Elizondo v. Tavarez, 1448

• Decision Date: 13 March 1980
• Docket Number: No. 1448,1448
• Citation: Elizondo v. Tavarez, 596 S.W.2d 667 (Tex. Ct. App. 1980)
• Parties: Armando ELIZONDO, Sr., Appellant, v. Vicente TAVAREZ, Jr. et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 667

596 S.W.2d 667

Armando ELIZONDO, Sr., Appellant, v. Vicente TAVAREZ, Jr. et al., Appellees.

No. 1448.

Court of Civil Appeals of Texas, Corpus Christi.

March 13, 1980.

Rehearing Denied April 10, 1980.

John Gano, Houston, for appellant.

Gary Gurwitz, Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, John E. Lewis, Jones & Lewis, McAllen, for appellees.

OPINION

BISSETT, Justice.

This is an appeal from the granting of an instructed verdict and the rendition of a take nothing judgment in a medical malpractice case. Armando Elizondo, Sr., (Elizondo) was plaintiff and Vicente Tavarez (the doctor), and the City of McAllen, owner and operator of McAllen General Hospital (the hospital) were defendants in the trial court. The doctor and the hospital each filed a motion for an instructed verdict after Elizondo rested, but before either of them put on any evidence. Both motions were granted, and a take nothing judgment was rendered. Elizondo has appealed.

On May 6, 1973, Elizondo was admitted to the hospital for abdominal surgery by the doctor to remove his gallbladder. Surgery was performed the next day, and Elizondo remained in the hospital to recover from the operation. On May 8, 1973, Elizondo began to suffer from abdominal distension caused by the collection of gas. This distension caused pressure on the freshly sutured surgical wound. The next day his condition worsened, and the doctor ordered the insertion of a Levin ¹ tube to relieve the distension.

The order for insertion of the tube was left by the doctor at the nursing station on the surgical floor at about 9:00 p. m. on May 9, 1973. Approximately forty-five minutes later, Nurse Maria Aparicio, a graduate but unregistered nurse working the 3-11 o'clock shift on the surgical floor, asked her supervising nurse for permission to insert the tube into Elizondo's abdominal area. Permission was granted, and Nurse Aparicio began the implementation of the doctor's order. Initially, she was joined by her supervising nurse in Elizondo's room. The supervising nurse, however, left the room while Nurse Aparicio attempted to insert the tube. During this attempt, Elizondo began to gag. Eventually, he eviscerated; the abdominal sutures ripped apart, which caused his intestines to become exposed and dislodged. Shortly thereafter, the doctor arrived, and an emergency operation was performed to replace Elizondo's intestines and close the surgical incision.

Elizondo seeks damages for personal injuries sustained because of the alleged negligence of the doctor and of Nurse Aparicio, a general employee of the hospital, relating to certain acts and omissions concerning the attempt to insert the tube through his nostril down his throat into his abdominal cavity. He does not sue for damages resulting from the gallbladder operation.

Elizondo first contends that it was an abuse of discretion for the trial court to deny his motion for continuance based upon the unavailability of a material witness, Nurse Aparicio. Discussion of this point requires a brief review of the procedural history.

On April 1, 1974, Elizondo filed suit against the doctor for negligence relating to insertion of the tube. On September 14, 1974, he deposed Nurse Aparicio. At the time of her deposition, Nurse Aparicio resided in Hidalgo County, the county of suit. She indicated in her deposition that she would be available to testify at the trial of plaintiff's lawsuit. Then, on September 23, 1974, Elizondo brought the hospital into the suit as defendant.

The first trial setting was February 2, 1976. Elizondo's counsel said that he checked periodically upon Nurse Aparicio's whereabouts, and never had reason to believe she was living anywhere other than Hidalgo County, or that she would be unavailable for trial. Nevertheless, it is undisputed that on August 31, 1976, a subpoena for Nurse Aparicio was returned unserved because she could not be located in Hidalgo County. The trial date was then moved to sometime in December of 1977, pursuant to a motion for continuance filed by one of the defendants. Sometime in late 1977 or early 1978, Nurse Aparicio moved out of Hidalgo County. A third setting for a trial for February 24, 1978, was postponed. Finally, on March 30, 1978, at a docket control conference, which was attended by counsel for Elizondo, the case was set for a jury trial on September 5, 1978, and the deadline for discovery was fixed at August 18, 1978.

It was not until late in August, 1978, however, that Elizondo's counsel attempted to contact Nurse Aparicio. On September 1, 1978, Nurse Aparicio was successfully contacted by Elizondo's attorney. She refused to voluntarily appear at the trial as a witness. The motion for continuance was filed at 8:12 a. m. on September 5, 1978.

Counsel for Elizondo alleged and testified that the testimony of Nurse Aparicio "relative to what she did and how she performed on such occasion is material and is absolutely crucial to a trial of plaintiff's case" since "this testimony cannot be elicited from any other source." He further alleged that because the hospital was not a party to the suit when Nurse Aparicio's deposition was taken, it could not be used against the hospital at the trial, unless the hospital agreed thereto, which it "has not so agreed." He also alleged and testified that the nurse refused to appear "to testify in the trial scheduled in this case during the week of September 5, 1978"; that she "now resides beyond the subpoena range of this Court"; and that justice requires that the case be continued in order that he may take her deposition "which cannot now be done under the Rules in time for this trial setting." He further alleged and testified that Nurse Aparicio, when her deposition was taken in 1974, "represented that if she was needed to come to court at the time of trial, she would do so, and plaintiff relied on that representation." The motion for continuance was denied and the cause proceeded to trial before a jury.

The law is well settled that the trial court's denial of a motion for a continuance is within the sound discretion of the trial court and it will be presumed, absent a showing of an abuse of discretion, that the court properly exercised its discretion. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.Sup.1963); Southwestern Bell Telephone Co. v. Griffith, 575 S.W.2d 92 (Tex.Civ.App. Corpus Christi 1978, writ ref'd n. r. e.). It is not an abuse of discretion to deny a first motion for continuance based upon the absence of a material witness where there is no showing of proper diligence to procure the testimony of the witness. Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856 (1952).

In the case at bar, plaintiff's counsel knew about the September 5, 1978, trial setting for six months prior to the setting. Nevertheless, he made no attempt to contact Nurse Aparicio about testifying at trial until late August, 1978, apparently about two weeks before the trial setting. After reviewing the facts of this case, we cannot say that plaintiff was entitled to rely upon Nurse Aparicio's representation, if any, in her deposition that she would be available to testify. Where a party elects to employ other means than those provided by law to assure that a witness appears to testify at trial, it will be at his peril. Hensley v. Lytle, 5 Tex. 497 (1851). Elizondo did not show proper diligence in his attempt to locate Nurse Aparicio in time to take her deposition in the event she refused to testify in person at the trial. We hold, after reviewing all of the facts, circumstances and opportunities shown by the record, that the trial court did not abuse its discretion in denying the motion.

We now address the alleged error of the trial court in ruling that Nurse Aparicio's deposition was not admissible at the trial against the hospital. At the trial, parts of the deposition were admitted along with an instruction that the jury could not consider any of such evidence with respect to the action against the hospital.

The general rule is that depositions are inadmissible in evidence against one not a party to the suit at the time the deposition was taken. Heldt Bros. Trucks v. Silva, 464 S.W.2d 931 (Tex.Civ.App. Corpus Christi 1971, no writ); Allen v. Payne, 334 S.W.2d 607 (Tex.Civ.App. Texarkana 1960, writ ref'd n. r. e.); Dalsheimer v. Morris, 8 Tex.Civ.App. 268, 28 S.W. 240 (Tex.Civ.App.1894, no writ); 20 Tex.Jur.2d, Depositions, § 72 (1960). Elizondo recognizes this general rule, but he contends that the hospital waived its right against admission of the deposition against it.

Elizondo first argues that the hospital, up to the time of trial, never objected to the admission of the deposition in evidence, or filed a motion to suppress or quash it, as provided in Rule 212, T.R.C.P. That rule, however, only governs objections concerning the form and manner in which the deposition was taken. That is not the case here. Rule 212 is inapplicable to the case at bar.

Elizondo next argues that the hospital waived its right against admission of the deposition when, at the hearing on his motion for continuance, it refused to either agree or disagree as to Elizondo's proposed use of the deposition at the trial. At such hearing, the following exchange took place:

MR. GANO (Attorney for Elizondo):

". . . I would ask the attorney for the City of McAllen if they agree to the use of Maria Aparicio Lucio's deposition in this case.

THE COURT: You wouldn't ask him to agree to it if he hadn't had the opportunity to cross examine the witness?

MR. GANO: I am asking him if he would agree to it. If he would, it would no longer be an essential part of this motion.

MR. LEWIS (Attorney for the hospital): I am not making any agreements or refusing to agree at this time. It hasn't been offered."

If Elizondo's argument is that the hospital in some manner agreed to the use of the deposition, such argument is refuted by what was actually said by the attorney...