Appeals Court grants writ forcing Judge Floyd to transfer venue on Dole suit

David Yates Jun. 19, 2008, 3:39am

Banana prices aren't the only thing taking flight – Beaumont Justices recently granted a writ of mandamus directing 172nd District Judge Donald Floyd to transfer a Provost Umphrey suit and request for injunctive relief against Dole Food and its lawyers to Harris County.

The original suit, Provost Umphrey vs. Dole Food et al, alleges Dole and its lawyers of negotiating directly with its clients in Nicaragua to settle pesticide exposure claims, and that Dole general counsel Michael Carter and Dole attorney James Teater of Houston conspired to interfere with client contracts.

Provost Umphrey sued Dole, Carter and Teater two years ago for tortious interference with the business relationship between Provost Umphrey and its Nicaraguan clients. The suit also alleges defamation and business disparagement.

The suit claims Dole, Carter, and Teater engaged in a civil conspiracy to accomplish an unlawful purpose through unlawful means and requested a permanent injunction to halt their disruptive actions on top of damages sought.

In December 2007, The Record reported on similar Provost Umphrey litigation accusing Carter of violating the California Bar's rules of professional conduct and Teater of violating the rules in Texas. Provost Umphrey attorney Joe Fisher asked 60th District Court Judge Gary Sanderson to order Dole to stop talking to banana workers he represents.

In that effort, the workers claimed Dow Chemical's Fumazone and Shell Oil's Nemagon rendered them sterile and otherwise harmed them. A Nicaraguan court awarded $97 million to Provost Umphrey clients in 2005, but they haven't collected because defendants appealed.

Also around December 2007 and across the courthouse hall, Judge Floyd denied Dole's motion to transfer venue to Harris County.

Shortly after, Dole appealed the decision on Feb. 12 and four months later on June 12 justices on the Ninth Court of Appeals conditionally granted the company's writ to transfer venue.

Provost Umphrey's second amended petition alleges mandatory and permissive venue lie in Jefferson County. Denying that a "substantial part of the events giving rise to the lawsuit occurred in Jefferson County," Teater and Dole filed motions to transfer venue.

"In this mandamus proceeding, Dole Food Company Inc. and James Teater challenge the overruling of their motion to transfer venue in a suit filed by Provost Umphrey Law Firm LLP," the per curiam opinion states. "Because venue is mandatory in the defendant's county of residence, we conditionally grant relief."

According to the firm's suit, throughout Central America Provost Umphrey represents thousands of banana workers who were allegedly exposed to a nematicide banned in the U. S. since 1977 but allegedly used by Dole in its banana plantations in Nicaragua and other foreign countries. In 2001, the firm signed up 3,000 Nicaraguan banana workers.

Provost Umphrey obtained a judgment in Nicaragua in the amount of $97 million on behalf of 150 Dole workers.

But shortly after the judgment, Provost Umphrey claims that Michael Carter, who is general counsel for Dole, began making public appearances with Victorino Espinales. Provost Umphrey alleges Espinales is a non-lawyer political activist who claims to represent 70 percent of the Nicaraguan banana workers and is the person who made the defamatory statements alleged in the lawsuit.

Espinales informed Provost Umphrey's local counsel that 68 of Provost Umphrey's clients, 66 of whom would presently be summoned to provide testimony and sterility testing in a Nicaraguan court, had revoked Provost Umphrey's power of attorney in favor of Espinales, according to the opinion and court documents.

"Provost Umphrey alleges that Dole is also offering 'testing' and a financial settlement to all its Honduran banana workers, including several thousand who have contracts with Provost Umphrey and who filed suit in California," the opinion states.

On appeal, Dole and Teater contended the mandatory venue provision for suits for injunction applies in this case. Conversely, Provost Umphrey argued that injunction is not the primary relief sought because a judgment for damages will act as a greater deterrent.

Provost Umphrey also argued that there was a prohibited time lapse between the filing of Teater's motion to transfer and obtaining a hearing on the motions.

"In this case, the trial court did not rule on the merits of the case before ruling on Dole's and Teater's motions to transfer," the opinion states.

"Provost Umphrey has not identified any action taken by Dole or Teater that is inconsistent with an intent to pursue the venue motion. In fact, the lapse between filing Teater's motion to transfer and obtaining a hearing on the motions is explained by the removal of the case to federal court, the delayed service on the third defendant, and the timing of Provost Umphrey's response.

"The relators' actions in seeking removal to another jurisdiction do not invoke the general jurisdiction of the court of filing and are not inconsistent with a motion to transfer venue. Filing a notice of removal to federal court, even before filing a motion to transfer, does not waive the venue motion. We note that the trial court did not rule that Dole and Teater waived their right to transfer venue, and we hold that the trial court could not reasonably have based its ruling on waiver.

"The trial court's denial of the motions to transfer amounts to a 'clear and prejudicial error of law,' necessitating mandamus relief," the court wrote. "Accordingly, we conditionally grant the writ of mandamus and direct the trial court to transfer venue to Harris County. The writ will issue only if the trial court fails to comply."

Joe Fisher and Mark Sparks represented Provost Umphrey.

Dole was represented in part by attorney Wayne B. Mason.

Appeals case No. 09-08-056 CV
Trial case No. E177-138

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