Gottwald v. De Cano

JUAN ALVAREZ GOTTWALD and AXIOM, S.A. DE C.V., Appellants, v. ROSA DELGADO DOMINGUEZ DE CANO,LUCIO MARIO CANO BARRAZA, MARIO SERGIO DELGADO DOMINGUEZ,BLANCA DELGADO DE URQUIDI, AND PATRICIA ALVARES OZUNA, Appellees.

No. 08-16-00044-CV

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

July 13, 2018

Appeal from the 171st District Court of El Paso County, Texas

(TC# 2013DCV4096)

OPINION

Appellants, Juan Alvarez Gottwald (Alvarez) and Axiom S.A. de C.V. (Axiom) (collectively Appellants), filed a civil suit in Texas against five Texas residents (collectively Appellees) alleging that Appellees caused emotional distress and damages, and were unjustly enriched, after filing a criminal complaint, and/or giving testimony in support of charges, in a Mexican proceeding over a contract dispute involving the purchase of undeveloped real property in Juarez, Mexico. Appellants are non-residents of Texas. Appellees filed and the trial court granted a motion to dismiss based on forum non conveniens. Appellants challenge the trial court's dismissal order. We reverse and remand.

BACKGROUND

The Parties

Alvarez, the sole director of co-appellant Axiom, resides in Doña Ana County, New Mexico. Axiom is a Mexican corporation doing business in Mexico.

With one exception, Appellees are all Delgado family members—three siblings and one in-law. Among them, the siblings include Rosa Delgado Dominguez de Cano (Rosa Cano), Mario Sergio Delgado Dominguez (Mario Delgado), and Blanca Delgado de Urquidi (Blanca Urquidi). Lucio Mario Cano Barraza (Lucio Cano), is the in-law and he is married to Rosa. Sibling Mario Delgado and married couple Rosa Cano and Lucio Cano, are all citizens of Mexico who reside in Texas. Appellee Blanca Urquidi is a citizen of the United States and resides in Texas.

Appellee Patricia Alvarez Ozuna (Patricia Ozuna) is the unrelated fifth person named in the suit who facilitated the initial contact between Alvarez and certain members of the Delgado family. Patricia Ozuna has dual citizenship with Mexico and the United States and resides in Texas.

Contract to Purchase Land

As alleged in Appellants' third amended original petition, on or about July 23, 2008, Axiom entered into a contract to purchase undeveloped land in Ciudad Juarez, Mexico, from four members of the Delgado family: (1) Appellee Rosa Cano; (2) Appellee Mario Delgado; (3) Federico Delgado, who is now deceased and succeeded in interest by Monica Idaly Delgado Nevarez; and (4) Jesus Delgado, a defendant named in the underlying suit who has not yet been served with process.

The purchase price of the property was structured to include both a fixed and a contingent payment: first, Axiom agreed it would initially pay $1,059,394.08; and second, if, within two years, the Delgados obtained government authorization to establish water and sewage utilities for the property, Axiom would then be required to pay an additional $2,188,759.68. There is no dispute the contract was executed in Mexico, and by its terms, Mexican law governed the transaction, and no part of it required performance in the United States. Appellee Ozuna acted as an intermediary who relayed messages between Alvarez, as director of Axiom, and the Delgados regarding Axiom's purchase of the Delgado property. Appellee Blanca Urquidi did not participate as a named party to the contract.

Although Axiom made the initial payment as promised, a dispute arose between the parties over the authorization to establish utilities for the property and the resulting payment owed in satisfaction of the contingency. Although the Delgados provided a letter from a government official which purportedly authorized the establishment of utilities, Axiom asserted the letter fell short of authorizing permits acceptable for commercial development as required by their agreement. Axiom asserted it would extend the time for performance of the contingency but it would not accept the authorization as tendered. In opposition, the Delgados contended that they had fully performed their duties under the contract, and Axiom owed them the additional payment of $2,188,759.68.

Under Mexican law, fraudulent insolvency to the detriment of creditors is a crime punishable by a sentence of imprisonment up to four years and a fine. On or about May of 2011, the Delgados complained to authorities and criminal charges were filed against Alvarez in a Mexican proceeding alleging that Alvarez had rendered Axiom insolvent to avoid paying its debt.The Delgados asserted that Alvarez had transferred assets from Axiom to another Mexican company he controlled thereby causing Axiom to become insolvent. Based on the criminal complaint, on August 23, 2013, Alvarez was arrested and imprisoned in the Cereso Prison of Juarez, Mexico. A Mexican court later conducted a preliminary hearing in which several members of the Delgado family and others testified. The Mexican court found sufficient evidence to support a preliminary investigation and ordered that Alvarez remain in custody until November 28, 2013. Rather than await trial or appeal the decision, after eleven days of confinement, Alvarez paid the Delgado family the full amount of the contingency payment and all criminal charges were dismissed as provided by Mexican law.

Alvarez and Axiom subsequently sued Rosa Cano, Lucio Cano, Mario Delgado, Blanca Urquidi, Patricia Ozuna, Monica Idaly Delgado Nevarez, and Jesus Ignacio Delgado Dominguez in the 171st District Court in El Paso County, alleging they caused Alvarez to be imprisoned in Mexico by filing the criminal complaint against him.¹ Appellants' causes of action were for abuse of process, conspiracy to abuse process, intentional infliction of emotional distress, conspiracy to commit intentional infliction of emotional distress, and money had and received. As damages, Appellants sought restitution for the money he paid to the Delgados to obtain the dismissal of the Mexican criminal charge, for emotional distress, and for exemplary damages for "substantial injury and harm." On its own, Axiom also filed suit in a Mexican court against Rosa Cano, Mario Delgado, Monica Nevarez, and Jesus Delgado, alleging unjust enrichment and sought restitution of the same funds at issue in the lawsuit filed in El Paso County.

In addition to a plea to the jurisdiction, Appellees filed a motion to dismiss the El PasoCounty lawsuit on the ground of forum non conveniens. Appellees asserted that the relevant witnesses and physical evidence were in Mexico and controlling legal questions needed to be decided under Mexican law. The trial court granted the motion and issued findings of fact and conclusions of law in support of its order. The trial court concluded that (1) a court in Mexico is an alternative forum; (2) that the dispute between the parties was factually and legally a Mexican dispute such that the facts arose in Mexico and Mexican law would be necessarily involved in resolving the dispute; (3) that both the private and public interests weighed heavily in favor of the lawsuit being litigated in a Mexican court; and (4) that a court in Mexico provided the more appropriate court to resolve the dispute. Appellants appealed the trial court's grant of Appellees' motion to dismiss.

DISCUSSION

In three issues, Appellants argue the trial court abused its discretion in granting Appellees' motion to dismiss on the grounds of forum non conveniens. Appellants' first two issues challenge the sufficiency of the evidence in support of the dismissal of the case, asserting that (1) no alternative forum was shown to be "available;" and (2) no evidence exists to support dismissal. In their third issue, Appellants contend the evidence established that El Paso County not only maintains jurisdiction over all parties but also provides a convenient forum that works no injustice to Appellees-movants.

Standard of Review

The determination of whether to grant or deny a motion to dismiss based on the doctrine of forum non conveniens is committed to the sound discretion of the trial court. Quixtar Inc. v. Signature Management Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (citing Piper Aircraft Co. v.Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). As such, reversing a trial court's dismissal under the doctrine of forum non conveniens is only proper when there has been a clear abuse of discretion. Id. (quoting Piper Aircraft Co., 454 U.S. at 257) (emphasis added). A trial court commits an abuse of discretion when it acts without reference to any guiding rules and principles, and when there is no evidence to support its ruling. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)); Tullis v. Georgia-Pacific Corp., 45 S.W.3d 118, 132-33 (Tex. App.—Fort Worth 2000, no pet.) (citing Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989)). In assessing whether a trial court abused its discretion, relevant factors include the legal and factual sufficiency of evidence supporting the court's findings. Tullis, 45 S.W.3d at 121.

In determining a legal sufficiency issue, we consider all evidence in the light most favorable to the party in whose favor the court ruled, and indulge every reasonable inference from the evidence in that party's favor. Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). A legal sufficiency issue may only be sustained when the record discloses (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). There is some evidence to prove the existence of a vital fact when the proof supplied furnishes a reasonable basis for reasonable minds to reach differing...