Dow Chemical Co. v. Castro Alfaro

786 S.W.2d 674, 1990 WL 33528

• Court: Texas Supreme Court
• Decided: May 2, 1990
• Docket: C-7743
• Status: Published

Opinions

OPINION

RAY, Justice.

At issue in this cause is whether the statutory right to enforce a personal injury or wrongful death claim in the Texas courts precludes a trial court from dismissing the claim on the ground of forum non conveniens. The court of appeals held that Texas courts lack the authority to dismiss on the grounds of forum non conveniens. 751 S.W.2d 208. Because we conclude that the legislature has statutorily abolished the doctrine of forum non conveniens in suits brought under section 71.031 of the Texas Civil Practice and Remedies Code, we affirm the judgment of the court of appeals.

Domingo Castro Alfaro, a Costa Rican resident and employee of the Standard Fruit Company, and eighty-one other Costa Rican employees and their wives brought suit against Dow Chemical Company and Shell Oil Company. The employees claim that they suffered personal injuries as a result of exposure to dibromochloropro-pane (DBCP), a pesticide manufactured by Dow and Shell, which was allegedly furnished to Standard Fruit. The employees exposed to DBCP allegedly suffered several medical problems, including sterility.

Alfaro sued Dow and Shell in Harris County district court in April 1984. The amended petition alleged that the court had jurisdiction under article 4678 of the Revised Statutes.¹ Following an unsuccessful attempt to remove the suit to federal court, Dow and Shell contested the jurisdiction of the trial court almost three years after the filing of the suit, and contended in the alternative that the case should be dismissed under the doctrine of forum non conveniens. Despite a finding of jurisdiction, the trial court dismissed the case on the ground of forum non conveniens.

Section 71.031 of the Civil Practice and Remedies Code provides:

(a)An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country, if:

(1)a law of the foreign state or country or of this state gives a right to maintain an action for damages for the death or injury;

(2) the action is begun in this state within the time provided by the laws of this state for beginning the action; and

(3) in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.²

(b) All matters pertaining to procedure in the prosecution or maintenance of the action in the courts of this state are governed by the law of this state.

(c) The court shall apply the rules of substantive law that are appropriate under the facts of the case.

Tex.Civ.Prac. & Rem.Code Ann. § 71.031 (Vernon 1986). At issue is whether the language “may be enforced in the courts of this state” of Section 71.031(a) permits a trial court to relinquish jurisdiction under the doctrine of forum non conveniens.

The statutory predecessors of Section 71.031 have existed since 1913. The original law states “[t]hat whenever the death or personal injury of a citizen of this State or of a country having equal treaty rights with the United States on behalf of its citizens, has been or may be caused by a wrongful act, neglect or default ... such right of action may be enforced ... in the courts of this State_” Act of Apr. 8, 1913, ch. 161, 33d Leg., 1913 Tex.Gen.Laws 338, 338-39, repealed by Revised Statutes, § 2, 39th Leg., 1925 Tex.Rev.Civ.Stat. 2419. Another act was passed in 1917 to expand the right of action to citizens of the United States. Act of Mar. 30, 1917, ch. 156, 35th Leg., 1917 Tex.Gen.Laws 365, repealed by Revised Statutes, § 2, 39th Leg., 1925 Tex. Rev.Civ.Stat. 2419. The statute was codified in 1925 and amended in 1975. Revised Statutes, sec. 1, art. 4678, 35th Leg., 1925 Tex.Rev.Civ.Stat. 2, 1283, amended by Act of May 29, 1975, ch. 530, § 2, 64th Leg., 1975 Tex.Gen.Laws 1381,1382, repealed by Civil Practice and Remedies Code, ch. 959, § 9, 69th Leg., 1985 Tex.Gen.Laws 3242, 3322. The 1975 amendment allowed Texas courts to apply the law of the state of Texas in actions arising under old article 4678. The amendment responded to this court’s decision in Marmon v. Mustang Aviation, which held that the doctrine of lex loci delicti applied to old article 4678. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex.1968); see Gutierrez v. Collins, 583 S.W.2d 312, 317-18 n. 3 (Tex.1979).

Dow and Shell argued before this Court that the legislature did not intend to make section 71.031 a guarantee of an absolute right to enforce a suit in Texas brought under that provision. In his dissent, Justice Gonzalez agrees, concluding that the legislature could not have intended to preclude application of forum non conveniens to suits brought under the statute because “[fjorum non conveniens did not arrive upon the judicial landscape of this state until after the predecessors to section 71.-031 were enacted.” 786 S.W.2d 691. This conclusion is false. The doctrine of forum non conveniens appeared in Texas well before the enactment of article 4678 by the legislature in 1913.

I.

The doctrine of forum non conveniens arose from the doctrine of forum non competent in Scottish cases. See, e.g., Vernor v. Elvies, 6 Dict. of Dec. 4788 (1610); see also Barrett, The Doctrine of Forum Non Conveniens, 35 Calif.L.Rev. 380, 386-87 & n. 35 (1947). The Scottish courts recognized that the plea of forum non competent applied when to hear the case was not expedient for the administration of justice. In Longworth v. Hope, 3 Sess.Cas. (3d ser.) 1049, 1053 (1865), the court stated:

The next question is the question of forum non competent. Now the plea usually thus expressed does not mean that the forum is one in which it is wholly incompetent to deal with the question. The plea has received a wide signification, and is frequently stated in reference to cases in which the Court may consider it more proper for the ends of justice that the parties should seek their remedy in another forum.

Id.; see Barrett, supra, at 387, n. 35. By the end of the nineteenth century, English courts had “accepted the doctrine of forum non convenient as a means of preventing abuse of the court’s process when the plaintiff’s choice of forum is vexatious and works unnecessary hardship on the defendant.” Barrett, supra, at 388.

In 1929, Paxton Blair, a Wall Street lawyer, brought the term “forum non conve-niens” into American law with his article entitled, The Doctrine of Forum Non Convenient in Anglo-American Law. See generally, Blair, The Doctrine of Forum Non Convenient in Anglo-American Law, 29 Colum.L.Rev. 1 (1929). Although Blair found only three or four cases in which the American courts had used the term, he concluded:

Upon an examination of the American decisions illustrative of the doctrine of forum non convenient, it becomes apparent that the courts of this country have been for years applying the doctrine with such little consciousness of what they were doing as to remind one of Moliér’s M. Jourdain, who found he had been speaking prose all his life without knowing it.

Id. at 21-22. Blair cited hundreds of cases dismissing suits for the same reasons now employed under the doctrine of forum non conveniens. Id. Following the publication of Blair’s article, the United States Supreme Court applied the doctrine to suits in admiralty brought between aliens, Charter Shipping Co. v. Bowring, Jones, & Tidy, Ltd., 281 U.S. 515, 517, 50 S.Ct. 400, 401, 74 L.Ed. 1008 (1930); Canada Malting Co. v. Paterson S.S., Ltd., 285 U.S. 413, 422, 52 S.Ct. 413, 415, 76 L.Ed. 837 (1932); to cases involving the internal affairs of corporations, Rogers v. Guaranty Trust Co., 288 U.S. 123, 130, 181, 53 S.Ct. 295, 297, 298, 77 (1933); and to federal suits involving a state’s system for regulating the oil industry, Railroad Comm’n v. Rowan & Nichols Oil Co., 310 U.S. 573, 584, 60 S.Ct. 1021, 1025, 84 L.Ed. 1368 (1940). See Barrett, supra, at 395-96. By 1941, “the familiar doctrine of ‘forum non conveniens’ ... [was] firmly imbedded in our law.” Baltimore & O.R.R. v. Kepner, 314 U.S. 44, 55-56, 62 S.Ct. 6, 11-12, 86 L.Ed. 28 (1941) (Frankfurter, J., dissenting).

Texas courts applied the doctrine of forum non conveniens in several cases prior to the enactment of article 4678 in 1913. In 1890, this court in dicta recognized the power of a court to refuse to exercise jurisdiction on grounds essentially the same as those of forum non conveniens. See Morris v. Missouri Pac. Ry., 78 Tex. 17, 21, 14 S.W. 228, 230 (1890). In Morris, we stated:

We do not think the facts alleged show the action to be transitory. But, if so, it has been held in such actions, where the parties were non-residents and the cause of action originated beyond the limits of the state, these facts would justify the court in refusing to entertain jurisdiction. Railway Co. v. Miller, 19 Mich. 305. Jurisdiction is entertained in such cases only upon principles of comity, and not as a matter of right. Gardner v. Thomas, 14 Johns. 136; Wells, Juris. § 115.

Id. In Mexican National Railroad v. Jackson, 89 Tex. 107, 33 S.W. 857 (1896), this court discussed both the dissimilarity doctrine and the potentiality of docket backlog. With regard to the latter, we stated:

If our courts assume to adjust the rights of parties against those railroads, growing out of such facts as in this case, we will offer an invitation to all such persons who might prefer to resort to tribunals in which the rules of procedure are more certainly fixed, and the trial by jury secured, to seek the courts of this state to enforce their claims. Thus we would add to the already overburdened condition of our dockets in all the courts, and thereby make the settlement of rights originating outside the state, under the laws of a different government, a charge upon our own people.

Id., 89 Tex. at 112, 33 S.W. at 862. Finally, we made a statement closely resembling a current argument for forum non conve-niens:

If the facts showed that this [suit] was necessary in order to secure justice, and the laws were such as we could properly enforce, this consideration [docket backlog] would have but little weight; but we feel that it is entitled to be considered where the plaintiff chooses this jurisdiction as a matter of convenience, and not of necessity.

Id. (emphasis added).

In Southern Pacific Co. v. Graham, 12 Tex.Civ.App. 565, 34 S.W. 135 (1896, writ ref’d), the court stated that a district court could, in the exercise of its sound discretion, refuse to entertain jurisdiction in a case involving foreign parties. In Missouri, Kansas & Texas Railway v. Godair Commission Co., 39 Tex.Civ.App. 298, 87 S.W. 871 (1905, writ ref’d), the court stated:

Appellant’s first proposition ... is ... that all parties being nonresidents, and the injuries complained of having occurred outside of the state of Texas, the courts of this state are not bound to entertain jurisdiction. The language of this proposition implies that the state courts may entertain jurisdiction of causes in which all parties are nonresidents when the injuries complained of occurred outside of the state, though they are not bound to do so. This being true, the court in this case having entertained jurisdiction, and thus [having] determined the question of public policy in favor of entertaining jurisdiction, the appellant has no right to complain.

Id. 39 Tex.Civ.App. at 301; 87 S.W. at 872. Thus, although Justice Gonzalez is correct that the first reported case using the term “forum non conveniens” is Garrett v. Phillips Petroleum Co., 218 S.W.2d 238, 239 (Tex.Civ.App.—Amarillo 1949, writ dism’d), the doctrine itself was effectively established in Texas before the enactment of article 4678 by the legislature in 1913.

II.

We therefore must determine whether the legislature in 1913 statutorily abolished the doctrine of forum non conveniens in suits brought under article 4678 [now section 71.031].

Our interpretation of section 71.031 is controlled by this court’s refusal of writ of error in Allen v. Bass, 47 S.W.2d 426 (Tex.Civ.App.—El Paso 1932, writ ref’d). In Allen the court of civil appeals held that old article 4678 conferred an absolute right to maintain a properly brought suit in Texas courts. The suit in Allen involved a New Mexico plaintiff and defendant arising out of an accident occurring in New Mexico. The court of appeals reversed a dismissal granted by the trial court on grounds similar to those of forum non conveniens, holding that “article 4678 opens the courts of this state to citizens of a neighboring state and gives to them an absolute right to maintain a transitory action of the present nature and to try their cases in the courts of this state.” Id. at 427 (emphasis added).

The El Paso Court of Civil Appeals clearly addressed and rejected the doctrine of forum non conveniens in Allen. Discussing the existence of the doctrine prior to the 1913 and 1917 enactments of article 4678, the court stated:

Under the many authorities we have reviewed, both state and federal, we think it might be said that the courts of this state had a discretion in the matter of exercising jurisdiction where all parties were nonresidents of the state, and the cause of action arose in the state of the nonresidents.

Id. at 426 (emphasis added). Although the court did not specify the authorities it reviewed, it is clear from the Application for Writ of Error filed in this court that the Court of Civil Appeals reviewed two pre-1913 forum non conveniens cases — Morris v. Missouri Pacific Railway, supra, and Southern Pacific Co. v. Graham, supra. See Application for Writ of Error, Bass v. Allen, App. No. 18857 (filed April 7, 1932), at 2. The petitioner before this court in Allen summarized the case as follows:

Before the passage of any statute in Texas[,] trial courts had the discretion to refuse to entertain jurisdiction of a case founded on tort committed in another State by and on residents of the State in which the tort was committed.

Morris v. Ry. Co., supra.

Bowman v. Flint, supra.

In the case of Southern Pacific v. Graham the opinion reads in part as follows:

‘Had the District Court in the exercise of a sound discretion, refused to entertain jurisdiction of the case at all, this court would not have felt called upon to review its action.’

The Court of Civil Appeals in the instant case [Allen ] held that to be true but under Article 4678 this discretion no longer existed and that it was now obligatory on the district courts to accept jurisdiction and try these cases.

Id. at 2-3. The petitioner in Allen argued that the Court of Civil Appeals erred in construing the term “foreign state” in article 4678 to include a state of the union. Id. at 4. The petitioner in Allen also argued that the Court of Civil Appeals erred in applying forum non conveniens to a cause of action arising in another state in the union:

While it is perhaps just and right to open our courts for the trial of causes arising in foreign countries where the denial of a forum might mean the denial of his remedial rights, still no such just demand could be made by residents of sister States against a resident of his own State for a cause which can with more ease and economy and justice be tried in that forum.

Id. at 4. Asking that this court reverse the decision of the Court of Civil Appeals and affirm the judgment of the trial court dismissing the action, the petitioners in Allen quoted from Atchison, T. & S.F. Ry. Co. v. Weeks, 254 F. 513 (5th Cir.1918). Id. at 5. In Weeks, the United States Court of Appeals for the Fifth Circuit discussed several of the same rationales given today for the application of the doctrine of forum non conveniens:

Manifestly, there are many advantages in trying such a case where the cause of action arises. The law of the cause of action is the law of the place. It may be assumed that the courts of the state can more satisfactorily administer the laws of the state than can the courts of any other state. The expense incident to a trial would usually be materially less at the place of the tort than elsewhere. The imposition upon a state of the expense of maintaining courts to try causes in which the state has no interest would be difficult to justify. The maintenance of the judicial machinery involves no light burden. Many of the states, including Texas, have been unable to provide adequate machinery. No good reason could probably be made to appear why her overworked courts should be compelled to carry any part of the burdens of other states.

Id. at 518, cited in, Application for Writ of Error, Bass v. Allen, supra, at 5. Given these arguments and authorities, this court chose to refuse the Application for Writ of Error, thereby manifesting its approval of the decision of the Court of Civil Appeals in Allen v. Bass. Cf., Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 383-84, 110 S.W.2d 561, 565-66 (Tex.Comm’n App.1937, opinion adopted).

We conclude that the legislature has statutorily abolished the doctrine of forum non conveniens in suits brought under section 71.031. Accordingly, we affirm the judgment of the court of appeals, remanding the cause to the trial court for further proceedings.

HIGHTOWER and DOGGETT, JJ., file concurring opinions. PHILLIPS, C.J., and GONZALEZ, COOK and HECHT, JJ., file dissenting opinions.

1 . Although article 4678 was in effect at the time suit was originally brought, this cause is governed by section 71.031 of the Civil Practice and Remedies Code because no substantive change was intended by the legislature’s recodification. See Tex.Civ.Prac. & Rem.Code Ann. § 1.001(a) (Vernon Supp.1989).

2 . The United States and Costa Rica agreed to the following:

The citizens of the high contracting parties shall reciprocally receive and enjoy, full and perfect protection for their persons and property, and shall have free and open access to the courts of justice in the said countries respectively, for the prosecution and defense of their just rights; and they shall be at liberty to employ, in all cases, the advocates, attorneys, or agents of whatever description, whom they may think proper, and they shall enjoy in this respect the same rights and privileges therein as native citizens.

Treaty of Friendship, Commerce, and Navigation, July 10, 1851, United States-Costa Rica, art. VII, para. 2, 10 Stat. 916, 920, T.S. No, 62. Subsection (a)(3) requires the existence of similar treaty provisions before an action* by a citizen of a foreign country may be maintained under Section 71.031.