FILED
`DALLAS COUNTY
`10/14/20191:58 PM
`FELICIA PITRE
`DISTRICT CLERK
`
`CAROLYN SELLERS
`
`CAUSE NO. DC-19-01434
`
`LUXEMBORG TRADING, LLC
`
`Plaintiff,
`
`VS.
`
`ORGAN MOUNTAIN ENERGY LLC and
`
`DENNIS J- ROGERS, II,
`Defendants.
`
`WJWIwWIWJWIwWI
`
`IN THE DISTRICT COURT
`
`162nd JUDICIAL DISTRICT
`
`DALLAS COUNTY, TEXAS
`
`PLAINTIFF LUXEMBORG TRADING, LLC’S
`FIRST AMENDED ORIGINAL PETITION,
`
`APPLICATION FOR TEMPORARY RESTRAINING ORDER,
`AND APPLICATION FOR TEMPORARY INIUNCTION
`
`NOW COMES Plaintiff Luxemborg Trading, LLC (“Luxemborg”) and files its First Amended
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`Petition against Defendants Organ Mountain Energy LLC (“Defendant Organ Mountain”) and
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`Dennis J. Rogers, II (“Defendant Rogers”) (collectively, Defendant Organ Mountain and Defendant
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`Rogers are referred to herein as “Defendants”). By this First Amended Petition, Luxemborg
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`additionally serves its Application for Temporary Restraining Order and Application for Temporary
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`Injunction against Defendants.
`
`In support thereof, Luxemborg shows the Court as follows.
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`Discovery Plan
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`1.
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`Pursuant to Texas Rule of Civil Procedure 190.4, Luxemborg intends to conduct
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`discovery under a Level 3 Discovery Control Plan and hereby makes request for entry of an
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`appropriate scheduling order. Pursuant to Texas Rule Of Civil Procedure 47 (c), Luxemborg states that
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`the monetary amount in controversy exceeds $1,000,000.00. Pursuant to Texas Rule of Civil
`
`Procedure 169, this case is exempted from any expedited case management procedure.
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`PLtieS
`
`2.
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`Plaintiff Luxemborg Trading, LLC is a Texas limited liability company that appears in
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`this action by and through its attorneys of record, Corey F. \Vehmeyer and John W. Ellis, Santoyo
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`Wehmeyer P.C., 12400 San Pedro Avenue, Suite 300, San Antonio, Texas 78216.
`
`PLAINTIFF LUXEMBORG TRADING, LLC’S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION — PAGE 1
`
`

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`3.
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`Defendant Organ Mountain Energy LLC is Texas limited liability company with its
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`principal office located at 1920 McKinney Ave, Floor 7, Dallas, Texas 75201.
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`It may be served
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`through its attorney of record, Brett M. Chisum, MCCATHERN, PLLC, 3710 Rawlins, Suite 1600,
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`Dallas, Texas 75219.
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`4.
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`Defendant Dennis]. Rogers, II is an individual that resides in the State of Texas. He
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`may be served through his attorney of record, Brett M. Chisum, MCCATHERN, PLLC, 3710 Rawlins,
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`Suite 1600, Dallas, Texas 75219.
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`Venue and lurisdiction
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`5.
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`This Court has proper jurisdiction over the parties to and subject matter of this action.
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`The amount in controversy is within the jurisdictional limits of the Court.
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`6.
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`Venue of this action is proper in Dallas County, Texas, pursuant to Section 15.002 of
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`the Texas Civil Practice and Remedies Code because Dallas County is the county in which all or a
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`substantial part of the actions or omissions giving rise to the claim occurred.
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`Factual Background
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`7.
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`This lawsuit has arisen as a result of (1) Defendants’ refusal to return to Luxemborg
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`the sum of $1,000,000.00, which Luxemborg paid as an up—front deposit for an order of ultra low
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`sulfur diesel in August 2018 that was subsequently canceled, and (2) Defendants’ subsequent breach
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`of a settlement agreement
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`that
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`independently required them to return the $1,000,000.00 to
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`Luxemborg.
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`I. Luxemborg’s Payment of $1,000,000.00 for Diesel that it Never Received.
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`8.
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`In July 2018, Luxemborg placed an order with Defendant Organ Mountain and
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`Defendant Rogers for 1,050,000 gallons of ultra low sulfur diesel (ULSD). The total cost for
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`Luxemborg’s ULSD purchase was $2,194,500.00, and Defendant Organ Mountain issued an invoice
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`PLAINTIFF LUXEMBORG TRADING, LLC’S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION — PAGE 2
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`

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`for this amount on July 27, 2018, being Invoice No. 002518. A true and correct copy of Invoice No.
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`002518 is appended hereto as Exhibit A.
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`9.
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`Thereafter, on August 7, 8, 9, and 10, 2018, Luxemborg made four separate wire
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`transfers to Defendant Organ Mountain in the amounts of $310,000.00, $190,000.00, $350,000.00,
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`and $150,000.00, respectively, for a total of $1,000,000.00 as a deposit to begin shipment of the ULSD.
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`True and correct copies of the four wire transfer confirmations are appended hereto as Exhibit B.
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`10.
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`On August 13, 2018 after receiving the wire transfers from Luxemborg totaling
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`$1,000,000.00, Defendant Rogers, President of Defendant Organ Mountain, sent Luxemborg an
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`acknowledgment of payment and notification that the ULSD would soon begin shipping. The full
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`text of Defendant Rogers’s correspondence is as follows:
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`Invoice Payment and Product Shipment:
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`We have received the down payment for toward [sic] the invoice number listed above
`[002518] in the amount of $1 million dollars and we have begun our process of
`ordering the requested fuel. This process can typically take between 5 to 7 business
`days to complete and to have it ready for pickup in the TransMontaigne terminal. One
`day prior
`to loading the product, we will provide you with all
`the proper
`documentation (COA, ETA, ETC) and begin to clear your carriers.
`
`We appreciate your business!
`
`Sincerely,
`
`Dennis Rogers,
`President Organ Mountain Energy, LLC
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`A true and correct copy of the above correspondence from Defendant Rogers is appended hereto as
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`Exhibit C.
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`11.
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`Defendants wired Luxemborg’s $1,000,000.00 down payment to Phoenix Energy
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`Marketing, LLC (Phoenix) to initiate the shipment process of the ULSD, however, Phoenix never
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`began treating the diesel for shipment.
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`PLAINTIFF LUXEMBORG TRADING, LLC’S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION — PAGE 3
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`

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`12.
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`Approximately one month passed, but Defendants never shipped or otherwise made
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`available any of the ULSD for which Luxemborg had paid $1,000,000.00. Luxemborg engaged
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`counsel in mid—September and sent notice to Defendants that the diesel order was being canceled, and
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`to return the $1,000,000.00 to Luxemborg. A copy of that notice of cancelation is attached hereto as
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`Exhibit D.
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`13.
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`Defendant Rogers agreed to return the $1,000,000.00 to Luxemborg on the condition
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`that Luxemborg executed a release of claims to Defendant Rogers and Defendant Organ Mountain.
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`11. Execution of a Settlement Agreement Requiring Return of the $1,000,000.00 to
`Luxemborg.
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`14.
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`Effective as of October 24, 2018, Luxemborg and Defendants entered into a formal
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`Settlement Agreement and Mutual Release (the “ ettlement Agreement”). A true and correct copy of
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`the Settlement Agreement is appended hereto as Exhibit E.
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`15.
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`In the Settlement Agreement, all parties agreed that the diesel order (Invoice No.
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`002518) had been canceled, and that Defendants would return Luxemborg’s $1,000,000.00 within
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`fourteen (14) days of the Settlement Agreement’s effective date of October 24, 2018. The Settlement
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`Agreement also contained mutual releases from Luxemborg and Defendants to one another, but the
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`releases each expressly provided that “[a] ny claims arising from fraud, conversion, and/or a breach
`
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`of this Settlement Agreement are specifically excluded from this release.” (emphasis added).
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`16.
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`Luxemborg complied with all of its obligations under the Settlement Agreement, and
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`in accordance with the terms of the same, Defendants were required to pay $1,000,000.00 to
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`Luxemborg within 14 days of October 24, 2018, being November 7, 2018. The Settlement Agreement
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`further explicitly acknowledged that the $1,000,000.00 was “owed by [Defendant] Organ Mountain
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`fl [Defendant] Rogers.” (emphasis added).
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`PLAINTIFF LUXEMBORG TRADING, LLC’S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION — PAGE 4
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`

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`III. Defendants’ Breach of the Settlement Agreement.
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`17.
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`November 7, 2018 passed without Defendants making their required $1,000,000.00
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`payment to Luxemborg. To date, Defendants have failed and refused to pay the $1,000,000.00 they
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`owe to Luxemborg under the terms of the Settlement Agreement, with no justification for their
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`breach.
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`18.
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`Since November 8, 2018, Phoenix has refunded all of Luxemborg’s $1,000,000.00
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`down payment to Defendant Organ Mountain. Luxemborg’s $1,000,000.00 is currently in Organ
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`Mountain’s Frost Bank account.
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`19.
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`Luxemborg now brings this lawsuit to recover its $1,000,000.00, along with all
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`available interest and attorneys’ fees,
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`20.
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`All conditions precedent to Luxemborg’s maintenance of this action have occurred,
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`been performed, or been waived, and proper presentment has been made,
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`Causes of Action
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`Breach (yr Commit (Breeze/a oft/9e Self/ewe”! Agreemem)
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`21.
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`The paragraphs set forth above are incorporated here by reference.
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`22.
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`The Settlement Agreement constitutes a valid and binding contract between
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`Defendants on the one hand, and Luxemborg on the other hand.
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`In the Settlement Agreement,
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`Defendants agreed that they owed, and would pay, Luxemborg the sum of $1,000,000.00 by
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`November 7, 2018. Luxemborg fully performed all of its obligations under the Settlement Agreement.
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`However, Defendants materially breached the Settlement Agreement by refusing to make the
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`$1,000,000.00 payment to Luxemborg as required. As a direct result of Defendants’ breach,
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`Luxemborg has suffered actual damages, including, without limitation, the $1,000,000.00 payment
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`Luxemborg never received from Defendants. Defendants are jointly and severally liable for these
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`damages.
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`PLAINTIFF LUXEMBORG TRADING, LLC’S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION — PAGE 5
`
`

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`23.
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`Pursuant to Section 38.001(8) of the Texas Civil Practice and Remedies Code,
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`Luxemborg additionally seeks recovery of its reasonable attorneys’ fees incurred as a result of
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`Defendants’ breaches of the Settlement Agreement.
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`Bram/a ofCom‘mcz‘ flfirear/y 0f#96 Agreemenl to Provide Diem!)
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`24.
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`The paragraphs set forth above are incorporated here by reference.
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`25.
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`Pleading additionally and/or in the alternative, Luxemborg paid $1,000,000.00 to
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`Defendants for an equivalent volume of ULSD. Defendants acknowledged receipt of Luxemborg’s
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`payment and agreed to provide the ULSD. This constituted a valid contract between Luxemborg and
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`Defendants, and Luxemborg performed all of its obligations under that contract. Defendants,
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`however, breached the contract by failing to furnish the ULSD, but keeping Luxemborg’s
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`$1,000,000.00 without justification. As a direct result of Defendants’ breach, Luxemborg has suffered
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`actual damages, including, without limitation, the $1,000,000.00 sum that Defendants have never
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`returned to Luxemborg. Defendants are jointly and severally liable for these damages.
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`26.
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`Pursuant to Section 38.001(8) of the Texas Civil Practice and Remedies Code,
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`Luxemborg additionally seeks recovery of its reasonable attorneys’ fees incurred as a result of
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`Defendants’ breaches.
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`Unjmt Emit/977267227M0716} Had and Reteivea’
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`The paragraphs set forth above are incorporated here by reference.
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`Pleading additionally and/or in the alternative, Defendants received and still hold
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`27.
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`28.
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`$1,000,000.00 to which they are not entitled. Defendants received the $1,000,000.00 in exchange for
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`their agreement
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`to provide ULSD to Luxemborg, an agreement
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`they never
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`fulfilled.
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`The
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`$1,000,000.00 being wrongfully held by Defendants belongs to Luxemborg in equity and good
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`conscience, and it should be returned by Defendants. Luxemborg seeks equitable relief requiring
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`Defendants to return the $1,000,000.00 to Luxemborg.
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`PLAINTIFF LUXEMBORG TRADING, LLC’S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION — PAGE 6
`
`

`

`COW/luau [aw Fraud, Fraudulent qu’ureiuem‘, and Fraud 19/ Noudz'rt/orure
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`The paragraphs set forth above are incorporated here by reference.
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`Pleading additionally and/or in the alternative, Defendants falsely represented that
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`29.
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`30.
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`they would return Luxemborg’s $1,000,000.00 if Luxemborg fulfilled its obligations under the
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`Settlement Agreement. This representation was material to the agreement, because but for the
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`Defendants’ representations, the Settlement Agreement would not have been executed.
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`31.
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`Defendants knew that, even if the terms of the Settlement Agreement were performed
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`by Luxemborg, they would not return the $1,000,000.00 to Luxemborg. The Defendants in fact did
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`not return Luxemborg’s $1,000,000.00, despite their promise and obligations under that Settlement
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`Agreement and Luxemborg’s compliance with the terms of the Settlement Agreement.
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`32.
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`Defendants intended to enter into the Settlement Agreement so that Luxemborg
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`would resolve the dispute over Luxemborg’s $1,000,000.00. Luxemborg complied with the Settlement
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`Agreement, and Defendant did not return the $1,000,000.00.
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`33.
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`Luxemborg has suffered $1,000,000.00 in actual damages as a result of the Defendants’
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`fraudulent representations in connection with the Settlement Agreement. Pursuant
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`to Section
`
`41.003(a) (1) Texas Civil Practice & Remedies Code, Luxemborg also seeks exemplary damages in the
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`amount of $2,000,000.00 as a result of Defendants’ fraudulent representations in connection with the
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`Settlement Agreement.
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`34.
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`Additionally and/ or
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`in the
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`alternative, Defendants made
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`fraudulent
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`false
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`representations and failed to disclose materials facts in connection the original contract to provide
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`Luxemborg with diesel. Defendants made these false representations and intentionally did not
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`disclose material facts in order to induce Luxemborg to pay them $1,000,000.00. Defendants never
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`had any intention of providing diesel to Luxemborg and intended from the beginning to withhold any
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`repayment of Luxemborg’s $1,000,000.00, even after Luxemborg discovered their fraud.
`
`PLAINTIFF LUXEMBORG TRADING, LLC’S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION — PAGE 7
`
`

`

`35.
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`Luxemborg has suffered $1,000,000.00 in actual damages as a result of the Defendants’
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`fraudulent representations and non—disclosures in connection with the contract to provide diesel.
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`Pursuant to Section 41.003(a) (1) Texas Civil Practice & Remedies Code, Luxemborg also seeks
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`exemplary damages in the amount of $2,000,000.00 as a result of Defendants’
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`fraudulent
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`representations and non—disclosures in connection with the contract to provide diesel.
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`Application for Temporary Restraining Order and Temporary Injunction
`
`The paragraphs set forth above are incorporated here by reference.
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`Luxemborg has causes of action against Defendants for their breach of two contracts,
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`36.
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`37.
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`unjust enrichment, and various species of fraud, and Luxemborg has a probable right to the relief
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`sought therefore.
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`38.
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`In the interim, Luxemborg faces probable, substantial, imminent, irreparable harm if
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`the Court does not immediately issue a Temporary Restraining Order and, after evidentiary hearing, a
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`Temporary Injunction that restrains and enjoins Defendants from disposing of any of Luxemborg’s
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`$1,000,000.00 ULSD down payment that was refunded to Defendants by Phoenix that is currently in
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`Defendant Organ Mountain’s Frost Bank account. The $1,000,000.00 in Defendant Organ
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`Mountain’s Frost Bank account, and its contents, is central and intimately related to Luxemborg’s
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`causes of action against Defendants.
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`39.
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`Defendant Organ Mountain is run solely by Defendant Rogers. The Organ Mountain
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`Frost Bank account that holds Luxemborg’s $1,000,000.00 is under the personal control of Defendant
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`Rogers. Defendant Rogers understands that Luxemborg’s $1,000,000.00 could be transferred out of
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`Defendant Organ Mountains account to his personal account in a single key stroke without any
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`approval or oversight.
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`PLAINTIFF LUXEMBORG TRADING, LLC’S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION — PAGE 8
`
`

`

`40.
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`A temporary restraining order and injunction would ensure that Luxemborg’s
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`$1,000,000.00 remains available and protected from the fraudulent transfer out of the account in
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`attempts to further delay return of Luxemborg’s $1,000,000.00 down payment.
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`41.
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`Luxemborg has no adequate remedy at law to recover the full amount of the
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`$1,000,000.00 down payment once Defendants dispose of the money.
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`42.
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`The sworn Deposition of Dennis J. Roger, II is attached hereto in support of the
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`foregoing allegations.
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`Demand for |ury Trial
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`43.
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`Luxemborg hereby makes written demand for a trial by jury and contemporaneously
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`herewith pays the requisite fee. Request is made that the cause be set on the Court’s jury docket and
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`that the Clerk make notation of payment of fee on the Court’s docket sheet.
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`mm
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`WHEREFORE, PREMISES CONSIDERED, Luxemborg prays that Defendants be cited to
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`appear herein and that Luxemborg be awarded the following relief against Defendants:
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
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`A Temporary Restraining Order from this Court prohibiting Defendants
`from disposing, in any way, of Luxemborg’s $1,000,000.00 in their Frost
`Bank account;
`
`After evidentiary hearing, a Temporary Injunction from this Court
`continuing the conditions and restrains of the Temporary Restraining
`Order for the duration of this lawsuit;
`
`All actual, special, and consequential damages as pled for herein in an
`amount not less than $1,000,000.00;
`
`All exemplary damages as permitted by Section 41 .003 (a) (1) 0f the Texas
`Civil Practice and Remedies Code in the amount of $4,000,000.00, or an
`amount not less than the maximum amount permitted by applicable law
`based on the allegations of actual damages;
`
`All reasonable and necessary attorneys’ fees, including contingent fees
`through the Court of Appeals and the Supreme Court of Texas;
`
`PLAINTIFF LUXEMBORG TRADING, LLC’S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION — PAGE 9
`
`

`

`F.
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`G.
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`H.
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`All costs of court;
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`Pre—judgment and post—judgment interest on the foregoing amounts at
`the highest rate permitted by law; and
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`All such other and further relief, general and special, at law and in equity,
`to which Luxemborg may be justly entitled.
`
`Respectfully submitted,
`
`SANTOYO WEHMEYER RC.
`
`IBC Highway 281 North Centre Building
`12400 San Pedro Avenue, Suite 300
`
`San Antonio, Texas 78216
`
`Telephone: 210—920—9459
`Facsimile: 210—920—9490
`
`By:
`
`/.r/ Corgi F. Webmever
`Corey F. Wehmeyer
`State Bar No. 24051903
`
`cwebmeyer@5wmegylam mm
`Benjamin Robertson
`State Bar No. 24083748
`
`brobeflmn@mxm€1:gylaw. am
`John \W. Ellis
`State Bar No. 24087467
`
`jellzlr@mlme@'law com
`
`ATTORNEYS FOR PLAINTIFF
`
`LUXEMBORG TRADING, LLC
`
`PLAINTIFF LUXEMBORG TRADING, LLC’S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION — PAGE 10
`
`

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`CERTIFICATE OF SERVICE
`
`I do hereby certify that a true and correct copy of the above and foregoing Plaintiff Luxemborg
`Trading, LLC’s First Amended Petition has, on this 14th day of October 2019, been served on the
`following counsel of record via email and e—service:
`
`Brett M. Chisurn
`
`lat/Jiwm@mmztbem/azw. 60/72
`MCCATHERN, PLLC
`
`Regency Plaza
`3710 Rawlins, Suite 1600
`
`Dallas, Texas 75219
`
`ATTORNEY FOR DEFENDANTS
`
`/5/ Corgy F. Webmever
`Corey F. Wehmeyer
`
`PLAINTIFF LUXEMBORG TRADING, LLC’S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION — PAGE 11
`
`

`

`DenmsJ.Roge$,H
`
`CAUSE NO. DC-19—Ol434
`
`LUXEMBORG TRADING LLC,
`
`)
`
`IN THE DISTRICT COURT
`
`Plaintiff,
`
`VS
`ORGAN MOUNTAIN ENERGY LLC
`
`and DENNIS J. ROGERS, II,
`
`Defendants.
`
`;
`; DALLAS COUNTY, TEXAS
`3
`
`)
`
`;
`
`162ND JUDICIAL DISTRICT
`
`*1:*****************************************
`
`ORAL AND VIDEOTAPED DEPOSITION OF
`
`DENNIS J. ROGERS, II
`
`APRIL 29, 2019
`
`it*****************************************
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`ORAL AND VIDEOTAPED DEPOSITION of DENNIS J.
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`ROGERS, II, produced as a witness at the instance of
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`the Plaintiff, and duly sworn, was taken in the
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`above—styled and numbered cause on the 29th day of
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`April, 2019,
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`from 9:37 a.m.
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`to 3:20 p.m., before
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`Michelle L. Munroe, CSR in and for the State of
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`Texas, stenographically reported, at McCathern, PLLC,
`
`3710 Rawlins, Suite 1600, Dallas, Texas, pursuant to
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`the Texas Rules of Civil Procedure and the provisions
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`stated on the record or attached hereto.
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`Lexfias
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`PLAINTIFF LUXEMBORG TRADING, LLC'S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION - PAGE 12
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`

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`Dennis J. Rogers, ||
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`APPEARANCES
`
`FOR THE PLAINTIFF:
`
`Mr. Corey F. Wehmeyer
`Mr. John W. Ellis
`
`SANTOYO MOORE WEHMEYER, P.C.
`12400 San Pedro Avenue
`Suite 300
`
`San Antonio, Texas
`
`78216
`
`210.998.4200
`210.998.420l
`
`telephone
`fax
`
`cwehmeyer@smwenergylaw.com
`jellis@smwenergylaw.com
`
`FOR THE DEFENDANTS:
`Mr. Brett M. Chisum
`
`MCCATHERN, PLLC
`3710 Rawlins
`Suite 1600
`
`75219
`Dallas, Texas
`telephone
`214.741.2662
`fax
`214.741.4717
`bchisum@mccathernlaw.com
`
`ALSO PRESENT:
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`Will Rain, Video Technician
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`Lexflas
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`PLAINTIFF LUXEMBORG TRADING, LLC'S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION - PAGE 13
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`

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`
`Dennis J. Rogers, ||
`169
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`13:54:11
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`13:54:15
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`‘3:54:‘7
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`‘3:54:‘7
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`‘3:54:‘9
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`13:54:21
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`13:54:22
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`L3z54z52 18
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`13:54:58 21
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`13:54:59 22
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`13:55:02 23
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`13:55:04 24
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`So we know that Luxemborg entrusted
`
`$1 million to Organ Mountain Energy, LLC, correct?
`
`A.
`
`Yes.
`
`Q.
`
`And we know that it didn't receive
`
`anything in return for that, did it?
`
`A.
`
`Q.
`
`No, it did not.
`
`And then as we look at it, did you tell
`
`Luxemborg that the $1 million was going to be sent
`
`to any other entity?
`
`A.
`
`Q.
`
`A.
`
`Yes,
`
`I believe I did.
`
`Who did you tell?
`
`I don't think I had finalized the actual
`
`supplier that it was going to be sent to, but
`
`they
`
`did know I would have to cover the cost of the fuel
`
`in itself and so it would have to be paid to one of
`
`the suppliers.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`You told them that you had a supplier?
`
`Yes.
`
`Who did you tell them your supplier was?
`
`I believe either the same list I provided
`
`earlier or even a few others.
`
`Q.
`
`And who did you tell that you were —— that
`
`you were going through a supplier for this?
`
`A.
`
`Again, Juan Quintanilla and Oscar Puerta.
`
`
`
`
`
`13:55:09 25
`Q.
`Are you guessing at this?
`
`
`Lexflas
`
`PLAINTIFF LUXEMBORG TRADING, LLC'S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION - PAGE 14
`
`

`

`173
`Dennis J. Rogers, ||
`
`13:58:
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`22
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`13:58:
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`25
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`13:58:
`
`27
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`13:58:
`
`29
`
`Q.
`
`And in reading this to the jury you say,
`
`Invoice payment and product shipment. We have
`
`received the down payment.
`
`Do you see that, "the down payment"?
`
`13:58:
`
`31
`
`A.
`
`Yes.
`
`13:58:
`
`31
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`13:58:
`
`33
`
`Q.
`
`You don't say a portion of the down
`
`payment, do you?
`
`13:58:
`
`35
`
`A.
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`NO.
`
`13:58:
`
`36
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`13:58:
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`38
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`10
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`13:58
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`:40
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`ll
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`13:58:
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`44
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`12
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`13:58
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`:46
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`13
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`50
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`14
`
`Q.
`
`You said, We have received the down
`
`payment for toward the invoice number listed above
`
`in the amount of $1 million and we have begun our
`
`process of ordering the requested fuel. This
`
`process typically takes between 5 to 7 business days
`
`
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`13:59:
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`13:59:
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`13:59:
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`13:59:
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`13:59:
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`13:58:
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`15
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`O2
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`21
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`O9
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`22
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`l2
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`23
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`13
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`24
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`to complete and to have it ready for pickup in the
`
`TransMontaigne terminal. One day prior to loading
`
`the product, we will provide you with all the proper
`
`documentation, COA ETA, et cetera, and begin to
`
`clear your carriers. We appreciate your business.
`
`Sincerely, Dennis Rogers.
`
`That is your signature?
`
`Yes, sir.
`
`So you certainly knew how to send an
`
`A.
`
`Q.
`
`actual letter, right?
`
`A.
`
`Yes.
`
`
`
`25
`13
`13:59:
`And you don‘t say that the down payment is
`Q.
`
`
`Lexflas
`
`PLAINTIFF LUXEMBORG TRADING, LLC'S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION - PAGE 15
`
`

`

`
`Dennis J. Rogers, ||
`176
`
`14:01:04
`
`14:01:07
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`14:01:07
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`14:01:10
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`14:01:13
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`14:01:15
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`14:01:16
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`14:01:17
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`14:01:20
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`1
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`14:01:28 14
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`14:01:32 15
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`14:01:36 16
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`14:01:39 17
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`14:01:45 20
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`14:01:49 21
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`14:01:52 22
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`14:01:54 23
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`14:01:54 24
`
`connection with this $1,050,000 gallons of fuel?
`
`A.
`
`NO.
`
`Q.
`
`Did they provide you wire instructions in
`
`connection with any down payment?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Rephrase again.
`
`Phoenix Energy?
`
`Yes.
`
`I believe so, yes.
`
`Phoenix Energy provided Organ Mountain
`
`Energy with wiring instructions?
`
`A.
`
`Yes.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Did you follow those?
`
`Yes.
`
`How much did you wire to Phoenix Energy?
`
`Again,
`
`I don't remember.
`
`It could have
`
`been —— it could have been related to other orders
`
`so I don't —— I don't remember.
`
`I think we wired at
`
`least a million dollars to Phoenix.
`
`Q.
`
`I'm asking what you know.
`
`What did you wire to Phoenix?
`
`A.
`
`At least a million dollars to Phoenix with
`
`regards to this order right here.
`
`Q.
`
`You said it could be with regard the other
`
`orders?
`
`A.
`
`Yes.
`
`
`
`
`
`In terms of the paper trail with Phoenix,
`Q.
`14:01:55 25
`
`
`Lexflas
`
`PLAINTIFF LUXEMBORG TRADING, LLC'S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION - PAGE 16
`
`

`

`
`Dennis J. Rogers, ||
`222
`
`:52:
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`12
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`:52
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`:16
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`:52:
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`19
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`:21
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`:52
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`:30
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`:52
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`:35
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`:52
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`:37
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`:52:
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`52
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`10
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`57
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`11
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`O3
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`12
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`05
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`:53:
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`O7
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`14
`
`discuss with them,
`
`I probably say I did or I did
`
`with Luxemborg at one point, but I can't pick a
`
`certain time off the top of my head.
`
`Q. We're sitting here today and my question
`
`is:
`
`You or your counsel expressing to Luxemborg or
`
`its counsel
`
`in writing,
`
`in writing before today that
`
`you considered paragraph 7 uncomplied with, do you
`
`have —— do you have any knowledge of that?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`I don't recall if I did or I didn't.
`
`What is your personal net worth?
`
`Close to 5
`
`to $7 million.
`
`Are these liquid assets?
`
`Some of them.
`
`What percentage of that is a liquid asset?
`
`
`
`
`
`:53:
`
`12
`
`15
`
`:53:
`
`15
`
`16
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`:53
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`:23
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`17
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`:53
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`:29
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`18
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`:53:
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`33
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`19
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`:53
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`:33
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`20
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`:53:
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`34
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`21
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`:53
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`:37
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`22
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`:53:
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`37
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`23
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`:53
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`:39
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`24
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`:53
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`:40
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`25
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`
`
`Q.
`
`A.
`
`2.3.
`
`Q. With respect to the $1 million—ish that
`
`you claim Organ Mountain extended to Phoenix, has
`
`Phoenix explained why it has not paid any portion of
`
`that back?
`
`A.
`
`Yes.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Has it paid a portion of it back?
`
`Yes.
`
`How much did it pay back?
`
`All of it.
`
`Q.
`
`You have gotten it all back at this point?
`
`Lexfias
`
`PLAINTIFF LUXEMBORG TRADING, LLC'S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION - PAGE 17
`
`

`

`223
`Dennis J. Rogers, ||
`
`14:53:
`
`42
`
`14:53
`
`:42
`
`14:53:
`
`44
`
`14:53:
`
`53
`
`14:53:
`
`56
`
`14:53:
`
`59
`
`14:54:
`
`Ol
`
`14:54:
`
`06
`
`14:54:
`
`11
`
`14:54:
`
`13
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`14:54:
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`18
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`14:54:
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`19
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`14:54
`
`:22
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`14:54
`
`:26
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`14:54:
`
`:29
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`14:54:
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`31
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`14:54:
`
`32
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`14:54:
`
`33
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`14:54:
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`33
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`14:54:
`
`37
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`
`
`14:54
`
`:40
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`21
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`14:54
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`:43
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`22
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`14:54
`
`:47
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`23
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`14:54:
`
`51
`
`24
`
`
`
`A.
`
`Yes.
`
`Q.
`
`A.
`
`When did that happen?
`
`You know,
`
`I can't recall a specific date.
`
`I would have to go back and look.
`
`Q. Would it have been after November 8th of
`
`2018 or before?
`
`A. After.
`
`Q.
`
`So in terms of every dollar that would
`
`have been extended on the part of Organ Mountain
`
`to —— on the one hand to ——
`
`A.
`
`Q.
`
`Phoenix.
`
`—— Phoenix on the other hand associated
`
`with the 1,050,000 dollars (sic)
`
`in fuel, you said
`
`every single dollar of that has been paid back to
`
`Organ Mountain by this point
`
`in time;
`
`is that right?
`
`A.
`
`Yes.
`
`Q.
`
`A.
`
`Did it go to Organ Mountain?
`
`Yes.
`
`Q.
`
`And then has it been earmarked or set
`
`aside in any way, shape or form?
`
`A.
`
`Q.
`
`Can you rephrase?
`
`Is there a way to segregate —— has this 1
`
`million plus dollars that came back from Phoenix
`
`been set aside or is it commingled with your other
`
`
`
`54
`25
`14:54:
`funds?
`
`
`Lexflas
`
`PLAINTIFF LUXEMBORG TRADING, LLC'S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION - PAGE 18
`
`

`

`
`Dennis J. Rogers, ||
`224
`
`1
`
`2
`
`MR. CHISUM: Objection;
`
`form.
`
`A.
`
`It is commingled in the funds of Organ
`
`3 Mountain.
`
`14:54:55
`
`14:54:55
`
`14:55:00
`
`14:55:00
`
`14:55:01
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`14:55:03
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`14:55:06
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`14:55:12
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`14:55:17
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`4
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`5
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`6
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`7
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`8
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`9
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`14:55:21 10
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`14:55:23 :1
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`14:55:25 12
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`14:55:28 13
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`14:55:31 14
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`14:55:32 :5
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`
`
`14:55:32 16
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`14:55:34 :7
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`14:55:38 18
`
`14:55:40 19
`
`14:55:46 20
`
`14:55:57 21
`
`14:56:00 22
`
`
`
`Q.
`
`A.
`
`Is it all still there?
`
`Yes.
`
`Q.
`
`And then with respect to personal
`
`distributions, between October 24th —— strike that.
`
`Between October 24, 2018, and the present
`
`day, has Organ Mountain made any distributions to
`
`you individually?
`
`A.
`
`Q.
`
`Time frame again?
`
`I'm sorry.
`
`Between October 24th of 2018 and the
`
`present, has Organ Mountain made distributions to
`
`you personally individually?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Yes.
`
`How much?
`
`I couldn't say.
`
`I'm not sure.
`
`Hundreds of thousands of dollars?
`
`No.
`
`Probably —— I would say the maximum
`
`is 100,000 during that time frame.
`
`Q.
`
`These accounts at Frost Bank, are they set
`
`up under the employer identification number of Organ
`
`
`
`14:56:06 23 Mountain or are they associated with your individual
`
`14:56:08 24
`
`social security number?
`
`14:56:08 25
`A.
`No,
`the IEN numbers.
`
`
`Lexflas
`
`PLAINTIFF LUXEMBORG TRADING, LLC'S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION - PAGE 19
`
`

`

`
`Dennis J. Rogers, ||
`225
`
`14:56:
`
`11
`
`14:56:
`
`13
`
`14:56:
`
`13
`
`14:56
`
`:23
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`14:56
`
`:25
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`14:56
`
`:27
`
`14:56
`
`:29
`
`14:56:
`
`32
`
`14:56:
`
`33
`
`14:56:
`
`3'7
`
`14:56:
`
`39
`
`14:56
`
`:40
`
`14:56
`
`:44
`
`14:56
`
`:46
`
`14:56
`
`:46
`
`14:56:
`
`52
`
`14:56:
`
`55
`
`14:56:
`
`56
`
`14:56:
`
`59
`
`14:57:
`
`03
`
`
`
`14:57:
`
`O7
`
`21
`
`14:57:
`
`O9
`
`22
`
`14:57:
`
`11
`
`23
`
`14:57:
`
`11
`
`24
`
`
`
`Q.
`
`What is your personal social number?
`
`MR. CHISUM: Objection;
`
`form.
`
`-9210.
`
`Do you know your account numbers at Frost?
`
`I don't off the top of my head.
`
`This would be in documentation that's
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`available in your ordinary course?
`
`A.
`
`Yes.
`
`Q.
`
`You can tell the jury that in terms of
`
`that Frost account you're the only signatory on it?
`
`A.
`
`Yes.
`
`Q.
`
`And so Organ Mountain doesn't have any
`
`kind of board or anything like that?
`
`A.
`
`No.
`
`Q.
`
`So this $1 million plus is as simple as a
`
`check written by yourself from Organ Mountain to
`
`yourself individually, isn't it?
`
`A.
`
`Q.
`
`Can you rephrase that again.
`
`This $1 million in terms of you personally
`
`having access to it, you could go right now to your
`
`desktop,
`
`in a key stoke you could put that
`
`$1 million in your personal checking account,
`
`couldn't you?
`
`A.
`
`Yes.
`
`
`
`11
`25
`14:57:
`There's no board of directors on the part
`Q.
`
`
`Lexflas
`
`PLAINTIFF LUXEMBORG TRADING, LLC'S
`FIRST AMENDED ORIGINAL PETITION, APPLICATION FOR TEMPORARY
`RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY INJUNCTION - PAGE 20
`
`

`

`226
`Dennis J. Rogers, ||
`
`14:57:
`
`14
`
`of Organ Mountain to clear anything through,
`
`is
`
`14:57:
`
`17
`
`there?
`
`14:57:
`
`17
`
`14:57:
`
`17
`
`14:57
`
`:23
`
`14:57
`
`:26
`
`14:57:
`
`3O
`
`14:57:
`
`31
`
`14:57:
`
`34
`
`14:57:
`
`38
`
`14:57
`
`:42
`
`14:57
`
`:43
`
`14:57
`
`:45
`
`14:57
`
`:48
`
`14:57
`
`:49
`
`14:57:
`
`53
`
`14:57:
`
`54
`
`14:57:
`
`57
`
`14:58:
`
`02
`
`14:58:
`
`03
`
`
`
`14:58:
`
`05
`
`21
`
`14:58:
`
`O7
`
`22
`
`14:58:
`
`11
`
`23
`
`14:58:
`
`14
`
`24
`
`
`
`A.
`
`No.
`
`Q.
`
`There's no controller or CFO or COO,
`
`treasurer or otherwise for you to clear that
`
`through. You could just go do a key entry on your
`
`computer and move the million dollars over?
`
`A.
`
`Yes.
`
`Q.
`
`You understand that that $1 million was
`
`paid by Luxemborg to you for diesel fuel?
`
`A.
`
`Yes.
`
`Q.
`
`That that diesel fuel was never —— not
`
`even a drop was delivered?
`
`A.
`
`Yes.
`
`Q.
`
`And you haven't returned one cent to
`
`Luxemborg?
`
`A.
`
`Correct.
`
`Q.
`
`You have made reference to damages
`
`repeatedly today.
`
`What are the business damages that you
`
`have been describing?
`
`A.
`
`Still kind of —— still trying to actually
`
`pull all of that together. But in terms of our
`
`account being frozen,
`
`just our reputation and
`
`
`
`25
`:20
`14:58
`everything else associated with this has definitely