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

ACCEPTED
01-15-00423-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/12/2015 11:14:29 AM
CHRISTOPHER PRINE
CLERK

No. 01-15-00423-CV

IN THE FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
FIRST JUDICIAL DISTRICT COURT OF APPEALS
5/12/2015 11:14:29 AM
CHRISTOPHER A. PRINE
at HOUSTON, TEXAS Clerk

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

SUPPLEMENTAL RECORD AND ARGUMENT FOR 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

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS i
 TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

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

SUPPLEMENTAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

SUPPLEMENTAL APPENDIX AND RECORD. . . . . . . . . . . . . . . . . . . . . . 8

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS ii
 INDEX OF AUTHORITIES

CASES
American Apparel Products, Inc. v. Brabs, Inc. 880 S.W.2d 267, 269
(Tex.App.–Houston [14th Dist.] 1994, no writ). . . . . . . . . . . . . . . . . . . . . 2, 3

B & W Supply, Inc. v. Beckman, 305 S.W. 3d 10, 16 (Tex.App.–Houston
[1st Dist] 2009, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Guzman v. Acuna, 653 S.W.2d 315, 318-19 (Tex.App.–San Antonio 1983,
writ dism’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Henderson v. KRTS, Inc., 822 S.W.2d 769, 773 (Tex.App.–Houston [1st
Dist.] 1992, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Horton v. Robinson, 776 S.W.2d 260, 267 (Tex.App.–El Paso 1989, no
writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Humphrey v. Camelot Ret. Cmty., 893 S.W.2d 55, 59 (Tex.App–Corpus
Christi 1994, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

In re BDPJ Houston, LLC, 420 S.W.3d 309 (Tex.App–Houston [14th Dist.]
2013)(original proceeding). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Low. v. Henry, 221 S.W.3d 609, 612 (Tex.2007). . . . . . . . . . . . . . . . . . . . 4

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS iii
 SUPPLEMENTAL STATEMENT OF FACTS

1. Three days after filing their Second Motion to Enforce the Court’s

Order and for Sanctions, The Real Parties in Interest filed their

Supplement to Plaintiffs’ Fourth Amended Petition. App. at 445-46.

SUPPLEMENTAL ARGUMENT

THE REQUESTED DISCOVERY REMAINS IRRELEVANT TO REAL PARTIES’ SOLE
CLAIM FOR RELIEF

2. 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

remains irrelevant to this suit.

3. As stated in the Original Petition for Writ of Mandamus, the only

claim for relief before the trial court is a breach of contract claim

stemming from the August 5, 2014, settlement agreement. App. at

108.

4. 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 &

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 1
 W Supply, Inc. v. Beckman, 305 S.W. 3d 10, 16 (Tex.App.–Houston

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

5. To be entitled to specific performance, the plaintiff must show that it

does not have an adequate remedy at law for damages, and that

damages would be inadequate compensation. American Apparel

Products, Inc. v. Brabs, Inc. 880 S.W.2d 267, 269

(Tex.App.–Houston [14th Dist.] 1994, no writ)(citing Nash v. Conatser,

410 S.W.2d 512, 520 (Tex.Civ.App.–Dallas 1966, no

writ))(“Generally, contracts concerning personal property will not be

specifically enforced unless a remedy at law is inadequate.”); See

also Horton v. Robinson, 776 S.W.2d 260, 267 (Tex.App.–El Paso

1989, no writ).

6. The Real Parties in interest claim that “Defendants’ refusal to

execute a promissory note, settlement agreement, and other security

agreements would constitute an irreparable harm by exposing

Plaintiffs to a credit risk they specifically contracted to avoid.” App. at

445. Unfortunately for the Real Parties in Interest, this issue does not

speak to whether damages are an adequate remedy at law. See

American Apparel Products, Inc. v. Brabs, Inc. 880 S.W.2d at 269. In

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 2
 fact, the supplemental pleading of the Real Parties in Interest states

that they only seek specific performance if damages cannot be

awarded. App. at 445. This completely undermines the attempt to

plead specific performance, since a party that cannot establish a

breach of contract for the purposes of monetary damages cannot

establish a breach of contract for the purpose of specific

performance. See Guzman v. Acuna, 653 S.W.2d 315, 318-19

(Tex.App.–San Antonio 1983, writ dism’d)(“Greater certainty

respecting the terms and conditions of a contract sought to be

enforced is required in equity than at law”).

7. “Irreparable Harm” is an element of injunctive relief, but no such relief

appears to be sought in this case. See Henderson v. KRTS, Inc., 822

S.W.2d 769, 773 (Tex.App.–Houston [1st Dist.] 1992, no writ). In any

event, Los Cucos would still have to plead sufficient facts to establish

that there is no adequate remedy at law, which it has failed to do.

See id. Thus, Los Cucos may have attempted to plead specific

performance, but has confused its pleading requirements with those

of a suit seeking injunctive relief. See id; see also American Apparel

Products, Inc. v. Brabs, Inc. 880 S.W.2d at 269.

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 3
8. Texas follows a “fair notice” standard for pleading, in which courts

assess the sufficiency of the pleadings by determining whether an

opposing party can ascertain from the pleading the nature, basic

issues, and type of evidence that might be relevant to the

controversy. Low. v. Henry, 221 S.W.3d 609, 612 (Tex.2007).

Because it cannot be readily determined whether the plaintiff seeks

specific performance or injunctive relief, the Respondent could not

have been in a position to rule on the “types of evidence that might

be relevant to the controversy.” See id. 8650 Frisco, LLC, brought

this argument to the Respondent’s attention, but to no avail. App. at

436-37.

9. The irrelevance of the documents sought by Los Cucos is

underscored by the fact that Los Cucos filed its Second Motion to

Enforce the Court’s Order “to assess Defendants’ compliance with

their settlement obligations” when it did not need these documents to

enter into the settlement agreement in the first place. Compare App.

at 114 with App. at 95-99, 339-340. Perhaps if the Real Parties in

Interest were seeking to rescind the Settlement Agreement based on

8650 Frisco’s inability to perform, the financial information would be

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 4
 relevant to that inability. See Humphrey v. Camelot Ret. Cmty., 893

S.W.2d 55, 59 (Tex.App–Corpus Christi 1994, no writ). The Real

Parties in Interest have pleaded something else entirely. They seek

damages or the means to compel 8650 Frisco to bind itself to a

contract for which a future breach can be remedied with damages.

See App at 445.

10. Thus, the proffered reason for the need for discovery, “to assess

Defendants’ 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 App. at 95-99, 339-340; In

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

Dist.] 2013)(original proceeding).

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

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 5
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
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

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 6
 CERTIFICATE OF COMPLIANCE

I certify that there are 940 words in this supplemental document which,
when taken in conjunction with the 4907 words in the Original Petition for
Writ of Mandamus, brings the total to 5847 words between both
documents. 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 12, 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
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

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 7
/s/ Paul J. Downey
Paul J. Downey

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 8
 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

SUPPLEMENTAL APPENDIX AND RECORD
TABLE OF CONTENTS

Exhibit AA - Supplement to Plaintiff’s Fourth Amended Petition. . App. 445

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 9
 CAUSE NO. 2014-10896

LOS CUCOS MEXICAN CAFE VIII, § IN THE DISTRICT COURT
INC., LOS CUCOS MEXICAN §
CAFE IV, INC., MANUEL §
CABRERA, and SERGIO §
CABRERA §
PLAINTIFFS, §
§
V. § 133rd JUDICIAL DISTRICT
§
8650 FRISCO LLC, MANDONA §
LLC, GALOVELHO LLC, §
BAHTCHE LLC, CLAUDIO §
NUNES, AND DAVID JEIEL §
RODRIGUES §
DEFENDANT. § OF HARRIS COUNTY, TEXAS

UNSWORN DECLARATION OF PAUL J. DOWNEY

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

this unsworn declaration, and personally acquainted with the facts

herein stated.

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

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

4. Attached hereto are the following 3 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 AA- Supplement to Plaintiff's Fourth Amended Petition;

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 12th Day of May, 2015.
 2/23/2015 8:37:36 PM
Chris Daniel - District Clerk Harris County
Envelope No. 4254256
By: JIMMY RODRIGUEZ
Filed: 2/23/2015 8:37:36 PM

Cause No. 2014-10896

Los Cucos Mexican Cafe VIII, Inc.; In the District Court of
Los Cucos Mexican Cafe IV, Inc.;
Manuel Cabrera; and Sergio Cabrera,
Plaintiffs

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

Supplement to Plaintiffs’ Fourth Amended Petition

1. Plaintiffs file this Supplement to Plaintiffs’ Fourth Amended Petition (the

“Supplement”) to clarify the relief requested in Plaintiffs’ Fourth Amended Petition (the

“Petition”). The Supplement does not replace the Petition.

2. Plaintiffs believe that the Petition gives fair notice of Plaintiffs’ need and request

for specific performance of the Rule 11 settlement agreement. See Stafford v. S. Vanity

Magazine, Inc., 231 S.W.3d 530, 535 (Tex. App.—Dallas 2007, pet. denied).

3. Out of an abundance of caution, Plaintiffs hereby expressly plead that, in the

event damages are not awarded in this action, (1) Defendants’ refusal to execute a promissory

note, settlement agreement, and other security agreements would constitute an irreparable harm

by exposing Plaintiffs to a credit risk they specifically contracted to avoid and (2) Plaintiffs

respectfully request that the Court order specific performance of Defendants’ obligations under

the Rule 11 settlement agreement, including, without limitation, the execution of a promissory

note, a settlement agreement, and a dismissal of its pending claim for declaratory relief.

Exhibit AA App. 445
 Respectfully submitted,

Stephens & Domnitz, PLLC

/s/ Kelly D. Stephens
Kelly D. Stephens
State Bar No. 19158300
P.O. Box 79734
2118 Smith Street
Houston, Texas 77279-9734
281-394-3287 (phone)
832-476-5460 (fax)
kstephens@stephensdomnitz.com

Hawash Meade Gaston
Neese & Cicack LLP

Andrew K. Meade
State Bar No. 24032854
Jeremy M. Masten
State Bar No. 24083454
Samuel B. Haren
State Bar No. 24059899
2118 Smith Street
Houston, Texas 77002
713-658-9001 (phone)
713-658-9011 (fax)
ameade@hmgnc.com
jmasten@hmgnc.com
sharen@hmgnc.com

Cox Smith Matthews Incorporated

David Kinder
State Bar No. 11432550
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205
210-554-4400 (phone)
210-226-8395 (fax)
dkinder@coxsmith.com

Attorneys for Plaintiffs

2
Exhibit AA App. 446
 Certificate of Service

A true and correct copy of the foregoing has been served on all counsel of record via
electronic service on February 23, 2015.

James C. Mosser
Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Pky, Suite 290
Dallas, Texas 75248

/s/ Samuel B. Haren
Samuel B. Haren

3
Exhibit AA App. 447