Finance v. Util. Trailers De Mexico
| Decision Date | 10 March 2011 |
| Docket Number | NO. 01-09-00281-CV,01-09-00281-CV |
| Parties | VINMAR TRADE FINANCE, LTD., Appellant v. UTILITY TRAILERS DE MEXICO, S.A. DE C. v. AND TRACTOCAMIONES KENWORTH DE MONTERREY, S.A. DE C. v. , Appellees |
| Court | Texas Court of Appeals |
Vinmar Trade Finance, Ltd. ("Vinmar"), a Cayman Islands corporation headquartered in Houston, Texas, brought suit against Mexican corporations Utility Trailers de Mexico, S.A. de C.V. ("Utility") and Tractocamiones Kenworthde Monterrey, S.A. de C.V. ("Kenworth") for fraud, civil conspiracy, and breach of contract in Harris County district court. The trial court, inter alia, granted Utility's special appearance and Utility's and Kenworth's motion to dismiss based on forum non conveniens.
In five appellate issues, Vinmar challenges the trial court's judgment dismissing its claims against Utility and Kenworth. Of these issues, the dispositive issue that we address is whether the trial court abused its discretion when it granted the defendants' motion to dismiss based on common law forum non conveniens. Because we hold that the trial court did not abuse its discretion, we affirm the judgment of the trial court.
Factual & Procedural Background
Vinmar is a corporation organized under the laws of the Cayman Islands with its headquarters in Houston, Texas. According to its website, Vinmar "has been successfully providing international trade, finance and logistics in emerging markets." Vinmar is part of The Vinmar Group, which has 26 offices and subsidiaries in 20 countries, including an agent in Monterrey, Mexico. It has over $1 billion in annual revenues.
Utility is a family owned business that sells new and used trailers. It is organized under Mexican law and headquartered in Mexico. Kenworth is a sellerof tractor-trucks. It is also a Mexican corporation with its principal place of business in Monterrey, Mexico.
Tracomsa, S.A., a Mexican transportation and trucking company, sought to purchase tractor-trucks from Kenworth and trailers from Utility. Tracomsa needed financing to purchase the equipment. A third-party intermediary, San Antonio Trade Group, introduced Tracomsa to Vinmar, which agreed to finance the equipment.
To facilitate the financing, representatives of Kenworth and Utility communicated, in Spanish, via email, telephone, and telefax with Vinmar's representative, Enrique Tamashiro. Some of the communications were initiated by Tamashiro, who was located in Houston, and some were initiated by representatives of Kenworth and Utility, who were located in Mexico. The communications served to provide information regarding Kenworth and Utility and to identify the equipment being purchased by Tracomsa. The communications indicated that Tracomsa intended to purchase 30 tractor-trucks from Kenworth and 28 trailers from Utility. Kenworth and Utility provided to Vinmar the serial and identification numbers of equipment to be purchased by Tracomsa.
Tracomsa and Vinmar signed an "Equipment Operating Credit Agreement" in which Vinmar agreed to finance the purchase of the trailers and the tractor-trucks. Attached to the agreement was a list of the 28 Utility trailers and 30Kenworth tractor-trucks, including serial numbers, to be financed by Vinmar. Utility and Kenworth were not parties to that agreement.
In addition to the communications, Tamashiro also traveled to Monterrey, Mexico to meet with representatives of Utility and Kenworth and to conduct due diligence with respect to the equipment. Tamashiro was accompanied by Jessica Linares, a representative of San Antonio Trade Group. While in Monterrey, representatives of Kenworth and Utility each signed a "Seller's Certificate," the contents of which would later be in dispute. Following the visit, Tracomsa gave Vinmar a promissory note in the principal amount of $4,978,549.80.
Kenworth and Utility also gave instructions to Vinmar regarding the wiring of funds. Vinmar wired $1,765,033.20 to Utility's bank account in Concord, California to pay for the 28 Utility trailers. Vinmar also wired $3,213,516.30 to Kenworth's bank account in Laredo, Texas to pay for the 30 Kenworth tractor-trucks.
Tracomsa then advised Kenworth that it was reducing its order from 30 truck-tractors to 14 truck-tractors and modifying certain unit specifications. Following the order reduction, Tracomsa further requested reimbursement of the excess funds held by Kenworth that had been received from Vinmar. In response, Kenworth authorized its bank in Laredo, Texas to refund $1,876,516.60 toTracomsa's bank, which was also in Laredo, Texas, with such sum reflecting the change in the order. Kenworth later delivered 14 truck-tractors to Tracomsa.
Tracomsa also notified Utility that it was changing its order with regard to the 28 trailers. Pursuant to the order change, Utility later delivered 386 tires and 15 trailers to Tracomsa. Utility refunded $608,536.00 to Tracomsa as a result of the order change. The funds were transferred from Utility's bank in California to Tracomsa's bank account in Laredo, Texas.
Tracomsa defaulted on its repayment obligation to Vinmar under the Promissory Note. With regard to the default, Vinmar sued Tracomsa in Monterrey, Mexico and then in Harris County, Texas.
In a separate action, Vinmar sued Utility and Kenworth in Harris County district court, the action from which the instant appeal arises. Vinmar alleges that Utility and Kenworth breached the respective Seller's Certificate signed by each seller. Specifically, Vinmar alleges that each Seller's Certificate prohibited the seller from transferring any of the funds to Tracomsa. Vinmar asserts that Utility and Kenworth breached the Seller's Certificates when each transferred funds to Tracomsa after Tracomsa changed the orders by reducing the amount of equipment it was purchasing.
Vinmar also sued Utility and Kenworth for fraud. Vinmar alleges that Utility and Kenworth made intentional misrepresentations and failed to disclosematerial facts regarding the sale of the equipment and the financing. Vinmar also asserts a claim for conspiracy. Vinmar alleges that Utility, Kenworth, and Tracomsa conspired to defraud it of the principal sum of $4,978,549.00. Vinmar later added San Antonio and its principal, Andrew Parker, as defendants.
Utility filed a special appearance asserting that it was not amenable to process issued by a Texas court because the trial court did not have personal jurisdiction over it. Utility asserted that it lacked the requisite minimum contacts with Texas to satisfy the requirements of due process. Kenworth and Utility, subject to its special appearance, also filed a motion to quash service contending that Vinmar had not been properly served them with process as required by international treaty.
In addition, Kenworth and Utility filed a motion to dismiss based on the common law doctrine of forum non conveniens. The defendants asserted that Mexico is the proper forum for Vinmar's suit against them.
To save time and expense, Kenworth and Utility each stipulated to certain facts for the limited purpose of supporting Utility's special appearance, the motions to dismiss based on forum non conveniens, and the motions to quash service. These written stipulations were filed in the trial court and appended to the motions. In addition, each defendant supported its motion to dismiss based onforum non conveniens with declarations signed by the defendant's corporate representatives and with declarations signed by a Mexican attorney.
To support dismissal based on forum non conveniens, the defendants asserted that Mexico provides an adequate forum for Vinmar's claims. Kenworth and Utility pointed out that the suit arose from the sale of equipment in Mexico between Mexican companies. They also pointed out that Vinmar is a Caymen Island company that although headquartered in Houston, has offices and subsidiaries in more 26 counties, including Mexico. Kenworth and Utility asserted that the vast majority of the events at issue occurred in Mexico. They further asserted that the alleged misrepresentations were made in Mexico, the Seller's Certificates were executed in Mexico, and the alleged conspiracy took place in Mexico. The defendants averred that the vast majority of the witnesses and documents relevant to this litigation are located in Mexico and are written in Spanish. Lastly, the defendants asserted that all of Vinmar's claims are governed by Mexican law.
Vinmar responded to the defendants' motions to dismiss based on forum non conveniens by asserting that private and public interest factors weighed in favor of keeping the suit in Texas. Because it is headquartered in Houston, Vinmar averred, "The State of Texas has a vested interest in the fair resolution of claims by its business owners." Vinmar also pointed to Kenworth's and Utility's acceptanceof the transfer of funds from Vinmar's Texas bank account. Vinmar also relied on Kenworth's transfer of funds from its Laredo bank account to Tracomsa's Laredo bank account and to Utility's transfer of funds from its California bank account to Tracomsa's Texas account. Vinmar asserted that "a majority of witnesses and documents with respect to these transfers are located in Texas." Vinmar claimed that co-defendant, Andrew Parker, and non-party witness, Jessica Linares, are located in Texas.
To continue reading
Request your trial