Edinburg SRGV, LLC v. Rialto Capital Advisors, LLC

NUMBER 13-24-00291-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

EDINBURG SRGV, LLC, Appellant,

v.

RIALTO CAPITAL ADVISORS,
LLC, Appellee.

ON APPEAL FROM THE 476TH DISTRICT COURT
OF HIDALGO COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Silva, Peña, and Cron
Memorandum Opinion by Justice Silva

Appellant Edinburg SRGV, LLC (SRGV) appeals the trial court’s order granting

appellee Rialto Capital Advisors, LLC’s (Rialto) motion to dismiss under the doctrine of

forum non conveniens. In five issues, which we reorganize and renumber as two, SRGV

argues the trial court abused its discretion when (1) it granted Rialto’s motion to dismiss;
and (2) dismissed SRGV’s case with prejudice. We affirm, as modified.

I. BACKGROUND

On September 25, 2019, SRGV filed its original petition against Rialto in the 275th

District Court of Hidalgo County, Texas. In its petition, SRGV identified itself as “a limited

liability company, organized under the law of Delaware, whose principal place of business

is Edinburg, Hidalgo County, Texas.” SRGV also pleaded that its “sole member is The

Shoppes at Rio Grande Valley, L.P. [(The Shoppes)], a Texas limited partnership,” and

whose partners “are First Hartford Realty Co., a Delaware corporation, and First Hartford

Rio Grande Valley, Inc., a Texas corporation.” SRGV further identified Rialto as “a

Delaware limited liability company” and pleaded that

Hidalgo County is a county of proper venue because [SRGV’s] cause of
action or a part thereof accrued in Hidalgo County. Furthermore, the
contractual obligations in question were, in whole or in part, to be performed
in Hidalgo County. In addition, the land securing the underlying transaction
is located in Hidalgo County, Texas.

SRGV further pleaded that it had entered into a loan agreement with Goldman

Sachs Mortgage Company (Goldman) for a $32,500,000 loan on September 7, 2016. The

loan was subsequently assigned to Wells Fargo Bank, National Association as trustee;

Northmarq Capital, LLC (Northmarq) and Rialto acted as servicers of the loan. 1 A dispute

arose between SRGV and Rialto over a provision of the loan agreement “concerning the

application of monies previously advanced by [SRGV].” The loan agreement contained

the following provision:

Servicer. Lender may delegate any and all rights and obligations of Lender
hereunder and under the other Loan Documents to the Servicer upon notice

1 Goldman, Wells Fargo Bank, and Northmarq are not parties to this appeal.

2
by Lender to Borrower, whereupon any notice or consent from the Servicer
to Borrower, and any action by Servicer on Lender’s behalf, shall have the
same force and effect as if Servicer were Lender.

SRGV alleged that this provision was “never satisfied” because SRGV did not receive

notice of Rialto’s appointment as a servicer from the lender, and as a result, “all of

[Rialto’s] conduct was ultra vires.”

According to SRGV, a lawsuit was filed but “[SRGV] and all the parties to the suit,

including [Rialto], eventually voluntarily dismissed that ‘[a]ction.’” SRGV further pleaded

that all the parties, including Rialto, “entered into a [s]tipulation in which the parties

agree[d] to discontinue the [lawsuit],” and that “[p]ursuant to the terms of the [s]tipulation,

the [lawsuit] was discontinued ‘without costs or attorney’s fees to any party as against

another.’” According to SRGV, Rialto “claimed that it was a beneficiary of [an] indemnity

provision [of the loan agreement]” and subsequently demanded it “be paid $205,051.00

[in] attorney’s fees ‘purportedly incurred in the [lawsuit].’” According to SRGV,

[I]f [SRGV] would have failed to pay the $205,051.00 in attorney’s fees
demanded, [Rialto] would be faced with the threat of foreclosure on
[SRGV’s] shopping center. If that came to pass, the jobs of hundreds of
Hidalgo County residents would be affected. Furthermore, it could have
resulted in possible bankruptcy proceedings. To avoid that possibility,
[SRGV] paid the attorney’s fees demanded under economic duress and
stating that such payment was without prejudice with a reservation of all of
its rights under the Loan agreement.

SRGV requested a declaratory judgment, specifically declaring that “[Rialto’s]

conduct was ultra vires, and therefore of no effect”; the “discontinuance of the [lawsuit]

and the [s]tipulation discontinuing [that] prior lawsuit bars the recovery of attorney’s fees

by [Rialto];” “the requested indemnification is improper under the Loan agreement”; “the

costs and expenses charged by [Rialto] as its purported attorney’s fees and costs were

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unreasonable and therefore, not recoverable, as requested”; and “[SRGV] was never

liable for the fees and costs that it was demanded to pay.” SRGV further requested the

trial court order “those fees and costs paid by [SRGV] be returned by [Rialto] to [SRGV].”

SRGV pleaded “money had and received” in the alternative. Furthermore, SRGV sought

damages in the form of a judgment “for the amount improperly paid, $205,051.00,” pre-

judgment and post-judgment interest, reasonable attorney’s fees, and costs.

On November 27, 2019, Rialto filed its original answer generally denying the

allegations in SRGV’s petition and raising numerous affirmative defenses. On the same

day, Rialto filed its “Motion to Dismiss Under the Doctrine of Forum Non Conveniens,”

arguing that SRGV’s case should be dismissed based on the doctrine of forum non

conveniens in favor of New York. According to Rialto, SRGV’s case had “nothing to do

with Texas and everything to do with New York and a litigation [SRGV] filed and voluntarily

dismissed there.” It also argued that “[n]one of the operative events at issue in the instant

lawsuit occurred in Texas and Texas law is not at issue,” and that “the sole question

before the [trial c]ourt is whether New York law required [SRGV] to pay [Rialto’s]

attorneys’ fees, which were incurred as part of a New York litigation initiated in New York

by [SRGV] pursuant to a loan agreement governed by New York law.” According to Rialto,

New York was an alternative forum available to SRGV, and that the public and private

interest factors weighed in favor of dismissal. As part of its motion, Rialto attached an

affidavit by John P. Doherty, Esq., with attachments (each discussed below) consisting

of a copy of SRGV’s loan agreement and deed of trust; a copy of SRGV’s complaint filed

in the New York litigation; a copy of a stipulation filed by SRGV, Rialto, and the other

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defendants in the New York litigation; a copy of SRGV’s “Notice of Discontinuance” filed

in the New York litigation; and Rialto’s indemnification demand letter to SRGV.

In his affidavit, Doherty stated that he served as counsel for Rialto in the New York

litigation that “gave rise to the instant dispute.” Doherty stated that SRGV’s $32,500,000

loan was “secured by the mortgage of a shopping center known as The Shoppes”

pursuant to a loan agreement governed by New York law which contained a permissive

New York forum selection clause. According to Doherty, SRGV’s loan is held by a trust

that owns other commercial loans, and that Rialto acts as “special servicer” for SRGV’s

loan. Doherty stated that SRGV filed suit in New York state court alleging that Rialto

“wrongly refused to release money held as security for the Loan.” Doherty stated he

provided SRGV notice that it would be responsible for Rialto’s legal fees at the outset of

the New York litigation. The parties eventually agreed to mediate in New York with a New

York mediator. Two days after the mediation, SRGV agreed to voluntarily dismiss the

New York litigation. After the case was dismissed, Rialto billed SRGV for the attorney’s

fees incurred in the New York litigation, which SRGV contested. According to Doherty,

The sources of proof regarding the at-issue attorneys’ fees will come from,
among other things, the files of [Doherty’s] law firm, Alston & Bird, in New
York. Likewise, the supporting testimony and affidavits will come from
[Doherty] and the other attorneys and support staff that litigated the New
York [l]itigation, all of whom are in New York.

The New York courts have a process in place to determine whether legal
fees are reasonable. New York Supreme Court judges refer them to Special
Masters or Judicial Hearing Officers, whose primary job is to determine the
applicability and reasonableness of attorneys’ fees.

The loan agreement attached to Doherty’s affidavit was dated September 7, 2016,

and signed by SRGV as “BORROWER” and Goldman as “LENDER.” We note that SRGV

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identified itself in the loan agreement as “a Delaware limited liability company.” The loan

agreement contained the following provisions:

DEFINITIONS

(a) When used in this Agreement, the following capitalized terms have
the following meanings:

....

“Agreement” means this Loan Agreement, as the same may from time to
time hereafter be amended, restated, replaced, supplemented or otherwise
modified in accordance herewith.

....

“Servicer” means the entity or entities appointed by Lender from time to time
to serve as servicer and/or special servicer of the Loan. If at any time no
entity is so appointed, the term “Servicer” shall be deemed to refer to
Lender.

9.2 GOVERNING LAW.

(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CHOICE OF LAW RULES TO THE EXTENT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.

(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER
OR BORROWER ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS (OTHER
THAN ANY ACTION IN RESPECT OF THE CREATION, PERFECTION OR
ENFORCEMENT OF A LIEN OR SECURITY INTEREST CREATED
PURSUANT TO ANY LOAN DOCUMENTS NOT GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK) MAY BE INSTITUTED IN ANY
FEDERAL OR STATE COURT IN NEW YORK, NEW YORK. . . .

....

9.17 General Indemnity; Payment of Expenses.

....

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(f) Borrower shall reimburse Lender upon receipt of written notice from
Lender for . . . (ii) all reasonable out-of-pocket costs and expenses incurred
by Lender (or any of its affiliates) in connection with . . . (D) enforcing or
preserving any rights, in response to third party claims or the prosecuting or
defending of any action or proceeding or other litigation, in each case
against, under or affecting Borrower, this Agreement, the other Loan
Documents or any Collateral. . . .

9.22 Servicer. Lender may delegate any and all rights and obligations of
Lender hereunder and under the other Loan Documents to the Servicer
upon notice by Lender to Borrower, whereupon any notice or consent from
the Servicer to Borrower, and any action by Servicer on Lender’s behalf,
shall have the same force and effect as if Servicer were Lender.

The complaint attached to Doherty’s affidavit was purportedly filed on September

18, 2018, by SRGV against Rialto, Goldman, and Northmarq in the Supreme Court of the

State of New York, County of New York (New York trial court). SRGV’s complaint alleged

that Goldman failed to disburse to SRGV an “Earnout Initial Deposit Amount of

$1,100,000.00” after SRGV confirmed “all the conditions precedent to disbursement” and

had demanded disbursement from Goldman. According to SRGV, Rialto, “purportedly

acting as special servicer on behalf of Goldman, denied the disbursement without

explanation.” SRGV raised six causes of action against the defendants. With respect to

Rialto, SRGV specifically alleged that Rialto tortiously interfered with the loan agreement.

The indemnification demand letter attached to Doherty’s affidavit was sent by

Rialto on December 7, 2018. The letter provided SRGV notice of Rialto’s demand for

indemnification under the loan agreement for “any and all sums Lender may be required

to pay arising out of” SRGV’s litigation in the New York trial court. In the letter, Rialto

stated it had written its letter “in its capacity as ‘General Special Servicer’” for the lender

of SRGV’s loan.

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The stipulation attached to Doherty’s affidavit was entered on January 22, 2019,

in the New York trial court. It was titled “STIPULATION DISCONTINUING ACTION

WITHOUT PREJUDICE AGAINST GOLDMAN SACHS MORTGAGE COMPANY ONLY

AND AMENDING CAPTION,” and indicated that the parties of SRGV’s New York lawsuit

stipulated and agreed that the action “is[] discontinued without prejudice as against

[Goldman] only,” that “SRGV may file an amended summons and complaint . . . dropping

[Goldman] as a defendant and adding [Wells Fargo Bank] as Trustee . . . as a defendant.”

The “Notice of Discontinuance” attached to Doherty’s affidavit was filed by SRGV

on May 23, 2019, SRGV in the New York trial court. SRGV stated in the notice that it

“hereby discontinues this action . . . without prejudice and without costs or attorneys’ fees

to any party as against another.”

On October 21, 2020, in the Texas suit, SRGV filed its response to Rialto’s motion

to dismiss. SRGV pleaded that it “owns The Shoppes . . . , a popular shopping center

located in Edinburg’s commercial district,” its loan was guaranteed by a deed of trust “filed

in [the] Hidalgo County real property records,” and “the only connection this matter has to

New York is that [SRGV] borrowed money to finance the shopping center from a lending

institution bank that happens to be based in New York.” SRGV argued that “everything

about [its] case involves Texas,” that “[Rialto] claimed it was the agent of the duly-

assigned lender and . . . entitled to reimbursement for its attorneys’ fees” as the result of

SRGV’s discontinuance of its New York litigation, and that Rialto “indirectly threatened to

foreclose upon the shopping center if [SRGV] did not pay their demand.” 2 SRGV argued

2 We note that SRGV referred to itself in its response as a “Texas resident” and a “Texas company.”

8
that Doherty’s affidavit was facially insufficient and that some of his statements were

conclusory. Furthermore, SRGV argued that several private and public interest factors

weighed against dismissal. SRGV attached four exhibits in support of its response,

including a copy of SRGV’s loan agreement and deed of trust, an affidavit by Jeffery

Carlson, an affidavit by Hitesh K. Chugani, and an affidavit by John D. Dercole.

Carlson stated in his affidavit that he was employed as general counsel for the

First Hartford Corporation, the parent company of “First Hartford Realty Corporation[,]

which is the owner of the corporate general partner (First Rio Grande Valley, Inc.) of the

sole member ([The Shoppes]) of [SRGV].” According to Carlson, The Shoppes “consists

of approximately 60 acres and 450,000 square feet of retail space” and “has likely

generated millions of dollars in various forms of tax revenue, and provided employment

to numerous Hidalgo County residents” since its inception in 2007. Carlson stated that

SRGV “maintains two legal residencies,” one in Connecticut, “where its executive offices

are located,” and the other in Texas, “where its business activities are conducted and its

assets are located.” Carlson further attested that SRGV’s “sole source of revenue is the

monies generated from the shopping center, which are deposited into Texas bank

accounts,” that it “files the relevant Texas corporate tax returns,” and that it “maintains an

on-site manager or managers in Texas, who make the day to day operational decisions

for [SRGV].” Carlson then described the circumstances of SRGV’s New York lawsuit and

how Rialto demanded $207,299.97 in attorney’s fees after SRGV “discontinued” the case.

Carlson further stated that SRGV “acceded to [Rialto’s] demands and paid [Rialto] the

entire amount of the funds requested with money generated in Texas, and which would

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be debited from [SRGV’s] Texas bank account”; that it is “now seeking return of such

money, so that such can be deposited into a Texas bank account, [SRGV’s] operating

account”; and “[u]pon receipt, this money would be available to pay for . . . the Texas

operations of [SRGV].”

Chugani attested that he was a licensed attorney who had practiced before the

Honorable Marla Cueller of the 275th District Court. Chugani stated that Judge Cuellar “is

clearly able to determine Texas law,” and that he was sure she “can determine New York

law” “[a]fter being provided the required materials.” Chugani stated that Judge Cuellar

“would move to resolve this case quickly,” and that if the matter was not resolved by

summary judgment, “a trial on the merits would be held in approximately a year and [a]

half to two years (most of the delay being caused by the backlog resulting from the Covid

19 pandemic).” According to Chugani, SRGV’s case “would not linger on the docket for

approximately seven to ten years.”

Dercole stated in his affidavit that he was a licensed attorney, and that the “majority

of [his] practice involves litigation in the state and federal courts of New York.” Dercole

stated that he “disagree[d] with a number of statements” made in Doherty’s affidavit.

According to Dercole, “Rialto should have no problem obtaining documents and records

from its New York attorneys necessary for it to defend [SRGV’s Texas] ligation,” and it

should have “no problem obtaining testimony from its attorneys.” Dercole also stated,

“With the advent of C[OVID-]19, courts in New York State, as have those throughout the

country, become adept at utilizing distant video conferencing services,” and the “[u]se of

such [services] will avoid forcing Rialto’s New York attorneys from traveling to Texas.”

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Dercole further attested that “[b]ills from [Rialto’s] New York attorney’s for . . . legal

services likely number only a small number of pages which can easily be transmitted by

fax or attached to an email.” Dercole stated

Rialto’s motion misstates basic New York civil procedure. The motion
implies that had [SRGV] filed a lawsuit in New York, such new case would
automatically be assigned to the court in which the initial lawsuit was filed.
Such an assignment is not guaranteed. Lawsuits in New York are assigned
to courts on a generally random basis; the litigants do not possess a choice
of which court in which to appear. They can merely request that a newly
filed case be assigned to a judge who handled a previous or pending related
case. Such assignment or transfer is not guaranteed.

Dercole further stated that “Rialto’s entitlement to attorney’s fees for its defense of the

New York action involves[ ]an interpretation of the loan agreement and [the stipulation of

discontinuance executed by Goldman] and, if it is so entitled, a determination of whether

the $200,000 in fees charge[d] was reasonable.” According to Dercole, “the New York

[trial] court is not in any better position to make these determinations than [the 275th

District] Court since the New York action was dismissed essentially without any

substantive orders being issued by the [trial c]ourt.” Dercole stated that SRGV’s case

“could be resolved much quicker in Hidalgo County, Texas,” and that he “would anticipate

that it would take longer to resolve this matter if this case were refiled in New York,

especially given that New York State courts are not fully operational as they were before

C[OVID-]19.” Dercole also attested that Doherty’s statements “concerning a special

process for determining the reasonableness of attorney’s fees is overstated,” that “not

every New York judge will refer a determination of the reasonableness of attorney’s fees

to a special master or judicial hearing officer.” Furthermore, Dercole stated that

for those courts which possess ‘Special Masters or Judicial Hearing

11
Officers[,’] their primary job is to assist the court with issues referred to them.
Thus, the special master of judicial hearing officer ordinarily will only make
a recommendation regarding the reasonableness of fees to which the
assigned judge need not accept. Thus, it can be more efficient for the judge
to decide the issue of attorney’s fees directly without making a reference.

On January 31, 2022, Rialto filed its “Reply Memorandum of Law in Further

Support of [Rialto’s] Motion to Dismiss Under the Doctrine of Forum Non Conveniens.”

On February 24, 2022, SRGV filed its sur-reply. 3

On August 3, 2023, the instant case was transferred via written order from the

275th District Court to the 476th District Court (trial court). On September 14, 2023, the

Honorable Missy Medary, the presiding judge of the Fifth Administrative Judicial Region

of Texas, assigned the Honorable Martin Chiuminatto, former judge, to preside over

SRGV’s case via written order. On January 3, 2024, the trial court entered its “Agreed

Docket Control Order,” which set, among other things, Rialto’s motion to dismiss for “re-

hearing on February 23, 2024[,] at 10 A.M. in person.” On February 21, 2024, the parties

filed a joint motion requesting that the February 23, 2024 hearing “be a hearing by

submission.” That same day, the trial court signed its order granting the joint motion.

On February 28, 2024, the trial court signed its order granting Rialto’s motion to

dismiss for forum non conveniens and dismissed SRGV’s case with prejudice. On March

15, 2024, SRGV filed its request for findings of facts and conclusions of law, as well as

its “Motion to Amend, Modify, Or Correct Order of Dismissal.” In its motion, SRGV argued,

among other things, that the trial court’s order was “incorrect as to form” because it

3 The record before us contains no reporter’s record of any hearing on Rialto’s motion to dismiss

for forum non conveniens.

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dismissed the case with prejudice, which it urged was improper. SRGV requested that

the order “be amended and reformed.” On April 9, 2024, SRGV filed its notice of past due

findings of facts and conclusions of law. On April 18, 2024, the trial court issued the

following findings of fact and conclusions of law:

I.
FINDINGS OF FACT

1. [SRGV] is a commercial loan borrower that obtained a $32,500,000
loan secured by the mortgage of a shopping center known as [The
Shoppes] (the “Loan”) pursuant to a loan agreement (the “Loan
Agreement”). The Loan is held by a trust.

2. The Loan Agreement is governed by New York law and contains a
New York forum selection clause, which is permissive.

3. [Rialto] acts as the special servicer for the Loan. Rialto’s principal
place of business is in Miami, Florida.

4. Approximately 6 years ago, a dispute arose between [SRGV] and
Rialto as the Lender, wherein [SRGV] alleged that Rialto wrongly
refused to release money held as security for the Loan. [SRGV] hired
a New York law firm (Phillips Lytle LLP), filed suit in New York state
court against Rialto and others, and alleged that venue and
jurisdiction were proper in New York (the “New York Litigation”). In
the New York Litigation, [SRGV] alleged that its principal place of
business was in Connecticut.

5. Under the Loan Agreement, Lender has the right to recoup from
[SRGV] “all reasonable out of pocket costs and expenses incurred
by Lender (or any of its affiliates) in connection with . . . defending []
any action or proceeding or other litigation, in each case against,
under or affecting [(SRGV) or the Loan Agreement].” Loan
Agreement § 9.17.

6. Because the New York Litigation triggered the Lender’s right to
indemnification under the Loan Agreement, the Lender (Rialto) sent
[SRGV] a notice at the outset of the New York Litigation that [SRGV]
would be responsible for the Lender’s legal fees in the litigation.

7. [SRGV] voluntarily dismissed the New York Litigation after

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approximately eight months.

8. Once the case was dismissed, Lender billed [SRGV] for the
attorneys’ fees incurred in the New York Litigation.

9. [SRGV] contested its obligation to pay Lender’s legal fees and
expenses and retained another New York law firm to contest its
payment of the fees, and that firm sent a letter and made several
demands of Lender in New York.

10. In 2019, [SRGV] filed this Action in Hidalgo County, Texas.

II.
CONCLUSIONS OF LAW

11. The doctrine of forum non conveniens requires the dismissal of this
[a]ction.

12. Forum non conveniens is an equitable doctrine exercised by courts
to prevent the imposition of an inconvenient jurisdiction on a litigant.
See K2M3, LLC v. Cocoon Data Holding Pty. Ltd., No. 13-11-00194-
CV, 2012 [WL 2469705], at *11 (Tex. App.—Corpus Christi[–
Edinburg] June 28, 2012, pet. denied) (mem. op.) (citing Vinmar
Trade Fin., Ltd. v. Util. Trailers de Mex., S.A. de C.V., 336 S.W.3d
664[,] 671 (Tex. App.—Houston [1st Dist.] 2010, no pet.)[).]

13. In deciding whether to exercise forum non conveniens, courts must
determine whether there exists an alternative forum and, if so,
determine which forum is best suited to the litigation. See Piper
Aircraft Co. v. Reyno, 454 U.S. 235[ ](1981).

14. In deciding what forum is best suited to the litigation, courts consider
whether certain private and public interest factors weigh in favor of
dismissal. Private considerations include: (a) the relative ease of
access to sources of proof; (b) the availability of compulsory process
for attendance of unwilling, and the cost of obtaining attendance of
willing, witnesses; (c) the possibility of view of premises, if view
would be appropriate to the action; (d) the enforceability of a
judgment once obtained; and (e) all other practical problems that
make trial of a case easy, expeditious and inexpensive. Public
considerations include: (a) administrative difficulties for courts when
litigation is piled up in congested centers instead of being handled at
its origin; (b) the burden of jury duty that ought not to be imposed
upon the people of a community which has no relation to the

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litigation; (c) local interest in having localized controversies decided
at home; and (d) avoiding conflicts of law issues. See Gulf OiI Corp.
v. Gilbert, 330 U.S. 501[ ](1947).

15. New York exists as an alternative forum that is both available and
adequate. New York courts are available; the parties have already
litigated there and the Loan Agreement contains a permissive New
York forum selection clause. In addition, New York courts are
adequate to address [SRGV’s] claim, which arose in New York and
is controlled by New York law.

16. The public interest factors weigh in favor of dismissal because New
York courts are conveniently situated to resolve this matter. This is
fundamentally a New York dispute, involving questions of New York
law, a New York contract, and the interpretation of the New York
Order in the New York Litigation. The only aspect of this case related
to the Hidalgo County community is that the Loan issued under the
Loan Agreement is secured by [The Shoppes]. But this case has no
relation to the real property securing the Loan; it involves the
reasonableness of a New York law firm’s legal fees incurred as part
of the New York Litigation, under a New York contract. As New York
is where the fees were incurred, Texas has no genuine interest in
this litigation. In addition, New York has a pronounced local interest
in deciding the issue before this Court because the issue arose in
New York and the court is asked to interpret an order issued by a
New York court. Lastly, it is more convenient to litigate this case in
New York because the case is controlled entirely by New York law.

17. The private interest factors weigh in favor of dismissal[.] [T]he
primary sources of proof are more conveniently available and
reviewed in New York by the New York courts. The primary factual
issue in this case is the reasonableness of the at-issue attorneys’
fees. The sources of proof regarding these fees will come from the
files, affidavits, and testimony of the New York law firm and attorneys
that litigated the New York Litigation. This proof and witness
testimony is much more accessible in New York than in Texas.
Additionally, the New York courts have a process in place to
determine whether legal fees are reasonable; New York Supreme
Court judges refer them to Special Masters or Judicial Hearing
Officers, whose primary job is to determine the applicability and
reasonableness of attorneys’ fees.

18. This Court therefore has no connection to the dispute at issue and
the doctrine of forum non conveniens requires dismissal.

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This appeal ensued. 4

II. FORUM NON CONVENIENS

In its first issue, SRGV argues that the trial court abused its discretion when it

granted Rialto’s motion to dismiss, raising multiple arguments we address in turn, below.

A. Standard of Review and Applicable Law

We review a trial court’s decision to dismiss a case on forum non conveniens

grounds for an abuse of discretion. See In re Gen. Elec. Co., 271 S.W.3d 681, 685 (Tex.

2008). A trial court abuses its discretion if its decision is arbitrary, unreasonable, or without

reference to guiding principles. See id. (citing In re Pirelli Tire, L.L.C., 247 S.W.3d 670,

676 (Tex. 2007) (orig. proceeding)). “In assessing whether a trial court abused its

discretion, relevant factors include the legal and factual sufficiency of evidence supporting

the [trial] court’s findings.” Alvarez Gottwald v. Dominguez de Cano, 568 S.W.3d 241, 246

(Tex. App.—El Paso 2019, pet. denied) (citing Tullis v. Ga.-Pac. Corp., 45 S.W.3d 118,

121 (Tex. App.—Fort Worth 2000, no pet.)); see also RSR Corp. v. Siegmund, 309

S.W.3d 686, 709 (Tex. App.—Dallas 2010, no pet.) (“A trial court does not abuse its

discretion when it bases its decision on conflicting evidence and there is evidence in the

record that reasonably supports the decision.”).

“In determining a legal sufficiency [challenge], we consider all evidence in the light

4 The record does not contain an amended or reformed order granting Rialto’s motion to dismiss

for forum non conveniens by the trial court. Therefore, we conclude that SRGV’s motion was overruled by
operation of law. See TEX. R. CIV. P. 329b(c), (e); see also Phillips v. Am. Bankers Ins. Co. of Fla., No. 01-
18-00375-CV, 2019 WL 3121856, at *5 (Tex. App.—Houston [1st Dist.] July 16, 2019, pet. denied) (mem.
op.) (“If a motion to modify a judgment is not denied in a written order, then the motion is overruled by
operation of law 75 days after the trial court signs the judgment.”).

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most favorable to the party in whose favor the trial court ruled, and indulge every

reasonable inference from the evidence in that party’s favor.” Alvarez Gottwald, 568

S.W.3d at 246 (citing Formosa Plastics Corp. USA v. Presidio Eng’rs & 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.” Id.

(citing 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 conclusions as to the existence

of a vital fact.” Id. (citing Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992) (per

curiam)). In addition, “[w]e sustain a factual sufficiency challenge only when the evidence

supporting the finding is so weak ‘as to be clearly wrong and unjust.’” Eggemeyer v.

Hughes, 621 S.W.3d 883, 890 (Tex. App.—El Paso 2021, no pet.) (citing Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986) (per curiam)).

“[W]e must respect that the trial court as the fact finder was the sole judge of the

credibility of the witnesses and the weight to be given to their testimony; we presume the

trial court resolved any conflicting evidence in favor of the prevailing party.” Id. (first citing

City of Keller v. Wilson, 168 S.W.3d 802, 819–20 (Tex. 2005); and then citing Wheeling

v. Wheeling, 546 S.W.3d 216, 223 (Tex. App.—El Paso 2017, no pet.)). “Indeed, so long

as the evidence at trial ‘would enable reasonable and fair-minded people to differ in their

17
conclusions,’ we will not substitute our judgment for that of the fact finder.” Id. (first citing

Wilson, 168 S.W.3d at 822; and then citing Wheeling, 546 S.W.3d at 223).

Forum non conveniens “is an equitable doctrine exercised by courts to prevent the

imposition of an inconvenient jurisdiction on a litigant.” Alvarez Gottwald, 568 S.W.3d at

246 (first citing Exxon Corp. v. Choo, 881 S.W.2d 301, 302 n.2 (Tex. 1994); and then

citing Yoroshii Investments (Mauritius) Pte. Ltd. v. BP Intern., Ltd., 179 S.W.3d 639, 643

(Tex. App.—El Paso 2005, pet. denied)). “A trial court will exercise the doctrine of forum

non conveniens when it determines that, for the convenience of the litigants and

witnesses and in the interest of justice, the action should be instituted in another forum.”

Vinmar Trade Fin., Ltd., 336 S.W.3d at 672 (citing Choo, 881 S.W.2d at 302). “Texas

recognizes two types of forum non conveniens analysis.” In re Weatherford Int’l, LLC, 688

S.W.3d 874, 879 (Tex. 2024) (orig. proceeding). “Statutory forum non conveniens ‘applies

to actions for personal injury or wrongful death.’” Id. (quoting TEX. CIV. PRAC. & REM. CODE

§ 71.051(i)). “Common-law forum non conveniens applies in all other types of actions,”

like the instant case. Id. (first citing In re Mahindra USA, Inc., 549 S.W.3d 541, 544 (Tex.

2018); and then citing Alvarez Gottwald, 568 S.W.3d at 246). “Texas courts have routinely

looked to a well-developed body of federal law to guide forum non conveniens disputes.”

Diaz v. Todd, 618 S.W.3d 798, 804 (Tex. App.—El Paso 2020, no pet.) (citation modified)

(citing Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 32 (Tex. 2010) (per

curiam) (“[W]e regularly consider United States Supreme Court precedent in both our

common law and statutory forum non conveniens cases.”)).

“At its core, forum non conveniens is a balancing act.” Id. at 804 (citation modified).

18
“Courts balance the plaintiff’s choice of forum against how a set of public and private

interests might ‘strongly favor’ an available alternate forum.” Id. (quoting Veba-Chemie

A.G. v. M/V Getafix, 711 F.2d 1243, 1245 (5th Cir. 1983) (“[A] forum non conveniens

dismissal must be based on the finding that, when weighed against plaintiff’s choice of

forum, the relevant public and private interests strongly favor a specific, adequate and

available alternative forum.”)). “Generally, a plaintiff’s choice of forum is entitled to

deference, and a defendant seeking forum non conveniens dismissal bears a heavy

burden in opposing the plaintiff’s chosen forum.” Alvarez Gottwald, 568 S.W.3d at 248

(citation modified) (quoting Quixtar, 315 S.W.3d at 31). “A non-resident plaintiff’s choice

to sue in Texas, however, enjoys ‘substantially less deference’ than it would if the plaintiff

had been a resident of Texas.” Id. (quoting Quixtar, 315 S.W.3d at 33). “As such, a

defendant’s burden of proof is less stringent when plaintiffs are not Texas residents.” Id.

Further, the Texas Supreme Court has recognized that “[i]t is fundamentally unfair to

burden the people of Texas with the cost of providing courts to hear cases that have no

significant connection with the State.” In re Pirelli, 247 S.W.3d at 676 (quoting In re Smith

Barney, 975 S.W.2d 593, 598 (Tex. 1998)).

An alternate forum must be both adequate and available. See In re Elamex, S.A.

de C.V., 367 S.W.3d 879, 887 (Tex. App.—El Paso, 2012, orig. proceeding) (“Because

the common law doctrine of forum non conveniens presumes that at least two forums are

available to a plaintiff, a trial court must first determine whether an alternative forum exists,

inquiring whether another forum is ‘available’ and ‘adequate.’” (citation modified)); Alvarez

Gottwald, 568 S.W.3d at 249 (“[U]nder common law forum non conveniens analysis,

19
whether a forum is both available and adequate is a threshold question to be answered

before a court can weigh the public and private factors considered in a common law forum

non conveniens analysis.” (citation modified)). If such an alternate forum exists, courts

then assess the relevant private and public interests as established in Gulf Oil Corp. v.

Gilbert, 330 U.S. 501, 509 (1947). Diaz, 618 S.W.3d at 805. The private interests include:

(1) the ease of access to sources of proof; (2) the availability of the
compulsory process for attendance of unwilling witnesses; (3) the cost of
obtaining the attendance of willing witnesses; (4) all other practical
problems, affecting the ease and expense of the case; and (5) issues
related to the enforceability of a judgment obtained in the forum.

Siegmund, 309 S.W.3d at 710 (first citing Sarieddine v. Moussa, 820 S.W.2d 837, 842

(Tex. App.—Dallas 1991, writ denied); and then citing Gulf Oil, 330 U.S. at 508). The

public interests include:

(1) the burden imposed on the citizens of the state; (2) the burden imposed
on the state’s court; (3) the general interest in having localized
controversies decided in the jurisdiction in which they arose; and (4) the
appropriateness in having a diversity case tried in a forum that is familiar
with the law that must govern the case.

Id. The forum non conveniens determination “may be reversed only when there has been

a clear abuse of discretion; where the court has considered all the relevant public and

private interest factors, and where its balancing of these factors is reasonable, its

discretion deserves substantial deference.” Quixtar, 315 S.W.3d at 31 (quoting Reyno,

454 U.S. at 257).

20
B. Analysis

1. Delay

SRGV complains that the trial court “should have summarily overruled” Rialto’s

motion to dismiss “[g]iven [Rialto’s] repeated delays in obtaining a hearing on its forum

non conveniens motion, [Rialto’s] complete failure to take any additional steps to obtain

a ruling, and [Rialto’s] efforts to take the matter to trial.” Rialto responds that SRGV failed

to preserve this sub-issue by “failing to raise it before either trial court.” See TEX R. APP.

P. 33.1. Even assuming SRGV’s sub-issue is preserved, we conclude it is without merit.

SRGV cites to several cases for the proposition that a trial court should “summarily

deny a forum non conveniens request” when litigation has already proceeded, including

Munro v. Jagpal, No. 05-21-00125-CV, 2023 WL 3914554 (Tex. App.—Dallas June 9,

2023, no pet.) (mem. op.); Bell v. Louisville & Nashville R. Co., 478 N.E.2d 384 (Ill. 1985);

and Ganpat v. E. Pac. Shipping, Pte., Ltd., 581 F.Supp.3d 773 (E.D. La. 2022). 5 We note

that none of these cases are binding on this Court. See In re P.J.G., No. 13-24-00087-

CV, 2026 WL 202560, at *3 (Tex. App.—Corpus Christi–Edinburg Jan. 26, 2026, no pet.)

(mem. op.) (citing cases highlighting that Texas courts are obligated to follow only higher

Texas courts and the United States Supreme Court). In addition, Munro, Bell, and Ganpat

involve the denial of a party’s forum non conveniens motion when that motion was filed

more than two years after a lawsuit commenced. See Munro, 2023 WL 3914554, at *7

(holding that the “appellees waived reliance on forum non conveniens with intentional

5 SRGV also cites Elmaliach v. Bank of China Ltd., 971 N.Y.S.2d 504, 519 (N.Y. App. Div. 2013).

However, we have reviewed Elmaliach and conclude it does not support the proposition espoused by
SRGV.

21
conduct inconsistent with such claim” when they filed suit in the forum in 2017 and did not

raise forum non conveniens until 2020, “after the parties had litigated back and forth, and

after the trial court had partially granted appellants’ motion for summary judgment”);

Ganpat, 581 F.Supp.3d at 793–94 (holding that the plaintiff “knew of the facts supporting

its forum non conveniens motion for two and a half years before the motion was filed” and

stated that the appellee’s “dilatoriness in filing its forum non conveniens motion is most

influential” on the court’s decision to deny it); Bell, 478 N.E.2d at 385–395 (upholding, in

a consolidated case, a trial court’s orders denying the appellee’s forum non conveniens

motion because the appellee delayed filing its motion over thirty months after the

complaint was filed in each case). Here, the record demonstrates that Rialto filed its forum

non conveniens motion less than three months after SRGV filed its original petition. Thus,

the record does not support that Rialto untimely filed its motion based on the cited cases.

SRGV also argues that Rialto “canceled” hearings set for its forum non conveniens

motion six times throughout 2020 and 2021. However, SRGV provides no citations to the

record supporting these assertions and has thus inadequately briefed this point. See TEX.

R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.”); Shetty v.

Arconic Inc., No. 01-19-00158-CV, 2020 WL 2026371, at *2 (Tex. App.—Houston [1st

Dist.] Apr. 28, 2020, no pet.) (mem. op.) (holding issues inadequately briefed when

appellant’s “brief include[d] a recitation of the facts . . . [but] no record references”). In any

event, the record demonstrates that the parties requested two hearings set in 2020 to be

removed from the trial court’s docket pursuant to a Rule 11 agreement. See TEX. R. CIV.

22
P. 11 (providing that an agreement between attorneys or parties is enforceable if it is in

writing, signed, and filed as part of the record). Thus, SRGV cannot now complain about

these resets on appeal. See Gomez de Hernandez v. Bridgestone/Firestone N. Am. Tire,

L.L.C., 204 S.W.3d 473, 481 (Tex. App.—Corpus Christi–Edinburg 2006, pet. denied)

(holding appellants could not complain that the trial court heard a statutory forum non

conveniens motion less than thirty days prior to trial when they agreed to do so pursuant

to a Rule 11 agreement). Furthermore, we have found nothing in the record that supports

SRGV’s assertion that Rialto was solely responsible for causing the other four hearings

to be “canceled.” As noted above, the parties filed a joint request for the trial court to hear

Rialto’s motion by submission instead of conducting an in-person hearing.

SRGV further argues that “[w]hen the trial court failed to rule on the motion within

a reasonable time, [Rialto] could have filed a motion[] requesting a ruling,” but it failed to

do so. SRGV additionally asserts that Rialto could have filed a mandamus proceeding to

obtain a ruling, but that it failed to do so. However, SRGV provides no citation to case

authorities in support of these contentions. See TEX. R. APP. P. 38.1(i). Furthermore, we

have found no case authorities providing that a trial court abuses its discretion when it

grants a forum non conveniens motion at an “unreasonable” time. Accordingly, we reject

SRGV’s contentions for these reasons.

2. Alternate Forum

Our analysis of SRGV’s appeal necessarily begins by determining whether there

was an available and adequate alternate forum. See Alvarez Gottwald, 568 S.W.3d at

249. In its conclusion of law number fifteen, the trial court concluded that

23
New York courts are available; the parties have already litigated there and
the Loan Agreement contains a permissive New York forum selection
clause. In addition, New York courts are adequate to address [SRGV’s]
claim, which arose in New York and is controlled by New York law.

SRGV does not challenge this particular conclusion of law. Furthermore, SRGV does not

challenge any of the trial court’s findings of fact in relation to this conclusion. “We defer

to unchallenged findings of fact that are supported by some evidence.” R2 Rests., Inc. v.

Mineola Cmty. Bank, SSB, 561 S.W.3d 642, 653 (Tex. App.—Tyler 2018, pet. denied)

(citing Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523 (Tex.

2014)); see also Pettit v. Tabor, No. 06-19-00002-CV, 2020 WL 216025, at *13 (Tex.

App.—Texarkana Jan. 15, 2020, pet. denied) (mem. op.) (“Unless no evidence supports

the finding, or the contrary is established as a matter of law, we are bound by the trial

court’s unchallenged findings of fact.”). We conclude that the unchallenged findings are

supported by legally and factually sufficient evidence, namely, the evidence Rialto

attached to its motion to dismiss, including Doherty’s affidavit testimony regarding the

chronology of the underlying lawsuit and SRGV’s New York litigation, 6 the copy of

SRGV’s loan agreement and deed of trust, the copy of SRGV’s complaint filed in the New

York litigation, the copy of the dismissal order issued in the New York litigation, SRGV’s

notice of discontinuance in the New York litigation, and Rialto’s indemnification demand

letter to SRGV. See Alvarez Gottwald, 568 S.W.3d at 246; Eggemeyer, 621 S.W.3d at

890. Consequently, we are bound by the unchallenged findings and conclude they

support the trial court’s conclusion. See Pettit, 2020 WL 216025, at *13. Furthermore, that

6 We note that SRGV specifically challenges other aspects of Doherty’s affidavit testimony as it

relates to public and private interest factors, which we address below.

24
same evidence, beyond the findings, supports the trial court’s conclusion; therefore, we

next consider the relevant public and private interest factors. See Diaz, 618 S.W.3d at

805.

3. Public and Private Interest Factors

In its brief, SRGV argues the trial court neglected to balance the public and private

interest factors, that “[a]bsolutely nothing contained in the trial court’s findings and

conclusions reflects that such balancing occurred,” and that “[s]uch failure to balance and

explain its reasoning clearly constitutes an abused of discretion.” We disagree.

Before addressing the factors, we first note that SRGV challenges Doherty’s

affidavit as being insufficient to “warrant transfer.” Specifically, SRGV argues that

Doherty’s affidavit was conclusory because it failed to discuss all “elements” relevant to

the trial court’s forum non conveniens determination and that a movant “must present

evidence and argument on each and every one” of these “elements.” See City of

Stephenville v. Belew, 692 S.W.3d 347, 374 (Tex. App.—Eastland 2024, pet. denied)

(“Affidavits are conclusory if the facts in the affidavits do not support the proffered

conclusions.” (citing Yost v. Jered Custom Homes, 399 S.W.3d 653, 660 (Tex. App.—

Dallas 2013, no pet.))). As laid out above, a trial court’s determination of forum non

conveniens involves the consideration and balance of “all the relevant public and private

interest factors,” not elements. Quixtar, 315 S.W.3d at 31 (emphasis added).

Furthermore, SRGV has cited no authority supporting the contention that a movant must

present evidence pertaining to each and every factor, and we have found authority

explicitly holding the opposite. See TEX. R. APP. P. 38.1(i); Crum & Forster Specialty Ins.

25
Co. v. Creekstone Builders, Inc., 489 S.W.3d 473, 482–83 (Tex. App.—Houston [1st Dist.]

2015, no pet.) (holding that a defendant moving for dismissal on forum non conveniens

grounds is not required to prove that each public and private interest factor strongly favors

dismissal of the case).

SRGV also challenges the trial court’s conclusion of law number thirteen, arguing

that “the trial court erred in claiming[] its role under forum non conveniens is to ‘determine

which forum is best suited to the litigation.’” The conclusion stated that, “In deciding

whether to exercise forum non conveniens, courts must determine whether there exists

an alternative forum and, if so, determine which forum is best suited to the litigation.” We

agree that this conclusion does not accurately state the basis by which a trial court must

determine a forum non conveniens motion. See Diaz, 618 S.W.3d at 804 (“Courts balance

the plaintiff’s choice of forum against how a set of public and private interests might

‘strongly favor’ an available alternate forum.”). However, if an appellate court “determines

a conclusion of law is erroneous, but the trial court rendered the proper judgment, the

erroneous conclusion of law does not require reversal.” BMC Software Belg., N.V. v.

Marchand, 83 S.W.3d 789, 794 (Tex. 2002) (citing Scholz v. Heath, 642 S.W.2d 554, 559

(Tex. App.—Waco 1982, no writ). In light of Marchand, we now evaluate the trial court’s

conclusions regarding the public and private interest factors.

In conclusion of law number sixteen, the trial court concluded that the public

interest factors weighed in favor of dismissal because

New York courts are conveniently situated to resolve this matter. This is
fundamentally a New York dispute, involving questions of New York law,
a New York contract, and the interpretation of the New York Order in the
New York Litigation. The only aspect of this case related to the Hidalgo

26
County community is that the Loan issued under the Loan Agreement is
secured by [The Shoppes]. But this case has no relation to the real
property securing the Loan; it involves the reasonableness of a New
York law firm’s legal fees incurred as part of the New York Litigation,
under a New York contract. As New York is where the fees were
incurred, Texas has no genuine interest in this litigation. In addition, New
York has a pronounced local interest in deciding the issue before this
Court because the issue arose in New York and the court is asked to
interpret an order issued by a New York court. Lastly, it is more
convenient to litigate this case in New York because the case is
controlled entirely by New York law.

SRGV does not challenge any of the trial court’s findings of fact which relate to this

conclusion, and we have already concluded above that those findings were supported by

sufficient evidence. In addition, beyond the findings, we conclude the same evidence is

legally and factually sufficient to support the trial court’s conclusion. See Alvarez

Gottwald, 568 S.W.3d at 246; Eggemeyer, 621 S.W.3d at 890.

However, SRGV raises various arguments concerning the trial court’s conclusion

that implicate the third and fourth public interest factors. It argues that the trial court

“misappl[ied] both the applicable law and facts” when it “claimed Texas possessed no

interest in this matter.” Specifically, SRGV contends that it is a Texas resident, which

provides Texas an interest. As discussed above, SRGV’s residency in Texas does not

foreclose all possibility that a trial court cannot properly conclude that the public and

private interest factors weigh in favor of an alternate forum. See Alvarez Gottwald, 568

S.W.3d at 248. In any event, SRGV’s argument implicates the third public interest factor,

that is, the general interest in having localized controversies decided in the jurisdiction in

which they arose. See Siegmund, 309 S.W.3d at 710. In support of its contention, SRGV

argues that “[t]he real property securing the loan and which [Rialto] sought to obtain is

27
located in Texas, which provides Texas an interest” and that the trial court “ignored the

undisputed evidence that [Rialto] threatened to foreclose on such property unless its claim

was paid.” The only reference to the real property securing the loan at issue in SRGV’s

petition was its statement that, “[I]f [SRGV] would have failed to pay the $205,051.00 in

attorney’s fees demanded, [Rialto] would be faced with the threat of foreclosure on

[SRGV’s] shopping center.” SRGV’s pleadings otherwise raised no cause of action or

requested relief concerning any threat to foreclose on SRGV’s real property by Rialto.

Instead, SRGV sought a declaratory judgment concerning the attorney’s fees it paid to

Rialto. The record evidence shows that Rialto demanded payment of attorney’s fees

pursuant to an indemnity provision of the loan agreement, for fees it incurred in the New

York litigation initiated by SRGV. Furthermore, the only evidence related to a threat of

foreclosure by Rialto came from Carlson’s affidavit testimony stating:

By an email dated August 9, 2019[,] from Northmarq (see attached Exhibit
B) [SRGV] was advised that Rialto “had instructed Northmarq to apply the
Lender’s legal fees of ($207,299.97) (this amount included mediator fees of
approximately $2,250.00), to the September billing statement” for its loan.
By this communication, [SRGV] felt that [Rialto] had made it clear, albeit
indirectly, that if [SRGV] did not pay the requested fees, [Rialto] could call
a loan default and then [Rialto] would ultimately[ ]foreclose on [SRGV’s]
property in Hidalgo County, pursuant to the deed of trust filed in the Hidalgo
County deed records.

The referenced Exhibit B was a copy of an email forwarded to Carlson written by Wilson

Molitor of Northmarq. Molitor wrote the following:

The special servicer, Rialto, has instructed North[m]arq to apply Lender’s
legal fees of $207,299.97 to the September billing statement. These are
Lender’s legal costs tied to the lawsuit filed by [SRGV] in September 2018.
Please let me know if there are any questions.

Nothing in Carlson’s affidavit testimony, nor the referenced exhibit, demonstrates that

28
Rialto actually threatened to foreclose on the real property securing SRGV’s loan.

Carlson’s testimony indicates, at most, that SRGV subjectively believed it received a

threat of foreclosure from Rialto. The trial court was not required to credit Carlson’s

affidavit testimony. See Eggemeyer, 621 S.W.3d at 890. Moreover, we cannot say the

real property securing SRGV’s loan is even merely incidental or a collateral interest for

Texas since SRGV’s petition sought no relief or damages in relation to any claims

involving the real property. See In re Pirelli, 247 S.W.3d at 676 (holding “[i]t is

fundamentally unfair to burden the people of Texas with the cost of providing courts to

hear cases that have no significant connection with the State.”). Based on the foregoing,

we cannot conclude that the trial court was erroneous in weighing the third public interest

factor in favor of New York.

SRGV further argues that Texas law, and not New York law, will determine the

reasonableness of attorney’s fees, citing In re Allegretti, 584 B.R. 287, 291–92 (Bankr.

N.D. Ill. 2018) and Microtek Med., Inc. v. 3M Co., 942 So.2d 122, 130 (Miss. 2006). SRGV

does not explain the relevance of the cited cases and we have found none. In any event,

SRGV’s contention implicates the fourth public interest factor, that is, the appropriateness

in having a diversity case tried in a forum that is familiar with the law that must govern the

case. See Siegmund, 309 S.W.3d at 710. Here, the record evidence demonstrates that

Rialto’s demand of attorney’s fees was “written in response to” SRGV’s New York

litigation, based on the indemnification provision in “Section 9.17(f)” of the loan

agreement. The record evidence also demonstrates that the loan agreement itself is

governed by New York law. As such, we conclude that the applicable law concerning

29
reasonableness of attorney’s fees in this case is governed by New York law, not Texas

law. SRGV also argues that “application of a foreign jurisdiction’s law does not mandate

a forum non conveniens dismissal.” On this point, the Supreme Court has held that “the

need to apply foreign law point[s] toward dismissal” but that this alone is insufficient to

justify dismissal when a balancing of all relevant factors shows that a plaintiff’s chosen

forum is appropriate. Reyno, 454 U.S. at 260 n.29. We find Reyno distinguishable

because the trial court here concluded that the public and private interest factors weighed

in favor of dismissal and did not base its ruling solely on the application of the alternate

forum’s law.

SRGV also argues that Rialto “was required to prove that New York law is

exceptionally arcane,” citing Atlantic Marine Construction Co., Inc. v. United States Dist.

Ct. for the W. Dist. of Tex., 571 U.S. 49, 67 (2013). Again, SRGV fails to explain the

relevance of the cited case. Regardless, Atlantic Marine does not stand for the proposition

that the movant of a forum non conveniens motion must prove that any applicable foreign

law would be, as SRGV says, “exceptionally arcane.” SRGV also argues that in the

absence of such proof, “Texas courts presume foreign law is the same as Texas law,”

citing Ogletree v. Crates, 363 S.W.2d 431, 435 (Tex. 1963) (presuming Alabama law to

be the same as Texas law when no proof of Alabama law was introduced at trial) and J.

Parra e Hijos, S.A. de C.V. v. Barroso, 960 S.W.2d 161, 167 n.6 (Tex. App.—Corpus

Christi–Edinburg 1997, no pet.). SRGV again does not explain the relevance of these

cases, but nevertheless, we find them inapposite as the issues in those cases do not

involve forum non conveniens analysis.

30
SRGV argues that Rialto was “required to demonstrate that Texas juries were

completely incompetent to determine reasonable attorney’s fees,” but provides no direct

authority supporting that proposition and we are not aware of any. See TEX. R. APP. P.

38.1(i). SRGV further argues that Rialto was required to present evidence of comparative

docket conditions, citing Ito v. Tokio Marine & Fire Ins. Co., Ltd., 166 F. Appx 932, 935

(9th Cir. 2006). In Ito, the Ninth Circuit held that the federal district court “improperly

analyzed the issue of court congestion by commenting on congestion” in one forum

without considering whether the other forum “provided a speedier forum.” Id. We conclude

Ito is not relevant to this case because the trial court made no analysis or conclusion of

law regarding court congestion between the two forums involved in this case.

Furthermore, Ito does not stand for the proposition that the movant of a forum non

conveniens motion must, in all cases, provide proof of court congestion. See id.; see also

Crum & Forster Specialty, 489 S.W.3d at 482–83. Based on the foregoing, we cannot

conclude that the trial court was erroneous in weighing the fourth public interest factor in

favor of New York.

In conclusion of law number seventeen, the trial court concluded that the private

interest factors weighed in favor of dismissal because

[T]he primary sources of proof are more conveniently available and
reviewed in New York by the New York courts. The primary factual issue in
this case is the reasonableness of the at-issue attorneys’ fees. The sources
of proof regarding these fees will come from the files, affidavits, and
testimony of the New York law firm and attorneys that litigated the New York
Litigation. This proof and witness testimony is much more accessible in New
York than in Texas. Additionally, the New York courts have a process in
place to determine whether legal fees are reasonable; New York Supreme
Court judges refer them to Special Masters or Judicial Hearing Officers,
whose primary job is to determine the applicability and reasonableness of

31
attorneys’ fees.

Again, we note that SRGV does not appear to challenge any of the trial court’s findings

of fact in relation to this conclusion, which we have already concluded are supported by

legally and factually sufficient evidence. We conclude the same evidence, beyond the

findings, also supports the trial court’s conclusion. See Alvarez Gottwald, 568 S.W.3d at

246; Eggemeyer, 621 S.W.3d at 890. However, in relation to the trial court’s conclusion,

SRGV argues that the following statements in Doherty’s affidavit were conclusory:

The sources of proof regarding the at-issue attorneys’ fees will come from,
among other things, the files of [Doherty’s] law firm, Alston & Bird, in New
York. Likewise, the supporting testimony and affidavits will come from
[Doherty] and the other attorneys and support staff that litigated the New
York Litigation, all of whom are in New York.

The New York courts have a process in place to determine whether legal
fees are reasonable. New York Supreme Court judges refer them to Special
Masters or Judicial Hearing Officers, whose primary job is to determine the
applicability and reasonableness of attorneys’ fees.

The basis of SRGV’s conclusory argument is that “[Rialto] and the trial court must go

beyond merely stating the location of the witnesses and documents; [Rialto] must prove

and the trial court must find that the documents cannot be readily transported to Hidalgo

County.” We do not agree that the complained-of statements constitute any proffered

conclusions. See Belew, 692 S.W.3d at 374. Furthermore, the Texas Supreme Court has

already rejected similar reasoning in Quixtar:

[P]arties do not need to quantify the extra costs of litigating in an undesirable
forum in detail for a forum non conveniens dismissal. They only must
provide enough information for the trial court to weigh the interests at hand.
The court of appeals inappropriately disregarded Quixtar’s evidence about
the location of its witnesses and records. Reyno, 454 U.S. at 258–59[]. It is
an “obvious conclusion” that costs will increase when witnesses travel great
distances. [In re] Volkswagen, 545 F.3d[ 304,] 317 [(5th Cir. 2008)] (quoting

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[In re] Volkswagen AG, 371 F.3d [201,] 205[ (5th Cir. 2004)]. Likewise,
Quixtar could have but did not need to quantify the expense or difficulty of
transporting its records. We conclude that there was sufficient evidence
before the trial court for it to determine that the private interest factors
weighed in favor of dismissal.

315 S.W.3d at 34–35. In accordance with Quixtar, we conclude that Doherty’s affidavit

was not conclusory and that Rialto was not required to prove that the “sources of proof

regarding the at-issue attorneys’ fees” cannot be readily transportable to Hidalgo County.

See id. Regarding these “sources of proof,” SRGV argues that Doherty failed to

specifically identify the witnesses, the basis and nature of their testimony, or their

relationship to Rialto. We disagree because Doherty specifically stated that “the

supporting testimony and affidavits” regarding the at-issue attorney’s fees “will come from

[Doherty] and the other attorneys and support staff that litigated the New York Litigation,

all of whom are in New York.” Furthermore, to the extent SRGV impliedly argues that this

statement lacks sufficient detail, Rialto was not required to provide minute, detailed

evidence concerning its “sources of proof.” See id. Instead, Rialto need only have

provided “enough information for the trial court to weigh the interests at hand,” and we

conclude that it did so. Id. at 34. Based on the foregoing, we cannot conclude that the trial

court was erroneous in weighing the private interest factors in favor of New York.

4. Deference

SRGV next argues that the trial court deprived it of the “almost complete deference

it deserved by misapplying the applicable law.” See Alvarez Gottwald, 568 S.W.3d at 248.

SRGV contends that a corporation can maintain two residences and “be sued in both,”

quoting Miler v. Windsor Ins. Co., 923 S.W.2d 91, 95 (Tex. App.—Fort Worth 1996, writ

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denied). SRGV further argues that it is a Texas resident for “forum non conveniens

purposes,” and that it “filed suit where it is located, Hidalgo County.”

The trial court did not issue any conclusions of law regarding SRGV’s residency.

We note that Carlson stated that SRGV “maintains two legal residencies,” one in

Connecticut “where its executive offices are located” and the other in Texas “where its

business activities are conducted and its assets are located.” He further stated that

SRGV’s “sole source of revenue is the monies generated from the shopping center, which

are deposited in Texas bank accounts,” that it “files the relevant Texas corporate tax

returns,” and that it “maintains an on-site manager or managers in Texas, who make the

day to day operational decisions for [SRGV].” On the other hand, SRGV identified itself

as “a Delaware limited liability company” in its loan agreement and pleaded that it was a

“Delaware limited liability company with its principal place of business at 149 Colonial

Road, Manchester, Connecticut 06045” in its complaint filed in the New York litigation.

We first note that the Texas Supreme Court has held that an appellant’s “authority

to do business in Texas does not govern residency.” Quixtar, 315 S.W.3d at 33 n.1 (citing

In re Smith Barney, Inc., 975 S.W.2d at 596 (“Corporations’ power to sue and be sued

says little about their right to do so, and absolutely nothing about the restrictions of the

forum non conveniens doctrine.”) (citation modified)). However, even assuming without

deciding that the evidence supports that SRGV is a Texas resident, causing SRGV’s

choice of forum to be entitled to deference, see Alvarez Gottwald, 568 S.W.3d at 248, we

nevertheless conclude that the trial courts findings and conclusions of law support an

implied conclusion that the public and private interests “strongly favor” New York as an

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alternate forum. Diaz, 618 S.W.3d at 804. Therefore, the trial court did not abuse its

discretion in granting Rialto’s forum non conveniens motion. See In re Gen. Elec. Co.,

271 S.W.3d at 685. We overrule SRGV’s first issue.

III. DISMISSAL WITH PREJUDICE

In its second issue, SRGV argues that the trial court erred in dismissing its case

with prejudice. Generally, a dismissal based on forum non conveniens must be without

prejudice. See Belmonte v. Belmonte, No. 09-07-225 CV, 2008 WL 2057903, at *5 (Tex.

App.—Beaumont May 15, 2008, no pet.) (mem. op.) (citing Owens Corning v. Carter, 997

S.W.2d 560, 580 n.13 (Tex. 1999)). Rialto agrees that the judgment should be

“reformed . . . to be without prejudice.” Texas Rules of Appellate Procedure 43.2(b)

authorizes the courts of appeals to “modify the trial court’s judgment and affirm it as

modified.” TEX. R. APP. P. 43.2(b). We agree with the parties, sustain SRGV’s second

issue, and modify the trial court’s judgment to read that the cause is dismissed without

prejudice. See Belmonte, 2008 WL 2057903, at *5.

IV. CONCLUSION

We affirm the judgment of the trial court, as modified.

CLARISSA SILVA
Justice

Delivered and filed on the
30th day of April, 2026.

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