author: PER CURIAM:

text:
    Gerald MURILLO, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70653.
    Missouri Court of Appeals, Western District.
    June 15, 2010.

      Kent Denzel, Assistant Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division I: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and CYNTHIA L. MARTIN, Judges.
   Order

PER CURIAM:

The Circuit Court of Jackson County, the Honorable Peggy Stevens McGraw presiding, denied Appellant Gerald A. Murillo’s Rule 29.15 motion for post-conviction relief. Murillo appeals, arguing that the circuit court erred in finding that he had not proved his claim of ineffective assistance of counsel. We hold that the circuit court’s judgment is based on findings of fact that are not clearly erroneous, and accordingly we affirm. Rule 84.16(b)(2).


source: Caselaw Access Project

license: Public Domain

text:
    Eric Lee BLANCHARD, Appellant, v. Misty Jo BLANCHARD, Respondent.
    No. WD 70706.
    Missouri Court of Appeals, Western District.
    June 15, 2010.
    James P. Barton, for Appellant.
    William A. Shull, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Eric Lee Blanchard appeals from the circuit court’s denial of his motion to set aside judgment. After a thorough review of the record, we conclude that no error of law appears and an extended opinion would have no precedential value. A memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    Kevin POE, Respondent, v. CARMICHAEL SERVICE INC., Appellant.
    No. WD 71558.
    Missouri Court of Appeals, Western District.
    June 15, 2010.
    Stanley M. Thompson, for Appellant.
    Robb A. Denney, for Respondent.

      Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Carmichael Service, Inc. (“Appellant”) appeals from a judgment entered in the Circuit Court of Lafayette County in favor of Kevin Poe (“Respondent”) in an action filed by Respondent based on the revocation of his acceptance of a crane he purchased from Appellant. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    Marjorie GOACHER, Appellant, v. HEARTLAND REGIONAL MEDICAL CENTER, Respondent.
    No. WD 71163.
    Missouri Court of Appeals, Western District.
    June 15, 2010.
    James P. Cannon, for Appellant.
    Sean T. McGrevey, for Respondent.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Marjorie Goacher appeals from a judgment entered in favor of Heartland Regional Medical Center in a wrongful death action she filed following the death of her husband, William Goacher, at that hospital. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reason for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    Charles Eugene MITCHELL, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71099.
    Missouri Court of Appeals, Western District.
    June 15, 2010.

      Rosemary E. Percival, for appellant.
    Shaun J. Mackelprang and Richard A. Starnes, for respondent.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Charles Mitchell appeals from the trial court’s denial of his Rule 24.035 motion for post-conviction relief following an eviden-tiary hearing. Mitchell claims that the trial court erred in denying his Rule 24.035 motion because he did not enter his guilty plea knowingly, voluntarily, and intelligently in that he reasonably believed, based on plea counsel’s assurances, that he would not be charged as a prior and persistent offender. Mitchell contends that but for counsel’s assurances, he would have insisted on going to trial. We affirm. Rule 84.16(b).


text:
    Eddie D. HALL, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70913.
    Missouri Court of Appeals, Western District.
    June 15, 2010.
    Craig A. Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division I: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and CYNTHIA L. MARTIN, Judges.
   Order

PER CURIAM:

Eddie D. Hall appeals from the denial of his Rule 29.15 motion after an evidentiary hearing. A jury found Hall guilty of murder in the first degree for the murder of Bobby Roby and not guilty of murder in the second degree for the murder of Angela Ray. On appeal, Hall claims that the motion court erred in failing to grant his motion because Hall’s trial counsel was constitutionally ineffective. Specifically, Hall claims that his counsel was ineffective in that he failed to object to the State’s introduction of evidence that Hall’s co-defendant had already been found guilty of the homicides for which Hall was being charged and also failed to object to the State’s mention of that evidence in its argument. We affirm the motion court’s denial of Hall’s motion. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Cecil W. BUCKNER, Appellant.
    No. WD 70760.
    Missouri Court of Appeals, Western District.
    June 15, 2010.
    Matthew Ward, for Appellant.
    John M. Reeves, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Cecil Buckner appeals from his conviction of one count of class C felony driving while intoxicated, § 577.010. Buckner was sentenced to a term of five years imprisonment as a result of that conviction. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 30.25(b).


author: JOSEPH M. ELLIS, Judge.

text:
    Karen Lynn SAPP, Appellant, v. MISSOURI DEPARTMENT OF REVENUE, Respondent.
    No. WD 71564.
    Missouri Court of Appeals, Western District.
    June 15, 2010.
    Karen Lynn Sapp, Appellant pro-se.
    Jonathan H. Hale, for Respondent.
    Before Division Two: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   JOSEPH M. ELLIS, Judge.

Karen Lynn Sapp appeals from a judgment entered in the Circuit Court of Calla-way County upholding the suspension of her driver’s license by the Director of Revenue. For the following reasons, the appeal must be dismissed.

On February 7, 2009, at 1:12 a.m., a Missouri Highway Patrol trooper stopped Sapp after she failed to stop at a stop sign. After observing several indicia of intoxication, the trooper asked Sapp to perform multiple field sobriety tests, which she failed. After a preliminary breath test was positive, the trooper placed her under arrest and took her to the Fulton Police Department where a breathalyzer test showed that her blood alcohol content was .133%.

The Director subsequently suspended Sapp’s driver’s license. After that decision was upheld in an administrative hearing, Sapp filed a pro se petition for trial de novo in the circuit court. After hearing the case, the circuit court entered its judgment finding that Sapp’s testimony was not credible and that she had indeed been arrested upon probable cause that she had been operating a motor vehicle while intoxicated. Accordingly, the court upheld the Director’s decision to suspend her license.

In her sole point on appeal, again acting pro se, Sapp contends that the circuit court’s judgment was not supported by substantial evidence. In bringing this claim, Sapp has affirmatively chosen not to file a transcript of the proceedings before the circuit court in the record on appeal.

“Rule 81.12(a) requires an appellant to file a transcript and prepare a legal file so that the record contains all the evidence necessary for a determination of questions presented to the appellate court for a decision.” Powell v. Powell, 250 S.W.3d 831, 832 (Mo.App. W.D.2008) (internal quotation omitted). Without a transcript of the proceedings before the circuit court, this court has no way to know what testimony and evidence were before the court and, therefore, cannot review the sufficiency of the evidence to support the judgment. Id. “As a result, review by this court is impossible, and the claim of error must be dismissed.” Id. (internal quotation omitted). We do so reluctantly, as we prefer to decide cases on the merits, but we are compelled to dismiss because, without a copy of the transcript in the record on appeal, we are left with no way to review her claims.

The appeal is dismissed.

All concur.

      . Despite a courtesy letter from the Department of Revenue calling Sapp's attention to Rule 81.12’s requirement that the record on appeal include the transcript, Sapp stated in a subsequent letter sent to the Department of Revenue and this Court that she would be proceeding with a legal file containing only the legal file and exhibits and would not be filing a transcript.


author: FRANK G. CLEMENT, JR., J.,

text:
    DEJA VU OF NASHVILLE, INC. et al. v. The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY et al.
    Court of Appeals of Tennessee. Middle Section, at Nashville.
    Submitted on Briefs June 12, 2009.
    Oct. 12, 2009.
    Permission to Appeal Denied by Supreme Court April 23, 2010.
    See also, 274 F.3d 377, 466 F.3d 391.

      Bob Lynch, Nashville, Tennessee, and Bradley J. Shafer, Lansing, Michigan, for the appellants, Deja Vu of Nashville, Inc., d/b/a Deja Vu, Meroney Entertainment, Inc., d/b/a Ken’s Gold Club, D.F. Group, Inc. d/b/a Anthony’s Showplace, and Stephanie’s Cabaret of Tennessee, LLC d/b/a Stephanie’s Cabaret, Jane Doe I and Jane Doe II.
    Francis H. Young, Nashville, Tennessee, for the appellee, The Metropolitan Government of Nashville and Davidson County, et al.
   OPINION

FRANK G. CLEMENT, JR., J.,

delivered the opinion of the court,

in which ANDY D. BENNETT and RICHARD H. DINKINS, JJ., joined.

Appeal from the dismissal of Plaintiffs’ claims on a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss for failure to state a claim upon which relief can be granted. Plaintiffs, several sexually oriented businesses and two exotic dance entertainers, filed suit against the Metropolitan Government of Nashville and Davidson County and the Metropolitan Sexually Oriented Business Licensing Board challenging Chapter 6.54 of the Metropolitan Code of Laws, which governs the licensing and regulation of sexually oriented businesses. Plaintiffs alleged that the Ordinance was unconstitutional, both facially and as applied, under the Tennessee Constitution for, inter alia, violations of their rights to free speech, expression, privacy, association, equal protection, and due process. Two years after their first Motion to Dismiss was denied, Defendants filed a Renewed Motion to Dismiss, which the trial court granted. This appeal followed. We affirm the dismissal of Plaintiffs’ claims as Plaintiffs have asserted no factual allegations which support an “as applied” constitutional challenge to the Ordinance, nor have they alleged any basis for a facial challenge to the Ordinance other than vague, conclusory legal statements.

Chapter 6.54 of the Metropolitan Code of Laws, which pertains to the licensing and regulation of “sexually oriented” businesses, has been the subject of several challenges by various plaintiffs in state and federal courts. Chapter 6.54 (the “Ordinance”), which was originally enacted in 1997, has also undergone numerous revisions. The plethora of litigation and appeals challenging the Ordinance regarding the same or substantially similar issues prompted the Sixth Circuit Court of Appeals, in the court’s third opinion regarding challenges to the Ordinance, to quote the legendary Yogi Berra who said, “it’s ‘like deja vu all over again.’ ” Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Co., 466 F.3d 391 (6th Cir. 2006).

The present challenge to the Ordinance was initiated in the federal court by Deja Vu, Inc. and Meroney Entertainment, Inc., two of the plaintiffs in this action, along with two other corporations, two owner/operators, and two dancers. In the federal action, Plaintiffs sought to enjoin the enforcement of the Ordinance on the ground that it failed to provide prompt judicial review of licensing decisions by the Sexually Oriented Business Licensing Board. Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Co. (“Deja Vu I”), 274 F.3d 377, 386 (6th Cir.2001). A separate set of plaintiffs filed a separate action asserting the same grounds as the Deja Vu plaintiffs, as well as a claim that the civil disability provision of the Ordinance violated the First Amendment. Id. Thereafter, the Deja Vu plaintiffs then filed a second motion for a preliminary injunction asserting various constitutional challenges to the Ordinance. Id, Another injunction preventing the Ordinance’s enforcement was granted based upon the federal district court’s determination that the Ordinance’s definitions of “sexually oriented” and “sexually oriented theater,” the civil disabilities provision, the disclosure provision, and the fee amounts were unconstitutional. Id.

The Sixth Circuit Court of Appeals issued its first opinion regarding the Ordinance in 2001, affirming the district court’s findings that the definition of “sexually oriented” was unconstitutional under the First Amendment, that the definitions of “sexually oriented business/establishment” and “sexually oriented theater” were constitutional, and that the no touch/buffer zone provision satisfied the First Amendment. Id. at 403. The Sixth Circuit Court also held that the civil disabilities provision, the disclosure provision, and the fee amounts within the Ordinance were unconstitutional, and reversed the district court’s determination that the judicial review procedures satisfied the requirements under the First Amendment. Id. The case was then remanded to the district court with instructions that the injunction remain in effect until Metro satisfied the constitutional inadequacies. Id.

In April 2005, after the Ordinance was amended to comply with the ruling by the Sixth Circuit Court, the injunction was dissolved by the district court based upon the finding that the amended definition of “sexually oriented” was not overbroad and that it complied with the First Amendment. The district' court also found that the judicial review provisions as amended provided prompt judicial review, as required by the First Amendment. Thereafter, in December 2005, the injunction was lifted. Deja Vu III, 466 F.3d at 394.

The federal litigation continued, however, as the dissolution of the injunction was appealed to the Sixth Circuit. The Sixth Circuit Court of Appeals issued its third opinion in October 2006 affirming the district court’s finding that the constitutional problems with the Ordinance had been rectified and the dissolution of the injunction. Id. at 398. The Sixth Circuit also rejected the claim that the district court had improperly dismissed the plaintiffs’ complaint without a trial on the merits stating

[t]he district court’s memorandum granting Deja Vu’s preliminary injunction concluded that Metro enacted the ordinance “to promote the health, safety, morals and general welfare of the citizens of Metropolitan Nashville Davidson County,” which effectively mooted Deja Vu’s discovery motion. Second, and more fundamentally, Deja Vu is not entitled to discovery regarding secondary effects. We have followed the Supreme Court in deferring to local governments’ conclusions regarding whether and how their ordinances address adverse secondary effects of adult-oriented establishments. It is clear, for instance, that a local government does not need localized proof of adverse secondary effects in order to regulate adult establishments. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); DLS, Inc. v. City of Chattanooga, 107 F.3d 403, 411 (6th Cir.1997) (quoting Barnes v. Glen Theatre, Inc., 501 U.S. 560, 582-84, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (Souter, J., concurring in the judgment)). Similarly, all that is needed to justify a regulation is a reasonable belief that it will help ameliorate such secondary effects. Deja Vu of Cincinnati, L.L.C. v. Union Township Bd. of Trustees, 411 F.3d 777, 790 (6th Cir.2005) (en banc) (quoting Richland Bookmart, Inc. v. Nichols, 137 F.3d 435, 440 (6th Cir. 1998)). Deja Vu offers no authority entitling it to undermine this deference through discovery.

Id.

Litigation over the Ordinance continued, however, as the plaintiffs found it necessary to commence this action in the state court when the federal district court ruled that it would not consider the pendant claims that were based on alleged violations of Tennessee’s constitution. This action was filed in the Davidson County Circuit Court on January 25, 2006. The plaintiffs are several sexually oriented businesses, Deja Vu, Inc., Meroney Entertainment, Inc., and Stephanie’s Cabaret of Tennessee, LLC, as well as two unnamed exotic entertainers referred to as Jane Doe I and Jane Doe II (hereinafter “Plaintiffs”). The defendants in this action are the Metropolitan Government for Nashville and Davidson County and the Metropolitan Sexually Oriented Businesses Licensing Board (collectively referred to as “the Metropolitan Government”). In this action Plaintiffs challenge the constitutionality of Chapter 6.54 under the Tennessee Constitution, both facially and as applied. The complaint contains thirty-five separate paragraphs in which Plaintiffs allege various violations of freedom of speech, freedom of expression, freedom of association, due process, equal protection, the right to privacy, as well as asserting a regulatory “takings” claim and a claim that the ordinance violated state constitutional protections against unreasonable searches and seizures.

On January 31, 2006, the Metropolitan Government filed a motion to dismiss, which the trial court denied. An eviden-tiary hearing was held on February 14, 2006, to address Plaintiffs’ request for a temporary injunction, which was denied. The case was dormant for the next two years. On February 8, 2008, the Metropolitan Government filed a renewed motion to dismiss alleging, under Tenn. R. Civ. P. 12.02(6), that Plaintiffs failed to state a claim upon which relief could be granted. In its renewed motion, the Metropolitan Government alleged that recent opinions issued by the Tennessee courts demonstrated that there was no basis for Plaintiffs’ claims. The trial court granted the motion to dismiss on March 18, 2008 and dismissed all causes of actions asserted by Plaintiffs. In its Memorandum and Opinion, the trial court found that the claims asserted by Plaintiffs were merely a “relabeling” of their freedom of speech and freedom of expression claims, which were litigated in the federal courts. The trial court found that the Tennessee Constitution provided no greater protection for regulations on adult entertainment and adult-oriented establishments, and, therefore, there was no basis for Plaintiffs’ claims under state law. Plaintiffs filed a timely appeal.

Standard of Review

The purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to determine whether the pleadings state a claim upon which relief can be granted. A Rule 12 motion only challenges the legal sufficiency of the complaint. It does not challenge the strength of the plaintiff’s proof. See Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A, 986 S.W.2d 550, 554 (Tenn.1999). In reviewing a motion to dismiss, we must liberally construe the complaint, presuming all factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences. See Pursell v. First American National Bank, 937 S.W.2d 838, 840 (Tenn.1996); see also Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696-97 (Tenn.2002). Thus, a complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his or her claim that would warrant relief, (emphasis added) See Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.1999); Fuerst v. Methodist Hospital South, 566 S.W.2d 847, 848 (Tenn.1978). Making such a determination is a question of law. Our review of a trial court’s determinations on issues of law is de novo, with no presumption of correctness. Frye v. Blue Ridge Neuroscience Center, P. C., 70 S.W.3d 710, 713 (Tenn.2002); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.1997).

Analysis

In the complaint Plaintiffs allege that the Ordinance, as amended, violates Article I, Sections 1, 2, 3, 7, 8, 17, 19, 21 and 23, and Article XI, Sections 8 and 16 of the Tennessee Constitution, both facially and as applied. The complaint lists thirty-five reasons, i.e., “causes of action,” in which the Ordinance is unconstitutional.

The “as Applied” Challenges

We have determined that Plaintiffs failed to state any “as applied” constitutional claims upon which relief may be granted because Plaintiffs assert no facts to support their claims.

Tennessee Rule of Civil Procedure 8.01 requires that a pleading which sets forth a claim for relief “shall contain: (1) a short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.” Further, as it pertains to statutes, ordinances and regulations, Tenn. R. Civ. P. 8.05, which is entitled “Pleading to Be Concise and Direct — Statutes, Ordinances and Regulations — Consistency,” requires:

(1) Each averment of a pleading shall be simple, concise and direct. No technical forms of pleading or motions are required. Every pleading stating a claim or defense relying upon the violation of a statute shall, in a separate count or paragraph, either specifically refer to the statute or state all of the facts necessary to constitute such breach so that the other party can be duly apprised of the statutory violation charged. The substance of any ordinance or regulation relied upon for claim or defense shall be stated in a separate count or paragraph and the ordinance or regulation shall be clearly identified. The manner in which violation of any statute, ordinance or regulation is claimed shall be set forth.

Tenn. R. Civ. P. 8.05 (emphasis added).

The following are examples of Plaintiffs’ “as applied” challenges to the Ordinance as stated in the Complaint:

o. the Ordinance, as applied, violates the due process clauses of the Tennessee Constitution, in that Metro has enforced the provisions of the Ordinance in an unequal fashion, with certain businesses targeted by the police and other businesses being left alone, r. The Ordinance violates the Tennessee Constitution in that its provisions effectively amount to a taking of property without just compensation.

As each clearly reveals, the claims are devoid of any facts upon which to determine whether an “as applied” challenge in fact exists. As opposed to facts, Plaintiffs merely assert broad and vague accusations and legal conclusions.

“[A] plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Additionally, the Court emphasized that even though a complaint need not contain “detailed” factual allegations, its “[fjactual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.”

Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548-549 (6th Cir. Ohio 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (internal citations omitted) (addressing the requirements necessary to withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)); see also Polite v. Metropolitan Development and Housing Agency, No. M2007-02472-COA-R3-CV, 2008 WL 3982915, at ⅜3 (Tenn.Ct.App. Aug. 26, 2008) (“Alleging mere conclusions, such as the board exceeded its authority, failed to follow the applicable statutes, or violated the plaintiffs legal rights, is not sufficient to state a claim for which relief can be granted.”).

The United States Supreme Court’s decision in Bell Atlantic Corporation v. Twombly, further noted the relevance of the pleading requirements set forth in Fed.R.Civ.P. 8 when examining whether a complaint stated a claim upon which relief could be granted:

While, for most types of cases, the Federal Rules eliminated the cumbersome requirement that a claimant “set out in detail the facts upon which he bases his claim,” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (emphasis added), Rule 8(a)(2) still requires a “showing,” rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only “fair notice” of the nature of the claim, but also “grounds” on which the claim rests. See 5 Wright & Miller § 1202, at 94, 95 (Rule 8(a) “contemplate[s] the statement of circumstances, occurrences, and events in support of the claim presented” and does not authorize a pleader’s “bare averment that he wants relief and is entitled to it”).

Twombly, 550 U.S. at 555 n. 3, 127 S.Ct. 1955; see also Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”).

In their complaint, Plaintiffs provide no facts to support their “as applied” claims; instead they provide little more than aver-ments showing that they want relief and that they believe they are entitled to relief. They also fail to satisfy the minimal pleading requirements by not citing to specific provisions of the Ordinance that allegedly violate the Tennessee Constitution as applied to Plaintiffs. Because of these deficiencies, we find that Plaintiffs have failed to state any “as applied” constitutional claims upon which relief can be granted. Therefore, we affirm the trial court’s dismissal of these claims under Tenn. R. Civ. P. 12.02(6).

The “facial” Challenges

Plaintiffs generally and repeatedly assert that the Ordinance violates the Tennessee Constitution on its face. When making a facial challenge to a statute or ordinance, a plaintiff must demonstrate that there are “no set of circumstances ... under which the act would be valid.” Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 525 (Tenn.1993) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). In stating their “reasons” for constitutional violations, Plaintiffs fail to cite to the specific provisions of the Ordinance they contend are invalid on their face. For example, one paragraph states that “[t]he Ordinance violates the privacy and liberty interests of the citizens of Metro in violation of the Tennessee Constitution.” What Plaintiffs failed to identify is which specific section or subsection they are referring to.

Another example is Plaintiffs’ allegation which states that

the Ordinance is so vague in its definitions and undefined terms as to what is included and what is excluded so that the definition and terms are too nebulous, too lacking in definite terms and too vague to inform men of common intelligence what is excluded and what is exempted from the penalties and proscriptions of the Ordinance and is void under the equal protection, due process and free expression provisions of the Tennessee Constitution.

Ironically, we find Plaintiffs’ assertion too vague and nebulous to support a claim upon which relief can be granted.

It is significant to note that “the Ordinance” contains, inter alia, thirty-five definitions. Some of these definitions have been challenged in the federal courts, some have been challenged in Tennessee courts, and several of the definitions, as amended, have survived constitutional challenges. Plaintiffs failed to identify which of the thirty-five definitions they contend to be facially invalid under the Tennessee Constitution.

As we held in the previous section, the pleading requirements set forth in Tenn. R. Civ. P. 8.05 have not been met and Plaintiffs have failed to demonstrate in their facial challenge to “the Ordinance” that there are “no set of circumstances” under which the Ordinance would be valid. See Davis-Kidd Booksellers, Inc., 866 S.W.2d at 525; see also Salerno, 481 U.S. at 745,107 S.Ct. 2095. Clearly, such is not the case, as several provisions have been held valid by this court. For example, in Entertainer 118 and Meroney Entertainment, Inc. d/b/a Ken’s Gold Club v. Metropolitan Sexually Oriented Business Licensing Board, No. M2008-01994-COA-R3-CV, 2009 WL 2486195, at *6 (Tenn.Ct. App. Aug. 14, 2009), the definition of “sexually oriented entertainment” contained within the Ordinance was challenged and we determined that it was not unconstitutionally vague. Id.

Accordingly, Plaintiffs have failed to state a claim upon which relief concerning their facial challenges to the constitutionality of the Ordinance can be granted.

In Conclusion

We affirm the dismissal of Plaintiffs’ claims under Tenn. R. Civ. P. 12.02(6) and this matter is remanded for further proceedings consistent with this opinion. Costs of appeal are assessed against Appellants/Plaintiffs.

      . A preliminary injunction was issued based upon the failure of the Ordinance to provide prompt judicial review. After the Metropolitan Government subsequently amended the Ordinance, the injunction was dissolved. "Deja Vu I," 274 F.3d at 386.

      . The plaintiffs preserved the right to assert these constitutional claims. "Deja Vu I," 274 F.3d at 386.

      .Prior to the district court's dissolution of the permanent injunction, the Sixth Circuit heard oral arguments in regards to attorney’s fees and issued an opinion, known as Deja Vu II, pertaining solely to attorney’s fees. See Deja Vu v. Metro. Gov’t of Nashville & Davidson Co. (Deja Vu II), 421 F.3d 417 (6th Cir.2005).

      . The Court was quoting YOGI BERRA, available at http:llwww.quotationspage.com/quote/ 27219.html and JOHN FOGERTY, Deja Vu (All Over Again), on DEJA VU ALL OVER AGAIN (Geffen Records 2004). Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Co., 466 F.3d 391 (6th Cir.2006).

      .The federal complaint had alleged violations of both the U.S. and Tennessee Constitutions, however, the federal courts declined to exercise supplemental jurisdiction over any state law claims.

      . Plaintiffs also sought a restraining order and temporary injunction against the enforcement of the Ordinance.

      . A motion for interlocutory appeal was granted by the trial court, which the Tennessee Supreme Court denied on November 20, 2006.

      . The trial court issued an order on August 31, 2007 dismissing the action for failure to prosecute; however, following a motion by Plaintiffs to set aside the dismissal, the action was reinstated.

      . Fed.R.Civ.P. Rule 12(b)(6), like our rule, provides for dismissal upon “the failure to state a claim upon which relief can be granted."

      . The United States Supreme Court opinion in Ashcroft v. Iqbal has not yet been officially published; thus, the citation is limited to the Supreme Court Reporter.

      . We also note that claims by some of the plaintiffs would be barred from further challenge on the grounds of res judicata or collateral estoppel. In Entertainer 118, 2009 WL 2486195, at *6 n. 19 (Tenn.Ct.App. Aug. 14, 2009), we found that Meroney Entertainment, referred to as Ken's Gold Club, was barred by res judicata from asserting certain challenges as it was a party to the federal litigation.


author: PER CURIAM.

text:
    In re ENSCO OFFSHORE INTERNATIONAL COMPANY, ENSCO International Incorporated and ENSCO Offshore Company, Individually and as Successor-in-Interest of Chiles Offshore, Inc., Relators.
    No. 09-0317.
    Supreme Court of Texas.
    May 7, 2010.

      Robert L. Klawetter, Christina K. Scho-vajsa, Eastman Watson Dale & Forney, Houston, TX, and Michael K. Hurst, Gru-ber Hurst Johansen & Hail LLP, Dallas, TX, for Relators.
    Eric D. Pearson and James Craig Orr Jr., Heygood Orr Reyes Pearson & Barto-lomei, Dallas, for Real party in Interest.
   PER CURIAM.

The plaintiff in this case filed suit in Dallas County against corporate owners of a drilling rig on which an Australian citizen employed by an Australian company was killed. At the time of the incident, the rig was in the territorial waters of Singapore, and the incident was investigated by Singaporean authorities. At issue in this mandamus proceeding is whether the trial court abused its discretion by failing to dismiss the case on forum non conveniens grounds. We hold that it did and conditionally grant relief.

Paul Merema was fatally injured while working aboard the ENSCO 104, a Liberian-flagged drilling rig docked at a shipyard facility in the territorial waters of Singapore. Paul was a citizen of Australia and was employed by Total Marine Services (TMS) of Western Australia. His employment contract with TMS was governed by the law of Western Australia. ENSCO Offshore International Inc. contracted with TMS for TMS to provide personnel for the drilling rig. The contract with TMS specified that the laws of Western Australia applied and all matters between the parties were to be referred to arbitration in Perth, Western Australia. Paul’s death was investigated by Singaporean authorities, including the Ministry of Manpower, the Police Coast Guard, the State Coroner, and the Ministry of Health. Singapore Test Services, located in Singapore, participated in analysis and testing of a valve assembly involved in the incident.

Paul’s wife, Margaret, filed suit in Western Australia against TMS. She then filed suit individually and on behalf of Paul’s estate (collectively, Merema) in Dallas County. In the Dallas suit, she named as defendants the owner of the ENSCO 104, ENSCO Offshore International Co., EN-SCO Offshore Co., and its parent company, ENSCO International Inc. (collectively, ENSCO). All the defendants have corporate offices in Dallas. ENSCO filed a motion to dismiss for forum non conve-niens, asserting that no claimed act of negligence occurred in Texas and requesting the trial court to dismiss the action in favor of the jurisdictions of Singapore or Australia. Merema responded that the negligent acts of ENSCO emanated from Dallas and that most of the statutory forum non conveniens factors supported keeping the suit in Texas. The trial court denied ENSCO’s motion.

The court of appeals denied mandamus relief. 312S.W.3d42. ENSCO now seeks mandamus relief here, asserting the trial court abused its discretion because proper application of the forum non conveniens statute requires dismissal.

An appeal is not adequate when a motion to dismiss on forum non conveniens grounds is erroneously denied, so mandamus relief is available, if it is otherwise warranted. In re Gen. Elec. Co., 271 S.W.3d 681, 685 (Tex.2008). We review a trial court’s refusal to dismiss on forum non conveniens grounds for abuse of discretion. In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 679 (Tex.2007).

Factors a trial court must consider when ruling on a motion to dismiss for forum non conveniens are specified by statute:

If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties a claim or action to which this section applies would be more properly heard in a forum outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action. In determining whether to grant a motion to stay or dismiss an action under the doctrine of forum non conveniens, the court shall consider whether:
(1) an alternate forum exists in which the claim or action may be tried;
(2) the alternate forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;
(4) the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiffs claim;
(5) the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state; and
(6) the stay or dismissal would not result in unreasonable duplication or proliferation of litigation.

Tex. Civ. Prac. & Rem.Code § 71.051(b). The word “shall” in the statute “requires dismissal of the claim or action if the statutory factors weigh in favor of the claim or action being more properly heard in a forum outside Texas.” In re Gen. Elec., 271 S.W.3d at 686. We will address the statutory factors in order.

ENSCO asserts that either Australia or Singapore provides an adequate forum as required by the first two factors. See Tex. Civ. PRAC. & Rem.Code § 71.051(b)(l)-(2). Merema does not claim that either of those forums is inadequate. Rather, she claims that ENSCO has not identified a single alternate forum and there is no single forum that provides a more practical venue than the one she chose. She claims ENSCO has amalgamated the forums of Singapore and Australia into one with statements such as “[m]ost of the key documents herein are located in Australia or Singapore,” which obscures the problems with trying the case in either forum.

An alternate forum is one where the defendant is amenable to process. In re Gen. Elec., 271 S.W.3d at 688 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). A forum is inadequate if the remedies it offers are so unsatisfactory they really comprise no remedy at all. Id. Merema does not disagree with EN-SCO’s assertions that the defendants are amenable to process in either Singapore or Australia, nor does she dispute that each provides adequate remedies. Rather, she argues, in substance, that ENSCO should have explained the trial procedures of a particular location to demonstrate it was an adequate alternate forum. We disagree because such a showing is not necessary. Comparative analyses of procedures in different forums is not generally appropriate in forum non conveniens analysis: “Comparison of the ‘rights, remedies, and procedures’ available in each forum would require complex exercises in comparative law that the forum non con-veniens doctrine is designed to help courts avoid.” Id. (quoting Piper Aircraft, 454 U.S. at 251, 102 S.Ct. 252). Comparative analyses are relevant to a court’s forum non conveniens decision only if a potential transfer would effectively result in no available remedy at all. See id. Merema does not contend that is the situation here.

Merema supports her position by citing to In re Air Crash at Taipei Taiwan Multidistrict Litig., 153 Fed.Appx. 993 (9th Cir.2005). There, the Ninth Circuit reversed a trial court’s dismissal of a case on forum non conveniens grounds because the trial court considered multiple alternate forums rather than comparing the chosen forum with a single alternative. Id. at 995-96. The citation is inapposite. Here, ENSCO separately detailed the causes of action and remedies available to Merema in both Singapore and Australia, listed the crew members of the ENSCO 104 at the time of the incident along with their nationalities, listed other potential witnesses and their locations, and noted the location of certain documentary and physical evidence. The common-law doctrine of forum non conveniens “presupposes at least two forums in which the defendant is amenable to process.” Gulf Oil Carp. v. Gilbert, 330 U.S. 501, 506-07, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) (emphasis added); see also Yoroshii Invs. (Mauritius) Pte. Ltd. v. BP Int’l Ltd., 179 S.W.3d 639, 643 (Tex.App.-El Paso 2005, pet. denied); Sarieddine v. Moussa, 820 S.W.2d 837, 841 (Tex.App.-Dallas 1991, writ denied). Nothing in Section 71.051 indicates the Legislature contemplated the denial of forum non conveniens motions because multiple adequate alternate forums existed, or that a defendant should be required to focus on only one alternate forum to the exclusion of other forums. See In re Pirelli, 247 S.W.3d at 677 (noting the presumption that the Legislature enacts statutes with awareness of existing law and presuming the Legislature was aware of the Gulf Oil test). The first two statutory factors weigh in favor of granting ENSCO’s motion.

The third factor under Section 71.051 is whether maintaining the claim in Texas would work a substantial injustice to the moving party. Tex. Civ. Prac. & Rem. Code § 71.051(b)(3). ENSCO asserts that an analysis of the public and private interest factors demonstrates that maintaining the claim in Texas will cause it substantial injustice. ENSCO argues, and we agree, as discussed below, that the lack of compulsory process in Texas for reaching the great majority of witnesses would be substantially unjust. See In re Gen. Elec., 271 S.W.3d at 689-90. Next, ENSCO asserts a substantial injustice will result because it has a suit pending against TMS in Western Australia for indemnity under their contract. ENSCO argues that TMS is not subject to the jurisdiction of the Texas trial court and, therefore, the Australian suit can neither be consolidated with this one nor can common issues be determined in Texas litigation. While it is possible that a defendant may seek indemnity or contribution from a foreign party after being found liable, it “would be far more convenient, however, to resolve all claims in one trial.” Piper Aircraft Co., 454 U.S. at 259, 102 S.Ct. 252. This factor weighs in favor of granting ENSCO’s motion.

The fourth statutory factor is whether the alternate forum can exercise jurisdiction over all the defendants. Tex. Civ. Prac. & Rem.Code § 71.051(b)(4). All the defendants have agreed to submit to jurisdiction in either Singapore or Australia, and Merema does not argue that either forum could not exercise jurisdiction over all of them. This factor also weighs in ENSCO’s favor.

The fifth factor requires balancing public and private interest factors. Id. § 71.051(b)(5). A consideration in this balancing is the extent to which Paul’s death resulted from acts or omissions that occurred in Texas. Id. Private interest considerations include ease of access to proof, availability and cost of compulsory process, and other practical problems that make trial easy, expeditious, and inexpensive. In re Gen. Elec., 271 S.W.3d at 691 (citing Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839). ENSCO points out that in this case relevant documents and potential witnesses are located around the world. For example, the investigating officials and employees of the shipyard are in Singapore. Paul’s family, a psychologist who provided services after the incident, and TMS and its employees are located in Australia. The ENSCO 104 rig manager at the time of the incident is now in India. Of the twenty-nine men assigned to work on the ENSCO 104 at the time of the incident, twenty-one were TMS employees and all but two of the men on duty at the time of the incident were citizens of Australia or New Zealand, as were three of the four men who witnessed the incident. Merema argues that nine of the twenty-nine men assigned to the ENSCO 104 were United States citizens, including four Texas residents. However, the actual locations of most of those men were unknown. Only two were still employed by ENSCO. The last known address for one was in Mississippi. Even if some witnesses are located in the United States, the fact remains that compulsory process is unavailable for the vast majority of witnesses. See Tex.R. Civ. P. 176.3. Similarly, although Merema asserts that copies of documents located in Australia and Singapore can be shipped or sent by email, that fact does not cure the problems and difficulties posed by the lack of compulsory process to secure production of the documents and other evidence. In re Gen. Elec., 271 S.W.3d at 691.

Aside from the fact that compulsory process is unavailable to compel the majority of witnesses to appear in Dallas County or to require production of documents, the practical problems that make trial easy, expeditious, and inexpensive must be considered. Id. (citing Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839). The physical evidence is in storage in Singapore and onboard the ENSCO 104, which was operating off the shores of Malaysia when the trial court rendered its decision and off the shores of Australia when ENSCO filed its brief. This evidence is under ENSCO’s control, but ENSCO presented evidence that the cost of airfare from Singapore or Australia to Dallas was approximately five times the cost of airfare between Australia and Singapore. Travel time between Australia and Singapore was five hours compared to over twenty hours for travel between Australia or Singapore and Dallas. Merema argues that because witnesses are scattered around the globe, there will be inconvenience no matter where the suit is tried, and that is true. But clearly the great majority of witnesses and most of the evidence remain in Australia and Singapore. The cost, time, and scheduling difficulties to obtain evidence and present witness testimony would be far greater if the case were tried in Texas.

Another consideration in the fifth factor is the extent to which Paul’s death resulted from acts or omissions that occurred in this state. Tex. Civ. Prac. & Rem.Code § 71.051(b)(5). Merema asserts that she need not prove that Paul’s death resulted from acts or omissions occurring in Texas by a preponderance of the evidence, but that she need only make a prima facie showing that it did so. She claims her burden was fulfilled by evidence that actions and inactions of ENSCO corporate management led in part to Paul’s death. Merema relies on a statement in a report produced by TMS entitled “Human Factors Investigation into the fatality that occurred on board the jack-up rig ENSCO 10k on 23 April 2005.” Under the “Findings” section was a subsection entitled “Personal and Team Safety” that stated,

[Sjafety — on an individual and work team level — was taken very seriously and professionally by personnel working on the rig.... Several persons commented that if safety system practices were not been [sic] performed on board, failure to comply with them was ultimately because of a lack of commitment from senior rig management and, possibly, ENSCO shore management. Several persons suggested that commercial imperative was perceived to be interfering with safety management.

We disagree with Merema’s premise as to her burden of proof. The forum non conveniens statute does not place the burden of proof on either party. To the extent evidence is necessary to support a party’s position, the trial court must base its decision on the greater weight of the evidence. See In re Gen. Elec., 271 S.W.3d at 687. Here, Merema has not identified any corporate policy linked to Paul’s death, and the report on which she relies states that if safety practices were not being performed, failure to comply was possibly due to a lack of commitment from ENSCO shore management. ENSCO presented uncontroverted evidence that persons addressed by the report — rig management and shore management — were employed by a separate corporation located in Singapore and land-based personnel were based in Singapore and Australia. Accordingly, the report is no evidence that Paul’s death resulted from an act or omission that occurred in Texas.

The public interest factors to consider in determining the fifth factor include administrative difficulties related to court congestion, imposition of jury duty on citizens who have no relation to the litigation, local interest in having localized controversies decided at home, and trying the case in a forum that is at home with the law that governs the case. Id. at 691. Merema asserts that because this case involves the actions of Texas parties, the people of Texas have an interest in resolution of the issues. But as previously noted, Merema did not offer evidence that the ENSCO defendants’ actions or omissions in Texas contributed to Paul’s death. Nor did she identify any other Texans who have an interest in the case. The case involves an injury that happened in Singapore’s territorial waters on a Liberian-flagged vessel to an Australian citizen employed by an Australian company. As we said in In re Pirelli Tire, “[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.” 247 S.W.3d at 676. Further, the fact that the trial court has jurisdiction over the defendants because their offices are in Dallas is a separate issue from whether the case should be dismissed on forum non conveniens grounds. Id. at 675.

Another consideration in determining the fifth statutory factor is whether Texas law will govern the case. In re Gen. Elec., 271 S.W.3d at 691. ENSCO and Merema disagree regarding what law will govern. ENSCO asserts that Mere-ma’s claims are governed by the law of Australia or Singapore because those forums have the most significant relationship to the underlying incident. See Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex.2002). Merema counters that if the suit is maintained in Texas, the trial court will apply Texas law or the federal Death on the High Seas Act. See 46 U.S.C. § 30301. But Merema does not explain why Texas law would apply. The applicable law is determined in Texas by the Restatement’s “most significant relationship” test. Hughes, 18 S.W.3d at 205 (Tex.2000) (citing Restatement (Second) of Conflict of Laws §§ 6, 145 (1971)). The factors to consider in determining the applicable law for a tort case such as this are (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the residence, nationality, and place of business of the parties; and (4) the place where the relationship, if any, between the parties is centered. Id. at 205 n. 1 (citing Restatement (Second) of Conflict of Laws § 145(2) (1971)); see also Tex. Civ. Prac. & Rem.Code § 71.031(c) (providing that in an action for the death caused by actions outside the state, the court shall apply the rules of substantive law that are “appropriate under the facts of the case”). There is evidence of only one of these factors that points to Texas: the residence, nationality, and place of business of ENSCO. And if Merema’s claim falls under the federal Death on the High Seas Act, a similar analysis applicable to maritime cases is required to determine whether foreign law applies. Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 307-10, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970); Vaz Borralho v. Keydril Co., 696 F.2d 379, 384 n. 6 (5th Cir.1983). Even assuming Texas law applies, however, all other public interest factors favor dismissal of the case. See Piper Aircraft Co., 454 U.S. at 260, 102 S.Ct. 252. We conclude that the fifth statutory factor weighs in favor of granting ENSCO’s motion.

We next consider the sixth factor: whether dismissal of this suit would result in unreasonable duplication or proliferation of litigation. Tex. Civ. Prac. & Rem.Code § 71.051(b)(6). Merema does not argue that dismissal of this case will have such a result. And as ENSCO points out, if this case is dismissed, it may result in consolidation of this claim with other claims already filed in Australia, thus reducing the amount of litigation. This last factor also weighs in ENSCO’s favor.

The trial court stated at the forum non conveniens hearing “[w]hile I do think all the factors weigh in favor of a different forum probably in Australia, I don’t think that they weigh so heavily that I’ve got to dismiss this case.” Merema asserts, citing several cases, that the trial court did not abuse its discretion because the trial court correctly found that it should only disturb a plaintiffs choice of forum if the balance of factors strongly favors the defendant, which they do not. See Sarieddine, 820 S.W.2d at 844 (“The doctrine of forum non conveniens should be exercised only in those cases where the balance of factors so strongly favors the defendant that, in the interest of justice, the case should be tried in another forum.”); see also Signature Mgmt. Team, LLC v. Quixtar, Inc., 281 S.W.3d 666, 675 (Tex.App.-Dallas 2009, pet. filed) (“Quixtar’s burden was to show that the Gulf Oil factors in their totality strongly favor dismissal.”); Adams v. ESC Med. Sys., Inc., 161 S.W.3d 49, 50 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (“Unless the balance of factors strongly favors the defendant, the plaintiffs choice of forum should rarely be disturbed.”). We disagree. The cases relied on by Merema were decided on common-law forum non conveniens grounds. The forum non conveniens statute does not contain similar requirements. See Tex. Civ. Prac. & Rem.Code § 71.051. “The Legislature ... by use of the word ‘shall,’ requires dismissal of the claim or action if the statutory factors weigh in favor of the claim or action being more properly heard in a forum outside Texas.” In re Gen. Elec., 271 S.W.3d at 686. The statute’s language simply does not require that the Section 71.051(b) factors “strongly” favor staying or dismissing the suit. Here, all the factors weigh in favor of Merema’s claim being heard in a forum outside Texas, and the statute required that the trial court grant the motion and decline to exercise jurisdiction.

We conclude that the trial court’s denial of ENSCO’s motion to dismiss the suit on forum non conveniens grounds was an abuse of discretion. Accordingly, we conditionally grant the petition for writ of mandamus. The trial court is directed to grant ENSCO’s motion and dismiss the case. The writ will issue only if the trial court fails to do so.

      . The suit also involves a claim by ENSCO for insurance coverage.

      . ENSCO objected that the report is unauthenticated, but it did not obtain a ruling on the objection. See Tex.R.App P. 33.1(a)(2).

      . We do not address whether the statute requires dismissing or staying the suit if the evidence proves only that some, as opposed to all, the Section 71.051(b) factors weigh in favor of the trial court’s declining to exercise jurisdiction.