in Re 8650 Frisco, LLC D/B/A Estilo Gaucho Brazilian Steakhouse, Mandona, LLC, Galovelho, LLC, Bahtche, LLC, Claudio Nunes and David Jeiel Rodrigues ( 2015 )

ACCEPTED
01-15-00423-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/6/2015 7:40:32 PM
CHRISTOPHER PRINE
CLERK
01-15-00423-CV
No. _____________________ FILED IN
st
1 COURT OF APPEALS
HOUSTON, TX
IN THE MAY 6, 2015
CHRISTOPHER A. PRINE,
CLERK
________ JUDICIAL DISTRICT COURT OF APPEALS
at HOUSTON, TEXAS
IN RE 8650 FRISCO, LLC d/b/a ESTILO GAUCHO BRAZILIAN
STEAKHOUSE, MANDONA, LLC, GALOVELHO, LLC, BAHTCHE, LLC,
CLAUDIO NUNES, and DAVID JEIEL RODRIGUES,
Relators
ORIGINAL PROCEEDING FROM THE 133rd JUDICIAL DISTRICT COURT
OF
HARRIS COUNTY, TEXAS
PETITION FOR WRIT OF MANDAMUS
MOSSER LAW PLLC
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
Paul J. Downey
Texas Bar No. 24080659
2805 Dallas Parkway, Suite 220
Plano, Texas 75093
Tel. (972) 733-3223
Fax (469) 626-1073
courtdocuments@mosserlaw.com
LAWYERS FOR RELATORS
RELATORS REQUEST ORAL ARGUMENT
RELATORS REQUEST TEMPORARY RELIEF
PETITION FOR WRIT OF MANDAMUS i
IDENTITY OF PARTIES & COUNSEL
The following is a complete list of the parties, the attorneys, and any other
person who has an interest in the outcome of this lawsuit:
Relators
8650 Frisco, LLC, d/b/a Estilo Gaucho Brazilian Steakhouse;
Mandona, LLC;
Galovelho, LLC;
Bahtche, LLC;
Claudio Nunes; and
David Jeiel Rodrigues
represented by:
MOSSER LAW PLLC
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
Paul J. Downey
Texas Bar No. 24080659
2805 Dallas Parkway, Suite 220
Plano, Texas 75093
Tel. (972) 733-3223
Fax (469) 626-1073
courtdocuments@mosserlaw.com
Respondent
Honorable Jaclanel McFarland
Judge Presiding
133rd Judicial District Court
Harris County Civil Courthouse
201 Caroline, 11th Floor
Houston, Texas 77002
Tel. 713-368-6200
Real Parties In Interest
Los Cucos Mexican Café VIII, Inc.;
PETITION FOR WRIT OF MANDAMUS ii
Los Cucos Mexican Café IV, Inc.;
Manuel Cabrera; and
Sergio Cabrera,
represented by
Stephens & Domnitz, PLLC
Kelly Stephens
Texas Bar No. 19158300
P.O Box 79734
Houston, Texas 77279-9734
Tel. 281-394-3287
Fax 832-476-5460
kstephens@stephensdominitz.com
Hawash, Meade, Gaston, Neese, & Cicack LLP
Andrew K. Meade
Texas Bar No. 24032854
Jeremy M. Masten
Texas Bar No. 24083454
Samuel B. Haren
Texas Bar No. 24059899
2118 Smith Street
Houston, Texas 77002
Tel. 713-658-3001
Fax. 713-658-9011
ameade@hmgnc.com
jmasten@hmgnc.com
sharen@hmgnc.com
Cox Smith Matthews Incorporated
David Kinder
Texas Bar No. 11432550
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205
Tel. 210-554-5500
Fax. 210-226-8395
dkinder@coxsmith.com
PETITION FOR WRIT OF MANDAMUS iii
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Los Cucos’ Fourth Amended Petition Nonsuits All Prior Claims on which
the July 28, 2014 Enforcement Order Is Based. . . . . . . . . . . . 8
This Voluntary Dismissal Is a Nonsuit. . . . . . . . . . . . . . . . . . . . . . . 10
This Nonsuit Also Disposes of 8650 Frisco,LLC’s
Derivative Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
This Nonsuit Disposed of the Trial Court’s
July 28, 2014 Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Counsel for Los Cucos Has Failed to Comply with the Discovery
Process; Therefore, Respondent Abused her Discretion in
ordering The Production of Documents
Or Discovery Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Respondent’s April Orders Constitute a Clear Abuse of Discretion
Because the Discovery Sought Was Served on the Requesting
Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
There Is No Adequate Remedy by Appeal for
These Abuses of Discretion. . . . . . . . . . . . . . . . . . . . . . . . . . 23
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
PETITION FOR WRIT OF MANDAMUS iv
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
APPENDIX AND RECORD.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
PETITION FOR WRIT OF MANDAMUS v
INDEX OF AUTHORITIES
CASES
Able Supply Co. v. Moye, 898 S.W.2d 766, 772 (Tex. 1995). . . . . . . . . . . 8
Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 806 (Tex. 1993). . . 13,
15
Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991). . . . 8,
17
B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex.App.–Houston
[1st Dist] 2009, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Bair v. Hagans, 838 S.W.2d 677, 681 (Tex.App.–Houston [1st Dist] 1992,
writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990). . 12,
13
C/S Solutions, Inc. v. Energy Maintenance Svcs. Grp. LLC. 274 S.W.3d
299, 306 (Tex.App.–Houston [1st Dist] 2008, no pet.). . . . . . . . . . . . . . . . 11
City of Dallas v. Albert, 354 S.W.3d 368, 375 (Tex. 2011). . . . . . . . . . . . 11
Dolenz v. All Saints Episcopal Hosp. 638 S.W.2d 141, 142 (Tex.App.–Fort
Worth 1982, writ ref’d n.r.e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Epps v. Fowler, 351 S.W.3d 862, 868 (Tex. 2011). . . . . . . . . . . . . . . . . . 10
FKM Prtshp. v. Board of Regents of the Univ. of Houston Sys. 255 S.W.3d
619, 633 (Tex. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
In re BDPJ Houston, LLC, 420 S.W.3d 309 (Tex.App–Houston [14th Dist.]
2013)(original proceeding). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-22
In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). . . . . . . . . . . . . . 20, 23
PETITION FOR WRIT OF MANDAMUS vi
In re Estate of Kidd, 812 S.W.2d 356, 359 (Tex.App.–Amarillo 1991, writ
denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
In re Prudential, 148 S.W.3d 124, 135-36 (Tex. 2004). . . . . . . . . . . . . . . . 7
In re Team Rocket, L.P. 256 S.W.3d 257, 259 (Tex. 2008) (original
proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
Randolph v. Jackson Walker, L.L.P. 29 S.W.3d 271, 274-275
(Tex.App.–Houston [14th Dist.] 2000, pet. denied).. . . . . . . . . . . . . . . . . . 10
UTMB v. Estate of Blackmon, 195 S.W.3d 98, 101 (Tex. 2006). . . . . . . . 12
Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008). . . . . . . . . . . . . . 13, 14
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). . . . . . . . . . . . 7, 8, 17
RULES
TEX. R. CIV. P. 021a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19
TEX. R. CIV. P. 063. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
TEX. R. CIV. P. 065. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
TEX. R. CIV. P. 096. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
TEX. R. CIV. P. 162. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
TEX. R. CIV. P. 192.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
TEX. R. CIV. P. 192.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
TEX. R. CIV. P. 215.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
PETITION FOR WRIT OF MANDAMUS vii
STATEMENT OF THE CASE
1. This petition for writ of mandamus is taken from breach of contract
suit in which the Real Parties in Interest allege that the Relators have
breached a settlement agreement that ended a prior lawsuit. The
Real Party in Interest seeks judgment for actual damages totaling
$900,000, the cost of Relator’s alleged breach.
2. Respondent in this case is the Honorable Jaclanel McFarland, who
presides over the 133rd Judicial District Court located in Harris
County at the Harris County Civil Courthouse, 201 Caroline, 11th
Floor, Houston, Texas 77002.
3. Relators seek relief from Respondent’s April 1, 2015 Order
mandating the production of certain discovery to which the Real
Parties in Interest were not entitled.
4. Additionally, Relators seek relief from Respondent’s April 27, 2015
Order barring Relators from conducting discovery related to
defending against the breach of contract claim; granting $1,000.00 in
attorneys fees to the Real Parties in Interest for costs incurred in
securing production of the documents; and deeming conclusively
established the issue of irreparable harm to Real Parties in Interest
PETITION FOR WRIT OF MANDAMUS viii
from the lack of a signed note and security interest.
PETITION FOR WRIT OF MANDAMUS ix
STATEMENT OF JURISDICTION
This Court has jurisdiction to issue a writ of mandamus. TEX. GOVT.
CODE § 22.221(b)(1). That section permits this Court to issue a writ of
mandamus against a judge of a district court in the court of appeals district.
Harris County is within the First and Fourteenth Court of Appeals Districts.
TEX. GOVT. CODE § 22.201(b), (o). The 133rd Judicial District Court is
seated in Harris County. TEX. GOVT. CODE § 24.235. Thus, the 133rd
Judicial District Court is within these Courts’ Appeals Districts. See id; see
also TEX. GOVT. CODE § 22.201(b), (o).
PETITION FOR WRIT OF MANDAMUS x
ISSUES PRESENTED
The issues presented in this petition are:
1. Whether the most recent amendment to Real Parties’ in Interest
Petition acts to affirmatively non-suit the claims from the original
lawsuit, the answer is Yes.
2. Whether the nonsuit renders Respondent’s July 28, 2014 discovery
order a nullity, the answer is Yes.
3. Whether Real Parties in Interest failed to follow the proper discovery
procedures before filing its improperly titled Second Motion to
Enforce the Court’s Order and for Sanctions the answer is Yes.
4. Whether the April 1, 2014 order and the April 27, 2014 order compel
the production of discovery that is patently irrelevant, the answer is
Yes.
5. Whether the April 1, 2014 and April 27, 2014 constitute an abuse of
discretion, the answer is Yes.
6. Whether there is an adequate remedy by appeal for this abuse of
discretion, the answer is No.
PETITION FOR WRIT OF MANDAMUS xi
STATEMENT OF FACTS
1. On March 12, 2014, Real Parties in Interest (hereinafter “Los Cucos”)
filed their original petition relating to a business startup, alleging
breach of contract, conversion, fraud, fraudulent inducement, civil
conspiracy, alter ego, unjust enrichment, quantum merit, all base on
an oral contract, and requesting an accounting, all of which stemmed
from the business operated by the Relators (hereinafter “8650 Frisco,
LLC”). App. at 15-25.
2. Then, one month later, Los Cucos served 8650 Frisco, LLC, with its
first set of discovery requests. App. at 26-37, 8650 Frisco, LLC, filed
its original answer this same day. App. at 38-41. 8650 Frisco, LLC,
objected to Los Cucos’ discovery requests which eventually became
the subject of an order compelling production of documents issued
by the Respondent on July 28, 2014. App. at 93-94. Respondent’s
order called for the documents to be “produced at [Attorney in
Charge for Los Cucos Office] by August 1, 2014 at 5:00 P.M. in
accordance with Los Cucos’ Counsel’s request that he be served
electronically so he “can get ready for depositions” scheduled for
August 4, 2014. Compare App. at 70 with App. at 94. 8650 Frisco,
PETITION FOR WRIT OF MANDAMUS 1
LLC complied with this order by serving Los Cucos with the
compelled discovery at 4:47PM on Friday, August 1, 2014 via the E-
File Texas filing and service portal. App. at 335-36.
3. On Monday, August 4, 2014, the parties met in Houston at Los
Cucos’ attorney’s office for depositions, which had been ordered and
scheduled that day by the court. App. at 86; 106. Depositions began
as ordered, and continued throughout the day and were adjourned,
the next day, August 5, 2014, the parties sua sponte opened
settlement discussions and reached a settlement agreement which
was then dictated to the court reporter and agreed to, with all counsel
and clients present. The agreement was subsequently filed with the
court. App. at 95-99. These negotiations were conducted and this
agreement was reached without the attorney in charge, Counsel for
Los Cucos ever having opened the e-mail he received which
contained the discovery materials ordered produced by the
Respondent on July 28, 2014. App. at 335-36; App. at 339.
4. Between August 4, 2014, and January 21, 2015, disagreements
arose between the parties over the form of the “standard bank type
document” which prevented the parties from jointly executing the
PETITION FOR WRIT OF MANDAMUS 2
same documents. App. at 107-08. Despite this, 8650 Frisco, LLC
signed a note and has made all payments to Los Cucos as agreed.
App. at 107. 8650 Frisco, LLC is presently current on the monthly
payments. App. at 107.
5. On January 21, 2015, Los Cucos amended its live pleading a fourth
time, the last time. App. at 100-110. This pleading contains a singular
cause of action alleging a breach of the agreement struck by the
litigants on August 4, 2014, that was filed with the court. App. at 108.
The claims alleging a breach of the agreement that created the
restaurant, conversion, fraud, fraudulent inducement, civil
conspiracy, alter ego, unjust enrichment, quantum merit and
requesting an accounting are no longer present in the fourth
amended pleading. Compare App. at 20-22 with App. at 108. Los
Cucos has not made any discovery requests in connection with the
claim contained in this latest pleading. App. at 440.
6. Instead, on February 20, 2015, Los Cucos filed a Motion to Compel
discovery of the documents which were the subject of the
Respondent’s July 28, 2014 order with the Respondent and which
8650 Frisco, LLC had properly served responses pursuant to Tex. R.
PETITION FOR WRIT OF MANDAMUS 3
Civ. P. 21 and 21a, on Los Cucos. App. at 111-328. 8650 Frisco,
LLC objected to the court’s order to the re-production of the these
same previously produced documents in its response to Los Cucos’
motion. App. at 329-36. 8650 Frisco, LLC supplemented its response
after receiving a letter from Counsel for Los Cucos, which
acknowledged the production via E-File, but contended that because
the email, receipt was not opened by Counsel for Los Cucos before
5:00PM on August 1, 2014, 8650 Frisco, LLC had failed to comply
with the court’s order compelling production. App. at. 337-341. Even
though the eservice transmission shows that it was sent at 4:47pm.
Los Cucos set this motion for hearing which took place on March 30,
2015, at which time the judge granted the motion to compel the
production of the previously produced documents and ordered them
to be produced again in the July 28, 2014 order by no later than
5:00PM on April 1, 2015. App. at 1.
7. 8650 Frisco, LLC made several attempts to serve these documents
on Counsel for Los Cucos. App. at 342-59. Of the three firms
representing Los Cucos, only Mr. Kinder successfully received
copies of the documents via facsimile. App. at 342. In spite of this
PETITION FOR WRIT OF MANDAMUS 4
service, Counsel for Los Cucos maintained that 8650 Frisco, LLC
had failed to comply with the court’s order by not serving enough
responsive documents. App. at 360. Los Cucos filed a Third Motion
to Enforce the Court’s Order and for Sanctions. App. at 360-429.
Again, 8650 Frisco, LLC responded to the Motion to Enforce. App. at
430-38. The Court held a hearing on this matter on April 27, 2015,
and without evidence, granted ex parte, the relief requested by Los
Cucos, specifically:
a. That 8650 Frisco, LLC is barred from further discovery until a
representative signs a sworn affidavit of compliance with this
order;
b. that 8650 Frisco, LLC shall pay $1000.00 to Los Cucos for their
costs incurred in securing production of the Documents, and;
c. That the issue of whether Plaintiff’s face irreparable harm from
the lack of the note and security required by the parties’
contract is conclusively established in [Los Cucos’] favor. App.
at 2-3.
8. This original proceeding follows.
ARGUMENT
PETITION FOR WRIT OF MANDAMUS 5
9. Respondent’s conduct in this case merits the relief of a writ of
mandamus because Respondent has decided without any basis in
law or fact that Los Cucos is entitled to certain discovery despite Los
Cucos’ voluntary nonsuit of the claims to which that discovery is
related.
10. Additionally, the Respondent has allowed Los Cucos to rely on an
order that does not survive nonsuit to make demands for discovery
entirely outside the traditional discovery process with respect to a
wholly original claim. Finally, Respondent’s conduct in foreclosing
8650 Frisco, LLC’s discovery right, and conclusively establishing an
unplead element of a claim other than breach of contract severely
impairs 8650 Frisco, LLC’s ability to present a viable claim or
defense to the suit.
Standard of Review
11. A relator is entitled to the extraordinary writ of mandamus if the trial
court clearly abused its discretion and the relator has no adequate
remedy by appeal. In re Team Rocket, L.P. 256 S.W.3d 257, 259
(Tex. 2008) (original proceeding). A trial court abuses its discretion if
it acts in an unreasonable or arbitrary manner without reference to
PETITION FOR WRIT OF MANDAMUS 6
guiding rules and principles. Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992). A trial court has no “discretion” in determining what the
law is or applying the law to the facts. Id. at 840. Thus, a clear failure
by the trial court to analyze or apply the law correctly will constitute
an abuse of discretion, and may result in appellate reversal by
extraordinary writ. Id.
12. Additionally, the relator must have no adequate remedy by appeal. In
re Prudential, 148 S.W.3d 124, 135-36 (Tex. 2004). Determining
whether an appellate remedy is adequate involves balancing
“practical and prudential” considerations, such as the inevitability of
reversal and the waste of judicial resources on a proceedings. In re
Team Rocket, L.P. 256 S.W.3d at 262. An appellate remedy is
inadequate “where a discovery order compels the production of
patently irrelevant or duplicative documents, such that it clearly
constitutes harassment or imposes a burden on the producing party
far out of proportion to any benefit that may obtain to the requesting
party.” See Walker v. Packer, 827 S.W.2d at 843. Further,
mandamus will issue where a party’s ability to present a viable claim
or defense at trial is vitiated or severely compromised by the trial
PETITION FOR WRIT OF MANDAMUS 7
court’s discovery error. Able Supply Co. v. Moye, 898 S.W.2d 766,
772 (Tex. 1995).
13. Finally, a writ of mandamus will issue to compel the performance of a
ministerial act or duty. Walker v. Packer, 827 S.W.2d at 839. An act
is ministerial when the law clearly spells out a duty to be performed
by a public official with such certainty that nothing is left to the
official’s discretion. Anderson v. City of Seven Points, 806 S.W.2d
791, 793 (Tex. 1991).
14. Here, the Respondent’s reliance on an order that does not survive
nonsuit as grounds for a subsequent motion to enforce;
Respondent’s command to produce documents irrelevant to the lone
claim presented by Los Cucos; and Respondent’s sanctions barring
discovery by 8650 Frisco, LLC and conclusively establishing a claim
that remains not pleaded by Los Cucos all constitute reversible error
with no adequate remedy by appeal, for which a writ of mandamus is
the only corrective action.
LOS CUCOS’ FOURTH AMENDED PETITION NONSUITS ALL PRIOR CLAIMS ON
WHICH THE JULY 28, 2014 ENFORCEMENT ORDER IS BASED
15. Pleadings may be amended at any time prior to trial, so long as the
amendment does not operate as a surprise to the opposite party.
PETITION FOR WRIT OF MANDAMUS 8
TEX. R. CIV. P. 63. Unless the substituted instrument shall be set
aside on exceptions, the instrument for which it is substituted shall no
longer be regarded as a part of the pleading in the record of the
cause. TEX. R. CIV. P. 65. As the Supreme Court of Texas has
stated, “Amended pleadings and their contents take the place of prior
pleadings. So causes of action not contained in amended pleadings
are effectively dismissed at the time the amended pleading is filed.”
FKM Prtshp. v. Board of Regents of the Univ. of Houston Sys. 255
S.W.3d 619, 633 (Tex. 2008) (emphasis added).
16. As previously stated, Los Cucos’ original petition contained claims
alleging breach of the agreement that created the restaurant,
conversion, fraud, fraudulent inducement, civil conspiracy, alter ego,
unjust enrichment, quantum merit and requesting an accounting.
App. at 20-22. The Fourth Amended Petition contains a lone claim for
breach of contract relating exclusively to the settlement created and
agreed to on August 4, 2015. App. at 108. Hence, by operation of
law, Los Cucos voluntarily dismissed all prior claims when it filed its
Fourth Amended Petition on January 21, 2015. See TEX. R. CIV. P.
65; see also FKM Prtshp. v. Board of Regents of the Univ. of
PETITION FOR WRIT OF MANDAMUS 9
Houston Sys. 255 S.W.3d at 633.
THIS VOLUNTARY DISMISSAL IS A NONSUIT
17. Because an amended pleading supersedes and supplants all
previous pleadings, an amendment of the pleading can work as a
nonsuit of parties and claims. See Randolph v. Jackson Walker,
L.L.P. 29 S.W.3d 271, 274-275 (Tex.App.–Houston [14th Dist.] 2000,
pet. denied.) (“Therefore on appeal, the doctor could not complain of
the trial court’s action upon his original plea for injunction because
that cause of action was abandoned when he went to trial on his third
amended petition.”)(citing Dolenz v. All Saints Episcopal Hosp. 638
S.W.2d 141, 142 (Tex.App.–Fort Worth 1982, writ ref’d n.r.e)).
Omitting a claim from an amended petition indicates an intent to
nonsuit that claim. Dolenz v. All Saints Episcopal Hosp. 638 S.W.2d
141, 142 (Tex.App.–Fort Worth 1982, writ ref’d n.r.e). A written order
of nonsuit is not required. TEX. R. CIV. P. 162; Epps v. Fowler, 351
S.W.3d 862, 868 (Tex. 2011). Thus, Los Cucos’ dismissal of claims
via amendment is a nonsuit of those claims, and even Counsel for
Los Cucos admits as much. See Randolph v. Jackson Walker, L.L.P.
29 S.W.3d at 274-275; See also App. at 114-15. (“That motion to
PETITION FOR WRIT OF MANDAMUS 10
transfer was filed before the settlement agreement was made and
only addresses claims which are no longer asserted in this action”).
(emphasis added). The nonsuit necessarily affects orders entered in
this case pursuant to the non-suited claims, specifically the July 28,
2014 order.
THIS NONSUIT ALSO DISPOSES OF 8650 FRISCO, LLC’S DERIVATIVE CLAIMS
18. Because Los Cucos has taken a nonsuit of all claims made prior to
January 21, 2015, 8650 Frisco, LLC’s derivative claim, its request for
declaratory judgment, is mooted. When a nonsuit is taken, the
dismissal does not prevent the defendant from being heard on its
own claims for affirmative relief. TEX. R. CIV. P. 96; 162; City of
Dallas v. Albert, 354 S.W.3d 368, 375 (Tex. 2011). The distinction
between a true Rule 162 nonsuit and a voluntary dismissal under
Rule 63 has no practical effect when a plaintiff files a written “nonsuit”
that abandons the case as to certain claims so long as the written
“nonsuit” does not run afoul of the time restrictions in Rule 63. C/S
Solutions, Inc. v. Energy Maintenance Svcs. Grp. LLC. 274 S.W.3d
299, 306 (Tex.App.–Houston [1st Dist] 2008, no pet.). For a claim to
qualify as a claim for affirmative relief under TEX. R. CIV. P. 162, it
PETITION FOR WRIT OF MANDAMUS 11
must allege the defendant has a cause of action on which it can
recover independent of the plaintiff’s claims, even if the plaintiff
abandons or is unable to establish its claims. UTMB v. Estate of
Blackmon, 195 S.W.3d 98, 101 (Tex. 2006).
19. A claim that mirrors the controlling issues in a case is not an
independent claim for affirmative relief. In re Estate of Kidd, 812
S.W.2d 356, 359 (Tex.App.–Amarillo 1991, writ denied). A
declaratory judgment that denies the existence of a contract filed in
response to a breach of contract claim is not an independent claim
for affirmative relief. BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d
838, 841 (Tex. 1990)(citing Newman Oil Co. v. Alkek, 614 S.W.2d
653 (Tex.Civ.App.–Corpus Christi 1981, writ refused n.r.e.)(“We hold
that the above allegations pled in defendants’ counterclaim are not
any averments of fact upon which affirmative relief could be granted.
They are merely denials of plaintiff’s cause of action.”).
20. In this case, 8650 Frisco, LLC has filed a declaratory judgment action
seeking a declaration that no contract exists between the parties, a
fact which Los Cucos would have had to prove as part of its breach
of contract claim. App. at 39-40. The nonsuit of Los Cucos’ original
PETITION FOR WRIT OF MANDAMUS 12
breach of contract claim thus disposes of 8650 Frisco, LLC’s action
seeking declaratory judgment. See BHP Petroleum Co. Inc. v.
Millard, 800 S.W.2d at 841.
THIS NONSUIT DISPOSED OF THE TRIAL COURT’S JULY 28, 2014 ORDER
21. Whether the July 28, 2014 order survives nonsuit depends on the
nature of the order. One unique effect of a nonsuit is that it can
vitiate certain interlocutory orders, rendering them moot and
unappealable. Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008)
(Emphasis added). Sanctions orders may survive nonsuit,
depending on the purpose of the sanction. Aetna Cas. & Sur. Co. v.
Specia, 849 S.W.2d 805, 806 (Tex. 1993). If a sanction is aimed at
insuring a party is afforded a fair trial and not subjected to trial by
ambush, the reason for imposing the sanction no longer exists after a
party takes a nonsuit. Id. at 806-07. Conceivably, an order
compelling discovery, like Respondent’s July 28, 2014 order, could
be considered a sanction, as it is available to the moving party under
TEX. R. CIV. P. 215.1. This court, however, has held that “an order
to compel is not a lesser sanction under rule 215.[2(b)].” Bair v.
Hagans, 838 S.W.2d 677, 681 (Tex.App.–Houston [1st Dist] 1992,
PETITION FOR WRIT OF MANDAMUS 13
writ denied). Because the July 28, 2014 order is not a lesser
sanction, it is a simple interlocutory order that was extinguished the
moment Los Cucos nonsuited the claims from which the discovery
and the order itself emanated. See Villafani v. Trejo, 251 S.W.3d at
469; Id.
22. If the court is of a mind that the order to compel constitutes a
sanction, then the purpose of the order, to compel the production of
documents needed for depositions, ceased to exist the moment the
parties entered into the settlement agreement, or when they were
eserved. App. at 97-98. This concept is underscored by the fact that
Counsel for Los Cucos made a special point of stating his specific
need for the documents during a hearing, then subsequently entered
into a settlement agreement without ever having viewed the
documents. See App. at 70, 97-98, 335, 339-40. Neither did he
complain of any failure to produce the documents or of their
substance during the deposition or the subsequent settlement
negotiations1, waiting only until he amended Los Cucos’ suit to
1
TEX. R. CIV. P. 8 states “All communications from the court or to other counsel
with respect to a suit shall be sent to the attorney in charge.” The rule further defines
counsel in charge as “the attorney whose signature appears on the initial
pleadings...unless another attorney is specifically designated therein.” Kelly Stephens is
PETITION FOR WRIT OF MANDAMUS 14
complain of breach of contract and a lack of documents. App. at 97-
98, 100-110, 113-115. Thus, the purpose for any sanction ceased to
exist by the conclusion of the settlement agreement and that purpose
was fully extinguished at the moment of nonsuit. See Aetna Cas. &
Sur. Co. v. Specia, 849 S.W.2d at 806.
23. Consequently, the July 28, 2014 order does not survive the nonsuit.
See id.
COUNSEL FOR LOS CUCOS HAS FAILED TO COMPLY WITH THE DISCOVERY
PROCESS; THEREFORE, RESPONDENT ABUSED HER DISCRETION IN ORDERING
THE PRODUCTION OF DOCUMENTS OR DISCOVERY SANCTIONS.
24. As of May 3, 2015, Counsel for Los Cucos has not made any
requests for production relating to the lone breach of contract claim
relating to the settlement agreement asserted in its Fourth Amended
Petition. Counsel instead relies exclusively on the July 28, 2014 order
as the vehicle by which it claims to be entitled to discovery. App. at
110-16, 360-63. Texas Rule of Civil Procedure 215.1(b) states:
“If a party fails to respond that discovery will be permitted
as requested or fails to permit discovery as requested in
response to a request for inspection submitted under Rule
196, the discovering party may move for an order
compelling...inspection or production in accordance with
the attorney in charge, but Andrew Meade handled the deposition of Claudio Nunes on
August 4, 2014.
PETITION FOR WRIT OF MANDAMUS 15
the request or may apply to the court in which the action is
pending for the imposition of any sanction in which the
action is pending for the imposition of any sanction
authorized by Rule 215.2(b)...”
TEX. R. CIV. P. 215.1(b)(3)(D)
25. By its own terms, the rule contemplates that the requesting party
must at least request discovery from the party from whom discovery
is sought before the court can even hear a motion to compel
discovery. See TEX. R. CIV. P. 215.1(b)(3)(D). As the Texas Rules
of Civil Procedure make clear, a request for production must be
made in writing. TEX. R. CIV. P. 192.7(a).
26. Because the July 28, 2014 order is moot for the reasons listed
above, Los Cucos failed to make a showing that it ever propounded
requests for production related to its Sole Breach of Contract claim.
App. at 110-116, 360-63. Thus, Los Cucos has failed to meet a
necessary prerequisite to a motion to compel or a motion for
sanctions. See TEX. R. CIV. P. 215.1(b)(3)(D). Because the court
had no evidence before it that Los Cucos had ever propounded a
discovery request based upon the live pleading to 8650 Frisco, LLC,
the court had no discretion to grant the Second and Third Motions to
Compel, rendering denial a ministerial act in which the law clearly
PETITION FOR WRIT OF MANDAMUS 16
spells out a duty to be performed by the Respondent with such
certainty that nothing is left to the Respondent’s discretion. See
Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991).
At the very least, this constitutes a clear abuse of discretion, because
a trial court has no “discretion” in determining what the law is or
applying the law to the facts. Walker v. Packer, 827 S.W.2d at 840.
RESPONDENT’S APRIL ORDERS CONSTITUTE A CLEAR ABUSE OF DISCRETION
BECAUSE THE DISCOVERY SOUGHT WAS SERVED ON THE REQUESTING PARTY
27. TEX. R. CIV. P. 215.1 also requires a showing that the party on
whom discovery was served must fail to respond, that discovery will
be permitted as requested or fail to permit discovery as requested in
response to a request...submitted under Rule 196. TEX. R. CIV. P.
215.1(b)(3)(D) (emphasis added). If this court finds that the Court’s
July 28, 2014 order survives nonsuit and that Los Cucos properly
noticed 8650 Frisco, LLC, the court should conclude nonetheless that
the Court’s April Orders constitute an abuse of discretion, as Los
Cucos did not make a viable showing that 8650 Frisco, LLC failed to
comply with the discovery rules or the Court’s July 28, 2014 order.
28. As stated previously, the July 28, 2014 Order required that 8650
Frisco, LLC, comply with Respondent’s Order by serving the
PETITION FOR WRIT OF MANDAMUS 17
requested documents electronically “in Plaintiff’s Office no later than
5:00 PM on August 1, 2014.” App. at 94. 8650 Frisco, LLC complied
with this order by serving Los Cucos with the compelled discovery at
4:47PM on Friday, August 1, 2014 via the E-File Texas filing and
service portal. App. at 335-36. Electronic Service, a method which
undoubtedly includes the E-File Texas filing and service portal, is
complete on transmission of the document to the serving party’s
electronic filing service provider. TEX. R. CIV. P. 21a(b)(3). The
electronic filing manager will send confirmation of service to the
serving party. Id. Thus, by operation of the Texas Rules of Civil
Procedure, 8650 Frisco, LLC complied with the court’s order. See id.
29. In choosing to maintain its Second Motion to Enforce, Counsel for
Los Cucos stated that:
“Your exhibit shows that the documents were not sent to
your e-service until 4:46 p.m. My email shows that the
same were not forwarded to me until 5:47 p.m. Even
then, it was not the documents that were delivered by a
notice that they had been placed in the e-service and
could be downloaded. Thus, your delivery was not, as
ordered, by 5:00 p.m. and as you know, I did not receive
the documents.” App. at 339.
Despite the clear directive to the contrary contained in TEX. R. CIV.
P. 21a(b)(3), and its counsel’s acknowledgment that he received the
PETITION FOR WRIT OF MANDAMUS 18
e-file link, Los Cucos represented to the court that it was never
served the documents which were the subject of the July 28, 2014,
order. App. at 360.
30. This argument cannot stand as it places the control over the service
of documents in the hands of the party requesting the documents,
who may freely create a violation of an order to produce by ignoring
its e-mail. Additionally, this argument ignores TEX. R. CIV. P. 21a
which states “Electronic service is complete on transmission of the
document to the serving party’s electronic filing service provider.”
Because the Court ordered electronic service in accordance with Los
Cucos’ requests, it bound itself to follow the Texas Rules of Civil
Procedure and thus had no discretion to rule that there was no
service. See App. at 94. Consequently, Respondent abused its
discretion in ordering the production of documents in the April 1,
2015 order when they had already been produced, in finding that the
documents had never been produced in the April 27, 2015 order, and
in sanctioning 8650 Frisco, LLC. See TEX. R. CIV. P. 21a(b)(3).
THE REQUESTED DISCOVERY IS NOT RELEVANT TO LOS CUCOS SOLE CLAIM
FOR RELIEF
31. Generally, the scope of discovery is within the trial court’s discretion.
PETITION FOR WRIT OF MANDAMUS 19
In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003)(citing Dillard
Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995)).
However, the trial court must make an effort to impose reasonable
discovery limits. Id. (citing In re American Optical, 988 S.W.2d 711,
713 (Tex. 1998). The trial court abuses its discretion by ordering
discovery that exceeds that permitted by the rules of procedure. Id.
(citing Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995).
32. Usually, the scope of discovery includes any unprivileged information
that is relevant to the subject of the action, even if it would be
inadmissible at trial, so long as the information is reasonably
calculated to lead to the discovery of admissible evidence. In re
BDPJ Houston, LLC, 420 S.W.3d 309 (Tex.App–Houston [14th Dist.]
2013)(original proceeding)(citing TEX. R. CIV. P. 192.3(a))(emphasis
added). Information is relevant if it tends to make the existence of
any fact that is of consequence to the determination of the action or
defense more or less probable than it would be without such
information. Id. (citing TEX. R. EVID. 401)(emphasis added).
33. Los Cucos’ sole claim for relief states, “The defendants have
breached the Rule 11 agreement by failing to execute the formal
PETITION FOR WRIT OF MANDAMUS 20
settlement agreement, the promissory note, and the appropriate
security documents as set forth in the Rule 11 agreement.” App. at
108. Nothing in the Second Motion to Enforce filed on February 20,
2015 relates at all to whether there has been a breach of the
settlement agreement, because all of this requested discovery
relates to causes of action that Los Cucos has since nonsuited. App.
at 15-37,114. The requested discovery does not tend to “make the
existence of any fact of consequence” to the breach of the Rule 11
Agreement “more or less probable.” See In re BDPJ Houston, LLC,
420 S.W.3d at 309.
34. Furthermore, the issue of whether the Real Parties in Interest face
“irreparable harm from the lack of the note/security (sic) required by
the parties’ contract” is not an element of a breach of contract suit,
and thus is not relevant to this suit.
35. The essential elements of a breach of contract claim are (1) the
existence of a valid contract, (2) performance or tendered
performance by the plaintiff; (3) breach of the contract by the
defendant; and (4) damages sustained as a result of the breach. B &
W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex.App.–Houston
PETITION FOR WRIT OF MANDAMUS 21
[1st Dist] 2009, pet. denied).
36. Los Cucos’ claim that “Plaintiffs require information from the
Financial Documents to assess Defendant’s compliance with their
settlement obligations” simply does not relate to any of the elements
of a breach of contract suit, and thus discovery on this basis is not
reasonably calculated to lead to any admissible evidence that tend to
prove or disprove any facts of consequence. Compare App. at 114
with id.; In re BDPJ Houston, LLC, 420 S.W.3d at 309.
37. Finally, Los Cucos’ claim that “Information concerning Plaintiff’s prior
claims is relevant to respond to Defendants’ frivolous motion to
transfer arguments” is without merit, and even Respondent thought
as much, as she denied the motion to transfer prior to ever hearing
Los Cucos’ Second Motion to Enforce the Court’s Order. Compare
App. at 1 with App. at 439. In so ruling, Respondent found the
documents the subject of her July 28, 2014 order had no bearing on
the motion to transfer venue then currently before the court,
underscoring the patent irrelevance of the documents to which Los
Cucos believes it is entitled. See In re BDPJ Houston, LLC, 420
S.W.3d at 309; TEX. R. CIV. P 192.3(a).
PETITION FOR WRIT OF MANDAMUS 22
THERE IS NO ADEQUATE REMEDY BY APPEAL FOR THESE ABUSES OF
DISCRETION
38. The Supreme Court of Texas has held that “where a discovery order
compels production of ‘patently irrelevant or duplicative documents’...
there is no adequate remedy by appeal because the order ‘imposes a
burden on the producing party far out of proportion to any benefit that
may obtain to the requesting party.” In re CSX Corp. 124 S.W.3d
149, 153 (Tex. 2003)(citing Walker v. Packer, 827 S.W.2d 833, 843
(Tex. 1992)).
39. The documents in question are patently irrelevant to the breach of
contract claim contained in Los Cucos’ live pleading, its Fourth
Amended Petition. Compare App. at 26-37, 93 with App. at 108; See
Id.
40. Additionally, because 8650 Frisco, LLC, has already tendered service
of these documents to the Attorney in Charge for Los Cucos,
ordering that these documents be tendered again is unnecessarily
duplicative. See In re CSX Corp. 124 S.W.3d 149, 153 (Tex. 2003).
41. Respondent’s April Orders impose “a burden on the producing party
far out of proportion to any benefit that may obtain to the requesting
party” such that there simply is no adequate remedy on appeal. See
PETITION FOR WRIT OF MANDAMUS 23
Id.
42. For these reasons, a writ of mandamus should issue, requiring
Respondent to vacate her April 1, 2015 Order Compelling Production
of Documents and her April 27, 2015 Order Compelling Production of
Documents and imposing sanctions on 8650 Frisco, LLC. See id;
TEX. R. CIV. P. 215.1(b)(3)(D); see also App. at 1; 2-3.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Relators pray that this court
find that Respondent abused her discretion in compelling production of the
documents requested by the Real Parties in Interest and imposing
sanctions on the Relators, find that there is no adequate remedy by
appeal, and issue a writ of mandamus compelling Respondent to vacate
her April 1, 2015 order compelling discovery, and her April 27, 2015 order
compelling discovery and imposing sanctions.
Respectfully Submitted, MOSSER LAW PLLC
s/ James C. Mosser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
Paul J. Downey
Texas Bar No. 24080659
PETITION FOR WRIT OF MANDAMUS 24
Mosser Law, PLLC
2805 Dallas Parkway Suite 222
Plano, Texas 75093
Telephone 972-733-3223
Facsimile 469-626-1073
courtdocuments@mosserlaw.com
LAWYERS FOR DEFENDANTS 8650 FRISCO, LLC, D/B/A 8650 FRISCO,
LLC BRAZILIAN STEAKHOUSE; MANDONA, LLC; GALOVELHO, LLC; BAHTCHE,
LLC; CLAUDIO NUNES; AND DAVID JEIEL RODRIGUES
CERTIFICATION
I certify that I have reviewed the petition and conclude that every factual
statement in the petition is supported by competent evidence included in
the attached appendix or record and I certify that the documents attached
in the appendix are true and correct copies of the originals.
/s/ Paul J. Downey
Paul J. Downey
CERTIFICATE OF COMPLIANCE
I certify that there are 4907 words in this document, and that I relied on the
word count function of WordPerfect X6, which was used to prepare this
document.
/s/ Paul J. Downey
Paul J. Downey
CERTIFICATE OF SERVICE
I certify that on May 6, 2015, this document was served on the following
parties or counsel of records in accordance with Texas Rule of Appellate
Procedure 9.5:
Respondent
Honorable Jaclanel McFarland
Judge Presiding
PETITION FOR WRIT OF MANDAMUS 25
133rd Judicial District Court
Harris County Civil Courthouse
201 Caroline, 11th Floor
Houston, Texas 77002
Tel. 713-368-6200
Real Parties In Interest
Los Cucos Mexican Café VIII, Inc.; Los Cucos Mexican Café IV, Inc.; Manuel
Cabrera, and Sergio Cabrera,
represented by
Kelly Stephens
Texas Bar No. 19158300
P.O Box 79734
Houston, Texas 77279-9734
Tel. 281-394-3287
Fax 832-476-5460
kstephens@stephensdominitz.com
/s/ Paul J. Downey
Paul J. Downey
PETITION FOR WRIT OF MANDAMUS 26
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFÉ VIII, § IN THE DISTRICT COURT
INC., LOS CUCOS MEXICAN §
CAFÉ IV, INC., MANUEL §
CABRERA, and SERGIO §
CABRERA §
PLAINTIFFS, §
§
V. § 133rd JUDICIAL DISTRICT
§
8650 FRISCO LLC, MANDONA §
LLC, GALOVELHO LLC, §
BAHTCHE LLC, CLAUDIO §
NUNES, AND DAVID JEIEL §
RODRIGUES §
DEFENDANT. § OF HARRIS COUNTY, TEXAS
APPENDIX AND RECORD
TABLE OF CONTENTS
Exhibit A - Respondent’s Order dated April 1, 2015 Compelling Production
of Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 1
Exhibit B - Respondent’s Order dated April 27, 2015 Compelling
Production of Documents and Imposing Sanctions;. . . . . . . . . . . . . App. 2
Exhibit C - TEX. R. CIV. P. 21a.. . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 4
Exhibit D - TEX. R. CIV. P. 63.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 6
Exhibit E - TEX. R. CIV. P. 65.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 7
Exhibit F - TEX. R. CIV. P. 96. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 8
Exhibit G - TEX. R. CIV. P. 162. . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 9
Exhibit H - TEX. R. CIV. P. 192.3. . . . . . . . . . . . . . . . . . . . . . . . . . App. 10
PETITION FOR WRIT OF MANDAMUS 27
Exhibit I - TEX. R. CIV. P. 192.7. . . . . . . . . . . . . . . . . . . . . . . . . . . App. 12
Exhibit J - TEX. R. CIV. P. 215.1. . . . . . . . . . . . . . . . . . . . . . . . . . App. 13
Exhibit K - Plaintiff’s Original Petition. . . . . . . . . . . . . . . . . . . . . . . App. 15
Exhibit L - Plaintiff’s Set of Discovery Requests, April 14, 2014. . . App. 26
Exhibit M - Defendant’s Original Answer. . . . . . . . . . . . . . . . . . . . . App. 38
Exhibit N - Transcript of Hearing, July 28, 2014. . . . . . . . . . . . . . . App. 42
Exhibit O - Respondent’s July 28, 2014, Order Compelling Production of
Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 93
Exhibit P - August 5, 2014 Transcript of Settlement Agreement. . . App. 95
Exhibit Q - Plaintiff’s Fourth Amended Petition. . . . . . . . . . . . . . . App. 100
Exhibit R - Plaintiff’s Second Motion to Enforce Court’s Order. . . App. 111
Exhibit S - Defendant’s Response to Second Motion to Enforce.. App. 329
Exhibit T - Defendant’s Supplement to Response to Second Motion to
Enforce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 337
Exhibit U - Letter to Attorney Kelly Stephens regarding service of
Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 342
Exhibit V - Plaintiff’s Third Motion to Enforce Court’s Order. . . . . App. 360
Exhibit W - Defendant’s Response to Plaintiff’s Third Motion
to Enforce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 430
Exhibit X - Respondent’s Order Denying Defendant’s Motion to Transfer
Venue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 439
Exhibit Y - Unsworn Declaration of Paul J. Downey regarding Plaintiff’s
PETITION FOR WRIT OF MANDAMUS 28
Discovery Requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 440
Exhibit Z - Statement of No Evidence. . . . . . . . . . . . . . . . . . . . . . . App. 442
PETITION FOR WRIT OF MANDAMUS 29
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFÉ VIII, § IN THE DISTRICT COURT
INC., LOS CUCOS MEXICAN §
CAFÉ IV, INC., MANUEL §
CABRERA, and SERGIO §
CABRERA §
PLAINTIFFS, §
§
V. § 133rd JUDICIAL DISTRICT
§
8650 FRISCO LLC, MANDONA §
LLC, GALOVELHO LLC, §
BAHTCHE LLC, CLAUDIO §
NUNES, AND DAVID JEIEL §
RODRIGUES §
DEFENDANT. § OF HARRIS COUNTY, TEXAS
UNSWORN DECLARATION OF PAUL J. DOWNEY
1. My name is Paul J. Downey. I am of sound mind, capable of making
this unsworn declaration, and personally acquainted with the facts
herein stated.
2. I am a lawyer at Mosser Law, PLLC.
3. I am one of the custodians of the records at Mosser Law, PLLC.
4. Attached hereto are the following 444 pages of records from Mosser
Law, PLLC. These records are kept by Mosser Law, PLLC in the
regular course of business, and it was in the regular course of
business of Mosser Law, PLLC, that an employee or representative
of Mosser Law PLLC, with knowledge of the act or event recorded,
made the records.
5. The records were made at or near the time of the event, or
reasonably soon thereafter.
6. The records attached hereto are exact duplicates of the originals and
contain:
a. Exhibit A- Respondent's Order dated April 1, 2015 Compelling
Production of Documents;
b. Exhibit 8 - Respondent's Order dated April 27, 2015
Compelling Production of Documents and Imposing Sanction;
c. Exhibit C- TEX. R. CIV. P. 21 a;
d. Exhibit D -TEX. R. CIV. P. 63;
e. Exhibit E- TEX. R. CIV. P. 65;
f. Exhibit F -TEX. R. CIV. P. 96;
g. Exhibit G- TEX. R. CIV. P. 162;
h. Exhibit H- TEX. R. CIV. P. 192.3;
1. Exhibit I- TEX. R. CIV. P. 192.7;
J. Exhibit J -TEX. R. CIV. P. 215.1 ;
k. Exhibit K - Plaintiff's Original Petition;
I. Exhibit L- Plaintiff's Set of Discovery Requests, April 14, 2014
m. Exhibit M - Defendant's Original Answer;
n. Exhibit N -Transcript of Hearing, July 28, 2014;
o. Exhibit 0 - Respondent's July 28, 2014 Order Compelling
Production of Documents;
p. Exhibit P -August 5, 2014, Transcript of Settlement
Agreement;
q. Exhibit Q - Plaintiff's Fourth Amended Petition ;
r. Exhibit R - Plaintiff's Second Motion to Enforce Court's Order;
s. Exhibit S - Defendant's Response to Second Motion to Enforce;
t. Exhibit T- Defendant's Supplement to Response to Second
Motion to Enforce;
u. Exhibit U - Letter to Attorney Kelly Stephens regarding service
of Documents;
v. Exhibit V- Plaintiff's Third Motion to Enforce Court's Order;
w. Exhibit W- Defendant's Response to Plaintiff's Third Motion to
Enforce.
x. Exhibit X - Respondent's March 23, 2015 Order Denying
Defendant's Motion to Transfer Venue
y. Exhibit Y- Unsworn Declaration of Paul J. Downey regarding
Plaintiff's Discovery Requests.
My name is Paul James Downey, my date of birth is January 19, 1984, and
my address is C/0 Mosser Law, PLLC, 2805 Dallas Parkway, Suite 222,
Plano, Texas 75093, United States of America. I declare under penalty of
perjury that the foregoing is true and correct.
Executed in Collin County, State of Texas on the 5th Day of May, 2015.
r/~R :~
Paul J . Downey .,. "
Exhibit A
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Exhibit B
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App. 2
Exhibit B
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App. 3
Rule 21a. Methods of Service, TX R RCP Rule 21a
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 1. General Rules (Refs & Annos)
TX Rules of Civil Procedure, Rule 21a
Rule 21a. Methods of Service
Currentness
(a) Methods of Service. Every notice required by these rules, and every pleading, plea, motion, or other form of request required
to be served under Rule 21, other than the citation to be served upon the filing of a cause of action and except as otherwise
expressly provided in these rules, may be served by delivering a copy to the party to be served, or the party's duly authorized
agent or attorney of record in the manner specified below:
(1) Documents Filed Electronically. A document filed electronically under Rule 21 must be served electronically through the
electronic filing manager if the email address of the party or attorney to be served is on file with the electronic filing manager.
If the email address of the party or attorney to be served is not on file with the electronic filing manager, the document may
be served on that party or attorney under subparagraph (2).
(2) Documents Not Filed Electronically. A document not filed electronically may be served in person, mail, by commercial
delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.
(b) When Complete.
(1) Service by mail or commercial delivery service shall be complete upon deposit of the document, postpaid and properly
addressed, in the mail or with a commercial delivery service.
(2) Service by fax is complete on receipt. Service completed after 5:00 p.m. local time of the recipient shall be deemed served
on the following day.
(3) Electronic service is complete on transmission of the document to the serving party's electronic filing service provider.
The electronic filing manager will send confirmation of service to the serving party.
(c) Time for Action After Service. Whenever a party has the right or is required to do some act within a prescribed period after
the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added
to the prescribed period.
(d) Who May Serve. Notice may be served by a party to the suit, an attorney of record, a sheriff or constable, or by any other
person competent to testify.
Exhibit ©C2015 Thomson Reuters. No claim to original U.S. Government Works. App. 4 1
Rule 21a. Methods of Service, TX R RCP Rule 21a
(e) Proof of Service. The party or attorney of record shall certify to the court compliance with this rule in writing over signature
and on the filed instrument. A certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any
other person showing service of a notice shall be prima facie evidence of the fact of service. Nothing herein shall preclude any
party from offering proof that the document was not received, or, if service was by mail, that the document was not received
within three days from the date that it was deposited in the mail, and upon so finding, the court may extend the time for taking
the action required of such party or grant such other relief as it deems just.
(f) Procedures Cumulative. These provisions are cumulative of all other methods of service prescribed by these rules.
Credits
Aug. 18, 1947, eff. Dec. 31, 1947. Amended by orders of July 21, 1970, eff. Jan. 1, 1971; Oct. 3, 1972, eff. Feb. 1, 1973; July
11, 1977, eff. Jan. 1, 1978; June 10, 1980, eff. Jan. 1, 1981; Dec. 5, 1983, eff. April 1, 1984; April 24, 1990, eff. Sept. 1, 1990;
Dec. 11, 2013, eff. Jan. 1, 2014.
Editors' Notes
COMMENT--2013
Rule 21a is revised to incorporate rules for electronic service in accordance with the Supreme Court's order--Misc.
Docket No. 12-9206, amended by Misc. Docket Nos. 13-9092 and 13-9164--mandating electronic filing in civil cases
beginning on January 1, 2014.
Notes of Decisions (327)
Vernon's Ann. Texas Rules Civ. Proc., Rule 21a, TX R RCP Rule 21a
Current with amendments received through 3/15/2015
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Exhibit ©C2015 Thomson Reuters. No claim to original U.S. Government Works. App. 5 2
Rule 63. Amendments and Responsive Pleadings, TX R RCP Rule 63
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 4. Pleading
A. General
TX Rules of Civil Procedure, Rule 63
Rule 63. Amendments and Responsive Pleadings
Currentness
Parties may amend their pleadings, respond to pleadings on file of other parties, file suggestions of death and make representative
parties, and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise
to the opposite party; provided, that any pleadings, responses or pleas offered for filing within seven days of the date of trial
or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge
is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to
the opposite party.
Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of July 26, 1960, eff. Jan. 1, 1961; April 24, 1990, eff. Sept. 1, 1990.
Notes of Decisions (724)
Vernon's Ann. Texas Rules Civ. Proc., Rule 63, TX R RCP Rule 63
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Exhibit ©D2015 Thomson Reuters. No claim to original U.S. Government Works. App. 6 1
Rule 65. Substituted Instrument Takes Place of Original, TX R RCP Rule 65
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 4. Pleading
A. General
TX Rules of Civil Procedure, Rule 65
Rule 65. Substituted Instrument Takes Place of Original
Currentness
Unless the substituted instrument shall be set aside on exceptions, the instrument for which it is substituted shall no longer be
regarded as a part of the pleading in the record of the cause, unless some error of the court in deciding upon the necessity of
the amendment, or otherwise in superseding it, be complained of, and exception be taken to the action of the court, or unless
it be necessary to look to the superseded pleading upon a question of limitation.
Credits
Oct. 29, 1940, eff. Sept. 1, 1941.
Notes of Decisions (101)
Vernon's Ann. Texas Rules Civ. Proc., Rule 65, TX R RCP Rule 65
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Exhibit ©E2015 Thomson Reuters. No claim to original U.S. Government Works. App. 7 1
Rule 96. No Discontinuance, TX R RCP Rule 96
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 4. Pleading
C. Pleadings of Defendant
TX Rules of Civil Procedure, Rule 96
Rule 96. No Discontinuance
Currentness
Where the defendant has filed a counterclaim seeking affirmative relief, the plaintiff shall not be permitted by a discontinuance
of his suit, to prejudice the right of the defendant to be heard on such counterclaim.
Credits
Oct. 29, 1940, eff. Sept. 1, 1941.
Notes of Decisions (10)
Vernon's Ann. Texas Rules Civ. Proc., Rule 96, TX R RCP Rule 96
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Exhibit ©F2015 Thomson Reuters. No claim to original U.S. Government Works. App. 8 1
Rule 162. Dismissal or Non-Suit, TX R RCP Rule 162
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 7. Abatement and Discontinuance of Suit
TX Rules of Civil Procedure, Rule 162
Rule 162. Dismissal or Non-Suit
Currentness
At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case,
or take a non-suit, which shall be entered in the minutes. Notice of the dismissal or non-suit shall be served in accordance with
Rule 21a on any party who has answered or has been served with process without necessity of court order.
Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative
relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for
sanctions, attorney's fees or other costs, pending at the time of dismissal, as determined by the court. Any dismissal pursuant to
this rule which terminates the case shall authorize the clerk to tax court costs against dismissing party unless otherwise ordered
by the court.
Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Dec. 5, 1983, eff. April 1, 1984; July 15, 1987, eff. Jan. 1, 1988.
Notes of Decisions (639)
Vernon's Ann. Texas Rules Civ. Proc., Rule 162, TX R RCP Rule 162
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Exhibit ©G2015 Thomson Reuters. No claim to original U.S. Government Works. App. 9 1
192.3. Scope of Discovery, TX R RCP Rule 192.3
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 9. Evidence and Discovery (Refs & Annos)
B. Discovery
Rule 192. Permissible Discovery: Forms and Scope; Work Product; Protective Orders; Definitions
(Refs & Annos)
TX Rules of Civil Procedure, Rule 192.3
192.3. Scope of Discovery
Currentness
(a) Generally. In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject
matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense
of any other party. It is not a ground for objection that the information sought will be inadmissible at trial if the information
sought appears reasonably calculated to lead to the discovery of admissible evidence.
(b) Documents and Tangible Things. A party may obtain discovery of the existence, description, nature, custody, condition,
location, and contents of documents and tangible things (including papers, books, accounts, drawings, graphs, charts,
photographs, electronic or videotape recordings, data, and data compilations) that constitute or contain matters relevant to the
subject matter of the action. A person is required to produce a document or tangible thing that is within the person's possession,
custody, or control.
(c) Persons with Knowledge of Relevant Facts. A party may obtain discovery of the name, address, and telephone number of
persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case. A person
has knowledge of relevant facts when that person has or may have knowledge of any discoverable matter. The person need not
have admissible information or personal knowledge of the facts. An expert is “a person with knowledge of relevant facts” only
if that knowledge was obtained first-hand or if it was not obtained in preparation for trial or in anticipation of litigation.
(d) Trial Witnesses. A party may obtain discovery of the name, address, and telephone number of any person who is expected to
be called to testify at trial. This paragraph does not apply to rebuttal or impeaching witnesses the necessity of whose testimony
cannot reasonably be anticipated before trial.
(e) Testifying and Consulting Experts. The identity, mental impressions, and opinions of a consulting expert whose mental
impressions and opinions have not been reviewed by a testifying expert are not discoverable. A party may discover the following
information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been
reviewed by a testifying expert:
(1) the expert's name, address, and telephone number;
(2) the subject matter on which a testifying expert will testify;
(3) the facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed
or made in connection with the case in which the discovery is sought, regardless of when and how the factual information
was acquired;
Exhibit ©H2015 Thomson Reuters. No claim to original U.S. Government Works. App. 10 1
192.3. Scope of Discovery, TX R RCP Rule 192.3
(4) the expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought,
and any methods used to derive them;
(5) any bias of the witness;
(6) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared
by or for the expert in anticipation of a testifying expert's testimony;
(7) the expert's current resume and bibliography.
(f) Indemnity and Insuring Agreements. Except as otherwise provided by law, a party may obtain discovery of the existence
and contents of any indemnity or insurance agreement under which any person may be liable to satisfy part or all of a judgment
rendered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the
indemnity or insurance agreement is not by reason of disclosure admissible in evidence at trial.
(g) Settlement Agreements. A party may obtain discovery of the existence and contents of any relevant portions of a settlement
agreement. Information concerning a settlement agreement is not by reason of disclosure admissible in evidence at trial.
(h) Statements of Persons with Knowledge of Relevant Facts. A party may obtain discovery of the statement of any person with
knowledge of relevant facts--a “witness statement”--regardless of when the statement was made. A witness statement is (1) a
written statement signed or otherwise adopted or approved in writing by the person making it, or (2) a stenographic, mechanical,
electrical, or other type of recording of a witness's oral statement, or any substantially verbatim transcription of such a recording.
Notes taken during a conversation or interview with a witness are not a witness statement. Any person may obtain, upon written
request, his or her own statement concerning the lawsuit, which is in the possession, custody or control of any party.
(i) Potential Parties. A party may obtain discovery of the name, address, and telephone number of any potential party.
(j) Contentions. A party may obtain discovery of any other party's legal contentions and the factual bases for those contentions.
Credits
Aug. 5, 1998 and amended Nov. 9, 1998, eff. Jan. 1, 1999.
Notes of Decisions (179)
Vernon's Ann. Texas Rules Civ. Proc., Rule 192.3, TX R RCP Rule 192.3
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Exhibit ©H2015 Thomson Reuters. No claim to original U.S. Government Works. App. 11 2
192.7. Definitions, TX R RCP Rule 192.7
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 9. Evidence and Discovery (Refs & Annos)
B. Discovery
Rule 192. Permissible Discovery: Forms and Scope; Work Product; Protective Orders; Definitions
(Refs & Annos)
TX Rules of Civil Procedure, Rule 192.7
192.7. Definitions
Currentness
As used in these rules--
(a) Written Discovery means requests for disclosure, requests for production and inspection of documents and tangible things,
requests for entry onto property, interrogatories, and requests for admission.
(b) Possession, Custody, or Control of an item means that the person either has physical possession of the item or has a right
to possession of the item that is equal or superior to the person who has physical possession of the item.
(c) A Testifying Expert is an expert who may be called to testify as an expert witness at trial.
(d) A Consulting Expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of
litigation or in preparation for trial, but who is not a testifying expert.
Credits
Aug. 5, 1998 and amended Nov. 9, 1998, eff. Jan. 1, 1999.
Notes of Decisions (10)
Vernon's Ann. Texas Rules Civ. Proc., Rule 192.7, TX R RCP Rule 192.7
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Exhibit ©I 2015 Thomson Reuters. No claim to original U.S. Government Works. App. 12 1
215.1. Motion for Sanctions or Order Compelling Discovery, TX R RCP Rule 215.1
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 9. Evidence and Discovery (Refs & Annos)
B. Discovery
Rule 215. Abuse of Discovery; Sanctions (Refs & Annos)
TX Rules of Civil Procedure, Rule 215.1
215.1. Motion for Sanctions or Order Compelling Discovery
Currentness
A party, upon reasonable notice to other parties and all other persons affected thereby, may apply for sanctions or an order
compelling discovery as follows:
(a) Appropriate Court. On matters relating to a deposition, an application for an order to a party may be made to the court in
which the action is pending, or to any district court in the district where the deposition is being taken. An application for an
order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken. As to all
other discovery matters, an application for an order will be made to the court in which the action is pending.
(b) Motion.
(1) If a party or other deponent which is a corporation or other entity fails to make a designation under Rules 199.2(b)(1)
or 200.1(b); or
(2) If a party, or other deponent, or a person designated to testify on behalf of a party or other deponent fails:
(A) to appear before the officer who is to take his deposition, after being served with a proper notice; or
(B) to answer a question propounded or submitted upon oral examination or upon written questions; or
(3) if a party fails:
(A) to serve answers or objections to interrogatories submitted under Rule 197, 1 after proper service of the interrogatories;
or
(B) to answer an interrogatory submitted under Rule 197; or
(C) to serve a written response to a request for inspection submitted under Rule 196, 2 after proper service of the request; or
(D) to respond that discovery will be permitted as requested or fails to permit discovery as requested in response to a
request for inspection submitted under Rule 196;
the discovering party may move for an order compelling a designation, an appearance, an answer or answers, or inspection
or production in accordance with the request, or apply to the court in which the action is pending for the imposition of
any sanction authorized by Rule 215.2(b) without the necessity of first having obtained a court order compelling such
discovery.
Exhibit ©J 2015 Thomson Reuters. No claim to original U.S. Government Works. App. 13 1
215.1. Motion for Sanctions or Order Compelling Discovery, TX R RCP Rule 215.1
When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination
before he applies for an order.
If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered
to make on a motion pursuant to Rule 192.6.
(c) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure
to answer.
(d) Disposition of Motion to Compel: Award of Expenses. If the motion is granted, the court shall, after opportunity for hearing,
require a party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them
to pay, at such time as ordered by the court, the moving party the reasonable expenses incurred in obtaining the order, including
attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances
make an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment.
If the motion is denied, the court may, after opportunity for hearing, require the moving party or attorney advising such motion
to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including
attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make
an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the
motion among the parties and persons in a just manner.
In determining the amount of reasonable expenses, including attorney fees, to be awarded in connection with a motion, the trial
court shall award expenses which are reasonable in relation to the amount of work reasonably expended in obtaining an order
compelling compliance or in opposing a motion which is denied.
(e) Providing Person's Own Statement. If a party fails to comply with any person's written request for the person's own statement
as provided in Rule 192.3(h), the person who made the request may move for an order compelling compliance. If the motion
is granted, the movant may recover the expenses incurred in obtaining the order, including attorney fees, which are reasonable
in relation to the amount of work reasonably expended in obtaining the order.
Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Aug. 5, 1998, and Nov. 9, 1998, eff. Jan. 1, 1999.
Notes of Decisions (51)
Footnotes
1 Vernon's Ann.Rules Civ.Proc., rule 197.1 et seq.
2 Vernon's Ann.Rules Civ.Proc., rule 196.1 et seq.
Vernon's Ann. Texas Rules Civ. Proc., Rule 215.1, TX R RCP Rule 215.1
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Exhibit ©J 2015 Thomson Reuters. No claim to original U.S. Government Works. App. 14 2
03/12/2014 21:51 #0650 P.002 /011
CAUS~NO.
t,D/4./- /IJ9''
_____________
LOS CUCOS MEXICAN CAFE vm, § IN THE DISTRICT COURT OF
INC., LOS CUCOS MEXICAN CAFE' §
IV, INC., MANUEL CAB.RERA, and §
SERGIO CABRERA §
§
Plaintilfs, §
§
vs. § HARRIS cOUNTY, TEXAS
§
8650 FRISCO, LLC d/b/a ESTILO§
GAUCHO BRA.ZlLIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES §
,.,~.
and DAVID JEIEL RODRIGUES §
§
Derendan~. § /JJ-JUDlCIALDISTRICf
PLAINTIFF'S ORIGINAL PETITION
Plaintiff>, Los Cucos Mexican Cafe Vlll, lnc., Los Cucos Mexican Cafe IV, Inc., Manuel
Cabrera and Sergio Cabrera, file this their Original Petition against Defendants, 8650 Frisco,
LLC d/b/a Estilo Gaucho Brazilian Steak.house, Man dona, LLC, Galovelho, LLC, Bahtche, LLC,
Claudio Nunes alk/a Alex Nunes and David Jcicl Rogrigues, and for cause of action would show:
Discovery Control Plan
I. Plaintiffs intend to conduct discovery under Level 3 of Rule 190.3 of the Texas
Rules of Civil Procedure.
2. Plaintiffs seek damages within the jurisdictional limits of this Court, monetary
relief over $1,000,000.
Parties
3. Plaintiff, Los Cucos Mexican Cafe VI!I, Inc., ("Los Cucos VHJ") is a Texas
Corporation with i~ principal place ofbusiness in Houston, Hanis County, Texas.
Page 1 oflO
Exhibit K App. 15
03/12/2014 21:51 #0650 P.003 /011
4. Plaintiff, Los Cucos Mexican Cafe IV, Inc., ("Los Cucos IV") is a Texas
Corporation with its principal place of business in Houston, Harris County, Texas.
5. Plaintiff, Manuel Cabrera is an individual who resides in Austin County, Texas.
6. Plaintiff. Sergio Cabrera is an individual who resides in Houston, Harris County,
Texas.
7. Defendant, 8650 Frisco, LLC, ("8650 Frisco") is a Texas limited liability
company doing business as Estilo Gaucho BrBJ;ilian Steakhousc, with its principal place of
business at 8650 llighway 121, Frisco, Collin County, Texas, which may be located for service
of process by and through its Registered Agent:
Hoftinan Kaliser & Messina, P.C.
17950 Preston Road, Suite 230
Dallas, Dallas County, Texas 75252
8. Defendant, Mandona, LLC, ("Mandona") is a Texas limited liability company
with its principal place of bu5iness at 8650 Highway 121, Frisco, Collin County, Texas, which
may be located for service of process by and through its Registered Agent:
Hoffman Kaliser & Messina, P.C.
17950 Preston Road, Suite 230
Dallas, Dallas County, Texas 75252
9. Defendant, Galovelho, LLC, ("Galovelho") is a Texas limited liability company
with its principal place of business at 8650 Highway 121, Frisco, Collin County, Texas, which
may be located for service of process by and through its Registered Agent:
Hoffman Kaliser & Messina, P.C.
17950 Preston Road, Suite 230
Dallas, Dallas County, Texas 75252
Pagc2 oflO
Exhibit K App. 16
03/12/2014 21:52 #0650 P.004 /011
I 0. Defendant, Bahtche, LLC, ("Bahtche") is a Texas limited liability company with
its principal place of business at 8650 Highway 121, Frisco, Collin County, Texas, which may be
located for service of process by and through its Registered Agent;
Hoffman Kaliser & Messina, P.C.
17950 Preston Road, Suite 230
Dallas, Dallas County, Texas 75252
II. Defendant, Claudio Nunes a/kJa Alex Nunes ("Nunes") is in individual citizen of
Texas who may be located for service of process at his principal place of business:
Claudio "Alex" Nunes
8650 HW 121
Frisco, Collin County, Texas 75034
12. Defendant, David Jeiel Rodrigues ("Rodrigues") is in individual citizen of Texas
who may be located for service of process at his principal place of business:
David Jciel Rodrigues
8650HW 121
Frisco, Collin County, Texas 75034
Venue & Jurisdiction
13. Venue is proper under TEx. Clv. PIU\C. & RllM. Com;§ l5.002(a)(l) because a
substantial part of the events giving rise to this lawsuit occurred within this county.
14. Jurisdiption is proper in this Court because the parties are all Texas residents and
the amount in controversy is within the jurisdictional limits of the court.
Factual Background
15. Manuel Cabrera and Sergio Cabrera arc the owners and operators of a number of
Mexican restaurants branded and known as Los Cucos Mexican Cafe. Each restaurant is a
separate legal entity registered with the State of Texas. Los Cucos VID and Los Cucos TV are
two of these entities.
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Exhibit K App. 17
03/12/2014 21:52 #0650 P.005 /011
16. Sometime in 2010, Nunes approached Sergio Cabrera with the idea to enter into a
venture to build and operate a Brazilian steakhouse.
17. Initially, the parties agreed that Los Cucos Vlli, Inc., would fund the construction
and outfitting of the restaurant and that Nunes would manage the construction and build out, and
then Nunes would operate the restaurant. The parties agreed that Los Cucos Vlll would support
the operating restaurant until such time as it began to make money on a consistent basis by:
a. directly funding the construction and outfitting of the structure;
b. guaranteeing the property lease on the real estate;
c. guaranteeing the food and drink vendors supplying the restaurant; and,
d. contributing such cash flow such that for the first month, the
restaurant could pay Nunes a management fee.
18. At some point in the negotiation, Rodrigues entered the picture as a partner with
Nunes in the anticipated project.
19. Eventually, in approximately March, 2012, the project developed into the
following corporate structure:
a 8650 Frisco was set up to be the operating restaurant entity.
b. Galovelho was set up to be a member in 8650 Frisco and to represent the
ownership of Nunes and Rodriques.
c. Mandona was set up by Nunes and Rodriques to be the manager of 8650
Frisco.
d. Los Cucos VIII was to be a member in 8650 Frisco and to represent the
interest of Manuel and Sergio Cabrera.
Page 4 oflO
Exhibit K App. 18
03/12/2014 21:53 #0650 P.006 /011
e. All assets contributed to or which were developed as the property of the
venture were to be owned by 8650 Frisco.
20. In the beginning, as agreed, bank accounts were set up in the name of 8650 Frisco
and all parties had access to such accounts.
21. Further, it was the agreement that after the first month of operation:
a. If the available distributable cash was less than or equal to $20,000.00, it
would be split 50/50 between the members;
b. lfthe available distributable cash was greater than $20,000 and Los Cucos
VIII had not been fully paid back its cash contributions the cash would be paid
$10,000 to Galovelho and the remainder would be paid to Los Cueos Vlll; and,
c. lf the available distributable cash was greater than $20,000 and Los Cuco
Vlll had been fully paid back its cash contributions the cash would be paid to
each member on a 50/50 basis.
22. Los Cucos Vlli put in excess of$1.2 million into the project from 2010 through
early 2013.
23. Los Cucos TV paid for and loaned to the project equipment and furniture costing
in excess of $60,000. In particular, Los Cucos TV paid for two large Brazilian grills and had
them shipped to the United States. These grills are highly specialized and not readily available
on the U.S. market.
24. Manuel and Sergio Cabrera were required to and did personally guarantee the real
estate lease.
?"
-~- The restaurant has been operating since Feb 20!3 and on information and belief is
generating $40,000.00 to $60,000.00 per month in distributable cash.
Page5ofl0
Exhibit K App. 19
03/12/2014 21:53 #0650 P.007 /011
26. In March 2012, Los Cucos VIII began to propose a written company agreement to
control tbe operation of tbe project. Galovclho, Nunes, Rodrigues and Mandona have refused
and continue to refuse to execute such agreement.
27. Upon information and belief 8650 Frisco has over the last year of operation buill a
cash surplus in excess of$180,000.00, yet Los Cucos has not been received any distributions.
28. PlaintiffS recently discovered tbat Galovelho, Nunes, Rodrigues and Mandona
have moved the bank accounts of 8650 Frisco and arc denying Los Cucos Vlll access to same in
violation of the agreement.
29. Galovelho, Nunes, Rodrigues and Mandona have taken total control of the project
and have not issued Los Cucos VITJ its agreed ownership interest in 8650 Frisco. In addition,
they have hidden the partnership assets and bank accounts and refuse to account for same to Los
Cucos Vlll.
30. It has been learned tbat Bahtche, a company owned and controlled by Nunes and
Rodrigues has applied to the United States Patent and Trademark office tbr a Trademark on the
name Ei.tilo Gaucho Brazilian Steakhouse. This name and/or mark is the property of 8650 Frisco.
31. Los Cucos IV has made written demand for the return ofits property. 8650 Frisco,
Galovclho, Mandona, Nunes, and Rodrigues have refused to return same and/or have refused to
allow Los Cucos TV entry upon the property to collect said property.
Causes of Action
A. Breacb of Contract
32. Los Cucos VIII asserts a cause of action for breach of the agreement to develop
and operate 8650 Frisco as to all Defendants.
Page6ofl0
Exhibit K App. 20
03/12/2014 21:54 #0650 P.008 /011
B. Conversion
33. Defendants have converted Los Cucos IV' s properly by wrongfully exercising
dominion and control over it.
34. Defendants have converted certain bank accounts belonging to 8650 Frisco.
35. Bahtche, the direction and control of Nunes and Rodrigues has converted the
trade name and mark of8650 Frisco.
C. Fraud/Fraudulent Inducement
36. Defendants' conduct constitutes actual fraud against Los Cucos VIII.
37. The acts of fraud were intentional and were meant specifically to enrich
Defendants to the detriment of Los Cucos VIII. Los Cucos VJII has suffered damage as a result
of Defendant~' fraudulent conduct.
38. Defendants' fraudulent representations were made with the specific intent to
cause and have caused Manuel and Sergio Cabrera to guarantee the lease for 8650 Frisco.
D. Civil Conspiracy
39. Nunes, Rodrigues, Mandona, Galovelho, 8650 Frisco and Bahtche have combined
to accomplish the unlawful purposes (or lawful purposes by unlawful means) of fraud, breach of
fiduciary duty, and conversion as enumerated above. Defendants had a meeting of the minds on
their objects and courses of action.
E. AlterEgo
40. Plaintiffs assert that 8650 Frisco, Mandona, Galovelho and Bahtche are a mere
tools or business conduits (alter ego) of Nunes and Rodrigues. Nunes and Rodrigues are the
principal/only shareholders of 8650 Frisco, Mandona, Galovelho and Baheche, such that there is
such unity between Nunes/Rodrigues and 8650 Frisco, Mandona, Galovclho and Baheche, that
Page 7 oflO
Exhibit K App. 21
03/12/2014 21:54 #0650 P.009 /011
any separation of entities has ceased from a liability perspective. As such there is joint and
several liability between Nunes, Rodrigues and 8650 Frisco, Man dona, Galovelho and Baheche.
F. Unjust Enrichment/Quantum Meruit
4 I. Plaintiffs assert that Defendants have been unjustly enriched by the receipt of
money and the receipt and use of property belonging to Plaintiffs. Defendants received the
money and property knowing that the Plaintiffs expected to be compensated, but Defendants
made use of and benefited from the money and property without returning any value to Plaintiffs.
F. Accounting
42. Los Cucos Vlll seeks an accounting from Nunes, Rodrigues and 8650 Frisco,
Mandona, Galovelho and Babcchc for amounts due under the agreement that have been diverted
by Defendants.
Damages
43. Plaintiffs seck actual damages in excess of the minimum jurisdiction of this court.
44. Plaintiffs seek exemplary damages in amount not to exceed twice the actual
damages shown.
Attorneys' Fees
45. Plaintiff is entitled to recover the attorneys' fees that it incurs in prosecuting the
above stated claims pursuant to Chapters 37 and 38 the TEX Crv. PRAC. & REM. CoDE as well as
oilier laws and statutes of the State of Texas.
Conditions Precedent
46. All conditions precedent to Plaintiffs' claims and causes of action have been
performed or have occurred.
Page 8 oflO
Exhibit K App. 22
03/12/201~ 21:54 #0650 P.010 /011
Pr.ayer
47. For these reasons, Plaintiffs ask that it be awarded the following relief:
a. that the Court order an accounting;
b. that Plaintiffs be awarded their actual, special and consequential damages;
c. that Plaintiffs be awarded exemplary damages;
d. that Plaintiffs be awarded costs and attorneys' fees;
e. that Plainti!Is be awarded pre and post-judgment interest; and
f. that Plaintiffs receive all other relief, at law or in equity, to which they may be
justly entitled.
Respectfully submitted,
STEPHENS & DoMNITZ, PLLC
Is/Kelly D. Stephens
Kelly D. Stephens
SBN: 19158300
P.O. Box 79734
Houston, Texas 77279-9734
Tel: 281-394-3287
Fax: 832-476-5460
kstephensr@stephensdomnitT..com
ATTORNEY FOR PLAINTIFFS
LOS CUCOS MEXICAN CAFE Vill, Inc.,
LOS CUCOS MEXICAN CAFE IV, Inc.,
MANUEL CABRERA, and
SERGIO CABRERA
Page 9 oflO
Exhibit K App. 23
03/12/201< 21:55 #0650 P.Oll /011
HAWASH MEADE GASTON NEESE & CICACK LLP
/s/ Andrew K. Meade
Andrew K. Meade
State Bar No. 24032854
2118 Smith Street
Houston, Texas 77002
713-658-9006 (Direct & Fax)
ameade@hmgllp.com
ATTORNEYSFORPLAlNTITFS
LOS CUCOS MEXICAN CAFE Vlli, Inc.,
LOS CUCOS MEXICAN CAFE IV, Inc.,
MANUELCABRERA,ood
SERGIO CABRERA
Page 10 oflO
Exhibit K App. 24
03/12/2014 21:51 #0650 P.OOl /011
STEPHENS & DoMNITZ, PLLC
ATTORNEYS AT lAW
P.o. Box 79734 TELI:PHONE 281-394-3287
HOUSTON, TEXAS 77279-9734 FACS/Mil£ 713-476-0460
To: Nick Mosser, The Mosser Law Firm From: Kelly D. Stephens
Fax: 972-267-5072 Pages: 11 . Including cover
Phone: Date: March 13, 2014
Re: Los cucos v. 8650 Frisco CC:
0 Urgent D For Review 0 Please Comment 0 Please Reply 0 Please Recycle
• Comments:
Copy of Plaintiffs Original Petition
Exhibit K App. 25
CAUSE NO. 2014-01089
LOS CUCOS MEXICAN CAFE § IN THE DISTRICT COURT OF
VIII, INC.; LOS CUCOS MEXICAN §
CAFE IV, INC.; MANUEL §
CABRERA; and SERGIO §
CABRERA, §
Plaintiffs §
§
v. §
§ HARRIS COUNTY, TEXAS
8650 FRISCO, LLC D/B/A ESTILO §
GAUCHO BRAZILIAN §
STEAKHOUSE; MANDONA, LLC; §
GALOVELHO, LLC; BAHTCHE, §
LLC; CLAUDIO NUNES; and §
DAVID JEIEL RODRIGUES, §
Defendants § 133rd JUDICIAL DISTRICT
PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS TO 8650 FRISCO, LLC
D/B/A ESTILO GAUCHO BRAZILIAN STEAKHOUSE
TO: Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse, by and
through its counsel of record, Nicholas D. Mosser and Benjamin Casey, Mosser
Law PLLC, 17110 Dallas Parkway, Suite 290, Dallas, Texas 75248.
Pursuant to the Texas Rules of Civil Procedure, Plaintiffs Los Cucos Mexican
Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera
(“Plaintiffs”) serve their First Set of Requests for Admissions, Requests for Production
and First Set of Interrogatories on Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho
Brazilian Steakhouse (“Defendant”) as authorized by Rules 196 and 198, TEX. R. CIV. P.
Defendant must specifically admit or deny and produce all requested documents in its
possession, custody, or control (as they are kept in the ordinary course of business or
organized and labeled to correspond with categories in each request) for inspection and
Exhibit L App. 26
copying, and not more than 30 days after service, at the office of HAWASH MEADE
GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.
Respectfully submitted,
STEPHENS & DOMNITZ, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
SBN: 19158300
P.O. Box 79734
Houston, Texas 77279-9734
Tel: 281-394-3287
Fax: 832-476-5460
kstephens@stephensdomnitz.com
HAWASH MEADE GASTON NEESE
& CICACK LLP
/s/ Andrew K. Meade
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
2118 Smith Street
Houston, Texas 77002
713-658-9006 (Direct & Fax)
ameade@hmgllp.com
jmasten@hmgllp.com
ATTORNEYS FOR PLAINTIFFS
LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
LOS CUCOS MEXICAN CAFÉ IV, Inc.,
MANUEL CABRERA, and
SERGIO CABRERA
2
Exhibit L App. 27
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been served to the
following pursuant to the Texas Rules of Civil Procedure on April 14, 2014.
Via Fax: 972-267-5072 and
email: courtdocuments@mosserlaw.com
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pkwy, Suite 290
Dallas, TX 75248
/s/ Andrew K. Meade
Andrew K. Meade
3
Exhibit L App. 28
DEFINITIONS AND INSTRUCTIONS
1. As used throughout this request (including these definitions and
instructions), the term “documents” means each and every document (as defined in
Rule 34, FED. R. CIV. P.), all electronically stored information, and each and every
tangible thing, including but not limited to both electronic and hard copy documents, in
the possession, custody, or control of Plaintiff, whether a copy, draft, or original,
wherever located, with all exhibits, attachments, and schedules, including but not
limited to the following: correspondence and drafts of correspondence; notes or
summaries of conversations; income tax returns, forms, schedules, or worksheets; inter-
and intra-office memoranda; reports; comments; worksheets; plans; minutes; notes;
notices or notifications; findings; conclusions; memoranda; contracts or agreements of
any kind; brochures, circulars, bulletins, advertisements, sales catalogs or literature;
packages, packaging, and package inserts; notes, records, summaries, or other reports of
conferences, meetings, visits, surveys, discussions, inspections, examinations, reviews
or telephone conversations; purchase orders, quotations, estimates, invoices, bids,
receipts, or acknowledgements, including the reverse sides of all such documents with
printing, typing or writing on the reverse sides; bills of lading and other shipping
documents; credit agreements or credit memoranda; contract or lease offers or
proposals; executed or proposed agreements, contracts, franchise agreements, licenses,
leases, insurance policies and riders, or options; proposals; diaries; desk calendars,
appointment books, or telephone call books; property valuations or appraisals, and
their updates; affidavits, depositions, transcripts and statements, or summaries or
excerpts thereof; stenographic notes; books and records; financial data; stock certificates
and evidence of stock ownership; newspaper or magazine articles; pamphlets, books,
texts, notebooks, magazines, manuals, journals, and publications; notepads, tabulations,
data compilations, calculations, or computations; schedules; drafts; charts and maps;
forecasts and projections; drawings, designs, plans, specifications, graphs, blueprints,
sketches, or diagrams; orders; pleadings and court filings; checks and check stubs (front
and back); records or transcripts of statements, depositions, conversations, meetings,
discussions, conferences or interviews, whether in person or by telephone or by other
means; workpapers; printouts or other stored information from computers or other
information retention or processing systems; e-mail or electronic mail or
communications, in whatever form; instant messages in whatever form; photographic
matter or sound reproduction matter however produced, reproduced or stored;
government reports, regulations, filings or orders; any other written, printed, typed,
taped, recorded, or graphic matters; any exhibits, attachments, or schedules to or with
the foregoing; any drafts of the foregoing; and any copies or duplicates of the foregoing
that are different because of marginal or handwritten notations, or because of any
markings thereon or alterations thereof.
2. All electronically stored information should be produced as an electronic
copy, preserving all metadata.
4
Exhibit L App. 29
3. Throughout this request (including these definitions and instructions), the
term “communications” means any and all of the following: writings, oral
communications, electronic communications (including emails, text messages, and
instant messages), wire communications, conversations by telephone, meetings, and
any contact, oral or written, formal or informal, at any time or place, and under any
circumstance whatsoever, in which information of any nature was transmitted or
exchanged in any form or by any medium.
4. Throughout this request (including these definitions and instructions), the
phrases “relating to,” “relates to,” “related to,” "regarding," and “in relation to” mean
constituting or evidencing, and directly or indirectly mentioning, describing, referring
to, pertaining to, being connected with, reflecting upon, or concerning the stated subject
matter.
5. Throughout this request (including these definitions and instructions), the
words “any” and “all” shall be considered to include “each” and “each and every.”
6. Throughout this request (including these definitions and instructions), the
singular of any word shall include the plural, and the plural of any word shall include
the singular. The masculine form shall include the feminine and neutral forms. The
terms “and” and “or” shall mean “and/or” inclusively.
7. Throughout this request (including these definitions and instructions), the
terms “you” and “your” refer to the party responding to the request, as well as his, her,
or its present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on behalf of or
under the control of the responding party.
8. Throughout this request (including these definitions and instructions),
“Defendant” and “Frisco” mean 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian
Steakhouse, a named defendant in this matter. The term “Defendant” or “Frisco” also
includes Defendant’s present and former agents, employees, counselors, consultants,
representatives, attorneys, and any other person or entity acting or purporting to act on
its behalf or under its control.
9. Throughout this request (including these definitions and instructions), the
term “Plaintiff” or “Plaintiffs” means any named Plaintiff in this matter, including their
present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on its behalf or
under their or its control.
10. Throughout this request (including these definitions and instructions),
“Los Cucos” means Los Cucos Mexican Café VIII, Inc. and Los Cucos Mexican Café IV,
5
Exhibit L App. 30
Inc., named defendants in this matter and includes any present and former agents,
employees, counselors, consultants, affiliates, subsidiaries, representatives, attorneys,
and/or any other person or entity acting or purporting to act on the behalf or under the
control of Los Cucos.
11. If you contend that any document requested here need not be produced
under a privilege or other protection against disclosure, provide an itemized log of the
document(s) being withheld from production. In the log, specify the date of each such
document, its author(s), all recipient(s), and any person(s) copied on the document, the
paragraph of this request to which the document responds, and a brief description of
the document’s contents that supplies enough detail to assess the applicability of the
privilege or protection being claimed. In addition, please specify the privilege or
protection upon which you rely as their basis for withholding the document(s) from
production.
12. If you intend to produce any electronic document or information in
response to this request, please contact counsel for Los Cucos to discuss the form in
which such electronic document or information will be produced.
13. If you have any questions about this request, please contact counsel for
Los Cucos promptly for clarification.
14. Unless otherwise stated, the time period covered by this request is January
1, 2010 to the present.
15. You are reminded of your duty under Rule 193.5, Tex. R. Civ. P., to amend
or supplement any response that was incomplete or incorrect when made or that,
although correct and complete when made, is no longer complete and correct.
6
Exhibit L App. 31
REQUESTS FOR ADMISSIONS
Admit or deny the following:
Admission No. 1. 8650 Frisco, LLC received money from Los Cucos Mexican
Café VIII, LLC.
Admission No. 2. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as a loan.
Admission No. 3. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as an investment.
Admission No. 4. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe VIII, LLC.
Admission No. 5. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe VIII, LLC.
Admission No. 6. 8650 Frisco, LLC received money from Los Cucos Mexican
Cafe IV, LLC.
Admission No. 7. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe IV, LLC as a loan.
Admission No. 8. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VI, LLC as an investment.
Admission No. 9. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe IV, LLC.
Admission No. 10. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe IV, LLC.
Admission No. 11. 8650 Frisco, LLC received money from Manuel Cabrera.
Admission No. 12. 8650 Frisco, LLC intended to treat the money it received
from Manuel Cabrera as a loan.
Admission No. 13. Admit that 8650 Frisco, LLC intended to treat the money it
received from Manuel Cabrera as an investment.
Admission No. 14. 8650 Frisco, LLC intended to repay the money it received
from Manuel Cabrera.
7
Exhibit L App. 32
Admission No. 15. 8650 Frisco, LLC did not intend to repay the money it
received from Manuel Cabrera.
Admission No. 16. 8650 Frisco, LLC received money from Sergio Cabrera.
Admission No. 17. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as a loan.
Admission No. 18. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as an investment.
Admission No. 19. 8650 Frisco, LLC intended to repay the money it received
from Sergio Cabrera.
Admission No. 20. 8650 Frisco, LLC did not intend to repay the money it
received from Sergio Cabrera.
Admission No. 21. 8650 Frisco, LLC received equipment from Los Cucos
Mexican Cafe IV, LLC.
Admission No. 22. 8650 Frisco, LLC received furniture from Los Cucos Mexican
Cafe IV, LLC.
Admission No. 23. 8650 Frisco, LLC is currently using equipment it received
from Los Cucos Mexican Cafe IV, LLC.
Admission No. 24. 8650 Frisco, LLC is currently using furniture it received from
Los Cucos Mexican Cafe IV, LLC.
Admission No. 25. 8650 Frisco, LLC is currently using equipment paid for by
from Los Cucos Mexican Cafe IV, LLC.
Admission No. 26. 8650 Frisco, LLC is currently using furniture paid for by Los
Cucos Mexican Cafe IV, LLC.
Admission No. 27. 8650 Frisco, LLC did not pay Los Cucos Mexican Cafe IV,
LLC for any equipment or furniture.
Admission No. 28. Los Cucos Mexican Cafe IV, LLC did not gift furniture to
8650 Frisco, LLC.
8
Exhibit L App. 33
Admission No. 29. Los Cucos Mexican Cafe VIII, LLC did not gift money to
8650 Frisco, LLC.
Admission No. 30. Admit that Manuel Cabrera did not gift money to 8650
Frisco, LLC.
Admission No. 31. Sergio Cabrera did not gift money to 8650 Frisco, LLC.
Admission No. 32. 8650 Frisco, LLC is currently operating at a net profit.
Admission No. 33. 8650 Frisco, LLC is currently operating at a new loss.
Admission No. 34. 8650 Frisco, LLC is currently using the name Estilo Goucho
Brazilian Steakhouse.
Admission No. 35. 8650 Frisco, LLC is has been using the name Estilo Goucho
Brazilian Steakhouse since February, 2013.
Admission No. 36. 8650 Frisco, LLC has assigned, in writing, its rights to the
mark Estilo Gaucho Bazilian Steakhouse to Bahtche, LLC.
Admission No. 37. 8650 Frisco, LLC has not assigned, in writing, its rights to the
mark Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.
Admission No. 38. 8650 Frisco, LLC has received compensation from Bahtche,
LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.
Admission No. 39. 8650 Frisco, LLC has not received compensation from
Bahtche, LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.
Admission No. 40. Estilo Gaucho Brazilian Steakhouse is a trade name of 8650
Frisco, LLC.
Admission No. 41. 8650 Frisco, LLC does business as Estilo Gaucho Brazilian
Steakhouse.
9
Exhibit L App. 34
Requests for Production
Request No. 1. Produce all documents and records provided to or received from
8650 Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA,
Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650
Frisco, LLC.
Request No. 2. Produce all documents and records in the possession of 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.
Request No. 3. Produce all financial records of 8650 Frisco, LLC.
Request No. 4. Produce all accounting records of 8650 Frisco, LLC.
Request No. 5. Produce all bank statements of 8650 Frisco, LLC.
Request No. 6. Produce all point of sale data and reports related to 8650 Frisco,
LLC.
Request No. 7. Produce all tax records (including all 1099 forms, W-2 forms, and
K-1 forms) related to 8650 Frisco, LLC.
Request No. 8. Produce all communications and correspondence with 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.
Request No. 9. Produce all payroll records for 8650 Frisco, LLC.
Request No. 10. Produce all records of money received from any Plaintiff in this
lawsuit.
Request No. 11. Produce all records of money paid or distributed to any Plaintiff
in this lawsuit.
Request No. 12. Produce all correspondence and communications with each
Plaintiff in this lawsuit.
Request No. 13. Produce all agreements, including all drafts of agreements,
between the Parties, which relate in any way to 8650 Frisco, LLC.
10
Exhibit L App. 35
Request No. 14. Produce all leases and related documents (e.g., guarantees),
which relate to the premises currently occupied by 8650 Frisco, LLC.
Request No. 15. Produce all records of financial transactions between 8650
Frisco, LLC and Claudio Nunes.
Request No. 16. Produce all records of financial transactions between 8650
Frisco, LLC and David Jeiel Rodrigues.
Request No. 17. Produce all corporate records of 8650 Frisco, LLC.
Request No. 18. Produce quarterly and annual profit and loss statements for
8650 Frisco, LLC from its creation through the present (update quarterly through trial).
Request No. 19. Produce quarterly and annual balance sheet statements for 8650
Frisco, LLC from its creation through the present (update quarterly through trial).
Request No. 20. Produce all communications and correspondence related to any
of the Plaintiffs in this lawsuit.
Request No. 21. Produce all records of cash receipts and cash deposits for 8650
Frisco, LLC.
Request No. 22. Produce all records, including invoices, for all equipment and
furniture purchased for use by 8650 Frisco, LLC.
Request No. 23. Produce all documents which reflect or relate to the application
to the United States Patent and Trademark office for the mark Estilo GAucho Brazilian
Steakhouse.
Request No. 24. Produce the assignment of ownership rights for the mark Estilo
Gaucho Brazilian Steakhouse to Bahtche, LLC.
Request No. 25. Produce documents reflecting the exchange of compensation by
and between 8650 Frisco, LLC and Bahtche, LLC, related to the mark Estilo Gaucho
Brazilian Steakhouse.
11
Exhibit L App. 36
FIRST SET OF INTERROGATORIES
Interrogatory No. 1. Identify and explain in detail the terms upon which Los
Cucos Mexican Cafe VIII, LLC provided money to 8650 Frisco, LLC.
Interrogatory No. 2. If you contend that the money provided to 8650 Frisco, LLC
by Los Cucos Mexican Cafe VIII, LLC was a loan, describe in detail the basis of that
contention and terms of the loan.
Interrogatory No. 3. If you contend that they money provided to 8650 Frisco,
LLC by Los Cucos Mexican Cafe VIII, LLC was an investment, describe in detail the
basis of that contention and terms of the investment.
Interrogatory No. 4. Identify and describe in detail the equipment and
furnishings provided to 8650 Frisco, LLC by Los Cucos Mexican Cafe, IV.
Interrogatory No. 5. If you contend that the parties had an agreement as to 8650
Frisco, LLC’s use of the equipment and furniture provided to 8650 Frisco, LLC by Los
Cucos Mexican Cafe, IV, identify and describe in detail the basis of that contention and
terms of the agreement.
Interrogatory No. 6. Identify and describe in detail the source, date of purchase,
and cost of all equipment and furnishings used at 8650 Frisco, LLC.
Interrogatory No. 7. Detail the circumstances and terms under which the mark
Estilo Gaucho Brazilian Steakhouse was transferred to Bahtche, LLC.
12
Exhibit L App. 37
4/14/2014 9:29:21 AM
Chris Daniel - District Clerk Harris County
Envelope No. 980547
By: EVELYN PALMER
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFÉ § IN THE DISTRICT COURT OF
VIII, INC., LOS CUCOS MEXICAN §
CAFÉ IV, INC., MANUEL §
CABRERA, and SERGIO §
CABRERA §
PLAINTIFFS, §
§
V. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN §
STEAKHOUSE, MANDONA, §
LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO §
NUNES and DAVID JEIEL §
RODRIGUES §
DEFENDANTS. § 133rd JUDICIAL DISTRICT
DEFENDANTS’ ORIGINAL ANSWER
Subject to Defendants’ Motion to transfer Venue and without waiving
same, Pursuant to Rules 84 and 86:
NOW COMES 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse,
Mandona, LLC, Galovelho, LLC, Bahtche, LLC, Claudio Nunes and David
Jeiel Rodrigues (“Defendants”) and file this original answer to the original
petition filed by Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café
IV, Inc., Manuel Cabrera, and Sergio Cabrera (“Plaintiffs”) and shows the
Court:
GENERAL DENIAL
Defendants Original Answer Subject to
Motion to Transfer Venue 1 of 4
Exhibit M App. 38
In accordance with Rule 92 of the Texas Rules of Civil Procedure, Defendants
exercise their legal right to require Plaintiffs to prove their allegations
contained in their pleadings. Accordingly, Defendants generally deny the
allegations of Plaintiffs’ pleading and demand strict proof of the allegations by
a preponderance of evidence.
AFFIRMATIVE DEFENSES
1. Defendants are not liable to Plaintiffs because of Plaintiffs Fraud.
2. Defendants are not liable to Plaintiffs because of the Statute of Frauds.
3. Defendants are not liable to Plaintiffs because there is no written
agreement as recited by Plaintiffs.
4. Defendants are not liable to Plaintiffs because there is no oral
agreements as recited by Plaintiffs.
VERIFIED PLEAS
5. Defendants deny that there is any partnership as pleaded by Plaintiffs.
COUNTER CLAIM: DECLARATORY JUDGMENT
6. Defendants request a declaratory judgment that there was never an
agreement between any of the Defendants and any of the Plaintiffs as
alleged by Plaintiffs. Defendants request the court to determine the
rights of Defendants in relation to the Plaintiffs.
Defendants Original Answer Subject to
Motion to Transfer Venue 2 of 4
Exhibit M App. 39
7. Defendants request the court to award attorney’s fees pursuant to Tex.
Civ. Prac. & Rem. Code §37.009.
DISCLOSURES
Defendants request that Plaintiffs make disclosure as required under Texas
Rules of Civil Procedure 194.
PRAYER
Defendants request that all relief sought by Plaintiffs be denied, that Plaintiffs
take nothing by this suit, and that Defendants recover all costs and attorney’s
fees, together with such other and further relief to which it may be justly
entitled.
Respectfully submitted, MOSSER LAW PLLC,
/s/ James. C. Mosser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
Benjamin Casey
Texas Bar No. 24087267
17110 Dallas Parkway Suite 290
Dallas, TX 75248
Tel. (972) 733-3223
Fax. (972) 267-5072
courtdocuments@mosserlaw.com
Lawyers for Defendants.
Defendants Original Answer Subject to
Motion to Transfer Venue 3 of 4
Exhibit M App. 40
CERTIFICATE OF SERVICE
I certify that on April 14, 2014, a true and correct copy of this document was
served to the following pursuant to Texas Rules of Civil Procedure 21 & 21(a)
on the following:
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279-9734
832-476-5460 (Facsimile)
/s/ Nicholas D. Mosser
Nicholas D. Mosser
Defendants Original Answer Subject to
Motion to Transfer Venue 4 of 4
Exhibit M App. 41
1
1 REPORTER'S RECORD
2 VOLUME 1 OF 1 VOLUME
3 CAUSE NO. 2014-10896
4
LOS CUCOS MEXICAN CAFE VIII § IN THE DISTRICT COURT OF
5 §
VS. § HARRIS COUNTY, T E X A S
6 §
8650 FRISCO, LLC § 133RD JUDICIAL DISTRICT
7
8
9 ******************************************************
10 MOTIONS
11 ******************************************************
12
13 On the 28th day of July, 2014, the
14 following proceedings came on to be heard in the
15 above- entitled and numbered cause before the
16 HONORABLE JACLANEL McFARLAND, Judge Presiding of the
17 133rd District Court of Houston, Harris County, Texas.
18 Proceedings reported by stenographic
19 method.
20
21
22 LaVEARN IVEY
23 DEPUTY COURT REPORTER
24 133rd DISTRICT COURT
25 HARRIS COUNTY, TEXAS
Exhibit N App. 42
2
1 A P P E A R A N C E S:
2
FOR THE PLAINTIFFS:
3 MR. KELLY D. STEPHENS
State Bar No. 19158300
4 Stephens & Dominitz PLCC
P. O. Box 79734
5 Houston, Texas 77297-9734
281.394.3287
6
MR. ANDREW K. MEADE
7 State Bar No. 24032854
MR. SAMUEL D. HAREN
8 State Bar No. 24059899
Hawash Meade Gaston Neese & Cicack LLP
9 2118 Smith Street
Houston, Texas 77002
10 713.658.9006
11
12
13 FOR THE DEFENDANTS:
MR. NICHOLAS D. MOSSER
14 State Bar No. 24075405
Mosser Law PLLC
15 17110 Dallas Parkway
Suite 290
16 Dallas, Texas 75248
972.733.3223
17
18
19
20
21
22
23
24
25
Exhibit N App. 43
3
1 July 28, 2014
2
3 THE COURT: If all the attorneys would
4 announce themselves and who they represent.
5 MR. MEADE: For the plaintiffs, Andrew
6 Meade, Sam Haren and Kelly Stephens.
7 MR. MOSSER: Nicholas Mosser for 8650 and
8 the remainder of the defendants.
9 THE COURT: Very well. Now I don't know
10 what order you want to take them in. The first one I
11 happen to have on the docket is the motion to transfer.
12 Want to do that one first, want to do another one first,
13 do you --
14 MR. MOSSER: Sorry to interrupt, Your
15 Honor. I prefer to do that one first because I believe
16 the remainder will become moot after that point.
17 THE COURT: Okay. Go ahead.
18 MR. MEADE: On the motion to transfer,
19 Your Honor, you had mentioned that you were pushing that
20 off until after we got our depositions.
21 THE COURT: That's right because there
22 were all those motions to quash.
23 MR. MEADE: They are next week. The
24 depositions are scheduled for next week.
25 THE COURT: That's right. I did say that.
Exhibit N App. 44
4
1 Were these not the ones that there was motions to quash?
2 Have y'all worked some of those out?
3 MR. MEADE: We have depositions set for
4 Monday and Tuesday of next week, Your Honor.
5 THE COURT: Well, let's --
6 MR. MEADE: On the motion to quash.
7 THE COURT: I just assumed you had some.
8 MR. MOSSER: Your Honor, I called and
9 confirmed that this hearing on motion to transfer venue
10 was scheduled for today.
11 THE COURT: Okay, that's fine.
12 MR. MOSSER: Your Honor, we specifically
13 deny the venue facts pleaded by plaintiffs. They have
14 filed no response to any of our specific denials. They
15 have produced no prima facie evidence of any of their
16 venue facts. We allege that venue is mandatory and
17 permissive in Collin County and we have not had any
18 response to our supplemental motion. Their timeframe to
19 respond or amend the pleading is over. And the facts are
20 properly pleaded and alleged. Any facts that are not
21 controverted by opposing counsel are deemed accepted as
22 true. And I believe this court has no other choice but to
23 transfer this case into Collin County.
24 THE COURT: Counsel.
25 MR. MEADE: Your Honor, I actually -- I
Exhibit N App. 45
5
1 don't have a copy of the motion. I didn't know that it
2 was set for today because my understanding from our last
3 hearing was that it was going to be continued and put off
4 until after we were able to get the depositions so as not
5 to allow counsel to basically -- trying to figure out the
6 right way to put it nicely. To play discovery games and
7 continually push off the depositions until after they can
8 get their motion to transfer venue set.
9 I think we have pled sufficient venue facts.
10 I looked at this issue last -- a month and a half ago so I
11 don't remember what the exact facts are but they included,
12 for example, that my clients were contacted by the
13 defendants regarding this investment by the defendants
14 reaching out to the clients in Harris County. And that my
15 clients paid from Harris County $948 thousand and change
16 and that the place for repayment was Harris County. That
17 the reaching out to induce the investment and the location
18 for place of payment alone are sufficient to establish
19 venue here and are dispositive of the issue.
20 If Your Honor is inclined to need more venue
21 facts or more briefing on that issue I would be happy to
22 give it to you. But I think those facts that we have
23 already pled and established are sufficient in and of
24 itself.
25 THE COURT: Counsel, when you got your
Exhibit N App. 46
6
1 notice to him --
2 MR. MOSSER: It's been e-filed, Your
3 Honor.
4 THE COURT: Well, have you got it?
5 MR. MOSSER: Yes, Your Honor.
6 THE COURT: Did you conference with him
7 before you reset it and gave him notice that it was set?
8 MR. MOSSER: We only reset it based on the
9 court's request, we reset it from August 4th to July 28th.
10 THE COURT: That's because y'all were
11 supposed to have already done depositions, right?
12 MR. MEADE: Your Honor, this setting of
13 July 28th was set prior to the last hearing that we had
14 and, Your Honor, at that last hearing because we couldn't
15 -- I was going to take a vacation -- our last hearing I
16 think was June 23rd. I was going to be on vacation and we
17 couldn't get deposition dates set to occur due to Mr.
18 Mosser's father not being able to come to Houston for the
19 depositions until after the date that they had set for
20 their motion to transfer venue. I said -- I requested
21 from the court that we put off the hearing on their motion
22 to transfer venue until after I was able to get the
23 depositions and Your Honor indicated that you would. They
24 never reset their motion but Your Honor passed the hearing
25 orally.
Exhibit N App. 47
7
1 THE COURT: I remember.
2 MR. MOSSER: Your Honor, there was no
3 notice of any of that other than the hearing. If that
4 actually took place in the hearing then I believe that
5 should have been on the docket and addressed on the docket
6 and it should have been reset there. We have no order on
7 any of this, I have no transcript on any of this --
8 THE COURT: I think your dad was on the
9 phone.
10 MR. MOSSER: I believe he was. But I
11 believe this is still properly set. There is no verified
12 motion for continuance.
13 THE COURT: Have you got a certificate of
14 conference where you conferenced with him about this
15 motion?
16 MR. MOSSER: We attempted numerous times
17 to illustrate to each one of these issues.
18 THE COURT: Counsel, I asked you a
19 specific question. You got a certificate of conference on
20 this motion?
21 MR. MOSSER: Yes, Your Honor, I do. As of
22 March 14th we have been trying to transfer this.
23 THE COURT: No, on this one that was set
24 for today.
25 MR. MOSSER: On this one that's set for
Exhibit N App. 48
8
1 today.
2 THE COURT: And you conferenced about it
3 being set for today? Because isn't this -- is this the
4 original one?
5 MR. MOSSER: Yes, Your Honor.
6 THE COURT: Well, but we have had a lot of
7 stuff since then.
8 MR. MOSSER: I supplemented it based on
9 the second amended petition and that's the venue facts we
10 specifically deny. And there has been no response on it.
11 THE COURT: Okay. Well, I am going to
12 continue it until after the depositions just like I told
13 your dad. So let's move to the next one.
14 Okay. To be continued on the court's own
15 motion.
16 MR. MOSSER: Your Honor, we request that
17 the remainder of these motions also be continued until
18 after the motion to transfer venue.
19 THE COURT: Denied.
20 Okay. The next thing I have got is -- because
21 you filed something on July first on your motion to
22 transfer. Did you send that to him?
23 MR. MOSSER: Yes, Your Honor.
24 THE COURT: And you said it was set for
25 hearing today?
Exhibit N App. 49
9
1 MR. MOSSER: I filed all the notices of
2 hearing and I filed supplements.
3 THE COURT: And you conferenced with him
4 that it was set for today?
5 MR. MOSSER: I filed the notice of
6 hearing, Your Honor.
7 THE COURT: Yeah. I see a notice of
8 conference on here.
9 Okay. So going to the next motion that's set,
10 I think was on the subpoena issue, right?
11 MR. MEADE: The Mike Verucchi subpoena
12 issue.
13 THE COURT: Right.
14 MR. MEADE: And Your Honor, we have as you
15 know, we have been attempting to perform written and oral
16 discovery in this case for five months now. And one of
17 the issues was subpoenaing the initial accountant which
18 was Hal Holtman. The defendants sent a letter to Hal
19 Holtman instructing him not to comply with that subpoena.
20 THE COURT: Oh, I remember.
21 MR. MEADE: And telling him to destroy the
22 documents and we had moved to compel and protection on
23 that. And we got those documents compelled. And the
24 defendants have identified in response to request for
25 disclosure their new accountant as Mr. Verucchi. We have
Exhibit N App. 50
10
1 sent a subpoena to Mr. Verucchi and the defendants filed a
2 motion to quash. The exclusive basis of the motion to
3 quash is that it calls for production, our subpoena calls
4 for production outside of 150 miles and thus is outside
5 the subpoena range. The location for production pursuant
6 to subpoena is Mr. Verucchi's offices, not Harris County.
7 And therefore it doesn't violate the 150 mile limitation.
8 The defendants have also represented in a
9 letter that they have provided us with all of Mr.
10 Verucchi's documents. But the only documents that we have
11 been provided with in response to discovery, and this goes
12 to the next motion, too, but I am going to hold off on
13 that for a minute. But it's an important note to
14 remember.
15 The only documents they have provided us in
16 June in response to the court's order on our motion to
17 compel in the Verucchi subpoena is to produce to us -- at
18 the last hearing the court, Mr. Mosser asked that we give
19 the Holtman documents, we had received them, give him a
20 copy and we produced them, we Bates labeled and produced
21 them to him -- we didn't Holtman Bates labeled?
22 MR. HAREN: No --
23 MR. MEADE: So we produced the Holtman
24 documents to Mr. Mosser's firm. Mr. Mosser produced the
25 Holtman backed -- documents back to us with only one page
Exhibit N App. 51
11
1 addition and that was the cover letter. And that's the
2 only thing we have been given. He says I have given you
3 all -- now given you all of Mr. Verucchi's documents and
4 all the financial documents we have in our possession.
5 With all due respect, even if I believe that
6 to be true I'm entitled to production from Mr. Verucchi,
7 and the exclusive basis for the motion to quash being 150
8 mile limitation, it's not valid. Like I said we called
9 for production at Mr. Verucchi's office.
10 MR. MOSSER: Your Honor, I have attempted
11 to resolve this without having a motion to compel. I
12 didn't think it was necessary. I didn't think once we
13 produced the documents and they are basically the same
14 documents. I mean the transfer of accountants in this case
15 was Mr. Holtman was the accountant for 8650. He produced
16 all these documents. After we received them. Those are
17 all the documents that we had in our possession that were
18 responsive to Verucchi's subpoena. Verucchi does not
19 believe -- I have talked to him, he does not have any more
20 documents other than those documents he received directly
21 from Mr. Holtman. Those are the financial records that he
22 has in his possession.
23 THE COURT: But he needs to say it under
24 oath.
25 MR. MOSSER: I believe that without the
Exhibit N App. 52
12
1 need of doing the motion to compel, without the need of a
2 subpoena our production of those same documents are
3 sufficient. Otherwise motion to compel, it's just not
4 necessary based on the fact we have produced all
5 responsive documents. I don't think he needs to say it
6 under oath. We produced them and represent that those are
7 the documents that we have, and of course we are under the
8 obligation to supplement, but those are the documents he
9 received from Mr. Holtman and that's all he's got.
10 THE COURT: So why don't you want him to
11 say that and swear to it?
12 MR. MOSSER: Because I believe that they
13 are required to go through us on proper discovery and not
14 go through and try to circumvent the discovery process by
15 using a subpoena.
16 THE COURT: Well, they are asking a third
17 party, they subpoenaed a third party on a deposition on
18 written questions.
19 MR. MOSSER: In specific attempt to
20 circumvent requesting the documents from us and allowing
21 us to control the process and the information released. I
22 believe it's our right to object and make the call for
23 privileges and specifically they are asking for every
24 social security number of every employee of 8650 and every
25 other entity involved in this. We have made that
Exhibit N App. 53
13
1 objection and the objection has not been put before this
2 court and I do not believe it's proper to produce that
3 volume of personal information without redacting it. And
4 that's what we did when we took that information, we
5 redacted that information and produced it back.
6 THE COURT: Well, it looks like to me they
7 would prove these up under business records with this
8 subpoena.
9 MR. MEADE: One of the issues that we are
10 trying to do, Your Honor, is to prove up the business
11 records through the subpoena, of course. But No. 2, what
12 I just heard again blows my mind and that is that counsel
13 says no, you can't go request documents directly from a
14 third party. We get to control the information that you
15 are allowed to get. And we are going to take the
16 documents from a third party. And the only objection they
17 raised in response to Mr. Verucchi, again the subpoena,
18 was 150 mile range. No privilege issue on this one like
19 Holtman, anything like that. And now what they are saying
20 is we are going to take the documents from him. We are
21 going to just represent to you in a letter that this is
22 all he has, trust us on it, and we are going to go through
23 and redact some information and control the flow of the
24 information back to you.
25 They haven't disclosed anybody else who is an
Exhibit N App. 54
14
1 accountant for the enterprise. They have not, and I find
2 this very interesting, supplemented their discovery
3 because we are going to get to that next as they can
4 concede they have the obligation to do.
5 No, they don't get -- one of the reasons you
6 go to third parties to get things is so that the other
7 side doesn't -- if for example you don't 100 percent trust
8 them to disclose documents, and I don't, you don't have to
9 go directly to that party. You can go to third parties in
10 possession of the documents.
11 And with Mr. Verucchi in particular, at the
12 last hearing the reason they were saying they didn't have
13 to produce these records was Mr. Verucchi had them and he
14 was not within their possession -- it was not in his
15 possession, custody and control. That's the only
16 objection. Our own accountant.
17 Now they are saying, no, we get to go to that
18 accountant, get the documents, redact them, choose which
19 documents to give you.
20 I mean, we're entitled to go to the third
21 party. They raise one objection, it's invalid, and so the
22 motion to quash should just be overruled.
23 THE COURT: Do you want to say anything
24 else, counsel?
25 MR. MOSSER: Your Honor, I don't believe
Exhibit N App. 55
15
1 the motion to quash was invalid, however I withdrew it on
2 the representation that I produced those documents that
3 are responsive to his subpoena request. I don't believe
4 just like I can't --
5 THE COURT: So did you set up another date
6 where they could go do it?
7 MR. MOSSER: No, Your Honor, I don't
8 believe it was necessary. I believe that the only thing
9 that they wanted out of this was documents, documents that
10 Mr. Holtman came and produced to them months before we
11 ever got copies of those documents and those documents are
12 all they seem to care about.
13 The only other thing, the only other reason
14 that Mr. Verucchi has complained about is the volume of
15 papers that opposing counsel is delivering on him and
16 interfering with the operation of his business. And this
17 is the reason we believe they are subpoenaing Mr.
18 Verucchi.
19 If they really truly wanted these documents
20 from us then they would have made the request, they would
21 have objected to or they would have put a motion to compel
22 on the remainder of our objections out there and compelled
23 us to produce those documents.
24 I produced them both in response to his
25 subpoena and in response to the discovery requests that
Exhibit N App. 56
16
1 they made and I don't believe either of these motions to
2 compel are proper today because we have done everything
3 that they are seeking to accomplish.
4 THE COURT: You are going to stipulate
5 that they are the business records, and not ---
6 MR. MOSSER: As far as Mr. Holtman has
7 prepared the business records and they are accurate based
8 on Mr. Holtman, I think -- 7,000 pages of documents, Your
9 Honor, I have not had an opportunity to go and verify that
10 they are accurate and correct, and Mr. Holtman has done
11 his job correctly.
12 THE COURT: So you don't know.
13 MR. MOSSER: I don't know yet. 7,000
14 pages, Your Honor.
15 THE COURT: So these are the same
16 documents that the CPA in New Braunfels --
17 MR. MEADE: Hal Holtman.
18 THE COURT: That you told them to destroy?
19 MR. MOSSER: I told him to deliver copies
20 to my office and destroy his copies. I did not tell him
21 to destroy the documents, Your Honor.
22 THE COURT: Your motion is granted other
23 than I did strike out the sanction. Okay. Next.
24 MR. MEADE: Next is our motion to compel
25 the discovery that Mr. Mosser said we should have prepared
Exhibit N App. 57
17
1 and served on them and should have been compelled. And
2 actually this isn't a motion to compel, this is a motion
3 to enforce the court's order on our prior motion to
4 compel.
5 We have served the defendants with request for
6 production for all of their financial records. And, Your
7 Honor, they refused to produce them under a myriad of
8 objections. We filed a motion to compel. That motion to
9 compel was heard on June 23rd. Your Honor overruled the
10 objections and ordered the production of the documents.
11 Since that time, we wrote a letter to
12 defendants asking them to produce the documents. They
13 didn't. We wrote them another letter asking them to
14 produce the documents and they responded saying we didn't
15 get your first letter, not agreeing to produce anything.
16 Subsequently in the lead-up to today's hearing
17 they produced the Verucchi Holtman documents with cover
18 letter reproducing back to us the documents we have
19 already produced to them in the case and informing us that
20 they are standing on the objections that they
21 previously -- that the court previously overruled other
22 than the objection as to privilege because in their view
23 the only objection before the court although we asked the
24 court to overrule and the court did all of their
25 objections to the request for production. They are taking
Exhibit N App. 58
18
1 the position that the only objection that was overruled
2 was the objection as to the accountant privilege.
3 And again we are asking for a lot of financial
4 information. We have already talked about why we need the
5 financial information in the prior hearing. The court's
6 already compelled the production of it. And the
7 defendants have just refused.
8 I am now taking their depositions next Monday
9 and Tuesday, so it's a little bit urgent that we get these
10 documents.
11 And in response to Mr. Mosser's previous point
12 about the on-going duty to supplement, that's one of the
13 primary issues here. Because they have taken -- the
14 defendants have taken the position that, look, you got the
15 snapshot of the way that the financial picture of this
16 enterprise existed at the time that Mr. Holtman produced
17 documents in April. And therefore you have all the
18 records. But this is an operating business enterprise
19 that has daily -- it's a restaurant. It has daily
20 financial records.
21 We also don't have any of the tax returns, of
22 course, as the court's already -- so the issue is that we
23 need everything that the defendants have, every financial
24 document that they have. And yes, they do have a duty to
25 supplement and we are going to be encouraging them through
Exhibit N App. 59
19
1 this process to continue to supplement the records.
2 But they need to give us everything they have
3 up until today's date and they need to do it like
4 yesterday so that I can get ready for the depositions on
5 Monday and Tuesday.
6 The court has already ordered this. So we are
7 not here on a motion to compel but a motion to enforce.
8 This is why we have asked for a penalty to be imposed of a
9 thousand dollars a day until the Court's prior order is
10 compiled with.
11 MR. MOSSER: Your Honor, only three
12 objections were placed before the court during the last
13 motion to compel. The only three objections -- opposing
14 counsel misstates most of the correspondence between us.
15 The only three objections that were at point at the last
16 motion to compel and they are even subsections of his
17 motion are there is no accountant-client privilege in
18 Texas which is incorrect. There is no tax return
19 privilege which is incorrect and not entirely what I said
20 I don't believe. I believe that their confidential and
21 privileged information and private information and the
22 bank records are discoverable.
23 We didn't object that the bank records are
24 discoverable. We objected that the way they produced them
25 are not the proper method of production. There is cases
Exhibit N App. 60
20
1 that we cited in our response to the motion to compel
2 that, A, bank records are the bank's records, not the
3 client's records.
4 Those are the only three objections placed
5 before the court. We have received no signed order and no
6 order indicating from the court oral or otherwise
7 indicating that all of the objections either before or not
8 before the court were overruled. So our remaining
9 objections were still in place.
10 Now despite that, I have produced the
11 documents that are responsive to their specific requests.
12 If they don't have the tax returns that will fall to Mr.
13 Holtman and he should be here explaining why he didn't
14 produce the tax records. We have produced everything we
15 received from Mr. Holtman. He was in possession of those
16 documents and we have done everything possible we should
17 do.
18 I sent letters to opposing counsel saying I
19 don't see the need for this hearing given that I have
20 produced as much information as I have responsive to your
21 request. Now I have redacted some. I redacted
22 information dealing with other employees' social security
23 numbers. I don't believe that's proper to produce any
24 documents with other people's social security numbers on
25 it. It's an invasion of their privacy and as we have seen
Exhibit N App. 61
21
1 with the subpoenas to third parties, all they intend to do
2 is harass the remaining employees. They are seeking out
3 documents rather than going through the normal discovery
4 process by subpoenaing or using back channels in order to
5 get documents from Mr. Holtman and subpoenaing Mr.
6 Verucchi and including him on things that should go
7 through us.
8 I believe it's my responsibility to object and
9 help try to control the flow of documents that are not
10 permissible. That way I don't waive my objections.
11 THE COURT: Did you give me an order to
12 sign on this?
13 MR. MEADE: We did give Your Honor an
14 order to sign on the prior motion to compel. I don't
15 believe that Your Honor did ever sign the order. But you
16 did -- and one of the issues was you did order the
17 production and overruled all of their objections on the
18 record.
19 Your Honor did not give them a deadline.
20 Which is why we wrote them afterwards saying please do it
21 within 10 days. And when they didn't do it within 10 days
22 we said, you know, please -- previously, you know, do it
23 within 10 days, again giving them 20 days.
24 But the point is we still don't have the
25 production. All I am hearing from the other side is, hey,
Exhibit N App. 62
22
1 we gave you the Holtman documents, I mean we have given
2 you -- whatever you can discover, this is why you go to
3 third parties because the only thing that they are willing
4 to give us is what we have already discovered from third
5 parties.
6 And they are not going to stand here I
7 believe -- nobody is going to stand here and take the
8 position there is not a single financial record in this
9 case after April of 2014. Nor a single financial record
10 that wasn't in the possession, custody and control of Mr.
11 Holtman. They have certainly not certifying that that's
12 true. And if they are going to take the position that the
13 universe of documents in this case is going to be the
14 Holtman production and that they are never going to show
15 up with another one at another hearing or trial or
16 deposition, I mean that would be an interesting position
17 for him to take. And we can try the case on the Holtman
18 documents but they are not -- they are certainly not the
19 world of responsive documents.
20 This is an on-going like I said business
21 enterprise. A restaurant that's open six or seven days a
22 week that has cash registers, bank accounts and generates
23 financial documents.
24 On the tax return issue, no, we didn't get tax
25 returns from Mr. Holtman. If the defendants do not have a
Exhibit N App. 63
23
1 tax return despite being an operating business enterprise
2 since 2012 then they are certify in a response there are
3 no responsive documents in the proper place, in response
4 to the request for production. Then we will know there
5 are no tax return documents. Not just simply saying look
6 at the Holtman documents. And avoiding addressing the
7 Court's prior ruling.
8 THE COURT: Well, I have one concern with
9 it, and that is your motion is to enforce the court's
10 order and if I didn't sign an order, then I have got a
11 problem with that. Where is the order?
12 MR. MEADE: And the thing is, Your Honor,
13 you certainly ordered it orally but you didn't put it in
14 writing.
15 THE COURT: I know I ordered an orally but
16 I need to sign an order if I did not.
17 There is not one in the --
18 MR. MEADE: I'm sorry, Your Honor, I
19 didn't mean to cut you off.
20 THE COURT: Well, let me just see if we
21 can -- did you file it electronically, or what did you do?
22 MR. MEADE: Well, I think we are required
23 and did file it electronically. I think we had to do
24 everything electronically.
25 THE COURT: Well, I am going to pull it up
Exhibit N App. 64
24
1 and then I don't have to sign yours that's been marked on.
2 MR. MEADE: The one issue I want to
3 mention here, Your Honor, we that did withdraw at the last
4 hearing our request for the court to assess attorneys fees
5 against the defendants and their counsel. That order
6 includes that request and we did withdraw that request.
7 THE COURT: All right. So let's see what
8 we have got electronically filed. So you think you filed
9 it when you were here June 23rd.
10 MR. MEADE: Should have been filed in
11 advance of that.
12 MR. HAREN: It would be the proposed order
13 on response to the motion to stay all matters and our
14 third motion to compel.
15 MR. MOSSER: Your Honor, I have a clean
16 copy with some hole punches in it if you would like to see
17 that. I have a proposed order. My objection is that only
18 three issues were brought up in the motion to compel, not
19 all of our objections.
20 THE COURT: Well, you ordered a
21 transcript, right?
22 MR. MOSSER: Yes, Your Honor.
23 THE COURT: Have you got it with you?
24 MR. MOSSER: No, we have not received the
25 transcript.
Exhibit N App. 65
25
1 THE COURT: I thought you said in there
2 that you did have the transcript.
3 MR. MOSSER: I have a transcript from the
4 temporary injunction hearing. That's the only transcript
5 we have managed to get yet.
6 THE COURT: As I now recall, my court
7 reporter is now on vacation. There was some issue of
8 y'all not wanting to pay for it.
9 MR. MOSSER: No, Your Honor, we sent a
10 check out the day we got the invoice from her.
11 THE COURT: Well, but I remember that
12 conversation "that's not the way we do it in Dallas or our
13 word is good and therefore" --
14 MR. MOSSER: I don't believe that
15 occurred.
16 THE COURT: Well, I believe her, and I
17 notice y'all had referenced something in your response
18 about how long it took you to get it. As I recall the
19 reason was it took her a long time to get a check. She
20 wasn't going to start on it till she got a check.
21 MR. MOSSER: Your Honor, I have a
22 certified letter indicating when she received the check
23 and when she deposited the check so I know we have sent
24 out a check for that transcript.
25 THE COURT: For the one that you have?
Exhibit N App. 66
26
1 MR. MOSSER: For the one that took about
2 two or three months to get. I do not know about the other
3 one. I know we sent out the check from that as well.
4 THE COURT: Once you sent out the check
5 how long did you take to get it?
6 MR. MOSSER: About two or three months.
7 Once sent it out and saw it was deposited.
8 THE COURT: Okay. We have been busy.
9 That's the only order? This isn't it. Is there one that
10 I haven't signed that was filed before June?
11 MR. HAREN: I believe it was filed on June
12 11, 2014, envelope No. 1510270.
13 THE COURT: Motion to stay and plaintiff's
14 third motion to compel, that was it?
15 MR. MEADE: Correct. The way that that
16 had happened procedurally, Your Honor, was that the
17 defendants filed a motion to stay while they were awaiting
18 the transcript of the temporary injunction hearing because
19 they wanted to stay all discovery and proceedings in this
20 action until they could have their motion for venue set.
21 We pointed out to the court that the rules specifically
22 state that discovery proceeds while you await a motion on
23 motion to transfer venue and the court overruled that
24 objection as well.
25 THE COURT: Obviously I didn't grant any
Exhibit N App. 67
27
1 sanctions.
2 MR. MEADE: No, we withdrew that request,
3 Your Honor.
4 THE COURT: Okay.
5 MR. MOSSER: Your Honor, if I may also
6 make an objection. Your court has local rules that
7 require certain level of conference before any motion.
8 These two motions have not been conferred on. They
9 represent that only one email was the attempt. They never
10 made multiple attempts as required under the rules and I
11 believe these are improper to be heard today over my
12 motion to transfer venue which was set.
13 THE COURT: You didn't do that on your
14 motion to transfer.
15 MR. MOSSER: I beg to differ, Your Honor.
16 I have a certificate of conference --
17 THE COURT: Back from March, not for this
18 setting. And I just saw one on theirs.
19 MR. MOSSER: It says that they made one
20 e-mail attempt and that's it.
21 THE COURT: I have seen several letters
22 back and forth.
23 MR. HAREN: Your Honor, I can provide you
24 with multiple letters reminding them of their obligations
25 under the court's order and asking them to withdraw their
Exhibit N App. 68
28
1 motion to quash because their objection was invalid.
2 THE COURT: Yes.
3 MR. MEADE: Your Honor, I think in the
4 context of what you are seeking from the relief from the
5 court should inform the court and what conference is
6 necessary. When you are seeking to compel discovery that
7 the other side has, you know, repeatedly quashed, quashed
8 the subpoenas, quashed the depositions, refusing to
9 provide discovery and written you letters saying that they
10 are not going to provide it to you, you know, sending them
11 a letter that says, look, we are filing this motion and we
12 would like to confer, we tried to call, nobody called back
13 and then sending me a letter saying one phone call wasn't
14 enough, so I wrote my phone number on the front of it, on
15 the front of their letter and said call me at this number,
16 my direct line and I sent it back to them. I never heard
17 back.
18 I am not going to spend my day making phone
19 calls to people who don't want to talk to me and don't
20 want to cooperate in the discovery and litigation
21 proceeding.
22 THE COURT: When is your first deposition?
23 MR. MEADE: Monday, Your Honor. Taking
24 two depositions on Monday, two individual depositions on
25 Monday, corporate representative depositions on Tuesday.
Exhibit N App. 69
29
1 THE COURT: Okay. Here is what I have
2 done. I have signed this order that was prepared and
3 filed back on June 11th. I have scratched out the court
4 finding that defendant's counsel has abused the discovery
5 process, that paragraph and the attorneys fees paragraph,
6 I have scratched those out and then I have added the
7 documents must be produced by August 1, 2014 at 5:00 p.m.
8 MR. MEADE: Thank you, Your Honor.
9 THE COURT: That means you have to work --
10 MR. MEADE: And one -- because I have just
11 been dealing with it for a little while, produce doesn't
12 mean put in the mail at 5:00 o'clock p.m., sent from
13 Dallas to arrive several days later but I would like that
14 they be produced at my offices. And they can produce them
15 electronically as we do. That's the best method, of
16 course. But they be produced at my offices by 5:00
17 o'clock so I can get ready for depositions.
18 Thank you, Your Honor.
19 THE COURT: Okay. I added "at plaintiff's
20 attorneys office".
21 MR. MEADE: Thank you, Your Honor.
22 THE COURT: You understand that, counsel?
23 MR. MOSSER: I object to it. I believe
24 the method of service is proper under Supreme Court rules
25 method of service.
Exhibit N App. 70
30
1 THE COURT: But do you understand my
2 order?
3 MR. MOSSER: Yes, Your Honor.
4 THE COURT: Here is your copy. Counsel,
5 here is your copy.
6 MR. MEADE: Okay. Next, and I am going to
7 have my associate deal with the next issue. The
8 deposition topics of the corporate representatives.
9 Before we get to that issue, we have noticed a
10 site inspection, Your Honor, for August 1st. The defense
11 counsel has stated that they aren't going to allow it to
12 go forward at 8650 Frisco. They have not objected to it
13 formally.
14 THE COURT: I don't think that's on --
15 MR. MOSSER: I don't think either of these
16 issues are before the court today.
17 THE COURT: I don't think so.
18 MR. MEADE: We may be back down here
19 shortly, Your Honor.
20 THE COURT: I am sure you will.
21 MR. MEADE: I will let Mr. Haren address
22 the deposition.
23 MR. MOSSER: I don't believe that's before
24 the court either, Your Honor.
25 THE COURT: I do have that on here.
Exhibit N App. 71
31
1 MR. MOSSER: I do not have notice of that.
2 THE COURT: Well, maybe I don't. Motion
3 to compel production which I just did.
4 MR. HAREN: It's styled as plaintiff's
5 response to defendant's supplemental objections to
6 deposition topics.
7 THE COURT: Well, I have your motion but I
8 don't know that I have a docket on that issue. So I
9 didn't set that for hearing today.
10 MR. MOSSER: Your Honor, if it helps I
11 called the court and inquired of the hearings set for
12 today. A motion to compel and motion to enforce the
13 court's order and I believe my motion to transfer venue
14 and those were the three set.
15 THE COURT: I mean I have got it pulled.
16 I have got defendant's supplemental objections to
17 deposition topics that was filed on 7-21. And I have got
18 plaintiff's response but you don't think it's set?
19 THE CLERK: I don't know what this is.
20 THE COURT: Yeah. I see it says our
21 comment -- clerk does this. Filed 7-18, 2 on docket. Now
22 I don't know because I had a lot more than two motions I
23 read early this morning.
24 MR. MEADE: This docket has three motions
25 set, Your Honor, and my associate does have a copy of the
Exhibit N App. 72
32
1 notice of hearing on this.
2 THE COURT: Okay. Let me see it.
3 When was that filed with the court?
4 MR. HAREN: I believe that was filed
5 contemporaneous with the motion.
6 THE COURT: Okay. Which was?
7 MR. HAREN: 7-22 at 8:04 p.m., envelope
8 1912898.
9 THE COURT: So let me ask you this. Is
10 this one of the depositions y'all are taking next week?
11 MR. MEADE: These are the corporate
12 representatives depositions to occur on Tuesday of next
13 week, yes.
14 THE COURT: Okay. So they need to be
15 heard.
16 MR. MEADE: Yes.
17 THE COURT: Okay. You filed your -- I
18 mean obviously on the 21st you filed a supplemental.
19 Tell me where because I don't see -- I didn't
20 have it in my notebook that my clerks prepared and I'm
21 going back and looking, where -- who is Mike Verucchi?
22 MR. HAREN: Mike Verucchi is the CPA who
23 we are attempting to subpoena documents from.
24 THE COURT: Okay. So that doesn't have
25 anything to do with the corporate rep?
Exhibit N App. 73
33
1 MR. HAREN: No, Your Honor.
2 THE COURT: All right. That's what I
3 thought.
4 So the first thing I have got on deposition
5 topics is filed on 7-21 which I have in my notebook,
6 defendants' supplemental objections to deposition topics.
7 When was the original filed?
8 MR. MOSSER: It was filed in response to I
9 believe the original set of deposition topics. I'm not
10 sure if it was the original or second set.
11 THE COURT: What was the date?
12 MR. HAREN: The original objections were
13 filed on June 5th in response to the second set of
14 notices.
15 THE COURT: Let me go back. I see it.
16 Okay.
17 Okay. I'm ready to listen.
18 MR. MOSSER: Your Honor, if I could get a
19 couple of moments to at least pull up the documents?
20 THE COURT: Sure, go ahead.
21 Tell me when you are ready, counsel.
22 MR. MOSSER: I am just looking at the
23 supplement, Your Honor.
24 THE COURT: I have got the supplement. Do
25 you want me to hand you my copy?
Exhibit N App. 74
34
1 MR. MOSSER: I have got the original
2 objections. I was just looking for the other one.
3 THE COURT: Here it is, counsel.
4 MR. MOSSER: May I approach? Thank you,
5 Judge.
6 THE COURT: Okay. Let's go. We have
7 other people waiting.
8 MR. HAREN: Your Honor, I think you are
9 familiar with the background so we can --
10 THE COURT: I am.
11 MR. HAREN: -- save quite a bit of that.
12 We have noticed several topics for deposition
13 of their corporate representatives. They objected to
14 several of these.
15 First is a topic about the ownership and
16 operation of 8650 Frisco which is the entity that operates
17 the restaurant.
18 We have asked all of the defendants to testify
19 as to their knowledge of the, of their ownership -- sorry,
20 asked all the defendants to testify as to their knowledge
21 of the ownership and operation of 8650 Frisco. We believe
22 this is necessary in order for us to see what, get all of
23 the information we can about 8650 Frisco since the
24 ownership and operation of the entity is the whole point
25 of the lawsuit as well as to see what these entities know
Exhibit N App. 75
35
1 about the person they are receiving distributions and
2 assets from. Because some causes of action are that they
3 have received -- that 8650 Frisco has improperly diverted
4 its assets to other companies and these companies have
5 received them. We want to know if they knew who they were
6 getting it from and what they knew about the circumstances
7 of their receivable property.
8 The next objection are to things that have
9 never happened. They say that this company has never had
10 dealings with plaintiffs, therefore it shouldn't be forced
11 to put up a corporate representative.
12 That's all fine and good but that's an answer.
13 If they have no knowledge of something they should testify
14 under oath we have no knowledge of that, and that should
15 be a pretty easy topic to prepare their representatives
16 for.
17 The next is acceptance of funds and furniture
18 from plaintiff that this -- this transaction is a mess.
19 People -- different entities gave different money to
20 different entities and it's hard to tell who got what and
21 we would like to know what each individual defendant
22 received from the plaintiff so we can keep our cause of
23 action straight and our damages model centered.
24 The next category is the awareness of business
25 operations of plaintiffs. This is relative to their
Exhibit N App. 76
36
1 motion to transfer and specifically their allegations that
2 we have committed perjury in any number of ways regarding
3 our own business operations.
4 Their views of what our business operation is
5 discoverable because it directly rebuts what their
6 arguments are.
7 Next is the ownership of a trademark. They
8 say there is no trademark. And we would just like them to
9 say that under oath.
10 Next there is testimony as to the ownership of
11 8650 Frisco. We think all of the defendants should have to
12 testify as to their knowledge of that because it's a
13 relevant fact and because we think all of the defendants
14 may actually claim to own it at some point.
15 And finally there is questions about corporate
16 governance of defendants, that this is relevant because we
17 need to see how these companies operate because we are
18 alleging alter ego and various veil piercing theories and
19 we need to see how they operate so we know how to pierce
20 it.
21 And those were all of their objections.
22 THE COURT: Counsel, you want to respond?
23 MR. MOSSER: Your Honor, I don't believe
24 we have ever said that there is no trademark. I believe
25 we said certain entities don't own a trademark. We have
Exhibit N App. 77
37
1 said --
2 THE COURT: Say whatever your people need
3 to say under oath. It's a question. They will answer
4 whatever they answer.
5 MR. MOSSER: I think launching into a
6 discovery process that is patently overbroad. Seeking
7 information about entities that are not involved in a
8 transaction that they don't even understand what's going
9 on, I don't think it's proper to continue and bring in all
10 of these entities into a process of discovery and set them
11 up for a corporate representative deposition if they had
12 no involvement in the process. If they had no involvement
13 in any of the alleged transactions.
14 I think we said that several times in response
15 to either admissions or in our answer and that has been
16 filed.
17 THE COURT: But they are all defendants,
18 right?
19 MR. MOSSER: Improperly, yes, Your Honor.
20 MR. MEADE: And Your Honor, just to
21 satisfy the curiosity I will just walk through who the
22 defendants are real quickly and why they are the
23 defendants. 8650 Frisco LLC. That's the entity that we
24 gave $948 thousand and change to which we allege an
25 ownership interest and which there are some documents
Exhibit N App. 78
38
1 going back and forth. That entity does business as Estilo
2 Gaucho Brazilian Steakhouse, okay? There is a trademark
3 for that. That trademark is in defendants Bahtche,
4 BAHTCHE, LLC. For some reason, and Bahtche is owned by
5 defendants Claudio Nunes and David Jeiel. David Jeiel and
6 Claudio Nunes are defendants, also known as Mandona LLC.
7 Mandona LLC operates and manages 8650 Frisco LLC.
8 Galovelho LLC, the other defendant, the last remaining
9 one, is owned by Claudio Nunes and David Jeiel Rodriguez
10 and that is the entity that holds their ownership interest
11 in 8650 Frisco, LLC. I believe I have got that corporate
12 structure right but I would like to examine the defendants
13 on that corporate structure.
14 THE COURT: Okay.
15 MR. MOSSER: Your Honor, if they would
16 have pled that, that would be fine to make this argument
17 now. They have not pled that recitation of any of these
18 facts. They have merely said plaintiffs and defendants
19 most of the time in their petition.
20 THE COURT: I mean I have heard that
21 before. This isn't the first time I have heard that, how
22 they think it all links up and, you know, the discovery is
23 going to flesh it out; either it is or it isn't. I am
24 sure if they find out that as you allege there is an
25 improper party, then they are going to probably dismiss
Exhibit N App. 79
39
1 them. Because nobody wants to cloud the case.
2 Okay. I'm going to order the --
3 MR. MOSSER: Your Honor, if I may make my
4 record though as to the objection.
5 THE COURT: Yes.
6 MR. MOSSER: We make the objection as to
7 the ownership and operation of 8650, because 8650 alone
8 should be charged with informing the parties on the
9 ownership and operation of 8650. I should not have to
10 have an unrelated entity like Bahtche describe the
11 ownership and operation of another entity like 8650.
12 I have used the example of -- opposing counsel
13 objects to my example of trying to depose Ford on
14 Microsoft's ownership and operation. I believe entities
15 are set up distinctly to be separate entities under the
16 Business Organizations Code and the corporate rep from one
17 of the entities that is that entity that they are trying
18 to get this information on should be deposed as to those
19 issues. I don't think it's proper just like it's not
20 proper to serve a discovery request on Bahtche to try to
21 get 8650's documents and records.
22 The Supreme Court case law that deals
23 specifically with that issue and I believe that comparison
24 is apt to deposition topics as well. The specific details
25 of the discovery or the deposition topic should be limited
Exhibit N App. 80
40
1 to ones that those corporate reps are charged with that
2 knowledge on.
3 The distribution and assets of 8650, if 8650
4 made distributions or -- distributions of either funds or
5 assets then 8650 is capable and able to talk about it. We
6 shouldn't have to produce a corporate rep for all of this
7 to say, no, we didn't do this. This is 8650's
8 distribution, operation of their company is the one that
9 they are trying to get the information on.
10 Similarly, the dealings with the other
11 parties. As I have said, we have made that statement
12 affirmatively that two entities, I believe Mandona and
13 Bahtche, the two we have represented, have never had any
14 dealings with any of the plaintiffs. Those entities are
15 there for business organizations purposes and I don't
16 believe the proper party.
17 I have got to wait a certain amount of time in
18 order to file no-evidence summary judgments on this but if
19 there is no document that they have that proves the
20 relationship and dealings between those entities then I
21 believe that's going to be the next course of action.
22 THE COURT: But counsel, that's why they
23 want to depose them.
24 MR. MOSSER: They don't have any documents
25 that support this. This is a fishing expedition.
Exhibit N App. 81
41
1 MR. MEADE: Your Honor, I have got over
2 7,000 documents. A lot of them support -- I didn't come up
3 with this structure out of thin air. Almost humorous
4 aspect to the position that defense counsel has taken, if
5 this was the only issue I was having to deal with from
6 them I would probably laugh about it. They have told me
7 that one corporate representative is going to testify on
8 behalf of all of these different entities. David Jeiels
9 Rodrigues, the defendant, he is going to be the corporate
10 representative for all these defendants next Tuesday.
11 Well, to then say, well, wait, Mandona has no knowledge of
12 8650 Frisco's dealings but that David Jeiel Rodrigues is
13 going to testify as to the corporate representative for
14 Mandona and 8650 Frisco but 8650 Frisco has knowledge of
15 it, it blows my mind.
16 I want to find out what the defendants know
17 about the structure. I have got a bunch of documents I
18 want to cross examine them on and I have got some
19 open-ended questions and I would like to get their answers
20 to. And I need each defendant to give me their position.
21 And if the position is we don't know from each defendant,
22 that's fine, too. They can stick to it. But they have
23 got to answer the question. I need it from each one. For
24 example, 8650 Frisco may have given an asset, somebody
25 else received it. I want to know what they gave as
Exhibit N App. 82
42
1 reciprocity for receiving that, the circumstances under
2 which that happened. There is a lot of transactions here.
3 There is going to be a lot of discovery; we are just
4 getting started.
5 THE COURT: Anything else?
6 MR. MOSSER: I have never even gotten a
7 chance to go through the rest of my objections
8 THE COURT: Go ahead.
9 MR. MOSSER: I'm glad opposing counsel
10 thinks this is humorous. The business code says these are
11 separate entities. They are not a method to amalgamate
12 the entire transaction into one entity.
13 THE COURT: Counsel, they have all been
14 sued; they are all defendants.
15 MR. MOSSER: I understand, Your Honor.
16 The knowledge of the corporate rep is the entity's
17 knowledge. The entity's knowledge is separate information
18 from Mr. Jeiel. And opposing counsel can find this as
19 humorous as he likes, but the entity's knowledge is
20 separate from that as the individuals testifying. It's
21 separate from that of the other entities testifying.
22 It's improper to ask an entity about
23 information that is not under their possession. It's
24 improper to ask a corporate rep of one entity about the
25 operation of another. Because it creates very fuzzy lines
Exhibit N App. 83
43
1 trying to make that distinction and I imagine opposing
2 counsel will be back here trying to say we have inflated
3 these issues and they are improperly denying questions
4 that they shouldn't be denying.
5 We are maintaining that the entities are
6 separate and the knowledge of one corporate rep is
7 attributed to that corporation or entity. They'll all see
8 in this case, and we are going to keep that position
9 throughout this case.
10 THE COURT: I understand. So here is what
11 I understand you are going to do and I think you have
12 every right to do this. You are going to designate the
13 same corporate rep for all the defendants.
14 MR. MOSSER: Yes, Your Honor. I think we
15 have already done that as well.
16 THE COURT: Okay. And so when he goes in
17 to give one deposition he is going to have on his 8650
18 Frisco LLC d/b/a --
19 MR. MOSSER: Hat.
20 THE COURT: -- Gaucho Brazilian Steakhouse
21 hat, right?
22 MR. MOSSER: Yes, Your Honor.
23 THE COURT: They are going to ask him
24 questions.
25 MR. MOSSER: Yes, Your Honor.
Exhibit N App. 84
44
1 THE COURT: And he is going to either know
2 something or he doesn't.
3 MR. MOSSER: Yes.
4 THE COURT: And then we're going to take
5 the corporate representative for Mandona LLC, right?
6 MR. MOSSER: Yes, Your Honor.
7 MR. MEADE: I think, Your Honor, correct
8 me if I'm wrong because I don't generally put out the
9 notice of deposition but I think I may have noticed them
10 all at one time because they said they were going to
11 notice, present one person as the corporate
12 representative. We are going to have to be -- I guess I
13 am going to have to be a little bit creative about how to
14 ask those questions during the deposition.
15 THE COURT: I think you are going to have
16 to ask them separately.
17 MR. MEADE: Yes, I think I will, Your
18 Honor.
19 THE COURT: Assume he is going to put on
20 his Mandona hat and they are going to ask him a set of
21 questions. And as the Mandona representative, he may or
22 may not know the answers.
23 MR. MOSSER: Yes, Your Honor, and that's
24 what my limitations on these requests are. The questions
25 that are directed at 8650 should only be directed at 8650.
Exhibit N App. 85
45
1 THE COURT: They will only be directed at
2 8650. And the Mandona ones will be directed at Mandona
3 LLC and the Galovelho LLC corporate representative will
4 represent under oath what he knows as the corporate rep
5 for that corporation. And the Bahtche LLC representative
6 will answer the questions as a representative of that one
7 which -- and I understand. He may be able to answer them
8 as to 8650 and not answer them to the others. I don't
9 know.
10 MR. MOSSER: Yes, Your Honor.
11 THE COURT: But I understand he is going
12 to be -- one person is going to be putting on those
13 different hats.
14 MR. MOSSER: Yes, Your Honor.
15 THE COURT: Is that correct?
16 MR. MOSSER: Yes, Your Honor.
17 THE COURT: And then what about the Nunes,
18 Claudio --
19 MR. MOSSER: Claudio Nunes?
20 THE COURT: Nunes and Mr. Rodrigues, are
21 they giving depositions?
22 MR. MEADE: I am taking their depositions,
23 Your Honor, on Monday and they are not corporate
24 representatives in that capacity.
25 THE COURT: So they will be individual.
Exhibit N App. 86
46
1 And so you are going to have to separate them out, the
2 corporate representatives, and what I'm understanding is
3 going to happen is if they are corporate, they are going
4 to send the same corporate rep, one guy for all these
5 corporations and he is going to answer for that
6 corporation.
7 MR. MEADE: Correct, Your Honor.
8 THE COURT: And so you just need them --
9 I'd do the ones on one and then I would end that
10 deposition and then I would start another.
11 MR. MEADE: I think that's the best way to
12 do it, Your Honor.
13 THE COURT: Okay.
14 MR. MOSSER: Two more objections to go
15 through, Your Honor.
16 THE COURT: Okay.
17 MR. MOSSER: Our views of the operations
18 of plaintiff. Their company, they know how it's operated.
19 It's not our company, we don't know how they operate it.
20 THE COURT: Then all you have to say is
21 you don't know.
22 MR. MOSSER: I think the proper procedure
23 is to limit this on overbreadth and fishing expedition
24 because we don't know anything about how they operate
25 their company.
Exhibit N App. 87
47
1 THE COURT: Well then just say that under
2 oath. Your corporate rep says he doesn't know.
3 MR. MOSSER: Similarly with the acceptance
4 of funds and furniture from plaintiff, plaintiff should
5 know who they sent stuff to.
6 THE COURT: So should your people. There
7 could be a dispute about that. My guess is there is a
8 dispute about it. So in that case they know what they
9 think they sent, they want to know what your guy thinks
10 they got from these people or they didn't get anything.
11 MR. MOSSER: Yes, Your Honor. Got to make
12 my record, Your Honor, and those are my objections.
13 THE COURT: I understand.
14 MR. MEADE: I think the simple aspect, I
15 mean we gave them $948 thousand. I guess, what do they
16 think we got for that? Exactly, Your Honor.
17 THE COURT: That's going to be one of your
18 questions.
19 MR. MEADE: Absolutely, Your Honor.
20 THE COURT: What else?
21 MR. MOSSER: Those are my objections, Your
22 Honor.
23 THE COURT: Your objections are overruled.
24 Motions granted.
25 I signed an order, order compelling testimony.
Exhibit N App. 88
48
1 MR. MEADE: Thank you, Your Honor.
2 THE COURT: Anything else?
3 MR. MOSSER: I have one housekeeping
4 issue, Your Honor.
5 THE COURT: I am getting hungry for
6 fajitas, too.
7 MR. MOSSER: I understand it. The motion
8 to transfer venue has been continued.
9 THE COURT: Yes.
10 MR. MOSSER: Can I get a date certain on
11 when that motion will be heard?
12 THE COURT: Well, it probably depends on
13 when -- if y'all delay getting the discovery done. That's
14 what I have heard happened last time is that we set it for
15 today, possibly, I am not sure if it was set or not, there
16 was obviously a dispute about that. But discovery didn't
17 get done. And the reason I think it got set for today, if
18 it did, was that everybody agreed all discovery could be
19 done by now; is that right?
20 MR. MEADE: They unilaterally set the
21 motion for today, Your Honor. And we had had a motion --
22 we had previously noticed these depositions, they had
23 quashed them, we had moved to compel them and we agreed on
24 dates.
25 THE COURT: Okay.
Exhibit N App. 89
49
1 MR. MEADE: But then they on the Sunday
2 before the Monday and Tuesday depositions notified us that
3 they wouldn't go forward and we said that's fine if they
4 want to have their hearing on the motion to transfer venue
5 but don't let them use this issue to avoid the
6 depositions. Let us have the depositions first. Your
7 Honor said that you would. And so the situation is
8 basically as Your Honor said, we will go forward with the
9 depositions before the MTV.
10 And my issue is this, Your Honor, I hope I am
11 wrong but I am guessing that at some point during these
12 depositions next Monday and Tuesday I am going to have to
13 stop the depositions and we are going to have to come down
14 here just based on what I expect the performance --
15 THE COURT: And I will just tell you next
16 Monday and Tuesday I will be with all the Civil District
17 Judges of Harris County at Lost Pines for our CLE.
18 MR. MEADE: Should we come there to find
19 you?
20 THE COURT: I will be happy to see you
21 there.
22 MR. MEADE: I'm sure, Your Honor. Thank
23 you for your time.
24 THE COURT: So after the depositions are
25 done, then discovery is done, we will reset it. Once
Exhibit N App. 90
50
1 that's done --
2 MR. MOSSER: Can we set it for the
3 Wednesday after the depositions are accomplished?
4 THE COURT: No. 1, I don't do hearings on
5 Wednesdays and you are just going to have to get with the
6 court clerk after they are done and we will do it.
7 I mean if venue is not proper here, it will be
8 transferred. If it is proper here, it will stay here.
9 MR. MOSSER: Yes, Your Honor.
10 MR. MEADE: Thank you, Your Honor.
11 MR. MOSSER: May we be excuse?
12 THE COURT: You are excused.
13
14 (End of proceedings).
15
16
17
18
19
20
21
22
23
24
25
Exhibit N App. 91
51
1 THE STATE OF TEXAS
2 COUNTY OF HARRIS
3 I, LaVearn Ivey, Deputy Court Reporter
4 in and for the 133rd District Court of Harris County,
5 State of Texas, do hereby certify that the above and
6 foregoing contains a true and correct transcription of
7 all portions of evidence and other proceedings
8 requested in writing by counsel for the parties to be
9 included in this volume of the Reporter's Record in
10 the above-styled and -numbered cause, all of which
11 occurred in open court or in chambers and were
12 reported by me.
13 I further certify that this Reporter's
14 Record of the proceedings truly and correctly reflects
15 the exhibits, if any, admitted by the respective
16 parties.
17 I further certify that the total cost for the
18 preparation of this Reporter's Record is $450.00 and was
19 paid by Defendants.
20 WITNESS MY OFFICIAL HAND this the 31st day
21 of July, 2014.
22 /s/ LaVearn Ivey ___
LaVEARN IVEY, Texas CSR No. 822
23 Expiration date: 12-31-14
Court Reporter
24 8831 Bedworth Ln.
Houston, Texas 77088
25 (281) 820.0805
Exhibit N App. 92
From: Nancy Jacobs Fax: (713) 658-9002 To: 19722675072@rcfax.cc Fax: +19722675072 P11ge 4 of 8 07/29/2014 3:27
6/1112014 2:07:32 PM
Chris Daniel • District Clerk
Harris County
Envelope No: 1510270
By: ARRIAGA, AMANDA R
Cause No. 2014-10896
LOS CUCOS MEXiCAN CAFE VIII,
INC.; LOS CUCOS MEXICAN CAFE IV,
§
§
IN THE DISTRICT COURT OF fl
INC.; MANUEL CABRERA; AND
SERGIO CABRERA,
§
§
~ STPl)l
§
O.fteo)(
Plaintiffs, § ~b
§ cq~
v. § HAR~OUNTY, TEXAS
§ ~-
8650 FRISCO, LLC D!B/A ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE; § ~\)
MANDONA, LLC; GALOVELHO, LLC; § o~!
BAHTCHE, LLC; CLAUDIO NUNES; and
DAVID JEIEL RODRIGUES,
§
§ ~
Defendants.
§
§
'~ 133rd JUDICIAL DISTRICT
:i}!'
_}(il
ORDER ON DEFENDANTS' MOT}k·ED. Specifically:
n~
The Court DE~YDef'endants' requesl to stay all matters.
The Co``"1y OVERRULES Defendants' objections 10 Plainliffs' Requests for
Production No~ 2, 3, 4, 5, 7, and 8. IT IS ORDERED that Defcndunls shall produce all
~
document~onsive to Requests for Production Nos. l, 2, 3, 4, 5, 7, and 8 within 24 hours of
the enlry of this order.
,,·erycmtf:lfas-detenmned tftat Lhe folluwiHg sa1@i_Q!JS are apprapnatc·, SatiSfY rhe legitilllatc
Exhibit O App. 93
From: Nancy Jacobs Fax: (713) 658-9002 To: 19722675072@rcfax.cc Fax: +19722675072 Page 5 of 8 07/29/2014 3:27
~I 1A purposes of d:scovmy sancnons, and are neuher lllore 1101 less striRgtmt thaH n``
l 'V1L acee~ltjbTise P 'fPGS&." 1
liHGHlying-metiOtrllllOlhe deposition of each of the Defendarlts in assGI'flauce witA ttl is el'!!sr an:
"-~'=
..cilaFgea to tile MOSSER bAW }'!llll+.-'l'fle-MO&Siiil I AW Fm'4 •h·•ll pn``
' · lrtir10 days of the signing efthjs order. _ (Y.»
·l'f' IS FURTHER ORDERED that tl'le i"oilo"ing facts m``AI'lL!Stt~
'jmrpuses-irr1l1ts hngatron: that Detendauts htws-m~sented to yenu~arris Count~
IT IS FURTHER ORDERED that failure to comply,,`` this Order may result in the
.&&
fhrther imposition of sanctions or a holding of contempt, ``habie by fin~ or imprisonment or
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both. ~....Jv....Q 01~ ~- & fij~ 1
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Exhibit O App. 94
8/6/2014 1:52:47 PM
Settlement StatementB/5/2014 Chris Daniel - District Clerk Harris County
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC Envelope No. 2068747
By: AMANDA ARRIAGA
Page 1
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFE VIII, ) IN THE DISTRICT COURT
INC.; LOS CUCOS MEXICAN CAFE )
IV, INC.; MANUEL CABRERA; )
AND SERGIO CABRERA )
)
)
PLAINTIFFS, )
)
VS. ) HARRIS COUNTY, TEXAS
)
8650 FRISCO, LLC D/B/A )
ESTILO GAUCHO BRAZILIAN )
STEAKHOUSE; MANDONA, LLC; )
GALOVELHO, LLC; BAHTCHE, )
LLC; CLAUDIO NUNES; AND )
DAVID JEIEL RODRIGUES )
)
)
)
DEFENDANTS. ) 133RD JUDICIAL DISTRICT
)
***************************************************************
SETTLEMENT STATEMENT
AUGUST 5, 2014
***************************************************************
f[J COPY
Gulfstream Legal Group 713-354-2339
Exhibit P App. 95
Settlement StatementS/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC
Page 2
1 A P P E A R A N C E S
2
3 FOR THE PLAINTIFFS:
KELLY STEPHENS
4 STEPHENS & DOMNITZ, PLLC
2000 BERING DRIVE, SUITE 700
5 HOUSTON, TEXAS 77057
6
FOR THE PLAINTIFFS:
7 DAVID KINDER
COX SMITH
8 112 E. PECAN STREET, SUITE 1800
SAN ANTONIO, TEXAS 78205
9
10 FOR THE DEFENDANTS:
JAMES C. MOSSER
11 MOSSER LAW PLLC
17110 DALLAS PKWY, SUITE 290
12 DALLAS, TEXAS 75248
972.267.5072 FAX
13
14
15
16
17
18
19
20
21
22
23
24
25
Gulfstream Legal Group 713-354-2339
Exhibit P App. 96
Settlement StatementB/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC
Page 3
1 MR. STEPHENS: Okay. We're here to enter into a
2 Rule 11 Agreement and dictate the terms of the settlement
3 agreement for this lawsuit. And the money terms are that 8650
4 Frisco will pay to -- we didn't determine it specifically, but
5 I'll say Cabrera Brothers II.
6 MR. MOSSER: That's the LP?
7 MR. STEPHENS: Right.
8 MR. MOSSER: Cabrera Brothers II, LP I think is
9 the right name.
10 MR. STEPHENS: That's correct.
11 MR. MOSSER: And it's 8650 --
12 MR. STEPHENS: Frisco, LLC.
13 MR. MOSSER: -- Frisco, LLC is the payor.
14 MR. STEPHENS: Will pay the amount of $900,000
15 with a $60,000 payment due upon completion of the paperwork.
16 MR. MOSSER: Sure.
17 MR. STEPHENS: Okay. At execution of the final
18 paperwork and remainder of $840,000 payable over five years at
19, 6.7 percent interest. And I guess we'll do the first payment
20 due -- today is the 4th, so October 1st.
21 MR. MOSSER: Yeah, that's fine. Is that all
22 right with you guys? Everybody agrees with that.
23 MR. KINDER: David Kinder for the plaintiffs to
24 further evidence the payment of the amounts due and to document
25 the loan transaction the defendants will agree to enter into
Gulfstream Legal Group 713-354-2339
Exhibit P App. 97
Settlement StatementB/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC
Page 4
1 what we are calling a standard bank-type documentation for
2 loans and that would include a note or promissory note, a deed
3 of trust, appropriate UCC-ls to the extent plaintiffs determine
4 it's necessary in assignment of the lease and any assets
5 related to the restaurant. The agreements would be with time
6 is of the essence. There would be no cure period for any
7. d e faul t . They will provide f o r a monthly wire transfer of the
8 amounts due under the promissory note. And in connection with
9 the restaurant at issue in this case there will be a $10 paid
10 up license fee for the name of the restaurant that will be
11 limited to that location. There will be no personal guarantees
12. by the defendants.
13 MR. MOSSER: Correct. And we're going to
14 dismiss with prejudice the
15 MR. STEPHENS: The mutual releases.
16 MR. MOSSER: -- pending lawsuit, releases, dah,
17 dah, dah, dah.
18 MR. STEPHENS: Within, say, ten day of
19' execution.
20 MR. MOSSER: And dah, dah, dah is spelled D-A-H,
21 D-A-H, D-A-H.
22 That sounds like our deal.
23 (End of proceedings.)
24
25
Gulfstream Legal Group 713-354-2339
Exhibit P App. 98
Settlement StatementS/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC
Page 5
1 REPORTER'S CERTIFICATION
SETTLEMENT STATEMENT
2 AUGUST 5, 2014
3
4 I, Marisol Ramos, Certified Shorthand Reporter in and for
5 the State of Texas, hereby certify that the foregoing is a
6 correct transcription of the proceedings in the above-entitled
7 � matter.
8 I further certify that I am neither counsel for, related
9 to, nor employed by any of the parties to the action in which
10 this hearing was taken, and further that I am not financially
11 or otherwise interested in the outcome of the action.
12 , Certified to by me this c{�f A1h1tJ7 f-
)
.. , 2014.
13
14
15
Marisol Ramos
16 Texas CSR No. 81 40
Expiration Date: 1 2/3 1/14
17 Firm Registration No. 245
Gulfstream Court Reporting
18 1300 Texas Avenue
Houston, Texas 7 7 002
19 7 1 3. 3 54. 23 3 9
7 13 . 23 7 . 87 42 Fax
20
21
22
23
24
25
Gulfstream Legal Group 713-354-2339
Exhibit P App. 99
1/21/2015 5:44:14 PM
Chris Daniel - District Clerk Harris County
Envelope No. 3853462
By: EVELYN PALMER
Filed: 1/21/2015 5:44:14 PM
Cause No. 2014-10896
Los Cucos Mexican Cafe VIII, Inc.; In the District Court of
Los Cucos Mexican Cafe IV, Inc.;
Manuel Cabrera; and Sergio Cabrera,
Plaintiffs
v.
Harris County, Texas
8650 Frisco, LLC d/b/a Estilo Gaucho
Brazilian Steakhouse; Mandona,
LLC; Galovelho, LLC; Bahtche,
LLC; Claudio Nunes; and David Jeiel
Rodrigues,
Defendant 133rd Judicial District
Plaintiffs’ Fourth Amended Petition
Plaintiffs Los Cucos Mexican Cafe VIII, Inc.; Los Cucos Mexican Cafe IV, Inc.; Manuel
Cabrera; and Sergio Cabrera file this Fourth Amended Petition against defendants 8650 Frisco,
LLC d/b/a Estilo Gaucho Brazilian Steakhouse; Mandona, LLC; Galovelho, LLC; Bahtche,
LLC; Claudio Nunes a/k/a Alex Nunes; and David Jeiel Rodrigues:
Discovery Level
1. The plaintiffs intend to conduct discovery under Level 3 of Rule 190.3 of the
Texas Rules of Civil Procedure.
2. The plaintiffs seek damages within the jurisdictional limits of this Court,
including monetary relief over $1,000,000.
Parties
3. Plaintiff, Los Cucos Mexican Cafe VIII, Inc. (“Los Cucos VIII”), is a Texas
Corporation with its principal place of business in Houston, Harris County, Texas.
4. Plaintiff, Los Cucos Mexican Cafe IV, Inc. (“Los Cucos IV”), is a Texas
Corporation with its principal place of business in Harris County, Texas.
Exhibit Q App. 100
5. Plaintiff, Manuel Cabrera, is an individual who resides in Austin County, Texas.
6. Plaintiff, Sergio Cabrera, is an individual who resides in Harris County, Texas.
7. Defendant, 8650 Frisco, LLC (“8650 Frisco”), is a Texas limited liability
company doing business as Estilo Gaucho Brazilian Steakhouse. It has been served and appeared
herein.
8. Defendant, Mandona, LLC (“Mandona”), is a Texas limited liability company. It
has been served and appeared herein.
9. Defendant, Galovelho, LLC (“Galovelho”), is a Texas limited liability company.
It has been served and appeared herein.
10. Defendant, Bahtche, LLC (“Bahtche”), is a Texas limited liability company. It has
been served and appeared herein.
11. Defendant, Claudio Nunes a/k/a Alex Nunes (“Nunes”), is an individual citizen of
Texas. He has been served and appeared herein.
12. Defendant, David Jeiel Rodrigues (“Rodrigues”), is an individual citizen of
Texas. He has been served and appeared herein.
Jurisdiction and Venue
13. Venue is proper under TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1) because a
substantial part of the events giving rise to this lawsuit occurred within this county. More
specifically, Plaintiffs and Defendants negotiated and entered into, on the record, an agreement
to settle the underlying complaints of Plaintiffs. The negotiations leading to this settlement took
place in the offices of Hawash, Meade Gaston Neese & Cicack, LLP, located at 2118 Smith
Street, Houston, Harris County, Texas 77002.
14. Jurisdiction is proper in this Court because the parties are all Texas residents and
the amount in controversy is within the jurisdictional limits of the court.
2
Exhibit Q App. 101
Factual Background
15. Manuel Cabrera and Sergio Cabrera are brothers with significant experience in
creating, owning, and operating restaurants. The brothers are the owners and operators of a
number of Mexican restaurants branded and known as “Los Cucos Mexican Cafe”. Each
restaurant is a separate legal entity registered with the State of Texas. Los Cucos VIII and Los
Cucos IV are two of these entities.
16. Manuel Cabrera, Sergio Cabrera, David Jeiel Rodrigues, and Claudio Nunes
(collective, the “Partners”) agreed to create and operate a restaurant together. The plan and
agreement was to create a Brazilian churrascaria-style restaurant in the Dallas, Texas area.
The Underlying Background
I. The initial agreement.
17. After a series of negotiations, the Partners agreed that, inter alia: (1) each partner
would obtain a 25% interest in the restaurant; (2) Manuel Cabrera and Sergio Cabrera
(individually or through entities subject to their control) would contribute $600,000 for start-up
capital; (3) David Jeiel Rodrigues and Claudio Nunes would contribute “sweat equity” by
contributing personal services to the creation and operation of the restaurant; (4) Manuel Cabrera
and Sergio Cabrera (individually or through entities subject to their control) would guarantee a
lease for the restaurant; (5) all intellectual property, including trademarks would be held together
with the restaurant; and (6) the Partners would share control, profits, and losses equally, but
would receive no other salary from the restaurant.
II. Excess contributions and attempted renegotiation.
18. As work progressed on the restaurant, additional capital was needed. At David
Jeiel Rodrigues’ and Claudio Nunes’ request, Manuel Cabrera and Sergio Cabrera (individually
or through entities subject to their control) increased their contributions. The Cabreras’ total
3
Exhibit Q App. 102
contributions eventually equaled more than $948,000. In addition, Manuel Cabrera and Sergio
Cabrera (individually or through entities subject to their control) paid for and/or loaned
equipment and furniture (including two large, expensive, and difficult-to-obtain Brazilian grills)
worth over $60,000 to the enterprise.
19. To account for the unanticipated and additional contributions, the Partners
attempted to negotiate a way for Manuel Cabrera and Sergio Cabrera (individually or through
entities subject to their control) to receive preferential distributions until their initial
contributions were repaid, subject to a small guaranteed distribution to David Jeiel Rodrigues
and Claudio Nunes.
III. Creation of the corporate structure and the Restaurant operations.
20. While the Partners negotiated a new distribution structure, the Partners agreed to
form 8650 Frisco as the holding company for the Restaurant. Each of the four Partners was to
own 25% of 8650 Frisco. David Jeiel Rodrigues and Claudio Nunes created defendant Galovelho
to hold their 50% ownership interest in 8650 Frisco and the Restaurant. Sergio Cabrera and
Manual Cabrera designated Los Cucos VIII to hold their 50% ownership interest in 8650 Frisco
and the Restaurant.
21. 8650 Frisco then entered into a lease agreement for restaurant space, which Sergio
Cabrera and Manuel Cabrera personally guaranteed.
22. David Jeiel Rodrigues and Claudio Nunes also desired to create a holding
company to manage 8650 Frisco, but the parties did not agree on this structure. Instead, David
Jeiel Rodrigues and Claudio Nunes formed Mandona to hold their collective 50% interest in the
management of 8650 Frisco. Manuel Cabrera and Sergio Cabrera did not form a holding
4
Exhibit Q App. 103
company to hold their collective 50% control over 8650 Frisco, but continued to hold control in
their individual capacities.
23. The Partners then opened bank accounts for 8650 Frisco and granted all of the
Partners access to the accounts.
24. Despite lengthy negotiations, it now appears that the Partners were and are unable
to agree on new distribution terms to take into account the Cabreras’ (or entities under their
control) substantial excess contributions. Instead, the Partners continued to operate as general
partners or joint venturers up and until the defendants removed the plaintiffs from the enterprise
and began to deny the plaintiffs’ ownership interest in 8650 Frisco and the restaurant.
IV. The defendants’ exclusion of the plaintiffs.
25. Thanks to the contributions from Manuel Cabrera and Sergio Cabrera
(individually or through entities subject to their control), 8650 Frisco opened the Estilo Gaucho
Brazilian Steakhouse (the “Restaurant”) in February of 2013.
26. 8650 Frisco is currently operated by David Jeiel Rodrigues and Claudio Nunes,
individually, and (upon information and belief) through their entities Mandona, Galovelho, and
Bahtche. The defendants have collectively refused to recognize the plaintiffs as co-owners of
8650 Frisco and the Restaurant, and have collectively excluded the plaintiffs from the operations,
control, distributions, and profits of 8650 Frisco and the Restaurant.
27. On information and belief, the defendants are distributing and/or diverting
$40,000 or more per month from 8650 Frisco and the Restaurant to themselves or their
designees. This is a violation of the parties’ agreement and the defendants’ duties as partners
and/or joint venturers.
5
Exhibit Q App. 104
28. On further information and belief, the defendants registered the Restaurant’s
“Estilo Gaucho” trademark in the name of Bahtche and/or transferred the trademark to Bahtche
without the plaintiffs’ consent, in violation of the parties’ agreement, and in breach of the
defendants’ duties as partners and/or joint venturers.
29. The plaintiffs have not received any distributions from the Restaurant’s
operations. Instead, the defendants have attempted to steal the plaintiffs’ contributions by
denying the plaintiffs any distributions or benefits of ownership. For example, the defendants
have:
 transferred and/or laundered 8650 Frisco’s cash from bank accounts to
which the plaintiffs had access to new accounts to which the plaintiffs
have no access;
 denied the plaintiffs access to 8650 Frisco’s new bank accounts;
 failed to hold and/or give notice of meetings for 8650 Frisco;
 denied the plaintiffs access to the Restaurant’s premises;
 fired 8650 Frisco’s long-time accountant in favor of an account who, upon
information and belief, is controlled by the defendants;
 denied the plaintiffs access to 8650 Frisco’s books and records;
 denied the plaintiffs’ interest in 8650 Frisco;
 distributed 8650 Frisco’s cash to themselves but not to the plaintiffs;
 used equipment loaned to 8650 Frisco for the defendants’ own benefit and
refusing to return such equipment after demand was made; and
 transferring the assets of 8650 Frisco to entities owned or controlled by the
defendants such as Bahtche.
30. The plaintiffs have made written demands for return of their money and property
and for an accounting. The defendants have refused. Instead, the defendants continue to use the
6
Exhibit Q App. 105
plaintiffs’ property and the fruits of the plaintiffs’ contributions while simultaneously pretending
that the plaintiffs are owed nothing in the transaction.
The Underlying Causes of Action
31. The Plaintiffs sued Defendants alleging as causes of action: Breach of Contract,
Coversion, Breach of Fiduciary Duty, Fraud/Fraudulent Inducement, Civil Conspiracy, Aiding,
Abetting and Participation in Breach of Fiduciary Duty, Corporate Veil Piercing, Unjust
Enrichment, Quantum Meruit, and Money Had and Received and for an Accounting.
The Rule 11 Settlement Agreement
32. On or about August 5, 2014, while in the midst of taking the Court Ordered
depositions of the Defendants at the offices of Hawash Meade Gaston Neese & Cicack, LLP,
located at 2118 Smith Street, Houston, Harris County, Texas 77002, the parties entered into a
settlement negotiation and on August 5, 2014, entered into a Rule 11 Settlement Agreement on
the record. On August 6, 2014, the Defendants filed the Rule 11 Agreement with the Court.
33. The key elements of the agreement were:
A. Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse was to
pay to Cabrera Brothers II, LP, the amount of $900,000.00. The terms of
payment were $60,000.00 was to be paid upon completion of the paperwork
formalizing the settlement and the remainder to be paid monthly over 5 years at
6.7% interest. The initial payment under the note was to be due on October 1,
2014;
B. The Defendants further agreed to enter into “standard bank-type
documentation” for the note to include a “note or promissory note, a deed of trust,
7
Exhibit Q App. 106
appropriate UC-1s to the extent Plaintiff determine it’s necessary, an assignment
of the lease and any assets related to the restaurant;
C. Time would be of essence in the agreements, and there would no cure time for
any default;
D. In the case of default, there was to be a $10.00 paid up license fee for use of
the name of the restaurant limited to that location; and,
E. The individual Defendants would not be liable under the note.
Plaintiffs ask that the Court take judicial notice of the Transcript of the Rule 11
Settlement Statement filed in this cause by the Defendants on August 6, 2014.
34. In August and September of 2014, Plaintiffs prepared and forwarded documents
to the Defendants for review and suggestion. These documents included a formal settlement
agreement which included the release of the individual Defendants, a promissory note, a UCC-1
listing as collateral for the note the assets of the restaurant; an assignment of interest in the lease,
all as required by the Rule 11 Agreement.
35. The Defendants made a number of suggestions to change these documents, most
of which were then included in the documents. Not all of Defendants changes were accepted,
most notably Plaintiffs refused to accept a venue selection clause in the documents requiring
venue of any action based on a breach of the agreement in Collin County, Texas.
36. Defendants have and continue to refuse to execute the settlement agreement or the
note and security documents as required by the Rule 11 Agreement.
37. On or about October 1, 2014, the Defendants did make the $60,000.00 down
payment and the first monthly payment under the proposed terms of the note. And, have made
the monthly payments through the January 1, 2015 payment as of the time of this filing.
8
Exhibit Q App. 107
38. On or about October 9, 2014, Plaintiffs notified the Defendants that they were in
default of the settlement agreement absent the execution of the settlement agreement, the note,
the deed of trust and the appropriate security documents.
39. On or about October 10, 2014, Plaintiffs again notified the Defendants of the
default, ask for additional complaints about the documents as provided and made an offer to
change the documents to address the lone identified bone of contention (venue).
40. To date, Defendants have not responded to this request.
Causes of Action
I. Breach of Contract
41. The Defendants have breached the Rule 11 Agreement by failing to execute the
formal settlement agreement, the promissory note and the appropriate security documents as set
forth in the Rule 11 Agreement. By so doing, the Defendants are denying the Plaintiffs the
protection agreed to in case of default under payments of the amount agreed to.
Relief Requested
42. The plaintiffs seek judgment jointly and severally against all Defendants for
actual damages in the amount of $900,000.00 as agreed to under the Rule 11 agreement with
credit to be given for the amounts paid.
43. The plaintiffs seek their attorney’s fees and costs incurred in prosecuting these
claims.
44. The plaintiffs seek pre and post judgment interest and the maximum rate allowed
by law.
45. The plaintiffs seek all other relief, at law or in equity, to which the plaintiffs may
be entitled.
9
Exhibit Q App. 108
Respectfully Submitted,
Stephens & Domnitz, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
State Bar No. 19158300
P.O. Box 79734
2118 Smith Street
Houston, Texas 77279-9734
281-394-3287 (phone)
832-476-5460 (fax)
kstephens@stephensdomnitz.com
Hawash Meade Gaston
Neese & Cicack LLP
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
Samuel B. Haren
State Bar No. 24059899
2118 Smith Street
Houston, Texas 77002
713-658-9001 (phone)
713-658-9011 (fax)
ameade@hmgnc.com
jmasten@hmgnc.com
sharen@hmgnc.com
Cox Smith Matthews Incorporated
David Kinder
State Bar No. 11432550
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205
210-554-5500 (phone)
210-226-8395 (fax)
dkinder@coxsmith.com
Attorneys for Plaintiffs
10
Exhibit Q App. 109
Certificate of Service
A true and correct copy of the foregoing has been served on all counsel of record via ECF
on January 21, 2014.
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pky, Suite 290
Dallas, Texas 75248
/s/ Kelly D Stephens
Kelly D. Stephens
11
Exhibit Q App. 110
2/20/2015 5:39:13 PM
Chris Daniel - District Clerk Harris County
Envelope No. 4238956
By: JIMMY RODRIGUEZ
Filed: 2/20/2015 5:39:13 PM
Cause No. 2014-10896
Los Cucos Mexican Cafe VIII, Inc.; In the District Court of
Los Cucos Mexican Cafe IV, Inc.;
Manuel Cabrera; and Sergio
Cabrera,
Plaintiffs
v. Harris County, Texas
8650 Frisco, LLC d/b/a Estilo Gaucho
Brazilian Steakhouse; Mandona,
LLC; Galovelho, LLC; Bahtche,
LLC; Claudio Nunes; and David Jeiel
Rodrigues, 133rd Judicial District
Defendant
Plaintiffs’ Second Motion to Enforce the Court’s Order and for Sanctions
The Court ordered Defendants to produce certain documents by August 1, 2014. As of the
filing hereof, Defendants have still not complied with that order. In light of Defendants’ long
history of egregious conduct in this case, Plaintiffs ask that the Court sanction Defendants until
they comply with the Court’s order.
Background
Defendants have been in contempt of the Court’s order for over 200 days. Unfortunately,
given the history of this case, this is not a surprising development. Because this matter has not
been before the Court for some time, Plaintiffs offer the following timeline to remind the Court of
Defendants’ longstanding pattern of ignoring the law and the Court’s orders:
April 14, 2014: Plaintiffs propound requests for production (the “Discovery Request”) seeking
certain financial documents (the “Financial Documents”). See Exhibit 1,
Discovery Requests.
April 21, 2014: Plaintiffs serve Hal Holtman—Defendants’ accountant until March 2014—with
a deposition upon written questions and subpoena duces tecum (the “Holtman
Subpoena”). See Exhibit 2, Holtman Subpoena. This Holtman Subpoena was
signed by Plaintiffs’ attorney Jeremy Masten. See id. at 1.
Exhibit R App. 111
April 22, 2014: Defendants instruct Holtman not to comply with the Holtman Subpoena.
Exhibit 3, Letter from N. Mosser to H. Holtman.
April 22, 2014: In a separate letter, Defendants instruct Holtman to destroy “all copies and
backups” of all documents related to Defendants. Exhibit 4, Letter from N.
Mosser to H. Holtman.
May 10, 2014: Defendants (1) acknowledge that J. Masten signed the Holtman Subpoena and
(2) allege that the Holtman subpoena is invalid because it was not signed.
Exhibit 5, Defendants’ Response to Plaintiffs’ Motion to Compel and for
Sanctions at ¶¶ 20–21.
May 12, 2014: The Court finds that “Defendants’ counsel has abused the discovery process in
resisting discovery” and overrules Defendants’ objections to the Holtman
Subpoena. Exhibit 6, Order on Plaintiffs’ Emergency Motion to Compel and
for Sanctions.
May 14, 2014: Defendants respond to the Discovery Requests with a litany of improper
objections, including non-existent privileges and defenses available only to the
federal government and banks, respectively. See Exhibit 7, Plaintiffs’ Third
Motion to Compel at ¶¶ 20–25.
May 14, 2014: Plaintiffs serve Mike Verucchi—the accounts Defendants hired to replace
Holtman—with a deposition upon written questions and subpoena duces tecum
(the “Verucchi Subpoena”). See Exhibit 8, Verucchi Subpoena. This Verucchi
Subpoena required Verucchi’s custodian of records to produce certain
documents “at the office of the custodian.” See id. at 2.
June 13, 2014: Defendants move to quash the Verucchi Subpoena on the grounds that the
command to produce documents “at the office of the custodian” required
production more than 150 miles from the office of the custodian. Exhibit 9,
Defendants’ Motion to Quash at ¶¶ 9–13.
June 23, 2014: The Court overrules Defendants’ objections to the Discovery Requests and
orders production of the Financial Documents. Exhibit 10, Hearing Transcript
at 23:2–4. While discussing the issue with the Court, Defendants acknowledge
that Defendants possessed responsive documents from after March 2014 which
were not produced by Holtman. Id. at 23:5–7.
June 23, 2014: Plaintiffs provide Defendants with a link from which Defendants can download
the documents received from Holtman (the “Holtman Documents’). See Exhibit
11, Letter from S. Haren to J. Mosser. Plaintiffs request that Defendants
produce the Financial Documents within ten days. Id. Defendants do not
respond to this letter.
July 10, 2014: Plaintiffs again request production of the Financial Documents. Exhibit 12,
Letter from S. Haren to J. Mosser.
2
Exhibit R App. 112
July 11, 2014: Defendants respond that they did not receive the June 23, 2014 letter. Exhibit
13, Letter from N. Mosser to S. Haren. Defendants do not state whether they
will comply with the Court’s June 23, 2014 order to produce the Financial
Documents. Id. Defendants do, however, offer to “fax the 7000 pages back to
you that you subpoenaed from Mr. Holtman.” Id.
July 14, 2014: Defendants serve “supplemental Discovery Responses.” See Exhibit 14, Letter
from N. Mosser to K. Stephens. The 7,235 page production consists entirely of
the Holtman Documents Plaintiffs provided to Defendants, including the Bates
numbering applied by Plaintiffs’ vendor.1 Id.
July 15, 2014: Defendants claim that the Court’s statement “I’m going to overrule your
objections and tell you to produce it if it’s available to you” did not actually
overrule Defendants’ objections and did not require production of the Financial
Documents. Compare Exhibit 10, Hearing Transcript at 23:2–4 and Exhibit 15,
Letter from N. Mosser to K. Stephens. Defendants also acknowledge that their
July 14, 2014 “production” did not include any new documents. Id.
July 28, 2014: The Court overrules Defendants’ objections to the Verucchi Subpoena. Exhibit
16, Order Denying Defendants’ Motion to Quash. In this order, the Court found
that “Defendants filed the [motion to quash] without adequately considering the
contents of [the Verucchi Subpoena]” and that “Defendants refused to withdraw
the [motion to quash] once the relevant contents were pointed out.” Id. The
Court further found “that the Defendants have advanced frivolous arguments
without basis in fact or law in support of the [motion quash]” and that “this
misconduct is part of a larger pattern of improper objections, motions to quash,
and invocations of privilege.” Id.
July 28, 2014: The Court orders Defendants to comply with the prior order compelling
production of the Financial Documents. Exhibit 17, Order on Plaintiffs’ Third
Motion to Compel. Such documents “must be produced at Plaintiffs’ attorneys’
office by Aug[ust] 1, 2014 at 5:00 p.m.”2 Id. The Court cautioned that “failure
to comply with this Order may result in further imposition of sanctions or a
holding of contempt, punishable by fine or imprisonment or both.” Id.
August 1, 2014: Defendants serve a letter at 4:17 p.m. stating that they had been unable to fax
their document production to Plaintiffs’ counsel. Exhibit 18, Letter from N.
Mosser to S. Haren.
1
Given Defendants’ claim not to have received the June 23, 2014 letter containing the link to download the Holtman
Documents, it is unclear how Defendants obtained the documents for their supplemental production.
2
The Court emphasized that Defendants were to ensure that these documents were received in Plaintiffs’ office before
the deadline. After an objection by Defendants, the Court specified that this service requirement was stricter than that
contemplated by Rule 21a. This requirement was necessary because Plaintiffs would be taking Defendants’
depositions on August 4–5 and needed the Financial Documents in order to prepare for those depositions.
3
Exhibit R App. 113
August 1, 2014: Plaintiffs responded at 4:48 p.m. with an alternative fax number and offering to
help Defendants to serve the documents electronically. Exhibit 19, Email from
S. Haren to J. Mosser. Defendants do not respond to this offer.
In what should have been a boon to the Court’s docket, the parties met at Plaintiffs’
counsel’s office in Houston, Texas and entered into a settlement agreement on the record to dispose
of this case on August 5, 2014. See Exhibit 20, Rule 11 Transcript. Unfortunately for all involved,
the case came back to life when Defendants refused to abide by the terms of that settlement
agreement. Accordingly, Plaintiffs amended their petition to include claims only for breach of the
settlement agreement.
Discussion
Defendants were served with the requests to produce the Financial Documents over 300
days ago. The Court overruled Defendants’ objections and ordered production of the Financial
Documents over 240 days ago. The Court ordered Defendants’ to comply with its prior order and
produce the Financial Documents over 200 days ago. Defendants still have not produced the
Financial Documents.
Plaintiffs expect Defendants to argue that the Financial Documents are not relevant to
Plaintiffs’ claims. This argument is misplaced on two levels. First, Defendants are obligated under
the settlement agreement to provide, inter alia, (1) payments over time and (2) certain security
interests until those payments are made. Given Defendants’ long history of delay, bad faith
arguments, and dishonesty, Plaintiffs require information from the Financial Documents to assess
Defendants’ compliance with their settlement obligations.
Second, Defendants still seek to transfer venue from Harris County. But instead of drafting
a new motion to transfer which addresses Plaintiffs’ current claims, Defendants merely set their
July 1, 2014 Motion to Transfer Venue for an oral hearing. That motion to transfer was filed before
the settlement agreement was made and only addresses claims which are no longer asserted in this
4
Exhibit R App. 114
action. Although Plaintiffs believe that such claims are wholly irrelevant to the issue of venue,
Defendants apparently disagree. Because Defendants seek to litigate unasserted claims, Plaintiffs
must be prepared to respond. As such, information concerning Plaintiffs’ prior claims is relevant
to respond to Defendants’ frivolous motion to transfer arguments.
Request for Sanctions
Defendants have completely ignored their duties as attorneys to act in good faith and their
duties as citizens to comply with the Court’s orders. This has included, inter alia:
 ordering a witness to destroy documents responsive to a subpoena;
 advancing bizarre arguments that a signed subpoena was not signed or that Dallas was
not within 150 miles of Dallas;
 acknowledging to the Court that the Holtman Documents did not contain all responsive
Financial Documents but later claiming to have complied with the Court’s order by
producing only the Holtman documents;
 refusing to comply with—and even denying the enforceability of—the Court’s original
order compelling production of the Financial Documents;
 refusing to comply with the Court’s order to have the Financial Documents produced
in Plaintiffs’ counsel’s office by August 1, 2014; and
 refusing to produce the Financial Documents at all.
The Court has already found that “Defendants’ counsel has abused the discovery process,”
“advanced frivolous arguments without basis in fact or law in support,” and engaged in “a larger
pattern of improper objections, motions to quash, and invocations of privilege.”3 In light of this,
3
Sadly, Defendants’ counsel’s antics have not been confined to this case. In Jabary, for example, James Mosser was
given the following “‘breakdown of the costs’ for the clerk’s record”:
Clerk’s Record: 8517 pages @ $1.50 per page totaling: $12.775.90
Paper copy of Record: 8517 pages @ $.25 per page totaling: $2.129.25
And/or CD copy of Record: $20.00.
Jabary v. City of Allen, No. 05-12-01332-CV, 2013 WL 1803739, at *1 (Tex. App.—Dallas Apr. 29, 2013, no pet.
h.). Although this “breakdown” clearly showed that preparation of the record would cost $1.50 per page and a CD
5
Exhibit R App. 115
the Court’s final order to produce the Financial Documents cautioned Defendants that “failure to
comply with this Order may result in further imposition of sanctions or a holding of contempt,
punishable by fine or imprisonment or both.” Unfortunately, even this warning was not enough to
ensure compliance with the Court’s order.
Conclusion
The Court has given Defendants warning after warning and the Defendants have steadfastly
refused to comply with the Texas Rules of Civil Procedure or the Court’s explicit orders. Plaintiffs
believe that another warning will only reinforce this behavior and encourage Defendants to turn
this trial into a circus. Plaintiffs pray that the Court sanction Defendants $500 for every day
between August 1, 2014 and the date on which Defendants finally produce the Financial
Documents. Plaintiffs further pray that the Court grant them all other relief to which they are
entitled.
copy of that record would cost an additional $20.00, Mosser demanded that (1) the clerk prepare the entire record for
only the $20.00 CD fee and (2) the court award him his attorneys’ fees in pursuing his demand. See id. Mosser stood
by his absurd demand and refused to pay for the clerk’s record to be prepared. Id. As a result of his stubbornness and
refusal to accept the plain meaning of a document, Mosser’s client’s appeal was dismissed. Id. at *1–2. See also In re
Pendragon Transp. LLC, 423 S.W.3d 537, 539–40 (Tex. App.—Dallas 2014, no pet. h.) (upholding appointment of a
discovery master due to Mosser’s egregious and disruptive conduct in depositions taken at the Courthouse before the
trial judge); In re Mosser Law PLLC, No. 05-13-00906, 2013 WL 3718076, at *1 (Tex. App.—Dallas 2013, no pet.
h.) (denying mandamus for Mosser’s claim that the trial court lacked the power to order him to produce documents).
These cases as well as Mosser’s Motion to Require Clerk to File Clerk’s Record in the Jabary case (asking whether
Mosser’s client “should be punished because of the District Clerk’s lack of understanding and poor use of English
grammar?”) and brief in In re Mosser Law (stating that the trial court lacked jurisdiction to order an attorney to produce
a document because “James C. Mosser is not a party to the underlying litigation and has never been served with
citation or petition and has not waived service”) are attached hereto as Exhibits 21–24.
6
Exhibit R App. 116
Respectfully submitted,
Stephens & Domnitz, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
State Bar No. 19158300
P.O. Box 79734
2118 Smith Street
Houston, Texas 77279-9734
281-394-3287 (phone)
832-476-5460 (fax)
kstephens@stephensdomnitz.com
Hawash Meade Gaston
Neese & Cicack LLP
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
Samuel B. Haren
State Bar No. 24059899
2118 Smith Street
Houston, Texas 77002
713-658-9001 (phone)
713-658-9011 (fax)
ameade@hmgnc.com
jmasten@hmgnc.com
sharen@hmgnc.com
Cox Smith Matthews Incorporated
David Kinder
State Bar No. 11432550
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205
210-554-4400 (phone)
210-226-8395 (fax)
dkinder@coxsmith.com
Attorneys for Plaintiffs
7
Exhibit R App. 117
Certificate of Conference
As discussed above, Plaintiffs have offered to assist Defendants in producing the Financial
Documents. See Exhibit 19, Email from S. Haren to J. Mosser. Defendants did not respond to this
offer. On February 20, 2015, Counsel for Plaintiffs faxed a letter to Defendants demanding
production of documents responsive to “requests for production 1, 2, 3, 4, 5, 7, and 8” of the
“discovery requests [served] on Defendant 8650 Frisco, LLC on April 14, 2014.” Exhibit 25, Letter
from S. Haren to N. Mosser. Plaintiffs reminded Defendants that the Court ordered production of
these documents on June 23 and July 28. See id.
Defendants responded that “we have complied with all orders of this court and would need
more specifics as to what you are referring. This information would be necessary to investigate
what documents you contend you did not receive and where that error may lie.” Exhibit 26, Letter
from N. Mosser to S. Haren. Even now, Defendants continue to pretend that they are not bound by
the Court’s orders and to misrepresent what documents they have produced.
/s/ Samuel B. Haren
Samuel B. Haren
Certificate of Service
A true and correct copy of the foregoing has been served on all counsel of record via
electronic service on February 20, 2015.
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pky, Suite 290
Dallas, Texas 75248
/s/ Samuel B. Haren
Samuel B. Haren
8
Exhibit R App. 118
CAUSE NO. 2014-01089
LOS CUCOS MEXICAN CAFE § IN THE DISTRICT COURT OF
VIII, INC.; LOS CUCOS MEXICAN §
CAFE IV, INC.; MANUEL §
CABRERA; and SERGIO §
CABRERA, §
Plaintiffs §
§
v. §
§ HARRIS COUNTY, TEXAS
8650 FRISCO, LLC D/B/A ESTILO §
GAUCHO BRAZILIAN §
STEAKHOUSE; MANDONA, LLC; §
GALOVELHO, LLC; BAHTCHE, §
LLC; CLAUDIO NUNES; and §
DAVID JEIEL RODRIGUES, §
Defendants § 133rd JUDICIAL DISTRICT
PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS TO 8650 FRISCO, LLC
D/B/A ESTILO GAUCHO BRAZILIAN STEAKHOUSE
TO: Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse, by and
through its counsel of record, Nicholas D. Mosser and Benjamin Casey, Mosser
Law PLLC, 17110 Dallas Parkway, Suite 290, Dallas, Texas 75248.
Pursuant to the Texas Rules of Civil Procedure, Plaintiffs Los Cucos Mexican
Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera
(“Plaintiffs”) serve their First Set of Requests for Admissions, Requests for Production
and First Set of Interrogatories on Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho
Brazilian Steakhouse (“Defendant”) as authorized by Rules 196 and 198, TEX. R. CIV. P.
Defendant must specifically admit or deny and produce all requested documents in its
possession, custody, or control (as they are kept in the ordinary course of business or
organized and labeled to correspond with categories in each request) for inspection and
Exhibit R
Exhibit 1 Ohio App. 119
copying, and not more than 30 days after service, at the office of HAWASH MEADE
GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.
Respectfully submitted,
STEPHENS & DOMNITZ, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
SBN: 19158300
P.O. Box 79734
Houston, Texas 77279-9734
Tel: 281-394-3287
Fax: 832-476-5460
kstephens@stephensdomnitz.com
HAWASH MEADE GASTON NEESE
& CICACK LLP
/s/ Andrew K. Meade
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
2118 Smith Street
Houston, Texas 77002
713-658-9006 (Direct & Fax)
ameade@hmgllp.com
jmasten@hmgllp.com
ATTORNEYS FOR PLAINTIFFS
LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
LOS CUCOS MEXICAN CAFÉ IV, Inc.,
MANUEL CABRERA, and
SERGIO CABRERA
2
Exhibit R App. 120
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been served to the
following pursuant to the Texas Rules of Civil Procedure on April 14, 2014.
Via Fax: 972-267-5072 and
email: courtdocuments@mosserlaw.com
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pkwy, Suite 290
Dallas, TX 75248
/s/ Andrew K. Meade
Andrew K. Meade
3
Exhibit R App. 121
DEFINITIONS AND INSTRUCTIONS
1. As used throughout this request (including these definitions and
instructions), the term “documents” means each and every document (as defined in
Rule 34, FED. R. CIV. P.), all electronically stored information, and each and every
tangible thing, including but not limited to both electronic and hard copy documents, in
the possession, custody, or control of Plaintiff, whether a copy, draft, or original,
wherever located, with all exhibits, attachments, and schedules, including but not
limited to the following: correspondence and drafts of correspondence; notes or
summaries of conversations; income tax returns, forms, schedules, or worksheets; inter-
and intra-office memoranda; reports; comments; worksheets; plans; minutes; notes;
notices or notifications; findings; conclusions; memoranda; contracts or agreements of
any kind; brochures, circulars, bulletins, advertisements, sales catalogs or literature;
packages, packaging, and package inserts; notes, records, summaries, or other reports of
conferences, meetings, visits, surveys, discussions, inspections, examinations, reviews
or telephone conversations; purchase orders, quotations, estimates, invoices, bids,
receipts, or acknowledgements, including the reverse sides of all such documents with
printing, typing or writing on the reverse sides; bills of lading and other shipping
documents; credit agreements or credit memoranda; contract or lease offers or
proposals; executed or proposed agreements, contracts, franchise agreements, licenses,
leases, insurance policies and riders, or options; proposals; diaries; desk calendars,
appointment books, or telephone call books; property valuations or appraisals, and
their updates; affidavits, depositions, transcripts and statements, or summaries or
excerpts thereof; stenographic notes; books and records; financial data; stock certificates
and evidence of stock ownership; newspaper or magazine articles; pamphlets, books,
texts, notebooks, magazines, manuals, journals, and publications; notepads, tabulations,
data compilations, calculations, or computations; schedules; drafts; charts and maps;
forecasts and projections; drawings, designs, plans, specifications, graphs, blueprints,
sketches, or diagrams; orders; pleadings and court filings; checks and check stubs (front
and back); records or transcripts of statements, depositions, conversations, meetings,
discussions, conferences or interviews, whether in person or by telephone or by other
means; workpapers; printouts or other stored information from computers or other
information retention or processing systems; e-mail or electronic mail or
communications, in whatever form; instant messages in whatever form; photographic
matter or sound reproduction matter however produced, reproduced or stored;
government reports, regulations, filings or orders; any other written, printed, typed,
taped, recorded, or graphic matters; any exhibits, attachments, or schedules to or with
the foregoing; any drafts of the foregoing; and any copies or duplicates of the foregoing
that are different because of marginal or handwritten notations, or because of any
markings thereon or alterations thereof.
2. All electronically stored information should be produced as an electronic
copy, preserving all metadata.
4
Exhibit R App. 122
3. Throughout this request (including these definitions and instructions), the
term “communications” means any and all of the following: writings, oral
communications, electronic communications (including emails, text messages, and
instant messages), wire communications, conversations by telephone, meetings, and
any contact, oral or written, formal or informal, at any time or place, and under any
circumstance whatsoever, in which information of any nature was transmitted or
exchanged in any form or by any medium.
4. Throughout this request (including these definitions and instructions), the
phrases “relating to,” “relates to,” “related to,” "regarding," and “in relation to” mean
constituting or evidencing, and directly or indirectly mentioning, describing, referring
to, pertaining to, being connected with, reflecting upon, or concerning the stated subject
matter.
5. Throughout this request (including these definitions and instructions), the
words “any” and “all” shall be considered to include “each” and “each and every.”
6. Throughout this request (including these definitions and instructions), the
singular of any word shall include the plural, and the plural of any word shall include
the singular. The masculine form shall include the feminine and neutral forms. The
terms “and” and “or” shall mean “and/or” inclusively.
7. Throughout this request (including these definitions and instructions), the
terms “you” and “your” refer to the party responding to the request, as well as his, her,
or its present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on behalf of or
under the control of the responding party.
8. Throughout this request (including these definitions and instructions),
“Defendant” and “Frisco” mean 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian
Steakhouse, a named defendant in this matter. The term “Defendant” or “Frisco” also
includes Defendant’s present and former agents, employees, counselors, consultants,
representatives, attorneys, and any other person or entity acting or purporting to act on
its behalf or under its control.
9. Throughout this request (including these definitions and instructions), the
term “Plaintiff” or “Plaintiffs” means any named Plaintiff in this matter, including their
present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on its behalf or
under their or its control.
10. Throughout this request (including these definitions and instructions),
“Los Cucos” means Los Cucos Mexican Café VIII, Inc. and Los Cucos Mexican Café IV,
5
Exhibit R App. 123
Inc., named defendants in this matter and includes any present and former agents,
employees, counselors, consultants, affiliates, subsidiaries, representatives, attorneys,
and/or any other person or entity acting or purporting to act on the behalf or under the
control of Los Cucos.
11. If you contend that any document requested here need not be produced
under a privilege or other protection against disclosure, provide an itemized log of the
document(s) being withheld from production. In the log, specify the date of each such
document, its author(s), all recipient(s), and any person(s) copied on the document, the
paragraph of this request to which the document responds, and a brief description of
the document’s contents that supplies enough detail to assess the applicability of the
privilege or protection being claimed. In addition, please specify the privilege or
protection upon which you rely as their basis for withholding the document(s) from
production.
12. If you intend to produce any electronic document or information in
response to this request, please contact counsel for Los Cucos to discuss the form in
which such electronic document or information will be produced.
13. If you have any questions about this request, please contact counsel for
Los Cucos promptly for clarification.
14. Unless otherwise stated, the time period covered by this request is January
1, 2010 to the present.
15. You are reminded of your duty under Rule 193.5, Tex. R. Civ. P., to amend
or supplement any response that was incomplete or incorrect when made or that,
although correct and complete when made, is no longer complete and correct.
6
Exhibit R App. 124
REQUESTS FOR ADMISSIONS
Admit or deny the following:
Admission No. 1. 8650 Frisco, LLC received money from Los Cucos Mexican
Café VIII, LLC.
Admission No. 2. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as a loan.
Admission No. 3. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as an investment.
Admission No. 4. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe VIII, LLC.
Admission No. 5. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe VIII, LLC.
Admission No. 6. 8650 Frisco, LLC received money from Los Cucos Mexican
Cafe IV, LLC.
Admission No. 7. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe IV, LLC as a loan.
Admission No. 8. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VI, LLC as an investment.
Admission No. 9. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe IV, LLC.
Admission No. 10. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe IV, LLC.
Admission No. 11. 8650 Frisco, LLC received money from Manuel Cabrera.
Admission No. 12. 8650 Frisco, LLC intended to treat the money it received
from Manuel Cabrera as a loan.
Admission No. 13. Admit that 8650 Frisco, LLC intended to treat the money it
received from Manuel Cabrera as an investment.
Admission No. 14. 8650 Frisco, LLC intended to repay the money it received
from Manuel Cabrera.
7
Exhibit R App. 125
Admission No. 15. 8650 Frisco, LLC did not intend to repay the money it
received from Manuel Cabrera.
Admission No. 16. 8650 Frisco, LLC received money from Sergio Cabrera.
Admission No. 17. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as a loan.
Admission No. 18. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as an investment.
Admission No. 19. 8650 Frisco, LLC intended to repay the money it received
from Sergio Cabrera.
Admission No. 20. 8650 Frisco, LLC did not intend to repay the money it
received from Sergio Cabrera.
Admission No. 21. 8650 Frisco, LLC received equipment from Los Cucos
Mexican Cafe IV, LLC.
Admission No. 22. 8650 Frisco, LLC received furniture from Los Cucos Mexican
Cafe IV, LLC.
Admission No. 23. 8650 Frisco, LLC is currently using equipment it received
from Los Cucos Mexican Cafe IV, LLC.
Admission No. 24. 8650 Frisco, LLC is currently using furniture it received from
Los Cucos Mexican Cafe IV, LLC.
Admission No. 25. 8650 Frisco, LLC is currently using equipment paid for by
from Los Cucos Mexican Cafe IV, LLC.
Admission No. 26. 8650 Frisco, LLC is currently using furniture paid for by Los
Cucos Mexican Cafe IV, LLC.
Admission No. 27. 8650 Frisco, LLC did not pay Los Cucos Mexican Cafe IV,
LLC for any equipment or furniture.
Admission No. 28. Los Cucos Mexican Cafe IV, LLC did not gift furniture to
8650 Frisco, LLC.
8
Exhibit R App. 126
Admission No. 29. Los Cucos Mexican Cafe VIII, LLC did not gift money to
8650 Frisco, LLC.
Admission No. 30. Admit that Manuel Cabrera did not gift money to 8650
Frisco, LLC.
Admission No. 31. Sergio Cabrera did not gift money to 8650 Frisco, LLC.
Admission No. 32. 8650 Frisco, LLC is currently operating at a net profit.
Admission No. 33. 8650 Frisco, LLC is currently operating at a new loss.
Admission No. 34. 8650 Frisco, LLC is currently using the name Estilo Goucho
Brazilian Steakhouse.
Admission No. 35. 8650 Frisco, LLC is has been using the name Estilo Goucho
Brazilian Steakhouse since February, 2013.
Admission No. 36. 8650 Frisco, LLC has assigned, in writing, its rights to the
mark Estilo Gaucho Bazilian Steakhouse to Bahtche, LLC.
Admission No. 37. 8650 Frisco, LLC has not assigned, in writing, its rights to the
mark Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.
Admission No. 38. 8650 Frisco, LLC has received compensation from Bahtche,
LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.
Admission No. 39. 8650 Frisco, LLC has not received compensation from
Bahtche, LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.
Admission No. 40. Estilo Gaucho Brazilian Steakhouse is a trade name of 8650
Frisco, LLC.
Admission No. 41. 8650 Frisco, LLC does business as Estilo Gaucho Brazilian
Steakhouse.
9
Exhibit R App. 127
Requests for Production
Request No. 1. Produce all documents and records provided to or received from
8650 Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA,
Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650
Frisco, LLC.
Request No. 2. Produce all documents and records in the possession of 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.
Request No. 3. Produce all financial records of 8650 Frisco, LLC.
Request No. 4. Produce all accounting records of 8650 Frisco, LLC.
Request No. 5. Produce all bank statements of 8650 Frisco, LLC.
Request No. 6. Produce all point of sale data and reports related to 8650 Frisco,
LLC.
Request No. 7. Produce all tax records (including all 1099 forms, W-2 forms, and
K-1 forms) related to 8650 Frisco, LLC.
Request No. 8. Produce all communications and correspondence with 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.
Request No. 9. Produce all payroll records for 8650 Frisco, LLC.
Request No. 10. Produce all records of money received from any Plaintiff in this
lawsuit.
Request No. 11. Produce all records of money paid or distributed to any Plaintiff
in this lawsuit.
Request No. 12. Produce all correspondence and communications with each
Plaintiff in this lawsuit.
Request No. 13. Produce all agreements, including all drafts of agreements,
between the Parties, which relate in any way to 8650 Frisco, LLC.
10
Exhibit R App. 128
Request No. 14. Produce all leases and related documents (e.g., guarantees),
which relate to the premises currently occupied by 8650 Frisco, LLC.
Request No. 15. Produce all records of financial transactions between 8650
Frisco, LLC and Claudio Nunes.
Request No. 16. Produce all records of financial transactions between 8650
Frisco, LLC and David Jeiel Rodrigues.
Request No. 17. Produce all corporate records of 8650 Frisco, LLC.
Request No. 18. Produce quarterly and annual profit and loss statements for
8650 Frisco, LLC from its creation through the present (update quarterly through trial).
Request No. 19. Produce quarterly and annual balance sheet statements for 8650
Frisco, LLC from its creation through the present (update quarterly through trial).
Request No. 20. Produce all communications and correspondence related to any
of the Plaintiffs in this lawsuit.
Request No. 21. Produce all records of cash receipts and cash deposits for 8650
Frisco, LLC.
Request No. 22. Produce all records, including invoices, for all equipment and
furniture purchased for use by 8650 Frisco, LLC.
Request No. 23. Produce all documents which reflect or relate to the application
to the United States Patent and Trademark office for the mark Estilo GAucho Brazilian
Steakhouse.
Request No. 24. Produce the assignment of ownership rights for the mark Estilo
Gaucho Brazilian Steakhouse to Bahtche, LLC.
Request No. 25. Produce documents reflecting the exchange of compensation by
and between 8650 Frisco, LLC and Bahtche, LLC, related to the mark Estilo Gaucho
Brazilian Steakhouse.
11
Exhibit R App. 129
FIRST SET OF INTERROGATORIES
Interrogatory No. 1. Identify and explain in detail the terms upon which Los
Cucos Mexican Cafe VIII, LLC provided money to 8650 Frisco, LLC.
Interrogatory No. 2. If you contend that the money provided to 8650 Frisco, LLC
by Los Cucos Mexican Cafe VIII, LLC was a loan, describe in detail the basis of that
contention and terms of the loan.
Interrogatory No. 3. If you contend that they money provided to 8650 Frisco,
LLC by Los Cucos Mexican Cafe VIII, LLC was an investment, describe in detail the
basis of that contention and terms of the investment.
Interrogatory No. 4. Identify and describe in detail the equipment and
furnishings provided to 8650 Frisco, LLC by Los Cucos Mexican Cafe, IV.
Interrogatory No. 5. If you contend that the parties had an agreement as to 8650
Frisco, LLC’s use of the equipment and furniture provided to 8650 Frisco, LLC by Los
Cucos Mexican Cafe, IV, identify and describe in detail the basis of that contention and
terms of the agreement.
Interrogatory No. 6. Identify and describe in detail the source, date of purchase,
and cost of all equipment and furnishings used at 8650 Frisco, LLC.
Interrogatory No. 7. Detail the circumstances and terms under which the mark
Estilo Gaucho Brazilian Steakhouse was transferred to Bahtche, LLC.
12
Exhibit R App. 130
No. 20 14-10896
LOS CUCOS MEXICAN CAFE VIII, INC., ET AL. § IN THE DlSTRICl' CO URT OF
§
§
vs. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC D/8/A ESTJLO GAUCHO §
BRAZ1LIAN STEAKHOUSE, ET AL. § 133rd JUDIC IAL DISTRICT
NOTICE OF INTENTION
TO TAKE DEPOSITION BY WIUTTEN QUESTIONS
To Defendants by and through their attorney of record: Nichohts Mosser
To other party/parties by and through their attorney of record: Kelly D. Stephens
You will please take notice that on May 26. 20 14 at I 0:00 a. m. a deposition by written questions will be taken of the Custodian of
Records for:
Holtmnn & Company, LLC
876 Loop 337, Suite SOl , New Braunfels, TX 78 130
before a Notary Public for Gulfstream Leg!tl Gt·oup, LLC
1300 TCXIIS St.
llouston, TX 77002
Ph: 713-237-4700 //Fax: 888-559-7431
or its designated agent, which deposition with attached questions may be used in evidence upon the trial of the above-styled and
numbered cause pending in the above-named court. Notice is fUI1her given that request is hereby made as authorized under Rule
200, Texas Rules of Civil Procedure, to the office!' laking this deposition to issue a subpoena duces tecum and cause it to be
served on the witness to produce any and all records as 2 Ohio App. 131
 DEPOSITION SlJ BPOENA TO TESTIFY OR PRODUCE DOCITMENTS OR T HINGS
THE STATE OF TEXAS
To any Sheriff or Constable of the State of Texas or other person authorized to serve subpoenas under Rule 176 of the Texas Rules of
Civil Procedure - GREETINGS •
You are hereby commanded to subpoena and summon the Custodian of Records for:
Holtman & Company, LLC
876 Loop 337, S uite 501 , New Bra unfels, TX 78 130
to be and appear before a Notary Public of my designation for Gulfstr eo m Legal G r o up, LLC, 1300 Texas St., Hous to n, T X 77002
or its designated agent on May 26. 20 14 at I0:00 a.m. at the office of the custodian, and there under oath to make answers of certain
written questions to be propounded to the witness and to bring and produce for inspection and photocopying
ANY AN D ALL R ECORDS (WHETH E R T YPED, HANDWRITT EN OR C OMPUTER-GEN E RATED)
P E RTAINING TO 8650 FRISCO LLC, including but no t limited to any ty pe of financial r ecords; accounting r ecords;
ba nk s ta tem ents; tax r ecords (including 1099 fo rms, W-2 fo rms a nd K-1 forms); r e ports; leases; guar a nties; reco rds of
trademarks and o ther intellectual property; office notes; correspo ndence; a nd printouts of any type of data stored in
e lectro nic format, including any e-ma il transm ission(s)
then and there to give evidence and there remain from day to day and time to time until discharged according to law at the instance of
the Plaintiff, Los Cucos Mexican Cafe VIII, Inc., et at., represented by Andrew Meade, Attorney of Record, in that certain Cause No.
2014-10896 pending on the docket of the District Court of the 133rd Judicial District of Harris County, Texas.
This Subpoena is issued under and by virtue of Rule 200 and Notice of Deposition Upon Written Questions on file with the above-
named court, Sl) led
LOS CUCOS MEXICA CAFE VIII, INC., ET AL. vs.
8650 FRI CO. LLC 0 /BfA ESTlLO GAUCHO BRAZI LIAN STEAKHOU E, ET AL.
WJ TNESS MY HAND, this .2/sr dayofApril,2014 .
(---~ &~
~,,,,,,,
````~.'~i,:;•,., MICHAEl R. MillER
r;~·t\ Notory Public. Slota of Texas
\~).~.·:..l My Commtssion Expires
.,,;:,{.~.:``~"'' November 08. 2014 NOTARY PUBLIC~ L__)
176.8 Enrorccmcnt or Subpoena. (a) Contempt. Failure by any person ''ithout adequate cxcu~c to obey u subpoena served upon thaL1x:rson mn) be
dccmc.:d a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served. and may be
punished by fine or conlinemenL or both.
OFFICER' RETU RN
Came to hand this ___ day of _ __ _ _ _, 20__ . and executed this the _ _ day of _ _ _ _ _ _ , 20_ _, in the
following manner. By delivering to the witness-- - - - - - - - - - - - - - - - - · a true copy hereof.
Returned this _ _ _ day of _ _ __ _ _ _ , 20
Order No. 509 1.002 PROCCSS SERVER
Exhibit R App. 132
No. 2014-10896
LOS CUCOS MEXICAN CAFE VIII, iNC., ET AL. § IN THE DISTIUCT COURT 0~
§
§
vs. § HARRIS CO UNTY, TEXAS
§
8650 FRISCO, I.IJC D/8/A ESTILO GAUCHO §
BRAZILIAN TEAKJIOUSE, ET AL. § 133rd JUDICIAL DISTRICT
DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS
Custodian of Records for: Holtman & Company, LLC
Type of Records:
ANY AND ALL RECORDS (WHETHER TVI•EO, IIANOWRITTEN OR COMPUTER-GENERATED) PERTAINING
TO 8650 FRISCO LLC, including but not limited to any ty pe of limlllcial records; accounting records; bank statements;
tax records (including 1099 forms, W-2 forms and K-1 forms); repo11s; leases; guaranties; records of trademarks and
other intellectual property; office notes; correspondence; nnd printouts of a ny type of darn stoted in electl·onic format,
including any e-ma il transmission(s)
I. Please state your fu ll name.
Answer: _________________________________________________________________________
2. Please state by whom you are employed and the business address.
Answer: -------------------------------------------------------------------
3. What is the title of your position ot· job?
Answer: _________________________________________________________________________
4. Have you accepted the subpoena duces tecum accompanying these direct questions?
Answer: _________________________________________________________________________
5. Are these memoranda, reports, records, or data compilations out I ined in the subpoena duces tecum in your custody ot· su~ject
to your control, supervision or direction?
Answer: ---------------------------------------------------------------------
6. Arc you able to identify these aforementioned records as the originals or true and correct copies of the originals?
Answer: _______________________________________________________________________
Order No. 5091.002
Exhibit R App. 133
7. Please hand to the Officer taking this deposition copies of the memoranda, repons, records, or data compilations mentioned in
Question No. 5. Have you complied? If not, why?
Answer:
----------------------------------------------------------------------------
8. Are the copies which you have handed to the Officer taking this deposition true and coJt ect copies of such memoranda,
repo11s, records or data compilations?
Answer: -------------------------------------------------------------------------------
9. Were such memoranda, reports, records, or data compi lations kept in the regular course of business of this facility?
Ans\Yer: _______________________________________________________________________________
10. Was it in the regular course of business ofthis facility for a person with knowledge of the acts, events, conditions, opinions or
diagnoses recorded to make the reco1·d or to transmit information thereof to be included in such record?
Answer: -------------------------------------------------------------------------------
II. Were the entl'ies on these records made at or shortly aller the time of the transaction recorded?
Answer:
----------------------------------------------------------------------------
12. Was the method of preparation of these records trustworthy?
Answer:
----------------------------------------------------------------------------
WITNESS (Custodian of Records)
Before me, the undersigned authority, on this day personally appeared the witness, known to me to be rhc person whose
name is subscribed to the foregoing instrument in the capacity therein slated, who being first duly sworn, stated upon his/her oath
that the answers ~o the foregoing questions a1•e true and correct. J further certify that the records attached hereto are exact
duplicates of the original records.
SWOR.!'l TO 1\ND SUBSCRIBED before me this - - - - - day of _ _ _ _ _ _ _ _ __ . 20_ _ _.
NOTARY PUBLIC
My Commission Expires: --------------------------
Order No. 509 L.002
Exhibit R App. 134
~ From:Hidhol as 0. Mosser 972 287 5072 04/ 2.212014 14:13 11023 P. 001 / 001
MOSSER LAW PLLC
! 171 10D AU.ASP.ARKWAY, SUITE 290 • DAlLAS, TEXAS 75248 • 972-733-3223 • FAX: 972-267-5072
i MOSSI&LAW.COM
April 22, 2014
Via Facsimile: (830)625-1498
. Hal Holtman, CPA ·
Holtman an.d Company LLC
876 LOOP 337 BLDG 501
NEW BRAUNFELS TX 78130
RE: 8650 Frisco LLC
Dear Mr. Holtman:
We are hereby instructing you not to respond to any document requests from
los Cucos Mexican Cafe IV, Inc., Los Cucos Mexican Cafe VIII, Inc., Sergio Cabrera,
Manuel Cabrera, Mr. Stephens, or Mr. Meade. The requests are Improper and have not
been signed pursuant to the Texas Rules. Furthermore, any responsive document is
covered by the privilege contained in the Te~as Occupations Code Section 901.457 and
in your ethical duties ·contained in 22 TAC § 501 .75. You do not have permission to
release ANY documents to ANY person other than the undersigned. If you wish to
make any response, it should be that all information is covered by the accountant-client
privile u must withhold all responsive documents.·
Exhibit R
Exhibit 3 Ohio App. 135
- ----------~
From:Hi cholas D. Mosser 972 287 5072 04/ 22/ 2014 18:53 1027 P. 001 / 001
MOSSER LAW PLLC
1 17 11 0 DAI.U.S P ARXWAY, SU1TE290 • DAllAS, TExAs 75248 • 972-733-3223 • FAX: 972-267-5072
; MOSSDLAW.COM
April22,2014
Via Facsimile: (830)625-1498
Hal Holtman, CPA
Holtman and Company LLC.
876 LOOP 337 BLDG 501.
NEW BRAUNFELS TX 78130
RE: 8650 Frisco .LLC
Dear Mr. Holtman:
This office represents 8650 Frisco LLC, Please produce ALL DOCUMENTS related to
8650 Frisco LLC to the undersigned no later than 5:00 pm April 25, 20:14.
Once you have produced those documents, you are instructed to de~troy all copies and
backups of that data, as it is confidential and protected by statute.
Exhibit R App. 136
~ From:Hidhol as 0. Mosser 972 287 5072 04/ 2.212014 14:13 11023 P. 001 / 001
MOSSER LAW PLLC
! 171 10D AU.ASP.ARKWAY, SUITE 290 • DAlLAS, TEXAS 75248 • 972-733-3223 • FAX: 972-267-5072
i MOSSI&LAW.COM
April 22, 2014
Via Facsimile: (830)625-1498
. Hal Holtman, CPA ·
Holtman an.d Company LLC
876 LOOP 337 BLDG 501
NEW BRAUNFELS TX 78130
RE: 8650 Frisco LLC
Dear Mr. Holtman:
We are hereby instructing you not to respond to any document requests from
los Cucos Mexican Cafe IV, Inc., Los Cucos Mexican Cafe VIII, Inc., Sergio Cabrera,
Manuel Cabrera, Mr. Stephens, or Mr. Meade. The requests are Improper and have not
been signed pursuant to the Texas Rules. Furthermore, any responsive document is
covered by the privilege contained in the Te~as Occupations Code Section 901.457 and
in your ethical duties ·contained in 22 TAC § 501 .75. You do not have permission to
release ANY documents to ANY person other than the undersigned. If you wish to
make any response, it should be that all information is covered by the accountant-client
privile u must withhold all responsive documents.·
Exhibit R
Exhibit 4 Ohio App. 137
- ----------~
From:Hi cholas D. Mosser 972 287 5072 04/ 22/ 2014 18:53 1027 P. 001 / 001
MOSSER LAW PLLC
1 17 11 0 DAI.U.S P ARXWAY, SU1TE290 • DAllAS, TExAs 75248 • 972-733-3223 • FAX: 972-267-5072
; MOSSDLAW.COM
April22,2014
Via Facsimile: (830)625-1498
Hal Holtman, CPA
Holtman and Company LLC.
876 LOOP 337 BLDG 501.
NEW BRAUNFELS TX 78130
RE: 8650 Frisco .LLC
Dear Mr. Holtman:
This office represents 8650 Frisco LLC, Please produce ALL DOCUMENTS related to
8650 Frisco LLC to the undersigned no later than 5:00 pm April 25, 20:14.
Once you have produced those documents, you are instructed to de~troy all copies and
backups of that data, as it is confidential and protected by statute.
Exhibit R App. 138
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFÉ § IN THE DISTRICT COURT OF
VIII, INC., LOS CUCOS MEXICAN §
CAFÉ IV, INC., MANUEL §
CABRERA, and SERGIO §
CABRERA §
PLAINTIFFS, §
§
V. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN §
STEAKHOUSE, MANDONA, §
LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO §
NUNES and DAVID JEIEL §
RODRIGUES §
DEFENDANTS. § 133rd JUDICIAL DISTRICT
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO COMPEL
AND FOR SANCTIONS
Defendants, 8650 Frisco, LLC, d/b/a Estilo Gaucho Brazilian Steakhouse,
Mandona, LLC, Galovelho, LLC, Bahtche, LLC, Claudio Nunes, and David
Jeiel Rodrigues, file this Response to Plaintiffs' Motion to Compel and for
Sanctions.
INTRODUCTION
1. Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café
IV, Inc., Manuel Cabrera, and Sergio Cabrera, sued defendants, 8650
Frisco, LLC, d/b/a Estilo Gaucho Brazilian Steakhouse, Mandona, LLC,
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 1 of 20
Exhibit R
Exhibit 5 Ohio App. 139
 Galovelho, LLC, Bahtche, LLC, Claudio Nunes, and David Jeiel
Rodrigues, for inter alia breach of contract and conversion.
2. Plaintiffs and their counsel have attempted to needlessly drive up the
cost of this litigation, by routine failures to follow the Texas Rules of Civil
Procedure and attempting to gain access to confidential information
protected by statute in the possession of non parties. In addition
Plaintiffs counsel has acquired information protected by statute and
owned by Defendants, specifically financial documents acquired
unlawfully from Hal Holtman.
3. Plaintiffs have further used subpoenas to circumvent the appropriate
discovery process in an effort to obtain more confidential and statutorily
protected documents rather than issue proper requests for production
directed at the parties so the parties may give objections and allow the
court to determine their validity and proper access to these protected
documents. (Platinffs conduct is no different from directing a subpoena
to a lawyer representing Defendants to produce documents rather than
the Defendants themselves. )
4. Discovery in this suit is governed by a Level 3 discovery-control plan.
The discovery period will end on February 5, 2015.
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 2 of 20
Exhibit R App. 140
5. This case has not been set for trial.
6. Defendants are patiently waiting on the transcript from the Temporary
Injunction hearing, where Plaintiffs testified and perjured themselves in
order to make venue facts and their affidavits were in fact false, prior to
setting the motion to transfer venue for hearing. This perjury was
suborned by Plaintiffs’ attorney.
BACKGROUND
7. On or about March 26, 2014 Defendant 8650 Frisco LLC terminated Hal
Holtman and Holtman and Company LLC. Mr. Holtman was previously
employed by 8650 Frisco LLC as a CPA licensed by the State of Texas
and governed by the Texas Occupations Code sections 901 et seq.
8. On or about March 26, 2014 Mr. Holtman was instructed to turn over
ALL DOCUMENTS related to 8650 Frisco LLC to Defendant’s new CPA
or to Defendant.
9. Mr. Holtman refused this request, and instructed both Defendant’s new
CPA and Defendants that he was “unsure of who his client was” and
was advised by Plaintiffs’ counsel that he should not turn over any files
until after the Temporary Injunction Hearing. The Temporary Injunction
was denied.
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 3 of 20
Exhibit R App. 141
10. Subsequent to this conversation, Defendants’ Counsel sent a cease and
desist letter dated March 27, 2014 to Kelly Stephens, Counsel for
Plaintiff, instructing Plaintiffs to refrain from accessing computers owned
by Defendants and instructing Plaintiffs to turn over all documents
improperly obtained from Holtman. In addition the cease and desist
letter directed Plaintiffs to immediately cease their interference with the
accountant - client relationship between 8650 Frisco LLC and Holtman.
Exhibit A.
11. Plaintiffs ignored this demand, and subsequently violated federal law by
logging into Defendants’ computer network, issuing subpoenas to
Holtman, and obtaining files from Holtman.
12. Plaintiffs then presented a witness who claims that he never accessed
the computer files, rather the files were emailed to him automatically.
Each and every witness Plaintiffs have ever presented have perjured
themselves with the help and assistance of Plaintiffs’ counsel, suborning
the perjury.
13. After determining that Plaintiff would continue to interfere with the
accountant client relationship, and attempt to improperly obtain files
directly from Holtman, Defendants instructed Holtman to TURNOVER
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 4 of 20
Exhibit R App. 142
ALL DOCUMENTS and destroy his BACKUPS. Un-labeled Exhibit to
Plaintiffs Motion to Compel and for Sanctions.
ARGUMENT & AUTHORITIES
14. Plaintiffs counsel misrepresents facts, yet again, to the Court. Plaintiffs’
motion is frivolous and should be denied. All costs and attorney’s fees
incurred in the filing of this response should be taxed against Plaintiffs
and awarded to Defendants.
15. Plaintiffs purport to request of a non party Hal Holtman, a subpoena,
deposition on written questions and document, unsigned and improperly
issued. See Subpoena attached to Plaintiffs’ Motion to Compel and
Sanctions.
16. Plaintiffs’ subpoena is improper and fails to comply with the Texas
Rules. As such, the Subpoena is void and does not require compliance.
Sapp v. King, 66 Tex. 570, 1 S.W. 466 (1886). 128 years ago the Texas
Supreme Court determined that Plaintiffs’ subpoenas were void and no
one needed to comply. Id. Despite Plaintiffs’ assertion that “no court has
ever determined (or has been asked to determine) that the requests
were improper or excused Holtman’s compliance with the subpoena” a
void request does not require a court to determine if it is enforceable. If
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 5 of 20
Exhibit R App. 143
the request is VOID it can never be enforceable. Wichita County v.
Robinson, 155 Tex. 1, 11, 276 S.W.2d 509, 515 (TEX. 1955)(Holding
an act declared to be void, is void from the beginning and was never
valid nor enforceable at any time.).
17. The Subpoena is improper for numerous reasons, as have been
explained to both Gulf Stream Legal Group LLC and to Plaintiffs’
counsel– Defendants incorporate this letter herein by reference, in haec
verba. See Letter Dated April 21, 2014 to Kelly Stephens, CCed to Gulf
Stream Legal Group LLC.
18. The Subpoena requests documents and Plaintiffs have failed to comply
with Tex. R. Civ. P. 205, this rule requires an additional 10 days notice
given to each party prior to document production request directed at non
parties. Tex. R. Civ. P. 205.
19. In addition, this notice of deposition is not signed by an attorney. Tex.
R. Civ. P. 191. 3. Plaintiffs had a lawyer sign the certificate of service,
but not the actual notice, nor the actual questions served on the non
party. See Notice of Deposition attached to Plaintiffs’ Motion to Compel
and Sanctions.
20. The failure of a lawyer to sign the notice, renders the request a nullity,
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 6 of 20
Exhibit R App. 144
no court is required to determine this issue. Tex. R. Civ. P. 191.3(d)(“If
a request, notice, response, or objection is not signed, it must be striken
unless it is signed promptly after the omission is called to the attention
of the party making the request, notice, response, or objection. A party
is not required to take any action with respect to a request or
notice that is not signed.”)(emphasis added). Certainly, if a party is not
required to respond, a non party is afforded a higher level of protection
and therefore is not required to answer frivolous requests either.
21. Plaintiffs argue that Jeremy Masten signed the requests, this is certainly
not true, as there is a horizontal page break, and certificate of service
language above what purports to be Mr. Masten’s signature. See
Plaintiffs’ Exhibit 2 attached to Plaintiffs’ Motion to Compel and for
Sanctions. This is a separate requirement from signing the discovery
request itself. Plaintiffs have simply failed to comply with the rules and
attempt to back into the compliance by arguing that the signing of the
certificate of service is the signing of the document.
22. Plaintiffs misrepresent the request to destroy BACKUPS of documents
owned by Defendant and blow it out of proportion, by relating the
request to an instruction to a witness to destroy documents. See
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 7 of 20
Exhibit R App. 145
Plaintiffs’ Emergency Motion to Compel and for Sanctions, ¶7.
23. This accusation is a waste of the litigants time as well as the courts, and
is plainly a silly argument.
24. After Holtman was terminated, instructed to return documents, and
agreed to return documents, Holtman was instructed again to deliver all
documents in his possession owned by 8650 Frisco LLC to Defendants’
Counsel’s office. This request is not uncommon as Holtman has no
possessory interest in the documents, no right to the documents, and
the statute and his ethical obligations indicate that the documents are
those of his clients. See Texas Administrative Code Rule §501.76 and
Tex. Occ. Code § 901.457.
25. The Texas Rules of Civil Procedure state that subpoena’s should not be
utilized to circumvent the traditional rules of discovery. Tex. R. Civ. P.
176.3(b).
26. Plaintiff contends that by issuing the subpoena, no objection by
Defendants would be valid. Plaintiffs’ Motion to Compel and for
Sanctions, FN 2 (Rule 176.6(d) does not provide for objections to be
filed by anyone other than the person commanded to comply with the
subpoena. Accordingly, any objections, as such, by Defendants to the
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 8 of 20
Exhibit R App. 146
Notice would be improper and should be overruled.”).
27. However, because Plaintiff has ignored the requirement to serve a 10
day notice prior to issuing the subpoena he has failed to comply with the
Texas Rules. Tex. R. Civ. P. 200; 199.2; 205. This failure to issue the
proper notice, and properly comply with the subpoena rules, renders
Plaintiffs’ request moot, as it is void.
28. Even if Plaintiff is correct and there is no statute governing the
protection of documents between accountant and client, these
documents are owned by Defendant 8650 Frisco LLC and not the
accountant. In re Kuntz, 124 S.W.3d 179, 184 (Tex.,2003); Cf. In re
Grand Jury Subpoena (Kent), 646 F.2d 963, 969 (5th Cir.1981) (“The
[employee's] subpoena, if upheld, would be illegal because it would
direct her to produce documents not in her possession, custody, or
control. Because [employee] had mere access, her compliance with the
subpoena would have required that she illegally take exclusive
possession of [her employer's] documents and deliver them to the grand
jury.”).
29. Holtman’s possession of the documents and enforcement of the
subpoena would require Holtman to improperly turn over documents
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 9 of 20
Exhibit R App. 147
under the possession, custody and control of Defendants. In re Shell E
& P, Inc., 179 S.W.3d 125, 131 (Tex.App.–San Antonio,2005)
30. Plaintiffs’ requests should be directed at Defendants in this matter, so
that Defendants may properly object, and defend against an improper
invasion of their rights. Id.
31. However, the Texas Occupations Code controls, Section 901.457
labeled “Accountant Client Privilege” imposes a duty on CPAs not to
disclose information outside of certain limited situations. Tex. Occ. Code
§ 901.457. The Texas Legislature decided that this was a privilege
owed to the client by the Certified Public Accountant.
32. Plaintiff contends that Courts are not bound by statutes, “no court has
elevated the professional standard established by this statue to an
evidentiary privilege under Texas Law.” Plaintiffs’ Motion to Compel, pg
6 citing Canyon Partners, L.P. v. Developers Diversified Realty Corp.
Cause No. No. 3–04–CV–1335–L, 2005 WL 5653121, 1 (N.D.Tex.,
2005). Plaintiff similarly cites In re Arnold for the same proposition. In re
Arnold, Cause No. 13–12–00619–CV, 2012 WL 6085320, 1 (Tex.App.-
Corpus Christi,2012).
33. Neither the Thirteenth District Court of Appeals cases nor the Norther
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 10 of 20
Exhibit R App. 148
District of Texas Case have precedential value only persuasive value.
In re Devon Energy Corp., 332 S.W.3d 543 (Tex. App. Houston 1st Dist.
2009) (Holding Texas Courts are not bound by opinions from Federal
District Courts or Appeals Courts on state law issues); Simien v. Unifund
CCR Partners 321 S.W.3d 235, 245 (Tex.App.–Houston [1 Dist.], 2010)
(Determining and citing other cases for the proposition that Courts of
appeals are not bound by the decisions of sister appeals courts in
Texas.).
34. More precedential is a pronouncement from the Texas Supreme Court.
“Enforcing the law as written is a court's safest refuge in matters of
statutory construction, and we should always refrain from rewriting text
that lawmakers chose....” Entergy Gulf States, Inc. v. Summers, 282
S.W.3d 433, 443 (Tex.2009).
35. “The plain meaning of the text, given the context of the statute as a
whole, provides the best expression of legislative intent.” Liberty Mut.
Ins. Co. v. Adcock, 412 S.W.3d 492, 494 (Tex.,2013).
36. Finally, a court “ must enforce the plain meaning of an unambiguous
statute.” Tune v. Texas Dept. of Public Safety. 23 S.W.3d 358, 363
(Tex.,2000).
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 11 of 20
Exhibit R App. 149
37. The plain meaning of Section 901.457 imposes a privilege similar to
that of a lawyer upon CPAs. There can be no other interpretation, a
privilege exists. The legislature has spoken, the courts must enforce its
plain language. Tune v. Texas Dept. of Public Safety. 23 S.W.3d 358,
363 (Tex.,2000).
38. Plaintiffs further cite to Sims v. Kaneb Services, Inc. as further authority
that there is no privilege. Sims v. Kaneb Services, Inc., 1988 WL
62294, 1 (Tex.App.-Hous. 14 Dist.,1988). Plaintiff is absolutely correct,
if we were in 1988 there would be no privilege–because in 1988,
Section 901.457 of the Texas Occupations Code did not yet exist.
39. This argument lacks merit and even basic research, because Section
901.457 of the Texas Occupations Code was enacted in 1999. Acts
1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts
2001, 77th Leg., ch. 1497, § 31, eff. Sept. 1, 2001; Acts 2013, 83rd
Leg., ch. 36 (S.B. 228), § 2, eff. Sept. 1, 2013.
Accusations of Felonious Conduct
40. Plaintiffs continue their tirade by accusing Mosser of a felony. See
Section III, Plaintiffs Motion to Compel and for Sanctions.
41. No felony has been committed by the Defendants or their lawyers and
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 12 of 20
Exhibit R App. 150
Plaintiffs accusations lack merit.
42. Initially, Plaintiffs embellish the request made of Mr. Holtman. “Mr.
Mosser has asked Defendants’ former accountant to destroy every
single document related to 8650 Frisco.” Plaintiffs Motion to Compel
and for Sanctions, ¶28.
43. As plaintiff clearly attaches to his pleadings the exact letter, which
managed to end up in Plaintiffs possession in violation of Section
901.457, the letter requests that the documents be preserved, and
delivered to a secure location so Mr. Holtman would not further
hemmorage documents protected by, at the very least a confidentiality
statute, or the privilege that the statute affords the client of the Certified
Public Accountant.
44. Mr. Holtman has already demonstrated to the Court under oath that he
willingly will divulge information to Plaintiffs and Plaintiffs’ attorneys,
therefore it is abundantly obvious that confidential and privileged
documents are not secure in his possession. See testimony of Holtman
at Temporary Injunction Hearing.
45. Mosser requested those confidential and privileged documents be
secured and transferred to an agent that would respect the law and not
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 13 of 20
Exhibit R App. 151
publish the documents to any one who asked.
46. The letter clearly states, ONCE YOU HAVE PRODUCED THOSE
DOCUMENTS, you are instructed to destroy all COPIES AND
BACKUPS. Exhibit to Plaintiffs Motion to Compel and Sanctions.
47. Given that the documents would be secure and in the hands of 8650
Frisco LLC (the client), or its counsel, no records would be destroyed,
altered, or concealed. Therefore, there would no violation of any law,
much less Tex. Penal Code § 37.09.
48. Furthermore, Section 37.09 of the Texas Penal Code further states,
“This section shall not apply if the record, document, or thing concealed
is privileged or is the work product of the parties to the investigation or
official proceeding.” Tex. Penal Code § 37.09(b).
49. Because no documents were destroyed, and unfortunately and in
violation of Texas Law, no documents were delivered to Defendants as
requested, none of Plaintiffs’ alleged wrongful conduct has occurred.
Even if Holtman followed this instruction, no wrongful conduct would
have occurred, the documents would not be concealed or destroyed,
they would be subject to a proper request for production directed at the
correct party, 8650 Frisco LLC, the true owner of the documents. Tex.
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 14 of 20
Exhibit R App. 152
Rawle Civ. P. 196.
The Proposed Sanction
50. Plaintiffs propose three preposterous sanctions for this hypothetical
crime. Plaintiffs Motion to Compel and Sanctions, ¶32.
51. Initially, given Plaintiffs’ supplement, this issue is now moot. No
documents were produced, no documents were destroyed, no
documents were ever going to be destroyed, and Plaintiffs have gotten
excited over a change in the location of the documents. Holtman, after
being reprimanded by the Texas State Board of Public Accountants,
understands the importance of retaining the client confidence, and has
stated he will comply with the confidentiality section of the Texas
Administrative Code, Rule 501.76.
52. Because no documents were destroyed, and never would have been,
a spoliation instruction would be improper. Brumfield v. Exxon Corp.,
63 S.W.3d 912, 920 (Tex.App.–Houston [14 Dist.],2002).
53. A court cannot make an instruction if evidence is not destroyed. Id. See
also Whiteside v. Watson, 12 S.W.3d 614, 621 (Tex.App.-Eastland
2000, pet. denied) (Spoliation is the improper destruction of evidence.).
54. The rebuttable presumption is a jury instruction, not an “order
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 15 of 20
Exhibit R App. 153
establishing” what evidence in existence states, as plaintiff contends.
See Paragraph 32(2), Plaintiffs Motion to Compel and for Sanctions.
55. Because the evidence still exists, has not be concealed, destroyed, or
altered, there can be no spoliation instruction much less and order
declaring evidence states something contrary to its contents.
56. Plaintiffs further request that their case be determined in this one
motion, “that plaintiffs are entitled to one half of the generated profits,
that plaintiffs are entitled to full repayment of the startup funds they
provided...” See Paragraph 32(2), Plaintiffs Motion to Compel and for
Sanctions.
57. Spoliation is a rebuttable presumption, not a means to conclude the
case before it even begins. Ordonez v. M.W. McCurdy Co., Inc., 984
S.W.2d 264, 273 and n. 11 (Tex.App.-Houston [1st Dist.] 1998, no pet.).
58. Plaintiffs other requests are similarly absurd. Plaintiffs request payment
for their subpoena, copying and shipping of the documents. In addition,
Plaintiffs request an order requiring Defendants’ counsel to pay for
Plaintiffs misapprehension of the letter, and the law, as well as refusing
to allow Defendants to support affirmative defenses. See Paragraph 32,
Plaintiffs Motion to Compel and for Sanctions.
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 16 of 20
Exhibit R App. 154
59. Because there is no “crime” not even a request to commit a “crime” and
no documents would have been destroyed, nor have any been
destroyed, there has been no wrongful conduct therefore no discovery
sanction is warranted. See Plaintiffs supplement to Plaintiffs Motion to
Compel and for Sanctions, letter from Hal Holtman.
The Motion
60. Plaintiffs’ Motion is further defective, as it seeks to compel production
prior to the date stated in his defective subpoena and notice for
deposition. Exhibit to Plaintiffs Motion to Compel and for Sanctions
(Subpoena and notice). Plaintiff contends this is an emergency, yet
continues to request this hearing after Holtman sent the letter stating he
would comply with his obligations and Texas law regarding client
information.
61. Furthermore, sanctions cannot be imposed for conduct that is not
wrongful. As even if Holtman complied with the instruction, NO
DOCUMENTS WOULD HAVE BEEN DESTROYED, they would simply
be in the possession of their owner, 8650 Frisco LLC.
62. Plaintiffs further have failed to serve Holtman as he is the party that
must be compelled to do some act. See Certificate of Service, Plaintiffs
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 17 of 20
Exhibit R App. 155
Motion to Compel and for Sanctions.
63. In addition, Plaintiff failed to make a reasonable attempt at conferencing
on this motion. No details were contained in Mr. Masten’s certificate of
conference of how he attempted to do this, nor what issues were
discussed at this “conference.” Defendants do confirm that Mr. Masten
left a vague and unintelligible voice mail concerning a possible motion,
but no details were identified. Furthermore, no conference was held on
Plaintiffs notice of hearing as required under Rule 191.2 of the Texas
Rules of Civil Procedure. See also Tex. R. Civ. P. 191.3(e).
CONCLUSION
64. Plaintiffs motion has no purpose other than to burden the Court and
harass the Defendants. Plaintiffs have made it clear that they are not
concerned with the law as they continue to perjure themselves with the
active assistance of their attorneys, ignore Texas Statutes, fail to follow
the Texas Rules of Civil Procedure, and seek motions with no basis in
law. Because there has been no wrongful conduct, merely a request for
Holtman to relocate the documents and deliver them to their owner,
there is no basis for sanctions or a motion to compel.
PRAYER
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 18 of 20
Exhibit R App. 156
65. Defendants pray the Court will deny Plaintiffs’ frivolous motion and order
Holtman to deliver the documents related to 8650 Frisco LLC to
Defendants’ counsel where the privilege will be enforced. Defendants
further request that the court award all necessary costs and attorney’s
fees to Defendants for the preparation and attendance at this hearing.
Defendants further request that Plaintiffs and their attorneys be referred
to the District Attorney with a copy of the transcript from Temporary
Injunction Hearing and the affidavit attached to the Application for the
TRO.
Respectfully submitted, MOSSER LAW PLLC,
/s/ Nicholas D. Mosser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
Benjamin Casey
Texas Bar No. 24087267
17110 Dallas Parkway Suite 290
Dallas, TX 75248
Tel. (972) 733-3223
Fax. (972) 267-5072
courtdocuments@mosserlaw.com
Lawyers for Defendants
CERTIFICATE OF SERVICE
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 19 of 20
Exhibit R App. 157
I certify that on May 10, 2014, a true and correct copy of this document was
served to the following pursuant to Texas Rules of Civil Procedure 21 &
21(a).
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
/s/ Nicholas D. Mosser
By: Nicholas D. Mosser
Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions 20 of 20
Exhibit R App. 158
4/24/2014 2:56:55 PM
Chris Daniel - District Clerk
Harris County
Envelope No: 1081864
By: PALMER, EVELYN J
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFE VIII,
INC.; LOS CUCOS MEXICAN
§
§
IN THE DISTRICT COURT OF f3
CAFE IV, INC.; MANUEL §
CABRERA; and SERGIO § fJ £AirX-
CABRERA, §
Plaintiffs §
v.
8650 FRISCO, LLC D/B/A ESTILO
§
§
§
§
HARRISCOU~TEXAS
~
~ *
GAUCHO BRAZILIAN § 0~
STEAKHOUSE; MANDONA, LLC;
GALOVELHO, LLC; BAHTCHE,
§
§
o{f?~
LLC; CLAUDIO NUNES; and
DAVID JEIEL RODRIGUES,
§
§ o@j ~
Defendants § 1~ .nJDICIAL DISTRICT
(')
0RD~
ON PLAINTIFFS' EMERGENCY Mo~"-ro COMPEL AND FOR SANCTIONS
,Q
The Court, having considered ~intiffs' Emergency Motion to Compel and for
~
Sanctions, the response, the argu~ of counsel, and the evidence, has determined that the
motion is meritorious and shoul~and is hereby GRANTED in its entirety. Specifically:
The custodian of rec``f Holtman & Company, LLC is hereby ORDERED to appear
o~
before a notary public f~position as subpoenaed by Plaintiffs on May 26,2014, at ~0:00a.m.
~
at the office of Gu!J:~am Legal Group, LLC, 16607 Blanco Road, Suite 1307, SarJ Antonio,
Texas 78232.
(/``
~">
©5
Th~dian of records ofHoltman & Company, LLC is hereby ORDERED to preserve
all documents and communications related to 8650 Frisco, LLC, including but not limited to
those records requested by Plaintiffs, in its possession, custody, or control, during the pendency
of this litigation.
Exhibit R
Exhibit 6 Ohio App. 159
 The Court FINDS that Defendants' counsel has abused the discovery process in resisting
discovery and has determined that the following sanctions are appropriate, that the following
sanctions satisfy the legitimate purposes of discovery sanctions, and that the following sanctions
are neither more nor less stringent than necessary to accomplish those purposes.
that all expenses of discovery a~ated
~([!jj;
underlying motio and the production o cuments by and from Holt~ & Comp
includin fees, and the b~re char
~nselr-------
osser, individually. Nicholas D. Mosser shall pay to Plain ·
within 10 days ofthe signing ofthis order. ~Q~
~ "~
IS FURTHER ORDERED that the follow``acts
~«?Qf
That 8650 Frisco, LLC ~ genera
existence. ~
2. That Plaintiffs are e~Q
©)
to one-
3. T t Plaintiffs a~entitled to full repayment of the startup funds t y
prov ed (in"<,``ount to b proven at trial) with interest at the high st
lawful te ~ '
~
4. That P~h are ent' led to reimbursement for wear and ear an
depr~dh oft eq pment they supplied to 8650 Frisco (in en a un
touoven at trial '
FURTu;s._~ ORDE that Defendants are P ITED from supp<.>rting a y
"W
"~ncludi
Exhibit R App. 160
furth imposition of sanctions r a holding of conte
oth.
DATED:`` l1 ~!lf
r (
Exhibit R App. 161
6/11/2014 2:07:32 PM
Chris Daniel - District Clerk Harris County
Envelope No. 1510270
By: AMANDA ARRIAGA
Cause No. 2014-10896
LOS CUCOS MEXICAN CAFE VIII, § IN THE DISTRICT COURT OF
INC.; LOS CUCOS MEXICAN CAFE IV, §
INC.; MANUEL CABRERA; AND §
SERGIO CABRERA, §
§
Plaintiffs, §
§
v. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC D/B/A ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE; §
MANDONA, LLC; GALOVELHO, LLC; §
BAHTCHE, LLC; CLAUDIO NUNES; and §
DAVID JEIEL RODRIGUES, §
§
Defendants. § 133rd JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO STAY ALL MATTERS
AND
PLAINTIFFS’ THIRD MOTION TO COMPEL
Plaintiffs file this response to Defendants’ Motion to Stay All Matters concurrently with
their Third Motion to Compel, asking the Court to deny Defendants’ motion to stay, to compel
Defendants to produce requested documents, and to compel Defendants (again) to appear for
deposition. Plaintiffs also ask the Court to award them the costs incurred in responding to
Defendants’ groundless, bad faith, and harassing motion, as well as Plaintiffs’ reasonable
expenses caused by Defendants’ failure to obey the Court’s original order compelling them to
appear for deposition. In support thereof, Plaintiffs respectfully show the Court the following:
HOW WE GOT HERE
1. Plaintiffs filed this lawsuit on March 3, 2014. Each of the defendants was served
by March 24, 2014. Two days later, March 26, 2014, Defendants jointly filed their Emergency
Exhibit R
Exhibit 7 Ohio App. 162
Motion to Transfer Venue. At that time, under Rule 87(1), TEX. R. CIV. P., Defendants could
have set a hearing on their motion to transfer as early as May 10, 2014. They did not.
2. On April 7, 2014, the Court held a hearing on Plaintiffs’ request for a temporary
injunction. At the end of the hearing, Defendants’ counsel verbally requested an expedited
hearing on their motion to transfer. The Court directed counsel to contact the clerk to schedule a
hearing. At that time, Defendants could have set their hearing as early as May 22, 2014. They did
not.
3. On May 12, 2014, the Court held a hearing on Plaintiffs’ motion to compel the
production of documents by an accountant formerly employed by both parties. Defendants again
noted their desire to transfer this lawsuit to Collin County. At that time, Defendants could have
set their hearing as early as June 26, 2014. They did not.
4. Instead, on June 3, 2014, Defendants filed a motion to stay all proceedings and set
the hearing on that motion for June 16, 2014. At the time Defendants obtained the hearing on the
motion to stay, Defendants could have set the hearing on the motion to transfer as early as July
18, 2014. They did not.
5. Meanwhile, on April 14, 2014, Plaintiffs served discovery requests on
Defendants. See Plaintiffs’ Exhibit 1, Plaintiffs’ Discovery Requests. On May 14, 2014,
Defendants served responses and numerous objections to Plaintiffs’ discovery requests,
specifically Plaintiffs’ requests for production. See Plaintiffs’ Exhibit 2, Defendants’ Discovery
Responses. Defendants produced 184 pages of documents, but withheld hundreds of pages more
that are responsive and discoverable.
6. Finally, Plaintiffs have been attempting to take the Defendants’ depositions for
over two months. At the hearing on May 12, the Court asked Defendants’ counsel to provide
dates on which he would be willing to produce his clients for deposition in Houston. Defendants’
counsel offered June 9 and 10, 2014. Plaintiffs accordingly served notices of deposition on
2
Exhibit R App. 163
Defendants for those dates. See Plaintiffs’ Exhibit 3, Deposition Notices.1 On June 8, 2014—the
day before the depositions were to be taken and after Plaintiffs’ counsel devoted substantial time
to preparing for the depositions—Defendants’ counsel informed Plaintiffs that Defendants would
not appear for deposition on the dates they had offered and filed a motion with the Court.
7. The story that has developed in this litigation is one of Plaintiffs attempting to
move forward and Defendants resisting the expeditious adjudication of the parties’ rights. The
blame for any delay in the prosecution of this lawsuit falls squarely at the feet of Defendants and
their counsel. In the interest of obtaining a fair, equitable, and impartial adjudication of the
parties’ rights with as great expedition and the least expense, see TEX. R. CIV. P. 1, the Court
should deny Defendants’ Motion to Stay, order Defendants to produce the documents they have
withheld, and order Defendants to appear for deposition in Houston, Texas.
ARGUMENTS & AUTHORITIES
8. The Court should deny Defendants’ motion to stay because it has no basis in law
or in fact. That is, it is expressly prohibited by Rule 88, TEX. R. CIV. P., and, even if it were not,
Defendants would not be entitled to stay these proceedings because they have intentionally
thwarted the expeditious adjudication of this matter.
I. Defendants’ motion to stay should be denied because it has no basis in law or fact.
A. Rule 88 prohibits the abatement of discovery during the pendency of a
motion to transfer venue.
9. Defendants have asked the Court to abate all discovery and all other activity in
this case while Defendants await the transcript of the temporary injunction hearing that occurred
over two months ago. Defendants ask the Court to exercise its discretion to protect them from
Plaintiffs’ prosecution of this lawsuit. Generally speaking, the Court has “inherent power to
1
Out of consideration for Defendants’ schedules, Plaintiffs’ counsel asked Defendants’ counsel to
identify the corporate representatives of each of the company defendants and offered to schedule
the corporate depositions accordingly. See Plaintiffs’ Exhibit 4, Meade Letter of May 12, 2014.
Defendants did not respond.
3
Exhibit R App. 164
control the disposition of the cases on its docket with economy of time and effort for itself, for
counsel, and for litigants.” In re A.E.A., 406 S.W.3d 404, 419–20 (Tex. App.—Fort Worth 2013,
no pet.) (internal quotations omitted) (citing Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.—
Houston [1st Dist.] 1994, writ denied)); Landis v. North American Co., 299 U.S. 248 (1936).
Defendants suggest that there is “no guiding light” for the Court’s exercise of its discretion.
10. Defendants apparently ignored Rule 88, which expressly provides that “Discovery
shall not be abated or otherwise affected by pendency of a motion to transfer venue.” TEX. R.
CIV. P. 88 (emphasis added). As the Dallas Court of Appeals explained: “The purpose of Rule 88
is to enable the parties to proceed with preparation for trial on the merits, promptly and
unhampered, so that the [motion to transfer venue] will not delay final disposition of the
suit.” Newman Oil Co. v. Alkek, 585 S.W.2d 340, 341 (Tex. Civ. App.—Dallas 1979, no
writ), citing Texas Land & Development Co. v. Myers, 239 S.W. 303, 304 (Tex. Civ. App.—San
Antonio 1922, writ dism’d).
11. Furthermore, “depositions before disposition of the [motion to transfer venue]
need not be limited to venue issues.” Newman Oil Co., 585 S.W.2d at 341. The rule in Texas is
that,
Once there has been a timely motion to transfer venue, a
defendant has no choice but to continue on in the venue in which
he finds himself, correct or not. See TEX. R. CIV. P. 88. To rule
otherwise would have the effect of tying the defendant’s hands and
force a Hobson’s choice. Nor do we think the defendant has to
engage in the meaningless ritual of adding the words “subject to
our motion for a change of venue” every time a motion is
made. See TEX. R. CIV. P. 88.
Nabors Loffland Drilling Co. v. Martinez, 894 S.W.2d 70, 72 (Tex. App.—San Antonio 1995,
writ denied) (emphasis added). In other words, “the only identified possible
bar,” see Defendants’ Motion to Stay at 8, is the only bar necessary to defeat Defendants’
motion.
4
Exhibit R App. 165
12. Accordingly, Defendants’ motion should be denied, and Plaintiffs should be
awarded their costs incurred in opposing the motion because Defendants’ motion has no basis in
law.
B. There is no reason why Defendants cannot set a hearing on their motion to
transfer.
13. When the hearing is held on Defendants’ motion to stay, this lawsuit will have
been pending in this Court for 105 days. During that time period, Plaintiffs requested a
temporary restraining order and a temporary injunction, requested documents from the former
and current accountants of the business in question, propounded written discovery to Defendants,
and have twice attempted to take the Defendants’ depositions. When Defendants instructed their
former accountant to withhold and destroy evidence, Plaintiffs promptly filed a motion and set a
hearing. When Defendants refused to appear for their properly noticed depositions the first time,
Plaintiffs promptly filed a motion and set a hearing. Plaintiffs will shortly file a second motion to
compel Defendants’ depositions because they refused to appear on the dates they provided, in
direct contravention of the Court’s order.
14. Defendants, on the other hand, have filed two dilatory motions and generally
sought to obstruct the expeditious adjudication of this matter. Defendants’ motion to stay is
merely the latest effort by Defendants to add expense and delay to this lawsuit.
15. Defendants have repeatedly claimed that they will set their motion to transfer for
hearing just as soon as they receive the transcript of the hearing held on April 7, 2014. See,
e.g., Defendants’ Motion to Stay at 5 (claiming that “because of Defendants[’] inability to set the
motion to transfer venue for hearing, hoping to secure the transcript from the court reporter”).
Defendants suggest that they need the transcript so that “the testimony of Plaintiffs perjuring
themselves could be put into the record appropriately.” See Defendants’ Motion to Stay at 5.
16. First, as a procedural matter, Plaintiffs’ testimony at the April 7 hearing is not
admissible on the issue of venue. Rule 87 provides that the Court “shall determine the motion to
5
Exhibit R App. 166
transfer on the basis of [1] the pleadings, [2] any stipulations made by and between the parties
and [3] such affidavits and attachments as may be filed by the parties in accordance with
[Rule 87(3)(a), regarding affidavits] or of Rule 88 [regarding evidence permissibly attached to
affidavits].” TEX. R. CIV. P. 87(3)(b). Rule 88 allows the consideration of “Deposition
transcripts, responses to requests for admission, answers to interrogatories and other discovery
products containing information relevant to a determination of proper venue . . . when they are
attached to . . . an affidavit of a party, witness or an attorney who has knowledge of such
discovery.” TEX. R. CIV. P. 88. In other words, the venue question is determined by the
pleadings, not by live testimony. Any testimony given in a hearing on a separate matter is not
admissible for purposes of venue.
17. Furthermore, Defendants could have taken Plaintiffs’ depositions and developed
the same facts in an admissible format. They did not.
18. Second, as a substantive matter, even if Plaintiffs committed or suborned
perjury—an allegation Plaintiffs vehemently deny—that by itself would not be sufficient
grounds to transfer venue. The determination of venue is not punitive; it is focused entirely on
whether the properly pled and proved facts support venue in the county of suit.
19. Accordingly, Defendants’ motion should be denied, and Plaintiffs should be
awarded their costs incurred in opposing the motion because Defendants’ motion has no basis in
fact.
II. The Court should overrule Defendants’ objections and order the production of
responsive and discoverable materials.
20. On April 14, 2014, Plaintiffs served discovery requests on Defendants. See
Plaintiffs’ Exhibit 1, Plaintiffs’ Discovery Requests. On May 14, 2014, Defendants served
6
Exhibit R App. 167
responses to Plaintiffs’ discovery requests.2 See Plaintiffs’ Exhibit 2, Defendants’ Discovery
Responses. Defendants produced 184 pages of documents, but withheld hundreds of pages more
that are responsive and discoverable.
A. There is no “accountant-client privilege” in Texas.
21. Defendants withheld various categories of accounting records for Defendant 8650
Frisco, LLC, on the basis of an asserted privilege that does not exist in Texas. See Plaintiffs’
Exhibit 2, Defendants’ Discovery Responses, Requests for Production Nos. 1, 2, 4, and 8.
Plaintiffs incorporate the arguments set forth in their Emergency Motion to Compel and for
Sanctions, filed April 24, 2014, and the arguments made at the hearing on May 12, 2014, as if set
forth verbatim herein. The bottom line is that Texas law does not recognize an accountant-client
privilege and Defendants cannot withhold responsive and discoverable documents on that basis.
22. The Court has already ruled on this point when it compelled third party
production from Defendants ex-accountant. Defendants not only asserted a baseless objection,
but they withheld production of documents based on an objection the Court has already
overruled. The result is yet another motion to compel.
B. There is no “tax return privilege.”
23. Defendants withheld the tax records, including K-1 forms, relating to 8650 Frisco,
LLC, on the basis of a law that renders information confidential but not privileged. See
Plaintiffs’ Exhibit 2, Request for Production No. 7. Judge Rosenthal addressed exactly this
situation in Alpert v. Riley, No. CIV.A. H-04-CV-3774, 2009 WL 1226767 (S.D. Tex. Apr. 30,
2009). Like the Alpert defendants, these Defendants do not specify on which part of Section
6103 they rely. Regardless,
2
It may be interesting to note that some of Defendants’ answers to interrogatories and
admissions appear to contradict the documents produced by Defendants. Nevertheless, Plaintiffs
will refrain from making accusations of perjury until the evidence is more fully developed.
7
Exhibit R App. 168
Section 6103 does not impose secrecy obligations on the
defendants and does not give them a blanket privilege or protection
against discovery. Section 6103 applies only to government
officers and employees. Section 6103 cannot be used invoked to
“block access, through pretrial discovery or otherwise, to copies
of tax returns in the possession of litigants.”
Alpert v. Riley, No. CIV.A. H-04-CV-3774, 2009 WL 1226767 (S.D. Tex. Apr. 30, 2009)
(emphasis added), citing Commodity Futures Trading Comm'n v. Collins, 997 F.2d 1230, 1233
(7th Cir.1993). The Supreme Court of the United States has specifically held that “although tax
returns . . . are made confidential within the government bureau, copies in the hands of the
taxpayer are held subject to discovery.” St. Regis Paper Co. v. United States, 368 U.S. 208,
218–19 (1961) (emphasis added; internal citations omitted). In short, there is no accountant-
client privilege, and there is no tax return privilege. The Court should overrule Defendants’
spurious objections and order Defendants to produce their tax returns.
C. Defendants’ bank records are discoverable.
24. Defendants withheld the bank statements of 8650 Frisco, LLC, on the basis that it
“is an improper method to request records of a financial institution” under TEX. FIN. CODE
§ 59.006. See Plaintiffs’ Exhibit 2, Request for Production No. 5. Plaintiffs note, however, that
section 59.006 governs the production of documents by the financial institution, not the
production of documents in the possession, custody, or control of a party. Subsection (b)
provides that “A financial institution shall produce . . . .” Subsection (e) governs a party-
customer’s obligation regarding “the financial institution’s compliance with a record request.”
Subsection (f) provides time lines before which “[a] financial institution may not be required to
produce a record.” TEX. FIN. CODE § 59.006(b), (e), (f) (emphasis added). Section 59.006 simply
does not apply to a request for documents directly from the customer. Accordingly, the Court
should overrule Defendants’ objection and order Defendants to produce the bank statements of
Defendant 8650 Frisco, LLC.
8
Exhibit R App. 169
D. Defendants’ financial records are discoverable.
25. Defendants claimed to produce “all financial records of 8650 Frisco, LLC,” see
Plaintiffs’ Exhibit 2, Defendants’ Discovery Responses at 14 but in fact produced only those
documents Plaintiffs submitted as exhibits at the hearing on April 7, 2014. The Court should
overrule Defendants’ objections and order Defendants to produce the financial records of
Defendant 8650 Frisco, LLC.
III. The Court should appoint a discovery master.
26. During the progress of this lawsuit, Defendants have consistently engaged in
dilatory tactics with no purpose other than delay and increasing cost. Defendants have lodged
spurious objections about, for example, signatures, distances, and privileges which do not exist
under Texas law. Defendants have made unsubstantiated allegations about the unauthorized
practice of law and subornation of perjury. And Defendants have refused to appear for deposition
despite the Court’s order that they do so. In short, this is an exceptional case in which good cause
exists for the appointment of a discovery master under Rule 171, TEX. R. CIV. P.
27. Accordingly, Plaintiffs respectfully request that the Court appoint a master in
chancery under Rule 171 to control the discovery phase of this case by hearing and ruling upon
objections lodged with respect to written discovery; by participating in depositions for the
purpose of hearing and ruling upon any objections which may be lodged; and by hearing and
ruling upon any discovery motions filed by either party, including the imposition of sanctions, if
appropriate, under Rule 215, TEX. R. CIV. P.
IV. Plaintiffs are entitled to recover their costs incurred in filing this response.
28. As discussed above, Defendants’ motion to stay is groundless because it has no
basis in law or fact and is not warranted by good faith argument for the extension, modification,
or reversal of existing law. See Tex. R. Civ. P. 13. Simply put, Defendants filed their motion to
stay merely to postpone their depositions and to increase the cost of litigation. As a legal matter,
9
Exhibit R App. 170
the relief they are requesting is expressly prohibited. As a factual matter, the relief they claim to
be seeking does not line up with their actions thus far. If Defendants truly sought to reduce their
costs, they would have set a hearing on their motion to transfer venue long ago.
29. Similarly, as discussed above, Defendants’ objections to Plaintiffs’ discovery
requests have no basis in law or fact and have been lodged solely to delay and increase the costs
of this litigation.
30. Accordingly, Defendants should be ordered to personally appear before this court
and show cause why they should not be sanctioned under Rules 13 and 215 for their conduct in
filing groundless and bad faith motions and discovery responses. At this stage, Plaintiffs merely
request that they be awarded their reasonable expenses, including attorneys’ fees, caused by
Defendants’ groundless, bad faith, and harassing conduct.
CONCLUSION
Plaintiffs are attempting to fairly, efficiently, and expeditiously prosecute their claims,
but Defendants have consistently blocked Plaintiffs’ efforts by lodging groundless and bad faith
objections and filing groundless and bad faith motions. The Court should deny Defendants’
motion to stay, compel Defendants to produce all their responsive documents, and compel
Defendants to appear for deposition in Harris County, Texas. Further, the Court should order
Defendants to personally appear before the Court to show cause why they should not be
sanctioned under Rules 13 and 215, TEX. R. CIV. P. Finally, the Court should appoint a master in
chancery to resolve any future discovery disputes between the parties.
Furthermore, Defendants’ counsel have engaged in a course of conduct indicating an
unwillingness to abide by the rules of civil procedure, the rules of professional conduct, and the
Texas Lawyers Creed. Plaintiffs respectfully request that the Court consider imposing such
sanctions as may be appropriate to encourage Defendants and their counsel to do so, including
but not limited to a finding that Defendants have consented to venue in Harris County, Texas.
10
Exhibit R App. 171
Plaintiffs pray for such other and further relief to which they may be entitled.
Respectfully submitted,
STEPHENS & DOMNITZ, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
SBN: 19158300
P.O. Box 79734
Houston, Texas 77279-9734
Tel: 281-394-3287
Fax: 832-476-5460
kstephens@stephensdomnitz.com
HAWASH MEADE GASTON NEESE & CICACK LLP
/s/ Andrew K. Meade
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
2118 Smith Street
Houston, Texas 77002
713-658-9006 (Direct & Fax)
ameade@hmgllp.com
ATTORNEYS FOR PLAINTIFFS
LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
LOS CUCOS MEXICAN CAFÉ IV, Inc.,
MANUEL CABRERA, and
SERGIO CABRERA
11
Exhibit R App. 172
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on June 11, 2014.
Via Fax: 972-267-5072 and e-file
Nicholas Mosser
MOSSER LAW PLLC
17110 Dallas Pkwy, Suite 290
Dallas, TX 75248
/s/ Jeremy M. Masten
Jeremy M. Masten
12
Exhibit R App. 173
CAUSE NO. 2014-01089
LOS CUCOS MEXICAN CAFE § IN THE DISTRICT COURT OF
VIII, INC.; LOS CUCOS MEXICAN §
CAFE IV, INC.; MANUEL §
CABRERA; and SERGIO §
CABRERA, §
Plaintiffs §
§
v. §
§ HARRIS COUNTY, TEXAS
8650 FRISCO, LLC D/B/A ESTILO §
GAUCHO BRAZILIAN §
STEAKHOUSE; MANDONA, LLC; §
GALOVELHO, LLC; BAHTCHE, §
LLC; CLAUDIO NUNES; and §
DAVID JEIEL RODRIGUES, §
Defendants § 133rd JUDICIAL DISTRICT
PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS TO 8650 FRISCO, LLC
D/B/A ESTILO GAUCHO BRAZILIAN STEAKHOUSE
TO: Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse, by and
through its counsel of record, Nicholas D. Mosser and Benjamin Casey, Mosser
Law PLLC, 17110 Dallas Parkway, Suite 290, Dallas, Texas 75248.
Pursuant to the Texas Rules of Civil Procedure, Plaintiffs Los Cucos Mexican
Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera
(“Plaintiffs”) serve their First Set of Requests for Admissions, Requests for Production
and First Set of Interrogatories on Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho
Brazilian Steakhouse (“Defendant”) as authorized by Rules 196 and 198, TEX. R. CIV. P.
Defendant must specifically admit or deny and produce all requested documents in its
possession, custody, or control (as they are kept in the ordinary course of business or
organized and labeled to correspond with categories in each request) for inspection and
Exhibit R EXHIBIT 1 Ohio App. 174
copying, and not more than 30 days after service, at the office of HAWASH MEADE
GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.
Respectfully submitted,
STEPHENS & DOMNITZ, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
SBN: 19158300
P.O. Box 79734
Houston, Texas 77279-9734
Tel: 281-394-3287
Fax: 832-476-5460
kstephens@stephensdomnitz.com
HAWASH MEADE GASTON NEESE
& CICACK LLP
/s/ Andrew K. Meade
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
2118 Smith Street
Houston, Texas 77002
713-658-9006 (Direct & Fax)
ameade@hmgllp.com
jmasten@hmgllp.com
ATTORNEYS FOR PLAINTIFFS
LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
LOS CUCOS MEXICAN CAFÉ IV, Inc.,
MANUEL CABRERA, and
SERGIO CABRERA
2
Exhibit R App. 175
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been served to the
following pursuant to the Texas Rules of Civil Procedure on April 14, 2014.
Via Fax: 972-267-5072 and
email: courtdocuments@mosserlaw.com
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pkwy, Suite 290
Dallas, TX 75248
/s/ Andrew K. Meade
Andrew K. Meade
3
Exhibit R App. 176
DEFINITIONS AND INSTRUCTIONS
1. As used throughout this request (including these definitions and
instructions), the term “documents” means each and every document (as defined in
Rule 34, FED. R. CIV. P.), all electronically stored information, and each and every
tangible thing, including but not limited to both electronic and hard copy documents, in
the possession, custody, or control of Plaintiff, whether a copy, draft, or original,
wherever located, with all exhibits, attachments, and schedules, including but not
limited to the following: correspondence and drafts of correspondence; notes or
summaries of conversations; income tax returns, forms, schedules, or worksheets; inter-
and intra-office memoranda; reports; comments; worksheets; plans; minutes; notes;
notices or notifications; findings; conclusions; memoranda; contracts or agreements of
any kind; brochures, circulars, bulletins, advertisements, sales catalogs or literature;
packages, packaging, and package inserts; notes, records, summaries, or other reports of
conferences, meetings, visits, surveys, discussions, inspections, examinations, reviews
or telephone conversations; purchase orders, quotations, estimates, invoices, bids,
receipts, or acknowledgements, including the reverse sides of all such documents with
printing, typing or writing on the reverse sides; bills of lading and other shipping
documents; credit agreements or credit memoranda; contract or lease offers or
proposals; executed or proposed agreements, contracts, franchise agreements, licenses,
leases, insurance policies and riders, or options; proposals; diaries; desk calendars,
appointment books, or telephone call books; property valuations or appraisals, and
their updates; affidavits, depositions, transcripts and statements, or summaries or
excerpts thereof; stenographic notes; books and records; financial data; stock certificates
and evidence of stock ownership; newspaper or magazine articles; pamphlets, books,
texts, notebooks, magazines, manuals, journals, and publications; notepads, tabulations,
data compilations, calculations, or computations; schedules; drafts; charts and maps;
forecasts and projections; drawings, designs, plans, specifications, graphs, blueprints,
sketches, or diagrams; orders; pleadings and court filings; checks and check stubs (front
and back); records or transcripts of statements, depositions, conversations, meetings,
discussions, conferences or interviews, whether in person or by telephone or by other
means; workpapers; printouts or other stored information from computers or other
information retention or processing systems; e-mail or electronic mail or
communications, in whatever form; instant messages in whatever form; photographic
matter or sound reproduction matter however produced, reproduced or stored;
government reports, regulations, filings or orders; any other written, printed, typed,
taped, recorded, or graphic matters; any exhibits, attachments, or schedules to or with
the foregoing; any drafts of the foregoing; and any copies or duplicates of the foregoing
that are different because of marginal or handwritten notations, or because of any
markings thereon or alterations thereof.
2. All electronically stored information should be produced as an electronic
copy, preserving all metadata.
4
Exhibit R App. 177
3. Throughout this request (including these definitions and instructions), the
term “communications” means any and all of the following: writings, oral
communications, electronic communications (including emails, text messages, and
instant messages), wire communications, conversations by telephone, meetings, and
any contact, oral or written, formal or informal, at any time or place, and under any
circumstance whatsoever, in which information of any nature was transmitted or
exchanged in any form or by any medium.
4. Throughout this request (including these definitions and instructions), the
phrases “relating to,” “relates to,” “related to,” "regarding," and “in relation to” mean
constituting or evidencing, and directly or indirectly mentioning, describing, referring
to, pertaining to, being connected with, reflecting upon, or concerning the stated subject
matter.
5. Throughout this request (including these definitions and instructions), the
words “any” and “all” shall be considered to include “each” and “each and every.”
6. Throughout this request (including these definitions and instructions), the
singular of any word shall include the plural, and the plural of any word shall include
the singular. The masculine form shall include the feminine and neutral forms. The
terms “and” and “or” shall mean “and/or” inclusively.
7. Throughout this request (including these definitions and instructions), the
terms “you” and “your” refer to the party responding to the request, as well as his, her,
or its present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on behalf of or
under the control of the responding party.
8. Throughout this request (including these definitions and instructions),
“Defendant” and “Frisco” mean 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian
Steakhouse, a named defendant in this matter. The term “Defendant” or “Frisco” also
includes Defendant’s present and former agents, employees, counselors, consultants,
representatives, attorneys, and any other person or entity acting or purporting to act on
its behalf or under its control.
9. Throughout this request (including these definitions and instructions), the
term “Plaintiff” or “Plaintiffs” means any named Plaintiff in this matter, including their
present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on its behalf or
under their or its control.
10. Throughout this request (including these definitions and instructions),
“Los Cucos” means Los Cucos Mexican Café VIII, Inc. and Los Cucos Mexican Café IV,
5
Exhibit R App. 178
Inc., named defendants in this matter and includes any present and former agents,
employees, counselors, consultants, affiliates, subsidiaries, representatives, attorneys,
and/or any other person or entity acting or purporting to act on the behalf or under the
control of Los Cucos.
11. If you contend that any document requested here need not be produced
under a privilege or other protection against disclosure, provide an itemized log of the
document(s) being withheld from production. In the log, specify the date of each such
document, its author(s), all recipient(s), and any person(s) copied on the document, the
paragraph of this request to which the document responds, and a brief description of
the document’s contents that supplies enough detail to assess the applicability of the
privilege or protection being claimed. In addition, please specify the privilege or
protection upon which you rely as their basis for withholding the document(s) from
production.
12. If you intend to produce any electronic document or information in
response to this request, please contact counsel for Los Cucos to discuss the form in
which such electronic document or information will be produced.
13. If you have any questions about this request, please contact counsel for
Los Cucos promptly for clarification.
14. Unless otherwise stated, the time period covered by this request is January
1, 2010 to the present.
15. You are reminded of your duty under Rule 193.5, Tex. R. Civ. P., to amend
or supplement any response that was incomplete or incorrect when made or that,
although correct and complete when made, is no longer complete and correct.
6
Exhibit R App. 179
REQUESTS FOR ADMISSIONS
Admit or deny the following:
Admission No. 1. 8650 Frisco, LLC received money from Los Cucos Mexican
Café VIII, LLC.
Admission No. 2. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as a loan.
Admission No. 3. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as an investment.
Admission No. 4. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe VIII, LLC.
Admission No. 5. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe VIII, LLC.
Admission No. 6. 8650 Frisco, LLC received money from Los Cucos Mexican
Cafe IV, LLC.
Admission No. 7. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe IV, LLC as a loan.
Admission No. 8. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VI, LLC as an investment.
Admission No. 9. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe IV, LLC.
Admission No. 10. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe IV, LLC.
Admission No. 11. 8650 Frisco, LLC received money from Manuel Cabrera.
Admission No. 12. 8650 Frisco, LLC intended to treat the money it received
from Manuel Cabrera as a loan.
Admission No. 13. Admit that 8650 Frisco, LLC intended to treat the money it
received from Manuel Cabrera as an investment.
Admission No. 14. 8650 Frisco, LLC intended to repay the money it received
from Manuel Cabrera.
7
Exhibit R App. 180
Admission No. 15. 8650 Frisco, LLC did not intend to repay the money it
received from Manuel Cabrera.
Admission No. 16. 8650 Frisco, LLC received money from Sergio Cabrera.
Admission No. 17. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as a loan.
Admission No. 18. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as an investment.
Admission No. 19. 8650 Frisco, LLC intended to repay the money it received
from Sergio Cabrera.
Admission No. 20. 8650 Frisco, LLC did not intend to repay the money it
received from Sergio Cabrera.
Admission No. 21. 8650 Frisco, LLC received equipment from Los Cucos
Mexican Cafe IV, LLC.
Admission No. 22. 8650 Frisco, LLC received furniture from Los Cucos Mexican
Cafe IV, LLC.
Admission No. 23. 8650 Frisco, LLC is currently using equipment it received
from Los Cucos Mexican Cafe IV, LLC.
Admission No. 24. 8650 Frisco, LLC is currently using furniture it received from
Los Cucos Mexican Cafe IV, LLC.
Admission No. 25. 8650 Frisco, LLC is currently using equipment paid for by
from Los Cucos Mexican Cafe IV, LLC.
Admission No. 26. 8650 Frisco, LLC is currently using furniture paid for by Los
Cucos Mexican Cafe IV, LLC.
Admission No. 27. 8650 Frisco, LLC did not pay Los Cucos Mexican Cafe IV,
LLC for any equipment or furniture.
Admission No. 28. Los Cucos Mexican Cafe IV, LLC did not gift furniture to
8650 Frisco, LLC.
8
Exhibit R App. 181
Admission No. 29. Los Cucos Mexican Cafe VIII, LLC did not gift money to
8650 Frisco, LLC.
Admission No. 30. Admit that Manuel Cabrera did not gift money to 8650
Frisco, LLC.
Admission No. 31. Sergio Cabrera did not gift money to 8650 Frisco, LLC.
Admission No. 32. 8650 Frisco, LLC is currently operating at a net profit.
Admission No. 33. 8650 Frisco, LLC is currently operating at a new loss.
Admission No. 34. 8650 Frisco, LLC is currently using the name Estilo Goucho
Brazilian Steakhouse.
Admission No. 35. 8650 Frisco, LLC is has been using the name Estilo Goucho
Brazilian Steakhouse since February, 2013.
Admission No. 36. 8650 Frisco, LLC has assigned, in writing, its rights to the
mark Estilo Gaucho Bazilian Steakhouse to Bahtche, LLC.
Admission No. 37. 8650 Frisco, LLC has not assigned, in writing, its rights to the
mark Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.
Admission No. 38. 8650 Frisco, LLC has received compensation from Bahtche,
LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.
Admission No. 39. 8650 Frisco, LLC has not received compensation from
Bahtche, LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.
Admission No. 40. Estilo Gaucho Brazilian Steakhouse is a trade name of 8650
Frisco, LLC.
Admission No. 41. 8650 Frisco, LLC does business as Estilo Gaucho Brazilian
Steakhouse.
9
Exhibit R App. 182
Requests for Production
Request No. 1. Produce all documents and records provided to or received from
8650 Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA,
Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650
Frisco, LLC.
Request No. 2. Produce all documents and records in the possession of 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.
Request No. 3. Produce all financial records of 8650 Frisco, LLC.
Request No. 4. Produce all accounting records of 8650 Frisco, LLC.
Request No. 5. Produce all bank statements of 8650 Frisco, LLC.
Request No. 6. Produce all point of sale data and reports related to 8650 Frisco,
LLC.
Request No. 7. Produce all tax records (including all 1099 forms, W-2 forms, and
K-1 forms) related to 8650 Frisco, LLC.
Request No. 8. Produce all communications and correspondence with 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.
Request No. 9. Produce all payroll records for 8650 Frisco, LLC.
Request No. 10. Produce all records of money received from any Plaintiff in this
lawsuit.
Request No. 11. Produce all records of money paid or distributed to any Plaintiff
in this lawsuit.
Request No. 12. Produce all correspondence and communications with each
Plaintiff in this lawsuit.
Request No. 13. Produce all agreements, including all drafts of agreements,
between the Parties, which relate in any way to 8650 Frisco, LLC.
10
Exhibit R App. 183
Request No. 14. Produce all leases and related documents (e.g., guarantees),
which relate to the premises currently occupied by 8650 Frisco, LLC.
Request No. 15. Produce all records of financial transactions between 8650
Frisco, LLC and Claudio Nunes.
Request No. 16. Produce all records of financial transactions between 8650
Frisco, LLC and David Jeiel Rodrigues.
Request No. 17. Produce all corporate records of 8650 Frisco, LLC.
Request No. 18. Produce quarterly and annual profit and loss statements for
8650 Frisco, LLC from its creation through the present (update quarterly through trial).
Request No. 19. Produce quarterly and annual balance sheet statements for 8650
Frisco, LLC from its creation through the present (update quarterly through trial).
Request No. 20. Produce all communications and correspondence related to any
of the Plaintiffs in this lawsuit.
Request No. 21. Produce all records of cash receipts and cash deposits for 8650
Frisco, LLC.
Request No. 22. Produce all records, including invoices, for all equipment and
furniture purchased for use by 8650 Frisco, LLC.
Request No. 23. Produce all documents which reflect or relate to the application
to the United States Patent and Trademark office for the mark Estilo GAucho Brazilian
Steakhouse.
Request No. 24. Produce the assignment of ownership rights for the mark Estilo
Gaucho Brazilian Steakhouse to Bahtche, LLC.
Request No. 25. Produce documents reflecting the exchange of compensation by
and between 8650 Frisco, LLC and Bahtche, LLC, related to the mark Estilo Gaucho
Brazilian Steakhouse.
11
Exhibit R App. 184
FIRST SET OF INTERROGATORIES
Interrogatory No. 1. Identify and explain in detail the terms upon which Los
Cucos Mexican Cafe VIII, LLC provided money to 8650 Frisco, LLC.
Interrogatory No. 2. If you contend that the money provided to 8650 Frisco, LLC
by Los Cucos Mexican Cafe VIII, LLC was a loan, describe in detail the basis of that
contention and terms of the loan.
Interrogatory No. 3. If you contend that they money provided to 8650 Frisco,
LLC by Los Cucos Mexican Cafe VIII, LLC was an investment, describe in detail the
basis of that contention and terms of the investment.
Interrogatory No. 4. Identify and describe in detail the equipment and
furnishings provided to 8650 Frisco, LLC by Los Cucos Mexican Cafe, IV.
Interrogatory No. 5. If you contend that the parties had an agreement as to 8650
Frisco, LLC’s use of the equipment and furniture provided to 8650 Frisco, LLC by Los
Cucos Mexican Cafe, IV, identify and describe in detail the basis of that contention and
terms of the agreement.
Interrogatory No. 6. Identify and describe in detail the source, date of purchase,
and cost of all equipment and furnishings used at 8650 Frisco, LLC.
Interrogatory No. 7. Detail the circumstances and terms under which the mark
Estilo Gaucho Brazilian Steakhouse was transferred to Bahtche, LLC.
12
Exhibit R App. 185
CAUSE NO. 2014-1 0896
LOS CUCOS MEXICAN CAFE § IN THE DISTRICT COURT OF
VIII, INC., LOS CUCOS §
MEXICAN CAFE IV, INC., §
MANUEL CABRERA, and §
SERGIO CABRERA §
PLAINTIFFS, §
§
v. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC d/b/a §
ESTILO GAUCHO BRAZILIAN §
STEAKHOUSE,MANDON~ §
LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO §
NUNES and DAVID JEIEL §
RODRIGUES §
DEFENDANTS. § 133rd JUDICIAL DISTRICT
DEFENDANT'S RESPONSE TO PLAINTIFF'S FIRST SET OF
INTERROGATORIES
To: Plaintiffs, Los Cucos Mexican Cafe VIII, Inc., Los Cucos Mexican
Cafe IV, Inc., Manuel Cabrera, and Sergio Cabrera, by and through their
attorney of record, Kelly Stephens, P.O. Box 79734, Houston, Texas
77279.
Defendant, 8650 Frisco LLC, serves these answers to Plaintiff's
interrogatories.
RESPONSES TO INTERROGATORIES
Interrogatory No. 1: Identify and explain in detail the terms upon which
Los Cucos Mexican Cafe VIII, LLC provided money to 8650 Frisco, LLC.
ANSWER: "Los Cucos Mexican Cafe VIII, LLC" provided no money to
8650 Frisco LLC.
Interrogatory No. 2: If you contend that the money provided to 8650
Frisco, LLC by Los Cucos Mexican Cafe VIII, LLC was a loan, describe in
Exhibit R EXHIBIT 2 Ohio App. 186
detail the basis of that contention and terms of the loan.
ANSWER: Not applicable.
Interrogatory No. 3: If you contend that they money provided to 8650
Frisco, LLC by Los Cucos Mexican Cafe VIII, LLC was an investment,
describe in detail the basis of that contention and terms of the investment.
ANSWER: Not applicable.
Interrogatory No. 4: Identify and describe in detail the equipment and
furnishings provided to 8650 Frisco, LLC by Los Cucos Mexican Cafe IV.
ANSWER: OBJECTION: Defendant 8650 Frisco LLC objects to this
request as it is vague and lacks specificity. Subject to this objection and
without waiving same, Defendant 8650 Frisco LLC responds as follows:
None.
Interrogatory No. 5: If you contend that the parties had an agreement as
to 8650 Frisco, LLC's use of the equipment and furniture provided to 8650
Frisco, LLC by Los Cucos Mexican Cafe, IV, describe in detail the basis
of that contention and terms of the agreement.
ANSWER: OBJECTION: Defendant 8650 Frisco LLC objects to this
request as it is vague and lacks specificity. Subject to this objection and
without waiving same, Defendant 8650 Frisco LLC responds as follows:
None.
Interrogatory No. 6: Identify and describe in detail the source, date of
purchase, and cost of all equipment and furnishings used at 8650 Frisco,
LLC.
ANSWER: OBJECTION: Defendant 8650 Frisco LLC objects to this
requests as it is overly broad, exceeds the scope of this litigation, unduly
burdensome, harassing, vague, and is not likely to lead to admissible
evidence. 8650 Frisco LLC utilizes hundreds if not thousands of different
objects which could be classified as either "equipment" or "furnishings" as
commonly defined by Webster's dictionary. Furthermore, Plaintiff does not
describe what cost method he wishes to utilize in the calculation of the
"cost" of the equipment or furnishings. Cost can be interpreted as
Exhibit R App. 187
replacement cost, initial purchase cost, or actual cash value. Defendant
further objects as, this request is an improper interrogatory and therefore
this is improper procedure. Defendant further objects as the costs
associated with analyzing every nut and bolt of the operation and preparing
a list of the source and cost would greatly exceed any benefit derived from
the creation of the list. These costs are not justified given the documents
produced by Plaintiffs at the Temporary Injunction hearing, and the
invoices testified to by Hal Holtman stating the exact cost of the
complained of equipment and the exact amount of the alleged investments.
Interrogatory No. 7: Detail the circumstances and terms under which the
mark Estilo Gaucho Brazilian Steakhouse was transferred to Bahtche, LLC.
ANSWER: OBJECTION: Defendant 8650 Frisco LLC objects to this
request as it is vague, overly broad, and will not lead to discovery of
admissible evidence. Subject to this objection and without waiving the
same, the events as described by Plaintiffs in Interrogatory Number 7 did
not occur.
Respectfully submitted, MOSSER LAW PLLC,
By· lsi .lames C Masser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
Benjamin Casey
Texas Bar No. 24087267
17110 Dallas Parkway Suite 290
Dallas, TX 75248
Tel. (972) 733-3223
Fax. (972) 267-5072
courtdocuments@mosserlaw.com
Lawyers for Defendants
Exhibit R App. 188
CERTIFICATE OF SERVICE
I certify that on May 14, 2014, a true and correct copy of this document was
served to the following pursuant to Texas Rules of Civil Procedure 21 &
21 (a).
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
lsi Nicholas D Mosser
By: Nicholas D. Mosser
Exhibit R App. 189
CAUSE NO. 2014-10896
§ IN THE DISTRICT COURT OF
~LOS CUCOS MEXICAN CAFE VJII, §
siNC., LOS CUCOS MEXICAN CAFE IV,
INC•• MANUEL CABRERA, and §
SERGIO CABRERA §
§
PLAINTIFFS, §
§
v. § HARRIS COUNTY, TEXAS
8650 FRISCO, LLC dlb/a ESTILO
GAUCHO BRAZILIAN STEAKHOUSE,
MANDONA, LLC, GALOVELHO, LLC,
BAHTCHE, UC, CLAUDIO NUNES
and DAVID JEIEL RODRIGUES
DEFENDANTS. § 133rd JUDICIAL DISTRICT
UNSWORN DECLARATION OF 8650 FRISCO. LLC
1. I am a member of Mandona, LLC, the manager of 8650 Frisco, LLC.
2. I have read 8650 Frisco, LLC'S Response to Plaintiffs First Set of
Interrogatories. The factual responses stated therein are true and correct and
within my personal knowledge.
3. My name is David Jeiel Rodrigues, member of Mandona, LLC. the manager of
8650 Frisco,LLC, my date ofbirth Is May 17, 1981 and my address is 8650
State Highway 121, Frisco. Texas 75034. I declare under penalty of perjury that
the foregoing is true and corTect.
Executed In Collin County. State of Texas, on May 14,2014.
``'
DaVid JeJel Ro~ ,
member of Mandona. LLC.
as manager of 8650 Frisco, LLC
Exhibit R App. 190
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFE § IN THE DISTRICT COURT OF
VIII, INC., LOS CUCOS MEXICAN §
CAFE IV, INC., MANUEL §
CABRERA, and SERGIO §
CABRERA §
PLAINTIFFS, §
§
v. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN §
STEAKHOUSE,MANDON~ §
LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO §
NUNES and DAVID JEIEL §
RODRIGUES §
DEFENDANTS. §
133rd JUDICIAL DISTRICT
DEFENDANT'S ANSWERS TO
PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS
To: Plaintiffs, Los Cucos Mexican Cafe VIII, Inc., Los Cucos Mexican Cafe IV,
Inc., Mnuel Cabrera, and Sergio Cabrera, by and through their attorney of
record, Kelly Stephens, P.O. Box 79734, Houston, Texas 77279.
Defendants, 8650 Frisco, LLC, serves these responses to Plaintiff's requests
for admissions.
RESPONSES TO ADMISSIONS
Admission No.1: 8650 Frisco, LLC received money from Los Cucos Mexican
Cafe VIII, LLC.
RESPONSE: DENY
Admission No.2: 8650 Frisco, LLC intended to treat the money it received
from Los Cucos Mexican Cage VIII, LLC as a loan.
RESPONSE: DENY
Exhibit R App. 191
Admission No. 3: 8650 Frisco, LLC intended to treat the money it received
from Los Cucos Mexican Cafe VIII, LLC as an investment.
RESPONSE: DENY
Admission No. 4: 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe VIII, LLC.
RESPONSE: DENY
Admission No. 5: 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe VIII, LLC.
RESPONSE: DENY
Admission No.6: 8650 Frisco, LLC received money from Los Cucos Mexican
Cafe IV, LLC.
RESPONSE: DENY
Admission No. 7: 8650 Frisco, LLC intended to treat the money it received
from Los Cucos Mexican Cafe IV, LLC as an investment.
RESPONSE: DENY
Admission No. 8: 8650 Frisco, LLC intended to treat the money it received
from Los Cucos Mexican Cafe VI, LLC as an investment.
RESPONSE: DENY
Admission No. 9: 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe IV, LLC.
RESPONSE: DENY
Admission No. 10: 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe IV, LLC.
RESPONSE: DENY
Exhibit R App. 192
Admission No. 11: 8650 Frisco, LLC received money from Manuel Cabrera.
RESPONSE: DENY
Admission No. 12: 8650 Frisco, LLC intended to treat the money it received
from Manuel Cabrera as a loan.
RESPONSE: DENY
Admission No. 13: 8650 Frisco, LLC intended to treat the money it received
from Manuel Cabrera as an investment.
RESPONSE: DENY
Admission No. 14: 8650 Frisco, LLC intended to repay the money it received
from Manuel Cabrera.
RESPONSE: DENY
Admission No. 15: 8650 Frisco, LLC did not intend to repay the money it
received from Manuel Cabrera.
RESPONSE: DENY
Admission No. 16: 8650 Frisco, LLC received money from Sergio Cabrera.
RESPONSE: DENY
Admission No. 17: 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as a loan.
RESPONSE: DENY
Admission No. 18: 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as an investment.
RESPONSE: DENY
Admission No. 19: 8650 Frisco, LLC intended to repay the money it received
from Sergio Cabrera.
Exhibit R App. 193
RESPONSE: DENY
Admission No. 20: 8650 Frisco, LLC did not intend to repay the money it
received from Sergio Cabrera.
RESPONSE: DENY
Admission No. 21: 8650 Frisco, LLC received equipment from Los Cucos
Mexican Cafe IV, LLC.
RESPONSE: DENY
Admission No. 22: 8650 Frisco, LLC received furniture from Los Cucos
Mexican Cafe IV, LLC.
RESPONSE: DENY
Admission No. 23: 8650 Frisco, LLC is currently using equipment it received
from Los Cucos Mexican Cafe IV, LLC.
RESPONSE: DENY
Admission No. 24: 8650 Frisco, LLC is currently using furniture it received
from Los Cucos Mexican Cafe IV, LLC.
RESPONSE: DENY
Admission No. 25: 8650 Frisco, LLC is currently using equipment paid for by
Los Cucos Mexican Cafe IV, LLC.
RESPONSE: DENY
Admission No. 26: 8650 Frisco, LLC is currently using furniture paid for by
Los Cucos Mexican Cafe IV, LLC.
RESPONSE: DENY
Admission No. 27: 8650 Frisco, LLC did not pay Los Cucos Mexican Cafe
IV, LLC for any equipment or furniture.
Exhibit R App. 194
RESPONSE: ADMIT
Admission No. 28: Los Cucos Mexican Cafe IV, LLC did not gift furniture to
8650, LLC.
RESPONSE: ADMIT
Admission No. 29: Los Cucos Mexican Cafe VIII, LLC did not gift money to
8650 Frisco, LLC.
RESPONSE: ADMIT
Admission No. 30: Admit that Manuel Cabrera did not gift money to 8650
Frisco, LLC.
RESPONSE: ADMIT
Admission No. 31: Sergio Cabrera did not gift money to 8650 Frisco, LLC.
RESPONSE: ADMIT
Admission No. 32: 8650 Frisco, LLC is currently operating at a net profit.
RESPONSE: ADMIT
Admission No. 33: 8650 Frisco, LLC is currently operating at a new loss.
RESPONSE: DENY
Admission No. 34: 8650 Frisco, LLC is currently using the name Estilo
Gaucho Brazilian Steakhouse.
RESPONSE: OBJECTION. Defendant objects to this request because it is
vague and ambiguous. Specifically, it is not clear what is meant by the phrase,
"using the name."
Admission No. 35: 8650 Frisco, LLC has been using the name Estilo Gaucho
Brazilian Steakhouse since February, 2013.
RESPONSE: OBJECTION. Defendant objects to this request because it is
Exhibit R App. 195
vague and ambiguous. Specifically, it is not clear what is meant by the phrase,
"using the name."
Admission No. 36: 8650 Frisco, LLC has assigned, in writing, its rights to the
mark Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.
RESPONSE: DENY
Admission No. 37: 8650 Frisco, LLC has not assigned, in writing, its rights
to the mark Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.
RESPONSE: ADMIT
Admission No. 38: 8650 Frisco, LLC has received compensation from
Bahtche, LLC for the ownership of the mark Estilo Gaucho Brazilian
Steakhouse.
RESPONSE: DENY
Admission No. 39: 8650 Frisco, LLC has not received compensation from
Bahtche, LLC for the ownership of the mark Estilo Gaucho Brazilian
Steakhouse.
RESPONSE: ADMIT
Admission No. 40: Estilo Gaucho Brazilian Steakhouse is a trade name of
8650 Frisco, LLC.
RESPONSE: ADMIT
Admission No. 41: 8650 Frisco, LLC does business as Estilo Gaucho
Brazilian Steakhouse.
RESPONSE: ADMIT
Respectfully submitted, MOSSER LAW PLLC,
By· lsi Nicholas D Mosser
James C. Mosser
Exhibit R App. 196
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
Benjamin Casey
Texas Bar No. 24087267
17110 Dallas Parkway Suite 290
Dallas, TX 75248
Tel. (972) 733-3223
Fax. (972) 267-5072
courtdocuments@mosserlaw.com
Lawyers for Defendants
CERTIFICATE OF SERVICE
I certify that on May 14, 2014, a true and correct copy of this document was
served to the following pursuant to Texas Rules of Civil Procedure 21 & 21 (a).
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
Nicholas D. Mosser
By: Nicholas D. Mosser
Exhibit R App. 197
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFE § IN THE DISTRICT COURT OF
VIII, INC., LOS CUCOS MEXICAN §
CAFE IV, INC., MANUEL §
CABRERA, and SERGIO §
CABRERA §
PLAINTIFFS, §
§
V. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN §
STEAKHOUSE,MANDON~ §
LLC,GALOVELHO,LLC, §
BAHTCHE, LLC, CLAUDIO §
NUNES and DAVID JEIEL §
RODRIGUES §
DEFENDANTS. § 133rd JUDICIAL DISTRICT
DEFENDANT 8650 FRISCO LLC'S RESPONSES TO
PLAINTIFF'S FIRST REQUEST FOR PRODUCTION
To: Plaintiffs, Los Cucos Mexican Cafe VIII, Inc., Los Cucos Mexican Cafe IV,
Inc., Manuel Cabrera, and Sergio Cabrera, by and through their attorney of
record, Kelly Stephens, P.O. Box 79734, Houston, Texas 77279.
Defendants, 8650 Frisco, LLC, serves these responses to Plaintiff's request
for production.
RESPONSES TO REQUESTS
Request No. 1: Produce all documents and records provided to or received
from 8650 Frisco, LLC's accountants (including, but not limited to Mike
Verucchi, CPA, Holtmann & Company, LLC, or Hal Holtman, CPA), which
relate in any way to 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request seeks
information that is privileged. See Tex. Occ. Code § 901.457(a); see also
O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
foregoing objection, and without waiving the same, documents responsive to
Exhibit R App. 198
this request are being produced.
Request No.2: Produce all documents and records in the possession of 8650
Frisco, LLC's accountants (including, but not limited to Mike Verucchi, CPA,
Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to
8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request seeks
information that is privileged. See Tex. Occ. Code § 901.457(a); see also
O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
foregoing objection, and without waiving the same, documents responsive to
this request are being produced.
Request No. 3: Produce all financial records of 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overly
broad and seeks information that is not relevant to this matter. Defendant
further objects as this request is not narrowly tailored to a specific time, scope
or subject matter. Subject to the foregoing objection, and without waiving the
same, relevant documents responsive to this request will we produced as
requested.
Request No.4: Produce all accounting records of 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request seeks
information that is privileged. See Tex. Occ. Code § 901.457(a); see also
O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
foregoing objection, and without waiving the same, documents responsive to
this request are being produced.
Request No. 5: Produce all bank statements of 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant objects to
Exhibit R App. 199
this request as it is an improper method to request records of a financial
institution. Tex. Fin. Code § 59.006.
Request No. 6: Produce all point of sale data and reports related to 8650
Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects as this information contains information related to customer's accounts
and disclosure would subject Defendant to liability from customers whose data
was released.
Request No.7: Produce all tax records (including all1 099 forms, W-2 forms,
and K-1 forms) related to 8650 Frisco, LLC.
RESPONSE: OBJECTION. Defendant objects to this request as it is
harassing, irrelevant, and confidential by statute. 26 USC §61 03.
Request No.8: Produce all communications and correspondence with 8650
Frisco, LLC's accountants (including, but not limited to Mike Verucchi, CPA,
Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to
8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request seeks
· information that is privileged. See Tex. Occ. Code § 901.457(a); see also
O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
foregoing objection, without waiving the same, documents responsive to this
request are being produced.
Request No. 9: Produce all payroll records for 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects to this request as it seeks confidential information related to third
parties and is only being requested for harassment purposes.
Request No. 10: Produce all records of money received from any Plaintiff in
Exhibit R App. 200
this lawsuit.
RESPONSE:
OBJECTION. Defendant objects on the grounds that documents sought relate
to information that is already available to Plaintiff and is in plaintiffs
possession, custody, and control.
Request No. 11: Produce all records of money paid or distributed to any
Plaintiff in this lawsuit.
RESPONSE:
None.
Request No. 12: Produce all correspondence and communications with each
Plaintiff in this lawsuit.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Further, the
documents requested can be easily obtained by Plaintiff as Plaintiff is aware
of all correspondence and communication with Defendant. Plaintiffs were
parties to any communication between Plaintiffs and Defendants. Subject to
the foregoing objection, and without waiving the same, relevant documents
responsive to this request will we produced as requested.
Request No. 13: Produce all agreements, including all drafts of agreements,
between the Parties, which relate in any way to 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects as this information is work product and privileged. Furthermore,
Defendant objects to this request as any alleged agreements are in the
possession of Plaintiffs and may easily be obtained by Plaintiffs through a
search of their own records. Subject to the foregoing objection, and without
waiving the same, relevant documents responsive to this request will we
produced as requested.
Request No. 14: Produce all leases and related documents (e.g.,
Exhibit R App. 201
guarantees), which relate to the premises currently occupied by 8650 Frisco,
LLC.
RESPONSE:
Subject to the foregoing objection, and without waiving the same, relevant
documents responsive to this request will we produced as requested.
Request No. 15: Produce all records of financial transactions between 8650
Frisco, LLC and Claudio Nunes.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects to this request as it is not narrowly tailored and fails to define the
request in terms of scope, subject matter, or time.
Request No. 16: Produce all records of financial transactions between 8650
Frisco, LLC and David Jeiel Rodrigues.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects to this request as it is not narrowly tailored and fails to define the
request in terms of scope, subject matter, or time.
Request No. 17: Produce all corporate records of 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects to this request as it is confidential. Subject to the foregoing objection,
and without waiving the same, relevant documents responsive to this request
will we produced as requested.
Request No. 18: Produce quarterly and annual profit and loss statements for
8650 Frisco, LLC from its creation through the present (update quarterly
through trial).
Exhibit R App. 202
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant objects to
this request as it exceeds duty imposed on Defendant under Tex. R. Civ. P.
196.1 & 192.3.
Request No.19: Produce quarterly and annual balance sheet statements for
8650 Frisco, LLC from its creation through the present (update quarterly
through trial).
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant objects to
this request as it exceeds duty imposed on Defendant under Tex. R. Civ. P.
196.1 & 192.3.
Request No. 20: Produce all communications and correspondence related to
any of the Plaintiffs in this lawsuit.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is duplicative
of request for production no. 12. Defendant further objects as this request is
vague, overly burdensome, lacks specificity, fails to limit the request based
upon time, scope, or subject matter. Defendant further objects as this request
will not result in discoverable information. Defendant further objects as this
request seeks to invade the attorney client privilege.
Request No. 21: Produce all records of cash receipts and cash deposits for
8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects as this request is overly burdensome, harassing and will not result in
production of discoverable information. Subject to the foregoing objection, and
without waiving the same, relevant documents responsive to this request will
we produced as requested.
Request No. 22: Produce all records, including invoices, for all equipment
and furniture purchased for use by 8650 Frisco, LLC.
Exhibit R App. 203
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects to this request as it is vague, lacks specificity, and is not narrowly
tailored by time, scope or subject matter. Defendant further objects to this
request as it is overly burdensome to require Defendant to scour its records
for every purchase of nuts, bolts, bottles, cans, and bottle openers that it may
have acquired during the operation of the restaurant. Subject to the foregoing
objection, and without waiving the same, relevant documents responsive to
this request will we produced as requested.
Request No. 23: Produce all documents which reflect or relate to the
application to the United States Patent and Trademark office for the mark
Estilo Gaucho Brazilian Steakhouse.
RESPONSE:
None.
Request No. 24: Produce the assignment of ownership rights for the mark
Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.
RESPONSE:
None.
Request No. 25: Produce all documents reflecting the exchange of
compensation by and between 8650 Frisco, LLC and Bahtche, LLC, related
to the mark Estilo Gaucho Brazilian Steakhouse.
RESPONSE:
None.
Respectfully submitted, MOSSER LAW PLLC,
By· lsi Nicholas D Masser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Exhibit R App. 204
Texas Bar No. 24075405
Benjamin Casey
Texas Bar No. 24087267
17110 Dallas Parkway Suite 290
Dallas, TX 75248
Tel. (972) 733-3223
Fax. (972) 267-5072
courtdocuments@mosserlaw.com
Lawyers for Defendants
CERTIFICATE OF SERVICE
I certify that on May 14, 2014, a true and correct copy of this document was
served to the following pursuant to Texas Rules of Civil Procedure 21 & 21 (a).
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
Is/ Nicholas D. Mosser
By: Nicholas D. Mosser
Exhibit R App. 205
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFÉ VIII, § IN THE DISTRICT COURT OF
INC., LOS CUCOS MEXICAN CAFÉ’ §
IV, INC., MANUEL CABRERA, and §
SERGIO CABRERA §
§
Plaintiffs, §
§
VS. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES §
and DAVID JEIEL RODRIGUES §
§
Defendants. § 133rd JUDICIAL DISTRICT
PLAINTIFFS’ NOTICE OF INTENT TO TAKE THE ORAL AND VIDEOTAPED DEPOSITION
OF DEFENDANT CLAUDIO NUNES
Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel
Cabrera and Sergio Cabrera will take the oral deposition of Claudio Nunes, on Monday,
June 9, 2014, at 9:00 a.m., at the law offices of HAWASH MEADE GASTON NEESE & CICACK LLP,
2118 Smith Street, Houston, Texas 77002.
The deposition will continue from day to day until completed.
The deposition will be recorded stenographically and on videotape. The stenographic
recording will be conducted by Gulfstream Legal Court Reporting.
EXHIBIT 3
Exhibit R App. 206
Respectfully submitted,
STEPHENS & DOMNITZ, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
SBN: 19158300
P.O. Box 79734
Houston, Texas 77279-9734
Tel: 281-394-3287
Fax: 832-476-5460
kstephens@stephensdomnitz.com
HAWASH MEADE GASTON NEESE &
CICACK LLP
/s/ Andrew K. Meade
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
2118 Smith Street
Houston, Texas 77002
713-658-9006 (Direct & Fax)
ameade@hmgllp.com
jmasten@hmgllp.com
ATTORNEYS FOR PLAINTIFFS
LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
LOS CUCOS MEXICAN CAFÉ IV, Inc.,
MANUEL CABRERA, and
SERGIO CABRERA
2
Exhibit R App. 207
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on May 12, 2014.
Via Fax: 972-267-5072 and
email: courtdocuments@mosserlaw.com
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pkwy, Suite 290
Dallas, TX 75248
/s/ Andrew K. Meade
Andrew K. Meade
3
Exhibit R App. 208
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFÉ VIII, § IN THE DISTRICT COURT OF
INC., LOS CUCOS MEXICAN CAFÉ’ §
IV, INC., MANUEL CABRERA, and §
SERGIO CABRERA §
§
Plaintiffs, §
§
VS. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES §
and DAVID JEIEL RODRIGUES §
§
Defendants. § 133rd JUDICIAL DISTRICT
PLAINTIFFS’ NOTICE OF INTENT TO TAKE THE ORAL AND VIDEOTAPED DEPOSITION
OF DEFENDANT GALOVELHO, LLC
Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel
Cabrera and Sergio Cabrera will take the oral deposition of the corporate representative of
Galovelho, LLC, on Monday, June 9, 2014, at 2:30 p.m., at the law offices of HAWASH MEADE
GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.
Examination will be taken on matters related to
1. Venue facts, including but not limited to the location of events and
omissions giving rise to this lawsuit, the location of contact and
negotiations between the parties, and the residences and principal offices
of various defendants;
2. The business operations of the defendant entities;
3. The income (net and gross) of the business defendants;
4. The distributions of income and profits from the business defendants;
Exhibit R App. 209
5. The assets and liabilities of the business defendants, including the
acquisition of each entities' assets;
6. Funding and financing of the defendant entities;
7. The terms upon which the defendants accepted funds from the plaintiffs;
8. The terms upon which the defendants accepted furniture and equipment
from the plaintiffs;
9. The agreements and business arrangements of the plaintiffs;
10. The trade mark of Estilo Gaucho Brazilian Restaurant, including its
creation and ownership;
11. The ownership of 8650 Frisco, LLC;
12. The management of 8650 Frisco, LLC;
13. The corporate governance of the defendant entities, including the roles and
roles and responsibilities of officers and managers, company agreements
and bylaws, other governing documents, meetings and minutes of
meetings;
14. The financial affairs of the business entities, including but not limited to
profits and losses, inventories, equipment, balance sheets, and cash flow;
and
15. The lease for the real property occupied by 8650 Frisco, LLC, including
the negotiations and execution of the lease, the plaintiffs' personal
guaranty of the lease, and the terms of the lease and guaranty.
The deposition will continue from day to day until completed.
The deposition will be recorded stenographically and on videotape. The stenographic
recording will be conducted by Gulfstream Legal Court Reporting.
2
Exhibit R App. 210
Respectfully submitted,
STEPHENS & DOMNITZ, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
SBN: 19158300
P.O. Box 79734
Houston, Texas 77279-9734
Tel: 281-394-3287
Fax: 832-476-5460
kstephens@stephensdomnitz.com
HAWASH MEADE GASTON NEESE &
CICACK LLP
/s/ Andrew K. Meade
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
2118 Smith Street
Houston, Texas 77002
713-658-9006 (Direct & Fax)
ameade@hmgllp.com
jmasten@hmgllp.com
ATTORNEYS FOR PLAINTIFFS
LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
LOS CUCOS MEXICAN CAFÉ IV, Inc.,
MANUEL CABRERA, and
SERGIO CABRERA
3
Exhibit R App. 211
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on May 22, 2014.
Via Fax: 972-267-5072 and
email: courtdocuments@mosserlaw.com
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pkwy, Suite 290
Dallas, TX 75248
/s/ Andrew K. Meade
Andrew K. Meade
4
Exhibit R App. 212
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFÉ VIII, § IN THE DISTRICT COURT OF
INC., LOS CUCOS MEXICAN CAFÉ’ §
IV, INC., MANUEL CABRERA, and §
SERGIO CABRERA §
§
Plaintiffs, §
§
VS. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES §
and DAVID JEIEL RODRIGUES §
§
Defendants. § 133rd JUDICIAL DISTRICT
PLAINTIFFS’ NOTICE OF INTENT TO TAKE THE ORAL AND VIDEOTAPED DEPOSITION
OF DEFENDANT MANDONA, LLC
Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel
Cabrera and Sergio Cabrera will take the oral deposition of the corporate representative of
Mandona, LLC, on Monday, June 9, 2014, at 2:30 p.m., at the law offices of HAWASH MEADE
GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.
Examination will be taken on matters related to
1. Venue facts, including but not limited to the location of events and
omissions giving rise to this lawsuit, the location of contact and
negotiations between the parties, and the residences and principal offices
of various defendants;
2. The business operations of the defendant entities;
3. The income (net and gross) of the business defendants;
4. The distributions of income and profits from the business defendants;
Exhibit R App. 213
5. The assets and liabilities of the business defendants, including the
acquisition of each entities' assets;
6. Funding and financing of the defendant entities;
7. The terms upon which the defendants accepted funds from the plaintiffs;
8. The terms upon which the defendants accepted furniture and equipment
from the plaintiffs;
9. The agreements and business arrangements of the plaintiffs;
10. The trade mark of Estilo Gaucho Brazilian Restaurant, including its
creation and ownership;
11. The ownership of 8650 Frisco, LLC;
12. The management of 8650 Frisco, LLC;
13. The corporate governance of the defendant entities, including the roles and
roles and responsibilities of officers and managers, company agreements
and bylaws, other governing documents, meetings and minutes of
meetings;
14. The financial affairs of the business entities, including but not limited to
profits and losses, inventories, equipment, balance sheets, and cash flow;
and
15. The lease for the real property occupied by 8650 Frisco, LLC, including
the negotiations and execution of the lease, the plaintiffs' personal
guaranty of the lease, and the terms of the lease and guaranty.
The deposition will continue from day to day until completed.
The deposition will be recorded stenographically and on videotape. The stenographic
recording will be conducted by Gulfstream Legal Court Reporting.
2
Exhibit R App. 214
Respectfully submitted,
STEPHENS & DOMNITZ, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
SBN: 19158300
P.O. Box 79734
Houston, Texas 77279-9734
Tel: 281-394-3287
Fax: 832-476-5460
kstephens@stephensdomnitz.com
HAWASH MEADE GASTON NEESE &
CICACK LLP
/s/ Andrew K. Meade
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
2118 Smith Street
Houston, Texas 77002
713-658-9006 (Direct & Fax)
ameade@hmgllp.com
jmasten@hmgllp.com
ATTORNEYS FOR PLAINTIFFS
LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
LOS CUCOS MEXICAN CAFÉ IV, Inc.,
MANUEL CABRERA, and
SERGIO CABRERA
3
Exhibit R App. 215
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on May 22, 2014.
Via Fax: 972-267-5072 and
email: courtdocuments@mosserlaw.com
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pkwy, Suite 290
Dallas, TX 75248
/s/ Andrew K. Meade
Andrew K. Meade
4
Exhibit R App. 216
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFÉ VIII, § IN THE DISTRICT COURT OF
INC., LOS CUCOS MEXICAN CAFÉ’ §
IV, INC., MANUEL CABRERA, and §
SERGIO CABRERA §
§
Plaintiffs, §
§
VS. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES §
and DAVID JEIEL RODRIGUES §
§
Defendants. § 133rd JUDICIAL DISTRICT
PLAINTIFFS’ NOTICE OF INTENT TO TAKE THE ORAL AND VIDEOTAPED DEPOSITION
OF DEFENDANT DAVID JEIEL RODRIGUES
Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel
Cabrera and Sergio Cabrera will take the oral deposition of David Jeiel Rodrigues, on Tuesday,
June 10, 2014, at 9:00 a.m., at the law offices of HAWASH MEADE GASTON NEESE & CICACK
LLP, 2118 Smith Street, Houston, Texas 77002.
The deposition will continue from day to day until completed.
The deposition will be recorded stenographically and on videotape. The stenographic
recording will be conducted by Gulfstream Legal Court Reporting.
Exhibit R App. 217
Respectfully submitted,
STEPHENS & DOMNITZ, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
SBN: 19158300
P.O. Box 79734
Houston, Texas 77279-9734
Tel: 281-394-3287
Fax: 832-476-5460
kstephens@stephensdomnitz.com
HAWASH MEADE GASTON NEESE &
CICACK LLP
/s/ Andrew K. Meade
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
2118 Smith Street
Houston, Texas 77002
713-658-9006 (Direct & Fax)
ameade@hmgllp.com
jmasten@hmgllp.com
ATTORNEYS FOR PLAINTIFFS
LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
LOS CUCOS MEXICAN CAFÉ IV, Inc.,
MANUEL CABRERA, and
SERGIO CABRERA
2
Exhibit R App. 218
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on May 12, 2014.
Via Fax: 972-267-5072 and
email: courtdocuments@mosserlaw.com
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pkwy, Suite 290
Dallas, TX 75248
/s/ Andrew K. Meade
Andrew K. Meade
3
Exhibit R App. 219
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFÉ VIII, § IN THE DISTRICT COURT OF
INC., LOS CUCOS MEXICAN CAFÉ’ §
IV, INC., MANUEL CABRERA, and §
SERGIO CABRERA §
§
Plaintiffs, §
§
VS. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES §
and DAVID JEIEL RODRIGUES §
§
Defendants. § 133rd JUDICIAL DISTRICT
PLAINTIFFS’ NOTICE OF INTENT TO TAKE THE ORAL AND VIDEOTAPED DEPOSITION
OF DEFENDANT BAHTCHE, LLC
Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel
Cabrera and Sergio Cabrera will take the oral deposition of the corporate representative of
Defendant Bahtche, LLC, on Tuesday, June 10, 2014, at 2:30 p.m., at the law offices of
HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.
Examination will be taken on matters related to
1. Venue facts, including but not limited to the location of events and
omissions giving rise to this lawsuit, the location of contact and
negotiations between the parties, and the residences and principal offices
of various defendants;
2. The business operations of the defendant entities;
3. The income (net and gross) of the business defendants;
4. The distributions of income and profits from the business defendants;
Exhibit R App. 220
5. The assets and liabilities of the business defendants, including the
acquisition of each entities' assets;
6. Funding and financing of the defendant entities;
7. The terms upon which the defendants accepted funds from the plaintiffs;
8. The terms upon which the defendants accepted furniture and equipment
from the plaintiffs;
9. The agreements and business arrangements of the plaintiffs;
10. The trade mark of Estilo Gaucho Brazilian Restaurant, including its
creation and ownership;
11. The ownership of 8650 Frisco, LLC;
12. The management of 8650 Frisco, LLC;
13. The corporate governance of the defendant entities, including the roles and
roles and responsibilities of officers and managers, company agreements
and bylaws, other governing documents, meetings and minutes of
meetings;
14. The financial affairs of the business entities, including but not limited to
profits and losses, inventories, equipment, balance sheets, and cash flow;
and
15. The lease for the real property occupied by 8650 Frisco, LLC, including
the negotiations and execution of the lease, the plaintiffs' personal
guaranty of the lease, and the terms of the lease and guaranty.
The deposition will continue from day to day until completed.
The deposition will be recorded stenographically and on videotape. The stenographic
recording will be conducted by Gulfstream Legal Court Reporting.
2
Exhibit R App. 221
Respectfully submitted,
STEPHENS & DOMNITZ, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
SBN: 19158300
P.O. Box 79734
Houston, Texas 77279-9734
Tel: 281-394-3287
Fax: 832-476-5460
kstephens@stephensdomnitz.com
HAWASH MEADE GASTON NEESE &
CICACK LLP
/s/ Andrew K. Meade
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
2118 Smith Street
Houston, Texas 77002
713-658-9006 (Direct & Fax)
ameade@hmgllp.com
jmasten@hmgllp.com
ATTORNEYS FOR PLAINTIFFS
LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
LOS CUCOS MEXICAN CAFÉ IV, Inc.,
MANUEL CABRERA, and
SERGIO CABRERA
3
Exhibit R App. 222
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on May 22, 2014.
Via Fax: 972-267-5072 and
email: courtdocuments@mosserlaw.com
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pkwy, Suite 290
Dallas, TX 75248
/s/ Andrew K. Meade
Andrew K. Meade
4
Exhibit R App. 223
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFÉ VIII, § IN THE DISTRICT COURT OF
INC., LOS CUCOS MEXICAN CAFÉ’ §
IV, INC., MANUEL CABRERA, and §
SERGIO CABRERA §
§
Plaintiffs, §
§
VS. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES §
and DAVID JEIEL RODRIGUES §
§
Defendants. § 133rd JUDICIAL DISTRICT
PLAINTIFFS’ NOTICE OF INTENT TO TAKE THE ORAL AND VIDEOTAPED DEPOSITION
OF DEFENDANT 8650 FRISCO, LLC D/B/A ESTILO GAUCHO BRAZILIAN STEAKHOUSE
Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel
Cabrera and Sergio Cabrera will take the oral deposition of the corporate representative of
Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse, on Tuesday,
June 10, 2014, at 2:30 p.m., at the law offices of HAWASH MEADE GASTON NEESE & CICACK
LLP, 2118 Smith Street, Houston, Texas 77002.
Examination will be taken on matters related to
1. Venue facts, including but not limited to the location of events and
omissions giving rise to this lawsuit, the location of contact and
negotiations between the parties, and the residences and principal offices
of various defendants;
2. The business operations of the defendant entities;
3. The income (net and gross) of the business defendants;
4. The distributions of income and profits from the business defendants;
Exhibit R App. 224
5. The assets and liabilities of the business defendants, including the
acquisition of each entities' assets;
6. Funding and financing of the defendant entities;
7. The terms upon which the defendants accepted funds from the plaintiffs;
8. The terms upon which the defendants accepted furniture and equipment
from the plaintiffs;
9. The agreements and business arrangements of the plaintiffs;
10. The trade mark of Estilo Gaucho Brazilian Restaurant, including its
creation and ownership;
11. The ownership of 8650 Frisco, LLC;
12. The management of 8650 Frisco, LLC;
13. The corporate governance of the defendant entities, including the roles and
roles and responsibilities of officers and managers, company agreements
and bylaws, other governing documents, meetings and minutes of
meetings;
14. The financial affairs of the business entities, including but not limited to
profits and losses, inventories, equipment, balance sheets, and cash flow;
and
15. The lease for the real property occupied by 8650 Frisco, LLC, including
the negotiations and execution of the lease, the plaintiffs' personal
guaranty of the lease, and the terms of the lease and guaranty.
The deposition will continue from day to day until completed.
The deposition will be recorded stenographically and on videotape. The stenographic
recording will be conducted by Gulfstream Legal Court Reporting.
2
Exhibit R App. 225
Respectfully submitted,
STEPHENS & DOMNITZ, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
SBN: 19158300
P.O. Box 79734
Houston, Texas 77279-9734
Tel: 281-394-3287
Fax: 832-476-5460
kstephens@stephensdomnitz.com
HAWASH MEADE GASTON NEESE &
CICACK LLP
/s/ Andrew K. Meade
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
2118 Smith Street
Houston, Texas 77002
713-658-9006 (Direct & Fax)
ameade@hmgllp.com
jmasten@hmgllp.com
ATTORNEYS FOR PLAINTIFFS
LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
LOS CUCOS MEXICAN CAFÉ IV, Inc.,
MANUEL CABRERA, and
SERGIO CABRERA
3
Exhibit R App. 226
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on May 22, 2014.
Via Fax: 972-267-5072 and
email: courtdocuments@mosserlaw.com
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pkwy, Suite 290
Dallas, TX 75248
/s/ Andrew K. Meade
Andrew K. Meade
4
Exhibit R App. 227
Andrew K. Meade
ameade@hmgllp.com
713-658-9006 (direct & fax)
May 12, 2014
Via Email and Fax: (972) 267-5072
Mr. James Mosser
Mr. Nicholas Mosser
Mosser Law PLLC
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
RE: Cause No. 2014-10896; Los Cucos Mexican Café VIII, Inc. et al v. 8650 Frisco, LLC et al; In
the 133rd Judicial District Court of Harris County, Texas
Messrs. Mosser:
You will find enclosed notices of the deposition of Claudio Nunes for Monday, June 9, 2014, at
9:00 a.m. and David Jeiel Rodrigues for Tuesday, June 10, 2014, at 9:00 a.m.
Assuming that Mr. Nunes or Mr. Jeiel will be designated as corporate representative for any of
the companies, we will schedule their depositions for the same day. For example, if Mr. Nunes
will be designated as corporate representative for Mandona, LLC, then we will schedule the
deposition of the corporate representative for the same day as Mr. Nunes’s deposition.
Please advise whether Mr. Nunes or Mr. Jeiel will serve as corporate representative for any of
the defendant companies and, if so, which ones. If I have not heard from you by Monday,
May 19, 2014, I will unilaterally schedule the depositions of the corporate defendants for either
June 9 or June 10.
Thank you in advance for your attention and cooperation in this matter.
Respectfully,
Andrew K. Meade
AKM/nlj
Attachment
Cc: Kelly Stephens (Via Email)
2118 Smith Street | Houston, Texas 77002
Main Phone: (713) 658-9001 | Main Facsimile: (713) 658-9011
www.hmgllp.com
Exhibit R App. 228
EXHIBIT 4
Cause No. 2014-10896
LOS CUCOS MEXICAN CAFE VIII, § IN THE DISTRICT COURT OF
INC.; LOS CUCOS MEXICAN CAFE IV, §
INC.; MANUEL CABRERA; AND §
SERGIO CABRERA, §
§
Plaintiffs, §
§
v. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC D/B/A ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE; §
MANDONA, LLC; GALOVELHO, LLC; §
BAHTCHE, LLC; CLAUDIO NUNES; and §
DAVID JEIEL RODRIGUES, §
§
Defendants. § 133rd JUDICIAL DISTRICT
ORDER ON DEFENDANTS’ MOTION TO STAY ALL MATTERS
AND
PLAINTIFFS’ THIRD MOTION TO COMPEL
The Court, having considered Defendants’ Motion to Stay All Matters and Plaintiffs’
Third Motion to Compel and the respective responses, arguments of counsel, and evidence, has
determined that Defendants’ motion should be and is hereby DENIED and that Plaintiffs’ motion
should be and is hereby GRANTED. Specifically:
The Court DENIES Defendants' request to stay all matters.
The Court hereby OVERRULES Defendants' objections to Plaintiffs' Requests for
Production Nos. 1, 2, 3, 4, 5, 7, and 8. IT IS ORDERED that Defendants shall produce all
documents responsive to Requests for Production Nos. 1, 2, 3, 4, 5, 7, and 8 within 24 hours of
the entry of this order.
The Court FINDS that Defendants’ counsel has abused the discovery process in resisting
discovery and has determined that the following sanctions are appropriate, satisfy the legitimate
Exhibit R App. 229
purposes of discovery sanctions, and are neither more nor less stringent than necessary to
accomplish those purposes.
Accordingly, IT IS ORDERED that all expenses of discovery associated with the
underlying motion and the deposition of each of the Defendants in accordance with this order are
charged to the MOSSER LAW FIRM. The MOSSER LAW FIRM shall pay to Plaintiffs’ counsel
$ within 10 days of the signing of this order.
IT IS FURTHER ORDERED that the following facts are ESTABLISHED for all
purposes in this litigation: that Defendants have consented to venue in Harris County, Texas.
IT IS FURTHER ORDERED that failure to comply with this Order may result in the
further imposition of sanctions or a holding of contempt, punishable by fine or imprisonment or
both.
DATED:
______
JUDGE PRESIDING
Exhibit R App. 230
No. 2014-10896
LOS CUCOS MEXJCAN CAFE vm, INC.. ET AL. § IN THE DISTRICT COURT OF
§
§
vs. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC D/8/A ESTILO GAUCHO §
BRAZILIAN STEAKHOUSE, ET AL. § 133rd JUDIClAL DISTRICT
AMENDED NOTICE OF INTENTION
TOT AKE DEPOSITION BY WlUTTEN QUESTIONS
To Defendants by and through their attorney of record: Nicholas Mossc1·
To other party/parties by and through their attorney of record: Kelly D. Stephens
You will please take notice that on June 16.2014 at 10:00 a.m., a deposition by written questions will be taken of the Custodian of
Records for:
Mike Vea•ucchi, C PA
9319 LBJ Fa•eeway, Ste. 100, Dallas, TX 75243
before a Notary Public for Gulfstream Legal Group, LLC
1300 Texas St.
Houston, TX 77002
Ph: 713-237-4700 II Fax: 888-559-7431
or its designated agent, which deposition with attached questions may be used in evidence upon the trial of the above-styled and
numbered cause pending in the above-named court, Notice is further given that request is hereby made as aulhotized under Rule
200, Texas Rules of Civil Procedure, to the officer taking this deposition to issue 11 subpoena duces tecum and cause it to be
se.rved on the witness to produce any and all records as desc1·ibed on the attached questions and/or Exhibit(s) and to turn all such
records over !o the otlioer authorized to take this deposition so that photographic reproductions of the same may be made and
attached to said deposition.
Mr. Andrew K. MeAde
StAte Baa• No. 24032854
Mr. Je•·emy M. M11sten
State Dna· No. 24083454
HaWitsh Meade Gaston Neese & Cicacl< LLP
21 18 Smith Stl·eet
Houston, TX 77002
Ph: 713-658-9001// Fax: 113-658-9011
Attorneys for Plaintiffs, Los CocosMedcan Cafe Vlli, Jnc., et al.
1 hereby cenify that a h'\Je and correct copy of the foregoing instrument has been forwarded to all Counsel of Record by band-delivery,
facsimile, and/or certified mail (rctum receipt requested) on this day.
oat«! t;" ( I '\ l\'\
Ordet• No. 5091
Exhibit R
Exhibit 8 Ohio App. 231
 DEPOSITION SUBPOENA TO TESTIFY OR PRODUCE DOCUMENTS OR THIN\...S
THJ£ STATE OF TEXAS
To any Sheriff or Constable of the State ofTexas or other person authorized to serve subpoenas under Rule 176 oftlte T~s Rules of
Civil Procedure- GREETINGS -
You are hereby commanded to subpoena and summon the Custodian of Records for:
MJke Verucchl, CPA
9319 LBJ Freeway, Ste.100, Dallas, TX 75243
to be ond appear before aNoiary Public: of my designation for. Gulfslreun Legal Group, LLC, 1300 Te:xas St, Hourton, TX 77002 or its
designated agent on June 16, 2014 at 10:00 a.m at the office ofthe custodian, and there under oath to make answers of certain written
questions to be propounded to the wit.ness and to brlng and produce for inspection and photocopying
ANY AND ALL RECORDS (WHETHER TYPED, HANDWRITTEN OR COMPUTER-GENERATED) PERTAINING TO
8650 FRISCO LLC, including but not limited to any type of financial records; accountlng records; bank statements; tax
records (Including 1099 forms, W-2 rorms md K-1 rorms); reports; office notes; correspondence; md p rintouts of any type of
data stored In electronic format. including my e-mau transmlsston(s)
then and there to give evidence and lhere remain from day to day and time to time until discharged according to law at the instance of
the Plaintiffs, Los Cucos Mexican Cafe Vill, Inc., et al.; represented by Andrew K. Meade and Jeremy M. Masten. Attorneys af
Record, in that certain Cause No. 2014-10896 pending on lbe docket af the District Court of l11e 133rd Judicial District of Harris
County, Texas.
This Subpoena is issued under and by vit1ue of Rule 200 and Notice of Deposition Upon Writ~en Question.s on file with the abov~
named court. styled
LOS CUCOS MEXICAN CAFE VITI, INC., ET AL. vs.
8650 FRISCO, LLC D/WA ESTILO GAUCHO BRAZillAN Sl'EAKHOUSE, ET AL
WITNESS MY HAND, this 14th day ofMay, 2014.
I IIIII
,\_
$~•:.'!!':~--.. MICHAEl R. MILLER
f·:~r§ Notary Public. State ol TeKas
\``.P-1/.;-f My Commission Expires
~"'/,{,f.!j~t,,"' November 06, 2014 NOTARY PUBLIC (___)
176.8 Enforctmmt of Subpotna (a) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person mny be
deemed a contempt of the court from which the wbpoena is issued or a district court in the county in which the subpoena is served, and may be
punished by fine or confinement, or both.
OFFICER'S RETURN
Came to hand this _ _ day of 20_ , and executed this the _ _ day of 20____J in lhe
following manner: By delivering to the witness a !me copy hereof
Retumed this day of .20__,
Ordtr No. 5091.001 PROCESS SERVER
Exhibit R App. 232
No. 2014-10896
LOS CUCOS MEXICAN CAFE VITI, .I NC., ET AL. § IN THE DISTRICT COURT OF
§
§
vs. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC D/B/A ESTILO GAUCHO §
BRAZILIAN STEAKHOUSE, ET AL. § 133r·d JUDICIAL DISTRICT
AMENDED DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS
Custodian of Records fOI: Mil9 Ohio App. 235
 Rodrigues, for inter alia breach of contract and conversion.
2. Discovery in this suit is governed by a Level 3 discovery-control plan.
3. The discovery period ends February 5, 2015.
4. This case has not been set for trial.
BACKGROUND (j~ *
5. On May 15, 2014, Plaintiffs served a Deposition Su~ena To Testify Or
~
Produce Documents or Things on the cust~ of records for Mike
Verucchi, an accountant with whom Def~nts are clients. Exhibit A
~
(Exhibit A also includes the correspo``ce sent to Mr. Verucchi from
Plaintiffs' agent). ~,ffp
6. On the same day, Plaintiffs ai~Yerved
g
Mike Verucchi, with their Notice
of Intention To Take DepQ~n By Written Questions.
7. Mike Verucchi, a no~ty witness in this cause of action, is the
custodian of recor``
8.
u
The subpoef],~quests the any and all records pertaining to 8650 Frisco,
LLC inclu"~
g
but not limited to any type of:
a. ~ncial records
b. Accounting records
c. Bank statements
Motion to Quash and for Protective Order 2
Exhibit R App. 236
d. Tax records
e. Reports
f. Leases
g. Guaranties *
r\A``~
h. Records of trademarks and other intellectual pr v·Y
i Office notes " rl}
. ~
j. Correspondence i:J/f!fJ
k. Printouts of any type of data stored ~ectronic format, including
~
any email transmissions. Q«(fjj
ARGUMENT AN~THORITIES
u
MOTI~ TO QUASH
9. The Court should quash tb~bpoena because it fails to comply with the
Texas Rules of Civil P``ure.
10. Tex. R. Civ. P. 17~) limits the subpoena power of the court to 150
a
miles from w"~ the person resides or is served.
11. Mr. Verru~was served in Dallas, Texas and the place for deposition
g
is H4n, Texas.
12. Houston is more than 150 miles from Dallas, and therefore no
documents will be produced and the Subpoena is unenforceable. In re
Motion to Quash and for Protective Order 3
Exhibit R App. 237
SXPAnalytics, LLC, Cause No. 14-11-01039-CV., 2012 WL 1357696,
3 (Tex.App.-Houston [14 Dist.],2012) ("Dallas is also beyond the
150-mile subpoena range from Harris County. See Tex.R. Civ. P.
176.3."); In re ENSCO Offshore Intern. Co. 311 S.~:j} 921, 926
(Tex.,2010) ("compulsory process is unavailable for t~st majority of
WI't nesses. ") . ~ ~
13. Defendants have explained this issue to ~ffs counsel and the
deposition company issuing the subpoena?~intiffs ignored this advice.
~
Exhibit 8 & C. Q!f@
0~
14. The Court should further issue ~tective order to require Plaintiffs
adhere to Rule 176.3(b) as th~Pactics
g
thus far in this litigation have run
roughshod over every rul~ ~ivil procedure, local rule, statute, and case
~
law they have come ac~s. Rule 176.3(b) clearly states that a "subpoena
may not be used ~lscovery to an extent, in a manner, or at a time
u
~vided by the rules governing discovery." Tex. R. Civ. P.
other than as0``
o({j
176.3(b). ~
g
15. Plain``re not permitted to use subpoenas to seek information from an
non party with the threat of contempt and attachment of orders of the
court which are not relevant to that non party. (Plaintiffs' agent Gulf
Motion to Quash and for Protective Order 4
Exhibit R App. 238
Stream Legal, at the direction of Plaintiffs attached the Court's order
regarding Mr. Holtman issued on May 12, 2014 inferring that the order
was applicable to Mr. Verucchi.)Exhibit A.
16. Furthermore, Plaintiffs have failed to comply with 191.4(b ~
PRAYER ``
17. WHEREFORE, PREMISES CONSIDERED, Mov~equests that the
~
Court quash the above-described Subpoena~use it fails to comply
with the Texas Rules of Civil Procedure ~is an improper discovery
~
tactic. Defendants request the Court i``a protective order preventing
Plaintiffs from engaging in abusiv``overy tactics.
Respectfully submitted, MOSSER~W
u PLLC
({@
Is/ Nicholas D. Mosser o ~
James C. Mosser n_tfi!!P
Texas Bar No. 00789784:__~0
Nicholas D. Mosser ``
Texas Bar No. 2407!))
Benjamin Casey . ~
Texas Bar No. 24~267
17110 Dallas ``ay, Suite 290
Dallas, Texa``248
Telephone -733-3223
Facsimile~ -267-5072
cou rtd ocu ments@mosserlaw.com
Lawyers for Defendants
Motion to Quash and for Protective Order 5
Exhibit R App. 239
CERTIFICATE OF SERVICE
I certify that on June 13, 2014, a true and correct copy of this document
was served pursuant to Tex. R. Civ. P. 21 and 21 a, to the following counsel:
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
Is/ Nicholas D Mosser
By: Nicholas D. Mosser
Motion to Quash and for Protective Order 6
Exhibit R App. 240
CERTIFICATE OF CONFERENCE
This is to certify that the undersigned attorney could not resolve the
issues surrounding this Subpoena without court intervention. Therefore, the
matter is presented to the Court for determination. Exhibit B & C are
Defendants' attempt at conferring with Plaintiffs. In addition Defendants
contacted Gulf Stream Legal indicating the error in their subpoena, this
conference was unsuccessful.
Is! Nicholas D. Mosser
Nicholas D. Mosser
Motion to Quash and for Protective Order 7
Exhibit R App. 241
MOTION TO COMPEL
1
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
2 TRIAL COURT CAUSE NO. 2014-10896
3
4 LOS CUCOS MEXICAN CAFE VIII( IN THE DISTRICT COURT OF
INC.;LOS CUCOS MEXICAN (
5 CAFE IV,INC.; MANUEL (
CABRERA;AND SERGIO CABRERA (
6 (
VS. ( HARRIS COUNTY, TEXAS
7 (
8650 FRISCO,LLC D/B/A ESTILO
8 GAUCHO BRAZILIAN (
STEAKHOUSE; MANDONA,LLC; (
9 GALOVELHO,LLC;BAHTCHE, (
LLC; CLAUDIO NUNES; AND (
10 DAVID JEIEL RODRIGUES ( 133rd JUDICIAL DISTRICT
11 _______________________________________________________
12
MOTION TO TRANSFER
13 _______________________________________________________
14
15 On the 23rd day of June, 2014, the following
16 proceedings came on to be held in the above-titled and
17 numbered cause before the Honorable JACLANEL McFARLAND,
18 Judge Presiding, held in Houston, Harris County, Texas.
19 Proceedings reported by computerized stenotype
20 machine.
21
22
23 DARLENE STEIN
OFFICIAL COURT REPORTER
24 133RD DISTRICT COURT
HARRIS COUNTY, TEXAS
25
DARLENE STEIN
Exhibit R
Exhibit 10 Ohio App. 242
 MOTION TO COMPEL
2
1 APPEARANCES
2 Mr. Andrew K. Meade
SBN 24032854
3 Mr. Samuel B. Haren
SBN 24059899
4 2118 Smith Street
Houston, Texas 77002
5 Telephone: (713)658-9001
Telephone: (713)658-9011 (Fax)
6 Attorney for Plaintiffs
7
Mr. Nicholas D. Mosser
8 SBN 24075405
Mr. James Mosser
9 SBN 00789784
17110 Dallas Parkway, Suite 290
10 Dallas, Texas97 75248
Telephone:) (972)733-3223
11 Telephone: (972)267-5072
Attorney for Defendants
12
13
14
15
16
17
18
19
20
21
22
23
24
25
DARLENE STEIN
Exhibit R App. 243
MOTION TO COMPEL
3
1 CHRONOLOGICAL INDEX
2 June 23, 2014
3 PAGE
4 Proceedings............................... 4
5 Argument by Mr. Meade..................... 6
6 Argument by Mr. Mosser.................... 11
7 Proceedings concluded..................... 25
8 Reporter's Certificate.................... 26
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
DARLENE STEIN
Exhibit R App. 244
MOTION TO COMPEL
4
1 (P R O C E E D I N G S)
2 June 23, 2014
3
4 THE COURT: This is Cause No. 2014-10896.
5 And if everyone would announce who they are and who they
6 represent, please.
7 MR. MEADE: Andrew Meade and Sam Haran for
8 the Plaintiffs.
9 THE COURT: Mr. Mosser, if you'll announce
10 who you are and who you represent, please.
11 MR. MOSSER: I'm sorry?
12 THE COURT: Announce who you are and who
13 you represent.
14 MR. MOSSER: Yes, ma'am. This is James
15 Mosser, Mosser Law Firm, PLLC, appearing telephonically
16 on behalf of all Defendants.
17 THE COURT: Okay. I will tell you that I
18 don't have the motions in front of me. My law clerks
19 have gone to get them. For some reason, even though you
20 are on the docket, they thought it had been pulled. So,
21 anyway, but I'm going to let y'all go ahead and start. I
22 think it's Plaintiff's motions. So, I'm going to let
23 them go ahead and start while the law clerks are bringing
24 in the actual written motions.
25 MR. MEADE: All right. Your Honor, if
DARLENE STEIN
Exhibit R App. 245
MOTION TO COMPEL
5
1 you'll recall, this is a -- my client supplied about
2 $950,000 in some equipment for a restaurant --
3 MR. MOSSER: Your Honor, if he could get
4 closer to the microphone or speak up louder, it would be
5 easier to hear.
6 THE COURT: Yeah. Well, I'll put the
7 phone a little closer. But, you know, have you got a
8 storm in Dallas? Is that the problem or what? You know,
9 when you don't show up, it's -- we can only do the best
10 we can do.
11 You know, that's why when I practiced law,
12 I didn't depend on Southwest. Now, going to committee
13 meetings, I depended on Southwest a lot. I was on a lot
14 of Baptist boards that met over on North Washington, the
15 Baptist building. But when I had a case, I usually drove
16 down the night before or drove up or drove west or east or
17 wherever I was going.
18 MR. MEADE: And -- and for convenience,
19 Your Honor, we will try to set hearings in the case on
20 Fridays and Mondays to make that more convenient.
21 THE COURT: Well, we don't have hearings
22 on Fridays. So, they have to be on Mondays.
23 MR. MEADE: Mondays.
24 And so, the situation that we've got
25 here -- Your Honor will recall that we had previously
DARLENE STEIN
Exhibit R App. 246
MOTION TO COMPEL
6
1 noticed depositions for early May of the Defendants, that
2 those depositions had been quashed. So, we set a Motion
3 to Compel. The Court ordered the depositions to occur in
4 June. We agreed on dates that were put into the Court's
5 order, which was June 9th and 10th for six depositions to
6 occur.
7 On the Sunday before -- June 9th was a
8 Monday. 10th was a Tuesday. On the Sunday before,
9 Mr. Mosser left a message on Mr. Stephen's phone, saying
10 that he wouldn't be attending the depositions nor would
11 his clients because -- and they subsequently filed a
12 motion. Mr. Mosser apparently has a nervous system injury
13 of some sort that he came down with the day before the
14 depositions. And there is nobody else within his
15 four-person law firm who's qualified to sit in a chair and
16 defend a deposition.
17 He then went and set his Motion to Transfer
18 Venue, offered us some dates in late July that -- or --
19 that conflict with a trial that I have in Judge
20 Englehart's court. And then when I rejected those dates,
21 offered dates in August.
22 And we have run into a problem now, which
23 is that I leave the country on Saturday for two and a half
24 weeks. I get back and have five days to prepare for a
25 week-long trial in Judge Englehart's court. And then at
DARLENE STEIN
Exhibit R App. 247
MOTION TO COMPEL
7
1 the end of the week that I'm in trial with Judge Englehart
2 is their Motion to Transfer Venue. We have taken the
3 position, which is correct under the rules, that discovery
4 should not be and cannot be, in fact, abated while a
5 Motion to Transfer Venue is pending.
6 They have taken the position and even set
7 for today and then withdrew a Motion to Stay all
8 proceedings while they have the opportunity to have that
9 Motion to Transfer Venue heard.
10 We're going to have to take these
11 depositions before the Motion to Transfer Venue hearing.
12 We need them ordered and compelled, and we need the Motion
13 to Transfer Venue hearing pushed back till that can
14 happen.
15 But we also need Mr. Mosser or his clients
16 to pay the costs of the depositions that were ordered -- I
17 took Certificates of Nonappearance on all six
18 depositions -- and that they ought to have to bear the
19 cost on each of those.
20 The next issue that we have is as you'll
21 recall, we have an accountant that worked for the company
22 in New Braunfels and then a new accountant in Dallas. We
23 had the -- the letter and correspondence where they said,
24 you know, turn over all records and destroy all in your
25 possession. And -- and we had to move to compel the
DARLENE STEIN
Exhibit R App. 248
MOTION TO COMPEL
8
1 accountant to produce the records from New Braunfels, and
2 he did produce the records to us.
3 But we have also asked for certain
4 financial records, including tax records and other
5 financial documents from the Defendants themselves; and
6 soon we will -- and, also, their new accountant, who will
7 soon have to come down on a Motion to Compel, as well,
8 although that's not part of today.
9 The -- the other issue that is part of
10 today is their responses and objections to our requests
11 for production, which deal with the financial and tax
12 records.
13 Starting with the tax records, there are
14 numerous reasons why as members of the company and --
15 that -- that we're entitled to the tax records of an LLC.
16 First of all, the statute allows it.
17 Second, we need to prepare our own tax
18 returns.
19 Third, how they chose to characterize our
20 capital contributions, the proportion of what is
21 characterized as a loan and capital contribution and all
22 of that is going to be relevant to the parties' agreement
23 or disagreement about our membership status and -- and how
24 much money is owed in terms of -- our position is that
25 part of the money was loaned and part of it was a capital
DARLENE STEIN
Exhibit R App. 249
MOTION TO COMPEL
9
1 contribution, and -- and they may or may not disagree,
2 although they haven't disclosed their theory of the case
3 to us at all in any way. That will be relevant, those tax
4 records.
5 The other financial records, which include
6 bank account statements, we're -- we're entitled to the
7 books and records, again, of the company; but, also, these
8 bank account statements are going to be relevant to
9 whether distributions -- because under the -- under the
10 limited liability company act, under the partners' oral
11 agreement, and under the written agreements that were
12 exchanged, we would be entitled to distributions of
13 distributable cash.
14 None have been made to us. We believe some
15 have been made to the Defendants, substantial
16 distributions, and that there is distributable cash. We
17 believe that, but we don't have the records to show it,
18 and the bank statements will go a long ways towards that.
19 What we've met with to date is an objection
20 every step of the way and resistance even to Court-ordered
21 depositions. And -- and the objection that was made, for
22 example, to the accountant's records was that objection of
23 privilege that the Texas courts don't recognize. Well, it
24 was made again in response to requests for production
25 after the Court had already ruled on the objection in
DARLENE STEIN
Exhibit R App. 250
MOTION TO COMPEL
10
1 relation to the accountant.
2 They made other objections; for example,
3 objecting that the Texas Finance Code provides the
4 exclusive means to get bank account statements, even bank
5 account statements of a party. I -- I assure you that I
6 will go to the bank, under the Texas Finance Code, and get
7 the bank statements separately. But that doesn't
8 alleviate the obligation of a party to produce those bank
9 statements.
10 So, a recommendation in -- in one of my
11 motions is really -- it's really -- we're asking for the
12 relief but sort of recommending a path for the Court,
13 would be to appoint a discovery master in the case. I
14 don't mind coming down here once a week, and I suspect we
15 will be back here again in a week. And I'll tell you why.
16 You know, we had these grills. I -- I
17 don't know if you remember the -- the unique grills.
18 Well, we have reason to believe that the grills have been
19 destroyed. And I've asked for an inspection of the
20 collateral, of -- of the property. They haven't responded
21 to it. I'm going to be asking the Court for it and
22 probably having to move it to compel.
23 When these depositions do occur, I suspect
24 I'm going to meet with a series of objections and probably
25 instructions to the witness not to answer and that sort of
DARLENE STEIN
Exhibit R App. 251
MOTION TO COMPEL
11
1 thing. And I -- and we can have the depositions in your
2 chambers. I leave it to the Court's discretion of how we
3 deal with these issues; but I would rather, if we can
4 avoid it -- and I -- I know that judges, including
5 yourself, don't like us coming down here all the time on
6 Motions to Compel. I would like to avoid them, if
7 possible. And so, the appointment of a discovery master
8 is one suggestion to do that.
9 And I'll let Mr. Mosser respond.
10 THE COURT: Mr. Mosser?
11 MR. MOSSER: Yes, ma'am.
12 THE COURT: You may respond.
13 Hello?
14 MR. MOSSER: Yes, ma'am. I'm right here.
15 THE COURT: Where -- you want to respond?
16 MR. MOSSER: Oh, yes, ma'am. I surely
17 will. Thank you.
18 May it please the Court? Let me go
19 backwards a little bit here. Let's start with the grills
20 are being destroyed, which is a false statement made by
21 counsel. It has become custom in this case. The problem
22 is we sent notice to counsel that he should come and pick
23 up the grills, and counsel told us they weren't going to
24 pick up the grills.
25 So, we told them if they leave the grills
DARLENE STEIN
Exhibit R App. 252
MOTION TO COMPEL
12
1 that they claim they loaned to my clients, we told them,
2 If you don't pick them up, we'll just put them in storage;
3 and you can pay the storage bill when you get here.
4 Nobody said they were going to destroy them, and it's just
5 outrageous that he would say those kinds of things.
6 As for bank accounts, the Finance Code does
7 provide the method by which he can obtain the bank
8 accounts. But let's assume he doesn't want to do that and
9 I'm required to deliver bank accounts. If the Court will
10 recall, he mentioned that he held a deposition on written
11 questions for Mr. -- I can't remember the accountant's
12 name -- Hal Holtman, I think -- to produce all the records
13 he had related to anything with my clients.
14 Now, if you will recall from the -- the
15 Temporary Injunction hearing, Mr. Holtman went and
16 testified on everything we told him he shouldn't be
17 testifying on; and then he subsequently, based on comment
18 from counsel this morning, delivered all the documents he
19 had to the Plaintiff's lawyers in this case. That
20 includes the tax returns, all bank statements, all the
21 income statements, all the financial statements,
22 everything related to the business until Mr. Holtman was
23 fired.
24 Now, the Court ordered that. Mr. Holtman
25 turned them over, over our objection. So, I don't think
DARLENE STEIN
Exhibit R App. 253
MOTION TO COMPEL
13
1 that we're required to produce records in a duplicitous
2 manner that have already been produced by the accountant
3 in this case.
4 And, secondly, those documents were
5 produced to opposing counsel who has yet to this day
6 served them on us. When he gets discovery from whatever
7 source it's from, he's required to serve everybody in the
8 lawsuit, all parties, a copy of that discovery. He has
9 not done so. So, I don't have any.
10 Going back to the top of the complaint from
11 opposing counsel, I'm 69 years old; and I can't help it if
12 my sacral iliac joint gets sprained, inflamed, bruised,
13 and strained. I can't do anything about that. We
14 immediately notified, upon determination that I was
15 immobile, that this deposition had to be reset or
16 postponed.
17 I think it's outrageous that I can't even
18 pick up the phone and call a counsel for a medical problem
19 that he won't reset depositions for or even respond to the
20 telephone calls. I think it's outrageous that they file
21 motions claiming that they've had a conference with
22 opposing counsel, which is plainly false. They didn't
23 have any conference with us. In fact, they filed these
24 motions and then claimed that they had a conference after
25 they filed the motion.
DARLENE STEIN
Exhibit R App. 254
MOTION TO COMPEL
14
1 As for offering dates, we offer to set a
2 date in July; and understanding trial schedules, as I do,
3 I was required to file a Motion to Continuance on -- let's
4 see -- that date that he wanted to do these, the 16th,
5 17th, somewhere in there because I had a special setting.
6 I had to go into that court and request the Court reset
7 the special setting in that case because of my sacral
8 iliac sprain.
9 I don't under -- I suppose five years ago
10 when I had my quadruple bypass surgery, opposing counsel
11 would complain because that was just an excuse. These are
12 not excuses. These are real-live things. We've offered a
13 second set of dates. Counsel didn't even respond to them.
14 Now, counsel also says that we don't -- we
15 should take depositions to get proof for the Motion to
16 Transfer Venue. I don't think the Motion to Transfer
17 Venue is set for today, but he puts it in his -- in his
18 response or his Third Amended Motion to Compel, and I
19 don't understand. He believes that the testimony given in
20 open court on the record and sworn to by his clients can't
21 be used in Motion to Transfer Venue. At some point in
22 time, the Court will have to rule on that motion; and I
23 will be happy to defend that issue.
24 As for costs, counsel fails to properly
25 prepare any cost statements, hasn't made any cost
DARLENE STEIN
Exhibit R App. 255
MOTION TO COMPEL
15
1 statements, hasn't suffered from any problems other than
2 my sacral iliac joint sprain; and I don't think he would
3 like me sitting in his conference room, taking the
4 narcotics that I was taking and the side effects that go
5 with it.
6 So, he has all of the financial records we
7 believe that exist, delivered by Holtman over our
8 objection. He did not properly serve the accountant --
9 the new accountant in Texas, which is more than 150 miles
10 and -- away, and he doesn't have a right to get anything
11 from him.
12 And as for tax records from the LLC,
13 they're not members. They never have been members.
14 They're not members. They rejected the opportunity to
15 become a member, and that's clear testimony in the
16 Temporary Injunction hearing.
17 So, I think I've covered the waterfront.
18 But as far as tax returns, the State of Texas has made
19 very clear by the Supreme Court and the Court of Appeals
20 in Houston -- I think every Court of Appeals has said it
21 is an abuse of discretion requiring the disclosure of
22 Federal income tax returns if other documents can provide
23 the information necessary.
24 But in order to even search out and get
25 that information, opposing counsel is required to provide
DARLENE STEIN
Exhibit R App. 256
MOTION TO COMPEL
16
1 the relevancy and materiality that's necessary as to his
2 claims. He has none. He hasn't presented any. He hasn't
3 asked for any. He hasn't said a single word that shows
4 that a tax return, a financial statement, or any of these
5 other intrusive and burdensome matters are necessary for
6 his claims. And the Court should deny his motions in
7 total.
8 Thank you.
9 THE COURT: When do you want to take the
10 depositions?
11 MR. MEADE: Well --
12 MR. MOSSER: I'm sorry, Judge?
13 THE COURT: I'm -- I'm asking your
14 opposing counsel when he wants to take the depositions.
15 MR. MEADE: I knew you were going to ask
16 that, and I think the simplest answer to that is before
17 the Motion to Transfer Venue is heard.
18 THE COURT: Okay.
19 MR. MEADE: The more complex answer is
20 after the week of the 21st of July because I have a trial
21 that entire week. But we are set number one. So, we
22 will go; and I will be done that week because it's a
23 breach of contract case.
24 So, following that week, I only have one
25 day that I have a -- I have a deposition currently set
DARLENE STEIN
Exhibit R App. 257
MOTION TO COMPEL
17
1 that I'm defending on the 28th of July. Otherwise, I am
2 wide open to -- to take these depositions.
3 THE COURT: Okay. Counsel, you heard
4 that, I assume. So, pick a date after his trial in Judge
5 Englehart's court and not on July -- what?
6 MR. MEADE: 28th.
7 THE COURT: -- 28th that you can produce
8 your people for depositions.
9 MR. MOSSER: I'm looking at the calendar
10 now, Judge.
11 THE COURT: Okay.
12 MR. MOSSER: I would recommend August 4th
13 and 5th, and I -- I would like to also add, Judge, that
14 four of the depositions that were set, two of them -- on
15 two separate days, two of them were set at exactly the
16 same time. And then the next day, two more were set at
17 exactly the same time, which I would discourage that
18 concept as appropriate.
19 MR. MEADE: And -- and here would be my
20 response. If Mr. Mosser would cooperate with me --
21 MR. MOSSER: But the 4th and the 5th are
22 good with me, Judge.
23 MR. MEADE: If Mr. Mosser would cooperate
24 with me a little bit and let me know -- these are an
25 individual -- two individuals and four corporate
DARLENE STEIN
Exhibit R App. 258
MOTION TO COMPEL
18
1 representatives who may be, and I suspect will be, those
2 same individuals -- could all be taken possibly at the
3 same time or concurrently with each other. But
4 Mr. Mosser hasn't identified who are -- who's going to be
5 the corporate representative. So, I don't know how else
6 to do it.
7 If he will identify who will be the
8 corporate representatives for those entities, I will
9 notice the -- the depositions so that they don't conflict
10 timewise with one other another.
11 MR. MOSSER: As you previously noticed,
12 the doc -- the areas of inquiry, Mr. Rodriguez will be
13 the deponent.
14 MR. MEADE: On all, Mr. Mosser?
15 MR. MOSSER: Yes.
16 MR. MEADE: Okay. Then I will -- I will
17 set it up so that they don't conflict with one another.
18 MR. MOSSER: Thank you.
19 THE COURT: Okay. So, pick, the 4th of
20 the 5th of August?
21 MR. MEADE: It will be both, Your Honor.
22 THE COURT: Oh, both.
23 MR. MEADE: Yeah.
24 THE COURT: Okay. All right. The
25 depositions are set for the 4th and the 5th. And
DARLENE STEIN
Exhibit R App. 259
MOTION TO COMPEL
19
1 Plaintiff's counsel will send notice, but they are now
2 set. He'll send notice as to time and place, I assume,
3 which I assume you've already -- where -- where are they
4 going to be?
5 MR. MEADE: Well, as Mr. Mosser doesn't
6 have an office here in Houston --
7 THE COURT: Okay.
8 MR. MEADE: -- I'm just going to do them
9 at my offices here in Houston, Your Honor.
10 THE COURT: Right. And I presume that's
11 okay with you, Mr. Mosser?
12 MR. MOSSER: Oh, yes, ma'am, that's fine
13 with me.
14 THE COURT: Okay. Now, as to fees of the
15 nonappearance, I'm not going to order anything at this
16 time. I will consider it later as the case progresses,
17 depending on how discovery goes. So, I will just hold
18 that under advisement.
19 What else was there?
20 MR. MEADE: The objections, which I think
21 lie in the Third Motion to Compel, which are Motions to
22 Compel the responses to discovery that ask for a
23 variety -- it's -- it's a variety of financial
24 information, including bank statements and -- and tax
25 returns.
DARLENE STEIN
Exhibit R App. 260
MOTION TO COMPEL
20
1 THE COURT: Mr. Mosser, have -- does your
2 client have the bank statements?
3 MR. MOSSER: I'm sorry, Judge?
4 THE COURT: Does your client have the bank
5 statements?
6 MR. MOSSER: I think Mr. Holtman has them,
7 and opposing counsel has collected everything Holtman
8 has. And I would like the Court to order opposing
9 counsel to deliver those documents that he got from the
10 third-party witness Holtman to us.
11 THE COURT: Well, let me ask -- that --
12 that wasn't my question.
13 MR. MOSSER: I understand.
14 THE COURT: My question is: Does your
15 client have them?
16 MR. MOSSER: No. I think -- I think
17 Holtman has them all.
18 THE COURT: So, your client didn't keep a
19 copy?
20 MR. MOSSER: Nobody sends out copies of
21 bank statements any more, Judge.
22 THE COURT: Sure they do. I get them
23 every month.
24 MR. MOSSER: I appreciate that, Your
25 Honor. Let me put it a different way. Many businesses
DARLENE STEIN
Exhibit R App. 261
MOTION TO COMPEL
21
1 do not get bank statement in paper form.
2 THE COURT: Well, do they get them
3 electronically where they can print them out?
4 MR. MOSSER: My understanding, Your Honor,
5 is that Holtman has all the bank statements.
6 THE COURT: So, your client doesn't get
7 the e-mail saying, Your bank statement is ready to be
8 printed out; or they can't go in and print it out?
9 MR. MOSSER: I haven't made that
10 particular inquiry.
11 THE COURT: Yeah.
12 MR. MOSSER: Because they're with the bank
13 and the accountant.
14 THE COURT: Well, my guess is your client
15 has access to them by -- if they -- if they're not like
16 me and they don't pay to get a paper statement or get a
17 paper statement, they get an e-mail saying, Your bank
18 statement is online. And you just log in, and you can
19 print it out.
20 MR. MOSSER: I understand what the Court
21 is saying, but my suggestion is that they already have
22 all of that stuff. They got it from Holtman.
23 MR. MEADE: Your Honor, if I -- if I could
24 add one -- as Your Honor may recall, they -- the
25 Defendants fired Mr. Holtman, who is the CPA, from the
DARLENE STEIN
Exhibit R App. 262
MOTION TO COMPEL
22
1 company in March, terminated my client's access and his
2 access to all of the bank accounts. Then -- then hired a
3 new accountant located up in Dallas and identified him as
4 the new CPA, to which Holtman was supposed to and did
5 send all of the information.
6 As far as account statements, the -- it's
7 an ongoing duty, in fact, and they -- they have the
8 duty -- even if, in fact, we had gotten all of the
9 information and -- and Mr. Mosser has just said he doesn't
10 actually know what we've gotten. Even if had gotten all
11 of the information, it wouldn't alleviate their
12 responsibility to produce it, too, because, for example,
13 we might be missing a page of a bank statement. We might
14 want to use a 173, you know, authentication means for the
15 documents.
16 But there are certainly post termination of
17 Mr. Holtman, zero financial records that we have access to
18 but that the Defendants have access, custody, and control
19 over those documents exclusively; and that's what we're
20 asking for.
21 THE COURT: Okay. So --
22 MR. MEADE: Their current accountant has
23 all of it, and they have all of it.
24 THE COURT: All right.
25 MR. MOSSER: Well, we don't really know
DARLENE STEIN
Exhibit R App. 263
MOTION TO COMPEL
23
1 that.
2 THE COURT: Well, I'm going to overrule
3 your objections and tell you to produce it if it's
4 available to you.
5 MR. MOSSER: From the time that Holtman
6 was terminated? Because they already have everything
7 else.
8 THE COURT: No. Just from what they've
9 requested.
10 MR. MOSSER: And will you order them to
11 deliver us what Holtman has?
12 MR. MEADE: I don't need to be ordered to,
13 Your Honor. I will -- I haven't had him even ask me. If
14 you send me a letter asking for it --
15 THE COURT: Well, he's asking now. Send
16 it to him.
17 MR. MEADE: I'll send it to him, Your
18 Honor.
19 THE COURT: Yeah. I'm not going to order
20 him, but he -- he said on the record now he's going to
21 send you copies of it.
22 MR. MEADE: Well, in fact, if it's
23 easiest, I will upload it onto FPT link; and you can
24 download it from your computer today.
25 THE COURT: You want to do that, Counsel?
DARLENE STEIN
Exhibit R App. 264
MOTION TO COMPEL
24
1 MR. MOSSER: Which kind of link?
2 THE COURT: I don't know. It's over my
3 head.
4 MR. MEADE: I will suggest a couple of
5 means by which I can deliver the documents to you,
6 Mr. Mosser.
7 THE COURT: He will -- he will get them to
8 you.
9 MR. MEADE: You can choose the most
10 convenient means to you.
11 THE COURT: Okay. On the -- I've looked
12 at the interrogatories, your objections are overruled.
13 What else have we got?
14 MR. MEADE: The requests for production
15 objections that were --
16 THE COURT: Yeah, and they're overruled,
17 also.
18 Anything else?
19 MR. MEADE: And -- nothing else unless
20 Your Honor -- and I -- and from what Your Honor said
21 earlier, I think you're not inclined to appoint a master
22 at this --
23 THE COURT: I'm not.
24 MR. MEADE: -- point in the discovery.
25 So, I won't --
DARLENE STEIN
Exhibit R App. 265
Motion to Compel
25
1 THE COURT: And we will reset --
2 MR. MEADE: -- belabor the point.
3 THE COURT: -- the motion for change of
4 venue until after the deposition.
5 MR. MEADE: Thank you, Your Honor.
6 Nothing else today.
7 THE COURT: Anything else?
8 MR. MOSSER: No, Your Honor.
9 THE COURT: Counsel, I hope you feel
10 better. I know --
11 MR. MOSSER: Thank you very much, Judge.
12 THE COURT: I know how it feels to get
13 older, but...
14 MR. MOSSER: I appreciate it, Judge.
15 THE COURT: Okay. Thank you.
16 MR. MOSSER: Yes, ma'am.
17 MR. MEADE: Thank you. Have a good week,
18 Your Honor.
19 THE COURT: Thank you.
20 (Proceedings concluded.)
21
22
23
24
25
DARLENE STEIN
Exhibit R App. 266
Motion to Compel
26
1 STATE OF TEXAS
2 COUNTY OF HARRIS
3 I, DARLENE STEIN, Official Court Reporter in and
4 for the 133rd District Court of Harris, State of
5 Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested
8 in writing by counsel for the parties to be included
9 in this volume of the Reporter's Record in the
10 above-styled and numbered cause, all of which
11 occurred in open court or in chambers and were
12 reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, offered by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $312.00 and
18 was paid by Mr. Andrew Meade.
19
/s/Darlene Stein_________
20 DARLENE STEIN, CSR
Texas CSR 2557
21 Official Court Reporter
133rd District Court
22 Harris County, Texas
201 Caroline, 11th Floor
23 Houston, Texas 77002
Telephone: (713) 368-6402
24 Expiration: 12/31/2014
25
DARLENE STEIN
Exhibit R App. 267
HAWASHMEADE
HAWASH MEADE GASTON NEESE & CICACK LLP
Samuel B. Haren
sharen@hmgllp.com
713-658-9001 (phone)
713-658-9011 (fax)
June 23, 2014
Via Email and
Facsimile {972) 267-5072
Mr. Nicholas Mosser
Mr. James Mosser
Mosser Law PLLC
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
ndmosser@mosserlaw.com
jmosser@mosserlaw.com
RE: Cause No. 2014-10896; Los Cucos Mexican Cafe VIII, Inc. et al v. 8650 Frisco, LLC et al; In the
133rd Judicial District Court of Harris County, Texas
Messrs. Mosser:
The Holtman documents are ready for production. They may be downloaded electronically from
the following .url:
https://www.dropbox.com/s/36g6hvq2xhr2ust/Combined.pdf
If you have any problems with the download, we can burn the documents to a CD and have it
delivered to your office. Please let me know which you would prefer.
In addition, the Court has ovenuled your objections to our Requests for Production 1, 2, 3, 4, 5,
7, and 8. Please provide amended responses and all responsive documents within ten days of this letter.
Cc: Kelly Stephens (Via Email)
2118 Smith Street I Houston, Texas 77002
Main Phone: (713) 658-9001 I Main Facsimile: (713) 658-9011
Exhibit 11
www. h m gil p.c om
Exhibit R App. 268
Sam Haren
From: Nancy Jacobs
Sent: Monday, June 23, 2014 5:50PM
To: 19722675072@rcfax.com
Cc: courtdocuments@mosserlaw.com; ndmosser@mosserlaw.com ; jmosser@mosserlaw.com;
Andrew Meade; kstephens@stephensdomnitz.com; Sam Haren;
courtdocuments@mosserlaw.com; ndmosser@mosserlaw.com; jmosser@mosserlaw.com;
Andrew Meade; kstephens@stephensdomnitz.com; Sam Haren
Attachments: 2014-06-23 Ltr to Mossers re Holtman documents.pdf
Exhibit R 1 Ohio App. 269
Sam Haren
From : Nancy Jacobs
Sent: Monday, June 23, 2014 5:52PM
To: Sam Haren
Subject: FW: Fax Message Transmission Result to +19722675072 -Sent
FYI
From: RingCentral [mailto:service@ringcentral.com]
Sent: Monday, June 23, 2014 5:53PM
To: Teresa Martinez; Nancy Jacobs
Subject: Fax Message Transmission Result to +19722675072 - Sent
Here are the results of the 1-page fax you sent from your phone number (713) 946-1 150- Ext. 2:
Name Phone Number Date and Time Result
19722675072@rcfax.com +19722675072 Monday, June 23, 2014 at 05:52PM Sent
Your fax(es) included the following file(s), which were rendered into fax format for transmission:
File Name Result
2014-06-23 Ltr to Mossers re Hollman documents.pdf Success
1
Exhibit R App. 270
From:Hicholas D. Mosser Sl72 267 5072 07/11/2014 10:29 #224 P. 001/001
Mo``SER LAw~ PLL~':;
17110 DALLAS PARKWAY, SUITE 290 • DALLAS, TEXAS 75248 • 972-733-3223 ·• FAX: 972-267-5072
MossERLA w.coM
July 11, 20··14
Via Facsin1iile: 832-476 ..5460
Kelly Stephe~ns
P.O. Box ~79734
Houston, Texas 77279
RE: Los Cucos VIII, Inc. Et al., v. 8650 Frisco Ll.C, et al.
Dear Mr. Ste~phens:
We were not served with any letter on June 20, 2014 n~questing dates to inspect the
restaurant at issue. If you believe this to be in error please provide· proof of service and
I will investi'gate the issue. Similarly, we have not been served with any "prior letter
requesting production" again if you believe this to be in error please identify the jocation
you believe you served the letters on and provide us with a proof of service.
In addition, it is unclear why you 'Nould like us to fax thH 7000 pages back to you that
you subpoe~naed from Mr. Holtman, or why you would l1ke to incur the expense in
requiring 1\~r. Verucchi to produce the same 7000 pages that Mr. Holtman purportedly
sent to hirn. If Mr. Verucchi indeed has any discoverable documents, Mr. Holtman has
already, though improperly, delivered them to your office. I disagree with your
contention that your subpoena commands production at Mr. Verucchi's office as the
notice contains no such similar indication and the addrHss for the notary is clearly in
Houston.
I will begin faxing the 7000 pages that Mr. Holtman served on you as you request in
your recent letter.
~LC
Exhibit R
Exhibit 13 Ohio App. 271
 RX REPOFT
``MolE
TEL
DATE 07/11/2014 10:34
JOB NO. TYPE __ __ l_`` _______!)E~ ~-IN_AT!_``-TE_L__I_I_D ______,__ ___ DI\ TE --
PAGE TH1E USE r·10DE RESULT
0712 RX 001 07/11 '10: 32 001 01 28
I G3 OK
97226/':;on
Exhibit R App. 272
MOSSER LAW PLLC
17110 DALLAS PARKWAY, SUITE 290 • DALLAS, TEXAS 75248 • 972-733-3223 • FAX: 972-267-5072
MOSSER LAW .COM
July 14, 2014
Via Facsimile: 832-476-5460
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
RE: Los Cucos VIII, Inc. Et al., v. 8650 Frisco LLC, et al.
Dear Mr. Stephens:
Enclosed are our supplemental Discovery Responses.
Respectfully, MOSSER LAW PLLC
/s/ Nicholas D. Mosser
Nicholas D. Mosser
Exhibit R
Exhibit 14 Ohio App. 273
 COURT COPY
STYLE OF CASE : LOS ClJCOS MEXICAN CAFE VIII, INC. , ET AL.
vs.
8650 FRISCO, LLC D/B/A EST/LO GAlJCHO
BRAZILIAN STEAXHOUSE, ET AL
CASE NO.: 2014-10896
PERTAIN TO: (Please refer to subpoena)
FROM: Holtman & Company, LLC
(Business Records)
DELIVER TO: Mr. Andrew K. Meade
Hawash Meade Gaston Neese & Clcack LLP
2118 Smith Street
Aoustoo, TX 77002
IN THE DlSTRlCT COURT OF
HARRIS COUNTY, TEXAS
133rd JUDICIAL DlSTRICl'
Taxable Costs~ \ I ( .loi)
Ordtr No. S091.00l
Exhibit R App. 274
Holtman000001
STYLE OF CASE;
LOS CUCOS MEXICAN CAFE VIII, INC., ET AL.
\1$,
8650 FRISCO, LLC D/B/A ESTILO GAUCHO
BRAZIUAN STEAKHOUSE, ET AL
CAUSE NO.: 2014-10896
RECORDS (Please refer to subpoena)
PERTAIN TO:
RECORDS FROM: Holtman & Company, LLC
(Business Records)
DELIVER TO: Andrew K. Meade I Nancy Jacobs
Hawash Meade Gaston Neese & Cicack LLP
2118 Smith Street
Houston, TX 77002
lN THE DISTRICT COURT OF
~SCOUNTY,TEXAS
133rd JUDICIAL DISTRICT
Order No. 5091.002
Exhibit R App. 275
Holtman000002
No. 2014-10896
LOS CUCOS MEXICAN CAFE VUI, lNC., ET AL. § IN THE DlSTRlCf COURT OF
§
§
vs. § HARRIS COUNTY, TEXAS
§.
8650 FRISCO, LLC DlBIA ESTTLO GAUCHO §
BRAZILIAN STEAKHOUSE, ET AL. § J33rd JUDJCJAL 01STR1Cf
NOTICE OF INTENTION
TO TAKE DEPOSITION BY WRITTEN QUESTIONS
To Defendants by and through their attorney of record: Nicholas Mosser
To other party/parties by and through tbeir attorney of record: Kelly D. Stephens
You will please take notice that on May 26. 2014 at I0:00 a.m. a deposition by written questions will be taken of the Custodian of
Records for:
Hollman & Company, LLC
876 Loop 337, Suite SOl, New Braunfels, TX 78130
before a Notary Public for Gulfstream Legal Group, LLC
1300 Texas St
Houston, TX. 77002
Ph: 113-237-4700 II Ftu:: 888-55.9-7431
or its designated agent, which deposition with anached questions may be used in evidence upon the trial of the above-styled and
numbered cause pending in the above-named court. Notice is further given that request is hereby made as authorized under Rule
200, Texas Rules of Civil Procedure, to the officer taking this deposition to issue a subpoena duces tecum and cause it to be
served on the witness to produce any and all records as described on the attached questions and/or Exhibit(s) and to tunt aU such
records over to the officer authorized to take this deposition so that photographic reproductions of the same may be made and
attached to said deposition.
Mr. Andt·ew K. Meade
State Bar No. 14032854
Mr. Jeremy M. Masten
State Bar No. 24083454
Hawash Mtade Gaston Neese & Cicack LLP
2118 Smith Sta•eet
Uouston, TX 77002
Ph: 713-658·9001// Fax: 713-658-9011
Attorneys for Plaintiffs, Los Cucos Mexican Cafe Vll1.lnc., et al.
J hereby cenif}' that a true and correct copy of the foregoing instrument has been forwarded to all Counsel of Record by hand-delivery,
facsimile, and/or certified mail (return receipt requested) on this day.
Do10d: "\I d \ \ t '\ s;gnodQ l ~ ``
Order No. 5091
Exhibit R App. 276
Holtman000003
DEPOSITION SUBPOENA TO TESTIFY OR PRODUCE DOCUMENTS OR TlfJNGS
THE STATE OF TEXAS
To any Sheriff or Constable of the State of Texas or other person authorized to serve subpoenas under Rule 176 of the Texas Rules of
Civil Procedure - GREETJNGS -
You are hereby commanded to subpoena and smnmon the Custodian of Records for:
Holtman & Company, LLC
876 Loop 337, Suite 501, New Braunfels, TX 78130
to be and appear before a Notary Public of my designation for Gulfstream Legal Group, LLC, 1300 Texas St., Houston, TX 77002
or its desjgnated agent on May 26. 2014 at 10:00 a.m~ at the office of the custodian, and there under oath to make answers of certain
written questions to be propounded to the witness and to bring and produce for inspe<:tion and photocopying
ANY AND ALL RECORDS (WHETHER TYPED, HANDWRITTEN OR COMPUTER-GENERATED).
PERTAINING TO 8650 FRISCO LLC, including but not limited to any type of financial records; attounting records;
bank statements; tax records (including 1099 forms, W-2 forms and K-1 forms); reports; teases; guaranties; records of
trademarks and other inteOectual property; office notes; correspondence; and printouts of any type of data stored in
eledtonic format, including any e--mail transmission(s)
then and there to give evidence and there remain from day to day and time to time until discharged according to law at the instance of
the Plaintiff, Los Cucos Mexican Cafe Vlll, Inc., et al., represented by Andrew Meade, Attorney of Record, in that certain Cause No.
2014-10896 pending on the docket of the District Court of the 133rd Judicial District of Harris County, Texas.
This Subpoena is issued under and by virtue of Rule 200 and Notice of Deposition Upon Written Questions on file with the above-
named court, styled
LOS CUCOS MEXICAN CAFE VIII, INC., ET AL. vs.
8650 FRISCO, LLC DfB/A ESTILO GAUCHO BRAZILIAN STEAKHOUSE, ET AL.
WITNESS MY HAND, this :2/51 day of April, 2014.
~'~jJ!t;;~ . MICHAEL R. MILLER
J``t\ Notary Publi~. ~wte of _re~as
I \.J../!~ . .:;1 My CommiSSIOn Explr~S
'lj.~.{.~!``) November 08, 2014
176.8 Enforcement of Subpoena. (a) ConJempt. Failure by any person without adequate excuse to obey a subpoena served upon that per.son may be
deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be
punished by nne or confinemem, or bot.h.
OFFICER'S RETURN
Came to hand this _ __ day of ·--' 20__, and executed this the ___ day of 20_ _ , in the
following manner: By delivering to the witness a true copy hereof.
Returned this ._ _ _ day of _ _ _ _ _ __ , 20__ .
Order No. 5091.002 PROCESS SERVER
Exhibit R App. 277
Holtman000004
No.1014-10896
LOSCUCOS.MEXICAN C~ VIII, INC., ET AL. § IN THE DISTRICT COURT OF
§
§
§ HARRIS COUJ',"ft, TEXAS
§
8650 FRJSCQ, LLC DIB/A ESTILO GAUCHO §
BRAZILk\N STEAKHQUSE, l:T AL. § J JJrd JUDICIAL OJSTRICT
DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS
Custodian of Records fur. Holtman & Company, LLC
Type ofRecords:
ANY AND ALL RECOJU)S (WBETIIE'R TYPED, HANDWRITTEN OR COMPU'J'ER-G.ENERATED) PER,TAINING
TO 8650 FRlSCO LLC, i~lu.(ling bqt not limited to any type of ftunciaJ records; accountiag records; bank stat!mtelifS~
tax records (incl•din& 1099 forms, W-1 forms and l<-i forms); reports; leases; guan•oms; records 7 E.Jn&"E/(
4. Have .YO!J accepted the subpoena duces tecum accompanying these direct questions?
Answer: V
, E \J'
5. Are these memoranda. reports, records, or data compilations outlined in the subpoena ducc:s 'tecum in your custody or subject
to your control, supervision or direction?
A~.-````--------------~----------~----------
6. Are you .able to identify th* aforementioneti records as the originals or true and correct copies of the or-iginalS?
Answer: _ _ Y ~v
.L.-_c;;;:....=---------------------------- -
Order No. 5091.002
Exhibit R App. 278
Holtmanooooos
' .
7. Please. bJllld to 1M Officer taking tbis deposition copies of the memoranda, reports, records. or data compilations .mentioned m
Question No. S. R.a,ve you t:Qmplied? rt oot, why?
Answer: \J
I
E.~
8. Are the copies which ~ ha"e handed to the Officer taking this deposition true and correct copies of s.uch ~emo~nda,
reports, ~:rds or d~ coinpilati®j
Answer. YE~
I
9. Were·such ~moranda, reports, rciCQrds; or data oompilations kept in the regular course of business of this (acUity?
Answer: '/'t\.~'.
d'- """'to
Answer~Ot?l
;c:;
lO. Was it in the regular course of business of this f\lcility for a person with knowledge of the acts, events, conditions, opinions or
0, e§'
mm ono ...,.., iofunnation l!>=>fto "' '"' ruled ;,such ""'
Before me, the undersigned authority, on this day ~ally appeared the Witness, known to me to be the perron whose
name is subscribed to the foregoing .instrument in the capacity therein stated, Who bem~ first d~1y sworn, stated upon his/her oath
that the answers to the foregping qUC$tions are trJ,ie and correct. I 1\lrtlwr certify 'that the records at!a9hed hereto are exact
duplicates of the original records.
SWOl~N'rO AND SUBSCRlBED before me this day.of _ _.Ol<-..:....>=+J'-7-----~· 20 I tf .
[k``~-
Elisa L van Dyke NOTARY PUBUC
Nolary Public, Slate of Texas
My Oor•wnlsslon Expires My Commission Expi~ _ _ _-,_._
/ _;-
_, ~/_1--'S,._____
July 21,2015
Q_rder No. 5091.001
Exhibit R App. 279
Holtman000006
Exhibit R App. 280
- .
17110 DALLAS PARKWAY, SUITE 290 • DALLAS, TEXAS 75.248 • 972-733-3223 •· FAX: 972-267-5072
MOSSER LA W.COM
.July 15, 2014
Via CMRRIR
Kelly Stephens
P.O. Box 7'9734
Houston, Texas 772179
RE: Los Cucos VIII, Inc. lEt al., v. 8G50 Frisco LLC., et al.
Dear Mr. Sjtephens:
As you are aware the only objections you put before the court related to our discovery
responses ·were (1) There is no "tax re~turn priviiE!ge." (2) Defendants' bank records are
discoverable and (3) Defendants' financial records are discoverablle.
Because these are the only three objections you placed before the Court, these are the
only objections that have been overrulled our rernaiining objections stand, unchallenged.
In addition, the correct procedure to require production of documents in a time specific
manner is to submit an or·der for th1e court to sign stating thE:! date of production and
what objections were overruled.
Enclosed are the responsive docurnents subject to our rernainin`` objections and any
documents in the possession of Verucchi responsive to your subpoena. Given that I
have indicated I was going to produce the same documents you currently have in your
possession, vvhich are r~esponsive tc your requests, please \Nithdraw your motions as
they are moot.
Exhibit R
Exhibit 15 Ohio App. 281
 I I IUI£oVI ......... VVt••hl r1w1
Chrrs Daniel • District Clerk
Harris County
Envelope No: 1848413
By: ARRIAGA, AMANDA R
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFE VIII,
INC.; LOS CUCOS MEXICAN
§
§
IN THE DISTRICT COURT ( Ide
CAFE IV, INC.; MANUEL §
CABRERA; and SERGIO § tiUDE'f
CABRERA, §
Plaintiffs §
§ <
~
v.
• •
§
§ HARRIS COUNTY, TEXA:~
I
f ~
8650 FRISCO, LLC D/B/A ESTILO § 1-.
X c !?.n ~
GAUCHO BRAZILIAN § .,
.,~ I Ul:T
... "1
"1-·~
STEAKHOUSE; MANDONA, LLC; §
,..
0 -·Ill
0
0 0') !l.o
GALOVELHO, LLC; BAHTCHE, § c c
or.``
LLC; CLAUDIO NUNES; and
:< ...
:I I'.) - :I
(I)-·
§ ':C _...
c:;l
DAVID JEIEL RODRIGUES, § .., "'"
-1
.,(I)
7':-
t:;
Defendants § 133rd JUDICIAL DISTRIC1 .
)(
ORDER GRANTING PLAINTIFFS' MOTION TO QUASH AND
DENYING DEFENDANTS' MOTION TO QUASH DEPOSITION SUBPOENA OF
MIKE VERUCCHI AND FOR A PROTECTIVE ORDER
On th1s day the Court came to consider Defendants' Motion to Quash Deposition
Subpoena of Mike Verucclu and for a Protective Order (the "Motion to Quas1"). After
I
considermg the facts, law, and argument of counsel, the Court has decided to DENY,the MotiOn
to Quash The Subpoena contained in Exhibit A to the Motion (the "Subpoena) i,s valid and
enforceable.
The Court further finds that Defendants filed the Mohon without adequately considering
~ the contents of Exhibit A thereto The Court further finds that Defendants refused to Withdraw
0
the Mohon once the relevant contents were pointed out. The Court further finds that the
Defendants have advanced frivolous arguments without basis m fact or law in support of the
MotiOn The Court further finds that this misconduct is part of a larger pattern <~,f improper
objections, motions to quash, and mvocations of privilege.
Exhibit R
Exhibit 16 Ohio App. 282
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Exhibit R App. 283
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 July 29. 2014
Certified Document Number: 61747433 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
Exhibit R App. 284
8/1/2014 4:17:07 PM
Chris Daniel - District Clerk Harris County
Envelope No. 2029151
By: Kenya Kossie
MOSSER LAW PLLC
LAWYERS
17110 DALLAS PARKWAY, SUITE 290 • DALLAS, TEXAS 75248 • 972-733-3223 • FAX: 972-267-5072
August 1, 2014
Via efile:
Kelly Stephens
P.O. Box 79734
Houston, Texas 79734
RE: Cause No. 2014-10896 Los Cucos Mexican Café VIII, Inc., et al v. 8650 Frisco,
LLC d/b/a Estilo Gaucho Brazilian Steakhouse, et al
Dear Mr. Stephens:
In an effort to comply with the Court Order, Defendant has attempted to serve
Plaintiffs’ attorney in charge, Kelly D. Stephens. It appears on two separate occasions as
though Mr. Stephens has disconnected his Fax Machine, as the number “1-832-476-5460"
rings continuously without answer.
Thank you for your attention to this matter.
Respectfully, MOSSER LAW PLLC LAWYERS
/s/ Nicholas D. Mosser
By: Nicholas D. Mosser
CERTIFICATE OF SERVICE
I certify that on August 1, 2014, a true and correct copy of this document was served to
the following pursuant to Texas Rules of Civil Procedure 21 & 21(a).
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
/s/ Nicholas D. Mosser
By: Nicholas D. Mosser
Exhibit R
Exhibit 18 Ohio App. 285
HAWASHMEADE
HAWASH MEADE GASTON NEESE & CICACK LLP
Samuel B. Haren
sharen@hmgllp.com
713-658-9001 (phone)
713-658-9011 (fax)
August 1, 2014
Via Email
Mr. James Mosser
Mosser Law PLLC
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
courtdocuments@mosserlaw.com
Re: Cause No. 2014-10896; Los Cucos Mexican Cafe VIII, Inc. et al v. 8650 Frisco, LLC et
al; In the 133rd Judicial District Court ofHanis County, Texas
Dear Mr. Mosser,
As you are aware, our fax number is 713-658-9011. The documents may also be produced via
FTP linlc or Dropbox. If you are unsure how to use an FTP link or Dropbox, we would be happy to
provide assistance.
:;;:?!. . . .
Samuel B. Haren
2118 Smith Street I Houston, Texas 77002
Main Phone: (713) 658-9001 1 Main Facsimile: (713) 658-9011
Exhibit R
Exhibit 19 Ohio App. 286
www.hmgllp.com
Sam Haren
From: Sam Haren
Sent: Friday, August 01, 2014 4:48 PM
To: 'courtdocuments@mosserlaw.com'
Subject: Los Cucos
Attachments: 2014-08-01 - Los Cucos - Letter to Mosser re Compliance.pdf
Counsel,
Please see the attached correspondence.
Sam Haren
Associate Attorney
2118 Smith Street | Houston, TX 77002
tel (713) 658-9008 | mobile (713) 855-0528
fax (713) 658-9011
website | vCard | map | email
This email may be a privileged communication. If you are not the intended recipient, please delete it.
1
Exhibit R App. 287
Settlement Statement8/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC
Page 1
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFE VIII, ) IN THE DISTRICT COURT
INC.; LOS CUCOS MEXICAN CAFE )
IV, INC.; MANUEL CABRERA; )
AND SERGIO CABRERA )
)
)
PLAINTIFFS, )
)
VS. ) HARRIS COUNTY, TEXAS
)
8650 FRISCO, LLC D/B/A )
ESTILO GAUCHO BRAZILIAN )
STEAKHOUSE; MANDONA, LLC; )
GALOVELHO, LLC; BAHTCHE, )
LLC; CLAUDIO NUNES; AND )
DAVID JEIEL RODRIGUES )
)
)
)
DEFENDANTS. ) 133RD JUDICIAL DISTRICT
)
***************************************************************
SETTLEMENT STATEMENT
AUGUST 5, 2014
***************************************************************
Gulfstream Legal Group 713-354-2339
Exhibit R
Exhibit 20 Ohio App. 288
e1ecd0a2-c6c9-4df4-8de0-cad05530ed25
Settlement Statement8/5/2014 Settlement Statement8/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC
Page 2 Page 4
1 APPEARANCES 1 what we are calling a standard bank-type documentation for
2 2 loans and that would include a note or promissory note, a deed
3 FOR THE PLAINTIFFS:
KELLY STEPHENS 3 of trust, appropriate UCC-1s to the extent plaintiffs determine
4 STEPHENS & DOMNITZ, PLLC 4 it's necessary in assignment of the lease and any assets
2000 BERING DRIVE, SUITE 700 5 related to the restaurant. The agreements would be with time
5 HOUSTON, TEXAS 77057
6 6 is of the essence. There would be no cure period for any
FOR THE PLAINTIFFS: 7 default. They will provide for a monthly wire transfer of the
7 DAVID KINDER 8 amounts due under the promissory note. And in connection with
COX SMITH
8 112 E. PECAN STREET, SUITE 1800
9 the restaurant at issue in this case there will be a $10 paid
SAN ANTONIO, TEXAS 78205 10 up license fee for the name of the restaurant that will be
9 11 limited to that location. There will be no personal guarantees
10 FOR THE DEFENDANTS:
JAMES C. MOSSER
12 by the defendants.
11 MOSSER LAW PLLC 13 MR. MOSSER: Correct. And we're going to
17110 DALLAS PKWY, SUITE 290 14 dismiss with prejudice the --
12 DALLAS, TEXAS 75248 15 MR. STEPHENS: The mutual releases.
972.267.5072 FAX
13 16 MR. MOSSER: -- pending lawsuit, releases, dah,
14 17 dah, dah, dah.
15 18 MR. STEPHENS: Within, say, ten day of
16
17 19 execution.
18 20 MR. MOSSER: And dah, dah, dah is spelled D-A-H,
19 21 D-A-H, D-A-H.
20
21 22 That sounds like our deal.
22 23 (End of proceedings.)
23 24
24
25 25
Gulfstream Legal Group 713-354-2339 Gulfstream Legal Group 713-354-2339
Settlement Statement8/5/2014 Settlement Statement8/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC
Page 3 Page 5
1 MR. STEPHENS: Okay. We're here to enter into a 1 REPORTER'S CERTIFICATION
2 Rule 11 Agreement and dictate the terms of the settlement SETTLEMENT STATEMENT
2 AUGUST 5, 2014
3 agreement for this lawsuit. And the money terms are that 8650
3
4 Frisco will pay to -- we didn't determine it specifically, but 4 I, Marisol Ramos, Certified Shorthand Reporter in and for
5 I'll say Cabrera Brothers II. 5 the State of Texas, hereby certify that the foregoing is a
6 MR. MOSSER: That's the LP? 6 correct transcription of the proceedings in the above-entitled
7 MR. STEPHENS: Right.
7 matter.
8 I further certify that I am neither counsel for, related
8 MR. MOSSER: Cabrera Brothers II, LP I think is 9 to, nor employed by any of the parties to the action in which
9 the right name. 10 this hearing was taken, and further that I am not financially
10 MR. STEPHENS: That's correct. 11 or otherwise interested in the outcome of the action.
11 MR. MOSSER: And it's 8650 --
12 Certified to by me this ____ of ____________, 2014.
13
12 MR. STEPHENS: Frisco, LLC. 14
13 MR. MOSSER: -- Frisco, LLC is the payor. 15 ______________________________
14 MR. STEPHENS: Will pay the amount of $900,000 Marisol Ramos
15 with a $60,000 payment due upon completion of the paperwork.
16 Texas CSR No. 8140
Expiration Date: 12/31/14
16 MR. MOSSER: Sure. 17 Firm Registration No. 245
17 MR. STEPHENS: Okay. At execution of the final Gulfstream Court Reporting
18 paperwork and remainder of $840,000 payable over five years at 18 1300 Texas Avenue
19 6.7 percent interest. And I guess we'll do the first payment Houston, Texas 77002
19 713.354.2339
20 due -- today is the 4th, so October 1st. 713.237.8742 Fax
21 MR. MOSSER: Yeah, that's fine. Is that all 20
22 right with you guys? Everybody agrees with that. 21
22
23 MR. KINDER: David Kinder for the plaintiffs to
23
24 further evidence the payment of the amounts due and to document 24
25 the loan transaction the defendants will agree to enter into 25
Gulfstream Legal Group 713-354-2339 Gulfstream Legal Group 713-354-2339
2 (Pages 2 to 5)
Exhibit R App. 289
e1ecd0a2-c6c9-4df4-8de0-cad05530ed25
Settlement Statement8/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC
Page 6
A D frisco 1:7 3:4,12,13 M 5:6
aboveentitled 5:6 d 1:7 further 3:24 5:8,10 mandona 1:8 promissory 4:2,8
action 5:9,11 dah 4:16,17,17,17 manuel 1:3 provide 4:7
G
agree 3:25 4:20,20,20,20,21 marisol 5:4,15
galovelho 1:8 Q
agreement 3:2,3 4:21 matter 5:7
agreements 4:5 dallas 2:11,12 gaucho 1:7 mexican 1:2,2
going 4:13 R
agrees 3:22 date 5:16 money 3:3 r 2:1
amount 3:14 david 1:9 2:7 3:23 guarantees 4:11 monthly 4:7
guess 3:19 ramos 5:4,15
amounts 3:24 4:8 day 4:18 mosser 2:10,11 3:6 registration 5:17
antonio 2:8 deal 4:22 gulfstream 5:17 3:8,11,13,16,21
guys 3:22 related 4:5 5:8
appropriate 4:3 deed 4:2 4:13,16,20 releases 4:15,16
assets 4:4 default 4:7 H mutual 4:15 remainder 3:18
assignment 4:4 defendants 1:11 harris 1:6 reporter 5:4
august 1:15 5:2 2:10 3:25 4:12 N
hearing 5:10 n 2:1 reporters 5:1
avenue 5:18 determine 3:4 4:3 houston 2:5 5:18 reporting 5:17
dictate 3:2 name 3:9 4:10
B necessary 4:4 restaurant 4:5,9,10
didnt 3:4 I right 3:7,9,22
b 1:7 dismiss 4:14 ii 3:5,8 neither 5:8
bahtche 1:8 note 4:2,2,8 rodrigues 1:9
district 1:2,11 ill 3:5 rule 3:2
banktype 4:1 document 3:24 include 4:2 nunes 1:9
bering 2:4 documentation 4:1 interest 3:19 S
brazilian 1:7 domnitz 2:4 O
interested 5:11 october 3:20 s 2:1
brothers 3:5,8 drive 2:4 issue 4:9 san 2:8
due 3:15,20,24 4:8 okay 3:1,17
C iv 1:3 outcome 5:11 sergio 1:3
c 2:1,10 settlement 1:14 3:2
E J
cabrera 1:3,3 3:5,8 P 5:1
e 2:1,1,8 james 2:10 shorthand 5:4
cafe 1:2,2 employed 5:9 p 2:1,1
jeiel 1:9 paid 4:9 smith 2:7
calling 4:1 enter 3:1,25 judicial 1:11
case 4:9 essence 4:6 paperwork 3:15,18 sounds 4:22
cause 1:1 parties 5:9 specifically 3:4
estilo 1:7 K spelled 4:20
certification 5:1 everybody 3:22 kelly 2:3 pay 3:4,14
standard 4:1
certified 5:4,12 evidence 3:24 kinder 2:7 3:23,23 payable 3:18 state 5:5
certify 5:5,8 execution 3:17 4:19 payment 3:15,19
claudio 1:9 L 3:24 statement 1:14 5:1
expiration 5:16 steakhouse 1:8
completion 3:15 extent 4:3 law 2:11 payor 3:13
connection 4:8 pecan 2:8 stephens 2:3,4 3:1
lawsuit 3:3 4:16
correct 3:10 4:13 F pending 4:16 3:7,10,12,14,17
lease 4:4
5:6 fax 2:12 5:19 percent 3:19 4:15,18
license 4:10
counsel 5:8 fee 4:10 period 4:6 street 2:8
limited 4:11
suite 2:4,8,11
county 1:6 final 3:17 llc 1:7,8,8,9 3:12,13 personal 4:11
court 1:2 5:17 financially 5:10 pkwy 2:11 sure 3:16
loan 3:25
cox 2:7 fine 3:21 loans 4:2 plaintiffs 1:5 2:3,6
T
csr 5:16 firm 5:17 location 4:11 3:23 4:3
pllc 2:4,11 taken 5:10
cucos 1:2,2 first 3:19 los 1:2,2 ten 4:18
cure 4:6 five 3:18 lp 3:6,8 prejudice 4:14
proceedings 4:23 terms 3:2,3
foregoing 5:5
Gulfstream Legal Group 713-354-2339
Exhibit R App. 290
Settlement Statement8/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC
Page 7
texas 1:6 2:5,8,12 2339 5:19
5:5,16,18,18 237 5:19
thats 3:6,10,21 245 5:17
think 3:8 267 2:12
time 4:5 290 2:11
today 3:20
transaction 3:25 3
transcription 5:6 31 5:16
transfer 4:7 354 5:19
trust 4:3
4
U 4th 3:20
ucc1s 4:3
5
V 5 1:15 5:2
viii 1:2 5072 2:12
vs 1:6
6
W 6 3:19
wire 4:7 60 3:15
X 7
7 3:19
Y 700 2:4
yeah 3:21 713 5:19,19
years 3:18 75248 2:12
77002 5:18
Z 77057 2:5
78205 2:8
0
000 3:14,15,18 8
8140 5:16
1 840 3:18
10 4:9 8650 1:7 3:3,11
11 3:2 8742 5:19
112 2:8
12 5:16 9
1300 5:18 900 3:14
133rd 1:11 972 2:12
14 5:16
17110 2:11
1800 2:8
1st 3:20
2
2000 2:4
2014 1:15 5:2,12
201410896 1:1
Gulfstream Legal Group 713-354-2339
Exhibit R App. 291
Jabary v. City of Allen, Not Reported in S.W.3d (2013)
result in the appeal being dismissed without further notice.
See id. 37.3(b). Appellant responded by filing a “notice of
2013 WL 1803739
clerk's refusal of payment” and “motion to require clerk to file
Only the Westlaw citation is currently available.
clerk's record.” He asserts in both that by letter dated February
SEE TX R RAP RULE 47.2 FOR 5, 2013, the district clerk informed him that the “breakdown
DESIGNATION AND SIGNING OF OPINIONS. of the costs” for the clerk's record was as follows:
MEMORANDUM OPINION Clerk's Record: 8517 pages @ $1.50 per page totaling:
Court of Appeals of Texas, $12.775.90
Dallas.
Paper copy of Record: 8517 pages @ $.25 per page
Mike JABARY, Appellant totaling: $2.129.25
v.
And/or CD copy of Record: $20.00.
CITY OF ALLEN and Peter Smith,
Esq., City Attorney, Appellees. Construing the letter to mean he could choose from any of
the three “formats,” appellant requested a “CD copy” of the
No. 05–12–01332–CV. | April 29, 2013. record and tendered a check to the clerk on March 12, 2013
in the amount of $20. The district clerk, however, returned
On Appeal from the 219th Judicial District Court, Collin
the check to appellant, explaining in a letter dated March 14,
County, Texas, Trial Court Cause No. 219–827–2011. Scott
2013 that “if the Clerk's Record is not paid for and prepared
Becker, Judge.
for filing with the Fifth Court of Appeals, there is no CD copy
Attorneys and Law Firms available to produce.” Appellant contends the clerk cannot
“chang[e her] mind on what [she] want[s] to charge” for the
Las Mosser, James C. Mosser, Mosser Law, PLLC, Dallas, record and “should be held to [her] agreement.” Appellant
TX, for Mike Jabary. requests we order the clerk to “deliver the record on appeal to
this Court's Clerk for filing and award [appellant] attorney's
Victoria Thomas, Nichols, Jackson, Dillard, Hager, and fees.” Appellees respond, asserting the clerk's letter setting
Smith, Dallas, TX, for City of Allen and Peter Smith, Esq., forth the schedule of costs “plainly state [s] ... there is but one
City Attorney. way to have the ‘Clerk's Record’ filed ... -by paying the $1.50
per page fee.”
Before Justices MOSELEY, Bridges, and LANG–MIERS.
Opinion Texas Rule of Appellate Procedure 35.3(a) provides that the
clerk “is responsible for preparing, certifying, and timely
filing the clerk's record if: ... (2) the party responsible for
MEMORANDUM OPINION
paying for the preparation of the clerk's record has paid the
Opinion by Justice LANG–MIERS. clerk's fee, has made satisfactory arrangements with the clerk
to pay the fee, or is entitled to appeal without paying the fee.”
*1 This appeal has been pending since September 28, 2012. See Tex.R.App. P. 35.3(a). Pursuant to Texas Supreme Court
On November 29, 2012, the district court clerk informed the order and our local rules, the clerk may file either a paper
Court that the clerk's record, which was overdue, had not been record or an electronic record submitted to the Texas Appeals
filed because payment had not yet been received. See TEX. R. Management and E-filing System web portal. See id. app. C;
APP. P. 35.1, 35 .3(a). On March 6, 2013, after the trial court 5th Tex.App. (Dallas) Loc. R. 11.2(9).
sustained two contests to appellant's affidavit of inability
to pay appellate costs, we ordered appellant to pay, within Although appellant argues the clerk's schedule of costs
ten days of the date of the order, the trial court clerk's fee reflects he could choose to have a CD copy of the record filed,
for preparation of the record. See Uranga v. Tex. Workforce the supreme court order and our local rules do not allow for
Comm'n, 319 S.W.3d 787, 791 (Tex.App.-El Paso 2010, no the record to be filed in that format. See Tex.R.App. P. app.
pet.) (appellant bears burden of bringing forward appellate C; 5th Tex.App. (Dallas) Loc. R. 11.2(9). Additionally, any
record). We cautioned appellant that failure to comply would confusion that may have been created by the clerk's February
Exhibit 21
Exhibit ©R2014 Thomson Reuters. No claim to original U.S. Government Works. App. 292 1
Jabary v. City of Allen, Not Reported in S.W.3d (2013)
5th letter was clarified by the clerk when she stated in her
*2 We DENY appellant's motion to order the clerk to file
second letter to appellant that the $20 would secure a CD copy
the CD copy of the record and for attorney's fees. Because
of the record once the record had been “paid for and prepared
the record has not been filed as a result of appellant's
for filing.” Appellant has had more than a month since then
failure to pay for the record, and appellant has been given a
to pay or make arrangements to pay the required fee but has
reasonable opportunity to pay or make arrangements to pay,
failed to do so, and nothing in either his “notice of clerk's
we DISMISS the appeal. See id. 37.3(b).
refusal of payment” or “motion to require clerk to file clerk's
record” reflects his intent to do so.
End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.
Exhibit ©R2014 Thomson Reuters. No claim to original U.S. Government Works. App. 293 2
In re Pendragon Transp. LLC, 423 S.W.3d 537 (2014)
a special master for the purpose of attending depositions in
this case to make rulings on any objections, assertions of
423 S.W.3d 537
privilege, and instructions not to answer questions. In its
Court of Appeals of Texas,
order, the court required Pendragon to pay the special master's
Dallas.
fees in advance of each deposition, subject to reallocation
In re: PENDRAGON later. Pendragon asserts both actions were an abuse of
TRANSPORTATION LLC, Relator. discretion. We conclude Pendragon has waived its complaint
about the appointment of the special master due to its delay in
No. 05–13–01749–CV. | Feb. 21, 2014. filing its petition for writ of mandamus. We further conclude
the trial court abused its discretion in ordering Pendragon
Synopsis to pay the special master's fees up front. Accordingly, we
Background: Plaintiff filed written objection to sua sponte conditionally *539 grant the writ of mandamus in part and
order appointing special master to attend depositions deny it in part.
related to plaintiff's action alleging various causes of
action against defendants, including breach of contract and Pendragon sued six defendants for various causes of action,
misappropriation of trade secrets. The 193rd Judicial District including breach of contract and misappropriation of trade
Court, Dallas County, Carl Ginsberg, J., denied objection. secrets. In April 2013, after the deposition of Pendragon's
Plaintiff filed petition for writ of mandamus. corporate representative, Nicholas Massey, defendant Black
Bull Towing LLC filed a “motion to compel answers at
deposition.” Black Bull asserted that at the deposition,
Holdings: The Court of Appeals, Brown, J., held that: Pendragon's attorney instructed Massey not to answer basic
questions as well as questions about a non-compete clause,
[1] plaintiff waived argument for review that trial court which is the basis for Pendragon's lawsuit, and questions
abused its discretion in appointing special master, but about any documents Massey brought to the deposition. Black
Bull sought an order requiring Massey to answer the questions
[2] order requiring plaintiff to pay special master's fees in asked in the deposition. It is not clear whether the court ruled
advance was abuse of discretion for which there was no on this motion, but at some point, due to “the inability of
adequate appellate remedy. Counsel to cooperate on basic matters,” the court ordered
depositions to take place at the courthouse so the court would
be available to rule on objections.
Writ conditionally granted in part and denied in part.
On June 12, 2013, defendant Victor Huhem took Massey's
deposition, both in his corporate capacity and in his individual
Attorneys and Law Firms capacity. The deposition took place in the court's jury room.
At the start of the deposition of Massey in his corporate
*538 James C. Mosser, Alexis F. Steinberg, Mosser Law,
capacity, Pendragon's attorney indicated Massey would not
PLLC, Dallas, for Relator.
return in the afternoon to participate in a deposition in his
Victor Huhem, Huhem Law Firm, PLLC, Fort Worth, for individual capacity because the subpoena was invalid. Stating
Appellee. that it would be a complete waste of time to have Massey
come back another time, the court ruled that Massey would
Before Justices MOSELEY, FILLMORE, and BROWN. be deposed in both capacities.
Opinion
Throughout the depositions, Pendragon's attorney frequently
objected and sometimes instructed Massey not to answer
OPINION questions on grounds they were irrelevant and “beyond the
scope of discovery.” On numerous times the trial court
Opinion by Justice BROWN. overruled Pendragon's objections and also ruled that certain
areas of inquiry were discoverable and instructed Massey to
Relator Pendragon Transportation LLC filed this mandamus
answer.
proceeding after the trial court signed an order appointing
Exhibit 22
Exhibit ©R2014 Thomson Reuters. No claim to original U.S. Government Works. App. 294 1
In re Pendragon Transp. LLC, 423 S.W.3d 537 (2014)
(Tex.1993) (orig. proceeding). Although mandamus is not
On that same day, June 12, 2013, the trial court sua sponte an equitable remedy, its issuance is largely controlled by
appointed a special master for the limited purpose of attending equitable principles. Id. One such principle is that “equity aids
future depositions to make “rulings on objections, assertions the diligent and not those who slumber on their rights.” Id.
of privilege, and instructions not to answer questions.” In its Thus, delaying the filing of a petition for mandamus relief
order, which set out many of the facts recounted above, the may waive the right to mandamus unless the relator can justify
court stated that Pendragon's counsel did not have legitimate the delay. In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 676
grounds for instructing the witness not to answer questions. (Tex.2009) (orig. proceeding).
The court also indicated the attorney's “form” objections were
“wholly without merit.” The court stated that it was apparent [5] [6] Pendragon filed its petition for writ of mandamus
Pendragon's counsel was “improperly trying to limit the flow more than six months after the trial court appointed the special
of information at the deposition.” The court further stated that master. It waited over two months to ask the trial court
“it appears manifest that all depositions in this case must be to reconsider its order appointing the master and, after the
attended by a judicial officer who can make rulings at the trial court upheld its order, still waited another three-and-a-
depositions, or else the depositions will simply decay into half months to file its petition with this Court. Significantly,
chaos and not be able to proceed.” The trial judge stated he Pendragon filed its petition less than two weeks before trial, a
could not be physically present at every deposition in this fact it omitted in its request for mandamus relief. It has offered
case. The court found that this was an exceptional case and no justification for its delay. Under these circumstances,
that good cause existed to appoint a special master to attend we conclude Pendragon's delay bars its right to complain
the depositions. of the master's appointment. See Rivercenter, 858 S.W.2d
at 367 (mandamus relief denied where relator waited over
On August 20, 2013, Pendragon filed a written objection four months to seek mandamus without justification); Int'l
to the appointment of the master. At a hearing on the Awards, Inc. v. Medina, 900 S.W.2d 934, 936 (Tex.App.-
objection on September 18, 2013, the trial court denied the Amarillo 1995, orig. proceeding) (delay of four months and
objection. On December 27, 2013, just eleven days before until eve of trial was ample grounds for denying mandamus
trial, Pendragon filed its petition for writ of mandamus in this relief); Bailey v. Baker, 696 S.W.2d 255, 256 (Tex.App.-
Court. (The trial has since been rescheduled for the end of Houston [14th Dist.] 1985, orig. proceeding) (denying leave
May 2014.) to file petition for writ of mandamus where there was almost
four-month delay, no explanation for delay, and relator waited
[1] In its petition for writ of mandamus, Pendragon two weeks prior to trial). 1
challenges the trial court's appointment of a special master.
The appointment of special masters is governed by *540 *541 Pendragon also challenges that portion of the trial
rule 171 of the Texas Rules of Civil Procedure. Rule 171 court's order requiring it to pay the master's fees before they
provides that the court may, in exceptional cases, for good accrued. The court's order states the following regarding the
cause appoint a master in chancery who shall perform all the master's fees:
duties required of him by the court. TEX.R. CIV. P. 171.
A trial court abuses its discretion when it appoints a master The Master in Chancery's reasonable
without the parties' consent or without finding that the case and necessary fees (not to exceed the
is exceptional and good cause exists for the appointment. rate of $225.00 per hour) shall be
Simpson v. Canales, 806 S.W.2d 802, 811 (Tex.1991) (orig. taxed as costs of court. As an initial
proceeding). Pendragon asserts that this is not an exceptional matter, Plaintiff shall be responsible
case and that there is not good cause for appointing a master. for paying the Master in Chancery's
fees as they are incurred (payable in
[2] [3] [4] A writ of mandamus issues to correct a clear the form of retainers in an amount of
abuse of discretion when no adequate remedy by appeal no less than $1,000.00, at least 3 days
exists. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.1992) in advance before each deposition),
(orig. proceeding). Mandamus is an extraordinary remedy, subject to reallocation at a later date,
not issued as a matter of right, but at the discretion of the depending on, inter alia, who is the
court. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 prevailing party in the suit.
Exhibit ©R2014 Thomson Reuters. No claim to original U.S. Government Works. App. 295 2
In re Pendragon Transp. LLC, 423 S.W.3d 537 (2014)
master's fees have actually accrued is an abuse of discretion
[7] [8] [9] The only basis for requiring a party to give because it improperly requires a party to post security for
security for costs before final judgment is Texas Rule of anticipated costs before final judgment in violation of rule
Civil Procedure 143. TransAmerican Natural Gas Corp. v. 143. TransAmerican, 877 S.W.2d at 844. Here, we conclude
Mancias, 877 S.W.2d 840, 844 (Tex.App.-Corpus Christi the trial court's order requiring the master's fees to be paid in
1994, orig. proceeding [leave denied] ). Rule 143 provides advance was a clear abuse of discretion for which there is no
adequate remedy by appeal. See id. Because the trial court's
that a party seeking affirmative relief may be ruled to give
order regarding fees was clearly in direct contravention of the
security for costs at any time before final judgment, upon
rules of civil procedure, Pendragon's delay in filing its petition
motion of any party, or any officer of the court interested in
does not bar its right to relief on this issue.
the costs accruing in such suit, or by the court upon its own
motion. TEX.R. CIV. P. 143. Rule 143 does not authorize the
In accordance with this opinion, we conditionally grant
court to fix bond in a specific amount; it must be open-ended.
Pendragon's writ of mandamus in part. A writ will issue only
Dilmore v. Russell, 519 S.W.2d 278, 279 (Tex.Civ.App.-
in the event the trial court fails to vacate the portion of its
Dallas 1975, no writ); Mosher v. Tunnell, 400 S.W.2d 402,
June 12, 2013 order requiring Pendragon to pay the special
404 (Tex.Civ.App.-Houston 1966, writ ref'd n.r.e.); see also
master's fees before they accrue. We deny Pendragon's writ
TEX.R. CIV. P. 146 (court can also require deposit for court
of mandamus in all other respects.
costs but only in amount sufficient to pay accrued costs).
Requiring a party to pay for a master's services before the
Footnotes
1 Because we have determined that Pendragon may not complain about the appointment of the special master, we do not reach the
issue of whether it was proper for the trial court to appoint a special master to attend and rule on objections during depositions. We do
note, however, the “exceptional case” standard for appointment of a special master is an extremely high one. See, e.g., Simpson, 806
S.W.2d at 812 (toxic tort action against eighteen defendants, several cross-actions, and eight discovery motions requiring hearings in
first ten months was not an exceptional case and thus, no good cause existed for appointing special master to oversee discovery); In re
Behringer Harvard TIC Mgmt. Servs. LP, 316 S.W.3d 831, 831 (Tex.App.-Dallas 2010, orig. proceeding) (court abused its discretion
in appointing master to conduct in camera review of certain documents because of trial schedule and complexities of discovery in
case); Owens–Corning Fiberglas Corp. v. Caldwell, 830 S.W.2d 622, 626–27 (Tex.App.-Houston [1st Dist.] 1991, orig. proceeding)
(case involving five defendants, seven requests for production, one set of interrogatories served on all defendants, and two motions
to compel requiring two hearings was not exceptional).
End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.
Exhibit ©R2014 Thomson Reuters. No claim to original U.S. Government Works. App. 296 3
ACCEPTED
225EFJ017428920
FIFTH COURT OF APPEALS
DALLAS, TEXAS
13 April 12 P3:25
Lisa Matz
NO. 05-12-01332-CV CLERK
MIKE JABARY, § IN THE FIFTH DISTRICT
Appellant, §
FILED IN
§ 5th COURT OF APPEALS
V. § COURT OF APPEALSDALLAS, TEXAS
§ 4/12/2013 3:25:39 PM
§ LISA MATZ
CITY OF ALLEN, et. al. § Clerk
§
Appellees. § DALLAS, TEXAS
MOTION TO REQUIRE CLERK TO FILE CLERK’S RECORD
On March 12, 2013, Appellant paid the necessary Clerks fees for the Clerk’s Record
in the above styled case pursuant to the letter from the Collin County District Clerk’s office
dated February 5, 2013. Exhibit A. The Clerk’s letter clearly stated the costs would be the
following:
Clerk's Record: 8517 pages @$1.50 per page totalling:
$12,775.90.0
Paper copy of Record: 8517 pages @ $.25 per page totalling:
$2129.25
And/or CD copy of Record: $20.00.
Exhibit A.
Clearly then there are three methods of receiving the Clerks Record, the first, the
second, and/or the CD copy of Record. It is clear that in Texas “(a) Words and phrases
shall be read in context and construed according to the rules of grammar and common
usage.” V.T.C.A., Government Code § 311.011, at least as it relates to the code
construction act. But, should Jabary be punished because of the District Clerk’s lack of
understanding and poor use of English grammar? The use of the ambiguous phrase
“and/or” has been “frequently condemned as improper and confusing,” and at least one
court has construed the phrase against the drafter.” See Newlon v. Newlon, 310 Ky. 737,
Exhibit R
Exhibit 23 Ohio App. 297
220 S.W.2d 961, 963 (Ky.1949). This court should construe the document against the
drafter, the District Clerk.
The District Clerk used the hated “and/or” language. Drafting experts are against the
use of the term. See Bryan A. Garner, Legal Writing in Plain English: A Text with
Exercises 112-13 (2000). 11 Tex. Rev. Ent. & Sports L. 205, 211 -212 (Spring 2010).
Appellant using the plain English meaning of the phrase “and/or” requested the third
method of receiving the Clerks Record, and submitted a check in the amount of $20.00 to
the Clerks Office. Proof of payment is indicated in Exhibit B. As the Texas courts have
observed, a simple review of grammar indicates that the disjunctive “or” introduces an
alternative. Dorn v. Best, 1855 WL 4971, 2 (Tex. 1855). Utilizing the disjunctive form
Jabary had a choice between the methods of receiving the clerks record. Heritage on San
Gabriel Homeowners Ass'n v. Texas Com'n on Environmental Quality, 2012 WL
6761531, 6 (Tex.App.–Austin,2012); Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578,
581 (Tex.2000).
The words “‘and’ and ‘or,’ are in no sense interchangeable terms” In re Brookshire
Grocery Co., 250 S.W.3d 66 (Tex. 2008). The District Clerk should not be able to destroy
Jabary’s right to appeal by changing their mind on what they want to charge for a record.
The District Clerk of Collin County refused the check and returned it to Appellant’s
Counsel’s office. Exhibit C. Because of the District Clerk’s office, deciding she would not
provide the record on CD, Jabary’s case is now threatened. The District Clerk should be
held to their agreement, and the letter requesting payment for the Record with three
alternative choices, wherein Jabary chose the third option. Jabary chose the option,
accepted the offer by the District Clerk and tendered payment as requested by the Collin
Exhibit R App. 298
County District Clerk. Jabary has made the requisite effort to retrieve the District Clerk’s
Record, the District Clerk refuses to produce the appellate record to this tribunal.
Prayer
Jabary asks this court to order the Collin County District Clerk to immediately deliver
the record on appeal to this Court’s Clerk for filing and award attorney’s fees to Mr. Jabary
in the amount of $2,500.
Respectfully Submitted, MOSSER LAW PLLC LAWYERS
/s/ James C. Mosser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
Telephone: (972) 733-3223
Facsimile: (972) 267-5072
Lawyers for Plaintiff, Mike Jabary.
CERTIFICATE OF SERVICE
I certify that on April 12, 2013 a true and correct copy of the foregoing was served by
facsimile transmission on pursuant to Texas Rules of Civil Procedure 21 & 21a to the
following:
Victoria Thomas
City Attorney - City of Allen
500 N. Akard Street
Dallas, Texas 75201
Facsimile: 214-965-0010
/s/ Nicholas D. Mosser
Nicholas D. Mosser
Exhibit R App. 299
ACCEPTED
225EFJ017580892
FIFTH COURT OF APPEALS
DALLAS, TEXAS
13 July 5 P3:55
Lisa Matz
CLERK
FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
No.________________________ 7/5/2013 3:55:00 PM
LISA MATZ
Clerk
IN THE
IN THE FIFTH JUDICIAL DISTRICT COURT OF APPEALS
at DALLAS, TEXAS
IN RE MOSSER LAW PLLC, and
James C. Mosser
Relator
ORIGINAL PROCEEDING FROM THE 160th JUDICIAL DISTRICT COURT OF
DALLAS COUNTY, TEXAS
PETITION FOR WRIT OF MANDAMUS and WRIT OF PROHIBITION
MOSSER LAW PLLC
James C. Mosser
Texas Bar No. 00789784
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
Telephone 972-733-3223
Facsimile 972-267-5072
LAWYER FOR RELATOR
ORAL ARGUMENT REQUESTED
Exhibit R
Exhibit 24 Ohio App. 300
 IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties, as well as the names and addresses of all
counsel:
MOSSER LAW PLLC RELATORS
and James C. Mosser
James C. Mosser Lawyer for Relators
Texas Bar No. 00789784
17110 Dallas Psarkway, Suite 290
Dallas, Texas 75248
Telephone 972-733-3223
Facsimile 972-267-5072
Paul A. Hoffman, Esq. Attorney for Real Parties in Interest
5400 LBJ Freeway, Ste. 1200
Dallas, Texas 75240
Facsimile: 972-380-2620
Jones and Mauldin Real Parties in Interest
Real Estate Partnership, LTD.
Hon. Sheryl Day McFarlin RESPONDENT
Associate Judge of the 160th District Court
George L. Allen, Sr. Courts Bldg.
600 Commerce St., Box 740
Dallas, Texas 75202
i
Exhibit R App. 301
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Issue Number One: The 160th District Court does not have personal jurisdiction
over MOSSER LAW PLLC and or James C. Mosser, or subject matter
jurisdiction related to the client file.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
The ORDER RE JUNE 28, 2013 HEARING, related to MOSSER LAW PLLC and
or James C. Mosser, is void ab initio.. . . . . . . . . . . . . . . . . . . . . . . . . . . ix
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
PRAYER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
VERIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
RECORD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ii
Exhibit R App. 302
INDEX OF AUTHORITIES
CASES
Bolden v. Greenpoint Mortgage Funding, Inc., No. 3:04-CV-0379-P, 2004 U.S. Dist.
LEXIS 20508, at *14 (N.D. Tex., Oct. 13, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Browning v. Placke, 698 S.W.2d 362, 363, 29 Tex. Sup. Ct. J. 33 (Tex. 1985).. . . . . 4
Casey v. March 1867 WL 4579, 2 (Tex.) (Tex. 1867). . . . . . . . . . . . . . . . . . . . . . . . . 5
City of Tyler v. Beck, 196 S.W.3d 784, 787 (Tex. 2006).. . . . . . . . . . . . . . . . . . . . . . . 3
Cotton v. Cotton, 57 S.W.3d 506, 511 (Tex. App.--Waco 2001, no pet.). . . . . . . . . . . 4
Del Peterson, D.D. Associates, Inc. v. Stromberger 2005 WL
2363059,(Tex.App.-Dallas,2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dinyes v. Dinyes, 2001 Tex. App. LEXIS 2303 (Tex. App. 2001). . . . . . . . . . . . . . . . . 4
Gray v. PHI Resources, Ltd., 710 S.W.2d 566, 567 (Tex. 1986). . . . . . . . . . . . . . . . . 3
Griffith v. Geffen & Jacobsen, P.C., 693 S.W.2d 724, 728 (Tex. App. - Dallas 1985, no
writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Hong Kong Dev., Inc. v. Nguyen, No. 01-04-00586-CV, 229 S.W .3d 415, 2007 Tex.
App. LEXIS 4494, 2007 WL 1633360, at *13 (Tex. App.--Houston [1st Dist.] June 7,
2007, no pet. h.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
In re Ashton 266 S.W.3d 602 (Tex.App.–Dallas,2008). . . . . . . . . . . . . . . . . . . . . . . . . 4
In re Dana Corp., 138 S.W.3d 298, 301 (Tex.2004) .. . . . . . . . . . . . . . . . . . . . . . . . . . 6
In re Does 1-10, 242 S.W.3d 805, 819 (Tex. App.—Texarkana 2007, no pet.). . . . . . . 6
In re Mask, 198 S.W.3d 231, 234 (Tex. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 4
iii
Exhibit R App. 303
In re Mosser Mallers PLLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6
In re Sw. Bell Tel. Co.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985). . . . . . . . . . . 3
Klein v. Hernandez, 2007 Tex. App. LEXIS 6284 (Tex. App. 2007). . . . . . . . . . . . . . . 5
Nolan v. Foreman, 665 F.2d 738, 743 (5 th cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . 5
Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S. Ct. 404, 98 L. Ed.
2d 415 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Primrose Operating Co., Inc. v. Jones, 102 S.W.3d 188, 193 (Tex.App.--Amarillo
2003, pet. denied)
. ........................................................ 4
Randolph, Bowen & Co. v. Randolph, 34 Tex. 181, 184-185 (Tex. 1871). . . . . . . . . 5
Rose v. Rose, 117 S.W.3d 84, 87 (Tex. App.--Waco 2003, no pet.) . . . . . . . . . . . . . . 3
TAC Americas, Inc. v. Boothe, 94 S.W.3d 315, 318 (Tex. App.--Austin 2002, no pet.)
.................................................................... 3
Thomson v. Findlater Hardware Co., 156 S.W. 301, 303 (Tex. App. 1913). . . . . . . . 5
Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Texas Rules of Civil Procedure
Tex. R. Civ. P. 205. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
iv
Exhibit R App. 304
INTRODUCTION
Relators MOSSER LAW PLLC and James C. Mosser, submit this petition for
writ of mandamus AND prohibition complaining of the order(s) of the Honorable Sheryl
Day McFarlin, Associate Judge of the 160th District Court, Dallas County Texas. For
clarity, relators are referred to as Mosser, or Relator. Respondent, the Honorable Sheryl
Day McFarlin, is referred to by Honorable Sheryl Day McFarlin or Respondent; and the
Real Party in Interest Jones and Mauldin Real Estate Partnership, LT D., is referred to
as Jones.
The, underlying lawsuit is Jones and Mauldin Real Estate Partnership, LT D. v.
Peter Zuccarelli, Antoinette Zuccarelli, Vince Mioli, Mary Frances Mioli, Tom Tortorice,
and Marti Tortorice; Cause No. DC12-03140, in the 160 th District Court, Dallas County
Texas. The Captioned lawsuit.
Respondent issued an order directing Mosser, a non party to produce on or
before July 5, 2013, at 5 p.m.; “... all documents, including any electronically stored
documents, that any defendant has delivered to Mosser in connection with this case;
and all medical excuses that have been delivered to Mosser relating to the health of
any defendant in this case.”
The order was allegedly based “Plaintiff's Motion for Enforcement of Discovery
Order by Contempt and for Sanctions” filed on behalf of JONES AND MAULDIN REAL
ESTATE PARTNERSHIP LTD. Subsequently Respondent issued an order based on
hearing on the discovery motion the Mosser did not participate in, was not a party in and
v
Exhibit R App. 305
was not permitted to attend.
Mosser believes that the orders are void ab initio, because Relator is not a party
to the underlying suit and the claim is not based on a discovery matter or subpoena
directed at or served on Mosser, and that the Respondent lacked authority to enter the
order at Tab 1, as it relates to Mosser and that Respondent abused its discretion.
vi
Exhibit R App. 306
STATEMENT OF THE CASE
Trial Court Disposition
The Plaintiff’s attorney filed Plaintiff's Motion for Enforcement
of Discovery Order by Contempt and for Sanctions Appendix
Tab 4. The underlying proceeding relates to a void order
titled ORDER RE JUNE 28, 2013 HEARING. Appendix Tab
1. The Hon. Sheryl McFarlin, ordered “... Mosser Law PLLC
and Mr. James C Mosser to ... ” See Appendix Tab 1.
Subsequently The Hon. Sheryl Day McFarlin, ordered ... “
Mosser Law PLLC and James C. Mosser ... deliver to this
Court ... (A) all documents, including any electronically
stored documents, that any defendant has delivered to
Mosser in connection with this case; and (B) all medical
excuses that have been delivered to Mosser relating to the
health of any defendant in this case.” See Appendix Tab 1.
This is the order complained of. Mosser did not appear at the
subject hearing as he had been discharged by order of the
court See Appendix Tab 2.
vii
Exhibit R App. 307
STATEMENT OF JURISDICTION
This court has jurisdiction over this petition for writ of mandamus under Section
22.221(b) of the Texas Government Code.
ISSUES PRESENTED
Issue Number One: The 160th District Court does not have personal jurisdiction over
MOSSER LAW PLLC and or James C. Mosser, or subject matter jurisdiction
related to the client file. The ORDER RE JUNE 28, 2013 HEARING, related to
MOSSER LAW PLLC and or James C. Mosser, is void ab initio.
viii
Exhibit R App. 308
STATEMENT OF FACTS
Relator MOSSER LAW PLLC, is a law firm in Dallas Texas. Relator James C.
Mosser is a lawyer in the Relator law firm. The Respondent is the Hon. Sheryl McFarlin.
RESPONDENT, the Associate Judge sitting for the elected judge in the 160th District
Court, Dallas County Texas. The underlying proceeding relates to a void order titled
ORDER RE JUNE 28, 2013 HEARING. Appendix Tab 1. JONES AND MAULDIN REAL
ESTATE PARTNERSHIP, LTD., are the plaintiff’s in the Captioned lawsuit. The
Defendants PETER ZUCCARELLI, ANTOINETTE ZUCCARELLI, VINCE MIOLI, MARY
FRANCES MIOLI, TOM TORTORICE, and MARTI TORTORICE, are the named
defendants in the Captioned lawsuit, Jones and Mauldin Real Estate Partnership, LT D.
v. Peter Zuccarelli, Antoinette Zuccarelli, Vince Mioli, Mary Frances Mioli, Tom
Tortorice, and Marti Tortorice; Cause No. DC12-03140, in the 160 th District Court,
Dallas County Texas. The Captioned lawsuit.
Therein the Respondent ordered “... that James C.
Mosser, Nicholas D. Mosser and Mosser Law PLLC, have fulfilled their duties to the
court and to Defendants.” See Appendix Tab 2.
After discharging Mosser Respondent, without Mosser present and excluding
Mosser for the subsequent hearing, the Respondent ordered: ... “On or before Friday,
July 5, 2013 at 5:00 PM Mosser Law PLLC and Mr. James C Mosser (together
"Mosser") shall deliver to this Court ... (A) all documents, including any electronically
stored documents, that any defendant has delivered to Mosser in connection with
this case; and (B) all medical excuses that have been delivered to Mosser relating to the
1
Exhibit R App. 309
health of any defendant in this case.” See Appendix Tab 1.
Relator is not a party to the Captioned lawsuit. Relator has not been served with
Citation as a Defendant in the Captioned lawsuit and Relator has not been served with
a petition naming Relator a Defendant in the Captioned lawsuit and Relator has not
been served a subpoena naming Relator. Defendant Peter Zuccarelli owes Mosser Law
PLLC and James C Mosser money from the prior representation. Mosser Law PLLC
and James C Mosser decline to release Defendants PETER ZUCCARELLI,
ANTOINETTE ZUCCARELLI, VINCE MIOLI, MARY FRANCES MIOLI, TOM
TORTORICE, and MARTI TORTORICE’s file to insure and maintain the rights of its
possessory lien.
James C. Mosser was a lawyer representing Defendants PETER ZUCCARELLI,
ANTOINETTE ZUCCARELLI, VINCE MIOLI, MARY FRANCES MIOLI, TOM
TORTORICE, and MARTI TORTORICE in Cause No. DC12-03140. On 28 June 2013,
the Hon. Sheryl McFarlin signed the ORDER GRANTING MOSSER LAW PLLC,
JAMES C. MOSSER, AND NICHOLAS D. MOSSER’S MOTION TO WITHDRAW AS
COUNSEL. Appendix Tab 2.
Subsequently, after Mosser had been discharged and after the court stated that
“[the] have fulfilled their duties to the court and to Defendants”, (Tab 2), the court held
another hearing and entered the offending order as it relates to Mosser. See Tab 1.
ARGUMENT AND AUTHORITIES
The 160TH District Court does not have personal jurisdiction over MOSSER LAW
PLLC and or James C Mosser.
It is undisputed that Mosser has not been served with citation or a petition
2
Exhibit R App. 310
naming it a defendant in this case. The order at Tab 1, as it relates to Mosser is void,
therefore, Mosser, need not show it does not have an adequate appellate remedy, and
mandamus relief is appropriate. In re Sw. Bell Tel. Co., 35 S.W.3d at 605. See also In
re Mosser Mallers PLLC 2008 WL 963170, 2 (Tex.App.-Dallas)
(Tex.App.-Dallas,2008). The service requirement affords a means for the court to
acquire jurisdiction over the party to be served. City of Tyler v. Beck, 196 S.W.3d 784,
787 (Tex. 2006). It is a fundamental rule of law in Texas that a plaintiff must properly
invoke the jurisdiction of a trial court by valid service of citation on a defendant.
Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985). Gray v. PHI
Resources, Ltd., 710 S.W.2d 566, 567 (Tex. 1986). See Omni Capital Int'l v. Rudolf
Wolff & Co., 484 U.S. 97, 104, 108 S. Ct. 404, 98 L. Ed. 2d 415 (1987) (noting that
absent consent, "[b]efore a federal court may exercise personal jurisdiction over a
defendant, the procedural requirement of service of summons must be satisfied");
Bolden v. Greenpoint Mortgage Funding, Inc., No. 3:04-CV-0379-P, 2004 U.S. Dist.
LEXIS 20508, at *14 (N.D. Tex., Oct. 13, 2004) ("The chief purpose of service of
process is to provide 'notice of the pendency of a legal action . . . .'") (citation omitted);
Rose v. Rose, 117 S.W.3d 84, 87 (Tex. App.--Waco 2003, no pet.) ("Without actual
service on a defendant or an effective substitute for service, a trial court generally lacks
the power to render judgment against the defendant. . . . The purpose of service of
citation is to ensure that the defendant has notice of the suit."); TAC Americas, Inc. v.
Boothe, 94 S.W.3d 315, 318 (Tex. App.--Austin 2002, no pet.) ("Generally, the purpose
of citation is to give the court jurisdiction over the parties and to provide notice to the
defendant . . . ."). The Texas Supreme Court has explained that even "[a]ctual notice to
3
Exhibit R App. 311
a defendant," after defective substituted service, is "not sufficient to convey upon the
court jurisdiction to render default judgment against him." Wilson v. Dunn, 800 S.W.2d
833, 836 (Tex. 1990)."Without notice via the required service of citation or a waiver
thereof, nothing short of a general appearance will confer upon the trial court jurisdiction
over a person." Cotton v. Cotton, 57 S.W.3d 506, 511 (Tex. App.--Waco 2001, no
pet.).
Since Mosser Law PLLC or James C. Mosser is not a party to the underlying
litigation and has never been served with citation or petition and has not waived service
the court does not have personal jurisdiction over either, and the court does not have
subject matter jurisdiction over their files. Primrose Operating Co., Inc. v. Jones, 102
S.W.3d 188, 193 (Tex.App.--Amarillo 2003, pet. denied). “If a trial court enters a
judgment before it acquires jurisdiction of the parties, the judgment is void.” In re
Guardianship of B.A.G., 794 S.W.2d 510, 511-12 (Tex. App.--Corpus Christi 1990, no
writ) (citing Browning v. Placke, 698 S.W.2d 362, 363, 29 Tex. Sup. Ct. J. 33 (Tex.
1985)), “However, a void judgment is entirely null within itself and cannot be ratified or
confirmed.” Del Peterson, D.D. Associates, Inc. v. Stromberger 2005 WL
2363059,(Tex.App.-Dallas,2005). In re Mask, 198 S.W.3d 231, 234 (Tex. App. 2006)(A
judgment or order is void when it is apparent that the court rendering it lacked
jurisdiction of either the parties or the subject matter of the lawsuit.)(citing Perry v.
Ponder, 604 S.W.2d 306, 322 (Tex.Civ.App.-Dallas 1980, no writ). See also Dinyes v.
Dinyes, 2001 Tex. App. LEXIS 2303 (Tex. App. 2001). In re Ashton 266 S.W.3d 602
(Tex.App.–Dallas,2008).
4
Exhibit R App. 312
The ORDER RE JUNE 28, 2013 HEARING, relating to MOSSER LAW PLLC or
James C. Mosser is void ab initio.
The complained of order, ORDER RE JUNE 28, 2013 HEARING, relating to
MOSSER LAW PLLC or James C. Mosser, is void ab initio. Any portion of a trial
court's ruling rendered in the absence of subject-matter jurisdiction is void. See Hong
Kong Dev., Inc. v. Nguyen, No. 01-04-00586-CV, 229 S.W .3d 415, 2007 Tex. App.
LEXIS 4494, 2007 WL 1633360, at *13 (Tex. App.--Houston [1st Dist.] June 7, 2007, no
pet. h.) ("An order is void, among other things, if the trial court lacks subject-matter
jurisdiction to render it."). Klein v. Hernandez, 2007 Tex. App. LEXIS 6284 (Tex. App.
2007). "An attorney has a general lien for his professional dues on the papers of his
client in his hands, and upon all moneys in his possession belonging to his client." This
doctrine is affirmed in Casey v. March 1867 WL 4579, 2 (Tex.) (Tex. 1867), Randolph,
Bowen & Co. v. Randolph, 34 Tex. 181, 184-185 (Tex. 1871). That is to say, he
cannot sell said papers under process to foreclose his lien, as may a pledgee or
mortgagee in other cases, but his lien extends only to the right to retain such papers
until his debt is paid. Casey v. March, 30 Tex. 180; 4 Cyc. 1005, and 1023; 3 Am. &
Eng. Ency. Law, pp. 454, 464; Jones on Liens, § 132. Thomson v. Findlater Hardware
Co., 156 S.W. 301, 303 (Tex. App. 1913). An attorney may withhold papers from a
client only if the attorney claims a lien against the papers for amounts due from the
client for professional services. Nolan v. Foreman, 665 F.2d 738, 743 (5 th cir. 1982),
(citing Smith v. State, 490 S.W.2d 902, 910 (Tex. Civ. App. - Corpus Christi 1972, writ
ref'd n.r.e.)); see also Griffith v. Geffen & Jacobsen, P.C., 693 S.W.2d 724, 728 (Tex.
App. - Dallas 1985, no writ). 1988 Tex. AG LEXIS 107 (Tex. AG 1988). Mosser has is
5
Exhibit R App. 313
retaining the Defendants’ file because they owe money and Mosser has made demand
on the Defendants for payment. The legal bill for fees and services remains unpaid.
There is no discovery request in this dispute and there has never been a
discovery request directed to or served on MOSSER LAW PLLC or James C. Mosser as
plaintiffs or defendants in this case. There is no discovery subpoena or request for
production of MOSSER LAW PLLC or James C. Mosser’s files pursuant to Rule 205, or
served on MOSSER LAW PLLC or James C. Mosser as defendants in this case or as
non-parties. See Tex.R. Civ. P. 205.1. In this case, it is undisputed that relator w as not
served with citation, did not waive citation, has not appeared, and is not a party to the
dispute in trial court. “A trial court's ruling that requires production beyond what our
procedural rules permit is an abuse of discretion.” In re Dana Corp., 138 S.W.3d 298,
301 (Tex.2004) (orig. proceeding). In re Mosser Mallers PLLC 2008 WL 963170, 2
(Tex.App.-Dallas) (Tex.App.-Dallas,2008). In re Does 1-10, 242 S.W.3d 805, 819 (Tex.
App.—Texarkana 2007, no pet.)(conditionally granting mandamus relief to overturn a
trial court order, issued ex parte).
PRAYER
For these reasons, MOSSER LAW PLLC and James C. Mosser, Relator, request that
this court issue a Writ of Mandamus ordering Respondent, Hon. Sheryl Day McFarlin, to
vacate or rescind the order compelling MOSSER LAW PLLC or James C. Mosser to
“deliver to this Court ... (A) all documents, including any electronically stored
documents, that any defendant has delivered to Mosser in connection with this case;
and (B) all medical excuses that have been delivered to Mosser relating to the health of
6
Exhibit R App. 314
any defendant in this case.” See Tab 2.
Respectfully Submitted, MOSSER LAW PLLC
/s/ James C. Mosser
James C. Mosser
Texas Bar No. 00789784
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
Telephone 972-733-3223
Facsimile 972-267-5072
For Relator
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
delivered pursuant to Tex. R. App. P. 9.5 to counsel and Relator as indicated below on
July 5, 2013.
Court Facsimile: 214-653-7194
Hon. Cheryl Day McFarlin Respondent
160th District Court
George L. Allen, Sr. Courts Bldg.
600 Commerce St.
Dallas, Texas 75202
Paul A. Hoffman, Esq. Attorney for Real Parties in Interest
5400 LBJ Freeway, Ste. 1200
Dallas, Texas 75240
Facsimile: 972-380-2620
Jones and Mauldin Real Parties in Interest
Real Estate Partnership, LTD.
/s/ James C. Mosser
James C. Mosser
7
Exhibit R App. 315
VERIFICATION
BEFORE ME, the undersigned notary public, on this day personally appeared James C.
Mosser, relator's attorney, who being duly sworn by me deposed and said:
1. I am counsel for Mosser Law PLLC and James C. Mosser, relator in this case. I
am over 21 years of age and am competent to make this affidavit. I have read the
petition for writ of mandamus to which this verification is attached, which is filed
on behalf of Mosser Law PLLC and James C. Mosser and every factual
statement contained in the petition is within my personal knowledge and is true
and correct.
2. The documents contained in the Appendix attached hereto and incorporated in
haec verba, are authenticate true and correct copies of the orders and motions
filed in the trial court and on information and on information and belief there was
a reporter's record of trial court hearing. I have no personal knowledge of the
court reporters identity, and that the motions, and orders contained in the
appendix are true and correct copies.
3. ffiant sayeth not.
orn to and subscribed before me by James C. Mosser on July 5, 2013.
My commission expires: 1-1... '5- l(f>
JENNIFER MCOlE SALINAS
fKY COMMISSION EXPIRES
JanuaJy 25,2016 8
Exhibit R App. 316
APPENDIX
ORDER RE JUNE 28, 2013 HEARING Tab 1
ORDER GRANTING MOSSER LAW PLLC, JAMES C. MOSSER, AND NICHOLAS D.
MOSSER’S MOTION TO WITHDRAW AS COUNSEL Tab 2
9
Exhibit R App. 317
''t'
. Date: ~ ~
· rl J..-:<
't~
Time: 3 ~ Ji?. P!Vl
Initials:~ Sct/I.!S'K
'-\~'\: ·IJ 001
No. DC12-03140
JONES AND MAULDIN REAL § IN THE 160TII JUDICIAL
ESTATE PARTNERSHIP, LTD. §
§
V. §
§ DISTRICT COURT OF
PETER ZUCCARELU, §
ANTOINETTE ZUCCARELU, VINCE §
MIOLI, MARY FRANCES MIOU, §
TOM TORTORICE, MARTI TORTORICE, § DALLAS COUNTY, TEXAS
ORDER RE JUNE 28, 2013 HEARING
ON THIS DAY Plaintiff's Motion for Enforcement of Discovery Order by
Contempt and for Sanctions filed on behalf of JONES AND MAULDIN REAL
EsTATE PARTNERSHIP LTD. ~ before the court for consideration.
JMR appeared by counsel AND PETER ZUCCARELU (Zuccarelli) appeared in
person, his legal counsel having previously been given permission to
withdraw. All parties announced ready, and the Court heard testimony from
two witnesses, as well as arguments of counsel. Based upon the matters
presented the Court fmds that the hearing should be recessed until certain
matters ordered below have been addressed.
IT IS THEREFORE ORDERED that the following occur.:
1. On or before Friday, July 5, 2013 at 5:00PM Mosser Law PLLC and
Mr. James C Mosser (together "Mosser") shall deliver to this Court at
~-.~room Lg C.. in the George LAllen, Sr. Courts Building, 600
Commerce St., Dallas, TX 75202 the following:
(A) all documents, including any electronically stored documents,
that any defendant has delivered to Mosser in connection with
this case; and
(B) all medical excuses that have been delivered to Mosser
relating to the health of any defendant in this case.
2. At 3:00 o'clock P. M. on Monday, July 1, 2013, Zuccarelli shall open
the door to the garage at his house located at ~§``'a~m@l in
Order Re June 28, 2013 Hearing I
Exhibit R Appendix
App. Tab
3181
•
.j-wo
v
Plano, Texas, and at that time allow Plaintiffs representatives to see, ,
examine and photograph the contents. 'T..- n.o e..V £.V\-T ~hA..\ \ P\~ 1'\T; ~!; £.
·re.pce.£.-e.nt-c.:'tiv~ "ri\l-1~·· 'f\lY'( +e.D.
Plaintiffs representatives free access to said premises for the
~ll'f~, examining and photographing everything within -\-<> '?> O
said premises except the contents of closed desk drawers.
4. On or before 5:00PM on Friday, Ju!y!jg, 2013, Zuccarelli shall
provide all records from Wells Fargo bank account number
5``;ji`` held in the name of``~ijlm!L~/1111.
Inc. for the periods between March 1, 2012 andJuly31, 2012 and
between March 1, 2013 and the present date to counsel for plaintifi,
Bruce Manning, at his office, 4 709 West Lovers Ln., Suite 100,
Dallas, TX 75209.
5. Plaintiff shall be authorized to issue a subpoena for the fmancial
records held by any defendant from Compass Bank, provided such
subpoena is limited in time to the period between JanUary I, 2012
S~£ll"'
"'1:1.'!\!!!l!ll"!'!`` 28 ' 2013.
SIGNED on.¥ ~<& '2013.
JUDGE PRE
Order Re Jlllle 28, 2013 Hearing 2
Exhibit R Appendix
App. Tab
3191
CAUSE NO. DC12-03140
JONES AND MAULDIN REAL § IN THE DISTRICT COURT
ESTATE PARTNERSHIP, LTD., §
Plaintiff, §
§
v. § THE 160TH JUDICIAL DISTRICT
§
PETER ZUCCARELLI, §
ANTOINETTE ZUCCARELLI, VINCE §
MIOLI, MARY FRANCES MIOLI, §
TOM TORTORICE, MARTI TORTORICE, §
Defendants. § OF DALLAS COUNTY, TEXAS
ORDER ON MOTION TO WITHDRAW
After considering James C. Mosser, Nicholas D. Mosser, and Mosser Law PLLC's
motion to withdraw, the Court
GRANTS the motion and orders James C. Mosser, Nicholas D. Mosser, and Mosser
Law PLLC withdrawn as attorney for Defendants, Peter Zuccarelli, Antoinette Zuccarelli,
Vince Mioli, Mary Frances Mioli, Tom Tortorice, and Marti Tortorice., and that James C.
Mosser, Nicholas D. Mosser and Mosser Law PLLC, have fulfilled their duties to the
court and to Defendants.
SIGNED on iM. q :;) ~ • 2013.
Exhibit R Appendix
App. Tab
3202
RECORD
There was a record of testimony adduced at this hearing related to the complained of
order, Mosser Law PLLC and James C. Mosser, were not in attendance and in fact
excluded by court order from the hearing. Mosser Law PLLC and James C. Mosser do
not have knowledge of the identity of the reporter.
10
Exhibit R App. 321
In re Mosser Law PLLC, Not Reported in S.W.3d (2013)
Paul A. Hoffman, Paul A. Hoffman, P.C., Dallas, TX, for
2013 WL 3718076 appellees.
Only the Westlaw citation is currently available.
Before Justices O'NEILL, LANG–MIERS, and EVANS.
SEE TX R RAP RULE 47.2 FOR
DESIGNATION AND SIGNING OF OPINIONS. Opinion
MEMORANDUM OPINION
Court of Appeals of Texas, MEMORANDUM OPINION
Dallas.
Opinion by Justice LANG–MIERS.
In re MOSSER LAW PLLC,
*1 Relators contend the associate judge erred in ordering
and James C. Mosser, Relators.
them to deliver certain documents to the trial court. The
facts and issues are well known to the parties, so we
No. 05–13–00906–CV. | July 12, 2013.
need not recount them herein. Based on the record before
On Appeal from the 160th Judicial District Court, Dallas us, we conclude relators have not shown they are entitled
County, Texas, Trial Court Cause No. DC–12–03140. Sheryl to the relief requested. See TEX.R.APP. P . 52.8(a);
Day McFarlin, Judge. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.1992)
(orig.proceeding). Accordingly, we DENY relators' petition
Attorneys and Law Firms for writ of mandamus.
James C. Mosser, Mosser Law, PLLC, Dallas, TX, for
appellants.
End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.
Exhibit ©R2014 Thomson Reuters. No claim to original U.S. Government Works. App. 322 1
HAWASHMEADE
HAW ASH MEADE GASTON NEESE & CICACK LLP
Samuel B. Haren
sharen@hmgllp.com
713-658-9001 (phone)
713-658-9011 (fax)
February 20, 2015
Via Facsimile:
(972) 267-5072
Mr. Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
Re: Cause No. 2014-10896, Los Cucos Mexican Cafe VIII, Inc. et al. v. 8650 Frisco, LLC et
al. in the 133rd Judicial District Court of Harris County, Texas
Dear Mr. Mosser:
Plaintiffs served certain discovery requests on Defendant 8650 Frisco, LLC on April 14, 2014.
On June 23, 2014, the Court overruled your objections to requests for production 1, 2, 3, 4, 5, 7, and 8
and ordered you to produce all responsive documents. On July 28, the Court again ovenuled your
objections and again ordered you to produce all responsive documents. You were required to produce
the documents "at Plaintiffs' attorneys' office by Aug[ust] 1, 2014 at 5:00 p.m." We still have not
received these documents.
If we have not received these documents by 5:00p.m. today, we will move to compel and seek
sanctions. If you need assistance serving the documents electronically, we would be happy to help.
2118 Smith Street I Houston, Texas 77002
Main Phone: (713) 658-9001 I Main Facsimile: (713) 658-9011
Exhibit R
Exhibit 25 Ohio App. 323
www.hmgll p.com
MOSSER LAW PLLC
17110 DALLAS PARKWAY, SUITE 290 • DALLAS, TEXAS 75248 • 972-733-3223 • FAX: 972-267-5072
MOSSER LAW .COM
February 20, 2015
Via eFile
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
kstephens@stephensdominitz.com
RE: Los Cucos VIII, Inc. Et al., v. 8650 Frisco LLC, et al.
Dear Mr. Stephens:
We are in receipt of Mr. Harem’s letter regarding some unspecified production.
However it seems most of that discovery would be rendered moot by your nonsuiting all
claims except for the Rule 11 agreement.
Even if that production were not moot at this time, we have complied with all orders of
this court and would need more specifics as to what you are referring. This information
would be necessary to investigate what documents you contend you did not receive
and where that error may lie.
Respectfully, MOSSER LAW PLLC
/s/ Nicholas D. Mosser
Nicholas D. Mosser
CERTIFICATE OF SERVICE
I certify that on February 20, 2015 , a true and correct copy of this document was
served to the following pursuant to Texas Rules of Civil Procedure 21 & 21(a).
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
Exhibit R
Exhibit 26 Ohio App. 324
kstephens@stephensdominitz.com
/s/ Nicholas D. Mosser
By: Nicholas D. Mosser
Exhibit R App. 325
Cause No. 2014-10896
Los Cucos Mexican Cafe VIII, Inc.; In the District Court of
Los Cucos Mexican Cafe IV, Inc.;
Manuel Cabrera; and Sergio
Cabrera,
Plaintiffs
v. Harris County, Texas
8650 Frisco, LLC d/b/a Estilo Gaucho
Brazilian Steakhouse; Mandona,
LLC; Galovelho, LLC; Bahtche,
LLC; Claudio Nunes; and David Jeiel
Rodrigues, 133rd Judicial District
Defendant
Notice of Hearing
Please take notice that the Court will conduct an oral hearing on Defendants’ Second
Motion to Enforce the Court’s Order and for Sanctions on March 30, 2015, at 2:00 p.m. in the
133rd Judicial District Court of Harris County, Texas.
Exhibit R App. 326
Respectfully submitted,
Stephens & Domnitz, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
State Bar No. 19158300
P.O. Box 79734
2118 Smith Street
Houston, Texas 77279-9734
281-394-3287 (phone)
832-476-5460 (fax)
kstephens@stephensdomnitz.com
Hawash Meade Gaston
Neese & Cicack LLP
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
Samuel B. Haren
State Bar No. 24059899
2118 Smith Street
Houston, Texas 77002
713-658-9001 (phone)
713-658-9011 (fax)
ameade@hmgnc.com
jmasten@hmgnc.com
sharen@hmgnc.com
Cox Smith Matthews Incorporated
David Kinder
State Bar No. 11432550
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205
210-554-4400 (phone)
210-226-8395 (fax)
dkinder@coxsmith.com
Attorneys for Plaintiffs
2
Exhibit R App. 327
Certificate of Service
A true and correct copy of the foregoing has been served on all counsel of record via
electronic service on February 20, 2015.
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pky, Suite 290
Dallas, Texas 75248
/s/ Samuel B. Haren
Samuel B. Haren
3
Exhibit R App. 328
3/3/2015 11:12:46 AM
Chris Daniel - District Clerk Harris County
Envelope No. 4347098
By: JIMMY RODRIGUEZ
Filed: 3/3/2015 11:12:46 AM
CAUSE NO. 2014-10896
§ IN THE DISTRICT COURT OF
LOS CUCOS MEXICAN CAFÉ VIII,
§
INC., LOS CUCOS MEXICAN CAFÉ IV,
§
INC., MANUEL CABRERA, and
§
SERGIO CABRERA
§
PLAINTIFFS, §
§
V. § HARRIS COUNTY, TEXAS
§
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES §
and DAVID JEIEL RODRIGUES §
§
DEFENDANTS. § 133rd JUDICIAL DISTRICT
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ SECOND MOTION TO ENFORCE THE
COURT’S ORDER AND FOR SANCTIONS AND DEFENDANTS’ MOTION FOR
SANCTIONS
Defendants, 8650 Frisco, LLC, d/b/a Estilo Gaucho Brazilian Steakhouse, Mandona, LLC,
Galovelho, LLC, Batche, LLC, Claudio Nunes, and David Jeiel Rodrigues, files this, their
response to Plaintiffs’ Second Motion to Enforce the Court’s Order and for Sanction and
Defendants’ Motion for Sanctions.
RESPONSE
1. In an effort to reduce the length of this response, Defendants will not address the
majority of Plaintiffs’ 218 page motion, instead Defendants will focus on the alleged
contempt Plaintiffs have falsified. Defendants deny the majority of the factual
contentions contained within Plaintiffs motion, however, the false statements
concerning Plaintiffs allegations of contempt are sufficient to warrant severe
sanctions alone.
Exhibit S App. 3291
2. On August 1, 2015 Kelly Stephens turned his fax machine off, after the court
ordered Defendants produce documents before 5:00pm. See Plaintiffs’ Second
Motion to Enforce the Court’s Order and for Sanctions, Exhibit 18.
3. Shortly thereafter, Plaintiffs sent a condescending letter acknowledging the Attorney
in Charge’s disconnected fax machine, and stating “If you are unsure how to use an
FTP link or Dropbox, we would be happy to provide assistance.” Plaintiffs’ Second
Motion to Enforce the Court’s Order and for Sanctions, Exhibit 19.
4. Despite this claim of superior knowledge regarding “FTP link[s] or Dropbox,”
Plaintiffs contend they were never served with the now moot document production.
Plaintiffs’ Second Motion to Enforce the Court’s Order and for Sanctions, Exhibit 25.
5. After Plaintiffs filed their Second Motion to Enforce the Court’s Order and for
Sanctions, Defendants provided Plaintiffs the exact date and time the documents
were served and requested Plaintiffs withdraw their harassing motion. Plaintiffs
declined this offer. Exhibit A.
6. Plaintiffs currently have at least seven lawyers working on their case spread across
three law firms. None of these lawyers, including the attorney in charge, Kelly
Stephens, checked his eservice account for the documents. Plaintiffs’ counsel would
prefer to churn their file, lie to the court, and otherwise demean the practice of law
through incorrect statements of fact, law, and holdings of the courts.
7. As Defendants’ counsel has previously told Plaintiffs’ Counsel, the documents were
served on the Attorney in Charge on August 1, 2014 at 4:46pm. Exhibit B. Plaintiffs
counsel ignored this service for the “200 days” until they filed their baseless motion,
and even now continue ignore the fact that they were served.
Exhibit S App. 3302
8. Texas Civil Practice and Remedies Chapter 9 and Texas Rule of Civil Procedure 13
controls when an attorney lies to the court on documents. Texas Civil Practice and
Remedies Code Chapter 9 states, “The signing of a pleading as required by the
Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the
signatory's best knowledge, information, and belief, formed after reasonable inquiry,
the pleading is not: (1) groundless and brought in bad faith; (2) groundless and
brought for the purpose of harassment;” Tex. Civ. Prac. & Rem. Code Ann. § 9.011
(West).
9. Similarly, Rule 13 states, “The signatures of attorneys or parties constitute a
certificate by them that they have read the pleading, motion, or other paper; that to
the best of their knowledge, information, and belief formed after reasonable inquiry
the instrument is not groundless and brought in bad faith or groundless and brought
for the purpose of harassment.” Tex. R. Civ. P. 13.
10. Plaintiffs current motion is patently groundless and brought in bad faith and/or for
the purpose of harassment. The attorney in charge, Kelly Stephens, was served all
documents the Court required to be served. Exhibit B. Despite actual service of the
documents, Plaintiffs and their seven lawyers bring the present libelous motion for
no purpose other than to churn their own file and harass Defendants.
11. Plaintiffs’ motion requests $500 per day starting August 1, 2014 until “Defendants
finally produce [the documents].” Plaintiffs’ Second Motion to Enforce the Court’s
Order and for Sanctions, pg 6. This amounts to a $100,000 fine because Plaintiffs
wish to lie to the court.
12. Defendants believe that it is more egregious for Plaintiffs to falsify information to the
Exhibit S App. 3313
Court where they intentionally attack another lawyer. This conduct is not unique to
this situation.
13. Plaintiffs falsified their notice of hearing on the Motion for Summary Judgment. The
Clerk of the Court informed Defendants that she did not give Plaintiffs either a
hearing or submission on March 2, 2015. She went on to state that she was not sure
why they set it for hearing on March 2, 2015, but she never gave Plaintiffs that date.
However, rather than simply identifying the error, Plaintiffs in a clear effort to churn
their file refuse to reset the improper hearing, and have filed a 12 page response in
their effort to keep a hearing/submission date on March 2, 2015– that NEVER
EXISTED.
Conclusion
Plaintiffs’ counsel has lied to the court and knowingly brought a motion in bad faith and for
the purpose of harassment. The Court should impose a sanction upon Plaintiffs counsel
for their egregious and false filing equal to their obscene request on Defendants, $100,000.
Plaintiffs Counsel should be admonished that between the three law firms and at least
seven lawyers listed on the pleadings one should realize that this conduct should not be
tolerated.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants request that the Court, after notice
and hearing, deny Plaintiffs’ Motion, and impose sanctions upon Kelly Stephens for signing
and filing false documents with the court.
Respectfully submitted, MOSSER LAW PLLC
Exhibit S App. 3324
/s/ Nicholas D. Mosser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
Telephone 972-733-3223
Facsimile 972-267-5072
courtdocuments@mosserlaw.com
Lawyers for Defendants
CERTIFICATE OF SERVICE
I certify that on March 3, 2015, a true and correct copy of this document was
served pursuant to Tex. R. Civ. P. 21 and 21a, to the following counsel/parties:
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
Nicholas D. Mosser
By: Nicholas D. Mosser
Exhibit S App. 3335
MOSSER LAW PLLC
17110 DALLAS PARKWAY, SUITE 290 • DALLAS, TEXAS 75248 • 972-733-3223 • FAX: 972-267-5072
MOSSER LAW .COM
February 21, 2015
Via eFile
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
RE: Los Cucos VIII, Inc. Et al., v. 8650 Frisco LLC, et al.
Dear Mr. Stephens:
Please withdraw your baseless and harassing motion you filed on Friday February 20,
2015 no later than 12:00pm Monday February 23, 2015. The documents you contend
were never served on you, were served on Plaintiffs attorney in charge at 4:46:18 PM
on August 1, 2014.
Respectfully, MOSSER LAW PLLC
/s/ Nicholas D. Mosser
Nicholas D. Mosser
CERTIFICATE OF SERVICE
I certify that on February 21, 2015, a true and correct copy of this document was served
to the following pursuant to Texas Rules of Civil Procedure 21 & 21(a).
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
/s/ Nicholas D. Mosser
By: Nicholas D. Mosser
Exhibit S Exhibit A
App. 3346
Envelope Details https://efile.txcourts.gov/EnvelopeDetails.aspx?envelopeguid=49b...
Print this page
Case Information
Location Harris County - 133rd Civil District Court
Date Filed 08/01/2014 04:46:18 PM
Case Number 201410896
LOS CUCOS MEXICAN CAFE VIII, INC. v 8650 FRISCO, LLC DBA
Case Description
ESTILO GAUCHO BRAZILIAN STEAK
Assigned to Judge
Attorney Nicholas Mosser
Firm Name Mosser Law PLLC Lawyers
Filed By Nicholas Mosser
Filer Type Attorney
Fees
Convenience Fee $0.00
Total Court Case Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $0.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
Total Provider Tax Fees $0.00
Grand Total $0.00
Payment
Account Name Mosser Law 1
Transaction Amount $0.00
Transaction Response
Transaction ID 3362193
Order # 002029603-0
Service Only
Filing Type Serve
Filing Code Service Only
Filing Description Supplemental
Reference Number
Comments
Status Served
Fees
Exhibit S Exhibit B
App. 3357
1 of 2 2/20/2015 6:52 PM
Envelope Details https://efile.txcourts.gov/EnvelopeDetails.aspx?envelopeguid=49b...
Court Fee $0.00
Service Fee $0.00
Documents
Service Document will produce.pdf [Original] [Transmitted]
eService Details
Date/Time
Name/Email Firm Service Type Status Served
Opened
Kelly D. Stephens Stephens &
EServe Sent Yes Not Opened
kstephens@stephensdomnitz.com Domnitz PLLC
James C Mosser Mosser Law 08/04/2014
EServe Sent Yes
CourtDocuments@MosserLaw.com PLLC Lawyers 11:33:33 AM
Exhibit S Exhibit B
App. 3368
2 of 2 2/20/2015 6:52 PM
3/23/2015 9:02:57 AM
Chris Daniel - District Clerk Harris County
Envelope No. 4592937
By: EVELYN PALMER
Filed: 3/23/2015 9:02:57 AM
CAUSE NO. 2014-10896
§ IN THE DISTRICT COURT OF
LOS CUCOS MEXICAN CAFÉ VIII,
§
INC., LOS CUCOS MEXICAN CAFÉ IV,
§
INC., MANUEL CABRERA, and
§
SERGIO CABRERA
§
PLAINTIFFS, §
§
V. § HARRIS COUNTY, TEXAS
§
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES §
and DAVID JEIEL RODRIGUES §
§
DEFENDANTS. § 133rd JUDICIAL DISTRICT
SUPPLEMENT TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ SECOND MOTION
TO ENFORCE THE COURT’S ORDER AND FOR SANCTIONS AND DEFENDANTS’
MOTION FOR SANCTIONS
Defendants, 8650 Frisco, LLC, d/b/a Estilo Gaucho Brazilian Steakhouse, Mandona, LLC,
Galovelho, LLC, Batche, LLC, Claudio Nunes, and David Jeiel Rodrigues, files this, their
supplemental response to Plaintiffs’ Second Motion to Enforce the Court’s Order and for
Sanction and Defendants’ Motion for Sanctions.
RESPONSE
1. Defendants tender Exhibit C to further illustrate that Plaintiffs’ counsel was aware
of the service prior to filing the sanctions motion, however, chose to ignore the
document served on him. Furthermore, Plaintiffs’ counsel attempts to argue that
instantaneous service of a document prior to 5:00 pm was not valid service because
his email server failed to retrieve the document until later. Exhibit C.
2. Finally, Despite Plaintiffs indication that they would take their sanctions motion
Exhibit T App. 337
down, it has yet to be removed from the Court’s docket nor has any filing been
submitted withdrawing the sanctions motion.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants request that the Court, after notice
and hearing, deny Plaintiffs’ Motion, and impose sanctions upon Kelly Stephens for signing
and filing false documents with the court.
Respectfully submitted, MOSSER LAW PLLC
/s/ Nicholas D. Mosser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
2805 Dallas Parkway, Suite 200
Plano, Texas 75248
Telephone 972-733-3223
Facsimile 972-267-5072
courtdocuments@mosserlaw.com
Lawyers for Defendants
CERTIFICATE OF SERVICE
I certify that on March 23, 2015, a true and correct copy of this document was
served pursuant to Tex. R. Civ. P. 21 and 21a, to the following counsel/parties:
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
Nicholas D. Mosser
By: Nicholas D. Mosser
Exhibit T App. 338
03/04/2015 11:37 #0793 P.002 /003
STEPHENS & DOMNITZ, PLLC
ATIORNEYS AT LAW OFFICES
P.O. Box 79734 TELEPHONE 281-394-3287
HOUSTON, TEXAs 77279-9734 FACSIMILE 832-476-5460
March 4, 2015
Via Facsimile: (972) 267-5072
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pkwy, Ste. 290
Dallas, TX 75248
RE: Cause No. 2014-10896; Los Cucos Mexican Caj(! Vlll eta/, vs. 8650 Frisco, LLC
d/b/a Gaucho Brazilian Steakhouse et al, in the 133'd Judicial District Court of
Harris County, Texas.
Dear Mr. Mosser:
After having a chance to review your response to the Motion to Compel, I see that
your position is that submitting docllillcnts for e-scrvice at 4:46 p.m., on August 1, 2014,
constituted delivery by 5:00p.m. to my offices.
I would point out to you that the Court's Order was not about service as set forth
in Rule 2la, but rather about physical delivery of the documents. Your exhibit shows that
the doclUllents were not sent to your e-service until 4:46 p.m. My email shows that the
same were not forwarded to me until5:47 p.m. Even then, it was not the documents that
were delivered but rather a notice that they had been placed in the e-service and could be
downloaded. Thus your delivery was not, as ordered, by 5:00 p.m. and, as you know, I
did not receive the docllillcnts.
Further, at this point, I have no way of knowing what documents were being sent
viae-service as I cannot now download documents from the notice.
However, my goal is not to I) split hairs on procedure, nor 2) to unnecessarily
burden the court, nor 3) to seek to punish you. I simply want the documents we requested
and which the court previously ordered you to deliver to me.
If you will deliver to me the documents requested by 3:00p.m. this Friday, March
6, 2015, l will withdraw the motion. r further request that the documents be
supplemented to contain information through the end of 2014.
In fairness, I cannot represent to the court that the documents were not sent as you
have represented. I can say that something was sent, but not what it was. Had I
recognized this and downloaded the appropriate documents, I would have accepted the
Page 1 of2
Exhibit T App. 339
EXHIBIT C
03/04/2015 11:37 #0793 P.003 /003
production as delivered. Because of that, I feel obligated to withdraw the request for
sanctions.
However, I do not have the documents and I require them to go forward. As such,
if you have not delivered the documents to me by 3:00p.m. this coming Friday, I will
withdraw the request for sanctions, but continue with the motion to compel.
Sincerely,
s/Kelly D. Stephens
Kelly D Stephens
Page 2 of2
Exhibit T App. 340
EXHIBIT C
03/04/2015 11:36 #0793 P.OOl /003
STEPHENS & OOMNITZ, PllC
ATIORNEYSATlAW
P.o_ BOX 79734 TELEPHONE 281-394-3287
HOUSTON, TEXAS 77279-9734 FACSIMILE 713-476-5460
To: Nicholas Mosser, The Mosser Law Firm From: Kelly D. Stephens
Fax: 972-267-5072 Pages: 2 Including cover
Date: March 4, 2015
Re: Los Cucos v. 8650 Frisco cc:
0 For ReView 0 Please Comment 0 Please Reply 0 Please Recycle
•Comments:
Enclosed: Letter of March 4, 2015.
Exhibit T App. 341
EXHIBIT C
4/1/2015 4:38:11 PM
Chris Daniel - District Clerk Harris County
Envelope No. 4735007
By: EVELYN PALMER
Filed: 4/1/2015 4:38:11 PM
MOSSER LAW PLLC
2805 DALLAS PARKWAY, SUITE 222 • PLANO, TEXAS 75093 • 972-733-3223 • FAX: 469-626-1073
MOSSER LAW .COM
April 1, 2015
Via eFile
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
kstephens@stephensdominitz.com
RE: Los Cucos VIII, Inc. Et al., v. 8650 Frisco LLC, et al.
Dear Mr. Stephens:
It appears as though you have not paid the bill on your facsimile line, the telephone
company indicates that the line has been disconnected. Similarly, it appears as though
the four or five lawyers at Mr. Meade’s firm are experiencing difficulties with their fax
machine preventing service.
Given Mr. Harem’s argument in court Monday, that utilization of the State Mandated
eService provider to serve documents was inappropriate and the Court restriction on
mailing documents I believe faxing the documents is the most certain way to assure
that you do not fail to open the file and lose information you are charged with
safekeeping for your clients, again.
If you find that you have lost the documents again, I believe Mr. Kinder has been
served a complete set of documents– as it appears his fax machine is plugged in, he
has paid the telephone bill, and his staf f has not been disconnecting the machine
during the middle of a transmission.
I would appreciate it if you would look into these issues, and correct your signature
block in your pleadings. Attached are my numerous attempts at serving you and the
other eight lawyers attempting to represent your clients.
Respectfully, MOSSER LAW PLLC
/s/ Nicholas D. Mosser
Nicholas D. Mosser
Exhibit U App. 342
CERTIFICATE OF SERVICE
I certify that on April 1, 2015, a true and correct copy of this document was
served pursuant to Texas Rules of Civil Procedure 21 & 21(a) on all nine counsel
representing Plaintiffs.
/s/ Nicholas D. Mosser
Nicholas D. Mosser
Exhibit U App. 343
MOSSER LAW PLLC
LAWYERS
2805 DALLAS PARKWAY, SUITE 222 • PLANO, TEXAS 75093 • 972-733-3223 • FAX, 469-626-1073
HDSSI~RL\\V.COi\1
March 31, 2015
Via Facsimile:
RE: Los Cucos VII, Inc., eta/. v. 8650 Frisco LLC, eta/.
Dear Counsel:
Pursuant to Mr. Haren's argument in court yesterday, that e-service through the
state mandated e-service provider was not permitted, please find attached the
documents we previously sent to you in August that Mr. Kelly deleted in violation of his
ethical duties.
Exhibit U App. 344
Broadcast Report p 1
03/31/2015 18:44
Serial Ho. 31104235
TC: 1112775
Destination Start Time Time Prints Result Note
17136589011 03-31 17:06 00:24:15 038/113 HG L1
12102268395 03-31 17:32 01:07:15 113/113 OK L1
18324765460 03-31 18:43 00:00:56 000/113 Ho Ans L1
Note L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORB: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BHD: Bind, SP: Special Original, FCDDE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: RX from TEL, HG: Other Error, Cant: Continue, Ho Ans: Ho Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
DC:Decode Error, MDH:MDH Response Error, DSH:DSH Response Error .
.l.VIOSSE.R LA."l-V PLLC
LAWTYERS
2805 D.A.Ll..AS PAR~AY, SUr:rE 222 • PLANo, TEXAS 75093 • 972-'733-.3223 "' FAX, 469-626-l-07.3
l'i:ossaRX...-\.=.coM
March 31,2015
VIa Facsimile:
RE: L q s C y c q s VII lnq et a! y 865Q Erlscq LLC. a t a!_
Dear Counsel:
Pursuant to Mr. Haren's argument In court yesterday, that a-service through the
state mandated a-service provider was not permitted, please find attached the
documents we previously sent to you In August that Mr. Kelly deleted In violation of his
ethical duties.
Exhibit U App. 345
Broadcast Report p 1
03/31/2015 20:39
Serial No. 31104235
TC: 1112776
Destination Start Time Time Prints Result Note
17136589011 03-31 19:01 00:23:57 038/113 HG L1
12102268395 03-31 19:27 01:07:56 113/113 OK L1
18324765460 03-31 20:38 00:00:56 000/113 Ho Ans L1
Note L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORB: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BND: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLY: Relay, ~BX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: RX from TEL, N6: Other Error, Cont: Continue, No Ans: No Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
OC:Oecode Error, MDN:MOH Response Error, DSH:DSH Response Error.
J.VCOSSE.R. L.Al/\T PLLC
.2805 D.A.LLAS P~.A.Y, Surrt3 222 -PI-ANO, TEXAS 75093 - 972-733-3223 • FAXr 469-626-1.073
l"'OI!II!IHRL.A'W".COM
March 31, 2015
VIa pacslmlle:
RE: LQS Cycq.s \/11. I n c at at v: BB§Q E r l s c q L L C a t a t...
Dear Counsel:
Pursuant to Mr. Haren's argument In court yesterday, that e-servlce through the
state mandated a-service provider vvas not permitted, please flnd attached the
documents we previously sent to you In August that Mr. Kelly deleted In violation of his
ethical duties.
Exhibit U App. 346
Broadcast Report p 1
03/31/2015 22:35
Serial No. 31104235
TC: 1112777
Destination Start Time Time Prints Result Note
17136589011 03-31 20:56 00:11:50 019/113 NG L1
12102268395 03-31 21:10 01:20:57 113/113 OK L1
18324765460 03-31 22:34 00:00:56 000/113 No Ans L1
Note L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, OR6: Original, FME: Frame Erase TX,
~IX: ~ixed Original, CALL: ~anual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BHD: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPAOR:IP Address Fax, I-FAX: Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: RX from TEL, N6: Other Error, Cont: Continue, No Ans: No Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
DC:Decode Error, MOH:MDH Response Error, DSH:DSH Response Error .
.lV:COSSE.R.. LA..l'V .PLLC
LAW"YERB
2805 DAI..I-AS P.A.RJ<:"'''VAY, St..rrrF.:I 222 "' PLANO, 'TEXAE 7509:3 "' 97.2-733-:3.223"' FAX< 4+69-626-1073
.MoaaaRLA=.coM
March 31. 2015
Via Eapsl!nlla:
RE: L q s Cyco.s WI Inc elt al_ ~ BBSQ Er{sc:q LLC: sf gl
Dear Counsel:
Pursuant to Mr. Haren's argument in court yesterday, that a-service through the
state mandated e-servlce provider was not permitted, please find attached the
documents we previously sent to you In August that Mr. Kelly deleted In violation of his
ethical duties.
Exhibit U App. 347
Broadcast Report p 1
04/01/2015 00:40
Serial Ho. 31104235
TC: 1112778
Destination Start Time Time Prints Result Hate
17136589011 03-31 22:52 00:23:59 038/113 HG L1
12102268395 03-31 23:52 00:43:07 077/113 OK L1
18324785480 04-01 00:39 00:00:58 000/113 Ho Ans L1
Note L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORB: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BHD: Bind, SP: Special Original, FCOOE: F-Code, RTX: Re-Tx, RLY: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: RX from TEL, NG: Other Error, Cant: Continue, No Ans: No Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
OC:Decode Error, MOH:MON Response Error, OSN:DSN Response Error.
2805 D~ P.ARICW"AY, Surra 222 "' Pr..ANo, TBXA.S 75093 - 97.2-733-3223 • FAXz 469 626-:1073
l't:O$ .. URl:...A.'W.COl'l
March 31. 2015
VIa Facsimile•
RE: Lqs Cucqs Vll Inc. er a t y B§SQ Eclsqq L L C e t nl.
Dear Counsel:
Pursuant to Mr. Haren's argument In court yesten:::lay, that a-service through the
state mandated e-servfce pr-ovider was not per-mitted, please find attached the
documents \NEI previously sent to you In August that Mr. Kelly deleted In violation of his
ethical duties.
Exhibit U App. 348
Broadcast Report p 1
04/01/2015 11:30
Serial Ho. 31104235
n:: 111~896
Destination Start Time Time Prints Result Note
17136589011 04-01 11:00 00:24:09 038/114 HG L1
18324785460 04-01 11:29 00:00:56 000/114 Ho Ans L1
Note L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORB: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BHO: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX:Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: RX from TEL, HG: Other Error, Cant: Continue, Ho Ans: No Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
DC:Oecode Error, MON:MOH Response Error, DSN:DSH Response Error .
.lVCOSS.ER. LA 1/V .PLLC
March 31.2015
VIa Eac;sirnlle:
RE: LOS Cu9Q4"F VII Inc et al v: BBSQ F r l s q q L L C at af
Dear Counsel:
Pursuant to Mr. Haren's argument in court yesterday, that a-service through the
state mandated a-service provider was not permitted, please find attached the
documents vve previously sent to you in August that Mr. Kelly deleted in violation of his
ethical duties.
Exhibit U App. 349
Broadcast Report p 1
04/01/2015 12:17
Serial No. 31104235
TC: 1112942
Destination Start Time Time Prints Result Note
7136589011 04-01 11:48 00:24:14 038/114 NG L1
8324765460 04-01 12:16 00:00:56 000/114 No Ans L1
Note L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BND: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX:Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: AX from TEL, NG: Other Error, Cant: Continue, No Ans: Ho Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
DC:Decode Error, MDN:MDN Response Error, DSN:DSH Response Error .
.1.\4"OSSE.R. LA 1/V"" .PL L C
LAW'Y:ERS
2805 DALl-AS PARK"''TAY, Surra 222 "' PLANO, TEXAS 7509.3 • 972-7.33-3223 '" FAX: 469-626-3.07.3
MOBSE;RL.A'W.C'ONC
March 31, 2015
VIa Facsimile~
RE: L o s Cuco.s- Vll.. Inc.. .. e ( g l y B65Q Erlseq LLC:: e t a l..
Dear Counsel:
Pursuant to Mr. Haren's argument In court yesterday, that a-service through the
state mandated e-service provider was not permitted, please find attached the
documents we previously sent to you In August that Mr. Kelly deleted in violation of his
ethical duties ..
Exhibit U App. 350
TX Report p 1
04/01/2015 14:41
Serial No. 31104235
rc: 111?976
Destination Start Time Time Prints Result Note
17136589011 04-01 14:37 00:03:57 017/017 OK L1
Hote L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BND: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLY: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: AX from TEL, NG: Other Error, Cont: Continue, Ho Ans: Ho Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVA:Aeceiving length Over, POVER:Receiving page Over, FIL:File Error,
OC:Oecode Error, MDH:MOH Response Error, DSH:OSH Response Error.
2805 DALLAS PARKWAY, Surr.e 222 • PLANO, TEXAS 7509.3 • 97.2-733--3223 • F'.AX:: 469-6.26-1073
1'-lCJI!!Illl'tRLA.W".CCJM
March 31 • 201 5
Via Eacslmlla•
RE: Lq.s Cuco.s Vll lace et al v; BBSQ Erl.scq LLC. e t a{..
Dear Counsel:
Pursuant to Mr. Haren's argument in court yesterday. that a-service through the
state mandated a-service provider was not permitted. please find attached the
documents we previously sent to you In August that Mr. Kelly deleted In violation of his
ethical duties.
Exhibit U App. 351
TX Report p 1
04/01/2015 14:50
Serial Ho. 31104235
TC: 111?878
Destination Start Time Time Prints Result Note
1832476546 04-01 14:48 00:00:58 000/011 No Ans L1
Hate L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWO: Forward, PC: PC-FAX,
BHD: Bind, SP: Special Original, FCOOE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPAOR:IP Address Fax, I-FAX: Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: RX from TEL, HG: Other Error, Cant: Continue, Ho Ans: No Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
OC:Decode Error, MOH:MOH Response Error, DSH:DSH Response Error .
.1\/.COSSER. LA 1/V" .PLLC
March 31, 2015
VIla Eapslmlle~
RE: Lq.s Cyqq.s \Of lnp e'l sl_ v 8650 F r l s c q LLC: e t «le
Dear Counsel:
Pursuant to Mr. Haren's argument in court yesterday. that a-service through the
state mandated a-service provider was not permitted. please find attached the
documents we previously sent to you In August that Mr. Ke11y deleted In violation of his
ethical duties.
Exhibit U App. 352
Broadcast Report p 1
04/01/2015 14:55
Serial Ho. 31104235
TC: 111?980
Destination Start Time Time Prints Result Note
17136589011 04-01 14:44 00:04:38 020/020 OK L1
18324765460 04-01 14:54 00:00:56 000/020 Ho Ans L1
Hote L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BND: Bind, SP: Special Original, FCOOE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: RX from TEL, NG: Other Error, Cont: Continue, No Ans: No Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
DC:Decode Error, MON:MDH Response Error, OSH:OSH Response Error .
.l.VCOSSER.. LA. 'l-V .PLLC
LAWY.BRS
2805 DALLAS P.ARKW"AY, Surra 222 • PLANO, TBXA.S 75093 • 97.Z..733-S22S • FAX.: 469-626-1073
1'1:01l1SX!Rl".JL"''.COM
March 31. 201 5
VIa Eacslrnlle•
RE: L o s Cycq.s Vll Inc •t a(, y: Bf!i50 F r l s c q L L C at «I
Dear Counsel:
Pursuant to Mr. Haren's argument in court yesterday. that a-service through the
state mandated a-service provider was not permitted. please find attached the
documents we previously sent to you in August that Mr. Kelly deleted in violation of his
ethical duties.
Exhibit U App. 353
Broadcast Report p 1
04/01/2015 15:07
Serial Ho. 31104235
TC: 111?985
Destination Start Time Time Prints Result Note
8324765460 04-01 15:00 00:00:56 000/023 Ho Ans L1
7136589011 04-01 15:01 00:06:29 023/023 OK L1
Note L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BHD: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: RX from TEL, NG: Other Error, Cant: Continue, No Ans: No Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
DC:Decode Error, MDN:MDN Response Error, DSH:DSH Response Error .
.1\;:ffOSSE.R.. LA 1/V .PL L C
LAW'YBRS
;::aS05 DALLAS PARKWAY, SurTE 222"' PLANO, TEXAS 75093- 97.2-733-3223 • FAX< 469-6.26-1.073
MC>I!ili!IE!RI.A....,..COM
March 31, 20'15
Via Epeftll'!'l!lle-
RE: LQ§ Cycq..s 'Vlf Inc a t at. v: 8650 Ecfscq L L C e t at..
Dear Counsel:
Pursuant to Mr. Haren's argument in court yesten::lay, that a-service through the
state mandated a-service provider was not permitted, please find attached the
documents we previously sent to you fn August that Mr. Kelly deleted In violation of his
ethical duties.
Exhibit U App. 354
Broadcast Report p 1
04/01/2015 15:17
Serial Ho. 31104235
TC: 1112986
Destination Start Time Time Prints Result Note
7136589011 04-01 15:09 00:04:08 020/020 OK L1
8324765460 04-01 15:16 00:00:56 000/020 Ho Ans L1
Note L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BHD: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLY: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: AX from TEL, NG: Other Error, Cont: Continue, No Ans: No Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
DC:Decode Error, MDH:MDH Response Error, DSH:DSH Response Error.
J'VCOSSER. .L.Al/V' .PLLC
March 31. 2015
Via Facsirnilo:
RE: Lg.s- CyCQ"S V!l lnq at • l y B65Q E r l s q g LLC o t a f
Dear Counsel:
Pursuant to Mr. Haren's argument In court yesterday. that a-service through the
state mandated e-servlce provider vvas not permitted. please find attached the
documents we previously sent to you in August that Mr. Kelly deleted In violation of his
ethical duties.
Exhibit U App. 355
Broadcast Report p 1
04/01/2015 15:27
Serial Ho. 31104235
TC: 1112990
Destination Start Time Time Prints Result Note
7136589011 04-01 15:18 00:05:07 022/022 OK L1
8324765460 04-01 15:26 00:00:56 000/022 No Ans L1
Hate L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BHD: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLY: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: RX from TEL, H6: Other Error, Cont: Continue, Ho Ans: Ho Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
DC:Decode Error, MDH:MDH Response Error, DSN:OSH Response Error .
.l.V:COSS.E.R LA.l"V" P.LLC
LAW"Y.B.RS
2805 DAL.l...AS P~AY. S'lrrr:E 222 '"' PLANO, TEXAS 75093 • 972--733-32.23 '"' FAX: 469-626-1073
MOiilSERLA."'W.COM
March 31, 2015
RE: Lqs Cucqs yn Inc et al y; 8650 Erlseq I LC •t a{,
Dear Counsel:
Pursuant to Mr. Haren's argument in court yesterday, that a-service through the
state mandated a-service provider was not permitted, please find attached the
documents we previously sent to you In August that Mr. Kelly deleted in violation of his
ethical duties_
Exhibit U App. 356
Broadcast Report p 1
04/01/2015 15:51
Serial No. 31104235
TC: 111?998
Destination Start Time Time Prints Result Note
7138589011 04-01 15:39 00:06:59 025/025 OK L1
8324785480 04-01 15:50 00:00:56 000/025 No Ans L1
Note L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORS: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BND: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPAOR:IP Address Fax, I-FAX: Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: AX from TEL, NG: Other Error, Cont: Continue, No Ans: No Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
OC:Oecode Error, MDH:MDH Response Error, OSH:OSH Response Error.
JVIOSSER.. LA.l'V" PLLC
March 31. 2015
VIa Eac;;slmlle-
RE.: Lp.s Cup~ Vll Inc et: s l V. BB5Q Erlsc:q LLC a t al-
Dear Counsel:
Pursuant to Mr. Haren"s argument In court yesterday, that a-service through the
state mandated a-service provider was not perrnlttad. please find attached the
docurnen'ls we previously sent to you In August that Mr. Kelly deleted in violation of his
ethical duties.
Exhibit U App. 357
Broadcast Report p 1
04/01/2015 15:38
Serial Ho. 31104235
TC: 1112995
Destination Start Time Time Prints Result Note
7138589011 04-01 15:27 00:05:58 022/022 OK L1
8324785480 04-01 15:37 00:00:58 000/022 No Ans L1
Note L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BHD: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLY: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: RX from TEL, NG: Other Error, Cont: Continue, No Ans: No Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
DC:Decode Error, MDH:MDH Response Error, DSN:DSN Response Error .
.l.VIOSS.E.R. LA 1/V PLLC
LA. W'YE'.RS
2805 DALLAS PARIC'.XI"A.Y. Surra 222 • P.L.A.NO, TBXA.S 75093 • 972-733-.3223 • FAX, 469-626-1073
Mc:>SSDRL.A'W.COM
March 31, 2015
VIP Facsimile:
RE: L q s Qycq.s VII Inc; at a! y BSSQ Frl.sqq L L C a t aL
Dear Counsel:
Pursuant. to Mr. Haren"s argument In court yesterday, that a-service through the
state mandated a-service provider VIlas not permitted, please find attached the
documents we previously sent. to you In August that Mr. Kelly deleted In violation of his
ethical duties.
Exhibit U App. 358
Broadcast Report p 1
04/01/2015 16:10
Serial Ho. 31104235
TC: 1113011
Destination Start Time Time Prints Result Hote
7136589011 04-01 15:51 00:04:50 027/027 OK L1
8324765460 04-01 16:09 00:00:56 000/027 Ho Ans L1
Hote L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, OR6: Original, FME: Frame Erase TX,
MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
BHD: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLY: Relay, MBX: Confidential,
BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX:Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
TEL: RX from TEL, H6: Other Error, Cont: Continue, Ho Ans: Ho Answer,
Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
DC:Decode Error, MDH:MDH Response Error, DSH:DSH Response Error.
2805 D~ P.A:RKWAY, SUlTEI222- PLANO, TEXAS 75093 • 972-73.3-3223 • FAX. 469-626-l-073
MotaallRl"-A"<<''7.COM
March 31.2015
Via Epc:aimilo•
RE: Lqs Cucos ltll Inc., pt al v: 865'0 Erlsc:q L L C e t a !..
Dear Counsel:
Pursuant to Mr. Haren's argument in court yesterday. that a-service through the
state mandated a-service provider was not permitted, please find attached the
documents vve previously sent to you in August that Mr. Kelly deleted in violation of" his
ethical duties.
Exhibit U App. 359
4/6/2015 10:13:27 AM
Chris Daniel - District Clerk Harris County
Envelope No. 4765552
By: EVELYN PALMER
Filed: 4/6/2015 10:13:27 AM
Cause No. 2014-10896
Los Cucos Mexican Cafe VIII, Inc.; In the District Court of
Los Cucos Mexican Cafe IV, Inc.;
Manuel Cabrera; and Sergio Cabrera,
Plaintiffs
v.
Harris County, Texas
8650 Frisco, LLC d/b/a Estilo Gaucho
Brazilian Steakhouse; Mandona,
LLC; Galovelho, LLC; Bahtche,
LLC; Claudio Nunes; and David Jeiel
Rodrigues,
Defendant 133rd Judicial District
Plaintiffs’ Third Motion to Enforce the Court’s Order and for Sanctions
The Court has ordered Plaintiffs to produce certain financial documents on three separate
occasions. Defendants have refused to do so. Plaintiffs request that the Court issue a fourth order
compelling production and impose sanctions to ensure compliance therewith.
Background
On April 14, 2015, Plaintiffs propounded requests for production seeking several
categories of financial documents. See Exhibit 1, Requests for Production at 10 (requests 1–5, 7–
8). In response, Defendants made numerous specious objections1 and refused to produce the vast
majority of responsive documents. See Exhibit 2, Defendants’ Response at 1–3. The Court
overruled those objections and ordered production of all responsive documents on three separate
occasions; Defendants did not comply with any of these orders:
 On June 23, 2014, the Court overruled Defendants’ objections and ordered production
of all responsive documents. Exhibit 3, Transcript of Motion to Compel Hearing at
23:2–9. Defendants did not comply with that order.
1
For example, Defendants offered several objections applicable only to banks and the federal government,
respectively.
Exhibit V App. 360
 On July 28, 2014, the Court again ordered Defendants to produce all responsive
documents “by August 1, 2014.” Exhibit 4, Order on Plaintiffs’ Third Motion to
Compel. Defendants did not comply with that order either.
 On March 30, 2015, the Court ordered Defendants a third time to produce all
responsive documents “by 5:00 p.m. on Wednesday, April 1, 2015.” Exhibit 5, Order
on Plaintiffs’ Second Motion to Enforce the Court’s Order. Defendants produced 112
additional pages but still failed to comply with the Court’s order.2 See Exhibit 6,
Document Production. All of these pages included a large and opaque “confidential”
watermark obscuring a large portion of the text. See generally id.
Defendants’ most recent production does not come close to complying with the Court’s
three orders:
What Defendants were ordered to produce: What Defendants actually produced:
All documents and records provided to or Defendants produced the Holtman Documents3
received from 8650 Frisco, LLC’s accountants but few, if any, documents provided to
(including, but not limited to Mike Verucchi, Verucchi.
CPA, Holtman & Company, LLC, or Hal
Holtman, CPA), which relate in any way to
8650 Frisco, LLC.
All documents and records in the possession of Defendants produced the Holtman Documents
8650 Frisco, LLC’s accountants (including, but but few, if any, documents from Verucchi.
not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA),
which relate in any way to 8650 Frisco, LLC.
All financial records of 8650 Frisco, LLC. Defendants produced bank statements for one
account from April through July, 2014. See id.
at SUPP.7236–59.
2
According to Defendants, they “served” these same 112 pages on August 1, 2014 through an electronic filing
service provider in violation of Texas Rule of Civil Procedure 21a(a)(2). But even if that service had been proper,
the inadequate production would have still violated the Court’s order.
3
As the Court may recall, Plaintiffs obtained 7,235 pages of documents via subpoena from Hal Holtman (the
“Holtman Documents”). Plaintiffs Bates labeled these documents and forwarded them to Defendants. Last June,
Defendants “produced” the Holtman Documents, complete with Plaintiffs’ original Bates numbering.
2
Exhibit V App. 361
What Defendants were ordered to produce: What Defendants actually produced:
All accounting records of 8650 Frisco, LLC. Defendants produced a spreadsheet which
appears to cover three weeks of sales and
inventory. See id. at SUPP.7275–338.
Defendants also produced Defendants
produced a “sales report” of unclear origin
showing sales for April through July, 2014. See
id. at 7338–47.
All bank statements of 8650 Frisco, LLC. Defendants produced bank statements for one
account from April through July, 2014. See id.
at SUPP.7236–59.
All tax records (including all 1099 forms, W-2 Defendants produced four letters from the IRS
forms, and K-1 forms) related to 8650 Frisco, concerning 8650 Frisco’s tax filings and an
LLC. email forwarding correspondence from the IRS
regarding other tax filings; Defendants did not
produce the actual filings being discussed or
any other tax filings. See id. at 7260–70
All communications and correspondence with Defendants produced the Holtman Documents
8650 Frisco, LLC’s accountants (including, but and an additional email from Holtman;
not limited to Mike Verucchi, CPA, Holtman Defendants did not produce any
& Company, LLC, or Hal Holtman, CPA), communications with Verucchi.
which relate in any way to 8650 Frisco, LLC
Despite the Court’s three orders, Defendants have not produced (1) bank records before
April 2014 or after July 2014; (2) accounting records such as QuickBooks files, balance sheets,
cash flow reports, profit and loss statements, etc.; (3) tax records (other than a few letters from
the IRS); or (4) documents/correspondence from their accountants other the Holtman Documents
which had been produced by Plaintiffs to Defendants.
Discussion
The Court has unambiguously ordered Defendants to produce all responsive documents
on three separate occasions. All three times, Defendants have simply ignored the Court’s order.
Plaintiffs respectfully request that the Court yet again command Defendants to comply with the
Court’s orders. Standing alone, the fourth order is no more likely to cause compliance than the
3
Exhibit V App. 362
prior three.4 As such, Plaintiffs ask the Court to impose one or more of the following sanctions
under Rule 215.2:
 disallowing further discovery by Defendants until Defendants have filed an affidavit
swearing to compliance with the Court’s orders;
 ordering Defendants to pay the costs incurred by Plaintiffs in all four motions to
seeking the documents;
 ordering that the matter at issue (specifically, whether Plaintiffs face irreparable harm
from Defendants’ failure to provide the note/security required by the parties’
contract) be established in Plaintiffs’ favor; and/or
 holding Defendants and their attorneys in contempt
See TEX. R. CIV. P. 215.2(b).
Conclusion
Defendants have ignored three orders by the Court to produce documents. Plaintiffs
request that the Court (1) issue a fourth order compelling Defendants to produce responsive
documents, (2) impose a sanction to ensure compliance with that order, and (3) grant Plaintiffs
all other relief to which they are entitled.
4
This is particularly true in light of the Court’s prior findings that “Defendants’ counsel has abused the discovery
process in resisting discovery” and that “Defendants have advanced frivolous arguments without basis in fact or
law” as part of “a larger pattern of improper objections, motions to quash, and invocations of privilege.” Exhibit 7,
Order on Plaintiffs’ Emergency Motion to Compel and for Sanctions; Exhibit 8, Order Denying Motion to Quash.
4
Exhibit V App. 363
Respectfully submitted,
Hawash Meade Gaston
Neese & Cicack LLP
/s/ Samuel B. Haren
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
Samuel B. Haren
State Bar No. 24059899
2118 Smith Street
Houston, Texas 77002
713-658-9001 (phone)
713-658-9011 (fax)
ameade@hmgnc.com
jmasten@hmgnc.com
sharen@hmgnc.com
Stephens & Domnitz, PLLC
Kelly D. Stephens
State Bar No. 19158300
P.O. Box 79734
Houston, Texas 77279-9734
281-394-3287 (phone)
832-476-5460 (fax)
kstephens@stephensdomnitz.com
Cox Smith Matthews Incorporated
David Kinder
State Bar No. 11432550
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205
210-554-5500 (phone)
210-226-8395 (fax)
Attorneys for Plaintiffs
Certificate of Conference
I attempted to confer with Defendants via fax on April 1 and 2, 2015. See Exhibit 9, Fax
to Defendants. Shortly after my second fax, Mr. Nicholas Mosser called my office and offered to
5
Exhibit V App. 364
re-send 7,235 page Holtman Documents which Plaintiffs had previously produced to Defendants.
When Mr. Mosser began to raise his voice while refusing to actually discuss the requirements of
the Court’s order (and in light of his demonstrated history of telephonic discourtesy and
distortion), I asked him to contact me in writing and terminated the call. He has not contacted me
further.
/s/ Samuel B. Haren
Samuel B. Haren
Certificate of Service
A true and correct copy of the foregoing has been served on all counsel of record via
electronic service on April 6, 2015.
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pky, Suite 290
Dallas, Texas 75248
/s/ Samuel B. Haren
Samuel B. Haren
6
Exhibit V App. 365
CAUSE NO. 2014-01089
LOS CUCOS MEXICAN CAFE § IN THE DISTRICT COURT OF
VIII, INC.; LOS CUCOS MEXICAN §
CAFE IV, INC.; MANUEL §
CABRERA; and SERGIO §
CABRERA, §
Plaintiffs §
§
v. §
§ HARRIS COUNTY, TEXAS
8650 FRISCO, LLC D/B/A ESTILO §
GAUCHO BRAZILIAN §
STEAKHOUSE; MANDONA, LLC; §
GALOVELHO, LLC; BAHTCHE, §
LLC; CLAUDIO NUNES; and §
DAVID JEIEL RODRIGUES, §
Defendants § 133rd JUDICIAL DISTRICT
PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS TO 8650 FRISCO, LLC
D/B/A ESTILO GAUCHO BRAZILIAN STEAKHOUSE
TO: Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse, by and
through its counsel of record, Nicholas D. Mosser and Benjamin Casey, Mosser
Law PLLC, 17110 Dallas Parkway, Suite 290, Dallas, Texas 75248.
Pursuant to the Texas Rules of Civil Procedure, Plaintiffs Los Cucos Mexican
Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera
(“Plaintiffs”) serve their First Set of Requests for Admissions, Requests for Production
and First Set of Interrogatories on Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho
Brazilian Steakhouse (“Defendant”) as authorized by Rules 196 and 198, TEX. R. CIV. P.
Defendant must specifically admit or deny and produce all requested documents in its
possession, custody, or control (as they are kept in the ordinary course of business or
organized and labeled to correspond with categories in each request) for inspection and
Exhibit V
Exhibit 1 Ohio App. 366
copying, and not more than 30 days after service, at the office of HAWASH MEADE
GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.
Respectfully submitted,
STEPHENS & DOMNITZ, PLLC
/s/ Kelly D. Stephens
Kelly D. Stephens
SBN: 19158300
P.O. Box 79734
Houston, Texas 77279-9734
Tel: 281-394-3287
Fax: 832-476-5460
kstephens@stephensdomnitz.com
HAWASH MEADE GASTON NEESE
& CICACK LLP
/s/ Andrew K. Meade
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
2118 Smith Street
Houston, Texas 77002
713-658-9006 (Direct & Fax)
ameade@hmgllp.com
jmasten@hmgllp.com
ATTORNEYS FOR PLAINTIFFS
LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
LOS CUCOS MEXICAN CAFÉ IV, Inc.,
MANUEL CABRERA, and
SERGIO CABRERA
2
Exhibit V App. 367
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been served to the
following pursuant to the Texas Rules of Civil Procedure on April 14, 2014.
Via Fax: 972-267-5072 and
email: courtdocuments@mosserlaw.com
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pkwy, Suite 290
Dallas, TX 75248
/s/ Andrew K. Meade
Andrew K. Meade
3
Exhibit V App. 368
DEFINITIONS AND INSTRUCTIONS
1. As used throughout this request (including these definitions and
instructions), the term “documents” means each and every document (as defined in
Rule 34, FED. R. CIV. P.), all electronically stored information, and each and every
tangible thing, including but not limited to both electronic and hard copy documents, in
the possession, custody, or control of Plaintiff, whether a copy, draft, or original,
wherever located, with all exhibits, attachments, and schedules, including but not
limited to the following: correspondence and drafts of correspondence; notes or
summaries of conversations; income tax returns, forms, schedules, or worksheets; inter-
and intra-office memoranda; reports; comments; worksheets; plans; minutes; notes;
notices or notifications; findings; conclusions; memoranda; contracts or agreements of
any kind; brochures, circulars, bulletins, advertisements, sales catalogs or literature;
packages, packaging, and package inserts; notes, records, summaries, or other reports of
conferences, meetings, visits, surveys, discussions, inspections, examinations, reviews
or telephone conversations; purchase orders, quotations, estimates, invoices, bids,
receipts, or acknowledgements, including the reverse sides of all such documents with
printing, typing or writing on the reverse sides; bills of lading and other shipping
documents; credit agreements or credit memoranda; contract or lease offers or
proposals; executed or proposed agreements, contracts, franchise agreements, licenses,
leases, insurance policies and riders, or options; proposals; diaries; desk calendars,
appointment books, or telephone call books; property valuations or appraisals, and
their updates; affidavits, depositions, transcripts and statements, or summaries or
excerpts thereof; stenographic notes; books and records; financial data; stock certificates
and evidence of stock ownership; newspaper or magazine articles; pamphlets, books,
texts, notebooks, magazines, manuals, journals, and publications; notepads, tabulations,
data compilations, calculations, or computations; schedules; drafts; charts and maps;
forecasts and projections; drawings, designs, plans, specifications, graphs, blueprints,
sketches, or diagrams; orders; pleadings and court filings; checks and check stubs (front
and back); records or transcripts of statements, depositions, conversations, meetings,
discussions, conferences or interviews, whether in person or by telephone or by other
means; workpapers; printouts or other stored information from computers or other
information retention or processing systems; e-mail or electronic mail or
communications, in whatever form; instant messages in whatever form; photographic
matter or sound reproduction matter however produced, reproduced or stored;
government reports, regulations, filings or orders; any other written, printed, typed,
taped, recorded, or graphic matters; any exhibits, attachments, or schedules to or with
the foregoing; any drafts of the foregoing; and any copies or duplicates of the foregoing
that are different because of marginal or handwritten notations, or because of any
markings thereon or alterations thereof.
2. All electronically stored information should be produced as an electronic
copy, preserving all metadata.
4
Exhibit V App. 369
3. Throughout this request (including these definitions and instructions), the
term “communications” means any and all of the following: writings, oral
communications, electronic communications (including emails, text messages, and
instant messages), wire communications, conversations by telephone, meetings, and
any contact, oral or written, formal or informal, at any time or place, and under any
circumstance whatsoever, in which information of any nature was transmitted or
exchanged in any form or by any medium.
4. Throughout this request (including these definitions and instructions), the
phrases “relating to,” “relates to,” “related to,” "regarding," and “in relation to” mean
constituting or evidencing, and directly or indirectly mentioning, describing, referring
to, pertaining to, being connected with, reflecting upon, or concerning the stated subject
matter.
5. Throughout this request (including these definitions and instructions), the
words “any” and “all” shall be considered to include “each” and “each and every.”
6. Throughout this request (including these definitions and instructions), the
singular of any word shall include the plural, and the plural of any word shall include
the singular. The masculine form shall include the feminine and neutral forms. The
terms “and” and “or” shall mean “and/or” inclusively.
7. Throughout this request (including these definitions and instructions), the
terms “you” and “your” refer to the party responding to the request, as well as his, her,
or its present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on behalf of or
under the control of the responding party.
8. Throughout this request (including these definitions and instructions),
“Defendant” and “Frisco” mean 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian
Steakhouse, a named defendant in this matter. The term “Defendant” or “Frisco” also
includes Defendant’s present and former agents, employees, counselors, consultants,
representatives, attorneys, and any other person or entity acting or purporting to act on
its behalf or under its control.
9. Throughout this request (including these definitions and instructions), the
term “Plaintiff” or “Plaintiffs” means any named Plaintiff in this matter, including their
present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on its behalf or
under their or its control.
10. Throughout this request (including these definitions and instructions),
“Los Cucos” means Los Cucos Mexican Café VIII, Inc. and Los Cucos Mexican Café IV,
5
Exhibit V App. 370
Inc., named defendants in this matter and includes any present and former agents,
employees, counselors, consultants, affiliates, subsidiaries, representatives, attorneys,
and/or any other person or entity acting or purporting to act on the behalf or under the
control of Los Cucos.
11. If you contend that any document requested here need not be produced
under a privilege or other protection against disclosure, provide an itemized log of the
document(s) being withheld from production. In the log, specify the date of each such
document, its author(s), all recipient(s), and any person(s) copied on the document, the
paragraph of this request to which the document responds, and a brief description of
the document’s contents that supplies enough detail to assess the applicability of the
privilege or protection being claimed. In addition, please specify the privilege or
protection upon which you rely as their basis for withholding the document(s) from
production.
12. If you intend to produce any electronic document or information in
response to this request, please contact counsel for Los Cucos to discuss the form in
which such electronic document or information will be produced.
13. If you have any questions about this request, please contact counsel for
Los Cucos promptly for clarification.
14. Unless otherwise stated, the time period covered by this request is January
1, 2010 to the present.
15. You are reminded of your duty under Rule 193.5, Tex. R. Civ. P., to amend
or supplement any response that was incomplete or incorrect when made or that,
although correct and complete when made, is no longer complete and correct.
6
Exhibit V App. 371
REQUESTS FOR ADMISSIONS
Admit or deny the following:
Admission No. 1. 8650 Frisco, LLC received money from Los Cucos Mexican
Café VIII, LLC.
Admission No. 2. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as a loan.
Admission No. 3. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as an investment.
Admission No. 4. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe VIII, LLC.
Admission No. 5. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe VIII, LLC.
Admission No. 6. 8650 Frisco, LLC received money from Los Cucos Mexican
Cafe IV, LLC.
Admission No. 7. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe IV, LLC as a loan.
Admission No. 8. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VI, LLC as an investment.
Admission No. 9. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe IV, LLC.
Admission No. 10. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe IV, LLC.
Admission No. 11. 8650 Frisco, LLC received money from Manuel Cabrera.
Admission No. 12. 8650 Frisco, LLC intended to treat the money it received
from Manuel Cabrera as a loan.
Admission No. 13. Admit that 8650 Frisco, LLC intended to treat the money it
received from Manuel Cabrera as an investment.
Admission No. 14. 8650 Frisco, LLC intended to repay the money it received
from Manuel Cabrera.
7
Exhibit V App. 372
Admission No. 15. 8650 Frisco, LLC did not intend to repay the money it
received from Manuel Cabrera.
Admission No. 16. 8650 Frisco, LLC received money from Sergio Cabrera.
Admission No. 17. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as a loan.
Admission No. 18. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as an investment.
Admission No. 19. 8650 Frisco, LLC intended to repay the money it received
from Sergio Cabrera.
Admission No. 20. 8650 Frisco, LLC did not intend to repay the money it
received from Sergio Cabrera.
Admission No. 21. 8650 Frisco, LLC received equipment from Los Cucos
Mexican Cafe IV, LLC.
Admission No. 22. 8650 Frisco, LLC received furniture from Los Cucos Mexican
Cafe IV, LLC.
Admission No. 23. 8650 Frisco, LLC is currently using equipment it received
from Los Cucos Mexican Cafe IV, LLC.
Admission No. 24. 8650 Frisco, LLC is currently using furniture it received from
Los Cucos Mexican Cafe IV, LLC.
Admission No. 25. 8650 Frisco, LLC is currently using equipment paid for by
from Los Cucos Mexican Cafe IV, LLC.
Admission No. 26. 8650 Frisco, LLC is currently using furniture paid for by Los
Cucos Mexican Cafe IV, LLC.
Admission No. 27. 8650 Frisco, LLC did not pay Los Cucos Mexican Cafe IV,
LLC for any equipment or furniture.
Admission No. 28. Los Cucos Mexican Cafe IV, LLC did not gift furniture to
8650 Frisco, LLC.
8
Exhibit V App. 373
Admission No. 29. Los Cucos Mexican Cafe VIII, LLC did not gift money to
8650 Frisco, LLC.
Admission No. 30. Admit that Manuel Cabrera did not gift money to 8650
Frisco, LLC.
Admission No. 31. Sergio Cabrera did not gift money to 8650 Frisco, LLC.
Admission No. 32. 8650 Frisco, LLC is currently operating at a net profit.
Admission No. 33. 8650 Frisco, LLC is currently operating at a new loss.
Admission No. 34. 8650 Frisco, LLC is currently using the name Estilo Goucho
Brazilian Steakhouse.
Admission No. 35. 8650 Frisco, LLC is has been using the name Estilo Goucho
Brazilian Steakhouse since February, 2013.
Admission No. 36. 8650 Frisco, LLC has assigned, in writing, its rights to the
mark Estilo Gaucho Bazilian Steakhouse to Bahtche, LLC.
Admission No. 37. 8650 Frisco, LLC has not assigned, in writing, its rights to the
mark Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.
Admission No. 38. 8650 Frisco, LLC has received compensation from Bahtche,
LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.
Admission No. 39. 8650 Frisco, LLC has not received compensation from
Bahtche, LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.
Admission No. 40. Estilo Gaucho Brazilian Steakhouse is a trade name of 8650
Frisco, LLC.
Admission No. 41. 8650 Frisco, LLC does business as Estilo Gaucho Brazilian
Steakhouse.
9
Exhibit V App. 374
Requests for Production
Request No. 1. Produce all documents and records provided to or received from
8650 Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA,
Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650
Frisco, LLC.
Request No. 2. Produce all documents and records in the possession of 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.
Request No. 3. Produce all financial records of 8650 Frisco, LLC.
Request No. 4. Produce all accounting records of 8650 Frisco, LLC.
Request No. 5. Produce all bank statements of 8650 Frisco, LLC.
Request No. 6. Produce all point of sale data and reports related to 8650 Frisco,
LLC.
Request No. 7. Produce all tax records (including all 1099 forms, W-2 forms, and
K-1 forms) related to 8650 Frisco, LLC.
Request No. 8. Produce all communications and correspondence with 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.
Request No. 9. Produce all payroll records for 8650 Frisco, LLC.
Request No. 10. Produce all records of money received from any Plaintiff in this
lawsuit.
Request No. 11. Produce all records of money paid or distributed to any Plaintiff
in this lawsuit.
Request No. 12. Produce all correspondence and communications with each
Plaintiff in this lawsuit.
Request No. 13. Produce all agreements, including all drafts of agreements,
between the Parties, which relate in any way to 8650 Frisco, LLC.
10
Exhibit V App. 375
Request No. 14. Produce all leases and related documents (e.g., guarantees),
which relate to the premises currently occupied by 8650 Frisco, LLC.
Request No. 15. Produce all records of financial transactions between 8650
Frisco, LLC and Claudio Nunes.
Request No. 16. Produce all records of financial transactions between 8650
Frisco, LLC and David Jeiel Rodrigues.
Request No. 17. Produce all corporate records of 8650 Frisco, LLC.
Request No. 18. Produce quarterly and annual profit and loss statements for
8650 Frisco, LLC from its creation through the present (update quarterly through trial).
Request No. 19. Produce quarterly and annual balance sheet statements for 8650
Frisco, LLC from its creation through the present (update quarterly through trial).
Request No. 20. Produce all communications and correspondence related to any
of the Plaintiffs in this lawsuit.
Request No. 21. Produce all records of cash receipts and cash deposits for 8650
Frisco, LLC.
Request No. 22. Produce all records, including invoices, for all equipment and
furniture purchased for use by 8650 Frisco, LLC.
Request No. 23. Produce all documents which reflect or relate to the application
to the United States Patent and Trademark office for the mark Estilo GAucho Brazilian
Steakhouse.
Request No. 24. Produce the assignment of ownership rights for the mark Estilo
Gaucho Brazilian Steakhouse to Bahtche, LLC.
Request No. 25. Produce documents reflecting the exchange of compensation by
and between 8650 Frisco, LLC and Bahtche, LLC, related to the mark Estilo Gaucho
Brazilian Steakhouse.
11
Exhibit V App. 376
FIRST SET OF INTERROGATORIES
Interrogatory No. 1. Identify and explain in detail the terms upon which Los
Cucos Mexican Cafe VIII, LLC provided money to 8650 Frisco, LLC.
Interrogatory No. 2. If you contend that the money provided to 8650 Frisco, LLC
by Los Cucos Mexican Cafe VIII, LLC was a loan, describe in detail the basis of that
contention and terms of the loan.
Interrogatory No. 3. If you contend that they money provided to 8650 Frisco,
LLC by Los Cucos Mexican Cafe VIII, LLC was an investment, describe in detail the
basis of that contention and terms of the investment.
Interrogatory No. 4. Identify and describe in detail the equipment and
furnishings provided to 8650 Frisco, LLC by Los Cucos Mexican Cafe, IV.
Interrogatory No. 5. If you contend that the parties had an agreement as to 8650
Frisco, LLC’s use of the equipment and furniture provided to 8650 Frisco, LLC by Los
Cucos Mexican Cafe, IV, identify and describe in detail the basis of that contention and
terms of the agreement.
Interrogatory No. 6. Identify and describe in detail the source, date of purchase,
and cost of all equipment and furnishings used at 8650 Frisco, LLC.
Interrogatory No. 7. Detail the circumstances and terms under which the mark
Estilo Gaucho Brazilian Steakhouse was transferred to Bahtche, LLC.
12
Exhibit V App. 377
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFE § IN THE DISTRICT COURT OF
VIII, INC., LOS CUCOS MEXICAN §
CAFE IV, INC., MANUEL §
CABRERA, and SERGIO §
CABRERA §
PLAINTIFFS, §
§
V. § HARRIS COUNTY, TEXAS
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN §
STEAKHOUSE,MANDON~ §
LLC,GALOVELHO,LLC, §
BAHTCHE, LLC, CLAUDIO §
NUNES and DAVID JEIEL §
RODRIGUES §
DEFENDANTS. § 133rd JUDICIAL DISTRICT
DEFENDANT 8650 FRISCO LLC'S RESPONSES TO
PLAINTIFF'S FIRST REQUEST FOR PRODUCTION
To: Plaintiffs, Los Cucos Mexican Cafe VIII, Inc., Los Cucos Mexican Cafe IV,
Inc., Manuel Cabrera, and Sergio Cabrera, by and through their attorney of
record, Kelly Stephens, P.O. Box 79734, Houston, Texas 77279.
Defendants, 8650 Frisco, LLC, serves these responses to Plaintiff's request
for production.
RESPONSES TO REQUESTS
Request No. 1: Produce all documents and records provided to or received
from 8650 Frisco, LLC's accountants (including, but not limited to Mike
Verucchi, CPA, Holtmann & Company, LLC, or Hal Holtman, CPA), which
relate in any way to 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request seeks
information that is privileged. See Tex. Occ. Code § 901.457(a); see also
O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
foregoing objection, and without waiving the same, documents responsive to
Exhibit V
Exhibit 2 Ohio App. 378
 this request are being produced.
Request No.2: Produce all documents and records in the possession of 8650
Frisco, LLC's accountants (including, but not limited to Mike Verucchi, CPA,
Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to
8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request seeks
information that is privileged. See Tex. Occ. Code § 901.457(a); see also
O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
foregoing objection, and without waiving the same, documents responsive to
this request are being produced.
Request No. 3: Produce all financial records of 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overly
broad and seeks information that is not relevant to this matter. Defendant
further objects as this request is not narrowly tailored to a specific time, scope
or subject matter. Subject to the foregoing objection, and without waiving the
same, relevant documents responsive to this request will we produced as
requested.
Request No.4: Produce all accounting records of 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request seeks
information that is privileged. See Tex. Occ. Code § 901.457(a); see also
O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
foregoing objection, and without waiving the same, documents responsive to
this request are being produced.
Request No. 5: Produce all bank statements of 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant objects to
Exhibit V App. 379
this request as it is an improper method to request records of a financial
institution. Tex. Fin. Code § 59.006.
Request No. 6: Produce all point of sale data and reports related to 8650
Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects as this information contains information related to customer's accounts
and disclosure would subject Defendant to liability from customers whose data
was released.
Request No.7: Produce all tax records (including all1 099 forms, W-2 forms,
and K-1 forms) related to 8650 Frisco, LLC.
RESPONSE: OBJECTION. Defendant objects to this request as it is
harassing, irrelevant, and confidential by statute. 26 USC §61 03.
Request No.8: Produce all communications and correspondence with 8650
Frisco, LLC's accountants (including, but not limited to Mike Verucchi, CPA,
Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to
8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request seeks
· information that is privileged. See Tex. Occ. Code § 901.457(a); see also
O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
foregoing objection, without waiving the same, documents responsive to this
request are being produced.
Request No. 9: Produce all payroll records for 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects to this request as it seeks confidential information related to third
parties and is only being requested for harassment purposes.
Request No. 10: Produce all records of money received from any Plaintiff in
Exhibit V App. 380
this lawsuit.
RESPONSE:
OBJECTION. Defendant objects on the grounds that documents sought relate
to information that is already available to Plaintiff and is in plaintiffs
possession, custody, and control.
Request No. 11: Produce all records of money paid or distributed to any
Plaintiff in this lawsuit.
RESPONSE:
None.
Request No. 12: Produce all correspondence and communications with each
Plaintiff in this lawsuit.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Further, the
documents requested can be easily obtained by Plaintiff as Plaintiff is aware
of all correspondence and communication with Defendant. Plaintiffs were
parties to any communication between Plaintiffs and Defendants. Subject to
the foregoing objection, and without waiving the same, relevant documents
responsive to this request will we produced as requested.
Request No. 13: Produce all agreements, including all drafts of agreements,
between the Parties, which relate in any way to 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects as this information is work product and privileged. Furthermore,
Defendant objects to this request as any alleged agreements are in the
possession of Plaintiffs and may easily be obtained by Plaintiffs through a
search of their own records. Subject to the foregoing objection, and without
waiving the same, relevant documents responsive to this request will we
produced as requested.
Request No. 14: Produce all leases and related documents (e.g.,
Exhibit V App. 381
guarantees), which relate to the premises currently occupied by 8650 Frisco,
LLC.
RESPONSE:
Subject to the foregoing objection, and without waiving the same, relevant
documents responsive to this request will we produced as requested.
Request No. 15: Produce all records of financial transactions between 8650
Frisco, LLC and Claudio Nunes.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects to this request as it is not narrowly tailored and fails to define the
request in terms of scope, subject matter, or time.
Request No. 16: Produce all records of financial transactions between 8650
Frisco, LLC and David Jeiel Rodrigues.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects to this request as it is not narrowly tailored and fails to define the
request in terms of scope, subject matter, or time.
Request No. 17: Produce all corporate records of 8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects to this request as it is confidential. Subject to the foregoing objection,
and without waiving the same, relevant documents responsive to this request
will we produced as requested.
Request No. 18: Produce quarterly and annual profit and loss statements for
8650 Frisco, LLC from its creation through the present (update quarterly
through trial).
Exhibit V App. 382
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant objects to
this request as it exceeds duty imposed on Defendant under Tex. R. Civ. P.
196.1 & 192.3.
Request No.19: Produce quarterly and annual balance sheet statements for
8650 Frisco, LLC from its creation through the present (update quarterly
through trial).
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant objects to
this request as it exceeds duty imposed on Defendant under Tex. R. Civ. P.
196.1 & 192.3.
Request No. 20: Produce all communications and correspondence related to
any of the Plaintiffs in this lawsuit.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is duplicative
of request for production no. 12. Defendant further objects as this request is
vague, overly burdensome, lacks specificity, fails to limit the request based
upon time, scope, or subject matter. Defendant further objects as this request
will not result in discoverable information. Defendant further objects as this
request seeks to invade the attorney client privilege.
Request No. 21: Produce all records of cash receipts and cash deposits for
8650 Frisco, LLC.
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects as this request is overly burdensome, harassing and will not result in
production of discoverable information. Subject to the foregoing objection, and
without waiving the same, relevant documents responsive to this request will
we produced as requested.
Request No. 22: Produce all records, including invoices, for all equipment
and furniture purchased for use by 8650 Frisco, LLC.
Exhibit V App. 383
RESPONSE:
OBJECTION. Defendant objects on the grounds that this request is overbroad
and seeks information that is not relevant to this matter. Defendant further
objects to this request as it is vague, lacks specificity, and is not narrowly
tailored by time, scope or subject matter. Defendant further objects to this
request as it is overly burdensome to require Defendant to scour its records
for every purchase of nuts, bolts, bottles, cans, and bottle openers that it may
have acquired during the operation of the restaurant. Subject to the foregoing
objection, and without waiving the same, relevant documents responsive to
this request will we produced as requested.
Request No. 23: Produce all documents which reflect or relate to the
application to the United States Patent and Trademark office for the mark
Estilo Gaucho Brazilian Steakhouse.
RESPONSE:
None.
Request No. 24: Produce the assignment of ownership rights for the mark
Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.
RESPONSE:
None.
Request No. 25: Produce all documents reflecting the exchange of
compensation by and between 8650 Frisco, LLC and Bahtche, LLC, related
to the mark Estilo Gaucho Brazilian Steakhouse.
RESPONSE:
None.
Respectfully submitted, MOSSER LAW PLLC,
By· lsi Nicholas D Masser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Exhibit V App. 384
Texas Bar No. 24075405
Benjamin Casey
Texas Bar No. 24087267
17110 Dallas Parkway Suite 290
Dallas, TX 75248
Tel. (972) 733-3223
Fax. (972) 267-5072
courtdocuments@mosserlaw.com
Lawyers for Defendants
CERTIFICATE OF SERVICE
I certify that on May 14, 2014, a true and correct copy of this document was
served to the following pursuant to Texas Rules of Civil Procedure 21 & 21 (a).
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
Is/ Nicholas D. Mosser
By: Nicholas D. Mosser
Exhibit V App. 385
MOTION TO COMPEL
1
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
2 TRIAL COURT CAUSE NO. 2014-10896
3
4 LOS CUCOS MEXICAN CAFE VIII( IN THE DISTRICT COURT OF
INC.;LOS CUCOS MEXICAN (
5 CAFE IV,INC.; MANUEL (
CABRERA;AND SERGIO CABRERA (
6 (
VS. ( HARRIS COUNTY, TEXAS
7 (
8650 FRISCO,LLC D/B/A ESTILO
8 GAUCHO BRAZILIAN (
STEAKHOUSE; MANDONA,LLC; (
9 GALOVELHO,LLC;BAHTCHE, (
LLC; CLAUDIO NUNES; AND (
10 DAVID JEIEL RODRIGUES ( 133rd JUDICIAL DISTRICT
11 _______________________________________________________
12
MOTION TO TRANSFER
13 _______________________________________________________
14
15 On the 23rd day of June, 2014, the following
16 proceedings came on to be held in the above-titled and
17 numbered cause before the Honorable JACLANEL McFARLAND,
18 Judge Presiding, held in Houston, Harris County, Texas.
19 Proceedings reported by computerized stenotype
20 machine.
21
22
23 DARLENE STEIN
OFFICIAL COURT REPORTER
24 133RD DISTRICT COURT
HARRIS COUNTY, TEXAS
25
DARLENE STEIN
Exhibit V
Exhibit 3 Ohio App. 386
 MOTION TO COMPEL
2
1 APPEARANCES
2 Mr. Andrew K. Meade
SBN 24032854
3 Mr. Samuel B. Haren
SBN 24059899
4 2118 Smith Street
Houston, Texas 77002
5 Telephone: (713)658-9001
Telephone: (713)658-9011 (Fax)
6 Attorney for Plaintiffs
7
Mr. Nicholas D. Mosser
8 SBN 24075405
Mr. James Mosser
9 SBN 00789784
17110 Dallas Parkway, Suite 290
10 Dallas, Texas97 75248
Telephone:) (972)733-3223
11 Telephone: (972)267-5072
Attorney for Defendants
12
13
14
15
16
17
18
19
20
21
22
23
24
25
DARLENE STEIN
Exhibit V App. 387
MOTION TO COMPEL
3
1 CHRONOLOGICAL INDEX
2 June 23, 2014
3 PAGE
4 Proceedings............................... 4
5 Argument by Mr. Meade..................... 6
6 Argument by Mr. Mosser.................... 11
7 Proceedings concluded..................... 25
8 Reporter's Certificate.................... 26
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
DARLENE STEIN
Exhibit V App. 388
MOTION TO COMPEL
4
1 (P R O C E E D I N G S)
2 June 23, 2014
3
4 THE COURT: This is Cause No. 2014-10896.
5 And if everyone would announce who they are and who they
6 represent, please.
7 MR. MEADE: Andrew Meade and Sam Haran for
8 the Plaintiffs.
9 THE COURT: Mr. Mosser, if you'll announce
10 who you are and who you represent, please.
11 MR. MOSSER: I'm sorry?
12 THE COURT: Announce who you are and who
13 you represent.
14 MR. MOSSER: Yes, ma'am. This is James
15 Mosser, Mosser Law Firm, PLLC, appearing telephonically
16 on behalf of all Defendants.
17 THE COURT: Okay. I will tell you that I
18 don't have the motions in front of me. My law clerks
19 have gone to get them. For some reason, even though you
20 are on the docket, they thought it had been pulled. So,
21 anyway, but I'm going to let y'all go ahead and start. I
22 think it's Plaintiff's motions. So, I'm going to let
23 them go ahead and start while the law clerks are bringing
24 in the actual written motions.
25 MR. MEADE: All right. Your Honor, if
DARLENE STEIN
Exhibit V App. 389
MOTION TO COMPEL
5
1 you'll recall, this is a -- my client supplied about
2 $950,000 in some equipment for a restaurant --
3 MR. MOSSER: Your Honor, if he could get
4 closer to the microphone or speak up louder, it would be
5 easier to hear.
6 THE COURT: Yeah. Well, I'll put the
7 phone a little closer. But, you know, have you got a
8 storm in Dallas? Is that the problem or what? You know,
9 when you don't show up, it's -- we can only do the best
10 we can do.
11 You know, that's why when I practiced law,
12 I didn't depend on Southwest. Now, going to committee
13 meetings, I depended on Southwest a lot. I was on a lot
14 of Baptist boards that met over on North Washington, the
15 Baptist building. But when I had a case, I usually drove
16 down the night before or drove up or drove west or east or
17 wherever I was going.
18 MR. MEADE: And -- and for convenience,
19 Your Honor, we will try to set hearings in the case on
20 Fridays and Mondays to make that more convenient.
21 THE COURT: Well, we don't have hearings
22 on Fridays. So, they have to be on Mondays.
23 MR. MEADE: Mondays.
24 And so, the situation that we've got
25 here -- Your Honor will recall that we had previously
DARLENE STEIN
Exhibit V App. 390
MOTION TO COMPEL
6
1 noticed depositions for early May of the Defendants, that
2 those depositions had been quashed. So, we set a Motion
3 to Compel. The Court ordered the depositions to occur in
4 June. We agreed on dates that were put into the Court's
5 order, which was June 9th and 10th for six depositions to
6 occur.
7 On the Sunday before -- June 9th was a
8 Monday. 10th was a Tuesday. On the Sunday before,
9 Mr. Mosser left a message on Mr. Stephen's phone, saying
10 that he wouldn't be attending the depositions nor would
11 his clients because -- and they subsequently filed a
12 motion. Mr. Mosser apparently has a nervous system injury
13 of some sort that he came down with the day before the
14 depositions. And there is nobody else within his
15 four-person law firm who's qualified to sit in a chair and
16 defend a deposition.
17 He then went and set his Motion to Transfer
18 Venue, offered us some dates in late July that -- or --
19 that conflict with a trial that I have in Judge
20 Englehart's court. And then when I rejected those dates,
21 offered dates in August.
22 And we have run into a problem now, which
23 is that I leave the country on Saturday for two and a half
24 weeks. I get back and have five days to prepare for a
25 week-long trial in Judge Englehart's court. And then at
DARLENE STEIN
Exhibit V App. 391
MOTION TO COMPEL
7
1 the end of the week that I'm in trial with Judge Englehart
2 is their Motion to Transfer Venue. We have taken the
3 position, which is correct under the rules, that discovery
4 should not be and cannot be, in fact, abated while a
5 Motion to Transfer Venue is pending.
6 They have taken the position and even set
7 for today and then withdrew a Motion to Stay all
8 proceedings while they have the opportunity to have that
9 Motion to Transfer Venue heard.
10 We're going to have to take these
11 depositions before the Motion to Transfer Venue hearing.
12 We need them ordered and compelled, and we need the Motion
13 to Transfer Venue hearing pushed back till that can
14 happen.
15 But we also need Mr. Mosser or his clients
16 to pay the costs of the depositions that were ordered -- I
17 took Certificates of Nonappearance on all six
18 depositions -- and that they ought to have to bear the
19 cost on each of those.
20 The next issue that we have is as you'll
21 recall, we have an accountant that worked for the company
22 in New Braunfels and then a new accountant in Dallas. We
23 had the -- the letter and correspondence where they said,
24 you know, turn over all records and destroy all in your
25 possession. And -- and we had to move to compel the
DARLENE STEIN
Exhibit V App. 392
MOTION TO COMPEL
8
1 accountant to produce the records from New Braunfels, and
2 he did produce the records to us.
3 But we have also asked for certain
4 financial records, including tax records and other
5 financial documents from the Defendants themselves; and
6 soon we will -- and, also, their new accountant, who will
7 soon have to come down on a Motion to Compel, as well,
8 although that's not part of today.
9 The -- the other issue that is part of
10 today is their responses and objections to our requests
11 for production, which deal with the financial and tax
12 records.
13 Starting with the tax records, there are
14 numerous reasons why as members of the company and --
15 that -- that we're entitled to the tax records of an LLC.
16 First of all, the statute allows it.
17 Second, we need to prepare our own tax
18 returns.
19 Third, how they chose to characterize our
20 capital contributions, the proportion of what is
21 characterized as a loan and capital contribution and all
22 of that is going to be relevant to the parties' agreement
23 or disagreement about our membership status and -- and how
24 much money is owed in terms of -- our position is that
25 part of the money was loaned and part of it was a capital
DARLENE STEIN
Exhibit V App. 393
MOTION TO COMPEL
9
1 contribution, and -- and they may or may not disagree,
2 although they haven't disclosed their theory of the case
3 to us at all in any way. That will be relevant, those tax
4 records.
5 The other financial records, which include
6 bank account statements, we're -- we're entitled to the
7 books and records, again, of the company; but, also, these
8 bank account statements are going to be relevant to
9 whether distributions -- because under the -- under the
10 limited liability company act, under the partners' oral
11 agreement, and under the written agreements that were
12 exchanged, we would be entitled to distributions of
13 distributable cash.
14 None have been made to us. We believe some
15 have been made to the Defendants, substantial
16 distributions, and that there is distributable cash. We
17 believe that, but we don't have the records to show it,
18 and the bank statements will go a long ways towards that.
19 What we've met with to date is an objection
20 every step of the way and resistance even to Court-ordered
21 depositions. And -- and the objection that was made, for
22 example, to the accountant's records was that objection of
23 privilege that the Texas courts don't recognize. Well, it
24 was made again in response to requests for production
25 after the Court had already ruled on the objection in
DARLENE STEIN
Exhibit V App. 394
MOTION TO COMPEL
10
1 relation to the accountant.
2 They made other objections; for example,
3 objecting that the Texas Finance Code provides the
4 exclusive means to get bank account statements, even bank
5 account statements of a party. I -- I assure you that I
6 will go to the bank, under the Texas Finance Code, and get
7 the bank statements separately. But that doesn't
8 alleviate the obligation of a party to produce those bank
9 statements.
10 So, a recommendation in -- in one of my
11 motions is really -- it's really -- we're asking for the
12 relief but sort of recommending a path for the Court,
13 would be to appoint a discovery master in the case. I
14 don't mind coming down here once a week, and I suspect we
15 will be back here again in a week. And I'll tell you why.
16 You know, we had these grills. I -- I
17 don't know if you remember the -- the unique grills.
18 Well, we have reason to believe that the grills have been
19 destroyed. And I've asked for an inspection of the
20 collateral, of -- of the property. They haven't responded
21 to it. I'm going to be asking the Court for it and
22 probably having to move it to compel.
23 When these depositions do occur, I suspect
24 I'm going to meet with a series of objections and probably
25 instructions to the witness not to answer and that sort of
DARLENE STEIN
Exhibit V App. 395
MOTION TO COMPEL
11
1 thing. And I -- and we can have the depositions in your
2 chambers. I leave it to the Court's discretion of how we
3 deal with these issues; but I would rather, if we can
4 avoid it -- and I -- I know that judges, including
5 yourself, don't like us coming down here all the time on
6 Motions to Compel. I would like to avoid them, if
7 possible. And so, the appointment of a discovery master
8 is one suggestion to do that.
9 And I'll let Mr. Mosser respond.
10 THE COURT: Mr. Mosser?
11 MR. MOSSER: Yes, ma'am.
12 THE COURT: You may respond.
13 Hello?
14 MR. MOSSER: Yes, ma'am. I'm right here.
15 THE COURT: Where -- you want to respond?
16 MR. MOSSER: Oh, yes, ma'am. I surely
17 will. Thank you.
18 May it please the Court? Let me go
19 backwards a little bit here. Let's start with the grills
20 are being destroyed, which is a false statement made by
21 counsel. It has become custom in this case. The problem
22 is we sent notice to counsel that he should come and pick
23 up the grills, and counsel told us they weren't going to
24 pick up the grills.
25 So, we told them if they leave the grills
DARLENE STEIN
Exhibit V App. 396
MOTION TO COMPEL
12
1 that they claim they loaned to my clients, we told them,
2 If you don't pick them up, we'll just put them in storage;
3 and you can pay the storage bill when you get here.
4 Nobody said they were going to destroy them, and it's just
5 outrageous that he would say those kinds of things.
6 As for bank accounts, the Finance Code does
7 provide the method by which he can obtain the bank
8 accounts. But let's assume he doesn't want to do that and
9 I'm required to deliver bank accounts. If the Court will
10 recall, he mentioned that he held a deposition on written
11 questions for Mr. -- I can't remember the accountant's
12 name -- Hal Holtman, I think -- to produce all the records
13 he had related to anything with my clients.
14 Now, if you will recall from the -- the
15 Temporary Injunction hearing, Mr. Holtman went and
16 testified on everything we told him he shouldn't be
17 testifying on; and then he subsequently, based on comment
18 from counsel this morning, delivered all the documents he
19 had to the Plaintiff's lawyers in this case. That
20 includes the tax returns, all bank statements, all the
21 income statements, all the financial statements,
22 everything related to the business until Mr. Holtman was
23 fired.
24 Now, the Court ordered that. Mr. Holtman
25 turned them over, over our objection. So, I don't think
DARLENE STEIN
Exhibit V App. 397
MOTION TO COMPEL
13
1 that we're required to produce records in a duplicitous
2 manner that have already been produced by the accountant
3 in this case.
4 And, secondly, those documents were
5 produced to opposing counsel who has yet to this day
6 served them on us. When he gets discovery from whatever
7 source it's from, he's required to serve everybody in the
8 lawsuit, all parties, a copy of that discovery. He has
9 not done so. So, I don't have any.
10 Going back to the top of the complaint from
11 opposing counsel, I'm 69 years old; and I can't help it if
12 my sacral iliac joint gets sprained, inflamed, bruised,
13 and strained. I can't do anything about that. We
14 immediately notified, upon determination that I was
15 immobile, that this deposition had to be reset or
16 postponed.
17 I think it's outrageous that I can't even
18 pick up the phone and call a counsel for a medical problem
19 that he won't reset depositions for or even respond to the
20 telephone calls. I think it's outrageous that they file
21 motions claiming that they've had a conference with
22 opposing counsel, which is plainly false. They didn't
23 have any conference with us. In fact, they filed these
24 motions and then claimed that they had a conference after
25 they filed the motion.
DARLENE STEIN
Exhibit V App. 398
MOTION TO COMPEL
14
1 As for offering dates, we offer to set a
2 date in July; and understanding trial schedules, as I do,
3 I was required to file a Motion to Continuance on -- let's
4 see -- that date that he wanted to do these, the 16th,
5 17th, somewhere in there because I had a special setting.
6 I had to go into that court and request the Court reset
7 the special setting in that case because of my sacral
8 iliac sprain.
9 I don't under -- I suppose five years ago
10 when I had my quadruple bypass surgery, opposing counsel
11 would complain because that was just an excuse. These are
12 not excuses. These are real-live things. We've offered a
13 second set of dates. Counsel didn't even respond to them.
14 Now, counsel also says that we don't -- we
15 should take depositions to get proof for the Motion to
16 Transfer Venue. I don't think the Motion to Transfer
17 Venue is set for today, but he puts it in his -- in his
18 response or his Third Amended Motion to Compel, and I
19 don't understand. He believes that the testimony given in
20 open court on the record and sworn to by his clients can't
21 be used in Motion to Transfer Venue. At some point in
22 time, the Court will have to rule on that motion; and I
23 will be happy to defend that issue.
24 As for costs, counsel fails to properly
25 prepare any cost statements, hasn't made any cost
DARLENE STEIN
Exhibit V App. 399
MOTION TO COMPEL
15
1 statements, hasn't suffered from any problems other than
2 my sacral iliac joint sprain; and I don't think he would
3 like me sitting in his conference room, taking the
4 narcotics that I was taking and the side effects that go
5 with it.
6 So, he has all of the financial records we
7 believe that exist, delivered by Holtman over our
8 objection. He did not properly serve the accountant --
9 the new accountant in Texas, which is more than 150 miles
10 and -- away, and he doesn't have a right to get anything
11 from him.
12 And as for tax records from the LLC,
13 they're not members. They never have been members.
14 They're not members. They rejected the opportunity to
15 become a member, and that's clear testimony in the
16 Temporary Injunction hearing.
17 So, I think I've covered the waterfront.
18 But as far as tax returns, the State of Texas has made
19 very clear by the Supreme Court and the Court of Appeals
20 in Houston -- I think every Court of Appeals has said it
21 is an abuse of discretion requiring the disclosure of
22 Federal income tax returns if other documents can provide
23 the information necessary.
24 But in order to even search out and get
25 that information, opposing counsel is required to provide
DARLENE STEIN
Exhibit V App. 400
MOTION TO COMPEL
16
1 the relevancy and materiality that's necessary as to his
2 claims. He has none. He hasn't presented any. He hasn't
3 asked for any. He hasn't said a single word that shows
4 that a tax return, a financial statement, or any of these
5 other intrusive and burdensome matters are necessary for
6 his claims. And the Court should deny his motions in
7 total.
8 Thank you.
9 THE COURT: When do you want to take the
10 depositions?
11 MR. MEADE: Well --
12 MR. MOSSER: I'm sorry, Judge?
13 THE COURT: I'm -- I'm asking your
14 opposing counsel when he wants to take the depositions.
15 MR. MEADE: I knew you were going to ask
16 that, and I think the simplest answer to that is before
17 the Motion to Transfer Venue is heard.
18 THE COURT: Okay.
19 MR. MEADE: The more complex answer is
20 after the week of the 21st of July because I have a trial
21 that entire week. But we are set number one. So, we
22 will go; and I will be done that week because it's a
23 breach of contract case.
24 So, following that week, I only have one
25 day that I have a -- I have a deposition currently set
DARLENE STEIN
Exhibit V App. 401
MOTION TO COMPEL
17
1 that I'm defending on the 28th of July. Otherwise, I am
2 wide open to -- to take these depositions.
3 THE COURT: Okay. Counsel, you heard
4 that, I assume. So, pick a date after his trial in Judge
5 Englehart's court and not on July -- what?
6 MR. MEADE: 28th.
7 THE COURT: -- 28th that you can produce
8 your people for depositions.
9 MR. MOSSER: I'm looking at the calendar
10 now, Judge.
11 THE COURT: Okay.
12 MR. MOSSER: I would recommend August 4th
13 and 5th, and I -- I would like to also add, Judge, that
14 four of the depositions that were set, two of them -- on
15 two separate days, two of them were set at exactly the
16 same time. And then the next day, two more were set at
17 exactly the same time, which I would discourage that
18 concept as appropriate.
19 MR. MEADE: And -- and here would be my
20 response. If Mr. Mosser would cooperate with me --
21 MR. MOSSER: But the 4th and the 5th are
22 good with me, Judge.
23 MR. MEADE: If Mr. Mosser would cooperate
24 with me a little bit and let me know -- these are an
25 individual -- two individuals and four corporate
DARLENE STEIN
Exhibit V App. 402
MOTION TO COMPEL
18
1 representatives who may be, and I suspect will be, those
2 same individuals -- could all be taken possibly at the
3 same time or concurrently with each other. But
4 Mr. Mosser hasn't identified who are -- who's going to be
5 the corporate representative. So, I don't know how else
6 to do it.
7 If he will identify who will be the
8 corporate representatives for those entities, I will
9 notice the -- the depositions so that they don't conflict
10 timewise with one other another.
11 MR. MOSSER: As you previously noticed,
12 the doc -- the areas of inquiry, Mr. Rodriguez will be
13 the deponent.
14 MR. MEADE: On all, Mr. Mosser?
15 MR. MOSSER: Yes.
16 MR. MEADE: Okay. Then I will -- I will
17 set it up so that they don't conflict with one another.
18 MR. MOSSER: Thank you.
19 THE COURT: Okay. So, pick, the 4th of
20 the 5th of August?
21 MR. MEADE: It will be both, Your Honor.
22 THE COURT: Oh, both.
23 MR. MEADE: Yeah.
24 THE COURT: Okay. All right. The
25 depositions are set for the 4th and the 5th. And
DARLENE STEIN
Exhibit V App. 403
MOTION TO COMPEL
19
1 Plaintiff's counsel will send notice, but they are now
2 set. He'll send notice as to time and place, I assume,
3 which I assume you've already -- where -- where are they
4 going to be?
5 MR. MEADE: Well, as Mr. Mosser doesn't
6 have an office here in Houston --
7 THE COURT: Okay.
8 MR. MEADE: -- I'm just going to do them
9 at my offices here in Houston, Your Honor.
10 THE COURT: Right. And I presume that's
11 okay with you, Mr. Mosser?
12 MR. MOSSER: Oh, yes, ma'am, that's fine
13 with me.
14 THE COURT: Okay. Now, as to fees of the
15 nonappearance, I'm not going to order anything at this
16 time. I will consider it later as the case progresses,
17 depending on how discovery goes. So, I will just hold
18 that under advisement.
19 What else was there?
20 MR. MEADE: The objections, which I think
21 lie in the Third Motion to Compel, which are Motions to
22 Compel the responses to discovery that ask for a
23 variety -- it's -- it's a variety of financial
24 information, including bank statements and -- and tax
25 returns.
DARLENE STEIN
Exhibit V App. 404
MOTION TO COMPEL
20
1 THE COURT: Mr. Mosser, have -- does your
2 client have the bank statements?
3 MR. MOSSER: I'm sorry, Judge?
4 THE COURT: Does your client have the bank
5 statements?
6 MR. MOSSER: I think Mr. Holtman has them,
7 and opposing counsel has collected everything Holtman
8 has. And I would like the Court to order opposing
9 counsel to deliver those documents that he got from the
10 third-party witness Holtman to us.
11 THE COURT: Well, let me ask -- that --
12 that wasn't my question.
13 MR. MOSSER: I understand.
14 THE COURT: My question is: Does your
15 client have them?
16 MR. MOSSER: No. I think -- I think
17 Holtman has them all.
18 THE COURT: So, your client didn't keep a
19 copy?
20 MR. MOSSER: Nobody sends out copies of
21 bank statements any more, Judge.
22 THE COURT: Sure they do. I get them
23 every month.
24 MR. MOSSER: I appreciate that, Your
25 Honor. Let me put it a different way. Many businesses
DARLENE STEIN
Exhibit V App. 405
MOTION TO COMPEL
21
1 do not get bank statement in paper form.
2 THE COURT: Well, do they get them
3 electronically where they can print them out?
4 MR. MOSSER: My understanding, Your Honor,
5 is that Holtman has all the bank statements.
6 THE COURT: So, your client doesn't get
7 the e-mail saying, Your bank statement is ready to be
8 printed out; or they can't go in and print it out?
9 MR. MOSSER: I haven't made that
10 particular inquiry.
11 THE COURT: Yeah.
12 MR. MOSSER: Because they're with the bank
13 and the accountant.
14 THE COURT: Well, my guess is your client
15 has access to them by -- if they -- if they're not like
16 me and they don't pay to get a paper statement or get a
17 paper statement, they get an e-mail saying, Your bank
18 statement is online. And you just log in, and you can
19 print it out.
20 MR. MOSSER: I understand what the Court
21 is saying, but my suggestion is that they already have
22 all of that stuff. They got it from Holtman.
23 MR. MEADE: Your Honor, if I -- if I could
24 add one -- as Your Honor may recall, they -- the
25 Defendants fired Mr. Holtman, who is the CPA, from the
DARLENE STEIN
Exhibit V App. 406
MOTION TO COMPEL
22
1 company in March, terminated my client's access and his
2 access to all of the bank accounts. Then -- then hired a
3 new accountant located up in Dallas and identified him as
4 the new CPA, to which Holtman was supposed to and did
5 send all of the information.
6 As far as account statements, the -- it's
7 an ongoing duty, in fact, and they -- they have the
8 duty -- even if, in fact, we had gotten all of the
9 information and -- and Mr. Mosser has just said he doesn't
10 actually know what we've gotten. Even if had gotten all
11 of the information, it wouldn't alleviate their
12 responsibility to produce it, too, because, for example,
13 we might be missing a page of a bank statement. We might
14 want to use a 173, you know, authentication means for the
15 documents.
16 But there are certainly post termination of
17 Mr. Holtman, zero financial records that we have access to
18 but that the Defendants have access, custody, and control
19 over those documents exclusively; and that's what we're
20 asking for.
21 THE COURT: Okay. So --
22 MR. MEADE: Their current accountant has
23 all of it, and they have all of it.
24 THE COURT: All right.
25 MR. MOSSER: Well, we don't really know
DARLENE STEIN
Exhibit V App. 407
MOTION TO COMPEL
23
1 that.
2 THE COURT: Well, I'm going to overrule
3 your objections and tell you to produce it if it's
4 available to you.
5 MR. MOSSER: From the time that Holtman
6 was terminated? Because they already have everything
7 else.
8 THE COURT: No. Just from what they've
9 requested.
10 MR. MOSSER: And will you order them to
11 deliver us what Holtman has?
12 MR. MEADE: I don't need to be ordered to,
13 Your Honor. I will -- I haven't had him even ask me. If
14 you send me a letter asking for it --
15 THE COURT: Well, he's asking now. Send
16 it to him.
17 MR. MEADE: I'll send it to him, Your
18 Honor.
19 THE COURT: Yeah. I'm not going to order
20 him, but he -- he said on the record now he's going to
21 send you copies of it.
22 MR. MEADE: Well, in fact, if it's
23 easiest, I will upload it onto FPT link; and you can
24 download it from your computer today.
25 THE COURT: You want to do that, Counsel?
DARLENE STEIN
Exhibit V App. 408
MOTION TO COMPEL
24
1 MR. MOSSER: Which kind of link?
2 THE COURT: I don't know. It's over my
3 head.
4 MR. MEADE: I will suggest a couple of
5 means by which I can deliver the documents to you,
6 Mr. Mosser.
7 THE COURT: He will -- he will get them to
8 you.
9 MR. MEADE: You can choose the most
10 convenient means to you.
11 THE COURT: Okay. On the -- I've looked
12 at the interrogatories, your objections are overruled.
13 What else have we got?
14 MR. MEADE: The requests for production
15 objections that were --
16 THE COURT: Yeah, and they're overruled,
17 also.
18 Anything else?
19 MR. MEADE: And -- nothing else unless
20 Your Honor -- and I -- and from what Your Honor said
21 earlier, I think you're not inclined to appoint a master
22 at this --
23 THE COURT: I'm not.
24 MR. MEADE: -- point in the discovery.
25 So, I won't --
DARLENE STEIN
Exhibit V App. 409
Motion to Compel
25
1 THE COURT: And we will reset --
2 MR. MEADE: -- belabor the point.
3 THE COURT: -- the motion for change of
4 venue until after the deposition.
5 MR. MEADE: Thank you, Your Honor.
6 Nothing else today.
7 THE COURT: Anything else?
8 MR. MOSSER: No, Your Honor.
9 THE COURT: Counsel, I hope you feel
10 better. I know --
11 MR. MOSSER: Thank you very much, Judge.
12 THE COURT: I know how it feels to get
13 older, but...
14 MR. MOSSER: I appreciate it, Judge.
15 THE COURT: Okay. Thank you.
16 MR. MOSSER: Yes, ma'am.
17 MR. MEADE: Thank you. Have a good week,
18 Your Honor.
19 THE COURT: Thank you.
20 (Proceedings concluded.)
21
22
23
24
25
DARLENE STEIN
Exhibit V App. 410
Motion to Compel
26
1 STATE OF TEXAS
2 COUNTY OF HARRIS
3 I, DARLENE STEIN, Official Court Reporter in and
4 for the 133rd District Court of Harris, State of
5 Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested
8 in writing by counsel for the parties to be included
9 in this volume of the Reporter's Record in the
10 above-styled and numbered cause, all of which
11 occurred in open court or in chambers and were
12 reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, offered by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $312.00 and
18 was paid by Mr. Andrew Meade.
19
/s/Darlene Stein_________
20 DARLENE STEIN, CSR
Texas CSR 2557
21 Official Court Reporter
133rd District Court
22 Harris County, Texas
201 Caroline, 11th Floor
23 Houston, Texas 77002
Telephone: (713) 368-6402
24 Expiration: 12/31/2014
25
DARLENE STEIN
Exhibit V App. 411
611112014 2:07:32 PM
Chris Daniel -District Clerk
Harris County
Envelope No: 1510270
By: ARRIAGA, AMANDA R
Cause No. 2014-10896
LOS CUCOS MEXICAN CAFE VIII,
fNC.; LOS CUCOS MEXICAN CAFE IV, §
§ IN THE DISTRICT COURT OF f2
fNC.; MANUEL CABRERA; AND
SERGIO CABRERA,
§
§
1 (lfA.D)(
STP~)'
§
Plaintiffs, §
§
v. §
§
8650 FRISCO, LLC D/B/A ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE; §
MANDONA, LLC; GALOVELHO, LLC; §
BAHTCHE, LLC; CLAUDIO NUNES; and §
DAVID JEIEL RODRIGUES, §
§
Defendants. § 133rd JUDICIAL DISTRICT
ORDER ON DEFENDANTS' MOTd~TO STAY ALL MATTERS
``
PLAINTIFFS' THII~>TION TO COMPEL
0
The Court, having considered !®fendants' Motion to Stay All Matters and Plaintiffs'
oQ
Third Motion to Compel and th~tive responses, arguments of counsel, and evidence, has
determined that Defendants' ~on should be and is hereby DENIED and that Plaintiffs' motion
should be and is hereby G~ED. Specifically:
The Court DE~gefendants' request to stay all matters.
. The Cou!J ``y OVERRULES Defendants' objections to Plaintiffs' Requests for
Production No,2, 3, 4, 5, 7, and 8. IT IS ORDERED that Defendants shall produce all
~
document~onsive to Requests for Production Nos. 1, 2, 3, 4, 5, 7, and 8 within 24 hours of
the entry of this order.
Th~om t Fllq!JS that Defeudams' co,msernasahused the discovery_pr~'Sis_fiil:g­
l'(oM:;it;A-';-enr-:ln~ermmea that the followillg sanctions are appropriate~ satisfy the legitimate-
Exhibit V
Exhibit 4 Ohio App. 412
~I 1 A purposes of discovery sanctions, and are nenher more 1101 less stringent than nece:.:.ary to-.
11\j-/ '-- aceef!!plishjtT7}Se purpes&.-
AcsorQ_ingly, IT IS ORDERED that all---eXpenses of dtscovery assocmtecrwith th~
ooderlying motiotnl1101fie deposition of each of the Defenda""fitrin aecordance with this oreer an:~
e MOSSER l.AW fiRM shall pay to``
$ within I 0 days of the sig11iflg ei.th.iuJrder.~ (J
·rr- IS FURTHER ORDERED that the fullo"i"g fucts a~ABL!SHBD fi5r1rtl---...
I'm poses in thiS hbgatwn: that Defendants havo ART A INGINPART
PLAINTIFFS' MOTION TO ENFOR
0~
On thts dav the Court came to constder pJ.il``ffs Sec.ond Mohon to Enforce the Court'&
- ``
Order and for Sandton~ (lhe "Mot.Ion") ~Y cons1denng lhe facts, law, and argument of
<..ounscl, the Court has dec1ded to grant ``otlontn part and deny the Mohon m pmt
Defendant!:. are ordered to ~e all documents tdenttfied m the CoUtt's July 28, 2014
Order on Detendant~ MottonJRGay All Mattml> and Plamhffs' Il11rd Matton to Compel lhts
p10dm.tton must be made~lo p m on Wednesday, Apttl 1, 2015 to both Sam Haten and
Kelly Stephen::, ~U
oW
Plmnt1f``Dcfendants' request; ~or sancuons dlC dcmed
s:~J~ilieL-day or~ ``
Exhibit V
Exhibit 5 Ohio App. 414
 EXHIBIT 6
FILED UNDER SEAL
EXHIBIT 6
Exhibit V App. 415
4/24/2014 2:56:55 PM
Chris Daniel - District Clerk
Harris County
Envelope No: 1081864
By: PALMER, EVELYN J
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFE VIII,
INC.; LOS CUCOS MEXICAN
§
§
IN THE DISTRICT COURT OF f3
CAFE IV, INC.; MANUEL §
CABRERA; and SERGIO § fJ £AirX-
CABRERA, §
Plaintiffs §
v.
8650 FRISCO, LLC D/B/A ESTILO
§
§
§
§
HARRISCOU~TEXAS
~
~ *
GAUCHO BRAZILIAN § 0~
STEAKHOUSE; MANDONA, LLC;
GALOVELHO, LLC; BAHTCHE,
§
§
o{f?~
LLC; CLAUDIO NUNES; and
DAVID JEIEL RODRIGUES,
§
§ o@j ~
Defendants § 1~ .nJDICIAL DISTRICT
(')
0RD~
ON PLAINTIFFS' EMERGENCY Mo~"-ro COMPEL AND FOR SANCTIONS
,Q
The Court, having considered ~intiffs' Emergency Motion to Compel and for
~
Sanctions, the response, the argu~ of counsel, and the evidence, has determined that the
motion is meritorious and shoul~and is hereby GRANTED in its entirety. Specifically:
The custodian of rec``f Holtman & Company, LLC is hereby ORDERED to appear
o~
before a notary public f~position as subpoenaed by Plaintiffs on May 26,2014, at ~0:00a.m.
~
at the office of Gu!J:~am Legal Group, LLC, 16607 Blanco Road, Suite 1307, SarJ Antonio,
Texas 78232.
(/``
~">
©5
Th~dian of records ofHoltman & Company, LLC is hereby ORDERED to preserve
all documents and communications related to 8650 Frisco, LLC, including but not limited to
those records requested by Plaintiffs, in its possession, custody, or control, during the pendency
of this litigation.
Exhibit V
Exhibit 7 Ohio App. 416
 The Court FINDS that Defendants' counsel has abused the discovery process in resisting
discovery and has determined that the following sanctions are appropriate, that the following
sanctions satisfy the legitimate purposes of discovery sanctions, and that the following sanctions
are neither more nor less stringent than necessary to accomplish those purposes.
that all expenses of discovery a~ated
~([!jj;
underlying motio and the production o cuments by and from Holt~ & Comp
includin fees, and the b~re char
~nselr-------
osser, individually. Nicholas D. Mosser shall pay to Plain ·
within 10 days ofthe signing ofthis order. ~Q~
~ "~
IS FURTHER ORDERED that the follow``acts
~«?Qf
That 8650 Frisco, LLC ~ genera
existence. ~
2. That Plaintiffs are e~Q
©)
to one-
3. T t Plaintiffs a~entitled to full repayment of the startup funds t y
prov ed (in"<,``ount to b proven at trial) with interest at the high st
lawful te ~ '
~
4. That P~h are ent' led to reimbursement for wear and ear an
depr~dh oft eq pment they supplied to 8650 Frisco (in en a un
touoven at trial '
FURTu;s._~ ORDE that Defendants are P ITED from supp<.>rting a y
"W
"~ncludi
Exhibit V App. 417
furth imposition of sanctions r a holding of conte
oth.
DATED:`` l1 ~!lf
r (
Exhibit V App. 418
I I IUI£oVI ......... VVt••hl r1w1
Chrrs Daniel • District Clerk
Harris County
Envelope No: 1848413
By: ARRIAGA, AMANDA R
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFE VIII,
INC.; LOS CUCOS MEXICAN
§
§
IN THE DISTRICT COURT ( Ide
CAFE IV, INC.; MANUEL §
CABRERA; and SERGIO § tiUDE'f
CABRERA, §
Plaintiffs §
§ <
~
v.
• •
§
§ HARRIS COUNTY, TEXA:~
I
f ~
8650 FRISCO, LLC D/B/A ESTILO § 1-.
X c !?.n ~
GAUCHO BRAZILIAN § .,
.,~ I Ul:T
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STEAKHOUSE; MANDONA, LLC; §
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GALOVELHO, LLC; BAHTCHE, § c c
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LLC; CLAUDIO NUNES; and
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§ ':C _...
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DAVID JEIEL RODRIGUES, § .., "'"
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Defendants § 133rd JUDICIAL DISTRIC1 .
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ORDER GRANTING PLAINTIFFS' MOTION TO QUASH AND
DENYING DEFENDANTS' MOTION TO QUASH DEPOSITION SUBPOENA OF
MIKE VERUCCHI AND FOR A PROTECTIVE ORDER
On th1s day the Court came to consider Defendants' Motion to Quash Deposition
Subpoena of Mike Verucclu and for a Protective Order (the "Motion to Quas1"). After
I
considermg the facts, law, and argument of counsel, the Court has decided to DENY,the MotiOn
to Quash The Subpoena contained in Exhibit A to the Motion (the "Subpoena) i,s valid and
enforceable.
The Court further finds that Defendants filed the Mohon without adequately considering
~ the contents of Exhibit A thereto The Court further finds that Defendants refused to Withdraw
0
the Mohon once the relevant contents were pointed out. The Court further finds that the
Defendants have advanced frivolous arguments without basis m fact or law in support of the
MotiOn The Court further finds that this misconduct is part of a larger pattern <~,f improper
objections, motions to quash, and mvocations of privilege.
Exhibit V
Exhibit 8 Ohio App. 419
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Exhibit V App. 420
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 July 29. 2014
Certified Document Number: 61747433 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
Exhibit V App. 421
HAW ASH MEADE
HAWASH MEADE GASTON NEESE & CICACK LLP
Samuel B. Haren
sharen@hmgllp.com
713-658-9001 (phone)
713-658-9011 (fax)
April2, 2015
Via Facsimile:
(469) 626-1073
Mr. James C. Mosser
Mr. Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
Re: Cause No. 2014-10896, Los Cucos Mexican Cafe VIII, Inc. et al. v. 8650 Frisco, LLC et
al. in the 133rd Judicial District Court ofHanis County, Texas
Messrs. Mosser and Mosser:
I attempted to send the attached to the fax number in the signature block of your most recent
pleading. According to our fax service, it did not go through. Hopefully it will fare better with the new
fax number in your letterhe~d.
2118 Smith Street 1 Houston, Texas 77002
Main Phone: (713) 658-9001 1 Main Facsimile: (713) 658-9011
Exhibit V
Exhibit 9 Ohio App. 422
www.hmgllp.com
HAWASHMEADE
HAWASH MEADE GASTON NEESE & CICACK LLP
Samuel B. Haren
sharen@hmgllp.com
713-658-9001 (phone)
713-658-9011 (fax)
April1, 2015
Via Facsimile:
(972) 267-5072
Mr. James C. Mosser
Mr. Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
Re: Cause No. 2014-10896, Los Cucos Mexican Cafe VIII, Inc. et al. v. 8650 Frisco, LLC et
al. in the 133rd Judicial District Court of Harris County, Texas
Messrs. Mosser and Mosser:
On three separate occasions, the Court has ordered you to produce the following documents:
• all documents and records provided to or received from 8650 Frisco, LLC's accountants
(including, but not limited to Mike Verucchi, CPA, Holtman & Company, LLC, or Hal Holtman,
CPA), which relate in any way to 8650 Frisco, LLC;
• all documents and records in the possession of 8650 Frisco, LLC's accountants (including, but
not limited to Mike Verucchi, CPA, Holtman & Company, LLC, or Hal Holtman, CPA), which
relate in any way to 8650 Frisco, LLC;
• all financial records of 8650 Frisco, LLC;
• all accounting records of 8650 Frisco, LLC;
• all bank statements of 8650 Frisco, LLC;
• all tax records (including all 1099 forms, W-2 forms, and K-1 forms) related to 8650 Frisco,
LLC; and
• all communications and correspondence with 8650 Frisco, LLC's accountants (including, but not
limited to Mike Verucchi, CPA, Holtman & Company, LLC, or Hal Holtman, CPA), which
relate in any way to 8650 Frisco, LLC.
Your production of March 31, 2015 does not comply with the Court's three orders. If we do not
receive all responsive documents by 4:00p.m. on April 2, 2015, we will be forced to ask the Court to
hold you and your clients in contempt for continuing to ignore the Court's orders.
Samuel B. Haren
2118 Smith Street 1 Houston, Texas 77002
Main Phone: (713) 658-9001 1 Main Facsimile: (713) 658-9011
www.hmgllp.com
Exhibit V App. 423
P.
Communication Result Report ( Apr. 2. 2015 8:47AM )
* * * 1)
* * *
2)
Date/Time : Apr. 2. 2015 8:46AM
Fi 1e Page
No. Mode Destination pg (s) Result Not Sent
0846 Memory TX 4696261073 P. 2 OK
Reason for error
E. 1) Hang up or line fai E. 2) Busy
E. 3) No answer E. 4) No facsimile connect ion
E. 5) Exceeded max. E-mai s i z e E. 6) Destination does not support IP-Fax
Samuel B. J-b1tet1
HAWASHMEADE
HAWAEH ME'AbEGASTON NEES~& CICACK LLP
sharen@:hmo!lp.com
713-G56-$r001 (phMe}
713-658.0011 (fax)
April2,2015
VraFac.rimi/e:
({6'J) 626-1071
1\fr. Jnmes C. Mosser
1\fr. Nicholas D. Mosser
Mosser Lnw PLLC
17!10DallasParkway, Suito290
Dallas, Texos 75248
Re: Cause No. 2014-10896, Los Cucos Me>.ican Cofe VITI. Inc. et al. v. 8650 Fri.co. LLC et
al. in 1he 133rd Judicial District Court ofHIIIris County, Texns
1\{es.sr-s. Mosser and Mosser:
1 attempted to send the attached to tl~ fax number in the signature block of your most recen1
pleading. According to our fax sen•ice, it did not go through. Hopc:fully it will fare better with the new
fux number in your letterh~d.
2:~}' .
``
2.118 SmHh SLI'eet 1 Houston, Texas 77002
Main Phone: (713) 658-9001 I :Main t:a<.a~imil9: (7f3) 658~9011
www_hmgllp.com
Exhibit V App. 424
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFE VIII, § IN THE DISTRICT COURT OF
INC.; LOS CUCOS MEXICAN §
CAFE IV, INC.; MANUEL §
CABRERA; and SERGIO §
CABRERA, §
Plaintiffs §
§
v. §
§ HARRIS COUNTY, TEXAS
8650 FRISCO, LLC D/B/A ESTILO §
GAUCHO BRAZILIAN §
STEAKHOUSE; MANDONA, LLC; §
GALOVELHO, LLC; BAHTCHE, §
LLC; CLAUDIO NUNES; and §
DAVID JEIEL RODRIGUES, §
Defendants § 133rd JUDICIAL DISTRICT
Order Granting Plaintiffs’
Third Motion To Enforce The Court’s Order
On this day the Court came to consider Plaintiffs’ Third Motion to Enforce the Court’s
Order (the “Motion”). After considering the facts, law, and argument of counsel, the Court has
decided to GRANT the Motion. Defendants will produce all documents responsive to Requests
for Production 1, 2, 3, 4, 5, 7, and 8 contained in Exhibit 1 to the Motion (the “Documents”).
This production must be made through hand delivery during normal business hours to Andrew
Meade or Samuel Haren at HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smith,
Houston, Texas 77002.
The Court further finds that Defendants violated three of the Court’s prior orders by
failing to produce responsive documents. This misconduct is part of a larger pattern of improper
objections, meritless motions, frivolous arguments, feigned ignorance of basic factual and legal
issues, and dishonest gamesmanship in violation of Texas Rule of Civil Procedure 13. Previous
warnings from the Court have been ineffective in forcing Defendants to comply with the Court’s
Exhibit V App. 425
orders or with Texas law, and another warning is unlikely to achieve better results. Moreover,
another warning would only encourage Defendants to continue their egregious behavior in the
future.
Accordingly, the Court imposes the following sanctions:
 Defendants may not conduct additional discovery in this matter until a representative
of 8650 Frisco, LLC signs a sworn affidavit of compliance with this order;
 Defendants shall pay $_____________ to Plaintiffs for their costs incurred in
securing production of the Documents; and
 the issue of whether Plaintiffs face irreparable harm from the lack of the note/security
required by the parties’ contract is conclusively established in Plaintiffs’ favor.
Should Defendants fail to comply with this order within forty-eight hours of the signature
hereof, Defendants and their attorneys of record will be asked to personally appear and show
cause as to why they should not be held in contempt of this Court.
Signed on the _____ day of _______________________, 2015.
Judge Presiding
2
Exhibit V App. 426
Cause No. 2014-10896
Los Cucos Mexican Cafe VIII, Inc.; In the District Court of
Los Cucos Mexican Cafe IV, Inc.;
Manuel Cabrera; and Sergio
Cabrera,
Plaintiffs
v. Harris County, Texas
8650 Frisco, LLC d/b/a Estilo Gaucho
Brazilian Steakhouse; Mandona,
LLC; Galovelho, LLC; Bahtche,
LLC; Claudio Nunes; and David Jeiel
Rodrigues, 133rd Judicial District
Defendant
Notice of Hearing
Please be advised that the Court will hold an oral hearing on Plaintiffs’ Third Motion to
Enforce the Court’s Order and for Sanctions on Monday, April 27, 2015, at 10:00 a.m., in the
133rd Judicial District Court of Harris County, Texas.
Respectfully submitted,
Hawash Meade Gaston
Neese & Cicack LLP
/s/ Samuel B. Haren
Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
Samuel B. Haren
State Bar No. 24059899
2118 Smith Street
Houston, Texas 77002
713-658-9001 (phone)
713-658-9011 (fax)
ameade@hmgnc.com
jmasten@hmgnc.com
sharen@hmgnc.com
Exhibit V App. 427
Stephens & Domnitz, PLLC
Kelly D. Stephens
State Bar No. 19158300
P.O. Box 79734
Houston, Texas 77279-9734
281-394-3287 (phone)
832-476-5460 (fax)
kstephens@stephensdomnitz.com
Cox Smith Matthews Incorporated
David Kinder
State Bar No. 11432550
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205
210-554-5500 (phone)
210-226-8395 (fax)
Attorneys for Plaintiffs
2
Exhibit V App. 428
Certificate of Service
A true and correct copy of the foregoing has been served on all counsel of record via
electronic service on April 6, 2015.
James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pky, Suite 290
Dallas, Texas 75248
/s/ Samuel B. Haren
Samuel B. Haren
3
Exhibit V App. 429
4/24/2015 11:32:47 AM
Chris Daniel - District Clerk Harris County
Envelope No. 5021608
By: EVELYN PALMER
Filed: 4/24/2015 11:32:47 AM
CAUSE NO. 2014-10896
§ IN THE DISTRICT COURT
LOS CUCOS MEXICAN CAFÉ VIII, INC.,
§
LOS CUCOS MEXICAN CAFÉ IV, INC.,
§
MANUEL CABRERA, and SERGIO
§
CABRERA
§
PLAINTIFFS, §
§
V. § 133rd JUDICIAL DISTRICT
§
§
8650 FRISCO LLC, MANDONA LLC,
§
GALOVELHO LLC, BAHTCHE LLC,
§
CLAUDIO NUNES, AND DAVID JEIEL
§
RODRIGUES
§
DEFENDANT. § OF HARRIS COUNTY, TEXAS
DEFENDANT’S RESPONSE TO
PLAINTIFFS MOTION TO ENFORCE AND FOR SANCTIONS
Defendant, 8650 Frisco LLC, asks the Court to deny Plaintiffs, Los Cucos Mexican Café
VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera’s,
Third Motion to Enforce the Court’s Order and for Sanctions, and to impose sanctions
on Plaintiffs for their continual filing of frivolous motions, motions that fail to comply with
the Texas Rules of Civil Procedure or the Harris County Local Rules, motion with no
basis in law or fact, and motions that advance materially false information.
INTRODUCTION
1. Plaintiffs file their Third Motion to Enforce the Court’s Order and for Sanctions
alleging of conduct that does not exist, advancing arguments with no support in law
or fact, and pointlessly increasing costs of a case that has been settled for
approximately eight months.
2. Defendants are in compliance with the Rule 11 Agreement and have been regularly
paying each payment under the note agreed upon by the Defendants–Plaintiffs
Defendants’ Response to Plaintiffs’ Third Motion to Enforce. 1
Exhibit W App. 430
continue to prosecute this case without rhyme or reason.
3. In an effort to resolve the document drafting issues, Defendants counsel has
attempted to reach out at least a dozen times to various lawyers involved in this
case, with little or no success.
4. As of the week of April 13, 2015, Kelly Stephens and Counsel for Defendants were
finally able to discuss the issues complained of by Plaintiffs. Defendants requested
a mutual canceling of all hearings set for April 27, 2015, the hearings remain set.
5. Plaintiff offers a bizzare contorted view on reality that reflects the underlying
problem with this litigation from the beginning, rather than adhering to the lawyers
creed by demonstrating: candor, honesty, and adhering to their duties to the client
and the court– Plaintiffs’ Counsel wages a warpath of false attribution, misstatement
of law and fact, inability to recognize how opposing counsel creates a record for
review, and seeks sanctions for every argument raised. Plaintiffs’ actions continue
in their Third Motion to Enforce and for Sanctions, despite the Attorney in Charge’s
admission that he was served documents, Mr. Haren falsely contends that
Defendants ignored every order from this court.
6. Rather than stoop to Plaintiffs’ level, Defendants will attempt to address what little
argument is presented in Plaintiffs’ Motion and not endeavor to sling mud on a case
that should have been concluded by virtue of the Rule 11 agreement and
Defendants continual payment of the settlement amounts. (However, if necessary,
Defendants reserve all responses to the false statements, deceptive remarks, and
unnecessary misstatements of law and fact for a later time.)
ARGUMENTS AND AUTHORITIES
Defendants’ Response to Plaintiffs’ Third Motion to Enforce. 2
Exhibit W App. 431
7. Plaintiffs’ Motion to Enforce creates a chart of what Plaintiffs requested and
compared this to what was received after Defendants served the documents on
Plaintiffs twice.
8. Plaintiffs argument is reduced to one sentence immediately following the chart.
Plaintiffs’ Third Motion to Enforce the Court’s Order and for Sanctions, pg. 3.
9. Plaintiffs essentially complain that (1) the dates of production of various
documents (including bank accounts, sales reports, and other docum ents) were
limited to a range between April and July 2014; (2) “accounting records” such as
“QuickBooks” files and various other financial statements1 were not produced; (3)
tax records were not produced; and (4) documents/correspondence from their
accountants “other the [sic] Holtman Documents.”
Production of documents between April and July 2014 (inclusive) is proper.
10. Defendants agree that the documents produced on August 1, 2014 and again on
March 31, 2014 encompass a time between April 2014 and July 2014– inclusive.
11. Plaintiff offers no argument or supporting case law related to why this response
is objectionable. The Responsive documents were initially tendered on August 1,
2014, the court subsequently ordered Defendants to reproduce what was
produced on August 1, 2014 – Defendants produced the same documents again
on March 31, 2015.
12. Plaintiffs proffer no argument as to why the production from April 2014 to July,
1
The documents described by Mr. Haren as “accounting records” are not
accounting records, rather they are more aptly termed “Financial Statements.” See
FINANCIAL STATEMENT, Black's Law Dictionary (10th ed. 2014)
Defendants’ Response to Plaintiffs’ Third Motion to Enforce. 3
Exhibit W App. 432
2014 is inappropriate, deserving of sanctions, or in violation of any order of this
Court. Defendants cannot properly prepare a response to Plaintiffs’ Motion on
the relevant issues about which they are complaining until such a time as
Plaintiffs articulate their argument.
Accounting Records
13. Plaintiffs’ inaccurate identification aside–whether Plaintiffs have requested
financial statements or accounting records– Plaintiffs provide no argument as to
as to why the documents produced are inappropriate.
14. Plaintiffs acknowledge that every document in the possession of Holtman, 8650
Frisco LLC’s prior accountant, are in Plaintiffs possession. Plaintiffs’ Third Motion
to Enforce the Court’s Order and for Sanctions, Fn. 3 (“As the Court may recall,
Plaintiffs obtained 7,235 pages of documents via subpoena from Hal Holtman
(the “Holtman Documents”). Plaintiffs Bates labeled these documents and
forwarded them to Defendants. Last June, Defendants “produced” the Holtman
Documents, complete with Plaintiffs’ original Bates numbering.[sic]”).
15. Given that the first time Defendants had been able to retrieve these documents
was from Plaintiffs it is difficult to understand why Plaintiffs would want these
documents produced back to them, however, Plaintiffs demanded the
documents and Defendants complied. Id. (“Last June, Defendants “produced”
the Holtman Documents, complete with Plaintiffs’ original Bates numbering
[sic].”).
16. Plaintiffs proffer no argument as to why the documents as produced are
inappropriate or deserving of sanctions, or in violation of any order of this Court.
Defendants’ Response to Plaintiffs’ Third Motion to Enforce. 4
Exhibit W App. 433
Defendants cannot properly prepare a response to Plaintiffs’ Motion on the
relevant issues about which they are complaining, until Plaintiffs describe what
their objection to the documents produced is, why the documents produced were
inappropriate, and how the documents produced failed to comply with the orders
of the Court and define the specifics which Order to which they are referring.
Tax Records
17. Without delving into greater detail than necessary, Plaintiffs argument fails on
the most fundamental basis related to Tax Records.
18. No tax records were produced beyond what Plaintiffs currently have, because at
the time of production, August 1, 2014, the tax returns were not due. See
generally Instructions to Form 1065, pg 4. Plaintiffs even have correspondence
in their possession reflecting that an extension was filed and acknowledged by
Plaintiffs’ accountant, Hal Holtman.
19. Plaintiffs’ “argument,” if any, lacks merit as it relates to “Tax Records”.
Documents/correspondence from their accountants “other the [sic] Holtman Documents
20. Defendants again, admit that documentation or correspondence between 8650
Frisco LLC was scant. However, perhaps this was not due to an improper motive
as Plaintiffs suggest–instead, perhaps, Defendants took the 7000 pages
produced to Plaintiffs from Mr. Holtman, Plaintiffs’ accountant, and had a
meeting with their new accountant instead of emailing it to him.
21. Plaintiffs fail to explain what documents are remaining that they believe illustrate
a failure to comply with any of the Court’s orders. Until Plaintiffs explain how the
production was insufficient, and in violation of the Court’s Order, Defendants can
Defendants’ Response to Plaintiffs’ Third Motion to Enforce. 5
Exhibit W App. 434
hardly be expected to muster a defense to an unarticulated accusation.
Discussion and Sanctions
22. Mr. Haren complains that “All three times, Defendants have simply ignored the
Court’s order.”[sic]. Plaintiffs’ Third Motion to Enforce the Court’s Order and for
Sanctions. Plaintiffs, however, fail to elaborate on where the deficiency lies, how
the deficiency warrants sanctions, which document if any they are requesting is
actually missing, or any proper efforts of conferring– other than purely self
serving statements made in the conference.
23. None of Mr. Haren’s proposed sanctions relate to any of his alleged misconduct.
This is especially true given that Mr. Haren fails to identify any conduct sufficient
to warrant sanctions.
24. As to disallowing discovery, Defendant prays that this court will simply enforce
the Rule 11 agreement filed with this Court and dismiss this case as Plaintiffs
have received their money every single month and the parties are still working on
the settlement documents despite Mr. Haren’s conduct. Certainly, Defendants
request that all activities be terminated until such a time that a breach of the Rule
11 agreement actually occurs.
25. As to requesting that Defendants pay Plaintiffs’ Attorneys’ fees, Defendants find
little law requiring a party to pay attorney’s fees of another party when the other
party loses documents served on their counsel. See Supplement to Defendants’
Response to Plaintiffs’ Second Motion to Enforce the Court’s Order and for
Sanctions and Defendants’ Motion for Sanctions, Exhibit C. If such a case exists,
Defendants will be disappointed such a case exists in Texas, however, will revisit
Defendants’ Response to Plaintiffs’ Third Motion to Enforce. 6
Exhibit W App. 435
the argument that Mr. Stephens should be rewarded for losing files served on
him for his clients’ safekeeping. It is more likely that Texas Law supports the
award of attorney’s fees to Defendants for responding to Mr. Haren’s frivolous
motion and Plaintiffs refusal to settle the case as required under the Rule 11
agreement.
26. As to ordering the matter at issue “specifically, whether Plaintiffs face irreparable
harm from Defendants’ failure to provide the note/security required by the parties
contract be established in Plaintiffs’ favor. [sic]” Plaintiffs' Third Motion to Enforce
the Court's Order and for Sanctions, pg. 4.
27. In reviewing Plaintiffs’ Fourth Amended Petition, Defendants find no request for
injunctive relief, nor any issues related to “irreparable harm.” Therefore, it is
unclear why “irreparable harm” is relevant to a breach of contract proceeding–
given Plaintiffs do not seek specific performance rather a judgment for exactly
what they are being given–money. See Plaintiffs’ Fourth Amended Petition
Paragraphs 42-45.
28. Even if “irreparable harm” were relevant to these proceedings, Plaintiffs lack any
expertise or knowledge sufficient to determine the harm incurred by being paid
all monies owed under the contract and whether it is “irreparable”. See
Correspondence related to Deposition of Samuel Haren and Plaintiffs’
Supplemental Response to Defendants’ No Evidence Motion for Summary
Judgment, Exhibit 12, Affidavit of Samuel Haren.
29. Finally, as to Mr. Haren’s request to hold everyone in contempt, Mr. Haren has
failed to identify sanctionable conduct, there is certainly no conduct sufficient to
Defendants’ Response to Plaintiffs’ Third Motion to Enforce. 7
Exhibit W App. 436
warrant contempt. Even if Mr. Haren had briefed allegations sufficient to warrant
contempt, Mr. Haren should familiarize himself with Chapter 21 of the
Government Code.
CONCLUSION
30. The Court should dismiss this case until such a time as a breach of the Rule 11
agreement actually exists. Plaintiffs are receiving regular payments pursuant to
the Parties’ agreement and have no basis in law or fact for any argument they
have presented to this Court. Certainly, Defendants have made a record (time
and time again), Defendants have dutifully complied with the orders of the Court
and Plaintiffs have no evidence to illustrate otherwise.
PRAYER
31. Defendants Pray that this court will dismiss this case, until such a time that a
party is actually in breach of the Rule 11 agreement. Defendants further pray
that the Court deny Plaintiffs’ Motion and award Defendants all attorney’s fees
incurred in responding to both the second and third motions to enforce– as both
are frivolous and lacks merit.
Respectfully submitted, MOSSER LAW PLLC,
/s/ Nicholas D. Mosser
Nicholas D. Mosser
Texas Bar No. 24075405
Mosser Law, PLLC
2805 Dallas Parkway Suite 222
Plano, Texas 75093
Telephone 972-733-3223
Facsimile 469-626-1073
Defendants’ Response to Plaintiffs’ Third Motion to Enforce. 8
Exhibit W App. 437
courtdocuments@mosserlaw.com
LAWYER FOR DEFENDANTS
CERTIFICATE OF SERVICE
I certify that on April 24, 2015, a true and correct copy of this document was
served pursuant to Tex. R. Civ. P. 21 and 21a, to the following counsel/parties:
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
Nicholas D. Mosser
By: Nicholas D. Mosser
Defendants’ Response to Plaintiffs’ Third Motion to Enforce. 9
Exhibit W App. 438
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App. 439
CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFE VIII, § IN THE DISTRICT COURT
INC., LOS CUCOS MEXICAN §
CAFE IV, INC., MANUEL §
CABRERA, and SERGIO §
CABRERA §
PLAINTIFFS, §
§
V. § 133rd JUDICIAL DISTRICT
§
8650 FRISCO LLC, MANDONA §
LLC, GALOVELHO LLC, §
BAHTCHE LLC, CLAUDIO §
NUNES, AND DAVID JEIEL §
RODRIGUES §
DEFENDANT. § OF HARRIS COUNTY, TEXAS
UNSWORN DECLARATION OF PAUL J . DOWNEY REGARDING
DISCOVERY REQUESTS FROM PLAINTIFFS
1. My name is Paul J. Downey. I am of sound mind , capable of making
this unsworn declaration, and personally acquainted with the facts
herein stated.
2. I am a lawyer at Mosser Law, PLLC.
3. I am one of the custodians of the records at Mosser Law, PLLC.
4. As one of the custodians of records at Mosser Law, PLLC, I monitor
incoming documents so that deadlines pertaining to those documents
are not missed.
5. Discovery requests are among the class of documents that have
Exhibit Y App. 440
deadlines based upon the day the office receives them.
6. Since January 21 , 2015, no discovery request propounded under the
Texas Rules of Civil Procedure has been served on our office by
Counsel for the Paintiffs.
My name is Paul James Downey, my date of birth is January 19, 1984, and
my address is C/0 Mosser Law, PLLC, 2805 Dallas Parkway, Suite 222,
Plano, Texas 75093, United States of America . I declare under penalty of
perjury that the foregoing is true and correct.
Executed in Collin County, State of Texas on the 5th Day of May, 2015.
Paul J. Downey
Exhibit Y App. 441
No.
-----------------
IN THE
FIRST/FOURTEENTH JUDICIAL DISTRICT COURT OF APPEALS
at HOUSTON, TEXAS
IN RE 8650 FRISCO, LLC d/b/a ESTILO GAUCHO BRAZILIAN
STEAKHOUSE, MANDONA, LLC, GALOVELHO, LLC, BAHTCHE, LLC,
CLAUDIO NUNES, and DAVID JEIEL RODRIGUES,
Relators
ORIGINAL PROCEEDING FROM THE 133rd JUDICIAL DISTRICT COURT
OF
HARRIS COUNTY, TEXAS
STATEMENT OF NO EVIDENCE
UNSWORN DECLARATION OF NICHOLAS D. MOSSER OF NO
EVIDENCE IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS
1. My name is Nicholas D. Mosser. I am of sound mind, capable of
making this unsworn declaration , and personally acquainted with the
facts herein stated.
2. I represent the relator in the above-styled case, and on the Relator's
behalf, I filed a Petition for Writ of Mandamus on May 6, 2015.
3. The trial court rendered an order on Real Parties' in Interest Second
Motion to Enforce the Court's Order on April 1, 2015.
Exhibit Z App. 442
4. The trial court based its April 1, 2015 order on the papers on file in
this case and the arguments of the attorneys. No evidence or
testimony was received at the March 30, 2015 hearing on the Real
Parties' in Interest Second Motion to Enforce the Court's Order.
5. Additionally, the trial court rendered an order on Real Parties' in
Interest Third Motion to Enforce the Court's Order on April 27, 2015.
6. The trial court also based April 27, 2015 order on the papers on file in
this case and the argument of the attorneys. No evidence or
testimony was received at the April 27, 2015, hearing on the Real
Parties' in Interest Third Motion to Enforce the Court's Order
7. I have ordered copies of the transcripts of the hearings held on
March 30, 2015, and April 27, 2015, from the Court Reporter present
on at these hearings. I will supplement the appendix and record as
soon as these transcripts become available.
My name is Nicholas Dupont Mosser, my date of birth is March 20, 1984,
and my address is C/0 Mosser Law, PLLC, 2805 Dallas Parkway, Suite
222, Plano, Texas 75093, United States of America. I declare under
penalty of perjury that the foregoing is true and correct.
Executed in Collin County, State of Texas on the 51h Day of May, 2015.
Exhibit Z App. 443
Exhibit Z App. 444