in Re Allen J. Jones ( 2015 )

FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
10/19/2015 4:15:46 PM
KEITH E. HOTTLE
Clerk
Appendix 1
FILED
10/12/2015 8:04:13 AM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Marissa Ugarte
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSE TO
PLAINTIFF’S MOTION TO COMPEL DEPOSITION OF
DEFENDANT ALLEN J JONES
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES PLAINTIFF CEARTH FAIRE, who herein files her Reply to
Defendants’ Response to Plaintiff’s Motion to Compel the Deposition of Defendant
Allen J. Jones and by this Reply would show the court as follows:
I. Statements Within the Response Are False
Defendant’s allegations that Plaintiff ‘s Motion to Compel Deposition is a mere
vehicle to attack Jones’ character is false. It is true and a matter of record that
Jones has judicially admitted to human trafficking in open court in cause number
2013-CI-04328.
It is also a matter of record that Jones held hostage his infant son in the
1
Dominican Republic for five months to gain financial advantage in the pending
divorce that was finalized on July 17, 2013.
This legal misconduct is a good indicator that without a court order to compel
his deposition he will not appear. The history of this case reflects that he has used
his counsel’s unavailability to resist giving his oral and video-taped deposition during
this pending litigation that has been ongoing for over one year.
Plaintiff would show Jones’ good character, or lack thereof, is by his own
admissions a matter of record for this Court to consider.
II. Plaintiff Has Exhibited Due Diligence Noticing Depositions
Plaintiff again asserts that without a Court Order and a Court assessing
consequences for resisting the oral deposition, Jones will not make himself available
for the deposition. This case was filed on October 21, 2014, and continues with no
end in sight. Although trial is set for March 7, 2016.
Plaintiff files with this Reply a summary of efforts to depose Jones together with
pleadings, letters and Rule 11 Agreements that disprove all of the factual allegations
contained in Defendant’s Response. See Exhibit “A” attached herein and
incorporated for purposes.
CONCLUSION & PRAYER
2
Plaintiff respectfully requests this Court consider the character of Jones
that by his own admissions shows total and complete disrespect for the system of
justice and can anticipate that he will not present himself for the oral deposition
presently noticed for October 27, 2015. Plaintiff prays that after notice and hearing
and consideration of the false representation made in Defendant’s Response that
the Court deny their requests for attorney fees and grant to Plaintiff the relief
requested in Plaintiff’s Motion to Compel. Plaintiff prays for all other and further
relief to which Plaintiff is entitled.
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argyle2@sbcglobal.net
By: /s/ Olga Brown_________
OLGA BROWN
State Bar No. 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 12TH day of October 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Second Motion to
Compel Deposition of Defendant Allen J Jones was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
3
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
::.7°NREP:INEERT:
Defendant omitted that their 9].a Motion was filed December 2
• • • • • • • • • • • • .• • .• • .•. :
Page 1 of Defendant's Response !2014.:(AFTERiDaposition:::noticof:J247/014)H.:."
Plaintiff attempted to confer on new dates Dec 18, 2014
Plaintiff offered Rule 11 agreement 'Dec 29, 2014
Defendant "made``no f urther: efforts to schedule or take :'J'0n'esr 'i'
Page 1 of Defendant's Response DepOSition.
......
Plaintiff attempted to confer on new dates Dec 18, 2014
Plaintiff offered Rule 11 agreement Dec 29, 2014
Page 2 of Defendant's Response !Plaintiff next nOtiCed;IdnedepoSititin foe. April'13 -:21115:H
Plaintiff attempted to confer February 24, 2015 and March 13,
2015
,Nun.
Page 2 of Defendant's Response Jaimants counsel elected to cancel this deposition setting
Claimant's counsel asked for alternative dates for deposition
because Defendants had yet to produce complete Responses to
Discovery Requests, in letter dated April 6, 2015
Plaintiff allowed the matter of deposition to languish for nearly
Page 2 Para 2 of Defendant's Response months until she unilaterally noticed for Oct 2, 2015
Plaintiff Amended Petition Jun 19, 2015
Plaintiff served Second Amended Notice of Deposition August 28,
2015, setting for October 2, 2015
Plaintiff noticed the deposition of Jones in a companion matter in
September 18, 2015, which ALL JON ES quashed
Defendant claims Jones was "ready to appear" for his deposition
on October 2, 2015, YET Defendant counsel was unavailable - by
his written letter of September 30, 2015
Plaintiff proposed a Rule 11 agreement regarding dropping the
Amended Docket Control Order - Counsel for Defendant
handwrote his request to reset depositions, which Plaintiff did.
TWIN'Er4g2412iiitf
Plaintiff's repeated, baseless, inflammatory, and sanctionable
Page 2 para 4 of Defendant's Response attacks on Mr. Jones' character belie the arguments..
Plaintiff's pleadings speak for themselves, and are facts for a jury
to determine
;!'1.1.,.......ascr.r, • UZI
.intant:MOtion:serves: as a:vehiCle:by
••••:••
• •:.:.• • noy
: .........
Page 2-3 of Defendant's response aria unwariantectcOsts.On:Jones...:.:::.::.
Defendants abuse of discovery, even when compelled by the
Court, and harassing pleadings in Justice Court and County Court
are harassing, retaliatory for Plaintiff asserting her rights
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
•
Defendant JOnes has:!full
yPorriplied with the:R.ules:,anaany:.and..:a.mi,,i
entered:iii:::this. andsO
•• Plaintiff•srequestfor
Page 3 of Defendant's response SanctiOnS:SfibUtd.:be.:denied
Defendants have and continue to abuse discovery, despite an
Order from Judge Sakai, upon which Plaintiff has attempted to
confer on several occasions
Attempt to Confer October 5, 2015 re discovery withheld
Second and Final Attempt to Confer October 7, 2015 with BATES
references
EXHIBIT A - Reply to Response - Mtn to CompelNoDepo
Oct 6 2015 9:19AM 0597 Jones
P 2
SCHMOYER
REINHARD LI,P
Alior,a9s of Law
^,^
17808 IH 10 West Suite 400 • Sari Antonio Togas 78267 v Office: 210 447 8033 , fax: 210.A418036 • www sr .1Ip corn
J1.IS IN BARTIOUR
210.447.8033 (tel.)
210.447..8036 (fax)
jbarbour@sr-l10 corn
October 6, 2015
VIA FACSIMILE 210126.1884
Olga Brown
Law Office of Olga Brown
111 Soledad, Suite 1725
San Antonio, Teas 78205
Re: Cause No. 2014.CI-16674; Cearth Faire v. .FNIP SA Management Group, LIE
d/b/a Food Management Partners, LLC et al; In the 150th Judicial District Court,
Bexar County, Iexas
Out File No 108 023
Dear Ms Brown:
This letter is sent in response to your letter dated yesterday regarding Plaintiffs Motion
to Compel Mediation in the above-styled matter. As no depositions have been taken in this case,
Defendants cannot agree to mediation at this time, nor can we agree to drop the Oetober 9, 2015
setting on Defendant Kemp's Rule ,91a Motion to Dismiss, We will, however; agree to
mediation after the parties have had a chance to take specified deRosi#ons.,,EQr PefendarXtifi -
woulctrectuiteropportunitY7todePPse-Plailliliff.before„.a0-silati*lialkif*''s4E014-0I
would similarly anticipate you may wiiiffo-fake -i-fewdepb-Siti-on's-befaeisedialitill, as If
that is the case, we would kindly ask that you indicate which depositions Plaintiff will want in
advance of mediation,
If this proposal - to agree to mediate followkg the completion of specified depositions -
meets with your approval, please indicate such and I will draft up a proposed order fox your
review If this does not meet with your approval, I would nonetheless kindly ask that we reset
the hearing date on your Motion to Compel Mediation As I indicated to your office yesterday, I
have a previously scheduled family medical appointment tomorrow at 8:40 am., which will
prevent me from attending the hearing. If you would be willing to reschedule the heating, I am
available to attend on Friday, October 9, following the completion of our hearing on Defendant
Kemp's Rule 91a Motion to Dismiss, or next week on October 12, 14, or 15.
As always, thank you for your courtesies and consideration.
Received Time Oct 6 M2AM
EXHIBIT
Oct 6 2015 9:19AMA - Reply to Response - Mtn to Compel NoDepo
0597 Jones
P 3
Olga Brown.
L aw Office of Olga Brown
October 6, 2015
Page 2
Sincerely,
—
xi Barbour
IB:vp
4
17806 IH 1p West, SOW 400 San Antonio, Texas 78257- Office: 210 497 0033 • Fax: 210..447,8036 •
Received Time Oct 6 9:12AM
EXHIBIT A - Reply to Response - Mtn to CompelNoDepo
Octb 2015 9:18AM 0597 Jones
SCI MOYER
REINIIARD LLP
eireetwo er Low
a Antonia, Texas 76257 • Attica: 210 447 8083 - Fax: 210447 8036 • %Wew sr-frp corn
17808 1f-f 10 West Suite 400 Sr
Data October 6, 2015
To: Company; Fax: Phone;
Olga Brown Law Office of Olga Brown 210.226.1884 210.226.1550
From: Company: FaX Phone:
Justin Barbour Schmoyer Reinhard LLP 210.447.8036 210.447.8033
Pages: 3
Re: Ceafth Faire vF'MP, eta! 1na 023
Cl Urgent 21. For Review El Please Comment El Ploaso. Reply 0 Please Recycle
Please see the following attachment ORIG1NAL(S) WILL NOT FOLLOW
Ule infornnat ion contained in this facsimile massage is altorneydlictu priheged and cortfidectial, and is intended only for die use of the individual es entity named *ave. lite reader of this
message is not the intended recipient, or dm employee exegetic responsible to deliver it to the intended recipient,-you am hereby noliSed that any dissemination, distribution or copying, of this
communication is strictly probibired Tryon have received this communication in error, please eotifyli$ Immediate by telephone, and return the original =tango to os by mil sr rho oddras
allows
Received Time Oct 6 9:12AM
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN
111 SOLEDAD, SUITE 1725
SAN ANTONIO, TEXAS 78205
(210) 226-1550
TELKOPiER (210)226-1884
Aravre2@sto fobat net
October 7, 2015
Via facsimile (210) 447-8036
Justin Barbour
Schmoyer Reinhard LLP
17806 IH 10 West, suite 400
San Antonio, TX '78257
Re: Cause 2014-CI-16674, Cearth Faire v Fmp Sa Management Group, LIc
D/B/A Food Management Partners, Lk, All Jones Llo, Allen J Jones,
Individually, And Peter Donbavand, Individually, In The 150th Judicial
District, Bexar County, Texas
Second and Final Attempt to Confer
Dear Mr. Barbour:
Thank you very much for your letter of October 7, 2015 The letter includes a
representation that you have provided "a wealth of documents pertaining to the
Timber Place home" but nowhere amongst those documents did you provide the
lease purchase agreement or amortization schedule the subject of many entails
between Peter Donbavand and Adele Wang. Please see your clients' DEF-CF-
00592. Nowhere did your clients produce the sales contract, in its entirety See
DEF-CF-00158.
Further, let's agree that at the time I appeal Judge Arteaga's ruling, the
Fourth Court of Appeals will be reviewing the claims de novo. The review will strictly
be a question of law Did the Plaintiff give the Defendants 'fair notice" of her claims
against them?
I completely and fully disagree on the finality of the claims Judge Arteaga
even granted a "motion for summary judgment" when there were no pleadings to
support the ruling .
Further, the scope of discovery will allow me to go into all documents that I
have requested. So, let's talk about the requests and if I do not have the documents
by Monday, October 12, 2015 I will seek court intervention, Your. threats of
sanctions by Defendants may be grounds for sanctions against your clients Thank
you and I look forward to hearing from you
Respectfully,
Th
OLGA B OWN
OB/mf
cc Cearth Faire
File
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
P 1
* * * Memory TX Result Report ( Oct 7 2015 12:53PM ) * * *
1) Law Office of Olga Brown
2) 210-226-1084
Date/lime: Oct 2015 12:52PM
File Page
No Mode Destination Pg (s) Result Not Sent
8165 Memory TX 4478036 P. 1 OK
Reason for crtor
5 1 Hang up or lino fail E 2) Busy
E 3 No answer E 4) No facsimile connection
E 5 Exceeded max E-mail size
LAW OFFICE OF OLGA BROWN
SOMOMEX1711r26
GANANTOM7ECA37076
ale) MUM
TCLECOVell MO) 2221.1484
6,26g4WWQ4AIVI
OttObar 7 2015
Vto facsimile 1210)4474035
JustIn8ssbour
Schrooyor Reichard LLP
171308 I H 10 Woe; auks 408
San Antonio, TX 743257
Re: Cause 28144146874, Coodh Fero, a Fare So Managomont Gaup, Lie
D/B/A rood hfanagamord Partners L dc, Al Jenea LA Men JJonoo
loevidooily. Aid Pablo Donlrovand, Individually, lithe 150°1)114dd
Maid Soar County Tacos '
Second and Flnar 4ftornpt to Confer
Peer r.i.nr Barbour:
That* yea yen, muchforyour loaor of October7, 2073 The latter leductes a
renroaxitstion that you have provided'a wad*ofdocumentspataning to the
*ohm' Mew home but nowhere among:Atha! documentsdid you provide tho
twee purchase agreement or amortisation elthedu1e the sublett of many emelts
between PeSsiDonbovend end Mere Wong. Please sea Ker atm& DERCF-
DMZ &whore did your Giants produce the asIes contract. kills entirrey See
DV-SF-0015S.
Further, Me %ace 'hot allthe tkre. Appeal Judge Art:togas :ilea too
Fourth Ccurt efAppoole vel be seriesrig that:terms de novo. Tho review wilt stricey
be a questhan of law lAd the Plainer/ gke the Defendant/ 'far notion- of ber &Imo
egotist than? '
comp**end fay disagree on the finality of Ihe Orbs. Jude1te Mona*
even granted o 'Imam for eurnmoariudomorre when there ware no prearreage to
uwortleareffm
Further, the nospe ofdisooveryvrt0 anew mote go !Mod dOnentorns that I
hove requested. So. lett talc atrtort the Mounts and ITi do not haVo no documents
isS, &Wage& October 72;20151 ualcscrok toust Intaveatton. Your Ike= of
=am by Defendants rosy no moods foram:Sone agenst your awls Shenk
you and I look Lessard to hearing from you
Resicodfully,
°LOA
OWlmt
Cairat Rare
Frto
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN
111 SOLEDAD, SUITE 1725
SAN ANTONIO, TEXAS 78205
(210) 226-1550
'TELECOPIER (210) 226- 1884
Argyle2@sbcgrobal net
October 6, 2015
Via facsimile (210) 447-8036
aistin Barbour
Schrnoyer Reinhard LLP
17806 IH 10 West, suite 400
San Antonio, TX 78257
Re: Cause 2014-CI-16674, Cearth Faire v Fmp Se Management Group, Lk
D/B/A Food Management Partners, Lie, All Jones Lie, Allen J Jones,
Individually, And Peter Donbavand, Individually, In The 1501" Judicial
District, Bexar County, Texas
ATTEMPT TO CONFER - Discovery Withheld
Dear Mr. Barbbur:
I am writing to confer over your clients' still unresolved evasive and/or
incomplete responses to Plaintiff's multiple Identification Interrogatories and
Requests for Production
Your clients have deliberately and willfully withheld documents that are
responsive to my client's requests, and are also relevant to her claims
Specifically, but not limited to emails, text messages and other
correspondence and documents regarding 8647 Timber P1, and your client Allen
Jones' intentions, actions with regard to Ms Faire's claims.
I look forward to hearing from you again very soon.
Respectfully,
ZDK-A—An
OLGA ROWN
OB/mf
cc Cearth Faire
File
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
P 1
* Memory TX Result Report ( Oct 6 2015 10:45AM ) * * *
1) Law Office of Olga. Brown
2) 210-226 - 1884
Date/Time: Oct 6 2015 10:44AM
File Page
No Mode Destination Pg(s) Result Not Sent
8156 Memory TX 4478036 P. 1 OK
Reason for error
E 1) Hang up or line fail
E 3) No answer E to connect ion
E 5) Exceeded max E—mail size
LAW OFFICE OF OLGA BROWN
111 &WM% U11131720
13.1210.71133110.1117.011112101
:60000
meow
ft0110 22044 04
2120272:42211122011151
October 6 2015
ylaracaledlettl0Y4474038
.fustiollarbour
Scheroyer Reinhard LLP
17808 il-1101.1Tent, suite 400
San Antonia TA 78257
Re: Cause 2014-0148874. COorthFolro u Frop So Maopgomont Gomp, Llo
A/EVA Food M00000marttPortools, Lk, A a Jones Lk Alm .1401204
Nth/Moat& And Peter Dortdavon4 Indifiduady In JudEclel
Meld Ben:County Tens
ATTEMPT TOCoalFER—Tdscovorytanthbord
Dear Mc Barbour:
1 ern vatUng to meet over your dared end unresolved evasive and/or
in:omelet. responses to Pialnlitts mutt* htentittcation Ibtensotodes and
Request:icor Prows=
Your clkres have doltberatey and WIWI!? withheld documents that ere
responsive to my cllenTs requests, and are also relevant to her dolma
Seesilkelly, but not Inked to einaDs, text messages and ether
correspondence and docannents reconfirm 8847 Thaw Pl. end your orient Allen
.knee' intentions
s, adicos willizegardto Ms. Fadrot clans.
I look-formai to herein from you again very con
Respectfully.
01110
08/rnf
co Cearth Fake
Flo
EXHIBIT A - Reply to Response - Mtn to CompelNoDepo
Sep 29. 2015 3:16PM 0577 Jones
P 2
Sep 29 2015 2:49PM Law Office of Olga grown No 812b 1
FILED
9/30/2015 11:57:51 AM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Frances Gonzales
LAW OFFICE OF OLGA BROWN
111 SOLEDAD, MATE1725
SAN ANtromo, TEXAS 78206
(210)226-1550
71ELE.COPIER (218)228.1884
aepternbar 29, 2015
Via facsimile (210) 447-8036
Justin Barbour
Schmoyer Reinhard L• LP
17806 11.1 10 West. suite 400
San Antonio, TX 78257
Re: Cause 2014. CI-16674, Cearth Faire v. Fmp Se Management Group, Llc
D/I3/A Food Management Partners, Lic, All Jones Lk, Allen J Jones,
Individually, And Peter Donbavand, Individually, In The 180uT Judicial
District, Bexar County, Texas
RULE 11 AGREEMENT
Dear Mr. Barbour
Would you consider dropping the Amended Agreed Docket Control Order,
currently in place now, to avoid me having to go to Monitoring Court to get relief
from the Level 3 Docket Control Order If you do agree, please sign below and I
will file this agreement with the Court and forward a conformed copy.
A.5(.4 s‘sioci ffiti4V5
C15(401.4-. fa$ (4*scf
Getri•ko t* 30o, 301/s4 .., 14/
ot,46;ee 4›, eoif 4c,h4er Ab f)31 a; r AS IS,
or aisvf14i Pligkdk"1/41 dAtelia)
RE
u n r
A y for Defendants
Received Time Sep 29 3:09FM
Sep 30 EXHIBIT
2615 11:41AMA - Reply to Response - Mtn to CompelNo
Depo
OW Jones
r4111111 SCIiMOYER
REINI-IARD LLP
Alitornejs al Law
17805 III 10 West, Suite 400 • Gen Antonio, Texas 70257 • Offiee: 210 447 0033 • Fax: 210 447.8035 • vAvw Sc. Hp cam
JUSTIN BA REOT1i%
2x0.447,8033 (tel )
210.447.8036 (fax)
jbarbour@stAlp coin
September 30, 2015
VIA FACSIMILE 210.226.1884
Olga Brown
Law Office of Olga Brown
111 Soleda.d, Suite 1725
San Antonio, Texas 78205
Re: Cause No 2014-CI-16674; Cearth Faire v. FM? SA Management Group, LLC
d/b/a Food Management Partners, LLC et al; In the 150th Judicial District Court,
Be= County, Texas.
Our File No 108 023
Dear Ms :Brown:
This letter follows up on-ourc:Cinie ronsjesterdWreglirdifietliedepO§itiblislontilifiz
Jones and...jason-ICepp; yhichzare,:yreyfriOri- rfOFFiatif,TOciblier,72,7/0-tligAirirexi
stoirina'—irei—ks-i indicated, annnexpected conflict h-a's arisen, which will unfortunately prevent
my attendance at those depositions. From our conversation, I understood these depositions
would be continued until a later date, and I specifically offered October 26-29 as dates on vvhich
the witnesses and I were available to reschedule the depositions. This letter is simply meant to
confirm that these depositions' October 2 setting have in fact been cancelled. If this is incorrect,
please notify me of such at your earliest opportunity but, in any case, no later than 2:00 p m. this
afternoon. Alternatively, if you wish to discuss alternate dates on which the depositions may be
rescheduled, I am available at your convenience
As always, thank you fin your courtesies in this matter
JB:vp
Received rime Sep 30. 11:34M
EXHIBIT A - Reply to Response - Mtn to CompelNoDepo
Sep 30 2015 11:41AM 0580 Jones
P 1
a SCHMOYER
REINHARD LT
AItorn.): at law
17806 Ili 10 West SUifer 400 San Ante*, Texas 78257 • OftiCe: 210447.8033 • Fax: 210 447 8038 .1.vmar sitirp corn
Fax
Date: September 30, 2015
To: Company: Fax: Phone:
Olga Brown Law Office of Olga Brown 210.226.1884 210.226.1550
From: Company: Fax: Phone:
Justin Barbour Schrnoyer Reinhard LLP 210.447.8036 210.447.8033
Pages:
Re: Cearth Faire v FMP, eta! 108.023
0 Urgent El For Review 0 Please Comment El Please Reply E.1 Reese Recycle
Please see the following attachment ORIGINAL(S) WILL NOT FOLLOW
The information contained in this facriini re mange it Attorney olient ptivi iced and cooficknOokand is intended only for the use ofitic individual or ecifiV named above.Ifthe reader of this
easesageisnottheintendedreciprenI,ortheemployeeoragentresponsibletodeliverittotheintendedreofelenr,yon aro hereby notified ass any dissemination. distribution or conyiris of this
communication is strictly prohibited Ilya% have received this communionliOn i i meal Ocala nod& ns immediarety hy telephone, and return the original message to vs by mar] ac the address
g ova,
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2 of 7 - Mtn to Compel Depo Jones
CAUSE NO. 2015-CV-05205
ALL JONES, LLC, 11\T THE COUNTY COURT
Plaintff;
v. AT LAW NO, 3
CEAR 111 FAIRE,
D4fendants. BEXAR COUNTY, 1EXAS
lailitTIEFFISMOTIONLTOWASH:DEPOSITIONAM/CrOTALLENEXI.
ANDIOR MOTION FOR PROTECTIVE ORDER
Plaintiff All Jones, LLC, files its Motion to Quash Deposition Notice of Allen J. Jones
and/or Motion for Protective Order pursuant to Rule 192.6 and 199.4, and in support thereof
respectfully show as follows:
1. Plaintiff All Jones, LLC initiated this action on. August 25, 2015, seeking an
appeal of the decision of the Justice of the Peace, Precinct No. 2, Bexar County, Texas, in an
underlying eviction proceeding.
2 Itp—faTabiErk2P13:1Pifert iiifi—er* her NOtiveofiritawgrTakethe- Oral
anskVidataped-Deposition-ofAllerdlones. x. 1, Jones Depo. Notice.. Defendant unilaterally
set Mr, Jones' deposition for September 23, 2015, just three business days after service thereof,
despite never having first conferred with Jones, his counsel, or counsel for Plaintiff All Jones,
LLC.. Id. Moreover, Defendant set this deposition for her own counsel's office.
3 Mr. Jones is not a party to this proceeding in his individual capacity, as the
deposition has been noticed, Additionally, the deposition notice does not seek the testimony or
appearance of a corporate representative of Plaintiff, as provided for in the Texas Rules of Civil
Procedure.
1
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3 of 7 - Mtn to Compel Depo Jones
4. Due to previously scheduled matters, Mr. Jones is unavailable to attend his
deposition 011 the date unilaterally noticed by Defendant. Accordingly, Plaintiff objects to the
time and place designated for his deposition and moves to quash the deposition notice pursuant
to Rule 199.4. See T. R. Cm. P. 199 4.
5. For the foregoing reasons, pursuant to Rules 192.6 and 1994, Plaintiff Ali Jones,
LLC objects to, moves to quash, and moves for a protective order as to Defendant's Deposition
Notice of Allen J, Jones. This Motion to Quash and/or Motion fig Protective Order is filed
timely, within three business days of Defendant's service of the underlying Deposition Notice.
See nx, R. QV. P. 4, 199 4. The time and place noticed by Defendant is unreasonable, as is the
form and substance of the deposition notice itself. Plaintiff therefore respectfully requests that
this Deposition Notice be quashed and/or that a Protective Order be entered with regard to this
Notice. Plaintiff also prays the Court grant it any other relief to which it may be entitled.
Respectfully submitted,
Rob6rt N. Ray
State Bar No. 15606500
7272 Wurzbach Road, Suite 1401
San Antonio, Texas 78240
(210) 733.4399
(210)733-9819 (facsimile)
robertmay@sboglobal.not
ATTORNEYS FOR PLAINTIFF ALL
JONES, LLC
2
Received time Sep 22. 4:29PM
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4 of 7 - Mtn to Compel Depo Jones
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served via electronic service
and facsimile to:
Olga Brown
Law Office of Olga Brown
111 Soledad, Suite 1725
San Antonio, Texas 78205
(210) 226-1884 (facsimile)
argyle2@sbegiobal ,net
on this 22nd day of September, 2015.
Robert N. Ray
3
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5 of 7 - Mtn to Compel Depo Jones
EXHIBIT I
Received Time Sep 22 4:29PM
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to Response
8 of 7 - Mtn to Compel Depo Jones
CAUSE NO. 2015M/0620S
ALL JONES, LLC 6 IN THE COUNTY COURT
Plaintiff 6
6
Va. 6 AT LAW NO. 3
6
CEARTH ,FAIRE 6
Defendant 6 BEXAR COUNTY, TEXAS
DEFENDANT'S NOTICE OF INTENT rO TAKE THE ORAL AND
VIDEOTAPED DEPOSITION OF ALLEN 4 JONES, PRINCIPAL OF ALL
JONES, LLC
TO: Plaintiff, Allen J Jones, by and through his attorney of record, RoBERT
RAY. 7272 Wurzbach Road, Suite 1401, Texas 78240
Please take notice that on the 23rd day of September 2015 and
Continuing thereafter from the day until completed Defendant by and through her
attorney of record, Olga Brown, will take the vat and videotaped deposition of
Plaintiff, ALLEN J JONES, pursuant to Rule 198 of the Texas RUles of Civil
Procedure at 1:30 p.m at the Law Office of Olga Brown, 111 Satedad, Suite
1728, San Antonio, Texas 78205,
Your attention is directed to the penalties set forth in Rule 215 of the
-foxes Rules of Civil Procedure for failure of the deponent to appear or to comply
With the discovery requested
Such deposition and answers shall be taken to be used and read In
evidence upon trial in the above styled and numbered cause relevant to Issues
raised by Defendant.
Cam& toi5cvos2a
Dyindottrt Wake °Awe ta Thum Me CA2i ondlirleolopeiDepottIon Mier, norm: Paga
Received Time Sep 22 4:29PM
EXHIBIT A - Reply Page
FaxService to Response
7 of 7 - Mtn to Compel Depo Jones
You are Invited to attend and examine the witness.
RespactMlly submitted,
LAW OFFICE OF OLGA BROWN
SY: / Ma &awn
OLGA BROWN
State Bar No. 03165500
111 soledad, Suite 1726
San Antonio. Texas 78205
210/226-1550 Telephone
210/228..1884 Facsimile
6rdytanaboglobalnet
ATTORNEY FOR Cearth Palm
CERTIFICATg OF SERVIU,
I do hereby certify that on the 18th day of Sep 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Defendant's Notice of Intent to Take the Oral and VIdeotaped
Deposition of Allen J Jones was furnished to:
ViN e•serve
Mr. Robert N Ray
Lew Office of Robert N Ray
7272 Wurzbach Rd, Suite 1401
San Antonia, TX '78240
Olgp Brow??
OLGA BROWN
Cam 21)(5CV05205
DOnOaneanattaaafin tint taltka the Ora! and Viarplaind Deporlikh of;Affon)Jones Page 2
Received Time Sep 22 4:29PM
FileTimeEXHIBIT A
FaxService - Reply Page
to Response
1 of 7 - Mtn to Compel Depo Jones
The Law Office of Robert N
Ray Received Tire 09/22/15 04:35 PM
TRCP 21a. - Service by Telephonic Transfer
As provided by I RCP 21a, this document is sent to you using FileTime Fax Service.
Date: 09/22/15 04:35:PM
To: Olga Brown
Fax Number: (210) 226-1884
From: Cheryl Henson
The Law Office of Robert N. Ray
7272 Wurzbach Rd., Ste 1401
San Antonio, TX 78240
Phone Number: (210) 733-4399
Re:
Service Document(s): Motion (No Fee) (20150922162149661 pdf)
Case Number 2015cv05205
Court bexas:cc
Jurisdiction Bexar County - County Clerk
Total Number of Pages: 7 (including cover sheet)
PRIVILEGED AND CONFIDENTIAL
This facsiMile transmission may contain privileged confidential information and is
intended for the sole use of the addressee If you axe not the intended recipient, or the
person responsible to deliver the message to the intended recipient, you are hereby
advised that any dissemination, distribution or copying of this communication is
prohibited If you have received this facsimile in error, please notify the sender and
destroy all copies of the original facsimile message
Received Time Sep 22 4:29PM
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
CAUSE NO. 2014-CIA 6674
CEARTH FAIRE IN THE DISTRICT
Plaintiff
V., §
150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT
GROUP, LLC, DIBIA FOOD
MANAGEMENT PARTNERS, §
LLC,
ALL JONES, LLC, ALLEN J
JONES, INDIVIDUALLY, AND §
PETER DONBAVAND,
INDIVIDUALLY
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF'S SECOND AMENDED NOTICE OF INTENT TO TAKE THE ORAL.
AND VIDEOTAPED DEPOSITION OF DEFENDANT, ALLEN J JONES
TO: Defendant, Allen J Jones, by and through his attorney of record, Christine
E Reinhard, 17806 IH 10 West, Suite 400, San Antonio, Texas 78257
Please take notice that on the 2nd day of October 2015 and continuing
thereafter from the day until completed Plaintiff, by and through her attorney of
record, Olga Brown, will take the oral and videotaped deposition of Defendant,
ALLEN J JONES, pursuant to Rule 199 of the Texas Rules of Civil Procedure at
9:00 a m at Schmoyer Reinhard LLP, 17806 IH 10 West, Suite 400, San Antonio,
Texas 78257.
Your attention is directed to the penalties set forth in Rule 215 of the
Texas Rules of Civil Procedure for failure of the deponent to appear or to comply
with the discovery requested.
Cause No. 2014-C11E674'
Plaintiff's 5econdA►nended Notic-e of intent to Take the Oral and Videotaped Deposition of Defendant Allen I Jones Page 1
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
Such deposition and answers shall be taken to be used and read in
evidence upon trial in the above styled and numbered cause relevant to issues
raised by Plaintiff.
You are invited to attend and examine the witness.
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
BY: /s/ Olga Brown
OLGA BROWN
State Bar No 03155500
111 Soledad, Suite 1725
San Antonio, Texas 78205
2101226-1550 Telephone
210/226-1884 Facsimile
Argyle2@sbcolobal.net
ATTORNEY FOR Cearth Faire
CERTIFICATE OF SERVICE
I do hereby certify that on the 28th day of August 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff's Second Amended Notice of Intent to Take the Oral and
Videotaped Deposition of Defendant, Allen J Jones was furnished to:
VIA FACSIMILE (210) 447-8036
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 1H 10 West, Suite 400
San Antonio, Texas 78257 n+O.C._a_4/(
Is/ Olga sown
OLGA BROWN
Cause No 2014-CI-16674
Plaintiff's Second Amended Notice of Intent to Take the Oral and Videotaped Deposition of Deftndant,Allen ir Jones Page 2
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN
111 SOLEDAD, SUITE 1725
SAN ANTONIO, TEXAS 78205
(210) 226-1550
T ELECOPIER (210) 226-1884
ArovIe2(asboarobalnet
August 28, 2016
Via facsimile (210) 447.8036
Justin Barbour
Schmoyer Reinhard LIP
17806 IH 10 West, Suite 400
San Antonio, TX 78257
Re: Cause 2014-CI-16674, Cearth Faire v. Fmp Sa Management Group, Lk
D/B/A Food Management Partners, Lic, All Jones Lie, Allen J Jones,
Individually, And Peter Donbavand, Individually, In The 15e Judicial
District, Bexar County, Texas
Re: Deposition Notices
Dear Mr. Barbour:
Enclosed please find Deposition Notices for Defendant Allen J Jones and
Defendant Jason Kemp..
I have noticed these far enough in advance for scheduling issues, if any,
to be resolved
Please give me a call if you wish to discuss this matter further. Thank
you.
Res • ectfully,
-\
OLGA B OWN
OB/mf
Enclosures (as stated)
cc Cearth Faire
Fife
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
P 1
* Memory TX Result Report ( Aug 27 2015 3:17PM ) * * *
0 Law Office of Olga Brown
2) 210-226-1884
Date/Time: Aug 27 2015 2:00PM
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EVEARodfiffaruccementardners,114,NUonesMAConJdones.
irmilvidaely,AMPotorDeurbavond, indityldually, In The I50P Jurrictal
District, Be= County Tee
Re: Deposition Notices
Deer Mt Bgilsoun
Enclosed please find Deposition (+hitless for Defendant Alien J Jonas and
Defendant Jason Kemp.
I have noticed these iv enough in edvroce for scheduling issues, if any,
to be resolved.
Please give Flo a call If you wish lo discuss this raster further Thank
OrJmi
Endoscresinstabld)
06 Cosath Faire
EXHIBIT
Jol 9 2015 2:05PMA - Reply to Response - Mtn to CompelNoDepo
0281 Jones
P 2
pinSCHMOYER
ea REINHARD r nrovs at law
I.I.P
17808 11-110 West, Sae 400 *San Antonio. Texas 78257 • Office; 210 447 8093 *Pale 210.447 8038 * wWW..ar-Hp coal
AMIN BARBOUR
210 417 8033 (to )
210447.8036 (fax)
,jbarbour@sr ..11p corn
July 9, 2015
VIA FACSIMILE 210.226.1884
Olga Brown
Law Office of Olga Brown
111 Soledad, Suite 1725
San Antonio, Texas 78205
Re: Cause No. 2014-C1-16674; Cearth Faire v. FMP S'.,4 Management Group, LLC
d/b/a Food Management Partners, LLC et al; ba the 150th Judicial District Court,
Bexaz County, Texas
Dear Ms. Brown:
As you will recall, last week the parties agreed to continue their hearings on various
matters, including Defendant Jason 1Cemp's Rule 91a Motion to Dismiss and the .parities ,
..discoverrinotiongcto allow them an opportunity to confer regarding their underlying disputes.
Please indicate dates and times when you might be available to schedule a call regarding these
matters and the parties' requests for relief, so that such a conferral conference can be scheduled.
In the event the parties are unable to reach an agreement as to any of the motions at issue,
would recommend we set such motions fox hearing sometime during thervrabfrilY-2
Please let me know if you have any questions, and I look forward to heating from you.
Sincerely,
JB/vp
Received Time Jul 9 1:59PM
EXHIBIT A - Reply to Response - Mtn to CompelNoDepo
Jul 9 2015 2:05PM 0281 Jones
P 1
SCHMOYER
REINHART) LLP
Aiturhait,. as l am
17806 li-f 10 West. Suite 400 • Sen Amonio Texas 782$7 • Office: 230 447 .8033 • Fax 210 447 8036 www sr:
Fax
Date Jury 9, 2015
To: Company: FMK: Phone:
Olga Brown Law Office of Olga Brown 210.226.18134 21 0.22a 1660
Fromc Company: Fax; Phone:
Justin Barbour Schmoyer Reinhard LLP 210.447.8036 210.447.8033
Pages: (9--•
Re: Cearth Faire v FMP, et a/ 108.023
0 Urgent ET Par Review 0 Please Comment 0 Please Reply 0 Please Recycle
Reese see the following attachment ORIGINAL. (S) WILL.NOT FOLLOW.
1.12 t1116701021°11"nTatacd M this iaesireile ntOOanyc is catenickaor Priv; railed and COn'f deotial. and is intended only tar the rise Of die individual a entity named above. if the render of di is
massage is not tho intended reolnient or dm employee or agent reaponsrblo tei deliver it to the intended recipient, you ere hereby notified :hal any disseminati on, distribution or copying of this
communication is strictly prohibited. If you have reeohled this communication in error, please may Re irnTriedialcly by Telephone, and return the original message to us by wail at the addresi
above
Received Time Jul 9 1:59PM
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN
111 SOLEDAD, SUITE 1725
SAN ANTONIO, TEXAS 78205
(210) 226-1550
TELECOPIER (210) 226-1884
Arqyre2(8sbccilobalnet
April 6, 2015
<
Via facsimile (210) 447-8036
Justin Barbour
Schmoyer Reinhard LLP
178061H 10 West, suite 400
San Antonio, TX 78257
Re: Cause 2014-CI-16674, Cearth Faire v.. Fmp Sa Management Group, Lic
D/B/A Food Management Partners, Llc, All Jones Lic, Allen J Jones,
Individually, And Peter Donbavand, Individually, In The 150th Judicial
District, Bexar County, Texas
Re: Reschedule of Depositions of Parties
C
Dear Mr. Barbour:
Please be advised, that today, I will have a copy of the transcript from Judge
Sakai's hearing of February 24, 2016 During this hearing, he denied your Motion for
Protective Order . Please see the attached
1----------1 The Defendants have yet to produce complete Responses to our Discovery
Requests Therefore, I will 4e_ortacting your office for another date r the
depositions of Defendant Allen J Jones, Defendant Peter Donbavand, and acy Amass,
Director of HR --------
L.-----
r The incomplete Responses are contrary to Judge Sakai's ruling. Therefore,
pleaseprovide me with alternative dates with sufficient time that wo allow me time to
file a Motion to Compel if necessary.
If you wish to discuss this matter further, please give me a call, or we can discuss
further April 7, 2015
Respectfully,4.
OLG BR
OB/mf
Enclosures (as stated)
cc Cearth Faire
File
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
P 1
* Memory TX Result Report ( Apr 6 2015 10:26AM ) * *
W. (ags,V Olga Brown
Date/Time: Apr 6 2015 10:25AM
File Page
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LAW OFFICE OF OLGA BROWN
litta1COACt SLUMS
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April 6. 2015
Vial calm (210) 44743035
Just] Barbour
Schrnoyer Reinhard !LP
17808 FH 10 ma, SUNG 400
San Antorde.7X 782S7
Re: Cause 20140-16674, Coat& Faint t Pmft Sat Management &rap, Lla
TWA Food Management Parfner4 Lk A 11 Jones Ur, Allen &nos,
fntrIvItlisaffy. f Peter DonbrwandAfuaRy, Jr The 150e reelciti
DishicA Bexer County, Texas
Re: Reschedule of Deocrieent enlarges
near fir Sargon
Retro be edvlsed. that lee.% wil hams copy of the treemeptikomJudge
Seket heedm or F 6 ey24.2015 Meng elFsbeenhe he cleared your Motion for
Pretedive Order Pkese Lee the duke.
The Datendante helve yet be produce corollate Responeee to =Discovery
Requeste, Therefore, 1 Mr! be certteing your dilicefor meter eatefarthe
emollient of DelenitotAllen Datendart Peter ricelhavand and11.20Y Anna&
Director O'ER
The toornplete Remeneee are contrary to Judge Sakai t Mng. Therofcre.
plate molds mowth alternative delee %eh eteStient erne the2 would lakve rne time to
filo aNFamie Compellf neeentiely
Yen with le decade lhie meauferthar please ;Ma meeoatorw e e.an amuse
further April 7 ais.
AA_
"edruji5r gW
°OM
Enema= (assetee)
co Death fake
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN
111 SOLEOAD, SUITE 1725
SAN ANTONIO, TEXAS 78205
(210) 226-1550
TELECOPIER (210) 226-1884
Arcwie2asbcglobal.net
March 19, 2015
Via facsimile (210) 447-8036
Justin Barbour
Schmoyer Reinhard LLP
17806 10 West, suite 400
San Antonio, TX 78257
Re: Cause 2014-CI-16674, Cearth Faire v Frnp Sa Management Group, Llc
D/B/A Food Management Partners, Lk, All Jones Lie, Allen J Jones,
Individually, And Peter Donbavand, Individually, In The 150th Judicial
District, Bexar County, Texas
Dearer Barbour:
Regarding the deposition of my client, I have the following availability;
May 20, 2015
May 21, 2015
ay 28, 2015
Please let me know what day works for you Thank you and I look forward to
discussing other discovery issues
Of course, I am available by telephone if you wish to discuss and or confer on
these.
" ei
speclr
i
4, tri 1)/(9-vilk P91(
ti; c4B"OWN
OB/mf
Enclosures (as stated)
cc Cearth Faire
File
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
P
* 5.4 Memory TX Result Report ( Mar 19 2015 3:39PM ) * * *
1) Law Office of Olga Brown
2) 210-226- 1$84
Date/lime: Mar 19 2015 3:38PM
File Page
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1007 Memory TX 4478036 P. 1 OK
Reason for error
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LAW OFFICE OF OLGA BROWN
.111 MEDALS SUM /725
aieemnoNio.sexAS 73205
cao)228nisso
TACCOPICap10)2264664
teasitasteir2ZelaS
March 1B„ 2015
Wa facolmllo (210) 447-8528
JuStin Barbee/ •
SottleOyer Releruled LLP
17B081f110Wost, autta 400
San Aritonto, TX 78257
Re: Cause 201441, 28S74, Comfit F&ro v. Fmp Su Munogoaxurt Group, Lk
OSA Food Managefnant Purtuers, Uc, AkJonou Lk7, Allen J Jones
burvkhaly, And Pater Of:cabal/anal, flullvklou7K fn The15CP•JudiClal
OLshict, Boxer County Texas
Dear Mr Barbour.
Regarding tho depOS.Von of my dent I Imo the foaming svallabrpr.
May211 2015
May21, 2015
May28. 2015
Please let me knosvwhet day works lOr you Thank you and Mak fenvard to
a:mussing other discovery issues.
Of courses ] am available by telephone IT you wiah to down and &confer on
them:,
OBIrre
Enclosures (es OW)
co Gas* Faso
File
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN
111 SOLEDAD SUITE 1725
SAN ANTONIO, TEXAS 78205
(210) 226-1550
TELECOPIER (210) 228.1884
Anwle2esbcglobal.net
Mai•ch 12, 2015
Via facsimile (210) 447-8036
Justin Barbour
Schrnoyer Reinhard LLP
178061H 10 West, suite 400
San Antonio, TX 78257
Re: Cause 2014-CI-16674, Cearth Faire v Fmp Sa Management Group, Lie
1)/B/A Food Management Partners, Lie, All Jones Lie, Allen J Jones,
Individually, And Peter Donbavand, Individually, In The 150th Judicial
District, Bexar County, Texas
Dear Mr, Barbour:
Thank you for your letter of March 9, 2015, wherein in part, you provided
potential dates for depositions of Tracy Amass, Peter Donbavand, and Allen
Jones..
As to your timeframes for. Allen Jones, and with respect to the Agreed
Docket Control Order, I'm sure you'll see the need for a much earlier date than
you propose for Allen Jones.
Plaintiffs deadline regarding Experts is June 4, 2015 I'm sure with your
experience, and given the discovery arguments already made to Judge Sakai on
February 24, 2015, you'll see the need for an earlier date I'm sure you'll be able
to impress the same upon your clients.
Accordingly, you'll find Amended deposition notices for Amass,
Donbavand and Jones, in April 2015
Of course, I am available by telephone if you wish to discuss and or confer
on these
OB/nTf
Enclosures (as stated)
cc Cearth Faire
File
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
* Memory TX Result Report ( Mar 12 2015 4:34PM ) * * *
1) Law Office of Olga Brown
2) 210-226-1884 '
Date/Time: Mar 12 2015 1:27PM
File Page
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6963 Memory TX 4478036 P. 7 OK
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Reason for error
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LAW OFFICE OF OLGA BROWN
s'iscammksmmins
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March122615
210)
Via faosiretto t 4474035
Justin Barbour
Soh mayor Reinhard UP
178081H 10 West, 6410400
San Antonio, TX 78257
Re: Cause20/4-CI-15574„ Caiuth Palm% Fmp Ss. Managamoni Cirozip, Lk
1J/111A Food Mandgantant Partnam Lk, Mimes 1.4 Aran J Jones;
Incrivklaaay, And Fktlf Donbavanct IndrIddually, In The 1509' Judicial
Mid Boxer County, Texas
Dear Mr. Butner:
Thank you for your totter of March 9, 2015, whereto In part you provided
potential dates for depositions of Tracy Amass Peter Donbavand. and Allen
Jones.
. As to younilmeframes for Alien Jonas, and with respect to theAgread
leshet Control Order I'm 'sure welt see tbo need for a much earttesdate than
you propose forAl len Jones
Plaintiff's deadline regardreg Experts is Juno 4, 2015. Pm suns with your
enoedenco, wad Oven the siltreovery ammonia lioady model° Judge Sakai on
February 24„ 2015, you'll see the mood for an earner data Pm sure you'll be obits
to Impress the earner upon your diorite
Accordingtr,9oull1hxfAmendeddoposiriannotioesforAmass.
Donbavand and Joan In April 2015.
Of course, I am available by telephone if you wish to discuss and or =for
on those
aml
co CearRiNfro
FOe
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
Mar 9 2015 1:21PM No 7996 P2
• • . .
etitor.;c_is of Law
178051.11 10 West Suite 400 • San Antonio, Texas 78257 Office: 210.447 8033 • Fax: 210.447.8036 • www sr4.3p com
JUSTIN BaitBoUR
210 447 8033 (ter.)
210,447.8036 (fax)
jbarbour@g4lp com
March 9, 2015
VIA FAX - 210.226.1884
Olga Br own
Law Office of Olga Brown
111 Soleclad, Suite 1725
San Antonio, IX 78205
Re: Cause No 2014-CI-16674; Cearth Faire v FLIP SA Management Group, LLC dla
Food Management Partners, LLC, et al; In the 150th Judicial District Court for
Bexar County, Texas
Dear Ms Brown:
This letter is sent to confer on several issues regarding the above-styled lawsuit First, I
am in receipt of your draft proposed orders regarding the parties' February 24, 2015 hearing on
Plaintiff's Motion to Compel and Defendants' Motion for Protective Order and to Stay
Discovery My proposed revisions to those orders are attached for your review. As to the order
OP Defendants' Motion fox Protective Order, X have simply specified that the order pertained to
Plaintiff's Second, Third and Fourth Sets of Interrogatories and Requests for Production, which
were the only discovery items pending at the time of our hearer Further, as you know,
DaridtM"rEfe--- key :2—F&FREy err timery—Obrecti'ons responses to these requests, in
accordance with the Court's bench ruling.
As to the order on Plaintiff's Motion to Compel, it is, in my opinion, improper for this
order to address each of Plaintiff's dozens of interrogatories and requests fox production
individnally, and then to compel certain, specific responses to each You will recall that Plaintiff
announced for a one-hour hearing in Presiding Court on February 24 Judge Sakai expressly
indicated it would take a "day or more to individually go line-by-line through Plaintiff's written
discovery requests. Because that far exceeded the time available to the parties, fudge Sakai
heard (1) arguments regarding Defendants' request that discovery be stayed pending resolution of
the Rule 91a Motion and (ii) very generalized arguments regarding the nature and scope of
Plaintiff's written discovery requests Judge Sakai ultimately determined that a discovery stay
was inappropriate in this case, and that Defendants should produce responsive documents
notwithstanding the forthcoming Rule 91a hearing However Judge Sakai's bench ruling and
Received Time Mar. 9 1:17PM
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
Mar 9 2015 1:21PM No 7996 P. 3
Olga Brown
Law Office of Olga Brown
March 9, 2015
Page 2
judge's notes do not address Plaintiff's written discovery requests individually, nor do they
identify specific documents to be produced in response to those requests. As such, Defendant&
attached proposed order on Plaintiff's Motion to Compel tracks both the language of
Judge Sakai's judge's notes, as well as his ruling from the bench
Of course, I welcome any further dialogue regarding the scope and language of these
orders If you have concerns regarding the foregoing or wish to discuss this matter anther, I am
available at your convenience.
Second, you previously wrote regarding deposition dates in this lawsuit. At present, the
requ "messes axe available during the following time frames:
Tracy Amass: April 7.10 or 13-14;
Peter Donbavand: April 7.10 ox 13.14; and
• Allen iones:May 11-15 or 18-20,
As to your request for Ms. Jason Temp's deposition, you know that Mx, Kemp is the
Chief Financial Officer of Defendant FMP We are unaware of allegations ox evidence
demonstrating that Mt Kemp has the requisite unique knowledge to justify his apex deposition
in this matter As such, given the facts presently available, we would oppose Mr, Kocap's
deposition on this basis However, as with any matters regarding pertaining to this lawsuit, I am
happy to confer and discuss this issue further
Finally, please provide dates during the above-referenced thnefiames when you and
Ms. Faire would be available to set hex deposition.
Sincerely,
tin. Barbour
Enclosure(s)
178061H 10 West, Suite 400 • San Antonio Texas 782.57. Office: 210 447 6033 • Far 210,447 8036 • wm,y,sr-Ite.com
Received Time Mar 9' 1:11PM
EXHIBIT A - Reply to Response - Mtn to Compel NoDepo
Feb 25 2015 3:28PM 7939
Jones
P 2
17806 11-1 10 West, Suite 400 San Antonio, +ems 78267 .'Office: 210 4470033. Fag 210.447 8036 WA* sr ttp corn
JUSTIN BARBOUR
210.447 8033 (tel..)
210.447.8036 (fax)
jbEirboux@szap cord
February 25, 2015
VIA Roc - 210_2261884
Olga Brown
Law Office of Olga Brown
111 Soledad, Suite 1725
San Antonio, IX 78205
Re: Cause No 2014-CI-16674; Cearth Faire v PM? SA Management Group, LLC dba
Food Management Partners, LLC, et al; In the 150th Judicial District Court for
Bexax County, Texas
Dear Ms. Brown:
I am in receipt of your letters dated today and yesterday regarding depositions in the
above-styled matter. My clients and Lug conferr.ing-w-gardinj their availabilitygd potential
deposition dates. Both of your letters have threatened a "Motion for Sanctions fox Resisting
Discovery"; however, I would kindly ask that you refrain from filing such a motion until
Defendants have been afforded a reasonable time period to identify available dates, in light of the
Court's ruling yesterday
Along those same lines, I understood you would draft and forward fox my review an
order formalizing Judge Sakai's rulings on Plaintiff's Motion to Compel and Defendant's Motion
fox Protective Order, I have not yet received any such draft If I missed the proposed order,
please let me know Alternatively, if the order has not yet been drafted, please let me know
when I may expect to receive it.
Sincerely,
Justin Barbour
Received lime Feb 25 3:25PM
EXHIBIT A - Reply to Response - Mtn to CompelNoDepo
Feb 25 2015 3:28PM 7939
Jones
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17808 Hi 10 West Suite 400 • Serf Ante*, Texas 78257 Office: 210447 8033 • Fax: 210.4418038 • www s r-Ilp corn
Data February 25, 2015
To: Company: Fax: Phone:
Olga Brown Law Office of Olga Brown 210.226.1884 210226.1550
From: Company: Fax: Phone:
Justin Barbour Schmayer Reinhard LIP 210.447.8036 210447.8033
Pages: 2
Re: Ceadh Faire v FIVP, et 81 108,.023
CI Urgent lid For Review El Please Comment Please Reply 0 Please Recycle
Please see the following attachment ORIGINAL(S) WILL NOT FO1 LOW
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Received Time Feb 25. 3:25PM
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN
111 SOLEDAD, SUITE 1725
SAN ANTONIO, TEXAS 78205
(210) 226-1550 .
TELECOPIER (210) 226-1884
Arcivle2(asbccilobal.ne. t
February 24, 2015
Via facsimile (210) 447-8036
Justin Barbour,
Schmoyer Reinhard LLP
17806 IH 10 West, suite 400
San Antonio, TX 78257
Re: Cause 2014-C1-16674, Cearth Faire v. Fmp Sa Management Group, LIc D/B/A
Food Management Partners, Lic, All Jones tic, Allen J Jones, Individually, And Peter
Donbavand, Individually, In The 150th Judicial District, Bexar County, Texas
ATTEMPT TO CONFER OVER DEPOSITIONS OF JONES, DONBAVAND AND AMASS
Dear Mr Barbour.:
Would you kindly advise as to the availability of Mr. Jones, Mr. Donbavand and Ms.
Amass, for their oral and videotaped depositions in your office.
As you might recall, the Plaintiff properly and reasonably noticed:
Allen J Jones, on December 17, 2014
Peter Donbavand on December 17, 2014
Tracy Amass on January 28, 2015.
You will also recall, that your clients moved to Quash the three depositions
referenced above.
As noted in Plaintiffs Motion to Compel the depositions of Jones and Donbavand,
your client's motion to quash was defective in that TRCP 192 6(a) requires that "The motion
must identify a reasonable time and place for the deposition with which the party or witness
will comply
Kindly consider providing dates and availability for the three noticed deponents.
Fair warning that this letter may be Exhibit #2 in a future motion for sanctions for
resisting discovery, pursuant to. Rule 2153, which I hope does not become necessary, and
that you will also tender Mr Kemp for his deposition promptly .
Thank you and 1 look forward to hearing from you.
OB/rnf
cc Cearth Faire
File
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
P 1
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February 24, 2015
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Dear Ur. Barbour.
Xrder 10110we my terttlest to you that Mr. Allen ',Jones he mutt attic
thawing for the Motion for Sant loes 1 have filed avant KM. The fact that he is
tho CEO able companies deer not shield him for wrongdoings in canneetbn
with the claim filed esethst tam.
The beating oil;Mouthy. February 24, 2015IS not men* 'a discovery
heeling'. My motion complains about Ids misconduct Mr Joon Is the acior to
all the crakes, Mcluding rotagetkin
It Is reescresble to copilot that X my tiZegatIons are wXhout merit he week!
be in the tourfroom to testify PlOgtos rimeralder your refteet to haw Mr. Jones
attend the SandionShearkig Thtudc you mut I look fotward to hoarthg from you
le
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EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
Feb 18 2015 8:23AM No )899
ITARDtill;
111 i:!1 V_. P: Iv . 'FrVA
178061H 10 West; Suite 400 San Antonio, Tens 78257 • Office: 210.447 8033 • Fax; 210447 8056 • www corn
JUSTIN BARBOUR
210.447 8033 NO
210 .447.8036 (fez)
jbarbow@sr-lip eon
February 18, 2015
VIA FAX - 210.226.1884
Olga Brown .
Law Office of Olga Brown
111 Soledad, Suite 1725
San Antonio, TX 78205
Re: Cause No 2014-CI-16674; Cearth Faire v FMP SA Management Group, LLC dba
Food Management Partners, MC , et al; In the 150th Yudicial District Court for
Bexar County, Texas
Dear Ms Brown:
This letter is sent in response to your February 17, 2015 discovery conferral letter sent in
the above-styled matter. Please accept this correspondence as Defendants' response to that
letter
---------
Defendant contends that any farther discovery in this matter is inappropriate until the
Court has disposed of Defendants' Amended Rule 91a Partial Motion to Disixdss, which is set fox
hearing +7n. March 18, 2015 The resolution of that Motion could largely narrow Plaintiff's
claims and the scope of this litigation. Thus, any interim discovery requests, responses, or
supplementation risks wasting the parties' time and resources on matters that would ultimately
be irrelevant to the issues in this lawsuit, To that end, yesterday we filed Defendants' Mott; or
Protective Order and to Stay Discovery, which is set for hearing on Friday, February 20, 2015
[ Please feel free to contact me at your convenience if you wish to discuss this matter
further
Sincerely,
Received Time Feb 18. 8:20AM
EXHIBIT A - Reply to Response - Mtn to CompelNoDepo
7899
Jones
Feb 18 2015 8:23AM P 1
.•
Sc
0 • • ••
- • +.•••
Attantajf t21 .1c1p
HAIUDILP
17808 IH 10 West Sub 400 • San Antonio, Texas 78257 • Office: 210A47 8038 • Fax 210.447.8036 • www.5r-IIp..com
Data February 18, 2015
To: Company: Fax: Phone:
Olga Brown . . Law Office of Olga Brown 210226.1884 210.226.1884
From: Company; Fax; Phone:
Justin Barbour Schmoyer Reinhard LLP 210.447.8036 210.447.8033
Pages; 2 .
Re; . Cearlh Fake v AMP, et al 108 023
0 Urgent I21 For Review LI Please Comment 0 Please Reply LI Please Recycle
Please see the following attachment ORIGINAL(S) WILL NOT FOLLOW .
The ieformetion *mined fuie tudiiguie• =Fang° is axoreey-ollese privileged sadcomSderdal, EA41.{9 iatendod only for tho WO of ate indhittnal or ;peaty eatioa ebove% Mho tesjor of tbis
maw is am Mc fronded tacipient or tho employee or Meet assponsalge to deliver it to the intended recipiont, you ere hereby notified &at soy dissoreinutioa. distriburioo or ooPY41% of this
omeamaiestion soletly Xf you luve received this commnnieation laaver,p)caaeaoderes immkti6way by telephone,. end realm the origizal raeesage 1).$ bytogi mo aidatis
shove
Received Time Feb 1$ 8:20AM
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
Feb 17 2015 5:08PM h 1898 P2
E2
.411 SCHUMER,
._... -A
REINHARD LIT
Attorneys at /aw
17806141 10 West, Suite 400 • San Antonio Texas 78257 • Office: 210„447,3033 • Fax: 210 447 8036 • www sr-lip am
JUSIIN BARBOUR
210 447..8033 (tel )
210447.8035 (fax)
jbarbour@sr JIp.cora
February 17, 2015
VIA FACSIMILE 210.226.1884
Olga Brown
Law Office of Olga Brown
111 Soledad, Suite 1725
San Antonio, Texas 78205
Re: Cause No 20.14-CH6674; Cearth Fafre v PMP SA Management Group, LLC
d/b/a Food Management Partners, LLC et at; Tn the 150th Judicial District Court,
Bexar County, Texas
Dear Ms.. Brown:
Enclosed please find a copy of Defendant's Motion for Protective Order and to Stay
Discovery, which was filed this afternoon. Please note that thrlird-5iiiiSEITrg-set-for heating
on February 20, 2015, at 8:30 a in in the Presiding District Court, Bexar County, Texas. We
will forward an executed copy of the Flat upon receipt from the District Clerk
Please contact Christine or me if you have any questions.
Sincerely,
C
tin Barbour
Enclosure(s)
Reeived TiO Feb 1/ 5:O5.M
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
Feb 11 2015 5:08PM No 7898 P. 1
r4 SCIIMOYER
ma REINHARD LLP
Attorney/ at gum.
178081N 10 West, Suite 400 • S2/1Arltonlo, Texas 78257 • Office: 210 447 8033 • Fax 210 4478038 • mew sr4rp..oam
Fax
Data February 17, 2015
r
To: Company: . Fax: Phone:
Oba Brown '. Law Office of 0 fga Brawn 210.226.1884 210.226.1884
From: Company: Fax: Phone:
Justin Barbour Schrnoyer Reinhard LLP 210A47.8036 210.447.8033
Page= •
Re; Coarth Fairs v FIWP, et al 108 023
El Urgent Si For Review D Please Comment ri Please Reply 0 Please Recycle
Please see the following attachment ORIG1NAL(S) \NIL NOT FOLLOW..
Thank you..
Tho information contained in this floshnito messego is arromoyoliont ptivitoged and confidential, and is innande
d only for the vso of the individost or entiv limed above. If tlte reader of this
=sago is nor tho in onelt4 to* kat. or the omployee or agent responsibto to claw ie ro inthodedreeipient,,yoo are hereby notified That any dissoteastion; distribtaionot copying of ibis
communkszion is stria fly prohib iced. If you have:solved this cototovoioatiOzi in error 1:110ASC notitk ns immediately by telephone, and reran the original 'message to its by mail at the ocutress
above
Received Time Feb, 17: 5:05PM
C.
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
Feb 6 2015 4:12PM No 7847
SCHMOYER
a REINHARD LLP
Attorneys at _Zak)
17806 IH 10 West, Sotto 400 46an Antonio, 'Tens 782574 Office: 210 447 8033 Fax: 210..447..8036 • www,ss,Ifp. cam
„Its Inv DARR=
210.447 8033 (tel..)
210 447.5036 (fax)
jharbour@sr-11p coin
Febnlary 6, 2015
VIA FAX - 210.226.1884
Olga Biown
Law Office of Olga Brown
111 Soledad, Suite 1725
San Antonio, TX 78205
Re: Cause No 2014.. CI-16674; Ceanh Faire v FMP SA Management Group, LW dba
Food Management partners, ac, et al; In the 150th Judicial District Court fox
Bexar County, Texas
Dear Ms. Brown:
This letter is sent with regard to Plaintiff's Motion to Compel, which was apparently filed
today in the above-styled matter,. As I understand your Motion, you have asked the Court to
generally override each and every of Defendants' objections to Plaintiff's First Set of 32
Interrogatories and 33 Requests for Production, both of which were served on every Defendant
to this action As such, your Motion amounts to a blanket request that the Court override all
objections to 260 different written discovery requests.1
As an initial matter, Defendants note that Plaintiff failed to confer regarding the
substance of the Motion prior to its filing. Just yesterday afternoon, we received correspondence
from your office asking fox supplementation of Defendants' discovery responses. This letter
never requested a blanket withdraw of all objections to Plaintiff's 260 written discovery requests.
Nonetheless, in light of your request as to "[w]hen fyou could] expect to receive
supplementation" of Defendants' discovery responses, counsel was evaluating their ability to do
so Yet, not even 24 hours later, we received your Motion to Compel. Accordingly, and in
Notably, the 260 written discovery requests comprise only Plaintiff's Pirst Sot of Interrogatories and
Requests fox Production. Since that time, Plaintiff has served her Second Set .of Interrogatories and Requests fox
Production (14 each) on January 29, 2015, Third Set of Interrogatories and Requests for Production (two each) on
January 30, 2015, and Fourth Set of Interrogatories and R.equests for Production. (11 each) on February 5, 2015. As
each set of written discovery has been served on each Defendant to this lawsuit, Plaintiff has now cumulatively'
served 476 written discovery requests in this three-and-a-half month-old lawsuit,
Received Time Feb 6. 4:09PM
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
Feb 6 2015 4:12PM No 7847
Olga Brown
Law Office of Olga Brown
February 6, 2015
Page 2
response to your correspondence dated yesterday, we would respectfully suggest that your
Motion to Compel is premature and request a reasonable amount of time in which to provide
such supplementation.
Second, we note that your Motion. to Compel is grossly inaccurate in its characterization
of Defendants' discovery responses Plaintiffs' First Set of Interrogatories and Requests fox
Production are, by and large, grossly overbroad in their temporal and subject matter scopes, seek
a host of patently irrelevant information, and are generally served for little more than the
purposes of harassing Defendants Thus, to protect their interests against Plaintiffs' overbroad
and overreaching discovery, Defendants properly asserted objections where appropriate. Despite
having asserted appropriate objections, Defendants nonetheless responded to the overwhelming
majority of Plaintiffs' Interrogatories and Requests fox Production, Specifically, Defendants
responded as follows:
• Defendant Allen Jones responded to 30 of 33 Interrogatories and 19 of 33 Requests
for Production;
• Defendant Peter Donbavand responded to 31 of 33 Interrogatories and 30 of 33
Requests for Production;
• Defendant All Jones, LLC responded to 30 of 33 Interrogatories and 17 of 33
Requests for Production; and
• Defendant FM? SA Management Group, LLC responded to 30 of 33 Interrogatories
and 24 of 33 Requests for Production
hi light of these responses, your sensational claim that "Defendants are trying to usurp
the Court of its power" is simply inflammatory and lacking any basis whatsoever, Defendants
have fully complied with and responded to Plaintiffs non•objectionable discovery requests.. Per
your correspondence sent vesterdat Defendants are evaluating their ability to further
supplement 'written discovery responses and will do so as soon as practicable. In the meantime,
if you contend that any of Defendants' objections to specific Daterrogatories or Requests fox
Production are inappropriate, we welcome an opportunity to confer on this issue. To that end,
please identify the discovery requests for which you so contend and your basis fox contending
that the objections should be withdrawn, and we would be happy to discuss this issue further
Third, your Motion to Compel claims, without any basis, support, ox explanation, that
Defendants "axe withholding material documents and testimony relevant to" Plaintiff's claims.
Please immediately state the documents you contend are in Defendants' possession, and the
discovery requests to Which they are responsive
Finally, in addition to failing to confer on the substance of your Motion to Compel, we
similarly note that you have failed to confer on a hearing date.. We would respectfully urge that
the parties attempt to resolve these discovery matters without the need for Court intervention. ro
,1•11011110•1111111•11111,•••
11806 HA 10 West, Suite 400 • San Antonio, Texas 78257. Office: 210 447 8033 • Fax: 210.447,8036 • ww.v.spiln.com
Reeived Time Feb 6 4:09PM
EXHIBIT A - Reply to Response - Mtn to Compel No
Depo
7847
Jones
Feb 6 2015 4:13PM
Olga Brown
Law Office of Olga Brown
February 6, 2015
Page 3
that end, we request Plaintiff respond to each of Defendants' request; set forth above Howevel,
should you insist on proceeding with an unnecessary and unjustified heating on this Motion to
Compel, bath Ms. I axeunavailable on the cuirent hearing date, February 12, 2015
In that case, we would request you please provide-T otlates on which you are available, such
that we may identify a mutually available date on which to present this unnecessary matte/ to the
Court
Please contact Christine Reinhard or me if you wish to discuss this matter further
Sincerely,
C
•
17806 111 10West, Suite400 • San Antonia Texas 78257. Office: 210 447 8033 • Fat 210447 8026 r-110.corrt
Received Time Feb 6 4:0$PM
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
Feb 6 2015 4:12PM No 7847 P. 1
2ttoivey s' td:a 00: o; A:;
••••.....•=•••••
17808111 10 West Stilto 400 • San Antonio, Texas 78257 Office: 210.447 8033 • Fax 210 447 8036 • wvAvsnllp,com
Fax
Date: February 6, 2015
To: Company: Fax: Phone:
. .
Oita Brown Law Office of Olga Broim 210.2261884 290.226484
r-
From: Ckmmipany: Fax: Phone:
Justin Barbour , Schrnoyer Rdnhard LIP _ 210A47.8035 210.447.8033
Pages: 4
Re: Cearth Faire v EMP, et al 108 023
❑ Urgent 10 For Review 0 Please Comment 0 Please Reply Li Please Recycle
Please see the following attachment ORIGINAL(S) Wit L NOT FOLLOW,
The information contained is Ihtis facsimile rtsivemge is attonasy.olienr privileged and esadootiaL ed is ittrioded only tor tho use orthe individual or entity =maul &ova. Ittho sower of this
message fa not the Ulteuded te oipfeet. or the employee or imont responsible to deliver it to the intended seebleeraoo um hereby notified that fty dissemination, dietrilution or copying of this
corm maceii'oe iSatriodY prohibited riYeu Let* re ceived Ade coconwP;INOn in=for, &me toreros itarnedrately by telephone, Acid return the original message to us by rosa st the address
above.
Received Time Feb 6 4:09PM
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
SO- MOYER
REIN HARD LLB'
Attorn eys at Ica,
10•111•MMI•••••••••••
178061F1 10 West, Suite 400 • San Antonio, Texas 78257 • Office: 210 447 8033 • Fax: 210 447 8036 • www sr-lip corn
JUSTIN BARBOUR
210 447 8033 (tel )
210 447 8036 (fax)
jbarbour@st-Ilp corn
February 4, 2015
VIA U.S. FIRST CLASS MAIL
Olga Brown
Law Office of Olga Brown
111 Soledad, Suite 1725
San Antonio, IX 78205
Re: Cause No. 2014•CI-16674; Cearth Faire v FMP SA Management Group, LW dba
Food Management Partners, LIC , et al; In the 150th Judicial District Court for
Bexar County, I exas
Dear Ms. Brown:
Enclosed is a file stamped copy of Defendants' Response to Plaintiff's Motion to Compel
Defendant Allen J Jones' and Defendant Peter Donbavand's Depositions The Response was
hand-filed this morning, when I appeared for the hearings on the parties' Motion to Compel and
Motion to Quash, which I had understood to have been reset to today. These motions were not
announced in Presiding, however, nor did I see you there. Thus, I was unable to hand-deliver the
ReSponse to you, as I had intended, and have instead amended the Certificate of Service to
reflect service via U S. First Class Mail
Please contact Christine or me if you wish to discuss this matter further
Sincerely,
Enclosure(s)
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN
111 SOLEDAD, SUITE 1725
SAN ANTONIO, TEXAS 78205
(210) 226-1550
TELECOPIER (210) 226-1884
Argyle2(ftbcglobal.net
January 14, 2015
Via facsimile (210) 447-8036
Justin Barbour
Schmoyer Reinhard LLP
178061H 10 West, suite 400
San Antonio, TX 78257
Re: Cause 2014-CI-16674, Cearth Faire v Fmp Sa Management Group, LIc
D/B/A Food Management Partners, Llo, All Jones Llc, Allen J Jones,
Individually, And Peter Donbavand, Individually, In The 150th Judicial
District, Bexar County, Texas
RULE 11 AGREEMENT CONCERNING SETTINGS OF JANUARY 15, 2015
Dear Mr Barbour:
This letter is to confirm and thank you for the Rule 11 Agreement in the above
matter, as requested via telephone this date, pursuant to Rule 11 of the Texas Rules of
Civil Procedure that we have agreed to reset the hearings from January 15, 2015, to
January 22, 2015, at this time on:
1. Plaintiff's Motion to Compel Depositions of Defendants Allen J Jones and
Peter Donbavand
2 Defendants' Motion to Quash Depositions Notices and/or Motion for
Protective Order
The parties have also agreed to a November 2, 2015 trial, and are
anticipating an agreed docket control order will follow shortly
If you are in agreement with the above please sign below and return to our
offices. A conformed copy will be returned to your offices Your prompt attention to
this matter is greatly appreciated. Thank you.
Respectfully,
OLGA BROWN
AGREED:
Justin Barbour
Attorney for Defendants
EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN
111 SOLEDAD SUITE 1725
SAN ANTONIO, TEXAS 78205
(210) 226-1550
TELECOPIER (210) 226-1884
Argyle2Asbccifo ba ',net
December 18, 2014
Via e-serve
Christine E Reinhard/Justin Barbour
Schmoyer Reinhard LLP
17806 IH 10 West, suite 400
San Antonio, TX 78257
Re: Cause 2014-CI-16674, Cearth Faire v. Fmp Sa Management Group, LIc
D/B/A Food Management Partners, Llc, All Jones LIc, Allen J Jones,
Individually, And Peter Donbavand, Individually, In The 150th Judicial
District, Bexar County, Texas
Dear Ms. Reinhard and Mr. Barbour:
Thank you for your one letter of December 17, 2014, responding to our
many letters and requests dating back to December 3, 2014 ..
Please advise as to availability,prjor to Janua 7, 2015, or make sure.
youjgkeza-klate-,teilaiii7lii4your-mOtionsjp,
Please advise as to the location and time where my client can use her key
to access the vehicle and retrieve her and her family's belongings from her
vehicle in the next three days,
Thank you for the educational comment as to what should not be filed with
the Court Please review the Texas Bar Journal, November 2014 issue, Pages
898-901, and specifically, Page 901, #7 regarding e-serving of discovery.. To
date, we have utilized the e-serve option for the majority of that which has been
sent to you thus far.. This method obviously saves postage and paper, and so
far, neither my EFSP, nor my computer has complained of being burdened by my
office..
Thank you,
Respectfully,
/s/ Olga Brown
OLGA BROWN
OBfmf
cc Cearth Faire
Robert Ray, Attorney for ALL JONES, LLC and Allen J Jones, via email
RobertnRavasbcdlobal.net
File
Appendix 2
FILED
10/6/2015 4:23:36 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Consuelo Gomez
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S AMENDED RESPONSE TO DEFENDANT KEMP’S RULE 91a
MOTION TO DISMISS and REQUEST FOR ATTORNEY FEES
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES PLAINTIFF CEARTH FAIRE, who respectfully requests this
court to deny Defendant Jason Kemp’s Motion to Dismiss pursuant to Texas Rule of
Civil Procedure 91a, and in support of such request Plaintiff would show the court
she has properly plead her claims against Defendant Kemp, and would show as
follows:
I. Prior History of a Rule 91a Dismissal
Defendant Kemp is requesting that his Motion to Dismiss pursuant to Rule 91a
also be dismissed because two other defendants in this lawsuit have been
dismissed by a trial court.
1
Plaintiff Faire would show that the two prior dismissals are not relevant to this
Motion in that when the earlier motion is considered by the appeals court it will be
reviewed de novo. It is a legal question as to whether Plaintiff properly plead her
claims.
The trial court’s determination of whether the Plaintiff’s claims against
Defendants have any basis in law and in fact are legal questions. It is clear Rule 91a
is analogous to pleas to the jurisdiction. See Stedman v. De Paz, 2015 Tex. App.
LEXIS 9326 (Tex. App. Corpus Christi Sept. 2, 2015).
In reviewing Kemp’s Motion to Dismiss, this court must only look at the
pleadings on file in regards to the claims against Defendant Kemp and not look to
other trial court’s rulings. In making its determination this court may not consider
evidence in ruling on this motion and must decide this motion based solely on the
Plaintiff’s pleading of the causes of action. Did Plaintiff give “fair notice” to
Defendant Kemp? Absolutely.
This court is required to accept the factual allegations in the claims against
Defendant Kemp as true at this stage of the proceedings. The Appellate Court is
also required to accept the factual allegations in Plaintiff’s Sixth Amended Petition as
true.
2
In the previous hearing on the motion to dismiss, Defendants’ counsel mislead
the trial court by engaging the trial judge in an analysis of the facts, which is
prohibited by Rule 91a. Whether Plaintiff can prevail on the facts alleged, is
irrelevant. The facts are not subject to analysis at this stage of the proceedings,
because the trial court is required to accept Plaintiff’s factual allegations as true. See
Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App—Houston [14th Dist.] 2014, pet
denied.
Therefore, Plaintiff objects to any and all arguments or statements that another
trial court has granted a similar motion to dismiss. Plaintiff can provide the trial court
transcript where the Rule 91a was considered on a motion for summary judgment
standard, meaning an analysis of the facts as plead by Plaintiff.
II. Introduction and Background
Defendant Jason Kemp, is Co-Founder, and Chief Financial Officer, and one of
the Owners of the Defendant Corporations. Kemp holds himself out to the public as
being extremely experienced in finance, accounting and corporate IT accounting.
As such, Defendant Kemp was well aware of Defendant Jones’ business and
personal activities, which included details of Plaintiff’s compensation and
Defendant Jones’ disparaging treatment of females, including, but not limited to a
judicial admission in a Bexar County District Court by Jones of having purchased a
female in the Dominican Republic for his own needs. Defendant Kemp is strictly
liable for Quid Pro Quo Harassment because he is well aware Defendant Jones
used his actual authority to harass Plaintiff.
3
Defendant Kemp, as Chief Financial Officer, is aware of Defendant Jones’
demands of Plaintiff to work for approximately five months to assist him in his
divorce defense, by caring for his infant child on a 24 hour basis, in addition to her
other job duties. The demands are in violation of well established wage and hour
laws. Defendant Kemp, as Chief Financial Officer condones Defendant Jones’
“human trafficking” as judicially admitted.
Defendant Kemp, as Chief Financial Officer, is well aware that wages owed to
Plaintiff under the Fair Labor Standards Act, Wage and Hour Division, exceed the
value of the house that Defendant Jones gifted Plaintiff. Plaintiff contends the wages
owed to her are approximately $153,162.98. Defendant Kemp, as Chief Financial
Officer, is also well aware that improper deductions were willfully made from
Plaintiff’s wages, in violation of the Texas Payday Law. See Exhibit A incorporated
herein in its entirety.
Notwithstanding that, a trial judge has dismissed Plaintiff’s claim of oral gift of
real estate against Defendant Jones and Defendant Peter Donbavand, Defendant
Kemp has liability independent of the other Defendants for fraud. It is well
established that fraud can be the basis of a conspiracy claim. Defendant Kemp
perpetrated fraud against Plaintiff by denying her fair and just compensation and by
the pretext she was getting the Kemp House.
III. Plaintiff Has Amended Petition Upon Which Motion is Based
Plaintiff Faire has timely filed an amended petition addressing all the complaints
contained in the Defendants’ Amended Rule 91a Motion. Plaintiff has again
4
succinctly addressed all elements of each and every cause of action and supports
allegations with facts that “a reasonable person could believe the facts plead” . Tex
R Civ P 91a.1.
Plaintiff would further show that “if the allegations, taken as true, together with
inferences reasonably drawn from them” would entitle her to present her case to a
trier of fact and secure a judgment for the three causes of action filed against
Defendant Kemp, in the capacity he has been sued. Tex R Civ P 91a.1.
By his Rule 91 a Motion, Defendant Kemp challenges Plaintiff’s claim for an
oral gift of real estate, which Plaintiff would show is enforceable by equity, since the
legal and factual requirements of the three elements for enforcement have been
plead.
Defendant also challenged the claim of conspiracy between Defendants Kemp,
Jones and Donbavand. All of these Defendants were acting outside the course
and scope of the corporate business and for their personal purposes, and therefore,
are not entitled to defend based on Intra-Corporate Immunity Doctrine. Rule 91a
expressly prevents a court from considering evidence in making its determination of
a Rule 91a motion. Tex. R. Civ. P. 91a.6. The question in deciding whether a claim
has a basis in law is whether “the allegations state a cause of action.” See Scott v.
Gallagher, 209 S.W.3d 262, 266 (Tex .. App-Houston [1st Dist.] 2006, no pet); see
also Hamilton v Pechacek, 319 S.W.3d 801, 809 (Tex App -Fort Worth 2010, no pet)
(claim has arguable basis in Iaw unless claim presents an "indisputably meritless
legal theory").
5
Plaintiff’s claim for sexual harassment falls within the protection of employees
by statute: Tex. Lab. Code Ann Chapter 21, which is “designed with the objective to
carry out the purposes of Title VII of Civil Rights Act of 1964, including its prohibition
of discrimination on the basis of sex.” The Texas Workforce Commission has
accepted her claim of sexual discrimination against Defendants FMP, ALL JONES,
LLC, Jones and including Kemp.
IV. Arguments & Authorities Supporting Denial of Motion
A. An oral gift of real estate is an equitable exception to the Statute of Frauds:
Plaintiff would show “It is well settled that, notwithstanding the requirements of
the statute of frauds, a parol gift of real estate will be enforced in equity upon
establishment of the fact of (1) a present gift; (2) possession under the gift taken and
held by the donee with consent of the donor; and (3) permanent and valuable
improvements made on the premises by donee in reliance of the gift with the
knowledge and consent of the donor. To establish an oral gift of real property,
Plaintiff merely must show: (1) a present gift to her by Jones; (2) that she took
immediate possession of the described property with Jones’ consent; and (3) she
made permanent and valuable improvements to the described property with Jones’
knowledge and consent.” McCuen v. Huey, 255 S.W.3d 716, 726-727 (Tex. App. -
Waco 2008); Flores v. Flores, 225 S.W.3d 651, 655 (Tex. App.– El Paso 2006, pet.
denied); see also Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191, 192-93
(1951) (citing Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921)).
6
Plaintiff’s claims for oral gift of real estate began with Defendant Kemp being
the original co-actor in the gifting. Kemp’s wife inherited the property the subject of
this lawsuit and used such property to defraud Plaintiff. See Exhibit B.
B. Plaintiff’s Claim of Sexual Harassment is Authorized by TCHRA
For Defendant Kemp to assert that he is merely an “employee” is ludicrous, as
he is co-founder and co-owner of the defendant companies, by whom Plaintiff was
employed, and as such, has strict liability for the harassment. Further, Defendant
Kemp was a manager of Plaintiff, and as such, knew or should have known of the
harassment.
Plaintiff has properly plead her claim of sexual harassment and/or
discrimination pursuant to the TCHRA and her claim has been accepted by the
Texas Workforce Commission Civil Rights Division, and the EEOC.
V. Res Judicata Is Not Applicable to Defendant Kemp
Plaintiff’s claims against Defendant Kemp are not barred by the doctrine of Res
Judicata. Defendant Kemp was not a party to the trial court’s ruling of dismissal of
Plaintiff’s claims for oral gift of real estate. The prior ruling, which will definitely be
appealed, does not dismiss Defendant Kemp. Kemp, as CFO and monitoring all
finances is liable to the Plaintiff.
7
VI. Faire’s Claim of Fraud as it Relates to Oral Gift of Real Estate
Is Valid and Enforceable
Defendant Kemp, as Co-owner, Co-Founder, and Chief Financial Officer
assumed liability for the fraudulent scheme of Defendant Jones, the CEO and co-
owner, by providing the home Plaintiff Faire was to accept as an oral gift of real
estate to reduce or disallow the wages and expenses due her from employment
services in the Dominican Republic which was a 24/7 care of Jones’ infant.
Defendant Kemp, as Chief Financial Officer, knew of other employment law
violations that harmed Plaintiff Faire.
VII. Standard of Review Met
Plaintiff has given Defendant Kemp, “ fair notice” of her claims against him,
fraud, conspiracy and strict liability for the quid pro quo sexual harassment by the
CEO and co-owner/business partner Defendant Jones.
The bar for avoiding dismissal by Texas Rule of Civil Procedure 91a is very
minimum. All of Plaintiff’s claims are valid causes of action in Texas. The facts
available to the Plaintiff support her claims. Defendant Kemp has failed to timely
object to the discovery requests of the Plaintiff, and therefore has waived all
objections.
Plaintiff Faire asserts that once the electronic correspondence traffic between
Defendant Kemp, the CFO and Defendant Jones, the CEO is provided, this court will
find liability, and find support for exemplary damages against Defendant Kemp.
8
CONCLUSION & PRAYER
Plaintiff Faire’s claims against Defendant Kemp are properly plead and
supported by facts or inferences thereof that would support a denial of the
Defendant’s Rule 91a request for dismissal.
Plaintiff Faire’s claims against Defendant Kemp for quid pro quo sexual
harassment are actionable in that he knew Defendant Jones used the actual
authority of the Defendant Corporations to harm the Plaintiff.
Plaintiff Faire asserts that everyone who has been seriously harmed
as Plaintiff has been, deserves her day in court. Plaintiff relied on the fraudulent
representations made by Defendant Kemp, the Chief Financial Officer, and she has
been harmed by all Defendant parties in this lawsuit.
Defendant Kemp’s complaints as alleged in the Rule 91a Motion are not valid,
and in some instances moot. Defendant Kemp cannot complain about the oral gift of
real estate because the pleading requirements have been factually met and properly
plead.
Defendant Kemp has a personal grudge in denying the oral gift of real estate,
namely retaliation, Defendant Kemp has a personal purpose of financial gain. His
concerted actions are definitely outside the course and scope of the corporate
business.
9
Plaintiff has properly pled her claim of sexual harassment/retaliation and the
claim under TCHRA has been accepted. Mediation of this claim has been extended
to the parties. Defendants declined to mediate.
Plaintiff asserts that if Defendant Kemp insists on going forth with his Rule 91a
Motion, this Court will find it is groundless and frivolous. Plaintiff seeks attorney fees
and costs accordingly.
Plaintiff prays this court deny the motion and grant all other and further relief to
which she is entitled.
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argyle2@sbcglobal.net
By: /s/ Olga Brown_________
OLGA BROWN
State Bar No. 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 6TH day of October 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Amended Response to Defendant Kemp’ 91a Motion to Dismiss
and Request for Attorneys Fees was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
10
EXHIBIT
DurEA4-41 BIT Aub ***
IX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000000668
Check Date: 5/23/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 800.00 15,769.20
GROSS PAY $1,576.92 $15,769.20
DENTAL DENTAL INSURANCE $10.28 102.80
HEMP HEALTH EMPLOYEE ONLY $38,50 385,00
LOAN LOAN REPAYMENT $99.97 99.97
TOTAL DEDUCTIONS $148.75 $587.77
Federal Tax $176.00 1,760.00
FICA Social Security Tax $9474 947.45
FICA Medicare Tax $22.16 221.58
TAXES WITHHELD $292.90 $2,929.03
NET PAY $1,135.27 $12,252.40
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $1,135.27 Sick Balance 0.00
DEF-CF-00658
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000000710
Check Date: 6/6/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 880.00 17,346.12
GROSS PAY $1,576.92 $17,346.12
DENTAL DENTAL INSURANCE $10.28 113.08
HEMP HEALTH EMPLOYEE ONLY $38,50 423.50
LOAN LOAN REPAYMENT $99.97 199.94
TOTAL DEDUCTIONS $148.75 $736.52
Federal Tax $176.00 1,936.00
FICA Social Security Tax $94.75 1,042.20
EXHIBIT A
FICA Medicare Tax $22.16 243.74
TAXES WITHHELD $292.91 $3,221.94
NET PAY $1,135.26 $13,387.66
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation. Balance 0.00
111000025 586034451754 $1,135.26 Sick Balance 0.00
DEF-CF-00659
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
FAIRE, CEARTH Employee ID: REDACTED
8647 TIMBER PLACE SSN:
Check Number: DD000000000000000758
Check Date: 6/20/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 960.00 18,923.04
GROSS PAY $1,576.92 $18,923.04
DENTAL DENTAL INSURANCE $10.28 123.36
HEMP HEALTH EMPLOYEE ONLY $38.50 462.00
LOAN LOAN REPAYMENT $99.97 299.91
TOTAL DEDUCTIONS $148.75 $885.27
Fecieral Tax $176.00 2,112.00
FICA Social Security Tax $94.74 1,136.94
EXHIBIT A
FICA Medicare Tax $22.15 265.89
TAXES WITHHELD $292.89 $3,514.83
NET PAY $1,135.28 $14,522.94
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451734 $1,135.28 Sick Balance 0.00
DEF-CF-00660
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN.
Check Number: DD000000000000000829
Check Date: 7/3/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 1,040.00 20,499.96
GROSS PAY $1,576.92 $20,499.96
DENTAL DENTAL INSURANCE $10.28 133.64
HEMP HEALTH EMPLOYEE ONLY $38.50 500.50
LOAN LOAN REPAYMENT $99.97 399.88
TOTAL DEDUCTIONS $148.75 $1,034.02
Federal Tax $176.00 2,288.00
FICA Social Security Tax $94.75 1,231.69
EXHIBIT A
FICA Medicare Tax $22.16 288.05
TAXES WITHHELD $292.91 $3,807-74
NET PAY $1,135.26 $15,658.20
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $1,135.26 Sick Balance 0.00
DEF-CF-00661
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000000841
Check Date: 7/18/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY 841,000.00 80.00 $1,576.92 1,120.00 22,076.88
GROSS PAY $1,576.92 $22,076.88
DENTAL DENTAL INSURANCE $11.31 144.95
HEMP HEALTH EMPLOYEE ONLY $63.26 563.78
LOAN LOAN REPAYMENT $99.97 499.85
TOTAL DEDUCTIONS $174.56 $1,208.58
Federal Tax $172.13 2,460.13
FICA Social Security Tax $93.14 1,324.83
..M_-_ -±taLRX3_
EXHIBIT A
FICA Medicare Tax $21.79 309.84
TAXES WITHHELD $287.06 $4,094. 80
NET PAY $1,115.30 $16,773.50
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $1,115.30 Sick Balance .0.00
DEF-CF-00662
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000000884
Check Date: 8/1/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 1,200.00 23,653.80
GROSS PAY $1,576.92 $23,653.80
DENTAL DENTAL INSURANCE $11.31 156.26
HEMP HEALTH EMPLOYEE ONLY $63.28 627.06
LOAN LOAN REPAYMENT $99.97 599.82
TOTAL DEDUCTIONS $174.56 $1,383.14
Federal Tax $172.13 2,632.26
FICA Social Security Tax $93.14 1,417_97
EXHIBIT A
FICA Medicare Tax $21.78 331.62
TAXES WITHHELD $287.05 $4,381.85
NET PAY $1,115.31 $17,888.81
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $1,115.31 Sick Balance 0.00
DEF-CF-00663
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000000928
Check Date: 8/15/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 1,280.00 25,230.72
GROSS PAY $1,576.92 $25,230.72
DENTAL DENTAL INSURANCE $11.31 167.57
HEMP HEALTH EMPLOYEE ONLY $63.28 690.34
LOAN LOAN REPAYMENT $99.97 699:79
TOTAL DEDUCTIONS $174.56 $1,557.70
Federal Tax $172.13 2,804.39
FICA Social Security Tax $93.15 1,511.12
EXHIBIT A
FICA Medicare Tax $21.78 353.40
TAXES WITHHELD $287.06 $4,668.91
NET PAY $1,115.30 $19,004.11
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $1,115.30 Sick Balance 0.00
DEF-CF-00664
*** Dupllcate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000001010
Check Date: 8/29/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $45,000.00 80.00 $788.42 1,400.00 26,884.51
GROSS PAY $788.42 $26,884.51
DENTAL DENTAL INSURANCE $11.31 178.88
HEMP HEALTH EMPLOYEE ONLY $63.28 753.62
LOAN LOAN REPAYMENT $99.97 799.76
TOTAL DEDUCTIONS $174.56 $1,732.26
Federal Tax $53.85 2,934.82
FICA Social Security Tax $44.26 1,609.03
EXHIBIT A
FICA Medicare Tax $10.35 376.30
TAXES WITHHELD $108.46 $4,920.15
NET PAY $505.40 $20,232.10
Direct Deposit Information Time Off 'Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $505.40 Sick Balance 0.00
DEF-CF-00666
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000001021
Check Date: 9/5/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $45,000.00 40.00 $865.37 1,440.00 27,749.88
GROSS PAY $865.37 $27,749.88
DENTAL DENTAL INSURANCE $0.00 178.88
HEMP HEALTH EMPLOYEE ONLY $0.00 753.62
LOAN LOAN REPAYMENT $199.94 999.70
TOTAL DEDUCTIONS- $199.94 $1,932.20
Federal Tax $76.58 3,011.40
FICA Social Security Tax $53.65 1,662.68
EXHIBIT A
FICA Medicare Tax $12.55 388.85
TAXES WITHHELD $142.78 $5,062.93
NET PAY $522.65 $20,754.75
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $522.65 Sick Balance 0.00
DEF-CF-00667
Mona Flores
Sent: Thursday, October 09, 2014 3:05 PM
To: Allen Jones
Subject: FW: Cearth Deductions
Attachments: Copy of cearth xlsx
FYI —Cearth's next car payment is not until 11/1. Tiffany pulled October's payment out of her last check thinking it was
September's. We will try ACH'ing her next payment out on 11/1 and if we cannot get it, we will default her and repossess the
car
As for the house, Cearth's eviction hearing is scheduled for next week Olga sent another letter basically stating Cearth owned
the house because it was promised which is laughable.
Peter Donbavand
Vice President
Real Estate & Business Development
Food Management Partners
210-403-3725 ext 218
pdonbavand@foodmps.com
Confidentiality: The information contained in this e-mail and any attachments to it is privileged, confidential, and protected
from disclosure. If you are not the intended recipient, you are hereby notified that any dissemination, distribution or duplication
of this communication is strictly prohibited If you have received this communication in error, please notify the sender
immediately, and delete it from your network server and/or hard drive.
From: Peter Donbavand
Sent: Thursday, October 09, 2014 9:52 AM
To: Bob Amaro
Cc: Nathan Calvert
Subject: RE: Cearth Deductions
No, the information provided is sufficient It looks like Tiffany took Cearth's Oct payment on 9/5 (which she really shouldn't
have done but hopefully Cearth's attorney doesn't catch it so she does not owe All Jones, LLC any money until 11/1 The
attached is not perfect but is close enough. Cearth has paid about $1,600 to date which is what she should have paid through
Oct to date. We will have to wait until 11/1 to try ACH'ing the next payment from her account
Peter Donbavand
Vice President
Real Estate & Business Development
Food Management Partners
210-403-3725 ext 218
pdonbavand@foodmps.com
Confidentiality: The information contained in this e-mail and any attachments to it is privileged, confidential, and protected
from disclosure If you are not the intended recipient, you are hereby notified that any dissemination, distribution or duplication
of this communication is strictly prohibited If you have received this communication in error, please notify the sender
immediately, and delete it from your network server and/or hard drive
6/16/2015
EXHIBIT B
PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC) 12-05-11
(NOTICE: For use only when BUYER occupies the property for no more than 90 days PRIOR the closing)
tqU~L
HOUSING
QPPO/IlUNJTY BUYER'S TEMPORARY RESIDENTIAL LEASE
1. PARTIES: The parties to this Lease are_ _:Tc..: a: . ra:: . . :. .K:. : :e: . :m. :.cp::.___ _ _ _ _ _ _ _ _ _ _ _ _ _=----,-,,-
(Landlord) and Ceartb Faire (Tenant).
2. LEASE: Landlord leases to Tenant the Property described in the Contract between Landlord as Seller
and Tenant as Buyer known as 9647 Timber Place San Antonio TX
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (address).
3. TERM: The term of this Lease commences July 30, 2014 and terminates as
specified in Paragraph 18.
4. RENTAL: Rental will be$ 40.00 per day. Upon commencement of this Lease, Tenant shall
pay to Landlord the full amount of rental of$ 1,200 00 for the anticipated term of the Lease
(commencement date to the Closing Date specified in Paragraph 9 of the Contract). If the actual term
of this Lease differs from the anticipated term, any additional rent or reimbursement will be paid at
closing. No portion of the rental will be applied to payment of any items covered by the Contract.
5. DEPOSIT: Tenant has paid to Landlord $ 0.00 as a deposit to secure performance
of this Lease by Tenant. If this Lease is terminated before the Closing Date, Landlord may use the
deposit to satisfy Tenant's obligations under this Lease. Landlord shall refund to Tenant any unused
portion of the deposit together with an itemized list of all deductions from the deposit within 30 days
after Tenant (a) surrenders possession of the Property and (b) provides Landlord written notice of
Tenant's forwarding address. If this Lease is terminated by the closing and funding of the sale of the
Property, the deposit will be refunded to Tenant at closing and funding.
NOTICE: The deposit must be in addition to the earnest money under the Contract.
6. UTILITIES: Tenant shall pay all utility connections, deposits and charges except-;--,----;-;-~:--:;-----
none , which Landlord shall pay.
7. USE OF PROPERTY: Tenant may use the Property only for residential purposes. Tenant may not
assign this Lease or sublet any part of the Property.
8. PETS: Tenant may not keep pets on the Property except -""b'"-'"rd,.___ _ _ _ _ _ _ _ _ _ _ _ __
9. CONDITION OF PROPERTY: Tenant accepts the Property in its present condition and state of repair,
but Landlord shall make all repairs and improvements required by the Contract. If this Lease is
terminated prior to closing, Tenant shall surrender possession of the Property to Landlord in its present
condition, as improved by Landlord, except normal wear and tear and any casualty loss.
10.ALTERATIONS: Tenant may not: (a) make any holes or drive nails into the woodwork, floors, walls or
ceilings (b) alter, paint or decorate the Property or (c) install improvements or fixtures without the prior
written consent of Landlord. Any improvements or fixtures placed on the Property during the Lease
become a part of the Property.
11.SPECIAL PROVISIONS:
12.INSPECTIONS: Landlord may enter at reasonable times to inspect, replace, repair or complete the
Improvements. Tenant shall provide Landlord door keys and access codes to allow access to the
Property during the term of the Lease.
13.LAWS: Tenant shall comply with all applicable laws, restrictions, ordinances, rules and regulations with
respect to the Property.
14.REPAIRS AND MAINTENANCE: Except as otherwise provided in this Lease. Tenant shall bear all
expense of repairing, replacing and maintaining the Property, including but not limited to the yard,
trees. shrubs, and all equipment and appliances, unless otherwise required by the Texas Property
Code. Tenant shall promptly repair at Tenant's expense any damage to the Property caused directly or
indirectly by any act or omission of the Tenant or any person other than the Landlord, Landlord's
agents or invitees.
TREC NO. 16-5
EXHIBIT B
Buyer's Temporary Residential Lease_ _"'9"'-64_,_7L......!T.....,im_,_,_,b"e._r~.._PJ.>Ia,_,c"e~S=acun'-'-A--"n-'-'t"'o'-'n,_,io'-'-'T-'-X_,___ _ _ _ _ _ Page 2 of 2 12-05-11
(Address of Property)
15.INDEMNITY: Tenant indemnifies Landlord from the claims of all third parties for injury or damage to
the person or property of such third party arising from the use or occupancy of the Property by Tenant.
This indemnification includes attorney's fees, costs and expenses incurred by Landlord.
16.INSURANCE: Landlord and Tenant shall each maintain such insurance on the contents and Property as
each party may deem appropriate during the term of this Lease. NOTE: CONSULT YOUR INSURANCE AGENT;
POSSESSION OF THE PROPERTY BY BUYER AS TENANT MAY CHANGE INSURANCE POLICY COVERAGE.
17 .DEFAULT: If Tenant fails to perform or observe any provision of this Lease and fails, within 24 hours after
notice by Landlord, to commence and diligently pursue to remedy such failure, Tenant will be in default.
18.TERMINATION: This Lease terminates. upon (a) closing and funding of the sale under the Contract, (b)
termination of the Contract prior to dosing, (c) Tenant's default under this Lease, or (d) Tenant's default under
the Contract, whichever occurs first. Upon termination other than by closing and funding of the sale, Tenant
shall surrender possession of the property.
19.HOLDING OVER: Any possession by Tenant after termination creates a tenancy at sufferance and will not
operate to renew or extend this Lease. Tenant shall pay $ 100 per day during the period of any
possession after termination as damages, in addition to any other remedies to which Landlord is
entitled.
20.ATTORNEY'S FEES: The prevailing party in any legal proceeding brought under or with respect to this lease is
entitled to recover from the non-prevailing party a!l costs of such proceeding and reasonable attorney's
fees.
21.SMOKE ALARMS: The Texas Property Code requires Landlord to install smoke alarms in certain locations
within the Property at Landlord's expense, Tenant expressly waives Landlord's duty to inspect and repair
smoke alarms.
22.SECURITY DEVICES: The requirements of the Texas Property Code relating to security devices do not
apply to a residential lease for a term of 90 days or less.
23.CONSULT YOUIIR ATTORNEY: Real estate licensees cannot give legal advice. This Lease is intended to be
legally binding. READ IT CAREFULLY. If you do not understand the effect of this Lease, consult your attorney
BEFORE signing.
24.NOTICES: All notices from one party to the other must be in writing and are effective when mailed to,
hand-delivered at, or transmitted by facsimile or electronic transmission as follows:
To Landlord: To Tenant:
--------------------------
Tara Kemp 9647 Timber Place
120 Chula Vista San Antonio, TX
San Antonio, TX 78232=------~----
Telephone: ( ) Telephone: _,(__L._)_ _ _ _ _ _ _ __
Facsimile: __,.i__ __L)_ _ _ _ _ _ _ _ _ __ Facsimile: ( )
~--~----------------------
E-mail: E-mail:
-~·I ---1 ~
````( J:r::?
Landlord Tenant
· The form of this contract has been approved by the Texas Real Estate Commission. TREC forms are intended for use only by trained real estate I
licensees. No representation is made as to the legal validity or adequacy of any provision In any specific transactions. It Is not intended for !
complex transactions. Texas Real Estate Commission, P.O. Box 12188, Austin, TX 78711-2188, 512-936·3000 (http://www.trec.texas.gov) TREC
NO. 16-5. This form replaces TREC NO. 16·4.
·------------·-·········-···········-····--··----·----·····---··--·····--·······-----·······--··--·---·-·-·------·--···-···--···--·-···-·-··-----------'
TREC NO. 16-5
Appendix 3
FILED
10/6/2015 4:10:37 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Laura Rodriguez
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S SIXTH AMENDED ORIGINAL PETITION
Plaintiff, Cearth Faire, files this Sixth Amended Original Petition against
Defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners,
LLC, ALL JONES, LLC, Allen J Jones, Peter Donbavand and Jason Kemp, and
alleges as follows:
DISCOVERY-CONTROL PLAN
1. This matter is set for Jury Trial March 7, 2016.
CLAIM FOR RELIEF
2. Plaintiff seeks monetary relief over $200,000.00 but not more than
$3,000,000.00.
1
PARTIES
3. Plaintiff, Cearth Faire, is an individual, whose address is 8647 Timber Pl, San
Antonio, TX 78250.
4. Defendant Jason Kemp is an individual, co-founder and Chief Financial
Officer (CFO) of Defendant corporations, whose business address is Food
Management Partners, LLC 120 Chula Vista, San Antonio, TX 78232. He has
been served, is represented by counsel, and is properly before this court.
5. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD
MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company
conducting business in the State of Texas, and has been served and is
represented by counsel, and is properly before this court.
6. Defendant ALL JONES, LLC is an active Texas Limited Liability
Company conducting business in the State of Texas, and has been served and
is represented by counsel, and is properly before this court
7. Defendant Allen J Jones, is an individual, co-founder and President/CEO
of Defendant corporations, who has been served and is represented by
counsel, and is properly before this court.
8. Defendant Peter Donbavand, is an individual and executive of Defendant
corporations, has been served and is represented by counsel, and is properly
before this court.
2
JURISDICTION
9. The Court has subject-matter jurisdiction over the lawsuit because the amount
in controversy exceeds this Court’s minimum jurisdictional requirements.
VENUE
10. Venue is proper in Bexar County as all or a substantial part of the events or
omissions giving rise to the claim occurred in Bexar County.
FACTS
11. Plaintiff Faire was an employee of Defendant Kemp, Chief Financial
Officer of Defendant Corporations and of Defendant Jones, CEO of Defendant
Corporations. In addition to the local corporate duties, she was required to
work in the Dominican Republic for approximately five months on a 24/7 basis,
for the Defendant Jones, CEO with the knowledge of Defendant Kemp. Plaintiff
Faire, during the term of her employment was not properly compensated, giving
rise to several violations of Wage and Hour laws that Defendant Kemp, CFO
knew or should have known about.
12. Defendant Kemp, as Chief Financial Officer of the Defendant
Corporations, was made aware of the facts supporting Plaintiff’s claims by
means of intra-corporate email traffic and including instructions to him and all
other Defendants by Jones as to how to properly proceed on Defendant Jones’
gifting to the Plaintiff the real estate, and specifically the “Kemp” house.
3
13. Defendant Jones, CEO in his official capacity as well as in his individual
capacity communicated his intent to make the gift of real estate to Plaintiff by
negotiating a price for the “Kemp” house at 8647 Timber Pl. San Antonio,
Texas, 78250. Defendant Kemp’s, knowledge of the oral gift of real estate to
Plaintiff is supported by the fact that a buyer’s lease agreement was executed.
14. Further, Defendant Donbavand, in his individual capacity and outside the
scope of corporate business issued orders for the inspection of, and
preparation of the necessary documents to carry out gifting of the real estate to
the Plaintiff. Defendant Kemp, individually and in his official capacity of chief
financial officer of the Defendant Corporations knew or should have known the
facts supporting Plaintiff’s claims. Again, email traffic between all Defendants
supports the facts of Plaintiff’s claims of oral gift of real estate, fraud, and quid
pro quo sexual harassment and retaliation.
15. Defendant Jones, as CEO and in his individual capacity, negotiated with
Defendant Jason Kemp, CFO, whose wife owned the residence at 8647
Timber Pl, San Antonio, TX 78250.
16. Defendant Kemp, CFO and co-owner, also a business partner of
Defendant Jones, took orders and assumed duties outside the course and
scope of the corporate entities upon demand from Defendant Jones, the
President & CEO of Defendants FMP and ALL JONES, LLC. Defendant Jones
treats the corporate entities as his “piggy bank” and Defendants Donbavand
and Kemp, as his personal aides.
4
17. Defendant Kemp, CFO and co-owner, routinely succumbs to the
personal demands of Defendant Jones outside the best interests of the
corporate business, as in this case, to sell him the residence at 8647 Timber Pl,
San Antonio, TX 78250, so he could gift the property to the Plaintiff in
consideration for her assisting in his personal legal matters, and in lieu of
proper wage compensation.
18. Defendant Kemp had personal reasons to complete the necessary
documents. Defendant Donbavand, on behalf of Defendant Jones requested of
Defendant Kemp, that Plaintiff move into the house prior to “closing”, orally
gifting her the house, a present gift. Plaintiff, in reliance of Jones’ oral promise
moved into the house with the consent of Defendant Kemp and the consent
and request of Defendant Jones and made valuable and permanent
improvements in reliance of Defendant Jones promise to her.
19. Plaintiff incurred moving expenses as well as expenses in making
permanent improvements to the residence to make it habitable. Defendants’
email traffic support this. The residence is still in need of significant repairs. An
inspection was ordered by the defendants as further proof of Defendant Jones’
purchase with intention to make a gift.
20. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent
promotion based on meritorious work.. Defendant Jones demanded the other
5
defendants Defendant Peter Donbavand and Defendant Jason Kemp evict
Plaintiff from the house he had given her in retaliation for her refusal of sexual
advances. The wrongful eviction proceedings were abated, as the justice of
the peace court lacks jurisdiction to rule on the petition for eviction in that title to
the property is at issue. The wrongful eviction proceedings are outside the
course and scope of corporate business.
21. Defendants, all acting in concert, continued to retaliate against, and
harass the Plaintiff by wrongfully repossessing her car. Plaintiff had clear title
to her 2005 Mini Cooper. Jones promised to repair her car. An ambiguous
payment plan was put in place. However, in retaliation for claiming her rightful
title to her house, Jones has deprived Plaintiff of a necessity, of transportation
to seek employment. During the repossession process, Jones terrorized her by
sending strangers to ring her doorbell, all while he owns a million dollars worth
of automobiles, and spends a great deal of his time in the Dominican Republic.
22. Plaintiff had an exemplary employment record before being hired by
Defendants FMP and ALL JONES, LLC. Immediately before being fired by
Defendants, Faire had been given a raise in pay and been entrusted with
additional duties. Plaintiff was fired solely because Plaintiff refused to continue
to perform employment duties that were not in furtherance of the corporate
business and because of Defendant Jones’ demands for demeaning sexual
acts and explicit threats to fire her if she didn’t submit.
6
23. Plaintiff seeks actual damages as a result of the sexual harassment and
discrimination, which include, but are not limited to back pay from the date of
quid pro quo retaliation until the date of trial. Plaintiff also seeks future pay in
lost earnings and benefits including the repossession of her automobile lost as
a result of her unlawful termination.
24. Plaintiff also seeks damages for past and future mental anguish as a
result of Defendant Jones explicitly forcing her to choose between the sexual
abuse he was demanding of her and her livelihood.
25. Defendant Jones acted with malice toward Plaintiff in that Jones
exhibited conscious indifference to consequences Plaintiff might suffer separate
and apart from the damages suffered as a result of the retaliation. Defendant
Jones, as President and CEO, has inflicted additional injuries by circulating
malicious rumors about the Plaintiff at corporate headquarters. Plaintiff
therefore seeks exemplary damages.
Count 1: Common Fraud by Defendant Kemp
26. Defendant Kemp, the CFO of Plaintiff’s former employers represented to
Plaintiff that she would be legally and properly compensated for her services as
personal assistant to the corporate officers, and to the CEO Defendant Allen J.
Jones.
7
27. Defendant Kemp in his role as the CFO of all financial data and
information for all the businesses, including Defendant Jones’ personal
businesses, had reason to know that in executing her duties Plaintiff was
required to work extremely long hours and carry out very difficult tasks.
28. Defendant Kemp represented to Plaintiff that he would sell his wife’s
house at 8647 Timber Pl to Plaintiff’s employers so that house would eventually
become the property of Plaintiff. In making the representation to the Plaintiff,
Defendant Kemp knew it was material because Plaintiff would be waiving her
rights to seeking proper and legal compensation of an amount of no less than
$150,000.00.
29. Defendant Kemp made the false representation knowing it was false but
intended for the Plaintiff to rely on the representations. Therefore, Plaintiff
justifiably relied on defendant’s false representation of proper and legal
compensation for her overtime work. Defendant Kemp’s false representations
have directly and proximately caused injury to the Plaintiff which have resulted
in lack of compensation from the corporation and Defendant Jones in an
amount of no less than $200,000.00.
30. Plaintiff seeks damages within the jurisdictional limits of this Court.
Count II: Fraud by Third-Party Misrepresentations
31. Plaintiff and Defendant Kemp were parties to a transaction involving real
estate. Kemp provided the vehicle, the residence at 8647 Timber Pl, by which
Plaintiff was defrauded.
8
32. During the transactions between Plaintiff and Defendant Kemp, Kemp
knew that Defendant Jones made a false representation to Plaintiff regarding
the real estate at 8647 Timber Pl, San Antonio, Texas.
33. Defendant Kemp did not disclose to the Plaintiff that Defendant Jones’
representations to her were false. Defendant Kemp knew the representations
made to Plaintiff by Defendant Jones were false. Defendant Kemp, as the
CFO, had a duty to disclose the misrepresentation to Plaintiff as he knew
Plaintiff had no opportunity to discover otherwise and would rely on Jones’ false
representations.
34. Defendant Kemp by failing to disclose the false representations made by
Defendant Jones benefited from the transaction both personally as well as a
part owner in the corporations of which he is the chief financial officer.
35. Defendant Kemp ‘s purpose in not disclosing the falsity of the
misrepresentation that Jones was going to provide the house as compensation
for Plaintiff’s overtime wages was to induce the Plaintiff to enter into a contract
with Defendant Kemp. Plaintiff justifiably relied on the false representations to
her financial detriment.
36. Defendant Kemp’s nondisclosure of the false representations made to
Plaintiff by Defendant Jones directly and proximately caused economic and
other injuries to the Plaintiff all within the jurisdiction of this court.
9
Count III- ORAL GIFT OF REAL ESTATE
37. On or about March 27, 2013, when Plaintiff Faire, as an employee of
Defendant Corporations, was temporarily living in the Dominican Republic at
the behest of Defendant Jones, CEO, working on a 24/7 hour basis, Defendant
Jones promised to buy a home and gift it to Plaintiff upon their return to San
Antonio, Bexar County, Texas.
38. On or about July 30 2014, Plaintiff moved into the house at 8647 Timber
Pl, San Antonio, Texas 78250, that Defendant Jones gifted her in his individual
capacity but with the knowledge and consent of all Defendants, including
Defendant Kemp. Plaintiff is still living at her home, taking possession under
the present gift.
39. Plaintiff has made permanent and valuable improvement to the home
based on the reliance of the gift made to her by Defendant Jones as an
individual.
40. It was reasonable for Plaintiff to rely on Defendant Jones’ promise of an
oral gift of real estate based on her personal knowledge of Defendant Jones’
history of helping employees with homes, and based on Defendant Jones’
financial resources, including but not limited to ownership in franchises of Zio’s
Italian Kitchen, Buffalo Wild Wings, Don Pablo’s Big Tex Bold Mex, Furr’s, Little
Ceasar’s and Smashburger.
10
41. Further, in other judicial proceedings, Defendant Jones made judicial
admissions of owning 150 businesses and having financial resources to “buy” a
young lady from a brothel for $10,000.00 in the Dominican Republic where he
also has extensive real estate holdings. In other words, judicial admissions of
human trafficking on the part of the CEO of Defendant corporations, with the
knowledge of other corporate officers, including Defendant Kemp, CFO. This is
relevant to both the financial capacity to gift a house to an employee, and to
Defendants’ attitude toward females.
42. Defendant Jones informed the Plaintiff that he was buying the house
from Defendant Kemp, and that at closing, he would give her full title and
interest to the home. Defendants Jones further promised the closing would
take place immediately upon the reaching of an agreement on the final price
and other terms. A final purchase price was reached between Defendant
Jones and Defendant Jason Kemp. All terms for the sale of the house were
reached by buyer and seller, and having absolutely nothing to do with the
business of the corporate entities, parties herein
43. Defendant Kemp, and Defendant Donbavand knew the house located at
8647 Timber Pl, San Antonio, TX 78250 purchased from Kemp, was a gift of
real estate to the Plaintiff. Defendant Donbavand ordered an inspection of the
home in furtherance of a prompt closing, all outside of the course and scope of
corporate business. Defendant Kemp’s knowledge of the gift is evidenced by
11
electronic correspondence traffic exchanged between Defendant Kemp and
Defendant Donbavand.
44. Defendant Jones made this gift to Plaintiff as an individual and not as
President & CEO of the other corporate defendants. Defendant Jones
purchased the home from Defendant Kemp as an individual and not as a
transaction within the course and scope of corporate business.
45. Defendant Jones ordered Defendant Donbavand to complete the
necessary documentation and transactions outside the course and scope of
corporate business. Defendant Donbavand routinely acts as Defendant Jones’
personal aide to carry out his orders regarding personal matters. Defendant
Donbavand is experienced in real estate transactions and worked to completing
the necessary documents. In the meantime, in a fit of retaliation, Defendant
Jones changed his mind about the gift. Plaintiff has been living in the house
since on or before July 30, 2014.
46. Plaintiff asserts this oral gift of real estate must be enforced in equity as
the facts herein establish a gift of real estate, notwithstanding the requirements
of the statute of frauds.
12
Count IV – Conspiracy Claim
47. Defendant Jones, CEO of Defendant Corporations, took overt steps of
retaliation toward employee, Faire, giving rise to an agreement between
Defendant Donbavand and Defendant Kemp and himself, to enter into a
scheme against Plaintiff, to deny that he had made an oral gift of real estate to
Plaintiff, even though Defendant Kemp had given her a key to the home, and a
short term buyer’s lease evidencing his consent to her proper move into the
residence.
48. Plaintiff asserts that electronic correspondence between conspirators
that has been properly requested by her, but denied her, will support all
Defendants were involved in Defendant Jones’ retaliation against Plaintiff. All
Defendants have participated in the common goal of depriving Plaintiff of her
home, after she had taken possession of the home and made valuable
improvement, by numerous petitions for eviction proceedings.
49. Defendants are in possession of electronic communications between
conspirators that will support a meeting of the minds on the subject of
retaliation, and the tort of fraud to deprive Plaintiff Faire of the real estate gifted
to her. Plaintiff Faire has sustained economic damages as a result of the
conspiracy by Defendants Jones, Kemp and Donbavand to defraud her of her
rightful title to the real estate.
50. It is well established that fraud can be the basis of a conspiracy. The
Defendants Jones, Kemp and Donbavand made material misrepresentations to
13
the Plaintiff in connection with the gifting of the real estate to her. Each
Defendant took overt steps and actions to deceive her by going through the
process of purchase and delivery of the real estate.
51. Plaintiff Faire relied on each step taken by each of the Defendants in
furtherance of delivery and possession of the house to her. Defendants
intended for the Plaintiff to rely on their representations that they were working
on carrying out the oral gift of real estate.
52. Defendants’ false representations, including those of Defendant Kemp
have directly and proximately caused economic and other injuries to the
Plaintiff. Plaintiff seeks damages within the jurisdictional limits of this court.
53. Plaintiff seeks exemplary damages from each Defendant including
Defendant Kemp, because Plaintiff will show each acted with malice toward the
Plaintiff which entitles Plaintiff to exemplary damages under Texas Civil
Practice and Remedies code section 41.003(a).
Count V QUID PRO QUO SEXUAL HARASSMENT
54. Plaintiff was an employee of Defendants FMP, ALL JONES and their
subsidiaries, and her duties were to serve as a personal assistant to the
Defendant Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff
was a self-supporting divorced woman with no financial resources other than
her wages. Plaintiff also had an exemplary work history prior to working for
Defendants.
14
55. Plaintiff raises this claim under Tex. Lab. Code Ann. §§ 21.001, .051
(West 1996), which prohibits discrimination on the basis of sex.
56. On or about January 21, 2013 Defendant Jones made sexual advances
toward Plaintiff, a very attractive woman. Defendant Jones then demanded
physical conduct of a sexual nature. Defendant Jones’s demands escalated
and the mental conditioning and abuse was so extreme that it prevented
Plaintiff from defending herself.
57. Defendant Jones made it clear to the Plaintiff that continued employment
as well as other job benefits were conditioned on her acceptance of the
continued sexual demands of Defendant Jones.
58. At the time of the harassment, Defendant Jones was the President and
CEO of the Food Management Partners, a Texas LLC. At all times, Defendant
Jones held himself out to Plaintiff and to the public, as a very powerful business
man, and owner of 150 businesses. Defendant Jones instilled fear of his
financial power on Plaintiff. There was no recourse available to the Plaintiff to
complain.
59. Plaintiff was harmed by the physical sexual conduct perpetrated against
her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by
Defendant Jones sexual harassment. When Plaintiff was mentally well enough
to, she refused to further submit to Defendant Jones’ inappropriate requests,
and she was fired on or about August 31, 2014.
15
60. Plaintiff seeks compensatory damages for lost wages, lost benefits and
future employment opportunities based on her traumatic experience at the hand
of Defendant Jones.
61. Plaintiff seeks exemplary damages based on Defendant Jones’s history
of sexual harassment of others and including judicial admissions that he
purchased a female as if she was merely chattel.
62. Further, Plaintiff seeks exemplary damages against Defendant Kemp
and Defendant Donbavand, as her injury resulted from Defendants’ malice,
which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies
Code section 41.003(a).
JURY DEMAND
63. Plaintiff has demanded a jury trial and tendered the appropriate fee with her
original petition. The jury trail has been set for March 7, 2016.
CONDITIONS PRECEDENT
64. All conditions precedent to plaintiff’s claim for relief have been performed or
have occurred.
OBJECTION TO ASSOCIATE JUDGE
65. Plaintiff objects to the referral of this case to an associate judge for hearing a
trial on the merits or presiding at a jury trial.
16
PRAYER
For these reasons, Plaintiff asks that Defendants be cited to appear and
answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for
the following:
a. Exemplary damages
b. Economic and non-economic damages including, but not limited to back
pay, front pay, severance pay, specific performance regarding the gift
purchase of a home (or its monetary equivalent).
c. All the remedies afforded by Tex. Lab. Code Ann. 21.001
d. Prejudgment and postjudgment interest.
e. Court costs.
f. Reasonable and necessary Attorney’s fees
g. All other relief to which Plaintiff is entitled.
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argyle2@sbcglobal.net
By: /s/ Olga Brown_________
OLGA BROWN
State Bar No. 03155500
Attorney for Plaintiff
17
CERTIFICATE OF SERVICE
I do hereby certify that on the 6th day of October 2015, in accordance with the
TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Sixth Amended Original Petition was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
18
Appendix 4
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES, §
INDIVIDUALLY, AND §
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S SECOND MOTION TO COMPEL THE ORAL AND VIDEOTAPED
DEPOSITION OF DEFENDANT ALLEN J JONES
PLAINTIFF, Cearth Faire, asks the Court to issue an order to compel the
deposition of Defendant Allen J Jones, properly noticed and now scheduled for
October 27, 2015 In support of such request Plaintiff would show the Court as follows:
I. INTRODUCTION
1. PLAINTIFF, CEARTH FAIRE, sued Defendants FMP et al, including Defendant
Jones eleven (11) months ago for numerous tort claims.
2. Plaintiff was employed by Defendant Jones individually and by Defendant ALL
JONES, LLC of which Defendant Jones is a principal, and Defendant FMP, of which
Defendant Jones is the CEO and a principal.
3. Plaintiff served Defendant Jones, through counsel, a Retention Notice
(Spoliation Letter) on December 5, 2014. Plaintiff’s counsel has diligently attempted
to take the sworn testimony of Defendant Jones to no avail.
4. The sworn testimony of the Defendant Jones necessary to prepare for and to
prove Plaintiff’s allegations. The sworn testimony is also necessary prior to
mediation and/or trial on the merits.
II. Refusal to Attend Deposition
5. Plaintiff Faire seeks this Order compelling Defendant Jones to attend the
deposition because the deposition first set for January 27, 2015 was quashed. Plaintiff
conferred with opposing counsel, and has noticed Defendant Jones’ deposition again
for April 13, 2015, September 23, 2015 in a companion case to the instant case, and
October 2, 2015. Plaintiff believes a notice for deposition through his counsel is not
sufficient to compel Defendant Jones to attend.
6. The deposition for October 02, 2015 was reset because of Defendant
Jones’ unavailability. Defendant Jones, who owns and operates numerous fast food
franchises is of the belief that such business interests supports his notion that he is
above the law and is of the opinion that in spite of his personal and professional
misconduct he does not have to follow the Texas Rules of Civil Procedure, in
particular his legal obligation as a defendant to give sworn testimony.
7. Defendant Jones has a history here in Bexar County, Texas of making
judicial admissions in other proceedings that would shock the conscious of this
tribunal and has not suffered consequences. For example, Defendant Jones testified
before the Hon. Judge Cathy Stryker, that he had paid $10,000 cash for his third wife
in the Dominican Republic.
8. Plaintiff believes that if Jones does not hold respect for the global laws of
human rights and United States laws prohibiting human trafficking Defendant Jones
will not attend the oral and videotaped deposition now scheduled October 27, 2015.
III. Sanctions Requested
9. Plaintiff requests that an Order compelling Defendant Allen Jones
include serious sanctions. This court can impose sanctions, including the ultimate
sanction of dismissal or default authorized by Tex. R. Civ. P 215.2 (b).
10. At the time of this hearing, Plaintiff Faire will testify to the flagrant bad
faith and repeated discovery abuses by Defendant Jones that will support her request
for the ultimate sanction of dismissal or default as authorized by the Rule.
11. Plaintiff further requests the Court upon proof of Defendant Jones lying
(perjury) during the deposition, to impose the appropriate sanctions. This court is
authorized to impose sanctions ranging from the payment of expenses and attorney
fees to a default judgment. See TRCP 215.2 (b)
12. Plaintiff Faire would show that from the minimum records produced it is
evident that Defendant Jones has given false statements concerning the time, place
and reason for the employment termination. Defendant Jones is expected to obstruct
the court in the performance of its duties in this case. See In re Reece, 341 S.W.3d
360, (Tex. 2011).
III. ARGUMENT & AUTHORITIES
13. The purpose of discovery is to seek the truth, so disputes may be
decided by what facts are revealed, not by what facts are concealed. Axelson, Inc. v.
McIlhany, 798 S.W.2d 550, 555 (Tex. 1990). Discovery may be obtained about any
matter relevant to the subject matter of the case. Tex. R. Civ. P. 192.3(a).
Information is discoverable as long as it appears “reasonably calculated to lead to
the discovery of admissible evidence.” Id.
14. Plaintiff’s discovery requests are reasonably calculated to lead to the
discovery of admissible evidence. Specifically, by this motion, Plaintiff seeks
Defendant Jones’ sworn testimony to prove Plaintiff’s claims. Defendants, in their
previous Motion to Quash depositions misrepresented to the Court that Plaintiff
made no attempt to confer, when in actuality, Defendants ignored Plaintiff’s attempts
to confer, leaving her no alternative to notice the first depositions. Defendant Jones
has a history of making misrepresentations to the Court.
15. Plaintiff would show that without a court order and a threat of serious
sanctions compelling Defendants Jones to appear for this deposition on October 27,
2016, Defendant Jones is not expected to appear. Plaintiff will then be prejudiced by
not having information that cannot be obtained from any other source, as all of
Plaintiff’s claim are based on Jones’ unlawful conduct.
EXPENSES OF MOTION
16. Plaintiff has incurred expenses in preparing and filing this motion to obtain
relief. Under Texas Rule of Civil Procedure 215.1(d), Plaintiff is entitled to
reasonable expenses incurred in obtaining the order, including attorney fees.
CONCLUSION
17. Plaintiff requests an order compelling Defendant Jones to appear on October
27, 2015, and give sworn testimony to support the validity of Plaintiff’s allegations
pending in claims before this court.
PRAYER
For these reasons, Plaintiff asks the Court to set this motion for hearing and,
after the hearing, to compel Defendant Jones to give sworn testimony relevant to the
pleadings before the Court. Plaintiff further requests as part of the order an award for
reasonable expenses incurred in filing this motion, including attorney fees. Plaintiff
prays for all other and further relief to which she is entitled.
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111Soledad, Suite 1725
San Antonio, Texas 78205
Telephone (210) 226-1550
Facsimile (210) 226-1884
Argyle2@sbcglobal.net
/s/ Olga Brown___________
OLGA BROWN
State Bar No. 03155500
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I do hereby certify that on the 1st day of October 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Second Motion to Compel was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES, §
INDIVIDUALLY, AND §
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
FIAT
Plaintiff’s Notice of Hearing for Plaintiff’s Second Motion to Compel Deposition,
has been duly submitted to the Court and request is made for hearing thereon and is
hereby set for hearing on the 12th day of October, 2015 at 8:30 a.m. in Presiding
Court ,Room 1.09, of Bexar County Courthouse, San Antonio, Texas.
SIGNED this the ____ day of October, 2015.
______________________________
HON. JUDGE PRESIDING
CERTIFICATE OF SERVICE
I do hereby certify that on the 1st day of October 2015, in accordance with the
TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Second Motion to Compel Deposition was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
Appendix 5
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, § 150TH JUDICIAL DISTRICT
ALL JONES, LLC, ALLEN J JONES, §
INDIVIDUALLY, AND §
PETER DONBAVAND, AND JASON §
KEMP, INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO DEFENDANT JONES’ MOTION TO DISQUALIFY
PLAINTIFF’S ATTORNEY
TO THE HONORABLE OF SAID COURT:
NOW COMES PLAINTIFF FAIRE, who herein files her Response to Defendant
Jones’ Motion for Disqualification of Plaintiff’s attorney and respectfully requests this
Court to DENY such untimely and groundless motion and in support thereof would
show the Court as follows:
I. Defendant Jones Has Waived Objections To Brown’s Representation By An
Unexplained Delay For One Year
Plaintiff Faire attempted to resolve her claims against Defendant Jones prior to
filing this lawsuit on October 21, 2014. At the time of the pre-suit discussions, on
September 11, 2014, Plaintiff Faire also informed Defendant Jones that she had
interviewed several attorneys and that she intended to hire Brown if the matters
between them did not resolve. Defendant Jones did not object. Defendant Jones
has produced a copy of an email dated September 11, 2014 and September 17,
2014, wherein they were privy to information that Plaintiff intended to and did hire
Brown, and paid Brown a retainer. See Exhibit “A”
Defendant Jones failed to move for disqualification when Jones filed his answer
on November 24, 2014, nine and a half (9 ½) months ago. Defendant Jones also
failed to move for disqualification when Brown represented Plaintiff beginning on
October 16, 2014 in defense of his attempts to evict her from the home he had
promised her on 8647 Timber Place, San Antonio, TX 78250. Defendant Jones
again failed to move for disqualification when Brown represented Plaintiff at Jones’
second attempt to evict the Plaintiff, properly abated by the Justice court on October
29, 2014, nine (9) months ago.
Defendant Jones failed to move for disqualification when Brown represented
Plaintiff Faire in the third attempt by Defendant Jones to evict Faire from the
residence he gifted her, which the court dismissed finding the Plaintiff Jones had not
proven their case by a preponderance of the evidence, on August 19, 2015.
Defendant Jones failed to move for disqualification of Plaintiff’s counsel when
he moved for an expedited dismissal of some Plaintiff’s claims on December 22,
2014, eight and one half (8 ½) months ago. The trial court granted Jones’ Rule 91a
motion on the mistaken notion of a summary judgment standard. Plaintiff intends to
appeal the ruling.
2
It is just over one year that Defendant Jones has had actual notice that Plaintiff
Faire had retained Brown. Defendant filed the motion to disqualify on September 9,
2015. Waiver of Motion is determined by the filing of Motion. In re Butler, 987 S.W.
2d 221, 224 (Tex. App.—Houston [14th Dist.] 1999, orig. proceedings).
II. DEFENDANT JONES HAS FAILED TO ESTABLISH GROUNDS FOR
DISQUALIFICATION OF PLAINTIFF’S COUNSEL
Plaintiff asserts that notwithstanding the fact that this is an untimely motion,
Defendant Jones has failed to establish with specificity the circumstances that justify
the attorney’s disqualifications one year later.
Defendant Jones has failed to allege the facts and issues involved in both
former (a divorce ) and present (employment claims) litigation are similar.
A requirement, if he alleges Plaintiff was a member of the litigation team of the
former suit, when in fact she was not. See Affidavit of Plaintiff, herein marked as
Exhibit “B” and incorporated here for all purposes.
Defendant Jones is required to provide evidence of specific similarities that
would be included and recited in the disqualification order.
Plaintiff Faire was not a member of his litigation team during the pendency of
the Jones divorce. Jones was represented by Sam Bashara and his office who did
not need the assistance of a clerk to properly defend Jones. Plaintiff Faire never met
with Bashara or any members of his staff during the divorce proceedings. Plaintiff
was merely the passive recipient of emails having to do with calendar and deadlines
of Defendant Jones.
Plaintiff would further show that emails are not privileged information.
Further, Defendant Jones “wiped” Plaintiff’s personal and business phone, and
emails produced were those that were remained in the electronically stored
communications on Plaintiff’s personal email account.
III. No Fiduciary Duty Between Jones and Faire
Plaintiff Faire would show there is no fiduciary duty existing between her and
Jones. The facts of the this case do not support an obligation for Plaintiff Faire to
honor the duty of loyalty, and utmost good faith and including the duty to act in
Defendant Jones’ best interest when the facts of this case would also support a
claim for wrongful termination under Sabine Pilot Serv. v. Hauck 687 S.W.2d 733,
735 (Tex. 1985).
The elements of Sabine Pilot are simply 1) plaintiff was an at-will employee, 2)
plaintiff refused to perform an illegal act, 2) plaintiff was terminated solely because of
the refusal. The law would not impose a fiduciary duty on an employee whose
employer demanded and ordered her to commit acts in violations of human rights.
4
Movant has failed to establish any evidence that would support a fiduciary
duty exists between Defendant Jones and Plaintiff in light of the allegations of this
suit and of documents that have been exchanged through proper discovery
requests. Mere conclusory statements of employee/employer relationship in this
case are not sufficient to claim a fiduciary duty.
In this case, since Plaintiff Faire does not owe Defendant Jones a fiduciary
duty, thus the bold conclusion that Brown assisted and encouraged Plaintiff Faire to
breach her fiduciary duty to Jones is without merit. None of Movant’s cases cited in
this paragraph are on point. The Johnson case is a dispute between a law firm and
an ex-associate over referral fees. Flanagan Shipping Corp defines the
responsibility of a third-party who participates in a breach of fiduciary duty. Plaintiff
Faire agrees with the definition, however, there is no fiduciary duty established here
for Brown to knowingly participate in.
Brown should not be disqualified if “ through no wrongdoing on her part, she
gained possession of opponent’s confidential information without regard to the
significance of the information or other circumstances”. See In re Meador. 968
S.W.2d 346, 351-52 (Tex. 1998). Any emails between Bashara’s office and Jones
were scrutinized by Jones when his office wiped Plaintiff’s electronic devices, and
when he forwarded to her personal email accounts the emails they now complain of.
Emails are not private and after six months lose confidentiality if any existed.
IV. BROWN SHOULD NOT BE DISQUALIFIED FOR RECEIVING
“ALLEGED “ PRIVILEGED MATERIALS
Defendant Jones seeks to untimely disqualify Plaintiff’s counsel for receiving
“alleged” privileged emails outside the normal discovery process without first
establishing he is without fault that Plaintiff Faire was in possession without his
consent and knowledge.
Plaintiff Faire has plead that she was in the Domincan Republic “assisting
him in the defense of his child custody litigation here in Bexar County. Plaintiff
Faire has not admitted to the responsibilities attributed to her in the Jones Affidavit.
Plaintiff Faire assisted him in the care of the infant son he was holding hostage
in the Dominican Republic to gain leverage in the divorce proceedings. Neither
Jones nor Bashara told her she was part of the legal team or that she was being
entrusted with privileged information that was not a matter of public record.
Defendant Jones has failed to establish the most important element required for
disqualification; that being the significance of the privileged information. See In
re Meador,
While Movant has listed some the bates-stamped documents the Plaintiff has
produced, the fact the documents originated from his previous law firm in and of
itself is not enough to make the emails privileged.
6
Defendant Jones has not disclosed to this court, the extent to which he is at
fault in this matter. Defendant Jones, routinely forwarded email to Plaintiff’s
personal email account.
If Plaintiff’s personal email account contained any alleged privileged information
it was at the request of Jones.
ARGUMENTS & AUTHORITIES
I. Waiver
Plaintiff Faire asserts that this Court go no further than a determination of
waiver of this claim for disqualification of her attorney. Defendant Jones has failed
to bring this motion in a timely manner. For over a year, Defendant Jones has had
the best of legal representation in the area of employment law. This case has been
intensively litigated over many hearings which, at any one of those times, he could
have filed this motion. Defendant Jones had many opportunities to bring this motion,
and completely ignored that his window of opportunity could be narrow.
If Defendant Jones had filed this motion on December 2014, the courts have
found two months is a reasonable time to bring disqualification motions. Wasserman
v. Black, 910 S.W.2d 564, 569 (Tex. App.__Waco 1995, no writ) Even three
months delay in filing the motion could also be timely with Buck v. Palmer, 381
S.W.3d 525 , 528 (Tex. 2012) (per curiam).
In Vaughan v. Walther, 875 S.W.2d 690, 691 (Tex. 1994) original proceeding,
the Court found an “unexplained seven-month delay in seeking the attorney’s
disqualification was sufficient to establish waiver. Also a six and one-half month
delay in seeking attorney’s disqualification resulted in waiver. Conoco Inc. v. Baskin,
803 S.W.2d 416, 419 (Tex. App.__El Paso 1991, no writ)
II. Lack of Specificity
By this Motion all Movant has established is that Plaintiff’s Counsel represented
Defendant Jones’ third wife in child custody litigation. The facts known to Plaintiff’s
counsel are a matter of public record. Mainly, Movant abducted his infant son and
held him hostage in the Dominican Republic.
In good-faith Plaintiff has produced emails that were left in Plaintiff’s personal
email accounts after Movant had an opportunity to “wipe” the electronically stored
information at the time of her termination of employment.
Also by this Motion Movant is requesting a severe remedy/relief against
the Plaintiff. In considering this motion this “ court must adhere to an exacting
standard”. See Spears v. Fourth Ct. of Appeals, 797 S.W.2d 654, 656 (Tex. 1990).
Mere allegations of unethical conduct on the part of the Plaintiff and her counsel will
not do. In re Sanders, 153 S.W.3d 54 57 (Tex., 2004)
8
Movant’s motion is not sworn to. The exhibits attached therein are not
sufficient to establish that Plaintiff was a member of the litigation team. There were
no representations by Movant or his counsel Bashara that informed the Plaintiff that
she was a member of the litigation team involving child custody issues.
The Jones affidavit is not sufficient evidence to establish the fact that a conflict
exists. Plaintiff would show that and attaches herein that Jones had judicially
admitted to paying $10,000.00 to a brothel owner for his wife See Exhibit C. Jones a
sophisticated businessman knows this is a crime and a serious violation of human
rights. His affidavit is objectionable on that basis. Therefore there is no evidence to
support the disqualification of Plaintiff’s counsel. Movant has failed to prove that
the factual matters involved in the child custody suit were closely related to the
pending litigation. They were not.
This motion is not specific as to what specific confidences and secrets were
imparted to the Plaintiff and what harm if any it has caused the Movant.
III. Meador
In this case, the trial court refused to disqualify Plaintiff’s counsel. Like in this
case, the Defendant accused the lawyer of improperly using privileged information,
documents which the lawyer’s client (in another lawsuit) secretly removed from
Defendant’s office.
The trial court refused to disqualify the lawyer. Additionally, in this lawsuit, the
Movant actually forwarded email to the Plaintiff’s personal email account, from his
previous lawsuit, without any confidential statements or requests. If there are any
claims of unauthorized disclosure, it is the Movant that is responsible for the
disclosure of those documents.
CONCLUSION & PRAYER
Nowhere in his sixteen (16) page motion does Movant offer an explanation for
his one year’s delay in filing his motion to disqualify Plaintiff’s counsel. Nowhere in
his motion does Defendant Jones specifically shows this Court the sensitivity of the
alleged privileged information.
Defendant Jones fails to show this Court how he is harmed by the receipt of
information he requested from the Plaintiff. Defendant Jones simply makes
conclusory statements unsupported by the evidence required to meet his burden.
For the reasons stated above and supported by Movant’s caselaw Plaintiff
respectfully requests this Court issue an Order denying Defendant Jones’ Motion to
Disqualify. Plaintiff Faire prays for all other and further relief to which she is justly
entitled.
10
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argyle2@sbcglobal.net
By: /s/ Olga Brown__________
OLGA BROWN
State Bar No. 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 15TH day of September 2015, in accordance
with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Response to Defendants’ Motion to Disqualify was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
Date: Fri, 19 Sep 2014 10:21:33 -0400
From: Tracy Amass
To: Peter Donbavand
Subject: FW: Receipt from Olga Brown
From: Lisa Mittelberg
Sent: Friday, September 19, 2014 8:44 AM
To: Tracy Amass
Subject: FW: Receipt from Olga Brown
It looks like Cearth still thinks that she works for Allen. Here is a copy of a credit card receipt
that she signed and I received it this Wednesday. Allen didn’t know what it was for. I did call
the attorney (Olga Brown) and gave them Allen’s cell so that they could look into it and get
back to him about it.
Lisa Mittelberg
Executive Assistant
Food Management Partners Inc.
120 Chula Vista
Hollywood Park, Texas 78232
Phone 210-403-3725 ext 201
Fax 210-403-3580
From: Allen Jones
Sent: Friday, September 19, 2014 7:19 AM
To: Lisa Mittelberg
Subject: Re: Receipt from Olga Brown
No idea what this is
Sent from my iPhone
On Sep 17, 2014, at 3:51 PM, "Lisa Mittelberg" < lmittelberg@foodmps.com >
wrote:
Isn’t this the name of your attorney?
Lisa Mittelberg
Executive Assistant
Food Management Partners Inc.
120 Chula Vista
Hollywood Park, Texas 78232
Phone 210-403-3725 ext 201
Fax 210-403-3580
DEF-CF-00527
From: Square [ mailto:noreply@messaging.squareup.com ]
Sent: Wednesday, September 17, 2014 2:49 PM
To: Cearth Faire
Subject: Receipt from Olga Brown
Spac er
Olga Brown
How was your experience?
Positive
$ 2,500.00
Custom Amount $2,500.00
Total $2,500.00
Visa 4704 9/17/14, 1:58 PM
#YJTE
R e c e ip tb o to m e d g e
© 2014 Square, Inc. All rights res erved.
1455 Market Street, Suite 600, San Francis co, CA
94103
Square Privacy Policy
Not your receipt?
Manage preferences for digital receipts
F o o te rlo g o
DEF-CF-00528
Date: Fri, 12 Sep 2014 10:31:39 -0400
From: Peter Donbavand
To: Jason Kemp
Cc: Allen Jones
Subject: RE: Code of ethics
This code is for BWW Corp employees. Unless I am missing something, I wouldn’t be overly
concerned. Olga Brown was not a particularly good attorney and even if she did bring a
case, we have plenty of witnesses to corroborate her erratic behavior and discredit her.
Peter Donbavand
Vice President
Real Estate & Business Development
Food Management Partners
210-403-3725 ext 218
pdonbavand@foodmps.com
Confidentiality: The information contained in this e-mail and any attachments to it is
privileged, confidential, and protected from disclosure. If you are not the intended recipient,
you are hereby notified that any dissemination, distribution or duplication of this
communication is strictly prohibited. If you have received this communication in error, please
notify the sender immediately, and delete it from your network server and/or hard drive.
From: Jason Kemp
Sent: Thursday, September 11, 2014 1:20 PM
To: Peter Donbavand
Cc: Allen Jones
Subject: Fwd: Code of ethics
JK
**********************************************
Jason R. Kemp
Co-founder & CFO
Food Management Partners, Inc.
120 Chula Vista
Hollywood Park, Texas 78232
P- 210-403-3725 ext. 217
F- 210-403-9097 *Confidential fax*
C- 210-268-2006
Jasonkemp@FoodMPS.com
Begin forwarded message:
From: Cearth < mommiesawitch@yahoo.com >
Date: September 11, 2014 at 1:15:43 PM CDT
To: < allenjones@foodmps.com >, < jasonkemp@foodmps.com >, <
DEF-CF-00486
brianpadilla@foodmps.com >
Subject: Code of ethics
Allen,
I don't have to do this but I contacted Olga Brown. I have included the
partners that will be served with subpoenas. Our affair and
subsequent termination is in violation of this code.
http://files.shareholder.com/downloads/BWLD/0x0x481458/2d00f2bc-5360-
442c-8f00-49c13da5b325/code_of_ethics.pdf
Contact me if you are interested in keeping this out of court.
210-725-5213
Cearth Faire
Sent from my T-Mobile 4G LTE Device
DEF-CF-00487
EXHIBIT B
CAUSE NO. 2014-CI-16674
CEARTH FAIRE IN THE DISTRICT
Plaintiff
V.
150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, LLC,
D/BIA FOOD MANAGEMENT
PARTNERS, LLC,
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, INDIVIDUALLY
Defendants BEXAR COUNTY, TEXAS
AFFIDAVIT
STATE OF TEXAS
COUNTY OF BEXAR
BEFORE ME, the undersigned authority, a notary public in and for the State of
Texas, personally appeared Cearth Faire, known to be the person whose name is
subscribed to this affidavit and who after being duly sworn by me did on her oath
depose and state the following, to-wit:
1„ "My name is Cearth Faire. I am over the age of 18 and I am fully competent
to make this Affidavit in all respects and the statements contained herein are
within my personal knowledge and true and correct..
2.. I am the Plaintiff in this lawsuit against Allen J Jones, FMP, ALL JONES, LLC,
Peter Donbavand and Jason Kemp, all officers of the business entities..
3.. I am a former employee of FMP and ALL JONES.. I was hired November 12,
2012 and fired August 31, 2014.. At all times, I was employed as Allen Jones'
personal assistant.. My knowledge of Mr.. Jones' business was limited to
assisting in personal matters, handling calendars and scheduling travel
4.. My attorney, Olga Brown, represented Mr.. Jones' third wife, Tetyana Jones,
in an international child custody case.. Mr.. Jones was accused of holding the
infant, Astin, in the Dominican Republic to gain an advantage in his divorce
action.. My case against Jones is about his oral gift of real estate, sexual
harassment and related actions.. The factual information is completely
different and unrelated.
EXHIBIT B
5. I was never told I was part of his litigation team. During the period, March 12,
2013 to July 17 2013, when I was required to work in the Dominican Republic,
to care for his child and other matters, is when Mr. Jones first made his oral
promise of real estate, his promise to buy me a house,.
6.. As Mr.. Jones' personal assistant, I was to gather personal information and
forward it to this legal team, Peter Donbavand, Melissa Figueroa and counsel
Sam Bashara. I was never informed, nor assumed that I was part of any
litigation team. I have no education in this field.. Mr.. Bashara never asked for
my assistance Peter Donbavand was the person in the key role of liaison to
his attorneys in San Antonio and in the Dominican Republic.
7.. On Saturday, August 30, 2014, as part of my employment, at Mr.. Jones'
direction, I traveled with him, his girlfriend, his children, and the nanny to
South Padre Island for the Labor Day weekend, in his 2014 Mercedes G450
On the morning of Sunday, August 31, 2014, when I refused to engage in a
sexual encounter that I found offensive, he fired me.. However, he refused to
allow me to return to San Antonio, forcing me to stay in that toxic
environment.. I was forced to ride back to San Antonio with him and everyone
else on Monday, September 1, 2014..
8.. In response to discovery served by Allen Jones, attached as Exhibit A to this
affidavit, I produced 97 pages responsive to what Allen Jones asked for in his
Interrogatory No.. 12, and Request for Production No.. 70, that he now
complains of.. Some were duplicates in that I produced emails both sent
directly to my personal account, and those I forwarded to my work account I
turned these documents over to my attorney, as requested by Allen Jones
and his attorneys.. Ms. Brown has not represented Mr.. Jones' ex-wife since
July of 2013.. I did not have these, nor had I used them in anyway myself,
except to respond to his demands
,,A.WAP012% .d111.11 /
Signature
SWORN and SUBSCRIBED to before me on this of September 2015
t,1
1?4:4:, RAMONA 1. FLORES Notary Publi in and for State of Texas
.4v." : r Notary Public, State of Texas
My Commission Expires
August 16, 2016 My commission expires: Ca/ )0
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
CAUSE NO.
CAUSE NO. 2014-CI-16674
2014-CI-16674
CEARTH
CEARTH FAIRE
FAIRE §
§ IN THE
IN THE DISTRICT
DISTRICT
Plaintiff §
§
§
§
V.
V. §
§
§
§ 150TH JUDICIAL DISTRICT
150TH JUDICIAL DISTRICT
FMP SA
FMP SA MANAGEMENT
MANAGEMENT GROUP,
GROUP, §
§
LLC, D/B/A
LLC, D/B/A FOOD
FOOD MANAGEMENT
MANAGEMENT §
§
PARTNERS, LLC,
PARTNERS, LLC, §
§
ALL JONES,
ALL JONES, LLC,
LLC, ALLEN
ALLEN J
J JONES,
JONES, §
§
INDIVIDUALLY, AND
INDIVIDUALLY, AND §
§
PETER DONBAVAND,
PETER DONBAVAND, §
§
INDIVIDUALLY
INDIVIDUALLY §
§
§
§
Defendants §
§ BEXAR COUNTY,
BEXAR COUNTY, TEXAS
TEXAS
PLAINTIFF’S OBJECTIONS
PLAINTIFF'S OBJECTIONS AND
AND RESPONSES
RESPONSES TO
TO DEFENDANT
DEFENDANT ALLEN
ALLENJJ JONES'
JONES’
FIRST SET
FIRST SET OF
OF INTERROGATORIES AND FIRST
INTERROGATORIES AND FIRST REQUEST FOR PRODUCTION
REQUEST FOR PRODUCTION
TO:
TO: Fmp
Fmp SaSa Management
Management Group,
Group, LLC,
LLC, D/B/A
D/B/A Food
Food Management
Management Partners,
Partners, LLC,
LLC, All
All
Jones, LLC,
Jones, LLC, Allen
Allen J J Jones,
Jones, and
and Peter
Peter Donbavand,
Donbavand, Defendants,
Defendants, by
by and
and through
through
their attorney
their attorney of
of record,
record,Christine
ChristineEEReinhard,
Reinhard,17806
17806IH
IH 10
10 West, Suite 400,
West, Suite 400,
San Antonio, Texas
San Antonio, Texas 78257.
78257.
Plaintiff, Cearth
Plaintiff, Cearth Faire, serves these
Faire, serves these objections
objections and
and answers
answers to Defendant Allen
to Defendant Allen J
J
Jones’ first
Jones' first set
set of
of interrogatories
interrogatories and
and first
first requests
requests for
for production.
production.
Respectfully submitted,
Respectfully submitted,
LAW OFFICE
LAW OF OLGA
OFFICE OF OLGA BROWN
BROWN
111 Soledad, Suite
111 Soledad, Suite 1725
1725
San Antonio, Texas
San Antonio, Texas 78205
78205
210/226-1550 telephone
210/226-1550 telephone
210/226-1884 facsimile
210/226-1884 facsimile
Argyle2@sbcglobal.net
Arbyle2@sbcglobal.net
By: Is/
By: /s/ Olga
Olga Brown
Brown_______
OLGA BROWN
OLGA BROWN
State
State Bar
Bar No.
No. 03155500
03155500
Attorney for
Attorney for Plaintiff
Plaintiff
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
CERTIFICATE OF
CERTIFICATE OF SERVICE
SERVICE
II do
do hereby
hereby certify
certify that
that on
on the 1st day
the 1st day of
of April
April 2015,
2015,in inaccordance
accordance with
with the
the
T EXAS R
TEXAS ULES OF
RULES OFCCIVIL
IVIL PROCEDURE
PROCEDURE, , a true and
a true andcorrect
correctcopy
copyofofthethe above and
above and
foregoing Plaintiff’s
foregoing Plaintiff's Objections
Objectionsandand Responses
Responses to to Defendant
Defendant Allen
Allen JJ Jones’
Jones' First
First Set
Set
of Interrogatories
of Interrogatories and
andFirst
First Request
RequestforforProduction
Production toto Plaintiff
Plaintiff was
was furnished
furnished to:
to:
Christine E
Christine E Reinhard
Reinhard
SCHMOYER REINHARD LLP
SCHMOYER REINHARD LLP
17806 IH 10
17806 IH 10 West,
West, Suite
Suite 400
400
San Antonio, Texas
San Antonio, Texas 78257
78257
/s/ Olga
/s/ Olga Brown
Brown_______
OLGA BROWN
OLGA BROWN
2
2
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
PLAINTIFF’S OBJECTIONS
PLAINTIFF'S OBJECTIONS AND
AND RESPONSES
RESPONSES TO
TO DEFENDANT
DEFENDANT ALLEN
ALLEN JJ JONES'_
JONES’
FIRST SET
FIRST SET OF
OF INTERROGATORIES
INTERROGATORIES
INTERROGATORY NO. 1:
Identify
Identify each instance in
each instance in which
which you
you contend
contend Jones
Jones "promised
“promised Plaintiff
Plaintiff that
that he would
he would
buy
buy aa home
home and
and transfer
transfer ownership
ownership to to her,"
her,” as
as alleged
alleged in inyour
your Petition,
Petition, including
including the
the
dates on which
dates on which such
such promises
promises were
were made, the manner
made, the manner in in which
which Jones
Jones allegedly
allegedly made
made
such promises
such promises (e.g.,
(e.g., by email, oral
by email, oral communications,
communications, etc.) etc.) and any witnesses
and any witnesses to to such
such
communications.
communications.
ANSWER:Plaintiff
ANSWER: Plaintiffobjects
objects and
anddeclines
declines toto give
give aa narrative
narrative answer
answerto to this
this Interrogatory.
Interrogatory.
Subject
Subject to and without
to and without waiving
waiving the
the foregoing
foregoing objection,
objection,JuneJune 2013 while working
2013 while working 24/7
24/7
in the Dominican
in the Dominican Republic,
Republic, August
August 2013 while celebrating
2013 while celebrating Mr.Mr. Jones'
Jones’ birthday,
birthday, and
and
numerous other conversations during the course of all evening/night work
numerous other conversations during the course of all evening/night work as personal as personal
assistant.
assistant.
INTERROGATORY NO. 2:
If
If you
you contend
contend youyou were employed by
were employed by Jones,
Jones, state
state the
the factual
factual basis
basis for
for your
your contention.
contention.
ANSWER: Plaintiff
ANSWER: Plaintiff objects
objects to
to this
this request
request because
because itit isis overly
overly broad,
broad, premature,
premature, not
not
limited
limited in
in time
time or scope, and
or scope, and further
further objects
objects toto this
this request
request because
because itit requires
requires Plaintiff
Plaintiff
to marshal
to marshal all
all her
her evidence
evidence onon this
this particular
particular issue,
issue, andand such
such request
request is is improper
improper
Subject
Subject to
to and without waiving
and without waiving the
the foregoing
foregoingobjection,
objection,please
pleaserefer
refertotoDEF-CJ-00065,
DEF-CJ-00065,
0452/53, DEF-CF-00220-384.Plaintiff
0452/53, DEF-CF-00220-384. Plaintiffwill
willsupplement
supplement as as required
required byby the
the rules
rules
INTERROGATORY NO. 3:
Identify
Identify all documents supporting
all documents supporting your
your contention
contentionthat that Jones
Jones “authorized
"authorized for the
for the
necessary
necessary real estate transactions
real estate transactions to to be initiated that
be initiated would result
that would result in a purchase
in a purchase
transaction and
transaction an immediate
and an immediate transfer
transfer of
of ownership,"
ownership,” as alleged in
as alleged in your
your Petition.
Petition.
ANSWER:Objection,
ANSWER: Objection, duplicative.
duplicative. Please
Pleaserefer
refertoto Plaintiffs
Plaintiff’s Objections
Objections and
and Responses
Responses
to Defendant
to Defendant ALL ALL JONES,
JONES, LLC's
LLC’s First
First Set
Set ofof Interrogatories,
Interrogatories, Interrogatory
Interrogatory No.
No. 4, and
4, and
Plaintiff’s Objections
Plaintiff's Objectionsandand Responses
Responses to Defendant FMP's
to Defendant FMP’s Request
Request for
for Production,
Production,
Request No.
Request No. 47.
47.
INTERROGATORY NO. 4:
Identify
Identify all
all copies
copies of ofthe
the“written
"writtenagreement
agreement [Jones
[Jones promised
promised to to execute] at closing,
execute] at closing,
giving [you]
giving [you] full
full title
title and
and interest
interest to
to the
the home,”
home," as as alleged in your
alleged in your Petition.
Petition.
ANSWER:Objection,
ANSWER: Objection, duplicative.
duplicative. Please
Pleaserefer
refertoto Plaintiffs
Plaintiff’s Objections
Objections and
and Responses
Responses
to Defendant
to Defendant ALL ALL JONES,
JONES, LLC's
LLC’s First
First Set
Set of
of Interrogatories,
Interrogatories, Interrogatory
Interrogatory No.
No. 5, and
5, and
Plaintiff’s Objections
Plaintiff's Objectionsand and Responses
Responses to Defendant FMP's
to Defendant FMP’s Request
Request forfor Production,
Production,
Request No.
Request No. 60.
60.
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
INTERROGATORY NO. 5:
Identify
Identify all “necessary documents”
all "necessary documents" Jones Jones promised
promised to to sign “to give
sign "to give Plaintiff
Plaintiff full
full and
and
complete ownership
complete ownership of of the
the home,"
home,” including
including any such documents
any such documents in in your
your possession,
possession,
custody, and
custody, control, whether
and control, whether you you contend
contend such
such documents
documents were were drafted,
drafted, and the
and the
approximate date(s) on
approximate date(s) on which
which you you reviewed
reviewed anyany such
such documents.
documents.
ANSWER:Plaintiff
ANSWER: Plaintiffobjects
objects toto this
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further object
object
to this
to this request
request because
because itit requires
requires Plaintiff
Plaintiff to
to marshal
marshal allall her evidence on
her evidence on this
this particular
particular
issue,
issue, and such request
and such request isis improper.
improper. Subject
Subject to toand
andwithout
without waiving
waiving the
the foregoing
foregoing
objection, Plaintiff
objection, Plaintiff was
was not
not presented
presented withwith any documents for
any documents for review
review byby Defendants.
Defendants.
Plaintiff will
Plaintiff supplement when
will supplement Defendants properly
when Defendants properly and and completely
completely respond
respond to to
Plaintiff’s request
Plaintiff's request for documents under
for documents under the possession, custody
the possession, custody and control of
and control of
defendants. See
defendants. See TRCP
TRCP 193.1.
193.1.
INTERROGATORY NO. 6:
Identify
Identify each manner in
each manner in which
which you
you contend
contend youyou "detrimentally
“detrimentally relied
relied upon [Defendant
upon [Defendant
Jones’s]
Jones's] misrepresentation," as alleged in your Petition, including but not limited to
misrepresentation,” as alleged in your Petition, including but not limited to any
any
costs or
costs or expenses incurred based
expenses incurred based onon such
such alleged
alleged misrepresentations.
misrepresentations.
ANSWER:Plaintiff
ANSWER: Plaintiffobjects
objects and
anddeclines
declines to to give
give aa narrative
narrative answer
answerto to this
this Interrogatory.
Interrogatory.
Subject
Subject toto and
and without
without waiving
waiving the
the foregoing
foregoing objection,
objection, Plaintiff,
Plaintiff, with
with consent
consent from
from
Defendants Jones
Defendants Jones andand Donbavand,
Donbavand, took
took possession
possession of of her
her home
home on on or or about
about July
July 30,
30,
2014, incurred
2014, incurred moving
moving expenses,
expenses, andand proceeded
proceeded to to make
makeimprovements,
improvements, including
including but
but
not
not limited
limited to
to purchasing
purchasing andand installing
installing aa hot
hot water
water heater.
heater.
INTERROGATORY NO. 7:
If you are
If you seeking an
are seeking an award
award ofof any
any sum
sum of
of money,
money, whether
whether byby damages
damages or or otherwise,
otherwise,
state the
state the full
full amount
amount ofof money
money youyou seek
seek and describe the
and describe manner in
the manner in which
which the amount
the amount
was calculated. Your
was calculated. Your description
description should
should include
include each
each element
element or damage or
or damage or
component ofof recovery
component recoverythat
that you
you seek,
seek, the amount sought
the amount sought for each element
for each element or or
component, the
component, the manner
manner in which each
in which element or
each element or component
component waswas determined,
determined, and
and
should identify
should identify the
the source
source of
of each
each number used in
number used in the
the calculation.
calculation.
ANSWER: Plaintiff
ANSWER: Plaintiff objects
objects as this request
as this request is duplicative. Please
is duplicative. Please see
seePlaintiff's
Plaintiff’s
Objections
Objectionsand Responses to
and Responses Defendant FMP's
to Defendant FMP’s First
First Set
SetofofInterrogatories,
Interrogatories,
Interrogatory
Interrogatory No.
No. 15.
15.
INTERROGATORY NO. 8:
Identify
Identify each act committed
each act committed by by Jones
Jones in
in furtherance
furtherance ofof the
the "conspiracy'
“conspiracy” alleged
alleged inin your
your
Petition.
Petition.
ANSWER:Plaintiff
ANSWER: Plaintiffobjects
objects and
anddeclines
declines to
to give
give aa narrative
narrative answer
answerto to this
this Interrogatory,
Interrogatory,
because
because thethe request
request asks
asks for
for information
information that
that is
is available
available from
from Defendants'
Defendants’ business
business
records
records and said Defendants
and said Defendants can can obtain
obtain such
such information
information from
from their
their own
own intracorporate
intracorporate
emails
emails asas this
this was
was aa routine
routine matter
matter ofof conducting
conducting business. Plaintiff objects
business. Plaintiff objects because
because
this request
this requires Plaintiff
request requires Plaintiff to
to marshal
marshal all
all her evidence on
her evidence on this
this particular
particular issue, and
issue, and
4
4
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
such request
such request isis improper
improper .. Subject
Subject to
to and
and without
without waiving
waiving the
the foregoing
foregoing objection,
objection, see
see
Plaintiff’s objections
Plaintiff's objectionsandand responses
responsesto to Defendant
Defendant FMP’s First Set
FMP's First Set of
ofInterrogatories,
Interrogatories,
Interrogatory
Interrogatory17. Plaintiff will
17. Plaintiff will supplement
supplement asas required
required by
by the rules.
the rules.
INTERROGATORY NO. 9:
Identify
Identify the
the goal or objective
goal or objective of
of the conspiracy alleged
the conspiracy in your
alleged in your Petition.
Petition.
ANSWER:Plaintiff
ANSWER: Plaintiff objects
objects toto this
this request
request because
because thethe answer
answer is
is based
based onon information
information
obtained from
obtained other persons,
from other persons, and and not
not on
on information
information toto which
which the
the Plaintiff
Plaintiff can
can verify
verify
under
under oath. Plaintiff further
oath. Plaintiff further objects
objects and declines to
and declines give aa narrative
to give narrative answer
answer to to this
this
interrogatory
interrogatorybecause
becausethe the request
request asks for information
asks for information that is available
that is available from
from
Defendants and
Defendants and Defendants'
Defendants’ business
business records,
records, and said Defendants
and said Defendants cancan obtain
obtain such
such
information
information from
from their
their own
own intracorporate
intracorporateemails,
emails,voice
voiceand
and test
test messages,
messages, and and this
this
was
was aa routine
routine matter
matter of of conducting
conducting business. Subject to
business. Subject to and
and without
without waiving
waiving thethe
foregoing objections,
foregoing objections, Plaintiff
Plaintiff would
would state
state objective
objective of
of conspiracy
conspiracy was retaliation.
was retaliation.
INTERROGATORY NO. 10:
Describe Plaintiff's
Describe Plaintiff’s efforts
effortsand
and her methodology used
her methodology used to identify and
to identify locate any
and locate any
electronic
electronic documents
documents in in her
her possession,
possession, custody,
custody, or
or control,
control, including
including but
but not
not limited
limited
to emails
to emails stored
stored ininher hermommiesawitch@yahoo.com
mommiesawitch@yahoo.com email email account
account andand text
text
messages, responsive to
messages, responsive to Defendant's
Defendant’s Requests
Requests for
for Production.
Production.
ANSWER:Plaintiff
ANSWER: Plaintiffobjects
objectsasasthis
thisrequest
requestisis duplicative.
duplicative. Plaintiff
Plaintiff objects
objects and
and declines
declines
to give
to give aa narrative
narrative answer
answer to to this
this Interrogatory.
Interrogatory. Subject
Subject toto and
and without
without waiving
waiving the
the
foregoing objection,
foregoing objection, Plaintiff
Plaintiff searched
searched for for pdonbavand@foodmps.com”,
pdonbavand@foodmps.com",
“allenjones@foodmps.com”,ajones@foodmps.com "alien
"allenjones@foodmps.com",ajones@foodmps.com “allen jones"
jones” then
then printed
printed same.
same.
Text messages are
Text messages are inin the
the possession
possession of of Defendants.
Defendants.
INTERROGATORY NO. 11:
Identify
Identify all search terms
all search terms used
used by byPlaintiff
Plaintiff ininidentifying
identifying andand locating
locating documents
documents
maintained
maintainedinin any any of of her herpersonal
personalemail emailaccounts,
accounts, including
including thethe
mommiesawitch@yahoo.com
mommiesawitch@yahoo.com account, account, andand responsive
responsive to to Defendant's
Defendant’s Requests
Requests forfor
Production.
Production.
ANSWER:Plaintiff
ANSWER: Plaintiff objects
objects asas this
this request
request isis duplicative.
duplicative. Plaintiff
Plaintiff objects
objects and
and declines
declines
to give
to give aa narrative
narrative answer
answer to to this
this Interrogatory.
Interrogatory. Subject
Subject to to and
and without
without waiving
waiving the
the
foregoing objection, Plaintiff searched for
foregoing objection, Plaintiff searched for pdonbavand@foodmps.com", pdonbavand@foodmps.com”,
“allenjones@foodmps.com”,ajones@foodmps.com "alien
"allenjones@foodmps.com",ajones@foodmps.com “allen jones"
jones” then
then printed
printed same.
same.
Text messages are
Text messages are inin the
the possession
possession of of Defendants.
Defendants.
INTERROGATORY NO. 12:
Identify
Identify the
the last
last date on which
date on which Plaintiff
Plaintiff deleted
deleted any
any emails,
emails, text
text messages,
messages, oror other
other
electronically
electronically stored
stored data in her
data in her possession,
possession, custody,
custody, or
or control,
control, including
including but
but not
not
limited to emails
limited to emails stored
stored in
inher
hermommiesawitch@yahoo.com
mommiesawitch@yahoo.com email email account,
account, and
and
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
describe in
describe in detail
detail steps
steps taken
taken byby Plaintiff
Plaintiff to
to ensure documents, data,
ensure documents, data, and
and information
information
responsive
responsive toto Defendant’s Requests for
Defendant's Requests for Production
Production were
were notnot deleted
deleted or
or lost
lost during
during
this process.
this process.
ANSWER: Objection
ANSWER: Objection as as this
this request
request isis duplicative.
duplicative. Plaintiff
Plaintiff further
further objects
objects asas this
this
request
request calls
calls for
for answer
answer that
thatisisnot
notin
inevidence. Subjectto
evidence. Subject toand
andwithout
without waiving
waiving thethe
foregoing objection,
foregoing objection,TextTextmessages
messagesrelevant
relevanttoto this
this suit
suit are
are inin the
the possession
possession of of
Defendants. Plaintiff
Defendants. Plaintiff has
has not
not deleted
deleted emails
emails or
or other
other electronically
electronically stored
stored data
data in her
in her
possession, custody, or
possession, custody, or control,
control, and relevant to
and relevant to this
this suit.
suit.
INTERROGATORY NO. 13:
Identify
Identify the
the email
email accounts
accounts you
you have
have had and/or currently
had and/or currently have,
have, whether
whether created
created byby
you or
you or for
for your
your use,
use, since
since November
November 13, 13, 2012. Youranswer
2012. Your answershould
should include
include the
the full
full
email address, the
email address, date the
the date the account
account was
was established,
established, andand anan indication
indication as to
as to
whether
whether you you have sent and/or
have sent and/or received
received any
any emails
emails from
from such
such account(s)
account(s) related
related to
to
your employment
your employment with with Defendants
Defendants or or your
your claims
claims against
against Defendants
Defendants in in this
this lawsuit.
lawsuit.
ANSWER: Plaintiff
ANSWER: Plaintiff objects
objects to
to the
the duplicative
duplicative nature
nature of
of this
this request. Please refer
request. Please refer to
to
Plaintiff’s Objections
Plaintiff's Objectionsand andResponses
ResponsestotoDefendant
DefendantALLALLJONES,
JONES, LLC’s
LLC's First
First Set of
Set of
Interrogatories,
Interrogatories, Interrogatory
InterrogatoryNo. No. 17,
17, and
and Defendant FMP’s, First
Defendant FMP's, First Set
Set of
of Interrogatories,
Interrogatories,
Interrogatory
Interrogatory No.
No. 21.
21.
6
6
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A CF Affidavit
B
Affidavit
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff
V.
150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, LLC, §
D/B/A FOOD MANAGEMENT
PARTNERS, LLC,
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, INDIVIDUALLY §
Defendants § BEXAR COUNTY, TEXAS
VERIFICATION
STATE OF TEXAS
COUNTY OF BEXAR
BEFORE ME, the undersigned authority, on this day personally appeared
CEARTH FAIRE, known to me through TXDL NO *****898, SSN ***-**-4220 to be the
person whose name is subscribed below and who being by me duly sworn on her oath
deposed and said that She has read the foregoing and that the statements contained
therein are within her personal knowledge and are true and correct
CEARTH AIRE
SWORN and SUBSCRIBED to before me on this 3 '•E: day ofilAtthi 2015
43.V.1,*
Vl
RAMONA.). FLORES
i Notary Public, State of Texas . Pl
i)(1114\14--
•• My Commission Expires Notary Pub is in and fo State of Texas
%1,t3F0 August 16, 2016
My Commission
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
PLAINTIFF’S OBJECTIONS
PLAINTIFF'S OBJECTIONS AND
AND RESPONSES
RESPONSES TO
TO DEFENDANT
DEFENDANT ALLEN
ALLEN J
J JONES’
JONES'
FIRST REQUEST
FIRST REQUEST FOR
FOR PRODUCTION
PRODUCTION
GENERAL OBJECTIONS
GENERAL OBJECTIONS
PLAINTIFF OBJECTS
PLAINTIFF OBJECTS BASED
BASED ON
ON TRCP
TRCP 193.1,
193.1, PLAINTIFF
PLAINTIFF IS
IS NOT
NOT REQUIRED
REQUIRED
TO
TO PRODUCE DOCUMENTS EXCLUSIVELY
PRODUCE DOCUMENTS EXCLUSIVELY IN
IN THE
THE CONTROL
CONTROL AND
AND
POSSESSION OF
POSSESSION OF DEFENDANTS.
DEFENDANTS.
1.
1 W-2 forms
W-2 forms or
or 1099
1099 forms
forms that
that you
you have
have filed
filed or
or received
received from
from January
January 1,1, 2010 to
2010 to
the present.
the present,
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectstotothe
therequest
requestforfordocuments
documents unrelated
unrelated to to her
her
employment with
employment with Defendants
Defendants andand the subject matter
the subject matter of
of this
this suit. Plaintiff further
suit. Plaintiff further
objects, as
objects, the best
as the best documents
documents are are in
in the
thepossession,
possession, custody
custody and
and control
control ofof
Defendants.
Defendants. Defendants have
Defendants withheld such
have withheld such documents
documents from from Plaintiff.
Plaintiff.
Defendants were
Defendants were sent
sent aa Retention
Retention Notice
Noticeon onDecember
December5,5,2014. Defendants are
2014. Defendants are
in violation
in violation of said notices,
of said notices, and
and Defendants
Defendants are are guilty
guilty of
of spoliation
spoliation of
of relevant
relevant
documents.
documents.
2.
2. Resumes that
Resumes that you
you have
have prepared
prepared since
since January
January 1,
1, 2010 to the
2010 to the present.
present,
RESPONSE: Plaintiff
RESPONSE: Plaintiff objects
objects to
to the
the request
request for
for documents
documents unrelated
unrelated to her
to her
employment with
employment with Defendants
Defendants andand the
the subject
subject matter
matter of
of this
this suit. Subject to
suit. Subject to and
and
without waiving
without waiving the
the foregoing
foregoingobjection,
objection,please
pleasesee
see Defendants’
Defendants' Bates
Bates DEF-CJ-
DEF-CJ-
00076/78 and Faire0001-02.
00076/78 and Faire0001-02.
3.
3. Your personal
Your personal diaries,
diaries, journals,
journals, calendars,
calendars, and/or
and/or notes
notes created
created by
by you
you on or
on or
after November
after November 13, 2012, that
13, 2012, that discuss
discuss or
or reference
reference the
the facts
facts underlying
underlying any of
any of
your claims
your claims in
in this
this lawsuit. This request
lawsuit. This request is
is not
not seeking
seeking any
any documents
documents protected
protected
from discovery
from discovery by
by the attorney-client privilege.
the attorney-client privilege.
RESPONSE:
RESPONSE: Objection,
Objection, Plaintiff
Plaintiff cannot
cannot properly
properly respond,
respond, as the requested
as the requested
items were last in the possession of Defendant Allen Jones, in his personal safe,
items were last in the possession of Defendant Allen Jones, in his personal safe,
and further,
and further, have
have been withheld from
been withheld from Plaintiff
Plaintiffby
byDefendants.
Defendants.See SeeTRCP
TRCP 193.1.
193.1.
Further,
Further, Defendants
Defendants havehave withheld
withheld such
suchdocuments
documentsfrom fromPlaintiff. Defendants
Plaintiff. Defendants
were sent
were sent a Retention Notice
a Retention Notice on
on December
December 5, 5, 2014. Defendants are
2014. Defendants areininviolation
violation
of said
of said notices,
notices, and
and Defendants
Defendants are
are guilty
guilty of
of spoliation
spoliation of
of relevant
relevant documents.
documents.
Plaintiff will
Plaintiff seek appropriate
will seek appropriate court
court intervention
intervention including,
including, but
but not limited to
not limited to
forensic examination
forensic examination of of equipment
equipment and
and devices
devices ofof Defendants.
Defendants.
4.
4. Maps, charts,
Maps, charts, tables,
tables, diagrams,
diagrams, and chronologies created
and chronologies createdbyby you
you on or after
on or after
November 13,
November 13, 2012,
2012,that
thatreference
referencethe
thefacts
factsunderlying
underlying any
any of
of your
your claims
claims in
in this
this
lawsuit. This
lawsuit. Thisrequest
request isis not
not seeking
seeking any
anydocuments
documents protected
protected from
from discovery
discovery by
by
the attorney-client
the attorney-client privilege.
privilege,
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
RESPONSE: Objection,
RESPONSE: Objection,Plaintiff
Plaintiff cannot
cannot properly
properly respond,
respond, as the requested
as the requested
items were
items were last
last in
in the
the possession
possession ofof Defendant
Defendant Allen
Allen Jones,
Jones, in his personal
in his personal safe,
safe,
and further,
and further, have
have been
been withheld
withheld from
from Plaintiff
Plaintiff by
by Defendants.
Defendants. SeeSee TRCP
TRCP 193.1.
193.1.
Further, Defendants
Further, Defendants have have withheld
withheldsuchsuchdocuments
documentsfrom fromPlaintiff. Defendants
Plaintiff. Defendants
were sent
were sent aa Retention
Retention Notice
Notice on
on December
December 5, 5, 2014. Defendants are
2014. Defendants are in
in violation
violation
of said
of said notices,
notices, and
and Defendants
Defendants areare guilty
guilty of
of spoliation
spoliation of
of relevant
relevant documents.
documents.
Plaintiff will
Plaintiff will seek
seek appropriate
appropriate court
court intervention
intervention including,
including, but
but not limited to
not limited to
forensic examination
forensic examination of of equipment
equipment and
and devices
devices of Defendants.
of Defendants.
5.
5. Videotapes, audiotapes,
Videotapes, audiotapes, and photographs relating
and photographs relating to your allegations
to your allegations against
against
Defendants or
Defendants or the
the facts
facts underlying
underlyingany
anyofofyour
yourclaims
claimsinin this
this lawsuit. This
lawsuit. This
Request includes
Request includes all
all duplicate
duplicate copies
copies you
you have
have in your possession,
in your possession, including
including any
any
copies of
copies of audio
audio recordings.
recordings,
RESPONSE: Objection
RESPONSE: Objection as the requested
as the requested items
items were
were last
last in the possession
in the possession of of
Defendants, and
Defendants, only limited
and only limited "responsive"
“responsive” documents
documents were were "recovered"
“recovered” by by
Defendants in
Defendants in response
response to to my
my proper
properdiscovery
discoveryrequests. Plaintiff objects
requests. Plaintiff objects toto this
this
request in
request in that it assumes
that it assumes such
such documents
documents are are in
in possession
possession of of Plaintiff. Such
Plaintiff. Such
documents are
documents are inin possession
possessionoo Defendants
Defendantsororother otherthird
thirdparties.
parties. AllAll other
other
“responsive” documents
"responsive" documentsare areinin the possession, custody
the possession, custody and control of
and control of
Defendants, and
Defendants, and have
have been
been withheld
withheld from
from Plaintiff
Plaintiff by
by Defendants. Defendants
Defendants. Defendants
were sent
were sent a a Retention
Retention Notice
Notice onon December
December 5, 5, 2014. Defendants are
2014. Defendants are in
in violation
violation
of said
of said notices,
notices, andand Defendants
Defendants are are guilty
guilty of
of spoliation
spoliation ofof relevant
relevant documents.
documents.
Plaintiff will
Plaintiff will seek
seek appropriate
appropriate court
court intervention
intervention including,
including, butbut not limited to
not limited to
forensic examination of equipment and devices of
forensic examination of equipment and devices of Defendants. Defendants.
6.
6. Written, audiotaped,
Written, audiotaped, or
or videotaped
videotaped statements
statementsthat that you
you have
have taken from any
taken from any
person
person whom
whom you
you believe
believe may
may have
have knowledge
knowledge of of facts relevant to
facts relevant to the claims in
the claims in
your lawsuit.
your lawsuit,
RESPONSE:
RESPONSE: None at
None this time.
at this time. Plaintiff
Plaintiff will
will supplement
supplement asas required
required byby the
the
rules.
rules.
7.
7 Written, audiotaped,
Written, audiotaped, or videotaped statements
or videotaped statements inin which
which you
you allegedly
allegedly complain
complain of
of
unlawful discrimination
unlawful discrimination and/or
and/or retaliation
retaliation during your employment
during your employment with with
Defendant.
Defendant,
RESPONSE: Plaintiff
RESPONSE: Plaintiff objects
objects because
because this
this request
request requires
requires Plaintiff
Plaintiff to
to marshal
marshal
all her
all her evidence
evidence on
on this
this particular
particular issue,
issue, and
and such
such request
requestisisimproper.
improper. Subject to
Subject to
and without
and without waiving
waiving the
the foregoing
foregoing objection,
objection, please
please refer
refer to
to Defendants'
Defendants’ Bates
Bates
DEF-CF000607-000617. Plaintiff
DEF-CF000607-000617. Plaintiff will
will supplement
supplement asas required
required by by the
the rules.
rules.
8
8
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
8.
8. Correspondence, including
Correspondence, including but
but not
not limited
limited to
to emails,
emails, between
between youyou and Defendant
and Defendant
Jones regarding any
Jones regarding any of
of the
the facts
facts underlying
underlying your
your claims
claims inin this
this lawsuit
lawsuit dated
dated after
after
November 13,
November 13, 2012
2012 toto the
the present.
present.
RESPONSE: Objection,
RESPONSE: Objection,as asDefendants
Defendants JonesJones isis in
in possession
possession and and control
control of
of
such emails
such emails between
between him and Plaintiff,
him and Plaintiff, and
and furthers
furthers have
have withheld
withheld same
same from
from
Plaintiff, or
Plaintiff, “redacted” same.
or "redacted" same. See See TRCP
TRCP 193.1.
193.1. Defendants
Defendants were were sent
sent a a
Retention Notice
Retention Notice onon December
December5,5, 2014. Defendants are
2014. Defendants are inin violation
violation of
of said
said
notices, and
notices, and Defendants
Defendants are guilty of
are guilty of spoliation
spoliation of
of relevant
relevant documents.
documents. Plaintiff
Plaintiff
will seek
will seek appropriate
appropriate court
court intervention
intervention including,
including, but but not limited to
not limited to forensic
forensic
examination of
examination of equipment
equipment and and devices
devices of of Defendants. Subject to
Defendants. Subject to and
and without
without
waiving the
waiving the foregoing
foregoing objection,
objection, please
please seesee Faire003-131.
Faire003-131.
9.
9. Correspondence, including
Correspondence, including but
but not
not limited
limited to
to emails,
emails, between
between you
you and Defendant
and Defendant
Donbavand regarding
Donbavand regarding any
any of
of the
the facts
facts underlying
underlying your claims in
your claims in this
this lawsuit
lawsuit dated
dated
after November
after November 13,
13, 2012
2012 to
to the
the present.
present.
RESPONSE:
RESPONSE: Objection,
Objection, as Defendants Jones
as Defendants Jones and Donbavand are
and Donbavand in
are in
possession
possession andand control
control of such emails
of such emails between
between Donbavand
Donbavand and and Plaintiff,
Plaintiff, and
and
further Defendants
further Defendants withheld
withheld same same from Plaintiff, or
from Plaintiff, or "redacted"
“redacted” same.
same.
Defendants were
Defendants were sent
sent aa Retention
Retention Notice
Notice on
on December
December 5, 5, 2014. Defendants are
2014. Defendants are
in violation
in violation of
of said
said notices,
notices, andand Defendants
Defendants are
are guilty
guilty of
of spoliation
spoliation of
of relevant
relevant
documents. Plaintiff
documents. Plaintiff will seek appropriate
will seek appropriate court intervention including,
court intervention including, but not
but not
limited to
limited to forensic
forensic examination
examination of of equipment
equipment and
and devices
devices ofof Defendants. Subject
Defendants. Subject
to and
to and without
without waiving
waiving the
the foregoing
foregoing objection,
objection, please
please see Faire0132-0256.
see Faire0132-0256.
10.
10. Correspondence, including
Correspondence, includingbut
butnot
not limited
limited to
to emails,
emails, between
between you
you and any
and any
employee or
employee agent of
or agent of Defendant
Defendant FMP
FMP regarding
regarding any
any of the facts
of the facts underlying
underlying your
your
claims in
claims in this
this lawsuit
lawsuit dated
dated after
after November
November 13,13, 2012
2012 to
to the
the present.
present.
RESPONSE: Objection,
RESPONSE: Objection,as
asDefendants
Defendants Jones
Jones isis in
in possession
possession andand control
control of
of
such emails
such emails between
between him and Plaintiff,
him and Plaintiff, and
and furthers
furthers have
have withheld
withheld same
same from
from
Plaintiff, or
Plaintiff, “redacted” same.
or "redacted" same. See See TRCP
TRCP 193.1.
193.1. Defendants
Defendants were sent a
were sent a
Retention Notice
Retention Notice on
on December
December5,5, 2014. Defendants are
2014. Defendants in violation
are in violation of
of said
said
notices, and
notices, Defendants are
and Defendants guilty of
are guilty of spoliation
spoliation of
of relevant
relevant documents.
documents. Plaintiff
Plaintiff
will seek
will seek appropriate
appropriate court
court intervention
intervention including,
including, but but not limited to
not limited to forensic
forensic
examination of
examination of equipment
equipmentand and devices
devicesofof Defendants. Please also
Defendants. Please refer to
also refer to
Requests 8
Requests 8 and
and 99 above.
above.
11.
11. Correspondence, including
Correspondence, includingbut
butnot
not limited
limited to
to emails,
emails, between
between you you and any
and any
employee or
employee agent of
or agent of Defendant
Defendant All
All Jones
Jones regarding
regarding any of the
any of the facts
facts underlying
underlying
your claims
your claims in
in this
this lawsuit
lawsuit dated
dated after
after November
November 13,13, 2012
2012 to
to the
the present.
present,
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
RESPONSE: Objection,
RESPONSE: Objection,as asDefendant
Defendant ALL ALL JONES
JONES and and co-defendants
co-defendants are in
are in
possession
possession and and control
control ofof such emails between
such emails between any employee or
any employee agent of
or agent of
Defendants, and
Defendants, and further, See TRCP
further, See TRCP 193.1.
193.1. Further,
Further, Defendants
Defendants havehave withheld
withheld
same from
same from Plaintiff,
Plaintiff, or
or "redacted"
“redacted” same
same to to the
the degree
degree the the"responsive"
”responsive”
documents are
documents are virtually
virtually blank
blank Defendants
Defendants were were sent
sent a Retention Notice
a Retention Notice on
on
December 5,
December 5, 2014. Defendants are
2014. Defendants are in
in violation
violation of
of said
said notices,
notices, and
and Defendants
Defendants
are guilty
are guilty of
of spoliation
spoliation ofof relevant
relevant documents.
documents. Plaintiff
Plaintiff will
will seek
seek appropriate
appropriate court
court
intervention including,
intervention including, but
but not limited to
not limited to forensic
forensic examination
examination of of equipment
equipment and
and
devices of
devices Defendants. Subject
of Defendants. Subject to
to and
and without
without waiving
waiving the
the foregoing
foregoing objection,
objection,
please
please see Requests 8-10
see Requests 8-10 above.
above.
12.
12. Correspondence, including
Correspondence, includingbut
butnot
not limited
limited to
to emails,
emails, between
between youyou and any
and any
individual identified
individual identified in your Responses
in your Responses to to Defendants'
Defendants’ Requests
Requests for
for Disclosure
Disclosure
regarding any
regarding any of the facts
of the facts underlying
underlying your claims in
your claims this lawsuit
in this lawsuit dated
dated after
after
November 13,
November 13, 2012
2012 toto the
the present.
present.
RESPONSE: Objection,
RESPONSE: Objection,as asDefendants
Defendants are are in
in possession
possession andand control
control of
of such
such
emails between
emails between any
any employee
employee or or agent
agent ofof Defendants,
Defendants, andand further, Defendants
further, Defendants
have withheld
have withheld same
same from Plaintiff, or
from Plaintiff, “redacted” same
or "redacted" same to the degree
to the degree thethe
”responsive” documents
"responsive" documentsare arevirtually
virtuallyblank.
blank. .. Defendants
Defendants were
were sent
sent aa Retention
Retention
Notice on
Notice December 5,
on December 5, 2014. Defendants are
2014. Defendants are in
in violation
violation of
of said
said notices,
notices, and
and
Defendants are
Defendants are guilty of spoliation
guilty of spoliation of
of relevant
relevant documents.
documents. Plaintiff
Plaintiff will
will seek
seek
appropriate court
appropriate court intervention
intervention including,
including, but
but not
not limited
limited to
to forensic
forensic examination
examination of of
equipment and
equipment and devices
devices ofof Defendants. Subject to
Defendants. Subject to and
and without
without waiving
waiving the
the
foregoing objection,
foregoing objection, please
please see
see Requests
Requests 8-11
8-11 above.
above.
13.
13. Statements, documents,
Statements, documents, videotapes,
videotapes, and
and audiotapes
audiotapes you
you submitted
submitted to
to the
the EEOC,
EEOC,
Department of
Department Labor, or
of Labor, the TWC-Civil
or the TWC-Civil Rights
Rights Division
Division regarding
regarding any
any of
of the facts
the facts
underlying your
underlying your claims
claims in
in this
this lawsuit.
lawsuit.
RESPONSE: Please
RESPONSE: Pleaserefer
refertotoDefendants'
Defendants’ Bates
Bates DEF-CF000607-000617
DEF-CF000607-000617
14.
14. Statements, documents,
Statements, documents, videotapes,
videotapes, and
and audiotapes
audiotapes you received from
you received from EEOC,
EEOC,
Department of
Department Labor, or
of Labor, the TWC-Civil
or the TWC-Civil Rights
Rights Division
Division regarding
regarding any
any of
of the facts
the facts
underlying your
underlying your claims
claims in
in this
this lawsuit.
lawsuit.
RESPONSE: Please
RESPONSE: Pleaserefer
refertotoDefendants'
Defendants’ Bates
Bates DEF-CF000607-000617
DEF-CF000607-000617
15.
15. Rebuttal and
Rebuttal and impeachment
impeachment evidence
evidence you
you intend
intend on
on introducing
introducing at
at trial
trial that
that is not
is not
otherwise responsive
otherwise responsive to Defendant’s Requests
to Defendant's Requests for
for Production
Production or
or Interrogatories
Interrogatories
propounded
propounded on
on you.
you,
RESPONSE: Plaintiff
RESPONSE: Plaintiff objects
objects as this request
as this request is
is overly
overly broad,
broad, and
and because
because this
this
request requires
request requires Plaintiff
Plaintiff to marshall her
to marshal! evidence on
her evidence this particular
on this particular issue,
issue, and
and
such request
such request is
is improper. Subject to
improper. Subject to and
and without
without waiving
waiving the
the foregoing
foregoing objection,
objection,
10
10
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
None at
None at this
this time.
time. However,
However,discovery
discovery is is inin its
itsearly
earlystages,
stages, ongoing,
ongoing, and
and
Defendants’ have
Defendants' have withheld
withheld and/or
and/or redacted
redacted "responsive"
“responsive” documents.
documents. Defendants
Defendants
were sent
were sent a Retention Notice
a Retention Notice on
on December
December 5, 5, 2014. Defendants are
2014. Defendants areininviolation
violation
of said
of said notices,
notices, andand Defendants
Defendants areare guilty
guilty of
of spoliation
spoliation of of relevant
relevant documents.
documents.
Plaintiff will
Plaintiff seek appropriate
will seek appropriate court
court intervention
intervention including,
including, butbut not limited to
not limited to
forensic examination
forensic examinationofof equipment
equipmentand and devices
devices of of Defendants. Plaintiff will
Defendants. Plaintiff will
supplement once
supplement once she is afforded
she is afforded access
access totoproperly
properly requested
requested responsive
responsive
documents.
documents.
16.
16. Documents submitted
Documents submitted by you in
by you in conjunction
conjunction with
with any
any bankruptcy
bankruptcy petition
petition filed
filed by
by
you since
you since January
January 1,1, 2010.
2010,
RESPONSE:
RESPONSE: Plaintiff objects,
Plaintiff objects, as
as this
this request
request is
is irrelevant,
irrelevant, and
and will
will not
not lead to
lead to
admissible evidence
admissible evidencerelated
relatedtotothe
thesubject
subjectmatter
matterofofthis
thissuit. Subject to
suit. Subject to and
and
without waiving
without waiving the
the foregoing
foregoing objection,
objection, none.
none.
17.
17. Documents taken,
Documents taken, received,
received, kept,
kept, or
or generated
generated by
by aa health
health care
care provider
provider relating
relating to
to
any emotional
any emotional distress
distress or
or mental
mental anguish
anguish you
you claim
claim as
as damages
damages inin this
this lawsuit,
lawsuit.
RESPONSE: Plaintiff
RESPONSE: Plaintiffwill
will supplement.
supplement.
18.
18. Medical records
Medical records supporting
supporting your
your claim
claim that
that you
you suffered
suffered mental
mental anguish
anguish as
as a result
a result
of Defendants’
of conduct and/or
Defendants' conduct and/or omissions
omissions as alleged in
as alleged in this
this lawsuit,
lawsuit.
RESPONSE: Plaintiff
RESPONSE: Plaintiffwill
will supplement.
supplement.
19.
19. If you are
If you are seeking
seeking attorney's
attorney’s fees,
fees, the
the contract(s)
contract(s) for
for legal
legal services
services between
between you
you
and your
and your counsel
counsel in
in this
this case.
case,
RESPONSE: See
RESPONSE: See Faire
Faire 0257-0260.
0257-0260.
20.
20. If you are
If you are seeking
seeking attorney's
attorney’s fees,
fees, documents,
documents, including
including but
but not
not limited
limited to
to "time
“time
sheets,” bills,
sheets," bills, invoices,
invoices, and/or
and/or receipts,
receipts, that support your
that support claim for
your claim for reasonable
reasonable
attorney’s fees,
attorney's costs, and
fees, costs, and expenses
expenses in in this
this case.
case.
RESPONSE: :: See
RESPONSE: SeeFaire
Faire0261-0264.
0261-0264.Plaintiff
Plaintiffwill
willsupplement.
supplement.
21.
21. Privilege log
Privilege log of all documents
of all documents withheld
withheld from
from production
productiondue
duetoto aa claim
claim of
of
privilege.
privilege,
RESPONSE: None
RESPONSE: None
22.
22. Documents relied
Documents relied upon
upon byby aa consulting
consulting expert
expert whose
whose opinion(s)
opinion(s) and/or
and/or work
work
product
product have
have been reviewed by
been reviewed by or
or relied
relied upon
upon byby aa testifying
testifying expert.
expert.
RESPONSE: None
RESPONSE: None atatthis
this time.
time. Plaintiff
Plaintiffwill
willsupplement
supplement as as required
required by
by the
the
rules.
rules.
23.
23. Statements,
Statements, reports, memoranda, notes,
reports, memoranda, documents, and/or
notes, documents, and/or other
other written
written
instruments and/or
instruments and/or tape recordings sent
tape recordings sent to
to or
or received from any
received from any current
current or
or former
former
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
employee of
employee of Defendant
Defendant relating
relating toto your
your claims
claims in
in this
this lawsuit.
lawsuit.
RESPONSE: None
RESPONSE: None at at this
this time.
time. However,
However, discovery
discovery isis in
in its
its early
early stages,
stages,
ongoing, and
ongoing, and Defendants'
Defendants’ have have withheld
withheld and/or
and/or redacted
redacted "responsive"
“responsive”
documents. Plaintiff
documents. Plaintiff will
will supplement
supplement onceonce she
she is is afforded
afforded access
access to to properly
properly
requested responsive
requested responsive documents
documents TRCP TRCP 193.1
193.1
24.
24. Any documents
Any documents identified
identified in or relied
in or relied upon
upon in
in your
your Responses
Responses to to Defendant's
Defendant’s
Requests for Disclosures.
Requests for Disclosures.
RESPONSE: Objection
RESPONSE: Objectionas as this request requires
this request requires Plaintiff
Plaintiff to marshall her
to marshal! her
evidence on
evidence on this
this particular
particular issue
issue and
and such
such request
request is
is improper.
improper.
25.
25. Any documents
Any documents relied upon or
relied upon or referenced
referenced in
in responding
responding to to Defendant's
Defendant’s
Interrogatories.
Interrogatories,
RESPONSE:
RESPONSE: Objection as
Objection this request
as this request requires
requires Plaintiff
Plaintiff to
to marshal!
marshall her
her
evidence on
evidence on this
this particular
particular issue
issue and
and such
such request
request is
is improper.
improper.
26.
26. Documents created
Documents created by you that
by you that record,
record, summarize,
summarize, document
document or or reference
reference
conversations or
conversations or communications
communicationsbetween betweenyou youand and any
any current
current oror former
former
employee of
employee of Defendants
Defendants about
about your
your claims
claimsinin this
this lawsuit. This Request
lawsuit. This Request does
does
not seek
not seek documents
documents created
created by
by you in order
you in order to
to seek
seek legal
legal advice
advice oror documents
documents
created at
created at the
the behest
behest of
of your
your attorney.
attorney,
RESPONSE: Objection
RESPONSE: Objectionasasthis
thisrequest
requestisisnonsensical.
nonsensical. Subject
Subject to
to and
and without
without
waiving the
waiving the foregoing
foregoing objection,
objection, attorney-work product.
attorney-work product.
27.
27. Correspondence, notes,
Correspondence, notes, memoranda,
memoranda,reports,
reports, documents,
documents,or or other
other written or
written or
recorded material
recorded material taken
taken or received from
or received from Defendants
Defendants by Plaintiff, including
by Plaintiff, including but
but
not limited
not limited to,
to, policies,
policies, procedure
procedure manuals,
manuals, reports,
reports, performance
performance reviews,
reviews,
counselings, and/or
counselings, and/or memoranda.
memoranda,
RESPONSE: See
RESPONSE: See Defendants’
Defendants' Bates
Bates stamped
stamped documents
documents produced
produced and those
and those
withheld, as
withheld, well as
as well as those
those redacted,
redacted, inin response
response toto Plaintiff's
Plaintiff’s discovery
discovery requests.
requests.
Defendants are
Defendants are inin possession,
possession, custody
custody or control of
or control of the
the requested
requested documents,
documents, ifif
any. Plaintiff
any. Plaintiff has
has requested
requested all
all of
of the
theabove
above from
from Defendants,
Defendants, and and most
most has
has
been
been withheld
withheld or
or redacted
redacted
28.
28. Documents discussing
Documents discussing or referencing your
or referencing your work
work performance
performance whilewhile employed
employed
with Defendant from November 13, 2012 to the
with Defendant from November 13, 2012 to the present, present.
RESPONSE: See
RESPONSE: SeeDefendants'
Defendants’BatesBatesstamped
stamped documents
documents produced
produced and
and those
those
withheld, as
withheld, well as
as well as those
those redacted
redacted in in response
response toto Plaintiff's
Plaintiff’s discovery
discovery requests.
requests.
Defendants are
Defendants in possession,
are in possession, custody
custody or control of
or control the requested
of the requested documents,
documents, ifif
any. Plaintiff
any. Plaintiff has
has requested
requested all
all of
of the
the above
above from
from Defendants,
Defendants, and and most has been
most has been
withheld or
withheld redacted
or redacted
29.
29. Evaluations, reprimands,
Evaluations, reprimands, or other documents
or other documents discussing
discussing your
your performance
performance or
or
employment status
employment status with
with Defendants
Defendants since
since November
November 13,
13, 2012.
2012.
12
12
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
RESPONSE: See
RESPONSE: SeeDefendants'
Defendants’Bates
Batesstamped
stamped documents
documents produced
produced and
and those
those
withheld, as
withheld, well as
as well as those
those redacted
redacted in in response
response toto Plaintiff's
Plaintiff’s discovery
discovery requests.
requests.
Defendants are
Defendants in possession,
are in possession, custody
custody or control of
or control the requested
of the requested documents,
documents, ifif
any. Plaintiff
any. Plaintiff has
has requested
requested all
all of
of the
the above
above from
from Defendants,
Defendants, and and most
most has
has been
been
withheld or
withheld redacted
or redacted
30. Documents received
30. Documents received from
from employers
employers toto whom
whom you you have
have inquired
inquired about
about
employment at any time from January 1, 2014 to the present.
employment at any time from January 1, 2014 to the present,
RESPONSE: None
RESPONSE: None
31.
31. Documents received
Documents received from employers that
from employers that have
have made
made you an offer
you an offer of
of employment
employment
at any
at any time
time from
from January
January 1,1, 2014
2014 toto the
the present.
present.
RESPONSE: None
RESPONSE: None atat this
this time.
time. Plaintiff
Plaintiff will
will supplement.
supplement.
32.
32. Documents, including
Documents, including but
but not limited to
not limited to written
written applications
applications for
for employment,
employment,
submitted to
submitted to potential
potential employer(s)
employer(s)atatany any time
time from
from January
January 1,1, 2014
2014 to the
to the
present.
present,
RESPONSE: None,
RESPONSE: None, as
as the
the mechanisms
mechanisms have have been
been online. See response
online. See response to
to
Defendants’ Interrogatory
Defendants' Interrogatory No.6._
No.6.
33.
33. Documents you
Documents you intend
intend to offer as
to offer as an
an exhibit
exhibit during
during any
any proceeding,
proceeding, deposition,
deposition,
hearing, or
hearing, or trial
trial of
of this
this lawsuit.
lawsuit,
RESPONSE: Objection,
RESPONSE: Objection,asas this
this request
request is
is premature,
premature, and
and Plaintiff
Plaintiff is
is not
not required
required
to marshal!
to marshall all
all evidence
evidenceat at this
thistime. Further, Plaintiff
time. Further, Plaintiff has
has requested
requested all all of
of the
the
above from
above from Defendants,
Defendants, and and most has been
most has been withheld
withheld or
or redacted.
redacted. Discovery
Discovery isis
ongoing, Plaintiff
ongoing, Plaintiff will
will supplement
supplement shouldshould Defendants'
Defendants’ ever
ever produce
produce responsive
responsive
documents properly
documents properly requested
requested by by Plaintiff.
Plaintiff.
34.
34. Emails you
Emails you sent
sent toto or
or received
received from
from any
any current
current or
or former
former employee
employee of of Defendant
Defendant
that discuss
that discuss oror evidence
evidence your
your claims
claims in in this
this lawsuit.
lawsuit.
RESPONSE: See
RESPONSE: SeeDefendants'
Defendants’BatesBatesstamped
stampeddocuments
documents produced
produced and
and those
those
withheld, as
withheld, well as
as well as those
those redacted
redacted in in response
response to to Plaintiff's
Plaintiff’s discovery
discovery requests.
requests.
Defendants are
Defendants in possession,
are in possession, custody
custody or control of
or control the requested
of the requested documents,
documents, ifif
any. Plaintiff
any. Plaintiff has
has requested
requested all
all of
of the
the above
above from
from Defendants,
Defendants, and and most
most has
has been
been
withheld or
withheld redacted. Plaintiff
or redacted. Plaintiff will
will supplement
supplement should
should Defendants'
Defendants’ ever
ever produce
produce
responsive documents
responsive documents properly
properly requested
requested by by Plaintiff.
Plaintiff.
35.
35. Documents that
Documents that support
support your
your claim
claim for
for back
back pay
pay as
as alleged
alleged inin your
your Petition.
Petition.
RESPONSE: See
RESPONSE: See Defendants’
Defendants' Bates
Bates stamped
stamped documents
documents produced
produced and those
and those
withheld, as
withheld, well as
as well as those
those redacted
redacted in in response
response toto Plaintiff's
Plaintiff’s discovery
discovery requests.
requests.
Defendants are
Defendants in possession,
are in possession, custody
custody or control of
or control the requested
of the requested documents,
documents, ifif
any. Plaintiff
any. Plaintiff has
has requested
requested all
all of
of the
the above
above from
from Defendants,
Defendants, and and most
most has
has been
been
withheld or
withheld redacted. Plaintiff
or redacted. Plaintiff will
will supplement
supplement should
should Defendants'
Defendants’ ever
ever produce
produce
responsive documents
responsive documents properly
properly requested
requested by by Plaintiff.
Plaintiff.
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
36.
36. Documents that
Documents that support
support your
your claim
claim for
for front
front pay
pay as
as alleged
alleged inin your
your Petition.
Petition.
RESPONSE: See
RESPONSE: See Defendants’
Defendants' Bates
Bates stamped
stamped documents
documents produced
produced and those
and those
withheld, as
withheld, well as
as well as those
those redacted
redacted in in response
response toto Plaintiff's
Plaintiff’s discovery
discovery requests.
requests.
Defendants are
Defendants in possession,
are in possession, custody
custody or control of
or control the requested
of the requested documents,
documents, ifif
any. Plaintiff
any. Plaintiff has
has requested
requested all
all of
of the
the above
above from
from Defendants,
Defendants, and and most has been
most has been
withheld or
withheld redacted. Plaintiff
or redacted. Plaintiff will
will supplement
supplement should
should Defendants'
Defendants’ ever
ever produce
produce
responsive documents
responsive documents properly
properly requested
requested by by Plaintiff.
Plaintiff.
37.
37. Documents that
Documents support your
that support your claim
claim for
for "non-economic"
“non-economic” damages,
damages, as alleged in
as alleged in
your Petition.
your Petition,
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectstoto this
this request
request because
because itit requires
requires Plaintiff
Plaintiff to
to
marshal all
marshal her evidence
all her evidence on on this
this particular
particular issue,
issue, and
and such
such request
request is
is improper.
improper.
Plaintiff will
Plaintiff will supplement
supplement pursuant
pursuant toto the
the rules.
rules.
38.
38. Documents revealing
Documents revealing your
your gross
gross and net income,
and net income, including
including benefits,
benefits, since
since
January
January 1,1, 2010
2010 to
to the
the present.
present,
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectsto
to the
the request
request for documents unrelated
for documents unrelated to her
to her
employment with
employment with Defendants
Defendants and
and the
the subject
subjectmatter
matterofof this
this suit. Plaintiff further
suit. Plaintiff further
objects, as
objects, the best
as the best documents
documents are in the
are in the possession,
possession, custody
custody and control of
and control of
Defendants. Defendants
Defendants. Defendants have
have withheld
withheld and/or
and/or redacted
redacted such
such documents
documents from from
Plaintiff
Plaintiff
39.
39. Documents supporting
Documents supporting your contention that
your contention that "Defendant
“Defendant Jones
Jones promised
promised Plaintiff
Plaintiff
that he
that he would
would buy
buy aa home
home andand transfer
transfer ownership
ownership to” to" her,
her, asas alleged
alleged in
in your
your
Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objects as
as documents
documents responsive
responsive to to this
this request
request are
are in
in the
the
the possession,
the possession, custody
custody and and control
control of of Defendants,
Defendants, including
including email
email
communication between
communication between Jones
Jones and
and other
otherdefendants Defendants have
defendants Defendants have withheld
withheld
such documents
such documents fromfrom Plaintiff. Defendants were
Plaintiff. Defendants were sent
sent aa Retention
Retention Notice
Notice onon
December 5,
December 5, 2014. Defendants are
2014. Defendants are in
in violation
violation of
of said
said notices,
notices, and
and Defendants
Defendants
are guilty
are guilty of
of spoliation
spoliation of
of relevant
relevant documents. Plaintiff will
documents. Plaintiff will seek
seek appropriate
appropriate court
court
intervention including,
intervention including, but
but not limited to
not limited to forensic
forensic examination
examination of of equipment
equipment andand
devices of
devices Defendants.
of Defendants.
40.
40. Documents supporting
Documents supporting your
your contention
contention that “Defendant Jones
that "Defendant Jones intended
intended to hide
to hide
his gift
his gift from
from the
the other
other Defendants
Defendants named
named in this lawsuit,"
in this lawsuit,” as alleged in
as alleged in your
your
Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectsas
as documents
documents responsive
responsive to to this
this request
request are
are in
in the
the
the possession,
the possession, custody
custody and and control
control of of Defendants,
Defendants, including
including email
email
communication between
communication between Jones
Jones and
andother
otherdefendants Defendants have
defendants Defendants have withheld
withheld
such documents
such documents fromfrom Plaintiff. Defendants were
Plaintiff. Defendants were sent
sent aa Retention
Retention Notice
Notice onon
December 5,
December 5, 2014. Defendants are
2014. Defendants are in
in violation
violation ofof said
said notices,
notices, andand Defendants
Defendants
are guilty
are guilty of
of spoliation
spoliation of
of relevant
relevant documents. Plaintiff will
documents. Plaintiff will seek
seek appropriate
appropriate court
court
14
14
EXHIBIT
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EXHIBIT A -- CF
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CF Affidavit
Affidavit
intervention including,
intervention including, but
but not limited to
not limited to forensic
forensic examination
examination of
of equipment
equipment and
and
devices of
devices Defendants.. Please
of Defendants.. Please refer
refertotoDefendants'
Defendants’BATES
BATES DEF-CF-00118,
DEF-CF-00118,
DEF-CF-000448, 00401
DEF-CF-000448, 00401 and
and other
other documents
documents in in the
the possession
possession of
of Defendants.
Defendants.
41.
41. Documents supporting
Documents supporting your
your contention
contention that
that Defendant
Defendant Jones
Jones "authorized
“authorized for [sic]
for [sic]
the necessary
the necessary realreal estate
estate transactions
transactionstoto be be initiated
initiated that
that would
would result
result inin aa
purchase
purchase transaction
transaction and
and an immediate transfer
an immediate transfer ofof ownership,”
ownership," as as alleged
alleged in
in your
your
Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objects asas documents
documents responsive
responsive to to this
this request
request are
are inin the
the
the possession,
the possession, custody
custody and and control
control of of Defendants,
Defendants, including
including email
email
communication between
communication between Jones
Jones andandother
otherdefendants Defendants have
defendants Defendants have withheld
withheld
such documents
such documents fromfrom Plaintiff. Defendants were
Plaintiff. Defendants were sent
sent aa Retention
Retention Notice
Notice on on
December 5,
December 5, 2014. Defendants are
2014. Defendants are in
in violation
violation of
of said
said notices,
notices, and and Defendants
Defendants
are guilty
are guilty of
of spoliation
spoliation ofof relevant
relevant documents. Plaintiff will
documents. Plaintiff will seek
seek appropriate
appropriate court
court
intervention including,
intervention including, but
but not limited to
not limited to forensic
forensic examination
examination of equipment and
of equipment and
devices of
devices Defendants. Please
of Defendants. Please refer
refer to to DEF
DEF_CF-00401-410
CF-00401-410 and and DEF-CJ-
DEF-CJ-
00085/86, DEF-CF-00118-00152
00085/86, DEF-CF-00118-00152and andother
other documents
documentsinin the possession of
the possession of
Defendants.
Defendants.
42.
42. Documents evidencing
Documents evidencing anyany Defendant’s alleged intent
Defendant's alleged intent to gift the
to gift the property
property located
located
at 8647
at 8647 Timber
Timber Place,
Place, San
San Antonio,
Antonio, Texas
Texas 78250
78250 to to Plaintiff.
Plaintiff.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objects as
as documents
documents responsive
responsive to to this
this request
request are
are in
in the
the
the possession,
the possession, custody
custody and and control
control of of Defendants,
Defendants, including
including email
email
communication between
communication between Jones
Jones and
andother
otherdefendants Defendants have
defendants Defendants have withheld
withheld
such documents
such documents from from Plaintiff. Defendants were
Plaintiff. Defendants were sent
sent aa Retention
Retention Notice
Notice onon
December 5,
December 5, 2014. Defendants are
2014. Defendants are in
in violation
violation ofof said
said notices,
notices, andand Defendants
Defendants
are guilty
are guilty of
of spoliation
spoliation ofof relevant
relevant documents. Plaintiff will
documents. Plaintiff will seek
seek appropriate
appropriate court
court
intervention including, but not limited to forensic examination of
intervention including, but not limited to forensic examination of equipment and equipment and
devices of
devices of Defendants.
Defendants. Please
Please refer
refer totoDEF_CF-00401-410
DEF_CF-00401-410 and and DEF-CJ-
DEF-CJ-
00085/86, DEF-
00085/86, DEF- CJ-00085/86,
CJ-00085/86, DEF-CF-00118-00152
DEF-CF-00118-00152 and and other
other documents
documents inin the
the
possession
possession of of Defendants.
Defendants.
43.
43. Documents that,
Documents that, ifif executed,
executed, would
would transfer
transfer ownership
ownership of of the property located
the property located at
at
8647
8647 Timber
Timber Place,
Place, San San Antonio,
Antonio, Texas
Texas 78250
78250 to to Plaintiff.
Plaintiff.
RESPONSE: Please
RESPONSE: Pleaserefer refer to
to the
the Pleadings
Pleadings andand See
See Defendants’
Defendants' BatesBates stamped
stamped
documents produced and those withheld, as well as those
documents produced and those withheld, as well as those redacted in response redacted in response
to Plaintiff's
to Plaintiff’s discovery
discovery requests.
requests. Defendants
Defendants areare in
in possession,
possession, custody
custody or or control
control
of the
of the requested
requested documents,
documents, ifif any. any. Plaintiff
Plaintiff has requested all
has requested all of the above
of the above from
from
Defendants, and
Defendants, and mostmost has
has been
been withheld
withheld oror redacted. Plaintiff will
redacted. Plaintiff will supplement
supplement
should Defendants'
should Defendants’ ever ever produce
produce responsive
responsive documents
documents properly
properly requested
requested by by
Plaintiff.
Plaintiff.
44.
44. Documents evidencing
Documents evidencing Plaintiff’s “moving expenses.
Plaintiff's "moving expenses.
RESPONSE: "Plaintiff
RESPONSE: ”Plaintiff objects
objects because this request
because this request requires
requires Plaintiff
Plaintiff to
to marshal
marshal all
all
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
her evidence
her evidence on
on this
this particular
particular issue,
issue, and
and such
such request
request isis improper. Subject to
improper. Subject to and
and
without waiving
without waiving the
the foregoing
foregoing objection,
objection, Plaintiff
Plaintiff will
will supplement
supplement when
when Defendants
Defendants
properly
properly and completely respond
and completely respond to Plaintiff’s request
to Plaintiff's request forfor documents
documents under
under the
the
possession,
possession, custody
custody and
and control
control of
of defendants.
defendants. SeeSee TRCP
TRCP 193.1.
193.1.
45.
45. Documents evidencing
Documents evidencing Plaintiff’s “expenses in
Plaintiff's "expenses in making
making repairs
repairs to the residence
to the residence to
to
make itit habitable.
make habitable.
RESPONSE: ”" Please
RESPONSE: Please see
see Faire0265-0272
Faire0265-0272 and objections and
and objections and responses
responses to
to
Request 8
Request 8 and
and 9
9 above.
above.
46.
46. A copy
A copy of
of the
the "inspection
“inspection report”
report" identified
identified in
in Paragraph
Paragraph 13
13 of
of your
your Petition.
Petition,
RESPONSE: See
RESPONSE: SeeDefendants’
Defendants' DEF-CF-00119-00144.
DEF-CF-00119-00144.
47.
47. A copy
A copy of
of the
the "one-month
“one-month lease”
lease" identified
identified in
in Paragraph
Paragraph 13
13 of
of your
your Petition.
Petition,
RESPONSE: Please
RESPONSE: Please refer
refer to
to BATES
BATES DEF-CJ-00085-00086.
DEF-CJ-00085-00086.
48.
48. Documents supporting
Documents supporting your
your contention
contention thatthat “Plaintiff
"Plaintiff had
had clear
clear title
title to her 2005
to her 2005
Mini Cooper,"
Mini Cooper,” as as alleged
alleged in
in your
your Petition.
Petition.
RESPONSE: Please
RESPONSE: Pleaserefer
refer to
to the
the Pleadings
Pleadings andand See
See Defendants’
Defendants' Bates
Bates stamped
stamped
documents produced
documents produced and
and those
those withheld,
withheld, asas well
well as those redacted
as those redacted in in response
response
to Plaintiff's
to Plaintiff’s discovery
discovery requests.
requests. Defendants
Defendants are are in
in possession,
possession, custody
custody or or control
control
of the
of the requested
requested documents,
documents, ifif any.
any. Plaintiff
Plaintiff has requested all
has requested all of the above
of the above from
from
Defendants, and
Defendants, and most
most has
has been
been withheld
withheld or or redacted. Plaintiff will
redacted. Plaintiff will supplement
supplement
should Defendants'
should Defendants’ produce
produce responsive
responsive documents
documents properly
properly requested
requested by by
Plaintiff. DEF-CF-00514
Plaintiff. Please also
DEF-CF-00514 Please also see
see Faire0273-279.
Faire0273-279.
49.
49. A copy
A copy of
of the
the "payment
“payment plan"
plan” identified
identified in
in Paragraph
Paragraph 15 15 of
of your
your Petition.
Petition.
RESPONSE: Please
RESPONSE: Pleaserefer
refer to
to the
the Pleadings
Pleadings andand See
See Defendants’
Defendants' Bates
Bates stamped
stamped
documents produced
documents produced and
and those
those withheld,
withheld, asas well
well as those redacted
as those redacted in in response
response
to Plaintiff's
to Plaintiff’s discovery
discovery requests.
requests. Defendants
Defendants areare in
in possession,
possession, custody
custody or or control
control
of the
of the requested
requested documents,
documents, ifif any.
any. Plaintiff
Plaintiff has requested all
has requested all of the above
of the above from
from
Defendants, and
Defendants, and most
most has
has been
been withheld
withheld oror redacted. Plaintiff will
redacted. Plaintiff will supplement
supplement
should Defendants'
should Defendants’ ever
ever produce
produce responsive
responsive documents
documents properly
properly requested
requested by by
Plaintiff.
Plaintiff.
50.
50. Documents supporting
Documents supporting your
your contention
contention that “immediately before
that "immediately before the firing, [you
the firing, [you
had] been
had] been given
given a
a raise
raise in
in pay
pay and
and additional
additional duties,”
duties," as
as alleged
alleged in
in your
your Petition.
Petition,
RESPONSE: See
RESPONSE: See DEF-CJ-00065.
DEF-CJ-00065.
51.
51. Documents supporting
Documents supportingyouryour contention
contentionthat that youyou were asked to
were asked to "perform
“perform
employment duties
employment duties that
that were
were not in furtherance
not in furtherance of of the
the corporate
corporate business,"
business,” asas
alleged in
alleged in your
your Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectsto
tothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit requires
requires Plaintiff
Plaintiff to
to marshal
marshal all
all her
her evidence
evidence on
on this
this
16
16
EXHIBIT
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EXHIBIT A -- CF
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CF Affidavit
Affidavit
particular
particular issue,
issue, and
and such
such request
request is
is improper. Subject to
improper. Subject to and
and without
without waiving
waiving the
the
foregoing objection,
foregoing objection, please
pleaserefer
referto
to2013-CI-04328
2013-CI-04328and
and2013-C1-11046.
2013-CI-11046.
52.
52. Documents supporting
Documents supporting youryour contention
contentionthatthat “Donbavand
"Donbavand… ... was
was aware
aware of the
of the
employment violations
employment violations …,” as alleged
...," as alleged inin your
your Petition.
Petition.
RESPONSE: See
RESPONSE: See Defendants’
Defendants' BatesBates stamped
stamped documents
documents produced
produced and those
and those
withheld, as
withheld, well as
as well as those
those redacted
redacted in in response
response toto Plaintiff's
Plaintiff’s discovery
discovery requests.
requests.
Defendants are
Defendants in possession,
are in possession, custody
custody or control of
or control the requested
of the requested documents,
documents, ifif
any. Plaintiff
any. Plaintiff has
has requested
requested all all of
of the
the above
above from Defendants, and
from Defendants, most has
and most has been
been
withheld or
withheld redacted. Plaintiff
or redacted. Plaintiffwill
willsupplement
supplement should
should Defendants'
Defendants’ produce
produce
responsive documents
responsive documents properly
properly requested
requested byby Plaintiff TRCP 193.1.
Plaintiff TRCP 193.1.
53.
53. Documents supporting
Documents supporting your contention that
your contention that Defendants
Defendants have have "circulat[ed]
“circulat[ed]
malicious rumors
malicious rumors about
about the Plaintiff,” as
the Plaintiff," as alleged
alleged inin your
your Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectsto
tothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit requires
requires Plaintiff
Plaintiff to
to marshal
marshal allall her
her evidence
evidence onon this
this
particular issue, and such request is improper. Subject to and without
particular issue, and such request is improper. Subject to and without waiving the waiving the
foregoing objection.
foregoing See DEF-CJ-00064,
objection. See DEF-CJ-00064, DEF-CJ-000111-15,
DEF-CJ-000111-15, DEF-CF-00456,
DEF-CF-00456,
00463 Plaintiff will
00463 Plaintiff will supplement
supplement when when Defendants
Defendants properly
properly and and completely
completely
respond to
respond Plaintiff’s request
to Plaintiff's request for
for documents
documents under
under the
the possession,
possession, custody
custody and
and
control of
control of defendants.
defendants. See See TRCP
TRCP 193.1.
193.1.
54.
54. The "written
The “written agreement"
agreement” Defendant
Defendant Jones Jones allegedly
allegedly promised
promised to execute at
to execute at
closing, as
closing, as alleged
alleged in
in Paragraph
Paragraph 22 22 of
of your
your Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectstotothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit requires
requires Plaintiff
Plaintiff to
to marshal
marshal all all her
her evidence
evidence on
on this
this
particular
particular issue,
issue, and
and such
such request
request is is improper. Subject to
improper. Subject to and
and without
without waiving
waiving the
the
foregoing objection,
foregoing objection, Plaintiff
Plaintiff will supplement when
will supplement when Defendants
Defendants properly
properly and
and
completely respond
completely respond to Plaintiff’s request
to Plaintiff's request forfor documents
documents under under thethe possession,
possession,
custody and
custody and control
control of
of defendants.
defendants. See See TRCP
TRCP 193.1.
193.1.
55.
55. Any documents
Any documents that that existed
existed atat the time of
the time of closing
closing and
and would
would "giv[e
“giv[e you] full title
you] full title
and interest
and interest toto the
the home,"
home,” asas alleged
alleged in in your
your Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectstotothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit requires
requires Plaintiff
Plaintiff to
to marshal
marshal all all her
her evidence
evidence onon this
this
particular
particular issue,
issue, and
and such
such request
request is is improper. Subject to
improper. Subject to and
and without
without waiving
waiving the
the
foregoing objection, Subject to and without waiving the foregoing objection,
foregoing objection, Subject to and without waiving the foregoing objection, Plaintiff Plaintiff
will supplement
will supplement when when Defendants
Defendants properly
properly and completely respond
and completely respond to Plaintiff’s
to Plaintiff's
request for
request documents under
for documents under the possession, custody
the possession, custody and
and control
control ofof defendants.
defendants.
See TRCP
See TRCP 193.1.
193.1.
56.
56. Documents supporting
Documents supportingyour your contention
contentionthat Defendants made
that Defendants made “a false
"a false
representation or
representation or concealment
concealmentof of material
material facts concerning the
facts concerning real estate
the real estate
transaction,” as
transaction," as alleged
alleged inin your
your Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectsto
tothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
object to
object to this
this request
request because
because itit seeks
seeks data
data or
or information
information that
that exists
exists in
in electronic
electronic
or magnetic
or magnetic form
form in
in the
the sole
sole control
control of
of Defendants,
Defendants, further
further Plaintiff
Plaintiff objects
objects because
because
this request
this request requires
requires Plaintiff
Plaintiff to marshal all
to marshal her evidence
all her evidence onon this
this particular
particular issue,
issue,
and such
and such request
request is is improper.
improper. Subject
Subject to
toand
andwithout
without waiving
waiving the
the foregoing
foregoing
objection, Plaintiff
objection, Plaintiff will supplement when
will supplement when Defendants
Defendants properly
properly andand completely
completely
respond to
respond Plaintiff’s request
to Plaintiff's request for
for documents
documents under
under thethe possession,
possession, custody
custody and
and
control of
control of defendants.
defendants. See See TRCP
TRCP 193.1.
193.1.
57.
57. Documents supporting
Documents supporting youryour contention
contention thatthat Defendants
Defendants "made “made representation
representation
with knowledge,
with knowledge, actual
actual oror constructive,
constructive, of of those
those facts,”
facts," as
as alleged
alleged inin your
your Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectstotothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit seeks
seeks data
data oror information
information thatthat exists
exists in
in electronic
electronic
or magnetic
or magnetic form
form in
in the
the sole
sole control
control ofof Defendants,
Defendants, further
further Plaintiff
Plaintiff objects
objects because
because
this request
this request requires
requires Plaintiff
Plaintiff to marshal all
to marshal her evidence
all her evidence on on this
this particular
particular issue,
issue,
and such
and such request
request is is improper.
improper. Subject
Subject to toand
andwithout
without waiving
waiving the
the foregoing
foregoing
objection, Plaintiff
objection, Plaintiff will supplement when
will supplement when Defendants
Defendants properly
properly andand completely
completely
respond to
respond Plaintiff’s request
to Plaintiff's request for
for documents
documents underunder thethe possession,
possession, custody
custody and
and
control of
control of defendants.
defendants. See See TRCP
TRCP 193.1.
193.1.
58.
58. Documents supporting
Documents supporting youryour contention
contention that that you “detrimentally relied
you "detrimentally relied upon the
upon the
misrepresentation,” as
misrepresentation," as alleged
alleged inin your
your Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectstotothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit seeks
seeks datadata or
or information
information that
that exists
exists inin electronic
electronic
or magnetic
or magnetic form
form in
in the
the sole
sole control
control of of Defendants,
Defendants, further
further Plaintiff
Plaintiff objects
objects because
because
this request
this request requires
requires Plaintiff
Plaintiff to marshal all
to marshal her evidence
all her evidence on on this
this particular
particular issue,
issue,
and such
and such request
request is is improper.
improper. Subject
Subject to toand
andwithout
without waiving
waiving the
the foregoing
foregoing
objection, Plaintiff
objection, Plaintiff will supplement when
will supplement when Defendants
Defendants properly
properly andand completely
completely
respond to
respond Plaintiff’s request
to Plaintiff's request for
for documents
documents underunder thethe possession,
possession, custody
custody and
and
control of
control of defendants.
defendants. See See TRCP
TRCP 193.1.
193.1.
59.
59. Documents evidencing
Documents evidencing any any costs
costs oror expenses
expenses incurred
incurred by by you
you based
based upon your
upon your
alleged detrimental
alleged detrimental reliance
reliance upon
upon Defendants’
Defendants' representations.
representations.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectstotothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit seeks
seeks data
data oror information
information that
that exists
exists in
in electronic
electronic
or magnetic
or magnetic form
form in
in the
the sole
sole control
control of
of Defendants,
Defendants, further
further Plaintiff
Plaintiff objects
objects because
because
this request
this request requires
requires Plaintiff
Plaintiff to marshal all
to marshal her evidence
all her evidence on on this
this particular
particular issue,
issue,
and such request is improper. Subject to and without
and such request is improper. Subject to and without waiving the foregoing waiving the foregoing
objection, see
objection, see Faire0265-0272.
Faire0265-0272. Plaintiff will
Plaintiff will supplement
supplement when when Defendants
Defendants
properly
properly and completely respond
and completely respond to Plaintiff’s request
to Plaintiff's request forfor documents
documents underunder the
the
possession,
possession, custody
custody andand control
control ofof defendants.
defendants. See See TRCP
TRCP 193.1.
193.1.
60.
60. Documents, including
Documents, includingbut
but not
not limited
limited to any invoices
to any invoices for
for work
work performed,
performed,
evidencing "valuable
evidencing “valuable improvements”
improvements" you
you contend
contend you
you have
have made
made to
to the property
the property
located at
located at 8647
8647 Timber
Timber Place,
Place, San
San Antonio,
Antonio, Texas
Texas 78250.
78250,
RESPONSE: DEF-CF-496/97
RESPONSE: DEF-CF-496/97 and
and see
see Request
Request 65
65 above.
above.
18
18
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
61.
61. Documents, including
Documents, including but not limited
but not limited toto emails
emails andand correspondence,
correspondence, evidencing
evidencing
any instance
any instance in in which
which Defendant
Defendant Jones
Jones "made
“made sexual
sexual advances
advances toward
toward Plaintiff,"
Plaintiff,”
as alleged
as alleged in
in your
your Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectstotothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit seeks
seeks data
data oror information
information that
that exists
exists in
in electronic
electronic
or magnetic
or magnetic form
form in
in the
the sole
sole control
control of
of Defendants,
Defendants, further
further Plaintiff
Plaintiff objects
objects because
because
this request
this request requires
requires Plaintiff
Plaintiff to marshal all
to marshal her evidence
all her evidence on on this
this particular
particular issue,
issue,
and such
and such request
request is is improper.
improper. Subject
Subject to toand
andwithout
without waiving
waiving the
the foregoing
foregoing
objection Plaintiff
objection Plaintiff will supplement when
will supplement when Defendants
Defendants properly
properly andand completely
completely
respond to
respond Plaintiff’s request
to Plaintiff's request for
for documents
documents underunder thethe possession,
possession, custody
custody and
and
control of
control of defendants.
defendants. See See TRCP
TRCP 193.1.
193.1.
62.
62. Documents, including
Documents, including but not limited
but not limited toto emails
emails andand correspondence,
correspondence, evidencing
evidencing
any instance
any instance in in which
which you you complained
complained of of Defendant
Defendant Jones's
Jones’s alleged
alleged "sexual
“sexual
advances.
advances,
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectstotothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit seeks
seeks data
data or
or information
information that
that exists
exists inin electronic
electronic
or magnetic
or magnetic form
form in
in the
the sole
sole control
control of
of Defendants,
Defendants, further
further Plaintiff
Plaintiff objects
objects because
because
this request
this request requires
requires Plaintiff
Plaintiff to marshal all
to marshal her evidence
all her evidence on on this
this particular
particular issue,
issue,
and such
and such request
request is is improper.
improper. Subject
Subject totoand
andwithout
without waiving
waiving thethe foregoing
foregoing
objection, Plaintiff
objection, Plaintiff will supplement when
will supplement when Defendants
Defendants properly
properly andand completely
completely
respond to
respond Plaintiff’s request
to Plaintiff's request for
for documents
documents under
under thethe possession,
possession, custody
custody and
and
control of
control of defendants.
defendants. See See TRCP
TRCP 193.1."
193.1.”
63.
63. Documents, including
Documents, including but not limited
but not limited to to emails
emails andand correspondence,
correspondence, evidencing
evidencing
any instance
any instance inin which
which you
you resisted
resisted Defendant
Defendant Jones’s
Jones's alleged
alleged “sexual
"sexual advances.
advances.
RESPONSE: "” Plaintiff
RESPONSE: Plaintiff objects
objects toto this request because
this request because itit is
is overly
overly broad,
broad, and
and
further object
further object to this request
to this request because
because itit seeks
seeks data
data or
or information
information that
that exists
exists inin
electronic or
electronic magnetic form
or magnetic form inin the
the solesole control
control ofofDefendants,
Defendants, further
further Plaintiff
Plaintiff
objects because
objects because this request requires
this request requires Plaintiff
Plaintiff to
to marshal
marshal all
all her evidence on
her evidence this
on this
particular
particular issue,
issue, and
and such
such request
request is is improper. Subject to
improper. Subject to and
and without
without waiving
waiving the
the
foregoing objection,
foregoing objection, Plaintiff
Plaintiff will supplement when
will supplement when Defendants
Defendants properly
properly and
and
completely respond
completely respond to Plaintiff’s request
to Plaintiff's request for for documents
documents under
under the
the possession,
possession,
custody and
custody and control
control of
of defendants.
defendants. See See TRCP
TRCP 193.1.
193.1.
64.
64. Documents supporting
Documents supporting your your contention
contention thatthat Defendant
Defendant JonesJones “made
"made itit clear that
clear that
continued employment
continued employmentas as well
well asas other job benefits
other job benefits were
were conditioned
conditioned on her
on her
acceptance of
acceptance the continued
of the continued sexual
sexual demands
demands of Defendant Jones,"
of Defendant Jones,” as alleged in
as alleged in
your Petition.
your Petition,
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectsto
tothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit seeks
seeks data
data or
or information
information thatthat exists
exists in
in electronic
electronic
or magnetic
or magnetic form
form inin the
the sole
sole control
control ofof Defendants,
Defendants, further
further Plaintiff
Plaintiff objects
objects because
because
this request
this request requires
requires Plaintiff
Plaintiff to marshal all
to marshal her evidence
all her evidence on on this
this particular
particular issue,
issue,
and such
and such request
request is is improper.
improper. Subject
Subject totoand
andwithout
without waiving
waiving the
the foregoing
foregoing
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
objection, Plaintiff
objection, Plaintiff will supplement when
will supplement when Defendants
Defendants properly
properly and
and completely
completely
respond to
respond Plaintiff’s request
to Plaintiff's request for
for documents
documents under
under the
the possession,
possession, custody
custody and
and
control of
control of defendants.
defendants. See See TRCP
TRCP 193.1.
193.1.
65.
65. Documents evidencing
Documents evidencing any any instance
instance in in which
which youyou “refused
"refused to to further submit to
further submit to
Defendant Jones's
Defendant Jones’s inappropriate
inappropriate requests,"
requests,” as as alleged
alleged inin your
your Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectsto tothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit seeks
seeks datadata or
or information
information that
that exists
exists in
in electronic
electronic
or magnetic
or magnetic form
form in
in the
the sole
sole control
control ofof Defendants,
Defendants, further
further Plaintiff
Plaintiff objects
objects because
because
this request
this request requires
requires Plaintiff
Plaintiff to marshal all
to marshal her evidence
all her evidence on on this
this particular
particular issue,
issue,
and such
and such request
request is is improper.
improper. Subject
Subject to toand
andwithout
without waiving
waiving the
the foregoing
foregoing
objection, Plaintiff
objection, Plaintiff will supplement when
will supplement when Defendants
Defendants properly
properly andand completely
completely
respond to
respond Plaintiff’s request
to Plaintiff's request forfor documents
documents underunder thethe possession,
possession, custody
custody and
and
control of
control of defendants.
defendants. See See TRCP
TRCP 193.1.
193.1.
66.
66. Documents evidencing
Documents evidencing anyany act
act committed
committed by by Donbavand
Donbavand in furtherance of
in furtherance the
of the
“conspiracy” alleged in your Petition.
"conspiracy' alleged in your Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectstotothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit seeks
seeks data
data or
or information
information that
that exists
exists in
in electronic
electronic
or magnetic
or magnetic form
form in
in the
the sole
sole control
control of
of Defendants,
Defendants, further
further Plaintiff
Plaintiff objects
objects because
because
this request
this request requires
requires Plaintiff
Plaintiff to marshal all
to marshal her evidence
all her evidence on on this
this particular
particular issue,
issue,
and such
and such request
request is is improper.
improper. Subject
Subject totoand
andwithout
without waiving
waiving the
the foregoing
foregoing
objection, see
objection, see DEF-CF-00477,00478,00479,
DEF-CF-00477,00478,00479, 00482/00483,00482/00483, 00486, 00486, 00492, 00496
00492, 00496
Plaintiff will
Plaintiff will supplement
supplement whenwhen Defendants
Defendants properly
properly andand completely
completely respond
respond to to
Plaintiff’s request
Plaintiff's request for documents under
for documents under the possession, custody
the possession, custody and
and control
control of
of
defendants. See
defendants. SeeTRCP
TRCP193.1_
193.1
67.
67. Documents evidencing
Documents evidencingany anyact act committed
committedby by Kemp
Kemp in furtherance of
in furtherance the
of the
“conspiracy” alleged
"conspiracy' alleged inin your
your Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectstotothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit seeks
seeks data
data or
or information
information that
that exists
exists in
in electronic
electronic
or magnetic
or magnetic formform in
in the
the sole
sole control
control of
of Defendants,
Defendants, further
further Plaintiff
Plaintiff objects
objects because
because
this request
this request requires
requires Plaintiff
Plaintiff to marshal all
to marshal her evidence
all her evidence on on this
this particular
particular issue,
issue,
and such
and such request
request is is improper.
improper. Subject
Subject totoand
andwithout
without waiving
waiving the
the foregoing
foregoing
objection, see
objection, see DEF-CF:
DEF-CF-00486, 00490, 00491,
00486, 00490, 00491, 00496,
00496, 00509,00510,
00509,00510, 0051100511
Plaintiff will
Plaintiff will supplement
supplement whenwhen Defendants
Defendants properly
properly andand completely
completely respond
respond toto
Plaintiff’s request for documents under the possession, custody
Plaintiff's request for documents under the possession, custody and control of and control of
defendants. See
defendants. See TRCP
TRCP 193.1
193.1
68.
68. Documents evidencing
Documents evidencing your “payment of
your "payment consideration” for
of consideration" the property
for the property located
located
at 8647
at 8647 Timber
Timber Place,
Place, San
San Antonio,
Antonio, Texas
Texas 78250,
78250, asas alleged
alleged in in your
your Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffobjects
objectsto
tothis
this request
request because
because itit is
is overly
overly broad,
broad, and
and further
further
object to
object to this
this request
request because
because itit seeks
seeks data
data or
or information
information thatthat exists
exists in
in electronic
electronic
or magnetic
or magnetic form
form in
in the
the sole
sole control
control ofof Defendants,
Defendants, further
further Plaintiff
Plaintiff objects
objects because
because
this request
this request requires
requires Plaintiff
Plaintiff to marshal all
to marshal her evidence
all her evidence on on this
this particular
particular issue,
issue,
20
20
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
and such
and such request
request is improper. Subject
is improper. Subject to
toand
andwithout
without waiving
waiving the
the foregoing
foregoing
objection, Plaintiff
objection, Plaintiff will
will supplement
supplement when
when Defendants
Defendants properly
properly and
and completely
completely
respond to
respond Plaintiff’s request
to Plaintiff's request for
for documents
documents under
under the
the possession,
possession, custody
custody and
and
control of
control of defendants.
defendants. See See TRCP
TRCP 193.1
193.1
69.
69. Documents evidencing
Documents evidencing “valuable
"valuable improvements”
improvements" you
you have
have made
made to the property
to the property
located at
located at 8647
8647 Timber
Timber Place,
Place, San
San Antonio,
Antonio, Texas,
Texas, as
as alleged
alleged in
in your
your Petition.
Petition.
RESPONSE: Plaintiff
RESPONSE: Plaintiffwill
willsupplement
supplement when
when Defendants
Defendants properly
properly and
and completely
completely
respond to
respond Plaintiff’s request
to Plaintiff's request for
for documents
documents under
under the
the possession,
possession, custody
custody and
and
control of
control of defendants.
defendants. See See TRCP
TRCP 193.1
193.1 and
and Request
Request 66
66 above.
above.
70.
70. All emails
All emails sent
sent to
to or
or from
from your
your mommiesawitch@yahoo,com
mommiesawitch@yahoo.com email email account
account from
from
November 13,
November 13, 2012
2012 toto present.
present,
RESPONSE: Objection,
RESPONSE: Objection, as as Defendants
Defendants seek seek information
information protected
protected by the
by the
attorney-client and
attorney-client and work-product
work-product privilege
privilegeininthis
this request. Subject to
request. Subject to an
an without
without
waiving the
waiving the foregoing
foregoing objection,
objection, please
please see
see Plaintiff's
Plaintiff’s Objections
Objections and
and Responses
Responses
to Defendant
to Defendant FMP's
FMP’s Interrogatory
Interrogatory No.
No. 18, 19 and
18, 19 and 20,20, and
and Plaintiff's
Plaintiff’s Objections
Objections
and Responses
and Responses to Defendant FMP’s
to Defendant FMP's Request
Request for for Production
Production No.No. 9,
9, 10,
10, 11,
11, 1212
and 13.
and 13. Further,
Further,SeeSeeDefendants'
Defendants’Bates
Batesstamped
stamped documents
documents produced
produced and and
those withheld,
those withheld, as well as
as well as those
those redacted
redacted in in response
response to to Plaintiff's
Plaintiff’s discovery
discovery
requests. Defendants
requests. Defendants are are in possession, custody
in possession, custody or control of
or control of the
the requested
requested
documents, ifif any.
documents, any. Plaintiff
Plaintiff has
has requested
requested all of the
all of the above
above from
from Defendants,
Defendants, and and
most has
most has been
been withheld
withheld or or redacted. Plaintiff will
redacted. Plaintiff will supplement
supplement should
should Defendants'
Defendants’
produce
produce responsive
responsive documents
documents properly
properly requested
requested by by Plaintiff.
Plaintiff. TRCP
TRCP 193.1
193.1
71.
71. All emails
All emails sent
sent to
to or
or from
from your
your mommiesawitch@yahoo.com
mommiesawitch@yahoo.com email email account
account from
from
November 13,
November 13, 2012
2012 toto present
present regarding
regarding your
your claims
claims in in this
this lawsuit.
lawsuit.
RESPONSE: Objection,
RESPONSE: Objection,as as Defendants
Defendants seek seek information
information protected
protected by the
by the
attorney-client and
attorney-client and work-product
work-product privilege
privilegeininthis
this request. Subject to
request. Subject to an
an without
without
waiving the
waiving the foregoing
foregoing objection,
objection, please
please see
see Plaintiff's
Plaintiff’s Objections
Objections andand Responses
Responses
to Defendant
to Defendant FMP's
FMP’s Interrogatory
Interrogatory No.
No. 18, 19 and
18, 19 and 20,20, and
and Plaintiff's
Plaintiff’s Objections
Objections
and Responses
and Responses to Defendant FMP’s
to Defendant FMP's Request
Request for for Production
Production No. No. 9,9, 10,
10, 11,
11, 1212
and 13.
and 13. Further,
Further,See
SeeDefendants'
Defendants’Bates
Batesstamped
stamped documents
documents produced
produced and and
those withheld,
those withheld, as well as
as well as those
those redacted
redacted in in response
response to to Plaintiff's
Plaintiff’s discovery
discovery
requests. Defendants
requests. Defendants are are in possession, custody
in possession, custody or control of
or control of the
the requested
requested
documents, ifif any.
documents, any. Plaintiff
Plaintiff has
has requested
requested all of the
all of the above
above from
from Defendants,
Defendants, and and
most has been withheld or redacted. Plaintiff will supplement should
most has been withheld or redacted. Plaintiff will supplement should Defendants' Defendants’
produce
produce responsive
responsive documents
documents properly
properly requested
requested by by Plaintiff.
Plaintiff.
72.
72. All emails
All emails sent
sentfrom
fromyour
yourmommiesawitch@yahoo.com
mommiesawitch@yahoo.com email email account
account from
from
November 13,
November 13, 2012
2012 to present to
to present to any
any person
person identified
identified in
in your
your Responses
Responses to to
Defendants’ Requests
Defendants' Requests for
for Disclosure.
Disclosure.
RESPONSE:
RESPONSE: Objection,
Objection, as Defendants seek
as Defendants information protected
seek information protected by the
by the
attorney-client and
attorney-client and work-product
work-product privilege
privilegeininthis
this request. Subject to
request. Subject to an
an without
without
waiving the
waiving the foregoing
foregoing objection,
objection, please
please see
see Plaintiff's
Plaintiff’s Objections
Objections and
and Responses
Responses
EXHIBIT
EXHIBIT
EXHIBIT A -- CF
A B
CF Affidavit
Affidavit
to Defendant
to Defendant FMP's
FMP’s Interrogatory
Interrogatory No.No. 18, 19 and
18, 19 and 20,
20,and
andPlaintiff's
Plaintiff’s Objections
Objections
and Responses
and Responses to to Defendant
Defendant FMP’sFMP's Request
Request for for Production
ProductionNo. No.9,9,10,
10, 11,
11, 12
12
and 13.
and 13. Further,
Further,See
SeeDefendants'
Defendants’Bates
Batesstamped
stampeddocuments
documents produced
produced andand
those withheld,
those withheld, as well as
as well as those
those redacted
redacted ininresponse
response totoPlaintiff's
Plaintiff’s discovery
discovery
requests. Defendants
requests. Defendants areare in in possession,
possession, custody
custody or control of
or control the requested
of the requested
documents, ifif any.
documents, any. Plaintiff
Plaintiff has
has requested
requested all
all of
of the
the above from Defendants,
above from Defendants, andand
most has
most been withheld
has been withheld or
or redacted. Plaintiff will
redacted. Plaintiff will supplement
supplement should
should Defendants’
Defendants'
produce
produce responsive
responsive documents
documents properly
properlyrequested
requestedby byPlaintiff.
Plaintiff.TRCP
TRCP 193.1
193.1
73.
73. AllAll emails
emails received
received at at
youryour mommiesawitch@yahoo.com email
mommiesawitch@yahoo.com email account
account fromfrom
November 13,
November 13, 2012
2012totopresent
presentfrom
from any
anyperson
person identified
identified in
in your
your Responses
Responses to to
Defendants’ Requests
Defendants' Requests forfor Disclosure.
Disclosure.
RESPONSE: Objection,
RESPONSE: Objection, as as Defendants
Defendants seekseek information
information protected
protected by the
by the
attorney-client and
attorney-client and work-product
work-productprivilege
privilegeininthis
thisrequest. Subject to
request. Subject to an
an without
without
waiving the
waiving foregoing objection,
the foregoing objection, please
please see Plaintiff’s Objections
see Plaintiff's Objections andand Responses
Responses
to Defendant
to Defendant FMP's
FMP’s Interrogatory
Interrogatory No.No. 18, 19 and
18, 19 and 20,20,and
andPlaintiff's
Plaintiff’s Objections
Objections
and Responses
and Responses to to Defendant
Defendant FMP’s
FMP's Request
Request for for Production
ProductionNo. No.9,9,10,
10, 11,
11, 12
12
and 13.
and 13. Further,
Further,See
SeeDefendants'
Defendants’Bates
Batesstamped
stampeddocuments
documents produced
produced and and
those withheld,
those withheld, as well as
as well as those
those redacted
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22
22
EXHIBIT C - MOTION TO DISQUALIFY
EXHIBIT C - MOTION TO DISQUALIFY
EXHIBIT C - MOTION TO DISQUALIFY
EXHIBIT C - MOTION TO DISQUALIFY
Appendix 6
FILED
9/8/2015 10:18:23 AM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Bonnie Banks
CAUSE NO. 2014-CI-16674
CEARTH FAIRE, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§
FMP SA MANAGEMENT GROUP, LLC § 150TH JUDICIAL DISTRICT
d/b/a FOOD MANAGEMENT PARTNERS, §
LLC, ALL JONES, LLC, ALLEN J. JONES §
INDIVIDUALLY, PETER DONBAVAND, §
INDIVIDUALLY, AND JASON KEMP, §
INDIVIDUALLY §
Defendants. § BEXAR COUNTY, TEXAS
______________________________________________________________________________
DEFENDANT ALLEN J. JONES’ MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL
______________________________________________________________________________
For his Motion to Disqualify Plaintiff’s Counsel, Defendant Allen J. Jones (Defendant
Jones” or “Jones”) respectfully shows the following:
I. INTRODUCTION
Defendant Jones requests the Court disqualify Plaintiff’s counsel, Olga Brown, from her
continuing representation of Plaintiff Cearth Faire in the above-styled lawsuit. Brown’s
disqualification is necessary and appropriate based on her inappropriate acceptance, review, and
use of Jones’ confidential and privileged documents, which were wrongfully retained by her
client, Faire. Defendant Jones further requests that the Court order the immediate return of his
confidential and privileged documents in the possession of Faire or Brown, and that Faire and
Brown be ordered not to make use of any information contained in these privileged documents. 1
1
On June 8, 2015, Defendant Jones demanded the immediate return of his confidential and privileged
documents. Ex. A, June 8, 2015 Corr. Brown’s response, sent on June 22, 2015, refused to return the privileged
documents or to otherwise take necessary steps to mitigate the harm to Jones. Ex. B, June 22, 2015 Corr.
II. FACTUAL BACKGROUND
1. Plaintiff Cearth Faire is a former employee of Defendants FMP and All Jones.
Ex. C, P’s 5th Am. Pet. ¶ 42. In this capacity, Faire served as a personal assistant to Jones, the
CEO of FMP and a principal of All Jones. Ex. C, P’s 5th Am. Pet. ¶ 42. As Jones’ personal
assistant, Faire was responsible for handling and assisting with various personal and business
matters for Jones. Accordingly, Jones placed substantial trust and responsibility in Faire. Ex. D,
Jones Aff. ¶ 3.
2. Defendant Jones was previously involved in a family law matter, including
divorce and child custody proceedings. In that litigation, Jones’ ex-wife, Tatyana Jones, was
also represented by Ms. Brown. Ex. D, Jones Aff. ¶ 4. These family law matters were ongoing
during the tenure of Faire’s employment with FMP. In her position as Jones’ personal assistant,
Faire played a key role in providing information to and reviewing communications from Jones’
personal legal counsel. Ex. D, Jones Aff. ¶ 5; Ex. E, P’s 4th Am. Pet. ¶ 10. As such, Faire was
considered a member of Jones’ litigation team. Ex. D, Jones Aff. ¶ 5; see also Ex. E, P’s 4th
Am. Pet. ¶ 10 (noting Faire “took care of Defendant Jones’ personal matters, including …
assisting in his defense in a family law matter”). In this capacity, Faire assisted with various
matters under the direction of Jones and his attorneys, including gathering facts, developing
timelines, and providing other input relevant to the ongoing litigation. Ex. D, Jones Aff. ¶ 5.
3. On August 31, 2014, Faire was terminated from her employment with FMP after
she exhibited erratic and threatening behavior during working time. Ex. C, P’s 5th Am. Pet. ¶
47. After her termination, Faire filed suit against FMP, All Jones, and individual Defendants
Jones, Peter Donbavand, and Jason Kemp. In this lawsuit, Faire is now represented by Brown,
who represented Jones’ ex-wife throughout the above-referenced family law proceedings.
2
4. Defendant FMP previously served requests for Production on Faire. In response,
Faire produced nearly 100 pages of Jones’ privileged and confidential communications,
including numerous emails to and from his counsel in the family law matter. 2 Prior to Faire’s
production of these privileged documents, Jones was completely unaware Faire had kept or
retained possession of these documents following her termination of employment. Similarly,
Jones was unaware Faire had disclosed these documents to Brown, counsel for Jones’ ex-wife.
At no point after her termination did Jones authorize Faire to retain possession of his privileged
documents, nor did Jones authorize Faire to disclose these documents to his ex-wife’s counsel,
Ms. Brown.
5. On June 8, 2015, Defendants’ counsel wrote Brown regarding this issue. Ex. A,
June 8, 2015 Corr. This correspondence outlined Faire’s improper possession and disclosure of
Jones’ privileged communications and demanded Faire immediately take steps to avoid further
prejudice to Jones, including:
• The immediate return of all of Jones’ privileged documents and communications in
Faire’s possession;
• That Faire immediately provide an accounting and description of Jones’ information
and documents provided or described to Brown; and
• Brown’s immediate withdrawal from representation of Faire in this litigation. 3
Id. Brown, on behalf of Faire, responded on June 22, 2015, and refused to take any of the steps
requested in Jones’ June 8 correspondence. Ex. B, Corr.
2 Apparently, during the course of her employment, Faire had retained Jones’ privileged and confidential
documents and email in her personal email account, mommiesawitch@yahoo.com. At the termination of her
employment, Faire did not return or destroy these privileged communications. Moreover, Jones does not know
whether Faire and Brown may have possession of other privileged documents not produced in discovery.
3 Although the documents in issue are privileged, Jones will submit copies for an in camera review if the
Court wishes to confirm the privileged nature of the documents.
3
III. ARGUMENT AND AUTHORITIES
A. Brown’s representation of Faire, a former member of Jones’ “Litigation Team,”
warrants Brown’s disqualification.
Courts have recognized that counsel can be disqualified based on inappropriate
communications with a member of the opposing party’s litigation team. In evaluating such
situations, courts presume the litigation team member received confidential information about
the litigation during employment. Moreover, courts have adopted a second, rebuttable
presumption that the litigation team member disclosed confidential information in
communications with counsel for the opposing party. If a party fails to rebut the second
presumption. or if the presumption of shared confidences is conclusive, then counsel must be
disqualified, as a matter of law.
Application of this test is illustrated by various Texas cases. For example, In re RSR
Corp., 405 S.W.3d 265 (Tex. App.—Dallas 2013, orig. proceeding) (pet. pending), plaintiff’s
counsel had inappropriately interacted and communicated with the defendant’s former finance
manager, Sobarz, in a breach of licensing agreement case. As a member of the defendant’s
litigation team, Sobarz had access to the defendant’s privileged and confidential information. Id.
at 268-69. Like Faire, Sobarz copied numerous privileged and confidential documents between
defendant and its counsel. After resigning employment, Sobarz disclosed these documents and
other privileged information to plaintiff’s counsel. Id. at 268-69, 272-73, 274-75.
The court noted that “an attorney’s relationship with a … member of the opposing party’s
litigation team carries the same unacceptably high risk of disclosure of confidential information
as does the hiring by an attorney of a legal assistant who previously performed work for the
opposing party.” 405 S.W.3d at 275, citing In re SAExploration, Inc., No. 14-12-00981-CV,
2012 WL 6017717, at *4 (Tex. App.—Houston [14th Dist.] Dec. 4, 2012, orig. proceeding).
4
Thus, applying the two-part test set forth above, if a party “fails to rebut the presumption that
confidential information was shared by the non-attorney or if the presumption of shared
confidences is conclusive, disqualification is required.” Id. at 273 (emphasis added), citing In
re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 824 (Tex. 2010) (orig. proceeding);
In re Am. Home Prods. Corp., 985 S.W.2d at 76. Thus, given the finance manager’s status as a
member of the defendant’s litigation team, the court of appeals concluded disqualification of
plaintiffs’ counsel was required. Id. at 276.
Similarly, in In re Am. Home Prods. Corp., 985 S.W.2d 68 (Tex. 1998) (orig.
proceeding), Palacios, an individual described as legal assistant/investigator/consultant, was
hired by Wyeth-Ayerst Laboratories Division of American Home Products, one of the
defendants in litigation involving the Norplant contraceptive device, to work “freelance” with the
defendant’s local counsel in the Norplant litigation and at the direction of Wyeth’s counsel. Id.
at 71. Palacios subsequently went to work for plaintiffs’ counsel in the Norplant litigation. Id. at
72. The Texas Supreme Court concluded that, as a non-lawyer employee of the law firm,
Palacios was subject to an irrebuttable presumption that “trial confidences and secrets were
imparted” to her in connection with her prior employment, and a second, rebuttable presumption
that she had shared confidences with her new employer. Id. at 74-76. Thus, applying the two-
part test set forth above, the Supreme Court found disqualification of counsel for plaintiffs
required because the plaintiffs failed to rebut the presumption that the legal assistant shared
confidential information with their counsel. Id. at 71; see In re Bell Helicopter Textron, Inc., 87
S.W.3d 139, 146-47 (Tex. App.—Fort Worth 2002) (orig. proceeding) (applying American
Home to former employee of party working as consultant to opposing party’s retained counsel).
5
Applying this precedent, there is no question Ms. Brown must be disqualified from
continued representation of Faire in this litigation. Faire was Jones’ personal assistant and agent.
Ex. C, P’s 5th Am. Pet. ¶ 42. In this role, Faire admits she was a member of Jones’ litigation
team during his family law litigation proceedings. Ex. E, P’s 4th Am. Pet. ¶ 10; Ex. D, Jones
Aff. ¶ 5. In these roles, Faire was directly involved in the development of Jones’ litigation
strategy, as well as communications to and from his attorneys regarding the implementation of
this strategy. Specifically, Faire (i) was privy to the advice, thoughts, and litigation strategy of
Jones’ attorneys, (ii) undertook various assignments at the direction of Jones’ attorneys with
respect to the litigation, and (iii) was copied on or had access to emails and other confidential
and privileged documents of Jones in connection with the family law proceedings. Ex. D, Jones
Aff. ¶ 5. Indeed, most of the 90 pages of privileged documents Faire provided to Ms. Brown
reflect private communications with Jones’ attorney, including counsel’s impressions regarding
legal strategy and analysis.
In this matter, Ms. Brown accepted representation of Faire despite knowing Faire had
been a member of Jones’ family law litigation team. Moreover, the undisputed evidence in this
matter unambiguously establishes that Faire disclosed Jones’ privileged documents and
communications to Ms. Brown. Further, the evidence shows that Brown has reviewed, retained,
and used confidential and privileged information Faire obtained as a result of her employment as
Jones’ personal assistant and agent and her activities as a member of his litigation team. Ex. B,
Brown Corr.; Ex. G, Faire RFP Resp. Accordingly, the presumption is conclusive that Faire
wrongfully shared Jones’ confidential and privileged information with Ms. Brown.
The evidence also affirmatively forecloses Ms. Brown from claiming ignorance of Faire’s
status as a member of Jones’ litigation team. Indeed, she affirmatively referenced that role in
6
Plaintiff’s various Petitions filed ot date. See, e.g., Ex. F, P’s Original Petition ¶ 10, and Ex. E,
P’s 4th Am. Pet. ¶ 10 (both reciting that Faire was Jones’ personal assistant and assisted in his
defense of family law matter). Moreover, during those family law proceedings, Ms. Brown even
requested Faire’s deposition as an agent of Jones and an adverse witness. Additionally, in now
representing Faire in this current lawsuit, it appears Ms. Brown reviewed the privileged
documents and information in Faire’s possession and has made full use of them and will likely
make full use of them in the family law case. See Ex. A, June 8, 2015 Corr.; Ex. B, June 22,
2015 Corr. Accordingly, under Texas law, disqualification of Brown is required. In re Am.
Home Prods., 985 S.W.2d at 71, 74-77; In re RSR Corp., 405 S.W.3d at 276; see Hornsby, 2013
WL 2093155, at *5-7 (“[w]hen an attorney’s conduct gives the strong appearance of impropriety,
casting doubt upon the integrity of the legal system, the court should act to guard that integrity”).
B. Brown’s actions in reviewing, retaining, and using Jones’ confidential and
privileged documents warrant her disqualification from this case.
As shown above, Brown must be disqualified from her representation of Faire, given her
inappropriate contacts with Faire as a member of Jones’ “litigation team.” However, Brown
should also be disqualified on separate but related grounds, as she has wrongfully come into
possession of Jones’ privileged communications and documents. To that end, the the Texas
Supreme Court has recognized that a lawyer should be disqualified based on her review and
possession of privileged information improperly obtained from an opposing party, even if the
lawyer may not have been involved in obtaining the information. In re Meador, 968 S.W.2d
346, 351 (Tex. 1998). In Meador, the Texas Supreme Court set forth six factors to be considered
by a trial court in determining whether an attorney must be disqualified in such situations:
(1) Whether the attorney knew or should have known that the material was privileged;
(2) The promptness with which the attorney notifies the opposing side that he or she has
received its privileged information;
7
(3) The extent to which the attorney notifies the opposing side that he or she has received
its privileged information;
(4) The significance of the privileged information, i.e., the extent to which its disclosure
may prejudice the movant’s claim or defense, and the extent to which return of the
documents will mitigate that prejudice;
(5) The extent to which movant may be at fault for the unauthorized disclosure;
(6) The extent to which the nonmovant will suffer prejudice from the disqualification of
his or her attorney.
968 S.W.2d at 351-52;
Application of the Meador factors is best illustrated by In re Marketing Investors Corp.,
80 S.W.3d 44 (Tex. App.—Dallas 1998, orig. proceeding). In that case, MacDonald, the former
president of the company, was terminated for cause and subsequently sued by the company
under various contractual and common law theories. Id. at 47. Id. at 46-47. In discovery, the
company learned MacDonald had taken its privileged documents after his termination. Id. at 47.
The company requested MacDonald return the documents he took and agree not to use them. Id.
Unlike Faire in this matter, MacDonald in fact returned the originals, though he kept copies and
refused to agree not to use them. Id. The company moved to disqualify MacDonald’s attorney
from the case; the trial court denied the motion, and the company sought mandamus from the
court of appeals. Applying the six Meador factors, the court of appeals concluded the trial court
improperly refused to disqualify MacDonald’s counsel given that:
• the attorney knew the documents were privileged documents of the company;
• the attorney reviewed the company’s attorney-client privileged documents, despite
knowing their privileged nature;
• the attorney failed to promptly notify the company he had its privileged documents
and instead simply produced them in discovery;
• it was undisputed that the attorney extensively reviewed the documents, had
referenced them in new pleadings, and had shown an intent to use them in the future;
• the attorney refused to return all copies of the documents;
• the issues relating to the privileged documents arose early in the litigation; and
8
• there was no evidence of an inability by MacDonald to employ different counsel, as
the case did not involve novel issues that only a few attorneys were qualified to
handle.
Id. at 51-52; see Maldonado v. New Jersey, 225 F.R.D. 120, 139-42 (D.N.J. 2004) (applying six
Meador factors, as set forth in Richards v. Jain, cited below, and concluding plaintiff’s attorneys
should be disqualified for reviewing and using privileged documents of defendants); Richards v.
Jain, 168 F. Supp. 2d 1195, 1205-09 (W.D. Wash. 2001) (applying six factors adopted from
Meador and concluding that plaintiff’s attorneys should be disqualified for reviewing and failing
to promptly return privileged documents of defendant wrongfully taken by plaintiff, who was
former employee).
Analysis of the Meador factors in the context of this case likewise demonstrates that Ms.
Brown should be disqualified from continuing to represent Faire in this case.
1. Ms. Brown knew or should have known the material was privileged.
As shown above, Ms. Brown has come into possession of and reviewed emails sent to or
from Jones’ attorneys regarding his family law proceedings, in which she represents the
opposing party. Given her status as counsel for Jones’ ex-wife, there can be no question Ms.
Brown knew the documents provided by Faire were privileged. For example, each of the
privileged communications in question was sent to or from Jones’ former counsel, including Mr.
Sam Bashara and representatives of his office. Moreover, Mr. Brown, as an experienced
attorney, should have immediately recognized the contents of the emails and other
correspondence between Jones, his attorneys, and others contained attorney-client privileged
information. Accordingly, this factor weighs in favor of Brown’s disqualification. See In re
Meador, 968 S.W.2d at 353 (attorney should have known after most cursory review that
documents were privileged) see also Maldonado, 225 F.R.D. at 139 (letter from defendants to
their attorney should have placed counsel on notice it was privileged).
9
2. The promptness with which Ms. Brown notified the opposing side that she has its
privileged information.
Quite simply, Ms. Brown never explicitly or implicitly notified Jones’ counsel she was in
possession of Jones’ confidential and privileged information. To the contrary, she simply
produced Jones’ privileged documents during discovery in this lawsuit, while simultaneously
basing Faire’s claims on information allegedly contained in Jones’ confidential and privileged
documents. See Ex. A, June 8, 2015 Corr. of Defendant’s counsel; Ex. B, June 22, 2015 Brown
Corr. Accordingly, this factor weighs in favor of Brown’s disqualification. See In re Meador,
968 S.W.2d at 353 (attorney failed to notify opposing party that he had privileged documents); In
re Marketing Investors, 80 S.W.3d at 51 (counsel failed to notify opposing party he had party’s
privileged documents, but just produced documents in response to defendant’s discovery
requests); see also Maldonado, 225 F.R.D. at 139-40 (same); Richards, 168 F. Supp. 2d at 1206
(same).
3. The extent to which Ms. Brown reviewed and digested the privileged information.
Only Ms. Brown can provide exact testimony regarding the extent to which she has
“reviewed and digested” Jones’ privileged information. However, Ms. Brown’s communications
thus far in this litigation suggest her review of these documents has been extensive. For
example, Ms. Brown has repeatedly insinuated that Faire’s claim are, in large part, premised
upon the content of privileged emails she received or sent while working on Jones’ litigation
team. Similarly, as counsel for Faire, Ms. Brown reviewed and coordinated Faire’s document
production, which itself consists of nearly 100 pages of Jones’ privileged communications.
Accordingly, given the evidence presently available, this factor weighs in favor of Ms. Brown’s
disqualification. See In re Meador, 968 S.W.2d at 353 (attorney appeared to have thoroughly
reviewed privileged materials, as he directly referenced specific portions of documents in
10
pleadings); see also In re Marketing Investors, 80 S.W.3d at 51 (counsel found to have
extensively reviewed privileged documents, based on references in pleadings and intent to use
them in litigation); Richards, 168 F. Supp. 2d at 1206-07 (counsel’s reliance on privileged
communications, based on reference to contents of letter, weighed in favor of disqualification).
4. The significance of the privileged information.
Both the privileged documents and information Faire wrongfully provided to Ms. Brown,
as well as the underlying privileges themselves, belong solely to Jones. Texas Rule of Evidence
503(b) expressly provides that a “client has the privilege to refuse to disclose and to prevent any
other person from disclosing confidential communications made for the purpose of facilitating
the rendition of professional legal services…” TEX. R. EVID. 503(b). The attorney-client
privilege applies to communications between the client and counsel. TEX. R. EVID. 503(a)(2); In
re Monsanto Co., 998 S.W.2d 917, 922 (Tex. App.—Waco 1999, orig. proceeding). Moreover,
as an agent of Jones, Faire lacked the legal status or capacity to waive any privileges attached to
Jones’ privileged communications. West v. Solito, 563 S.W.2d 240, 244 n.2, 245 (Tex. 1978)
(”The attorney-client privilege belongs to the client” and must remain so, unless expressly
waived by the client himself). Accordingly, Faire had neither the right to retain Jones’ privileged
documents nor to disclose those documents to any third parties.
Furthermore, the privileged documents and information go to the heart of Jones’ claims
and defenses in the underlying family law proceedings. By wrongfully obtaining, reviewing, and
digesting Jones’ privileged information, Ms. Brown now has direct knowledge of and insight
into Jones’ legal strategy, analysis, and communications regarding such with his counsel. Unless
she is disqualified from further representation of Faire in this lawsuit, Ms. Brown will gain
additional insights through any future inevitable disclosures of Jones’ attorney-client information
11
and communications in Faire’s possession. Additionally, Defendants will be prejudiced by Ms.
Brown’s continued representation of Faire, as she has also indicated she intends to use Jones’
privileged emails in support of Faire’s claims in this very lawsuit. Disqualification is justified
where a party will suffer significant prejudice as a result of opposing counsel’s possession and
knowledge of that party’s privileged information. See In re Marketing Investors, 80 S.W.3d at
51 (counsel’s stated intent to use privileged documents prejudicial and warranted
disqualification); see also Maldonado, 225 F.R.D. at 140 (disclosure of privileged letter resulted
in substantial prejudice to defendants); Richards, 168 F. Supp. 2d at 1207-08 (privileged emails
deemed significant, and disclosure warranted disqualification, whether related directly to suit or
not). As such, there is simply no question that Ms. Brown’s continued representation of Faire in
this matter will significantly and irreparably prejudice Defendants, thereby warranting her
disqualification.
5. Extent to which movant may be at fault for the unauthorized disclosure of
privileged documents/information.
Ms. Brown’s possession and review of Jones’ privileged documents has occurred through
absolutely no fault or act of Jones. Rather, Ms. Brown obtained Jones’ privileged documents
exclusively through Faire’s wrongful acts in breaching her fiduciary duties to Jones. As his
personal assistant, agent, and member of his litigation team, Jones was legally entitled to assume
Faire would adhere to her legal duties and obligations in protecting his privileged information.
See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 202 (Tex. 2002) (agents owe fiduciary
duty to principal and employee is obligated to act in employer’s best interest); Welex Jet Servs. v.
Owen, 325 S.W.2d 856, 858 (Tex. Civ. App.—Fort Worth 1959, writ ref’d n.r.e.) (“[c]onfidential
information secured by reason of fiduciary relationships may not be used or disclosed to
[employer’s] detriment irrespective of an agreement not to do so”). Accordingly, this factor also
12
weighs in favor of Ms. Brown’s disqualification. See In re Meador, 968 S.W.2d at 352
(plaintiff’s unknown removal of privileged documents weighed in favor of disqualification); In
re Marketing Investors, 80 S.W.3d at 51-52 (privileged documents improperly taken/retained by
terminated president of company); see also Maldonado, 225 F.R.D. at 140-41 (no evidence that
defendants were at fault in plaintiff’s receipt of privileged letter); Richards, 168 F. Supp. 2d at
1208 (no fault in disclosure of privileged emails wrongfully taken from defendant).
6. The extent to which Faire will suffer prejudice if her attorney is disqualified.
The last of the six Meador factors is whether, and to what extent, Faire would be
prejudiced by Ms. Brown’s disqualification. In the unlikely event Faire would suffer any such
prejudice, multiple factors would work to mitigate such harm. For example, this case is at a
relatively early stage of the proceedings, with no depositions having yet been taken, and
dispositive briefing and trial deadlines many months away. Thus, should Faire obtain new
representation, that counsel would have ample time to learn the case and provide competent
representation. Moreover, the overwhelming majority of Faire’s claims have been dismissed,
and her only remaining claim arises under Chapter 21 of the Texas Labor Code. Because Ms.
Brown does not specialize in this type of litigation, Faire would suffer no unique prejudice by
virtue of this disqualification. Accordingly, the minimal risk of prejudice to Faire also weighs in
favor of disqualification. See In re Marketing Investors, 80 S.W.3d at 52 (trial court erred in not
disqualifying counsel, as disqualification arose early in litigation, case was not well-developed,
and no indication that former employee could not obtain alternate counsel).
In determining when to exercise its discretion to disqualify counsel in those cases
involving the loss of the protection of privilege, “the Court should resolve any doubts in favor of
disqualification.” Richards, 168 F. Supp. 2d at 1209. In this case, there are no doubts
13
whatsoever on this issue, as the six Meador factors weigh in favor of Ms. Brown’s
disqualification.
C. Ms. Brown should be disqualified for encouraging and assisting Faire in the breach
of fiduciary duties.
Finally, Ms. Brown should be disqualified from further representation of Faire due to her
apparent encouragement, facilitation, and assistance of Faire’s breach of fiduciary duties owed to
Jones. As Jones’ personal assistant and agent, Faire owes fiduciary duties to Jones. These duties
specifically include the duty of loyalty and utmost good faith, the duty to act in the employer’s
best interest, and a duty not to disclose the employer’s or principal’s confidential information.
See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 202 (Tex. 2002) (agents owe fiduciary
duty to principal and employee is obligated to act in employer’s best interest);].
A third party that knowingly induces a fiduciary to breach a duty, or participates in the
breach, can be held liable as a joint tortfeasor. Kinzbach Tool Co. v. Corbett-Wallace Corp., 160
S.W.2d 509, 513 (Tex. 1942); James J. Flanagan Shipping Corp. v. Del Monte Fresh Produce
N.A., Inc., 403 S.W.3d 360, 368 (Tex. App.—Houston [1st Dist.] 2013, no pet.). This rule is
illustrated by Joe N. Pratt Ins. v. Doane, No. V-07-07, 2008 WL 819011 (S.D. Tex. Mar. 20,
2008). There, the plaintiff alleged a former employee copied plaintiff’s confidential documents
as she left the plaintiff’s employment. Subsequently, the employee used the information to
compete with her former employer. Id. at *1. Furthermore, the plaintiff also alleged its former
employee shared the information with Trinity Insurance, a competitor, who used the information
to lure away the plaintiff’s clients. Id. In denying the defendant’s motion to dismiss, the court
left no question that “a third party who knowingly participates in the breach of a fiduciary duty
may be liable as a joint tortfeasor with the fiduciary.” Id. at *14. see also Cotton v. Weatherford
Bancshares, Inc., 187 S.W.3d 687, 701-02 (Tex. App.—Fort Worth 2006, pet. denied) ((same).
14
As is demonstrated by Brown’s correspondence and document production in this matter,
Brown has encouraged and assisted Faire in the breach of her fiduciary duties owed to Jones.
See Ex. D, Jones Aff. ¶¶ 7-8; Ex. B, Brown June 22, 2015 Corr. Under these circumstances,
Brown should be disqualified from continuing to represent to Faire in these proceedings.
IV. CONCLUSION & PRAYER
Brown’s improper actions in this case of accepting, reviewing, and using Jones’
privileged information warrant her disqualification from continuing to represent Faire in this
case. Defendants pray the Court disqualify Brown from representing Faire in this case and grant
Defendants all other relief to which they may be entitled.
15
Respectfully submitted,
__________________________________
Christine E. Reinhard
State Bar No. 24013389
Shannon B. Schmoyer
State Bar No. 17780250
Justin Barbour
State Bar No. 24055142
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
Phone: (210) 447-8033
Fax: (210) 447-8036
creinhard@sr-llp.com
sschmoyer@sr-llp.com
jbarbour@sr-llp.com
ATTORNEYS FOR DEFENDANTS FMP SA
MANAGEMENT GROUP, LLC, D/B/A
FOOD MANAGEMENT PARTNERS, LLC,
ALL JONES, LLC, ALLEN J. JONES,
PETER DONBAVAND, AND JASON KEMP
FIAT
The foregoing Defendants’ Motion to Disqualify Plaintiff’s Counsel is hereby set for
hearing at 9:00 a.m. on September 14, 2015 in the Presiding District Court, Bexar County
Courthouse, San Antonio, Texas.ROOM 1.09
8TH
Signed on this _________ day of September, 2015.
_______________________________________
JUDGE PRESIDING
16
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served via electronic service
and facsimile, to:
Olga Brown
Law Office of Olga Brown
111 Soledad, Suite 1725
San Antonio, Texas 78205
(210) 226-1884 (facsimile)
argyle2@sbcglobal.net
on this 8th day of September, 2015.
_________________________________
Justin Barbour
17
EXHIBIT A
EXHIBIT B
EXHIBIT C
FILED
6/19/2015 3:41:57 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Lisa Morales
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S FIFTH AMENDED ORIGINAL PETITION
Plaintiff, Cearth Faire, files this Fifth Amended Original Petition against
Defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners,
LLC, ALL JONES, LLC, Allen J Jones, Peter Donbavand and Jason Kemp, and
alleges as follows:
DISCOVERY-CONTROL PLAN
1. A Level Three Amended Agreed Docket Control Order is in place, this matter
is set for Jury Trial March 7, 2016.
CLAIM FOR RELIEF
2. Plaintiff seeks monetary relief over $200,000.00 but not more than
$3,000,000.00.
1
PARTIES
3. Plaintiff, Cearth Faire, is an individual, whose address is 8647 Timber
Place, San Antonio, TX 78250.
4. Defendant Jason Kemp is an individual, co-founder and Chief Financial
Officer (CFO) of Defendant corporations, whose business address is Food
Management Partners, LLC 120 Chula Vista, San Antonio, TX 78232. He has been
served, is represented by counsel, and is properly before this court.
5. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD
MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company
conducting business in the State of Texas, and has been served and is represented by
counsel, and is properly before this court.
6. Defendant ALL JONES, LLC is an active Texas Limited Liability
Company conducting business in the State of Texas, and has been served and is
represented by counsel, and is properly before this court
7. Defendant Allen J Jones, is an individual, co-founder and President/CEO
of Defendant corporations, who has been served and is represented by counsel, and
is properly before this court.
8. Defendant Peter Donbavand, is an individual and executive of Defendant
corporations, has been served and is represented by counsel, and is properly before
this court.
2
JURISDICTION
9. The Court has subject-matter jurisdiction over the lawsuit because the
amount in controversy exceeds this Court’s minimum jurisdictional requirements.
VENUE
10. Venue is proper in Bexar County as all or a substantial part of the events or
omissions giving rise to the claim occurred in Bexar County.
FACTS
11. Plaintiff Faire was an employee of Defendant Kemp, Chief Financial
Officer of Defendant Corporations and of Defendant Jones, CEO of Defendant
Corporations. In addition to the local corporate duties, she was required to work in
the Dominican Republic for approximately five months on a 24/7 basis, for the
Defendant Jones, CEO with the knowledge of Defendant Kemp.
Plaintiff Faire, during the term of her employment was not properly
compensated, giving rise to several violations of Wage and Hour laws that
Defendant Kemp, CFO knew or should have known about.
12. Defendant Kemp, as Chief Financial Officer of the Defendant
Corporations, was made aware of the facts supporting Plaintiff’s claims by means of
intra-corporate email traffic and including instructions to him and all other Defendants
by Jones as to how to properly proceed on Defendant Jones’ gifting to the Plaintiff the
real estate, and specifically the “Kemp” house.
3
13. Defendant Jones, CEO in his official capacity as well as in his individual
capacity communicated his intent to make the gift of real estate to Plaintiff by
negotiating a price for the “Kemp” house at 8647 Timber Pl. San Antonio, Texas,
78250. Defendant Kemp’s, knowledge of the oral gift of real estate to Plaintiff is
supported by the fact that a buyer’s lease agreement was executed.
Further, Defendant Donbavand, in his individual capacity and outside the
scope of corporate business issued orders for the inspection of, and preparation of
the necessary documents to carry out gifting of the real estate to the Plaintiff.
Defendant Kemp, individually and in his official capacity of chief financial officer of the
Defendant Corporations knew or should have known the facts supporting Plaintiff’s
claims. Again, email traffic between all Defendants supports the facts of Plaintiff’s
claims of oral gift of real estate, fraud, and quid pro quo sexual harassment and
retaliation.
14. Defendant Jones, as CEO and in his individual capacity, negotiated with
Defendant Jason Kemp, CFO, whose wife owned the residence at 8647 Timber Pl,
San Antonio, TX 78250.
15. Defendant Kemp, CFO and co-owner, also a business partner of
Defendant Jones, took orders and assumed duties outside the course and scope of
the corporate entities upon demand from Defendant Jones, the President & CEO of
Defendants FMP and ALL JONES, LLC. Defendant Jones treats the corporate
entities as his “piggy bank” and Defendants Donbavand and Kemp, as his personal
aides.
4
16. Defendant Kemp, CFO and co-owner, routinely succumbs to the
personal demands of Defendant Jones outside the best interests of the corporate
business, as in this case, to sell him the residence at 8647 Timber Pl, San Antonio, TX
78250, so he could gift the property to the Plaintiff in consideration for her assisting in
his personal legal matters, and in lieu of proper wage compensation.
17. Defendant Kemp had personal reasons to complete the necessary
documents. Defendant Donbavand, on behalf of Defendant Jones requested of
Defendant Kemp, that Plaintiff move into the house prior to “closing”, orally gifting her
the house, a present gift. Plaintiff, in reliance of Jones’ oral promise moved into the
house with the consent of Defendant Kemp and the consent and request of
Defendant Jones and made valuable and permanent improvements in reliance of
Defendant Jones promise to her.
18. Plaintiff incurred moving expenses as well as expenses in making
permanent improvements to the residence to make it habitable. Defendants’ email
traffic support this. The residence is still in need of significant repairs. An inspection
was ordered by the defendants as further proof of Defendant Jones’ purchase with
intention to make a gift.
19. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent
promotion based on meritorious work.. Defendant Jones demanded the other
defendants Defendant Peter Donbavand and Defendant Jason Kemp evict Plaintiff
5
from the house he had given her in retaliation for her refusal of sexual advances.
The wrongful eviction proceedings were abated, as the justice of the peace court
lacks jurisdiction to rule on the petition for eviction in that title to the property is at
issue. The wrongful eviction proceedings are outside the course and scope of
corporate business.
20. Defendants, all acting in concert, continued to retaliate against, and
harass the Plaintiff by wrongfully repossessing her car. Plaintiff had clear title to her
2005 Mini Cooper. Jones promised to repair her car. An ambiguous payment plan
was put in place. However, in retaliation for claiming her rightful title to her house,
Jones has deprived Plaintiff of a necessity, of transportation to seek employment.
During the repossession process, Jones terrorized her by sending strangers to ring
her doorbell, all while he owns a million dollars worth of automobiles, and spends a
great deal of his time in the Dominican Republic.
21. Plaintiff had an exemplary employment record before being hired by
Defendants FMP and ALL JONES, LLC. Immediately before being fired by
Defendants, Faire had been given a raise in pay and been entrusted with additional
duties. Plaintiff was fired solely because Plaintiff refused to continue to perform
employment duties that were not in furtherance of the corporate business and
because of Defendant Jones’ demands for demeaning sexual acts and explicit threats
to fire her if she didn’t submit.
22. Plaintiff seeks actual damages as a result of the sexual harassment and
6
discrimination, which include, but are not limited to back pay from the date of quid pro
quo retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and
benefits including the repossession of her automobile lost as a result of her unlawful
termination.
23. Plaintiff also seeks damages for past and future mental anguish as a
result of Defendant Jones explicitly forcing her to choose between the sexual abuse
he was demanding of her and her livelihood.
24. Defendant Jones acted with malice toward Plaintiff in that Jones
exhibited conscious indifference to consequences Plaintiff might suffer separate and
apart from the damages suffered as a result of the retaliation. Defendant Jones, as
President and CEO, has inflicted additional injuries by circulating malicious rumors
about the Plaintiff at corporate headquarters. Plaintiff therefore seeks exemplary
damages.
COUNT 1- ORAL GIFT OF REAL ESTATE
25. On or about March 27, 2013, when Plaintiff Faire, as an employee of
Defendant Corporations, was temporarily living in the Dominican Republic at the
behest of Defendant Jones, CEO, working on a 24/7 hour basis, Defendant Jones
promised to buy a home and gift it to Plaintiff upon their return to San Antonio, Bexar
County, Texas.
26. On or about July 30 2014, Plaintiff moved into the house at 8647 Timber
Pl, San Antonio, Texas 78250, that Defendant Jones gifted her in his individual
7
capacity but with the knowledge and consent of all Defendants, including Defendant
Kemp. Plaintiff is still living at her home, taking possession under the present gift.
27. Plaintiff has made permanent and valuable improvement to the home
based on the reliance of the gift made to her by Defendant Jones as an individual.
28. It was reasonable for Plaintiff to rely on Defendant Jones’ promise of an
oral gift of real estate based on Defendant Jones’ financial resources, including but
not limited to ownership in franchises of Zio’s Italian Kitchen, Buffalo Wild Wings,
Don Pablo’s Big Tex Bold Mex, Furr’s, Little Ceasar’s and Smashburger.
29. Further, in other judicial proceedings, Defendant Jones made judicial
admissions of owning 150 businesses and having financial resources to “buy” a
young lady from a brothel for $10,000.00 in the Dominican Republic where he also
has extensive real estate holdings. In other words, judicial admissions of human
trafficking on the part of the CEO of Defendant corporations, with the knowledge of
other corporate officers, including Defendant Kemp, CFO. This is relevant to both
the financial capacity to gift a house to an employee, and to Defendants’ attitude
toward females.
30. Defendant Jones informed the Plaintiff that he was buying the house from
Defendant Kemp, and that at closing, he would give her full title and interest to the
home. Defendants Jones further promised the closing would take place immediately
8
upon the reaching of an agreement on the final price and other terms. A final
purchase price was reached between Defendant Jones and Defendant Jason Kemp.
All terms for the sale of the house were reached by buyer and seller, and having
absolutely nothing to do with the business of the corporate entities, parties herein
31. Defendant Kemp, and Defendant Donbavand knew the house located at
8647 Timber Pl, San Antonio, TX 78250 purchased from Kemp, was a gift of real
estate to the Plaintiff. Defendant Donbavand ordered an inspection of the home in
furtherance of a prompt closing, all outside of the course and scope of corporate
business. Defendant Kemp’s knowledge of the gift is evidenced by email traffic
exchanged between Defendant Kemp and Defendant Donbavand.
32. Defendant Jones made this gift to Plaintiff as an individual and not as
President & CEO of the other corporate defendants. Defendant Jones purchased
the home from Defendant Kemp as an individual and not as a transaction within the
course and scope of corporate business.
33. Defendant Jones ordered Defendant Donbavand to complete the
necessary documentation and transactions outside the course and scope of
corporate business. Defendant Donbavand routinely acts as Defendant Jones’
personal aide to carry out his orders regarding personal matters. Defendant
Donbavand is experienced in real estate transactions and worked to completing the
necessary documents. In the meantime, in a fit of retaliation, Defendant Jones
9
changed his mind about the gift. Plaintiff has been living in the house since on or
before July 30, 2014.
34. Plaintiff asserts this oral gift of real estate must be enforced in equity as
the facts herein establish a gift of real estate, notwithstanding the requirements of
the statute of frauds.
COUNT 2 – Conspiracy Claim
35. Defendant Jones, CEO of Defendant Corporations, took overt steps of
retaliation toward employee, Faire, giving rise to an agreement between Defendant
Donbavand and Defendant Kemp and himself, to enter into a scheme against Plaintiff,
to deny that he had made an oral gift of real estate to Plaintiff, even though Defendant
Kemp had given her a key to the home, and a short term buyer’s lease to evidence
her proper move into the residence.
36. Plaintiff asserts that email correspondence between conspirators that
has been properly requested by her, but denied her, will support all Defendants were
involved in Defendant Jones’ retaliation against Plaintiff. All Defendants have
participated in the common goal of depriving Plaintiff of her home, after she had taken
possession of the home and made valuable improvement, by numerous petitions for
eviction proceedings.
10
37. Defendants are in possession of email communications between
conspirators that will support a meeting of the minds on the subject of retaliation, and
the tort of fraud to deprive Plaintiff Faire of the real estate gifted to her. Plaintiff Faire
has sustained economic damages as a result of the conspiracy by Defendants Jones,
Kemp and Donbavand to defraud her of her rightful title to the real estate.
38. It is well established that fraud can be the basis of a conspiracy. The
Defendants Jones, Kemp and Donbavand made material misrepresentations to the
Plaintiff in connection with the gifting of the real estate to her. Each Defendant took
overt steps and actions to deceive her by going through the process of purchase and
delivery of the real estate.
39. Plaintiff Faire relied on each step taken by each of the Defendants in
furtherance of delivery possession of the house to her. Defendants intended for the
Plaintiff to rely on their representations that they were working on carrying out the oral
gift of real estate.
40. Defendants’ false representations, including those of Defendant Kemp
have directly and proximately caused economic and other injuries to the Plaintiff.
Plaintiff seeks damages within the jurisdictional limits of this court.
41. Plaintiff seeks exemplary damages from each Defendant including
Defendant Kemp, because Plaintiff will show each acted with malice toward the
Plaintiff which entitles Plaintiff to exemplary damages under Texas civil Practice and
Remedies code section 41.003(a).
11
COUNT 3 QUID PRO QUO SEXUAL HARASSMENT
42. Plaintiff was an employee of Defendants FMP, ALL JONES and their
subsidiaries, and her duties were to serve as a personal assistant to the Defendant
Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self-
supporting divorced woman with no financial resources other than her wages. Plaintiff
also had an exemplary work history prior to working for Defendants.
43. Plaintiff raises this claim under Tex. Lab. Code Ann. §§ 21.001, .051
(West 1996), which prohibits discrimination on the basis of sex.
44. On or about January 21, 2013 Defendant Jones made sexual advances
toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical
conduct of a sexual nature. Defendant Jones’s demands escalated and the mental
abuse was so extreme that it prevented Plaintiff from defending herself.
45. Defendant Jones made it cleared to the Plaintiff that continued
employment as well as other job benefits were conditioned on her acceptance of the
continued sexual demands of Defendant Jones.
46. At the time of the harassment, Defendant Jones was the President and
CEO of the Food Management Partners, a Texas LLC. At all times, Defendant
Jones held himself out to Plaintiff and to the public, as a very powerful business man,
and owner of 150 businesses. Defendant Jones instilled fear of his financial power
on Plaintiff. There was no recourse available to the Plaintiff to complain.
12
47. Plaintiff was harmed by the physical sexual conduct perpetrated against
her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by
Defendant Jones sexual harassment. When Plaintiff was mentally well enough to,
she refused to further submit to Defendant Jones’ inappropriate requests she was
fired on or about August 31, 2014.
48. Plaintiff seeks compensatory damages for lost wages, lost benefits and
future employment opportunities based on her traumatic experience at the hand of
Defendant Jones.
49. Plaintiff seeks exemplary damages based on Defendant Jones’s history
of sexual harassment of others and including judicial admissions that he purchased a
female as if she was merely chattel.
50. Further, Plaintiff seeks exemplary damages against Defendant
Donbavand and Defendant Kemp, as her injury resulted from Defendants’ malice,
which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code
section 41.003(a).
JURY DEMAND
51. Plaintiff has demanded a jury trial and tendered the appropriate fee with her
original petition. The jury trail has been set for November 2, 2015.
13
CONDITIONS PRECEDENT
52. All conditions precedent to plaintiff’s claim for relief have been performed or
have occurred.
OBJECTION TO ASSOCIATE JUDGE
53. Plaintiff objects to the referral of this case to an associate judge
for hearing a trial on the merits or presiding at a jury trial.
PRAYER
For these reasons, Plaintiff asks that Defendants be cited to appear and
answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for
the following:
a. Exemplary damages
b. Economic and non-economic damages including, but not limited to back
pay, front pay, severance pay, specific performance regarding the gift
purchase of a home (or its monetary equivalent).
c. All the remedies afforded by Tex. Lab. Code Ann. 21.001
d. Prejudgment and postjudgment interest.
e. Court costs.
f. Reasonable and necessary Attorney’s fees
g. All other relief to which Plaintiff is entitled.
14
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argyle2@sbcglobal.net
By: /s/ Olga Brown_________
OLGA BROWN
State Bar No. 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 19th day of June 2015, in accordance with the
TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Fifth Amended Original Petition was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
15
EXHIBIT D
EXHIBIT E
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S FOURTH AMENDED ORIGINAL PETITION
Plaintiff, Cearth Faire, files this Fourth Amended Original Petition against
defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners,
LLC, ALL JONES, LLC, Allen J Jones, Peter Donbavand and Jason Kemp, and
alleges as follows:
DISCOVERY-CONTROL PLAN
1. A Level Three Agreed Docket Control Order is in place, this matter is set for
Jury Trial November 2, 2015.
CLAIM FOR RELIEF
2. Plaintiff seeks monetary relief over $200,000.00 but not more than
$3,000,000.00.
PARTIES
3. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place,
San Antonio, TX 78250.
4. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD
MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company
conducting business in the State of Texas, and has been served and is represented by
counsel, and is properly before this court.
5. Defendant ALL JONES, LLC is an active Texas Limited Liability
Company conducting business in the State of Texas, and has been served and is
represented by counsel, and is properly before this court
6. Defendant Allen J Jones, is an individual who has been served and is
represented by counsel, and is properly before this court.
7. Defendant Peter Donbavand, is an individual has been served and is
represented by counsel, and is properly before this court.
8. Defendant Jason Kemp is an individual whose business address is
Food Management Partners, LLC 120 Chula Vista, San Antonio, TX 78232. He may
be served at this address, or wherever he may be found.
JURISDICTION
9. The Court has subject-matter jurisdiction over the lawsuit because the
amount in controversy exceeds this Court’s minimum jurisdictional requirements.
2
VENUE
10. Venue is proper in Bexar County as all or a substantial part of the events or
omissions giving rise to the claim occurred in Bexar County.
FACTS
11. Plaintiff Faire was an employee of Defendants, as well as a personal
assistant to Defendant Jones. Plaintiff, in addition to working for Defendants’
businesses, also took care of Defendant Jones’ personal matters, including living in
the Dominican Republic for approximately five months on a 24/7 basis assisting in his
defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been
properly compensated.
12. Defendant Jones, individually, in recognition for her loyal and tireless
services personal to him, promised Plaintiff a home. Defendant Jones developed a
scheme for his purchase of the house that included telling other corporate officers that
Plaintiff’s pay increase was for the house payments. Defendant Jones intended to hide
his gift from the other Defendants named in this lawsuit, until he retaliated against
Plaintiff by denying he had made a gift of real estate to Plaintiff.
13. Defendant Jones, in his individual capacity, negotiated with Defendant
Jason Kemp, whose wife owned the residence at 8647 Timber Pl, San Antonio, TX
78250. Defendant Jones then instructed, Defendant Donbavand, in his individual
capacity and outside the scope of corporate business to prepare the necessary
documents so he, Jones could purchase the residence for the Plaintiff.
14. Defendant Donbavand, while a business partner of Defendant Jones and
also an agent of Defendant FMP, routinely served Defendant Jones as a personal
aide and routinely took orders from Jones outside the course and scope of his duties
with the corporate entities to meet the personal demands of Defendant Jones,
notwithstanding if the corporate best interests were served.
15. Defendant Kemp, also a business partner of Defendant Jones, took orders and
assumed duties outside the course and scope of the corporate entities upon demand
from Defendant Jones the President & CEO of Defendant FMP. Defendant Jones
treats the corporate entities as his “piggy bank” and Defendants Donbavand and
Kemp, as his personal aides.
16. Defendant Kemp routinely succumbs to the personal demands of
Defendant Jones outside the best interests of the corporate business as in this case to
sell him the residence at 8647 Timber Pl, San Antonio, TX 78250, so he could gift the
property to the Plaintiff in consideration for her assisting in his personal legal matters.
17. While Defendant Donbavand was completing the necessary
documents, again outside the course and scope of corporate business, Defendant
Jones requested that Plaintiff move into the house, orally gifting her the house, a
present gift. Plaintiff in reliance of his oral promised moved into the house with the
consent of Defendant Kemp and the request of Defendant Jones and made valuable
and permanent improvements in reliance of Defendant Jones promise to her.
4
18. Plaintiff incurred moving expenses as well as expenses in making
permanent improvements to the residence to make it habitable. The residence is still
in need of significant repairs. An inspection was ordered by the defendants as further
proof of Defendant Jones’ purchase with intention to make a gift.
19. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent
promotion based on meritorious work.. Defendant Jones demanded the other
defendants Defendant Peter Donbavand and Defendant Jason Kemp evict Plaintiff
from the house he had given her. The wrongful eviction proceedings were abated,
as the justice of the peace court lacks jurisdiction to rule on the petition for eviction in
that title to the property is at issue. The wrongful eviction proceedings are outside the
course and scope of corporate business.
20. Defendants continued to harass the Plaintiff by wrongfully repossessing
her car. Plaintiff had clear title to her 2005 Mini Cooper. Jones promised to repair
her car. An ambiguous payment plan was put in place. However, in retaliation for
claiming her rightful title to her house, Jones has deprived Plaintiff of a necessity, of
transportation to seek employment. During the repossession process, Jones
terrorized her by sending strangers to ring her doorbell, all while he owns a million
dollars worth of automobiles, and spends a great deal of his time in the Dominican
Republic.
21. Plaintiff had an exemplary employment record before being hired by
Defendants FMP and ALL JONES, LLC. Immediately before being fired by
Defendants, Faire had been given a raise in pay and been entrusted with additional
duties. Plaintiff was fired solely because Plaintiff refused to continue to perform
employment duties that were not in furtherance of the corporate business and
because of Defendant Jones’ demands for demeaning sexual acts and explicit threats
to fire her if she didn’t submit.
22. Plaintiff seeks actual damages as a result of the sexual harassment and
discrimination, which include, but are not limited to back pay from the date of quid pro
quo retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and
benefits including the repossession of her automobile lost as a result of her unlawful
termination.
23. Plaintiff also seeks damages for past and future mental anguish as a
result of Defendant Jones explicitly forcing her to choose between the sexual abuse
he was demanding of her and her livelihood.
24. Defendant Jones acted with malice toward Plaintiff in that Jones
exhibited conscious indifference to consequences Plaintiff might suffer separate and
apart from the damages suffered as a result of the retaliation. Defendant Jones, as
President and CEO, has inflicted additional injuries by circulating malicious rumors
about the Plaintiff at corporate headquarters. Plaintiff therefore seeks exemplary
damages.
6
COUNT 1- ORAL GIFT OF REAL ESTATE
25. On or about March 27, 2013, when Plaintiff Faire was temporarily living
in the Dominican Republic at the request of Defendant Jones, taking care of Jones’
child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home
and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas.
26. On or about July 20 2014, Plaintiff moved into the house at 8647 Timber
Pl, San Antonio, Texas 78250, that Defendant Jones gifted her in his individual
capacity but with the knowledge and consent of all Defendants. Plaintiff is still
living at her home, taking possession under the present gift.
27. Plaintiff has made permanent and valuable improvement to the home
based on the reliance of the gift made to her by Defendant Jones as an individual.
28. It was reasonable for Plaintiff to rely on Defendant Jones’ promise of an
oral gift of real estate based on Defendant Jones’ financial resources, including but
not limited to ownership in franchises of Zio’s Italian Kitchen, Buffalo Wild Wings,
Don Pablo’s Big Tex Bold Mex, Furr’s, Little Ceasar’s and Smashburger.
29. Further, Defendant Jones boasts of having presently one million dollars
worth of cars and extensive real estate holdings in the state. In other judicial
proceedings, Defendant Jones bragged about owning 150 businesses and having
financial resources to “buy” a young lady from a brothel for $10,000.00 in the
Dominican Republic where he also has extensive real estate holdings.
30. Defendant Jones informed the Plaintiff that he was buying the house from
Defendant Kemp, and that at closing, he would give her full title and interest to the
home. Defendants Jones further promised the closing would take place immediately
upon the reaching of an agreement on the final price and other terms. A final
purchase price was reached between Defendant Jones and Defendant Jason Kemp.
All terms for the sale of the house were reached by buyer and seller, and having
absolutely nothing to do with the business of the corporate entities, parties herein
31. Defendant Jones negotiated all the terms of the real estate purchase to
make a present gift of real estate to Plaintiff. Defendant Jones, Defendant Kemp,
and Defendant Donbavand knew the house located at 8647 Timber Pl, San Antonio,
TX 78250 purchased from Kemp’s wife, Tara Kemp, was a gift of real estate to the
Plaintiff. Defendant Donbavand ordered an inspection of the home in furtherance of
a prompt closing, all outside of the course and scope of corporate business..
32. Defendant Jones made this gift to Plaintiff as an individual and not as
President & CEO of the other corporate defendants. Defendant Jones purchased
the home from Defendant Kemp as an individual and not as a transaction within the
course and scope of corporate business.
33. Defendant Jones ordered Defendant Donbavand to complete the
necessary documentation and transactions outside the course and scope of
8
corporate business. Defendant Donbavand routinely acts as Defendant Jones’
personal aide to carry out his orders regarding personal matters. Defendant
Donbavand is experienced in real estate transactions and worked to completing the
necessary documents. In the meantime, in a fit of retaliation, Defendant Jones
changed his mind about the gift. Plaintiff has been living in the house for eight
months.
34. Plaintiff asserts this oral gift of real estate must be enforced in equity as
the facts herein establish a gift of real estate, notwithstanding the requirements of
the statute of frauds.
COUNT 2 – Conspiracy
35. Defendants Peter Donbavand and Jason Kemp, as individuals acting
outside their corporate duties, assisted Defendant Jones in conduct which they knew
amounted to a commission of a tort or wrongful acts against the Plaintiff, and
specifically acting to rescind the oral gift of real estate to Plaintiff
36. Defendant Donbavand and Defendant Kemp acted with intent to assist
Defendant Jones in his wrongful acts toward Plaintiff of attempting to rescind the
present gift of real estate.
37. Defendant Donbavand and Defendant Kemp’s assistance to Defendant
Jones and their own related conduct was a substantial factor in the breach of the
present gift Defendant Jones made to Plaintiff.
COUNT 3 QUID PRO QUO SEXUAL HARASSMENT
38. Plaintiff was an employee of Defendants FMP, ALL JONES and their
subsidiaries, and her duties were to serve as a personal assistant to the Defendant
Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self-
supporting divorced woman with no financial resources other than her wages. Plaintiff
also had an exemplary work history prior to working for Defendants.
39. Plaintiff raises this claim under Tex. Lab. Code Ann. §§ 21.001, .051
(West 1996), which prohibits discrimination on the basis of sex.
40. On or about January 21, 2013 Defendant Jones made sexual advances
toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical
conduct of a sexual nature. Defendant Jones’s demands escalated and the mental
abuse was so extreme that it prevented Plaintiff from defending herself.
41. Defendant Jones made it cleared to the Plaintiff that continued
employment as well as other job benefits were conditioned on her acceptance of the
continued sexual demands of Defendant Jones.
42. At the time of the harassment, Defendant Jones was the President and
CEO of the Food Management Partners, a Texas LLC. At all times, Defendant
Jones held himself out to Plaintiff and to the public, as a very powerful business man,
and owner of 150 businesses. Defendant Jones instilled fear of his financial power
on Plaintiff. There was no recourse available to the Plaintiff to complain.
10
43. Plaintiff was harmed by the physical sexual conduct perpetrated against
her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by
Defendant Jones sexual harassment. When Plaintiff was mentally well enough to,
she refused to further submit to Defendant Jones’ inappropriate requests she was
fired on or about August 31, 2014.
44. Plaintiff seeks compensatory damages for lost wages, lost benefits and
future employment opportunities based on her traumatic experience at the hand of
Defendant Jones.
45. Plaintiff seeks exemplary damages based on Defendant Jones’s history
of sexual harassment of others and including the purchase of a female as if she was
merely chattel.
46. Further, Plaintiff seeks exemplary damages against Defendant
Donbavand and Defendant Kemp, as her injury resulted from Defendants’ malice,
which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code
section 41.003(a).
JURY DEMAND
47. Plaintiff has demanded a jury trial and tendered the appropriate fee with her
original petition. The jury trail has been set for November 2, 2015.
CONDITIONS PRECEDENT
48. All conditions precedent to plaintiff’s claim for relief have been performed or
have occurred.
OBJECTION TO ASSOCIATE JUDGE
49. Plaintiff objects to the referral of this case to an associate judge for
hearing a trial on the merits or presiding at a jury trial.
PRAYER
For these reasons, Plaintiff asks that Defendants be cited to appear and
answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for
the following:
a. Exemplary damages
b. Economic and non-economic damages including, but not limited to back
pay, front pay, severance pay, specific performance regarding the gift
purchase of a home (or its monetary equivalent).
c. All the remedies afforded by Tex. Lab. Code Ann. 21.001
c. Prejudgment and postjudgment interest.
d. Court costs.
e. Reasonable and necessary Attorney’s fees
f. All other relief to which Plaintiff is entitled.
12
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argyle2@sbcglobal.net
By: /s/ Olga Brown_________
OLGA BROWN
State Bar No. 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 10th day of March 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Fourth Amended Original Petition was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
EXHIBIT F
EXHIBIT G
Appendix 7
Appendix 8
FILED
6/30/2015 10:45:37 AM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Alex Lewicke
Appendix 9
FILED
6/19/2015 3:41:57 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Lisa Morales
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S FIFTH AMENDED ORIGINAL PETITION
Plaintiff, Cearth Faire, files this Fifth Amended Original Petition against
Defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners,
LLC, ALL JONES, LLC, Allen J Jones, Peter Donbavand and Jason Kemp, and
alleges as follows:
DISCOVERY-CONTROL PLAN
1. A Level Three Amended Agreed Docket Control Order is in place, this matter
is set for Jury Trial March 7, 2016.
CLAIM FOR RELIEF
2. Plaintiff seeks monetary relief over $200,000.00 but not more than
$3,000,000.00.
1
PARTIES
3. Plaintiff, Cearth Faire, is an individual, whose address is 8647 Timber
Place, San Antonio, TX 78250.
4. Defendant Jason Kemp is an individual, co-founder and Chief Financial
Officer (CFO) of Defendant corporations, whose business address is Food
Management Partners, LLC 120 Chula Vista, San Antonio, TX 78232. He has been
served, is represented by counsel, and is properly before this court.
5. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD
MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company
conducting business in the State of Texas, and has been served and is represented by
counsel, and is properly before this court.
6. Defendant ALL JONES, LLC is an active Texas Limited Liability
Company conducting business in the State of Texas, and has been served and is
represented by counsel, and is properly before this court
7. Defendant Allen J Jones, is an individual, co-founder and President/CEO
of Defendant corporations, who has been served and is represented by counsel, and
is properly before this court.
8. Defendant Peter Donbavand, is an individual and executive of Defendant
corporations, has been served and is represented by counsel, and is properly before
this court.
2
JURISDICTION
9. The Court has subject-matter jurisdiction over the lawsuit because the
amount in controversy exceeds this Court’s minimum jurisdictional requirements.
VENUE
10. Venue is proper in Bexar County as all or a substantial part of the events or
omissions giving rise to the claim occurred in Bexar County.
FACTS
11. Plaintiff Faire was an employee of Defendant Kemp, Chief Financial
Officer of Defendant Corporations and of Defendant Jones, CEO of Defendant
Corporations. In addition to the local corporate duties, she was required to work in
the Dominican Republic for approximately five months on a 24/7 basis, for the
Defendant Jones, CEO with the knowledge of Defendant Kemp.
Plaintiff Faire, during the term of her employment was not properly
compensated, giving rise to several violations of Wage and Hour laws that
Defendant Kemp, CFO knew or should have known about.
12. Defendant Kemp, as Chief Financial Officer of the Defendant
Corporations, was made aware of the facts supporting Plaintiff’s claims by means of
intra-corporate email traffic and including instructions to him and all other Defendants
by Jones as to how to properly proceed on Defendant Jones’ gifting to the Plaintiff the
real estate, and specifically the “Kemp” house.
3
13. Defendant Jones, CEO in his official capacity as well as in his individual
capacity communicated his intent to make the gift of real estate to Plaintiff by
negotiating a price for the “Kemp” house at 8647 Timber Pl. San Antonio, Texas,
78250. Defendant Kemp’s, knowledge of the oral gift of real estate to Plaintiff is
supported by the fact that a buyer’s lease agreement was executed.
Further, Defendant Donbavand, in his individual capacity and outside the
scope of corporate business issued orders for the inspection of, and preparation of
the necessary documents to carry out gifting of the real estate to the Plaintiff.
Defendant Kemp, individually and in his official capacity of chief financial officer of the
Defendant Corporations knew or should have known the facts supporting Plaintiff’s
claims. Again, email traffic between all Defendants supports the facts of Plaintiff’s
claims of oral gift of real estate, fraud, and quid pro quo sexual harassment and
retaliation.
14. Defendant Jones, as CEO and in his individual capacity, negotiated with
Defendant Jason Kemp, CFO, whose wife owned the residence at 8647 Timber Pl,
San Antonio, TX 78250.
15. Defendant Kemp, CFO and co-owner, also a business partner of
Defendant Jones, took orders and assumed duties outside the course and scope of
the corporate entities upon demand from Defendant Jones, the President & CEO of
Defendants FMP and ALL JONES, LLC. Defendant Jones treats the corporate
entities as his “piggy bank” and Defendants Donbavand and Kemp, as his personal
aides.
4
16. Defendant Kemp, CFO and co-owner, routinely succumbs to the
personal demands of Defendant Jones outside the best interests of the corporate
business, as in this case, to sell him the residence at 8647 Timber Pl, San Antonio, TX
78250, so he could gift the property to the Plaintiff in consideration for her assisting in
his personal legal matters, and in lieu of proper wage compensation.
17. Defendant Kemp had personal reasons to complete the necessary
documents. Defendant Donbavand, on behalf of Defendant Jones requested of
Defendant Kemp, that Plaintiff move into the house prior to “closing”, orally gifting her
the house, a present gift. Plaintiff, in reliance of Jones’ oral promise moved into the
house with the consent of Defendant Kemp and the consent and request of
Defendant Jones and made valuable and permanent improvements in reliance of
Defendant Jones promise to her.
18. Plaintiff incurred moving expenses as well as expenses in making
permanent improvements to the residence to make it habitable. Defendants’ email
traffic support this. The residence is still in need of significant repairs. An inspection
was ordered by the defendants as further proof of Defendant Jones’ purchase with
intention to make a gift.
19. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent
promotion based on meritorious work.. Defendant Jones demanded the other
defendants Defendant Peter Donbavand and Defendant Jason Kemp evict Plaintiff
5
from the house he had given her in retaliation for her refusal of sexual advances.
The wrongful eviction proceedings were abated, as the justice of the peace court
lacks jurisdiction to rule on the petition for eviction in that title to the property is at
issue. The wrongful eviction proceedings are outside the course and scope of
corporate business.
20. Defendants, all acting in concert, continued to retaliate against, and
harass the Plaintiff by wrongfully repossessing her car. Plaintiff had clear title to her
2005 Mini Cooper. Jones promised to repair her car. An ambiguous payment plan
was put in place. However, in retaliation for claiming her rightful title to her house,
Jones has deprived Plaintiff of a necessity, of transportation to seek employment.
During the repossession process, Jones terrorized her by sending strangers to ring
her doorbell, all while he owns a million dollars worth of automobiles, and spends a
great deal of his time in the Dominican Republic.
21. Plaintiff had an exemplary employment record before being hired by
Defendants FMP and ALL JONES, LLC. Immediately before being fired by
Defendants, Faire had been given a raise in pay and been entrusted with additional
duties. Plaintiff was fired solely because Plaintiff refused to continue to perform
employment duties that were not in furtherance of the corporate business and
because of Defendant Jones’ demands for demeaning sexual acts and explicit threats
to fire her if she didn’t submit.
22. Plaintiff seeks actual damages as a result of the sexual harassment and
6
discrimination, which include, but are not limited to back pay from the date of quid pro
quo retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and
benefits including the repossession of her automobile lost as a result of her unlawful
termination.
23. Plaintiff also seeks damages for past and future mental anguish as a
result of Defendant Jones explicitly forcing her to choose between the sexual abuse
he was demanding of her and her livelihood.
24. Defendant Jones acted with malice toward Plaintiff in that Jones
exhibited conscious indifference to consequences Plaintiff might suffer separate and
apart from the damages suffered as a result of the retaliation. Defendant Jones, as
President and CEO, has inflicted additional injuries by circulating malicious rumors
about the Plaintiff at corporate headquarters. Plaintiff therefore seeks exemplary
damages.
COUNT 1- ORAL GIFT OF REAL ESTATE
25. On or about March 27, 2013, when Plaintiff Faire, as an employee of
Defendant Corporations, was temporarily living in the Dominican Republic at the
behest of Defendant Jones, CEO, working on a 24/7 hour basis, Defendant Jones
promised to buy a home and gift it to Plaintiff upon their return to San Antonio, Bexar
County, Texas.
26. On or about July 30 2014, Plaintiff moved into the house at 8647 Timber
Pl, San Antonio, Texas 78250, that Defendant Jones gifted her in his individual
7
capacity but with the knowledge and consent of all Defendants, including Defendant
Kemp. Plaintiff is still living at her home, taking possession under the present gift.
27. Plaintiff has made permanent and valuable improvement to the home
based on the reliance of the gift made to her by Defendant Jones as an individual.
28. It was reasonable for Plaintiff to rely on Defendant Jones’ promise of an
oral gift of real estate based on Defendant Jones’ financial resources, including but
not limited to ownership in franchises of Zio’s Italian Kitchen, Buffalo Wild Wings,
Don Pablo’s Big Tex Bold Mex, Furr’s, Little Ceasar’s and Smashburger.
29. Further, in other judicial proceedings, Defendant Jones made judicial
admissions of owning 150 businesses and having financial resources to “buy” a
young lady from a brothel for $10,000.00 in the Dominican Republic where he also
has extensive real estate holdings. In other words, judicial admissions of human
trafficking on the part of the CEO of Defendant corporations, with the knowledge of
other corporate officers, including Defendant Kemp, CFO. This is relevant to both
the financial capacity to gift a house to an employee, and to Defendants’ attitude
toward females.
30. Defendant Jones informed the Plaintiff that he was buying the house from
Defendant Kemp, and that at closing, he would give her full title and interest to the
home. Defendants Jones further promised the closing would take place immediately
8
upon the reaching of an agreement on the final price and other terms. A final
purchase price was reached between Defendant Jones and Defendant Jason Kemp.
All terms for the sale of the house were reached by buyer and seller, and having
absolutely nothing to do with the business of the corporate entities, parties herein
31. Defendant Kemp, and Defendant Donbavand knew the house located at
8647 Timber Pl, San Antonio, TX 78250 purchased from Kemp, was a gift of real
estate to the Plaintiff. Defendant Donbavand ordered an inspection of the home in
furtherance of a prompt closing, all outside of the course and scope of corporate
business. Defendant Kemp’s knowledge of the gift is evidenced by email traffic
exchanged between Defendant Kemp and Defendant Donbavand.
32. Defendant Jones made this gift to Plaintiff as an individual and not as
President & CEO of the other corporate defendants. Defendant Jones purchased
the home from Defendant Kemp as an individual and not as a transaction within the
course and scope of corporate business.
33. Defendant Jones ordered Defendant Donbavand to complete the
necessary documentation and transactions outside the course and scope of
corporate business. Defendant Donbavand routinely acts as Defendant Jones’
personal aide to carry out his orders regarding personal matters. Defendant
Donbavand is experienced in real estate transactions and worked to completing the
necessary documents. In the meantime, in a fit of retaliation, Defendant Jones
9
changed his mind about the gift. Plaintiff has been living in the house since on or
before July 30, 2014.
34. Plaintiff asserts this oral gift of real estate must be enforced in equity as
the facts herein establish a gift of real estate, notwithstanding the requirements of
the statute of frauds.
COUNT 2 – Conspiracy Claim
35. Defendant Jones, CEO of Defendant Corporations, took overt steps of
retaliation toward employee, Faire, giving rise to an agreement between Defendant
Donbavand and Defendant Kemp and himself, to enter into a scheme against Plaintiff,
to deny that he had made an oral gift of real estate to Plaintiff, even though Defendant
Kemp had given her a key to the home, and a short term buyer’s lease to evidence
her proper move into the residence.
36. Plaintiff asserts that email correspondence between conspirators that
has been properly requested by her, but denied her, will support all Defendants were
involved in Defendant Jones’ retaliation against Plaintiff. All Defendants have
participated in the common goal of depriving Plaintiff of her home, after she had taken
possession of the home and made valuable improvement, by numerous petitions for
eviction proceedings.
10
37. Defendants are in possession of email communications between
conspirators that will support a meeting of the minds on the subject of retaliation, and
the tort of fraud to deprive Plaintiff Faire of the real estate gifted to her. Plaintiff Faire
has sustained economic damages as a result of the conspiracy by Defendants Jones,
Kemp and Donbavand to defraud her of her rightful title to the real estate.
38. It is well established that fraud can be the basis of a conspiracy. The
Defendants Jones, Kemp and Donbavand made material misrepresentations to the
Plaintiff in connection with the gifting of the real estate to her. Each Defendant took
overt steps and actions to deceive her by going through the process of purchase and
delivery of the real estate.
39. Plaintiff Faire relied on each step taken by each of the Defendants in
furtherance of delivery possession of the house to her. Defendants intended for the
Plaintiff to rely on their representations that they were working on carrying out the oral
gift of real estate.
40. Defendants’ false representations, including those of Defendant Kemp
have directly and proximately caused economic and other injuries to the Plaintiff.
Plaintiff seeks damages within the jurisdictional limits of this court.
41. Plaintiff seeks exemplary damages from each Defendant including
Defendant Kemp, because Plaintiff will show each acted with malice toward the
Plaintiff which entitles Plaintiff to exemplary damages under Texas civil Practice and
Remedies code section 41.003(a).
11
COUNT 3 QUID PRO QUO SEXUAL HARASSMENT
42. Plaintiff was an employee of Defendants FMP, ALL JONES and their
subsidiaries, and her duties were to serve as a personal assistant to the Defendant
Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self-
supporting divorced woman with no financial resources other than her wages. Plaintiff
also had an exemplary work history prior to working for Defendants.
43. Plaintiff raises this claim under Tex. Lab. Code Ann. §§ 21.001, .051
(West 1996), which prohibits discrimination on the basis of sex.
44. On or about January 21, 2013 Defendant Jones made sexual advances
toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical
conduct of a sexual nature. Defendant Jones’s demands escalated and the mental
abuse was so extreme that it prevented Plaintiff from defending herself.
45. Defendant Jones made it cleared to the Plaintiff that continued
employment as well as other job benefits were conditioned on her acceptance of the
continued sexual demands of Defendant Jones.
46. At the time of the harassment, Defendant Jones was the President and
CEO of the Food Management Partners, a Texas LLC. At all times, Defendant
Jones held himself out to Plaintiff and to the public, as a very powerful business man,
and owner of 150 businesses. Defendant Jones instilled fear of his financial power
on Plaintiff. There was no recourse available to the Plaintiff to complain.
12
47. Plaintiff was harmed by the physical sexual conduct perpetrated against
her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by
Defendant Jones sexual harassment. When Plaintiff was mentally well enough to,
she refused to further submit to Defendant Jones’ inappropriate requests she was
fired on or about August 31, 2014.
48. Plaintiff seeks compensatory damages for lost wages, lost benefits and
future employment opportunities based on her traumatic experience at the hand of
Defendant Jones.
49. Plaintiff seeks exemplary damages based on Defendant Jones’s history
of sexual harassment of others and including judicial admissions that he purchased a
female as if she was merely chattel.
50. Further, Plaintiff seeks exemplary damages against Defendant
Donbavand and Defendant Kemp, as her injury resulted from Defendants’ malice,
which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code
section 41.003(a).
JURY DEMAND
51. Plaintiff has demanded a jury trial and tendered the appropriate fee with her
original petition. The jury trail has been set for November 2, 2015.
13
CONDITIONS PRECEDENT
52. All conditions precedent to plaintiff’s claim for relief have been performed or
have occurred.
OBJECTION TO ASSOCIATE JUDGE
53. Plaintiff objects to the referral of this case to an associate judge
for hearing a trial on the merits or presiding at a jury trial.
PRAYER
For these reasons, Plaintiff asks that Defendants be cited to appear and
answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for
the following:
a. Exemplary damages
b. Economic and non-economic damages including, but not limited to back
pay, front pay, severance pay, specific performance regarding the gift
purchase of a home (or its monetary equivalent).
c. All the remedies afforded by Tex. Lab. Code Ann. 21.001
d. Prejudgment and postjudgment interest.
e. Court costs.
f. Reasonable and necessary Attorney’s fees
g. All other relief to which Plaintiff is entitled.
14
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argyle2@sbcglobal.net
By: /s/ Olga Brown_________
OLGA BROWN
State Bar No. 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 19th day of June 2015, in accordance with the
TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Fifth Amended Original Petition was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
15
Appendix 10
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO DEFENDANT KEMP’S RULE 91a
MOTION TO DISMISS and REQUEST FOR ATTORNEY FEES
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES PLAINTIFF CEARTH FAIRE, who respectfully requests this
court to deny Defendant Jason Kemp’s Motion to Dismiss pursuant to Texas Rule of
Civil Procedure 91a, and in support of such request Plaintiff would show the court
she has properly plead her claims against Defendant Kemp, and would show as
follows:
I. Introduction and Background
Defendant Jason Kemp, is Co-Founder, and Chief Financial Officer, and one of
the Owners of the Defendant Corporations. Kemp holds himself out to the public as
being extremely experienced in finance, accounting and corporate IT accounting.
As such, Defendant Kemp was well aware of Defendant Jones’ business and
personal activities, which included details of Plaintiff’s compensation and
Defendant Jones’ disparaging treatment of females, including, but not limited to a
judicial admission in a Bexar County District Court by Jones of having purchased a
female in the Dominican Republic for his own needs. Defendant Kemp is strictly
liable for Quid Pro Quo Harassment because he is well aware Defendant Jones
used his actual authority to harass Plaintiff.
Defendant Kemp, as Chief Financial Officer, is aware of Defendant Jones’
demands of Plaintiff to work for approximately five months to assist him in his
divorce defense, by caring for his infant child on a 24 hour basis, in addition to her
other job duties. The demands are in violation of well established wage and hour
laws. Defendant Kemp, as Chief Financial Officer condones Defendant Jones’
“human trafficking” as judicially admitted.
Defendant Kemp, as Chief Financial Officer, is well aware that wages owed to
Plaintiff under the Fair Labor Standards Act, Wage and Hour Division, exceed the
value of the house that Defendant Jones gifted Plaintiff. Plaintiff contends the wages
owed to her are approximately $153,162.98. Defendant Kemp, as Chief Financial
Officer, is also well aware that improper deductions were made from Plaintiff’s
wages, in violation of the Texas Payday Law. See Exhibit A incorporated herein in
its entirety.
2
Notwithstanding that, a trial judge has dismissed Plaintiff’s claim of oral
gift of real estate against Defendant Jones and Defendant Peter Donbavand,
Defendant Kemp has liability independent of the other Defendants for fraud.
It is well-established that fraud can be the basis of a conspiracy claim.
Defendant Kemp perpetrated fraud against Plaintiff by denying her fair and just
compensation and the pretext she was getting Kemp House.
II. Plaintiff Has Amended Petition Upon Which Motion is Based
Plaintiff Faire has timely filed an amended petition addressing all the complaints
contained in the Defendants’ Amended Rule 91a Motion. Plaintiff has again
succinctly addressed all elements of each and every cause of action and supports
allegations with facts that “a reasonable person could believe the facts plead” . Tex
R Civ P 91a.1.
Plaintiff would further show that “if the allegations, taken as true, together with
inferences reasonably drawn from them” would entitle her to present her case to a
trier of fact and secure a judgment for the three causes of action filed against
Defendant Kemp, in the capacity he has been sued. Tex R Civ P 91a.1.
By his Rule 91 a Motion, Defendant Kemp challenges Plaintiff’s claim for an
oral gift of real estate, which Plaintiff would show is enforceable by equity, since the
legal and factual requirements of the three elements for enforcement have been
plead.
Defendant also challenged the claim of conspiracy between Defendants Kemp,
Jones and Donbavand. All of these Defendants were acting outside the course
and scope of the corporate business and for their personal purposes, and therefore,
are not entitled to defend based on Intra-Corporate Immunity Doctrine. Rule 91a
expressly prevents a court from considering evidence in making its determination of
a Rule 91a motion. Tex. R. Civ. P. 91a.6. The question in deciding whether a claim
has a basis in law is whether “the allegations state a cause of action.” See Scott v.
Gallagher, 209 S.W.3d 262, 266 (Tex .. App-Houston [1st Dist.] 2006, no pet); see
also Hamilton v Pechacek, 319 S.W.3d 801, 809 (Tex App -Fort Worth 2010, no pet)
(claim has arguable basis in Iaw unless claim presents an "indisputably meritless
legal theory").
Plaintiff’s claim for sexual harassment falls within the protection of employees
by statute: Tex. Lab. Code Ann Chapter 21, which is “designed with the objective to
carry out the purposes of Title VII of Civil Rights Act of 1964, including its prohibition
of discrimination on the basis of sex.” The Texas Workforce Commission has
accepted her claim of sexual discrimination against Defendants FMP, ALL JONES,
LLC, Jones and including Kemp.
III. Arguments & Authorities Supporting Denial of Motion
A. An oral gift of real estate is an equitable exception to the Statute of Frauds:
Plaintiff would show “It is well settled that, notwithstanding the requirements of
the statute of frauds, a parol gift of real estate will be enforced in equity upon
4
establishment of the fact of (1) a present gift; (2) possession under the gift taken and
held by the donee with consent of the donor; and (3) permanent and valuable
improvements made on the premises by donee in reliance of the gift with the
knowledge and consent of the donor. To establish an oral gift of real property,
Plaintiff merely must show: (1) a present gift to her by Jones; (2) that she took
immediate possession of the described property with Jones’ consent; and (3) she
made permanent and valuable improvements to the described property with Jones’
knowledge and consent.” McCuen v. Huey, 255 S.W.3d 716, 726-727 (Tex. App. -
Waco 2008); Flores v. Flores, 225 S.W.3d 651, 655 (Tex. App.– El Paso 2006, pet.
denied); see also Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191, 192-93
(1951) (citing Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921)).
Plaintiff’s claims for oral gift of real estate began with Defendant Kemp being
the original co-actor in the gifting. Kemp’s wife inherited the property the subject of
this lawsuit and used such property to defraud Plaintiff. See Exhibit B.
B. Plaintiff’s Claim of Sexual Harassment is Authorized by TCHRA
For Defendant Kemp to assert that he is merely an “employee” is ludicrous, as
he is co-founder and co-owner of the defendant companies, by whom Plaintiff was
employed, and as such, has strict liability for the harassment. Further, Defendant
Kemp was a manager of Plaintiff, and as such, knew or should have known of the
harassment.
Plaintiff has properly plead her claim of sexual harassment and/or
discrimination pursuant to the TCHRA and her claim has been accepted by the
Texas Workforce Commission Civil Rights Division, and the EEOC.
IV. Res Judicata Is Not Applicable to Defendant Kemp
Plaintiff’s claims against Defendant Kemp are not barred by the doctrine of Res
Judicata. Defendant Kemp was not a party to the trial court’s ruling of dismissal of
Plaintiff’s claims for oral gift of real estate. The prior ruling, which will definitely be
appealed, does not dismiss Defendant Kemp. Kemp, as CFO and monitoring all
finances is liable to the Plaintiff.
V. Faire’s Claim of Fraud as it Relates to Oral Gift of Real Estate
Is Valid and Enforceable
Defendant Kemp, as Co-owner, Co-Founder, and Chief Financial Officer
assumed liability for the fraudulent scheme of Defendant Jones, the CEO and co-
owner, by providing the home Plaintiff Faire was to accept as an oral gift of real
estate to reduce or disallow the wages and expenses due her from employment
services in the Dominican Republic which was a 24/7 care of Jones’ infant.
Defendant Kemp, as Chief Financial Officer, knew of other employment law
violations that harmed Plaintiff Faire.
6
VI. Standard of Review Met
Plaintiff has given Defendant Kemp, “ fair notice” of her claims against him,
fraud, conspiracy and strict liability for the quid pro quo sexual harassment by the
CEO and co-owner/business partner Defendant Jones.
The bar for avoiding dismissal by Texas Rule of Civil Procedure 91a is very
minimum. All of Plaintiff’s claims are valid causes of action in Texas. The facts
available to the Plaintiff support her claims. Defendant Kemp has failed to timely
object to the discovery requests of the Plaintiff, and therefore has waived all
objections.
Plaintiff Faire asserts that once the email traffic between Defendant Kemp, the
CFO and Defendant Jones, the CEO is provided, this court will find liability, and find
support for exemplary damages against Defendant Kemp.
CONCLUSION & PRAYER
Plaintiff Faire’s claims against Defendant Kemp are properly plead and
supported by facts or inferences thereof that would support a denial of the
Defendant’s Rule 91a request for dismissal.
Plaintiff Faire’s claims against Defendant Kemp for quid pro quo sexual
harassment are actionable in that he knew Defendant Jones used the actual
authority of the Defendant Corporations to harm the Plaintiff.
Plaintiff Faire asserts that everyone who has been seriously harmed
as Plaintiff has been, deserves her day in court. Plaintiff relied on the fraudulent
representations made by Defendant Kemp, the Chief Financial Officer, and she has
been harmed by all Defendant parties in this lawsuit.
Defendant Kemp’s complaints as alleged in the Rule 91a Motion are not valid,
and in some instances moot. Defendant Kemp cannot complain about the oral gift of
real estate because the pleading requirements have been factually met and properly
plead.
Defendant Kemp has a personal grudge in denying the oral gift of real estate,
namely retaliation, Defendant Kemp has a personal purpose of financial gain. His
concerted actions are definitely outside the course and scope of the corporate
business.
Plaintiff has properly pled her claim of sexual harassment/retaliation and the
claim under TCHRA has been accepted. Mediation of this claim has been extended
to the parties. Defendants declined to mediate.
Plaintiff asserts that if Defendant Kemp insists on going forth with his Rule 91a
Motion, this Court will find it is groundless and frivolous. Plaintiff seeks attorney fees
and costs accordingly.
8
Plaintiff prays this court deny the motion and grant all other and further relief to
which she is entitled.
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argyle2@sbcglobal.net
By: /s/ Olga Brown_________
OLGA BROWN
State Bar No. 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 16th day of June 2015, in accordance with the
TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Response to Defendant Kemp’ 91a Motion to Dismiss and
Request for Attorneys Fees was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
EXHIBIT
DurEA4-41 BIT Aub ***
IX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000000668
Check Date: 5/23/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 800.00 15,769.20
GROSS PAY $1,576.92 $15,769.20
DENTAL DENTAL INSURANCE $10.28 102.80
HEMP HEALTH EMPLOYEE ONLY $38,50 385,00
LOAN LOAN REPAYMENT $99.97 99.97
TOTAL DEDUCTIONS $148.75 $587.77
Federal Tax $176.00 1,760.00
FICA Social Security Tax $9474 947.45
FICA Medicare Tax $22.16 221.58
TAXES WITHHELD $292.90 $2,929.03
NET PAY $1,135.27 $12,252.40
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $1,135.27 Sick Balance 0.00
DEF-CF-00658
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000000710
Check Date: 6/6/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 880.00 17,346.12
GROSS PAY $1,576.92 $17,346.12
DENTAL DENTAL INSURANCE $10.28 113.08
HEMP HEALTH EMPLOYEE ONLY $38,50 423.50
LOAN LOAN REPAYMENT $99.97 199.94
TOTAL DEDUCTIONS $148.75 $736.52
Federal Tax $176.00 1,936.00
FICA Social Security Tax $94.75 1,042.20
EXHIBIT A
FICA Medicare Tax $22.16 243.74
TAXES WITHHELD $292.91 $3,221.94
NET PAY $1,135.26 $13,387.66
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation. Balance 0.00
111000025 586034451754 $1,135.26 Sick Balance 0.00
DEF-CF-00659
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
FAIRE, CEARTH Employee ID: REDACTED
8647 TIMBER PLACE SSN:
Check Number: DD000000000000000758
Check Date: 6/20/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 960.00 18,923.04
GROSS PAY $1,576.92 $18,923.04
DENTAL DENTAL INSURANCE $10.28 123.36
HEMP HEALTH EMPLOYEE ONLY $38.50 462.00
LOAN LOAN REPAYMENT $99.97 299.91
TOTAL DEDUCTIONS $148.75 $885.27
Fecieral Tax $176.00 2,112.00
FICA Social Security Tax $94.74 1,136.94
EXHIBIT A
FICA Medicare Tax $22.15 265.89
TAXES WITHHELD $292.89 $3,514.83
NET PAY $1,135.28 $14,522.94
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451734 $1,135.28 Sick Balance 0.00
DEF-CF-00660
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN.
Check Number: DD000000000000000829
Check Date: 7/3/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 1,040.00 20,499.96
GROSS PAY $1,576.92 $20,499.96
DENTAL DENTAL INSURANCE $10.28 133.64
HEMP HEALTH EMPLOYEE ONLY $38.50 500.50
LOAN LOAN REPAYMENT $99.97 399.88
TOTAL DEDUCTIONS $148.75 $1,034.02
Federal Tax $176.00 2,288.00
FICA Social Security Tax $94.75 1,231.69
EXHIBIT A
FICA Medicare Tax $22.16 288.05
TAXES WITHHELD $292.91 $3,807-74
NET PAY $1,135.26 $15,658.20
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $1,135.26 Sick Balance 0.00
DEF-CF-00661
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000000841
Check Date: 7/18/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY 841,000.00 80.00 $1,576.92 1,120.00 22,076.88
GROSS PAY $1,576.92 $22,076.88
DENTAL DENTAL INSURANCE $11.31 144.95
HEMP HEALTH EMPLOYEE ONLY $63.26 563.78
LOAN LOAN REPAYMENT $99.97 499.85
TOTAL DEDUCTIONS $174.56 $1,208.58
Federal Tax $172.13 2,460.13
FICA Social Security Tax $93.14 1,324.83
..M_-_ -±taLRX3_
EXHIBIT A
FICA Medicare Tax $21.79 309.84
TAXES WITHHELD $287.06 $4,094. 80
NET PAY $1,115.30 $16,773.50
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $1,115.30 Sick Balance .0.00
DEF-CF-00662
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000000884
Check Date: 8/1/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 1,200.00 23,653.80
GROSS PAY $1,576.92 $23,653.80
DENTAL DENTAL INSURANCE $11.31 156.26
HEMP HEALTH EMPLOYEE ONLY $63.28 627.06
LOAN LOAN REPAYMENT $99.97 599.82
TOTAL DEDUCTIONS $174.56 $1,383.14
Federal Tax $172.13 2,632.26
FICA Social Security Tax $93.14 1,417_97
EXHIBIT A
FICA Medicare Tax $21.78 331.62
TAXES WITHHELD $287.05 $4,381.85
NET PAY $1,115.31 $17,888.81
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $1,115.31 Sick Balance 0.00
DEF-CF-00663
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000000928
Check Date: 8/15/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 1,280.00 25,230.72
GROSS PAY $1,576.92 $25,230.72
DENTAL DENTAL INSURANCE $11.31 167.57
HEMP HEALTH EMPLOYEE ONLY $63.28 690.34
LOAN LOAN REPAYMENT $99.97 699:79
TOTAL DEDUCTIONS $174.56 $1,557.70
Federal Tax $172.13 2,804.39
FICA Social Security Tax $93.15 1,511.12
EXHIBIT A
FICA Medicare Tax $21.78 353.40
TAXES WITHHELD $287.06 $4,668.91
NET PAY $1,115.30 $19,004.11
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $1,115.30 Sick Balance 0.00
DEF-CF-00664
*** Dupllcate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000001010
Check Date: 8/29/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $45,000.00 80.00 $788.42 1,400.00 26,884.51
GROSS PAY $788.42 $26,884.51
DENTAL DENTAL INSURANCE $11.31 178.88
HEMP HEALTH EMPLOYEE ONLY $63.28 753.62
LOAN LOAN REPAYMENT $99.97 799.76
TOTAL DEDUCTIONS $174.56 $1,732.26
Federal Tax $53.85 2,934.82
FICA Social Security Tax $44.26 1,609.03
EXHIBIT A
FICA Medicare Tax $10.35 376.30
TAXES WITHHELD $108.46 $4,920.15
NET PAY $505.40 $20,232.10
Direct Deposit Information Time Off 'Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $505.40 Sick Balance 0.00
DEF-CF-00666
*** Duplicate Pay Stub ***
TX Alamo Business Group, LLC
REDACTED
FAIRE, CEARTH Employee ID:
8647 TIMBER PLACE SSN:
Check Number: DD000000000000001021
Check Date: 9/5/2014
SAN ANTONIO TX 78250
Current Year-To-Date
Code Description Pay Rate Hours Amount Hours Amount
SALARY SALARIED PAY $45,000.00 40.00 $865.37 1,440.00 27,749.88
GROSS PAY $865.37 $27,749.88
DENTAL DENTAL INSURANCE $0.00 178.88
HEMP HEALTH EMPLOYEE ONLY $0.00 753.62
LOAN LOAN REPAYMENT $199.94 999.70
TOTAL DEDUCTIONS- $199.94 $1,932.20
Federal Tax $76.58 3,011.40
FICA Social Security Tax $53.65 1,662.68
EXHIBIT A
FICA Medicare Tax $12.55 388.85
TAXES WITHHELD $142.78 $5,062.93
NET PAY $522.65 $20,754.75
Direct Deposit Information Time Off Balance Hours
Bank Account Amount Vacation Balance 0.00
111000025 586034451754 $522.65 Sick Balance 0.00
DEF-CF-00667
Mona Flores
Sent: Thursday, October 09, 2014 3:05 PM
To: Allen Jones
Subject: FW: Cearth Deductions
Attachments: Copy of cearth xlsx
FYI —Cearth's next car payment is not until 11/1. Tiffany pulled October's payment out of her last check thinking it was
September's. We will try ACH'ing her next payment out on 11/1 and if we cannot get it, we will default her and repossess the
car
As for the house, Cearth's eviction hearing is scheduled for next week Olga sent another letter basically stating Cearth owned
the house because it was promised which is laughable.
Peter Donbavand
Vice President
Real Estate & Business Development
Food Management Partners
210-403-3725 ext 218
pdonbavand@foodmps.com
Confidentiality: The information contained in this e-mail and any attachments to it is privileged, confidential, and protected
from disclosure. If you are not the intended recipient, you are hereby notified that any dissemination, distribution or duplication
of this communication is strictly prohibited If you have received this communication in error, please notify the sender
immediately, and delete it from your network server and/or hard drive.
From: Peter Donbavand
Sent: Thursday, October 09, 2014 9:52 AM
To: Bob Amaro
Cc: Nathan Calvert
Subject: RE: Cearth Deductions
No, the information provided is sufficient It looks like Tiffany took Cearth's Oct payment on 9/5 (which she really shouldn't
have done but hopefully Cearth's attorney doesn't catch it so she does not owe All Jones, LLC any money until 11/1 The
attached is not perfect but is close enough. Cearth has paid about $1,600 to date which is what she should have paid through
Oct to date. We will have to wait until 11/1 to try ACH'ing the next payment from her account
Peter Donbavand
Vice President
Real Estate & Business Development
Food Management Partners
210-403-3725 ext 218
pdonbavand@foodmps.com
Confidentiality: The information contained in this e-mail and any attachments to it is privileged, confidential, and protected
from disclosure If you are not the intended recipient, you are hereby notified that any dissemination, distribution or duplication
of this communication is strictly prohibited If you have received this communication in error, please notify the sender
immediately, and delete it from your network server and/or hard drive
6/16/2015
EXHIBIT B
PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC) 12-05-11
(NOTICE: For use only when BUYER occupies the property for no more than 90 days PRIOR the closing)
tqU~L
HOUSING
QPPO/IlUNJTY BUYER'S TEMPORARY RESIDENTIAL LEASE
1. PARTIES: The parties to this Lease are_ _:Tc..: a: . ra:: . . :. .K:. : :e: . :m. :.cp::.___ _ _ _ _ _ _ _ _ _ _ _ _ _=----,-,,-
(Landlord) and Ceartb Faire (Tenant).
2. LEASE: Landlord leases to Tenant the Property described in the Contract between Landlord as Seller
and Tenant as Buyer known as 9647 Timber Place San Antonio TX
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (address).
3. TERM: The term of this Lease commences July 30, 2014 and terminates as
specified in Paragraph 18.
4. RENTAL: Rental will be$ 40.00 per day. Upon commencement of this Lease, Tenant shall
pay to Landlord the full amount of rental of$ 1,200 00 for the anticipated term of the Lease
(commencement date to the Closing Date specified in Paragraph 9 of the Contract). If the actual term
of this Lease differs from the anticipated term, any additional rent or reimbursement will be paid at
closing. No portion of the rental will be applied to payment of any items covered by the Contract.
5. DEPOSIT: Tenant has paid to Landlord $ 0.00 as a deposit to secure performance
of this Lease by Tenant. If this Lease is terminated before the Closing Date, Landlord may use the
deposit to satisfy Tenant's obligations under this Lease. Landlord shall refund to Tenant any unused
portion of the deposit together with an itemized list of all deductions from the deposit within 30 days
after Tenant (a) surrenders possession of the Property and (b) provides Landlord written notice of
Tenant's forwarding address. If this Lease is terminated by the closing and funding of the sale of the
Property, the deposit will be refunded to Tenant at closing and funding.
NOTICE: The deposit must be in addition to the earnest money under the Contract.
6. UTILITIES: Tenant shall pay all utility connections, deposits and charges except-;--,----;-;-~:--:;-----
none , which Landlord shall pay.
7. USE OF PROPERTY: Tenant may use the Property only for residential purposes. Tenant may not
assign this Lease or sublet any part of the Property.
8. PETS: Tenant may not keep pets on the Property except -""b'"-'"rd,.___ _ _ _ _ _ _ _ _ _ _ _ __
9. CONDITION OF PROPERTY: Tenant accepts the Property in its present condition and state of repair,
but Landlord shall make all repairs and improvements required by the Contract. If this Lease is
terminated prior to closing, Tenant shall surrender possession of the Property to Landlord in its present
condition, as improved by Landlord, except normal wear and tear and any casualty loss.
10.ALTERATIONS: Tenant may not: (a) make any holes or drive nails into the woodwork, floors, walls or
ceilings (b) alter, paint or decorate the Property or (c) install improvements or fixtures without the prior
written consent of Landlord. Any improvements or fixtures placed on the Property during the Lease
become a part of the Property.
11.SPECIAL PROVISIONS:
12.INSPECTIONS: Landlord may enter at reasonable times to inspect, replace, repair or complete the
Improvements. Tenant shall provide Landlord door keys and access codes to allow access to the
Property during the term of the Lease.
13.LAWS: Tenant shall comply with all applicable laws, restrictions, ordinances, rules and regulations with
respect to the Property.
14.REPAIRS AND MAINTENANCE: Except as otherwise provided in this Lease. Tenant shall bear all
expense of repairing, replacing and maintaining the Property, including but not limited to the yard,
trees. shrubs, and all equipment and appliances, unless otherwise required by the Texas Property
Code. Tenant shall promptly repair at Tenant's expense any damage to the Property caused directly or
indirectly by any act or omission of the Tenant or any person other than the Landlord, Landlord's
agents or invitees.
TREC NO. 16-5
EXHIBIT B
Buyer's Temporary Residential Lease_ _"'9"'-64_,_7L......!T.....,im_,_,_,b"e._r~.._PJ.>Ia,_,c"e~S=acun'-'-A--"n-'-'t"'o'-'n,_,io'-'-'T-'-X_,___ _ _ _ _ _ Page 2 of 2 12-05-11
(Address of Property)
15.INDEMNITY: Tenant indemnifies Landlord from the claims of all third parties for injury or damage to
the person or property of such third party arising from the use or occupancy of the Property by Tenant.
This indemnification includes attorney's fees, costs and expenses incurred by Landlord.
16.INSURANCE: Landlord and Tenant shall each maintain such insurance on the contents and Property as
each party may deem appropriate during the term of this Lease. NOTE: CONSULT YOUR INSURANCE AGENT;
POSSESSION OF THE PROPERTY BY BUYER AS TENANT MAY CHANGE INSURANCE POLICY COVERAGE.
17 .DEFAULT: If Tenant fails to perform or observe any provision of this Lease and fails, within 24 hours after
notice by Landlord, to commence and diligently pursue to remedy such failure, Tenant will be in default.
18.TERMINATION: This Lease terminates. upon (a) closing and funding of the sale under the Contract, (b)
termination of the Contract prior to dosing, (c) Tenant's default under this Lease, or (d) Tenant's default under
the Contract, whichever occurs first. Upon termination other than by closing and funding of the sale, Tenant
shall surrender possession of the property.
19.HOLDING OVER: Any possession by Tenant after termination creates a tenancy at sufferance and will not
operate to renew or extend this Lease. Tenant shall pay $ 100 per day during the period of any
possession after termination as damages, in addition to any other remedies to which Landlord is
entitled.
20.ATTORNEY'S FEES: The prevailing party in any legal proceeding brought under or with respect to this lease is
entitled to recover from the non-prevailing party a!l costs of such proceeding and reasonable attorney's
fees.
21.SMOKE ALARMS: The Texas Property Code requires Landlord to install smoke alarms in certain locations
within the Property at Landlord's expense, Tenant expressly waives Landlord's duty to inspect and repair
smoke alarms.
22.SECURITY DEVICES: The requirements of the Texas Property Code relating to security devices do not
apply to a residential lease for a term of 90 days or less.
23.CONSULT YOUIIR ATTORNEY: Real estate licensees cannot give legal advice. This Lease is intended to be
legally binding. READ IT CAREFULLY. If you do not understand the effect of this Lease, consult your attorney
BEFORE signing.
24.NOTICES: All notices from one party to the other must be in writing and are effective when mailed to,
hand-delivered at, or transmitted by facsimile or electronic transmission as follows:
To Landlord: To Tenant:
--------------------------
Tara Kemp 9647 Timber Place
120 Chula Vista San Antonio, TX
San Antonio, TX 78232=------~----
Telephone: ( ) Telephone: _,(__L._)_ _ _ _ _ _ _ __
Facsimile: __,.i__ __L)_ _ _ _ _ _ _ _ _ __ Facsimile: ( )
~--~----------------------
E-mail: E-mail:
-~·I ---1 ~
````( J:r::?
Landlord Tenant
· The form of this contract has been approved by the Texas Real Estate Commission. TREC forms are intended for use only by trained real estate I
licensees. No representation is made as to the legal validity or adequacy of any provision In any specific transactions. It Is not intended for !
complex transactions. Texas Real Estate Commission, P.O. Box 12188, Austin, TX 78711-2188, 512-936·3000 (http://www.trec.texas.gov) TREC
NO. 16-5. This form replaces TREC NO. 16·4.
·------------·-·········-···········-····--··----·----·····---··--·····--·······-----·······--··--·---·-·-·------·--···-···--···--·-···-·-··-----------'
TREC NO. 16-5
Appendix 11
Appendix 12
Appendix 13
Appendix 14
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S FOURTH AMENDED ORIGINAL PETITION
Plaintiff, Cearth Faire, files this Fourth Amended Original Petition against
defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners,
LLC, ALL JONES, LLC, Allen J Jones, Peter Donbavand and Jason Kemp, and
alleges as follows:
DISCOVERY-CONTROL PLAN
1. A Level Three Agreed Docket Control Order is in place, this matter is set for
Jury Trial November 2, 2015.
CLAIM FOR RELIEF
2. Plaintiff seeks monetary relief over $200,000.00 but not more than
$3,000,000.00.
PARTIES
3. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place,
San Antonio, TX 78250.
4. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD
MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company
conducting business in the State of Texas, and has been served and is represented by
counsel, and is properly before this court.
5. Defendant ALL JONES, LLC is an active Texas Limited Liability
Company conducting business in the State of Texas, and has been served and is
represented by counsel, and is properly before this court
6. Defendant Allen J Jones, is an individual who has been served and is
represented by counsel, and is properly before this court.
7. Defendant Peter Donbavand, is an individual has been served and is
represented by counsel, and is properly before this court.
8. Defendant Jason Kemp is an individual whose business address is
Food Management Partners, LLC 120 Chula Vista, San Antonio, TX 78232. He may
be served at this address, or wherever he may be found.
JURISDICTION
9. The Court has subject-matter jurisdiction over the lawsuit because the
amount in controversy exceeds this Court’s minimum jurisdictional requirements.
2
VENUE
10. Venue is proper in Bexar County as all or a substantial part of the events or
omissions giving rise to the claim occurred in Bexar County.
FACTS
11. Plaintiff Faire was an employee of Defendants, as well as a personal
assistant to Defendant Jones. Plaintiff, in addition to working for Defendants’
businesses, also took care of Defendant Jones’ personal matters, including living in
the Dominican Republic for approximately five months on a 24/7 basis assisting in his
defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been
properly compensated.
12. Defendant Jones, individually, in recognition for her loyal and tireless
services personal to him, promised Plaintiff a home. Defendant Jones developed a
scheme for his purchase of the house that included telling other corporate officers that
Plaintiff’s pay increase was for the house payments. Defendant Jones intended to hide
his gift from the other Defendants named in this lawsuit, until he retaliated against
Plaintiff by denying he had made a gift of real estate to Plaintiff.
13. Defendant Jones, in his individual capacity, negotiated with Defendant
Jason Kemp, whose wife owned the residence at 8647 Timber Pl, San Antonio, TX
78250. Defendant Jones then instructed, Defendant Donbavand, in his individual
capacity and outside the scope of corporate business to prepare the necessary
documents so he, Jones could purchase the residence for the Plaintiff.
14. Defendant Donbavand, while a business partner of Defendant Jones and
also an agent of Defendant FMP, routinely served Defendant Jones as a personal
aide and routinely took orders from Jones outside the course and scope of his duties
with the corporate entities to meet the personal demands of Defendant Jones,
notwithstanding if the corporate best interests were served.
15. Defendant Kemp, also a business partner of Defendant Jones, took orders and
assumed duties outside the course and scope of the corporate entities upon demand
from Defendant Jones the President & CEO of Defendant FMP. Defendant Jones
treats the corporate entities as his “piggy bank” and Defendants Donbavand and
Kemp, as his personal aides.
16. Defendant Kemp routinely succumbs to the personal demands of
Defendant Jones outside the best interests of the corporate business as in this case to
sell him the residence at 8647 Timber Pl, San Antonio, TX 78250, so he could gift the
property to the Plaintiff in consideration for her assisting in his personal legal matters.
17. While Defendant Donbavand was completing the necessary
documents, again outside the course and scope of corporate business, Defendant
Jones requested that Plaintiff move into the house, orally gifting her the house, a
present gift. Plaintiff in reliance of his oral promised moved into the house with the
consent of Defendant Kemp and the request of Defendant Jones and made valuable
and permanent improvements in reliance of Defendant Jones promise to her.
4
18. Plaintiff incurred moving expenses as well as expenses in making
permanent improvements to the residence to make it habitable. The residence is still
in need of significant repairs. An inspection was ordered by the defendants as further
proof of Defendant Jones’ purchase with intention to make a gift.
19. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent
promotion based on meritorious work.. Defendant Jones demanded the other
defendants Defendant Peter Donbavand and Defendant Jason Kemp evict Plaintiff
from the house he had given her. The wrongful eviction proceedings were abated,
as the justice of the peace court lacks jurisdiction to rule on the petition for eviction in
that title to the property is at issue. The wrongful eviction proceedings are outside the
course and scope of corporate business.
20. Defendants continued to harass the Plaintiff by wrongfully repossessing
her car. Plaintiff had clear title to her 2005 Mini Cooper. Jones promised to repair
her car. An ambiguous payment plan was put in place. However, in retaliation for
claiming her rightful title to her house, Jones has deprived Plaintiff of a necessity, of
transportation to seek employment. During the repossession process, Jones
terrorized her by sending strangers to ring her doorbell, all while he owns a million
dollars worth of automobiles, and spends a great deal of his time in the Dominican
Republic.
21. Plaintiff had an exemplary employment record before being hired by
Defendants FMP and ALL JONES, LLC. Immediately before being fired by
Defendants, Faire had been given a raise in pay and been entrusted with additional
duties. Plaintiff was fired solely because Plaintiff refused to continue to perform
employment duties that were not in furtherance of the corporate business and
because of Defendant Jones’ demands for demeaning sexual acts and explicit threats
to fire her if she didn’t submit.
22. Plaintiff seeks actual damages as a result of the sexual harassment and
discrimination, which include, but are not limited to back pay from the date of quid pro
quo retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and
benefits including the repossession of her automobile lost as a result of her unlawful
termination.
23. Plaintiff also seeks damages for past and future mental anguish as a
result of Defendant Jones explicitly forcing her to choose between the sexual abuse
he was demanding of her and her livelihood.
24. Defendant Jones acted with malice toward Plaintiff in that Jones
exhibited conscious indifference to consequences Plaintiff might suffer separate and
apart from the damages suffered as a result of the retaliation. Defendant Jones, as
President and CEO, has inflicted additional injuries by circulating malicious rumors
about the Plaintiff at corporate headquarters. Plaintiff therefore seeks exemplary
damages.
6
COUNT 1- ORAL GIFT OF REAL ESTATE
25. On or about March 27, 2013, when Plaintiff Faire was temporarily living
in the Dominican Republic at the request of Defendant Jones, taking care of Jones’
child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home
and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas.
26. On or about July 20 2014, Plaintiff moved into the house at 8647 Timber
Pl, San Antonio, Texas 78250, that Defendant Jones gifted her in his individual
capacity but with the knowledge and consent of all Defendants. Plaintiff is still
living at her home, taking possession under the present gift.
27. Plaintiff has made permanent and valuable improvement to the home
based on the reliance of the gift made to her by Defendant Jones as an individual.
28. It was reasonable for Plaintiff to rely on Defendant Jones’ promise of an
oral gift of real estate based on Defendant Jones’ financial resources, including but
not limited to ownership in franchises of Zio’s Italian Kitchen, Buffalo Wild Wings,
Don Pablo’s Big Tex Bold Mex, Furr’s, Little Ceasar’s and Smashburger.
29. Further, Defendant Jones boasts of having presently one million dollars
worth of cars and extensive real estate holdings in the state. In other judicial
proceedings, Defendant Jones bragged about owning 150 businesses and having
financial resources to “buy” a young lady from a brothel for $10,000.00 in the
Dominican Republic where he also has extensive real estate holdings.
30. Defendant Jones informed the Plaintiff that he was buying the house from
Defendant Kemp, and that at closing, he would give her full title and interest to the
home. Defendants Jones further promised the closing would take place immediately
upon the reaching of an agreement on the final price and other terms. A final
purchase price was reached between Defendant Jones and Defendant Jason Kemp.
All terms for the sale of the house were reached by buyer and seller, and having
absolutely nothing to do with the business of the corporate entities, parties herein
31. Defendant Jones negotiated all the terms of the real estate purchase to
make a present gift of real estate to Plaintiff. Defendant Jones, Defendant Kemp,
and Defendant Donbavand knew the house located at 8647 Timber Pl, San Antonio,
TX 78250 purchased from Kemp’s wife, Tara Kemp, was a gift of real estate to the
Plaintiff. Defendant Donbavand ordered an inspection of the home in furtherance of
a prompt closing, all outside of the course and scope of corporate business..
32. Defendant Jones made this gift to Plaintiff as an individual and not as
President & CEO of the other corporate defendants. Defendant Jones purchased
the home from Defendant Kemp as an individual and not as a transaction within the
course and scope of corporate business.
33. Defendant Jones ordered Defendant Donbavand to complete the
necessary documentation and transactions outside the course and scope of
8
corporate business. Defendant Donbavand routinely acts as Defendant Jones’
personal aide to carry out his orders regarding personal matters. Defendant
Donbavand is experienced in real estate transactions and worked to completing the
necessary documents. In the meantime, in a fit of retaliation, Defendant Jones
changed his mind about the gift. Plaintiff has been living in the house for eight
months.
34. Plaintiff asserts this oral gift of real estate must be enforced in equity as
the facts herein establish a gift of real estate, notwithstanding the requirements of
the statute of frauds.
COUNT 2 – Conspiracy
35. Defendants Peter Donbavand and Jason Kemp, as individuals acting
outside their corporate duties, assisted Defendant Jones in conduct which they knew
amounted to a commission of a tort or wrongful acts against the Plaintiff, and
specifically acting to rescind the oral gift of real estate to Plaintiff
36. Defendant Donbavand and Defendant Kemp acted with intent to assist
Defendant Jones in his wrongful acts toward Plaintiff of attempting to rescind the
present gift of real estate.
37. Defendant Donbavand and Defendant Kemp’s assistance to Defendant
Jones and their own related conduct was a substantial factor in the breach of the
present gift Defendant Jones made to Plaintiff.
COUNT 3 QUID PRO QUO SEXUAL HARASSMENT
38. Plaintiff was an employee of Defendants FMP, ALL JONES and their
subsidiaries, and her duties were to serve as a personal assistant to the Defendant
Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self-
supporting divorced woman with no financial resources other than her wages. Plaintiff
also had an exemplary work history prior to working for Defendants.
39. Plaintiff raises this claim under Tex. Lab. Code Ann. §§ 21.001, .051
(West 1996), which prohibits discrimination on the basis of sex.
40. On or about January 21, 2013 Defendant Jones made sexual advances
toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical
conduct of a sexual nature. Defendant Jones’s demands escalated and the mental
abuse was so extreme that it prevented Plaintiff from defending herself.
41. Defendant Jones made it cleared to the Plaintiff that continued
employment as well as other job benefits were conditioned on her acceptance of the
continued sexual demands of Defendant Jones.
42. At the time of the harassment, Defendant Jones was the President and
CEO of the Food Management Partners, a Texas LLC. At all times, Defendant
Jones held himself out to Plaintiff and to the public, as a very powerful business man,
and owner of 150 businesses. Defendant Jones instilled fear of his financial power
on Plaintiff. There was no recourse available to the Plaintiff to complain.
10
43. Plaintiff was harmed by the physical sexual conduct perpetrated against
her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by
Defendant Jones sexual harassment. When Plaintiff was mentally well enough to,
she refused to further submit to Defendant Jones’ inappropriate requests she was
fired on or about August 31, 2014.
44. Plaintiff seeks compensatory damages for lost wages, lost benefits and
future employment opportunities based on her traumatic experience at the hand of
Defendant Jones.
45. Plaintiff seeks exemplary damages based on Defendant Jones’s history
of sexual harassment of others and including the purchase of a female as if she was
merely chattel.
46. Further, Plaintiff seeks exemplary damages against Defendant
Donbavand and Defendant Kemp, as her injury resulted from Defendants’ malice,
which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code
section 41.003(a).
JURY DEMAND
47. Plaintiff has demanded a jury trial and tendered the appropriate fee with her
original petition. The jury trail has been set for November 2, 2015.
CONDITIONS PRECEDENT
48. All conditions precedent to plaintiff’s claim for relief have been performed or
have occurred.
OBJECTION TO ASSOCIATE JUDGE
49. Plaintiff objects to the referral of this case to an associate judge for
hearing a trial on the merits or presiding at a jury trial.
PRAYER
For these reasons, Plaintiff asks that Defendants be cited to appear and
answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for
the following:
a. Exemplary damages
b. Economic and non-economic damages including, but not limited to back
pay, front pay, severance pay, specific performance regarding the gift
purchase of a home (or its monetary equivalent).
c. All the remedies afforded by Tex. Lab. Code Ann. 21.001
c. Prejudgment and postjudgment interest.
d. Court costs.
e. Reasonable and necessary Attorney’s fees
f. All other relief to which Plaintiff is entitled.
12
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argyle2@sbcglobal.net
By: /s/ Olga Brown_________
OLGA BROWN
State Bar No. 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 10th day of March 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Fourth Amended Original Petition was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
Appendix 15
Feb. 10. 2015 !2:31PM Law Office of Olga Brown No. 6792 P. I
LAW OFFICES OF OLGA BROWN
111 SOlE;DAD, SUITE 1725
SAN ANTONIO, TEXAS 78205
(21 0) 226-1550
TELECOPIER (210) 226-1884
February 11, 2015
Donna Kay McKinney
Bexar County District Court Clerk
300 Dolorosa, Suite 217
SanAntonio, Texas 78205
VACATION NOTICE
Dear Ms. McKinney:
Please accept this correspondence as notice that I will be on
vacation and unavailable for hearings, settings or trials on the following dates:
March 18, 2015 through March 25, 2015
April2, 2015 through April?, 2015
June 3, 2015 through June 12, 2015 (previously filed)
July 2, 2015 through July 7, 2015
September4, 2015 through September 9, 2015
November 24, 2015 through November 27, 2015
December 24, 2015
December 31, 2015
By copy of this letter, I am notifying all counsel of record of my
plans and asking them to please not schedule any hearings, depositions
or trials during this time
Thank you for your cooperation in this matter
ROWN
OB/mf
Vacation Letter of Olga Brown, Page I of2
Appendix 16
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S THIRD AMENDED ORIGINAL PETITION
Plaintiff, Cearth Faire, files this Third Amended Original Petition against
defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners,
LLC, ALL JONES, LLC, Allen J Jones, and Peter Donbavand, and alleges as follows:
DISCOVERY-CONTROL PLAN
1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil
Procedure 190.4 and affirmatively pleads that this suit is not governed by the
expedited-actions process in Texas Rule of Civil Procedure 169 because she may
seek injunctive relief. Plaintiff has a pending Motion for a Level Three Docket Control
Order, and the parties entered into a Rule 11 Agreement showing intent to enter into
an Agreed Docket Control Order and setting this matter for Jury Trial November 2,
2015. See Exhibit A.
CLAIM FOR RELIEF
2. Plaintiff seeks monetary relief over $200,000.00 but not more than
$3,000,000.00.
PARTIES
3. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place,
San Antonio, TX 78250.
4. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD
MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company
conducting business in the State of Texas, and has been served and is represented by
counsel, and is properly before this court.
5. Defendant ALL JONES, LLC is an active Texas Limited Liability
Company conducting business in the State of Texas, and and has been served and is
represented by counsel, and is properly before this court
6. Defendant Allen J Jones, is an individual who has been served and is
represented by counsel, and is properly before this court.
7. Defendant Peter Donbavand, is an individual has been served and is
represented by counsel, and is properly before this court.
JURISDICTION
8. The Court has subject-matter jurisdiction over the lawsuit because the
amount in controversy exceeds this Court’s minimum jurisdictional requirements.
2
VENUE
9. Venue is proper in Bexar County as all or a substantial part of the events or
omissions giving rise to the claim occurred in Bexar County.
FACTS
10. Plaintiff Faire was an employee of Defendants, as well as a personal
assistant to Defendant Jones. Plaintiff, in addition to working for Defendants’
businesses, also took care of Defendant Jones’ personal matters, including living in
the Dominican Republic for approximately five months on a 24/7 basis assisting in his
defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been
properly compensated for her services.
11. Defendant Jones, in recognition for her loyal and tireless services
assumed the role of her benefactor. In his role as a benefactor Defendant Jones
promised Plaintiff that he would buy a home and transfer ownership to Plaintiff, so she
would never have worries about a residence. Defendant Jones developed a scheme
for his purchase of the house that included telling other corporate officers that
Plaintiff’s pay increase was for the house payments. Defendant Jones intended to hide
his gift from the other Defendants named in this lawsuit. Defendants have a real
estate department as part of their businesses, and therefore, Plaintiff was further
inclined to believe his promise to purchase and transfer ownership.
12. Although Defendant Jones intended to disguise the gift of the residence
from his business partners, nevertheless he authorized for the necessary real estate
transactions to be initiated that would result in a purchase transaction and an
immediate transfer of ownership. Plaintiff relied on Defendant Jones’ promise and she
moved into the residence at 8647 Timber Place, San Antonio, Texas 78250.
13. Plaintiff incurred moving expenses as well as expenses in making
repairs to the residence to make it habitable. The residence is still in need of
significant repairs. An inspection was ordered by the defendants as further proof of
Defendant Jones’ purchase with intention to make a gift. Further, in reliance that the
home would be given to her, Plaintiff agreed to sign a one-month lease.
14. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent
promotion based on meritorious work.. Defendant Jones has now conspired with the
other defendants including Defendant Peter Donbavand to evict Plaintiff from the
house she was promised. The wrongful eviction proceedings were abated, as the
justice of the peace court lacks jurisdiction to rule on the petition for eviction.
15. Defendants continue to harass the Plaintiff by wrongfully repossessing
her car. Plaintiff had clear title to her 2005 Mini cooper. Jones promised her an
ambiguous payment plan, and in retaliation for claiming her rightful title to her house,
he has deprived Plaintiff of a necessity of transportation to seek employment. During
the repossession process, he terrorized her by sending strangers to ring her doorbell,
all while he owns a million dollars worth of automobiles, and spends a great deal of
his time in the Dominican Republic.
4
16. Plaintiff had an exemplary employment record with Defendants FMP and
ALL JONES, LLC, and had immediately before the firing, been given a raise in pay
and additional duties. Plaintiff was fired solely because Plaintiff refused to continue
perform employment duties that were not in furtherance of the corporate business but
to serve as a shield for Defendant Jones numerous illegal activities some including
sexual harassment. Defendant Peter Donbavand, a business partner of Defendant
Jones was aware of the employment violations occurring at the corporations and by
non-action, condoned the wrongful conduct of Defendant Jones.
17. Plaintiff seeks actual damages as a result of the wrongful termination,
which include, but are not limited to back pay from the date of retaliation until the date
of trial. Plaintiff also seeks future pay in lost earnings and benefits including the
repossession of her automobile lost as a result of her wrongful termination.
18. Plaintiff also seeks damages for past and future mental anguish as a
result of Defendant Jones forcing her to choose between the illegal activities he was
demanding of her and her livelihood.
19. Defendant Jones acted with malice toward Plaintiff in that Jones
exhibited conscious indifference to consequences Plaintiff might suffer separate and
apart from the damages suffered as a result of the wrongful termination. Defendant
Jones and Defendant Donbavand have inflicted additional injuries by circulating
malicious rumors about the Plaintiff, harassing the Plaintiff and other activities which
affect her future employment. Plaintiff therefore seeks exemplary damages.
COUNT 1-PROMISSORY ESTOPPEL as a CLAIM
20. On or about March 27, 2013, when Plaintiff Faire was temporarily living
in the Dominican Republic at the request of Defendant Jones, taking care of Jones’
child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home
and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas.
21. It was reasonable for Plaintiff to rely on Defendant Jones’ promise to
purchase a home and gift it to her based on Defendant Jones’ financial resources,
including his ownership of one million dollars worth of cars, and extensive property
real estate holdings in the United States, and in the Dominican Republic.
22. Defendant Jones promised the Plaintiff that he would execute a written
agreement at closing, giving her full title and interest to the home. Defendant Jones
further promised the closing would take place immediately upon the reaching of an
agreement on the final price and other terms. A final purchase price was reached
between Defendant Jones and his business partner Jason Kemp. All terms for the
sale of the house were reached by buyer and seller.
23. Defendant Jones negotiated all the terms of the real estate purchase.
Defendant Jones had reached an agreement with his business partner, Jason Kemp
to purchase the house located at 8647 Timber Place San Antonio, Texas 78250 from
Kemp’s wife, Tara Kemp. The real estate actions necessary for a closing were
initiated. Defendant Donbavand ordered an inspection of the home in furtherance of a
prompt closing.
6
24. Although there were no uncertainties regarding the purchase of the
home by Defendant Jones for the Plaintiff, there was a delay in the closing. Plaintiff
was asked to sign a one month lease pending the real estate closing. In signing the
one-month lease, Defendant Jones promised he would sign the necessary documents
to give Plaintiff full and complete ownership of the home in consideration for her loyal
efforts in assisting Defendant Jones in the defense of his suit for divorce.
25. It now appears that Defendant Jones, acting in concert with Defendant
Donbavand, who appeared in Justice of Peace court attempting to practice law without
a license, regarding this promise, made the following:
a. a false representation or concealment of material facts concerning the
real estate transaction;
b. made representation with knowledge, actual or constructive, of those
facts;
c. with the intention that it should be acted on;
d. to a party without knowledge or the means of knowledge of those facts
e. who detrimentally relied upon the misrepresentation
26. Plaintiff contends the promise to complete the transaction (closing of the
real estate) conveying title to Plaintiff is binding against Defendant Jones in order to
avoid injustice. Plaintiff further contends equitable estoppel alleged above is sufficient
to preclude the statute of fraud defense to this promise of a home to Plaintiff.
COUNT 2 QUID PRO QUO SEXUAL HARASSMENT
27. Plaintiff was an employee of Defendants FMP, ALL JONES and their
subsidiaries, and her duties were to serve as a personal assistant to the Defendant
Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self-
supporting divorced woman with no financial resources other than her wages. Plaintiff
also had an exemplary work history prior to working for Defendants.
28. On or about January 21, 2013 Defendant Jones made sexual advances
toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical
conduct of a sexual nature. Defendant Jones’s demands escalated and the mental
abuse was so extreme that it prevented Plaintiff from defending herself.
29. Defendant Jones made it cleared to the Plaintiff that continued
employment as well as other job benefits were conditioned on her acceptance of the
continued sexual demands of Defendant Jones.
30. At the time of the harassment, Defendant Jones was the President and
CEO of the Food Management Partners, a Texas LLC. At all times, Defendant
Jones held himself out to Plaintiff and to the public, as a very powerful business man,
and owner of 150 businesses. Defendant Jones instilled fear of his power on
Plaintiff. There was no recourse available to the Plaintiff to complain.
31. Plaintiff was harmed by the physical sexual conduct perpetrated against
her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by
Defendant Jones sexual harassment. When Plaintiff was well enough to, she refused
to further submit to Defendant Jones’ inappropriate requests she was fired on or
about August 31, 2014.
8
32. Plaintiff seeks compensatory damages for lost wages, lost benefits and
future employment opportunities based on her traumatic experience at the hand of
Defendant Jones.
33. Plaintiff seeks exemplary damages based on Defendant Jones’s history of
sexual harassment of others and including the purchase of a female for his own
inappropriate sexual requests.
34. Further, Plaintiff seeks exemplary damages against all Defendants, as
her injury resulted from Defendants’ malice, which entitles Plaintiff to exemplary
damages under Tex. Civ. P. & Remedies Code section 41.003(a).
COUNT 3 – Conspiracy
35. Defendant Peter Donbavand and Jason Kemp, CFO of FMP assisted
Defendant Jones in conduct which they knew amounted to a commission of a tort or
wrongful acts against the Plaintiff.
36. Defendant Donbavand and Kemp acted with intent to assist Defendant
Jones in his wrongful acts toward Plaintiff including the discriminatory practices
perpetrated against Plaintiff more fully described in Petitioner’s Third Amended
Original Petition.
37. Defendant Donbavand and Kemp’s assistance to Defendant Jones and
their own related conduct was a substantial factor in causing the discriminatory
practices and in the breach of the promise Defendant Jones made to Plaintiff.
COUNT 4 – Fraud
38. Additionally, Plaintiff Faire pleads fraud on the part of Defendant
Jones and aided and abetted by the other Defendants. Petitioner alleges that
Defendants are barred from using the statute of frauds to avoid the promise of gifting
real estate, namely the residence at 8647 Timber Place, San Antonio, TX 78250 to
Plaintiff.
39. Plaintiff claims the gift of real estate must be enforced in equity as the
denial of the enforcement would amount to a virtual fraud. See Exxon Corp.
Breezevale, Ltd, 82 S.W.3d 429, 439 (Tex. App—Dallas 2002, pet. denied).
40. Plaintiff alleges the facts of her claim removes the suit from the operation
of the statute of frauds in that it meets the elements required as set forth;
(1) payment of consideration,
(2) possession by the promisee and
(3) the making by the promisee of valuable improvements;
41. Plaintiff shows it is undisputed that she worked Defendant Jones with
the knowledge of all Defendants for nearly five months in the Dominican Republic on a
24/7 basis as consideration, and she has refrained from a claim of wage and hour
violations, in reliance of the promise; Plaintiff has properly taken possession of the
home pursuant to a document prepared by the Defendants and Plaintiff has made
valuable improvements on the faith of the Agreement/promise.
10
42. Defendant Peter Donbavand has employed one Robert Ray, attorney at
law to initiate eviction proceedings against Plaintiff on two occasions with the full
knowledge of Defendant Jones’ promise to Plaintiff. Therefore, Plaintiff’s injuries
resulted from Defendants’ actual fraud or malice, which entitles Plaintiff to exemplary
damages under Texas Civil Practice & Remedies Code section 41.003(a).
JURY DEMAND
43. Plaintiff has demanded a jury trial and tendered the appropriate fee with her
original petition.
CONDITIONS PRECEDENT
44. All conditions precedent to plaintiff’s claim for relief have been performed or
have occurred.
OBJECTION TO ASSOCIATE JUDGE
45. Plaintiff objects to the referral of this case to an associate judge for hearing a
trial on the merits or presiding at a jury trial.
PRAYER
For these reasons, plaintiff asks that defendant be cited to appear and answer
and, on final trial, that plaintiff be awarded a judgment against defendant for the
following:
a. Exemplary damages
b. Economic and non-economic damages including, but not limited to back
pay, front pay, severance pay, specific performance regarding the gift
purchase of a home (or its monetary equivalent).
c. Prejudgment and postjudgment interest.
d. Court costs.
e. Reasonable and necessary Attorney’s fees
f. All other relief to which plaintiff is entitled.
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argyle2@sbcglobal.net
By: /s/ Olga Brown_________
OLGA BROWN
State Bar No. 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 30th day of January 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Third Amended Original Petition was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
12
FILED
1/14/2015 2:03:54 PM
Donna Kay McKinney
EXHIBIT A
Bexar County District Clerk
Accepted By: Bonnie Banks
Appendix 17
FILED
1/28/2015 3:21:38 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Valeria Zapata
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO DEFENDANTS’ RULE 91a
MOTION TO DISMISS and REQUEST FOR ATTORNEY FEES
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES PLAINTIFF CEARTH FAIRE, who respectfully requests this
court to deny Defendants FMP SA Management Group, LLC, ALL JONES, LLC,
Allen J Jones, and Peter Donbavand’s Motion to Dismiss pursuant to Texas Rule of
Civil Procedure 91a, and in support of such request Plaintiff would show the court as
follows:
I. Plaintiff Has Amended Petition upon which Motion is Based
Plaintiff Faire has timely filed petition addressing all the complaints contained in
the Defendants’ pleadings. Plaintiff has now succinctly addressed all elements of
each and every cause of action and supports allegations with facts that are true and
that “a reasonable person could believe the facts plead” .
Plaintiff would further show that “if the allegations, taken as true, together with
inferences reasonably drawn from them would entitle her to present her case to a
trier of fact and secure a verdict.
Plaintiff would show she has alleged sexual harassment and it is definitely a
recognized cause of action under the Texas Human Rights Act. Petitioner has
alleged quid pro quo sexual harassment against her employer, Defendant Allen
J. Jones and all his companies. Defendant Jones’ unlawful conduct compelled her to
elect between acceding to his sexual demands and forfeiting the job, benefits,
continued employment or promotion.
Plaintiff would show Defendants are barred from invoking the statute of
frauds as to the home Defendant Jones promised Plaintiff because of equitable
promissory estoppel. Defendant Jones made a promise of a written transfer and but
for his agreement of executing his written transfer of ownership, the requirement of
the statute of fraud in regards to real estate would have been met.
Plaintiff would show that she has made a demand for the return of her personal
property including her phone, iPad and other electronics that contain personal
information that a refusal by the Defendants amounts to an invasion of privacy for
which she sues. Petitioner has properly plead all of the elements for conversion of
her personal property.
II. Defendants Have Failed to Meet the Standard
That Would Require a Dismissal of Plaintiff’s Suit
Plaintiff has properly plead her all her causes of action against all of the
Defendants. Petitioner contends all Defendants acted in concert with Defendant
2
Jones to defraud Plaintiff and cause her harm and for which she seeks damages
against them jointly and severally.
Plaintiff has shown that each and every cause of action has a basis in law
as the claims for wrongful termination fall within the exception of employment at will.
Plaintiff has plead sufficient facts to support her claims. The Rule does not require
her to prove her case at this time but merely to give notice of her claims. See
Affidavit of Cearth Faire herein attached and incorporated for all purposes.
Plaintiff has shown that Defendants’ are barred from invoking the statute of
frauds as to her claims for a gift of real estate under the theory of equitable
estoppel. It is reasonable to believe that Defendant Jones would gift Plaintiff a home
based on his demands for her efforts while living in the Dominican Republic taking
her of his infant son. Plaintiff would show that Defendant Jones has the financial
resources to make the promise, that she could reasonably rely on the representation
he would buy a home and the promise to transfer ownership to her.
III. Arguments & Authorities
A. Defendants Are Barred From Invoking the Defense of Statute of Fraud
Plaintiff showed diligence in securing the documents to support her claim. A
formal request of all email correspondence and documents prepared by Defendants
including those documents prepared by Peter Donbavand in furtherance of
purchasing the home from Tara Kemp, wife of partner, Jason Kemp. Those
documents were due at the law office of the undersigned on January 5, 2015.
Defendants have objected to the production of documents. Plaintiff intends to
file a Motion to Compel such documents that would support her claim that Defendant
Jones represented to her he would purchase a home and immediately convey that
interest to her. In reliance of the promise made to her, Plaintiff moved into the house,
made repairs and incurred other expenses.
Plaintiff would show that this court can enforce an oral promise to sign an
Instrument complying with the Statute of Frauds if:
(1) the promisor should have expected that his promise would lead the
promisee to some definite and substantial injury;
(2) such an injury occurred;
(3) the court must enforce the promise to avoid injustice See “Moore” Burger,
Inc. v. Phillips Petroleum Company, et al, 492 S.W.2d at 934, 1972 Tex. Lexis 282
More specifically, the Texas Supreme Court addressed the promissory
estoppel exception to cases where the promise was to “sign a written agreement
which itself complies with the Statute of Frauds.
The Court in Cooper Petroleum Co. v. La Gloria Oil and Gas Co. 436 S.W.2d
889 (Tex. 1969) “where, “the promise was to sign a written guaranty, and a written
agreement would have been enforceable”, the exception applies. Here
Defendant Jones’ promise was to sign over title of the house to the Plaintiff
immediately after closing. A closing date was set and then delayed and Plaintiff was
asked to sign a one-month lease pending closing.
Plaintiff’s presentation of the facts to come before the trier of fact will support
the promissory estoppel exception applies to this claim for a gift of real estate.
4
Plaintiff would show that Defendant Donvaband must also be held liable for his
participation in the fraudulent scheme he has perpetrated to assist Defendant Jones
in breaching his promise that he would purchase the home at 8647 Timber Place,
San Antonio, TX 78250 and then transfer title to Plaintiff. Defendant Donvaband,
vice-president of real estate section of Defendant Jones’ corporations knew of the
promise to transfer title to Plaintiff, following the purchase of the home by
Defendant Jones.
B. Plaintiff’s Claims for Wrongful Termination Are Discriminatory in Nature.
The Texas Commission on Human Rights Act (TCHRA) prohibits discrimination
in employment based on sex and other protected characteristics. Plaintiff has
alleged quid pro quo sexual harassment which is a form of discrimination. Plaintiff
has properly plead all the elements of this discriminatory practice by Defendant
Jones, President and CEO. Plaintiff can show that she was forced to submit to the
unwelcomed sexual demands of Jones in order to keep her job. When Plaintiff
refused, she was fired. During the sexual abuse by Defendant Jones, he was aware
of the stress he was inflicting on Plaintiff and the medical care required by such
damage. Plaintiff has been severely injured by this sexual discrimination and has
plead for damages.
C.Participatory Liability- Assisting or Encouraging by Other Defendants
Defendant Peter Donbavand and Jason Kemp, CFO of FMP assisted
Defendant Jones in conduct which they knew amounted to a commission of a tort or
wrongful acts against the Plaintiff.
Defendant Donvavand and Kemp acted with intent to assist Defendant Jones
in his wrongful acts toward Plaintiff including the discriminatory practices
perpetrated against Plaintiff more fully described in Petitioner’s Second Amended
Original Petition.
Defendant Donbavand and Kemp’s assistance to Defendant Jones and their
own related conduct was a substantial factor in causing the discriminatory practices
and in the breach of the promise Defendant Jones made to Plaintiff.
CONCLUSION
Plaintiff has properly plead her claims against Defendants’ giving due notice as
required to establish her cause of actions against Defendants. Plaintiff has
established that the Defendants are barred by invoking the Statute of Frauds in this
claim, as equitable estoppel applies to the facts of this claim.
Plaintiff has properly plead the exception to the employment at will doctrine;
sexual discrimination. All of the elements of the cause of action are support by facts
that would be considered reasonable and believable by a trier of fact.
The Defendants in this claim are liable to the Plaintiff by either participatory
liability or by acting in concert with Defendant Jones to harm the Plaintiff.
If after a review of the law and facts contained in Petitioner’s Second
Amended Petition, Defendants fail to promptly withdraw their Motion, Plaintiff seeks
attorney fees and costs as permitted by this Rule.
6
PRAYER
Wherefore all premises considered Plaintiff prays that after notice and hearing
this Court issue an Order denying Defendants’ Motion to Dismiss in all aspects and
award to Plaintiff attorney fees and costs relating to the filing of the motion.
Petitioner prays for all other and further relief to which she is entitled.
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argyle2@sbcglobal.net
By: /s/ Olga Brown_________
OLGA BROWN
State Bar No. 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 28th day of January 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Response to Defendants’ 91a Motion to Dismiss and Request for
Attorneys Fees was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
CAUSE NO. 2014-CI-16674
CEARTH FAIRE IN THE DISTRICT
Plaintiff
V.
150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, LLC,
D/B/A FOOD MANAGEMENT
PARTNERS, LLC,
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, INDIVIDUALLY
Defendants BEXAR COUNTY, TEXAS
AFFIDAVIT
STATE OF TEXAS
COUNTY OF BEXAR
BEFORE ME, the undersigned authority, a notary public in and for the State of
Texas, personally appeared Cearth Faire, known to be the person whose name is
subscribed to this affidavit and who after being duly sworn by me did on her oath
depose and state the following, to-wit:
1 "My name is Cearth Faire. I am the Plaintiff in this matter. I am over the age
of 18 and I am fully competent to make this Affidavit in all respects and the
statements contained herein are within my personal knowledge and true and
correct
2. While I was in the Dominican Republic, taking care of Mr. Jones' infant child,
in my capacity as a personal assistant, during the period of his Bexar County
divorce, Mr. Jones promised to buy me a house. Mr. Jones promised he
would buy it in his name, and then transfer ownership to me at closing,
3. The house Mr. Jones promised me is the one I am currently living in at 8647
Timber PI, San Antonio, TX 78250 It was previously owned by Tara Kemp,
the wife of one of his business partners, Jason Kemp The price of
$120,000 00 was agreed to by the Kemps and Mr Jones. It was purchased
for $120,000.00, In reliance of hiS promise to me, I moved into the house,
made repairs, and incurred moving expenses
4. Immediately before he was to transfer ownership to me, Mr. Jones fired me .
The promise to transfer the house was breached by him, with the help of
Peter Donbavand, FMP's VP of the Real Estate and Business Division, and
Jason Kemp, FMP's Co-Founder and CFO. I had been compelled to engage
in sexual conduct with Allen Jones in order to keep my job
5 On August 30, 2014, 1 refused further sexual conduct with him, and I was
fired. While I was employed by him and his companies, in addition to
submitting to sexual conduct, I was also required to make arrangements to
secure drugs and prostitutes for his personal needs. These employment
requirements are illegal. Mr. Jones was asking me to perform illegal acts .
When I refused, he fired me.
Signature
SWORN and SUBSCRIBED to before me on this --- day of January 2015
ASI
ZI;1\ NotoRryAP e°olti:ciis
M INlicA,JSioPtl
W' My Commission Expires Notbry Public in and for State of Texas
August 16, 2016
My commission expires: t(i)
Appendix 18
FILED
1/28/2015 4:07:54 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Monica Hernandez
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S SECOND AMENDED ORIGINAL PETITION
Plaintiff, Cearth Faire, files this Second Amended Original Petition against
defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners,
LLC, ALL JONES, LLC, Allen J Jones, and Peter Donbavand, and alleges as follows:
DISCOVERY-CONTROL PLAN
1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil
Procedure 190.4 and affirmatively pleads that this suit is not governed by the
expedited-actions process in Texas Rule of Civil Procedure 169 because she may
seek injunctive relief. Plaintiff has a pending Motion for a Level Three Docket Control
Order, and the parties entered into a Rule 11 Agreement showing intent to enter into
an Agreed Docket Control Order and setting this matter for Jury Trial November 2,
2015. See Exhibit A.
CLAIM FOR RELIEF
2. Plaintiff seeks monetary relief over $200,000.00 but not more than
$3,000,000.00.
PARTIES
3. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place,
San Antonio, TX 78250.
4. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD
MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company
conducting business in the State of Texas, and has been served and is represented by
counsel, and is properly before this court.
5. Defendant ALL JONES, LLC is an active Texas Limited Liability
Company conducting business in the State of Texas, and and has been served and is
represented by counsel, and is properly before this court
6. Defendant Allen J Jones, is an individual who has been served and is
represented by counsel, and is properly before this court.
7. Defendant Peter Donbavand, is an individual has been served and is
represented by counsel, and is properly before this court.
JURISDICTION
8. The Court has subject-matter jurisdiction over the lawsuit because the
amount in controversy exceeds this Court’s minimum jurisdictional requirements.
2
VENUE
9. Venue is proper in Bexar County as all or a substantial part of the events or
omissions giving rise to the claim occurred in Bexar County.
FACTS
10. Plaintiff Faire was an employee of Defendants, as well as a personal
assistant to Defendant Jones. Plaintiff, in addition to working for Defendants’
businesses, also took care of Defendant Jones’ personal matters, including living in
the Dominican Republic for approximately five months on a 24/7 basis assisting in his
defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been
properly compensated for her services.
11. Defendant Jones, in recognition for her loyal and tireless services
assumed the role of her benefactor. In his role as a benefactor Defendant Jones
promised Plaintiff that he would buy a home and transfer ownership to Plaintiff, so she
would never have worries about a residence. Defendant Jones developed a scheme
for his purchase of the house that included telling other corporate officers that
Plaintiff’s pay increase was for the house payments. Defendant Jones intended to hide
his gift from the other Defendants named in this lawsuit. Defendants have a real
estate department as part of their businesses, and therefore, Plaintiff was further
inclined to believe his promise to purchase and transfer ownership.
12. Although Defendant Jones intended to disguise the gift of the residence
from his business partners, nevertheless he authorized for the necessary real estate
transactions to be initiated that would result in a purchase transaction and an
immediate transfer of ownership. Plaintiff relied on Defendant Jones’ promise and she
moved into the residence at 8647 Timber Place, San Antonio, Texas 78250.
13. Plaintiff incurred moving expenses as well as expenses in making
repairs to the residence to make it habitable. The residence is still in need of
significant repairs. An inspection was ordered by the defendants as further proof of
Defendant Jones’ purchase with intention to make a gift. Further, in reliance that the
home would be given to her, Plaintiff agreed to sign a one-month lease.
14. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent
promotion based on meritorious work.. Defendant Jones has now conspired with the
other defendants including Defendant Peter Donbavand to evict Plaintiff from the
house she was promised. The wrongful eviction proceedings were abated, as the
justice of the peace court lacks jurisdiction to rule on the petition for eviction.
15. Defendants continue to harass the Plaintiff by wrongfully repossessing
her car. Plaintiff had clear title to her 2005 Mini cooper. Jones promised her an
ambiguous payment plan, and in retaliation for claiming her rightful title to her house,
he has deprived Plaintiff of a necessity of transportation to seek employment. During
the repossession process, he terrorized her by sending strangers to ring her doorbell,
all while he owns a million dollars worth of automobiles, and spends a great deal of
his time in the Dominican Republic.
4
16. Plaintiff had an exemplary employment record with Defendants FMP and
ALL JONES, LLC, and had immediately before the firing, been given a raise in pay
and additional duties. Plaintiff was fired solely because Plaintiff refused to continue
perform employment duties that were not in furtherance of the corporate business but
to serve as a shield for Defendant Jones numerous illegal activities some including
sexual harassment. Defendant Peter Donbavand, a business partner of Defendant
Jones was aware of the employment violations occurring at the corporations and by
non-action, condoned the wrongful conduct of Defendant Jones.
17. Plaintiff seeks actual damages as a result of the wrongful termination,
which include, but are not limited to back pay from the date of retaliation until the date
of trial. Plaintiff also seeks future pay in lost earnings and benefits including the
repossession of her automobile lost as a result of her wrongful termination.
18. Plaintiff also seeks damages for past and future mental anguish as a
result of Defendant Jones forcing her to choose between the illegal activities he was
demanding of her and her livelihood.
19. Defendant Jones acted with malice toward Plaintiff in that Jones
exhibited conscious indifference to consequences Plaintiff might suffer separate and
apart from the damages suffered as a result of the wrongful termination. Defendant
Jones and Defendant Donbavand have inflicted additional injuries by circulating
malicious rumors about the Plaintiff, harassing the Plaintiff and other activities which
affect her future employment. Plaintiff therefore seeks exemplary damages.
COUNT 1-PROMISSORY ESTOPPEL as a CLAIM
20. On or about March 27, 2013, when Plaintiff Faire was temporarily living
in the Dominican Republic at the request of Defendant Jones, taking care of Jones’
child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home
and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas.
21. It was reasonable for Plaintiff to rely on Defendant Jones’ promise to
purchase a home and gift it to her based on Defendant Jones’ financial resources,
including his ownership of one million dollars worth of cars, and extensive property
real estate holdings in the United States, and in the Dominican Republic.
22. Defendant Jones promised the Plaintiff that he would execute a written
agreement at closing, giving her full title and interest to the home. Defendant Jones
further promised the closing would take place immediately upon the reaching of an
agreement on the final price and other terms. A final purchase price was reached
between Defendant Jones and his business partner Jason Kemp. All terms for the
sale of the house were reached by buyer and seller.
23. Defendant Jones negotiated all the terms of the real estate purchase.
Defendant Jones had reached an agreement with his business partner, Jason Kemp
to purchase the house located at 8647 Timber Place San Antonio, Texas 78250 from
Kemp’s wife, Tara Kemp. The real estate actions necessary for a closing were
initiated. Defendant Donbavand ordered an inspection of the home in furtherance of a
prompt closing.
6
24. Although there were no uncertainties regarding the purchase of the
home by Defendant Jones for the Plaintiff, there was a delay in the closing. Plaintiff
was asked to sign a one month lease pending the real estate closing. In signing the
one-month lease, Defendant Jones promised he would sign the necessary documents
to give Plaintiff full and complete ownership of the home in consideration for her loyal
efforts in assisting Defendant Jones in the defense of his suit for divorce.
25. It now appears that Defendant Jones, acting in concert with Defendant
Donbavand, who appeared in Justice of Peace court attempting to practice law without
a license, regarding this promise, made the following:
a. a false representation or concealment of material facts concerning the
real estate transaction;
b. made representation with knowledge, actual or constructive, of those
facts;
c. with the intention that it should be acted on;
d. to a party without knowledge or the means of knowledge of those facts
e. who detrimentally relied upon the misrepresentation
26. Plaintiff contends the promise to complete the transaction (closing of the
real estate) conveying title to Plaintiff is binding against Defendant Jones in order to
avoid injustice. Plaintiff further contends equitable estoppel alleged above is sufficient
to preclude the statute of fraud defense to this promise of a home to Plaintiff.
COUNT 2 QUID PRO QUO SEXUAL HARASSMENT
27. Plaintiff was an employee of Defendants FMP, ALL JONES and their
subsidiaries, and her duties were to serve as a personal assistant to the Defendant
Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self-
supporting divorced woman with no financial resources other than her wages. Plaintiff
also had an exemplary work history prior to working for Defendants.
28. On or about January 21, 2013 Defendant Jones made sexual advances
toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical
conduct of a sexual nature. Defendant Jones’s demands escalated and the mental
abuse was so extreme that it prevented Plaintiff from defending herself.
29. Defendant Jones made it cleared to the Plaintiff that continued
employment as well as other job benefits were conditioned on her acceptance of the
continued sexual demands of Defendant Jones.
30. At the time of the harassment, Defendant Jones was the President and
CEO of the Food Management Partners, a Texas LLC. At all times, Defendant
Jones held himself out to Plaintiff and to the public, as a very powerful business man,
and owner of 150 businesses. Defendant Jones instilled fear of his power on
Plaintiff. There was no recourse available to the Plaintiff to complain.
31. Plaintiff was harmed by the physical sexual conduct perpetrated against
her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by
Defendant Jones sexual harassment. When Plaintiff was well enough to, she refused
to further submit to Defendant Jones’ inappropriate requests she was fired on or
about August 31, 2014.
8
32. Plaintiff seeks compensatory damages for lost wages, lost benefits and
future employment opportunities based on her traumatic experience at the hand of
Defendant Jones.
33. Plaintiff seeks exemplary damages based on Defendant Jones’s history of
sexual harassment of others and including the purchase of a female for his own
inappropriate sexual requests.
34. Further, Plaintiff seeks exemplary damages against all Defendants, as
her injury resulted from Defendants’ malice, which entitles Plaintiff to exemplary
damages under Tex. Civ. P. & Remedies Code section 41.003(a).
COUNT 3 – Conspiracy
35. Defendant Peter Donbavand and Jason Kemp, CFO of FMP assisted
Defendant Jones in conduct which they knew amounted to a commission of a tort or
wrongful acts against the Plaintiff.
36. Defendant Donbavand and Kemp acted with intent to assist Defendant
Jones in his wrongful acts toward Plaintiff including the discriminatory practices
perpetrated against Plaintiff more fully described in Petitioner’s Second Amended
Original Petition.
37. Defendant Donbavand and Kemp’s assistance to Defendant Jones and
their own related conduct was a substantial factor in causing the discriminatory
practices and in the breach of the promise Defendant Jones made to Plaintiff.
JURY DEMAND
38. Plaintiff has demanded a jury trial and tendered the appropriate fee with her
original petition.
CONDITIONS PRECEDENT
39. All conditions precedent to plaintiff’s claim for relief have been performed or
have occurred.
OBJECTION TO ASSOCIATE JUDGE
40. Plaintiff objects to the referral of this case to an associate judge for hearing a
trial on the merits or presiding at a jury trial.
PRAYER
For these reasons, plaintiff asks that defendant be cited to appear and answer
and, on final trial, that plaintiff be awarded a judgment against defendant for the
following:
a. Exemplary damages
b. Economic and non-economic damages including, but not limited to back
pay, front pay, severance pay, specific performance regarding the gift
purchase of a home (or its monetary equivalent).
c. Prejudgment and postjudgment interest.
d. Court costs.
e. Reasonable and necessary Attorney’s fees
f. All other relief to which plaintiff is entitled.
10
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argyle2@sbcglobal.net
By: /s/ Olga Brown_________
OLGA BROWN
State Bar No. 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 28th day of January 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Second Amended Original Petition was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
FILED
1/14/2015 2:03:54 PM
Donna Kay McKinney
EXHIBIT A
Bexar County District Clerk
Accepted By: Bonnie Banks
Appendix 19
Appendix 20
NO._____________________________
IN THE COURT OF APPEALS FOR
THE FOURTH DISTRICT OF TEXAS
SITTING AT SAN ANTONIO
CEARTH FAIRE,
Petitioner,
v.
FMP SA MANAGEMENT GROUP, LLC d/b/a
FOOD MANAGEMENT PARTNERS, LLC, ALL JONES, LLC
ALLEN J. JONES, INDIVIDUALLY, PETER DONBAVAND,
INDIVIDUALLY, AND JASON KEMP, INDIVIDUALLY,
Respondents.
Cause No. 2014-CI-16674 from the
150th District Court, Bexar County, Texas
Hon . Antonia Arteaga, presiding
Petition for Leave to File Interlocutory Appeal Pursuant to
Tex. R. App. P. 28.3 and Tex. Civ. Prac. & Rem. Code 51.014(f)
Olga Brown Jeff Small
State Bar No. 03155500 State Bar No. 00793027
LAW OFFICE OF OLGA BROWN LAW OFFICE OF JEFF SMALL
111 Soledad, Suite 1725 12451 Starcrest, Suite 100
San Antonio, Texas 78205 San Antonio, Texas 78216
210.226.1550/210.226.1884 210.496.0611/f: 210.579.1399
argyle2@sbcglobal.net jdslaw@satx.rr.com
TABLE OF CONTENTS
INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Issue No. 1: Does permitting an interlocutory appeal now serve the
best interests of judicial economy thereby eliminating
the risk of two trials by deciding the propriety of the
trial court’s Rule of Civil Procedure 91a dismissal of
several of Petitioner’s causes of action before the
remaining issues go to trial? . . . . . . . . . . . . . . . . . . vi
Issue No. 2: Is dismissal under Rule 91a proper when Petitioner’s
causes of action state a recognized cause of action and
her factual pleadings do not show as a matter of law
that she cannot prevail? . . . . . . . . . . . . . . . . . . . . . . vi
INFORMATION COMPLYING WITH RULE 25.1(d). . . . . . . . . . . . . . . . . . vi
STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
REASONS TO GRANT PERMISSION
FOR AN INTERLOCUTORY APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The trial court erred by dismissing Petitioner’s causes of action because
each states a recognized cause of action in Texas and none of her factual
pleadings affirmatively negate her entitlement to relief... . . . . . . . . . 5
A. Texas Rule of Civil Procedure 91a. . . . . . . . . . . . . . . . . . . 5
B. There is “no basis in law” only if the pleading fails to state a
recognized cause of action.. . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. A pleading has “no basis in fact” only if no reasonable
person could believe the facts pleaded.. . . . . . . . . . . . . . . . 7
ii
CONCLUSION and PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
VERIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
iii
INDEX OF AUTHORITIES
Cases
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Drake v. Walker,
No. 05-14-0355-CV, 2015 Tex. App. LEXIS 4732
(Tex. App.— Dallas May 8, 2015, no pet. h.). . . . . . . . . . . . . . . . . . . . . 5
GoDaddy.com, LLC v. Hollie Toups ,
429 S.W.3d 752 (Tex. App.— Beaumont 2014, pet. denied) . . . . . . . 8
Gulley v. State Farm Lloyds,
350 S.W.3d 204 (Tex. App.-- San Antonio 2011, no pet.) .. . . . . . . . . 4
Scott v. Gallagher,
209 S.W.3d 262 (Tex. App.— Houston [1st Dist.] 2006, no pet.).. . . . 7
Wooley v. Schaffer,
447 S.W.3d 71 (Tex. App.— Houston [14th Dist.] 2014, pet. filed).. . 5
Rules
TEX. R. APP. P. 25.1(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
TEX. R. APP. P. 28.3(k). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
TEX. R. CIV. P. 47 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
TEX. R. CIV. P. 91a.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
TEX. R. CIV. P. 91a.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
iv
TEX. R. CIV. P. 91a.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TEX. R. CIV. P. 91a.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TEX. R. CIV. P. 91a, cmt. to 2013 change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Other Authorities
David E. Chamberlain and W. Bradley Parker,
Rule 91a Motions to Dismiss,
in State Bar of Texas Ultimate
Motions Practice Course (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
House Comm. on Civil Practices, Bill Analysis,
Tex. H.B. 978, 77th Leg., R.S. (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 4
v
ISSUES PRESENTED
Issue No. 1: Does permitting an interlocutory appeal now serve the best
interests of judicial economy thereby eliminating the risk of
two trials by deciding the propriety of the trial court’s Rule
of Civil Procedure 91a dismissal of several of Petitioner’s
causes of action before the remaining issues go to trial?
Issue No. 2: Is dismissal under Rule 91a proper when Petitioner’s causes
of action state a recognized cause of action and her factual
pleadings do not show as a matter of law that she cannot
prevail?
INFORMATION COMPLYING WITH RULE 25.1(d)
Plaintiff/Appellant Cearth Faire desires to pursue an interlocutory
appeal in accordance with the provisions of Texas Rule of Appellate Procedure
28.3 and the Texas Civil Practice and Remedies Code section 51.014(f). The
order being appealed dated May 6, 2015 (ORDER GRANTING DEFENDANTS’ FIRST
AMENDED RULE 91A PARTIAL MOTION TO DISMISS (App’x Tab 1)), overruled Ms.
Faire’s Motion for Reconsideration/New Trial in cause number 2014-CI-
16674, which dismissed certain of Ms. Faire’s causes of action pursuant to
Rule 91a. If the Court grants leave to file an interlocutory appeal pursuant to
TEX. R. APP. P. 28.3(k), that appeal is treated as accelerated in accordance with
Rule 26.1(b).
vi
STATEMENT OF FACTS
The facts stated herein are those as alleged in Plaintiff’s Fourth
Amended Petition (App’x Tab 3).
Defendants/ Appellants FMP SA Management Group, LLC, d/b/a Food
Management Partners, LLC and All Jones, LLC, all of which are owned and
controlled by Defendant Allen Jones, employed Plaintiff/Appellant Faire.
Defendants Peter Donbavand and Jason Kemp are business partners of Allen
Jones. In addition to her employment for the corporate defendants, Ms. Faire
also served as Defendant/Appellant Allen J. Jones personal assistant. As his
personal assistant, Ms. Faire took care of Allen Jones' personal matters. She
lived in the Dominican Republic caring for Jones’ children on a 24/7 basis for
approximately five months, also assisting administratively in his defense in
Jones’ divorce proceedings pending in Bexar County, Texas during 2013 and
2014.
In recognition for her loyal and tireless employment services to him,
Jones gifted Ms. Faire the house at 8647 Timber Place in San Antonio. Jones
negotiated with Defendant Jason Kemp, who works for Jones, and purchased
the home at 8647 Timber Pl, San Antonio, TX 78250, from Kemp’s wife who
was the deeded owner of that property. It was this property that Jones gifted
1
to Ms. Faire. Jones instructed another employee, Peter Donbavand, in his
individual capacity and outside the scope of corporate business, to prepare the
necessary documents so Jones could finalize the gift to Ms. Faire. Jones later
retaliated against Ms. Faire by denying he had gifted the real estate to her.
Both defendants Donbavand and Kemp, while business partners of
Jones and employees and agents of FMP, routinely served Jones as personal
aides, taking and executing orders from Jones outside the course and scope
of their duties with the corporate entities to meet his personal demands
without regard for whether those orders served the corporate interests.
While Donbavand completed the necessary transfer documents, Jones
insisted that Ms. Faire move into the house, which she did in reliance on his
gift of the house to her. She made valuable and permanent improvements to
the house in reliance on Defendant Jones’ promise to her. She also incurred
moving expenses, as well as expenses in making permanent improvements to
the residence to make it habitable.
When Ms. Faire refused Jones’ sexual advances, he fired her despite
having recently promoted her, given her additional duties, and increased her
pay based on meritorious work. Jones then ordered Donbavand and Jason
Kemp to evict Ms. Faire from the house Jones had given her. Jones also
2
reneged on other promises he had made to Ms. Faire.
Ms. Faire sued for sexual harassment, conspiracy, promissory estoppel,
and fraud. Defendants filed a Rule 91a motion and an amended motion to
dismiss (DEFENDANTS’ FIRST AMENDED RULE 91A PARTIAL MOTION TO DISMISS
(App’x Tab 2)). After Defendants filed their amended motion to dismiss, but
before the hearing at which the causes of action were dismissed, Ms. Faire
amended her petition to drop the claim for promissory estoppel and added a
claim for an oral gift of real estate. See PLAINTIFF’S FOURTH AMENDED PETITION
(App’x Tab 3).Defendants filed no further amended pleadings until after the
motion to dismiss had been heard, belatedly asking for the opportunity to
present evidence of reasonable and necessary attorneys’ fees.
The trial court overruled Ms. Faire’s motion to reconsider the dismissal
of her causes of action on May 6, 2015. ORDER GRANTING DEFENDANTS’ FIRST
AMENDED RULE 91A PARTIAL MOTION TO DISMISS DTD MAY 6, 2015 (App’x Tab
1);ORDER GRANTING DEFENDANTS’ FIRST AMENDED RULE 91A PARTIAL MOTION
TO DISMISS dtd April 9, 2015 (App’x Tab 2).
3
REASONS TO GRANT PERMISSION
FOR AN INTERLOCUTORY APPEAL
This Court should grant leave for an interlocutory appeal because Rule
91a is relatively new1 and, thus, there is not a great deal of case law to guide its
interpretation. Permitting an interlocutory appeal at this point in the case will
serve the interests of judicial economy and advance the ultimate termination
of the litigation in that the question at hand involves a controlling question of
law. This is so because an appeal at this juncture will eliminate the potential
for two trials if the trial court’s Rule 91a dismissal of several of
Plaintiff/Appellant’s causes of action was, indeed, erroneous. See Gulley v.
State Farm Lloyds, 350 S.W.3d 204, 207-08 (Tex. App.— San Antonio 2011,
no pet.) (citing House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 978,
77th Leg., R.S. (2001) (explaining that the addition of subsection (d) would
promote judicial efficiency by “allowing the trial court to certify a question for
appeal” when “the trial court rules on an issue that is pivotal in a case but
about which there is legitimate disagreement”)).
1
Adopted by the Supreme Court of Texas February 12, 2013.
See TEX. R. CIV. P. 91a, cmt. to 2013 change
4
ARGUMENT
The trial court erred by dismissing Petitioner’s causes of action
because each states a recognized cause of action in Texas and none
of her factual pleadings affirmatively negate her entitlement to
relief.
A. Standard of Review
A trial court’s ruling on a Rule 91a motion to dismiss — whether there
is a basis in law and a basis in fact — is reviewed de novo; the pleadings are
construed liberally in favor of the plaintiff, looking to the pleader’s intent; and
the factual allegations in the pleadings are accepted as true. Wooley v.
Schaffer, 447 S.W.3d 71, 74 (Tex. App.— Houston [14th Dist.] 2014, pet. filed)
(analogizing 91a dismissal motion to plea to the jurisdiction); see Drake v.
Walker, No. 05-14-0355-CV, 2015 Tex. App. LEXIS 4732, at *7 (Tex. App.—
Dallas May 8, 2015, no pet. h.).
A. Texas Rule of Civil Procedure 91a
Rule 91a permits the dismissal of only those causes of action that have
“no basis in law or fact.” TEX. R. CIV. P. 91a.1. “A cause of action has no basis
in law if the allegations, taken as true, together with the inferences reasonably
drawn from them, do not entitle the claimant to the relief sought. A cause of
action has no basis in fact if no reasonable person could believe the facts
pleaded.” TEX. R. CIV. P. 91a.1.
5
Rule 91a specifically requires that a motion to dismiss address each
challenged cause of action and must state specifically the reason the cause of
action has no basis in law, no basis in fact, or both. TEX. R. CIV. P. 91a.2. The
court may not rule on a cause of action that has been non-suited or is not
included in the plaintiff's latest amended petition. TEX. R. CIV. P. 91a.2, 91a.5.
Further, the rule explicitly states that in determining a Rule 91a motion the
trial court is to consider only the pleadings and may NOT consider evidence.
TEX. R. CIV. P. 91a.6.
The trial court’s dismissal here violates each of those tenets. Compare
DEFENDANTS’ FIRST AMENDED RULE 91A PARTIAL MOTION TO DISMISS (App’x
Tab 2), with PLAINTIFF’S FOURTH AMENDED ORIGINAL PETITION (App’x Tab 3).
Because the trial court dismissed issues already amended out of the pleadings
at the time of the hearing and Defendants orally requested and were granted
dismissal of a cause of action not addressed in their amended motion (See
App’x Tab 1 & App’x Tab 2) , there is a legitimate question in this case whether
the trial court's dismissal of Petitioner’s causes of action was proper. Thus,
this Court should grant permission for an interlocutory appeal of that
dismissal.
6
B. There is “no basis in law” only if the pleading fails to
state a recognized cause of action.
Texas “[c]ourts are likely to dismiss causes of action under Rule 91a in
three circumstances: (1) when a cause of action is not recognized by Texas law;
(2) when the pleading alleges facts that negate a cause of action; and (3) when
pleading exhibits, attached pursuant to Rule 59, demonstrate that claimant is
not entitled to the relief sought as a matter of law.” David E. Chamberlain and
W. Bradley Parker, Rule 91a Motions to Dismiss, in STATE BAR OF TEXAS
ULTIMATE MOTIONS PRACTICE COURSE, at § II B.1., at 4 (2013) (App’x Tab 4).
The question presented by Rule 91a is “relatively straightforward” — Do
the pleadings state a cause of action that would entitle the plaintiff to relief?
Scott v. Gallagher, 209 S.W.3d 262, 267 (Tex. App.— Houston [1st Dist.]
2006, no pet.) (“no arguable basis in law” under Civil Practice and Remedies
Code Chapter 14 means a claim that is “indisputably meritless”). Putting it
differently, the question is “whether, as a matter of law, [the petition] state[s]
a cause of action that would authorize relief.” Id. Thus, giving the pleader the
benefit of the doubt, if a plaintiff’s petition arguably states a cause of action
recognized in the state of Texas, dismissing it under Rule 91a is error. Id.
7
C. A pleading has “no basis in fact” only if no reasonable
person could believe the facts pleaded.
When analyzing a plaintiff’s petition as to whether it has a basis in fact,
a court may go no further than ascertaining whether a “reasonable person
could believe the facts pleaded.” TEX. R. CIV. P. 91a.1. A claim may be
dismissed for having “no basis in fact” when, taken as true as the pleaded facts
must be, they are legally insufficient to support plaintiff’s claim. See City of
Keller v. Wilson, 168 S.W.3d 802, 811- 17 (Tex. 2005). If the facts pleaded
satisfy Texas’s notice pleading requirements, the claim is not subject to
dismissal under Rule 91a. See TEX. R. CIV. P. 47 (a) (pleading satisfies notice
pleading requirements if it gives “fair notice of the claim involved”).
Using the Federal Rule of Civil Procedure 12(b)(6) for guidance, the
Beaumont Court of Appeals observed that a claim will survive dismissal if the
pleader alleges “enough facts to state a claim to relief that is plausible on its
face.” GoDaddy.com, LLC v. Hollie Toups , 429 S.W.3d 752, 754 (Tex. App.—
Beaumont 2014, pet. denied) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
CONCLUSION and PRAYER
Judicial efficiency will be served here by granting leave for an
interlocutory appeal rather than permitting a trial to go forward on the
8
remaining issues in this cause only to have the issue of the propriety of the 91a
dismissal then come before this court and be remanded back for another trial
if the 91a dismissal is determined to be erroneous. The interests of all
concerned would be better served by abating the trial court proceedings,
permitting the interlocutory appeal to go forward, and then reinstating the
trial court proceedings after a determination has been made by this Court on
the 91a issue.
The trial court dismissed a cause of action that had been amended out
of Petitioner’s pleadings before the hearing on the motion to dismiss;
dismissed a cause of action not addressed in Respondents’ Amended Motion
to Dismiss, and delved into evidentiary details rather than ruling strictly on
the pleadings as required by Rule 91a. All of these actions are error requiring
reversal of the trial court’s dismissal. It is better that the reversal come now
rather than after a trial on the remaining issues and then a remand for another
trial.
Accordingly, Petitioner respectfully requests that she be permitted to
pursue an interlocutory appeal of the trial court’s dismissal of her causes of
action.
9
-------------------------·--------------------------------````-~-,
Respectfully submitted,
1s1JeffS~
Olga Brown Jeff Small
State Bar No, 03155500 State Bar No. 00793027
LAW OFFICE OF OLGA BROWN Law Office of Jeff Small
111 Soledad, Suite 1725 12451 Starcrest Dr., Suite 103
San Antonio, Texas 78205 San Antonio, TX 78216.2988
210 .,226.1550/ 210,,226,,1884 210.496.0611/F: 210 579.1399
argyle2@sbcglobal.net jdslaw@satx.rr.com
Counsel for Petitioner Cearth Faire
VERIFICATION
Before me, the undersigned notary, on this day personally appeared
Olga Brown, the affiant, a person whose identity is known to me. After I
administered an oath, affiant testified as follows:
L "My name is Olga Brown,, I am over 18 years of age, of sound mind,
and capable of making this verification. the facts in this verification are within
my personal knowledge and are true and correct
2. I am one of the attorneys for petitioner. All the documents
included with this petition for permission to file an interlocutory appeal are
true copies."
.``;~''f'f::•,
{R?.:Ji::J~•\
;``~·.·~i
RAMONA .J, FLORES
Notary Public, State of Texas
My Commission Expires
~ ``
fu
~,``'Of\\~ August 16, 2016
'"" Olga Bro
Sworn to and subscribed to before me by Olga Brown on MayJOtf;2015,
Notary ublic, State of Texas
JO
r
I
CERTIFICATE OF COMPLIANCE
In compliance with Tex R. App. P 9.4(i)(3), I certify that the number of
words in this document, excluding those matters list in Rule 9.4(i)(1), which
was prepared in WordPerfect X6 using 14-point Book Antiqua, is 1893 words.
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Petition for Leave
to File Interlocutory Appeal Pursuant to Tex. R. App. P. 28.3 and Tex. Civ.
Prac. & Rem. Code 51.014(f) has been served on counsel of record/interested
parties as shown below in accordance with the Rules of Civil Procedure on
May 20, 2015.
Justin Barbour
StateBarNo. 24055142
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
Phone: (210) 447-8033
Fax: (210) 447-8036
jbarbour@sr-llp.com
/S/ Jeff Small
11
APPENDIX
Order Granting Defendants’ First Amended Rule 91a. . . . . . . . . . . . . . . Tab 1
Partial Motion to dismiss dtd May 6, 2015
(overruling Mtn for New Trial/Reconsideration)
Order Granting Defendants’ First Amended Rule 91a. . . . . . . . . . . . . . . Tab 2
Partial Motion to Dismiss dtd April 9, 2015
Defendants’ First Amended Rule 91a Partial Motion to Dismiss. . . . . . Tab 3
Plaintiff’s Fourth Amended Original Petition. . . . . . . . . . . . . . . . . . . . . . Tab 4
Plaintiff’s Motion for New Trial/Reconsideration. . . . . . . . . . . . . . . . . . Tab 5
Article, David E. Chamberlain and W. Bradley Parker, . . . . . . . . . . . . . Tab 6
Rule 91a Motions to Dismiss,
in STATE BAR OF TEXAS ULTIMATE
MOTIONS PRACTICE COURSE (2013)
Reporter’s Record from April 9, 2015 Dismissal Hearing. . . . . . . . . . . . Tab 7
Reporter’s Record from May 6, 2015 Reconsideration Hearing.. . . . . . Tab 8
12
Tab 1
CAUSE NO. 2014-CI-16674
CEARTH FAIRE, § IN IHEDISTRICTCOURI
§
Plaintiff, §
§
v. §
§
FMP SA MANAGEMENT GROUP, LLC § lSOIH JUDICIAL DISTRICT
d/b/a FOOD MANAGEMENT PARTNERS, §
LLC, ALL JONES, LLC, ALLEN J.. JONES §
INDIVIDUALLY, AND PETER §
DONBAV AND, INDIVIDUALLY §
§
Defendants.. § BEXAR COUNTY, TEXAS
ORDER GRANTlNG DEFENDANTS' FIRST AMENDED
RULE 9la PaRTIAL MOTION TO DISMISS
On this date, the Co1Ut considered Plaintiff's Motion for Reconsideration/New Trial.
After cal'eful consideration of the Motion, the response thereto, arguments of cowisel, and the
relevant law, the CoUit is of the opinion that the Motion should be DENIED.
II IS IHEREFORE ORDERED that Plaintiff's Motion for Reconsideration/New Idal is
DENIED .
.. SIGNED on this Q,-t{?. . . day of....Jll```` 2015
- ,k,~C2
PRESIDINGJUDGE
AGREED AS IO FORM:
Counsel for Plaintiff Counsel for Defendant
Received Time May 6 4:48PM
Tab 2
CAUSE NO . 2014-CI·-16674
CEARTH FAIRE, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§
FMP SA MANAGEMENT GROUP, LLC § 150TH JUDICIAL DISTRICT
d/b/a FOOD MANAGEMENT PARTNERS, §
LLC, ALL JONES, LLC, ALLEN J. JONES §
INDIVIDUALLY, AND PETER §
DONBAVAND, INDIVIDUALLY §
§
Defendants.. § BEXAR COUNTY, TEXAS
ORDER GRANTING DEFENDANTS' FIRST AMENDED
RULE 9Ia PARTIAL MOTION TO DISMISS
On this date, the Court considered Defendants' First Amended Rule 9la Partial Motion to
Dismiss After careful consideration of the Motion, the response thereto, arguments of counsel,
and the relevant law, the Court is of the opinion that the Motion should be GRANTED
II IS THEREFORE ORDERED that Defendants' First Amended Rule 9la Partial Motion
to Dismiss is GRANTED. It is further ORDERED that Plain~ifrs claims for promissory
estoppel, "oral gift" of real estate, and conspiracy are DISMISSED WITH PREJUDICE, and ~'\
'ficfc11dmits arc awmded tlteir 1easmrabte and necessary attorney's tees incurred With respect t(J' ~
AGREED AS IO FORM:
Counsel for Plaintiff Counsel for Defendant
1
ORDER GRANTING DEFENDANTS' FIRST A.MENDED
RULE 91a PARTIAL MOTION IO DISMtss
'
Tab3
Feb. 3 2015 9:47AM No 7814 P. 3
CAUSE NO. 2014-CI-16674
CEARIH FAIRE, § IN THE DISTRICI COURT
§
Plaintiff, §
§
~ §
§
FMP SA MANAGEMENT GROUP, LLC § 150IHJUDICIALDISTRICT
d/b/aFOOD MANAGEMENT PARTNERS, §
LLC, ALL JONES, LLC, Al,LEN J. JONES §
INDIVIDUAlLY, AND PEIER §
DONBAVAND, INDIVIDUALLY §
§
Defendants.. § BEXAR COUNTY, TEXAS
____ _________
,..._.,..,
DEFENDANTS' FIRST A.M}i;NDED RULE 91a PARIIAL MOTION TO DISMISS
For their First Amended Partial Motion to Dismiss pursuant to Texas Rule of Civil
Procedure 9la, Defendants FMP SA Management G:roup, LLC d/b/aFood Management Partners,
All Jones, LLC, Allen J Jones, and Peter Donbavand respectfully show the following:
I. INTRODUCTION & FACTUAL BACKGROUND
Plaintiff Cearth Faire filed her 01iginal Petition in the 150th District Comt,
Bexar County, Texas, on October 21, 2014.. Ex . I, PL's Orig. Pet.. Defendants FMP SA
Mmagement Group, LLC d/b/a FMP Partners ("FMP"), All Jones, LLC ("All Jones"), and Peter
Donbavand ("Donbavand") were served with the Original P~tition on November 7, 2014
Defendant Allen J . Jones ("Jones") was served on November 20, 2014.. All Defendants timely
filed their General Denial and Defenses on November 26, 2014.. Ex., 2, Def's Answer &
Defenses., Plaintiff filed her First Amended Petition on December S, 2014 . Ex., 3, PL's lstAm .
Pet. Plaintiff's First Amended Petition alleged three claims for relief: (!)promissory estoppel
regarding an alleged promise to purchase a home for her, (2) "wrongful termination," and
(3) conversion of certain property allegedly belonging to her,
1
Received Time Feb. 3. 9:44AM
Feo 3 2015 9:48AM No 7814 P. 4
On December 22, 2015-well within the 60 day pe!iod prescribed by Rule 9la.3(a)-
Defendants filed their Rule 91 a Motion to Dismiss. Through that Motion to Dismiss, Defendants
asked the Cowt to dismiss (1) Plaintiff's wrongful termination claim as to all Defendants,
(2) Plaintiff's promissory estoppel claim as to all Defendants, (3) all remaining claims against
Defendant Donbavand and (4) the conversion and wrongful termination claims against
Defendant Jones .
In response to Defendants' Rule 9la Partial Motion to Dismiss, Plaintiff filed her Second
and Third Amended Petitions on fanuary 28 and 30, 2015, respectively.. Ex . 4, 2d Am. Pet;
Ex. 5, 3d Am . Pet Through these pleading amendments, Plaintiff has substantially revised the
allegations pertaining to her promissory estoppel claim, while dropping her claims of "wrongful
termination" and conversion Meanwhile, Plaintiff's Third Amended Petition has added new,
previously unasserted claims of sexual harassment, conspiracy, and fraud .
Defendants' Rule 9la Piutial Motion to Dismiss is presently set fox heiuing on
Februiuy 4, 2015. In light of Plaintiff's Third Amended Petition, which amends Plaintiff's
promissory estoppel claim, previously challenged by Defendants, and adds new claims of sexual
harassment, conspiracy, and fraud, Defendants now file their Amended Motion to Dismiss
pursuant to Rule 91a.5(b}. Defendants specifically move to dismiss Plaintiff's claim for
promissory estoppel, as her amended pleadings do not establish a legal exception to the statute of
frauds, which bars this claim as a matter of law:. Defendants ftuther move to dismiss Plaintiff's
claim of conspiracy, which is barred by Plaintiff's Chapter 21 's exclusive remedial framework
II. SrANDARD OF REVIEW
A. Rule 91a Standard ofDismissal
Texas Rule of Civil Procedwe 9la requires dismissal of claims that have "no basis in law
or fact" TEX. R. Crv. P 91a.J. A cause of action has no basis in law "if the allegations, taken as r
2
Received Time Feb 3 9:44AM
Feb 3 2015 9:48AM No 7814 P. 5
true, together with inferences reasonably drawn from them, do not entitle the claimant to the
relief sought. " Id. Meanwhile, a cause of action has no basis in fact "if no reasonable person
could believe the facts pleaded." Id
ill.. ARGUMENT &AUJHORUIES
A. P/a1iztijj Fails to Show Exception to Statute of Frauds, Requiring Dismissal of
Promissory Estoppel Claim.
Faire asserts a claim for prnmissory estoppel based on Defendant Jones's allegedly
"promis[ing] Plaintiflthat he would buy a home and transfer ownership to" her. Ex. 5, PL's 3d
Am Pet at ~ 1L Defendant's First Rule 91 a Partial Motion to Dismiss generally outlines the
manner in which the statute of frauds bars this promissory estoppel claim; however; in brief; a
contract for the sale or purchase of real property, 01 one affecting an interest in real propexty, is
subject to the statute of frauds. Old Tzn RoofSteakhouse, LLC v. Haskett, No . 04-12-00363, 2013
WL 1148921, at *7 (Tex . App . -San Antonio, Mar. 20, 2013, no pet) (mem. op) (citing Tex.
Bus . & Comm . Code§ 26.0l(a)(4)). As such, any alleged promise to purchase, sell, or iransfer a
real property interest, such as a promise to transfer home owne1ship in this case, must satisfy the
statuto1y prerequisites of the statute of frauds.. See, e.g, Fontenot v.. Ham.IJ; No . 11-10-00016, at
*3 (Tex. App . -Eastland Aug. 31, 2011, pet. denied) ("agreement is su~ject to the Statute of
Frauds because it relates to the conveyance of real property interests ......"). In such cases, Texas
law specifically requires that:
A promise or agreement [su~ject to the statute of frauds] is not
enforceable unless the promise or agreement, or a memorandum of
it, is (1) in wxiting and (2) signed by the person to be charged with
the promise or agreement or by someone lawfully authorized to
sign for him.
TEx. Bus . &COMM. CODE§ 26.0l(a)..
L
Received Time Feb 3. 9:44AM
Feb 3 2015 9:48AM No 7814 P. 6
fo this case, Plafutiff's First Amended Petition conceded that Defendant .Jones's alleged
promise to "buy her a house" was made 01ally and, thus, could be subject to the statute of frauds
See Ex. 3, Pl.'s 1st Am. Pet. at if 28. To avoid dismissal of her promissoxy estoppel claim,
Plaintiff has now amended her pleading to allege that the statute of frauds is inapplicable because
"Defendant Jones promised he would sign the necessary documents to give Plaintiff full and
complete ownership of the home . .,," Id. at if 24 .
Plaintiff's amended promissory estoppel claim is nonetheless deficient, as a matter of
law, and shouid be dismissed. ~laintiffbaldly alleges "Defendant Jones promised he would sign
the necessary documents to give" Plaintiff ownership of the home . Ex. 5, PL's 3d Am . Pet. at if
24. However, promissory estoppel claims only avoid "the traditional Statute of Frauds when the
alleged 01al promise is to sign an existing document that satisfies with the Statute of Frauds."
Bank of Tex, NA. v. Gaubert, 286 S W..3d 546, 553 (Tex . App . -Dal!as 2009, pet denied)
(emphasis in original). Thus, even if Plaintift's allegations were accepted as true, she has failed
to allege Defondant Jones promised to sign existing documents capable of transferdng owuexship
of the property at issue, nor does she specifically allege that such documents had in fact in been
drafted at the time the promise was allegedly made.. In cases with facts and allegations like this
one, courts have held the promissory estoppel exception to the statute of frauds is inapplicable
and dismissed such claims with prejudice.. See id., see also Coastal Corp.. v. Atl Richfield Co,
852 S.W.2d 714, 718 (Tex. App.-Co1pus Christi, no writ) ("Promissory estoppel is applied
when a party promises to sign an existing written contract that would satisfy the statute of frauds,
but for the lack of a signature.. When a document remains to be prepared, as in this case, all of
the te1ms must ultimately be agreed to in writing") (emphasis in original).. Because Plaintiff's
4
Received Time Feb 3 9:44AM
Feb, 3 2015 9:49AM No 7814 P. 7
promisso1y estoppel allegations, accepted as true, do not establish this exception to the stature of
frauds, Plaintiff's claim must be dismissed with prejudice,,
B, Plaintiff's Conspiracy Claim Barred by Intra-Corporate Immunity Doctrine.,
l'laintiffs Second and Third Amended Petitions allege, for the first time in this matter, a
conspiracy claim against Defendant Donbavand and Jones, This claim specifically alleges
Donbavand "acted with intent to assist" other Defendants in "wrongful acts toward Plaintiff;
including the discriminatory practices perpetrated,'' Ex, 5, 3d Am, Pet at mf 35c37, Plaintiff's
live pleading concedes that Donbavand is "a business partner of Defendant Jones," and that
DefondantJones is President & CEO ofDefendantFMP, Id. at mf 16, 27,
Plaintiff's conspiiacy claim is barred, as a matter of law, because it is alleged against
Defendants Donbavand and Jones, who are both agents of Defendant FMP Indeed, by naming
FMP as a Defendant in this lawsuit, Plaintiff has herself alleged that Ponbavand's and Jones's
alleged acts were not made in their individual capacities but, instead, committed in the comse
and scope of their agency with that corporate entity, ''Employees or agents of a pdncipal acting
within the CO\U'Se and scope of their employment or agency relationship cannot enter mto a
conspiracy with each other so long as they are not acting outside their capacity as an employee or
agent , " Crouch v Trinque, 262 S,,W3d 417, 427 (Tex, App,,-Eastland 2008, no pet); see also
Atl. Richfield Co v, Misty Prods,, Inc, 820 S,W,2d 414, 420-21 (Tex,, App-Houston [141h Dist.]
1991, writ denied) ("An employee or agent of the parent co1po1ation and an employee or agent
of the wholly owned subsidiary , , . cannot conspire"),, Because Donbavand and Jones, both
agents of FMP, were incapable, as a matter of law, from conspiring with one anothe1; Plaintiff's
conspiracy claim should be dismissed with prejudice
5
Received Time Feb 3 9:44AM
Feb. 3 2015 9:49AM No 7814 p 8
C Plaintiff's Conspiracy Claim Barred by Exclusive Statutory Remedies:.
1. State Law Claims "Entwined" with Statutory Claims are Preempted as a
Matter of Law.
Chapter 21 of the Texas Labor Code is designed to be the exclusive means by which a
party can vindicate her statutory rights as it pertains to unlawful harassment or discrimination.
Wheatfall v. Potter, No. 07-1937, 2010 WL 2854284, "'4 (SD. Tex July 19, 2010) (federal anti-
discrimination statutes, such as Title VII, 1 "provide the exclusive, pre-emptive administrative
and judicial scheme for the redress of federal employment discrimination").. As a result, a
claimant's statutory harassment and discrimination claims are preemptive when the complained-
of conduct is entwined with the underlying complained-of discriminatory or retaliatory conduct.
See Mosley v. Wal-Mart Stores Tex. LLC, No 3:10-cv·-2305, 2011 WL 2893086, *3 (ND . Tex .
July 20, 2011).. As the Mosley court explains, when:
the gravamen of a plaintiff's case is fox sexual harassment, the
plaintiff must proceed solely under a statutory claim unless there
are additional facts, unrelated to sexual harassment, to support an
independent to1t claim . .... allowing [tort] damages for a TCHRA
violation would eclipse the Legislature's prescribed scheme.
Id In other words, Texas state common law conspiracy claims are preempted whenever they are
"entwined" with or arise from the same facts suppolting a statutory discrimination claim., In
such situations, the preempted claims must be dismissed as a matter of course, with the claimant
left solely to rely upon the exclusive, statutory remedial scheme provided by the Texas
Legislature .
1
The express purpose of Chapter 21 is "to provide for the execution of the policies of Title VII of the Civil
Rights Act of 1964 . ," De Sanriago" Wesi Tex. Comm Supervision & Corrections Dept., 203 S..W.3d 387, 391
(Tex. App. -EI Paso 2006, no pet}. "In light of tills express pmpose, we look ro analogous federal precedent when
interpreting the Texas Act" Id
6
Received Time Feb 3 9:44AM
Feb 3 2015 9:50AM No. 7814 p 9
2.. Plaintiff's Conspitacy Claitn Relies on Satne Under·lying Facts as Statutory
Chapter· 21 Claitns, RequiJ'ing Their Dismissal.
In this case, Faire's conspiracy claim is not in any way factually distinct from he!'
Chaptex 21 sexual hruassment and discrimination claims. Jn fact, Faixe's Third Amended
Petition unambiguously alleges that her conspixacy claim is p1emised on the same factual
allegations supporting hex Chapter 21 claims. See Ex. 5, 3d Am . Pet. at ifif 36-37 (alleging
"Defendant Donbavand acted with intent to assist Defendant Jones in discrimmatory
practices perpetrated against Plaintiff ..... "}. Stated differently; Faix e's Third Amended Petition
is devoid of any specific factual allegations related specifically and only to her conspiracy claim.
In the absence of specific, distinct factual allegations, this Court can only conclude that Faire's
conspirncy claim is "entwined" with her statutory harnssment and discrimination retaliation
claims . As a r·esult, Faire's statutory claixns provide her exclusive remedy, preempt her common
law conspiracy claixn, and that claim should be dismissed with prejudice.
IV:. CONCLUSION & PRAYER
Plaintiff's claims in this mattex are, by and large, legally baseless and factually deficient.
Fix st, Plaintiff's claims fol' promissoxy estoppel are baxred by the statute of frauds, as they are
premised upon an oral and unwritten promise to effect the transfer of title to real estate.
Furthermore, Plaintiff has failed to establish any exception to the Statute of Frauds, as a matter of
law. Second, Plaintiff's conspiracy claim against Defendants is barred by the doctrine of intra-
corporate immunity.. Finally, Plaintiff's conspiracy claim is barred by her exclusive statutory
remedies afforded by Chapter 21.. As such, Defendants pray the Court dismiss these claims with
prejudice pw·suant to Texas Rule of Civil Procedure 91a and for all other relief to which they
may be entitled.
r
7
Received Time Feb 3 9:44AM
Feb 3 2015 9:50AM No 7814 P. 10
Respectfully submitted,
Chi:istine E. R~inhard ' · · ·.
State Bar No. 24013389
Shannon B. Schmoyer
State B8l No. 17780250
Justin Bai:bour
StateBarNo. 24055142
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
Phone: (210) 447-8033
Fax: (210) 447-8036
creinhard@,sr-llp.com
sschmoye1@,s1cllp.com
jbarbour@sr-Ilp.com
ATTORNEYS FOR DEFENDANTS FMP SA
MANAGEMENT GROUP, LLC, D/B/A
FOOD MANAGEMENT PARTNERS, LLC,
ALL JONES, LLC, ALLEN J, JONES, AND
PETER DONBAVAND
FIAT
The foregoing Amended Rule 9la Partial Motion to Dismiss is hereby set for hearing at
8::30 a..m. on Mru:ch 18, 2015 in the Presiding District Cou1t, Bexar County Courthouse,
San Antonio, Texas.
Signed on this _ _ _ day ofFebiuary, 2015.
JUDGE PRESIDING
8
Received Time Feb 3. 9:44AM
Feb 3 2015 9:50AM No.7814 P 11
CERTlFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served via electronic service,
facsimile and certified mail, return receipt requested, to:
Olga Brown
Law Office of Olga Brown
111 Soledad, Suite 1725
San Antonio, Iexas 78205
(210) 226-1884 (facsimile)
argyle2@sbcglobal.net
on this 3xd day ofFebxwuy, 2015.
/)~¥'.?..a~
(fe~'
Christine E. Reinhard
9
Rec ei ved Time Feb 3 9: 44AM
Feb 3 2015 9:50AM No 7814 P. 12
EXHIBIT 1
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Received Time Feb 3, 9:44AM
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No 7814 . P 13
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FILED ,
10121/2014 4:04:2j PM 4 CITS PPS W/JD • SAC2
Donn• Kay McKinney
BeXar County District Clerf<
Accepted By~ Marc Garcia
CAUSE NO. 2014~!16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
v. §
§ 15QTH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, Al LEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF'S ORIGINAL PETITION &
REQUEST FOR DISCLOSURE
Plaintiff, Cearth Faire, files this original petition and request for disclosure
against defendants, Fmp Sa Management Group, LLC, D/B/A Food Management
Partners, LLC, All Jones, LLC, Allen J Jones, and Peter Donbavand, and alleges as
follows:
DISCOVERY-CONTROL PLAN
L Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil
Prnced11re 190 4 and affirmatively pleads that this snit is not governed by the
expedited-actions process in Texas Rule of Civil Procedure 169 because she may
seek Injunctive relief..
CLAIM FOR RELIEF
2.. Plaintiff seeks monetary relief over $200,000 . 00 but not more than
$3,000,000 .. QO .
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Received Time Feb. 3. 9:44AM
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PARllES
3.. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place,
San Antonio, TX 78250 .
4.. Defendant FMP SA MANAGEMENT GROUP, LL.C, D/B/A FOOD
MANAGEMENT PARTNERS, LLC is an active lexas Lirnit.ed Liability Company
conducting business in the State of Texas, and may be served by and through its
registered agen,t for service of process, Peter Donbavand, 120 Chula Vista, Hollywood
Park, Texas 78232 .
5.. Defendant ALL JONES, LLC is an active Texas Limited Liability
Company conducting business in the Sfate of Texas, and may be served by and
through its registered agent for service of process, Peter Donbavand, 120 Chula Vista,
Hollywood Park, Texas 78232.
6.. Defendant Allen J Jones, is an individual whose address is 73 l.a
Escalera, San Antonio, Texas 78261
7.. Defendant Peter Donbavand, is an individual whose business address
is, Food Management Partners, l.L.G 120 Chula Vista, San Antonio, TX 78232
JURISDICTION
8. The Court has subject-matter jurisdictjon over the lawsuit because the amount
in controversy exceeds this Court's minimum jurisdictional requirements.
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Received Time Feb 3 9:44AM
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VENUE
9.. Venue is proper in Bexar County as all or a substantial part of the events or
omissions giving rise to the claim occurred in Bexar County.
FACTS
10.. Plaintiff Faire was an employee of Defendants, as well as a personal
assistant to Defendant Jones. Plaintiff, in addition to working for Defendants'
businesses, also took care of Defendant Jones' personal matters, including living in
the Dominican Republic for over five months on a 24/7 basis assisting in his defense
in a family law matter.
11.. Defendant Jones in recognition for her loyal and tireless services
assumed the role of her benefactor .. In his role as a benefactor Defendant Jones
promised Plaintiff that he would buy her a home so she would never have worries
about a residence. Defendant Jones developed a scheme for the purchase of the
house that included an authorization that Plaintiffs pay scale would be increased to
cover the house payments . Defendant Jones intended to hide the gift from the other
Defendants named in this lawsuit. Defendants have a real estate department as part
---,----------·---·--'--- ··------------
of their businesses.
12.. Although Defendant Jones intended to disguise the gift of the ~esidence
from his business partners, nevertheless he authorized for the necessary real estate
transactions to be initiated that would result in a purchase transaction with Piaintiff as
the owner. Plaintiff relied on Defendant Jones' promise and she moved into the
residence at 8647 Timber Place, San Antonio, Texas 78250 .
Rec ei ved Time Feb 3 9: 44AM
Feb.. 3. 201 5c 9: 52AM " ..
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13.. Plalntiff incurred moving expenses as well as expenses in making
repairs to the residence to make it habitable. The residence is still in need of
significant repairs . An inspectisin was ordered by the defendants as further proof of
Defendant Jones' promise of the gift Further, in reliance that the home would be
given to her, Plaintiff agreed to sign a one-month lease .
14.. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent
promotion based on meritorious work .. Defendant Jones has also conspired with the
other defendants including Defendant Peter Donabavand to evict Plaintiff from the
house she was promised.. The wrongful eviction proceedings are currently pending in
justice of the peace court
15. Defendants continue to harass the Plaintiff although they have been put
on notice that question of title is so integrally linked to the issue of possession, that
the justice court is without jurisdiction over the matter . The title to the property is one
of the facts that give rise to this lawsuit. Plaintiff suffers from mental anguish as a
result of the conduct of Defendant Jones and the other defendants who have
·conspired with Defendant Jones . --·--·-.-------
,............
Count 1 Promissory Estoppal as a Claim
16.. Defendant Jones promised the Plaintiff that he would purchase a
residence for her. He promised that he would buy the home owned by another partner.
Received Time Feb 3 9:44AM
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The financing of the purchase was designed so as to be disguised as follows: Plaintiff
was to receive and did rt".ceive a raise to cover the monthly payments Defendant
Jones also promised Plaintiff lifetime employment.
17.. All the necessary real estate documents weie ordered by Defendant
Jones.
18.. Plaintiff relied on Defendant Jones' promise because the nature and
subject of the promise was reasonable in the context of the relationship betvveen the
Plaintiff and Defendant Jones. Plaintiff's reliance on the promise was also reasonable
and substantial, and she moved into the residence incurring moving and repair
expenses .
19 Defendant Jones knew or reasonably should have known, that Plaintiff
would rely on Defendant's promise Injustice to Plaintiff can be avoided solely if
Defendant's promise is enforced . Plaintiffs reliance on Defendant Jones' promise (s)
resulted in injury to Plaintiff which caused economic as well as non-economic
damages . Plaintiff seeks damages within the jurisdictional limits of the court.
---Lo:- l"'urthet, Platntlff l!i entllll!d to recover reasonable and 1\eM§!;ary attOrney
fees under Texas Civil Practice & Remedies Code section 38 . 001(8) because this suit
is for promissory estoppeL
21 . On or about July 25, 2014 at the office of FMP SA Management Group, LLG,
d/b/a Food Management Partners, LLC, hereinafter "FMP", 120 Chula Vista, San
Antonio, Bexar County, Texas, Allen J .Jones, President of FMP, and benefactor of
Received Time Feb. 3 9:44AM
Fe b. 3 201 5 9... ,.53AM ,. 18
No. 78 1t.'. }. .,.:;
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Plaintiff, made a promise to purchase a home for Plaintiff, located at 8647 Timber
Place, San Antonio, Texas 78250, for Plaintiff, Cearth Faire, negotiating a temporary
lease pending the purchase of the home for her
22. At the direction of Defendant Jones, Defendant Peter Donbavand, Vice
President of Real Estate ~ Business Development for Defendant FMP, commenced
the process of purchasing the home at 8647 Timber Place, San Antonio, Texas
78250, for Plaintiff. Defendants' actions in furtherance of the promise, included but
were not limited to contracting for an inspection and repairs for the home, prior to
purchase .
23.. At the direction of Defendant Jones, Defendant Donbavand negotiated a
temporary lease agreement between, Tara Kemp, the owner of the home at 8647
Timber Place, and Plaintiff, pending closing of !hat purchase on or about September
15, 2014 . Defendant Donbavand prepared the one-month lease pending the closing
of the sale.
24.. Relying on the promise to purchase, and subsequent actions on the part of '
Defendants, Plaintiff Faire gave notice to vacate her prior address ..
25. On or about August 30, 2014, Plaintiffs employment with Defendant FMP was
abruptly terminated, without notice or good cause connected with the work.. Her
employment was terminated after several years, and following a recent promotion and
pay increase. Defendant Jones had promised Plaintiff lifetime employment based on
her willingness to work around the clock if necessary.
Rec ei ved Time Feb. 3 9: 44AM
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26. Employees of Defendants All Jones, LLC, and FMP, under the direction and
control of Defendants Jones and Donbavand, were instrncted, and did demand and
collect Plaintiffs personal iPhone, iPad, and computers.. Defendants then h;id access
to all her security and passwords, including her bank account, which they accessed.
27.. On or about September 8, 2014, at the direction of Defendants Jones and
Donbavand, FMP employee Jessica DelaTorre personally delivBred a Notice to
Vacate Property, to Plaintiff at her home at 8647 Timber Place.
COUNT I • Promlssol)' Estoppel As A Claim
28.. Defendant Jones made a promise to the Plaintiff that he would buy her a
house . The said house was owned by Tara Kemp, the wife of his partner, Jason
Kemp. Defendant Jones assured Plaintiff that the official real estate documents for
conveyance were being prepared . Defendant wanted Plaintiff to own the house in
consideration for her loyal employment during the past years . The nature of the
promise was one that was reasonable considering the special relationship between
the parties.
detriment Her reliance was foreseeable by Defendant Jones and other Defendants
acting in concert with Jones.. Further, Defendants have actual knowledge of her
reliance In that in furtherance of Jones' promise to purchase the house for her,
Plaintiff made numerous improvements to the home Defendant Jones promised her.
Plaintiff sustained economic damages as a result and great injustice can be avoided
only by enforcing the Defendanrs promise. r
Received Time Feb. 3 9:44AM
30.. Defendant Jones knew or reasonably should have known, U1at Plaintiff
would rely on Defendant's promise. Injustice to Plaintiff can be avoided solely if
Defendant's promise is enforced.. Plaintiff's reliance on Defendant Jones' promise (s)
resulted In Injury to Plaintiff which caused economic as well as non-economic
damages . Plaintiff seeks damages within the jurisdictional limits of the court
31.. Further, Plaintiff is entitled to recoverreasonable and necessary attorney
f~es under Texas Civil Practice & Remedies CO de section 38 . 001 (8) because this suit
is for promissory estoppeL
COUNT 11- WRONGFUL TERMINATION
32. Over two years ago Plaintiff and Defendants entered into a valid and
enforceable written employment agreement. Throughout the term of employment,
Defendant Jones incessantly praised Plaintiff for her efforts both as to the companies
and to his personal requii·ements. Defendant Jones accordingly gave her pay raises
and 9ther benefits.
33. \JV lthln two weet<:s ol l'ler latest pay rnJSe, Oefentlati! Jones breached the -
employment agreement by firing her without cause . Defendant Jones has failed to
meet the terms of the agreement His breach has caused injury to the Plaintiff which
resulted in economic damages including but not limited to her mqnthly salary, benefits
and a severance package . Plaintiff seeks unliquidated damages within the
jurisdictional limits of this Court.
Received Time Feb 3 9:44AM
..
::::.: ..
34.. Defendant Jones' accessing of her personal bank account and
Facebook account and other private matters would be offensive to a reasonable
person . Plaintiff has confirmed with her bank of Defendant Jones' intrusion via the
internet
COUNT Ill - CONVERSION
35. Plaintiff owned several items of electronic personal property that
included an !phone and an lpad load with personal information and private pass codes
including to bank accounts . Defendants wrongfully acquired and exercised dominion
and control over Plaintiff's personal property and invade her right to privacy .
Defendants have refused to return Plaintiffs personal property and continue to
harass Plaintiff by illegally accessing her email accounts.
36. Plaintiff has made numerous attempts to get her personal
property by means of written communications with Defendant Jones . He intentionally
and willfully contlnues to exercise dominion and control over Plaintiff's personal
property including electronic information. Defendants' wrongful acts have proximately
and directly caused injury to the Plaintiff, which have resulted in economic and non-
eeono111ie dainagl!!S. Plaintiff seeks 1ettin1 mti 1e etinoeffod prepefly a11d tf'ie damages
within the jurisdictional limits of the Court..
37.. Further, Plaintiff seeks exemplary damages against all
Defendants as her injury resulted from Defendants' malice, which entitles Plaintiff to
exemplary damages under rex. Civ . P .. & Remedies Code section 41..003(a). Plaintiff
is also entitled to recover reasonable attorney fees under the Texas Property Code,
because this claim is to recover her personal property .
Received Time Feb 3 9:44AM
JURY DEMAND
38.. Plaintiff demands a jury trial and tenders the appropriate fee with thi$ petition .
CONDITIONS PRECEDE'.NT
39.. All conditions precedent to plalntifrs claim for relief have been performed or
have occurred ..
REQUEST FOR DISCLOSURE
40 . Under Texas Rule of Civil Procedure 194, plaintiff requests that defendant
disclose, within 50 days of the service of this request, the information or
material described in Rule 194..2 .
OBJECTION TO ASSOCIATE JUDGE
41 . Plaintiff objects to the referral of this case to an associate judge for hearing a
trial on the merits or presiding at a jury trial.
PRAYER
For these reasons, plaintiff asks that defendant be cited to appear and answer
and, on final trial, that plaintiff be awarded a judgment against defendant for the
following:
a. Economic and non-economic damages including, but not limited to back
pay, front pay, severance pay, specific performance regarding the gift
purchase of a home (or its morietary equivalent)..
b.. Prejudgment and postjudgment Interest
c.. Court costs .
Received Time Feb 3 9:44AM
d. Attorney's fees
e. All other relief to which plaintiff is entitled.
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
l
Argyle2@sbcglobal.net
By: Isl Olga Brown_
OLGA BROWN
State Bar No. 03155500
Attomey for Plaintiff
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Received Time Feb 3 9:44AM
Feb. 3 2015 9:55AM No 7814 P. 24
EXHIBIT 2
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Received Time Feb. 3 9:44AM
Feb 3 2015 9:55AM No 7814 P. 25
FILED
11126/2014 11:17:31 AM
Donna Kay McKinney
Bexar County District Cieri<
Accepted By: Maria Abilez
CAUSE NO. 2014-Cl-16674
CEARTHFAIRE, § IN THE DlSTRlCT COURT
§
Plaintiff, §
§
v. §
§
FMP SA MANAGEMENT GROUP, LLC § 150TH JUDIClAL DIS IRJCI
d/b/aFOOD:MANAGEMENTPARTNERS, §
LLC, ALL JONES, LlC, ALLEN L JONES §
INDIVIDUALLY, AND PETER §
DONBAVAND, INDIVIDUALLY §
§
Defendants.. § BEXAR COUNTY, TEXAS
DEFENDANTS' GENERAL DENIAL, DEFENSES &
REQUEST FOR DISCLOSURES TO PLAINTIFF
For their Answer to Plaintiff's Original Petition, Defendants FMP SA Management
Gxoup, LLC d/b/a Food Management Pa1tnexs, LLC, All Jones, LLC, Allen l. Jones, and
Peter Donbavand (collectively, "Defendants") respectfully show the following:
l.
GENERAL DENIAL
Pursuant to Texas Rule of Civil Procedure 92, Defendants generally deny each and every
allegation contained in Plaintiff's 01iginal Petition, and demand strict proof thereof as required
by the Constitution, Statutes, Laws and Texas Rules of Civil Procedure .
II.
DEFENSES
1.. Fails to State a Claim -Plaintiff fails to state a claim, in whole or in pID:t, in her
:Petition upon which relief can be granted.
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1
Rec e i ved Time Feb 3 9: 44AM
Feo 3 2015 9:55AM No 7814 p 26
2.. Conditions Precedent - Plaintiffs claims are barred, in whole or in part, by the
applicable statutes of limitations and/or her failure to satisfy required conditions precedent,
including any applicable administrative prerequisites.
3. :Express Contract- Plaintiff's claims may be baned, in whole or in part, because
the alleged promises at issue in her Petition were subject to a valid, express contract between the
parties.
4.. Statute of Frauds - Plaintiff's claims may be barred, in whole or in paxt, by the
statute of frauds .
5. Lack of Consideration - Plaintiffs claims may be baned, in whole or in part,
because the alleged contracts at issue in her Petition were not supported by mutual consideration .
6.. Failure of Consideration - Plaintiffs claims may be barred, in whole or in part,
because Plaintiff failed to peifoxm a condition precedent to Defendants' alleged duties to
perform, if any.
7.. Wrongfully Acauired Possession -Plaintiff's claims for alleged conversion may
be barred because Plaintiffwiongfully acquired the underlying items and/or property.
8. Superior Title - Plaintiff's claims may be baxred, in whole 01 in part, because
Defendants had superior title or right to the underlying items and/or propert'··
9. Conipan1tive Negligence/No Proxiniate Cause - Plaintiff's damages and losses,
if any, were the result of Plaintiff's own conduct and/or omissions, and wer·e not pxoximately
caused by Defendants' actions and/or omissions .
10. Equitable Defenses -Plaintiff's claims may be barred, in whole oz in part, by the
doctrines of waiver, estoppe!, collateral estoppel, res judicata, £n pari delicro, and unclean hands .
2
Received Time Feo. 3 9:44AM
Feb 3 2015 9:56AM No. 7814 P. 27
11 Failure to Mitigate - Plaintiff has failed to exercise reasonable care and
diligence to mitigate her damages, if any .
12. Offset -Plaintiff's damages and losses, if any, should be reduced by llllY and all
interim eru:nings .
13.. Right to Amend or· Supplement -Defendants reserve the right to amend or
supplement their Answer in accordance with the I exas Rules of Civil Procedure.
Ill.
REQUEST FOR DISCLOSURE
Pursuant to Texas Rule of Civil Procedure 194, Defendants request that Plaintiff disclose,
within 30 days of service of this request, the information or material described in Rule 194 2.
rv.
PRAYER
Defendants request that, upon fmal hearing, the Court dismiss this lawsuit in its entirety
and ordeI' Plaintiff to take nothing by reason of this action; 01der Plaintiff to pay Defendants the
aa:omey' s fees and costs ihey have incurred and will incur in defending this action; and grant
Defendants all other relief to which it may be entitled .
DATED this 26th day of November, 2014 .
3
Received Time Feb 3 9:44AM
Feb 3 2015 9:56AM No. 7814 P. 28
hristirie E.Reinhil.id · ···
State Bar No. 24013389
Shannon B. Schmoyer
State Bar No. 17780250
Justin Bru:bour
State Bar No . 24055142
SCHMOYER REINHARD LLP
17806 lH 10 West, Suite 400
San Antonio, Texas 78257
Phone: (210) 447-8033
Fax: (210) 447··8036
cteinhood@sr-llp.com
sschmoyer@sr-llp.com
jbarbour@s1-lJp.com
ATTORNEYS FOR DEFENDANTS FMl' SA
MANAGEMENr GROUP, LLC, D/B/A
FOOD MANAGEMENT PARTNERS, LLC,
ALL JONES, LLC, ALLEN J; JONES, AND
PETERDONBAVAND
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served via catified mail,
return receipt requested, to:
Olga Brown
Law Office of Olga Brown
111 Soledad, Suite 1725
SanAntonio, Texas 78205
(210) 226-1884 (facsimile)
argyle2@sbcglobal.net
on this 26th day ofNovember, 2014 .
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Received Time Feb . 3 9:44AM
Feb 3 2015 9:56AM No 7814 P. 29
EXHIBIT 3
Received Time Feb 3 9:44AM
Feb 3 2015 9:56AM No 7814 P. 30
CAUSE NO. 2014-Cl-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
v. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF'S AMENDED ORIGINAL PETITION
Plaintiff, Cearth Faire, files this Amended Original Petition against defendants,
Fmp Sa Management Group, LLC, D/B/A Food Management Partners, LLC, All Jones,
LLC, Allen J Jones, and Peter Donbavand, and alleges as follows:
DISCOVERY-CONTROL PLAN
1 Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil
Procedure 190 . 4 and affirmatively pleads that this suit is not governed by the
expedited-actions process in Texas Rule of Civil Procedure 169 because she may
seek injunctive relief.
CLAIM FOR RELIEF
2.. Plaintiff seeks monetary relief over $200,000 . 00 but not more than
$3,000,000 00 .
Received Time Feb 3 9:44AM
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Feb, 3 2015 9:57AM No 7814 P. 31
PARTIES
3, Plaintiff, Gearth Faire, is an individual whose address is 8647 Timber Place,
San Antonio, TX 78250,
4,, Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD
MANAGEMENT PARTNERS, LLG is an active Texas Limited Liability Company
conducting business in the State of Texas, and has been served and is represented by
counsel, and is properly before this court,,
5., Defendant ALL JONES, LLC is an active Texas Limited Liability
Company conducting business in the State of Texas, and and has been served and is
represented by counsel, and is properly before this court
6,, Defendant Allen ,J Jones, is an individual who has been served and is
represented by counsel, and is properly before this court
7. Defendant Peter Donbavand, is an individual has been served and is
represented by counsel, and is properly before this court.
JURISDICTION
8., The Court has subject-matter jurisdiction over the lawsuit because the
amount in controversy exceeds this Court's minimum jurisdictional requirements,,
VENUE
9., Venue is proper in Bexar County as all or a substantial part of the events or
omissions giving rise to the claim occurred in Bexar County,,
2
Received Time Feb, 3 9:44AM
Feb, 3 2015 9:57AM No 7814 P. 32
FACTS
10,, Plaintiff Faire was an employee of Defendants, as well as a personal
assistant to Defendant Jones,, Plaintiff, in addition to working for Defendants'
businesses, also took care of Defendant Jones' personal matters, including living in
the Dominican Republic for approximately five months on a 24/7 basis assisting in his
defense in a family law matter, Plaintiff has not been properly compensated for her
seNices,
11, Defendant Jones in recognition for her loyal and tireless seNices
assumed the role of her benefactor. In his role as a benefactor Defendant Jones
promised Plaintiff that he would buy her a home so she would never have worries
about a residence,, Defendant Jones developed a scheme for the purchase of the
house that included an authorization that Plaintiff's pay scale would be increased to
cover the house payments, Defendant Jones intended to hide the gift from the other
Defendants named in this lawsuit Defendants have a real estate department as part
of their businesses,,
12,. Although Defendant Jones intended to disguise the gift of the residence
from his business partners, nevertheless he authorized for the necessary real estate
transactions to be initiated that would result in a purchase transaction with Plaintiff as
the owner, Plaintiff relied on Defendant Jones' promise and she moved into the
residence at 8647 Timber Place, San Antonio, Texas 78250,,
13,, Plaintiff incurred moving expenses as well as expenses in making
repairs to the residence to make it habitable, The residence is still in need of
Received Time Feb 3 9:44AM
Feb 3 2015 9:57AM No 7814 P. 33
significant repairs. An inspection was ordered by the defendants as further proof of
Defendant Jones' promise of the gift. Further, in reliance that the home would be
given to her, Plaintiff agreed to sign a one-month lease .
14. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent
promotion based on meritorious work .. Defendant Jones has now conspired with the
other defendants including Defendant Peter Donabavand to evict Plaintiff from the
house she was promised. The wrongful eviction proceedings were abated, as the
justice of the peace court Jacks jurisdiction to rule on the petition for eviction.
Defendants have not withdrawn their petition for eviction, as further proof of the
Defendant Jones' promise to Plaintiff.
15.. Defendants continue to harass the Plaintiff by wrongfully repossessing
her car Plaintiff had clear title to her 2005 Mini cooper . Jones promised her an
ambiguous payment plan, and in retaliation for claiming her rightful title to her house,
he has deprived Plaintiff of a necessity to seek employment During the
repossession process, he terrorized her by sending strangers to ring her doorbell, all
while he owns a million dollars worth of automobiles, and spends a great deal of his
time in the Dominican Republic .
Count 1 Promissory Estoppel as a Claim
16. Defendant Jones promised the Plaintiff that he would purchase a
residence for her.. He promised that he would buy the home owned by another partner.
The financing of the purchase was designed so as to be disguised as follows: Plaintiff
was to receive and did receive a raise to cover the monthly payments. Defendant
4
Received Time Feb 3 9:44AM
Feb 3 2015 9:58AM No 7814 P. 34
Jones also promised Plaintiff lifetime employment
17.. All the necessary real estate documents were ordered by Defendant
Jones .
18.... Plaintiff relied on Defendant Jones' promise because the nature and
subject of the promise was reasonable in the context of the relationship between the
Plaintiff and Defendant Jones . Plaintiff 's reliance on the promise was also reasonable
and substantial, and she moved into the residence incurring moving and repair
expenses .
19.. Defendant Jones knew or !·easonably should have known. that Plaintiff
would rely on Defendant's promise.. Injustice to Plaintiff can be avoided solely if
Defendant's promise is enforced Plaintiff's reliance on Defendant Jones' promise (s)
resulted in injury to Plaintiff which caused economic as well as non-economic
damages.... Plaintiff seeks damages within the jurisdictional limits of the court
20.. Further, Plaintiff is entitled to recover reasonable and necessary attorney
fees under Texas Civil Practice & Remedies Code section 38 . 001 (8) because this suit
is for promissory estoppeL
21.. On or about July 25, 2014 at the office of FMP SA Management Group, LLG,
d/b/a Food Management Partners, LLC, hereinafter "FMP", 120 Chula Vista, San
Antonio, Bexar County, Texas, Allen J Jones, President of FMP, and benefactor of
Plaintiff, made a promise to purchase a home for Plaintiff, located at 8647 Timber
Place, San Antonio, Texas 78250, for Plaintiff, Cearth Faire, negotiating a temporary
lease pending the purchase of the home for her. .
22 At the direction of Defendant Jones, Defendant Peter Donbavand, Vice
l
Received Time Feb . 3 9:44AM
Feb. 3 2015 9:58AM No 7814 P. 35
President of Real Estate & Business Development for Defendant FMP, commenced
the process of purchasing the home at 8647 Timber Place, San Antonio, Texas
78250, for Plaintiff.. Defendants' actions in furtherance of the promise, included but
were not limited to contracting for an inspection and repairs for the home, prior to
purchase .
23. At the direction of Defendant Jones, Defendant Donbavand negotiated a
temporary lease agreement between, Tara Kemp, the owner of the home at 8647
Timber Place, and Plaintiff. pending closing of that purchase on or about September
15, 2014. Defendant Donbavand prepared the one-month lease pending the closing
of the sale .
24.. Relying on the promise to purchase, and subsequent actions on the part of
Defendants, Plaintiff Faire gave notice to vacate her prior address.
25.. On or about August 30, 2014, Plaintiffs employment with Defendant FMP was
abruptly terminated, without notice or good cause connected with the work.. Her
employment was terminated after several years, and following a recent promotion and
pay increase. Defendant Jones had promised Plaintiff lifetime employment based on
her willingness to work around the clock if necessary.
26.. Employees of Defendants All Jones, LLC, and FMP, under the direction and
control of Defendants Jones and Donbavand, were instructed, and did demand and
collect Plaintiffs personal iPhone, iPad, and computers. Defendants then had access
to all her security and passwords, including her bank account, which they accessed.
6
Received Time Feb. 3 9:44AM
Feb 3 2015 9:59AM No 7814 P. 36
27. On or about September 8, 2014, at the direction of Defendants Jones and
Donbavand, FMP employee Jessica DelaTorre personally delivered a Notice to
Vacate Property, to Plaintiff at her home at 8647 Timber Place .
COUNT I - Promissory Estoppel As A Claim
28.. Defendant Jones made a promise to the Plaintiff that he would buy her a
house. The said house was owned by Tara Kemp, the wife of his partner, Jason
Kemp.. Defendant Jones assured Plaintiff that the official real estate documents for
conveyance were being prepared.. Defendant wanted Plaintiff to own the house in
consideration for her loyal employment during the past years. The nature of the
promise was one that was reasonable considering the special relationship between
the parties, and the multi-million dollar net worth of the Defendant Jones, that includes
approximately one million dollars worth of automobiles .
29.. Plaintiff Faire reasqnably and substantially relied on the promise to her
detriment Her reliance was foreseeable by Defendant Jones and other Defendants
acting in concert with Jones.. Further, Defendants have actual knowledge of her
reliance in that in furtherance of Jones' promise to purchase the house for her,
Plaintiff made numerous improvements to the home Defendant Jones promised her.
Plaintiff sustained economic damages as a result and great injustice can be avoided
only by enforcing the Defendant's promise, which is reasonable in light of Defendant
Jones' net worth .
Received Time Feb. 3 9:44AM
Feb 3, 2015 9:59AM No 7814 P. 37
30,, Defendant Jones knew or reasonably should have known, that Plaintiff
would rely on Defendant's promise . Injustice to Plaintiff can be avoided solely if
Defendant's promise is enforced. Plaintiff's reliance on Defendant Jones' promise (s)
resulted in injury to Plaintiff which caused economic as well as non-economic
damages,, Plaintiff seeks damages within the jurisdictional limits of the court
31,, Further, Plaintiff is entitled to recover reasonable and necessary attorney
fees under Texas Civil Practice & Remedies Code section 38 .001 (8) because this suit
is for promissory estoppet
COUNT II-WRONGFUL TERMINATION
32,, Over two years ago Plaintiff and Defendants entered into a valid and
enforceable written employment agreement. Throughout the term of employment,
Defendant Jones incessantly praised Plaintiff for her efforts both as to the companies
and to his personal requirements,, Defendant Jones accordingly gave her pay raises
and other benefits,,
33, Within two weeks of her latest pay raise, Defendant Jones breached the
employment agreement by firing her without cause,, Defendant Jones has failed to
meet the terms of the agreement His breach has caused injury to the Plaintiff which
resulted in economic damages including but not limited to her monthly salary, benefits
and a severance package., Plaintiff seeks unliquidated damages within the
jurisdictional limits of this Court,,
8
Received Time Feb 3 9:44AM
Feb 3 2015 9:59AM No 7814 P. 38
34. Defendant Jones' accessing of her personal bank account and
Facebook account and other private matters would be offensive to a reasonable
person . Plaintiff has confirmed with her bank of Defendant Jones' intrusion via the
internet Plaintiff seeks exemplary damages for this outrageous, if not illegal conduct
COUNT Ill - CONVERSION
35.. Plaintiff owned several items of electronic personal property that
included an lphone and an lpad load with personal information and private pass codes
including to bank accounts. Defendants wrongfully acquired and exercised dominion
and control over Plaintiff's personal property and invade her right to privacy .
Defendants have refused to return Plaintiff's personal property and continue to
harass Plaintiff by illegally accessing her email accounts.
36. Plaintiff has made numerous attempts to get her personal
property by means of written communications with Defendant Jones . He intentionally
and willfully continues to exercise dominion and control over Plaintiff's personal
property including electronic information . Defendants' wrongful acts have proximately
and directly caused injury to the Plaintiff, which have resulted in economic and non-
economic damages . Plaintiff seeks return of the converted property and the damages
within the jurisdictional limits of the Court
37.. Further, Plaintiff seeks exemplary damages against all
Defondants as her injury resulted from Defendants' malice, which entitles Plaintiff to
exemplary damages under Tex. Civ P & Remedies Code section 41 . 003(a) Plaintiff
r
Received Time Feb. 3 9:44AM
Feb 3 2015 10:00AM No 7814 P. 39
is also entitled to recover reasonable attorney fees under the Texas Property Code,
because this claim is to recover her personal property .
JURY DEMAND
38.. Plaintiff has demanded a jury trial and tendered the appropriate fee with her
original petition .
CONDITIONS PRECEDENT
39 . All conditions precedent to plaintiff's claim for relief have been performed or
have occurred.
OBJECTION TO ASSOCIATE JUDGE
40. Plaintiff objects to the referral of this case to an associate judge for hearing a
trial on the merits or presiding at a jury trial.
PRAYER
For these reasons, plaintiff asks that defendant be cited to appear and answer
and, c;in final trial, that plaintiff be awarded a judgment against defendant for the
following:
a. Exemplary damages
b. Economic and non-economic damages including, but not limited to back
pay, front pay, severance pay, specific performance regarding the gift
purchase of a home (or its monetary equivalent)
c.. Prejudgment and postjudgment interest
d.. Court costs .
e.. Reasonable and necessary Attorney's fees
10
Rec ei ved Time Feb 3 9: 44AM
Feb 3 2015 10:00AM No 7814 P. 40
f All other relief to which plaintiff is entitled.
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-'1884 facsimile
Arqyle2@sbcglobal.net
By: Isl Olga Brown
OLGA BROWN
State Bar No . 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 5th day of December 2014, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff's Amended Original Petitioner was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10West, Suite 400
San Antonio, Texas 78257
Isl Olga Brown
OLGA BROWN
Received Time Feb 3 9:44AM
Feb 3 2015 10:00AM No 7814 P. 41
EXHIBIT4
[
Received Time Feb 3. · 9:44AM
Feb 3 2015 10:00AM No 7814 P. 42
FILED
1/2812015 4:07:54 PM
Donna Kay McKinney
Bexar County District Cieri<
Accepted By: Monica Hernande~
CAUSE NO. 2014-CJ.16674
CEARTH FAIRE § JN THE DISTRICT
Plaintiff §
§
v. §
§ 1soTH JUDICIAL DISTRICT
FMI> SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION
Plaintiff, Cearth Faire, files this Second Amended Original Petition against
defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners,
LLC, ALL JONES, LLC, Allen J Jones, and Peter Donbavand, and alleges as follows:
DISCOVERY-CON'rROL PLAN
1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil
Procedure 190.4 and affirmatively pleads that this suit is not governed by the
expedited-actions process in Texas Rule of Civil Procedure 169 because she may
seek injunctive relief. Plaintiff has a pending Motion for a Level Three Docket Control
Order, and the parties entered into a Rule 11 Agreement showing intent to enter into
an Agreed Docket Control Order and setting this matter for Jury Trial November 2,
2015 See Exhibit A.
Received Time Feb. 3 9:44AM
Feb. 3 2015 10:01AM No 7814 P. 43
CLAIM FOR RELIEF
2.. Plaintiff seeks monetary relief over $200,000.00 but not more than
$3,000,000 . 00.
PARTIES
3.. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place,
San Antonio, TX 78250.
4.. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD
MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company
conducting business in the State of Texas, and has been served and is represented by
counsel, and is properly before this court
5. Defendant ALL JONES, LLC is an active Texas Limited Liability
Company conducting business in the State of Texas, and and has been served and is
represented by counsel, and is properly before this court
6. Defendant Allen J Jones, is an individual who has been served and is
represented by counsel, and is properly before this court.
7.. Defendant Peter Donbavand, is an individual has been served and is
represented by counsel, and is properly before this court.
JURISDICTION
8.. The Court has subject-matter jurisdiction over the lawsuit beeause the
amount in controversy exceeds this Court's minimum jurisdictional requirements .
2
Received Time Feb 3 9:44AM
Feb 3 2015 10:01AM No. 7814 P. 44
VENUE
9.. Venue is proper in Bexar County as all or a substantial part of the events or
omissions giving rise to the claim occurred in Bexar County .
FACTS
10.. Plaintiff Faire was an employee of Defendants, as well as a personal
assistant to Defendant Jones.. Plaintiff, in addition to working for Defendants'
businesses, also took care of Defendant Jones' personal matters, including living in
the Dominican Republic for approximately five months on a 2417 basis assisting in his
defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been
properly compensated for her services .
11.. Defendant Jones, in recognition for her loyal and tireless services
assumed the role of her benefactor . In his role as a benefactor Defendant Jones
promised Plaintiff that he would buy a home and transfer ownership to Plaintiff, so she
would never have worries about a residence.. Defendant Jones developed a scheme
for his purchase of the house that included telling other corporate officers that
Plaintiff's pay increase was for the house payments Defendant Jones intended to hide
his gift from the other Defendants named in this lawsuit Defendants have a real
estate department as part of their businesses, and therefore, Plaintiff was further
inclined to believe his promise to purchase and transfer ownership .
12.. Although Defendant Jones intended to disguise the gift of the residence
from his business partners, nevertheless he authorized for the necessary real estate
Received Time Feb 3 9:44AM
Feb 3 2015 10:01AM No. 7814 P. 45
transactions to be initiated that would result in a purchase transaction and an
immediate transfer of ownership.. Plaintiff relied on Defendant Jones' promise and she
moved into the residence at 8647 Timber Place, San Antonio, Texas 78250 .
13.. Plaintiff incurred moving expenses as well as expenses in making
repairs to the residence to make it habitable . The residence is still in need of
significant repairs. An inspection was ordered by the defendants as further proof of
Defendant Jones' purchase with intention to make a gift Further, in reliance that the
home would be given to her, Plaintiff agreed to sign a one-month lease.
14. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent
promotion based on meritorious work .... Defendant Jones has now conspired with the
other defendants including Defendant Peter Donbavand to evict Plaintiff from the
house she was promised. The wrongful eviction proceedings were abated, as the
justice of the peace court lacks jurisdiction to rule on the petition for eviction
15.. Defendants continue to harass the Plaintiff by wrongfully repossessing
her car. Plaintiff had clear title to her 2005 Mini cooper. Jones promised her an
ambiguous payment plan, and in retaliation for claiming her rightful title to her house,
he has depriVed Plaintiff of a necessity of transportation to seek employment During
the repossession process, he terrorized her by sending strangers to ring her doorbell,
all while he owns a million dollars worth of automobiles, and spends a great deal of
his time in the Dominican Republic.
4
Rec ei ved Time Feb 3 9: 44AM
Feb 3 2015 10:02AM No 7814 P. 46
16.. Plaintiff had an exemplary employment record with Defendants FMP and
ALL JONES, LLC, and had immediately before the firing, been given a raise in pay
and additional duties.. Plaintiff was fired solely because Plaintiff refused to continue
perform employment duties that were not in furtherance of the corporate business but
to serve as a shield for Defendant Jones numerous illegal activities some including
sexual harassment. Defendant Peter Donbavand, a business partner of Defendant
Jones was aware of the employment violations occurring at the corporations and by
non-action, condoned the wrongful conduct of Defendant Jones .
17.. Plaintiff seeks actual damages as a result of the wrongful termination,
which include, but are not limited to back pay from the date of retaliation until the date
of trial.. Plaintiff also seeks future pay in lost earnings and benefits including the
repossession of her automobile lost as a result of her wrongful termination .
18.. Plaintiff also seeks damages for past and future mental anguish as a
result of Defendant Jones forcing her to choose between the illegal activities he was
demanding of her and her livelihood .
19.. Defendant Jones acted with malice toward Plaintiff in that ,Jones
exhibited conscious indifference to consequences Plaintiff might suffer separate and
apart from the damages suffered as a result of the wrongful termination.. Defendant
Jones and Defendant Donbavand have inflicted additional injuries by circulating
malicious rumors about the Plaintiff, harassing the Plaintiff and other activities which
affect her future employment. Plaintiff therefore seeks exemplary damages.
Rec ei ved Time Feb. 3 9: 44AM
Feb 3 2015 10:02AM No 7814 P. 47
COUNT 1-PROMISSORY ESTOPPEL as a CLAIM
20.. On or about March 27, 2013, when Plaintiff Faire was temporarily living
in the Dominican Republic at the request of Defendant ,Jones, taking care of Jones'
child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home
and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas.
21. It was reasonable for Plaintiff to rely on Defendant Jones' promise to
purchase a home and gift it to her based on Defendant Jones' financial resources,
including his ownership of one million dollars worth of cars, and extensive property
real estate holdings in the United States, and in the Dominican Republic.
22.. Defendant Jones promised the Plaintiff that he would execute a written
agreement at closing, giving her full title and interest to the home . Defendant Jones
further promised the closing would take place immediately upon the reaching of an
agreement on the final price and other terms. A final purchase price was reached
between Defendant Jones and his business partner Jason Kemp . All terms for the
sale of the house were reached by buyer and seller.
23. Defendant Jones negotiated all the terms of the real estate purchase
Defendant Jones had reached an agreement with his business partner, Jason Kemp
to purchase the house located at 8647 Timber Place San Antonio, Texas 78250 from
Kemp's wife, Tara Kemp . The real estate actions necessary for a closing were
initiated . Defendant Donbavand ordered an inspection of the home in furtherance of a
prompt closing .
6
Rec ei ved Time Feb 3 9: 44AM
Feb 3 2015 10:03AM No. 7814 P. 48
24.. Although there were no uncertainties regarding the purchase of the
home by Defendant Jones for the Plaintiff, there was a delay in the closing. Plaintiff
was asked to sign a one month lease pending the real estate closing. In signing the
one-month lease, Defendant Jones promised he would sign the necessary documents
to give Plaintiff full and complete ownership of the home in consideration for her loyal
efforts in assisting Defendant Jones in the defense of his suit for divorce .
25. It now appears th.at Defendant Jones, acting in concert with Defendant
Donbavand, who appeared in Justice of Peace court attempting to practice law without
a license, regarding this promise, made the following:
a. a false representation or concealment of material facts concerning the
real estate transaction;
b.. made representation with knowledge, actual or constructive, of those
facts;
c. with the intention that it should be acted on;
d.. to a party without knowledge or the means of knowledge of those facts
e.. who detrimentally relied upon the misrepresentation
26.. Plaintiff contends the promise to complete the transaction (closing of the
real estate} conveying title to Plaintiff is binding against Defendant Jones in order to
avoid injustice. Plaintiff further contends equitable estoppel alleged above is sufficient
to preclude the statute of fraud defense to this promise of a home to Plaintiff.
COUNT 2 QUID PRO QUO SEXUAL HARASSMENT.
27 Plaintiff was an employee of Defendants FMP, ALL JONES and their
subsidiaries, and her duties were to serve as a personal assistant to the Defendant
Received Time Feb 3 9:44AM
Feb 3 2015 10:03AM No 7814 P. 49
Allen J . Jones, the President and CEO of Defendant FMP . Plaintiff was a self-
supporting divorced woman with no financial resources other than her wages. Plaintiff
also had an exemplary work history prior to working for Defendants .
28.. On or about January 21, 2013 Defendant Jones made sexual advances
toward Plaintiff, a very attractive woman . Defendant Jones then demanded physical
conduct of a sexual nature. Defendant Jones's demands escalated and the mental
abuse was so extreme that it prevented Plaintiff from defending herself.
29.. Defendant Jones made it cleared to the Plaintiff ttiat continued
employment as well as other job benefits were conditioned on her acceptance of the
continued sexual demands of Defendant Jones .
30. At the time of the harassment, Defendant Jones was the President and
CEO of the Food Management Partners, a Texas LLC . At all times, Defendant
Jones held himself out to Plaintiff and to the public, as a very powerful business man,
and owner of 150 businesses . Defendant Jones instilled fear of his power on
Plaintiff.. There was no recourse available to the Plaintiff to complain..
31.. Plaintiff was harmed by the physical sexual conduct perpetrated against
her by Defendant Jones.. Plaintiff's harm was directly and proximately cause by
Defendant Jones sexual harassment.. When Plaintiff was well enough to, she refused
to further submit to Defendant Jones' inappropriate requests she was fired on or
about August 31, 2014 .
l
a
Rec ei v ed Time Feb 3 9: 44AM
Feb 3 2015 10:03AM No 7814 P. 50
32.. Plaintiff seeks compensatory damages for lost wages, lost benefits and
future employment opportunities based on her traumatic experience at the hand of
Defendant Jones .
33. Plaintiff seeks exemplary damages based on Defendant Jones's history of
sexual harassment of others and including the purchase of a female for his own
inappropriate sexual requests.
34. Further, Plaintiff seeks exemplary damages against all Defendants, as
her injury resulted from Defendants' malice, which entitles Plaintiff to exemplary
damages under Tex Civ . P. & Remedies Code section 41..003(a).
COUNT 3 - Conspiracy
35.. Defendant Peter Donbavand and Jason Kemp, CFO of FMP assisted
Defendant Jones in conduct which they knew amounted to a commission of a tort or
wrongful acts against the Plaintiff.
36. Defendant Donbavand and Kemp acted with intent to assist Defendant
Jones in his wrongful acts toward Plaintiff including the discriminatory practices
perpetrated against Plaintiff more fully described in Petitioner's Second Amended
Original Petition .
37.. Defendant Donbavand and Kemp's assistance to Defendant Jones and
their own related conduct was a substantial factor in causing the discriminatory
practices and in the breach of the promise Defendant Jones made to Plaintiff.
Received Time Feb. 3 9:44AM
Feb 3 2015 10:04AM No 7814 P. 51
JURY DEMAND
38. Plaintiff has demanded a jury trial and tendered the appropriate fee with her
original petition .
CONDITIONS PRECEDENT
39.. All conditions precedent to plaintiff's claim for relief have been performed or
have occurred .
OBJECTION TO ASSOCIATE JUDGE
40.. Plaintiff objects to the referral of this case to an associate judge for hearing a
trial on the merits or presiding at a jury trial..
I
PRAYER
For these reasons, plaintiff asks that defendant be cited to appear and answer
I
and, on final trial, that plaintiff be awarded a judgment against defendant for the
following:
lI
I
a.
b..
Exemplary damages
Economic and non-economic damages including, but not limited to back
l
I
.1
pay, front pay, severance pay, specific performance regarding the gift
purchase of a home (or its monetary equivalent) . I
c.. Prejudgment and postjudgment interest
l
!,
J
d.. Court costs.
e. Reasonable and necessary Attorney's fees
f.. All other relief to which plaintiff is entitled .
10
Received Time Feb 3 9:44AM
Feb 3 2015 10:04AM No 7814 P. 52
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Sotedad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Arayle2@sbcglobal.net
By: Isl Olga Brown
OLGA BROWN
State Bar No 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 28th day of January 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff's Second Amended Original Petition was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
Isl Olga Btown
OLGA BROWN I
i
l
l
:1
l
!
ii
I
J
I
"
l"
Rec eiv ed Time Feb 3 9: 44AM
Feb 3 2015 10:04AM No 7814 P. 53
EXHIBIT 5
.
Received Time Feb 3 9:44AM
Feb. 3 2015 10:04AM No 7814 P. 54
CAUSE NO. 2014-Cl-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
v. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION
Plaintiff, Cearth Faire, files this rhird Amended Original Petition against
defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners,
LLC, ALL JONES, LLC, Allen ,J ,Jones, and Peter Donbavand, and alleges as follows:
DISCOVERY-CONTROL PLAN
1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil
Procedure 1904 and affirmatively pleads that this suit is not governed by the
expedited-actions process in Texas Rule of Civil Procedure 169 because she may
seek injunctive relief.. Plaintiff has a pending Motion for a Level Three Docket Control
Order, and the parties entered into a Rule 11 Agreement showing intent to enter into
an Agreed Docket Control Order and setting this matter for Jury Trial November 2,
2015 . See Exhibit A.
r
Received Time Feb 3 9:44AM
Feb 3 2015 10:05AM No 7814 P. 55
CLAIM FOR RELIEF
2. Plaintiff seeks monetary relief over $200,000 . 00 but not more than
$3,000,000 . 00 .
PARTIES
3.. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place,
San Antonio, TX 78250 .
4.. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD
MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company
conducting business in the State of Texas, and has been served and is represented by
counsel, and is properly before this court
5. Defendant ALL JONES, LLC is an active Texas Limited Liability
Company conducting business in the State of Texas, and and has been served and is
represented by counsel, and is properly before this court
6.. Defendant Allen J Jones, is an individual who has been served and is
represented by counsel, and is properly before this court
7. Defendant Peter Donbavand, is an individual has been served and is
represented by counsel, and is properly before this court
JURISDICTION
8. The Court has subject-matter jurisdiction over the lawsuit because the
amount in controversy exceeds this Court's minimum jurisdictional requirements .
l
2
Rec ei ved Time Feb 3 9: 44AM
Feb 3 2015 10:05AM No 7814 P. 56
VENUE
9 Venue is proper in Bexar County as all or a substantial part of the events or
omissions giving rise to the claim occurred in Bexar County.
FACTS
10. Plaintiff Faire was an employee of Defendants, as well as a personal
assistant to Defendant Jones. Plaintiff, in addition to working for Defendants'
businesses, also took care of Defendant Jones' personal matters, including living in
the Dominican Republic for approximately five months on a 24!7 basis assisting in his
defense in a family law matter pending in Bexar County, Texas . Plaintiff has not been
properly compensated for her services.
11.. Defendant Jones, in recognition for her loyal and tireless services
assumed the role of her benefactor. In his role as a benefactor Defendant Jones
promised Plaintiff that he would buy a home and transfer ownership to Plaintiff, so she
would never have worries about a residence.. Defendant Jones developed a scheme
for his purchase of the house that included telling other corporate officers that
Plaintiff's pay increase was for the house payments. Defendant Jones intended to hide
his gift from the other Defendants named in this lawsuit Defendants have a real
estate department as part of their businesses, and therefore, Plaintiff was further
· inclined to believe his promise to purchase and transfer ownership .
r
12 Although Defendant Jones intended to disguise the gift of the residence
from his business partners, nevertheless he authorized for the necessary real estate
Received Time Feb 3 9:44AM
Feb 3 2015 10:05AM No 7814 P. 57
transactions to be initiated that would result in a purchase transaction and an
immediate transfer of ownership. Plaintiff relied on Defendant Jones' promise and she
moved into the residence at 864l Timber Place, San Antonio, Texas 78250 .
13. Plaintiff incurred moving expenses as well as expenses in making
repairs to the residence to make it habitable. The residence is still in need of
significant repairs An inspection was ordered by the defendants as further proof of
Defendant Jones' purchase with intention to make a gift Further, in reliance that the
home would be given to her, Plaintiff agreed to sign a one-month lease .
14. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent
promotion based on meritorious work .... Defendant Jones has now conspired with the
other defendants including Defendant Peter Donbavand to evict Plaintiff from the
house she was promised. The wrongful eviction proceedings were abated, as the
justice of the peace court lacks jurisdiction to rule on the petition for eviction.
15.. Defendants continue to harass the Plaintiff by wrongfully repossessing
her car. Plaintiffhad clear title to her 2005 Mini cooper.. Jones promised her an
ambiguous payment plan, and in retaliation for claiming her rightful title to her house,
he has deprived Plaintiff of a necessity of transportation to seek employment During
the repossession process, he terrorized her by sending strangers to ring her doorbell,
all while he owns a million dollars worth of automobiles, and spends a great deal of
his time in the Dominican Republic .
4
Received Time Feb. 3 9:44AM
Feb 3. 2015 10:06AM No 7814 P. 58
16.. Plaintiff had an exemplary employment record with Defendants FMP and
ALL JONES, LLC, and had immediately before the firing, been given a raise in pay
and additional duties. Plaintiff was fired solely because Plaintiff refused to continue
perform employment duties that were not in furtherance of the corporate business but
to serve as a shield for Defendant Jones numerous illegal activities some including
sexual harassment Defendant Peter Donbavand, a business partner of Defendant
Jones was aware of the employment violations occurring at the corporations and by
non-action, condoned the wrongful conduct of Defendant Jones.
17.. Plaintiff seeks actual damages as a result of the wrongful termination,
which include, but are not limited to back pay from the date of retaliation until the date
of trial . Plaintiff also seeks future pay in lost earnings and benefits including the
repossession of her automobile lost as a result of her wrongful termination.
18.. Plaintiff also seeks damages for past and future mental anguish as a
result of Defendant ,Jones forcing her to choose between the illegal activities he was
demanding of her and her livelihood .
19.. Defendant Jones acted with malice toward Plaintiff in that Jones
exhibited conscious indifference to consequences Plaintiff might suffer separate and
apart from the damages suffered as a result of the wrongful termination. Defendant
Jones and Defendant Donbavand have inflicted additional injuries by circulating
malicious rumors about the Plaintiff, harassing the Plaintiff and other activities which
affect her future employment Plaintiff therefore seeks exemplary damages .
Received Time Feb 3 9:44AM
Feb 3 2015 10:06AM No 7814 P. 59
COUNT 1-PROMISSORY ESTOPPEL as a CLAIM
20. On or about March 27, 2013, when Plaintiff Faire was temporarily living
in the Dominican Republic at the request of Defendant Jones, taking care of Jones'
child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home
and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas .
21.. It was reasonable for Plaintiff to rely on Defendant Jones' promise to
purchase a home and gift it to her based on Defendant Jones' financial resources,
including his ownership of one million dollars worth of cars, and extensive property
real estate holdings in the United States, and in the Dominican Republic .
22.. Defendant Jones promised the Plaintiff that he would execute a written
agreement at closing, giving her full title and interest to the home . Defendant Jones
further promised the closing would take place immediately upon the reaching of an
agreement on the final price and other terms. A final purchase price was reached
between Defendant Jones and his business partner Jason Kemp All terms for the
sale of the house were reached by buyer and seller
23.. Defendant Jones negotiated all the terms of the real estate purchase .
Defendant Jones had reached an agreement with his business partner, Jason Kemp
to purchase the house located at 8647 Timber Place San Antonio, Texas 78250 from
Kemp's wife, Tara Kemp . The real estate actions necessary for a closing were
initiated . Defendant Donbavand ordered an inspection of the home in furtherance of a
prompt closing .
r
6
Received Time Feb 3 9:44AM
Feb 3 2015 10:07AM No 7814 P. 60
24.. Although there were no uncertainties regarding the purchase of the
home by Defendant Jones for the Plaintiff, there was a delay in the closing. Plaintiff
was asked to sigri a one month lease pending the real estate closing. In signing the
one-month lease, Defendant Jones promised he would sign the necessary documents
to give Plaintiff full and complete ownership of the home in consideration for her loyal
efforts in assisting Defendant Jones in the defense of his suit for divorce
25.. It now appears that Defendant Jones, acting iii concert with Defendant
Donbavand, who appeared in Justice of Peace court attempting to practice law without
a license, regarding this promise, made the following:
a.. a false representation or concealment of material facts concerning the
real estate transaction;
b. made representation with knowledge, actual or constructive, of those
facts;
c. with the intention that it should be acted on;
d.. to a party without knowledge or the means of knowledge of those facts
e. who detrimentally relied upon the misrepresentation
26 Plaintiff contends the promise to complete the transaction (closing of the
real estate) conveying title to Plaintiff is binding against Defendant Jones in order to
avoid injustice Plaintiff further contends equitable estoppel alleged above is sufficient
to preclude the statute of fraud defense to this promise of a home to Plaintiff.
COUNT 2 QUID PRO QUO SEXUAL HARASSMENT
27 Plaintiff was an employee of Defendants FMP, ALL JONES and their
subsidiaries, and her duties were to serve as a personal assistant to the Defendant
Rec ei ved Time Feb. 3 9: 44AM
Feb. 3 2015 10:07AM No 7814 P. 61
Allen J.. Jones, the President and CEO of Defendant FMP. Plaintiff was a self-
supporting divorced woman with no financial resources other than her wages . Plaintiff
also had an exemplary work history prior to working for Defendants .
28.. On or about January 21, 2013 Defendant Jones made sexual advances
toward Plaintiff, a very attractive woman Defendant Jones then demanded physical
conduct of a sexual nature Defendant Jones's demands escalated and the mental
abuse was so extreme that it prevented Plaintiff from defending herself..
29.. Defendant ,Jones made it cleared to the Plaintiff that continued
employment as well as other job benefits were conditioned on her acceptance of the
continued sexual demands of Defendant Jones .
30.. At the time of the harassment, Defendant Jones was the President and
CEO of the Food Management Partners, a Texas LLC . At all times, Defendant
Jones held himself out to Plaintiff and to the public, as a very powerful business man,
and owner of 150 businesses . Defendant ,Jones instilled fear of his power on
Plaintiff. There was no recourse available to the Plaintiff to complain:
31.. Plaintiff was harmed by the physical sexual conduct perpetrated against
her by Defendant Jones.. PlaintITfs harm was directly and proximately cause by
Defendant Jones sexual harassment When Plaintiff was well enough to, she refused
to further submit to Defendant Jones' inappropriate requests she was fired on or
about August 31, 2014 .
8
Received Time Feb. 3 9:44AM
Feb 3 2015 10:07AM No 7814 P. 62
32.. Plaintiff seeks compensatory damages for lost wages, lost benefits and
future employment opportunities based on her traumatic experience at the hand of
Defendant ,Jones .
33 . Plaintiff seeks exemplary damages based on Defendant Jones's history of
sexual harassment of others and including the purchase of a female for his own
inappropriate sexual requests .
34.. Further, Plaintiff seeks exemplary damages against all Defendants, as
her injury resulted from Defendants' malice, which entitles Plaintiff to exemplary
damages under Tex . Civ. P & Remedies Code section 41.003(a) .
COUNT 3 "" Conspiracy
35.. Defendant Peter Donbavand and Jason Kemp, CFO of FMP assisted
Defendant Jones in conduct which they knew amounted to a commission of a tort or
wrongful acts against the Plaintiff
36. Defendant Donbavand and Kemp acted with intent to assist Defendant
Jones in his wrongful acts toward Plaintiff including the discriminatory practices
perpetrated against Plaintiff more fully described in Petitioner's Third Amended
Original Petition .
37.. Defendant Donbavand and Kemp's assistance to Defendant Jones and
their own related conduct was a substantial factor in causing the discriminatory
practices and in the breach of the promise Defendant Jones made to' Plaintiff..
Received Time Feb. 3 9:44AM
Feb 3 2015 10:08AM No 7814 P. 63
COUNT 4 - Fraud
38 . Additionally, Plaintiff Faire pleads fraud on the part of Defendant
Jones and aided and abetted by the other Defendants. Petitioner alleges that
Defendants are barred from using the statute of frauds to avoid the promise of gifting
real estate, namely the residence at 8647 Timber Place, San Antonio, TX 78250 to
Plaintiff.
39.. Plaintiff claims the gift of real estate must be enforced in equity as the
denial of the enforcement would amount to a virtual fraud . See Exxon Co1p
Breezevale, Ltd, 82 S W3d 429, 439 (Tex. App-Dallas 2002, pet. denied)..
40.. Plaintiff alleges the facts of her claim removes the suit from the operation
of the statute of frauds in that it meets the elements required as set forth;
(1) payment of consideration,
(2) possession by the promisee and
(3) the making by the promisee of valuable improvements;
41.. Plaintiff shows it is undisputed that she worked Defendant Jones with
the knowledge of all Defendants for nearly five months in the Dominican Republic on a
2417 basis as consideration, and she has refrained from a claim of wage and hour
violations, in reliance of the promise; Plaintiff has properly taken possession of the
home pursuant to a document prepared by the Defendants and Plaintiff has made
valuable improvements on the faith of the Agreement/promise .
L
10
Received Time Feb 3. 9:44AM
Feb 3 2015 10:08AM No 7814 P. 64
42.. Defendant Peter Donbavand has employed one Robert Ray, attorney at
law to initiate eviction proceedings against Plaintiff on two occasions with the full
knowledge of Defendant Jones' promise to Plaintiff. Therefore, Plaintiff's injuries
resulted from Defendants' actual fraud or malice, which entitles Plaintiff to exemplary
damages under Texas Civil Practice & Remedies Code section 41..003(a).
JURY DEMAND
43.. Plaintiff has demanded a jury trial and tendered the appropriate fee with her
original petition .
CONDITIONS PRECEDENT
44.. All conditions precedent to plaintiffs claim for relief have been performed or
have occurred .
OBJECTION TO ASSOCIATE JUDGE
45. Plaintiff objects to the referral of this case to an associate judge for hearing a
trial on the merits or presiding at a jury trial .
PRAYER
For these reasons, plaintiff asks that defendant be cited to appear and answer
and, on final trial, that plaintiff be awarded a judgment against defendant for the
following:
a. Exemplary damages
b.. Economic and non-economic damages including, but not limited to back
pay, front pay, severance pay, specific performance regarding the gift
purchase of a home (or its monetary equivalent).
Receiveef Time Feb. 3 9:44AM
Feb 3 2015 10:08AM No 7814 P. 65
c.. Prejudgment and postjudgment interest.
d.. Court costs.
e.. Reasonable and necessary Attorney's fees
f.. All other relief to which plaintiff is entitled.
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argvlef@sbcglobal,net
By: Isl Olga Brown
OLGA BROWN
State Bar No . 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the. 30th day of January 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff's Third Amended Original Petition was furnished to:
Christine E Reinhard
SCHMOYE.R REINHARD L.l.P
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
Isl Olga Brown
OLGA BROWN
12
Received Time Feb 3 9:44AM
Tab 4
FILED
3/10/2015 3:52:26 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Maria Abilez
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES,
INDIVIDUALLY, AND
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S FOURTH AMENDED ORIGINAL PETITION
Plaintiff, Cearth Faire, files this Fourth Amended Original Petition against
defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners,
LLC, ALL JONES, LLC, Allen J Jones, Peter Donbavand and Jason Kemp, and
alleges as follows:
DISCOVERY-CONTROL PLAN
1. A Level Three Agreed Docket Control Order is in place, this matter is set for
Jury Trial November 2, 2015.
CLAIM FOR RELIEF
2. Plaintiff seeks monetary relief over $200,000.00 but not more than
$3,000,000.00.
PARTIES
3. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place,
San Antonio, TX 78250.
4. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD
MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company
conducting business in the State of Texas, and has been served and is represented by
counsel, and is properly before this court.
5. Defendant ALL JONES, LLC is an active Texas Limited Liability
Company conducting business in the State of Texas, and has been served and is
represented by counsel, and is properly before this court
6. Defendant Allen J Jones, is an individual who has been served and is
represented by counsel, and is properly before this court.
7. Defendant Peter Donbavand, is an individual has been served and is
represented by counsel, and is properly before this court.
8. Defendant Jason Kemp is an individual whose business address is
Food Management Partners, LLC 120 Chula Vista, San Antonio, TX 78232. He may
be served at this address, or wherever he may be found.
JURISDICTION
9. The Court has subject-matter jurisdiction over the lawsuit because the
amount in controversy exceeds this Court’s minimum jurisdictional requirements.
2
VENUE
10. Venue is proper in Bexar County as all or a substantial part of the events or
omissions giving rise to the claim occurred in Bexar County.
FACTS
11. Plaintiff Faire was an employee of Defendants, as well as a personal
assistant to Defendant Jones. Plaintiff, in addition to working for Defendants’
businesses, also took care of Defendant Jones’ personal matters, including living in
the Dominican Republic for approximately five months on a 24/7 basis assisting in his
defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been
properly compensated.
12. Defendant Jones, individually, in recognition for her loyal and tireless
services personal to him, promised Plaintiff a home. Defendant Jones developed a
scheme for his purchase of the house that included telling other corporate officers that
Plaintiff’s pay increase was for the house payments. Defendant Jones intended to hide
his gift from the other Defendants named in this lawsuit, until he retaliated against
Plaintiff by denying he had made a gift of real estate to Plaintiff.
13. Defendant Jones, in his individual capacity, negotiated with Defendant
Jason Kemp, whose wife owned the residence at 8647 Timber Pl, San Antonio, TX
78250. Defendant Jones then instructed, Defendant Donbavand, in his individual
capacity and outside the scope of corporate business to prepare the necessary
documents so he, Jones could purchase the residence for the Plaintiff.
14. Defendant Donbavand, while a business partner of Defendant Jones and
also an agent of Defendant FMP, routinely served Defendant Jones as a personal
aide and routinely took orders from Jones outside the course and scope of his duties
with the corporate entities to meet the personal demands of Defendant Jones,
notwithstanding if the corporate best interests were served.
15. Defendant Kemp, also a business partner of Defendant Jones, took orders and
assumed duties outside the course and scope of the corporate entities upon demand
from Defendant Jones the President & CEO of Defendant FMP. Defendant Jones
treats the corporate entities as his “piggy bank” and Defendants Donbavand and
Kemp, as his personal aides.
16. Defendant Kemp routinely succumbs to the personal demands of
Defendant Jones outside the best interests of the corporate business as in this case to
sell him the residence at 8647 Timber Pl, San Antonio, TX 78250, so he could gift the
property to the Plaintiff in consideration for her assisting in his personal legal matters.
17. While Defendant Donbavand was completing the necessary
documents, again outside the course and scope of corporate business, Defendant
Jones requested that Plaintiff move into the house, orally gifting her the house, a
present gift. Plaintiff in reliance of his oral promised moved into the house with the
consent of Defendant Kemp and the request of Defendant Jones and made valuable
and permanent improvements in reliance of Defendant Jones promise to her.
4
18. Plaintiff incurred moving expenses as well as expenses in making
permanent improvements to the residence to make it habitable. The residence is still
in need of significant repairs. An inspection was ordered by the defendants as further
proof of Defendant Jones’ purchase with intention to make a gift.
19. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent
promotion based on meritorious work.. Defendant Jones demanded the other
defendants Defendant Peter Donbavand and Defendant Jason Kemp evict Plaintiff
from the house he had given her. The wrongful eviction proceedings were abated,
as the justice of the peace court lacks jurisdiction to rule on the petition for eviction in
that title to the property is at issue. The wrongful eviction proceedings are outside the
course and scope of corporate business.
20. Defendants continued to harass the Plaintiff by wrongfully repossessing
her car. Plaintiff had clear title to her 2005 Mini Cooper. Jones promised to repair
her car. An ambiguous payment plan was put in place. However, in retaliation for
claiming her rightful title to her house, Jones has deprived Plaintiff of a necessity, of
transportation to seek employment. During the repossession process, Jones
terrorized her by sending strangers to ring her doorbell, all while he owns a million
dollars worth of automobiles, and spends a great deal of his time in the Dominican
Republic.
21. Plaintiff had an exemplary employment record before being hired by
Defendants FMP and ALL JONES, LLC. Immediately before being fired by
Defendants, Faire had been given a raise in pay and been entrusted with additional
duties. Plaintiff was fired solely because Plaintiff refused to continue to perform
employment duties that were not in furtherance of the corporate business and
because of Defendant Jones’ demands for demeaning sexual acts and explicit threats
to fire her if she didn’t submit.
22. Plaintiff seeks actual damages as a result of the sexual harassment and
discrimination, which include, but are not limited to back pay from the date of quid pro
quo retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and
benefits including the repossession of her automobile lost as a result of her unlawful
termination.
23. Plaintiff also seeks damages for past and future mental anguish as a
result of Defendant Jones explicitly forcing her to choose between the sexual abuse
he was demanding of her and her livelihood.
24. Defendant Jones acted with malice toward Plaintiff in that Jones
exhibited conscious indifference to consequences Plaintiff might suffer separate and
apart from the damages suffered as a result of the retaliation. Defendant Jones, as
President and CEO, has inflicted additional injuries by circulating malicious rumors
about the Plaintiff at corporate headquarters. Plaintiff therefore seeks exemplary
damages.
6
COUNT 1- ORAL GIFT OF REAL ESTATE
25. On or about March 27, 2013, when Plaintiff Faire was temporarily living
in the Dominican Republic at the request of Defendant Jones, taking care of Jones’
child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home
and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas.
26. On or about July 20 2014, Plaintiff moved into the house at 8647 Timber
Pl, San Antonio, Texas 78250, that Defendant Jones gifted her in his individual
capacity but with the knowledge and consent of all Defendants. Plaintiff is still
living at her home, taking possession under the present gift.
27. Plaintiff has made permanent and valuable improvement to the home
based on the reliance of the gift made to her by Defendant Jones as an individual.
28. It was reasonable for Plaintiff to rely on Defendant Jones’ promise of an
oral gift of real estate based on Defendant Jones’ financial resources, including but
not limited to ownership in franchises of Zio’s Italian Kitchen, Buffalo Wild Wings,
Don Pablo’s Big Tex Bold Mex, Furr’s, Little Ceasar’s and Smashburger.
29. Further, Defendant Jones boasts of having presently one million dollars
worth of cars and extensive real estate holdings in the state. In other judicial
proceedings, Defendant Jones bragged about owning 150 businesses and having
financial resources to “buy” a young lady from a brothel for $10,000.00 in the
Dominican Republic where he also has extensive real estate holdings.
30. Defendant Jones informed the Plaintiff that he was buying the house from
Defendant Kemp, and that at closing, he would give her full title and interest to the
home. Defendants Jones further promised the closing would take place immediately
upon the reaching of an agreement on the final price and other terms. A final
purchase price was reached between Defendant Jones and Defendant Jason Kemp.
All terms for the sale of the house were reached by buyer and seller, and having
absolutely nothing to do with the business of the corporate entities, parties herein
31. Defendant Jones negotiated all the terms of the real estate purchase to
make a present gift of real estate to Plaintiff. Defendant Jones, Defendant Kemp,
and Defendant Donbavand knew the house located at 8647 Timber Pl, San Antonio,
TX 78250 purchased from Kemp’s wife, Tara Kemp, was a gift of real estate to the
Plaintiff. Defendant Donbavand ordered an inspection of the home in furtherance of
a prompt closing, all outside of the course and scope of corporate business..
32. Defendant Jones made this gift to Plaintiff as an individual and not as
President & CEO of the other corporate defendants. Defendant Jones purchased
the home from Defendant Kemp as an individual and not as a transaction within the
course and scope of corporate business.
33. Defendant Jones ordered Defendant Donbavand to complete the
necessary documentation and transactions outside the course and scope of
8
corporate business. Defendant Donbavand routinely acts as Defendant Jones’
personal aide to carry out his orders regarding personal matters. Defendant
Donbavand is experienced in real estate transactions and worked to completing the
necessary documents. In the meantime, in a fit of retaliation, Defendant Jones
changed his mind about the gift. Plaintiff has been living in the house for eight
months.
34. Plaintiff asserts this oral gift of real estate must be enforced in equity as
the facts herein establish a gift of real estate, notwithstanding the requirements of
the statute of frauds.
COUNT 2 – Conspiracy
35. Defendants Peter Donbavand and Jason Kemp, as individuals acting
outside their corporate duties, assisted Defendant Jones in conduct which they knew
amounted to a commission of a tort or wrongful acts against the Plaintiff, and
specifically acting to rescind the oral gift of real estate to Plaintiff
36. Defendant Donbavand and Defendant Kemp acted with intent to assist
Defendant Jones in his wrongful acts toward Plaintiff of attempting to rescind the
present gift of real estate.
37. Defendant Donbavand and Defendant Kemp’s assistance to Defendant
Jones and their own related conduct was a substantial factor in the breach of the
present gift Defendant Jones made to Plaintiff.
COUNT 3 QUID PRO QUO SEXUAL HARASSMENT
38. Plaintiff was an employee of Defendants FMP, ALL JONES and their
subsidiaries, and her duties were to serve as a personal assistant to the Defendant
Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self-
supporting divorced woman with no financial resources other than her wages. Plaintiff
also had an exemplary work history prior to working for Defendants.
39. Plaintiff raises this claim under Tex. Lab. Code Ann. §§ 21.001, .051
(West 1996), which prohibits discrimination on the basis of sex.
40. On or about January 21, 2013 Defendant Jones made sexual advances
toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical
conduct of a sexual nature. Defendant Jones’s demands escalated and the mental
abuse was so extreme that it prevented Plaintiff from defending herself.
41. Defendant Jones made it cleared to the Plaintiff that continued
employment as well as other job benefits were conditioned on her acceptance of the
continued sexual demands of Defendant Jones.
42. At the time of the harassment, Defendant Jones was the President and
CEO of the Food Management Partners, a Texas LLC. At all times, Defendant
Jones held himself out to Plaintiff and to the public, as a very powerful business man,
and owner of 150 businesses. Defendant Jones instilled fear of his financial power
on Plaintiff. There was no recourse available to the Plaintiff to complain.
10
43. Plaintiff was harmed by the physical sexual conduct perpetrated against
her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by
Defendant Jones sexual harassment. When Plaintiff was mentally well enough to,
she refused to further submit to Defendant Jones’ inappropriate requests she was
fired on or about August 31, 2014.
44. Plaintiff seeks compensatory damages for lost wages, lost benefits and
future employment opportunities based on her traumatic experience at the hand of
Defendant Jones.
45. Plaintiff seeks exemplary damages based on Defendant Jones’s history
of sexual harassment of others and including the purchase of a female as if she was
merely chattel.
46. Further, Plaintiff seeks exemplary damages against Defendant
Donbavand and Defendant Kemp, as her injury resulted from Defendants’ malice,
which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code
section 41.003(a).
JURY DEMAND
47. Plaintiff has demanded a jury trial and tendered the appropriate fee with her
original petition. The jury trail has been set for November 2, 2015.
CONDITIONS PRECEDENT
48. All conditions precedent to plaintiff’s claim for relief have been performed or
have occurred.
OBJECTION TO ASSOCIATE JUDGE
49. Plaintiff objects to the referral of this case to an associate judge for
hearing a trial on the merits or presiding at a jury trial.
PRAYER
For these reasons, Plaintiff asks that Defendants be cited to appear and
answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for
the following:
a. Exemplary damages
b. Economic and non-economic damages including, but not limited to back
pay, front pay, severance pay, specific performance regarding the gift
purchase of a home (or its monetary equivalent).
c. All the remedies afforded by Tex. Lab. Code Ann. 21.001
c. Prejudgment and postjudgment interest.
d. Court costs.
e. Reasonable and necessary Attorney’s fees
f. All other relief to which Plaintiff is entitled.
12
Respectfully submitted,
LAW OFFICE OF OLGA BROWN
111 Soledad, Suite 1725
San Antonio, Texas 78205
210/226-1550 telephone
210/226-1884 facsimile
Argyle2@sbcglobal.net
By: /s/ Olga Brown_________
OLGA BROWN
State Bar No. 03155500
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 10th day of March 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Fourth Amended Original Petition was furnished to:
Christine E Reinhard
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
/s/ Olga Brown_______
OLGA BROWN
Tab 5
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT
Plaintiff §
§
V. §
§ 150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP, §
LLC, D/B/A FOOD MANAGEMENT §
PARTNERS, LLC, §
ALL JONES, LLC, ALLEN J JONES, §
INDIVIDUALLY, AND §
PETER DONBAVAND, §
INDIVIDUALLY §
§
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S MOTION FOR RECONSIDERATION/NEW TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES PLAINTIFF, CEARTH FAIRE, who herein requests this
Court to reconsider this Court’s granting of Defendants’ Rule 91a Motion to
Dismiss her claims of oral gift of real estate and conspiracy. In support of such
request Petitioner would show this Court as follows:
I. Factual Background of Earlier Motion
At the March 18, 2015 hearing, Movants based their arguments on
complaints of the pleadings more in the light of a no-evidence summary motion
or request for special exception relief. This is not the basis for determining
whether Petitioner’s causes of action have merit at this particular stage of
litigation.
_____________________________________________________________________________________________ 1
PLAINTIFF’s Motion for Reconsideration. /New Trial
Petitioner clearly pled each element for her cause of action for oral gift of
real estate and conspiracy to defraud by succinctly and factually addressing each
element of her claims. Whether or not those facts support her allegations is a
matter for another motion in the future. At this stage, the reasonable inferences
reasonably drawn from them is sufficient to for this court to deny the Rule 91a
Motion. But, more importantly, Movants failed to properly plead their own Motion.
II. Contents of Motion Fails to Identify Cause of Action
Challenged by Movant
The Movants failed to meet the requirements of the Dismissal Rule.
On February 3, 2015, Defendants filed an Amended Motion for Partial Dismissal
of Plaintiff’s claim of promissory estoppel. But prior to the hearing, Plaintiff had
timely filed her Fourth Amended Original Petition, eliminating the cause of action
for promissory estoppel, and included a claim for Oral Promise of Real Estate,
separate and distinct from promissory estoppel as a cause of action.
Movant’s motion did not include a challenge to the new cause of action.
TRCP 91a: Dismissal of Baseless Causes of Action clearly makes strict
requirements of the Movant. This requirement is not one of an onerous nature.
Movants were simply required to meet the requirements of TRCP 91a.2
which mandates that movant identify each cause of action to which the motion is
addressed. Further, movant must state specifically, the reasons the cause of
action has no basis in law and no basis in fact or both.
_____________________________________________________________________________________________ 2
PLAINTIFF’s Motion for Reconsideration. /New Trial
Movants failed to do both. Instead and mistakenly, Movants argued the
cause of action of promissory estoppel, which was no longer a part of the Fourth
Amended Original Petition, the live pleadings.
III. Movants Merely Argued Evidence, Contrary to Rule
Movants were further mistaken at the time of the hearing by arguing
evidence regarding Plaintiff’s claims. It is undisputed that Rule 91a.7 mandates
that the court may not consider evidence in ruling on the Motion. The court must
decide the motion based solely on the pleading of the cause of action. The
pleading of the oral gift of real estate was unchallenged in the amended
dismissal motion, therefore the claim must stand and proceed to a trier of fact.
Movants further failed to plead and prove an award of attorney fees. It is
also a requirement of the Rule. This court has properly stricken the award from
Movant’s order. Likewise, this court should also deny their motion to eliminate
Petitioner’s claim for oral gift of real estate.
IV. Movants Failed to Address Individual Conspirators Acts
Movants again failed to address the cause of action of conspiracy that was
properly plead by Petitioner. In their Amended Motion for Dismissal of
Conspiracy, they address the issue of conspiracy as being barred by Intra-
Corporate Immunity Doctrine. After Petitioner amends her pleadings and alleges
_____________________________________________________________________________________________ 3
PLAINTIFF’s Motion for Reconsideration. /New Trial
that each defendant was acting outside the scope of the corporate responsibility,
Movant failed again to address the issue in his Amended Motion 91a which
requires specificity in the challenges to the cause of action. Movants failed to
specifically state the reason(s) there is no basis in law or no basis in fact or both.
Movants were required by to include in the contents of their motion a
challenge to the individual acts of each defendant. A conclusory statement of
an alleged affirmative defense is not sufficient to meet the requirements of
Rule 91a.2.
Petitioner is prepared to challenge Movants’ slide show of misstatements
of law and of facts and presented to this court. Movants’ email traffic supports
Petitioner’s claims of the individual acts of conspiracy in relation to the Defendant
Jones’ oral promise of real estate to Petitioner.
CONCLUSION
Movants’ counsel’s own words at time of hearing should persuade this
court to reconsider the granting of their Motion to Dismiss. Mr. Justin Barbour’s
own words were as follows:
“……just as we’re bound by plaintiff’s live pleadings, in determining
whether or not the Rule 91a motion should be granted, I believe the plaintiff
should be as well….”
_____________________________________________________________________________________________ 4
PLAINTIFF’s Motion for Reconsideration. /New Trial
The Plaintiff’s live pleadings include the cause of action of oral gift of real
estate. The contents of Movants’ Amended Rule 91a motion do not challenge
that specific cause of action. Further, the Movants’ live pleadings also do not
specifically challenge the conspiracy action.
The Movants had the burden to properly plead their Rule 91a motion by
simply identifying in their motion each cause of action they challenge and state
specifically the reasons the cause of action has no basis in law or in fact or both.
Movants failed to meet this burden.
Movants are in agreement, parties are bound by their pleadings.
Movants’ pleadings do not support a granting of the motion. Defendants’ self-
serving interpretation of Plaintiff’s pleadings do not meet the strict requirement of
the Rule. This court therefore should reconsider its ruling in this matter and deny
Defendants’ Motion to Dismiss.
Plaintiff seeks attorneys fees and costs accordingly, and respectfully
requests the Court grant her attorney fees and costs in defending this matter.
PRAYER
WHEREFORE ALL PREMISES CONSIDERED , Plaintiff Faire prays that
after notice and hearing, this court reconsider its original judgment, deny
Defendants’ Motion to Dismiss, and, in the alternative, grant an Order for New
Trial. Plaintiff prays for attorneys’ fees and costs. Plaintiff prays for all other and
further relief to which she is entitled.
_____________________________________________________________________________________________ 5
PLAINTIFF’s Motion for Reconsideration. /New Trial
Respectfully submitted:
By: _/s/ Olga Brown___________
LAW OFFICES OF OLGA BROWN
OLGA BROWN
State Bar No. 03155500
111 Soledad, Suite 1725
San Antonio, Texas 78205
Telephone: 210/226-1550
Telecopier: 210/226-1884
Argyle2@sbcglobal.net
Attorney for Plaintiff
NOTICE OF HEARING
IT IS HEREBY ORDERED that the above styled and numbered cause is
set for hearing before Judge Antonia Arteaga on the 28th day of April 2015 at
11:30 a.m., 57th Judicial District Court, Bexar County Courthouse, San Antonio,
Texas.
SIGNED this ______ day of April, 2015.
________________________
HON. ANTONIA ARTEAGA
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing Motion for
Reconsideration was served on each attorney of record or party in accordance
with the Texas Rules of Civil Procedure on this 21st day of April 2015.
:
/s/ Olga Brown_______
OLGA BROWN
_____________________________________________________________________________________________ 6
PLAINTIFF’s Motion for Reconsideration. /New Trial
Tab 6
Rule 91A Motions to Dismiss Chapter 4
TABLE OF CONTENTS
I Legislative History of Rule 9la .1
A Statutory Foundation for Rule 91 a
1. The Legislature's Sketch of Rule 9la. ..... 1
2.. Mandatory Award of Attorney's Fees to Prevailing Pruty . .1
B Adoption of Rule 9la ..... . .... 2
II Nuts and Bolts of a Rule 91 a Motion to Dismiss 3
A Scope of Rule 9la's Application .... ........... 3
B. Rule 9la's Basis for Dismissal . ............. 4
1 No Basis in Law . 4
a A claim may be dismissed when the cause of action alleged is not recognized by Texas law. . ................ 4
b A claim may be dismissed based on the facts alleged in the pleading.. 4
c. A claim may be dismissed based on exhibits attached to any pleadings pursuant to Rule. 59 . 5
2. No Basis in Fact. 5
C. Rule 91 a Deadlines .5
I. Filing the Motion ... 5
2 Setting a Heming ..... . ....... 5
3. Responding to the Motion . ············· 6
4. Obtaining a Ruling on the Motion . ..... 6
D ContentsofaRule9laMotion ... 6
E Mandatory A wrud of Attomey Fees 6
III Will Rule 9la Prove to be a Usefol Tool? .. .6
L
Rule 91A Motions to Dismiss Chapter 4
TABLE OF AUTHORITIES
Cases
Birdo v Williams, 859 S.W2d 571 (Tex. App-Houston (!st Dist] 1993, no writ)... 5
Boyles v. Kerr, 855 S..W.2d 593 (I ex. 1993) .4
Centennial Ins v. Commercial Union Ins, 803 S.W.2d 479 (Tex. App -Houston [14th Dist] 1991, no writ) 3
City of Keller v. Wilson, 168 S.WJd 802 (Tex. 2005) ...... 4
Delgado v Methodist Ho.sp, 936 S W2d 479 (Tex. App -Houston [14th Dist] 1996, no WI it) ....... 5
Fort BendCountyv Wilson, 825 S W2d 251 (Tex. App . -Houston [14th Dist] 1992, no writ). .3
GTE Comm'n Sys. v. Janner, 856 S.W.2d 725 (Tex . 1993)... . ... .A
Hamilton v. Pechacek, 319 S.W 3d 801 (Tex. App-Fort Worth 2010, no pet) 4
Moselq v Hernandez, 797 S. W 2d 240 (Tex. App -Corpus Christi 1990, no writ) ..... 3
Nath v Texas Children's Hosp, 375 S.W.3d 403 (Tex. App -Houston [14th Dist] 2012, pet filed) .5
Scott v. Gallagher, 209 S WJd 262 (Tex. App -Houston [!st Dist] 2006, no pet) A, 5
Tex &NewOrleansRR Co v Compton, 136S.W2d 1113(1940) ...... 5
Winters v. Parker, 178 S W3d 103 (Tex App . -Houston [!st Dist] 2005, no pet) ... 7
Statutes
TEX Crv PRAC &REM.CODE§ 14002 . .3
\'
TEX crv. PRAC. & REM. CODE § 14 . 003 3,4
TEX Gov' I CODE § 22 .004(g) . 3,5
Rules
FED R Crv p 12(b)(6) . .3
TEX R crv p 13. 4
TEX R Crv p 47(a). 5
TEXR Crv p 91a . . passim
Session Laws
Act of May 25, 2011, 82nd Leg., R.S., ch. 203 (HB 274} . . I, 6
Articles
Angela Morris, Texas Lawyer Blog (Nov 16, 2012), http://texaslawyertypepad . com/texas_ lawyer_blog
/2012/11 /high-court-approves-rules-for-dismissal-expedited-proceedings . html . . .6
Justices Jane Bland, Bill Boyce, and Greg Perkes, What's Appealing About the New Di.smissal and Expedited
Trial Rules?, presented at the 23rd Annual Conference on State and Federal Appeals, June 13-14, 2013 3
!Ort Reform Clo.sing the Lottery, THE ECONOMIST, Dec. IO, 2011; see also Press Release fiom the Office of
Gov Rick Perry, Lawsuit Reforms Cut Down on Frivolous Claims, Expedite Justice for the Deserving (July
27, 2011 ), http://governor .state tx us/news/press-release/I 6430/ . I
ii
Rule 91A Motions to Dismiss Chapter 4
SECTION 1.01 Amends Section 22 . 004,
RULE 91A MOTIONS TO Government Code, by adding Subsection
DISMISS (g), as follows:
I. LEGISLATIVE HISTORY OF RULE 91A (g) The supreme comt shall
Earlie1 this yea1, the Texas Sup1eme Court adopt rules to p1ovide fo1 the
app1oved Texas Rule of Civil Procedme 9la, which dismissal of causes of action that
allows defendants to seek dismissal of any cause of have no basis in law 01 fact on
action that has no basis in law 01 fact motion and without evidence.
Rule 9la introduces Texas lawye1s to a new The mies shall provide that the
motion to dismiss that is one of the many production motion to dismiss shall be
of House Bill 274, which became effective on granted 01 denied within 45 days
Septembet l, 2011. 1 House Bill 274 gained national of the filing of the motion to
attention as a "loser pays" tOJt refotm law intended to dismiss The mies shall not apply
streamline litigation and discourage ftivolous to actions under the Family Code
lawsuits . 2 To accomplish these goals, the Legislatme
enacted a statute requesting that the Texas Supreme 2 Mandatory Awrud of Attorney's Fees to
Comt to draft and adopt mies creating a new motion Prevailing Patty
to dismiss with a mandato1y award of attorney's fees The second statute added by House Bill 2 74
to the prevailing patty. provides fo1 a mandato1y award of attorney's fees to
Rule 9la's motion to dismiss p1ovides an the prevailing patty
oppo1tunity for a defendant to obtain an expeditious
dismissal of meritless causes of actions Although SECTION 1 02.. Amends Chapter 30,
Rule 91 a provides litigators with a potentially useful Civil Practice and Remedies Code, by
tool, the rule's mandato1y awrud of attorney's fees to adding Section 30 . 021, as follows:
the prevailing pa1ty will dete1 many from using its
procedures rathe1 than othe1, less expeditious, Sec 30021 AWARD OF
methods for obtaining a pre-trial dismissal of ATTORNEY'S FEES IN
/
I metitless claims RELATION TO CERTAIN
' MOTIONS TO DISMISS.
A.. Statutory Foundation for Rule 91a Requires the comt, in a civil
House Bill 274 adds two statutes-section proceeding, on a ttial comt's
22 004(g) in the I exas Government Code and section granting 01 denial, in whole 01 in
30 . 021 in the Texas Civil Practice and Remedies prut, of a motion to dismiss filed
Code-that lay the foundation for Rule 91 a and its unde1 the mies adopted by the
mandatmy awrud of attorney's fees supreme comt under Section
22 .004(g), Government Code, to
1. The Legislature's Sketch of Rule 9la awrud costs and ieasonable and
The first statute added by House Bill 274 gives necessary attorney's fees to the
the Texas Supreme Comt the task of adopting mies prevailing patty. Provides that
creating a motion to dismiss claims that have no basis this section does not apply to
in law 01 fact: actions by 01 against the state,
other governmental entities, 01
public officials acting in theiI
official capacity or under colo1 of
law
1
See Act of May 25, 2011, 82nd Leg., RS, ch
203 (HB 274) In response to these statuto1y directives, the
Texas Supreme Comt adopted Rule 91 a.
2 See Tort Reform Clo.sing the Lottery, IHE
ECONOMIST, Dec 10, 2011; see also Press Release
from the Office of Gov Rick Perry, Lawsuit
Reforms Cut Down on Frivolous Claims, Expedite
Justice for the Des·erving (July 27, 2011),
http://govemor state tx us/news/press-
release/16430/
Rule 91A Motions to Dismiss Chapter 4
B.. Adoption of Rule 91a
Ihe Texas Supreme Court adopted Rule 9la on (a) Ihe court may not rule on a
February 12, 2013.. 3 Rule 9la provides the following motion to dismiss if, at least 3
rules: days before the date of the
hearing, the respondent files a
91a. Dismissal of Baseless Causes of nonsuit of the challenged cause of
Action action, or the movant files a
withdrawal of the motion.
91a .. 1 Motion and Grounds.. Except in
a case brought under the Family Code or (b) If the respondent amends the
a case governed by Chapter 14 of the challenged cause of action at least
I exas Civil Practice and Remedies Code, 3 days before the date of the
a party may move to dismiss a cause of heating, the movant may, before
action on the grounds that it has no basis the date of the hearing, file a
in law or fact. A cause of action has no withdrawal of the motion or an
basis in law if the allegations, taken as amended motion directed to the
true, together with inferences reasonably amended cause of action.
drawn from them, do not entitle the
claimant to the relief sought A cause of (c) Except by agreement of the
action has no basis in fact if no parties, the court must rule on a
reasonable person could believe the facts motion unless it has been
pleaded . withdrawn or the cause of action
has been nonsuited in accordance
91a.2 Contents of Motion .. A motion to with (a) or (b) In ruling on the
dismiss must state that it is made pursuant motion, the court must not
to this rule, must identify each cause of consider a nonsuit or amendment
action to which it is addressed, and must not filed as permitted by
state specifically the reasons the cause of paragraphs (a) or (b)
action has no basis in law, no basis in
fact, or both (d) An amended motion filed in
accordance with (b) restarts the
91a.3 Time for Motion and Ruling.. A time periods in this rule .
motion to dismiss must be:
91a ..6 Hearing; No Evidence
(a) filed within 60 days after the first Considered.. Each party is entitled to at
pleading containing the least 14 days' notice of the hearing on the
challenged cause of action is motion to dismiss Ihe court may, but is
served on the movant; not required to, conduct an oral hearing
on the motion. Except as required by
(b) filed at least 21 days before the 9la.7, the court may not consider
motion is heard; and evidence in ruling on the motion and must
decide the motion based solely on the
(c) gr anted or denied within 45 days pleading of the cause of action, together
after the motion is filed . with any pleading exhibits permitted by
Rule 59
91a.4 Time for Response.. Any
response to the motion must be filed no 91a . 7 Award of Costs and Attorney
later than 7 days before the date of the Fees Required.. Except in an action by or
hearing. against a governmental entity or a public
official acting in his or her official
91a.5 Eflect of Nonsuit or capacity or under color of law, the court
Amendment; Withdrawal of Motion. must award the prevailing party on the
motion all costs and reasonable and
I" necessary attorney fees incurred with
3
See TEX R Clv P 91 a, comment to 2013
'-.,-----
change respect to the challenged cause of action
2
Rule 91A Motions to Dismiss Chapter 4
in the trial court The court must consider by Rule 12(b)(6) of the Federal Rules of Civil
evidence regarding costs and fees in Procedure because it allows a defendant to move for
~­ determining the award dismissal without filing a special exception and then a
I summary judgment. 4 Unlike Rule 12(b)(6), which
91a .. 8 Eflect on Venue and Personal merely allows a party to file a motion asserting that
Jurisdiction. This rule is not an the opposing party's pleading does not state a claim
exception to the pleading requirement of upon which relief can be granted, 5 Rule 9Ia contains
Rules 86 and I 20a, but a party does not, a number of rules specifically governing its motions
by filing a motion to dismiss pursuant to to dismiss
this rule or obtaining a ruling on it, waive
a special appearance or a motion to A. Scope of Rule 91a 's Application
transfer venue. By filing a motion to Rule 9Ia generally applies to all civil
dismiss, a party submits to the court's proceedings with two exceptions First, as required
jurisdiction only in proceedings on the by the Legislature, Rule 9Ia does not apply to cases
motion and is bound by the court's ruling, brought under the F amity Code . 6 Second, Rule 9 I a
including an award of attorney fees and does not apply to inmates' in /Olma pauperis
costs against the party . lawsuits, which are governed by Chapter I 4 of the
Texas Civil Practice and Remedies Code 7
91a . 9 Dismissal Procedure (Chapter I 4 contains its own distinct dismissal
Cumulative.. This rule is in addition to, mechanism 8)
and does not supersede or affect, other
procedures that authorize dismissal. 4
See, e g, Justices Jane Bland, Bill Boyce, and
Comment to 2013 change: Rule 9la is a Greg Perkes, What's Appealing About the New
Dismissal and Expedited Trial Rules?, presented at
new rule implementing section 22. 004(g)
the 23rd Annual Conference on State and Federal
of the Texas Government Code, which Appeals, June 13-14, 2013, at I, 7-10 (citing Fort
was added in 20 I I and calls for rules to Bend County v Wilson, 825 S.W2d 251, 253 (Tex
provide for the dismissal of causes of App -Houston [I 4th Dist] I 992, no writ);
I action that have no basis in law or fact on C'entennial Ins v. Commercial Union Ins , 803
' motion and without evidence. A motion S.W2d 479, 482 (Tex. App.-Houston (14th Dist]
to dismiss filed under this rule must be 1991, no writ); and Moseley v Hernandez, 797
ruled on by the court within 45 days S W 2d 240, 242 (Tex App -Corpus Christi I 990,
unless the motion, pleading, or cause of no writ)
action is withdrawn, amended, or 5
FED R Clv P 12(b)(6).
nonsuited as specified in 91 as. If an
amended motion is filed in response to an 6
TEX R C!V P. 9la I; TEX Gov'r CODE §
amended cause of action in accordance 22.004(g) ("The rules shall not apply to actions
with 91a5(b), the court must rule on the under the Family Code . ").
motion within 45 days of the filing of the 7
amended motion and the respondent must TEX. R Clv p 9la I; '"e TEX. C!V PRAC &
REM CODE§ 14 . 002
be given an opportunity to respond to the
amended motion The term "hearing" in 8
TEx. CIV PRAC. & REM CODE§ 14 003 Section
the rule includes both submission and an 14 003 allows for dismissal of an inmate's claim ifa
oral hearing Attorney fees awarded court finds that the allegation of poverty in the
under 9Ia.7 are limited to those affidavit or unsworn declarations is false, the claim
associated with the challenged cause of is frivolous or ·malicious, or the inmate filed the
action, including fees for preparing or required affidavit or unsworn declaration knowing
responding to the motion to dismiss . that it was false Id. § 14 003(a) In determining
whether a claim is frivolous or malicious, a trial
court may consider whether the claim's realistic
II.. NUIS AND BOLTS OF A RULE 91A
chance of ultimate success is slight, the claim has no
MOTION TO DISMISS arguable basis in law or in fact, it is clear that the
party cannot prove facts in support of the claim, or
Rule 9 I a provides guidelines for a new motion the claim is substantially similar to a previous claim
to dismiss, which has been widely compar·ed, and not filed by the inmate because the claim arises from the
entirely accurately, to the motion to dismiss allowed same operative facts
3
Rule 91A Motions to Dismiss Chapter 4
R Rule 91a 's Basis for Dismissal prevents a court from considering evidence . 15 This
Rule 9ia allows dismissal of any cause of lack of evidentiary and factual issues focuses a
~' action that "has no basis in law or fact " 9 This same court's inquiry under Rule 9la
' pluase is also used in Rule 13 10 and a substantially Courts are likely to dismiss causes of action
similar phrase is used in Chapter l 4ll Texas under Rule 91 a in three circumstances: (I) when the
appellate courts have analyzed the meaning of this cause of action is not recognized by Texas law;
phrase in reviewing sanctions imposed under Rule 13 (2) when the pleading alleges facts that negate a
and dismissals under Chapter 14 The existing cause of action; and (3) when pleading exhibits,
jurisprudence regarding these rules and statutes may attached pursuant to Rule 59, demonstrate that
provide some guidance in understanding Rule 9la; claimant is not entitled to the relief sought as a matter
however, certain distinct differences among the law.
schemes undermine the similarities and make direct
comparisons difficult a A claim may be dismissed when the cause of
action alleged is not recognized by Texas law.
L No Basis in Law Courts need not delve into any evidence to
Under Rule 91a, a claim has no basis in law if determine whether a cause of action is recognized by
"the allegations, taken as true, together with Texas law When a claimant alleges a cause of action
inferences reasonably drawn from them, do not entitle that is not recognized by Texas law (e . g ., a claim for
the claimant to the relief sought." 12 Rule 91a's negligent infliction of emotional distress), 16 the cause
analysis of the legal basis for the relief a plaintiff of action could be dismissed under Rule 9la
seeks presents a relatively straightforward question: Interestingly, unlike Rule 13, Rule 91a does not
Do the allegations in the pleadin& state a cause of recognize that a claim might have a basis in law if
action that would authorize relief? 1 "warranted by good faith argument for the extension,
17
Unlike Rule 13, Rule 91a does not require a modification, or reversal of existing law.." The
trial court to engage in any factual determination absence of this language may indicate that Rule 91a
regarding the motives involved in filing the pleaded provides a more stringent test for a claimant's legal
allegations 14 Io the contrary, Rule 91a expressly contentions than Rule 13
9
( TEX R Crv p 9lal b A claim may be dismissed based on the facts
' alleged in the pleading
10
Rule 13 permits sanctions against an attorneys Dismissal under this portion of Rule 9la may
and parties who file a "groundless" pleading in bad be appropriate when the pleading, on its face, reveals
faith or for the purpose of harassment TEX R. Crv that a claimant is not entitled to the relief sought
P. 13 Rule 13 defines "groundless" as "no basis in
because the alleged facts are legally insufficient to
law or fact and not warranted by good faith
argument for the extension, modification, or reversal provide the claimant with a valid cause of action
of existing law . " Id Such allegations, even taken as true, would not entitle
a claimant to any relief. 18
11
TEX CIV PRAC. & REM. CODE § 14 003(a) For example, dismissal under Rule 91 a may be
(stating that in determining whether to dismiss a appropriate if a plaintiff alleges that by not erecting a
claim, a court may consider whether "the claim has railroad crossing sign a railroad company negligently
no atguable basis in law or in fact" (emphasis caused an automobile to drive into the sixtieth car of
added)) a slow-moving train because if the automobile's
12
Id driver could not see the train, he could not have seen
13
see Scott v. Gallagher, 209 S.W.3d 262, 266
(Tex . App-Houston [!st Dist] 2006, no pet);
Hamilton v Pechacek, 319 SWJd 801, 809 (Tex
15
App . -Fort Worth 2010, no pet) (explaining that a TEX R Crv P 9la.6.
claim has no arguable basis in I.aw under Chapter 14 16
if the claim presents an "indispuiably meritless legal &e Boyles v Ken, 855 S.W.2d 593, 594 (Tex
theory") 1993)
17
14
See GTE Comm 'n Sys. v Tanner, 856 SW 2d Compare TEX. R Crv P 9la. l with TEX. R Crv
725, 731 (Tex. 1993) (explaining that Rule 13 does p 13
not allow sanctions unless the pleading is groundless
(_ and is also brought in bad faith or for the purpose of
18
See City of Keller v Wilson, 168 S.W 3d 802,
harassment). 811-17 (Tex 2005).
4
Rule 91A Motions to Dismiss Chapter 4
a crossing sign either. 19 These facts, even taken as court dismisses a claim under Chapter 14 without an
trne, would not entitle a claimant to any relief'0 evidentiary hearing, appellate courts presume that the
Rule 91a dismissal is unlikely to be applicable claim must have been dismissed for having no
in most cases based on facts alleged in a pleading arguable basis in law rather than in fact") Rule 91a,
because in most circumstances, claimants are able to on the other hand, expressly for bids any evidentiary
allege facts that satisfy Texas's notice pleading hearing 26
requirements21 while avoiding the specificity that Absent an evidentiary hearing, one might ask
could result in dismissal of their claims how a court could possibly evaluate whether a
pleading advances facts that no reasonable person
c A claim may be dismissed based on exhibits could believe." And if a trial court does dismiss a
attached to any pleadings pursuant to Rule 59 claim as having no basis in fact, what does that
Rule 91 a allows courts to consider exhibits indicate about the attorney who filed the petition?
attached to a pleading pursuant to Rule 59,2' Thus, if
the parties simply disagree over the proper C Rule 91a Deadlines
foterpretation of a document attached to a pleading Rule 91 a guarantees a ruling on a motion to
pursuant to Rule 59, a Rule 91a motion to dismiss dismiss no later than 45 days from the date the motion
may provide a procedural vehicle well-suited to is filed 28 This deadline, along with others in Rule
resolving such a dispute. For example, in an 91 a, promises a speedy resolution of the motion to
insurance coverage dispute in which the facts are not dismiss
disputed and the insurance policy is attached to the
pleadings, Rule 91a may provide a procedural vehicle Filing the Motion
for obtaining an expeditious ruling on coverage . A party must decide whether to file a Rule 91 a
motion to dismiss soon after the petition is served
2 No Basis in Fact The motion must be filed within 60 days after service
Rule 91 a states that a claim has no basis in fact of the first pleading containing the challenged cause
if "no reasonable person could believe the facts of action. 29 Rule 91a does not provide an exception
pleaded " 23 This definition seems difficult to apply in to the due order of pleading requirements for motions
the absence of any evidence to place the pleaded facts to transfer venue and special appearances. But a
in context party can file and obtain a ruling on a Rule 91 a
( Neither Rule 13 nor Chapter 14 provide any motion to dismiss without waivin~ a special
help with this problematic definition because both appearance or motion to transfer venue 3
allow for evidentiary hearings . 24 (Jn fact, when a
2 Setting a Hearing
19
Id at 816 (citing Tex & New Orleans RR Co v The motion to dismiss must be filed at least 21
Compton, 136 S.W.2d 1113, 1115 (1940)) days before the motion is heard and may be
withdrawn until 3 days before the hearing 31 When
20 Id
25
21
See, e g, SCott, 209 S W .3d at 266
See TEX. R Crv P 47(a) (stating that a pleading
26
should include "a short statement of the cause of TEX. R Clv P. 91a 6 (implementing TEX GOV'!
action sufficient to give fair notice of the claim CODE § 22 004(g), which requires implementation of
involved"). rules for dismissal of causes of action that have no
22
basis in law or fact on motion and without evidence)
TEX R Crv. p 91a 6
27
23
Birdo v Williams, 859 S.W.2d 571, 572 (Tex
Id App-Houston [!st Dist] 1993, no writ) ("When
24
the trial court, as in the present case, dismisses a
see Nath v Texas Chi!dren'.s Hosp, 375 S.WJd cause [pursuant to Chapter 14] without a fact
403, 427 (Tex. App.-Houston [14th Dist] 2012, hearing, the trial court could not have determined the
pet. filed) (explaining that a trial court may examine suit had no arguable basis in fact" (emphasis
the facts and circumstances at the time of filing the added))
petition in order to determine whether a claim is
without evidentiary support, i.e., has no basis in fact 28
IEX.R CIV P 91aJ(c)
or law); Delgado v. Methodist Hosp, 936 S W.2d
29
479, 487-88 (Tex. App.-Houston [14th Dist] TEX. R CIV. p 91aJ(a)
1996, no writ) (finding a claim to be groundless
(___ under Chapter 14 when the plaintiff presented no
30
TEX R CIV P 9!a.8.
evidence of"extreme and outrageous" conduct) . 31
TEX R Clv P 91a 3(b), 9la 5(a)
5
Rule 91A Motions to Dismiss Chapter 4
setting a Rule 9la hearing, a paity should be awaie determination to the contents of the motion to
that the trial court's deadline to rnle on the motion is dismiss
r-- calculated from the date the motion is filed, not from
1
the date of the hearing 32 The court is not required to E.. Mandatory Award of Attorney Fees
conduct an oral hearing on the motion 33 Rule 9la includes a mandatory award of"costs
and reasonable and necessaiy attorney fees incurred
3.. Responding to the Motion with respect to the challenged cause of action in the
A respondent must file its response to the trial court" to the prevailing party 41 This provision
motion no later than 7 days before the motion is implements section 30 .021 of the Civil Practice &
heaid .34 Up until 3 days before the motion is heard, a Remedies Code, which was enacted by House Bill
claimant may either nonsuit or ainend the challenged 274 42
cause of action 35 In the original version of House Bill 274,
If the respondent ainends the challenged cause section 30 021 would have "authorized" a tiial court
of action at least 3 days before the date of the hem ing, to award costs and attorney's fees However, during
the movant may withdraw the motion or file an the legislative process, the Legislature changed this
ainended motion at any time before the hearing 36 discretionaiy awaid of costs and attorney's fees to a
Filing an ainended motion in response to an amended mandatory award
cause of action, restarts Rule 9la's time periods . 37 In speaking about Rule 9la, one Texas
Supreme Court justice has recognized that the
4.. Obtaining a Ruling on the Motion mandatory award of attorneys' fees may affect the
Unless the movant timely withdraws the motion frequency with which 9la motions ai·e filed:
or the respondent timely nonsuits the challenged
cause of action, a trial court must rule on the motion Whether the motion is granted or denied,
absent an agreement of the parties to the contrmy 38 the winning paity gets attorney fees So,
Notwithstanding any agreement of the paities, if you file a motion and lose, the other
the trial court must grant or deny the motion no later side gets attorney fees So, pmties are
than 45 days after the date the motion is filed . 39 Rule going to have to think seriously about
9la does not specify what happens if a trial court when to use it 43
rules on a motion to dismiss after this 45-day
deadline . III. WILL RULE 91A PROVE IO BE A
USEFUL TOOL?
n. Contents of a Rule 91a Motion Prior to the adoption of Rule 9la, Texas had no
A Rule 9Ia motion to dismiss must: (I) state procedure for expeditiously obtaining dismissal of a
that it is made pursuant to the rule, (2) identify each meritless cause of action Parties could obtain the
cause of action to which it is addressed, and (3) state same result by other means For example, parties
specifically the reasons the cause of action has no could file special exceptions, which could result in
basis in law, no basis in fact, or both. 40 These dismissal of the claims if the respondent failed to
requirements do not seem particularly onerous for the amend its pleadings after the trial court sustained the
movant; however, the rnle does limit the trial court's special exceptions 44 If special exceptions did not
32
See TEX. R CIV. P. 9laJ(c)
41
33
TEX. R C1v. P 91a 6.. This mandatory award
TEX. R CIV P 91a 6 does not apply to causes of action by or against a
34 government entity or a public official acting in his or
TEX R CIV P 9la4 her official capacity or under color of law Id
" TEX. R. C!V. P 91a5 42
See Act of May 25, 2011, 82nd Leg., RS, ch.
36
TEX. R CIV P. 9la5(b) 203, § 102 (HB 274)
43
37
TEX R CIV P 91a 5(d) Angela Morris, Texas Lawyer Blog (Nov. 16,
2012), http://texaslawyer typepad com/texas_
38
TEX R CIV. P. 91a 5(c) lawyer_blog /201211 I/high-court-approves-rules-for-
dismissal-expedited-proceedings .html.
39
TEX R CIV. p 9la3(c).
( 44
See, e.g, Winters v Parker, 178 SWJd 103,
"----- 40
TEX R CIV P 91a.2 105-06 (Tex. App.-Houston [!st Dist] 2005, no
pet).
6
Rule 91A Motions to Dismiss Chapter 4
result in dismissal, parties could also pursue summary
judgment
r-, Rule 9la's promise of an expeditious ruling on
a motion to dismiss makes it a potentially usefol tool
in defending against a claim, but its mandatory award
of attorney's fees will make any lawyer pause before
using it The costs and attorney fees involved in
filing or responding to a motion to dismiss should
typically be relatively inexpensive compared to the
ultimate cost of trying a case or even obtaining
summary judgment
Nevertheless, the mandatory award of attorney
fees will certainly cause both movants and
respondents to approach Rule 91 a with some degree
of caution It will no doubt deter many potential
movants from filing such a motion. However, it will
also place pressure on respondents to take a serious
look at the causes of action alleged .
As lawyers become familiar with this rule, it
will be interesting to see how often Rule 9 la motions
are filed and, once filed, how often the motion
survives to the hearing without the movant
withdrawing the motion or the respondent non-suiting
or amending the challenged causes of action.
(_
7
Tab 7
1
1 REPORTER'S RECORD
2 VOLUME 1 OF 1 VOLUME(S)
3 TRIAL COURT CAUSE NO. 2014-CI-16674
4 CEARTH FAIRE IN THE DISTRICT COURT
5 VS .. BEXAR COUNTY, TEXAS
6 FMP SA MANAGEMENT GROUP,
LLC, D/B/A FOOD MANAGEMENT
7 PARTNERS, LLC, ALL JONES,
ALLEN J . JONES,
8 INDIVIDUALLY AND PETER
DONBAVAND, INDIVIDUALLY 150TH JUDICIAL DISTRICT
9
10
11
12 MOTION TO ENTER DEFENDANTS' FIRST AMENDED
/
RULE 91.a PARTIAL MOTION TO DISMISS
I 13
14
15
16 On the 9th day of April, 2015, the following
17 proceedings came on to be held in the above-titled
18
19
and numbered cause before the HONORABLE ANTONIA
ARTEAGA, Judge Presiding, held in San Antonio, Bexar l
20 County, Texas.
21 Proceedings :reported by computerized stenotype
22 machine.
23
24
25
MARIA E. FATTAHI, CSR, RPR, CRR
Auxiliary Official Court Reporter
(210) 335-1594
2
1 A P P E A R A N C E S
3 MS . OLGA BROWN
SBOT NO. 03155500
4 Attorney at Law
111 Soledad, Ste 1725
5 San Antonio, Texas 78205
Telephone: (210)226-1550
6 ATTORNEY FOR PLAINTIFF
7
8
MR. JUSTIN BARBOUR
9 SBOT NO. 24055142
Schmoyer Reinhard, LLP ·
10 17806 IH 10 West, Ste. 400
San Antonio, Texas 7 82 5 7
11 Telephone: (210)447-8033
ATTORNEY FOR DEFENDANTS
12
( 13
14
15
16
17
18
19
20
21
22
23
24
25
(
'
MARIA E. FATTAHI, CSR, RPR, CRR
Auxiliary Official Court Reporter
(210) 335-1594
3
1 VOLUME 1 OF 1 VOLUME(S)
ORDER GRANTING DEFENDANTS' FIRST AMENDED
2 RULE 91a PARTIAL MOTION TO DISMISS
3
4 APRIL 9' 2015 PAGE VOL.
5 Appearances,. 2 1
6 Index ... 3 1
7 Proceedings.,. 4 1
8 Court's Ruling.,. " •) ., . " 7 l
9 Adjournment .. ' .. . " " " 7 1
10 Court Reporter's Certificate .. 8 1
11
12 WITNESS INDEX
I 13 PLAINTIFF'S WITNESS (ES) DIRECT CROSS VOIR DIRE VOL.
'
14 (None)
15 DEFENDANTS' WITNESS (ES) DIRECT CROSS VOIR DIRE VOL .
16 (None)
17
18 PLAINTIFF'S EXHIBIT(S)
EXHIBIT INDEX
II
19 NO . DESCRIPTION OFFERED ADMITTED VOL. '
20 (None)
21 DEFENDANTS' EXHIBIT($)
22 NO . DESCRIPTION OFFERED ADMITTED VOL.
23 (None)
24
25
(
'
MARIA E,. FATTAHI, CSR, RPR, CRR
Auxiliary Official Court Reporter
(210) 335-1594
4
l THE COURT: 2014-CI-16674 Cearth Faire
2 versus FMP SA Management Group, d/b/a Food Management,
3 Partners, LLC, All Jones, LLC, Allen J. Jones,
4 Individually and Peter Donbavand, Individually.
5 Let the record reflect that we have Mr.
6 Barbour here on behalf of ....
7 MR. BARBOUR: FMP SA Management.
8 THE COURT: And we have Ms. Brown here on
9 behalf of?
10 MS . BROWN: Cearth Faire.
11 THE COURT: Thank you . And today we're
12 here on a motion to enter, and I have been given the
13 proposed order by Mr. Barbour titled Order Granting
14 Defendant's First Amended Rule 9la Partial Motion to
15 Dismiss.
16 And, specifically, Ms. Brown, what
17 objections, if any, do you have to the language? If you
18 could direct the Court to the exact language, which
19 paragraph, and how you'd like to it be to changed.
20 MS . BROWN: Your Honor, we strictly object
21 to the part of the order that orders the plaintiff's
22 claim for promissory estoppel be dismissed and I have
23 arguments and
24 THE COURT: So specifically is that --
25 MS . BROWN: and the --
(
MARIA E. FATTAHI, CSR, RPR, CRR
Auxiliary Official Court Reporter
(210) 335-1594
5
1 THE COURT: Ms. Brown --
2 MS. BROWN: -- and the
3 THE COURT: Ms. Brown, I need to know
4 specifically is that on Paragraph 2 or paragraph l?
5 MS. BROWN: Where the order reads "it is
6 further ordered that the plaintiff's claim for
7 promissory estoppel,'' I would like for ''promissory
8 estoppel'' to be deleted from the order.
9 THE COURT: And do you believe that -- and
10 you were here initially on what date?
11 MR . BARBOUR: On March 18th, Your Honor.
12 THE COURT: On March 18th, did you -- you
( 13 disagree that the Court granted summary judgment with
'
14 regard to promissory estoppel?
15 MS. BROWN: No, Your Honor. I don't agree
16 with that and here's the reason why.
17 THE COURT: What I want to know is do you
18 believe I ordered it on that day or you do not believe I
19 ordered it that day? !
20 '
MS. BROWN: You ordered it that day, but I
21 want to state on the record an objection to that because
22 Mr. Barbour misrepresented to you the fact that the rule
23 required for us to nonsuit that claim and that is
24 definitely not what the rule says.
25 THE COURT: I'm sorry, Ms. Brown. On a
(
MARIA E. FATTAHI, CSR, RPR, CRR
Auxiliary Official Court Reporter
(210) 335-1594
6
I
'
1 motion to enter, it is strictly an administerial hearing
2 wherein I memorialize what took place in our initial
3 hearing which was in March
4 So if you would like to ask the Court to
5 reconsider, I'd be happy to do that but it needs to be
6 properly in a motion to reconsider .
7 But this today is simply a motion to enter
8 the order that was the Court's back in March 18th of
9 2015.
10 MS . BROWN: But on the other hand, Your
11 Honor, I do not want to try this Rule 91a motion by
12 consent .
I 13 I do not want to bring that -- my
'
14 objection to that for the first time in appeal, so I
15 want a record that today before this Court that I have
16 requested and are stating and prepared to argue why the
17 promissory estoppel section of this order must be
18 deleted .
19 THE COURT: I respectfully disagree .
20 Are there any other objections to any
21 other language which you believe the Court did not --
22 the Court ruled upon and it improperly or not correctly
23 stated according to the Court's rule -- not that you
24 disagree with but you think that any language in here
25 does not reflect the Court's ruling from March?
(
MARIA E . FATTAHI, CSR, RPR, CRR
Auxiliary Official Court Reporter
(210) 335-1594
7
,
I
1 MS . BROWN: The other objection that I
2 have, Your Honor, is that Mr. Barbour included in his
3 order that the defendants be awarded reasonable
4 attorney's fees incurred with respect to the challenged
5 causes of action .
6 THE COURT: Would you agree or disagree,
7 Mr. Barbour, that the Court did not award attorney's
8 fees back in March?
9 MR.. BARBOUR: At that time, no, Your
10 Honor, but Rule 91a does make an award of fees mandatory
11 upon granting that motion.
12 THE COURT: Okay.. Again, I did not order
I 13 in March . I am not going to include it in my order of
',
14 today .
15 If you would like for me to reconsider it,
16 you know the pr op er procedure . Your request as to the
17 last sentence of the order requested it is hereby
18 granted .
19 Is there any other objections that you
20 have to the proposed order, Ms. Brown?
21 MS . BROWN: No . None further, Your Honor.
22 Thank you so much .
23 THE COURT: Thank you. Then we'll stand
24 adjourned . Thank you very much.
25
(
MARIA E. FATTAHI, CSR, RPR, CRR
Auxiliary Official Court Reporter
(210) 335-1594
8
1 STATE OF TEXAS
COUNTY OF BEXAR
2
3 I, Maria E. Fattahi, Official Court Reporter in
4 and for the 57th District Court of Bexar, State of
5 Texas, do hereby certify that the above and
6 foregoing contains a true and correct transcription
7 of all portions of evidence and other proceedings
8 requested in writing by counsel for the-parties to
9 be included in this volume of the Reporter's Record
10 in the above-styled and numbered cause, all of which
11 occurred in open court or in chambers and were
12 reported by me .
.
I 13 I further certify that this Reporter's Record
'··
14 of 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 $56.00 and II
18 was paid/will be paid by Ms. Olga Brown.
19
20
WITNESS MY OFFICIAL HAND on this the 20th day of
April, 2015.
I
21
/)~Wt£ I
22
23
Haf~t
Texas
E. Fatta
CSR 3566, Exp.
Auxiliary Official Court
24 101 W. Nueva, Ste. 301
San Antonio, Texas 78204
25 Telephone: 210-335-1594
E-mail: maria.fattahi@bexar.org
(
Tab 8
1
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
2 TRIAL COURT CAUSE NO. 2014-CI-16674
3
CEARTH FAIRE ) IN THE DISTRICT COURT
4 )
)
5 VS. ) 150TH JUDICIAL DISTRICT
)
6 )
FMP SA MANAGEMENT GROUP, LLC, )
7 ET AL. ) BEXAR COUNTY, TEXAS
*******************************************************
8
MOTION FOR NEW TRIAL
9
*******************************************************
10
11
12
13
14
15 On the 6th day of May, 2015, the following came on
16 to be heard in the above-entitled and numbered cause
17 before the Honorable Antonia Arteaga, Judge presiding,
18 held in San Antonio, Bexar County, Texas:
19 Proceedings reported by computerized stenotype
20 machine.
21
22
23
24
25
2
1 APPEARANCES
2
3 MR. JEFFREY SMALL
SBOT NO. 00793027
4 12451 Starcrest Drive, Suite 100
San Antonio, Texas 78216
5 Phone: (210) 496-0611
Appearing for Cearth Faire
6
7 MS. OLGA BROWN
SBOT NO. 03155500
8 111 Soledad Street, Suite 1725
San Antonio, Texas 78205
9 Phone: (210) 226-1550
Appearing for Cearth Faire
10
11 MR. JUSTIN J. BARBOUR
SBOT NO. 24055142
12 17806 West IH 10, Suite 400
San Antonio, Texas 78257
13 Phone: (210) 447-8033
Appearing for FMP SA Management Group, LLC,
14 et al.
15
16
17
18
19
20
21
22
23
24
25
3
1 CHRONOLOGICAL INDEX
2 VOLUME 1 OF 1
3 MARCH 18, 2015
PAGE VOL.
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Appearances.............................. 2 1
5
Court Reporter's Certificate............. 28 1
6
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4
1 P R O C E E D I N G S
2 THE COURT: 2014-CI-16674, Cearth Faire
3 versus FMP SA Management Group, LLC, DBA Food Management
4 Partners; All Jones, LLC; Allen J. Jones, individually;
5 and Peter Donbavand, individually.
6 If I could have the attorneys please
7 identify themselves for the record and whom they
8 represent beginning on my left?
9 MR. SMALL: Jeff Small for Cearth Faire.
10 THE COURT: Thank you, Mr. Small.
11 MS. BROWN: Your Honor, Olga Brown, also
12 for Cearth.
13 THE COURT: Good morning, Ms. Brown.
14 MR. BARBOUR: Good morning, Your Honor.
15 Justin Barbour for defendants.
16 THE COURT: Good morning, Mr. Barbour.
17 MR. RAY: Your Honor, I'm Robert Ray. I'm
18 not counsel of record on this matter, but I am counsel
19 of record for one of the defendants in another cause of
20 action that has bearing on this one.
21 THE COURT: Okay. So we're going to let
22 you have a seat and just hang out with us this morning.
23 MR. RAY: If you don't mind.
24 THE COURT: I don't mind at all.
25 MR. RAY: Thank you.
5
1 THE COURT: And it is currently 8:25, and
2 we are scheduled to hear a motion for a new trial. The
3 Court has granted you 60 minutes in order to present,
4 which is highly unusual in the 57th. Ordinarily our
5 motions for new trial are anywhere from 15 to
6 30 minutes, but your legal assistant is quite
7 persuasive, Ms. Brown. So we agreed to go ahead and
8 give you the full hour.
9 So with that, you have the floor. Or is it
10 going to be you or Mr. Small?
11 MS. BROWN: Your Honor, I would like to
12 make the opening, have Mr. Barbour address it, and then
13 Mr. Small kind of close it if that's all right with Your
14 Honor.
15 THE COURT: Okay. So you'd like to start
16 out and then -- well, this is what we'll -- give me the
17 reasons why you believe that I got it wrong the first
18 time. And then if you'd like to allow Mr. Small to
19 chime in -- I don't need opening, I don't necessarily
20 need closing remarks at all, but we want to get straight
21 to the meat of the matter.
22 Ms. Brown, I'll let you begin.
23 And then, Mr. Small, you can take it up.
24 And then we're going to hear from
25 Mr. Barbour. If there's any reply necessary in between,
6
1 we will direct accordingly.
2 Go ahead, Ms. Brown.
3 MS. BROWN: Thank you, Your Honor.
4 And once again, it's nothing that the Court
5 did wrong at all, but here's where I -- the reason that
6 we're asking this morning that you deny the motion on --
7 and -- reconsider and deny the motion, frankly, for
8 this, Your Honor: Because the defendants --
9 THE COURT: Let's be clear --
10 MS. BROWN: Yes.
11 THE COURT: -- there is no motion to
12 dismiss.
13 MS. BROWN: Yes.
14 THE COURT: Okay.
15 MS. BROWN: Because for the simple reason,
16 Your Honor, that the defendants did not meet the
17 requirements of 91(a). That rule has very specific
18 rules. And I would like to direct the Court's attention
19 to Rule 91(a)(2). And it addresses contents of the
20 motion. And this requirement that they did not meet
21 does not support the ruling of this Court in this way,
22 Your Honor:
23 On February 3rd, 2015, the defendants filed
24 their last pleading, and it was an amended 91(a) partial
25 motion for dismissal. Over a month later -- and it was
7
1 timely -- the petitioner filed an amended motion
2 dropping the cause of action for promissory estoppel and
3 adding oral gift of real estate.
4 Following that, Your Honor, the defendants
5 were required to do one of two things. They either had
6 to amend their motion to dismiss or to withdraw their
7 motion. They did neither. Even though in their
8 response, Your Honor -- we stated this is a new cause of
9 action that we're adding. And in all fairness we filed
10 this 10 days before the March 18th hearing that Your
11 Honor entertained.
12 Now, because they failed to meet this
13 91(a)(2) contents of the motion, the Court's ruling
14 cannot support the denial.
15 91(a) -- the granting of 91(a), Your Honor,
16 is done in three instances. And I'll be really brief.
17 One is that there's not a recognized cause
18 of action in this state. Oral gift of real estate is a
19 recognized cause of action in this state.
20 The second instance in which the motion is
21 granted is if on the facts -- the facts of -- petitioner
22 cannot gain relief. For example, if the petitioner in a
23 say auto accident pleads that the accident happened
24 15 years ago and there was no tolling statute, then on
25 its face that pleading is -- cannot bring relief to the
8
1 petitioner. In that instance the motion to dismiss is
2 granted.
3 The third one is when a petitioner attached
4 an -- a document or a affidavit, let's say an insurance
5 policy. And the insurance policy definitely does not --
6 states that there's no coverage or he's not a named
7 insurer (sic). And I've looked at all the cases, Your
8 Honor, and it's only on those three case -- those three
9 general groups of cases that a motion to dismiss is
10 granted.
11 The Court in making a legal analysis of
12 whether or not to grant the motion must do this: Do the
13 allegations of the pleading state a cause of action
14 which authorizes relief?
15 Our cause of action for oral gift of real
16 estate is a viable cause of action. It's a recognized
17 cause of action.
18 And in that case, Your Honor, because it
19 was not challenged, it was not challenged by the
20 defendant --
21 THE COURT: What specifically do you say
22 was not challenged? The cause of action on oral gift of
23 real estate?
24 MS. BROWN: That's correct, Your Honor.
25 THE COURT: Okay.
9
1 MS. BROWN: And like I said, he had to
2 amend his motion or withdraw it, one of the two. He did
3 not do that.
4 And so, Your Honor, this -- the Court does
5 not have discretion to determine whether or not the
6 contents of the motion were met or not. They either
7 were met or they were not.
8 For example, he did not challenge and state
9 specifically what his challenges were. So, therefore,
10 this Court I believe should reconsider their ruling on
11 this and deny their cause of action.
12 The same thing, Your Honor, applies for our
13 claim of conspiracy. In his third amended petition for
14 -- to dismiss or in his third motion to dismiss --
15 excuse me. Clear the record. In his second amended
16 motion to dismiss, he alleges that there's no cause of
17 action because of intra-corporate immunity.
18 I came back, Your Honor -- Mr. Small and I
19 came back and we amended our pleadings and said
20 basically the corporate officers were not acting in
21 their corporate duties. They were acting as
22 individuals.
23 Conspiracy is basically this: One or more
24 individuals getting together to commit an unlawful act.
25 And so that too, Your Honor, is not supported by the
10
1 motion.
2 In other words -- in other words, he did
3 not meet the legal requirements of the rule. And,
4 therefore, the ruling that the motion be granted cannot
5 stand.
6 And basically, Your Honor, like I said, we
7 pointed this out to the Court in the original hearing on
8 March 18th. We said he did not amend.
9 Mr. Barbour on behalf of the defendants
10 went on. And even in the response that he filed
11 yesterday after --
12 THE COURT: I'm sorry, Ms. Brown, if I can
13 interrupt just a second. You seem very clear on your
14 statements with regard to the arguments made on March
15 18th.
16 MS. BROWN: Yes.
17 THE COURT: Is there a transcript
18 available?
19 MS. BROWN: Yes, there is, Your Honor.
20 THE COURT: Okay. Thank you.
21 MS. BROWN: And I have it with you (sic)
22 and -- because the defendants allege that we didn't
23 bring it up to the attention of the Court. We did.
24 THE COURT: Okay.
25 MS. BROWN: And I have the transcript. And
11
1 it's page 6 lines 10 and 11 of the transcript.
2 THE COURT: Thank you.
3 MS. BROWN: And Mr. Small at that time also
4 informed the Court that this proceeding is basically
5 about pleadings. That the rule strictly says the Court
6 cannot entertain evidence. What happened in that
7 March 18th meeting was evidence. But this whole 91(a),
8 the new rule, is about pleadings. Did the attorneys,
9 Mr. Jeff Small and I, plead correctly oral gift of real
10 estate?
11 We did. It went unchallenged. And,
12 therefore, Your Honor, we're saying please reconsider
13 and deny their motion in its entirety.
14 THE COURT: Thank you.
15 Mr. Barbour, would you like to reply at
16 this point or would you like Mr. Small to go ahead.
17 MR. BARBOUR: I would yield to plaintiff's
18 discretion. If Mr. Small feels like he can blend in at
19 this point, I would be happy to respond after that
20 but --
21 MR. SMALL: Your Honor, I don't have a
22 whole lot to add because Ms. Brown was very succinct.
23 Just using the language of the Rule 91(a)(5) says that
24 the Court may not rule on a motion to dismiss after
25 nonsuit or amendment. So consequently the promissory
12
1 estoppel is beyond the Court's reach.
2 And similarly 91(a)(2), you know, does say
3 that -- that the pleadings must tell why -- it must
4 address each cause of action. Well, oral gift of real
5 estate was in our fifth amended petition, but it was not
6 in FMP's live 91(a) motion so consequently that too is
7 beyond the Court's reach.
8 So promissory estoppel is not in the fifth
9 amended, but yet it was addressed and ruled on. And I
10 would contend that according to the rule that promissory
11 estoppel and oral gift of real estate are both beyond
12 the Court's discretion.
13 THE COURT: Thank you.
14 Mr. Barbour.
15 MR. BARBOUR: Yes, Your Honor. I'll get to
16 the substance of I think plaintiff's argument in a
17 moment, but first Your Honor hadn't quite asked whether
18 this objection was raised at the March 18th hearing,
19 which the motion to dismiss was originally argued.
20 Ms. Brown directed us to page 6, lines 10
21 and 11 of the hearing transcript, which I think is at
22 tab 3 of the binder that Your Honor has.
23 And as I read page 6 line 3 (sic), that's
24 actually me talking just giving an overview of
25 plaintiff's sexual harassment claim, which is not at
13
1 issue in the motion to dismiss at all.
2 THE COURT: I believe it's page 6, line 10
3 and 11 that she referenced.
4 MR. BARBOUR: 10 and 11, Your Honor, yes,
5 Your Honor, that's what I'm looking at as well. I
6 apologize if I misspoke, but that is me giving an
7 overview of plaintiff's sexual harassment claim under
8 chapter 21, which isn't a target of the motion to
9 dismiss at all. That is certainly not plaintiff raising
10 an objection as to the fact that the contents of the
11 motion aren't directed to the oral gift or amended
12 conspiracy claim.
13 So on that basis, Your Honor, there's
14 authority cited in our response indicating that the
15 parties have a duty to raise objections, to raise
16 concerns to the Court at their earliest opportunity. In
17 this case that was indisputably at the March 18th
18 hearing at which these arguments were made.
19 Plaintiff declined to raise these
20 objections at that time and instead argued the motion on
21 the merits. I don't know why that would be, but that
22 was the tactic they chose, Your Honor. So our
23 contention would be that any such arguments have been
24 waived at this point and would not be a ground to either
25 reverse the Court's decision on the motion to dismiss or
14
1 potential error on that point.
2 THE COURT: Can we pause for just a second?
3 MR. BARBOUR: Yes, Your Honor.
4 THE COURT: Ms. Brown, did you mean to
5 bring the Court's attention to a different part of your
6 transcript?
7 MS. BROWN: I will, Your Honor. I'm going
8 to have Mona look through it. I must have quoted the
9 wrong --
10 THE COURT: Okay. Just let us know when
11 you're ready.
12 Mr. Barbour, I'm going to allow you to
13 continue.
14 MR. BARBOUR: Yes, Your Honor.
15 So that initial point aside, Your Honor,
16 next we're turning to the property-related claims where
17 Ms. Faire is in essence attempting to ask the Court at
18 trial or at some point to compel defendants to transfer
19 title to a home that she's living in currently without
20 any written agreement between the parties whatsoever
21 under the guise that there was a promise of a gift at
22 some point that this home would be transferred.
23 Ms. Brown, as I understand, is arguing that
24 this oral gift claim wasn't before the Court at the
25 March 18th hearing and therefore can't be the subject of
15
1 the motion to dismiss.
2 In my perspective, I see a few different
3 issues with her contention here. The first, Your Honor,
4 is that rule 91(a)(5)(a) clearly describes what a
5 plaintiff has to do or what a party has to do if they
6 don't wish to take a claim all the way through the
7 motion to dismiss hearing.
8 Mr. Small has suggested that a claim is
9 nonsuited or amended, that it's beyond the Court's
10 reach. With all due respect to Mr. Small, Your Honor, I
11 don't believe that's correct.
12 Rule 91(a)(5)(a) specifically says the
13 Court may not rule on a motion to dismiss if at least
14 three days before the date of the hearing the respondent
15 nonsuits the challenge cause of action or the movant
16 files a withdrawal of the motion.
17 We did not withdraw our motion, and
18 plaintiff very clearly did not file a nonsuit of her
19 claim of promissory estoppel. Meaning, Your Honor, no
20 matter where we end up, as of the March 18th hearing,
21 the promissory estoppel claim is still both before the
22 Court and also it's also subject to that motion to
23 dismiss.
24 Plaintiff is now alleging that she dropped
25 the promissory estoppel claim and instead amended this
16
1 new claim for oral gift of real estate.
2 They're not separate claims, Your Honor.
3 They are the same claim entirely. And plaintiff has
4 merely repackaged the existing claim, which has been
5 present in her petition under the guise of a promissory
6 estoppel claim since late October trying to avoid the
7 motion to dismiss through this kind of I would call
8 gamesmanship potentially, Your Honor, but certainly a
9 nonsubstantive change there.
10 It's reflected by plaintiff's pleadings,
11 there's no substantive difference between the nature of
12 the underlying allegations whatsoever between this
13 alleged promissory estoppel and the subsequent oral gift
14 claim.
15 Plaintiff's third amended petition, which
16 alleged the quote, unquote promissory estoppel claim
17 four times alleges that plaintiff was quote, unquote
18 gifted the property.
19 And then we move to the fourth petition
20 which is filed in response to the motion to dismiss.
21 And then she removes the term promissory estoppel and
22 inserts the term oral gift of real estate suggesting
23 that it's a different claim and that we then have to
24 kick this can down the road later on to another motion
25 to dismiss hearing, but that's neither warranted nor
17
1 necessary, Your Honor. It's all the same claim trying
2 to compel a transfer of property in the absence of a
3 statute of frauds.
4 And specifically to this point, Your Honor,
5 I would argue that plaintiff has conceded the fact that
6 the oral gift claim is, in fact, addressed in the Rule
7 91(a) motion to dismiss.
8 On page 2 of her response to that motion,
9 plaintiff argues, quote, by their Rule 91(a) motion,
10 defendants challenge plaintiff's claim for an oral gift
11 of real estate.
12 And then she continues on to some of the
13 merits of that.
14 But plaintiff admits in her response that
15 the oral gift claim is in fact challenged by the Rule
16 91(a) motion to dismiss. And subsequently falling back
17 from that position trying to, you know, argue the exact
18 opposite at this point, Your Honor, has no basis
19 whatsoever and she's bound to her prior pleadings, which
20 admitted which claims were in fact addressed in that
21 motion.
22 And then finally, Your Honor, I would note
23 that I respectfully take issue I think with Mr. Small's
24 interpretation and Ms. Brown's interpretation of Rule
25 91(a) which seemingly would require the parties, you
18
1 know, to constantly be amending their Rule 91(a) motion
2 to dismiss every time an amended pleading is filed in
3 response to it. That's not what the rule requires.
4 The rule requires you state the basis on
5 which there's no basis in law or no basis in fact for
6 the claim alleged.
7 Our Rule 91(a) motion contends -- properly
8 I believe -- that plaintiff's claim for a
9 property-related claim trying to compel the transfer of
10 this home is barred by the statute of frauds, that she
11 has not shown any exceptions, you know, available to
12 that claim to show that even accepting all of her
13 allegations as true, she would be able to compel the
14 transfer of that property in the absence of a written
15 agreement.
16 It doesn't matter whether you style the
17 argument as promissory estoppel, oral gift of real
18 estate, or whatever other claim plaintiff may conjure
19 later on in this litigation potentially. The statute of
20 frauds is still the reason that claim fails. That
21 defense and that argument is stated succinctly and
22 sufficiently under Rule 91(a) to articulate why
23 plaintiffs can't recover and their claim has no basis in
24 the law. And, therefore, the motion to dismiss is
25 appropriate.
19
1 THE COURT: Thank you, Mr. Barbour.
2 Give me just one second please, Mr. Small.
3 MR. SMALL: Yes, ma'am.
4 (Short pause.)
5 THE COURT: We're back on the record.
6 Mr. Barbour, you're standing. Was there
7 something more?
8 MR. BARBOUR: As to the oral gift claim,
9 Your Honor, I would finally note, none of plaintiff's
10 arguments contend that she has in fact alleged a
11 sufficient claim for this oral gift of real estate. At
12 our hearing, we discussed in detail the fact that
13 plaintiff has not shown any present gift, any immediate
14 transfer of property as necessary to state that claim.
15 So all of these technicalities of Rule 91(a) aside,
16 which I also believe are baseless, at the end of the day
17 she still has not alleged a claim that stands up to
18 scrutiny for this transfer of real estate. And,
19 therefore, Your Honor, I believe that it was, in fact,
20 appropriate for the Court to dismiss that
21 property-related claim.
22 Would the Court like me to address the
23 conspiracy claim at this time, as well?
24 THE COURT: Yes.
25 MR. BARBOUR: Yes, Your Honor.
20
1 Finally we turn to the conspiracy claim and
2 plaintiff's argument again at this point is essentially
3 that because she filed an amended petition in response
4 to the motion to dismiss, that therefore this claim was
5 somehow beyond the Court's reach and the Court could not
6 reach the merits of whether or not she had alleged that
7 conspiracy claim.
8 This is not within Rule 91(a) either, Your
9 Honor. Rule 91(a) requires that we file a motion to
10 dismiss, identify the cause of action in fact that it
11 can't go forward. It allows the plaintiff the option to
12 either respond to the motion to dismiss or to amend her
13 pleadings, which it does, but the rule does not
14 foreclose the Court's ability to rule on a motion to
15 dismiss notwithstanding that amendment, that the Court
16 has full discretion to evaluate the merits of that claim
17 and to see whether there's a basis in law or a basis in
18 fact for that claim and to move forward.
19 Plaintiff's reasoning to Rule 91(a), we
20 would indefinitely be cycling through and forever
21 amending our pleadings and amending our motions and
22 never reaching the goal of Rule 91(a), which is the
23 efficient resolution and dismissal potentially of
24 patently frivolous and baseless causes of action.
25 THE REPORTER: Would you please slow down.
21
1 MR. BARBOUR: I apologize for that. I
2 apologize.
3 So there being no requirement that we have
4 amended our Rule 91(a) motion in response to her amended
5 petition, that arguments falls flat.
6 And again, Your Honor, I would turn to the
7 merits of plaintiff's conspiracy claim. And again at
8 the March 18th hearing on the motion to dismiss,
9 plaintiff was completely unable to identify a single
10 allegation in her petition that showed an unlawful or
11 illegal act taken by any of defendants whatsoever.
12 Therefore, that claim has no basis in law under the
13 wording of Rule 91(a)(1) because her allegations even
14 taken as true would not entitle her to the relief
15 sought. Meaning if we took her petition and put it in
16 front of a jury and said everything in here is true,
17 they would not be able to render a verdict for her on
18 that conspiracy claim because there's no unlawful or
19 illegal acts alleged anywhere within that petition.
20 And so for those reasons, Your Honor, we
21 would suggest that the Court was entirely proper in
22 dismissing plaintiff's property-related claims and her
23 conspiracy claims. And respectfully I ask that the
24 Court deny the plaintiff's motion for new trial.
25 THE COURT: Thank you, Mr. Barbour.
22
1 Mr. Small, round two.
2 MR. SMALL: Your Honor, having been engaged
3 in an oral gift of real estate case in Kendall County
4 for the best part of the last two years revolving around
5 a supposed 1500 acre gift of a ranch, I can state
6 categorically that I have yet to see one case dealing
7 with an oral gift of real estate that equates that cause
8 of action to promissory estoppel. They are two
9 different things. And taking issue with counsel's
10 suggestion of what 91(a) does and does not permit,
11 91(a)(5) is titled effective nonsuit or amendment. The
12 Court may not rule on a motion to dismiss if at least
13 three days before the date of the hearing, the
14 respondent files a nonsuit of the challenged cause of
15 action or the movant withdraws the motion.
16 And I would suggest that the cases say that
17 an amendment that drops a cause of action -- an amended
18 petition that drops a cause of action is effective
19 nonsuit of that particular cause of action. And here
20 again --
21 THE COURT: When you say you believe the
22 cases say, which cases are you --
23 MR. SMALL: I was not prepared to present a
24 case to the Court, but I will be happy to provide that
25 authority to the Court and to Mr. Barbour because if --
23
1 I've run into case where even if you drop a defendant
2 out of the caption on a case, you have effectively
3 dropped them out of the case. So, you know, that's the
4 equivalent of a nonsuit.
5 THE COURT: And so I'm going to ping-pong
6 back to Mr. Barbour.
7 Mr. Barbour, would you agree or disagree
8 that by dropping a cause of action that that is the
9 effect of a nonsuit and so -- which is the -- then would
10 fall within the realm of subsection A?
11 MR. BARBOUR: I would not, Your Honor. You
12 know, Rule 162 specifically provides for nonsuits to
13 occur and there's a nonsuit pleading a plaintiff has to
14 file or a claimant has to file obviously to nonsuit that
15 claim. And under Texas' notice pleading standards, you
16 know, headings frankly are irrelevant to a plaintiff's
17 claim anyway. You know, it's the content of the
18 pleading that we're looking at. So whether a plaintiff
19 styles her claim as promissory estoppel or oral gift or
20 whatever the case may be, the underlying claim itself,
21 you know, does not change in light of that.
22 So I think if the framers of Rule 91(a)
23 wanted to allow for the, you know, the amendment of the
24 pleading to withdraw that cause of action, they would
25 have provided for that, respectfully, Your Honor. They
24
1 did not. They specifically required a nonsuit, which is
2 a very clear delineated bright-line action. You're
3 either forgoing the claim voluntarily and nonsuiting it
4 or, you know, an amendment may or may not, you know,
5 we're left in this gray area. And plaintiff having not
6 followed that very clear procedure to specifically and
7 affirmatively disallow the promissory estoppel claim by
8 nonsuiting it means that, you know, it's still there
9 intertwined with this oral gift claim as conceded in her
10 response to the motion to dismiss.
11 THE COURT: Thank you, Mr. Barbour.
12 And before we go any further, Mr. Small,
13 and right now the Court is of the mindset that I really
14 would like case law, but did we find within the
15 transcript from March 18th the portion where the
16 argument that was made this morning was in fact made on
17 March 18th?
18 MR. SMALL: Yes, ma'am. It was Page 11
19 lines 10 and 11, not page 6.
20 MS. BROWN: Apologize for that, Your Honor.
21 THE COURT: It's okay. Page 11, lines --
22 MR. SMALL: Page 11, lines 10 and 11 are
23 the most succinct place I think.
24 (Short pause.)
25 THE COURT: Mr. Barbour, would you like to
25
1 respond at this time?
2 MR. BARBOUR: I would, Your Honor. As I
3 read lines -- page 11, lines 10 and 11, you know,
4 there's -- they have not objected to our current
5 pleading. I see that. I don't see any argument there
6 that the motion to dismiss is defective or can't proceed
7 based on its current content whatsoever. They were an
8 affirmative duty. If they're wanting to argue that the
9 quote, unquote, contents of the motion as provided under
10 Rule 91(a)(2) must specifically address it and that it's
11 insufficient, that's not at all spelled out there, Your
12 Honor. And even if they did, they never asked the Court
13 for a ruling on that motion at that time and it wasn't
14 raised, you know, as a formal objection. It's an aside
15 that doesn't at all raise these issues for the Court's
16 review.
17 And so I would both argue that it's not a
18 proper objection whatsoever and it certainly was not
19 preserved at that point to be raised in the motion for
20 new trial. So I don't think they exhausted their
21 burdens at all.
22 THE COURT: Thank you, Mr. Barbour.
23 Mr. Small, I'm going to let you hopefully
24 tie up any loose ends at this time.
25 MR. SMALL: I would.
26
1 The last thing. And counsel appear to be
2 attempting to tag Ms. Brown with some kind of admission
3 that promissory estoppel and oral gift of real estate
4 are one and the same, but the fact of the matter is that
5 91(a) explicitly states that this is a ruling only on
6 the pleadings. And the pleadings say what the pleadings
7 say. No evidence, no argument of counsel, no nothing.
8 It's the pleadings and the pleadings alone.
9 And we would ask that the Court deny their
10 91(a) motion to dismiss. Thank you.
11 THE COURT: Thank you, Mr. Small.
12 So what we're going to do is we're going to
13 allow Mr. Small to submit by e-mail and only for this
14 purpose, and CC Mr. Barbour, his two cases on the issue
15 of 91(a) and whether dropping a cause of action in fact
16 falls into the realm that would permit the argument that
17 was made today. Only that case. And he's going to get
18 it to me before noon. Yes? Yes. And that way
19 Mr. Barbour -- I don't know if you're doing anything
20 before 2:00 today or not. I really would -- I want to
21 have some finality one way or another. And I want to
22 let you guys know before 5:00 if at all possible. So if
23 you would like that, then Mr. Small can get it to me
24 before noon, and then you can have until what time
25 afternoon to respond, Mr. Barbour?
27
1 MR. BARBOUR: You said 2:00, Your Honor,
2 that would be fine by me.
3 THE COURT: Okay. So 2:00 and that way --
4 so that would be wonderful. If you get it before
5 then -- I have lunch between 12:00 and 1:30 and I don't
6 have a judges' meeting at lunch so -- just so you know
7 the Court's schedule. But with that, I appreciate your
8 arguments. I appreciate your early morning rise in
9 coming to the 57th this morning. And y'all are excused.
10 Thank you very much.
11 (Proceeding concluded.)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
28
1 STATE OF TEXAS
2 COUNTY OF BEXAR
3
4 I, Mary Martinez, Certified Court Reporter in and
5 for Bexar County, State of Texas, do hereby certify that
6 the above and foregoing contains a true and correct
7 transcription of the proceedings requested in the
8 above-styled and numbered cause, all of which occurred
9 in open court or in chambers and were reported by me.
10 I further certify that this Reporter's Record truly
11 and correctly reflects the exhibits, if any, offered by
12 the respective parties.
13 I further certify that the total cost for the
14 preparation of this Reporter's Record is $ 216.00
15 (expedited) and was paid by Ms. Olga Brown .
16 To which I certify on this the 15th day of
17 May , 2015.
18
19
20
21 /s/ Mary Martinez
Mary Martinez, CSR 5943
22 57th District Court
Bexar County Courthouse
23 100 Dolorosa Street
San Antonio, Texas 78205
24 Telephone: 210.335.1602
Exp: 12-31-2016
25
Appendix 21
Appendix 22
Appendix 23
Appendix 24
Appendix 25
Appendix 26
Appendix 27
Appendix 28
Appendix 29
1
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
2 TRIAL COURT CAUSE NO. 2014-CI-16674
3
CEARTH FAIRE ) IN THE DISTRICT COURT
4 )
)
5 VS. ) 150TH JUDICIAL DISTRICT
)
6 )
FMP SA MANAGEMENT GROUP, LLC, )
7 ET AL. ) BEXAR COUNTY, TEXAS
*******************************************************
8
MOTION TO PARTIALLY DISMISS
9
*******************************************************
10
11
12
13
14
15 On the 18th day of March, 2015, the following came
16 on to be heard in the above-entitled and numbered cause
17 before the Honorable Antonia Arteaga, Judge presiding,
18 held in San Antonio, Bexar County, Texas:
19 Proceedings reported by computerized stenotype
20 machine.
21
22
23
24
25
2
1 APPEARANCES
2
3 MR. JEFFREY SMALL
SBOT NO. 00793027
4 12451 Starcrest Drive, Suite 100
San Antonio, Texas 78216
5 Phone: (210) 496-0611
Appearing for Cearth Faire
6
7 MS. OLGA BROWN
SBOT NO. 03155500
8 111 Soledad Street, Suite 1725
San Antonio, Texas 78205
9 Phone: (210) 226-1550
Appearing for Cearth Faire
10
11 MR. JUSTIN J. BARBOUR
SBOT NO. 24055142
12 17806 West IH 10, Suite 400
San Antonio, Texas 78257
13 Phone: (210) 447-8033
Appearing for FMP SA Management Group, LLC,
14 et al.
15
16
17
18
19
20
21
22
23
24
25
3
1 CHRONOLOGICAL INDEX
2 VOLUME 1 OF 1
3 MARCH 18, 2015
PAGE VOL.
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Appearances.............................. 2 1
5
Court Reporter's Certificate............. 41 1
6
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4
1 P R O C E E D I N G S
2 THE COURT: 2014-CI-16674, Cearth Faire
3 versus FMP SA Management Group, LLC, et al.
4 If I could the attorneys please identify
5 themselves for the record and whom they represent. If
6 we could start on my left.
7 Good morning.
8 MR. SMALL: Good morning, Your Honor. Jeff
9 Small for Cearth Faire and -- with Olga Brown.
10 THE COURT: Good morning, Ms. Brown.
11 MS. BROWN: Good morning, Your Honor.
12 THE COURT: And who else is seated at your
13 table?
14 MR. SMALL: This is Ms. Faire.
15 MS. BROWN: The plaintiff.
16 THE COURT: Thank you.
17 Good morning, counsel.
18 MR. BARBOUR: Good morning, Your Honor.
19 Justin Barbour for defendants, along with Robert Ray.
20 Individual defendant Peter Donbavand is with us as well
21 today.
22 THE COURT: I'm sorry, which one?
23 MR. BARBOUR: Individual defendant Peter
24 Donbavand.
25 THE COURT: Peter Donbavand?
5
1 MR. BARBOUR: Yes, Your Honor.
2 THE COURT: Okay. Thank you.
3 And with that, you're here on your motion
4 to partially dismiss, is that correct?
5 MR. BARBOUR: That's correct, Your Honor.
6 THE COURT: I've read your pleadings. If
7 you would like to begin --
8 MR. BARBOUR: Yes, Your Honor.
9 THE COURT: -- go ahead.
10 MR. BARBOUR: Would you prefer we stand or
11 sit?
12 THE COURT: When you're arguing in court,
13 you should stand.
14 MR. BARBOUR: Yes, Your Honor.
15 Your Honor, if you had the opportunity to
16 read our pleadings, I think we can be a little more
17 efficient in our argument.
18 We are here arguing that three of
19 plaintiff's claims -- three of the four claims in this
20 matter should be dismissed, Your Honor.
21 The first claim we're moving to dismiss is
22 a claim for promissory estoppel wherein plaintiff seeks
23 to essentially compel defendants to honor what she says
24 was an oral promise to convey ownership in a home to her
25 later in time.
6
1 The second claim that we're seeking to
2 dismiss, Your Honor, is a claim for quote, unquote, oral
3 gifts, pertaining to that same home wherein plaintiff
4 alleges that defendants promised to orally gift a home
5 to her.
6 The third claim we're seeking to dismiss is
7 a civil conspiracy claim, Your Honor, wherein plaintiff
8 alleges that defendants somehow conspired to deny her
9 the gift of the home at issue in those first two claims.
10 And her final claim, Your Honor, is a
11 Chapter 21 claim for sexual harassment, which defendants
12 are not seeking to dismiss today under Rule 91a.
13 If Your Honor -- if it would help Your
14 Honor's following of my argument, in the front pocket of
15 our binder, Your Honor --
16 THE COURT: I got it.
17 MR. BARBOUR: Yes, Your Honor.
18 THE COURT: You have it too, right? Y'all
19 have the same thing, the --
20 MR. SMALL: Yes, ma'am.
21 MR. BARBOUR: On the fourth slide of that
22 handout, Your Honor, we got a brief -- a little cite to
23 a case which briefly outlines an overview of the statute
24 of frauds, which Your Honor knows is at Section 2601 of
25 the Business and Commerce Code and which provides that
7
1 claims pertaining to ownership of real property or a
2 home both must be in writing and must -- and at the
3 agreement or promise conveying ownership to that
4 property must be signed by the individual allegedly
5 transferring ownership of the property.
6 Quite simply, Your Honor, insofar as
7 plaintiff's first two claims seek to compel a transfer
8 of ownership of the property, she's essentially asking
9 the Court to look to just this oral representation, this
10 oral argument, or this oral promise made by defendant
11 Jones and to basically conclude that she stated a claim
12 for relief based solely upon this oral promise. And as
13 Your Honor knows, exceptions to the statute of frauds
14 are exceptionally disfavored even in the Rule 91, any
15 context. And, of course, as noted, Texas courts have
16 uniformly looked with disfavor on litigants seeking to
17 bypass the statute of frauds by pleading other causes of
18 action.
19 So getting into the argument proper, Your
20 Honor, with regard to plaintiff's promissory estoppel
21 claim, plaintiff's current petition is her fourth
22 amended petition so her fifth petition since this matter
23 was filed I believe in early November of last year, Your
24 Honor. Plaintiff has alleged this promissory estoppel
25 claim which alleges that individual defendant Jones made
8
1 a promise during plaintiff's employment with defendant
2 that at some point in the future he would buy and convey
3 title to a home to her. In our motion to dismiss
4 proper, Your Honor, defendants argued that under the
5 law, a promissory estoppel claim can only survive the
6 statute of frauds if plaintiff specifically alleges that
7 the promise at issue isn't just to convey title to a
8 home, but that the plaintiff alleges that the defendant
9 and the individual against whom the promissory estoppel
10 claim is alleged promises to convey title to the home
11 specifically by promising to execute a written contract
12 or a written agreement that would itself suffice to
13 satisfy the statute of frauds.
14 A simple reading of plaintiff's fourth
15 amended petition, Your Honor, demonstrates that no such
16 allegations are at issue in this matter. Plaintiff
17 hasn't alleged whatsoever that defendant Jones promised
18 to execute a specific ownership agreement, a sale
19 agreement, a deed, anything that would convey title to
20 the property to the home to her. And moreover, Your
21 Honor, specifically going back to the Gaubert decision
22 cited on our slide and in our brief, plaintiff has
23 specifically not alleged that defendant Jones promised
24 to sign a written agreement that itself complied with
25 the statute of frauds. Instead, Your Honor, it would
9
1 appear that plaintiff has abandoned this promissory
2 estoppel claim since there's no substantive argument
3 given on it with -- inside of her response brief itself.
4 And instead there are only vague allegations along these
5 lines within the fourth amended petition.
6 So because plaintiff's allegations, even
7 accepted as true under Rule 91a, Your Honor, would not
8 entitle her to relief sought because she's not alleged
9 that defendant Jones promised to execute an agreement to
10 convey title to the property that -- it satisfied the
11 statute of frauds, we respectfully ask that plaintiff's
12 promissory estoppel claim be dismissed under Rule 91a.
13 THE COURT: Mr. Barbour?
14 MR. BARBOUR: Yes, Your Honor.
15 THE CURT: I like to ping-pong arguments,
16 i.e., you've made your argument on the promissory
17 estoppel issues. At this time, I'd like to turn it
18 over --
19 MR. BARBOUR: Yes, Your Honor.
20 THE COURT: -- to opposing counsel if you
21 believe that your promissory estoppel argument doesn't
22 go hand in hand with oral gift. Are we going to be
23 getting into that? Do you believe your arguments bleed
24 over? Or do you believe that we can divide the
25 arguments as such on each one?
10
1 MR. BARBOUR: I believe there is overlap,
2 but I think we can differentiate them especially if it
3 helps the Court's review of the issues, Your Honor.
4 THE COURT: Does it help your presentation
5 to go on to the second and then ping pong?
6 MR. BARBOUR: Not necessarily, Your Honor,
7 no, so we can ping pong arguments, yes.
8 THE COURT: Okay. Your serve.
9 MR. SMALL: Your Honor, Jeff Small for
10 Cearth Faire.
11 THE COURT: May I just add for the record
12 how happy I am to see Mr. Small. He's one of my
13 favorite attorneys. Let me just give you full
14 disclosure. I like him a lot. Just so you know. And
15 Ms. Brown.
16 And, Mr. Barbour, I don't know you well
17 enough, but I really do like your associate. I just
18 have to say.
19 Mr. Small, good morning.
20 MR. SMALL: Good morning, Judge.
21 Can I fill them in on the rest of the
22 details?
23 We were successful in Judge Arteaga's court
24 on a significant judgment some time back and --
25 THE COURT: We spent some time together in
11
1 court.
2 MR. SMALL: Good long time.
3 Your Honor, I need to back up just a little
4 bit prior to the promissory estoppel argument because at
5 its face, 91a is an argument simply on the pleadings.
6 The rule itself states that no evidence is taken or
7 considered in whether we dismiss under 91a or not.
8 And, frankly, Judge, opposing counsel has
9 not objected to our current pleading. They filed their
10 91a motion to dismiss. We amended. And they have not
11 objected to our current pleading.
12 That said, promissory estoppel is not in
13 our fourth amended pleading, but even that being the
14 case, I would dispute Mr. Barbour's characterization of
15 what our pleadings do and do not include. We expressly
16 contend that an oral promise was made to Ms. Faire to
17 convey this property to her. And the inference from
18 that is that Mr. Jones was going to prepare a deed in --
19 to Ms. Faire on this house. So that knocks the
20 underpinnings out from underneath counsel's promissory
21 estoppel argument.
22 But more importantly, the basis of an oral
23 gift of real estate, which is an exception to the
24 statute of frauds, is that a promise has been made
25 orally. And the elements of an oral gift of real
12
1 estate, with which I'm intimately familiar after having
2 spent two weeks in trial in Junction on this very issue
3 on a ranch, is a present gift, permanent improvements,
4 and possession of that gift. Now, here we don't have to
5 get into the details. As a matter of fact, I would
6 suggest that the Court is precluded from getting into
7 the details anything beyond reading what our pleading
8 says.
9 If there is a stated cause of action, oral
10 gift of real estate, and the facts that are pled could
11 be believed by a reasonable person, the Court's
12 consideration of 91a motion is over.
13 If the Court is familiar with a 12(b)(6)
14 motion in federal court, 91a -- there's some dispute
15 about, you know, does it match up exactly with a
16 12(b)(6) or doesn't it. And my conclusion is that it's
17 probably a little bit different, but a 12(b)(6) motion
18 is you haven't stated a cause of action.
19 The cases that talk about 91a in Texas are
20 such that a 91a dismissal has been granted in a case
21 where there was no immunity and no matter how they
22 replead, the plaintiff could not win because the
23 defendant was immune. And so the only two things that
24 the Court looks at here is, is there a cause of action?
25 And we've pled three: Oral gift of real estate, civil
13
1 conspiracy, and quid pro quo sexual harassment. And are
2 those stated causes of action? And, secondly, are the
3 facts that are pled prima facie proof of those causes of
4 actions? And if the answer to those questions are yes,
5 it's game over; 91a motion has to be dismissed.
6 THE COURT: So, Mr. Barbour, what I'm
7 understanding from Mr. Small is he's not responding to
8 your argument on promissory estoppel because there is no
9 argument in that their fourth amended pleading doesn't
10 include promissory estoppel.
11 Is that correct, Mr. Small?
12 MR. SMALL: Yes, ma'am.
13 MR. BARBOUR: Yes, Your Honor. I mean,
14 Rule 91a sets out pretty specific procedures if a party
15 wishes to withdraw a claim that is challenged within the
16 motion to dismiss itself. And it specifically requires
17 a party to affirmatively nonsuit the challenged claim if
18 they wish to drop it. And so from my perspective if a
19 claim has been nonsuited expressly and under Texas'
20 liberal pleadings standards, there's still allegation
21 that a promise was made and that Ms. Faire, by her
22 perspective, relied to her detriment on that promise.
23 THE COURT: Mr. Small, are you formally
24 dismissing the promissory estoppel claim?
25 MR. SMALL: We are, Your Honor, because our
14
1 claim is --
2 THE COURT: Is that yes?
3 MR. SMALL: -- is wrapped up in the oral
4 gift of real estate.
5 THE COURT: He stated on the record that
6 they are formally dismissing promissory estoppel. Is
7 there anything more you need on that?
8 MR. BARBOUR: Not on that one, Your Honor.
9 No, Your Honor.
10 THE COURT: Then let's move forward to oral
11 gift and civil conspiracy.
12 MR. BARBOUR: Yes, Your Honor. As to I
13 think some of the prima facie elements of a claim for
14 oral gift of real estate under Texas law. And as Your
15 Honor is aware again, an oral gift is going to be
16 subject to the statute of frauds and therefore would be
17 disfavored under Texas law.
18 To establish this prima facie gift of oral
19 real estate, its survival of 91a motion to dismiss,
20 Ms. Faire needs to allege that defendants made what the
21 law calls a gift in praesenti, a present gift; at the
22 time that the gift is made that she then took possession
23 under the gift by the donee with the donor's consent --
24 meaning in this case Ms. Faire took possession of that
25 home because of defendant Jones' gift and that she then
15
1 made permanent and valuable improvements to the
2 property.
3 In this case, Your Honor, we allege -- and
4 I agree with Mr. Small that Rule 91a requires plaintiff
5 to allege a viable cause of action. And Rule 91a
6 further requires Ms. Faire to affirmatively allege
7 claims that if accepted as true just based on the four
8 corners of her pleadings would establish a claim for
9 relief.
10 So I agree, frankly, Your Honor for putting
11 evidence in front of you I think that would be favorable
12 to us. But I understand that today we're limited just
13 to the four corners of her pleading.
14 If we go to the next slide after the
15 elements of the oral gift claim, Your Honor, the one
16 that begins with Jones did not own a home. This
17 includes a handful of selections from Ms. Faire's own
18 pleading, her fourth amended petition, which in
19 defendants' perspective affirmatively demonstrate that
20 she's precluded as a matter of law from establishing the
21 three elements of a gift of oral real estate.
22 Paragraph 13 of her fourth amended
23 petition, Ms. Faire alleges defendant Jones negotiated
24 with defendant Jason Kemp, whose wife owned a residence.
25 Defendant Jones then instructed defendant Donbavand to
16
1 prepared the necessary documents so he, Jones, could
2 purchase the residence for plaintiff.
3 Plaintiff is admitting that as of this
4 point in time right here, Mr. Jones did not own the
5 property.
6 Dropping down to paragraph 17 of the fourth
7 amended petition. Plaintiff herself alleges while
8 defendant Donbavand was completing the necessary
9 documents -- those are the documents by which Mr. Jones
10 himself can take ownership of the property -- defendant
11 Jones requested the plaintiff move into the house,
12 orally gifting her the house.
13 And she took possession of that -- by
14 plaintiff's own allegations, Ms. Faire took possession
15 of this house -- this house on Timber Place Road before
16 the documents were completed by which Mr. Jones could
17 take ownership. She's admitting that Mr. Jones didn't
18 own the house when she took ownership of the property.
19 And as we show, Your Honor, at most
20 defendant Jones intended a future gift of this property
21 by plaintiff's own admissions.
22 Paragraph 25, Ms. Faire alleges defendant
23 Jones promised to buy a home and gift it to plaintiff
24 upon their return to San Antonio.
25 That's a future -- a promise of a future
17
1 gift.
2 At paragraph 28, plaintiff alleges it was
3 reasonable for plaintiff to rely on defendant Jones'
4 promise of an oral gift of real estate. And a promise
5 of oral gift of real estate, Your Honor, respectfully,
6 is not a present gift as required to state a prima facie
7 claim of oral gift of real estate.
8 And on the next slide, Your Honor, there's
9 some pertinent cases here, especially ones from the
10 Fourth Court, which specifically address situations like
11 this in which the courts distinguish a future promise of
12 possession and ownership of a home from a present gift
13 as required to state a claim for oral gift.
14 The Thompson v Dart decision, Your Honor,
15 the Fourth Court said to be a gift in praesenti, the
16 donor must, at the time he makes -- at the time the
17 donor makes the gift intend an immediate divestiture of
18 the rights and ownership out of himself, and a
19 consequent immediate vesting of such rights in the
20 donee.
21 The El Paso Court of Appeals agreed with
22 that in the Flores decision wherein it said that to be a
23 present gift, the owner has to release all dominion and
24 control over the property.
25 And the Woodworth decision at the very
18
1 bottom discussing the gift general, Your Honor,
2 holds that a gift may generally not be made to take
3 effect in the future since that future promise is
4 without consideration.
5 And the last slide in the section, Your
6 Honor, quite simply, we agree, at this point in the
7 proceeding we can only look at plaintiff's pleadings. I
8 readily admit that. But even looking solely at her
9 pleadings, Ms. Faire admits that at the time she took
10 ownership of the house and at the time Mr. Jones
11 promised to gift her this house allegedly, he didn't own
12 the property. Someone else owned the property when she
13 took ownership.
14 Her prior petitions have alleged, you know,
15 accurately that she even signed a lease with the
16 then-owner of that house. That has been removed from
17 the fourth amended petition at this point, Your Honor.
18 But regardless, even looking at the fourth amended
19 petition, she admits that there was no present gift of
20 the property from Mr. Jones; that he instead intended a
21 future gift; and by the time he took ownership of the
22 house after her termination of employment with defendant
23 FMP, she has been terminated. She alleges that she's
24 suffering retaliation at that point. And at that point,
25 the promise of a gift had been rescinded. And so by the
19
1 time a gift could have become effective when Mr. Jones
2 took ownership of the house, she alleges that he had
3 already decided not to gift it. So there's no gift at
4 all and there's certainly not a present gift. And she
5 didn't take ownership under that gift as required to
6 state a prima facie claim for oral gift, Your Honor.
7 THE COURT: Thank you.
8 MR. SMALL: Your Honor, there's no
9 requirement that he own the property at question in
10 order to intend to make a gift.
11 THE COURT: What about Thompson v Dart
12 where it states that to be a gift in praesenti, the
13 donor must at the time he makes it --
14 MR. SMALL: Sure. It speaks of intent
15 there. It doesn't -- it doesn't talk anything about the
16 mechanics of actually conveying the property to her at
17 that time. It's talking about his intent at the time.
18 And so the -- but, you know, going back, I'll draw the
19 Court back to the basics of 91a. And the question is:
20 Could a reasonable person from the facts that we have
21 pled believe that a gift was made, that Ms. Faire made
22 permanent improvements -- which we explicitly pled in
23 paragraph 18 -- and that she took possession of the
24 house, not ownership but possession, in concert with
25 this intended divestiture on her behalf?
20
1 Now, were there mechanics and logistics
2 that had to be accomplished in order to effectuate the
3 gift? Most certainly. But that does not change the
4 fact that there's a prima facie statement here of a
5 cause of action, that's one. And then the second thing
6 is -- the question is: Could somebody reasonably
7 believe from the facts pled that we have a present gift?
8 And the answer to that is clearly yes.
9 They don't dispute that there's a cause of
10 action pled, so, you know, how deep do we get into the
11 facts?
12 And, you know, if there's basically any
13 fact issue, you know, that's maybe a cause for a summary
14 judgment motion, but it's not cause to prevent Ms. Faire
15 from getting into court in the first place.
16 THE COURT: So you're saying even if the
17 defendant didn't own the property, that he allegedly
18 promised to --
19 MR. SMALL: The intention was there, Your
20 Honor.
21 THE COURT: And he did not have to have
22 current ownership of said property?
23 MR. SMALL: I don't believe that that's a
24 part of the oral gift. What, you know, even their case
25 talks about is an intention of immediate divestiture.
21
1 Well, you know, he's -- mechanically he has to acquire
2 the house.
3 And by the way, the fellow that owned the
4 house at the time is an employee and close associate of
5 Mr. Jones. So it's not like this is some, you know,
6 speculative-something-or-another.
7 THE COURT: Well, but it goes on to say,
8 intent and immediate divestiture of the rights of
9 ownership out of himself and a consequent immediate
10 vesting of such rights in the donee.
11 MR. SMALL: Sure. And I agree. But, you
12 know, my point is -- there's no question that we've
13 covered the legal aspect of the statement of a case.
14 The question is have we covered the factual aspect.
15 And the factual pleadings is -- the
16 question is could any reasonable person believe our
17 facts constitute an oral gift?
18 THE COURT: And your facts indicate that
19 the defendant was an owner?
20 MR. SMALL: The facts as pled here say that
21 he has to accomplish the purchase and the conveyance to
22 her, yes, ma'am.
23 THE COURT: But they don't indicate that he
24 is an owner?
25 MR. SMALL: Not that he is the current
22
1 owner of the house, no, ma'am.
2 THE COURT: And you believe it doesn't
3 matter because he does not have to be a current owner?
4 MR. SMALL: Not in order to cover the
5 elements of an oral gift, no, ma'am.
6 THE COURT: Despite the Thompson-Dart case
7 or -- let's look at Flores versus Flores, which I know
8 is out of El Paso, but to be a gift in praesenti, the
9 owner must release all dominion and control over the
10 property. And it says the owner must release all
11 dominion and control over the property.
12 MR. SMALL: It doesn't say that.
13 THE COURT: Does it not?
14 MR. SMALL: No.
15 THE COURT: Okay.
16 MR. SMALL: The cases that we've dealt
17 with -- and, again, I'll harken back to my November
18 experience in Junction -- they talk about releasing
19 dominion and control, and -- but it's what was the
20 giver's intent at the time he made the gift. Now, I can
21 intend to give you 30 acres out in Leon Springs that I
22 don't own because I'm going to acquire it this
23 afternoon. And I release all dominion and control over
24 it to you, but I have to go through the logistics of
25 buying it, getting the deed, deeding it to you. And
23
1 it's the same thing here.
2 The question is simply: Are there facts
3 here from which a reasonable person could believe that a
4 present gift was made to Ms. Fair?
5 And you're not going to find anyplace where
6 it says owner.
7 THE COURT: Except that Flores v Flores
8 according to the excerpt that Mr. Barbour has given to
9 the Court --
10 MR. SMALL: Well, in that case it says
11 owner, but, you know, you don't find that as a
12 requirement. The assumption in most of these cases, I
13 will grant you, is that it's a present owner that is
14 making a gift, but that's not one of the three elements.
15 THE COURT: Well, isn't one of the elements
16 that defendant's gift is made -- being made in the
17 present?
18 MR. SMALL: Yes.
19 THE COURT: Okay. How can it be -- I don't
20 know where we're missing the connection here, but how
21 can it be made in the present when the person making
22 said gift presently doesn't own said gift?
23 MR. SMALL: Just as I indicated. I am
24 accomplishing the effectuation of that gift this
25 afternoon, but I make that gift to you right at this
24
1 minute.
2 THE COURT: But how is that not to take
3 effect in the future?
4 MR. SMALL: I think it's the difference
5 between, you know, 20 years from now, which was the case
6 up in Junction, you know, I'll give you the property
7 when I die over against I'll give you the property this
8 afternoon. That's today. That's present.
9 THE COURT: And do you have any other case
10 law to back you up, Mr. Small?
11 MR. SMALL: I do not.
12 THE COURT: Okay. Let me --
13 MR. SMALL: The case law, Your Honor, is --
14 you know, I don't dispute that the language is there
15 that says owner, et cetera, et cetera, but not all of
16 the cases use that phraseology and none of the cases
17 make present ownership a qualification for a present
18 gift.
19 THE COURT: Thank you.
20 On the same issue, would you like to
21 respond?
22 MR. BARBOUR: Your Honor, the Thompson v
23 Dart case and both the Thompson case and the Flores v
24 Flores case are attached at the back tab of plaintiff's
25 binder or --
25
1 THE COURT: You read my mind.
2 MR. BARBOUR: -- excuse me, movant's binder,
3 Your Honor.
4 THE COURT: Go ahead.
5 MR. BARBOUR: The Thompson v Dart case
6 includes a provision that, you know, to be a gift in
7 praesenti, which is -- I think Mr. Small would agree --
8 a prima facie element to establish this claim.
9 Expanding on that, the courts have said that that gift
10 in praesenti is one in which the donor must at the time
11 he makes it intend to divest himself of ownership of the
12 property.
13 The Thompson v Dart case continues that at
14 the time the gift is made, the donee's possession must
15 be in the nature of an owner's right to control. That
16 we can't take a gift of property subject to a
17 non-ownership interest. That if you are going to claim
18 a gift that means that at the time the gift is made,
19 immediately you take possession of that property. I
20 can't tell you, Your Honor, that five minutes from now
21 I'm planning to gift you a parcel of real estate because
22 in the intervening five minutes, various things may
23 happen. The gift can't take effect in the future. And
24 there's no consideration to bind that promise.
25 And specifically bringing it back to the
26
1 facts of this case as alleged in plaintiff's pleadings,
2 Your Honor, she alleges that the promise to convey title
3 to the real estate happened I think in late July, early
4 August 2014. She takes ownership allegedly subject to
5 that gift, but Mr. Jones doesn't take ownership of the
6 home until after she's terminated well into September
7 2014. And that's the intervening period of time, Your
8 Honor, that breaks it up and it renders the gift not
9 being one in praesenti but one in futuro.
10 And the Flores v Flores case -- actually
11 the Thompson v Dart case specifically distinguishes the
12 concept of an in praesenti gift from one that is futuro.
13 That if there's a promise of a gift in futuro, that
14 that, by the very allegation and in the facts pled
15 within that petition, mean the plaintiff is then
16 estopped from asserting that there was a present gift
17 because her own allegations accepted as true under rule
18 91a do not entitle her to the relief sought, which is
19 the exact text from Rule 91a itself.
20 And so it's not just a matter of, you know,
21 did she plead something that a reasonable juror,
22 somebody might think established a gift. We have to
23 construe his allegations as true and apply to the prima
24 facie elements of that claim and see whether or not she
25 establishes a prima facie claim accordingly. And
27
1 because her own pleadings, her own petition demonstrate
2 that there was no in praesenti gift whatsoever but
3 instead it was an in futuro gift, the Fourth Court in
4 the Thompson v Dart case specifically provides that
5 there is no such claim pled in this matter, Your Honor.
6 THE COURT: Thank you.
7 Do you want another moment to respond, or
8 we're going to get to the third element?
9 MR. SMALL: No, ma'am.
10 THE COURT: Okay. Go ahead with the third
11 element.
12 MR. BARBOUR: And the third element, Your
13 Honor, is that we --
14 THE COURT: I'm sorry, the next cause of
15 action.
16 MR. BARBOUR: Yes, Your Honor.
17 Originally plaintiff had pled her civil
18 conspiracy claim as a civil conspiracy to discriminate
19 and sexually harass plaintiff during her employment with
20 FMP.
21 In the fourth amended petition filed in
22 response to the motion to dismiss, plaintiff has now
23 amended that claim and instead, Your Honor, alleged that
24 it wasn't a conspiracy to discriminate against her, but
25 instead it was a conspiracy to rescind the oral gift of
28
1 real estate to her.
2 As Your Honor knows, the elements of a
3 claim for civil conspiracy -- excuse me, Your Honor --
4 are that she must establish that were two or more
5 persons, an object to be accomplished, a meeting of the
6 minds, one or more unlawful acts and damages as a
7 result. In this case, Your Honor, plaintiff is alleging
8 this conspiracy to rescind a gift of oral real estate.
9 Looking at her amended petition, Your
10 Honor, she no longer alleges any conspiracy or any acts
11 that were unlawful or overt. Instead she's alleging a
12 gift to -- a claim for conspiracy to rescind the oral
13 gift.
14 Rescission of an oral gift is not a tort
15 and it's not an unlawful conduct, Your Honor. Her oral
16 claim is more or less akin to a declaratory judgment
17 action wherein she's alleging she's the owner and the
18 title owner of this property. Defendants dispute that.
19 And then we have to come before the Court. And the
20 court adjudicates whom the proper owner of that is. But
21 she hasn't alleged, nor is there a gift or wrongful
22 denial of an oral gift of real estate. And because she
23 specifically limited her conspiracy claim just to that
24 recession of an oral gift, even accepting her
25 allegations as true, there's no longer an unlawful or
29
1 overt act. And by that -- by virtue of that, she then
2 is again estopped from asserting a prima facie case of
3 civil conspiracy under Rule 91a. And, therefore, that
4 claim should be dismissed as dictated by the four
5 corners of her own pleading, Your Honor.
6 MS. BROWN: Your Honor, may I respond to
7 the conspiracy claim?
8 And just as a matter of background,
9 Mr. Jones, as I have alleged in here, is a very powerful
10 man who dictates how business is conducted at the office
11 regardless of whether it's in the best interest of the
12 corporation or not. He asked Ms. Jones to live in the
13 Dominican Republic for over five years while she --
14 while he was holding a baby hostage -- an infant-child
15 hostage.
16 I represent to the Court the facts because
17 I represented Mr. Jones' first wife.
18 During this entire time that she was in the
19 Dominican Republic working 24/7, Mr. Jones repeatedly
20 told her, the minute I get back to the states, you're
21 going to have a home -- because she had been working,
22 like I said, 24/7 helping defend him in the divorce
23 pending here in Bexar County.
24 As a historical background, Mr. Donbavand,
25 who's present here today, is head of the real estate
30
1 portion of this corporation. Mr. Kemp and his wife own
2 this property. They -- when this case gets to court on
3 the facts and I've had an opportunity to depose the
4 different individuals who acted in their individual
5 capacity to -- not in furtherance of the corporate
6 thing, but to defraud Ms. Faire -- they would take
7 affirmative steps, Your Honor, to defraud her.
8 Some of the affirmative steps after
9 Ms. Faire believes she has a gift -- an oral gift of
10 real estate, they've taken us to JP court twice trying
11 to evict her. They're acting not in furtherance of
12 corporate business for all of these businesses that they
13 have, but they're actually knowing that Ms. Faire had
14 been fired, did not have any money, were dragging her
15 back and forth to court. The torts that they committed
16 or the fraud that they perpetrated less -- is a tort. I
17 mean, fraud is a tort.
18 For example -- I will give you an example.
19 Mr. Donbavand here said, here is a lease as a buyer's
20 lease. Mr. Jones is the buyer. In essence, you're the
21 buyer. The facts are convoluted. And I've been working
22 on this case to get the facts straightened out.
23 But going back to have we pled a fraud. We
24 have pled fraudulent acts.
25 I think simply I have to state this, Your
31
1 Honor: These individuals who worked under Mr. Jones
2 outside the course and scope of their duties
3 individually perpetrated a fraud against Ms. Faire that
4 was not limited solely to the gift of the house, but
5 them trying to prove that there had been no gift. And
6 that is a tort under state laws, Your Honor.
7 And we ask -- respectfully request that the
8 Court by denying this particular cause of action gives
9 us an opportunity to go before the trier of fact. This
10 case is set for trial November the 3rd. There's a
11 docket control -- level 3 docket control order in place.
12 And, likewise, Your Honor, if they feel
13 like we're not entitled to that, they have opportunities
14 for motion for summary judgment or special exceptions.
15 THE COURT: Ms. Brown, can you state the
16 lawful -- or unlawful act that occurred.
17 MS. BROWN: Fraud, Your Honor.
18 THE COURT: Could you be more specific?
19 MS. BROWN: Okay. The fraud is this: They
20 go along with Mr. Jones' orders, personal to Mr. Jones,
21 personal to them to participate in fraudulent acts to
22 keep Ms. Faire from having the house -- the rightful --
23 the rightful thing to house because we feel like, you
24 know, outside of this, Ms. Faire relied on Mr. Jones'
25 promise --
32
1 THE COURT: I'm sorry, what were the
2 fraudulent acts?
3 MS. BROWN: The fraudulent act was
4 participation in the denial of the fact that Ms. Faire
5 did not have ownership of this house. She's been in
6 this house, Your Honor, for over six months. She's made
7 valuable improvements to this house. And she moved in
8 in reliance --
9 THE COURT: So the fraud you're saying was
10 that these codefendants indicated --
11 MS. BROWN: Have acted in numerous ways,
12 Your Honor.
13 THE COURT: Well, the one that you stated
14 is that these defendants denied that your client had
15 ownership?
16 MS. BROWN: Yes, Your Honor.
17 THE COURT: And by denying that your client
18 had ownership, they committed fraud?
19 MS. BROWN: Exactly, Your Honor.
20 THE COURT: Your response, Mr. Barbour.
21 MR. BARBOUR: I have a couple of responses.
22 The first is, respectfully, just as we're bound by
23 plaintiff's live pleading in determining whether or not
24 the Rule 91a motion should be granted, I believe
25 plaintiff should be, as well. She's the master of her
33
1 pleadings.
2 Ms. Brown is arguing that Ms. Faire signed
3 a lease and she relied on this lease. I will represent
4 to the Court that in an attempt to evade that -- the
5 first two grounds for a 91a motion, she has removed from
6 her fourth amended petition, any allegation of that
7 lease. That's not contained anywhere within the fourth
8 amended petition itself.
9 If the Court were to look to prior
10 petitions and see the existence of that lease, that
11 would be the third amended petition, and I would
12 respectfully suggest that if Ms. Brown thinks that that
13 should be considered, then it's quite clear that when
14 Ms. Faire took possession of that Timber Place property,
15 she didn't take possession as an owner; she took
16 possession as a tenant personally to the terms of that
17 lease, which at the very least must require the
18 promissory estoppel and the oral gift claims be
19 dismissed 'cause there's no possible way by her own
20 allegations she can establish a claim as to either of
21 those.
22 More specifically as to this conspiracy
23 claim, I hear Ms. Brown saying that Ms. Faire alleges
24 that defendants have acted together, that she believes
25 she's been defrauded somehow. The fraud claim has been
34
1 dropped. There's no fraud claim within the four corners
2 of the fourth amended petition. I believe -- I'm 95
3 percent confident, Your Honor, that if you searched, you
4 wouldn't find the word "fraud" anywhere within that
5 petition whatsoever. There's no allegation of fraud
6 here.
7 If we look at page -- well, Count 2 of your
8 plaintiff's fourth amended petition, paragraphs 35 to
9 37, she alleges that defendants acting outside their
10 corporate duties specifically acted to rescind the oral
11 gift of real estate to plaintiff.
12 That's what she's alleging. That's the
13 conspiracy -- to rescind this oral gift of real estate.
14 Generally alleging a conspiracy to engage
15 in an act does not entitle her to relief under Rule 91a.
16 She has to show an unlawful affirmative overt act taken
17 by each of the defendants against whom this conspiracy
18 claim is alleged. Because she's simply alleging that
19 they're conspiring to rescind this oral gift, which is
20 not a tort, which is not fraudulent, which is not an
21 unlawful act, she's not established the prima facie
22 element of the claim within the four pleadings of her
23 own petition. And, therefore, Your Honor, we would
24 suggest and respectfully request that the conspiracy
25 claim be dismissed under Rule 91a.
35
1 MR. SMALL: Your Honor, the standard by
2 which the pleadings are judged here and everywhere in
3 Texas is fair notice. And we don't have to use the word
4 "fraud" in here to have alleged an overt unlawful act to
5 support a conspiracy claim. We don't have to use magic
6 words.
7 The gist of this whole pleading is that
8 Mr. Jones, Mr. Donbavand, and Mr. Kemp conspired to do
9 Ms. Faire out of a gift that she was promised and which
10 she relied on in incurring moving expenses and making
11 improvements. And this was all, you know, wrapped up in
12 her working for him for an extended period of time, et
13 cetera, et cetera. And the machinations, which were
14 driven by Mr. Jones, who's the kingpin CEO of these
15 corporations -- the question again comes back to what
16 could a reasonable person believe. And if they believe
17 that she was defrauded out of a gift, whether or not the
18 Court believes that she was given an oral gift of real
19 estate, the conspiracy claim still stands.
20 THE COURT: And can you direct in your
21 fourth amended petition as to the specific language that
22 you're relying upon wherein if read on its face would
23 prove your cause of action.
24 MR. SMALL: Well, first of all, Your Honor,
25 I would take issue with the Court's use of the word
36
1 "prove," but I would direct the Court to paragraphs 11
2 through -- you know, just as a starter 11 through 24 in
3 the statement of facts that set out the course of events
4 that occurred here.
5 MR. BARBOUR: Would Your Honor entertain a
6 response to that or --
7 THE COURT: In just a moment.
8 MR. BARBOUR: Yes, Your Honor.
9 (Short pause.)
10 THE COURT: We're back on the record.
11 Mr. Small, help me out here. Are you
12 saying that the fraud is within -- begins paragraph 11.
13 Specifically, what I am reading in a nutshell is that
14 the codefendants are employed by Mr. Jones and were
15 following his directions. And you believe that
16 according to the -- there's -- I'm not sure how they
17 defrauded her. I agree that according to the pleadings,
18 they state he followed his directive -- direction that
19 they were somehow involved in trying to evict her or
20 somehow involved in the repossession of a vehicle or so,
21 but I don't know how that constitutes an unlawful act on
22 its face.
23 MR. SMALL: Well, first of all, Your Honor,
24 it's -- there -- it not only says facts but inferences
25 therefrom, but, you know, here she's been given a gift,
37
1 but, you know, Donbavand and Kemp are working with Jones
2 to throw her out of a house that's supposedly hers.
3 And, you know, Your Honor, it's -- you know, does it
4 say, you know, one, two, three, this is specifically
5 what, you know, Mr. Kemp did or what Mr. Donbavand did,
6 you know, on "X" day? No, it does not. But for notice
7 pleadings, you don't have to do that.
8 And my point is here and the oral gift
9 is -- we get over that very minimal hump.
10 THE COURT: Mr. Barbour, I'll allow a
11 response -- a short one as we are way over our time.
12 MR. BARBOUR: Yes, Your Honor.
13 THE COURT: I'd like to hear your response.
14 MR. BARBOUR: Rather briefly, Your Honor,
15 you are -- plaintiff is entitled to reasonable
16 inferences from her pleadings. Rule 91a by its terms
17 expressly requires dismissal of cause of action for no
18 basis in fact if the allegations within the four corners
19 of the petition taken as true together with the
20 inferences reasonably drawn from them don't entitle her
21 to relief.
22 Mr. Small -- Ms. Faire is alleging that
23 this conspiracy was to deny her this gift of property.
24 Accepting that as true -- and even all reasonable
25 inferences from that -- there's no unlawful act
38
1 committed in furtherance of this conspiracy within the
2 four corners of that petition. It's a title -- contest
3 title in the property.
4 In the absence of any reasonable inference
5 showing an unlawful overt act committed in furtherance
6 of this conspiracy, Rule 91a dictates if there's no
7 cause of action or there's no basis in law for this
8 cause of action and -- it ought to be dismissed, Your
9 Honor.
10 THE COURT: On a scale of one to ten, how
11 strongly do you feel about that if challenged on appeal,
12 Mr. Barbour?
13 MR. BARBOUR: Based on the four corners of
14 the fourth amended petition, I would give it an eight I
15 think, Your Honor.
16 THE COURT: Ms. Brown, you know how much I
17 respect you and Mr. Small, as well --
18 MS. BROWN: May I just address the Court
19 just very briefly, Your Honor? And give the Court a
20 historical thing. The Court must be informed that all
21 of the records concerning how they manipulate and try to
22 defraud her, all of the records are in the hands of the
23 defendants. So we've given them fair notice. We cannot
24 give them the specific details that Mr. Barbour is
25 requiring because we have not had access to all of
39
1 these.
2 We've been before Judge Sakai, who has
3 denied their motion for protective order and compelled
4 them to give us the information. And like basically
5 employment cases or other tort cases where all of the
6 information is in the hands of that defendant, it is
7 very difficult for the plaintiff to say, this is how you
8 defrauded me, you changed title to the property back and
9 forth so that we can (sic) address the issue of current
10 ownership or --
11 They've done numerous things, Your Honor,
12 that we cannot in all reasonables (phonetic) tell you
13 this is what they did because we don't have all of the
14 evidence that we requested.
15 This case was filed in October of 2014. We
16 were very diligent in sending out requests for
17 depositions, requests for identification of documents.
18 We have done our best.
19 And, Your Honor, I think all that is
20 required of us at this time is fair notice. And we're
21 saying in our pleadings, you have acted in a manner that
22 amounts to defrauding Ms. Faire of an oral gift of real
23 estate.
24 At this time, Your Honor, I wish I could
25 offer the Court more because I know that this Court
40
1 listens to everything that we want to bring, but our
2 hands are tied. Our hands are tied because in spite of
3 our diligence in getting requests for discovery
4 immediately, requests for depositions immediately,
5 they've all been quashed. And that is why, Your Honor.
6 But the fair notice -- there's a reasonable
7 inference that this Court can make that these gentlemen
8 who held the power, who held the documents acted in an
9 unlawful way.
10 THE COURT: Thank you, Ms. Brown.
11 MS. BROWN: Thank you, Your Honor.
12 THE COURT: And the Court has absolutely no
13 doubt in the diligence of counsel and the hard work of
14 counsel, but like you, my hands are tied.
15 Your motion is granted, Mr. Barbour.
16 Please prepare the order.
17 We are adjourned.
18 (Proceeding concluded.)
19
20
21
22
23
24
25
41
1 STATE OF TEXAS
2 COUNTY OF BEXAR
3
4 I, Mary Martinez, Certified Court Reporter in and
5 for Bexar County, State of Texas, do hereby certify that
6 the above and foregoing contains a true and correct
7 transcription of the proceedings requested in the
8 above-styled and numbered cause, all of which occurred
9 in open court or in chambers and were reported by me.
10 I further certify that this Reporter's Record truly
11 and correctly reflects the exhibits, if any, offered by
12 the respective parties.
13 I further certify that the total cost for the
14 preparation of this Reporter's Record is $ 220.00
15 and was paid by Ms. Olga Brown .
16 To which I certify on this the 8th day of
17 April , 2015.
18
19
20
21 /s/ Mary Martinez
Mary Martinez, CSR 5943
22 57th District Court
Bexar County Courthouse
23 100 Dolorosa Street
San Antonio, Texas 78205
24 Telephone: 210.335.1602
Exp: 12-31-2016
25
Appendix 30
1
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
2 TRIAL COURT CAUSE NO. 2014-CI-16674
3
CEARTH FAIRE ) IN THE DISTRICT COURT
4 )
)
5 VS. ) 150TH JUDICIAL DISTRICT
)
6 )
FMP SA MANAGEMENT GROUP, LLC, )
7 ET AL. ) BEXAR COUNTY, TEXAS
*******************************************************
8
MOTION FOR NEW TRIAL
9
*******************************************************
10
11
12
13
14
15 On the 6th day of May, 2015, the following came on
16 to be heard in the above-entitled and numbered cause
17 before the Honorable Antonia Arteaga, Judge presiding,
18 held in San Antonio, Bexar County, Texas:
19 Proceedings reported by computerized stenotype
20 machine.
21
22
23
24
25
2
1 APPEARANCES
2
3 MR. JEFFREY SMALL
SBOT NO. 00793027
4 12451 Starcrest Drive, Suite 100
San Antonio, Texas 78216
5 Phone: (210) 496-0611
Appearing for Cearth Faire
6
7 MS. OLGA BROWN
SBOT NO. 03155500
8 111 Soledad Street, Suite 1725
San Antonio, Texas 78205
9 Phone: (210) 226-1550
Appearing for Cearth Faire
10
11 MR. JUSTIN J. BARBOUR
SBOT NO. 24055142
12 17806 West IH 10, Suite 400
San Antonio, Texas 78257
13 Phone: (210) 447-8033
Appearing for FMP SA Management Group, LLC,
14 et al.
15
16
17
18
19
20
21
22
23
24
25
3
1 CHRONOLOGICAL INDEX
2 VOLUME 1 OF 1
3 MARCH 18, 2015
PAGE VOL.
4
Appearances.............................. 2 1
5
Court Reporter's Certificate............. 28 1
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 P R O C E E D I N G S
2 THE COURT: 2014-CI-16674, Cearth Faire
3 versus FMP SA Management Group, LLC, DBA Food Management
4 Partners; All Jones, LLC; Allen J. Jones, individually;
5 and Peter Donbavand, individually.
6 If I could have the attorneys please
7 identify themselves for the record and whom they
8 represent beginning on my left?
9 MR. SMALL: Jeff Small for Cearth Faire.
10 THE COURT: Thank you, Mr. Small.
11 MS. BROWN: Your Honor, Olga Brown, also
12 for Cearth.
13 THE COURT: Good morning, Ms. Brown.
14 MR. BARBOUR: Good morning, Your Honor.
15 Justin Barbour for defendants.
16 THE COURT: Good morning, Mr. Barbour.
17 MR. RAY: Your Honor, I'm Robert Ray. I'm
18 not counsel of record on this matter, but I am counsel
19 of record for one of the defendants in another cause of
20 action that has bearing on this one.
21 THE COURT: Okay. So we're going to let
22 you have a seat and just hang out with us this morning.
23 MR. RAY: If you don't mind.
24 THE COURT: I don't mind at all.
25 MR. RAY: Thank you.
5
1 THE COURT: And it is currently 8:25, and
2 we are scheduled to hear a motion for a new trial. The
3 Court has granted you 60 minutes in order to present,
4 which is highly unusual in the 57th. Ordinarily our
5 motions for new trial are anywhere from 15 to
6 30 minutes, but your legal assistant is quite
7 persuasive, Ms. Brown. So we agreed to go ahead and
8 give you the full hour.
9 So with that, you have the floor. Or is it
10 going to be you or Mr. Small?
11 MS. BROWN: Your Honor, I would like to
12 make the opening, have Mr. Barbour address it, and then
13 Mr. Small kind of close it if that's all right with Your
14 Honor.
15 THE COURT: Okay. So you'd like to start
16 out and then -- well, this is what we'll -- give me the
17 reasons why you believe that I got it wrong the first
18 time. And then if you'd like to allow Mr. Small to
19 chime in -- I don't need opening, I don't necessarily
20 need closing remarks at all, but we want to get straight
21 to the meat of the matter.
22 Ms. Brown, I'll let you begin.
23 And then, Mr. Small, you can take it up.
24 And then we're going to hear from
25 Mr. Barbour. If there's any reply necessary in between,
6
1 we will direct accordingly.
2 Go ahead, Ms. Brown.
3 MS. BROWN: Thank you, Your Honor.
4 And once again, it's nothing that the Court
5 did wrong at all, but here's where I -- the reason that
6 we're asking this morning that you deny the motion on --
7 and -- reconsider and deny the motion, frankly, for
8 this, Your Honor: Because the defendants --
9 THE COURT: Let's be clear --
10 MS. BROWN: Yes.
11 THE COURT: -- there is no motion to
12 dismiss.
13 MS. BROWN: Yes.
14 THE COURT: Okay.
15 MS. BROWN: Because for the simple reason,
16 Your Honor, that the defendants did not meet the
17 requirements of 91(a). That rule has very specific
18 rules. And I would like to direct the Court's attention
19 to Rule 91(a)(2). And it addresses contents of the
20 motion. And this requirement that they did not meet
21 does not support the ruling of this Court in this way,
22 Your Honor:
23 On February 3rd, 2015, the defendants filed
24 their last pleading, and it was an amended 91(a) partial
25 motion for dismissal. Over a month later -- and it was
7
1 timely -- the petitioner filed an amended motion
2 dropping the cause of action for promissory estoppel and
3 adding oral gift of real estate.
4 Following that, Your Honor, the defendants
5 were required to do one of two things. They either had
6 to amend their motion to dismiss or to withdraw their
7 motion. They did neither. Even though in their
8 response, Your Honor -- we stated this is a new cause of
9 action that we're adding. And in all fairness we filed
10 this 10 days before the March 18th hearing that Your
11 Honor entertained.
12 Now, because they failed to meet this
13 91(a)(2) contents of the motion, the Court's ruling
14 cannot support the denial.
15 91(a) -- the granting of 91(a), Your Honor,
16 is done in three instances. And I'll be really brief.
17 One is that there's not a recognized cause
18 of action in this state. Oral gift of real estate is a
19 recognized cause of action in this state.
20 The second instance in which the motion is
21 granted is if on the facts -- the facts of -- petitioner
22 cannot gain relief. For example, if the petitioner in a
23 say auto accident pleads that the accident happened
24 15 years ago and there was no tolling statute, then on
25 its face that pleading is -- cannot bring relief to the
8
1 petitioner. In that instance the motion to dismiss is
2 granted.
3 The third one is when a petitioner attached
4 an -- a document or a affidavit, let's say an insurance
5 policy. And the insurance policy definitely does not --
6 states that there's no coverage or he's not a named
7 insurer (sic). And I've looked at all the cases, Your
8 Honor, and it's only on those three case -- those three
9 general groups of cases that a motion to dismiss is
10 granted.
11 The Court in making a legal analysis of
12 whether or not to grant the motion must do this: Do the
13 allegations of the pleading state a cause of action
14 which authorizes relief?
15 Our cause of action for oral gift of real
16 estate is a viable cause of action. It's a recognized
17 cause of action.
18 And in that case, Your Honor, because it
19 was not challenged, it was not challenged by the
20 defendant --
21 THE COURT: What specifically do you say
22 was not challenged? The cause of action on oral gift of
23 real estate?
24 MS. BROWN: That's correct, Your Honor.
25 THE COURT: Okay.
9
1 MS. BROWN: And like I said, he had to
2 amend his motion or withdraw it, one of the two. He did
3 not do that.
4 And so, Your Honor, this -- the Court does
5 not have discretion to determine whether or not the
6 contents of the motion were met or not. They either
7 were met or they were not.
8 For example, he did not challenge and state
9 specifically what his challenges were. So, therefore,
10 this Court I believe should reconsider their ruling on
11 this and deny their cause of action.
12 The same thing, Your Honor, applies for our
13 claim of conspiracy. In his third amended petition for
14 -- to dismiss or in his third motion to dismiss --
15 excuse me. Clear the record. In his second amended
16 motion to dismiss, he alleges that there's no cause of
17 action because of intra-corporate immunity.
18 I came back, Your Honor -- Mr. Small and I
19 came back and we amended our pleadings and said
20 basically the corporate officers were not acting in
21 their corporate duties. They were acting as
22 individuals.
23 Conspiracy is basically this: One or more
24 individuals getting together to commit an unlawful act.
25 And so that too, Your Honor, is not supported by the
10
1 motion.
2 In other words -- in other words, he did
3 not meet the legal requirements of the rule. And,
4 therefore, the ruling that the motion be granted cannot
5 stand.
6 And basically, Your Honor, like I said, we
7 pointed this out to the Court in the original hearing on
8 March 18th. We said he did not amend.
9 Mr. Barbour on behalf of the defendants
10 went on. And even in the response that he filed
11 yesterday after --
12 THE COURT: I'm sorry, Ms. Brown, if I can
13 interrupt just a second. You seem very clear on your
14 statements with regard to the arguments made on March
15 18th.
16 MS. BROWN: Yes.
17 THE COURT: Is there a transcript
18 available?
19 MS. BROWN: Yes, there is, Your Honor.
20 THE COURT: Okay. Thank you.
21 MS. BROWN: And I have it with you (sic)
22 and -- because the defendants allege that we didn't
23 bring it up to the attention of the Court. We did.
24 THE COURT: Okay.
25 MS. BROWN: And I have the transcript. And
11
1 it's page 6 lines 10 and 11 of the transcript.
2 THE COURT: Thank you.
3 MS. BROWN: And Mr. Small at that time also
4 informed the Court that this proceeding is basically
5 about pleadings. That the rule strictly says the Court
6 cannot entertain evidence. What happened in that
7 March 18th meeting was evidence. But this whole 91(a),
8 the new rule, is about pleadings. Did the attorneys,
9 Mr. Jeff Small and I, plead correctly oral gift of real
10 estate?
11 We did. It went unchallenged. And,
12 therefore, Your Honor, we're saying please reconsider
13 and deny their motion in its entirety.
14 THE COURT: Thank you.
15 Mr. Barbour, would you like to reply at
16 this point or would you like Mr. Small to go ahead.
17 MR. BARBOUR: I would yield to plaintiff's
18 discretion. If Mr. Small feels like he can blend in at
19 this point, I would be happy to respond after that
20 but --
21 MR. SMALL: Your Honor, I don't have a
22 whole lot to add because Ms. Brown was very succinct.
23 Just using the language of the Rule 91(a)(5) says that
24 the Court may not rule on a motion to dismiss after
25 nonsuit or amendment. So consequently the promissory
12
1 estoppel is beyond the Court's reach.
2 And similarly 91(a)(2), you know, does say
3 that -- that the pleadings must tell why -- it must
4 address each cause of action. Well, oral gift of real
5 estate was in our fifth amended petition, but it was not
6 in FMP's live 91(a) motion so consequently that too is
7 beyond the Court's reach.
8 So promissory estoppel is not in the fifth
9 amended, but yet it was addressed and ruled on. And I
10 would contend that according to the rule that promissory
11 estoppel and oral gift of real estate are both beyond
12 the Court's discretion.
13 THE COURT: Thank you.
14 Mr. Barbour.
15 MR. BARBOUR: Yes, Your Honor. I'll get to
16 the substance of I think plaintiff's argument in a
17 moment, but first Your Honor hadn't quite asked whether
18 this objection was raised at the March 18th hearing,
19 which the motion to dismiss was originally argued.
20 Ms. Brown directed us to page 6, lines 10
21 and 11 of the hearing transcript, which I think is at
22 tab 3 of the binder that Your Honor has.
23 And as I read page 6 line 3 (sic), that's
24 actually me talking just giving an overview of
25 plaintiff's sexual harassment claim, which is not at
13
1 issue in the motion to dismiss at all.
2 THE COURT: I believe it's page 6, line 10
3 and 11 that she referenced.
4 MR. BARBOUR: 10 and 11, Your Honor, yes,
5 Your Honor, that's what I'm looking at as well. I
6 apologize if I misspoke, but that is me giving an
7 overview of plaintiff's sexual harassment claim under
8 chapter 21, which isn't a target of the motion to
9 dismiss at all. That is certainly not plaintiff raising
10 an objection as to the fact that the contents of the
11 motion aren't directed to the oral gift or amended
12 conspiracy claim.
13 So on that basis, Your Honor, there's
14 authority cited in our response indicating that the
15 parties have a duty to raise objections, to raise
16 concerns to the Court at their earliest opportunity. In
17 this case that was indisputably at the March 18th
18 hearing at which these arguments were made.
19 Plaintiff declined to raise these
20 objections at that time and instead argued the motion on
21 the merits. I don't know why that would be, but that
22 was the tactic they chose, Your Honor. So our
23 contention would be that any such arguments have been
24 waived at this point and would not be a ground to either
25 reverse the Court's decision on the motion to dismiss or
14
1 potential error on that point.
2 THE COURT: Can we pause for just a second?
3 MR. BARBOUR: Yes, Your Honor.
4 THE COURT: Ms. Brown, did you mean to
5 bring the Court's attention to a different part of your
6 transcript?
7 MS. BROWN: I will, Your Honor. I'm going
8 to have Mona look through it. I must have quoted the
9 wrong --
10 THE COURT: Okay. Just let us know when
11 you're ready.
12 Mr. Barbour, I'm going to allow you to
13 continue.
14 MR. BARBOUR: Yes, Your Honor.
15 So that initial point aside, Your Honor,
16 next we're turning to the property-related claims where
17 Ms. Faire is in essence attempting to ask the Court at
18 trial or at some point to compel defendants to transfer
19 title to a home that she's living in currently without
20 any written agreement between the parties whatsoever
21 under the guise that there was a promise of a gift at
22 some point that this home would be transferred.
23 Ms. Brown, as I understand, is arguing that
24 this oral gift claim wasn't before the Court at the
25 March 18th hearing and therefore can't be the subject of
15
1 the motion to dismiss.
2 In my perspective, I see a few different
3 issues with her contention here. The first, Your Honor,
4 is that rule 91(a)(5)(a) clearly describes what a
5 plaintiff has to do or what a party has to do if they
6 don't wish to take a claim all the way through the
7 motion to dismiss hearing.
8 Mr. Small has suggested that a claim is
9 nonsuited or amended, that it's beyond the Court's
10 reach. With all due respect to Mr. Small, Your Honor, I
11 don't believe that's correct.
12 Rule 91(a)(5)(a) specifically says the
13 Court may not rule on a motion to dismiss if at least
14 three days before the date of the hearing the respondent
15 nonsuits the challenge cause of action or the movant
16 files a withdrawal of the motion.
17 We did not withdraw our motion, and
18 plaintiff very clearly did not file a nonsuit of her
19 claim of promissory estoppel. Meaning, Your Honor, no
20 matter where we end up, as of the March 18th hearing,
21 the promissory estoppel claim is still both before the
22 Court and also it's also subject to that motion to
23 dismiss.
24 Plaintiff is now alleging that she dropped
25 the promissory estoppel claim and instead amended this
16
1 new claim for oral gift of real estate.
2 They're not separate claims, Your Honor.
3 They are the same claim entirely. And plaintiff has
4 merely repackaged the existing claim, which has been
5 present in her petition under the guise of a promissory
6 estoppel claim since late October trying to avoid the
7 motion to dismiss through this kind of I would call
8 gamesmanship potentially, Your Honor, but certainly a
9 nonsubstantive change there.
10 It's reflected by plaintiff's pleadings,
11 there's no substantive difference between the nature of
12 the underlying allegations whatsoever between this
13 alleged promissory estoppel and the subsequent oral gift
14 claim.
15 Plaintiff's third amended petition, which
16 alleged the quote, unquote promissory estoppel claim
17 four times alleges that plaintiff was quote, unquote
18 gifted the property.
19 And then we move to the fourth petition
20 which is filed in response to the motion to dismiss.
21 And then she removes the term promissory estoppel and
22 inserts the term oral gift of real estate suggesting
23 that it's a different claim and that we then have to
24 kick this can down the road later on to another motion
25 to dismiss hearing, but that's neither warranted nor
17
1 necessary, Your Honor. It's all the same claim trying
2 to compel a transfer of property in the absence of a
3 statute of frauds.
4 And specifically to this point, Your Honor,
5 I would argue that plaintiff has conceded the fact that
6 the oral gift claim is, in fact, addressed in the Rule
7 91(a) motion to dismiss.
8 On page 2 of her response to that motion,
9 plaintiff argues, quote, by their Rule 91(a) motion,
10 defendants challenge plaintiff's claim for an oral gift
11 of real estate.
12 And then she continues on to some of the
13 merits of that.
14 But plaintiff admits in her response that
15 the oral gift claim is in fact challenged by the Rule
16 91(a) motion to dismiss. And subsequently falling back
17 from that position trying to, you know, argue the exact
18 opposite at this point, Your Honor, has no basis
19 whatsoever and she's bound to her prior pleadings, which
20 admitted which claims were in fact addressed in that
21 motion.
22 And then finally, Your Honor, I would note
23 that I respectfully take issue I think with Mr. Small's
24 interpretation and Ms. Brown's interpretation of Rule
25 91(a) which seemingly would require the parties, you
18
1 know, to constantly be amending their Rule 91(a) motion
2 to dismiss every time an amended pleading is filed in
3 response to it. That's not what the rule requires.
4 The rule requires you state the basis on
5 which there's no basis in law or no basis in fact for
6 the claim alleged.
7 Our Rule 91(a) motion contends -- properly
8 I believe -- that plaintiff's claim for a
9 property-related claim trying to compel the transfer of
10 this home is barred by the statute of frauds, that she
11 has not shown any exceptions, you know, available to
12 that claim to show that even accepting all of her
13 allegations as true, she would be able to compel the
14 transfer of that property in the absence of a written
15 agreement.
16 It doesn't matter whether you style the
17 argument as promissory estoppel, oral gift of real
18 estate, or whatever other claim plaintiff may conjure
19 later on in this litigation potentially. The statute of
20 frauds is still the reason that claim fails. That
21 defense and that argument is stated succinctly and
22 sufficiently under Rule 91(a) to articulate why
23 plaintiffs can't recover and their claim has no basis in
24 the law. And, therefore, the motion to dismiss is
25 appropriate.
19
1 THE COURT: Thank you, Mr. Barbour.
2 Give me just one second please, Mr. Small.
3 MR. SMALL: Yes, ma'am.
4 (Short pause.)
5 THE COURT: We're back on the record.
6 Mr. Barbour, you're standing. Was there
7 something more?
8 MR. BARBOUR: As to the oral gift claim,
9 Your Honor, I would finally note, none of plaintiff's
10 arguments contend that she has in fact alleged a
11 sufficient claim for this oral gift of real estate. At
12 our hearing, we discussed in detail the fact that
13 plaintiff has not shown any present gift, any immediate
14 transfer of property as necessary to state that claim.
15 So all of these technicalities of Rule 91(a) aside,
16 which I also believe are baseless, at the end of the day
17 she still has not alleged a claim that stands up to
18 scrutiny for this transfer of real estate. And,
19 therefore, Your Honor, I believe that it was, in fact,
20 appropriate for the Court to dismiss that
21 property-related claim.
22 Would the Court like me to address the
23 conspiracy claim at this time, as well?
24 THE COURT: Yes.
25 MR. BARBOUR: Yes, Your Honor.
20
1 Finally we turn to the conspiracy claim and
2 plaintiff's argument again at this point is essentially
3 that because she filed an amended petition in response
4 to the motion to dismiss, that therefore this claim was
5 somehow beyond the Court's reach and the Court could not
6 reach the merits of whether or not she had alleged that
7 conspiracy claim.
8 This is not within Rule 91(a) either, Your
9 Honor. Rule 91(a) requires that we file a motion to
10 dismiss, identify the cause of action in fact that it
11 can't go forward. It allows the plaintiff the option to
12 either respond to the motion to dismiss or to amend her
13 pleadings, which it does, but the rule does not
14 foreclose the Court's ability to rule on a motion to
15 dismiss notwithstanding that amendment, that the Court
16 has full discretion to evaluate the merits of that claim
17 and to see whether there's a basis in law or a basis in
18 fact for that claim and to move forward.
19 Plaintiff's reasoning to Rule 91(a), we
20 would indefinitely be cycling through and forever
21 amending our pleadings and amending our motions and
22 never reaching the goal of Rule 91(a), which is the
23 efficient resolution and dismissal potentially of
24 patently frivolous and baseless causes of action.
25 THE REPORTER: Would you please slow down.
21
1 MR. BARBOUR: I apologize for that. I
2 apologize.
3 So there being no requirement that we have
4 amended our Rule 91(a) motion in response to her amended
5 petition, that arguments falls flat.
6 And again, Your Honor, I would turn to the
7 merits of plaintiff's conspiracy claim. And again at
8 the March 18th hearing on the motion to dismiss,
9 plaintiff was completely unable to identify a single
10 allegation in her petition that showed an unlawful or
11 illegal act taken by any of defendants whatsoever.
12 Therefore, that claim has no basis in law under the
13 wording of Rule 91(a)(1) because her allegations even
14 taken as true would not entitle her to the relief
15 sought. Meaning if we took her petition and put it in
16 front of a jury and said everything in here is true,
17 they would not be able to render a verdict for her on
18 that conspiracy claim because there's no unlawful or
19 illegal acts alleged anywhere within that petition.
20 And so for those reasons, Your Honor, we
21 would suggest that the Court was entirely proper in
22 dismissing plaintiff's property-related claims and her
23 conspiracy claims. And respectfully I ask that the
24 Court deny the plaintiff's motion for new trial.
25 THE COURT: Thank you, Mr. Barbour.
22
1 Mr. Small, round two.
2 MR. SMALL: Your Honor, having been engaged
3 in an oral gift of real estate case in Kendall County
4 for the best part of the last two years revolving around
5 a supposed 1500 acre gift of a ranch, I can state
6 categorically that I have yet to see one case dealing
7 with an oral gift of real estate that equates that cause
8 of action to promissory estoppel. They are two
9 different things. And taking issue with counsel's
10 suggestion of what 91(a) does and does not permit,
11 91(a)(5) is titled effective nonsuit or amendment. The
12 Court may not rule on a motion to dismiss if at least
13 three days before the date of the hearing, the
14 respondent files a nonsuit of the challenged cause of
15 action or the movant withdraws the motion.
16 And I would suggest that the cases say that
17 an amendment that drops a cause of action -- an amended
18 petition that drops a cause of action is effective
19 nonsuit of that particular cause of action. And here
20 again --
21 THE COURT: When you say you believe the
22 cases say, which cases are you --
23 MR. SMALL: I was not prepared to present a
24 case to the Court, but I will be happy to provide that
25 authority to the Court and to Mr. Barbour because if --
23
1 I've run into case where even if you drop a defendant
2 out of the caption on a case, you have effectively
3 dropped them out of the case. So, you know, that's the
4 equivalent of a nonsuit.
5 THE COURT: And so I'm going to ping-pong
6 back to Mr. Barbour.
7 Mr. Barbour, would you agree or disagree
8 that by dropping a cause of action that that is the
9 effect of a nonsuit and so -- which is the -- then would
10 fall within the realm of subsection A?
11 MR. BARBOUR: I would not, Your Honor. You
12 know, Rule 162 specifically provides for nonsuits to
13 occur and there's a nonsuit pleading a plaintiff has to
14 file or a claimant has to file obviously to nonsuit that
15 claim. And under Texas' notice pleading standards, you
16 know, headings frankly are irrelevant to a plaintiff's
17 claim anyway. You know, it's the content of the
18 pleading that we're looking at. So whether a plaintiff
19 styles her claim as promissory estoppel or oral gift or
20 whatever the case may be, the underlying claim itself,
21 you know, does not change in light of that.
22 So I think if the framers of Rule 91(a)
23 wanted to allow for the, you know, the amendment of the
24 pleading to withdraw that cause of action, they would
25 have provided for that, respectfully, Your Honor. They
24
1 did not. They specifically required a nonsuit, which is
2 a very clear delineated bright-line action. You're
3 either forgoing the claim voluntarily and nonsuiting it
4 or, you know, an amendment may or may not, you know,
5 we're left in this gray area. And plaintiff having not
6 followed that very clear procedure to specifically and
7 affirmatively disallow the promissory estoppel claim by
8 nonsuiting it means that, you know, it's still there
9 intertwined with this oral gift claim as conceded in her
10 response to the motion to dismiss.
11 THE COURT: Thank you, Mr. Barbour.
12 And before we go any further, Mr. Small,
13 and right now the Court is of the mindset that I really
14 would like case law, but did we find within the
15 transcript from March 18th the portion where the
16 argument that was made this morning was in fact made on
17 March 18th?
18 MR. SMALL: Yes, ma'am. It was Page 11
19 lines 10 and 11, not page 6.
20 MS. BROWN: Apologize for that, Your Honor.
21 THE COURT: It's okay. Page 11, lines --
22 MR. SMALL: Page 11, lines 10 and 11 are
23 the most succinct place I think.
24 (Short pause.)
25 THE COURT: Mr. Barbour, would you like to
25
1 respond at this time?
2 MR. BARBOUR: I would, Your Honor. As I
3 read lines -- page 11, lines 10 and 11, you know,
4 there's -- they have not objected to our current
5 pleading. I see that. I don't see any argument there
6 that the motion to dismiss is defective or can't proceed
7 based on its current content whatsoever. They were an
8 affirmative duty. If they're wanting to argue that the
9 quote, unquote, contents of the motion as provided under
10 Rule 91(a)(2) must specifically address it and that it's
11 insufficient, that's not at all spelled out there, Your
12 Honor. And even if they did, they never asked the Court
13 for a ruling on that motion at that time and it wasn't
14 raised, you know, as a formal objection. It's an aside
15 that doesn't at all raise these issues for the Court's
16 review.
17 And so I would both argue that it's not a
18 proper objection whatsoever and it certainly was not
19 preserved at that point to be raised in the motion for
20 new trial. So I don't think they exhausted their
21 burdens at all.
22 THE COURT: Thank you, Mr. Barbour.
23 Mr. Small, I'm going to let you hopefully
24 tie up any loose ends at this time.
25 MR. SMALL: I would.
26
1 The last thing. And counsel appear to be
2 attempting to tag Ms. Brown with some kind of admission
3 that promissory estoppel and oral gift of real estate
4 are one and the same, but the fact of the matter is that
5 91(a) explicitly states that this is a ruling only on
6 the pleadings. And the pleadings say what the pleadings
7 say. No evidence, no argument of counsel, no nothing.
8 It's the pleadings and the pleadings alone.
9 And we would ask that the Court deny their
10 91(a) motion to dismiss. Thank you.
11 THE COURT: Thank you, Mr. Small.
12 So what we're going to do is we're going to
13 allow Mr. Small to submit by e-mail and only for this
14 purpose, and CC Mr. Barbour, his two cases on the issue
15 of 91(a) and whether dropping a cause of action in fact
16 falls into the realm that would permit the argument that
17 was made today. Only that case. And he's going to get
18 it to me before noon. Yes? Yes. And that way
19 Mr. Barbour -- I don't know if you're doing anything
20 before 2:00 today or not. I really would -- I want to
21 have some finality one way or another. And I want to
22 let you guys know before 5:00 if at all possible. So if
23 you would like that, then Mr. Small can get it to me
24 before noon, and then you can have until what time
25 afternoon to respond, Mr. Barbour?
27
1 MR. BARBOUR: You said 2:00, Your Honor,
2 that would be fine by me.
3 THE COURT: Okay. So 2:00 and that way --
4 so that would be wonderful. If you get it before
5 then -- I have lunch between 12:00 and 1:30 and I don't
6 have a judges' meeting at lunch so -- just so you know
7 the Court's schedule. But with that, I appreciate your
8 arguments. I appreciate your early morning rise in
9 coming to the 57th this morning. And y'all are excused.
10 Thank you very much.
11 (Proceeding concluded.)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
28
1 STATE OF TEXAS
2 COUNTY OF BEXAR
3
4 I, Mary Martinez, Certified Court Reporter in and
5 for Bexar County, State of Texas, do hereby certify that
6 the above and foregoing contains a true and correct
7 transcription of the proceedings requested in the
8 above-styled and numbered cause, all of which occurred
9 in open court or in chambers and were reported by me.
10 I further certify that this Reporter's Record truly
11 and correctly reflects the exhibits, if any, offered by
12 the respective parties.
13 I further certify that the total cost for the
14 preparation of this Reporter's Record is $ 216.00
15 (expedited) and was paid by Ms. Olga Brown .
16 To which I certify on this the 15th day of
17 May , 2015.
18
19
20
21 /s/ Mary Martinez
Mary Martinez, CSR 5943
22 57th District Court
Bexar County Courthouse
23 100 Dolorosa Street
San Antonio, Texas 78205
24 Telephone: 210.335.1602
Exp: 12-31-2016
25
Appendix 31
EEOC FORM 131-A(1~- v9) U.S. Equal Employment Opportunity Commission
PERSON FILING CHARGE
I I
Cearth Faire
THIS PERSON (check one or both)
Human Resources Director
FOOD MANAGEMENT PARTNERS INC./ALL JONES LLC ~ Claims To Be Aggrieved
120 Chula Vista
Hollywood Park, TX 78232
D Is Filing on Behalf of Other(s)
EEOC CHARGE NOC
31 C-2015-00783
I _j FEPA CHARGE NOC
1A15377
NOTICE OF CHARGE OF DISCRIMINATION IN JURISDICTION WHERE A FEP AGENCY WILL INITIALLY PROCESS
(See the enclosed for additional information)
THIS IS NOTICE THAT A CHARGE OF EMPLOYMENT DISCRIMINATION UNDER
[}<] Title VII ofthe Civil Rights Act (Title VII) 0
The Equal Pay Act (EPA)
D The Americans with Disabilities Act (ADA)
D The Age Discrimination in Employment Act (ADEA) 0 The Genetic Information Nondiscrimination Act (GINA)
HAS BEEN RECEIVED BY
D The EEOC and sent for initial processing to
(FEP Agency)
[RJ The Texas Workforce Commission Civil Rights Division and sent to EEOC for dual filing purposes.
(FEP Agency)
While EEOC has jurisdiction (upon expiration of any deferral requirement if this is a Title VII, ADA or GINA charge) to investigate
this charge, EEOC may suspend its investigation and await the issuance of the Agency's final findings and orders. These findings
and orders will be given weight by EEOC in making its own determination as to whether reasonable cause exists to believe that
discrimination has occurred.
You are therefore encouraged to cooperate fully with the Agency. All facts and evidence provided by you to the Agency will be
considered by EEOC when it reviews the Agency's final findings and orders. In many cases EEOC will take no further action,
thereby avoiding the necessity of an investigation by both the Agency and EEOC. This likelihood is increased by your active
cooperation with the Agency.
As a party to the charge, you may request that EEOC review the final findings and orders of the above-named Agency.
For such a request to be honored, you must notify EEOC in writing within 15 days of your receipt of the Agency's final decision and
order. If the Agency terminates its proceedings without issuing a final finding and order, you will be contacted further by EEOC.
Regardless of whether the Agency or EEOC processes the charge, the Recordkeeping and Non-Retaliation provisions of the
statutes as explained in the enclosed information sheet apply.
For further correspondence on this matter, please use the charge number(s) shown above.
Enclosure(s): Copy of Charge
CIRCUMSTANCES OF ALLEGED DISCRIMINATION
D Race 0 Color [}9 Sex D Religion 0 National Origin D Age 0 Disability D Retaliation D Genetic Information D Other
See enclosed copy of chargj of discrim~on~---- __
Date ~uthorized Official
s7L
``
ks,
February 23, 2015 r
__7~
./ DEF-CF-00608
Enclosure with EEOC
Form 131 (11109)
INFORMATION ON CHARGES OF DISCRIMINATION
EEOC RULES AND REGULATIONS
Section 1601.15 of EEOC's regulations provides that persons or organizations charged with employment
discrimination may submit a statement of position or evidence regarding the issues covered by this charge.
EEOC's recordkeeping and reporting requirements are found at Title 29, Code of Federal Regulations (29 CFR):
29 CFR Part 1602 (see particularly Sec. 1602.14 below) for Title VII and the ADA; 29 CFR Part 1620 for the EPA;
and 29 CFR Part 1627, for the AD EA. These regulations generally require respondents to preserve payroll and
personnel records relevant to a charge of discrimination until disposition of the charge or litigation relating to the
charge. (For ADEA charges, this notice is the written requirement described in Part 1627, Sec. 1627.3(b)(3),
.4(a)(2) or .5(c), for respondents to preserve records relevant to the charge- the records to be retained, and for
how long, are as described in Sec.1602.14, as set out below). Parts 1602, 1620 and 1627 also prescribe record
retention periods- generally, three years for basic payroll records and one year for personnel records.
Questions about retention periods and the types of records to be retained should be resolved by referring to the
regulations.
Section 1602.14 Preservation of records made or kept. .... Where a charge ... has been filed, or an action
brought by the Commission or the Attorney General, against an employer under Title VII or the ADA, the
respondent ... shall preserve all personnel records relevant to the charge or the action until final disposition of the
charge or action. The term personn~l records relevant to the charge, for example, would include personnel or
employment records relating to the aggrieved person and to all other aggrieved employees holding positions
similar to that held or sought by the aggrieved person and application forms or test papers completed by an
unsuccessful applicant and by all other candidates or the same position as that for which the aggrieved person
applied and was rejected. The date of final disposition of the charge or the action means the date of expiration of
the statutory period within which the aggrieved person may bring [a lawsuit] or, where an action is brought
against an employer either by the aggrieved person, the Commission, or the Attorney General, the date on which
such litigation is terminated.
NQTICE OF NON-RETALIATION REQUIREMENTS
Section 704(a) of Title VII, Section Z07(f) of GINA, Section 4(d) of the ADEA, and Section 503(a) of the ADA
provide that it is an unlawful employment practice for an employer to discriminate against present or former
employees or job applicants, for an employment agency to discriminate against any individual, or for a union to
discriminate against its members or applicants for membership, because they have opposed any practice made
an unlawful employment practice by the statutes, or because they have made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under the statutes. The Equal Pay Act
contains similar provisions. Additionally, Section 503(b) of the ADA prohibits coercion, intimidation, threats, or
interference with anyone because theY have exercised or enjoyed, or aided or encouraged others in their
exercise or enjoyment, of rights un~,er the Act.
Persons filing charges of discrimination are advised of these Non-Retaliation Requirements and are instructed to
notify EEOC if any attempt at retaliation is made. Please note that the Civil Rights Act of 1991 provides
substantial additional monetary provisions to remedy instances of retaliation or other discrimination, including, for
example, to remedy the emotional harm caused by on-the-job harassment.
NOTICE REGARDING REPRESENTATION BY ATTORNEYS
Although you do not have to be represented by an attorney while we handle this charge, you have a right, and
may wish to retain an attorney to represent you. If you do retain an attorney, please give us your attorney's
name, address and phone number, and ask your attorney to write us confirming such representation.
DEF-CF-00609
DEF-CF-00610
Appendix 32
MAILING ADDRESS (512) 463-2642 Main
101 East 151h Street, Room 144T (512) 463-2643 Fax
Austin, TX 78778-0001 (888) 452-4778 Toll Free
www.twc.state.tx.us (800) 735-2989 Texas Relay
EEOMediation@twc.state.tx.us
Texas Workforce Commission
Civil Rights Division
RESPONDENT NOTICE OF CHARGE OF DISCRIMINATION AND INVITATION TO MEDIATE
February 19, 2015
FOOD MANAGEMENT PARTNERS INC./ALL JONES LLC
120 Chula Vista,
Hollywood Park, TX 78232
Reference: Cearth Faire v. FOOD MANAGEMENT PARTNERS INC./ALL JONES LLC
TWCCRD Charge No.: 1A15377
EEOC Charge No.: 31 C-2015-00783C
To Whom It May Concern:
A Charge of Discrimination has been filed against your organization with the Texas Workforce Commission,
Civil Rights Division (TWCCRD). Enclosed is a copy of the Charge of Discrimination, the Mediation
Invitation, and detailed instructions to assist you in responding to our request for a Respondent's Position
Statement and supporting documentation.
It has been determined that the above referenced Charge of Discrimination is eligible to participate in the
TWCCRD Mediation program. You are cordially invited to participate in our free, voluntary and confidential
Mediation program. Our mediation process is initiated before an investigation begins.
Most of our mediations are completed in one session. While the time required for mediation varies, the
mediation session commonly involves one-half day. Successful mediation results in the closure of the
Charge. If mediation is unsuccessful, the Charge is referred for investigation. Please complete and return
the Respondent's Mediation Invitation by no later than 14 calendar days from the date of this letter.
The TWCCRD has used mediation as an alternative approach since 1995. TWCCRD's trained mediators
utilize appropriate techniques to resolve employment discrimination complaints. Complaints that have not
been successfully mediated will be referred promptly for investigation, unless the TWCCRD has determined
there are extenuating circumstances.
The TWCCRD mediation scheduler will contact both parties to schedule a voluntary mediation session.
Once the mediation session has been scheduled, your assigned mediator will contact you to provide
information about the process and answer any questions you may have about mediation. The TWCCRD
requests both parties to be prepared to schedule a mediation date within the next month.
If either party does not agree to mediate or if the mediation is unsuccessful, your Charge will be transferred
to Investigations. Submit the Position Statement and Supporting Documentation within 7 calendar
days after you have declined mediation or mediation fails. Please be advised that your case will be
assigned to an investigator who will contact you. The Instructions for Position Statement and Supporting
Documentation sheet provides guidance to respondents about the information that must be submitted to the
TWCCRD.
Please note that TWCCRD may request additional information relevant to the Charge. Feel free to contact
us if additional clarification about the investigation process. Failure to submit the requested documentation
may result in the TWCCRD recommending a finding of cause against your organization based on the
available evidence. DEF-CF-00611
Page 2 of 2
If you are represented by legal counsel, please include the legal counsel's name address, e-mail address
and telephone number in a letter sent to the TWCCRD or on the enclosed Respondent's Mediation
Invitation form. Upon receipt of the legal representation statement, all further communication is forwarded to
your legal counsel.
If you have questions, please call the TWCCRD at (512) 463-2642 or our toll free number (888) 452-4778.
Thank you for your time and consideration.
Sincerely,
Texas Workforce Commission
Civil Rights Division
Enclosures: Copy of Charge of Discrimination
Instructions for Position Statement and Supporting Documentation
Unsworn Declaration
Mediation Invitation and Brochure
DEF-CF-00612
MAILING ADDRESS: (512) 463-2642 Main
1
101 East 15 " Street, Room 144T (512) 463-2643 Fax
Austin, TX 78778-0001 (888) 452-4778 Toll Free
www.twc.state.tx.us (BOO) 735-2989 Texas Relay
EEOMediation@twc.state.tx.us
Texas Workforce Commission
Civil Rights Division
RESPONDENT'S MEDIATION INVITATION
February 19, 2015
Reference: Cearth Faire v. FOOD MANAGEMENT PARTNERS INC./ALL JONES LLC
TWCCRD Charge No.: 1A15377
EEOC Charge No.: 31 C-2015-00783C
Please initial the appropriate line below to indicate if you will/will not participate in mediation. By choosing
to participate, you are indicating that you understand mediation is voluntary.
If both the Complainant and Respondent agree to participate in mediation, a TWCCRD mediation
scheduler will contact you to discuss further details and schedule a mediation session.
Please return this form to TWCCRD within fourteen calendar days of the date of this letter:
If we have not received a response from you or your legal representative by that date, we will assume
that you are not interested in participating in our Mediation program. Your complaint will be transferred to
Investigations at that time.
Respondent will participate in mediation.
Respondent will not participate in mediation.
Please complete below:
Respondent Printed Name
Respondent's Signature
Telephone Number E-mail Address
Date Signed
Represented by Legal Counsel? o YES o NO
If YES, please provide contact legal representative information below:
Respondent Legal Representative Contact Name
Respondent Legal Representative Firm's Name
Street Address E-mail Address
Telephone Number City, State, Zip Code
Form 130-C
R Mediation Letter Contact Person DEF-CF-00613
MAILING ADDRESS: (512) 463-2642 Main
1
101 East 15 " Street, Room 144T (512) 463-2643 Fax
Austin, TX 78778-0001 (888) 452-4778 Toll Free
www.twc.state.tx.us (800) 735-2989 Texas Relay
EEOMediation@twc.state.tx.us
Texas Workforce Commission
Civil Rights Division
INSTRUCTIONS FOR POSITION STATEMENT AND SUPPORTING DOCUMENTATION
NOTE: If either party does not agree to mediate or if the mediation is unsuccessful, the Respondent must
submit the Position Statement and Supporting Documentation. Please be prepared to submit the Position
Statement and Supporting Documentation within 7 calendar days after the case is transferred to
Investigations.
Failure to submit the requested documentation may result in the TWCCRD recommending a finding
of cause against your company/agency based on the available evidence.
The Position Statement must address each allegation made in the Complainant's Charge of
Discrimination and each of the items below. Provide copies of any documentation that supports the
Position Statement. Please clearly identify or label the Respondent's Position Statement and Supporting
Documentation. Documentation provided to us in support of the Respondent's position will not be
released to the Complainant while the investigation is open. However, the Complainant may obtain the
investigation file under the Texas Public Information Act after the investigation closes. A summary of your
position and documentation will be prepared and sent to the Complainant for a rebuttal.
The Position Statement must include the following:
(1) The full legal name and address of the Respondent, including if applicable, the relationship to and
name and address of any parent company or agency.
(2) The name, title and address of the individual(s) most directly responsible for managing the
company or agency.
(3) The number of employees currently employed by the Respondent.
(4) A detailed statement that completely responds to each allegation in the Charge of Employment
Discrimination.
(5) A copy of the following information or documentation:
a. Policies and procedures regarding Equal Employment Opportunity (EEO), including
complaint reporting procedures.
b. Written statements from all persons involved or that witnessed the actions identified in
the Charge of Discrimination
c. A list of similarly-situated employees working in the last 2 years, including position title,
the date and reason for the action taken for each employee listed
d. Any other documentation to support the reason for the adverse personnel action.
You may submit your Position Statement and Supporting Documentation by email to
EEOintake@twc.state.tx.us, fax to (512) 463-2642 or mail to 101 East 15th Street, #144-T, Austin, Texas
78778-0001. Failure to fully and completely respond to all information requested may result in an in
person investigation at the worksite or the issuance of a subpoena under Texas Labor Code Sections
21.003(4) and 21.306.
Please understand that Texas Labor Code Section 21.055 prohibits retaliation against a person who has
filed, testified, assisted or participated in any manner in an investigation of a complaint of discrimination
under Chapter 21 of the Texas Labor Code.
DEF-CF-00614
UNSWORN DECLARATION
(Civil Practice and Remedies Code, Chapter 132)
My name is-----,=---,-------,-..,....,----,---------------
(First) (Middle) (Last)
my date of birth is --...,..-,,....,-,:-::-.,....,-.,....,-,.---; and my address is
(MM/DD/YYYY)
_ _ , -:=----::----:--c:-
(Street) (City) (State) (Zip Code)
and ______~--,---,-------
(County)
I declare under penalty of perjury that the foregoing is true and correct.
Executed in -------:-::-----:--:-------- County, State of _ _, on the day
(County) (State) (Day)
of _______7.7~--,--------- -``~--
(Month) (Year)
(Signature)
DEF-CF-00615
EEOC Form 212-A (3/98)
U.S. Equal Employment Opportunity Commission
TO: San Antonio Field Office Date February 11, 2015
541 0 Fredericksburg Ad EEOC Charge No.
Suite 200 31 C-2015-00783
San Antonio, TX 78229
FEPA Charge No.
1A15377
CHARGE TRANSMITTAL
SUBJECT:
Cearth Faire V. FOOD MANAGEMENT PARTNERS
INC./ALL JONES LLC
Charging Party Respondent
D
Transmitted herewith is a charge of employment discrimination initially received by the:
EEOC
[g) Texas Workforce Commission Civil Rights
Division
on January 28,
2015
NameofFEPA Date of Receipt
D Pursuant to the worksharing agreement, this charge is to be initially investigated by the EEOC.
G Pursuant to the worksharing agreement, this charge is to be initially investigated by the FEPA.
D The worksharing agreement does not determine which agency is to initially investigate the charge.
0 EEOC requests a waiver
D FEPA waives
0 No waiver requested
D FEPA will investigate the charge initially
Please complete the bottom pot1ion of this form to acknowledge the receipt of the charge
I
and, where appropriate, to indicate whether the Agency will initiafly investigate the charge.
Typed Name of EEOC or FEPA Official Signature/Initials '-:l. /_/~
lowell Keig £'--/' / ;:;> /0
Cearth Faire v. FOOD MANAGEMENT PARTNERS
INC./ALL JONES LLC
Charging Party Respondent
TO WHOM IT MAY CONCERN:
0 This will acknowledge receipt of the referenced charge and indicate this Agency's intention to initially investigate the charge.
0 This will acknowledge receipt of the referenced charge and indicate this Agency's intention not to initially investigate the charge.
D This will acknowledge receipt of the referenced charge and request a waiver of '1n'1tial investigation by the receiving agency.
D This will acknowledge receipt of the referenced charge and indicate this Agency's intention to dismiss/close/not docket the charge
for the following reasons:
Typed Name of EEOC or FEPA Official
Travis Hicks, Director
I
Signature/Initials
TO: Texas Workforce Commission Civil Rights Division Date February 11,2015
101 East 15th St EEOC Charge No.
Room 144T 31 C·2015-00783
Austin, TX 78778 FEPA Charge No.
1A15377
DEF-CF-00616
E£OCF,;tm5
Agency0es) Charge No(s):.
CHARGE OF '-"''''"'"
This forin iS-atre,cted Oy the PriVacy Act
Statement and otlienn~rmatioobe(ofll e<>mJlleling iAiSJ7/
' . . . : '
~J``~C0un¥,Siala 01 Toxas,ontll