Texas Court of Appeals, 15th District, 2025

Marvin Glenn Berry and Bonnie Berry as Successor in Interest to Dennis Wayne Berry v. Albert Theodore Powers and Allied Ports LLC

Texas Court of Appeals, 15th District · Decided April 22, 2025

Opinion

15-25-00060-CV

TRIAL COURT CAUSE NO. _24-BC11A-002__ § IN THE BUSINESS COURT FILED IN § 15th COURT OF APPEALS § AUSTIN,OF TEXAS TEXAS § 4/22/2025 8:20:36 AM § DIVISIONA._11A_ CHRISTOPHER PRINE Clerk

BUSINESS COURT CLERK’S INFORMATION SHEET THE FOLLOWING INFORMATION HAS BEEN COMPILED BY THE BUSINESS COURT CLERKS OFFICE:

Date of order appealed: ____April 2, 2025_____________________________________________ Type of Order (Interlocutory or Final): ___Interlocutory__________________________________ Date Motion for New Trial Filed: Request for Findings of Fact and Conclusions of Law filed: _______________________________ Date Notice of Appeal Filed: _April 21, 2025___________________________________________ Name of judge who entered judgment: Sofia Adrogué ______ Name of court reporter: Gina Jackson Address of court reporter: 4555 Wonder Hill Rd., Chappell Hill, Texas 77426 Name of attorney on appeal: ___Audrey Mullert Vicknair_______ SB#: _14650500____________ Attorney Address: 800 N. Shoreline Blvd., Suite 2000S, Corpus Christi, Texas 78401 Attorney E-Mail Address: [email protected]___________________________ Attorney on appeal (check applicable box): appointed x retained Pro Se Name of Appellee’s Attorney: __Alistair B. Dawson_____________________________________ Attorney Address: __1221 McKinney St., Ste. 4500, Houston, Texas 77010____________ Attorney E-Mail Address: [email protected]____________________________

Send Information Sheet, Notice of Appeal and Motion for New Trial (if filed) to: Fifteenth Court of Appeals via TAMES Court Reporter via E-Mail

On April 22, 2025 By: BC__(clerk's initials) E-filed in the Office of the Clerk for the Business Court of Texas 4/21/2025 5:53 PM Accepted by: Alexis Jennings Case Number: 24-BC11A-0025 The Business Court of Texas Eleventh Division Albert Theodore Powers; Allied Ports § LLC, § § Plaintiffs, § v. § § Cause No. 24-BC11A-0025 Allen Lawrence Berry; Marvin Glenn § Berry; and Bonnie Berry as successor in § interest to Dennis Wayne Berry, § § Defendants. § NOTICE OF APPEAL COME NOW Marvin Glenn Berry and Bonnie Berry as successor in interest to Dennis Wayne Berry, both of whom are Defendants/Appellants and both of whom file this Notice of Appeal pursuant to Tex. R. App. P. 25, 26. These Defendants desire to appeal from the Order Granting Temporary Injunction issued on April 2, 2025 by the Business Court of Texas, Eleventh Division. This appeal is to be taken to the Fifteenth Court of Appeals.

This appeal is accelerated pursuant to Tex. Civ. Prac. & Rem. Code section 51.014 and Tex. R. App. P. 26.1(b). This is not a parental termination or child protection case or an appeal from an order certifying a child to stand trial as an adult.

Tex. R. App. P. 25.1(d)(6).

Respectfully submitted, /s/ Audrey Mullert Vicknair Audrey Mullert Vicknair State Bar No. 14650500 Law Office of Audrey Mullert Vicknair N. Shoreline Blvd., Suite 2000S Corpus Christi, Texas 78401 (361) 884-5400; (361) 884-5401 (fax) [email protected]

LAW OFFICES OF DOUGLAS ALLISON N. Tancahua Street Corpus Christi, Texas 78401 T: 361-888-6002 F: 361-888-6651 E: [email protected] BY: _/s/ Douglas A. Allison Douglas A. Allison State Bar No. 01083500 ROBERTS MARKLAND LLP 2555 N MacGregor Way Houston, Texas 77004 E: [email protected] BY: /s/ Vanessa D. Gilmore VANESSA D. GILMORE State Bar No. 07960010 Counsel for Marvin Glenn Berry and Bonnie Berry as successor in interest to Dennis Wayne Berry

CERTIFICATE OF SERVICE I certify that on this 21st day of April, 2025, a true and correct copy of the foregoing Notice of Appeal was served on all of those named below in the manner indicated: Via E-File and E-Service Alistair B. Dawson Jake McClellan Madeline Gay Beck Redden E-mail: [email protected] Roland Garcia Greenberg Traurig E-mail: [email protected] Counsel for Plaintiffs Barrett Reasoner Gibbs & Bruns E-mail: [email protected] Counsel for Lawrence Berry Via email: Gina Jackson, CSR Official Court Reporter 11th Business District Court Harris County, Texas [email protected] Mary Kai Brandenburg Deputy Court Reporter District Courts Houston, TX 77002 [email protected] /s/ Audrey Mullert Vicknair Audrey Mullert Vicknair

Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Audrey Vicknair Bar No. 14650500 [email protected] Envelope ID: 99907635 Filing Code Description: Notice of Appeal Filing Description: Notice of Appeal Status as of 4/22/2025 7:33 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Barrett H.Reasoner [email protected] 4/21/2025 5:53:50 PM SENT Michael R.Absmeier [email protected] 4/21/2025 5:53:50 PM SENT Stephanie Sanchez [email protected] 4/21/2025 5:53:50 PM SENT Rosa Brennan [email protected] 4/21/2025 5:53:50 PM SENT Douglas Allison 1083500 [email protected] 4/21/2025 5:53:50 PM SENT Alistair Dawson 5596100 [email protected] 4/21/2025 5:53:50 PM SENT Roland Garcia 7645250 [email protected] 4/21/2025 5:53:50 PM SENT Michael Hummell 10271100 [email protected] 4/21/2025 5:53:50 PM SENT Mary Raffetto [email protected] 4/21/2025 5:53:50 PM SENT Michael McClellan 24109525 [email protected] 4/21/2025 5:53:50 PM SENT Roxanne Graham [email protected] 4/21/2025 5:53:50 PM SENT Christina Pena [email protected] 4/21/2025 5:53:50 PM SENT Kim Brunkenhoefer [email protected] 4/21/2025 5:53:50 PM SENT Susan Gonzales [email protected] 4/21/2025 5:53:50 PM SENT Bruce Baldree [email protected] 4/21/2025 5:53:50 PM SENT Sydney Ballesteros [email protected] 4/21/2025 5:53:50 PM SENT Cameron Roth [email protected] 4/21/2025 5:53:50 PM SENT Becky Young [email protected] 4/21/2025 5:53:50 PM SENT Madeline Gay [email protected] 4/21/2025 5:53:50 PM SENT Business Court 11A [email protected] 4/21/2025 5:53:50 PM SENT Liz Poirrier [email protected] 4/21/2025 5:53:50 PM SENT Vanessa Gilmore [email protected] 4/21/2025 5:53:50 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system.

THE BUSINESS COURT OF TEXAS ELEVENTH DIVISION Albert Theodore Powers; Allied Ports § LLC, § § Plaintiffs, V. Cause No. 24-BC11A-0025 Allen Lawrence Berry; Marvin Glenn Berry; and Bonnie Berry as successor in interest to Dennis Wayne Berry, Defendants.

ORDER GRANTING TEMPORARY INJUNCTION

On January 29-30, February 14 and 24, 2025, came to be heard Plaintiffs' Verified Third Amended Petition and Application for Temporary Restraining Order and Temporary Injunction, and Plaintiffs' Verified Fourth Amended Petition and Application for Temporary Restraining Order and Temporary Injunction (collectively, "Plaintiffs' Application"). At this juncture, having considered Plaintiffs' Application; Plaintiffs' Brief in Support of Temporary Injunction; Defendant Lawrence Berry's Temporary Injunction Brief; Defendants' Temporary Injunction Closing Brief; Plaintiffs' Proposed Order Granting Temporary Injunction; Marty/Bonnie Objections to Plaintiffs' Proposed Order;

Marty/Bonnie Supplemental Objections to Plaintiffs' Proposed Order; Plaintiffs' Response to Marty Berry and Bonnie Berry's Objections to Plaintiffs' Proposed Order; the evidence presented; the arguments of counsel; and the current status of the law, the Court finds that the temporary injunction requested in Plaintiffs' Application should be GRANTED.

The Court finds that Plaintiffs have demonstrated a probable right to relief on their declaratory judgment claims. Plaintiffs have also established that, absent a temporary injunction, there will be probable, imminent and irreparable injury in the interim. Under Texas law, the loss of management rights in a company constitutes irreparable injury.

Cheniere Energy, Inc. v. Parallax Enters. LLC, 585 S.W.3d 70, 83 (Tex. App.-Houston [14th Dist.] 2019, pet. dism'd). As both the First and Fourteenth Courts of Appeals have articulated, "the loss of management rights over a company are unique, irreplaceable, and 'cannot be measured by any certain pecuniary standard.' 73 Id. (quoting Sonwalkar v. St. Luke's Sugar Land P'ship, L.L.P., 394 S.W.3d 186, 201 (Tex. App.-Houston [1st Dist.] 2012, no pet.)).

At the four-day hearing on this matter, the testimony confirmed that Defendants Marty and Bonnie seek to terminate and assume Plaintiffs' management rights in Axis Midstream Holdings, LLC ("Axis") and the Lone Star Ports Project ("Project") without authority. Thus, if Defendants are not restrained, Plaintiffs will be irreparably harmed by the loss of management rights in Axis and the Project. In sum, if Defendants and their employees, agents, representatives, and any others acting on their behalf or in active concert with them are not temporarily enjoined as described herein, Plaintiffs face probable, imminent, and irreparable injury in the interim.

It is, therefore, ORDERED that, while this action is pending and until further order of the Court, Defendants, their employees, agents, representatives, and any others acting on their behalf or in active concert with them are HEREBY ENJOINED from taking any of the following actions unless expressly permitted by this Court to do so: A. Holding any meetings or taking any action for or on behalf of Axis unless called by or approved by the Manager Lone Star Ports Enterprises, LLC; B Changing, altering, or transferring in any way the permit (SWG-2018-00789) issued to Axis;!

Changing, altering, or transferring in any way the ownership, management, or tangible or intangible rights of Lone Star Ports Holdings, LLC, Lone Star Ports Ventures, LLC, Lone Star Ports Enterprises, LLC, Midway Junction Properties, LLC, Redfish Bay Properties, LLC, Harbor Island Properties, LLC, Lone Star Ports, LLC and/or Axis, except as provided in the governing operating agreement for the respective entity; D Holding any meetings that in any way seek to affect the management or - ownership interest of Powers or Allied Ports, LLC in the Project or in any of following entities: Lone Star Ports Holdings, LLC, Lone Star Ports Ventures, LLC, Lone Star Ports Enterprises, LLC, Midway Junction Properties, LLC, Redfish Bay Properties, LLC, Harbor Island Properties, LLC, Lone Star Ports, LLC and/or Axis, except as provided in the governing operating agreement for the respective entity; and Taking any action that would impact or affect Powers' or Allied Ports, LLC's ownership interest in the Project that is the subject of this lawsuit or in any of the following entities: Lone Star Ports Holdings, LLC, Lone Star Ports Ventures, LLC, Lone Star Ports Enterprises, LLC, Midway Junction Properties, LLC, ' The Court is aware that this aspect of the relief sought would be seemingly agreed if it was mutual as to all parties. See Marty/Bonnie Suppl. Objs. to Pls.' Proposed Order at 3 ("As such, M/B Berry have no objection to this particular request for injunctive relief and only request that such injunctive relief be mutual in all - respects (applying to all litigants [in] this cause)." (footnote omitted) (emphasis in original)); see also Def.

Lawrence Berry's Temporary Inj. Br. at 1 ("Lawrence does not oppose this injunctive relief ...."); and Pls.' Resp. to Marty Berry and Bonnie Berry's Objs. To Pls.' Proposed Order at 8 ("Finally, Marty and Bonnie state that they do not object to the Court entering a temporary injunction which enjoins the changing, altering, or transferring in any way the permit issued to Axis, as long as it is 'mutual in all respects.' ... Plaintiffs welcome agreement on that issue."). Of course, the parties may opt to execute a Rule 11 agreement on this matter, as reciprocal relief is not properly before the Court.

Redfish Bay Properties, LLC, Harbor Island Properties, LLC, Lone Star Ports, LLC and/or Axis, except as provided in the governing operating agreement for the respective entity.

It is further ORDERED that trial on the merits with respect to the ultimate relief sought shall begin on September 15, 2025, at 9:00 A.M. CST in the courtroom of the Eleventh Division of the Texas Business Court at 201 Caroline St., Houston, TX 77002, or at such other date, time, and place as the Court may subsequently designate by written order.

This Temporary Injunction shall not be effective unless and until Plaintiff executes and files with the Court a bond, in conformity with the law, in the amount of $10,000, which bond may also be in the form of a deposit of a negotiable obligation of any bank or savings and loan association chartered by the government of the United States of America or any state thereof that is insured by the government of the United States of America or any agency thereof, pursuant to Texas Rule of Civil Procedure 14(c).

Finally, it is ORDERED that the previously paid $500 bond already deposited as security for the previous Temporary Restraining Order shall be returned to Plaintiffs by check made payable to Beck Redden LLP and delivered to Alistair B. Dawson at Beck Redden LLP. Accordingly, on execution and filing by Plaintiffs of the bond in the amount of $10,000, and on approving the same according to the law, the Clerk of the Court is hereby directed to issue a Writ of Injunction for service to all parties with notice to appear at said trial.

All other relief sought at the temporary injunction hearing not granted in this Order is hereby expressly denied.

SO ORDERED. sicnep: M23 px. cer, april 2,2 25 (/ exas se Hop Sofi d rogué siness Court, Eleventh Divisior

Automated Certificate of eService This automated certificate of service was created by the efiling system.

Envelope ID: 99212593 Filing Code Description: No Fee Documents Filing Description: Status as of 4/3/2025 7:09 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Barrett H.Reasoner [email protected] 4/2/2025 5:41:34 PM SENT Michael R.Absmeier [email protected] 4/2/2025 5:41:34 PM SENT Stephanie Sanchez [email protected] 4/2/2025 5:41:34 PM SENT Rosa Brennan [email protected] 4/2/2025 5:41:34 PM SENT Douglas Allison 1083500 [email protected] 4/2/2025 5:41:34 PM SENT Alistair Dawson 5596100 [email protected] 4/2/2025 5:41:34 PM SENT Roland Garcia 7645250 [email protected] 4/2/2025 5:41:34 PM SENT Michael Hummell 10271100 [email protected] 4/2/2025 5:41:34 PM SENT Mary Raffetto [email protected] 4/2/2025 5:41:34 PM SENT Michael McClellan 24109525 [email protected] 4/2/2025 5:41:34 PM SENT Roxanne Graham [email protected] 4/2/2025 5:41:34 PM SENT Christina Pena [email protected] 4/2/2025 5:41:34 PM SENT Kim Brunkenhoefer [email protected] 4/2/2025 5:41:34 PM SENT Susan Gonzales [email protected] 4/2/2025 5:41:34 PM SENT Bruce Baldree [email protected] 4/2/2025 5:41:34 PM SENT Sydney Ballesteros [email protected] 4/2/2025 5:41:34 PM SENT Cameron Roth [email protected] 4/2/2025 5:41:34 PM SENT Becky Young [email protected] 4/2/2025 5:41:34 PM SENT Madeline Gay [email protected] 4/2/2025 5:41:34 PM SENT Business Court 11A [email protected] 4/2/2025 5:41:34 PM SENT Liz Poirrier [email protected] 4/2/2025 5:41:34 PM SENT Vanessa Gilmore [email protected] 4/2/2025 5:41:34 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system.

Envelope ID: 99212593 Filing Code Description: No Fee Documents Filing Description: Status as of 4/3/2025 7:09 AM CST Case Contacts Vanessa Gilmore [email protected] 4/2/2025 5:41:34 PM SENT Liz Poirrier [email protected] 4/2/2025 5:41:34 PM SENT Steven Higginbotham [email protected] 4/2/2025 5:41:34 PM SENT

Case-law data current through December 31, 2025. Source: CourtListener bulk data.