ACCEPTED 15-25-00014-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 6/27/2025 10:11 AM No. 15-25-00014-CV CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS In the Court of Appeals AUSTIN, TEXAS for the Fifteenth District of Texas 6/27/2025 10:11:11 AM CHRISTOPHER A. PRINE Clerk
Blackstone Holdings III LP, et al., Appellants, v. Primexx Energy Opportunity Fund, LP., et al., Appellees.
Appeal from the First Business Court Division Dallas County, Texas Honorable Bill Whitehill, Judge Presiding
Appellants’ Reply Brief
Christopher J. Schwegmann Yaman Desai Texas Bar No. 24051315 Texas Bar No. 24101695 cschwegmann@lynnllp.com ydesai@lynnllp.com David S. Coale Kyle A. Gardner Texas Bar No. 00787255 Texas State Bar No. 24116412 dcoale@lynnllp.com kgardner@lynnllp.com Christopher W. Patton Jessica D. Cox Texas Bar No. 24083634 Texas Bar No. 24114769 cpatton@lynnllp.com jcox@lynnllp.com Lynn Pinker Hurst & Schwegmann LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 ORAL ARGUMENT Telephone: (214) 981-3800 REQUESTED Facsimile: (214) 981-3839 TABLE OF CONTENTS Table of Contents ........................................................................................... i Table of Authorities ....................................................................................... ii Summary of Reply Argument ........................................................................ 1 Reply Argument ............................................................................................ 2 I. Appellants did not waive their special appearance. ................... 2 A. The text of Rule 120a does not support Appellees’ waiver argument. .............................................................. 2 B. Appellees argue inapplicable law on the effect of dismissal of the First Lawsuit. .......................................... 5 C. Public policy favors reversal.............................................. 6 II. An alternative basis for affirming the business court’s denial does not exist. .................................................................. 7 A. Appellees did not plead or prove specific jurisdiction. ....................................................................... 7 B. Appellees also fail to establish judicial estoppel. .............. 8 Certificate of Service..................................................................................... 11 Certificate of Compliance ............................................................................. 11
i TABLE OF AUTHORITIES Cases Ford Motor Co. v. Cejas, No. 09-16-00280-CV, 2018 WL 1003791 (Tex. App.—Beaumont Feb. 22, 2018, no pet.) ................................ 3, 4 Galley v. Apollo Associated Serves., Ltd., 177 S.W.3d 523 (Tex. App.—Houston [1st Dist.] 2005, no pet.)............................................. 9 Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (Tex. 2014) ........................ 2 Massachusetts Bay Ins. Co. v. Adkins, 615 S.W.3d 580 (Tex. App.—Houston [1st Dist.] 2020, no pet.) ............................................ 5 Pulmosan Safety Equip Corp. v. Lamb, 273 S.W.3d 829 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) ................................... 8 Rush v. Barrios, 56 S.W.3d 88 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) ................................................................................ 6 TIC V. Cent. Dallas 3, LLC v. Envirobusiness, Inc., 463 S.W.3d 71 (Tex. App.—Dallas 2014, pet. denied).................................................. 5 Waterman Steamship Corp. v. Ruiz, 355 S.W.3d 387 (Tex. App.— Houston [1st Dist.] 2011, pet. denied) ................................................. 4
ii Summary of Reply Argument The First Lawsuit was filed on December 12, 2022 in the 298th District
Court and dismissed for improper venue on March 29, 2023. This lawsuit (the Fourth Lawsuit) was filed on October 24, 2024. The central question presented by the business court’s opinion is whether these two lawsuits (and the two in between) constitute one “entire proceeding” for the purposes of Rule 120a, such that Appellants’ successful motion to dismiss in the First Lawsuit waives their special appearance in the Fourth Lawsuit. The answer is no. This answer is supported by the plain language of the Rule, which permits special appearances as to an entire, single lawsuit or the severable claims therein. And it is consistent with the throughline weaving together the cases relied upon by the parties: waiver arguments predicated on pleadings in prior lawsuits are rejected, but a transferred lawsuit is still one proceeding. Appellees do not grapple with the Rule’s statutory construction. Nor do they offer a consistent interpretation of these cases. Instead, they merely fall back on the similarities between the First and Fourth Lawsuits. But the Rule
does not provide for an overlap exception, no prior court has inserted an overlap exception, and one should not be read into the Rule. With Appellees’ waiver argument dispelled, no alternative basis exists
for affirming the business court’s special appearance denial. Appellees failed to sufficiently allege facts supporting specific jurisdiction, and the record is devoid of evidence justifying its exercise. And Appellees fail to identify a prior
1 inconsistent statement, necessitating rejection of their judicial estoppel argument.
Reply Argument I. Appellants did not waive their special appearance.
A. The text of Rule 120a does not support Appellees’ waiver argument.
Appellants’ opening brief details the proper construction of Rule 120a’s “entire proceeding” phrase. The clause, construed as part of its broader sentence, refers to a particular lawsuit. 1 It does not encompass separately filed lawsuits, regardless of similarities in the facts or claims in the two cases. Reading the sentence in its entirety, Rule 120a allows a party to file a special appearance as to an entire case or to a subset of severable claims within that case. Appellees do not counter this analysis of the Rule’s plain language. Instead, they offer two misguided arguments. First, they drumbeat the similarities between the First and Fourth Lawsuits. But Rule 120a’s “entire proceeding” phrase does not contain a caveat for distinct though similar
cases. Nor does Rule 120a call for an analysis of the degree of overlap in parties, claims, or underlying facts. And Appellees do not cite any prior cases in which the court conducted the type of overlap analysis they seem to
1 See Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563–65 (Tex. 2014) (describing
“action and “proceeding” as synonyms, and how “action” refers to “an entire lawsuit” or “proceeding”).
2 proffer. Appellees’ attempt to read in a similarity analysis is unsupported by the Rule.
Second, Appellees fabricate a strawman by miscasting Appellants’ statutory construction as an attempt “to restrict Rule 120a to a specific cause number.”2 This purported restriction is nowhere in Appellants’ brief. Rather,
as Appellants explain, “entire proceeding” refers to a single case, whether transferred or removed and irrespective of a change in cause number, but not to separately filed lawsuits. Appellants’ construction is reinforced by the three cases discussed by the parties. The most analogous case, Ford Motor Co. v. Cejas, is particularly instructive. There, like here, the defendants filed a motion to dismiss (in that case, for forum non conveniens) in the initial lawsuit and a special appearance in a subsequent lawsuit. 3 In rejecting the same waiver argument, the court determined that the subsequent lawsuit was “a new proceeding initiated by the filing of a new petition.”4 The two lawsuits were separate proceedings even though they involved the same parties and the same underlying car accident.5
Same here. The Fourth Lawsuit was a “new proceeding initiated by the filing of a new petition,” and therefore a different proceeding for the purposes of Rule 120a, irrespective of the overlap with the First Lawsuit.
2 Appellees’ Br. at 15. 3 Ford Motor Co. v. Cejas, No. 09-16-00280-CV, 2018 WL 1003791, at *1–2 (Tex.
App.—Beaumont Feb. 22, 2018, no pet.). 4 Id. at *5. 5 See id. at *1.
3 Appellees’ attempt to distinguish Cejas only further undermines their waiver argument. As Appellees point out, in Cejas, the MDL court “explicitly
contemplated re-evaluating the new action on jurisdictional grounds.”6 In fact, after the new action was filed, the MDL re-opened the old case and administratively consolidated it with the new matter.7 Even still, the court
determined that the second matter was a “new proceeding,” and defendants’ special appearances had not been waived. Waterman Steamship Corp. v. Ruiz is also instructive, particularly given Appellees’ “virtually identical” argument. Waterman Steamship involved two lawsuits—the first filed by Hicks and the second where Hicks intervened—involving the exact same incident and against the same defendants alleging “substantively identical” underlying facts. 8 The defendants filed a special appearance in the second case but not the first. But, again, the court determined that that the defendants had not waived their special appearances by not raising them in the first case. Appellees attempt to distinguish Waterman Steamship by focusing on the separate plaintiffs. 9 But that detail misses the forest through the trees.
Appellees’ overarching contention that the First and Fourth Lawsuits are one
6 Appellees’ Br. at 19 (citing Cejas, 2018 WL 1003791, at *1). 7 Cejas, 2018 WL 1003791, at *2. 8 Waterman Steamship Corp. v. Ruiz, 355 S.W.3d 387, 397 (Tex. App.—Houston [1st
Dist.] 2011, pet. denied). 9 Appellees also seek to differentiate Waterman Steamship by contending that “any
waiver . . . was extinguished” by the first plaintiff’s voluntary dismissal. Appellee Br. at 18 (citing Waterman Steamship, 355 S.W.3d at 399). If so, Appellees do not identify how that voluntary dismissal was materially different than their own voluntary dismissal of the Third Lawsuit. 1CR0009–10.
4 proceeding based on “virtually identical” facts is dispelled by Waterman Steamship, where a “substantively identical” first lawsuit was insufficient to
invoke waiver in a second lawsuit.10 Conversely, Massachusetts Bay Ins. Co. v. Adkins, relied on by Appellees, is inapposite. Massachusetts Bay involved just one case, in which the defendant filed an answer and then subsequently filed a special appearance after the case was transferred to the MDL court. 11 The transfer was merely a continuation of the same case. 12 The MDL Rules supported that
conclusion, requiring the original trial court to “transmit the case file” to the MDL court and, upon a transfer back, to “reopen the trial court file” under the prior cause number.13 The transfer of a proceeding analyzed in
Massachusetts Bay stands in contrast to the present circumstance, where the First Lawsuit was entirely dismissed and each subsequent lawsuit was filed as an wholly new case with a new original petition.
B. Appellees argue inapplicable law on the effect of dismissal of the First Lawsuit.
The First Lawsuit was dismissed by the 298th District Court for improper venue, having the effect of “plac[ing] the parties in the position that they were in before the court’s jurisdiction was invoked.”14 Appellees seek to
10 Id. 11 Massachusetts Bay Ins. Co. v. Adkins, 615 S.W.3d 580, 592 (Tex. App.—Houston [1st
Dist.] 2020, no pet.). 12 Id. at 599. 13 Id. 14 1CR187–88; See TIC V. Cent. Dallas 3, LLC v. Envirobusiness, Inc., 463 S.W.3d 71, 77
(Tex. App.—Dallas 2014, pet. denied).
5 minimize that effect, citing examples of voluntary dismissals. But the First Lawsuit was not voluntarily dismissed. And unlike dismissals voluntarily
taken by a party, a dismissal without prejudice ordered by a court wipes the slate clean “as if the suit had never been brought.”15 Appellees’ voluntary dismissal argument is inapplicable to this case.
Appellees’ reliance on Rush v. Barrios suffers from the same defect. In Rush, the appellant intervened in an underlying products liability case before voluntarily dismissing his request for intervention. 16 Because the appellant
voluntarily “withdrew his plea,” he could not assert a special appearance in the subsequent declaratory judgment action. 17 In contrast, the court’s dismissal of the First Lawsuit was not voluntary, and therefore did place the parties in the position they occupied prior to the First Lawsuit being filed. 18
C. Public policy favors reversal.
As Appellants’ opening brief details, the business court’s holding opens the door to a host of “consent” arguments, forcing future parties and courts
to analyze the degree of relatedness needed between two separate lawsuits to constitute a waiver of a special appearance. In response, Appellees do not
15 Id. 16 Rush v. Barrios, 56 S.W.3d 88, 104 (Tex. App.—Houston [14th Dist.] 2001, pet.
denied). 17 Id. 18 Rush is also distinguishable for two additional reasons: First, Rush was unique by
virtue of being a declaratory judgment action, where the court only had jurisdiction “over [the] declaratory judgment action seeking a determination of the parties’ rights to attorney’s fees generated by [the] underlying products case” because it had jurisdiction “over the underlying controversy.” Id. at 105–06. Second, in the underlying action, the appellant affirmatively sought recovery. Id. at 105. Neither characteristic is present here.
6 dispel these practical and policy considerations. Instead, they merely contend that “there was no need” for the business court to consider them.
But that does not invalidate the policy concerns. Appellants instead turn to their own policy consideration—the interest of Texas courts in adjudicating the broader dispute. Appellees ignore that a Texas court is adjudicating the remainder of the dispute; the parties that executed the operative partnership agreement have continued to litigate, and the business court has continued to issue rulings. And Appellees presuppose Appellants’ involvement, but Texas courts have no interest in adjudicating claims against Appellants where Texas courts lack personal jurisdiction over them.
II. An alternative basis for affirming the business court’s denial does not exist.
A. Appellees did not plead or prove specific jurisdiction.
Appellees do not identify how they met their initial jurisdictional pleading burden as to each Appellant. Nor can they, because they did not.
But even if Appellees had cleared that bar, they still failed to establish the existence of specific jurisdiction through evidence. Appellees offer only two purported justifications for the exercise of specific jurisdiction: (1) certain Appellants “invested hundreds of millions of dollars into Primexx;” and (2) other Appellants “received hundreds of
7 millions of dollars in Callon shares as a result of the forced sale.”19 Both are woefully insufficient to confer jurisdiction.
First, Appellees’ “investment” basis is specious at best. As reflected in the record, two Appellants—Blackstone Energy Partners II LP and Blackstone Capital Partners VII LP—committed to invest funds into BPP HoldCo LLC (another co-defendant), which, in turn, would invest into Primexx.20 These investments occurred in 2016—more than five years before the Primexx transaction Appellees challenge. 21 The investment would
hardly be mentioned, much less “the focus of the trial.” 22 Second, Appellants’ after-the-fact receipt of Callon shares is equally irrelevant. Appellees do not explain how distribution of shares months after the transaction could constitute an operative fact in a case challenging the value of the transaction itself. And even if these facts were somehow operative, mere receipt of funds from a transaction touching Texas is
insufficient to confer jurisdiction. 23
B. Appellees also fail to establish judicial estoppel.
As an initial matter, Appellees’ judicial estoppel argument dances around one critical inconsistency—judicial estoppel requires “a sworn,
19 Appellees’ Br. at 31. 20 1CR0050. 21 Id. 22 See Pulmosan Safety Equip Corp. v. Lamb, 273 S.W.3d 829, 839 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied) (in identifying the operative facts, courts look to “the facts that would be the focus of the trial”). 23 See Appellants’ Br. at 32 n.76 (collecting cases).
8 inconsistent statement be made in a prior judicial proceeding” and “does not apply to contradictory positions taken in the same proceeding.”24
If, as Appellees’ contend, the First Lawsuit and Fourth Lawsuit are purportedly the same proceeding (they are not), then judicial estoppel cannot apply.
Regardless, judicial estoppel is inapplicable because Appellees do not identify a prior inconsistent statement. The sole statements Appellees reference are from Appellants’ Motion to Dismiss for Improper Venue in the First Lawsuit.25 In that motion, Appellants argued that the Partnership Agreement and its forum-selection clause applies only to signatories, such as Appellees, and does not bind or confer jurisdiction over Appellants.26 That
contention is entirely consistent with Appellants’ statements here: Appellants “are not parties to the relevant Limited Partnership Agreement” and there are no basis to bind or confer jurisdiction over Appellants.27
Because both positions are consistent and rely on the same underlying contractual language, they do not give rise to judicial estoppel.
24 Galley v. Apollo Associated Serves., Ltd., 177 S.W.3d 523, 528–29 (Tex. App.—
Houston [1st Dist.] 2005, no pet.) (emphasis added). 25 Appellees’ Br. at 26. 26 See 1CR0178. 27 See 1CR0235.
9 DATE: June 27, 2025 Respectfully submitted,
/s/ David S. Coale Christopher J. Schwegmann Texas Bar No. 24051315 cschwegmann@lynnllp.com David S. Coale Texas Bar No. 00787255 dcoale@lynnllp.com Christopher W. Patton Texas Bar No. 24083634 cpatton@lynnllp.com Yaman Desai Texas Bar No. 24101695 ydesai@lynnllp.com Kyle A. Gardner Texas State Bar No. 24116412 kgardner@lynnllp.com Jessica D. Cox Texas Bar No. 24114769 jcox@lynnllp.com Lynn Pinker Hurst & Schwegmann LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 Telephone: (214) 981-3800 Facsimile: (214) 981-3839
Attorneys for Appellants
10 Certificate of Service
The undersigned hereby certifies that a true and correct copy of the above and foregoing document was served on all counsel of record via eFileTexas on June 27, 2025.
/s/ David S. Coale David S. Coale
Certificate of Compliance I certify that this Brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains 2,131 words, including words in screenshots, and excluding parts exempted by Tex. R. App. P. 9.4(i)(1). June 27, 2025
/s/ David S. Coale David S. Coale
11 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Kerri Jones on behalf of Yaman Desai Bar No. 24101695 kjones@lynnllp.com Envelope ID: 102514557 Filing Code Description: Brief Requesting Oral Argument Filing Description: 2025-06-27 Appellants' Reply Brief (Attenuated BX Defendants SA) Status as of 6/27/2025 10:39 AM CST
Associated Case Party: Blackstone Holdings III LP, et al.
Name BarNumber Email TimestampSubmitted Status
Julie Archuleta jarchuleta@lynnllp.com 6/27/2025 10:11:11 AM SENT
David S.Coale dcoale@lynnllp.com 6/27/2025 10:11:11 AM SENT
Christopher JSchwegmann cschwegmann@lynnllp.com 6/27/2025 10:11:11 AM SENT
Christopher W.Patton cpatton@lynnllp.com 6/27/2025 10:11:11 AM SENT
Kay Ridenour kridenour@lynnllp.com 6/27/2025 10:11:11 AM SENT
Scott Smoot ssmoot@lynnllp.com 6/27/2025 10:11:11 AM SENT
Yaman Desai ydesai@lynnllp.com 6/27/2025 10:11:11 AM SENT
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Case Contacts
Name BarNumber Email TimestampSubmitted Status
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Associated Case Party: Primexx Energy Opportunity Fund, LP., et al.
Name BarNumber Email TimestampSubmitted Status
Bryan Caforio bcaforio@susmangodfrey.com 6/27/2025 10:11:11 AM SENT
Michelle Williams mwilliams@susmangodfrey.com 6/27/2025 10:11:11 AM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Kerri Jones on behalf of Yaman Desai Bar No. 24101695 kjones@lynnllp.com Envelope ID: 102514557 Filing Code Description: Brief Requesting Oral Argument Filing Description: 2025-06-27 Appellants' Reply Brief (Attenuated BX Defendants SA) Status as of 6/27/2025 10:39 AM CST
Associated Case Party: Primexx Energy Opportunity Fund, LP., et al.
Michelle Williams mwilliams@susmangodfrey.com 6/27/2025 10:11:11 AM SENT
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