Stevenson v. Koutzarov

• Decision Date: 23 August 1990
• Docket Number: No. 01-89-00207-CV,01-89-00207-CV
• Citation: 795 S.W.2d 313
• Parties: Donald and Rosie STEVENSON, Appellants, v. Ivan KOUTZAROV, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 313

795 S.W.2d 313

Donald and Rosie STEVENSON, Appellants, v. Ivan KOUTZAROV, Appellee.

No. 01-89-00207-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Aug. 23, 1990.

Jo Ann Storey, Jacqueline Taylor, Norman Riedmuller, Houston, for appellants.

Lynne Little St. Leger, John F. Nichols, Lynn S. Kuriger, Houston, for appellee.

ON MOTION FOR REHEARING

O'CONNOR, Justice.

This suit, which arises out of a divorce action, is a suit for damages by a husband against his wife's friends. We reverse and remand. On motions for rehearing, we grant appellants' motion for rehearing on point of error nine, deny the remainder of appellants' motion, deny appellee's motion, withdraw our earlier opinion, and substitute the following:

Ivan Koutzarov (the husband) filed for divorce against Maria Arnaldina Koutzarov (the wife). In an amended petition, the husband named Donald and Rosie Stevenson as third-party defendants. The divorce was tried to the court. The case against the Stevensons was tried to a jury, which awarded the husband $2,712,500 in actual and exemplary damages. The final judgment in the case incorporated both the jury's verdict against the Stevensons and the court's findings and conclusions in the divorce action.

The Stevensons filed a motion for new trial and for a remittitur. After the trial court granted the motion for new trial, the husband volunteered a remittitur, which the trial court accepted. The trial court then set aside the order for a new trial and reinstated the judgment, less the remittitur. The trial court's final award to the husband against the Stevensons was $965,300 in actual and exemplary damages. The Stevensons appeal from that judgment.

I. Deposition testimony

In their first point of error, the Stevensons claim the trial court erred in admitting the deposition testimony of three witnesses offered by the husband. The Stevensons objected to the depositions because they were not parties when the husband took the depositions. The Stevensons argue they were denied their right to cross-examine the witnesses.

The Stevensons rely on Tex.R.Civ.P. 207(1)(a), which states in part:

At the trial ... a deposition taken in the same proceeding, insofar as admissible under the Texas Rules of Civil Evidence, may be used by any person for any purpose against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof.

(Emphasis added.) The Stevensons cite Heldt Bros. Trucks v. Silva, 464 S.W.2d 931, 937 (Tex.Civ.App.--Corpus Christi 1971, no writ), Elizondo v. Tavarez, 596 S.W.2d 667, 670 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.), and Couch v. Mallory, 638 S.W.2d 179, 181 (Tex.App.--Corpus Christi 1982, writ dism'd), to support their interpretation of rule 207, that the depositions were inadmissible against them.

In Heldt, a corporate defendant complained on appeal that the trial court permitted plaintiff to use depositions that were taken before it was joined as a party. 464 S.W.2d at 937. The Corpus Christi Court of Appeals held that there was no privity between the two defendants. Further, to admit the deposition into evidence would be highly prejudicial to the corporate defendant because it did not have an opportunity to cross-examine the witness. Id. The Heldt court said the corporate defendant should have been afforded an opportunity to cross-examine the witnesses. Id.

In Elizondo, plaintiff sued a doctor in April, and in September, took the deposition of a nurse. 596 S.W.2d at 670. Nine days after taking the deposition, plaintiff added the hospital as a party. At trial, four years later, plaintiff offered the nurse's deposition. Id. at 669. When the hospital objected, the trial court excluded the nurse's deposition against the hospital. On appeal, the Corpus Christi court affirmed and said that plaintiff had the obligation to re-take the deposition after it joined the hospital as a party to the suit. Id. at 671. See also Couch, 638 S.W.2d at 181 (where, without details, the court restated the rule that a deposition taken before a party is joined is inadmissible against that party). ¹

The Texarkana Court of Appeals' application of the rule is consistent with the Corpus Christi court's interpretation. In Safeco Ins. Co. v. Gipson, 619 S.W.2d 275, 278 (Tex.Civ.App.--Texarkana 1981, writ dism'd w.o.j.), after filing suit against Ms. Phillips and her employer, a church, plaintiff deposed Ms. Phillips. About a year later, plaintiff dismissed the church and added Safeco, the insurance carrier for the church, as a defendant. At a venue hearing, plaintiff introduced Ms. Phillips' deposition without objection from Safeco. On appeal, the court rejected Safeco's argument that the deposition was hearsay because the attorney for Safeco was present at Ms. Phillips' depositions, as the attorney for the church, and there was a contractual relationship between the church and its insurance carrier.

Applying the principles of these cases, we note that the husband did not re-depose the witnesses after the Stevensons were joined as parties to the suit; the Stevensons did not have a contractual relationship with either the husband or the wife; and, the Stevensons' attorney was not present when the witnesses were deposed. Thus, the Stevensons did not have an opportunity to cross-examine the deponents.

The husband urges that the depositions were admissible pursuant to Tex.R.Civ.P. 207(1)(c), which provides:

If one becomes a party after the deposition is taken and has an interest similar to that of any party described in a. or b. above, the deposition is admissible against him only if he has had a reasonable opportunity, after becoming a party, to redepose the deponent, and has failed to exercise that opportunity.

(Emphasis added.) Section (1)(c) of rule 207 was added in 1988, after the decisions in the above cited cases. Rule 207 now extends the admissibility of depositions to any party with a similar interest. The rule now charges the late parties to redepose the witness if they have a reasonable opportunity.

The husband claims the second amended petition put the Stevensons on notice as early as January 1986 that his claims against them were similar to his claims against the wife. In that pleading, the husband alleged collusion, conspiracy, and secreting funds. The husband argues that the Stevensons had a reasonable opportunity to redepose the deponents, which they did not exercise. The depositions were filed with the trial court on August 1, 1985. The Stevensons were joined in January 1986, and the case was tried in September 1988.

The husband argues that the Stevensons had constructive notice of the court's file because, with due diligence, the Stevensons could have learned of the depositions on file. We do not need to reach the constructive notice issue because the Stevensons had actual notice that the depositions were on file about three months before trial. On their attorney's billing records, he indicated that his office researched the "use of deposition testimony before the Stevensons were parties." Also, the husband in his deposition on September 16, 1986, told the Stevensons that Singer's deposition had been taken and that Connors was also a person with knowledge of relevant facts.

The Stevensons argue that they had no reason to redepose these witnesses because the witnesses only testified as to "confrontations, harassment, threats and surveillances." The Stevensons assert that this testimony was not relevant to any issue in the case before the additional causes of action were added, 10 days before trial.

Applying rule 207(1)(c) and the cases discussed above, we hold the Stevensons did not have an interest sufficiently similar to the wife to impose a burden on them to depose the witnesses. Thus, the trial court erred in permitting the husband to use the depositions.

We sustain point of error one.

II. The rebutting witness

In point of error two, the Stevensons contend the trial court abused its discretion when it refused to let their witness, Mary Jo Spangler, testify. When the Stevensons offered Spangler as a witness, the trial court ruled she could not testify because she was not listed as a witness in response to discovery requests. When Spangler was offered as a rebuttal witness, the court again refused to allow her to testify. On appeal, the Stevensons contend they offered her testimony to rebut the deposition testimony of the three witnesses.

When a party offers a witness it did not list in its answers to discovery requests, the trial court should automatically exclude the witness. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). It is immaterial that the witness' testimony is offered as rebuttal. Ramos v. Champlin Petroleum Co., 750 S.W.2d 873, 876-77 (Tex.App.--Corpus Christi 1988, writ denied); Walsh v. Mullane, 725 S.W.2d 263, 264-65 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). To escape the automatic sanction, the party who wants to call the unidentified witness must show good cause why the witness was not listed. Gutierrez v. Dallas Indep. School Dist., 729 S.W.2d 691, 694 (Tex.1987). The fact that a party has little or no use at trial for a witness' testimony will not ordinarily excuse his failure to name the witness as a source of relevant facts because the party seeking discovery may have an important use for such testimony. Walsh, 725 S.W.2d at 265.

To prove good cause, the Stevensons argued to the trial court that they did not name Spangler as a witness because they did not know they would need Spangler until the husband amended his pleadings, 10 days before trial. The Stevensons also contend they could not anticipate that the trial court would admit the depositions of the witnesses taken when they were not parties to the suit. For these reasons, the Stevensons claim they did not know they needed Spangler's testimony until trial.

The burden was on the Stevensons to show a good cause for...