Owens-Illinois, Inc. v. Webb

• Decision Date: 09 April 1991
• Docket Number: INC,OWENS-ILLINOI,No. 6-90-085-CV,6-90-085-CV
• Citation: 809 S.W.2d 899
• Parties: , et al., Appellants, v. Marilyn Rose WEBB, et al., Appellees.
• Court: Texas Court of Appeals

Page 899

809 S.W.2d 899

OWENS-ILLINOIS, INC., et al., Appellants, v. Marilyn Rose WEBB, et al., Appellees.

No. 6-90-085-CV.

Court of Appeals of Texas Texarkana.

April 9, 1991.

Rehearing Overruled May 14, 1991.

Second Rehearing Overruled July 9, 1991.

Greg Bevel, DeHay & Blanchard, Dallas, Dennis Chambers, Atchley, Russell, Waldrop & Hlavinka, Texarkana, Larry D. Carlson, Baker & Botts, Luke Ashley, Thompson & Knight, D. Mark Davis, Bailey and Williams, Dallas, Gene M. Williams, Mehaffy & Weber, Beaumont, for appellants.

Scott Baldwin, Jr., Baldwin & Baldwin, Marshall, William W. Kilgarlin, Austin, for appellees.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Owens-Illinois, et al, appeals from a temporary injunction obtained by Marilyn Rose Webb, et al, ¹ in order to prevent Owens-Illinois from pursuing an injunction in a Canadian court. A single question is presented for review. Did the district court abuse its discretion by enjoining the appellants from pursuing an injunction in a foreign court which would prohibit the appellees from pursuing their Texas action? In short, we are dealing with an anti-anti-suit proceeding.

The underlying personal injury asbestosis suit was filed in the 71st District Court in Marshall, Texas, on July 29, 1988. The plaintiffs are 216 Canadian citizens: 98 residents of British Columbia, 79 residents of Alberta, 37 residents of Manitoba and 2 residents of New Brunswick. All of these plaintiffs are appellees in this appeal except for the 98 residents of British Columbia. The defendants (appellants) are numerous corporate manufacturers and distributors of asbestos products. All damages were alleged to have occurred in Canada. Appellants have made various jurisdictional and venue challenges, each of which failed.

On November 10, 1989, the Texas defendants began a proceeding in a trial court of British Columbia seeking to enjoin the British Columbian plaintiffs in the Texas action from pursuing their personal injury claims in a Texas court. The Canadian trial court granted the requested injunction on December 6, 1989, and the British Columbia Court of Appeals affirmed this action (as to all 98 British Columbian plaintiffs) by written opinion on November 5, 1990.

During this time (on November 20, 1989), appellees' counsel obtained a temporary restraining order from the Texas district court restraining the appellants from seeking similar injunctions in the other Canadian provinces. Immediately after the rendition of an opinion by the British Columbia trial court, on December 7, 1989, appellees' counsel withdrew his application for an injunction in the Texas court, and he agreed to a stay in the Texas trial court pending final resolution of the British Columbia appeal. He also requested that appellants not pursue similar anti-suit injunctions in the other Canadian provinces during the appeal. Appellants complied with this request.

On the day that the British Columbia Court of Appeals rendered judgment against the British Columbian plaintiffs, appellees' counsel obtained an ex parte temporary restraining order from the Texas district court. The order prevented appellants from seeking similar injunctions in the Canadian courts of the provinces in which the remaining parties resided. After a hearing on November 19, 1990, the Texas court granted a temporary injunction prohibiting the appellants from bringing an action in Canada to enjoin the appellees from proceeding with their Texas action. Appellants' appeal challenges this order.

On appeal from the entry of a temporary injunction, the sole question for determination by this Court is whether the trial court abused its discretion by issuing the temporary injunction. See Iranian Muslim Organization v. City of San Antonio, 615 S.W.2d 202, 208 (Tex.1981). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the factors present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, 701 S.W.2d 238 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

This is not a case concerning jurisdiction. Both Canadian courts and Texas courts would have jurisdiction of the underlying suits. The natural forum would be Canada because the circumstances that gave rise to the suit occurred in Canada, and the plaintiffs are citizens of Canada; however, while the natural forum is a major consideration under the doctrine of forum non conveniens, the Supreme Court of Texas has ruled that the doctrine is not applicable to this type of proceeding. Dow Chemical Co. v. Castro Alfaro, 786 S.W.2d 674, 688 (Tex.1990).

The appellants contend in a supplemental brief that the real party in interest in these proceedings are the provincial workers' compensation boards. The workers' compensation boards are entitled to seek subrogation of the amounts paid in workers' compensation in any settlement or award obtained against third parties. This, however, has no bearing on the outcome of this proceeding.

Appellants have also urged the unfairness of applying Texas law instead of Canadian law. That issue is not before this Court at this time. Section 71.031(c) of the Texas Civil Practice and Remedies Code requires that the court shall apply the rules of substantive law that are appropriate under the facts of the case. TEX.CIV.PRAC. & REM. CODE ANN. 71.031(c) (Vernon 1986). The Texas Supreme Court in Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979), has ruled that all conflict cases sounding in tort will be governed by the "most significant relationship" test as enunciated in the American Law Institute's Restatement (Second) of Conflicts. The trial court will determine the appropriate law to be applied.

The doctrine of forum non conveniens gives discretionary power to the court to decline jurisdiction when convenience of parties and ends of justice would be better served if the action were brought and tried in another forum. This doctrine does not apply because it has been statutorily abolished for wrongful death and personal injury actions arising out of an incident in a foreign state or country. Dow Chemical Co. v. Castro Alfaro, 786 S.W.2d 674; TEX.CIV.PRAC. & REM. CODE ANN. § 71.031(a) (Vernon 1986). According to the Supreme Court ruling in the Dow Chemical case, the trial court no longer has a right to decline jurisdiction in wrongful death and personal injury action arising out of an incident in a foreign state or country.

As the present case involves two sovereigns with concurrent jurisdiction to decide the controversy, the principle of comity requires that the trial court exercise its equitable power sparingly and only in very special circumstances. Gannon v. Payne, 706 S.W.2d 304, 306 (Tex.1986). "Comity," in the legal sense, has been defined as neither a matter of absolute obligation, nor a matter of mere courtesy and good will. It is, however, the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws. Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1894); see also Nowell v. Nowell, 408 S.W.2d 550, 553 (Tex.Civ.App.-Dallas 1966, writ dism'd), as cited in BLACK'S LAW DICTIONARY 267 (6th ed. 1990).

In the case of Gannon v. Payne, 706 S.W.2d 304, the Supreme Court held that the trial court abused its discretion in granting an anti-suit injunction involving the two sovereigns, Texas and Canada. The facts in the present case differ in two significant aspects from the facts in Gannon:

(1) In the Gannon case, the trial court had enjoined a Canadian citizen from bringing an action in Canada. In the present case, the trial court enjoined Texas resident corporations ² from bringing a suit in Canada to enjoin Canadian citizens from bringing their action in Texas.

(2) In Gannon, the matter had already been litigated in Canada, and the Canadian citizen was asking for a declaratory judgment based upon the prior judgment. In the present case, not only has the matter not been litigated in Canada, there is no parallel suit pending, ³ nor is there any pending litigation at any stage of the proceeding in Canada on the substance of this litigation.

There are no precise guidelines for determining the appropriateness of an anti-suit injunction or for deciding whether comity should be invoked. The circumstances of each situation must be carefully examined to determine whether the injunction is required to prevent an irreparable miscarriage of justice. Gannon v. Payne, 706 S.W.2d at 307. Anti-suit injunctions have been issued by courts (1) to protect their own jurisdiction, (2) to prevent evasion of important public policies of the forum nation, (3) to prevent a multiplicity of suits, or (4) to protect a party from vexation or harassing litigation.

In the present case, it appears that the Texas trial court granted the injunction for the purpose of protecting its own jurisdiction, i.e., if the appellants were allowed to enjoin the appellees in a Canadian action from further proceedings, the Texas court would lose its ability to proceed with the case. ⁴ A Texas court can enjoin its residents, be they corporate or individual, from seeking to enjoin the Texas court from proceeding with litigation over which it has jurisdiction. We do not find an abuse of discretion by the Texas trial court in protecting its jurisdiction under these circumstances.

Appellants next contend that the trial court abused its discretion by granting equitable relief to a party which did not come into court with clean hands. Before a party may seek an equitable remedy, that party must come before the court with clean hands. Omohundro v. Matthews, ...