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