                                                                                            ACCEPTED
                                                                                       14-15-00194-CV
                                                                         FOURTEENTH COURT OF APPEALS
                                                                                     HOUSTON, TEXAS
                                                                                 3/24/2015 11:46:32 AM
                                                                                   CHRISTOPHER PRINE
                                                                                                CLERK


                                  No. 14-15-00194-CV
                         ________________________________         FILED IN
                                                           14th COURT OF APPEALS
                             IN THE COURT OF APPEALS          HOUSTON, TEXAS
               FOR THE   FOURTEENTH JUDICIAL DISTRICT OF     TEXAS
                                                           3/24/2015 11:46:32 AM
                          ________________________________ CHRISTOPHER A. PRINE
                                                                    Clerk
                                     VICNRG LLC,
                                      Appellants,
                                           v.
                      FCSTONE, LLC, FCSTONE TRADING, LLC
                           and FCSTONE GROUP, INC.,
                                    Appellees.
                         ________________________________
APPELLEES’ RESPONSE TO APPELLANT’S UNOPPOSED MOTION TO
   ENLARGE PERIOD DURING WHICH IT MIGHT REPSOND TO
 APPELLEES’ MOTOIN TO DISMISS FOR LACK OF JURISDICTION
              ________________________________
                         On Appeal from the 334th District Court
                                 Harris County, Texas
                               Cause No. 2013-05124B
                             Hon. Grant Dorfman, Presiding
                         ________________________________

Mark K. Glasser                            David Hoffman (admitted pro hac vice)
Texas Bar No. 08014500                     Illinois State Bar No. 6229441
Tracy N. LeRoy                             Kees Vandenberg (admitted pro hac vice)
Texas Bar No. 24062847                     Illinois State Bar No. 6301079

Sidley Austin LLP                          Sidley Austin LLP
1000 Louisiana, Suite 6000                 One South Dearborn
Houston, Texas 77002                       Chicago, Illinois 60606
Telephone: 713-495-4500                    Telephone: 312- 853-7000
Facsimile: 713-495-7799                    Facsimile: 312-853-7036

                                         Attorneys for Appellees-Defendants
                                         FCStone, LLC, FCStone Trading, LLC and
                                         FCStone Group, Inc.


ACTIVE 206707132v.1
       Appellees FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc.

(“FCStone”) respectfully respond to Appellant VicNRG, LLC’s (“Appellant’s”)

Unopposed Motion to Enlarge Period During Which it Might Respond to

Appellees’ Motion to Dismiss for Lack of Jurisdiction to correct VicNRG’s

mischaracterizations of the procedural posture of this case. While FCStone does

not object to VicNRG’s request for additional time to respond to FCStone’s

Motion to Dismiss (although FCStone notes that VicNRG appears to have been

able to substantively respond to the Motion to Dismiss in its Motion to Enlarge),

FCStone does object to VicNRG’s mischaracterizations of FCStone’s Motion and

the trial court record.

      First, FCStone’s Motion to Dismiss for Lack of Jurisdiction was not filed in

“respon[se]” to the Court’s order granting VicNRG’s request that this appeal not

be treated as an accelerated appeal, as stated in VicNRG’s Motion to Enlarge (para.

4). FCStone’s Motion is premised on the fact that VicNRG did not timely file its

notice of appeal from judgment, not this Court’s order granting VicNRG’s request.

      Second, VicNRG mischaracterizes the procedural history of this case. The

trial court signed a summary judgment order in favor of FCStone on August 1,

2014; VicNRG’s insistence that there is only a “proposed order” in the record is

simply baffling (para. 4). Likewise, FCStone did not submit a proposed judgment

to the trial court after the motion for severance was granted and the severance


                                         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 than one month after VicNRG first appealed. VicNRG

offers no basis for its claim that FCStone should have filed a Motion to Dismiss

prior to VicNRG even filing its untimely appeal.

          In sum, while FCStone has no objection to enlarging VicNRG’s time to

respond to its Motion to Dismiss, FCStone does object to VicNRG’s use of its

Unopposed Motion to Enlarge to misstate the record.




                                           2
ACTIVE 206707132v.1
                          Respectfully submitted,

                             By:   /s/ Mark K. Glasser

                                Mark K. Glasser
                                State Bar No. 08014500
                                Tracy N. LeRoy
                                State Bar No. 24062847

                             SIDLEY AUSTIN, LLP
                             1000 Louisiana, Suite 6000
                             Wells Fargo Plaza
                             Houston, Texas 77002
                             713-495-4500 (telephone)
                             713-495-7799 (facsimile)
                             mglasser@sidley.com
                             tleroy@sidley.com


                                David Hoffman (admitted pro hac
                                vice)
                                Illinois State Bar No. 6229441
                                Kees Vandenberg (admitted pro hac
                                vice)
                                Illinois State Bar No. 6301079

                             SIDLEY AUSTIN, LLP
                             One South Dearborn
                             Chicago, Illinois 60606
                             (312) 853-7000 (telephone)
                             (312) 853-7036 (facsimile)
                             david.hoffman@sidley.com
                             c.vandenberg@sidley.com

                      COUNSEL FOR DEFENDANTS FCSTONE,
                      LLC, FCSTONE TRADING, LLC, and
                      FCSTONE GROUP, INC.


                            3
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




                                         4
ACTIVE 206707132v.1
