Union Carbide Corp. v. Moye, C-9302

• Decision Date: 21 November 1990
• Docket Number: No. C-9302,C-9302
• Citation: 798 S.W.2d 792
• Parties: UNION CARBIDE CORPORATION et al., Relators, v. The Honorable B.D. MOYE, Judge, Respondent.
• Court: Texas Supreme Court

Page 792

798 S.W.2d 792

UNION CARBIDE CORPORATION et al., Relators, v. The Honorable B.D. MOYE, Judge, Respondent.

No. C-9302.

Supreme Court of Texas.

Nov. 21, 1990.

Hubert A. Crouch, III, E. Russell Nunnally, Dallas, David Crump, Houston, P. Michael Jung, William V. Dorsaneo, Jim E. Cowles, Dallas, F. Walter Conrad, Houston, for relators.

Robert M. Campbell, Nelson P. Roach, Daingerfield, for respondent.

OPINION

SPEARS, Justice.

This mandamus proceeding arises out of a suit in which over two thousand plaintiffs are alleging harm from exposure to toxic chemicals around the Lone Star Steel plant in Morris County. Relators here are Union Carbide Corporation and most of the four hundred defendants in the underlying suit (hereinafter referred to as Union Carbide). Union Carbide filed in the trial court a motion to transfer venue on the ground that an impartial trial could not be had in Morris County. See Tex.R.Civ.P. 257. The trial judge conducted a hearing based on a written record only and refused to allow live testimony. The trial judge overruled the motion to transfer venue.

Union Carbide contends that, under Texas Rule of Civil Procedure 258, it was entitled to a full evidentiary hearing with the presentation of live testimony in support of its motion to transfer venue. Alternatively, Union Carbide contends it was entitled to a continuance in order to better prepare for the written submission of its venue motion. We address only the second contention.

After the motion to transfer venue was filed in September 1988, the parties engaged in discovery relevant to the motion. Interrogatories were sent to the plaintiffs in order to identify their relatives in Morris County. Depositions of corporate representatives were noticed. Expert witnesses were designated and deposed.

On January 13, 1989, the trial court handed down an order reciting the parties' agreement "regarding the designation of expert witnesses and persons having knowledge of relevant facts to be called to testify at the venue hearing...." (emphasis added). The order further stated that it applied "only to potential witnesses who may testify at the hearing on Defendants' Motion to Transfer Venue...." The record also reflects that, when the trial judge was scheduling the venue hearing, he stated his expectation that the hearing might last as long as eight weeks. All of the above circumstances led Union Carbide to believe that the court would conduct an evidentiary hearing at which witnesses would be allowed to testify.

On the day the venue hearing was scheduled to begin, plaintiffs filed a motion opposing oral testimony. After allowing Union Carbide less than twenty-four hours to respond, the trial court sustained the plaintiffs' motion and ruled that no oral testimony would be permitted at the venue hearing.

Union Carbide was taken by surprise. Because it had anticipated an eight-week venue hearing, Union Carbide had not arranged to have all of its evidence immediately available at the start of the hearing. Many of the witnesses Union Carbide had expected to call were not in Morris County at that time. Numerous deposition transcripts were not yet available. And, because the trial court had previously extended plaintiffs' deadline for responding to interrogatories to a date after the hearing would be concluded, the defendants had intended to call certain plaintiffs as live witnesses. Thus, Union Carbide had made preparations to assemble its proof in format for a lengthy evidentiary hearing, and its plans were effectively blocked by the trial court's sudden change.

Union Carbide moved for a continuance and requested additional time in order to supplement the record with more affidavits and discovery products. The trial judge denied the continuance and instructed Union Carbide to "present what you have now." Thus, Union Carbide was left unprepared and was unable to present for consideration numerous affidavits and depositions that it might otherwise have had ready.

Given these circumstances, we conclude that the trial court abused its discretion in denying a continuance. Texas Rule of Civil Procedure 258 provides that "reasonable discovery" in support of a motion to change venue "shall be permitted" and expressly provides that deposition testimony and other discovery products may be attached to affidavits on the motion. Since the trial court ruled before most of Union Carbide's discovery products were even available, it effectively denied Union Carbide this right to reasonable discovery set forth in Rule 258. ¹ Moreover, because the trial court implicated itself in misleading Union Carbide as to the format for proof, we conclude that the court effectively deprived Union Carbide of its fundamental due process right to notice and a hearing. Having been misled as to the form of proof that would be acceptable, Union Carbide was placed in the untenable position of being allowed to attend the hearing without being able to submit its proof. Union Carbide cannot be penalized for relying on the court's own order as to the form of proof that would be acceptable. Justice requires that Union Carbide be afforded a reasonable opportunity to supplement the venue record with appropriate affidavits and discovery products prior to the trial court's ruling on the venue motion. Cf. Powell v. United States, 849 F.2d 1576 (5th Cir.1988) (holding that trial court's failure to give adequate notice that case would be decided on a written summary judgment record constituted harmful error).

We conditionally grant the writ of mandamus. The trial judge must vacate his order overruling defendants' motion to change venue and, prior to ruling on the venue motion, must permit a reasonable period of time for supplementation of the record. The writ will issue only if the trial judge fails to act in accordance with this opinion.

Concurring opinions by GONZALEZ and HECHT, JJ.

HECHT, Justice, concurring.

I join the Court in holding that the trial court clearly abused its discretion by denying relators a fair opportunity to present written evidence--affidavits, depositions and discovery responses--on their motion to transfer venue of the underlying litigation on the ground that an impartial trial cannot be had in Morris County. Thus, I agree that the trial court must vacate its order denying relators' motion and must afford them a reasonable opportunity to present evidence in support of their motion. On this score the Court is unanimous.

Whether the trial court can, should or must hear live testimony in connection with relators' motion remains unclear. The Court says only: "While it is clear that Texas Rule of Civil Procedure 258 ¹ requires a trial judge to allow deposition testimony [on a motion made under rule 257], we do not at this time address the question of whether or in what circumstances Rule 258 also requires that a trial judge allow live testimony on [such motion]." Supra at 793 n. 1 (emphasis added). Significantly, the Court expresses no similar reservation regarding the trial court's power to hear live testimony, as distinguished from its duty to do so. Nor does the Court respond to JUSTICE GONZALEZ' compelling arguments for allowing the trial court to hear live testimony in at least some cases. On these issues, which have been fully briefed and argued and are ripe for decision, the Court sends the participants away in the same uncertainty in which they came to us, leaving them to read between the lines.

I agree with JUSTICE GONZALEZ that the trial court is authorized and even obliged by rule 258 to hear live testimony when it is necessary to resolve issues that cannot be determined on a written record. A witness' credibility, for example, may be an important consideration in deciding a motion under rule 257 that is difficult to ascertain from affidavits or transcribed deposition testimony. Other issues, however, may readily be resolved upon written evidence. Again as an example, the strengths and weaknesses of surveys or demographic data, often evidence material to the possibility of an impartial trial in the forum, are sometimes, although not always, of course, apparent from entirely written evidence. I do not agree with JUSTICE GONZALEZ, therefore, that live testimony is necessary whenever the availability of an impartial trial in the forum is disputed. I would hold that under 258 a trial court may hear live testimony and must do so if, but only if, the issues cannot fairly be tried on a written record.

In my view, proceedings under rule 258 are similar to those under rule 120a as amended this year. Rule 120a permits affidavits and the results of discovery processes to be considered in determining a special appearance. The rule also allows the trial court to consider oral testimony, particularly when it appears from the affidavits filed that the facts cannot fairly be presented otherwise. This procedure offers reasonable flexibility in resolving preliminary issues like personal jurisdiction and the availability of an impartial trial while assuring a full and fair presentation of the facts. Its viability depends, however, upon the wise exercise of discretion by the trial court.

This is the procedure the rules prescribed for determining relators' motion to change venue based upon their claim that they cannot receive an impartial trial in Morris County, and the Court says nothing to the contrary. The trial court as well as the parties apparently considered at one point that live testimony would be appropriate on relators' motion and prepared for such a hearing. Nothing in the record indicates that the trial court ever reconsidered the appropriateness of hearing live testimony. The trial court's eventual refusal to hear live testimony appears to have been based upon its view that live testimony was not allowed under rule 258. The Court today does not endorse that construction of rule 258. Accordingly, the trial court should feel free to hear live...