In a case out of the 14th Court of Appeals [Houston], the Texas Supreme Court has granted mandamus relief to a defendant business which the trial court compelled to produce a co-defendant independent contractor for an oral deposition. In re Texan Millwork (No. 20-0662) arose from the death of an employee of a granite company when two granite slabs fell off the truck of a contractor for Texan Millwork (TM). The employee’s survivors filed suit against the granite company and the contractor for negligence, gross negligence, and wrongful death. After receiving a default judgment against the contractor, they sued TM, a cabinet maker that hired the contractor to fabricate granite slabs. TM obtained a sworn statement from the contractor and attached it to traditional and no-evidence summary judgment motions asserting that the contractor was not under TM’s actual or contractual control at the time of the accident. When the survivors attempted to serve the contractor with a notice of deposition, however, they were unable to locate him at the address and contact information contained in his sworn statement.

After a year of fruitless effort to find him, the plaintiffs’ attorney sent a letter to TM requesting to depose its “employee,” the contractor. TM responded with a letter stating that the contractor had never been an employee of TM and TM had no idea where he was. The plaintiffs then filed a motion to compel TM to produce its “agent and/or employee” pursuant to Rule 199.3, TCRP. Under that rule, service of notice to a party’s attorney is sufficient to compel the appearance of an agent or employee of the party without a subpoena. They argued that: (1) the contractor was working for TM on the day of the accident, (2) he was the only granite fabricator doing business with TM at that time, (3) he performed several jobs for TM subsequent to the accident, (4) a TM employee was present on the site on the date of the accident, and (5) TM was able to secure a sworn statement from the contractor while the plaintiffs could not. TM responded with a sworn statement of its president denying that the company had any past or present control over the contractor, had not had any contact with him for a year, and did not know where he was. Despite this evidence, the trial court granted the plaintiffs’ motion to compel. The 14th Court of Appeals denied TM’s petition for mandamus on the basis that the trial court impliedly found that the contractor was under TM’s control and that a fact issue existed with respect to his employment status. Since “appellate courts do not deal with disputed areas of fact in original proceedings” (i.e., mandamus), the court of appeals denied the petition.

In a per curiam opinion, SCOTX reversed and directed the trial court to vacate its order. TM argued that Rule 199.3 only applies to witness presently employed, retained, or under the control of a party and that incontrovertible evidence establishes that the contractor was neither employed nor controlled by TM on the date of the notice of deposition to its attorney. Even if past control or employment satisfied the rule, TM argued further, the company never had the agency or employment relationship with the contractor as required by Rule 199.3. Finally, TM argued that the substitute notice provided by Rule 199.3 could not used to compel a defendant to produce a co-defendant for deposition.

The Court agreed with TM that Rule 199.3 applies only to a present agency or employment relationship and that no evidence supports the position that TM had such a relationship with the contractor at the time the notice of deposition was served. Applying the plain language rule of statutory construction, the Court noted that the language of Rule 199.3 uses the present tense and requires contemporaneous employment, retention, or control. The Court then turned to the meaning of Rule 199.3’s use of the terms employment, retention, and control. First “a witness ‘employed’ by a party is one ‘who works in the service of [the party] under an express or implied contract of hire, under which the [party] has a right to control the details of work performance’” (citations omitted). Second, to “retain a witness means ‘to hold . . . under the [party’s] control’” (citations omitted). Third, the broader term “control” means “the direct or indirect power to govern the management . . . of [the] person . . . ; the power or authority to manage, direct, or oversee[.]” (citations omitted). The Court further opined that the term “control” must be read in the same context as the terms “employed” or “retained” to require an existing relationship commensurate with employment or retention. While presently employed or retained witnesses can be coerced to testify, that power neither “predate[s] the witness’s retention, employment, or other similar relationship,” nor does it “survive their succession.”

SCOTX thus held that Rule 199.3 requires the existence of a contemporaneous relationship to trigger the rule’s coercive effect based on both the plain meaning of the rule and the impracticability and unreasonableness of holding a defendant responsible for coercing a witness to appear who does not have that existing relationship. The trial court abused its discretion to the extent of allowing a past relationship to satisfy the rule and finding a fact issue regarding the witness’s present relationship with TM. Because TM had no adequate appellate remedy absent mandamus, the Court conditionally granted TM’s petition for mandamus and instructed the trial court to vacate its order.

In this case, as In re American Airlines, Inc. (No. 20-0789), SCOTX chose to issue a per curiam opinion reversing the courts of appeals in discovery matters (Rule 199.3, apex deponent). Each opinion carefully and thoroughly sets out the Court’s thinking in these matters and reads like a treatise on the issue at hand. It’s almost as if the Court has designed these opinions to be read by inexperienced trial and appellate judges and justices. That, of course, may be nowhere near the case, but in each situation a trial court issued an order favoring a plaintiff without really any basis in the evidence and without explanation. In each situation the court of appeals declined to find that the trial court had abused its discretion, despite seemingly incontrovertible evidence (not to mention law) to the contrary. Are we seeing a trend or just coincidental timing?

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