In re Millwork

631 S.W.3d 706

IN RE Texan MILLWORK, Relator

No. 20-0662

Supreme Court of Texas.

OPINION DELIVERED: October 1, 2021

John P. Abbey, Matthew Sean Parish, Houston, for Relator.

Ryan S. Pigg, Cornelia Brandfield-Harvey, Houston, Anthony G. Buzbee, Bernardino Agosto III, for Real Parties in Interest Adeshara, Sejal, Adeshara, Kavan.

PER CURIAM

A subpoena is generally required to compel a witness's appearance at an oral deposition. TEX. R. CIV. P. 199.3. But when "the witness is a party or is retained by, employed by, or otherwise subject to the control of a party," service of a notice of oral deposition on the party's attorney "has the same effect as a subpoena served on the witness." Id. Here, the parties hotly dispute whether the witness was "employed by[ ] or subject to the [relator's] control" when a fatal industrial accident occurred. The record, however, bears no evidence of employment or control contemporaneous with service of the deposition notice or thereafter and includes uncontradicted evidence to the contrary. The trial court therefore abused its discretion in compelling the relator to produce the witness for an oral deposition. Because the relator lacks an adequate remedy by appeal, we conditionally grant the relator's mandamus petition seeking relief from the trial court's order.

I

In December 2016, Jay Adashera, an employee of a wholesale granite purveyor, died when two 400-pound granite slabs fell off a contractor's truck at his workplace. Adashera's survivors sued the granite company and the truck owner, Lazaro Cabrera, for negligence, gross negligence, and wrongful death. After obtaining a default judgment against Cabrera, the survivors added claims against Texan Millwork, Inc., a cabinet-maker that had purchased the granite slabs and had hired Cabrera to fabricate the slabs into countertops for a residential construction project.

In November 2018, shortly after being served with the lawsuit, Texan Millwork requested and secured Cabrera's sworn statement. One month later, Texan Millwork disclosed the statement in discovery and then attached it as evidence to support traditional and no-evidence motions for summary judgment. Those motions asserted that, as a matter of law, Cabrera was an independent contractor who was not subject to Texan Millwork's actual or contractual control at the time of the accident.

To secure Cabrera's testimony, the survivors attempted to serve him with a notice of oral deposition at the address he had provided in his sworn statement. Eight attempts at service between March 29, 2019, and April 8, 2019, were unsuccessful, as were repeated phone calls to the telephone number Cabrera had provided in his statement.

On March 10, 2020, nearly a year after attempting to secure Cabrera's deposition, the survivors’ attorney sent Texan Millwork's attorney a letter requesting to "depose [Texan Millwork's] employee," referring to Cabrera. The letter further stated: "If this individual is no longer within your control, please provide us with the last known contact information (including phone number and address)." Texan Millwork's attorney responded: "Mr. Cabrera is not and never has been an employee of Texan Millwork. His last known address and phone number have been provided in our discovery responses/supplemental responses."

Immediately thereafter, the survivors filed a motion to compel Texan Millwork to produce "its agent and/or employee" pursuant to Texas Rule of Civil Procedure 199.3. The survivors asserted that Texan Millwork "maintains control over Mr. Cabrera" such that service of a notice of deposition on the company's attorney is sufficient to compel Cabrera's appearance under the discovery rules without serving him with a subpoena. To show control, the survivors cited evidence to the effect that Cabrera was "working for" Texan Millwork on the day of the accident; Cabrera was the only granite fabricator doing business with Texan Millwork at the time of the accident; a Texan Millwork employee had paid for the granite slabs and was present at the accident site on the day Adashera died; Cabrera had worked on several other projects for the company after the accident; and Cabrera had, on request, given a sworn statement to Texan Millwork's counsel early in the litigation while subsequently evading the survivors’ multiple attempts to communicate with him.

In response, Texan Millwork asserted that it (1) had never retained, employed, or controlled Cabrera, who was, at all times, an independent contractor; (2) had not communicated with Cabrera for any reason in nearly a year; and (3) could not be compelled to produce Cabrera for a deposition because it lacked a past or present right of control over him. In addition to adducing controverting evidence concerning Cabrera's business relationship with the cabinet-maker at the time of the December 2016 accident,¹ Texan Millwork provided an affidavit from its president, Joe Villareal, regarding Cabrera's present relationship with the company. Villareal averred: "I have not retained Lazaro Cabrera to perform any work for Texan Millwork since approximately May/June of 2019. I have not communicated with Lazaro Cabrera or had any contact with him since May/June 2019. I do not know where Lazaro Cabrera currently resides." Also attached was an affidavit from Texan Millwork's counsel, in which he testified: "I have not communicated with Lazaro Cabrera or had any contact with Lazaro Cabrera since I took his sworn statement on November 19, 2018." The record bears no evidence controverting this testimony.

Without explanation, the trial court granted the survivors’ motion to compel and ordered Texan Millwork to produce Cabrera for a deposition no later than April 22, 2020.

The court of appeals denied Texan Millwork's petition for mandamus relief, concluding that (1) the trial court "impliedly found Cabrera is either [Texan Millwork]’s employee or is otherwise subject to [its] control"; (2) the record "does not demonstrate there is no evidence to support the trial court's implied finding"; and (3) "[w]hile there is evidence to the contrary, it is well-settled that appellate courts do not deal with disputed areas of fact in original proceedings." 2020 WL 4689294, at *1 (Tex. App.—Houston [14th Dist.] Aug. 13, 2020). In holding that a fact issue exists with respect to Cabrera's employment status or Texan Millwork's right of control, the court relied on evidence of Cabrera's activities on the day of the accident and evidence of his alleged employment relationship with Texan Millwork at that time, which was more than three years before production was sought and compelled.

On petition for writ of mandamus to this Court, Texan Millwork argues the order compelling it to produce a co-defendant for an oral deposition is not authorized by the discovery rules because (1) Rule 199.3 permits service of a notice of deposition on a party's counsel to substitute for subpoenaing the witness only when that party presently employs, retains, or has a right to control the witness; (2) regardless of the nature of any past relationship—which remains disputed—the record establishes that Texan Millwork neither employed nor controlled Cabrera at the time his deposition was noticed or thereafter; (3) even if past employment or control could suffice, Texan Millwork never had the type of relationship with Cabrera that Rule 199.3 contemplates; and (4) Rule 199.3 ’s substitute notice procedure does not allow courts to compel a party to produce a codefendant for an oral deposition.² Because mandamus relief is warranted based on the first two arguments, we do not reach the others.

II

A writ of mandamus will issue only if the trial court clearly abused its discretion and no adequate appellate remedy exists. In re Gonzales , 619 S.W.3d 259, 261 (Tex. 2021). A trial court abuses its discretion when it misinterprets or misapplies the law. Id. A trial court also abuses its discretion when a decision is contrary to the only permissible view of the evidence. In re Barber , 982 S.W.2d 364, 366 (Tex. 1998). Here, the trial court necessarily concluded either that (1) Rule 199.3 waives the subpoena requirement even when employment or control is lacking at the time the deposition notice is served and production is required; or that (2) Texan Millwork employed or controlled Cabrera at those times. Either conclusion was a clear abuse of discretion.

Properly and logically construed, Rule 199.3 does not permit the trial court to compel a party to produce a witness when the party does not retain, employ, or control the witness at the time production is requested or required. Rule 199.3 provides:

A party may compel the witness to attend the oral deposition by serving the witness with a subpoena under Rule 176. If the witness is a party or is retained by, employed by, or otherwise subject to the control of a party , however, service of the notice of oral deposition upon the party's attorney has the same effect as a subpoena served on the witness.

TEX. R. CIV. P. 199.3 (emphasis added).

In construing procedural rules, we "apply[ ] the same rules of construction that govern the interpretation of statutes." In re Christus Spohn Hosp. Kleberg , 222 S.W.3d 434, 437 (Tex. 2007). "When a rule of procedure is clear and unambiguous, we construe the rule's language according to its plain or literal meaning," id. , applying the rules of grammar and considering the context, Crosstex Energy Servs., L.P. v. Pro Plus, Inc. , 430 S.W.3d 384, 390 (Tex. 2014). "[U]se of a verb tense is significant[.]" United States v. Wilson , 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Specifically, "[u]se of the present tense strongly suggests [the object of reference] lies in the present or the future, not in the past." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc. , 484 U.S. 49, 59, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) ; see Reynolds v. State , 423 S.W.3d 377, 382 (Tex. Crim. App. 2014) ("The use of the present...