Denise Schippers and Sharon Cox-Estep v. Mazak Properties, Inc., Estate of Paul Mazak, II Reba Y. Mazak, as Personal Representative of the Estate of Paul M. Mazak, II

OPINION
No. 04-10-00724-CV

Denise SCHIPPERS and Sharon Cox-Estep,
Appellants

v.

MAZAK PROPERTIES, INC.; Estate of Paul M. Mazak II; Reba Y. Mazak, as Personal
Representative of the Estate of Paul M. Mazak II, Deceased,
Appellees

From the 229th Judicial District Court, Duval County, Texas
Trial Court No. DC-10-25
Honorable Alex William Gabert, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Karen Angelini, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice

Delivered and Filed: July 13, 2011

AFFIRMED

Appellants Denise Schippers and Sharon Cox-Estep filed a wrongful death suit in Duval

County. Appellees Reba Mazak (“Reba”) and Mazak Properties, Inc. (“Mazak Inc.”) filed

special appearances. Appellees subsequently filed a joint motion to dismiss based on forum non

conveniens. The trial court granted Reba’s special appearance and granted the joint motion to

dismiss.
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On appeal, appellants contend the trial court erred: (1) in granting Reba’s special

appearance; (2) in granting the joint motion to dismiss based on forum non conveniens; (3) in its

findings of fact and conclusions of law; and (4) in failing to grant appellants’ motion to strike

Reba’s affidavits. We affirm.

BACKGROUND

Paul and Reba Mazak owned Mazak Inc. The Mazaks were Florida residents. Paul took

some friends, including Richard and Shane Schippers, hunting on a ranch in South Texas. The

ranch was purchased by Paul and Reba, but owned by Mazak Inc. Paul flew the party from

Florida in a plane purchased in Texas and owned by Mazak Inc. Shortly after take-off from the

Uvalde, Texas airport, on the return trip to Florida, the plane crashed near Benavides, Texas.

Sadly, everyone on board was killed.

Denise Schippers is Richard’s daughter and Shane’s sister. Sharon Cox-Estep is

Richard’s ex-wife and Shane’s mother. They filed a wrongful death suit in Duval County against

Mazak Inc., the Estate of Paul Mazak, and Reba, as personal representative for the Estate.

Mazak Inc. and Reba filed individual special appearances and, as noted above, Mazak

Inc. and Reba also filed a joint motion to dismiss based on forum non conveniens. In that

motion, they argued Texas was not a convenient forum because: (1) all parties, including

appellants and Reba, were residents of Florida; (2) Mazak Inc. was a Florida corporation; (3)

Florida was the more appropriate forum because maintaining suit in Texas would work a

substantial injustice on Mazak Inc. and Reba as they were Florida residents and did not maintain

residences or places of business in Texas; (4) access to proof would be easier in Florida than in

Texas; and (5) the private and public interests would be better served if the case were heard in

Florida.

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The trial court granted Mazak Inc. and Reba’s motion to dismiss, and granted Reba’s

special appearance. The trial court then entered findings of fact and conclusions of law. Among

other things, the trial court found:

• all parties, including the deceased, resided in Florida at the time
of the accident;

• the estates for the three decedents were being administered in
Florida;

• the appellants’ relationships with the decedents centered in, and
stemmed from, their contacts in Florida;

• witnesses with knowledge of these relationships were in Florida;
and

• witnesses necessary to prove and defend against the allegations
were in Florida.

Appellants then perfected this appeal.

FORUM NON CONVENIENS

Addressing Forum Non Conveniens as to Reba

We recognize courts must generally address issues of jurisdiction, e.g., special

appearances, before other issues. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 443 (Tex. 1993). However, the United States Supreme Court created an exception for

certain non-merits, non-jurisdictional issues, including forum non conveniens. Sinochem Int’l

Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 432 (2007). In Sinochem Int’l, the Court

explained forum non conveniens is a non-merits basis for dismissal because it is a determination

that the merits of the claims should be decided elsewhere, rather than a decision regarding the

substantive law. Id. at 433. It saves the parties and court system delay and expense. Id. at 432.

The Court reasoned that because forum non conveniens is a non-merits basis for dismissal, it

may be disposed of before subject matter jurisdiction. Id. Before the decision in Sinochem Int’l,

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the Texas Supreme Court held a trial court shall not consider forum non conveniens “until and

unless the personal jurisdiction-due process determination is complete.” Dow Chemical Co. v.

Castro Alfaro, 786 S.W.2d 674 n. 8 (Tex. 1990); see also Antonio v. Marino, 910 S.W.2d 624,

629-30 (Tex. App.—Houston [14th Dist.] 1995, no pet.). However, in light of the decision in

Sinochem Int’l, we address the forum non conveniens issue as to Reba, because it is a

determination that the merits of the claims should be decided elsewhere, rather than a

determination regarding substantive law. 549 U.S. at 432. Forum non conveniens is dispositive,

without having to first consider Reba’s special appearance. Thus, it saves the parties and court

system delay and expense.

Our holding is in line with the decision of the First Court of Appeals in Vinmar Trade,

which was decided subsequent to Sinochem Int’l. Vinmar Trade Fin., LTD v. Util. Trailers De

Mexico, S.A. de C.V., 336 S.W.3d 664 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In that

case, as here, the plaintiff complained of both of the trial court’s orders granting a special

appearance and a motion to dismiss based on forum non conveniens. Id. at 671. The First Court

of Appeals held “judicial economy is best served by addressing the forum non conveniens issue

first because it pertains to the dismissal of [plaintiff’s] claims against [defendants].” Id. at 672.

The court relied on the reasoning in Sinochem Int’l to reach its conclusion.

Based on the reasoning in Sinochem Int’l, we hold it is proper to address the trial court’s

order granting the motion to dismiss based on forum non conveniens before we address its order

granting Reba’s special appearance.

Standard of Review

A trial court’s ruling on a motion to dismiss for forum non conveniens is reviewed for an

abuse of discretion. In re Gen. Elec. Co., 271 S.W.3d 681, 685 (Tex. 2008). A trial court abuses

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its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding principles.

Id. As long as the trial court considered all of the relevant factors, which we list below, and

reasonably balanced these factors, “its decision deserves substantial deference.” Vinmar Trade,

336 S.W.3d at 673 (quoting Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31

(Tex. 2010)). As the reviewing court, we do not re-weigh the factors, but only ensure the trial

court acted within its sound discretion when it determined that dismissal was appropriate. See id.

at 676.

When considering whether to grant a motion to dismiss based on forum non conveniens,

the trial court “shall” consider whether:

(1) an alternate forum exists in which the claim or action may be
tried;

(2) the alternate forum provides an adequate remedy;

(3) maintenance of the claim or action in the courts would work a
substantial injustice to the moving party;

(4) the alternate forum, as a result of the submission of the parties
or otherwise, can exercise jurisdiction over all the defendants
properly joined to the plaintiff’s claim;

(5) the balance of the private interests of the parties and the public
interest of the state predominate in favor of the claim or action
being brought in an alternate forum, which shall include
consideration of the extent to which an injury or death resulted
from acts or omissions that occurred in this state; and

(6) the stay or dismissal would not result in unreasonable
duplication or proliferation of litigation.

TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b) (West 2008). It is not incumbent upon the

nonresident defendant to prove each of the preceding six factors because the trial court is only

required to consider a certain factor if evidence is presented with regard to that factor. See In re

Gen. Elec. Co., 271 S.W.3d at 687. The Legislature’s use of the word “shall” “requires dismissal

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of the claim or action if the statutory factors weigh in favor of the claim or action being more

properly heard in a forum outside Texas.” Id. at 686. Although the nonresident defendant must

carry this heavy burden, a plaintiff’s choice of forum is not dispositive. Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 255-56 n. 23 (1981).

Forum non conveniens comes into play when the nonresident defendant has no

significant connection to Texas. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506 (1947). Forum

non conveniens is an equitable doctrine that may be exercised to prevent the imposition of an

inconvenient jurisdiction on a nonresident defendant. Exxon Corp. v. Choo, 881 S.W.2d 301,

302 (Tex. 1994).

Analysis

Appellants contend the trial court abused its discretion in granting appellees’ motion to

dismiss based on forum non conveniens because the factors weigh in favor of jurisdiction in

Texas. In its Findings of Fact and Conclusions of Law, the trial court claimed it considered all of

the statutory factors when making its decision. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 71.051(b). We review the trial court’s decision by considering all of the statutory factors.

1. Does an alternate forum exist?

An alternate forum exists where the defendants are amenable to process. In re ENSCO

Offshore Int’l Co., 311 S.W.3d 921, 924 (Tex. 2010). Reba is a resident of Florida and Mazak

Inc. is incorporated in Florida. Reba and Mazak, Inc. are both amenable to process in Florida.

See Weiler v. Weiler, 861 So.2d 472, 477 n. 10 (Fla. Dist. Ct. App. 2003).

2. Does the alternate forum provide an adequate remedy?

“A forum is inadequate if the remedies it offers are so unsatisfactory they really comprise

no remedy at all.” In re ENSCO Offshore Int’l Co., 311 S.W.3d at 924. The court does not need

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to perform a comparative law analysis, see In re Gen. Elec., 271 S.W.3d at 688-89, and we hold

the trial court did not err in finding Florida would provide an adequate remedy for appellants

because the estate is being administered in Florida, and there have been other wrongful death

suits filed against the estate in Florida.

3. Does maintenance of the claim in Texas work a substantial injustice on the moving
party?

Appellants argue that because appellees own a ranch near Uvalde, it would not be a

burden for them to defend the suit in Texas. Appellees argue it would work a substantial

injustice on them to litigate elsewhere because the location of the witnesses and the cost

associated with litigating in Texas are great. However, as appellees point out, to prove damages

for wrongful death, appellants must produce evidence of their relationships with the decedents.

“All wrongful death actions are predicated on the proposition that a wrongful death necessarily

destroys any pre-existing family relationship.” Moore v. Lillebo, 722 S.W.2d 683, 685 (Tex.

1986); see also Mo.-Kan.-Tex. R. Co. v. Pierce, 519 S.W.2d 157, 159 (Tex. App.—Austin 1975,

writ ref’d n.r.e.) (explaining that parent may show “the character of the deceased and his

affection and disposition toward his parent,” and “proportion of his future earnings that he would

have probably contributed to the parent.”).

For appellants to prove the nature of their relationships with their father and son,

witnesses are needed to testify about these relationships. One potential witness, Heidi Schippers,

Shane’s widow, filed an affidavit stating she had personal knowledge of Shane’s family

relationships, had filed claims against the Estate of Paul Mazak in Florida because his estate is

being administered there, and that it would be an extreme burden for her to travel to Texas, with

two small children, to testify. If Florida witnesses are unwilling to testify, they cannot be

subpoenaed in Texas. See TEX. R. CIV. P. 176.3 (forbidding party from compelling witness to

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appear in county if that county is more than 150 miles from where witness lives). Thus,

appellees contend the suit would be more properly maintained in Florida.

On the other hand, appellants argue that because investigating law enforcement, other

non-party witnesses, and the plane wreckage are in Texas, it would be a substantial injustice if

the forum is Florida. In a wrongful death action, a plaintiff must show (1) wrongful or negligent

conduct of the defendant, and (2) the proximate cause resulting in death. Shell Oil Co. v.

Humphrey, 880 S.W.2d 170, 178 (Tex. App.—Houston [14th Dist.] 1994, writ denied). The

crash was investigated by the National Transportation Safety Board (the “NTSB”). Appellants

state that the accident investigators and witnesses would be subject to a subpoena to testify

because they are within the 150 mile range in Texas, but are not within subpoena range if the

case proceeds in Florida.

Even if true, the 150 mile requirement is obsolete because federal agency employees may

not be forced to comply with a state court subpoena if a valid regulation requires them not to

comply. Boron Oil Co. v. Downie, 873 F.2d 67, 70-71 (4th Cir. 1989). The NTSB “disfavors

the use of its personnel in enforcement proceedings,” and a party must acquire the NTSB’s

General Counsel’s approval before an employee may testify or produce any documents in their

custody.” 49 C.F.R. § 821.20(c). Appellees did not provide evidence to the trial court that they

had acquired the General Counsel’s permission to subpoena any of the NTSB crash site

investigators. Even if permission had been acquired, NTSB employees could testify in either

Texas or Florida.

Therefore, we hold the trial court did not abuse its discretion in weighing this factor in

favor of appellees.

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4. Does Florida have jurisdiction over all of the defendants?

There is no doubt Florida has jurisdiction over defendants Reba, Mazak Inc., and the

Estate of Paul Mazak because Reba is a Florida resident and Mazak Inc. is incorporated in

Florida. See Weiler, 861 So.2d at 477 n. 10.

5. Does the balance of private and public interest predominate in favor of the claim being
brought in Florida?

Appellants argue the private and public interests favor Texas as the forum. Public

interest factors include administrative difficulties, court congestion, requiring jury duty from a

community that has no ties to the litigation, local interest in having local controversies resolved

locally, and litigating a case in the forum from which the law will be controlling. In re Gen.

Elec., 271 S.W.3d at 691. As for the private interest factors, they include the ease of access to

the proof, whether compulsory process is available and costly, the possibility of viewing the

accident scene if necessary, and “other practical problems that make trial easy, expeditious, and

inexpensive.” Id.

Appellants argue the private interest factors weigh in favor of Texas jurisdiction because

a majority of the witnesses and the plane wreckage are in Texas. Appellants argue the public

interest factors weigh in favor of Texas because the crash occurred in Texas, was well

publicized, and it would not be an imposition on Texas citizens or courts. Appellants also argue

Texas law likely governs the claims because the alleged conduct causing the injury and the

injury both occurred in Texas.

In contrast, appellees contend that: (1) because a Florida court has already heard the

estate administration and some wrongful death claims related to the accident, and a court in

Texas “would be starting from scratch,” Florida would be a better forum; (2) Florida law

governs; (3) this is a “Florida-centric” dispute and should be heard by Florida jurors; (4) because

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this case impacts the lives of Florida residents, it should be tried in Florida; and (5) access to

proof of damages, i.e., witnesses willing to testify to appellants’ relationships with the decedents,

is in Florida.

As to the public interest factors, appellees argue: (1) because a Florida court has already

heard the estate administration and some wrongful death claims, and a court in Texas “would be

starting from scratch,” and Florida would be a better forum; (2) Florida law governs the suit; (3)

this is a “Florida-centric” dispute and should be heard by Florida jurors; and (4) because this case

impacts the lives of Florida residents, it should be tried in Florida. On the other hand, appellants

argue that because the crash occurred in Texas, Texas law governs and because it was well

publicized, trying the case in Duval County would not be an administrative burden.

Although the plane crash occurred in Texas, all of the parties and decedents were Florida

residents at the time of the crash. The only ties to Texas are the injury, Mazak Inc.’s ranch, and

the fact the plane was purchased in Texas.

Within the public interest factors, litigating the suit in the forum from which the law will

be controlling is a consideration. Here, there is a question of whether Florida or Texas law

would apply. In deciding choice-of-law issues, courts use the “most significant relationship” test

from the Restatements. Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000). In a torts

case, where the injury and tortious behavior occurred, the domicile of the parties, and the place

where the relationship between the parties is centered are all relevant factors to consider. Id.

(quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(2) (1971)). When a plaintiff

seeks compensatory damages from a nonresident defendant, where the injury occurred and where

the tortious behavior occurred become less important. Id. at 849. According to the Restatement,

when the place of injury is fortuitous, the place of injury is not as important in the determination.

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RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 cmt. e. As appellees point out, the plane

could have crashed anywhere between Texas and Florida.

The Texas Supreme Court stated “the most important contacts in determining which

state’s law governs compensatory damages will usually be the ‘ones with the most direct interest

in the plaintiff’s monetary recovery and/or the most direct in protecting the defendant against

financial hardship.”’ Torrington Co., 46 S.W.3d at 849 (quoting John B. Austin, A General

Framework for Analyzing Choice-of-Law Problems in Air Crash Litigation, 58 J. Air. L. & Com.

909, 965 (1993)). The court explained that it is the plaintiff’s domiciliary state that has the

stronger interest in seeing its own compensatory damages law applied. Id. at 850. Because

appellants are from Florida, the trial court could have concluded Florida would have a stronger

interest in seeing its own laws applied.

The trial court also heard evidence that the decedents’ estates were being administered

and suits against the estate were filed in Florida. Although appellants attempted to argue the

suits have been settled, there is no evidence of this in the record and therefore, is not before the

court on review. Because the Florida court tried the estate administration and wrongful death

suits, we hold the trial court did not err in finding the Florida court would be better equipped to

try this suit. The administrative burden would not be as great in a Florida court as opposed to a

Texas court that would be starting from scratch.

6. Does the dismissal result in unreasonable duplication or proliferation of litigation?

The trial court did not abuse its discretion in finding that trying this suit in the Florida

court would be more reasonable than trying it in Texas because the Florida court handling the

estate would be better equipped to hear the case. Additionally, by the trial court dismissing the

suit in Texas, it would not lead to duplication or proliferation of litigation. The entire suit in

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Texas would be dismissed. As stated above, there is no evidence in the record and appellants did

not prove the litigation in Florida has been settled. The alleged Florida settlement agreement, as

argued by appellants, is not in the record and therefore, not before this court.

Although some factors may weigh more in favor of appellants, the trial court considered

all of the relevant factors and reasonably balanced the parties’ interests. Therefore, we hold the

trial court did not abuse its discretion by granting appellees’ motion to dismiss for forum non

conveniens.

We overrule appellants’ second issue. Because this issue is dispositive of the appeal, we

do not reach appellants’ other issues.

CONCLUSION

Based on the foregoing, we affirm the trial court’s judgment.

Marialyn Barnard, Justice

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