Preview
FILED
5/9/2023 11:40 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Debra Clark DEPUTY
CAUSE NO. DC-23-01657
HUNTER BRIAN and SHELBY SCOTT, IN THE DISTRICT COURT
individually and as next friends of L.F.B.,
a minor,
Vv.
D’ANDRA D. BINGHAM, M.D.; DALLAS COUNTY, TEXAS
COLLOM & CARNEY CLINIC
ASSOCIATION; CHRISTUS HEALTH
ARK-LA-TEX d/b/a CHRISTUS ST.
MICHAEL HEALTH SYSTEM;
CHRISTUS HEALTH; SUSAN
ELIZABETH KEENEY, M.D.; and
PEDIATRIX MEDICAL SERVICES, INC., §
d/b/a PEDIATRIX MEDICAL GROUP OF §
TEXAS § 134TH JUDICIAL DISTRICT
REPLY IN SUPPORT OF DEFENDANT CHRISTUS HEALTH’S
MOTION TO TRANSFER VENUE
Defendant CHRISTUS Health (“CH”) files this reply in support of its Motion to Transfer
Venue.
BACKGROUND
This is a medical malpractice case relating to Shelby Scott’s care in February 2021 at
CHRISTUS Health Ark-La-Tex (“CH ALT”) d/b/a CHRISTUS St. Michael Health System
(“CHRISTUS St. Michael’) located in Texarkana, Bowie County, Texas. Plaintiffs’ claim is
governed by Chapter 74 of the Texas Civil Practice and Remedies Code. CH ALT and CH are
nonprofit corporations and are affiliated with each other. The damages cap under Ch. 74 includes
members (CH) and affiliates (CH ALT) of health care providers and physicians.
Plaintiffs have sued CHRISTUS St. Michael and CH (along with others) for medical
negligence under direct and vicarious theories of liability. See, Plaintiffs’ Original Petition, 4
CH MTV (reply) - pg. 1
7.05-7.14, pages 11-15.”
Plaintiffs allege that the health care providers failed to properly manage Shelby Scott’s and
L.F.B.’s care in the labor and delivery unit at CHRISTUS St. Michael which they claim caused
L.F.B. to suffer a hypoxic-ischemic injury. Specially, Plaintiffs claim:
1 Dr. Bingham and the nursing staff of CHRISTUS St. Michael, including RN Doxey
failed to discontinue Pitocin (and not thereafter restart it) when the fetal heart
tracing was Category II with observable recurrent decelerations;
RN Doxey failed to notify the neonatal resuscitation team to be present for L.F.B.’s
delivery;
Dr. Bingham failed to ensure that the neonatal resuscitation team was present prior
to L.F.B.’s birth as she would have suffered less hypoxic-ischemic injury;
CHRISTUS St. Michael failed in the development, training, education, and
enforcement of the chain of command policy; and
CHRISTUS St. Michael failed in the training and supervision of the nursing staff on
fetal monitoring.
It is undisputed that at all times relevant to Shelby Scott’s care at CHRISTUS St. Michael,
CH was not licensed to provide health care, did not provide health care to Shelby Scott, did not
employ those who provided such care, did not make any clinical decisions, and that the clinical
policies relating to Shelby Scott’s care were policies of CHRISTUS St. Michael and not CH. See,
Affidavit of Kenneth Cunningham, Exhibit 1 @ 4 3(e) (pg. 9) filed with the Motion to Transfer
Venue and attached to this reply. Nevertheless, Plaintiffs sued CH for the sole and improper
purpose of securing venue in Dallas County.
The Motion to Transfer Venue should be granted because:
1 There is no reasonable possibility that Plaintiffs will prevail on the merits
against CH because:
a. CH was not licensed to provide health care, did not provide health
care to Shelby Scott, did not employ those who provided such care,
and did not make any clinical decisions relating to her care. The
clinical policies relating to Shelby Scott’s care were policies of
CHRISTUS St. Michael and not CH. CH is not a real and substantial
“CH requests the Court to take judicial notice of the pleadings on file in this cause pursuant to Rule 201(b)(2) of the
Texas Rules of Evidence.
CH MTV (reply) - pg. 2
party and is being sued to secure venue in Dallas County, Texas.
That is unjust to CH and to the other Defendants who should be
judged by their peers in Texarkana, Bowie County, Texas where the
care was provided. Exhibit 1 @ { 4 (pgs. 9-10).
CH is immune from liability for the obligations of CHRISTUS St.
Michael. See TEX. BUS. ORG. CODE § 22.152.
It is inconvenient for the Defendants and witnesses for this case to remain
in Dallas County, Texas because the care was provided in Bowie County,
Texas and there is no reasonable possibility that Plaintiffs will prevail on
the merits against CH. Dallas County, Texas is an inconvenient venue which
will place economic and personal hardship on the Defendants and
witnesses. Exhibit 1 @ 4 5 (pg. 10).
In the interest of justice, and for the convenience of the Defendants and witnesses,
Defendants request that this matter be transferred to Bowie County, Texas.
PLAINTIFFS’ RESPONSE TO MOTIONS TO TRANSFER VENUE
A, Plaintiffs are required to prove a bona fide cause of action against CH.
Plaintiffs mistakenly claim that CH’s challenge of their claims is not permitted when
moving to transfer venue. CH is not challenging Plaintiffs’ claims against the non-resident
Defendants but rather is challenging their claims against CH, the resident defendant.
Proof of a cause of action against the resident defendant is necessary to establish that the
resident defendant is not joined fraudulently for the purpose of maintaining improper venue. Von
Scheele v. Kugler-Morris General Contractors, Inc., 532 S.W. 2d 375, 380-81 (Tex. App. — Dallas
1975, writ dism’d., w.o.j.) Exhibit 2 (pg. 14). The purpose of this judicially imposed requirement
is to establish the good faith of the plaintiff in joining the resident defendant. /d. See also,
Stockyards National Bank v. Maples, 127 Tex. 633, 638-40 (1936) (... such ruling is necessary
because any less strict requirements would render the valuable right of a defendant to be sued in
the county of his residence too easily denied to him by the simple allegations of his adversary,
perhaps never intended to be proved.) Exhibit 3 (pg. 20); Kirksey v. Warren, 348 S.W.2d 33, 36
CH MTV (reply) - pg. 3
(Tex. Civ. App. — Dallas 1961, no writ) Exhibit 4 (pg. 25); Helland v. Western Constr. Co., 516
S.W.2d 437, 441 (Tex. App. — San Antonio 1974, no writ)(Because agent of disclosed principal
had no liability for contract claim and therefore there was no bona fide claim against him, joinder
of agent to maintain venue was error and required reversal). Exhibit 5 (pg. 30).
Plaintiffs have sued CH for direct and vicarious theories of liability. There is no reasonable
possibility that the Plaintiffs will prevail on the merits against CH under a direct claim because
CH was not licensed to provide health care, did not provide health care to Shelby Scott, did not
make any clinical decisions relating to her care, did not employ those who provided such care or
provide clinical policies relating to his care. The clinical policies relating to Shelby Scott’s care
were policies of CHRISTUS St. Michael and not CH. Exhibit 1 @ § 3(e) (pg. 9).
There is also no reasonable possibility that the Plaintiffs will prevail on the merits against
CH under a vicarious theory of liability because CH is immune from liability for the obligations
of CHRISTUS St. Michael. As a matter of law, CH is not liable for the obligations of CHRISTUS
St. Michael. See TEX. BUS. ORG. CODE § 22.152 which provides:
Sec. 22.152. IMMUNITY FROM LIABILITY. The members of a corporation are not
personally liable for a debt, liability, or obligation of the corporation.
It is undisputed that at all times relevant to Plaintiffs’ claims, CH ALT was a non-profit
corporation affiliated with CH. Exhibit 1 @ 4§ 3(a), (f) (pg. 9). Nonprofit corporations have
members as owners as opposed to shareholders in a for-profit setting. At all times relevant to
Plaintiffs’ claims, CH was the sole member of CHRISTUS Northeast Texas Health System
Corporation and CHRISTUS Northeast Texas Health System Corporation was the sole member of
CH ALT which owned, operated, and did business as CHRISTUS ST. Michael in Bowie County.
Id.
The sole reason for suing CH is to establish venue in Dallas County even though, as a
CH MTV (reply) - pg. 4
matter of law, CH cannot be held liable for the obligations of CHRISTUS St. Michael and CH was
not involved in Shelby Scott’s care. All of the persons who provided care to Shelby Scott did so
in Bowie County, the alleged incident occurred in Bowie County, and the vast majority of
witnesses are health care providers who reside in or near Bowie County.
Therefore, Plaintiffs cannot prove a bona fide cause of action against CH under a direct or
vicarious theory of liability. Consequently, the attempt to maintain venue in Dallas County is an
inappropriate attempt to deprive all Defendants of the proper venue in this case through a
fraudulent joinder of parties.
Dallas County is not the proper venue of this action. Pursuant to applicable law, venue is
proper in Bowie County and the Motion to Transfer Venue should be granted. In the interest of
justice, and for the convenience of the Defendants and witnesses, Defendants request that this
matter be transferred to Bowie County, Texas.
B. Plaintiffs ignore uncontroverted affidavit testimony of Regional General Counsel.
Venue is proper in the county in which all or a substantial part of the events or omissions
giving rise to the claim occurred, or the county of the defendant’s principal office in this state if
the defendant is not a natural person. TEX. Civ. PRAC. & REM. CODE §§ 15.002(a)(1) and (3).
“Principal office” means the location in which the decision makers for the organization within this
state conduct the daily affairs of the organization. TEX. CIv. PRAC. & REM. CODE §§ 15.001(a).
Plaintiffs claim that CH has not demonstrated the need for transfer based on convenience
and has not demonstrated the requisite economic and personal hardships needed to justify changing
venue for convenience. However, Plaintiffs ignore the uncontroverted affidavit testimony of the
Regional General Counsel who established that the principal offices and decision makers who
conduct the daily affairs of CHRISTUS St. Michael were located in Bowie County, Texas when
CH MTV (reply) - pg. 5
Shelby Scott was treated. Exhibit 1 @ { 3(b) (pg. 9). The decision makers, medical care, hospital
staff, and witnesses were located in Bowie County and not in Dallas County and Plaintiffs do not
dispute that Plaintiffs reside in Bowie, County, Texas (Petition, page 2, {§ 2.01, 2.02), Defendant
Dr. Bingham resides in Bowie County, Texas (/d., page 2, 4 2.03), Defendant Dr. Keeney resides
in Bowie County, Texas (/d., page 3, § 2.07), and that Shelby Scott was admitted to CHRISTUS
St. Michael (Id., pages 6, 9, §9 6.02, 6.13).
C Plaintiffs’ claim that CH failed to present evidence of inconvenience is untrue.
When a defendant specifically denies venue facts as CH has done here, the plaintiff must
support her pleadings with prima facie proof. Jaska v. Tex. Dep’t. of Protective & Regulatory
Servs., 106 S.W.3d 907, 910 (Tex. App. — Dallas 2003, no pet). Exhibit 6 (pg. 33).
Plaintiffs claim that CH has failed to present particularized evidence of any economic or
personal hardship that would justify transferring the case based on convenience. This is incorrect
because the affidavit testimony of the Regional General Counsel established that the principal
office for CHRISTUS St. Michael was located in Bowie County when Shelby Scott was treated.
Exhibit 1 @ {¥ 3(a), (b) (pg. 9). The decision makers, medical care, hospital staff, and witnesses
were located in Bowie County and not Dallas County.
Plaintiffs also ignore the affidavit testimony that the decision makers who oversaw the
daily affairs for CHRISTUS St. Michael were located in Bowie County, the decision makers for
health care were located in Bowie County, CHRISTUS St. Michael had complete authority over
the day-to-day operations relating to patient care, and that decisions regarding Shelby Scott’s care
were made by her treating physicians and the staff of CHRISTUS St. Michael. Exhibit 1 @ 4
3(b)-(d) (pg. 9). Plaintiffs’ argument that CH has not shown economic and personal hardship is
untrue and completely disregards the uncontroverted affidavit testimony. Plaintiffs’ sole and
improper basis for suing CH is to establish venue in Dallas County.
CH MTV (reply) - pg. 6
D. Recently, a Dallas court has transferred venue out of Dallas County where fraudulent
joinder, inconvenience, and injustice were alleged.
On April 7, 2023, a Dallas court transferred venue out of Dallas County to Anderson
County where the decision makers, medical care, health care providers, and witnesses were
located. See, Declaration of Lisa Alvarado and Exhibits 7 and 8 (pgs. 37-42). The court granted
the motion to transfer venue for an affiliate of CH, a clinic, and physician. In that case, fraudulent
joinder, injustice and inconvenience were argued.
WHEREFORE, CHRISTUS Health prays that the Court transfer this case to Bowie
County, Texas, and for such other and further relief, both general and special, at law or in equity,
to which it may be justly entitled.
Respectfully submitted,
SHANNON, MARTIN, FINKELSTEIN, ALVARADO &
DUNNE, P.C.
1001 McKinney St., Suite 560
Houston, Texas 77002
Tel: (713) 805-5241
Fax: (713) 752-0337
lalvarado@smfadlaw.com
By:/s/ Lisa Alvarado
Elizabeth D. (Lisa) Alvarado
Texas Bar No. 01125980
Attorneys for Defendant CHRISTUS Health
CERTIFICATE OF SERVICE
I certify that on May 9, 2023, a true and correct copy of the foregoing was served upon all
attorneys of record in accordance with the Texas Rules of Civil Procedure.
/s/ Lisa Alvarado
Elizabeth D. (Lisa) Alvarado
CH MTV (reply) - pg. 7
EXHIBIT 1
CAUSE NO. DC-23-01657
HUNTER BRIAN and SHELBY SCOTT, § IN THE DISTRICT COURT
individually and as next friends of L.F.B., §
a minor,
Vv, §
D’ANDRA D. BINGHAM, M.D.; DALLAS COUNTY, TEXAS
COLLOM & CARNEY CLINIC
ASSOCIATION; CHRISTUS HEALTH
ARK-LA-TEX d/b/a CHRISTUS ST.
MICHAEL HEALTH SYSTEM;
CHRISTUS HEALTH; SUSAN
ELIZABETH KEENEY, M.D.; and
PEDIATRIX MEDICAL SERVICES, INC., §
d/b/a PEDIATRIX MEDICAL GROUP OF §
TEXAS § 134TH JUDICIAL DISTRICT
AFFIDAVIT OF KENNETH CUNNINGHAM
STATE OF TEXAS §
§
COUNTY OF DALLAS §
Before me, the undersigned authority, did personally appear Kenneth Cunningham, who
being duly sworn, stated, and deposed under oath the following:
1 “My name is Kenneth Cunningham. I am a resident of the State of Texas. I am competent
to make this affidavit, I am making this affidavit in support of the Motion to Transfer Venue
of Defendant CHRISTUS Health.
I am a Vice President and Regional General Counsel for CHRISTUS Health. As part of
my duties as Vice President and Regional General Counsel, I am familiar with the
operations of CHRISTUS Health and its affiliate, CHRISTUS Health Ark-La-Tex d/b/a
CHRISTUS St. Michael Health System. I am authorized by CHRISTUS Health and
CHRISTUS Health Ark-La-Tex to make this affidavit. I am familiar with the location,
principal office, and decision makers for CHRISTUS Health Ark-La-Tex d/b/a CHRISTUS
St. Michael Health System. As a result of my position, and my own personal knowledge, [ am
familiar with, and understand the relationship between CHRISTUS Health and CHRISTUS
Health Ark-La-Tex d/b/a CHRISTUS St. Michael Health System. In this position, I have
personal knowledge of the facts stated herein and they are true and correct.
Shelby Scott’s care and treatment that is the subject of this lawsuit occurred at CHRISTUS
St. Michael Health System in February 2021. At all times relevant to Shelby Scott’s care
and treatment at CHRISTUS St. Michael Health System:
CH MTV (reply) - pg. 8
EXHIBIT 1
CHRISTUS Health Ark-La-Tex was a Texas nonprofit corporation with its
principal office and place of business located in Texarkana, Bowie County,
Texas, and it was the sole owner, operator, and licensee of, and did business
as, CHRISTUS St. Michael Health System. The principal office of
CHRISTUS Health Ark-La-Tex was located in Texarkana, Bowie County,
Texas and has never been located in Dallas County, Texas.
The decision makers who conducted the daily affairs of CHRISTUS St.
Michael Health System were located in Texarkana, Bowie County at 2600
St. Michael Drive, Texarkana, Texas 75501. The location for all meetings
of the Board of Directors for CHRISTUS Health Ark-La-Tex was in Tyler,
Smith County, Texas, and did not meet in Dallas County, Texas. In addition
to the Board of Directors, the other decision makers who oversaw the daily
affairs of CHRISTUS St. Michael Health System (President, Chief Medical
Officer, and Chief Nursing Officer) were located in Texarkana, Bowie
County, Texas
CHRISTUS Health Ark-La-Tex had complete authority over the day-to-day
operations of CHRISTUS St. Michael Health System relating to patient
care.
Decisions regarding the care provided to Shelby Scott were made by her
treating physicians and the staff of CHRISTUS St. Michael Health System
and her medical records were maintained at CHRISTUS St. Michael Heaith
System.
CHRISTUS Health was not licensed to provide health care, did not provide
health care to Shelby Scott, did not employ those who provided such care,
and did not make any clinical decisions relating to her care. The clinical
policies relating to Shelby Scott’s care were policies of CHRISTUS St.
Michael Health System and not CHRISTUS Health. A health care provider-
patient relationship did not exist between CHRISTUS Health and Shelby
Scott.
CHRISTUS Northeast Texas Health System Corporation was the sole
member of CHRISTUS Health Ark-La-Tex, and CHRISTUS Health was
the sole member of CHRISTUS Northeast Texas Health System
Corporation.
There is no reasonable possibility that the Plaintiffs will prevail on the merits against
CHRISTUS Health because CHRISTUS Health was not licensed to provide health care,
did not provide health care to Shelby Scott, did not employ those who provided such care,
and did not make any clinical decisions relating to her care. The clinical policies relating
to Shelby Scott’s care were policies of CHRISTUS St. Michael Health System and not
CHRISTUS Health. CHRISTUS Health is not a real and substantial party and is being sued
to secure venue in Dallas County, Texas. That is unjust to CHRISTUS Health and to the
CH MTV (reply) - pg. 9
EXHIBIT 1
other Defendants who should be judged by their peers in Bowie County, Texas where the
care was provided. Jn the interest of justice, CHRISTUS Health requests that this matter
be transferred to Bowie County, Texas.
Itis inconvenient for the Defendants and witnesses for this case to remain in Dallas County,
Texas because the care was provided in Bowie County, Texas and there is no reasonable
possibility that the Plaintiffs will prevail on the merits against CHRISTUS Health. Dallas
County, Texas is an inconvenient venue which will place economic and personal hardship
on the Defendants and witnesses, For the convenience of the Defendants and witnesses,
CHRISTUS Health requests that this matter be transferred to Bowie County, Texas.
Further affiant sayeth not.”
KENNETH CUD IGHAM, J.D.
Vice President/Regional General Counsel
CHRISTUS Health
SWORN TO AND SUBSCRIBED BEFORE ME on March Ss , 2023 to certify
which witness my hand and seal of office.
YiSen nirw
nt ty, Notary Public, State of Texas
sy \S 44%
Sy Y Pi
Fe on™
“y
Ny “ny+
Haars
CH MTV (reply) - pg. 10
EXHIBIT 2
@ LexisNexis’
6 Neutral
As of: March 3, 2023 5:20 PM Z
Von Scheele v. Kugler-Morris General Contractors, Inc.
Court of Civil Appeals of Texas, Fifth District, Dallas
November 13, 1975
No. 18695
Reporter
532 S.W.2d 375 *; 1975 Tex. App. LEXIS 3236 **
contractor also sued the masonry subcontractor,
Edgar Von Scheele, Appellant v. Kugler-Morris
Dee Brown Masonry, Inc., a resident of Dallas
General Contractors, Inc., et al., Appellees
County, alleging in the alternative that if the owner
Subsequent History: [**1] Dismissed w.o,j. was correct in refusing to accept the work of the
subcontractor and was entitled to any offset to the
Writ of error dismissed for want of jurisdiction,
sum owing under the general contract because of
04/28/1976
the subcontractor's work, then the general
Rehearing of writ of error overruled, 06/09/1976 contractor was entitled to judgment against the
subcontractor for the amount of any such offset. !
Prior History: From a District Court of Dallas
County, Texas. [**2] The owner, who resides in Bexar County,
filed a plea of privilege. The general contractor's
Counsel: For Appellant: Ralph Langley - San controverting plea alleges that the suit may be
Antonio, IX, maintained against the owner in Dallas County
For Appellee: Robert S. Addison - Dallas, Texas. under Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 4
David Musslewhite - Dallas, Texas.
(Vernon 1964) because of the subcontractor's
residence in Dallas County. The nonresident
Judges: Clarence A. Guittard, Associate Justice. defendant contends that his plea of privilege should
have been sustained because the allegations of the
Opinion by: GUITTARD general contractor's alternative claim against the
resident subcontractor are insufficient to meet the
Opinion requirements of proving a bona fide claim against
the resident defendant under subdivision 4, and are
[*378] merely conjecture, based on what the
[*377] This appeal from an order overruling a plea
of privilege exemplifies the intricacies peculiar to
Texas venue law. The controversy concerns ) The litigation began as a suit by the masonry subcontractor against
the general contractor and owner, and the general coniractor’s
construction of the Oak Hills Motor Inn in Bexar pleading is in the form of a cro laim against the owner and a
County, Texas. The general contractor, Kugler- counterclaim against the subcontractor. Since our disposition of the
Morris General Contractors, Inc., sued the owner, venue question turns on the general contractor's cross-claim and
Edgar Von Scheele, in Dallas County, alleging counterclaim, the subcontractor’s action will not be mentioned
further. Neither do we find it necessary to discuss additional claims
completion of the project and the owner's liability of the general contractor against the owner and against two other
for the balance of the contract price. The general subcontractors
CH MTV (reply) - pg. 11
EXHIBIT 2 Page 2 of 6
532 S.W.2d 375, *378; 1975 Tex. App. LEXIS 3236, **2
owner might do in the lawsuit. Although this two may be joined to avoid a multiplicity of suits,
contention seems to confuse the question of proper and (2) plaintiff must introduce evidence at the
joinder of the claims against the two defendants venue hearing sufficient to establish the cause of
with the question of sufficiency of proof of a cause action alleged against the resident defendant. These
of action against the resident defendant, we treat it requirements are justified on the theory that a
as raising both questions. Thus, the questions to be defendant ought not to be required to litigate in a
decided may be stated as follows: (1) Is a claim distant county unless he is properly joined in a suit
against a resident defendant properly joined with a against a resident defendant and unless the plaintiff
claim against a nonresident defendant if the claim demonstrates by evidence his good faith in suing
against the resident is alleged only as an alternative the resident defendant. Jd. at 1303.
to the [**3] claim against the nonresident? (2) Is
proof of the alternative or contingent liability of the The two nonstatutory requirements summarized in
resident defendant sufficient to establish that Stockyards have led to much litigation because the
plaintiff has a bona fide cause of action against that law rarely defines with precision the causes of
defendant? We answer both questions in the action that may properly [**5] be joined or the
affirmative, and, accordingly, we affirm the order facts that must be alleged and proved to establish a
overruling the plea of privilege. cause of action for venue purposes. Although
opinions resulting from almost a hundred years of
1. Joinder of Causes of Action litigation under subdivision 4 may be found in the
South Western Reporter, and are annotated in more
Subdivision 4 of article 1995 provides: "If two or
than a hundred columns of fine print in Volume 5
more defendants reside in different counties, suit
of Vernon's Texas Revised Civil Statutes
may be brought in any county where one of the
Annotated, they leave a number of problems
defendants resides." Although this language is
unresolved, including the problem raised by
admirably simple, it has spawned a plethora of
alternative claims against different defendants. Is
interlocutory appeals which have produced a
an alternative claim, even if it arose out of the same
number of conflicts in the decisions. ? These "go
transaction or occurrence, intimately
conflicts have not arisen from any complexity or
connected" with the primary claim that the two
uncertainty in the statute, but rather from
claims may be joined to avoid a multiplicity of suits
requirements which the courts have added to
under the test stated in Stockyards
protect the defendant's "sacred right" to a trial in
the county of his residence. The only venue fact Some of the courts of civil appeals have held that
specified in subdivision 4 is the residence of one alternative causes of action against different
defendant in the county of suit. Texas courts, defendants are not joinable for venue purposes
however, as stated in Stockyards National Bank v. because they are "separate and distinct" causes of
Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302 action and are not based on any joint liability or
(1936), have imposed two additional requirements: “community of responsibility" between the
(1) plaintiff must allege [**4] a joint cause of defendants. McAlister v. City of Mertens, 43
action against the resident and non-resident $.W.2d 651, 652 (Tex. Civ. App. -- Waco 1931, no
defendants, or a cause of action against the resident writ); Danciger v. Smith, 229 S.W. 909, 910 (Tex.
defendant "so intimately connected" with the cause Civ. App. -- Dallas 1921, [**6] no writ). [*379]
of action against the nonresident defendant that the On this theory, if the cause of action alleged against
a nonresident defendant is primary and that alleged
against the resident defendant is alternative or
? The ses are reviewed in | McDONALD, TEXAS CIVIL contingent, the two claims have been held not
PR: 3 IN DISTRICT AND COUNTY COURTS § 4.10.1 ef properly joinable for venue purposes. Windham v.
seq. (rev. ed. 1965)
CH MTV (reply) - pg. 12
EXHIBIT 2 Page 3 of 6
532 S.W.2d 375, *379; 1975 Tex. App. LEXIS 3236, **6
Alpine Independent School District, 478 S.W.2d Windham decision, in Brown-McKee, Inc. v. City of
861, 865 (Tex. Civ. App. -- Amarillo 1972, writ Andrews, 501 S.W.2d 714, 717 (Tex. Civ. App. --
dism'd); Shaver v. Hughes, 214 S.W.2d 176, 178 Amarillo 1973, no writ), which involved alternative
(Tex. Civ. App. -- Fort Worth 1948, no writ). claims by a general contractor against a nonresident
Windham, which is probably the strongest case in owner and against the resident assignee of a
support of the nonresident owner's contention here, subcontractor. +
involved a claim on two warrants against a
[**9] The "community of responsibility" test
nonresident school district and an alternative claim
against a resident securities dealer for restitution in applied in Windham, and some of the other cases
the event the warrants should be declared invalid. above cited, was recently disapproved by this court
The Amarillo court of civil appeals held that in Angelo v. Chemical Bank & Trust Co., 529
joinder of these claims was not proper under $.W.2d 783 (Tex. Civ. App. -- Dallas, 1975), in
subdivision 4 because of lack of a "community of which we held that a more appropriate test of
responsibility" between the defendants. proper joinder under subdivision 4 was the
existence of a common question of fact. The
On the other hand, in a case more nearly like that primary claim in Angelo, as distinguished from the
now before us than any of those above cited, the present case, was against the resident defendant and
Corpus Christi court of civil appeals has held that liability of the nonresident was alleged in the
alternative allegations are sufficient to maintain alternative. We now hold, in accordance with the
venue. Bee County Cooperative Ass'n v. [**7] decision of the Corpus Christi court of civil appeals
Dominy, 489 S.W.2d 418, 421 (Tex. Civ. App. -- in Bee County, supra, that the same test applies to a
Corpus Christi 1972, no writ). In that case, as in case in which the liability of the nonresident
this, a general contractor alleged a primary cause of defendant is primary and that of the resident
action against the non-resident owner for money [*380] defendant is alternative or contingent. The
due under the contract and an alternative cause of same interest in avoiding multiplicity of suits ists
action against a subcontractor for breach of contract in both types of case, and also the same possibility
in the event any deficiency should be found in the that a plaintiff, though clearly entitled to recover
subcontractor's work. The owner contended, as from one of two defendants, may be denied relief
does the owner here, that the claim against the because the same issue of fact may be found
subcontractor was "an unaccrued cause of action against him both affirmatively and negatively if he
which does not satisfy the requirements of is forced to litigate in two different suits. Thus,
Subdivision 4," but the court held that the cause of in [**10] the present case, each of the causes of
action was not hypothetical because the ultimate action alleged by the general contractor arises from
issue determining whether owner or subcontractor the same transaction or series of transactions,
was liable was whether the project was properly namely, the construction of the Oak Hills Motor
completed in accordance with the contract. ?
[**8] This decision was followed by the Amarillo 4For other cases approving joinder for venue purposes of separate
claims against different defendants arising out of the same
court of civil appeals, without referring to its
transaction or series of transactions on the theory of avoiding a
multiplicity of suits, though not involving the same cause of action
or a "community of responsibility," see Atlas Roofing Co. v. Hall,
2 The owner's alternative allegation also asserted that if there were 150 Tex. 611, 245 S.W.2d 477 (1952); Meeker v. W & W. Well
any deficiencies in the work, they were the result of the combined Servicing Co., 318 S.W.2d 678, 681 (Tex. Civ. App. -- San Antonio
actions of the subcontractor and the owner. This allegation does not 1958, no writ); Taylor v. Jones, 244 $.W.2d 371 (Tex. Civ. App. --
serve to distinguish that case from the present because here, also, the Texarkana 1951, no writ); and Herold v. Texas Venetian Blind Co...
general contractor alleges in the alternative that the owner was guilty 203 S.W.2d 691, 692 (Tex. Civ. App. -- Dallas 1947), mand.
of “continual interference with the subcontractor and their overruled with apparent approval of this holding in Texas Venetian
performance on the job." Blind Co. v. Bond, 146 Tex. 212, 205 S.W.2d 977 (1947).
CH MTV (reply) - pg. 13
EXHIBIT 2 Page 4 of 6
532 S.W.2d 375, *380; 1975 Tex. App. LEXIS 3236, **10
Inn, and in each the controlling issue of fact is the general contractor is required to establish a
performance of the masonry subcontract. If a Bexar breach of contract against the subcontractor in
County jury, in a suit between the general order to maintain venue of the suit against the
contractor and the owner, finds that the masonry nonresident owner, the general contractor's proof at
work was defective, and a Dallas County jury, in a the venue hearing to that extent must be contrary to
suit between the general contractor and the its primary position in the case. Thus, in this case,
masonry subcontractor, finds that the masonry the general contractor alleged in its [**12] primary
work was properly done, then the general claim that the contract, including the masonry
contractor mustsuffer a loss based on the work, was completely performed, and its officer so
subcontractor's default, but will be unable to recoup testified at the venue hearing. To show a breach by
that loss from the subcontractor. Hence, we hold the subcontractor it introduced the testimony of the
that the two causes of action are so intimately owner concerning deficiencies in the masonry
connected that they may be properly joined for work. May the general contractor be heard to assert
venue purposes, under the Stockyards rule. that it has proved a cause of action for breach of
contract against the subcontractor as against its own
2. Proof of Cause of Action against Resident
judicial admissions that the building was
Defendant
completed?
The problem in alternative causes of action under
subdivision 4 lies not so much in the requirement of We resolve [**13] this difficulty in the light of the
an allegation of a properly joinable cause of action reasoning behind the __judicially-imposed
against the nonresident defendant as in the
requirement of proof of a cause of action against ‘the resident defendant. The purpose of this
the resident defendant at the venue hearing. [**11]
If the alleged liability of one defendant is
alternative in the sense that it is contingent on the theory is that [*381] proof of a cause of action
nonliability of the other, then proof of a cause of
action against one must negate liability of the other.
Thus, paradoxically, in such a case, plaintiff must fraudulently or collusively for the purpose of
prove by a preponderance of the evidence facts ‘maintaining venue against the nonresident
negating the liability of the nonresident defendant
against whom he is seeking to establish venue. See
Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91
(1935). This result is consistent with Stockyards, We conclude that the evidence in this case is
since in that case evidence negating liability of the sufficient to support a finding of good-faith joinder
nonresident defendant was held not to defeat venue of the resident defendant. The evidence at the
in the county of suit. venue hearing shows the elements of the general
contractor's cause of action against the
Even more paradoxical is a case like the present, in
nonresidential owner, the owner's testimony
which the plaintiff alleges a primary claim against
concerning deficiencies in the masonry work and
the nonresident defendant and only an alternative or
his claim against the general contractor for such
contingent claim against the resident defendant. > If
completed, but we conclude that the general contractor should not be
S Theoretically the general contractor may avoid this difficulty by required to take this position when his own evidence will show that
alleging his primary claim against the subcontractor for breach of the the contract is complete and proof of breach of contract by the
subcontract and alleging in the alternative a claim against the owner subcontractor must depend on the adverse evidence offered by the
for full contract price in the event the contract was found to be owner.
CH MTV (reply) - pg. 14
EXHIBIT 2 Page 5 of 6
532 S.W.2d 375, *381; 1975 Tex. App. LEXIS 3236, **13
deficiencies, and the contingent liability of the avoid a multiplicity of suits. In this connection we
masonry subcontractor to the general contractor in note that the test of joinder of actions for venue
the event the issue of completion of the masonry purposes under subdivision 4 differs from the test
work should be ultimately resolved in favor under subdivision 29a. Under subdivision 29a,
of [**14] the owner. Although counsel for the which applies when none of the defendants is a
owner suggests that the general contractor and the resident of the county, the test is severability, based
subcontractor have colluded to fix venue in Dallas on the strict concept of "necessary parties," and no
County, the evidence establishes that the general consideration is given to the problem of a
contractor has a real and legitimate interest in multiplicity of suits. Union Bus Lines v. Byrd, 142
joining the subcontractor so as to protect itself Tex. 257, 177 S.W.2d 774, 776 (1944). On the
against loss in the event the masonry work is found other hand, under subdivision 4, which applies
to be incomplete. Consequently, we hold that proof when at least one of the defendants is a resident of
of this contingent liability is sufficient to establish the county, [**16] the broader "proper party" test
the good faith of the general contractor in joining is used, and that test is defined in terms of avoiding
the subcontractor in this suit. a multiplicity of suits. Stockyards National Bank v.
Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302
Affirmed. (1936). Although Stockyards dealt with actions by
ON MOTION FOR REHEARING (December 31, one plaintiff against more than one defendant, we
1975)
Preview
FILED 5/9/2023 11:40 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Debra Clark DEPUTY CAUSE NO. DC-23-01657 HUNTER BRIAN and SHELBY SCOTT, IN THE DISTRICT COURT individually and as next friends of L.F.B., a minor, Vv. D’ANDRA D. BINGHAM, M.D.; DALLAS COUNTY, TEXAS COLLOM & CARNEY CLINIC ASSOCIATION; CHRISTUS HEALTH ARK-LA-TEX d/b/a CHRISTUS ST. MICHAEL HEALTH SYSTEM; CHRISTUS HEALTH; SUSAN ELIZABETH KEENEY, M.D.; and PEDIATRIX MEDICAL SERVICES, INC., § d/b/a PEDIATRIX MEDICAL GROUP OF § TEXAS § 134TH JUDICIAL DISTRICT REPLY IN SUPPORT OF DEFENDANT CHRISTUS HEALTH’S MOTION TO TRANSFER VENUE Defendant CHRISTUS Health (“CH”) files this reply in support of its Motion to Transfer Venue. BACKGROUND This is a medical malpractice case relating to Shelby Scott’s care in February 2021 at CHRISTUS Health Ark-La-Tex (“CH ALT”) d/b/a CHRISTUS St. Michael Health System (“CHRISTUS St. Michael’) located in Texarkana, Bowie County, Texas. Plaintiffs’ claim is governed by Chapter 74 of the Texas Civil Practice and Remedies Code. CH ALT and CH are nonprofit corporations and are affiliated with each other. The damages cap under Ch. 74 includes members (CH) and affiliates (CH ALT) of health care providers and physicians. Plaintiffs have sued CHRISTUS St. Michael and CH (along with others) for medical negligence under direct and vicarious theories of liability. See, Plaintiffs’ Original Petition, 4 CH MTV (reply) - pg. 1 7.05-7.14, pages 11-15.” Plaintiffs allege that the health care providers failed to properly manage Shelby Scott’s and L.F.B.’s care in the labor and delivery unit at CHRISTUS St. Michael which they claim caused L.F.B. to suffer a hypoxic-ischemic injury. Specially, Plaintiffs claim: 1 Dr. Bingham and the nursing staff of CHRISTUS St. Michael, including RN Doxey failed to discontinue Pitocin (and not thereafter restart it) when the fetal heart tracing was Category II with observable recurrent decelerations; RN Doxey failed to notify the neonatal resuscitation team to be present for L.F.B.’s delivery; Dr. Bingham failed to ensure that the neonatal resuscitation team was present prior to L.F.B.’s birth as she would have suffered less hypoxic-ischemic injury; CHRISTUS St. Michael failed in the development, training, education, and enforcement of the chain of command policy; and CHRISTUS St. Michael failed in the training and supervision of the nursing staff on fetal monitoring. It is undisputed that at all times relevant to Shelby Scott’s care at CHRISTUS St. Michael, CH was not licensed to provide health care, did not provide health care to Shelby Scott, did not employ those who provided such care, did not make any clinical decisions, and that the clinical policies relating to Shelby Scott’s care were policies of CHRISTUS St. Michael and not CH. See, Affidavit of Kenneth Cunningham, Exhibit 1 @ 4 3(e) (pg. 9) filed with the Motion to Transfer Venue and attached to this reply. Nevertheless, Plaintiffs sued CH for the sole and improper purpose of securing venue in Dallas County. The Motion to Transfer Venue should be granted because: 1 There is no reasonable possibility that Plaintiffs will prevail on the merits against CH because: a. CH was not licensed to provide health care, did not provide health care to Shelby Scott, did not employ those who provided such care, and did not make any clinical decisions relating to her care. The clinical policies relating to Shelby Scott’s care were policies of CHRISTUS St. Michael and not CH. CH is not a real and substantial “CH requests the Court to take judicial notice of the pleadings on file in this cause pursuant to Rule 201(b)(2) of the Texas Rules of Evidence. CH MTV (reply) - pg. 2 party and is being sued to secure venue in Dallas County, Texas. That is unjust to CH and to the other Defendants who should be judged by their peers in Texarkana, Bowie County, Texas where the care was provided. Exhibit 1 @ { 4 (pgs. 9-10). CH is immune from liability for the obligations of CHRISTUS St. Michael. See TEX. BUS. ORG. CODE § 22.152. It is inconvenient for the Defendants and witnesses for this case to remain in Dallas County, Texas because the care was provided in Bowie County, Texas and there is no reasonable possibility that Plaintiffs will prevail on the merits against CH. Dallas County, Texas is an inconvenient venue which will place economic and personal hardship on the Defendants and witnesses. Exhibit 1 @ 4 5 (pg. 10). In the interest of justice, and for the convenience of the Defendants and witnesses, Defendants request that this matter be transferred to Bowie County, Texas. PLAINTIFFS’ RESPONSE TO MOTIONS TO TRANSFER VENUE A, Plaintiffs are required to prove a bona fide cause of action against CH. Plaintiffs mistakenly claim that CH’s challenge of their claims is not permitted when moving to transfer venue. CH is not challenging Plaintiffs’ claims against the non-resident Defendants but rather is challenging their claims against CH, the resident defendant. Proof of a cause of action against the resident defendant is necessary to establish that the resident defendant is not joined fraudulently for the purpose of maintaining improper venue. Von Scheele v. Kugler-Morris General Contractors, Inc., 532 S.W. 2d 375, 380-81 (Tex. App. — Dallas 1975, writ dism’d., w.o.j.) Exhibit 2 (pg. 14). The purpose of this judicially imposed requirement is to establish the good faith of the plaintiff in joining the resident defendant. /d. See also, Stockyards National Bank v. Maples, 127 Tex. 633, 638-40 (1936) (... such ruling is necessary because any less strict requirements would render the valuable right of a defendant to be sued in the county of his residence too easily denied to him by the simple allegations of his adversary, perhaps never intended to be proved.) Exhibit 3 (pg. 20); Kirksey v. Warren, 348 S.W.2d 33, 36 CH MTV (reply) - pg. 3 (Tex. Civ. App. — Dallas 1961, no writ) Exhibit 4 (pg. 25); Helland v. Western Constr. Co., 516 S.W.2d 437, 441 (Tex. App. — San Antonio 1974, no writ)(Because agent of disclosed principal had no liability for contract claim and therefore there was no bona fide claim against him, joinder of agent to maintain venue was error and required reversal). Exhibit 5 (pg. 30). Plaintiffs have sued CH for direct and vicarious theories of liability. There is no reasonable possibility that the Plaintiffs will prevail on the merits against CH under a direct claim because CH was not licensed to provide health care, did not provide health care to Shelby Scott, did not make any clinical decisions relating to her care, did not employ those who provided such care or provide clinical policies relating to his care. The clinical policies relating to Shelby Scott’s care were policies of CHRISTUS St. Michael and not CH. Exhibit 1 @ § 3(e) (pg. 9). There is also no reasonable possibility that the Plaintiffs will prevail on the merits against CH under a vicarious theory of liability because CH is immune from liability for the obligations of CHRISTUS St. Michael. As a matter of law, CH is not liable for the obligations of CHRISTUS St. Michael. See TEX. BUS. ORG. CODE § 22.152 which provides: Sec. 22.152. IMMUNITY FROM LIABILITY. The members of a corporation are not personally liable for a debt, liability, or obligation of the corporation. It is undisputed that at all times relevant to Plaintiffs’ claims, CH ALT was a non-profit corporation affiliated with CH. Exhibit 1 @ 4§ 3(a), (f) (pg. 9). Nonprofit corporations have members as owners as opposed to shareholders in a for-profit setting. At all times relevant to Plaintiffs’ claims, CH was the sole member of CHRISTUS Northeast Texas Health System Corporation and CHRISTUS Northeast Texas Health System Corporation was the sole member of CH ALT which owned, operated, and did business as CHRISTUS ST. Michael in Bowie County. Id. The sole reason for suing CH is to establish venue in Dallas County even though, as a CH MTV (reply) - pg. 4 matter of law, CH cannot be held liable for the obligations of CHRISTUS St. Michael and CH was not involved in Shelby Scott’s care. All of the persons who provided care to Shelby Scott did so in Bowie County, the alleged incident occurred in Bowie County, and the vast majority of witnesses are health care providers who reside in or near Bowie County. Therefore, Plaintiffs cannot prove a bona fide cause of action against CH under a direct or vicarious theory of liability. Consequently, the attempt to maintain venue in Dallas County is an inappropriate attempt to deprive all Defendants of the proper venue in this case through a fraudulent joinder of parties. Dallas County is not the proper venue of this action. Pursuant to applicable law, venue is proper in Bowie County and the Motion to Transfer Venue should be granted. In the interest of justice, and for the convenience of the Defendants and witnesses, Defendants request that this matter be transferred to Bowie County, Texas. B. Plaintiffs ignore uncontroverted affidavit testimony of Regional General Counsel. Venue is proper in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred, or the county of the defendant’s principal office in this state if the defendant is not a natural person. TEX. Civ. PRAC. & REM. CODE §§ 15.002(a)(1) and (3). “Principal office” means the location in which the decision makers for the organization within this state conduct the daily affairs of the organization. TEX. CIv. PRAC. & REM. CODE §§ 15.001(a). Plaintiffs claim that CH has not demonstrated the need for transfer based on convenience and has not demonstrated the requisite economic and personal hardships needed to justify changing venue for convenience. However, Plaintiffs ignore the uncontroverted affidavit testimony of the Regional General Counsel who established that the principal offices and decision makers who conduct the daily affairs of CHRISTUS St. Michael were located in Bowie County, Texas when CH MTV (reply) - pg. 5 Shelby Scott was treated. Exhibit 1 @ { 3(b) (pg. 9). The decision makers, medical care, hospital staff, and witnesses were located in Bowie County and not in Dallas County and Plaintiffs do not dispute that Plaintiffs reside in Bowie, County, Texas (Petition, page 2, {§ 2.01, 2.02), Defendant Dr. Bingham resides in Bowie County, Texas (/d., page 2, 4 2.03), Defendant Dr. Keeney resides in Bowie County, Texas (/d., page 3, § 2.07), and that Shelby Scott was admitted to CHRISTUS St. Michael (Id., pages 6, 9, §9 6.02, 6.13). C Plaintiffs’ claim that CH failed to present evidence of inconvenience is untrue. When a defendant specifically denies venue facts as CH has done here, the plaintiff must support her pleadings with prima facie proof. Jaska v. Tex. Dep’t. of Protective & Regulatory Servs., 106 S.W.3d 907, 910 (Tex. App. — Dallas 2003, no pet). Exhibit 6 (pg. 33). Plaintiffs claim that CH has failed to present particularized evidence of any economic or personal hardship that would justify transferring the case based on convenience. This is incorrect because the affidavit testimony of the Regional General Counsel established that the principal office for CHRISTUS St. Michael was located in Bowie County when Shelby Scott was treated. Exhibit 1 @ {¥ 3(a), (b) (pg. 9). The decision makers, medical care, hospital staff, and witnesses were located in Bowie County and not Dallas County. Plaintiffs also ignore the affidavit testimony that the decision makers who oversaw the daily affairs for CHRISTUS St. Michael were located in Bowie County, the decision makers for health care were located in Bowie County, CHRISTUS St. Michael had complete authority over the day-to-day operations relating to patient care, and that decisions regarding Shelby Scott’s care were made by her treating physicians and the staff of CHRISTUS St. Michael. Exhibit 1 @ 4 3(b)-(d) (pg. 9). Plaintiffs’ argument that CH has not shown economic and personal hardship is untrue and completely disregards the uncontroverted affidavit testimony. Plaintiffs’ sole and improper basis for suing CH is to establish venue in Dallas County. CH MTV (reply) - pg. 6 D. Recently, a Dallas court has transferred venue out of Dallas County where fraudulent joinder, inconvenience, and injustice were alleged. On April 7, 2023, a Dallas court transferred venue out of Dallas County to Anderson County where the decision makers, medical care, health care providers, and witnesses were located. See, Declaration of Lisa Alvarado and Exhibits 7 and 8 (pgs. 37-42). The court granted the motion to transfer venue for an affiliate of CH, a clinic, and physician. In that case, fraudulent joinder, injustice and inconvenience were argued. WHEREFORE, CHRISTUS Health prays that the Court transfer this case to Bowie County, Texas, and for such other and further relief, both general and special, at law or in equity, to which it may be justly entitled. Respectfully submitted, SHANNON, MARTIN, FINKELSTEIN, ALVARADO & DUNNE, P.C. 1001 McKinney St., Suite 560 Houston, Texas 77002 Tel: (713) 805-5241 Fax: (713) 752-0337 lalvarado@smfadlaw.com By:/s/ Lisa Alvarado Elizabeth D. (Lisa) Alvarado Texas Bar No. 01125980 Attorneys for Defendant CHRISTUS Health CERTIFICATE OF SERVICE I certify that on May 9, 2023, a true and correct copy of the foregoing was served upon all attorneys of record in accordance with the Texas Rules of Civil Procedure. /s/ Lisa Alvarado Elizabeth D. (Lisa) Alvarado CH MTV (reply) - pg. 7 EXHIBIT 1 CAUSE NO. DC-23-01657 HUNTER BRIAN and SHELBY SCOTT, § IN THE DISTRICT COURT individually and as next friends of L.F.B., § a minor, Vv, § D’ANDRA D. BINGHAM, M.D.; DALLAS COUNTY, TEXAS COLLOM & CARNEY CLINIC ASSOCIATION; CHRISTUS HEALTH ARK-LA-TEX d/b/a CHRISTUS ST. MICHAEL HEALTH SYSTEM; CHRISTUS HEALTH; SUSAN ELIZABETH KEENEY, M.D.; and PEDIATRIX MEDICAL SERVICES, INC., § d/b/a PEDIATRIX MEDICAL GROUP OF § TEXAS § 134TH JUDICIAL DISTRICT AFFIDAVIT OF KENNETH CUNNINGHAM STATE OF TEXAS § § COUNTY OF DALLAS § Before me, the undersigned authority, did personally appear Kenneth Cunningham, who being duly sworn, stated, and deposed under oath the following: 1 “My name is Kenneth Cunningham. I am a resident of the State of Texas. I am competent to make this affidavit, I am making this affidavit in support of the Motion to Transfer Venue of Defendant CHRISTUS Health. I am a Vice President and Regional General Counsel for CHRISTUS Health. As part of my duties as Vice President and Regional General Counsel, I am familiar with the operations of CHRISTUS Health and its affiliate, CHRISTUS Health Ark-La-Tex d/b/a CHRISTUS St. Michael Health System. I am authorized by CHRISTUS Health and CHRISTUS Health Ark-La-Tex to make this affidavit. I am familiar with the location, principal office, and decision makers for CHRISTUS Health Ark-La-Tex d/b/a CHRISTUS St. Michael Health System. As a result of my position, and my own personal knowledge, [ am familiar with, and understand the relationship between CHRISTUS Health and CHRISTUS Health Ark-La-Tex d/b/a CHRISTUS St. Michael Health System. In this position, I have personal knowledge of the facts stated herein and they are true and correct. Shelby Scott’s care and treatment that is the subject of this lawsuit occurred at CHRISTUS St. Michael Health System in February 2021. At all times relevant to Shelby Scott’s care and treatment at CHRISTUS St. Michael Health System: CH MTV (reply) - pg. 8 EXHIBIT 1 CHRISTUS Health Ark-La-Tex was a Texas nonprofit corporation with its principal office and place of business located in Texarkana, Bowie County, Texas, and it was the sole owner, operator, and licensee of, and did business as, CHRISTUS St. Michael Health System. The principal office of CHRISTUS Health Ark-La-Tex was located in Texarkana, Bowie County, Texas and has never been located in Dallas County, Texas. The decision makers who conducted the daily affairs of CHRISTUS St. Michael Health System were located in Texarkana, Bowie County at 2600 St. Michael Drive, Texarkana, Texas 75501. The location for all meetings of the Board of Directors for CHRISTUS Health Ark-La-Tex was in Tyler, Smith County, Texas, and did not meet in Dallas County, Texas. In addition to the Board of Directors, the other decision makers who oversaw the daily affairs of CHRISTUS St. Michael Health System (President, Chief Medical Officer, and Chief Nursing Officer) were located in Texarkana, Bowie County, Texas CHRISTUS Health Ark-La-Tex had complete authority over the day-to-day operations of CHRISTUS St. Michael Health System relating to patient care. Decisions regarding the care provided to Shelby Scott were made by her treating physicians and the staff of CHRISTUS St. Michael Health System and her medical records were maintained at CHRISTUS St. Michael Heaith System. CHRISTUS Health was not licensed to provide health care, did not provide health care to Shelby Scott, did not employ those who provided such care, and did not make any clinical decisions relating to her care. The clinical policies relating to Shelby Scott’s care were policies of CHRISTUS St. Michael Health System and not CHRISTUS Health. A health care provider- patient relationship did not exist between CHRISTUS Health and Shelby Scott. CHRISTUS Northeast Texas Health System Corporation was the sole member of CHRISTUS Health Ark-La-Tex, and CHRISTUS Health was the sole member of CHRISTUS Northeast Texas Health System Corporation. There is no reasonable possibility that the Plaintiffs will prevail on the merits against CHRISTUS Health because CHRISTUS Health was not licensed to provide health care, did not provide health care to Shelby Scott, did not employ those who provided such care, and did not make any clinical decisions relating to her care. The clinical policies relating to Shelby Scott’s care were policies of CHRISTUS St. Michael Health System and not CHRISTUS Health. CHRISTUS Health is not a real and substantial party and is being sued to secure venue in Dallas County, Texas. That is unjust to CHRISTUS Health and to the CH MTV (reply) - pg. 9 EXHIBIT 1 other Defendants who should be judged by their peers in Bowie County, Texas where the care was provided. Jn the interest of justice, CHRISTUS Health requests that this matter be transferred to Bowie County, Texas. Itis inconvenient for the Defendants and witnesses for this case to remain in Dallas County, Texas because the care was provided in Bowie County, Texas and there is no reasonable possibility that the Plaintiffs will prevail on the merits against CHRISTUS Health. Dallas County, Texas is an inconvenient venue which will place economic and personal hardship on the Defendants and witnesses, For the convenience of the Defendants and witnesses, CHRISTUS Health requests that this matter be transferred to Bowie County, Texas. Further affiant sayeth not.” KENNETH CUD IGHAM, J.D. Vice President/Regional General Counsel CHRISTUS Health SWORN TO AND SUBSCRIBED BEFORE ME on March Ss , 2023 to certify which witness my hand and seal of office. YiSen nirw nt ty, Notary Public, State of Texas sy \S 44% Sy Y Pi Fe on™ “y Ny “ny+ Haars CH MTV (reply) - pg. 10 EXHIBIT 2 @ LexisNexis’ 6 Neutral As of: March 3, 2023 5:20 PM Z Von Scheele v. Kugler-Morris General Contractors, Inc. Court of Civil Appeals of Texas, Fifth District, Dallas November 13, 1975 No. 18695 Reporter 532 S.W.2d 375 *; 1975 Tex. App. LEXIS 3236 ** contractor also sued the masonry subcontractor, Edgar Von Scheele, Appellant v. Kugler-Morris Dee Brown Masonry, Inc., a resident of Dallas General Contractors, Inc., et al., Appellees County, alleging in the alternative that if the owner Subsequent History: [**1] Dismissed w.o,j. was correct in refusing to accept the work of the subcontractor and was entitled to any offset to the Writ of error dismissed for want of jurisdiction, sum owing under the general contract because of 04/28/1976 the subcontractor's work, then the general Rehearing of writ of error overruled, 06/09/1976 contractor was entitled to judgment against the subcontractor for the amount of any such offset. ! Prior History: From a District Court of Dallas County, Texas. [**2] The owner, who resides in Bexar County, filed a plea of privilege. The general contractor's Counsel: For Appellant: Ralph Langley - San controverting plea alleges that the suit may be Antonio, IX, maintained against the owner in Dallas County For Appellee: Robert S. Addison - Dallas, Texas. under Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 4 David Musslewhite - Dallas, Texas. (Vernon 1964) because of the subcontractor's residence in Dallas County. The nonresident Judges: Clarence A. Guittard, Associate Justice. defendant contends that his plea of privilege should have been sustained because the allegations of the Opinion by: GUITTARD general contractor's alternative claim against the resident subcontractor are insufficient to meet the Opinion requirements of proving a bona fide claim against the resident defendant under subdivision 4, and are [*378] merely conjecture, based on what the [*377] This appeal from an order overruling a plea of privilege exemplifies the intricacies peculiar to Texas venue law. The controversy concerns ) The litigation began as a suit by the masonry subcontractor against the general contractor and owner, and the general coniractor’s construction of the Oak Hills Motor Inn in Bexar pleading is in the form of a cro laim against the owner and a County, Texas. The general contractor, Kugler- counterclaim against the subcontractor. Since our disposition of the Morris General Contractors, Inc., sued the owner, venue question turns on the general contractor's cross-claim and Edgar Von Scheele, in Dallas County, alleging counterclaim, the subcontractor’s action will not be mentioned further. Neither do we find it necessary to discuss additional claims completion of the project and the owner's liability of the general contractor against the owner and against two other for the balance of the contract price. The general subcontractors CH MTV (reply) - pg. 11 EXHIBIT 2 Page 2 of 6 532 S.W.2d 375, *378; 1975 Tex. App. LEXIS 3236, **2 owner might do in the lawsuit. Although this two may be joined to avoid a multiplicity of suits, contention seems to confuse the question of proper and (2) plaintiff must introduce evidence at the joinder of the claims against the two defendants venue hearing sufficient to establish the cause of with the question of sufficiency of proof of a cause action alleged against the resident defendant. These of action against the resident defendant, we treat it requirements are justified on the theory that a as raising both questions. Thus, the questions to be defendant ought not to be required to litigate in a decided may be stated as follows: (1) Is a claim distant county unless he is properly joined in a suit against a resident defendant properly joined with a against a resident defendant and unless the plaintiff claim against a nonresident defendant if the claim demonstrates by evidence his good faith in suing against the resident is alleged only as an alternative the resident defendant. Jd. at 1303. to the [**3] claim against the nonresident? (2) Is proof of the alternative or contingent liability of the The two nonstatutory requirements summarized in resident defendant sufficient to establish that Stockyards have led to much litigation because the plaintiff has a bona fide cause of action against that law rarely defines with precision the causes of defendant? We answer both questions in the action that may properly [**5] be joined or the affirmative, and, accordingly, we affirm the order facts that must be alleged and proved to establish a overruling the plea of privilege. cause of action for venue purposes. Although opinions resulting from almost a hundred years of 1. Joinder of Causes of Action litigation under subdivision 4 may be found in the South Western Reporter, and are annotated in more Subdivision 4 of article 1995 provides: "If two or than a hundred columns of fine print in Volume 5 more defendants reside in different counties, suit of Vernon's Texas Revised Civil Statutes may be brought in any county where one of the Annotated, they leave a number of problems defendants resides." Although this language is unresolved, including the problem raised by admirably simple, it has spawned a plethora of alternative claims against different defendants. Is interlocutory appeals which have produced a an alternative claim, even if it arose out of the same number of conflicts in the decisions. ? These "go transaction or occurrence, intimately conflicts have not arisen from any complexity or connected" with the primary claim that the two uncertainty in the statute, but rather from claims may be joined to avoid a multiplicity of suits requirements which the courts have added to under the test stated in Stockyards protect the defendant's "sacred right" to a trial in the county of his residence. The only venue fact Some of the courts of civil appeals have held that specified in subdivision 4 is the residence of one alternative causes of action against different defendant in the county of suit. Texas courts, defendants are not joinable for venue purposes however, as stated in Stockyards National Bank v. because they are "separate and distinct" causes of Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302 action and are not based on any joint liability or (1936), have imposed two additional requirements: “community of responsibility" between the (1) plaintiff must allege [**4] a joint cause of defendants. McAlister v. City of Mertens, 43 action against the resident and non-resident $.W.2d 651, 652 (Tex. Civ. App. -- Waco 1931, no defendants, or a cause of action against the resident writ); Danciger v. Smith, 229 S.W. 909, 910 (Tex. defendant "so intimately connected" with the cause Civ. App. -- Dallas 1921, [**6] no writ). [*379] of action against the nonresident defendant that the On this theory, if the cause of action alleged against a nonresident defendant is primary and that alleged against the resident defendant is alternative or ? The ses are reviewed in | McDONALD, TEXAS CIVIL contingent, the two claims have been held not PR: 3 IN DISTRICT AND COUNTY COURTS § 4.10.1 ef properly joinable for venue purposes. Windham v. seq. (rev. ed. 1965) CH MTV (reply) - pg. 12 EXHIBIT 2 Page 3 of 6 532 S.W.2d 375, *379; 1975 Tex. App. LEXIS 3236, **6 Alpine Independent School District, 478 S.W.2d Windham decision, in Brown-McKee, Inc. v. City of 861, 865 (Tex. Civ. App. -- Amarillo 1972, writ Andrews, 501 S.W.2d 714, 717 (Tex. Civ. App. -- dism'd); Shaver v. Hughes, 214 S.W.2d 176, 178 Amarillo 1973, no writ), which involved alternative (Tex. Civ. App. -- Fort Worth 1948, no writ). claims by a general contractor against a nonresident Windham, which is probably the strongest case in owner and against the resident assignee of a support of the nonresident owner's contention here, subcontractor. + involved a claim on two warrants against a [**9] The "community of responsibility" test nonresident school district and an alternative claim against a resident securities dealer for restitution in applied in Windham, and some of the other cases the event the warrants should be declared invalid. above cited, was recently disapproved by this court The Amarillo court of civil appeals held that in Angelo v. Chemical Bank & Trust Co., 529 joinder of these claims was not proper under $.W.2d 783 (Tex. Civ. App. -- Dallas, 1975), in subdivision 4 because of lack of a "community of which we held that a more appropriate test of responsibility" between the defendants. proper joinder under subdivision 4 was the existence of a common question of fact. The On the other hand, in a case more nearly like that primary claim in Angelo, as distinguished from the now before us than any of those above cited, the present case, was against the resident defendant and Corpus Christi court of civil appeals has held that liability of the nonresident was alleged in the alternative allegations are sufficient to maintain alternative. We now hold, in accordance with the venue. Bee County Cooperative Ass'n v. [**7] decision of the Corpus Christi court of civil appeals Dominy, 489 S.W.2d 418, 421 (Tex. Civ. App. -- in Bee County, supra, that the same test applies to a Corpus Christi 1972, no writ). In that case, as in case in which the liability of the nonresident this, a general contractor alleged a primary cause of defendant is primary and that of the resident action against the non-resident owner for money [*380] defendant is alternative or contingent. The due under the contract and an alternative cause of same interest in avoiding multiplicity of suits ists action against a subcontractor for breach of contract in both types of case, and also the same possibility in the event any deficiency should be found in the that a plaintiff, though clearly entitled to recover subcontractor's work. The owner contended, as from one of two defendants, may be denied relief does the owner here, that the claim against the because the same issue of fact may be found subcontractor was "an unaccrued cause of action against him both affirmatively and negatively if he which does not satisfy the requirements of is forced to litigate in two different suits. Thus, Subdivision 4," but the court held that the cause of in [**10] the present case, each of the causes of action was not hypothetical because the ultimate action alleged by the general contractor arises from issue determining whether owner or subcontractor the same transaction or series of transactions, was liable was whether the project was properly namely, the construction of the Oak Hills Motor completed in accordance with the contract. ? [**8] This decision was followed by the Amarillo 4For other cases approving joinder for venue purposes of separate claims against different defendants arising out of the same court of civil appeals, without referring to its transaction or series of transactions on the theory of avoiding a multiplicity of suits, though not involving the same cause of action or a "community of responsibility," see Atlas Roofing Co. v. Hall, 2 The owner's alternative allegation also asserted that if there were 150 Tex. 611, 245 S.W.2d 477 (1952); Meeker v. W & W. Well any deficiencies in the work, they were the result of the combined Servicing Co., 318 S.W.2d 678, 681 (Tex. Civ. App. -- San Antonio actions of the subcontractor and the owner. This allegation does not 1958, no writ); Taylor v. Jones, 244 $.W.2d 371 (Tex. Civ. App. -- serve to distinguish that case from the present because here, also, the Texarkana 1951, no writ); and Herold v. Texas Venetian Blind Co... general contractor alleges in the alternative that the owner was guilty 203 S.W.2d 691, 692 (Tex. Civ. App. -- Dallas 1947), mand. of “continual interference with the subcontractor and their overruled with apparent approval of this holding in Texas Venetian performance on the job." Blind Co. v. Bond, 146 Tex. 212, 205 S.W.2d 977 (1947). CH MTV (reply) - pg. 13 EXHIBIT 2 Page 4 of 6 532 S.W.2d 375, *380; 1975 Tex. App. LEXIS 3236, **10 Inn, and in each the controlling issue of fact is the general contractor is required to establish a performance of the masonry subcontract. If a Bexar breach of contract against the subcontractor in County jury, in a suit between the general order to maintain venue of the suit against the contractor and the owner, finds that the masonry nonresident owner, the general contractor's proof at work was defective, and a Dallas County jury, in a the venue hearing to that extent must be contrary to suit between the general contractor and the its primary position in the case. Thus, in this case, masonry subcontractor, finds that the masonry the general contractor alleged in its [**12] primary work was properly done, then the general claim that the contract, including the masonry contractor mustsuffer a loss based on the work, was completely performed, and its officer so subcontractor's default, but will be unable to recoup testified at the venue hearing. To show a breach by that loss from the subcontractor. Hence, we hold the subcontractor it introduced the testimony of the that the two causes of action are so intimately owner concerning deficiencies in the masonry connected that they may be properly joined for work. May the general contractor be heard to assert venue purposes, under the Stockyards rule. that it has proved a cause of action for breach of contract against the subcontractor as against its own 2. Proof of Cause of Action against Resident judicial admissions that the building was Defendant completed? The problem in alternative causes of action under subdivision 4 lies not so much in the requirement of We resolve [**13] this difficulty in the light of the an allegation of a properly joinable cause of action reasoning behind the __judicially-imposed against the nonresident defendant as in the requirement of proof of a cause of action against ‘the resident defendant. The purpose of this the resident defendant at the venue hearing. [**11] If the alleged liability of one defendant is alternative in the sense that it is contingent on the theory is that [*381] proof of a cause of action nonliability of the other, then proof of a cause of action against one must negate liability of the other. Thus, paradoxically, in such a case, plaintiff must fraudulently or collusively for the purpose of prove by a preponderance of the evidence facts ‘maintaining venue against the nonresident negating the liability of the nonresident defendant against whom he is seeking to establish venue. See Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935). This result is consistent with Stockyards, We conclude that the evidence in this case is since in that case evidence negating liability of the sufficient to support a finding of good-faith joinder nonresident defendant was held not to defeat venue of the resident defendant. The evidence at the in the county of suit. venue hearing shows the elements of the general contractor's cause of action against the Even more paradoxical is a case like the present, in nonresidential owner, the owner's testimony which the plaintiff alleges a primary claim against concerning deficiencies in the masonry work and the nonresident defendant and only an alternative or his claim against the general contractor for such contingent claim against the resident defendant. > If completed, but we conclude that the general contractor should not be S Theoretically the general contractor may avoid this difficulty by required to take this position when his own evidence will show that alleging his primary claim against the subcontractor for breach of the the contract is complete and proof of breach of contract by the subcontract and alleging in the alternative a claim against the owner subcontractor must depend on the adverse evidence offered by the for full contract price in the event the contract was found to be owner. CH MTV (reply) - pg. 14 EXHIBIT 2 Page 5 of 6 532 S.W.2d 375, *381; 1975 Tex. App. LEXIS 3236, **13 deficiencies, and the contingent liability of the avoid a multiplicity of suits. In this connection we masonry subcontractor to the general contractor in note that the test of joinder of actions for venue the event the issue of completion of the masonry purposes under subdivision 4 differs from the test work should be ultimately resolved in favor under subdivision 29a. Under subdivision 29a, of [**14] the owner. Although counsel for the which applies when none of the defendants is a owner suggests that the general contractor and the resident of the county, the test is severability, based subcontractor have colluded to fix venue in Dallas on the strict concept of "necessary parties," and no County, the evidence establishes that the general consideration is given to the problem of a contractor has a real and legitimate interest in multiplicity of suits. Union Bus Lines v. Byrd, 142 joining the subcontractor so as to protect itself Tex. 257, 177 S.W.2d 774, 776 (1944). On the against loss in the event the masonry work is found other hand, under subdivision 4, which applies to be incomplete. Consequently, we hold that proof when at least one of the defendants is a resident of of this contingent liability is sufficient to establish the county, [**16] the broader "proper party" test the good faith of the general contractor in joining is used, and that test is defined in terms of avoiding the subcontractor in this suit. a multiplicity of suits. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302 Affirmed. (1936). Although Stockyards dealt with actions by ON MOTION FOR REHEARING (December 31, one plaintiff against more than one defendant, we 1975)