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December 29, 1989


Appeal from the 131st District Court of Bexar County, Trial Court No. 88-CI-04068, Honorable John G. Yates, Judge Presiding, Reversed and Remanded.


ATTORNEYS FOR APPELLANT: Michael G. Lockwood, Austin, Texas.

ATTORNEYS FOR APPELLEES: John Milano, Jr., Thornton, Summers, Biechlin, et, Otto S. Good, Jo Chris G. Lopez, Shaddox, Compere, Gorham & Good, San Antonio, Texas.

Sitting: Carlos C. Cadena, Chief Justice, David Peeples, Justice, Fred Biery, Justice.

Author: Cadena

Plaintiff, Lou Ann Hogan, who suit to recover damages for libel and slander was dismissed with prejudice because of her failure to appear for a deposition, now seeks reinstatement of her suit. She argues that the dismissal with prejudice constituted an abuse of the trial court's discretion.

Plaintiff's suit was filed on March 9, 1988. On Thursday, April 14, 1988, after 4:00 p.m., defendants delivered to the office of plaintiff's counsel their original answer and a notice that the deposition of plaintiff and her husband would be taken the following Monday, April 18, 1988, at 10:00 a.m. Plaintiff's counsel was out of town on Thursday and Friday, April 14 and 15, but, by hand-delivered letter dated April 15, he requested that the depositions be rescheduled, and explained that he had a conflicting court setting and various other commitments over the ensuing two weeks. He stated that if defendants' attorneys did not agree to a rescheduling of the depositions, a motion for a protective order would be filed.

Defendants' attorneys decided to delay calling plaintiff's counsel until the morning of Monday, April 18, the date which defendants' counsel had set for the taking of the depositions. The call revealed that plaintiff's counsel was indeed in court. After plaintiff failed to appear for the scheduled deposition, counsel for defendants obtained a certificate of non-appearance.

Later that same day the attorneys for the parties met and tentatively agreed to take the depositions of plaintiff and her husband on May 9. After this meeting, but before May 9, plaintiff moved to Schenectady, New York, in order to obtain employment. She explained that she was trying to mitigate the damages resulting from her loss of employment because of defendants' defamatory statements.

On Thursday, May 5, plaintiff's attorney, by hand-delivered letter, told defendants' lawyers he had just learned plaintiff had obtained employment outside of Texas which might interfere with the taking of the depositions on May 9, but that he would know by May 6 whether it would be necessary to reschedule the taking of plaintiff's deposition. On May 6 plaintiff's attorney notified counsel for defendants, again by hand-delivered letter, that plaintiff could not appear for the taking of her deposition on May 9 because her employment began on that date, but that her husband would be available on May 9. Several efforts to telephone the office of defendants' counsel produced no answer from defendants' counsel.

On May 9, after plaintiff failed to appear for her deposition, defendants' attorneys obtained a certificate of non-appearance and on the morning of May 10 filed a motion seeking the dismissal of plaintiff's suit because of her failure to appear for the deposition. By letter dated May 13, counsel for defendants was told that the Hogans would be available for depositions the last week in June or on any weekend in the interim. The motion for dismissal was heard and granted on May 16, 1988.

We reverse and order plaintiff's suit reinstated.

Dismissal of a suit with prejudice because of plaintiff's failure to appear for a deposition is justified only where there has been reasonable notice of the deposition. See TEX. R. CIV. P. 200(2)(a); 215(1)(b)(2)(a) and 215(2)(b)(5).

Whether notice is reasonable depends on the circumstances of each case. In Bohmfalk v. Linwood, 742 S.W.2d 518 (Tex. App.-- Dallas 1987, no writ), plaintiff failed to appear at a deposition of the witness although he received notice four days prior to the setting. Plaintiff totally ignored the notice, voiced no objection and did not seek a postponement. It was not until defendant offered the deposition in evidence at the trial that plaintiff objected to its admission on the ground that he was not given sufficient notice of the date set for taking the deposition. The court of ...

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