Supply Pro, Inc. and Harmon K. Fine, Individually v. Ecosorb International, Inc., D/B/A Biocel Technologies

Opinion

ACCEPTED 01-15-00621-CV FIRST COURT OF APPEALS HOUSTON, TEXAS • Appellate Docket Number: 0 J., 15-0062!,CV 8/6/2015 5:28:43 PM CHRISTOPHER PRINE Appellate Case Style: Supply Pro, Inc. and Harmon K. Fine il1divldually CLERK

Vs. Ecosorb futernatioual, . .· . lie., d/b/a BiocelTeclmologies

Companion Case No.: . • FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 8/6/2015 5:28:43 PM CHRISTOPHER A. PRINE Amended/corrected statement: DOCKETING STATEMENT (Civil) Clerk Appellate Court: Jst Court of Appeals (to be tiled in the court of appeals upon perfection of appeal under TRAP 32) . .· . I. Appellant .·. ·. . n. Appellant Attorney(s) . ·. . . .

0 Person IZJ Organization (choose one) IZl Lead Attorney Organization Name: Supply Pro, lie. First Name: Richard First Name: Middle Name: H. Middle Name: Last Name: Edehnan Last Name: Suffix: Suffix: Law Firm Name: Barlow Jones LLP

ProSe: 0 Address I: 17225 El Camino Real Address 2: Suite 400 City: Houston State: Texas Zip+4: 77058 Telephone: (281) 488-8440 ext. Fax: (281)488,6832 Email: 111e@edehnanoffice.com

SBN: 06413200 . .. : . :L Appellant . n. Appellant Attorney(s) . . .

IZJ Person 0 Organization (choose one) D Lead Attorney First Name: William First Name: Harmon Middle Name: ]'. Middle Name: K. Last Name: Harmeyer Last Name: Fine Suffix: Suffix: Law Firm Name: WH!iain F. Harmeyer & Associates, P.C.

ProSe: 0 Address I: 732.2 Southwest Freeway Address 2: suite 475 . :

Page 1 of 11 City: Houston State: Texas Zip+4: 77074 Telephone: (713) 270-5552 · ext. Fax: (713) ;!70-7128 Email: j,Vharmeyer@harmeyerlaw.com

SBN: 09019000

III. Appellee IV. Appellee Attorney(s) D Person ~:X:] Organization (choose one) D Lead Attorney Organization Name: Ecosorb International,Jnc., dbaBiocel Tech. First Name: T. First Name: Middle Name: Ernest Middle Name: Last Name: Freeman Last Name: Suffix: Suffix: Law Firm Name: The Freeman Law .Firm, P.C. ProSe: 0 Address I: 1770 St. James Place Address 2: Suite 120 City: Hou.ston State: Texas Zip+4: 77056 Telephone: (713) 973-1000 ext. Fax: (713) 973-1004 Email: ¢mest@thefi·eemanlawfirm.com SBN: 07431.6.00

III. Appellee IV. Appellee Attorney(s) D Person D Organization (choose one) D Lead Attorney First Name: Stephen First Name: Middle Name: G. Middle Name: Last Name: Scholl Last Name: Suffix: Suffix: Law Finn Name: The FreemanLaw Firm, P.C. ProSe: 0 Address 1: 1770 S.t. James Place

Address 2: Suite 120 City: Houston State: Texas Zip+4: 77056 Telephone: (713) 973-1000 ext. Fax: (713)973-1004 Email: steve@thefi·eemanlawfinn.com SBN: 17801350

III. Appellee IV. Appellee Attoruey(s) D Person D Organization (choose one) ~:X:] Lead Attorney First Name: Jonathan First Name: Middle Name:

Page 2 of 11 Middle Name: Last Name: Stager Last Name: Suffix: Suffix: Law Firm Name: Jonathan Stager Law ProSe: 0 Address I: 2301 Morse Street Address 2: City: Bouston State: Texas Zip+4: 770[9 Telephone: (713) 522-2848 : ext. Fax: (713) 522-1120 Email: jstoger@stogerlaw.com SBN: 00797504

Page 3 of 11 . V. Perfection Of Appeal And.Jurisdiction . .. Nature of Case (Subject matter or type of case): Contract

Date order or judgment signed: April21, 2015 Type of judgment: Jmy Trial Date notice of appeal filed in trial comt: July 20,2015 If mailed to the trial court clerk, also give the date mailed:

Interlocutmy appeal of appealable order: D Yes 1:><:1 No If yes, please specifY statutmy or other basis on which interlocutory order is appealable (See TRAP 28):

Accelerated appeal (See TRAP 28): DYes 1:><:1 No If yes, please specifY statutory or other basis on which appeal is accelerated:

Parental Termination or Child Protection? (See TRAP 28.4): DYes ~No

Permissive? (See TRAP 28.3): DYes 1:><:1 No If yes, please specifY statutmy or other basis for such status:

Agreed? (See TRAP 28.2): DYes 1:><:1 No If yes, please specifY statutmy or other basis for such status:

Appeal should receive precedence, preference, or priority under statute or rule: DYes 1:><:1 No If yes, please specifY statutmy or other basis for such status:

Does this case involve an amount under $1 00,000? D Yes i:><:J No Judgment or order disposes of all parties and issues: 1:><:1 Yes DNa Appeal from fmal judgment: 1:><:1 Yes DNa Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? D Yes 1:><:1 No

.. VI.. Actions Extending Time To Perfect Appeal . .

Motion for New Trial: I:><:JYes D No If yes, date filed: May 18,2015

Motion to ModifY Judgment: I:><:JYes DNa If yes, date filed: May 18,2015 Request for Findings of Fact DYes I:><:JNo If yes, date filed: and Conclusions of Law: DYes 1:><:1 No If yes, date filed: Motion to Reinstate: DYes I:><:JNo If yes, date filed: Motion under TRCP 306a: Other: I:><:JYes DNo If other, please specifY: Motion for Judgment Notwithstanding the Verdict (JNOV) on ·. May 18; 2015 . . VII. Indigency Of Party: (Attach file-stamped copy of affidavit, and extension motion iffiled.) .

Affidavit filed in trial comt: DYes DNo If yes, date filed:

Contest filed in trial comt: DYes 0No If yes, date filed:

Date ruling on contest due:

Ruling on contest: D Sustained D Overruled Date of ruling:

Page 4 of 11 . .· VIII. Bankruptcy .

Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? DYes ~No If yes, please attach a copy of the petition.

Date bankruptcy filed: Bankruptcy Case Number:

IX. TriaiCourt And Record · .. . . .. · . . . .

Court: lith District CoUit Clerk's Record: County: Ha1Tis Trial Court Clerk: ~ District D County Trial Court Docl

If yes, date requested: July 20,2015 Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Mike Were payment arrangements made with clerk? Middle Name: D. DYes ~No Dindigent Last Name: Miller (Note: No request required under TRAP 34.5(a),(b)) Suffix: Address I: 201 Caroline Address 2: 9th Floor City: Houston State: Texas Zip+ 4: 77002 Telephone: (713) 368-6020 ext. Fax: Not Available Email: NotAvailable

Repartees or Recorder•s Record:

Is there a reporter1s record? ~Yes D No Was reporter1s record requested? ~Yes DNa

Was there a reporter's record electronically recorded? ~Yes D No If yes, date requested: May 21, 20!5

If no, date it will be requested: Were payment arrangements made with the court reporter/court recorder? ~Yes D No Dludigent

Page 5 of 11 ~:>:<:] Court Reporter 0 Court Recorder D Official 0 Substitute

First Name: Teni Middle Name: w Last Name: Anderson Suffix: Address 1: 201 Caroline Address 2: Room945 City: Houston State: Texas Zip+ 4: 77002 Telephone: (713) 368-6030 ext Fax: Email: terri.a@sbcglobal.net; terriyndersou@justex.net

X. Supersedeas Bond .· .· . . .

Supersedeas bond filed: I:>:<:] Yes 0 No If yes, date filed: July 30,2015.

Will file: 0 Yes 0 No

XI. Extraordinary Relief . . . .•

Will you request extraordinmy relief (e.g. tempormy or ancillary relief) from this Court? DYes ~:>:<:]No If yes, briefly state the basis for your request:

XII. Altei'Jlative Dispute Resolution/Mediation (Complete section if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, lOth, 11th, l2tl1, 13th, or 14th Court of Appeal) . .. ·

Should this appeal be referred to mediation? 0 Yes ~:>:<:]No

If no, please specify: This case has been previously mediated in the trial court proceeding Has the case been through an ADR procedure? ~:>:<:]Yes 0 No If yes, who was the mediator? Judge John Caselli What type of ADR procedure? Mediation At what stage did the case go through ADR? ~:>:<:]Pre- Trial D Post-Trial D Other If other, please specifY:

Type of case? Contract 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): Please see Exhibit 1 attached hereto and incorporated herein

How was the case disposed of? Trial Summary of relief granted, including amount of money judgment, and if any, damages awarded. Actual $783,421.05;exemplaty damages $1,800,000+ pre-judgment interest If money judgment, what was the amount? Actual damages: $783;42L05 Punitive (or similar) damages: $1,800,000.00 '

Page 6 of 11 ·. Attorney's fees (trial): $0.00 Attorney's fees (appellate): $0.00 Other: If other, please specify:

Will you challenge this Court's jurisdiction? DYes IZJ No Does judgment have language that one or more parties 11 take nothing 11 ? 0 Yes IZ! No Does judgment have a Mother Hubbard clause? IZJYes D No Other basis for fmality? Rate the complexity of the case (use I for least and 5 for most complex): D I D 2 D 3 D 4 IZJ5 Please make my answer to the preceding questions known to other parties in this case. IZJYes D No Can the patties agree on an appellate mediator? DYes IZJ 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: Not applicable Name of person filing out mediation section of docketing statement: William F. Hmmeyer

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: Trial Coutt:

Style:

Vs.

Page 7 of 11 XIV. Pro Bono J>rogram: (Complete section iffiling 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. ffyour 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? 0 Yes 1Z1 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? 0 Yes IZI 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 oflndigency 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? 0 Yes 1Z1 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? 0 Yes IZI No Tfyes, please attach an Affidavit oflndigency completed and executed by the appellant or appellee. Sample forms may be found in the Clerk's Office or on the intemet 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 prose party) Date: August 6, 2015

Printed Name: William F. Harmeyer StateBarNo.: 09019000

Electronic Signature: (s/Williarn F. Harmeyer (Optional)

Page 8 of 11 XVI. Certificate. of Service . . • .

The undersigned counsel eettifies 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 August 6, 2015

Signature of counsel (or prose party) Electronic Signature: Is/William f. Harmeyer (Optional)

State BarNo.: 09019000 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: (I) 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: August 6,2015 Matmer Served: eServed

First Name: T. Middle Name: Emest

Last Name: Freeman Suffix: Law Firm Name: The Freeman Law Firm

Address I: 1770 St. James Place Address 2: suite 120

City: Houston State Texas Zip+4: 77056 Telephone: (713) 973-1000 ext. Fax: (713)973-1004 Email: ernest@thefi·eemanlawfinn.com

If Attorney, Representing Party's Name: Appellee, Eeosorb International, Inc. Please enter the following for each person served:

Page 9 of 11 Date Served: August 6, 2015 Manner Served: eServed

First Name: Stephen

Middle Name: G.

Last Name: Scholl Suffix: Law Finn Name: The Freeman Law Firm

Address 1: 1770 St. James Place Address 2: Suite. 120

City: }louston State Texas Zip+4: 77056 Telephone: (713) 973-1000 ext. Fax: (713) 973-1004 Email: steve@thefi·eemanlawfum.com

If Attorney, Representing Party's Name: Appellee, Ecosorblnternational, Inc. Please enter the following for each person served:

Date Served: August 6, 2015 Manner Served: eServed

First Name: Jonathan

Middle Name:

Last Name: Stage!' Suffix: Law Firm Name: Jonathan Stoger Law

Address 1: 2301 Morse Street Address 2:

City: Houston State Texas Zip+4: 77019 Telephone: (713) 522-2848 ext. Fax: (713) 522-1120 Email: jstoger@stogerlaw.com

If Attorney, Representing Party's Name: Appellee, Ecosorb International, Inc. Please enter the following for each person served:

Page 10 of 11 Date Served: Angt1st 6, 2015 Manner Served: eServed

First Name: Richard

Middle Name: H. Last Name: Edelman Suffix: Law Firm Name: Barlow Jones LLP

Address 1: I 7225 El Cantina Real Address 2: Suite 400

City: Bouston State Texas Zip+4: 77058

Telephone: (281) 488~8440 ext. Fax: (281)488-6832

Email: rhe@edelmanoffice.com

If Attorney, Representing Party's Name: Appellants, Supply Pro, Inc., Harmon K. Fine

Page 11 of 11 EXHIBIT 1

Appellate Docket Number: 0 1-15-00621-CV

Appellate Case Style: Supply Pro, Inc. and Harmon K. Fine Individually v. Ecosorb International, Inc., d/b/a Biocel Technologies

DOCKETING STATEMENT

Section XII:

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 reliel):

I. Whether a portion of a proposed U.C.C. workout agreement for the early termination of purchase orders is unenforceable under the statute of frauds, or fails because there was no acceptance by the defendant of the proposed portion of the workout agreement, with a de novo standard of review.

2. Whether there was legally sufficient evidence to support the damages awarded for storage fees, with a de novo standard of review.

3. Whether a personal guarantee is unenforceable under the statute of frauds, with a de novo standard of review.

4. Whether there was legally sufficient evidence to support the award for fraud (liability and/or damages), with a de novo standard of review.

5. Whether there was legally sufficient evidence to support the awards for exemplary damages, whether there was an impermissible double recovery of exemplary damages by separate awards for the same acts, and whether the awards for exemplary damages violates constitutional restraints, with a de novo standard of review.