                                NUMBER 13-12-00624-CV

                                   COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


                 IN RE FORD MOTOR COMPANY AND
        MICHELIN NORTH AMERICA, INC., INDIVIDUALLY AND AS
        SUCCESSOR TO MICHELIN AMERICAS RESEARCH AND
                   DEVELOPMENT CORPORATION


                          On Petition for Writ of Mandamus.


                                MEMORANDUM OPINION

                  Before Justices Rodriguez, Garza, and Vela
                  Memorandum Opinion by Justice Rodriguez1

       Relators, Ford Motor Company and Michelin North America, Inc., individually and

as successor to Michelin Americas Research and Development Corporation, filed a

petition for writ of mandamus contending that the trial court abused its discretion in

denying their forum non conveniens motions seeking to dismiss this product liability and

wrongful death case brought by the real parties in interest: Juan Tueme Mendez; the

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          See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Estate of Cesar Mendez Tueme, by and through Yuri Tueme, as duly appointed

administrator; Yuri Tueme, Yadira N. Tueme Tijerina, and Maria de Refugio Mendez

Castillo, individually and as wrongful death beneficiaries of Cesar Mendez Tueme,

deceased; and Melva L. Uranga, as the next friend and natural guardian of J.T., a

minor. We deny the petition for writ of mandamus.

                                   I. BACKGROUND

      This case arises from an automobile accident occurring in Mexico. Plaintiff Juan

Tueme Mendez was driving a Ford Explorer, and Cesar Mendez Tueme, his brother,

was a passenger in that vehicle. One of the tires, a BF Goodrich, failed, and the Ford

Explorer crashed causing personal injuries to Juan Tueme Mendez and the death of

Cesar Mendez Tueme.

      Juan Tueme Mendez filed suit in Hidalgo County, Texas against the estate of

Cesar Mendez Tueme on the ground that Cesar Mendez Tueme handled the care and

maintenance of the auto and tire. Juan Tueme Mendez was a resident of Mexico with a

visitor visa and a border crossing card. The estate of Cesar Mendez Tueme was being

administered in Hidalgo County, Texas.    See TEX. CIV. PRAC. & REM. CODE ANN. §

15.031 (West 2002) (providing for venue in suit to establish a money demand on an

estate). Relators contend that Cesar Mendez Tueme was a resident of Mexico with a

visitor visa and a border crossing card, but deposition testimony indicated that Cesar

Mendez Tueme resided in Hidalgo County, Texas for two years prior to the accident at

issue in this lawsuit, while maintaining a secondary residence in Reynosa, Tamaulipas,

Mexico at his mother’s home.




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       Yuri Tueme, Cesar Mendez Tueme’s daughter and the administrator of his

estate, answered the lawsuit and filed a third party action, entitled “Defendant’s/Third

Party Plaintiff’s Original Third Party Petition,” against Ford and Michelin. Yuri Tueme is

a resident of Texas.

       Yuri Tueme, Yadira N. Tueme Tijerina, and Maria de Refugio Mendez Castillo,

individually and as wrongful death beneficiaries of Cesar Mendez Tueme, filed an

“Original Petition in Intervention” as “plaintiffs-intervenors” against Ford and Michelin.

       Juan Tueme Mendez amended his petition to sue Ford and Michelin.

       J.T., a minor child of Cesar Mendez Tueme, intervened in the lawsuit by her next

friend and mother, Melva L. Uranga, bringing wrongful death claims against Ford and

Michelin. J.T. is a United States citizen and a legal resident of Texas, as is Uranga.

       Relators filed several motions to dismiss the claims against them under the

doctrine of forum non conveniens. Uranga, on behalf of her minor daughter, filed a

response to the motions to dismiss and a motion for sanctions. The parties engaged in

discovery on evidentiary issues pertinent to a forum non conveniens analysis.

Following discovery, relators filed a joint supplemental motion to dismiss and a reply to

Uranga’s response, and Uranga filed a brief in support of her response to the motions to

dismiss.

       Following a hearing, the trial court denied the motions to dismiss. This original

proceeding ensued. The Court requested and received a response to the petition for

writ of mandamus from the real parties in interest and further received a reply thereto

from relators.




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       By two issues, relators contend that (1) the trial court clearly abused its discretion

in denying relators’ motions to dismiss based on forum non conveniens, and (2) they

lack an adequate remedy by appeal. In response, real parties in interest assert that the

trial court correctly denied the motions to dismiss because one or more of the plaintiffs

are legal residents of Texas and the civil practice and remedies code prohibits dismissal

on forum non conveniens grounds when the plaintiff is a legal resident of Texas. See

TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b), (e) (West 2008). Relators and real

parties in interest disagree regarding application of the factors that a trial court must

consider when ruling on a motion to dismiss for forum non conveniens.

                                  II. STANDARD OF REVIEW

       Mandamus is an “extraordinary” remedy.          In re Sw. Bell Tel. Co., L.P., 235

S.W.3d 619, 623 (Tex. 2007) (orig. proceeding); see In re Team Rocket, L.P., 256

S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). To obtain mandamus relief, the relator

must show that the trial court clearly abused its discretion and that the relator has no

adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36

(Tex. 2004) (orig. proceeding); see In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462

(Tex. 2008) (orig. proceeding). A trial court abuses its discretion if it reaches a decision

so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it

clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P.,

164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam); Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

       We review a trial court’s refusal to dismiss on forum non conveniens grounds for

abuse of discretion. In re Ensco Offshore Int’l Co., 311 S.W.3d 921, 923–24 (Tex.



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2010) (orig. proceeding); In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 679 (Tex. 2007)

(orig. proceeding). An appeal is not adequate when a motion to dismiss on forum non

conveniens grounds is erroneously denied, so mandamus relief is available, if it is

otherwise warranted. In re Ensco Offshore Int’l Co., 311 S.W.3d at 923–24; In re Gen.

Elec. Co., 271 S.W.3d 681, 685 (Tex. 2008) (orig. proceeding).

                               III. FORUM NON CONVENIENS

      Texas Civil Practice and Remedies Code section 71.051 governs motions to

dismiss for forum non conveniens in all actions for personal injury or wrongful death.

See In re Pirelli Tire, 247 S.W.3d at 674. Section 71.051(b) provides:

             If a court of this state, on written motion of a party, finds that in the
      interest of justice and for the convenience of the parties a claim or action
      to which this section applies would be more properly heard in a forum
      outside this state, the court shall decline to exercise jurisdiction under the
      doctrine of forum non conveniens and shall stay or dismiss the claim or
      action. In determining whether to grant a motion to stay or dismiss an
      action under the doctrine of forum non conveniens, the court shall
      consider whether:

               (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




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              (6) the stay or dismissal would not result in unreasonable
       duplication or proliferation of litigation.

TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b); see In re Ensco Offshore Int’l Co., 311

S.W.3d at 923–24. The word “shall” in the statute “requires dismissal of the claim or

action if the statutory factors weigh in favor of the claim or action being more properly

heard in a forum outside Texas.” In re Gen. Elec. Co., 271 S.W.3d at 686.

       Section 71.051 does not require that the movant prove every statutory factor or

that every factor must weigh in favor of dismissal for the movant to be entitled to relief.

See id. at 687. The doctrine of forum non conveniens affords great deference to the

plaintiff’s choice of forum. In re Pirelli Tire, 247 S.W.3d at 675. However, the doctrine

“generally affords substantially less deference to a nonresident’s forum choice.” Id.; see

also Quixtar, Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (per

curiam) (holding same in common-law forum non conveniens context and noting fact

“that a plaintiff is not a Texas resident speaks directly to a defendant’s burden” in

establishing propriety of dismissal).

       Under subsection (e) of section 71.051, however, the “court may not stay or

dismiss a plaintiff’s claim under subsection (b) if the plaintiff is a legal resident of this

state.” TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(e). If an action involves some

plaintiffs who are legal residents of this state and some plaintiffs who are not, “the court

may not stay or dismiss the action under [s]ubsection (b) if the plaintiffs who are legal

residents of this state are properly joined in the action and the action arose out of a

single occurrence.” Id. If the court finds by a preponderance of the evidence that a

party was joined solely for the purpose of obtaining or maintaining jurisdiction in this

state and the party’s claim would be more properly heard in a forum outside this state,

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the court shall dismiss the claim. Id. The term “plaintiff” is specifically defined by this

statute:

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

Id. § 71.051(h)(2).

                                     IV. TEXAS RESIDENTS

       We first address real parties’ argument that the trial court was required to deny

the motions to dismiss because one or more of the plaintiffs were Texas residents, and

the statutory exception in section 71.051(e) applies to this case. Relators contend that

the exception in section 71.051(e) does not apply because there is only one “plaintiff” in

this case, Juan Tueme Mendez, who is a Mexican resident. Relators contend that all

other parties to this case are “third party plaintiffs” who are excluded from the statutory

definition of a plaintiff.   Relators contend, in the alternative, that even if third party

plaintiffs fell within the definition of “plaintiff” under the statute, the exception would still

not apply because the definition of “plaintiff” treats the decedent and wrongful death

beneficiaries as a single plaintiff and the residence of the decedent controls for

purposes of the Texas-resident exception.          Relators thus conclude that even if the

individuals acting on behalf of Cesar are “plaintiffs,” Cesar Mendez Tueme was not a

legal resident of Texas at the time of his death, his residence in Mexico controls, and

accordingly, the statutory exception is inapplicable.



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       Relators’ interpretation of the statute rests on their theory that the statute’s plain

language defines a decedent and wrongful death beneficiaries as a single “plaintiff.”

See id. (“In a cause of action in which a party seeks recovery of damages for personal

injury to or the wrongful death of another person, “plaintiff” includes both that other

person and the party seeking such recovery.”). Relators contend that if we were to

construe the statute otherwise, so as to treat the decedent and each wrongful death

beneficiary as separate plaintiffs in accordance with the real parties’ construction, it

would render the definition of “plaintiff” superfluous insofar as it includes “both that other

person and the party seeking such recovery.”

       The interpretation of section 71.051 is a matter of statutory construction, a legal

question we review de novo. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177

(Tex. 2012); Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010);

see also MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 500 (Tex. 2010).                In

construing a statute, our goal is to determine and give effect to the Legislature’s intent,

and we begin with the plain and common meaning of the statute’s words. Tex. W. Oaks

Hosp., LP, 371 S.W.3d at 177. When construing a statute, words and phrases are read

in context and construed according to the rules of grammar and common usage. TEX.

GOV’T CODE ANN. § 311.011(a) (West 2005). Words that are not defined are given their

ordinary meaning unless a contrary intention is apparent from the context, or unless

such a construction leads to absurd results. City of Rockwall v. Hughes, 246 S.W.3d

621, 625–26 (Tex. 2008). When possible, the Legislature’s intent is drawn from the

plain meaning of the words chosen, giving effect to all words so that none of the

statute’s language is treated as surplusage. Marks, 319 S.W.3d at 663; see State v.



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Shumake, 199 S.W.3d 279, 284 (Tex. 2006); Cont’l Cas. Ins. Co. v. Functional

Restoration Assocs., 19 S.W.3d 393, 402 (Tex. 2000). Our ultimate goal, however, is to

understand the Legislature’s intent and apply that intent according to the statute’s

purpose. TEX. GOV’T CODE ANN. § 312.005; see Marks, 319 S.W.3d at 663.

       As an initial matter, the term “third party plaintiff” does not encompass all of those

plaintiffs, other than Juan Tueme Mendez, bringing claims against relators. A third party

plaintiff is a defendant who files a pleading in an effort to bring a third party into the

lawsuit. See TEX. R. CIV. P. 38(a); BLACK’S LAW DICTIONARY 1273 (9th ed. 2009); see

also J.M.K. 6, Inc. v. Gregg & Gregg, P.C., 192 S.W.3d 189, 202 (Tex. App.—Houston

[14th Dist.] 2006, no pet.) (concerning the definition of third party practice in the context

of statutory limitations); Omega Constr., Inc. v. Torres, 191 S.W.3d 828, 837 (Tex.

App.—Fort Worth 2006, no pet.) (concerning the definition of a third party plaintiff in the

context of comparative responsibility statutes). Yuri Tueme is the only individual in this

case fitting that description. Accordingly, we reject relators’ contention that the plaintiffs

herein are third-party plaintiffs to whom the statutory exception is inapplicable.

       We also disagree with relators’ interpretation of the definition of “plaintiff” as

treating the decedent and wrongful death beneficiaries as a single plaintiff and providing

that the residence of the decedent controls for purposes of the Texas-resident

exception. In fact, the plain language of the statute compels the exact opposite result.

The statute expansively defines “plaintiff” as both the party seeking recovery of

damages for personal injury or wrongful death of another person and that other person.

TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(h)(2) (emphasis added); see In re

Bridgestone Ams. Tire Operations, LLC, No. 09-12-00332-CV, 2012 Tex. App. LEXIS



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9054, at *16 (Tex. App.—Beaumont Nov. 1, 2012, orig. proceeding) (stating that under

section 71.051(h)(2), it is “clear that the term ‘plaintiff’ was intended by the Legislature

to include a next friend who did not accept the appointment of next friend in bad faith”).

Accordingly, this case includes plaintiffs who are legal residents of this State.

                                      V. CONCLUSION

       Under section 71.051(e) of the civil practice and remedies code, the trial court

could not dismiss a plaintiff’s claim if the plaintiff is a legal resident of this state. TEX.

CIV. PRAC. & REM. CODE ANN. § 71.051(e).           After determining that J.T. and Melva

Uranga are Texas residents and concluding that they are properly joined in this matter,

the trial court complied with the provisions of section 71.051(e) by denying relators’

motion to dismiss. Having so determined, we need not reach the parties’ remaining

arguments regarding application of the forum non conveniens factors under section

71.051(b) to the facts of this case. See TEX. R. APP. P. 47.1, 47.4.

       The Court, having examined and fully considered the petition for writ of

mandamus, the response thereto, and the reply, is of the opinion that relators’ petition

for writ of mandamus should be and is denied. The motion for temporary relief filed by

Ford Motor Company is likewise denied.



                                                         NELDA V. RODRIGUEZ
                                                         Justice

Delivered and filed the 20th
day of November, 2012.




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