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In re Transcontinental Gas Pipeline Company, LLC

Court of Appeals of Texas, Fourteenth District

December 14, 2017

IN RE TRANSCONTINENTAL GAS PIPELINE COMPANY, LLC, THE WILLIAMS COMPANIES, INC., WILLIAMS PARTNERS L.P., AND BLACK MARLIN PIPELINE LLC; FURMANITE CORPORATION, FURMANITE AMERICA, INC., AND FURMANITE WORLDWIDE, INC.; DANOS & CUROLE MARINE CONTRACTORS, LLC; ES&H, INC., AND ENVIRONMENTAL SAFETY & HEALTH CONSULTING SERVICES, INC., Relators

         ORIGINAL PROCEEDING WRIT OF MANDAMUS 127th District Court Harris County, Texas Trial Court Cause No. 2015-62416

          Panel consists of Justices Christopher, Brown, and Wise.

          OPINION

          Tracy Christopher Justice

         On Thursday, June 08, 2017, relators "the Williams Defendants" (Transcontinental Gas Pipeline Company, LLC or "Transco, " The Williams Companies, Inc., and Williams Partners L.P.), "the Furmanite Defendants" (Furmanite Corporation, Furmanite America, Inc., and Furmanite Worldwide, Inc.), "the ES&H Defendants" (ES&H, Inc. and Environmental Safety & Health Consulting Services, Inc.), "Danos" (Danos & Curole Marine Contractors, LLC), and Black Marlin Pipeline LLC ("Black Marlin") filed a petition for writ of mandamus in this Court. See Tex. R. App. P. 52; Tex. Gov't Code Ann. § 22.221 (West Supp. 2017). In the petition, the relators ask this Court to compel the Honorable R. K. Sandill, presiding judge of the 127th District Court of Harris County, to vacate its ruling partially denying their respective motions to dismiss for forum non conveniens and to instead grant the motions in their entirety.

         We conclude that the trial court did not clearly abuse its discretion in denying the motions to dismiss as they pertain to the claims of real party in interest Paula Rhodes. A trial court is prohibited from dismissing, on the ground of forum non conveniens, the claims of a Texas resident, and the evidence supports the trial court's implied finding that Rhodes continuously resided in Texas at all relevant times, despite a temporary absence from the state. As to the remaining real parties in interest, we conclude that the evidence concerning the factors that must be considered when evaluating a forum non conveniens motion weigh overwhelming in favor of dismissal, and thus, the trial court clearly abused its discretion in denying the motions to dismiss as to those parties. We accordingly deny in part, and conditionally grant in part, the relators' petition for writ of mandamus.

         I. Background

         This is a personal-injury case arising from an explosion and fire that occurred on October 8, 2015, at Compressor Station 62 in Gibson, Louisiana. The Station 62 facility receives unprocessed natural gas via pipeline from numerous offshore producers in the Gulf of Mexico. The incident occurred during a scheduled maintenance and clean-out of the slug catcher, which separates the incoming gas and liquids on site.

         During the maintenance project, the facility was shut down and the slug catcher was isolated from hazardous vapors so that sludge accumulating inside the 42-inch diameter "liquids distribution header" could be removed. In preparation for the work, Transco employees prepared a Gas Handling Plan to isolate the structure. The Gas Handling Plan called for depressurization and draining of the gas and liquids in the slug catcher, followed by installation of air movers to purge it with fresh air. The Gas Handling Plan was based on the plan used during the last scheduled maintenance in 2010 and had been modified to address a change in the work scope that included replacement of a three-inch water dump line flange on the west end of the header. The work plan for the repairs themselves was a new plan, and it called for the use of inflatable bladders to isolate the header during "hot work" around the flange faces and the use of a plumbers plug at the site of the flange replacement. Subcontractor Danos was to assist with the cleaning and flange replacement, and it had further subcontracted some of the work, such as installing the bladders, with one of the Furmanite Defendants.

         On the night of October 7, 2015, Transco operations supervisor John Turchin emailed personnel at Williams, Danos, and ES&H about the status of the project. He stated that the south header had been cleaned and that air bladders had been installed to the work on the flange needing repair. He added that a three-inch flange on the east end of the header was inspected and found to have excessive corrosion, and that the flange would be replaced the next day.

         When a Danos welder struck an arc at the site of the three-inch flange on the east side of the header the next morning, vapors inside the header ignited. The explosion ejected the bladders, which struck and killed Danos employees Samuel Brinlee and Casey Ordoyne. Furmanite employee Jason Phillippe died from injuries sustained in the ensuing fire. Danos employees Wayne Plaisance Jr. and Walter Kidder survived their injuries.

         The incident was investigated by the U.S. Department of Transportation's Pipelines and Hazardous Materials Safety Administration ("PHMSA"), among others. Transco, the owner and operator of the facility, performed its own investigation described in its "Root Cause Analysis." Both PHMSA and Transco concluded that the reliance on an earlier Gas Handling Plan and the placement of air movers and inflatable bladders had resulted in an insufficient purge of hazardous vapors from the work areas.

         A dozen wrongful-death and personal-injury suits were filed in Terrebonne Parish, Louisiana, where the incident occurred. Those suits were consolidated for discovery and trial. This suit, however, was filed in Harris County, Texas, by the following plaintiffs:[1]

1. Louisiana resident Wayne Plaisance Jr., who seeks damages for his personal injuries;
2. Louisiana resident Walter Kidder, who seeks damages for his personal injuries;
3. Louisiana resident Judy Ordoyne, who seeks damages for the death of her son, Louisiana resident Casey Ordoyne;
4. North Carolina residents Kristine Phillippe, Nash Phillippe, Knox Phillippe, Memphis Phillippe, Susan White, and Albert White, and Illinois resident Michael Phillippe, all of whom seek damages for the death of Illinois resident Jason Phillippe;
5. Louisiana resident Richard Brinlee, who seeks damages for the death of his son, Louisiana resident Samuel Brinlee;
6. Samuel Brinlee's mother Paula Rhodes, whose residency is disputed, and who seeks damages for his death; and
7. Samuel Brinlee's daughter, Illinois resident Alisa Evans, who seeks damages for her father's death.

         The defendants moved to dismiss the case pursuant to the Texas forum non conveniens statute. See Tex. Civ. Prac. & Rem. Code Ann. § 71.051 (West Supp. 2017). After initially granting their respective motions, the trial court emailed questions to the parties about the residency of plaintiff Paula Rhodes. Before the parties responded, the trial court vacated the order granting the motions to dismiss and set a "status conference." At the status conference, the parties presented further argument for and against the motions to dismiss. The trial court then denied the motions to dismiss as to all plaintiffs except Alisa Evans.[2] The relators, defendants, below, ask us to compel the trial court to grant their motions as to the remaining plaintiffs. We stayed further proceedings pending our decision on the merits.

         II. Issues Presented

         The relators argue that the trial court abused its discretion in changing its original order granting their motion to dismiss for forum non conveniens, because (1) Rhodes's move to Texas after the forum non conveniens motion was filed is not grounds for maintaining any plaintiff's action in Texas, (2) the evidence relevant to the factors to be considered in deciding the motion weighs overwhelmingly in favor of the dismissal of each plaintiff's action, and (3) the trial court changed its initial ruling without new arguments or evidence.[3]

         III. Standard of Review

         To obtain mandamus relief, a relator generally must demonstrate that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal. See In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). Under this standard of review, we defer to the trial court's factual determinations that are supported by evidence, but we review the trial court's legal determinations de novo. See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. See In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). If the trial court abuses its discretion in denying a forum non conveniens motion, the movant has no adequate remedy by appeal. See In re Gen. Elec. Co., 271 S.W.3d 681, 685 (Tex. 2008) (orig. proceeding); In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 679 (Tex. 2007) (orig. proceeding) (plurality op.).

         In personal-injury and wrongful-death actions, forum non conveniens motions are governed by Texas Civil Practice and Remedies Code section 71.051. Under the statute, the level of deference afforded to a plaintiff's choice of forum depends upon whether the plaintiff is a Texas resident. Claims of a Texas resident, or of a derivative claimant of a Texas resident, may not be dismissed on the ground of forum non conveniens. See Tex. Civ. Prac. & Rem. Code Ann. § 71.051(e). If the plaintiff is not a Texas resident, or a derivative claimant of a Texas resident, then the court applies a six-factor test in determining whether to grant a motion to stay or dismiss the claim or action. Id. § 71.051(b). In applying the forum non conveniens factors, "[a] trial court has no discretion in determining what the law is or in applying the law to the particular facts." In re Mantle Oil & Gas, LLC, 426 S.W.3d 182, 187 (Tex. App.-Houston [1st Dist.] 2012, orig. proceeding). Where, as here, no findings of fact and conclusions of law were issued or requested as to the portion of the trial court's ruling partially denying the motion, we imply all factual findings in support of the trial court's ruling if such findings are supported by the record.[4]

         IV. Claims of Purported Texas Resident Paula Rhodes

         Paula Rhodes asserted in her live pleading that she is a Texas resident, and she asserted claims arising from the death of her son, Louisiana resident Samuel Brinlee. According to the relators, the trial court clearly abused its discretion in denying their motion to dismiss her claims because (a) Rhodes is a derivative claimant, and thus, it is her son's residency that matters rather than her own; and (b) she was not a Texas resident at any time relevant to the forum non conveniens analysis.

         A. The Trial Court Properly Considered Rhodes's Residency

         According to the relators, the trial court could consider only Rhodes's deceased son's residency when determining whether the statute prohibited the trial court from dismissing her claims on the ground of forum non conveniens. This argument concerns the proper construction of Texas Civil Practice and Remedies Code section 71.051. The construction of a statute is a question of law, which we review de novo. See TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016). Our goal in construing a statute is to give effect to the legislature's intent as expressed in the statute's language. See id. A statute's clear and unambiguous language is determinative of the legislature's intent. See id. If the statute defines a term, then we must construe the statute using the definition supplied by the legislature and take into account any technical or particular meaning the words have acquired. See Harris Cty. Appraisal Dist. v. Tex. Workforce Comm'n, 519 S.W.3d 113, 128 (Tex. 2017). If the statue does not supply a term's definition, then we must "determine a term's plain or ordinary meaning, " unless a different meaning is apparent from the statute's language. Id. at 128-29 (quoting Wal-Mart Stores, Inc. v. Forte, 497 S.W.3d 460, 471 (Tex. 2016)).

         Under the forum non conveniens statute, "[t]he court may not stay or dismiss a plaintiff's claim . . . if the plaintiff is a legal resident of this state or a derivative claimant of a legal resident of this state." Tex. Civ. Prac. & Rem. Code Ann. § 71.051(e) (emphasis added). Because Paula Rhodes seeks recovery of damages for the wrongful death of her son, she is both a "plaintiff" and a "derivative claimant" as those terms are used in the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 71.051(h)(2) (defining "Plaintiff" as "a party seeking recovery of damages for personal injury or wrongful death"); id. § 71.051(h)(1) (defining "Derivative claimant" as "a person whose damages were caused by personal injury to or the wrongful death of another").

         In stating the grounds on which a trial court is prohibited from dismissing a plaintiff's claim for forum non conveniens, the statute uses the disjunctive "or, " which means that the terms that precede and follow it are alternatives. See City of Dallas v. TCI W. End, Inc., 463 S.W.3d 53, 58 (Tex. 2015) (per curiam) ("The statute's use of 'or, ' a disjunctive, identifies two alternative bases . . . ."). Thus, the trial court is barred from dismissing a plaintiff's claims if the plaintiff is either (1) a legal resident of this state, or (2) a derivative claimant of a legal resident of this state. Under the statute's unambiguous language, the trial court could not dismiss Rhodes's claims if either she or her son was a legal resident of this state. The trial court therefore did not clearly abuse its discretion in considering Rhodes's residency.

         B. The Trial Court's Determination of Rhodes's Residency is Supported by the Evidence.

         The relators next contend that the trial court abused its discretion in determining that Rhodes is a Texas resident. The relators rely on evidence that Rhodes was living in Illinois when the incident occurred, when she joined the suit, and even when the relators' motions to dismiss were filed, but moved to Texas before the trial court heard and ruled on the motions. The relators argue that the trial court erroneously determined Rhodes's residency as of the time the trial court ruled on the motion, and that the trial court instead should have relied on Rhodes's residency as of the date the incident occurred or the date she joined the lawsuit.

         We need not determine which date should be used in determining a plaintiff's residency because there is evidence that Rhodes was continuously a Texas resident from at least July 2012-more than three years before the incident. We arrive at this conclusion based on the meaning of the term "legal resident" in the forum non conveniens statute.

         The statute prohibits dismissal of a plaintiff's claims on forum non conveniens grounds if the plaintiff is a "legal resident" of Texas. When the forum non conveniens statute was first enacted in 1993, it defined "legal resident" as "a person who intends the specified political subdivision to be his permanent residence and who intends to return to the specified political subdivision despite temporary residence elsewhere or despite temporary absences, without regard to the person's country of citizenship or national origin." Act of Feb. 23, 1993, 73d Leg., R.S., ch. 4, § 1, sec. 71.051(j)(1), 1993 Tex. Gen. Laws 10, 12. The definition of "legal resident" was deleted from the statute less than four months before the incident at Station 62. See Act of May 22, 2015, 84th Leg., R.S., ch. 537, § 1, sec. 71.051(h)(1), 2015 Tex. Gen. Laws 1918, 1918.

         Because the statute no longer defines "legal resident, " "the common, ordinary meaning of the term applies unless a contrary meaning is apparent from the statute's language or the common meaning would lead to absurd or nonsensical results." Harris Cty. Appraisal Dist., 519 S.W.3d at 121-22 (citing Tex. Gov't Code Ann. § 311.011(a) (West 2013) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage.")). When ascertaining the meaning of a statute's undefined terms, "we typically look first to their dictionary definitions and then consider the term's usage in other statutes, court decisions, and similar authorities." Id. at 129 (quoting Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 35 (Tex. 2017)).

         Black's Law Dictionary defines "legal" as "[c]onforming to the law; according to law; required or permitted by law; not forbidden or discountenanced by law; good and effectual in law; of or pertaining to the law; lawful." Legal, Black's Law Dictionary (6th ed. 1990). The New Oxford American Dictionary similarly defines "legal" as "permitted by law." New Oxford American Dictionary 997 (Angus Stevenson & Christine Lindberg eds., 3d ed. 2010).

Black's Law Dictionary defines "resident" in part as
Any person who occupies a dwelling within the State, has a present intent to remain within the State for a period of time, and manifests the genuineness of that intent by establishing an ongoing physical presence within the State together with indicia that his presence within the State is something other than merely transitory in nature.

Resident, Black's Law Dictionary. Here, too, this legal definition parallels the common meaning of the word, for the New Oxford American Dictionary similarly defines "resident" as "a person who lives somewhere permanently or on a long-term basis." New Oxford American Dictionary 1485.

         The word "resident" also can be used to refer to a person whose stay is temporary. See Brown v. Boulden, 18 Tex. 431, 433 (1857) ("A residence is generally transient in its nature."). Black's Law Dictionary accordingly includes the following in its definition of "resident": "The word 'resident' when used as a noun, means a dweller, habitant or occupant; one who resides or dwells in a place for a period of more or less, duration; it signifies one having a residence, or one who resides and abides." Resident, Black's Law Dictionary (emphasis added).

         Because "resident" may refer to a person having a lasting or a temporary residence, a person can have more than one residence. See Snyder v. Pitts, 150 Tex. 407, 413, 241 S.W.2d 136, 139 (1951). A person "may well live temporarily in one place while maintaining his residence at another." Malnar v. Mechell, 91 S.W.3d 924, 928-29 (Tex. App.-Amarillo 2002, no pet.) (citing Owens Corning v. Carter, 997 S.W.2d 560, 571 (Tex. 1999)).

         Whether Rhodes became an Illinois resident during her stay there or whether she instead continued to be a Texas resident who was only temporarily absent from the state is "a question of intent to be proved by declarations and acts." Snyder, 150 Tex. at 416, 241 S.W.2d at 141; see also Malnar, 91 S.W.3d at 928.

         Rhodes produced evidence sufficient for the trial court to reasonably find that she has been a legal resident of Texas since 2012 and was only temporarily absent from the state for an eleven-month period. She testified by affidavit that she moved into her daughter's home in Humble, Texas in July 2012. Rhodes stated that she traveled annually to Illinois to visit her mother, and that she noticed a decline in her mother's health in 2014. Rhodes traveled to Illinois in April 2015 to care for her mother. According to Rhodes, "My ...


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