in Re Midwestern Cattle Marketing, LLC

ACCEPTED
02-16-00128-CV
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
4/20/2016 11:31:42 AM
DEBRA SPISAK
CLERK
No. ___________________
_______________________________________________________________
IN THE
SECOND DISTRICT COURT OF APPEALS OF TEXAS
AT FORT WORTH
_______________________________________________________________
In re MIDWESTERN CATTLE MARKETING, LLC,
RELATOR,
_______________________________________________________________
FROM THE
ST
271 JUDICIAL DISTRICT COURT
OF JACK COUNTY, TEXAS
THE HONORABLE JOHN FOSTEL PRESIDING
_______________________________________________________________
RECORD IN SUPPORT OF
PETITION FOR WRIT OF MANDAMUS
_______________________________________________________________
Christopher B. Trowbridge
Texas Bar No. 24008182
Beverly A. Whitley
Texas Bar No. 21374500
R. Heath Cheek
Texas Bar No. 24053141
Gregory D. Kelminson
Texas Bar No. 24070045
BELL NUNNALLY & MARTIN LLP
3232 McKinney Avenue, Suite 1400
Dallas, Texas 75204-2429
Telephone: (214) 740-1400
Telecopy: (214) 740-1499
ATTORNEYS FOR RELATOR
MIDWESTERN CATTLE
MARKETING, LLC
INDEX TO RECORD
PAGE
A. Affidavit of Christopher B. Trowbridge (signed April 18, 2016) ................... 1
Exhibit 1: Plaintiff’s Original Petition (filed July 6, 2015) ......................... 2
Exhibit 2: Petition in Intervention (filed November 24, 2015) ................. 15
Exhibit 3: Plaintiff’s Motion to Strike Petition in Intervention, and
Alternative Motion to Sever (filed December 18, 2015) .......... 27
Exhibit 4: Tony Lyon’s Statement in Opposition of Plaintiff’s
Motion to Strike Petition in Intervention, and Alternative
Motion to Sever (filed February 4, 2016) ................................ 33
Exhibit 5: Owen Lyon’s and Monna Lyons’ Statement in
Opposition to Plaintiffs’ Motion to Strike Petition in
Intervention, and Alternative Motion to Sever (filed
February 4, 2016) ..................................................................... 36
Exhibit 6: First Amended Petition in Intervention (filed February
26, 2016) .................................................................................. 40
Exhibit 7: Intervenor’s Response to Motion to Strike Petition in
Intervention, and Alternative Motion to Sever (filed
February 26, 2016) .................................................................... 57
Exhibit 8: Order Denying Plaintiff’s Motion to Strike Petition in
Intervention, and Alternative Motion to Sever (signed
March 21, 2016) ........................................................................ 80
Exhibit 9: Transcript of Hearing (held March 4, 2016) ............................. 81
Exhibits ..................................................................................... 93
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing was served upon the persons listed below in the manner and on the date
indicated.
VIA E-MAIL VIA E-MAIL
Steven C. Bankhead, Esq. James S. Robertson, Esq.
8111 Preston Road, Suite 500 Eric S. Weber, Esq.
Dallas, Texas 75225-6377 Glast, Phillips & Murray, P.C.
14801 Quorum Drive, Suite 500
Attorney for Tony E. Lyon Dallas, Texas 75254
d/b/a Lyon Farms
Attorneys for Monna and Owen Lyon
VIA E-MAIL VIA CM,RRR
#9414 7266 9904 2058 5801 64
Derrick S. Boyd, Esq.
Michael A. Simpson, Esq. Judge John Fostel
Kristy P. Campbell, Esq. 271st Judicial District
Simpson, Boyd, Powers 100 N. Main, Suite 308
& Williamson Jacksboro, Texas 76458
P.O. Box 957
105 N. State Street, Suite B Respondent
Decatur, Texas 76234
Attorneys for Northwest
Cattle Feeders, L.L.C.
and Riley Livestock, Inc.
DATED this the 20th day of April, 2016.
/s/ Beverly A. Whitley
Beverly A. Whitley
09964.00002/2610385_1.DOC
AFFIDAVIT OF CHRISTOPHER B. TROWBRIDGE
STATE OF TEXAS §
§
COUNTY OF DALLAS §
BEFORE ME, the undersigned notary public, on this day appeared
CHRISTOPHER B. TROWBRIDGE, who, after being duly sworn by me, deposed and
said:
1. "My name is Christopher B. Trowbridge. I have personal knowledge of the
facts set forth in this Affidavit. I am duly authorized to make this Affidavit and am
competent to testify to the matters contained in this Affidavit. I swear that every
statement made in this Affidavit is made on my personal knowledge and is true and
correct.
2. "I am an attorney licensed to practice law in the State of Texas. I am
counsel of record for the plaintiff, Midwestern Cattle Marketing, Inc. in the case styled
Midwestern Cattle Marketing, LLC v. Tony E. Lyon dlb/a Lyon Farms,
Individually, et al., Cause No. 15-07-061, in the 271 st District Court, Jack County,
Texas.
3. "Attached hereto as Exhibits 1 through 8 are true and correct copies
of pleadings and orders in Cause No. 15-07-061.
4. "Attached hereto as Exhibit 9 is a true and correct copy of the
transcript of a hearing held March 4, 2016, and Exhibits A through D introduced
in evidence during that hearing."
FURTHER AFFIANT SAYETH NAUGHT.
Christopher B. Trowbridge
SUBSCRIBED AND SWORN TO BEFORE ME on this the 18th day of
April, 2016.
~9v``
NOTARY PUBLIC in and for
the State of TEXAS
09964.00002/26 10428_1 .DOC
AFFIDAVIT OF CHRISTOPHER B. TROWBRIDGE PAGE i
R001
CAUSENO. t :::>- 01 -o {p(
MIDWESTERN CATTLE MARKETING, § IN THE DISTRICT COURT
LLC, §
§
Plaintiff, §
§
v. §
§
TONYE. LYON d/b/a LYON FARMS, § 271 51 JUDICIAL DISTRICT
individually, OWEN LYON, individually §
and MONNA LYON, individually, §
§
Defundanb. §
§ JACK COUNTY, TEXAS
PLAINTIFF'S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT :
Plaintiff Midwestern Cattle Marketing, LLC ("MWC") complains of Defendants Tony E.
Lyon d/b/ a Lyon Farms ("Tony Lyon"), individually, Owen Lyon ("Owen Lyon"), individually,
and Monna Lyon, individually ("Monna Lyon") (together "Defenda nts") and respectfully shows
the Court the following:
I.
DISCOVERY CONTROL PLAN & MONETARY RELIEF
1. Discovery is intended to be conducted under Level 2, pursuant to Rule 190.3 of
the Texas Rules of Civil Procedure. MWC reserves the ri ght to request reassigmnent to a
different discovery control plan level.
2. MWC seeks monetary relief greater than $ 1,000,000.00.
FIL-
- - - - A.M I : ,;i._() P.M.
JUL 6 2015
TRACIE PIPPIN DIST. CLERK
~CK COUNTY, -rEJ273 S.W.3d 152, 155 (Tex. 2008).
4. No Justiciable Interest. An intervening party must have a justiciable interest in
the pending suit in order to have a right to intervene under Rule 60 of the Texas Rules of Civil
Procedure. Id. at 154-55; Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d
652, 658 (Tex. 1990). “[T]he intervenor’s interest must be such that if the original action had
never been commenced, and he had first brought it as the sole plaintiff, he would have been
entitled to recover in his own name to the extent of at least a part of the relief sought in the
original suit.” In re Union Carbide Corp., 273 S.W.3d at 155 (internal citations omitted).
5. The justiciable interest requirement was designed to protect “pending cases from
having interlopers disrupt the proceedings.” Id. In this case, that is exactly what we have. The
interlopers (i.e., the Intervenors) are seeking to unnecessarily complicate the pending action by
injecting unrelated claims that do not arise from and have no relation to the transaction forming
the basis of this lawsuit. The Intervention relates to an agreement to sell specified cattle. It
PL.’S MOTION TO STRIKE PET. IN INTERVENTION, ETC. PAGE 2
R028
contains no allegations that relate to the George Cattle Company scheme, nor do Intervenors
have any claims for relief that deal in any way with the money Plaintiff is seeking related to the
George Cattle Company scheme.
6. The only commonality between the Lyon Defendants and Intervenors appears to
be they each occupy a position adverse to Plaintiff. Such a tenuous relationship does not
establish a justiciable interest sufficient to support intervention by the interloping Intervenors.
See id. at 154-55 (stating that the mere fact that plaintiff and intervenor each sought a recovery
from a common defendant did not give intervenor a justiciable interest in the original lawsuit
filed by plaintiff).
7. Multiplication of Issues. The Intervention will multiply the issues and
complicate this case. See Guaranty Fed. Sav. Bank, 793 S.W.2d at 657. The Intervention would
add two new parties, new claims, an additional $800,000 transaction involving an otherwise non-
involved party, and completely new fact issues, none of which involve the George Cattle
Company. The Intervention would require new depositions of the three Lyon Defendants, who
Plaintiff has already deposed. The Intervention could delay and lengthen the trial. And,
importantly, the intervention could cause jury confusion in that Intervenors seek to associate
Plaintiff with the Lyon Defendants, who both Plaintiff and Intervenors have alleged to be
untrustworthy.
8. The Intervention is Not Essential. The Intervention is not essential to
effectively protect Intervenors’ interests. See Guaranty Fed. Sav. Bank, 793 S.W.2d at 657;
Surgitek, Bristol-Meyers Corp. v. Abel, 997 S.W.2d at 598, 604 (Tex. 1999) (defining “essential”
to mean “indispensably necessary” and “necessary, such that one cannot do without it”).
Intervenors’ claims are alleged to have occurred in 2015, and are in no danger of being barred by
PL.’S MOTION TO STRIKE PET. IN INTERVENTION, ETC. PAGE 3
R029
limitations. Intervenors do not seek any relief related to the money Plaintiff is seeking from
Defendants. In short, Intervenors have neither pled nor established that their participation in this
lawsuit is so necessary to the protection of their interests that they will be left without recourse if
their Intervention is not allowed.
ALTERNATIVE MOTION TO SEVER AND REALIGN
9. The Court has broad authority over petitions in intervention, including the
authority to order that the petition in intervention be severed from the existing lawsuit. Saldana
v. Saldana, 791 S.W.2d 316, 320 (Tex. App. — Corpus Christi 1990, no pet.) A claim is
severable if (1) the controversy involves more than one cause of action, (2) the severed claim is
one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed
claim is not so interwoven with the remaining action that they involve the same facts and issues.
Guaranty Fed. Sav. Bank, 793 S.W.2d at 658.
10. Intervenors’ claims satisfy these three prongs. Intervenors seek to add five causes
of action, all of which depend on different facts from the causes of action asserted by Plaintiff in
the original lawsuit. Intervenors’ claims are capable of being asserted in an independent lawsuit.
Each of Intervenors’ claims arises out of a transaction related to 554 head of cattle, a transaction
that has no relation to the transactions at issue in the underlying lawsuit — the George Cattle
Company scheme. Thus, the claims to be severed are not interwoven with the claims asserted in
the original lawsuit and are properly severable if not stricken by the Court.
11. Finally, if the Court severs the Intervenors’ claims against Plaintiff into a
separately numbered cause, Plaintiff requests that the parties be realigned in the new cause to
place the Intervenors as plaintiffs because Plaintiff has not asserted counterclaim against
Intervenors at this time.
PL.’S MOTION TO STRIKE PET. IN INTERVENTION, ETC. PAGE 4
R030
WHEREFORE, Plaintiff prays that the Court strike the Intervention, or, in the
alternative, sever the Intervenors’ claims into a separately numbered cause and realign the
parties, and grant Plaintiff such other or further relief, legal or equitable, to which Plaintiff may
be justly entitled or the Court deems proper.
Respectfully submitted,
BELL NUNNALLY & MARTIN LLP
By: /s/ Christopher B. Trowbridge
Christopher B. Trowbridge
ctrowbridge@bellnunnally.com
Texas Bar No. 24008182
R. Heath Cheek
hcheek@bellnunnally.com
Texas Bar No. 24053141
Gregory D. Kelminson
gkelminson@bellnunnally.com
State Bar No. 24070045
3232 McKinney Avenue, Suite 1400
Dallas, Texas 75204-2429
(214) 740-1400 Telephone
(214) 740-1499 Facsimile
ATTORNEYS FOR PLAINTIFF
MIDWESTERN CATTLE MARKETING,
LLC
PL.’S MOTION TO STRIKE PET. IN INTERVENTION, ETC. PAGE 5
R031
CERTIFICATE OF CONFERENCE
A conference was held on December 18, 2015 with Kristy P. Campbell, attorney for
Intervenors, on the merits of this motion. Agreement could not be reached; therefore, it is
presented to the Court for determination.
/s/ Christopher B. Trowbridge
Christopher B. Trowbridge
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing instrument
was served by delivering the same to the person listed below in the manner and on the date
indicated.
VIA TXCOURTS.GOV VIA TXCOURTS.GOV
Steven C. Bankhead, Esq. James S. Robertson, III, Esq.
8111 Preston Road, Suite 500 Eric S. Weber, Esq.
Dallas, Texas 75225-6377 Glast, Phillips & Murray, P.C.
14801 Quorum Drive, Suite 500
Dallas, Texas 75254-1449
VIA TXCOURTS.GOV
Derrick S. Boyd, Esq.
Michael A. Simpson, Esq.
Kristy P. Campbell, Esq.
Simpson, Boyd, Powers & Williamson
P.O. Box 957
105 N. State Street, Suite B
Decatur, Texas 76234
DATED this 18th day of December, 2015.
/s/ Christopher B. Trowbridge
2451781_1.DOCX / 9964.1
PL.’S MOTION TO STRIKE PET. IN INTERVENTION, ETC. PAGE 6
R032
E-Filed for Record
2/4/2016 1:10:38 PM
Jack County District Clerk , TX
By: Tracie Pippin
CAUSE NO. 15-07-061
MIDWESTERN CATTLE MARKETING, § IN THE DISTRICT COURT
LLC, §
§
Plaintiff, §
§
vs. § 271ST JUDICIAL DISTRICT
§
TONY E. LYON D/B/A LYON FARMS, §
INDIVIDUALLY, OWEN LYON, §
INDIVIDUALLY AND MONNA LYON, §
INDIVIDUALLY, §
§
Defendants, §
§
and §
§
NORTHWEST CATTLE FEEDERS, L.L.C., §
and RILEY LIVESTOCK, INC., §
§
Intervenors. § JACK COUNTY, TEXAS
TONY LYON’S STATEMENT IN OPPOSITION TO
PLAINTIFF’S MOTION TO STRIKE PETITION IN INTERVENTION,
AND ALTERNATIVE MOTION TO SEVER
TONY LYON, defendant in the above-numbered and entitled cause and herein called the
“Lyon”, files this statement in opposition to the motion to strike petition in intervention and
alternative motion to sever filed by Plaintiff, MIDWESTERN CATTLE MARKETING, LLC,
and would show the Court the following:
1. The Lyon has been sued in this case by Plaintiff and by Intervenors and the claims
against the Lyons, these claims against the Lyon are wholly without merit but that’s for another
day — overlap and are interwoven.
____________________________________________________________________________________________
TONY LYON’S STATEMENT IN OPPOSITION TO PAGE 1
PLAINTIFF’S MOTION TO STRIKE PETITION IN INTERVENTION
AND ALTERNATIVE MOTION TO SEVER
R033
2. Dismissal of Intervenors’ claims in response to Plaintiff’s motion at hand will
undoubtedly result in a second case being filed against Lyon (and the Plaintiff). An order of
severance likewise will result in a separate proceeding against Lyon. Either result would lead to
unnecessary extra expense to Lyon, an expense he can ill afford. Since Lyons has to defend
himself against the Plaintiff’s and Intervenors’ allegations made in this lawsuit, Lyon would
prefer to do so in one forum, in one case, under one scheduling order, at one trial, before one
jury. It is bad enough defending one lawsuit; it is doubly bad defending a second lawsuit over
claims related to, and part of, the first lawsuit and that could be litigated in the first lawsuit, more
efficiently and more economically.
FOR THESE REASONS, Lyon request the Court to deny Plaintiff’s motion to strike
Intervenors’ plea in intervention and Plaintiff’s alternative motion to sever, unless the Court were
to dismiss with prejudice Intervenors’ claims against the Lyons, in which case, the Lyons of
course would support an order dismissing Intervenors’ claims.
Lyon also request such other and further relief to which they may be justly entitled.
Respectfully submitted:
/s/ Steven C. Bankhead
Steven C. Bankhead
State Bar No. 01676700
8111 Preston Rd., Suite 500
Dallas, Texas 75225
214-750-8555
214-750-8001 (Facsimile)
stevebankhead@sbcglobal.net
ATTORNEY FOR DEFENDANT
TONY LYON
____________________________________________________________________________________________
TONY LYON’S STATEMENT IN OPPOSITION TO PAGE 2
PLAINTIFF’S MOTION TO STRIKE PETITION IN INTERVENTION
AND ALTERNATIVE MOTION TO SEVER
R034
CERTIFICATE OF SERVICE
I certify that on February 4, 2016, I served a true and correct copy of the foregoing
document on the following person(s) by ELECTRONIC SERVICE in accordance with Texas
Rule of Civil Procedure 21a:
Christopher B. Trowbridge James S. Robertson
R. Heath Cheek Glast, Phillips & Murray
Gregory D. Kelminson 14801 Quorum Driver, Suite 500
BELL, NUNNALLY & MARTIN, LLP Dallas, Texas 75254
3232 McKinney Avenue, Suite 1400
Dallas, TX 75204-2429
Attorneys for Plaintiff Attorneys for Owen and Monna Lyon
Derrick S. Boyd
Michael A. Simpson
Kristy P. Campbell
SIMPSON, BOYD, POWERS & WILLIAMSON
P.O. Box 957
Decatur, TX 76234
Attorneys for Intervenors
/s/ Steven C. Bankhead
Steven C. Bankhead
____________________________________________________________________________________________
TONY LYON’S STATEMENT IN OPPOSITION TO PAGE 3
PLAINTIFF’S MOTION TO STRIKE PETITION IN INTERVENTION
AND ALTERNATIVE MOTION TO SEVER
R035
E-Filed for Record
2/4/2016 1:41:12 PM
Jack County District Clerk , TX
By: Tracie Pippin
CAUSE NO. 15-07-061
MIDWESTERN CATTLE MARKETING, § IN THE DISTRICT COURT
LLC, §
§
Plaintiff, §
§
vs. § 271ST JUDICIAL DISTRICT
§
TONY E. LYON D/B/A LYON FARMS, §
INDIVIDUALLY, OWEN LYON, §
INDIVIDUALLY AND MONNA LYON, §
INDIVIDUALLY, §
§
Defendants, §
§
and §
§
NORTHWEST CATTLE FEEDERS, L.L.C., §
and RILEY LIVESTOCK, INC., §
§
Intervenors. § JACK COUNTY, TEXAS
OWEN LYON’S AND MONNA LYON’S STATEMENT IN OPPOSITION TO
PLAINTIFF’S MOTION TO STRIKE PETITION IN INTERVENTION,
AND ALTERNATIVE MOTION TO SEVER
OWEN LYON and MONNA LYON, defendants in the above-numbered and entitled
cause and herein called the “Lyons”, file this statement in opposition to the motion to strike
petition in intervention and alternative motion to sever filed by Plaintiff, MIDWESTERN
CATTLE MARKETING, LLC, and would show the Court the following:
1. The Lyons have been sued in this case by Plaintiff and by Intervenors and the
claims against the Lyons — the claims against the Lyons are wholly without merit but that’s for
another day — overlap and are interwoven.
____________________________________________________________________________________________
OWEN LYON’S AND MONNA LYON’S STATEMENT IN OPPOSITION TO PAGE 1
PLAINTIFF’S MOTION TO STRIKE PETITION IN INTERVENTION
AND ALTERNATIVE MOTION TO SEVER
6189165_1 – GPM File No. 12798.20
R036
2. Dismissal of Intervenors’ claims in response to Plaintiff’s motion at hand will
undoubtedly result in a second case being filed against the Lyons (and the Plaintiff). An order of
severance likewise will result in a separate proceeding against the Lyons. Either result would
lead to unnecessary extra expense to the Lyons, an expense they can ill afford. Since the Lyons
have to defend themselves against the Plaintiff’s and Intervenors’ allegations made in this
lawsuit, the Lyons would prefer to do so in one forum, in one case, under one scheduling order,
at one trial, before one jury. It is bad enough defending one lawsuit; it is doubly bad defending a
second lawsuit over claims related to, and part of, the first lawsuit and that could be litigated in
the first lawsuit, more efficiently and more economically.
FOR THESE REASONS, the Lyons request the Court to deny Plaintiff’s motion to strike
Intervenors’ plea in intervention and Plaintiff’s alternative motion to sever, unless the Court were
to dismiss with prejudice Intervenors’ claims against the Lyons, in which case, the Lyons of
course would support an order dismissing Intervenors’ claims.
The Lyons also request such other and further relief to which they may be justly entitled.
____________________________________________________________________________________________
OWEN LYON’S AND MONNA LYON’S STATEMENT IN OPPOSITION TO PAGE 2
PLAINTIFF’S MOTION TO STRIKE PETITION IN INTERVENTION
AND ALTERNATIVE MOTION TO SEVER
6189165_1 – GPM File No. 12798.20
R037
Respectfully submitted:
/s/ James S. Robertson, III
James S. Robertson, III
State Bar No. 17061075
Direct Dial: 972-419-7136
Direct Fax: 469-206-5048
jrobertson@gpm-law.com
Eric S. Weber
State Bar No. 24071835
Direct Dial: 972-419-7138
Direct Fax: 469- 206-5065
eweber@gpm-law.com
GLAST, PHILLIPS & MURRAY, P.C.
14801 Quorum Drive, Suite 500
Dallas, TX 75254-1449
ATTORNEYS FOR DEFENDANTS,
OWEN LYON AND MONNA LYON
____________________________________________________________________________________________
OWEN LYON’S AND MONNA LYON’S STATEMENT IN OPPOSITION TO PAGE 3
PLAINTIFF’S MOTION TO STRIKE PETITION IN INTERVENTION
AND ALTERNATIVE MOTION TO SEVER
6189165_1 – GPM File No. 12798.20
R038
CERTIFICATE OF SERVICE
I certify that on February 4, 2016, I served a true and correct copy of the foregoing
document on the following person(s) by ELECTRONIC SERVICE in accordance with Texas
Rule of Civil Procedure 21a:
Christopher B. Trowbridge Steven C. Bankhead
R. Heath Cheek 8111 Preston Rd., Suite 500
Gregory D. Kelminson Dallas, TX 75225
BELL, NUNNALLY & MARTIN, LLP
3232 McKinney Avenue, Suite 1400 Attorney for Tony E. Lyon d/b/a Lyon Farms
Dallas, TX 75204-2429
Attorneys for Plaintiff
Derrick S. Boyd
Michael A. Simpson
Kristy P. Campbell
SIMPSON, BOYD, POWERS & WILLIAMSON
P.O. Box 957
Decatur, TX 76234
Attorneys for Intervenors
/s/ James S. Robertson, III
James S. Robertson, III
____________________________________________________________________________________________
OWEN LYON’S AND MONNA LYON’S STATEMENT IN OPPOSITION TO PAGE 4
PLAINTIFF’S MOTION TO STRIKE PETITION IN INTERVENTION
AND ALTERNATIVE MOTION TO SEVER
6189165_1 – GPM File No. 12798.20
R039
CAUSE NO. 15-07-061
MIDWESTERN CATTLE § IN THE DISTRICT COURT
MARKETING, LLC §
§
Plaintiff §
§
vs. §
§
TONYE. LYONdjb/aLYONFARMS, §
OWENLYONandMONNALYON §
§ JACK COUNTY, TEXAS
Defendant §
§
and §
§
NORTHWEST CATTLE FEEDERS, §
L.L.C. and RILEY LIVESTOCK, INC. §
§
Intervenors § 271ST JUDICIAL DISTRICT
FIRST AMENDED PETITION IN INTERVENTION
TO THE HONORABLE JUDGE OF THE COURT:
Northwest Cattle Feeders, LLC and Riley Livestock, Inc. (hereinafter collectively
"Intervenors") file this First Amended Petition in Intervention, and in support of same
would respectfully show as follows:
1.0 Discovery Level
1.1 Pursuant to TRCP 190.1, Intervenors respectfully requests that discovery
in this case be conducted under Level 3 by further order of this Court, as set forth in
2.0 Grounds for Intervention
2.1 Midwestern Cattle Marketing, LLC (hereinafter Midwestern Cattle) filed
the present lawsuit against Defendants Tony E. Lyon d/b/a Lyon Farms, Owen Lyon
and Monna Lyon for what it calls a "deplorable scheme" by its agent to defraud others.
FlRST AMENDED PETITION IN INTERVENTION - PAGE 1
R040
Intervenors are victims of that scheme committed by Midwestern Cattle's agent. In
addition, Midwestern Cattle retained the benefits of the fraudulent scheme committed
by its agent. As such, Midwestern Cattle is liable and responsible for the harm caused by
its agents in defrauding Intervenors.
2.2 This litigation arises out of a scheme perpetuated by Tony E. Lyon to
defraud purchases of cattle. Intervenors were purchasers victimized by this fraudulent
scheme. Lyon committed this scheme while acting as an agent for Midwestern Cattle.
Midwestern Cattle also alleges that Owen Lyon and Monna Lyon were also participants
in the scheme involving the alleged purchase and sell of cattle.
2 .3 On or about July 6, 2015, Midwestern Cattle filed this suit against Tony E.
Lyon d/b/a Lyon Farms, Owen Lyon and Monna Lyon (hereafter sometimes collectively
referred to as "Defendants") seeking damages arising from Lyon's conduct as
Midwestern Cattle's agent.
2-4 As set forth below, Intervenors are entitled to recover legal and equitable
relief against Midwestern Cattle and Defendants. As such, Intervenors have a justiciable
interest in this suit, and are proper parties to the present suit. Intervention will not
unnecessarily or unreasonably complicate the case by an excessive multiplication of
issues, and is essential to protect Intervenors' interest.
2.5 Intervenors claims will be affected by resolution of the present case.
Among other things, the resolution of Intervenors claims will be affected by resolution
of the pending case because the same scheme by the same parties that victimized
Intervenors is alleged by Plaintiff. Moreover, there is a joint interest in the cattle
Plaintiff seized from Defendants, or proceeds from sale of that cattle.
FIRST AM ENDED PETITION IN INTERVENTION - PAGE 2
R041
2.6 Intervenors, in their own right, are entitled to assert the causes of action
set forth herein. Intervenors, in their own right, were entitled to assert this action in
their own name against Plaintiff and Defendants, and any cross-claims or counterclaims
between Plaintiff and Defendants would be properly before the Court in that suit.
2.7 Intervention will not unduly complicate or confuse any of the issues in this
case. To the contrary, there is substantial overlap between the issues raised by Plaintiff's
claims and the issues raised by Intervenors' claims, and such claims are interwoven and
arise from the same operative set of facts - namely the same cattle fraud scheme.
2.8 Adjudication and disposition of this case without intervention could
reasonably impair or impede Intervenors' ability to protect their interest in recovering
damages incurred as a result of the cattle fraud scheme, and in recovering whatever
interest Intervenors held in the cattle Plaintiff seized from Defendants before filing suit.
3 .0 Venue
3.1 Venue is proper in Jack County for the claims asserted by Northwest Cattle
Feeders pursuant to Texas Civil Practice & Remedies Code §i5.002(a)(2) because one or
more parties are residents of Jack County, Texas. Additionally, venue is proper under
Texas Civil Practice & Remedies Code §i5.002(a)(1) because a substantial part of the
acts and omissions giving rise to Intervenors' claims occurred in Jack County, Texas.
Venue is also proper in Jack County, Texas under Texas Civil Practice & Remedies Code
§15.062.
3.2 Venue is proper in Wise County for the claims asserted by Riley Livestock,
Inc. pursuant to Texas Civil Practice & Remedies Code §15.002(a)(2) because Lyon
Defendants are residents of Jack County, Texas. Additionally, venue is proper under
Texas Civil Practice & Remedies Code §15.002(a)(1) because a substantial part of the
FIRST AMENDED P ETITION IN INTERVENTION - PAGE 3
R042
acts and omissions giving rise to Intervenors' claims occurred in Jack County, Texas.
Venue is also proper in Jack County, Texas under Texas Civil Practice & Remedies Code
§15.062.
4.0 Factual Background
4.1 Midwestern Cattle admits that it acts as cattle brokers. Midwestern Cattle
buys cattle from a seller and then sells the cattle to a buyer. Intervenors operate a feed
lot and otherwise trade in cattle. Prior to 2015, Intervenors were introduced by Jason
O'Connell of Midwestern Cattle to Tony Lyon d/b/a Lyon Farms (hereinafter "Lyon").
Lyon was represented to Intervenors to be a cattle order buyer for Midwestern Cattle
operating in Texas. From that introduction, a business relationship developed between
lntervenors and Midwestern Cattle (through its agent Tony Lyon) for the purchase and
sale of cattle.
4.2 In March 2015, after multiple transactions that appeared to be successful,
Intervenors entered into an agreement with Midwestern Cattle through Lyon to
purchase 554 head of cattle. Before entering into this agreement, Jeff Cox (on behalf of
lntervenors) met with Lyon in Jack County to discuss the purchase. Lyon represented
that cattle in a pasture he showed Cox were the 554 head of cattle Intervenors were
purchasing. At all times relevant herein in his dealings with Cox (on behalf of
Intervenors), Lyon was acting as an agent and representative of Midwestern Cattle.
4.3 Midwestern Cattle admits that Tony Lyon was its agent. Midwestern Cattle
provided Tony Lyon with a Midwestern Cattle checkbook and signature stamp enabling
him to conduct the business of Midwestern Cattle. This permitted Lyon to buy and sell
cattle on a "float" basis. At no time did Midwestern Cattle investigate Lyon's background
to determine whether he was fit for such authority to act on behalf of Midwestern Cattle.
FIRST AMENDED PETITION IN INTERVENTION - PAGE 4
R043
4-4 After Intervenors agreed to purchase the cattle in question, Midwestern
Cattle sent an invoice to Intervenors dated March 31, 2015. The recipient of the invoice
was Northwest Cattle Feeders, LLC. The amount of the invoice was $798,35i.19. The
invoice was specifically for 554 head of cattle with the description "Steers sold from
Perrin, TX." This invoice relates to the specific cattle Cox discussed with Lyon in Jack
County.
4.5 Upon receipt of the invoice, Riley Livestock, Inc. \vrote a check dated
March 31, 2015 in the amount of $798,319.08. This check was made payable to
Midwestern Cattle. At the request of Midwestern Cattle, the check was delivered Points
West Community Bank for deposit into Midwestern Cattle's bank account. Midwestern
specifically attested that the "livestock referenced by this document or other
communications specific to the transaction and transferred are of US origin (born &
raised)."
4.6 After receiving and depositing the check, Intervenors never saw the cattle.
The cattle were to be delivered to Francis Farms for feeding and delivery for sale 60-90
days later. However, when it came time to se11the554 head of cattle, Midwestern Cattle
failed to deliver the 554 head of cattle to Intervenors.
4.7 Midwestern Cattle paid itself a commission of $5,335.10 for the sale of the
554 head of cattle. Midwestern Cattle received and retained this commission despite
failing to deliver the cattle.
4.8 To date, Midwestern Cattle and its agent (Tony Lyon) have failed to deliver
the 554 head of cattle to Intervenors. To date, Midwestern Cattle and its agent (Tony
Lyon) have failed to return the $798,319.08 that Intervenors paid.
FIRST AMENDED PETITION IN INTERVENTION - PAGE 5
R044
4.9 In June 2015, shortly before time for the cattle to be sold, Midwestern
Cattle informed Jeff Cox that there was "a problem" with Lyon. At no time before this
conversation did Midwestern Cattle ever indicate any problems with Lyon or his
operations on behalf of Midwestern Cattle in Texas.
4.10 Jeff Cox travelled to Texas to speak with Tony Lyon. When he arrived, Cox
learned that other Midwestern Cattle representatives (Jason O'Connell and Tim Correll)
had been present on the Lyon property. Midwestern Cattle seized approximately 892
head of cattle from Lyon Farms, and represented to Cox that the seized cattle would be
used to try to "make whole" both Cox and Midwestern Cattle.
4.11 Later in 2015, 41 head of cattle were delivered to Intervenors' business
location in Nebraska. These head of cattle were represented to be from the seized cattle.
Intervenors liquidated the 41 head and had checks for the proceeds made out jointly to
Midwestern Cattle and Northwest Cattle Feeders.
4.12 Midwestern Cattle has not disclosed what happened with the remaining
seized cattle despite requests by Intervenors for this information, Upon information and
belief, Midwestern Cattle has liquidated some or all of the seized cattle and retained the
proceeds from those sales for its use to the exclusion of Intervenors.
5.0 Conditions Precedent
5.1 With respect to Intervenors' claims, all conditions precedent have been
performed or have occurred. TRCP 54.
6.o Constructive Trust and Accounting
6.1 Intervenors are entitled to a constructive trust over cattle or proceeds from
the sale of cattle seized by Plaintiff or on behalf of Plaintiff.
FIRST AMENDED PETITION IN INTERVENTION -PAGE 6
R045
6 .2 A constructive trust is appropriate because of the actual fraud or
constructive fraud committed by Plaintiff and Defendants.
6.3 Plaintiff would be unjustly enriched by retaining benefits from the cattle
seized or sold. Specifically, upon information and belief, Plaintiff took possession of 892
head of cattle to its exclusive possession, sold the cattle, and retained the proceeds from
such sale to the exclusion of Intervenors.
6.4 A constructive trust over any and all cattle, proceeds from the sale of
seized cattle, or other funds recovered by Plaintiff from others as a result of the wrongful
conduct of its agent is appropriate and necessary to prevent unjust enrichment by
Plaintiff.
6.5 Intervenors also seek an accounting for the seized cattle or any proceeds
from the sale of the seized cattle.
7.0 Cause of Action for Breach of Contract
7.1 Intervenors incorporate the allegations contained in Section 4 above as if
fully set forth herein.
7.2 The agreement between Midwestern Cattle and Intervenors to purchase
554 head of cattle was a contract. The contract is evidenced in writing by the invoice
dated March 31, 2015.
7.3 Intervenors performed by tendering payment of the amount set forth in
the invoice.
7-4 Midwestern Cattle failed to perform by (a) failing to deliver the 554 head
of cattle. At time of sale, the 554 head of cattle were not available for Intervenors to sell;
or (b) failing to return the funds paid by Intervenors when it became clear to
Midwestern Cattle that the 554 head were not delivered to Intervenors to be resold.
FIRST AMENDED PETITION IN INTERVENTION- PAGE 7
R046
7.5 Midwestern Cattle breached its contractual obligation by failing to provide
the 554 head of cattle after Intervenors made payment; and by failing to return the
funds paid by Intervenors when it became clear the 554 head of cattle were not delivered
to Intervenors to be resold.
7.6 This is a breach of contract and has resulted in damages to Intervenors
more fully set forth below.
8.o Cause of Action for Fraud (Misrepresentation)
8.1 Intervenors incorporate the allegations contained in Section 4 above as if
fully set forth herein. Based on the foregoing allegations, Intervenors assert claims for
fraud by misrepresentation against Tony Lyon. This claim includes a claim of fraud in
the inducement that induced Intervenors to enter into the agreement to purchase the
554 head of cattle.
8.2 Tony E. Lyon d/b/a Lyon Farms ("Lyon"), as Midwestern Cattle's agent,
made representations that were false and material that he knew were false or made
recklessly without knowledge of its truth. The false representations include a
representation that Intervenors would receive the cattle shown to Jeff Cox in March
2015 and invoiced by Midwestern Cattle on March 31, 2015, and that the 554 head of
cattle identified in the March 31, 2015 invoice would be delivered and available to be
resold by Intervenors after the feeding and grazing period.
8.3 Lyon, as Midwestern Cattle's agent, made these representations with the
intent that Intervenors act upon them by sending the check for $798,319.08 for the
purchase of the 554 head of cattle to Midwestern Cattle. Intervenors relied upon those
false representations by writing the check and sending it to Midwestern Cattle
Marketing, LLC for the 554 head of cattle.
FIRST AMENDED PETITION IN INTERVENTION - PAGE 8
R047
8-4 These representations caused injury to Intervenors and were a proximate
cause of damages to Intervenors more fully set forth below.
8.5 Midwestern Cattle is liable for the fraud by misrepresentation and
fraudulent inducement committed by Lyon because at all times relevant Lyon was acting
as Midwestern Cattle's agent or otherwise aided and abetted such conduct as set forth in
Section 14 below. To the extent necessary, Intervenors invoke the doctrine set forth in
Restatement (Second) of Torts §876. Midwestern Cattle is also liable for the fraud by
misrepresentation and fraudulent inducement committed by Lyon under the doctrine of
ratification as set forth in Section 16 below.
8.6 Owen Lyon and Monna Lyon knowingly aided and abetted Lyon's fraud
(including fraudulent inducement). As such, Owen Lyon and Monna Lyon are jointly
and severally liable to Intervenors for the harm resulting from this fraud. To the extent
necessary, Intervenors invoke the doctrine set forth in Restatement (Second) of Torts
§876.
8.7 Intervenors are entitled to recover damages more fully set forth below.
9.0 Cause of Action for Fraud (Non-Disclosure)
9.1 Intervenors assert claims against Midwestern Cattle and Tony E. Lyon
d/b/a Lyon Farm ("Lyon") for fraud by non-disclosure. This claim includes a claim of
fraud in the inducement that induced Intervenors to enter into the agreement to
purchase the 554 head of cattle.
9.2 Midwestern Cattle and Lyon concealed from and failed to disclose certain
material facts to Intervenors that Midwestern Cattle and Lyon had a duty to disclose.
The information concealed includes the fact that Lyon was given access to the
Midwestern Cattle checkbook to write checks on behalf of Midwestern Cattle to himself
FIRST AMENDED PETITION IN INTERVENTION-PAGE 9
R048
or his business interest or his family without any supervision or review by others at
Midwestern Cattle; and the fact that Midwestern Cattle and Defendants were operating
the cattle sales on a "float" that did not involve sales of existing cattle or actual sellers as
represented. In addition, Midwestern Cattle and Lyon never disclosed prior criminal
convictions of Tony Lyon related to his cattle business operations.
9.3 Midwestern Cattle and Lyon knew Intervenors did not know these facts
and did not have an equal opportunity to discover those facts.
9-4 Midwestern Cattle and Lyon remained deliberately silent when they had a
duty to speak. By remaining silent, Midwestern Cattle and Lyon intended to induce
Intervenors to pay for the 554 head of cattle they never received. For example,
Midwestern Cattle had a duty to disclose this information in response to inquiry by Jeff
Cox in December 2014 concerning the business practices of Tony Lyon. Instead,
Midwestern Cattle representatives stated that there was nothing improper about the
business practices of Tony Lyon.
9.5 Intervenors relied on the non-disclosure of these facts by Midwestern
Cattle and Lyon and sustained injury as a result of this non-disclosure.
9.6 Midwestern Cattle is liable for the fraud by non-disclosure and fraudulent
inducement committed by Lyon because at all times relevant Lyon was acting as
Midwestern Cattle's agent or otherwise aided and abetted such conduct as set forth in
Section 14 below. To the extent necessary, Intervenors invoke the doctrine set forth in
Restatement (Second) of Torts §876. Midwestern Cattle is also liable for the fraud by
non-disclosure and fraudulent inducement committed by Lyon under the doctrine of
ratification as set forth in Section 16 below.
FIRST AMENDED PETITION IN INTERVENTION- PAGE 10
R049
9.7 Owen Lyon and Monna Lyon knowingly aided and abetted Lyon's fraud
(including fraudulent inducement). As such, Owen Lyon and Monna Lyon are jointly
and severally liable to Intervenors for the harm resulting from this fraud. To the extent
necessary, Intervenors invoke the doctrine set forth in Restatement (Second) of Torts
§876.
9.8 Intervenors are entitled to recover damages more fully set forth below,.
10.0 Cause of Action for Money Had and Received
10.1 Intervenors assert claims against Midwestern Cattle and Defendants for
money had and received.
10.2 As set forth above, Intervenors paid $798,35i.19, which included a
$5,335.10 commission for 554 head of cattle. These funds were received and deposited
by Midwestern Cattle. The 554 head of cattle was never delivered for resale.
10.3 As a result, Midwestern Cattle and Defendants hold funds that in equity
and good conscience belong to Intervenors, and Intervenors are entitled to recover from
Midwestern Cattle and Defendants for money had and received.
10-4 Intervenors are entitled to damages in the amount of funds had and
received by Midwestern Cattle and Defendants that in equity and good conscience
belong to lntervenors.
11.0 Conversion
11.1 Upon information and belief, the 554 head of cattle (if they ever existed)
were in the possession of the Lyon Defendants. At some point, upon information and
belief, Plaintiff seized approximately 892 head of cattle from the Lyon Defendants.
FIRST AMENDED PETITION IN INTERVENTION - PAGE 11
R050
11.2 The 554 head of cattle (if they ever existed) are the rightful property of
Intervenors by virtue of Intervenors' payment of the invoice received from Midwestern
Cattle on March 31, 2015. The 554 head of cattle were personal property.
11.3 To the extent some or all of the 554 head of cattle Intervenors paid for
were among the 892 head of cattle seized by Plaintiff from the Lyon Defendants,
Intervenors assert an action for conversion against Plaintiff. By seizing the cattle from
the Lyon Defendants and/or selling the cattle after seizure, Plaintiff wrongfully
exercised dominion or control over the cattle.
11.4 To the extent some or none of the 554 head of cattle Intervenors paid for
were not among the 892 bead of cattle seized by Plaintiff from the Lyon Defendants,
Intervenors assert an action for conversion against Tony Lyon d/b/a Lyon Farms. Tony
Lyon d/b/a Lyon Farms wrongfully exercised dominion or control over the cattle by
retaining the cattle and/ or selling the cattle prior to seizure by Plaintiff.
11.5 Plaintiff is liable for any acts of conversion by Tony Lyon d/b/a Lyon
Farms for the reasons set forth in Section 15 below.
11.6 Owen Lyon and Monna Lyon are liable for any acts of conversion by Tony
Lyon d/b/a Lyon Farms for aiding and abetting such conduct.
11. 7 Intervenors suffered injury from the conversion of the 554 head of cattle.
Intervenors are entitled to damages in the form of a return of the cattle, the proceeds
received from the sale of such cattle, or damages as more fully set forth below.
12.0 Damages
12.1 As a result of the acts and omissions set forth above, Intervenors have
sustained actual damages. These damages include direct damages and consequential
damages resulting from wrongful conduct by Midwestern Cattle and Defendants
FIRST AMENDED PETITION IN INTERVENTION - PAGE 12
R051
12.2 The acts and omissions more fully described above by Intervenors,
singularly or in combination thereof, have been a direct, proximate and/or producing
cause of damages to Intervenors in an amount that exceeds the jurisdictional limits of
this Court. The damages sustained by Intervenors are general and specific, as well as
direct and consequential. Intervenors' damages include, but are not limited to, out-of-
pocket losses, benefit of the bargain losses, loss of use damages, lost opportunity
damages, lost profits, and all other losses reasonably flowing fro~ the conduct of
lntervenors.
12.3 Intervenors are entitled to recover reasonable and necessary attorney fees
pursuant to Texas Civil Practice & Remedies Code §38.ooi.
12-4 lntervenors are entitled to pre-judgment and post-judgment interest at the
highest rate allowed by law. Intervenors are also entitled to recover all costs of court.
12.5 Intervenors are also entitled to equitable relief in the form of a
constructive trust and/or an accounting pertaining to the cattle seized by Midwestern
Cattle from Defendants.
13.0 Exemplary Damages
13.1 The acts and omissions of Tony Lyon more fully set forth above evidence a
specific intent to enrich himself by causing substantial harm to Intervenors. As such, the
imposition of exemplary damages in a sufficient amount to be determined by the jury
against Tony Lyon is warranted to make an example of Tony Lyon and to deter others
from engaging in similar conduct.
13.2 Midwestern Cattle is liable for exemplary damages based on the wrongful
conduct of its agent (Tony Lyon). Tony Lyon had a prior history of fraudulent conduct
with respect to cattle sales. Tony Lyon was unfit to serve as the agent for Midwestern
FIRST AMENDED PETITION IN INTERVENTION - PAGE 13
R052
Cattle in the role and with the responsibilities Midwestern Cattle bestowed upon him.
Midwestern Cattle was reckless in employing Tony Lyon in that capacity. Additionally
and alternatively, Midwestern Cattle ratified or approved the acts of Tony Lyon with
respect to the specific sale made to Intervenors. Among other things, Midwestern Cattle
retained the commission charged with respect to that sale.
13.3 Midwestern Cattle is also liable for exemplary damages for the wrongful
conduct of Tony Lyon under Texas Civil Practice & Remedies Code §41.005(c).
13-4 The statutory cap on exemplary damages does not apply in this case
pursuant to Texas Civil Practice & Remedies Code §41.008(c)(9); §41.008(c)(n), or
§41.008(c)(13).
14.0 Midwestern Cattle is liable for the wrongful conduct of Tony Lyon
14.1 Midwestern Cattle is liable for the wrongful conduct of Tony Lyon d/b/a
Lyon Farms ("Lyon") under the doctrine of agency or apparent authority. Midwestern
Cattle admitted and recognized that Lyon was their agent. Midwestern Cattle provided
Tony Lyon with actual or apparent authority to act as its agent by providing Lyon with a
Midwestern Cattle checkbook and signature stamp to conduct Midwestern Cattle
business. Midwestern Cattle affirmatively represented Lyon to be its representative to
Intervenors. He was Midwestern Cattle's order buyer and part of their group in Texas.
Midwestern Cattle clothed Lyon with authority and ability to buy and sell cattle on
Midwestern Cattle's behalf with no oversight.
14.2 Alternatively, Midwestern Cattle is liable for the wrongful conduct of Lyon
under the doctrine of apparent authority because it took affirmative steps to clothe Lyon
with authority to act on its behalf, and Intervenors relied on those acts in dealing ·with
Lyon as an agent of Midwestern Cattle.
FIRST AMENDED PETITION IN INTERVENTION- PAGE 14
R053
14.3 Midwestern Cattle is jointly and severally liable for the damages caused by
Lyon's fraud by misrepresentation (including fraudulent inducement) for aiding and
abetting such conduct set forth in Section 8 above.
14-4 Midwestern Cattle is jointly and severally liable for the damages caused by
Lyon's fraud by non-disclosure (including fraudulent inducement) for aiding and
abetting such conduct set forth in Section 9 above.
15.0 Civil Conspiracy
15.1 Intervenors assert that Tony Lyon d/ b/a Lyon Farms; Owen Lyon; and
Monna Lyon engaged in a civil conspiracy to defraud Intervenors.
15.2 The members of the conspiracy included Tony Lyon d/ b/a Lyon Farms;
Owen Lyon; and Monna Lyon.
15.3 The object of the conspiracy was to induce Intervenors to pay for cattle
that they would never receive.
15-4 The members of the conspiracy had a meeting of the minds on the object
or course of action, and one or more members committed an unlawful overt act to
further the object or course of action as more fully set forth above.
15.5 lntervenors suffered injury and sustained damages based upon this
conduct.
16.0 Ratification
16.1 Midwestern Cattle is also liable for the acts and omissions of Tony Lyon
d/b/a Lyon Farms ("Lyon") under the doctrine of Ratification.
16.2 As set forth above, Lyon was an agent for Midwestern Cattle. Intervenors
entered into a transaction with this agent. Midwestern Cattle approved by word, act or
conduct after acquiring full knowledge of the act that gave validity to their acts including
FIRST AM ENDED PETITION IN [NTERV ENTION - PAGE 15
R054
but not limited to allowing Lyon to solicit funds for the 554 head of cattle and taking a
commission for cattle that were never provided to Intervenors.
16.3 Even after admitting full knowledge of the fraudulent conduct committed
by Tony Lyon, Midwestern Cattle retained the benefits of the transaction involving the
554 head of cattle and, as such, ratified the transaction.
17.0 Demand for Jury
17.1 lntervenors demand their right to a jury trial afforded by the Texas
Constitution and the United States Constitution. Intervenors have previously tendered
the requisite fee to the district clerk.
WHEREFORE, Intervenors requests that Midwestern Cattle and Lyon
Defendants be cited to appear and answer, and that on final trial Intervenors have:
(a) Judgment against Midwestern Cattle Marketing, LLC, Tony E. Lyon d/b/ a
Lyon Farms, Owen Lyon and Monna Lyon for actual and compensatory
damages in an amount in excess of the minimum jurisdictional limits of
the Court more fully set forth above;
(b) Judgment against Midwestern Cattle Marketing, LLC, Tony E. Lyon d/b/a
Lyon Farms, Owen Lyon and Monna Lyon for exemplary damages as set
forth above;
(c) A constructive trust over cattle Plaintiff seized from Lyon Farms in 2015 or
proceeds from the sale of cattle seized from Lyon Farms by Plaintiff;
(d) An accounting for the cattle Plaintiff seized from Lyon Farms in 2015 or
proceeds from the sale of cattle seized from Lyon Farms by Plaintiff;
(e) Reasonable and necessary attorney fees as set forth above;
(f) Pre-judgment interest and post-judgment interest at the highest rates
allowed by law; and
(g) Costs of suit; and
(h) Such other and further relief to which Intervenors may be justly entitled.
FIRST AMENDED PETITION IN INTERVENTION-PAGE 16
R055
Respectfully submitted,
SIMPSON, BOYD, POWERS & WILLIAMSON
Derrick S. Boyd
State Bar No. 00790350
Michael A. Simpson
State Bar No. 18403650
Kristy P. Campbell
State Bar No. 24041684
P.O. Box957
105 N. State Street, Suite B
Decatur, Texas 76234
Telephone No. (940) 627-8308
Facsimile No. (940) 627-8092
ATTORNEYS FOR IN
CERTIFICATE OF SERVICE
By my signature above, I hereby certify that a true and correct copy of Intervenor's First
Amended Petition in Intervention was delivered via fax and/ or certified mail return
receipt requested to all counsel of record on this 26th day of February, 2016.
FIRST AM ENDED PETITION IN INTERVENTION - PAGE 17
R056
CAUSE NO. 15-07-061
MIDWESTERN CATILE § IN THE DISTRICT COURT
MARKETING, LLC §
§
Plaintiff §
§
vs. §
§
TONYE. LYON dfb/a LYON FARMS, §
OWENLYONandMONNALYON §
§ JACK COUNTY, TEXAS
Defendant §
§
and §
§
NORTHWEST CATTLE FEEDERS, §
L.L.C. and RILEY LIVESTOCK, INC. §
§
Intervenors § 271ST JUDICIAL DISTRICT
INTERVENORS' RESPONSE TO PLAINTIFF'S MOTION TO STRIKE
PETITION IN INTERVENTION, AND ALTERNATIVE MOTION TO SEVER
Summary of Response
Plaintiff alleges it was a victim of a "deplorable" scheme regarding the fraudulent
sale of cattle by its agent - Tony Lyon. Intervenors seek damages based on that same
scheme. Intervenors also seek to recover damages from identifiable cattle that Plaintiff
seized from Lyon in 2015. As such, Intervenors share an equitable interest in the
accounting for the proceeds of the sale of the seized cattle by Plaintiff.
In summary, Intervenors have a justiciable interest in this lawsuit. The issues are
not multiplied or unnecessarily complicated by intervention because the same witnesses
and the same issues will be addressed by the Court and the Jury as to the claims
asserted by Plaintiff and Intervenors. Judicial economy supports intervention "in order
to avoid a multiplicity of lengthy lawsuits" concerning the same issues. Guaranty
Federal Savings Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990).
INTERVENORS RESPONSE TO MOTION TO STRIKE - PAGE 1
R057
The intervention is essential to Intervenors' interest in recovering damages for the cattle
that were not delivered and converted by Plaintiff and Defendants. For these reasons,
Intervenors respectfully request that Plaintiffs Motion to Strike be denied.
Factual Background
Plaintiff buys cattle from a seller and then sells the cattle to a buyer. Intervenors
operate a feed lot and otherwise trade in cattle. Prior to 2015, Intervenors were
introduced by Plaintiff to Tony Lyon d/b/a Lyon Farms (hereinafter "Lyon"). Lyon was
represented to Intervenors to be a cattle order buyer for Plaintiff operating in Texas.
From that introduction, a business relationship developed between Intervenors and
Plaintiff (through its agent Tony Lyon) for the purchase and sale of cattle.
In March 2015, after multiple apparently successful transactions, Intervenors
entered into an agreement with Plaintiff through Lyon to purchase 554 head of cattle.
Before entering into this agreement, Jeff Cox (on behalf of Intervenors) met with Lyon
in Jack County to discuss the purchase. Lyon represented that cattle in a pasture he
showed Cox were the 554 head of cattle Intervenors were purchasing.
After Intervenors agreed to purchase the cattle in question, Plaintiff sent an
invoice to Intervenors dated March 31, 2015.1 The recipient of the invoice was Northwest
Cattle Feeders. The amount of the invoice was $798,35i.19. The invoice was specifically
for 554 head of cattle with the description "Steers sold from Perrin, TX." This invoice
relates to the specific cattle Cox discussed with Lyon in Jack County.
Upon receipt of the invoice, Riley Livestock wrote a check dated March 31, 2015
in the amount of $798,319.08. 2 This check was made payable to Plaintiff. The cattle
1
See Exhibit A
2 See Exhibit B
INTERVENORS RESPONSE TO MOTION TO STRIKE - PAGE 2
R058
were to be delivered to Francis Farms for feeding and delivery for sale 60-90 days later.
However, when it came time to sell the 554 head of cattle, Plaintiff failed to deliver the
554 head of cattle to Intervenors.
In June 2015, shortly before time for the cattle to be sold, Plaintiff informed Jeff
Cox that there was "a problem" with Lyon. After receiving that call, Jeff Cox travelled to
Texas to speak with Lyon. When he arrived, Cox learned that other representatives of
Plaintiff (Jason O'Connell and Tim Correll) had been present on the Lyon property.
Plaintiff seized approximately 892 head of cattle from Lyon Farms, and represented to
Cox that the seized cattle would be used to try to "make whole" both Cox and Plaintiff.
Later in 2015, 41 head of cattle were delivered to Intervenors' business location in
Nebraska. These were represented to be from the seized cattle. Intervenors liquidated
the 41 head and had checks for the proceeds made out jointly to Midwestern Cattle and
Northwest Cattle Feeders.3 Plaintiff has not disclosed what happened with the
remaining seized cattle despite requests by Intervenors for this information. Upon
information and belief, Plaintiff has liquidated some or all of the seized cattle and
retained the proceeds from those sales for its use to the exclusion of Intervenors.
Procedural Background
Without providing any notice to Intervenors, Plaintiff filed the present lawsuit in
July 2015. The Lyon scheme is also under current investigation by state and federal
agencies. Intervenors learned of this lawsuit through hearing about the state and federal
criminal investigations.
As victims of the scheme, Intervenors filed their Petition in Intervention on
November 24, 2015. Intervenors assert claims against both Plaintiff and Defendants.
3 See Exhibit C
INTERVENORS RESPONSE TO MOTION TO STRIKE - PAGE 3
R059
Plaintiff filed a Motion to Strike on December 18, 2015. Defendants filed a response in
opposition to Plaintiffs Motion to Strike on February 4, 2016.
Since November, Intervenors have participated in discovery and depositions
taken in this case. The case is set for Second Scheduling Conference on May 16, 2016.
Argument & Authorities
TRCP 60 provides that a "party may intervene, subject to being stricken out by
the court for sufficient cause on the motion of any party." The party opposing
intervention "has the burden to challenge it by a motion to strike." Guaranty Federal
Savings Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). Here, only
Plaintiff seeks to strike the intervention. Defendants do not oppose intervention. In
response to such a motion, an intervenor is entitled to present the basis for intervening
at a hearing. Prototype Machine Co. v. Boulware, 292 S.W.3d 169, 172 (Tex.App.-San
Antonio 2009, no pet.).
Under TRCP 60, "a person or entity has the right to intervene if the intervenor
could have brought the same action, or any part thereof, in his own name, or, if the
action had been brought against him, he would be able to defeat recovery, or some part
thereof." Guaranty Federal Savings Bank, 793 S.W.2d at 657 (emphasis added). "The
interest asse1ted by the intervenor may be legal or equitable." Id. The trial court "should
determine the party's justiciable interest on the basis of the sufficiency of the petition in
intervention." Caprock Investments Corp. v. F.D.l.C., 17 S.W.3d 707, 711 (Tex.App.-
Eastland 2000, pet. denied); Potash Corp. v. Mancias, 942 S.W.2d 61, 64 (Tex.App.-
Corpus Christi 1997, orig. proc.).
The trial comt has "broad discretion" to determine \·v hether intervention is
proper. Guaranty Federal Savings Bank, 793 S.W.2d at 657 (emphasis added).
lNTERVENORS RESPONSE TO MOTION TO STRIKE - PAGE 4
R060
However, "it is an abuse of discretion to strike a plea in intervention if (1) the intervenor
meets the above test, (2) the intervention will not complicate the case by an excessive
multiplication of the issues, and (3) the intervention is almost essential to effectively
protect the intervenor's interest." Id. See also In re: Lumbermen's Mutual Cas. Co., 184
S.W.3d 718 (Tex. 2006)(finding that trial court abused discretion in denying
intervention by insurer to appeal underlying judgment).
In Guaranty Federal Savings Bank, the trial court struck the petition in
intervention filed by a bank customer (Petrolife) concerning whether a teller check
should or should not be paid by a bank. The Supreme Court found that "[j]udicial
economy requires that Petrolife intervene and participate in the trial in order to avoid a
multiplicity of lengthy lawsuits." Guaranty Federal Savings Bank, 793 S.W.2d at 658.
For this reason, the Supreme Court found that striking the petition in intervention was
an abuse of discretion. Id.
That is the same issue in the present case. Plaintiff seeks damages related to a
"deplorable" scheme of Defendants to commit cattle fraud. lntervenors are victims of
that same scheme. In fact, Intervenors bought the cattle from Plaintiff based on a sale
produced by Plaintiffs agent, Tony Lyon (who is also one of the Defendants).
Intervenors paid the money for the cattle to Plaintiff, who in turn issued a check to
Owen Lyon (who is also one of the Defendants).4
The witnesses and issues are the same. The same issues to be decided by the jury
as to Plaintiff's claims will be decided by the jury as to Intervenors' claims.s The
4 See Exhibit D (Exhibit 6 to Jeff Cox deposition)
s The issue of whether Lyon was Plaintiffs agent is also raised in both cases. Plaintiff seeks to recover for
breach of fiduciary duty based on its "business relationship" with Lyon. That relationship can only be one
of agency. Similarly, Intervenors seek to hold Plaintiff liable for Lyon's conduct under agency principles.
INTERVENORS RESPONSE TO MOTION TO STRIKE - PAGE 5
R061
procedural posture of the case is no different than if Intervenors had origina11y filed suit
against Plaintiff and Defendants, and Plaintiff then asserted a cross-claim against
Defendants. As such, there is no "excessive multiplication of the issues" raised by
intervention in this case.
For the same reasons, Intervenors have a justiciable interest in the present case.
Intervenors could have brought the same action as the sole plaintiff against Plaintiff and
Defendants. In part, Plaintiff seeks damages from Lyon for cattle fraud. Intervenor seeks
the same relief based on the same conduct. As such, Intervenors "could have brought the
same action, or any part thereof, in [their] own name." Guaranty Federal Savings
Bank, 793 S.W.2d at 657. See Acton Corp. v. Sabinske, 1995 WL 479671 (Tex.App.-
Dallas 1995, pet. denied).6
In Acton Corp., the Dallas Court of Appeals reversed a jury's verdict based on
fraud, and remanded the case for a new trial with instructions to reinstate the
intervention by NDC that the trial court had denied. Id. at * i. The Dallas Court of
Appeals explained its reasoning as fo11ows:
It is undisputed that NDC was entitled, in its own right, to assert the
causes of action contained in its plea in intervention. NDC's request for
declaratory relief appears to be simple. Certainly, nothing in the record
shows it would have appreciably affected the issues to be tried or the
length of the trial. NDC's intervention would not have affected the
complexity of the case. The interests of the Sabinskes, Acton, and NDC
were interwoven. Disposition of the case could reasonably impair or
impede NDC's ability to protect any interest it might have in the subject
Severing the claims creates the risk of inconsistent findings based on Plaintiff wanting to take the position
on its claims that Lyon was its agent, but with respect to Intervenors' claims seeking to deny any agency
relationship.
6
See also Law Offices of Windle Turley u. Ghiasinejad, 109 S.W.3d 68, 71 (Tex.App.-Fort Worth 2003,
no pet.)(finding that discharged law firm had justiciable interest in former client's personal injury lawsuit
based on contingent fee agreement); Consumers County Mut. Ins. Co. u. Mendoza, 2007 WL 687157
(TexApp.- Corpus Christi 2007, no pet.)(finding that insurer had justiciable interest to intervene in
proceedings to protect assets subject to turnover order).
INTERVENORS RESPONSE TO MOTION TO STRIKE- P AGE 6
R062
litigation. Thus, NDC's participation was almost essential to NDC's
protecting its interests. 7
The same rationale applies here. Like NOC, there is no doubt Intervenors are "entitled,
in its own right, to assert the causes of action contained in its plea in intervention."
Acton Corp. at *g. Similarly, as it relates to the Defendants, the interests of Intervenors
and Plaintiff are "interwoven" and the claims asserted by each against Defendants are
similar and arise from the same "deplorable" cattle fraud scheme. Id. Likewise, as set
forth below, [d]isposition of the case could reasonable impair or impede [Intervenors']
ability to protect any interest it might have in the subject litigation." Id.
Lastly, intervention is necessary to protect Intervenors' interest. Approximately
892 head of cattle were seized by Plaintiff from Defendants upon revelations of the
fraudulent conduct. Some or all of the 554 head may or may not have been part of the
seized cattle. Plaintiff caused delivery of 41 cows to Intervenors' Nebraska location for
care and maintenance following seizure.
Intervenors have received proceeds from the sale of such cattle. Intervenors had
checks for the proceeds made payable to Plaintiff and Intervenors based on a
conversation between Jeff Cox (representative for Intervenors) and Jason O'Connell
(representative for Plaintiff) that the cattle would be used to "make whole" both Plaintiff
and Intervenors. However, after Plaintiffs representatives were interviewed by FBI
agents concerning this scheme, Plaintiff ceased communications with Intervenors, and
have provided no information concerning the whereabouts or sale of the seized cattle.
Instead, Plaintiff apparently retained the proceeds from these sales, and now
(after making exclusive use of those proceeds) seeks to pursue a judgment against
7 Acton Corp., 1995 WL 479671 at *9
lNTERVENORS RESPONSE TO MOTION TO STRIKE- PAGE 7
R063
Defendants. Intervention is "almost essential to effectively protect the intervenor's
interest" in recovering the cattle or sale proceeds for the cattle Intervenors paid for in
March 2015. Guaranty Federal Savings Bank, 793 S.W.2d at 658. Cf Duke v. Wilson,
900 S.W.2d 881, 885 (Tex.App.-El Paso 1995, pet. denied)(permitting workers'
compensation insurer to intervene in employee's third-party liability lawsuit "as it
prevents the payment of the judgment in full to [employee] prior to [insurer's]
recoupment of its subrogation interest); State Farm Mut. Auto Ins. Co. v. Perkins, 216
S.W.3d 396, 403 (Tex.App.-Eastland 2006, no pet.)(citing Duke and finding abuse of
discretion in striking intervention); Texas Supply Center, Inc. v. Daon Corp. , 641
S.W.2d 335, 337 (Tex.App.-Dallas 1982)(finding abuse of discretion in striking
intervention '"'here intervenor had claim to funds at issue). The issue of whether the
interest need protecting is judged by the circumstances that exist at the time of the
hearing. In re: R.L.A., 2009 WL 885881 (Tex.App.-Fort Wo1th 2009, orig. proc.).
Plaintiffs reliance on In re: Union Carbide Corp., 273 S.W.3d 152 (Tex. 2008) is
misplaced. In that case, the intervenors made "no claim that their controversy will be
affected or resolved by resolution of the Moffett case." Id. at 155. Moreover, that case
involved two separate and distinct personal injury cases that involved different diseases
that occurred from exposure to different chemicals over differing time period. Id. at 154.
Here, Intervenors seek damages arising from the exact same "deplorable" scheme
that Plaintiff alleges against Defendants. That scheme occurred during the same time
period and involved the same parties. Both even include the fictitious George's Cattle
Company as the invented party to the sale. Further, any judgment obtained by Plaintiff
against Defendants will ce1tainly affect resolution of Intervenors' claims - especially
INTERVENORS RESPONSE TO MOTION TO STRIKE- PAGE 8
R064
given the actions of Plaintiff in seizing pre-trial approximately 892 head of cattle from
Defendants and liquidating those cattle to the exclusion of Intervenors.
For the same reasons, Plaintiff is not entitled to severance. A severance is only
appropriate when the "severed claim is not so intenvoven v.~tb the remaining action that
they involve the same facts and issues." Guaranty Federal Savings Bank, 793 S.W.2d at
658. "Severance of claims under the Texas Rules of Civil Procedure rests within the
sound discretion of the trial court." In re: Liu, 290 S.W.3d 515, 520 (Tex.App.-
Texarkana 2009, orig. proc.). As set forth above, Intervenors' clajms arise from the same
scheme, involve the same pa1ties, and substantially the same claims. Clearly, the claims
of Intervenors and Plaintiff involve the "same facts and issues" so as to make severance
improper.
Conclusion
For the foregoing reasons, Intervenors respectfully request that Plaintiffs Motion
to Strike and Alternative Motion to Sever be DENIED.
Respectfully submitted,
SIMPSON, BOYD, POWERS & WILLIAMSON
Derrick S. Boyd
State Bar No. 00790350
Kristy P. Campbell
State Bar No. 24041684
P.O. Box 957
105 N. State Street, Suite B
Decatur, Texas 76234
Telephone No. (940) 627-8308
imile No. (940 -8092
lNTERVENORS RESPONSE TO MOTION TO STRIKE - PAGE 9
R065
CERTIFICATE OF SERVICE
By my signature above, I hereby certify that a true and correct copy of Intervenor's
Petition in Intervention was delivered via fax and/or certified mail return receipt
requested to all counsel of record on this 26th day of February, 2016.
INTERVENORS RESPONSE TO MOTION TO STRJKE- PAGE 10
R066
Exhibit A
R067
VAP-31-28 : 5 13: 37 ~ rcn : ;:· l ;i,::; P.C· 2
Midwestern Cattle Marketing, LLC
P.O 6o~ 710
S 1dn~y. Ne 69162 ''
Pho11c 306 H9 0079 \
Fa x 30B 2~11 i3 l \ \ Jll.VOICc ~ DEALER-FEEDE R C/ITTLC
OAH :l/3 1/2015
" .. \
10:
Northwi>~: Ca"le Feerlers
675 Rd West F Sout~
Oruie, Ne 69 127
PAYMENT IS DUE WITHIN 24 HOURS OF RECEIPT OF THIS INVOICE
.--
O-M'
-1~0
- N
~ #-
1-:W
~lR
-£7""
fU-N 07
,...,... S``----· ·
OPTION •2: FEOEX FUNDS (OVERNIGHT)
Poinh West Community Bank Points West Community Bank
809 f dlnols St 809 ll hno1~ St
PO Box 157 PO Bo:r. 157
Sidney, Nf 69162 Sidney, NE 69162
M1dwc:stern Qltle Marketing, UC Midwestern <:ante Marketing, UC
Custodial Account - Dealer Cu!>tcdlal Account - Dealer
ABA at all liv e~tock rt>fercncceations specific :.o the
tran~a ct1011 d rtd trunsterrco ~·c of us oro91n (born&. ra1se<1) M1dwe. '' "check~ oavallle co Midwestern Cattle Marketing, LLC
Thank you for your business!
R068
Exhibit B
R069
Page 1 of I
The Front Image:::
2264
ue.oeA!'IX N».
RILEY LIVESTOCK , INC, : AAJ1CVOOn.-.:<>!!.O. tlflfJ..C~
~UITI\,t..,.\.'"'i
V":LM).11"
Y.\'tt~D '-Y "10'<-4'·-t
~ . • OATE
•• Sl¥-'1 irJhO!U'' n .. ulCTY C1:"1HT''nl()IJ"';.M`` tf.:..~Ml> h:."1~ ~ AJQ ca a:HTS ...
--- ,: ·-·
The Back Image:
r I
l````i·
:
..
..
. : : ·. .
.
5``)t``~r.a~H~r.~ 1 .1 mfiEi:.rii15
< ~a``~.. ~1 1_~1 c:l~"!~!u``·~ 3:J':i"l
I .. ~ . . : '·'
- ~'
1
· .· . . ./ ?~-~J
·.r
" . I
.. ._J
https://www .rabo bank.weh-cashpl us.com/pub/product_ bra11ds//Rabo bank/h tm I/pt/Intl mg/br/... 7 /9/20 I 5
R070
Exhibit C
R071
.;)CI I LCtVI CI~ I
DWAYNE MAYS
Owner/Manager
Res. 308·284·2069
0
CARL.A DE KAY
Otflce Manager
SCOTT VAN WINKLE 308·284·2071
Owner/Manager
Res. 308-874·2813 LIVESTOCK AUCTION
MARKET, INC.
DATE P.O. Box 30
Feb 4, 2016 Ogellala, Nebreska 69153 SELL-NO: 279 027517
308·284·2071
SOLO FOR
JEFF cox 221 S JEFFERSON AVE NORTH PLATTE, NE 6910
H~ad · be~·ct.ip·t~c?µ:'·· ..
· 1
·13µy,~li !,1.(Y.{f? Wf:·1:;'\i~.....· , ..~ :,. •'!fe. ,,,· ~,· ",,,,~·" f' • ··"•·*~t t'• · · +:..(">f':.···~ ~;..;:;/;
• · ;: ·i :·.
:i,.~···: ~!:1,.~ -`` ~··. ·•. • .::,·.~•.'., ``.;:;!~/: :.~;:';~.: :~.. ,,::-j,,.. > --~:,::· ~;, :1~:s,~:<:...::\ . . ~14:• ~->~i!. ·t(i;i~. .~ ige~
1- • • ., . ·, .',: ;. 1 •r .., ....: · • 1:"_,.,.-.
.: :· ' ':~-~;:--:.·<~7· ·: : ~·-
1 BLK cow SL 8-3 1265 72. soc 917 .13
1 BLK · HFRT FE 195-51 1515 76.00C 1,151.40
1 BLK cow SL 8 1190 8:3.SOC 993.65
1 BLK cow SL 8-3 1450 75.00C 1, 087 . 50
1 BLK HFRT FE 46-9 1320 8b.ooc 1,056.00
1 BLK HFRT FE 225 810 9i. ooc 737.10
1 BLK HFRT FE 195-51 1760 7.7 . ooc 1,355 . 20
1 BLK HFRT FE 46-3 1085 75 . ooc 813.75
1 BLK HFRT SL 195 1065 7'8 . 00C 841. 35
2 BLK cow BR 32-5 1320 2640 1,30,0 . 00H 2,600.00
5 - 6 YR OLD FALL CLVR
Averages: Head Avg-wt Avg- $- cwt Avg-$-hd
Bred Cow 2 1320 98.48 1,300.00
Cows 3 1302 76.78 999.43
Hfrettes 6 1259 78.82 992.47
11 14100 $11,553.08
BEEF COUNCIL 11.00 HEALTH 4.18
INSURANCE 16.17 BRAND INSP. 11.00
PREG MO TATT 14.00 PREG TEST · 33.75
HAY 132.00
49 .0
TOTAL DEDUCTIONS
PLEASE KEEP THIS RECEIPT FOR YOUR RECORDS!!!! ! ! 11,0 0.
NET PROCEEDS
PLEASE DETACH THIS PORTION BEFORE DEPOSITING CHECK
~
1041
ADAMS BANK & TIIUST CO.
OliAUALA, NEBRASKA
DATE CHECK NO. AMOUtlT
PAY TO THE ORDER OF Feb 4, 2016 027517 $****11,060 . 02
******************Eleven Thousand Sixty and 02/100 Dollars
OGALLALA LIVESTOCK AUCTION MARKET, INC.
CUSTODIAL ACCOUNT FOR SHIPPERS' PROCEEDS
VOID AFTER 180 DAYS
NORTHWEST CATTLE FEEDERS
& MIDWESTERN CATTLE MKTG
675 ROAD WEST F SOUTH
BRULE, NE 69127 SIGNATURE
NCF000020
R072
~t:l ILtMt:NI
DWAYNE MAYS
Owner/Manager
Res. 308-284-2069 CARLA DE KAY
Office Manager
scon VAN WINKLE 308-284-2071
Owner/Manager
Res. 308-874-2813 LIVESTOCK AUCTION
MARKET, INC.
DATE P.O. Box 30
Feb 4, 2016 Ogallala, Ncbro$kll 69153 SELL- NO: 276 027516
308·284-2071
SOLD FOR
JEFF COX 221 S JEFFERSON AVE NORTH PLATTE, NE 6910
32 BLK C&C BR 205-8 779 24920 2,375 . 00H
3-6 YR OLD RUNNING BACK WITH ANGUS BU
LL
6 BBWF C&C BR 130-1 588 3530 1,675 .00 H 5,025 .00
3 - 6 YR OLD RUNNING BACK WITH BULL
6 BLK C&C BR 205-8 973 5835 l,825.00H 5,475.00
5- SOLID MOUTH RUNNING BACK WITH BULL
2 BLK C&C BR 13 0-9 715 1430 1,100.00H 1,100 .00
5-6 YR OLD RUNNING WITH BULL CALF HAS
CROOKED NECK
2 BLK C&C BR 202 660 1320 1,325 . 00H 1,325.00
SOLID MOUTH RUNNING BACK WITH BULL
2 BLK C&C BR 202 613 1225 1,075.00H 1 ,0 75 . 00
3-4 YR OLD RUNNING WITH BULL CALF IS
AS IS
Averages: Head Avg-wt Avg - $-cwt Avg-$-hd
Cow-cf pr. 25 1530 135.91 2,080.00
so 38260 $52,000.00
BEEF COUNCIL 50.00 HEALTH 19.00
INSURANCE 72.82 BRAND INSP. 50.00
MO TATTOO 125.00 HAY 300 . 00
TOTAL DEDUCTIONS
PLEASE KEEP THIS RECEIPT FOR YOUR RECORDS!!!!!!
NET PROCEEDS
P``SE DETACH THIS PORTION BEFORE DEPOSITING CHECK
~
0
1041
ADAMS BANK & TRUST CO.
OGALLALA. NEBRASKA
Livestock Auction Market, Inc.
Custodlel Account For
Shippers' Proceeds DATE CHECK NO. AMOUNT
PAY TO THE ORDER OF Feb 4, 2016 027516 $****50,208 . 18
*******Fifty Thousand Two Hundred Eight and 18/100 Dollars
OGALLALA LIVESTOCK AUCTION MARKET, INC.
CUSTODIAL ACCOUNT FOR SHIPPERS' PROCEEDS
NORTHWEST CATTLE FEEDERS VOID AFTER 180 DAYS
& MIDWESTERN CATTLE MKTG
675 ROAD WEST F SOUTH
BRULE, NE 69127 SIGNATURE
NCF000021
R073
Exhibit D
R074
~+~
Midwestern Cattle Marketing, LLC
P.O. Box 710
JrNVOICIE
Sidney, NE 69162
Phone 308.249.0079
Fax 308.254.4731 INVOICE #DEALER·FEEDER CATILE
DATE: 3/31/2015
TO:
Northwest Cattle Feeders
675 Rd West F South
Brute, Ne 69127
PAYMENT IS DUE wrrHIN 24 HOURS OF RECEIPT OF THIS INVOICE
omoN #1: WIRE RJNDS omoN #2: FEDEX FUNDS (OVERNIGHT)
Points West Community Bank Points West Community Bank
609 nttnols St 809 Illlnols St
PO Box 157 PO Box 157
Sidney, NE 69162 Sidney, NE 69162
Midwestern cattle Marketing, LLC Midwestern cattle Marketing, LLC
Custodial Account - Dealer Custodial Acmunt - Dealer
ABA #104101627 ASA #104101627
Account #10111276 Account #10111276
ITEM DESCRIPTION HEAD GROSS NET WEIGHT PRICE/CWT AMOUNT
COUNT WEIGHT
Steers Sold from Perrin, TX 554 362,870 355,613 $224.50/cwt $798,351.19
head 642# Ave.
. ){1
11vr~
TOTAL 1$798,351.19
As an affidavit ts deemed by USDA as an official record of Country of Origin, I attest through first·hand knowledge, normal
business records, or producer affldavlt(s) that all livestock referenced by this document or other communications specific to the
transaction and transferred are of US origin (born & raised). Midwestem CiUtle Marketing, LLC
Make all checks payable to Midwestern cattle Marketing, LLC
Thank you for your business!
R075
Mar311501 :56p
p.1
117 q37()/ b 09
1 toe. ro teet-
4711qoe1D9
I
/.__ ytJ JJ Fft,.rt .5/ tJ fd o.J /.._yo AJ
ex_# /ODO 76-3
Jtz B7oI
J ~s, "/J t 't.7-;i_
"Z:Z'/.S!
f 7re 3!>-; · "Y
I
-
/·~ r . - 5Jss-: ~
J;rr&)t - 1779. ~
~" ....... - 3-">3 "!
7"7W'-- - s S'f' · "±_
- -
R076
Imuging - \ "ic\\ Trans:i<:tion PJgc 1 of 1
f\> .iWn:~-:y0,.4: 11903290<
Legend Sa-"llc llO•a
2015-03-30
0041796836
~ll!'b: ' ~·com. fnp;111cs .co111'1\ IG _I\ I<; 1151 l \ l(i 11 51 ...Jsh.\. .'. \ctimi=\ · i~" ·1r:in~::iction& ·1nJ..... 8' J -~ ~O l 5
R077
Imaging - View Transaction Page 1of1
CURRENCY
COIN
...
!%i
. . J..~1'
~
:-:·
l;
~ h
i i~ I
..
11~5 `` ,·Z .``r.·
~4 ~B1
1
~'
~s
~.
~}!.
~
~J ~i!
~
ft-' l .
ti.. ~(
"~
UJ~
5
t:i ' W • llU ,., , '
·:.;
I
i
~
..i
I
J .
. ~:
~
-·
.··."·'~ii
·.: ~
: ~t
1
https://ecom.fnbancs.com/IMG_IMGI 151/IMGI 151.ashx?Action=ViewTransaction&Tok... 8/13/2015 -~
R078
Page 1 of I
Close windOw
Get Rates & Transit nmes
Details
Amounts are shown in USO
Services FodEx Priority FedEx Standard FedEx 2Day AM" FedEx 20ayc> FedEx Expreae Save,.
delivery with Overnight- Overnight-
date/time 12:00 Fri Apr 03, 2015 18:30 Fri Apr 03, 2015 18:30 Mon Apr 08,
12:00 ThuApr02. 2015 16:30 Thu Apr 02. 2015 2015
Base Rate 32.55 31 35 19.31 17.55 14.10
Addltlonal charges
(+)
•Fuel surcharge 0.47 0.46 0.30 0.27 0.23
•DAS Comm 2.35 2.35 2.35 2.35 2.35
Olacounta (-)
·Bonua discount 3.28 3.14 1.93 t.76 1.41
Total 32.tt 31.02 20.03 18.41 15.27
More information about your resuHs:
• Riies shown here may be dillerent man the actual chargaa tor your shipment. Dllferences may occur based on actual weight dimensions, and
other ladors. Consult the applicable FedEx Service Guide for details.
• For more accurale rate and transit time quotas. view this Courteay Rate Quote alter aelecUng any addlUonal shipment opUons.
-
https ://www. fed ex .com/shippi ng/j sp/RatingDetai l.jsp?locale=en_US 4/1 /201 s
R079
CAUSE NO. 15-07-061
MIDWESTERN CA'ITLE § IN THE DISTRICT COURT
MARKETING, LLC §
§
Plaintiff §
§
vs. §
§
TONYE. LYON d/b/a LYON FARMS, §
OWEN LYON and MONNA LYON §
§ JACK COUN'IY, TEXAS
Defendant §
§
and §
§
NORTHWEST CAITLE FEEDERS, §
L.L.C. and RILEY LIVESTOCK, INC. §
§
Intervenors § 271ST JUDICIAL DISTRICT
ORDER DENYING PLAINTIFF'S MOTION TO STRIKE PETITION IN
INTERVENTION, AND ALTERNATIVE MOTION TO SEVER
The Court heard Plaintiffs Motion to Strike Petition in Inten·ention, and
Alternative Motion to Sever on March 4, 2016. After the hearing, the Court took the
matter under further consideration. After review of the Motion, the Response, the
evidence offered at the hearing, and the arguments of counsel, the Court concludes that
the Motion should be denied.
Therefore, it is ordered that Plaintiffs Motion to Strike Petition in Intervention,
and Alternative Motion to Sever is hereby DENIED.
ta :l/{F~_ED P.M.
MAR 2· 1 2016
TRACIE PIPPIN DIST. CLERK
)d JACK COUN1Y TEXAS
1
BY. DEPUTY
v~
R080
1
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME{S)
2 TRIAL COURT CAUSE NO. 15-07-061
3 MIDWESTERN CATTLE MARKETING, § IN THE DISTRICT COURT
LLC, §
4 §
Plaintiff §
5 vs. §
§
6 TONY E. LYON d/b/a LYON FARMS, §
OWEN LYON and MONNA LYON, §
7 § OF JACK COUNTY, TEXAS
Defendants §
8 §
AND §
9 §
NORTHWEST CATTLE FEEDERS, LLC, §
10 and RILEY LIVESTOCK, INC., §
§
11 Intervenors § 271ST JUDICIAL DISTRICT
12 ************************************************************
13 MOTION TO STRIKE INTERVENTION/SEVER
14 ************************************************************
15
16
17
18
19
20 On the 4th day of March, 2016, the following
21 proceedings came on to be held in the above-titled and numbered
22 cause before the Honorable John Fostel, Judge Presiding, held
23 in Jacksboro, Jack County, Texas.
24 Proceedings reported by machine shorthand
25 utilizing computer-aided translation.
Denise Hill, CSR, RPR - Official - (940) 627-3200
271 st Judicial District Court - Wise-Jack Counties
R081
2
1 A P P E A R A N C E S
2 MR. CHRISTOPHER B. TROWBRIDGE
SBOT NO. 24008182
3 BELL, NUNNALLY & MARTIN, LLP
3232 MCKINNEY AVENUE
4 SUITE 1400
DALLAS, TEXAS 75204-7422
5 TELEPHONE: 214.740.1400
6 - AND -
7 MR. TODD PARKS
SBOT NO. 15526520
8 WALTERS, BALIDO & CRAIN
400 EAST MAIN STREET
9 DECATUR, TEXAS 76234
TELEPHONE: 940.626.8254
10 ATTORNEYS FOR PLAINTIFF
11 MR. DERRICK S. BOYD
SBOT NO. 00790350
12 SIMPSON, BOYD & POWERS
P.O. BOX 957
13 DECATUR, TEXAS 76234
TELEPHONE: 940.627.8308
14 ATTORNEY FOR INTERVENORS
15
16
17
18
19
20
21
22
23
24
25
Denise Hill, CSR, RPR - Official - (940) 627-3200
271 st Judicial District Court - Wise-Jack Counties
R082
3
1 CHRONOLOGICAL INDEX
2 March 4, 2016 Page
3 Case Called. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4 Plaintiff's Motion to Strike Intervention/Sever.......... 4
5 Intervenor's Response... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6 Plaintiff's Rebuttal..................................... 10
7 End of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8 Reporter's Certificate................................... 12
9 WITNESS INDEX
10 NONE
11 EXHIBIT INDEX
12 INTERVENOR'S
13 NO. DESCRIPTION OFFERED ADMITTED
14 A MCM Invoice 11 11
15 B Riley Livestock, Inc., Check 11 11
16 c Receipt of Sale 11 11
17 D MCM Invoice 11 11
18
19
20
21
22
23
24
25
Denise Hill, CSR, RPR - Official - (940) 627-3200
271 st Judicial District Court - Wise-Jack Counties
R083
4
1 PROCEEDINGS
2 March 4, 2016
3 (Open court, attorneys present)
4 THE COURT: 15-07-061. If y'all would give
5 announcements for the record, please. You may proceed,
6 Counsel.
7 MR. TROWBRIDGE: Chris Trowbridge and Todd Parks
8 here for Midwestern Cattle, Plaintiff.
9 MR. BOYD: Your Honor, Derrick Boyd for the
10 Intervenor.
11 THE COURT: You may proceed.
12 MR. TROWBRIDGE: Thank you, your Honor.
13 This is Plaintiff Midwestern Cattle's motion to
14 strike the intervention of two intervenors. As you may recall,
15 Midwestern Cattle filed this lawsuit in July of 2015 against
16 Tony Lyon and his parents. Our petition is in connection with
17 a bounced check for $5 million that was written in June of 2015
18 and then four checks that were written by the Lyon family
19 without our authorization on Midwestern Cattle's checkbook.
20 Those checks totaled 3.7 million. So there's two transactions,
21 June 25th and June 26th.
22 Four months after we filed our suit the
23 Intervenors filed a petition for intervention. Now, their
24 damages stem from a cattle transaction that took place back in
25 March and April of 2013, and they're seeking to recovery
Denise Hill, CSR, RPR - Official - (940) 627-3200
271 st Judicial District Court - Wise-Jack Counties
R084
5
1 $800,000 from my client and from the Defendants we sued.
2 They're also seeking a constructive trust on funds stemming
3 from cattle that my client seized later in the year in July.
4 Intervenor's suit involves different relief.
5 They're seeking different damages and different claims. Under
6 those facts, intervention is not proper. It will cause my
7 trial, the Midwestern Cattle, to be longer. It will be less
8 efficient for this court. For those reasons, it should be
9 stricken by the Court.
10 The case that I handed you, the Texas Supreme
11 Court case Union Carbide, outlines three grounds for a proper
12 intervention, and that's on the demonstrative I handed you.
13 First, Intervenors have to show a justiciable interest in the
14 relief sought by the Plaintiff. Texas Supreme Court says that
15 -- that condition is paramount. Next, the intervention must
16 avoid a multiplication of issues. And third, the intervention
17 must be essential to protect Intervenor's claims. None of
18 those requirements exist here.
19 First, with respect to justiciability, the
20 Supreme Court says the justiciable interest requirement
21 protects pending cases from having interlopers disrupt the
22 proceedings. That's exactly what's happening here before you,
23 your Honor. Intervenors are interlopers. They don't seek any
24 of the relief that Plaintiffs are seeking. They were not
25 involved in the $5 million bounced check. They were not
Denise Hill, CSR, RPR - Official - (940) 627-3200
271 st Judicial District Court - Wise-Jack Counties
R085
6
1 involved in the $3.7 million checks. They're seeking new and
2 different relief, that $800,000 for 554 head of cattle and the
3 constructive trust. Those are new and different transactions
4 from what Midwestern Cattle is suing on.
5 Now, the standard and the test that you have to
6 conduct pursuant to the Texas Supreme Court says to constitute
7 a justiciable interest the intervenor's interest must be such
8 that if the original action had never been commenced and he had
9 first brought it as a sole plaintiff, he would have been
10 entitled to recover in his own name at least a part of the
11 relief sought in the original suit.
12 They have no right to our -- the relief we're
13 seeking on the $5 million check, and they have no right to the
14 $3.7 million in unauthorized checks. What they're trying to do
15 is simply piggy back on MCM's suit, Midwestern Cattle's suit.
16 But their forced participation in this lawsuit before you will
17 complicate the case for you, will complicate the case for the
18 jury, it will multiply the issues, it'll extend the days
19 necessary to try the Midwestern case.
20 We've added two new parties, new claims, a new
21 transaction, new fact issues, new misrepresentations forming
22 the basis for their fraud claim, and the Court says you need to
23 look at the petition and intervention and compare it to the
24 original petition that was filed. I have copies of that for
25 you. I can move to have them admitted as exhibits, or I'd ask
Denise Hill, CSR, RPR - Official - (940) 627-3200
271 st Judicial District Court - Wise-Jack Counties
R086
7
1 that you take judicial notice of them --
2 THE COURT: I'll take judicial notice of it.
3 MR. TROWBRIDGE: Thank you.
4 And to briefly summarize the last two issues, of
5 course you see how it's multiplying the issues. It's not going
6 to be efficient for this court. One might think, oh, well,
7 let's just have one trial instead of two. Well, we might have
8 one jury hearing it, but it would be combining two trials into
9 one. It will take just as long as the two trials.
10 Finally, it's not essential to protect their
11 claim. Even if we win on our bounced check, the $5 million and
12 then the unauthorized checks, that will not preclude
13 Intervenor's claims, and nothing prevents Intervenors from
14 filing their own separate lawsuit.
15 So for those reasons, we ask that you strike
16 Intervenor's petition in our motion.
17 THE COURT: Response.
18 MR. BOYD: Your Honor, very briefly, the
19 intervention is not going to complicate the case. What's going
20 to complicate is Midwestern's strategy in this case. What they
21 have sued the Lyons over is saying you are our agent, you stole
22 this money from us, you did not have authority to do that, and
23 they sued the Lyons for breach of fiduciary duty.
24 We have come in and said, exactly, we agree. He
25 was your agent. You were the one that invoiced us for the
Denise Hill, CSR, RPR - Official - (940) 627-3200
271 st Judicial District Court - Wise-Jack Counties
R087
8
1 cattle. We wrote you the check, Midwestern, and we never got
2 the cattle. The only issue that it adds is agency. What
3 they're wanting to do is take a position in the Lyons' case
4 that he was their agent but then have a separate case so they
5 can deny agency in our case. It's not -- the only issue it's
6 going to add is the agency question. All the other issues
7 overlap, whether the Lyons committed fraud, whether Midwestern
8 delivered the cattle. All of that is interwoven. And that's
9 the Acton (phonetic) case that we cite to the Court, where
10 there was a fraud case, it went up on appeal, that they
11 reversed the jury's finding on fraud and sending it back down,
12 the Court of Appeals instructed that the Intervenors should
13 have been allowed to intervene in that case because their
14 interests were interwoven.
15 It benefits the Court because we do have one
16 trial instead of two over these same issues. The other
17 parties, the Lyons, are not here today, but they have filed
18 briefs in opposition of the motion to strike. They don't want
19 to have two separate trials over these issues.
20 And the Union Carbide case that they rely on is
21 distinguishable for the very reason that we point out in our
22 brief. It says in that case there was no claim that the claims
23 of the intervenors would be affected by the underlying lawsuit.
24 Here, what happened was when they found out about what their
25 agent had done, they called us up and said, hey, we've got a
Denise Hill, CSR, RPR - Official - (940) 627-3200
271 st Judicial District Court - Wise-Jack Counties
R088
9
1 problem. We came down to Texas to meet with them. They were
2 already here. They seized 892 head of cattle from the Lyons.
3 We were told that was going to be used to kind of pay off
4 everybody who had been a victim of this scheme. Next thing we
5 find out, they get 41 head shipped to us, which were far short
6 of the 554 that we were supposed to get. They converted the
7 other -- we don't know what happened to it still, but that
8 cattle was seized from the Defendants who are the same people
9 we're both suing trying get the recovery. That's a joint
10 interest. And for the reasons we stated in the brief, that
11 satisfies the justiciable interest issue.
12 The multiplication issues we talked about.
13 There's only one issue that's going to be added, and that's the
14 agency. And it would be better for the Court to address that
15 in one case rather than have to address it twice in two
16 separate cases.
17 So for these reasons, we believe Union Carbide
18 is distinguishable. That was a case where there was a plant
19 explosion -- not explosion. There was one plaintiff that
20 worked at a particular plant over a time period that was
21 claiming exposure to one substance. Someone who had been
22 exposed to a different substance by the same Defendant at a
23 different plant over a different time period was trying to come
24 in and join that lawsuit because they had the venue that they
25 liked.
Denise Hill, CSR, RPR - Official - (940) 627-3200
271 st Judicial District Court - Wise-Jack Counties
R089
10
1 Here, there's no forum shopping. If the
2 intervention is struck, we turn around and file another lawsuit
3 tomorrow in Jack County. They're subject to venue here.
4 So the Union Carbide case is distinguishable.
5 We believe that this case falls under Acton where intervention
6 is proper, and we would ask that the Court deny the motion to
7 strike the intervention.
8 MR. TROWBRIDGE: Briefly, your Honor, Acton is a
9 Dallas Court of Appeals case; it's not binding on you. The
10 Texas Supreme Court case is binding on you.
11 That case says that once a party to the pending
12 suit moves to strike the intervention, the intervenors have a
13 burden to show a justiciable interest in the pending suit.
14 They can't meet that burden, and they haven't met that burden
15 in front of you. They've put forth no evidence demonstrating
16 that they're seeking to recover on the damages being sought by
17 Midwestern Cattle. They are the exact type of interlopers that
18 the Texas Supreme Court says you shouldn't allow into a suit.
19 They're going to complicate Midwestern Cattle's case.
20 Midwestern Cattle has a simple case. They're
21 adding fraud claims, constructive trust, conspiracy claims
22 alleging that Midwestern Cattle conspired with the Lyons. It
23 will -- it could very well triple the time of my trial, but it
24 certainly will double it. It will not be efficient. And under
25 the Texas Supreme Court mandate, they should not be allowed in
Denise Hill, CSR, RPR - Official - (940) 627-3200
271 st Judicial District Court - Wise-Jack Counties
R090
11
1 this case, and we ask that you strike the intervention.
2 MR. BOYD: Just briefly for the record, we did
3 offer Exhibits A through D. It was attached to our motion. We
4 would offer those so that they're before the Court.
5 THE COURT: Any objection to that?
6 MR. TROWBRIDGE: Let me look at those real
7 quick.
8 No objection to those exhibits, but they do
9 nothing to show that they have an interest in the damages we're
10 seeking.
11 THE COURT: All right. They're admitted.
12 Just out of curiosity, how many other potential
13 intervenors are there out there?
14 MR. TROWBRIDGE: I didn't even expect them to
15 intervene, so I don't think --
16 THE COURT: You might have some idea. I mean as
17 I recall from the prior hearings in this, there were several
18 MR. TROWBRIDGE: (Overlapping) Oh. We filed
19 suits against other people as separate suits, but I don't
20 anticipate anybody else intervening in this case.
21 THE COURT: All right. Just curious.
22 Gentlemen, I'm going to review the material
23 y'all have submitted on the cases, and I will get you an
24 opinion shortly.
25 (Proceedings adjourned)
Denise Hill, CSR, RPR - Official - (940) 627-3200
271 st Judicial District Court - Wise-Jack Counties
R091
12
1 STATE OF TEXAS
2 COUNTY OF JACK
3 I, DENISE HILL, Official Court Reporter in and
4 for the 271st Judicial District Court of Wise and Jack
5 Counties, State of Texas, do hereby certify that the above and
6 foregoing contains a true and correct transcription of all
7 portions of evidence and other proceedings requested in writing
8 by counsel for the parties to be included in this volume of the
9 Reporter's Record in the above-styled and numbered cause, all
10 of which occurred in open court or in chambers and were
11 reported by me.
12 I further certify that this Reporter's Record of
13 the proceedings truly and correctly reflects the exhibits, if
14 any, offered by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $200.00 and was
17 paid/will be paid by Bell, Nunnally & Martin.
18 WITNESS MY OFFICIAL HAND this the 31st day of
19 March, 2016.
20
21
22 ls/Denise Hill
DENISE HILL, CSR No. 4381
23 Expiration Date: 12/31/16
Official Court Reporter
24 27lst Judicial District Court
Wise-Jack Counties, Texas
25 denise.hill@co.wise.tx.us
Denise Hill, CSR, RPR - Official - (940) 627-3200
271 st Judicial District Court - Wise-Jack Counties
R092
Exhibit A
R093
Midwestern Cattle Marketing, LLC
P.O Sox. 710
S1dnt:y, N~ 69161
Phc.mc 306.2'19 0079
fDa 308.1~11/Jl It.VOICE 'OEALER·FEtO~R CATTLC
DATE .\/31/201~
10:
Northw``t C:itrtle Feer.lers
675 Rd West F Sout "I
Oru•e. Ne 69127
PAYMENT IS DUE WITHIN 24 HOURS OF RECEIPT OF THIS INVOICE
OPTION #l: WIRE FUNDS OPTION •2: FEDEX FUNDS (OVERNIGHT)
Point:r, West Community Bank Potnts Wesl Community Bank
809 r.unols St 809 Uhnu1~ St
PO Box 157 PO Bo:i 157
Sidney, NE 69162 \ Sidney. NE 69162
I
M1Clwcstem Oltle Marketing, u.c 'I MtClwe§tem Canle Marketing, UC
Custodial Account - Dealer Cu.~odlal Account - Oealer
ABA dl04t01627 ABA II 1CH 101G27
Account 1110111276 I Account 11'10111276
NCT WEiGHl "1IUCt:/CWl 1A,.'lOUNl
, Steer':. Snlt1 from Perrin, fX lI::~" I::::~:
I
11eac
355.613
I tiot]a Avt
•224. 50/cwr S/98,)~J. l~
•• i·
L± ·____ _ TOTAl $798,351.19
A" an aftlaav111s d~med lJy U~OA i>'> an official •C' origin (born~ ra1se.
RILEY LWESTOCK, SNC. ·
"'-''tt.D
`` . .. ~
ICY&.'LV~•l·l
AAn(lYOCll\llC):,:to Ut: I I LtMt:N I
DWAYNE MAYS
Owner/Manager
Res. 308·284·2069 CARLA DEKAY
Office Manager
SCOTT VAN WINKLE 308-284-2071
Owner/Manager
Res. 308-874-2813 LIVESTOCK AUCTION
MARKET, INC.
DATE P.O.Box30
Feb '4, 2016 Ogallalo, Ncbr~oka 69153 SELL-NO: 276 027516
308·284-2071
SOLD FOR
JEFF COX 221 S JEFFERSON AVE NORTH PLATTE, NE 6910
32 BLK C&C BR 205-8 779 24920 2,375.00H 38,000.00
3-6 YR OLD RUNNING BACK WITH ANGUS BU
LL
6 BBWF C&C BR 130-1 588 3530 1,675.00H 5,025.00
3-6 YR OLD RUNNING BACK WITH BULL
6 BLK C&C BR 205-8 973 5835 1,825.00H 5,475.00
5- SOLID MOUTH RUNNING BACK WITH BULL
2 BLK C&C BR 130-9 715 1430 1,100.00H 1,100.00
5-6 YR OLD RUNNING WITH BULL CALF HAS
CROOKED NECK
2 BLK C&C BR 202 660 1320 1,325.00H 1,325.00
SOLID MOUTH RUNNING BACK WITH BULL
2 BLK C&C BR 202 613 1225 1,075.00H 1,075.00
3-4 YR OLD RUNNING WITH BULL CALF IS
AS IS
Averages: Head Avg-wt Avg-$- cwt Avg-$-hd
Cow-cf pr. 25 1530 135.91 2,080.00
so 38260 $52,000.00
BEEF COUNCIL 50.00 HEALTH 19.00
INSURANCE 72.82 BRAND INSP. 50.00
MO TATTOO 125.00 HAY 300.00
TOTAL DEDUCTIONS
PLEASE KEEP THIS RECEIPT FOR YOUR RECORDS!! .. !.
NET PROCEEDS
PLEAS!! DETACH THIS PORTION DUORE DfPOSrTIHG CHECK
~
0
1041
ADAMS BANK 6 TRUST CO.
OGALLALA. NEBRASKA
Livestock Auction Market, Inc.
Custodial Account For
Shippers' Proceeds DATE CHECK NO. AMOUNT
PAY TO THE ORDER OF Feb 4, 2016 027516 $****50,208.18
*******Fifty Thousand Two Hundred Eight and 18/100 Dollars
OGALLALA LIVESTOCK AUCTION MARKET, INC.
CUSTODIAL ACCOUNT FOR SHIPPERS' PROCEEDS
NORTHWEST CATTLE FEEDERS VOID AFTeR 180 DAYS
& MIDWESTERN CATTLE MKTG
675 ROAD WEST F SOUTH
BRULE, NE 69127 SIGNATURE
NCF000021
R099
Exhibit D
R100
~+~
Midwestern Cattle Marketing, LLC
P.O. Box 710
INVOICE
Sidney, NE 69162
Phone 308.249.0079
Fax 308.254.4731
INVOICE #OEALER·FEEDER CATTLE
DATE: 3/31/2015
TO:
Northwest tattle Feeders
675 Rd West F South
Brule, Ne 69127
PAYMENT IS DUE wrrHIN 24 HOURS OF RECEIPT OF THIS INVOICE
omoN #1: WIRE AJNDS OPTION #2: FEDEX FUNDS (OVERNIGHT)
Points West Community Bank Points West Community Bank
809 nuno1s St 809 IITinols St
PO Box 157 PO Box 157
Sidney, NE 69162 Sidney, NE 69162
Midwestern cattle Marketing, LLC Midwestern cattte Marketing, UC
Custodial Account- Dealer Custodial Acmunt- Dealer
ABA #104101627 ASA #104101627
Account #10111276 Account #10111276
ITTM DESCRIPTION HEAD GROSS NET WEIGHT PRICE/CWT AMOUNT
COUNT WEIGKT
Steers Sold from Perrin, TX 554 362.870 355,613 $224.50/cwt $798,351.19
head 642# Ave.
)0
~l\I ~ ~
TOTAL \$798,351.19
As an affidavit Is deemed by USDA as an official record of Country of Origin, I attest through first-hand knowledge, normal
business records, or producer affidavtt(s) that all livestock referenced by this document or other communications speclflc to the
transaction and transferred are of US origin (born & ralsed). Midwestem CiJttle Marketing, LLC
Make all checks pay~ble to Midwestern Cattle Marketing, LLC
Thank you for your business!
R101
Mar 3115 01 :56p
p.1
.361_ <87o G-r-o~
355 6t3 Ay
1. J_ ·3
{; 7 q3; tJ I b. 09
110 fO · W teef.
* 7Cf /q()
I
@>.({)~
1-...yoJJ Frr,.rr.s / /JtUoJ l_y1>AJ
c,,K.. # / ooo 763
Uz e10 I
3 r-s, /,1.J t 'l,_;i.
·ny:S!
t -t? e J ~-1. "f
I
/'~T. _ fJ§.e .
../11 e. )e' - 177$. '.?
~u,,-.1 - s•'O~ "'!
~ - ssy. H-
R102
P:igc lot' l
r .. .l d o: C;rnv-.-, ~"
, . , ·~!.;:u 1 ? .':JC.:..\ ~·
1000763
• .:.v,.1:t t:•o (lATo
l ~ lf:,1.-' I
·.I
~>.v S eooJ t.fv,uc.)ri:.~ AJ l/t <.. fy -iJv r /,~ ov J.Ju1d
1
~()
OFCCR
,,..
O"
~-: l l 9C 3290<
L~IJc nC Sa..-..>: PO .; 1
20 . 5 - C3-30
00 t,~7 !i66 3C
:utp:-: .:r.:01~1.Cnbancsx0H1 !. 1t; _i\ ll i ll51 l\l ( il! 5l ..i»h., .' \ ;;ti1111- \ ·i.:'' lr.1n~.1c t iu11 ,t ' l, 1l.. ... S·l.~ ~O l5
R103
Imaging - View Transaction Page 1 of I
CURRENCY
·.i,·
COIN
.:;
. Zl,·1·
``I
eg
§ h I
i``
I
I t>
r f~:
I
01
5'. ``
~Bl
~ ~
irz
...
~:
~'
P.i ~
~
blj
~
m~1! ~
Bf
tJ J. I
i~U i-1(,,I
`` 5
))~
fl.I~
'"
I
i I
i
! .,j;
·.~
..
.,.
·~·
:;.-~.
i·.
'
L
~.
https://ecom.fnbancs.com/IMG_IMGl lSl/IMGl lSl.ashx?Action=ViewTransaction&Tok... 8/1312015
R104
Page 1of1
Close windOW
Get Rates & Transit Times
Details
Amounts aro shown in USO
Sarvlcea FodEx Priority FedEx Standard FedEx 2Day AMO FedEx 2DaYo FedEx Ezpl'988 Savoro
delivery with Ovemlgh\9 Overnight°
dateltlme 12:00 Fn Apr 03, 2015 16:30 Fri Apr 03, 2015 16:30 Mon Apr 06,
12:00 ThuApr02. 2015 16:30 Thu ~r02. 2015 2015
Baao Rate 32.55 31.35 19.31 17.55 14.10
Addftlonal chargn
(+)
•Fuel svtdlarge 0.47 0.46 0.30 0~7 0~3
+OAS Comm 2.35 2.35 2.35 2~5 2~5
Dlacounta(-)
·Bonus diacaunt 3.28 3.14 1.93 1.76 1.41
Total 32.11 31.02 20.03 18.41 15.27
More information about your results:
• Retes shown here may bo dltreiunt than the actual charges for your shlpmenl Dltturences may occur based en ecrual weight. dimensions, and
other fGdcl$. Consult tho applicable FedEx Service Guido for datsila.
• Fer more eccuralO rele and transit time quotes. view lhis Courtesy Rate Ouole alter selocUng any addlUoMI shipment options.
-
https://www.fedex.com/shipping/jsp/RatingDetail.jsp?locale=en_US 4/1/2015
R105