Wolfgang P. Hirczy De Mino, PH.D. v. Star Operations., Inc., Lana L. Lewis and Victor C. Huff, Jr.

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ACCEPTED 01-18-00307-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 5/25/2018 9:53 AM CHRISTOPHER PRINE CLERK WOLFGANG P. HIRCZY DE MINO, PH.D. May 25,2018 FILED IN 1st COURT OF APPEALS Hon. Clerk of the First Court of Appeals HOUSTON, TEXAS 301 Fannin Street 5/25/2018 9:53:06 AM Houston, Texas 77002-2066 CHRISTOPHER A. PRINE Clerk RE: Court of Appeals Number: 01-18-00307-CVTrial Court Case Number: 2017-30978 Style: Wolfgang P. Hirczy De Mino, PH .D. v. Star Operations., Inc., Lana L. Lewis and Victor C. Huff, Jr. TO THE HONORABLE CLERK OF THE COURT OF APPEALS: In response to Justice Caughey's order dated May 22, 2018, attached please find a certified copy of the Request for the [Limited] Clerk's Record, and certified copies of the documents listed therein except for the Cost Statement, which was not available for download. One document has been added to those requested: ORDER SIGNED GRANTING TRIAL CONTINUANCE (Image. No. 79693284), which Judge McFarland signed April 27, 2018, a date after the request for the clerk's record was filed on April 19, 2018. I am enclosing this recent trial court order to show that the case is nowhere close to resulting in a final judgment. Payment proof for the certified copies is also attached. I apologize for the error in the reference to the notice of appeal on the Request for the Clerk's Record. It should have read April, not August. The image number, however, is correct. The notice is actually denominated Notice of Intent to Appeal (rather than plainly Notice of Appeal), reflecting the uncertainty as to whether the summary judgment order was appealable at the time. I hope this evidence in the form of certified copies will suffice for the Court to determine that it lacks jurisdiction to entertain an interlocutory appeal of the objected-to summary judgment order at this time. Should the Court make a contrary determination, I am prepared to proceed to brief the issues to be raised regarding the summary judgment order that forms the basis of my complaint about it. Respectfully submitted, /s/ ']1/0£'yY'P. A JVY' YI/:R,C O ZY VI.Jl1DV WOLFGANG P. HIRCZY DE MINO, Ph. D. wphdmphd@gmail.com P.O. Box 521 Bellaire, Texas 77402-0521 Tel.: (713) 806-0718 Prospective Appellant cc: David L. Smith (Prosperity Bank), Ranald Scott Calili {Defendant Star Operations, et all INDEX OF CERTIFIED COPIES A. Request for the Clerk’s Record, filed April 19, 2018. Image No. 79586255 B. Order Granting Defendants’ Motion for Summary Judgment signed March 12, 2018, which is labeled “ORDER FOR INTERLOCUTORY SUMMARY JUDGMENT SIGNED” on the docket. Image No. 79014804 C. Order Striking Plea in Intervention (on motion of Prosperity Bank) signed February 6, 2018, which is labeled “ORDER SIGNED STRIKING PLEADING” on the docket. Image No. 78502905 D. Plaintiff's Motion to Strike Plea in Intervention filed August 16, 2017. Image No. 76375521 E. Plea in Intervention and Motion To Abate Summary Judgment Motion filed August 14, 2017. Image No. 76334527 F. Notice of Intent to Appeal efiled April 14, 2018, file-stamped April 16, 2018. Image No. 79495685 G. Order Granting Opposed Motion for Continuance, signed April 27, 2018, which is labeled ORDER SIGNED GRANTING TRIAL CONTINUANCE on the docket. Image No. 79693284 Note: As evidenced by the order granting trial continuance, there is no final judgment, and there are no post-judgment motions or findings of fact. 4/19/2018 10:28 AM Chris Daniel - District Clerk Harris County Envelope No. 24010055 By: Duane Gilmore Filed: 4/19/2018 10:28 AM No. 2017-30978 PROSPERITY BANK § IN THE DISTRICT COURT § V. § § OF HARRIS COUNTY, TEXAS STAR OPERATIONS, INC. § VICTOR C. HUFF, JR. § LANA L. LEWIS § 133RD JUDICIAL DISTRICT § REQUEST FOR THE CLERK’S RECORD The undersigned hereby requests that the Clerk prepare the Clerk’s Record for appellate cause number 01-18-00307-CV,1 pending in the First Court of Appeals, and include the following trial court documents: 1. Order Granting Defendants’ Motion for Summary Judgment signed March 12, 2018, which is labeled “ORDER FOR INTERLOCUTORY SUMMARY JUDGMENT SIGNED” on the docket. Image No. 79014804 2. Order Striking Plea in Intervention (on motion of Prosperity Bank) signed February 6, 2018, which is labeled “ORDER SIGNED STRIKING PLEADING” on the docket. Image No. 78502905 3. Plaintiff's Motion to Strike Plea in Intervention filed August 16, 2017. Image No. 76375521 4. Plea in Intervention and Motion To Abate Summary Judgment Motion filed August 14, CertifiedDocumentNumber:79586255-Page1of2 2017. Image No. 76334527 5. Docket Sheet 6. Notice of Appeal efiled August 14, 2018, file-stamped August 16, 2018. Image No. 79495685 7. This Request for the Clerk’s Record 1 Wolfgang P. Hirczy de Mino, Ph. D. v. Star Operations, Inc. et al. http://www.search.txcourts.gov/Case.aspx?cn=01-18-00307-CV&coa=coa01 Page 1 8. Cost statement Please send an email to wolfganghirczy@gmail.com to advise as to the total cost for preparation of this record. Respectfully submitted, /s/ WOLFGANG P. HIRCZY DE MINO WOLFGANG P. HIRCZY DE MINO, Ph. D. Wolfganghirczy@gmail.com P.O. Box 521 Bellaire, Texas 77402-0521 Tel.: (713) 806-0718 CERTIFICATE OF SERVICE The undersigned hereby certifies that on April __19__, 2018 this request is being served contemporaneously on the attorneys of record of all parties as identified below through the EfileTexas.gov system. Mr. Ranald Scott Calili Mr. James B. Heston HESTON LAW FIRM, PLLC 607 Park Grove Drive, Ste. B Katy, TX 77450 Tel.: (713) 270-4833 Fax: (713) 583-9296 attorney@hestonciment.com Attorneys for Defendants / Third-Party Defendants Star Operations, Inc., Lana L. Lewis, and Victor C. Huff, Jr. CertifiedDocumentNumber:79586255-Page2of2 Mr. L. David Smith CHERNOSKY, SMITH, RESSLING & SMITH, PLLC 4646 Wild Indigo, Suite 110 Houston, Texas 77027 Tel.: (713) 800-8604 Fax: (713) 622-1026 Email: smith@csrslaw.com Attorney for Plaintiff PROSPERITY BANK /s/ WOLFGANG P. HIRCZY DE MINO WOLFGANG P. HIRCZY DE MINO Page 2 I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this May 25, 2018 Certified Document Number: 79586255 Total Pages: 2 Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com 4/14/2018 10:24 AM Chris Daniel - District Clerk Harris County Envelope No. 23902347 By: Phyllis Washington Filed: 4/16/2018 12:00 AM No. 2017-30978 PROSPERITY BANK § IN THE DISTRICT COURT § V. § § OF HARRIS COUNTY, TEXAS STAR OPERATIONS, INC. § VICTOR C. HUFF, JR. § LANA L. LEWIS § 133RD JUDICIAL DISTRICT § NOTICE OF INTENT TO APPEAL OF WOLFGANG P. HIRCZY DE MINO, PH.D. It has come to the attention of the undersigned that the Court signed a summary judgment on 03/12/2018 that ostensibly dismisses third-party claims of Wolfgang P. Hirczy de Mino with prejudice after the Court had granted Prosperity Bank’s motion to strike the Plea in Intervention1 that contained third-party claims by Wolfgang P. Hirczy de Mino, Ph.D. and had signed an order striking the intervention on 2/6/2018.2 The order is titled “Order Granting Defendant’s Motion for Summary Judgment” (Image No. 79014804). Because the Court had struck his plea in intervention on February 6, 2018, Wolfgang P. Hirczy de Mino was no longer a party to the case (as Intervenor), wherefore there were no claims by him that the Court could have properly entered summary judgment against on March 12, CertifiedDocumentNumber:79495685-Page1of3 2018, more than a month later. For the same reason, Wolfgang P. Hirczy de Mino had not filed a response to the motion for summary judgment. He would otherwise have done so. Although the docket reflects that the summary judgment is interlocutory, it nevertheless states on its face that it is final and appealable. 1 Plea in Intervention and Motion To Abate Summary Judgment Motion, filed 08/14/2017 (Image No. 76334527). 2 The summary judgment order includes claims that were not pleaded. Page 1 Wolfgang P. Hirczy de Mino did not have notice of the signing of the summary judgment order and only found out about it when he was served with a motion for continuance (Image No. 79481494) on Friday, April 13, 2018 and looked up the online docket for this case. He offers this fact as a reasonable explanation why the notice of appeal was not filed within 30 days of the signing of the order that is the subject of the appeal/collateral attack. See Tex. R. App. P. 26.3. Wolfgang P. Hirczy de Mino now hereby gives notice that he desires to appeal the (purportedly) final and appealable summary judgment signed on March 12, 2018 to the First or Fourteenth Court of Appeals. There were no prior appellate proceedings involving the same parties. Respectfully submitted, /s/ WOLFGANG P. HIRCZY DE MINO WOLFGANG P. HIRCZY DE MINO, Ph. D. Wolfganghirczy@gmail.com P.O. Box 521 Bellaire, Texas 77402-0521 Tel.: (713) 806-0718 CERTIFICATE OF SERVICE The undersigned hereby certifies that on April __14__, 2018 this instrument is being served on attorneys of record of all parties as shown below. Mr. Ranald Scott Calili Mr. James B. Heston HESTON LAW FIRM, PLLC 607 Park Grove Drive, Ste. B CertifiedDocumentNumber:79495685-Page2of3 Katy, TX 77450 Tel.: (713) 270-4833 Fax: (713) 583-9296 attorney@hestonciment.com Attorneys for Defendants / Third-Party Defendants Star Operations, Inc., Lana L. Lewis, and Victor C. Huff, Jr. Mr. L. David Smith CHERNOSKY, SMITH, RESSLING & SMITH, PLLC 4646 Wild Indigo, Suite 110 Page 2 Houston, Texas 77027 Tel.: (713) 800-8604 Fax: (713) 622-1026 Email: smith@csrslaw.com Attorney for Plaintiff PROSPERITY BANK /s/ WOLFGANG P. HIRCZY DE MINO WOLFGANG P. HIRCZY DE MINO, Ph. D. CertifiedDocumentNumber:79495685-Page3of3 Page 3 I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this May 25, 2018 Certified Document Number: 79495685 Total Pages: 3 Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com CertifiedDocumentNumber:79014804-Page1of2 CertifiedDocumentNumber:79014804-Page2of2 I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this May 25, 2018 Certified Document Number: 79014804 Total Pages: 2 Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com CertifiedDocumentNumber:78502905-Page1of2 CertifiedDocumentNumber:78502905-Page2of2 I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this May 25, 2018 Certified Document Number: 78502905 Total Pages: 2 Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com 8/16/2017 10:26 AM Chris Daniel - District Clerk Harris County Envelope No. 18873301 By: Anna Evetts Filed: 8/16/2017 10:26 AM CAUSE NO. 2017-30978 PROSPERITY BANK, § IN THE DISTRICT COURT Plaintiff § § VS. § § HARRIS COUNTY, TEXAS STAR OPERATIONS, INC., VICTOR § C. HUFF, JR., and LANA L. LEWIS, § Defendants § 133RD JUDICIAL DISTRICT PLAINTIFF'S MOTION TO STRIKE PLEA IN INTERVENTION TO THE HONORABLE JUDGE OF SAID COURT: Prosperity Bank, Plaintiff (herein referred to as the "Bank" and/or "Plaintiff") files this its Motion to Strike the Plea in Intervention filed by Wolfgang P. Hirczy De Mino, Ph.D., as an alleged Third Party Plaintiff and as grounds would show the Court as follows: 1. This is a lawsuit brought by Prosperity Bank for collection on a Promissory Note executed by Star Operations, Inc., the payment of which has been personally guaranteed by Victor C. Huff, Jr., and Lana L. Lewis. Plaintiff has moved for Summary Judgment on its note case. 2. The Plea in Intervention filed by Wolfgang P. Hirczy De Mino, Ph.D., alleges that he is an unsecured creditor of the Defendants on an open account. The Plea in Intervention, as a matter of law shows that the Intervenor has no justiciable interest in this lawsuit and the Intervention should be stricken. In Re: Union Carbide Corp., 273 S.W.3d, 152 (Tex. 2008). CertifiedDocumentNumber:76375521-Page1of2 WHEREFORE PREMISES CONSIDERED, Plaintiff requests that the Plea in Intervention be stricken and for such other and further relief to which Plaintiff may be justly entitled. [K:\Wpmain\06111\26717\Motion to Strike.wpd] 1 Respectfully submitted, CHERNOSKY, SMITH, RESSLING & SMITH, PLLC /S/ L. David Smith L. DAVID SMITH TBN: 18639300 4646 Wild Indigo, Suite 110 Houston, Texas 77027 Telephone: (713) 800-8604 Facsimile: (713) 622-1026 Email: smith@csrslaw.com Attorneys for Prosperity Bank CERTIFICATE OF CONFERENCE On August 14, 2017, I left a voice mail message for the Intervenor and sent him an email regarding this Motion. I have had no response and assume that this Motion is opposed. /S/ L. David Smith L. DAVID SMITH CERTIFICATE OF SERVICE This is to certify that in compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure, I, L. David Smith the undersigned, on this the 16th day of August, 2017, have served a true and correct copy of the foregoing Plaintiff's Motion to Strike Plea in Intervention all interested parties and/or all counsel of record at the name(s) and address(es) indicated below electronically through the electronic filing manager and/or via email, and/or 1st Class U.S. Mail and/or facsimile and/or certified mail, return receipt requested. Mr. James Heston Wolfgang P. Hirczy De Mino Mr. Daniel J. Ciment Best Western corpus Christi Heston Ciment, PLLC 300 N. Shoreline Blvd. CertifiedDocumentNumber:76375521-Page2of2 607 Park Grove Drive, Suite B Corpus Christi, TX 78401 Katy, TX 77450 and Telephone: (713) 270-4833 P.O. Box 521 Facsimile: (713) 583-9296 Bellaire, TX 77403-0521 Email: attorney@hestonciment.com Telephone: (713) 806-0718 Via Electronic Notice Email: Wolfganghirczy@gmail.com Counsel for the Defendants /S/ L. David Smith L. DAVID SMITH [K:\Wpmain\06111\26717\Motion to Strike.wpd] 2 I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this May 25, 2018 Certified Document Number: 76375521 Total Pages: 2 Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com 8/13/2017 8:21 PM Chris Daniel - District Clerk Harris County Envelope No. 18807952 By: Justina Lemon Filed: 8/14/2017 12:00 AM No. 2017-30978 PROSPERITY BANK § IN THE DISTRICT COURT § V. § § OF HARRIS COUNTY, TEXAS STAR OPERATIONS, INC § VICTOR C. HUFF, JR § LANA L. LEWIS § 133RD JUDICIAL DISTRICT § § WOLFGANG P HIRCZY DE MINO, PH.D. § § V. § § STAR OPERATIONS, INC § VICTOR C. HUFF, JR § LANA L. LEWIS § PLEA IN INTERVENTION AND MOTION TO ABATE SUMMARY JUDGMENT MOTION To the Honorable Jaclanel McFarland, District Court Judge: COMES NOW WOLFGANG P. HIRCZY DE MINO, PH. D., as THIRD-PARTY PLAINTIFF herein, and for cause of action, and grounds for relief, would show the following: PREJUDICE TO OTHER CREDITORS Pending before the Court is Prosperity Bank’s motion for summary judgment, seeking to impose CertifiedDocumentNumber:76334527-Page1of6 joint and several liability on STAR OPERATIONS, INC., VICTOR C HUFF, JR., and LANA L. LEWIS for nearly $1,000.000.00 on a promissory note and two commercial guaranty agreements. The motion is currently set to be heard by submission on Monday, August 14, 2017, at 8 AM. Prosperity Bank is not the only creditor. Third-Party Plaintiff herein would show that a just adjudication of this case cannot be had in the current posture, and that PROSPERITY BANK’s motion is premature. In addition to (allegedly) owing almost $1 million dollars to Prosperity Bank, Defendants owe money to Third-Party Plaintiff on open account in an amount that is currently less than $15,000 for 1 PROSPERITY BANK V. STAR OPERATIONS, INC. ET AL THIRD-PARTY PLEADING professional services and reimbursable expenses, and may owe money to several other current nonparties who have no notice of this lawsuit. Third-Party Plaintiff has reason to believe, and does believe, that Defendants still have the ability to pay, and that the grant of a summary judgment in the Bank’s favor would unfairly prejudice the rights of all other creditors under the factual particulars of this case, including the rights of the Third-Party claimant to compensation for services rendered and reimbursable expenses. FACTUAL AND PROCEDURAL BACKGROUND PROSPERITY BANK, Plaintiff herein, called a commercial promissory note in the original principal amount of $1,248,201.96 executed by STAR OPERATIONS, INC. as maker, and seeks to impose personal liability on Defendants VICTOR C. HUFF, JR. and LANA L. LEWIS based on guaranty agreements for the entire amount of principal outstanding, plus accrued financed charges. The Note has a stated maturity date of December 1, 2019, more than two years from today. The case record reflects that PROSPERITY BANK accelerated the Note with minimal or no notice. The Bank has given reason to believe that it will promptly procure writs of execution and garnishment to collect all amounts owed.1 Grant of summary judgment in favor of PROSPERITY BANK and enforcement thereof would prejudice all other third-party creditors, and their ability to collect what is due them, which would or could include current wages and compensation for professional services rendered. Undersigned Third-Party Plaintiff does not assert a claim for unpaid wages against the Defendants, but others might, and would be adversely affected by Prosperity Bank’s preemptive acceleration and foreclosure of the commercial note. Third-Party Plaintiff prays that the Court either deny Prosperity Bank’s motion on the merits, or defer a ruling on it, so that the priority order of all claims by affected parties (and current nonparties with potential claims) may be sorted out, and that claims covered by the necessaries doctrine, monies in the nature of trust funds and monies in the nature of earned and unpaid wages be accorded priority over the CertifiedDocumentNumber:76334527-Page2of6 Bank’s asserted breach-of-note and guaranty claims. PROSPERITY’S FURTIVE VENUE CHOICE Third-Party Plaintiff would respectfully point out that the promissory note on which Prosperity sues has a Corpus Christi (Nueces County) address for Prosperity Bank on it, that Defendant Star 1 This belief is based, in part, on the Bank having done so in other cases. See, e.g. Prosperity Bank vs. David Myerly Reavis, Lodestone Operating LLC, Case No. 2016CCV-62601-4, in the County Court at Law No 4 of Nueces County, Texas. (Default judgment for $158,108.84 granted 6/13/2017, writ of execution requested 07/17/2017). Docket sheet available at: http://odypa.co.nueces.tx.us/PublicAccess/CaseDetail.aspx?CaseID=2413858 2 PROSPERITY BANK V. STAR OPERATIONS, INC. ET AL THIRD-PARTY PLEADING Operations, Inc. has its registered agent address in Corpus Christi (Nueces County), that Defendant Lana Lewis was served in San Antonio (Bexar County) and that Defendant Victor Huff, by Prosperity’s own admission, is a resident of El Paso, Texas (El Paso County).2 The note specifies that payments are to be made at Victoria, Texas (Victoria County). +++ Prosperity Bank nevertheless sued all three Defendants in Houston (Harris County). Third-Party Plaintiff can only speculate about the reasons. CertifiedDocumentNumber:76334527-Page3of6 What is clear, however, is that all other creditors of the same Defendants, including any and all employees and subcontractors, are prejudiced by Prosperity Bank’s choice of a distant venue and its rush 2 The Bank regularly sues customers in Nueces County. See, e.g. Prosperity Bank v Jose Fermin Lerman, Case No. 2016CCV-62035-4 filed 09/01/2016 in County Court at Law No. 4 on Nueces County; Prosperity Bank vs. JJACT Inc., Jesse Anthony Trammell, Chantel Annette Trammell, Case No. 2015CCV-61822-1 filed 08/20/2015 in County Court at Law No. 1; Prosperity Bank vs. Mohamad Hassan, Antrados, P.A., Case No. 2016CCV-61887-4, filed 08/12/2016 in County Court at Law NO. 4; Prosperity Bank vs Stephen W Perales, Javier O Gonzalez, Case No. 2016DCV-3338-B, filed 07/04/2016 in the 117th District Court, Nueces County. 3 PROSPERITY BANK V. STAR OPERATIONS, INC. ET AL THIRD-PARTY PLEADING to obtain a judgment in excess of 1 million dollars against all three Defendants, jointly and severally,3 without anyone else becoming aware of the Bank’s actions, and without having an opportunity to have their claims heard. NO VENUE ALLEGATIONS In connection with the venue issue, the Court is requested to take judicial notice that there are no venue allegations in Prosperity Bank’s Original Petition as it was filed on May 9, 2017, and that the omission was not corrected when the Bank filed its Amended Original Petition on July 7, 2017. The Bank’s live pleading, which forms the basis for its pending motion for summary judgment, no longer contains service and address information for any one of the three Defendants,4 but that does not affect the Court’s power to take judicial notice of the first-filed pleadings, whether superseded or otherwise. Additionally, proof of service as to Lana Lewis and failure of service as to the other defendants is likewise on file, and is a proper object of judicial notice as to location and address information. Defendants, through their retained counsel with offices in Katy, Texas (near Houston), certainly have the prerogative to waive service of citation and objections to venue by filing a general denial and no motion to transfer venue, but the rights of third parties should not thereby be compromised. At the minimum, the additional parties (or potential parties/claimants) should be afforded notice and an opportunity to be heard before Prosperity Bank would render all three Defendants illiquid or insolvent through enforcement of a one million dollar summary judgment to be entered against them. THIRD-PARTY PLAINTIFF PLEADING FORMALITIES Third-Party Plaintiff’s claim against the Defendants does not affect the discovery level in effect in this case, though it is unclear what case type applies for expedited action purposes. Third-Party Plaintiff seeks procedural relief and monetary relief less than $100,000. All relief sought by Third-Party Plaintiff is within the Court’s jurisdiction to grant. Third-Party Plaintiff’s cause of action against the Defendants is suit on open account, and – in the CertifiedDocumentNumber:76334527-Page4of6 alternative – quantum meruit – for professional services. Third-Party Plaintiff does not seek attorney’s fees at this time, but reserves the right to seek such fees should formal attorney representation become necessary to vindicate Third-Party Plaintiff’s claim against the Defendants. 3 Prosperity pleads for relief in excess of $1 million for case type purposes, but seeks summary judgment for a lump sum amount that is less than $1 mil, excluding additional un-computed interest and attorney’s fees. 4 See PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION, p.1, ¶4 (reciting that Defendants have appeared and will be served with the amended pleading pursuant to T.R.C.P. 21a.). 4 PROSPERITY BANK V. STAR OPERATIONS, INC. ET AL THIRD-PARTY PLEADING PRAYER Wherefore, premises considered, Third-Party Plaintiff WOLFGANG P. HIRCZY DE MINO, Ph. D. requests that the Court deny the Bank’s motion for summary judgment and allow the case to proceed in accordance with the docket control order, and allow for all parties necessary for a just adjudication to be joined. Third-Party Plaintiff, WOLFGANG P. HIRCZY DE MINO, Ph. D., requests that the Court enter judgment for Third-Party Plaintiff, and against the Defendants for all amounts justly owed under the open-account arrangement. Third-Party Plaintiff prays for general relief. Respectfully submitted, /s/ WOLFGANG P. HIRCZY DE MINO WOLFGANG P. HIRCZY DE MINO, Ph. D. Wolfganghirczy@gmail.com Current Address: Best Western Corpus Christi 300 N Shoreline Blvd, Corpus Christi, TX 78401 Permanent mailing address: P.O. Box 521 Bellaire, Texas 77403-0521 Tel.: (713) 806-0718 THIRD-PARTY PLAINTIFF CERTIFICATE OF SERVICE The undersigned hereby certifies that on August 13, 2017 this pleading is being e-served CertifiedDocumentNumber:76334527-Page5of6 upon counsel for all parties who have appeared, and that such service is being effected through the e-file system, using the e-serve utility. James B. Heston Daniel J. Ciment Ranald Scott Calili HESTON CIMENT, PLLC 607 Park Grove Drive, Ste. B Katy, TX 77450 5 PROSPERITY BANK V. STAR OPERATIONS, INC. ET AL THIRD-PARTY PLEADING Tel.: (713) 270-4833 Fax: (713) 583-9296 attorney@hestonciment.com Attorneys for Defendants Star Operations, Inc., Lana L. Lewis, and Victor C. Huff, Jr., L. David Smith CHERNOSKY, SMITH, RESSLING & SMITH, PLLC 4646 Wild Indigo, Suite 110 Houston, Texas 77027 Tel.: (713) 800-8604 Fax: (713) 622-1026 Email: smith@csrslaw.com Attorney for Plaintiff PROSPERITY BANK /s/ WOLFGANG P. HIRCZY DE MINO WOLFGANG P. HIRCZY DE MINO, Ph. D. THIRD-PARTY PLAINTIFF CertifiedDocumentNumber:76334527-Page6of6 6 PROSPERITY BANK V. STAR OPERATIONS, INC. ET AL THIRD-PARTY PLEADING I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this May 25, 2018 Certified Document Number: 76334527 Total Pages: 6 Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com HCDistrictclerk.com PROSPERITY BANK vs. STAR OPERATIONS INC 5/25/2018 Court: Cause: 201730978 CDI: 7 133 DOCUMENTS Number Document Post Jdgm Date Pgs 79881602 Notice of Filing of Disclaimer in the First Court of Appeals 05/10/2018 2 ·> 79881603 Exhibit A 05/10/2018 21 79846676 Notice From First Court of Appeals 05/07/2018 5 79818391 Notice From First Court of Appeals 05/04/2018 1 79808776 Order (court of appeals) 05/03/2018 1 79816253 Court of Appeals First District of Texas (Notice of Distribution) 05/03/2018 2 79816266 Notice From First Court of Appeals 05/03/2018 7 79693284 ORDER SIGNED GRANTING TRIAL CONTINUANCE 04/27/2018 1 79586255 Request for the Clerk's Record 04/19/2018 2 79582428 Court of Appeals First District (General Information) 04/18/2018 5 79495685 Notice of Intent to Appeal of Wolfgang P. Hirczy de Mind, Ph.D. 04/16/2018 3 79513465 Defendant's Motion to Quash Deposition of Lana Lewis 04/16/2018 3 79513466 Defendant's Motion to Quash Deposition of Victor Huff, Jr 04/16/2018 3 79481494 Defendant's Opposed Motion for Continuance 04/13/2018 3 79481507 Proposed Order Granting Opposed Motion for Continuance 04/13/2018 2 79081383 Certificate of Written Discovery 03/19/2018 1 79014804 ORDER FOR INTERLOCUTORY SUMMARY JUDGMENT 03/12/2018 2 SIGNED 78766313 Prosperity Bank's Designation of Expert Witnesses 02/26/2018 2 78580667 Certificate of Written Discovery 02/13/2018 2 78502904 ORDER SIGNED DENYING FINAL SUMMARY JUDGMENT 02/06/2018 2 78502905 ORDER SIGNED STRIKING PLEADING 02/06/2018 2 78502912 ORDER SIGNED GRANTING MOTION TO SHOW 02/06/2018 1 AUTHORITY 78445640 Expert Witness Designations with Witness Credentials and 02/05/2018 9 Background 78403103 Defendants' and Defense Counsel's Response ti Third-Party Plaintiff 02/01/2018 7 78384004 Notice of Hearing on Rule 91 Special Exceptions (Rule 13 at the 01/31/2018 3 Court's Discretion) ·> 78384005 Proposed Sua Sponte Order to Show Cause 01/31/2018 1 78384007 Plaintiff's Memorandum in Support of Motion to Strike Intervention 01/31/2018 3 ·> 78384008 Case Cite: In Re: Union Carbide Corporation 01/31/2018 4 ·> 78384009 Case Cite: Trimble v. Onewest Bank, et al 01/31/2018 5 78386649 Objection to Proserity Bank's Stale Motion to Strike Plea in 01/31/2018 5 Intervention, Which was Filed Almost Hald a Year Ago 78383346 Defendant's Response to Third-Party Plaintiff's Rule 91 Motion and 01/30/2018 11 Rule 12 Motion ·> 78383347 Affidavit of Lana Lewis, Individually and as President of Star 01/30/2018 1 ·> 78383348 Affidavit of Victor C. Huff, Jr. 01/30/2018 1 78357034 Rule 91 Exception to Argumentum Ad Hominem of Mr. Ranald 01/29/2018 10 Scott Calili 78363289 Defendant's Amended Response to Plaintiff's Motion for Summary 01/29/2018 9 Judgment ·> 78363292 Exhibit A 01/29/2018 6 ·> 78363294 Exhibit C 01/29/2018 1 ·> 78363293 Exhibit B 01/29/2018 3 ·> 78363291 Proposed Order 01/29/2018 2 78363295 Exhibit D 01/29/2018 1 78363296 Affidavit Lana Lewis 01/29/2018 3 78363297 Affidavit of Victor Huff 01/29/2018 1 78363373 Defendant's Second Amended Answer 01/29/2018 6 ·> 78363380 Victor Verification 01/29/2018 1 ·> 78363374 Def Second Amended Answer - Exhibit A 01/29/2018 6 ·> 78363375 Def Second Amended Answer - Exhibit B 01/29/2018 3 ·> 78363376 Def Second Amended Answer - Exhibit C 01/29/2018 1 ·> 78363377 Def Second Amended Answer - Exhibit D 01/29/2018 1 ·> 78363378 Lana Verification 01/29/2018 1 78331481 ORDER SIGNED SETTING HEARING 01/26/2018 2 78227701 Certificate of written discovery 01/22/2018 2 78228340 Notice of Designation of Ranald Scott Calili as Attorney in Charge 01/22/2018 2 78231813 Corrected Motion directed to Ranald Scott Calili to Show Authority 01/22/2018 12 and Motion for Juudicial Notice that Heston Cimet PLLC is Defunct ·> 78231814 Proposed Order to Show Cause 01/22/2018 2 78250948 Defendants Response to All Filings by WPHDM 01/22/2018 5 78205545 Dr. Wolfgang P. Hirczy De Mino's Objection and Motion to Quash 01/19/2018 4 Defendants' Submission Notice for February 5. 2018 78191777 Notice of Hearing by Submission Only 01/18/2018 2 78192887 Notice of Hearing 01/18/2018 2 78205528 Request for Case Status Review and for a Ruling on Prosperity 01/18/2018 13 Bank's pending motion for summary judgment, including procedural matters ·> 78205531 .Exhibit C 01/18/2018 42 ·> 78205529 Exhibit A 01/18/2018 9 ·> 78205530 Exhibit B 01/18/2018 1 ·> 78205532 Exhibit D 01/18/2018 3 78164331 Defendants' traditional motion for summary judgment against 01/12/2018 17 Wolfgang P. Hirczy De Mino, PH.D ·> 78164512 Proposed Order 01/12/2018 2 ·> 78190870 Proposed Order and Opinion Resolving Plaintiff's Motion for 01/18/2018 9 Summary Judgment 78079221 Certificate of written discovery 01/08/2018 2 77737953 Certificate of Written Discovery of Third-Party Plaintiff 12/08/2017 2 76506474 Third-Party Plaintiff's Response to Prosperity's Motion to Strike 08/25/2017 5 ·> 76506475 Exhibit A 08/25/2017 27 76434619 Amended Certificate of Service 08/21/2017 2 76375521 Plaintiff's Motion to Strike Plea in Intervention 08/16/2017 2 76375522 Proposed Order Striking Plea in Intervention 08/16/2017 2 76375523 Notice of Submission 08/16/2017 2 76334527 Plea in Intervention and Motion To Abate Summary Judgment 08/14/2017 6 Motion 76344156 Defendant Reply to Third Party Plea in Intervention 08/14/2017 2 76274021 Plaintiff's Reply to Defendants' Responses to Plaintiff's Motion for 08/09/2017 2 Summary Judgment 76264265 All Defendant's Combined First Amended Answer 08/08/2017 3 All Defendant's Combined First Amended Answer 08/08/2017 76264274 Defendant Victor C. Huff Jr's Response to Plaintiff's Motion for 08/08/2017 3 Summary Judgment 76264345 Joint Response by Defendants Star Operations, Inc. and Lana L. 08/08/2017 13 Lewis to Plaintiff's Motion for Summary Judgment 76210297 DOCKET CONTROL/PRETRIAL ORDER SIGNED 08/03/2017 4 75982465 Notice of Submission 07/19/2017 2 75982467 Plaintiff's Motion for Summary Judgment 07/19/2017 6 ·> 75982469 Exhibit A 07/19/2017 3 ·> 75982470 Exhibit A-01 07/19/2017 2 ·> 75982471 Exhibit A-02 07/19/2017 3 ·> 75982473 Exhibit A-03 07/19/2017 3 ·> 75982474 Exhibit A-04 07/19/2017 30 ·> 75982476 Exhibit A-05 07/19/2017 3 ·> 75982477 Exhibit A-06 07/19/2017 3 ·> 75982478 Exhibit B 07/19/2017 3 ·> 75982480 Proposed Final Judgment 07/19/2017 3 75786137 Plaintiff's First Amended Original Petition 07/05/2017 5 ·> 75786138 Exhibit 01 07/05/2017 2 ·> 75786139 Exhibit 02 07/05/2017 3 ·> 75786140 Exhibit 03 07/05/2017 3 75612066 Certificate of Written Discovery 06/21/2017 2 75427563 Certificate of Written Discovery 06/08/2017 2 75427584 Defendant's Original Answer 06/08/2017 2 Defendant's Original Answer 06/08/2017 75402560 Motion and Application for Substituted Service of Citation under 06/07/2017 3 Rule 106 Texas Rules of Civil Procedure ·> 75402563 Civil Process Request 06/07/2017 1 ·> 75402562 Proposed Order Granting Motion For Rule 106 Substitute Service 06/07/2017 3 Of Process 75164877 Return of Service 05/19/2017 2 75165386 Return of Service 05/19/2017 2 75004067 Plaintiff's Original Petition 05/09/2017 6 ·> 75004072 Civil Case Information Sheet 05/09/2017 2 ·> 75004074 Civil Process Request 05/09/2017 2 ·> 75004068 Exhibit 01 05/09/2017 2 ·> 75004070 Exhibit 02 05/09/2017 3 ·> 75004071 Exhibit 03 05/09/2017 3 75076245 Civil Process Pick-Up Form 05/09/2017 1 5/25/2018 Office of Harris County District Clerk - Chris Daniel | Order Number: 716306 Harris County District Clerk Order Number: 716306 Customer / Shipping Information Ship Date: 5/25/2018 8:11:24 AM Download (zipped) Method: Customer: HIRCZY, WOLFGANG PO BOX 521 BELLAIRE, TX 77402 Order Detail Information Case: 201730978-7 PROSPERITY BANK vs STAR OPERATIONS INC [Doc# : 6 pages $6.00 76334527] Case: 201730978-7 PROSPERITY BANK vs STAR OPERATIONS INC [Doc# : 2 pages $2.00 76375521] Case: 201730978-7 PROSPERITY BANK vs STAR OPERATIONS INC [Doc# : 2 pages $2.00 78502905] Case: 201730978-7 PROSPERITY BANK vs STAR OPERATIONS INC [Doc# : 2 pages $2.00 79014804] Case: 201730978-7 PROSPERITY BANK vs STAR OPERATIONS INC [Doc# : 3 pages $3.00 79495685] Case: 201730978-7 PROSPERITY BANK vs STAR OPERATIONS INC [Doc# : 2 pages $2.00 79586255] Case: 201730978-7 PROSPERITY BANK vs STAR OPERATIONS INC [Doc# : 1 page $1.00 79693284] Payment Information Card: XXXXXXXXXXXX Subt otal: $18.00 Total: $18.00 https://www.hcdistrictclerk.com/edocs/Secure/PrintReceipt.aspx?OrderId=716306 1/1 CertifiedDocumentNumber:79693284-Page1of1 I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this May 25, 2018 Certified Document Number: 79693284 Total Pages: 1 Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com