NO. 14-15-00194-CV 

IN THE COURT OF APPEALS FOR THE FOURTEENTH JUDICIAL 

DISTRICT OF TEXAS

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

1 

ACCEPTED

14-15-00194-CV

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

4/16/2015 10:04:18 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 4/16/2015 10:04:18 AM CHRISTOPHER A. PRINE Clerk
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). 

2

 
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). 

3
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

4
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 

5
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 

6
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 

7
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 

8
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. 

9

 
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.

10
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. 

11
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. 

12
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 

13
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 

14
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). 

15

 
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

16
(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

17
VICNRGLLC, 

Appellant 

v. 

No. 14-15-00194-CV 

§ 

§ 

§ 

§ 

§ 

IN THE COUIRT OF APPEALS 

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 

Document No. Appendix Document Page No. 

1 3 Declaration of Peter Bagley 

2 5 Order for Interlocutory Summary Judgment 

3 7-16 FCStone's Motion to Sever with Proposed 

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, 

Appellant 

§ 

§ 

§ 

§ 

§ 

IN THE COUIRT OF APPEALS 

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
._ 

-

0 

217/2014 3:35:34 PM 

Chris Daniel • District Clerk 

Harris County · 

Envelope No: 415458 

By: JIMENEZ, DANIELLE N 

CAUSE NO. ~! !JOI !64t 

VICNRGLLC, 

PLAINTIFF 

VS 

FUEL STREAMERS INC., 

GREEN DIESEL, LLC, 

FCSTONE, LLC, 

FCSTONE TRADING, LLC AND 

FCSTONE GROUP, INC, 

DEFENDANTS. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

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. 

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, 

PLAINTIFF. 

vs. 

FUEL STREAMERS INC., 

GREEN DIESEL, LLC, 

FCSTONE, LLC, 

FCSTONE TRADING, LLC AND 

FCSTONE GROUP, INC. 

DEFENDANTS. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

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 Vic NRG 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 

2 

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 Vic NRG does not oppose this Motion. 

By:/s/ Tracy N. LeRoy 

3 

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 

4 

Appendix 010
Cause No. C-201305124 

VICNRGLLC, 

PLAINTIFF. 

vs. 

FUEL STREAMERS INC., 

GREEN DIESEL, LLC, 

FCSTONE, LLC, · 

FCSTONE TRADING, LLC AND 

FCSTONE GROUP, INC. 

DEFENDANTS. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

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: 

5 

Appendix 011
-Document File Date·.· 

07/03/2012 

10/12/2012 

01/28/2013 

01/28/2013 

01/28/2013 

01/28/2013 

04/18/2013 

06/25/2013 

09/30/2013 

10/17/2013 

l I/14/2013 

11/22/2013 

11/25/2013 

11/25/2013 

12/04/2013 . 

12/30/2013 

02/05/2014 

02/06/2014 

02/07/2014 

Original Petition 

First Amended Petition 

Motion to Transfer Venue and Subject Thereto, General Denial of 

FCStone, LLC, and FCStone Trading, LLC 

Plaintiffs Response to the Motions to Transfer Venue of Defendants 

Plaintit'rs Motion to Reconsider Order Transferring Venue 

Defendants FCStone, LLC, and FCStone Trading, LLC's Response to 

Plaintiffs Motion to Reconsider Order Transferring Venue 

Notice of Change of Address (Counsel for FCStone) 

Rule 11 Agreement re VICNRG Documents Produced 

Rule 11 Agreement re Extension of Deadline FCStone to Respond to 

Discovery & FCStone's Production 

Rule 11 Agreement re Extension of Deadline VICNRG to Respond to 

Discovery 

Second Amended Petition 

Plaintiffs Motion to Quash Depositions 

Motion for Admission Pro Hae Vice of David Hoffman 

Motion for Admission Pro Hae Vice of Cornelius Adrian Vandenberg 

Citation: FCStone Group, Inc. 

General Denial of FCStone, LLC, FCStone Trading, LLC, and FCStone 

Group, Inc. to Plaintiffs Second Amended Petition 

Plaintiffs First Motion for Continuance and Plaintiffs Motion for 

Expedited Hearing of the Same 

Rule 11 Agreement re Compliance with Protective Order 

FCStone's Traditional and No-Evidence Motion for Summary 

Judgment, Notice of Oral Hearing & Appendix of Unpublished Legal 

Authorities 

6 

Appendix 012
02/07/2014 

02/10/2014 

02/11/2014 

02/17/2014 

02/J 8/2014 

02/18/2014 

02/21/2014 

02/21/2014 

02/27/2014 

03/07/2014 

03/07/2014 

03/07/2014 

03/11/2014 

03111/2014 

03/\ 1/2014 

03/13/2014 

03/13/2014 

03/18/2014 

FCStone's Motion to File Under Seal 

FCStone's Motion to Quash Notices of Deposition of Nathaniel Burk, 

Christopher Jagoda, Matthew Upmeyer, and FCStone 

Plaintiff's Amended Motion for Continuance and Plaintiffs Motion for 

Expedited Hearing of the Same 

FCStone's Designation of Expert Witnesses 

FCStone's Opposition to VICNRG's Motion to Continue Hearing on 

'Motion for Summary Judgment 

Rule 11 Agreement re Extension of trial date and discovery deadlines 

FCStone's Traditional and No-Evidence Motion for Summary Judgment 

Withdrawal of Motion to File Under Seal 

VICNRG's Unopposed Motion for Continuance of Trial Setting 

PlaintiffVICNRG LLC's Response to FCStone's Traditional and NoEvidence Motion for Summary Judgment 

Plaintiffs Objections to FCStone's Summary Judgment Evidence 

VICNRG's Motion to file Under Seal Pursuant to Protective Order 

FCStone Defendants' Objections to VICNRG's Summary Judgment 

Evidence 

Response to VICNRG's Objections to FCStone's Summary Judgment 

Evidence 

Reply in Support of FCStone's Traditional and No-Evidence Motion for 

Summary Judgment 

FCStone Defendants' Motion to Strike VICNRG's Unauthorized 

Surreply 

PlaintiffVICNRG Surreply to Defendant FCStone's Reply to 

VICNRG's Response to FCStone's Traditional and No-Evidence 

Motion for Summary Judgment 

FCStone Defendants' Motion for Leave to File Additional Summary 

7 

Appendix 013
:~:\~~? .. ~.·u.;:·.1n .. :, •· .. ... '· ..e.:.:. ~.; ..•. ,t· ~i!ll!e. '.n., 1 .•. •.:~te.(f~· · . ::·:·::!.·~:·· 

.............................. ·.···:.·.··:···.:·.-:-.·.::: .. ::-:······. 

03/25/2014 

03/25/2014 

03/28/2014 

03/28/2014 

04/04/2014 

06/03/2014 

06/03/2014 

06/05/2014 

06117/2014 

06/19/2014 

07/30/2014 

8/0l/2014 

Judgment Evidence 

Rule 1 I Agreement Extending Discovery 

VICNRG's Withdrawal of Motion to File Under Seal Pursuant to 

Protective Order 

Response to VlCNRG's Surreply to FCStone's Traditional and NoEvidence Motion for Summary Judgment 

PlaintiffVICNRG LLC's Post~Hearing Brief 

Plaintiff VICNRG LLC's Response to FCStone's Traditional and NoEvidence Motion for Summary Judgment 

Notice of Oral Hearing on FCStone's Motion for Protection and to 

Quash Notices of Deposition 

FCStone's Motion for Protec.tion and to Quash Notices of Deposition 

Plaintiff VICNRG's Response to FCStone's Motion for Protection and 

VICNRG LLC's Motion to Compel Depositions 

FCStone's Response to VICNRG's Motion to Compel and Reply in 

Support of Motion for Protection and to Quash 

PlaintiffVICNRG LLC's Sur-Reply to FCStone's Motion for Protection 

and Reply in Support ofVICNRG LLC's Motion to Compel 

Depositions_ 

Rule l l Agreement re extension deadlines & setting of deadlines 

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. 

8 

Appendix 014
Signed this_ day of October, 2014. 

Judge Grant Dorfman 

9 

Appendix 015
Cause No. C-201305124-_ 

VICNRGLLC, 

PLAINTIFF. 

vs. 

FCSTONE, LLC, 

FCSTONE TRADING, LLC AND 

FCSTONE GROUP, INC. 

DEFENDANTS. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

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 

10 

Appendix 016
DOCUMENT4 

Appendix 017
10/24/201412:06:05 PM 

Chris Dante! • District Clerk 

Envelope No: 2946244 Harris County ~ 

By: FORD, DAVIA · · 

Cause No. C-201305124 

VICNRGLLC, 

PLAINTIFF. 

vs. 

FUEL STREAMERS INC., 

GREEN DIESEL, LLC, 

FCSTONE, LLC, 

FCSTONE TRADING, LLC AND 

FCSTONE GROUP, INC. 

DEFENDANTS. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

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: 

5 

Ab 

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 

6 

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 FCStone1

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 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 NoEvidence Motion for Summary Judgment 

7 

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 Def end 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 

8 

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· 

9 

Appendix 022
DOCUMENT 5 

Appendix 023
Cause No. 201305124B 

2/20/201512:46:16 PM 

Chris Daniel - District Clerk Harris County 

Envelope No. 4228668 

By: Phyllis Washington 

Filed: 2/20/2015 12:46:16 PM 

VICNRGLLC, 

Plaintiff 

v. 

FCSTONE, LLC, FCSTONE TRADING, 

LLC and FCSTONE GROUP, INC., 

Defendants 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§• 

§ 

IN THE DISTRICT COURT 

HARRIS COUNTY, TEXAS 

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. 

NOTICE OF APPEAL 

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 

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 if * ON THIS DAY the Court considered the Motion for Entry 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 welltaken and should be GRANTED. . Accordingly, it is h~ Q 

ORDERED, ADJUDGED and DEC? that FCStone's Traditional and NoEvidence 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 

causes of action against FCStone. U, further, 

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 O 2015 

nme:.. 

-iAr.1i7irrri.'a Eco::::u':intr,=',":;:::re~xu~-

BY. ___ n:::=.::::---

Deputy 

Appendix 027
DOCUMENT7 

Appendix 028
VICNRGLLC, 

Plaintiff 

v. 

FCSTONE, LLC, 

FCSTONE TRADING, LLC and 

FCSTONE GROUP, INC., 

Defendants 

Cause No. 201305124-B 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

2/4/201511:10:05AM 

Chris Daniel - District Clerk Harris County 

Envelope No. 4015284 

By: DANIELLE JIMENEZ 

Filed: 2/4/201511:10:05AM 

IN THE DISTRICT COURT 

HARRIS COUNTY, TEXAS 

334TH DISTRICT COURT 

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 I 1 

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 I 2 

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 I 3 

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 I 4 

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 I 5 

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 I 6 

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 I 7 

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 I 8 

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 I 9 

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 

v .. 

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 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

·.::;: I 

·>-

-';:) 

. c334TH 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
VICNRGLLC, 

Plaintiff 

v. 

GREEN DIESEL, LLC, 

Cause No. C-201305124 

·PHILIP J. RIVKIN, 

FUELSTREAMERS GROUP, 

FUEL STREAMERS, INC., 

GREEN DIESEL, LLC, 

GREENDIESEL TRADING S.A., 

PETRO-ETHANOL LLC, 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

HARRIS COUNTY, TEXAS 

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 I 2 

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, 

PLAINTIFF 

vs 

FUEL STREAMERS INC., 

GREEN DIESEL, LLC, 

FCSTONE, LLC, 

FCSTONE TRADING, LLC AND 

FCSTONE GROUP, INC, 

DEFENDANTS. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

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. 

DA! 804048v l 

EXHIBIT 

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 

Severance Case Status (check one) 

Disposal Code 

ENERGY LLC 

FINAL 

~®f ?~ ~) 

X PENDOO:ci o~"" 

or Act1v1ty ~~ 

OTHER 

. .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!\ ~ 

Receipt Number 

Transaction Number 

Receipt Number. ___ _ 

Transaction Number 

COSTS/MISCEL~~fJUS FEES •. _ '~~~ , ~ .~ ~ .... ~ .. -~~ ~ ~;,.v• 

Fee· $ (j~l?J'escnpt1on ~~~ ~ ~ ~·~ 

"-.J/ Q ~.AA 

Fee Code 

~ 

~ ~ Description Amount ~ f' ~ 

~ 

Fee· $ '~ Description Amount 

0 Fee[~--­ ,n~ 

~· 

Description· __ _ 

COSTS OF SUIT ASSESSED TO: ~ 

~i) 

COSTS OF CERTIFIED COPIES ASSESSED TO: 

Name Daniel Blumberg rF ~ Address 1119 West Ran ofMfll Road #101 

Arlin on TX 7 2 

#02512985 .ry ~~ ~ 

Danielle N. Jimene~ · 

Clerk Prepann~~ 

~ 

Assessment Clerk 

Adjustment Clerk 

Amount N/A 

Address N/A 

JUHK7 

FCN 

FCN 

FCN 

4.3.2014 

Date 

Date 

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) 

(,J Fg ~ "::::::, 

<:~ 

# 

~) 

~ 

GRANT DORFMAN 

Judge, 334TH DISTRICT COURT 

CASE - 201305124A FILED - 20130128 COURT - 334th 

TYPE - DAMAGES (OTH) 

VICNRG LLC (A TEXAS VS GREEN DIESEL LLC (A 

DANIEL EDWARD BLUMBERG 

2304 WEST INTERSTATE 20, SUITE 190 

ARLINGTON, TX 76017 

2512985 

.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, 

Plaintiff 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT 

V. 

* r(l)~ p~~ u) 

PHILIP J. RIVKIN, 

FUELSTREAMERS GROUP, 

GREENDIESEL TRADING S.A., 

PETROE'I'HANOL LLC, HA RRT~UNTY, TEXAS ---y PETRO CONSTRUCTORS PVf, LTD., 

PETRO CONSTRUCTORS LLC, 

STERLING ENERGY LLC, 

Defendants 

¢, 

Q ¢~ . 

.... §!!J 334TH DISTRICT COURT 

~i!(Qj 

¢ <?@ 

PLAINTIFF'S 4oN TO RETAlN 

1' / 

(Q; 

TO THE HONORABLE JUDGE OF.~D COURT: 

. . ~v, 

Plaintiff VicNRG LLC 0~RG) files this, its Motion to Retain, and in support of \.~fl 

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 

EXHIBIT Page I 1 

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@@~ other entities that are affiliated . . Q 

\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~ 

h . <~ . . I . 1 -1 l 1· . t ese parties. ~ a case m pomt, t 1e recetver recent y h ec an App 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 I 2 

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-ba0 1ev.com 

~ 

~(J '('\)~ ~I 

. ®> <t~ 

Q -~ 

·c\ 1M u"d' ~~, 

o~ e.'0_<tJ r'O.~ 

~ ~~ 

Page I 3 

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 \ 

&~ \, GJ0Y 

i ~ff- -~ ALISOH M \:~~ / otary Pub hem .j . and . tor or th ~ 

J~~*) Hor~YP srAIEOF~ State of Texas 

) ~_§; 12 l!l>'lflnr 

'N.--;-,.,.,,. -20 "1 6 

tJ ~~ o~ ,e.<::--.~ <().~ 

~ 

~~ 

Page I 4 

Appendix 054
VICNRGLLC; 

Plaintiff 

v. 

PHILlP J.RIVKIN, 

FUELSTREAMERS GROUP, 

GREENDIESEL TRADING S.A., 

PETROETHANOL LLC, 

Cause No. 201305124A 

PETRO CONSTRUCTORS PVT, LTD., 

PETRO CONSTRUCTORS LLC, 

STERLING ENERGY LLC, 

Defendants 

7/18/2014 2:16:58 PM 

Chris Daniel - District Clerk 

Harris County 

Envelope No: 1874335 

By: JIMENEZ, DANIELLE N 

IN THE DISTRICT COURT 

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. After due consideration, the Court finds that 

0 

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()) \ 

~ ~ /J ~ JUDGEP{d!1 n-6/U~ 

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, 

PLAINTIFF. 

vs. 

FUEL STREAMERS INC., 

GREEN DIESEL, LLC; 

FCSTONE, LLC, 

FCSTONE TRADING, .LLC AND 

FCSTONE GROUP, INC. 

· DEFENDANTS. 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

§ 

§ 

§ HARRISCOUNTY~XAS § ~<© § . ~~ 

§ ~ 

§ o~ 

§ '~ § ofJ:,c:!J 

§ ~ § 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 

j ' 

Appendix 056
(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 t~Y r.;).~'0 

David Hoffman (admitted pro hac vice) 

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 

2 

Appendix 057
COUNSEL FOR DEFENDANTS FCSTONE, LLC, 

FCSTONE TRADING, LLC, and FCSTONE GROUP, 

INC. 

CERTIFICATE OF CONFERENCE * 

I certify that the undersigned counsel. contacted Peter Bagley, couns~iV"icNRG 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~ 

,<)~ 

~ 

~ ~ 

3 

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 61

h 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 

fjf <* ·(] 

~ # ¢~ 

~ ¢~ 

-~ Qqpj 

Fettner Thompson 

6700 Sands Point Dr. )~ fF Houston, Texas 77074 

Tel: (713) 626-7277 

Fax: (888) 876-2292 

~~ 

©~ (®:i 

James T. Drakeley £,# 

R. Scott Seifert ~~ 

Hiersche, Hayward, Drakeley &.~ch, P.C. 

15303 Dallas Parkway, Suite 70~ 

Addison, Texas 75001 ~ u© 

Ashish Mahendru ~ 1-l. 

Mahendru P.C. 0 {!$} 

111 Bagby, Suite 22~ 

Houston, Texas 77/!ff} 

~) 

~~· 

4 . 

By:/s/ Mark K. Glasser 

Appendix 059
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, 

PLAINTIFF. 

vs. 

FCSTONE, LLC, 

FCSTONE TRADING, LLC AND 

FCSTONE GROUP, INC. 

DEFENDANTS. 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

§ 

§ HARRISCOUNTY~XAS 

§ p~r@ § u) 

§ ~ 

§ o~ 

§ 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 ~ . . 

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*~ the various replies, surreplies, and objections to . ()l') 

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
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, 

PLAINTIFF. 

vs. 

FUEL STREAMERS INC., 

GREEN DIESEL, LLC, 

. FCSTONE, LLC, 

FCSTONE TRADING, LLC AND 

FCSTONE GROUP, INC. 

DEFENDANTS. 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

§ 

§ HARRISCOUNTY~XAS 

§ ?~<@ § ~) 

§ ~ 

·~ ·§ o~ ~ § 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. . 

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 ~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: 

5 EXHIBIT 

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 

6 

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 NoEvidence 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 

~ Summary Judgment Ak 

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 

7 

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 NoEvidence 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 NoEvidence 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. 

8 

Appendix 064
Signed this_ day of October, 2014. 

Judge Grant Dorfman 

9 

Appendix 065
VICNRGLLC, 

Plaintiffv. 

Cause No. 201305124 

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 

IN THE DISTRICT COURT 

HARRIS COUNTY, TEXAS· 

GRE~N DIESEL, LLC and 

FUEL STREAMERS, INC., 

Defendants 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

.. -~ 

334TH.nrs~ COURT 

~ o~rt:J. 0: '""» 

. . o0 . . . PLAINTIFF'S REQUEST FOR ADDITIONAL DOC~ TO BE INCLUDED AS 

. . . RECORDS IN SEVERED C~E · · . . ~~ . 

. . ~ 

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 

3-7-14 Appendix of Unpublished Legal Authorities in Support ofVicNRG's 

.Response 

3-13-14 Appendix of Unpublished Legal Authorities in Support ofVicNRG's · 

Surreply 

6-30-14 Order Denying Protection from Discovery Request/Compelling 

Deposition Appearance 

7-14-14 Plaintiff's Supplemental Designation of Experts !~ 10-10-14 VicNRG's Request for Additional Documents a'@ 

' 

~ 

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 . 

. /W re,~~ 

~~~ 

'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 I 2 

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~~ . 

l . hereby certify that true copies of :iie fore~o~· Ja ®aintiff' s Req~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 

Co-Counselfior Plaint1iff Vi LLC; . . v 

VIA ELECTRONIC S;i;fVICE 

Mr. W. Joel Bryant ~ » 

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 I 3 

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 I 4 

Appendix 069
,. ' 

10/24/201412:06:05 PM 

Chris Daniel • District Clerk 

Harris 

Envelope County No: 2946244 ~ 

By: FORD, DAVIA 

Cause No. C-201305124 

VICNRGLLC, 

PLAINTIFF. 

vs. 

FUEL·STREAl\{ERS INC, 

GREEN DIESEL, LLC, . 

FCSTONE, LLC,. 

FCSTONE TRADING, LLC AND 

FCSTONE GROUP, INC. 

DEFENDANTS. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

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 

Ab 

EXHfBIT 

I 

Appendix 

ti 

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 

6 

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 Seal02/27/2014 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 NoEvidence Motion for Summary Judgment 

7 

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 

8 

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
... 

.... 

0 

(\J 

...... 

"' (\J 

...... 

0 

.... 

i>1 

IH·· 

~ 

~ H 

"" 0 

i>1 

~ H 

"" z 

0 

u 

TRANSMITIAL 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: 2013-051248 Court: 3341

H Case Type: Severance 

Original File Date: 1.28.2013 Date Severance Order Signed: 10.29.2014 

STYLE: VICNRG LLC VS. FCSTONE, LLC; FCSTONE TRADING, LLC; FCSTO~ROUP, INC 

Severance Case Status (check onel: FINAL . X PENDING.~ OTHER 

r~ 

Disposal Code: --------- . or Activity Co~Q-------- 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 

Feeo $. . 

0 

~V,ptlon: __ _ 

F ·cd ·-~ .. ee o e: ~ ~escnpt1on: __ _ 

0 

Fee: $ S0z ~ Description: --~~%~ ---

Fee Code:@? 

rt:) 

Receipt Number: ___ _ Amount: ___ _ 

Transaction Number: __ _ Amount: ___ _ 

Receipt Number: ___ _ Amount: ___ _ 

Transaction Number: __ _ Amount: ---- Description: __ _ 

COSTS.OF SUIT ASSESSED TO: ~, COSTS OF CERTIFIED COPIES ASSESSED TO: 

0 

Name: Mark Glasser ~\ 

Address: 1000 Lou_isiana #600();~ 

Houston, tx 77002\Q'i~ 

#8014500 () 

Danielle N. Jimenez ?J.~ 

Amount: . N/A 

Address: N/A 

Clerk Preparing Fo~ FCN 

·~ 

~ .. JU<l&\ ~'t\tf3~ FCN . 

Adjustment Clerk FCN 

FILED 

Chris Daniel 

District Clerk 

OCT 2 9 2014 Ttme:_~-=--=--:--=--~­ Harris County, Texas 

BY.~----~--~~ Deputy 

12.2.2014 

Date 

L+'q· 1y Date · 

} 

SJ 

B 

Date 

EXHIBIT 

/J 

Appendix 075
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201305124- 7 

VICNRG LLC (A TEXAS LIMITED PLEA OF LIABILITY CO vs. GREEN DIESEL 112812013 334 Civil <!;.~' 

Ready Docket 

LLC (A DELAWARE LIMITED LIA PRIVILEGE 

VICNRG LLC (A TEXAS LIMITED 

201305124A- 7 LIABILITY CO vs. 1/28i2013 334 Civil SEVERANCE ....,._·,-,.o;_,. 

Active - Civil RIVKIN, PHILIP J 

201305124B- 7 VICNRG LLC (A TEXAS LIMITED 112812013 334 Civil SEVERANCE Active - Civil LIABILITY CO vs. FCSTONE, LLC 

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2/3/2015 

Appendix 076
DOCUMENT 8 

Appendix 077
Peter F. Bagley 

Blumberg & Bagley, L.L.P. 

Attorneys 

2304 West Interstate 20, Suite 190 

Arlington, Texas 76017 

www.blumbergbagley.com 

Board Certified, Consumer and Commercial Law, Texas Board of Legal Specialization 

Fellow, College of the State Bar of Texas 

Mr. Christopher Prine 

Deupty Clerk 

14th Court of Appeals 

Harris County District Clerk 

301 Fannin, Suite 245 

Houston, Texas 77002 

March 9, 2015 

14-1 o-uu Hl4-Ll 

FOURTEENTH COURT OF APPE 

HOUSTON, TEX. 

3/9/2015 2:09:47 p 

CHRISTOPHER PF 

CLEF 

(817) 277-1500 

Facsimile (817) 277-1170 

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
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 

Yours sincerely, 

Isl Peter F. Bagley 

Peter F. Bagley 

FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. 

Appendix 079
DOCUMENT9 

Appendix 080
CAUSE NO. 14-15-00194-CV 

14-1 o-uu 1 84-L; 

FOURTEENTH COURT OF APPE 

HOUSTON, TEX, 

3/12/2015 4:08:35 p 

CHRISTOPHER PF 

CLEF 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE 14th COURT OF APPEALS 

VICNRGLLC, 

Plaintiff 

v. 

FCSTONE, LLC, FCSTONE TRADING, 

LLC and FCSTONE GROUP, INC., 

Defendants 

HOUSTON, TEXAS 

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. 

GREEN DI-ESEL, LLC, et al. 

OF HARRIS COUNTY, TEXAS 

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 hJ' 

. <Q> 

ORDERED, ADJUDGED and DEC? that FCStone's Traditional and NoEvidence 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 

causes of action against FCStone. U, further, 

ORDERED, AD~ and DECREED that FCStone be awarded all costs of court 

related to its defense her~ is, further, 

:cfU 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 thi~ered cause of action. 

SIGNED this. f 0""' dayof __ d_'M_d~,C..------2015. 

FILED - Chris Oanlel 

District Cferk 

nme:. 

MAR 1 O 2015 EXHIBIT 

H•rrf• County, ntxu 

BY, I I 

Deputy 

Appendix 084
DOCUMENT 10 

Appendix 085
Cause No. 201305124B 

3/12/2015 8:54:26 AM 

Chris Daniel - District Clerk Harris County 

Envelope No. 4467911 

By: Phyllis Washington 

Filed: 3/12/2015 8:54:26 AM 

VICNRGLLC, 

Plaintiff 

v. 

FCSTONE, LLC, FCSTONE TRADING, 

LLC and FCSTONE GROUP, INC., 

Defendants 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT 

HARRIS COUNTY, TEXAS 

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. 

NOTICE OF APPEAL 

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 

Page J 1 

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