                                 Fourth Court of Appeals
                                        San Antonio, Texas
                                      DISSENTING OPINION
                                           No. 04-16-00590-CV

                     IN RE THE GOODYEAR TIRE & RUBBER COMPANY

                                     Original Mandamus Proceeding 1

Opinion by: Karen Angelini, Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice

Sitting:           Karen Angelini, Justice
                   Marialyn Barnard, Justice
                   Luz Elena D. Chapa, Justice

Delivered and Filed: April 26, 2017

           Because I would hold the trial court did not abuse its discretion, I respectfully dissent. First,

unlike In re Michelin North America, Inc., No. 14-15-00578-CV, 2015 WL 7456101 (Tex. App.—

Houston [14th Dist.] Nov. 24, 2015, orig. proceeding [mand. denied]) (mem. op.), and In re

Goodyear Tire & Rubber Co., 437 S.W.3d 923 (Tex. App.—Dallas 2014, orig. proceeding),

Goodyear failed to timely file evidence to support its objections to plaintiffs’ discovery request.

Second, the trial court’s order expressly does not require Goodyear to make a tire it is not currently

manufacturing. Third, Goodyear has judicially admitted it currently has the machine used to

manufacture and design the tire at issue at its Danville plant (or a nearly identical machine).




1
 This proceeding arises out of Cause No. 13-06-12009-DCVAJA, styled Elvia Munoz, et al., v. The Goodyear Tire &
Rubber Co, et al., pending in the 365th Judicial District Court, Dimmit County, Texas, the Honorable Amado J.
Abascal, III presiding.
Dissenting Opinion                                                                    04-16-00590-CV

Inspection and observation of this machine falls squarely within the scope of permissible discovery

for plaintiffs’ manufacturing and design defect claims.

           THE MAJORITY ERRS BY RELYING ON AN UNTIMELY FILED DECLARATION

        Goodyear did not timely file any evidence to support its objections, and the trial court did

not consider untimely evidence. Goodyear argues the trial court erred by not considering its

evidence because the deadline in Rule 193.4 does not apply to motions to compel under Rule 215.

Essentially, Goodyear’s position is that there is no deadline to file evidence to support a discovery

objection at a hearing on a motion to compel.

        To support its holding, the majority relies solely on the declaration of Monroe Griffith,

which Goodyear served one day before the November 4 motion to compel hearing. The majority

justifies relying on Griffith’s declaration because:

        Plaintiffs did not raise a timeliness objection at the November 4 hearing and nothing
        stated by the trial judge at that hearing indicated he was making an evidentiary
        ruling excluding the Griffith declaration from consideration. Therefore, the Griffith
        declaration was before the trial court when it ruled upon the Plaintiffs’ motion.

This is not Goodyear’s argument. The majority also cites no authority. Under Rule 193.4(a),

Goodyear had the burden to obtain the trial court’s permission to consider Griffith’s declaration

because it was not filed at least seven days before the hearing. See TEX. R. CIV. P. 193.4(a)

(providing “evidence” supporting a discovery objection “may be . . . affidavits served at least

seven days before the hearing or at such other reasonable time as the court permits”) (emphasis

added). Nothing in the record shows Goodyear obtained the trial court’s permission to file untimely

evidence, and the trial court’s orders expressly state the court considered only timely filed

evidence. Thus, the Griffith affidavit was not before the trial court. See id.

        Furthermore, the majority’s apparent reliance on Texas Rule of Appellate Procedure 33.1

is misplaced. Rule 33.1 requires a party to object as a prerequisite for presenting a complaint for


                                                 -2-
Dissenting Opinion                                                                       04-16-00590-CV

appellate review. See TEX. R. APP. P. 33.1. Rule 33.1’s preservation rule applies only to a party

seeking to alter or modify the trial court’s order or judgment. See City of San Antonio v.

Winkenhower, 875 S.W.2d 388, 391 (Tex. App.—San Antonio 1994, writ denied). Plaintiffs are

not seeking to alter or modify the trial court’s order, Goodyear is. Thus, the majority errs by

requiring the plaintiffs, who agree with the trial court’s ruling, to have objected to the untimely

evidence. See id.

        The majority erroneously establishes a presumption that all evidence is before the trial

court unless there is an objection to the evidence as untimely and a ruling on that objection. The

Supreme Court of Texas has held an untimely filed affidavit—without some indication that the

trial court granted leave to file untimely evidence—“was not properly before the trial court” in the

summary judgment context. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). This

court has held that a logical extension of this rule is that parties “[a]re not required to object to [a]

response as untimely filed.” Neimes v. Ta, 985 S.W.2d 132, 138 (Tex. App.—San Antonio 1998,

pet. dism’d by agr.). Without any substantive discussion, the majority creates new law and

recognizes a contrary rule for a nearly identical set of circumstances.

        Goodyear presented no timely evidence to support its objections and assertions of privilege.

See TEX. R. CIV. P. 193.4(a). Goodyear failed to obtain the trial court’s permission to present

evidence served on plaintiffs the day before the motion to compel hearing. Plaintiffs were not

required to object to the evidence as untimely, and the trial court expressly declined to consider

Goodyear’s evidence because it was untimely. Thus, there was no evidence before the trial court

to support Goodyear’s objections to plaintiffs’ discovery request. Because Goodyear failed to

support its objections and assertions of privilege under Rule 193.4, this case is readily

distinguishable from Michelin and Goodyear, in which the relators presented evidence to support

their objections.

                                                  -3-
Dissenting Opinion                                                                     04-16-00590-CV

       THE MAJORITY ERRS BY NOT READING THE TRIAL COURT’S ORDER AS A WHOLE

        The majority also holds, without explanation, “[t]he discovery order requires the creation

of evidence.” Goodyear argues the trial court’s order requires the creation of new evidence by

ordering Goodyear to build tires it does not currently manufacture. A trial court’s order “is to be

read as a whole” and “should be interpreted with reference to the entire order.” Lone Star Cement

Corp. v. Fair, 467 S.W.2d 402, 405 (Tex. 1971). First, the trial court’s order expressly provides,

“Goodyear is not required to make any new tire designs or perform any new tire manufacturing

processes that do not already exist.” Second, the order expressly limits the order to “allow[ing]

nothing but visual observation and videotaping” of the normal operation of the tire-building

machine that was used in the manufacturing of the tire that is the subject of this lawsuit (or a nearly

identical machine). Third, the order contains no decretal language requiring Goodyear to do

anything except to “allow visual observation and videotaping” of “the RTN tire machines.”

        Fourth, the language on which Goodyear relies is descriptive of the machines plaintiffs

may video record; it is not prescriptive of any further action by Goodyear. The trial court’s order

contemplates Goodyear might be unable to determine the exact machine that built the tire at issue.

Because Goodyear admitted it has several similar tire-building machines that were used to

manufacture the subject tire and no longer makes the subject tire, the order clarifies which

machines may be observed and video recorded by reference to the tires Goodyear is currently

making with those machines. Contrary to the majority’s and Goodyear’s suggestions, there is

nothing in the trial court’s order requiring Goodyear to make, manufacture, or design a new tire,

and the order does not require Goodyear to interrupt existing operations. Although the trial court’s

order is not a model of clarity, it simply does not require Goodyear to create a tire wholly out of

new cloth.



                                                 -4-
Dissenting Opinion                                                                    04-16-00590-CV

  THE MAJORITY ERRS BY FAILING TO ACCOUNT FOR GOODYEAR’S JUDICIAL ADMISSIONS
      THAT EFFECTIVELY DISTINGUISH THIS CASE FROM MICHELIN AND GOODYEAR

        The majority incorrectly states plaintiffs, during their inspection and recording, “will

observe and record work . . . using different or modified machines.” The majority ignores

Goodyear’s judicial admissions during the motion to compel hearing and oral argument. Goodyear

admitted in the trial court and during oral argument that the tire at issue was created using a

particular tire-building machine that the parties refer to as an “RTN” machine. Goodyear admitted

during the motion to compel hearing that Goodyear had ten of those RTN machines at its Danville

plant. Goodyear represented to this court at oral argument that when it manufactured the tire at

issue, it had ten such RTN machines, and it continues to use three of those RTN machines. Thus,

it is undisputed that Goodyear is currently using either the exact same RTN machine that built the

tire at issue or an RTN machine that is nearly identical to the machine that built the tire at issue.

Consequently, the majority errs by relying on Goodyear, in which “[t]he undisputed affidavit

evidence. . . established . . . the equipment . . . used to manufacture the tire had been removed

from the plant.” 437 S.W.3d at 915. Michelin is also distinguishable because in that case the relator

produced evidence showing the machines to be inspected had been modified. Here, Goodyear

failed to produce evidence showing it does not have the RTN machine used to build the tire at

issue or a nearly identical machine.

        Plaintiffs’ suit includes allegations that Goodyear designed and manufactured a defective

tire. It is inconceivable that an inspection and observation of the RTN machine used to manufacture

and design the tire at issue is not reasonably calculated to lead to the discovery of at least some

admissible evidence to prove plaintiffs’ manufacturing and design defect claims. See Gharda USA,

Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015) (requiring, for a manufacturing-defect

claim, plaintiffs to prove product deviated from design); Smith v. Aqua-Flo, Inc., 23 S.W.3d 473,


                                                -5-
Dissenting Opinion                                                                  04-16-00590-CV

477 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (citing TEX. CIV. PRAC. & REM. CODE

ANN. § 82.005). Therefore, plaintiffs’ request falls squarely within the scope of permissible

discovery. See TEX. R. CIV. P. 192.3(a). Because Goodyear presented no timely evidence to support

its objections and assertions of privilege, the trial court did not abuse its discretion. For these

reasons, Goodyear’s request for mandamus relief must be denied.

                                                 Luz Elena D. Chapa, Justice




                                               -6-
