                                                                                     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?J<f!2                  ,2015

                                       a~                               ~c-k9J
                                ug~~
                        o~ry;
                             (~
                     ~0
                 ~
                  ~




                                                       2




Exhibit A                                                                                      Page 3
                                                                                                     5/4/2015 2:00:20 PM
                                                                               Chris Daniel - District Clerk Harris County
                                                                                                  Envelope No. 5138641
                                                                                                By: JIMMY RODRIGUEZ
                                                                                              Filed: 5/4/2015 2:00:20 PM

                                     Cause No. 2014-10896

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

v.
                                                               Harris County, Texas
8650 Frisco, LLC d/b/a Estilo Gaucho
Brazilian    Steakhouse;   Mandona,
LLC; Galovelho, LLC; Bahtche,
LLC; Claudio Nunes; and David Jeiel
Rodrigues,
Defendant                                                     133rd Judicial District


         Plaintiffs’ Fourth Motion to Enforce the Court’s Order and for Sanctions

       The Court has ordered Plaintiffs to produce certain financial documents on four separate

occasions. Defendants have refused to do so. Plaintiffs request that the Court obviate the need for

further document production by striking Defendants’ pleadings.

                                          Background

       At a June 23, 2014 hearing, the Court orally ordered Defendants to produce certain

financial documents. Exhibit 1, Transcript of Motion to Compel Hearing at 23:2–9. Defendants

pretended that, they “ha[d] never been served with an order from the court to produce

documents,” they were not required to do so. Exhibit 2 Letter from Mosser to Stephens. On July

28, 2014, the Court again ordered Defendants to produce all responsive documents “by August 1,

2014.” Exhibit 3, Order on Plaintiffs’ Third Motion to Compel. Defendants improperly served an

inadequate production. On March 30, 2015, the Court ordered Defendants a third time to produce

all responsive documents “by 5:00 p.m. on Wednesday, April 1, 2015.” Exhibit 4, Order on

Plaintiffs’ Second Motion to Enforce the Court’s Order. Defendants again violated the Court’s

order by making a woefully incomplete production.




Exhibit B                                                                                   Page 4
       On the morning of Monday, April 27, the Court ordered Defendants to (1) produce all

responsive documents and (2) pay a $1,000 sanction. Exhibit 5, Order Granting Plaintiffs’ Third

Motion to Enforce the Court’s Order. The Court further ordered that, “[s]hould Defendants fail to

comply with this order within forty-eight hours of the signature hereof, Defendants and their

attorneys of record will be asked to personally appear and show cause as to why they should be

held in contempt of this Court.” Id. Once again, Defendants ignored this order.

       On Thursday, April 30, Plaintiffs informed Defendants of their failure to comply with the

Court’s order and demanded production of the documents and payment of the sanction before

noon on Monday, May 4. Exhibit 6, Letter from Haren to Mosser. At 4:50 p.m. on Friday,

May 1, Defendants sent the following response:




Exhibit 7, Letter from Mosser to Stephens. Even though the order was available from the Court’s

office and through the District Clerk’s website, Plaintiffs forwarded a copy of the order to

Defendants on Sunday, May 3. Exhibit 8, Letter from Haren to Mosser.

                                          Background

       The Court has ordered Defendants to produce certain documents on four separate

occasions. Defendants have refused or failed to comply all four times. Defendants’ most recent is

excuse is that they were not “served” a copy of the Court’s order. See Exhibit 7, Letter from

Mosser to Stephens As the Court may recall, this was the same explanation Defendants offered


                                                 2
Exhibit B                                                                              Page 5
for their failure to comply with the original order compelling production. See Exhibit 2, Letter

from Mosser to Stephens. This excuse was invalid both times it was made. Regardless of

whether Defendants “served” a copy of the Court’s order, “[t]he law charges all parties and their

lawyers with notice of all orders and judgments that the court renders in the case.” Welborn

Mortg. Corp. v. Knowles, 854 S.W.2d 328, 331 (Tex. App.—Dallas 1993, writ denied). For this

reason alone, Defendants are deemed to have known the contents of the Court’s order.

       Moreover, “[t]he law charges one who has knowledge of facts that would cause a prudent

man to inquire further with notice of the facts that, by use of ordinary intelligence, he would

have learned.” Id. Defendants appeared at the April 27 hearing telephonically, so they were

aware that the Court ordered them to produce documents and pay a sanction. Defendants were

further aware that copies of the order could have been easily obtained by calling the Court’s

clerk or by visiting the District Clerk’s website. A reasonably prudent attorney who was ordered

to pay a sanction and produce documents would make an effort to obtain such orders rather than

remaining deliberately ignorant.

       Further, Defendants received actual notice at 1:57 p.m. on April 30 that the Court had

signed an order requiring Defendants produce documents and pay a sanction within 48 hours.

See Exhibit 6, Letter from Haren to Mosser. Thus, Defendants had at least 94 hours between

receipt of actual notice of the terms of the Court’s order and the filing of this motion.

       As a sanction for Defendants’ fourth failure to comply with the Court’s order, Plaintiffs

ask the Court to order that:

          Defendants’ attorneys pay Plaintiffs a sanction for all attorneys’ fees incurred in
           attempting to obtain the requested documents;

          Defendants and their attorneys appear and show cause as to why they should not be
           held in contempt; and

          Defendants be disallowed from conducting any discovery in this case.


                                                  3
Exhibit B                                                                                   Page 6
        Plaintiffs are hopeful that such a sanction will be sufficient to ensure future compliance

with the Court’s orders and Defendants’ obligations under the Texas Rules of Civil Procedure.

                                           Conclusion

        Defendants continue to ignore the Court’s orders. Plaintiffs pray that the Court further

sanction Defendants and order Defendants and their attorneys to show cause as to why they

should not be held in contempt. Plaintiffs further pray for all other relief to which they are

entitled.

                                                            Respectfully submitted,

                                                            Hawash Meade Gaston
                                                            Neese & Cicack LLP

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

                                                            Stephens & Domnitz, PLLC

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




                                                4
Exhibit B                                                                               Page 7
                                                                Cox Smith Matthews Incorporated

                                                                David Kinder
                                                                State Bar No. 11432550
                                                                112 East Pecan Street, Suite 1800
                                                                San Antonio, Texas 78205
                                                                210-554-5500 (phone)
                                                                210-226-8395 (fax)

                                                                Attorneys for Plaintiffs


                                     Certificate of Conference

         I sent two letters to opposing counsel in an effort to obtain the documents and payment

without further judicial intervention. I further tripled the time for compliance from the two days

allowed by the Court to six. Despite this, Defendants still have not complied with the Court’s

order.

                                                                /s/ Samuel B. Haren
                                                                Samuel B. Haren


                                       Certificate of Service

         A true and correct copy of the foregoing has been served on all counsel of record via

electronic service on May 4, 2015.

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

                                                                /s/ Samuel B. Haren
                                                                Samuel B. Haren




                                                 5
Exhibit B                                                                                  Page 8
                                       MOTION TO COMPEL
                                                             1

 1                         REPORTER'S RECORD
                         VOLUME 1 OF 1 VOLUME
 2                 TRIAL COURT CAUSE NO. 2014-10896

 3

 4   LOS CUCOS MEXICAN CAFE VIII(     IN THE DISTRICT COURT OF
     INC.;LOS CUCOS MEXICAN     (
 5   CAFE IV,INC.; MANUEL       (
     CABRERA;AND SERGIO CABRERA (
 6                              (
     VS.                        (     HARRIS COUNTY, TEXAS
 7                              (
     8650 FRISCO,LLC D/B/A ESTILO
 8   GAUCHO BRAZILIAN           (
     STEAKHOUSE; MANDONA,LLC;   (
 9   GALOVELHO,LLC;BAHTCHE,     (
     LLC; CLAUDIO NUNES; AND    (
10   DAVID JEIEL RODRIGUES      (     133rd JUDICIAL DISTRICT

11   _______________________________________________________

12
                           MOTION TO TRANSFER
13   _______________________________________________________

14

15                On the 23rd day of June, 2014, the following

16   proceedings came on to be held in the above-titled and

17   numbered cause before the Honorable JACLANEL McFARLAND,

18   Judge Presiding, held in Houston, Harris County, Texas.

19          Proceedings reported by computerized stenotype

20   machine.

21

22

23                            DARLENE STEIN
                        OFFICIAL COURT REPORTER
24                        133RD DISTRICT COURT
                          HARRIS COUNTY, TEXAS
25

                            DARLENE STEIN
Exhibit B
                            Exhibit 1                        Page 9
                                       MOTION TO COMPEL
                                                          2

 1                         APPEARANCES

 2   Mr. Andrew K. Meade
     SBN 24032854
 3   Mr. Samuel B. Haren
     SBN 24059899
 4   2118 Smith Street
     Houston, Texas 77002
 5   Telephone: (713)658-9001
     Telephone: (713)658-9011 (Fax)
 6   Attorney for Plaintiffs

 7
     Mr. Nicholas D. Mosser
 8   SBN 24075405
     Mr. James Mosser
 9   SBN 00789784
     17110 Dallas Parkway, Suite 290
10   Dallas, Texas97 75248
     Telephone:) (972)733-3223
11   Telephone:   (972)267-5072
     Attorney for Defendants
12

13

14

15

16

17

18

19

20

21

22

23

24

25

                          DARLENE STEIN
Exhibit B                                                 Page 10
                                     MOTION TO COMPEL
                                                         3

 1                      CHRONOLOGICAL INDEX

 2   June 23, 2014

 3                                                PAGE

 4   Proceedings...............................     4

 5   Argument by Mr. Meade.....................     6

 6   Argument by Mr. Mosser....................    11

 7   Proceedings concluded.....................    25

 8   Reporter's Certificate....................    26

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

                          DARLENE STEIN
Exhibit B                                                Page 11
                                            MOTION TO COMPEL
                                                                   4

 1                        (P R O C E E D I N G S)

 2                          June 23, 2014

 3

 4                    THE COURT:    This is Cause No. 2014-10896.

 5   And if everyone would announce who they are and who they

 6   represent, please.

 7                    MR. MEADE:    Andrew Meade and Sam Haran for

 8   the Plaintiffs.

 9                    THE COURT:    Mr. Mosser, if you'll announce

10   who you are and who you represent, please.

11                    MR. MOSSER:   I'm sorry?

12                    THE COURT:    Announce who you are and who

13   you represent.

14                    MR. MOSSER:   Yes, ma'am.    This is James

15   Mosser, Mosser Law Firm, PLLC, appearing telephonically

16   on behalf of all Defendants.

17                    THE COURT:    Okay.    I will tell you that I

18   don't have the motions in front of me.       My law clerks

19   have gone to get them.   For some reason, even though you

20   are on the docket, they thought it had been pulled.       So,

21   anyway, but I'm going to let y'all go ahead and start.            I

22   think it's Plaintiff's motions.        So, I'm going to let

23   them go ahead and start while the law clerks are bringing

24   in the actual written motions.

25                    MR. MEADE:    All right.   Your Honor, if

                            DARLENE STEIN
Exhibit B                                                      Page 12
                                           MOTION TO COMPEL
                                                                5

 1   you'll recall, this is a -- my client supplied about

 2   $950,000 in some equipment for a restaurant --

 3                   MR. MOSSER:   Your Honor, if he could get

 4   closer to the microphone or speak up louder, it would be

 5   easier to hear.

 6                   THE COURT:    Yeah.   Well, I'll put the

 7   phone a little closer.   But, you know, have you got a

 8   storm in Dallas?    Is that the problem or what?    You know,

 9   when you don't show up, it's -- we can only do the best

10   we can do.

11                   You know, that's why when I practiced law,

12   I didn't depend on Southwest.    Now, going to committee

13   meetings, I depended on Southwest a lot.      I was on a lot

14   of Baptist boards that met over on North Washington, the

15   Baptist building.    But when I had a case, I usually drove

16   down the night before or drove up or drove west or east or

17   wherever I was going.

18                   MR. MEADE:    And -- and for convenience,

19   Your Honor, we will try to set hearings in the case on

20   Fridays and Mondays to make that more convenient.

21                   THE COURT:    Well, we don't have hearings

22   on Fridays.   So, they have to be on Mondays.

23                   MR. MEADE:    Mondays.

24                   And so, the situation that we've got

25   here -- Your Honor will recall that we had previously

                             DARLENE STEIN
Exhibit B                                                       Page 13
                                         MOTION TO COMPEL
                                                               6

 1   noticed depositions for early May of the Defendants, that

 2   those depositions had been quashed.    So, we set a Motion

 3   to Compel.    The Court ordered the depositions to occur in

 4   June.    We agreed on dates that were put into the Court's

 5   order, which was June 9th and 10th for six depositions to

 6   occur.

 7                    On the Sunday before -- June 9th was a

 8   Monday.    10th was a Tuesday.   On the Sunday before,

 9   Mr. Mosser left a message on Mr. Stephen's phone, saying

10   that he wouldn't be attending the depositions nor would

11   his clients because -- and they subsequently filed a

12   motion.    Mr. Mosser apparently has a nervous system injury

13   of some sort that he came down with the day before the

14   depositions.    And there is nobody else within his

15   four-person law firm who's qualified to sit in a chair and

16   defend a deposition.

17                    He then went and set his Motion to Transfer

18   Venue, offered us some dates in late July that -- or --

19   that conflict with a trial that I have in Judge

20   Englehart's court.    And then when I rejected those dates,

21   offered dates in August.

22                    And we have run into a problem now, which

23   is that I leave the country on Saturday for two and a half

24   weeks.    I get back and have five days to prepare for a

25   week-long trial in Judge Englehart's court.    And then at

                            DARLENE STEIN
Exhibit B                                                     Page 14
                                       MOTION TO COMPEL
                                                               7

 1   the end of the week that I'm in trial with Judge Englehart

 2   is their Motion to Transfer Venue.    We have taken the

 3   position, which is correct under the rules, that discovery

 4   should not be and cannot be, in fact, abated while a

 5   Motion to Transfer Venue is pending.

 6                   They have taken the position and even set

 7   for today and then withdrew a Motion to Stay all

 8   proceedings while they have the opportunity to have that

 9   Motion to Transfer Venue heard.

10                   We're going to have to take these

11   depositions before the Motion to Transfer Venue hearing.

12   We need them ordered and compelled, and we need the Motion

13   to Transfer Venue hearing pushed back till that can

14   happen.

15                   But we also need Mr. Mosser or his clients

16   to pay the costs of the depositions that were ordered -- I

17   took Certificates of Nonappearance on all six

18   depositions -- and that they ought to have to bear the

19   cost on each of those.

20                   The next issue that we have is as you'll

21   recall, we have an accountant that worked for the company

22   in New Braunfels and then a new accountant in Dallas.         We

23   had the -- the letter and correspondence where they said,

24   you know, turn over all records and destroy all in your

25   possession.   And -- and we had to move to compel the

                           DARLENE STEIN
Exhibit B                                                    Page 15
                                     MOTION TO COMPEL
                                                             8

 1   accountant to produce the records from New Braunfels, and

 2   he did produce the records to us.

 3                  But we have also asked for certain

 4   financial records, including tax records and other

 5   financial documents from the Defendants themselves; and

 6   soon we will -- and, also, their new accountant, who will

 7   soon have to come down on a Motion to Compel, as well,

 8   although that's not part of today.

 9                  The -- the other issue that is part of

10   today is their responses and objections to our requests

11   for production, which deal with the financial and tax

12   records.

13                  Starting with the tax records, there are

14   numerous reasons why as members of the company and --

15   that -- that we're entitled to the tax records of an LLC.

16   First of all, the statute allows it.

17                  Second, we need to prepare our own tax

18   returns.

19                  Third, how they chose to characterize our

20   capital contributions, the proportion of what is

21   characterized as a loan and capital contribution and all

22   of that is going to be relevant to the parties' agreement

23   or disagreement about our membership status and -- and how

24   much money is owed in terms of -- our position is that

25   part of the money was loaned and part of it was a capital

                          DARLENE STEIN
Exhibit B                                                 Page 16
                                      MOTION TO COMPEL
                                                             9

 1   contribution, and -- and they may or may not disagree,

 2   although they haven't disclosed their theory of the case

 3   to us at all in any way.   That will be relevant, those tax

 4   records.

 5                   The other financial records, which include

 6   bank account statements, we're -- we're entitled to the

 7   books and records, again, of the company; but, also, these

 8   bank account statements are going to be relevant to

 9   whether distributions -- because under the -- under the

10   limited liability company act, under the partners' oral

11   agreement, and under the written agreements that were

12   exchanged, we would be entitled to distributions of

13   distributable cash.

14                   None have been made to us.   We believe some

15   have been made to the Defendants, substantial

16   distributions, and that there is distributable cash.    We

17   believe that, but we don't have the records to show it,

18   and the bank statements will go a long ways towards that.

19                   What we've met with to date is an objection

20   every step of the way and resistance even to Court-ordered

21   depositions.   And -- and the objection that was made, for

22   example, to the accountant's records was that objection of

23   privilege that the Texas courts don't recognize.    Well, it

24   was made again in response to requests for production

25   after the Court had already ruled on the objection in

                           DARLENE STEIN
Exhibit B                                                   Page 17
                                        MOTION TO COMPEL
                                                             10

 1   relation to the accountant.

 2                   They made other objections; for example,

 3   objecting that the Texas Finance Code provides the

 4   exclusive means to get bank account statements, even bank

 5   account statements of a party.    I -- I assure you that I

 6   will go to the bank, under the Texas Finance Code, and get

 7   the bank statements separately.    But that doesn't

 8   alleviate the obligation of a party to produce those bank

 9   statements.

10                   So, a recommendation in -- in one of my

11   motions is really -- it's really -- we're asking for the

12   relief but sort of recommending a path for the Court,

13   would be to appoint a discovery master in the case.     I

14   don't mind coming down here once a week, and I suspect we

15   will be back here again in a week.     And I'll tell you why.

16                   You know, we had these grills.   I -- I

17   don't know if you remember the -- the unique grills.

18   Well, we have reason to believe that the grills have been

19   destroyed.    And I've asked for an inspection of the

20   collateral, of -- of the property.     They haven't responded

21   to it.   I'm going to be asking the Court for it and

22   probably having to move it to compel.

23                   When these depositions do occur, I suspect

24   I'm going to meet with a series of objections and probably

25   instructions to the witness not to answer and that sort of

                            DARLENE STEIN
Exhibit B                                                    Page 18
                                         MOTION TO COMPEL
                                                              11

 1   thing.   And I -- and we can have the depositions in your

 2   chambers.    I leave it to the Court's discretion of how we

 3   deal with these issues; but I would rather, if we can

 4   avoid it -- and I -- I know that judges, including

 5   yourself, don't like us coming down here all the time on

 6   Motions to Compel.    I would like to avoid them, if

 7   possible.    And so, the appointment of a discovery master

 8   is one suggestion to do that.

 9                    And I'll let Mr. Mosser respond.

10                    THE COURT:    Mr. Mosser?

11                    MR. MOSSER:   Yes, ma'am.

12                    THE COURT:    You may respond.

13                    Hello?

14                    MR. MOSSER:   Yes, ma'am.   I'm right here.

15                    THE COURT:    Where -- you want to respond?

16                    MR. MOSSER:   Oh, yes, ma'am.    I surely

17   will.    Thank you.

18                    May it please the Court?    Let me go

19   backwards a little bit here.     Let's start with the grills

20   are being destroyed, which is a false statement made by

21   counsel.    It has become custom in this case.    The problem

22   is we sent notice to counsel that he should come and pick

23   up the grills, and counsel told us they weren't going to

24   pick up the grills.

25                    So, we told them if they leave the grills

                               DARLENE STEIN
Exhibit B                                                     Page 19
                                      MOTION TO COMPEL
                                                           12

 1   that they claim they loaned to my clients, we told them,

 2   If you don't pick them up, we'll just put them in storage;

 3   and you can pay the storage bill when you get here.

 4   Nobody said they were going to destroy them, and it's just

 5   outrageous that he would say those kinds of things.

 6                   As for bank accounts, the Finance Code does

 7   provide the method by which he can obtain the bank

 8   accounts.   But let's assume he doesn't want to do that and

 9   I'm required to deliver bank accounts.   If the Court will

10   recall, he mentioned that he held a deposition on written

11   questions for Mr. -- I can't remember the accountant's

12   name -- Hal Holtman, I think -- to produce all the records

13   he had related to anything with my clients.

14                   Now, if you will recall from the -- the

15   Temporary Injunction hearing, Mr. Holtman went and

16   testified on everything we told him he shouldn't be

17   testifying on; and then he subsequently, based on comment

18   from counsel this morning, delivered all the documents he

19   had to the Plaintiff's lawyers in this case.   That

20   includes the tax returns, all bank statements, all the

21   income statements, all the financial statements,

22   everything related to the business until Mr. Holtman was

23   fired.

24                   Now, the Court ordered that.   Mr. Holtman

25   turned them over, over our objection.    So, I don't think

                           DARLENE STEIN
Exhibit B                                                  Page 20
                                       MOTION TO COMPEL
                                                             13

 1   that we're required to produce records in a duplicitous

 2   manner that have already been produced by the accountant

 3   in this case.

 4                    And, secondly, those documents were

 5   produced to opposing counsel who has yet to this day

 6   served them on us.   When he gets discovery from whatever

 7   source it's from, he's required to serve everybody in the

 8   lawsuit, all parties, a copy of that discovery.    He has

 9   not done so.    So, I don't have any.

10                    Going back to the top of the complaint from

11   opposing counsel, I'm 69 years old; and I can't help it if

12   my sacral iliac joint gets sprained, inflamed, bruised,

13   and strained.    I can't do anything about that.   We

14   immediately notified, upon determination that I was

15   immobile, that this deposition had to be reset or

16   postponed.

17                    I think it's outrageous that I can't even

18   pick up the phone and call a counsel for a medical problem

19   that he won't reset depositions for or even respond to the

20   telephone calls.   I think it's outrageous that they file

21   motions claiming that they've had a conference with

22   opposing counsel, which is plainly false.   They didn't

23   have any conference with us.   In fact, they filed these

24   motions and then claimed that they had a conference after

25   they filed the motion.

                            DARLENE STEIN
Exhibit B                                                    Page 21
                                       MOTION TO COMPEL
                                                            14

 1                    As for offering dates, we offer to set a

 2   date in July; and understanding trial schedules, as I do,

 3   I was required to file a Motion to Continuance on -- let's

 4   see -- that date that he wanted to do these, the 16th,

 5   17th, somewhere in there because I had a special setting.

 6   I had to go into that court and request the Court reset

 7   the special setting in that case because of my sacral

 8   iliac sprain.

 9                    I don't under -- I suppose five years ago

10   when I had my quadruple bypass surgery, opposing counsel

11   would complain because that was just an excuse.    These are

12   not excuses.    These are real-live things.   We've offered a

13   second set of dates.   Counsel didn't even respond to them.

14                    Now, counsel also says that we don't -- we

15   should take depositions to get proof for the Motion to

16   Transfer Venue.    I don't think the Motion to Transfer

17   Venue is set for today, but he puts it in his -- in his

18   response or his Third Amended Motion to Compel, and I

19   don't understand.   He believes that the testimony given in

20   open court on the record and sworn to by his clients can't

21   be used in Motion to Transfer Venue.   At some point in

22   time, the Court will have to rule on that motion; and I

23   will be happy to defend that issue.

24                    As for costs, counsel fails to properly

25   prepare any cost statements, hasn't made any cost

                            DARLENE STEIN
Exhibit B                                                   Page 22
                                      MOTION TO COMPEL
                                                            15

 1   statements, hasn't suffered from any problems other than

 2   my sacral iliac joint sprain; and I don't think he would

 3   like me sitting in his conference room, taking the

 4   narcotics that I was taking and the side effects that go

 5   with it.

 6                   So, he has all of the financial records we

 7   believe that exist, delivered by Holtman over our

 8   objection.   He did not properly serve the accountant --

 9   the new accountant in Texas, which is more than 150 miles

10   and -- away, and he doesn't have a right to get anything

11   from him.

12                   And as for tax records from the LLC,

13   they're not members.   They never have been members.

14   They're not members.   They rejected the opportunity to

15   become a member, and that's clear testimony in the

16   Temporary Injunction hearing.

17                   So, I think I've covered the waterfront.

18   But as far as tax returns, the State of Texas has made

19   very clear by the Supreme Court and the Court of Appeals

20   in Houston -- I think every Court of Appeals has said it

21   is an abuse of discretion requiring the disclosure of

22   Federal income tax returns if other documents can provide

23   the information necessary.

24                   But in order to even search out and get

25   that information, opposing counsel is required to provide

                            DARLENE STEIN
Exhibit B                                                   Page 23
                                            MOTION TO COMPEL
                                                               16

 1   the relevancy and materiality that's necessary as to his

 2   claims.   He has none.   He hasn't presented any.     He hasn't

 3   asked for any.    He hasn't said a single word that shows

 4   that a tax return, a financial statement, or any of these

 5   other intrusive and burdensome matters are necessary for

 6   his claims.    And the Court should deny his motions in

 7   total.

 8                    Thank you.

 9                    THE COURT:    When do you want to take the

10   depositions?

11                    MR. MEADE:    Well --

12                    MR. MOSSER:   I'm sorry, Judge?

13                    THE COURT:    I'm -- I'm asking your

14   opposing counsel when he wants to take the depositions.

15                    MR. MEADE:    I knew you were going to ask

16   that, and I think the simplest answer to that is before

17   the Motion to Transfer Venue is heard.

18                    THE COURT:    Okay.

19                    MR. MEADE:    The more complex answer is

20   after the week of the 21st of July because I have a trial

21   that entire week.    But we are set number one.     So, we

22   will go; and I will be done that week because it's a

23   breach of contract case.

24                    So, following that week, I only have one

25   day that I have a -- I have a deposition currently set

                              DARLENE STEIN
Exhibit B                                                      Page 24
                                            MOTION TO COMPEL
                                                                 17

 1   that I'm defending on the 28th of July.       Otherwise, I am

 2   wide open to -- to take these depositions.

 3                    THE COURT:    Okay.   Counsel, you heard

 4   that, I assume.    So, pick a date after his trial in Judge

 5   Englehart's court and not on July -- what?

 6                    MR. MEADE:    28th.

 7                    THE COURT:    -- 28th that you can produce

 8   your people for depositions.

 9                    MR. MOSSER:   I'm looking at the calendar

10   now, Judge.

11                    THE COURT:    Okay.

12                    MR. MOSSER:   I would recommend August 4th

13   and 5th, and I -- I would like to also add, Judge, that

14   four of the depositions that were set, two of them -- on

15   two separate days, two of them were set at exactly the

16   same time.    And then the next day, two more were set at

17   exactly the same time, which I would discourage that

18   concept as appropriate.

19                    MR. MEADE:    And -- and here would be my

20   response.    If Mr. Mosser would cooperate with me --

21                    MR. MOSSER:   But the 4th and the 5th are

22   good with me, Judge.

23                    MR. MEADE:    If Mr. Mosser would cooperate

24   with me a little bit and let me know -- these are an

25   individual -- two individuals and four corporate

                            DARLENE STEIN
Exhibit B                                                        Page 25
                                           MOTION TO COMPEL
                                                              18

 1   representatives who may be, and I suspect will be, those

 2   same individuals -- could all be taken possibly at the

 3   same time or concurrently with each other.      But

 4   Mr. Mosser hasn't identified who are -- who's going to be

 5   the corporate representative.    So, I don't know how else

 6   to do it.

 7                   If he will identify who will be the

 8   corporate representatives for those entities, I will

 9   notice the -- the depositions so that they don't conflict

10   timewise with one other another.

11                   MR. MOSSER:   As you previously noticed,

12   the doc -- the areas of inquiry, Mr. Rodriguez will be

13   the deponent.

14                   MR. MEADE:    On all, Mr. Mosser?

15                   MR. MOSSER:   Yes.

16                   MR. MEADE:    Okay.   Then I will -- I will

17   set it up so that they don't conflict with one another.

18                   MR. MOSSER:   Thank you.

19                   THE COURT:    Okay.   So, pick, the 4th of

20   the 5th of August?

21                   MR. MEADE:    It will be both, Your Honor.

22                   THE COURT:    Oh, both.

23                   MR. MEADE:    Yeah.

24                   THE COURT:    Okay.   All right.   The

25   depositions are set for the 4th and the 5th.       And

                           DARLENE STEIN
Exhibit B                                                     Page 26
                                            MOTION TO COMPEL
                                                               19

 1   Plaintiff's counsel will send notice, but they are now

 2   set.    He'll send notice as to time and place, I assume,

 3   which I assume you've already -- where -- where are they

 4   going to be?

 5                    MR. MEADE:    Well, as Mr. Mosser doesn't

 6   have an office here in Houston --

 7                    THE COURT:    Okay.

 8                    MR. MEADE:    -- I'm just going to do them

 9   at my offices here in Houston, Your Honor.

10                    THE COURT:    Right.    And I presume that's

11   okay with you, Mr. Mosser?

12                    MR. MOSSER:   Oh, yes, ma'am, that's fine

13   with me.

14                    THE COURT:    Okay.    Now, as to fees of the

15   nonappearance, I'm not going to order anything at this

16   time.    I will consider it later as the case progresses,

17   depending on how discovery goes.        So, I will just hold

18   that under advisement.

19                    What else was there?

20                    MR. MEADE:    The objections, which I think

21   lie in the Third Motion to Compel, which are Motions to

22   Compel the responses to discovery that ask for a

23   variety -- it's -- it's a variety of financial

24   information, including bank statements and -- and tax

25   returns.

                            DARLENE STEIN
Exhibit B                                                      Page 27
                                          MOTION TO COMPEL
                                                                 20

 1                    THE COURT:    Mr. Mosser, have -- does your

 2   client have the bank statements?

 3                    MR. MOSSER:   I'm sorry, Judge?

 4                    THE COURT:    Does your client have the bank

 5   statements?

 6                    MR. MOSSER:   I think Mr. Holtman has them,

 7   and opposing counsel has collected everything Holtman

 8   has.    And I would like the Court to order opposing

 9   counsel to deliver those documents that he got from the

10   third-party witness Holtman to us.

11                    THE COURT:    Well, let me ask -- that --

12   that wasn't my question.

13                    MR. MOSSER:   I understand.

14                    THE COURT:    My question is:   Does your

15   client have them?

16                    MR. MOSSER:   No.   I think -- I think

17   Holtman has them all.

18                    THE COURT:    So, your client didn't keep a

19   copy?

20                    MR. MOSSER:   Nobody sends out copies of

21   bank statements any more, Judge.

22                    THE COURT:    Sure they do.   I get them

23   every month.

24                    MR. MOSSER:   I appreciate that, Your

25   Honor.   Let me put it a different way.    Many businesses

                             DARLENE STEIN
Exhibit B                                                        Page 28
                                           MOTION TO COMPEL
                                                              21

 1   do not get bank statement in paper form.

 2                   THE COURT:    Well, do they get them

 3   electronically where they can print them out?

 4                   MR. MOSSER:   My understanding, Your Honor,

 5   is that Holtman has all the bank statements.

 6                   THE COURT:    So, your client doesn't get

 7   the e-mail saying, Your bank statement is ready to be

 8   printed out; or they can't go in and print it out?

 9                   MR. MOSSER:   I haven't made that

10   particular inquiry.

11                   THE COURT:    Yeah.

12                   MR. MOSSER:   Because they're with the bank

13   and the accountant.

14                   THE COURT:    Well, my guess is your client

15   has access to them by -- if they -- if they're not like

16   me and they don't pay to get a paper statement or get a

17   paper statement, they get an e-mail saying, Your bank

18   statement is online.   And you just log in, and you can

19   print it out.

20                   MR. MOSSER:   I understand what the Court

21   is saying, but my suggestion is that they already have

22   all of that stuff.    They got it from Holtman.

23                   MR. MEADE:    Your Honor, if I -- if I could

24   add one -- as Your Honor may recall, they -- the

25   Defendants fired Mr. Holtman, who is the CPA, from the

                            DARLENE STEIN
Exhibit B                                                     Page 29
                                          MOTION TO COMPEL
                                                             22

 1   company in March, terminated my client's access and his

 2   access to all of the bank accounts.     Then -- then hired a

 3   new accountant located up in Dallas and identified him as

 4   the new CPA, to which Holtman was supposed to and did

 5   send all of the information.

 6                  As far as account statements, the -- it's

 7   an ongoing duty, in fact, and they -- they have the

 8   duty -- even if, in fact, we had gotten all of the

 9   information and -- and Mr. Mosser has just said he doesn't

10   actually know what we've gotten.     Even if had gotten all

11   of the information, it wouldn't alleviate their

12   responsibility to produce it, too, because, for example,

13   we might be missing a page of a bank statement.     We might

14   want to use a 173, you know, authentication means for the

15   documents.

16                  But there are certainly post termination of

17   Mr. Holtman, zero financial records that we have access to

18   but that the Defendants have access, custody, and control

19   over those documents exclusively; and that's what we're

20   asking for.

21                  THE COURT:    Okay.   So --

22                  MR. MEADE:    Their current accountant has

23   all of it, and they have all of it.

24                  THE COURT:    All right.

25                  MR. MOSSER:   Well, we don't really know

                          DARLENE STEIN
Exhibit B                                                    Page 30
                                           MOTION TO COMPEL
                                                               23

 1   that.

 2                   THE COURT:    Well, I'm going to overrule

 3   your objections and tell you to produce it if it's

 4   available to you.

 5                   MR. MOSSER:   From the time that Holtman

 6   was terminated?   Because they already have everything

 7   else.

 8                   THE COURT:    No.   Just from what they've

 9   requested.

10                   MR. MOSSER:   And will you order them to

11   deliver us what Holtman has?

12                   MR. MEADE:    I don't need to be ordered to,

13   Your Honor.   I will -- I haven't had him even ask me.         If

14   you send me a letter asking for it --

15                   THE COURT:    Well, he's asking now.     Send

16   it to him.

17                   MR. MEADE:    I'll send it to him, Your

18   Honor.

19                   THE COURT:    Yeah.   I'm not going to order

20   him, but he -- he said on the record now he's going to

21   send you copies of it.

22                   MR. MEADE:    Well, in fact, if it's

23   easiest, I will upload it onto FPT link; and you can

24   download it from your computer today.

25                   THE COURT:    You want to do that, Counsel?

                           DARLENE STEIN
Exhibit B                                                      Page 31
                                            MOTION TO COMPEL
                                                               24

 1                    MR. MOSSER:   Which kind of link?

 2                    THE COURT:    I don't know.   It's over my

 3   head.

 4                    MR. MEADE:    I will suggest a couple of

 5   means by which I can deliver the documents to you,

 6   Mr. Mosser.

 7                    THE COURT:    He will -- he will get them to

 8   you.

 9                    MR. MEADE:    You can choose the most

10   convenient means to you.

11                    THE COURT:    Okay.   On the -- I've looked

12   at the interrogatories, your objections are overruled.

13                    What else have we got?

14                    MR. MEADE:    The requests for production

15   objections that were --

16                    THE COURT:    Yeah, and they're overruled,

17   also.

18                    Anything else?

19                    MR. MEADE:    And -- nothing else unless

20   Your Honor -- and I -- and from what Your Honor said

21   earlier, I think you're not inclined to appoint a master

22   at this --

23                    THE COURT:    I'm not.

24                    MR. MEADE:    -- point in the discovery.

25   So, I won't --

                            DARLENE STEIN
Exhibit B                                                      Page 32
                                           Motion to Compel
                                                              25

 1                   THE COURT:    And we will reset --

 2                   MR. MEADE:    -- belabor the point.

 3                   THE COURT:    -- the motion for change of

 4   venue until after the deposition.

 5                   MR. MEADE:    Thank you, Your Honor.

 6   Nothing else today.

 7                   THE COURT:    Anything else?

 8                   MR. MOSSER:   No, Your Honor.

 9                   THE COURT:    Counsel, I hope you feel

10   better.   I know --

11                   MR. MOSSER:   Thank you very much, Judge.

12                   THE COURT:    I know how it feels to get

13   older, but...

14                   MR. MOSSER:   I appreciate it, Judge.

15                   THE COURT:    Okay.   Thank you.

16                   MR. MOSSER:   Yes, ma'am.

17                   MR. MEADE:    Thank you.   Have a good week,

18   Your Honor.

19                   THE COURT:    Thank you.

20                   (Proceedings concluded.)

21

22

23

24

25

                           DARLENE STEIN
Exhibit B                                                     Page 33
                                       Motion to Compel
                                                            26

 1   STATE OF TEXAS

 2   COUNTY OF HARRIS

 3          I, DARLENE STEIN, Official Court Reporter in and

 4   for the 133rd District Court of Harris, State of

 5   Texas, do hereby certify that the above and foregoing

 6   contains a true and correct transcription of all

 7   portions of evidence and other proceedings requested

 8   in writing by counsel for the parties to be included

 9   in this volume of the Reporter's Record in the

10   above-styled and numbered cause, all of which

11   occurred in open court or in chambers and were

12   reported by me.

13          I further certify that this Reporter's Record of

14   the proceedings truly and correctly reflects the

15   exhibits, if any, offered by the respective parties.

16          I further certify that the total cost for the

17   preparation of this Reporter's Record is $312.00 and

18   was paid by Mr. Andrew Meade.

19
                               /s/Darlene Stein_________
20                             DARLENE STEIN, CSR
                               Texas CSR 2557
21                             Official Court Reporter
                               133rd District Court
22                             Harris County, Texas
                               201 Caroline, 11th Floor
23                             Houston, Texas 77002
                               Telephone: (713) 368-6402
24                             Expiration: 12/31/2014

25

                            DARLENE STEIN
Exhibit B                                                   Page 34
From:MOSSER HILL PLLC                              8172 267 5072                             07/12/2014 10:39                       1235 P.001/001




                1 '11 n DALLAS   PARKWAY, SLTTfE   29() • D:\LLAS,   TEXA.S   :.)2.'18 • 9':::-- 33-3223 • FAX   ~P2-26"7 -)(Y-;2
                                                           1\IOSSERLAW.COM



                                                          July 12, 2014

         Via Facsimlile: 832-476-5460
         Kelly Stephens
         P.O. Box 79734
         Houston, Texas 77279

         RE: Los Cucos VIII, Inc. Et al., v. B650 Frisco LLC, et al.

         Dear Mr. Stephens:

         Apparently my prior letter was too subtle, I will try to be more blunt.

         There is no "currently scheduled August 1, 2014 inspection" because you have failed to
         serve a proper request pursuant to the rules.

         We have never been served with an order from the court to produce documents. To the
         extent our objections were overruled, you are in possession of the responsive
         documents

         I will not withdraw my objection to your improper subpoena. To the extent Mr. Verucchi
         has documents, you have those documents in your possession.


         Respectfully, MoSSER LA.W PLLC~




         /s/ Nicholas D. Mosser
         Nicholas D. Mosser




      Exhibit B
                                                       Exhibit 2                                                              Page 35
                                                                                             611112014 2:07:32 PM
                                                                                             Chris Daniel -District Clerk
                                                                                             Harris County
                                                                                             Envelope No: 1510270
                                                                                             By: ARRIAGA, AMANDA R

                                                Cause No. 2014-10896

      LOS CUCOS MEXICAN CAFE VIII,
      fNC.; LOS CUCOS MEXICAN CAFE IV,                      §
                                                             §                 IN THE DISTRICT COURT OF                f2
      fNC.; MANUEL CABRERA; AND
      SERGIO CABRERA,
                                                            §
                                                            §
                                                                                                             1 (lfA.D)(
                                                                                                               STP~)'
                                                            §
                                 Plaintiffs,                §
                                                            §
      v.                                                    §
                                                            §
      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



                      ORDER ON DEFENDANTS' MOTd~TO STAY ALL MATTERS
                                                             ~~

                                   PLAINTIFFS'     THII~>TION 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 <on"oted to ven;~arris Coun~s. -
                   IT IS FURTHER ORDERED that failure to         compl;~Q this Order may result in the
           further imposition of sanctions or a holding of contempt, ~hable by fin~ or imprisonment or                  -

         both. ;{J__o_ c\~ ~ &~MJ!~r:J1/r
       o.* t;:cop.JU .        ~   v---1'
                                                              a
                                                                  o

                                                                  ~
           DATED:    1-- J- <(- d!J)J/
                                                          ~
                                                       @


                                              0
                                                 ~
                                             ~~
                                      ug
                                    ~
                                  0~

                         ~g
                             ~
                     ~




     Exhibit B                                                                                                Page 37
                                                                               3/30/2015 4 07 31 PM
                                                                               Chr1s Damel - D1stnct Clerk
                                                                               Hams County
                                                                               Envelope No 4698208
                                                                               By GENTRY, EUNIECY M
                                                                               Fsled 3/30/2015 4 07 31 PM
                                           CAUSE NO 2014-10896

     LOS CUCOS MEXICAN CAFE VIII,                     §      IN THE DIS1 RICT COURT OF
     INC , LOS CUCOS MEXICAN                          §

                                                                                      ~     jj)x
     CAFE IV, INC , MANUEL                            §
     CABRERA, and SERGIO                              §
     CABRERA,
                Plflmtiffs
                                                      §
                                                      ~
                                                      ~
                                                                                   * aPtPK
     v                                                §
                                                      §                     ~=~r#i
                                                             HARRIS COUN 1 ~XAS
     8650 FRISCO, LLC D/B/A ESTILO                    ~
     GAUCHO BRAZILIAN                                 §                     ~
     STEAKHOUSE, MANDONA, LLC,
     GALOVELHO, LLC, BAH1 CIIE,
     LLC, CLAUDIO NUNES, and
                                                      §
                                                      §
                                                      §
                                                                     #
                                                                    Q~
     DAVJD JEIEL RODRIGUES,                           §
                    DefendalltY                       §      133r~DICIAL DISTRICT
                     OROER GRANTING IN J>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<f!2                  ,2015

                                       a~                               ~c-k9J
                                ug~~
                        o~ry;
                             (~
                     ~0
                 ~
                  ~




                                                       2




Exhibit B                                                                                    Page 40
HAWASHM EA DE
HAW ASH MEADE GASTON NEESE & CICACK LLP
                                                                                         Samuel B. Haren
                                                                                      sharen@hmgnc.com
                                                                                     713-658-9001 (phone)
                                                                                        713-658-9011 (fax)

                                            April30, 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 VIII, Inc. et al. v. 8650 Frisco, LLC et
               al. in the 133rd Judicial District Court of Ranis County, Texas

Dear Mr. Mosser:

        As you aware, the Comt granted Plaintiffs' Third Motion to Enforce the Court's Order and For
Sanctions on April 27, 2015. In so doing, the Comt ordered you and your client to (1) hand-deliver the
requested documents to the offices ofHawash Meade Gaston Neese & Cicack LLP and (2) pay a $1,000
sanction to Plaintiffs. The Comt fmther ordered that, "should Defendants fail to comply with this order
within forty-eight hours of the signature hereof, Defendants and their attorneys of record will be asked
to personally appear and show cause as to why they should not be held in contempt ofthis Court."

       As of the transmission hereof, neither the document production nor the monetary sanction have
been received. If we have not received the documents and payment by noon on Monday, May 4, 2015,
we will be forced to file a fomth motion to enforce the Court's order and seek additional sanctions.

                                                Yours truly,




                         2118 Smith Street 1 Houston, Texas 77002
                 Main Phone: (713) 658-9001 I Main Facsimile: (713) 658-9011
   Exhibit B
                                           Exhibit 6
                                      www. hmgll p . com                                 Page 41
MOSSER LAW PLLC
       2805 DALLAS PARKWAY, SUITE 222 • PLANO, TEXAS 75093 • 972-733-3223 • FAX: 469-626-1073
                                           MOSSER LAW .COM


                                          May 1, 2015

Via eFile
Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460
kstephens@stephensdominitz.com

RE: Los Cucos VIII, Inc. Et al., v. 8650 Frisco LLC, et al.

Dear Mr. Stephens:

We are in receipt of Mr. Haren’s letter dated April 30, 2015. W e have been served no
signed orders of any court requiring date certain compliance or any other required
action.

Respectfully, MOSSER LAW PLLC

/s/ Nicholas D. Mosser
Nicholas D. Mosser




Exhibit B
                                        Exhibit 7                                         Page 42
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 B
                                          Exhibit 8                                     Page 43
                                         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                                                                                     Page 44
    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<f!2                  ,2015

                                       a~                               ~c-k9J
                                ug~~
                        o~ry;
                             (~
                     ~0
                 ~
                  ~




                                                       2




Exhibit B                                                                                    Page 45
                                     Cause No. 2014-10896

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

 v.                                                          Harris County, Texas

 8650 Frisco, LLC d/b/a Estilo Gaucho
 Brazilian Steakhouse; Mandona,
 LLC; Galovelho, LLC; Bahtche,
 LLC; Claudio Nunes; and David Jeiel
 Rodrigues,                                                 133rd Judicial District
 Defendant


                                       Notice of Hearing

       Please be advised that the Court will hold an oral hearing on Plaintiffs’ Fourth Motion to

Enforce the Court’s Order and for Sanctions on Monday, May 18, 2015, at 3:00 p.m., in the 133rd

Judicial District Court of Harris County, Texas.

                                                           Respectfully submitted,

                                                           Hawash Meade Gaston
                                                           Neese & Cicack LLP

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




Exhibit B                                                                              Page 46
                Stephens & Domnitz, PLLC

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

                Cox Smith Matthews Incorporated

                David Kinder
                State Bar No. 11432550
                112 East Pecan Street, Suite 1800
                San Antonio, Texas 78205
                210-554-5500 (phone)
                210-226-8395 (fax)

                Attorneys for Plaintiffs




            2
Exhibit B                                  Page 47
                                     Certificate of Service

       A true and correct copy of the foregoing has been served on all counsel of record via

electronic service on May 4, 2015.

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

                                                              /s/ Samuel B. Haren
                                                              Samuel B. Haren




                                               3
Exhibit B                                                                           Page 48
                                       Cause No. 2014-10896

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

 v.                                                            Harris County, Texas

 8650 Frisco, LLC d/b/a Estilo Gaucho
 Brazilian Steakhouse; Mandona,
 LLC; Galovelho, LLC; Bahtche,
 LLC; Claudio Nunes; and David Jeiel
 Rodrigues,                                                   133rd 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

decided to GRANT the Motion.

       The Court finds that

           Defendants and their counsel have wasted substantial amounts of the Court’s and

            Plaintiffs’ time by filing frivolous motions, making bad-faith arguments, and feigning

            ignorance of basic factual and legal issues;

           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;

           Defendants’ counsel has acted unprofessionally to the Court, the Court’s staff, and

            Plaintiffs’ counsel throughout this litigation;

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




Exhibit B                                                                                Page 49
          Defendants did not comply with this Court’s order even after sanctions were entered

           and a show cause order was threatened.

       The Court hereby imposes the following sanctions:

          Defendants shall pay a sanction of $_________ to 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 entry of this order.

          James Mosser, Nicholas Mosser, Claudio Nunes, and David Jeiel Rodrigues shall

           appear in this Court on the ____ day of _____________________, 2015 at __:____

           __.m. and show cause as to why they should not be held in contempt.

          Defendants shall not be entitled to conduct or participate in any further discovery in

           this case.

       This order does not replace or supplant the Court’s April 27, 2015 Order Granting

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

remain in force.

       Signed at __:____ __.m. on the _____ day of _______________________, 2015.




                                      Judge Presiding




                                                2
Exhibit B                                                                             Page 50
