IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════&#= 9552;═══

No. 04-1129

════════λ= 2;═══

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

════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══════════ = 552;═

On Petition for Writ of = Mandamus

════════&#= 9552;═════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══

Argued November=20 29, 2005

Justice Willett, joined = by Justice Wainwright as to Part = I,=20 concurring.

I = agree that=20 this Mexico car = accident case=20 does not belong in the Texas judicial system, but for = reasons simpler=20 than those posited by the Court.

I. The Unadorned Language of Section 71.051(a) = Controls This=20 Case

=20 Boiled down, the Court=92s holding is that the various common-law = factors=20 from Gulf Oil =93clearly and overwhelmingly favor a Mexican forum = for=20 resolution of this dispute.=94[1] I agree wholeheartedly that the = Gulf=20 Oil factors require dismissal, but I disagree that the Legislature = provided=20 that these factors apply and should inform the Court=92s analysis.

=20 It is undisputed that the governing statutory provision in this = case is=20 subsection (a) of section 71.051,[2] which covers suits brought by = foreign=20 plaintiffs and imposes a modest standard for forum non conveniens dismissals, not = subsection=20 (b),[3] which covers suits = brought by=20 legal residents and imposes a markedly tougher standard. Subsection (a) = asks=20 only whether the case =93would be more properly heard in a forum outside = this=20 state=94;[4] it says nothing, presumably on = purpose,=20 about the perceived adequacy of that forum=92s remedy or about the = balance of=20 public and private interests that animates the Gulf Oil factors. =

=20 It is true that the 78th Legislature repealed subsection (a) = effective=20 September 1, 2003, and that all forum non conveniens=20 disputes, regardless of plaintiff=92s residency, are now governed by the = six-factor balancing test of subsection (b).[5] But it is also true that = subsection (a)=20 was on the books and controlling when this case was filed, and = subsection (a)=20 plainly omits any Gulf Oil-type considerations. The Court today = adopts a=20 no-harm, no-foul approach because a foreign plaintiff who loses under = the more=20 pro-plaintiff subsection (b) must necessarily lose under subsection (a), = but=20 given that this litigation predated the elimination of subsection (a), I = would=20 apply that less-onerous (for defendants) standard from the start. The=20 subsections are simply and indisputably different. Lawmakers enacted two = distinct standards based on the plaintiff=92s residency status, and it = is a=20 distinction with a difference. Cases involving foreign plaintiffs do not = require=20 the same balancing of interests as cases involving resident = plaintiffs.[6] I would not blur the = statute=92s=20 residency-based distinction by importing factors that elected = policymakers, for=20 reasons good or bad, chose not to include in cases involving nonresident = plaintiffs.

=20 The Court contends that subsection (a)=92s catch-all phrase =93in = the=20 interest of justice=94 is sufficient to justify cutting-and-pasting the = Gulf=20 Oil factors from subsection (b). The Court concedes these factors = are not=20 controlling but considers them nonetheless instructive in determining = whether=20 forum non conveniens dismissal is required = under=20 subsection (a). No doubt, weighing the six specifically enumerated = Gulf=20 Oil factors may prove helpful in explicating a gauzy =93interest of = justice=94=20 standard, but in my view, applying them is contrary to what the = Legislature=20 enacted, and thus what the Legislature intended.[7] Lawmakers drew a bright-line = distinction=20 between residents and nonresidents who wish to invoke this State=92s = judicial=20 machinery and conferred a preference on the former. =93Courts must take = statutes=20 as they find them,=94 [8] and treating this case as a=20 post-September 1, 2003 case rather than a pre-September 1, = 2003=20 case by importing language from one provision to another eviscerates the = distinction between subsections (a) and (b).

=20 The facts underlying today=92s case are extreme, and invocation = of the=20 forum non conveniens doctrine is manifestly = warranted=20 in this case where:

1. =20 The plaintiffs are Mexican citizens who reside in Mexico;

2. =20 Defendant Pirelli is a Delaware = corporation=20 with its principal place of business in Georgia;

3. =20 The allegedly defective tire was manufactured in Iowa;

4. =20 The tire, Mexican-registered truck, and all other accident-related = physical=20 evidence are in Mexico;

5. =20 The accident occurred in Mexico and the damages were = suffered=20 there;

6. =20 The Mexican police and medical examiner investigated the accident;

7. =20 All witnesses to the accident are in Mexico;

8. =20 Several significant witnesses refuse to come to Texas for depositions or = testimony;

9. =20 One of the plaintiffs has refused to come to Texas for a deposition despite = filing suit=20 here;

10. =20 Compelling the witnesses and plaintiff to appear may not be possible; = and

11. =20 Pirelli has stipulated that it is amenable to suit in = Mexico.

=20 These undisputed facts demonstrate convincingly that Texas has no = dog in this=20 fight. As we stated in In re Smith = Barney,=20 Inc., =93It is fundamentally unfair to burden the people of = Texas with = the cost of=20 providing courts to hear cases that have no significant connection with = the=20 State.=94 [9] It seems beyond serious dispute = that this=20 case =93would be more properly heard in a forum outside this state,=94 [10] and those voted-on words = constitute the=20 applicable legal test. Mexico=20 has the paramount stake in this lawsuit; Texas, virtually none. When the most = consequential connection between a case and the chosen forum is a = plaintiff=92s=20 decision to sue there, little more need be said. On these uncontested = facts,=20 there is no need to balance the various considerations subsection (b) = applies to=20 cases involving resident plaintiffs. The complete absence of a = nontrivial=20 Texas=20 connection is sufficient in itself to mandate dismissal.

=20 I would simply hold, under the governing pre-September 1, 2003 = statute,=20 that where (1) the plaintiffs are not legal residents of the United = States and=20 (2) a non-Texas forum is more appropriate, the forum non conveniens doctrine protects the court system of = this State=20 and its citizens, who as taxpayers fund the courts and who as jurors = serve as=20 finders of fact. By holding otherwise, the trial court abused its = discretion=20 based on section 71.051(a).

II. The Governing Statute Requires No =93Adequacy=94=20 Assessment

=20 The Court and the Dissent also consider whether Mexico=20 would provide an =93adequate=94 alternative forum. The voluminous = filings in the=20 trial court and this Court persuade me that this issue is hotly = contested and=20 its resolution by a court unfamiliar with Mexican procedural and = substantive law=20 is not a simple task.[11] In any event, such an inquiry = is=20 unnecessary. Section 71.051(a) does not mandate an =93adequacy=94 = assessment,=20 however measured, of an alternative forum when the plaintiffs are not = legal=20 residents. It merely asks whether the case =93would be more properly = heard in a=20 forum outside this state=94=97that is, the movant need=20 only establish the existence of another forum, not its = adequacy.=20 Mexico indisputably = has civil=20 courts that entertain tort claims for its citizens who are injured in=20 Mexico. By contrast, = subsection (b)=20 of the statute, applicable to plaintiffs who are legal residents of the = United=20 States, lists as factors for the court=92s consideration whether =93an = alternative=20 forum exists=94 and whether that alternate forum =93provides an adequate = remedy.=94[12]

=20 Moreover, whatever legal impediments to relief in = Mexico that plaintiffs have = demonstrated, the=20 record points to no legal barrier to plaintiffs seeking relief in the = State=20 where Pirelli is incorporated (Delaware), or=20 where Pirelli has its principal place of business (Georgia), or where the allegedly = defective tire=20 was manufactured (Iowa).

=20 Reading subsections (a) and (b) together, I would hold that the = trial=20 court need not consider whether Texas courts might provide a remedy that = Mexico,=20 for policy reasons of its choosing, would deny to her own citizens. = Texas is not required to provide more relief to = Mexican=20 citizens than Mexico itself provides. = Allowing the=20 suit to proceed in Texas simply = because this=20 State may provide the most attractive or convenient forum for = plaintiffs, or=20 because plaintiffs rate Texas as the = most=20 advantageous forum as a matter of legal strategy, is not justified where = Texas has no=20 stake in the outcome.

III. Trial Court Discretion Under the=20 Statute Is Not Boundless

=20 Finally, I believe the Dissent makes too much of language in = section=20 71.051(a) that the district court =93may=94 decline to exercise its = jurisdiction=20 under the doctrine of forum non conveniens. = In my=20 view, =93may=94 simply confirms that the district court=92s decision is = a matter of=20 discretion, subject to review for abuse of that discretion, or, when the = case is=20 before us on mandamus, a clear abuse of discretion.[13] Permissive does not mean = limitless, and=20 while appellate courts should not second-guess trial court rulings = cavalierly,=20 the word =93may=94 does not render such rulings bulletproof and unreviewable. There is nothing unusual about = giving trial=20 courts discretion to make rulings and giving appellate courts authority = to=20 scrutinize those rulings for abuse. By this standard courts of appeals = routinely=20 review, by mandamus or direct appeal, all manner of discovery, = evidentiary,=20 continuance, new trial, severance, jury charge, and jury selection = rulings, to=20 name a few. More to the point, the Legislature knows how to grant trial = courts=20 absolute discretion in venue-related decisions,[14] but it did not bestow such = unfettered=20 discretion here.

=20 I wonder where the Dissent=92s analysis would end. I see no = limiting=20 principle that turns on Mexico=92s geographic proximity to = Texas or our = long=20 friendship and shared history with that nation. The analysis would seem = to apply=20 with equal force to any plaintiff located anywhere on Earth who wishes = to sue=20 any defendant located anywhere on Earth, based on an injury occurring = anywhere=20 on Earth. The Dissent appears to hold the view that so long as the Texas = court=20 has personal jurisdiction over the defendant, as it might with many = global=20 manufacturers under principles of general jurisdiction, and that = defendant is=20 unable to persuade the Texas trial court that another =93adequate=94 = alternative=20 forum is available, then the case must be allowed to proceed in Texas, = and the=20 trial court=92s decision is immune from appellate review.

=20 Considering a case at the opposite extreme, if the defendant and=20 witnesses all lived in Texas, the = claim arose=20 in Texas, and Texas law applied, and the trial = court=20 nonetheless dismissed on forum non conveniens grounds,=20 surely that decision would be reviewable despite the presence of the = word =93may.=94 Discretion works both ways, and if a trial = court can=20 abuse its discretion by dismissing a case, surely it can abuse its = discretion by=20 not dismissing a case.

=20 I agree with the Court that this case should be dismissed. = Texas, while hospitable as befits a state whose = motto is=20 Friendship,[15] is not and should not serve as = the=20 =93courthouse for the world,=94 [16] particularly where, as here, = Texas has no = connection=20 to the location, parties, or cause of the accident. Plaintiffs have = offered no=20 sound reason why Texas should be = compelled to=20 provide plaintiffs=97including one plaintiff unwilling to travel = here=97a physical=20 forum, court personnel, jurors, and other components of the Texas = judicial system.=20

=20 Burdening the Texas judicial = system with=20 cases like this one abuses the public interest, robs Cameron = County citizen-jurors and = litigants of=20 scarce court resources, and offends =93considerations of fundamental = fairness and=20 sensible and effective judicial administration.=94[17]

=20 =20 =20 =20 =20 =20 =20 _______________________________________

=20 =20 =20 =20 =20 =20 =20 Don R. Willett

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

Opinion = delivered:=20 November 2, 2007

^[1]=20 ___ S.W.3d at ___ (citing Gulf Oil Corp. v. Gilbert, 330=20 U.S. 501, 508 = (1947)).

^[2]=20 See Act of May 27, 1997, 75th Leg., R.S., ch.=20 424, =A7 1, sec. 71.051(a), 1997 Tex. Gen. Laws 1680, 1680, repealed = by Act=20 of June 2, 2003, 78th Leg., R.S., ch. 204, = =A7 3.09,=20 2003 Tex. Gen. Laws 847, 855. All references in this opinion to Texas Civil Practice & Remedies=20 Code section 71.051 are references to the 1997 version governing = this=20 dispute.

^[3]=20 See Act of May 27, 1997, 75th Leg., R.S., ch.=20 424, =A7 1, sec. 71.051(b), 1997 Tex. Gen. Laws 1680, 1680, amended = by Act=20 of June 2, 2003, 78th Leg., R.S., ch. 204, = =A7 3.04,=20 2003 Tex. Gen. Laws 847, 854.

^[4]=20 Tex. Civ. Prac. &=20 Rem. Code =A7=20 71.051(a).

^[5]=20 Act of June 2, 2003, 78th Leg., R.S., ch. = 204, =A7=A7=20 3.04, 3.09, 23.02(d), 2003 Tex. Gen. Laws 847, 854=9655, 899.

^[6]=20 I do not venture to comment on how such residence-based distinctions = would fare=20 if challenged on constitutional grounds, as the issue is not raised in = this=20 case.

^[7]=20 Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 = (Tex. 2006)=20 (=93Ordinarily, the truest manifestation of what legislators intended is = what=20 lawmakers enacted, the literal text they voted on.=94).

^[8]=20 RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 = (Tex. 1985) (internal quotation marks omitted) = (quoting=20 Simmons v. Arnim, 220 S.W. 66, 70 = (Tex. = 1920)).

^[9]=20 975 S.W.2d 593, 598 (Tex. 1998).

^[10] Tex. Civ. Prac. & Rem.=20 Code =A7=20 71.051(a).

^[11] Just one of the affidavits in the = record,=20 by a Mexican attorney and concerning Mexico=92s jurisdiction = over Pirelli,=20 is thirty-one pages long and has roughly three inches of attachments, in = Spanish=20 and English.

^[12] Tex. Civ. Prac. & Rem.=20 Code =A7=20 71.051(b).

^[13] In re Prudential Ins. Co., = 148=20 S.W.3d 124, 135 (Tex. 2004) (orig. = proceeding).

^[14] Tex. Civ. Prac. & Rem.=20 Code =A7 15.002(c) (foreclosing = appellate=20 review of a trial court=92s decision regarding transfer of a case); = see also=20 Garza v. Garcia, 137 S.W.3d 36, 38=9639 (Tex. = 2004).

^[15] Tex. Gov=92t = Code =A7 = 3101.004.

^[16] Smith Barney, 975 S.W.2d = at 597=20 (quoting =9121' Int=92l Holdings, Inc. v. Westinghouse Elec. = Corp., 856=20 S.W.2d 479, 486 (Tex. App.=97San Antonio 1993, no writ) (Peeples, J.,=20 concurring)).

^[17] Dow Chemical Co. v. = Alfaro, 786=20 S.W.2d 674, 703 (Tex. 1990) (Hecht, = J.,=20 dissenting) (quoting Adkins v. Chicago, R.I. & Pac. R.R., 301 = N.E.2d=20 729, 730 (Ill.=20 1973)).