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
5/28/2015 6:07:52 PM
CHRISTOPHER PRINE
FILED IN
st CLERK
1 COURT OF APPEALS
No. 01-15-00423-CV HOUSTON, TX
May 28, 2015
CHRISTOPHER A. PRINE,
IN THE 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
SECOND SUPPLEMENTAL RECORD AND ARGUMENT FOR 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
SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS i
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
SUPPLEMENTAL STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . 1
SUPPLEMENTAL PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUPPLEMENTAL APPENDIX AND RECORD.. . . . . . . . . . . . . . . . . . . . . 5
SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS ii
SUPPLEMENTAL STATEMENT OF FACTS
1. On May 14, 2015, The First Court Of Appeals denied Relator’s
Motion for Temporary Relief staying further action on this discovery
sanction by the Respondent.
2. On May 21, 2015, the Respondent proceeded to hear argument on
the Real Parties in Interest’s Fourth Motion to Enforce the Court’s
Order and granted the motion, imposing additional sanctions above
and beyond those contained in Respondent’s Order Granting Real
Parties in Interest’s Third Motion to Enforce the Court’s Order. App at
448-49.
3. On May 22, 2015, the Relators filed their objections to the orders.
App. at 450.
SUPPLEMENTAL ARGUMENT
4. Relators stand on the argument made in opposition to the
Respondent’s Second and Third Orders Granting Real Parties in
Interests’ Motion to Enforce the Court’s Order. Relators maintain that,
in addition to the April 1, 2015 and April 27, 2015 orders,
Respondent’s May 21, 2015 order is also void or, alternatively,
constitutes an abuse of discretion for which there is no adequate
SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 1
remedy at appeal. See Relator’s Original Petition for Writ of
Mandamus. All arguments made in support of a grant of a Writ of
Mandamus in Relators’ Petition apply with equal force to this newly
issued order. See id.
SUPPLEMENTAL 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; her April 27, 2015 order
compelling discovery and imposing sanctions; and her May 21, 2015 order
imposing sanctions and which upheld the April 1, 2015 and April 27, 2015
orders.
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
SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 2
Texas Bar No. 24080659
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 294 words in this supplemental document which,
when taken in conjunction with the 5847 words in the Original Petition for
Writ of Mandamus and the First Supplement, brings the total to 6141 words
between all documents. 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 28, 2015, this document was served on the
following parties or counsel of records in accordance with Texas Rule of
Appellate Procedure 9.5:
SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 3
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
Hawash Meade Gaston Neese & Cicack LLP
Samuel B. Haren
Texas Bar No. 24059899
2118 Smith Street
Houston, Texas 77002
Tel. 713-658-9001
Fax 713-658-9011
sharen@hmgnc.com
/s/ Paul J. Downey
Paul J. Downey
SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 4
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
SUPPLEMENTAL APPENDIX AND RECORD
TABLE OF CONTENTS
Exhibit AB - Order Granting Plaintiff’s Fourth Motion to Enforce
The Court’s Order. . . . . . . . . . . . . . . . . . . . . . . . . . . App. 448
Exhibit AC - Relator’s Objections to Respondent’s May 21, 2015
Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 450
SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 5
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 custodians of the records at Mosser Law, PLLC.
4. Attached hereto are the following 8 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 AB - Order Granting Plaintiff's Fourth Motion to Enforce
The Court's Order;
b. Exhibit AC - Defendants' Objections to the Court's Order
Granting Plaintiffs' Fourth Motion to Enforce the Court's Order.
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 281h Day of May, 2015.
.A.
Cause No. 2014-10896 ~
~ ~·
Los Cocos Mexican Cafe VIII, Inc.; In the District Court of
Los Cocos 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, l33rd Judicial District
Defendant
Order Granting Plaintiffs' Fourth Motion To Enforce The Court's Order
On this day the Court came to consider Plaintiffs' Fourth Motion to Enforce the Court's
Order (the " Motion"). After considering the facts, law, and argument of counsel, the Court has
dec ided to GRA NT the Motion.
The Court find s that
Defendants and their counsel have violated their discovery obligations by lodging
fri volous objections, making inadequate productions, refu sing to comply with the
Court's orders, and askin g third parties to destroy evidence;
• Defendants' coun sel has acted unprofessionally to the Court, the Court' s staff, and
Plaintiffs' counsel throughout thi s litigati on;
• Defendants have failed or refused to comply with four prior orders from this Court; and
Exhibit AB App.448
• Defendants did not comply with this Court's order even after sanctions were e ntered
and a show cause order was threatened.
The Court hereby imposes the following sanctions:
,-
• Defendants shall pay a sanction of$ S, CX>O ·aCto Plaintiffs. This sanction is based on
the reasonable and necessary attorneys' fees incurred by Plaintiffs in attempting to
secure production of the documents Defendants have failed to produce. This sanction
is to be paid by cashier's check to Hawash Meade Gaston Neese & Cicack LLP' s
IOLTA Account. The check shall be hand-delivered to the offices of Hawash Meade
Gaston Neese & Cicack LLP during normal business hours within forty-eight hours of
the e ntry of this order.
·;=.~lilS'"MoSSe!:au;Jo NhuThncs;,~·~
• ``
-~nthe da o f / ~- :-~
-
--,.m and show cayse as to wily they should not be held in contempt. - ·
•
This order does not rep lace or supplant the Court' s April 27, 20 15 Order Granting
Plaintiffs' Third Motion to Enforce the Court's Order. All sanctions and required imposed therein
remain in force.
Signed at ll:..dl~.m. on the .dl day of_ /l1
-'--"fl
-+--+Y
_ _ _ __ , 201 5.
I
2
Exhibit AB App.449
5/22/2015 12:59:25 PM
Chris Daniel - District Clerk Harris County
Envelope No. 5397684
By: EVELYN PALMER
Filed: 5/22/2015 12:59:25 PM
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
DEFENDANT’S OBJECTIONS TO THE COURT’S ORDER GRANTING PLAINTIFF’S
FOURTH MOTION TO ENFORCE THE COURT’S ORDER
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Defendants, and file these objections to the court’s order granting Plaintiff’s
Fourth Motion to Enforce the Court’s Order, and in support thereof would show the
following:
1. Defendants object to the finding that “Defendants and their counsel have violated
their discovery obligations by lodging frivolous objections, making inadequate
productions, refusing to comply with the Court’s Orders and asking third parties to
destroy evidence.
a. Counsel for Plaintiffs made no evidentiary showing that any of these general
accusations ever took place between the court’s April 27, 2015 order and
May 4, 2015, the day Plaintiffs filed their Fourth Motion to enforce the court
Defendant’s Objections to Court’s Order on Fourth Motion to Enf orce Page 1 of 6
Exhibit AC App.450
order.
b. Counsel for Plaintiffs never made any evidentiary showing that Defendants
were bound by a discovery obligation pursuant to TEX. R. CIV. P. 192.3. In
fact, both of Plaintiffs’ attorneys stated openly to the court that they have not
yet served any discovery requests subsequent to the filing of their Fourth
Amended Petition nonsuiting all prior claims, which has been on file with the
Court since January 21, 2015. Instead, Counsel for Plaintiffs continues to rely
on a discovery request served well prior to the filing of its January 21, 2015
Fourth Amended Petition which nonsuited the claims on which that discovery
request was based and this court’s July 27, 2014 Order Granting Plaintiff’s
First Motion to Enforce to maintain its position that they are owed certain
documents.
c. Counsel for Plaintiffs further made no evidentiary showing that the
Defendants have lodged any frivolous objections to the demand for
production or have produced materials that are less than responsive to a
valid discovery request. They further failed to cite to any such objections and
failed to include any such objections with their motion. Again, Defendants are
not bound to produce any discoverable material to the Plaintiffs in the
absence of a valid discovery request. As previously stated, Counsel for
Plaintiffs rely exclusively on a discovery request and this court’s order which
were mooted by the Plaintiff’s nonsuit of their claims in their Fourth Amended
Petition on January 21, 2015. Plaintiffs have made no discovery requests of
the Defendants since prior to the filing of the Fourth Amended Petition.
Defendant’s Objections to Court’s Order on Fourth Motion to Enf orce Page 2 of 6
Exhibit AC App.451
d. Additionally, a finding of refusal to comply is disingenuous as it ignores the
fact that Defendants filed a Petition for Writ of Mandamus with the First Court
of Appeals, an action permitted by the Texas Rules of Appellate Procedure
when a party feels that the court’s actions are not permitted by the Texas
Rules of Civil Procedure or the statutes. To comply with the invalid discovery
request is to moot Defendant’s right to request extraordinary relief from the
appellate courts. Thus, Defendants are forced to choose between forgoing
the right to seek extraordinary relief or sanctions that harm the defendants’
finances and right to defend this suit. This is no choice, and is precisely what
original proceedings are intended to prevent.
e. Finally, Plaintiffs offered no evidence of any request made by the Defendants
to third parties to destroy evidence since January 21, 2015, and certainly
cannot prove that such a request was made following this court’s Orders
Granting Plaintiff’s Second and Third Motion to Enforce the Court’s Order.
2. Defendants object to the finding that Defendant’s Counsel has acted unprofessional
to the Court, the Court’s staff, and Plaintiff’s counsel throughout this
litigation.Counsel for Plaintiffs offered no evidence of any specific acts of
unprofessional conduct engaged in by the Defendants, and certainly cannot point
to anything that took place between April 27, 2015 and May 4, 2015. In fact, the only
evidence that the Plaintiffs offered the court on this finding was the fact that
Defendants had not complied with the court’s order. Again, the court, having actual
notice of the Petition for Writ of Mandamus filed with the First Court of Appeals,
should take notice that a request for extraordinary relief is the professional method
Defendant’s Objections to Court’s Order on Fourth Motion to Enf orce Page 3 of 6
Exhibit AC App.452
of lodging a formal disagreement with the court regarding an order that it entered,
unless of course the court is of the opinion that filing a Petition for Extraordinary
Relief is unprofessional.
3. Defendants object to a finding that the Defendants have failed or refused to comply
with four prior orders from the Court. Counsel for Plaintiffs relies on orders entered
prior to the August 5, 2014 Settlement Agreement and the January 21, 2015 Fourth
Amended Petition which nonsuited all of Plaintiff’s Claims on which those two orders
were based. The Court should not find that Defendants willfully disobeyed any more
recent order of the Court, as Plaintiffs have not filed any discovery requests in
connection with the sole claim for relief present in their Fourth Amended Petition.
Because the Plaintiffs made no showing of any active discovery requests, the court’s
March 30, 2015 and April 27, 2015 orders cannot be considered valid orders, as the
plaintiffs failed to prove the condition precedent to any relief at the hearings on both
of those motions.
4. Defendants object to a finding that the Defendant’s did not comply with this Court’s
order even after sanctions were entered and a show cause order was threatened.
For the reasons stated above, compliance with a nonexistent discovery request, or
perhaps more precisely, a discovery request mooted by the Plaintiffs’ own hands,
deprives the Defendant of its right to seek extraordinary relief from the First Court
of Appeals.
5. Finally, Defendant’s object to an award of $5,000.00 in attorney’s fees incurred by
the Plaintiffs to secure production of these documents. No evidence was taken by
the court as to the costs of Plaintiff’s attorney’s fees in drafting the Fourth Motion
Defendant’s Objections to Court’s Order on Fourth Motion to Enf orce Page 4 of 6
Exhibit AC App.453
and attending the two hearings held on this matter. Although Plaintiff did try to ask
for attorneys fees relating all the way back to the initiation of this case, the court
rejected this request as moot due to the settlement agreement between the parties
and subsequent nonsuit. Additionally, Plaintiffs tried to enter into evidence the cost
of preparing a response to the Petition for Writ of Mandamus, and the court rejected
this as well. Thus, there was no remaining evidence for the court to consider and
upon which to base a sanctions award of $5,000.00.
Respectfully submitted, MOSSER LAW PLLC
/s/ Nicholas D. Mosser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
Paul J. Downey
Texas Bar No. 24080659
Mosser Law, PLLC
2805 Dallas Parkway Suite 222
Plano, Texas 75093
Telephone 972-733-3223
Facsimile 469-626-1073
courtdocuments@mosserlaw.com
LAWYER FOR DEFENDANTS
Defendant’s Objections to Court’s Order on Fourth Motion to Enf orce Page 5 of 6
Exhibit AC App.454
CERTIFICATE OF SERVICE
I certify that on May 22, 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
Defendant’s Objections to Court’s Order on Fourth Motion to Enf orce Page 6 of 6
Exhibit AC App.455