IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-1129

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In re Pirelli = Tire, L.L.C.,=20 Relator

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On Petition for Writ of = Mandamus

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Argued November=20 29, 2005

=20 Justice Johnson, = joined by=20 Chief Justice Jefferson, = dissenting.

=20 In Dow Chemical Co. v. Alfaro, 786 S.W.2d 674 (Tex. 1990), = this=20 Court considered whether by Texas Civil Practice and Remedies Code = section=20 71.031, the Legislature statutorily abolished the doctrine of forum = non=20 conveniens as to suits such as this. Section 71.031 provided:

(a) An=20 action for damages for the death or personal injury of a citizen of this = state,=20 of the United States, or of a foreign country may be enforced in the = courts of=20 this state, although the wrongful act, neglect, or default causing the = death or=20 injury takes place in a foreign state or country, if:

=20 (1) a law of the foreign state or country or of this state gives = a right=20 to maintain an action for damages for the death or injury;

(2)=20 the action is begun in this state within the time provided by the laws = of this=20 state for beginning the action; and

=20 (3) in the case of a citizen of a = foreign=20 country, the country has equal treaty rights with the United=20 States on behalf of its citizens.

(b) All=20 matters pertaining to procedure in the prosecution or maintenance of the = action=20 in the courts of this state are governed by the law of this state.

Tex. Civ. Prac. & Rem. = Code =A7=20 71.031. This Court held that it did. Alfaro, 786 S.W.2d at = 679.=20 This Court cited with approval the statement used by the court in Allen v. Bass, 47 S.W.2d 426, = 427 (Tex.=20 Civ. App.=97El Paso 1932, writ ref=92d) to the effect that the statutory language = provides an=20 absolute right for persons subject to the statute to try their cases in = the=20 courts of this State:

=20 Dow and Shell argued before this Court that the legislature did = not=20 intend to make section 71.031 a guarantee of an absolute right to = enforce a suit=20 in Texas=20 brought under that provision. . . .

. . .=20 .

=20 Our interpretation of section 71.031 is controlled by this = court=92s=20 refusal of writ of error in Allen v. Bass, 47 S.W.2d 426 (Tex. = Civ. App.=97El Paso 1932, writ ref=92d). In Allen the court of civil = appeals held that=20 old article 4678 conferred an absolute right to maintain a properly = brought suit=20 in Texas=20 courts. The suit in Allen involved a New=20 Mexico plaintiff and defendant arising out of an accident = occurring=20 in New = Mexico.=20 The court of appeals reversed a dismissal granted by the trial court on = grounds=20 similar to those of forum non conveniens, holding that =93article 4678 = opens the=20 courts of this state to citizens of a neighboring state and gives to = them an=20 absolute right to maintain a transitory action of the present nature and = to try=20 their cases in the courts of this state.=94

Alfaro, 786 = S.W.2d at 676,=20 678 (emphasis added).

=20 In consideration of and in response to Alfaro, the = Legislature=20 enacted section 71.051.[1] Subsection (a) applied to = claimants who=20 were not legal residents of the United States and = provided:

With=20 respect to a claimant who is not a legal resident of the United States, = if a=20 court of this state, on written motion of a party, finds that in the = interest of=20 justice an action to which this section applies would be more properly = heard in=20 a forum outside this state, the court may decline to exercise = jurisdiction under=20 the doctrine of forum non conveniens and may stay or dismiss the action = in whole=20 or in part on any conditions that may be just.

Act of May 27, 1997, = 75th Leg.=20 R.S., ch. 424, =A7 1, 1997 Tex. Gen. Laws = 1680,=20 repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, =A7 3.09, 2003 Tex. Gen. Laws 847 (former = Tex. Civ. Prac. & Rem.=20 Code =A7 = 71.051(a)).[2]

=20 In 2003, the Legislature amended section 71.051. The amendments, = in part,=20 repealed section 71.051(a) and amended subsection (b) so it = provided:

If a court=20 of this state, on written motion of a party, finds that in the interest = of=20 justice and for the convenience of the parties a claim or action to = which this=20 section applies would be more properly heard in a forum outside this = state, the=20 court shall decline to exercise jurisdiction under the doctrine of forum = non=20 conveniens and shall stay or dismiss the claim or action. In determining = whether=20 to grant a motion to stay or dismiss an action under the doctrine of = forum non=20 conveniens, the court shall consider whether:

(1) an=20 alternate forum exists in which the claim or action may be tried;

(2) = the alternate forum provides an adequate = remedy;

(3)=20 maintenance of the claim or action in the courts of this state would = work a=20 substantial injustice to the moving party;

(4)=20 the alternate forum, as a result of the submission of the parties or = otherwise,=20 can exercise jurisdiction over all the defendants properly joined to the = plaintiff=92s claim;

(5)=20 the balance of the private interests of the parties and the public = interest of=20 the state predominate in favor of the claim or action being brought in = an=20 alternate forum, which shall include consideration of the extent to = which an=20 injury or death resulted from acts or omissions that occurred in this = state;=20 and

(6)=20 the stay or dismissal would not result in unreasonable duplication or=20 proliferation of litigation.

Tex. Civ. Prac. & Rem. = Code =A7=20 71.051(b).

=20 The Court acknowledges that former section 71.051(a) was written = in=20 permissive terms: =93the court may decline to exercise = jurisdiction under=20 the doctrine of forum non conveniens and may stay or dismiss the = action=20 in whole or in part on any conditions that may be just.=94 ___ S.W.3d at = ___;=20 see Ross v. Tide Water Oil Co., 145 S.W.2d 1089, 1092 (Tex. 1941) = (noting=20 that the word =93may=94 in a statute =93ordinarily connotes discretion = or permission;=20 and it will not be treated as a word of command unless there is = something in the=20 context or subject matter of the act to indicate that it was used in = that=20 sense=94). The 2003 amendments to section 71.051 changed several aspects = of the=20 statute, including incorporating the word =93shall.=94 By 2003, the = Legislature had=20 enacted Texas Government Code section 311.016. According to section = 311.016(2),=20 a duty is imposed when the word =93shall=94 is used in a statute. Thus, = the 2003=20 amendments to section 71.051 changed the statute from granting a = permissive=20 power to the trial court in regard to forum non conveniens = decisions=20 under 71.051(a) to imposing a duty to act when certain findings are made = in=20 regard to specified factors.[3] There is no indication in = section 71.051=20 that =93may,=94 as used in section 71.051(a), was used to command, = direct action by,=20 or impose a duty to act on the part of the trial court,[4] however, and the Court does not = so=20 determine.

=20 When Pirelli filed its forum non conveniens motion, the = trial=20 court was faced with two applicable statutes. Section 71.031 gave the = Arans [5] an absolute right to bring and = try their=20 case in Texas.=20 See Alfaro, 786 S.W.2d at 676, 678-79. Section 71.051(a) = permitted the=20 trial court to refuse to exercise jurisdiction under certain = circumstances.=20 Section 71.051(a) required the trial court to make several decisions = when=20 determining how to rule on Pirelli=92s motion. The decisions included = evaluating=20 evidence presented by the parties, resolving controverted factual matters (if any), and = considering and=20 applying the law to the facts as the court found them to be.

=20 When the trial court has discretion to grant or deny relief based = on its=20 factual determinations, we review the trial court=92s actions for abuse = of=20 discretion. See Bocquet v. Herring, = 972 S.W.2d=20 19, 20-21 (Tex. 1998) (noting that the abuse of discretion standard of = review as=20 to a trial court=92s factual determinations applies when a trial court = has=20 discretion either to grant or deny relief based on its factual = determinations).=20 The abuse of discretion standard is especially appropriate when the = trial court=20 must weigh competing policy considerations and balance interests in = determining=20 whether to grant relief, as it did in this instance. See Gen. Tire, = Inc. v.=20 Kepple, 970 S.W.2d 520, 526 (Tex. 1998). = When no=20 findings of fact or conclusions of law are filed, the trial court = judgment is to=20 be upheld on any legal theory supported by the record. See Davis v. Huey, 571 S.W.2d 859, 862 = (Tex. 1978); Seaman v. Seaman, 425 S.W.2d = 339=20 (Tex. 1968).=20 If the record contains legally sufficient evidence both against and in = support=20 of the trial court=92s decision then mandamus will not lie because = weighing=20 conflicting evidence is a trial court function. See West v. Solito, 563 S.W.2d 240, 245 (Tex. 1978) = (=93[A]n=20 appellate court may not deal with disputed areas of fact in a mandamus=20 proceeding.=94). The abuse of discretion standard is not =93whether, in = the opinion=20 of the reviewing court, the facts present an appropriate case for the = trial=20 court=92s action.=94 Downer v. Aquamarine Operators, Inc., 701 = S.W.2d 238,=20 241 (Tex.=20 1985).

=20 Section 71.051(a) plainly required the trial court to = affirmatively find=20 that in the interest of justice a forum outside Texas would be more proper for the = action=20 before the case could be dismissed or stayed. If the trial court did not = make=20 such a finding, the statute did not authorize the court to dismiss or = stay the=20 action. Even if the trial court made such a finding, the statute did not = command=20 or impose a duty on the trial court to dismiss or stay the action; it = permitted=20 a dismissal or stay. See Ross, 145 S.W.2d at 1092 (noting = that=20 =93may=94 is not a word of command). This accords with the traditional = view of=20 forum non conveniens: its purpose is to permit a trial court to = decline=20 exercising jurisdiction over a case when the case should more properly = be=20 brought in another forum. See Alfaro, 786 S.W.2d at 676-77.

=20 Pirelli does not deny that part of its burden in showing =93in = the interest=20 of justice a forum outside Texas would be more proper for the = action=94 was=20 to prove and obtain a finding in the trial court that an adequate = alternative=20 forum existed.[6] To the contrary, it joins issue = on the=20 question. When a party with the burden of proof challenges the factfinder=92s failure to find in its favor, we = treat the=20 absence of the finding as a refusal by the factfinder=20 to make the finding. See Sterner v. Marathon Oil Co., 767 S.W.2d = 686, 690=20 (Tex. 1989).=20 Because the trial court did not grant Pirelli=92s motion and because we = may not=20 resolve factual disputes or reweigh evidence presented to the trial = court,=20 Pirelli should prevail on the issue only if the evidence is conclusive = that=20 Mexico is an adequate = alternative=20 forum. Id. Evidence in the record, = however, is=20 not conclusive as to that question.

In = analyzing=20 the issue of an adequate alternative forum, the Court says the Arans failed to affirmatively state that = prescriptive rights=20 have not accrued in the Mexican forum and posits that =93if they have = not, then=20 limitations would not appear to be an obstacle to the Mexican forum in = the first=20 place.=94 But those matters were for the trial court to consider and = weigh in=20 exercising its discretion. Both Pirelli and the Arans=20 submitted evidence on the question of whether Mexican courts would = provide an=20 adequate alternative forum. The filings included expert affidavits,[7] copies of Mexican statutes, and = copies of=20 decisions in other jurisdictions. The Arans = submitted=20 an affidavit from Professor Hans Baade = questioning,=20 among other matters, the extent to which Mexican statutes of limitations = can be=20 waived by Pirelli, even though Pirelli stipulated for purposes of its = motion=20 that it would submit to Mexican jurisdiction and waive any limitations = defenses.=20 Pirelli submitted documents that it contends shed doubt on the evidence = relied=20 upon by the Arans. The question of how much = weight, if=20 any, to give competing affidavits and evidence is a determination = generally=20 entrusted to the trial court in matters such as this. See Bocquet, 972 S.W.2d at 20-21. When the trial = court does=20 not issue findings of fact, reviewing courts should presume that the = trial court=20 resolved all factual disputes in favor of its determination. See BMC = Software=20 v. Marchand, 83 S.W.3d 789, 795 = (Tex. 2002) (reviewing trial court ruling on = special=20 appearance); Worford v. = Stamper, 801=20 S.W.2d 108, 109 (Tex. 1990) (same). The Court = evaluates=20 the record according to the factors explicated in Gulf Oil Corp. v.=20 Gilbert, 330 U.S. 501 (1947). The Court determines, in part, that = (1)=20 Pirelli demonstrated Mexico is an adequate alternative forum, (2) =93on = balance=94=20 the private interests that are implicated favor the Mexican forum, and = (3) the=20 happenstance that the truck was in Texas for eleven days before it was = sold and=20 imported to Mexico is insufficient to provide Texas with any interest in = the=20 case. The Court concludes that the Gulf Oil factors clearly and=20 overwhelmingly favor a Mexican forum for resolving the dispute. That = assessment=20 is the predicate determination required by section 71.051(a)=97=93in the = interest of=20 justice an action to which this section applies would be more properly = heard in=20 a forum outside this state=94=97necessary for moving to the question of = whether the=20 case =93may=94 be dismissed or abated under the statute=92s = provisions.

=20 I do not disagree with the Court=92s assessment that the evidence = and the=20 record reflect a clear, strong balance in favor of dismissing or staying = the=20 case on the basis of forum non conveniens. But the =93strong = balance=94 or=20 even a =93clear and overwhelming=94 balance of the Gulf Oil = factors in favor=20 of dismissing or staying the case does not overcome at least two = considerations.=20 First, balancing of the interests involved, including the private = interests, is=20 a function of the trial court to which we should defer unless there is = no=20 evidence in the record supporting or tending to support the trial = court=92s=20 decision. See Furr=92s = Supermarkets,=20 Inc. v. Bethune, 53 S.W.3d 375, 378 (Tex.=20 2001) (recognizing that there is no abuse of discretion if some evidence = supports the trial court=92s decision); Womack v. Berry, 291 = S.W.2d 677,=20 682-83 (Tex.=20 1956) (orig. proceeding). Second, the Court=92s determination that a = =93strong=94 or=20 =93clear and overwhelming=94 balance of Gulf Oil factors favors = dismissing or=20 staying the case does not override the permissive discretion afforded = the trial=20 court by section 71.051(a) in light of section 71.031=92s specific = provision=20 allowing suits such as this to be maintained in Texas. Quite simply, section = 71.051(a)=20 permitted, but did not command, the trial court to refuse to exercise = its=20 jurisdiction granted by section 71.031 even if the case would more = properly be=20 heard in Mexico.=20 In analyzing the trial = court=92s=20 decision not to dismiss or stay this case, the Court compares the trial = court=92s=20 decision not to dismiss the case with a trial court=92s taking = affirmative action=20 to consolidate twenty cases for trial under a rule of procedure = permitting=20 consolidation. See In re Van Waters & Rogers, Inc., 145 = S.W.3d 203=20 (Tex. 2004). But there is a difference between the trial court=92s = actions in=20 Van Waters and the trial court=92s actions in this case. In = Van=20 Waters, the Court evaluated the evidence and determined that the = trial court=20 abused its discretion by taking affirmative action to alter the usual = process by=20 which each individual lawsuit would be tried to a separate jury. = Id. at=20 211. In the case before us, however, the trial court did not take = affirmative=20 action to alter a status that was, and for decades had been, authorized = by=20 statute: the filing and trying of a suit such as this in Texas.[8] The trial court here simply = decided to=20 exercise the jurisdiction vested in it by section 71.031. To make Van = Waters a valid comparison to this case, the trial court in Van = Waters=20 would have had to refuse to consolidate cases for trial, then this Court = would=20 have had to determine on application for mandamus that the refusal was = an abuse=20 of discretion. The Court=92s comparison of this case to Van = Waters does not=20 persuade me that mandamus relief is proper here.

=20 I agree with the Court that even when discretion is lodged in a = trial=20 court by use of the term =93may=94 in a statute, there are circumstances = in which=20 the trial court has no room for exercising discretion. If all the facts = and=20 circumstances to be considered compel and admit of only one decision, = there is=20 no fact or circumstance in the record supporting or tending to support a = contrary decision and the legal rights of the parties will not be = prejudiced=20 thereby, then there is no discretion to be exercised. See In re Ethyl = Corp., 975 S.W.2d 606, 610 (Tex. 1998) (citing Womack, = 291S.W.2d at=20 683). And exercise of permissive discretion granted a trial court by a = statute=92s=20 (or procedural rule=92s) use of the word =93may=94 could not be = countenanced if the=20 trial court were to exercise its discretion for a wholly improper or = illegal=20 reason such as, for example, the race or sex of a party. But this case = is not=20 one in which the record contains =93no fact or circumstance supporting = or tending=20 to support a contrary conclusion.=94 See Womack, 291 S.W.2d at = 683. Nor is=20 it one in which the record reflects that the trial court exercised its=20 discretion for an improper or illegal reason. Thus, the trial court=92s = decision=20 pursuant to the permissive language of section 71.051(a) should not be = subjected=20 to mandamus relief. See Pat Walker & Co. v. Johnson, 623 = S.W.2d 306,=20 309 (Tex. 1981) (denying mandamus relief under discretionary former Rule = of=20 Civil Procedure 21c which provided that a court of appeals =93may=94 = grant an=20 extension of time for filing a statement of facts).

=20 In short, we have said that the doctrine of forum non = conveniens=20 prevents a court from being compelled to hear a case over which it has=20 jurisdiction. See In re Smith Barney, Inc., 975 S.W.2d 593, 598 = (Tex.=20 1998). The Legislature did just that in section 71.051(a): it prevented = the=20 trial court from being compelled to hear a case even if it determined = that in=20 the interest of justice another forum would be more proper. The Court = now=20 directs the trial court to proceed in the opposite direction: to = not hear=20 a case over which the trial court had jurisdiction although the trial = court=20 refused to stay or dismiss the case as the Legislature gave it = permission to=20 do.

=20 If this case were before us under the current version of section = 71.051=20 which imposes a duty on the trial court to dismiss or stay a case on = forum=20 non conveniens principles under certain circumstances, I might well = be of a=20 different view. But it is not. The trial court=92s decision to exercise=20 jurisdiction specifically provided for by one statute and not withdrawn = by=20 another was not arbitrary, was not unreasonable, nor was it without = reference to=20 guiding principles. Accordingly, I would hold that its decision was not = an abuse=20 of discretion.

=20 I would not grant relief directing the trial court to dismiss or = stay the=20 case. Because the Court does, I dissent.[9]

=20 =20 =20 =20 =20 =20 _________________________________________

=20 =20 =20 =20 =20 =20 Phil Johnson

=20 =20 =20 =20 =20 =20 Justice

OPINION DELIVERED: November 2, 2007

^[1]=20 Carl Christopher Scherz, Comment, Section = 71.051 of=20 the Texas Civil Practice and Remedies = Code=97The Texas Legislature=92s Answer to = Alfaro:=20 Forum Non Conveniens in Personal Injury and Wrongful Death = Litigation, 46=20 Baylor L. Rev. 99, 101, = 106=20 (1994).

^[2]=20 Further references to particular sections of the Civil Practice and = Remedies=20 Code, unless specifically noted otherwise, will be to the statutory = language=20 applicable to this case even though the statutes may have been = subsequently=20 amended.

^[3]=20 The concurrence asks where it would all end if we defer to the trial = court=92s=20 discretion in this case. The answer is, where the Legislature says it = ends,=20 subject to constitutional limitations on the Legislature=92s power. The = end may=20 have come closer with the 2003 amendments to section 71.051.

^[4]=20 In construing the language of a statute our objective is to determine = and give=20 effect to the Legislature=92s intent. McIntyre v. Ramirez, 109 = S.W.3d 741,=20 745 (Tex. 2003). We do so by giving effect to the Legislature=92s intent = as=20 expressed by the plain and common meaning of the statute=92s words, = State v.=20 Shumake, 199 S.W.3d 279, 284 (Tex. = 2006), or by=20 use of definitions provided by the Legislature, see, e.g., Tex. Gov=92t Code =A7=A7 = 311.016, 312.002,=20 unless a contrary intention is apparent from the context, Taylor v. = Firemen=92s=20 and Policemen=92s Civil Service Commission of City of Lubbock, 616 = S.W.2d 187,=20 189 (Tex. 1981), or unless such a construction leads to absurd results. = Univ.=20 of Tex. S.W. Med. Ctr. v. Loutzenhiser, = 140 S.W.3d=20 351, 356 (Tex. 2004).

^[5]=20 As does the Court, I will refer collectively to the plaintiffs as =93the = Arans.=94

^[6]=20 If analysis of the findings required of the trial court were not to be = based on=20 factors used by the Court, but on analysis of the whole of the phrase = =93in the=20 interest of justice a forum outside Texas would be more proper for the = action=94=20 as the concurrence asserts, the applicable review process and my = conclusions=20 would not change. The standard of review, evidentiary requirements, = deference to=20 the trial court=92s exercise of discretion, and outcome of the analysis = would be=20 the same.

^[7]=20 Additional affidavits were submitted by both the Arans=20 and Pirelli after oral arguments in this court. I have not considered = those=20 because they were not before the trial court when it made its decision. = See=20 In re Bristol-Meyers Squibb Co., 975 S.W.2d 601, 605 (Tex. = 1998).

^[8]=20 =93The statutory predecessors of Section 71.031 have existed since = 1913.=94=20 Alfaro, 786 S.W.2d at 675.

^[9]=20 The Court does not reach Pirelli=92s contention that the trial court = abused its=20 discretion in refusing to apply the law of Mexico. I would=20 reach the issue and hold that Pirelli=92s appellate remedy is adequate = to address=20 the choice-of-law question. In re Prudential Ins. Co. of Am., 148 = S.W.3d=20 124, 136 (Tex. 2004).