ACTIVE 206707132v.1 No. 14

- 15

- 00194 -CV

________________________________ IN THE COURT OF APPEALS FOR THE FOURTEENTH JUDICIAL DISTRICT OF TEXAS

________________________________ VICNRG LLC, Appellants,

v. FCSTONE, LLC, FCSTONE TRADING, LLC and FCSTONE GROUP, INC., Appellees.

________________________________ APPELLEES’ RESPONSE TO APPELLANT’S UNOPPOSED MOTION TO ENLARGE PERIOD DURING WHICH IT MIGHT REPSOND TO APPELLEES’ MOTOIN TO DISMISS FOR LACK OF JURISDIC TION

________________________________ On Appeal from the 334th District Court Harris County, Texas Cause No. 2013

- 05124B Hon. Grant Dorfman, Presiding

________________________________ Mark K. Glasser Texas Bar No. 08014500 Tracy N. LeRoy Texas Bar No. 24 062847 Sidley Austin LLP 1000 Louisiana, Suite 6000 Houston, Texas 77002 Telephone: 713

- 495

- 4500 Facsimile: 713

- 495

- 7799 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 Telephone: 312 - 853

- 7000 Facsimile: 312

- 853

- 7036 Attorneys for Appellees

- Defendants FCStone, LLC, FCStone Trading, LLC and FCStone Group, Inc. ACCEPTED 14-15-00194-CV FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS 3/24/2015 11:46:32 AM CHRISTOPHER PRINE

CLERK1 Appellees FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc. (“FCStone”) respectfully respond to Appellant VicNRG, LLC’s (“Appellant’s”) Unopposed Motion to Enlarge Period During Which it Might Respond to Appellees’ Motion to Dismiss for Lack of J urisdiction to correct VicNRG’s mischaracterizations of the procedural posture of this case. While FCStone does not object to VicNRG’s request for additional time to respond to FCStone’s Motion to Dismiss (although FCStone notes that VicNRG appears to have been able to substantively respond to the Motion to Dismiss in its Motion to Enlarge), FCStone does object to VicNRG’s mischaracterizations of FCStone’s Motion and
the trial court record. First, FCStone’s Motion to Dismiss for Lack of Jurisdiction was not filed in “respon[se]” to the Court’s order granting VicNRG’s request that this appeal not be treated as an accelerated appeal, as stated in VicNRG’s Motion to Enlarge (para. 4). FCStone’s Motion is premised on the fact that VicNRG did not timely file its notice of appeal from judgment, not this Court’s order granting VicNRG’s request. Second, VicNRG mischaracterizes the procedural history of this case. The trial court signed a summary judgment order in favor of FCStone on August 1, 2014; VicNRG’s insist ence that there is only a “proposed order” in the record is simply baffling (para. 4). Likewise, FCStone did not submit a proposed judgment
to the trial court after the motion for severance was granted and the severance2 ACTIVE 206707132v.1 order signed, as stated by VicNRG ( id .). FCStone had, in the abundance of caution, submitted both a proposed severance order and a proposed judgment with its motion to sever on the assumption that the trial court would enter them the same day. As discussed in FCStone’s Motion to Dismiss, when the trial court signed the severance order, the summary judgment became final and appealable, and entry of a later judgment would violate the final judgment rule. Third, and finally, VicNRG’s contention that FCStone has “had months” to prepare FCStone ’s “lengthy” Motion to Dismiss is flatly wrong. VicNRG filed its first, “conditional” notice of appeal in this Court on February 20, and its second amended notice of appeal on March 12. FCStone filed its 12

- page Motion to Dismiss six days later, less tha n one month after VicNRG first appealed. VicNRG
offers no basis for its claim that FCStone should have filed a Motion to Dismiss prior to VicNRG even filing its untimely appeal. In sum, while FCStone has no objection to enlarging VicNRG’s time to respond to its Motion to Dismiss, FCStone does object to VicNRG’s use of its Unopposed Motion to Enlarge to misstate the record.3 ACTIVE 206707132v.1 Respectfully submitted, By: /s/ Mark K. Glasser
Mark K. Glasser State Bar No. 08014500 Tracy N. LeRoy State Bar No. 24062847
SIDL EY AUSTIN, LLP 1000 Louisiana, Suite 6000 Wells Fargo Plaza Houston, Texas 77002 713

- 495

- 4500 (telephone) 713

- 495

- 7799 (facsimile) mglasser@sidley.com tleroy@sidley.com
David Hoffman (admitted pro hac vice) Illinois State Bar No. 6229441 Kees Vandenberg (admitted pro hac vice) Illinois State Bar No. 6301079 SIDLEY AUSTIN, LLP One South Dearborn Chicago, Illinois 60606 (312) 853

- 7000 (telephone) (312) 853

- 7036 (facsimile) david.hoffman@sidley.com c.vandenberg@sidley.com COUNSEL FOR DEFENDANTS FCSTONE, LLC, FCSTONE TRADING, LLC, and FCSTONE GROUP, INC.4 ACTIVE 206707132v.1 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing documents was forwarded to all counsel of record on the 24th day of March, 2015, by electronic mail and U.S. mail. Daniel E. Blumberg Peter F. Bagley Blumberg & Bagley, L.L.P. 2304 W. Interstate 20, Suite 190 Arlington, Texas 76017 Tel: (817) 277

- 1500 Fax: (817) 277

- 1170 James T. Drakeley R. Scott Seifert Hiersche, Hayward, Drakeley & Urbach, P.C. 15303 Dallas Parkway, Suite 700 Addison, Texas 75001

By: /s/ Tracy N. LeRoy