Letter,Correspondence: ATLAS OPERATING LLC vs. REDEMPTION OIL & GAS LLC

On October 16, 2020 a Letter,Correspondence was filed involving a dispute between Atlas Operating Llc, Bayshore Energy Tx Llc, and Redemption Oil & Gas Llc, for Debt/Contract - Debt/Contract in the District Court of Harris County.

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1858 E. Main St. Attorneys and Counselors at Law 310 E. Nopal St.
Eagle Pass, Texas, 78852 www.lklawtx.com Carrizo Springs, Texas, 78834
: (830) 776-7644 Tel: (830) 876-9706
x: (830) 776-7636 Fax: (830) 776-7636
clongoria@lklawtx.com pkelly@lklawtx.com

January 19, 2021

Honorable Judge Christine Weems VIA E-FILE
Judicial District Court
201 Caroline, 14 Floor
Houston, Texas 77002

RE: Cause No. 2020-66475; Atlas Operating, LLC v. Redemption Oil & Gas, LLC, in the
Judicial District Court of Harris County, Texas

Honorable Judge Weems:

Prior to the filing of this letter brief with the Court, Defendant filed a Plea to the Jurisdiction
wherein the Defendant asserts Plaintiff lacks standing to bring this actionDefendant has requested
the Court dismiss the above suit for lack of subject matter jurisdiction. Defendant believes the
issue of jurisdiction is a precursor to taking any action in this case. Accordingly Defendant would
ask the Court to first determine whether it has subject matter jurisdiction before it rules on
Defendant’s Motion to Transfer Venue, because if Defendant’s Plea to the Jurisdiction is granted
by this Court, which the Defendant believes it should as a matter of law, the case would be
smissed and further proceedings would be rendered moot. Defendant believes that the Plea to
the Jurisdiction is pure question of law for the Court to determine and the Court may do so
without a hearing unless the Court determines that additional evidence is required to determine the
jurisdictional facts.

Should the Court deny Defendant’s Plea to the Jurisdiction, Defendant would supply the
following letter brief to the Court on the issue of venue:

The Court requested the parties in the above matter brief whether or not the Court had
authority to grant Defendant’s Motion to Transfer Venue and transfer the case to Bexar County,
Texas, a venue which was not requested in Defendant’s original Motion to Transfer Venue. Since
the hearing, Defendant has filed an Amended Motion to Transfer Venue in this cause, requesting
the Court transfer the matter to Dimmit County or alternatively, Bexar County, under the
appropriate venue statutes.

Plaintiff filed a etter brief on January 15, 2021 Plaintiff argues that the Amended Motion
to Transfer Venue is improper following the hearing on the parties’ motion pursuant to Tex. R.
Civ. P. 87. Defendant respectfully disagrees. An amended motion to transfer venue is timely filed
so long as the amended motion to transfer venue is filed prior to the Court ruling on the original
motion. Renzenberger, Inc. v. O’Bryant 1361620 4 (Tex.App.—Corpus Christi
Edinburg, 2005, no pet) citing In re Pepsico, Inc., 87 S.W.3d 787, 794 (Tex.App.Texarkana
Honorable Judge Christine Weems
January 19, 2021
Page 2

2002, no pet.). I have attached copies of both of the cited cases for the Court’s reference.
Accordingly, Defendant’s Amended Motion to Transfer Venuewas timely filed and Defendant’s
alternative request to transfer venue to Bexar County, is properly before the Court.

As argued at length during the initial hearing, the venue facts pled by Plaintiff establish
venue in Bexar County, not Harris County because all of the acts of Defendant which Plaintiff
complains of in its original petition, occurred in Bexar County, Texas. Accordingly, venue is
proper in Bexar County, Texas under the venue facts pled by Plaintiff.

Should you need additional information or require additional briefingon any issue, please
do not hesitate to contact me.

Please advise if the Court wishes to conduct a hearing on Defendant’s Plea to the
Jurisdiction.

Sincerely,

LONGORIA & KELLY, PLLC

By:___________________________________
Catrina Purcell Longoria

Cc: Christopher M. Hogan
VIA E FILE
Renzenberger, Inc. v. O'Bryant, Not Reported in S.W.3d (2005)
2005 WL 1361620

Ann. § 15.003(a) (Vernon Supp.2004–05). We reverse and
remand.
2005 WL 1361620
Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR A. Background
DESIGNATION AND SIGNING OF OPINIONS.
This case arises from an automobile accident that occurred
MEMORANDUM OPINION in Milam County. O'Bryant and Randy Daniels (“Daniels”),
Court of Appeals of Texas, another passenger in the vehicle, allege that they sustained
Corpus Christi–Edinburg. personal injuries in the accident. Both parties filed suit against
appellants in Brazoria County.
RENZENBERGER, INC., The Burlington
Northern and Santa Fe Railway Company, O'Bryant and Daniels are railroad workers employed by
and Samuel Grant Everson, Appellants, BNSF. Their cause of action arises under the Federal
Employers' Liability Act (“FELA”). See 45 U.S.C. § 51 et seq.
v. Suits brought under the FELA are subject to the mandatory
Cornelious O'BRYANT, Jr., Appellee. venue provisions set forth in section 15.018 of the civil
practice and remedies code. Tex. Civ. Prac. & Rem.Code Ann.
No. 13–05–00090–CV. § 15.018 (Vernon 2002). Section 15.018 provides, in relevant
| part:
June 9, 2005.
(b) All suits brought under the Federal Employers' Liability
On appeal from the 239th District Court of Brazoria County, Act ... shall be brought:
Patrick Edward Sebesta, J., Texas.
(1) in the county in which all or a substantial part of the
Attorneys and Law Firms events or omissions giving rise to the claim occurred;

Mainess Gibson and Sheryl S. Norman, Gibson & Associates, (2) in the county where the defendant's principal office in
Houston, for Appellants. this state is located; or

Clint Edwin McGuire, Youngdahl Law Firm, P.C., Sara L. (3) in the county where the plaintiff resided at the time the
Youngdahl, Attorney at Law, Friendswood, for Appellees. cause of action accrued.
Tex. Civ. Prac. & Rem.Code Ann. § 15.018(b) (Vernon 2002).
Before the Court En Banc1.
The petition filed by O'Bryant and Daniels asserts that venue
is proper as to Daniels under the FELA because he is a
MEMORANDUM OPINION resident of Brazoria County. As to O'Bryant, the petition
asserts that venue is proper in Brazoria County pursuant to the
Opinion by Justice HINOJOSA Joined by Chief Justice joinder provisions of section 15.003 of the civil practice and
VALDEZ and Justices CASTILLO and WITTIG. remedies code. Tex. Civ. Prac. & Rem.Code Ann. § 15.003
(Vernon Supp.2004–05). Section 15.003 provides, in relevant
*1 This is an accelerated interlocutory appeal under
part:
section 15.003(c) of the Texas Civil Practice and Remedies
Code. Tex. Civ. Prac. & Rem.Code Ann. § 15.003(c) (a) In a suit in which there is more than one plaintiff,
(Vernon Supp.2004–05). Appellants, Renzenberger, Inc. whether the plaintiffsare included by joinder, by
(“Renzenberger”), The Burlington Northern and Santa Fe intervention,because the lawsuit was begun by more
Railway Company (“BNSF”), and Samuel Grant Everson than one plaintiff,or otherwise, each plaintiffmust,
(“Everson”), appeal from an order of the trial court denying independently of every other plaintiff, establish proper
their motion to transfer venue and concluding that the joinder venue. If a plaintiff cannot independently establish
of appellee, Cornelious O'Bryant, Jr. (“O'Bryant”), in the proper venue, that plaintiff's part of the suit, including
underlying lawsuit is proper. See Tex. Civ. Prac. & Rem.Code

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1
Renzenberger, Inc. v. O'Bryant, Not Reported in S.W.3d (2005)
2005 WL 1361620

all of that plaintiff's claims and causes of action, must
be transferred to a county of proper venue or dismissed,
as is appropriate, unless that plaintiff, independently of
B. Standard of Review
every other plaintiff, establishes that:
We conduct an independent de novo review of the
(1) joinder of that plaintiff or intervention in the suit by
entire record of a trialcourt's section 15.003(a) joinder
that plaintiff is proper under the Texas Rules of Civil
determination. Tex. Civ. Prac. & Rem.Code Ann. § 15.003(c)
Procedure;
(1) (Vernon Supp.2004–05); Am. Home Prods. v. Clark, 38
*2 (2) maintaining venue as to that plaintiff in the county S.W.3d 92, 99 (Tex.2000); Surgitek v. Abel, 997 S.W.2d
of suit does not unfairly prejudice another party to the 598, 603 (Tex.1999). In conducting this review, the appellate
suit; court is not constrained solely to review the pleadings and
affidavits, but should consider the entire record, including any
(3) there is an essential need to have that plaintiff's claim evidence presented at the hearing. Surgitek, 997 S.W.2d at
tried in the county in which the suit is pending; and 603.

(4) the county in which the suit is pending is a fair and The plaintiffbears the burden of proof to establish prima
convenient venue for that plaintiff and all persons against facie proof of each joinder element. See id. at 602–03; Teco–
whom the suit is brought. Westinghouse Motor Co. v. Gonzalez, 54 S.W.3d 910, 913
Tex. Civ. Prac. & Rem.Code Ann. § 15.003(a) (Vernon (Tex.App.-Corpus Christi 2001, no pet.).If the defendant
Supp.2004–05). offers no rebuttal evidence, the inquiry is over. Surgitek, 997
S.W.2d at 603. However, if the defendant's joinder evidence
Appellants filed a motion to transfer O'Bryant's cause of rebuts the plaintiff'sprima facie proof, the trialcourt has
action to Tarrant County, the county in which the principal discretion to consider all available evidence to resolve any
office of BNSF islocated. Appellants specifically denied disputes that the parties' proof creates. Id. The trial court
O'Bryant's assertion that venue was proper in Brazoria County has discretion to allow a broader range of proof in making
under section 15.003 of the civil practice and remedies code. a section 15.003(a) joinder determination than it would in a
venue hearing. Id. Specifically, a trial court may allow the
O'Bryant filed a response with attached affidavits, deposition parties to offer testimony and may order limited discovery
excerpts, and responses to discovery requests. In the response, on the joinder elements if the trial court believes it would be
O'Bryant argued that he was properly before the court in useful to its determination. Id.
Brazoria County because he had established the four elements
necessary for joinder set forth in section 15.003(a). See
Tex. Civ. Prac. & Rem.Code Ann. § 15.003(a) (Vernon
Supp.2004–05). C. Analysis

*3 Appellants contend that O'Bryant did not meet his
Appellants later filed a reply and attached the investigating
burden of establishing all four elements required by section
police officer's accident report and an excerpt from the
officer'sdeposition. In the reply, appellants asserted that 15.003(a) for joinder.2 See Tex. Civ. Prac. & Rem.Code Ann.
pursuant to section 15.018, there are three counties of § 15.003(a) (Vernon Supp.2004–05). Specifically, appellants
proper venue in this case: (1) Milam, (2) Harris, and (3) argue that O'Bryant failed to meet his burden of proving an
Tarrant. See Tex. Civ. Prac. & Rem.Code Ann. § 15.018 “essential need” to have his case tried in Brazoria County.
(Vernon 2002). Appellants submitted the investigating police Because appellants concede that O'Bryant has satisfied
officer's accident report and deposition testimony as evidence elements (1), (2) and (4), we will limit our review to element
that: (1) the accident occurred in Milam County and (2) (3) of section 15.003(a).
O'Bryant resided in Harris County at the time of the accident.
Appellants requested the transfer of O'Bryant's cause of action The third element of section 15.003(a) requires that O'Bryant
to either Milam County, Harris County, or Tarrant County. establish an essential need to have his claim tried in
Following a hearing, the trial court denied appellants' motion Brazoria County. See Tex. Civ. Prac. & Rem.Code Ann. §
to transfer venue. This interlocutory appeal ensued. 15.003(a) (Vernon Supp.2004–05); Surgitek, 997 S.W.2d at
604; Gonzalez, 54 S.W.3d at 915. To prove an essential need,

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2
Renzenberger, Inc. v. O'Bryant, Not Reported in S.W.3d (2005)
2005 WL 1361620

he must show a compelling reason why he must be joined of section 15.003, O'Bryant refers us to our opinion in
in that county, and not merely that he has an essential need Teco–Westinghouse Motor Co. v. Gonzalez. In Gonzalez, we
to join with Daniels in order to pool resources. See Surgitek, found that when an indispensable witness, who worked in
997 S.W.2d at 604; Gonzalez, 54 S.W.3d at 915. He must Monterrey, Mexico, could not be available for a trialheld
establish that it was “indispensably necessary” to try his away from the state border, an essential need existed to
claim in Brazoria County. See Surgitek, 997 S.W.2d at 604 conduct the trial in Cameron County. 54 S.W.3d at 915–17.
(recognizing that the language of section 15.003 makes the Appellants counter that Gonzalez is distinguishable because
burden of proving proper joinder “very high”). Cameron County was the only county thatcould provide
Gonzalez with the availability of his indispensable witness,
O'Bryant argues thathe has an essentialneed to have his whereas in the instant case, Brazoria County is not the
case tried in Brazoria County because his key witness, only county that can ensure the availabilityof O'Bryant's
Daniels, is only available to testify in Brazoria County.3 The indispensable witness.
evidence offered by O'Bryant to establish his right to join the
Brazoria County lawsuit included his own affidavit, Daniels' Appellants assert that, under the FELA, O'Bryant has three
affidavit, the affidavit of his attorney, Everson's deposition, choices for proper venue: (1) Milam County, where the
and responses made by BNSF and Renzenberger to requests accident occurred; (2) Tarrant County, where BNSF has its
for admission. principal place of business; or (3) Harris County, O'Bryant's
county of residence at the time of the accident. See Tex. Civ.
In his affidavit, O'Bryant says that Daniels is an indispensable Prac. & Rem.Code Ann . § 15.018 (Vernon 2002). Appellants
witness because the facts in Daniels' case are the same facts contend that Daniels' affidavit declaring his unavailability
in his case. In his affidavit, Daniels states that as a result offails to rise to the level of prima facie evidence on the issue
the accident, he has had back surgery and is scheduled to have of unavailability. We agree.
surgery on his neck. Daniels states he is unable to work, his
wife is providing for the family, and he is assisting with the O'Bryant's claim that he has an “essential need” to try his
care of their children. Daniels states he does not have the case in Brazoria County is based on Daniels' affidavit that he
money to travel to Tarrant County and will not personally will not personally testify for O'Bryant if the case is moved
testify for O'Bryant if the case is moved to Tarrant County, to Tarrant County, or any other county, other than Brazoria
or any other county, other than Brazoria. Daniels also states County. However, we note that the Texas Rules of Civil
that he believes he is an indispensable witness for O'Bryant Procedure authorize litigants to subpoena witnesses to appear
because he was in the passenger seat of the van and can testify and give testimony at trial. See Tex.R. Civ. P. 176.2. A person
that Everson overcorrected the van, causing it to run off the may be required by subpoena to appear in a county that is
road. within 150 miles from where the person resides or is served.
See Tex.R. Civ. P. 176.3. Failure to obey a subpoena may
The affidavit of O'Bryant's attorney states that he represents be deemed contempt of the court from which the subpoena
both O'Bryant and Daniels in theirsuit against appellants, is issued and may be punished by fine or confinement, or
the case involves the same facts and same causes of both. See Tex.R. Civ. P. 176.8(a). Harris County and Milam
action, and, with the exception of health care providers, County are both within 150 miles from Pearland, Texas, the
he intends to present the same evidence and witnesses for location of Daniels' residence,4 and O'Bryant has the ability
Daniels as he does for O'Bryant. He contends that Daniels to subpoena Daniels to appear at a trial in either one of these
is an indispensable witness to O'Bryant's case because he venues. Although Daniels' affidavit statesthat he will not
has knowledge regarding the negligence of Renzenberger, appear in any other county, except Brazoria, as a witness, he
weather and road conditions, and O'Bryant's physical may be compelled to appear in another county pursuant to
condition before and after the accident. In the affidavit, he also
rule 176.8(a) by the procurement of a writ of attachment. See
states that trying both cases in Brazoria County will preserve Tex.R. Civ. P. 176.8(a).
judicial resources, reduce litigation costs for all parties, and
eliminate the possibility of inconsistent judgments. O'Bryant contends appellants waived the right to request
that his case be transferred to any county, other than
*4 In support of his argument that the unavailability of an Tarrant County, because they failed to properly amend their
indispensable witness satisfies the “essential need” element motion to transfer venue. However, we note that in their

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 3
Renzenberger, Inc. v. O'Bryant, Not Reported in S.W.3d (2005)
2005 WL 1361620

reply, appellants requested thatO'Bryant's cause of action
be transferred to eitherMilam County, Harris County, or
Background
Tarrant County, the three counties of proper venue under
section 15.018 of the civil practice and remedies code. This is an accelerated interlocutory appeal under section
Although the pleading was entitled “reply” as opposed to
15.003 of the civil practice and remedies code.2 Appellants,
“amended motion to transfer,” we look to the substance, not
Rentzenberger, Inc. (“Rentzenberger”), The Burlington
the caption, of a pleading to determine itscharacter. See
Northern and Santa Fe Railway Company (“BNSF”), and
Tex.R. Civ. P. 71; Surgitek, 997 S.W.2d at 701. The substance
Samuel Grant Everson (“Everson”), appeal from the trial
of appellants' request is clear:they sought to amend their
court's order denying their motion to transfer venue. O'Bryant
motion to transfer venue to include two additional counties.
filed suit against appellants, alleging personal injuries arising
Furthermore, because appellants' amended motion was filed
out of an automobile accident. In a single issue, appellants
before the court ruled on the original motion to transfer
contend the trial court erred in denying their motion to transfer
venue, we conclude that the amended motion was timely
venue because O'Bryant failed to establish an “essential need”
filed. See In re Pepsico, Inc., 87 S.W.3d 787, 794 (Tex.App.-
to have his lawsuit tried in Brazoria County as required by
Texarkana 2002, no pet.) (holding that “an original timely
motion to transfer venue may be amended to cure defects in section 15.003.3
the original motion if the amended motion is filed before the
trial court rules on the original motion, and that the properly O'Bryant and Randy Daniels (“Daniels”) are railroad workers
filed amended motion relates back to and supersedes the employed by BNSF. BNSF contracts with Renzenberger, a
original motion to transfer venue.”). Having reviewed the crew transportation company, to transport BNSF employees
entire record, we conclude that O'Bryant failed to establish to and from various points. On February 14, 2004, BNSF
that it was “indispensably necessary” to try his claim in arranged for Everson, a driver for Renzenberger, to pick up
Brazoria County. Daniels' assertion that he will only testify forO'Bryant and Daniels in Davidson, Texas, and drive them to
O'Bryant if his case is tried in Brazoria County fails to rise toTemple, Texas. En route to Temple, the vehicle was involved
the level of prima facie evidence on the issue of unavailability,in a single-vehicle accident in Buckholts, Texas, which is
the sole basis for O'Bryant's essential need to try hiscase located in Milam County. O'Bryant and Daniels allege that
in Brazoria County. Accordingly, we sustain appellants' sole they suffered personal injuries as a result of the accident. They
issue. filed suit in Brazoria County based on the Federal Employers'
Liability Act (“FELA”).4
*5 We reverse the trialcourt's order denying appellants'
motion to transfer O'Bryant's cause of action and remand this Suits brought under the FELA are subject to the mandatory
case to the trial court for further proceedings. venue provisions set forth in section 15.018 of the civil
practice and remedies code.5 Appellants concede that
Brazoria County is a proper venue for Daniels under the
Dissenting Memorandum Opinion by Justice YAÑEZ Joined FELA because he resides there. O'Bryant isa resident of
by Justices RODRIGUEZ and GARZA. Harris County, however, and cannot properly maintain venue
in Brazoria County independently. Therefore, he seeks to join
Daniels's suit pursuant to section 15.003 of the civil practice
Dissenting Justice YAÑEZ Joined by Justices RODRIGUEZ
and remedies code.6
and GARZA.
*5 The majority holds that appellee, Cornelious O'Bryant,
On May 10, 2004, appellants filed a motion to transfer
Jr., failed to establish an essential need to have his lawsuit
venue, requesting that O'Bryant's claim be transferred to
tried in Brazoria County. Accordingly, the majority reverses
Tarrant County, where BNSF's principal place of business is
the trial court's order denying appellants' motion to transfer
located. Appellants also denied O'Bryant's claim that venue
venue. Because I would hold that O'Bryant met his burden
was proper in Brazoria County pursuant to section 15.003.
to establish an essential need to try his lawsuit in Brazoria
In the same document, “subject to the foregoing Motion
County, I respectfully dissent.
to Transfer Venue,” appellants filed an “Original Answer,”
which included a general denial of the plaintiffs'
claims
and various alternative defensive pleadings.7 O'Bryant filed

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 4
Renzenberger, Inc. v. O'Bryant, Not Reported in S.W.3d (2005)
2005 WL 1361620

a response to the motion to transfer.He attached various
affidavits and other evidence, which he contends establishes,
by prima facie proof, each of the joinder elements under
Analysis
section 15.003.
O'Bryant had the burden of establishing, by prima facie proof,
*6 On November 22, 2004, seven days prior to the hearing
each of the above-listed joinder elements.17 He attempted to
8
on the motion to transfer venue, appellants filed a “reply” do this by attaching the following documents to his response
to O'Bryant's response and motion for severance. In the to appellants' motion to transfer:
reply, appellants requested that venue be transferred to any
of the three counties of proper venue: (a) Milam County (1) the affidavit of Clint E. McGuire, attorney for O'Bryant
(where the accident occurred); (b) Tarrant County (where and other plaintiffs, which states, among other things, that: (a)
BNSF's principal place of business is located); or (c) Harris O'Bryant's and Daniels's suits arise out of the same occurrence
County (the county where O'Bryant resided at the time of the and thus involve the same facts, causes of action, evidence
accident).9 and witnesses; (b) Daniels is an indispensable witness to
O'Bryant's case and his live testimony is essential to the
On November 29, 2004, the trialcourt held a hearing case; (c) Daniels will appear and testify for O'Bryant only in
on appellants' motion to transfer venue. At the hearing, Brazoria County, and will not travel to any other county to
O'Bryant's counsel objected that appellants “have not testify on O'Bryant's behalf; (d) Daniels's case will be tried
amended their motion to transfer this case to Harris or Milam in Brazoria County, regardless of the outcome of appellants'
County.” At the conclusion of the hearing, the trial court motion to transfer in O'Bryant's case; and (e) trying both cases
noted, “You know, we got the cases here. We got both in Brazoria County will preserve judicial resources, reduce
these cases here in Brazoria County.” The trial court denied litigation costs for all parties, and eliminate the possibility of
appellants' motion to transfer venue. This appeal ensued. inconsistent judgments.

*7 (2) Daniels's affidavit, which states, among other things,
that: (a) his case will be tried in Brazoria County, regardless of
Standard of Review and Applicable Law
whether O'Bryant's case is transferred; (b) because of family
We review the propriety of a trialcourt's section 15.003 responsibilities, he will testify for O'Bryant only if O'Bryant's
joinder decision by conducting an independent de novo case is also tried in Brazoria County, and will not testify for
O'Bryant if his case is transferred to any other county; and (c)
review of the entire record.10
he has personal knowledge of the facts regarding the accident,
and is therefore an indispensable witness for O'Bryant.
The plaintiffbears the burden to offer prima facie proof
of each joinder element in section 15.003(a).11 Prima facie (3) O'Bryant's own affidavit,in which he states, among
proof consists of properly pleaded venue facts along with other things, that Daniels has crucial knowledge regarding
filed affidavits and duly proved attachments to the affidavits the accident and istherefore an indispensable witness in
that fully and specifically set forth the facts supporting each O'Bryant's case.
pleading.12 If the defendant offers no rebuttal evidence, the
inquiry is over.13 The trial court has discretion to consider (4) Everson's deposition testimony, in which he states that
a broader range of evidence in making a section 15.003(a) he does not recall the details of the accident because it “all
happened so fast.”
joinder determination than it would in a venue hearing.14
The court of appeals isnot constrained solely to review
(5) appellants' responses to O'Bryant's requests for admission.
the pleadings and affidavits, but considers the entire record,
including any evidence presented at the hearing.15 Any Appellants filed a November 22, 2004 “reply” to O'Bryant's
affidavit evidence relied upon in support of venue allegations response. In their reply, appellants argue that O'Bryant
must be made on personal knowledge, set forth specific facts failed to establish the “essential need” element of section
as would be admissible in evidence, and show affirmatively
16
15.003.18 Appellants argue that O'Bryant's reliance on
that the affiant is competent to testify. Daniels's unwillingness to travel outside of Brazoria County

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Renzenberger, Inc. v. O'Bryant, Not Reported in S.W.3d (2005)
2005 WL 1361620

to testify fails to establish an “essential need” for O'Bryant argument, however, the November 22 reply is a substitute for
to try his lawsuit in Brazoria County because if O'Bryant's appellants' May 10, 2004 motion.25 Appellants' November
case were transferred to either Milam or Harris County—both 22 reply: (a) argues that the mandatory venue provisions of
counties of proper venue—Daniels could be subpoenaed to section 15.018 of the civil practice and remedies code defeat
testify because his residence is within the 150–mile subpoena O'Bryant's joinder argument pursuant to section 15.003; (b)
range of the court. See Tex.R. Civ. P. 176.3(a).19 pleads alternativelythat even ifthe court determines that
section 15.003 applies, O'Bryant has nonetheless failed to
Appellants attached two documents to their reply: (1) the establish an “essential need” to try the case in Brazoria County
accident report, establishing that the accident occurred in because Daniels resides within the 150–mile subpoena range
Milam County and that O'Bryant is a resident of Harris of Harris County and Milam County; and (c) moves that
County; and (2) an excerpt from the investigating officer's O'Bryant's claims be severed and transferred.Appellants'
deposition testimony establishing the validity of the accident November 22 reply does not contain an answer to the
report. plaintiffs' pleadings. Looking to the substance of appellants'
November 22 reply, which does not contain an answer or other
In their sole issue, appellants contend that O'Bryant failed defensive pleadings, I conclude it is a reply pleading and is
to establish an essential need to have his lawsuit tried in not an amended motion to transfer venue.26
Brazoria County. Before examining the evidence, however,
I first address appellants' argument that their “misnomered” I now turn to appellants' argument that O'Bryant failed to
reply was an amended motion to transfer venue.
establish an essential need to try his suit in Brazoria County.27

Appellees argue that appellants'May 10, 2004 motion to
Daniels's affidavit asserts that he has personal knowledge of
transfer venue requested transfer to Tarrant County (BNSF's
facts regarding the accident and is therefore an indispensable
principal place of business) only and that appellants never
witness for O'Bryant. He also states that because of family
amended their motion to request transfer to any other county.
responsibilities, he will only testify for O'Bryant if the case is
Appellants argue that although “misnomered a ‘reply,’ “ their
tried in Brazoria County. O'Bryant's affidavit similarly asserts
November 22, 2004 pleading was, in substance, an amended
that Daniels is an indispensable witness in his case. In his
motion to transfer venue. Thus, appellants argue that their
affidavit, counsel for O'Bryant and Daniels also states that
“amended motion” requested transfer of venue to any one
Daniels is an indispensable witness in O'Bryant's case and
of three counties of proper venue: Milam County, Tarrant
will testify only if O'Bryant's case is tried in Brazoria County.
County, or Harris County. I turn to appellants' contention that
Everson, the only other person involved in the accident,
their November 22 “reply” was an amended motion to transfer
confirms in his deposition testimony that he does not know
venue.
what happened. I conclude that O'Bryant offered prima facie
proof that he has an essential need to try his lawsuit in
In determining the nature of a pleading, we must look to the
Brazoria County.
substance of the pleading and not just to the title given to
the pleading.20 A “supplemental” or reply pleading is filed in Appellants' rebuttal evidence established that Milam County
response to the last pleading of an adverse party and repeats and Harris County are counties of proper venue. In addition,
allegations previously pleaded only when necessary.21 An appellants argued that if the case were transferred to
amended petition, on the other hand, adds to or withdraws either Milam County or Harris County, Daniels could be
from that which was previously pleaded, such as a new cause subpoenaed to testifybecause he resides within the 150–
of action.22 An amended petition also supersedes all prior mile subpoena range applicable to Milam or Harris County.28
petitions.23 An amended pleading is to be entire and complete I have determined, however, that appellants' November
22 reply is not an amended motion to transfer venue.
in itself; it is a substitute for the instrument amended.24
Appellants' May 10 motion to transfer requested transfer only
to Tarrant County. Because appellants' rebuttal evidence relies
*8 As noted, appellants argue that their November 22,
on a presumption that their “amended motion to transfer”
2004 reply—which expands their request to transfer venue
requested transfer to Milam County and Harris County—a
to Milam and Harris County, in addition to Tarrant County
contention I reject—I conclude that appellants have offered
—is an amended motion to transfer. If we accept appellants'

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 6
Renzenberger, Inc. v. O'Bryant, Not Reported in S.W.3d (2005)
2005 WL 1361620

appellants' sole issue and affirm the judgment of the trial
insufficient evidence to rebut O'Bryant's prima facie proof
court.
establishing essential need. Accordingly, after conducting an
independent de novo review of the entire record, I would
hold that O'Bryant met his burden to establish an essential All Citations
need to try his lawsuit in Brazoria County.29 I would overrule
Not Reported in S.W.3d, 2005 WL 1361620

Footnotes
1 Retired Fourteenth Court of Appeals Justice Don Wittig, assigned to this Court by the Chief Justice of the Supreme Court
of Texas pursuant to Tex. Gov't Code Ann. §§ 74.003, 75.003 (Vernon 1998 and Vernon Supp.2004–05).
2 O'Bryant has not argued to this Court, or to the trial court, that he can establish venue in Brazoria County independent of
Daniels. Therefore, he must satisfy the four requirements set forth in section 15.003(a). See Tex. Civ. Prac. & Rem.Code
Ann. § 15.003(a) (Vernon Supp.2004–05).
3 O'Bryant also argues that he has an essential need to stay in the Brazoria County case because if his case is transferred
to another county he may be bo

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CHRISTINE WEEMS Track Judge’s New Case

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January 19, 2021

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Letter,Correspondence: ATLAS OPERATING LLC vs. REDEMPTION OIL & GAS LLC

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