX.REV.CIV.STAT. ANN. art. 2324a (Vernon 1971) which spelled out the powers of official district court reporters clearly limited the exercise of power to the county within the judicial district to which the reporter is appointed.

Article 2324b (Vernon Supp.1985) effective September 1, 1983, clearly provides that a certified shorthand reporter may administer oaths to witnesses only within the state. See § 16.

All of the above statutes reflect a consistent legislative policy that a Texas shorthand reporter and notary public will have no authority to perform his duties except within the boundaries of the State of Texas.

As further evidence that the policy above noted is to be adhered to, Rule 188, added by order of December 5,1983, and effective April 1, 1984, provides in pertinent part.

Whenever the deposition, written or oral, of any person is to be taken in a sister state or a foreign country, or in any other jurisdiction, foreign or domestic for use in this state, such deposition may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the State of Texas....

The Act then goes on to provide for other methods of accomplishing the same, none of which would have applied to the deposition before us.

Dr. Rios’ deposition was taken by videotape pursuant to the provisions of Rule 215e. The rule provides in pertinent part:

Any party may cause the testimony and other available evidence at a deposition to be recorded by non-stenographic means, which term shall specifically include videotape recordings, without leave of court, and such non-stenographic recording may be presented at trial in lieu of reading from the written record of the deposition, subject to the following rules:

* * * * # ⅜

e. The non-stenographic recording shall not dispense with the requirement of a written record of the deposition unless the court shall so order on motion and notice before the deposition is taken, and such order shall also make such provision concerning the manner of taking, preserving and filing the non-stenographic recording as may be necessary to assure that the recorded testimony will be intelligible, accurate and trustworthy....

(Repealed by order of December 5, 1983, effective April 1, 1984, see now Rule 202).

No order dispensing with the requirement of a written record of the disposition was sought nor obtained. Thus appellees were required to file and did file a written transcript prepared by the court reporter.

The written deposition was, however, not signed by the witness Dr. Rios as required by former Rule 209 which provides that the deposition shall be signed by the witness unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign.

Instead of raising one of the foregoing excuses, the court reporter certified only that the signature was waived by the witness.

Appellants argue that this excuse is insufficient as a matter of law thus rendering the deposition incompetent and inadmissible as evidence. We need not, however, reach this question because we are convinced that the deposition itself was taken without authority of law and thus the manner and form of its taking become immaterial.

Appellees argue in response that the trial court was justified in permitting the deposition to be taken at Dr. Rios’ office because it was merely a few blocks from the Maverick County Courthouse. Whether Dr. Rios’ office was merely a few blocks from the county court does not appear of record. What is clearly evident is that Dr. Rios’ office was separated from the county courthouse by an international border and all the concomitant jurisdictional problems associated therewith.

Appellees further argue that Rule 212 prevents appellants from complaining on appeal about the trial court’s failure to quash the deposition because appellants failed to file objections to the deposition before the trial convened.

Rule 212 provided:

When a deposition shall have been filed in the court at least one entire day before the day on which the case is called for trial, no objection to the form thereof, or to the manner of taking the same, shall be heard, unless such objections are in writing and notice thereof is given to the opposite counsel before the trial commences.

(Repealed by order of Dec. 5, 1983, eff. April 1, 1984, see now Rule 207, subd. 3 eff. April 1, 1984).

The record is clear that the written deposition transcribed from the video deposition was not filed with the clerk of the court until Friday, August 12, 1983, at 4:40 p.m. Trial commenced the following Monday, August 15, 1983, at 3:30 o’clock p.m.

Appellees thus argue that the written deposition of Dr. Rios was on file for more than one day prior to trial.³

Even if we conclude that appellees are correct that the written deposition was on file for an entire day before trial date and that appellants are foreclosed from objecting to the form or manner of taking the deposition by Rule 212, we are not convinced by argument advanced or by the rule that appellants were precluded from timely challenging the authority of the court reporter to take the deposition in the Republic of Mexico.

We observe a distinct difference between “form or manner of taking” and authority to take in the first place.

We find it unnecessary to address the other contentions raised by appellants because a retrial will unlikely result in the same complaints arising once again. We do feel it incumbent to briefly touch on appellants’ complaint of the trial court’s refusal to grant a continuance because discovery will necessarily be repeated and the problem that arose could conceivably repeat itself.

On August 12, 1983, the Friday before trial, appellants filed their first motion for continuance seeking a delay because counsel for appellant Southwestern Bell was unavoidably tied up due to an ongoing nationwide strike of telephone workers. The motion also asked for delay because of inadequate time to prepare rebuttal testimony thought to be needed following Dr. Rios’ deposition taken two days before. Other problems plaguing counsel for appellant were also alleged in the motion. On the day of trial the motion for continuance was overruled.

After trial but before judgment was rendered appellants filed their Alternative Motion for Continuance and to Reopen Evidence in the Case repeating the original grounds for continuance and seeking to postpone judgment in order to obtain evidence in rebuttal to Dr. Rios’ testimony. The motion was overruled on October 12, 1983.

Rule 251 authorizes a continuance upon “sufficient cause supported by affidavit.” TEX.R.CIV.P. 251.

Ordinarily the granting or denial of a motion for continuance is a matter resting within the sound discretion of the trial court. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963). The exercise of sound discretion, however, is always subject to review, and when a first motion substantially complies with the rules, there is no presumption that the court did not abuse its discretion and it must be shown from the record that the exercise of discretion was justified. Piedmont Fire Insurance Co. v. Dunlap, 193 S.W.2d 853, 856 (Tex.Civ.App.—Galveston 1946, writ ref’d n.r.e.).

If the motion is verified and uncontro-verted, the factual allegations must be accepted as true. Piedmont Fire Insurance Co. v. Dunlap, supra, 193 S.W.2d at 856.

In passing upon the question of whether the trial court has abused its discretion, we will examine the entire record. Texas Employers Insurance Association v. Yother, 306 S.W.2d 730 (Tex.Civ.App.—Fort Worth 1957, writ ref’d n.r.e.).

Dr. Rios was the treating physician for both appellees. On the basis of examinations in 1981 and tests performed in June 1983, Dr. Rios diagnosed a neck sprain for appellee Serrato and a lumbosacral sprain for appellee Gutierrez.

On August 1, 1983, just prior to the deposition taken on August 10th, Dr. Rios had myelogram tests performed in Mexico on both patients. These x-rays caused Dr. Rios to change his opinion and at deposition to claim for the first time that plaintiffs each suffered from herniated discs.

The new position assumed by Dr. Rios could not have become apparent to appellants until receipt of a copy of the written deposition on August 13, 1983, two days prior to trial.

Appellants contend that it was grossly unfair to permit the use of this untimely deposition which for the first time revealed the medical claims upon which the large awards of damages are based because it deprived them of the opportunity to respond to the testimony. We agree. Because of the overruling of the motion for continuance, appellants had no effective means to secure a medical witness and to prepare a rebuttal to these new claims over the weekend.

The motion contained what we consider other good sufficient cause alleged; all of which was uncontroverted. The trial court did not have the discretion to reject uncon-troverted facts established by affidavit. Piedmont Fire Insurance Co. v. Dunlap, supra, 193 S.W.2d at 856.

We hold that the trial court erred in overruling appellants’ first motion for continuance and in so doing abused its discretion.

For the foregoing reasons the judgment of the trial court is reversed and the cause is remanded.

1 . On December 5, 1983, the Supreme Court by order added Rule 188 effective April 1, 1984, providing for depositions in foreign jurisdictions. Under the new rule a deposition on notice must be “before a person authorized to administer oaths in the place in which the examination is held_” Rule 188, subd. 1.

2 . Prior to amendment in 1980, a notary’s appointment was limited to the county of his residence and his authority to act was confined to the county in which such appointment was made. Loden v. Carothers, 85 S.W.2d 291 (Tex.Civ.App.—Texarkana 1935, no writ); Daugherty v. McCalmont, 41 S.W.2d 139 (Tex.Civ.App.—Fort Worth 1931, no writ).