                                                                               ACCEPTED
                                                                          14-15-00194-CV
                                                            FOURTEENTH COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                                                    4/16/2015 10:04:18 AM
                                                                      CHRISTOPHER PRINE
                                                                                   CLERK

                      NO. 14-15-00194-CV

                                                  FILED IN
                                           14th COURT OF APPEALS
IN THE COURT OF    APPEALS FOR THE FOURTEENTHHOUSTON,
                                                JUDICIAL  TEXAS
                     DISTRICT OF TEXAS     4/16/2015 10:04:18 AM
                                           CHRISTOPHER A. PRINE
                                                    Clerk

                       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
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
                               No. 14-15-00194-CV


VICNRGLLC,                              §           IN THE COUIRT OF APPEALS
    Appellant                           §
                                        §
v.                                      §
                                        §           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
                    Appendix
Document No.                       Document
                    Page No.

      1                 3          Declaration of Peter Bagley

      2                 5         Order for Interlocutory Summary Judgment
                                  FCStone's Motion to Sever with Proposed
      3               7-16
                                  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,                                     §            IN THE COUIRT OF APPEALS
     Appellant                                 §
                                               §
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
                                                                             217/2014 3:35:34 PM
                                                                             Chris Daniel • District Clerk
                                                                             Harris County                 ·
                                                                             Envelope No: 415458
                                                                             By: JIMENEZ, DANIELLE N

                                     CAUSE NO.    ~!   !JOI !64t

     VICNRGLLC,                               §        IN THE DISTRICT COURT OF
                                              §
            PLAINTIFF                         §
                                              §
     VS                                       §
                                              §
                                              §        HARRIS COUNTY, TEXAS
     FUEL STREAMERS INC.,                     §
     GREEN DIESEL, LLC,                       §
     FCSTONE, LLC,                            §
     FCSTONE TRADING, LLC AND                 §
     FCSTONE GROUP, INC,                      §
                                              §
           DEFENDANTS.                        §
                                              §        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.
-
._
0




                                                                                              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,                                      §        IN THE DISTRICT COURT OF
                                                 §
       PLAINTIFF.                                §
                                                 §
vs.                                              §
                                                 §
                                                 §        HARRIS COUNTY, TEXAS
FUEL STREAMERS INC.,                             §
GREEN DIESEL, LLC,                               §
FCSTONE, LLC,                                    §
FCSTONE TRADING, LLC AND                         §
FCSTONE GROUP, INC.                              §
                                                 §
       DEFENDANTS.                               §
                                                 §        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 VicNRG 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 VicNRG 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,                                           §   IN THE DISTRICT COURT OF
                                                     §
       PLAINTIFF.                                    §
                                                     §
vs.                                                  §
                                                     §
                                                     §   HARRIS COUNTY, TEXAS
FUEL STREAMERS INC.,                                 §
GREEN DIESEL, LLC,                                   §
FCSTONE, LLC, ·                                      §
FCSTONE TRADING, LLC AND                             §
FCSTONE GROUP, INC.                                  §
                                                     §
       DEFENDANTS.                                   §
                                                     §   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          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 Venue of Defendants

     01/28/2013          Plaintit'rs Motion to Reconsider Order Transferring Venue

     01/28/2013          Defendants FCStone, LLC, and FCStone Trading, LLC's Response to
                         Plaintiffs Motion to Reconsider Order Transferring Venue

     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

     l I/14/2013         Second Amended Petition

     11/22/2013          Plaintiffs 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 Plaintiffs Second Amended Petition

     02/05/2014          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 012
02/07/2014    FCStone'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 Plaintiffs Motion for
              Expedited Hearing of the Same

02/17/2014    FCStone's Designation of Expert Witnesses

02/J 8/2014    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

02/21/2014     Withdrawal of Motion to File Under Seal

02/27/2014     VICNRG's Unopposed Motion for Continuance of Trial Setting

03/07/2014     PlaintiffVICNRG LLC's Response to FCStone's Traditional and No-
               Evidence Motion for Summary Judgment

03/07/2014     Plaintiffs Objections to FCStone's Summary Judgment Evidence

03/07/2014     VICNRG's Motion to file Under Seal Pursuant to Protective Order

03/11/2014     FCStone Defendants' Objections to VICNRG's Summary Judgment
               Evidence

03111/2014     Response to VICNRG's Objections to FCStone's Summary Judgment
               Evidence

03/\ 1/2014    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 Summary Judgment

03/18/2014     FCStone Defendants' Motion for Leave to File Additional Summary


                                     7


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

                                                                                           Judgment Evidence

               03/25/2014                                                                  Rule 1 I Agreement Extending Discovery

               03/25/2014                                                                  VICNRG's Withdrawal of Motion to File Under Seal Pursuant to
                                                                                           Protective Order

               03/28/2014                                                                  Response to VlCNRG's Surreply to FCStone's Traditional and No-
                                                                                           Evidence Motion for Summary Judgment

               03/28/2014                                                                  PlaintiffVICNRG LLC's Post~Hearing Brief

               04/04/2014                                                                  Plaintiff VICNRG LLC's Response to FCStone's Traditional and No-
                                                                                           Evidence Motion for Summary Judgment

               06/03/2014                                                                  Notice of Oral Hearing on FCStone's Motion for Protection and to
                                                                                           Quash Notices of Deposition

               06/03/2014                                                                  FCStone's Motion for Protec.tion 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

               06117/2014                                                                  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 Sur-Reply to FCStone's Motion for Protection
                                                                                           and Reply in Support ofVICNRG LLC's Motion to Compel
                                                                                           Depositions_

               07/30/2014                                                                  Rule l l Agreement re extension deadlines & setting of deadlines

                 8/0l/2014                                                                 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,                                        §       IN THE DISTRICT COURT OF
                                                  §
       PLAINTIFF.                                 §
                                                  §
vs.                                               §
                                                  §
                                                  §       HARRIS COUNTY, TEXAS
FCSTONE, LLC,                                     §
FCSTONE TRADING, LLC AND                          §
FCSTONE GROUP, INC.                               §
                                                  §
       DEFENDANTS.                                §
                                                  §
                                                  §
                                                  §       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
                                                                      Harris County            ~
                                                                      Envelope No: 2946244
                                                                      By: FORD, DAVIA       ·         ·

                                     Cause No. C-201305124

VICNRGLLC,

       PLAINTIFF.
                                                     §
                                                     §
                                                     §
                                                         IN THE DISTRICT COURT OF               Ab
                                                     §
vs.                                                  §
                                                     §
                                                     §   HARRIS COUNTY, TEXAS
FUEL STREAMERS INC.,                                 §
GREEN DIESEL, LLC,                                   §
FCSTONE, LLC,                                        §
FCSTONE TRADING, LLC AND                             §
FCSTONE GROUP, INC.                                  §
                                                     §
       DEFENDANTS.                                   §
                                                     §   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




                                                                                  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   FCStone 1s 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 No-
             Evidence 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 Defend 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
                                                                                                 2/20/201512:46:16 PM
                                                                              Chris Daniel - District Clerk Harris County
                                                                                                  Envelope No. 4228668
                                                                                                  By: Phyllis Washington
                                         Cause No. 201305124B                             Filed: 2/20/2015 12:46:16 PM




VICNRGLLC,                                       §             IN THE DISTRICT COURT
       Plaintiff                                 §
                                                 §
v.                                               §             HARRIS COUNTY, TEXAS
                                                 §
FCSTONE, LLC, FCSTONE TRADING,                   §
LLC and FCSTONE GROUP, INC.,                     §
        Defendants                               §•
                                                 §              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.


                                                             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



NOTICE OF APPEAL                                                                               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

       ON THIS DAY the Court considered the Motion for Entry
                                                                                         if*
                                                                                     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 well-
taken and should be GRANTED. Accordingly, it is
                                 .                                       h~
                                                                         Q
       ORDERED, ADJUDGED and DEC? that FCStone's Traditional and No-

Evidence 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

                      U, further,
causes of action against FCStone.

       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 O2015
            nme:..
                  -iAr.1i7irrri.'aEco::::u':intr,=',":;:::re~xu~-
            BY._ _ _n:::=.::::---                                                                 Appendix 027
                                 Deputy
DOCUMENT7




            Appendix 028
                                                                                            2/4/201511:10:05AM
                                                                       Chris Daniel - District Clerk Harris County
                                                                                           Envelope No. 4015284
                                                                                          By: DANIELLE JIMENEZ
                                                                                     Filed: 2/4/201511:10:05AM

                                Cause No. 201305124-B


VICNRGLLC,                                  §           IN THE DISTRICT COURT
     Plaintiff                              §
                                            §
v.                                          §           HARRIS COUNTY, TEXAS
                                            §
FCSTONE, LLC,                               §
FCSTONE TRADING, LLC and                    §           334TH DISTRICT COURT
FCSTONE GROUP, INC.,
     Defendants



        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   I1

                                                                                 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   I2

                                                                                 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   I3

                                                                                   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   I4

                                                                                 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   I5
                                                                                  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   I6

                                                                              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   I7

                                                                               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   I8

                                                                              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   I9

                                                                            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                                    §                                   ·.::;:
                                                                                               I
v..                                                     §
                                                        §                                    -
                                                                                             ·>-
                                                                                              ' ;:)
                                                                                            . c-
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                                      §              334TH 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
                                            Cause No. C-201305124


VICNRGLLC,                                         §
               Plaintiff                           §
                                                   §
v.                                                 §
                                                   §
 GREEN DIESEL, LLC,                                §
·PHILIP J. RIVKIN,                                 §
 FUELSTREAMERS GROUP,                              §
 FUEL STREAMERS, INC.,                             §            HARRIS COUNTY, TEXAS
 GREEN DIESEL, LLC,                                §
 GREENDIESEL TRADING S.A.,                         §
 PETRO-ETHANOL LLC,                                §
 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 I2

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,                                   §       IN THE DISTRICT COURT OF
                                             §
           PLAINTIFF                         §
                                             §
vs                                           §
                                             §
                                            §        HARRIS COUNTY, TEXAS
FUEL STREAMERS INC.,                        §
GREEN DIESEL, LLC,                          §
FCSTONE, LLC,                               §
FCSTONE TRADING, LLC AND                    §
FCSTONE GROUP, INC,                         §
                                            §
          DEFENDANTS.                       §
                                            §        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.




                                                                                            EXHIBIT

DA! 804048v l                                                                                  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
                                                                 ~®f
                                    ENERGY LLC
                                                                                              ?~
                                                                                             ~)
 Severance Case Status (check one)                   FINAL                      X PENDOO:ci                       OTHER
                                                                                        o~""
Disposal Code                                            or                  Act1v1ty   ~~
                                                     .                           .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!\                 ~
                                       COSTS/MISCEL~~fJUS FEES                                               •.   _     '~~~ , ~
                                                              -~~
                                                                  .~                                               ~
                                                                                                                    ~
                                                                                                                               .
                                                                                                                          .... ~
                                                                                                                           ~;,.v•
Receipt Number                    Fee·      $            (j~l?J'escnpt1on                                                   ~~~
                                                              ~                                                        ~       ~·~
                                                          "-.J/                                                                    Q ~.AA
Transaction Number                Fee Code      ~~                Description                   Amount                  ~ f'          ~
                                                ~                                                                        ~
Receipt Number. _ _ __               Fee·   $   '~                Description                   Amount
                                                0
Transaction Number                   Fee[~--­
                                      ,n~
                                                                  Description· _ __
                                        ~·
COSTS OF SUIT ASSESSED TO: ~                                        COSTS OF CERTIFIED COPIES ASSESSED TO:
                                  ~i)
Name    Daniel Blumberg rF ~                                            Amount N/A
Address 1119 West Ran ofMfll Road #101                                  Address N/A
        Arlin on TX 7     2
             #02512985   .ry
                    ~~
                     ~
Danielle N. Jimene~ ·                                               JUHK7                                4.3.2014
Clerk   Prepann~~                                                    FCN                                   Date
               ~

Assessment Clerk                                                       FCN                                 Date


Adjustment Clerk                                                       FCN                                 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)

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

                     <:~
               ~)
                 #                              GRANT DORFMAN
                                                Judge, 334TH DISTRICT COURT
            ~
CASE - 201305124A    FILED - 20130128  COURT - 334th
TYPE - DAMAGES (OTH)
VICNRG LLC (A TEXAS VS GREEN DIESEL LLC (A




                                                           2512985
   DANIEL EDWARD BLUMBERG
   2304 WEST INTERSTATE 20, SUITE 190
   ARLINGTON, TX 76017                                                                .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,                                    §                    IN THE DISTRICT COURT
    Plaintiff                                 §
                                              §
V.                                            §
                                              §
PHILIP J. RIVKIN,
FUELSTREAMERS GROUP,
                                              §
                                              §                              p~~
                                                                             u)   *
                                                                                 r(l)~
GREENDIESEL TRADING S.A.,
PETROE'I'HANOL LLC,
PETRO CONSTRUCTORS PVf, LTD.,
PETRO CONSTRUCTORS LLC,
STERLING ENERGY LLC,
      Defendants
                                              §
                                              §
                                              §
                                              §
                                              §
                                              §                    Q
                                                                    ¢,
                                                                    ---y
                                                                   HA RRT~UNTY, TEXAS




                                              §             ¢~                              .


                                              §            . . §!!J 334TH DISTRICT COURT
                                                      ~i!(Qj
                                                 ¢   <?@

                             PLAINTIFF'S 4 o N TO RETAlN
                                          1' /
                           (Q;
TO THE HONORABLE JUDGE OF.~D COURT:
.                .     ~v,
       Plaintiff VicNRG LLC 0~RG)
                            \.~fl
                                  files this, its Motion to Retain, and in support of

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


                                                                                                Page   I1
                                                                       EXHIBIT


                                                               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@@~
                                                         Q        other entities that are affiliated

\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~
            . ~
t h ese parties. <~a case m
                          .   .
                            pomt, t I1e recetver
                                            .    recent1y h-1 ecl an App 1·1catlon
                                                                               . 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   I2

                                                                                            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-ba 0 1ev.com
                                                  ~
                                                ~(J
                                             '('\)~
                                             ~I
                                         . ®>
                                       <t~
                                     -~
                                     Q
                                 ·c\
                                1M
                              u"d'
                             ~~,
                      o~
                  e.'0_<tJ
                r'O.~
             ~
           ~~




                                                                                       Page   I3

                                                                                   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                                                                                 \
                              &~
               ~ff-
               i -~ ALISOH M \:~~                     /           \,                  GJ0Y
                                                                  otary Pubhem and or th ~
                                                                            .j .  . tor

               J~~*) Hor~YP srAIEOF~                             State of Texas
               ) ~_§;
                                  12    l!l>'lflnr
              'N.--;-,.,.,,.           -20 "1 6

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

               ~
          ~~




                                                                                                                                  Page   I4

                                                                                                                               Appendix 054
                                                                     7/18/2014 2:16:58 PM
                                                                     Chris Daniel - District Clerk
                                                                     Harris County
                                                                     Envelope No: 1874335
                                                                     By: JIMENEZ, DANIELLE N



                                  Cause No. 201305124A


VICNRGLLC;                                                IN THE DISTRICT COURT
     Plaintiff

v.

PHILlP J.RIVKIN,
FUELSTREAMERS GROUP,
GREENDIESEL TRADING S.A.,
PETROETHANOL LLC,
PETRO CONSTRUCTORS PVT, LTD.,
PETRO CONSTRUCTORS LLC,
STERLING ENERGY LLC,
      Defendants




                           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.
                              0
                                     After due consideration, the Court finds that

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())                                                        \

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



                                                                                      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,                                            §       IN THE DISTRICT COURT OF
                                                       §
         PLAINTIFF.                                    §
                                                       §
 vs.                                                   §
                                                       §
                                                       §       HARRISCOUNTY~XAS
 FUEL STREAMERS INC.,                                  §                            ~<©
 GREEN DIESEL, LLC;                                    §        .               ~~
 FCSTONE, LLC,                                         §                        ~
 FCSTONE TRADING, .LLC AND                             §                    o~
 FCSTONE GROUP, INC.                                   §
                                                       §
                                                                     '~
                                                                    ofJ:,c:!J
       · DEFENDANTS.                                   §            ~
                                                       §       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

                                                                                                    Appendix 056
                                                                                                j       '
 (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                             David Hoffman (admitted pro hac vice)
                        t~Y
                    r.;).~'0                                 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                     *
                                                                  couns~iV"icNRG
        I certify that the undersigned counsel. contacted Peter Bagley,             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 61h 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                                                      ·(]
                                                                                <*
                                                                               fjf
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
                                                       Qqpj
Fettner Thompson
6700 Sands Point Dr.                              )~
Houston, Texas 77074
Tel: (713) 626-7277                             fF
                                               ~~
Fax: (888) 876-2292                        ©~
James T. Drakeley
R. Scott Seifert                ~~
                                     £,#(®:i
Hiersche, Hayward, Drakeley &.~ch, P.C.
15303 Dallas Parkway, Suite 70~
Addison, Texas 75001        ~

Ashish Mahendru       ~
                          u©
                          1-l.
Mahendru P.C.      0 {!$}

111 Bagby, Suite 22~
Houston, Texas  77/!ff}
                ~)
           ~~·

                                                      By:/s/ Mark K. Glasser




                                                4 .

                                                                                       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,                                        §           IN THE DISTRICT COURT OF
                                                  §
       PLAINTIFF.                                 §
                                                  §
vs.                                               §
                                                  §
                                                  §           HARRISCOUNTY~XAS
FCSTONE, LLC,                                     §                         p~r@
FCSTONE TRADING, LLC AND                          §                         u)
FCSTONE GROUP, INC.                               §                         ~
                                                  §                        o~
       DEFENDANTS.                                §                   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*~
                                  ()l') the various replies, surreplies, and objections to
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,                                            §          IN THE DISTRICT COURT OF
                                                      §
       PLAINTIFF.                                     §
                                                      §
vs.                                                   §
                                                      §
                                                      §          HARRISCOUNTY~XAS
  FUEL STREAMERS INC.,                                §                             ?~<@
  GREEN DIESEL, LLC,                                  §                             ~)
. FCSTONE, LLC,                                       §                            ~

                                                  ·~                       ~
  FCSTONE TRADING, LLC AND
  FCSTONE GROUP, INC.
                                                      ·§                  o~
       DEFENDANTS.                                    §               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.
                                  1                                   .

       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 0~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:

                                                                                                    EXHIBIT
                                                  5

                                                                                                     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 No-
                     Evidence 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

           Ak~
                     Summary Judgment

    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 No-
                             Evidence 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 No-
                             Evidence 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
                                                                                                                               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


                                                          Cause No. 201305124


VICNRGLLC,                                                              §              IN THE DISTRICT COURT
     Plaintiff-                                                         §
                                                                        §
v.                                                                      §              HARRIS COUNTY, TEXAS·
                                                                        §
                                                                                       ..                     -~
GRE~N DIESEL, LLC and                                                   §
FUEL STREAMERS, INC.,                                                   §              334TH.nrs~ COURT
      Defendants
                                                                                                    ~
                                                                                                o~rt:J.
                                                                                            0: '""»
     .                                             .                                       o0                 .          .               .
   PLAINTIFF'S REQUEST FOR ADDITIONAL DOC~ TO BE INCLUDED AS
 .        .
                .
                   .   RECORDS IN SEVERED C~E ·         ·
                                                                                 .   0~~    .



.                                              .                                ~
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
                                   Appendix of Unpublished Legal Authorities in Support ofVicNRG's
3-7-14
                                  .Response
                                   Appendix of Unpublished Legal Authorities in Support ofVicNRG's ·
3-13-14
                                   Surreply
                                   Order Denying Protection from Discovery Request/Compelling
6-30-14
                                   Deposition Appearance


                                                                                                  a'@!~
7-14-14                           Plaintiff's Supplemental Designation of Experts
10-10-14                          VicNRG's Request for Additional Documents
                                                                                              '
                                                                                              ~
                                                                                           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 .
                                                    re,~~
                                                         ./W
                                                    ~~~
                                                  '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   I2


                                                                                                          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~~
                                                             <>~                 .

                                                fore~o~·
       l .hereby certify that true copies of :iie     Ja ®aintiff' sReq~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
               .           . v
      Co-Counselfior Plaint1iff Vi        LLC;

      VIA ELECTRONIC S;i;fVICE
      Mr. W. Joel Bryant 1 ~ »
      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   I3

                                                                                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   I4

                           Appendix 069
,.   '
                                                                                   10/24/201412:06:05 PM
                                                                                   Chris Daniel • District Clerk
                                                                                   Harris County            ~
                                                                                   Envelope No: 2946244
                                                                                   By: FORD, DAVIA

                                              Cause No. C-201305124

         VICNRGLLC,

                   PLAINTIFF.
                                                                  §
                                                                  §
                                                                  §
                                                                      IN THE DISTRICT COURT OF              Ab
                                                                  §
         vs.                                                      §
                                                                  §
                                                                  §   HARRIS COUNTY, TEXAS
         FUEL·STREAl\{ERS INC,                                    §
         GREEN DIESEL, LLC, .                                     §
         FCSTONE, LLC,.                                           §
         FCSTONE TRADING, LLC AND                                 §
         FCSTONE GROUP, INC.                                      §
                                                                  §
                   DEFENDANTS.                                    §
                                                                  §   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
                                                                                                EXHfBIT

                                                                                          I ti
                                                                                             Appendix 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 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 No-
             Evidence 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
                                               TRANSMITIAL FORM FOR SEVERANCES

.......   COMPLETE THIS FORM AND ATTACH COPY OF SEVERANCE ORDER TO THE INSIDE OF THE FILE JACKET;
0
(\J        FORWARD FILE TO CIVIL INTAKE. THIS FORM MUST REMAIN WITH THE FILE UNTIL FEE ADJUSTMENT
......
"'
(\J
......
                                         HAS BEEN COMPLETED BY FEE ACCOUNTING.
0
....
              Severance Cause Number: 2013-051248                          Court: 3341 H                     Case Type: Severance
i>1
IH··
~             Original File Date: 1.28.2013                                       Date Severance Order Signed: 10.29.2014
~
H

""0i>1          STYLE: VICNRG LLC       VS.      FCSTONE, LLC; FCSTONE TRADING, LLC;                        FCSTO~ROUP,      INC
~
H         Severance Case Status (check onel:                    FINAL                   .      X       PENDING.~                  OTHER
""z                                                                                                             r~
                                                                                                       Co~Q--------
0
u
          Disposal Code: - - - - - - - - -                       or                         Activity
                                   .                                                                    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
          Receipt Number: _ _ __               Feeo $.                 .
                                                                           0
                                                                               ~V,ptlon: _ __                    Amount: _ _ __

          Transaction Number: _ __ Fee·cd
                                        o e:                     ·-~
                                                                   ..
                                                            ~~escnpt1on:                        _ __             Amount: _ _ __

          Receipt Number: _ _ __               Fee: $
                                                                 0
                                                                S0z ~          Description:                      Amount: _ _ __
                                                        --~~%~                                 ---
          Transaction Number: _ __             Fee Code:@?                     Description: _ __                 Amount:   ----
                                                         rt:)
          COSTS.OF SUIT ASSESSED TO:                    ~,                       COSTS OF CERTIFIED COPIES ASSESSED TO:

          Name:    Mark Glasser         ~\
                                                 0                                  Amount: . N/A
          Address: 1000 Lou_isiana #600();~                                         Address: N/A
                   Houston, tx 77002\Q'i~
                   #8014500            ()

          Danielle N. Jimenez    ?J.~                                                                                  12.2.2014
          Clerk Preparing Fo~                                                     FCN                                      Date

          ·~                                         . . JU<l&\                                                       L+'q· 1y
          ~ ~'t\tf3~                                                              FCN          .
                                                                                                                           Date      ·

          Adjustment Clerk                                                        FCN                                      Date


                                                                                 FILED
                                                                                    Chris Daniel
                                                                                    District Clerk

                                                                                   OCT 2 9 2014
                                                                     Ttme:_~-=--=--:--=--~­
                                                                                    Harris County, Texas
                                                                                                                              EXHIBIT
                                                                     BY.~----~--~~
                                                                           Deputy                                     }
                                                                                                                      SJ
                                                                                                                      B
                                                                                                                                   /J
                                                                                                                            Appendix 075
Office of Harris County District Clerk - Chris Daniel I Search Our Records                                                                                                       Page 1 of 2




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    *'      Historical Documents                 201305124- 7
                                                                     VICNRG LLC (A TEXAS LIMITED
                                                                                                                                                         PLEA OF




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                                                                     LIABILITY CO vs. GREEN DIESEL                 112812013 334           Civil                               <!;.~'
                                                 Ready Docket                                                                                            PRIVILEGE
                                                                     LLC (A DELAWARE LIMITED LIA
            How to Contact Us
                                                              VICNRG LLC (A TEXAS LIMITED

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

            Order History




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

                                                                                                                                                     l'f                Appendix 076

htto://www.hcdistrictclerk.com/Edocs/Public/search.asox                                                                                                                                             2/3/2015
DOCUMENT 8




             Appendix 077
                                                                                                                                             14-1 o-uu Hl4-Ll
                                                                                                                          FOURTEENTH COURT OF APPE
                                                                                                                                      HOUSTON, TEX.
                                                                                                                                    3/9/2015 2:09:47 p
                                                                                                                                    CHRISTOPHER PF
                                                                                                                                                 CLEF


                                                          Blumberg & Bagley, L.L.P.
                                                                                    Attorneys
                                                                    2304 West Interstate 20, Suite 190
                                                                         Arlington, Texas 76017
                                                                       www.blumbergbagley.com

Peter F. Bagley                                                                                                             (817) 277-1500
Board Certified, Consumer and Commercial Law, Texas Board of Legal Specialization                                 Facsimile (817) 277-1170
Fellow, College of the State Bar of Texas




                                                                                                  March 9, 2015

Mr. Christopher Prine
Deupty Clerk
14th Court of Appeals
Harris County District Clerk
301 Fannin, Suite 245
Houston, Texas 77002

               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
                                                     Yours sincerely,

                                                     Isl Peter F. Bagley
                                                     Peter F. Bagley
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
      FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc.




                                                                           Appendix 079
DOCUMENT9




            Appendix 080
                                                                                                               14-1 o-uu 1 84-L;
                                                                                           FOURTEENTH COURT OF APPE
                                                                                                       HOUSTON, TEX,
                                                                                                    3/12/2015 4:08:35 p
                                                                                                     CHRISTOPHER PF
                                                                                                                  CLEF


                                          CAUSE NO. 14-15-00194-CV

                                                      §     IN THE 14th COURT OF APPEALS
VICNRGLLC,                                            §
       Plaintiff                                      §
                                                      §
v.                                                    §
                                                      §
FCSTONE, LLC, FCSTONE TRADING,                        §
LLC and FCSTONE GROUP, INC.,                          §     HOUSTON, TEXAS
        Defendants



                       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.                                                    §         OF HARRIS COUNTY, TEXAS
                                                      §
GREEN DI-ESEL, LLC, et al.                            §         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 h J '
                                                       . <Q>
        ORDERED, ADJUDGED and DEC? that FCStone's Traditional and No-

Evidence 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
                    U, further,
causes of action against FCStone.

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

related to its defense   her~ is, further,
        ORDERED,-,       :cfU
                         ~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
                                                                                     -
                        MAR 1O2015                                               EXHIBIT
               nme:.
              BY,
                         H•rrf• County, ntxu
                             Deputy
                                                                           I        I    Appendix 084
DOCUMENT 10




              Appendix 085
                                                                                                 3/12/2015 8:54:26 AM
                                                                            Chris Daniel - District Clerk Harris County
                                                                                                Envelope No. 4467911
                                                                                                By: Phyllis Washington
                                       Cause No. 201305124B                               Filed: 3/12/2015 8:54:26 AM




VICNRGLLC,                                     §             IN THE DISTRICT COURT
       Plaintiff                               §
                                               §
v.                                             §             HARRIS COUNTY, TEXAS
                                               §
FCSTONE, LLC, FCSTONE TRADING,                 §
LLC and FCSTONE GROUP, INC.,                   §
        Defendants                             §
                                               §             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.


                                                           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




NOTICE OF APPEAL                                                                             Page 1J

                                                                                       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
