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FILED
1/18/2023 9:26 AM
12/27/2022 8:21 PM
DC-23'01 162 FELICIA PITRE - District Clerk Harris County
DISTRICT CLERK Marilyn Burgess E nve ope N 0' 71310375
DALLAS co. , TEXAS
I
-- - '
By: Adlllanl Solls
Gay Lane DEPUTY Filed: 12/27/2022 8:21 PM
CAUSE NO. 2022-77 230
HUDSON ENERGY SERVICES, LLC, § IN THE DISTRICT COURT
Plaintiff, g
v. g 215th JUDICIAL DISTRICT
SUN HOLDINGS, INC., g
Defendant. g HARRIS COUNTY, TEXAS
DEFENDANT SUN HOLDINGS, INC.’S MOTION TO TRANSFER VENUE,
PLEA IN ABATEMENT. AND MOTION TO MODIFY FINAL AWARD
Defendant Sun Holdings, Inc. files this Motion to Transfer Venue, Plea in Abatement,
and Motion to Modify Final Award and would respectfully show the Court as follows:
BACKGROUND
l. Hudson Energy Services, LLC filed suit against Sun in Dallas County in 2020.
The suit was docketed as cause number DC-20-18604 and is currently pending in the 192ml
District Court.
2. On October 15, 2021, the Dallas court signed an order granting Sun’s motion to
compel arbitration and stayed the case pending further order of the court.
3. The case was arbitrated and a final award was issued on November 22, 2022.
4. Hudson then filed suit to confirm the award in this Court.
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5. Sun moves to transfer venue to Dallas County pursuant to a mandatory venue
1
Certified Document Number: 105742467 - Page
provision, or, in the alternative, to abate this case in favor of the earlier-filed suit currently
pending in Dallas County.
MOTION To TRANSFER VENUE
6. To the extent necessary, Sun denies Hudson’s venue allegations that section
l7l.096(c) applies as that allegation fails to acknowledge that there is already a proceeding
DEFENDANT SUN HOLDINGS, INC.’s MOTION T0 TRANSFER VENUE,
PLEA IN ABATEMENT, AND MOTION To MODIFY FINAL AWARD PAGE 1
pending in another court that involves an issue referable to arbitration. As noted above, the
arbitrable case was brought in Dallas County and is still pending.
7. While the arbitration did take place in Harris County as alleged by Hudson,
section 171.096(0) of the Civil Practice and Remedies Code only applies if section 171.024 does
not apply. TEX. CIV. PRAC. & REM. CODE § 171.024(b).
8. By its terms, section 171.096 applies to “initial applications” and does not apply
when a case is already pending in which arbitration was sought and compelled. TEX. CIV. PRAC.
& REM. CODE § 171.096(d).
9. Hudson’s reliance on In re Lopez is, therefore, misplaced, as that case dealt with
the interplay between subsections 171.096(b) and (c), not between subsection (d) and section
171.024. Lopez says as much: “Section 171.096(0) expresses the Legislature’s intent that
proceedings arising out of arbitration begin in the same county where the arbitration took place.”
372 S.W.3d. 174, 176 (Tex. 2012) (emphasis added). Here, the proceeding began in Dallas
County. So the initial application provisions expressly do not apply.
10. Sections 171.024(a) and 171.096(d) are mandatory as they use the terms “only”
and “must file,” respectively. For these reasons, Dallas County is the county of mandatory venue
and the case should be transferred accordingly.
PLEA IN ABATEMENT
Certified Document Number: 105742467 - Page 2 of 5
11. In the alternative, and subject to and without waiving Sun’s motion to transfer
venue, this case should be abated in favor of the earlier-filed case in Dallas County.
12. Both the Dallas County suit and this case are inherently interrelated as they both
involve the exact same issues and parties.
DEFENDANT SUN HOLDINGS, INC.’s MOTION T0 TRANSFER VENUE,
PLEA IN ABATEMENT, AND MOTION To MODIFY FINAL AWARD PAGE 2
13. The Court in which suit is first filed, here the 192'“ District Court in Dallas
County, acquires dominant jurisdiction to the exclusion of other coordinate courts. Abatement
under these circumstances is mandatory, and a court abuses its discretion by not abating the
second suit. Thus, to the extent the Court does not transfer the case as required by statute, this
case should be abated in favor of the Dallas County suit.
MOTION To MODIFY THE AWARD
l4. In response to the merits of Hudson’s request to confirm the award, Sun seeks
modification of the final award under section 17l.09l(a)(2) of the Texas Civil Practice and
Remedies Code. Specifically, the arbitrator exceeded his powers by making an award with
respect to matter not submitted to him in ordering that Hudson is entitled to seek additional relief
in the forrn of fees and costs outside of the arbitration proceeding. Costs and fees outside of the
arbitration proceeding were beyond the authority granted to the arbitrator under the arbitration
agreement and appliable rules, and not submitted to the arbitrator for decision. Consequently, the
award should be modified to delete this provision.
PRAYER
15. For these reasons, Defendant Sun Holdings, Inc. respectfully requests that the
Court grant its motion to transfer the case to Dallas County, or, in the alternative and subject to
Defendant’s motion to transfer venue, abate this case in favor of the first-filed suit currently
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pending in Dallas County, grant Defendant’s request to modify the final award as required
Certified Document Number: 105742467 - Page
herein, and grant Defendant all other relief to which it is justly entitled.
DEFENDANT SUN HOLDINGS, INC.’s MOTION T0 TRANSFER VENUE,
PLEA IN ABATEMENT, AND MOTION TO MODIFY FINAL AWARD PAGE 3
Respectfully submitted,
By:
BYRON K. HEN
Texas Bar No. 240 909
byron.henrv@solidcounsel.com
SCHEEF & STONE, L.L.P.
2600 Network Boulevard, Suite 400
Frisco, Texas 75034
Telephone: (214) 472-2100
Facsimile: (214) 472-2150
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I certify that on December 27, 2022, a true and correct copy of the foregoing was served
on all parties and/or counsel of record as indicated below pursuant to Rule 21a of the Texas
Rules of Civil Procedure.
Via Electronic Filing/Service
James D. Smith
Jim@SmithTexasLaW.com
Rodney J. Cappel
Rodney@ SmithTexasLaW.com
THE SMITH LAW FIRM
550 Westcott Street, Suite 250
Houston, Texas 77009-6040
Attorneys for Plaintifl
BYRON K. HEN
Certified Document Number: 105742467 - Page 4 of 5
DEFENDANT SUN HOLDINGS, INC.’s MOTION T0 TRANSFER VENUE,
PLEA IN ABATEMENT, AND MOTION TO MODIFY FINAL AWARD PAGE 4
DECLARATION 0F BYRON K. HENRY
1. “My name is Byron K. Henry. I am over the age of eighteen years and have never
been convicted of a felony or a crime involving moral turpitude. I am fully competent to make
this Declaration. The facts stated herein are true and correct based upon my personal
knowledge.”
2. “I am an attorney licensed by the State of Texas. I am a partner in the law firm of
Scheef & Stone, LLP. I am lead counsel in this case representing Defendant Sun Holdings, Inc.,
and have been so since the inception of this lawsuit. In that capacity, I am familiar with the
claims and defenses being asserted in this lawsuit, and the related facts.”
3. “I hereby declare under penalty of perjury that the statements contained in
Defendant Sun Holdings, Inc.’s Motion to Transfer Venue, Plea in Abatement, and Motion to
Modify Final Award are within my personal knowledge and are true and correct.”
4. “My name is Byron K. Henry. My date of birth is July 18, 1970. My address is
2600 Network Blvd., Suite 400, Frisco, Texas 75034. I hereby declare under penalty of perjury
that the information contained in this declaration is within my personal knowledge and is true
and correct. This declaration was executed in Collin County, Texas on December 27. 2022.”
/Mfi
Byron K. Henry
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Certified Document Number: 105742467 - Page
DEFENDANT SUN HOLDINGS, INC.’s MOTION T0 TRANSFER VENUE,
PLEA IN ABATEMENT, AND MOTION To MODIFY FINAL AWARD PAGE 5
a? #22
2:2 '53.
MW
I, Marilyn Burgess, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this January 12, 2023
Certified Document Number: 105 742467 Total Pages: 5
rm
Marilyn Burgess, DISTRICT CLERK
HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 51.301 and 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
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FILED 1/18/2023 9:26 AM 12/27/2022 8:21 PM DC-23'01 162 FELICIA PITRE - District Clerk Harris County DISTRICT CLERK Marilyn Burgess E nve ope N 0' 71310375 DALLAS co. , TEXAS I -- - ' By: Adlllanl Solls Gay Lane DEPUTY Filed: 12/27/2022 8:21 PM CAUSE NO. 2022-77 230 HUDSON ENERGY SERVICES, LLC, § IN THE DISTRICT COURT Plaintiff, g v. g 215th JUDICIAL DISTRICT SUN HOLDINGS, INC., g Defendant. g HARRIS COUNTY, TEXAS DEFENDANT SUN HOLDINGS, INC.’S MOTION TO TRANSFER VENUE, PLEA IN ABATEMENT. AND MOTION TO MODIFY FINAL AWARD Defendant Sun Holdings, Inc. files this Motion to Transfer Venue, Plea in Abatement, and Motion to Modify Final Award and would respectfully show the Court as follows: BACKGROUND l. Hudson Energy Services, LLC filed suit against Sun in Dallas County in 2020. The suit was docketed as cause number DC-20-18604 and is currently pending in the 192ml District Court. 2. On October 15, 2021, the Dallas court signed an order granting Sun’s motion to compel arbitration and stayed the case pending further order of the court. 3. The case was arbitrated and a final award was issued on November 22, 2022. 4. Hudson then filed suit to confirm the award in this Court. of 5 5. Sun moves to transfer venue to Dallas County pursuant to a mandatory venue 1 Certified Document Number: 105742467 - Page provision, or, in the alternative, to abate this case in favor of the earlier-filed suit currently pending in Dallas County. MOTION To TRANSFER VENUE 6. To the extent necessary, Sun denies Hudson’s venue allegations that section l7l.096(c) applies as that allegation fails to acknowledge that there is already a proceeding DEFENDANT SUN HOLDINGS, INC.’s MOTION T0 TRANSFER VENUE, PLEA IN ABATEMENT, AND MOTION To MODIFY FINAL AWARD PAGE 1 pending in another court that involves an issue referable to arbitration. As noted above, the arbitrable case was brought in Dallas County and is still pending. 7. While the arbitration did take place in Harris County as alleged by Hudson, section 171.096(0) of the Civil Practice and Remedies Code only applies if section 171.024 does not apply. TEX. CIV. PRAC. & REM. CODE § 171.024(b). 8. By its terms, section 171.096 applies to “initial applications” and does not apply when a case is already pending in which arbitration was sought and compelled. TEX. CIV. PRAC. & REM. CODE § 171.096(d). 9. Hudson’s reliance on In re Lopez is, therefore, misplaced, as that case dealt with the interplay between subsections 171.096(b) and (c), not between subsection (d) and section 171.024. Lopez says as much: “Section 171.096(0) expresses the Legislature’s intent that proceedings arising out of arbitration begin in the same county where the arbitration took place.” 372 S.W.3d. 174, 176 (Tex. 2012) (emphasis added). Here, the proceeding began in Dallas County. So the initial application provisions expressly do not apply. 10. Sections 171.024(a) and 171.096(d) are mandatory as they use the terms “only” and “must file,” respectively. For these reasons, Dallas County is the county of mandatory venue and the case should be transferred accordingly. PLEA IN ABATEMENT Certified Document Number: 105742467 - Page 2 of 5 11. In the alternative, and subject to and without waiving Sun’s motion to transfer venue, this case should be abated in favor of the earlier-filed case in Dallas County. 12. Both the Dallas County suit and this case are inherently interrelated as they both involve the exact same issues and parties. DEFENDANT SUN HOLDINGS, INC.’s MOTION T0 TRANSFER VENUE, PLEA IN ABATEMENT, AND MOTION To MODIFY FINAL AWARD PAGE 2 13. The Court in which suit is first filed, here the 192'“ District Court in Dallas County, acquires dominant jurisdiction to the exclusion of other coordinate courts. Abatement under these circumstances is mandatory, and a court abuses its discretion by not abating the second suit. Thus, to the extent the Court does not transfer the case as required by statute, this case should be abated in favor of the Dallas County suit. MOTION To MODIFY THE AWARD l4. In response to the merits of Hudson’s request to confirm the award, Sun seeks modification of the final award under section 17l.09l(a)(2) of the Texas Civil Practice and Remedies Code. Specifically, the arbitrator exceeded his powers by making an award with respect to matter not submitted to him in ordering that Hudson is entitled to seek additional relief in the forrn of fees and costs outside of the arbitration proceeding. Costs and fees outside of the arbitration proceeding were beyond the authority granted to the arbitrator under the arbitration agreement and appliable rules, and not submitted to the arbitrator for decision. Consequently, the award should be modified to delete this provision. PRAYER 15. For these reasons, Defendant Sun Holdings, Inc. respectfully requests that the Court grant its motion to transfer the case to Dallas County, or, in the alternative and subject to Defendant’s motion to transfer venue, abate this case in favor of the first-filed suit currently of 5 3 pending in Dallas County, grant Defendant’s request to modify the final award as required Certified Document Number: 105742467 - Page herein, and grant Defendant all other relief to which it is justly entitled. DEFENDANT SUN HOLDINGS, INC.’s MOTION T0 TRANSFER VENUE, PLEA IN ABATEMENT, AND MOTION TO MODIFY FINAL AWARD PAGE 3 Respectfully submitted, By: BYRON K. HEN Texas Bar No. 240 909 byron.henrv@solidcounsel.com SCHEEF & STONE, L.L.P. 2600 Network Boulevard, Suite 400 Frisco, Texas 75034 Telephone: (214) 472-2100 Facsimile: (214) 472-2150 ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I certify that on December 27, 2022, a true and correct copy of the foregoing was served on all parties and/or counsel of record as indicated below pursuant to Rule 21a of the Texas Rules of Civil Procedure. Via Electronic Filing/Service James D. Smith Jim@SmithTexasLaW.com Rodney J. Cappel Rodney@ SmithTexasLaW.com THE SMITH LAW FIRM 550 Westcott Street, Suite 250 Houston, Texas 77009-6040 Attorneys for Plaintifl BYRON K. HEN Certified Document Number: 105742467 - Page 4 of 5 DEFENDANT SUN HOLDINGS, INC.’s MOTION T0 TRANSFER VENUE, PLEA IN ABATEMENT, AND MOTION TO MODIFY FINAL AWARD PAGE 4 DECLARATION 0F BYRON K. HENRY 1. “My name is Byron K. Henry. I am over the age of eighteen years and have never been convicted of a felony or a crime involving moral turpitude. I am fully competent to make this Declaration. The facts stated herein are true and correct based upon my personal knowledge.” 2. “I am an attorney licensed by the State of Texas. I am a partner in the law firm of Scheef & Stone, LLP. I am lead counsel in this case representing Defendant Sun Holdings, Inc., and have been so since the inception of this lawsuit. In that capacity, I am familiar with the claims and defenses being asserted in this lawsuit, and the related facts.” 3. “I hereby declare under penalty of perjury that the statements contained in Defendant Sun Holdings, Inc.’s Motion to Transfer Venue, Plea in Abatement, and Motion to Modify Final Award are within my personal knowledge and are true and correct.” 4. “My name is Byron K. Henry. My date of birth is July 18, 1970. My address is 2600 Network Blvd., Suite 400, Frisco, Texas 75034. I hereby declare under penalty of perjury that the information contained in this declaration is within my personal knowledge and is true and correct. This declaration was executed in Collin County, Texas on December 27. 2022.” /Mfi Byron K. Henry of 5 5 Certified Document Number: 105742467 - Page DEFENDANT SUN HOLDINGS, INC.’s MOTION T0 TRANSFER VENUE, PLEA IN ABATEMENT, AND MOTION To MODIFY FINAL AWARD PAGE 5 a? #22 2:2 '53. MW I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this January 12, 2023 Certified Document Number: 105 742467 Total Pages: 5 rm Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS In accordance with Texas Government Code 51.301 and 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com