in Re Williams Gas Processing Company, N/K/A Williams Field Services Company, LLC

Petition for Writ of Mandamus Denied and Memorandum Opinion filed January 31, 2008

Petition for Writ of Mandamus Denied and Memorandum Opinion filed January 31, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-01026-CV

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IN RE WILLIAMS GAS PROCESSING COMPANY, N/K/A WILLIAMS FIELD SERVICES COMPANY, LLC, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On December 6, 2007, relator, Williams Gas Processing Company, n/k/a Williams Field Services Company, LLC, filed a petition for writ of mandamus in this court.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition, Williams requests that we compel the Honorable David J. Bernal, presiding judge of the 281st District Court, Harris County, to vacate his November 7, 2007 order denying Williams= motion to dismiss for forum non conveniens, to decline jurisdiction or, alternatively, to stay action. 

Williams owns and operates a gas processing plant in Opal, Wyoming.  Real party in interest, Jonah Gas Gathering Company, owns and operates a gas gathering system located in Wyoming.  Williams and Jonah entered into an Interconnect and Operation Balancing Agreement under which Jonah was to deliver natural gas to Williams= Wyoming gas processing plant.  On October 21, 2005, Williams notified Jonah that the gas it had delivered to Williams= Wyoming plant contained contaminants in breach of their agreement, damaging the plant=s equipment, and demanded that Jonah cure the breach.^[1] 

On November 29, 2006, Williams informed Jonah that it was invoking the agreement=s alternative dispute resolution provisions, and provided its statement of position.  Subsequently, Jonah responded, and senior executives from both parties met, but were unable to settle the dispute.  Jonah then requested mediation.  When Williams did not respond to its request for mediation, Jonah filed a declaratory judgment action in Harris County on July 24, 2007.  On August 24, 2007, Williams filed suit against Jonah in Wyoming, alleging claims for breach of contract and negligence, and seeking actual and punitive damages. 

On August 24, 2007, Williams filed a motion to dismiss for forum non conveniens, to decline jurisdiction or, alternatively, to stay the Texas action.  On November 7, 2007, respondent denied Williams= motion. 

In order to obtain mandamus relief, the relator must show that the trial court clearly abused its discretion and that it has no adequate remedy by appeal.  In re Sw. Bell Tele. Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding).  Williams asserts that respondent abused his discretion by failing to apply the factors set forth by the United States Supreme Court in Gulf Oil Corporation v. Gilbert, 330 U.S. 501 (1947) (the AGilbert factors@). 

The doctrine of forum non conveniens permits the courts to exercise equitable power to prevent the imposition of an inconvenient jurisdiction on a litigant, upon the court=s determination that the interests of the litigants and witnesses warrant a different forum.  Yoroshii Invs. (Mauritius) Pte. Ltd. v. BP Int=l Ltd., 179 S.W.3d 639, 643 (Tex. App.CEl Paso 2005, pet. denied).  The Gilbert court set forth private and public factors to consider in determining whether the plaintiff=s choice of forum should be disturbed.  It is the defendant=s burden to prove that the balance of factors strongly favors the defendant=s choice of forum.  Adams v. ESC Med. Sys., Inc., 161 S.W.3d 49, 50 (Tex. App.CHouston [14th Dist.] 2004, no pet.).

The court should consider the following private interests of the parties:  (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for attendance of unwilling witnesses; (3) the enforceability of a judgment if one is obtained; and (4) all other practical problems that make trial of a case easy, expeditious, and inexpensive.  Gilbert, 330 U.S. at 508.  The court should also consider the following public interests:  (1) administrative difficulties caused by litigation not handled at its origin; (2) jury duty imposed upon people of a community that has no relation to the litigation; (3) local interest in having localized controversies decided at home; and (4) appropriateness of having a trial in a diversity case in a forum that is familiar with the state law that must govern the case, rather than having a court in another forum untangle problems in conflict of law and in law that is foreign.  Id. at 508B09. 

No abuse of discretion appears on this record because, assuming that the Gilbert factors are applicable, Williams has not established the balance of factors strongly favors Williams= choice of forum in Wyoming.  Williams submitted affidavits stating that  evidence and fact witnesses are located in Wyoming.  Williams= proof does not address, whether those witnesses will testify voluntarily in Texas; whether it would be burdensome to or inconvenient for any witness to travel to Texas; the cost of obtaining those witnesses= presence in Texas; any difficulty in accessing sources of proof; or why a physical viewing of the plant is necessary while other methods, such as video, are not sufficient.  See Seung Ok Lee v. Ki Pong Na, 198 S.W.3d 492, 495 (Tex. App.CDallas 2006, no pet.) (there must be some evidence in the record that will allow the trial court to balance the forum non conveniens factors and determine whether they weigh strongly in favor of trying the case in another forum). 

Relying primarily on Section 71.051 of the Texas Civil Practice and Remedies Code, Jonah asserts that its declaratory action cannot be dismissed for forum non conveniens because it is a Texas resident.  Tex. Civ. Prac. & Rem. Code Ann. ' 71.051(e) (Vernon Supp. 2007). . Under section 71.051(e), A[t]he court may not stay or dismiss a plaintiff=s claim under Subsection (b) if the plaintiff is a legal resident of this state.@  Id. ' 71.051(e).   Section 71.051's applicability is limited to suits for wrongful death and personal injury.  This is not such a suit.  Therefore, the statute does not apply here.  Direct Color Servs., Inc. v. Eastman Kodak Co., 929 S.W.2d 558, 567 n.2 (Tex. App.CTyler 1996, writ denied).  We need not decide whether dismissal of a Texas resident=s claim for forum non conveniens is permissible in circumstances that are not covered by Section 71.051.  Even assuming for argument=s sake that dismissal is available and that the Gilbert factors apply here, the trial court acted within its discretion based on the nature of this record.

Because Williams has not provided sufficient evidence to prove the balance of the Gilbert factors weigh heavily in favor of trying the case in Wyoming, respondent did not abuse his discretion in denying Williams= motion to dismiss for forum non conveniens, to decline jurisdiction, or to stay.  Therefore, Williams has not established its entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny Williams= petition for writ of mandamus.  We further deny Williams= motion for admission of counsel as moot. 

PER CURIAM

Petition Denied and Memorandum Opinion filed January 31, 2008.

Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.

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            ^[1]  Prior to October 21, 2005, Williams had informed Jonah that the gas it had delivered to the Wyoming plant contained contaminants, and requested that Jonah correct the problem.