in Re CVR Energy, Inc., CVR Partners, LP, CVR Refining, LP, Gary-Williams Energy Company, LLC

Opinion

ACCEPTED

01-15-00877-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS 10/22/2015 4:25:39 PM CHRISTOPHER PRINE

CLERK

NO. 01-15-00877-CV

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FILED IN

1st COURT OF APPEALS

IN THE COURT OF APPEALS HOUSTON, TEXAS FOR THE FIRST DISTRICT OF TEXAS10/22/2015 4:25:39 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk

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IN RE CVR ENERGY, INC., CVR PARTNERS, LP, CVR REFINING, LP, GARY-WILLIAMS ENERGY COMPANY, LLC RELATORS

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Original Proceeding

From the 434th Judicial District Court of Fort Bend County, Texas Cause No. 2013-DCV-209679 The Honorable James H. Shoemake, Presiding

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MOTION FOR ADMISSION PRO HAC VICE

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Phillip D. Sharp Lee M. Smithyman State Bar No. 18118680 Kansas State Bar No. 09391 MARTIN, DISIERE, JEFFERSON & SMITHYMAN & ZAKOURA, CHARTERED WISDOM, L.L.P. 750 Commerce Plaza II Building 808 Travis, 20th Floor 7400 West 110th Street Houston, Texas 77002 Overland Park, Kansas 66210-2362 (713) 632-1700 – Telephone (913) 661-9800 – Telephone (713) 222-0101 – Facsimile (913) 661-9861 – Facsimile sharp@mdjwlaw.com lee@smizak-law.com Application for pro hac admission pending

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TO THE HONORABLE COURT OF APPEALS:

Pursuant to Texas Government Code Section 82.0361 and in compliance

with Rule XIX of the Texas Board of Law Examiners, the relators, CVR Energy,

Inc., CVR Partners, LP, and Gary-Williams Energy Company, LLC respectfully

move for the admission pro hac vice of attorney Lee M. Smithyman of the Bar of

the State of Kansas. In support of this Motion, attorney Lee M. Smithyman

submits herewith the acknowledgment letter required by Rule XIX of the Texas

Board of Law Examiners and further states as follows:

1. Mr. Smithyman’s contact information is:

Lee M. Smithyman SMITHYMAN & ZAKOURA, CHARTERED 750 Commerce Plaza II 7400 West 110th Street Overland Park, Kansas 66210-2362 Telephone: (913) 661-9800 Facsimile: (913) 661-9863 Email: lee@smizak-law.com

2. Mr. Smithyman will be associated in this proceeding with:

Phillip D. Sharp Texas State Bar No.18118680 MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. 808 Travis Street, Suite 2000 Houston, Texas 77002 Telephone: (713) 632-1700 Facsimile: (713) 222-0101 Email: sharp@mdjwlaw.com

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3. Within the last two (2) years, Mr. Smithyman has appeared or sought

leave to appear or participated in the following cases or causes in Texas courts:

a. In re CVR Energy, Inc. and CVR Refining, LP, Relators, No.

01-15-00715-CV, In the First District Court of Appeals, Houston, Texas

b. Donald R. Collier, et al. v. CVR Energy, Inc. and CVR Refining, LP, Cause No. 15-DCV-220330, In the District Court of Fort Bend County, Richmond, TX, 268th Judicial District

c. Leanna Mann and Kari Smith vs. CVR Energy, et al., Cause No. 13-DCV-209679, In the District Court of Fort Bend County, Richmond, TX, 434th Judicial District

d. Unicorn HRO, LLC vs. Pro Pay, LLC, Cause No. 2012-22616, In the District Court of Harris County, Houston, TX, 61st Judicial District

4. Mr. Smithyman is licensed or admitted to practice law in, and is an

active member in good standing with the following state and federal jurisdictions:

Court: Admission date:

Kansas April 25, 1977 Missouri May 6, 1991 Oklahoma June 7, 2010 U.S. District Court – District of Kansas April 26, 1977 U.S. Court of Appeals- Tenth Circuit May 13, 1983 U. S. District Court – Western District of Missouri May 13, 1994 United States Supreme Court January 6, 1997

5. Mr. Smithyman has never been the subject of disciplinary actions by

the Bar of the courts of any jurisdiction in which he is licensed. Mr. Smithyman

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has not been denied admission to the courts of any state or to any federal court

during the past five (5) years.

6. Mr. Smithyman attests that he is familiar with the State Bar Act, the

State Bar Rules, and the Texas Disciplinary Rules of Professional Conduct

governing the conduct of members of the State Bar of Texas. Mr. Smithyman

attests that he will at all times abide by and comply with these rules as long as the

Texas proceeding is pending and he has not withdrawn as counsel in the

proceeding.

7. Pursuant to Texas Rules Governing Admission to the Bar of Texas,

Rule XIX(a), Mr. Smithyman has filed an application for admission pro hac vice

and has paid the filing fee. The Texas Board of Law Examiners’ letter

acknowledging the application is attached hereto as Exhibit A.

Mr. Smithyman has been retained by Relators to appear as additional

counsel in this proceeding before this Court. For the above reasons, Relators

respectfully request that this Motion be granted. This motion is supported by the

attached "Acknowledgment Letter" from the Texas Board of Law Examiners

showing Mr. Smithyman's application for pro hac vice admission to the Texas

Board of Law Examiners and proof of payment of the required fee (Exhibit A) and

the "Motion to Associate Counsel" from the Texas attorney with whom

Mr. Smithyman shall be associated in this proceeding with this Court (Exhibit B).

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Respectfully submitted,

SMITHYMAN & ZAKOURA, CHARTERED

By: /s/ Lee M. Smithyman Lee M. Smithyman KS Supreme Court No. 09391 750 Commerce Plaza II 7400 West 110th Street Overland Park, KS 66210-2362 Telephone: (913) 661-9800 Facsimile: (913) 661-9863 Email: lee@smizak-law.com

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.

By: /s/ Phillip D. Sharp Phillip D. Sharp Texas State Bar No. 18118680 808 Travis, 20th Floor Houston, TX 77002 Telephone: (713) 632-1700 Telefacsimile: (713) 222-0101 Email: sharp@mdjwlaw.com

ATTORNEYS FOR CVR ENERGY, INC., CVR PARTNERS, LP, CVR REFINING, LP and GARY-WILLIAMS ENERGY COMPANY, LLC

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CERTIFICATE OF COMPLIANCE This is to certify that this computer-generated Motion for Admission Pro Hac Vice contains 631 words.

/s/ Philip D. Sharp Philip D. Sharp Dated: October 22, 2015

CERTIFICATE OF CONFERENCE This is to certify that my office has conferred David Medina, lead appellate counsel for the real parties in interest regarding the relief requested in this motion. Justice Medina advised that the real parties are unopposed to the relief requested.

/s/ Philip D. Sharp Philip D. Sharp Dated: October 22, 2015

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CERTIFICATE OF SERVICE

I hereby certify that on this October 22, 2015, a true and correct copy of the Motion for Admission Pro Hac Vice was sent by the method indicated to the following individuals:

Gary M. Riebschlager via Email gary@riebschlagerlaw.com THE RIEBSCHLAGER LAW FIRM 801 Congress, Suite 250 Houston, TX 77002

Richard L. Tate via Email: rltate@tate-law.com Kristin Reis via Email: kreis@tate-law.com TATE, MOERER & KING, LLP 206 South Second Street Richmond, TX 77469

Timothy A. Hootman via Email: thootman2000@yahoo.com 2402 Pease St Houston, TX 77003 713.247.9548; 713.583.9523 (f)

David M. Medina via email: davidmedina@justicedavidmedina.com THE MEDINA LAW FIRM 5300 Memorial Dr., Ste. 890 Houston, TX 77007

/s/ Philip D. Sharp Philip D. Sharp

A

Board of Law Examiners Appointed by the Supreme Court of Texas P.O. Box 13486 * Austin, Texas 78711-3486

Acknowledgment Letter Non-Resident Attorney Fee

October 21, 2015

To: Lee M. Smithyman Via: lee@smizak-law.com

According to Texas Government Code §82.0361, “a nonresident attorney requesting permission to participate in proceedings in a court in this state shall pay a fee of $250 for each case in which the attorney is requesting to participate.”

This Acknowledgement Letter serves as proof that the Board of Law Examiners has received $250 in connection with the following matter:

Non-resident attorney: Lee M. Smithyman Case: 01-15-00877-CV Texas court or body: First Court of Appeals Houston TX

After satisfying the fee requirement, a non-resident attorney shall file a motion in the Texas court or body in which the non-resident attorney is requesting permission to appear. The motion shall contain the information and statements required by Rule XIX(a) of the Rules Governing Admission to the Bar of Texas. The motion must be accompanied by this Acknowledgment Letter and by a motion from a resident practicing Texas attorney that contains the statements required by Rule XIX(b).

The decision to grant or deny a non-resident attorney’s motion for permission to participate in the proceedings in a particular cause is made by the Texas court or body in which it is filed.

For more information, please see Rule XIX of the Rules Governing Admission to the Bar of Texas and §82.0361 of the Texas Government Code, which can be found on the Board’s website.

Sincerely,

Susan Henricks Executive Director

B

NO. 01-15-00877-CV

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IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS

__________________________________________________________________

IN RE CVR ENERGY, INC., CVR PARTNERS, LP, CVR REFINING, LP, GARY-WILLIAMS ENERGY COMPANY, LLC RELATORS

__________________________________________________________________

Original Proceeding

From the 434th Judicial District Court of Fort Bend County, Texas Cause No. 2013-DCV-209679 The Honorable James H. Shoemake, Presiding

__________________________________________________________________

MOTION TO ASSOCIATE COUNSEL

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Phillip D. Sharp

State Bar No. 18118680

MARTIN, DISIERE, JEFFERSON & WISDOM, LLP 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile sharp@mdjwlaw.com

Lee M. Smithyman

Kansas State Bar No. 09391 SMITHYMAN & ZAKOURA, CHARTERED 750 Commerce Plaza II Building 7400 West 110th Street

Overland Park, Kansas 66210-2362 (913) 661-9800 – Telephone (913) 661-9861 – Facsimile lee@smizak-law.com

Application for pro hac admission pending

TO THE HONORABLE COURT OF APPEALS:

Come now the relators, CVR Energy, Inc., CVR Refining, L.P., and Gary-

Williams (collectively, “CVR”), who hereby file this motion to associate counsel

and move this Court for an Order permitting Lee M. Smithyman, a non-resident

attorney for the State of Texas to practice in the above styled and numbered cause

pursuant to Rule XIX, “Requirements for Participation in Texas Proceedings by a

Non-Resident Attorney of the Texas Board of Law Examiners. As indicated in the

style of the motion and in the certificate of conference below, this motion is

unopposed.

I, Philip D. Sharp, CVR’s Texas counsel in this proceeding find Mr.

Smithyman, a non-resident attorney for the State of Texas to be a reputable

attorney and recommend that he be granted permission to participate in the above-

referenced proceeding before this honorable Court.

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.

By: /s/ Philip D. Sharp

Phillip D. Sharp Texas State Bar No. 18118680 808 Travis, 20th Floor Houston, TX 77002 Telephone: (713) 632-1700 Facsimile: (713) 222-0101 Email: sharp@mdjwlaw.com COUNSEL FOR RELATORS

CERTIFICATE OF COMPLIANCE This is to certify that this computer-generated Motion to Associate Counsel contains 139 words.

/s/ Philip D. Sharp Philip D. Sharp Dated: October 22, 2015

CERTIFICATE OF CONFERENCE This is to certify that my office has conferred David Medina, lead appellate counsel for the real parties in interest regarding the relief requested in this motion. Justice Medina advised that the real parties are unopposed to the relief requested.

/s/ Philip D. Sharp Philip D. Sharp Dated: October 22, 2015

CERTIFICATE OF SERVICE

I hereby certify that on this October 22, 2015, a true and correct copy of the Motion To Associate Counsel was sent by the method indicated to the following individuals:

Gary M. Riebschlager Via Email gary@riebschlagerlaw.com THE RIEBSCHLAGER LAW FIRM 801 Congress, Suite 250 Houston, TX 77002

Richard L. Tate Via Email: rltate@tate-law.com Kristin Reis Via Email: kreis@tate-law.com TATE, MOERER & KING, LLP 206 South Second Street Richmond, TX 77469

Timothy A. Hootman via Email: thootman2000@yahoo.com 2402 Pease St Houston, TX 77003 713.247.9548; 713.583.9523 (f)

David M. Medina via email: davidmedina@justicedavidmedina.com THE MEDINA LAW FIRM 5300 Memorial Dr., Ste. 890 Houston, TX 77007

/s/ Philip D. Sharp Philip D. Sharp