in Re CVR Energy, INC. and CVR Refining, LP

ACCEPTED
01-15-00715-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/9/2015 8:32:15 PM
CHRISTOPHER PRINE
CLERK

No. 01-15-00715-CV
FILED IN
1st COURT OF APPEALS
In the Court of Appeals HOUSTON, TEXAS
For The First District of Texas 10/9/2015 8:32:15 PM
CHRISTOPHER A. PRINE
Clerk
In re:
CVR Energy, Inc. and CVR Refining, LP,
Relators

Original Proceeding from the 268th Judicial District Court
Fort Bend County, Texas, Hon. Brady G. Elliott presiding
Tr. Ct. No. 2015-DCV-220330

REAL PARTY IN INTERESTS’ RESPONSE TO
PETITION FOR WRIT OF MANDAMUS
David M. Medina, SBN: 00000088
5300 Memorial Dr, Ste 890
Houston, TX 77007
Timothy A. Hootman, SBN 09965450
2402 Pease St
Houston, TX 77003
Gary M. Riebschlager, SBN 16902200
801 Congress, Ste 250
Houston, TX 77002
Richard L. Tate, SBN 19664460
206 South 2nd St
Richmond, TX 77469
ATTORNEYS FOR REAL PARTIES IN
INTEREST, DONALD R. COLLIER, JENNIFER
J. COLLIER, DALE A. NIEMEYER, AND
WENDY NIEMEYER
 TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................... 2
INDEX OF AUTHORITIES ..................................................................... 4
STATEMENT OF FACTS ........................................................................ 6
a. Introduction to the statement of facts. ................... 6
b. The corporate structure and the
“Services Agreement” placing the
negligent acts in Texas. ................................................ 7
c. The corporate officers; their location;
and their testimony. ................................................... 11
d. The related case currently pending in
Fort Bend County. ....................................................... 13
e. The trial court’s consideration of the
record and its ruling................................................... 13
SUMMARY OF ARGUMENT ................................................................ 16
ARGUMENT AND AUTHORITIES ......................................................... 17
a. Introduction. ................................................................ 17
b. The applicable standards of review. ....................... 19
i. The mandamus standard of review in
general. .................................................................. 19
ii. The mandamus standard of review as
applied to a trial court’s ruling on a
forum non conveniens motion to
dismiss under section 71.051(b) of the
Civil Practice & Remedies Code. ........................... 20
c. The law of forum non conveniens. .......................... 21
d. Discussion. ................................................................... 23
Factor 1—alternate forum. ........................................... 24
Factor 2—adequacy of alternate forum. ...................... 25
Factor 3—substantial injustice. .................................... 26
Factor 4—jurisdiction over all defendants. .................. 28

2
 Factor 5—private/public interests. .............................. 29
Factor 6–proliferation of litigation. ............................ 32
e. Conclusion. .................................................................. 34
PRAYER ............................................................................................. 35
CERTIFICATE OF WORD COUNT ....................................................... 35
CERTIFICATE OF SERVICE ................................................................ 36
RULE 52.3(J) CERTIFICATION .......................................................... 36

3
 INDEX OF AUTHORITIES
Texas Cases:
Enterprise Prod. Partners v. Mitchell, 340 S.W.3d 476, 479-80 (Tex.
App.—Houston [1st Dist.] 2011, pet. dism’d by agr.)…………….. 25
Flaiz v. Moore, 359 S.W.2d 872, 875 (Tex. 1962)…………………………. 32
Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)……………………………… 29
Gurvich v. Tyree, 694 S.W.2d 39 (Tex. App.—Corus Christi 1985, no
writ)……………………………………………………………………………….. 32
Hill v. Perel, 923 S.W.2d 636 (Tex. App.—Houston [1st Dist.] 1995, no
pet.)………………………………………………………………………………… 25
In re BPZ Res., Inc., 359 S.W.3d 866 (Tex. App.—Houston [14th Dist.]
2012)(orig. proceeding)…………………………………………. 28, 30, 33
In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379 (Tex. 2005)
(orig. proceeding) (per curiam)………………………………………….. 19
In re Ensco Offshore Int’l Co., 311 S.W.3d 921 (Tex. 2010)……… 23, 33
In re Gen. Elec. Co., 271 S.W.3d 681 (Tex. 2008)…………………………. 23
In re Mantle Oil & Gas, LLC, 426 S.W.3d 182 (Tex. App.—Houston
[1st Dist.] 2012) (orig. proceeding)…………………………….. passim
In re McAllen Med. Ctr., Inc., 275 S.W.3d 458 (Tex. 2008) (orig.
proceeding)……………………………………………………………………… 19
In re Omega Protein, Inc., 288 S.W.3d 17 (Tex. App.—Houston [1st
Dist.] 2009) (orig. proceeding)…………………………………… passim
In re Pirelli Tire, L.L.C., 247 S.W.3d 670 (Tex. 2007) (orig.
proceeding)………………………………………………………………… 20, 21
In re Reece, 341 S.W.3d 360 (Tex. 2011) (orig. proceeding)…………… 19
In re Smith Barney, Inc., 975 S.W.2d 593 (Tex. 1998)…………………. 21
In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (org.
proceeding)……………………………………………………………………… 19
Owens Corning v. Carter, 997 S.W.2d 560 (Tex. 1999)………………… 22
Seung Ok Lee v. Ki Pong Na, 198 S.W.3d 492 (Tex. App.—Dallas
2006, no pet.)………………………………………………………………….. 20

4
Tullis v. Georgia-Pacific Corp., 45 S.W.3d 118 (Tex. App.—Fort
Worth 2000, no pet.)…………………………………………………………22
Young Refining Corp. v. Pennzoil Co., 46 S.W.3d 380, 385 (Tex.
App.—Houston [1st Dist.] 2001, pet. denied)……………………… 26
Statutes:
K.S.A. § 60-258a………………………………………………………………………. 26
K.S.A. § 60-513a(4)…………………………………………………………………… 26
P.I.K 4th § 171.02……………………………………………………………………… 26
TEX. CIV. PRAC. & REM. CODE § 71.051…………………………………… passim
TEX. R. EVID. 202………………………………………………………………………. 32

5
 STATEMENT OF FACTS
a. Introduction to the statement of
facts.
Donald and Jennifer Collier are married and live in

Independence, Kansas (App. Tab 4, p. 1). Dale and Wendy Niemeyer

are married and live in South Coffeyville, Oklahoma (id.). Donald

and Dale were severely injured while working at an oil refinery in

Coffeyville, Kansas when a pump leak caused a major explosion (id.,

p. 3).1 The negligence and gross negligence leading to the explosion

took place in Sugar Land, Texas (id., p. 4-5). Moreover, key

documentary and testimonial evidence bearing on the acts of

negligence and gross negligence are also located in Sugar Land,

Texas, and therefore, the Colliers and Niemeyers filed suit in Fort

Bend County as the most logical forum to pursue their personal injury

claims against the responsible parties.

Relators’ assertion in its petition for writ of mandamus that

“virtually all material witnesses and evidence regarding the accident

are located in Kansas” in support of its claim that the trial court

1 According to the defendants’ General Counsel Edmund S. Gross, “the
accident occurred when [a] pump[] within the refinery experienced a shaft
seal failure which caused the release of volatile vapor which ignited.” (App.,
Tab 7, Exh. 1, p. 2).

6
abused its discretion in keeping the case in Texas is not supported by

the record. (See Issue Presented in Pet. for Mand. at x.). What is

supported by the record, and was therefore the factual basis of Judge

Elliott’s ruling in denying Relators’ forum non conveniens motion to

dismiss, is the following.

b. The corporate structure and the
“Services Agreement” placing the
negligent acts in Texas.
CVR Energy, Inc., CVR Refining, LP, and CVR Refining GP,

LLP, signed a document entitled “Service Agreement” that is key to

the allegations of negligence in this case and in particular resolution

of the forum non conveniens issue (App. Tab 11). In the Service

Agreement, CVR Refining GP, LLP and CVR Refining, LP agree that

CVR Energy, Inc. will make the intellectual operational decisions

regarding the plant that exploded in Kansas along with the

intellectual operational decisions regarding five other plants—that is,

CVR Energy, Inc. decides how and when the plant that exploded will

be operated and maintained (Id.). The Service Agreement provides

that the intellectual operational decisions to be made by CVR Energy,

Inc. include:

7
 • Services in capacities equivalent to the capacities of
corporate executive officers.
• Safety and environmental advice.
• Administrative and professional services, including legal,
accounting, human resources, insurance, tax, credit, finance,
government affairs, and regulatory affairs.
• Manage the Service Recipients’ day-to-day business and
operations, including managing its liquidity and capital
resources and compliance with applicable law.
• Recommend capital raising activities, the entry into credit
facilities or other credit arrangements, structured financings
or changes, or other modifications in the capital structure,
including repurchases.
• Recommend or, if approval is not required, engage third
party service providers, including accountants, lawyers or
experts.
• Manage the Service Recipients’ property and assets in the
ordinary course of business.
• Manage or oversee litigation, administrative or regulatory
proceedings, investigations or any other reviews of the
Services Recipients’ business or operations that may arise in
the ordinary course of business or otherwise.
• Establish and maintain appropriate insurance policies.
• Recommend payment of dividends and distribution of equity
interests.
• Attend to calculation and payment of taxes, and filing of tax
returns.
• Manage or provide advice or recommendations for other
projects (App. Tab 11).

CVR Energy, Inc. is a Delaware corporation with its principal

executive offices in Sugar Land, Texas, which is where the intellectual

operational decisions that led to the explosion of the plant in Kansas

8
were made. (App. Tab 4, p. 2). CVR Energy, Inc. is engaged in

petroleum refining and nitrogen fertilizing manufacturing through its

limited partnerships, which include CVR Refining, LP and CVR

Partners, LP (App. Tab 9, Exh. A & F). CVR Refining, LP is a

Delaware limited partnership also located in Sugar Land, Texas,

formed by CVR Energy, Inc. (Id. at Exh. B & F). CVR Refining GP,

LLP is the general partner of CVR Refining, LP (App. Tab 11, p. 1). 2

One of the plants is operated under the name of CVR Refining, LLC,

which is distinct from CVR Refining, LP.

The Coffeyville oil refinery that exploded is owned by Coffeyville

Resources Refining Marketing, LLC, which is a Kansas business entity

(called “Coffeyville Resources”) (App. 7, Exh. 1, p. 1). Coffeyville

Resources is a subsidiary of CVR Energy, Inc. In that regard, Relators

state on page 2 of their memorandum in support of the motion to

dismiss that “CRV Energy, Inc. owns the General Partnership and

66% of the Limited Partner units of CVR Refining, LP” and that

Coffeyville Resources “is a wholly-owned subsidiary of CVR Refining,

2 “[CVR Refining GP, LLC] is the owner, directly or indirectly, of CVR
Refining, LLC, Wynnewood Refining Company, LLC, Coffeyville Resources
Refining & Marketing, LLC, Coffeyville Resources Crude Transportation,
LLC, Coffeyville Resources Terminal, LLC and Coffeyville Resources
Pipeline, LLC” (App. Tab 1, p. 1).

9
LP (App. 7, p. 2). Pursuant to the Service Agreement, CVR Energy,

Inc. makes the intellectual operational decisions for the Coffeyville

Resources plant that exploded from its office in Sugar Land, Texas.

There are at least five witnesses located in Sugar Land that will testify

and produce documents about the decisions made under the Services

Agreement leading to the explosion (App. 9, p 8-9 & Exh. H & I).

The corporate structure is graphed as follows:

CVR Energy, Inc.
(Del Corp headquartered in TX; makes management, maintenance
& operational decisions; owns 66% of CVR Refining, LP)
↓
CVR Refining GP, LLP
(General Partner of CVR Refining, LP which is owned by CVR
Energy, Inc.; signed Service Agreement allowing CVR Energy, Inc.
to operate plants)
↓
CVR Refining, LP
(Located in Sugarland, Texas; owned by CVR Energy, Inc. which
owns the 6 plants; signed Service Agreement allowing CVR
Energy, Inc. to operate plants)
↓
Six LLCs Holding Six Plants thru CVR Refining, LLC
1. Coffeyville Resources Refining & Marketing, LLC (plant at
issue; “wholly-owned subsidiary of CVR Refining, LP)
2. Coffeyville Resources Crude Transportation, LLC
3. Coffeyville Resources Terminal, LLC
4. Coffeyville Resources Pipeline, LLC
5. Wynnewood Refining Company, LLC
6. Wynnewood Energy Company, LLC

10
c. The corporate officers; their
location; and their testimony.
Robert Haugen is “Executive Vice President of Refining

Operations” for Coffeyville Resources, CVR Energy, Inc., and CVR

Refining, LP—Mr. Haugen’s office is in Sugar Land and he resides in

Houston (App. Tab 9, Exh. H, p. 6). Mr. Haugen testified that he is

“responsible for day-to-day operations and maintenance personnel”

and that the environmental, capital-project, and pipeline operations

groups of the companies report to him (id at pp. 9, 10-15).

Jay Finks is a non-decision making employee of CVR Energy,

Inc. with a fancy, but misleading title called “Director of Investor

Relations” who has his office in Kansas and has the duty of paying

bills when instructed to do so by the decision makers from CVR

Energy, Inc. and CVR Refining, LP in Texas (App. Tab 9, Exh. I, pp.

6-24).

The affidavit of Edmund S. Gross was attached to Relators’

memorandum in support of the motion to dismiss, and states as

follows:

I, Edmund S. Gross, served as the General Counsel
to CVR Energy, Inc., CVR Refining, LP, and
Coffeyville Resources … for a number of years prior
to my retirement on December 31, 2014. I have
personal knowledge of the facts and information

11
provided below, and I am competent to testify
concerning these matters. The accident which
injured Donald R. Collier and Dale A. Niemeyer
occurred while they worked at the refinery of
Coffeyville Resources …, all in Coffeyville, Kansas,
on July 28, 2014. Two other [Coffeyville Resources]
employees were also injured, one fatally, in the
accident. All employees or their families received
workers’ compensation benefits for the injuries and
losses sustained. The accident occurred when one
of [Coffeyville Resources’] pumps within the
refinery, P-2217, experienced a shaft seal failure
which caused the release of a volatile vapor which
ignited. The investigation of the pump failure was
undertaken at the refinery in Coffeyville, Kansas
and at a shop located in Lee’s Summit, Missouri.
The pump, which is estimated to weigh 1,000
pounds is stored in Coffeyville, Kansas. All
witnesses to the accident were either [Coffeyville
Resources] employees who were at work at the time,
or medical or emergency personnel from the
Coffeyville, Kansas area who arrived soon
thereafter. I believe that the majority of the
physicians, healthcare providers and hospitals that
initially cared for Mr. Collier and Mr. Niemeyer are
either in Kansas or in the adjacent areas of Tulsa,
Oklahoma. CVR Energy, Inc. is registered to do
business and doing business in the State of Kansas.
CVR Energy, Inc. is amenable to process in the State
of Kansas through its resident agent, The
Corporation Company, Inc., 112 SW 7th Street, Suite
3C, Topeka, Kansas 66603. CVR Refining, LP is
registered to do business and doing business in the
State of Kansas. CVR Refining, LP is amenable to
service within the State of Kansas through its
resident agent, Corporate Service Company, 200
SW 30th Street, Topeka, Kansas 66611. (App. 7,
Exh. 1) (numbering of paragraphs removed).

12
d. The related case currently pending
in Fort Bend County.
Another plant owned by Relators and located in Oklahoma also

exploded which is within 100 miles of the plant in this case. That case

is currently pending in cause number 13-DCV-209679, in the 434th

Judicial District of Fort Bend County, Texas and is currently set for

trial. (App. 9, pp. 3, 6). Relators have never complained that that

proceeding is inconvenient and extensive discovery, including

depositions in Oklahoma has occurred. (Id.). The trial court

specifically asked about this other pending case at the hearing on the

motion to dismiss. (App. 2, pp. 29-30).

e. The trial court’s consideration of
the record and its ruling.
It is clear from the reporter’s record of the hearing on the

motion to dismiss that the trial court considered all of the

circumstances and the factors required by section 71.051(b) of the

Civil Practice & Remedies Code regarding a forum non conveniens

motion to dismiss, including the problems associated with taking

testimony by deposition or trial and the applicability of Kansas law.

(App. 2, pp. 9-13). The trial court specifically considered the

contested factual issues as the following portion of the record

exemplifies:

13
The Court: First, tell me what the involvement of the Sugar Land
corporations were in the Kansas refinery that makes
them more than just an administrative operation.
What will you be able to show me in evidence that
shows they had direct operating control over that
Kansas refinery?
Mr. Tate: … [T]he heart of this case is going to be decisions
made right here in Sugar Land, Texas not to spend
the money that was allocated in the budget under a
management of change forum to make the specific
improvement on this hydrogen separator that would
have prevented this accident. Now, I’m going to
come back to that in a minute; but he also –
The Court: Well, let’s talk about that a little.
Mr. Tate: Okay.
The Court: And I perceived in the pleadings that there was –
there’s issues involving the management direction of
the Kansas refinery.
Mr. Tate: Right.
The Court: In listening to what you just said, there’s certainly a
difference between budget and application of that
budget.
Mr. Tate: Right.
The Court: The negligence would have to fall in that gray area in
between and the degree of control exercised by the
Sugar Land company over the Kansas refinery.
Mr. Tate: Exactly, Your Honor. And Exhibit –
The Court: And I think – and I’m sure you perceive where I’m
going. If that is going to be the primary issue, then
that may drive a decision here; or it may drive a
decision to Kansas, because, “Okay. We need to do
this”; and the Kansas operators’ not doing it is
entirely two different things.
Mr. Tate: Well, the Kansas operators can’t do it until Sugar
Land tells them to. Exhibit F, Your Honor, to our – to
our response is an excerpt from Form 10-Q for CVR

14
 Refining, Inc.; and it discusses in very small print the
shared services agreement and the responsibilities
that CVR Energy and CVR Refining undertake under
the management services agreement to provide daily
day-to-day operations and supervision of the
operations of their – of the Coffeyville refinery and
the Wynnewood refinery which incidentally is the
subject of the lawsuit down in Judge Shoemaker’s
court.
The Court: “Operational” I perceive to be, “I’m the guy on the
ground; I’m the guy who tells the guy to turn it off.”
Mr. Tate: Yes.
The Court: Administrative may differentiate in saying, “This is
our rules and regulations. You have to follow them.”
There’s a gap there.
Mr. Tate: No.
The Court: And that is an important gap because that determines
in my mind whether this should be a Kansas case or
this should be a Texas case. (App. 2, pp. 18-22).
The trial court proceeds to ask a series of questions further

developing this same line of conversation. (App. 2, pp. 22-24).

At the close of the hearing, the trial court denied the motion to

dismiss. (App. 2, p. 33).

15
 SUMMARY OF ARGUMENT
This Court’s opinions in In re Mantle Oil & Gas, LLC, and In re

Omega Protein instruct that a key focus of forum non conveniens

analysis is on whether the alleged negligence of a defendant took

place in Texas or another state. When the negligence occurred within

a corporate office located in Texas, the private and public interests of

§ 71.051(b)(5) weigh heavily in favor of keeping the case in Texas.

Relators argue that “virtually all witnesses and evidence

surrounding the cause of the fire, the events occurring during and

after the fire, and damages are located in Kansas and Oklahoma,

outside subpoena range of the Fort Bend County, Texas trial court.”

However, the fact that a fire and the resulting injuries occurred is not

contested; everyone agrees that this happened. Rather, the only

contested issue is whether the decisions regarding the plant that took

place in Relators’ Sugar Land offices were negligent and proximately

caused the explosion and injuries to the Colliers and the Niemeyers.

Because the trial court focused precisely on this point in denying the

motion to dismiss—as required by In re Mantle Oil & Gas, LLC, and

In re Omega Protein—there was no abuse of discretion and

mandamus relief should be denied.

16
 ARGUMENT AND AUTHORITIES
a. Introduction.

Relators argue that mandamus relief is in order because the

trial court abused its discretion in denying their forum non

conveniens motion to dismiss under section 71.051(b) of the Civil

Practice & Remedies Code. In this regard, Relators claim (1) Kansas

is a more appropriate and convenient forum for the parties, (App. 7,

pp. 4-8), and (2) Kansas law applies and therefore Kansas courts are

better positioned than Texas courts to adjudicate the controversy.

(App. 7, pp. 9-11). Relators’ sum up their entire argument by stating:

In litigation between Kansas parties over an
accident that occurred in Kansas related to an
employment relationship in Kansas, for which
Kansas law will apply, a petition filed in Fort Bend
County, Texas has little, if any, relationship to the
cause of action. (App. 7, p. 12).
This entire argument hangs on the misleading factual assertion that

“virtually all witnesses and evidence surrounding the cause of the fire,

the events occurring during and after the fire, and damages are

located in Kansas and Oklahoma, outside subpoena range of the Fort

Bend County, Texas trial court.” (See Issue Presented in Pet. for

Mand. at x.).

17
 The events during and after the fire and damages are not the

contested facts in this case. Everyone agrees that a fire occurred and

that serious damages to the Colliers and Niemeyers resulted from that

occurrence. What is contested is whether the managerial and

operational decisions made in Sugar Land, Texas pursuant to the

Service Agreement were the proximate cause of the fire and damages

that took place in Kansas. All of the witnesses and documents

bearing on those decisions are located in Sugar Land, Texas. As the

trial court said: “And that is an important gap because that

determines in my mind whether this should be a Kansas case or this

should be a Texas case” (App. 2, pp. 18-22). Therefore the trial court

was well within its discretion in denying the motion to dismiss on the

grounds that Texas has a public interest in adjudicating negligence

occurring on Texas soil and the Colliers and the Niemeyers have a

private interest in litigating the only contested issue in the forum

where the witnesses and documents as to that issue are located.

It is worth noting at the outset that the most relevant authority

for this Court’s determination of this case is In re Mantle Oil & Gas,

LLC, 426 S.W.3d 182 (Tex. App.—Houston [1st Dist.] 2012) (orig.

18
proceeding). Another key case is In re Omega Protein, Inc., 288

S.W.3d 17 (Tex. App.—Houston [1st Dist.] 2009) (orig. proceeding).

b. The applicable standards of review.

i. The mandamus standard of
review in general.
Mandamus is appropriate when the relator demonstrates that

(1) the trial court clearly abused its discretion; and (2) the relator has

no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364

(Tex. 2011) (orig. proceeding). A trial court clearly abuses its

discretion if it reaches a decision so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law, or if it clearly fails to

analyze the law correctly or apply the law correctly to the facts. In re

Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.

proceeding) (per curiam); In re Mantle Oil & Gas, 426 S.W.3d at 187.

The adequacy of an appellate remedy must be determined by

balancing the benefits of mandamus review against the detriments.

In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (org.

proceeding). Because this balance depends heavily on circumstances,

it is guided by analysis of principles rather than simple rules that treat

cases as categories. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458,

464 (Tex. 2008) (orig. proceeding). In evaluating benefits and

19
detriments, an appellate court considers whether mandamus will

preserve important substantive and procedural rights from

impairment or loss. In re Prudential, 148 S.W.3d at 136. A reviewing

court should also consider whether mandamus will “allow the

appellate courts to give needed and helpful direction to the law that

would otherwise prove elusive in appeals from final judgments.” Id.

Finally, a reviewing court should consider whether mandamus will

spare the litigants and the public “the time and money utterly wasted

enduring eventual reversal of improperly conducted proceedings.”

Id.

ii. The mandamus standard of
review as applied to a trial court’s
ruling on a forum non conveniens
motion to dismiss under section
71.051(b) of the Civil Practice &
Remedies Code.
A trial court’s ruling on a forum non conveniens motion to

dismiss is reviewed for a clear abuse of discretion. In re Pirelli Tire,

L.L.C., 247 S.W.3d 670, 676 (Tex. 2007) (orig. proceeding) (abuse of

discretion where trial court denied forum non conveniens motion to

dismiss); Seung Ok Lee v. Ki Pong Na, 198 S.W.3d 492, 495 (Tex.

App.—Dallas 2006, no pet.) (abuse of discretion where trial court

granted forum non conveniens motion to dismiss); In re Mantle Oil

20
& Gas, 426 S.W.3d at 187. An order denying a motion to dismiss

based on forum non conveniens may be reviewed in a mandamus

proceeding. In re Pirelli Tire, 247 S.W.3d at 679; In re Mantle Oil &

Gas, 426 S.W.3d at 198.

c. The law of forum non conveniens.

The forum non conveniens doctrine applies when a dispute

turns on a claim arising in another state (or country) and the parties

are before a court which, under the general jurisdictional statutes, has

the power to determine the type of controversy involved. The

principle of forum non conveniens is that, given these assumptions,

the court nevertheless, in the exercise of sound judicial discretion,

may resist the imposition of such litigation on its jurisdiction. 3 In a

personal injury case, a defendant may assert a forum non conveniens

motion to dismiss pursuant to section 71.051 of the Civil Practice &

Remedies Code. TEX. CIV. PRAC. & REM. CODE § 71.051(i) (“This

section applies to actions for personal injury or wrongful death.”); see

also In re Mantle Oil & Gas, 426 S.W.3d at 187-88. The relevant part

3 See In re Smith Barney, Inc., 975 S.W.2d 593 (Tex. 1998) (The rule
of forum non conveniens does not prohibit a court from entertaining a case
it ought to hear, but rather, it protects courts from being compelled to hear
cases when doing so would be fundamentally unfair to defendants, the
public, or both.)

21
of section 71.051 for purposes of this mandamus proceeding is

subsection (b), which states 4:

If a court of this state, on written motion of a party,
finds that in the interest of and for the convenience
of the parties a claim or action to which this section
applies would be more properly heard in a forum
outside this state, the court shall decline to exercise
jurisdiction under the doctrine of forum non
conveniens and shall stay or dismiss the claim or
action. In determining whether to grant a motion
to stay or dismiss an action under the doctrine of
forum non conveniens, the court shall consider
whether:
(1) an alternative forum exists in which the
claim or action may be tried;
(2) the alternate forum provides an adequate
remedy;
(3) maintenance of the claim or action in the
courts of this state would work a substantial
injustice to the moving party;
(4) the alternative forum, as a result of the
submission of the parties or otherwise, can
exercise jurisdiction over all the defendants
properly joined to the plaintiff’s claim;
(5) the balance of the private interests of the
parties and the public interest of the state
predominate in favor of the claim or action
being brought in an alternative forum, which
shall include consideration of the extent to
which an injury or death resulted from acts
or omissions that occurred in this state; and
4 Subsection (b) does not apply to Texas residents. Id. at § 71.051(e);
Owens Corning v. Carter, 997 S.W.2d 560 (Tex. 1999); Tullis v. Georgia-
Pacific Corp., 45 S.W.3d 118 (Tex. App.—Fort Worth 2000, no pet.). Here,
the Colliers and Niemeyers are residents of Kansas and Oklahoma, and
therefore, subsection (b) applies.

22
 (6) the stay or dismissal would not result in
unreasonable duplication or proliferation of
litigation. 5
Regarding section 71.051(b), this Court stated in In re Mantle

Oil & Gas the following:

The doctrine of forum non conveniens has always
afforded great deference to the plaintiff’s choice of
forum. However, the doctrine generally affords
substantially less deference to a nonresident’s forum
choice. The forum non conveniens doctrine
recognizes that the plaintiff’s choice must sometimes
yield in the public interest, and in that interest of
fundamental fairness. Dismissal on forum non
conveniens grounds is appropriate when sufficient
contacts between the defendant and the forum state
exist so as to confer personal jurisdiction, but the
case itself has no significant connection to the forum
state.
426 S.W.3d at 187-88 (citations and quotation marks omitted).
d. Discussion.

Resolution of this mandamus proceeding turns on Relators’

assertion that “virtually all witnesses and evidence surrounding the

cause of the fire, the events occurring during and after the fire, and

damages are located in Kansas and Oklahoma, outside the subpoena

5 TEX. CIV. PRAC. & REM. CODE § 71.051(b); see generally In re Gen.
Elec. Co., 271 S.W.3d 681 (Tex. 2008) (discussing how section 71.05(b) has
been amended and no longer places the burden of proof on a particular
party in regard to the factors enumerated in the statute.); see also In re
Ensco Offshore Int’l Co., 311 S.W.3d 921, 927 (Tex. 2010); In re Mantle Oil
& Gas, 426 S.W.3d at 188 (“The statute also does not contain any language
placing the burden of proof on a particular party[.]”).

23
range of the Fort Bend County, Texas trial court.” (See Issue

Presented in Pet. for Mand. at x.). This assertion is misleading in that

it misses the point of what is contested in this case. It is not contested

that a disastrous fire resulting in severe injuries to the Colliers and

the Niemeyers took place in Kansas. The fire and the injuries are a

given. What is contested is whether the intellectual decisions as to

how the plant should be maintained and operated that occurred in an

office in Sugar Land, Texas, were negligence, gross negligence, or the

proximate cause of the explosion, fire, and resulting personal injuries.

All of the witnesses and supporting documentary evidence as to this

issue are located in Sugar Land, Texas. In this regard, Relators state

on page 29 of their petition for writ of mandamus that, “Plaintiffs

clearly hope to develop a theory that Relators’ corporate decisions

somehow affected the pump seal leak.”

With this in mind, a discussion of the six factors listed in

section 71.051(b) as applied to the facts in this case are in order.

Factor 1. An alternative forum exists in which the claim
or action may be tried. TEX. CIV. PRAC. & REM.
CODE § 71.051(b)(1).
“An alternate forum is one in which the defendant is amenable

to process.” In re Mantle Oil & Gas, 426 S.W.3d at 189. Here,

24
Relators are amenable to process in Kansas, and therefore, Kansas is

an alternative forum where this case could be tried if it is not tried in

Texas.

Factor 2. The alternate forum provides an adequate
remedy. Id. at § 71.051(b)(2).
“An alternate forum is inadequate if the remedies that it offers

are so unsatisfactory that they comprise no remedy at all.” In re

Mantle Oil & Gas, 426 S.W.3d at 189. Before an alternate forum

analysis is even required in this case this Court must first conclude

that Kansas law applies in the first place.

Texas law applies here according to the conflict of laws’ “most

significant relationship test” because the place where the conduct

causing the injury occurred is Sugarland, Texas. See Enterprise Prod.

Partners v. Mitchell, 340 S.W.3d 476, 479-80 (Tex. App.—Houston

[1st Dist.] 2011, pet. dism’d by agr.).6 Moreover, the negligence laws

6 It is also plausible that under the “most significant relationship test”
that Texas law regarding liability applies and that Kansas law regarding
remedies applies because the test requires consideration of “the place
where the injury occurred” (which is Texas) and “the place where the
conduct causing the injury occurred” (which is Kansas). Id. at 480.
However, even this scenario has been specifically address by the First
Court of Appeals with the conclusion that “[q]uestions of substantive law
are controlled by the laws of the state where the cause of action arose, but
matters of remedy and procedure are governed by the laws of the state
where the action is sought to be maintained.” Hill v. Perel, 923 S.W.2d
636, 639 (Tex. App.—Houston [1st Dist.] 1995, no pet.).

25
of Kansas and Texas are so similar that there is in fact no conflict of

laws problem present, and therefore, there is no need to even engage

in a conflict of laws analysis. Young Refining Corp. v. Pennzoil Co.,

46 S.W.3d 380, 385 (Tex. App.—Houston [1st Dist.] 2001, pet.

denied). For example, Kansas law, like Texas law, provides for

comparative negligence, K.S.A. § 60-258a, a two-year limitations

period for personal injury claims, K.S.A. § 60-513a(4), and economic

damages flowing from bodily injury. P.I.K 4th § 171.02.

Assuming this Court were to get past the above problems and

conclude that Kansas law applies to this case, then Kansas would be

an alternative forum that could provide an adequate remedy if this

case is not litigated and tried in Texas and this Court were to conclude

that Kansas law applies.

Factor 3. Maintenance of the claim or action in the courts
of this state would work a substantial injustice
to the moving party. Id. at § 71.051(b)(3).
When evaluating the “substantial injustice” factor, “the trial

court considers, among other things, the location of relevant

documents, and evidence and whether a majority of witnesses may be

reached by compulsory process in Texas, which are also

considerations under the fifth factor—the balance of private

26
interests.” In re Mantle Oil & Gas, 426 S.W.3d at 192. In this regard,

the mere “presence of a corporate headquarters is an insufficient

basis for keeping a nonresident’s suit in Texas when all of the other

factors favor another forum.” In re Omega Protein, 288 S.W.3d at

23.

It is quite another thing, however, when the negligence at issue

took place at the corporate headquarters, and the key witnesses and

documents bearing on that negligence are at that location. For

example, in In re Mantle Oil & Gas, the decisive fact as to the most

convenient forum was the negligence in installation of a blowout

preventer in Louisiana because there was no allegation of negligence

originating at the defendants company base in Texas. 426 S.W.3d at

195 (“This case involves a Texas limited liability company based in

Friendswood, Texas, and the Alcee plaintiffs allege that Mantle Oil

committed, in Texas, negligent acts in operating the Well, leading to

the blowout. Thus, we assume, without deciding, that this litigation

does have at least some relation to the citizens of Galveston County.

However, Mantle Oil contends that the proximate cause of the Alcee

plaintiffs’ alleged injuries is the blowout preventer that apparently

27
failed and that was installed by Cajun Well, a Louisiana contractor.”)

(citation omitted).

In short, a “court shall consider the extent to which the injury

resulted from acts or omissions that occurred in Texas.” In re Mantle

Oil & Gas, 426 S.W.3d at 194 (citing In re Ensco, 311 S.W.3d at 926

and In re BPZ Res., Inc., 359 S.W.3d 866, 875 (Tex. App.—Houston

[14th Dist.] 2012) (orig. proceeding). Here, the only contested issue is

whether the acts and omissions within the Sugar Land, Texas office

resulted in the explosion in Kansas. And this is exactly what the trial

court focused on in making its ruling as clearly exemplified by its

comments during the hearing on the motion to dismiss: “And that is

an important gap because that determines in my mind whether this

should be a Kansas case or this should be a Texas case” (App. 2, pp.

18-22).

Factor 4. The alternative forum, as a result of the
submission of the parties or otherwise, can
exercise jurisdiction over all the defendants
properly joined to the plaintiff’s claim. Id. at §
71.051(b)(4).
“The fourth factor is whether the alternate forum can exercise

jurisdiction over all the defendants.” In re Mantle Oil & Gas, 426

S.W.3d at 194. Kansas, just as Texas, could exercise jurisdiction over

28
all the defendants properly joined to the Colliers’ and Niemeyers’

cases.

Factor 5. The balance of the private interests of the parties
and the public interest of the state predominate
in favor of the claim or action being brought in
an alternative forum, which shall include
consideration of the extent to which an injury or
death resulted from acts or omissions that
occurred in this state. Id. at § 71.051(b)(5).
The private/public interests balancing required by factor 5 is a

codification of forum non conveniens factors the United States

Supreme Court applied in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508

(1947). See In re Omega Protein, 288 S.W.3d at 23. In this regard,

this Court has stated:

Gulf Oil instructs courts to consider the following
private interests of the parties: the relative ease
of access to sources of proof; the availability of
compulsory process for attendance of unwilling
witnesses, and the cost of obtaining willing
witnesses; the possibility to view the premises, if
viewing would be appropriate to the action; the
enforceability of a judgment if one is obtained; and
all other practical problems that make trial of a case
easy, expeditious, and inexpensive. Gulf Oil also
requires courts to consider the following public
interests: administrative difficulties caused by
litigation not handled at its origin; jury duty
imposed upon people of a community that has not
relation to the litigation; local interest in having
localized controversies decided at home; and
appropriateness of having a trial in a diversity case
in a forum that is familiar with the state law that

29
 must govern the case, rather than having a court in
another forum untangle problems in conflict of law
and law that is foreign.
Id. (emphasis added). In conducting this private/public balance a

“court shall consider the extent to which the injury resulted from acts

or omissions that occurred in Texas.” In re Mantle Oil & Gas, 426

S.W.3d at 194 (citing In re Ensco, 311 S.W.3d at 926 and In re BPZ

Res., 359 S.W.3d at 875).

The only contested issue is whether there was negligence within

the Sugar Land office—that is, the extent to which the injuries in

Kansas resulted from the acts or omissions that occurred in the Sugar

Land Office. With this in mind, the private interests of the Colliers

and the Niemeyers are that (1) there is an ease of access to the sources

of proof in the Fort Bend County court because the evidence as to the

negligence is located in Sugar Land; (2) compulsory process for

attendance of unwilling witnesses, and the cost of obtaining willing

witnesses is easier in the Fort Bend County court, again, because the

relevant witnesses are in Sugar Land; (3) there is no reasonably

likelihood that the chemical plant needs to be viewed because the

negligence in Sugar Land is at issue, not the negligence at the plant;

(4) the enforceability of a judgment if one is obtained is just as easily

30
enforced via a Texas judgment as via a Kansas judgment; and (5)

given the only contested issue, all other practical problems indicate

that the case can most easily, expeditiously, and inexpensively be

tried in Fort Bend County, Texas. See In re Omega Protein, 288

S.W.3d at 23.

As for the public interests, (1) administrative difficulties that

might arise are those associated with proof related to the negligence

in Texas—again, there is no dispute as to what happened in Kansas,

and so the case turns exclusively on establishing what happened in

the Sugar Land offices; (2) jury duty would be imposed upon people

of a community where the negligence took place, and therefore, the

Fort Bend County citizens would be directly passing on the actions of

residents from their own community and not on the actions of

residents of an out-of-state community; (3) there is an important

local interest in having a Fort Bend County jury pass on negligence

originating in their own backyard, those acts and omissions being a

localized controversy that should be decided at home; and (4) the

issue of a Texas judge determining Kansas law in this case is a non-

issue for the reasons discussed under Factor 2 above and because (i)

the applicable Kansas and Texas negligence laws are so similar that

31
there is no concern of difficulty of interpretation for the Texas court, 7

(ii) judges are required to take judicial notice of the laws of other

states, TEX. R. EVID. 202, and (iii) judges are specialized in

determining questions of law the law.

Factor 6. The stay or dismissal would not result in
unreasonable duplication or proliferation of
litigation. Id. at § 71.051(b)(6).
“The final factor that the trial court must consider is whether

the dismissal would result in unreasonable duplication or

proliferation of litigation.” In re Mantle Oil & Gas, 426 S.W.3d at

197. A dismissal would not result in unreasonable duplication or

proliferation of litigation, because once the case is resolved in Texas

or Kansas the dispute will not be required to be litigated elsewhere.

e. Conclusion.

This Court’s opinions in In re Mantle Oil & Gas and In re

Omega Protein instruct that when a defendant company is located in

Texas but a damaging event occurs in another state a key aspect of the

inquiry is where the negligence occurred. Relators’ directing of the

7 Flaiz v. Moore, 359 S.W.2d 872, 875 (Tex. 1962) (a court should only
“refuse to hear a suit when the foreign law is so dissimilar to this laws of
this state as to be difficult or incapable of enforcement here”); Gurvich v.
Tyree, 694 S.W.2d 39, 46 (Tex. App.—Corus Christi 1985, no writ) (“there
is no proof that the laws of Louisiana and Texas differ or that the law of
Texas could not be applied effectively in Louisiana”).
32
issue onto the fact of an explosion and resulting injuries is akin to

saying that the earth is round. The roundness of the earth is no

longer contested, just as the fact that an explosion which resulted in

injuries to the Colliers and the Niemeyers is not contested. What is

contested is whether the acts and omissions of Relators in Sugar

Land, Texas caused the explosion and resulting injuries. All of those

witnesses and documents bearing on this question are located in

Texas. The trial court was attuned to the significance of this point

and its relevance to the forum non conveniens issue as is obvious

from its comments: “And that is an important gap because that

determines in my mind whether this should be a Kansas case or this

should be a Texas case” (App. 2, pp. 18-22). Now, Relators would

have this Court conclude that the trial court abused its discretion even

though its analytical focus was on the very factors that this Court has

said in In re Mantle Oil & Gas and In re Omega Protein are the most

relevant when confronted with a factual scenario like the one in this

case; namely, on whether “the injury resulted from acts or omissions

that occurred in Texas.” In re Mantle Oil & Gas, 426 S.W.3d at 194

(citing In re Ensco, 311 S.W.3d at 926 and In re BPZ Res., 359 S.W.3d

at 875).

33
 PRAYER
Accordingly, Real-Parties-in-Interest, Donald R. Collier,

Jennifer J. Collier, Dale A. Niemeyer, and Wendy Niemeyer, request

that the Court deny the application for writ of mandamus.

Respectfully submitted,

/s/Timothy A. Hootman
Timothy Hootman,
SBN 09965450
2402 Pease St
Houston, TX 77003
713.247.9548; 713.583.9523 (f)
Email: thootman2000@yahoo.com
/s/ David M. Medina
David M. Medina SBN 00000088
davidmedina@justicedavidmedina.com
THE MEDINA LAW FIRM
5300 Memorial Dr., Ste. 890
Houston, TX 77007
/s/Gary M. Riebschlager
Gary M. Riebschlager
SBN 16902200
Email: gary@riebschlagerlaw.com
GARY M. RIEBSCHLAGER LAW FIRM,
PC
801 Congress, Ste 250
Houston, TX 77002
281.904.1404
/s/Richard L. Tate
Richard L. Tate
SBN 19664460
Email: rltate@tate-law.com
TATE, MOERER & KING, LLP
206 South 2nd St
34
 Richmond, TX 77469
281.341.0077
ATTORNEYS FOR REAL PARTIES IN
INTEREST, DONALD R. COLLIER,
JENNIFER J. COLLIER, DALE A.
NIEMEYER, AND WENDY NIEMEYER

CERTIFICATE OF WORD COUNT
I hereby certify that, in accordance with Rule 9.4 of the Texas

Rules of Appellate Procedure, that the number of words contained in

this document are 6,372 according to the computer program used to

prepare this document.

Dated: October 9, 2014.
/s/Timothy A. Hootman_____
Timothy A. Hootman

35
 CERTIFICATE OF SERVICE
I hereby certify that, in accordance with Rule 9.5 of the Texas

Rules of Appellate Procedure, I have served the forgoing document

upon the following attorneys by personal mail, by commercial

delivery service, or by electronic service:

Phillip D. Sharp
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
808 TRAVIS, 20TH F.
Houston, TX 77002
Lee M. Smithyman
SMITHYMAN & ZAKOURA, CHARTERED
750 West 110th St
Overland Park, Kansas 66210-2362
Dated: October 9, 2014
/s/Timothy A. Hootman
Timothy A. Hootman

RULE 52.3(J) CERTIFICATION
I certify that I have reviewed this response and have concluded

that every factual statement in the response is supported by

competent evidence included in the appendix of documents attached

hereto.

Dated: October 9, 2014.

/s/Timothy A. Hootman_____
Timothy A. Hootman

36