in Re Ford Motor Company

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In re FORD MOTOR COMPANY, Relator.

No. 12-0957.

Supreme Court of Texas.

Decided July 3, 2014.

Rehearing Denied Oct. 3, 2014.

442 S.W.3d 265

Argued Dec. 3, 2013.

that he was acting in that capacity in providing security for the Nightclub. Nor has Peña ever contended or demonstrated that GCS and Pharr Entertainment were engaged in a joint enterprise or were alter egos of each other.

The court of appeals also noted the testimony of Nightclub security guard Javier Gallegos, who stated that he was paid by “Graham Central Station.” Though he did not specifically reference “Graham Central Station, Inc.” or “Pharr Entertainment Complex, L.L.C. d/b/a Graham Central Station,” the court of appeals concluded the trial court could have reasonably inferred that Gallegos was referring to GCS. We disagree. Given the lack of specificity in this testimony, such an inference would violate the equal inference rule, under which a factfinder “may not reasonably infer an ultimate fact from meager circumstantial evidence which could give rise to any number of inferences, none more probable than another.” Hancock v. Variyam, 400 S.W.3d 59, 70-71 (Tex. 2013) (citation and internal quotation marks omitted). Nothing in Gallegos‘s testimony makes it more likely that he was referring to GCS, as opposed to Pharr Entertainment, when identifying who paid him for his security services at the Nightclub.

Finally, the court of appeals concluded that the trial court was “free to disbelieve” the testimony of Mark Threadgill, who testified as the corporate representative of GCS that: GCS had no relationship with or ownership interest in Pharr Entertainment; GCS had no role in the management of Pharr Entertainment; Pharr Entertainment, not GCS, provided security for the Nightclub; and Pharr Entertainment, not GCS, owned the Nightclub. But GCS did not have the burden to prove that it did not own the Nightclub; rather, Peña bore the burden to prove that GCS did own the Nightclub and in turn owed him a duty of care. Even ignoring Threadgill‘s testimony in its entirety, Peña failed to adduce any evidence to support that allegation.

In sum, we hold that the evidence supporting a finding that GCS owned the Nightclub was legally insufficient. On the contrary, the trial evidence supported the opрosite conclusion—that Pharr Entertainment actually owned and operated the Nightclub. The absence of evidence that GCS owned the Nightclub and in turn owed a duty to Peña under Timberwalk is fatal to his claim, and we need not reach the issue of whether legally sufficient evidence supported the trial court‘s award of damages. Accordingly, we grant GCS‘s petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and render judgment in GCS‘s favor. See TEX. R. APP. P. 59.1.

Larry W. Lawrence, Michael Lawrence, Lawrence Law Firm, Austin TX, Gregory Lamar Gowan, Gowan Elizondo, L.L.P., Bradford Parker Klager, Douglas A. Allison, Law Offices of Douglas A. Allison, Corpus Christi TX, Richard Harley Grafton, Thomas M. Bullion III, Germer Gertz Beaman & Brown, LLP, Austin TX, for Real Party in Interest.

Alison Kennamer, Jaime A. Saenz, Colvin, Chaney, Saenz & Rodriguez L.L.P., Brownsville TX, Gregory G. Garre, Michael E. Bern, Latham & Watkins LLP, Washington DC, Michael W. Eady, Wade Caven Crosnoe, Thompson Coe Cousins & Irons, L.L.P., Austin TX, for Relator.

Justice WILLETT delivered the opinion of the Court, in which Chief Justice HECHT, Justice GREEN, Justice GUZMAN, and Justice LEHRMANN joined.

This case requires us to interpret the definition of “plaintiff” in the Texas-resident exception to the forum non conveniens statute. A defendant estate was sued in Texas regarding a Mexican decedent‘s alleged responsibility for a car accident in Mexico. The estate filed a third-party claim against Ford. Wrongful-death beneficiaries—some of whom are legal residents of Texas—intervened and also filed claims against Ford. Ford moved to dismiss under forum non conveniens, and the trial court denied the motion. Ford moved for mandamus relief, which the court of appeals denied, concluding that the decedent‘s beneficiaries could lay hold of the Texas-resident exception to forum non conveniens. The exception allows plaintiffs who are legal residents of Texas to anchor a case in a Texas forum even if forum non conveniens would otherwise favor dismissal. We must determine whether the intervening wrongful-death beneficiaries are “plaintiffs” within the meaning of the exception. We agree with the court of appeals that the wrongful-death beneficiaries are distinct plaintiffs that can rely on the Texas-resident exception. Accordingly, we deny mandamus relief.

I. Background

This case arises from a fatal single-car accident. Juan Tueme Mendez, his brother Cesar Tueme Mendez, and two other passengers were traveling in a Ford Explorer in the Mexican state of Nuevo Leon when the left rear tire burst and the vehicle careened off the road. Juan (the driver) was injured, and Cesar (the passenger) was killed.

Juan, who is not a legal resident of Texas, sued his deceased brother‘s estate in Hidalgo County, where Cesar‘s estate was being administered.¹ Juan alleged in his petition that Cesar had failed to properly maintain the vehicle and the tires. Cesar‘s estate in turn filed a third-party claim against Ford and Michelin,² alleging defective design and negligence. The estate‘s petition sought survival damages for Cesar‘s pre-death pain and suffering, plus the costs of his funeral and burial.

On the same day, Yuri Tueme, the estate‘s administrator and Cesar‘s daughter, and two others filed their own claims against Ford and Michelin as wrongful-death beneficiaries. Soon after, Cesar‘s minor daughter J.T., with her mother Melva Uranga acting as next friend and guardian, also intervened in the lawsuit as a wrongful-death beneficiary of Cesar, asserting claims against Ford and Michelin. The intervening claims mirrored the theories of liability in the estate‘s claims, but the intervenors alleged different damages from the estate. The intervening wrongful-death beneficiaries sought damages allowed for wrongful death, such as emotional pain and suffering, loss of consortium, loss of society, loss of support, and so on. Ford does not seem to dispute that Yuri, J.T., and Uranga are legal residents of Texas.³ Several months later, Juan amended his petition to add Ford as a defendant in his personal-injury claim. Ford moved to dismiss under forum non conveniens. Following a hearing, the trial court denied the motion without explanation.

Ford filed a petition for writ of mandamus in the Thirteenth Court of Appeals. Ford argued that the trial court had abused its discretion in denying the motion to dismiss and that Ford had no adequate remedy by appeal. Specifically, Ford contended that the intervening beneficiaries are not “plaintiffs” within the meaning of the Texas-resident exception. Thus, the forum non conveniens factors would apply, and our decision in In re Pirelli Tire, L.L.C.⁴ would favor dismissal.

The court of appeals denied relief.⁵ The court agreed that a refusal to dismiss on forum non conveniens grounds could not be adequately remedied by appeal. However, the court held that the wrongful-death beneficiaries are plaintiffs that can take advantage of the Texas-resident exception. Since at least one of the beneficiaries is a legal resident of Texas, the court of appeals concluded that the trial court did not abuse its discretion in denying Ford‘s motion to dismiss. We agree.

II. Discussion

Mandamus relief is only proper when the trial court abused its discretion and the relator lacks an adequate remedy by appeal.⁶ We note at the outset that Ford does not have an adequate remedy by appeal. We have held that no adequate remedy by appeal can rectify an erroneous denial of a forum non conveniens motion.⁷ Neither party questions the propriety of this holding.

The sole issue before us is whether the trial court abused its discretion by denying Ford‘s motion. “[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ.”⁸ We conclude, however, that the trial court did not misinterpret the statute at issue.

A. The Texas-resident exception allows plaintiffs who are legal residents of Texas to keep their cases in the state.

The Legislature has codified the common-law doctrine of forum non conveniens as follows:

If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties a claim оr 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.⁹

The statute then lists six factors that courts must consider in determining whether to stay or dismiss under forum non conveniens.¹⁰

In order to ensure access to Texas courts for Texas plaintiffs, the Legislature created an exception to the forum non conveniens rule. The Texas-resident exception reads:

The court may not stay or dismiss a plaintiff‘s claim under Subsection (b) if the plaintiff is a legal resident of this state. If an action involves both plaintiffs who are legal residents of this state and plaintiffs who are not, the court may not stay or dismiss the action under Subsection (b) if the plaintiffs who are legal residents of this state are properly joined in the action and the action arose out of a single occurrence.¹¹

The formula is simple: plaintiff + legal residence = right to a Texas forum. But the terms “plaintiff” and “legal resident” require clarification. Both are defined in the statute, but only the former is directly at issue here. “Plaintiff” is defined as follows:

“Plaintiff” means a party seeking recovery of damages for personal injury or wrongful death. In a cause of action in which a party seeks recovery of damages for personal injury to or the wrongful death of another person, “plaintiff” includes both that other person and the party seeking such recovery. The term does not include a counterclaimant, cross-claimant, or third-party plaintiff or a person who is assigned a cause of action for personal injury, or who accepts an appointment as a personal representative in a wrongful death action, in bad faith for purposes of affecting in any way the application of this section.¹²

Ford argues that none of the wrongful-death beneficiaries qualifies as a plaintiff under the statutory definition for two reasons. First, the beneficiaries are third-party plaintiffs expressly excluded by the definition. Second, the wrongful-death beneficiaries are combined with the decedent into one single plaintiff, just like a pitcher and a catcher are both members of a single team. In this scenario, says Ford, the decedent‘s legal residency controls, and Cesar was not a legal resident of Texas. We disagree with both arguments and hold that the intervening wrongful-death beneficiaries are distinct plaintiffs within the meaning of the Texas-resident exception.

B. The intervening wrongful-death beneficiaries are not third-party plaintiffs excluded from the statute‘s definition of “plaintiff.”

Ford contends the intervening beneficiaries are third-party plaintiffs because:

1. Their claims mirror the estate‘s claim; and
2. Wrongful-death beneficiaries stand in the same legal shoes as the estate.

We disagree. As we read the statute, the definition‘s exclusion of third-party plaintiffs only excludes defendants who file third-party claims. Thus, intervenors can only constitute third-party plaintiffs under the statute if they can be properly characterized as defendants.¹³ We conclude that the intervenors here, however, should not be considered defendants because they are not directly pitted against the plaintiff. Thus, the intervenors are not third-party plaintiffs under the statutory definition. Moreover, while beneficiaries’ claims are in a sense derivative of a decedent‘s claim, this observation does not deprive the intervenors of the status of plaintiffs under the statute.

1. The intervening beneficiaries are not third-party plaintiffs just because their claims mirror the estate‘s claims.

The intervening beneficiaries are not third-party plaintiffs. The statutory definition of “plaintiff” indicates that a plaintiff does not stop being a plaintiff just because he files a cross-claim, counterclaim, or third-party claim. Rather, the statutory definition only excludes defendants who file counterclaims, cross-claims, or third-party claims. Becausе intervenors here cannot be properly characterized as defendants, they are not excluded from the statutory definition of plaintiff.

i. The statutory definition of “plaintiff” excludes only defendants who file third-party claims, cross-claims, or counterclaims.

The ordinary meaning of the statutory text is the first dip of the oar as courts embark on interpretation of a statute. As part of that inquiry, we must consider words in light of the lexical environment in which we find them. “Undefined terms in a statute are typically given their ordinary meaning, but if a different or more precise definition is apparent from the term‘s use in the context of the statute, we apply that meaning.”¹⁴ Under the statutory definition here, the term plaintiff “does not include a counterclaimant, cross-claimant, or third-party plaintiff.”¹⁵ Third-party plaintiff is undefined. However, the context of the statute here indicates that this clause excludes only defendants who assert their own claims within the same lawsuit.

A third-party plaintiff is a party defending a claim who files a pleading to bring a third party into the lawsuit in an effort to pass on or share any liability.¹⁶ Cesar‘s estate is a third-party plaintiff in this traditional sense; Juan sued the estate, and the estate in turn sued Ford as a third-party defendant. The wrongful-death beneficiaries of the estate then intervened and asserted claims against Ford.

However, as a general matter, both defendants and plaintiffs can file counterclaims, cross-claims, and third-party claims. A plaintiff becomes a cross-claimant, by asserting a claim against a fellow plaintiff.¹⁷ If the plaintiff defending against the cross-claim then files a claim against the cross-claimant, the plaintiff-defendant would be a counterclaimant. Rule 38 of the Texas Rules of Civil Procedure allows a plaintiff facing a counterclaim to file a claim against a third party.¹⁸ Thus, plaintiffs can file all three of the kinds of claims mentioned in the definition of “plaintiff.” But while plaintiffs can wear all of these hats, they do not thereby cease tо be plaintiffs as that word is commonly understood.

Statutory definitions must be interpreted in light of the ordinary meaning of the word being defined. A legislature can define terms however it wants.¹⁹ However, when seeking to understand statutory definitions, “the word being defined is the most significant element of the definition‘s context.”²⁰ Courts should not consider the meaning of the term to be defined in total isolation from its common usage. We presume that a definition of a common word accords with and does not conflict with the ordinary meaning unless the language clearly indicates otherwise.²¹

A definition of “plaintiff” that excludes parties to the original petition who proceed to file a cross-claim, third-party action, or counterclaim is contrary to the ordinary meaning of the word. If two parties file suit against a defendant, we would call them both plaintiffs. If one of the plaintiffs files a cross-claim against the other, common usage would still refer to both parties as plaintiffs. If a defendant filed a counterclaim against a plaintiff, and the plaintiff files a third-party action, we would still call that party a plaintiff. We look for a high level of linguistic clarity from the Legislature that it intends its statutory definition to depart markedly from the ordinary meaning of “plaintiff.”

The language of the statutory definition, however, does not clearly signal a departure from ordinary usage because it can be reasonably read as a limitation on the kinds of claimants who fit into the definition. The Legislature has elsewhere defined “claimant” as “a party, including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff, seeking recovery of damages.”²² The definition of “plaintiff” selects a subset of the broader term “claimant” by excluding the last three party types elsewhere listed as claimants in statutory definitions. It simply clarifies that the Texas-resident exception does not apply to all four categories of claimants. It does not, however, narrow the scope of the first сategory—plaintiff—or modify its ordinary meaning. The clause simply limits the definition of “plaintiff” to its traditional scope. It does not cause parties who would in common parlance constitute plaintiffs to drop out of the definition.

The structure of the definition affirms this reading. The first two sentences of the definition are inclusive and define the scope of “plaintiff.” The third sentence carves out particular kinds of claimants from the definition. In full, it states:

The term [plaintiff] does not include a counterclaimant, cross-claimant, third-party plaintiff or a person who is assigned a cause of action for personal injury, or who accepts an appointment as a personal representative in a wrongful death action, in bad faith for purposes of affecting in any way the application of this section.²³

The second half of the sentence, separated by the second “or,” refers to parties who would typically be plaintiffs but for a bad-faith attempt to game the system. The first half of the sentence refers to the only set of circumstances in which defendants assert affirmative claims. The first clause addresses a narrowing of the broad term “claimant.” The second clause, on the other hand, narrows the ordinary sense of the word plaintiff by excluding certain bad-faith plaintiffs. Thus, the logical structure of the sentence first addresses defendants who assert claims and then addresses plaintiffs who assert claims but fail to meet the definition for other reasons.

This text-driven analysis also accords with common sense. As we read it, the statute does not exclude a plaintiff from the Texas-resident exception just because he decides to turn on one of his fellow plaintiffs or bring in a third party. Our reading of the statute limits the scope of cross-claimants, counterclaimants, and third-party plaintiffs to defendants that assert claims. Cross-claims, counterclaims, and third-party claims present the only three kinds of claims that defendants can file in the same suit in which they present their defense. The clause is directed toward clarifying that a defendant cannot become a party that triggers the Texas-resident exception just by asserting its own affirmative claims.

There are at least two compelling reasons for excluding defendants who file claims from the Texas-resident exception. First, if a defendant from Texas files a third-party claim, he could be forced to litigate in Texas even if he wants to remove the case to a foreign jurisdiction. His Texas residency status becomes a curse that anchors the case in Texas even if the plaintiff is a non-resident. Second, in a case where a non-resident of Texas sues multiple defendants in a Texas forum, a defendant who is a legal resident of Texas could single-handedly prevent the other defendants from removing the case from a Texas forum by asserting an affirmative claim. Thus, without this limiting clause, claims brought by non-resident plaintiffs on matters otherwise unrelated to Texas could become cemented in Texas fora. The rule prevents this and clarifies that the Texas-resident exception is designed for non-defendants seeking relief. By contrast, transfiguring plaintiffs into non-plaintiffs just because they file a counterclaim, cross-claim, or third-party claim seems counter-intuitive and contrary to the manner in which we use the word “plaintiff” in ordinary parlance.

JUSTICE JOHNSON‘S dissent argues that the statute does not limit “third-party plaintiff” to defendants. We believe the extensive context discussed above indicates otherwise. JUSTICE JOHNSON‘S reading would contort the ordinary meaning of the word “plaintiff” by reading the statutory definition of plaintiff as excluding parties to the original petition who file cross-claims, counterclaims, or third-party claims. The statute does not close the door on original plaintiffs just because they file a cross-claim, counterclaim, or third-party claim.

JUSTICE JOHNSON also faults our reliance on context in interpreting the statute. But context is essеntial to textual analysis, something this Court has held repeatedly, emphatically, and unanimously. “Undefined terms in a statute are typically given their ordinary meaning, but if a different or more precise definition is apparent from the term‘s use in the context of the statute, we apply that meaning.”²⁴ Indeed, “[l]anguage cannot be interpreted apart from context.”²⁵ Thus, we have tried exhaustively to interpret the statute in light of the surrounding context.

Ironically, JUSTICE JOHNSON‘S dissent, while faulting our textual analysis, offers no textual analysis of its own for the conclusion that “third-party plaintiff” here refers to both defendants and plaintiffs. But that conclusion, even from an isolated examination of the term by itself, is not obvious. Black‘s Law Dictionary defines a third-party plaintiff as “[a] defendant who files a pleading in an effort to bring a third party into the lawsuit.”²⁶ While it is clear that a plaintiff can file a third-party claim under Rule 38 of our Rules of Civil Procedure, the rule never refers to plaintiffs who file such claims as “third-party plaintiffs,” while the rule explicitly calls defendants who file third-party claims by that term. Thus, an isolated examination of “third-party plaintiff” does not yield an obvious answer, yet JUSTICE JOHNSON‘S dissent seems to assume that mere criticism of our contextual approach suffices to establish that the conclusion contrary to ours is correct.

JUSTICE JOHNSON also argues that we have wrongly relied on our own judgment as a guide to statutory interpretation and have thus risked “crossing the dividing line between judicial and legislative prerogatives.” But we only weigh the equities of various outcomes in our discussion regarding the intervenors’ status in the litigation, not in our discussion regarding statutory interpretation. Intervenor status is not governed by statute, and our caselaw explicitly considers equitable factors when determining intervenor status, as discussed below. Of course, when interpreting a statute, we look to the language passed by the Legislature and signed by the Governor—not to our own lights.

ii. The intervenors are not third-party plaintiffs under the statute because they cannot be properly characterized as defendants.

Based on our reading of the statutory definition, third-party plaintiffs in this context only refer to defendants. However, defendants are not just parties sued by a plaintiff. Intervenors can also be characterized as defendants, depending on the nature of their interests and claims. Thus, intervenors here can be excluded as “third-party plaintiffs” if they ‍​‌​​‌​‌‌‌​‌​‌‌​‌‌​​​​‌​​​​​‌​​​‌​‌​​‌​​​‌​​‌‌‌‌‌‍are properly characterized as defendants. While intervenors need not necessarily be defending a claim to intervene in a defendant‘s capacity, we conclude that these intervenors are not defendants. Therefore, they cannot be third-party plaintiffs under the statutory definition, because the definition only excludes defendants who file third-party claims.

Intervenors can be characterized as plaintiffs or defendants²⁷ depending on the claims asserted and relief requested by the intervenor.²⁸ For example, in Noble v. Meyers, we treated the intervenor as a plaintiff. There, the plaintiffs sued a defendant to partition a piece of land.²⁹ The intervenor filed a petition claiming ownership of an undivided interest in the disputed land.³⁰ The plaintiffs responded to the intervention and raised various defenses but sought no relief from the intervenor.³¹ The intervenor did not show up at trial, and a take-nothing judgment was rendered against him.³² The intervenor appealed the judgment, arguing that his claim should have been dismissed without prejudice. We concluded: “An intervenor against whom no affirmative relief is asked by the pleadings of the other parties to the cause occupies so much the position of a plaintiff that the only proper action to take with regard to him, when he fails to appear, is to dismiss his suit for want of prosecution.”³³ Since the intervenor acted like a plaintiff, we treated him like a plaintiff. By contrast, in Perkins v. Freeman,

we treated the intervenors as defendants even though no affirmative claims were leveled against them. In Perkins, paternal grandparents intervened in a child custody suit.³⁴ The father had оbtained custody of the child following divorce, and the mother sued to gain custody.³⁵ The trial court allowed the grandparents and the father to each have six peremptory challenges despite a rule that only six peremptory challenges total should be given to all defendants.³⁶ The issue was whether the intervenors should be treated as defendants, thus limiting the total quantity of challenges between the grandparents and the defendant to six.³⁷ The intervenors’ petition alleged that the plaintiff-mother was unfit and asked that custody be granted to the intervenor-grandparents or, alternatively, the father.³⁸ The intervenors made no allegation of the defendant-father‘s unfitness.³⁹ We treated intervenors as defendants because “there was no antagonism between the intervenors and defendant” and “[t]he defendant and intervenors were united in a common cause of action against the plaintiff.”⁴⁰ Thus, we have held that intervenors can occupy the position of a defendant where their claims and prayer align them with the defendant and pit them directly against the plaintiff, even if no parties assert claims against them.

Perkins and Noble indicate that the status of the intervenor also hinges on the legal consequence of the designation. Equitable considerations played a role in both decisions. For example, in Perkins, we were concerned that allowing the intervenors and the defendant to each have a set of six peremptory challenges would give them an “unequal advantage” that “was so materially unfair that the judgment cannot be upheld.”⁴¹ Likewise, Noble appears to have been animated in part by the arbitrary unfairness of shutting out the intervenor‘s claim simply because of voluntary insertion into the dispute while non-parties’ title claims would remain unprejudiced by the judgment.⁴² Thus, the designation of the intervenor‘s status is determined in part by the purposes and consequences behind the designation.

Our review of the caselaw indicates that courts rarely designаte intervenors as defendants. At the stage of intervention, most intervenors inherently resemble a plaintiff: the intervenor files an affirmative claim, and, at least at the point of intervention, no parties are directly suing the intervenor. Where the intervenor is seeking affirmative relief and is not defending a claim, we should operate under a presumption that the intervenor is a plaintiff. Such an intervenor is only a defendant where the intervenor is closely aligned with the defendant, direct antagonism exists between intervenor and plaintiff, and equitable factors weigh in favor of treating the intervenor as a defendant.

The caselaw regarding how to classify intervenors does not persuade us that intervenors in today‘s case should be designated as defendants or third-party plaintiffs. The intervenors here resemble the intervenor in Noble, and Perkins is readily distinguishable. Moreover, equitable con-

siderations strongly favor holding that intervenors are not third-party plaintiffs.

Like the plaintiff in Noble, the intervenors acted like plaintiffs, not defendants filing a third-party claim. They inserted themselves with affirmative claims for relief. The intervenors’ interests are not in direct opposition to the plaintiff‘s. In fact, intervenors here are more like plaintiffs than the intervenor in Noble, because the plaintiffs in Noble actively opposed the intervenor‘s claims. Here, the plaintiff has not opposed the intervenors—in fact, he has joined with them in the action against Ford.

While the plaintiff‘s and intervenors’ interests may be indirectly adverse, they are not in sufficiently direct opposition to justify treating intervenors as defendants. While the intervenors allege that Ford is fully liable, they have not intervened to defend or protect the estate. Rather, they seek their own affirmative and independent relief. However, the intervenors’ interests may be indirectly harmed if Juan‘s claim against the estate is successful. The intervenors have an interest in Ford assuming the lion‘s share of liability, because they will not recover for any liability allotted to Cesar‘s estate.⁴³ Since the original plaintiff is suing both the estate and Ford, he has a lesser stake in the relative apportionment of liability between the two.

Nonetheless, the parties are not at loggerheads in the manner typical of a plaintiff-defendant relationship. The plaintiff‘s interests here are not threatened by the intervenors. The plaintiff, Juan, will be just as vindicated regardless of which of the two defendants ends up with the hot potato of liability. If anything, Juan might be better off if Ford is fully liable, since Ford‘s pockets doubtless run deeper than the estate‘s. Thus, the plaintiff has no beef with intervenors. The damages he will receive are just as valuable regardless of whose pocket they come from. Again, this is akin to Noble. There, the intervenor was treated as a plaintiff even though the plaintiffs actively opposed the intervenor‘s claim.⁴⁴ The intervenor, however, did not directly oppose the plaintiff‘s partition, nor did his claim depend on the outcome of partitioning. Similarly here, only one party has an interest adverse to the other‘s. The plaintiff has no real antagonism towards the intervenors’ claim against Ford.

The intervenors here are in much less tension with the plaintiff than the intervenors in Perkins. There, the intervenors took a position directly contrary to the plaintiff‘s prayer for relief and thus took on features of a defendant. One could prevail only at the expense of the other. Here, the intervenors have simply taken a different route in the course for recovery than the plaintiff‘s original petition. While they have an indirectly adverse interest in the plaintiff‘s claim against the estate, the parties are not in direct opposition. Although the defendant estate has also filed claims against Ford, that does not mean that the intervenors occupy the same adversarial stance to the plaintiff. The intervenors should not suffer guilt by association.

Ford argues that we should ignore the fact that the plaintiff here has amended his petition to sue Ford and base intervenors’ status on the litigation lаndscape at the time they intervened, when the original plaintiff had not yet added Ford as a defendant. We decline to do so. Parties’ relative positions and interests change. The caselaw indicates that intervenors’ status should revolve around the practical and ongoing realities of the litigation, not on a brief snapshot of the litigation landscape at the moment intervenors entered the suit. If Juan non-suited the estate, leaving only three non-defendant parties suing Ford, we would surely not designate intervenors as defendants, much less third-party plaintiffs. Labels like third-party plaintiff describe how the parties in litigation relate to each other. The dynamics of these relationships can change as litigation proceeds, and so the labels change accordingly.

The interests of the defendant and the intervenors are also not as closely aligned as in Perkins. There, both intervenors and defendant shared the same goal of keeping custody from the mother. The intervenor grandparents sought that custody be bestowed upon them, or, alternatively, the father. In this case, unlike in Perkins, the estate and the beneficiaries seek distinct kinds of relief that do not overlap. The intervenors seek relief typical of wrongful-death claims, such as emotional pain and suffering, loss of consortium, society, and support, etc. The estate, on the other hand, seeks survival damages for Cesar‘s pre-death suffering and funeral expenses. The evidence needed to weigh the merits of these relative claims will vary, and thus they will not be treading the same path to recovery. Moreover, the intervenors’ pleadings have not sought to defend or protect the estate. Intervenors thus do not share as close an alignment with the defendant as the intervenors in Perkins.

Equitable factors like those considered in Perkins and Noble also play a role in determining intervenor status, and they weigh against treating intervenors as defendants who have filed third-party claims. The third-party plaintiff designation would lead to arbitrary аnd illogical results. For example, here, the label of third-party plaintiff and right to access the Texas-resident exception hinge on whether the beneficiaries intervened before or after the original plaintiff (Juan) amended his pleadings to add Ford as a defendant. If Juan had added Ford prior to the intervenors’ plea, then they would indisputably be plaintiffs, not defendants/third-party plaintiffs, because their claims would have been aligned with the original plaintiff at the point of intervention. Likewise, the third-party plaintiff designation would not apply if the beneficiaries had filed an independent suit against Ford asserting the same claims. Then they would be able to lay hold on the Texas-resident exception even though Ford would likely move to consolidate the cases. Even after consolidation, they would not be third-party plaintiffs, since they would have come into the case as independent plaintiffs rather than intervenors. And if Juan had never sued the estate, or the estate had never sued Ford, the beneficiaries would be regular plaintiffs capable of taking advantage of the exception. Nothing in the statutory definition of plaintiff indicates that the independent actions of other litigants should control a party‘s access to the statutory right.

Moreover, under Ford‘s third-party plaintiff theory, if we dismissed for forum non conveniens, the estate would have to litigate in Mexico, but the intervenors/beneficiaries could still file an independent suit in Texas, since they would no longer be third-party plaintiffs. We decline to treat a fleeting and changeable procedural characteristic as a condition precedent to the Texas-resident exception.

JUSTICE JOHNSON and JUSTICE BOYD argue that the intervenors are fully aligned with the estate and antagonistic to Juan. We disagree. Juan‘s interests are wholly vindicated if the intervenors succeed. In the archetypal plaintiff-defendant relationship, each can only succeed at the expense of the other. Here, both intervenors and plaintiff come away victorious if Ford is held fully liable. Moreover, we believe the dissents overstate the degree of alignment between the estate and the intervenors. Their interests are only indirectly harmed if the estate is found liable, as this may reduce Ford‘s ultimate apportionment of liability. Where intervenors enter litigation asserting independent claims for relief, we believe they must be more akin to the archetypal defendant than the scenario presented here before we will treat them as such.

JUSTICE BOYD also argues that the intervenors should be considered third-party plaintiffs because they filed a claim against a third-party defendant. But Ford is formally a third-party defendant only as against the estate. Juan certainly did not become a third-party plaintiff by adding a claim against Ford just because a third-party claim had already been filed against Ford by the estate. Ford is not a third-party defendant as against all parties in the litigation. Here, the intervenors face no counter-claim, so they cannot file a third-party claim. And, contrary to the dissents’ assertion, they have never affirmatively sought to defeat Juan‘s recovery against the estate, so they do not become constructive third-party plaintiffs because of an attempt to defend the estate, assuming this is even possible.

JUSTICE BOYD asserts that Juan‘s later amended petition adding Ford as a defendant does not affect the calculus because this only turns the estate into a cross-claimant, which is also a category of claimant excluded from the definition of “plaintiff.” But this point misapprehends the significance of Juan‘s amended petition for the relative alignment of interests of Juan and the intervenors. Because Juan added a claim against Ford, his interests are no longer adverse as to the intervenors, while his interests remain adverse to the estate‘s. Because the relationship between Juan and the intervenors diverges from the archetypal plaintiff-defendant relationship in this critical respect, we cannot conclude that the intervenors should be treated as defendants, and thus they cannot be third-party plaintiffs.

Finally, we note that neither dissent addresses the arbitrariness that results from their analyses, despite our caselaw‘s clear consideration for the results of a designation in determining an intervenor‘s appropriate status. While such considerations obviously do not factor into our statutory analysis, they constitute an important part of the designation of an intervenor‘s status.

***

The intervenors are not fully aligned with the estate. Their interests are not directly contrary to the plaintiff‘s interests. We thus decline to treat intervenors as defendants, which is a precondition to being a third-party plaintiff under the statutory definition. Moreover, the designation of third-party plaintiff would lead to arbitrary and illogical results. Thus, we conclude that intervenors are not third-party plaintiffs.

2. The intervening beneficiaries are not third-party plaintiffs merely because they stand in the decedent‘s legal shoes or assert the same claims as his estate (an actual third-party plaintiff).

Ford also argues that the derivative-beneficiary rule requires us to treat the wrongful-death beneficiaries as third-party plaintiffs. We disagree.

Wrongful-death beneficiaries are derivative parties. We have said:

[T]he right of statutory beneficiaries to maintain a wrongful death action is entirely derivative of the decedent‘s right to have sued for his own injuries immediately prior to his death, and is subject to the same defenses to which the decedent‘s action would have been subject. In short, wrongful death action plaintiffs stand in the legal shoes of the decedent.⁴⁵

This derivative-beneficiary rule springs from the language of the wrongful-death subchapter, which says: “This subchapter applies only if the individual injured would have been entitled to bring an action for the injury if the individual had lived....” ⁴⁶

This principle applies to both substantive and procedural limitations on the decedent‘s imaginary claim. For instance, in Russell v. Ingersoll-Rand Co., wrongful-death beneficiaries sought to sue defendants even though the decedent could not have sued them before his death because the statute of limitations had run.⁴⁷ We held that if a decedent‘s action would have been barred by limitations if it had been asserted just before he died, a wrongful-death action is also barred.⁴⁸

Our interpretation of the term “third-party plaintiff” in the statutory definition of “plaintiff” does not conflict with the derivative-beneficiary rule in the wrongful-death statute because that rule‘s domain does not extend to these circumstances. The derivative-beneficiary rule applies to characteristics of the decedent and his situation prevailing “immediately prior to his death.”⁴⁹ This ensures that beneficiaries have no greater rights or stronger claims than the decedent would have had as a consequence of the circumstances obtaining at the time of death. Derivative status therefore relates back only to the decedent‘s circumstances immediately preceding his demise and is unrelated to the ongoing procedural status of the estate in the course of litigation.

The third-party plaintiff moniker is not a feature of or limitation on the decedent‘s claim, had he brought one before death. Rather, it is a part of the procedural posture of the posthumous litigation. The status of third-party plaintiff is a characteristic arising out of and internal to the litigation. Indeed, while beneficiaries’ claims are in a sense derivative, beneficiaries are entitled to their own independent recovery that does not benefit the estate.⁵⁰ They are entitled to their own counsel separate from the estate. They cannot simply piggyback on the estate; they must pay their own filing fees and file their own motions, pleadings, and briefs. Their damages must be established and are distinct from those of the estate. Thus, they are entitled to treatment as a party distinct from the estate in the course of litigation and are not chained to its litigation strategy. In other words, while the beneficiaries in some sense wear the decedent‘s shoes, they need not follow in the estate‘s footsteps.

As with Ford‘s intervenor argument, extension of the derivative-beneficiary rule to the procedural status of the estate invites arbitrary results. If the estate had decided not to sue Ford, the beneficiaries would fit into the exception, because they would not be tied to a label that excludes them. The derivative-beneficiary rule tethers the fate of the beneficiaries to the fixed history of the decedent‘s rights immediately prior to death, not to the capricious future of the estate‘s litigation choices.

***

The wrongful-death beneficiaries are not third-party plaintiffs. As we read it, the statutory definition of “plaintiff” limits the word to its traditional scope by preventing defendants from accessing the Texas-resident exception. The intervenors’ claims do not align them with the estate in such a fashion that they should be treated as defendants, so they cannot be third-party plaintiffs under the statutory definition. And the derivative-beneficiary rule does not apply here, since the estate‘s status as a third-party plaintiff is unrelated to the ability of the decedent to file a claim immediately prior to his death.

C. Wrongful-death beneficiaries are distinct plaintiffs whose own residency can satisfy the Texas-resident exception.

The statutory definition of “plaintiff” “includes both” the decedent and other parties suing to recover damages for the decedent‘s wrongful death. We must address the issue of whether this means that the wrongful-death beneficiaries and the decedent are combined into one plaintiff for the purposes of the exception, or whether both wrongful-death beneficiaries and decedents are distinct and separate plaintiffs, each of whom can rely on his own legal residency for purposes оf the exception. While beneficiaries are derivative plaintiffs, the statutory definition allows them to rely on their Texas residency. We hold that wrongful-death beneficiaries and decedents are both distinct plaintiffs under the statute.

We apply a statute‘s plain meaning “unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.”⁵¹ In determining a statute‘s meaning, we “consider statutes as a whole rather than their isolated provisions.”⁵² Here, context within the statutory definition and related provisions demonstrates that wrongful-death beneficiaries are distinct plaintiffs under the statutory definition.

The last clause of the statutory definition is a clear indicator that “includes both” means that wrongful-death beneficiaries and decedents are distinct plaintiffs. That clause says that the term “plaintiff” “does not include ... a person who is assigned a cause of action for personal injury, or who accepts an appointment as a personal representative in a wrongful-death action, in bad faith for purposes of affecting in any way the application of this section.”⁵³ In other words, parties who are appointed or assigned to an injured or deceased party‘s claim are not “plaintiffs” if they became such in order to game the system.

The Legislature‘s express exclusion of bad-faith assignees and personal represen-tatives implies that good-faith assignees and personal representatives are included in the definition. Yet an assignee or a personal representative is a derivative party like a beneficiary.⁵⁴ This casts severe doubt on Ford‘s reading of the statute. Ford says a wrongful-death beneficiary is lumped together with the decedent as a single plaintiff because the beneficiary‘s claim is derivative of the decedent‘s claim. However, the bad-faith exception clearly implies that at least some derivative parties can be distinct and separate plaintiffs. Unless there is some textual basis for distinguishing between types of derivative parties, if any derivative party is a distinct plaintiff under the definition, then they all are. In that case, the bad-faith exception leads inexorably to the conclusion that beneficiaries are indeed distinct plaintiffs and can make use of the Texas-resident exception. We must determine, then, whether the text provides a basis for including certain derivative parties as distinct plaintiffs while excluding wrongful-death beneficiaries.

We can find no textual basis for making this distinction. A wrongful-death beneficiary, like an assignee or a personal representative, is “a party [that] seeks recovery of damages for personal injury to or the wrongful death of another person.”⁵⁵ Thus, when a decedent‘s estate and a wrongful-death beneficiary seek recovery, the term “plaintiff” “includes both” the estate and the beneficiary. Because of the bad-faith exception, we interpret “includes ‍​‌​​‌​‌‌‌​‌​‌‌​‌‌​​​​‌​​​​​‌​​​‌​‌​​‌​​​‌​​‌‌‌‌‌‍both” as creating distinct plaintiffs rather than one singular plaintiff. Therefore, wrongful-death beneficiaries, like assignees or personal representatives, are distinct plaintiffs under the statute.

Our distinct-plaintiff theory also fits with the broader context of the statute. The language of the Texas-resident exception reads in part: “The court may not stay or dismiss a plaintiff‘s claim under Subsection (b) if the plaintiff is a legal resident of this state.”⁵⁶ Multiple people cannot be “a legal resident of the state.” Indeed, the subsection defining “legal resident” states that a legal resident is “an individual.”⁵⁷ The language envisions that a single plaintiff must be capable of being a single legal resident. A single legal resident is a single individual. A single plaintiff, therefore, cannot include multiple individuals.

If we decided that multiple individuals could be a plaintiff, we would create a gap in the statute that would then require judicial lawmaking to resolve. If a “plaintiff” may include multiple parties, then the Court must decide whose residency should control. It is axiomatic that “[t]o supply omissions transcends the judicial function.”⁵⁸ If courts should not supply gap-filling laws, then they certainly should not create a demand for them by interpreting statutes so as to create holes that otherwise would not exist. When we interpret wrongful-death beneficiaries and decedents as distinct plaintiffs, we can simply apply the Legislature‘s resolution for actions involving multiple plaintiffs properly joined in an action arising from the same occurrence: “If an action involves both plaintiffs who are legal residents of this state and plaintiffs who are not, the court may not stay or dismiss the action under Subsection (b)....”⁵⁹ If we decide that multiple individuals can be a single plaintiff, then we must engage in a measure of judicial lawmaking to resolve the case.

Ford‘s arguments for the singular-plaintiff theory cannot carry the day. Ford points out that we have interpreted very similar language in the manner proposed by Ford in Drilex Systems, Inc. v. Flores.⁶⁰ There, we interpreted a provision defining “claimant” in the statute governing proportionate responsibility.⁶¹ The definition at that time read: “In an action in which a party seeks recovery of damages for injury to another person, damage to the property of another person, death of another person, or other harm to another person, ‘claimant’ includes both that other person and the party seeking recovery of damages....”⁶² We concluded that the plain language of the statute combined the derivative and the injured parties into one single claimant.⁶³

Ford‘s reliance on Drilex is misplaced, as the Texas-resident exception is readily distinguishable. First, the proportionate responsibility provision in Drilex did not have a bad-faith exception that clearly implies that derivative parties are distinct plaintiffs. Second, unlike the definition in Drilex, other crucial context here indicates that a single plaintiff is a party capable of being a single legal resident.

We are not concerned that disparate interpretations of almost identical language undermines principles of statutory construction. These statutes relate to different matters, so the text of the definition itself and other context in the exception carry much more interpretive weight than a statutory provision in a far-flung part of the corpus juris.

Moreover, Ford‘s reading of the statute can only be reached by contorting the ordinary meaning of “plaintiff” without any indication that the Legislature intended to depart from the term‘s common usage. As discussed above, “the word being defined is the most significant element of the definition‘s context.”⁶⁴ When someone says that a baseball team “includes both” a first baseman and a shortstop, it plainly means that each of them is a part of the same team. Unlike a word like “team,” however, “plaintiff,” in common usage, does not apply to a collection of individuals, which renders the meaning of “includes both” far less obvious. “Plaintiff” in ordinary use is a term applied party-by-party. Neither common parlance nor formal dictionaries use the term as referring to a collective group. Black‘s Law Dictionary defines “plaintiff” as “[t]he party who brings a civil suit in a court of law.”⁶⁵ Likewise, Webster‘s Third New International Dictionary defines plaintiff as “one who commences a personal action or lawsuit” or “the complaining party in any litigation.”⁶⁶ Be-

cause the ordinary sense of the word should guide our understanding of ambiguous words or phrases in the Legislature‘s definition,⁶⁷ the ordinary meaning of “plaintiff” points to an interpretation that reads “includes both” as creating distinct plaintiffs rather than a collective plaintiff. At the very least, the nature of the word being defined clouds the meaning of “includes both” and makes it ambiguous. The bad-faith exception provides crucial context that resolves the ambiguity by treating derivative parties, like beneficiaries, as distinct plaintiffs.

Again, Ford argues that its reading of the statute accords with the traditional rule that a beneficiary is a derivative plaintiff who stands in the shoes of the decedent and that the beneficiary‘s claims are wholly derivative of the decedent‘s rights. Thus, given this principle, says Ford, we should favor a reading of the statute that does not give a beneficiary a right that the decedent would not have had if he had brought an action immediately prior to his death.

We acknowledge that the definition of “plaintiff” does not sit in isolation but must live in company with its neighbors in the broader body of law. “If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.”⁶⁸ No fair reading, however, can harmonize the wrongful-death statute‘s broader derivative-beneficiary rule with the Texas-resident exception. If we held that beneficiaries are not “plaintiffs” in deference to the derivative-beneficiary rule, we would ren-

der the bad-faith exception meaningless. If a good-faith assignee or personal representative can be a plaintiff, then a wrongful-death beneficiary must also be a distinct plaintiff. To hold otherwise would delete the bad-faith exception and violate our duty to “giv[e] effect to all words so that none of the statute‘s language is treated as surplusage.”⁶⁹

When the Legislature enacts two conflicting provisions that cannot be reconciled, “the special or local provision prevails as an exception to the general provision.”⁷⁰ The narrow Texas-resident exception operates as a small carve-out to the broad rule that a wrongful-death beneficiary stands in the shoes of the decedent.

Ford also expresses the concern that the beneficiaries’ reading of the statute renders the second sentence redundant. The first sentence of the definition reads: “‘Plaintiff’ means a party seeking recovery of damages for personal injury or wrongful death.”⁷¹ This broad language would include a wrongful-death beneficiary. The second sentence says: “In a cause of action in which a party seeks recovery of damages for personal injury to or the wrongful death of another person, ‘plaintiff’ includes both that other person and the party seeking such recovery.”⁷² Ford says the second sentence becomes meaningless if it only means that a wrongful-death beneficiary is a plaintiff. The theory that decedent and beneficiaries are one plaintiff gives meaning to the second

sentence by reading it as a limitation or exception to the first broader sentence.

We believe the two sentences are not redundant. The second sentence still has meaning as an added layer of clarity. Since the exception was written with the broad derivative-beneficiary rule as a backdrop, the second sentence serves as the kind of clear language courts seek when trying to determine whether a specific rule can be harmonized with a more general rule. The second sentence is not redundant when viewed as a specific clarification that the definition is stepping away from the traditional rule regarding derivative plaintiffs that might otherwise apply if the Legislature had only spoken with the level of generality in the first sentence.

***

Ford‘s interpretation directly contradicts the necessary implication of the bad-faith exception, conflicts with contextual provisions and asks us to engage in judicial lawmaking. We decline Ford‘s reading of the statute and hold instead that beneficiaries and decedents are distinct plaintiffs for purposes of the Texas-resident exception to the forum non conveniens doctrine.

III. Conclusion

A fair reading of the Legislature‘s Texas-resident exception requires that Ford defend itself in a Texas forum against claims brought by Texas residents. We cannot rewrite the statute under the guise of interpreting it. We dеny the petition for writ of mandamus.

Justice JOHNSON filed a dissenting opinion, in which Justice DEVINE and Justice BROWN joined, and in part III of which Justice BOYD joined.

Justice BOYD filed a dissenting opinion.

“Defendant‘s/Third-Party Plaintiff‘s Original Third-Party Petition.” In it she alleged that Ford Motor Company, Goodrich Corporation, Michelin North America, Inc., and Michelin Americas Research and Development Corporation were completely responsible for the accident, the injuries to Juan, and Cesar‘s death. She also alleged that, contrary to Juan‘s allegations, Cesar was not responsible to any degree and she claimed survival damages for Cesar‘s injuries. Then at 12:28 p.m. that same day, Yuri, along with Yadira N. Tueme Tijerina, another of Cesar‘s adult daughters, and Cesar‘s mother, Maria De Refugio Mendez Castillo, all in their capacities as individuals and wrongful death beneficiaries of Cesar (Yuri intervenors), filed a pleading entitled “Plaintiffs-Intervenors Yuri Tueme, Yadira N. Tueme Tijerina and Maria De Refugio Mendez Castillo‘s Original Petition in Intervention.” They were represented by the same law firm that filed the third-party petition on behalf of the estate and their pleadings tracked those of the estate as to factual allegations, damage allegations, and theories of liability, except for differences to account for the estate‘s claiming survival damages while the Yuri intervenors claimed wrongful death damages.¹ In August, represented by a different attorney from the Yuri intervenors, Melva Uranga filed an “Intervenors/Plaintiffs’ Original Petition” in her alleged capacity as Cesar‘s wife and as mother, next friend, and natural guardian of J.T., Cesar‘s minor daughter (Uranga intervenors). The Uranga intervenors named Ford Motor Company, Goodrich Corporation, Michelin North America, Inc., and Michelin Americas Research and Development Corporation as defendants,² and like the estate and the Yuri intervenors, claimed those defendants were solely responsible for the accident, Juan‘s injuries, and Cesar‘s death. The Uranga intervenors made the same claims as the Yuri intervenors as to facts, wrongful death damages, and theories of liability.³

The trial court denied Ford‘s motion to dismiss based on forum non conveniens, the court of appeals denied mandamus relief, and Ford now asks this Court to issue a writ of mandamus directing the trial court to grant its motion. For the reasons set out below, I would do so.

II. Discussion

A. Definition of “Plaintiff”

Texas has codified the doctrine of forum non conveniens. TEX. CIV. PRAC. & REM. CODE § 71.051. The general rule is stated in section 71.051(b):

If a court of this state, on written motion of a party, 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. In determining whether to grant a motion to stay or dismiss an action under the doctrine of forum non conveniens, the court shall consider whether [certain enumerated factors apply].

Id. An exception to the general rule precludes dismissal of claims by plaintiffs who are legal residents of Texas:

The court may not stay or dismiss a plaintiff‘s claim under Subsection (b) if the plaintiff is a legal resident of this state. If an action involves both plaintiffs who are legal residents of this state and plaintiffs who are not, the court may not stay or dismiss the action under Subsection (b) if the plaintiffs who are legal residents of this state are properly joined in the action and the action arose out of a single occurrence. The court shall dismiss a claim under Subsection (b) if the court finds by a preponderance of the evidence that a party was joined solely for the purpose of obtaining or maintaining jurisdiction in this state and the party‘s claim would be more properly heard in a forum outside this state.

Id. § 71.051(e). The statute defines “plaintiff” as:

a party seeking recovery of damages for personal injury or wrongful death. In a cause of action in which a party seeks recovery of damages for personal injury to or the wrongful death of another person, “plaintiff” includes both that other person and the party seeking such recovery. The term does not include a counterclaimant, cross-claimant, or third-party plaintiff or a person who is assigned a cause of action for personal injury, or who accepts an appointment as a personal representative in a wrongful death action, in bad faith for purposes of affecting in any way the application of this section.

Id. § 71.051(h)(2) (emphasis added). The statute expressly excludes third-party plaintiffs from the definition of “plaintiff,” but does not define “third-party plaintiff.” Nor does the statute define or address intervenors.

B. The Intervenors are not “Plaintiffs”

The Court says that, in context, section 71.051(h)(2)‘s language providing “[plain-tiff] ‘does not include a counterclaimant, cross-claimant, or third-party plaintiff‘” excludes “only defendants who assert their own claims within the same lawsuit.” 442 S.W.3d at 271. The Court then says that although the statute excludes only defendants from the definition of plaintiff, parties “need not necessarily be defending a claim to intervene in a defendant‘s capacity.” Id. at 274. It proceeds to analyze whether these intervenors, who clearly are not defendants at risk of a judgment being rendered against them, should be “characterized” as defendants even though the Court has already concluded that the statute excludes only defendants from the definition of plaintiff. After analyzing the interests of the intervenors, Juan, and Ford, the Court concludes that the intervenors are not defendants and therefore cannot be third-party plaintiffs under the statutory definition. Id. at 287.

I agree that the intervenors are not defendants and that the definition of “plaintiff” in section 71.051(h)(2) excludes defendants who assert claims in the same lawsuit. But, I do not agree that the definition of “plaintiff” excludes only defendants; the statute simply does not say so. I further agree that interests of non-defendant intervenors such as these must be analyzed to determine if they should be characterized as defendants, and whether the claims they make should be characterized as counterclaims, cross claims, or third party claims. But, unlike the Court, I conclude that a proper analysis of the intervenors’ interests vis-à-vis Juan, the estate, and Ford yields the conclusion that they should be characterized as third-party plaintiffs.

The Court says that, in context, section 71.051(h)(2)‘s language “limits the scope of cross-claimants, counterclaimants, and third-party plaintiffs to defendants that assert claims.” Id. at 272. But, it is well established that courts must take statutes as we find them and presume the Legislature included words in statutes that it intended to include and omitted words it intended to omit. See, e.g., Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010); Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (noting that we must enforce statutes as written and refrain from rewriting text that lawmakers chose). If it had been the Legislature‘s intent to limit the application of section 71.051(h)(2) to actual defendants, it could have inserted the words “a defendant who is,” so that the limitation read “the term [plaintiff] does not include a defendant who is a counterclaimant, cross-claimant, or third-party plaintiff.” Or, the Legislature could have simply said that “the term [plaintiff] does not include a defendant.” We must presume that the Legislature intentionally omitted any reference to “defendant.” Moreover, courts do not read language into a statute unless doing so is necessary to avoid an absurd result. See, e.g., Presidio Indep. Sch. Dist., 309 S.W.3d at 930. The Court does not propose or demonstrate that the language of section 71.051(h)(2) yields an absurd result as it is written. Nor does it contend that grafting the “only defendant” language into section 71.051(h)(2) avoids an absurd result. The Court lays out reasons why defendants are excluded from the definition of plaintiff in section 71.051(h)(2), but no one is arguing that the defendant estate is a plaintiff under the statute.

Ironically, the Court‘s reasons for excluding defendants from being plaintiffs under the statute apply to these intervenors. For example, the Court first says that categorizing a resident defendant who files a third-party claim as a plaintiff could force the defendant to litigate in Texas even if he wants to remove the case to a foreign jurisdiction. But under the Court‘s construction of the statute, a resident defendant who does not file a third-party claim can nevertheless be unwillingly locked into litigating in Texas by а Texas resident who intervenes, as the intervenors did here. Next, the Court says excluding defendants from the definition of plaintiff keeps one Texas resident defendant who files an affirmative claim from single-handedly preventing other defendants from removing the case from Texas. But again, under the Court‘s construction of “plaintiff,” none of the defendants have to file affirmative claims in order for them to lose the option of removal: Texas-resident intervenors can lock multiple defendants into litigating in Texas despite the defendants’ unified desire to remove the case from Texas.

In sum, the Court simply does not convincingly demonstrate that it is an absurd, nonsensical result for “plaintiff” in section 71.051(h)(2) to mean both actual defendants and intervenors who are not defendants but who are aligned with defendants. Nor does it adequately explain how defining “plaintiff” to mean only actual defendants avoids an absurd result. Under the Court‘s construction of the statute, the Legislature has precluded a Texas resident from section 71.051(e)‘s protection when the resident is involuntarily haled into court as a defendant and files a counterclaim or third-party claim. Yet, the Court concludes the Legislature afforded a Texas-resident intervenor section 71.051(e)‘s protection—and ability to lock all the other parties into a Texas forum—even though the intervenor aligns with a resident defendant and files the same claim against the original plaintiff or third-party defendant as did the named resident defendant. That is a nonsensical result. Rather than construing the statute according to the words the Legislature used, or here, did not use, the Court veers off course and uses “context” to re-make the statutory exception. In the Court‘s final analysis it seemingly does so because it is unwilling to accept the procedural construct the Legislature‘s words created. The Court notes that if Juan‘s claim against the estate is dismissed, the estate will have to litigate in Mexico while the intervenors could file an independent suit in Texas and the Court “decline[s] to treat a fleeting and changeable procedural characteristic as a condition precedent to the Texas-resident exception.” 442 S.W.3d at 277. But that position turns the protection of section 71.051(h)(2) on its head under the circumstances before us. The Texas-resident exception serves to keep Texas plaintiffs’ claims in Texas, not to insulate claims of non-resident plaintiffs such as Juan from application of section 71.051(b).

Despite its construction of section 71.051(h)(2) as applying only to defendants and the fact that no one contends the intervenors here are actually defendants, the Court proceeds to analyze whether the intervenors should be characterized as defendants. I agree that such an analysis should be made; the intervenors are not actual defendants, and yet under long standing precedent their interests must be analyzed to determine if they should be characterized as such.

Typically, although not always, an intervenor is characterized as either a plaintiff or a defendant. The Court notes that when it is necessary to characterize the nature of an intervenor as a plaintiff or a defendant, the determination generally turns on the claims asserted and relief requested by the intervenor as well as the purposes and consequences underlying the necessity for the designation. 442 S.W.3d at 274; see Perkins v. Freeman, 518 S.W.2d 532, 534 (Tex. 1974). This Court has referred to parties who intervened in a lawsuit as third-party plaintiffs, as have others. See, e.g., Prudential Sec., Inc. v. Marshall, ‍​‌​​‌​‌‌‌​‌​‌‌​‌‌​​​​‌​​​​​‌​​​‌​‌​​‌​​​‌​​‌‌‌‌‌‍909 S.W.2d 896, 898 (Tex. 1995) (per curiam); Humble Oil & Refining Co. v. Westside Inv. Corp., 428 S.W.2d 92 (Tex. 1968). Although the two foregoing cases did not focus on the classification of the intervenors, they demonstrate that intervenors can have a status other than that of either plaintiff or defendant. See Marshall, 909 S.W.2d at 898. And while it may be true, as the Court says, that a third-party plaintiff is typically a defendant in the original action who files a pleading to bring a third party into the lawsuit in an effort to pass on or share any liability, 442 S.W.3d at 271, that is not the case when a party who has not been sued as a defendant intervenes in support of and in alignment with a defendant/third-party plaintiff, as has hapрened here.

The intervenors could have filed a separate suit against Ford, but they chose not to do so. Intervenors such as the Yuri and Uranga intervenors (sometimes referenced collectively as “intervenors“) are basically interlopers in a lawsuit. As such, they must take the case as it exists when they join it; they do not get to remake it to fit their interests. See Buzzini Drilling Co. v. Fuselier, 562 S.W.2d 878, 879 (Tex. Civ. App.—Houston [1st Dist.] 1978, no writ); Rogers v. Searle, 533 S.W.2d 440, 443 (Tex. Civ. App.—Corpus Christi 1976, no writ); Corzelius v. Cosby Prod. & Royalty Co., 52 S.W.2d 270, 272 (Tex. Civ. App.—Fort Worth 1932, no writ). And when they showed up, these intervenors joined forces with and asserted the same claims and allocations of fault as the defendant estate: Ford was responsible for the accident, Cesar was not responsible for it, the accident caused Juan‘s and Cesar‘s injuries, and the intervenors were entitled to damages because of Cesar‘s death. This alignment is to be expected because the claims of both the estate and intervenors are derivative of Cesar‘s claims. See Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992); see also TEX. CIV. PRAC. & REM. CODE § 71.003(a). As the Court sets out, the intervenors’ claims mirror those of the estate. The intervenors have no interest adverse to the estate‘s claims. Rather, their interests are indistinguishable from those of the defendant/third-party plaintiff estate‘s, except, as previously noted, the intervenors are not exposed to a potential judgment for Juan‘s damages, and the types of damages the estate and wrongful death beneficiaries claim differ.

The Court says, at different points, that “the intervenors’ interests are not in direct opposition to the plaintiff‘s,” “the intervenors have taken no position on the estate‘s liability,” and “the plaintiff has no beef with intervenors.” 442 S.W.3d 265, 276. But those statements do not ring true. The intervenors’ interests are in direct opposition to Juan‘s claim against the estate; the intervenors have taken a position on the estate‘s liability; and the plaintiff does have beef with the intervenors. First, the intervenors’ interests are in direct opposition to those of Juan, the plaintiff who is claiming that Cesar‘s negligence caused the accident and who is seeking recovery from the estate. After all, how could they not be? If the intervenors aligned with Juan and blamed Cesar and his estate, they would in effect be blaming themselves and seeking to defeat or diminish their own claims. Next, the intervenors’ interests were and are exactly aligned with those of the estate as to the estate‘s liability to the only plaintiff, Juan. Their position is and always must be that Juan is wrong: Cesar did not fail to properly maintain the vehicle and he was not otherwise negligent, because any fault by Cesar directly affects any recovery by intervenors. And the intervenors claim that the accident was all Ford‘s fault—contrary to Juan‘s original claim that it was all Cesar‘s fault and his continuing claim that Cesar was at fault as well as Ford. Finally, as the foregoing shows, Juan may not have a direct “beef” with the intervenors in the sense that he has not sued them, but his interests and theirs directly conflict because he claims that Cesar caused the wreck while their position is that he did not. On the other hand, Ford‘s interests were and are aligned with the claims made in Juan‘s petition to the extent that Juan claims Cesar was at fault in causing the accident. Both Juan and Ford are adverse to the estate and the intervenors insofar as Cesar‘s role in causing the accident is concerned, even though the intervenors are not technically defendants.

The Court notes that in Perkins “[w]e treated intervenors as defendants because ‘there was no antagonism between the intervenors and defendant’ and ‘[t]he defendant and intervenors were united in a common cause’ against the plaintiff.” 442 S.W.3d at 275 (quoting Perkins, 518 S.W.2d at 534). In this case it is clear that there is no antagonism between the defendant/third-party plaintiff estate and the intervenors. The estate and the Yuri intervenors are represented by the same attorneys. The estate and all the intervenors will want jurors receptive to the position that Cesar was not negligent, and unreceptive to the allegations of both Juan and Ford that Cesar was at fault in causing the wreck. The estate and the intervenors will be aligned as to the types of liability witnesses and evidence needed to show Ford was at fault and Cesar was not. The estate and the intervenors will have different damages issues and models, but their damages claims will not conflict and their jury arguments will be complementary, not antagonistic. Melva Uranga summarized the positions of the intervenors and the estate in an affidavit in support of her intervention:

I am aware that I have brought claims for [J.T.] against the Ford Motor Company and Michelin tire companies. I know that these claims are being pursued for the benefit of [J.T.]. I know that Yuri Tueme has been appointed as administrator of the Estate of Cesar Tueme, and that the Estate has brought the exact same kind of claims against the Ford Motor Company and Michelin tire companies. I also know that Cesar‘s mother, and all his adult children, have brought the exact same kind of claims against the Ford Motor Company and Michelin tire companies.

In sum, there simply is no antagonism between the estate and the intervenors whereas there is direct antagonism between Juan, who is claiming Cesar negligently caused the accident, and the estate and intervenors who claim Cesar was not negligent. I recognize that after the estate and intervenors sued Ford, Juan also did. But the alignment of Juan, the estate, and the intervenors against Ford does not remove the antagonism that exists between Juan, on the one hand, and the estate and the intervenors on the other. See Savage v. Cowen, 33 S.W.2d 433, 434 (Tex. Comm‘n App. 1930, judgm‘t adopted) (“By seeking recovery against intervenor as well as defendants, intervenor became a defendant as to plaintiffs; his claim is adverse to that of plaintiffs, and, as against them, his position is the same as that of the original defendants.“). Thus, the intervenors should be characterized as defendants and third-party plaintiffs and they do not fall undеr the plain language of the Texas-resident exception in section 71.051(b).

Not only must courts take statutes as they are written and enacted, we must take cases as they are structured by the parties and as they come to us. See, e.g., MAN Engines, Inc. v. Shows, 434 S.W.3d 132, 134 (Tex. 2014) (“We take cases as they come....“). The Court attempts to justify its decision by addressing scenarios that are not before us, such as if the intervenors filed separate suits instead of intervening. But those scenarios show only that different facts and different litigation choices can yield different litigation results. Whether we believe the procedural structure enacted by the Legislature is the most or least efficient way to accomplish a goal is not the proper test for whether we should read words into a statute and risk crossing the dividing line between judicial and legislative prerogatives. The proper test is the longstanding one of whether, absent our reading words into the statute, the statute yields an absurd result. Presidio Indep. Sch. Dist., 309 S.W.3d at 930. And in this instance, if the statute does not reach an absurd result by precluding Texas residents who are defendants and third-party plaintiffs from meeting the statutory definition of plaintiff—and the Court does not say it does—then it is not an absurd result for the intervenors in this case to be precluded from being characterized as plaintiffs. The Court‘s characterizing the intervenors as plaintiffs instead of as third-party plaintiffs, when they are completely aligned with the defendant estate that is also a third-party plaintiff in the lawsuit, circumvents legislative intent manifested in the words used in section 71.051. I would characterize the intervenors as third-party plaintiffs, hold that they do not come within the Texas-resident exception to forum non conveniens under the statute, and hold that the only plaintiff in this suit for purposes of Ford‘s motion to dismiss is Juan—a resident of Mexico. See TEX. CIV. PRAC. & REM. CODE § 71.051(h)(2). Those positions would bring us to the question of whether to direct the trial court to grant Ford‘s motion to dismiss. For the reasons set out below, I would do so.

On a last note, the Court says I would read the statute to exclude original plaintiffs in a suit from the application of section 71.051(e) if they were to file a cross-claim, counterclaim, or third-party claim. The Court is incorrect; I do not even attempt to address such a situation because it would be completely different from the facts before us and would implicate different concerns. Unquestionably, the Legislature intended to provide that section 71.051(b) does not apply to claims of Texas-resident plaintiffs. But harmonizing the language of the statute so that such intent is fulfilled under circumstances not before us will depend on those particular facts and factors.

III. Application of the Forum Non Conveniens Factors

Typically, the plaintiff‘s choice of forum is given great deference when the doctrine of forum non conveniens is being considered. In re Pirelli Tire L.L.C., 247 S.W.3d 670, 675 (Tex. 2007). But a nonresident‘s choice of Texas as a forum is generally afforded substantially less deference than that of a Texas resident. Id.; see also Quixtar, Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010). And if a plaintiff is not a Texas resident, courts must consider the factors⁴ listed in the forum non conveniens statute when determining whether to dismiss or stay an action for forum non conveniens. TEX. CIV. PRAC. & REM. CODE § 71.051(b). If the factors weigh in favor of the action more properly being heard in a forum outside Texas, the claim must be dismissed. In re Gen. Elec. Co., 271 S.W.3d 681, 686 (Tex. 2008).

Consideration of the section 71.051(b) factors begins with determining whether there is an adequate alternative forum where the lawsuit may be tried, and then balancing the public and private interests at stake. Pirelli Tire, 247 S.W.3d at 675-77. An adequate alternative forum exists if the defendant would be subject to the alternate forum‘s jurisdiction by consent or otherwise, and the substantive law in the alternate forum would not deprive the parties of a remedy. Id. at 677-78. The private interest factors include the location of the evidence, the location of witnesses, the availability of a compulsory process for ensuring the attendance of those witnesses, and the location of the accident scene. Id. at 677. The public interest factors include the administrative burden on the courts and citizens of Texas with little or no connection the lawsuit, the extent to which acts or omissions in Texas contributed to the accident or injury, and the alternative forum‘s interest in protecting the rights of its citizens. Id. at 679; see also TEX. CIV. PRAC. & REM. CODE § 71.051(b)(5).

The circumstances here, similar to those we addressed in Pirelli Tire, weigh in favor of dismissal for forum non conveniens. Pirelli Tire, 247 S.W.3d at 677-78. First, Mexico is an adequate alternative forum that is available for the litigation to proceed. Ford has consented to Mexico‘s jurisdiction and the record demonstrates that Mexican law provides a remedy.

The private factors at stake favor litigating this case in Mexico. The accident site is in Mexico, the vehicle was registered in Mexico, both the plaintiff and decedent were residents of Mexico at the time of the accident, the crash site investigators and treating physicians are all located in Mexico, the accident report and autopsy took place in Mexico, and the majority of the factual evidence and pertinent fact witnesses are located in Mexico. A Mexican court can compel attendance of these witnesses while a Texas court cannot.

Additionally, while Texas has an interest in seeing that persons injured by negligence or other liability-creating acts allegedly taking place in Texas are compensated for injuries they suffer, the public interest factors weigh at least as strongly in Mexico‘s favor. The connections Texas is alleged to have with the accident are: (1) several months before the accident a nail was removed from the right front tire (the left rear tire is the one that failed) by a Texas tire shop; (2) general testimony that Cesar performed maintenance on the Explorer‘s tires in both Texas and Mexico by “checking the pressures, viewing the tires for any obvious problems, and so on“; and (3) Ford tested Explorer vehicles in Texas at some time in the past. Not only does Mexico have similar interests in Cesar‘s maintenance of the tires, but it also has interest in the driving conduct of motorists on its highways and streets, particu-larly conduct involved in accidents resulting in fatalities. And Mexico certainly has an interest in protecting the rights of its residents by ensuring they are compensated for injuries they sustain in Mexico.

Just as the balance of factors weighed in favor of Pirelli Tire‘s motion to dismiss in Pirelli Tire, the balance here weighs in favor of granting Ford‘s motion to dismiss.

IV. Conclusion

I would grant Ford‘s request for mandamus relief. Because Respondent does not pray that in the event mandamus relief is granted, the relief be limited to staying the suit, I would direct the trial court to (1) vacate its order denying Ford‘s motion to dismiss and (2) dismiss the suit.

Justice BOYD, dissenting.

For the most part, I agree with the Court‘s construction of section 71.051 of the Texas Civil Practice and Remedies Code in this case, and I generally disagree with Justice Johnson‘s conclusion that the Court “errs by reading language into the statute.” Ante at 284 (Johnson, J., dissenting). But I agree with Justice Johnson‘s conclusion that the Court “errs by misapprehending the interests of the intervenors,” id., and with his forum non conveniens analysis, so I too dissent, but for slightly different reasons.

The issue in this case is whether the intervenors, who are Texas residents, are “plaintiffs” and thus protected from forum non conveniens dismissal under section 71.051(e) of the Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE § 71.051(e) (“The court may not stay or dismiss a plaintiff‘s claim ... if the plaintiff is a legal resident of this state.“). Addressing a different section of the same Code, we hold today in another case that the common, ordinary meaning of the term “plaintiff” refers to a party who initiates a lawsuit or legal proceeding and does not include defendants or third-party defendants who file cross-claims, counterclaims, or third-party claims. Jaster v. Comet II Constr., 438 S.W.3d 556 (Tex. 2014). Unlike section 71.051, the statute at issue in Jaster does not define the term “plaintiff,” so we looked in that case to dictionary definitions, prior precedents, and other statutes to identify the term‘s common, ordinary meaning, and then concluded that the context confirmed the use of that intended meaning. Id. at 563. Section 71.051 is one of the statutes to which we look in Jaster, and we note that it first “defines [the term ‘plaintiff‘] broadly to mean ‘a party seeking recovery of damages for personal injury or wrongful death,’ but ... then expressly provides that ‘[t]he term does not include a counterclaimant, cross-claimant, or third-party plaintiff.‘” Id. at 567-68 (quoting TEX. CIV. PRAC. & REM. CODE § 71.051(h)(2)). We note in Jaster that this section is consistent with others throughout the Civil Practice & Remedies Code, which repeatedly use and define the term “claimant” to refer to all parties who seek rеlief in a lawsuit, id. at 567, and use and define the term “plaintiff” to refer to claimants who initiate the lawsuit. Id. at 560-61.

In this case, the Court confirms that the term “plaintiff,” as section 71.051(h) defines it, refers to “a subset of the broader term ‘claimant.‘” Ante at 272. The Court also concludes that “plaintiffs” who file counterclaims, cross-claims, or third-party claims do not thereby cease to be “plaintiffs,” ante at 271, and that a “third-party plaintiff,” as that term is used in section 71.051, means “a defendant who files a pleading in an effort to bring a third-party into the lawsuit.” Ante at 273. The first of these conclusions is what we held in Jaster, and the other two are consistent both with it and with the language of section 71.051. I agree with all three, and thus disagree with Justice Johnson‘s view that the Court is reading words into section 71.051 when it concludes that a party must be a defendant to be a third-party plaintiff. Ante at 274.

Consistent with our holding in Jaster, under the common, ordinary meaning of the term, as well as the definition in section 71.051(h)(2), a “plaintiff” is a party who initiates the lawsuit (i.e., the first party to the suit). Jaster, 438 S.W.3d at 560-61. A defendant (the second party to the suit) may assert claims against a third party, and by doing so the defendant becomes a “third-party plaintiff.” See TEX. R. CIV. P. 38(a) (providing that “a defending party, as a third-party plaintiff,” may serve citation and a petition on “a person not a party to the action“).¹ If the defendant asserts counterclaims against the plaintiff, the plaintiff may also bring in a third party “under circumstances which under this rule would entitle a defendant to do so.” TEX. R. CIV. P. 38(b). But the rules nowhere refer to such a plaintiff as a “third-party plaintiff.” TEX. R. CIV. P. 38. Instead, although the rule allows a “plaintiff” to bring in a “third party,” it refers only to a “defending party” as a “third-party plaintiff.” Id. I thus agree with the Court that a plaintiff who asserts claims against a third party does not thereby cease to be a “plaintiff,” and that only a defendant can be a “third-party plaintiff.”

But we are not dealing in this case just with a plaintiff, a defendant/third-party plaintiff, and a third-party defendant. Instead, we are dealing with intervenors, who elected to insert themselves into a lawsuit that already involved a plaintiff, a defendant/third-party plaintiff, and ‍​‌​​‌​‌‌‌​‌​‌‌​‌‌​​​​‌​​​​​‌​​​‌​‌​​‌​​​‌​​‌‌‌‌‌‍a third-party defendant. “[A] person or entity has the right to intervene [1] if the intervenor could have brought the same action, or any part thereof, in his own name, or, [2] if the action had been brought against him, he would be able to defeat recovery, or some part thereof.” Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). In other words, a person may intervene as a plaintiff who could have brought the same action, or as a defendant who can defeat the plaintiff‘s recovery. And, I would add, a person may intervene as a third-party plaintiff if the intervenor could have brought the same claims against the third-party defendant in the intervenor‘s own name, or as a third-party defendant if the intervenor would be able to defeat the third-party plaintiff‘s recovery, or some portion thereof. And, as I would hold occurred in the present case, a person may intervene as a defendant/third-party plaintiff, opposing the plaintiff‘s recovery against the defendant and seeking recovery against the third-party defendant.

The issue in this case is whether the intervenors have joined with the plaintiff, the third-party plaintiff, or the third-party defendant. The Court acknowledges that intervenors can be “characterized” as plaintiffs or as defendants, “depending on the nature of their interests and claims,” ante at 274, and “need not necessarily be defending a claim to intervene in a defendant‘s capacity.” Ante at 274. It then compares these intervenors to the interve-

nor in Noble v. Meyers, 76 Tex. 280, 13 S.W. 229 (1890), whom we “treated ... like a plaintiff” because he “acted like a plaintiff,” ante at 274, and distinguishes them from the intervenors in Perkins v. Freeman, 518 S.W.2d 532 (Tex. 1974), whom we treated like defendants because there was “no antagonism” between them and the defendant and because they and the defendant were instead “united in a common cause of action against the plaintiff.” Ante at 275 (quoting Perkins, 518 S.W.2d at 534).

Noble and Perkins represent the two principal considerations for determining how to categorize an intervenor: (1) whether the intervenor seeks affirmative relief (like a plaintiff) or to defeat another party‘s recovery (like a defendant); and (2) whether the intervenor‘s interests are aligned with or antagonistic to the interests of various other parties in the suit. Sometimes only one of these considerations is helpful, and it dictates the outcome. For example, we based our decision in Noble on the first consideration alone. 13 S.W. at 230. The intervenors in Noble claimed an ownership interest in land in a partition suit among parties who claimed full ownership of the same land. Id. at 229. Although the intervenors’ interests were equally antagonistic to both the plaintiffs’ and the defendant‘s, we treated the intervenors as plaintiffs because they sought affirmative relief and no affirmative relief was sought against them. Id. at 230. Conversely, we relied more extensively on the second consideration in Perkins, a child custody action in which the defendant and the intervenor-grandparents agreed that custody of the child should remain with the defendant. 518 S.W.2d at 534. Because the defendant‘s and intervenors’ interests were aligned, we treated the intervenors as defendants. Id.

But both Noble and Perkins involved only first-party claims. When there are second-party claims (counterclaims and cross-claims) and third-party claims, the first consideration is less definitive because there is more than one category of parties that seek or defend against affirmative relief. This is true here, where there are three parties: the plaintiff (Juan), the defendant/third-party plaintiff (the estate), and the third-party defendant (Ford). Under our rules governing intervention, the question is: With which of these three are intervenors’ interests most aligned? As Justice Johnson explains, the intervenors share the interests of the estate (the defendant/third-party plaintiff), both in avoiding the estate‘s liability to Juan (the plaintiff) and in imposing liability on Ford (the third-party defendant). I agree that the intervenors’ interests are most aligned with the estate‘s interests in this case, and thus they intervened into this lawsuit as defendants/third-party plaintiffs.

Holding to the contrary, the Court suggests that intervenors “acted like plaintiffs, not defendants filing a third-party claim.” Ante at 276. But when there are no counterclaims, as is the case here, it is only a defendant who can file a third-party claim. See TEX. R. CIV. P. 38(a), (b). Filing a third-party claim thus may constitute acting like a defendant (the estate) and like a third-party рlaintiff (also the estate), but it does not constitute acting like the plaintiff (Juan), who is not permitted under the rules of civil procedure to file a third-party claim. See id.. The intervenors “acted like plaintiffs” only by filing claims against a third-party defendant, which is what third-party plaintiffs do. Because multiple parties are asserting or defending against affirmative relief, the question of whether the intervenors are asserting or defending against affirmative relief cannot alone dictate how the interve-nors are classified. Instead, as with most cases involving second- and third-party claims, we must also consider which party‘s interests are most closely aligned with the intervenors’ interests. The answer, as Justice Johnson explains, is the estate.

The Court points out that Juan‘s (the plaintiff‘s) interests in this case will be “wholly vindicated if the intervenors succeed” in their claims against Ford, ante at 278, but that is also true if the estate (the defendant/third-party plaintiff) succeeds in its claims against Ford. Similarly, the Court suggests that Juan “will be just as vindicated regardless of which of the two defendants [the estate or Ford] ends up with the hot potato of liability.” Ante at 276. This, however, only demonstrates why the intervenors’ interests are not aligned with Juan‘s interests: if the estate ends up with the “hot potato,” then Juan wins but the intervenors lose. In this suit, the intervenors share the estate‘s fate, not Juan‘s.

The Court acknowledges that the intervenors, like the estate, filed claims against a third-party defendant, Ford. Ante at 278. But because the plaintiff, Juan, later filed his own direct claims against Ford, the Court contends that Ford is a defendant as to Juan, and is “formally a third-party defendant only as against the estate.” Id. Even if Juan‘s direct claim against Ford is relevant to this analysis, it places Ford in the position of a defendant, rather than a third-party defendant, and the estate in the position of a cross-claimant, rather than a third-party plaintiff, with respect to Ford. Because the statute excludes cross-claimants from the definition of “plaintiff” as well as third-party plaintiffs, the distinction mаkes no difference. TEX. CIV. PRAC. & REM. CODE § 71.051(h)(2). Whether the estate‘s claims against Ford constitute third-party claims or cross-claims, the estate is not a “plaintiff,” and because the intervenors’ interests remain aligned with the estate‘s interests, they are not “plaintiffs” either.

As both the Court and Justice Johnson agree, if the intervenors had filed a separate, independent lawsuit against Ford, they would have been “plaintiffs” and, as Texas residents, would have been protected from forum non conveniens dismissal under section 71.051. But they didn‘t. Instead, they intervened in an existing lawsuit that already involved a plaintiff, a defendant/third-party plaintiff, and a third-party defendant. Intervenors must take the case as they find it. See, e.g., Buzzini Drilling Co., 562 S.W.2d at 879 (holding that because “[a]n intervenor takes the suit as he finds it ..., venue of the intervention is dependent upon the venue of the original cause of action“); Corzelius, 52 S.W.2d at 272 (holding that an “intervener takes the case as he finds it“). In choosing to join this suit, the intervenors aligned themselves with the estate, sharing its interests in avoiding liability to the plaintiff and alleging that Ford is liable. Under such circumstances, they have intervened into this suit not as “plaintiffs” but as “third-party plaintiffs.” The protection from forum non conveniens dismissal, therefore, does not apply to them in this case.

Because I agree with Justice Johnson that the intervenors in this case have intervened as defendants/third-party plaintiffs and not as plaintiffs, I would not reach Ford‘s alternative argument that section 71.051 treats the intervenors as a combined, single plaintiff with the decedent. Because I also agree with Justice Johnson‘s application of the forum non conveniens factors to this case, I respectfully dissent.

LUBBOCK COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT and Tommy Fisher, in his official capacity as President of the Board of Directors of the Lubbock County Water Control and Improvement District, Petitioners, v. CHURCH & AKIN, L.L.C., Respondent.

No. 12-1039.

Supreme Court of Texas.

Argued Jan. 8, 2014.

Decided July 3, 2014.

Rehearing Denied Aug. 20, 2014.

Notes

1

The district court had granted a letter of administration in January 2011. For example, in the “Facts” part of their petition, the Yuri intervenors repeated the factual allegations set out in the estate‘s third-party petition, deleting language in the final paragraph specifying that Yuri, as administrator of the estate, “asserts only those survival claims belonging to the Estate of Cesar Mendez Tueme” and adding language referring to “the intervenors.” The mirror-image language of the pleadings asserted that third-party defendants Ford, et. al. were completely responsible for the accident and injuries to both Juan and Cesar. With the differences in language emphasized, the paragraphs are set out below. Paragraph A is from the defendant/third-party estate‘s third-party petition while paragraph B is from the intervenors’ original pleading:

A. For all of the reasons set forth herein Defendant/Third-Party Plaintiff would show that Third-Party Defendants are completely responsible and legally liable for the injuries suffered by Plaintiff Juan Tueme Mendez and that Third-Party Defendants are completely responsible and legally liable for all claims arising out of the death of Cesar Mendez Tueme (for which Yuri Tueme asserts only those survival claims belonging to the Estate of Cesar Mendez Tueme). As such, Defendant/Third-Party Plaintiff is not and should not be held responsible and legally liable for Plaintiff Juan Tueme Mendez’ injuries, but rather such responsibility and legal liability is upon Third-Party Defendants herein.

B. For all of the reasons set forth herein, Defendant/Third-Party Plaintiff and Intervenors would show that Third-Party Defendants are completely responsible and legally liable for the injuries suffered by Plaintiff Juan Tueme Mendez, and that Third-Party Defendants are completely rеsponsible and legally liable for all claims arising out of the death of Cesar Mendez Tueme. As such, Defendant/Third-Party Plaintiff is not and should not be held responsible and legally liable for Plaintiff Juan Tueme Mendez’ injuries, but rather such responsibility and legal liability is upon Third-Party Defendants herein.

The third-party defendant, in turn, may assert claims “against any person not a party to the action who is or may be liable to him or to the third-party plaintiff for all or part of the claim made in the action against the third-party defendant.” TEX. R. CIV. P. 38(a). Because this kind of claim brings a fourth party into the suit, we have referred to these parties as fourth-party plaintiffs and defendants, although Rule 38 does not. See, e.g., Liberty Mut. Ins. Co. v. First Nat‘l Bank in Dall., 151 Tex. 12, 245 S.W.2d 237, 243-44 (1951) (resolving claims by a “fourth party plaintiff” ‍​‌​​‌​‌‌‌​‌​‌‌​‌‌​​​​‌​​​​​‌​​​‌​‌​​‌​​​‌​​‌‌‌‌‌‍against “fourth party defendants“).

2

Michelin later settled. Ford Motor Company is the only one of the original third-party defendants remaining in the lawsuit.

3

We do not decide today whether a next friend can be a “plaintiff” for purposes of the Texas-resident exception. We do not need to address that question to resolve this case because J.T. аnd Yuri are legal residents of Texas. The pleadings of the Uranga intervenors paralleled those of the Yuri intervenors set out in footnote 1:

For all of the reasons set forth herein, Intervenors/Plaintiffs would show that Defendant Ford and the Defendants Michelin are completely responsible and legally liable for the injuries suffered by Intervenors/Plaintiffs, and that Defendant Ford and Defendants Michelin are completely responsible and legally liable for all claims arising out of the death of Cesar Mendez Tueme.

4

247 S.W.3d 670 (Tex. 2007). The factors to be considered are whether:

1. an alternate forum exists in which the claim or action may be tried;
2. the alternate forum provides an adequate remedy;
3. maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;
4. the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff‘s claim;
5. the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state; and
6. the stay or dismissal would not result in unreasonable duplication or proliferation of litigation.

TEX. CIV. PRAC. & REM. CODE § 71.051(b).

5

442 S.W.3d 423, 2012 WL 5949026.

6

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004).

7

Pirelli Tire, 247 S.W.3d at 679.

8

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

9

TEX. CIV. PRAC. & REM. CODE § 71.051(b).

10

Id.

11

Id. § 71.051(e).

12

Id. § 71.051(h)(2).

13

While intervenors are not traditional defendants in the sense that they are involuntarily drawn into litigation to defend against a claim, intervenors can still be characterized as defendants under particular circumstances. See, e.g., Perkins v. Freeman, 518 S.W.2d 532 (Tex. 1974). We explore this concept in greater depth below.

14

TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011).

15

TEX. CIV. PRAC. & REM. CODE § 71.051(h)(2).

16

See TEX. R. CIV. P. 38; BLACK‘S LAW DICTIONARY 1708 (10th ed. 2014).

17

TEX. R. CIV. P. 97(e).

18

Id. at 38(b).

19

TGS-NOPEC, 340 S.W.3d at 439 (“If a statute uses a term with a particular meaning or assigns a particular meaning to a term, we are bound by the statutory usage.“).

20

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 232 (2012).

21

See id. (“[W]hile it is true that drafters have the power to innovate upon the general meaning of words at large free from all legal restrictions, they do not have the power to do so free from the presumption that they have not done so.” (footnote omitted) (internal quotation marks omitted)).

22

TEX. CIV. PRAC. & REM. CODE § 41.001(1); see also id. § 147.001(2).

23

Id. § 71.051(h)(2).

24

TGS-NOPEC, 340 S.W.3d at 439.

25

Id. at 441.

26

BLACK‘S LAW DICTIONARY 1708 (10th ed. 2014) (emphasis added).

27

Compare Perkins, 518 S.W.2d at 534 (characterizing intervenor as defendant) with Noble v. Meyers, 76 Tex. 280, 13 S.W. 229, 230 (1890) (characterizing intervenor as plaintiff). See also Jenkins v. Entergy Corp., 187 S.W.3d 785, 797 (Tex. App.—Corpus Christi–Edinburg 2006, pet. denied) (characterizing intervenor as defendant); Welch v. Hrabar, 110 S.W.3d 601, 608 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (characterizing intervenor as plaintiff).

28

See, e.g., Perkins, 518 S.W.2d at 534 (evaluating status based on the claims and request for relief in the intervenors’ petition); see also Sec. State Bank v. Merritt, 237 S.W. 990, 992 (Tex. App.—Amarillo 1922, no writ). The Texas Civil Practice & Remedies Code allows for intervenors to enter suits as additional plaintiffs. See TEX. CIV. PRAC. & REM. CODE § 15.003.

29

Noble, 13 S.W. at 229.

30

Id.

31

Id.

32

Id.

33

Id. at 230.

34

Perkins, 518 S.W.2d at 534.

35

Id. at 533.

36

Id.

37

Id.

38

Id. at 534.

39

Id.

40

Id.

41

Id.

42

See Noble, 13 S.W. at 230.

43

We decline to speculate as to whether any recovery against the estate would diminish the wrongful-death beneficiaries’ future inheritance from the estate, as nothing in the record provides insight into this possibility. Plus, the question of intervenor status focuses on parties’ interests internal to the litigation and does not extrapolate to considerations of what parties might prefer in general.

44

See Noble, 13 S.W. at 229-30.

45

Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 347 (Tex. 1992).

46

TEX. CIV. PRAC. & REM. CODE § 71.003(a).

47

Russell, 841 S.W.2d at 344. In Texas, statutes of limitations are considered procedural rather than substantive bars to bringing an action. Id. at 356 & n. 11.

48

Id. at 352.

49

Id. at 347.

50

See Shepherd v. Ledford, 962 S.W.2d 28, 31 (Tex. 1998) (“An action to recover damages for wrongful death is for the exclusive benefit of the deceased‘s surviving spouse, children, and parents.“).

51

Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011).

52

TGS-NOPEC, 340 S.W.3d at 439.

53

TEX. CIV. PRAC. & REM. CODE § 71.051(h)(2).

54

See Russell, 841 S.W.2d at 347 (affirming that no wrongful-death action is allowed unless “the decedent could have maintained suit for his injuries immediately prior to his death“); John H. Carney & Assocs. v. Texas Prop. and Cas. Ins. Guar. Ass‘n, 354 S.W.3d 843, 850 (Tex. App.—Austin 2011, pet. denied) (“An аssignee ‘stands in the shoes’ of the assignor but acquires no greater right than the assignor possessed.“).

55

TEX. CIV. PRAC. & REM. CODE § 71.051(h)(2).

56

Id. § 71.051(e) (emphasis added).

57

Id. § 71.051(h)(1).

58

Iselin v. United States, 270 U.S. 245, 250 (1926).

59

TEX. CIV. PRAC. & REM. CODE § 71.051(e).

60

1 S.W.3d 112 (Tex. 1999).

61

Id. at 122.

62

Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.07, 1987 Tex. Gen. Laws 40, 41 (amended 2003) (current version at TEX. CIV. PRAC. & REM. CODE § 33.011(1)).

63

See Drilex, 1 S.W.3d at 122.

64

SCALIA & GARNER at 232.

65

BLACK‘S LAW DICTIONARY 1336 (10th ed. 2014).

66

WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 1729 (3rd ed. 1961).

67

SCALIA & GARNER at 232 (“The normal sense of [the word being defined] and its associations bear significantly on the meaning of ambiguous words or phrases in the definition.“).

68

TEX. GOV‘T CODE § 311.026(a).

69

Marks v. St. Luke‘s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010).

70

TEX. GOV‘T CODE § 311.026(b).

71

TEX. CIV. PRAC. & REM. CODE § 71.051(h)(2).

72

Id.

Case Details

Case Name: in Re Ford Motor Company

Court Name: Texas Supreme Court

Date Published: Jul 3, 2014

Citation: 442 S.W.3d 265

Docket Number: 12-0957

Court Abbreviation: Tex.