VicNRG LLC v. FCStone, LLC, FCStone Trading, LLC and FCStone Group, Inc.

Opinion

ACCEPTED

14-15-00194-CV

FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 3/9/2015 2:09:47 PM CHRISTOPHER PRINE

CLERK

Blumberg & Bagley, L.L.P.

Attorneys

2304 West Interstate 20, Suite 190 FILED IN Arlington, Texas 76017 14th COURT OF APPEALS www.blumbergbagley.com HOUSTON, TEXAS 3/9/2015 2:09:47 PM

Peter F. Bagley (817) 277-1500 Board Certified, Consumer and Commercial Law, Texas Board of Legal Specialization CHRISTOPHER Facsimile (817) A. PRINE

277-1170

Fellow, College of the State Bar of Texas Clerk

March 9, 2015

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

Re: VICNRG LLC v. FCStone, LLC et al.; Appeal No. 14-15-00194-CV

Dear Clerk:

According to my call with your office, the above-referenced appeal has been assigned to th

the 14 Court of Appeals as an accelerated appeal. As counsel for Appellant VicNRG LLC, I am notifying you that I do not believe the case fits under any of the categories of accelerated appeals described by Tex. R. App. P. 28.1, and therefore I ask that the court treat this as a non-accelerated appeal.

You are advised that the parties have a disagreement about whether a final order exists in the underlying case. Appellees believe an October 2014 order of severance serves as a final judgment; we argue that the trial court must still sign a final judgment for the reasons indicated in our Motion for Entry of Final Judgment. The trial court has not ruled on the motion, but we filed a Conditional Notice of Appeal because we felt that if Tex. R. Civ. P. 306a applied, we had to file the notice of appeal by February 20, 2015. It is my understanding that a notice of appeal invokes the appellate court’s jurisdiction regardless of how the notice of appeal is described. Tex. R. App. P. 25.1.

When I spoke to your office, I was advised that I had to speak to the trial court about the characterization of this appeal. Today I spoke to Phyllis Washington, the court’s senior civil post-judgment/appeals clerk, with Danielle Jimenez, the court clerk, on the call. Ms. Washington advised me that this case remains an active case on the trial court’s docket and that she can only show the appeal as an accelerated appeal because there is no final order in the case. Again, I do not believe rule 28.1 applies, and therefore I do not believe the deadlines associated with accelerated appeals apply. Please let me know if this case remains an accelerated case or if I must file a motion to recast the appeal.

Yours sincerely,

/s/ Peter F. Bagley Peter F. Bagley

PFB/dsa

cc: VICNRG LLC

cc: VIA ELECTRONIC SERVICE Mr. James T. Drakeley Mr. R. Scott Seifert Hiersche, Hayward, Drakeley & Urbach, P.C. 15303 Dallas Parkway, Suite 700 Addison, Texas 75001 Co-Counsel for Plaintiff VicNRG LLC;

cc: VIA ELECTRONIC SERVICE Mr. Mark K. Glasser Ms. Tracy LeRoy Sidley LLP 1000 Lousiana, Ste. 6000 Houston, Texas 77002 Counsel for Defendants FCStone, LLC, FCStone Trading, LLC, and FCStone Group, Inc.