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, -rEJ~: 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
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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

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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

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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
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 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
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R104
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R105