                                                                                                                   ACCEPTED
                                                                                                               01-18-00307-CV
                                                                                                    FIRST COURT OF APPEALS
                                                                                                            HOUSTON, TEXAS
                                                                                                             5/25/2018 9:53 AM
                                                                                                         CHRISTOPHER PRINE
                                                                                                                        CLERK


                           WOLFGANG P. HIRCZY DE MINO, PH.D.
May 25,2018                                                                                FILED IN
                                                                                    1st COURT OF APPEALS
Hon. Clerk of the First Court of Appeals                                                HOUSTON, TEXAS
301 Fannin Street                                                                   5/25/2018 9:53:06 AM
Houston, Texas 77002-2066
                                                                                    CHRISTOPHER A. PRINE
                                                                                            Clerk
RE: Court of Appeals Number: 01-18-00307-CVTrial Court Case Number: 2017-30978
Style: Wolfgang P. Hirczy De Mino, PH .D. v. Star Operations., Inc., Lana L. Lewis and Victor C. Huff, Jr.


TO THE HONORABLE CLERK OF THE COURT OF APPEALS:

        In response to Justice Caughey's order dated May 22, 2018, attached please find a certified copy

of the Request for the [Limited] Clerk's Record, and certified copies of the documents listed therein except

for the Cost Statement, which was not available for download.

        One document has been added to those requested: ORDER SIGNED GRANTING TRIAL

CONTINUANCE (Image. No. 79693284), which Judge McFarland signed April 27, 2018, a date after the

request for the clerk's record was filed on April 19, 2018. I am enclosing this recent trial court order to

show that the case is nowhere close to resulting in a final judgment. Payment proof for the certified copies

is also attached.

        I apologize for the error in the reference to the notice of appeal on the Request for the Clerk's

Record. It should have read April, not August. The image number, however, is correct. The notice is

actually denominated Notice of Intent to Appeal (rather than plainly Notice of Appeal), reflecting the

uncertainty as to whether the summary judgment order was appealable at the time.

        I hope this evidence in the form of certified copies will suffice for the Court to determine that it

lacks jurisdiction to entertain an interlocutory appeal of the objected-to summary judgment order at this

time. Should the Court make a contrary determination, I am prepared to proceed to brief the issues to be

raised regarding the summary judgment order that forms the basis of my complaint about it.

                                                 Respectfully submitted,

                                                 /s/ ']1/0£'yY'P.
                                                               A JVY'
                                                                  YI/:R,C
                                                                       O       ZY VI.Jl1DV
                                                 WOLFGANG P. HIRCZY DE MINO, Ph. D.
                                                 wphdmphd@gmail.com
                                                 P.O. Box 521
                                                 Bellaire, Texas 77402-0521
                                                 Tel.: (713) 806-0718
                                                 Prospective Appellant

cc: David L. Smith (Prosperity Bank), Ranald Scott Calili {Defendant Star Operations, et all
                                 INDEX OF CERTIFIED COPIES


A.     Request for the Clerk’s Record, filed April 19, 2018. Image No. 79586255

B.     Order Granting Defendants’ Motion for Summary Judgment signed March 12, 2018, which is
       labeled “ORDER FOR INTERLOCUTORY SUMMARY JUDGMENT SIGNED” on the docket. Image No.
       79014804

C.     Order Striking Plea in Intervention (on motion of Prosperity Bank) signed February 6, 2018,
       which is labeled “ORDER SIGNED STRIKING PLEADING” on the docket. Image No. 78502905

D.     Plaintiff's Motion to Strike Plea in Intervention filed August 16, 2017. Image No. 76375521

E.     Plea in Intervention and Motion To Abate Summary Judgment Motion filed August 14, 2017.
       Image No. 76334527

F.     Notice of Intent to Appeal efiled April 14, 2018, file-stamped April 16, 2018. Image No.
       79495685

G.     Order Granting Opposed Motion for Continuance, signed April 27, 2018, which is labeled ORDER
       SIGNED GRANTING TRIAL CONTINUANCE on the docket. Image No. 79693284



Note: As evidenced by the order granting trial continuance, there is no final judgment, and there are
      no post-judgment motions or findings of fact.
                                                                                                                                                           4/19/2018 10:28 AM
                                                                                                                                    Chris Daniel - District Clerk Harris County
                                                                                                                                                      Envelope No. 24010055
                                                                                                                                                            By: Duane Gilmore
                                                                                                                                                   Filed: 4/19/2018 10:28 AM

                                                                                                No. 2017-30978

                                                    PROSPERITY BANK                                      §            IN THE DISTRICT COURT
                                                                                                         §
                                                    V.                                                   §
                                                                                                         §            OF HARRIS COUNTY, TEXAS
                                                    STAR OPERATIONS, INC.                                §
                                                    VICTOR C. HUFF, JR.                                  §
                                                    LANA L. LEWIS                                        §            133RD JUDICIAL DISTRICT
                                                                                                         §


                                                                                     REQUEST FOR THE CLERK’S RECORD

                                                              The undersigned hereby requests that the Clerk prepare the Clerk’s Record for appellate
                                                    cause number 01-18-00307-CV,1 pending in the First Court of Appeals, and include the following
                                                    trial court documents:
                                                              1. Order Granting Defendants’ Motion for Summary Judgment signed March 12, 2018,
                                                                  which is labeled “ORDER FOR INTERLOCUTORY SUMMARY JUDGMENT SIGNED” on
                                                                  the docket. Image No. 79014804
                                                              2. Order Striking Plea in Intervention (on motion of Prosperity Bank) signed February 6,
                                                                  2018, which is labeled “ORDER SIGNED STRIKING PLEADING” on the docket. Image No.
                                                                  78502905
                                                              3. Plaintiff's Motion to Strike Plea in Intervention filed August 16, 2017. Image No.
                                                                  76375521
                                                              4. Plea in Intervention and Motion To Abate Summary Judgment Motion filed August 14,
CertifiedDocumentNumber:79586255-Page1of2




                                                                  2017. Image No. 76334527
                                                              5. Docket Sheet
                                                              6. Notice of Appeal efiled August 14, 2018, file-stamped August 16, 2018. Image No.
                                                                  79495685
                                                              7. This Request for the Clerk’s Record


                                                    1
                                                        Wolfgang P. Hirczy de Mino, Ph. D. v. Star Operations, Inc. et al.
                                                        http://www.search.txcourts.gov/Case.aspx?cn=01-18-00307-CV&coa=coa01

                                                                                                       Page 1
                                                           8. Cost statement
                                                           Please send an email to wolfganghirczy@gmail.com to advise as to the total cost for
                                                    preparation of this record.


                                                                                                Respectfully submitted,

                                                                                                /s/ WOLFGANG P. HIRCZY DE MINO
                                                                                                WOLFGANG P. HIRCZY DE MINO, Ph. D.
                                                                                                Wolfganghirczy@gmail.com
                                                                                                P.O. Box 521
                                                                                                Bellaire, Texas 77402-0521
                                                                                                Tel.: (713) 806-0718


                                                                                     CERTIFICATE OF SERVICE
                                                            The undersigned hereby certifies that on April __19__, 2018 this request is being served
                                                    contemporaneously on the attorneys of record of all parties as identified below through the
                                                    EfileTexas.gov system.

                                                           Mr. Ranald Scott Calili
                                                           Mr. James B. Heston
                                                           HESTON LAW FIRM, PLLC
                                                           607 Park Grove Drive, Ste. B
                                                           Katy, TX 77450
                                                           Tel.: (713) 270-4833
                                                           Fax: (713) 583-9296
                                                           attorney@hestonciment.com
                                                           Attorneys for Defendants / Third-Party Defendants
                                                           Star Operations, Inc., Lana L. Lewis,
                                                           and Victor C. Huff, Jr.
CertifiedDocumentNumber:79586255-Page2of2




                                                           Mr. L. David Smith
                                                           CHERNOSKY, SMITH, RESSLING & SMITH, PLLC
                                                           4646 Wild Indigo, Suite 110
                                                           Houston, Texas 77027
                                                           Tel.: (713) 800-8604
                                                           Fax: (713) 622-1026
                                                           Email: smith@csrslaw.com
                                                           Attorney for Plaintiff PROSPERITY BANK

                                                                                                         /s/ WOLFGANG P. HIRCZY DE MINO
                                                                                                         WOLFGANG P. HIRCZY DE MINO
                                                                                                Page 2
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this May 25, 2018


     Certified Document Number:        79586255 Total Pages: 2




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
                                                                                                                                                                    4/14/2018 10:24 AM
                                                                                                                                             Chris Daniel - District Clerk Harris County
                                                                                                                                                               Envelope No. 23902347
                                                                                                                                                                By: Phyllis Washington
                                                                                                                                                            Filed: 4/16/2018 12:00 AM

                                                                                                  No. 2017-30978

                                                    PROSPERITY BANK                                        §            IN THE DISTRICT COURT
                                                                                                           §
                                                    V.                                                     §
                                                                                                           §            OF HARRIS COUNTY, TEXAS
                                                    STAR OPERATIONS, INC.                                  §
                                                    VICTOR C. HUFF, JR.                                    §
                                                    LANA L. LEWIS                                          §            133RD JUDICIAL DISTRICT
                                                                                                           §


                                                                                      NOTICE OF INTENT TO APPEAL
                                                                                  OF WOLFGANG P. HIRCZY DE MINO, PH.D.

                                                               It has come to the attention of the undersigned that the Court signed a summary
                                                    judgment on 03/12/2018 that ostensibly dismisses third-party claims of Wolfgang P. Hirczy de
                                                    Mino with prejudice after the Court had granted Prosperity Bank’s motion to strike the Plea in
                                                    Intervention1 that contained third-party claims by Wolfgang P. Hirczy de Mino, Ph.D. and had
                                                    signed an order striking the intervention on 2/6/2018.2
                                                               The order is titled “Order Granting Defendant’s Motion for Summary Judgment” (Image
                                                    No. 79014804).
                                                               Because the Court had struck his plea in intervention on February 6, 2018, Wolfgang P.
                                                    Hirczy de Mino was no longer a party to the case (as Intervenor), wherefore there were no claims
                                                    by him that the Court could have properly entered summary judgment against on March 12,
CertifiedDocumentNumber:79495685-Page1of3




                                                    2018, more than a month later.
                                                               For the same reason, Wolfgang P. Hirczy de Mino had not filed a response to the motion
                                                    for summary judgment. He would otherwise have done so.
                                                               Although the docket reflects that the summary judgment is interlocutory, it nevertheless
                                                    states on its face that it is final and appealable.


                                                    1
                                                        Plea in Intervention and Motion To Abate Summary Judgment Motion, filed 08/14/2017 (Image No. 76334527).
                                                    2
                                                        The summary judgment order includes claims that were not pleaded.

                                                                                                         Page 1
                                                           Wolfgang P. Hirczy de Mino did not have notice of the signing of the summary judgment
                                                    order and only found out about it when he was served with a motion for continuance (Image No.
                                                    79481494) on Friday, April 13, 2018 and looked up the online docket for this case. He offers this
                                                    fact as a reasonable explanation why the notice of appeal was not filed within 30 days of the
                                                    signing of the order that is the subject of the appeal/collateral attack. See Tex. R. App. P. 26.3.
                                                           Wolfgang P. Hirczy de Mino now hereby gives notice that he desires to appeal the
                                                    (purportedly) final and appealable summary judgment signed on March 12, 2018 to the First or
                                                    Fourteenth Court of Appeals.
                                                           There were no prior appellate proceedings involving the same parties.


                                                                                                  Respectfully submitted,

                                                                                                  /s/ WOLFGANG P. HIRCZY DE MINO
                                                                                                  WOLFGANG P. HIRCZY DE MINO, Ph. D.
                                                                                                  Wolfganghirczy@gmail.com
                                                                                                  P.O. Box 521
                                                                                                  Bellaire, Texas 77402-0521
                                                                                                  Tel.: (713) 806-0718


                                                                                       CERTIFICATE OF SERVICE
                                                           The undersigned hereby certifies that on April __14__, 2018 this instrument is being
                                                    served on attorneys of record of all parties as shown below.

                                                           Mr. Ranald Scott Calili
                                                           Mr. James B. Heston
                                                           HESTON LAW FIRM, PLLC
                                                           607 Park Grove Drive, Ste. B
CertifiedDocumentNumber:79495685-Page2of3




                                                           Katy, TX 77450
                                                           Tel.: (713) 270-4833
                                                           Fax: (713) 583-9296
                                                           attorney@hestonciment.com
                                                           Attorneys for Defendants / Third-Party Defendants
                                                           Star Operations, Inc., Lana L. Lewis,
                                                           and Victor C. Huff, Jr.

                                                           Mr. L. David Smith
                                                           CHERNOSKY, SMITH, RESSLING & SMITH, PLLC
                                                           4646 Wild Indigo, Suite 110

                                                                                                   Page 2
                                                    Houston, Texas 77027
                                                    Tel.: (713) 800-8604
                                                    Fax: (713) 622-1026
                                                    Email: smith@csrslaw.com
                                                    Attorney for Plaintiff PROSPERITY BANK

                                                                                                 /s/ WOLFGANG P. HIRCZY DE MINO
                                                                                                 WOLFGANG P. HIRCZY DE MINO, Ph. D.
CertifiedDocumentNumber:79495685-Page3of3




                                                                                        Page 3
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this May 25, 2018


     Certified Document Number:        79495685 Total Pages: 3




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
CertifiedDocumentNumber:79014804-Page1of2
CertifiedDocumentNumber:79014804-Page2of2
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this May 25, 2018


     Certified Document Number:        79014804 Total Pages: 2




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
CertifiedDocumentNumber:78502905-Page1of2
CertifiedDocumentNumber:78502905-Page2of2
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this May 25, 2018


     Certified Document Number:        78502905 Total Pages: 2




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
                                                                                                                                                               8/16/2017 10:26 AM
                                                                                                                                        Chris Daniel - District Clerk Harris County
                                                                                                                                                          Envelope No. 18873301
                                                                                                                                                                   By: Anna Evetts
                                                                                                                                                       Filed: 8/16/2017 10:26 AM

                                                                                                   CAUSE NO. 2017-30978

                                                     PROSPERITY BANK,                                      §        IN THE DISTRICT COURT
                                                       Plaintiff                                           §
                                                                                                           §
                                                     VS.                                                   §
                                                                                                           §        HARRIS COUNTY, TEXAS
                                                     STAR OPERATIONS, INC., VICTOR                         §
                                                     C. HUFF, JR., and LANA L. LEWIS,                      §
                                                       Defendants                                          §        133RD JUDICIAL DISTRICT

                                                                    PLAINTIFF'S MOTION TO STRIKE PLEA IN INTERVENTION

                                                    TO THE HONORABLE JUDGE OF SAID COURT:

                                                             Prosperity Bank, Plaintiff (herein referred to as the "Bank" and/or "Plaintiff") files this its

                                                    Motion to Strike the Plea in Intervention filed by Wolfgang P. Hirczy De Mino, Ph.D., as an alleged

                                                    Third Party Plaintiff and as grounds would show the Court as follows:

                                                             1.        This is a lawsuit brought by Prosperity Bank for collection on a Promissory Note

                                                    executed by Star Operations, Inc., the payment of which has been personally guaranteed by Victor

                                                    C. Huff, Jr., and Lana L. Lewis. Plaintiff has moved for Summary Judgment on its note case.

                                                             2.        The Plea in Intervention filed by Wolfgang P. Hirczy De Mino, Ph.D., alleges that

                                                    he is an unsecured creditor of the Defendants on an open account. The Plea in Intervention, as a

                                                    matter of law shows that the Intervenor has no justiciable interest in this lawsuit and the Intervention

                                                    should be stricken. In Re: Union Carbide Corp., 273 S.W.3d, 152 (Tex. 2008).
CertifiedDocumentNumber:76375521-Page1of2




                                                             WHEREFORE PREMISES CONSIDERED, Plaintiff requests that the Plea in Intervention

                                                    be stricken and for such other and further relief to which Plaintiff may be justly entitled.




                                                    [K:\Wpmain\06111\26717\Motion to Strike.wpd]               1
                                                                                                   Respectfully submitted,

                                                                                                   CHERNOSKY, SMITH, RESSLING & SMITH, PLLC

                                                                                                     /S/ L. David Smith
                                                                                                   L. DAVID SMITH
                                                                                                   TBN: 18639300
                                                                                                   4646 Wild Indigo, Suite 110
                                                                                                   Houston, Texas 77027
                                                                                                   Telephone: (713) 800-8604
                                                                                                   Facsimile: (713) 622-1026
                                                                                                   Email: smith@csrslaw.com
                                                                                                   Attorneys for Prosperity Bank

                                                                                          CERTIFICATE OF CONFERENCE

                                                           On August 14, 2017, I left a voice mail message for the Intervenor and sent him an email
                                                    regarding this Motion. I have had no response and assume that this Motion is opposed.

                                                                                                     /S/ L. David Smith
                                                                                                   L. DAVID SMITH

                                                                                              CERTIFICATE OF SERVICE

                                                            This is to certify that in compliance with Rules 21 and 21a of the Texas Rules of Civil
                                                    Procedure, I, L. David Smith the undersigned, on this the 16th day of August, 2017, have served a
                                                    true and correct copy of the foregoing Plaintiff's Motion to Strike Plea in Intervention all interested
                                                    parties and/or all counsel of record at the name(s) and address(es) indicated below electronically
                                                    through the electronic filing manager and/or via email, and/or 1st Class U.S. Mail and/or facsimile
                                                    and/or certified mail, return receipt requested.

                                                    Mr. James Heston                                             Wolfgang P. Hirczy De Mino
                                                    Mr. Daniel J. Ciment                                         Best Western corpus Christi
                                                    Heston Ciment, PLLC                                          300 N. Shoreline Blvd.
CertifiedDocumentNumber:76375521-Page2of2




                                                    607 Park Grove Drive, Suite B                                Corpus Christi, TX 78401
                                                    Katy, TX 77450                                               and
                                                    Telephone: (713) 270-4833                                    P.O. Box 521
                                                    Facsimile: (713) 583-9296                                    Bellaire, TX 77403-0521
                                                    Email: attorney@hestonciment.com                             Telephone: (713) 806-0718
                                                    Via Electronic Notice                                        Email: Wolfganghirczy@gmail.com
                                                    Counsel for the Defendants

                                                                                                     /S/ L. David Smith
                                                                                                   L. DAVID SMITH




                                                    [K:\Wpmain\06111\26717\Motion to Strike.wpd]             2
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this May 25, 2018


     Certified Document Number:        76375521 Total Pages: 2




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
                                                                                                                                                                8/13/2017 8:21 PM
                                                                                                                                        Chris Daniel - District Clerk Harris County
                                                                                                                                                          Envelope No. 18807952
                                                                                                                                                                 By: Justina Lemon
                                                                                                                                                       Filed: 8/14/2017 12:00 AM

                                                                                              No. 2017-30978

                                                    PROSPERITY BANK                  §                              IN THE DISTRICT COURT
                                                                                     §
                                                    V.                               §
                                                                                     §                              OF HARRIS COUNTY, TEXAS
                                                    STAR OPERATIONS, INC             §
                                                    VICTOR C. HUFF, JR               §
                                                    LANA L. LEWIS                    §                              133RD JUDICIAL DISTRICT
                                                                                     §
                                                                                     §
                                                    WOLFGANG P HIRCZY DE MINO, PH.D. §
                                                                                     §
                                                    V.                               §
                                                                                     §
                                                    STAR OPERATIONS, INC             §
                                                    VICTOR C. HUFF, JR               §
                                                    LANA L. LEWIS                    §

                                                                         PLEA IN INTERVENTION
                                                             AND MOTION TO ABATE SUMMARY JUDGMENT MOTION

                                                           To the Honorable Jaclanel McFarland, District Court Judge:
                                                           COMES NOW WOLFGANG P. HIRCZY DE MINO, PH. D., as THIRD-PARTY PLAINTIFF herein,
                                                    and for cause of action, and grounds for relief, would show the following:
                                                                                       PREJUDICE TO OTHER CREDITORS
                                                           Pending before the Court is Prosperity Bank’s motion for summary judgment, seeking to impose
CertifiedDocumentNumber:76334527-Page1of6




                                                    joint and several liability on STAR OPERATIONS, INC., VICTOR C HUFF, JR., and LANA L. LEWIS for nearly
                                                    $1,000.000.00 on a promissory note and two commercial guaranty agreements.
                                                           The motion is currently set to be heard by submission on Monday, August 14, 2017, at 8 AM.
                                                           Prosperity Bank is not the only creditor.
                                                           Third-Party Plaintiff herein would show that a just adjudication of this case cannot be had in the
                                                    current posture, and that PROSPERITY BANK’s motion is premature.
                                                           In addition to (allegedly) owing almost $1 million dollars to Prosperity Bank, Defendants owe
                                                    money to Third-Party Plaintiff on open account in an amount that is currently less than $15,000 for

                                                           1   PROSPERITY BANK V. STAR OPERATIONS, INC. ET AL
                                                               THIRD-PARTY PLEADING
                                                    professional services and reimbursable expenses, and may owe money to several other current nonparties
                                                    who have no notice of this lawsuit.
                                                             Third-Party Plaintiff has reason to believe, and does believe, that Defendants still have the ability
                                                    to pay, and that the grant of a summary judgment in the Bank’s favor would unfairly prejudice the rights
                                                    of all other creditors under the factual particulars of this case, including the rights of the Third-Party
                                                    claimant to compensation for services rendered and reimbursable expenses.
                                                                                     FACTUAL AND PROCEDURAL BACKGROUND
                                                             PROSPERITY BANK, Plaintiff herein, called a commercial promissory note in the original principal
                                                    amount of $1,248,201.96 executed by STAR OPERATIONS, INC. as maker, and seeks to impose personal
                                                    liability on Defendants VICTOR C. HUFF, JR. and LANA L. LEWIS based on guaranty agreements for the
                                                    entire amount of principal outstanding, plus accrued financed charges.
                                                             The Note has a stated maturity date of December 1, 2019, more than two years from today.
                                                             The case record reflects that PROSPERITY BANK accelerated the Note with minimal or no notice.
                                                    The Bank has given reason to believe that it will promptly procure writs of execution and garnishment to
                                                    collect all amounts owed.1 Grant of summary judgment in favor of PROSPERITY BANK and enforcement
                                                    thereof would prejudice all other third-party creditors, and their ability to collect what is due them, which
                                                    would or could include current wages and compensation for professional services rendered. Undersigned
                                                    Third-Party Plaintiff does not assert a claim for unpaid wages against the Defendants, but others might,
                                                    and would be adversely affected by Prosperity Bank’s preemptive acceleration and foreclosure of the
                                                    commercial note.
                                                             Third-Party Plaintiff prays that the Court either deny Prosperity Bank’s motion on the merits, or
                                                    defer a ruling on it, so that the priority order of all claims by affected parties (and current nonparties with
                                                    potential claims) may be sorted out, and that claims covered by the necessaries doctrine, monies in the
                                                    nature of trust funds and monies in the nature of earned and unpaid wages be accorded priority over the
CertifiedDocumentNumber:76334527-Page2of6




                                                    Bank’s asserted breach-of-note and guaranty claims.
                                                                                      PROSPERITY’S FURTIVE VENUE CHOICE
                                                             Third-Party Plaintiff would respectfully point out that the promissory note on which Prosperity
                                                    sues has a Corpus Christi (Nueces County) address for Prosperity Bank on it, that Defendant Star


                                                    1
                                                     This belief is based, in part, on the Bank having done so in other cases. See, e.g. Prosperity Bank vs. David Myerly
                                                    Reavis, Lodestone Operating LLC, Case No. 2016CCV-62601-4, in the County Court at Law No 4 of Nueces County,
                                                    Texas. (Default judgment for $158,108.84 granted 6/13/2017, writ of execution requested 07/17/2017). Docket
                                                    sheet available at: http://odypa.co.nueces.tx.us/PublicAccess/CaseDetail.aspx?CaseID=2413858

                                                            2    PROSPERITY BANK V. STAR OPERATIONS, INC. ET AL
                                                                 THIRD-PARTY PLEADING
                                                    Operations, Inc. has its registered agent address in Corpus Christi (Nueces County), that Defendant Lana
                                                    Lewis was served in San Antonio (Bexar County) and that Defendant Victor Huff, by Prosperity’s own
                                                    admission, is a resident of El Paso, Texas (El Paso County).2
                                                            The note specifies that payments are to be made at Victoria, Texas (Victoria County).




                                                                                                         +++




                                                            Prosperity Bank nevertheless sued all three Defendants in Houston (Harris County).
                                                            Third-Party Plaintiff can only speculate about the reasons.
CertifiedDocumentNumber:76334527-Page3of6




                                                            What is clear, however, is that all other creditors of the same Defendants, including any and all
                                                    employees and subcontractors, are prejudiced by Prosperity Bank’s choice of a distant venue and its rush



                                                    2
                                                      The Bank regularly sues customers in Nueces County. See, e.g. Prosperity Bank v Jose Fermin Lerman, Case No.
                                                    2016CCV-62035-4 filed 09/01/2016 in County Court at Law No. 4 on Nueces County; Prosperity Bank vs. JJACT Inc.,
                                                    Jesse Anthony Trammell, Chantel Annette Trammell, Case No. 2015CCV-61822-1 filed 08/20/2015 in County Court
                                                    at Law No. 1; Prosperity Bank vs. Mohamad Hassan, Antrados, P.A., Case No. 2016CCV-61887-4, filed 08/12/2016 in
                                                    County Court at Law NO. 4; Prosperity Bank vs Stephen W Perales, Javier O Gonzalez, Case No. 2016DCV-3338-B,
                                                    filed 07/04/2016 in the 117th District Court, Nueces County.

                                                            3   PROSPERITY BANK V. STAR OPERATIONS, INC. ET AL
                                                                THIRD-PARTY PLEADING
                                                    to obtain a judgment in excess of 1 million dollars against all three Defendants, jointly and severally,3
                                                    without anyone else becoming aware of the Bank’s actions, and without having an opportunity to have
                                                    their claims heard.
                                                                                              NO VENUE ALLEGATIONS
                                                            In connection with the venue issue, the Court is requested to take judicial notice that there are
                                                    no venue allegations in Prosperity Bank’s Original Petition as it was filed on May 9, 2017, and that the
                                                    omission was not corrected when the Bank filed its Amended Original Petition on July 7, 2017.
                                                            The Bank’s live pleading, which forms the basis for its pending motion for summary judgment, no
                                                    longer contains service and address information for any one of the three Defendants,4 but that does not
                                                    affect the Court’s power to take judicial notice of the first-filed pleadings, whether superseded or
                                                    otherwise. Additionally, proof of service as to Lana Lewis and failure of service as to the other defendants
                                                    is likewise on file, and is a proper object of judicial notice as to location and address information.
                                                            Defendants, through their retained counsel with offices in Katy, Texas (near Houston), certainly
                                                    have the prerogative to waive service of citation and objections to venue by filing a general denial and no
                                                    motion to transfer venue, but the rights of third parties should not thereby be compromised.
                                                            At the minimum, the additional parties (or potential parties/claimants) should be afforded notice
                                                    and an opportunity to be heard before Prosperity Bank would render all three Defendants illiquid or
                                                    insolvent through enforcement of a one million dollar summary judgment to be entered against them.

                                                                          THIRD-PARTY PLAINTIFF PLEADING FORMALITIES
                                                            Third-Party Plaintiff’s claim against the Defendants does not affect the discovery level in effect in
                                                    this case, though it is unclear what case type applies for expedited action purposes.
                                                            Third-Party Plaintiff seeks procedural relief and monetary relief less than $100,000. All relief
                                                    sought by Third-Party Plaintiff is within the Court’s jurisdiction to grant.
                                                            Third-Party Plaintiff’s cause of action against the Defendants is suit on open account, and – in the
CertifiedDocumentNumber:76334527-Page4of6




                                                    alternative – quantum meruit – for professional services.
                                                            Third-Party Plaintiff does not seek attorney’s fees at this time, but reserves the right to seek such
                                                    fees should formal attorney representation become necessary to vindicate Third-Party Plaintiff’s claim
                                                    against the Defendants.


                                                    3
                                                      Prosperity pleads for relief in excess of $1 million for case type purposes, but seeks summary judgment for a lump
                                                    sum amount that is less than $1 mil, excluding additional un-computed interest and attorney’s fees.
                                                    4
                                                      See PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION, p.1, ¶4 (reciting that Defendants have appeared and will be
                                                    served with the amended pleading pursuant to T.R.C.P. 21a.).

                                                            4    PROSPERITY BANK V. STAR OPERATIONS, INC. ET AL
                                                                 THIRD-PARTY PLEADING
                                                                                                    PRAYER
                                                           Wherefore, premises considered, Third-Party Plaintiff WOLFGANG P. HIRCZY DE MINO,
                                                    Ph. D. requests that the Court deny the Bank’s motion for summary judgment and allow the case
                                                    to proceed in accordance with the docket control order, and allow for all parties necessary for a
                                                    just adjudication to be joined.
                                                           Third-Party Plaintiff, WOLFGANG P. HIRCZY DE MINO, Ph. D., requests that the Court enter
                                                    judgment for Third-Party Plaintiff, and against the Defendants for all amounts justly owed under
                                                    the open-account arrangement.
                                                           Third-Party Plaintiff prays for general relief.
                                                                                                             Respectfully submitted,

                                                                                                             /s/ WOLFGANG P. HIRCZY DE MINO
                                                                                                             WOLFGANG P. HIRCZY DE MINO, Ph. D.
                                                                                                             Wolfganghirczy@gmail.com
                                                                                                             Current Address:
                                                                                                             Best Western Corpus Christi
                                                                                                             300 N Shoreline Blvd,
                                                                                                             Corpus Christi, TX 78401
                                                                                                             Permanent mailing address:
                                                                                                             P.O. Box 521
                                                                                                             Bellaire, Texas 77403-0521
                                                                                                             Tel.: (713) 806-0718

                                                                                                             THIRD-PARTY PLAINTIFF
                                                                                       CERTIFICATE OF SERVICE
                                                           The undersigned hereby certifies that on August 13, 2017 this pleading is being e-served
CertifiedDocumentNumber:76334527-Page5of6




                                                    upon counsel for all parties who have appeared, and that such service is being effected through
                                                    the e-file system, using the e-serve utility.


                                                           James B. Heston
                                                           Daniel J. Ciment
                                                           Ranald Scott Calili
                                                           HESTON CIMENT, PLLC
                                                           607 Park Grove Drive, Ste. B
                                                           Katy, TX 77450

                                                           5   PROSPERITY BANK V. STAR OPERATIONS, INC. ET AL
                                                               THIRD-PARTY PLEADING
                                                    Tel.: (713) 270-4833
                                                    Fax: (713) 583-9296
                                                    attorney@hestonciment.com
                                                    Attorneys for Defendants
                                                    Star Operations, Inc.,
                                                    Lana L. Lewis,
                                                    and Victor C. Huff, Jr.,

                                                    L. David Smith
                                                    CHERNOSKY, SMITH, RESSLING & SMITH, PLLC
                                                    4646 Wild Indigo, Suite 110
                                                    Houston, Texas 77027
                                                    Tel.: (713) 800-8604
                                                    Fax: (713) 622-1026
                                                    Email: smith@csrslaw.com
                                                    Attorney for Plaintiff
                                                    PROSPERITY BANK



                                                                                               /s/ WOLFGANG P. HIRCZY DE MINO


                                                                                               WOLFGANG P. HIRCZY DE MINO, Ph. D.
                                                                                               THIRD-PARTY PLAINTIFF
CertifiedDocumentNumber:76334527-Page6of6




                                                    6   PROSPERITY BANK V. STAR OPERATIONS, INC. ET AL
                                                        THIRD-PARTY PLEADING
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this May 25, 2018


     Certified Document Number:        76334527 Total Pages: 6




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
HCDistrictclerk.com PROSPERITY BANK vs. STAR OPERATIONS INC                                 5/25/2018
                                                     Court:
                    Cause: 201730978        CDI: 7
                                                     133
DOCUMENTS
Number           Document                                                            Post Jdgm Date     Pgs
79881602         Notice of Filing of Disclaimer in the First Court of Appeals                 05/10/2018 2
·> 79881603      Exhibit A                                                                    05/10/2018 21
79846676         Notice From First Court of Appeals                                           05/07/2018 5
79818391         Notice From First Court of Appeals                                           05/04/2018 1
79808776         Order (court of appeals)                                                     05/03/2018 1
79816253         Court of Appeals First District of Texas (Notice of Distribution)            05/03/2018 2
79816266         Notice From First Court of Appeals                                           05/03/2018 7
79693284         ORDER SIGNED GRANTING TRIAL CONTINUANCE                                      04/27/2018 1
79586255         Request for the Clerk's Record                                               04/19/2018 2
79582428         Court of Appeals First District (General Information)                        04/18/2018 5
79495685         Notice of Intent to Appeal of Wolfgang P. Hirczy de Mind, Ph.D.              04/16/2018 3
79513465         Defendant's Motion to Quash Deposition of Lana Lewis                         04/16/2018 3
79513466         Defendant's Motion to Quash Deposition of Victor Huff, Jr                    04/16/2018 3
79481494         Defendant's Opposed Motion for Continuance                                   04/13/2018 3
79481507         Proposed Order Granting Opposed Motion for Continuance                       04/13/2018 2
79081383         Certificate of Written Discovery                                             03/19/2018 1
79014804         ORDER FOR INTERLOCUTORY SUMMARY JUDGMENT                                     03/12/2018 2
                 SIGNED
78766313         Prosperity Bank's Designation of Expert Witnesses                            02/26/2018 2
78580667      Certificate of Written Discovery                                      02/13/2018 2
78502904      ORDER SIGNED DENYING FINAL SUMMARY JUDGMENT                           02/06/2018 2
78502905      ORDER SIGNED STRIKING PLEADING                                        02/06/2018 2
78502912      ORDER SIGNED GRANTING MOTION TO SHOW                                  02/06/2018 1
              AUTHORITY
78445640      Expert Witness Designations with Witness Credentials and              02/05/2018 9
              Background
78403103      Defendants' and Defense Counsel's Response ti Third-Party Plaintiff   02/01/2018 7
78384004      Notice of Hearing on Rule 91 Special Exceptions (Rule 13 at the       01/31/2018 3
              Court's Discretion)
·> 78384005   Proposed Sua Sponte Order to Show Cause                               01/31/2018 1
78384007      Plaintiff's Memorandum in Support of Motion to Strike Intervention    01/31/2018 3
·> 78384008   Case Cite: In Re: Union Carbide Corporation                           01/31/2018 4
·> 78384009   Case Cite: Trimble v. Onewest Bank, et al                             01/31/2018 5
78386649      Objection to Proserity Bank's Stale Motion to Strike Plea in          01/31/2018 5
              Intervention, Which was Filed Almost Hald a Year Ago
78383346      Defendant's Response to Third-Party Plaintiff's Rule 91 Motion and    01/30/2018 11
              Rule 12 Motion
·> 78383347   Affidavit of Lana Lewis, Individually and as President of Star        01/30/2018 1
·> 78383348   Affidavit of Victor C. Huff, Jr.                                      01/30/2018 1
78357034      Rule 91 Exception to Argumentum Ad Hominem of Mr. Ranald              01/29/2018 10
              Scott Calili
78363289      Defendant's Amended Response to Plaintiff's Motion for Summary        01/29/2018 9
              Judgment
·> 78363292   Exhibit A                                                             01/29/2018 6
·> 78363294   Exhibit C                                                             01/29/2018 1
·> 78363293   Exhibit B                                                             01/29/2018 3
·> 78363291   Proposed Order                                                        01/29/2018 2
78363295      Exhibit D                                                             01/29/2018 1
78363296      Affidavit Lana Lewis                                                  01/29/2018 3
78363297      Affidavit of Victor Huff                                              01/29/2018 1
78363373      Defendant's Second Amended Answer                                     01/29/2018 6
·> 78363380   Victor Verification                                                   01/29/2018 1
·> 78363374   Def Second Amended Answer - Exhibit A                                 01/29/2018 6
·> 78363375   Def Second Amended Answer - Exhibit B                                 01/29/2018 3
·> 78363376   Def Second Amended Answer - Exhibit C                                 01/29/2018 1
·> 78363377   Def Second Amended Answer - Exhibit D                                 01/29/2018 1
·> 78363378   Lana Verification                                                     01/29/2018 1
78331481      ORDER SIGNED SETTING HEARING                                          01/26/2018 2
78227701      Certificate of written discovery                                      01/22/2018 2
78228340      Notice of Designation of Ranald Scott Calili as Attorney in Charge     01/22/2018 2
78231813      Corrected Motion directed to Ranald Scott Calili to Show Authority     01/22/2018 12
              and Motion for Juudicial Notice that Heston Cimet PLLC is
              Defunct
·> 78231814   Proposed Order to Show Cause                                           01/22/2018 2
78250948      Defendants Response to All Filings by WPHDM                            01/22/2018 5
78205545      Dr. Wolfgang P. Hirczy De Mino's Objection and Motion to Quash         01/19/2018 4
              Defendants' Submission Notice for February 5. 2018
78191777      Notice of Hearing by Submission Only                                   01/18/2018 2
78192887      Notice of Hearing                                                      01/18/2018 2
78205528      Request for Case Status Review and for a Ruling on Prosperity          01/18/2018 13
              Bank's pending motion for summary judgment, including
              procedural matters
·> 78205531   .Exhibit C                                                             01/18/2018 42
·> 78205529   Exhibit A                                                              01/18/2018 9
·> 78205530   Exhibit B                                                              01/18/2018 1
·> 78205532   Exhibit D                                                              01/18/2018 3
78164331      Defendants' traditional motion for summary judgment against            01/12/2018 17
              Wolfgang P. Hirczy De Mino, PH.D
·> 78164512   Proposed Order                                                         01/12/2018 2
·> 78190870   Proposed Order and Opinion Resolving Plaintiff's Motion for            01/18/2018 9
              Summary Judgment
78079221      Certificate of written discovery                                       01/08/2018 2
77737953      Certificate of Written Discovery of Third-Party Plaintiff              12/08/2017 2
76506474      Third-Party Plaintiff's Response to Prosperity's Motion to Strike      08/25/2017 5
·> 76506475   Exhibit A                                                              08/25/2017 27
76434619      Amended Certificate of Service                                         08/21/2017 2
76375521      Plaintiff's Motion to Strike Plea in Intervention                      08/16/2017 2
76375522      Proposed Order Striking Plea in Intervention                           08/16/2017 2
76375523      Notice of Submission                                                   08/16/2017 2
76334527      Plea in Intervention and Motion To Abate Summary Judgment              08/14/2017 6
              Motion
76344156      Defendant Reply to Third Party Plea in Intervention                    08/14/2017 2
76274021      Plaintiff's Reply to Defendants' Responses to Plaintiff's Motion for   08/09/2017 2
              Summary Judgment
76264265      All Defendant's Combined First Amended Answer                          08/08/2017 3
              All Defendant's Combined First Amended Answer                          08/08/2017
76264274      Defendant Victor C. Huff Jr's Response to Plaintiff's Motion for       08/08/2017 3
              Summary Judgment
76264345      Joint Response by Defendants Star Operations, Inc. and Lana L.         08/08/2017 13
              Lewis to Plaintiff's Motion for Summary Judgment
76210297      DOCKET CONTROL/PRETRIAL ORDER SIGNED                                   08/03/2017 4
75982465      Notice of Submission                                               07/19/2017 2
75982467      Plaintiff's Motion for Summary Judgment                            07/19/2017 6
·> 75982469   Exhibit A                                                          07/19/2017 3
·> 75982470   Exhibit A-01                                                       07/19/2017 2
·> 75982471   Exhibit A-02                                                       07/19/2017 3
·> 75982473   Exhibit A-03                                                       07/19/2017 3
·> 75982474   Exhibit A-04                                                       07/19/2017 30
·> 75982476   Exhibit A-05                                                       07/19/2017 3
·> 75982477   Exhibit A-06                                                       07/19/2017 3
·> 75982478   Exhibit B                                                          07/19/2017 3
·> 75982480   Proposed Final Judgment                                            07/19/2017 3
75786137      Plaintiff's First Amended Original Petition                        07/05/2017 5
·> 75786138   Exhibit 01                                                         07/05/2017 2
·> 75786139   Exhibit 02                                                         07/05/2017 3
·> 75786140   Exhibit 03                                                         07/05/2017 3
75612066      Certificate of Written Discovery                                   06/21/2017 2
75427563      Certificate of Written Discovery                                   06/08/2017 2
75427584      Defendant's Original Answer                                        06/08/2017 2
              Defendant's Original Answer                                        06/08/2017
75402560      Motion and Application for Substituted Service of Citation under   06/07/2017 3
              Rule 106 Texas Rules of Civil Procedure
·> 75402563   Civil Process Request                                              06/07/2017 1
·> 75402562   Proposed Order Granting Motion For Rule 106 Substitute Service     06/07/2017 3
              Of Process
75164877      Return of Service                                                  05/19/2017 2
75165386      Return of Service                                                  05/19/2017 2
75004067      Plaintiff's Original Petition                                      05/09/2017 6
·> 75004072   Civil Case Information Sheet                                       05/09/2017 2
·> 75004074   Civil Process Request                                              05/09/2017 2
·> 75004068   Exhibit 01                                                         05/09/2017 2
·> 75004070   Exhibit 02                                                         05/09/2017 3
·> 75004071   Exhibit 03                                                         05/09/2017 3
75076245      Civil Process Pick-Up Form                                         05/09/2017 1
5/25/2018                                      Office of Harris County District Clerk - Chris Daniel | Order Number: 716306




  Harris County District Clerk Order Number: 716306



                                               Customer / Shipping Information


                                                                     Ship
  Date:             5/25/2018 8:11:24 AM                                                Download (zipped)
                                                                     Method:
  Customer:         HIRCZY, WOLFGANG
                    PO BOX 521
                    BELLAIRE, TX 77402




                                                    Order Detail Information
   Case: 201730978-7 PROSPERITY BANK vs STAR OPERATIONS INC [Doc# :
                                                                                                          6 pages              $6.00
   76334527]
   Case: 201730978-7 PROSPERITY BANK vs STAR OPERATIONS INC [Doc# :
                                                                                                          2 pages              $2.00
   76375521]
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   78502905]
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                                                                                                          2 pages              $2.00
   79014804]
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                                                                                                          3 pages              $3.00
   79495685]
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                                                                                                          2 pages              $2.00
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                                                                                                          1 page               $1.00
   79693284]




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https://www.hcdistrictclerk.com/edocs/Secure/PrintReceipt.aspx?OrderId=716306                                                            1/1
CertifiedDocumentNumber:79693284-Page1of1
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this May 25, 2018


     Certified Document Number:        79693284 Total Pages: 1




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
