Juan Alvarez Gottwald and Axiom, S.A. De C v. v. Rosa Delgado Dominguez De Cano, Lucio Mario Cano Barraza, Mario Sergio Delgado Dominguez, Blanca Delgado De Urquidi, and Patricia Alvarez Ozuna ( 2018 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JUAN ALVAREZ GOTTWALD and §
AXIOM, S.A. DE C.V., No. 08-16-00044-CV
§
Appellants, Appeal from the
§
v. 171st District Court
§
ROSA DELGADO DOMINGUEZ DE of El Paso County, Texas
CANO, LUCIO MARIO CANO §
BARRAZA, MARIO SERGIO DELGADO (TC# 2013DCV4096)
DOMINGUEZ, BLANCA DELGADO DE §
URQUIDI, AND PATRICIA ALVARES
OZUNA, §
Appellees. §
§
OPINION
Appellants, Juan Alvarez Gottwald (Alvarez) and Axiom S.A. de C.V. (Axiom)
(collectively Appellants), filed a civil suit in Texas against five Texas residents (collectively
Appellees) alleging that Appellees caused emotional distress and damages, and were unjustly
enriched, after filing a criminal complaint, and/or giving testimony in support of charges, in a
Mexican proceeding over a contract dispute involving the purchase of undeveloped real property
in Juarez, Mexico. Appellants are non-residents of Texas. Appellees filed and the trial court
granted a motion to dismiss based on forum non conveniens. Appellants challenge the trial court’s
dismissal order. We reverse and remand.
BACKGROUND
The Parties
Alvarez, the sole director of co-appellant Axiom, resides in Doña Ana County, New
Mexico. Axiom is a Mexican corporation doing business in Mexico.
With one exception, Appellees are all Delgado family members—three siblings and one
in-law. Among them, the siblings include Rosa Delgado Dominguez de Cano (Rosa Cano), Mario
Sergio Delgado Dominguez (Mario Delgado), and Blanca Delgado de Urquidi (Blanca Urquidi).
Lucio Mario Cano Barraza (Lucio Cano), is the in-law and he is married to Rosa. Sibling Mario
Delgado and married couple Rosa Cano and Lucio Cano, are all citizens of Mexico who reside in
Texas. Appellee Blanca Urquidi is a citizen of the United States and resides in Texas.
Appellee Patricia Alvarez Ozuna (Patricia Ozuna) is the unrelated fifth person named in
the suit who facilitated the initial contact between Alvarez and certain members of the Delgado
family. Patricia Ozuna has dual citizenship with Mexico and the United States and resides in
Texas.
Contract to Purchase Land
As alleged in Appellants’ third amended original petition, on or about July 23, 2008, Axiom
entered into a contract to purchase undeveloped land in Ciudad Juarez, Mexico, from four members
of the Delgado family: (1) Appellee Rosa Cano; (2) Appellee Mario Delgado; (3) Federico
Delgado, who is now deceased and succeeded in interest by Monica Idaly Delgado Nevarez; and
(4) Jesus Delgado, a defendant named in the underlying suit who has not yet been served with
process.
2
The purchase price of the property was structured to include both a fixed and a contingent
payment: first, Axiom agreed it would initially pay $1,059,394.08; and second, if, within two
years, the Delgados obtained government authorization to establish water and sewage utilities for
the property, Axiom would then be required to pay an additional $2,188,759.68. There is no
dispute the contract was executed in Mexico, and by its terms, Mexican law governed the
transaction, and no part of it required performance in the United States. Appellee Ozuna acted as
an intermediary who relayed messages between Alvarez, as director of Axiom, and the Delgados
regarding Axiom’s purchase of the Delgado property. Appellee Blanca Urquidi did not
participate as a named party to the contract.
Although Axiom made the initial payment as promised, a dispute arose between the parties
over the authorization to establish utilities for the property and the resulting payment owed in
satisfaction of the contingency. Although the Delgados provided a letter from a government
official which purportedly authorized the establishment of utilities, Axiom asserted the letter fell
short of authorizing permits acceptable for commercial development as required by their
agreement. Axiom asserted it would extend the time for performance of the contingency but it
would not accept the authorization as tendered. In opposition, the Delgados contended that they
had fully performed their duties under the contract, and Axiom owed them the additional payment
of $2,188,759.68.
Under Mexican law, fraudulent insolvency to the detriment of creditors is a crime
punishable by a sentence of imprisonment up to four years and a fine. On or about May of 2011,
the Delgados complained to authorities and criminal charges were filed against Alvarez in a
Mexican proceeding alleging that Alvarez had rendered Axiom insolvent to avoid paying its debt.
3
The Delgados asserted that Alvarez had transferred assets from Axiom to another Mexican
company he controlled thereby causing Axiom to become insolvent. Based on the criminal
complaint, on August 23, 2013, Alvarez was arrested and imprisoned in the Cereso Prison of
Juarez, Mexico. A Mexican court later conducted a preliminary hearing in which several
members of the Delgado family and others testified. The Mexican court found sufficient evidence
to support a preliminary investigation and ordered that Alvarez remain in custody until November
28, 2013. Rather than await trial or appeal the decision, after eleven days of confinement, Alvarez
paid the Delgado family the full amount of the contingency payment and all criminal charges were
dismissed as provided by Mexican law.
Alvarez and Axiom subsequently sued Rosa Cano, Lucio Cano, Mario Delgado, Blanca
Urquidi, Patricia Ozuna, Monica Idaly Delgado Nevarez, and Jesus Ignacio Delgado Dominguez
in the 171st District Court in El Paso County, alleging they caused Alvarez to be imprisoned in
Mexico by filing the criminal complaint against him.1 Appellants’ causes of action were for abuse
of process, conspiracy to abuse process, intentional infliction of emotional distress, conspiracy to
commit intentional infliction of emotional distress, and money had and received. As damages,
Appellants sought restitution for the money he paid to the Delgados to obtain the dismissal of the
Mexican criminal charge, for emotional distress, and for exemplary damages for “substantial
injury and harm.” On its own, Axiom also filed suit in a Mexican court against Rosa Cano, Mario
Delgado, Monica Nevarez, and Jesus Delgado, alleging unjust enrichment and sought restitution
of the same funds at issue in the lawsuit filed in El Paso County.
In addition to a plea to the jurisdiction, Appellees filed a motion to dismiss the El Paso
1
These latter two defendants were never served with process.
4
County lawsuit on the ground of forum non conveniens. Appellees asserted that the relevant
witnesses and physical evidence were in Mexico and controlling legal questions needed to be
decided under Mexican law. The trial court granted the motion and issued findings of fact and
conclusions of law in support of its order. The trial court concluded that (1) a court in Mexico is
an alternative forum; (2) that the dispute between the parties was factually and legally a Mexican
dispute such that the facts arose in Mexico and Mexican law would be necessarily involved in
resolving the dispute; (3) that both the private and public interests weighed heavily in favor of the
lawsuit being litigated in a Mexican court; and (4) that a court in Mexico provided the more
appropriate court to resolve the dispute. Appellants appealed the trial court’s grant of Appellees’
motion to dismiss.
DISCUSSION
In three issues, Appellants argue the trial court abused its discretion in granting Appellees’
motion to dismiss on the grounds of forum non conveniens. Appellants’ first two issues challenge
the sufficiency of the evidence in support of the dismissal of the case, asserting that (1) no
alternative forum was shown to be “available;” and (2) no evidence exists to support dismissal.
In their third issue, Appellants contend the evidence established that El Paso County not only
maintains jurisdiction over all parties but also provides a convenient forum that works no injustice
to Appellees-movants.
Standard of Review
The determination of whether to grant or deny a motion to dismiss based on the doctrine
of forum non conveniens is committed to the sound discretion of the trial court. Quixtar Inc. v.
Signature Management Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (citing Piper Aircraft Co. v.
5
Reyno, 454 U.S. 235, 257, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981)). As such, reversing a trial
court’s dismissal under the doctrine of forum non conveniens is only proper when there has been
a clear abuse of discretion. Id. (quoting Piper Aircraft Co., 454 U.S. at 257) (emphasis added).
A trial court commits an abuse of discretion when it acts without reference to any guiding rules
and principles, and when there is no evidence to support its ruling. Id. (citing Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)); Tullis v. Georgia-Pacific
Corp., 45 S.W.3d 118, 132–33 (Tex. App.—Fort Worth 2000, no pet.) (citing Loftin v. Martin,
776 S.W.2d 145, 148 (Tex. 1989)). In assessing whether a trial court abused its discretion,
relevant factors include the legal and factual sufficiency of evidence supporting the court’s
findings. Tullis, 45 S.W.3d at 121.
In determining a legal sufficiency issue, we consider all evidence in the light most
favorable to the party in whose favor the court ruled, and indulge every reasonable inference from
the evidence in that party’s favor. Formosa Plastics Corp. USA v. Presidio Engineers &
Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). A legal sufficiency issue may only be
sustained when the record discloses (1) a complete absence of evidence of a vital fact; (2) the court
is barred by rules of law or evidence from giving weight to the only evidence offered to prove a
vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence;
or (4) the evidence establishes conclusively the opposite of a vital fact. Merrell Dow Pharm.,
Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). There is some evidence to prove the existence
of a vital fact when the proof supplied furnishes a reasonable basis for reasonable minds to reach
differing conclusions as to the existence of a vital fact. Orozco v. Sander, 824 S.W.2d 555, 556
(Tex. 1992).
6
Doctrine of Forum Non Conveniens
Forum non conveniens is an equitable doctrine exercised by courts to prevent the
imposition of an inconvenient jurisdiction on a litigant. Exxon Corp. v. Choo, 881 S.W.2d 301,
302 n.2 (Tex. 1994); Yoroshii Investments (Mauritius) Pte. Ltd. v. BP Intern., Ltd., 179 S.W.3d
639, 643 (Tex. App.—El Paso 2005, pet. denied) (citing Keller Dev., Inc. v. One Jackson Place,
Ltd., 890 S.W.2d 502, 505 (Tex. App.—El Paso 1994, no writ)). A trial court is authorized to
exercise the doctrine upon its determination that the interests of the litigants and witnesses warrant
a different forum. Yoroshii, 179 S.W.3d at 643. The doctrine properly applies when personal
jurisdiction exits over the parties, but the action has no significant connection to the forum. In re
Bridgestone Americas Tire Operations, LLC, 459 S.W.3d 565, 568 (Tex. 2015).
Although the doctrine of forum non conveniens has its roots in common law, in 1993 it was
codified to some extent by the Texas Legislature in the Civil Practice and Remedies Code. See
Daniels v. State, 538 S.W.3d 139, 146 (Tex. App.—El Paso 2017, pet. denied); TEX. CIV. PRAC.
& REM. CODE ANN. § 71.051(b) and (i) (West Supp. 2017). Texas law recognizes two types of
forum non conveniens dependent on the type of cause of action asserted. Daniels, 538 S.W.3d at
146–47. First, statutory forum non conveniens applies in cases involving personal injury or death.
TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b), (i). Second, for all other causes of action,
common law forum non conveniens applies to the circumstances. See Daniels, 538 S.W.3d at
147-48.
There are several important distinctions between statutory forum non conveniens and
common law forum non conveniens which are worthy of mention but not exhaustively detailed.
First, unlike common law forum non conveniens, statutory forum non conveniens includes
mandatory language requiring dismissal of claims if the court finds it would be in the interest of
7
justice and for the convenience of the parties. TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b);
Daniels, 538 S.W.3d at 147–48. Second, under statutory forum non conveniens, a court cannot
stay or dismiss a claim if the plaintiff is a legal resident of Texas; this resident protection provision
does not exist in common law forum non conveniens. Id. § 71.051(e); Daniels, 538 S.W.3d at
146; In re Elamex, S.A. de C.V., 367 S.W.3d 879, 887 (Tex. App.—El Paso 2012, no pet.).
Finally, Section 71.051 only applies to “personal injury” cases, which this Court has recently
interpreted as excluding torts outside the scope of wrongful death or bodily injury claims. TEX.
CIV. PRAC. & REM. CODE ANN. § 71.051(i); Daniels, 538 S.W.3d at 147–48. In contrast, common
law forum non conveniens applies broadly to all cases not falling under Section 71.051. See
Daniels, 538 S.W.3d at 148–49 (applying common law forum non conveniens analysis to claims
for fraud, breach of fiduciary duty, defamation, malicious prosecution, false imprisonment,
deprivation of First Amendment rights, deprivation of equal protection, and due process,
conspiracy to defraud, and conspiracy to obstruct justice).
Does Statutory forum non conveniens Apply to the Causes of Action Asserted?
In Daniels v. State of New Mexico, we recently addressed which type of cause of action
constitutes a “personal injury” for the purposes of Section 71.051. Daniels, 538 S.W.3d at 147.
In Daniels, the plaintiff sued for fraud, breach of fiduciary duty, defamation, malicious
prosecution, false imprisonment, deprivation of First Amendment rights, deprivation of equal
protection and due process, conspiracy to defraud, and conspiracy to obstruct justice. Id. Based
on a survey of case law regarding Section 71.051, we concluded that actions for dismissal under
that statute are confined only to claims of wrongful death or bodily injury and have not been
applied to claims for other torts. See id. Supporting this narrow reading, we determined that the
8
legislative history of the statute indicated that it was established in response to bodily injury and
wrongful death claims arising from out-of-state asbestos-related cases. See id. Bearing these facts
in mind, we interpreted the legislative intent of Section 71.051’s “personal injury” language as
requiring bodily injury. See id. In so doing, we declined to apply statutory forum non conveniens
analysis to the plaintiff’s non-personal injury claims, and applied common law forum non
conveniens analysis instead. See id. at 147–48.
In this case, Appellants sued Appellees for abuse of process, conspiracy to abuse process,
intentional infliction of emotional distress, conspiracy to commit intentional infliction of
emotional distress, and money had and received. Appellants’ claims of abuse of Mexican process
and money had and received, and related conspiracy claims, do not sound in “personal injury”
within the context of Section 71.051(i), and so we decline to apply statutory forum non conveniens
analysis to those claims. See id. (declining to apply statutory forum non conveniens to malicious
prosecution and fraud claims).2
The question of whether Appellants’ intentional infliction of emotional distress claim is a
tort sounding in “personal injury” is a closer call. In Plumley v. Landmark Chevrolet, Inc., 122
F.3d 308, 311 (5th Cir. 1997), the Fifth Circuit Court of Appeals decided that an intentional
2
The elements of a cause of action for abuse of process are: (1) that the defendant made an illegal, improper,
perverted use of the process; (2) that the defendant had an ulterior motive or purpose in exercising such illegal,
perverted, or improper use of process; and (3) that damage resulted to the plaintiff from the irregularity. J.C. Penney
Co. v. Gilford, 422 S.W.2d 25, 31 (Tex. Civ. App.—Houston [1st Dist.] 1967, writ ref’d n.r.e.). To constitute an
abuse of process, the process must be used to accomplish an end which is beyond the purview of the process, and
which compels a party to do a collateral thing which he would not be compelled to do. Blanton v. Morgan, 681
S.W.2d 876, 878 (Tex. App.—El Paso 1984, writ ref’d n.r.e.). We do not believe that this cause of action sounds in
“personal injury” in the context of Section 71.051.
Likewise, money had and received is a category of general assumpsit to restore money where equity and good
conscience require refund. Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.—El Paso 1997, no writ).
Thus, this action is based on an injury to pecuniary interests, not bodily harm, and it does not fall into the category of
“personal injury” for the purposes of Section 71.051(i) either.
9
infliction of emotional distress claim does not constitute a “cause of action for personal injury” for
the purpose of the Texas Survival Statute because that tort does not “injure health, reputation, or
body.” In its decision, the Fifth Circuit relied on Boyles v. Kerr, 855 S.W.2d 593, 598 (Tex.
1993), which stated that there is no requirement that emotional distress manifest itself physically
to be compensable in an intentional infliction of emotional distress claim. See Plumley, 122 F.3d
at 311. We agree with the Fifth Circuit’s reasoning, and conclude that because a claim of
intentional infliction of emotional distress does not require a manifestation of physical injury,3 it
is also not a claim sounding in “personal injury” within the context of Section 71.051.
Since none of these claims sound in wrongful death or personal injury within the terms of
Section 71.051, and in light of the controlling precedent of Daniels, we cannot apply statutory
forum non conveniens and instead turn to common law forum non conveniens for our analysis.
See Daniels, 538 S.W.3d at 147–48 (applying common law forum non conveniens analysis instead
of statutory forum non conveniens analysis when the plaintiff’s claims were for fraud, breach of
fiduciary duty, defamation, malicious prosecution, false imprisonment, deprivation of First
Amendment rights, deprivation of equal protection, and due process, conspiracy to defraud, and
conspiracy to obstruct justice).
3
To recover damages for intentional infliction of emotional distress, a plaintiff must establish that: (1) the defendant
acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s actions
caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Standard Fruit &
Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998). While physical injury is compensable if shown as a result
of intentional infliction of emotional distress, it is not a required showing to prevail on an intentional infliction of
emotional distress claim. See id.; Schlueter v. Schlueter, 975 S.W.2d 584, 587 (Tex. 1998) (an intentional infliction
of emotional distress claim does not necessarily require evidence of the physical aspects of assault or battery); Toles
v. Toles, 45 S.W.3d 252, 262 (Tex. App.—Dallas 2001, pet. denied) (if physical harm is present in an intentional
infliction of emotional distress claim, it is considered as part of the damages).
10
Common law forum non conveniens
We now consider whether the trial court abused its discretion in granting Appellees’ motion
to dismiss under the common law doctrine of forum non conveniens. See id. at 148. Generally,
a plaintiff’s choice of forum is entitled to deference, and a defendant seeking forum non conveniens
dismissal “bears a heavy burden in opposing the plaintiff’s chosen forum.” Quixtar, 315 S.W.3d
at 31 (citing Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430, 127 S. Ct.
1184, 167 L. Ed. 2d 15 (2007)). A non-resident plaintiff’s choice to sue in Texas, however, enjoys
“substantially less deference” than it would if the plaintiff had been a resident of Texas. See id.
at 33. As such, a defendant’s burden of proof is less stringent when plaintiffs are not Texas
residents. See id.
Availability and adequacy of an alternate forum
This appeal necessarily begins with a threshold question of whether a Mexican court
provides an “alternate” forum.4 The doctrine of forum non conveniens presumes that at least two
forums are available to the plaintiff to pursue the claim. Sarieddine v. Moussa, 820 S.W.2d 837,
841 (Tex. App.—Dallas 1991, writ denied) (citing Van Winkle-Hooker Co. v. Rice, 448 S.W.2d
824, 826 (Tex. Civ. App.—Dallas 1969, no writ). For the presumption to apply, however, there
must be a suitable alternate forum that is both “available” and “adequate.” Daniels, 538 S.W.3d
at 146 (citing In re Elamex, 367 S.W.3d at 887). An alternate forum is “available” if it has
4
Ordinarily, an alternate forum is shown if the defendant is “amendable to process” in the other jurisdiction. Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22, 102 S. Ct. 252, 265, 70 L. Ed. 2d 419 (1981). There may be
circumstances, however, where an alternate forum is not adequate because the remedies it offers are so unsatisfactory
that they really comprise no remedy at all. Id. Yet, comparative analyses of procedures and substantive law in
different forums should be given little weight in a forum non conveniens analysis because such analyses pose
significant practical problems. Id. at 251, 102 S.Ct. at 263. Comparison of the “rights, remedies, and procedures”
available in each forum would require a complex exercise in comparative law that the forum non conveniens doctrine
is designed to help courts avoid. Id.
11
jurisdiction over all the parties and the whole case, or if there is evidence that all defendants are
amenable to process or have consented to process in the alternate forum. Id. (citing Yoroshii, 179
S.W.3d at 643); Tellez v. Madrigal, 223 F. Supp. 3d 626, 635 (W.D. Tex. 2016). An alternate
forum is not considered “adequate” if the remedies it offers are so unsatisfactory that they really
offer no remedy at all; but different or less advantageous remedies will not render an alternate
forum inadequate. Daniels, 538 S.W.3d at 146 (citing In re ENSCO Offshore Int’l Co., 311
S.W.3d 921, 924 (Tex. 2010)).
The issue of whether an alternate forum is available and adequate is an issue considered in
both statutory and common law forum non conveniens analysis, although we note the statutory
analysis differs somewhat from the common law approach. Under Section 71.051(b), whether an
alternate forum is available is but one of several factors considered in a statutory forum non
conveniens analysis. See TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b)(1–2); In re ENSCO,
311 S.W.3d at 925–26 (considering availability and adequacy in a statutory forum non conveniens
analysis).
In contrast, under common law forum non conveniens analysis, whether a forum is both
available and adequate is a threshold question to be answered before a court can weigh the public
and private factors considered in a common law forum non conveniens analysis. See In re Pirelli
Tire, 247 S.W.3d 670, 677 (Tex. 2007) (“[t]he Gulf Oil factors presuppose that an adequate
alternative forum would have jurisdiction over the case”) (citing Gulf Oil v. Gilbert, 330 U.S. 501,
507, 67 S. Ct. 839 (1947)); In re Elamex, 367 S.W.3d at 887 (“[b]ecause the common law doctrine
of forum non conveniens presumes that at least two forums are available to a plaintiff, a trial court
must first determine whether an alternative forum exists, inquiring whether another forum is
12
‘available’ and ‘adequate’”) (emphasis added), accord Daniels, 538 S.W.3d at 147; Grynberg v.
Grynberg, 535 S.W.3d 229, 235 n.5 (Tex. App.—Dallas 2017, no pet.) (“[g]enerally, before
reaching the Gulf Oil factors, the first step of the forum non conveniens analysis is to consider
whether an alternative forum exists that is available and adequate”); Direct Color Services, Inc. v.
Eastman Kodak Co., 929 S.W.2d 558, 563 (Tex. App.—Tyler 1996, writ denied) (the first step in
a forum non conveniens analysis is to determine whether an alternate forum is available and
adequate because the doctrine presumes that at least two forums are available to the plaintiff to
pursue the claim, and the second and third steps in the analysis are to weigh the private and public
interest factors).
Since we apply a common law forum non conveniens analysis to this case, we will first
consider the threshold question of whether a Mexican court is an available and alternate forum as
required by the doctrine.
Is a Mexican court an “available” alternate forum?
Here, the record before us shows that Appellants are Mexican citizens, with Alvarez
residing in New Mexico and Axiom being a Mexican corporation doing business in Mexico.
Since Appellants are non-resident plaintiffs, we apply the less stringent standard which lessens
Appellees’ burden of proof on their motion to dismiss for forum non conveniens. See Quixtar,
315 S.W.3d at 31 (a defendant seeking dismissal on forum non conveniens grounds “ordinarily
bears a heavy burden in opposing the plaintiff’s chosen forum,” although a non-Texas resident’s
choice of forum receives less deference).
Next, we must determine whether all parties and all causes of action are available in
Mexico. See Daniels, 538 S.W.3d at 146–47. Here, at least two of five appellees are clearly
13
amenable to process in Mexico: Rosa Cano and Mario Delgado. The record shows that as a
condition of the dismissal of Appellants’ El Paso County lawsuit, these two Appellees, Rosa Cano
and Mario Delgado, consented to process in a Mexican court for Axiom’s lawsuit against them.
See id. at 146 (citing Yoroshii, 179 S.W.3d at 643) (an alternate forum is available where
defendants have consented to process in the alternate forum). Since Axiom filed a lawsuit in a
Mexican court, it is established that it has consented to jurisdiction there and that a Mexican court
is an available forum as to it. See K2M3, LLC v. Cocoon Data Holding Pty. Ltd. ACN 127 993
300, No. 13-11-00194-CV, 2012 WL 2469705, at *6 (Tex. App.—Corpus Christi June 28, 2012,
pet. denied) (mem. op.) (an appearance in a foreign court is sufficient evidence to establish
jurisdiction of that court for the purposes of considering its availability in a forum non conveniens
analysis). Axiom, however, did not name other Appellees as defendants in its Mexican suit. In
short, we may initially conclude that a Mexican court is an available alternate forum for the
purposes of a forum non conveniens analysis as to Axiom, Rosa Cano, and Mario Delgado.
The answer is less clear regarding Appellant Alvarez, and Appellees Lucio Cano, Blanca
Urquidi, and Patricia Ozuna. It can be inferred that Alvarez would submit to a Mexican court’s
jurisdiction since he, as the director of Axiom, filed a lawsuit on its behalf in Mexico. While
Appellants’ letter from the Mexican attorney stated that a Mexican court would not have subject-
matter jurisdiction over Blanca Urquidi or Patricia Ozuna, it is silent on whether a Mexican court
would have personal jurisdiction over these parties. Neither of these parties, nor Lucio Cano for
that matter, live in Mexico. Further, unlike Rosa Cano and Mario Delgado, Appellees Lucio
Cano, Blanca Urquidi, and Patricia Ozuna, have not consented to a Mexican court’s jurisdiction.
Likewise, nothing in the record indicates that any of these parties are amenable to process
14
in Mexico, with the possible exception of Blanca Urquidi, who travels to Ciudad Juarez several
days a week to engage in a dentistry practice. In addition, the trial court’s findings of fact and
conclusions of law in support of its grant of Appellees’ motion to dismiss is silent on the issue of
whether a Mexican court is available or adequate for the purposes of a forum non conveniens
analysis. Without addressing whether the forum is “available” as to all parties, the court’s
conclusion of law merely states without further explanation that a court in Mexico is an
“alternative” forum.
Based on the record before us, we cannot say that Appellees met their burden in proving
that a Mexican court is an available forum as to Appellees Lucio Cano, Blanca Urquidi, or Patricia
Ozuna, even considering the less stringent standard being applied due to Appellants’ status as non-
residents of Texas. See Quixtar, 315 S.W.3d at 31 (a defendant seeking dismissal on forum non
conveniens grounds “ordinarily bears a heavy burden in opposing the plaintiff’s chosen forum,”
although a non-Texas resident’s choice of forum receives less deference) (citing Sinochem Int’l
Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430, 127 S. Ct. 1184, 167 L. Ed. 2d 15 (2007)).
Under Texas law, it is possible that a Texas court could assert its jurisdiction over nonresident
defendants through the Texas long-arm statute; yet, the record is silent on whether a Mexican court
could exercise similar power over the defendants living in Texas, and Appellees have not met their
burden at the trial court by presenting evidence that a Mexican court would have such jurisdiction
over all parties and claims in the case.5 See generally TEX. CIV. PRAC. & REM. CODE ANN. §§
5
In other forum non conveniens cases involving foreign courts’ assertion of personal jurisdiction over nonresident
defendants, parties have presented evidence, such as affidavits or testimony by experts in international law, to support
the notion that a court would have personal jurisdiction over a party, or that a party would be amenable to process in
that country. See, e.g., In re Bridgestone, 459 S.W.3d at 577 (defendant presented testimony by an expert in Mexican
law that Mexican courts would have jurisdiction over all defendants in its motion to dismiss for forum non conveniens);
DTEX, LLC v. BBVA Bancomer, S.A., 508 F.3d 785, 796 (5th Cir. 2007) (both parties presented affidavits by experts
on Mexican law regarding adequacy and availability of foreign forum); In re Dauajare-Johnson, No. 14-14-00256-
15
17.041 –.045 (West 2015) (sections relevant to the Texas long-arm statute, which allows Texas
courts to exercise jurisdiction over nonresident defendants); see also BMC Software Belgium, N.V.
v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002) (describing the Texas long-arm statute generally).
In particular, Appellees have presented no evidence demonstrating that a Mexican court would
have personal jurisdiction over Lucio Cano, Blanca Urquidi, or Patricia Ozuna, or that they would
be amenable to process in Mexico or have consented to jurisdiction there; thus, a Mexican court is
not an available alternate forum as to those parties.6
Since there is no evidence in the record to show that there was an available alternate forum
as to all parties, the trial court abused its discretion in granting the motion to dismiss on forum non
conveniens grounds. See Tullis, 45 S.W.3d at 131–32 (a defendant fails to meet its burden in
showing an alternate forum is available when it fails to produce evidence that all parties would be
CV, 2014 WL 3401094, at *4 (Tex. App.—Houston [14th Dist.] July 10, 2014, orig. proceeding) (mem. op.) (plaintiff
produced expert testimony from Mexican law expert on Mexico’s jurisdiction over parties). Appellees did not present
such evidence in support of their motion to dismiss for forum non conveniens, and based on the record before us, we
cannot say with any certainty that a Mexican court would have personal jurisdiction over Lucio Cano, Blanca Urquidi,
or Patricia Ozuna, or that those parties would be amenable to process in Mexico.
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Nevertheless, Appellees cite to the Texas Supreme Court case of In re Bridgestone for the propositions that (1) in
the context of a forum non conveniens analysis, Texas courts have recognized Mexican courts’ ability to “seize
jurisdiction” when a foreign court rejects a suit on forum non conveniens grounds, and (2) that dismissal on forum non
conveniens grounds was supported even when one of the named defendants stated that he would not submit to the
jurisdiction of Mexican courts. See In re Bridgestone, 459 S.W.3d at 577. In Bridgestone, the defendants in the case
presented testimony from a Mexican-law expert in support of similar contentions as are made here, and supportive of
the Mexican court’s jurisdiction over all defendants of the case. Id. Yet unlike the defendants in Bridgestone,
Appellees here did not similarly present evidence in support of their motion to dismiss that affirmatively showed that
a Mexican court exercise jurisdiction over all parties in this case. See id. As such, we find Bridgestone to be
distinguishable, and disagree with Appellees’ argument that a Mexican court would have jurisdiction over all
defendants in this case when Appellees did not present evidence establishing that contention.
Appellees point to the fact that Appellants’ lawyer’s report mentioned that this case “is not a matter of personal
jurisdiction, but of the subject matter jurisdiction of the Mexican court,” since Blanca Urquidi and Patricia Ozuna
were not parties to the contract with Axiom, and therefore Axiom is not entitled to sue them under Mexican law.
Although we note the Mexican lawyer included a passing comment about personal jurisdiction, the report does not
clearly establish that a Mexican court would have personal jurisdiction over Blanca Urquidi or Patricia Ozuna, or that
either party is amenable to process in Mexico. Thus, we are unable to consider the report as evidence tending to
establish either contention.
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amenable to service in a foreign court and subject to its jurisdiction). As we resolve Appellants’
issue by determining that no alternate forum has been shown to be available, we need not address
whether the alternate forum provides an adequate remedy, or to address the public and private
factors of Gulf Oil as required in a common law forum non conveniens analysis. See In re Elamex,
367 S.W.3d at 887 (“[b]ecause the common law doctrine of forum non conveniens presumes that
at least two forums are available to a plaintiff, a trial court must first determine whether an
alternative forum exists, inquiring whether another forum is ‘available’ and ‘adequate’”)
(emphasis added). Likewise, because we sustain Appellants’ first issue, we need not address
Appellants’ second or third issues at this time.
CONCLUSION
We sustain Appellants’ first issue, reverse the trial court’s grant of Appellees’ motion to
dismiss for forum non conveniens, and remand the case to the trial court for further proceedings
consistent with this opinion.
GINA M. PALAFOX, Justice
July 13, 2018
Before McClure, C.J., Rodriguez, and Palafox, JJ.
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