Ahumada v. Dow Chemical Co., 14-96-01513-CV

• Court: Court of Appeals of Texas
• Writing for the Court: LESLIE BROCK YATES; MAURICE E. AMIDEI; MAURICE E. AMIDEI
• Citation: 992 S.W.2d 555
• Parties: Enrique AHUMADA, et. al., Appellants, v. DOW CHEMICAL COMPANY, Appellee. (14th Dist.)
• Docket Number: No. 14-96-01513-CV,14-96-01513-CV
• Decision Date: 25 March 1999

Page 555

992 S.W.2d 555 Enrique AHUMADA, et. al., Appellants,
v.
DOW CHEMICAL COMPANY, Appellee. No. 14-96-01513-CV. Court of Appeals of Texas,
Houston (14th Dist.). March 25, 1999.
Rehearing Overruled June 10, 1999.

Page 557

David T. Altenbern, Houston, for appellants.

Richard O. Faulk, Kevin L. Colbert, Houston, for appellees.

Panel consists of Justices YATES, FOWLER, and AMIDEI.

MAJORITY OPINION

LESLIE BROCK YATES, Justice.

This is an appeal from a summary judgment. Appellants are several hundred fishermen who claimed to have suffered damages from a toxic spill in the Bay of Cartagena, Colombia in 1989. Specifically, appellants complained that the toxic spill prevented them from fishing in the bay. Appellants sued Dow Chemical Company, alleging negligence and products liability. Dow Chemical filed a motion for summary judgment claiming appellants could not recover because a Colombian regulation banned fishing in the Bay at the time of the spill. ¹ In their response to the motion for summary judgment and in this court, appellants argue that the regulation was never effective because it was not officially published. Appellants also challenge the constitutionality of the regulation and argue that, even if the regulation was deemed legally effective at the time of the chemical spill, material fact questions remain. ² We affirm.

Effectiveness of Colombian Regulation

In their first point of error, appellants claim the trial court erred in granting summary judgment because the Colombian regulation, on which summary judgment was sought, was never effective due to lack of required official publication. In point of error seven, appellants claim the issue of enforceability of the regulation is a fact

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issue because the proof consisted of competing affidavits.

Appellants contend Colombian law precludes the effectiveness of regulations until they have been published in Colombia's Diario Oficial. In support of this argument, appellants produced the affidavits of Dr. Guillermo Salah Zuleta, attorney and professor of Colombian Administrative Law, and Dr. German Sarmiento Palacio, a Colombian attorney for the plaintiffs. Dr. Zuleta stated that, in his expert opinion, the regulation "never came into force and effectiveness under the Columbian law" because the regulation had never been published. Dr. Palacio stated that the lack of publication led to lack of enforcement of the regulation and that, even if it had been published, it would be subject to attack on a number of theories. An affidavit by Javier Guarin, an attorney employed by Dr. Sarmiento, states that he checked all issues of the Diario Oficial and found no publication of the regulation in question. Appellants further attached a letter from the Ministry of the Environment, Legal Office, offering its opinion that the regulation was not effective because it had not been published. This same letter includes a concession that the Ministry of the Environment "is not the competent authority to certify said [regulation]...."

Appellee filed a formal notice of its intent to rely on foreign law and asked the trial court to take judicial notice of the laws of Colombia that barred fishing in the spill area. Appellee provided the court with the original Spanish version of the regulation as well as an English translation. These materials were attached to the affidavits of Oswaldo Parra, a Colombian attorney and Legal Vice President of Dow Quimica, and Carlos Ramirez, a Colombian chemist for Dow Quimica de Colombia S.A. Appellee's motion was further supported by affidavits of Dr. Hernando Castilla Samper, a Colombian attorney. Dr. Samper discussed a "presumption of legality," based on a principle discussed in the book, THE ADMINISTRATIVE ACT by Gustavo Penagos. Based on this presumption, Dr. Samper observed that an act is enforceable until it is declared null by a competent court. Dr. Samper stated that there had been public notification about the regulation and he quoted from numerous news articles about the fishing ban. Dr. Samper also cited to a decision of the supreme court of Colombia in 1973 in which the court stated: "When a law provides that its enforceability begins upon its issuance, or similarly, upon its signing, that is the time when its enforceability begins, unless prevented by a mandate of a superior rank ...." [citation omitted]. Thus, Dr. Samper concluded that the regulation was enforceable.

Summary judgment is proper when a movant establishes there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. See American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true, resolving all doubts and indulging all reasonable inferences in favor of the nonmovant. See id.

Rule 203 of the Rules of Evidence provides that "[t]he court, and not a jury, shall determine the laws of foreign countries." TEX.R. CIV. EVID. 203. Rule 203 is a hybrid rule by which presentation of the law to the court resembles presentment of evidence, but which the court ultimately decides as a matter of law. See Gardner v. Best Western Int'l, Inc., 929 S.W.2d 474, 483 (Tex.App.-Texarkana 1996, writ denied). Thus, the determination of the law of a foreign country presents the court with a mixed question of law and fact. See id. Summary judgment is not precluded when experts disagree on the interpretation of the law if, as in this case, the parties do not dispute that all of the pertinent foreign law has been properly submitted as evidence. See id. Where experts disagree on application of the law to the facts, the court is presented with a

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question of law. See id. When the only evidence before the court is the uncontroverted opinions of a foreign law expert, a court generally will accept those opinions as true as long as they are reasonable and consistent with the text of the law. See id. On appeal, we must determine whether the trial court reached the proper legal conclusion. ³ See Luecke v. Wallace, 951 S.W.2d 267, 272 (Tex.App.--Austin 1997, no writ).

The authorities submitted in the trial court indicate that a lack of official publication may prevent enforcement of the regulation, but that no court has yet addressed this issue. Because neither party brought forward summary judgment proof of any authority holding the regulation ineffective or unenforceable, the trial court could have determined that, as a matter of law, appellants were seeking damages for an activity that, under present law, is illegal in Colombia. Whether or not the regulation could be enforced against appellants or other members of the public is a separate issue and one which must be answered by the Colombian courts.

Moreover, the regulation states "[it] shall become effective since [sic] the date of its execution," which in this case was June 2, 1977, well before the toxic spill occurred. Accordingly, the trial court could determine as a matter of law, based on the record before it, that the regulation became effective on June 2, 1977, despite a lack of official publication, and that fishing in the bay was illegal under this regulation at the time of the toxic spill. Thus, we find no error by the trial court in granting summary judgment on this ground. We overrule points of error one and seven.

Constitutional Violation

In point of error two, appellants claim the enforcement of the fishing ban regulation violates the Colombian constitutional rights of the plaintiff fishermen to due process and to earn a livelihood from "subsistence/artisanal" fishing. Appellants claim the Colombian constitution provides for a right to earn a living and renders ineffective any law or regulation conflicting with this right. In support of this claim, appellants produced Dr. Sarmiento's affidavit describing the constitutional right.

Appellee responds that the Colombian constitution does not recognize a right to earn a living. In support of its position, appellee produced the affidavit of Dr. Samper, who quoted article 39 of the constitution, which provides every individual with the freedom of choosing his or her own profession. This section further allows the government to regulate the practice of professions and to inspect professions regarding "ethics, safety and healthiness for the public." Based on this, appellee contends the government could place limitations on the practice of professions, such as fishing, for reasons of public safety and health. Neither party attached a copy of the constitution.

In his affidavit, Dr. Samper further argued that the issue of constitutionality should not affect the validity of the regulation until the Colombian court has declared the regulation unconstitutional. Samper explained that, although no case authority supports it, a presumption of legality should be applied until appellants challenge the constitutionality of the regulation in Colombian court.

Because appellants challenge the constitutionality of the regulation, appellants had the burden of producing some proof raising

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a fact issue. Appellants included with their response no case law or copy of the Colombian constitution raising a fact issue regarding the constitutionality of the regulation in question. Furthermore, appellants do not challenge Dr. Samper's quotation of the constitutional provision. We overrule point of error two.

Sunset Provision of Regulation

In point of error three, appellants contend the trial court erred in granting summary judgment because there was a material fact question concerning a sunset provision of the regulation. The regulation provides in part:

ARTICLE FIRST-While the contamination in the aquatic ecologic system of the Bay of Cartagena persists, there shall be suspended all uses made according to law and the permits, patents, authorizations and licenses granted for the...