Garza v. Serrato

• Court: Texas Court of Appeals
• Writing for the Court: Before CADENA; CANTU; TIJERINA
• Citation: Garza v. Serrato, 699 S.W.2d 275 (Tex. App. 1985)
• Decision Date: 30 September 1985
• Docket Number: No. 04-84-00156-CV,04-84-00156-CV
• Parties: Joe Rolando GARZA and Southwestern Bell Telephone Company, Appellants, v. Juanita V. SERRATO and Floresvinda Gutierrez, Appellees.

Page 275

699 S.W.2d 275

Joe Rolando GARZA and Southwestern Bell Telephone Company, Appellants, v. Juanita V. SERRATO and Floresvinda Gutierrez, Appellees.

No. 04-84-00156-CV.

Court of Appeals of Texas San Antonio.

Sept. 30, 1985.

Rehearing Denied Oct. 24, 1985.

Hubert W. Green, San Antonio, Jeremiah I. Rhodes, Eagle Pass, for appellants.

W. Burl Brock, Catherine M. Stone, Watkins, Mireles, Brock & Barrientos, San Antonio, for appellees.

Before CADENA, C.J., and CANTU and TIJERINA, JJ.

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 appellees 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 appellees 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.CIV.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.

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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.

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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...