in Re Alamex, NV

Opinion issued May 3, 2012.

In The

Court of

Appeals

For The

First

District of Texas

————————————

NO. 01-12-00037-CV

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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 on Wal-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 the de 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.).