Cole v. Lee
| Decision Date | 15 November 1968 |
| Docket Number | No. 17108,17108 |
| Citation | 435 S.W.2d 283 |
| Parties | Elaine R. COLE, Appellant, v. Sidney LEE, Appellee. . Dallas |
| Court | Texas Court of Appeals |
Anthony Atwell, of Atwell, Grayson & Atwell, Dallas, for appellant.
H. Louis Nichols, of Saner, Jack, Sallinger & Nichols, Dallas, for appellee.
Our former opinion is withdrawn and the following substituted therefor.
The appellant Elaine R. Cole appeals from an order of the trial court dismissing her suit under the doctrine of Forum non conveniens . She sued the appellee Sidney Lee, her former husband, to set aside portions of a 'Property Settlement and Separation Agreement' entered into between them, for specific performance of other portions of the agreement, for damages, and to recover her half interest in the Texas real estate they had accumulated during their marriage. The appellee, having been served in the Virgin Islands with citation in the present suit, filed a special appearance pursuant to Rule 120a, Vernon's Texas Rules of Civil Procedure, wherein he asserted that, because the divorce proceedings had been in the Virgin Islands, where both parties then resided and still reside, and where the attorneys on both sides of the divorce case reside, and where the property settlement agreement was entered into, and where the records with regard to the making of the property settlement agreement and with regard to the property owned by the parties are maintained, the court should decline, under the doctrine of Forum non conveniens, to exercise jurisdiction over the property of the parties or over the person of appellee. The trial court sustained the motion and dismissed the suit.
By three points of error on appeal, the appellant says this action of the court was erroneous: (1) because this is a suit In rem to recover title to Texas real estate, and that the doctrine of Forum non conveniens is only applicable, if at all, to transitory actions; (2) because the trial court had full authority and jurisdiction to hear the case by virtue of Vernon's Ann.Civ.St., Art. 1975, which removed any discretion which the trial court may have previously had; and (3) because the facts of the case show an integral relationship with the State of Texas; because the courts of Texas are the only courts which can finally determine the issues presented under the intricacies of Texas community property and real estate law, and the law of marital rights; also because it was not shown that any other forum was available to the parties. These points are so closely related that they will be discussed and disposed of together.
In Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947), the court set forth factors which should be considered in determining whether a court should 'resist imposition upon its jurisdiction' on the principle of Forum non conveniens, including the private interest of the litigants, the relative ease of access to sources of proof, the availability of compulsory process for the attendance of unwilling, and the cost of obtaining attendance of willing, witnesses, 'and all other practical problems that make trial of a case easy, expeditious and inexpensive .' It is pointed out that the court should weigh the relative advantages and obstacles to fair trial, and also consider the enforcibility of the judgment to be rendered. The court also said:
'It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex', 'harass', or .
The doctrine has been applied only sparingly in Texas, although it has been recognized and discussed in Texas appellate decisions for many years. Forcum-Dean Co. v. Missouri Pacific Railroad Co., 341 S .W.2d 464 (Tex.Civ.App., San Antonio 1960, writ dism'd). The cited case was a suit for damages to cantaloupes shipped from Colorado to New York City. The trial court, applying the doctrine in question, dismissed the suit, and the Court of Civil Appeals affirmed, holding that the facts were such as would justify the court in exercising its discretion, the action being transitory.
Our Supreme Court, in Flaiz v. Moore, 359 S.W.2d 872 (Tex.1962), while tacitly recognizing the applicability of the doctrine in a proper case in Texas, made it clear that it was not at that time considering or attempting to decide 'the extent to which the * * * principle is recognized in Texas.'
We have found no Texas case asserting that the doctrine is inapplicable in the state, and we therefore proceed on the assumption that it is applicable in a proper case, and that our only task is to decide whether this particular action is primarily a transitory one to which the principle may properly be applied, or whether it is essentially a local action In rem in which the doctrine may not properly be applied. To determine the nature of the action and its proper classification, we examine the appellant's petition.
She alleged that she and the appellee were residents of the Virgin Islands; that they were married at Dallas on June 4, 1944, were domiciled at Dallas until 1963, when they removed to the Virgin Islands; that while married they acquired much community property, including but not limited to the Texas real property described in Exhibit A to the petition; that on January 3, 1966 the parties were divorced by decree of the district court of the Virgin Islands; that in anticipation of such divorce, on November 8, 1965, the parties made the property settlement agreement in question a copy being attached as Exhibit B to the petition; that the property settlement was not fair and equitable because it failed to give appellant a fair and equitable share of the community property; that appellee fraudulently misrepresented and concealed the extent, amount and value of the community property to induce her to enter into the agreement; that there was no consideration for her agreement that appellee have more than half of the community property because the rest of the agreement gave appellant no more than she was entitled to as a matter of law; and that the agreement was void insofar as it purported to partition the community property and that appellant still owns an undivided one-half interest in the Texas realty; that appellant offers to do equity and to restore to appellee whatever consideration, if any, the court shall determine she received under the 'void portions of said agreement.' Then followed allegations required by Rule 783, T.R.C.P., of a petition in trespass to try title.
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