The Dallas Court of Appeals has denied ExxonMobil’s petition for writ of mandamus alleging that a Dallas County court at law abused its discretion when it denied the company’s motion to dismiss on grounds of forum non conveniens.
In re Exxon Mobil Corporation (No. 05-23-01219-CV; February 13, 2024) arose from a personal injury lawsuit brought by an employee of Louisiana contractor performing work at the company’s Louisiana refinery. Most of the witnesses, as well as the treating physicians, are located in Louisiana. The employee further admitted to being a Louisiana resident (that is, until Exxon filed its answer to raise the forum defense, at which point the employee claimed to be a Texas resident—although not having been one when he sued). Exxon’s mandamus petition also shows that the employee spent 95% of the last two years in Louisiana, his family resided there, he paid rent there, he voted there, he worked for three employers their, he paid taxes there, and various other indicia of residency. The petition goes on to detail a bunch of funny business in which the employee refused Exxon’s discovery request of certain bank records requested by the trial court, insisting that the documents could only be viewed in camera by the court. When the emplouyee produced redacted information to the court, he apparently included an unsworn affidavit—again something Exxon did not see and did not find out about until a subsequent court hearing—that apparently demonstrated that he in some way intended to have a Texas bank account but temporarily moved it to Lousiana. In other words, the employee presented ex parte “evidence” to the court that was withheld from Exxon, despite repeated requests and objections. In any event, the trial court credited this questionable evidence against Exxon and denied its FNC motion.
Based on this ex parte communication, Exxon moved to recuse the trial judge. That motion was granted, and the recusal judge admitted that the ex parte nonsense should never have happened. Nevertheless, the recusal judge denied Exxon’s motion to recuse the offending judge and completely ignored Exxon’s due process objections to the proceedings. Stuck with the same judge, Exxon’s motion to vacate the judge’s prior FNC order was predicatably denied. Exxon sought mandamus relief.
The court of appeals denied relief without much in the way of explanation. That’s a bloody shame, because from what we can tell, this case has a very bad odor. It seems to us that, regardless of the FNC issue (which looks clear as day to us), the trial court’s conduct in allowing and then crediting ex parte evidence is beyond the pale. It’s not much better that the recusal judge acknowledged that and decided not to do anything about it. While we do not and cannot know all the circumstances that will influence the company’s next move in the litigation, based simply on how egregious this looks we would love to see Exxon take this fight up to SCOTX. Surely this kind of conduct cannot be permitted to occur in our courts, no matter who the parties might be.
