# in Re 8650 Frisco, LLC D/B/A Estilo Gaucho Brazilian Steakhouse, Mandona, LLC, Galovelho, LLC, Bahtche, LLC, Claudio Nunes and David Jeiel Rodrigues > Texas Court of Appeals, 1st District (Houston) · May 6, 2015 URL: https://www.frixlaw.com/law-library/cases/4054887 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** May 6, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4054887 ## How later opinions describe it (automated extraction) - Holding Texas Courts are not bound by opinions from Federal District Courts or Appeals Courts on state law issues - Holding an act declared to be void, is void from the beginning and was never valid nor enforceable at any time. - Holding an act declared to be void, is void from the beginning and was never valid nor enforceable at any time. ## Opinion text 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 Un of fic ial C op yO ffic e of C hr is Da nie lD ist rict C ler k App. 1 Exhibit B Un of fic ial C op yO ffic e of C hr is Da nie lD ist rict C ler k App. 2 Exhibit B Un of fic ial C op yO ffic e of C hr is Da nie lD ist rict C ler k App. 3 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. Exhibit ©E2015 Thomson Reuters. No claim to original U.S. Government Works. App. 7 1 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. Exhibit ©F2015 Thomson Reuters. No claim to original U.S. Government Works. App. 8 1 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. Exhibit ©I 2015 Thomson Reuters. No claim to original U.S. Government Works. App. 12 1 215.1. 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 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. Exhibit ©J 2015 Thomson Reuters. No claim to original U.S. Government Works. App. 14 2 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}k·ED. Specifically: n~ The Court DE~YDef'endants' requesl to stay all matters. The Co~~"1y OVERRULES Defendants' objections 10 Plainliffs' Requests for Production No~ 2, 3, 4, 5, 7, and 8. IT IS ORDERED that Defcndunls shall produce all ~ document~onsive to Requests for Production Nos. l, 2, 3, 4, 5, 7, and 8 within 24 hours of the enlry of this order. ,,·erycmtf:lfas-detenmned tftat Lhe folluwiHg sa1@i_Q!JS are apprapnatc·, SatiSfY rhe legitilllatc Exhibit O App. 93 From: Nancy Jacobs Fax: (713) 658-9002 To: 19722675072@rcfax.cc Fax: +19722675072 Page 5 of 8 07/29/2014 3:27 ~I 1A purposes of d:scovmy sancnons, and are neuher lllore 1101 less striRgtmt thaH n~~ l 'V1L acee~ltjbTise P 'fPGS&." 1 liHGHlying-metiOtrllllOlhe deposition of each of the Defendarlts in assGI'flauce witA ttl is el'!!sr an: "-~'= ..cilaFgea to tile MOSSER bAW }'!llll+.-'l'fle-MO&Siiil I AW Fm'4 •h·•ll pn~~ ' · lrtir10 days of the signing efthjs order. _ (Y.» ·l'f' IS FURTHER ORDERED that tl'le i"oilo"ing facts m~~AI'lL!Stt~ 'jmrpuses-irr1l1ts hngatron: that Detendauts htws-m~sented to yenu~arris Count~ IT IS FURTHER ORDERED that failure to comply,,~~ this Order may result in the .&& fhrther imposition of sanctions or a holding of contempt, ~~habie by fin~ or imprisonment or .0 ~q ,-';0~ (J},~~~~O)~ both. ~....Jv....Q 01~ ~- & fij~ 1 (f-..'-'-(; / d-ol tf o* b· Cb }L{ . rn ci;q) •.~·-c '~~ DATED:1~J-C?-c:Jo!L/ «:_Y .~- Q; ij)o ~'l.y ,~ ©5 Th~dian of records ofHoltman & Company, LLC is hereby ORDERED to preserve all documents and communications related to 8650 Frisco, LLC, including but not limited to those records requested by Plaintiffs, in its possession, custody, or control, during the pendency of this litigation. Exhibit R Exhibit 6 App. 159 The Court FINDS that Defendants' counsel has abused the discovery process in resisting discovery and has determined that the following sanctions are appropriate, that the following sanctions satisfy the legitimate purposes of discovery sanctions, and that the following sanctions are neither more nor less stringent than necessary to accomplish those purposes. that all expenses of discovery a~ated ~([!jj; underlying motio and the production o cuments by and from Holt~ & Comp includin fees, and the b~re char ~nselr------- osser, individually. Nicholas D. Mosser shall pay to Plain · within 10 days ofthe signing ofthis order. ~Q~ ~ "~ IS FURTHER ORDERED that the follow~~acts ~«?Qf That 8650 Frisco, LLC ~ genera existence. ~ 2. That Plaintiffs are e~Q ©) to one- 3. T t Plaintiffs a~entitled to full repayment of the startup funds t y prov ed (in"rting a y "W "~ncludi Exhibit R App. 160 furth imposition of sanctions r a holding of conte oth. DATED:~~ l1 ~!lf r ( Exhibit R App. 161 6/11/2014 2:07:32 PM Chris Daniel - District Clerk Harris County Envelope No. 1510270 By: AMANDA ARRIAGA Cause No. 2014-10896 LOS CUCOS MEXICAN CAFE VIII, § IN THE DISTRICT COURT OF 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’ RESPONSE TO DEFENDANTS’ MOTION TO STAY ALL MATTERS AND PLAINTIFFS’ THIRD MOTION TO COMPEL Plaintiffs file this response to Defendants’ Motion to Stay All Matters concurrently with their Third Motion to Compel, asking the Court to deny Defendants’ motion to stay, to compel Defendants to produce requested documents, and to compel Defendants (again) to appear for deposition. Plaintiffs also ask the Court to award them the costs incurred in responding to Defendants’ groundless, bad faith, and harassing motion, as well as Plaintiffs’ reasonable expenses caused by Defendants’ failure to obey the Court’s original order compelling them to appear for deposition. In support thereof, Plaintiffs respectfully show the Court the following: HOW WE GOT HERE 1. Plaintiffs filed this lawsuit on March 3, 2014. Each of the defendants was served by March 24, 2014. Two days later, March 26, 2014, Defendants jointly filed their Emergency Exhibit R Exhibit 7 App. 162 Motion to Transfer Venue. At that time, under Rule 87(1), TEX. R. CIV. P., Defendants could have set a hearing on their motion to transfer as early as May 10, 2014. They did not. 2. On April 7, 2014, the Court held a hearing on Plaintiffs’ request for a temporary injunction. At the end of the hearing, Defendants’ counsel verbally requested an expedited hearing on their motion to transfer. The Court directed counsel to contact the clerk to schedule a hearing. At that time, Defendants could have set their hearing as early as May 22, 2014. They did not. 3. On May 12, 2014, the Court held a hearing on Plaintiffs’ motion to compel the production of documents by an accountant formerly employed by both parties. Defendants again noted their desire to transfer this lawsuit to Collin County. At that time, Defendants could have set their hearing as early as June 26, 2014. They did not. 4. Instead, on June 3, 2014, Defendants filed a motion to stay all proceedings and set the hearing on that motion for June 16, 2014. At the time Defendants obtained the hearing on the motion to stay, Defendants could have set the hearing on the motion to transfer as early as July 18, 2014. They did not. 5. Meanwhile, on April 14, 2014, Plaintiffs served discovery requests on Defendants. See Plaintiffs’ Exhibit 1, Plaintiffs’ Discovery Requests. On May 14, 2014, Defendants served responses and numerous objections to Plaintiffs’ discovery requests, specifically Plaintiffs’ requests for production. See Plaintiffs’ Exhibit 2, Defendants’ Discovery Responses. Defendants produced 184 pages of documents, but withheld hundreds of pages more that are responsive and discoverable. 6. Finally, Plaintiffs have been attempting to take the Defendants’ depositions for over two months. At the hearing on May 12, the Court asked Defendants’ counsel to provide dates on which he would be willing to produce his clients for deposition in Houston. Defendants’ counsel offered June 9 and 10, 2014. Plaintiffs accordingly served notices of deposition on 2 Exhibit R App. 163 Defendants for those dates. See Plaintiffs’ Exhibit 3, Deposition Notices.1 On June 8, 2014—the day before the depositions were to be taken and after Plaintiffs’ counsel devoted substantial time to preparing for the depositions—Defendants’ counsel informed Plaintiffs that Defendants would not appear for deposition on the dates they had offered and filed a motion with the Court. 7. The story that has developed in this litigation is one of Plaintiffs attempting to move forward and Defendants resisting the expeditious adjudication of the parties’ rights. The blame for any delay in the prosecution of this lawsuit falls squarely at the feet of Defendants and their counsel. In the interest of obtaining a fair, equitable, and impartial adjudication of the parties’ rights with as great expedition and the least expense, see TEX. R. CIV. P. 1, the Court should deny Defendants’ Motion to Stay, order Defendants to produce the documents they have withheld, and order Defendants to appear for deposition in Houston, Texas. ARGUMENTS & AUTHORITIES 8. The Court should deny Defendants’ motion to stay because it has no basis in law or in fact. That is, it is expressly prohibited by Rule 88, TEX. R. CIV. P., and, even if it were not, Defendants would not be entitled to stay these proceedings because they have intentionally thwarted the expeditious adjudication of this matter. I. Defendants’ motion to stay should be denied because it has no basis in law or fact. A. Rule 88 prohibits the abatement of discovery during the pendency of a motion to transfer venue. 9. Defendants have asked the Court to abate all discovery and all other activity in this case while Defendants await the transcript of the temporary injunction hearing that occurred over two months ago. Defendants ask the Court to exercise its discretion to protect them from Plaintiffs’ prosecution of this lawsuit. Generally speaking, the Court has “inherent power to 1 Out of consideration for Defendants’ schedules, Plaintiffs’ counsel asked Defendants’ counsel to identify the corporate representatives of each of the company defendants and offered to schedule the corporate depositions accordingly. See Plaintiffs’ Exhibit 4, Meade Letter of May 12, 2014. Defendants did not respond. 3 Exhibit R App. 164 control the disposition of the cases on its docket with economy of time and effort for itself, for counsel, and for litigants.” In re A.E.A., 406 S.W.3d 404, 419–20 (Tex. App.—Fort Worth 2013, no pet.) (internal quotations omitted) (citing Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.— Houston [1st Dist.] 1994, writ denied)); Landis v. North American Co., 299 U.S. 248 (1936). Defendants suggest that there is “no guiding light” for the Court’s exercise of its discretion. 10. Defendants apparently ignored Rule 88, which expressly provides that “Discovery shall not be abated or otherwise affected by pendency of a motion to transfer venue.” TEX. R. CIV. P. 88 (emphasis added). As the Dallas Court of Appeals explained: “The purpose of Rule 88 is to enable the parties to proceed with preparation for trial on the merits, promptly and unhampered, so that the [motion to transfer venue] will not delay final disposition of the suit.” Newman Oil Co. v. Alkek, 585 S.W.2d 340, 341 (Tex. Civ. App.—Dallas 1979, no writ), citing Texas Land & Development Co. v. Myers, 239 S.W. 303, 304 (Tex. Civ. App.—San Antonio 1922, writ dism’d). 11. Furthermore, “depositions before disposition of the [motion to transfer venue] need not be limited to venue issues.” Newman Oil Co., 585 S.W.2d at 341. The rule in Texas is that, Once there has been a timely motion to transfer venue, a defendant has no choice but to continue on in the venue in which he finds himself, correct or not. See TEX. R. CIV. P. 88. To rule otherwise would have the effect of tying the defendant’s hands and force a Hobson’s choice. Nor do we think the defendant has to engage in the meaningless ritual of adding the words “subject to our motion for a change of venue” every time a motion is made. See TEX. R. CIV. P. 88. Nabors Loffland Drilling Co. v. Martinez, 894 S.W.2d 70, 72 (Tex. App.—San Antonio 1995, writ denied) (emphasis added). In other words, “the only identified possible bar,” see Defendants’ Motion to Stay at 8, is the only bar necessary to defeat Defendants’ motion. 4 Exhibit R App. 165 12. Accordingly, Defendants’ motion should be denied, and Plaintiffs should be awarded their costs incurred in opposing the motion because Defendants’ motion has no basis in law. B. There is no reason why Defendants cannot set a hearing on their motion to transfer. 13. When the hearing is held on Defendants’ motion to stay, this lawsuit will have been pending in this Court for 105 days. During that time period, Plaintiffs requested a temporary restraining order and a temporary injunction, requested documents from the former and current accountants of the business in question, propounded written discovery to Defendants, and have twice attempted to take the Defendants’ depositions. When Defendants instructed their former accountant to withhold and destroy evidence, Plaintiffs promptly filed a motion and set a hearing. When Defendants refused to appear for their properly noticed depositions the first time, Plaintiffs promptly filed a motion and set a hearing. Plaintiffs will shortly file a second motion to compel Defendants’ depositions because they refused to appear on the dates they provided, in direct contravention of the Court’s order. 14. Defendants, on the other hand, have filed two dilatory motions and generally sought to obstruct the expeditious adjudication of this matter. Defendants’ motion to stay is merely the latest effort by Defendants to add expense and delay to this lawsuit. 15. Defendants have repeatedly claimed that they will set their motion to transfer for hearing just as soon as they receive the transcript of the hearing held on April 7, 2014. See, e.g., Defendants’ Motion to Stay at 5 (claiming that “because of Defendants[’] inability to set the motion to transfer venue for hearing, hoping to secure the transcript from the court reporter”). Defendants suggest that they need the transcript so that “the testimony of Plaintiffs perjuring themselves could be put into the record appropriately.” See Defendants’ Motion to Stay at 5. 16. First, as a procedural matter, Plaintiffs’ testimony at the April 7 hearing is not admissible on the issue of venue. Rule 87 provides that the Court “shall determine the motion to 5 Exhibit R App. 166 transfer on the basis of [1] the pleadings, [2] any stipulations made by and between the parties and [3] such affidavits and attachments as may be filed by the parties in accordance with [Rule 87(3)(a), regarding affidavits] or of Rule 88 [regarding evidence permissibly attached to affidavits].” TEX. R. CIV. P. 87(3)(b). Rule 88 allows the consideration of “Deposition transcripts, responses to requests for admission, answers to interrogatories and other discovery products containing information relevant to a determination of proper venue . . . when they are attached to . . . an affidavit of a party, witness or an attorney who has knowledge of such discovery.” TEX. R. CIV. P. 88. In other words, the venue question is determined by the pleadings, not by live testimony. Any testimony given in a hearing on a separate matter is not admissible for purposes of venue. 17. Furthermore, Defendants could have taken Plaintiffs’ depositions and developed the same facts in an admissible format. They did not. 18. Second, as a substantive matter, even if Plaintiffs committed or suborned perjury—an allegation Plaintiffs vehemently deny—that by itself would not be sufficient grounds to transfer venue. The determination of venue is not punitive; it is focused entirely on whether the properly pled and proved facts support venue in the county of suit. 19. Accordingly, Defendants’ motion should be denied, and Plaintiffs should be awarded their costs incurred in opposing the motion because Defendants’ motion has no basis in fact. II. The Court should overrule Defendants’ objections and order the production of responsive and discoverable materials. 20. On April 14, 2014, Plaintiffs served discovery requests on Defendants. See Plaintiffs’ Exhibit 1, Plaintiffs’ Discovery Requests. On May 14, 2014, Defendants served 6 Exhibit R App. 167 responses to Plaintiffs’ discovery requests.2 See Plaintiffs’ Exhibit 2, Defendants’ Discovery Responses. Defendants produced 184 pages of documents, but withheld hundreds of pages more that are responsive and discoverable. A. There is no “accountant-client privilege” in Texas. 21. Defendants withheld various categories of accounting records for Defendant 8650 Frisco, LLC, on the basis of an asserted privilege that does not exist in Texas. See Plaintiffs’ Exhibit 2, Defendants’ Discovery Responses, Requests for Production Nos. 1, 2, 4, and 8. Plaintiffs incorporate the arguments set forth in their Emergency Motion to Compel and for Sanctions, filed April 24, 2014, and the arguments made at the hearing on May 12, 2014, as if set forth verbatim herein. The bottom line is that Texas law does not recognize an accountant-client privilege and Defendants cannot withhold responsive and discoverable documents on that basis. 22. The Court has already ruled on this point when it compelled third party production from Defendants ex-accountant. Defendants not only asserted a baseless objection, but they withheld production of documents based on an objection the Court has already overruled. The result is yet another motion to compel. B. There is no “tax return privilege.” 23. Defendants withheld the tax records, including K-1 forms, relating to 8650 Frisco, LLC, on the basis of a law that renders information confidential but not privileged. See Plaintiffs’ Exhibit 2, Request for Production No. 7. Judge Rosenthal addressed exactly this situation in Alpert v. Riley, No. CIV.A. H-04-CV-3774, 2009 WL 1226767 (S.D. Tex. Apr. 30, 2009). Like the Alpert defendants, these Defendants do not specify on which part of Section 6103 they rely. Regardless, 2 It may be interesting to note that some of Defendants’ answers to interrogatories and admissions appear to contradict the documents produced by Defendants. Nevertheless, Plaintiffs will refrain from making accusations of perjury until the evidence is more fully developed. 7 Exhibit R App. 168 Section 6103 does not impose secrecy obligations on the defendants and does not give them a blanket privilege or protection against discovery. Section 6103 applies only to government officers and employees. Section 6103 cannot be used invoked to “block access, through pretrial discovery or otherwise, to copies of tax returns in the possession of litigants.” Alpert v. Riley, No. CIV.A. H-04-CV-3774, 2009 WL 1226767 (S.D. Tex. Apr. 30, 2009) (emphasis added), citing Commodity Futures Trading Comm'n v. Collins, 997 F.2d 1230, 1233 (7th Cir.1993). The Supreme Court of the United States has specifically held that “although tax returns . . . are made confidential within the government bureau, copies in the hands of the taxpayer are held subject to discovery.” St. Regis Paper Co. v. United States, 368 U.S. 208, 218–19 (1961) (emphasis added; internal citations omitted). In short, there is no accountant- client privilege, and there is no tax return privilege. The Court should overrule Defendants’ spurious objections and order Defendants to produce their tax returns. C. Defendants’ bank records are discoverable. 24. Defendants withheld the bank statements of 8650 Frisco, LLC, on the basis that it “is an improper method to request records of a financial institution” under TEX. FIN. CODE § 59.006. See Plaintiffs’ Exhibit 2, Request for Production No. 5. Plaintiffs note, however, that section 59.006 governs the production of documents by the financial institution, not the production of documents in the possession, custody, or control of a party. Subsection (b) provides that “A financial institution shall produce . . . .” Subsection (e) governs a party- customer’s obligation regarding “the financial institution’s compliance with a record request.” Subsection (f) provides time lines before which “[a] financial institution may not be required to produce a record.” TEX. FIN. CODE § 59.006(b), (e), (f) (emphasis added). Section 59.006 simply does not apply to a request for documents directly from the customer. Accordingly, the Court should overrule Defendants’ objection and order Defendants to produce the bank statements of Defendant 8650 Frisco, LLC. 8 Exhibit R App. 169 D. Defendants’ financial records are discoverable. 25. Defendants claimed to produce “all financial records of 8650 Frisco, LLC,” see Plaintiffs’ Exhibit 2, Defendants’ Discovery Responses at 14 but in fact produced only those documents Plaintiffs submitted as exhibits at the hearing on April 7, 2014. The Court should overrule Defendants’ objections and order Defendants to produce the financial records of Defendant 8650 Frisco, LLC. III. The Court should appoint a discovery master. 26. During the progress of this lawsuit, Defendants have consistently engaged in dilatory tactics with no purpose other than delay and increasing cost. Defendants have lodged spurious objections about, for example, signatures, distances, and privileges which do not exist under Texas law. Defendants have made unsubstantiated allegations about the unauthorized practice of law and subornation of perjury. And Defendants have refused to appear for deposition despite the Court’s order that they do so. In short, this is an exceptional case in which good cause exists for the appointment of a discovery master under Rule 171, TEX. R. CIV. P. 27. Accordingly, Plaintiffs respectfully request that the Court appoint a master in chancery under Rule 171 to control the discovery phase of this case by hearing and ruling upon objections lodged with respect to written discovery; by participating in depositions for the purpose of hearing and ruling upon any objections which may be lodged; and by hearing and ruling upon any discovery motions filed by either party, including the imposition of sanctions, if appropriate, under Rule 215, TEX. R. CIV. P. IV. Plaintiffs are entitled to recover their costs incurred in filing this response. 28. As discussed above, Defendants’ motion to stay is groundless because it has no basis in law or fact and is not warranted by good faith argument for the extension, modification, or reversal of existing law. See Tex. R. Civ. P. 13. Simply put, Defendants filed their motion to stay merely to postpone their depositions and to increase the cost of litigation. As a legal matter, 9 Exhibit R App. 170 the relief they are requesting is expressly prohibited. As a factual matter, the relief they claim to be seeking does not line up with their actions thus far. If Defendants truly sought to reduce their costs, they would have set a hearing on their motion to transfer venue long ago. 29. Similarly, as discussed above, Defendants’ objections to Plaintiffs’ discovery requests have no basis in law or fact and have been lodged solely to delay and increase the costs of this litigation. 30. Accordingly, Defendants should be ordered to personally appear before this court and show cause why they should not be sanctioned under Rules 13 and 215 for their conduct in filing groundless and bad faith motions and discovery responses. At this stage, Plaintiffs merely request that they be awarded their reasonable expenses, including attorneys’ fees, caused by Defendants’ groundless, bad faith, and harassing conduct. CONCLUSION Plaintiffs are attempting to fairly, efficiently, and expeditiously prosecute their claims, but Defendants have consistently blocked Plaintiffs’ efforts by lodging groundless and bad faith objections and filing groundless and bad faith motions. The Court should deny Defendants’ motion to stay, compel Defendants to produce all their responsive documents, and compel Defendants to appear for deposition in Harris County, Texas. Further, the Court should order Defendants to personally appear before the Court to show cause why they should not be sanctioned under Rules 13 and 215, TEX. R. CIV. P. Finally, the Court should appoint a master in chancery to resolve any future discovery disputes between the parties. Furthermore, Defendants’ counsel have engaged in a course of conduct indicating an unwillingness to abide by the rules of civil procedure, the rules of professional conduct, and the Texas Lawyers Creed. Plaintiffs respectfully request that the Court consider imposing such sanctions as may be appropriate to encourage Defendants and their counsel to do so, including but not limited to a finding that Defendants have consented to venue in Harris County, Texas. 10 Exhibit R App. 171 Plaintiffs pray for such other and further relief to which they may be entitled. 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 ATTORNEYS FOR PLAINTIFFS LOS CUCOS MEXICAN CAFÉ VIII, Inc., LOS CUCOS MEXICAN CAFÉ IV, Inc., MANUEL CABRERA, and SERGIO CABRERA 11 Exhibit R App. 172 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 June 11, 2014. Via Fax: 972-267-5072 and e-file Nicholas Mosser MOSSER LAW PLLC 17110 Dallas Pkwy, Suite 290 Dallas, TX 75248 /s/ Jeremy M. Masten Jeremy M. Masten 12 Exhibit R App. 173 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 R EXHIBIT 1 App. 174 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 R App. 175 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 R App. 176 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 R App. 177 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 R App. 178 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 coun [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4054887. Public record. Not legal advice.