In re Transcon. Gas Pipeline Co.

• Decision Date: 14 December 2017
• Docket Number: NO. 14-17-00451-CV,14-17-00451-CV
• Citation: 542 S.W.3d 703
• Parties: IN RE TRANSCONTINENTAL GAS PIPELINE COMPANY, LLC, The Williams Companies, Inc., Williams Partners L.P., and Black Marlin Pipeline LLC; Furmanite Corporation, Furmanite America, Inc., and Furmanite Worldwide, Inc.; Danos & Curole Marine Contractors, LLC; ES&H, Inc., and Environmental Safety & Health Consulting Services, Inc., Relators
• Court: Texas Court of Appeals

542 S.W.3d 703

IN RE TRANSCONTINENTAL GAS PIPELINE COMPANY, LLC, The Williams Companies, Inc., Williams Partners L.P., and Black Marlin Pipeline LLC; Furmanite Corporation, Furmanite America, Inc., and Furmanite Worldwide, Inc.; Danos & Curole Marine Contractors, LLC; ES&H, Inc., and Environmental Safety & Health Consulting Services, Inc., Relators

NO. 14-17-00451-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed December 14, 2017

Edward J. Murphy, Benjamin A. Escobar Jr., Allen Dwayne Hemphill, Jennifer C Hancock, Houston, TX, John Funderburk, John Jakuback, Baton Rouge, LA, Michael H. Bagot Jr., James Ted Rogers III, Stephen Craig Wilcox, New Orleans, LA, for Relator.

Kurt B. Arnold, Jonathan Findley, Cesar Tavares, Ryan Hamilton Zehl, Kevin Haynes, Matthew Martin, Russell S. Post, Robert D. Daniel, Houston, TX, John Michael Measells, Austin, TX, for Real party in interest.

Panel consists of Justices Christopher, Brown, and Wise.

Tracy Christopher, JusticeOn Thursday, June 08, 2017, relators "the Williams Defendants" (Transcontinental Gas Pipeline Company, LLC or "Transco," The Williams Companies, Inc., and Williams Partners L.P.), "the Furmanite Defendants" (Furmanite Corporation, Furmanite America, Inc., and Furmanite Worldwide, Inc.), "the ES&H Defendants" (ES&H, Inc. and Environmental Safety & Health Consulting Services, Inc.), "Danos" (Danos & Curole Marine Contractors, LLC), and Black Marlin Pipeline LLC ("Black Marlin") filed a petition for writ of mandamus in this Court. See TEX. R. APP. P. 52; TEX. GOV'T CODE ANN. § 22.221 (West Supp. 2017). In the petition, the relators ask this Court to compel the Honorable R. K. Sandill, presiding judge of the 127th District Court of Harris County, to vacate its ruling partially denying their respective motions to dismiss for forum non conveniens and to instead grant the motions in their entirety.

We conclude that the trial court did not clearly abuse its discretion in denying the motions to dismiss as they pertain to the claims of real party in interest Paula Rhodes. A trial court is prohibited from dismissing, on the ground of forum non conveniens, the claims of a Texas resident, and the evidence supports the trial court’s implied finding that Rhodes continuously resided in Texas at all relevant times, despite a temporary absence from the state. As to the remaining real parties in interest, we conclude that the evidence concerning the factors that must be considered when evaluating a forum non conveniens motion weigh overwhelming in favor of dismissal, and thus, the trial court clearly abused its discretion in denying the motions to dismiss as to those parties. We accordingly deny in part, and conditionally grant in part, the relators' petition for writ of mandamus.

I. BACKGROUND

This is a personal-injury case arising from an explosion and fire that occurred on October 8, 2015, at Compressor Station 62 in Gibson, Louisiana. The Station 62 facility receives unprocessed natural gas via pipeline from numerous offshore producers in the Gulf of Mexico. The incident occurred during a scheduled maintenance and clean-out of the slug catcher, which separates the incoming gas and liquids on site.

During the maintenance project, the facility was shut down and the slug catcher was isolated from hazardous vapors so that sludge accumulating inside the 42-inch diameter "liquids distribution header" could be removed. In preparation for the work, Transco employees prepared a Gas Handling Plan to isolate the structure. The Gas Handling Plan called for depressurization and draining of the gas and liquids in the slug catcher, followed by installation of air movers to purge it with fresh air. The Gas Handling Plan was based on the plan used during the last scheduled maintenance in 2010 and had been modified to address a change in the work scope that included replacement of a three-inch water dump line flange on the west end of the header. The work plan for the repairs themselves was a new plan, and it called for the use of inflatable bladders to isolate the header during "hot work" around the flange faces and the use of a plumbers plug at the site of the flange replacement. Subcontractor Danos was to assist with the cleaning and flange replacement, and it had further subcontracted some of the work, such as installing the bladders, with one of the Furmanite Defendants.

On the night of October 7, 2015, Transco operations supervisor John Turchin emailed personnel at Williams, Danos, and ES&H about the status of the project. He stated that the south header had been cleaned and that air bladders had been installed to the work on the flange needing repair. He added that a three-inch flange on the east end of the header was inspected and found to have excessive corrosion, and that the flange would be replaced the next day.

When a Danos welder struck an arc at the site of the three-inch flange on the east side of the header the next morning, vapors inside the header ignited. The explosion ejected the bladders, which struck and killed Danos employees Samuel Brinlee and Casey Ordoyne. Furmanite employee Jason Phillippe died from injuries sustained in the ensuing fire. Danos employees Wayne Plaisance Jr. and Walter Kidder survived their injuries.

The incident was investigated by the U.S. Department of Transportation’s Pipelines and Hazardous Materials Safety Administration ("PHMSA"), among others. Transco, the owner and operator of the facility, performed its own investigation described in its "Root Cause Analysis." Both PHMSA and Transco concluded that the reliance on an earlier Gas Handling Plan and the placement of air movers and inflatable bladders had resulted in an insufficient purge of hazardous vapors from the work areas.

A dozen wrongful-death and personal-injury suits were filed in Terrebonne Parish, Louisiana, where the incident occurred. Those suits were consolidated for discovery and trial. This suit, however, was filed in Harris County, Texas, by the following plaintiffs:¹

1. Louisiana resident Wayne Plaisance Jr., who seeks damages for his personal injuries;

2. Louisiana resident Walter Kidder, who seeks damages for his personal injuries;

3. Louisiana resident Judy Ordoyne, who seeks damages for the death of her son, Louisiana resident Casey Ordoyne;

4. North Carolina residents Kristine Phillippe, Nash Phillippe, Knox Phillippe, Memphis Phillippe, Susan White, and Albert White, and Illinois resident Michael Phillippe, all of whom seek damages for the death of Illinois resident Jason Phillippe;

5. Louisiana resident Richard Brinlee, who seeks damages for the death of his son, Louisiana resident Samuel Brinlee;

6. Samuel Brinlee’s mother Paula Rhodes, whose residency is disputed, and who seeks damages for his death; and

7. Samuel Brinlee’s daughter, Illinois resident Alisa Evans, who seeks damages for her father’s death.

The defendants moved to dismiss the case pursuant to the Texas forum non conveniens statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 71.051 (West Supp. 2017). After initially granting their respective motions, the trial court emailed questions to the parties about the residency of plaintiff Paula Rhodes. Before the parties responded, the trial court vacated the order granting the motions to dismiss and set a "status conference." At the status conference, the parties presented further argument for and against the motions to dismiss. The trial court then denied the motions to dismiss as to all plaintiffs except Alisa Evans.² The relators, defendants, below, ask us to compel the trial court to grant their motions as to the remaining plaintiffs. We stayed further proceedings pending our decision on the merits.

II. ISSUES PRESENTED

The relators argue that the trial court abused its discretion in changing its original order granting their motion to dismiss for forum non conveniens, because (1) Rhodes’s move to Texas after the forum non conveniens motion was filed is not grounds for maintaining any plaintiff’s action in Texas, (2) the evidence relevant to the factors to be considered in deciding the motion weighs overwhelmingly in favor of the dismissal of each plaintiff’s action, and (3) the trial court changed its initial ruling without new arguments or evidence.³

III. STANDARD OF REVIEW

To obtain mandamus relief, a relator generally must demonstrate that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal. See In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). Under this standard of review, we defer to the trial court’s factual determinations that are supported by evidence, but we review the trial court’s legal determinations de novo. See In re Labatt Food Serv., L.P. , 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. See In re Cerberus Capital Mgmt. L.P. , 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). If the trial court abuses its discretion in denying a forum non conveniens motion, the movant has no adequate remedy by appeal. See In re Gen. Elec. Co. , 271 S.W.3d 681, 685 (Tex. 2008) (orig. proceeding); In re Pirelli Tire, L.L.C. , 247 S.W.3d 670, 679 (Tex. 2007) (orig. proceeding) (plurality op.).

In personal-injury and wrongful-death actions, forum non conveniens motions are governed by Texas Civil Practice and Remedies Code section 71.051. Under the statute, the level of deference afforded to a plaintiff’s choice of forum depends upon whether the plaintiff is a Texas resident. Claims of a Texas resident, or of a derivative claimant of a Texas resident, may not be dismissed on the ground of forum non conveniens. See TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(e). If the plaintiff is not a Texas resident, or a derivative claimant of a Texas...