Opinion
05-22-01068-CV
06-20-2024
SALVADOR ESPARZA DEL POZO, Appellant v. ANGEL ALFONSO VALENZUELA JURADO, ZORAIDA MA. DE LAS MERCEDES VALENZUELA JURADO, FRANCISCO RUBEN VALENZUELA JURADO, MOISES BENEDICTO VALENZUELA JURADO, DAVID HENRY TUDOR VALENZUELA, AND HOWARD JOSEPH TUDOR VALENZUELA, Appellees
On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-07612
Before Justices Partida-Kipness, Pedersen, III, and Garcia
MEMORANDUM OPINION
BILL PEDERSEN, III JUSTICE
Appellant Salvador Esparza del Pozo appeals the trial court's July 8, 2022 Order Granting Defendants' Amended Motion to Dismiss Based on Forum Selection Clause and Forum Non-Conveniens (the Order), which dismissed all of Esparza's claims against appellees without prejudice. Esparza raises three issues in this Court:
(1) The trial court erred if it dismissed his claims based on a forum selection clause in a contract he never signed and to which he was not a party; and
(2) The trial court erred if it dismissed his claims based on the doctrine of forum non conveniens, because
(a) no evidence established the threshold requirements of availability and adequacy of appellees' proposed forum, and
(b) appellees' inconvenience arguments were not based on Esparza's pleadings or on witnesses that would actually be needed in connection with his claims.
We affirm the trial court's Order.
Background
Appellees, members of the Valenzuela family who live in the United States, inherited a large piece of land in San Luis Potosi, Mexico (the Property). Appellees wished to have the Property subdivided, developed, and sold. The parties agree that Esparza introduced appellees to Urbanicasas, with whom appellees contracted to develop the Property. The Property was placed in a trust, and at least one portion of the Property was sold and developed as the location of a gas station. In this lawsuit, Esparza claims he is entitled to a percentage (3.5%) of the payment appellees received from that sale. However, the parties disagree about the nature of any legal relationship between them.
At the time the trial court heard appellees' amended motion to dismiss, Esparza's live pleading was his First Amended Petition, which asserted claims for breach of oral contract and fraud; alternatively, he pleaded claims for promissory estoppel, quantum meruit, unjust enrichment, and a declaratory judgment that would incorporate the terms of his oral contract. Esparza contends that that he and appellees entered into a valid, enforceable contract whereby he would promote appellees' company, connect them "with the right people," and provide "the service of arranging all of the parts necessary to accomplish the subdivision and sale of the Property." In return, Esparza would receive "a 3.5% interest in the improved real property and would receive this interest on the sale of any of the whole or partial sales of the Property." Esparza pleaded that he performed fully by successfully promoting and bringing in a developer and construction company to get the land re-platted. He claims that appellees breached the oral agreement by refusing to pay him his percentage of the sale appellees received for the land that had been developed and sold.
Esparza's fraud claim is in the nature of fraud in the inducement. He pleaded: it has become clear that [Esparza} was defrauded by [appellees]. [Appellees] used [Esparza] to develop the real property in order to later sell the land they inherited. [Appellees] agreed [Esparza] would receive 3.5% of the new company and be paid out of the future sale of the land in exchange for his work. [Esparza] performed. [Appellees] never intended to pay [Esparza] and instead cut him out of the deal maliciously and intentionally.
Appellees deny the existence of an oral contract with Esparza. Although they acknowledge that Esparza introduced them to Urbanicasas, all parties agree that appellees' final agreement with the developer (the 2013 Agreement), makes no mention of Esparza.
An earlier version of the 2013 Agreement was executed in August 2011 by appellees and Urbanicasas (the 2011 Agreement). In that document, the parties addressed how the Property would be developed and sold. Although Esparza was not a party to the 2011 Agreement (indeed, he contends that he was unaware of the agreement until "much later"), it contains a provision stating that appellees would pay him 3.5% for his role in developing the Property. Esparza argued at the hearing on the amended motion to dismiss-and he urges in this Court as well-that this provision clearly evidences his oral agreement with appellees to receive 3.5% of sales proceeds.
Appellees respond that in August 2011, they were still in negotiations with Esparza concerning his role in the development of the Property. They acknowledge that the 2011 Agreement "designated [Esparza] as one of [appellees'] representatives for purposes of exercising [their] rights under the agreement." But they contend that before they could agree on what services Esparza would perform in that role, he notified them that he did not want to participate in the 2011 Agreement. "Instead, [Esparza] wanted to bring investors to buy the land so the investors could develop the land." Accordingly, in the 2013 Agreement, all references to Esparza were removed.
The 2011 Agreement and the 2013 Agreement (along with an intermediate 2012 version and the agreement placing the Property in trust) are attached to the Declaration of Zoraida Ma. de las Mercedes Valenzuela Jurado, which supported the amended motion to dismiss. All four documents are in Spanish; our discussion of their provisions depends upon the parties' representations.
Esparza contends that he learned of the sale of a portion of the Property only when he personally observed construction of the gas station in San Luis Potosi. He then sought, but was denied, a payment of 3.5% of the sales price of that piece of the Property.
Esparza filed suit June 15, 2021 in Dallas County, where one of the appellees resides. Appellees moved to dismiss Esparza's claims-and then amended their motion-relying on two legal arguments: (1) the 2011 Agreement contained a forum selection clause requiring disputes to be brought in the courts of San Luis Potosi, Mexico; and (2) those courts provide the most convenient forum for this lawsuit. The trial court granted the amended motion; its Order does not identify a particular ground on which the ruling was based.
This appeal followed. In this Court, Esparza argues against both of appellees' legal theories-the existence of a forum selection clause and forum non conveniens. Because we conclude that the latter theory is dispositive of the appeal, we limit our discussion to Esparza's second and third issues, which address forum non conveniens.
At appellant's request, we abated the appeal and required the trial court to make findings of fact and conclusions of law; the judge has filed an original set and an additional set of findings and conclusions.
Forum non Conveniens
Texas recognizes two legal sources of forum non conveniens analysis: actions for personal injury or wrongful death are governed by statute, see Tex. Civ. Prac. & Rem. Code Ann. § 71.051(i); all other types of actions are governed by the common law, see Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (per curiam). This business dispute, therefore, is governed by settled common law principles.
The rule of forum non conveniens simply posits that a court may resist imposition upon its jurisdiction even though jurisdiction is authorized by a general venue statute. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947). It recognizes that a plaintiff's choice of forum should sometimes yield to the public interest and the interest of fundamental fairness. In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 675 (Tex. 2007). In this context, the trial court's ultimate inquiry is where trial will best serve the convenience of the parties and the ends of justice. Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 527 (1947).
Resolution of that ultimate inquiry is committed to the sound discretion of the trial court. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). We give the trial court's decision substantial deference, and we will reverse its determination only if the record shows a clear abuse of discretion. Quixtar, 315 S.W.3d at 31, 35.
Availability of the Alternative Forum
In his second issue, Esparza argues that the trial court erred in granting the amended motion to dismiss based on forum non conveniens because appellees failed to meet the doctrine's threshold requirement-proof of the availability of the alternative forum. A trial court cannot dismiss a case for forum non conveniens unless another forum is available to the plaintiff. Rasul v. Rasul, No. 05-17-00612-CV, 2018 WL 6599018, at *2 (Tex. App.-Dallas Dec. 17, 2018, pet. denied) (mem. op.). "A forum is 'available' if the entire case and all the parties can come within the jurisdiction of that forum." RSR Corp. v. Siegmund, 309 S.W.3d 686, 710 (Tex. App.-Dallas 2010, no pet.).
Although Esparza frames his issue as a failure to meet both "availability and adequacy of the chosen forum," his arguments are limited to requirement of availability. Our discussion will be similarly limited.
Appellees contend that they established in the court below that they would submit to the Mexican courts' jurisdiction. In their amended motion to dismiss, they stated: "Defendants hereby agree to submit to the jurisdiction of courts of appropriate jurisdiction in San Luis Potosi." And at the hearing on the amended motion, counsel for appellees reminded the trial court that his clients "have all through our briefing said that they will subject themselves to jurisdiction in Mexico." Then counsel stated:
But to the extent there's any clarity needed, our motion tells the Court that we agree to submit ourselves to venue in Mexico . . . [so] all the parties can come within the jurisdiction of the Mexican court. So we know that Mexico is an available forum.
Esparza argues that appellees provided no evidence that they would submit to the Mexican courts' jurisdiction, contending-without citing authority-"that neither a lawyer's pleading that his clients will submit to the jurisdiction of his clients' preferred forum nor his unsworn statement in court to the same effect is evidence" sufficient to prove availability. We disagree.
We have said that a defendant may demonstrate the availability of a forum by stipulating that it would submit to personal jurisdiction there. Rasul, 2018 WL 6599018, at *3 (citing In re Oceanografia, S.A. de C.V., 494 S.W.3d 728, 732 (Tex. 2016)). A stipulation is "an agreement, admission, or concession made in a judicial proceeding by the parties or their attorneys respecting some matter incident thereto." Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex. 1998). Appellees offered their consent to jurisdiction in writing in their amended motion to dismiss, and they repeated that consent in open court at the hearing on the motion, i.e., in a judicial proceeding. The trial court accepted the stipulation, repeating it in its additional finding number 42: "Defendants have all consented to submit to the jurisdiction of the Mexican courts in San Luis Potosi and are amenable to process in Mexico." We conclude that appellees' stipulation was effective, and therefore it must be seen as evidence supporting San Luis Potosi as an available forum. Rasul, 2018 WL 6599018, at *3; see also Shepherd, 962 S.W.2d at 33 (when the trial court accepted the stipulation, it became conclusive on the issue); and see Fortenberry v. Great Divide Ins. Co., 664 S.W.3d 807, 814 (Tex. 2023) ("parties' stipulation regarding venue is probative evidence supporting the trial court's venue ruling").
Esparza focuses on the word "agreement" in this settled definition and declares that he has not agreed to the proposed forum. The alternative actions of "admission" or "concession" require no such agreement.
Esparza expresses skepticism that appellees will actually appear as they have conceded they will. But these appellees all agreed to try disputes arising under their written agreements in the Mexican courts of San Luis Potosi. Our opinion does not address whether appellees are legally bound by those forum selection clauses, but the clauses do evidence that when they were coming to agreements involving development of their Property, they agreed to try disputes in those courts.
When we consider the evidence supporting the trial court's determination that appellees consented to the jurisdiction of the courts in Mexico, we conclude that reasonable and fair-minded people could reach the same conclusion. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). The evidence is sufficient to support that determination.
Esparza's second argument on availability contends that appellees were required to waive their statute-of-limitations defense to prove availability. But while Esparza identifies cases in which such a waiver was offered, he cites no case in which it was required. We will not impose a novel requirement that a defendant waive its affirmative defense of limitations-or any other defense-before forum non conveniens may operate to move the case to a more convenient forum. Appellees pleaded the defense of limitations in their initial answer below. Esparza has provided us with no authority, and we have found none, that requires a defendant to waive its pleaded affirmative defenses before the principles of forum non conveniens will apply.
We discern no abuse of discretion in the trial court's conclusion that "[t]he entire case and all defendants can come within Mexico as a forum for adjudication of the dispute presented in this lawsuit."
We overrule Esparza's second issue.
Convenience: Location of Witnesses and Evidence
In his third issue, Esparza argues that the trial court erred in dismissing his claims based on forum non conveniens because its inconvenience decision "was apparently based on arguments that did not apply to Mr. Esparza's actual pleadings or the witnesses that would actually be needed in connection with the pleaded causes of action." His reference here is to appellees' contention that-except for their own presence in Texas-all other documentary evidence, the real property, and witness testimony is in Mexico.
Esparza contends that his case and claims are limited to the facts necessary to prove his oral argument, which he summarizes as follows:
The witnesses to whether there was an oral agreement to pay Mr. Esparza, whether he performed services, whether he was paid for those services, and the agreed amount of payment for those services are Mr. Esparza and the Valenzuelas. The parties who received the funds that determine the amount of Mr. Esparza's damages are the Valenzuelas. From these witnesses, the finder of fact will determine whether to believe Mr. Esparza or the Valenzuelas.
Esparza contends he is not seeking to recover any interest in the Property, only his percentage in the funds received for its sale. He argues that the owners of Urbanicasas and the trustee of the family trust have no relevant testimony to offer. Thus, according to Esparza, the trial of this cause will require only appellees and him; the presence of the Property, the trust, documents, or other witnesses in Mexico will work no detriment to his claim. As the trial judge stated during the hearing on the amended motion to dismiss, "I don't know that it's -- that it's as simple as that."
Esparza has said that the 2011 Agreement evidences his oral agreement, which would appear to make the contract and its origins relevant even if he makes no affirmative claim on it. More importantly, his bare-bones description of the case, quoted above, states that one element of his proof must be "whether he performed services," without any further explanation. His First Amended Petition contended that the "services" he promised to perform as the basis of the oral contract were "promoting the new company, connecting [appellees] with the right people, and providing the service of arranging all of the parts necessary to accomplish the subdivision and sale of the Property." It is possible that Esparza intends to go to trial with only his own testimony concerning the issues of: to whom-and how-he promoted appellees' company; with whom he connected appellees; and precisely what he did to "provi[de] the service of arranging all of the parts necessary to accomplish the subdivision and sale of the Property." These details would be significant in any event, but even more so when Esparza's pleadings indicate that for years he was unaware of the subdivision and sale of the portion of the Property at issue here.
But even if Esparza could present through his own testimony all the facts necessary to prove his claim, appellees are entitled to evidence that could establish their defenses. Esparza's pleading seeks a recovery of more than one million dollars. Appellees are entitled to call witnesses who could testify to the role Esparza played, or did not play, in the promotion, subdivision, and sale of the Property. And those witnesses are in Mexico.
At the fundamental level, Esparza relies on an oral contract that was made and performed-for his part-in Mexico. The Property that he promoted and all the "parts" he arranged so that it could be subdivided and sold, are in Mexico. It appears that the Property must have been sold by the family trust; its trustee and its records are in Mexico. It may also be that the proceeds-if any-of the sale are in Mexico.We conclude the trial court did not abuse its discretion when it found that appellees would have no practical way to secure the testimony or documents of these witnesses for use in this lawsuit in Texas.
As the trial court raised with Esparza, because his agreement was for a percentage rather than a flat fee, "you are going to have to prove that underlying contract was performed and they actually received some money on that contract."
The central focus of the forum non conveniens inquiry is convenience. Quixtar, 315 S.W.3d at 33. Once a trial court determines that an available and adequate forum exists, it is charged with considering the private and public issues first identified by the United States Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947). The trial court here made findings of fact and conclusions of law that addressed those factors and determined that they "weigh in favor of the alternative forum of the courts of San Luis Potosi, Mexico." The Texas Supreme Court has directed that it is not our role to re-weigh those factors, only to determine whether the trial court's balancing of the factors was reasonable and was supported by evidence. Quixtar, 315 S.W.3d at 35. Where it meets that standard, the court's decision deserves substantial deference. Rasul, 2018 WL 6599018, at *5. Esparza specifically challenges only the first private Gulf States factor, the relative ease of access to sources of proof. We conclude the trial court's findings on this factor are supported by evidence and are reasonable. We discern no abuse of discretion in the trial court's analysis of access to sources of proof in this case. We overrule Esparza's third issue.
Conclusion
We affirm the trial court's Order.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees Angel Alfonso Valenzuela Jurado, Zoraida Ma. de las Mercedes Valenzuela Jurado, Francisco Ruben Valenzuela Jurado, Moises Benedicto Valenzuela Jurado, David Henry Tudor Valenzuela, and Howard Joseph Tudor Valenzuela recover their costs of this appeal from appellant Salvador Esparza del Pozo.