# in Re 8650 Frisco, LLC D/B/A Estilo Gaucho Brazilian Steakhouse, Mandona, LLC, Galovelho, LLC, Bahtche, LLC, Claudio Nunes and David Jeiel Rodrigues > Texas Court of Appeals, 1st District (Houston) · May 7, 2015 URL: https://www.frixlaw.com/law-library/cases/4054840 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** May 7, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4054840 ## Opinion text ACCEPTED 01-15-00423-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 5/7/2015 11:44:52 AM CHRISTOPHER PRINE CLERK No. 01-15-00423-CV st FILED IN 1 COURT OF APPEALS HOUSTON, TX IN THE MAY 7, 2015 CHRISTOPHER A. PRINE, CLERK FIRST JUDICIAL DISTRICT COURT OF APPEALS at HOUSTON, TEXAS IN RE 8650 FRISCO, LLC d/b/a ESTILO GAUCHO BRAZILIAN STEAKHOUSE, MANDONA, LLC, GALOVELHO, LLC, BAHTCHE, LLC, CLAUDIO NUNES, and DAVID JEIEL RODRIGUES, Relators ORIGINAL PROCEEDING FROM THE 133rd JUDICIAL DISTRICT COURT OF HARRIS COUNTY, TEXAS EMERGENCY RELIEF REQUESTED MOTION FOR EMERGENCY TEMPORARY RELIEF TO STAY ACTION BY THE TRIAL COURT TO THE HONORABLE FIRST COURT OF APPEALS: Relators, 8650 Frisco LLC, Mandona, LLC, Galovelho, LLC, Bahtche, LLC, Claudio Nunes, and David Jeiel Rodrigues (hereinafter “Relators”) file this, the Relators’ Motion for Temporary Relief and would respectfully show the Court as follows: INTRODUCTION 1. Relators are 8650 Frisco LLC, Mandona, LLC, Galovelho, LLC, RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 1 OF 8 Bahtche, LLC, Claudio Nunes, and David Jeiel Rodrigues. 2. The Real Parties In Interest are Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera 3. Respondent is the Honorable Jaclanel McFarland, Judge Presiding of the 133rd Judicial District Court, located in Harris County. 4. Relators filed their Petition for Writ of Mandamus on May 6, 2015, in the above captioned case. 5. Relators attach a certificate of compliance certifying that on May 7, 2015, they notified respondent and real parties in interest by expedited means that a motion for temporary relief has been filed. Tex. R. App. P. 52.10(a). 6. The original proceeding in which a petition for writ of mandamus was filed complains of two orders issued by the Respondent compelling discovery responses and imposing sanctions on the Relators for failure to comply with previous discovery orders. 7. Respondent’s April 1, 2015 order compelled discovery of documents which have no relevance to the live pleading on file with the trial court. 8. Additionally, Respondent’s April 27, 2015 Order included sanctions barring Relators from further discovery until the documents are RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 2 OF 8 produced, taxing costs incurred in securing production of the documents to the Relators, and conclusively establishing an unpleaded issue in favor of the Real Parties in Interest. 9. Finally the order demanded compliance by hand delivery of responsive documents to the office of Counsel for the Real Parties in Interest forty- eight hours after the Respondent signed the order. Said office is in Houston, and is 260 miles from the Office of Counsel for Relators. The documents for which discovery was compelled had been served pursuant to TEX. R. CIV. P. 21 and 21a twice previously. 10. Respondent signed this order in the presence of Counsel for Real Parties in Interest but outside the presence of Relators’ attorney. 11. On May 3, 2015, Counsel for Real Parties in Interest served the April 27, 2015 order on Relators’ attorney requiring compliance by April 29, 2015. Counsel then demanded compliance by noon on May 4, 2015. This letter is attached to the motion as “Exhibit A” and is incorporated in haec verba. 12. On May 4, 2015, Counsel for Real Parties in Interest filed with the Respondent and served on Relators’ attorneys its Fourth Motion to Enforce the Court’s Order in which the Real Parties in Interest RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 3 OF 8 demanded that the Respondent strike the Relators’ pleadings for failure to comply. The Fourth Motion to Enforce the Court’s Order is attached to this motion as “Exhibit B” and is incorporated in haec verba. The Real Parties in Interest set this matter for hearing on May 18, 2015. ARGUMENT & AUTHORITIES 13. The Court may grant temporary relief pending its determination of an original proceeding. Tex. R. App. P. 52.10(b). 14. This emergency stay is necessary to maintain the status quo of the parties and to preserve the Court’s jurisdiction to consider the merits of the original proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex. App.—San Antonio 1995, orig. proceeding). Relators filed their Petition in the above captioned case on May 6, 2015, seeking relief from both the April 1, 2015 order and the April 27, 2015 order, both of which the Real Parties In Interest seek to enforce in their Fourth Motion to Enforce the Court’s Order. 15. The issues at the heart of Relators’ Petition for Writ of Mandamus are the same issues on which the Real Parties’ in Interest Motion to Enforce are based. See Exhibit B. Granting the Petition for Writ of Mandamus would dispose the issues in the Petition and in the Fourth Motion to RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 4 OF 8 Enforce the Court’s Order simultaneously. A stay maintains the state of affairs between the parties, and prevents irreparable harm from accruing to either side, pending the court’s decision on the Relator’s Petition for Writ of Mandamus. 16. Relator attaches an unsworn declaration to establish facts that are not included in the appellate record, are not known to the Court in its official capacity, and are not within the personal knowledge of the attorney signing this motion. Tex. R. App. P. 10.2. CONCLUSION 9. Because the issues raised by the Relators in above-captioned original proceeding address all of the issues raised by the Real Parties in Interest in their Fourth Motion to Compel, a stay would operate to prevent needless expense to both parties and the trial court and would resolve the ongoing discovery dispute. PRAYER WHEREFORE, PREMISES CONSIDERED, the Relators ask the Court for an emergency stay of the Respondent’s consideration of Real Parties’ in Interest Fourth Motion to Enforce until such time as this Court has had an opportunity to review the merits of Relators’ above-captioned Petition for Writ of RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 5 OF 8 Mandamus. This stay will maintain the status quo of the parties and preserve the Court’s jurisdiction to consider the merits of relator’s original proceeding. RESPECTFULLY SUBMITTED, MOSSER LAW PLLC /s/ James C. Mosser James C. Mosser Texas Bar No. 00789784 Nicholas D. Mosser Texas Bar No. 24075405 Paul J. Downey Texas Bar No. 24080659 2805 Dallas Parkway, Suite 220 Plano, Texas 75093 Tel. (972) 733-3223 Fax (469) 626-1073 courtdocuments@mosserlaw.com LAWYERS FOR RELATORS CERTIFICATE OF COMPLIANCE 1 In accordance with Tex. R. App. P. 52.10, the relators have notified all parties by expedited means that a motion for temporary relief has been or would be filed in this court. The following parties were notified: Respondent Honorable Jaclanel McFarland Judge Presiding 133rd Judicial District Court Harris County Civil Courthouse 201 Caroline, 11th Floor Houston, Texas 77002 Tel. 713-368-6200 RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 6 OF 8 Real Parties In Interest Los Cucos Mexican Café VIII, Inc.; Los Cucos Mexican Café IV, Inc.; Manuel Cabrera; and Sergio Cabrera, represented by Stephens & Domnitz, PLLC Kelly Stephens Texas Bar No. 19158300 P.O Box 79734 Houston, Texas 77279-9734 Tel. 281-394-3287 Fax 832-476-5460 kstephens@stephensdomnitz.com /s/ Paul J. Downey Paul J. Downey CERTIFICATE OF COMPLIANCE 2 I certify that this Motion for Leave to File Appellee’s Sur-Reply complies with the word limit of Tex. R. App. P. 9.4 because it contains 867 words, excluding the parts of the motion exempted by Tex. R. App. P. 9.4. I relied on the word count feature of Corel WordPerfectX6 to reach this number /s/Paul J. Downey Paul J. Downey CERTIFICATE OF CONFERENCE I certify that on May 7, 2015, I attempted to confer with Kelly Stephens, the attorney-in-charge for the Real Parties’ In Interest litigation efforts in accordance with TEX. R. APP. P. 10.1(a)(5). He failed to respond to the request prior to the filing of this motion. /s/ Nicholas D. Mosser Nicholas D. Mosser RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 7 OF 8 CERTIFICATE OF SERVICE In accordance with TEX. R. APP. P. 9.5, I certify that on May 7, 2015, I served a copy of this Motion for Temporary Relief on the following parties: Respondent Honorable Jaclanel McFarland Judge Presiding 133rd Judicial District Court Harris County Civil Courthouse 201 Caroline, 11th Floor Houston, Texas 77002 Tel. 713-368-6200 Real Parties In Interest Los Cucos Mexican Café VIII, Inc.; Los Cucos Mexican Café IV, Inc.; Manuel Cabrera; and Sergio Cabrera, represented by Stephens & Domnitz, PLLC Kelly Stephens Texas Bar No. 19158300 P.O Box 79734 Houston, Texas 77279-9734 Tel. 281-394-3287 Fax 832-476-5460 kstephens@stephensdomnitz.com /s/ Paul J. Downey Paul J. Downey RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 8 OF 8 CAUSE NO. 2014-10896 LOS CUCOS MEXICAN CAFE VIII, § IN THE DISTRICT COURT INC., LOS CUCOS MEXICAN § CAFE IV, INC., MANUEL § CABRERA, and SERGIO § CABRERA § PLAINTIFFS, § § V. § 133rd JUDICIAL DISTRICT § 8650 FRISCO LLC, MANDONA § LLC, GALOVELHO LLC, § BAHTCHE LLC, CLAUDIO § NUNES, AND DAVID JEIEL § RODRIGUES § DEFENDANT. § OF HARRIS COUNTY, TEXAS UNSWORN DECLARATION OF PAUL J. DOWNEY 1. My name is Paul J . Downey. I am of sound mind, capable of making this unsworn declaration, and personally acquainted with the facts herein stated . 2. I am a lawyer at Mosser Law, PLLC. 3. I am one of the custod ians of the records at Mosser Law, PLLC. 4. Attached hereto are the following 50 pages of records from Mosser Law, PLLC. These records are kept by Mosser Law, PLLC in the regular course of business, and it was in the regular course of business of Mosser Law, PLLC, that an employee or representative of Mosser Law PLLC, with knowledge of the act or event recorded , made the records. 5. The records were made at or near the time of the event, or reasonably soon thereafter. 6. The records attached hereto are exact duplicates of the originals and contain: a. Exhibit A- Letter from Real Parties in Interest Dated May 3, 2015; b. Exhibit B - Real Parties' in Interest Fourth Motion to Enforce the Court's Order, filed May 4, 2015 My name is Paul James Downey, my date of birth is January 19, 1984, and my address is C/0 Mosser Law, PLLC, 2805 Dallas Parkway, Suite 222, Plano, Texas 75093, United States of America . I declare under penalty of perjury that the foregoing is true and correct. Executed in Collin County, State of Texas on the 5th Day of May, 2015. P/(2z_ Z ~ PauiJ. Er~ ~ HAWASH MEADE HAWASH MEADE GASTON NEESE & CJCACK LLP Samuel B. Haren sharen@hmgnc.com 713-658-9001 (phone) 713-658-9011 (fax) May 3, 2015 Via Facsimile: (469) 626-1073 Mr. James C. Mosser Mr. Nicholas D. Mosser Mosser Law PLLC 17110 Dallas Parkway, Suite 290 Dallas, Texas 75248 Re: Cause No. 2014-10896, Los Cucos Mexican Cafe VIIL Inc. et al. v. 8650 Frisco, LLC et al. in the 133rd Judicial District Comt ofHanis County, Texas Dear Mr. Mosser: The Comt' s order is attached. As you are aware, it was readily available to anyone from the Court's clerk and to any licensed attomey from the District Clerk's website. As stated in my previous letter, if you have not complied with the Court's order by noon on Monday, May 4, 2015, we will file a fomth motion to enforce the Comt's order. _;'_ff ~-H-a-re_n_ __ 2118 Smith Street I Houston, Texas 77002 Main Phone: (713) 658-9001 I Main Facsimile: (713) 658-9011 www. hmg II p.com Exhibit A Page 1 CAUSE NO 2014-10896 LOS CUCOS MEXICAN CAFE Vill, INC , LOS CUCOS MEXICAN § § IN THE DISTRICT COURT OF f,Z - CAFE IV, INC , MANUEL § cf Mr£u=x * CABRERA, and SERGIO § CABRERA, § Plamtiffs § /tTFE)( § ~ v § (} § HARRIS CO~, TEXAS ""' 8650 FRISCO, LLC D/B/A ESTILO § 0~ ~ 9 GAUCHO BRAZILIAN § ~ CP STEAKHOUSE, MANDONA, LLC, § 0~ GALOVELHO, LLC, BAHTCHE, § «:::}~ LLC, CLAUDIO NUNES, and § ~ 0 DAVID JEIEL RODRIGUES, § 0~ ~ Defendants § Ul~ JUDICIAL DISTRICT& ftj(9} Order Grantm Third MotiOn To En~ he Court's Order On thrs day the Court came to con~Wlamtrffs' Thrrd Matron to Enforce the Court's cg Order (the "Motion") After consrdenn~e facts, law, and argument of counsel, the Court has decrded to GRANT the Matron nt~nts Will produce all documents responsive to Requests for Production 1, 2, 3, 4, 5, 7~Q8 contamed m Exhrbrt 1 to the Mohon (the "Documents") ~0. Thrs productron must be ~hrough hand delivery dunng normal busmess hours to Andrew Meade or Samuel H~ Gat HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smrth, o~j Houston, Texas 7f!;Qj. ·' The ~Q fiuther finds that Defendants VIOlated three of the Court's pnor orders by farlmg to ~uce responsrve documents Thrs misconduct Is part of a larger pattern of Improper objectwns, mentless motions, frrvolous arguments, fergned rgnotance of baste factual and legal Issues, and drshonest gamesmanship m vrolatwn of Texas Rule of Crvll Procedure 13 Pt evrous warnmgs from the Court have been meffectrve m forcmg Defendants to comply wrth the Court's Exhibit A Page 2 orders or with Texas law, and another warnmg IS unlikely to achieve better results Moreover, another warnmg would only encourage Defendants to contmue their egregwus behaviOr m the future Accordmgly, the Court ltnposes the followrng sanctiOns • * Defendants may not conduct additional discovery m this matter u~~representattve of 8650 Fnsco, LLC stgns a sworn affidavit of compliance wtth ~~rder, • Defendants shall pay $ iV()V, f30 to Plamtlffs fot; ~ costs mcurred m secunng productiOn of the. ocuments, and ~ • the Issue of whether Plamtrffs face Irreparable harm ~~e lack of the note/secunty requrred by the parties' contract IS conclusively es~Yed m Plarntiffs' favor 0~ Should Defendants fall to comply w1th this order w~ forty~eight hours of the stgnature hereof, Defendants and their attorneys of record WJ wtl~ asked to personally appear and show cause as to why they should not be held m cont~~th1s Court ~ru Signed on the _Jj_ day of 4f:rt?JTION TO COMPEL 0 The Court, having considered !®fendants' Motion to Stay All Matters and Plaintiffs' oQ Third Motion to Compel and th~tive responses, arguments of counsel, and evidence, has determined that Defendants' ~on should be and is hereby DENIED and that Plaintiffs' motion should be and is hereby G~ED. Specifically: The Court DE~gefendants' request to stay all matters. . The Cou!J ~~y OVERRULES Defendants' objections to Plaintiffs' Requests for Production No,2, 3, 4, 5, 7, and 8. IT IS ORDERED that Defendants shall produce all ~ document~onsive to Requests for Production Nos. 1, 2, 3, 4, 5, 7, and 8 within 24 hours of the entry of this order. Th~om t Fllq!JS that Defeudams' co,msernasahused the discovery_pr~'Sis_fiil:g­ l'(oM:;it;A-';-enr-:ln~ermmea that the followillg sanctions are appropriate~ satisfy the legitimate- Exhibit B Exhibit 3 Page 36 ~I 1 A purposes of discovery sanctions, and are nenher more 1101 less stringent than nece:.:.ary to-. 11\j-/ '-- aceef!!plishjtT7}Se purpes&.- AcsorQ_ingly, IT IS ORDERED that all---eXpenses of dtscovery assocmtecrwith th~ ooderlying motiotnl1101fie deposition of each of the Defenda"""fitrin aecordance with this oreer an:~ e MOSSER l.AW fiRM shall pay to~~ $ within I 0 days of the sig11iflg ei.th.iuJrder.~ (J ·rr- IS FURTHER ORDERED that the fullo"i"g fucts a~ABL!SHBD fi5r1rtl---... I'm poses in thiS hbgatwn: that Defendants havo ART A INGINPART PLAINTIFFS' MOTION TO ENFOR 0~ On thts dav the Court came to constder pJ.il~~ffs Sec.ond Mohon to Enforce the Court'& - ~~ Order and for Sandton~ (lhe "Mot.Ion") ~Y cons1denng lhe facts, law, and argument of and Plamhffs' Il11rd Matton to Compel lhts p10dm.tton must be made~lo p m on Wednesday, Apttl 1, 2015 to both Sam Haten and Kelly Stephen::, ~U oW Plmnt1f~~Dcfendants' request; ~or sancuons dlC dcmed s:~J~ilieL-day or~ ~~ Exhibit B Exhibit 4 Page 38 CAUSE NO 2014-10896 LOS CUCOS MEXICAN CAFE Vill, INC , LOS CUCOS MEXICAN § § IN THE DISTRICT COURT OF f,Z - CAFE IV, INC , MANUEL § cf Mr£u=x * CABRERA, and SERGIO § CABRERA, § Plamtiffs § /tTFE)( § ~ v § (} § HARRIS CO~, TEXAS ""' 8650 FRISCO, LLC D/B/A ESTILO § 0~ ~ 9 GAUCHO BRAZILIAN § ~ CP STEAKHOUSE, MANDONA, LLC, § 0~ GALOVELHO, LLC, BAHTCHE, § «:::}~ LLC, CLAUDIO NUNES, and § ~ 0 DAVID JEIEL RODRIGUES, § 0~ ~ Defendants § Ul~ JUDICIAL DISTRICT& ftj(9} Order Grantm Third MotiOn To En~ he Court's Order On thrs day the Court came to con~Wlamtrffs' Thrrd Matron to Enforce the Court's cg Order (the "Motion") After consrdenn~e facts, law, and argument of counsel, the Court has decrded to GRANT the Matron nt~nts Will produce all documents responsive to Requests for Production 1, 2, 3, 4, 5, 7~Q8 contamed m Exhrbrt 1 to the Mohon (the "Documents") ~0. Thrs productron must be ~hrough hand delivery dunng normal busmess hours to Andrew Meade or Samuel H~ Gat HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smrth, o~j Houston, Texas 7f!;Qj. ·' The ~Q fiuther finds that Defendants VIOlated three of the Court's pnor orders by farlmg to ~uce responsrve documents Thrs misconduct Is part of a larger pattern of Improper objectwns, mentless motions, frrvolous arguments, fergned rgnotance of baste factual and legal Issues, and drshonest gamesmanship m vrolatwn of Texas Rule of Crvll Procedure 13 Pt evrous warnmgs from the Court have been meffectrve m forcmg Defendants to comply wrth the Court's Exhibit 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 0~ Should Defendants fall to comply w1th this order w~ forty~eight hours of the stgnature hereof, Defendants and their attorneys of record WJ wtl~ asked to personally appear and show cause as to why they should not be held m cont~~th1s Court ~ru Signed on the _Jj_ day of 4f:rt?J