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
7/23/2015 11:04:26 PM
CHRISTOPHER PRINE
CLERK

No. 01-15-00423-CV

IN THE FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
FIRST JUDICIAL DISTRICT COURT OF APPEALS
7/23/2015 11:04:26 PM
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

MOTION FOR REHEARING

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

MOTION FOR REHEARING i
 TABLE OF CONTENTS

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

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

ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

THE COURT OF APPEALS SHOULD REVIEW THIS PETITION UNDER A VOID
ORDER STANDARD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IF THE ORDERS ARE NOT VOID, MANDAMUS IS STILL APPROPRIATE
UNDER THE ABUSE OF DISCRETION STANDARD - DUPLICATIVE
PRODUCTION OF DOCUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 8

THE APRIL 27, 2015 ORDER CONSTITUTES AN ABUSE OF DISCRETION, AS
REAL PARTIES IN INTEREST PRODUCED NO EVIDENCE SHOWING A
FAILURE TO PRODUCE DOCUMENTS.. . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

MOTION FOR REHEARING ii
 INDEX OF AUTHORITIES

CASES
Able v. Moye, 898 S.W.2d 766 (Tex. 1995). . . . . . . . . . . . . . . . . . . . . . . 20

Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805 (Tex. 1993). . . . . . . . . 5

Bair v. Hagans, 838 S.W.2d 677 (Tex.App.–Houston [1st Dist] 1992, writ
denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Christus Santa Rosa Health Care Corp. v. Botello, 424 S.W.3d 117
(Tex.App–San Antonio, 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Custom Corporates, Inc., v. Security Storage, Inc., 207 S.W.3d 835
(Tex.App.–Houston [14th Dist.] 2006, orig. proceeding).. . . . . . . . . . . . . . . 8

FKM Prtshp. v. Board of Regents of the Univ. of Houston Sys., 255 S.W.3d
619 (Tex. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

In re BDPJ Houston, LLC, 420 S.W.3d 309 (Tex.App–Houston [14th Dist.]
2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13

In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008). . . . . . . . . . . . . . . 12

In re Vaishangi, Inc., 442 S.W.3d 256 (Tex.2014). . . . . . . . . . . . . . . . . . . 8

Liberty Nat. Fire Ins. Co., v. Akin, 927 S.W.2d 627 (Tex. 1996). . . . . . . . 19

Randolph v. Jackson Walker, L.L.P. 29 S.W.3d 271 (Tex.App.–Houston
[14th Dist] 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. R. CIV. P. 21a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-11

Urbish v. 127th Judicial District Court, 708 S.W.2d 429 (Tex. 1986). . . . . . 8

Villafani v. Trejo, 251 S.W.3d 466 (Tex. 2008). . . . . . . . . . . . . . . . . . . . 5, 6

Walker v. Packer, 827 S.W.2d 833 (Tex.1992). . . . . . . . . . . . . . . 13, 18, 19

MOTION FOR REHEARING iii
RULES

TEX. R. CIV. P. 192.7(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. R. CIV. P. 193.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

TEX. R. CIV. P. 215.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8

TEX. R. CIV. P. 65. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

MOTION FOR REHEARING 1
 ISSUES PRESENTED FOR REVIEW

The issues presented in this motion for rehearing are:

1. Whether the Court of Appeals improperly denied Relators’ Petition for

Writ of Mandamus under a void order standard; or

2. Whether the Court of Appeals improperly denied Relator’s Petition for

Writ of Mandamus requesting vacation of Respondent’s April 1, 2015

and April 27, 2015 orders under an abuse of discretion standard by

ordering the production of documents already produced; or

3. Whether the Court of Appeals improperly denied Relator’s Petition for

Writ of Mandamus requesting vacation of Respondent’s April 27,

2015 order under an abuse of discretion standardBy finding

noncompliance with her April 1, 2015 order in the complete absence

of any facts establishing such noncompliance.

MOTION FOR REHEARING 2
 STATEMENT OF FACTS

1. On May 6, 2015, 8650 Frisco, LLC filed its Petition for Writ of

Mandamus in this Court, seeking relief from Respondent’s Orders

signed April 1, 2015 and April 27, 2015. App. 1-3.

2. During the pendency of this Mandamus, the trial court held a

subsequent hearing on the same issues before this court, and again

ruled against the Relators, and increased its imposed sanction of

attorney’s fees payable to the Real Parties in Interest to $5,000.00.

App.448-49.

3. On June 3, 2015, the Relators supplemented the Appendix and

Record with transcripts from the hearings held on March 30, 2015,

and on April 27, 2015 that resulted in the April 1, 2015 order and the

April 27, 2015 orders, respectively. App.457-508.

4. This court denied Relator’s Petition for Writ of Mandamus on June

23, 2015.

5. This Motion for Reconsideration Follows.

ARGUMENT

THE COURT OF APPEALS SHOULD REVIEW THIS PETITION UNDER A VOID
ORDER STANDARD

6. At all times, Relator has maintained that the Real Parties in Interest’s

MOTION FOR REHEARING 3
 filing of their Fourth Amended Petition worked a nullity of the

Respondent’s July 28, 2014 interlocutory order. App. at 461; App. at

481.

7. Simply stated, causes of action not contained in a Plaintiff’s amended

pleadings are voluntarily dismissed at the exact moment 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) The Real

Parties in Interest’s Original Petition, to which the their original

request for discovery relates, 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.

8. The Fourth Amended Petition contains a lone claim for breach of

contract relating exclusively to the settlement created and agreed to

on August 4, 2014. 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 Houston Sys.

255 S.W.3d at 633.

MOTION FOR REHEARING 4
9. 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 271, 274-75

(Tex.App.–Houston [14th Dist] 2000); See also App. at 114-15. (“That

motion to transfer was filed before the settlement agreement was

made and only addresses claims which are no longer asserted in this

action”). (emphasis added).

10. 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.

11. This court, however, has held that “an order to compel is not a lesser

MOTION FOR REHEARING 5
 sanction under rule 215.[2(b)].” Bair v. Hagans, 838 S.W.2d 677, 681

(Tex.App.–Houston [1st Dist] 1992, 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.

12. By extension then, a nonsuit also works a nullity of the Real Parties’

original discovery request. Nonsuits have been described as putting

the parties back in the position they were in before the suit was filed.

Christus Santa Rosa Health Care Corp. v. Botello, 424 S.W.3d 117,

124 (Tex.App–San Antonio, 2013)(citing Crofts v. Court of Civil

Appeals for the Eighth Supreme Judicial Dist. 362 S.W.2d 101, 104

(Tex. 1962)). If the nonsuit of these claims puts the parties back in

the position they were in before the suit was filed, then the Real

Parties in Interest’s Discovery Request, on which the Respondent’s

April and May Orders are based, was withdrawn the moment the

Real Parties in Interest nonsuited the claims to which those requests

were pertinent. See id.

13. Thus, Respondent issued orders where no relevant discovery

MOTION FOR REHEARING 6
 request had ever been made. As of July 23, 2015, Counsel for the

Real Parties in Interest have not made any new requests for

production relating to the lone breach of contract claim relating to the

settlement agreement asserted in its Fourth Amended Petition.

App.440. Counsel for the Real Parties 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 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)(emphasis added)

14. 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

MOTION FOR REHEARING 7
 made in writing. TEX. R. CIV. P. 192.7(a).

15. Because the July 28, 2014, order and the corresponding discovery

request propounded by Real Parties in interest are moot, Los Cucos

has failed to meet a necessary prerequisite to a motion to compel or

a motion for sanctions, such that Respondent had no capacity to

issue either the April 1 or April 27, 2015 orders. See TEX. R. CIV. P.

215.1(b)(3)(D). Thus, her order is void. See Urbish v. 127th Judicial

District Court, 708 S.W.2d 429, 431 (Tex. 1986)(“An order is void

when a court has no power or jurisdiction to render it.”).

16. Because the orders were void, 8650 Frisco, LLC, need not show that

it did not have an adequate appellate remedy, such that mandamus

relief is appropriate. In re Vaishangi, Inc., 442 S.W.3d 256, 261

(Tex.2014)(“In these instances, mandamus is proper even without a

showing that the relator lacks an adequate remedy at appeal”);

Custom Corporates, Inc., v. Security Storage, Inc., 207 S.W.3d 835,

838 (Tex.App.–Houston [14th Dist.] 2006, orig. proceeding).

IF THE ORDERS ARE NOT VOID, MANDAMUS IS STILL APPROPRIATE UNDER THE
ABUSE OF DISCRETION STANDARD - DUPLICATIVE PRODUCTION OF
DOCUMENTS

17. Even if this court rejects the concept that the July 28, 2015 order is

MOTION FOR REHEARING 8
 mooted by Real Parties’ nonsuit, the Respondent has abused her

discretion such that there is no adequate remedy on appeal, and

mandamus relief is appropriate.

18. The July 28, 2014 order states, “It is ordered that Defendants shall

produce all documents responsive to Requests for Production Nos.

1, 2, 3, 4, 5, 7, and 8 within 24 hours of the entry of this order.”

App.93.

19. The July 28, 2014 Order also required that 8650 Frisco, LLC, comply

with Respondent’s Order by serving the requested documents

electronically “in Plaintiff’s Office no later than 5:00 PM on August 1,

2014.” App. at 94.

20. 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

MOTION FOR REHEARING 9
 Rules of Civil Procedure, 8650 Frisco, LLC complied with the court’s

order. See id.

21. 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

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.

22. 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 compelling production

by ignoring its e-mail. Additionally, this argument ignores TEX. R.

CIV. P. 21a which states “Electronic service is complete on

MOTION FOR REHEARING 10
 transmission of the document to the serving party’s electronic filing

service provider.”

23. 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).

24. Respondent also erred by forcing 8650 Frisco to produce patently

irrelevant documents. 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

MOTION FOR REHEARING 11
 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).

25. The Court’s July 28, 2014 Order determined that the documents

sought by the Real Parties were relevant to the claims then pending

before the court. See App.93. However, these claims have since

been nonsuited, and a claim wholly unrelated to the original causes

of action has taken its place. App 108. Thus, Real Parties’ nonsuit of

claims to which the discovery requests were relevant renders the

requests irrelevant to the unrelated replacement claim in the Fourth

Amended Petition as 8650 Frisco, LLC, has repeatedly insisted.

App.461:9-12; 468:15-18; 488:10-14; See also 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); TEX. R. EVID.

401)(emphasis added).

26. In addition to showing an abuse of discretion, 8650 Frisco, LLC must

also show that it lacks an adequate appellate remedy. In re Team

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

An appellate remedy is inadequate “where a discovery order compels

MOTION FOR REHEARING 12
 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 833, 843

(Tex.1992).

27. Respondent’s April 1, 2015 order clearly orders 8650 Frisco, LLC, to

reproduce documents to the Real Parties in Interest that had already

been produced once. Compare App.1. with App.335-36, 339.

Respondent’s error is compounded by the fact that these financial

documents have no relevance to the sole claim for relief now pending

in the trial court. See 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); TEX. R. EVID. 401)(emphasis added).

28. Thus, mandamus is also appropriate under the abuse of discretion

standard, and the court should grant this motion for reconsideration

on this issue.

THE APRIL 27, 2015 ORDER CONSTITUTES AN ABUSE OF DISCRETION, AS REAL
PARTIES IN INTEREST PRODUCED NO EVIDENCE SHOWING A FAILURE TO
PRODUCE DOCUMENTS

29. Finally, Respondent had no discretion find that 8650 Frisco, LLC,

MOTION FOR REHEARING 13
 failed to comply with the Court’s April 1, 2015 Order compelling the

production of the requested documents.

30. Assuming that the July 28, 2014 order is valid, and the April 1, 2015

Order is also valid, the Real Parties in Interest have failed to show

non-compliance with the April 1, 2015 order, such that the

Respondent’s April 27. 2015 order is an abuse of discretion for which

there is no adequate remedy at appeal.

31. Respondent’s July 28, 2014 order called for production of “all

documents responsive to Requests for Production Nos. 1, 2, 3, 4, 5,

7, and 8 within 24 hours of the entry of this order.” App.93.

32. Respondent’s April 1, 2015 order builds on its earlier order stating,

“Defendants are ordered to produce all documents identified in the

Court’s July 28, 2014 Order on Defendant’s Motion to Stay all

Matters and Plaintiffs’ Third Motion to Compel. This production must

be made by 5:00PM on Wednesday, April 1, 2015...” App.1

33. In their Third Motion to Enforce, Real Parties in Interest acknowledge

that 8650 Frisco, LLC, “produced 112 additional pages” and then

move on to state that 8650 Frisco, LLC, “still failed to comply with the

court’s order.” App.361. The Real Parties list a table of what 8650

MOTION FOR REHEARING 14
 Frisco, LLC, produced to them. App.361-62. Despite the fact that

they acknowledge receipt of some 7347 pages of responsive

material, the Real Parties complain that Relators failed to produce

documents after July 2014. App.362.

34. Neither the April 1, 2015 order, nor the Second Motion to Enforce,

nor the July 28, 2014, order contemplate the production of

documents created after July 28, 2014. App.1; 93; 111-16.

35. In fact, Real Parties in Interest never make any request for relief that

includes a request for any documents created after July 28, 2014.

App.111-16; 360-62. The closest that they come to such a request is

to mention that “Defendants have not produced bank records before

April 2014 or after July 2014.” App.362. Again, no discovery request

has been propounded since 2014, and again, the only relief the Real

Parties in Interest sought from the court was a “command that the

Defendant’s comply with the Court’s Orders.” Id.

36. Thus, to the extent that 8650 Frisco, LLC, was required to produce

documents, it need only have produced documents in accordance

with the order issued July 28, 2014. App.93. Respondent affirmed

this in the Court’s April 1, 2015 order, which stated that “Defendants

MOTION FOR REHEARING 15
 are ordered to produce all documents identified in the Court’s July

28, 2014 Order on Defendant’s Motion to Stay all Matters and

Plaintiffs’ Third Motion to Compel.” App.1. Production beyond this

order simply was not commanded, nor was it requested. See App.1.,

App.93.

37. To that end, 8650 Frisco, LLC, produced documents that the Real

Parties in Interest did not already have in their possession, roughly

112 pages of documents spanning the time period between April

2014 and July 28, 2014, on March 31, 2015. App.344-59.

38. At the hearing on the Third Motion to Enforce, Real Parties in Interest

did not put on any evidence that 8650 Frisco, LLC, continued to

withhold responsive documents. See generally App. 473-88. Instead,

they simply stated, without any predicate or sworn testimony, that the

documents produced on March 31, 2015 were insufficient. App.478-

80. In fact, without being sworn and without producing any affidavits,

Counsel for Real Parties in Interest simply states:

“I am fully aware, as the managing partner of my law
firm...and as a small business owner and somebody who
owns rental properties and manages my own finances,
what kind of accounting records go into managing
businesses. Thats why I can look at the hundred pages
that they’ve produced and know that you don’t run a

MOTION FOR REHEARING 16
 restaurant on a hundred pages of documents that cover
only three months time span. Their document production
is grossly deficient.”

App.479:22-480:7.

39. Although the document production may not have been to the Real

Parties in Interest’s liking, they fail completely to establish that 8650

Frisco withheld any documents that were not already in their

possession, or that were not produced on March 31, 2015 in

compliance with the Respondent’s April 1, 2015 order. App.479-80;

App.1.

40. In fact, the Real Parties in Interest never tendered the documents

produced on March 31, 2015, to the court for in camera inspection to

determine whether additional documents could have or should have

been produced. App.360-429; App.473-488. The court’s sole basis

for determining that 8650 Frisco, LLC, did not comply with the April 1,

2015 order was the unsworn, unverified statement by Counsel for the

Real Parties in Interest that the document production was insufficient.

App.480:6-7.

41. Real Parties in Interest also attempted during the hearing to invoke

the ongoing duty to supplement without ever making such an

MOTION FOR REHEARING 17
 argument in either of its written motions. Compare App.479:6-7 with

App.111-16, 360-63. Such an argument is misplaced in light of the

facts. The duty to supplement a discovery response exists to the

extent that a party learns that the party’s response to written

discovery was incomplete or incorrect when made, or although

correct or complete when made, is no longer complete and correct.

TEX. R. CIV. P. 193.5.

42. This duty is inapplicable to the facts at bar; 8650 Frisco, LLC, did not

give a response that was incorrect or incomplete when made, or later

became incorrect or incomplete; on the contrary, 8650 Frisco, LLC,

was required to comply with the Respondent’s April 1, 2015, and July

28, 2015 orders. Thus, despite being raised for the first time during

the hearing, this argument is unpersuasive, and in any event does

not prove that the documents provided failed to comply with either

the April 1, 2015 or July 28, 2015 orders.

43. In reviewing the trial court’s resolution of factual issues underlying its

ruling, the reviewing court cannot substitute its judgment for that of

the trial court. Walker v. Packer, 827 S.W.2d at 839. The Relator

must establish that the trial court could reasonably reach only one

MOTION FOR REHEARING 18
 decision. Liberty Nat. Fire Ins. Co., v. Akin, 927 S.W.2d 627, 630

(Tex. 1996). Even if the reviewing court would have decided the

issue differently, it cannot disturb the trial court’s decision on a fact

issue unless the decision was arbitrary and unreasonable. Walker v.

Packer, 827 S.W.2d at 840.

44. In this case, there simply are no facts or evidence that establish

noncompliance with the Court’s April 1, 2015 order. App.111-16;

App.360-429; App.473-488. Thus, the total lack of evidence of failure

to comply compels the conclusion that the trial court had no basis on

which to grant the relief sought by the Real Parties in Interest. Thus,

the decision to award $1000.00 in attorneys’ fees and further compel

additional production not requested by the Real Parties constitutes a

decision that is arbitrary and unreasonable. See Walker v. Packer,

827 S.W.2d at 840. For this reason, 8650 Frisco, LLC, urges that this

Court find that the Respondent abused her discretion in issuing her

April 27, 2015 order.

45. Additionally, 8650 Frisco, LLC, has no adequate remedy at appeal as

a result of Respondent’s April 27, 2015 order. In addition to the

monetary sanction, Respondent ordered that 8650 Frisco, LLC, may

MOTION FOR REHEARING 19
 not conduct additional discovery in the matter until a representative

of the entity signs a sworn affidavit of compliance with the order and

conclusively established the issue of whether Plaintiffs are irreparably

harmed by the lack of security and note in Real Parties in Interest’s

favor. App.3.

46. A party has no adequate remedy by appeal to challenge a discovery

dispute when the party’s ability to present a viable defense is

impaired by the trial court’s error. See Able v. Moye, 898 S.W.2d

766, 771-72 (Tex. 1995)(trial court’s denial of discovery on crucial

issues was remedied by mandamus). In this case, 8650 Frisco, LLC,

cannot conduct additional discovery until it produces documents

unrequested by the Real Party. App.3. Additionally, it can no longer

defend the claim that Real Party is irreparably harmed by the lack of

security. Thus, its ability to present defenses to these claims are

harmed, such that there is no adequate remedy on appeal, such that

mandamus relief is appropriate. See Able v. Moye, 898 S.W.2d 766,

771-72 (Tex. 1995).

CONCLUSION

47. Respondent’s April 1, 2015 and April 27, 2015 orders are either void

MOTION FOR REHEARING 20
 or constitute an abuse of discretion such that 8650 Frisco, LLC, has

no adequate remedy at appeal. This court should grant this Motion

for Reconsideration and vacate these orders and also vacate

Respondent’s May 21, 2015 which is based on the prior orders, so

that justice might be done.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Relators pray that this court

grant this motion for reconsideration and find that:

a. Respondent’s April 1, 2015, and April 27, 2015 orders are void

as a matter of law; or

b. Respondent abused her discretion in issuing her April 1, 2015

and April 27, 2015 orders, as production had already been

made, such that there is no adequate remedy at law; or

c. Respondent acted arbitrarily and unreasonably in finding that

8650 Frisco, LLC, failed to comply with her April 1, 2015 order,

such that there is no adequate remedy at law; and

d. Vacate Respondent’s April 1, 2015 order, the April 27, 2015

order, and the May 21, 2015 order.

MOTION FOR REHEARING 21
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 Motion for Rehearing and conclude that
every factual statement in the Motion for Rehearing is supported by
competent evidence included in the appendix and record submitted to the
court and I certify that the documents attached in the appendix and record
are true and correct copies of the originals.

/s/ Paul J. Downey
Paul J. Downey

CERTIFICATE OF COMPLIANCE

I certify that there are 3797 words in Relator’s Motion for Rehearing. I
relied on the word count function of WordPerfect X6, which was used to
prepare this document.

/s/ Paul J. Downey

MOTION FOR REHEARING 22
Paul J. Downey

CERTIFICATE OF SERVICE

I certify that on July 23, 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
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

MOTION FOR REHEARING 23