ACCEPTED 05-14-01383-CV FIFTH COURT OF APPEALS Appellate Docket Number: 05-14-01383-CV DALLAS, TEXAS 1/9/2015 2:36:07 PM LISA MATZ Appellate Case Style: Enterprise Products Partners, L.P. and Enterprise Products Operating, LLC CLERK
Vs. Energy Transfer Partners, L.P. and Energy Transfer Fuel, LP Companion Case No.: N/A FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 1/9/2015 2:36:07 PM Amended/corrected statement: DOCKETING STATEMENT (Civil) LISA MATZ Clerk Appellate Court: 5th Court of Appeals (to be filed in the court of appeals upon perfection of appeal under TRAP 32)
I. Cross-Appellant II. Cross-Appellant Attorney(s) Person Organization (choose one) Lead Attorney Organization Name: Energy Transfer Partners, L.P. First Name: Michael First Name: Middle Name: P. Middle Name: Last Name: Lynn Last Name: Suffix: Suffix: Law Firm Name: Lynn Tillotson Pinker & Cox, LLP
Pro Se: Address 1: 2100 Ross Avenue Address 2: Suite 2700 City: Dallas State: Texas Zip+4: 75201 Telephone: 214-981-3800 ext. Fax: 214-981-3839 Email: mlynn@lynnllp.com SBN: 12738500
I. Cross-Appellant II. Cross-Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: ** See Attach. 1 for Additional Attorneys** First Name: Middle Name: Middle Name: Last Name: Last Name: Suffix: Suffix: Law Firm Name:
Pro Se: Address 1: Address 2:
Page 1 of 9 City: State: Texas Zip+4: Telephone: ext. Fax: Email: SBN:
III. Cross-Appellee IV. Cross-Appellee Attorney(s) Person Organization (choose one) Lead Attorney Organization Name: Enterprise Products Partners, L.P. First Name: David First Name: Middle Name: M. Middle Name: Last Name: Gunn Last Name: Gunn Suffix: Suffix: Law Firm Name: Beck Redden, LLP Pro Se: Address 1: 1221 McKinney, Suite 4500 Address 2: City: Houston State: Texas Zip+4: 77010 Telephone: 713-951-3700 ext. Fax: 713-951-3720 Email: dgunn@beckredden.com SBN: 08621600
III. Cross-Appellee IV. Cross-Appellee Attorney(s) Person Organization (choose one) Lead Attorney First Name: ** See Attach. 2 for Additional Attorneys ** First Name: Middle Name: Middle Name: Last Name: Last Name: Suffix: Suffix: Law Firm Name: Pro Se: Address 1: Address 2: City: State: Texas Zip+4: Telephone: ext. Fax: Email: SBN:
Page 2 of 9 V. Perfection Of Appeal And Jurisdiction
Nature of Case (Subject matter or type of case): Partnership
Date order or judgment signed: July 29, 2014 Type of judgment: Jury Trial Date notice of appeal filed in trial court: October 24, 2014 If mailed to the trial court clerk, also give the date mailed: Interlocutory appeal of appealable order: Yes No If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28):
Accelerated appeal (See TRAP 28): Yes No If yes, please specify statutory or other basis on which appeal is accelerated:
Parental Termination or Child Protection? (See TRAP 28.4): Yes ■ No
Permissive? (See TRAP 28.3): Yes No If yes, please specify statutory or other basis for such status:
Agreed? (See TRAP 28.2): Yes No If yes, please specify statutory or other basis for such status:
Appeal should receive precedence, preference, or priority under statute or rule: Yes No If yes, please specify statutory or other basis for such status:
Does this case involve an amount under $100,000? Yes No Judgment or order disposes of all parties and issues: Yes No Appeal from final judgment: Yes No Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? Yes No
VI. Actions Extending Time To Perfect Appeal
Motion for New Trial: Yes No If yes, date filed: August 27, 2014 Motion to Modify Judgment: Yes No If yes, date filed: August 27, 2014 Request for Findings of Fact Yes No If yes, date filed: and Conclusions of Law: Yes No If yes, date filed: Motion to Reinstate: Yes No If yes, date filed: Motion under TRCP 306a: Other: Yes No If other, please specify:
VII. Indigency Of Party: (Attach file-stamped copy of affidavit, and extension motion if filed.)
Affidavit filed in trial court: Yes No If yes, date filed:
Contest filed in trial court: Yes No If yes, date filed:
Date ruling on contest due:
Ruling on contest: Sustained Overruled Date of ruling:
Page 3 of 9 VIII. Bankruptcy
Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? Yes No If yes, please attach a copy of the petition.
Date bankruptcy filed: Bankruptcy Case Number:
IX. Trial Court And Record
Court: 298th District Court Clerk's Record: County: Dallas Trial Court Clerk: District County Trial Court Docket Number (Cause No.): 11-12667 Was clerk's record requested? Yes No If yes, date requested: October 24, 2014 Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Emily Were payment arrangements made with clerk? Middle Name: G. Yes No Indigent Last Name: Tobolowsky (Note: No request required under TRAP 34.5(a),(b)) Suffix: Address 1: George L. Allen, Sr. Courts Building Address 2 : 600 Commerce Street, 8th Floor, New Tower City: Dallas State: Texas Zip + 4: 75202 Telephone: 214-653-6781 ext. Fax: Email: cbrown@dallascourts.org
Reporter's or Recorder's Record:
Is there a reporter's record? Yes No Was reporter's record requested? Yes No
Was there a reporter's record electronically recorded? Yes No If yes, date requested: October 24, 2014
If no, date it will be requested: Were payment arrangements made with the court reporter/court recorder? Yes No Indigent
Page 4 of 9 Court Reporter Court Recorder Official Substitute
First Name: Marcey Middle Name: J. Last Name: Poeckes Suffix: Address 1: 298th District Court Address 2: 600 Commerce Street, 8th Floor City: Dallas State: Texas Zip + 4: 75202 Telephone: 214-653-6782 ext. Fax: Email: ktrorter@aol.com
Court Reporter Court Recorder Official Substitute
First Name: David Middle Name: Last Name: Roy Suffix: Address 1: Notarius Reporting, Inc. Address 2: 2515 Inwood Road, Suite 207 City: Dallas State: Texas Zip + 4: 75235 Telephone: 214-324-3733 ext. Fax: Email: david@notariusreporting.com
X. Supersedeas Bond Supersedeas bond filed: Yes No If yes, date filed: August 1, 2014
Will file: Yes No
XI. Extraordinary Relief
Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? Yes No If yes, briefly state the basis for your request:
XII. Alternative Dispute Resolution/Mediation (Complete section if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, or 14th Court of Appeal) Should this appeal be referred to mediation? Yes No Page 5 of 9 If no, please specify:The parties mediated unsuccessfully in Sept. 2013. Should the court order mediation again, ETP will participate in good faith. Has the case been through an ADR procedure? Yes No If yes, who was the mediator? Christopher Nolland, Attorney-Mediator, 1717 Main Street, Suite 5550, Dallas, TX 75201; 214-653-4360 What type of ADR procedure? Mediation At what stage did the case go through ADR? Pre-Trial Post-Trial Other
If other, please specify:
Type of case? Partnership Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without prejudice to the right to raise additional issues or request additional relief): Conditional cross-appeal as to amount of disgorgement award.
How was the case disposed of? Trial Summary of relief granted, including amount of money judgment, and if any, damages awarded.
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ACCEPTED 05-14-01383-CV FIFTH COURT OF APPEALS Appellate Docket Number: 05-14-01383-CV DALLAS, TEXAS 1/9/2015 2:36:07 PM LISA MATZ Appellate Case Style: Enterprise Products Partners, L.P. and Enterprise Products Operating, LLC CLERK
Vs. Energy Transfer Partners, L.P. and Energy Transfer Fuel, LP Companion Case No.: N/A FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 1/9/2015 2:36:07 PM Amended/corrected statement: DOCKETING STATEMENT (Civil) LISA MATZ Clerk Appellate Court: 5th Court of Appeals (to be filed in the court of appeals upon perfection of appeal under TRAP 32)
I. Cross-Appellant II. Cross-Appellant Attorney(s) Person Organization (choose one) Lead Attorney Organization Name: Energy Transfer Partners, L.P. First Name: Michael First Name: Middle Name: P. Middle Name: Last Name: Lynn Last Name: Suffix: Suffix: Law Firm Name: Lynn Tillotson Pinker & Cox, LLP
Pro Se: Address 1: 2100 Ross Avenue Address 2: Suite 2700 City: Dallas State: Texas Zip+4: 75201 Telephone: 214-981-3800 ext. Fax: 214-981-3839 Email: mlynn@lynnllp.com SBN: 12738500
I. Cross-Appellant II. Cross-Appellant Attorney(s) Person Organization (choose one) Lead Attorney First Name: ** See Attach. 1 for Additional Attorneys** First Name: Middle Name: Middle Name: Last Name: Last Name: Suffix: Suffix: Law Firm Name:
Pro Se: Address 1: Address 2:
Page 1 of 9 City: State: Texas Zip+4: Telephone: ext. Fax: Email: SBN:
III. Cross-Appellee IV. Cross-Appellee Attorney(s) Person Organization (choose one) Lead Attorney Organization Name: Enterprise Products Partners, L.P. First Name: David First Name: Middle Name: M. Middle Name: Last Name: Gunn Last Name: Gunn Suffix: Suffix: Law Firm Name: Beck Redden, LLP Pro Se: Address 1: 1221 McKinney, Suite 4500 Address 2: City: Houston State: Texas Zip+4: 77010 Telephone: 713-951-3700 ext. Fax: 713-951-3720 Email: dgunn@beckredden.com SBN: 08621600
III. Cross-Appellee IV. Cross-Appellee Attorney(s) Person Organization (choose one) Lead Attorney First Name: ** See Attach. 2 for Additional Attorneys ** First Name: Middle Name: Middle Name: Last Name: Last Name: Suffix: Suffix: Law Firm Name: Pro Se: Address 1: Address 2: City: State: Texas Zip+4: Telephone: ext. Fax: Email: SBN:
Page 2 of 9 V. Perfection Of Appeal And Jurisdiction
Nature of Case (Subject matter or type of case): Partnership
Date order or judgment signed: July 29, 2014 Type of judgment: Jury Trial Date notice of appeal filed in trial court: October 24, 2014 If mailed to the trial court clerk, also give the date mailed: Interlocutory appeal of appealable order: Yes No If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28):
Accelerated appeal (See TRAP 28): Yes No If yes, please specify statutory or other basis on which appeal is accelerated:
Parental Termination or Child Protection? (See TRAP 28.4): Yes ■ No
Permissive? (See TRAP 28.3): Yes No If yes, please specify statutory or other basis for such status:
Agreed? (See TRAP 28.2): Yes No If yes, please specify statutory or other basis for such status:
Appeal should receive precedence, preference, or priority under statute or rule: Yes No If yes, please specify statutory or other basis for such status:
Does this case involve an amount under $100,000? Yes No Judgment or order disposes of all parties and issues: Yes No Appeal from final judgment: Yes No Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? Yes No
VI. Actions Extending Time To Perfect Appeal
Motion for New Trial: Yes No If yes, date filed: August 27, 2014 Motion to Modify Judgment: Yes No If yes, date filed: August 27, 2014 Request for Findings of Fact Yes No If yes, date filed: and Conclusions of Law: Yes No If yes, date filed: Motion to Reinstate: Yes No If yes, date filed: Motion under TRCP 306a: Other: Yes No If other, please specify:
VII. Indigency Of Party: (Attach file-stamped copy of affidavit, and extension motion if filed.)
Affidavit filed in trial court: Yes No If yes, date filed:
Contest filed in trial court: Yes No If yes, date filed:
Date ruling on contest due:
Ruling on contest: Sustained Overruled Date of ruling:
Page 3 of 9 VIII. Bankruptcy
Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? Yes No If yes, please attach a copy of the petition.
Date bankruptcy filed: Bankruptcy Case Number:
IX. Trial Court And Record
Court: 298th District Court Clerk's Record: County: Dallas Trial Court Clerk: District County Trial Court Docket Number (Cause No.): 11-12667 Was clerk's record requested? Yes No If yes, date requested: October 24, 2014 Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Emily Were payment arrangements made with clerk? Middle Name: G. Yes No Indigent Last Name: Tobolowsky (Note: No request required under TRAP 34.5(a),(b)) Suffix: Address 1: George L. Allen, Sr. Courts Building Address 2 : 600 Commerce Street, 8th Floor, New Tower City: Dallas State: Texas Zip + 4: 75202 Telephone: 214-653-6781 ext. Fax: Email: cbrown@dallascourts.org
Reporter's or Recorder's Record:
Is there a reporter's record? Yes No Was reporter's record requested? Yes No
Was there a reporter's record electronically recorded? Yes No If yes, date requested: October 24, 2014
If no, date it will be requested: Were payment arrangements made with the court reporter/court recorder? Yes No Indigent
Page 4 of 9 Court Reporter Court Recorder Official Substitute
First Name: Marcey Middle Name: J. Last Name: Poeckes Suffix: Address 1: 298th District Court Address 2: 600 Commerce Street, 8th Floor City: Dallas State: Texas Zip + 4: 75202 Telephone: 214-653-6782 ext. Fax: Email: ktrorter@aol.com
Court Reporter Court Recorder Official Substitute
First Name: David Middle Name: Last Name: Roy Suffix: Address 1: Notarius Reporting, Inc. Address 2: 2515 Inwood Road, Suite 207 City: Dallas State: Texas Zip + 4: 75235 Telephone: 214-324-3733 ext. Fax: Email: david@notariusreporting.com
X. Supersedeas Bond Supersedeas bond filed: Yes No If yes, date filed: August 1, 2014
Will file: Yes No
XI. Extraordinary Relief
Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? Yes No If yes, briefly state the basis for your request:
XII. Alternative Dispute Resolution/Mediation (Complete section if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, or 14th Court of Appeal) Should this appeal be referred to mediation? Yes No Page 5 of 9 If no, please specify:The parties mediated unsuccessfully in Sept. 2013. Should the court order mediation again, ETP will participate in good faith. Has the case been through an ADR procedure? Yes No If yes, who was the mediator? Christopher Nolland, Attorney-Mediator, 1717 Main Street, Suite 5550, Dallas, TX 75201; 214-653-4360 What type of ADR procedure? Mediation At what stage did the case go through ADR? Pre-Trial Post-Trial Other
If other, please specify:
Type of case? Partnership Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without prejudice to the right to raise additional issues or request additional relief): Conditional cross-appeal as to amount of disgorgement award.
How was the case disposed of? Trial Summary of relief granted, including amount of money judgment, and if any, damages awarded. $319,375,000.00 If money judgment, what was the amount? Actual damages: Punitive (or similar) damages: Attorney's fees (trial): Attorney's fees (appellate): Other: If other, please specify: Disgorgement: $150,000,000.00; prejudgment int. $66,419,777.40; postjudgment int @ 5% per annum; costs.
Will you challenge this Court's jurisdiction? Yes No Does judgment have language that one or more parties "take nothing"? Yes No Does judgment have a Mother Hubbard clause? Yes No Other basis for finality? Rate the complexity of the case (use 1 for least and 5 for most complex): 1 2 3 4 5 Please make my answer to the preceding questions known to other parties in this case. Yes No Can the parties agree on an appellate mediator? Yes No If yes, please give name, address, telephone, fax and email address: Name Address Telephone Fax Email
Languages other than English in which the mediator should be proficient: Name of person filing out mediation section of docketing statement: Michael P. Lynn
Page 6 of 9 XIII. Related Matters List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.
Docket Number: N/A Trial Court:
Style:
Vs.
Page 7 of 9 XIV. Pro Bono Program: (Complete section if filing in the 1st, 3rd, 5th, or 14th Courts of Appeals) The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar Associations, are conducting a program to place a limited number of civil appeals with appellate counsel who will represent the appellant in the appeal before this Court.
The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More information regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at www.tex-app.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within thirty (30) to forty-five (45) days after submitting this Docketing Statement. Note: there is no guarantee that if you submit your case for possible inclusion in the Pro Bono Program, the Pro Bono Committee will select your case and that pro bono counsel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you in this proceeding. By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and information about your case, including parties and background, through selected Internet sites and Listserv to its pool of volunteer appellate attorneys. Do you want this case to be considered for inclusion in the Pro Bono Program? Yes No
Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have regarding the appeal? Yes No
Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for the purposes of considering the case for inclusion in the Pro Bono Program.
If you have not previously filed an affidavit of Indigency and attached a file-stamped copy of that affidavit, does your income exceed 200% of the U.S. Department of Health and Human Services Federal Poverty Guidelines? Yes No
These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at http://aspe.hhs.gov/poverty/06poverty.shtml.
Are you willing to disclose your financial circumstances to the Pro Bono Committee? Yes No If yes, please attach an Affidavit of Indigency completed and executed by the appellant or appellee. Sample forms may be found in the Clerk's Office or on the internet at http://www.tex-app.org. Your participation in the Pro Bono Program may be conditioned upon your execution of an affidavit under oath as to your financial circumstances.
Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary).
XV. Signature
Signature of counsel (or pro se party) Date: January 9, 2015
Printed Name: David S. Coale State Bar No.: 00787255
Electronic Signature: /s/David S. Coale (Optional)
Page 8 of 9 XVI. Certificate of Service
The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial court's order or judgment as follows on January 9, 2015 .
Signature of counsel (or pro se party) Electronic Signature: /s/David S. Coale (Optional)
State Bar No.: 00787255 Person Served Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must state: (1) the date and manner of service; (2) the name and address of each person served, and (3) if the person served is a party's attorney, the name of the party represented by that attorney
Please enter the following for each person served:
Date Served January 9, 2015
Manner Served: e-Served First Name: See Attachment 3 for List of Persons Served.
Middle Name: Last Name: Suffix: Law Firm Name: Address 1: Address 2: City: State Texas Zip+4: Telephone: ext. Fax: Email: If Attorney, Representing Party's Name:
Page 9 of 9 ATTACHMENT 1 ADDITIONAL ATTORNEYS FOR CROSS-APPELLANT ENERGY TRANSFER PARTNERS, L.P.
Christopher J. Akin State Bar No. 00793237 cakin@lynnllp.com Jeremy A. Fielding State Bar No. 24040895 jfielding@lynnllp.com David S. Coale State Bar No. 00787255 dcoale@lynnllp.com Samuel B. Hardy State Bar No. 24074360 shardy@lynnllp.com LYNN TILLOTSON PINKER & COX, L.L.P. 2100 Ross Avenue, Suite 2700 Dallas, TX 75201 (214) 981-3000 (214) 981-3839
Nina Cortell State Bar No. 04844500 nina.cortell@haynesboone.com Jeremy Kernodle State Bar No. 24032618 jeremy.kernodle@haynesboone.com Kelli Bills State Bar No. 24067169 kelli.bills@haynesboone.com HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, TX 75219 (214) 651-5247 (214) 200-0463 ATTACHMENT 2 ADDITIONAL ATTORNEYS FOR CROSS-APPELLEE ENTERPRISE PRODUCTS PARTNERS, L.P.
Russell S. Post Richard A. Sayles State Bar No. 00797258 State Bar No. 17697500 rpost@beckredden.com dsayles@swtriallaw.com David J. Beck Shawn C. Long State Bar No. 00000070 State Bar No. 24047859 dbeck@beckredden.com slong@swtriallaw.com Jeff M. Golub SAYLES | WERBNER, P.C. State Bar No. 00793823 4400 Renaissance Tower jgolub@beckredden.com 1201 Elm Street BECK REDDEN LLP Dallas, TX 75270 1221 McKinney Street, Suite 4500 (214) 939-8700 Houston, TX 77010 (214) 939-8787 (Fax) (713) 951-3700 (713) 951-3720 (Fax)
P. Michael Jung State Bar No. 11054600 michael.jung@strasburger.com STRASBURGER & PRICE, LLP 901 Main Street, Suite 4400 Dallas, TX 75202 (214) 651-4724 (214) 659-4022 – Fax ATTACHMENT 3 CERTIFICATE OF SERVICE
I certify and on January 9, 2015, a true and correct copy of this Docketing Statement was served on the following counsel of record by the Electronic Service Provider, if registered for receiving electronic service, otherwise by email, as follows:
David M. Gunn Nina Cortell dgunn@beckredden.com nina.cortell@haynesboone.com Russell S. Post Jeremy Kernodle rpost@beckredden.com jeremy.kernodle@haynesboone.com David J. Beck Kelli Bills dbeck@beckredden.com kelli.bills@haynesboone.com Jeff M. Golub HAYNES AND BOONE, LLP jgolub@beckredden.com 2323 Victory Avenue, Suite 700 BECK REDDEN LLP Dallas, TX 75219 1221 McKinney Street Suite 4500 Houston, TX 77010 Attorneys for Appellees Energy Transfer Partners, L.P. and Energy Transfer Fuel, L.P. P. Michael Jung michael.jung@strasburger.com STRASBURGER & PRICE, LLP 901 Main Street, Suite 4400 Dallas, TX 75202
Richard A. Sayles dsayles@swtriallaw.com Shawn C. Long slong@swtriallaw.com SAYLES | WERBNER, P.C. 4400 Renaissance Tower 1201 Elm Street Dallas, TX 75270
Attorneys for Appellants Enterprise Products Partners, L.P. and Enterprise Products /s/ David S. Coale Operating, LLC David S. Coale