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
5/7/2015 11:44:52 AM
CHRISTOPHER PRINE
CLERK
No. 01-15-00423-CV st
FILED IN
1 COURT OF APPEALS
HOUSTON, TX
IN THE MAY 7, 2015
CHRISTOPHER A. PRINE,
CLERK
FIRST 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
EMERGENCY RELIEF REQUESTED
MOTION FOR EMERGENCY TEMPORARY RELIEF TO STAY ACTION
BY THE TRIAL COURT
TO THE HONORABLE FIRST COURT OF APPEALS:
Relators, 8650 Frisco LLC, Mandona, LLC, Galovelho, LLC, Bahtche,
LLC, Claudio Nunes, and David Jeiel Rodrigues (hereinafter “Relators”) file
this, the Relators’ Motion for Temporary Relief and would respectfully show
the Court as follows:
INTRODUCTION
1. Relators are 8650 Frisco LLC, Mandona, LLC, Galovelho, LLC,
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 1 OF 8
Bahtche, LLC, Claudio Nunes, and David Jeiel Rodrigues.
2. The Real Parties In Interest are Los Cucos Mexican Café VIII, Inc., Los
Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera
3. Respondent is the Honorable Jaclanel McFarland, Judge Presiding of
the 133rd Judicial District Court, located in Harris County.
4. Relators filed their Petition for Writ of Mandamus on May 6, 2015, in the
above captioned case.
5. Relators attach a certificate of compliance certifying that on May 7,
2015, they notified respondent and real parties in interest by expedited
means that a motion for temporary relief has been filed. Tex. R. App. P.
52.10(a).
6. The original proceeding in which a petition for writ of mandamus was
filed complains of two orders issued by the Respondent compelling
discovery responses and imposing sanctions on the Relators for failure
to comply with previous discovery orders.
7. Respondent’s April 1, 2015 order compelled discovery of documents
which have no relevance to the live pleading on file with the trial court.
8. Additionally, Respondent’s April 27, 2015 Order included sanctions
barring Relators from further discovery until the documents are
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 2 OF 8
produced, taxing costs incurred in securing production of the
documents to the Relators, and conclusively establishing an unpleaded
issue in favor of the Real Parties in Interest.
9. Finally the order demanded compliance by hand delivery of responsive
documents to the office of Counsel for the Real Parties in Interest forty-
eight hours after the Respondent signed the order. Said office is in
Houston, and is 260 miles from the Office of Counsel for Relators. The
documents for which discovery was compelled had been served
pursuant to TEX. R. CIV. P. 21 and 21a twice previously.
10. Respondent signed this order in the presence of Counsel for Real
Parties in Interest but outside the presence of Relators’ attorney.
11. On May 3, 2015, Counsel for Real Parties in Interest served the April
27, 2015 order on Relators’ attorney requiring compliance by April 29,
2015. Counsel then demanded compliance by noon on May 4, 2015.
This letter is attached to the motion as “Exhibit A” and is incorporated
in haec verba.
12. On May 4, 2015, Counsel for Real Parties in Interest filed with the
Respondent and served on Relators’ attorneys its Fourth Motion to
Enforce the Court’s Order in which the Real Parties in Interest
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 3 OF 8
demanded that the Respondent strike the Relators’ pleadings for failure
to comply. The Fourth Motion to Enforce the Court’s Order is attached
to this motion as “Exhibit B” and is incorporated in haec verba. The
Real Parties in Interest set this matter for hearing on May 18, 2015.
ARGUMENT & AUTHORITIES
13. The Court may grant temporary relief pending its determination of an
original proceeding. Tex. R. App. P. 52.10(b).
14. This emergency stay is necessary to maintain the status quo of the
parties and to preserve the Court’s jurisdiction to consider the merits of
the original proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex.
App.—San Antonio 1995, orig. proceeding). Relators filed their Petition
in the above captioned case on May 6, 2015, seeking relief from both
the April 1, 2015 order and the April 27, 2015 order, both of which the
Real Parties In Interest seek to enforce in their Fourth Motion to Enforce
the Court’s Order.
15. The issues at the heart of Relators’ Petition for Writ of Mandamus are
the same issues on which the Real Parties’ in Interest Motion to Enforce
are based. See Exhibit B. Granting the Petition for Writ of Mandamus
would dispose the issues in the Petition and in the Fourth Motion to
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 4 OF 8
Enforce the Court’s Order simultaneously. A stay maintains the state of
affairs between the parties, and prevents irreparable harm from
accruing to either side, pending the court’s decision on the Relator’s
Petition for Writ of Mandamus.
16. Relator attaches an unsworn declaration to establish facts that are not
included in the appellate record, are not known to the Court in its official
capacity, and are not within the personal knowledge of the attorney
signing this motion. Tex. R. App. P. 10.2.
CONCLUSION
9. Because the issues raised by the Relators in above-captioned original
proceeding address all of the issues raised by the Real Parties in Interest in
their Fourth Motion to Compel, a stay would operate to prevent needless
expense to both parties and the trial court and would resolve the ongoing
discovery dispute.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Relators ask the Court for an
emergency stay of the Respondent’s consideration of Real Parties’ in Interest
Fourth Motion to Enforce until such time as this Court has had an opportunity
to review the merits of Relators’ above-captioned Petition for Writ of
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 5 OF 8
Mandamus. This stay will maintain the status quo of the parties and preserve
the Court’s jurisdiction to consider the merits of relator’s original proceeding.
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
2805 Dallas Parkway, Suite 220
Plano, Texas 75093
Tel. (972) 733-3223
Fax (469) 626-1073
courtdocuments@mosserlaw.com
LAWYERS FOR RELATORS
CERTIFICATE OF COMPLIANCE 1
In accordance with Tex. R. App. P. 52.10, the relators have notified all
parties by expedited means that a motion for temporary relief has been or
would be filed in this court. The following parties were notified:
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
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 6 OF 8
Real Parties In Interest
Los Cucos Mexican Café VIII, Inc.;
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@stephensdomnitz.com
/s/ Paul J. Downey
Paul J. Downey
CERTIFICATE OF COMPLIANCE 2
I certify that this Motion for Leave to File Appellee’s Sur-Reply complies
with the word limit of Tex. R. App. P. 9.4 because it contains 867 words,
excluding the parts of the motion exempted by Tex. R. App. P. 9.4. I relied
on the word count feature of Corel WordPerfectX6 to reach this number
/s/Paul J. Downey
Paul J. Downey
CERTIFICATE OF CONFERENCE
I certify that on May 7, 2015, I attempted to confer with Kelly Stephens, the
attorney-in-charge for the Real Parties’ In Interest litigation efforts in
accordance with TEX. R. APP. P. 10.1(a)(5). He failed to respond to the
request prior to the filing of this motion.
/s/ Nicholas D. Mosser
Nicholas D. Mosser
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 7 OF 8
CERTIFICATE OF SERVICE
In accordance with TEX. R. APP. P. 9.5, I certify that on May 7, 2015, I
served a copy of this Motion for Temporary Relief on the following parties:
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.;
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@stephensdomnitz.com
/s/ Paul J. Downey
Paul J. Downey
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 8 OF 8
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
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 custod ians of the records at Mosser Law, PLLC.
4. Attached hereto are the following 50 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- Letter from Real Parties in Interest Dated May 3,
2015;
b. Exhibit B - Real Parties' in Interest Fourth Motion to Enforce the
Court's Order, filed May 4, 2015
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.
P/(2z_ Z ~
PauiJ. Er~ ~
HAWASH MEADE
HAWASH MEADE GASTON NEESE & CJCACK LLP
Samuel B. Haren
sharen@hmgnc.com
713-658-9001 (phone)
713-658-9011 (fax)
May 3, 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 VIIL Inc. et al. v. 8650 Frisco, LLC et
al. in the 133rd Judicial District Comt ofHanis County, Texas
Dear Mr. Mosser:
The Comt' s order is attached. As you are aware, it was readily available to anyone from the
Court's clerk and to any licensed attomey from the District Clerk's website. As stated in my previous
letter, if you have not complied with the Court's order by noon on Monday, May 4, 2015, we will file a
fomth motion to enforce the Comt's order.
_;'_ff
~-H-a-re_n_ __
2118 Smith Street I Houston, Texas 77002
Main Phone: (713) 658-9001 I Main Facsimile: (713) 658-9011
www. hmg II p.com
Exhibit A Page 1
CAUSE NO 2014-10896
LOS CUCOS MEXICAN CAFE Vill,
INC , LOS CUCOS MEXICAN
§
§
IN THE DISTRICT COURT OF f,Z -
CAFE IV, INC , MANUEL §
cf Mr£u=x
*
CABRERA, and SERGIO §
CABRERA, §
Plamtiffs § /tTFE)(
§ ~
v § (}
§ HARRIS CO~, TEXAS ""'
8650 FRISCO, LLC D/B/A ESTILO § 0~ ~ 9
GAUCHO BRAZILIAN § ~ CP
STEAKHOUSE, MANDONA, LLC, § 0~
GALOVELHO, LLC, BAHTCHE, § «:::}~
LLC, CLAUDIO NUNES, and § ~ 0
DAVID JEIEL RODRIGUES, § 0~ ~
Defendants § Ul~ JUDICIAL DISTRICT&
ftj(9}
Order Grantm
Third MotiOn To En~ he Court's Order
On thrs day the Court came to con~Wlamtrffs' Thrrd Matron to Enforce the Court's
cg
Order (the "Motion") After consrdenn~e facts, law, and argument of counsel, the Court has
decrded to GRANT the Matron nt~nts Will produce all documents responsive to Requests
for Production 1, 2, 3, 4, 5, 7~Q8 contamed m Exhrbrt 1 to the Mohon (the "Documents")
~0.
Thrs productron must be ~hrough hand delivery dunng normal busmess hours to Andrew
Meade or Samuel H~
Gat HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smrth,
o~j
Houston, Texas 7f!;Qj. ·'
The ~Q fiuther finds that Defendants VIOlated three of the Court's pnor orders by
farlmg to ~uce responsrve documents Thrs misconduct Is part of a larger pattern of Improper
objectwns, mentless motions, frrvolous arguments, fergned rgnotance of baste factual and legal
Issues, and drshonest gamesmanship m vrolatwn of Texas Rule of Crvll Procedure 13 Pt evrous
warnmgs from the Court have been meffectrve m forcmg Defendants to comply wrth the Court's
Exhibit A Page 2
orders or with Texas law, and another warnmg IS unlikely to achieve better results Moreover,
another warnmg would only encourage Defendants to contmue their egregwus behaviOr m the
future
Accordmgly, the Court ltnposes the followrng sanctiOns
•
*
Defendants may not conduct additional discovery m this matter u~~representattve
of 8650 Fnsco, LLC stgns a sworn affidavit of compliance wtth ~~rder,
• Defendants shall pay $ iV()V, f30 to Plamtlffs fot; ~ costs mcurred m
secunng productiOn of the. ocuments, and ~
• the Issue of whether Plamtrffs face Irreparable harm ~~e lack of the note/secunty
requrred by the parties' contract IS conclusively es~Yed m Plarntiffs' favor
0~
Should Defendants fall to comply w1th this order w~ forty~eight hours of the stgnature
hereof, Defendants and their attorneys of record
WJ
wtl~ asked to personally appear and show
cause as to why they should not be held m cont~~th1s Court
~ru
Signed on the _Jj_ day of 4f:rt?JId. Once again, Defendants ignored this order.
On Thursday, April 30, Plaintiffs informed Defendants of their failure to comply with the
Court’s order and demanded production of the documents and payment of the sanction before
noon on Monday, May 4. Exhibit 6, Letter from Haren to Mosser. At 4:50 p.m. on Friday,
May 1, Defendants sent the following response:
Exhibit 7, Letter from Mosser to Stephens. Even though the order was available from the Court’s
office and through the District Clerk’s website, Plaintiffs forwarded a copy of the order to
Defendants on Sunday, May 3. Exhibit 8, Letter from Haren to Mosser.
Background
The Court has ordered Defendants to produce certain documents on four separate
occasions. Defendants have refused or failed to comply all four times. Defendants’ most recent is
excuse is that they were not “served” a copy of the Court’s order. See Exhibit 7, Letter from
Mosser to Stephens As the Court may recall, this was the same explanation Defendants offered
2
Exhibit B Page 5
for their failure to comply with the original order compelling production. See Exhibit 2, Letter
from Mosser to Stephens. This excuse was invalid both times it was made. Regardless of
whether Defendants “served” a copy of the Court’s order, “[t]he law charges all parties and their
lawyers with notice of all orders and judgments that the court renders in the case.” Welborn
Mortg. Corp. v. Knowles, 854 S.W.2d 328, 331 (Tex. App.—Dallas 1993, writ denied). For this
reason alone, Defendants are deemed to have known the contents of the Court’s order.
Moreover, “[t]he law charges one who has knowledge of facts that would cause a prudent
man to inquire further with notice of the facts that, by use of ordinary intelligence, he would
have learned.” Id. Defendants appeared at the April 27 hearing telephonically, so they were
aware that the Court ordered them to produce documents and pay a sanction. Defendants were
further aware that copies of the order could have been easily obtained by calling the Court’s
clerk or by visiting the District Clerk’s website. A reasonably prudent attorney who was ordered
to pay a sanction and produce documents would make an effort to obtain such orders rather than
remaining deliberately ignorant.
Further, Defendants received actual notice at 1:57 p.m. on April 30 that the Court had
signed an order requiring Defendants produce documents and pay a sanction within 48 hours.
See Exhibit 6, Letter from Haren to Mosser. Thus, Defendants had at least 94 hours between
receipt of actual notice of the terms of the Court’s order and the filing of this motion.
As a sanction for Defendants’ fourth failure to comply with the Court’s order, Plaintiffs
ask the Court to order that:
 Defendants’ attorneys pay Plaintiffs a sanction for all attorneys’ fees incurred in
attempting to obtain the requested documents;
 Defendants and their attorneys appear and show cause as to why they should not be
held in contempt; and
 Defendants be disallowed from conducting any discovery in this case.
3
Exhibit B Page 6
Plaintiffs are hopeful that such a sanction will be sufficient to ensure future compliance
with the Court’s orders and Defendants’ obligations under the Texas Rules of Civil Procedure.
Conclusion
Defendants continue to ignore the Court’s orders. Plaintiffs pray that the Court further
sanction Defendants and order Defendants and their attorneys to show cause as to why they
should not be held in contempt. Plaintiffs further pray for all other relief to which they are
entitled.
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
4
Exhibit B Page 7
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 sent two letters to opposing counsel in an effort to obtain the documents and payment
without further judicial intervention. I further tripled the time for compliance from the two days
allowed by the Court to six. Despite this, Defendants still have not complied with the Court’s
order.
/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 May 4, 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
5
Exhibit B Page 8
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 B
Exhibit 1 Page 9
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 B Page 10
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 B Page 11
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 B Page 12
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 B Page 13
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 B Page 14
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 B Page 15
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 B Page 16
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 B Page 17
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 B Page 18
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 B Page 19
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 B Page 20
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 B Page 21
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 B Page 22
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 B Page 23
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 B Page 24
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 B Page 25
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 B Page 26
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 B Page 27
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 B Page 28
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 B Page 29
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 B Page 30
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 B Page 31
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 B Page 32
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 B Page 33
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 B Page 34
From:MOSSER HILL PLLC 8172 267 5072 07/12/2014 10:39 1235 P.001/001
1 '11 n DALLAS PARKWAY, SLTTfE 29() • D:\LLAS, TEXA.S :.)2.'18 • 9':::-- 33-3223 • FAX ~P2-26"7 -)(Y-;2
1\IOSSERLAW.COM
July 12, 2014
Via Facsimlile: 832-476-5460
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
RE: Los Cucos VIII, Inc. Et al., v. B650 Frisco LLC, et al.
Dear Mr. Stephens:
Apparently my prior letter was too subtle, I will try to be more blunt.
There is no "currently scheduled August 1, 2014 inspection" because you have failed to
serve a proper request pursuant to the rules.
We have never been served with an order from the court to produce documents. To the
extent our objections were overruled, you are in possession of the responsive
documents
I will not withdraw my objection to your improper subpoena. To the extent Mr. Verucchi
has documents, you have those documents in your possession.
Respectfully, MoSSER LA.W PLLC~
/s/ Nicholas D. Mosser
Nicholas D. Mosser
Exhibit B
Exhibit 2 Page 35
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 B
Exhibit 3 Page 36
~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 B
Exhibit 4 Page 38
CAUSE NO 2014-10896
LOS CUCOS MEXICAN CAFE Vill,
INC , LOS CUCOS MEXICAN
§
§
IN THE DISTRICT COURT OF f,Z -
CAFE IV, INC , MANUEL §
cf Mr£u=x
*
CABRERA, and SERGIO §
CABRERA, §
Plamtiffs § /tTFE)(
§ ~
v § (}
§ HARRIS CO~, TEXAS ""'
8650 FRISCO, LLC D/B/A ESTILO § 0~ ~ 9
GAUCHO BRAZILIAN § ~ CP
STEAKHOUSE, MANDONA, LLC, § 0~
GALOVELHO, LLC, BAHTCHE, § «:::}~
LLC, CLAUDIO NUNES, and § ~ 0
DAVID JEIEL RODRIGUES, § 0~ ~
Defendants § Ul~ JUDICIAL DISTRICT&
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Order Grantm
Third MotiOn To En~ he Court's Order
On thrs day the Court came to con~Wlamtrffs' Thrrd Matron to Enforce the Court's
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Order (the "Motion") After consrdenn~e facts, law, and argument of counsel, the Court has
decrded to GRANT the Matron nt~nts Will produce all documents responsive to Requests
for Production 1, 2, 3, 4, 5, 7~Q8 contamed m Exhrbrt 1 to the Mohon (the "Documents")
~0.
Thrs productron must be ~hrough hand delivery dunng normal busmess hours to Andrew
Meade or Samuel H~
Gat HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smrth,
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Houston, Texas 7f!;Qj. ·'
The ~Q fiuther finds that Defendants VIOlated three of the Court's pnor orders by
farlmg to ~uce responsrve documents Thrs misconduct Is part of a larger pattern of Improper
objectwns, mentless motions, frrvolous arguments, fergned rgnotance of baste factual and legal
Issues, and drshonest gamesmanship m vrolatwn of Texas Rule of Crvll Procedure 13 Pt evrous
warnmgs from the Court have been meffectrve m forcmg Defendants to comply wrth the Court's
Exhibit B
Exhibit 5 Page 39
orders or with Texas law, and another warnmg IS unlikely to achieve better results Moreover,
another warnmg would only encourage Defendants to contmue their egregwus behaviOr m the
future
Accordmgly, the Court ltnposes the followrng sanctiOns
•
*
Defendants may not conduct additional discovery m this matter u~~representattve
of 8650 Fnsco, LLC stgns a sworn affidavit of compliance wtth ~~rder,
• Defendants shall pay $ iV()V, f30 to Plamtlffs fot; ~ costs mcurred m
secunng productiOn of the. ocuments, and ~
• the Issue of whether Plamtrffs face Irreparable harm ~~e lack of the note/secunty
requrred by the parties' contract IS conclusively es~Yed m Plarntiffs' favor
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Should Defendants fall to comply w1th this order w~ forty~eight hours of the stgnature
hereof, Defendants and their attorneys of record
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wtl~ asked to personally appear and show
cause as to why they should not be held m cont~~th1s Court
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Signed on the _Jj_ day of 4f:rt?J