{ "id": 1577355, "name": "Jose GARCIA, Plaintiff-Appellant, v. CO-CON, INC., and Mountain States Mutual, Defendants-Appellees", "name_abbreviation": "Garcia v. Co-Con, Inc.", "decision_date": "1980-12-04", "docket_number": "No. 4548", "first_page": "306", "last_page": "308", "citations": [ { "type": "official", "cite": "96 N.M. 306" }, { "type": "parallel", "cite": "629 P.2d 1235" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "51 Cal.Rptr. 84", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 0 }, { "cite": "63 A.2d 313", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1949, "opinion_index": 0 }, { "cite": "191 Md. 733", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2254055 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/md/191/0733-01" ] }, { "cite": "209 Kan. 511", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 81550 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/kan/209/0511-01" ] }, { "cite": "589 S.W.2d 137", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9929053 ], "opinion_index": 0, "case_paths": [ "/sw2d/589/0137-01" ] }, { "cite": "98 Idaho 598", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4394090 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/idaho/98/0598-01" ] }, { "cite": "51 Cal.Rptr. 78", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1966, "opinion_index": 0 }, { "cite": "241 Cal.App.2d 829", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2159191 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/cal-app-2d/241/0829-01" ] }, { "cite": "51 F.R.D. 9", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 3733625 ], "opinion_index": 0, "case_paths": [ "/frd/51/0009-01" ] }, { "cite": "85 N.M. 20", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771770 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/85/0020-01" ] }, { "cite": "51 Cal.Rptr. 78", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1966, "opinion_index": 1 }, { "cite": "241 Cal.App.2d 829", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2159191 ], "year": 1966, "opinion_index": 1, "case_paths": [ "/cal-app-2d/241/0829-01" ] } ], "analysis": { "cardinality": 472, "char_count": 8220, "ocr_confidence": 0.798, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.34602017337690344 }, "sha256": "3d430c4a8988ed54c81e55b29a9e8e9249923f6e5fbf94da1186ed0b936d510e", "simhash": "1:31c3b7d8780d8d41", "word_count": 1313 }, "last_updated": "2023-07-14T16:25:27.930698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ, J., concurs.", "ANDREWS, J., dissents." ], "parties": [ "Jose GARCIA, Plaintiff-Appellant, v. CO-CON, INC., and Mountain States Mutual, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nPlaintiff appeals from a judgment in a workmen\u2019s compensation case that plaintiff take nothing by his complaint and that it be dismissed with prejudice. We remand.\nThe trial court found:\nPlaintiff sustained an accidental injury while in the scope and course of his employment on August 16, 1977, and, as a result, plaintiff sustained bilateral inguinal herniae which resulted in temporary total disability. It was surgically repaired and plaintiff completely recovered from his disability. Defendant insurer paid all plaintiff\u2019s medical, surgical and weekly benefits. Plaintiff suffers from osteoarthritis which antedated the date of the accident herein and plaintiff\u2019s disability, if any, as of the date of trial was not the direct and proximate result of the accident of August 16, 1977.\nDefendants make much reference to the failure of plaintiff to challenge any of the court\u2019s findings. We find that plaintiff sufficiently and specifically challenged three of the pertinent findings.\nPlaintiff claims that Dr. Cornish\u2019s deposition should not have been admitted in evidence without his signature, absent a stipulation waiving it, as provided for in Rule 30(E) of the Rules of Civil Procedure.\nThe deposition of Dr. Cornish was taken on November 15,1978. Plaintiff was represented by Patrick H. Kennedy, a friend of the attorney of record, and defendant was represented by William W. Bivins. Mr. Bivins announced:\nFor the record, this deposition is being taken according to the usual stipulations and the doctor waives signature.\nThe deposition was then taken without any objections. Mr. Kennedy participated in the examination of Dr. Cornish. The deposition was filed of record December 29, 1978, and trial was held May 18, 1979. At trial, defendant offered in evidence the deposition of Dr. Cornish. Plaintiff objected because no stipulation was entered into that Dr. Cornish\u2019s signature was waived by the parties. The trial court ruled that plaintiff should have alerted defendant if he intended to object to the lack of waiver. The deposition was admitted in evidence.\nRule 30(E) of the Rules of Civil Procedure reads in pertinent part:\n* * * When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and the parties. * * * The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing * * *. [Emphasis added.] Rule 30(E) should be read in conjunction\nwith Rule 32(C)(4) which provides:\n* * * Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been ascertained. [Emphasis added.]\nThere are two methods under which a waiver of signature by the parties can be accomplished: (1) by stipulation of the parties that signature is waived; (2) absent a stipulation, by failure to file a motion to suppress with reasonable promptness after the lack of signature is, or with due diligence, might have been ascertained.\nMere physical presence alone of an opposing lawyer who cross-examined the witnesses does not constitute a waiver of signature. Crabtree v. Measday, 85 N.M. 20, 508 P.2d 1317 (Ct.App.1973); Bernstein v. Brenner, 51 F.R.D. 9 (D.C.1970). Nevertheless, we are confronted with the silence of Kennedy when Bivins announced that \u201cthe doctor waives signature.\u201d Does silence constitute a waiver by stipulation of the doctor\u2019s signature?\nA stipulation is an agreement between lawyers respecting business before the court, and, like any other agreement or contract, it is essential that the parties or their lawyers agree to its terms. McBain v. Santa Clara Savings & Loan Association, 241 Cal.App.2d 829, 51 Cal.Rptr. 78 (1966); First Sec. Bank v. Neibaur, 98 Idaho 598, 570 P.2d 276 (1977); First Nat. Bank In Dallas v. Kinabrew, 589 S.W.2d 137 (Tex. Civ.App.1979). \u201cWhy require a stipulation unless some valuable right is being waived or given up?\u201d Bourne v. Atchison, Topeka and Santa Fe Railway Co., 209 Kan. 511, 497 P.2d 110, 114 (1972).\nSilence amounts to assent when one lawyer says \u201cit is stipulated and agreed,\u201d and the opposing lawyer remains silent. Bloom v. Graff, 191 Md. 733, 63 A.2d 313 (1949). McBain, supra, said:\n* * * However, assent to a stipulation need not be made in a formal manner and under the particular circumstances of a case, where a party\u2019s counsel remains silent and makes no objection to the stipulation, his passive acquiescence may constitute an assent to it. * * * [Emphasis added.] [51 Cal.Rptr. 84.]\nIn the instant case, Bivins did not say: \u201cIt is stipulated and agreed that the doctor waives signature.\u201d\nSilence on the part of Kennedy did not constitute an assent by plaintiff to a stipulation.\nThe remaining question is:\nDid plaintiff\u2019s lawyer fail to file a motion to suppress with reasonable promptness after such absent signature of Dr. Cornish is, or with due diligence might have been ascertained?\nIf plaintiff\u2019s lawyer did fail to so file a motion in time within the meaning of Rule 32(C)(4), the deposition was properly admitted in evidence. If plaintiff\u2019s lawyer\u2019s objections to Dr. Cornish\u2019s deposition use at trial were made with reasonable promptness and due diligence within the meaning of Rule 32(C)(4), supra, the deposition of Dr. Cornish was not admissible in evidence. Crabtree, supra. The admission or non-admission of Dr. Cornish\u2019s deposition is essential to a determination of this case.\nThis cause is remanded to the district court to hold a hearing and determine the following facts:\n(1) On what date did plaintiff\u2019s attorney first know that Dr. Cornish\u2019s deposition was not signed?\n(2) On what date could plaintiff\u2019s lawyer, with due diligence, have ascertained that the deposition was not signed by Dr. Cornish?\n(3) Did plaintiff\u2019s lawyer fail to file a motion to suppress with reasonable promptness?\nThe court reporter shall then transcribe the testimony, with an original and two copies thereof, and include therein the decision of the district court and certify the record to this Court with reasonable promptness.\nLOPEZ, J., concurs.\nANDREWS, J., dissents.", "type": "majority", "author": "SUTIN, Judge." }, { "text": "ANDREWS, Judge\n(dissenting).\nI dissent. I disagree with the assertion that Mr. Bivins would have had to actually say, \u201cit is stipulated and agreed that the doctor waives signature.\u201d Both parties were represented at the time the deposition was taken, and both representatives participated in the taking of the deposition after Mr. Bivins stated, \u201c[t]hat this deposition is being taken according to the usual stipulations and the doctor waives signature.\u201d\nThis Court should not be willing to allow a participant, one who had the opportunity to take part in the deposition, to try to avoid its effects because of a problem in wording. The decision in McBain v. Santa Clara Savings and Loan Association, 241 Cal.App.2d 829, 51 Cal.Rptr. 78 (1966), does not support the proposition for which it is offered. Quite the contrary, the underlying rationale of that decision is that formality is unimportant in the face of apparent acceptance of the stipulations.\nIf the representative did not understand the phrase, \u201cthe usual stipulations\u201d to be equivalent to \u201cit is stipulated and agreed that the doctor waives his signature,\u201d then what did he understand the phrase to mean? He certainly acquiesced to that statement \u2014 thus, he is bound by that acquiescence. Logically, the only thing he could have been agreeing to was the waiver. I would hold him to that agreement and would decide the case on its merits.", "type": "dissent", "author": "ANDREWS, Judge" } ], "attorneys": [ "Anthony F. Avallone, Las Cruces, for plaintiff-appellant.", "William W. Bivins, Bivins, Weinbrenner, Regan, Richards & Paulowsky, P. A., Las Cruces, for defendants-appellees." ], "corrections": "", "head_matter": "629 P.2d 1235\nJose GARCIA, Plaintiff-Appellant, v. CO-CON, INC., and Mountain States Mutual, Defendants-Appellees.\nNo. 4548.\nCourt of Appeals of New Mexico.\nDec. 4, 1980.\nAnthony F. Avallone, Las Cruces, for plaintiff-appellant.\nWilliam W. Bivins, Bivins, Weinbrenner, Regan, Richards & Paulowsky, P. A., Las Cruces, for defendants-appellees." }, "file_name": "0306-01", "first_page_order": 334, "last_page_order": 336 }