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CAUSE NO. 2018-26705
XTREME CRANE & RIGGING, LLC § IN THE DISTRICT COURT
§
vs. § 269" JUDICIAL DISTRICT
§
CENTRAL RIG SERVICES, LLC dba §
D&K ENERGY SERVICES and also §
dba PETROTEX, and §
PATTERSON-UTI DRILLING §
COMPANY, LLC § HARRIS COUNTY, TEXAS
MEMORANDUM OF LAW IN SUPPORT OF THE
MOTION TO TRANSFER VENUE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant, Central Rig Services, LLC dba D&K Energy Services and also
dba Petrotex filing this Memorandum of Law in Support of the Motion to Transfer Venue and for
cause will show:
I.
FACTS
1. Defendant, Central Rig Services, LLC dba D&K Energy Services and also dba Petrotex has
absolutely no connection to Harris County. None of the causes of action occurred, arosed or part of
any action in Harris County. This suit is for foreclosure of liens filed pursuant to the Texas Property
Code, The Plaintiff chose to file suit in this manner.
2. In fact, in its petition, the Plaintiff included a specific Paragraph entitled “Suit for
Foreclosure of Liens related to Mineral Activities” those paragraphs include numbers 13 and 14.
3. Additionally, Plaintiff invokes Property Code Chapter 56. Defendant answered the suit that
Property Code Chapter 56 was not complied with in this case. Thus, a major issue is the validity of
the liens in this case. Liens the Plaintiff seeks to foreclose. Plaintiff did not have to seek foreclosure
of liens in this case, but did. They could have easily sued for breach of contract, suit of an account,
8653-038 Memorandum of Law in Support of TV. wpd 1etc. but chose freely to sue to foreclose on their liens. When Plaintiff chose this course of action,
venue was determined. The Plaintiff has no one to blame regarding venue other than themselves.
4, Furthermore, the petition attaches several liens which the Plaintiff filed in Karnes, County,
Frio County and Reeves County.
5. Notably, none of the liens were filed in Harris County. Only Plaintiff's attorney is in Harris
County. That is the extent of Harris County’s connection to this case.
6. Plaintiff paid for the liens to be filed in the Real Property Deed Records of the counties other
than Harris County. Most importantly, Plaintiff requested foreclosure of the liens.
7. It is undisputed that sone of the events giving rise to this cause of action occurred in Harris
County.
8. The Plaintiff's “artful pleadings” are not enough to keep venue in Harris County.
Il.
ARGUMENT AND AUTHORITY
Section 15.011 of the Texas Civil Practice and Remedies Code provides:
Actions for recovery of real property or an estate or interest in real Property, for
Partition of real property, to remove encumbrances from the title to real Property,
Sor recovery of damages to real property or to quiet title to real property shall be
brought in the county in which all or part of the property is located. Tex. Civ.
Prac. & Rem. Code Aun. § 15.011.
A court considers the true nature of the dispute in making the venue determination under §
15.011, See Renwar Oil Corp. v. Lancaster, 276 8.W.2d 774 (Tex. 1955). Yzaguirre vy. KCS Res.,
53 S.W.3d 368 (Tex. 2001); In Renwar, applying the predecessor venue statute, the Supreme Court
explains that the nature of the suit is determined from the facts alleged in the Plaintiff's Original
Petition, the rights asserted and the relief sought. Renwar Oil Corp., 276 S.W.2d at 775. The court’s
look to the “heart of the controversy” and “the controlling issues”. Id at 776.
8683-038 Mernorandum af Law in Support of TV wpd 2In Yzaguirre, the Court considered the “substance of the dispute” under the applicable
version of the statute. Yzaguirre, 53 $,.W.3d at 371. After determining that the ownership of the
property was not in dispute, and the substance of dispute concerned obligations owed under the
lease, the Supreme Court held that § /5.0// did not apply to that case. See Jd,
Recently, the Supreme Court noted that the statute has been changed over time to become
more inclusive regarding types of real property suits subject to mandatory venue. Jn re Applied
Chem. Magnesis Corp., 2016 S.W.3rd 118. In Applied Chemical, the Plaintiff filed a declaratory
judgment seeking to clarify the rights and remedies of the parties under a letter agreement. Jd at 116.
The Supreme Court nevertheless determined that the essence of this dispute was whether Applied
Chemical had the right to mine marble on Aggregate’s land, and therefore ruled that the mandatory
venue statute required that the declaratory judgment action be brought in the county where the land
was located.
The essence of this suit is whether or not Extreme can foreclose on its liens pursuant to the
Texas Property Code. This case has mandatory venue written all over it. Extreme is simply
using” artful pleadings” to circumvent the mandatory venue statutes.
Extreme Crane & Rigging, LLC points out that this case involves personal property and that
§ 15.011 does not encompass suits for personal property but see Jn re Kerr, 293 S.W.3d 353 (Tex.
App.-Beaumont 2009) (“artful pleadings” does not circumvent mandatory venue statutes).
Mandatory venue provisions may not be avoided merely by artful pleading. /d. A court is
required to determine the venue of the suit based on the facts existing at the time the cause of action
that is the basis of the suit occurred. Tex. Civ. Prac. Rem, Code Ann. § 15.006 (Vernon 2002).
Here, Plaintiff has plead compliance with the Property Code to establish a lien. Defendant
has plead non-compliance with the Property Code. Plaintiff seeks foreclosure of its liens,
1865-038 Memorandum of Law in Support of TV wpd 3Because this is a suit to foreclose on liens related to mineral activity and because the Texas
Property Code has been specifically invoked in this case both in the Plaintiff's petition as well as the
Defendant’s answer the mandatory venue statute applies and the Defendant’s Motion to Transfer
Venue should be granted.
Ill.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court grant its
Motion to Transfer Venue and such other and further relief to which it may show itself justly
entitled,
Respectfully submitted,
HAYDEN & CUNNINGHAM, PLLC
Attorneys at Law
7750 Broadway
San Antonio, Texas 78209
(210) 826-7750 Telephone
(210) 822-0916 Facsimile
DAVID L. CUNNINGHAM
State Bar No. 00787314
deunningham@7750law.com
Attorney for Central Rig Services,
LLC
8653-038 Memorandum of Law in Support of TV pd 4CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been forwarded
by via email on this jay of September, 2018 as follows:
Joe House Via Email: joe@houseperron.com
House Perron & House, PLLC
2211 Norfolk Street, Ste. 1150
Houston, Texas 77098
Frank A, Piazza, Jr. Via Email: fpiaaza@brothers-law.com
Two Memorial City Plaza
820 Gessner, Suite 1075
Houston, Texas 77024
VID L. CUNNINGHAM
5653-038 Memorandum of Law in Support of TV wp 5
Preview
CAUSE NO. 2018-26705 XTREME CRANE & RIGGING, LLC § IN THE DISTRICT COURT § vs. § 269" JUDICIAL DISTRICT § CENTRAL RIG SERVICES, LLC dba § D&K ENERGY SERVICES and also § dba PETROTEX, and § PATTERSON-UTI DRILLING § COMPANY, LLC § HARRIS COUNTY, TEXAS MEMORANDUM OF LAW IN SUPPORT OF THE MOTION TO TRANSFER VENUE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendant, Central Rig Services, LLC dba D&K Energy Services and also dba Petrotex filing this Memorandum of Law in Support of the Motion to Transfer Venue and for cause will show: I. FACTS 1. Defendant, Central Rig Services, LLC dba D&K Energy Services and also dba Petrotex has absolutely no connection to Harris County. None of the causes of action occurred, arosed or part of any action in Harris County. This suit is for foreclosure of liens filed pursuant to the Texas Property Code, The Plaintiff chose to file suit in this manner. 2. In fact, in its petition, the Plaintiff included a specific Paragraph entitled “Suit for Foreclosure of Liens related to Mineral Activities” those paragraphs include numbers 13 and 14. 3. Additionally, Plaintiff invokes Property Code Chapter 56. Defendant answered the suit that Property Code Chapter 56 was not complied with in this case. Thus, a major issue is the validity of the liens in this case. Liens the Plaintiff seeks to foreclose. Plaintiff did not have to seek foreclosure of liens in this case, but did. They could have easily sued for breach of contract, suit of an account, 8653-038 Memorandum of Law in Support of TV. wpd 1etc. but chose freely to sue to foreclose on their liens. When Plaintiff chose this course of action, venue was determined. The Plaintiff has no one to blame regarding venue other than themselves. 4, Furthermore, the petition attaches several liens which the Plaintiff filed in Karnes, County, Frio County and Reeves County. 5. Notably, none of the liens were filed in Harris County. Only Plaintiff's attorney is in Harris County. That is the extent of Harris County’s connection to this case. 6. Plaintiff paid for the liens to be filed in the Real Property Deed Records of the counties other than Harris County. Most importantly, Plaintiff requested foreclosure of the liens. 7. It is undisputed that sone of the events giving rise to this cause of action occurred in Harris County. 8. The Plaintiff's “artful pleadings” are not enough to keep venue in Harris County. Il. ARGUMENT AND AUTHORITY Section 15.011 of the Texas Civil Practice and Remedies Code provides: Actions for recovery of real property or an estate or interest in real Property, for Partition of real property, to remove encumbrances from the title to real Property, Sor recovery of damages to real property or to quiet title to real property shall be brought in the county in which all or part of the property is located. Tex. Civ. Prac. & Rem. Code Aun. § 15.011. A court considers the true nature of the dispute in making the venue determination under § 15.011, See Renwar Oil Corp. v. Lancaster, 276 8.W.2d 774 (Tex. 1955). Yzaguirre vy. KCS Res., 53 S.W.3d 368 (Tex. 2001); In Renwar, applying the predecessor venue statute, the Supreme Court explains that the nature of the suit is determined from the facts alleged in the Plaintiff's Original Petition, the rights asserted and the relief sought. Renwar Oil Corp., 276 S.W.2d at 775. The court’s look to the “heart of the controversy” and “the controlling issues”. Id at 776. 8683-038 Mernorandum af Law in Support of TV wpd 2In Yzaguirre, the Court considered the “substance of the dispute” under the applicable version of the statute. Yzaguirre, 53 $,.W.3d at 371. After determining that the ownership of the property was not in dispute, and the substance of dispute concerned obligations owed under the lease, the Supreme Court held that § /5.0// did not apply to that case. See Jd, Recently, the Supreme Court noted that the statute has been changed over time to become more inclusive regarding types of real property suits subject to mandatory venue. Jn re Applied Chem. Magnesis Corp., 2016 S.W.3rd 118. In Applied Chemical, the Plaintiff filed a declaratory judgment seeking to clarify the rights and remedies of the parties under a letter agreement. Jd at 116. The Supreme Court nevertheless determined that the essence of this dispute was whether Applied Chemical had the right to mine marble on Aggregate’s land, and therefore ruled that the mandatory venue statute required that the declaratory judgment action be brought in the county where the land was located. The essence of this suit is whether or not Extreme can foreclose on its liens pursuant to the Texas Property Code. This case has mandatory venue written all over it. Extreme is simply using” artful pleadings” to circumvent the mandatory venue statutes. Extreme Crane & Rigging, LLC points out that this case involves personal property and that § 15.011 does not encompass suits for personal property but see Jn re Kerr, 293 S.W.3d 353 (Tex. App.-Beaumont 2009) (“artful pleadings” does not circumvent mandatory venue statutes). Mandatory venue provisions may not be avoided merely by artful pleading. /d. A court is required to determine the venue of the suit based on the facts existing at the time the cause of action that is the basis of the suit occurred. Tex. Civ. Prac. Rem, Code Ann. § 15.006 (Vernon 2002). Here, Plaintiff has plead compliance with the Property Code to establish a lien. Defendant has plead non-compliance with the Property Code. Plaintiff seeks foreclosure of its liens, 1865-038 Memorandum of Law in Support of TV wpd 3Because this is a suit to foreclose on liens related to mineral activity and because the Texas Property Code has been specifically invoked in this case both in the Plaintiff's petition as well as the Defendant’s answer the mandatory venue statute applies and the Defendant’s Motion to Transfer Venue should be granted. Ill. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court grant its Motion to Transfer Venue and such other and further relief to which it may show itself justly entitled, Respectfully submitted, HAYDEN & CUNNINGHAM, PLLC Attorneys at Law 7750 Broadway San Antonio, Texas 78209 (210) 826-7750 Telephone (210) 822-0916 Facsimile DAVID L. CUNNINGHAM State Bar No. 00787314 deunningham@7750law.com Attorney for Central Rig Services, LLC 8653-038 Memorandum of Law in Support of TV pd 4CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been forwarded by via email on this jay of September, 2018 as follows: Joe House Via Email: joe@houseperron.com House Perron & House, PLLC 2211 Norfolk Street, Ste. 1150 Houston, Texas 77098 Frank A, Piazza, Jr. Via Email: fpiaaza@brothers-law.com Two Memorial City Plaza 820 Gessner, Suite 1075 Houston, Texas 77024 VID L. CUNNINGHAM 5653-038 Memorandum of Law in Support of TV wp 5