Ivan Jones, and his adult children, Nicole Wein, Megan Jones and Carla Jones; Beverly McCarthy, and her adult children, Tracy Gmuer, Justin McCarthy, Clair West, Paul McCarthy, Mary McCarthy and Kevin McCarthy; Freida Muhlberger; et al. v. Raytheon Aircraft Services, Inc., a subsidiary of Raytheon, and Beech Aircraft Corporation--Appeal from 57th Judicial District Court of Bexar County

DISSENTING OPINION

No. 04-02-00279-CV

Ivan JONES, et al.,

Appellants

v.

RAYTHEON AIRCRAFT SERVICES, INC., a subsidiary of Raytheon,

and Beech Aircraft Corporation,

Appellees

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 97-CI-04114

Honorable David A. Berchelmann Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Dissenting opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: August 13, 2003

I must respectfully dissent. I believe the plain language of the forum non conveniens statute, which states "an action . . . would be more properly heard in a forum outside this state," necessarily means that the alternate forum be one in which the plaintiff is authorized to pursue its claim against the alleged wrongdoer. Webster's Dictionary defines "action" as a legal proceeding by which one demands or enforces one's right in a court of justice. Webster's Third New International Dictionary 21 (1981). "Forum" is defined as the particular court before which a case can be tried. Id. at 896. Here, it is undisputed that no tort actions are allowed in New Zealand; therefore, I believe there is no alternate forum in which this action can be heard. Further, a review of the legislative history of the statute, the case law subsequent to the enactment of the statute, and a recent amendment to the statute convinces me that it was the legislative intent that for an "action" to be "heard" in a "forum outside this state" means a forum where the plaintiff is allowed to bring the "action" against the alleged tortfeasor.

As the majority points out, Fred Baron, one of the drafters of the statute, appeared before the Senate Economic Development Committee in support of the bill. In addition to the comments the majority quotes, Mr. Baron further explained, "Well I think justice encompasses a fundamental fairness to the parties and would permit a party to be able to prosecute a lawsuit without . . . political interference. And if it turns out that the alternative forum in another country or another jurisdiction would not permit that individual to do so then the interest of justice would require that it be continued to be handled in Texas." (1) (Emphasis added.) It is undisputed that a plaintiff may not prosecute a negligence lawsuit, such as this one, in New Zealand because that system does not allow such suits.

Since the enactment of the forum non conveniens statute, the Fort Worth Court of Appeals held that the factors enumerated in subsection (b) of section 71.051 were instructive in a determination of whether a trial court should dismiss an action under subsection (a). See Baker v. Bell Helicopter Textron, Inc., 985 S.W.2d 272, 277 (Tex. App.--Fort Worth 1999, pet. denied). One of these factors is whether an alternate forum exists in which the claim or action may be tried. Id.

The recent amendment of section 71.051 lends support to the holding in Baker. The Legislature has enacted "An Act Relating to Reform of Certain Procedures and Remedies in Civil Actions," which will be effective September 1, 2003. (2) This reform was enacted out of a concern for the "environment of excessive litigation," in Texas and "to address and correct problems that currently impair the fairness and efficiency of our court system." (3) As part of the reform, section 71.051was amended to remove any distinction between plaintiffs who are legal residents of the United States and plaintiffs who are not legal residents. Subsection (a) of section 71.051 has now been repealed, and subsection (b) amended to provide that "[i]f a court of this state . . . finds that in the interest of justice and for the convenience of the parties a claim or action to which this section applies would be more properly heard in a forum outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action." (4) The six factors in the current subsection (b) that a trial court may consider in determining whether to grant a motion to dismiss an action under the doctrine of forum non conveniens remain unchanged. (5) One factor to consider is whether the claim or action "may be tried" in the alternate forum. (6)

The language of the statute, the statements before the Senate committee, as well as the holding in Baker, envision a forum in which the plaintiff's claim is tried and its grievance against the wrongdoer is heard. There is no dispute here that Jones's action against Beech and Raytheon cannot be "heard" or "tried" in New Zealand. For that reason, I believe the trial court erred in dismissing Jones's claims under the forum non conveniens statute.

Sandee Bryan Marion, Justice

1. Section 71.051 Forum Non Conveniens: Hearing on Tex. S.B. 2 Before the Senate Econ. Dev. Comm., 73rd Leg., R.S. 11 (Jan. 26, 1993) (transcript available from Senate Staff Services Office).

2. Act of June 1, 2003, 78th Leg., R.S., Tex. H.B. 4, art. 3, 3.04 (Text available at http://www.capitol.state.tx.us).

3. House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 4, 78th Leg., R.S. 1 (2003).

4. Act of June 1, 2003, 78th Leg., R.S., Tex. H.B. 4, art. 3, 3.04 (Text available at http://www.capitol.state.tx.us).

5. Id.

6. Id.; see also Act of Mar. 4, 1993, 73d Leg., Ch. 4, 1993 Tex. Gen. Laws 10 (amended 1997).