ACCEPTED
01-15-00423-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/7/2015 11:44:52 AM
CHRISTOPHER PRINE
CLERK
No. 01-15-00423-CV st
FILED IN
1 COURT OF APPEALS
HOUSTON, TX
IN THE MAY 7, 2015
CHRISTOPHER A. PRINE,
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
EMERGENCY RELIEF REQUESTED
MOTION FOR EMERGENCY TEMPORARY RELIEF TO STAY ACTION
BY THE TRIAL COURT
TO THE HONORABLE FIRST COURT OF APPEALS:
Relators, 8650 Frisco LLC, Mandona, LLC, Galovelho, LLC, Bahtche,
LLC, Claudio Nunes, and David Jeiel Rodrigues (hereinafter “Relators”) file
this, the Relators’ Motion for Temporary Relief and would respectfully show
the Court as follows:
INTRODUCTION
1. Relators are 8650 Frisco LLC, Mandona, LLC, Galovelho, LLC,
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 1 OF 8
Bahtche, LLC, Claudio Nunes, and David Jeiel Rodrigues.
2. The Real Parties In Interest are Los Cucos Mexican Café VIII, Inc., Los
Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera
3. Respondent is the Honorable Jaclanel McFarland, Judge Presiding of
the 133rd Judicial District Court, located in Harris County.
4. Relators filed their Petition for Writ of Mandamus on May 6, 2015, in the
above captioned case.
5. Relators attach a certificate of compliance certifying that on May 7,
2015, they notified respondent and real parties in interest by expedited
means that a motion for temporary relief has been filed. Tex. R. App. P.
52.10(a).
6. The original proceeding in which a petition for writ of mandamus was
filed complains of two orders issued by the Respondent compelling
discovery responses and imposing sanctions on the Relators for failure
to comply with previous discovery orders.
7. Respondent’s April 1, 2015 order compelled discovery of documents
which have no relevance to the live pleading on file with the trial court.
8. Additionally, Respondent’s April 27, 2015 Order included sanctions
barring Relators from further discovery until the documents are
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 2 OF 8
produced, taxing costs incurred in securing production of the
documents to the Relators, and conclusively establishing an unpleaded
issue in favor of the Real Parties in Interest.
9. Finally the order demanded compliance by hand delivery of responsive
documents to the office of Counsel for the Real Parties in Interest forty-
eight hours after the Respondent signed the order. Said office is in
Houston, and is 260 miles from the Office of Counsel for Relators. The
documents for which discovery was compelled had been served
pursuant to TEX. R. CIV. P. 21 and 21a twice previously.
10. Respondent signed this order in the presence of Counsel for Real
Parties in Interest but outside the presence of Relators’ attorney.
11. On May 3, 2015, Counsel for Real Parties in Interest served the April
27, 2015 order on Relators’ attorney requiring compliance by April 29,
2015. Counsel then demanded compliance by noon on May 4, 2015.
This letter is attached to the motion as “Exhibit A” and is incorporated
in haec verba.
12. On May 4, 2015, Counsel for Real Parties in Interest filed with the
Respondent and served on Relators’ attorneys its Fourth Motion to
Enforce the Court’s Order in which the Real Parties in Interest
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 3 OF 8
demanded that the Respondent strike the Relators’ pleadings for failure
to comply. The Fourth Motion to Enforce the Court’s Order is attached
to this motion as “Exhibit B” and is incorporated in haec verba. The
Real Parties in Interest set this matter for hearing on May 18, 2015.
ARGUMENT & AUTHORITIES
13. The Court may grant temporary relief pending its determination of an
original proceeding. Tex. R. App. P. 52.10(b).
14. This emergency stay is necessary to maintain the status quo of the
parties and to preserve the Court’s jurisdiction to consider the merits of
the original proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex.
App.—San Antonio 1995, orig. proceeding). Relators filed their Petition
in the above captioned case on May 6, 2015, seeking relief from both
the April 1, 2015 order and the April 27, 2015 order, both of which the
Real Parties In Interest seek to enforce in their Fourth Motion to Enforce
the Court’s Order.
15. The issues at the heart of Relators’ Petition for Writ of Mandamus are
the same issues on which the Real Parties’ in Interest Motion to Enforce
are based. See Exhibit B. Granting the Petition for Writ of Mandamus
would dispose the issues in the Petition and in the Fourth Motion to
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 4 OF 8
Enforce the Court’s Order simultaneously. A stay maintains the state of
affairs between the parties, and prevents irreparable harm from
accruing to either side, pending the court’s decision on the Relator’s
Petition for Writ of Mandamus.
16. Relator attaches an unsworn declaration to establish facts that are not
included in the appellate record, are not known to the Court in its official
capacity, and are not within the personal knowledge of the attorney
signing this motion. Tex. R. App. P. 10.2.
CONCLUSION
9. Because the issues raised by the Relators in above-captioned original
proceeding address all of the issues raised by the Real Parties in Interest in
their Fourth Motion to Compel, a stay would operate to prevent needless
expense to both parties and the trial court and would resolve the ongoing
discovery dispute.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Relators ask the Court for an
emergency stay of the Respondent’s consideration of Real Parties’ in Interest
Fourth Motion to Enforce until such time as this Court has had an opportunity
to review the merits of Relators’ above-captioned Petition for Writ of
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 5 OF 8
Mandamus. This stay will maintain the status quo of the parties and preserve
the Court’s jurisdiction to consider the merits of relator’s original proceeding.
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
2805 Dallas Parkway, Suite 220
Plano, Texas 75093
Tel. (972) 733-3223
Fax (469) 626-1073
courtdocuments@mosserlaw.com
LAWYERS FOR RELATORS
CERTIFICATE OF COMPLIANCE 1
In accordance with Tex. R. App. P. 52.10, the relators have notified all
parties by expedited means that a motion for temporary relief has been or
would be filed in this court. The following parties were notified:
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
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 6 OF 8
Real Parties In Interest
Los Cucos Mexican Café VIII, Inc.;
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@stephensdomnitz.com
/s/ Paul J. Downey
Paul J. Downey
CERTIFICATE OF COMPLIANCE 2
I certify that this Motion for Leave to File Appellee’s Sur-Reply complies
with the word limit of Tex. R. App. P. 9.4 because it contains 867 words,
excluding the parts of the motion exempted by Tex. R. App. P. 9.4. I relied
on the word count feature of Corel WordPerfectX6 to reach this number
/s/Paul J. Downey
Paul J. Downey
CERTIFICATE OF CONFERENCE
I certify that on May 7, 2015, I attempted to confer with Kelly Stephens, the
attorney-in-charge for the Real Parties’ In Interest litigation efforts in
accordance with TEX. R. APP. P. 10.1(a)(5). He failed to respond to the
request prior to the filing of this motion.
/s/ Nicholas D. Mosser
Nicholas D. Mosser
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 7 OF 8
CERTIFICATE OF SERVICE
In accordance with TEX. R. APP. P. 9.5, I certify that on May 7, 2015, I
served a copy of this Motion for Temporary Relief on the following parties:
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
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@stephensdomnitz.com
/s/ Paul J. Downey
Paul J. Downey
RELATORS’ MOTION FOR TEMPORARY RELIEF PAGE 8 OF 8
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 custod ians of the records at Mosser Law, PLLC.
4. Attached hereto are the following 50 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- Letter from Real Parties in Interest Dated May 3,
2015;
b. Exhibit B - Real Parties' in Interest Fourth Motion to Enforce the
Court's Order, filed May 4, 2015
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.
P/(2z_ Z ~
PauiJ. Er~ ~
HAWASH MEADE
HAWASH MEADE GASTON NEESE & CJCACK LLP
Samuel B. Haren
sharen@hmgnc.com
713-658-9001 (phone)
713-658-9011 (fax)
May 3, 2015
Via Facsimile:
(469) 626-1073
Mr. James C. Mosser
Mr. Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
Re: Cause No. 2014-10896, Los Cucos Mexican Cafe VIIL Inc. et al. v. 8650 Frisco, LLC et
al. in the 133rd Judicial District Comt ofHanis County, Texas
Dear Mr. Mosser:
The Comt' s order is attached. As you are aware, it was readily available to anyone from the
Court's clerk and to any licensed attomey from the District Clerk's website. As stated in my previous
letter, if you have not complied with the Court's order by noon on Monday, May 4, 2015, we will file a
fomth motion to enforce the Comt's order.
_;'_ff
~-H-a-re_n_ __
2118 Smith Street I Houston, Texas 77002
Main Phone: (713) 658-9001 I Main Facsimile: (713) 658-9011
www. hmg II p.com
Exhibit A Page 1
CAUSE NO 2014-10896
LOS CUCOS MEXICAN CAFE Vill,
INC , LOS CUCOS MEXICAN
§
§
IN THE DISTRICT COURT OF f,Z -
CAFE IV, INC , MANUEL §
cf Mr£u=x
*
CABRERA, and SERGIO §
CABRERA, §
Plamtiffs § /tTFE)(
§ ~
v § (}
§ HARRIS CO~, TEXAS ""'
8650 FRISCO, LLC D/B/A ESTILO § 0~ ~ 9
GAUCHO BRAZILIAN § ~ CP
STEAKHOUSE, MANDONA, LLC, § 0~
GALOVELHO, LLC, BAHTCHE, § «:::}~
LLC, CLAUDIO NUNES, and § ~ 0
DAVID JEIEL RODRIGUES, § 0~ ~
Defendants § Ul~ JUDICIAL DISTRICT&
ftj(9}
Order Grantm
Third MotiOn To En~ he Court's Order
On thrs day the Court came to con~Wlamtrffs' Thrrd Matron to Enforce the Court's
cg
Order (the "Motion") After consrdenn~e facts, law, and argument of counsel, the Court has
decrded to GRANT the Matron nt~nts Will produce all documents responsive to Requests
for Production 1, 2, 3, 4, 5, 7~Q8 contamed m Exhrbrt 1 to the Mohon (the "Documents")
~0.
Thrs productron must be ~hrough hand delivery dunng normal busmess hours to Andrew
Meade or Samuel H~
Gat HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smrth,
o~j
Houston, Texas 7f!;Qj. ·'
The ~Q fiuther finds that Defendants VIOlated three of the Court's pnor orders by
farlmg to ~uce responsrve documents Thrs misconduct Is part of a larger pattern of Improper
objectwns, mentless motions, frrvolous arguments, fergned rgnotance of baste factual and legal
Issues, and drshonest gamesmanship m vrolatwn of Texas Rule of Crvll Procedure 13 Pt evrous
warnmgs from the Court have been meffectrve m forcmg Defendants to comply wrth the Court's
Exhibit A Page 2
orders or with Texas law, and another warnmg IS unlikely to achieve better results Moreover,
another warnmg would only encourage Defendants to contmue their egregwus behaviOr m the
future
Accordmgly, the Court ltnposes the followrng sanctiOns
•
*
Defendants may not conduct additional discovery m this matter u~~representattve
of 8650 Fnsco, LLC stgns a sworn affidavit of compliance wtth ~~rder,
• Defendants shall pay $ iV()V, f30 to Plamtlffs fot; ~ costs mcurred m
secunng productiOn of the. ocuments, and ~
• the Issue of whether Plamtrffs face Irreparable harm ~~e lack of the note/secunty
requrred by the parties' contract IS conclusively es~Yed m Plarntiffs' favor
0~
Should Defendants fall to comply w1th this order w~ forty~eight hours of the stgnature
hereof, Defendants and their attorneys of record
WJ
wtl~ asked to personally appear and show
cause as to why they should not be held m cont~~th1s Court
~ru
Signed on the _Jj_ day of 4f:rt?JTION TO COMPEL
0
The Court, having considered !®fendants' Motion to Stay All Matters and Plaintiffs'
oQ
Third Motion to Compel and th~tive responses, arguments of counsel, and evidence, has
determined that Defendants' ~on should be and is hereby DENIED and that Plaintiffs' motion
should be and is hereby G~ED. Specifically:
The Court DE~gefendants' request to stay all matters.
. The Cou!J ~~y OVERRULES Defendants' objections to Plaintiffs' Requests for
Production No,2, 3, 4, 5, 7, and 8. IT IS ORDERED that Defendants shall produce all
~
document~onsive to Requests for Production Nos. 1, 2, 3, 4, 5, 7, and 8 within 24 hours of
the entry of this order.
Th~om t Fllq!JS that Defeudams' co,msernasahused the discovery_pr~'Sis_fiil:g
l'(oM:;it;A-';-enr-:ln~ermmea that the followillg sanctions are appropriate~ satisfy the legitimate-
Exhibit B
Exhibit 3 Page 36
~I 1 A purposes of discovery sanctions, and are nenher more 1101 less stringent than nece:.:.ary to-.
11\j-/ '-- aceef!!plishjtT7}Se purpes&.-
AcsorQ_ingly, IT IS ORDERED that all---eXpenses of dtscovery assocmtecrwith th~
ooderlying motiotnl1101fie deposition of each of the Defenda"""fitrin aecordance with this oreer an:~
e MOSSER l.AW fiRM shall pay to~~
$ within I 0 days of the sig11iflg ei.th.iuJrder.~ (J
·rr- IS FURTHER ORDERED that the fullo"i"g fucts a~ABL!SHBD fi5r1rtl---...
I'm poses in thiS hbgatwn: that Defendants havo ART A INGINPART
PLAINTIFFS' MOTION TO ENFOR
0~
On thts dav the Court came to constder pJ.il~~ffs Sec.ond Mohon to Enforce the Court'&
- ~~
Order and for Sandton~ (lhe "Mot.Ion") ~Y cons1denng lhe facts, law, and argument of
<..ounscl, the Court has dec1ded to grant ~~otlontn part and deny the Mohon m pmt
Defendant!:. are ordered to ~e all documents tdenttfied m the CoUtt's July 28, 2014
Order on Detendant~ MottonJRGay All Mattml> and Plamhffs' Il11rd Matton to Compel lhts
p10dm.tton must be made~lo p m on Wednesday, Apttl 1, 2015 to both Sam Haten and
Kelly Stephen::, ~U
oW
Plmnt1f~~Dcfendants' request; ~or sancuons dlC dcmed
s:~J~ilieL-day or~ ~~
Exhibit B
Exhibit 4 Page 38
CAUSE NO 2014-10896
LOS CUCOS MEXICAN CAFE Vill,
INC , LOS CUCOS MEXICAN
§
§
IN THE DISTRICT COURT OF f,Z -
CAFE IV, INC , MANUEL §
cf Mr£u=x
*
CABRERA, and SERGIO §
CABRERA, §
Plamtiffs § /tTFE)(
§ ~
v § (}
§ HARRIS CO~, TEXAS ""'
8650 FRISCO, LLC D/B/A ESTILO § 0~ ~ 9
GAUCHO BRAZILIAN § ~ CP
STEAKHOUSE, MANDONA, LLC, § 0~
GALOVELHO, LLC, BAHTCHE, § «:::}~
LLC, CLAUDIO NUNES, and § ~ 0
DAVID JEIEL RODRIGUES, § 0~ ~
Defendants § Ul~ JUDICIAL DISTRICT&
ftj(9}
Order Grantm
Third MotiOn To En~ he Court's Order
On thrs day the Court came to con~Wlamtrffs' Thrrd Matron to Enforce the Court's
cg
Order (the "Motion") After consrdenn~e facts, law, and argument of counsel, the Court has
decrded to GRANT the Matron nt~nts Will produce all documents responsive to Requests
for Production 1, 2, 3, 4, 5, 7~Q8 contamed m Exhrbrt 1 to the Mohon (the "Documents")
~0.
Thrs productron must be ~hrough hand delivery dunng normal busmess hours to Andrew
Meade or Samuel H~
Gat HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smrth,
o~j
Houston, Texas 7f!;Qj. ·'
The ~Q fiuther finds that Defendants VIOlated three of the Court's pnor orders by
farlmg to ~uce responsrve documents Thrs misconduct Is part of a larger pattern of Improper
objectwns, mentless motions, frrvolous arguments, fergned rgnotance of baste factual and legal
Issues, and drshonest gamesmanship m vrolatwn of Texas Rule of Crvll Procedure 13 Pt evrous
warnmgs from the Court have been meffectrve m forcmg Defendants to comply wrth the Court's
Exhibit B
Exhibit 5 Page 39
orders or with Texas law, and another warnmg IS unlikely to achieve better results Moreover,
another warnmg would only encourage Defendants to contmue their egregwus behaviOr m the
future
Accordmgly, the Court ltnposes the followrng sanctiOns
•
*
Defendants may not conduct additional discovery m this matter u~~representattve
of 8650 Fnsco, LLC stgns a sworn affidavit of compliance wtth ~~rder,
• Defendants shall pay $ iV()V, f30 to Plamtlffs fot; ~ costs mcurred m
secunng productiOn of the. ocuments, and ~
• the Issue of whether Plamtrffs face Irreparable harm ~~e lack of the note/secunty
requrred by the parties' contract IS conclusively es~Yed m Plarntiffs' favor
0~
Should Defendants fall to comply w1th this order w~ forty~eight hours of the stgnature
hereof, Defendants and their attorneys of record
WJ
wtl~ asked to personally appear and show
cause as to why they should not be held m cont~~th1s Court
~ru
Signed on the _Jj_ day of 4f:rt?J