Opinion

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

Court: Texas Court of Appeals, 1st District (Houston)
Filed: May 7, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

The opinion

ACCEPTED

01-15-00423-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

5/7/2015 11:44:52 AM

CHRISTOPHER PRINE

CLERK

No. 01-15-00423-CV st

FILED IN

1 COURT OF APPEALS

HOUSTON, TX

IN THE MAY 7, 2015

CHRISTOPHER A. PRINE,

CLERK

FIRST JUDICIAL DISTRICT COURT OF APPEALS

at HOUSTON, TEXAS

IN RE 8650 FRISCO, LLC d/b/a ESTILO GAUCHO BRAZILIAN

STEAKHOUSE, MANDONA, LLC, GALOVELHO, LLC, BAHTCHE, LLC,

CLAUDIO NUNES, and DAVID JEIEL RODRIGUES,

Relators

ORIGINAL PROCEEDING FROM THE 133rd JUDICIAL DISTRICT COURT

HARRIS COUNTY, TEXAS

EMERGENCY RELIEF REQUESTED

MOTION FOR EMERGENCY TEMPORARY RELIEF TO STAY ACTION

BY THE TRIAL COURT

TO THE HONORABLE FIRST COURT OF APPEALS:

Relators, 8650 Frisco LLC, Mandona, LLC, Galovelho, LLC, Bahtche,

LLC, Claudio Nunes, and David Jeiel Rodrigues (hereinafter “Relators”) file

this, the Relators’ Motion for Temporary Relief and would respectfully show

the Court as follows:

INTRODUCTION

1. Relators are 8650 Frisco LLC, Mandona, LLC, Galovelho, LLC,

RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 1 OF 8

Bahtche, LLC, Claudio Nunes, and David Jeiel Rodrigues.

2. The Real Parties In Interest are Los Cucos Mexican Café VIII, Inc., Los

Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera

3. Respondent is the Honorable Jaclanel McFarland, Judge Presiding of

the 133rd Judicial District Court, located in Harris County.

4. Relators filed their Petition for Writ of Mandamus on May 6, 2015, in the

above captioned case.

5. Relators attach a certificate of compliance certifying that on May 7,

2015, they notified respondent and real parties in interest by expedited

means that a motion for temporary relief has been filed. Tex. R. App. P.

52.10(a).

6. The original proceeding in which a petition for writ of mandamus was

filed complains of two orders issued by the Respondent compelling

discovery responses and imposing sanctions on the Relators for failure

to comply with previous discovery orders.

7. Respondent’s April 1, 2015 order compelled discovery of documents

which have no relevance to the live pleading on file with the trial court.

8. Additionally, Respondent’s April 27, 2015 Order included sanctions

barring Relators from further discovery until the documents are

RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 2 OF 8

produced, taxing costs incurred in securing production of the

documents to the Relators, and conclusively establishing an unpleaded

issue in favor of the Real Parties in Interest.

9. Finally the order demanded compliance by hand delivery of responsive

documents to the office of Counsel for the Real Parties in Interest forty-

eight hours after the Respondent signed the order. Said office is in

Houston, and is 260 miles from the Office of Counsel for Relators. The

documents for which discovery was compelled had been served

pursuant to TEX. R. CIV. P. 21 and 21a twice previously.

10. Respondent signed this order in the presence of Counsel for Real

Parties in Interest but outside the presence of Relators’ attorney.

11. On May 3, 2015, Counsel for Real Parties in Interest served the April

27, 2015 order on Relators’ attorney requiring compliance by April 29,

2015. Counsel then demanded compliance by noon on May 4, 2015.

This letter is attached to the motion as “Exhibit A” and is incorporated

in haec verba.

12. On May 4, 2015, Counsel for Real Parties in Interest filed with the

Respondent and served on Relators’ attorneys its Fourth Motion to

Enforce the Court’s Order in which the Real Parties in Interest

RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 3 OF 8

demanded that the Respondent strike the Relators’ pleadings for failure

to comply. The Fourth Motion to Enforce the Court’s Order is attached

to this motion as “Exhibit B” and is incorporated in haec verba. The

Real Parties in Interest set this matter for hearing on May 18, 2015.

ARGUMENT & AUTHORITIES

13. The Court may grant temporary relief pending its determination of an

original proceeding. Tex. R. App. P. 52.10(b).

14. This emergency stay is necessary to maintain the status quo of the

parties and to preserve the Court’s jurisdiction to consider the merits of

the original proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex.

App.—San Antonio 1995, orig. proceeding). Relators filed their Petition

in the above captioned case on May 6, 2015, seeking relief from both

the April 1, 2015 order and the April 27, 2015 order, both of which the

Real Parties In Interest seek to enforce in their Fourth Motion to Enforce

the Court’s Order.

15. The issues at the heart of Relators’ Petition for Writ of Mandamus are

the same issues on which the Real Parties’ in Interest Motion to Enforce

are based. See Exhibit B. Granting the Petition for Writ of Mandamus

would dispose the issues in the Petition and in the Fourth Motion to

RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 4 OF 8

Enforce the Court’s Order simultaneously. A stay maintains the state of

affairs between the parties, and prevents irreparable harm from

accruing to either side, pending the court’s decision on the Relator’s

Petition for Writ of Mandamus.

16. Relator attaches an unsworn declaration to establish facts that are not

included in the appellate record, are not known to the Court in its official

capacity, and are not within the personal knowledge of the attorney

signing this motion. Tex. R. App. P. 10.2.

CONCLUSION

9. Because the issues raised by the Relators in above-captioned original

proceeding address all of the issues raised by the Real Parties in Interest in

their Fourth Motion to Compel, a stay would operate to prevent needless

expense to both parties and the trial court and would resolve the ongoing

discovery dispute.

PRAYER

WHEREFORE, PREMISES CONSIDERED, the Relators ask the Court for an

emergency stay of the Respondent’s consideration of Real Parties’ in Interest

Fourth Motion to Enforce until such time as this Court has had an opportunity

to review the merits of Relators’ above-captioned Petition for Writ of

RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 5 OF 8

Mandamus. This stay will maintain the status quo of the parties and preserve

the Court’s jurisdiction to consider the merits of relator’s original proceeding.

RESPECTFULLY SUBMITTED, MOSSER LAW PLLC

/s/ James C. Mosser

James C. Mosser

Texas Bar No. 00789784

Nicholas D. Mosser

Texas Bar No. 24075405

Paul J. Downey

Texas Bar No. 24080659

2805 Dallas Parkway, Suite 220

Plano, Texas 75093

Tel. (972) 733-3223

Fax (469) 626-1073

courtdocuments@mosserlaw.com

LAWYERS FOR RELATORS

CERTIFICATE OF COMPLIANCE 1

In accordance with Tex. R. App. P. 52.10, the relators have notified all

parties by expedited means that a motion for temporary relief has been or

would be filed in this court. The following parties were notified:

Respondent

Honorable Jaclanel McFarland

Judge Presiding

133rd Judicial District Court

Harris County Civil Courthouse

201 Caroline, 11th Floor

Houston, Texas 77002

Tel. 713-368-6200

RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 6 OF 8

Real Parties In Interest

Los Cucos Mexican Café VIII, Inc.;

Los Cucos Mexican Café IV, Inc.;

Manuel Cabrera; and

Sergio Cabrera,

represented by

Stephens & Domnitz, PLLC

Kelly Stephens

Texas Bar No. 19158300

P.O Box 79734

Houston, Texas 77279-9734

Tel. 281-394-3287

Fax 832-476-5460

kstephens@stephensdomnitz.com

/s/ Paul J. Downey

Paul J. Downey

CERTIFICATE OF COMPLIANCE 2

I certify that this Motion for Leave to File Appellee’s Sur-Reply complies

with the word limit of Tex. R. App. P. 9.4 because it contains 867 words,

excluding the parts of the motion exempted by Tex. R. App. P. 9.4. I relied

on the word count feature of Corel WordPerfectX6 to reach this number

/s/Paul J. Downey

Paul J. Downey

CERTIFICATE OF CONFERENCE

I certify that on May 7, 2015, I attempted to confer with Kelly Stephens, the

attorney-in-charge for the Real Parties’ In Interest litigation efforts in

accordance with TEX. R. APP. P. 10.1(a)(5). He failed to respond to the

request prior to the filing of this motion.

/s/ Nicholas D. Mosser

Nicholas D. Mosser

RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 7 OF 8

CERTIFICATE OF SERVICE

In accordance with TEX. R. APP. P. 9.5, I certify that on May 7, 2015, I

served a copy of this Motion for Temporary Relief on the following parties:

Respondent

Honorable Jaclanel McFarland

Judge Presiding

133rd Judicial District Court

Harris County Civil Courthouse

201 Caroline, 11th Floor

Houston, Texas 77002

Tel. 713-368-6200

Real Parties In Interest

Los Cucos Mexican Café VIII, Inc.;

Los Cucos Mexican Café IV, Inc.;

Manuel Cabrera; and

Sergio Cabrera,

represented by

Stephens & Domnitz, PLLC

Kelly Stephens

Texas Bar No. 19158300

P.O Box 79734

Houston, Texas 77279-9734

Tel. 281-394-3287

Fax 832-476-5460

kstephens@stephensdomnitz.com

/s/ Paul J. Downey

Paul J. Downey

RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 8 OF 8

CAUSE NO. 2014-10896

LOS CUCOS MEXICAN CAFE VIII, § IN THE DISTRICT COURT

INC., LOS CUCOS MEXICAN §

CAFE IV, INC., MANUEL §

CABRERA, and SERGIO §

CABRERA §

PLAINTIFFS, §

V. § 133rd JUDICIAL DISTRICT

8650 FRISCO LLC, MANDONA §

LLC, GALOVELHO LLC, §

BAHTCHE LLC, CLAUDIO §

NUNES, AND DAVID JEIEL §

RODRIGUES §

DEFENDANT. § OF HARRIS COUNTY, TEXAS

UNSWORN DECLARATION OF PAUL J. DOWNEY

1. My name is Paul J . Downey. I am of sound mind, capable of making

this unsworn declaration, and personally acquainted with the facts

herein stated .

2. I am a lawyer at Mosser Law, PLLC.

3. I am one of the custod ians of the records at Mosser Law, PLLC.

4. Attached hereto are the following 50 pages of records from Mosser

Law, PLLC. These records are kept by Mosser Law, PLLC in the

regular course of business, and it was in the regular course of

business of Mosser Law, PLLC, that an employee or representative

of Mosser Law PLLC, with knowledge of the act or event recorded ,

made the records.

5. The records were made at or near the time of the event, or

reasonably soon thereafter.

6. The records attached hereto are exact duplicates of the originals and

contain:

a. Exhibit A- Letter from Real Parties in Interest Dated May 3,

2015;

b. Exhibit B - Real Parties' in Interest Fourth Motion to Enforce the

Court's Order, filed May 4, 2015

My name is Paul James Downey, my date of birth is January 19, 1984, and

my address is C/0 Mosser Law, PLLC, 2805 Dallas Parkway, Suite 222,

Plano, Texas 75093, United States of America . I declare under penalty of

perjury that the foregoing is true and correct.

Executed in Collin County, State of Texas on the 5th Day of May, 2015.

P/(2z_ Z ~

PauiJ. Er~ ~

HAWASH MEADE

HAWASH MEADE GASTON NEESE & CJCACK LLP

Samuel B. Haren

sharen@hmgnc.com

713-658-9001 (phone)

713-658-9011 (fax)

May 3, 2015

Via Facsimile:

(469) 626-1073

Mr. James C. Mosser

Mr. Nicholas D. Mosser

Mosser Law PLLC

17110 Dallas Parkway, Suite 290

Dallas, Texas 75248

Re: Cause No. 2014-10896, Los Cucos Mexican Cafe VIIL Inc. et al. v. 8650 Frisco, LLC et

al. in the 133rd Judicial District Comt ofHanis County, Texas

Dear Mr. Mosser:

The Comt' s order is attached. As you are aware, it was readily available to anyone from the

Court's clerk and to any licensed attomey from the District Clerk's website. As stated in my previous

letter, if you have not complied with the Court's order by noon on Monday, May 4, 2015, we will file a

fomth motion to enforce the Comt's order.

_;'_ff

~-H-a-re_n_ __

2118 Smith Street I Houston, Texas 77002

Main Phone: (713) 658-9001 I Main Facsimile: (713) 658-9011

www. hmg II p.com

Exhibit A Page 1

CAUSE NO 2014-10896

LOS CUCOS MEXICAN CAFE Vill,

INC , LOS CUCOS MEXICAN

IN THE DISTRICT COURT OF f,Z -

CAFE IV, INC , MANUEL §

cf Mr£u=x

CABRERA, and SERGIO §

CABRERA, §

Plamtiffs § /tTFE)(

§ ~

v § (}

§ HARRIS CO~, TEXAS ""'

8650 FRISCO, LLC D/B/A ESTILO § 0~ ~ 9

GAUCHO BRAZILIAN § ~ CP

STEAKHOUSE, MANDONA, LLC, § 0~

GALOVELHO, LLC, BAHTCHE, § «:::}~

LLC, CLAUDIO NUNES, and § ~ 0

DAVID JEIEL RODRIGUES, § 0~ ~

Defendants § Ul~ JUDICIAL DISTRICT&

ftj(9}

Order Grantm

Third MotiOn To En~ he Court's Order

On thrs day the Court came to con~Wlamtrffs' Thrrd Matron to Enforce the Court's

Order (the "Motion") After consrdenn~e facts, law, and argument of counsel, the Court has

decrded to GRANT the Matron nt~nts Will produce all documents responsive to Requests

for Production 1, 2, 3, 4, 5, 7~Q8 contamed m Exhrbrt 1 to the Mohon (the "Documents")

~0.

Thrs productron must be ~hrough hand delivery dunng normal busmess hours to Andrew

Meade or Samuel H~

Gat HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smrth,

o~j

Houston, Texas 7f!;Qj. ·'

The ~Q fiuther finds that Defendants VIOlated three of the Court's pnor orders by

farlmg to ~uce responsrve documents Thrs misconduct Is part of a larger pattern of Improper

objectwns, mentless motions, frrvolous arguments, fergned rgnotance of baste factual and legal

Issues, and drshonest gamesmanship m vrolatwn of Texas Rule of Crvll Procedure 13 Pt evrous

warnmgs from the Court have been meffectrve m forcmg Defendants to comply wrth the Court's

Exhibit A Page 2

orders or with Texas law, and another warnmg IS unlikely to achieve better results Moreover,

another warnmg would only encourage Defendants to contmue their egregwus behaviOr m the

future

Accordmgly, the Court ltnposes the followrng sanctiOns

•

Defendants may not conduct additional discovery m this matter u~~representattve

of 8650 Fnsco, LLC stgns a sworn affidavit of compliance wtth ~~rder,

• Defendants shall pay $ iV()V, f30 to Plamtlffs fot; ~ costs mcurred m

secunng productiOn of the. ocuments, and ~

• the Issue of whether Plamtrffs face Irreparable harm ~~e lack of the note/secunty

requrred by the parties' contract IS conclusively es~Yed m Plarntiffs' favor

Should Defendants fall to comply w1th this order w~ forty~eight hours of the stgnature

hereof, Defendants and their attorneys of record

wtl~ asked to personally appear and show

cause as to why they should not be held m cont~~th1s Court

~ru

Signed on the _Jj_ day of 4f:rt?J<f!2 ,2015

a~ ~c-k9J

ug~~

o~ry;

Exhibit A Page 3

5/4/2015 2:00:20 PM

Chris Daniel - District Clerk Harris County

Envelope No. 5138641

By: JIMMY RODRIGUEZ

Filed: 5/4/2015 2:00:20 PM

Cause No. 2014-10896

Los Cucos Mexican Cafe VIII, Inc.; In the District Court of

Los Cucos Mexican Cafe IV, Inc.;

Manuel Cabrera; and Sergio Cabrera,

Plaintiffs

Harris County, Texas

8650 Frisco, LLC d/b/a Estilo Gaucho

Brazilian Steakhouse; Mandona,

LLC; Galovelho, LLC; Bahtche,

LLC; Claudio Nunes; and David Jeiel

Rodrigues,

Defendant 133rd Judicial District

Plaintiffs’ Fourth Motion to Enforce the Court’s Order and for Sanctions

The Court has ordered Plaintiffs to produce certain financial documents on four separate

occasions. Defendants have refused to do so. Plaintiffs request that the Court obviate the need for

further document production by striking Defendants’ pleadings.

Background

At a June 23, 2014 hearing, the Court orally ordered Defendants to produce certain

financial documents. Exhibit 1, Transcript of Motion to Compel Hearing at 23:2–9. Defendants

pretended that, they “ha[d] never been served with an order from the court to produce

documents,” they were not required to do so. Exhibit 2 Letter from Mosser to Stephens. On July

28, 2014, the Court again ordered Defendants to produce all responsive documents “by August 1,

2014.” Exhibit 3, Order on Plaintiffs’ Third Motion to Compel. Defendants improperly served an

inadequate production. On March 30, 2015, the Court ordered Defendants a third time to produce

all responsive documents “by 5:00 p.m. on Wednesday, April 1, 2015.” Exhibit 4, Order on

Plaintiffs’ Second Motion to Enforce the Court’s Order. Defendants again violated the Court’s

order by making a woefully incomplete production.

Exhibit B Page 4

On the morning of Monday, April 27, the Court ordered Defendants to (1) produce all

responsive documents and (2) pay a $1,000 sanction. Exhibit 5, Order Granting Plaintiffs’ Third

Motion to Enforce the Court’s Order. The Court further ordered that, “[s]hould Defendants fail to

comply with this order within forty-eight hours of the signature hereof, Defendants and their

attorneys of record will be asked to personally appear and show cause as to why they should be

held in contempt of this Court.” Id. Once again, Defendants ignored this order.

On Thursday, April 30, Plaintiffs informed Defendants of their failure to comply with the

Court’s order and demanded production of the documents and payment of the sanction before

noon on Monday, May 4. Exhibit 6, Letter from Haren to Mosser. At 4:50 p.m. on Friday,

May 1, Defendants sent the following response:

Exhibit 7, Letter from Mosser to Stephens. Even though the order was available from the Court’s

office and through the District Clerk’s website, Plaintiffs forwarded a copy of the order to

Defendants on Sunday, May 3. Exhibit 8, Letter from Haren to Mosser.

Background

The Court has ordered Defendants to produce certain documents on four separate

occasions. Defendants have refused or failed to comply all four times. Defendants’ most recent is

excuse is that they were not “served” a copy of the Court’s order. See Exhibit 7, Letter from

Mosser to Stephens As the Court may recall, this was the same explanation Defendants offered

Exhibit B Page 5

for their failure to comply with the original order compelling production. See Exhibit 2, Letter

from Mosser to Stephens. This excuse was invalid both times it was made. Regardless of

whether Defendants “served” a copy of the Court’s order, “[t]he law charges all parties and their

lawyers with notice of all orders and judgments that the court renders in the case.” Welborn

Mortg. Corp. v. Knowles, 854 S.W.2d 328, 331 (Tex. App.—Dallas 1993, writ denied). For this

reason alone, Defendants are deemed to have known the contents of the Court’s order.

Moreover, “[t]he law charges one who has knowledge of facts that would cause a prudent

man to inquire further with notice of the facts that, by use of ordinary intelligence, he would

have learned.” Id. Defendants appeared at the April 27 hearing telephonically, so they were

aware that the Court ordered them to produce documents and pay a sanction. Defendants were

further aware that copies of the order could have been easily obtained by calling the Court’s

clerk or by visiting the District Clerk’s website. A reasonably prudent attorney who was ordered

to pay a sanction and produce documents would make an effort to obtain such orders rather than

remaining deliberately ignorant.

Further, Defendants received actual notice at 1:57 p.m. on April 30 that the Court had

signed an order requiring Defendants produce documents and pay a sanction within 48 hours.

See Exhibit 6, Letter from Haren to Mosser. Thus, Defendants had at least 94 hours between

receipt of actual notice of the terms of the Court’s order and the filing of this motion.

As a sanction for Defendants’ fourth failure to comply with the Court’s order, Plaintiffs

ask the Court to order that:

 Defendants’ attorneys pay Plaintiffs a sanction for all attorneys’ fees incurred in

attempting to obtain the requested documents;

 Defendants and their attorneys appear and show cause as to why they should not be

held in contempt; and

 Defendants be disallowed from conducting any discovery in this case.

Exhibit B Page 6

Plaintiffs are hopeful that such a sanction will be sufficient to ensure future compliance

with the Court’s orders and Defendants’ obligations under the Texas Rules of Civil Procedure.

Conclusion

Defendants continue to ignore the Court’s orders. Plaintiffs pray that the Court further

sanction Defendants and order Defendants and their attorneys to show cause as to why they

should not be held in contempt. Plaintiffs further pray for all other relief to which they are

entitled.

Respectfully submitted,

Hawash Meade Gaston

Neese & Cicack LLP

/s/ Samuel B. Haren

Andrew K. Meade

State Bar No. 24032854

Jeremy M. Masten

State Bar No. 24083454

Samuel B. Haren

State Bar No. 24059899

2118 Smith Street

Houston, Texas 77002

713-658-9001 (phone)

713-658-9011 (fax)

ameade@hmgnc.com

jmasten@hmgnc.com

sharen@hmgnc.com

Stephens & Domnitz, PLLC

Kelly D. Stephens

State Bar No. 19158300

P.O. Box 79734

Houston, Texas 77279-9734

281-394-3287 (phone)

832-476-5460 (fax)

kstephens@stephensdomnitz.com

Exhibit B Page 7

Cox Smith Matthews Incorporated

David Kinder

State Bar No. 11432550

112 East Pecan Street, Suite 1800

San Antonio, Texas 78205

210-554-5500 (phone)

210-226-8395 (fax)

Attorneys for Plaintiffs

Certificate of Conference

I sent two letters to opposing counsel in an effort to obtain the documents and payment

without further judicial intervention. I further tripled the time for compliance from the two days

allowed by the Court to six. Despite this, Defendants still have not complied with the Court’s

order.

/s/ Samuel B. Haren

Samuel B. Haren

Certificate of Service

A true and correct copy of the foregoing has been served on all counsel of record via

electronic service on May 4, 2015.

James C. Mosser

Nicholas D. Mosser

Mosser Law PLLC

17110 Dallas Pky, Suite 290

Dallas, Texas 75248

/s/ Samuel B. Haren

Samuel B. Haren

Exhibit B Page 8

MOTION TO COMPEL

1 REPORTER'S RECORD

VOLUME 1 OF 1 VOLUME

2 TRIAL COURT CAUSE NO. 2014-10896

4 LOS CUCOS MEXICAN CAFE VIII( IN THE DISTRICT COURT OF

INC.;LOS CUCOS MEXICAN (

5 CAFE IV,INC.; MANUEL (

CABRERA;AND SERGIO CABRERA (

6 (

VS. ( HARRIS COUNTY, TEXAS

7 (

8650 FRISCO,LLC D/B/A ESTILO

8 GAUCHO BRAZILIAN (

STEAKHOUSE; MANDONA,LLC; (

9 GALOVELHO,LLC;BAHTCHE, (

LLC; CLAUDIO NUNES; AND (

10 DAVID JEIEL RODRIGUES ( 133rd JUDICIAL DISTRICT

11 _______________________________________________________

MOTION TO TRANSFER

13 _______________________________________________________

15 On the 23rd day of June, 2014, the following

16 proceedings came on to be held in the above-titled and

17 numbered cause before the Honorable JACLANEL McFARLAND,

18 Judge Presiding, held in Houston, Harris County, Texas.

19 Proceedings reported by computerized stenotype

20 machine.

23 DARLENE STEIN

OFFICIAL COURT REPORTER

24 133RD DISTRICT COURT

HARRIS COUNTY, TEXAS

DARLENE STEIN

Exhibit B

Exhibit 1 Page 9

MOTION TO COMPEL

1 APPEARANCES

2 Mr. Andrew K. Meade

SBN 24032854

3 Mr. Samuel B. Haren

SBN 24059899

4 2118 Smith Street

Houston, Texas 77002

5 Telephone: (713)658-9001

Telephone: (713)658-9011 (Fax)

6 Attorney for Plaintiffs

Mr. Nicholas D. Mosser

8 SBN 24075405

Mr. James Mosser

9 SBN 00789784

17110 Dallas Parkway, Suite 290

10 Dallas, Texas97 75248

Telephone:) (972)733-3223

11 Telephone: (972)267-5072

Attorney for Defendants

DARLENE STEIN

Exhibit B Page 10

MOTION TO COMPEL

1 CHRONOLOGICAL INDEX

2 June 23, 2014

3 PAGE

4 Proceedings............................... 4

5 Argument by Mr. Meade..................... 6

6 Argument by Mr. Mosser.................... 11

7 Proceedings concluded..................... 25

8 Reporter's Certificate.................... 26

DARLENE STEIN

Exhibit B Page 11

MOTION TO COMPEL

1 (P R O C E E D I N G S)

2 June 23, 2014

4 THE COURT: This is Cause No. 2014-10896.

5 And if everyone would announce who they are and who they

6 represent, please.

7 MR. MEADE: Andrew Meade and Sam Haran for

8 the Plaintiffs.

9 THE COURT: Mr. Mosser, if you'll announce

10 who you are and who you represent, please.

11 MR. MOSSER: I'm sorry?

12 THE COURT: Announce who you are and who

13 you represent.

14 MR. MOSSER: Yes, ma'am. This is James

15 Mosser, Mosser Law Firm, PLLC, appearing telephonically

16 on behalf of all Defendants.

17 THE COURT: Okay. I will tell you that I

18 don't have the motions in front of me. My law clerks

19 have gone to get them. For some reason, even though you

20 are on the docket, they thought it had been pulled. So,

21 anyway, but I'm going to let y'all go ahead and start. I

22 think it's Plaintiff's motions. So, I'm going to let

23 them go ahead and start while the law clerks are bringing

24 in the actual written motions.

25 MR. MEADE: All right. Your Honor, if

DARLENE STEIN

Exhibit B Page 12

MOTION TO COMPEL

1 you'll recall, this is a -- my client supplied about

2 $950,000 in some equipment for a restaurant --

3 MR. MOSSER: Your Honor, if he could get

4 closer to the microphone or speak up louder, it would be

5 easier to hear.

6 THE COURT: Yeah. Well, I'll put the

7 phone a little closer. But, you know, have you got a

8 storm in Dallas? Is that the problem or what? You know,

9 when you don't show up, it's -- we can only do the best

10 we can do.

11 You know, that's why when I practiced law,

12 I didn't depend on Southwest. Now, going to committee

13 meetings, I depended on Southwest a lot. I was on a lot

14 of Baptist boards that met over on North Washington, the

15 Baptist building. But when I had a case, I usually drove

16 down the night before or drove up or drove west or east or

17 wherever I was going.

18 MR. MEADE: And -- and for convenience,

19 Your Honor, we will try to set hearings in the case on

20 Fridays and Mondays to make that more convenient.

21 THE COURT: Well, we don't have hearings

22 on Fridays. So, they have to be on Mondays.

23 MR. MEADE: Mondays.

24 And so, the situation that we've got

25 here -- Your Honor will recall that we had previously

DARLENE STEIN

Exhibit B Page 13

MOTION TO COMPEL

1 noticed depositions for early May of the Defendants, that

2 those depositions had been quashed. So, we set a Motion

3 to Compel. The Court ordered the depositions to occur in

4 June. We agreed on dates that were put into the Court's

5 order, which was June 9th and 10th for six depositions to

6 occur.

7 On the Sunday before -- June 9th was a

8 Monday. 10th was a Tuesday. On the Sunday before,

9 Mr. Mosser left a message on Mr. Stephen's phone, saying

10 that he wouldn't be attending the depositions nor would

11 his clients because -- and they subsequently filed a

12 motion. Mr. Mosser apparently has a nervous system injury

13 of some sort that he came down with the day before the

14 depositions. And there is nobody else within his

15 four-person law firm who's qualified to sit in a chair and

16 defend a deposition.

17 He then went and set his Motion to Transfer

18 Venue, offered us some dates in late July that -- or --

19 that conflict with a trial that I have in Judge

20 Englehart's court. And then when I rejected those dates,

21 offered dates in August.

22 And we have run into a problem now, which

23 is that I leave the country on Saturday for two and a half

24 weeks. I get back and have five days to prepare for a

25 week-long trial in Judge Englehart's court. And then at

DARLENE STEIN

Exhibit B Page 14

MOTION TO COMPEL

1 the end of the week that I'm in trial with Judge Englehart

2 is their Motion to Transfer Venue. We have taken the

3 position, which is correct under the rules, that discovery

4 should not be and cannot be, in fact, abated while a

5 Motion to Transfer Venue is pending.

6 They have taken the position and even set

7 for today and then withdrew a Motion to Stay all

8 proceedings while they have the opportunity to have that

9 Motion to Transfer Venue heard.

10 We're going to have to take these

11 depositions before the Motion to Transfer Venue hearing.

12 We need them ordered and compelled, and we need the Motion

13 to Transfer Venue hearing pushed back till that can

14 happen.

15 But we also need Mr. Mosser or his clients

16 to pay the costs of the depositions that were ordered -- I

17 took Certificates of Nonappearance on all six

18 depositions -- and that they ought to have to bear the

19 cost on each of those.

20 The next issue that we have is as you'll

21 recall, we have an accountant that worked for the company

22 in New Braunfels and then a new accountant in Dallas. We

23 had the -- the letter and correspondence where they said,

24 you know, turn over all records and destroy all in your

25 possession. And -- and we had to move to compel the

DARLENE STEIN

Exhibit B Page 15

MOTION TO COMPEL

1 accountant to produce the records from New Braunfels, and

2 he did produce the records to us.

3 But we have also asked for certain

4 financial records, including tax records and other

5 financial documents from the Defendants themselves; and

6 soon we will -- and, also, their new accountant, who will

7 soon have to come down on a Motion to Compel, as well,

8 although that's not part of today.

9 The -- the other issue that is part of

10 today is their responses and objections to our requests

11 for production, which deal with the financial and tax

12 records.

13 Starting with the tax records, there are

14 numerous reasons why as members of the company and --

15 that -- that we're entitled to the tax records of an LLC.

16 First of all, the statute allows it.

17 Second, we need to prepare our own tax

18 returns.

19 Third, how they chose to characterize our

20 capital contributions, the proportion of what is

21 characterized as a loan and capital contribution and all

22 of that is going to be relevant to the parties' agreement

23 or disagreement about our membership status and -- and how

24 much money is owed in terms of -- our position is that

25 part of the money was loaned and part of it was a capital

DARLENE STEIN

Exhibit B Page 16

MOTION TO COMPEL

1 contribution, and -- and they may or may not disagree,

2 although they haven't disclosed their theory of the case

3 to us at all in any way. That will be relevant, those tax

4 records.

5 The other financial records, which include

6 bank account statements, we're -- we're entitled to the

7 books and records, again, of the company; but, also, these

8 bank account statements are going to be relevant to

9 whether distributions -- because under the -- under the

10 limited liability company act, under the partners' oral

11 agreement, and under the written agreements that were

12 exchanged, we would be entitled to distributions of

13 distributable cash.

14 None have been made to us. We believe some

15 have been made to the Defendants, substantial

16 distributions, and that there is distributable cash. We

17 believe that, but we don't have the records to show it,

18 and the bank statements will go a long ways towards that.

19 What we've met with to date is an objection

20 every step of the way and resistance even to Court-ordered

21 depositions. And -- and the objection that was made, for

22 example, to the accountant's records was that objection of

23 privilege that the Texas courts don't recognize. Well, it

24 was made again in response to requests for production

25 after the Court had already ruled on the objection in

DARLENE STEIN

Exhibit B Page 17

MOTION TO COMPEL

1 relation to the accountant.

2 They made other objections; for example,

3 objecting that the Texas Finance Code provides the

4 exclusive means to get bank account statements, even bank

5 account statements of a party. I -- I assure you that I

6 will go to the bank, under the Texas Finance Code, and get

7 the bank statements separately. But that doesn't

8 alleviate the obligation of a party to produce those bank

9 statements.

10 So, a recommendation in -- in one of my

11 motions is really -- it's really -- we're asking for the

12 relief but sort of recommending a path for the Court,

13 would be to appoint a discovery master in the case. I

14 don't mind coming down here once a week, and I suspect we

15 will be back here again in a week. And I'll tell you why.

16 You know, we had these grills. I -- I

17 don't know if you remember the -- the unique grills.

18 Well, we have reason to believe that the grills have been

19 destroyed. And I've asked for an inspection of the

20 collateral, of -- of the property. They haven't responded

21 to it. I'm going to be asking the Court for it and

22 probably having to move it to compel.

23 When these depositions do occur, I suspect

24 I'm going to meet with a series of objections and probably

25 instructions to the witness not to answer and that sort of

DARLENE STEIN

Exhibit B Page 18

MOTION TO COMPEL

1 thing. And I -- and we can have the depositions in your

2 chambers. I leave it to the Court's discretion of how we

3 deal with these issues; but I would rather, if we can

4 avoid it -- and I -- I know that judges, including

5 yourself, don't like us coming down here all the time on

6 Motions to Compel. I would like to avoid them, if

7 possible. And so, the appointment of a discovery master

8 is one suggestion to do that.

9 And I'll let Mr. Mosser respond.

10 THE COURT: Mr. Mosser?

11 MR. MOSSER: Yes, ma'am.

12 THE COURT: You may respond.

13 Hello?

14 MR. MOSSER: Yes, ma'am. I'm right here.

15 THE COURT: Where -- you want to respond?

16 MR. MOSSER: Oh, yes, ma'am. I surely

17 will. Thank you.

18 May it please the Court? Let me go

19 backwards a little bit here. Let's start with the grills

20 are being destroyed, which is a false statement made by

21 counsel. It has become custom in this case. The problem

22 is we sent notice to counsel that he should come and pick

23 up the grills, and counsel told us they weren't going to

24 pick up the grills.

25 So, we told them if they leave the grills

DARLENE STEIN

Exhibit B Page 19

MOTION TO COMPEL

1 that they claim they loaned to my clients, we told them,

2 If you don't pick them up, we'll just put them in storage;

3 and you can pay the storage bill when you get here.

4 Nobody said they were going to destroy them, and it's just

5 outrageous that he would say those kinds of things.

6 As for bank accounts, the Finance Code does

7 provide the method by which he can obtain the bank

8 accounts. But let's assume he doesn't want to do that and

9 I'm required to deliver bank accounts. If the Court will

10 recall, he mentioned that he held a deposition on written

11 questions for Mr. -- I can't remember the accountant's

12 name -- Hal Holtman, I think -- to produce all the records

13 he had related to anything with my clients.

14 Now, if you will recall from the -- the

15 Temporary Injunction hearing, Mr. Holtman went and

16 testified on everything we told him he shouldn't be

17 testifying on; and then he subsequently, based on comment

18 from counsel this morning, delivered all the documents he

19 had to the Plaintiff's lawyers in this case. That

20 includes the tax returns, all bank statements, all the

21 income statements, all the financial statements,

22 everything related to the business until Mr. Holtman was

23 fired.

24 Now, the Court ordered that. Mr. Holtman

25 turned them over, over our objection. So, I don't think

DARLENE STEIN

Exhibit B Page 20

MOTION TO COMPEL

1 that we're required to produce records in a duplicitous

2 manner that have already been produced by the accountant

3 in this case.

4 And, secondly, those documents were

5 produced to opposing counsel who has yet to this day

6 served them on us. When he gets discovery from whatever

7 source it's from, he's required to serve everybody in the

8 lawsuit, all parties, a copy of that discovery. He has

9 not done so. So, I don't have any.

10 Going back to the top of the complaint from

11 opposing counsel, I'm 69 years old; and I can't help it if

12 my sacral iliac joint gets sprained, inflamed, bruised,

13 and strained. I can't do anything about that. We

14 immediately notified, upon determination that I was

15 immobile, that this deposition had to be reset or

16 postponed.

17 I think it's outrageous that I can't even

18 pick up the phone and call a counsel for a medical problem

19 that he won't reset depositions for or even respond to the

20 telephone calls. I think it's outrageous that they file

21 motions claiming that they've had a conference with

22 opposing counsel, which is plainly false. They didn't

23 have any conference with us. In fact, they filed these

24 motions and then claimed that they had a conference after

25 they filed the motion.

DARLENE STEIN

Exhibit B Page 21

MOTION TO COMPEL

1 As for offering dates, we offer to set a

2 date in July; and understanding trial schedules, as I do,

3 I was required to file a Motion to Continuance on -- let's

4 see -- that date that he wanted to do these, the 16th,

5 17th, somewhere in there because I had a special setting.

6 I had to go into that court and request the Court reset

7 the special setting in that case because of my sacral

8 iliac sprain.

9 I don't under -- I suppose five years ago

10 when I had my quadruple bypass surgery, opposing counsel

11 would complain because that was just an excuse. These are

12 not excuses. These are real-live things. We've offered a

13 second set of dates. Counsel didn't even respond to them.

14 Now, counsel also says that we don't -- we

15 should take depositions to get proof for the Motion to

16 Transfer Venue. I don't think the Motion to Transfer

17 Venue is set for today, but he puts it in his -- in his

18 response or his Third Amended Motion to Compel, and I

19 don't understand. He believes that the testimony given in

20 open court on the record and sworn to by his clients can't

21 be used in Motion to Transfer Venue. At some point in

22 time, the Court will have to rule on that motion; and I

23 will be happy to defend that issue.

24 As for costs, counsel fails to properly

25 prepare any cost statements, hasn't made any cost

DARLENE STEIN

Exhibit B Page 22

MOTION TO COMPEL

1 statements, hasn't suffered from any problems other than

2 my sacral iliac joint sprain; and I don't think he would

3 like me sitting in his conference room, taking the

4 narcotics that I was taking and the side effects that go

5 with it.

6 So, he has all of the financial records we

7 believe that exist, delivered by Holtman over our

8 objection. He did not properly serve the accountant --

9 the new accountant in Texas, which is more than 150 miles

10 and -- away, and he doesn't have a right to get anything

11 from him.

12 And as for tax records from the LLC,

13 they're not members. They never have been members.

14 They're not members. They rejected the opportunity to

15 become a member, and that's clear testimony in the

16 Temporary Injunction hearing.

17 So, I think I've covered the waterfront.

18 But as far as tax returns, the State of Texas has made

19 very clear by the Supreme Court and the Court of Appeals

20 in Houston -- I think every Court of Appeals has said it

21 is an abuse of discretion requiring the disclosure of

22 Federal income tax returns if other documents can provide

23 the information necessary.

24 But in order to even search out and get

25 that information, opposing counsel is required to provide

DARLENE STEIN

Exhibit B Page 23

MOTION TO COMPEL

1 the relevancy and materiality that's necessary as to his

2 claims. He has none. He hasn't presented any. He hasn't

3 asked for any. He hasn't said a single word that shows

4 that a tax return, a financial statement, or any of these

5 other intrusive and burdensome matters are necessary for

6 his claims. And the Court should deny his motions in

7 total.

8 Thank you.

9 THE COURT: When do you want to take the

10 depositions?

11 MR. MEADE: Well --

12 MR. MOSSER: I'm sorry, Judge?

13 THE COURT: I'm -- I'm asking your

14 opposing counsel when he wants to take the depositions.

15 MR. MEADE: I knew you were going to ask

16 that, and I think the simplest answer to that is before

17 the Motion to Transfer Venue is heard.

18 THE COURT: Okay.

19 MR. MEADE: The more complex answer is

20 after the week of the 21st of July because I have a trial

21 that entire week. But we are set number one. So, we

22 will go; and I will be done that week because it's a

23 breach of contract case.

24 So, following that week, I only have one

25 day that I have a -- I have a deposition currently set

DARLENE STEIN

Exhibit B Page 24

MOTION TO COMPEL

1 that I'm defending on the 28th of July. Otherwise, I am

2 wide open to -- to take these depositions.

3 THE COURT: Okay. Counsel, you heard

4 that, I assume. So, pick a date after his trial in Judge

5 Englehart's court and not on July -- what?

6 MR. MEADE: 28th.

7 THE COURT: -- 28th that you can produce

8 your people for depositions.

9 MR. MOSSER: I'm looking at the calendar

10 now, Judge.

11 THE COURT: Okay.

12 MR. MOSSER: I would recommend August 4th

13 and 5th, and I -- I would like to also add, Judge, that

14 four of the depositions that were set, two of them -- on

15 two separate days, two of them were set at exactly the

16 same time. And then the next day, two more were set at

17 exactly the same time, which I would discourage that

18 concept as appropriate.

19 MR. MEADE: And -- and here would be my

20 response. If Mr. Mosser would cooperate with me --

21 MR. MOSSER: But the 4th and the 5th are

22 good with me, Judge.

23 MR. MEADE: If Mr. Mosser would cooperate

24 with me a little bit and let me know -- these are an

25 individual -- two individuals and four corporate

DARLENE STEIN

Exhibit B Page 25

MOTION TO COMPEL

1 representatives who may be, and I suspect will be, those

2 same individuals -- could all be taken possibly at the

3 same time or concurrently with each other. But

4 Mr. Mosser hasn't identified who are -- who's going to be

5 the corporate representative. So, I don't know how else

6 to do it.

7 If he will identify who will be the

8 corporate representatives for those entities, I will

9 notice the -- the depositions so that they don't conflict

10 timewise with one other another.

11 MR. MOSSER: As you previously noticed,

12 the doc -- the areas of inquiry, Mr. Rodriguez will be

13 the deponent.

14 MR. MEADE: On all, Mr. Mosser?

15 MR. MOSSER: Yes.

16 MR. MEADE: Okay. Then I will -- I will

17 set it up so that they don't conflict with one another.

18 MR. MOSSER: Thank you.

19 THE COURT: Okay. So, pick, the 4th of

20 the 5th of August?

21 MR. MEADE: It will be both, Your Honor.

22 THE COURT: Oh, both.

23 MR. MEADE: Yeah.

24 THE COURT: Okay. All right. The

25 depositions are set for the 4th and the 5th. And

DARLENE STEIN

Exhibit B Page 26

MOTION TO COMPEL

1 Plaintiff's counsel will send notice, but they are now

2 set. He'll send notice as to time and place, I assume,

3 which I assume you've already -- where -- where are they

4 going to be?

5 MR. MEADE: Well, as Mr. Mosser doesn't

6 have an office here in Houston --

7 THE COURT: Okay.

8 MR. MEADE: -- I'm just going to do them

9 at my offices here in Houston, Your Honor.

10 THE COURT: Right. And I presume that's

11 okay with you, Mr. Mosser?

12 MR. MOSSER: Oh, yes, ma'am, that's fine

13 with me.

14 THE COURT: Okay. Now, as to fees of the

15 nonappearance, I'm not going to order anything at this

16 time. I will consider it later as the case progresses,

17 depending on how discovery goes. So, I will just hold

18 that under advisement.

19 What else was there?

20 MR. MEADE: The objections, which I think

21 lie in the Third Motion to Compel, which are Motions to

22 Compel the responses to discovery that ask for a

23 variety -- it's -- it's a variety of financial

24 information, including bank statements and -- and tax

25 returns.

DARLENE STEIN

Exhibit B Page 27

MOTION TO COMPEL

1 THE COURT: Mr. Mosser, have -- does your

2 client have the bank statements?

3 MR. MOSSER: I'm sorry, Judge?

4 THE COURT: Does your client have the bank

5 statements?

6 MR. MOSSER: I think Mr. Holtman has them,

7 and opposing counsel has collected everything Holtman

8 has. And I would like the Court to order opposing

9 counsel to deliver those documents that he got from the

10 third-party witness Holtman to us.

11 THE COURT: Well, let me ask -- that --

12 that wasn't my question.

13 MR. MOSSER: I understand.

14 THE COURT: My question is: Does your

15 client have them?

16 MR. MOSSER: No. I think -- I think

17 Holtman has them all.

18 THE COURT: So, your client didn't keep a

19 copy?

20 MR. MOSSER: Nobody sends out copies of

21 bank statements any more, Judge.

22 THE COURT: Sure they do. I get them

23 every month.

24 MR. MOSSER: I appreciate that, Your

25 Honor. Let me put it a different way. Many businesses

DARLENE STEIN

Exhibit B Page 28

MOTION TO COMPEL

1 do not get bank statement in paper form.

2 THE COURT: Well, do they get them

3 electronically where they can print them out?

4 MR. MOSSER: My understanding, Your Honor,

5 is that Holtman has all the bank statements.

6 THE COURT: So, your client doesn't get

7 the e-mail saying, Your bank statement is ready to be

8 printed out; or they can't go in and print it out?

9 MR. MOSSER: I haven't made that

10 particular inquiry.

11 THE COURT: Yeah.

12 MR. MOSSER: Because they're with the bank

13 and the accountant.

14 THE COURT: Well, my guess is your client

15 has access to them by -- if they -- if they're not like

16 me and they don't pay to get a paper statement or get a

17 paper statement, they get an e-mail saying, Your bank

18 statement is online. And you just log in, and you can

19 print it out.

20 MR. MOSSER: I understand what the Court

21 is saying, but my suggestion is that they already have

22 all of that stuff. They got it from Holtman.

23 MR. MEADE: Your Honor, if I -- if I could

24 add one -- as Your Honor may recall, they -- the

25 Defendants fired Mr. Holtman, who is the CPA, from the

DARLENE STEIN

Exhibit B Page 29

MOTION TO COMPEL

1 company in March, terminated my client's access and his

2 access to all of the bank accounts. Then -- then hired a

3 new accountant located up in Dallas and identified him as

4 the new CPA, to which Holtman was supposed to and did

5 send all of the information.

6 As far as account statements, the -- it's

7 an ongoing duty, in fact, and they -- they have the

8 duty -- even if, in fact, we had gotten all of the

9 information and -- and Mr. Mosser has just said he doesn't

10 actually know what we've gotten. Even if had gotten all

11 of the information, it wouldn't alleviate their

12 responsibility to produce it, too, because, for example,

13 we might be missing a page of a bank statement. We might

14 want to use a 173, you know, authentication means for the

15 documents.

16 But there are certainly post termination of

17 Mr. Holtman, zero financial records that we have access to

18 but that the Defendants have access, custody, and control

19 over those documents exclusively; and that's what we're

20 asking for.

21 THE COURT: Okay. So --

22 MR. MEADE: Their current accountant has

23 all of it, and they have all of it.

24 THE COURT: All right.

25 MR. MOSSER: Well, we don't really know

DARLENE STEIN

Exhibit B Page 30

MOTION TO COMPEL

1 that.

2 THE COURT: Well, I'm going to overrule

3 your objections and tell you to produce it if it's

4 available to you.

5 MR. MOSSER: From the time that Holtman

6 was terminated? Because they already have everything

7 else.

8 THE COURT: No. Just from what they've

9 requested.

10 MR. MOSSER: And will you order them to

11 deliver us what Holtman has?

12 MR. MEADE: I don't need to be ordered to,

13 Your Honor. I will -- I haven't had him even ask me. If

14 you send me a letter asking for it --

15 THE COURT: Well, he's asking now. Send

16 it to him.

17 MR. MEADE: I'll send it to him, Your

18 Honor.

19 THE COURT: Yeah. I'm not going to order

20 him, but he -- he said on the record now he's going to

21 send you copies of it.

22 MR. MEADE: Well, in fact, if it's

23 easiest, I will upload it onto FPT link; and you can

24 download it from your computer today.

25 THE COURT: You want to do that, Counsel?

DARLENE STEIN

Exhibit B Page 31

MOTION TO COMPEL

1 MR. MOSSER: Which kind of link?

2 THE COURT: I don't know. It's over my

3 head.

4 MR. MEADE: I will suggest a couple of

5 means by which I can deliver the documents to you,

6 Mr. Mosser.

7 THE COURT: He will -- he will get them to

8 you.

9 MR. MEADE: You can choose the most

10 convenient means to you.

11 THE COURT: Okay. On the -- I've looked

12 at the interrogatories, your objections are overruled.

13 What else have we got?

14 MR. MEADE: The requests for production

15 objections that were --

16 THE COURT: Yeah, and they're overruled,

17 also.

18 Anything else?

19 MR. MEADE: And -- nothing else unless

20 Your Honor -- and I -- and from what Your Honor said

21 earlier, I think you're not inclined to appoint a master

22 at this --

23 THE COURT: I'm not.

24 MR. MEADE: -- point in the discovery.

25 So, I won't --

DARLENE STEIN

Exhibit B Page 32

Motion to Compel

1 THE COURT: And we will reset --

2 MR. MEADE: -- belabor the point.

3 THE COURT: -- the motion for change of

4 venue until after the deposition.

5 MR. MEADE: Thank you, Your Honor.

6 Nothing else today.

7 THE COURT: Anything else?

8 MR. MOSSER: No, Your Honor.

9 THE COURT: Counsel, I hope you feel

10 better. I know --

11 MR. MOSSER: Thank you very much, Judge.

12 THE COURT: I know how it feels to get

13 older, but...

14 MR. MOSSER: I appreciate it, Judge.

15 THE COURT: Okay. Thank you.

16 MR. MOSSER: Yes, ma'am.

17 MR. MEADE: Thank you. Have a good week,

18 Your Honor.

19 THE COURT: Thank you.

20 (Proceedings concluded.)

DARLENE STEIN

Exhibit B Page 33

Motion to Compel

1 STATE OF TEXAS

2 COUNTY OF HARRIS

3 I, DARLENE STEIN, Official Court Reporter in and

4 for the 133rd District Court of Harris, State of

5 Texas, do hereby certify that the above and foregoing

6 contains a true and correct transcription of all

7 portions of evidence and other proceedings requested

8 in writing by counsel for the parties to be included

9 in this volume of the Reporter's Record in the

10 above-styled and numbered cause, all of which

11 occurred in open court or in chambers and were

12 reported by me.

13 I further certify that this Reporter's Record of

14 the proceedings truly and correctly reflects the

15 exhibits, if any, offered by the respective parties.

16 I further certify that the total cost for the

17 preparation of this Reporter's Record is $312.00 and

18 was paid by Mr. Andrew Meade.

/s/Darlene Stein_________

20 DARLENE STEIN, CSR

Texas CSR 2557

21 Official Court Reporter

133rd District Court

22 Harris County, Texas

201 Caroline, 11th Floor

23 Houston, Texas 77002

Telephone: (713) 368-6402

24 Expiration: 12/31/2014

DARLENE STEIN

Exhibit B Page 34

From:MOSSER HILL PLLC 8172 267 5072 07/12/2014 10:39 1235 P.001/001

1 '11 n DALLAS PARKWAY, SLTTfE 29() • D:\LLAS, TEXA.S :.)2.'18 • 9':::-- 33-3223 • FAX ~P2-26"7 -)(Y-;2

1\IOSSERLAW.COM

July 12, 2014

Via Facsimlile: 832-476-5460

Kelly Stephens

P.O. Box 79734

Houston, Texas 77279

RE: Los Cucos VIII, Inc. Et al., v. B650 Frisco LLC, et al.

Dear Mr. Stephens:

Apparently my prior letter was too subtle, I will try to be more blunt.

There is no "currently scheduled August 1, 2014 inspection" because you have failed to

serve a proper request pursuant to the rules.

We have never been served with an order from the court to produce documents. To the

extent our objections were overruled, you are in possession of the responsive

documents

I will not withdraw my objection to your improper subpoena. To the extent Mr. Verucchi

has documents, you have those documents in your possession.

Respectfully, MoSSER LA.W PLLC~

/s/ Nicholas D. Mosser

Nicholas D. Mosser

Exhibit B

Exhibit 2 Page 35

611112014 2:07:32 PM

Chris Daniel -District Clerk

Harris County

Envelope No: 1510270

By: ARRIAGA, AMANDA R

Cause No. 2014-10896

LOS CUCOS MEXICAN CAFE VIII,

fNC.; LOS CUCOS MEXICAN CAFE IV, §

§ IN THE DISTRICT COURT OF f2

fNC.; MANUEL CABRERA; AND

SERGIO CABRERA,

1 (lfA.D)(

STP~)'

Plaintiffs, §

v. §

8650 FRISCO, LLC D/B/A ESTILO §

GAUCHO BRAZILIAN STEAKHOUSE; §

MANDONA, LLC; GALOVELHO, LLC; §

BAHTCHE, LLC; CLAUDIO NUNES; and §

DAVID JEIEL RODRIGUES, §

Defendants. § 133rd JUDICIAL DISTRICT

ORDER ON DEFENDANTS' MOTd~TO STAY ALL MATTERS

PLAINTIFFS' THII~>TION TO COMPEL

The Court, having considered !®fendants' Motion to Stay All Matters and Plaintiffs'

Third Motion to Compel and th~tive responses, arguments of counsel, and evidence, has

determined that Defendants' ~on should be and is hereby DENIED and that Plaintiffs' motion

should be and is hereby G~ED. Specifically:

The Court DE~gefendants' request to stay all matters.

. The Cou!J ~~y OVERRULES Defendants' objections to Plaintiffs' Requests for

Production No,2, 3, 4, 5, 7, and 8. IT IS ORDERED that Defendants shall produce all

document~onsive to Requests for Production Nos. 1, 2, 3, 4, 5, 7, and 8 within 24 hours of

the entry of this order.

Th~om t Fllq!JS that Defeudams' co,msernasahused the discovery_pr~'Sis_fiil:g

l'(oM:;it;A-';-enr-:ln~ermmea that the followillg sanctions are appropriate~ satisfy the legitimate-

Exhibit B

Exhibit 3 Page 36

~I 1 A purposes of discovery sanctions, and are nenher more 1101 less stringent than nece:.:.ary to-.

11\j-/ '-- aceef!!plishjtT7}Se purpes&.-

AcsorQ_ingly, IT IS ORDERED that all---eXpenses of dtscovery assocmtecrwith th~

ooderlying motiotnl1101fie deposition of each of the Defenda"""fitrin aecordance with this oreer an:~

e MOSSER l.AW fiRM shall pay to~~

$ within I 0 days of the sig11iflg ei.th.iuJrder.~ (J

·rr- IS FURTHER ORDERED that the fullo"i"g fucts a~ABL!SHBD fi5r1rtl---...

I'm poses in thiS hbgatwn: that Defendants havo <on"oted to ven;~arris Coun~s. -

IT IS FURTHER ORDERED that failure to compl;~Q this Order may result in the

further imposition of sanctions or a holding of contempt, ~hable by fin~ or imprisonment or -

both. ;{J__o_ c\~ ~ &~MJ!~r:J1/r

o.* t;:cop.JU . ~ v---1'

DATED: 1-- J- <(- d!J)J/

Exhibit B Page 37

3/30/2015 4 07 31 PM

Chr1s Damel - D1stnct Clerk

Hams County

Envelope No 4698208

By GENTRY, EUNIECY M

Fsled 3/30/2015 4 07 31 PM

CAUSE NO 2014-10896

LOS CUCOS MEXICAN CAFE VIII, § IN THE DIS1 RICT COURT OF

INC , LOS CUCOS MEXICAN §

~ jj)x

CAFE IV, INC , MANUEL §

CABRERA, and SERGIO §

CABRERA,

Plflmtiffs

* aPtPK

v §

§ ~=~r#i

HARRIS COUN 1 ~XAS

8650 FRISCO, LLC D/B/A ESTILO ~

GAUCHO BRAZILIAN § ~

STEAKHOUSE, MANDONA, LLC,

GALOVELHO, LLC, BAH1 CIIE,

LLC, CLAUDIO NUNES, and

DAVJD JEIEL RODRIGUES, §

DefendalltY § 133r~DICIAL DISTRICT

OROER GRANTING IN J>ART A INGINPART

PLAINTIFFS' MOTION TO ENFOR

On thts dav the Court came to constder pJ.il~~ffs Sec.ond Mohon to Enforce the Court'&

- ~~

Order and for Sandton~ (lhe "Mot.Ion") ~Y cons1denng lhe facts, law, and argument of

<..ounscl, the Court has dec1ded to grant ~~otlontn part and deny the Mohon m pmt

Defendant!:. are ordered to ~e all documents tdenttfied m the CoUtt's July 28, 2014

Order on Detendant~ MottonJRGay All Mattml> and Plamhffs' Il11rd Matton to Compel lhts

p10dm.tton must be made~lo p m on Wednesday, Apttl 1, 2015 to both Sam Haten and

Kelly Stephen::, ~U

Plmnt1f~~Dcfendants' request; ~or sancuons dlC dcmed

s:~J~ilieL-day or~ ~~

Exhibit B

Exhibit 4 Page 38

CAUSE NO 2014-10896

LOS CUCOS MEXICAN CAFE Vill,

INC , LOS CUCOS MEXICAN

IN THE DISTRICT COURT OF f,Z -

CAFE IV, INC , MANUEL §

cf Mr£u=x

CABRERA, and SERGIO §

CABRERA, §

Plamtiffs § /tTFE)(

§ ~

v § (}

§ HARRIS CO~, TEXAS ""'

8650 FRISCO, LLC D/B/A ESTILO § 0~ ~ 9

GAUCHO BRAZILIAN § ~ CP

STEAKHOUSE, MANDONA, LLC, § 0~

GALOVELHO, LLC, BAHTCHE, § «:::}~

LLC, CLAUDIO NUNES, and § ~ 0

DAVID JEIEL RODRIGUES, § 0~ ~

Defendants § Ul~ JUDICIAL DISTRICT&

ftj(9}

Order Grantm

Third MotiOn To En~ he Court's Order

On thrs day the Court came to con~Wlamtrffs' Thrrd Matron to Enforce the Court's

Order (the "Motion") After consrdenn~e facts, law, and argument of counsel, the Court has

decrded to GRANT the Matron nt~nts Will produce all documents responsive to Requests

for Production 1, 2, 3, 4, 5, 7~Q8 contamed m Exhrbrt 1 to the Mohon (the "Documents")

~0.

Thrs productron must be ~hrough hand delivery dunng normal busmess hours to Andrew

Meade or Samuel H~

Gat HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smrth,

o~j

Houston, Texas 7f!;Qj. ·'

The ~Q fiuther finds that Defendants VIOlated three of the Court's pnor orders by

farlmg to ~uce responsrve documents Thrs misconduct Is part of a larger pattern of Improper

objectwns, mentless motions, frrvolous arguments, fergned rgnotance of baste factual and legal

Issues, and drshonest gamesmanship m vrolatwn of Texas Rule of Crvll Procedure 13 Pt evrous

warnmgs from the Court have been meffectrve m forcmg Defendants to comply wrth the Court's

Exhibit B

Exhibit 5 Page 39

orders or with Texas law, and another warnmg IS unlikely to achieve better results Moreover,

another warnmg would only encourage Defendants to contmue their egregwus behaviOr m the

future

Accordmgly, the Court ltnposes the followrng sanctiOns

•

Defendants may not conduct additional discovery m this matter u~~representattve

of 8650 Fnsco, LLC stgns a sworn affidavit of compliance wtth ~~rder,

• Defendants shall pay $ iV()V, f30 to Plamtlffs fot; ~ costs mcurred m

secunng productiOn of the. ocuments, and ~

• the Issue of whether Plamtrffs face Irreparable harm ~~e lack of the note/secunty

requrred by the parties' contract IS conclusively es~Yed m Plarntiffs' favor

Should Defendants fall to comply w1th this order w~ forty~eight hours of the stgnature

hereof, Defendants and their attorneys of record

wtl~ asked to personally appear and show

cause as to why they should not be held m cont~~th1s Court

~ru

Signed on the _Jj_ day of 4f:rt?J<f!2 ,2015

a~ ~c-k9J

ug~~

o~ry;

Exhibit B Page 40

HAWASHM EA DE

HAW ASH MEADE GASTON NEESE & CICACK LLP

Samuel B. Haren

sharen@hmgnc.com

713-658-9001 (phone)

713-658-9011 (fax)

April30, 2015

Via Facsimile :

(469) 626-1073

Mr. James C. Mosser

Mr. Nicholas D. Mosser

Mosser Law PLLC

17110 Dallas Parkway, Suite 290

Dallas, Texas 75248

Re: Cause No. 2014-10896, Los Cucos Mexican Cafe VIII, Inc. et al. v. 8650 Frisco, LLC et

al. in the 133rd Judicial District Court of Ranis County, Texas

Dear Mr. Mosser:

As you aware, the Comt granted Plaintiffs' Third Motion to Enforce the Court's Order and For

Sanctions on April 27, 2015. In so doing, the Comt ordered you and your client to (1) hand-deliver the

requested documents to the offices ofHawash Meade Gaston Neese & Cicack LLP and (2) pay a $1,000

sanction to Plaintiffs. The Comt fmther ordered that, "should Defendants fail to comply with this order

within forty-eight hours of the signature hereof, Defendants and their attorneys of record will be asked

to personally appear and show cause as to why they should not be held in contempt ofthis Court."

As of the transmission hereof, neither the document production nor the monetary sanction have

been received. If we have not received the documents and payment by noon on Monday, May 4, 2015,

we will be forced to file a fomth motion to enforce the Court's order and seek additional sanctions.

Yours truly,

2118 Smith Street 1 Houston, Texas 77002

Main Phone: (713) 658-9001 I Main Facsimile: (713) 658-9011

Exhibit B

Exhibit 6

www. hmgll p . com Page 41

MOSSER LAW PLLC

2805 DALLAS PARKWAY, SUITE 222 • PLANO, TEXAS 75093 • 972-733-3223 • FAX: 469-626-1073

MOSSER LAW .COM

May 1, 2015

Via eFile

Kelly Stephens

P.O. Box 79734

Houston, Texas 77279

Telephone: 1-281-394-3287

Facsimile: 1-832-476-5460

kstephens@stephensdominitz.com

RE: Los Cucos VIII, Inc. Et al., v. 8650 Frisco LLC, et al.

Dear Mr. Stephens:

We are in receipt of Mr. Haren’s letter dated April 30, 2015. W e have been served no

signed orders of any court requiring date certain compliance or any other required

action.

Respectfully, MOSSER LAW PLLC

/s/ Nicholas D. Mosser

Nicholas D. Mosser

Exhibit B

Exhibit 7 Page 42

HAWASH MEADE

HAWASH MEADE GASTON NEESE & CJCACK LLP

Samuel B. Haren

sharen@hmgnc.com

713-658-9001 (phone)

713-658-9011 (fax)

May 3, 2015

Via Facsimile:

(469) 626-1073

Mr. James C. Mosser

Mr. Nicholas D. Mosser

Mosser Law PLLC

17110 Dallas Parkway, Suite 290

Dallas, Texas 75248

Re: Cause No. 2014-10896, Los Cucos Mexican Cafe VIIL Inc. et al. v. 8650 Frisco, LLC et

al. in the 133rd Judicial District Comt ofHanis County, Texas

Dear Mr. Mosser:

The Comt' s order is attached. As you are aware, it was readily available to anyone from the

Court's clerk and to any licensed attomey from the District Clerk's website. As stated in my previous

letter, if you have not complied with the Court's order by noon on Monday, May 4, 2015, we will file a

fomth motion to enforce the Comt's order.

_;'_ff

~-H-a-re_n_ __

2118 Smith Street I Houston, Texas 77002

Main Phone: (713) 658-9001 I Main Facsimile: (713) 658-9011

www. hmg II p.com

Exhibit B

Exhibit 8 Page 43

CAUSE NO 2014-10896

LOS CUCOS MEXICAN CAFE Vill,

INC , LOS CUCOS MEXICAN

IN THE DISTRICT COURT OF f,Z -

CAFE IV, INC , MANUEL §

cf Mr£u=x

CABRERA, and SERGIO §

CABRERA, §

Plamtiffs § /tTFE)(

§ ~

v § (}

§ HARRIS CO~, TEXAS ""'

8650 FRISCO, LLC D/B/A ESTILO § 0~ ~ 9

GAUCHO BRAZILIAN § ~ CP

STEAKHOUSE, MANDONA, LLC, § 0~

GALOVELHO, LLC, BAHTCHE, § «:::}~

LLC, CLAUDIO NUNES, and § ~ 0

DAVID JEIEL RODRIGUES, § 0~ ~

Defendants § Ul~ JUDICIAL DISTRICT&

ftj(9}

Order Grantm

Third MotiOn To En~ he Court's Order

On thrs day the Court came to con~Wlamtrffs' Thrrd Matron to Enforce the Court's

Order (the "Motion") After consrdenn~e facts, law, and argument of counsel, the Court has

decrded to GRANT the Matron nt~nts Will produce all documents responsive to Requests

for Production 1, 2, 3, 4, 5, 7~Q8 contamed m Exhrbrt 1 to the Mohon (the "Documents")

~0.

Thrs productron must be ~hrough hand delivery dunng normal busmess hours to Andrew

Meade or Samuel H~

Gat HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smrth,

o~j

Houston, Texas 7f!;Qj. ·'

The ~Q fiuther finds that Defendants VIOlated three of the Court's pnor orders by

farlmg to ~uce responsrve documents Thrs misconduct Is part of a larger pattern of Improper

objectwns, mentless motions, frrvolous arguments, fergned rgnotance of baste factual and legal

Issues, and drshonest gamesmanship m vrolatwn of Texas Rule of Crvll Procedure 13 Pt evrous

warnmgs from the Court have been meffectrve m forcmg Defendants to comply wrth the Court's

Exhibit B Page 44

orders or with Texas law, and another warnmg IS unlikely to achieve better results Moreover,

another warnmg would only encourage Defendants to contmue their egregwus behaviOr m the

future

Accordmgly, the Court ltnposes the followrng sanctiOns

•

Defendants may not conduct additional discovery m this matter u~~representattve

of 8650 Fnsco, LLC stgns a sworn affidavit of compliance wtth ~~rder,

• Defendants shall pay $ iV()V, f30 to Plamtlffs fot; ~ costs mcurred m

secunng productiOn of the. ocuments, and ~

• the Issue of whether Plamtrffs face Irreparable harm ~~e lack of the note/secunty

requrred by the parties' contract IS conclusively es~Yed m Plarntiffs' favor

Should Defendants fall to comply w1th this order w~ forty~eight hours of the stgnature

hereof, Defendants and their attorneys of record

wtl~ asked to personally appear and show

cause as to why they should not be held m cont~~th1s Court

~ru

Signed on the _Jj_ day of 4f:rt?J<f!2 ,2015

a~ ~c-k9J

ug~~

o~ry;

Exhibit B Page 45

Cause No. 2014-10896

Los Cucos Mexican Cafe VIII, Inc.; In the District Court of

Los Cucos Mexican Cafe IV, Inc.;

Manuel Cabrera; and Sergio

Cabrera,

Plaintiffs

v. Harris County, Texas

8650 Frisco, LLC d/b/a Estilo Gaucho

Brazilian Steakhouse; Mandona,

LLC; Galovelho, LLC; Bahtche,

LLC; Claudio Nunes; and David Jeiel

Rodrigues, 133rd Judicial District

Defendant

Notice of Hearing

Please be advised that the Court will hold an oral hearing on Plaintiffs’ Fourth Motion to

Enforce the Court’s Order and for Sanctions on Monday, May 18, 2015, at 3:00 p.m., in the 133rd

Judicial District Court of Harris County, Texas.

Respectfully submitted,

Hawash Meade Gaston

Neese & Cicack LLP

/s/ Samuel B. Haren

Andrew K. Meade

State Bar No. 24032854

Jeremy M. Masten

State Bar No. 24083454

Samuel B. Haren

State Bar No. 24059899

2118 Smith Street

Houston, Texas 77002

713-658-9001 (phone)

713-658-9011 (fax)

ameade@hmgnc.com

jmasten@hmgnc.com

sharen@hmgnc.com

Exhibit B Page 46

Stephens & Domnitz, PLLC

Kelly D. Stephens

State Bar No. 19158300

P.O. Box 79734

Houston, Texas 77279-9734

281-394-3287 (phone)

832-476-5460 (fax)

kstephens@stephensdomnitz.com

Cox Smith Matthews Incorporated

David Kinder

State Bar No. 11432550

112 East Pecan Street, Suite 1800

San Antonio, Texas 78205

210-554-5500 (phone)

210-226-8395 (fax)

Attorneys for Plaintiffs

Exhibit B Page 47

Certificate of Service

A true and correct copy of the foregoing has been served on all counsel of record via

electronic service on May 4, 2015.

James C. Mosser

Nicholas D. Mosser

Mosser Law PLLC

17110 Dallas Pky, Suite 290

Dallas, Texas 75248

/s/ Samuel B. Haren

Samuel B. Haren

Exhibit B Page 48

Cause No. 2014-10896

Los Cucos Mexican Cafe VIII, Inc.; In the District Court of

Los Cucos Mexican Cafe IV, Inc.;

Manuel Cabrera; and Sergio

Cabrera,

Plaintiffs

v. Harris County, Texas

8650 Frisco, LLC d/b/a Estilo Gaucho

Brazilian Steakhouse; Mandona,

LLC; Galovelho, LLC; Bahtche,

LLC; Claudio Nunes; and David Jeiel

Rodrigues, 133rd Judicial District

Defendant

Order Granting Plaintiffs’ Fourth Motion To Enforce The Court’s Order

On this day the Court came to consider Plaintiffs’ Fourth Motion to Enforce the Court’s

Order (the “Motion”). After considering the facts, law, and argument of counsel, the Court has

decided to GRANT the Motion.

The Court finds that

 Defendants and their counsel have wasted substantial amounts of the Court’s and

Plaintiffs’ time by filing frivolous motions, making bad-faith arguments, and feigning

ignorance of basic factual and legal issues;

 Defendants and their counsel have violated their discovery obligations by lodging

frivolous objections, making inadequate productions, refusing to comply with the

Court’s orders, and asking third parties to destroy evidence;

 Defendants’ counsel has acted unprofessionally to the Court, the Court’s staff, and

Plaintiffs’ counsel throughout this litigation;

 Defendants have failed or refused to comply with four prior orders from this Court; and

Exhibit B Page 49

 Defendants did not comply with this Court’s order even after sanctions were entered

and a show cause order was threatened.

The Court hereby imposes the following sanctions:

 Defendants shall pay a sanction of $_________ to Plaintiffs. This sanction is based on

the reasonable and necessary attorneys’ fees incurred by Plaintiffs in attempting to

secure production of the documents Defendants have failed to produce. This sanction

is to be paid by cashier’s check to Hawash Meade Gaston Neese & Cicack LLP’s

IOLTA Account. The check shall be hand-delivered to the offices of Hawash Meade

Gaston Neese & Cicack LLP during normal business hours within forty-eight hours of

the entry of this order.

 James Mosser, Nicholas Mosser, Claudio Nunes, and David Jeiel Rodrigues shall

appear in this Court on the ____ day of _____________________, 2015 at __:____

__.m. and show cause as to why they should not be held in contempt.

 Defendants shall not be entitled to conduct or participate in any further discovery in

this case.

This order does not replace or supplant the Court’s April 27, 2015 Order Granting

Plaintiffs’ Third Motion to Enforce the Court’s Order. All sanctions and required imposed therein

remain in force.

Signed at __:____ __.m. on the _____ day of _______________________, 2015.

Judge Presiding

Exhibit B Page 50

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.