*1 improperly jury denied a trial on the attor-
ney’s fee issue.
Conclusion
The judgment enforcing the settlement AFFIRMED; however,
agreement attorney’s
trial court’s award of fees is and that
REVERSED issue is REMAND-
ED for a new trial. AIRCRAFT,
In re WESTERN INC. America, In re Nozaki Relators. Prichard, David M. Laura Flores Ma- com, Hawkins, Jeffrey Ryan S. G. 04-99-00001-CV, Nos. 04-99-00165-CV. Anderson, Weed, P.C., Antonio, Ball & San Texas, Court of Smith, Moore, April Charles H. John W. Robbins, Moore, L.L.P., F. Smith & Dal- las, appellant.
Michael Maloney, Maloney, J. Martin & Mitchell, L.L.P., Houston, Cynthia L. Muniz-Berain, Muniz-Berain, Rodriguez & P.C., Pass, Eagle Ajamie, Thomas R. C, David Mark Goldberg, Andrew Schirrmeister, Ajamie, Schirrmeister L.L.P., Houston, appellee. LÓPEZ, Sitting: ALMA L. Justice GREEN, PAUL W. Justice KAREN ANGELINi, Justice.
OPINION LÓPEZ, Opinion by: ALMA L. wrongful Relators are defendants in survivorship litigation stemming death and crash near airplane from commercial Negras, parties, Piedras Mexico. Real below, Pass, Eagle plaintiffs filed suit County, Texas. As all of the Maverick Texas, and none of the some reside place of principal defendants have their filed motions to business *2 383 a con- factors the numerous of of based on the doctrine dismiss forum of pros and cons balancing the Alternatively, siders in relators non conveniens. of law. or the choice of forum law to case. choice apply moved to instead, move, require- to the second We hearing, a the trial court denied Following peti- entertaining a mandamus ment and for motion to dismiss Airlines’s ade- tion, have an that relators Two and find apply. would ruled that Texas law appeal. later, remedy No- against quate ruled months the court Both similar motion. defendants zaki’s Appeal Adequacy of The petitions writs of manda- separate filed their motion granted and this a presents mus Court non conveniens Forum proceedings. to consolidate the akin to a venue procedural matter In process. to the trial incidental Miller, Dredging Co. v. American The STANDARD OF REVIEW Supreme Court stated: United States in this proceed To relief bottom, non At the doctrine of find a clear abuse of ing, the Court must forum nothing less than more or conveniens the relators do not discretion provision, permit- supervening a remedy on adequate appeal. have an ordinary rules ting displacement Packer, 833, 842 v. 827 S.W.2d Walker when, condi- certain of venue of (Tex. A review of Texas cases from tions, jurisdic- court thinks that the trial yields only 1991 to 1999 three cases where But venue is tion to be declined. proceeding the mandamus rather goes process matter with the of a motion to dismiss dealt denial rights determining than substantive non All conveniens. found that — among competent various which the trial court had not abused its discre the case. decide retain trial litigation. tion to The of great deal discretion 981, 443, 453, 127 114 510 S.Ct. U.S. it has personal retain over which (1994); In see Polaris L.Ed.2d 285 subject jurisdiction matter on its dock Abascal, Management Corp. v. vestment Barney, et. See Smith (Tex.1995,orig.proceeding) 892 860 S.W.2d (Tex. 1998, Yava orig. proceeding); 593 (objection had to venue Mejia, Tribe v. 906 pai-Apache S.W.2d Fourth remedy Montalvo v. by appeal); (Tex. 1995, App. [14th Dist.] 152 (Tex. 1, 2 917 Appeals, S.W.2d — Houston of Ismail, v. 702 orig. proceeding); Ismail 1995, expe (objection to orig.proceeding) 216 (Tex.App [1st Dist.] S.W.2d hear schedule for venue diting discovery . —Houston n.r.e.). 1985, ref Three other cases writ 'd appeal). had granted where dismissal writ, must to a To be entitled all reversed These cases been ruling on adverse prior Legislature passing to the arose places them concerning this common law doc statute losing a substan position permanently of 21 International Hold trine in v. Helicopters, Ltd. right. tive Canadian Westinghouse Inc. v. Elec. 856 ings, 304, Wittig, 876 S.W.2d 306 (Tex. App. 479 Antonio S.W.2d — San in argue, They not do so. Relators do re in In writ)(disapproved stead, provides Mexico a more Choo, Corp. v. 881 pra); Exxon su cite on do the cases relators forum. Nor (Tex. 1994)(affirming 301 court S.W.2d rights demonstrate substantial this issue dismissal); Sarieddine appeals’ reversal CSR, Link, 925 case. Ltd. v. loss this (Tex. Moussa, App.— (Tex.1996) In and National denied). Dallas writ Gibson, Ass ’n v. dus. Sand (Tex.1995) special appearance concern we do not find it proceeding, In this personal court’s analysis rulings, a matter necessary in a engage case, over a defendant. this Downey, 817 S.W.2d (Tex.App . —Hous (sub relators either did not contest personal ton orig. proceeding) [1st Dist.] jurisdiction or waived their spe dismissed). motion for sequent petition Sup.Ct. Moreover, cial appearance. these cases petitions The of relators for mandamus were decided before the statutory *3 relief are they denied because have failed amendment, which created an interlocu to an inadequate remedy tory remedy other than mandamus when a appeal. Real parties’ motion for sanctions grants trial court or special ap denies a is denied. pearance. When an interlocutory appeal available, is the “extraordinary circum dictating stances” mandamus relief from Concurring opinion by: PAUL W. special
the denial of a appearance usually GREEN, will not if present the outcome, I concur in the only very but remedy. Ray reluctantly. My concern is that relators
mond
Holding,
Overseas
Ltd. v. Curry,
actually have no
adequate remedy by ap-
(Tex.App.
— Fort
peal.
Worth
In United Mexican
v. Ashley,
States
action,
In this mandamus
majority
the
(Tex.1977),
the
gov-
likens a
non conveniens denial to a
ernment
a party
defendant
ruling.
And the
underlying suit and sought
protect
to
its
repeatedly told us that the denial of mo-
sovereignty immunity through a manda-
tion to transfer
merely
venue is
an inci-
mus proceeding.
governmen-
No Mexican
which,
erroneous,
dental trial ruling
is
tal entity
party
is a
defendant to the Mav-
correctable on
In re
But see
Ma-
and,
erick
suit
although relators
sonite
Likewise, foreign country, our presents only conclu courts should accept jurisdiction sions that the trial court decline to of cases that had no discretion when are on the choice of law. Al arise out of those events.1 There vir- very tually there is little Texas law with that favor facts this case invok- analyze adequacy which to the of appeal the of the federal state a choice of law with ruling, agree we the courts in this A Mexican com- airliner, Houston Court of an pilot passen- this is mercial whose other incidental gers which relators were all Mexican crashed in must seek their remedy by appeal. See Mexico while on a flight between two Mex- Nacionales, Transportes Aereos S.A. ican cities. All the public 1. As Justice Hecht has noted: "The rule of or both.” defendants or the conveniens, used, properly forum non does prohibit entertaining not it court from (Tex.1998)(quoting from his dissent in Dow Rather, protects to hear. it Alfaro, Chemical Co. v. Castro being compelled from doing to hear cases when (Tex. 1990)). fundamentally so would be unfair to facts, supreme court or the physical and all the evidence and citizens provide mechanism. Relators are located Mexico. witnesses that one is only are involved extent aircraft and and lessor owner the aircraft brokered the lease of other Neither relator operator. the Mexican of business Texas. principal place its above, make a of discre- good case that it was abuse Irma Ramiro BURUATO tion for refuse Buruato, Appellants, fundamentally It motion dismiss. *4 require these to defend
unfair trial, themselves even successful. LAREDO HOSPITAL OF MERCY d/b/a an appellate To have to wait for Regional Mercy Medical Center compounds the unfairness. It is simply Vela, Appellees. Jorge Dr. litigants unfair the State and those No. 04-98-00638-CV. rightfully seek relief in the Maverick who courts that scarce court resources County needlessly preempted, those be citizen-jurors working of Maverick hard 1999. required through who will be to sit lengthy case Rehearing Aug. Overruled relationship community all to their their relief, relators will also be sub-
Without
ject extraordinary difficulty and undue trying prepare associated with
expense
a ease for trial in this connec-
tion with events that occurred another
country. While it is conceded some may go to trial under these circum-
cases
stances, I those do in- daresay cases not matters and issues remote to the
volve as
forum as exist in this case.
Nonetheless, has not pro- interlocutory appeal for the denial
vided of a non conveniens motion to dis-
miss; only possible mandamus is the ave- And relief. because
nue supreme court has indicated actions
mandamus cases, should treated like venue cases be majority denies relief on the basis by adequate remedy
there ruling only majority’s
I concur appears I feel what
because constrained on the court’s intent to these If relief is to be afforded
issue. litigants facing similar
relators or future