First Financial Trust Co. v. Scott

• Decision Date: 18 November 1996
• Docket Number: No. 23283,23283
• Citation: 1996 NMSC 65,122 N.M. 572,929 P.2d 263
• Parties: FIRST FINANCIAL TRUST COMPANY, as personal representative of the Estate of Donald Siglock and conservator for Aubrey Heather Siglock, Jennifer Dawn Rogan, Tamara Shane Rogan, and Christopher William Rogan, and Linda Siglock, individually, Petitioners, v. The Honorable Robert H. SCOTT, Respondent, and Los Alamos Ski Club, Inc., Real Party in Interest.
• Court: New Mexico Supreme Court

Page 263

929 P.2d 263

122 N.M. 572

FIRST FINANCIAL TRUST COMPANY, as personal representative of the Estate of Donald Siglock and conservator for Aubrey Heather Siglock, Jennifer Dawn Rogan, Tamara Shane Rogan and Christopher William Rogan, and Linda Siglock individually, Petitioners, v. The Honorable Robert H. SCOTT, Respondent and Los Alamos Ski Club, Inc., Real Party in Interest.

No. 23283.

Supreme Court of New Mexico.

Nov. 18, 1996.

Butt, Thornton & Baehr, P.C., James P. Lyle, Albuquerque, for Petitioners.

Tom Udall, Attorney General, Santa Fe, for Respondent.

McClaugherty, Silver & Downs, Joe L. McClaugherty, Jere K. Smith, Santa Fe, for Real Party in Interest.

Michael B. Browde, William H. Carpenter, Albuquerque, for Amicus New Mexico Trial Lawyers Association.

OPINION

RANSOM, Justice.

1. As personal representative of the estate of David Siglock and as conservator for his surviving children, First Financial Trust Company seeks a writ of superintending control pursuant to Rule 12-504 NMRA 1996. First Financial filed an action under the wrongful death statute, NMSA 1978, § 41-2-1 (Repl.Pamp.1996), and Linda Siglock, individually as the widow of David Siglock, joined to assert a claim for loss of spousal consortium. Plaintiffs sued the Los Alamos Ski Club, Inc., in the Second Judicial District Court within Bernalillo County where First Financial has its principal place of business. The Ski Club, which operates the Pajarito Ski Area in Los Alamos County, moved to transfer venue based on the doctrine of forum non conveniens, asserting that the First Judicial District, Los Alamos County, was the appropriate forum for the action.

2. The district court found that the action had significantly more contacts with Los Alamos County than Bernalillo County and granted the motion to transfer the lawsuit. First Financial petitioned this Court for a writ of superintending control, seeking to quash the transfer of venue. After hearing oral argument, this Court granted an alternative writ of superintending control and ordered briefs and further argument on the issue whether forum non conveniens is or should be a doctrine available in New Mexico to allow intrastate transfer from one court to another. Holding that an intrastate doctrine of forum non conveniens does not exist in New Mexico, we make permanent the alternative writ of superintending control and quash the transfer of venue.

3. The accident. David Siglock, a resident of Los Alamos, New Mexico, was found dead at the foot of a ski run at the Pajarito Ski Area in Los Alamos. He apparently had lost control while skiing and was fatally injured when he struck a tree. He had been skiing down a beginners run named "I Don't Care" or another run named "One More Time," trails that intersect near where Siglock's body was found. The estate alleges it was "I Don't Care" and that the Ski Club intentionally had made this run, the only run classified for novices, unusually and dangerously fast for the purpose of videotaping a re-creation of a downhill race the following day. An employee of the Ski Club had skied the run earlier that day and determined that the run was very "hard, icy, and fast." The estate alleges that the employee expressed her concerns to a ski school instructor, but no action was taken. While there were no witnesses to the fatal accident, there were many witnesses to the condition of the ski run that morning.

4. Venue. The venue statute provides in relevant part that:

All civil actions commenced in the district courts shall be brought and shall be commenced in counties as follows and not otherwise:

A. First, except as provided in Subsection F of this section relating to foreign corporations, all transitory actions shall be brought in the county where either the plaintiff or defendant, or any one of them in case there is more than one of either, resides; or second, in the county where the contract sued on was made or is to be performed or where the cause of action originated or indebtedness sued on was incurred; or third, in any county in which the defendant or either of them may be found in the judicial district where the defendant resides.

NMSA 1978, § 38-3-1(A) (Cum.Supp.1996). Venue was proper in the Second Judicial District, therefore, because First Financial has its primary place of business within Bernalillo County.

5. Forum non conveniens. The doctrine of forum non conveniens recently was discussed in detail by this Court in Marchman v. NCNB Texas National Bank, 120 N.M. 74, 898 P.2d 709 (1995), and revisited again in Pierce v. Albertson's Inc., 121 N.M. 369, 371, 373, 911 P.2d 877, 879, 881 (1996). As we described it in Marchman, "The doctrine of forum non conveniens allows a court that has jurisdiction over the parties and subject matter involved to decline to exercise jurisdiction when trial in another forum 'will best serve the convenience of the parties and the ends of justice.' " Id. at 85, 898 P.2d at 720 (quoting Koster v. (American) Lumbermens Mut. Casualty Co., 330 U.S. 518, 527, 67 S.Ct. 828, 833, 91 L.Ed. 1067 (1947)).

6. This Court consistently has recognized the doctrine and has allowed its application on an interstate basis. See, e.g., Buckner v. Buckner, 95 N.M. 337, 338-39, 622 P.2d 242, 243-44 (1981) (discussing history of doctrine in New Mexico and defining the determinative factors in accordance with the "leading case on this doctrine," Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)). In State ex rel. Southern Pacific Transportation Co. v. Frost, 102 N.M. 369, 370, 695 P.2d 1318, 1319 (1985), we also recognized the intrastate application of forum non conveniens. It was apparently upon this authority that the district court relied in transferring this action from the Second Judicial District to the First Judicial District.

7. The trial court determined that justice would be better served if the case were heard in Los Alamos County instead of Bernalillo County, stating:

In rendering this decision, the Court considered the lack of any substantial connections between the facts of the case and the Second Judicial District. These include:

1. The accident allegedly happened in Los Alamos County;

2. The decedent resided in Los Alamos County;

3. The minor children reside in Los Alamos County 4. Many witnesses are located in Los Alamos County; and

5. Plaintiff Linda Siglock resides in Los Alamos County.

Plaintiff argues that because First Financial Trust Company has an office in Albuquerque, the matter should be heard in the Second Judicial District. First Financial Company is a consent Personal Representative for the purposes of the New Mexico Wrongful Death Act. This does not overcome the compelling reasons to transfer venue.

8. If the doctrine of forum non conveniens were to apply in this situation, the district court would not have abused its discretion had it dismissed the complaint. Granting a motion to transfer, however, is questionable aside from the propriety of any doctrine of intrastate forum non conveniens. The common law doctrine of forum non conveniens allows only for the dismissal of a lawsuit, not the transfer of a lawsuit. It is well established that a federal statute which allows transfer to any other federal district or division "[f]or the convenience of parties and witnesses," 28 U.S.C. § 1404(a) (1994), was enacted as an expansion of the common-law doctrine of forum non conveniens, not a codification of it. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253, 102 S.Ct. 252, 264, 70 L.Ed.2d 419 (1981) (noting that the statute "was intended to be a revision rather than a codification of the common law").

Section 1404(a) of Title 28 was adopted as part of the Judicial Code of 1948. It provides that "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Prior to its enactment it had been held that a federal court might dismiss an action brought in a proper, but inconvenient, district under the doctrine of forum non conveniens, but § 1404(a) was new in allowing transfer of an action from a district and division in which venue had been properly laid to some other, more convenient, district and division.

15 Charles A. Wright et al., Federal Practice and Procedure § 3841, at 319 (2d ed.1986) (emphasis added) (footnotes omitted).

9. Although the Frost Court ruled in favor of a transfer in response to a motion to dismiss for forum non conveniens, the Court nonetheless conditioned its remand for transfer of the case to Quay County on Southern Pacific's waiver of a potential statute-of-limitations defense that would have been applicable to dismissal rather than transfer. 102 N.M. at 371, 695 P.2d at 1320. It is evident that the adoption of a doctrine of intrastate transfer for forum non conveniens was not fully explored in Frost, and we have since refused to extend the holding of that case. See Team Bank v. Meridian Oil Inc., 118 N.M. 147, 151, 879 P.2d 779, 783 (1994) (declining to extend Frost "beyond its factual boundaries"); cf. Bracken v. Yates Petroleum Corp., 107 N.M. 463, 464, 760 P.2d 155, 156 (1988) (questioning "whether the distinction between proper and improper venue for the initial filing is a meaningful distinction for granting or denying nonstatutory authority to transfer"). We address the dispositive issue whether to recognize a doctrine of intrastate forum non conveniens without regard to whether transfer or dismissal is at issue.

10. Intrastate forum non conveniens. In Frost an employee of Southern Pacific filed a claim under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1976), in the district court of Guadalupe County. Southern Pacific filed a motion for change of venue on due process grounds, arguing it could not obtain a fair and impartial trial in Guadalupe County. In a special concurrence Justice ...