Osmose Utilities Services v. Navarro County Electric Cooperative

2025 Tex. Bus. 3

• Court: Texas Business Court
• Decided: January 31, 2025
• Docket: 24-BC01A-0011
• Status: Published

Opinion

2025 Tex. Bus. 3

The Business Court of Texas, First Division

Osmose Utilities Services, Inc., § Plaintiff, § v. § Navarro County Electric § Cause No. 24-BC01A-0011 Cooperative, § Defendant. § § § ═══════════════════════════════════════ Syllabus 1 ═══════════════════════════════════════

Granting a motion for remand, the Court holds: (1) removal of an

action to the Business Court means removal of the entire suit, and (2)

regardless of whether an attempted partial removal presents a jurisdictional

defect, the 2022 commencement date of the underlying lawsuit forecloses

jurisdiction over the action by the Business Court.

1 This syllabus is provided for the convenience of the reader; it is not part of the Court's opinion and should not be cited or relied upon as legal authority.

1 2025 Tex. Bus. 3

Osmose Utilities Services, Inc., § Plaintiff, § v. § Navarro County Electric § Cause No. 24-BC01A-0011 Cooperative, § Defendant. § § § ═══════════════════════════════════════ Opinion and Order for Remand ═══════════════════════════════════════

1 Before the Court is Navarro County Electric Cooperative, Inc.’s Urgent

Motion to Remand, challenging removal on the basis that partial removal is

not permissible under the Government Code, and that the action is not within

the Court’s jurisdiction or authority. The Court agrees, and orders the action

remanded back to the district court.

1 I. Procedural Background

2 The claims in Osmose Utilities Services, Inc.’s notice of partial

removal were first asserted in underlying-plaintiff Eddie Martin’s personal

injury suit, filed in Ellis County in September 2022. Martin sued multiple

defendants, including Navarro County Electric Cooperative, Inc., for severe

injuries due to electrocution, later adding Osmose as a defendant. Osmose

and NCEC report that NCEC settled with Martin in September 2024.

3 On October 16, 2024, Osmose filed a crossclaim against NCEC

seeking declaratory relief and contractual indemnification for Martin’s

claims against Osmose pursuant to a General Services Agreement between

the two co-defendants.

4 NCEC responded two days later with a counterclaim against Osmose,

also seeking declaratory relief and alleging breach of the GSA and a

subsequent pole inspection agreement.

5 On November 4, 2024, Osmose filed a partial removal notice of

NCEC’s counterclaim and Osmose’s crossclaim against NCEC for

adjudication in the Business Court.

6 NCEC moves for remand on numerous grounds. Osmose opposes

remand.

2 II. Applicable Law

7 The Texas Business Court was “created September 1, 2024,” and its

governing law “appl[ies] to civil actions commenced on or after September 1,

2024.” Act of May 25, 2023, 88th Leg., R.S., ch. 380, §§5, 8, 2023 Tex.

Sess. Law Serv. 919, 929. Accordingly, this Court has held repeatedly that it

lacks jurisdiction or authority to hear actions commenced before September

1, 2024. See, e.g., Energy Transfer LP v. Culberson Midstream LLC, 2024

Tex. Bus. 1, 24-BC01B-0005, 2024 WL 5320611 (Oct. 30, 2024); Jorrie v.

Charles, 2024 Tex. Bus. 4, 24-BC04B-0001, 2024 WL 5337409 (Nov. 7,

2024); Winans v. Berry, 2024 Tex. Bus. 5, 24-BC04A-0002, 2024 WL

5337410 (Nov. 7, 2024).

8 The Fifteenth Court of Appeals recently denied a petition for writ of

mandamus and motion for temporary relief following a consistent decision

from this Division. In re Westdale Asset Mgmt., Ltd., No. 15-24-00135-CV,

2025 WL 300912 (Tex. App.—15th Jan. 24, 2025, orig. proceeding). Thus,

subject to the outcome of a permissive appeal currently before the Fifteenth

Court of Appeals, it is currently accepted that all actions commenced before

September 1, 2024, fall outside this Court’s jurisdiction. See Lone Star NGL

Product Servs., LLC v. EagleClaw Midstream Ventures LLC, 2024 Tex. Bus.

3 8, 2024 WL 5337407 (Dec. 20, 2024) (granting permissive appeal where

parties jointly raise the issue of whether a pre-September 1 case can be

removed based on the parties’ subsequent agreement consenting to the

Business Court’s jurisdiction).

9 Still, the Legislature did not provide express definitions for the terms

“civil action” or “action” as used in H.B. 19 or as codified in Chapter 25A of

the Texas Government Code. See Act of May 25, 2023, 88th Leg., R.S., ch.

380; TEX. GOV’T CODE § 25A.001, et seq. In a prior decision, this Court held

that Section 8 of H.B. 19 means that removal to the Business Court is only

available for “cases begun on or after September 1, 2024.” Tema Oil & Gas

Co. v. ETC Field Servs. LLC, 2024 Tex. Bus. 3, at ¶14-18, 24-BC08B-0001,

2024 WL 5337411, at *3-4 (Nov. 6, 2024). As part of that opinion, the Court

held that “[a] civil action is a lawsuit.” Id. at ¶15.

10 Yet, the Court stopped short of holding that “action,” as used in

Chapter 25A, always refers to the entirety of a case or lawsuit. C Ten 31 LLC

v. Tarbox, 2025 Tex. Bus. 1, at ¶31, 24-BC03A-0004, 2025 WL 224542, at

*8 (Jan. 3, 2025). In C Ten 31, one of the questions at issue was whether the

amount-in-controversy jurisdictional thresholds had to be satisfied on a per-

claim basis. This Court held that the amount-in-controversy requirement is

4 not a “per-claim minimum” but could be satisfied by the amount at issue in

the action as a whole. Id. at ¶26.

11 The Third Division explained: “[T]he Court does not hold that the term

‘action’ can never refer to less than all claims in a suit regardless of whether

the claims are properly joined and within the Court’s jurisdiction.” Id. at

¶32. The Court noted that Chapter 25A contemplates remand of claims

outside the boundaries of this Court’s jurisdiction, such as supplemental

claims where consent among the parties is lacking. Id. (citing TEX. GOV’T

CODE §§ 25A.004(f), (g)(2)-(5), (h); 25A.006(b)-(d)). In such instances, the

Court left open the possibility that a remanded action may encompass fewer

than all of the claims in the removed action.

12 Statutory interpretation requires construction of the statute “as a

whole,” considering the words chosen within context. Miles v. Tex. Cent.

Railroad & Infrastructure, Inc., 647 S.W.3d 613, 619 (Tex. 2022) (quoting

Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019)). “If the

statute's plain language is unambiguous, we interpret its plain meaning,

presuming that the Legislature intended for each of the statute's words to

have a purpose and that the Legislature purposefully omitted words it did not

include.” Id.

5 13 “The statutory terms bear their common, ordinary meaning, unless the

text provides a different meaning or the common meaning leads to an absurd

result.’” Silguero, 579 S.W.3d at 59 (citing Fort Worth Transp. Auth. V.

Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018)); see also, TEX. GOV’T CODE §

312.002(a) (“Except as provided by Subsection (b) [concerning particular

trades, subject matter, or terms of art], words shall be given their ordinary

meaning.”). “The absurdity safety valve is reserved for truly exceptional

cases, and mere oddity does not equal absurdity.” Combs v. Health Care

Servs. Corp., 401 S.W.3d 623, 630 (Tex. 2013).

14 Only in the case of ambiguity should a court consider extrinsic factors

such as legislative history or the effect of a particular construction. See TEX.

GOV’T CODE § 311.023; but see also, Tex. Health Presbyterian Hosp. of Denton

v. D.A., 569 S.W.3d 126, 136 (Tex. 2018) (“[W]e do not consider legislative

history or other extrinsic aides to interpret an unambiguous statute because

the statute’s plain language most reliably reveals the legislature’s intent.”).

“Only when statutory text is susceptible of more than one reasonable

interpretation is it appropriate to look beyond its language for assistance in

determining legislative intent.” Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430,

452 (Tex. 2012) (citing In re Smith, 333 S.W.3d 582, 586 (Tex. 2011)).

6 III. Discussion

15 NCEC’s motion raises numerous grounds objecting to this Court’s

jurisdiction. The Court does not reach several of those issues, including:

whether a cross-claim or counterclaim can or must be severed before it can

proceed separately from another claim in the business court or another court

of original jurisdiction; whether a claim for contractual damages calculated,

either in whole or in part, based on another party’s damages for bodily injury

is within this Court’s jurisdiction; and whether the action arises from a

qualified transaction as that term is defined in Chapter 25A. Instead, the

motion is resolved by a determination that Chapter 25A permits only

removal of a lawsuit, and not individual claims within a lawsuit, and

secondarily that this lawsuit commenced before September 1, 2024, making

removal improper.

A. Interpretation of “Action”

16 The Court first addresses NCEC’s contention that the partial removal

is improper where Chapter 25A only authorizes the removal of an action,

with “action” referring to the entire lawsuit. To date, every opinion from the

Business Court has interpreted the term action to mean a lawsuit. See, e.g.,

Tema Oil & Gas, 2024 Tex. Bus. 3 at ¶15; C Ten 31, 2025 Tex. Bus. 1 at ¶25-

7 31. While the procedural history and specific issues in this case differ from

those addressed in previous opinions, such distinguishing facts do not

change the meaning of action.

1. Plain Meaning

17 The analysis must start with the statute’s plain meaning. As this Court

has previously noted, the plain meaning of action is a lawsuit. Tema Oil &

Gas, 2024 Tex. Bus. 3 at ¶15 (citing TEX. CIV. PRAC. & REM. CODE ANN. §

11.001(2); Civil Action, Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/civil%20action (last visited

November 6, 2024)); see also, C Ten 31, 2025 Tex. Bus. 1 at ¶25-31.

18 The Court cannot read into the statute a definition of action broader

than its ordinary meaning. “We presume the Legislature included each word

in the statute for a purpose and that words not included were purposefully

omitted.” In re Panchakarla, 602 S.W.3d 536, 540 (Tex. 2020) (quoting

Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015)). Where the

Legislature has intended “action” to mean something other than a lawsuit,

the statute has expressly included such a definition. See, e.g., TEX. CIV. PRAC.

& REM. CODE § 27.001(6) (defining “legal action” in Texas’ anti-SLAPP law

to mean “a lawsuit, cause of action, petition, complaint, cross-claim, or

8 counterclaim or any other judicial pleading or filing that requests legal,

declaratory or equitable relief,” excluding certain other actions, motions, or

proceedings.). The Court must presume that the absence of a similar

definition in Chapter 25A is intentional. Panchakarla, 602 S.W.3d at 540.

19 The inquiry ends here unless the statute is ambiguous or leads to an

absurd result. Silguero, 579 S.W.3d at 59.

2. Ambiguity

20 Throughout Chapter 25A, the Legislature uses various terms to refer to

lawsuits or parts thereof. In defining the Court’s jurisdiction and creating the

removal and remand procedures for the Court, the Legislature uses the term

action predominantly, but not exclusively. TEX. GOV’T CODE §§ 25A.004,

25A.006. And as noted above, each word used by the Legislature must be

presumed to be intentional and purposeful. Miles, 647 S.W.3d at 619.

21 The Legislature expressly used the term “case” in Section 25A.006

subsections (i) and (j). These provisions deal with the consequences of

removal on the due order of pleading, and the ability to raise defects in venue

or objections to personal jurisdiction, respectively. TEX. GOV’T CODE §

25A.006(i), (j). The Legislature’s discussion of the effect on certain rights of

removal of a case immediately following the provisions for removal of an

9 action indicate via context that, at least here, case and action are used

synonymously. See Miles, 647 S.W.3d at 619.

22 The Legislature also uses the term claim when setting forth the Court’s

jurisdiction, both for those matters included and those excluded. TEX. GOV’T

CODE § 25A.004(b)-(h). Of note, Subsection 25A.004(b)(3) uses claim and

action within the same sentence. That provision establishes the Court’s

jurisdiction over “an action in which a claim under a state or federal

securities or trade regulation law is asserted against [certain parties].” TEX.

GOV’T CODE § 25A.004(b)(e). Here, “an action in which a claim . . . is

asserted” has only one reasonable interpretation: a lawsuit in which such a

claim is pending.

23 Subsection (g) admittedly does not follow suit. It reads, in part,

“[u]nless the claim falls within the business court's supplemental

jurisdiction, the business court does not have jurisdiction of: (1) a civil

action: (A) brought by or against a governmental entity; or (B) to foreclose

on a lien on real or personal property; . . .” TEX. GOV’T CODE § 25A.004(f). In

this one instance, it could be argued that action and claim are used

synonymously, in that the particular actions listed are claims over which the

10 business court does not have jurisdiction unless it exists via supplemental

jurisdiction. See Miles, 647 S.W.3d at 619.

24 Yet, that one instance among 18 other uses of action in the same

section—not to mention the 40 uses of action in Section 25A.006—all of

which are reasonably read according to the word’s ordinary meaning, is not

sufficient to create a second reasonable interpretation of Chapter 25A. See

TEX. GOV’T CODE §§ 25A.004, 25A.006. Ambiguity requires that the

statutory text be subject to more than one reasonable interpretation. See Sw.

Royalties, Inc. v. Hegar, 500 S.W.3d 400, 405 (Tex. 2016) (citing Combs v.

Roark Amusement & Vending, L.P., 422 S.W.3d 632, 635 (Tex. 2013)); Tex.

Mut. Ins. Co. v. Ruttiger, 381 S.W.3d at 452 (citing Smith, 333 S.W.3d at

586). The Court therefore finds that the Legislature’s use of action does not

render Chapter 25A ambiguous.

3. Absurdity

25 Osmose argues against remand on the basis that a narrow reading of

“action” would lead to absurd results. In particular, Osmose argues that it

would be absurd to interpret the statute to require that claims over which the

Court unquestionably lacks jurisdiction be swept up in a removal, only to be

dismissed or remanded upon arrival. The Court agrees that this procedure

11 may be imperfect from the standpoint of judicial economy but does not agree

that such an interpretation rises to the level of absurdity. As noted above,

“[t]he absurdity safety valve is reserved for truly exceptional cases, and mere

oddity does not equal absurdity.” Combs, 401 S.W.3d at 630.

26 The procedure for removal of actions was designed to ensure that

determinations of the business court’s jurisdiction are made in, and by, the

business court. See TEX. GOV’T CODE § 25A.006(b), (d) (mandating that the

business court dismiss or remand actions that are not within its jurisdiction);

see also, TEX. R. CIV. P. 355-357. Osmose’s response expressly recognizes

this to be the case. Because the governing statute and procedural rules

contemplate the business court being the initial arbiter of its own

jurisdiction, a process that achieves that objective cannot be absurd. Thus,

the Court does not find that applying the ordinary meaning of action would

lead to absurd results.

4. Conclusion

27 In sum, the sole reasonable interpretation of Chapter 25A with respect

to actions is that an action means a lawsuit, and does not refer to each

individual claim within a lawsuit. See Miles, 647 S.W.3d at 619; Silguero,

579 S.W.3d at 59; Tex. Mut. Ins. Co., 381 S.W.3d at 452. Because the

12 Court’s governing law and procedural rules only authorize removal of

actions, Osmose’s attempt to remove only part of the underlying case was

improper. See TEX. GOV’T CODE § 25A.006(d); TEX. R. CIV. P. 355(f).

28 The Court does not address the issue of whether this defect is

jurisdictional, or relatedly, whether it is curable, because NCEC’s motion for

remand is already subject to disposition on other established grounds as set

forth below.

B. Commencement of Action

29 NCEC further argues that the Business Court must remand Osmose’s

cross-claim and NCEC’s counterclaim because they are part of an action filed

in 2022, before the creation of the Business Court. NCEC is correct that

Chapter 25A applies only to “actions commenced on or after September 1,

2024.” See Act of May 25, 2023, 88th Leg., R.S., ch. 380, § 8. On this basis,

the Court finds that NCEC’s motion is well-taken and must be granted.

30 With the action being the underlying lawsuit, the relevant date is the

date on which suit was filed in the district court—not the date on which the

parties filed the discrete claims sought to be removed to this Court. See TEX.

R. CIV. P. 22 (“A civil suit in the district or county court shall be commenced

by a petition filed in the office of the clerk.”). The action was commenced

13 when Martin filed his original petition in September 2022. Accordingly, as

the Court has held in numerous prior decisions, the Court lacks jurisdiction

over the action and it must be remanded. See, e.g., Energy Transfer LP, et al.,

v. Culberson Midstream LLC, et al., 2024 Tex. Bus. 1 (Tex. Bus. Ct. Oct. 30,

2024).

IV. Order

31 IT IS THEREFORE ORDERED that this matter is remanded to the

40th Judicial District Court, Ellis County, Texas.

ANDREA K. BOURESSA Judge of the Texas Business Court, First Division

SIGNED ON: January 31, 2025.