AFFIRM; and Opinion Filed December 17, 2018.




                                            In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-17-00612-CV

         ABDUL HAMID RASUL AND ABRAHAM RASUL, Appellants
                                V.
AZIZI RAHMAN RASUL, M. SHUAIB RASUL, M. IQBAL RASUL, KHALIL RAHMAN
   RASUL, HABIB RAHMAN RASUL, M. AMIN RASUL, AND RHAMAN TYRES
             INTERNATIONAL (PRIVATE) LIMITED, Appellees

                      On Appeal from the 429th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 429-00061-2013

                            MEMORANDUM OPINION
                       Before Justices Stoddart, Whitehill, and Boatright
                                 Opinion by Justice Boatright
       Abdul Hamid Rasul and Abraham Rasul appeal the trial court’s order dismissing their

claims for lack of subject matter jurisdiction and on forum non conveniens grounds. Both

appellants challenge each of the alternative grounds for dismissal. Because the trial court acted

within its discretion in dismissing the case on forum non conveniens grounds, we affirm.

                                       BACKGROUND

       This appeal involves one family and two business ventures. The ventures were initially

developed and operated by Abdul Rahman Rasul (“Father”). With his wife Rahima (“Mother”),

Father had eleven children—eight sons and three daughters—who were born and raised in

Afghanistan. Father owned and managed more than thirty properties in Afghanistan (the “Afghan
Properties”). He eventually moved his family to Pakistan, where he developed a successful

business importing tires. Some sons worked with him in different aspects of the business. Others

emigrated over time to the United States, as did their sisters. Ultimately all of the brothers obtained

U.S. citizenship, which they currently hold along with their Afghan citizenship.

       Father died in Pakistan in 2002; he had not made a will. After Father’s death, Mother

moved to the United States. She died intestate in Collin County in 2016.

       Father’s estate was never probated. Appellants contend that, the night before Father died,

seven of the brothers (all except appellant Abdul Hamid (“Hamid”)) agreed orally that:

       The brothers would continue to operate the tire business; [appellees] Shuaib and
       Iqbal would stay in the region to operate the business for a salary of $100,000 per
       year to be paid from the business’s operating profits; and any funds remaining in
       government accounts from early versions of the business would be split among the
       [seven] brothers, with special allocations for the benefit of their sisters and disabled
       brother Hamid.

Appellants contend further that, in November 2003, the family agreed to allow Shuaib to manage

the Afghan Properties as well. The family executed powers of attorney in his name authorizing

him to manage and protect the properties on their behalf.

       In 2011, appellants allege, Abraham first heard the suggestion that appellees had made

significant changes in how the family businesses were being run and that appellants were no longer

being treated as the family’s agreements had required. When the family gathered in Texas to

discuss business, Abraham raised his concerns, but appellees denied that any changes had been

made and asserted that profits were still accruing to all family members. Despite these assurances,

Abraham asserts, he was denied access to business records. He traveled to Afghanistan in 2012

and learned that appellees were operating the tire import business under the same license that

Abraham alleges he negotiated, but they were doing so under the new name of Rahman Tyres

International (Private) Limited (“RTI”), a Pakistani corporation. While in Afghanistan, Abraham



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also learned that the appellant brothers “attempted to transfer the Afghan Properties to third parties

in return for benefits for [RTI],” which those brothers control.

       Through discovery in this litigation, appellants learned that other family members had

created a number of entities, including RTI, a Cayman Island trust called the Bluebonnet Trust, a

second trust named Starwood, as well as a number of corporate entities that the appellee brothers

were employing to structure the tire import business. While Abraham was named as a Bluebonnet

Trust beneficiary, he was not a beneficiary of the Starwood Trust and had no role in—or

knowledge of—the various holding and operating companies involved in the tire business.

       Abraham filed this suit in 2013, alleging breach of contract, breach of fiduciary duty,

money had and received, conversion, fraud, fraud by nondisclosure, violations of the Uniform

Fraudulent Transfer Act, and conspiracy. Habid joined the suit as a plaintiff, alleging that he is a

third-party beneficiary of his brothers’ 2002 oral agreement.

       Appellees filed their motion to dismiss all of appellants’ claims based on the alternative

grounds of lack of subject matter jurisdiction and forum non conveniens. The parties submitted

documents, affidavits, and declarations, including extensive expert testimony. The trial court

granted the motion on both grounds. Abraham and Habid appeal.

                                 FORUM NON CONVENIENS

       “The principle of forum non conveniens is simply that a court may resist imposition upon

its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” Gulf

Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947). A trial court’s ultimate inquiry asks where trial

will best serve the convenience of the parties and the ends of justice. Koster v. (Am.) Lumbermens

Mut. Cas. Co., 330 U.S. 518, 527 (1947). Resolution of that inquiry is committed to the sound

discretion of the trial court. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). We give the

trial court’s decision substantial deference, and we will reverse its determination only if the record

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shows a clear abuse of discretion. Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31,

35 (Tex. 2010) (per curiam). In this case, the trial court made extensive findings of fact and

conclusions of law tracing the settled three-step analysis required to resolve a motion to dismiss

under Texas’ common law doctrine of forum non conveniens, i.e., (1) is there an available

alternative forum, (2) is there an adequate alternative forum, and (3) does the balance of private

and public-interests involved favor dismissal of the lawsuit in favor of the alternative forum.

Vinmar Trade Fin., Ltd. v. Util. Trailers de Mexico, S.A. de C.V., 336 S.W.3d 664, 672 (Tex.

App.—Houston [1st Dist.] 2010, no pet.).

                                 Existence of an Alternative Forum

          In their second issue, appellants argue that the trial court erred by determining that neither

Pakistan nor Afghanistan will provide an available and adequate forum for the resolution of their

claims.

                                      Availability of the Forums

          A trial court cannot dismiss a case for forum non conveniens unless another forum is

available to the plaintiff. Generally, a forum is “available” for purposes of forum non conveniens

if the entire case and all the parties can come within the jurisdiction of that forum. RSR Corp. v.

Siegmund, 309 S.W.3d 686, 710 (Tex. App.—Dallas 2010, no pet.). Appellees contend that

Afghanistan provides an available forum for the claims related to the Afghan Properties (the

“Afghan Real Estate Claims”) and that Pakistan provides an available forum for the claims related

to the tire import business (“Tire Business Claims”). And appellees asserted below that they would

accept informal service and consent to jurisdiction in both forums if this case were dismissed and

re-filed there.

          Appellants raise a single objection to the availability of these forums. They argue that

appellees’ consent to jurisdiction was based solely on their counsel’s representations, not on

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evidence. Thus, they assert, there is no evidence that Afghanistan or Pakistan could obtain

jurisdiction of the parties to the case so as to make it an available forum under Texas law.

       A defendant may demonstrate the availability of a forum by stipulating that it would submit

to personal jurisdiction there. In re Oceanografia, S.A. de C.V., 494 S.W.3d 728, 732 (Tex. 2016).

Appellees offered their consent to jurisdiction in writing in their motion to dismiss and in their

reply brief in support of that motion; they repeated the offer at the hearing on the motion to dismiss.

“A ‘stipulation’ is an agreement, admission, or concession made in a judicial proceeding by the

parties or their attorneys respecting some matter incident thereto.” Ortega-Carter v. Am. Intern.

Adjustment Co., 834 S.W.2d 439, 441–42 (Tex. App.—Dallas 1992, writ denied). Appellees’

concession that they would submit to jurisdiction was made by their attorneys during the judicial

proceeding surrounding the motion to dismiss. It was an effective stipulation, id., and therefore

was sufficient to establish Afghanistan and Pakistan as available forums. Oceanografia, 494

S.W.3d at 732.

                                      Adequacy of the Forums

       A forum is “adequate” for purposes of forum non conveniens if the plaintiff would not be

deprived of all remedies or treated unfairly in that forum. RSR Corp., 309 S.W.3d at 710. An

alternative forum will not be adequate if the remedies it offers are so unsatisfactory that they really

comprise no remedy at all. In re Gen. Elec. Co., 271 S.W.3d 681, 688 (Tex. 2008). That said,

“comparative analyses of procedures and substantive law in different forums should be given little

weight in forum non conveniens analysis because such analyses pose significant practical

problems.” Id. Indeed, the doctrine of forum non conveniens exists in part so that courts may avoid

conducting complex exercises in comparative law. Piper Aircraft Co., 454 U.S. at 251.

       Pakistan




                                                 –5–
       Appellants contend initially that the Tire Business Claims would be subject to egregious

delay if they were filed in Pakistan. Appellants’ expert offered evidence, albeit anecdotal, of cases

that had been in progress for ten to twenty years in Pakistan. But delay in disposition of a case can

occur in any U.S. jurisdiction depending on such factors as docket congestion, mandates for

preferential settings for certain types of cases, or funding of the judiciary. In re Gen. Elec., 271

S.W.3d at 688. Indeed, “[t]he many known and unknown matters affecting pretrial events and trial

settings are necessarily speculative and are reasons comparative analyses have been termed

‘complex’ and should be avoided in forum non conveniens consideration.” Id. Nevertheless, in

this case the issue of delay can be addressed in a meaningful way. Appellees offered evidence that

Pakistan allows a special Commissioner to be appointed in a process that will expedite handling

of the Tire Business Claims. Appellees have stipulated that they will support such an appointment,

comply with discovery requests, and cooperate with the Pakistan court.

       Appellants contend specifically that Pakistan is not an adequate forum for Hamid. He is

disabled by cerebral palsy, and a Texas court has named his daughter as his guardian. In Pakistan,

Hamid urges, a court would disallow his female guardian and could name itself as guardian, which

could result in unfair treatment. Appellees’ expert disagreed that a woman could not act as guardian

in Pakistan, and he opined as well that Hamid’s son, who traveled with his father and uncle

Abraham to Afghanistan in 2012, could serve as Hamid’s guardian.

       Finally, appellants posit that they could be charged with blasphemy if the Tire Business

Claims are re-filed in Pakistan, ostensibly because they “attempted to circumvent the Islamic

inheritance laws” here in Texas. But appellees’ legal expert rejected the argument that appellants

would be at risk if they were to bring their claims in Pakistan. He stated that he was unaware of

such a charge being made in an inheritance case over his forty years of experience practicing law




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in Pakistan. On the contrary, he opined that appellants could challenge appellees’ actions with

respect to Father’s estate under Pakistan’s Succession Act.

       The ultimate question in this inquiry is whether Pakistan provides a remedy for appellants’

claims. The trial court concluded that it does. Appellees provided expert testimony confirming that

Pakistan law provides damages for breach of contract under that nation’s Contract Act. Tort

remedies, likewise, are available; in Pakistan, “the Common Law of England is applied as a matter

of justice, equity and good conscience” in tort cases. In addition, a Pakistani court can impose

equitable remedies and procedures, including ordering an accounting or an attachment of property.

Expert testimony supports the trial court’s conclusion that Pakistani courts can provide remedies

to redress appellants’ Tire Business Claims.

       The trial court’s determination that Pakistan was an adequate forum for the Tire Business

Claims was supported by evidence. We discern no abuse of discretion in that determination.

       Afghanistan

       Appellants argue at the outset that Afghanistan is an inadequate forum based upon its status

as an active combat zone. They contend that travel by U.S. citizens is discouraged there, and they

assert that requiring them to litigate their claim in a war zone “is akin to providing [them] no

remedy at all.” Appellees argue that we should not consider this issue, which, they say, was not

raised by evidence below. But even if we consider the government documents that appellants

proffer on appeal, we cannot conclude that these appellants would have no remedy in an Afghan

court. Appellants are Afghan citizens. We know from their own pleadings that they were able to

travel to Afghanistan during the pendency of this litigation. Abraham initiated a lawsuit in the

Afghan courts concerning rents on a specific property; in discovery responses, Abraham stated

that “the lawsuit did not proceed to conclusion and [he] believes that this was due, at least in part,

because Shuaib had a power of attorney over the Afghan Properties at that time.” When appellants

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were together in Afghanistan they met with an attorney and successfully revoked Shuaib’s powers

of attorney concerning the Afghan properties. It appears that appellants will be able to invoke the

Afghan legal system as necessary to pursue their Afghan Real Estate Claims.

       Appellees also produced expert testimony indicating that appellants’ claims would be

amenable to redress in the Afghan courts. Their expert identified specific provisions in

Afghanistan’s Civil Code that would apply to appellants’ claims and would support awards of

damages if those claims were successful. The expert concluded that “Afghanistan law applies to

the agency created by the alleged powers of attorney and for any usurpation of the Afghanistan

properties, and provides for compensation in case of breach of the agent’s duties, usurpation of the

properties or unjust gain from the properties.”

       Appellants assert that Afghan courts “defer jurisdiction to the court in whose territory the

monetary assets are located,” and—because appellees have moved the rents from these properties

outside of Afghanistan—that country would not hear their claims. Again, appellees’ expert cites a

specific Afghan statute to show that its courts have jurisdiction “of any claim related to the division

or assignment of [a] bequest.” Thus, whether a trial between these parties addresses title to the

Afghan properties in Father’s estate or only the rents generated by those properties, Afghan courts

can exercise their jurisdiction.

       Finally, appellants contend that even if the Afghan courts exercise jurisdiction over their

claims, appellants will be unable to pursue those claims effectively because discovery is not a part

of Afghanistan’ civil procedure. Appellants argue they will be unable to compel document

production or witness attendance and that absent “the means to trace, source, and quantify” the

rents generated by the Afghan properties, they cannot litigate their claims. But again, Appellees

produced expert testimony, citing specific statutory authority, establishing that Afghan courts can

compel information from parties, third-parties, and experts. And as to appellants’ concerns about

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proving the rents they claim, their expert quotes the provision of Afghanistan’s Code of Civil

Procedure that provides:

       In claims whose complexity is the result of accounting issues and of the
       examination of papers and documents, or if the complexity of the claims has
       originated from elsewhere, the court shall assign one of the members of the court
       or an expert to supervise the issue and take actions thereafter.

       The trial court’s determination that Afghanistan was an adequate forum for the Afghan

Real Estate Claims was supported by evidence.

       We overrule appellants’ second issue.

                    Balancing Private and Public Interests in the Litigation

       When available and adequate forums exist, we consider the balance of relevant private and

public interest factors between the alternative forums. Gulf Oil, 330 U.S. at 508. The trial court

found that, on balance, these factors “weigh heavily for, and strongly favor, dismissal.” In

appellants’ third issue, they challenge the trial court’s balancing of those factors. Again, we review

the trial court’s determination for an abuse of discretion: we do not conduct a de novo review by

mechanically re-weighing each of the Gulf Oil factors. Quixtar, 315 S.W.3d at 35. Instead, we ask

whether the trial court’s balancing of the factors was supported by evidence. Id. “[W]here the court

has considered all relevant public and private interest factors, and where its balancing of these

factors is reasonable, its decision deserves substantial deference.” Piper Aircraft Co., 454 U.S. at

257.

       Private-Interest Factors

       The private-interest factors reflect the interests of the litigants and include (1) the relative

ease of access to sources of proof; (2) the availability of the compulsory process for attendance of

unwilling witnesses and the cost of obtaining the attendance of willing witnesses; (3) the

possibility of viewing the premises, if doing so would be relevant to the action; (4) issues related



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to the enforceability of a judgment if one is obtained; and (5) all other practical problems affecting

the ease and expense of the case. Gulf Oil, 330 U.S. at 508.

       Appellants focus on the parties’ personal contacts with the state of Texas, and we agree

that appellants have offered evidence that all parties have contacts with the state. However,

appellees have offered evidence of the significant sources of proof in the alternative venues: the

Afghan properties, the deeds to those properties held in government offices, and records related to

any income they have generated are all located in Afghanistan; the tire business, its records,

employees, inventory, and operations are all located in Pakistan; and the majority of non-family

witnesses are located in the alternative forums. Appellees also offered evidence that: both Pakistan

and Afghanistan can compel attendance of unwilling witnesses; the cost of appellants’ travel to

the Mideast would be roughly the same as that of Shuaib’s and Iqbal’s travel to Texas; and

judgments obtained in either Pakistan or Afghanistan could be enforced in those countries or in

Texas as foreign judgments under chapter 36 of the Texas Civil Practice and Remedies Code.

       Public-Interest Factors

       The public-interest factors reflect the interests of the forum and include (1) the

administrative difficulties for courts “when litigation is piled up in congested centers instead of

being handled at its origin”; (2) the burdens, including jury duty, imposed on people of a

community which has no relation to the litigation; (3) the interest in having localized controversies

decided where they arose; and (4) avoiding conflicts of law issues. Gulf Oil, 330 U.S. at 508-509.

       Appellants, again, argue that Texas has the most significant relationship to this litigation.

They contend that appellees’ “offending conduct (e.g., the breach [of contract], fraud, and

fraudulent transfers)” occurred in Texas at family meetings in and around Collin County.

Appellants concede that their alleged oral agreement with appellees was made in Pakistan and may

be governed by the law of Afghanistan or Pakistan. They also acknowledge that their “primary

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injury . . . was the misappropriation of funds generated from the tire business and Afghan

Properties.” Appellees respond that the burdens weighing on a forum are more appropriately borne

by the local forums where the alleged contract was formed and the purported misappropriations

took place.

        The trial court’s findings stress the administrative burden it would bear if the case were

tried in Collin County. Specific issues for the trial court would include translation of (a) witness

testimony, deeds, and documents related to the Afghan Properties, and (b) accounting, banking,

trade licenses, and other records related to the tire import business. At a minimum, the trial court

would have to address the law of Afghanistan and Pakistan to determine whether they should apply

to appellant’s claims. It would likely have to interpret and apply that law to significant issues in

the litigation.

        Appellants argue that the trial court put too much emphasis on the difficulty of applying

foreign law. They declare that this is merely an issue of choice of law, that Texas courts can apply

foreign law, and that difficult foreign law should not suffice for dismissal. But “the public interest

factors point towards dismissal where the court would be required to ‘untangle problems in conflict

of laws, and in law foreign to itself.’” Piper Aircraft Co., 454 U.S. at 251 (quoting Gulf Oil, 330

U.S. at 509).

        We conclude that the trial court considered all relevant public and private interest factors

and that its balancing of those factors was reasonable. The evidence in the extensive record

supports the trial court’s findings. We note as well that appellants’ counsel acknowledged at oral

argument that there was evidence on both sides of almost every issue. Given this record, the trial

court’s decision deserves substantial deference. Id. at 257.

        Appellants stress that their choice of forum should also be given great deference. Although

we agree that a plaintiff’s choice of forum is entitled to deference, dismissal should not be

                                                –11–
automatically barred when a plaintiff has filed suit in his home forum. Id. at 256, n. 23. And

Abraham—a resident of Colorado—did not file suit in his home forum. This does not mean that

his choice of forum deserves no deference. We recognize that Habid, who joined the suit as a

plaintiff, is a Texas resident. “But that a plaintiff is not a Texas resident speaks directly to a

defendant’s burden.” Quixtar, 315 S.W.3d at 31. And when the balance of conveniences suggests

that trial in Texas would be unnecessarily burdensome for the defendants or the court, dismissal is

proper. Piper Aircraft Co., 454 U.S. at 260, n. 23. We cannot say that the trial court abused its

discretion in dismissing this litigation.

         We overrule appellant’s third issue.

                                            CONCLUSION

         We affirm the trial court’s order dismissing appellants’ claims without prejudice on the

ground of forum non conveniens. Given this disposition, we need not address appellants’ first

issue.




                                                  /Jason Boatright/
                                                  JASON BOATRIGHT
                                                  JUSTICE


170612F.P05




                                                –12–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 ABDUL HAMID RASUL AND                               On Appeal from the 429th Judicial District
 ABRAHAM RASUL, Appellants                           Court, Collin County, Texas
                                                     Trial Court Cause No. 429-00061-2013.
 No. 05-17-00612-CV          V.                      Opinion delivered by Justice Boatright.
                                                     Justices Stoddart and Whitehill
 AZIZI RAHMAN RASUL, M. SHUAIB                       participating.
 RASUL, M. IQBAL RASUL, KHALIL
 RAHMAN RASUL, HABIB RAHMAN
 RASUL, M. AMIN RASUL, AND
 RHAMAN TYRES INTERNATIONAL
 (PRIVATE) LIMITED, Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellees AZIZI RAHMAN RASUL, M. SHUAIB RASUL, M.
IQBAL RASUL, KHALIL RAHMAN RASUL, HABIB RAHMAN RASUL, M. AMIN
RASUL, and RHAMAN TYRES INTERNATIONAL (PRIVATE) LIMITED recover their costs
of this appeal from appellants ABDUL HAMID RASUL and ABRAHAM RASUL.


Judgment entered this 17th day of December, 2018.




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