Case Information
*0 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 3/24/2015 11:46:32 AM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 14-15-00194-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 3/24/2015 11:46:32 AM CHRISTOPHER PRINE CLERK No. 14-15-00194-CV ________________________________ IN THE COURT OF APPEALS FOR THE FOURTEENTH JUDICIAL DISTRICT OF TEXAS ________________________________ VICNRG LLC, Appellants, v.
FCSTONE, LLC, FCSTONE TRADING, LLC and FCSTONE GROUP, INC., Appellees.
________________________________ APPELLEES’ RESPONSE TO APPELLANT’S UNOPPOSED MOTION TO
ENLARGE PERIOD DURING WHICH IT MIGHT REPSOND TO
APPELLEES’ MOTOIN TO DISMISS FOR LACK OF JURISDICTION
________________________________ On Appeal from the 334th District Court Harris County, Texas Cause No. 2013-05124B Hon. Grant Dorfman, Presiding ________________________________ Mark K. Glasser David Hoffman (admitted pro hac vice)
Texas Bar No. 08014500 Illinois State Bar No. 6229441
Tracy N. LeRoy Kees Vandenberg (admitted pro hac vice)
Texas Bar No. 24062847 Illinois State Bar No. 6301079
Sidley Austin LLP Sidley Austin LLP
1000 Louisiana, Suite 6000 One South Dearborn
Houston, Texas 77002 Chicago, Illinois 60606
Telephone: 713-495-4500 Telephone: 312- 853-7000
Facsimile: 713-495-7799 Facsimile: 312-853-7036
Attorneys for Appellees-Defendants FCStone, LLC, FCStone Trading, LLC and FCStone Group, Inc.
Appellees FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc.
(“FCStone”) respectfully respond to Appellant VicNRG, LLC’s (“Appellant’s”)
Unopposed Motion to Enlarge Period During Which it Might Respond to
Appellees’ Motion to Dismiss for Lack of Jurisdiction to correct VicNRG’s
mischaracterizations of the procedural posture of this case. While FCStone does
not object to VicNRG’s request for additional time to respond to FCStone’s
Motion to Dismiss (although FCStone notes that VicNRG appears to have been
able to substantively respond to the Motion to Dismiss in its Motion to Enlarge),
FCStone does object to VicNRG’s mischaracterizations of FCStone’s Motion and
the trial court record.
First, FCStone’s Motion to Dismiss for Lack of Jurisdiction was not filed in
“respon[se]” to the Court’s order granting VicNRG’s request that this appeal not
be treated as an accelerated appeal, as stated in VicNRG’s Motion to Enlarge (para.
4). FCStone’s Motion is premised on the fact that VicNRG did not timely file its
notice of appeal from judgment, not this Court’s order granting VicNRG’s request.
Second, VicNRG mischaracterizes the procedural history of this case. The
trial court signed a summary judgment order in favor of FCStone on August 1,
2014; VicNRG’s insistence that there is only a “proposed order” in the record is
simply baffling (para. 4). Likewise, FCStone did not submit a proposed judgment
to the trial court after the motion for severance was granted and the severance
order signed, as stated by VicNRG ( id .). FCStone had, in the abundance of
caution, submitted both a proposed severance order and a proposed judgment with
its motion to sever on the assumption that the trial court would enter them the same
day. As discussed in FCStone’s Motion to Dismiss, when the trial court signed the
severance order, the summary judgment became final and appealable, and entry of
a later judgment would violate the final judgment rule.
Third, and finally, VicNRG’s contention that FCStone has “had months” to
prepare FCStone’s “lengthy” Motion to Dismiss is flatly wrong. VicNRG filed its
first, “conditional” notice of appeal in this Court on February 20, and its second
amended notice of appeal on March 12. FCStone filed its 12-page Motion to
Dismiss six days later, less than one month after VicNRG first appealed. VicNRG
offers no basis for its claim that FCStone should have filed a Motion to Dismiss
prior to VicNRG even filing its untimely appeal.
In sum, while FCStone has no objection to enlarging VicNRG’s time to
respond to its Motion to Dismiss, FCStone does object to VicNRG’s use of its
Unopposed Motion to Enlarge to misstate the record.
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) mglasser@sidley.com tleroy@sidley.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 (312) 853-7000 (telephone) (312) 853-7036 (facsimile) david.hoffman@sidley.com c.vandenberg@sidley.com COUNSEL FOR DEFENDANTS FCSTONE, LLC, FCSTONE TRADING, LLC, and FCSTONE GROUP, INC.
CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing documents was
forwarded to all counsel of record on the 24th day of March, 2015, 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
James T. Drakeley
R. Scott Seifert
Hiersche, Hayward, Drakeley & Urbach, P.C.
15303 Dallas Parkway, Suite 700
Addison, Texas 75001
By: /s/ Tracy N. LeRoy