Sarieddine v. Moussa

• Court: Texas Court of Appeals
• Writing for the Court: CHAPMAN
• Citation: Sarieddine v. Moussa, 820 S.W.2d 837 (Tex. App. 1991)
• Decision Date: 02 October 1991
• Docket Number: No. 05-90-01035-CV,05-90-01035-CV
• Parties: Samir Rachid SARIEDDINE, Appellant, v. Atef Jawad MOUSSA, Appellee.

Page 837

820 S.W.2d 837

Samir Rachid SARIEDDINE, Appellant, v. Atef Jawad MOUSSA, Appellee.

No. 05-90-01035-CV.

Court of Appeals of Texas Dallas.

Oct. 2, 1991.

Rehearing Denied Nov. 12, 1991.

T. Ray Guy, Dallas, for appellant.

Bruce Priddy and Keith C. McDole, Dallas, for appellee.

Before STEWART, KINKEADE and CHAPMAN, JJ.

OPINION

CHAPMAN, Justice.

Samir R. Sarieddine sued to recover on a note on which Atef Jawad Moussa defaulted. Sarieddine's sole point of error is that the trial court erred in dismissing the case under the doctrine of forum non conveniens. We reverse and remand.

FACTS

Affidavits on file show that Sarieddine, a Lebanese citizen, has resided in Bellevue, Washington, since 1987. ¹ Moussa, also a Lebanese citizen, has resided in Bahrain since 1981. ²

In 1981, Moussa agreed to purchase all of Sarieddine's stock in C.M.C. Group, a Luxembourg corporation, for $4.4 million. Moussa defaulted under the 1981 agreement and a second agreement. A third agreement was negotiated by telephone and correspondence in 1986, with Sarieddine negotiating from Seattle and Moussa from Bahrain. Pursuant to the agreement, Moussa would pay Sarieddine the remaining $1,846,000 owed in installments. The 1986 agreement also contained the following forum selection clause with respect to actions under the agreement or note:

Any action to enforce the terms of this Agreement or any promissory or installment note ... may be brought in the court of any jurisdiction in which Moussa or any of his property or assets is located....

(Emphasis added.) In May 1988, Moussa defaulted a third time.

On or about May 28, 1988, a court in Abu-Dhabi served Moussa with a Provisional Attachment Order (the Attachment Order) prohibiting Moussa from making any payments to Sarieddine to the extent of 1,498,978 UAE dirhams (approximately $409,000) and 10,000 UAE dirhams (approximately $2,725) in court costs. Instead, Moussa was to pay a third party this amount owed under the Attachment Order. Sarieddine has employed counsel in Abu-Dhabi to appeal the judgment ³ that resulted in the Attachment Order.

Sarieddine filed suit in Dallas, Texas in February 1990 to recover approximately $1.5 million still owed by Moussa under the 1986 agreement and note. Moussa was personally served in Dallas on February 9, 1990. The trial court dismissed the case under the doctrine of forum non conveniens.

FORUM SELECTION CLAUSE

Sarieddine asserts that the forum selection clause precludes Moussa from asserting forum non conveniens. A forum selection clause is a valid means of asserting personal jurisdiction over a party. Monesson v. National Equip. Rental, Ltd., 594 S.W.2d 780, 781 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.). A valid selection clause can also be treated as a waiver by the moving party of its right to assert its own convenience as a factor favoring transferring the case from the agreed forum. Plum Tree v. Stockment, 488 F.2d 754, 758 n. 7 (3rd Cir.1973). Although Sarieddine cites no Texas authority, and we find none on point, federal case law persuades us that a trial court is not bound by the forum selection clause agreement if the interests of the witness and of the public strongly favor transferring the case to another forum. Id. While the forum selection clause might confer personal jurisdiction, we hold that it does not preclude consideration of a motion to dismiss on the theory of forum non conveniens. We will, therefore, consider the forum selection clause only as a factor in determining whether the trial court erred by dismissing this case under forum non conveniens.

Moussa contends that the forum selection clause is not valid because it is too vague. Affidavits show that the clause in question was contested and bargained for. Moussa proposed the terms "in any appropriate jurisdiction" rather than the "is located" language. After Sarieddine rejected Moussa's proposal, Moussa agreed to the "is located" language. Moussa now argues that the term "is located" means wherever he resides. Sarieddine argues that the forum selection clause entitles him to sue Moussa wherever Moussa can be personally served. We hold that Sarieddine's interpretation is more consistent with the common sense meaning of the word "located."

FORUM NON CONVENIENS

A. Forum Non Conveniens Defined

The doctrine of forum non conveniens is an equitable doctrine exercised by courts to resist imposition of an inconvenient jurisdiction on a litigant, even if jurisdiction is supported by the long-arm statute and would not violate due process. A trial court will exercise the doctrine of forum non conveniens when it determines that, for the convenience of the litigants and witnesses and in the interest of justice, the action should be instituted in another forum. Van Winkle-Hooker Co. v. Rice, 448 S.W.2d 824, 826 (Tex.Civ.App.--Dallas 1969, no writ). In determining whether to dismiss a case under the doctrine of forum non conveniens, the trial court must weigh a number of factors. Appropriate factors in applying the doctrine of forum non conveniens were detailed in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Texas courts have adopted the Gilbert factors. McNutt v. Teledyne Indus., Inc., 693 S.W.2d 666, 668 (Tex.App.--Dallas 1985, writ dism'd); see also Cole v. Lee, 435 S.W.2d 283, 285 (Tex.Civ.App.--Dallas 1968, writ dism'd); Forcum-Dean Co. v. Missouri Pac. R.R., 341 S.W.2d 464, 466 (Tex.Civ.App.--San Antonio 1960, writ dism'd). Factors to be considered are the private interests of the litigants, the relative ease of access to sources of proof, the availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance from willing witnesses. Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. Other factors, known as "public factors," include the burden imposed upon the citizens of the state, the burden on the trial court, and the general interest in having localized controversies decided in the jurisdiction in which they arose. Gulf Oil, 330 U.S. at 507-08, 67 S.Ct. at 842-43. Another consideration is whether a judgment obtained in this jurisdiction will be enforceable. Flaiz v. Moore, 359 S.W.2d 872, 874 (Tex.1962). However, "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843.

B. Jurisdiction

Before a court may invoke forum non conveniens, the court must find that it has jurisdiction over the defendant. McNutt, 693 S.W.2d at 668. Since Moussa was personally served in Dallas, Texas, he agreed that the trial court has jurisdiction over him due to the holding in the recent United States Supreme Court case, Burnham v. Superior Court of California, 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990) (jurisdiction based on physical presence alone constitutes due process). Because Moussa conceded jurisdiction, it is not necessary to determine whether Moussa maintained "minimum contacts" with Texas or whether his activities were "continuous or systematic" so that the exercise of general jurisdiction over Moussa would not offend "fair play and substantial justice." McNutt, 693 S.W.2d at 668; see generally Guardian Royal Exchange Assur., Ltd. v. English China Clays P.L.C., 815 S.W.2d 223 (Tex.1991).

C. The Validity of Forum Non Conveniens in Texas

The first question we address is whether Texas still recognizes forum non conveniens after the recent Texas Supreme Court holding in Dow Chemical Co. v. Alfaro, 786 S.W.2d 674 (Tex.), cert. denied, 498 U.S. 1024, 111 S.Ct. 671, 112 L.Ed.2d 663 (1990). The court in Alfaro ruled that section 71.031 of the Civil Practice and Remedies Code abolished forum non conveniens in cases involving personal injury and wrongful death. Alfaro, 786 S.W.2d at 679. Sarieddine asserts that Alfaro has abolished forum non conveniens for all cases or, alternatively, that section 17.042 of the Texas Civil Practice & Remedies Code and rule 108 of the Texas Rules of Civil Procedure have abolished forum non conveniens in Texas.

In Alfaro, Costa Rican workers and their wives sued Dow Chemical Company and Shell Oil Company in Houston, Texas, under section 71.031 of the Civil Practice and Remedies Code for injuries suffered in Costa Rica. Section 71.031(a) provides:

(a) An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country....

TEX.CIV.PRAC. & REM.CODE ANN. § 71.031(a) (Vernon 1986). The Texas Supreme Court held in Alfaro that the phrase "may be enforced in the courts of this state" contained in section 71.031 is mandatory. The court concluded that forum non conveniens had been statutorily abolished for cases arising out of section 71.031. Alfaro, 786 S.W.2d at 679. Alfaro is strictly limited to personal injury and wrongful death suits filed under section 71.031 of the Civil Practice and Remedies Code. See Alfaro, 786 S.W.2d at 679. Section 17.042, the Long Arm Statute, as well as sections 17.043 and 17.044 addresses the extent of personal jurisdiction granted to Texas courts by outlining who can be served. TEX.CIV.PRAC. & REM.CODE ANN. §§ 17.042, 17.043, 17.044 (Vernon 1986). Sections 17.043 and 17.044 provide only for service of process. TEX.CIV.PRAC. & REM.CODE ANN. §§ 17.043, 17.044 (Vernon 1986). There is no mandatory language in these statutes to justify holding that they abolish forum non conveniens. These statutes merely outline over whom Texas courts can acquire personal jurisdiction. While a trial court may be required to find jurisdiction over the defendant, there is no language in the statutes prohibiting the trial court from dismissing the case under a theory of forum non conveniens.

Concerning rule 108 of the Texas Rules of Civil...