Opinion issued August 8, 2023

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-23-00022-CV

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IN RE PINNERGY LTD., LADONTA SWEATT, AND UNION PACIFIC 

RAILROAD COMPANY, Relators

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

On January 13, 2023, relators, Pinnergy Ltd. and LaDonta Sweatt, filed a 

petition for a writ of mandamus challenging the trial court’s December 27, 2022 

order denying the motion to dismiss the underlying cause pursuant to the doctrine of 

forum non conveniens filed by Pinnergy, Sweatt, and relator, Union Pacific Railroad 
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Company. 1 Pinnergy and Sweatt’s mandamus petition asserted that the trial court’s 

denial of the motion to dismiss amounted to an abuse of discretion and they had no 

adequate remedy on appeal. Pinnergy and Sweatt therefore requested that this Court 

“grant th[e] writ and require the trial court to dismiss the case.”

In connection with their mandamus petition, Pinnergy and Sweatt filed an 

“Emergency Motion to Stay Proceedings of Trial Court.” In their emergency 

motion, Pinnergy and Sweatt requested a stay of the underlying trial court 

proceedings pending resolution of their petition for writ of mandamus. On January 

17, 2023, the Court granted the motion and stayed the underlying trial court

proceedings. 

On January 30, 2023, Union Pacific filed its “Joinder in Petition for Writ of 

Mandamus,” in which Union Pacific “join[ed] the [p]etition for [w]rit of 

[m]andamus filed by” Pinnergy and Sweatt, challenging the trial court’s December 

27, 2022 order.2 In its joinder, Union Pacific also asserted that the trial court abused 

its discretion in denying the motion to dismiss for forum non conveniens, and that it 

1 The underlying case is Thomas Richards and Hunter Sinyard v. Pinnergy Ltd., 

LaDonta Sweatt, and Union Pacific Railroad Co., Cause No. 2022-45392, in the 

80th District Court of Harris County, Texas, the Honorable Jeralynn Manor 

presiding.

2 Pursuant to its “Joinder in Petition for Writ of Mandamus,” in which Union Pacific 

requested issuance of a writ of mandamus related to the trial court’s December 27, 

2022 order, Union Pacific is also a relator in this original proceeding. See TEX. R.

APP. P. 52.2 (“The party seeking the relief is the relator.”).
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lacked an adequate remedy on appeal. Union Pacific therefore requested that this 

Court “issue a writ of mandamus directing the trial court to (1) grant the motion to 

dismiss for forum non conveniens[] and (2) dismiss the case as to all parties.”

Background

The underlying litigation was filed in Harris County by real party in interest, 

Thomas Richards, against Pinnergy, Sweatt, and Union Pacific. Richards alleged 

causes of action for negligence against relators in connection with a collision 

between an 18-wheeler tanker-trailer and a Union Pacific locomotive. According to 

his suit, on or around November 22, 2021, Richards was working in the course and 

scope of his employment as an engineer for Union Pacific when the locomotive 

Richards was working on collided with a tanker-trailer in Red River Parish, 

Louisiana.

The suit further alleged that the tanker-trailer was owned by Pinnergy and 

operated by Sweatt. Richards asserted that Sweatt negligently stopped the 

tanker-trailer on a railroad crossing, into the path of the locomotive, causing a 

collision and injuring Richards. 

On September 20, 2022, real party in interest, Hunter Sinyard, filed a petition 

in intervention to Richards’ original petition. In his petition in intervention, Sinyard 

alleged that he was working as a conductor on the Union Pacific locomotive at the 

time of the collision with the tanker-trailer, and that he also sustained injuries in the 
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collision. Sinyard alleged causes of action for negligence against Pinnergy, Sweatt, 

and Union Pacific.

As noted above, the collision at issue in the underlying litigation, which was 

filed in Harris County, occurred in Red River Parish, Louisiana. According to 

Richards’ original petition, he is a resident of Louisiana. Richards further alleged 

that Union Pacific was authorized to do business, and had an agent for service of 

process, in Texas, and that Pinnergy “was formed in Texas and [was] authorized to 

do business in Texas.” Finally, Richards alleged that Sweatt was “an individual and 

resident of Marshall, Texas.” In his petition in intervention, Sinyard stated that he 

was a resident of Arkansas.

On September 12, 2022, Pinnergy and Sweatt filed a motion to dismiss the 

underlying litigation for forum non conveniens. On October 12, 2022, Union Pacific 

joined in Pinnergy and Sweatt’s motion to dismiss for forum non conveniens. Also 

on October 12, 2022, Pinnergy, Sweatt, and Union Pacific filed a Notice of 

Submission, setting their motions to dismiss for forum non conveniens on the trial 

court’s October 24, 2022 submission docket.

Richards and Sinyard failed to file a response to the motions prior to the 

submission date and the trial court entered an order granting the motions to dismiss 

on October 25, 2022. However, on October 31, 2022, Richards filed a motion to 

reconsider, asserting that he was not provided the statutorily required twenty-one 
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days’ notice prior to submission of the motions to dismiss. 

See TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(d) (“The court may rule on a 

motion filed under this section only after a hearing with notice to all parties not less 

than 21 days before the date specified for the hearing. . . . The moving party shall 

have the responsibility to request and obtain a hearing on such motion . . . .”). On 

November 26, 2022, the trial court granted Richards’ motion to reconsider and 

withdrew its order granting the motion to dismiss. The trial court further stated that 

Richards could file a response to the motions to dismiss for forum non conveniens 

“in advance of the hearing or submission to be scheduled with at least [twenty-one] 

days[’] notice.”

The mandamus record reflects that on December 21, 2022, Richards filed a 

response to the motions to dismiss for forum non conveniens. On December 23, 

2022, Pinnergy and Sweatt filed a “Motion for Leave to File Sur Reply.” According 

to Pinnergy and Sweatt’s mandamus petition, the trial court did not consider their 

motion for leave. Pinnergy and Sweatt asserted that the “trial court then summarily 

denied [their] motion to dismiss, without providing the requested oral argument and 

without providing any written reasons.” The mandamus record provided to this 

Court does not contain evidence that Pinnergy, Sweatt, or Union Pacific requested 

an oral argument or served any notice of an oral argument subsequent to the trial

court withdrawing its October 25, 2022 order. Similarly, the mandamus record does 
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not contain evidence that they requested a submission date or served any notice of

submission for their motions to dismiss for forum non conveniens after the 

withdrawal of the October 25, 2022 order. Despite that, the record reflects that, on 

December 27, 2022, the trial court entered an order denying the motions to dismiss.

Burden to Obtain Mandamus Relief

Mandamus is an extraordinary remedy that is only available in limited 

circumstances. See Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). 

Mandamus relief is only appropriate where the relators establish that the trial court 

has abused its discretion or violated a legal duty, and they have no adequate remedy 

by appeal. See id. Further, “it is important to note that as the parties seeking relief, 

[the] [r]elators bear the burden to provide the Court with a sufficient record to 

establish their right to relief.” See In re Barnes, 655 S.W.3d 658, 668 (Tex. App.—

Dallas 2022, orig. proceeding); see also TEX. R. APP. P. 52.7.

Our review of the mandamus petitions and the mandamus record provided to 

this Court reflect that Pinnergy, Sweatt, and Union Pacific have failed to establish 

that they are entitled to the mandamus relief requested in their petitions. See In re 

Vaishangi, Inc., 442 S.W.3d 430, 431 (Tex. App.—Houston [14th Dist.] 2012, orig. 

proceeding) (“It is relators’ responsibility to provide the court with a record 

supporting their petition for writ of mandamus. Because relators have not provided

this court with a sufficient record showing they are entitled to relief, they have not 
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established entitlement to the extraordinary relief of a writ of mandamus.”). 

Accordingly, we lift the stay imposed by our January 17, 2023 order and deny the

petitions for writ of mandamus. See TEX. R. APP. P. 52.8(a). Any pending motion

is dismissed as moot.

PER CURIAM

Panel consists of Chief Justice Adams and Justices Guerra and Farris.