Supply Pro, Inc. and Harmon K. Fine, Individually v. Ecosorb International, Inc., D/B/A Biocel Technologies ( 2015 )

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:<:] 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.