                                                                                  ACCEPTED
                                                                              01-14-00104-CV
                                                                   FIRST COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                         6/12/2015 6:15:45 PM
                                                                        CHRISTOPHER PRINE
                                                                                       CLERK

                    IN THE COURT OF APPEALS
              FIRST DISTRICT OF TEXAS AT HOUSTON
    ___________________________________________________________
                                                        FILED IN
                                                   1st COURT OF APPEALS
                                                       HOUSTON, TEXAS
                         NO. 01-14-00104-CV        6/12/2015 6:15:45 PM
                                                   CHRISTOPHER A. PRINE
    ___________________________________________________________
                                                           Clerk

                    WHITE LION HOLDINGS, L.L.C.

                                Appellant

                                   vs.

                         THE STATE OF TEXAS

                              Appellee
    ___________________________________________________________

                              On Appeal from
                    th
                The 98 District Court of Travis County, Texas
         Trial Court No. D-1-GV-06-000627 and D-1-GV-13-001068
    ___________________________________________________________

    APPELLANT’S AMENDED MOTION FOR PANEL REHEARING



Jacqueline Lucci Smith                      Joan Lucci Bain
TBA #: 00786073                             TBA #: 01548020
LUCCI SMITH LAW PLLC                        BAIN & BAIN PLLC
10575 Katy Freeway, Suite 470               10575 Katy Freeway, Suite 405
Houston, Texas 77024                        Houston, Texas 77024
Tel.: 832-494-1700                          Tel.: 713-629-6222
Fax: 832-494- 1426                          Fax: 713-629-6226
Email: JLS@LucciSmithLaw.com                JBain@BainandBainlaw.net


                  ORAL ARGUMENT REQUESTED
                                           TABLE OF CONTENTS


                                                                                                                         Page

TABLE OF CONTENTS ............................................................................................i 

TABLE OF AUTHORITIES .................................................................................... ii 

APPENDIX TABLE OF CONTENTS .....................................................................iv 

STATEMENT REGARDING RECORD REFERENCES..................................... vii 

STATEMENT OF THE CASE .................................................................................. 1 

ARGUMENT AND AUTHORITIES ........................................................................ 3 

A.       Rehearing Should be Granted Because This Court Lacked Jurisdiction
         to Consider the Merits Due to an Invalid Severance in the Court
         Below ............................................................................................................... 3 

B.       The State’s Pleadings Clearly Demonstrate It Seeks to Hold Morello
         Liable Exclusively on His Status of Sole Member of the LLC. ...................... 4 

C.       The Severance Order Is Invalid Because It Severs a Single Cause of
         Action into Separate Claims ............................................................................ 6 

D.       The Severance Is Invalid Because The State’s Claims Against White
         Lion Are Inextricably Intertwined With Its Claims Against Morello ............. 7 

E.       The Invalid Severance Requires Dismissal or Remand .................................. 9 

F.       Improper Severance in This Case Results in Denial of Due Process
         and an Excessive Fine in Violation of the Texas and United States
         Constitutions .................................................................................................. 11 

G.       A Double Recovery for the Same Conduct Constitutes An Excessive
         Fine ................................................................................................................ 12 

PRAYER .................................................................................................................. 19 




                                                               i
                                   TABLE OF AUTHORITIES

Cases

Dalisa, Inc. v. Bradford,
 81 S.W.3d 876 (Tex.App. – Austin 2002) ................................................. 6, 10, 11

FFP Operating Partners LP v. Duenez,
 237 S.W. 3d 680 (Tex. 2007)................................................................... 6, 7, 9, 14

Guar. Fed. Savs. Bank v. Horseshoe Operating Co.,
 793 S.W.2d 652, 658-659 (Tex. 1990) .......................................................... 6, 7, 8

In Re Henry; Henry v. Masson,
  388 S.W.3d 719 (Tex. App. – Houston [1st Dist.] 2012 .......................................11

In Re Stonebridge Ins. Co.,
  279 S.W. 3d 360 (Tex. App. – Austin 2008) ........................................................11

Jones v. America Flood Research Inc.,
  153 S.W.3d 718 (Tex. App. – Dallas, 2005) ................................................... 9, 10

Jones v. Ray,
  886 S.W.2d 817 (Tex. App. – Houston [1st Dist.] 1994 ................................ 8, 10

Nicor Exploration Co. v. Florida Gas Transmission Co.,
 911 S.W.2d 479 (Tex. App. – Corpus Christi 1995). .............................................7

Owens-Corning Fiberglas Corp. v. Malone,
 972 S.W.2d 35 (Tex.1998)....................................................................................13

Pennington v. Singleton,
 606 S.W.2d 682 (Tex. 1980).......................................................................... 12, 13

R. Communications Inc. v. Sharp,
  875 S.W.2d 314 (Tex. 1994).................................................................................13

Roberts v. Haltom,
 543 S.W.2d 75, 80 (Tex. 1976) ............................................................................15

St. Louis, Iron Mountain & S. Ry. Co. v. Williams,
  251 U.S. 63, 40 S.Ct. 71 (1919)............................................................................13


                                                      ii
Stroud v VBFSB Holding Corporation,
  917 S.W.2d 75 (Tex. App. – San Antonio 1996) .................................................14

Stroud v. VBFSB Holdings,
  901 S.W.2d 657 (Tex. App.—San Antonio, 1995) ..............................................10

Texas Dep’t of Transportation v. A.P.I. Pipe and Supply, LLC,
  397 S.W.3rd 162 (Tex. 2013) ................................................................................16

Womack v. Berry,
 156 Tex. 44, 291 S.W.2d 677 (1956) .....................................................................6

Statutes
TEX. WATER CODE § 7.101 .......................................................................................14

Rules
TEX. R. APP. P. 41.3. ................................................................................................10

TEX. R. Civ. P. 41 ......................................................................................................7

Constitutional Provisions
TEX. CONST. ART. I, § 13 .................................................................................. 11, 13




                                                           iii
                     APPENDIX TABLE OF CONTENTS


Appendix 1: State of Texas’ Motion for Summary Judgment against Bernard
Morello in Cause No. D-1-GV-06-000627 in the 353rd District Court of Travis
County, Texas, with Exhibits A-U.

Exhibit A: Real Estate Purchase Agreement by and Between Vision Metals, Inc.
           and Bernard Morello, dated February 27, 2004, as amended by First
           Amendment to Real Estate Purchase Agreement, dated March 30, 2004,
           Bates Nos. 581-611 (“Real Estate Agreement”).
Exhibit B: Articles of Organization for White Lion Holdings L.L.C., dated April 2,
           2004 and Change of Registered Agent/Office, White Lion Holdings,
           L.L.C., dated May 11, 2005 (“White Lion Articles”).
Exhibit C: Excerpts from the Deposition of Bernard Morello, September 19, 2014,
           in this matter, Cause No. D-1-GV-06-000627 (“Morello Deposition 9-
           19-14”).
Exhibit D: Assignment of Real Estate Purchase Agreement, dated April 5, 2004,
           Bates No. 756 (“Assignment”).
Exhibit E: Special Warranty Deed, Transferring four tracts of real property to
           White Lion Holdings, L.L.C., filed and recorded April 12, 2004
           (“Deed”).
Exhibit F: Affidavit of Eleanor Wehner TCEQ, dated October 31, 2014, with
           Exhibit (“Wehner Affidavit”).
           Exhibit F-1: Semi-Annual Compliance Plan Report, Vision Metals-
           Gulf States Tube Division, dated January 8, 2004.
Exhibit G: Permit for Industrial Solid ·waste Management Site, Docket No. 1999-
                   1208-IHW, Permit         No.HW-50129-001,         Bates Nos.
                  501-530 (“Permit”).
Exhibit H: Compliance Plan for Industrial Solid Waste Management Site,
           Compliance Plan No. CP-50129, Docket 1999-1208-IHW, Bates Nos.
           538-569. (“Compliance Plan”).
Exhibit I: Compliance Plan Application, dated May 18, 2004 (“Compliance Plan
           Application”).
Exhibit J: Excerpts from the Deposition of Bernard Morello, September 28, 2007,
           in White Lion Holdings, L.L.C. v. Sharon Tube Corp. et al., Cause No.
           05-CV-146366 (“Morello Deposition 9-28-07”).
Exhibit K: TCEQ, Transmittal of Class I Permit and Compliance Plan
           Modification, Transfer of Permit and Compliance Plan to White Lion
           Holdings, L.L.C., dated July 23, 2004, Bates Nos. 621-622, and Permit

                                        iv
             and Compliance Plan Modification sheets ("Permit and Compliance
             Plan Transfer Approval").
Exhibit L:   Letter from Bernard Morello/White Lion to the TCEQ, dated July 29,
             2004, Bates Nos. 624-625 ("7-29-04 Morello Correspondence").
Exhibit M:   Letter from the U.S. Environmental Protection Agency, Region 6 to
             Bernard Morello/White Lion, dated April 16, 2007 ("4-16-07 EPA
             Correspondence").
Exhibit N:   Letter from the TCEQ to Bernard Morello/White Lion, dated
             September 20, 2004, Bates Nos. 626-627 ("9-20-04 TCEQ
             Correspondence").
Exhibit O:   Letter from the TCEQ to Bernard Morello/White Lion, dated October
             14, 2004, Bates Nos. 634-635 ("10-14-04 TCEQ Correspondence").
Exhibit P:   Notice of Violation from the TCEQ to Bernard Morello/White Lion,
             dated October 7, 2004, Bates Nos. 630-632 ("10-07-04 TCEQ Notice
             of Violation").
Exhibit Q:   Notice of Violation from the TCEQ to Bernard Morello\White Lion,
             dated December 14, 2004, Bates Nos. 828-831 ("10-07-04 TCEQ
             Notice of Violation").
Exhibit R:   Affidavit of Elija Gandee, TCEQ dated November 3, 2014, with
             Exhibits ("Gandee Affidavit").
             Exhibit R-1: Site Inspection Photographs taken January 4, 2008.
             Exhibit R-2: Site Inspection Photographs, taken July 29, 2013.
Exhibit S:   Accord Commercial Insurance Application, dated April 2, 2004 (this
             document was produced and filed as Exhibit 14-1 of White Lion's
             Response to the State's Motion for Summary Judgment as to White
             Lion) ("Insurance Application").
Exhibit T:   Excerpts from the Deposition of Bernard Morello, February 2, 2007, in
             White Lion Holdings, L.L.C. v. Yoder Machinery Sale, Inc. et al., Cause
             No. 05-CV-146269 ("Morello Deposition 2-02-07").
Exhibit U:   Affidavit of Anthony W. Benedict, Office of the Attorney General,
             dated November 21, 2014 ("Benedict Affidavit").

Appendix 2: Morello’s Response to Motion for Summary Judgment in Cause No.
D-1-GV-06-000627 in the 353rd District Court of Travis County, Texas, with
Exhibits A-K.

Exhibit A: Deposition Testimony of Bernard Morello, taken on September 19,
           2014
Exhibit B: Compliance Plan
Exhibit C: Real Estate Purchase Agreement dated February 27, 2004
                                         v
Exhibit D:   Assignment of Real Estate Purchase Agreement
Exhibit E:   Specialty Deed
Exhibit F:   Application for Transfer of Compliance Plan
Exhibit G:   Notices of Enforcement sent to White Lion Holdings, LLC
Exhibit H:   Affidavit of David H. Heslep
Exhibit I:   Affidavit of Wayne H. Crouch
Exhibit J:   Final Judgments
Exhibit K:   Documents Related to Financial Assurance


Appendix 3: Order Granting Final Summary Judgment against Morello in Cause
No. D-1-GV-06-000627 in the 353rd District Court of Travis County, Texas.


Appendix 4: Morello’s Motion for New Trial in Cause No. D-1-GV-06-000627 in
the 353rd District Court of Travis County, Texas, with Exhibits A-K.

Exhibit A: Deposition Testimony of Bernard Morello, taken on September 19,
           2014
Exhibit B: Compliance Plan
Exhibit C: Real Estate Purchase Agreement dated February 27, 2004
Exhibit D: Assignment of Real Estate Purchase Agreement
Exhibit E: Special Warranty Deed
Exhibit F: Affidavit of David H. Heslop
Exhibit G: Reporter’s Record dated February 19, 2015 Summary Judgment
           Hearing
Exhibit H: Affidavit of Bernard Morello
Exhibit I: Final Summary Judgment, Permanent Injunction and Order of
Severance
Exhibit J: March 9, 2015 Letter from 98th District Court granting State’s Motion
           for Summary Judgment
Exhibit K: Admitting Affidavits of David H. Heslop and Wayne H. Crouch




                                       vi
            STATEMENT REGARDING RECORD REFERENCES



Record references in this brief will be made as follows:

1.    13-821-CV 010314 RR Vol 1 of 1 .............................................................. RR

2.    CR (1 of 1) FLD072414 .............................................................................. CR

3.    CR SUPP (1 of 1) FLD 111914 ................................................................. CRS

4.    CRS (1 of 1) FLD121114 .......................................................................... CR2

5.    Appendix 1: State of Texas Motion for Summary Judgment
      against Bernard Morello in Cause No. D-1-GV-06-000627 in the
      353rd District Court of Travis County, Texas. ...................................... Appx. 1

6.    Appendix 2: Morello’s Response to Motion for Summary
      Judgment with Exhibits A-K in Cause No. D-1-GV-06-000627
      in the 353rd District Court of Travis County, Texas ............................ Appx. 2

7.    Appendix 3: Order Granting Final Summary Judgment against
      Morello in Cause No. D-1-GV-06-000627 in the 353rd District
      Court of Travis County, Texas ............................................................. Appx. 3

8.    Appendix 4: Morello’s Motion for New Trial with Exhibits A-
      K in Cause No. D-1-GV-06-000627 in the 353rd District Court
      of Travis County, Texas ....................................................................... Appx. 4




                                                   vii
TO THE HONORABLE JUSTICES RADACK, BROWN AND LLOYD:

      Subject to and without waiving its rights to further appeal this Court’s

decision, Appellant, White Lion Holdings, LLC moves for rehearing of this Court’s

panel opinion issued April 9, 2015 on two separate and independent grounds:

      1.     The court below improperly severed White Lion from identical claims
             asserted against Morello, individually, resulting in a windfall for the
             state in a double recovery, exorbitant litigation costs, confusing liability
             issues and potentially inconsistent court rulings and findings. The void
             severance deprives this Court of jurisdiction to consider the merits of
             the appeal and requires the appeal be dismissed and the cases rejoined
             in the trial court.

      2.     This Court failed to consider the affirmative defenses pled by White
             Lion and presented in its response: specifically, the State is not entitled
             to the most, if not all of the penalties because it 1) failed to mitigate its
             damages, and 2) waived its right to penalties due to its unreasonable
             delay, resulting in the denial of White Lion’s right to due process of
             law.

                          STATEMENT OF THE CASE
      This case is an enforcement proceeding, not an environmental tort. While

employees have been held responsible for their own environmental torts, no court

has held employees liable for the company’s breach of an agreement or statutory

compliance failures. Reconsideration is appropriate to address this issue of first

impression which is of exceptional importance to Texas law and requires analysis of

conflicting authorities concerning invalid severance, ultimately impacting this

Court’s jurisdiction.
                                           1
      White Lion is a limited liability company (“LLC”) and Morello is its sole

member. Subsequent to briefing in this appeal, the State sought summary judgment

against Morello individually on the sole basis of his status as a member of the LLC.

(Appx. 1, State MSJ p. 29). Specifically, this Court must determine whether the State

may use severance to split a single statutory violation into duplicate claims against

both an LLC and its sole member in order to recover duplicate statutory fines against

both. The court below did just that. The first summary judgment at issue in this

appeal awarded statutory fines against White Lion for violating a Compliance Plan

with the Texas Commission on Environmental Quality (TCEQ). At the State’s

request, the trial court severed White Lion from the original proceeding in its final

summary judgment order. This Court’s panel did not address the double jeopardy by

severance issue because at the time of briefing the State had not filed its second

motion in the trial court.    The panel denied oral argument, so there was no

opportunity for White Lion to apprise the Court of the developments in the

underlying case. Further, because the State’s pleadings in the original case referred

to White Lion and Morello jointly in all allegations, White Lion did not anticipate

that the State would seek duplicate recovery.

      After briefing was completed in this appeal, the State moved for summary

judgment in the trial court against Morello, individually. (Appx. 1, State MSJ). The

State sought and was granted a judgment against Morello for the same violations and

                                         2
based on the identical evidence, despite the fact that Morello has never owned the

Property or been a party to the Compliance Plan. The State now holds two

judgments in separate cases for the same violation – one against White Lion and the

other against its manager, Morello – a result that forces examination of the validity

of the severance order and this Court’s jurisdiction over this appeal.

      There is a split of authority among the courts on the effect of an invalid

severance. Since this case was transferred from the Austin Court of Appeals, this

Court must apply the precedent of the Austin Court in considering the issue and the

impact on this appeal; i.e., whether to dismiss this appeal for want of jurisdiction and

remand for rejoinder with the original case or address the merits of the appeal.

                       ARGUMENT AND AUTHORITIES

      A.     REHEARING SHOULD BE GRANTED BECAUSE THIS COURT LACKED
             JURISDICTION TO CONSIDER THE MERITS DUE TO AN INVALID
             SEVERANCE IN THE COURT BELOW
      This panel was deprived of the ability to address an issue of great import to

Texas because the issue did not manifest until after all briefing herein was

completed. Reconsideration is appropriate to address this issue of first impression

which is of exceptional importance to procedural and substantive law and requires

analysis of conflicting authorities concerning this Court’s jurisdiction. Specifically,

this Court must determine whether the State may use severance to create a windfall

by splitting a single act into duplicate claims against an LLC and its sole member.


                                           3
Once the State obtained summary judgment against White Lion for violating a

Compliance Plan with the TCEQ, at the State’s request, the trial court severed White

Lion from the original proceeding in its final summary judgment order (CR 549-

554, 629). When this appeal ensued, the State waited until all briefing was completed

in this Court before asserting the identical claims and using the identical evidence

against Morello, individually, to secure a second summary judgment for the same

acts.

        B.    THE STATE’S PLEADINGS CLEARLY DEMONSTRATE IT SEEKS TO
              HOLD MORELLO LIABLE EXCLUSIVELY ON HIS STATUS OF SOLE
              MEMBER OF THE LLC.

        The State’s suit against White Lion consisted of two claims: 1) it failed to

comply with CP-50129, a violation of Texas Water Code §7.102, and 2) it failed to

acquire financial assurance in the amount of $574,000 in violation of the Texas

Admin. Code. In order to obtain severance, the State represented that its remaining

claims against Morello were independent from those that it was asserting against

White Lion, stating that “If this Court grants the State’s Motion for Summary

Judgment, all issues and causes of action against White Lion will be resolved.”

(Appx. 1, State MSJ p. 24-25). The State failed to disclose to the trial court the

jurisdictional limits on severance that applied if the State proceeded against Morello

on the identical grounds for recovery, which it later did. Without discussion, the trial




                                           4
court’s summary judgment order severed White Lion from the original case. (CR

549-554, 629).

      Notably, the State waited until after White Lion’s issues in this appeal were

defined by its initial briefing before filing its motion for summary judgment against

Morello individually. In that Motion, the State asserted the exact same allegations

against Morello, imposing liability for the exact same conduct, twice. In fact, the

State even argued, “This is a statutory enforcement action brought against Morello

as operator and sole decision maker of White Lion . . . .” (Appx. 1, State MSJ at p.

29, emphasis added).

      The State’s motion against Morello did not even attempt to assert any

independent ground for recovery proving that the State’s claims against White Lion

were not independent, and that the severance order is invalid. The motion sought to

hold Morello individually liable for a second full fine because he is the sole member

of White Lion and not because he assumed individual liability for the Compliance

Plan or the obligation to provide personal financial assurance. How could it that be?

      The State neither pled nor argued that it was seeking liability against Morello

by piercing the corporate veil, and it expressly disavowed that the judgment it sought

against Morello derived from an independent tort. (Appx. 1, State MSJ). The State

openly conceded that it was seeking a second judgment against Morello because

“Morello is White Lion.” (Appx. 4, Exhibit G, Supp. RR at 10:14). The motion

                                          5
against Morello was presented to the trial court on February 19, 2015. This Court

issued its opinion on April 9, 2015, just five days before the trial court entered

judgment against Morello individually on April 14, 2015. (Appx. 3.) The judgment

against Morello is for the same fines that were awarded in the summary judgment

against White Lion, at issue in this appeal.

      C.     THE SEVERANCE ORDER IS INVALID BECAUSE IT SEVERS A SINGLE
             CAUSE OF ACTION INTO SEPARATE CLAIMS
      TEX R. CIV. P. 41 states that “[a]ny claim against a party may be severed and

proceeded with separately,” however a trial court’s discretion to sever is not

unlimited. Dalisa, Inc. v. Bradford, 81 S.W. 3d 876, 879 (Tex. App. – Austin, no

pet). (“Such discretion may not be exercised contrary to legal rules and principles

applicable in the particular case.” Id., quoting Womack v. Berry, 156 Tex. 44, 291

S.W.2d 677, 683 (1956)). Whether a severance is valid is a question of law. Guar.

Fed. Savs. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658-659 (Tex. 1990).

      Rule 41does not permit severance of a single cause of action against separate

parties. Dalisa, Inc., 81 S.W. 3d at 879 (Tex. App. – Austin, no pet) (“[s]everance

of a single cause of action into two parts is never proper” … “The reason for the rule

lies in the necessity for preventing vexatious and oppressive litigation, and its

purpose is accomplished by forbidding the division of a single cause of action so as

to maintain several suits when a single suit will suffice.”) (citations omitted).



                                           6
      The controlling reasons to grant a severance are to do justice, avoid prejudice

and to further convenience the parties. FFP Operating Partners LP v. Duenez, 237

S.W. 3d 680, 693 (Tex. 2007); Nicor Exploration Co. v. Florida Gas Transmission

Co., 911 S.W.2d 479, 482 (Tex. App. – Corpus Christi 1995), writ denied. As such,

severance of a claim is only proper if (1) the controversy involves more than one

cause of action; (2) the severed claim is properly the subject of a lawsuit; and (3)

the severed claim is not so interwoven that it involves the same facts and issues.

FFP Operating Partners LP v. Duenez, 237 S.W. 3d at 693; Guar. Fed. Savs. Bank

793 S.W.2d at 658 (emphasis added). If the claim a party seeks to sever does not

meet all three prongs, then the claim may not be severed, and to do so amounts to an

abuse of discretion. Nicor Exploration Co., 911 S.W.2d at 482 (“By severing [one

plaintiff’s action from the action of another plaintiff], the trial court effectively

severed a party, instead of a cause of action.”). Such is the case we have here.

      D.     THE SEVERANCE IS INVALID BECAUSE THE STATE’S CLAIMS
             AGAINST WHITE LION ARE INEXTRICABLY INTERTWINED WITH ITS
             CLAIMS AGAINST MORELLO
      While TEX. R. CIV. P. 41 allows the severance of “actions” or separate

“grounds of recovery” that have been improperly joined, the State’s motion for

summary judgment against Morello makes it apparent that neither situation is

present here. Claims in a case are considered interwoven when their severance would

result in two or more separate judgments that, taken in the abstract, would either: (1)


                                          7
undercompensate the plaintiff (because the respective juries could each find the

other defendant fully liable and thus each award plaintiff nothing), or (2) over

compensate the plaintiff (because the respective juries could each find their

respective defendant fully liable and enter two verdicts imposing a double recovery).

      In situations such as this presenting the prospect of double recovery for the

plaintiff or double jeopardy for the defendant, severance is improper because the

third Guaranty Federal factor cannot be met. See Jones v. Ray, 886 S.W.2d 817,

821-822 (Tex. App. – Houston [1st Dist.] 1994, orig. proceeding).

      By splitting the same ground of recovery into separate actions the State was

able to avoid complicated issues of first impression – whether a member of an LLC

can be held individually liable for statutory fines based upon acts taken on behalf of

the LLC, and if so, how the liability is to be apportioned between the entity and the

individual. Exhaustive research failed to identify a single case that allowed a

member of an LLC that was not an employee of the LLC to be held liable for

statutory fines assessed solely on the basis of his membership in the LLC. It is

undisputed in this case that Morello in his individual capacity has never been in the

chain of title to the Property or a party to the Compliance Plan. Therefore, it is also

undisputed that Morello in his individual capacity had no duty in relation to same.

      If in fact liability exists, it is joint and several and as such, the severance order

is void because it deprives both defendants of the opportunity to have the court

                                            8
determine whether White Lion, or Morello in his individual capacity, or both were

responsible for the alleged violations, and to apportion responsibility between them.

FFP Operating Partners LP v. Duenez, supra, 237 S.W. 3d at 693-694 (reversing

jury verdict because trial court improperly severed co-defendant preventing

apportionment of liability between the defendants.).

      E.      THE INVALID SEVERANCE REQUIRES DISMISSAL OR REMAND
      Although there is a conflict among the courts of appeal as to whether an

improper severance deprives an appellate court of jurisdiction to consider an appeal,

several courts, including the Austin Court and this Court, have held that improper

severance deprives the appellate court of jurisdiction. The Dallas Court of Appeals

summarized the conflict among the various courts of appeals regarding jurisdiction

as follows:

       …we briefly address the propriety of the severance order because of a conflict
      in the courts of appeal as to whether an improper severance order affects the
      court's jurisdiction over the appeal. Some courts hold that an improper
      severance is trial court error and does not deprive the appellate court of
      jurisdiction to consider the appeal. Other courts have concluded that pretrial
      discovery and sanction orders are not severable because they cannot stand
      alone as independent suits and are interwoven with the merits of the main
      lawsuit. Such orders are not “claims” that may be severed under rule 41 and
      absent a valid severance, the appellate court lacks jurisdiction. Id. (citations
      omitted).

Jones v. America Flood Research Inc., 153 S.W.3d 718, 722-723 (Tex. App. –

Dallas, 2005).    Further, nearly every court which has concluded that it has

jurisdiction after an improper severance resolves the case by dismissal or remand to

                                          9
remove the severance. The Jones Court did the same. Id. at 723. Many Courts have

found no jurisdiction to hear the appeal. In situations such as the one presented here,

where the severance order splits a cause of action, courts almost uniformly dismiss

the appeal for lack of jurisdiction. Dalisa, Inc. v. Bradford, 81 S.W.3d at 882;

Jones v. Ray, 886 S.W.2d at 822. In fact, the San Antonio Court has adopted the

rule that where the severance order is necessary to make the judgment on appeal

final, the case must be dismissed for lack of jurisdiction. Stroud v. VBFSB Holdings,

901 S.W.2d 657, 660-661 (Tex. App.—San Antonio, 1995, no pet.).

      While it is clear that the courts of appeals have struggled with the issue of

jurisdiction after improper severance there is no single rule that has emerged to

resolve the conflict. The limitations on the length of this motion make it impossible

to present a comprehensive analysis of the various approaches, or to reconcile or

distinguish each individual case. What is decisive for this Court is the fact that this

case was transferred from the Austin Court of Appeals, and this Court is therefore

bound to follow the precedent of that Court to resolve the issue. TEX. R. APP. P. 41.3.

      The controlling precedent in the Austin Court of Appeals remains Dalisa,

Inc. v. Bradford, 81 S.W.3d 876 (Tex.App.-Austin 2002, no pet.). Dalisa holds that

where an otherwise interlocutory judgment is made final by an invalid severance

order, the appellate court lacks jurisdiction over the appeal, requiring dismissal of

the appeal and remand for rejoinder. In Re Stonebridge Ins. Co., 279 S.W. 3d 360,

                                          10
363 (Tex. App. – Austin 2008, orig. proceeding), the Austin court reaffirmed this

holding. “Texas trial courts have broad discretion regarding the severance and

consolidation of cases-but that discretion is not unlimited. One well-established

limitation on that discretion is the single-action rule, or the rule against splitting

claims.” See also, In Re Henry; Henry v. Masson, 388 S.W.3d 719, 726 (Tex. App.

– Houston [1st Dist.] 2012, pet. denied) (relying on Dalisa to review the propriety of

a severance order for abuse of discretion.). Thus, whereas here, the trial court has

split a cause of action through severance in order to make an otherwise interlocutory

summary judgment final, the Austin Court of Appeals would find it lacked

jurisdiction over the appeal, dismiss the appeal and remand the case to be re-joined

to cure the defect. This Court should do the same.

      F.     IMPROPER SEVERANCE IN THIS CASE RESULTS IN DENIAL OF DUE
             PROCESS AND AN EXCESSIVE FINE IN VIOLATION OF THE TEXAS AND
             UNITED STATES CONSTITUTIONS
      By obtaining separate judgements, the State was able to avoid its stipulation

that it would accept the minimum fine. The state has now recovered fines totalling

over $760,494 (more than five times the purchase price of the property). (Appx. 3,

CR 614-619). Under these circumstances, severance violates due process and the

constitutional protection against excessive fines.

      Article I, section 13 of the Texas Constitution provides, “[e]xcessive bail shall

not be required, nor excessive fines imposed, nor cruel or unusual punishment


                                         11
inflicted.” TEX. CONST. ART. I, § 13. The United States Constitution has the same

prohibition. The term “fines” includes civil penalties. See Pennington v. Singleton,

606 S.W.2d 682, 690 (Tex. 1980). Generally, prescribing fines is a matter within

the discretion of the legislature. There is no question the penalties imposed by the

Texas Water Code are punitive and therefore, within the purview of both the Texas

and Federal Constitutions’ prohibitions against excessive fines.

      G.     A DOUBLE RECOVERY         FOR THE    SAME CONDUCT CONSTITUTES AN
             EXCESSIVE FINE
      There is no precedent for imposing individual duplicate liability against the

member of an LLC just because he is the sole member of the LLC. Assuming without

conceding that any penalty is justified in this case, the State should be limited to one

penalty against the responsible party, whether it be White Lion or Morello. By

severing White Lion, the State avoided a finding on a critical issue central to both

motions – who is the responsible party? Even if the State could argue that the

corporate veil should be pierced (which Morello denies), at most it would have been

entitled to joint and several liability, not a double recovery.

      In its two judgments, the Court has now awarded over $760,494 in fines

against Morello and White Lion after the State stipulated that the civil penalties

should only be $50 per day. (Appx. 4, Ex. I). Morello and White Lion have

consistently maintained inability to pay the fine and to simultaneously conduct

the remediation the state is demanding. Where the amount of a penalty imposed

                                           12
by a State agency is so high that it effectively deprives a citizen of the ability to

litigate his defense to such penalty, it is unconstitutional. See R. Communications

Inc. v. Sharp, 875 S.W.2d 314, (Tex. 1994) (holding that conditioning a taxpayer's

right to initiate judicial review on the payment of taxes or the posting of a bond equal

to twice the alleged tax obligation violates the open courts mandate of the Texas Bill

of Rights. TEX. CONST. ART. I, § 13. “Taxes cannot be raised by means that make

meaningless our constitutional guarantees.”). While this case does not present an

open courts question, it does present an unconstitutional denial of due process and

equal protection under state and federal law.

          1. THE DOUBLE RECOVERY IMPOSED BY THE TWO JUDGMENTS FAILS
             THE PROPORTIONALITY TEST MAKING THE FINES EXCESSIVE.

      Beyond the issue of ability to pay, a fine must be proportionally related to the

offense it is designed to deter or punish. The wide latitude the state has in imposing

fines is exceeded and denies due process “where the penalty prescribed is so severe

and oppressive as to be wholly disproportioned to the offense and obviously

unreasonable.” Pennington, 606 S.W.2d at 690 (quoting St. Louis, Iron Mountain &

S. Ry. Co. v. Williams, 251 U.S. 63, 66-67, 40 S.Ct. 71, 64 L.Ed. 139 (1919)); see

Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 44-48 (Tex.1998) (due

process analysis of punitive damages).

      By presenting each motion as a separate case, the State convinced the trial

court and this panel that the only issue was whether a violation occurred, and if so
                                          13
the applicable penalty.       Even if Morello appeals the judgment against him

individually, there will never be an opportunity to address the correct assessment

and or apportionment of liability in either case. See FFP Operating Partners LP v.

Duenez, supra, 237 S.W. 3d at 693-694 (reversing jury verdict because trial court

improperly severed co-defendant preventing apportionment of liability.)

       White Lion and Morello are now in the impossible position of having to fight

the same case on two fronts before two different appellate courts, with neither court

having the full record before it. See Stroud v VBFSB Holding Corporation, 917

S.W.2d 75, 78 (Tex. App. -- San Antonio 1996, writ denied) (recognizing that

dismissal of compulsory counterclaims which the Court previously found to be

improperly severed, “placed [appellant] in the impossible position of having to

perfect a new appeal based on the then-final judgment before this court had issued

its dismissal of his first appeal.”).

       Even worse, the severance prevents either court from having all of the

necessary parties before it to adjudicate the issue of first impression; i.e., under what

circumstances, if any, an officer or member of an entity may be held individually

liable under TEX. WATER CODE § 7.101 or the related issue; what is the appropriate

method to apportion the responsibility between them. Further, assuming “White

Lion is Morello” as the State so effectively argued, the State’s remedy would have

been to pierce the corporate veil and obtain joint and several liability against White

                                           14
Lion and Morello, not a double recovery against each defendant. Accordingly, this

Court should grant this motion for rehearing, dismiss the appeal for want of

jurisdiction, and remand the case to the trial court for rejoinder with the sister case.

      I.     REHEARING SHOULD BE GRANTED BECAUSE MATERIAL ISSUES OF
             FACT EXIST REGARDING THE AFFIRMATIVE DEFENSES PROPERLY
             RAISED AND ASSERTED BY WHITE LION WHICH SIGNIFICANTLY
             IMPACT THE AMOUNT OF THE JUDGMENT

      Material issues of fact exist regarding the amount of the judgment based on

the affirmative defenses properly pled and presented by White Lion. (CR 531-533).

Specifically, White Lion asserts that the State is estopped from recovering these

fines because the State: 1) failed to mitigate its damages by failing to timely file a

claim against the Vision Metals insurance policy; and 2) cannot benefit financially

from its dilatory conduct which generated a windfall for the state and caused great

harm to White Lion resulting in a denial of due process. (CR 532).

      The Supreme Court has held that estoppel may apply against the government

when two requirements are met. First, the circumstances must demonstrate estoppel

is necessary to prevent manifest injustice; and second, no governmental function will

be impaired. Roberts v. Haltom, 543 S.W.2d 75, 80 (Tex. 1976). While other courts

have been hesitant to allow this exception to apply to governmental entities other

than municipalities, the Supreme recently recognized that estoppel may apply




                                          15
against the State. Texas Dep’t of Transportation v. A.P.I. Pipe and Supply, LLC, 397

S.W.3rd 162, 170 (Tex. 2013).

      In this case, there is evidence that:

            1.     TCEQ officials failed to timely file an insurance claim against

                   the existing policy during the 3 years prior to White Lion’s

                   ownership when Vision Metals was in default; (Appt. Br. at p.

                   5).

            2.     TCEQ officials delayed in filing a claim that would have paid for

                   the restoration of the system and brought the property into

                   compliance at the time White Lion became the owner of the

                   Property;

            3.     TCEQ 12/10/2004 Investigation Summary did not set forth a

                   specific compliance date and address violations from prior to

                   White Loin’s ownership, and thus failed to afford White Lion

                   adequate notice of its obligations and violations. (CR 358-359).

                   Further, all of the notices sent to White Lion after December

                   2004 stated that the penalties could be limited by the State.

                   (Appx. 2, Ex. G). The absence of compliance dates could have

                   reasonably led White Lion to believe the State approved of its




                                          16
     efforts to pursue the EPA program for a modified plan and

     financial assistance, creating a fact issue as to estoppel.

4.   From 2004 – 2007, the record details extensive efforts by White

     Lion to work with the TCEQ and the EPA to obtain financial

     assistance from the EPA and a modification of the overly

     cumbersome plan which had become impossible for White Lion

     to adhere. (CR 363, 365; RR 8-9). The State appeared to be

     working with White Lion to come up with a new compliance

     plan, leading White Lion to believe that it had ample time to

     generate an alternative acceptable to TCEQ.

5.   The State failed to take any action to prosecute this suit between

     2006 and 2013, twice passing trial settings, making it reasonable

     for White Lion to believe that the State was going to continue to

     work with him towards a modification of the plan. There are no

     entries on the docket sheet between February 4, 2008 and

     August 23, 2013. There were continuous discussions between

     White Lion’s attorneys, the State’s attorneys, The TCEQ and The

     EPA trying to find a solution. The State left this suit pending for

     seven years without seeking judgment that would have cut off

     the damages at significantly lesser amounts.

                           17
             6.    The State took no action at all on the case after the 2011

                   continuance until July 2013, when a new Assistant AG took over.

                   Within a month the new AG filed a motion for summary

                   judgment. White Lion attempted to respond in a timely manner,

                   but the State’s AG even refused the professional courtesy of

                   postponing a summary judgment motion to accommodate

                   opposing counsel’s trial schedule and to allow White Lion to

                   retain experts. (CR 641;RR 9-11); and

             7.    The State interfered with White Lion’s efforts to work with the

                   EPA to devise a less cumbersome plan; (Appts. Br. at 7-8, CR

                   365).

      Such delay and tactics arguably misled White Lion to delay corrective

measures and continue seeking modification, alternatives and financial assistance.

At the very least, the acts and omissions of the State and the delay set forth above

create a fact issue as to whether the State should benefit from such dilatory conduct

while White Lion is forced into bankruptcy (as was its predecessor, Vision Metals)

attempting to pay the fines and cure damage done to the system by third parties over

whom it had no control. (CR2 83-87, 102-118; Appx. 4, Exs. A, H.) Furthermore,

no governmental function is even implicated, let alone, impaired by a finding of

estoppel in this case. TCEQ continues to oversee the White Lion Property and there

                                         18
is new evidence in the underlying case in the trial court which establishes beyond

question, the great efforts White Lion has made to better the environmental condition

of its property.

                                       PRAYER
      Appellant White Lion Holdings LLC, requests the panel grant this Motion for

Panel Rehearing, and upon rehearing, withdraw the April 9, 2015 panel opinion, and

dismiss this appeal for lack of jurisdiction. Alternatively, White Lion requests that

the Court withdraw the panel opinion, set aside the severance order and remand the

case to the trial court for rejoinder with the case below. White Lion prays for such

further relief to which it may show itself justly entitled.

                                  Respectfully Submitted,

                                  LUCCI SMITH LAW PLLC


                                  By: /s/ Jacqueline Lucci Smith
                                  Jacqueline Lucci Smith
                                  TBA #: 00786073
                                  10575 Katy Freeway, Suite 470
                                  Houston, Texas 77024
                                  Tel.: 832-494-1700
                                  Fax: 832-494-1426
                                  Email: JLS@LucciSmithLaw.com




                                           19
                               BAIN & BAIN PLLC

                               By: /s/ Joan Lucci Bain
                               Joan Lucci Bain
                               TBA #: 01548020
                               10575 Katy Freeway, Suite 405
                               Houston, Texas 77024
                               Tel.: 713-629-6222
                               Fax: 713-629-6226
                               Email: JBain@BainandBainlaw.net

                         CERTIFICATE OF SERVICE

      I certify that a copy of this Motion for Panel Rehearing was served on
counsel for the State, Craig Pritzlaff, by email on June 12, 2015.


                                                   /s/ Jacqueline Lucci Smith
                                                   Jacqueline Lucci Smith


                     CERTIFICATE OF COMPLIANCE

       I certify that the computer program used to prepare this document counted
4015 words in the pertinent parts of the document in accordance with TRAP
9.4(i)(2)(D).


                                                   /s/ Jacqueline Lucci Smith
                                                   Jacqueline Lucci Smith




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