751 S.W.2d 208 (Tex.App. - Houston [1 Dist.] 1988), 01-87-00700, Alfaro v. Dow Chemical

Docket Nº:01-87-00700-CV.
Citation:751 S.W.2d 208
Party Name:Domingo Castro ALFARO, et al., Appellants, v. DOW CHEMICAL, et al., Appellees.
Case Date:March 24, 1988
Court:Court of Appeals of Texas
 
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Page 208

751 S.W.2d 208 (Tex.App. —Houston [1 Dist.] 1988)

Domingo Castro ALFARO, et al., Appellants,

v.

DOW CHEMICAL, et al., Appellees.

No. 01-87-00700-CV.

Court of Appeals of Texas, First District, Houston

March 24, 1988

Rehearing Denied June 16, 1988.

Charles S. Siegel, Russell W. Budd, Baron & Budd, Dallas, for appellants.

Burt Ballanfant, Jose Berlange, and Walter Conrad, Michael L. Samford, Baker & Botts, Houston, for appellees.

Before WARREN, DUGGAN and LEVY, JJ.

OPINION

WARREN, Justice.

This is an appeal from the trial court's "forum non conveniens" dismissal of appellants' suit.

Appellants are all Costa Rican residents. Appellee Dow Chemical ("Dow") is a Delaware corporation with its principal place of business located in Midland, Michigan. Appellee Shell Oil Company ("Shell") is a Delaware corporation with its principal place of business located in Houston, Texas. Both Dow and Shell are authorized to do business in Texas.

Appellants' suits claim that while working for Standard Fruit on a banana plantation in Costa Rica, they were required to handle DBCP, a pesticide manufactured and furnished to Standard Fruit by Dow and Shell; that their handling of the DBCP caused them physical and mental damages, including irreversible sterility; and that appellees were liable for damages under the theories of products liability, strict liability, and breach of warranty.

Appellees contested the jurisdiction of the Texas trial court and, alternatively, contended that the cause should be dismissed under the forum non conveniens doctrine.

The trial court found that it had jurisdiction under Tex.Civ.Prac. & Rem.Code Ann. § 71.031 (Vernon 1986), but dismissed the cause for forum non conveniens.

In a single point of error, appellants claim that forum non conveniens dismissal is precluded by § 71.031, which provides:

Act or Omission Out of State

(a) An action for damages for the death or personal injury of a citizen of this

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state, of the United States, or of a foreign county may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country, if:

(1) a law of the foreign state or country or of this state gives a right to maintain an action for damages for the death or injury;

(2) the action is begun in this state within the time provided by the laws of this state for beginning the action; and

(3) in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.

(b) All matters pertaining to procedure in the prosecution or maintenance of the action in the courts of this state are governed by the law of this state.

(c) The court shall apply the rules of substantive law that are appropriate under the facts of the case.

In four cross-points of error, Shell claims:

(1) that the court erred in finding that it had jurisdiction over the case;

(2) that the court erred in holding that plaintiffs had established a prima facie cause of action against Shell; and

(3) that the evidence was legally and factually insufficient to show that plaintiffs had complied with the requirements of § 71.031.

We must first determine whether the trial court had jurisdiction, because forum non conveniens does not apply unless there is jurisdiction. Cole v. Lee, 435 S.W.2d 283 (Tex.Civ.App.--Dallas 1968, writ dism'd).

Shell and Dow are both foreign corporations licensed to do business in Texas. As such, they are not residents. H. Rouw Co. v. Railway Express Agency, 154 S.W.2d 143 (Tex.Civ.App.--El Paso...

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