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
5/28/2015 6:07:52 PM
CHRISTOPHER PRINE
FILED IN
st CLERK
1 COURT OF APPEALS
No. 01-15-00423-CV HOUSTON, TX
May 28, 2015
CHRISTOPHER A. PRINE,
IN THE CLERK

FIRST JUDICIAL DISTRICT COURT OF APPEALS

at HOUSTON, TEXAS

IN RE 8650 FRISCO, LLC d/b/a ESTILO GAUCHO BRAZILIAN
STEAKHOUSE, MANDONA, LLC, GALOVELHO, LLC, BAHTCHE, LLC,
CLAUDIO NUNES, and DAVID JEIEL RODRIGUES,
Relators

ORIGINAL PROCEEDING FROM THE 133rd JUDICIAL DISTRICT COURT

OF

HARRIS COUNTY, TEXAS

SECOND 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

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

SUPPLEMENTAL PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUPPLEMENTAL APPENDIX AND RECORD.. . . . . . . . . . . . . . . . . . . . . 5

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

1. On May 14, 2015, The First Court Of Appeals denied Relator’s

Motion for Temporary Relief staying further action on this discovery

sanction by the Respondent.

2. On May 21, 2015, the Respondent proceeded to hear argument on

the Real Parties in Interest’s Fourth Motion to Enforce the Court’s

Order and granted the motion, imposing additional sanctions above

and beyond those contained in Respondent’s Order Granting Real

Parties in Interest’s Third Motion to Enforce the Court’s Order. App at

448-49.

3. On May 22, 2015, the Relators filed their objections to the orders.

App. at 450.

SUPPLEMENTAL ARGUMENT

4. Relators stand on the argument made in opposition to the

Respondent’s Second and Third Orders Granting Real Parties in

Interests’ Motion to Enforce the Court’s Order. Relators maintain that,

in addition to the April 1, 2015 and April 27, 2015 orders,

Respondent’s May 21, 2015 order is also void or, alternatively,

constitutes an abuse of discretion for which there is no adequate

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 1
 remedy at appeal. See Relator’s Original Petition for Writ of

Mandamus. All arguments made in support of a grant of a Writ of

Mandamus in Relators’ Petition apply with equal force to this newly

issued order. See id.

SUPPLEMENTAL 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; her April 27, 2015 order

compelling discovery and imposing sanctions; and her May 21, 2015 order

imposing sanctions and which upheld the April 1, 2015 and April 27, 2015

orders.

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

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 2
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

CERTIFICATE OF COMPLIANCE

I certify that there are 294 words in this supplemental document which,
when taken in conjunction with the 5847 words in the Original Petition for
Writ of Mandamus and the First Supplement, brings the total to 6141 words
between all 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 28, 2015, this document was served on the
following parties or counsel of records in accordance with Texas Rule of
Appellate Procedure 9.5:

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 3
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

Hawash Meade Gaston Neese & Cicack LLP
Samuel B. Haren
Texas Bar No. 24059899
2118 Smith Street
Houston, Texas 77002
Tel. 713-658-9001
Fax 713-658-9011
sharen@hmgnc.com

/s/ Paul J. Downey
Paul J. Downey

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 4
 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 AB - Order Granting Plaintiff’s Fourth Motion to Enforce
The Court’s Order. . . . . . . . . . . . . . . . . . . . . . . . . . . App. 448

Exhibit AC - Relator’s Objections to Respondent’s May 21, 2015
Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 450

SUPPLEMENT TO PETITION FOR WRIT OF MANDAMUS 5
 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 8 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 AB - Order Granting Plaintiff's Fourth Motion to Enforce

The Court's Order;

b. Exhibit AC - Defendants' Objections to the Court's Order

Granting Plaintiffs' Fourth Motion to Enforce the Court's Order.

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 281h Day of May, 2015.
 .A.
Cause No. 2014-10896 ~
~ ~·
Los Cocos Mexican Cafe VIII, Inc.; In the District Court of
Los Cocos 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, l33rd Judicial District
Defendant

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

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

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

dec ided to GRA NT the Motion.

The Court find s that

Defendants and their counsel have violated their discovery obligations by lodging

fri volous objections, making inadequate productions, refu sing to comply with the

Court's orders, and askin g third parties to destroy evidence;

• Defendants' coun sel has acted unprofessionally to the Court, the Court' s staff, and

Plaintiffs' counsel throughout thi s litigati on;

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

Exhibit AB App.448
 • Defendants did not comply with this Court's order even after sanctions were e ntered

and a show cause order was threatened.

The Court hereby imposes the following sanctions:
,-
• Defendants shall pay a sanction of$ S, CX>O ·aCto Plaintiffs. This sanction is based on
the reasonable and necessary attorneys' fees incurred by Plaintiffs in attempting to

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

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

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

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

the e ntry of this order.

·;=.~lilS'"MoSSe!:au;Jo NhuThncs;,~·~
• ~~
-~nthe da o f / ~- :-~
-
--,.m and show cayse as to wily they should not be held in contempt. - ·

•

This order does not rep lace or supplant the Court' s April 27, 20 15 Order Granting

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

remain in force.

Signed at ll:..dl~.m. on the .dl day of_ /l1
-'--"fl
-+--+Y
_ _ _ __ , 201 5.

I

2

Exhibit AB App.449
 5/22/2015 12:59:25 PM
Chris Daniel - District Clerk Harris County
Envelope No. 5397684
By: EVELYN PALMER
Filed: 5/22/2015 12:59:25 PM

CAUSE NO. 2014-10896
§ IN THE DISTRICT COURT OF
LOS CUCOS MEXICAN CAFÉ VIII,
§
INC., LOS CUCOS MEXICAN CAFÉ IV,
§
INC., MANUEL CABRERA, and
§
SERGIO CABRERA
§
PLAINTIFFS, §
§
V. § HARRIS COUNTY, TEXAS
§
§
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES and §
DAVID JEIEL RODRIGUES §
§
DEFENDANTS. § 133rd JUDICIAL DISTRICT

DEFENDANT’S OBJECTIONS TO THE COURT’S ORDER GRANTING PLAINTIFF’S
FOURTH MOTION TO ENFORCE THE COURT’S ORDER

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, Defendants, and file these objections to the court’s order granting Plaintiff’s

Fourth Motion to Enforce the Court’s Order, and in support thereof would show the

following:

1. Defendants object to the finding that “Defendants and their counsel have violated

their discovery obligations by lodging frivolous objections, making inadequate

productions, refusing to comply with the Court’s Orders and asking third parties to

destroy evidence.

a. Counsel for Plaintiffs made no evidentiary showing that any of these general

accusations ever took place between the court’s April 27, 2015 order and

May 4, 2015, the day Plaintiffs filed their Fourth Motion to enforce the court

Defendant’s Objections to Court’s Order on Fourth Motion to Enf orce Page 1 of 6

Exhibit AC App.450
 order.

b. Counsel for Plaintiffs never made any evidentiary showing that Defendants

were bound by a discovery obligation pursuant to TEX. R. CIV. P. 192.3. In

fact, both of Plaintiffs’ attorneys stated openly to the court that they have not

yet served any discovery requests subsequent to the filing of their Fourth

Amended Petition nonsuiting all prior claims, which has been on file with the

Court since January 21, 2015. Instead, Counsel for Plaintiffs continues to rely

on a discovery request served well prior to the filing of its January 21, 2015

Fourth Amended Petition which nonsuited the claims on which that discovery

request was based and this court’s July 27, 2014 Order Granting Plaintiff’s

First Motion to Enforce to maintain its position that they are owed certain

documents.

c. Counsel for Plaintiffs further made no evidentiary showing that the

Defendants have lodged any frivolous objections to the demand for

production or have produced materials that are less than responsive to a

valid discovery request. They further failed to cite to any such objections and

failed to include any such objections with their motion. Again, Defendants are

not bound to produce any discoverable material to the Plaintiffs in the

absence of a valid discovery request. As previously stated, Counsel for

Plaintiffs rely exclusively on a discovery request and this court’s order which

were mooted by the Plaintiff’s nonsuit of their claims in their Fourth Amended

Petition on January 21, 2015. Plaintiffs have made no discovery requests of

the Defendants since prior to the filing of the Fourth Amended Petition.

Defendant’s Objections to Court’s Order on Fourth Motion to Enf orce Page 2 of 6

Exhibit AC App.451
 d. Additionally, a finding of refusal to comply is disingenuous as it ignores the

fact that Defendants filed a Petition for Writ of Mandamus with the First Court

of Appeals, an action permitted by the Texas Rules of Appellate Procedure

when a party feels that the court’s actions are not permitted by the Texas

Rules of Civil Procedure or the statutes. To comply with the invalid discovery

request is to moot Defendant’s right to request extraordinary relief from the

appellate courts. Thus, Defendants are forced to choose between forgoing

the right to seek extraordinary relief or sanctions that harm the defendants’

finances and right to defend this suit. This is no choice, and is precisely what

original proceedings are intended to prevent.

e. Finally, Plaintiffs offered no evidence of any request made by the Defendants

to third parties to destroy evidence since January 21, 2015, and certainly

cannot prove that such a request was made following this court’s Orders

Granting Plaintiff’s Second and Third Motion to Enforce the Court’s Order.

2. Defendants object to the finding that Defendant’s Counsel has acted unprofessional

to the Court, the Court’s staff, and Plaintiff’s counsel throughout this

litigation.Counsel for Plaintiffs offered no evidence of any specific acts of

unprofessional conduct engaged in by the Defendants, and certainly cannot point

to anything that took place between April 27, 2015 and May 4, 2015. In fact, the only

evidence that the Plaintiffs offered the court on this finding was the fact that

Defendants had not complied with the court’s order. Again, the court, having actual

notice of the Petition for Writ of Mandamus filed with the First Court of Appeals,

should take notice that a request for extraordinary relief is the professional method

Defendant’s Objections to Court’s Order on Fourth Motion to Enf orce Page 3 of 6

Exhibit AC App.452
 of lodging a formal disagreement with the court regarding an order that it entered,

unless of course the court is of the opinion that filing a Petition for Extraordinary

Relief is unprofessional.

3. Defendants object to a finding that the Defendants have failed or refused to comply

with four prior orders from the Court. Counsel for Plaintiffs relies on orders entered

prior to the August 5, 2014 Settlement Agreement and the January 21, 2015 Fourth

Amended Petition which nonsuited all of Plaintiff’s Claims on which those two orders

were based. The Court should not find that Defendants willfully disobeyed any more

recent order of the Court, as Plaintiffs have not filed any discovery requests in

connection with the sole claim for relief present in their Fourth Amended Petition.

Because the Plaintiffs made no showing of any active discovery requests, the court’s

March 30, 2015 and April 27, 2015 orders cannot be considered valid orders, as the

plaintiffs failed to prove the condition precedent to any relief at the hearings on both

of those motions.

4. Defendants object to a finding that the Defendant’s did not comply with this Court’s

order even after sanctions were entered and a show cause order was threatened.

For the reasons stated above, compliance with a nonexistent discovery request, or

perhaps more precisely, a discovery request mooted by the Plaintiffs’ own hands,

deprives the Defendant of its right to seek extraordinary relief from the First Court

of Appeals.

5. Finally, Defendant’s object to an award of $5,000.00 in attorney’s fees incurred by

the Plaintiffs to secure production of these documents. No evidence was taken by

the court as to the costs of Plaintiff’s attorney’s fees in drafting the Fourth Motion

Defendant’s Objections to Court’s Order on Fourth Motion to Enf orce Page 4 of 6

Exhibit AC App.453
 and attending the two hearings held on this matter. Although Plaintiff did try to ask

for attorneys fees relating all the way back to the initiation of this case, the court

rejected this request as moot due to the settlement agreement between the parties

and subsequent nonsuit. Additionally, Plaintiffs tried to enter into evidence the cost

of preparing a response to the Petition for Writ of Mandamus, and the court rejected

this as well. Thus, there was no remaining evidence for the court to consider and

upon which to base a sanctions award of $5,000.00.

Respectfully submitted, MOSSER LAW PLLC

/s/ Nicholas D. 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
LAWYER FOR DEFENDANTS

Defendant’s Objections to Court’s Order on Fourth Motion to Enf orce Page 5 of 6

Exhibit AC App.454
 CERTIFICATE OF SERVICE

I certify that on May 22, 2015, a true and correct copy of this document was served
pursuant to Tex. R. Civ. P. 21 and 21a, to the following counsel/parties:

Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460

Nicholas D. Mosser
By: Nicholas D. Mosser

Defendant’s Objections to Court’s Order on Fourth Motion to Enf orce Page 6 of 6

Exhibit AC App.455