Full text
VicNRG LLC v. FCStone, LLC, FCStone Trading, LLC and FCStone Group, Inc.
ACCEPTED 14-15-00194-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 4/16/2015 10:04:18 AM CHRISTOPHER PRINE CLERK
NO. 14-15-00194-CV
FILED IN 14th COURT OF APPEALS IN THE COURT OF APPEALS FOR THE FOURTEENTHHOUSTON, JUDICIAL TEXAS DISTRICT OF TEXAS 4/16/2015 10:04:18 AM CHRISTOPHER A. PRINE Clerk
VICNRG LLC, Appellant
v.
FCSTONE, LLC, FCSTONE TRADING, LLC, & FCSTONE GROUP, INC., Appellees
Appeal from the 334th District Court at Harris County, Texas Cause No. 2013-05124B The Hon. Grant Dorfman, presiding
APPELLANT’S RESPONSE TO APPELLEES’ MOTION TO DISMISS FOR LACK OF JURISDICTION
Peter F. Bagley Texas Bar No. 00783581 BLUMBERG & BAGLEY, L.L.P. 2304 W. I-20, Ste. 190 Arlington, Texas 76017 817.277.1500 817.277.1170 (facsimile) peter@blumbergbagley.com ATTORNEYS FOR APPELLANT
TO THE HONORABLE COURT OF APPEALS
Appellant VicNRG LLC (“VicNRG”) files this, its Response to Appellees’ Motion to Dismiss for Lack of Jurisdiction, and in support of the same would respectfully show the Court the following:
Appellees FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. (collectively, “FCStone”) obtained an interlocutory summary judgment dated August 1, 2014 in Cause No. 2013-05124 (the “parent case”) that disposed of VicNRG’s claims against FCStone. App. 5. 1 Later the trial court granted FCStone’s motion for severance, signing an order of severance on October 29, 2014. App. 7-10, 18-22. FCStone contends that the order of severance operates as a final judgment in the severed case, which is designated Cause No. 2013-05124B (the “B case”) and that VicRNG’s appeal here, filed on February 20, 2015, 2 is untimely. App. 24-25.
However, FCStone cannot hermetically seal the order of severance from the record of this case while claiming the order is final. The order of severance does not contain language that makes it unmistakably clear that
1 Because the district clerk has not transmitted the clerk’s record to the Court of Appeals, VicNRG has attached the relevant documents in the attached Appendix, which are authenticated by the Declaration of Peter Bagley. App. 3. 2 Although VicNRG styled its notice of appeal as a “Conditional Notice of Appeal,” the notice triggered the appellate court’s jurisdiction regardless of how it is described. See TEX. R. APP. P. 25.1; In re Washington, 7 S.W.3d 181, 182 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding).
the order is a final one. It contains no such words as final or appealable, to say nothing of a Mother Hubbard clause. App. 18-22. But when one looks at the record as a whole, the intent of the trial court, and actions of the clerk (as required by applicable law), it becomes abundantly clear that the order signed October 29, 2014 is interlocutory. Meanwhile, the trial court signed a final judgment on March 10, 2015 that finally disposed of the B case. App. 27.
Applicable Law
Without a conventional trial on the merits, a judgment is not presumed to be final. Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986) (orig. proceeding). A final judgment is one that disposes of all parties and all issues in a lawsuit so that no future action will be necessary to settle the controversy. Id.; Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2000). A final judgment must also be certain so that it can be enforced by writ of execution. H.E. Butt Grocery Co. v. Bay, Inc., 808 S.W.2d 678, 680 (Tex. App.—Corpus Christi 1991, writ denied). A judgment must be such that ministerial officers can carry the judgment into execution without ascertaining additional facts. Id. The form of the judgment is not controlling as long as there is certainty in the result achieved. Int’l Sec. Life Ins. Co. v. Spray, 468 S.W.2d 347, 350 (Tex. 1971).
FCStone is correct that as a general rule, the severance of an interlocutory judgment into a separate cause may make it final. But this is not true in every instance. For example, an order of severance is not final when the order expressly contemplates other action. See, e.g., Diversified Fin. Sys., Inc. v. Hill, Heard, O’Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001); Doe v. Pilgrim Rest Baptist Church, 218 S.W.3d 81, 82 (Tex. 2007) (holding that the severance order contemplated assignment of the case on the docket and compliance with the district clerk’s procedures [the payment of a filing fee]); In the Interest of S.A.A., No. 2-08-080-CV, 2008 Tex. App. LEXIS 3428, at *2 (Tex. App.—Fort Worth May 8, 2008, no pet.) (mem. op.) (holding that the order of severance called for additional action by mentioning that the separate action would proceed to a final judgment).
In Lehmann, the Texas Supreme Court made clear that an order is not final unless it actually disposes of all parties and claims or it contains language that expressly disposes of all parties and claims. Lehmann, 39 S.W.3d at 200. In a consolidated case, the Supreme Court held that certain orders granting summary judgment containing Mother Hubbard clauses (specifically, “all relief not expressly granted is herein denied”) were insufficiently clear to give them sufficient indicia of finality for purposes of *5 appeal. Id. at 200. The Supreme Court noted that litigants should be able to recognize when a judgment purports to be final on its face and treat it as final for purposes of an appeal. Id. at 202. If the intent to finally dispose of a claim is not unequivocally expressed in the words of the order itself, then finality must be determined from the intention of the court and the record as a whole, aided on occasion by the conduct of the parties. Id. at 203. Thus, finality sometimes turns on the facts of a case.
For instance, a closer reading of an order may indicate that it is not final. See, e.g., Martinez v. Humble Sand & Gravel, 875 S.W.2d 311, 313 (Tex. 1994) (holding that a severance order was not final because it contained handwritten notes that suggested that additional defendants could themselves file motions for summary judgment and be added into the severed case). Sometimes a closer look at the record, and particularly the court’s intent, may reflect that a particular case is not final. See, e.g., In the Interest of J.D., 304 S.W.3d 522, 525 (Tex. App.—Waco 2009, no pet.) (holding that because the court’s intent controls, the court’s expression that an intervention was still active meant the judgment was not final and appealable); Flores v. Sandoval, No. 01-02-01197-CV, 2004 Tex. App. LEXIS 4181, at *6 (Tex. App.—Houston [1st Dist.] May 6, 2004, no pet.) (mem. op.) (noting that the order at issue—like the one in this case—did not *6 expressly indicate that it disposed of all parties and all claims and holding that because it failed to take into account the presence of another party, it was not final); Phillips v. Baker, No. 14-02-01099-CV, 2002 Tex. App. LEXIS 8568, at *3 (Tex. App.—Houston [14th Dist.] Dec. 5, 2002, no pet.) (not designated for publication) (holding that a judgment was not final because it did not dispose of all parties and because the clerk’s letter assigning the appeal indicated that there was no final judgment); Youngblood & Assocs., P.L.L.C. v. Duhon, 57 S.W.3d 63, 65 (Tex. App.— Houston [14th Dist.] 2001, no pet.) (holding that the summary judgment was not final because it did not dispose of a claim for relief seeking attorneys’ fees).
Application of the Law to the Facts
By signing a final judgment, the trial court did exactly what FCStone asked it to do.
1. FCStone moved the trial court to sign a final judgment.
On October 6, 2014 FCStone filed its unopposed motion to sever VicNRG’s claims against it in the present case. App. 7-16. FCStone’s motion expressly indicates that its purpose was to permit the entry of a final and appealable judgment. Id. at 7. FCStone specifically asked the trial court to sever VicNRG’s claims and further requested that it “sign a Final Judgment *7 in the severed case making the Interlocutory Order granting summary judgment entered herein final.” Id. at 8. In addition FCStone attached a proposed “final judgment.” Id. at 16. The language of the proposed judgment states that the judgment is “final and disposes of all claims and parties.” Id.
Alongside the final judgment, FCStone submitted a form of a proposed order of severance that listed certified copies of documents to be included in the severed case. Id. at 11-15. When VicNRG noticed that the list of documents left off some additional documents that VicNRG deemed necessary to be included in an appellate record for an appeal of the severed case, VicNRG asked that additional records be included in the file for the severed case. App. 66-69. On October 29, 2014 the trial court signed an order of severance creating the B case that included the requested docketed items. App. 18-22. 2. The order of severance standing alone is not final.
Significantly, the order of severance contains no language that suggests that the order is final and appealable. Id. Thus, there is no certainty in the result it achieved and one must inevitably look to the trial court’s intent and the record as a whole to determine if it is final. Lehmann, 39 S.W.3d at 194. The court clerk could not have issued a writ of execution *8 for FCStone as the prevailing summary judgment movant to recover its court costs, had it chosen to do so, without looking at the record as a whole to determine if the order of severance was final. See H.E. Butt Grocery Co., 808 S.W.2d at 680. To determine finality, one must examine the parties’ pleadings, FCStone’s motion for summary judgment, and the order granting the summary judgment to realize that the summary judgment disposed of all of VicNRG’s claims against FCStone and that FCStone had no counterclaims against VicNRG. However, anyone examining this record would also see that FCStone further moved the trial court to engage in one additional future action to conclude the newly severed case—the signing of a final judgment that is distinct from the order of severance. App. 7-8. 3. FCStone limited the effect of the order of severance.
By asking the trial court to carry out the additional act of signing a final judgment, FCStone limited the effect of the order of severance and made finality in the severed case contingent upon the trial court’s signing of a final judgment. After the trial court signed the order of severance, FCStone did not modify its motion to sever by withdrawing its request for a final judgment or by notifying the trial court that it required no additional action from the court. Thus, whatever effect the order of severance might *9 have had, its effect was conditional and dependent upon the trial court signing the final judgment at issue.
Evidently, the trial court agreed. On February 4, 2015 VicNRG filed a motion for entry of a final judgment.3 App. 29-76. A hearing was held on VicNRG’s motion on February 20, 2015, and the trial court signed a final judgment on March 10, 2015, hence doing the very thing that FCStone had asked the trial court to do in the first place. App. 27.
Therefore, FCStone is not in a position to challenge the trial court for doing what it previously requested. Moreover, the doctrine of judicial estoppel prevents FCStone from complaining of the court’s action below. Judicial estoppel precludes a party who successfully maintained a position in one proceeding from adopting an inconsistent position in another position to obtain an unfair advantage. Ferguson v. Building Materials
3 Besides arguing that the order of severance did not operate as a final judgment, VicNRG also argued that the trial court should extend the appellate deadlines under Texas Rule of Civil Procedure 306a(5) because VicNRG did not get notice that FCStone deemed the order of severance to operate as a final order (as distinguished from the proposed final judgment that it submitted) until VicNRG’s counsel spoke with FCStone’s counsel about this matter on January 21, 2015, a date falling within ninety days of the date of the order of severance. App. 35-36. VicNRG argued that upon learning of FCStone’s view of the order of severance as final, its postjudgment deadlines should be extended under rule 306a(4) to enable VicNRG to file a notice of appeal, which VicNRG did on February 20, 2015, a date occurring within thirty days of this communication. Id. See also John v. Marshall Health Serv., 58 S.W.3d 738, 741 (Tex. 2001) (holding that the clock on counting down the court’s plenary jurisdiction does not start until the notice date); Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993) (the post-judgment deadlines start from the date of notice as long as notice of judgment is received within 20 to 90 days of judgment). However, because the trial court did not sign an order granting this motion, it was apparently denied by implication.
Corp., 295 S.W.3d 642, 643 (Tex. 2009). The purpose of the doctrine is to prevent intentional self-contradiction “to prevent the parties from playing fast and loose with the judicial system for their own benefit.” Id. See also Winspear v. Coca-Cola Refreshments, USA, Inc., No. 05-13-00712-CV, 2014 Tex. App. LEXIS 3881, at *13 (Tex. App.—Dallas Apr. 9, 2014, pet. denied) (mem. op.); N.H. Ins. Co. v. Magellan Reinsurance Co., No. 02-12-00196-CV, 2013 Tex. App. LEXIS 5437, at *13-14 (Tex. App.—Fort Worth May 2, 2013, no pet.) (mem. op.).
In the parent case, FCStone took the position that the trial court should sign an order of severance and enter a separate final judgment to make the severed case appealable. In the severed case, however, FCStone inconsistently argued that the order of severance operated as a final order and that the trial court did not have to sign the final judgment, perhaps indicating that FCStone intended its request to operate as a trap designed to cause VicNRG to miss its appellate deadlines. But FCStone should not be allowed to play “fast and loose with the judicial system” for its own benefit, and it should not be allowed to object to the very thing it asked the trial court to do below.
The trial court and the court clerk treated the order of severance as interlocutory.
Furthermore, the background of this case shows that the trial court and the court clerk viewed the order of severance not as final, but as interlocutory as reflected below:
1. The clerk’s transmittal form creating the B case listed the case as “pending,” as distinguished from “final” or some other designation. App. 75.
2. The Harris County District Clerk’s website continued to show the B case as an active case. App. 76.
3. A district clerk employee informed VicNRG’s counsel on January 5, 2015 that the case remained an open case and that the trial court would need to sign the final judgment to close the case. App. 32 (¶8).
4. When VicNRG filed its notice of appeal, the Harris County District Clerk treated the appeal as interlocutory, triggering the deadlines for accelerated appeals of interlocutory orders. App. 78-79, 81-84 (¶2).
5. The trial court eventually signed a final judgment on March 10, 2015. App. 27.
6. The trial court treated another case that was previously severed from the same parent case as this one as interlocutory. VicNRG obtained an interlocutory default judgment against other defendants in the parent case on June 24, 2013. App. 40-43. These defendants were severed out of the parent case on November 7, 2013 and transferred to the companion case designated cause number 201305124A (the “A case”). App. 44-47. Like the order of severance at issue here, the order of severance for the A case contains no language indicating that it is final and appealable. Id. The clerk’s transmittal form creating the file for the A case listed it as a pending case, and the Harris County District Clerk’s website continues to show the A case as an active case. App. 49, 76. Moreover, the trial court sent VicNRG a notice dated June 26, 2014 requesting that it seek entry of a judgment in the A case or file a motion to retain. App. 50. In response VicNRG filed a motion to retain on July 18, 2014, and the trial court signed an order of retention on September 18, 2014, a date more than ten months after the A case was created by order of severance and approximately one month before the trial court signed an order of severance in the B case. App. 51-54, 55.
As previously noted, the trial court’s view that a particular order is interlocutory is sometimes apparent when it takes certain action after signing the order. See, e.g., Shamoun v. Cisco Sys. Capital Corp., No. 2-07-449-CV, 2008 Tex. App. LEXIS 5191, at *3 (Tex. App.—Fort Worth Jul. 10, 2008, no pet.) (mem. op.) (noting that the trial court treated the order of severance as interlocutory by setting a joint status conference); Yazdchi v. *13 Bennett Law Firm, P.C., No. 14-01-00928-CV, 2002 Tex. App. LEXIS 3973, at *1 (Tex. App.—Houston [14th Dist.] 2002, pet. dism’d) (mem. op.) (pointing out that the trial court set a matter for trial after signing a judgment confirming an arbitration award); Sheerin v. Exxon Corp., 923 S.W.2d 52, 55 (Tex. App.—Houston [1st Dist.] 1995, no writ) (noting that the trial court signed certain orders after signing a summary judgment).
In the case below the trial court’s intent to limit the effect of the order of severance is evidenced by the fact it signed the final judgment. Moreover, the court clerk here, like the court clerk in Phillips, suggested to VicNRG that no final judgment had been entered in this cause before the trial court signed the March 10, 2015 judgment. Phillips, 2002 Tex. App. LEXIS 8568, at *4.
Before all of this, VicNRG’s counsel had periodically contacted the trial court to inquire about the status of the case. R.R. 8 (ll.3-7), 19 (ll.1-4). VicNRG had meanwhile expected the trial court to sign a final judgment given that the trial court and the court clerk treated the order of severance as interlocutory and because FCStone contemplated that the B case would proceed to a final judgment to make it final and appealable. VicNRG reasonably relied on these things to support its belief that its appellate *14 deadlines would start upon the signing of a final judgment and not entry of the order of severance.
Texas law favors preservation of the right of appeal over overly technical reading of laws.
The Texas Supreme Court instructs that courts should avoid a construction of an order that denies a party the right of appeal. Lehmann, 39 S.W.3d at 203 (holding that the right of appeal should not be lost because of an overly technical application of the law); Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992) (noting that decisions of the appellate courts should turn on substance rather than procedural technicality). See also McRoberts v. Ryals, 863 S.W.2d 450 (Tex. 1993) (holding that party still had the right of appeal given problems stemming from miscommunications from the trial clerk and appellate clerk about the case); Butler v. Whitten, No. 02-13-00306-CV, 2014 Tex. App. LEXIS 6, at *6 (Tex. App.—Fort Worth 2014, no pet.) (mem. op.) (holding that a party’s erroneous appeal of the parent case and not the severed case was a bona fide attempt to invoke appellate jurisdiction and thus preserved party’s right to appeal). The Texas Supreme Court has further indicated that procedural rules should be liberally construed so that the right to appeal is not lost unnecessarily. Arkoma Basin Explor. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 388 (Tex. 2008). Appellate procedure should not be *15 tricky; it should be simple, certain, make sense, and facilitate consideration of the parties’ arguments on the merits. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 314 (Tex. 2000) (Hecht, J. concurring). Hence, FCStone’s strained interpretation of the law should not act as a bar to VicNRG’s appeal where VicNRG reasonably acted in reliance on FCStone’s request for entry of a final judgment and the intent of the trial court and the actions of the court clerk indicated that the order of severance was interlocutory.
Conclusion
The one judgment rule of Texas Rule of Civil Procedure 301 is not implicated in this case because the order of severance did not operate as a final judgment in the first place for the reasons previously discussed. 4 It did not dispose of all parties and issues because FCStone did not intend it to do so. Furthermore, the order of severance contains no language indicating that it was final. Thus, on the face of the order, its finality is indeterminate. In such circumstances, the Lehmann decision instructs the courts to look to the record as a whole and the intent of the trial court to determine finality. FCStone intended for the severance to be contingent on
one additional act—the entry of a final judgment that it asked the trial court 4 Despite the language of rule 301, Texas law recognizes that a final judgment may consist of several orders that cumulatively dispose of all parties and issues. Noorian v. McCandless, 37 S.W.3d 170, 173 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).
to sign. Accordingly, FCStone cannot negate the fact that it requested this form of relief, which in turn had a limiting effect on the order of severance, and should not now be heard to complain of the trial court’s grant of its own request. The order of severance eventually merged into the final and appealable judgment dated March 10, 2015 after the trial court complied with FCStone’s request. VicNRG’s notice of appeal is therefore timely. App. 24-25, 86-87. If FCStone were rewarded for its inconsistent positions in this case, then the its maneuver of simultaneously filing an order of severance and a final judgment can be used to set a trap for future litigants, which would not bode well for the administration of justice in Texas. For these reasons, VicNRG asks that FCStone’s motion to dismiss be denied.
WHEREFORE, VicNRG requests that this Court deny FCStone’s motion to dismiss for lack of jurisdiction and grant it such other and further relief to which it may show itself to be justly entitled.
Respectfully submitted,
BLUMBERG & BAGLEY, L.L.P.
by: /s/Peter F. Bagley Peter F. Bagley Texas Bar No. 00783581 2304 W. Interstate 20, Suite 190 Arlington, Texas 76017
(817) 277-1500 Facsimile: (817) 277-1170 peter@blumbergbagley.com ATTORNEYS FOR APPELLANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Appellant’s Response to Appellant’s Motion to Dismiss for Lack of Jurisdiction was served upon the following on this, the 16th day of April, 2015 in accordance with the Texas Rules of Appellate Procedure.
VIA ELECTRONIC SERVICE Mr. James T. Drakeley Mr. R. Scott Seifert Hiersche, Hayward, Drakeley & Urbach, P.C. 15303 Dallas Parkway, Suite 700 Addison, Texas 75001 Co-Counsel for Plaintiff VicNRG LLC;
VIA ELECTRONIC SERVICE Mr. Mark K. Glasser Ms. Tracy LeRoy Sidley LLP 1000 Lousiana, Ste. 6000 Houston, Texas 77002 Counsel for Defendants FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc.
s/ Peter F. Bagley Peter F. Bagley
No. 14-15-00194-CV
VICNRGLLC, § IN THE COUIRT OF APPEALS Appellant § § v. § § 14TH JUDICIAL DISTRICT FCSTONE, LLC, FCSTONE TRADING, § LLC, and FCSTONE GROUP, INC., § Appellees § § § HOUSTON, TEXAS
Appendix of Portions of Clerk's Record and Other Documents Appendix Document No. Document Page No.
1 3 Declaration of Peter Bagley
2 5 Order for Interlocutory Summary Judgment FCStone's Motion to Sever with Proposed 3 7-16 Order and Proposed Final Judgment 4 18-22 Order of Severance
5 24-25 VicNRG's Conditional Notice of Appeal
6 27 Final Judgment in Severed Case
7 29-76 VicNRG's Motion for Entry of Final Judgment
8 78-79 VicNRG's Letter to Clerk of Court of Appeals
9 81-82 VicNRG's Motion to Enlarge Deadlines 10 86-87 VicNRG's Amended Notice of Appeal
Appendix 001
DOCUMENT 1
Appendix 002
No. 14-15-00194-CV
VICNRGLLC, § IN THE COUIRT OF APPEALS Appellant § § v. § § 14TH JUDICIAL DISTRICT FCSTONE, LLC, FCSTONE TRADING, § LLC, and FCSTONE GROUP, INC., § Appellees § § § HOUSTON, TEXAS
DECLARATION OF PETER BAGLEY
Pursuant to Texas Civil Practice & Remedies Code 132.001, Peter F. Bagley makes the following declaration.
1. My name is Peter f. Bagley. I am over 18 years of age, of sound mind, capable of making this declaration, and personally acquainted with the facts stated in it.
2. I am one of the attorneys with Blumberg & Bagley, LLP (hereinafter, "Blumberg & Bagley"), which, along with Hiersche, Hayward, Drakeley & Urbach, P.C., represents Appellant VicNRG, LLC ("VicNRG") in the above-styled and numbered cause.
3. I have been involved in all stages of this litigation in the trial court below, and I am familiar with the history and background of this case. Attached to this declaration are various pleadings, orders, and other documents that make up part of the court's file for the present case below and in the Court of Appeals. These documents are true and correct copies of such pleadings, orders, and other miscellaneous documents.
4. I declare under penalty of perjury that the foregoing is true and correct.
EXECUTED in Tarrant County, State of Texas, on the 9th day of April, 2015.
Appendix 003
DOCUMENT 2
Appendix 004
217/2014 3:35:34 PM Chris Daniel • District Clerk Harris County · Envelope No: 415458 By: JIMENEZ, DANIELLE N
CAUSE NO. ~! !JOI !64t
VICNRGLLC, § IN THE DISTRICT COURT OF § PLAINTIFF § § VS § § § HARRIS COUNTY, TEXAS FUEL STREAMERS INC., § GREEN DIESEL, LLC, § FCSTONE, LLC, § FCSTONE TRADING, LLC AND § FCSTONE GROUP, INC, § § DEFENDANTS. § § 334th DISTRICT COURT
PROPOSED ORDER
This matter came before the Court for hearing on March 14, 2014, on Defendants \\-' ' \'l. ... \ FCStone, LLC, FCStone Trading, LLC, and FCStone Group, lnc.'s (together"FCStone")
Traditional and No-Evidence Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
Signed this ffiy of Jvf v.ff ,2014. - ._ 0
Appendix 005
DOCUMENT 3
Appendix 006
1016/2014 11 :00:03 AM Chris Daniel • District Clerk Harris County Envelope No, 2727109 By: KATINA WILLIAMS Filed: 1016/201411:00:03AM
Cause No. C-201305124
VICNRG LLC, § IN THE DISTRICT COURT OF § PLAINTIFF. § § vs. § § § HARRIS COUNTY, TEXAS FUEL STREAMERS INC., § GREEN DIESEL, LLC, § FCSTONE, LLC, § FCSTONE TRADING, LLC AND § FCSTONE GROUP, INC. § § DEFENDANTS. § § 334th DISTRICT COURT
FCSTONE'S UNOPPOSED MOTION TO SEVER
Pursuant to Rule 41 of the Texas Rules of Civil Procedure, Defendants FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. (together "FCStone") respectfully move to sever all claims and causes of action alleged against FCStone and for entry of final judgment as to those claims and causes of action. VicNRG does not oppose this Motion.
Plaintiff VicNRG LLC filed the instant action against numerous defendants. On August 1, 2014, the Court granted summary judgment on all causes of action alleged against FCStone. This ruling, in VicNRG's words, "had the effe.ct ofremoving FCStone from this case." Plt.'s 9/10/14 Mot. Enlarge at 1.
The Court should sever VicNRG's action against FCStone from VicNRG's claims against the remaining defendants to permit entry of a final and appealable judgment as to FCStone. See Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995) (severance proper after partial summary judgment to obtain final and appealable judgment, and should be sought when a judgment disposes of one party); Guidry v. National Freight, Inc., 944 S.W.2d 807, 812
Appendix 007 (Tex.App. - Austin 1997, no writ) (summary judgment in favor of one defendant severed from claims pending against other defendants). VicNRG does not oppose this Motion.
For these reasons, FCStone respectfully requests that the Court order the cause between Plaintiff and Defendants FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. (together "FCStone") be severed and made the subject of a separate suit; that the Court sign a Final Judgment in the severed case making the Interlocutory Order granting summary judgment previously entered herein final; and that FCStone be granted any and all other relief to which it may show itself entitled.
Respectfully submitted,
By:/s/ Mark K. Glasser
Mark K. Glasser State Bar No. 08014500 Tracy N. LeRoy State Bar No. 24062847
SIDLEY AUSTIN, LLP 1000 Louisiana, Suite 6000 Wells Fargo Plaza Houston, Texas 77002 713-495-4500 (telephone) 713-495-7799 (facsimile) m2lasser@sidley.com tleroy!lv,sidlev .com
David Hoffman (admitted pro hac vice) Illinois State Bar No. 6229441 Kees Vandenberg (admitted pro hac vice) Illinois State Bar No. 6301079
SIDLEY AUSTIN, LLP One South Dearborn Chicago, Illinois 60606 (3 I 2) 853- 7000 (telephone) (3 I 3) 853~ 7036 (facsimile) david.hoffman@J,sidley.com c. vanden bere:@sid ley .com
Appendix 008
COUNSEL FOR DEFENDANTS FCSTONE, LLC, FCSTONE TRADING, LLC, and FCSTONE GROUP, INC.
CERTIFICATE OF CONFERENCE
I certify that the undersigned counsel contacted Peter Bagley, counsel for VicNRG by telephone regarding the substance of this Motion on September 15, 2014, and Mr. Bagley indicated by e-mail on September 17, 2014, that VicNRG does not oppose this Motion.
By:/s/ Tracy N. LeRoy
Appendix 009
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing documents was forwarded to al I counsel of record on the 6111 day of October, 2014, by electronic mail and U.S. mail. .
Daniel E. Blumberg Peter F. Bagley Blumberg & Bagley, L.L.P. 2304 W. Interstate 20, Suite 190 Arlington, Texas 76017 Tel: (817)277-1500 Fax: (817)277-1170
W. Joel Bryant P.O. Box 53587 Houston, Texas 77052 Tel: (713) 227-7377 Fax: (713) 227-7977
David A. Fettner Fettner Thompson 6700 Sands Point Dr. Houston, Texas 77074 Tel: (713) 626-7277 Fax: (888) 876-2292
James T. Drakeley R. Scott Seifert Hiersche, Hayward, Drakeley & Urbach, P.C. 15303 Dallas Parkway, Suite 700 Addison, Texas 75001
Ashish Mahendru Mahendru P.C. 111 Bagby, Suite 2200 Houston, Texas 77002
By:/s/ Mark K. Glasser
Appendix 010
Cause No. C-201305124
VICNRGLLC, § IN THE DISTRICT COURT OF § PLAINTIFF. § § vs. § § § HARRIS COUNTY, TEXAS FUEL STREAMERS INC., § GREEN DIESEL, LLC, § FCSTONE, LLC, · § FCSTONE TRADING, LLC AND § FCSTONE GROUP, INC. § § DEFENDANTS. § § 334t11 DISTRICT COURT
ORDER GRANTING FCSTONE'S UNOPPOSED MOTION TO SEVER
This matter comes before the Court on the Unopposed Motion to Sever filed by Defendants FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. (together "FCStone''). The Court having considered the pleadings and arguments of counsel, is of the opinion that the Motion should be granted.
IT IS THEREFORE ORDERED that the claims VicNRG LLC asserted against Defendants FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. are severed from this action and made the subject of a separate action.
IT IS FURTHER ORDERED that VicNRG LLC will be the plaintiff in the severed case and FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. will be the defendants in the new action, which is to be styled VicNRG LLC v. FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. and to have docket number C-201305124-_.
IT IS FURTHER ORDERED that the clerk make certified copies of the following documents in the instant case for the severed case:
Appendix 011
-Document File Date·.· 07/03/2012 Original Petition
10/12/2012 First Amended Petition
01/28/2013 Motion to Transfer Venue and Subject Thereto, General Denial of FCStone, LLC, and FCStone Trading, LLC
01/28/2013 Plaintiffs Response to the Motions to Transfer Venue of Defendants
01/28/2013 Plaintit'rs Motion to Reconsider Order Transferring Venue
01/28/2013 Defendants FCStone, LLC, and FCStone Trading, LLC's Response to Plaintiffs Motion to Reconsider Order Transferring Venue
04/18/2013 Notice of Change of Address (Counsel for FCStone)
06/25/2013 Rule 11 Agreement re VICNRG Documents Produced
09/30/2013 Rule 11 Agreement re Extension of Deadline FCStone to Respond to Discovery & FCStone's Production
10/17/2013 Rule 11 Agreement re Extension of Deadline VICNRG to Respond to Discovery
l I/14/2013 Second Amended Petition
11/22/2013 Plaintiffs Motion to Quash Depositions
11/25/2013 Motion for Admission Pro Hae Vice of David Hoffman
11/25/2013 Motion for Admission Pro Hae Vice of Cornelius Adrian Vandenberg
12/04/2013 . Citation: FCStone Group, Inc.
12/30/2013 General Denial of FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. to Plaintiffs Second Amended Petition
02/05/2014 Plaintiffs First Motion for Continuance and Plaintiffs Motion for Expedited Hearing of the Same
02/06/2014 Rule 11 Agreement re Compliance with Protective Order
02/07/2014 FCStone's Traditional and No-Evidence Motion for Summary Judgment, Notice of Oral Hearing & Appendix of Unpublished Legal Authorities
Appendix 012 02/07/2014 FCStone's Motion to File Under Seal
02/10/2014 FCStone's Motion to Quash Notices of Deposition of Nathaniel Burk, Christopher Jagoda, Matthew Upmeyer, and FCStone
02/11/2014 Plaintiff's Amended Motion for Continuance and Plaintiffs Motion for Expedited Hearing of the Same
02/17/2014 FCStone's Designation of Expert Witnesses
02/J 8/2014 FCStone's Opposition to VICNRG's Motion to Continue Hearing on 'Motion for Summary Judgment
02/18/2014 Rule 11 Agreement re Extension of trial date and discovery deadlines 02/21/2014 FCStone's Traditional and No-Evidence Motion for Summary Judgment 02/21/2014 Withdrawal of Motion to File Under Seal 02/27/2014 VICNRG's Unopposed Motion for Continuance of Trial Setting
03/07/2014 PlaintiffVICNRG LLC's Response to FCStone's Traditional and No- Evidence Motion for Summary Judgment
03/07/2014 Plaintiffs Objections to FCStone's Summary Judgment Evidence 03/07/2014 VICNRG's Motion to file Under Seal Pursuant to Protective Order
03/11/2014 FCStone Defendants' Objections to VICNRG's Summary Judgment Evidence
03111/2014 Response to VICNRG's Objections to FCStone's Summary Judgment Evidence
03/\ 1/2014 Reply in Support of FCStone's Traditional and No-Evidence Motion for Summary Judgment
03/13/2014 FCStone Defendants' Motion to Strike VICNRG's Unauthorized Surreply
03/13/2014 PlaintiffVICNRG Surreply to Defendant FCStone's Reply to VICNRG's Response to FCStone's Traditional and No-Evidence Motion for Summary Judgment
03/18/2014 FCStone Defendants' Motion for Leave to File Additional Summary
Appendix 013
:~:\~~?.~.·u.;:·.1n e.:.: .. ..•. . 1.•.•.:~te.(f~· .:,•·. . '·. . ~.;,t·~i!ll!e.1'.n., ::·:·::!.·~:·· .............................. .. · ·.···:.·.··:···.:·.-:-.·.::: ::-:······.
Judgment Evidence
03/25/2014 Rule 1 I Agreement Extending Discovery
03/25/2014 VICNRG's Withdrawal of Motion to File Under Seal Pursuant to Protective Order
03/28/2014 Response to VlCNRG's Surreply to FCStone's Traditional and No- Evidence Motion for Summary Judgment
03/28/2014 PlaintiffVICNRG LLC's Post~Hearing Brief
04/04/2014 Plaintiff VICNRG LLC's Response to FCStone's Traditional and No- Evidence Motion for Summary Judgment
06/03/2014 Notice of Oral Hearing on FCStone's Motion for Protection and to Quash Notices of Deposition
06/03/2014 FCStone's Motion for Protec.tion and to Quash Notices of Deposition
06/05/2014 Plaintiff VICNRG's Response to FCStone's Motion for Protection and VICNRG LLC's Motion to Compel Depositions
06117/2014 FCStone's Response to VICNRG's Motion to Compel and Reply in Support of Motion for Protection and to Quash
06/19/2014 PlaintiffVICNRG LLC's Sur-Reply to FCStone's Motion for Protection and Reply in Support ofVICNRG LLC's Motion to Compel Depositions_
07/30/2014 Rule l l Agreement re extension deadlines & setting of deadlines
8/0l/2014 Order granting Summary Judgment
IT IS FURTHER ORDERED that this order of severance does not affect the claims of the remaining parties to the instant case, does not cause a realignment of parties in the case, and that as a result of this order of severance, the style of the instant case shall hereafter be styled VicNRG LLC v. Green Diesel, LLC and Fuel Streamers, Inc.
Appendix 014 Signed this_ day of October, 2014.
Judge Grant Dorfman
Appendix 015
Cause No. C-201305124-_
VICNRGLLC, § IN THE DISTRICT COURT OF § PLAINTIFF. § § vs. § § § HARRIS COUNTY, TEXAS FCSTONE, LLC, § FCSTONE TRADING, LLC AND § FCSTONE GROUP, INC. § § DEFENDANTS. § § § § 334111 DISTRICT COURT
PROPOSED FINAL JUDGMENT AS TO FCSTONE
This matter came before the Court for hearing on March 14, 2014, on Defendants FCStone, LLC, FCStone Trading, LLC, and FCStone Group, lnc.'s (together "FCStone") Traditional and No-Evidence Motion for Summary Judgment. The Court, having considered Defendant's Motion, Plaintiff's Response, the various replies, surreplies, and objections to evidence, and argument by counsel GRANTED FCStone's Traditional and No-Evidence Motion for Summary Judgment by its August 1, 2014 Order. The Court granted FCStone's Unopposed Motion to Sever on October _ _, 2014. The Court FURTHER ORDERS that this action be DISMISSED WITH PREJUDICE. This Judgment is final and disposes of all claims and parties.
Signed this _ day of October, 20 I 4.
Judge Grant Dorfman
Appendix 016
DOCUMENT4
Appendix 017
10/24/201412:06:05 PM Chris Dante! • District Clerk Harris County ~ Envelope No: 2946244 By: FORD, DAVIA · ·
Cause No. C-201305124
VICNRGLLC,
PLAINTIFF. § § § IN THE DISTRICT COURT OF Ab § vs. § § § HARRIS COUNTY, TEXAS FUEL STREAMERS INC., § GREEN DIESEL, LLC, § FCSTONE, LLC, § FCSTONE TRADING, LLC AND § FCSTONE GROUP, INC. § § DEFENDANTS. § § 334tb DISTRICT COURT
ORDER GRANTING FCSTONE'S UNOPPOSED MOTION TO SEVER
This matter comes before the Court on the Unopposed Motion to Sever filed by ,, .. , \1._,.\ Defendants FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. (together
"FCStone"). The Court having considered the pleadings and arguments of counsel, is of the opinion that the Motion should be granted.
IT IS THEREFORE ORDERED that the claims VicNRG. LLC asserted against Defendants FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. are severed fro~ this action and made the subject of a separate action.
IT IS FURTHER ORDERED that VicNRG LLC will be the plaintiff in the severed case and FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. will be the defendants in the new action, which is to be styled VicNRG LLC v. FCStone, LLC, FCStnne Trading, LLC, and FCStooe Group, Inc. and to have docket number C~201305124&
IT IS FURTHER ORDERED that the clerk make certified copies of the following documents in the instant case for the severed case:
Appendix 018 '
Document. File Date Document Descripti~n .. . ' .. 07/03/2012 Original Petition
10/12/2012 First Amended Petition
01/28/2013 Citation-FCStone Trading, LLC (Image No. 54798579)
01/28/2013 ·Citation -FCStone, LLC (Image No. 54798611)
01/28/2013 Motion to Transfer Venue and Subject Thereto, General Denial of FCStone, LLC, and FCStone Trading, LLC
01/28/2013 Plaintiff's Response to the Motions to Transfer Venue of Defendants
01/28/2013 Plaintiff's Motion to Reconsider Order Transferring Venue . 01/28/2013 Defendants FCStone, LLC, and FCStone Trading, LLC's Response to Plaintiff's Motion to Reconsider Order Transferring Venue
01/28/2013 Order of Transfer dated November 6, 2012
04/18/2013 Notice of Change of Address (Counsel for FCStone)
06/25/2013 Rule 11 Agreement re VICNRG Documents Produced
09/30/2013 Rule 11 Agreement re Extension of Deadline FCStone to Respond to Discovery & FCStone's Production
10/17/2013 Rule 11 Agreement re Extension of Deadline VICNRG to Respond to ·Discovery
11/14/2013 Second Amended Petition
11/22/2013 Plaintiff's Motion to Quash Depositions
11/25/2013 Motion for Admission Pro Hae Vice of David Hoffman
11/25/2013 Motion for Admission Pro Hae Vice of Cornelius Adrian Vandenberg
12/04/2013 Citation: FCStone Group, Inc.
12/30/2013 General Denial of FCStone, LLC, FCStone Trading, LLC. and FCStone Group, Inc. to Plaintiff's Second Amended Petition
1/17/2014 Plaintiff's Designation of Expert Witnesses
Appendix 019
02/05/2014 Plaintiff's First Motion for Continuance and Plaintiff's Motion for Expedited Hearing of the Same
02/06/2014 Rule 11 Agreement re Compliance with Protective Order
02/07/2014 FCStone's Traditional and No-Evidence Motion for Summary Judgment, Notice of Oral Hearing & Appendix of Unpublished Legal Authorities
02/07/2014 FCStone 1s Motion to File Under Seal
02/10/2014 FCStone's Motion to Quash Notices of Deposition of Nathaniel Burk, Christopher Jagoda, Matthew Upmeyer, and FCStone
02/11/2014 Plaintiff's Amended Motion for Continuance and Plaintiff's Motion for Expedited Hearing of the Same
02/12/2014 Order Approving Stipulation (signed Protective Order)
02117/2014 FCStone's Designation of Expert Witnesses . 02/18/2014 FCStone's Opposition to VICNRG's Motion to Continue Hearing on Motion for Summary Judgment
02/18/2014 Rule 11 Agreement re Extension of trial date and discovery deadlines 02/2112014 FCStone's Traditional and No-Evidence Motion for Summary Judgment 02/21/2014 Withdrawal of Motion to File Under Seal 02/27/2014 VICNRG's Unopposed Motion for Continuance of Trial Setting 03/3/2014 Order Granting Trial Continuance
03/07/2014 Plaintiff VICNRG LLC's Response to FCStone's Traditional and No- Evidence Motion for Summary Judgment
Appendix 020 \
03/07/2014 Plaintiff's Objections to FCStone's Summary Judgment Evidence
03/07/2014 VICNRG's Motion to file Under Seal Pursuant to Protective Order
03/7/2014 Appendix of Unpublished Legal Authorities in Support ofVicNRG's Response
03/11/2014 FCStone Defendants' Objections to VICNRG's Summary Judgment Evidence
03/11/2014 Response to VICNRG's Objections to FCStone's Summary Judgment Evidence
03/11/2014 Reply in Support ofFCStone's Traditional and No-Evidence Motion for Summary Judgment
03/13/2014 FCStone Defendants' Motion to Strike VICNRG's Unauthorized Surreply
03/13/2014 Plaintiff VICNRG Surreply to Defendant FCStone's Reply to VICNRG's Response to FCStone's Traditional and No-Evidence Motion for Summarv Judlllllent 03/13/2014 Appendix of Unpublished Legal Authorities in Support of VicNRG's Surreply
3/18/2014 FCStone Defend ants' Motion for Leave to File Additional Summary Judgment Evidence
03/25/2014 Rule 11 Agreement Extending Discovery
03/25/2014 VicNRG's Withdrawal of Motion to File Under Seal Pursuant to Protective Order
03/28/2014 Response to VICNRG's Surreply to FCStone's Traditional and No- Evidence Motion for Summary Judgment
03/2812014 PlaintiffVicNRG LLC's Post-Hearing Brief
04/04/2014 PlaintiffVICNRG LLC's Response to FCStone's Traditional and No- Evidence Motion for Summary Judgment
Appendix 021 \
06/03/2014 FCStone's Motion for Protection and to Quash Notices of Deposition
06/03/2014 Notice of Oral Hearing on FCStone's Motion for Protection and to Quash Notices of Deposition
06/05/2014 PlaintiffVICNRG's Response to FCStone's Motion for Protection and VICNRG LLC's Motion to Compel Depositions
06/17/2014 FCStone's Response to VICNRG's Motion to Compel and Reply in Support of Motion for Protection and to Quash
06/19/2014 PlaintiffVICNRG LLC's Surreply to FCStone's Motion for Protection and Reply in Support ofVICNRG LLC's Motion to Compel Depositions
06/30/2014 Order Denying Protection from Discovery Request/Compelling Deposition Appearance
07/14/2014 Plaintiff's Supplemental Designation of Experts
07/30/2014 Rule 11 Agreement re extension deadlines & setting of deadlines
8/01/2014 Order Granting Summary Judgment
10/15/2014 VicNRO's Request for Additional Documents
IT IS FURTHER ORDERED that this order of severance does not affect the
claims of the remaining parties to the instant case, does not cause a realignment of parties
in the case, and that as a result of this order of severance, the style of the instant case
shall hereafter be styled VicNRG LLC v. Green Diesel, LLC and Fuel Streamers, Inc. fl Signed this1f day of October, 2014. I ~ \O·'l.'\.la.\ ~orJC·
Appendix 022
DOCUMENT 5
Appendix 023
2/20/201512:46:16 PM Chris Daniel - District Clerk Harris County Envelope No. 4228668 By: Phyllis Washington Cause No. 201305124B Filed: 2/20/2015 12:46:16 PM
VICNRGLLC, § IN THE DISTRICT COURT Plaintiff § § v. § HARRIS COUNTY, TEXAS § FCSTONE, LLC, FCSTONE TRADING, § LLC and FCSTONE GROUP, INC., § Defendants §• § 334TH DISTRICT COURT
CONDITIONAL NOTICE OF APPEAL
Pmsuant to rule 25.1 of the Texas Rules of Appellate Procedure, Plaintiff VicNRG LLC will appeal, and gives notice of its appeal, from the order of severance signed on October 29, 2015 in VICNRG LLC v. FCStone, LLC, FCStone Trading, LLC and FCStone Group, Inc. in the 334th District Court of Harris County, Texas, to the First or Fourteenth Court of Appeals, Houston, Texas. Though Plaintiff denies that the order of severance of October 29, 2015 was final, it files this Notice of Appeal because of the Court has not yet ruled on Plaintiff's Motion for Entry of Final Judgment or, Alternatively, Motion to Extent Post-Judgment Deadlines because it appears that the appellate deadlines, if extended under Tex. R. Civ. P. 306a,terininates on today's date.
Respectfully submitted,
BLUMBERG & BAGLEY, L.L.P.
by: Isl Peter F. Bagley Peter F. Bagley Texas Bar No. 00783581 2304 West Interstate 20 Suite 190 Arlington, Texas 76017 (817) 277-1500 Facsimile (817) 277-1170
NOTICE OF APPEAL Page 11 Appendix 024
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
By my signature below, I hereby certify that true copies.of the above and foregoing Notice of Appeal were forwarded to the following via the means indicated below on this the 20th day of February, 2015:
VIA ELECTRONIC SERVICE Mr. James T. Drakeley Mr. R. Scott Seifert Hiersche, Hayward, Drakeley & Urbach, P.C. 15303 Dallas Parkway, Suite 700 Addison, Texas 75001 Co-Counsel for PlaintiffVicNRG LLC;
VIA ELECTRONIC SERVICE Mr. Mark K. Glasser Ms. Tracy LeRoy Sidley LLP 1000 Lousiana, Ste. 6000 Houston, Texas 77002 Counsel for Defendants FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc.
s/ Peter F. Bagley Peter F. Bagley
NOTICE OF APPEAL Page 12 Appendix 025
DOCUMENT6
Appendix 026
Cause No. 2013-05124-B
VICNRGLLC § IN THE DISTRICT COURT § v. § OF HARRIS COUNTY, TEXAS § GREEN DIESEL, LLC, et al. § 334TH JUDICIAL DISTRICT
FINAL JUDGMENT IN SEVERED CAUSE
ON THIS DAY the Court considered the Motion for Entry if* o~l Judgment in this ~ severed cause, 2013-05124-B, filed by plaintiff VicNRG LLC ("Vi~"). Upon consideration
of the motion and the response thereto of defendants FCStone,~FCStone Trading, LLC, and
FCStone Group, Inc. (together "FCStone"), the Court is ~~opinion that the motion is well- taken and should be GRANTED. Accordingly, it is . h~ Q ORDERED, ADJUDGED and DEC? that FCStone's Traditional and No-
Evidence Motion for Summary Judgment is ~y GRANTED (as previously ordered, on an interlocutory basis, by Order dated August &014). It is, further,
ORDERED, ADJUDGED r/!f?~ECREED that VicNRG shall take nothing on its
U, further, causes of action against FCStone.
ORDERED, ADJUD~~ and DECREED that FCStone be awarded all costs of court
related to its defense her~Q is, further, <[@ 0
ORDERED,, ~JUDGED and DECREED that this action be, and hereby is,
DISMISSED ~PREJUDICE. This is a Final Judgment that disposes of all claims and parties in thiMered cause of action.
SIGNED this Io~ day of dwd ~~~~~--~~~~~ 2015.
FILED Chris Oanlel District Clerk
MAR f O2015 nme:.. -iAr.1i7irrri.'aEco::::u':intr,=',":;:::re~xu~- BY._ _ _n:::=.::::--- Appendix 027 Deputy
DOCUMENT7
Appendix 028
2/4/201511:10:05AM Chris Daniel - District Clerk Harris County Envelope No. 4015284 By: DANIELLE JIMENEZ Filed: 2/4/201511:10:05AM
Cause No. 201305124-B
VICNRGLLC, § IN THE DISTRICT COURT Plaintiff § § v. § HARRIS COUNTY, TEXAS § FCSTONE, LLC, § FCSTONE TRADING, LLC and § 334TH DISTRICT COURT FCSTONE GROUP, INC., Defendants
PLAINTIFF'S MOTION FOR ENTRY OF FINAL JUDGMENT OR, ALTERNATIVELY, MOTION TO EXTEND POSTJUDGMENT DEADLINES
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff VicNRG LLC files this, its Motion for Entry of Final Judgment or, Alternatively,_ Motion to Extend Postjudgment Deadlines, and in support of the same would respectfully show the Court the following:
I. Motion for Entry of Final Judgment
1. VicNRG LLC ("VicNRG") asks the Court to enter a final judgment in this cause that FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. (collectively, "FCStone") submitted for the Court's signature in October 2014. FCStone claims that the order of severance that the Court signed on October 29, 2014 operates as a final judgment, but VicRNG disputes this contention for the reasons below. A. Background Facts
2. On July 3, 2012 VicNRG filed its Original Petition in the 153rd District Court of Tarrant County. That court subsequently transferred this matter to the 334th
District Court of Harris County, Texas. Page I1
Appendix 029
3. Defendants Philip J. Rivkin, Fuelstreamers Group, Greendiesel Trading, S.A., PetroEthanol LLC, Petro Constructors Pvt., Ltd., Petro Constructors LLC, and Sterling Energy, LLC failed to answer the lawsuit, and VicNRG obtained an interlocutory default judgment against them on June 24, 2013. Exhibit 1. These defendants were severed out of this case on November 7, 2013 and transferred to the compamon case designated cause number 201305124A (the "First Severed Case"). Exhibit 2.
4. The Court disposed of VicNRG's claims against FCStone by thiS Court's interlocutory summary judgment dated August 1, 2014. Exhibit 3.
5. The order of severance creating the First Severed Case fails to contain the clear language required by applicable law indicating unmistakably that the order is (or was) .final and appealable even though the order arguably disposed of all causes of action that VicNRG pleaded against the severed defendants. Exhibit 2. See also Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2000) (discussing inclusion of certain language to make an order final and appealable). The transmittal form that the district ... clerk used to create the severed action in the First Severed Case showed it to be a pending case, and the clerk has always listed it as an active case on its website. Exhibit 4.
6. On June 26, 2014 the Court sent a notice of dismissal to VicNRG's counsel regarding the status of the First Severed Case and requesting that its counsel seek the entry of a judgment or file a motion to retain. Exhibit 5. This occurred more than seven months after the Court signed the order of severance that severed the First Severed Case from VicNRG's original lawsuit. By all indications the Court and its clerk viewed the order of severance creating the First Severed Case as interlocutory. VicNRG meanwhile
Page I2
Appendix 030 filed a motion to retain on July 18, 2014 and the Court signed the order of retention on September 18, 2014. Exhibits 6 & 7.
7. Less than a month later FCStone filed an unopposed motion to sever VicNRG's claims against it on October 6, 2014. Exhibit 8. The motion stated that its purpose was to permit the entry of a final and appealable judgment. Id., p.1. FCStone then asked that the Court grant the motion and "sign a Final Judgment in the severed case making the Interlocutory Order granting summary judgment entered herein final." Id., p. 2. By filing this pleading, FCStone admitted tht the interlocutory order previously signed was not final and appealable. As a result it is judicially estopped from now taking an inconsistent position. Long v. Knox, 291 S.W.2d 292, 295 (Tex. 1956). In addition FCStone attached a proposed "final judgment." Exhibit 9. The language of the proposed judgment states that the judgment would be "final and dispos[e] of all claims and parties." Id. Alongside the final judgment, FCStone submitted a form of a proposed order of severance. Exhibit 10. The proposed order listed several documents to make up the file in the severed case. When. VicNRG noticed that the list of documents left off some additional documents that VicNRG deemed necessary to be included in the ·appellate record in the severed case, it filed a request for additional records to be added to the severed case. Exhibit 11. On October 29, 2014 the Court signed an order of severance creating cause number 201305124B (the "Second Severed Case"). Exhibit 12. Significantly the order contains no language that suggests that the order is final and appealable. Id. Thus, this order too fails to meet the requirements for finality imposed by applicable law, including that discussed Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2000), and its progeny.
Page I3
Appendix 031
8. In the meantime the court's transmittal form creating the Second Severed Case listed it as "pending." Exhibit 13. Also, the district clerk's website showed it as an active case and continues to do so. Exhibit 14. Given VicNRG's experience with the Court in the First Severed Case, the fact that FCStone moved the Court to enter a final judgment, and the fact that the clerk showed the ~evered case as pending and active, VicNRG saw it as premature to file a notice of appeal. It appears that the clerk of this Court created the file for the severed case sometime in early December 2014. Exhibit 13. VicNRG's counsel contacted the court clerk on January 5, 2015 to inquire when the Court might sign the final judgment that FCStone submitted for signature. The clerk indicated that the parties should submit an agreed final judgment or that FCStone would have to get the Court to sign the judgment and that she would be contacting FCStone's counsel to inquire when this might be done.
9. When VicNRG's counsel noticed that no final judgment was signed after this call, VicNRG's counsel contacted FCStone's counsel by email on January 9, 2014. This message prompted no response. Finally, Peter Bagley of Blumberg & Bagley, LLP contacted FCStone's counsel, Tracy LeRoy of Sidley Austin LLP, by telephone on January 21, 2015. Mr. Bagley learned for the first time during this call of Ms. LeRoy's contention that the order of severance was a final judgment and that the appellate deadlines had run in the Second Severed Case. B. Argument
10. VicNRG disagrees with FCStone's contention regarding the effect of the order of severance. The severance of an interlocutory judgment into a separate cause does not necessarily make the interlocutory judgment final when the circumstances of
the order of severance contemplate or suggest additional action. Diversified Fin. Sys., Page I4
Appendix 032 Inc. v. Hill, Heard, ONeal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001). This is seen time and time again in other cases. See Doe v. Pilgrim Rest Baptist Church, 218 S.W.3d 81, 82 (Tex. 2007) (holding that the severance order contemplated assignment of the case on the docket and compliance with the district clerk's procedures [here being the payment of a filing fee]); Blakenship v. Robins, 878 S.W.2d 138, 138 (concluding that the order of severance was not final when conflicting information existed about whether the severed parties would be situated in the parent case or the severed case); In the Interest of SAA., No. 2-08-080-CV, 2008 Tex. App. LEXIS 3428, at *2 (Tex. App.-Fort Worth May 8, 2008, no pet.) (mem. op.) (holding that the order of severance called for additional action by mentioning that the separate action would proceed to a final judgment); Shamoun v. Cisco Sys. Capital Corp., No. 2-07-449-CV, 2008 Tex. App. LEXIS 5191, at *3 (Tex. App.-Fort Worth Jul. 10, 2008, no pet.) (mem. op.) (noting that the trial court treated the order of severance as interlocutory by setting a joint status conference); Flores v. Sandoval, No. 01-02-01197-CV, 2004 Tex. App. LEXIS 4181, at *6 (Tex. App.-Houston [1st Dist.] May 6, 2004, no pet.) (mem. op.) (noting that the order-like the one in this case-does not dispose of all parties and all claims and that it fails to take into account the presence of another party).
· 11. Moreover, the Texas Supreme Court has made clear that the finality of an order should be expressed in the words of the order itself. Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2000). The Texas Supreme Court in Lehmann held that an order granting summary judgment that contained a Mother Hubbard clause (specifically, "all ·relief not expressly granted is herein denied") was insufficiently clear to give the order finality for purposes of an appeal. Id. at 200. The Supreme Court noted that litigants
should be able to recognize when a judgment purports to be final on its face and treat it Page I5 Appendix 033
as final for purposes of an appeal. Id. at .20-2. Finality should therefore be resolved by determining the court's intent from the language of the order at issue and the record as a whole, aided on occasion by the conduct of the parties. Id. at 203.
12. In the present case, the order of severance lacks language that makes it unmistakably clear that the order is a final one. It contains no· such words as final or appealable, to say nothing of a Mother Hubbard clause. As indicated in Lehmann, it is sometimes necessary to look at the record to ascertain the court's intent. See also In the Interest of J.D., 304 S.W.3d 522, 525 (Tex. App.-Waco 2009, no pet.). It is sometimes the case that a closer look at the record shows that a particular order is not final. See, e.g., Martinez v. Humble Sand & Gravel, 875 .S.W.2d 311, 313 (Tex. 1994) (holding that severance order was not final as it suggested additional defendants might be joined later); Phillips v. Baker, No. 14-02-01099-CV, 2002 Tex. App. LEXIS 8568, at *3 (Tex. App.-Houston [14th Dist.] Dec. 5, 2002, no pet.) (not designated for publication) (holding that the record clearly established that the order at issue was not final); Youngblood & Assocs., P.L.L.C. v. Duhon, 57 S.W.3d 63, 65 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (holding that the summary judgment was not final because it did not dispose of a claim for relief).
13. Above all else, the Supreme Court instructs that courts should avoid a construction of an order that denies a party the right of appeal. Lehmann, 39 S.W.3d at 203 (holding that the right of appeal should not be lost because of an overly technical application of the law); Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992) (noting that decisions of the appellate courts should turn on substance rather than procedural technicality). See also McRoberts v. Ryals, 863 S.W.2d 450 (Tex. 1993) (holding that
party still had the right of appeal given problems stemming from rniscornmunications Page I6
Appendix 034 from the trial clerk and appellate clerk about the case); Butler v. Whitten, No. 02-13-00306-CV, 2014 Tex. App. LEXIS 6, at *6 (Tex. App.-Fort Worth 2014, no pet.) (mem. op.) (holding that a party's erroneous appeal of the parent case and not the severed case was a bona fide attempt to invoke appellate jurisdiction and thus preserved party's right to appeal).
14. As explained above, the case file in the referenced matter suggests that the Court and the clerk treated the order of severance as interlocutory (as it did with the order of severance in the First Severed Case) and that the order of severance fails to contain the requisite language indicating that it is a final judgment. Under the facts of this case, VicNRG's right to appeal should not be curtailed by pedantic adherence to procedural technicalities. It would seem that FCStone seeks to penalize VicNRG for waiting for the Court to take the action that FCStone sought, but FCStone should be estopped from taking this position, which is inconsistent with the position it took earlier in asking the Court to sign a final judgment (something different from the order of severance). FCStone should not be rewarded for its subterfuge. It would be an injustice to punish VicNRG for believing that FCStone actually intended to have the Court sign the final judgment when, it would seem, this was never so. The Court is well within its inherent powers to treat the order at issue as interlocutory to aid its exercise of jurisdiction and the administration of justice. See Public Util. Comm. v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988). Thus, VicNRG asks this Court to enter the draft final judgment that FCStone previously submitted.
II. Motion to Extend Postjudgment Deadlines
15. In the alternative, VicNRG asks that the Court grant its Motion to Extend
Postjudgment Deadlines. Tex. R. Civ. P. 306a(5). Assuming that the order of severance Page I7
Appendix 035 is a final judgment, which VicNRG denies, then VicNRG did not get actual notice of the fact that the order of severance was final. While VicNRG received notice of the order at or about the time it was signed in October 2014, VicNRG did not get word that it operated (or was intended to operate) as a final judgment (if this is so) for the reasons described above. In this connection it is particularly noteworthy that the Court itself treated this order as interlocutory. And the fact that FCStone asked the Court to sign a separate "final judgment" that contained unmistakable language offinality, but which was never signed, makes clear FCStone's intent that both the Court and VicNRG treat this order in this fashion.
16. As described above, Mr. Bagley spoke to Ms. LeRoy by telephone on January 21, 2015 and learned for the first time that FCStone had adopted the view that the order of severance made the previously interlocutory order final. This communication occurred more than twenty days after the date of the order (October 29, 2014), but less than ninety days from the date of the order itself (January 27, 2015). Accordingly, VicNRG asks that the postjudgment deadlines in this cause be extended to enable VicNRG to file a notice of appeal, which may still occur under an enlarged calendar within thirty days of J~nuary 21, 2015 (the actual notice date). TEX. R. Crv. P. 306a(4); TEX. R.APP. P. 26.
PRAYER
WHEREFORE, Plaintiff VicNRG LLC requests that the Court enter a final judgment in this cause to start the appellate deadlines of this case, that the Court alternatively extend the postjudgment deadlines, and that the Court grant it such other and further relief to which it may show itself to be justly entitled.
Page I8
Appendix 036
Respectfully submitted,
BLUMBERG & BAGLEY, L.L.P.
by: ls/Peter F. Bagley Daniel E. Blumberg Texas Bar No. 02512985 Peter F. Bagley Texas Bar No. 00783581 2304 West Interstate 20, Ste. 190 Arlington, Texas 76017 (817) 277-1500 Facsimile (817) 277-1170 daniel@blumbergbaglev.com peter@blumbergbaglev.com
and
HIERSCHE, HAYWARD, DRAKELEY & URBACH, P .C. James T. Drakeley Texas Bar No. 06111600 R. Scott Seifert Texas Bar No. 24003860 Laurie N. Arnoldy Texas Bar No. 24003860 15303 Dallas Parkway, Suite 700 Addison, Texas 75001 Tel: 972·-701-7000 Fax: 972-701-8765 jdrakelev@hhdulaw.com sseifert@hhdulaw.com larnoldv@hhdulaw.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF CONFERENCE
Peter Bagley, one of the attorneys for VicNRG, conferred with counsel for Defendants FCStone on February 3, 2015. Though she did not directly oppose the motion, she also did not agree to it. Accordingly, we view FCStone's lack of consent as opposition to the motion, and thus it is presented to the Court for resolution.
sl Peter F. Bagley Peter F. Bagley Page I9
Appendix 037
CERTIFICATE OF SERVICE
I hereby certify that true copies of the foregoing Plaintiffs Motion for Entry of Final Judgment were served to the following on this the 4th day of February, 2015 in accordance with the Texas Rules of Civil Procedure via the means indicated below:
VIA ELECTRONIC SERVICE Mr. Jam es T. Drakeley Mr. R. Scott Seifert Hiersche, Hayward, Drakeley & Urbach, P.C. 15303 Dallas Parkway, Suite 700 Addison, Texas 75001 Facsimile (972) 701-8765 Co-Counsel for Plaintijf VicNRG LLC;
VIA ELECTRONIC SERVICE Mr. Mark Glasser SidleyLLP 600 Travis Street, 31st Floor Houston, Texas 77002 Facsimile (713) 315-9119 Counsel for Defendants FCStone, LLC and FCStone Trading, LLC
sf Peter F. Baglev Peter F. Bagley
Page j 10
Appendix 038
VERIFICATION
THE STATE OF TEXAS
COUNTY OF TARRANT
BEFORE ME, the undersigned Notary Public, on this day, February 3, 2015, personally appeared Peter F. Bagley, who is personally known to and who, having been by me duly sworn, on his oath deposed and said that all of the facts set out in the above and foregoing document in paragraphs 8, 9, and 16 are personally known to him and are true and correct.
Page I 11 Appendix 039
\~·oS\2A Case No. C-201305124
VICNRG LLC, . § IN THE DISTRICT COURT Plaintiff § ·.::;: I v.. § § - ·>- ' ;:) . c- GREEN DIESEL, LLC, § PHILIP J. RIVKIN, § FUELSTREAMERS GROUP, § FUEL STREAMERS, INC., § GREENDIESEL TRADING S.A., § PETROETHANOL LLC, § PETRO CONSTRUCTORS PVT, LTD., § PETRO CONSTRUCTORS LLC, § STERLING ENERGY LLC, § FCSTONE, LLC ·and § FCSTONE TRADING, LLC, § Defendants § 334TH DISTRICT COURT
INTERLOCUTORY DEFAULT JUDGMENT
On June 7, 2013, Plaintiff appeared by and through its attorneys of record, Blumberg & 2-\ i.-\- \ Bagley, LLP, and announced ready. Defendants Philip J. Rivkin, Fuelstreamers Group, ~ ... \ . '""\ ... \ '6 ... \ . '\ ___, GreenD1esel Trading S.A., PetroEthanol LLC, Petro Constructors PVT, LTD, Petro Constructors
LLC and Sterlin~~n';.~y, LLC ("Defendants" herein), though duly cited to appear and answer herein, wholly failed to appear or to answer herein and wholly made default. After considering
the pleadings, the affidavits, and all other evidence presented to the Court, the Court FINDS and HOLDS as follows:
1. This Court has jurisdiction over the subject matter of this suit.
2. Defendants were duly cited to appear and answer in this suit.
3. This Court has acquired personal jurisdiction over the Defendants.
EXHIBIT INTERLOCUTORY DEFAULT JUDGMENT 1
I Appendix 040
4. The appearance day for the Defendants has passed.
5. Defendants have failed to answer or otherwise appear in this case.
6. The return of service upon Defendants has been on file for the time required by law.
7. Plaintiff has suffered actual damages in this case in the amount of $18,564,329.00.
8. Plaintiffs claims are meritorious and should be in all things granted.
9. Plaintiffs claim for actual and exemplary damages is fully supported by the
Plaintiffs pleadings on file herein.
10. The acts and omissions of the Defendants against who this Default Judgment is
rendered were such as to give rise to claims for exemplary damages and the
evidence supports the exemplary damages awarded herein.
11. The evidence presented to the Court supports an award of attorneys' fees in the
amount of $131,994.77, which amount is both reasonable and necessary.
12. Plaintiff is entitled to recover its court costs incurred and to be incurred in
· connection with this matter.
12. Plaintiff will incur additional reasonable and necessary attorneys' fees in the event that one or more of the Defendants against whom this Default Judgment is rendered files one or more post-judgment motions, appeals, or other applications for relief and this Judgment is not set aside by this Court or is ultimately upheld during the appellate process, as more specifically enumerated below, which should be adjudged against the Defendants seeking such relief:
a. -$25,000.00 for each motion for new trial or bill of review filed if this Default Judgment is upheld in whole or in part;
b. $50,000.00 for each notice of appeal or restricted appeal Defendant files if this Default Judgment is upheld in whole or in part;
c. $10,000.00 in the event of the filing of an application for discretionary review, petition for review, other appeal, or a response to a petition for discretionary review, a response to a petition for review, or a response to another appeal with the Supreme Court of Texas if the application, petition, or other appeal is denied or this Default Judgment is upheld in whole or in INTERLOCUTORY DEFAULT JUDGMENT 2
Appendix 041
part; and d. $25,000.00 in the event one or both parties prosecutes or contests a petition for discretionary review, a petition for review, or other appeal that has been granted by the Supreme Court of Texas and Plaintiff prevails in connection with such appeal in whole or in part.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Plaintiff VicNRG LLC have and recover from Defendants Philip J. Rivkin, Fuelstreamers Group, GreenDiesel Trading S.A., PetroEthanol LLC, Petro Constructors PVT, LTD, Petro Constructors LLC and Sterling Energy, LLC, jointly and severally, actual damages in the sum of $18,564,329.00, exemplary damages in the amount of $27,846,493.50, reasonable and necessary attorneys' ·fees and expenses in the additional sum of $131,994.77, phis any and all court costs incurred and to be incurred in connection with this matter, all with post judgment interest thereon at the statutory rate of five percent (S.00%) per annum from the date a Final Judgment is entered in this cause until paid in full.
IT IS FURTHER ORDERED, ADJUDGED and DECREED that Plaintiff VicNRG LLC have filid recover from Defendants Philip J. Rivkin, Fuelstreamers Group, GreenDiesel Trading S.A., PetroEthanol LLC, Petro Constructors PVT, LTD, Petro Constructors LLC and Sterling Energy, LLC the following conditional awards of attorneys' fees and expenses:
a. $25,000.00 for each motion for new trial oi: bill of review filed if this Default
Judgment is upheld in whole or in part;
b. $50,000.00 for each notice of appeal or restricted appeal Defendant files if this
Default Judgment is upheld in whole or in part;
c. $10,000.00 in the event of the filing of an application for discretionary review,
petition for review, other appeal, or a response to a petition for discretionary INTERLOCUTORY DEFAULT JUDGMENT 3
Appendix 042 . .
review, a response to a petition for review, or a response to another appeal with the
Supreme Court of Texas if the application, petition, or other appeal is denied or this
Default Judgment is upheld in whole or in part; and
d. $25,000.00 in the event one or both parties prosecutes or contests a petition for
discretionary review, a petition for review, or other appeal that has been granted by
the Supreme Court of Texas and Plaintiff prevails in connection with such appeal in
whole or in part.
IT IS FURTHER ORDERED, ADmDGED and DECREED that this Interlocutory Default
Judgment does not preclude Plaintiff from later obtainip.g a finding of liability and recovering
damages and any other relief from one or more other defendants in this cause, whether singly,
jointly, and/or severally (with or without the Defendants named herein) on Plaintiffs causes of
action in this suit.
IT IS FURTHER ORDERED, ADJUDGED and DECREED that this Interlocutory Default
Judgment shall be merged into a Final Judgment once issu~d in this cause.
SIGNED: - - - - - - -, 2013.
INTERLOCUTORY DEFAULT JUDGMENT 4
Appendix 043
Cause No. C-201305124
VICNRGLLC, § Plaintiff § § v. § § GREEN DIESEL, LLC, § ·PHILIP J. RIVKIN, § FUELSTREAMERS GROUP, § FUEL STREAMERS, INC., § HARRIS COUNTY, TEXAS GREEN DIESEL, LLC, § GREENDIESEL TRADING S.A., § PETRO-ETHANOL LLC, § PETRO CONSTRUCTORS PVT, LTD. , § PETRO CONSTRUCTORS LLC, § STERLING ENERGY LLC, § FCSTONE, LLC and § FCSTONE TRADING, LLC, § Defendants § 334th DISTRICT COURT § §
ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION FOR SEVERANCE OF ACTIONS
On this day the Court considered Plaintiffs Unopposed Motion for Severance of Actions in the above-entitled and numbered cause. The Court, being satisfied that due notice of the filing of the motion and of the hearing on the motion was given, an,d after considering the pleadings and arguments of counsel, is of the opinion that the motion should be granted.
IT IS, THEREFORE, ORDERED that the claims PlaintiffVicNRG LLC asserted against ~-' ~ •' ,., ll ot l , ., l Defendants Phihp J. Rivkin, FueISireamers Group, Greend1esel Trading S.A., Petroethanol LLC, '\.-\ \•"'' Petro Constructors Pvt, Ltd.; Petro Constructors LLC, and Sterlmg Energy LLC are severed from
this action and made the subject of a separate action.
EXHIBIT
I 2. Appendix 044
IT IS FURTHER ORDERED VicNRG LLC will be the plaintiff in the severed case and Philip J. Rivkin, Fuelstreamers Group, Greendiesel Trading S.A., Petroethanol LLC, Petro Constructors Pvt, Ltd., Petro Constructors LLC, and Sterling Energy LLC will be the defendants in the new action, which is to be styled VicNRG LLC v. Philip J Rivkin, Fuelstreamers Group, Greendiesel Trading SA., Petroethanol LLC, Petro Constructors Pvt, Ltd., Petro Constructors LLC.. and Sterling Energy LLC and to have docket number C-201305124:-A.
IT IS FURTHER ORDERED that the clerk prepare certified copies of the following documents in the instant case for the severed case: 1. VicNRG LLC's Original Petition 2. VicNRG LLC's First Amended Petition 3. Return of Citation for Service on Philip Rivkin 4. Return of Citation for Service on Petro Constructors LLC 5. Motion for Rule I 06 Service on Philip Rivkin 6. Order dated July 24, 2012 re: 106 service 7. Return of Citation for Service on Texas Secretary of State (for Fuelstreamers Group) 8. Return of Citation for Service on Texas Secretary of State (for Greendiesel Trading S.A.) 9. Return of Citation for Service on Texas Secretary of State (for Petroethanol LLC) 10. Return of Citation for Service on Texas Secretary of State (for Petro Constructors Pvt Ltd.) 11. Return of Citation for Service on Texas Secretary of State (for Sterling Energy LLC) 12. Motion to Transfer Venue, Motion to Vacate Appointment of Receiver and Original
Answer of Green Diesel, LLC and Fuel Streamers, Inc. 13. Motion to Transfer Venue and Subject Thereto, General Denial of FCStone, LLC and
FCStone Trading, LLC 14. Order on Defendants' Motion to Transfer Venue
Appendix 045 1:5. Plaintiffs Motion for Entry of Default Judgment 16. Default Judgment 17. Plaintiffs Unopposed Motion to Correct Judgment 18. Order on Motion to Correct Judgment 19. Interlocutory Default Judgment 20. Plaintiff's Motion for Severance of Actions 21. Plaintiffs Unopposed Motion for Severance of Actions 22. Order dated .hily 23, 20!.2 (appointing receiver) 23. Bond dated July 23, 20 I2 24. Order dated Sept. 4, 2012 (denying motion to vacate appointment ofrec_eiver) 25. Order dated Sept. 4, 2012 {regarding bond under Tex. R. Civ. P. 695a) 26. Bond dated Sept. 7, 2012 27. Order Nunc Pro Tune dated Sept. 27, 2012 (amending order appointing receiver) 28. Order dated Sept. 27, 2012 (on receiver's request for approach) 29. Oder dated Oct. 11, 2012 (on receiver's motion to sell property) 30. Order dated Oct. 11, 2012 (on receiver's application for fees) 3L Order dated Oct. 11, 2012 (on receiver's motion to modify order appointing receiver) 32. Order dated Oct. 11, 2012 (on receiver's second motion to modify order appointing receiver) 33. Order dated May 24, 2013 (on receiver's motion to sell certain property-generator) 34. Order dated May 24, 2013 (on receiver's motion to sell certain property-West Hardy Rd.) 35. Order dated Aug. 9, 2013 (on receiver's motion to sell property) 36. This Order of Severance.
Appendix 046
IT IS FURTHER ORDERED that this order of severance does not affect the receivership created in this case to take possession of, manage, and prevent the dissipation of the assets of the certain parties. Accordingly, the receivership shall continue for the severed parties (Philip J. Rivkin, Fuelstreamers Group, Greendiesel Trading S.A., Petroethanol LLC, Petro Constructors Pvt, Ltd., Petro Constructors LLC, and Sterling Energy LLC) in the severed case and shall further continue for the non-severed parties in receivership in the present case (Green Diesel, LLC and Fuel Streamers, Inc.). Unless further amended by order of this court or the court in the severed case, the receiver shall possess the same powers granted by this court through the present date that are enumerated in the various orders set out in the paragraph above (document numbers 22 and 27~35) and those orders are hereby incorporated by reference into this order.
IT IS FURTHER ORDERED that this order of severance does not affect the claims of the remaining parties to the instant case, does not cause a realignment of the parties in the case, and that as a result of this order of severance, the style of the instant case shall hereafter be styled VicNRG LLC v. Green Diesel, LLC, Fuel Streamers, Inc., FCStone, LLC, and FCStone Trading,
LLC. ..,, ti~ \\· 'l·\ 3 SIGNED this 7__ day of-Oct;ebef, 2013.
Appendix 047
2/7/2014 3:35:34 PM Chris Daniel ·District Clerk Harris County Envelope No: 415458 By: JIMENEZ, DANIELLE N
CAUSE NO. P!IJ !GGlib&ft
VICNRGLLC, § IN THE DISTRICT COURT OF § PLAINTIFF § § vs § § § HARRIS COUNTY, TEXAS FUEL STREAMERS INC., § GREEN DIESEL, LLC, § FCSTONE, LLC, § FCSTONE TRADING, LLC AND § FCSTONE GROUP, INC, § § DEFENDANTS. § § 334th DISTRICT COURT
PROPOSED ORDER
This matter came before the Court for heanng on March 14, 2014, on Defendants \\ .. \ . \'l-""\ FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc.'s (together "FCStone")
Traditional and No-Evidence Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
Signed ihis ~Y of Jv j v .tT ,2014.
EXHIBIT
DA! 804048v l s Appendix 048
TRANSMITTAL FORM FOR SEVERANCES
COMPLETE THIS FORM AND ATTACH COPY OF SEVERANCE ORDER TO THE INSIDE OF THE FILE JACKET; FORWARD FILE TO CIVIL INTAKE. THIS FORM MUST REMAIN WITH THE FILE UNTIL FEE ADJUSTMENT HAS BEEN COMPLETED BY FEE ACCOUNTING.
Severance Cause Number 2013-05124A Court· 334TH Case Type Severance
Original File Date· 1.28.2013 Date Severance Order Signed 11.7.2013
STYLE· VICNRG LLC VS. RIVKIN, PHILIP J., FUELSTREAMERS GROUP, GREENDI~ TRADING S.A., PETROETHANOL LLC. PETRO CONSTRUCTORS PVT. l TD., PETRO CONSTRUCTORS~AND STERLING ~®f ENERGY LLC ?~ ~) Severance Case Status (check one) FINAL X PENDOO:ci OTHER o~"" Disposal Code or Act1v1ty ~~ . .o~~~ Fee Code & Dtsposa! Date or Ac~ Date ~ .
IF ANY ORIGINAL FEES WERE TRANSFERRED TO THE SEV,. SUIT, PLEASE PROVIDE RECEIPT . AND TRANSACTION NUMBER(S) F~~PARENT SUITE. ~ '1'A ~\ 1!\ ~ COSTS/MISCEL~~fJUS FEES •. _ '~~~ , ~ -~~ .~ ~ ~ . .... ~ ~;,.v• Receipt Number Fee· $ (j~l?J'escnpt1on ~~~ ~ ~ ~·~ "-.J/ Q ~.AA Transaction Number Fee Code ~~ Description Amount ~ f' ~ ~ ~ Receipt Number. _ _ __ Fee· $ '~ Description Amount 0 Transaction Number Fee[~-- ,n~ Description· _ __ ~· COSTS OF SUIT ASSESSED TO: ~ COSTS OF CERTIFIED COPIES ASSESSED TO: ~i) Name Daniel Blumberg rF ~ Amount N/A Address 1119 West Ran ofMfll Road #101 Address N/A Arlin on TX 7 2 #02512985 .ry ~~ ~ Danielle N. Jimene~ · JUHK7 4.3.2014 Clerk Prepann~~ FCN Date ~
Assessment Clerk FCN Date Adjustment Clerk FCN Date
EXHIBIT
l 'I Appendix 049
GRANT DORFMAN JUDGE, 334TH DISTRICT COURT HARRIS COUNTY COURTHOUSE HOUSTON, TEXAS 77002
06/26/2014 TO ALL COUNSEL AND PRO SE PARTIES
Court records indicate that this case 1s el1g1ble for DISMISSAL FOR WANT . OF PROSECUTION because one or more defendants have failed to file an . ~<{@ & answer in this case The case will be DISMISSED FOR WANT OF PROSE~lbN, unless one of the following actions 1s taken by AUGUST 27, 2014 ~ <:~j
1 A Default Judgment 1s signed, ,,,~ " l8';2) 2 All Defendants have answered, or u~ 3 A venf1ed Motion to Retain 1s filed All motions to retain must<&'W set for SUBMISSION on SEPT 17,2014 AT 9 00 AM Pleas.~lude an order and notice with the motion ~ If you have any questions regarding this notice, please c~ the Court Coordinator, Walter Bucko at (713) 368-6492 Thank y~or your prompt attention to this matter "~,,-;:,.. . ~zy.
~ a ~ F'ef!f 'V)
Fg (,J ~ "::::::,
<:~ ~) # GRANT DORFMAN Judge, 334TH DISTRICT COURT ~ CASE - 201305124A FILED - 20130128 COURT - 334th TYPE - DAMAGES (OTH) VICNRG LLC (A TEXAS VS GREEN DIESEL LLC (A
2512985 DANIEL EDWARD BLUMBERG 2304 WEST INTERSTATE 20, SUITE 190 ARLINGTON, TX 76017 .EXHIBIT
Appendix 050
7/18/2014 2:16:58 PM Chris Daniel - District Clerk Harris County Envelope No. 1874335 By: DANIELLE JIMENEZ
Cause No. 201305124A
VICNRGLLC, § IN THE DISTRICT COURT Plaintiff § § V. § § PHILIP J. RIVKIN, FUELSTREAMERS GROUP, § § p~~ u) * r(l)~ GREENDIESEL TRADING S.A., PETROE'I'HANOL LLC, PETRO CONSTRUCTORS PVf, LTD., PETRO CONSTRUCTORS LLC, STERLING ENERGY LLC, Defendants § § § § § § Q ¢, ---y HA RRT~UNTY, TEXAS
§ ¢~ .
§ . . §!!J 334TH DISTRICT COURT ~i!(Qj ¢ <?@
PLAINTIFF'S 4 o N TO RETAlN 1' / (Q; TO THE HONORABLE JUDGE OF.~D COURT: . . ~v, Plaintiff VicNRG LLC 0~RG) \.~fl files this, its Motion to Retain, and in support of
the same would respec~l~nv unto the Court the following:
1. VicNRG 0~ receipt of the Court's .Notice of Dismissal for ·want of . ~ Prosecution dated ~~e 26, 2014. The instant case was severed from VicNRG LLC v. rrJ':~I Green Diesel, ~et al., \vhich is designated as cause number 201305124 in the 334th
District c-Sof Harris County, Texas. A default judgment '.Yas taken against Defendants Philip .J. Rivkin, Fuelstreamers Group, GreenDiesel Trading S.A~, PetroEthanoI LLC, Petro Constructors PVT, LTD, Petro Constructors LLC and Sterling Energy, LLC in the original case, and an Order of Severance was granted in that cause
Page I1 EXHIBIT
I ' Appendix 051 on November 7, 2013 that transferred the non-answering Defendants (the severed Defendants) to the present, severed case. Exhibit 1.
2. Meanwhile, the Court appointed a receh·er in the original case on July 23, 2012 over aU of the Defendants in that case \Vith the exception of FCStone, LLC and its
affiliates. . The Order of Sever~nce reflects that the recei\·er shall conth~o function in ~v
the role of receiver in the original case O\·er certain non-severed p~s and as receiver ~ for the severed Defendants in the present case. The receiv~~owers a1so extend to o~. Green Diesel Corporation, Noblevmod Properties, LLC, ~<--Nob1ewood A\iation, LLC . . ~
which are parties that are partially or wholly owned .~~trolled by one or more of the
severed· Defendants, as \·vell as assets and . . liabilftl@@~ Q other entities that are affiliated
\Yith one or more of the severed Defendants. 0(0.@;;J ~ 3. VicNRG deems it necessaRf~ retain the case on the docket for the ~~· '
purpose of allowing the receiver to co®~ue to serve in the capacity of receiver for the
se\·ered Defendants. Because offfel~\·ered Defendants' relationship \\·ith the parties . ).Q.~· who are in receivership in ca~~umber 201305124 (i.e., Green Diesel, LLC and Fuel
Streamers, Inc.) and th~~lationship \Vith the other companies and assets ai1d .rr~ liabilities described ~e, it is essential that the receiYer be allowed to continue his
acthities to take #ession of, manage, and pre\·ent the dissipation of assets of all of ,<)t~ . ~ t h ese parties. <~a case m . . pomt, t I1e recetver . recent1y h-1 ecl an App 1·1catlon . to Appron:>
Settlenu:n~~olving an out-of-state litigation currently pending against one of thP se\·ered Defendants. Therefore, it is highly premature to dismiss this suit \\·bile significant unfinished business remains in connection with the severed Defendants. For these reasons, there is good cause to maintain the present case on the Court's docket.
TEX. R. Cn·. P. 165a. Page I2
Appendix 052
PRAYER i;\7HEREFORE, Plaintiff VicNRG LLC requests that the Court retain the present
case on the Court's docket, and that it be granted such other and further relief to which it may shovv itself to be justly entitled.
Respectfully submitted, * ~ BLUMBERG & BAGLEY,~. ~ o~ by: /sf Peter F. Ba~ Peter F. Bagle~~d! Texas Bar N~~783581 2304 West lIJ.~ate 20, Ste. 190 Arlingt~o, T s 76017 (817) 272- -~- Facsim' ' 17) 277-1170 ATTQ YS FOR PLAINTIFF ete · lumbero-ba 0 1ev.com ~ ~(J '('\)~ ~I . ®> <t~ -~ Q ·c\ 1M u"d' ~~, o~ e.'0_<tJ r'O.~ ~ ~~
Page I3
Appendix 053
VERIFICATION
THESTATEOFTEXAS § § THE COUNTY OF TARRANT §
BEFORE ME, the undersigned Notruy Public in ~nd for the Stat~~exas, on this ~1 day appeared Peter F. Bagley, ·who is personally known to me and ~' after being duly ~ sworn, stated on his oath that he is one of the attorneys rert~nting VicNRG, LLC, ~- Plaintiff in the above-referenced cause, and that all ~f the~in the foregoing pleading are 1\i'thin the knowledge of affiant and true and corref~, ~),I /' .-~.,I co0;; · / ,j : :~ }· 'f. • .l • /" /',
'~ ..·:.} f /;''fl/·· .. .__,. !_/., )~c3 <. J . ~~ Peter F. Baglep.• · ~ r[f ~/ SvVORN AND SUBSCRIBED T~FORE ME on this 18th /~ U_/"''), i \ &~ ~ff- i -~ ALISOH M \:~~ / \, GJ0Y otary Pubhem and or th ~ .j . . tor
J~~*) Hor~YP srAIEOF~ State of Texas ) ~_§; 12 l!l>'lflnr 'N.--;-,.,.,,. -20 "1 6
tJ ~~ o~ ,e.<::--.~ <().~
~ ~~
Page I4
Appendix 054
7/18/2014 2:16:58 PM Chris Daniel - District Clerk Harris County Envelope No: 1874335 By: JIMENEZ, DANIELLE N
Cause No. 201305124A
VICNRGLLC; IN THE DISTRICT COURT Plaintiff
v.
PHILlP J.RIVKIN, FUELSTREAMERS GROUP, GREENDIESEL TRADING S.A., PETROETHANOL LLC, PETRO CONSTRUCTORS PVT, LTD., PETRO CONSTRUCTORS LLC, STERLING ENERGY LLC, Defendants
ORDER ON l~ON TO RETAIN
On this day came to be pres~ed the Motion to Retain of Plaintiff VicNRG, LLC
in the above-styled and num~~use. 0 After due consideration, the Court finds that
the motion should be gran~ · · .
IT IS THEREF~ ORDERED that the instant case shall be retained on the
Court's docket. .~~ ~~~ SEP 1 8 2014 SIGNE~ . , 2014. 1()) \
~ ~ ~ JUDGEP{d!1 n-6/U~ /J
EXHIBIT
j~ Appendix 055
10/6/2014 11 :00:03 AM Chris Daniel - District Clerk Harris County Envelope No. 2727109 By: KATINA WILLIAMS Filed: 10/6/2014 11:00:03 AM
Cause No. C-201305124
VICNRGLLC, § IN THE DISTRICT COURT OF § PLAINTIFF. § § vs. § § § HARRISCOUNTY~XAS FUEL STREAMERS INC., § ~<© GREEN DIESEL, LLC; § . ~~ FCSTONE, LLC, § ~ FCSTONE TRADING, .LLC AND § o~ FCSTONE GROUP, INC. § § '~ ofJ:,c:!J · DEFENDANTS. § ~ § 3~~ISTRICT COURT . -~ FCSTONE'S UNOPPOSED ~'ffiN TO SEVER o~ Pursuant to Rule 41 of the Texas Rules of ~1 Procedure, Defendants FCStone, LLC, . ··~ FCStone Trading, LLC, and FCStone Group~IM(together "FCStone") respectfully move to ·0~ . sever all claims and causes of action alle~~gainst FCStone and for entry of final judgment as ~ to those claims and causes of action.~NRG does not oppose this Motion. ()~ Plaintiff VicNRG LLC~the instant action against numerous defendants. On August
1, 2014, the Court granted.~ry judgment on all causes of action alleged against FCStone. v~·
This ruling, in VicN~~ords, "had the effect ofremoving FCStone from this case." Plt.'s Q 9/10/14 Mot. Enl~~t 1. · ~~ ~ . The Z)~-should sever VicNRG's action against FCStone from VicNRG's claims
against the remaining defendants to permit entry of a final and appealable judgment as to FCStone. See Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995) (severance proper after partial summary judgment to obtain final and appealable judgment, and should be sought when a . judgment disposes of one party); Guidry v. National Freight, Inc., 944 S.W.2d 807, 812
EXHIBIT
Appendix 056 j '
(Tex.App. - Austin 1997, no writ) (summary judgment in favor of one defendant severed from claims pending against other defendants). VicNRG does not oppose this Motion.
For these reasons, FCStone respectfully requests that the Court order the cause between Plaintiff and Defendants FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc.
(together "FCStone") be severnd and made the subject of a sepa,rate suit; that t~urt sign a . ~ _Final Judgment in the severed case inaking the Interlocutory Order granti~mary judgment ~ previously entered herein final; and that FCStone be granted any and ~iMher relief to which it - -~=· may show itself entitled. _ ~~ Respectfully SlJ~ed, ~ By:.:...::/s"""/~:r:;t;;:::..=-===---- ~::r~ 0 ~r K. Glasser -c~ate Bar No. 08014500 ~Tracy N. LeRoy ~ / State Bar No. 2406284 7 cg ,@ SIDLEY ~ysTIN,.LLP ~~ - 1000 Lomsrana, Smte 6000 \.~ Wells Fargo Plaza V Houston, Texas 77002 ~ 713-495-4500 (telephone) _~ 713-495-7799 (facsimile) (Jlg mglasser@sidlev.com ~~, tlerov@sidlev.com ;~QI David Hoffman (admitted pro hac vice) t~Y r.;).~'0 Illinois State Bar No. 6229441 ~~ l;-___; Kees Vandenberg (admitted pro hac vice) ~~ Illinois State Bar No. 6301079
SIDLEY AUSTIN, LLP One South Dearborn Chicago, Illinois 60606 (312) 853-7000 (telephone) (313) 853-7036 (facsimile) david.hoffman@.sidlev.com c.vandenbergi{i'sicllev.com
Appendix 057
COUNSEL FOR DEFENDANTS FCSTONE, LLC, FCSTONE TRADING, LLC, and FCSTONE GROUP, INC.
CERTIFICATE OF CONFERENCE * couns~iV"icNRG I certify that the undersigned counsel. contacted Peter Bagley, by telephone regarding the substance of this Motion on September 15, 2014, ~Mr. Bagley indicated by e-mail on September 17, 2014, that VicNRG does not opp~~his Motion. ~0~ ,~ o~1
By:/s/ Tr~. LeRoy 0 ©) ~
Q~ ~~ ·~ ~a ·n~ ~/ ./?{? rt~ ~~ Q!
rr9 .~ ~! ~,
o~ ,<)~ ~ ~ ~
Appendix 058
· CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing documents was forwarded to all counsel ofrecord on the 61h day of October, 2014, by electronic mail and U.S. mail.
Daniel E. Blumberg Peter F. Bagley Blumberg & Bagley, L.L.P. 2304 W. Interstate 20, Suite 190 Arlington, Texas 76017 Tel: (817) 277-1500 ·(] <* fjf Fax: (817) 277-1170 ~
W. Joel Bryant P.O. Box 53587 ¢~ # Houston, Texas 77052 ~ Tel: (713) 227-7377 ¢~ Fax: (713) 227-7977 -~ David A. Fettner Qqpj Fettner Thompson 6700 Sands Point Dr. )~ Houston, Texas 77074 Tel: (713) 626-7277 fF ~~ Fax: (888) 876-2292 ©~ James T. Drakeley R. Scott Seifert ~~ £,#(®:i Hiersche, Hayward, Drakeley &.~ch, P.C. 15303 Dallas Parkway, Suite 70~ Addison, Texas 75001 ~
Ashish Mahendru ~ u© 1-l. Mahendru P.C. 0 {!$}
111 Bagby, Suite 22~ Houston, Texas 77/!ff} ~) ~~·
By:/s/ Mark K. Glasser
10/6/201411:00:03 AM Chris Daniei. District Clerk Harris County Envelope No: 2727109 By: WILLIAMS, KA TINA L
Cause No. C·201305124·
VICNRGLLC, § IN THE DISTRICT COURT OF § PLAINTIFF. § § vs. § § § HARRISCOUNTY~XAS FCSTONE, LLC, § p~r@ FCSTONE TRADING, LLC AND § u) FCSTONE GROUP, INC. § ~ § o~ DEFENDANTS. § o~ ~ l(f § 3~~ISTRICT COURT ~ -~ PROPOSED FINAL JUDGME~ TO FCSTONE <0 0 This matter came before the Court for hea~~on March 14, 2014, on Defendants ~ . .
10/6/2014 11 :00:03 AM Chris Daniel - District Clerk Harris County Envelope No: 2727109 By: WILLIAMS, KA TINA L
Cause No. C-201305124
VICNRGLLC, § IN THE DISTRICT COURT OF § PLAINTIFF. § § vs. § § § HARRISCOUNTY~XAS FUEL STREAMERS INC., § ?~<@ GREEN DIESEL, LLC, § ~) . FCSTONE, LLC, § ~
·~ ~ FCSTONE TRADING, LLC AND FCSTONE GROUP, INC. ·§ o~ DEFENDANTS. § Q § 3~~ISTRICT COURT ~ -~ ORDER GRANTING FCSTONE'S UNO~~ED MOTION TO SEVER 0 cf@ . This matter comes before the Court on the!;~~pposed Motion to Sever filed by ~rv Defendants FCStone, LLC, FCStone Tradin~ ~' and FCStone Group, Inc. (together ~ "FCStone"). The Court having considered,~ pleadings and arguments of counsel, is of the . ]?Qi rr;;if::J opinion that the Motion should be ~d. 1 .
IT IS THEREFORE OR_OO~D that the claims VicNRG LLC asserted against w Defendants FCStone, LL~c:?"'fone Trading, LLC, and FCStone Group, Inc. are severed from . ~. this action and made th 0~bject of a separate action. · .o~ IT IS FU~~ ORDERED that VicNRG LLC will be the plaintiff in the severed case <td~ and FCSton~~' FCStone Trading, LLC, and FCStone Group, Inc. will be the defendants in
the new action, which is to be styled VicNRG LLC v. FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. and to have docket number C-201305124-_.
IT IS FURTHER ORDERED that the clerk make certified copies of the following documents in the instant case for the severed case:
EXHIBIT 5
Ir:> Appendix 061
Document File Date Document Description
07/03/2012 Original Petition
10/12/2012 First Amended Petition
01/28/2013 . Motion to Transfer Venue and Subject Thereto, General Denial of FCStone, LLC, and FCStone Trading, LLC ~ 01/28/2013 Plaintiffs Response to the Motions to Transfer V~~~befendants
01/28/2013 Plaintiffs Motion to Reconsider Order Transfe~~enue " (( ~
.Ol/28/2013 Defendants FCStone, LLC, and FCStone~~, LLC's Response to Plaintiffs Motion to Reconsider Order T · rring Venue £~,, 04/ 18/2013 . Notice of Change of Address (Couns~M'FCStone) . ,,J®) 0612512013 . Rule 11 Agreement re VICNRG n~ments Produced ~iftdl 09/30/2013 Rule 11 Agreement re Extenst~!of Deadline PC Stone to Respond to Discovery & FCStone's \~ction ~,::,~ 10/17/2013 R~le 11 Agreement r~nsion of Deadline VICNRG to Respond to Discovery ~~ ~ (R) 11/14/2013 Second Amend,e~etition ¢ \(' 5) 11/22/2013. Plaintiffs ~n to Quash Depositions (n 11/25/2013 Motion~Admission Pro Hae Vice of David Hoffman ~f ~ . 11/25/2013 M0f@"for Admission Pro Hae Vice of Cornelius Adrian Vandenberg ~ . - 12/04/2013 ~ation: . FCStone Group, Inc. :~ · 12/30/2013 rf,~ General Denial of FCStone, LLC, FCStone Trading, LLC, and FCStone ·()~ Group, Inc. to Plaintiffs Second Amended Petition ~ 021051~ Plaintiffs First Motion for Continuance and Plaintiffs Motion for Expedited Hearing of the Same.
02/06/2014 Rule 11 Agreement re Compliance with Protective Order
02/07/2014 FCStone's Traditional and No-Evidence Motion for Summary Judgment, Notice of Oral Hearing & Appendix of Unpublished Legal Authorities
Appendix 062 Document File Date Document Description
02/07/2014 FCStone's Motion to File Under Seal
02/10/2014 FCStone's Motion to Quash Notices of Deposition ofNathaniel Burk, Christopher Jagoda, Matthew Upmeyer, and FCStone
02/11/2014 Plaintiff's Amended Motion for Continuance and Plaintiff's Motion for
* Expedited Hearing of the Sarne r&~ 02117/2014 FCStone's Designation of Expert Witnesses a-= ""'~~· 02/18/2014 FCStone's Opposition to VICNRG's Motion;t~ntinue Hearing on Motion for Summary Judgment ~ @;) <> 02/18/2014 Rule 11 Agreement re Extension of tri~te and discovery deadlines ~·
02/2i/2014 FCStone's Traditional and No-Evicl~Motion for Summary Judgment . _{( 02/21/2014 Withdrawal of Motion to File~ Seal
02/27/2014 VICNRG's Unopposed M~ for Continuance of Trial Setting .~~ 03/07/2014 Pl~intiffVIC~RG L~'R'.esponse to FCStone's Traditional and No- Evidence Motion fo~ Ji:lmary Judgment (R'i 03/07/2014 Plaintiff's Obj~c~ns to FCStone's Summary Judgment Evidence <> le'~ 03/07/2014 VICNRG's~'tion to file Under Seal Pursuant to Protective Order (()) 03/11/2014 FCSton~efendants' Objections to VICNRG's Summary Judgment Evid~ · DO! ' 03/11/2014 R~onse to VICNRG's Objections to FCStone's Summary Judgment ~idence } 03/11/2014 1-b.~ Reply in Support of FCStone's Traditional and No-Evidence Motion for
Ak~ Summary Judgment
03/13/l@-'» FCStone Defendants' Motion to Strike VICNRG's Unauthorized Surreply
03/13/2014 Plaintiff VICNRG Surreply to Defendant FCStone's Reply to VICNRG's Response to FCStone's Traditional and No-Evidence Motion for Summary Judgment
03/18/2014 FCStone Defendants' Motion for Leave to File Additional Summary
Appendix 063 Document File Date Document Description
Judgment Evidence
03/25/2014 Rule 11 Agreement Extending Discovery
03/25/2014 VICNRG's Withdrawal of Motion to File Under Seal Pursuant to Protective 0.rder ~ 03/28/2014 Response to VICNRG's Surreply to FCStone's Tra~~al and No- Evidence Motion for Summary Judgment Q. "" ()3/28/2014 Plaintiff VICNRG LLC's Post-Hearing Brief; Ll ~~~ 04/04/2014 Pl~intiffVIC~RG LLC's Response to FG~e's Traditional and No- Evidence Motion for Summary Judgm~ ~ 06/03/2014 Notice of Oral Hearing on FCStonei~Motion for Protection and to Quash Notices of Deposition .-~ ~«©?· 06/03/2014 FCStone's Motion for Proteciibifand to Quash Notices of Deposition o~@::JJ 06/05/2014 PlaintiffVICNRG's ~e~~e to FCStone'.s.Motion for Protection and VICNRG LLC's M~~t Compel Depos1t10ns
06/17/2014 FCStone's Respon~'C VICNRG's Motion to Compel and Reply in Support of Mo~i~for Protection and to Quash ,.,o,__(JJ 06/19/2014 PlaintiffV,..~G LLC's Sur-Reply to FCStone's Motion for Protection and Repl~ Support ofVICNRG LLC's Motion to Compel Deposi~s ZC51 ~ 07/30/2014 -~~greement re extension deadlines & setting of deadlines
8/01/2014 ,der granting Summary Judgment ~ ? (~ v cp~ D~ IT IS~~~R ORDERED that this order of severance does not affect the claims of the
remaining parties to the instant case, does not cause a realignment of parties in the case, and that as a result of this order of severance, the style of the instant case shall hereafter be styled VicNRG LLC v. Green Diesel, LLC and Fuel Streamers, Inc.
Appendix 064 Signed this_ day of October, 2014.
Judge Grant Dorfman
Appendix 065
10/15/2014 10:24:47 AM Chris Daniel - District Clerk Harris County Envelope No. 2835174 By: DANIELLE JIMENEZ Filed: 10/15/2014 10:24:47 AM
Cause No. 201305124
VICNRGLLC, § IN THE DISTRICT COURT Plaintiff- § § v. § HARRIS COUNTY, TEXAS· § .. -~ GRE~N DIESEL, LLC and § FUEL STREAMERS, INC., § 334TH.nrs~ COURT Defendants ~ o~rt:J. 0: '""» . . o0 . . . PLAINTIFF'S REQUEST FOR ADDITIONAL DOC~ TO BE INCLUDED AS . . . . RECORDS IN SEVERED C~E · · . 0~~ .
. . ~ TO THE HONORABLE JUDGE OF SAID COURT:<Gl . ·. . . o~ . .
PI.futiffVicNRG LLC files this, its~· for Additional Documents to be Included as . . ~1~ . . Records in Severed Case, and in support CQJ~the same would respectfully show· the Court the
following: · -r<©> · . . .· .re~ . Defendants FCStone, L~~CStone Tradmg, LLC, and FCSt~ne · Group, Inc.
("FCStone") filed their Moti-~~ Sever on October 6, 2014. Plaintiff does not oppose the ~~ . . . ·.
motion. However, FCSto~rqroposed ·. ~'= order of severance omits several documents that VicNRG . ' . .
believes should be ~~~d as documents in the severed case. The omitted documents are: . t 081 .,(";~~
Document File %~~ Document Description . ~~ ~'> 1-28-13 Citation-FCStorie Trading, LLC (fyiage No. 54798579) 1-28-13 Citation-FCStone, LLC (Image No. 54798611) 1-28-13 Order of Transfer dated Nov. 6, 2012 2-12-14 Order Approving Stipulation (Signed Protective Order) 1-17-14 Plaintiff's Designation of Expert Witnesses
,._111e•x•H•1a•1•T--. Page 11
i // Appendix 066
3-3-14 Order Granting Trial Continuance Appendix of Unpublished Legal Authorities in Support ofVicNRG's 3-7-14 .Response Appendix of Unpublished Legal Authorities in Support ofVicNRG's · 3-13-14 Surreply Order Denying Protection from Discovery Request/Compelling 6-30-14 Deposition Appearance
a'@!~ 7-14-14 Plaintiff's Supplemental Designation of Experts 10-10-14 VicNRG's Request for Additional Documents ' ~ o~ . ~ . PRATIR o:/f!J .
WHEREFORE, Plaintiff VicNRG LLC requests that ~~urt clerk make certified copies . . . o~ . of the above do.cuments to be included with the severe~e, and that it be. granted such other
and further relief to which it may show itself to be ju§~ntitled. o~ . .
. · · . R~fully submitted, . Q ~·
Q~UMBERG &BAGLEY, L.L.P . re,~~ ./W ~~~ 'O~~ by: /sfPeter F. Bagley ~. Daniel E. Blumberg ~ Texas Bar No. 02512985 ©~ Peter F. Bagley Q Texas Bar No. 00783581 ~ · 2304 Westlnterstate.20, Ste.190 o~ Arlington, Texas 76017 ,;J-!fJ (817~ 2y1-1500 <~ Facsrrmle (817) 277-1170 ~) da.J'.1:iel(al,blurnbergbaglev.corn ~: peter@.blumbergbagley.com
and
HIERSCHE, HAYWARD, DRAKELEY & URBACH, P.C. James T. Drakeley Texas Bar No. 06111600 R. Scott Seifert Page I2
Appendix 067
Texas Bar No. 24003860 Laurie N. Arnoldy Texas Bar No. 24003860 15303 Dallas Parkway, Suite 700 Addison, Texas 75001 Tel: 972-701-7000 Fax: 972-701-8765 j drakeley@hhdulaw.com sseifert@hhdulaw.com ~· lamoldy@hhdulaw.com ?~@ l)! ATTORNEYSFORPLA~F o;/£r . ~
. . CERTIFICATE OF SERVIC~~ <>~ .
fore~o~· l .hereby certify that true copies of :iie Ja ®aintiff' sReq~est for Addito17al Documents were served on the followmg on this the 15t f October 2014 m accordance with the Texas Rules of Civil Procedure via the means indi~ elow: ·
VIA ELECTRONIC SERVICE ~~ Mr. Jam~s T. Drakeley ~,~ ~. R. Scott Seifert · {_j~ Hiersche, Hayw!'!.fd, Drake~ey & Ur~·P.C. 15303 Dallas Parkway, Smte 700 © Addison, Texas 75001 . (@ · Facsimile.(972)_ 701-8765 ~<t;; iQJ . . v Co-Counselfior Plaint1iff Vi LLC;
VIA ELECTRONIC S;i;fVICE Mr. W. Joel Bryant 1 ~ » P.O. Box 53587 (C ~ Houston, Texas 1(}52 . Facsimile (71 -7977 Counsel fo 0c i and Fuel mers, Inc.; ©) VIA~TRONIC SERVICE Mr.~k (31asser Ms. Tracy LeRoy Sidley LLP 600 Travis Street, 31st Floor Houston, Texas 77002 Facsimile (713) 315-9119 Counsel for Defendants FCStone, LLC and FCStone Trading, LLC; and
Page I3
Appendix 068
VIA ELECTRONIC SERVICE Mr. David A. Fettner Fettner Thompson, P.C. 6700 Sands Point Drive Houston, Texas 77027 Facsimile (713) 627-9989 Court-Appointed Receiver
Page I4
Appendix 069
,. ' 10/24/201412:06:05 PM Chris Daniel • District Clerk Harris County ~ Envelope No: 2946244 By: FORD, DAVIA
Cause No. C-201305124
VICNRGLLC,
PLAINTIFF. § § § IN THE DISTRICT COURT OF Ab § vs. § § § HARRIS COUNTY, TEXAS FUEL·STREAl\{ERS INC, § GREEN DIESEL, LLC, . § FCSTONE, LLC,. § FCSTONE TRADING, LLC AND § FCSTONE GROUP, INC. § § DEFENDANTS. § § 334tb DISTRICT COURT
ORDER GRANTING FCSTONE'S UNOPPOSED MOTION TO SEVER·
. ,, This matter comes before the Court on the Unopposed Motion to Sever filed by \ ... . . \ ')_.- \ . Defendants FCStone, LLC, FCStone trading, LLC, and FCStone Group, Inc. (together
"FCStone"). The Court having considered the pleadings and arguments of counsel, is of the
opinion that the Motion should be granted.
IT IS THEREFORE ORDERED that the claims VicNRG. LLC asserted against
Defendants FCStone; LLC, FCStone Trading, LLC, and FCStone Group, Inc. are severed fro~
this action and made the subject of a separate action.
IT IS FURTHER ORDERED that VicNRG LLC will be the plaintiff in the severed case
and FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. will be the defendants in
the new ·action, which is to be styled VicNRG LLC v. FCStone, LLC, FCStone Trading, LLC,
and FCStone Group, Inc. and to have docket number C-201305124&
IT IS FURTHER ORDERED that the clerk make certified copies of the following
documents in the instant case for the severed case:
5 EXHfBIT
I ti Appendix 070
~-,
Document. File Date .. Document Descripti9n . ., , , .- ,
07/03/2012 Original Petition
1011212012 First Amended Petition
01/28/2013 Citation - FCStone Trading, LLC (Image No. 54 798579)
01/28/2013 Citation - FCStone, LLC (Image No. 54798611)
01/28/2013 Motion to Transfer Venue and Subject Thereto, General Denial of FCStone, LLC, and FCStone Trading, LLC
01/28/2013 Plaintiff's Response to the Motions to Transfer Venue of Defendants
01/28/2013 Plaintiff's Motion to Reconsider Order Transferring Venue - 01/28/2013 Defendants FCStone, LLC, and FCStone Trading, LLC's Response to Plaintiff's Motion to Reconsider Order Transferring Venue
01/28/2013 Order of Transfer dated November 6, 2012
04/18/2013 Notice of Change of Address (Counsel for FCStone)
06/25/2013 Rule 11 Agreement re VICNRG Documents Produced
09/30/2013 Rule 11 Agreement re Extension of Deadline FCStone to Respond to Discovery & FCStone's Production
10/17/2013 Rule 11 Agreement re Extension of Deadline VICNRG to Respond to Discovery
11114/2013 Second Amended Petition
11/2212013 Plaintiff's Motion to Quash Depositions
11/25/2013 Motion for Admission Pro Hae Vice of David Hoffman
11/25/2013 Motion for Admission Pro Hae Vice of Cornelius Adrian Vandenberg
12/04/2013 Citation: FCStone Group, Inc.
12/30/2013 General Denial of FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. to Plaintiff's Second Amended Petition
1/17/2014 Plaintiff's Designation of Expert Witnesses
Appendix 071
02/0512014 Plaintiff's First Motion for Continuance and Plaintiffs Motion for Expedited Hearing of the Same
02/0612014 Rule 11 A~eement re Compliance with Protective Order
02/07/2014 FCStone's Traditional and No-Evidence Motion for Summary Judgment, Notice of Oral Hearing & Appendix of Unpublished Legal Authorities
02/07/2014 FCStone' s Motion to File Under Seal
02/1012014 FCStone's Motion to Quash Notices of Deposition of Nathaniel Burk, Christopher Jagoda, Matthew Upmeyer, and FCStone
0211112014 Plaintiff's Am.ended Motion for Continuance and Plaintiffs Motion for - Expedited Hearing of the Same
02/1212014 Order Approving Stipulation (signed Protective Order) 02/1712014 FCStone's Designation of Expert Witnesses
02/18/2014 FCStone's Opposition to VICNRG's Motion to Continue Hearing on Motion for Summary Judgment
02/18/2014 Rule 11 Agreement re Extension of trial date and discovery deadlines 02/21/2014 FCStone's Traditional and No-Evidence Motion for Summary Judgment 02/2112014 Withdrawal of Motion to File Under Seal-02/27/2014 VICNRG's Unopposed Motion for Continuance of Trial Setting 03/3/2014 Order Granting Trial Continuance
03/07/2014 Plaintiff VICNRG LLC's Response to FCStone's Traditional and No- Evidence Motion for Summary Judgment
Appendix 072 \.
03/07/2014 Plaintiff's Objections to FCStone's Summary Judgment Evidence
03/07/2014 VICNRG's Motion to file Under Seal Pursuant to Protective Order
03/7/2014. Appendix of Unpublished Legal Authorities in Suppo+t ofVicNRG's Response
03/11/2014 FCStone Defendants' Objections to VICNRG's Summary Judgment Evidence
03/11/2014 Response to VICNRG' s Objections to FCStone' s Summary Judgment Evidence
03/11/2014 Reply in Support of FCStone' s Traditional and No-Evidence Motion for Summary Judgment
03/13/2014 FCStone Defendants' Motion to Strike VICNRG's Unauthorized Surreply
03/13/2014 PlaintiffVICNRG Surreply to Defendant FCStone's Reply to VICNRG's Response to FCStone's Traditional and No-Evidence Motion for Summarv Judgment 03/13/2014 Appendix of Unpublished Legal Authorities in Support of VicNRG's Surreply
3/18/2014 FCStone Defendants' Motion for Leave to File Additional Summary Judgment Evidence
03/25/2014 Rule 11 Agreement Extending Discovery
03/25/2014 VicNRG's Withdrawal of Motion to File Under Seal Pursuant to Protective Order
03/28/2014 Response to VICNRG's Surreply to FCStone's Traditional and No- Evidence Motion for Summary Judgment
03/28/2014 Plaintiff VicNRG LLC' s Post-Hearing Brief
04/04/2014 PlaintiffVICNRG LLC's Response to FCStone's Traditional and No- Evidence Motion for Summary Judgment
Appendix 073
- \ ) , '
06/03/2014 FCStone' s Motion for Protection and to Quash Notices of Deposition
06/03/2014 Notice of Oral Hearing on FCStone's Motion for Protection and to Quash Notices of Deposition
06/05/2014 Plaintiff VICNRG' s Response to FCStone' s Motion for Protection and VICNRG LLC's Motion to Compel Depositions
06/17/2014 FCStone's Response to VICNRG's Motion to COmpel and Reply in Support of Motion for Protection and to Quash
06/19/2014 PlaintiffVICNRG LLC's Surreply to FCStone's Motion for Protection and Reply in Support ofVICNRG LLC's Motion to Compel Depositions
06/30/2014 Order Denying Protection from Discovery Request/Compelling Deposition Appearance
07/14/2014 Plaintiff's Supplemental Designation of Experts
07/30/2014 Rule 11 Agreement re extension deadlines & setting of deadlines
8/01/2014 Order Granting Summary Judgment
10/15/2014 VicNRG's Request for Additional Documents
IT IS FURTHER ORDERED that this order of severance does not affect the
claims of the remaining parties to the instant case, does not cause a realignment of parties in the case, and that as a result of this order of severance, the style of the instant case
shall hereafter be styled VicNRG LLC v. Green Diesel, LLC and Fuel Streamers, Inc. IL Sill)1ed thls1f day of October, 2014. I ~
">-1."-1-l ~~ 9
Appendix 074
TRANSMITIAL FORM FOR SEVERANCES
....... COMPLETE THIS FORM AND ATTACH COPY OF SEVERANCE ORDER TO THE INSIDE OF THE FILE JACKET; 0 (\J FORWARD FILE TO CIVIL INTAKE. THIS FORM MUST REMAIN WITH THE FILE UNTIL FEE ADJUSTMENT ...... "' (\J ...... HAS BEEN COMPLETED BY FEE ACCOUNTING. 0 .... Severance Cause Number: 2013-051248 Court: 3341 H Case Type: Severance i>1 IH·· ~ Original File Date: 1.28.2013 Date Severance Order Signed: 10.29.2014 ~ H
""0i>1 STYLE: VICNRG LLC VS. FCSTONE, LLC; FCSTONE TRADING, LLC; FCSTO~ROUP, INC ~ H Severance Case Status (check onel: FINAL . X PENDING.~ OTHER ""z r~ Co~Q-------- 0 u Disposal Code: - - - - - - - - - or Activity . 0 ~
Fee Code & Disposal Date: or Activit~: --------- . . o·@;2! IF ANY ORIGINAL FEES WERE TRANSFERRED TO THE SEVER~IT, .PLEASE PROVIDE RECEIPT AND TRANSACTION NUMBER(S) FRO~~RENT SUITE. ~~~- COSTS/MISCELLANEO~EES Receipt Number: _ _ __ Feeo $. . 0 ~V,ptlon: _ __ Amount: _ _ __
Transaction Number: _ __ Fee·cd o e: ·-~ .. ~~escnpt1on: _ __ Amount: _ _ __
Receipt Number: _ _ __ Fee: $ 0 S0z ~ Description: Amount: _ _ __ --~~%~ --- Transaction Number: _ __ Fee Code:@? Description: _ __ Amount: ---- rt:) COSTS.OF SUIT ASSESSED TO: ~, COSTS OF CERTIFIED COPIES ASSESSED TO:
Name: Mark Glasser ~\ 0 Amount: . N/A Address: 1000 Lou_isiana #600();~ Address: N/A Houston, tx 77002\Q'i~ #8014500 ()
Danielle N. Jimenez ?J.~ 12.2.2014 Clerk Preparing Fo~ FCN Date
·~ . . JU<l&\ L+'q· 1y ~ ~'t\tf3~ FCN . Date ·
Adjustment Clerk FCN Date
FILED Chris Daniel District Clerk
OCT 2 9 2014 Ttme:_~-=--=--:--=--~ Harris County, Texas EXHIBIT BY.~----~--~~ Deputy } SJ B /J Appendix 075
Office of Harris County District Clerk - Chris Daniel I Search Our Records Page 1 of 2 Welcome Peter Bagley powered by 'Enter keyword(~)·--- Search ·
Home j Civil ; Family ! Criminal Child Support I Online Services HR About Us j Court Registry Copies '. Jury FAQs iJff {l/VSSJ Home > Online Services > Search Our Records and Documents Houston, Texas I February 03, 2015
Quick Links Search Results View Mobile Version
Ii Costs and Fees Print Result(s) Print Result(s)
-~ Child Support Records Click on the style of the case (cause) to view detailed information for that case (cause) such as court costs, documents, case details, parties, and more. Only public cases will be shown, however no family documents will be available for review.
~ Jury Services No federal or other County's records, or Justice cif the Peace or other Municipalities Class C Misdemeanor will be searched.
Search Our Records & Click the icon for the case, to receive notifications of updates (non-family, civil cases only) ;'~·:: Documents mfi-1,x.,- Click the icon to FREEfax File a case for all Civil District courts, the 280th and 310th Family District ,,) Background Checks courts, and the 351st Criminal District court. '.m] FREEfax
• /Lt).. Total records returned from search is 3 .
e-Filing Page 1of1
Case :I Forms jCause) St-fie File Court Case Type Of Action I Date Region Government Agencies Number Offense
*' Historical Documents 201305124- 7 VICNRG LLC (A TEXAS LIMITED PLEA OF
• LIABILITY CO vs. GREEN DIESEL 112812013 334 Civil <!;.~' Ready Docket PRIVILEGE LLC (A DELAWARE LIMITED LIA How to Contact Us VICNRG LLC (A TEXAS LIMITED
~ 201305124A- 7 LIABILITY CO vs. 1/28i2013 334 Civil SEVERANCE ....,._·,-,.o;_,. District Clerk Biography Active - Civil RIVKIN, PHILIP J
Order History
".... 201305124B- 7 VICNRG LLC (A TEXAS LIMITED 112812013 334 Civil SEVERANCE Active - Civil LIABILITY CO vs. FCSTONE, LLC Update Address i
-"~ ""'C>i lniormati6n
Attorney Vacation Page 1of1 1
.... ~~ ': Search Attorney Vacati.on
:.i~ Change Password New Search Contact lnformation C1v1I Courthouse
20·1 Caroline •• Houst•on. TX 7i002 M~
Mailing Address:
Harris County District Clerk P 0. Box 4651 Houston. Tex as 77210
Search Our Records and Documents Forms Government Agencies
Fer your cor:vernence. forms are available e-Gov aHcws users ..:.uriployed t::y view detailed case (cause) infarmat1cr. indL.:ding court. costs location. dccur."!ents party 1nforr.iat1on. and rr:cre J J ,/ I fer downlcac!ing or printing. Click to tccats. 1J-.e fcrr·1s you wiH need. ii gcverrrnert -=.ger.cies to query a.rd rerr:eve documents from their cffice
EXHIBIT
l'f Appendix 076 htto://www.hcdistrictclerk.com/Edocs/Public/search.asox 2/3/2015
DOCUMENT 8
Appendix 077
14-1 o-uu Hl4-Ll FOURTEENTH COURT OF APPE HOUSTON, TEX. 3/9/2015 2:09:47 p CHRISTOPHER PF CLEF
Blumberg & Bagley, L.L.P. Attorneys 2304 West Interstate 20, Suite 190 Arlington, Texas 76017 www.blumbergbagley.com
Peter F. Bagley (817) 277-1500 Board Certified, Consumer and Commercial Law, Texas Board of Legal Specialization Facsimile (817) 277-1170 Fellow, College of the State Bar of Texas
March 9, 2015
Mr. Christopher Prine Deupty Clerk 14th Court of Appeals Harris County District Clerk 301 Fannin, Suite 245 Houston, Texas 77002
Re: VICNRG LLC v. FCStone, LLC et al.; Appeal No. 14-15-00194-CV Dear Clerk:
According to my call with your office, the above-referenced appeal has been assigned to the 14th Court of Appeals as an accelerated appeal. As counsel for Appellant VicNRG LLC, I am notifying you that I do not believe the case fits under any of the categories of accelerated appeals described by Tex. R. App. P. 28.1, and therefore I ask that the court treat this as a non-accelerated appeal.
You are advised that the parties have a disagreement about whether a final order exists in the underlying case. Appellees believe an October 2014 order of severance serves as a final judgment; we argue that the trial court must still sign a final judgment for the reasons indicated in our Motion for Entry of Final Judgment. The trial court has not ruled on the motion, but we filed a Conditional Notice of Appeal because we felt that if Tex. R. Civ. P. 306a applied, we had to file the notice of appeal by February 20, 2015. It is my understanding that a notice of appeal invokes the appellate court's jurisdiction regardless of how the notice of appeal is described. Tex. R. App. P. 25.1.
When I spoke to your office, I was advised that I had to speak to the trial court about the characterization of this appeal. Today I spoke to Phyllis Washington, the court's senior civil post-judgment/appeals clerk, with Danielle Jimenez, the court clerk, on the call. Ms. Washington advised me that this case remains an active case on the trial court's docket and that she can only show the appeal as an accelerated appeal because there is no final order in the case. Again, I do not believe rule 28.1 applies, and therefore I do not believe the deadlines associated with accelerated appeals apply. Please let me know if this case remains an accelerated case or ifl must file a motion to recast the appeal.
Appendix 078
Yours sincerely,
Isl Peter F. Bagley Peter F. Bagley PFBldsa
cc: VICNRG LLC
cc: VIA ELECTRONIC SERVICE Mr. James T. Drakeley Mr. R. Scott Seifert Hiersche, Hayward, Drakeley & Urbach, P.C. 15303 Dallas Parkway, Suite 700 Addison, Texas 75001 Co-Counsel for Ptaintiff VicNRG LLC;
cc: VIA ELECTRONIC SERVICE Mr. Mark K. Glasser Ms. Tracy LeRoy Sidley LLP 1000 Lousiana, Ste. 6000 Houston, Texas 77002 Counsel for Defendants FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc.
Appendix 079
DOCUMENT9
Appendix 080
14-1 o-uu 1 84-L; FOURTEENTH COURT OF APPE HOUSTON, TEX, 3/12/2015 4:08:35 p CHRISTOPHER PF CLEF
CAUSE NO. 14-15-00194-CV
§ IN THE 14th COURT OF APPEALS VICNRGLLC, § Plaintiff § § v. § § FCSTONE, LLC, FCSTONE TRADING, § LLC and FCSTONE GROUP, INC., § HOUSTON, TEXAS Defendants
APPELLANT'S MOTION TO ENLARGE DEADLINES
Appellant VicNRG LLC asks the Court to enlarge the present deadlines in this case.
1. Appellant VicNRG filed a "Conditional Notice of Appeal" in the trial court on February 20, 2015. The underlying case is designated Cause No. 2013-05124B.
2. Upon information and belief, the post-judgment clerk of the 334th District Court of Harris County apparently designated the case as an interlocutory appeal that activated the deadlines for accelerated appeals under Texas Rule of Appellate Procedure 28.1. According to notices that the undersigned counsel recently received from the Court, the reporter's record is due on today's date and the clerk's record is due on March 16, 2015.
3. · The Court is advised that the trial court only recently signed a final judgment in the underlying cause on March 10, 2015. See Exhibit I attached. (Though the judgment uses the wrong name of the defendant in the case style, it. is clear that the judgment pertains to the Appellees of the instant severed case, FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc.) Accordingly, Appellant asks that the deadlines run from the date of the final judgment pursuant to Texas Rule of Appellate Procedure 35.1. Jd.
4. The Court is also advised that the reporter has indicated that the reporter's record is APPELLANT'S MOTION TO ENLARGE DEADLINES Page I I
Appendix 081 completed and will be filed soon. The post-judgment clerk is still working on the clerk's record. In the meantime, the trial court's post-judgment clerk has advised me that she will be sending a communique with the Court advising it of the existence of the final judgment and to modify this appeal to a non-accelerated appeal.
5. The Court has the authority under Texas Rule of Appellate Procedure 10 and 38.6(d)to enlarge the filing deadlines.
Respectfully submitted,
BLUMBERG & BAGLEY, L.L.P.
by: ls/Peter F. Bagley Peter F. Bagley Texas Bar No. 00783581 2304 W. Interstate 20, Suite 190 Arlington, Texas 76017 (817) 277-1500 Facsimile: (817) 277-1170 peter@blumbergbagley.com ATTORNEYS FOR APPELLANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Appellant's Motion to Enlarge Deadlines was served upon the following on this, the 12th day of March, 2015 in accordance with the Texas Rules of Appellate Procedure.
VIA ELECTRONIC SERVICE Mr. James T. Drakeley Mr. R. Scott Seifert Hiersche, Hayward, Drakeley & Urbach, P .C. 15303 Dallas Parkway, Suite 700 Addison, Texas 75001 Co-Counsel for Plaintiff VicNRG LLC;
VIA ELECTRONIC SERVICE Mr. Mark K. Glasser APPELLANT'S MOTION TO ENLARGE DEADLINES Page I 2
Appendix 082
Ms. Tracy LeRoy Sidley LLP 1000 Lousiana, Ste. 6000 Houston, Texas 77002 Counsel for Defendants FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc.
s/ Peter F. Bagley Peter F. Bagley
APPELLANT'S MOTION TO ENLARGE DEADLINES Page [ 3
Appendix 083
Cause No. 2013-05124-B
VICNRGLLC § IN THE DISTRICT COURT § v. § OF HARRIS COUNTY, TEXAS § GREEN DI-ESEL, LLC, et al. § 334TH JUDICIAL.DISTRICT
FINAL JUDGMENT IN SEVERED CAUSE * ~ ON THIS DAY the Court considered the Motion for Entry ~ 041 Judgment in this
severed cause, 2013-05124-B, filed by plaintiffVicNRG LLC ("Vir"). Upon consideration
of the motion and the response thereto of defendants FCStone,~FCStone Trading, LLC, and FCStone Group, Inc. (togethe~ "FCStone"), the Court is o,f~ opinion that the motion is well- ~ taken and should be GRANTED. Accordingly, it is h J ' . <Q> ORDERED, ADJUDGED and DEC? that FCStone's Traditional and No-
Evidence Motion for Summary Judgment is ~y GRANTED (as previously ordered, on an interlocutory basis, by Order dated August &014). It is, further,
ORDERED, ADJUDGED ~~~ECREED that VicNRG shall take nothing ~nits U, further, causes of action against FCStone.
ORDERED, AD~ and DECREED that FCStone be awarded all costs of court
related to its defense her~ is, further, ORDERED,-, :cfU ~JUDGED and DECREED that this action be, and hereby is,
DISMISSED ~PREJUDICE. This is a Final Judgment that disposes of all claims and parties in thi~ered cause of action. SIGNED this. f 0""' dayof __d_'M_d~,C..------2015.
FILED Chris Oanlel District Cferk - MAR 1O2015 EXHIBIT nme:. BY, H•rrf• County, ntxu Deputy I I Appendix 084
DOCUMENT 10
Appendix 085
3/12/2015 8:54:26 AM Chris Daniel - District Clerk Harris County Envelope No. 4467911 By: Phyllis Washington Cause No. 201305124B Filed: 3/12/2015 8:54:26 AM
VICNRGLLC, § IN THE DISTRICT COURT Plaintiff § § v. § HARRIS COUNTY, TEXAS § FCSTONE, LLC, FCSTONE TRADING, § LLC and FCSTONE GROUP, INC., § Defendants § § 334TH DISTRICT COURT
AMENDED NOTICE OF APPEAL
Pursuant to rule 25.l of the Texas Rules of Appellate Procedure, Plaintiff VicNRG LLC will appeal, and gives notice of its appeal, from the final judgment signed on March 10, 2015 in VICNRG LLC v. FCStone, LLC, FCStone Trading, LLC and FCStone Group, Inc. in the 334th District Court of Harris County, Texas, to the Fourteenth Court of Appeals, Houston, Texas.
Respectfully submitted,
BLUMBERG & BAGLEY, L.L.P.
by: Isl Peter F. Bagley Peter F. Bagley Texas Bar No. 00783581 2304 West Interstate 20 Suite 190 Arlington~ Texas 7601 7 (817) 277-1500 Facsimile (817) 277-1170
ATTORNEYS FOR PLAINTIFF
NOTICE OF APPEAL Page 1J
Appendix 086
CERTIFICATE OF SERVICE
By my signature below, I hereby.certi~ that true copie~ of the above and ~oregoin~ Notice of Appeal were forwarded to the followmg via the means mdicated below on this the 12 day of · March, 2015:
VIA ELECTRONIC SERVICE Mr. James T. Drakeley Mr. R. Scott Seifert Hiersche, Hayward, Drakeley & Urbach, P.C. 15303 Dallas Parkway, Suite 700 Addison, Texas 75001 Co-Counsel for Plaintiff VicNRG LLC;
VIA ELECTRONIC SERVICE.. Mr. Mark K. Glasser Ms. Tracy LeRoy Sidley LLP 1000 Lousiana, Ste. 6000 Houston, Texas 77002 Counsel for Defendants FCStone,. LLC, FCStone Trading, LLC, and FCStone Group, Inc.
s/ Peter F. Bagley Peter F. Bagley
NOTICE OF APPEAL Page 12 Appendix 087
Footnotes
[4] . Appendix 059 FCStone, LLC, FCStone Trading, LLC, andf:Qone Group, Inc.'s (together "FCStone") <& Traditional ~nd No-Evidence Motion fo.r ~mmary Judgment. The Court, having considered Defendant's Motion, Plaintiffs . Re*~ ()l') the various replies, surreplies, and objections to evidence, and argument by cou~"GRANTED PC Stone's Traditional and No-Evidence Motion for Summary Judgment by~gust I, 2014 Order. Th.e Court granted FCStone's Unopposed Motion to Sever on Os:~r __, 2014. The Court FURTHER ORDERS that this action be =~ DISMISSED WI~JUDICE. This Judgment is final and disposes of all claims and parties. ~) ~~· Signed this_ day of October, 2014. Judge Grant Dorfman
[10] EXHIBIT Appendix 060