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Click here for the full text of this decision FACTS:Jose Angel Hernandez Gomez was driving a Ford Explorer with Firestone ATX tires in Mexico, when he crashed the vehicle and died. Claiming that the crash was caused by the tires’ failure, Gomez’ family in Mexico sued several parties, including Bridgestone/Firestone North American Tire, Ford Motor Co., Houston Auto Auction Inc. and Progresso Motors, for wrongful death and personal injury. The family sought exemplary damages against HAA, predicated on malice. The trial court granted HAA’s motion for summary judgment. The trial court also dismissed the claims against Bridgestone, Ford and Progresso Motors on the ground of forum non conveniens. HOLDING:Affirmed. The court first addresses the family’s argument that summary judgment for HAA was improper on the family’s claim of malice. The court points out that summary judgment was granted as to all the theories of liability alleged against HAA. Once summary judgment on those claims was entered, there were no existing claims to which the exemplary damages claim could attach. Summary judgment on the exemplary damages claim based on malice was thus proper. The court next turns to the dismissal on forum non conveniens grounds. The court notes that the version of Texas Civil Practice & Remedies Code �71.051 applicable at the time contained a distinction between plaintiffs who are not legal residents of the United States and those who are. For nonresidents, �71.051(a) says a court can decline to exercise jurisdiction if, in the interest of justice, it finds the underlying claim would be more properly heard outside the states. For legal residents of the United States, �71.051(b) says that dismissal on forum non conveniens grounds is proper only after a weighing of six factors. The court observes that the Fort Worth Court of Appeals has held that those six factors are instructive, but not controlling, when assessing whether a trial court abused its discretion in dismissing a claim under (a). On the other hand, the San Antonio Court of Appeals has rejected such an approach, because it conflates the two subsections. The court agrees with the San Antonio Court of Appeals, finding that (a) neither incorporates nor requires the consideration of the factors in (b). “Instead, subsection (a) expressly requires the trial court to consider (1) the interest of justice and (2) whether a claim or action would be more properly heard in a forum outside this State in determining whether to dismiss a non-resident’s claim or action under the doctrine of forum non conveniens.” Applying the statutes to the case, then, the court determines that, because all of the plaintiffs were from Mexico, then the dismissal under �71.051(a) would be procedurally proper. Next, the court rejects the family’s argument that the motion to dismiss was heard less than 30 days before the trial setting. The court does not even address the merits of the issue, noting that if there was error, it was invited by the family when it failed to object to the allegedly improper hearing. The family argues that the trial court disregarded the common law when making its decision to dismiss, but the court rules that because the family’s suit was based on wrongful death and personal injury claims, both statutory claims, �71.051 applies, not the common law. Finally, the court addresses whether the dismissal under �71.051(a) was substantively proper. The standard, the court notes, is not merely whether it would be more convenient for one party or another, but whether, in the interests of justice, the action would be properly heard in a Mexican forum. The key is whether the alternative forum would give the plaintiffs a remedy for their loss, even if remedy were a lesser one than what is offered in a Texas court. “Although Mexico may not recognize a cause of action for strict products liability based on the facts of this case, appellants do not controvert evidence in the record that Mexican law provides a remedy for negligence and breach of warranty. [The family] pleaded three theories of recovery, including strict products liability, negligence, and breach of warranty, against [the defendants] based on the same set of facts. Therefore, assuming, without determining, that Mexican law recognizes claims for negligence and breach of warranty, it entitles [the family] to a remedy for their losses in the instant case. As a result, we conclude that the trial court, based on the facts of this case, could have reasonably found that, in the interest of justice, this case was more properly heard in a forum in Mexico.” OPINION:Rodriguez, J.; Valdez, C.J., Hinojosa and Rodriguez, JJ.

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