Truong, Phu The and Truong, Mai v. Vuong, Chau Thanh and Vuong, Thu Nguyen--Appeal from 269th District Court of Harris County

Reversed and Remanded and Majority Memorandum and Concurring Memoran-dum Opinions filed May 1, 2003

Reversed and Remanded and Majority Memorandum and Concurring Memoran-dum Opinions filed May 1, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00435-CV

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PHU THE TRUONG AND MAI TRUONG, Appellants

V.

CHAU THANH VUONG AND THU NGUYEN VUONG, Appellees

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Cause No. 00-61957

C O N C U R R I N G M E M O R A N D U M O P I N I O N

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.CDallas 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.CDallas 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.CFort 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 508B09, 67 S. Ct. at 843. In the absence of such proof, there is no justification for a finding that the balance Astrongly@ favors dismissal. See Tullisv. Georgia-Pacific Corp., 45 S.W.3d 118, 132B33 (Tex. App.CFort 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 841B44 (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 782B83. 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 visa 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, 874B75 (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.CHouston [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 132B33; Sarieddine, 820 S.W.2d at 841B44. Therefore, the trial court abused its discretion by granting the Vuongs= motion to dismiss based on common law forum non conveniens.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Majority Memorandum and Concurring Memorandum Opinions filed May 1, 2003.

Panel consists of Justices Yates, Anderson, and Frost. (Anderson, J., majority)