in Re Alamex, NV ( 2012 )

Opinion issued May 3, 2012.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-12-00037-CV

———————————

In re Alamex, NV, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

          Alamex, NV requests that this Court issue a writ of mandamus compelling the trial court to vacate its order requiring Alamex to produce Carol Fleming, a resident of Curacao, for deposition in Hidalgo County, Texas.[1] We stayed the deposition and now conditionally grant Alamex’s petition.

          This dispute arises from an airplane crash that resulted in the deaths of pilot Jose Francisco Ortiz and passenger Georgina Grimaldo Azuara. To determine Ortiz’s assets, his estate and the Azuara estatesought to depose Fleming on the subject of Ortiz’s interests in Alamex in two separate lawsuits: one pending in Hidalgo County, Texas and another pending in Harris County, Texas. Alamex moved to quash the notices of deposition in both cases. In the Hidalgo County case, the court found that Alamex had designated Fleming as its corporate representative and ordered her to appear for depositionin Hidalgo County. Following the Hidalgo County court’s determination of Fleming’s status as a designated corporate representative, the Harris County courtordered Fleming to appear for deposition in Hidalgo County at the same time and in the same place. Alamex challenges the Harris County court’s order compelling Fleming’s deposition in Hidalgo County.[2]

          Mandamus is an extraordinary remedy, available only when the trial court commits a clear abuse of discretion for which there is no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). “Mandamus will issue when a trial court orders a deposition to occur in a location contrary to the rules of procedure.” In re Wells Fargo Bank, N.A., No. 03-10-00469-CV, 2010 WL 3271159, at *1 (Tex. App.—Austin Aug. 16, 2010, orig. proceeding) (mem. op.) (relying onWal-Mart Stores, Inc. v. Street, 754 S.W.2d 153, 155 (Tex. 1988) (orig. proceeding)).

          Alamex arguesthat the Harris County court abused its discretion because there was no basis on which to order Fleming’s deposition to occur in Hidalgo County. By rule, depositions may be set in the county of the witness’s residence; the county where the witness is employed or regularly transacts business in person; the county of suit, if the witness is a party or a person designated by a party under rule 199.2(b)(1); the county where the witness was served with the subpoena, or within 150 miles of the place of service, if the witness is not a resident of Texas or is a transient person; or, subject to the foregoing, at any other convenient place directed by the court in which the cause is pending. See Tex. R. Civ. P. 199.2(b)(2)(A)−(E). Convenience is determined from the witness’s viewpoint. See Street, 754 S.W.2d at 155.Because it is undisputed that Fleming lives and works in Curacao and there is no allegation that she was served within 150 miles of Hidalgo County or was a transient person, Hidalgo County is a proper location for Fleming’s deposition only if Alamex designated her as its corporate representative and the trial court determined Hidalgo County was a convenient place for her deposition. See Tex. R. Civ. P. 199.2(b)(2)(C), (E).

With respect to the designation of corporate representatives, rule 199.2(b)(1) provides in relevant part:

If an organization is named as the witness, the notice must describe with reasonable particularity the matters on which examination is requested. In response, the organization named in the notice must—a reasonable time before the deposition—designate one or more individuals to testify on its behalf and set forth, for each individual designated, the matters on which the individual will testify. Each individual designated must testify as to matters that are known or reasonably available to the organization.

Tex. R. Civ. P. 199.2(b)(1). The Ortiz and Azuara estates assert that Alamex designated Fleming as its corporate representative under this rule. But all of the evidence on which the estates rely—specifically, discovery responses, in-court representations, correspondence, and pleadings suggesting Fleming’s status as a designated corporate representative—is evidence of Alamex’s conduct in the Hidalgo County litigation, not the Harris County litigation. The estates have not offered evidence of any instance in which Alamex designated Fleming as a corporate representative in the Harris County litigation. Neither have the estates cited any authority providing that the designation of a corporate representative in one lawsuit is sufficient to subject the designated individual to deposition as a corporate representative in an entirely separate proceeding. Rule 199.2(b)(1)does not contemplate thede facto or implied designation asserted by the estates.

          To the extent the estates complain that the Harris County court would have abused its discretion by denying a motion to compel Fleming’s deposition, we note that our holding is not that Fleming is not subject to being deposed. That Alamex has not designated her as a corporate representative does not shield her from being deposed on non-privileged matters within her knowledge. The issue here is whether the trial court abused its discretion by ordering Fleming’s deposition to take place in Hidalgo County. While practical, convenience-based reasonsmay exist for producing Fleming in Hidalgo County at the same time and in the same place she was ordered to appear for another deposition, such considerations do not override rule 199.2’s requirements. With respect to the place of the deposition alone, the trial court erred.

Conclusion

          We conditionally grant the petition for writ of mandamus and order the trial court to vacate its order requiring Alamex to produce Carol Fleming for deposition in Hidalgo County, Texas. Our writ will issue only if the trial court does not comply.

Harvey Brown

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

---

[1]           The underlying case is In re Estate of Jose Francisco Vasquez-Ortiz et al., No. 378,303 in the Probate Court No. 2 for Harris County, Texas, the Honorable Mike Wood presiding.

[2]           Alamex also challenged the Hidalgo County court’s order compelling Fleming’s deposition there by petition for writ of mandamus. The Corpus Christi Court of Appeals denied Alamex’s petition without opinion. See In re Alamex, NV, No. 13-12-00030-CV, 2012 WL 256140, at *1 (Tex. App.—Corpus Christi Jan. 20, 2012, orig. proceeding) (mem. op.).