Sears, Roebuck & Company v. Hollingsworth , 156 Tex. 176 ( 1956 )

Mr. Justice Calvert

delivered the opinion of the Court.

Respondent sued petitioner for damages resulting from allegedly fraudulent representations made to her by petitioner’s employees by which she was induced to buy and use certain plastic bathroom tile.

After the suit was filed, respondent, on January 27, 1955, voluntarily submitted herself to the jurisdiction of a Notary Public for the purpose of giving an oral deposition. In the course of giving her deposition she testified that she had replaced the plastic tile purchased from petitioner with clay tile, purchased from another, for which she paid approximately $1,200.00 by personal check. She testified she had the cancelled check in her possession but she declined to produce it.

Counsel for petitioner requested the Notary Public to issue a subpoena duces tecum directing respondent to produce the check for examination, and when he had otherwise completed his examination of respondent he requested the Notary to recess the hearing until the subpoena was served. The Notary thereupon recessed the hearing to 1:30 p.m., January 31, 1955, and advised respondent she was excused until that time. Following the recess of the taking of the deposition, counsel for petitioner, on the same day, applied to the Judge of the court in which the case was pending for an order directing the issuance of a subpoena duces tecum requiring respondent to produce the check. Such an order was entered without notice to respondent.

The order directed the clerk to “issue a subpoena duces tecum addressed to the said Lura Barbara Hollingsworth, commanding her to bring with her and produce in the 28th District Court room in Corpus Christi, Nueces County, Texas, at the Courthouse, at 1:30 o’clock p.m. on Monday, January 31, 1955, the said cancelled check, and there, before Paul Clendening, Notary Public who is taking said deposition and who recessed the taking thereof to the time and place above mentioned, exhibit said can-celled check to counsel for the defendant and submit herself to Cross-examination by said counsel for defendant with regard thereto.” A subpoena duces tecum was duly issued by the clerk and served on respondent, but respondent did not appear and produce the check as commanded.

On February 17th petitioner filed a motion requesting the court to enter an order prohibiting respondent from presenting her grounds for relief. Due notice of this motion was given and a hearing thereon was held. The court found that respondent had “willfully and intentionally failed and refused to obey the dictates of said subpoena duces tecum in failing and refusing to produce at the time and place so ordered that certain written record admittedly in her possession, towit, a certain cancelled check fully described in said subpoena duces tecum, and to submit herself to oral examination with regard thereto, and to continue with and complete her said oral deposition theretofore begun, and that the said plaintiff, in acordance with the declarations and statements made in open court by her attorney of record, will continue to fail and refuse to comply with said orders and instructions * * * .” The Court thereupon dismissed the cause and respondent appealed. The Court of Civil Appeals reversed the judgment of dismissal and remanded the cause for trial. 286 S.W. 2d 182.

The Court of Civil Appeals reversed the judgment of the trial court on the ground that the trial court was without authority to order the production of the check for inspection by opposing counsel in the deposition proceedings.

Petitioner’s application for writ of error was granted on points of error asserting that the Court of Civil Appeals erred in the holding just mentioned. The application contains another point of error (Fourteenth Point) asserting that the error on which the Court of Civil Appeals reversed was not assigned by respondent as appellant in that court and that it was therefore waived. For our purposes we shall assume that petitioner’s Fourteenth Point of error is good and should be sustained. Even so, we must look to the brief filed by respondent as appellant in the Court of Civil Appeals to see if there are other points of error in such brief upon which the judgment of the Court of Civil Appeals should be affirmed. Rule 505, Texas Rules of Civil Procedure.

When we examine respondent’s brief in the Court of Civil Appeals we find included therein her Second Point reading as follows: “The court should have instructed the witness to produce the document rather than work an irreparable hardship on the appellant, by peremptorily dismissing the case for her refusal. to produce it in response to the Notary. Public’s demand.” Under her Second Point of. error respondent argued that it was “unequitable and unconscionable for a Court of equity to finally adjudicate- the rights of (this), plaintiff without an opportunity for the plaintiff, to be heard on the merits.” Neither the point of ■ error- nor the argument,1 strictly speaking, challenges the authority of the court to dismiss the suit, but the point of error and the argument, considered together, definitely complain of the court’s action in dismissing the suit and we feel they are sufficient to authorize an inquiry into the right of the court to order the. dismissal. We further feel that the trial court was without power or authority to penalize respondent by dismissing her suit, and accordingly we hold that the judgment.of the Court of Civil Appeals must be affirmed.

If authority to impose the penalty of dismissal exists it must be found in Rules of Procedure governing the taking of depositions or those governing discovery.

Rules 188, 199-202, Texas Rules of Civil Procedure, relate to and govern the taking of oral depositions. Assuming that a trial court has authority to direct the issuance of a subpoena duces tecum for the production of a private document for examination by the adverse party in a deposition proceeding, there is yet in the foregoing Rules no authority for the dismissal of a suit upon failure to comply with such a subpoena.

Rule 202, after providing for the issuance of a commission to take the deposition of a witness and the issuance of a subpoena to be served upon such witness, contains the following proviso: “Provided .that where the witness is a party to- the suit with an attorney of record, service of the subpoena in such case may be made upon the attorney representing the witness, and if the witness fails to appear in answer to the subpoena, except for good cause shown, such party shall not be permitted to present his grounds for relief or his defenses.” It seems clear that the denial of a party’s right to “present his grounds for relief or his 'defenses” may be imposed as a penalty only if the witness! “fails to appear” in answer to the subpoena. The penalty provided in the Rule is a harsh one and should be imposed only where clearly authorized. The language of the Rule simply does not lend itself to the conclusion that the penalty may be imposed on a party who fails to .produce a private document for examination, in a deposition proceeding. The problem here is not the same and our holding is therefore not in conflict with the majority opinion in Saenz v. Sanders, Texas Civ. App., 241 S.W. 2d 316.

Rule 167 relates to discovery. It specifically authorizes the court to order the production, inspection and copying of private documents “which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody, or control.” Alternative penalties are provided for a refusal to make discovery as required by Rule 167. These penalties are found in Rule 170 and. among them is one authorizing the court to dismiss the action or proceeding. However, as noted by the Court of Civil Appeals, the penalties for failing to make discovery may be imposed only where all parties have been given notice of the motion to require production, etc. and have had an opportunity to be heard. No such notice or opportunity were given respondent in this case.

It may be noted that the order of the trial court dismissing respondent’s suit contained recitations that respondent had refused “to continue with and complete her said oral deposition,” but petitioner admitted that it had finished its examination of respondent, except for its wish to examine the cancelled check and interrogate .respondent with respect thereto, and any fair analysis of the record reveals that respondent did not fail or refuse to complete her oral deposition except in so far as she was required to comply with the subpoena duces tecum in the production of the cancelled check.

As heretofore indicated, it is our opinion that the trial court had no authority to penalize respondent for disobedience of the subpoena duces tecum by dismissing her suit. Had respondent been commanded by subpoena duces tecum to produce the can-celled check on the trial of the case, and had she refused, the trial court might have punished her for contempt but it would have had no authority to dismiss her suit. In the absence of specific provision therefor it had no greater authority to dismiss her suit because of her refusal to produce the check at the deposition proceeding. .

The judgment of the Court of Civil Appeals is affirmed.

Associate Justice Garwood dissenting.

Associate Justice McCall not sitting.

Opinion delivered June 27, 1956.