                     In The
               Court of Appeals
 Sixth Appellate District of Texas at Texarkana


                    No. 06-12-00117-CV



   LIBERTY MUTUAL INSURANCE COMPANY, Appellant

                              V.

TRANSIT MIX CONCRETE & MATERIALS COMPANY, Appellee



          On Appeal from the 102nd District Court
                  Bowie County, Texas
              Trial Court No. 10C0001-102




         Before Morriss, C.J., Carter and Moseley, JJ.
          Memorandum Opinion by Justice Moseley
                                     MEMORANDUM OPINION
        Robert Smith, an employee of Texarkana Construction Company (Texarkana

Construction), was injured January 4, 2008, while working on a construction job at the

Texarkana Regional Airport, which is located in Arkansas, just across the Texas border. The

injury to Smith, a concrete finisher, occurred as he was holding the chute of a concrete mixer

truck owned and operated by Transit Mix Concrete and Materials Company (Transit Mix), which

was delivering concrete to the job site. Smith indicated that the driver of the truck negligently

caused his injuries when the driver failed to signal Smith before he unlocked the chute. Upon

being unlocked, the chute swung into Smith, dragging him into a nearby “concrete lay-down

machine,” causing injury to Smith’s back and left leg. At the time the injury occurred, Smith

was a Texas resident and Texarkana Construction Company was a Texas entity. Liberty Mutual

Insurance Company (Liberty Mutual), Texarkana Construction’s worker’s compensation insurer,

paid $91,155.39 in medical bills incurred by Smith as a result of the injuries he sustained.

        Two lawsuits were filed against Transit Mix. One was filed January 4, 2010, by Liberty

Mutual in Bowie County, Texas. 1 Subsequent to the filing of the suit by Liberty Mutual (after

the suit might have been barred by the applicable Texas statute of limitations but before recovery

would have been barred under Arkansas law), Smith filed a lawsuit in Miller County, Arkansas,

the county of the accident site where he was injured. 2 In March 2011, Transit Mix filed a motion


1
 In Texas, subrogation claims accrue “at the same time the employee’s action against the third party accrues.”
Guillot v. Hix, 838 S.W.2d 230, 235 (Tex. 1992). We do not express any opinion concerning when the subrogation
claim accrues under Arkansas law.
2
 We note Smith, faced with the denial of a continuance, later filed a non-suit and then refiled the lawsuit within a
year. The parties agree that Smith has complied with Arkansas procedural law including the statute of limitations
and the permissible refiling within a year after a nonsuit.
                                                         2
in Liberty Mutual’s Texas suit seeking to have the suit dismissed pursuant to the doctrine of

forum non conveniens. After pleading responses and after a hearing, the trial court granted

Transit Mix’s motion and dismissed Liberty Mutual’s suit. It is from that order of dismissal that

Liberty Mutual has appealed.

        “‘The doctrine of forum non conveniens is an equitable doctrine exercised by courts to

resist imposition of an inconvenient jurisdiction on a litigant, even if jurisdiction . . . would not

violate due process.’” Exxon Corp. v. Choo, 881 S.W.2d 301, 302 n.2 (Tex. 1994) (quoting

Sarieddine v. Moussa, 820 S.W.2d 837, 839 (Tex. App.—Dallas 1991, writ denied)).

        On appeal, Liberty Mutual maintains that the dismissal of its lawsuit was error claiming

that (1) Transit Mix’s motion to dismiss was not timely, (2) Arkansas does not provide an

adequate forum to adjudicate the claims, (3) Texas has the most significant contacts with the case

and is, therefore, the proper forum, (4) Bowie County, Texas, (not Miller County, Arkansas) has

the dominant jurisdiction, and (5) Texas Civil Practice and Remedies Code Section 71.051(b)

prohibits the dismissal.

I.      Do Statutory or Common Law Rules Dictate Application of Forum Non
        Conveniens?

        The parties disagree as to the rules which govern the disposition of the question in this

case. One side claims that statutory rules govern the forum non conveniens issue while the other

maintains that common law rules apply. 3 Section 71.051 of the Texas Practice and Remedies

Code applies to personal injury and wrongful death actions. TEX. CIV. PRAC. & REM. CODE ANN.

3
 As noted by the Texas Supreme Court, Texas statutory forum non conveniens has “‘deep roots in the common
law.’” Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 32 (Tex. 2010) (per curiam) (quoting In re
Pirelli Tire, L.L.C., 247 S.W.3d 670, 675 (Tex. 2007) (orig. proceeding) (plurality opinion)).
                                                    3
§ 71.051 (West 2008). On the one hand, Liberty Mutual argues that this claim should be

governed by Section 71.051 because the underlying claim is a personal injury claim; on the other

hand, Transit Mix argues that since the personal injury claim has been filed in Arkansas, this

lawsuit does not concern a personal injury and the common law should apply.

           Transit Mix concedes that Liberty Mutual’s claim is a derivative claim. “There is but one

cause of action for an employee’s injuries . . . .” Franks v. Sematech, Inc., 936 S.W.2d 959, 960

(Tex. 1997) (per curiam) (concluding employee could intervene even after limitations had run).

Although the insurance carrier can assert its subrogation claim independently of the employee,

its claim is still derivative of the employee’s claim. Id. Thus, in this case, there is only one

cause of action: Smith’s personal injury cause of action. Although Liberty Mutual’s subrogation

claim can be brought independently, its claim would not exist apart from the injury and its ability

to recover is derivative of the personal injury cause of action.

           Because Liberty Mutual’s subrogation claim is derivative of Smith’s personal injury

cause of action, this lawsuit is a personal injury lawsuit and is subject to the rules promulgated

by statute, 4 not by common law rules.

II.        Findings of Fact Are Implied

           We note that although Section 71.051 requires the trial court to issue findings of fact and

conclusions of law, see TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(f), the record provided to

us contains no such findings and conclusions. It also appears that neither a request for findings




4
    TEX. CIV. PRAC. & REM. CODE ANN. § 71.051.
                                                    4
of fact nor a request for past-due findings of fact was filed. 5 Therefore, any error regarding the

trial court’s failure to file findings of fact has been waived. See Curtis v. Comm’n for Lawyer

Discipline, 20 S.W.3d 227, 232 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Betts v. Reed,

165 S.W.3d 862, 867 (Tex. App.—Texarkana 2005, no pet.). In the absence of findings of fact

and conclusions of law, we imply that the trial court found all facts necessary to support its

decision so long as they are also supported by the evidence. BMC Software Belg., N.V. v.

Marchand, 83 S.W.3d 789, 795 (Tex. 2002); see Betts, 165 S.W.3d at 867. Even so, the validity

of implied findings may still be challenged on appeal for want of legal and factual sufficiency

when the appellate record includes the reporter’s and clerk’s records. BMC Software, 83 S.W.3d

at 795; Betts, 165 S.W.3d a 867.

III.    The Timeliness of Transit Mix’s Motion to Dismiss Was Not Preserved for Review

        Liberty Mutual complains, in its first issue, that Transit Mix failed to file its motion to

dismiss based on forum non conveniens in a timely manner, claiming that Texas Civil Practice

and Remedies Code Section 71.051(d) and Rule 86 of the Texas Rules of Civil Procedure

mandate that Transit Mix’s motion be filed within 180 days of Transit Mix’s answer. Transit

Mix responds that any such error has not been preserved for appellate review. 6 Because Liberty

Mutual failed to raise this issue at the trial level, we determine that it failed to preserve this error

for our review.

5
 To the extent the trial court’s order can be construed as containing findings of fact and conclusions of law, we
cannot consider them. Findings of fact rendered in the body of a judgment cannot be considered on appeal. See
TEX. R. CIV. P. 299a (“Findings of fact shall not be recited in a judgment.”); Sherer v. Sherer, 393 S.W.3d 480, 484
n.7 (Tex. App.—Texarkana 2013, pet. denied).
6
 Transit Mix argues further that because the motion was brought under the common law, the motion is timely. As
discussed above, the motion was governed by statutory law.
                                                         5
         In its reply brief, Liberty Mutual argues that its failure to perfect error is not fatal to its

complaint because the error is “systemic.” It goes on to urge our adoption of the three categories

of error preservation adopted by the Texas Court of Criminal Appeals in Marin v. State, 851

S.W.2d 275, 279 (Tex. Crim. App. 1993), modified on other grounds by Cain v. State, 947

S.W.2d 262, 264 (Tex. Crim. App. 1997) (Except for structural errors, “no error . . . is

categorically immune to a harmless error analysis.”). Liberty Mutual espouses the proposition

that this Court applied criminal error preservation standards to a civil case in Suggs v. Fitch, 64

S.W.3d 658 (Tex. App.—Texarkana 2001, no pet.), wherein this Court held that the failure to

request the jury to be polled waived the error. Liberty Mutual, based on its interpretation of

Suggs, argues that timeliness is a waivable-only right because it is a mandatory statutory

requirement. 7

         We disagree that Suggs purports to adopt standards set out by the Texas Court of

Criminal Appeals for criminal cases. Suggs relies entirely on civil cases and applies civil

standards, the only support to Liberty Mutual’s argument being that this Court in Suggs used the

word “waiver.”        Courts, when discussing error preservation, sometimes employ the word

“waiver” as a synonym for both “forfeit” and the phrase “failure to preserve error.” Whereas

Marin assigned specific and distinct meanings to waiver and forfeit, courts still occasionally use

the words synonymously—particularly in the context of civil cases where the Marin categories


7
 We note that many mandatory statutory requirements can be forfeited under the Marin error preservation rules. See
Marin, 851 S.W.2d at 279 (“All but the most fundamental rights are thought to be forfeited if not insisted upon by
the party to whom they belong” including “[m]any constitutional rights.”). In the criminal context, absolute or
“systemic” rights are generally limited to such issues as legal sufficiency, jurisdictional errors, and separation of
powers issues. See Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002); see also Moff v. State, 131
S.W.3d 485, 489 (Tex. Crim. App. 2004).
                                                         6
are inapplicable. In Suggs (as well as the cases cited as authority in it), the Court merely uses

“waiver” as a synonym for “forfeit.” See id. at 660. We decline to extend the Marin categories

of error preservation to civil cases not involving juvenile delinquency determinations. 8

        Liberty Mutual alternatively argues that the error is fundamental. We note that Texas

jurisprudence significantly limits the fundamental error doctrine. Rittenhouse v. Sabine Valley

Ctr. Found., Inc., 161 S.W.3d 157, 166 (Tex. App.—Texarkana 2005, no pet.). “Fundamental

error survives today in those rare instances in which the record shows the court lacked

jurisdiction or that the public interest is directly and adversely affected as that interest is declared

in the statutes or the Constitution of Texas.” Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982)

(per curiam); see Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006). Liberty

Mutual’s complaints regarding this issue fail to affect a public interest so significant that

fundamental error review has been recognized. See Ramsey v. Dunlop, 205 S.W.2d 979, 984

(Tex. 1947) (recognizing election contest as example of error directly and adversely affecting

interest of public generally). “Defects in procedure will rarely constitute fundamental error . . .

.” Estate of Pollack v. McMurrey, 858 S.W.2d 388, 395 (Tex. 1993) (Gonzalez, J., concurring).

Because the face of the record reflects neither a lack of jurisdiction nor a direct and adverse

effect on a significant public interest, we reject Liberty Mutual’s argument that the error was

fundamental.




8
 We note that the Texas Supreme Court has utilized the Marin error preservation categories in juvenile delinquency
cases characterized as quasi-criminal. See In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999).
                                                        7
       Liberty Mutual failed to preserve error, if any, for appellate review concerning whether

the motion for forum non conveniens was timely filed. See TEX. R. APP. P. 33.1. We overrule

Liberty Mutual’s first issue.

IV.    Arkansas Has the Most Significant Relationship

       In its third issue, Liberty Mutual argues that Texas Law should apply because at the time

that Smith suffered the injury giving rise to these claims, all of the interested parties were Texas

residents. Transit Mix, consistent with its trial argument, insists that a forum non conveniens

argument does not require a decision regarding which State’s law applies to this case, but it

argues alternatively that Arkansas has a greater interest than Texas. Transit Mix emphasizes that

the injury occurred in Arkansas and that Smith is now an Arkansas resident having moved from

Texas since the incident occurred. Neither party argues that Texas law should apply to only part

of the lawsuit while Arkansas law applies to the rest of the lawsuit. Therefore, we will limit our

analysis to whether Texas law should govern the entire case.

       We disagree with Transit Mix that this issue is a non sequitor that does not require

resolution in a forum non conveniens analysis. The Texas Supreme Court has recognized a

relationship between choice of law, on the one hand, and forum non conveniens, on the other.

See Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671, 680–82 (Tex. 2006) (“On occasion,

comity and choice of law may suggest that a Texas court should dismiss a claim in favor of a

foreign forum under principles of forum non conveniens.”). Further, the fifth statutory factor of

Section 71.051 requires consideration of whether the forum is at home with the law that governs

the case and, therefore, whether a choice of law analysis is necessary. See Schippers v. Mazak

                                                 8
Props., Inc., 350 S.W.3d 294, 300 (Tex. App.—San Antonio 2011, pet. denied); see also TEX.

CIV. PRAC. & REM. CODE ANN. § 71.051(b)(5).

       Unless the contacts raise disputed issues of fact, a choice of law analysis is a question of

law to be reviewed de novo. Sonat Exploration Co. v. Cudd Pressure Control, Inc., 271 S.W.3d

228, 231 (Tex. 2008); see Minnesota Mining & Mfg. Co. v. Nishika Ltd., 955 S.W.2d 853, 856

(Tex. 1996) (per curiam) (question of law to be reviewed de novo); Vanderbilt Mortg. & Fin.,

Inc. v. Posey, 146 S.W.3d 302, 313 (Tex. App.—Texarkana 2004, no pet.). Giving deference to

any implied findings of fact, we review this issue de novo.

       Despite the fact that the injuries were sustained in another state, a personal injury lawsuit

can be tried in Texas. The Texas Civil Practice and Remedies Code specifically permits such a

lawsuit if the law of Texas or the foreign state provide a cause of action, the action is begun

within the time provided by Texas law, and the action is begun within the time provided by the

laws of the foreign state. TEX. CIV. PRAC. & REM. CODE ANN. § 71.031 (West 2008); Owens

Corning v. Carter, 997 S.W.2d 560, 573 (Tex. 1999) (Section 71.031 is “essentially a codified

choice-of-law rule governing the timeliness of actions.”). In deciding which state’s law should

apply, we apply Texas’ choice of law rules.         See TEX. CIV. PRAC. & REM. CODE ANN.

§ 71.031(b).

       Historically, a jurisdiction’s body of laws was thought to have no effect outside its own

territory, but courts would recognize foreign law, either under the doctrine of comity or through

a theory of “vested rights.” See Slater v. Mexican Nat’l R.R. Co., 194 U.S. 120, 126 (1904); Cal.

v. Copus, 309 S.W.2d 227, 229–33 (Tex. 1958). Texas courts have abandoned the lex loci

                                                9
delecti (application of the law prevailing where the injury occurred) approach in favor of the less

restrictive approach combining the methodologies of a governmental policy analysis and the

“most significant relationship” approach embodied in the Second Restatement of Conflict of

Laws. See Gutierrez v. Collins, 583 S.W.2d 312, 314 (Tex. 1979); RESTATEMENT (SECOND) OF

CONFLICT OF LAWS § 6 (1971); see also Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex.

2000).

         A preliminary step in deciding choice of law is to determine whether the laws of the

various jurisdictions conflict. Posey, 146 S.W.3d at 313; see Sonat Exploration Co. v. Cudd

Pressure Control, Inc., 202 S.W.3d 901, 905 (Tex. App.—Texarkana 2006), aff’d by, 271

S.W.3d 228, 231 (Tex. 2008). Liberty Mutual and Transit Mix agree that there is a difference in

the laws of the two states because Arkansas courts apply the “made whole” doctrine to all

subrogation claims 9 while Texas worker’s compensation claims are governed by statutes which

provide that the insurance carrier’s subrogation interest will be paid first and the injured worker

receives the remainder. See TEX. LAB. CODE ANN. § 417.001(b) (West 2006). We agree with

the parties that the laws of Texas and Arkansas differ to the effect that the outcome to the parties

could be substantially different from one state to the other.




9
 The parties agree that Arkansas applies the “made whole” doctrine to subrogation claims. See Riley v. State Farm
Mut. Auto. Ins. Co., 2011 Ark. 256 at 12, 381 S.W.3d 840, 848 (“Absent an agreement or settlement between the
parties, an insurer’s right to subrogation does not accrue until there has been a legal determination by a court that the
insured has been made whole.”); Franklin v. Healthsource of Ark., 328 Ark. 163, 169, 942 S.W.2d 837, 840 (1997)
(“no distinction need be made between equitable and conventional rights of subrogation”); Shelter Mut. Ins. Co. v.
Bough, 310 Ark. 21, 28, 834 S.W.2d 637, 641 (1992) (“[W]hile the general rule is that an insurer is not entitled to
subrogation unless the insured has been made whole for his loss, the insurer should not be precluded from
employing its right of subrogation when the insured has been fully compensated and is in a position where the
insured will recover twice for some of his or her damages.”).
                                                          10
        Next, we should determine whether the “most significant relationship” lies with Texas or

with Arkansas. For personal injury lawsuits, the “most significant relationship” test involves

three levels. The first level, as stated in Section 6 of the Restatement of Conflict of Laws,

involves the general test:       the weighing of the competing policy interests of the different

jurisdictions. Posey, 146 S.W.3d at 314. Section 6 requires consideration of

        (a)     the needs of the interstate and international systems,
        (b)     the relevant policies of the forum,
        (c)     the relevant policies of other interested states and the relative interests of
        those states in the determination of the particular issue,
        (d)     the protection of justified expectations,
        (e)     the basic policies underlying the particular field of law,
        (f)     certainty, predictability and uniformity of result, and
        (g)     ease in the determination and application of the law to be applied.

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6) (1971); see Gutierrez, 583 S.W.2d at 319

(adopting RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6).

        The second level of analysis 10 provides additional guidance concerning a specific area of

law. Posey, 146 S.W.3d at 314. The case before us would involve the law of torts. While

Section 6 “sets out the general principles by which the more specific rules are to be applied,”

Section 145 provides a more specific rule applicable to a tort case. Gutierrez, 583 S.W.2d at

318–19. Section 145 emphasizes the following four factors:

        (a)    the place where the injury occurred,
        (b)    the place where the conduct causing the injury occurred,
        (c)    the domicil[e], residence, nationality, place of incorporation and place of
        business of the parties, and
10
  Although Liberty Mutual is a worker’s compensation carrier, Liberty Mutual has not argued employer immunity is
an issue. See Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 206 (Tex. 2000) (considering Section 184 of the
Second Restatement of Conflict of Laws when employer immunity was an issue). Although Liberty Mutual cites
Hughes, it only cites Hughes for the Section 6 general factors and does not discuss the worker’s compensation
section of the Hughes opinion.
                                                      11
            (d)     the place where the relationship, if any, between the par[ties] is centered.

Id. at 319 (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145).

            Another level of analysis provides guiding principles for a specific context within the

area of law.         For personal injury lawsuits, this level is governed by Section 146 of the

Restatement. See Enter. Prods. Partners, L.P. v. Mitchell, 340 S.W.3d 476, 480 (Tex. App.—

Houston [1st Dist.] 2011, pet. abated); Ford Motor Co. v. Aguiniga, 9 S.W.3d 252, 260 (Tex.

App.—San Antonio 1999, pet. denied). Section 146 provides:

            In an action for a personal injury, the local law of the state where the injury
            occurred determines the rights and liabilities of the parties, unless, with respect to
            the particular issue, some other state has a more significant relationship under the
            principles stated in § 6 to the occurrence and the parties, in which event the local
            law of the other state will be applied.

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 146.

            While Liberty Mutual stresses that the place the injury occurred is the sole contact with

Arkansas, Transit Mix contravenes that by urging us to consider the fact that Smith, the injured

party, now resides in Arkansas. We disagree with Transmit Mix on this point. “[I]t is the

plaintiff’s residence at the time of the injury, not the time of filing, that is relevant.” Tullis v.

Georgia-Pacific Corp., 45 S.W.3d 118, 127 (Tex. App.—Fort Worth 2000, no pet.). At the time

of the injury, Smith was a Texas resident and Texarkana Construction was a Texas corporation.

Transit Mix had a place of business in Texas. Finally, as noted by Liberty Mutual, the injury

occurred while Smith was working for a Texas company and Smith obtained benefits under a

Texas worker’s compensation policy which was administered in Texas. 11 We agree with Liberty


11
     We do note that Smith received medical treatment in both Texas and Arkansas.
                                                          12
Mutual that the conduct causing the injury and the injury itself were the sole contacts with

Arkansas.

          In Gutierrez, the Texas Supreme Court observed that when two residents of Texas are

involved in an accident in another state, the law of Texas may apply. Gutierrez, 583 S.W.2d at

319 (remanding personal injury suit for accident in Mexico between two Texas residents for

consideration of the most significant relationship test); see also Robertson v. Estate of McKnight,

609 S.W.2d 534, 537 (Tex. 1980) (concluding New Mexico law should apply although accident

occurred in Texas). More recently, the Texas Supreme Court has noted that Texas has an interest

in protecting resident defendants from “undue liability and excessive litigation.” Torrington Co.,

46 S.W.3d at 849–50 (Texas law should apply to military helicopter crash).

          Nevertheless, the Texas Supreme Court has observed that “the number of contacts with a

particular state is not determinative.” Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421

(Tex. 1984). The analysis of the contacts should be qualitative rather than quantitative. Minn.

Mining & Mfg. Co., 955 S.W.2d at 856; see Duncan, 665 S.W.2d at 421; Posey, 146 S.W.3d at

316. As noted by the Texas Supreme Court in Gutierrez, the application of Texas law whenever

Texas residents are involved is not a foregone conclusion. Gutierrez, 583 S.W.2d at 319.

          While the only two contacts with Arkansas are the place of the injury and the conduct

causing the injury, Section 146 demonstrates that these are quite important factors. The Texas

Supreme Court recognized in Gutierrez that the presumption of Section 146 can be overcome

when both parties are Texas residents, but the Supreme Court prescribed no bright-line rule to

follow.

                                                13
          Although Liberty Mutual argues that everyone involved in the controversy was a Texas

resident at the time of the injury, the record does not entirely support this claim. The record

supports that at that time, Smith was a Texas resident and Texarkana Construction was a Texas

corporation with a primary place of business in Texas. In contrast, although both are authorized

to conduct business in the State of Texas, Liberty Mutual and Transit Mix 12 are both Delaware

corporations. While Texas has an interest in protecting foreign corporations with places of

business in Texas, such an interest may not be as intense as the desire to provide protection to

native Texas corporations as expressed in Torrington, 46 S.W.3d at 850. The fact that Liberty

Mutual and Transit Mix are Delaware corporations decreases Texas’ interest to some small

degree.

          Unlike the automobile accident in Gutierrez, 583 S.W.2d at 319, the airplane crash in

Robertson, 609 S.W.2d at 537, or the helicopter crash in Torrington, 46 S.W.3d at 850, the

injury-causing accident in this case occurred during construction work on a public facility. A

state’s interest in car and airplane accidents which do not involve any of that state’s citizens will

be fleeting and fortuitous at best and are somewhat transient in nature. A state’s interest in an

accident at a permanently based public facility that will service thousands of that state’s citizens

may be more profound and permanent. Because this accident occurred during construction on

the Texarkana Regional Airport on the Arkansas side of the State border, Arkansas will likely

have a greater interest in its disposition than it would in a car accident or aircraft crash.


12
 At the hearing, the parties argued Transit Mix was “situated in Dallas,” was “[a] Texas defendant,” and “is a Texas
corporation.” The pleadings, though, establish that both Liberty Mutual and Transit Mix are Delaware corporations
authorized to conduct business in Texas.
                                                        14
            While Arkansas public policy in this area differs from Texas public policy, we note that

the difference is not severe.             Texas recognizes three varieties of subrogation:                   equitable,

contractual, and statutory. Fortis Benefits v. Cantu, 234 S.W.3d 642, 648 (Tex. 2007). Texas

applies the “made whole” rule to equitable subrogation. Id. at 650 (the terms of the contract

govern contractual subrogation). The Texas Legislature recently enacted a law which governs

the apportionment of recovery between the injured party and the insurance subrogee when the

recovery is insufficient to make the injured party whole. See Act of May 17, 2013, 83d Leg.,

R.S., H.B. 1869, § 1 (to be codified at TEX. CIV. PRAC. & REM. CODE ANN. § 140). While we

note that this bill exempts worker’s compensation claims, under certain circumstances, this bill

will bring Texas’ subrogation recoveries closer to the “made whole” doctrine. Because the

differences between each state’s public policy are not profound, the Texas interest in protecting

Texas companies from undue liability is not terribly compelling.

            Additionally, Section 6 recognizes the protection of justified expectations as a factor to

be considered. Texarkana is a community which lies astride the Texas/Arkansas border; in such

a community, there is a reasonable expectation that most companies will conduct business in

both states. 13 Thus, any reasonable insurance carrier could foresee the possibility that its client

would conduct business in multiple states and adjust rates or terms accordingly. Due to the

nature of a border community such as Texarkana, we do not believe that this case presents a

circumstance where the application of Arkansas law will expose a Texas resident to undue

liability. Because this liability would be a reasonable expectation, it is not an undue liability.


13
     We take further judicial notice of Texarkana’s close proximity to the Oklahoma and Louisiana borders.
                                                           15
       As recognized by Section 146 of the Second Restatement of Conflict of Laws, Arkansas

(as the place of the injury and where it is alleged that tortious conduct giving rise to the injury

occurred) has a significant interest. This interest is sufficient to counteract the Texas interest in

protecting one Texas corporation and two foreign corporations conducting business in a Texas

border community. We conclude that Arkansas law should apply.

V.     No Abuse of Discretion in Dismissal

       In its second issue, Liberty Mutual argues that the trial court erred in granting the forum

non conveniens motion because Arkansas is not an adequate forum. Since 1993, personal injury

lawsuits have been governed by a forum non conveniens statute that requires a trial court to

consider the following six factors:

               (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 ANN. § 71.051(b). “The statute does not mandate that a movant

prove each factor or that each factor must weigh in favor of dismissal to require a motion to be

granted.” In re Gen. Elec. Co., 271 S.W.3d 681, 687 (Tex. 2008).




                                                 16
        We note there is a substantial overlap between statutory forum non conveniens caselaw

and common law forum non conveniens caselaw, despite the fact that the statute has “‘deep roots

in the common law.’” Quixtar, 315 S.W.3d at 32 (quoting Pirelli Tire, 247 S.W.3d at 675).

Further, Texas Courts “regularly consider United States Supreme Court precedent in both our

common law and statutory forum non conveniens cases.” Id.

        The Texas Supreme Court has “decline[d] to establish a formulaic application for a trial

court’s forum non conveniens determination.” Id. at 35. A trial court’s decision about whether

to dismiss a case on forum non conveniens grounds is reviewed for an abuse of discretion. Gen.

Elec., 271 S.W.3d at 685.           A trial court “abuses its discretion if its decision is arbitrary,

unreasonable, or without reference to guiding principles.” Id.

        Both Transit Mix and Liberty Mutual erroneously argue that Transit Mix had the burden

of proof on a forum non conveniens. As noted below, Transit Mix argues this burden shifted to

Liberty Mutual concerning whether Arkansas was an adequate forum. All of the cases cited are

common law forum non conveniens cases and are, therefore, clearly distinguishable. 14 The

Texas Supreme Court has held that, unlike the version of the statute in effect prior to 2003, the

current version of the forum non conveniens statute “does not contain language placing the

burden of proof on a particular party in regard to the factors.” Id. at 687; see In re Ensco

Offshore Int’l Co., 311 S.W.3d 921, 927 (Tex. 2010) (per curiam). The court explained:

        [t]he statute simply requires the trial court to consider the factors, and it must do
        so to the extent the factors apply. To the extent evidence is necessary to support

14
  Transit Mix cites Quixtar, 315 S.W.3d at 31 (noting general common law rule is movant has a “heavy burden” but
that a nonresident plaintiff’s choice of forum deserves less deference). Liberty Mutual cites Sinochem International
Co. v. Malaysia International Shipping Corp., 549 U.S. 422, 430 (2007), and Moussa, 820 S.W.2d at 841.
                                                        17
        the positions of the parties, the trial court must base its findings and decision on
        the weight of the evidence, and certainly is entitled to take into account the
        presence or absence of evidence as to some issue or position of a party.

Gen. Elec., 271 S.W.3d at 687. We conclude that neither party had the burden of proof.

        We note that at the hearing, the trial court’s stated reason for granting the motion was that

Smith “chose Arkansas for whatever reason.” Even so, the discussion at the hearing, while not

specifically referencing the factors, included issues pertinent to most of the factors. Although a

trial court has no discretion in determining what the law is or applying the law to the undisputed

or conclusively established facts, 15 a trial court does not abuse its discretion, even when the

court’s stated reason for the decision is wrong, if the result is correct under any theory of law. 16

We further note that in its written order, the trial court referenced balancing the parties’ private

interests and the state’s public interests.

        Although Liberty Mutual only explicitly challenges the Second and Fifth factors, there is

no requirement that every factor weigh in favor of dismissal.                    Since all factors must be

considered by the trial court, we will consider all of the factors in determining whether the trial

court abused its discretion.




15
 See In re Dillard Dep’t Stores, Inc., 198 S.W.3d 778, 781 (Tex. 2006) (orig. proceeding) (per curiam); Griffin v.
Birkman, 266 S.W.3d 189, 196 (Tex. App.—Austin 2008, pet. denied); Landon v. Jean-Paul Budinger, Inc., 724
S.W.2d 931, 935 (Tex. App.—Austin 1987, no writ).
16
 Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 411 (Tex. App.—Dallas 2006, pet. denied);
Landon, 724 S.W.2d at 935.
                                                       18
VI.     Statutory Forum Non Conveniens

        A.       Factors 1 and 2:

        The first two statutory factors concern whether Arkansas is an adequate forum. Gen.

Elec., 271 S.W.3d at 687. Liberty Mutual does not contest that this action can be tried in

Arkansas. “An alternate forum is one where the defendant is amenable to process.” Ensco

Offshore Int’l Co., 311 S.W.3d at 924. It is uncontested that Transit Mix is amenable to process

in Arkansas and has appeared in Smith’s lawsuit pending in Arkansas.

        Transit Mix argues that Liberty Mutual had the burden to establish that Arkansas was not

an adequate forum. 17 We have not been directed to any authority, nor are we aware of any,

holding that the non-movant has the burden to prove the alternative forum is inadequate. As

discussed above, the Texas Supreme Court has held that neither party bears the burden in

statutory forum non conveniens cases. See Gen. Elec., 281 S.W.3d at 687.

        A forum is not inadequate merely because the law is less favorable to one party or the

other. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981). Because of the complexity of

a “comparative analysis of the procedures, rights, and remedies” available in two forums, the

Texas Supreme Court has held such an analysis should only be given weight when the alternative



17
  Transit Mix cites Direct Color Services, Inc. v. Eastman Kodak Co., 929 S.W.2d 558, 564 (Tex. App.—Tyler
1996, writ denied), superseded by statute as stated in Adams v. Baxter Healthcare Corp., 998 S.W.2d 349, 356 (Tex.
App.—Austin 1999, no pet.) (noting Direct Color Services predates the 1993 adoption of Section 71.051),
Vaz Borralho v. Keydril Co., 696 F.2d 379, 391 (5th Cir. 1983), overruled on other grounds by In re Air Crash
Disaster near New Orleans, 821 F.2d 1147, 1163 n.25 (5th Cir. 1987), and Yoroshii Investments (Mauritius) PTE.
Ltd. v. BP International Ltd., 179 S.W.3d 639, 643 (Tex. App.—El Paso 2005, pet. denied) (citing Sarieddine, 820
S.W.2d at 841). Regardless of the extent these cases support Transit Mix’s position, all of these cases are common
law forum non conveniens rather than statutory forum non conveniens. Because the Texas Supreme Court has
explicitly held neither party has a burden of proof in statutory forum non conveniens cases, we decline to adopt any
common law standard imposing a burden on Liberty Mutual.
                                                        19
forum “would in substance provide no remedy at all.” Gen. Elec., 271 S.W.3d at 688; see Ensco

Offshore Int’l Co., 311 S.W.3d at 924.

        According to Liberty Mutual, Arkansas is not an adequate forum because it applies the

“made whole” rule to contractual subrogation. Liberty Mutual argues, citing Section 417.001(b)

of the Texas Labor Code, that the first-money reimbursement scheme is crucial to the Texas

worker’s compensation system because it reduces costs for carriers. Going further, Liberty

Mutual asserts that the Arkansas “made whole” doctrine prevents it from having any remedy in

Arkansas courts. Liberty Mutual believes that Arkansas law would permit Smith to settle for an

amount less than his actual damages and thereby avoid having to reimburse Liberty Mutual for

his medical bills. 18 Because Arkansas provides some remedy, it is not necessary for us to

conduct a comprehensive analysis.

        While Arkansas law may be less favorable to Liberty Mutual than Texas law, Arkansas

law does provide a remedy. If the recovery is sufficient to make Smith whole, Liberty Mutual

can recover under Arkansas law. The mere fact that the alternative forum would provide a lesser

recovery does not prevent the alternative forum from providing an adequate remedy. See Berg v.

AMF Inc., 29 S.W.3d 212, 217 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (factor not given

substantial weight when foreign law provides “some recovery”). We conclude that Arkansas is

an adequate forum.




18
  Transit Mix argues Liberty Mutual has greatly exaggerated the differences between Texas and Arkansas
subrogation law. We do not express any opinion concerning whether Liberty Mutual’s interpretation is a correct
interpretation of Arkansas law.
                                                     20
        B.       Factor 3: Trial in Arkansas Causes No Substantial Injustice to Liberty
                 Mutual

        Liberty Mutual does not contest this factor. In deciding this factor, the Texas Supreme

Court has considered increased travel time, the availability of witnesses, and whether there is

compulsory process to secure the attendance of witnesses. See Ensco Offshore Int’l Co., 311

S.W.3d at 925; Gen. Elec., 271 S.W.3d at 689. Unlike Ensco Offshore International, 311

S.W.3d at 926 (considering travel time between Australia, Singapore, and Dallas), this is not a

case that would force Liberty Mutual to travel a significant distance to litigate in the alternative

forum. We take judicial notice that Bowie County, Texas, and Miller County, Arkansas, are

adjacent counties. 19 Liberty Mutual concedes the costs of litigating in Miller County, Arkansas,

will not significantly differ from the cost of litigating only a few miles away in Bowie County,

Texas. It is uncontested that witnesses will be available in Arkansas and a compulsory process

can secure their attendance.

        C.       Factor 4: Arkansas Can Exercise Jurisdiction Over All the Defendants

        It is uncontested that Arkansas can exercise jurisdiction over all the defendants. Transit

Mix has appeared in the Arkansas suit and at least some discovery has been conducted in that

suit.




19
 We also take judicial notice that the City of Texarkana is located in both Bowie County, Texas, and Miller County,
Arkansas.
                                                        21
            D.       Factor 5: Arkansas’ Interests Predominate

            Liberty Mutual claims that Texas has a greater public interest in this litigation than

Arkansas. In deciding which State’s interests predominate, the Texas Supreme Court has adopted

the common law Gulf Oil 20 factors:

            Generally, the public interest factors to be considered are administrative
            difficulties related to court congestion, burdening the people of a community with
            jury duty when they have no relation to the litigation, local interest in having
            localized controversies decided at home, and trying a case in the forum that is at
            home with the law that governs the case. See Gulf Oil, 330 U.S. at 508–09. The
            private interest considerations generally are considered to be the ease of access to
            proof, the availability and cost of compulsory process, the possibility of viewing
            the premises, if appropriate, and other practical problems that make trial easy,
            expeditious, and inexpensive. Id. at 508; see Pirelli, 247 S.W.3d at 676.

Gen. Elec., 271 S.W.3d at 691 (statutory forum non conveniens); see Quixtar, 315 S.W.3d at 32

(applying Gulf Oil factors to common law forum non conveniens).

            The first three public interest factors weigh neither for nor against dismissal. The record

contains no evidence or arguments concerning court congestion or burdening the people of a

community with jury duty when they have no relation to the litigation. As judicially noted

above, Bowie County and Miller County are adjacent counties. The largest city in both counties

is Texarkana, which (though having separate municipal governments) is a single city straddling

the border between the two States.                  Since both forums are essentially part of the same

community, the local interest factor weighs neither for nor against dismissal.

            Liberty Mutual argues that this lawsuit should be litigated in Texas courts because Texas

law should apply. As discussed above, we have determined Arkansas law should apply to this


20
     Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
                                                            22
case. Therefore, the factor that the court trying a case is at home with the law that governs the

case favors dismissal.

         The private interest considerations weigh slightly in favor of dismissal. Liberty Mutual

concedes that the Bowie County and Miller County Courthouses are located only a few miles

apart 21 and that the costs of litigation will be identical.                Liberty Mutual does argue that

enforcement of the judgment will be easier in Texas because Transit Mix is a Texas corporation.

At trial, Transit Mix argued that the enforcement in “Arkansas is as good as in Texas.” The

record is devoid of any evidence supporting either claim. As noted above, neither party has the

burden in a statutory forum non conveniens motion.

         The trial court did not abuse its discretion in concluding Arkansas’ interests predominate.

         E.       Factor 6: The Dismissal Would Prevent Duplication of Litigation

         Transit Mix emphasizes in its brief that, unless the motion is granted, it will be required

to defend two lawsuits concerning the same subject matter.                        Liberty Mutual argues that

subrogation claims, while derivative, can be asserted independently, see Franks v. Sematech,

Inc., 936 S.W.2d 959, 960 (Tex. 1997) (per curiam), and that it has a right to bring its

subrogation claim independently in Texas.

         Liberty Mutual cites In re CVA General Contractors., Inc., 267 B.R. 773, 782 (Bankr.

W.D. Tex. 2001), for the proposition that “the subrogee assumes the status as the real party in

interest while the subrogor’s interest becomes nominal.” In that case, the court was not deciding

21
 We take judicial notice that the Bowie County District Court handles some nonjury matters in the Bi-State Justice
Building located approximately four blocks from the Miller County Courthouse. In fact, the Bi-State Justice
Building, the building in which this Court sits, is located partially in Bowie County, Texas, and partially in Miller
County, Arkansas.
                                                         23
a dispute concerning whether the subrogee or the subrogor could control the course of the

litigation. Rather, the court was merely holding that the subrogee could proceed despite the

subrogor no longer existing, having been dissolved by virtue of the Chapter 7 bankruptcy

proceeding. Id. Such a situation is clearly distinguishable from a disagreement between the

subrogee and subrogor concerning the course of litigation.

       The Texas Supreme Court has held that “[t]here is but one cause of action for an

employee’s injuries, and it belongs to the employee.” Franks, 936 S.W.2d at 960 (concluding

employee could intervene even after limitations had run). Liberty Mutual has provided us with

no authority that the injured worker is required to respect the worker’s compensation carrier’s

choice of forum. It is not necessary for us to determine the extent to which an injured employee

can disregard the wishes of the worker’s compensation carrier. We reject Liberty Mutual’s

argument that an injured employee must file his or her lawsuit in the forum desired by the

worker’s compensation carrier.

       The Texas Supreme Court has recognized that the ability to resolve all claims in one trial

favors the granting of a forum non conveniens motion. See Ensco Offshore Int’l Co., 311

S.W.3d at 925. The trial court emphasized duplication of litigation at the hearing, and we concur

with the opinion of the trial court that this factor is significant. Transit Mix should not be forced

to undergo two discovery processes and two trials or be exposed to potentially inconsistent

verdicts in two different states. The last factor favors a dismissal.

       The doctrine of forum non conveniens is intended to prevent the imposition of an

inconvenient jurisdiction on a litigant when the public and private interests at issue warrant a

                                                 24
different forum. See Yoroshii Invs. (Mauritius) PTE. Ltd., 179 S.W.3d at 643. All of the factors

which are considered are deemed to be either neutral or weigh in favor of a dismissal. As argued

by Transit Mix, this balancing is not formalistic, and we must grant deference to the trial court.

The accident occurred in Arkansas, Arkansas is an adequate forum, and Arkansas can assert

jurisdiction over the entire suit. In Arkansas, there can be one fact-finder, one verdict, and one

judgment. The balancing of the public and private interests favors dismissal. Most importantly,

we are not reviewing this decision de novo—our standard of review is for an abuse of discretion.

We conclude the trial court did not abuse its discretion in dismissing the lawsuit.

VI.      Whether the Doctrine of Dominant Jurisdiction Is Applicable Has Not Been
         Preserved for Appellate Review

         In its fourth issue, Liberty Mutual argues that the trial court erred because Bowie County

acquired dominant jurisdiction. Although the doctrine of dominant jurisdiction 22 applies when

two courts have concurrent jurisdiction, several Texas courts have noted that the doctrine is

confined to two courts with concurrent jurisdiction located within the same state. See Ashton

Grove L.C. v. Jackson Walker L.L.P., 366 S.W.3d 790, 794 (Tex. App.—Dallas 2012, no pet.);

Griffith v. Griffith, 341 S.W.3d 43, 54 (Tex. App.—San Antonio 2011, no pet.); Ex parte Jabara,

556 S.W.2d 592, 596 (Tex. Civ. App.—Dallas 1977, no pet.) (“We conclude that the doctrine of


22
  “Dominant jurisdiction is a common law concept which is not based upon lack of jurisdiction, but on the grounds
of comity, vexatious litigation, or the avoidance of a multiplicity of suits.” Ault v. Mulanax, 724 S.W.2d 824, 828
(Tex. App.—Texarkana 1986, orig. proceeding); see In re Puig, 351 S.W.3d 301, 305 (Tex. 2011) (orig. proceeding)
(per curiam) (noting Texas Supreme Court never held dominant jurisdiction results in exclusive jurisdiction). Under
the common law doctrine of dominant jurisdiction, the court that first exercises jurisdiction, normally the court in
which suit is first filed, acquires dominant jurisdiction to the exclusion of all other courts with concurrent
jurisdiction over the subject matter. See, e.g., Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001) (orig. proceeding);
Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974) (orig. proceeding); Finlan v. Peavy, 205 S.W.3d 647, 651 (Tex.
App.—Waco 2006, no pet.); Gordon v. Jones, 196 S.W.3d 376, 385 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
                                                        25
dominant jurisdiction does not apply to suits pending in other states. Texas courts may recognize

prior proceedings in other states as a matter of comity, but pendency of a proceeding in another

state does not oust the jurisdiction of Texas courts to entertain the same controversy.”). It is not

necessary, though, for us to determine whether the doctrine of dominant jurisdiction is applicable

to the facts of this case. 23 It does not appear that Liberty Mutual presented this argument to the

trial court. The error, if any, has not been preserved for appellate review. See TEX. R. APP. P.

33.1.

VII.    Whether Section 71.051(e) Prohibits the Dismissal Has Not Been Preserved

        In its final issue, Liberty Mutual argues that the trial court erred because Section

71.501(e) of the Texas Civil Practice and Remedies Code prohibits the dismissal of a personal

injury lawsuit filed by a Texas plaintiff. Section 71.051(e) states that a court “may not stay or

dismiss” a lawsuit if the plaintiff or some of the plaintiffs (provided they are properly joined and

the action arose from a single occurrence) are legal Texas residents. TEX. CIV. PRAC. & REM.

CODE ANN. § 71.051(e). To the best we can discern, Liberty Mutual is claiming it is a Texas

resident because its claim is derivative of Smith’s claim and Smith was a Texas resident at the

time the injury occurred. Transit Mix responds that this error has not been preserved and,

alternatively, that Liberty Mutual is not the plaintiff. Transit Mix argues that Smith is the

plaintiff as contemplated by the statute and Smith did not file the lawsuit in question.




23
  We note Liberty Mutual raises the doctrine of comity in its reply brief. An appellant is prohibited from raising
new issues in a reply brief. See, e.g., Martin v. Martin, 363 S.W.3d 221, 237 (Tex. App.—Texarkana 2012, pet.
dism’d by agr.). We will not consider Liberty Mutual’s comity arguments.
                                                       26
        Liberty Mutual has not directed us to any place in the record showing that this argument

was presented to the trial court. As argued by Transit Mix and conceded by Liberty Mutual,

Liberty Mutual did not direct the trial court to Section 71.051(e). Although Liberty Mutual

argued at the dismissal hearing that Smith was a Texas resident at the time Liberty Mutual filed

the lawsuit, Liberty Mutual merely advanced this reason as a factor opposing dismissal. Liberty

Mutual did not inform the trial court that the Texas forum non conveniens statute prohibits

transfer if a properly-joined plaintiff is a Texas resident. Liberty Mutual’s arguments to the trial

court were insufficient to make the trial court aware of any complaint under Section 71.051(e).

In order to preserve a complaint for appellate review, a party must present to the trial court a

timely request, objection, or motion “with sufficient specificity to make the trial court aware of

the complaint, unless the specific grounds were apparent from the context . . . .” TEX. R. APP. P.

33.1.

        In its reply brief, Liberty Mutual argues that this issue is systemic error because it

violates a mandatory statute. As noted above, violation of a mandatory statute is often not

systemic error under Marin, and we are not willing to adopt the Marin error preservation

categories for civil cases not involving juvenile delinquencies. To the extent Liberty Mutual’s

argument can be interpreted as arguing the error is fundamental, we conclude the error is not

fundamental. See Pirtle, 629 S.W.2d at 920.

        Liberty Mutual has not preserved this issue for our review.




                                                27
VIII. Conclusion

        Liberty Mutual’s subrogation claim, as a derivative claim, is a personal injury cause of

action and is governed by the Texas forum non conveniens statute. We conclude that Arkansas

law should apply to the facts of this case and that the trial court did abuse not its discretion in

dismissing Liberty Mutual’s lawsuit. 24 Liberty Mutual’s remaining issues are not preserved for

appellate review.

        For the reasons stated, we affirm.




                                                    Bailey C. Moseley
                                                    Justice

Date Submitted:           May 24, 2013
Date Decided:             June 28, 2013




24
  We note abatement is an option under forum non conveniens. Liberty Mutual argued, though, against abatement
in the trial court and has not requested abatement on appeal. We do not express any opinion concerning whether an
abatement might have been an appropriate remedy under the facts of this case.
                                                       28
