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

ACCEPTED

01-15-00423-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

5/6/2015 7:40:32 PM

CHRISTOPHER PRINE

CLERK

01-15-00423-CV

No. _____________________ FILED IN

st

1 COURT OF APPEALS

HOUSTON, TX

IN THE MAY 6, 2015

CHRISTOPHER A. PRINE,

CLERK

________ 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

PETITION FOR WRIT OF MANDAMUS

MOSSER LAW PLLC

James C. Mosser

Texas Bar No. 00789784

Nicholas D. Mosser

Texas Bar No. 24075405

Paul J. Downey

Texas Bar No. 24080659

2805 Dallas Parkway, Suite 220

Plano, Texas 75093

Tel. (972) 733-3223

Fax (469) 626-1073

courtdocuments@mosserlaw.com

LAWYERS FOR RELATORS

RELATORS REQUEST ORAL ARGUMENT

RELATORS REQUEST TEMPORARY RELIEF

PETITION FOR WRIT OF MANDAMUS i

IDENTITY OF PARTIES & COUNSEL

The following is a complete list of the parties, the attorneys, and any other

person who has an interest in the outcome of this lawsuit:

Relators

8650 Frisco, LLC, d/b/a Estilo Gaucho Brazilian Steakhouse;

Mandona, LLC;

Galovelho, LLC;

Bahtche, LLC;

Claudio Nunes; and

David Jeiel Rodrigues

represented by:

MOSSER LAW PLLC

James C. Mosser

Texas Bar No. 00789784

Nicholas D. Mosser

Texas Bar No. 24075405

Paul J. Downey

Texas Bar No. 24080659

2805 Dallas Parkway, Suite 220

Plano, Texas 75093

Tel. (972) 733-3223

Fax (469) 626-1073

courtdocuments@mosserlaw.com

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.;

PETITION FOR WRIT OF MANDAMUS ii

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@stephensdominitz.com

Hawash, Meade, Gaston, Neese, & Cicack LLP

Andrew K. Meade

Texas Bar No. 24032854

Jeremy M. Masten

Texas Bar No. 24083454

Samuel B. Haren

Texas Bar No. 24059899

2118 Smith Street

Houston, Texas 77002

Tel. 713-658-3001

Fax. 713-658-9011

ameade@hmgnc.com

jmasten@hmgnc.com

sharen@hmgnc.com

Cox Smith Matthews Incorporated

David Kinder

Texas Bar No. 11432550

112 East Pecan Street, Suite 1800

San Antonio, Texas 78205

Tel. 210-554-5500

Fax. 210-226-8395

dkinder@coxsmith.com

PETITION FOR WRIT OF MANDAMUS iii

TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Los Cucos’ Fourth Amended Petition Nonsuits All Prior Claims on which

the July 28, 2014 Enforcement Order Is Based. . . . . . . . . . . . 8

This Voluntary Dismissal Is a Nonsuit. . . . . . . . . . . . . . . . . . . . . . . 10

This Nonsuit Also Disposes of 8650 Frisco,LLC’s

Derivative Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

This Nonsuit Disposed of the Trial Court’s

July 28, 2014 Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Counsel for Los Cucos Has Failed to Comply with the Discovery

Process; Therefore, Respondent Abused her Discretion in

ordering The Production of Documents

Or Discovery Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Respondent’s April Orders Constitute a Clear Abuse of Discretion

Because the Discovery Sought Was Served on the Requesting

Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

There Is No Adequate Remedy by Appeal for

These Abuses of Discretion. . . . . . . . . . . . . . . . . . . . . . . . . . 23

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

PETITION FOR WRIT OF MANDAMUS iv

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

APPENDIX AND RECORD.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

PETITION FOR WRIT OF MANDAMUS v

INDEX OF AUTHORITIES

CASES

Able Supply Co. v. Moye, 898 S.W.2d 766, 772 (Tex. 1995). . . . . . . . . . . 8

Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 806 (Tex. 1993). . . 13,

15

Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991). . . . 8,

17

B & W Supply, Inc. v. Beckman, 305 S.W. 3d 10, 16 (Tex.App.–Houston

[1st Dist] 2009, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Bair v. Hagans, 838 S.W.2d 677, 681 (Tex.App.–Houston [1st Dist] 1992,

writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990). . 12,

13

C/S Solutions, Inc. v. Energy Maintenance Svcs. Grp. LLC. 274 S.W.3d

299, 306 (Tex.App.–Houston [1st Dist] 2008, no pet.). . . . . . . . . . . . . . . . 11

City of Dallas v. Albert, 354 S.W.3d 368, 375 (Tex. 2011). . . . . . . . . . . . 11

Dolenz v. All Saints Episcopal Hosp. 638 S.W.2d 141, 142 (Tex.App.–Fort

Worth 1982, writ ref’d n.r.e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Epps v. Fowler, 351 S.W.3d 862, 868 (Tex. 2011). . . . . . . . . . . . . . . . . . 10

FKM Prtshp. v. Board of Regents of the Univ. of Houston Sys. 255 S.W.3d

619, 633 (Tex. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

In re BDPJ Houston, LLC, 420 S.W.3d 309 (Tex.App–Houston [14th Dist.]

2013)(original proceeding). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-22

In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). . . . . . . . . . . . . . 20, 23

PETITION FOR WRIT OF MANDAMUS vi

In re Estate of Kidd, 812 S.W.2d 356, 359 (Tex.App.–Amarillo 1991, writ

denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

In re Prudential, 148 S.W.3d 124, 135-36 (Tex. 2004). . . . . . . . . . . . . . . . 7

In re Team Rocket, L.P. 256 S.W.3d 257, 259 (Tex. 2008) (original

proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Randolph v. Jackson Walker, L.L.P. 29 S.W.3d 271, 274-275

(Tex.App.–Houston [14th Dist.] 2000, pet. denied).. . . . . . . . . . . . . . . . . . 10

UTMB v. Estate of Blackmon, 195 S.W.3d 98, 101 (Tex. 2006). . . . . . . . 12

Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008). . . . . . . . . . . . . . 13, 14

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). . . . . . . . . . . . 7, 8, 17

RULES

TEX. R. CIV. P. 021a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

TEX. R. CIV. P. 063. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. R. CIV. P. 065. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. R. CIV. P. 096. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

TEX. R. CIV. P. 162. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

TEX. R. CIV. P. 192.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

TEX. R. CIV. P. 192.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TEX. R. CIV. P. 215.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

PETITION FOR WRIT OF MANDAMUS vii

STATEMENT OF THE CASE

1. This petition for writ of mandamus is taken from breach of contract

suit in which the Real Parties in Interest allege that the Relators have

breached a settlement agreement that ended a prior lawsuit. The

Real Party in Interest seeks judgment for actual damages totaling

$900,000, the cost of Relator’s alleged breach.

2. Respondent in this case is the Honorable Jaclanel McFarland, who

presides over the 133rd Judicial District Court located in Harris

County at the Harris County Civil Courthouse, 201 Caroline, 11th

Floor, Houston, Texas 77002.

3. Relators seek relief from Respondent’s April 1, 2015 Order

mandating the production of certain discovery to which the Real

Parties in Interest were not entitled.

4. Additionally, Relators seek relief from Respondent’s April 27, 2015

Order barring Relators from conducting discovery related to

defending against the breach of contract claim; granting $1,000.00 in

attorneys fees to the Real Parties in Interest for costs incurred in

securing production of the documents; and deeming conclusively

established the issue of irreparable harm to Real Parties in Interest

PETITION FOR WRIT OF MANDAMUS viii

from the lack of a signed note and security interest.

PETITION FOR WRIT OF MANDAMUS ix

STATEMENT OF JURISDICTION

This Court has jurisdiction to issue a writ of mandamus. TEX. GOVT.

CODE § 22.221(b)(1). That section permits this Court to issue a writ of

mandamus against a judge of a district court in the court of appeals district.

Harris County is within the First and Fourteenth Court of Appeals Districts.

TEX. GOVT. CODE § 22.201(b), (o). The 133rd Judicial District Court is

seated in Harris County. TEX. GOVT. CODE § 24.235. Thus, the 133rd

Judicial District Court is within these Courts’ Appeals Districts. See id; see

also TEX. GOVT. CODE § 22.201(b), (o).

PETITION FOR WRIT OF MANDAMUS x

ISSUES PRESENTED

The issues presented in this petition are:

1. Whether the most recent amendment to Real Parties’ in Interest

Petition acts to affirmatively non-suit the claims from the original

lawsuit, the answer is Yes.

2. Whether the nonsuit renders Respondent’s July 28, 2014 discovery

order a nullity, the answer is Yes.

3. Whether Real Parties in Interest failed to follow the proper discovery

procedures before filing its improperly titled Second Motion to

Enforce the Court’s Order and for Sanctions the answer is Yes.

4. Whether the April 1, 2014 order and the April 27, 2014 order compel

the production of discovery that is patently irrelevant, the answer is

Yes.

5. Whether the April 1, 2014 and April 27, 2014 constitute an abuse of

discretion, the answer is Yes.

6. Whether there is an adequate remedy by appeal for this abuse of

discretion, the answer is No.

PETITION FOR WRIT OF MANDAMUS xi

STATEMENT OF FACTS

1. On March 12, 2014, Real Parties in Interest (hereinafter “Los Cucos”)

filed their original petition relating to a business startup, alleging

breach of contract, conversion, fraud, fraudulent inducement, civil

conspiracy, alter ego, unjust enrichment, quantum merit, all base on

an oral contract, and requesting an accounting, all of which stemmed

from the business operated by the Relators (hereinafter “8650 Frisco,

LLC”). App. at 15-25.

2. Then, one month later, Los Cucos served 8650 Frisco, LLC, with its

first set of discovery requests. App. at 26-37, 8650 Frisco, LLC, filed

its original answer this same day. App. at 38-41. 8650 Frisco, LLC,

objected to Los Cucos’ discovery requests which eventually became

the subject of an order compelling production of documents issued

by the Respondent on July 28, 2014. App. at 93-94. Respondent’s

order called for the documents to be “produced at [Attorney in

Charge for Los Cucos Office] by August 1, 2014 at 5:00 P.M. in

accordance with Los Cucos’ Counsel’s request that he be served

electronically so he “can get ready for depositions” scheduled for

August 4, 2014. Compare App. at 70 with App. at 94. 8650 Frisco,

PETITION FOR WRIT OF MANDAMUS 1

LLC complied with this order by serving Los Cucos with the

compelled discovery at 4:47PM on Friday, August 1, 2014 via the E-

File Texas filing and service portal. App. at 335-36.

3. On Monday, August 4, 2014, the parties met in Houston at Los

Cucos’ attorney’s office for depositions, which had been ordered and

scheduled that day by the court. App. at 86; 106. Depositions began

as ordered, and continued throughout the day and were adjourned,

the next day, August 5, 2014, the parties sua sponte opened

settlement discussions and reached a settlement agreement which

was then dictated to the court reporter and agreed to, with all counsel

and clients present. The agreement was subsequently filed with the

court. App. at 95-99. These negotiations were conducted and this

agreement was reached without the attorney in charge, Counsel for

Los Cucos ever having opened the e-mail he received which

contained the discovery materials ordered produced by the

Respondent on July 28, 2014. App. at 335-36; App. at 339.

4. Between August 4, 2014, and January 21, 2015, disagreements

arose between the parties over the form of the “standard bank type

document” which prevented the parties from jointly executing the

PETITION FOR WRIT OF MANDAMUS 2

same documents. App. at 107-08. Despite this, 8650 Frisco, LLC

signed a note and has made all payments to Los Cucos as agreed.

App. at 107. 8650 Frisco, LLC is presently current on the monthly

payments. App. at 107.

5. On January 21, 2015, Los Cucos amended its live pleading a fourth

time, the last time. App. at 100-110. This pleading contains a singular

cause of action alleging a breach of the agreement struck by the

litigants on August 4, 2014, that was filed with the court. App. at 108.

The claims alleging a breach of the agreement that created the

restaurant, conversion, fraud, fraudulent inducement, civil

conspiracy, alter ego, unjust enrichment, quantum merit and

requesting an accounting are no longer present in the fourth

amended pleading. Compare App. at 20-22 with App. at 108. Los

Cucos has not made any discovery requests in connection with the

claim contained in this latest pleading. App. at 440.

6. Instead, on February 20, 2015, Los Cucos filed a Motion to Compel

discovery of the documents which were the subject of the

Respondent’s July 28, 2014 order with the Respondent and which

8650 Frisco, LLC had properly served responses pursuant to Tex. R.

PETITION FOR WRIT OF MANDAMUS 3

Civ. P. 21 and 21a, on Los Cucos. App. at 111-328. 8650 Frisco,

LLC objected to the court’s order to the re-production of the these

same previously produced documents in its response to Los Cucos’

motion. App. at 329-36. 8650 Frisco, LLC supplemented its response

after receiving a letter from Counsel for Los Cucos, which

acknowledged the production via E-File, but contended that because

the email, receipt was not opened by Counsel for Los Cucos before

5:00PM on August 1, 2014, 8650 Frisco, LLC had failed to comply

with the court’s order compelling production. App. at. 337-341. Even

though the eservice transmission shows that it was sent at 4:47pm.

Los Cucos set this motion for hearing which took place on March 30,

2015, at which time the judge granted the motion to compel the

production of the previously produced documents and ordered them

to be produced again in the July 28, 2014 order by no later than

5:00PM on April 1, 2015. App. at 1.

7. 8650 Frisco, LLC made several attempts to serve these documents

on Counsel for Los Cucos. App. at 342-59. Of the three firms

representing Los Cucos, only Mr. Kinder successfully received

copies of the documents via facsimile. App. at 342. In spite of this

PETITION FOR WRIT OF MANDAMUS 4

service, Counsel for Los Cucos maintained that 8650 Frisco, LLC

had failed to comply with the court’s order by not serving enough

responsive documents. App. at 360. Los Cucos filed a Third Motion

to Enforce the Court’s Order and for Sanctions. App. at 360-429.

Again, 8650 Frisco, LLC responded to the Motion to Enforce. App. at

430-38. The Court held a hearing on this matter on April 27, 2015,

and without evidence, granted ex parte, the relief requested by Los

Cucos, specifically:

a. That 8650 Frisco, LLC is barred from further discovery until a

representative signs a sworn affidavit of compliance with this

order;

b. that 8650 Frisco, LLC shall pay $1000.00 to Los Cucos for their

costs incurred in securing production of the Documents, and;

c. That the issue of whether Plaintiff’s face irreparable harm from

the lack of the note and security required by the parties’

contract is conclusively established in [Los Cucos’] favor. App.

at 2-3.

8. This original proceeding follows.

ARGUMENT

PETITION FOR WRIT OF MANDAMUS 5

9. Respondent’s conduct in this case merits the relief of a writ of

mandamus because Respondent has decided without any basis in

law or fact that Los Cucos is entitled to certain discovery despite Los

Cucos’ voluntary nonsuit of the claims to which that discovery is

related.

10. Additionally, the Respondent has allowed Los Cucos to rely on an

order that does not survive nonsuit to make demands for discovery

entirely outside the traditional discovery process with respect to a

wholly original claim. Finally, Respondent’s conduct in foreclosing

8650 Frisco, LLC’s discovery right, and conclusively establishing an

unplead element of a claim other than breach of contract severely

impairs 8650 Frisco, LLC’s ability to present a viable claim or

defense to the suit.

Standard of Review

11. A relator is entitled to the extraordinary writ of mandamus if the trial

court clearly abused its discretion and the relator has no adequate

remedy by appeal. In re Team Rocket, L.P. 256 S.W.3d 257, 259

(Tex. 2008) (original proceeding). A trial court abuses its discretion if

it acts in an unreasonable or arbitrary manner without reference to

PETITION FOR WRIT OF MANDAMUS 6

guiding rules and principles. Walker v. Packer, 827 S.W.2d 833, 839

(Tex. 1992). A trial court has no “discretion” in determining what the

law is or applying the law to the facts. Id. at 840. Thus, a clear failure

by the trial court to analyze or apply the law correctly will constitute

an abuse of discretion, and may result in appellate reversal by

extraordinary writ. Id.

12. Additionally, the relator must have no adequate remedy by appeal. In

re Prudential, 148 S.W.3d 124, 135-36 (Tex. 2004). Determining

whether an appellate remedy is adequate involves balancing

“practical and prudential” considerations, such as the inevitability of

reversal and the waste of judicial resources on a proceedings. In re

Team Rocket, L.P. 256 S.W.3d at 262. An appellate remedy is

inadequate “where a discovery order compels the production of

patently irrelevant or duplicative documents, such that it clearly

constitutes harassment or imposes a burden on the producing party

far out of proportion to any benefit that may obtain to the requesting

party.” See Walker v. Packer, 827 S.W.2d at 843. Further,

mandamus will issue where a party’s ability to present a viable claim

or defense at trial is vitiated or severely compromised by the trial

PETITION FOR WRIT OF MANDAMUS 7

court’s discovery error. Able Supply Co. v. Moye, 898 S.W.2d 766,

772 (Tex. 1995).

13. Finally, a writ of mandamus will issue to compel the performance of a

ministerial act or duty. Walker v. Packer, 827 S.W.2d at 839. An act

is ministerial when the law clearly spells out a duty to be performed

by a public official with such certainty that nothing is left to the

official’s discretion. Anderson v. City of Seven Points, 806 S.W.2d

791, 793 (Tex. 1991).

14. Here, the Respondent’s reliance on an order that does not survive

nonsuit as grounds for a subsequent motion to enforce;

Respondent’s command to produce documents irrelevant to the lone

claim presented by Los Cucos; and Respondent’s sanctions barring

discovery by 8650 Frisco, LLC and conclusively establishing a claim

that remains not pleaded by Los Cucos all constitute reversible error

with no adequate remedy by appeal, for which a writ of mandamus is

the only corrective action.

LOS CUCOS’ FOURTH AMENDED PETITION NONSUITS ALL PRIOR CLAIMS ON

WHICH THE JULY 28, 2014 ENFORCEMENT ORDER IS BASED

15. Pleadings may be amended at any time prior to trial, so long as the

amendment does not operate as a surprise to the opposite party.

PETITION FOR WRIT OF MANDAMUS 8

TEX. R. CIV. P. 63. Unless the substituted instrument shall be set

aside on exceptions, the instrument for which it is substituted shall no

longer be regarded as a part of the pleading in the record of the

cause. TEX. R. CIV. P. 65. As the Supreme Court of Texas has

stated, “Amended pleadings and their contents take the place of prior

pleadings. So causes of action not contained in amended pleadings

are effectively dismissed at the time the amended pleading is filed.”

FKM Prtshp. v. Board of Regents of the Univ. of Houston Sys. 255

S.W.3d 619, 633 (Tex. 2008) (emphasis added).

16. As previously stated, Los Cucos’ original petition contained claims

alleging breach of the agreement that created the restaurant,

conversion, fraud, fraudulent inducement, civil conspiracy, alter ego,

unjust enrichment, quantum merit and requesting an accounting.

App. at 20-22. The Fourth Amended Petition contains a lone claim for

breach of contract relating exclusively to the settlement created and

agreed to on August 4, 2015. App. at 108. Hence, by operation of

law, Los Cucos voluntarily dismissed all prior claims when it filed its

Fourth Amended Petition on January 21, 2015. See TEX. R. CIV. P.

65; see also FKM Prtshp. v. Board of Regents of the Univ. of

PETITION FOR WRIT OF MANDAMUS 9

Houston Sys. 255 S.W.3d at 633.

THIS VOLUNTARY DISMISSAL IS A NONSUIT

17. Because an amended pleading supersedes and supplants all

previous pleadings, an amendment of the pleading can work as a

nonsuit of parties and claims. See Randolph v. Jackson Walker,

L.L.P. 29 S.W.3d 271, 274-275 (Tex.App.–Houston [14th Dist.] 2000,

pet. denied.) (“Therefore on appeal, the doctor could not complain of

the trial court’s action upon his original plea for injunction because

that cause of action was abandoned when he went to trial on his third

amended petition.”)(citing Dolenz v. All Saints Episcopal Hosp. 638

S.W.2d 141, 142 (Tex.App.–Fort Worth 1982, writ ref’d n.r.e)).

Omitting a claim from an amended petition indicates an intent to

nonsuit that claim. Dolenz v. All Saints Episcopal Hosp. 638 S.W.2d

141, 142 (Tex.App.–Fort Worth 1982, writ ref’d n.r.e). A written order

of nonsuit is not required. TEX. R. CIV. P. 162; Epps v. Fowler, 351

S.W.3d 862, 868 (Tex. 2011). Thus, Los Cucos’ dismissal of claims

via amendment is a nonsuit of those claims, and even Counsel for

Los Cucos admits as much. See Randolph v. Jackson Walker, L.L.P.

29 S.W.3d at 274-275; See also App. at 114-15. (“That motion to

PETITION FOR WRIT OF MANDAMUS 10

transfer was filed before the settlement agreement was made and

only addresses claims which are no longer asserted in this action”).

(emphasis added). The nonsuit necessarily affects orders entered in

this case pursuant to the non-suited claims, specifically the July 28,

2014 order.

THIS NONSUIT ALSO DISPOSES OF 8650 FRISCO, LLC’S DERIVATIVE CLAIMS

18. Because Los Cucos has taken a nonsuit of all claims made prior to

January 21, 2015, 8650 Frisco, LLC’s derivative claim, its request for

declaratory judgment, is mooted. When a nonsuit is taken, the

dismissal does not prevent the defendant from being heard on its

own claims for affirmative relief. TEX. R. CIV. P. 96; 162; City of

Dallas v. Albert, 354 S.W.3d 368, 375 (Tex. 2011). The distinction

between a true Rule 162 nonsuit and a voluntary dismissal under

Rule 63 has no practical effect when a plaintiff files a written “nonsuit”

that abandons the case as to certain claims so long as the written

“nonsuit” does not run afoul of the time restrictions in Rule 63. C/S

Solutions, Inc. v. Energy Maintenance Svcs. Grp. LLC. 274 S.W.3d

299, 306 (Tex.App.–Houston [1st Dist] 2008, no pet.). For a claim to

qualify as a claim for affirmative relief under TEX. R. CIV. P. 162, it

PETITION FOR WRIT OF MANDAMUS 11

must allege the defendant has a cause of action on which it can

recover independent of the plaintiff’s claims, even if the plaintiff

abandons or is unable to establish its claims. UTMB v. Estate of

Blackmon, 195 S.W.3d 98, 101 (Tex. 2006).

19. A claim that mirrors the controlling issues in a case is not an

independent claim for affirmative relief. In re Estate of Kidd, 812

S.W.2d 356, 359 (Tex.App.–Amarillo 1991, writ denied). A

declaratory judgment that denies the existence of a contract filed in

response to a breach of contract claim is not an independent claim

for affirmative relief. BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d

838, 841 (Tex. 1990)(citing Newman Oil Co. v. Alkek, 614 S.W.2d

653 (Tex.Civ.App.–Corpus Christi 1981, writ refused n.r.e.)(“We hold

that the above allegations pled in defendants’ counterclaim are not

any averments of fact upon which affirmative relief could be granted.

They are merely denials of plaintiff’s cause of action.”).

20. In this case, 8650 Frisco, LLC has filed a declaratory judgment action

seeking a declaration that no contract exists between the parties, a

fact which Los Cucos would have had to prove as part of its breach

of contract claim. App. at 39-40. The nonsuit of Los Cucos’ original

PETITION FOR WRIT OF MANDAMUS 12

breach of contract claim thus disposes of 8650 Frisco, LLC’s action

seeking declaratory judgment. See BHP Petroleum Co. Inc. v.

Millard, 800 S.W.2d at 841.

THIS NONSUIT DISPOSED OF THE TRIAL COURT’S JULY 28, 2014 ORDER

21. Whether the July 28, 2014 order survives nonsuit depends on the

nature of the order. One unique effect of a nonsuit is that it can

vitiate certain interlocutory orders, rendering them moot and

unappealable. Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008)

(Emphasis added). Sanctions orders may survive nonsuit,

depending on the purpose of the sanction. Aetna Cas. & Sur. Co. v.

Specia, 849 S.W.2d 805, 806 (Tex. 1993). If a sanction is aimed at

insuring a party is afforded a fair trial and not subjected to trial by

ambush, the reason for imposing the sanction no longer exists after a

party takes a nonsuit. Id. at 806-07. Conceivably, an order

compelling discovery, like Respondent’s July 28, 2014 order, could

be considered a sanction, as it is available to the moving party under

TEX. R. CIV. P. 215.1. This court, however, has held that “an order

to compel is not a lesser sanction under rule 215.[2(b)].” Bair v.

Hagans, 838 S.W.2d 677, 681 (Tex.App.–Houston [1st Dist] 1992,

PETITION FOR WRIT OF MANDAMUS 13

writ denied). Because the July 28, 2014 order is not a lesser

sanction, it is a simple interlocutory order that was extinguished the

moment Los Cucos nonsuited the claims from which the discovery

and the order itself emanated. See Villafani v. Trejo, 251 S.W.3d at

469; Id.

22. If the court is of a mind that the order to compel constitutes a

sanction, then the purpose of the order, to compel the production of

documents needed for depositions, ceased to exist the moment the

parties entered into the settlement agreement, or when they were

eserved. App. at 97-98. This concept is underscored by the fact that

Counsel for Los Cucos made a special point of stating his specific

need for the documents during a hearing, then subsequently entered

into a settlement agreement without ever having viewed the

documents. See App. at 70, 97-98, 335, 339-40. Neither did he

complain of any failure to produce the documents or of their

substance during the deposition or the subsequent settlement

negotiations1, waiting only until he amended Los Cucos’ suit to

1

TEX. R. CIV. P. 8 states “All communications from the court or to other counsel

with respect to a suit shall be sent to the attorney in charge.” The rule further defines

counsel in charge as “the attorney whose signature appears on the initial

pleadings...unless another attorney is specifically designated therein.” Kelly Stephens is

PETITION FOR WRIT OF MANDAMUS 14

complain of breach of contract and a lack of documents. App. at 97-

98, 100-110, 113-115. Thus, the purpose for any sanction ceased to

exist by the conclusion of the settlement agreement and that purpose

was fully extinguished at the moment of nonsuit. See Aetna Cas. &

Sur. Co. v. Specia, 849 S.W.2d at 806.

23. Consequently, the July 28, 2014 order does not survive the nonsuit.

See id.

COUNSEL FOR LOS CUCOS HAS FAILED TO COMPLY WITH THE DISCOVERY

PROCESS; THEREFORE, RESPONDENT ABUSED HER DISCRETION IN ORDERING

THE PRODUCTION OF DOCUMENTS OR DISCOVERY SANCTIONS.

24. As of May 3, 2015, Counsel for Los Cucos has not made any

requests for production relating to the lone breach of contract claim

relating to the settlement agreement asserted in its Fourth Amended

Petition. Counsel instead relies exclusively on the July 28, 2014 order

as the vehicle by which it claims to be entitled to discovery. App. at

110-16, 360-63. Texas Rule of Civil Procedure 215.1(b) states:

“If a party fails to respond that discovery will be permitted

as requested or fails to permit discovery as requested in

response to a request for inspection submitted under Rule

196, the discovering party may move for an order

compelling...inspection or production in accordance with

the attorney in charge, but Andrew Meade handled the deposition of Claudio Nunes on

August 4, 2014.

PETITION FOR WRIT OF MANDAMUS 15

the request or may apply to the court in which the action is

pending for the imposition of any sanction in which the

action is pending for the imposition of any sanction

authorized by Rule 215.2(b)...”

TEX. R. CIV. P. 215.1(b)(3)(D)

25. By its own terms, the rule contemplates that the requesting party

must at least request discovery from the party from whom discovery

is sought before the court can even hear a motion to compel

discovery. See TEX. R. CIV. P. 215.1(b)(3)(D). As the Texas Rules

of Civil Procedure make clear, a request for production must be

made in writing. TEX. R. CIV. P. 192.7(a).

26. Because the July 28, 2014 order is moot for the reasons listed

above, Los Cucos failed to make a showing that it ever propounded

requests for production related to its Sole Breach of Contract claim.

App. at 110-116, 360-63. Thus, Los Cucos has failed to meet a

necessary prerequisite to a motion to compel or a motion for

sanctions. See TEX. R. CIV. P. 215.1(b)(3)(D). Because the court

had no evidence before it that Los Cucos had ever propounded a

discovery request based upon the live pleading to 8650 Frisco, LLC,

the court had no discretion to grant the Second and Third Motions to

Compel, rendering denial a ministerial act in which the law clearly

PETITION FOR WRIT OF MANDAMUS 16

spells out a duty to be performed by the Respondent with such

certainty that nothing is left to the Respondent’s discretion. See

Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991).

At the very least, this constitutes a clear abuse of discretion, because

a trial court has no “discretion” in determining what the law is or

applying the law to the facts. Walker v. Packer, 827 S.W.2d at 840.

RESPONDENT’S APRIL ORDERS CONSTITUTE A CLEAR ABUSE OF DISCRETION

BECAUSE THE DISCOVERY SOUGHT WAS SERVED ON THE REQUESTING PARTY

27. TEX. R. CIV. P. 215.1 also requires a showing that the party on

whom discovery was served must fail to respond, that discovery will

be permitted as requested or fail to permit discovery as requested in

response to a request...submitted under Rule 196. TEX. R. CIV. P.

215.1(b)(3)(D) (emphasis added). If this court finds that the Court’s

July 28, 2014 order survives nonsuit and that Los Cucos properly

noticed 8650 Frisco, LLC, the court should conclude nonetheless that

the Court’s April Orders constitute an abuse of discretion, as Los

Cucos did not make a viable showing that 8650 Frisco, LLC failed to

comply with the discovery rules or the Court’s July 28, 2014 order.

28. As stated previously, the July 28, 2014 Order required that 8650

Frisco, LLC, comply with Respondent’s Order by serving the

PETITION FOR WRIT OF MANDAMUS 17

requested documents electronically “in Plaintiff’s Office no later than

5:00 PM on August 1, 2014.” App. at 94. 8650 Frisco, LLC complied

with this order by serving Los Cucos with the compelled discovery at

4:47PM on Friday, August 1, 2014 via the E-File Texas filing and

service portal. App. at 335-36. Electronic Service, a method which

undoubtedly includes the E-File Texas filing and service portal, is

complete on transmission of the document to the serving party’s

electronic filing service provider. TEX. R. CIV. P. 21a(b)(3). The

electronic filing manager will send confirmation of service to the

serving party. Id. Thus, by operation of the Texas Rules of Civil

Procedure, 8650 Frisco, LLC complied with the court’s order. See id.

29. In choosing to maintain its Second Motion to Enforce, Counsel for

Los Cucos stated that:

“Your exhibit shows that the documents were not sent to

your e-service until 4:46 p.m. My email shows that the

same were not forwarded to me until 5:47 p.m. Even

then, it was not the documents that were delivered by a

notice that they had been placed in the e-service and

could be downloaded. Thus, your delivery was not, as

ordered, by 5:00 p.m. and as you know, I did not receive

the documents.” App. at 339.

Despite the clear directive to the contrary contained in TEX. R. CIV.

P. 21a(b)(3), and its counsel’s acknowledgment that he received the

PETITION FOR WRIT OF MANDAMUS 18

e-file link, Los Cucos represented to the court that it was never

served the documents which were the subject of the July 28, 2014,

order. App. at 360.

30. This argument cannot stand as it places the control over the service

of documents in the hands of the party requesting the documents,

who may freely create a violation of an order to produce by ignoring

its e-mail. Additionally, this argument ignores TEX. R. CIV. P. 21a

which states “Electronic service is complete on transmission of the

document to the serving party’s electronic filing service provider.”

Because the Court ordered electronic service in accordance with Los

Cucos’ requests, it bound itself to follow the Texas Rules of Civil

Procedure and thus had no discretion to rule that there was no

service. See App. at 94. Consequently, Respondent abused its

discretion in ordering the production of documents in the April 1,

2015 order when they had already been produced, in finding that the

documents had never been produced in the April 27, 2015 order, and

in sanctioning 8650 Frisco, LLC. See TEX. R. CIV. P. 21a(b)(3).

THE REQUESTED DISCOVERY IS NOT RELEVANT TO LOS CUCOS SOLE CLAIM

FOR RELIEF

31. Generally, the scope of discovery is within the trial court’s discretion.

PETITION FOR WRIT OF MANDAMUS 19

In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003)(citing Dillard

Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995)).

However, the trial court must make an effort to impose reasonable

discovery limits. Id. (citing In re American Optical, 988 S.W.2d 711,

713 (Tex. 1998). The trial court abuses its discretion by ordering

discovery that exceeds that permitted by the rules of procedure. Id.

(citing Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995).

32. Usually, the scope of discovery includes any unprivileged information

that is relevant to the subject of the action, even if it would be

inadmissible at trial, so long as the information is reasonably

calculated to lead to the discovery of admissible evidence. In re

BDPJ Houston, LLC, 420 S.W.3d 309 (Tex.App–Houston [14th Dist.]

2013)(original proceeding)(citing TEX. R. CIV. P. 192.3(a))(emphasis

added). Information is relevant if it tends to make the existence of

any fact that is of consequence to the determination of the action or

defense more or less probable than it would be without such

information. Id. (citing TEX. R. EVID. 401)(emphasis added).

33. Los Cucos’ sole claim for relief states, “The defendants have

breached the Rule 11 agreement by failing to execute the formal

PETITION FOR WRIT OF MANDAMUS 20

settlement agreement, the promissory note, and the appropriate

security documents as set forth in the Rule 11 agreement.” App. at

108. Nothing in the Second Motion to Enforce filed on February 20,

2015 relates at all to whether there has been a breach of the

settlement agreement, because all of this requested discovery

relates to causes of action that Los Cucos has since nonsuited. App.

at 15-37,114. The requested discovery does not tend to “make the

existence of any fact of consequence” to the breach of the Rule 11

Agreement “more or less probable.” See In re BDPJ Houston, LLC,

420 S.W.3d at 309.

34. Furthermore, the issue of whether the Real Parties in Interest face

“irreparable harm from the lack of the note/security (sic) required by

the parties’ contract” is not an element of a breach of contract suit,

and thus is not relevant to this suit.

35. The essential elements of a breach of contract claim are (1) the

existence of a valid contract, (2) performance or tendered

performance by the plaintiff; (3) breach of the contract by the

defendant; and (4) damages sustained as a result of the breach. B &

W Supply, Inc. v. Beckman, 305 S.W. 3d 10, 16 (Tex.App.–Houston

PETITION FOR WRIT OF MANDAMUS 21

[1st Dist] 2009, pet. denied).

36. Los Cucos’ claim that “Plaintiffs require information from the

Financial Documents to assess Defendant’s compliance with their

settlement obligations” simply does not relate to any of the elements

of a breach of contract suit, and thus discovery on this basis is not

reasonably calculated to lead to any admissible evidence that tend to

prove or disprove any facts of consequence. Compare App. at 114

with id.; In re BDPJ Houston, LLC, 420 S.W.3d at 309.

37. Finally, Los Cucos’ claim that “Information concerning Plaintiff’s prior

claims is relevant to respond to Defendants’ frivolous motion to

transfer arguments” is without merit, and even Respondent thought

as much, as she denied the motion to transfer prior to ever hearing

Los Cucos’ Second Motion to Enforce the Court’s Order. Compare

App. at 1 with App. at 439. In so ruling, Respondent found the

documents the subject of her July 28, 2014 order had no bearing on

the motion to transfer venue then currently before the court,

underscoring the patent irrelevance of the documents to which Los

Cucos believes it is entitled. See In re BDPJ Houston, LLC, 420

S.W.3d at 309; TEX. R. CIV. P 192.3(a).

PETITION FOR WRIT OF MANDAMUS 22

THERE IS NO ADEQUATE REMEDY BY APPEAL FOR THESE ABUSES OF

DISCRETION

38. The Supreme Court of Texas has held that “where a discovery order

compels production of ‘patently irrelevant or duplicative documents’...

there is no adequate remedy by appeal because the order ‘imposes a

burden on the producing party far out of proportion to any benefit that

may obtain to the requesting party.” In re CSX Corp. 124 S.W.3d

149, 153 (Tex. 2003)(citing Walker v. Packer, 827 S.W.2d 833, 843

(Tex. 1992)).

39. The documents in question are patently irrelevant to the breach of

contract claim contained in Los Cucos’ live pleading, its Fourth

Amended Petition. Compare App. at 26-37, 93 with App. at 108; See

Id.

40. Additionally, because 8650 Frisco, LLC, has already tendered service

of these documents to the Attorney in Charge for Los Cucos,

ordering that these documents be tendered again is unnecessarily

duplicative. See In re CSX Corp. 124 S.W.3d 149, 153 (Tex. 2003).

41. Respondent’s April Orders impose “a burden on the producing party

far out of proportion to any benefit that may obtain to the requesting

party” such that there simply is no adequate remedy on appeal. See

PETITION FOR WRIT OF MANDAMUS 23

Id.

42. For these reasons, a writ of mandamus should issue, requiring

Respondent to vacate her April 1, 2015 Order Compelling Production

of Documents and her April 27, 2015 Order Compelling Production of

Documents and imposing sanctions on 8650 Frisco, LLC. See id;

TEX. R. CIV. P. 215.1(b)(3)(D); see also App. at 1; 2-3.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Relators pray that this court

find that Respondent abused her discretion in compelling production of the

documents requested by the Real Parties in Interest and imposing

sanctions on the Relators, find that there is no adequate remedy by

appeal, and issue a writ of mandamus compelling Respondent to vacate

her April 1, 2015 order compelling discovery, and her April 27, 2015 order

compelling discovery and imposing sanctions.

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

PETITION FOR WRIT OF MANDAMUS 24

Mosser Law, PLLC

2805 Dallas Parkway Suite 222

Plano, Texas 75093

Telephone 972-733-3223

Facsimile 469-626-1073

courtdocuments@mosserlaw.com

LAWYERS FOR DEFENDANTS 8650 FRISCO, LLC, D/B/A 8650 FRISCO,

LLC BRAZILIAN STEAKHOUSE; MANDONA, LLC; GALOVELHO, LLC; BAHTCHE,

LLC; CLAUDIO NUNES; AND DAVID JEIEL RODRIGUES

CERTIFICATION

I certify that I have reviewed the petition and conclude that every factual

statement in the petition is supported by competent evidence included in

the attached appendix or record and I certify that the documents attached

in the appendix are true and correct copies of the originals.

/s/ Paul J. Downey

Paul J. Downey

CERTIFICATE OF COMPLIANCE

I certify that there are 4907 words in this document, and that I relied on the

word count function of WordPerfect X6, which was used to prepare this

document.

/s/ Paul J. Downey

Paul J. Downey

CERTIFICATE OF SERVICE

I certify that on May 6, 2015, this document was served on the following

parties or counsel of records in accordance with Texas Rule of Appellate

Procedure 9.5:

Respondent

Honorable Jaclanel McFarland

Judge Presiding

PETITION FOR WRIT OF MANDAMUS 25

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

Kelly Stephens

Texas Bar No. 19158300

P.O Box 79734

Houston, Texas 77279-9734

Tel. 281-394-3287

Fax 832-476-5460

kstephens@stephensdominitz.com

/s/ Paul J. Downey

Paul J. Downey

PETITION FOR WRIT OF MANDAMUS 26

CAUSE NO. 2014-10896

LOS CUCOS MEXICAN CAFÉ VIII, § IN THE DISTRICT COURT

INC., LOS CUCOS MEXICAN §

CAFÉ IV, INC., MANUEL §

CABRERA, and SERGIO §

CABRERA §

PLAINTIFFS, §

§

V. § 133rd JUDICIAL DISTRICT

§

8650 FRISCO LLC, MANDONA §

LLC, GALOVELHO LLC, §

BAHTCHE LLC, CLAUDIO §

NUNES, AND DAVID JEIEL §

RODRIGUES §

DEFENDANT. § OF HARRIS COUNTY, TEXAS

APPENDIX AND RECORD

TABLE OF CONTENTS

Exhibit A - Respondent’s Order dated April 1, 2015 Compelling Production

of Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 1

Exhibit B - Respondent’s Order dated April 27, 2015 Compelling

Production of Documents and Imposing Sanctions;. . . . . . . . . . . . . App. 2

Exhibit C - TEX. R. CIV. P. 21a.. . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 4

Exhibit D - TEX. R. CIV. P. 63.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 6

Exhibit E - TEX. R. CIV. P. 65.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 7

Exhibit F - TEX. R. CIV. P. 96. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 8

Exhibit G - TEX. R. CIV. P. 162. . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 9

Exhibit H - TEX. R. CIV. P. 192.3. . . . . . . . . . . . . . . . . . . . . . . . . . App. 10

PETITION FOR WRIT OF MANDAMUS 27

Exhibit I - TEX. R. CIV. P. 192.7. . . . . . . . . . . . . . . . . . . . . . . . . . . App. 12

Exhibit J - TEX. R. CIV. P. 215.1. . . . . . . . . . . . . . . . . . . . . . . . . . App. 13

Exhibit K - Plaintiff’s Original Petition. . . . . . . . . . . . . . . . . . . . . . . App. 15

Exhibit L - Plaintiff’s Set of Discovery Requests, April 14, 2014. . . App. 26

Exhibit M - Defendant’s Original Answer. . . . . . . . . . . . . . . . . . . . . App. 38

Exhibit N - Transcript of Hearing, July 28, 2014. . . . . . . . . . . . . . . App. 42

Exhibit O - Respondent’s July 28, 2014, Order Compelling Production of

Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 93

Exhibit P - August 5, 2014 Transcript of Settlement Agreement. . . App. 95

Exhibit Q - Plaintiff’s Fourth Amended Petition. . . . . . . . . . . . . . . App. 100

Exhibit R - Plaintiff’s Second Motion to Enforce Court’s Order. . . App. 111

Exhibit S - Defendant’s Response to Second Motion to Enforce.. App. 329

Exhibit T - Defendant’s Supplement to Response to Second Motion to

Enforce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 337

Exhibit U - Letter to Attorney Kelly Stephens regarding service of

Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 342

Exhibit V - Plaintiff’s Third Motion to Enforce Court’s Order. . . . . App. 360

Exhibit W - Defendant’s Response to Plaintiff’s Third Motion

to Enforce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 430

Exhibit X - Respondent’s Order Denying Defendant’s Motion to Transfer

Venue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 439

Exhibit Y - Unsworn Declaration of Paul J. Downey regarding Plaintiff’s

PETITION FOR WRIT OF MANDAMUS 28

Discovery Requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 440

Exhibit Z - Statement of No Evidence. . . . . . . . . . . . . . . . . . . . . . . App. 442

PETITION FOR WRIT OF MANDAMUS 29

CAUSE NO. 2014-10896

LOS CUCOS MEXICAN CAFÉ VIII, § IN THE DISTRICT COURT

INC., LOS CUCOS MEXICAN §

CAFÉ IV, INC., MANUEL §

CABRERA, and SERGIO §

CABRERA §

PLAINTIFFS, §

§

V. § 133rd JUDICIAL DISTRICT

§

8650 FRISCO LLC, MANDONA §

LLC, GALOVELHO LLC, §

BAHTCHE LLC, CLAUDIO §

NUNES, AND DAVID JEIEL §

RODRIGUES §

DEFENDANT. § OF HARRIS COUNTY, TEXAS

UNSWORN DECLARATION OF PAUL J. DOWNEY

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

this unsworn declaration, and personally acquainted with the facts

herein stated.

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

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

4. Attached hereto are the following 444 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- Respondent's Order dated April 1, 2015 Compelling

Production of Documents;

b. Exhibit 8 - Respondent's Order dated April 27, 2015

Compelling Production of Documents and Imposing Sanction;

c. Exhibit C- TEX. R. CIV. P. 21 a;

d. Exhibit D -TEX. R. CIV. P. 63;

e. Exhibit E- TEX. R. CIV. P. 65;

f. Exhibit F -TEX. R. CIV. P. 96;

g. Exhibit G- TEX. R. CIV. P. 162;

h. Exhibit H- TEX. R. CIV. P. 192.3;

1. Exhibit I- TEX. R. CIV. P. 192.7;

J. Exhibit J -TEX. R. CIV. P. 215.1 ;

k. Exhibit K - Plaintiff's Original Petition;

I. Exhibit L- Plaintiff's Set of Discovery Requests, April 14, 2014

m. Exhibit M - Defendant's Original Answer;

n. Exhibit N -Transcript of Hearing, July 28, 2014;

o. Exhibit 0 - Respondent's July 28, 2014 Order Compelling

Production of Documents;

p. Exhibit P -August 5, 2014, Transcript of Settlement

Agreement;

q. Exhibit Q - Plaintiff's Fourth Amended Petition ;

r. Exhibit R - Plaintiff's Second Motion to Enforce Court's Order;

s. Exhibit S - Defendant's Response to Second Motion to Enforce;

t. Exhibit T- Defendant's Supplement to Response to Second

Motion to Enforce;

u. Exhibit U - Letter to Attorney Kelly Stephens regarding service

of Documents;

v. Exhibit V- Plaintiff's Third Motion to Enforce Court's Order;

w. Exhibit W- Defendant's Response to Plaintiff's Third Motion to

Enforce.

x. Exhibit X - Respondent's March 23, 2015 Order Denying

Defendant's Motion to Transfer Venue

y. Exhibit Y- Unsworn Declaration of Paul J. Downey regarding

Plaintiff's Discovery Requests.

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.

r/~R :~

Paul J . Downey .,. "

Exhibit A

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Rule 21a. Methods of Service, TX R RCP Rule 21a

Vernon's Texas Rules Annotated

Texas Rules of Civil Procedure

Part II. Rules of Practice in District and County Courts

Section 1. General Rules (Refs & Annos)

TX Rules of Civil Procedure, Rule 21a

Rule 21a. Methods of Service

Currentness

(a) Methods of Service. Every notice required by these rules, and every pleading, plea, motion, or other form of request required

to be served under Rule 21, other than the citation to be served upon the filing of a cause of action and except as otherwise

expressly provided in these rules, may be served by delivering a copy to the party to be served, or the party's duly authorized

agent or attorney of record in the manner specified below:

(1) Documents Filed Electronically. A document filed electronically under Rule 21 must be served electronically through the

electronic filing manager if the email address of the party or attorney to be served is on file with the electronic filing manager.

If the email address of the party or attorney to be served is not on file with the electronic filing manager, the document may

be served on that party or attorney under subparagraph (2).

(2) Documents Not Filed Electronically. A document not filed electronically may be served in person, mail, by commercial

delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.

(b) When Complete.

(1) Service by mail or commercial delivery service shall be complete upon deposit of the document, postpaid and properly

addressed, in the mail or with a commercial delivery service.

(2) Service by fax is complete on receipt. Service completed after 5:00 p.m. local time of the recipient shall be deemed served

on the following day.

(3) Electronic service is complete on transmission of the document to the serving party's electronic filing service provider.

The electronic filing manager will send confirmation of service to the serving party.

(c) Time for Action After Service. Whenever a party has the right or is required to do some act within a prescribed period after

the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added

to the prescribed period.

(d) Who May Serve. Notice may be served by a party to the suit, an attorney of record, a sheriff or constable, or by any other

person competent to testify.

Exhibit ©C2015 Thomson Reuters. No claim to original U.S. Government Works. App. 4 1

Rule 21a. Methods of Service, TX R RCP Rule 21a

(e) Proof of Service. The party or attorney of record shall certify to the court compliance with this rule in writing over signature

and on the filed instrument. A certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any

other person showing service of a notice shall be prima facie evidence of the fact of service. Nothing herein shall preclude any

party from offering proof that the document was not received, or, if service was by mail, that the document was not received

within three days from the date that it was deposited in the mail, and upon so finding, the court may extend the time for taking

the action required of such party or grant such other relief as it deems just.

(f) Procedures Cumulative. These provisions are cumulative of all other methods of service prescribed by these rules.

Credits

Aug. 18, 1947, eff. Dec. 31, 1947. Amended by orders of July 21, 1970, eff. Jan. 1, 1971; Oct. 3, 1972, eff. Feb. 1, 1973; July

11, 1977, eff. Jan. 1, 1978; June 10, 1980, eff. Jan. 1, 1981; Dec. 5, 1983, eff. April 1, 1984; April 24, 1990, eff. Sept. 1, 1990;

Dec. 11, 2013, eff. Jan. 1, 2014.

Editors' Notes

COMMENT--2013

Rule 21a is revised to incorporate rules for electronic service in accordance with the Supreme Court's order--Misc.

Docket No. 12-9206, amended by Misc. Docket Nos. 13-9092 and 13-9164--mandating electronic filing in civil cases

beginning on January 1, 2014.

Notes of Decisions (327)

Vernon's Ann. Texas Rules Civ. Proc., Rule 21a, TX R RCP Rule 21a

Current with amendments received through 3/15/2015

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Exhibit ©C2015 Thomson Reuters. No claim to original U.S. Government Works. App. 5 2

Rule 63. Amendments and Responsive Pleadings, TX R RCP Rule 63

Vernon's Texas Rules Annotated

Texas Rules of Civil Procedure

Part II. Rules of Practice in District and County Courts

Section 4. Pleading

A. General

TX Rules of Civil Procedure, Rule 63

Rule 63. Amendments and Responsive Pleadings

Currentness

Parties may amend their pleadings, respond to pleadings on file of other parties, file suggestions of death and make representative

parties, and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise

to the opposite party; provided, that any pleadings, responses or pleas offered for filing within seven days of the date of trial

or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge

is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to

the opposite party.

Credits

Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of July 26, 1960, eff. Jan. 1, 1961; April 24, 1990, eff. Sept. 1, 1990.

Notes of Decisions (724)

Vernon's Ann. Texas Rules Civ. Proc., Rule 63, TX R RCP Rule 63

Current with amendments received through 3/15/2015

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Exhibit ©D2015 Thomson Reuters. No claim to original U.S. Government Works. App. 6 1

Rule 65. Substituted Instrument Takes Place of Original, TX R RCP Rule 65

Vernon's Texas Rules Annotated

Texas Rules of Civil Procedure

Part II. Rules of Practice in District and County Courts

Section 4. Pleading

A. General

TX Rules of Civil Procedure, Rule 65

Rule 65. Substituted Instrument Takes Place of Original

Currentness

Unless the substituted instrument shall be set aside on exceptions, the instrument for which it is substituted shall no longer be

regarded as a part of the pleading in the record of the cause, unless some error of the court in deciding upon the necessity of

the amendment, or otherwise in superseding it, be complained of, and exception be taken to the action of the court, or unless

it be necessary to look to the superseded pleading upon a question of limitation.

Credits

Oct. 29, 1940, eff. Sept. 1, 1941.

Notes of Decisions (101)

Vernon's Ann. Texas Rules Civ. Proc., Rule 65, TX R RCP Rule 65

Current with amendments received through 3/15/2015

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Rule 96. No Discontinuance, TX R RCP Rule 96

Vernon's Texas Rules Annotated

Texas Rules of Civil Procedure

Part II. Rules of Practice in District and County Courts

Section 4. Pleading

C. Pleadings of Defendant

TX Rules of Civil Procedure, Rule 96

Rule 96. No Discontinuance

Currentness

Where the defendant has filed a counterclaim seeking affirmative relief, the plaintiff shall not be permitted by a discontinuance

of his suit, to prejudice the right of the defendant to be heard on such counterclaim.

Credits

Oct. 29, 1940, eff. Sept. 1, 1941.

Notes of Decisions (10)

Vernon's Ann. Texas Rules Civ. Proc., Rule 96, TX R RCP Rule 96

Current with amendments received through 3/15/2015

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Rule 162. Dismissal or Non-Suit, TX R RCP Rule 162

Vernon's Texas Rules Annotated

Texas Rules of Civil Procedure

Part II. Rules of Practice in District and County Courts

Section 7. Abatement and Discontinuance of Suit

TX Rules of Civil Procedure, Rule 162

Rule 162. Dismissal or Non-Suit

Currentness

At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case,

or take a non-suit, which shall be entered in the minutes. Notice of the dismissal or non-suit shall be served in accordance with

Rule 21a on any party who has answered or has been served with process without necessity of court order.

Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative

relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for

sanctions, attorney's fees or other costs, pending at the time of dismissal, as determined by the court. Any dismissal pursuant to

this rule which terminates the case shall authorize the clerk to tax court costs against dismissing party unless otherwise ordered

by the court.

Credits

Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Dec. 5, 1983, eff. April 1, 1984; July 15, 1987, eff. Jan. 1, 1988.

Notes of Decisions (639)

Vernon's Ann. Texas Rules Civ. Proc., Rule 162, TX R RCP Rule 162

Current with amendments received through 3/15/2015

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Exhibit ©G2015 Thomson Reuters. No claim to original U.S. Government Works. App. 9 1

192.3. Scope of Discovery, TX R RCP Rule 192.3

Vernon's Texas Rules Annotated

Texas Rules of Civil Procedure

Part II. Rules of Practice in District and County Courts

Section 9. Evidence and Discovery (Refs & Annos)

B. Discovery

Rule 192. Permissible Discovery: Forms and Scope; Work Product; Protective Orders; Definitions

(Refs & Annos)

TX Rules of Civil Procedure, Rule 192.3

192.3. Scope of Discovery

Currentness

(a) Generally. In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject

matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense

of any other party. It is not a ground for objection that the information sought will be inadmissible at trial if the information

sought appears reasonably calculated to lead to the discovery of admissible evidence.

(b) Documents and Tangible Things. A party may obtain discovery of the existence, description, nature, custody, condition,

location, and contents of documents and tangible things (including papers, books, accounts, drawings, graphs, charts,

photographs, electronic or videotape recordings, data, and data compilations) that constitute or contain matters relevant to the

subject matter of the action. A person is required to produce a document or tangible thing that is within the person's possession,

custody, or control.

(c) Persons with Knowledge of Relevant Facts. A party may obtain discovery of the name, address, and telephone number of

persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case. A person

has knowledge of relevant facts when that person has or may have knowledge of any discoverable matter. The person need not

have admissible information or personal knowledge of the facts. An expert is “a person with knowledge of relevant facts” only

if that knowledge was obtained first-hand or if it was not obtained in preparation for trial or in anticipation of litigation.

(d) Trial Witnesses. A party may obtain discovery of the name, address, and telephone number of any person who is expected to

be called to testify at trial. This paragraph does not apply to rebuttal or impeaching witnesses the necessity of whose testimony

cannot reasonably be anticipated before trial.

(e) Testifying and Consulting Experts. The identity, mental impressions, and opinions of a consulting expert whose mental

impressions and opinions have not been reviewed by a testifying expert are not discoverable. A party may discover the following

information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been

reviewed by a testifying expert:

(1) the expert's name, address, and telephone number;

(2) the subject matter on which a testifying expert will testify;

(3) the facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed

or made in connection with the case in which the discovery is sought, regardless of when and how the factual information

was acquired;

Exhibit ©H2015 Thomson Reuters. No claim to original U.S. Government Works. App. 10 1

192.3. Scope of Discovery, TX R RCP Rule 192.3

(4) the expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought,

and any methods used to derive them;

(5) any bias of the witness;

(6) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared

by or for the expert in anticipation of a testifying expert's testimony;

(7) the expert's current resume and bibliography.

(f) Indemnity and Insuring Agreements. Except as otherwise provided by law, a party may obtain discovery of the existence

and contents of any indemnity or insurance agreement under which any person may be liable to satisfy part or all of a judgment

rendered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the

indemnity or insurance agreement is not by reason of disclosure admissible in evidence at trial.

(g) Settlement Agreements. A party may obtain discovery of the existence and contents of any relevant portions of a settlement

agreement. Information concerning a settlement agreement is not by reason of disclosure admissible in evidence at trial.

(h) Statements of Persons with Knowledge of Relevant Facts. A party may obtain discovery of the statement of any person with

knowledge of relevant facts--a “witness statement”--regardless of when the statement was made. A witness statement is (1) a

written statement signed or otherwise adopted or approved in writing by the person making it, or (2) a stenographic, mechanical,

electrical, or other type of recording of a witness's oral statement, or any substantially verbatim transcription of such a recording.

Notes taken during a conversation or interview with a witness are not a witness statement. Any person may obtain, upon written

request, his or her own statement concerning the lawsuit, which is in the possession, custody or control of any party.

(i) Potential Parties. A party may obtain discovery of the name, address, and telephone number of any potential party.

(j) Contentions. A party may obtain discovery of any other party's legal contentions and the factual bases for those contentions.

Credits

Aug. 5, 1998 and amended Nov. 9, 1998, eff. Jan. 1, 1999.

Notes of Decisions (179)

Vernon's Ann. Texas Rules Civ. Proc., Rule 192.3, TX R RCP Rule 192.3

Current with amendments received through 3/15/2015

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Exhibit ©H2015 Thomson Reuters. No claim to original U.S. Government Works. App. 11 2

192.7. Definitions, TX R RCP Rule 192.7

Vernon's Texas Rules Annotated

Texas Rules of Civil Procedure

Part II. Rules of Practice in District and County Courts

Section 9. Evidence and Discovery (Refs & Annos)

B. Discovery

Rule 192. Permissible Discovery: Forms and Scope; Work Product; Protective Orders; Definitions

(Refs & Annos)

TX Rules of Civil Procedure, Rule 192.7

192.7. Definitions

Currentness

As used in these rules--

(a) Written Discovery means requests for disclosure, requests for production and inspection of documents and tangible things,

requests for entry onto property, interrogatories, and requests for admission.

(b) Possession, Custody, or Control of an item means that the person either has physical possession of the item or has a right

to possession of the item that is equal or superior to the person who has physical possession of the item.

(c) A Testifying Expert is an expert who may be called to testify as an expert witness at trial.

(d) A Consulting Expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of

litigation or in preparation for trial, but who is not a testifying expert.

Credits

Aug. 5, 1998 and amended Nov. 9, 1998, eff. Jan. 1, 1999.

Notes of Decisions (10)

Vernon's Ann. Texas Rules Civ. Proc., Rule 192.7, TX R RCP Rule 192.7

Current with amendments received through 3/15/2015

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215.1. Motion for Sanctions or Order Compelling Discovery, TX R RCP Rule 215.1

Vernon's Texas Rules Annotated

Texas Rules of Civil Procedure

Part II. Rules of Practice in District and County Courts

Section 9. Evidence and Discovery (Refs & Annos)

B. Discovery

Rule 215. Abuse of Discovery; Sanctions (Refs & Annos)

TX Rules of Civil Procedure, Rule 215.1

215.1. Motion for Sanctions or Order Compelling Discovery

Currentness

A party, upon reasonable notice to other parties and all other persons affected thereby, may apply for sanctions or an order

compelling discovery as follows:

(a) Appropriate Court. On matters relating to a deposition, an application for an order to a party may be made to the court in

which the action is pending, or to any district court in the district where the deposition is being taken. An application for an

order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken. As to all

other discovery matters, an application for an order will be made to the court in which the action is pending.

(b) Motion.

(1) If a party or other deponent which is a corporation or other entity fails to make a designation under Rules 199.2(b)(1)

or 200.1(b); or

(2) If a party, or other deponent, or a person designated to testify on behalf of a party or other deponent fails:

(A) to appear before the officer who is to take his deposition, after being served with a proper notice; or

(B) to answer a question propounded or submitted upon oral examination or upon written questions; or

(3) if a party fails:

(A) to serve answers or objections to interrogatories submitted under Rule 197, 1 after proper service of the interrogatories;

or

(B) to answer an interrogatory submitted under Rule 197; or

(C) to serve a written response to a request for inspection submitted under Rule 196, 2 after proper service of the request; or

(D) to respond that discovery will be permitted as requested or fails to permit discovery as requested in response to a

request for inspection submitted under Rule 196;

the discovering party may move for an order compelling a designation, an appearance, an answer or answers, or inspection

or production in accordance with the request, or apply to the court in which the action is pending for the imposition of

any sanction authorized by Rule 215.2(b) without the necessity of first having obtained a court order compelling such

discovery.

Exhibit ©J 2015 Thomson Reuters. No claim to original U.S. Government Works. App. 13 1

215.1. Motion for Sanctions or Order Compelling Discovery, TX R RCP Rule 215.1

When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination

before he applies for an order.

If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered

to make on a motion pursuant to Rule 192.6.

(c) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure

to answer.

(d) Disposition of Motion to Compel: Award of Expenses. If the motion is granted, the court shall, after opportunity for hearing,

require a party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them

to pay, at such time as ordered by the court, the moving party the reasonable expenses incurred in obtaining the order, including

attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances

make an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment.

If the motion is denied, the court may, after opportunity for hearing, require the moving party or attorney advising such motion

to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including

attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make

an award of expenses unjust.

If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the

motion among the parties and persons in a just manner.

In determining the amount of reasonable expenses, including attorney fees, to be awarded in connection with a motion, the trial

court shall award expenses which are reasonable in relation to the amount of work reasonably expended in obtaining an order

compelling compliance or in opposing a motion which is denied.

(e) Providing Person's Own Statement. If a party fails to comply with any person's written request for the person's own statement

as provided in Rule 192.3(h), the person who made the request may move for an order compelling compliance. If the motion

is granted, the movant may recover the expenses incurred in obtaining the order, including attorney fees, which are reasonable

in relation to the amount of work reasonably expended in obtaining the order.

Credits

Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Aug. 5, 1998, and Nov. 9, 1998, eff. Jan. 1, 1999.

Notes of Decisions (51)

Footnotes

1 Vernon's Ann.Rules Civ.Proc., rule 197.1 et seq.

2 Vernon's Ann.Rules Civ.Proc., rule 196.1 et seq.

Vernon's Ann. Texas Rules Civ. Proc., Rule 215.1, TX R RCP Rule 215.1

Current with amendments received through 3/15/2015

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03/12/2014 21:51 #0650 P.002 /011

CAUS~NO.

t,D/4./- /IJ9''

_____________

LOS CUCOS MEXICAN CAFE vm, § IN THE DISTRICT COURT OF

INC., LOS CUCOS MEXICAN CAFE' §

IV, INC., MANUEL CAB.RERA, and §

SERGIO CABRERA §

§

Plaintilfs, §

§

vs. § HARRIS cOUNTY, TEXAS

§

8650 FRISCO, LLC d/b/a ESTILO§

GAUCHO BRA.ZlLIAN STEAKHOUSE, §

MANDONA, LLC, GALOVELHO, LLC, §

BAHTCHE, LLC, CLAUDIO NUNES §

,.,~.

and DAVID JEIEL RODRIGUES §

§

Derendan~. § /JJ-JUDlCIALDISTRICf

PLAINTIFF'S ORIGINAL PETITION

Plaintiff>, Los Cucos Mexican Cafe Vlll, lnc., Los Cucos Mexican Cafe IV, Inc., Manuel

Cabrera and Sergio Cabrera, file this their Original Petition against Defendants, 8650 Frisco,

LLC d/b/a Estilo Gaucho Brazilian Steak.house, Man dona, LLC, Galovelho, LLC, Bahtche, LLC,

Claudio Nunes alk/a Alex Nunes and David Jcicl Rogrigues, and for cause of action would show:

Discovery Control Plan

I. Plaintiffs intend to conduct discovery under Level 3 of Rule 190.3 of the Texas

Rules of Civil Procedure.

2. Plaintiffs seek damages within the jurisdictional limits of this Court, monetary

relief over $1,000,000.

Parties

3. Plaintiff, Los Cucos Mexican Cafe VI!I, Inc., ("Los Cucos VHJ") is a Texas

Corporation with i~ principal place ofbusiness in Houston, Hanis County, Texas.

Page 1 oflO

Exhibit K App. 15

03/12/2014 21:51 #0650 P.003 /011

4. Plaintiff, Los Cucos Mexican Cafe IV, Inc., ("Los Cucos IV") is a Texas

Corporation with its principal place of business in Houston, Harris County, Texas.

5. Plaintiff, Manuel Cabrera is an individual who resides in Austin County, Texas.

6. Plaintiff. Sergio Cabrera is an individual who resides in Houston, Harris County,

Texas.

7. Defendant, 8650 Frisco, LLC, ("8650 Frisco") is a Texas limited liability

company doing business as Estilo Gaucho BrBJ;ilian Steakhousc, with its principal place of

business at 8650 llighway 121, Frisco, Collin County, Texas, which may be located for service

of process by and through its Registered Agent:

Hoftinan Kaliser & Messina, P.C.

17950 Preston Road, Suite 230

Dallas, Dallas County, Texas 75252

8. Defendant, Mandona, LLC, ("Mandona") is a Texas limited liability company

with its principal place of bu5iness at 8650 Highway 121, Frisco, Collin County, Texas, which

may be located for service of process by and through its Registered Agent:

Hoffman Kaliser & Messina, P.C.

17950 Preston Road, Suite 230

Dallas, Dallas County, Texas 75252

9. Defendant, Galovelho, LLC, ("Galovelho") is a Texas limited liability company

with its principal place of business at 8650 Highway 121, Frisco, Collin County, Texas, which

may be located for service of process by and through its Registered Agent:

Hoffman Kaliser & Messina, P.C.

17950 Preston Road, Suite 230

Dallas, Dallas County, Texas 75252

Pagc2 oflO

Exhibit K App. 16

03/12/2014 21:52 #0650 P.004 /011

I 0. Defendant, Bahtche, LLC, ("Bahtche") is a Texas limited liability company with

its principal place of business at 8650 Highway 121, Frisco, Collin County, Texas, which may be

located for service of process by and through its Registered Agent;

Hoffman Kaliser & Messina, P.C.

17950 Preston Road, Suite 230

Dallas, Dallas County, Texas 75252

II. Defendant, Claudio Nunes a/kJa Alex Nunes ("Nunes") is in individual citizen of

Texas who may be located for service of process at his principal place of business:

Claudio "Alex" Nunes

8650 HW 121

Frisco, Collin County, Texas 75034

12. Defendant, David Jeiel Rodrigues ("Rodrigues") is in individual citizen of Texas

who may be located for service of process at his principal place of business:

David Jciel Rodrigues

8650HW 121

Frisco, Collin County, Texas 75034

Venue & Jurisdiction

13. Venue is proper under TEx. Clv. PIU\C. & RllM. Com;§ l5.002(a)(l) because a

substantial part of the events giving rise to this lawsuit occurred within this county.

14. Jurisdiption is proper in this Court because the parties are all Texas residents and

the amount in controversy is within the jurisdictional limits of the court.

Factual Background

15. Manuel Cabrera and Sergio Cabrera arc the owners and operators of a number of

Mexican restaurants branded and known as Los Cucos Mexican Cafe. Each restaurant is a

separate legal entity registered with the State of Texas. Los Cucos VID and Los Cucos TV are

two of these entities.

Page 3 oflO

Exhibit K App. 17

03/12/2014 21:52 #0650 P.005 /011

16. Sometime in 2010, Nunes approached Sergio Cabrera with the idea to enter into a

venture to build and operate a Brazilian steakhouse.

17. Initially, the parties agreed that Los Cucos Vlli, Inc., would fund the construction

and outfitting of the restaurant and that Nunes would manage the construction and build out, and

then Nunes would operate the restaurant. The parties agreed that Los Cucos Vlll would support

the operating restaurant until such time as it began to make money on a consistent basis by:

a. directly funding the construction and outfitting of the structure;

b. guaranteeing the property lease on the real estate;

c. guaranteeing the food and drink vendors supplying the restaurant; and,

d. contributing such cash flow such that for the first month, the

restaurant could pay Nunes a management fee.

18. At some point in the negotiation, Rodrigues entered the picture as a partner with

Nunes in the anticipated project.

19. Eventually, in approximately March, 2012, the project developed into the

following corporate structure:

a 8650 Frisco was set up to be the operating restaurant entity.

b. Galovelho was set up to be a member in 8650 Frisco and to represent the

ownership of Nunes and Rodriques.

c. Mandona was set up by Nunes and Rodriques to be the manager of 8650

Frisco.

d. Los Cucos VIII was to be a member in 8650 Frisco and to represent the

interest of Manuel and Sergio Cabrera.

Page 4 oflO

Exhibit K App. 18

03/12/2014 21:53 #0650 P.006 /011

e. All assets contributed to or which were developed as the property of the

venture were to be owned by 8650 Frisco.

20. In the beginning, as agreed, bank accounts were set up in the name of 8650 Frisco

and all parties had access to such accounts.

21. Further, it was the agreement that after the first month of operation:

a. If the available distributable cash was less than or equal to $20,000.00, it

would be split 50/50 between the members;

b. lfthe available distributable cash was greater than $20,000 and Los Cucos

VIII had not been fully paid back its cash contributions the cash would be paid

$10,000 to Galovelho and the remainder would be paid to Los Cueos Vlll; and,

c. lf the available distributable cash was greater than $20,000 and Los Cuco

Vlll had been fully paid back its cash contributions the cash would be paid to

each member on a 50/50 basis.

22. Los Cucos Vlli put in excess of$1.2 million into the project from 2010 through

early 2013.

23. Los Cucos TV paid for and loaned to the project equipment and furniture costing

in excess of $60,000. In particular, Los Cucos TV paid for two large Brazilian grills and had

them shipped to the United States. These grills are highly specialized and not readily available

on the U.S. market.

24. Manuel and Sergio Cabrera were required to and did personally guarantee the real

estate lease.

?"

-~- The restaurant has been operating since Feb 20!3 and on information and belief is

generating $40,000.00 to $60,000.00 per month in distributable cash.

Page5ofl0

Exhibit K App. 19

03/12/2014 21:53 #0650 P.007 /011

26. In March 2012, Los Cucos VIII began to propose a written company agreement to

control tbe operation of tbe project. Galovclho, Nunes, Rodrigues and Mandona have refused

and continue to refuse to execute such agreement.

27. Upon information and belief 8650 Frisco has over the last year of operation buill a

cash surplus in excess of$180,000.00, yet Los Cucos has not been received any distributions.

28. PlaintiffS recently discovered tbat Galovelho, Nunes, Rodrigues and Mandona

have moved the bank accounts of 8650 Frisco and arc denying Los Cucos Vlll access to same in

violation of the agreement.

29. Galovelho, Nunes, Rodrigues and Mandona have taken total control of the project

and have not issued Los Cucos VITJ its agreed ownership interest in 8650 Frisco. In addition,

they have hidden the partnership assets and bank accounts and refuse to account for same to Los

Cucos Vlll.

30. It has been learned tbat Bahtche, a company owned and controlled by Nunes and

Rodrigues has applied to the United States Patent and Trademark office tbr a Trademark on the

name Ei.tilo Gaucho Brazilian Steakhouse. This name and/or mark is the property of 8650 Frisco.

31. Los Cucos IV has made written demand for the return ofits property. 8650 Frisco,

Galovclho, Mandona, Nunes, and Rodrigues have refused to return same and/or have refused to

allow Los Cucos TV entry upon the property to collect said property.

Causes of Action

A. Breacb of Contract

32. Los Cucos VIII asserts a cause of action for breach of the agreement to develop

and operate 8650 Frisco as to all Defendants.

Page6ofl0

Exhibit K App. 20

03/12/2014 21:54 #0650 P.008 /011

B. Conversion

33. Defendants have converted Los Cucos IV' s properly by wrongfully exercising

dominion and control over it.

34. Defendants have converted certain bank accounts belonging to 8650 Frisco.

35. Bahtche, the direction and control of Nunes and Rodrigues has converted the

trade name and mark of8650 Frisco.

C. Fraud/Fraudulent Inducement

36. Defendants' conduct constitutes actual fraud against Los Cucos VIII.

37. The acts of fraud were intentional and were meant specifically to enrich

Defendants to the detriment of Los Cucos VIII. Los Cucos VJII has suffered damage as a result

of Defendant~' fraudulent conduct.

38. Defendants' fraudulent representations were made with the specific intent to

cause and have caused Manuel and Sergio Cabrera to guarantee the lease for 8650 Frisco.

D. Civil Conspiracy

39. Nunes, Rodrigues, Mandona, Galovelho, 8650 Frisco and Bahtche have combined

to accomplish the unlawful purposes (or lawful purposes by unlawful means) of fraud, breach of

fiduciary duty, and conversion as enumerated above. Defendants had a meeting of the minds on

their objects and courses of action.

E. AlterEgo

40. Plaintiffs assert that 8650 Frisco, Mandona, Galovelho and Bahtche are a mere

tools or business conduits (alter ego) of Nunes and Rodrigues. Nunes and Rodrigues are the

principal/only shareholders of 8650 Frisco, Mandona, Galovelho and Baheche, such that there is

such unity between Nunes/Rodrigues and 8650 Frisco, Mandona, Galovclho and Baheche, that

Page 7 oflO

Exhibit K App. 21

03/12/2014 21:54 #0650 P.009 /011

any separation of entities has ceased from a liability perspective. As such there is joint and

several liability between Nunes, Rodrigues and 8650 Frisco, Man dona, Galovelho and Baheche.

F. Unjust Enrichment/Quantum Meruit

4 I. Plaintiffs assert that Defendants have been unjustly enriched by the receipt of

money and the receipt and use of property belonging to Plaintiffs. Defendants received the

money and property knowing that the Plaintiffs expected to be compensated, but Defendants

made use of and benefited from the money and property without returning any value to Plaintiffs.

F. Accounting

42. Los Cucos Vlll seeks an accounting from Nunes, Rodrigues and 8650 Frisco,

Mandona, Galovelho and Babcchc for amounts due under the agreement that have been diverted

by Defendants.

Damages

43. Plaintiffs seck actual damages in excess of the minimum jurisdiction of this court.

44. Plaintiffs seek exemplary damages in amount not to exceed twice the actual

damages shown.

Attorneys' Fees

45. Plaintiff is entitled to recover the attorneys' fees that it incurs in prosecuting the

above stated claims pursuant to Chapters 37 and 38 the TEX Crv. PRAC. & REM. CoDE as well as

oilier laws and statutes of the State of Texas.

Conditions Precedent

46. All conditions precedent to Plaintiffs' claims and causes of action have been

performed or have occurred.

Page 8 oflO

Exhibit K App. 22

03/12/201~ 21:54 #0650 P.010 /011

Pr.ayer

47. For these reasons, Plaintiffs ask that it be awarded the following relief:

a. that the Court order an accounting;

b. that Plaintiffs be awarded their actual, special and consequential damages;

c. that Plaintiffs be awarded exemplary damages;

d. that Plaintiffs be awarded costs and attorneys' fees;

e. that Plainti!Is be awarded pre and post-judgment interest; and

f. that Plaintiffs receive all other relief, at law or in equity, to which they may be

justly entitled.

Respectfully submitted,

STEPHENS & DoMNITZ, PLLC

Is/Kelly D. Stephens

Kelly D. Stephens

SBN: 19158300

P.O. Box 79734

Houston, Texas 77279-9734

Tel: 281-394-3287

Fax: 832-476-5460

kstephensr@stephensdomnitT..com

ATTORNEY FOR PLAINTIFFS

LOS CUCOS MEXICAN CAFE Vill, Inc.,

LOS CUCOS MEXICAN CAFE IV, Inc.,

MANUEL CABRERA, and

SERGIO CABRERA

Page 9 oflO

Exhibit K App. 23

03/12/201< 21:55 #0650 P.Oll /011

HAWASH MEADE GASTON NEESE & CICACK LLP

/s/ Andrew K. Meade

Andrew K. Meade

State Bar No. 24032854

2118 Smith Street

Houston, Texas 77002

713-658-9006 (Direct & Fax)

ameade@hmgllp.com

ATTORNEYSFORPLAlNTITFS

LOS CUCOS MEXICAN CAFE Vlli, Inc.,

LOS CUCOS MEXICAN CAFE IV, Inc.,

MANUELCABRERA,ood

SERGIO CABRERA

Page 10 oflO

Exhibit K App. 24

03/12/2014 21:51 #0650 P.OOl /011

STEPHENS & DoMNITZ, PLLC

ATTORNEYS AT lAW

P.o. Box 79734 TELI:PHONE 281-394-3287

HOUSTON, TEXAS 77279-9734 FACS/Mil£ 713-476-0460

To: Nick Mosser, The Mosser Law Firm From: Kelly D. Stephens

Fax: 972-267-5072 Pages: 11 . Including cover

Phone: Date: March 13, 2014

Re: Los cucos v. 8650 Frisco CC:

0 Urgent D For Review 0 Please Comment 0 Please Reply 0 Please Recycle

• Comments:

Copy of Plaintiffs Original Petition

Exhibit K App. 25

CAUSE NO. 2014-01089

LOS CUCOS MEXICAN CAFE § IN THE DISTRICT COURT OF

VIII, INC.; 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, §

Defendants § 133rd JUDICIAL DISTRICT

PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS TO 8650 FRISCO, LLC

D/B/A ESTILO GAUCHO BRAZILIAN STEAKHOUSE

TO: Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse, by and

through its counsel of record, Nicholas D. Mosser and Benjamin Casey, Mosser

Law PLLC, 17110 Dallas Parkway, Suite 290, Dallas, Texas 75248.

Pursuant to the Texas Rules of Civil Procedure, Plaintiffs Los Cucos Mexican

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

(“Plaintiffs”) serve their First Set of Requests for Admissions, Requests for Production

and First Set of Interrogatories on Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho

Brazilian Steakhouse (“Defendant”) as authorized by Rules 196 and 198, TEX. R. CIV. P.

Defendant must specifically admit or deny and produce all requested documents in its

possession, custody, or control (as they are kept in the ordinary course of business or

organized and labeled to correspond with categories in each request) for inspection and

Exhibit L App. 26

copying, and not more than 30 days after service, at the office of HAWASH MEADE

GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.

Respectfully submitted,

STEPHENS & DOMNITZ, PLLC

/s/ Kelly D. Stephens

Kelly D. Stephens

SBN: 19158300

P.O. Box 79734

Houston, Texas 77279-9734

Tel: 281-394-3287

Fax: 832-476-5460

kstephens@stephensdomnitz.com

HAWASH MEADE GASTON NEESE

& CICACK LLP

/s/ Andrew K. Meade

Andrew K. Meade

State Bar No. 24032854

Jeremy M. Masten

State Bar No. 24083454

2118 Smith Street

Houston, Texas 77002

713-658-9006 (Direct & Fax)

ameade@hmgllp.com

jmasten@hmgllp.com

ATTORNEYS FOR PLAINTIFFS

LOS CUCOS MEXICAN CAFÉ VIII, Inc.,

LOS CUCOS MEXICAN CAFÉ IV, Inc.,

MANUEL CABRERA, and

SERGIO CABRERA

2

Exhibit L App. 27

CERTIFICATE OF SERVICE

A true and correct copy of the foregoing document has been served to the

following pursuant to the Texas Rules of Civil Procedure on April 14, 2014.

Via Fax: 972-267-5072 and

email: courtdocuments@mosserlaw.com

James C. Mosser

Nicholas D. Mosser

Mosser Law PLLC

17110 Dallas Pkwy, Suite 290

Dallas, TX 75248

/s/ Andrew K. Meade

Andrew K. Meade

3

Exhibit L App. 28

DEFINITIONS AND INSTRUCTIONS

1. As used throughout this request (including these definitions and

instructions), the term “documents” means each and every document (as defined in

Rule 34, FED. R. CIV. P.), all electronically stored information, and each and every

tangible thing, including but not limited to both electronic and hard copy documents, in

the possession, custody, or control of Plaintiff, whether a copy, draft, or original,

wherever located, with all exhibits, attachments, and schedules, including but not

limited to the following: correspondence and drafts of correspondence; notes or

summaries of conversations; income tax returns, forms, schedules, or worksheets; inter-

and intra-office memoranda; reports; comments; worksheets; plans; minutes; notes;

notices or notifications; findings; conclusions; memoranda; contracts or agreements of

any kind; brochures, circulars, bulletins, advertisements, sales catalogs or literature;

packages, packaging, and package inserts; notes, records, summaries, or other reports of

conferences, meetings, visits, surveys, discussions, inspections, examinations, reviews

or telephone conversations; purchase orders, quotations, estimates, invoices, bids,

receipts, or acknowledgements, including the reverse sides of all such documents with

printing, typing or writing on the reverse sides; bills of lading and other shipping

documents; credit agreements or credit memoranda; contract or lease offers or

proposals; executed or proposed agreements, contracts, franchise agreements, licenses,

leases, insurance policies and riders, or options; proposals; diaries; desk calendars,

appointment books, or telephone call books; property valuations or appraisals, and

their updates; affidavits, depositions, transcripts and statements, or summaries or

excerpts thereof; stenographic notes; books and records; financial data; stock certificates

and evidence of stock ownership; newspaper or magazine articles; pamphlets, books,

texts, notebooks, magazines, manuals, journals, and publications; notepads, tabulations,

data compilations, calculations, or computations; schedules; drafts; charts and maps;

forecasts and projections; drawings, designs, plans, specifications, graphs, blueprints,

sketches, or diagrams; orders; pleadings and court filings; checks and check stubs (front

and back); records or transcripts of statements, depositions, conversations, meetings,

discussions, conferences or interviews, whether in person or by telephone or by other

means; workpapers; printouts or other stored information from computers or other

information retention or processing systems; e-mail or electronic mail or

communications, in whatever form; instant messages in whatever form; photographic

matter or sound reproduction matter however produced, reproduced or stored;

government reports, regulations, filings or orders; any other written, printed, typed,

taped, recorded, or graphic matters; any exhibits, attachments, or schedules to or with

the foregoing; any drafts of the foregoing; and any copies or duplicates of the foregoing

that are different because of marginal or handwritten notations, or because of any

markings thereon or alterations thereof.

2. All electronically stored information should be produced as an electronic

copy, preserving all metadata.

4

Exhibit L App. 29

3. Throughout this request (including these definitions and instructions), the

term “communications” means any and all of the following: writings, oral

communications, electronic communications (including emails, text messages, and

instant messages), wire communications, conversations by telephone, meetings, and

any contact, oral or written, formal or informal, at any time or place, and under any

circumstance whatsoever, in which information of any nature was transmitted or

exchanged in any form or by any medium.

4. Throughout this request (including these definitions and instructions), the

phrases “relating to,” “relates to,” “related to,” "regarding," and “in relation to” mean

constituting or evidencing, and directly or indirectly mentioning, describing, referring

to, pertaining to, being connected with, reflecting upon, or concerning the stated subject

matter.

5. Throughout this request (including these definitions and instructions), the

words “any” and “all” shall be considered to include “each” and “each and every.”

6. Throughout this request (including these definitions and instructions), the

singular of any word shall include the plural, and the plural of any word shall include

the singular. The masculine form shall include the feminine and neutral forms. The

terms “and” and “or” shall mean “and/or” inclusively.

7. Throughout this request (including these definitions and instructions), the

terms “you” and “your” refer to the party responding to the request, as well as his, her,

or its present and former agents, employees, counselors, consultants, representatives,

attorneys, and any other person or entity acting or purporting to act on behalf of or

under the control of the responding party.

8. Throughout this request (including these definitions and instructions),

“Defendant” and “Frisco” mean 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian

Steakhouse, a named defendant in this matter. The term “Defendant” or “Frisco” also

includes Defendant’s present and former agents, employees, counselors, consultants,

representatives, attorneys, and any other person or entity acting or purporting to act on

its behalf or under its control.

9. Throughout this request (including these definitions and instructions), the

term “Plaintiff” or “Plaintiffs” means any named Plaintiff in this matter, including their

present and former agents, employees, counselors, consultants, representatives,

attorneys, and any other person or entity acting or purporting to act on its behalf or

under their or its control.

10. Throughout this request (including these definitions and instructions),

“Los Cucos” means Los Cucos Mexican Café VIII, Inc. and Los Cucos Mexican Café IV,

5

Exhibit L App. 30

Inc., named defendants in this matter and includes any present and former agents,

employees, counselors, consultants, affiliates, subsidiaries, representatives, attorneys,

and/or any other person or entity acting or purporting to act on the behalf or under the

control of Los Cucos.

11. If you contend that any document requested here need not be produced

under a privilege or other protection against disclosure, provide an itemized log of the

document(s) being withheld from production. In the log, specify the date of each such

document, its author(s), all recipient(s), and any person(s) copied on the document, the

paragraph of this request to which the document responds, and a brief description of

the document’s contents that supplies enough detail to assess the applicability of the

privilege or protection being claimed. In addition, please specify the privilege or

protection upon which you rely as their basis for withholding the document(s) from

production.

12. If you intend to produce any electronic document or information in

response to this request, please contact counsel for Los Cucos to discuss the form in

which such electronic document or information will be produced.

13. If you have any questions about this request, please contact counsel for

Los Cucos promptly for clarification.

14. Unless otherwise stated, the time period covered by this request is January

1, 2010 to the present.

15. You are reminded of your duty under Rule 193.5, Tex. R. Civ. P., to amend

or supplement any response that was incomplete or incorrect when made or that,

although correct and complete when made, is no longer complete and correct.

6

Exhibit L App. 31

REQUESTS FOR ADMISSIONS

Admit or deny the following:

Admission No. 1. 8650 Frisco, LLC received money from Los Cucos Mexican

Café VIII, LLC.

Admission No. 2. 8650 Frisco, LLC intended to treat the money it received from

Los Cucos Mexican Cafe VIII, LLC as a loan.

Admission No. 3. 8650 Frisco, LLC intended to treat the money it received from

Los Cucos Mexican Cafe VIII, LLC as an investment.

Admission No. 4. 8650 Frisco, LLC intended to repay the money it received

from Los Cucos Mexican Cafe VIII, LLC.

Admission No. 5. 8650 Frisco, LLC did not intend to repay the money it

received from Los Cucos Mexican Cafe VIII, LLC.

Admission No. 6. 8650 Frisco, LLC received money from Los Cucos Mexican

Cafe IV, LLC.

Admission No. 7. 8650 Frisco, LLC intended to treat the money it received from

Los Cucos Mexican Cafe IV, LLC as a loan.

Admission No. 8. 8650 Frisco, LLC intended to treat the money it received from

Los Cucos Mexican Cafe VI, LLC as an investment.

Admission No. 9. 8650 Frisco, LLC intended to repay the money it received

from Los Cucos Mexican Cafe IV, LLC.

Admission No. 10. 8650 Frisco, LLC did not intend to repay the money it

received from Los Cucos Mexican Cafe IV, LLC.

Admission No. 11. 8650 Frisco, LLC received money from Manuel Cabrera.

Admission No. 12. 8650 Frisco, LLC intended to treat the money it received

from Manuel Cabrera as a loan.

Admission No. 13. Admit that 8650 Frisco, LLC intended to treat the money it

received from Manuel Cabrera as an investment.

Admission No. 14. 8650 Frisco, LLC intended to repay the money it received

from Manuel Cabrera.

7

Exhibit L App. 32

Admission No. 15. 8650 Frisco, LLC did not intend to repay the money it

received from Manuel Cabrera.

Admission No. 16. 8650 Frisco, LLC received money from Sergio Cabrera.

Admission No. 17. 8650 Frisco, LLC intended to treat the money it received

from Sergio Cabrera as a loan.

Admission No. 18. 8650 Frisco, LLC intended to treat the money it received

from Sergio Cabrera as an investment.

Admission No. 19. 8650 Frisco, LLC intended to repay the money it received

from Sergio Cabrera.

Admission No. 20. 8650 Frisco, LLC did not intend to repay the money it

received from Sergio Cabrera.

Admission No. 21. 8650 Frisco, LLC received equipment from Los Cucos

Mexican Cafe IV, LLC.

Admission No. 22. 8650 Frisco, LLC received furniture from Los Cucos Mexican

Cafe IV, LLC.

Admission No. 23. 8650 Frisco, LLC is currently using equipment it received

from Los Cucos Mexican Cafe IV, LLC.

Admission No. 24. 8650 Frisco, LLC is currently using furniture it received from

Los Cucos Mexican Cafe IV, LLC.

Admission No. 25. 8650 Frisco, LLC is currently using equipment paid for by

from Los Cucos Mexican Cafe IV, LLC.

Admission No. 26. 8650 Frisco, LLC is currently using furniture paid for by Los

Cucos Mexican Cafe IV, LLC.

Admission No. 27. 8650 Frisco, LLC did not pay Los Cucos Mexican Cafe IV,

LLC for any equipment or furniture.

Admission No. 28. Los Cucos Mexican Cafe IV, LLC did not gift furniture to

8650 Frisco, LLC.

8

Exhibit L App. 33

Admission No. 29. Los Cucos Mexican Cafe VIII, LLC did not gift money to

8650 Frisco, LLC.

Admission No. 30. Admit that Manuel Cabrera did not gift money to 8650

Frisco, LLC.

Admission No. 31. Sergio Cabrera did not gift money to 8650 Frisco, LLC.

Admission No. 32. 8650 Frisco, LLC is currently operating at a net profit.

Admission No. 33. 8650 Frisco, LLC is currently operating at a new loss.

Admission No. 34. 8650 Frisco, LLC is currently using the name Estilo Goucho

Brazilian Steakhouse.

Admission No. 35. 8650 Frisco, LLC is has been using the name Estilo Goucho

Brazilian Steakhouse since February, 2013.

Admission No. 36. 8650 Frisco, LLC has assigned, in writing, its rights to the

mark Estilo Gaucho Bazilian Steakhouse to Bahtche, LLC.

Admission No. 37. 8650 Frisco, LLC has not assigned, in writing, its rights to the

mark Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.

Admission No. 38. 8650 Frisco, LLC has received compensation from Bahtche,

LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.

Admission No. 39. 8650 Frisco, LLC has not received compensation from

Bahtche, LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.

Admission No. 40. Estilo Gaucho Brazilian Steakhouse is a trade name of 8650

Frisco, LLC.

Admission No. 41. 8650 Frisco, LLC does business as Estilo Gaucho Brazilian

Steakhouse.

9

Exhibit L App. 34

Requests for Production

Request No. 1. Produce all documents and records provided to or received from

8650 Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA,

Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650

Frisco, LLC.

Request No. 2. Produce all documents and records in the possession of 8650

Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman

& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.

Request No. 3. Produce all financial records of 8650 Frisco, LLC.

Request No. 4. Produce all accounting records of 8650 Frisco, LLC.

Request No. 5. Produce all bank statements of 8650 Frisco, LLC.

Request No. 6. Produce all point of sale data and reports related to 8650 Frisco,

LLC.

Request No. 7. Produce all tax records (including all 1099 forms, W-2 forms, and

K-1 forms) related to 8650 Frisco, LLC.

Request No. 8. Produce all communications and correspondence with 8650

Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman

& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.

Request No. 9. Produce all payroll records for 8650 Frisco, LLC.

Request No. 10. Produce all records of money received from any Plaintiff in this

lawsuit.

Request No. 11. Produce all records of money paid or distributed to any Plaintiff

in this lawsuit.

Request No. 12. Produce all correspondence and communications with each

Plaintiff in this lawsuit.

Request No. 13. Produce all agreements, including all drafts of agreements,

between the Parties, which relate in any way to 8650 Frisco, LLC.

10

Exhibit L App. 35

Request No. 14. Produce all leases and related documents (e.g., guarantees),

which relate to the premises currently occupied by 8650 Frisco, LLC.

Request No. 15. Produce all records of financial transactions between 8650

Frisco, LLC and Claudio Nunes.

Request No. 16. Produce all records of financial transactions between 8650

Frisco, LLC and David Jeiel Rodrigues.

Request No. 17. Produce all corporate records of 8650 Frisco, LLC.

Request No. 18. Produce quarterly and annual profit and loss statements for

8650 Frisco, LLC from its creation through the present (update quarterly through trial).

Request No. 19. Produce quarterly and annual balance sheet statements for 8650

Frisco, LLC from its creation through the present (update quarterly through trial).

Request No. 20. Produce all communications and correspondence related to any

of the Plaintiffs in this lawsuit.

Request No. 21. Produce all records of cash receipts and cash deposits for 8650

Frisco, LLC.

Request No. 22. Produce all records, including invoices, for all equipment and

furniture purchased for use by 8650 Frisco, LLC.

Request No. 23. Produce all documents which reflect or relate to the application

to the United States Patent and Trademark office for the mark Estilo GAucho Brazilian

Steakhouse.

Request No. 24. Produce the assignment of ownership rights for the mark Estilo

Gaucho Brazilian Steakhouse to Bahtche, LLC.

Request No. 25. Produce documents reflecting the exchange of compensation by

and between 8650 Frisco, LLC and Bahtche, LLC, related to the mark Estilo Gaucho

Brazilian Steakhouse.

11

Exhibit L App. 36

FIRST SET OF INTERROGATORIES

Interrogatory No. 1. Identify and explain in detail the terms upon which Los

Cucos Mexican Cafe VIII, LLC provided money to 8650 Frisco, LLC.

Interrogatory No. 2. If you contend that the money provided to 8650 Frisco, LLC

by Los Cucos Mexican Cafe VIII, LLC was a loan, describe in detail the basis of that

contention and terms of the loan.

Interrogatory No. 3. If you contend that they money provided to 8650 Frisco,

LLC by Los Cucos Mexican Cafe VIII, LLC was an investment, describe in detail the

basis of that contention and terms of the investment.

Interrogatory No. 4. Identify and describe in detail the equipment and

furnishings provided to 8650 Frisco, LLC by Los Cucos Mexican Cafe, IV.

Interrogatory No. 5. If you contend that the parties had an agreement as to 8650

Frisco, LLC’s use of the equipment and furniture provided to 8650 Frisco, LLC by Los

Cucos Mexican Cafe, IV, identify and describe in detail the basis of that contention and

terms of the agreement.

Interrogatory No. 6. Identify and describe in detail the source, date of purchase,

and cost of all equipment and furnishings used at 8650 Frisco, LLC.

Interrogatory No. 7. Detail the circumstances and terms under which the mark

Estilo Gaucho Brazilian Steakhouse was transferred to Bahtche, LLC.

12

Exhibit L App. 37

4/14/2014 9:29:21 AM

Chris Daniel - District Clerk Harris County

Envelope No. 980547

By: EVELYN PALMER

CAUSE NO. 2014-10896

LOS CUCOS MEXICAN CAFÉ § IN THE DISTRICT COURT OF

VIII, INC., LOS CUCOS MEXICAN §

CAFÉ IV, INC., MANUEL §

CABRERA, and SERGIO §

CABRERA §

PLAINTIFFS, §

§

V. § HARRIS COUNTY, TEXAS

§

8650 FRISCO, LLC d/b/a ESTILO §

GAUCHO BRAZILIAN §

STEAKHOUSE, MANDONA, §

LLC, GALOVELHO, LLC, §

BAHTCHE, LLC, CLAUDIO §

NUNES and DAVID JEIEL §

RODRIGUES §

DEFENDANTS. § 133rd JUDICIAL DISTRICT

DEFENDANTS’ ORIGINAL ANSWER

Subject to Defendants’ Motion to transfer Venue and without waiving

same, Pursuant to Rules 84 and 86:

NOW COMES 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse,

Mandona, LLC, Galovelho, LLC, Bahtche, LLC, Claudio Nunes and David

Jeiel Rodrigues (“Defendants”) and file this original answer to the original

petition filed by Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café

IV, Inc., Manuel Cabrera, and Sergio Cabrera (“Plaintiffs”) and shows the

Court:

GENERAL DENIAL

Defendants Original Answer Subject to

Motion to Transfer Venue 1 of 4

Exhibit M App. 38

In accordance with Rule 92 of the Texas Rules of Civil Procedure, Defendants

exercise their legal right to require Plaintiffs to prove their allegations

contained in their pleadings. Accordingly, Defendants generally deny the

allegations of Plaintiffs’ pleading and demand strict proof of the allegations by

a preponderance of evidence.

AFFIRMATIVE DEFENSES

1. Defendants are not liable to Plaintiffs because of Plaintiffs Fraud.

2. Defendants are not liable to Plaintiffs because of the Statute of Frauds.

3. Defendants are not liable to Plaintiffs because there is no written

agreement as recited by Plaintiffs.

4. Defendants are not liable to Plaintiffs because there is no oral

agreements as recited by Plaintiffs.

VERIFIED PLEAS

5. Defendants deny that there is any partnership as pleaded by Plaintiffs.

COUNTER CLAIM: DECLARATORY JUDGMENT

6. Defendants request a declaratory judgment that there was never an

agreement between any of the Defendants and any of the Plaintiffs as

alleged by Plaintiffs. Defendants request the court to determine the

rights of Defendants in relation to the Plaintiffs.

Defendants Original Answer Subject to

Motion to Transfer Venue 2 of 4

Exhibit M App. 39

7. Defendants request the court to award attorney’s fees pursuant to Tex.

Civ. Prac. & Rem. Code §37.009.

DISCLOSURES

Defendants request that Plaintiffs make disclosure as required under Texas

Rules of Civil Procedure 194.

PRAYER

Defendants request that all relief sought by Plaintiffs be denied, that Plaintiffs

take nothing by this suit, and that Defendants recover all costs and attorney’s

fees, together with such other and further relief to which it may be justly

entitled.

Respectfully submitted, MOSSER LAW PLLC,

/s/ James. C. Mosser

James C. Mosser

Texas Bar No. 00789784

Nicholas D. Mosser

Texas Bar No. 24075405

Benjamin Casey

Texas Bar No. 24087267

17110 Dallas Parkway Suite 290

Dallas, TX 75248

Tel. (972) 733-3223

Fax. (972) 267-5072

courtdocuments@mosserlaw.com

Lawyers for Defendants.

Defendants Original Answer Subject to

Motion to Transfer Venue 3 of 4

Exhibit M App. 40

CERTIFICATE OF SERVICE

I certify that on April 14, 2014, a true and correct copy of this document was

served to the following pursuant to Texas Rules of Civil Procedure 21 & 21(a)

on the following:

Kelly Stephens

P.O. Box 79734

Houston, Texas 77279-9734

832-476-5460 (Facsimile)

/s/ Nicholas D. Mosser

Nicholas D. Mosser

Defendants Original Answer Subject to

Motion to Transfer Venue 4 of 4

Exhibit M App. 41

1

1 REPORTER'S RECORD

2 VOLUME 1 OF 1 VOLUME

3 CAUSE NO. 2014-10896

4

LOS CUCOS MEXICAN CAFE VIII § IN THE DISTRICT COURT OF

5 §

VS. § HARRIS COUNTY, T E X A S

6 §

8650 FRISCO, LLC § 133RD JUDICIAL DISTRICT

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8

9 ******************************************************

10 MOTIONS

11 ******************************************************

12

13 On the 28th day of July, 2014, the

14 following proceedings came on to be heard in the

15 above- entitled and numbered cause before the

16 HONORABLE JACLANEL McFARLAND, Judge Presiding of the

17 133rd District Court of Houston, Harris County, Texas.

18 Proceedings reported by stenographic

19 method.

20

21

22 LaVEARN IVEY

23 DEPUTY COURT REPORTER

24 133rd DISTRICT COURT

25 HARRIS COUNTY, TEXAS

Exhibit N App. 42

2

1 A P P E A R A N C E S:

2

FOR THE PLAINTIFFS:

3 MR. KELLY D. STEPHENS

State Bar No. 19158300

4 Stephens & Dominitz PLCC

P. O. Box 79734

5 Houston, Texas 77297-9734

281.394.3287

6

MR. ANDREW K. MEADE

7 State Bar No. 24032854

MR. SAMUEL D. HAREN

8 State Bar No. 24059899

Hawash Meade Gaston Neese & Cicack LLP

9 2118 Smith Street

Houston, Texas 77002

10 713.658.9006

11

12

13 FOR THE DEFENDANTS:

MR. NICHOLAS D. MOSSER

14 State Bar No. 24075405

Mosser Law PLLC

15 17110 Dallas Parkway

Suite 290

16 Dallas, Texas 75248

972.733.3223

17

18

19

20

21

22

23

24

25

Exhibit N App. 43

3

1 July 28, 2014

2

3 THE COURT: If all the attorneys would

4 announce themselves and who they represent.

5 MR. MEADE: For the plaintiffs, Andrew

6 Meade, Sam Haren and Kelly Stephens.

7 MR. MOSSER: Nicholas Mosser for 8650 and

8 the remainder of the defendants.

9 THE COURT: Very well. Now I don't know

10 what order you want to take them in. The first one I

11 happen to have on the docket is the motion to transfer.

12 Want to do that one first, want to do another one first,

13 do you --

14 MR. MOSSER: Sorry to interrupt, Your

15 Honor. I prefer to do that one first because I believe

16 the remainder will become moot after that point.

17 THE COURT: Okay. Go ahead.

18 MR. MEADE: On the motion to transfer,

19 Your Honor, you had mentioned that you were pushing that

20 off until after we got our depositions.

21 THE COURT: That's right because there

22 were all those motions to quash.

23 MR. MEADE: They are next week. The

24 depositions are scheduled for next week.

25 THE COURT: That's right. I did say that.

Exhibit N App. 44

4

1 Were these not the ones that there was motions to quash?

2 Have y'all worked some of those out?

3 MR. MEADE: We have depositions set for

4 Monday and Tuesday of next week, Your Honor.

5 THE COURT: Well, let's --

6 MR. MEADE: On the motion to quash.

7 THE COURT: I just assumed you had some.

8 MR. MOSSER: Your Honor, I called and

9 confirmed that this hearing on motion to transfer venue

10 was scheduled for today.

11 THE COURT: Okay, that's fine.

12 MR. MOSSER: Your Honor, we specifically

13 deny the venue facts pleaded by plaintiffs. They have

14 filed no response to any of our specific denials. They

15 have produced no prima facie evidence of any of their

16 venue facts. We allege that venue is mandatory and

17 permissive in Collin County and we have not had any

18 response to our supplemental motion. Their timeframe to

19 respond or amend the pleading is over. And the facts are

20 properly pleaded and alleged. Any facts that are not

21 controverted by opposing counsel are deemed accepted as

22 true. And I believe this court has no other choice but to

23 transfer this case into Collin County.

24 THE COURT: Counsel.

25 MR. MEADE: Your Honor, I actually -- I

Exhibit N App. 45

5

1 don't have a copy of the motion. I didn't know that it

2 was set for today because my understanding from our last

3 hearing was that it was going to be continued and put off

4 until after we were able to get the depositions so as not

5 to allow counsel to basically -- trying to figure out the

6 right way to put it nicely. To play discovery games and

7 continually push off the depositions until after they can

8 get their motion to transfer venue set.

9 I think we have pled sufficient venue facts.

10 I looked at this issue last -- a month and a half ago so I

11 don't remember what the exact facts are but they included,

12 for example, that my clients were contacted by the

13 defendants regarding this investment by the defendants

14 reaching out to the clients in Harris County. And that my

15 clients paid from Harris County $948 thousand and change

16 and that the place for repayment was Harris County. That

17 the reaching out to induce the investment and the location

18 for place of payment alone are sufficient to establish

19 venue here and are dispositive of the issue.

20 If Your Honor is inclined to need more venue

21 facts or more briefing on that issue I would be happy to

22 give it to you. But I think those facts that we have

23 already pled and established are sufficient in and of

24 itself.

25 THE COURT: Counsel, when you got your

Exhibit N App. 46

6

1 notice to him --

2 MR. MOSSER: It's been e-filed, Your

3 Honor.

4 THE COURT: Well, have you got it?

5 MR. MOSSER: Yes, Your Honor.

6 THE COURT: Did you conference with him

7 before you reset it and gave him notice that it was set?

8 MR. MOSSER: We only reset it based on the

9 court's request, we reset it from August 4th to July 28th.

10 THE COURT: That's because y'all were

11 supposed to have already done depositions, right?

12 MR. MEADE: Your Honor, this setting of

13 July 28th was set prior to the last hearing that we had

14 and, Your Honor, at that last hearing because we couldn't

15 -- I was going to take a vacation -- our last hearing I

16 think was June 23rd. I was going to be on vacation and we

17 couldn't get deposition dates set to occur due to Mr.

18 Mosser's father not being able to come to Houston for the

19 depositions until after the date that they had set for

20 their motion to transfer venue. I said -- I requested

21 from the court that we put off the hearing on their motion

22 to transfer venue until after I was able to get the

23 depositions and Your Honor indicated that you would. They

24 never reset their motion but Your Honor passed the hearing

25 orally.

Exhibit N App. 47

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1 THE COURT: I remember.

2 MR. MOSSER: Your Honor, there was no

3 notice of any of that other than the hearing. If that

4 actually took place in the hearing then I believe that

5 should have been on the docket and addressed on the docket

6 and it should have been reset there. We have no order on

7 any of this, I have no transcript on any of this --

8 THE COURT: I think your dad was on the

9 phone.

10 MR. MOSSER: I believe he was. But I

11 believe this is still properly set. There is no verified

12 motion for continuance.

13 THE COURT: Have you got a certificate of

14 conference where you conferenced with him about this

15 motion?

16 MR. MOSSER: We attempted numerous times

17 to illustrate to each one of these issues.

18 THE COURT: Counsel, I asked you a

19 specific question. You got a certificate of conference on

20 this motion?

21 MR. MOSSER: Yes, Your Honor, I do. As of

22 March 14th we have been trying to transfer this.

23 THE COURT: No, on this one that was set

24 for today.

25 MR. MOSSER: On this one that's set for

Exhibit N App. 48

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1 today.

2 THE COURT: And you conferenced about it

3 being set for today? Because isn't this -- is this the

4 original one?

5 MR. MOSSER: Yes, Your Honor.

6 THE COURT: Well, but we have had a lot of

7 stuff since then.

8 MR. MOSSER: I supplemented it based on

9 the second amended petition and that's the venue facts we

10 specifically deny. And there has been no response on it.

11 THE COURT: Okay. Well, I am going to

12 continue it until after the depositions just like I told

13 your dad. So let's move to the next one.

14 Okay. To be continued on the court's own

15 motion.

16 MR. MOSSER: Your Honor, we request that

17 the remainder of these motions also be continued until

18 after the motion to transfer venue.

19 THE COURT: Denied.

20 Okay. The next thing I have got is -- because

21 you filed something on July first on your motion to

22 transfer. Did you send that to him?

23 MR. MOSSER: Yes, Your Honor.

24 THE COURT: And you said it was set for

25 hearing today?

Exhibit N App. 49

9

1 MR. MOSSER: I filed all the notices of

2 hearing and I filed supplements.

3 THE COURT: And you conferenced with him

4 that it was set for today?

5 MR. MOSSER: I filed the notice of

6 hearing, Your Honor.

7 THE COURT: Yeah. I see a notice of

8 conference on here.

9 Okay. So going to the next motion that's set,

10 I think was on the subpoena issue, right?

11 MR. MEADE: The Mike Verucchi subpoena

12 issue.

13 THE COURT: Right.

14 MR. MEADE: And Your Honor, we have as you

15 know, we have been attempting to perform written and oral

16 discovery in this case for five months now. And one of

17 the issues was subpoenaing the initial accountant which

18 was Hal Holtman. The defendants sent a letter to Hal

19 Holtman instructing him not to comply with that subpoena.

20 THE COURT: Oh, I remember.

21 MR. MEADE: And telling him to destroy the

22 documents and we had moved to compel and protection on

23 that. And we got those documents compelled. And the

24 defendants have identified in response to request for

25 disclosure their new accountant as Mr. Verucchi. We have

Exhibit N App. 50

10

1 sent a subpoena to Mr. Verucchi and the defendants filed a

2 motion to quash. The exclusive basis of the motion to

3 quash is that it calls for production, our subpoena calls

4 for production outside of 150 miles and thus is outside

5 the subpoena range. The location for production pursuant

6 to subpoena is Mr. Verucchi's offices, not Harris County.

7 And therefore it doesn't violate the 150 mile limitation.

8 The defendants have also represented in a

9 letter that they have provided us with all of Mr.

10 Verucchi's documents. But the only documents that we have

11 been provided with in response to discovery, and this goes

12 to the next motion, too, but I am going to hold off on

13 that for a minute. But it's an important note to

14 remember.

15 The only documents they have provided us in

16 June in response to the court's order on our motion to

17 compel in the Verucchi subpoena is to produce to us -- at

18 the last hearing the court, Mr. Mosser asked that we give

19 the Holtman documents, we had received them, give him a

20 copy and we produced them, we Bates labeled and produced

21 them to him -- we didn't Holtman Bates labeled?

22 MR. HAREN: No --

23 MR. MEADE: So we produced the Holtman

24 documents to Mr. Mosser's firm. Mr. Mosser produced the

25 Holtman backed -- documents back to us with only one page

Exhibit N App. 51

11

1 addition and that was the cover letter. And that's the

2 only thing we have been given. He says I have given you

3 all -- now given you all of Mr. Verucchi's documents and

4 all the financial documents we have in our possession.

5 With all due respect, even if I believe that

6 to be true I'm entitled to production from Mr. Verucchi,

7 and the exclusive basis for the motion to quash being 150

8 mile limitation, it's not valid. Like I said we called

9 for production at Mr. Verucchi's office.

10 MR. MOSSER: Your Honor, I have attempted

11 to resolve this without having a motion to compel. I

12 didn't think it was necessary. I didn't think once we

13 produced the documents and they are basically the same

14 documents. I mean the transfer of accountants in this case

15 was Mr. Holtman was the accountant for 8650. He produced

16 all these documents. After we received them. Those are

17 all the documents that we had in our possession that were

18 responsive to Verucchi's subpoena. Verucchi does not

19 believe -- I have talked to him, he does not have any more

20 documents other than those documents he received directly

21 from Mr. Holtman. Those are the financial records that he

22 has in his possession.

23 THE COURT: But he needs to say it under

24 oath.

25 MR. MOSSER: I believe that without the

Exhibit N App. 52

12

1 need of doing the motion to compel, without the need of a

2 subpoena our production of those same documents are

3 sufficient. Otherwise motion to compel, it's just not

4 necessary based on the fact we have produced all

5 responsive documents. I don't think he needs to say it

6 under oath. We produced them and represent that those are

7 the documents that we have, and of course we are under the

8 obligation to supplement, but those are the documents he

9 received from Mr. Holtman and that's all he's got.

10 THE COURT: So why don't you want him to

11 say that and swear to it?

12 MR. MOSSER: Because I believe that they

13 are required to go through us on proper discovery and not

14 go through and try to circumvent the discovery process by

15 using a subpoena.

16 THE COURT: Well, they are asking a third

17 party, they subpoenaed a third party on a deposition on

18 written questions.

19 MR. MOSSER: In specific attempt to

20 circumvent requesting the documents from us and allowing

21 us to control the process and the information released. I

22 believe it's our right to object and make the call for

23 privileges and specifically they are asking for every

24 social security number of every employee of 8650 and every

25 other entity involved in this. We have made that

Exhibit N App. 53

13

1 objection and the objection has not been put before this

2 court and I do not believe it's proper to produce that

3 volume of personal information without redacting it. And

4 that's what we did when we took that information, we

5 redacted that information and produced it back.

6 THE COURT: Well, it looks like to me they

7 would prove these up under business records with this

8 subpoena.

9 MR. MEADE: One of the issues that we are

10 trying to do, Your Honor, is to prove up the business

11 records through the subpoena, of course. But No. 2, what

12 I just heard again blows my mind and that is that counsel

13 says no, you can't go request documents directly from a

14 third party. We get to control the information that you

15 are allowed to get. And we are going to take the

16 documents from a third party. And the only objection they

17 raised in response to Mr. Verucchi, again the subpoena,

18 was 150 mile range. No privilege issue on this one like

19 Holtman, anything like that. And now what they are saying

20 is we are going to take the documents from him. We are

21 going to just represent to you in a letter that this is

22 all he has, trust us on it, and we are going to go through

23 and redact some information and control the flow of the

24 information back to you.

25 They haven't disclosed anybody else who is an

Exhibit N App. 54

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1 accountant for the enterprise. They have not, and I find

2 this very interesting, supplemented their discovery

3 because we are going to get to that next as they can

4 concede they have the obligation to do.

5 No, they don't get -- one of the reasons you

6 go to third parties to get things is so that the other

7 side doesn't -- if for example you don't 100 percent trust

8 them to disclose documents, and I don't, you don't have to

9 go directly to that party. You can go to third parties in

10 possession of the documents.

11 And with Mr. Verucchi in particular, at the

12 last hearing the reason they were saying they didn't have

13 to produce these records was Mr. Verucchi had them and he

14 was not within their possession -- it was not in his

15 possession, custody and control. That's the only

16 objection. Our own accountant.

17 Now they are saying, no, we get to go to that

18 accountant, get the documents, redact them, choose which

19 documents to give you.

20 I mean, we're entitled to go to the third

21 party. They raise one objection, it's invalid, and so the

22 motion to quash should just be overruled.

23 THE COURT: Do you want to say anything

24 else, counsel?

25 MR. MOSSER: Your Honor, I don't believe

Exhibit N App. 55

15

1 the motion to quash was invalid, however I withdrew it on

2 the representation that I produced those documents that

3 are responsive to his subpoena request. I don't believe

4 just like I can't --

5 THE COURT: So did you set up another date

6 where they could go do it?

7 MR. MOSSER: No, Your Honor, I don't

8 believe it was necessary. I believe that the only thing

9 that they wanted out of this was documents, documents that

10 Mr. Holtman came and produced to them months before we

11 ever got copies of those documents and those documents are

12 all they seem to care about.

13 The only other thing, the only other reason

14 that Mr. Verucchi has complained about is the volume of

15 papers that opposing counsel is delivering on him and

16 interfering with the operation of his business. And this

17 is the reason we believe they are subpoenaing Mr.

18 Verucchi.

19 If they really truly wanted these documents

20 from us then they would have made the request, they would

21 have objected to or they would have put a motion to compel

22 on the remainder of our obje

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