Kevin Wade and Sheila Luster v. Shane Murphy and Denise Murphy--Appeal from 211th District Court of Denton County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 2nd District Court of Appeals » 2003 » Kevin Wade and Sheila Luster v. Shane Murphy and Denise Murphy--Appeal from 211th District Court of Denton County

State: Texas

Court: Texas Northern District Court

Docket No: 02-03-00204-CV

Case Date: 12/31/2003

Plaintiff: Kevin Wade and Sheila Luster

Defendant: Shane Murphy and Denise Murphy--Appeal from 211th District Court of Denton County

Preview:In Re Western Aircraft, Inc. and Nozaki America, Inc.,
Relators--Appeal from 365th Judicial District Court of
Maverick County
MAJORITY | MAJORITY
CONCURRING OPINION
No. 04-99-00001-CV
(consolidated with 04-99-00165-CV)
IN RE WESTERN AIRCRAFT, INC.
and
In re Nozaki America, Inc.,
Relators
From the 365th Judicial District Court, Maverick County, Texas
Trial Court No. 96-11-14123-CV & 97-10-14819-CV
Honorable Amado Abascal, III, Judge Presiding
Opinion by: Alma L. L pez, Justice
Concurring opinion by: Paul W. Green, Justice
Sitting: Alma L. L pez, Justice
Paul W. Green, Justice
Karen Angelini, Justice
Delivered and Filed: June 23, 1999
I concur in the outcome, but only very reluctantly. My concern is that relators actually have no adequate remedy by
appeal.
In this mandamus action, the majority likens a forum non conveniens denial to a venue ruling. And the supreme court
has repeatedly told us that the denial of motion to transfer venue is merely an incidental trial ruling which, if
erroneous, is correctable on appeal. But see In re Masonite Corp., No. 97-0884, 1999 WL 401432 (Tex. June 17,
1999). But when it is asserted that the proper forum is a foreign country, a trial court's erroneous denial of a motion to
dismiss has much broader implications than a venue ruling. Appeal cannot be an adequate remedy when the case
should not have to be tried at all.
When it is clear this country has no legitimate connection to events occurring in a foreign country, our courts should
decline to accept jurisdiction of cases that arise out of those events.(1) There are virtually no facts in this case that
favor invoking the jurisdiction of the federal or state courts in this country. A Mexican commercial airliner, whose
pilot and passengers were all Mexican citizens, crashed in Mexico while on a flight between two Mexican cities. All
the plaintiffs are Mexican citizens and all the physical evidence and witnesses are located in Mexico. Relators are
involved only to the extent that one is the owner and lessor of the aircraft and the other brokered the lease of the
aircraft to the Mexican operator. Neither relator has its principal place of business in Texas.
In light of the above, relators make a good case that it was an abuse of discretion for the trial court to refuse to grant
the motion to dismiss. It is fundamentally unfair to require these relators to defend themselves in a trial, even if
successful. To have to wait for an appellate remedy simply compounds the unfairness. It is also unfair to the State and
those litigants who rightfully seek relief in the Maverick County courts that scarce court resources will be needlessly
preempted, and to those hard working citizen-jurors of Maverick County who will be required to sit through a lengthy
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and complex case that has no relationship at all to their community or their country.
Without relief, relators will also be subject to extraordinary difficulty and undue expense associated with trying to
prepare a case for trial in this country in connection with events that occurred in another country. While it is conceded
that some cases may go to trial under these circumstances, I daresay those cases do not involve matters and issues as
remote to the forum as exist in this case.
Nonetheless, the legislature has not provided an interlocutory appeal for the denial of a forum non conveniens motion
to dismiss; mandamus is the only possible avenue of interlocutory relief. And because the supreme court has indicated
that in mandamus actions forum non conveniens cases should be treated like venue cases, the majority denies relief on
the basis that there is an adequate remedy by appeal.
I concur in the majority's ruling only because I feel constrained by what appears to be the supreme court's intent on the
issue. If relief is to be afforded to these relators or future litigants facing similar facts, the supreme court or the
legislature will have to provide the mechanism.
PAUL W. GREEN
JUSTICE
PUBLISH
1. As Justice Hecht has noted: "The rule of forum non conveniens, properly used, does not prohibit a court from
entertaining a case it ought to hear. Rather, it protects courts from being compelled to hear cases when doing so would
be fundamentally unfair to the defendants or the public or both." In re Smith Barney, Inc., 975 S.W.2d 593, 598 (Tex.
1998)(quoting from his dissent in Dow Chemical Co. v. Castro Alfaro, 786 S.W.2d 674, 707 (Tex. 1990)).
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