Opinion
No. 14-02-00435-CV.
Opinions filed May 1, 2003.
Appeal from the 269th District Court, Harris County, Texas, Trial Court Cause No. 00-61957, John Thomas Wooldridge, J.
Reversed and remanded.
Pete Mai, Houston, for appellants.
Kyle Leslie Courtney, Houston, for appellees.
Panel consists of Justices YATES, ANDERSON, and FROST.
MAJORITY MEMORANDUM OPINION
Texas residents Phu The Truong and Mai Truong (appellants) sued Georgia residents Chau Thanh Vuong and Thu Nguyen Vuong (appellees) alleging multiple causes of action based on a transaction involving Chauvin Farm, an egg farm in Georgia. Appellees filed a motion to dismiss for lack of personal jurisdiction and, in the alternative, for forum non conveniens. The trial court granted appellees' motion without stating the specific ground on which it based the dismissal. Construing the trial court's action as a dismissal under the common law doctrine of forum non conveniens, we reverse and remand because appellees' evidence did not establish Georgia as the strongly favored forum.
ISSUES FOR REVIEW
Appellants raise the following two issues: (1) whether there was sufficient evidence to support the trial court's order of dismissal, which the trial court rendered without conducting an evidentiary hearing; and (2) whether the trial court may dismiss a case based on forum non conveniens without first determining it has jurisdiction over the defendants. We first determine the basis of the trial court's ruling. We then briefly address the second issue before turning to the first.
Basis of the Trial Court's Order Dismissing the Case
In its order dismissing the case, the trial court stated only that it was granting appellees' motion, a motion in which appellees set forth alternative grounds: lack of personal jurisdiction and forum non conveniens. The trial court did not state which of the alternative grounds warranted the dismissal.
We nevertheless conclude the trial court based its dismissal on the doctrine of forum non conveniens. The parties do not seriously argue otherwise, and the trial court's "conclusions of law" track the requisite forum non conveniens factors, as discussed in issue one, below. Additionally, the trial court dismissed the case immediately after the hearing on the motion adding forum non conveniens as a ground, long after the trial court heard the original special appearance motion. Finally, if, as it appears from the record, appellees filed a general answer before filing their special appearance, they waived a challenge to personal jurisdiction and submitted to the jurisdiction of the court. See Tex.R.Civ.P. 120a(1); Webb v. Webb, 582 S.W.2d 168, 169-70 (Tex.Civ.App.-Beaumont 1979, writ ref'd n. r. e.).
Because the appellants' cause of action was not based on injury or wrongful death, the statutory forum non conveniens provision found in Texas Civil Practice and Remedies Code section 71.051 does not apply. Direct Color Servs. v. Eastman Kodak Co., 929 S.W.2d 558, 567 n. 2 (Tex.App.-Tyler 1996, writ denied). We therefore further construe the trial court's dismissal as based on common law doctrine.
Issue Two: Determination of Personal Jurisdiction
Before a trial court may invoke forum non conveniens, the court must find it has jurisdiction over the defendant. Exxon Corp. v. Choo, 881 S.W.2d 301, 302 n. 2 (Tex. 1994) (citing Sarieddine v. Moussa, 820 S.W.2d 837, 839-40 (Tex.App.-Dallas 1991, writ denied)). We conclude the trial court implicitly made such a finding. First, as stated above, the appellees, by filing their answer before their special appearance, may have submitted to the jurisdiction of the court, albeit unwittingly. Second, appellees concede they obtained a ruling on forum non conveniens before obtaining a ruling on their special appearance, thereby waiving their special appearance.
We overrule appellants' issue two.
Issue one: Dismissal under the Doctrine of Forum Non Conveniens
Legal Standards and Standard of Review
In issue one, appellants challenge the trial court's dismissal of their lawsuit under the doctrine of forum non conveniens. Under the doctrine of forum non conveniens, a trial court may exercise its discretion to resist imposition of an inconvenient jurisdiction upon a litigant who is otherwise subject to its jurisdiction. Boots v. Lopez, 6 S.W.3d 292, 294 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). A trial court exercises the right to dismiss a case under the doctrine of forum non conveniens when it determines that, for the convenience of the litigants and witnesses and in the interest of justice, the action should be pursued in another forum. Van Winkle-Hooker Co. v. Rice, 448 S.W.2d 824, 826 (Tex.Civ.App.-Dallas 1969, no writ).
The doctrine rests on a strong presumption in favor of the plaintiff's choice of forum, a presumption which a defendant may overcome only when the private and public interest factors clearly point toward trial in the alternative forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 265-66 (1981). In Gulf Oil Corp. v. Gilbert, the United States Supreme Court set forth factors federal trial courts should consider in applying the doctrine of forum non conveniens, and Texas courts have adopted these factors. See, e.g., Cole v. Lee, 435 S.W.2d 283, 285 (Tex.Civ.App.-Dallas 1968, writ dism'd) (listing factors from Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842 (1947)); see also Flaiz v. Moore, 359 S.W.2d 872, 874, 876 (Tex. 1962) (quoting section of Gulf Oil listing private and public factors, but stating it was not considering or attempting to decide, in case before court, "the extent to which the forum non conveniens principle is recognized in Texas").
The private factors a trial court should consider are the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses and the cost of obtaining attendance of willing witnesses, the ability to view the premises (if appropriate), and other practical matters to make trying the case easy, expeditious, and inexpensive. Gulf Oil Corp., 330 U.S. at 508, 67 S.Ct. at 843. The trial court should also consider other "public factors" including the burden imposed upon the citizens of the state and on the trial court, and the general interest in having localized controversies decided in the jurisdiction in which they arose. See Gulf Oil Corp., 330 U.S. at 508-09, 67 S.Ct. at 843.
A court should give greater deference to a plaintiff's choice of forum when the plaintiff has chosen its home forum. Piper Aircraft Co., 454 U.S. at 255, 102 S.Ct. at 266. Unless the balance weighs heavily in favor of the defendant, a court should rarely disturb the plaintiff's choice of forum. Sarieddine, 820 S.W.2d at 840. The defendant bears the burden of proving the factors are in his favor. Id. at 844.
We review the trial court's decision under an abuse of discretion standard. Berg v. AMF, Inc., 29 S.W.3d 212, 215 (Tex.App.-Houston [14th Dist.] 2000, no pet.). The test for abuse of discretion is not whether in the opinion of this court the facts present an appropriate case for the trial court's actions; rather, the test is whether the trial court acted without reference to any guiding rules and principals. Id. "Another way of stating the test is whether the act was arbitrary or unreasonable." Id. The mere fact a trial court may decide a matter within its discretionary authority in a different manner than an appellate court in a similar circumstance, does not demonstrate an abuse of discretion has occurred. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)). The burden of proof rests on the appellant asserting abuse of discretion to overcome the presumption that the action of the trial court was justified. Retzlaff v. Texas Dept. of Criminal Justice, 94 S.W.3d 650, 654 (Tex.App.-Houston [14th Dist.] 2002, pet. denied).
Under an abuse of discretion standard, we do not review factual issues decided by the trial court under legal or factual sufficiency standards. See Crouch v. Tenneco, Inc., 853 S.W.2d 643, 649 (Tex.App.-Waco 1993, writ denied), cited with approval in J.R.W. v. State, 879 S.W.2d 254, 257 (Tex.App.-Dallas 1994, no writ). Whether there was no evidence to support the dismissal, however, is a relevant consideration in determining whether the trial court abused its discretion. See Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex. 1991) (stating same in context of reviewing a turnover award). A trial court abuses its discretion when there is no evidence to support its ruling. Tullis v. Georgia-Pac. Corp., 45 S.W.3d 118, 133 (Tex.App.-Forth Worth 2000, no pet.) (citing Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989)).
See, e.g., Boots v. Lopez, 6 S.W.3d 292, 294-95 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (briefly summarizing facts after listing factors); Seguros Comercial America, S.A. De C.V. v. American President Lines, Ltd., 966 S.W.2d 652, 656 (Tex.App.-San Antonio 1998, no pet.) (same). But see Tullis v. Georgia-Pac. Corp., 45 S.W.3d 118, 128 (Tex.App.-Forth Worth 2000, no pet.) (setting forth standards for legal and factual sufficiency analysis in context of deciding statutory forum non conveniens case); A.P. Keller Dev., Inc. v. One Jackson Place, Ltd., 890 S.W.2d 502, 505 (Tex.App.-El Paso 1994, no writ) (doing same in context of deciding non-statutory forum non conveniens case).
Application
Appellees' proof. Appellees' proof consisted solely of the following: (1) Vuong's affidavit; (2) the affidavit of Clifford W. Harpe, the attorney who represented the appellees in the lease/purchase of Chauvin Farm; (3) the plaintiffs' (appellants') first supplemental response to requests for disclosure, which contained their witness list; (4) a complaint from a pending Georgia lawsuit in which appellees were suing appellants in relation to Chauvin Farm and Phu Farm, a Georgia chicken farm; and (5) the plaintiffs' original response to requests for disclosure, in which appellants listed a Georgia address for themselves. In his affidavit, Vuong states all negotiations with appellees for Chauvin Farm occurred in Georgia. He states the Houston negotiations were for Phu Farm. He also states, "All banking concerns of Chauvin Farms are in Georgia. . . . All parties, property, witnesses and people with knowledge of the purchase and operation of Chauvin Farms are in Georgia." Of the eight named transactional witnesses appellants listed in their first supplemental response to requests for disclosure, six have Georgia addresses or telephone numbers. In addition, appellants listed unnamed "[e]mployees, agents, and custodian of business records of Tyson Foods, Inc.," with a Georgia address. Appellees listed the same witnesses, plus Harpe. As discussed below, this proof is not sufficient to carry appellees' burden of showing the private and public factors weigh heavily in their favor. See Sarieddine, 820 S.W.2d at 840.
The private factors. Detailed affidavits identifying the witnesses defendants will call at trial and the testimony they would present are not necessary. Piper Aircraft Co., 454 U.S. at 258 102 S.Ct. at 267. A party's affidavit indicating who it would call to testify in the alternative forum and the roles of those persons in the incident giving rise to the litigation may suffice. See Piper Aircraft, 454 U.S. at 249 n. 27, 102 S.Ct. at 267 n. 27 (describing sufficient affidavit); see also A.P. Keller Dev., Inc. v. One Jackson Place, Ltd., 890 S.W.2d 502, 504 (Tex.App.-El Paso 1994, no writ) (describing evidence at hearing on motion to dismiss, which evidence the appellate court held sufficient). Nevertheless, defendants must provide the trial court with enough information to balance the parties' interests. See Piper Aircraft, 454 U.S. at 258, 102 S.Ct. at 267.
In the present case, instead of providing an affidavit indicating who they intended to call and the role of each intended witness, appellees relied on appellants' witness list. On the witness list, several Georgia witnesses are described only as having "knowledge of relevant facts." Appellees also have provided no evidence of the difficulty or expense in bringing such witnesses to Texas.
Appellees observe a Texas court does not have compulsory process over Georgia residents. This fact, however, does not prevent the witnesses from testifying voluntarily, and the record does not reflect that any witnesses have informed appellees they will not or are unable to testify if trial is held in Texas.
But see A.P. Keller Dev., Inc. v. One Jackson Place, Ltd., 890 S.W.2d 502, 504, 506 (Tex.App.-El Paso 1994, no writ) (upholding trial court's decision to dismiss without appearing to require evidence of difficulty or expense, instead looking to lack of compulsory process for Mississippi witnesses).
Appellees also point to the fact the farm at issue is located in Georgia. They provided no evidence about why a physical inspection or view of the farm was necessary nor why a videotape or photographs would not suffice.
Appellees argue any judgment obtained would be more easily enforced if rendered in Georgia, but they presented no evidence in support of that claim. We do note that Georgia, like Texas, has adopted the Uniform Enforcement of Foreign Judgments Law. See Ga. Code Ann §§ 9-12-130-138(1993 Supp. 2002); Tex. Civ. Prac. Rem. Code Ann. § 31.001-.008 (Vernon 1997).
The public factors. The trial court found the appellees were residents of Georgia as of August 1999, and "[t]he search for and the negotiation for the purchase of Chauvin Farm was completed entirely in Georgia." There was competent evidence, to which appellants did not object, to support those findings: Chau Thanh Vuong's affidavit. Thus, based on the "significant relationship" factors set out in choice of law cases, a Texas trial court may be applying Georgia law. See Henry Schein, Inc. v. Stromboe, 46 Tex. Sup.Ct. J. 103, 2002 WL 31426407, at *16 (Oct. 31, 2002) (listing factors of "substantial relationship" test for contract and tort actions). Appellees, however, presented no evidence that the relevant Georgia law "is so different from the Texas law as to be difficult or incapable of administration and enforcement by our courts." Flaiz, 359 S.W.2d at 875.
Although appellants listed a Georgia address for themselves in response to appellees' request for disclosure, the trial court made no finding regarding appellants' legal residence, and it appears they were and are residents of Texas. Therefore, Texas does have a relationship to the litigation. The trial court appears to have given little, if any, deference to the fact appellants chose their home forum. Cf. Piper Aircraft Co., 454 U.S. at 255, 102 S.Ct. at 265 (stating greater deference should be given to plaintiff's choice of home forum).
Given the proof on which appellees relied, the trial court abused its discretion in dismissing the case for forum non conveniens. We sustain appellants' issue one.
CONCLUSION
We reverse the order of the trial court and remand for further proceedings consistent with this opinion.
FROST, J., concurs.
The common law doctrine of forum non conveniens is rooted in equity and encompasses an evaluation of many factors impacting both private and public interests. Courts should apply the doctrine "with caution, exceptionally, and only for good reasons." Van Winkle-Hooker Co. v. Rice, 448 S.W.2d 824, 827 (Tex.Civ.App.-Dallas 1969, no writ). Dismissal based on forum non conveniens is appropriate only when a trial court determines that, for the convenience of the litigants and witnesses and in the interest of justice, the action should be instituted in another forum. See id. at 826. The doctrine is not to be invoked lightly, and "`unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.'" Sarieddine v. Moussa, 820 S.W.2d 837, 840 (Tex.App.-Dallas 1991, writ denied) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947)). Here, the Truongs, appellants/ plaintiffs, are Texas residents and chose a Texas forum to pursue their claims. Though the arguments the Vuongs, appellees/defendants, asserted below and repeated in their appellate briefs might justify a Georgia forum for the litigation, the evidence in the record does not support the trial court's decision to disturb the plaintiffs' choice of a Texas forum.
The Vuongs failed to proffer evidence to support the public and private factors that would have justified dismissal based on common law forum non conveniens. A trial court abuses its discretion when there is no evidence to support its ruling. See Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989); D.N.S. v. Schattman, 937 S.W.2d 151, 155 (Tex.App.-Fort Worth 1997, orig. proceeding); Van Winkle-Hooker Co., 448 S.W.2d at 828 (holding that dismissal based on forum non conveniens was an abuse of discretion in absence of evidence other than plaintiff's non-residence in Texas). Though the Vuongs present compelling reasons showing why it might be sensible to dismiss the Texas case so that the litigation could proceed in Georgia, the evidence in the record is legally and factually insufficient to meet the test set forth in Gulf Oil Corp. v. Gilbert. See 330 U.S. at 508-09, 67 S.Ct. at 843. In the absence of such proof, there is no justification for a finding that the balance "strongly" favors dismissal. See Tullis v. Georgia-Pacific Corp., 45 S.W.3d 118, 132-33 (Tex.App.-Fort Worth 2000, no pet.) (holding, in statutory forum non conveniens case, that trial court abused its discretion in dismissing based on forum non conveniens because defendant produced no evidence to support the forum non conveniens factors and did not demonstrate that the balance was strongly in favor of dismissal); Sarieddine, 820 S.W.2d at 841-44 (holding that trial court abused its discretion in dismissing based on common law forum non conveniens because the evidence did not show that the balance of the factors weighed strongly in favor of dismissal).
In conducting a no-evidence analysis, we review the evidence in a light that tends to support the disputed findings and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). If more than a scintilla of evidence exists, it is legally sufficient. Id. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence. Id. at 782-83. When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
In determining whether to dismiss a suit on the grounds of forum non conveniens, the trial court is to consider private factors, such as: (1) the litigants' interests vis a vis the forum that would provide easiest access to sources of proof; (2) the cost of obtaining the presence of witnesses; and (3) the availability of process to compel the attendance of unwilling witnesses. See Flaiz v. Moore, 359 S.W.2d 872, 874-75 (Tex. 1962). In addition, the trial court must consider factors of public interest, such as (1) administrative problems and docket congestion resulting from transfers of cases to metropolitan centers, and (2) concerns involving the courts of one state applying foreign law, particularly when the foreign law so differs from the law of the forum that the courts of the forum would find it difficult or impossible to administer and enforce the foreign law. See id.
Although the Vuongs present arguments on the various factors in their appellate brief, the record contains very little evidentiary support for them. Though some of the public and private factors do not require evidence, other factors cannot be evaluated without evidence. For example, the availability of process to compel the attendance of unwilling witnesses and the concerns regarding courts applying the law of another jurisdiction, in most cases, do not require evidence. On the other hand, it would be very difficult, if not impossible, for the trial court to make decisions regarding access to sources of proof and costs of obtaining witnesses, or to weigh the public interest in avoiding administrative problems and docket congestion without some evidence.
There is nothing in the record relating to the ease of access to sources of proof or the cost, if any, of obtaining the presence of witnesses in Texas. The Vuongs point to the Truongs' responses to requests for disclosure as evidence of these factors. These responses identify a number of individuals having knowledge of relevant facts and several of the individuals listed have addresses in Georgia. But, this list does not address which, if any, of these individuals the parties anticipate calling as witnesses at trial, nor is there anything in the record to indicate whether it would be burdensome or inconvenient for any such witnesses to travel to Texas, if necessary. Though the trial court found that a half-dozen individuals with knowledge of relevant facts reside in Georgia, there is nothing to indicate that these individuals are likely to testify at trial or that their attendance is necessary for trial. The record contains no affidavit testimony, stipulations, or other evidence to show that any party intends to call these individuals to testify at trial, or that their testimony is necessary for the presentation of their claims, or that any of the witnesses are likely to be unwilling to appear for trial in Texas.
The record contains nothing to suggest that there are any costs associated with the appearance of any such witnesses in Texas. It might be that the individuals now residing in Georgia travel frequently to Texas. If so, appearing for trial might impose little, if any, additional cost, and travel to a Texas forum might present no significant inconvenience. Or it might be that there are significant costs or other burdens associated with bringing necessary witnesses to Texas. The affidavits offered in support of the motion neither speak to the cost of obtaining the presence of out-of-state witnesses in Texas nor address the parties' ability or inability to access any sources of proof.
The record contains little that would shed any light on the administrative problems or docket congestion, if any, in the alternative trial court in Macon, Georgia. Nor is there anything in the record to suggest how or whether any such problems might impact the litigation, if the Texas case were dismissed and the parties' dispute were allowed to proceed in Georgia.
This court cannot speculate about matters on which the record is silent. In the face of a silent record, we cannot presume there are no administrative problems in the Georgia courts, nor can we presume there are burdens, costs, and expenses of obtaining witnesses. To effectively weigh the factors that require evidentiary support, the trial court must have affidavit testimony, sworn discovery responses, stipulations, or other evidence. There must be something in the record that allows the trial court to balance the factors and determine whether they weigh strongly in favor of trying the case in another forum. Unsubstantiated, conclusory allegations in the motion to dismiss are insufficient. See PPG Indus., Inc. v. JMB/Houston Centers Partners Ltd. Partnership, 41 S.W.3d 270, 284 (Tex.App.-Houston [14th Dist.] 2001, pet. granted) (holding that conclusory statements are not legally sufficient evidence).
Forum non conveniens considerations allow the trial court to engage in a discretionary balancing of factors in order to determine the most appropriate forum for the litigation. A trial court's balancing of the factors must not be based on speculation or conjecture, but on evidence in the record. Absent proof of inconvenience or additional costs, there is no basis to conclude that maintenance of the action in Texas would work a substantial injustice to the Vuongs or that the balance of private interests of the parties and public interests of the state tilts strongly in favor of a Georgia forum. The Vuongs have not adduced evidence demonstrating that the Texas forum chosen by the Truongs is so completely inappropriate and inconvenient that it would be better to shut down the Texas litigation so that the parties can litigate this dispute exclusively in the Georgia court. See Tullis, 45 S.W.3d at 132-33; Sarieddine, 820 S.W.2d at 841-44. Therefore, the trial court abused its discretion by granting the Vuongs' motion to dismiss based on common law forum non conveniens.