                                                                                 ACCEPTED
                                                                             04-15-00315-CV
                                                                 FOURTH COURT OF APPEALS
                                                                      SAN ANTONIO, TEXAS
                                                                        5/20/2015 1:28:52 PM
                                                                              KEITH HOTTLE
                                                                                      CLERK

                        04-15-00315-CV
              NO._____________________________

                 IN THE COURT OF APPEALS FOR
                 THE FOURTH DISTRICT OF TEXAS
                    SITTING AT SAN ANTONIO


                            CEARTH FAIRE,
                                                 Petitioner,

                                  v.

        FMP SA MANAGEMENT GROUP, LLC d/b/a
   FOOD MANAGEMENT PARTNERS, LLC, ALL JONES, LLC
   ALLEN J. JONES, INDIVIDUALLY, PETER DONBAVAND,
INDIVIDUALLY, AND JASON KEMP, INDIVIDUALLY,

                                                 Respondents.


                  Cause No. 2014-CI-16674 from the
               150th District Court, Bexar County, Texas
                   Hon . Antonia Arteaga, presiding


   Petition for Leave to File Interlocutory Appeal Pursuant to
  Tex. R. App. P. 28.3 and Tex. Civ. Prac. & Rem. Code 51.014(f)


Olga Brown                             Jeff Small
State Bar No. 03155500                 State Bar No. 00793027
LAW OFFICE OF OLGA BROWN               LAW OFFICE OF JEFF SMALL
111 Soledad, Suite 1725                12451 Starcrest, Suite 100
San Antonio, Texas 78205               San Antonio, Texas 78216
210.226.1550/210.226.1884              210.496.0611/f: 210.579.1399
argyle2@sbcglobal.net                  jdslaw@satx.rr.com
                                    TABLE OF CONTENTS

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

        Issue No. 1:              Does permitting an interlocutory appeal now serve the
                                  best interests of judicial economy thereby eliminating
                                  the risk of two trials by deciding the propriety of the
                                  trial court’s Rule of Civil Procedure 91a dismissal of
                                  several of Petitioner’s causes of action before the
                                  remaining issues go to trial? . . . . . . . . . . . . . . . . . . vi

        Issue No. 2:              Is dismissal under Rule 91a proper when Petitioner’s
                                  causes of action state a recognized cause of action and
                                  her factual pleadings do not show as a matter of law
                                  that she cannot prevail? . . . . . . . . . . . . . . . . . . . . . . vi

INFORMATION COMPLYING WITH RULE 25.1(d). . . . . . . . . . . . . . . . . . vi

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

REASONS TO GRANT PERMISSION
FOR AN INTERLOCUTORY APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

        The trial court erred by dismissing Petitioner’s causes of action because
        each states a recognized cause of action in Texas and none of her factual
        pleadings affirmatively negate her entitlement to relief... . . . . . . . . . 5

                 A.      Texas Rule of Civil Procedure 91a. . . . . . . . . . . . . . . . . . . 5

                 B.      There is “no basis in law” only if the pleading fails to state a
                         recognized cause of action.. . . . . . . . . . . . . . . . . . . . . . . . . . 7

                 C.      A pleading has “no basis in fact” only if no reasonable
                         person could believe the facts pleaded.. . . . . . . . . . . . . . . . 7

                                                       ii
CONCLUSION and PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

VERIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                        iii
                                  INDEX OF AUTHORITIES

Cases

Bell Atl. Corp. v. Twombly,
      550 U.S. 544 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

City of Keller v. Wilson,
      168 S.W.3d 802 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Drake v. Walker,
     No. 05-14-0355-CV, 2015 Tex. App. LEXIS 4732
     (Tex. App.— Dallas May 8, 2015, no pet. h.). . . . . . . . . . . . . . . . . . . . . 5

GoDaddy.com, LLC v. Hollie Toups ,
    429 S.W.3d 752 (Tex. App.— Beaumont 2014, pet. denied) . . . . . . . 8

Gulley v. State Farm Lloyds,
     350 S.W.3d 204 (Tex. App.-- San Antonio 2011, no pet.) .. . . . . . . . . 4

Scott v. Gallagher,
      209 S.W.3d 262 (Tex. App.— Houston [1st Dist.] 2006, no pet.).. . . . 7

Wooley v. Schaffer,
    447 S.W.3d 71 (Tex. App.— Houston [14th Dist.] 2014, pet. filed).. . 5

Rules

TEX. R. APP. P. 25.1(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

TEX. R. APP. P. 28.3(k). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

TEX. R. CIV. P. 47 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. R. CIV. P. 91a.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8

TEX. R. CIV. P. 91a.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6



                                                       iv
TEX. R. CIV. P. 91a.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. R. CIV. P. 91a.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. R. CIV. P. 91a, cmt. to 2013 change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Other Authorities

David E. Chamberlain and W. Bradley Parker,
     Rule 91a Motions to Dismiss,
     in State Bar of Texas Ultimate
     Motions Practice Course (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

House Comm. on Civil Practices, Bill Analysis,
    Tex. H.B. 978, 77th Leg., R.S. (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                        v
                           ISSUES PRESENTED

Issue No. 1:      Does permitting an interlocutory appeal now serve the best
                  interests of judicial economy thereby eliminating the risk of
                  two trials by deciding the propriety of the trial court’s Rule
                  of Civil Procedure 91a dismissal of several of Petitioner’s
                  causes of action before the remaining issues go to trial?

Issue No. 2:      Is dismissal under Rule 91a proper when Petitioner’s causes
                  of action state a recognized cause of action and her factual
                  pleadings do not show as a matter of law that she cannot
                  prevail?

         INFORMATION COMPLYING WITH RULE 25.1(d)

      Plaintiff/Appellant Cearth Faire desires to pursue an interlocutory

appeal in accordance with the provisions of Texas Rule of Appellate Procedure

28.3 and the Texas Civil Practice and Remedies Code section 51.014(f). The

order being appealed dated May 6, 2015 (ORDER GRANTING DEFENDANTS’ FIRST

AMENDED RULE 91A PARTIAL MOTION TO DISMISS (App’x Tab 1)), overruled Ms.

Faire’s Motion for Reconsideration/New Trial in cause number 2014-CI-

16674, which dismissed certain of Ms. Faire’s causes of action pursuant to

Rule 91a. If the Court grants leave to file an interlocutory appeal pursuant to

TEX. R. APP. P. 28.3(k), that appeal is treated as accelerated in accordance with

Rule 26.1(b).




                                       vi
                         STATEMENT OF FACTS

        The facts stated herein are those as alleged in Plaintiff’s Fourth

Amended Petition (App’x Tab 3).

        Defendants/ Appellants FMP SA Management Group, LLC, d/b/a Food

Management Partners, LLC and All Jones, LLC, all of which are owned and

controlled by Defendant Allen Jones, employed Plaintiff/Appellant Faire.

Defendants Peter Donbavand and Jason Kemp are business partners of Allen

Jones. In addition to her employment for the corporate defendants, Ms. Faire

also served as Defendant/Appellant Allen J. Jones personal assistant. As his

personal assistant, Ms. Faire took care of Allen Jones' personal matters. She

lived in the Dominican Republic caring for Jones’ children on a 24/7 basis for

approximately five months, also assisting administratively in his defense in

Jones’ divorce proceedings pending in Bexar County, Texas during 2013 and

2014.

        In recognition for her loyal and tireless employment services to him,

Jones gifted Ms. Faire the house at 8647 Timber Place in San Antonio. Jones

negotiated with Defendant Jason Kemp, who works for Jones, and purchased

the home at 8647 Timber Pl, San Antonio, TX 78250, from Kemp’s wife who

was the deeded owner of that property. It was this property that Jones gifted



                                       1
to Ms. Faire. Jones instructed another employee, Peter Donbavand, in his

individual capacity and outside the scope of corporate business, to prepare the

necessary documents so Jones could finalize the gift to Ms. Faire. Jones later

retaliated against Ms. Faire by denying he had gifted the real estate to her.

      Both defendants Donbavand and Kemp, while business partners of

Jones and employees and agents of FMP, routinely served Jones as personal

aides, taking and executing orders from Jones outside the course and scope

of their duties with the corporate entities to meet his personal demands

without regard for whether those orders served the corporate interests.

      While Donbavand completed the necessary transfer documents, Jones

insisted that Ms. Faire move into the house, which she did in reliance on his

gift of the house to her. She made valuable and permanent improvements to

the house in reliance on Defendant Jones’ promise to her. She also incurred

moving expenses, as well as expenses in making permanent improvements to

the residence to make it habitable.

      When Ms. Faire refused Jones’ sexual advances, he fired her despite

having recently promoted her, given her additional duties, and increased her

pay based on meritorious work. Jones then ordered Donbavand and Jason

Kemp to evict Ms. Faire from the house Jones had given her. Jones also



                                       2
reneged on other promises he had made to Ms. Faire.

      Ms. Faire sued for sexual harassment, conspiracy, promissory estoppel,

and fraud. Defendants filed a Rule 91a motion and an amended motion to

dismiss (DEFENDANTS’ FIRST AMENDED RULE 91A PARTIAL MOTION TO DISMISS

(App’x Tab 2)). After Defendants filed their amended motion to dismiss, but

before the hearing at which the causes of action were dismissed, Ms. Faire

amended her petition to drop the claim for promissory estoppel and added a

claim for an oral gift of real estate. See PLAINTIFF’S FOURTH AMENDED PETITION

(App’x Tab 3).Defendants filed no further amended pleadings until after the

motion to dismiss had been heard, belatedly asking for the opportunity to

present evidence of reasonable and necessary attorneys’ fees.

      The trial court overruled Ms. Faire’s motion to reconsider the dismissal

of her causes of action on May 6, 2015. ORDER GRANTING DEFENDANTS’ FIRST

AMENDED RULE 91A PARTIAL MOTION TO DISMISS DTD MAY 6, 2015 (App’x Tab

1);ORDER GRANTING DEFENDANTS’ FIRST AMENDED RULE 91A PARTIAL MOTION

TO DISMISS   dtd April 9, 2015 (App’x Tab 2).




                                       3
                     REASONS TO GRANT PERMISSION
                     FOR AN INTERLOCUTORY APPEAL

       This Court should grant leave for an interlocutory appeal because Rule

91a is relatively new1 and, thus, there is not a great deal of case law to guide its

interpretation. Permitting an interlocutory appeal at this point in the case will

serve the interests of judicial economy and advance the ultimate termination

of the litigation in that the question at hand involves a controlling question of

law. This is so because an appeal at this juncture will eliminate the potential

for two trials if the trial court’s Rule 91a dismissal of several of

Plaintiff/Appellant’s causes of action was, indeed, erroneous. See Gulley v.

State Farm Lloyds, 350 S.W.3d 204, 207-08 (Tex. App.— San Antonio 2011,

no pet.) (citing House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 978,

77th Leg., R.S. (2001) (explaining that the addition of subsection (d) would

promote judicial efficiency by “allowing the trial court to certify a question for

appeal” when “the trial court rules on an issue that is pivotal in a case but

about which there is legitimate disagreement”)).




      1
          Adopted by the Supreme Court of Texas February 12, 2013.

See TEX. R. CIV. P. 91a, cmt. to 2013 change

                                               4
                                   ARGUMENT

The trial court erred by dismissing Petitioner’s causes of action
because each states a recognized cause of action in Texas and none
of her factual pleadings affirmatively negate her entitlement to
relief.

      A.    Standard of Review

      A trial court’s ruling on a Rule 91a motion to dismiss — whether there

is a basis in law and a basis in fact — is reviewed de novo; the pleadings are

construed liberally in favor of the plaintiff, looking to the pleader’s intent; and

the factual allegations in the pleadings are accepted as true. Wooley v.

Schaffer, 447 S.W.3d 71, 74 (Tex. App.— Houston [14th Dist.] 2014, pet. filed)

(analogizing 91a dismissal motion to plea to the jurisdiction); see Drake v.

Walker, No. 05-14-0355-CV, 2015 Tex. App. LEXIS 4732, at *7 (Tex. App.—

Dallas May 8, 2015, no pet. h.).

      A.    Texas Rule of Civil Procedure 91a

      Rule 91a permits the dismissal of only those causes of action that have

“no basis in law or fact.” TEX. R. CIV. P. 91a.1. “A cause of action has no basis

in law if the allegations, taken as true, together with the inferences reasonably

drawn from them, do not entitle the claimant to the relief sought. A cause of

action has no basis in fact if no reasonable person could believe the facts

pleaded.” TEX. R. CIV. P. 91a.1.

                                        5
      Rule 91a specifically requires that a motion to dismiss address each

challenged cause of action and must state specifically the reason the cause of

action has no basis in law, no basis in fact, or both. TEX. R. CIV. P. 91a.2. The

court may not rule on a cause of action that has been non-suited or is not

included in the plaintiff's latest amended petition. TEX. R. CIV. P. 91a.2, 91a.5.

Further, the rule explicitly states that in determining a Rule 91a motion the

trial court is to consider only the pleadings and may NOT consider evidence.

TEX. R. CIV. P. 91a.6.

      The trial court’s dismissal here violates each of those tenets. Compare

DEFENDANTS’ FIRST AMENDED RULE 91A PARTIAL MOTION TO DISMISS (App’x

Tab 2), with PLAINTIFF’S FOURTH AMENDED ORIGINAL PETITION (App’x Tab 3).

Because the trial court dismissed issues already amended out of the pleadings

at the time of the hearing and Defendants orally requested and were granted

dismissal of a cause of action not addressed in their amended motion (See

App’x Tab 1 & App’x Tab 2) , there is a legitimate question in this case whether

the trial court's dismissal of Petitioner’s causes of action was proper. Thus,

this Court should grant permission for an interlocutory appeal of that

dismissal.




                                        6
      B. There is “no basis in law” only if the pleading fails to
      state a recognized cause of action.

      Texas “[c]ourts are likely to dismiss causes of action under Rule 91a in

three circumstances: (1) when a cause of action is not recognized by Texas law;

(2) when the pleading alleges facts that negate a cause of action; and (3) when

pleading exhibits, attached pursuant to Rule 59, demonstrate that claimant is

not entitled to the relief sought as a matter of law.” David E. Chamberlain and

W. Bradley Parker, Rule 91a Motions to Dismiss, in STATE BAR           OF   TEXAS

ULTIMATE MOTIONS PRACTICE COURSE, at § II B.1., at 4 (2013) (App’x Tab 4).

      The question presented by Rule 91a is “relatively straightforward” — Do

the pleadings state a cause of action that would entitle the plaintiff to relief?

Scott v. Gallagher, 209 S.W.3d 262, 267 (Tex. App.— Houston [1st Dist.]

2006, no pet.) (“no arguable basis in law” under Civil Practice and Remedies

Code Chapter 14 means a claim that is “indisputably meritless”). Putting it

differently, the question is “whether, as a matter of law, [the petition] state[s]

a cause of action that would authorize relief.” Id. Thus, giving the pleader the

benefit of the doubt, if a plaintiff’s petition arguably states a cause of action

recognized in the state of Texas, dismissing it under Rule 91a is error. Id.




                                        7
      C.  A pleading has “no basis in fact” only if no reasonable
      person could believe the facts pleaded.

      When analyzing a plaintiff’s petition as to whether it has a basis in fact,

a court may go no further than ascertaining whether a “reasonable person

could believe the facts pleaded.” TEX. R. CIV. P. 91a.1. A claim may be

dismissed for having “no basis in fact” when, taken as true as the pleaded facts

must be, they are legally insufficient to support plaintiff’s claim. See City of

Keller v. Wilson, 168 S.W.3d 802, 811- 17 (Tex. 2005). If the facts pleaded

satisfy Texas’s notice pleading requirements, the claim is not subject to

dismissal under Rule 91a. See TEX. R. CIV. P. 47 (a) (pleading satisfies notice

pleading requirements if it gives “fair notice of the claim involved”).

      Using the Federal Rule of Civil Procedure 12(b)(6) for guidance, the

Beaumont Court of Appeals observed that a claim will survive dismissal if the

pleader alleges “enough facts to state a claim to relief that is plausible on its

face.” GoDaddy.com, LLC v. Hollie Toups , 429 S.W.3d 752, 754 (Tex. App.—

Beaumont 2014, pet. denied) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007).

CONCLUSION and PRAYER

      Judicial efficiency will be served here by granting leave for an

interlocutory appeal rather than permitting a trial to go forward on the

                                       8
remaining issues in this cause only to have the issue of the propriety of the 91a

dismissal then come before this court and be remanded back for another trial

if the 91a dismissal is determined to be erroneous. The interests of all

concerned would be better served by abating the trial court proceedings,

permitting the interlocutory appeal to go forward, and then reinstating the

trial court proceedings after a determination has been made by this Court on

the 91a issue.

         The trial court dismissed a cause of action that had been amended out

of Petitioner’s pleadings before the hearing on the motion to dismiss;

dismissed a cause of action not addressed in Respondents’ Amended Motion

to Dismiss, and delved into evidentiary details rather than ruling strictly on

the pleadings as required by Rule 91a. All of these actions are error requiring

reversal of the trial court’s dismissal. It is better that the reversal come now

rather than after a trial on the remaining issues and then a remand for another

trial.

         Accordingly, Petitioner respectfully requests that she be permitted to

pursue an interlocutory appeal of the trial court’s dismissal of her causes of

action.




                                        9
-------------------------·--------------------------------~~~~-~-,




                                                                      Respectfully submitted,

                                                                        1s1JeffS~
       Olga Brown                                                     Jeff Small
       State Bar No, 03155500                                         State Bar No. 00793027
       LAW OFFICE OF OLGA BROWN                                       Law Office of Jeff Small
       111 Soledad, Suite 1725                                        12451 Starcrest Dr., Suite 103
       San Antonio, Texas 78205                                       San Antonio, TX 78216.2988
       210 .,226.1550/ 210,,226,,1884                                 210.496.0611/F: 210 579.1399
       argyle2@sbcglobal.net                                          jdslaw@satx.rr.com


                                         Counsel for Petitioner Cearth Faire

                                                       VERIFICATION

            Before me, the undersigned notary, on this day personally appeared
       Olga Brown, the affiant, a person whose identity is known to me. After I
       administered an oath, affiant testified as follows:

             L    "My name is Olga Brown,, I am over 18 years of age, of sound mind,
       and capable of making this verification. the facts in this verification are within
       my personal knowledge and are true and correct

             2.    I am one of the attorneys for petitioner. All the documents
       included with this petition for permission to file an interlocutory appeal are
       true copies."
                .~~;~''f'f::•,
               {R?.:Ji::J~•\
               ;~~~·.·~i
                                     RAMONA .J, FLORES
                                 Notary Public, State of Texas
                                   My Commission Expires
                                                                      ~ ~~
                                                                                  fu
                ~,~~'Of\\~           August 16, 2016
                   '""""                                              Olga Bro

       Sworn to and subscribed to before me by Olga Brown on MayJOtf;2015,



                                                                      Notary ublic, State of Texas


                                                                 JO



                                                                                                       r
                                                                                                       I
                   CERTIFICATE OF COMPLIANCE

     In compliance with Tex R. App. P 9.4(i)(3), I certify that the number of
words in this document, excluding those matters list in Rule 9.4(i)(1), which
was prepared in WordPerfect X6 using 14-point Book Antiqua, is 1893 words.


                       CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing Petition for Leave
to File Interlocutory Appeal Pursuant to Tex. R. App. P. 28.3 and Tex. Civ.
Prac. & Rem. Code 51.014(f) has been served on counsel of record/interested
parties as shown below in accordance with the Rules of Civil Procedure on
May 20, 2015.

Justin Barbour
StateBarNo. 24055142
SCHMOYER REINHARD LLP
17806 IH 10 West, Suite 400
San Antonio, Texas 78257
Phone: (210) 447-8033
Fax: (210) 447-8036
jbarbour@sr-llp.com



                                            /S/   Jeff Small




                                      11
                                      APPENDIX

Order Granting Defendants’ First Amended Rule 91a. . . . . . . . . . . . . . . Tab 1
     Partial Motion to dismiss dtd May 6, 2015
     (overruling Mtn for New Trial/Reconsideration)

Order Granting Defendants’ First Amended Rule 91a. . . . . . . . . . . . . . . Tab 2
     Partial Motion to Dismiss dtd April 9, 2015

Defendants’ First Amended Rule 91a Partial Motion to Dismiss. . . . . . Tab 3

Plaintiff’s Fourth Amended Original Petition. . . . . . . . . . . . . . . . . . . . . . Tab 4

Plaintiff’s Motion for New Trial/Reconsideration. . . . . . . . . . . . . . . . . . Tab 5

Article, David E. Chamberlain and W. Bradley Parker, . . . . . . . . . . . . . Tab 6
      Rule 91a Motions to Dismiss,
      in STATE BAR OF TEXAS ULTIMATE
      MOTIONS PRACTICE COURSE (2013)

Reporter’s Record from April 9, 2015 Dismissal Hearing. . . . . . . . . . . . Tab 7

Reporter’s Record from May 6, 2015 Reconsideration Hearing.. . . . . . Tab 8




                                             12
Tab 1
                                 CAUSE NO. 2014-CI-16674

CEARTH FAIRE,                                  §          IN IHEDISTRICTCOURI
                                               §
       Plaintiff,                              §
                                               §
v.                                             §
                                               §
FMP SA MANAGEMENT GROUP, LLC                   §          lSOIH JUDICIAL DISTRICT
d/b/a FOOD MANAGEMENT PARTNERS,                §
LLC, ALL JONES, LLC, ALLEN J.. JONES           §
INDIVIDUALLY, AND PETER                        §
DONBAV AND, INDIVIDUALLY                       §
                                               §
       Defendants..                            §          BEXAR COUNTY, TEXAS


                    ORDER GRANTlNG DEFENDANTS' FIRST AMENDED
                        RULE 9la PaRTIAL MOTION TO DISMISS


       On this date, the Co1Ut considered Plaintiff's Motion for Reconsideration/New Trial.

After cal'eful consideration of the Motion, the response thereto, arguments of cowisel, and the

relevant law, the CoUit is of the opinion that the Motion should be DENIED.

       II IS IHEREFORE ORDERED that Plaintiff's Motion for Reconsideration/New Idal is

DENIED .

..     SIGNED on this   Q,-t{?. . . day of....Jll~~~~ 2015
                                               -          ,k,~C2
                                                   PRESIDINGJUDGE
AGREED AS IO FORM:



Counsel for Plaintiff                              Counsel for Defendant




      Received Time May 6 4:48PM
Tab 2
                                  CAUSE NO . 2014-CI·-16674

 CEARTH FAIRE,                                 §           IN THE DISTRICT COURT
                                               §
        Plaintiff,                             §
                                               §
 v.                                            §
                                               §
 FMP SA MANAGEMENT GROUP, LLC                  §           150TH JUDICIAL DISTRICT
 d/b/a FOOD MANAGEMENT PARTNERS,               §
 LLC, ALL JONES, LLC, ALLEN J. JONES           §
 INDIVIDUALLY, AND PETER                       §
 DONBAVAND, INDIVIDUALLY                       §
                                               §
        Defendants..                           §          BEXAR COUNTY, TEXAS


                     ORDER GRANTING DEFENDANTS' FIRST AMENDED
                         RULE 9Ia PARTIAL MOTION TO DISMISS


        On this date, the Court considered Defendants' First Amended Rule 9la Partial Motion to

Dismiss After careful consideration of the Motion, the response thereto, arguments of counsel,

and the relevant law, the Court is of the opinion that the Motion should be GRANTED

       II IS THEREFORE ORDERED that Defendants' First Amended Rule 9la Partial Motion

to Dismiss is GRANTED.        It is further ORDERED that     Plain~ifrs   claims for promissory

estoppel, "oral gift" of real estate, and conspiracy are DISMISSED WITH PREJUDICE, and ~'\

'ficfc11dmits arc awmded tlteir 1easmrabte and necessary attorney's tees incurred With respect t(J' ~




AGREED AS IO FORM:


Counsel for Plaintiff                              Counsel for Defendant

                                          1
                     ORDER GRANTING DEFENDANTS' FIRST A.MENDED
                         RULE 91a PARTIAL MOTION IO DISMtss
                                                        '
Tab3
Feb. 3 2015    9:47AM                                                                         No 7814    P 3




                                        CAUSE NO. 2014-CI-16674

     CEARIH FAIRE,                                   §           IN THE DISTRICI COURT
                                                     §
            Plaintiff,                               §
                                                     §
     ~                                               §
                                                     §
     FMP SA MANAGEMENT GROUP, LLC                    §           150IHJUDICIALDISTRICT
     d/b/aFOOD MANAGEMENT PARTNERS,                  §
     LLC, ALL JONES, LLC, Al,LEN J. JONES            §
     INDIVIDUAlLY, AND PEIER                         §
     DONBAVAND, INDIVIDUALLY                         §
                                                     §
            Defendants..                             §           BEXAR COUNTY, TEXAS
                                                                     ____ _________
                                                                        ,..._.,..,



         DEFENDANTS' FIRST A.M}i;NDED RULE 91a PARIIAL MOTION TO DISMISS


            For their First Amended Partial Motion to Dismiss pursuant to Texas Rule of Civil

    Procedure 9la, Defendants FMP SA Management G:roup, LLC d/b/aFood Management Partners,

    All Jones, LLC, Allen J Jones, and Peter Donbavand respectfully show the following:

                           I.      INTRODUCTION & FACTUAL BACKGROUND

            Plaintiff Cearth Faire filed her 01iginal Petition in the 150th District Comt,

    Bexar County, Texas, on October 21, 2014..        Ex . I, PL's Orig. Pet..          Defendants FMP SA

    Mmagement Group, LLC d/b/a FMP Partners ("FMP"), All Jones, LLC ("All Jones"), and Peter

    Donbavand ("Donbavand") were served with the Original             P~tition        on November 7, 2014

    Defendant Allen J . Jones ("Jones") was served on November 20, 2014.. All Defendants timely

    filed their General Denial and Defenses on November 26, 2014..                   Ex., 2, Def's Answer &

    Defenses., Plaintiff filed her First Amended Petition on December S, 2014 . Ex., 3, PL's lstAm .

    Pet. Plaintiff's First Amended Petition alleged three claims for relief: (!)promissory estoppel

    regarding an alleged promise to purchase a home for her, (2) "wrongful termination," and

    (3) conversion of certain property allegedly belonging to her,


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               On December 22, 2015-well within the 60 day pe!iod prescribed by Rule 9la.3(a)-

       Defendants filed their Rule 91 a Motion to Dismiss. Through that Motion to Dismiss, Defendants

       asked the Cowt to dismiss (1) Plaintiff's wrongful termination claim as to all Defendants,

       (2) Plaintiff's promissory estoppel claim as to all Defendants, (3) all remaining claims against

       Defendant Donbavand and (4) the conversion and wrongful termination claims against

      Defendant Jones .

              In response to Defendants' Rule 9la Partial Motion to Dismiss, Plaintiff filed her Second

      and Third Amended Petitions on fanuary 28 and 30, 2015, respectively.. Ex . 4, 2d Am. Pet;

      Ex. 5, 3d Am . Pet Through these pleading amendments, Plaintiff has substantially revised the

      allegations pertaining to her promissory estoppel claim, while dropping her claims of "wrongful

      termination" and conversion      Meanwhile, Plaintiff's Third Amended Petition has added new,

      previously unasserted claims of sexual harassment, conspiracy, and fraud .

              Defendants' Rule 9la Piutial Motion to Dismiss is presently set fox heiuing on

      Februiuy 4, 2015.    In light of Plaintiff's Third Amended Petition, which amends Plaintiff's

      promissory estoppel claim, previously challenged by Defendants, and adds new claims of sexual

      harassment, conspiracy, and fraud, Defendants now file their Amended Motion to Dismiss

      pursuant to Rule 91a.5(b}.      Defendants specifically move to dismiss Plaintiff's claim for

      promissory estoppel, as her amended pleadings do not establish a legal exception to the statute of

      frauds, which bars this claim as a matter of law:. Defendants ftuther move to dismiss Plaintiff's

      claim of conspiracy, which is barred by Plaintiff's Chapter 21 's exclusive remedial framework

                                        II.     SrANDARD OF REVIEW

      A.     Rule 91a Standard ofDismissal

              Texas Rule of Civil Procedwe 9la requires dismissal of claims that have "no basis in law

      or fact" TEX. R. Crv. P 91a.J. A cause of action has no basis in law "if the allegations, taken as     r
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     true, together with inferences reasonably drawn from them, do not entitle the claimant to the

     relief sought. " Id. Meanwhile, a cause of action has no basis in fact "if no reasonable person

    could believe the facts pleaded." Id

                                      ill..   ARGUMENT     &AUJHORUIES

    A.      P/a1iztijj Fails to Show Exception to Statute of Frauds, Requiring Dismissal of
            Promissory Estoppel Claim.

            Faire asserts a claim for prnmissory estoppel based on Defendant Jones's allegedly

    "promis[ing] Plaintiflthat he would buy a home and transfer ownership to" her. Ex. 5, PL's 3d

    Am Pet at     ~   1L Defendant's First Rule 91 a Partial Motion to Dismiss generally outlines the

    manner in which the statute of frauds bars this promissory estoppel claim; however; in brief; a

    contract for the sale or purchase of real property,    01   one affecting an interest in real propexty, is

    subject to the statute of frauds. Old Tzn RoofSteakhouse, LLC v. Haskett, No . 04-12-00363, 2013

    WL 1148921, at *7 (Tex . App . -San Antonio, Mar. 20, 2013, no pet) (mem. op) (citing Tex.

    Bus . & Comm . Code§ 26.0l(a)(4)). As such, any alleged promise to purchase, sell, or iransfer a

    real property interest, such as a promise to transfer home owne1ship in this case, must satisfy the

    statuto1y prerequisites of the statute of frauds.. See, e.g, Fontenot v.. Ham.IJ; No . 11-10-00016, at

    *3 (Tex. App . -Eastland Aug. 31, 2011, pet. denied) ("agreement is            su~ject   to the Statute of

    Frauds because it relates to the conveyance of real property interests ......"). In such cases, Texas

    law specifically requires that:

                      A promise or agreement [su~ject to the statute of frauds] is not
                      enforceable unless the promise or agreement, or a memorandum of
                      it, is (1) in wxiting and (2) signed by the person to be charged with
                      the promise or agreement or by someone lawfully authorized to
                      sign for him.

   TEx. Bus . &COMM. CODE§ 26.0l(a)..



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              fo this case, Plafutiff's First Amended Petition conceded that Defendant .Jones's alleged

     promise to "buy her a house" was made 01ally and, thus, could be subject to the statute of frauds

     See Ex. 3, Pl.'s 1st Am. Pet. at if 28. To avoid dismissal of her promissoxy estoppel claim,

     Plaintiff has now amended her pleading to allege that the statute of frauds is inapplicable because

    "Defendant Jones promised he would sign the necessary documents to give Plaintiff full and

    complete ownership of the home . .,," Id. at if 24 .

              Plaintiff's amended promissory estoppel claim is nonetheless deficient, as a matter of

    law, and shouid be dismissed. ~laintiffbaldly alleges "Defendant Jones promised he would sign

    the necessary documents to give" Plaintiff ownership of the home . Ex. 5, PL's 3d Am . Pet. at if

    24. However, promissory estoppel claims only avoid "the traditional Statute of Frauds when the

    alleged   01al   promise is to sign an existing document that satisfies with the Statute of Frauds."

    Bank of Tex, NA. v. Gaubert, 286 S W..3d 546, 553 (Tex . App . -Dal!as 2009, pet denied)

    (emphasis in original). Thus, even if Plaintift's allegations were accepted as true, she has failed

    to allege Defondant Jones promised to sign existing documents capable of transferdng owuexship

    of the property at issue, nor does she specifically allege that such documents had in fact in been

    drafted at the time the promise was allegedly made.. In cases with facts and allegations like this

    one, courts have held the promissory estoppel exception to the statute of frauds is inapplicable

    and dismissed such claims with prejudice.. See id., see also Coastal Corp.. v. Atl Richfield Co,

    852 S. W.2d 714, 718 (Tex. App.-Co1pus Christi, no writ) ("Promissory estoppel is applied

    when a party promises to sign an existing written contract that would satisfy the statute of frauds,

    but for the lack of a signature.. When a document remains to be prepared, as in this case, all of

    the te1ms must ultimately be agreed to in writing") (emphasis in original).. Because Plaintiff's




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     promisso1y estoppel allegations, accepted as true, do not establish this exception to the stature of

     frauds, Plaintiff's claim must be dismissed with prejudice,,

    B,      Plaintiff's Conspiracy Claim Barred by Intra-Corporate Immunity Doctrine.,

            l'laintiffs Second and Third Amended Petitions allege, for the first time in this matter, a

    conspiracy claim against Defendant Donbavand and Jones,            This claim specifically alleges

    Donbavand "acted with intent to assist" other Defendants in "wrongful acts toward Plaintiff;

    including the discriminatory practices perpetrated,'' Ex, 5, 3d Am, Pet at    mf 35c37,   Plaintiff's

    live pleading concedes that Donbavand is "a business partner of Defendant Jones," and that

    DefondantJones is President & CEO ofDefendantFMP, Id. at mf 16, 27,

            Plaintiff's conspiiacy claim is barred, as a matter of law, because it is alleged against

    Defendants Donbavand and Jones, who are both agents of Defendant FMP Indeed, by naming

    FMP as a Defendant in this lawsuit, Plaintiff has herself alleged that Ponbavand's and Jones's

    alleged acts were not made in their individual capacities but, instead, committed in the comse

    and scope of their agency with that corporate entity, ''Employees or agents of a pdncipal acting

    within the CO\U'Se and scope of their employment or agency relationship cannot enter mto a

    conspiracy with each other so long as they are not acting outside their capacity as an employee or

    agent , " Crouch v Trinque, 262 S,,W3d 417, 427 (Tex, App,,-Eastland 2008, no pet); see also

    Atl. Richfield Co v, Misty Prods,, Inc, 820 S,W,2d 414, 420-21 (Tex,, App-Houston [141h Dist.]

    1991, writ denied) ("An employee or agent of the parent co1po1ation and an employee or agent

    of the wholly owned subsidiary , , . cannot conspire"),, Because Donbavand and Jones, both

    agents of FMP, were incapable, as a matter of law, from conspiring with one anothe1; Plaintiff's

    conspiracy claim should be dismissed with prejudice




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     C           Plaintiff's Conspiracy Claim Barred by Exclusive Statutory Remedies:.

                 1.     State Law Claims "Entwined" with Statutory Claims are Preempted as a
                        Matter of Law.

                 Chapter 21 of the Texas Labor Code is designed to be the exclusive means by which a

     party can vindicate her statutory rights as it pertains to unlawful harassment or discrimination.

     Wheatfall v. Potter, No. 07-1937, 2010 WL 2854284, "'4 (SD. Tex July 19, 2010) (federal anti-

     discrimination statutes, such as Title VII, 1 "provide the exclusive, pre-emptive administrative

     and judicial scheme for the redress of federal employment discrimination").. As a result, a

     claimant's statutory harassment and discrimination claims are preemptive when the complained-

     of conduct is entwined with the underlying complained-of discriminatory or retaliatory conduct.

    See Mosley v. Wal-Mart Stores Tex. LLC, No 3:10-cv·-2305, 2011 WL 2893086, *3 (ND . Tex .

    July 20, 2011).. As the Mosley court explains, when:

                       the gravamen of a plaintiff's case is fox sexual harassment, the
                       plaintiff must proceed solely under a statutory claim unless there
                       are additional facts, unrelated to sexual harassment, to support an
                       independent to1t claim . .... allowing [tort] damages for a TCHRA
                       violation would eclipse the Legislature's prescribed scheme.

    Id In other words, Texas state common law conspiracy claims are preempted whenever they are

    "entwined" with or arise from the same facts suppolting a statutory discrimination claim., In

    such situations, the preempted claims must be dismissed as a matter of course, with the claimant

    left solely to rely upon the exclusive, statutory remedial scheme provided by the Texas

    Legislature .




             1
             The express purpose of Chapter 21 is "to provide for the execution of the policies of Title VII of the Civil
    Rights Act of 1964 . ," De Sanriago" Wesi Tex. Comm Supervision & Corrections Dept., 203 S..W.3d 387, 391
    (Tex. App. -EI Paso 2006, no pet}. "In light of tills express pmpose, we look ro analogous federal precedent when
    interpreting the Texas Act" Id


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            2..        Plaintiff's Conspitacy Claitn Relies on Satne Under·lying Facts as Statutory
                       Chapter· 21 Claitns, RequiJ'ing Their Dismissal.

            In this case, Faire's conspiracy claim is not in any way factually distinct from he!'

    Chaptex 21 sexual hruassment and discrimination claims.            Jn fact, Faixe's Third Amended

    Petition unambiguously alleges that her conspixacy claim is p1emised on the same factual

    allegations supporting hex Chapter 21 claims. See Ex. 5, 3d Am . Pet. at          ifif   36-37 (alleging

    "Defendant Donbavand            acted with intent to assist Defendant Jones in discrimmatory

    practices perpetrated against Plaintiff ..... "}. Stated differently; Faix e's Third Amended Petition

    is devoid of any specific factual allegations related specifically and only to her conspiracy claim.

    In the absence of specific, distinct factual allegations, this Court can only conclude that Faire's

    conspirncy claim is "entwined" with her statutory harnssment and discrimination retaliation

    claims . As a r·esult, Faire's statutory claixns provide her exclusive remedy, preempt her common

    law conspiracy claixn, and that claim should be dismissed with prejudice.

                                      IV:.   CONCLUSION & PRAYER

            Plaintiff's claims in this mattex are, by and large, legally baseless and factually deficient.

    Fix st, Plaintiff's claims fol' promissoxy estoppel are baxred by the statute of frauds, as they are

    premised upon an oral and unwritten promise to effect the transfer of title to real estate.

    Furthermore, Plaintiff has failed to establish any exception to the Statute of Frauds, as a matter of

    law. Second, Plaintiff's conspiracy claim against Defendants is barred by the doctrine of intra-

    corporate immunity.. Finally, Plaintiff's conspiracy claim is barred by her exclusive statutory

    remedies afforded by Chapter 21.. As such, Defendants pray the Court dismiss these claims with

    prejudice pw·suant to Texas Rule of Civil Procedure 91a and for all other relief to which they

    may be entitled.


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                                                    Respectfully submitted,



                                                    Chi:istine E. R~inhard ' · · ·.
                                                    State Bar No. 24013389
                                                    Shannon B. Schmoyer
                                                    State B8l No. 17780250
                                                    Justin Bai:bour
                                                    StateBarNo. 24055142
                                                    SCHMOYER REINHARD LLP
                                                     17806 IH 10 West, Suite 400
                                                    San Antonio, Texas 78257
                                                    Phone: (210) 447-8033
                                                    Fax: (210) 447-8036
                                                    creinhard@,sr-llp.com
                                                    sschmoye1@,s1cllp.com
                                                    jbarbour@sr-Ilp.com

                                                  ATTORNEYS FOR DEFENDANTS FMP SA
                                                  MANAGEMENT GROUP, LLC, D/B/A
                                                  FOOD MANAGEMENT PARTNERS, LLC,
                                                  ALL JONES, LLC, ALLEN J, JONES, AND
                                                  PETER DONBAVAND


                                               FIAT

           The foregoing Amended Rule 9la Partial Motion to Dismiss is hereby set for hearing at

    8::30 a..m. on Mru:ch 18, 2015 in the Presiding District Cou1t, Bexar County Courthouse,

    San Antonio, Texas.

           Signed on this _ _ _ day ofFebiuary, 2015.




                                                 JUDGE PRESIDING




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                                      CERTlFICATE OF SERVICE

              I hereby certify that a copy of the foregoing document was served via electronic service,
      facsimile and certified mail, return receipt requested, to:

                                                Olga Brown
                                         Law Office of Olga Brown
                                           111 Soledad, Suite 1725
                                          San Antonio, Iexas 78205
                                         (210) 226-1884 (facsimile)
                                           argyle2@sbcglobal.net

      on this 3xd day ofFebxwuy, 2015.
                                                                      /)~¥'.?..a~
                                                              (fe~'
                                                          Christine E. Reinhard




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         EXHIBIT 1


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FILED        ,
10121/2014 4:04:2j PM                                                                   4 CITS PPS W/JD • SAC2
Donn• Kay McKinney
BeXar County District Clerf<
Accepted   By~   Marc Garcia

                                             CAUSE         NO. 2014~!16674

                    CEARTH FAIRE                                        §                                     IN THE DISTRICT
                    Plaintiff                                           §
                                                                        §
                    v.                                                  §
                                                                        §     15QTH                 JUDICIAL DISTRICT
                    FMP SA MANAGEMENT GROUP,                            §
                    LLC, D/B/A FOOD MANAGEMENT                          §
                    PARTNERS, LLC,                                      §
                    ALL JONES, LLC, Al LEN J JONES,
                    INDIVIDUALLY, AND
                    PETER DONBAVAND,                                    §
                    INDIVIDUALLY                                        §
                                                                        §
                    Defendants                                          §           BEXAR COUNTY, TEXAS


                                             PLAINTIFF'S ORIGINAL PETITION &
                                               REQUEST FOR DISCLOSURE

                           Plaintiff, Cearth Faire, files this original petition and request for disclosure

                 against defendants, Fmp Sa Management Group, LLC, D/B/A Food Management

                  Partners, LLC, All Jones, LLC, Allen J Jones, and Peter Donbavand, and alleges as

                 follows:


                                                DISCOVERY-CONTROL PLAN

                           L Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil

                 Prnced11re 190 4 and affirmatively pleads that this snit is not governed                                                            by the

                 expedited-actions process in Texas Rule of Civil Procedure 169 because she may

                 seek Injunctive relief..


                                                                 CLAIM FOR RELIEF

                     2..    Plaintiff seeks monetary relief over $200,000 . 00 but not more than

                 $3,000,000 .. QO .

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                                           '· ~· '··:'   '.




                                           PARllES

    3..   Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place,

San Antonio, TX 78250 .


    4..   Defendant    FMP    SA   MANAGEMENT                 GROUP,   LL.C,   D/B/A   FOOD

MANAGEMENT PARTNERS, LLC is an active lexas Lirnit.ed Liability Company

conducting business in the State of Texas, and may be served by and through its

registered agen,t for service of process, Peter Donbavand, 120 Chula Vista, Hollywood

Park, Texas 78232 .


    5..        Defendant ALL JONES, LLC is an active Texas Limited Liability

Company conducting business in the Sfate of Texas, and may be served by and

through its registered agent for service of process, Peter Donbavand, 120 Chula Vista,

Hollywood Park, Texas 78232.

    6..        Defendant Allen J Jones, is an individual whose address is 73 l.a

Escalera, San Antonio, Texas 78261

    7..        Defendant Peter Donbavand, is an individual whose business address

is, Food Management Partners, l.L.G 120 Chula Vista, San Antonio, TX 78232



                                       JURISDICTION


    8.    The Court has subject-matter jurisdictjon over the lawsuit because the amount

in controversy exceeds this Court's minimum jurisdictional requirements.




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                                                                                              r
                                              VENUE

    9..    Venue is proper in Bexar County as all or a substantial part of the events or

 omissions giving rise to the claim occurred in Bexar County.


                                              FACTS


    10..        Plaintiff Faire was an employee of Defendants, as well as a personal

assistant to Defendant Jones. Plaintiff, in addition to working for Defendants'

businesses, also took care of Defendant Jones' personal matters, including living in

the Dominican Republic for over five months on a 24/7 basis assisting in his defense

in a family law matter.

   11..         Defendant Jones in recognition for her loyal and tireless services

assumed the role of her benefactor .. In his role as a benefactor Defendant Jones

promised Plaintiff that he would buy her a home so she would never have worries

about a residence. Defendant Jones developed a scheme for the purchase of the

house that included an authorization that Plaintiffs pay scale would be increased to

cover the house payments . Defendant Jones intended to hide the gift from the other

Defendants named in this lawsuit. Defendants have a real estate department as part
                          ---,----------·---·--'---                       ··------------
of their businesses.

   12..        Although Defendant Jones intended to disguise the gift of the ~esidence

from his business partners, nevertheless he authorized for the necessary real estate

transactions to be initiated that would result in a purchase transaction with Piaintiff as

the owner. Plaintiff relied on Defendant Jones' promise and she moved into the

residence at 8647 Timber Place, San Antonio, Texas 78250 .




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                              13..         Plalntiff incurred moving expenses as well as expenses in making

                     repairs to the residence to make it habitable. The residence is still in need of

                     significant repairs . An inspectisin was ordered by the defendants as further proof of

                     Defendant Jones' promise of the gift Further, in reliance that the home would be

                     given to her, Plaintiff agreed to sign a one-month lease .



                              14..         Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent

                     promotion based on meritorious work .. Defendant Jones has also conspired with the

                     other defendants including Defendant Peter Donabavand to evict Plaintiff from the

                    house she was promised.. The wrongful eviction proceedings are currently pending in

                    justice of the peace court



                              15.          Defendants continue to harass the Plaintiff although they have been put

                     on notice that question of title is so integrally linked to the issue of possession, that

                     the justice court is without jurisdiction over the matter . The title to the property is one

                     of the facts that give rise to this lawsuit. Plaintiff suffers from mental anguish as a

                     result of the conduct of Defendant Jones and the other defendants who have

                     ·conspired with Defendant Jones .                                                              --·--·-.-------
                                                                                                        ,............




                                                       Count 1 Promissory Estoppal as a Claim



                              16..         Defendant Jones promised the Plaintiff that he would purchase a

                    residence for her. He promised that he would buy the home owned by another partner.




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--,,,-_Feb           3. 2015_ 9: 5 AM                                         :"   ..   ~.'     '    ,. :: ,•·' '.   "' ·~
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                      The financing of the purchase was designed so as                              to be disguised as follows:   Plaintiff

                      was to receive and did rt".ceive a raise to cover the monthly payments Defendant

                      Jones also promised Plaintiff lifetime employment.

                          17..       All the necessary real estate documents weie ordered by Defendant

                       Jones.

                          18..      Plaintiff relied on Defendant Jones' promise because the nature and

                       subject of the promise was reasonable in the context of the relationship betvveen the

                       Plaintiff and Defendant Jones. Plaintiff's reliance on the promise was also reasonable

                       and substantial, and she moved into the residence incurring moving and repair

                      expenses .



                          19        Defendant Jones knew or reasonably should have known, that Plaintiff

                      would rely on Defendant's promise Injustice to Plaintiff can be avoided solely if

                      Defendant's promise is enforced . Plaintiffs reliance on Defendant Jones' promise (s)

                      resulted in injury to Plaintiff which caused economic as well as non-economic

                      damages . Plaintiff seeks damages within the jurisdictional limits of the court.



                    ---Lo:-         l"'urthet, Platntlff l!i   entllll!d to recover reasonable and 1\eM§!;ary attOrney
                      fees under Texas Civil Practice & Remedies Code section 38 . 001(8) because this suit

                      is for promissory estoppeL

                          21 . On or about July 25, 2014 at the office of FMP SA Management Group, LLG,

                      d/b/a Food Management Partners, LLC, hereinafter "FMP", 120 Chula Vista, San

                      Antonio, Bexar County, Texas, Allen J .Jones, President of FMP, and benefactor of




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  . . '• :; : ... ~:: :;,
                ~·:                      ..     ···;· .. ,:
                                                      ..              : ·.:
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                                                                                   :
                                                                                             "    ''··   "·    :·:~




         Plaintiff, made a promise to purchase a home for Plaintiff, located at 8647 Timber

         Place, San Antonio, Texas 78250, for Plaintiff, Cearth Faire, negotiating a temporary

         lease pending the purchase of the home for her


            22. At the direction of Defendant Jones, Defendant Peter Donbavand, Vice

         President of Real Estate ~ Business Development for Defendant FMP, commenced

        the process of purchasing the home at 8647 Timber Place, San Antonio, Texas

        78250, for Plaintiff. Defendants' actions in furtherance of the promise, included but

        were not limited to contracting for an inspection and repairs for the home, prior to

        purchase .


            23.. At the direction of Defendant Jones, Defendant Donbavand negotiated a

        temporary lease agreement between, Tara Kemp, the owner of the home at 8647

        Timber Place, and Plaintiff, pending closing of !hat purchase on or about September

        15, 2014 . Defendant Donbavand prepared the one-month lease pending the closing

        of the sale.


            24.. Relying on the promise to purchase, and subsequent actions on the part of '

        Defendants, Plaintiff Faire gave notice to vacate her prior address ..


            25. On or about August 30, 2014, Plaintiffs employment with Defendant FMP was

        abruptly terminated, without notice or good cause connected with the work..              Her

        employment was terminated after several years, and following a recent promotion and

        pay increase. Defendant Jones had promised Plaintiff lifetime employment based on

        her willingness to work around the clock if necessary.




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    26. Employees of Defendants All Jones, LLC, and FMP, under the direction and

control of Defendants Jones and Donbavand, were instrncted, and did demand and

collect Plaintiffs personal iPhone, iPad, and computers.. Defendants then h;id access

to all her security and passwords, including her bank account, which they accessed.


    27.. On or about September 8, 2014, at the direction of Defendants Jones and

Donbavand, FMP employee Jessica DelaTorre personally delivBred a Notice to

Vacate Property, to Plaintiff at her home at 8647 Timber Place.


                        COUNT I • Promlssol)' Estoppel As A Claim



    28..       Defendant Jones made a promise to the Plaintiff that he would buy her a

house . The said house was owned by Tara Kemp, the wife of his partner, Jason

Kemp. Defendant Jones assured Plaintiff that the official real estate documents for

conveyance were being prepared . Defendant wanted Plaintiff to own the house in

consideration for her loyal employment during the past years . The nature of the

promise was one that was reasonable considering the special relationship between

the parties.



detriment Her reliance was foreseeable by Defendant Jones and other Defendants

acting in concert with Jones.. Further, Defendants have actual knowledge of her

reliance In that in furtherance of Jones' promise to purchase the house for her,

Plaintiff made numerous improvements to the home Defendant Jones promised her.

Plaintiff sustained economic damages as a result and great injustice can be avoided

only by enforcing the Defendanrs promise.                                                                                   r
 Received Time Feb. 3        9:44AM
    30..        Defendant Jones knew or reasonably should have known, U1at Plaintiff

would rely on Defendant's promise. Injustice to Plaintiff can be avoided solely if

Defendant's promise is enforced.. Plaintiff's reliance on Defendant Jones' promise (s)

resulted In Injury to Plaintiff which caused economic as well as non-economic

damages . Plaintiff seeks damages within the jurisdictional limits of the court



       31..     Further, Plaintiff is entitled to recoverreasonable and necessary attorney

f~es   under Texas Civil Practice & Remedies CO de section 38 . 001 (8) because this suit

is for promissory estoppeL




                             COUNT 11- WRONGFUL TERMINATION

    32. Over two years ago Plaintiff and Defendants entered into a valid and

enforceable written employment agreement. Throughout the term of employment,

Defendant Jones incessantly praised Plaintiff for her efforts both as to the companies

and to his personal requii·ements. Defendant Jones accordingly gave her pay raises

and 9ther benefits.

    33.        \JV lthln two weet<:s ol l'ler latest pay rnJSe, Oefentlati! Jones breached the -

employment agreement by firing her without cause . Defendant Jones has failed to

meet the terms of the agreement His breach has caused injury to the Plaintiff which

resulted in economic damages including but not limited to her mqnthly salary, benefits

and a severance package . Plaintiff seeks unliquidated damages within the

jurisdictional limits of this Court.




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                                                                           ..
                                                                           ::::.: ..




   34..         Defendant Jones' accessing of her personal bank account and

Facebook account and other private matters would be offensive to a reasonable

person . Plaintiff has confirmed with her bank of Defendant Jones' intrusion via the

internet


                                     COUNT Ill - CONVERSION

    35.         Plaintiff owned several items of electronic personal property that

included an !phone and an lpad load with personal information and private pass codes

including to bank accounts . Defendants wrongfully acquired and exercised dominion

and control over Plaintiff's personal property and invade her right to privacy .

Defendants have refused to return Plaintiffs personal property and continue to

harass Plaintiff by illegally accessing her email accounts.

    36.                Plaintiff has made numerous attempts to get her personal

property by means of written communications with Defendant Jones . He intentionally

and willfully contlnues to exercise dominion and control over Plaintiff's personal

property including electronic information. Defendants' wrongful acts have proximately

and directly caused injury to the Plaintiff, which have resulted in economic and non-

eeono111ie dainagl!!S. Plaintiff seeks 1ettin1    mti 1e etinoeffod prepefly a11d tf'ie damages
within the jurisdictional limits of the Court..

    37..               Further, Plaintiff seeks exemplary damages against all

Defendants as her injury resulted from Defendants' malice, which entitles Plaintiff to

exemplary damages under rex. Civ . P .. & Remedies Code section 41..003(a). Plaintiff

is also entitled to recover reasonable attorney fees under the Texas Property Code,

because this claim is to recover her personal property .




  Received Time Feb 3           9:44AM
                                           JURY DEMAND


    38.. Plaintiff demands a jury trial and tenders the appropriate fee with thi$ petition .


                                    CONDITIONS PRECEDE'.NT


     39.. All conditions precedent to plalntifrs claim for relief have been performed or

                                            have occurred ..


                                   REQUEST FOR DISCLOSURE


      40 . Under Texas Rule of Civil Procedure 194, plaintiff requests that defendant

              disclose, within 50 days of the service of this request, the information or

                                  material described in Rule 194..2 .


                                OBJECTION TO ASSOCIATE JUDGE


   41 . Plaintiff objects to the referral of this case to an associate judge for hearing a

       trial on the merits or presiding at a jury trial.


                                               PRAYER
        For these reasons, plaintiff asks that defendant be cited to appear and answer

and, on final trial, that plaintiff be awarded a judgment against defendant for the

following:


        a.      Economic and non-economic damages including, but not limited to back
                pay, front pay, severance pay, specific performance regarding the gift
                purchase of a home (or its morietary equivalent)..

        b..     Prejudgment and postjudgment Interest

        c..     Court costs .




 Received Time Feb 3             9:44AM
     d.   Attorney's fees

     e.   All other relief to which plaintiff is entitled.

                                         Respectfully submitted,

                                            LAW OFFICE OF OLGA BROWN
                                            111 Soledad, Suite 1725
                                              San Antonio, Texas 78205
                                              210/226-1550 telephone
                                              210/226-1884 facsimile
                                                                           l
                                              Argyle2@sbcglobal.net


                                            By: Isl Olga Brown_
                                                  OLGA BROWN
                                                  State Bar No. 03155500
                                                  Attomey for Plaintiff




                                                                           l
Received Time Feb 3         9:44AM
Feb. 3 2015 9:55AM                    No 7814   P 24




          EXHIBIT 2



                                                       r
        Received Time Feb. 3 9:44AM
      Feb     3 2015 9:55AM                                                                           No 7814      P 25
FILED
11126/2014 11:17:31 AM
Donna Kay McKinney
Bexar County District Cieri<
Accepted By: Maria Abilez

                                                     CAUSE NO. 2014-Cl-16674

               CEARTHFAIRE,                                        §           IN THE DlSTRlCT COURT
                                                                   §
                         Plaintiff,                                §
                                                                   §
               v.                                                  §
                                                                   §
               FMP SA MANAGEMENT GROUP, LLC                        §           150TH JUDIClAL DIS IRJCI
               d/b/aFOOD:MANAGEMENTPARTNERS,                       §
               LLC, ALL JONES, LlC, ALLEN L JONES                  §
               INDIVIDUALLY, AND PETER                             §
               DONBAVAND, INDIVIDUALLY                             §
                                                                   §
                        Defendants..                               §           BEXAR COUNTY, TEXAS


                                       DEFENDANTS' GENERAL DENIAL, DEFENSES &
                                        REQUEST FOR DISCLOSURES TO PLAINTIFF


                        For their Answer to Plaintiff's Original Petition, Defendants FMP SA Management

               Gxoup, LLC d/b/a Food Management Pa1tnexs, LLC, All Jones, LLC, Allen l. Jones, and

               Peter Donbavand (collectively, "Defendants") respectfully show the following:

                                                                  l.
                                                       GENERAL DENIAL

                        Pursuant to Texas Rule of Civil Procedure 92, Defendants generally deny each and every

              allegation contained in Plaintiff's 01iginal Petition, and demand strict proof thereof as required

              by the Constitution, Statutes, Laws and Texas Rules of Civil Procedure .

                                                                 II.
                                                             DEFENSES

                        1..     Fails to State a Claim -Plaintiff fails to state a claim, in whole or in pID:t, in her

              :Petition upon which relief can be granted.




                                                                                                                          l
                                                                  1

                    Rec e i ved Time Feb     3     9: 44AM
Feo 3 2015 9:55AM                                                                            No 7814     p     26




               2..   Conditions Precedent - Plaintiffs claims are barred, in whole or in part, by the

    applicable statutes of limitations and/or her failure to satisfy required conditions precedent,

    including any applicable administrative prerequisites.

               3.    :Express Contract- Plaintiff's claims may be baned, in whole or in part, because

    the alleged promises at issue in her Petition were subject to a valid, express contract between the

    parties.

               4..   Statute of Frauds - Plaintiff's claims may be barred, in whole or in paxt, by the

    statute of frauds .

               5.    Lack of Consideration - Plaintiffs claims may be baned, in whole or in part,

    because the alleged contracts at issue in her Petition were not supported by mutual consideration .

               6..   Failure of Consideration - Plaintiffs claims may be barred, in whole or in part,

    because Plaintiff failed to peifoxm a condition precedent to Defendants' alleged duties to

    perform, if any.

               7..   Wrongfully Acauired Possession -Plaintiff's claims for alleged conversion may

    be barred because Plaintiffwiongfully acquired the underlying items and/or property.

            8.       Superior Title - Plaintiff's claims may be baxred, in whole       01   in part, because

    Defendants had superior title or right to the underlying items and/or propert'··

            9.       Conipan1tive Negligence/No Proxiniate Cause - Plaintiff's damages and losses,

    if any, were the result of Plaintiff's own conduct and/or omissions, and wer·e not pxoximately

    caused by Defendants' actions and/or omissions .

            10.      Equitable Defenses -Plaintiff's claims may be barred, in whole oz in part, by the

    doctrines of waiver, estoppe!, collateral estoppel, res judicata, £n pari delicro, and unclean hands .




                                                      2

        Received Time      Feo. 3 9:44AM
Feb 3 2015 9:56AM                                                                        No. 7814     P 27




            11       Failure to Mitigate - Plaintiff has failed to exercise reasonable care and

    diligence to mitigate her damages, if any .

            12.      Offset -Plaintiff's damages and losses, if any, should be reduced by llllY and all

    interim eru:nings .

            13..    Right to Amend or· Supplement -Defendants reserve the right to amend or

    supplement their Answer in accordance with the I exas Rules of Civil Procedure.

                                               Ill.
                                     REQUEST FOR DISCLOSURE

            Pursuant to Texas Rule of Civil Procedure 194, Defendants request that Plaintiff disclose,

    within 30 days of service of this request, the information or material described in Rule 194 2.

                                                     rv.
                                                  PRAYER

            Defendants request that, upon fmal hearing, the Court dismiss this lawsuit in its entirety

    and ordeI' Plaintiff to take nothing by reason of this action; 01der Plaintiff to pay Defendants the

    aa:omey' s fees and costs ihey have incurred and will incur in defending this action; and grant

    Defendants all other relief to which it may be entitled .

    DATED this 26th day of November, 2014 .




                                                      3

        Received Time Feb 3 9:44AM
Feb   3 2015     9:56AM                                                              No. 7814   P 28




                                                      hristirie E.Reinhil.id · ···
                                                    State Bar No. 24013389
                                                    Shannon B. Schmoyer
                                                    State Bar No. 17780250
                                                    Justin Bru:bour
                                                    State Bar No . 24055142
                                                    SCHMOYER REINHARD LLP
                                                    17806 lH 10 West, Suite 400
                                                    San Antonio, Texas 78257
                                                    Phone: (210) 447-8033
                                                    Fax: (210) 447··8036
                                                    cteinhood@sr-llp.com
                                                    sschmoyer@sr-llp.com
                                                    jbarbour@s1-lJp.com

                                                    ATTORNEYS FOR DEFENDANTS FMl' SA
                                                    MANAGEMENr GROUP, LLC, D/B/A
                                                    FOOD MANAGEMENT PARTNERS, LLC,
                                                    ALL JONES, LLC, ALLEN J; JONES, AND
                                                    PETERDONBAVAND



                                      CERTIFICATE OF SERVICE

             I hereby certify that a copy of the foregoing document was served via catified mail,
      return receipt requested, to:

                                               Olga Brown
                                       Law Office of Olga Brown
                                         111 Soledad, Suite 1725
                                        SanAntonio, Texas 78205
                                       (210) 226-1884 (facsimile)
                                         argyle2@sbcglobal.net


      on this 26th day ofNovember, 2014 .




                                                                                                       r
                                                   4

          Received Time Feb . 3       9:44AM
Feb 3 2015 9:56AM                   No 7814   P 29




         EXHIBIT 3




       Received Time Feb 3 9:44AM
Feb 3 2015 9:56AM                                                                No 7814     P 30




                                     CAUSE NO. 2014-Cl-16674

      CEARTH FAIRE                                   §                     IN THE DISTRICT
      Plaintiff                                      §
                                                     §
      v.                                             §
                                                     §            150TH JUDICIAL DISTRICT
      FMP SA MANAGEMENT GROUP,                       §
      LLC, D/B/A FOOD MANAGEMENT                     §
      PARTNERS, LLC,                                 §
      ALL JONES, LLC, ALLEN J JONES,
      INDIVIDUALLY, AND
      PETER DONBAVAND,                               §
      INDIVIDUALLY                                   §
                                                     §
      Defendants                                     §            BEXAR COUNTY, TEXAS


                          PLAINTIFF'S AMENDED ORIGINAL PETITION


             Plaintiff, Cearth Faire, files this Amended Original Petition against defendants,

    Fmp Sa Management Group, LLC, D/B/A Food Management Partners, LLC, All Jones,

    LLC, Allen J Jones, and Peter Donbavand, and alleges as follows:


                                  DISCOVERY-CONTROL PLAN

             1 Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil

    Procedure 190 . 4 and affirmatively pleads that this suit is not governed by the

    expedited-actions process in Texas Rule of Civil Procedure 169 because she may

    seek injunctive relief.


                                          CLAIM FOR RELIEF

       2..    Plaintiff seeks monetary relief over $200,000 . 00 but not more than

    $3,000,000 00 .




        Received Time Feb 3         9:44AM
                                                                                                    I
Feb, 3 2015 9:57AM                                                                   No 7814    P 31




                                                     PARTIES

        3,          Plaintiff, Gearth Faire, is an individual whose address is 8647 Timber Place,

     San Antonio, TX 78250,


        4,,         Defendant   FMP    SA    MANAGEMENT        GROUP,      LLC,   D/B/A   FOOD

    MANAGEMENT PARTNERS, LLG is an active Texas Limited Liability Company

    conducting business in the State        of Texas, and has been served and is represented by
    counsel, and is properly before this court,,


        5.,              Defendant ALL JONES, LLC is an active Texas Limited Liability

    Company conducting business in the State of Texas, and and has been served and is

    represented by counsel, and is properly before this court

        6,,             Defendant Allen ,J Jones, is an individual who has been served and is

    represented by counsel, and is properly before this court

        7.              Defendant Peter Donbavand, is an individual has been served and is

    represented by counsel, and is properly before this court.



                                                 JURISDICTION


              8.,       The Court has subject-matter jurisdiction over the lawsuit because the

        amount in controversy exceeds this Court's minimum jurisdictional requirements,,


                                                     VENUE

       9.,     Venue is proper in Bexar County as all or a substantial part of the events or

     omissions giving rise to the claim occurred in Bexar County,,



                                                                                                    2



        Received Time Feb, 3            9:44AM
Feb, 3 2015     9:57AM                                                             No 7814       P 32




                                                  FACTS


         10,,      Plaintiff Faire was an employee of Defendants, as well as a personal

     assistant to Defendant Jones,, Plaintiff, in addition to working for Defendants'

     businesses, also took care of Defendant Jones' personal matters, including living in

     the Dominican Republic for approximately five months on a 24/7 basis assisting in his

     defense in a family law matter, Plaintiff has not been properly compensated for her

     seNices,



        11,        Defendant Jones in recognition for her loyal and tireless seNices

     assumed the role of her benefactor. In his role as a benefactor Defendant Jones

     promised Plaintiff that he would buy her a home so she would never have worries

    about a residence,, Defendant Jones developed a scheme for the purchase of the

     house that included an authorization that Plaintiff's pay scale would be increased to

    cover the house payments, Defendant Jones intended to hide the gift from the other

    Defendants named in this lawsuit Defendants have a real estate department as part

    of their businesses,,


        12,.       Although Defendant Jones intended to disguise the gift of the residence

    from his business partners, nevertheless he authorized for the necessary real estate

    transactions to be initiated that would result in a purchase transaction with Plaintiff as

    the owner, Plaintiff relied on Defendant Jones' promise and she moved into the

    residence at 8647 Timber Place, San Antonio, Texas 78250,,

        13,,      Plaintiff incurred moving expenses as well as expenses in making

    repairs to the residence to make it habitable, The residence is still in need of




        Received Time Feb      3    9:44AM
Feb 3 2015 9:57AM                                                                    No 7814    P 33




    significant repairs. An inspection was ordered by the defendants as further proof of

     Defendant Jones' promise of the gift. Further, in reliance that the home would be

    given to her, Plaintiff agreed to sign a one-month lease .



        14.        Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent

    promotion based on meritorious work .. Defendant Jones has now conspired with the

    other defendants including Defendant Peter Donabavand to evict Plaintiff from the

    house she was promised. The wrongful eviction proceedings were abated, as the

    justice of the peace court Jacks jurisdiction to rule on the petition for eviction.

    Defendants have not withdrawn their petition for eviction, as further proof of the

    Defendant Jones' promise to Plaintiff.

        15..       Defendants continue to harass the Plaintiff by wrongfully repossessing

     her car Plaintiff had clear title to her 2005 Mini cooper . Jones promised her an

     ambiguous payment plan, and in retaliation for claiming her rightful title to her house,

     he has deprived Plaintiff of a necessity to seek employment During the

     repossession process, he terrorized her by sending strangers to ring her doorbell, all

    while he owns a million dollars worth of automobiles, and spends a great deal of his

    time in the Dominican Republic .

                               Count 1 Promissory Estoppel as a Claim

       16.        Defendant Jones promised the Plaintiff that he would purchase a

   residence for her.. He promised that he would buy the home owned by another partner.

   The financing of the purchase was designed so as to be disguised as follows: Plaintiff

   was to receive and did receive a raise to cover the monthly payments. Defendant



                                                                                                4



        Received Time Feb 3 9:44AM
Feb 3 2015 9:58AM                                                                 No 7814   P 34



    Jones also promised Plaintiff lifetime employment

        17..       All the necessary real estate documents were ordered by Defendant

    Jones .

        18....     Plaintiff relied on Defendant Jones' promise because the nature and

    subject of the promise was reasonable in the context of the relationship between the

    Plaintiff and Defendant Jones . Plaintiff 's reliance on the promise was also reasonable

    and substantial, and she moved into the residence incurring moving and repair

    expenses .

        19..      Defendant Jones knew or !·easonably should have known. that Plaintiff

    would rely on Defendant's promise.. Injustice to Plaintiff can be avoided solely if

    Defendant's promise is enforced Plaintiff's reliance on Defendant Jones' promise (s)

    resulted in injury to Plaintiff which caused economic as well as non-economic

    damages.... Plaintiff seeks damages within the jurisdictional limits of the court

       20..       Further, Plaintiff is entitled to recover reasonable and necessary attorney

    fees under Texas Civil Practice & Remedies Code section 38 . 001 (8) because this suit

    is for promissory estoppeL

       21.. On or about July 25, 2014 at the office of FMP SA Management Group, LLG,

    d/b/a Food Management Partners, LLC, hereinafter "FMP", 120 Chula Vista, San

    Antonio, Bexar County, Texas, Allen J Jones, President of FMP, and benefactor of

    Plaintiff, made a promise to purchase a home for Plaintiff, located at 8647 Timber

    Place, San Antonio, Texas 78250, for Plaintiff, Cearth Faire, negotiating a temporary

    lease pending the purchase of the home for her. .


       22 At the direction of Defendant Jones, Defendant Peter Donbavand, Vice
                                                                                                   l
       Received Time Feb . 3 9:44AM
Feb. 3 2015    9:58AM                                                         No 7814     P 35



     President of Real Estate & Business Development for Defendant FMP, commenced

     the process of purchasing the home at 8647 Timber Place, San Antonio, Texas

     78250, for Plaintiff.. Defendants' actions in furtherance of the promise, included but

     were not limited to contracting for an inspection and repairs for the home, prior to

     purchase .


        23. At the direction of Defendant Jones, Defendant Donbavand negotiated a

     temporary lease agreement between, Tara Kemp, the owner of the home at 8647

     Timber Place, and Plaintiff. pending closing of that purchase on or about September

     15, 2014. Defendant Donbavand prepared the one-month lease pending the closing

    of the sale .


        24.. Relying on the promise to purchase, and subsequent actions on the part of

    Defendants, Plaintiff Faire gave notice to vacate her prior address.


        25.. On or about August 30, 2014, Plaintiffs employment with Defendant FMP was

    abruptly terminated, without notice or good cause connected with the work..         Her

    employment was terminated after several years, and following a recent promotion and

    pay increase. Defendant Jones had promised Plaintiff lifetime employment based on

    her willingness to work around the clock if necessary.


       26.. Employees of Defendants All Jones, LLC, and FMP, under the direction and

    control of Defendants Jones and Donbavand, were instructed, and did demand and

    collect Plaintiffs personal iPhone, iPad, and computers. Defendants then had access

    to all her security and passwords, including her bank account, which they accessed.




                                                                                              6



        Received Time Feb. 3      9:44AM
Feb 3 2015 9:59AM                                                                No 7814        P 36




        27. On or about September 8, 2014, at the direction of Defendants Jones and

    Donbavand, FMP employee Jessica DelaTorre personally delivered a Notice to

    Vacate Property, to Plaintiff at her home at 8647 Timber Place .


                            COUNT I - Promissory Estoppel As A Claim



        28..       Defendant Jones made a promise to the Plaintiff that he would buy her a

    house. The said house was owned by Tara Kemp, the wife of his partner, Jason

    Kemp.. Defendant Jones assured Plaintiff that the official real estate documents for

    conveyance were being prepared.. Defendant wanted Plaintiff to own the house in

    consideration for her loyal employment during the past years. The nature of the

    promise was one that was reasonable considering the special relationship between

    the parties, and the multi-million dollar net worth of the Defendant Jones, that includes

    approximately one million dollars worth of automobiles .

       29..       Plaintiff Faire reasqnably and substantially relied on the promise to her

    detriment Her reliance was foreseeable by Defendant Jones and other Defendants

    acting in concert with Jones.. Further, Defendants have actual knowledge of her

    reliance in that in furtherance of Jones' promise to purchase the house for her,

    Plaintiff made numerous improvements to the home Defendant Jones promised her.

    Plaintiff sustained economic damages as a result and great injustice can be avoided

    only by enforcing the Defendant's promise, which is reasonable in light of Defendant

    Jones' net worth .




        Received Time Feb. 3       9:44AM
Feb 3, 2015 9:59AM                                                                No 7814      P 37




         30,,        Defendant Jones knew or reasonably should have known, that Plaintiff

     would rely on Defendant's promise . Injustice to Plaintiff can be avoided solely if

     Defendant's promise is enforced. Plaintiff's reliance on Defendant Jones' promise (s)

     resulted in injury to Plaintiff which caused economic as well as non-economic

     damages,, Plaintiff seeks damages within the jurisdictional limits of the court



          31,,      Further, Plaintiff is entitled to recover reasonable and necessary attorney

     fees under Texas Civil Practice & Remedies Code section 38 .001 (8) because this suit

     is for promissory estoppet




                                  COUNT II-WRONGFUL TERMINATION

        32,,        Over two years ago Plaintiff and Defendants entered into a valid and

    enforceable written employment agreement. Throughout the term of employment,

    Defendant Jones incessantly praised Plaintiff for her efforts both as   to the companies
    and to his personal requirements,, Defendant Jones accordingly gave her pay raises

    and other benefits,,

        33,         Within two weeks of her latest pay raise, Defendant Jones breached the

    employment agreement by firing her without cause,, Defendant Jones has failed to

    meet the terms of the agreement His breach has caused injury to the Plaintiff which

    resulted in economic damages including but not limited to her monthly salary, benefits

    and a severance package., Plaintiff seeks unliquidated damages within the

    jurisdictional limits of this Court,,




                                                                                                  8



        Received Time Feb 3            9:44AM
Feb 3 2015 9:59AM                                                                  No 7814   P 38




       34.          Defendant Jones' accessing of her personal bank account and

     Facebook account and other private matters would be offensive to a reasonable

    person . Plaintiff has confirmed with her bank of Defendant Jones' intrusion via the

    internet Plaintiff seeks exemplary damages for this outrageous, if not illegal conduct


                                        COUNT Ill - CONVERSION



        35..       Plaintiff owned several items of electronic personal property that

    included an lphone and an lpad load with personal information and private pass codes

    including to bank accounts. Defendants wrongfully acquired and exercised dominion

    and control over Plaintiff's personal property and invade her right to privacy .

    Defendants have refused to return Plaintiff's personal property and continue to

    harass Plaintiff by illegally accessing her email accounts.



        36.               Plaintiff has made numerous attempts to get her personal

    property by means of written communications with Defendant Jones . He intentionally

    and willfully continues to exercise dominion and control over Plaintiff's personal

    property including electronic information . Defendants' wrongful acts have proximately

    and directly caused injury to the Plaintiff, which have resulted in economic and non-

    economic damages . Plaintiff seeks return of the converted property and the damages

    within the jurisdictional limits of the Court

       37..               Further, Plaintiff seeks exemplary damages against all

    Defondants as her injury resulted from Defendants' malice, which entitles Plaintiff to

    exemplary damages under Tex. Civ P & Remedies Code section 41 . 003(a) Plaintiff
                                                                                                    r
        Received Time Feb. 3         9:44AM
Feb   3 2015 10:00AM                                                              No 7814     P 39




      is also entitled to recover reasonable attorney fees under the Texas Property Code,

      because this claim is to recover her personal property .

                                                  JURY DEMAND


          38.. Plaintiff has demanded a jury trial and tendered the appropriate fee with her

      original petition .


                                          CONDITIONS PRECEDENT


          39 . All conditions precedent to plaintiff's claim for relief have been performed or

       have occurred.


                                      OBJECTION TO ASSOCIATE JUDGE


         40. Plaintiff objects to the referral of this case to an associate judge for hearing a

      trial on the merits or presiding at a jury trial.


                                                     PRAYER

               For these reasons, plaintiff asks that defendant be cited to appear and answer

      and, c;in final trial, that plaintiff be awarded a judgment against defendant for the

      following:


               a.    Exemplary damages

               b.    Economic and non-economic damages including, but not limited to back
                     pay, front pay, severance pay, specific performance regarding the gift
                     purchase of a home (or its monetary equivalent)

               c..   Prejudgment and postjudgment interest

               d..   Court costs .

              e..    Reasonable and necessary Attorney's fees

                                                                                              10


          Rec ei ved Time Feb     3    9: 44AM
Feb 3 2015 10:00AM                                                                No 7814   P 40



           f     All other relief to which plaintiff is entitled.

                                                Respectfully submitted,

                                                   LAW OFFICE OF OLGA BROWN
                                                   111 Soledad, Suite 1725
                                                     San Antonio, Texas 78205
                                                     210/226-1550 telephone
                                                     210/226-'1884 facsimile
                                                     Arqyle2@sbcglobal.net


                                                   By: Isl Olga Brown
                                                        OLGA BROWN
                                                        State Bar No . 03155500
                                                        Attorney for Plaintiff



                                   CERTIFICATE OF SERVICE

            I do hereby certify that on the 5th day of December 2014, in accordance with
     the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
     foregoing Plaintiff's Amended Original Petitioner was furnished to:

          Christine E Reinhard
          SCHMOYER REINHARD LLP
          17806 IH 10West, Suite 400
          San Antonio, Texas 78257
                                                       Isl Olga Brown
                                                       OLGA BROWN




       Received Time Feb 3        9:44AM
Feb 3 2015 10:00AM                     No 7814   P 41




         EXHIBIT4



                                                        [

       Received Time Feb 3. · 9:44AM
        Feb 3 2015 10:00AM                                                               No 7814    P 42
FILED
1/2812015 4:07:54 PM
Donna Kay McKinney
Bexar County District Cieri<
Accepted By: Monica Hernande~


                                              CAUSE NO. 2014-CJ.16674

                CEARTH FAIRE                                  §                    JN THE DISTRICT
                Plaintiff                                     §
                                                              §
               v.                                             §
                                                              §           1soTH JUDICIAL DISTRICT
               FMI> SA MANAGEMENT GROUP,                      §
               LLC, D/B/A FOOD MANAGEMENT                     §
               PARTNERS, LLC,                                 §
               ALL JONES, LLC, ALLEN J JONES,
               INDIVIDUALLY, AND
               PETER DONBAVAND,                               §
               INDIVIDUALLY                                   §
                                                              §
               Defendants                                     §            BEXAR COUNTY, TEXAS


                                PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION


                        Plaintiff, Cearth Faire, files this Second Amended Original Petition against

             defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners,

             LLC, ALL JONES, LLC, Allen J Jones, and Peter Donbavand, and alleges as follows:


                                            DISCOVERY-CON'rROL PLAN

                       1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil

             Procedure 190.4 and affirmatively pleads that this suit is not governed by the

            expedited-actions process in Texas Rule of Civil Procedure 169 because she may

            seek injunctive relief. Plaintiff has a pending Motion for a Level Three Docket Control

            Order, and the parties entered into a Rule 11 Agreement showing intent to enter into

            an Agreed Docket Control Order and setting this matter for Jury Trial November 2,

            2015 See Exhibit A.




                 Received Time Feb. 3        9:44AM
Feb. 3 2015 10:01AM                                                                   No 7814    P 43




                                                  CLAIM FOR RELIEF

         2..         Plaintiff seeks monetary relief over $200,000.00 but not more than

     $3,000,000 . 00.


                                                      PARTIES

        3..          Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place,

     San Antonio, TX 78250.


        4..          Defendant   FMP    SA    MANAGEMENT        GROUP,      LLC,   D/B/A   FOOD

    MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company

    conducting business in the State of Texas, and has been served and is represented by

    counsel, and is properly before this court


        5.                Defendant ALL JONES, LLC is an active Texas Limited Liability

     Company conducting business in the State of Texas, and and has been served and is

     represented by counsel, and is properly before this court

        6.                Defendant Allen J Jones, is an individual who has been served and is

     represented by counsel, and is properly before this court.

        7..              Defendant Peter Donbavand, is an individual has been served and is

    represented by counsel, and is properly before this court.



                                                   JURISDICTION


               8..       The Court has subject-matter jurisdiction over the lawsuit beeause the

        amount in controversy exceeds this Court's minimum jurisdictional requirements .




                                                                                                     2



        Received Time Feb 3              9:44AM
Feb 3 2015 10:01AM                                                                No. 7814    P 44




                                                  VENUE

        9..    Venue is proper in Bexar County as all or a substantial part of the events or

     omissions giving rise to the claim occurred in Bexar County .


                                                  FACTS


        10..        Plaintiff Faire was an employee of Defendants, as well as a personal

    assistant to Defendant Jones.. Plaintiff, in addition to working for Defendants'

    businesses, also took care of Defendant Jones' personal matters, including living in

    the Dominican Republic for approximately five months on a 2417 basis assisting in his

    defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been

    properly compensated for her services .



       11..         Defendant Jones, in recognition for her loyal and tireless services

    assumed the role of her benefactor . In his role as a benefactor Defendant Jones

    promised Plaintiff that he would buy a home and transfer ownership to Plaintiff, so she

    would never have worries about a residence.. Defendant Jones developed a scheme

    for his purchase of the house that included telling other corporate officers that

    Plaintiff's pay increase was for the house payments Defendant Jones intended to hide

    his gift from the other Defendants named in this lawsuit Defendants have a real

    estate department as part of their businesses, and therefore, Plaintiff was further

    inclined to believe his promise to purchase and transfer ownership .


       12..        Although Defendant Jones intended to disguise the gift of the residence

    from his business partners, nevertheless he authorized for the necessary real estate




        Received Time Feb 3         9:44AM
Feb   3 2015 10:01AM                                                                  No. 7814   P 45




      transactions to be initiated that would result in a purchase transaction and an

      immediate transfer of ownership.. Plaintiff relied on Defendant Jones' promise and she

      moved into the residence at 8647 Timber Place, San Antonio, Texas 78250 .

         13..       Plaintiff incurred moving expenses as well as expenses in making

      repairs to the residence to make it habitable . The residence is still in need of

      significant repairs. An inspection was ordered by the defendants as further proof of

      Defendant Jones' purchase with intention to make a gift Further, in reliance that the

      home would be given to her, Plaintiff agreed to sign a one-month lease.



         14.        Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent

       promotion based on meritorious work .... Defendant Jones has now conspired with the

      other defendants including Defendant Peter Donbavand to evict Plaintiff from the

      house she was promised. The wrongful eviction proceedings were abated, as the

      justice of the peace court lacks jurisdiction to rule on the petition for eviction

         15..       Defendants continue to harass the Plaintiff by wrongfully repossessing

      her car. Plaintiff had clear title to her 2005 Mini cooper. Jones promised her an

      ambiguous payment plan, and in retaliation for claiming her rightful title to her house,

      he has depriVed Plaintiff of a necessity of transportation to seek employment During

      the repossession process, he terrorized her by sending strangers to ring her doorbell,

      all while he owns a million dollars worth of automobiles, and spends a great deal of

      his time in the Dominican Republic.




                                                                                                 4



         Rec ei ved Time Feb    3    9: 44AM
Feb   3 2015 10:02AM                                                                   No 7814     P 46




          16..       Plaintiff had an exemplary employment record with Defendants FMP and

      ALL JONES, LLC, and had immediately before the firing, been given a raise in pay

      and additional duties.. Plaintiff was fired solely because Plaintiff refused to continue

      perform employment duties that were not in furtherance of the corporate business but

      to serve as a shield for Defendant Jones numerous illegal activities some including

      sexual harassment. Defendant Peter Donbavand, a business partner of Defendant

      Jones was aware of the employment violations occurring at the corporations and by

      non-action, condoned the wrongful conduct of Defendant Jones .

          17..       Plaintiff seeks actual damages as a result of the wrongful termination,

      which include, but are not limited to back pay from the date of retaliation until the date

      of trial.. Plaintiff also seeks future pay in lost earnings and benefits including the

      repossession of her automobile lost as a result of her wrongful termination .

         18..       Plaintiff also seeks damages for past and future mental anguish as a

      result of Defendant Jones forcing her to choose between the illegal activities he was

      demanding of her and her livelihood .

         19..       Defendant Jones acted with malice toward Plaintiff in that ,Jones

      exhibited conscious indifference to consequences Plaintiff might suffer separate and

      apart from the damages suffered as a result of the wrongful termination.. Defendant

      Jones and Defendant Donbavand have inflicted additional injuries by circulating

      malicious rumors about the Plaintiff, harassing the Plaintiff and other activities which

      affect her future employment. Plaintiff therefore seeks exemplary damages.




          Rec ei ved Time Feb. 3      9: 44AM
Feb   3 2015 10:02AM                                                                No 7814    P 47




                            COUNT 1-PROMISSORY ESTOPPEL as a CLAIM

          20..       On or about March 27, 2013, when Plaintiff Faire was temporarily living

       in the Dominican Republic at the request of Defendant ,Jones, taking care of Jones'

      child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home

      and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas.

          21.        It was reasonable for Plaintiff to rely on Defendant Jones' promise to

      purchase a home and gift it to her based on Defendant Jones' financial resources,

      including his ownership of one million dollars worth of cars, and extensive property

      real estate holdings in the United States, and in the Dominican Republic.


          22..      Defendant Jones promised the Plaintiff that he would execute a written

      agreement at closing, giving her full title and interest to the home . Defendant Jones

      further promised the closing would take place immediately upon the reaching of an

      agreement on the final price and other terms. A final purchase price was reached

      between Defendant Jones and his business partner Jason Kemp . All terms for the

      sale of the house were reached by buyer and seller.



         23.        Defendant Jones negotiated all the terms of the real estate purchase

      Defendant Jones had reached an agreement with his business partner, Jason Kemp

      to purchase the house located at 8647 Timber Place San Antonio, Texas 78250 from

      Kemp's wife, Tara Kemp . The real estate actions necessary for a closing were

      initiated . Defendant Donbavand ordered an inspection of the home in furtherance of a

      prompt closing .




                                                                                               6


          Rec ei ved Time Feb   3   9: 44AM
Feb 3 2015 10:03AM                                                                  No. 7814     P 48




        24..         Although there were no uncertainties regarding the purchase of the

     home by Defendant Jones for the Plaintiff, there was a delay in the closing. Plaintiff

    was asked to sign a one month lease pending the real estate closing. In signing the

    one-month lease, Defendant Jones promised he would sign the necessary documents

    to give Plaintiff full and complete ownership of the home in consideration for her loyal

    efforts in assisting Defendant Jones in the defense of his suit for divorce .


        25.          It now appears th.at Defendant Jones, acting in concert with Defendant

    Donbavand, who appeared in Justice of Peace court attempting to practice law without

    a license, regarding this promise, made the following:


              a.      a false representation or concealment of material facts concerning the
              real estate transaction;

              b..     made representation with knowledge, actual or constructive, of those
                 facts;
              c.     with the intention that it should be acted on;

              d..    to a party without knowledge or the means of knowledge of those facts

              e..    who detrimentally relied upon the misrepresentation


       26..         Plaintiff contends the promise to complete the transaction (closing of the

    real estate} conveying title to Plaintiff is binding against Defendant Jones in order to

    avoid injustice. Plaintiff further contends equitable estoppel alleged above is sufficient

    to preclude the statute of fraud defense to this promise of a home to Plaintiff.

                       COUNT 2 QUID PRO QUO SEXUAL HARASSMENT.

       27           Plaintiff was an employee of Defendants FMP, ALL JONES and their

    subsidiaries, and her duties were to serve as a personal assistant to the Defendant




        Received Time Feb       3   9:44AM
Feb   3 2015 10:03AM                                                               No 7814       P 49




      Allen J . Jones, the President and CEO of Defendant FMP . Plaintiff was a self-

      supporting divorced woman with no financial resources other than her wages. Plaintiff

      also had an exemplary work history prior to working for Defendants .


          28..      On or about January 21, 2013 Defendant Jones made sexual advances

      toward Plaintiff, a very attractive woman . Defendant Jones then demanded physical

      conduct of a sexual nature. Defendant Jones's demands escalated and the mental

      abuse was so extreme that it prevented Plaintiff from defending herself.


         29..       Defendant Jones made it cleared to the Plaintiff ttiat continued

       employment as well as other job benefits were conditioned on her acceptance of the

       continued sexual demands of Defendant Jones .


         30.        At the time of the harassment, Defendant Jones was the President and

       CEO of the Food Management Partners, a Texas LLC . At all times, Defendant

       Jones held himself out to Plaintiff and to the public, as a very powerful business man,

       and owner of 150 businesses . Defendant Jones instilled fear of his power on

      Plaintiff.. There was no recourse available to the Plaintiff to complain..


         31..       Plaintiff was harmed by the physical sexual conduct perpetrated against

      her by Defendant Jones.. Plaintiff's harm was directly and proximately cause by

      Defendant Jones sexual harassment.. When Plaintiff was well enough to, she refused

      to further submit to Defendant Jones' inappropriate requests she was fired   on or

      about August 31, 2014 .



                                                                                                        l
                                                                                                 a

         Rec ei v ed Time Feb   3    9: 44AM
Feb   3 2015 10:03AM                                                                No 7814    P 50




           32..       Plaintiff seeks compensatory damages for lost wages, lost benefits and

       future employment opportunities based on her traumatic experience at the hand of

        Defendant Jones .


          33. Plaintiff seeks exemplary damages based on Defendant Jones's history of

        sexual harassment of others and including the purchase of a female for his own

        inappropriate sexual requests.



          34.         Further, Plaintiff seeks exemplary damages against all Defendants, as

      her injury resulted from Defendants' malice, which entitles Plaintiff to exemplary

      damages under Tex Civ . P. & Remedies Code section 41..003(a).

                                         COUNT 3 - Conspiracy

          35..        Defendant Peter Donbavand and Jason Kemp, CFO of FMP assisted

      Defendant Jones in conduct which they knew amounted to a commission of a tort or

      wrongful acts against the Plaintiff.

          36.        Defendant Donbavand and Kemp acted with intent to assist Defendant

      Jones in his wrongful acts toward Plaintiff including the discriminatory practices

      perpetrated against Plaintiff more fully described in Petitioner's Second Amended

      Original Petition .

         37..        Defendant Donbavand and Kemp's assistance to Defendant Jones and

      their own related conduct was a substantial factor in causing the discriminatory

      practices and in the breach of the promise Defendant Jones made to Plaintiff.




          Received Time Feb. 3       9:44AM
Feb 3 2015 10:04AM                                                               No 7814     P 51




                                                 JURY DEMAND


        38. Plaintiff has demanded a jury trial and tendered the appropriate fee with her

    original petition .


                                          CONDITIONS PRECEDENT


        39.. All conditions precedent to plaintiff's claim for relief have been performed or

     have occurred .


                                   OBJECTION TO ASSOCIATE JUDGE


       40.. Plaintiff objects to the referral of this case to an associate judge for hearing a

    trial on the merits or presiding at a jury trial..
                                                                                                    I
                                                     PRAYER

             For these reasons, plaintiff asks that defendant be cited to appear and answer
                                                                                                    I
    and, on final trial, that plaintiff be awarded a judgment against defendant for the

    following:
                                                                                                    lI
                                                                                                    I
             a.

             b..
                   Exemplary damages

                   Economic and non-economic damages including, but not limited to back
                                                                                                    l
                                                                                                    I
                                                                                                    .1

                   pay, front pay, severance pay, specific performance regarding the gift
                   purchase of a home (or its monetary equivalent) .                                I
            c..    Prejudgment and postjudgment interest
                                                                                                    l
                                                                                                    !,
                                                                                                    J
            d..    Court costs.

            e.     Reasonable and necessary Attorney's fees

            f..    All other relief to which plaintiff is entitled .



                                                                                             10



        Received Time Feb 3           9:44AM
Feb 3 2015 10:04AM                                                           No 7814    P 52




                                            Respectfully submitted,

                                               LAW OFFICE OF OLGA BROWN
                                               111 Sotedad, Suite 1725
                                                 San Antonio, Texas 78205
                                                 210/226-1550 telephone
                                                 210/226-1884 facsimile
                                                 Arayle2@sbcglobal.net


                                               By: Isl Olga Brown
                                                    OLGA BROWN
                                                    State Bar No 03155500
                                                    Attorney for Plaintiff



                                 CERTIFICATE OF SERVICE

             I do hereby certify that on the 28th day of January 2015, in accordance with
      the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
      foregoing Plaintiff's Second Amended Original Petition was furnished to:

           Christine E Reinhard
           SCHMOYER REINHARD LLP
           17806 IH 10 West, Suite 400
           San Antonio, Texas 78257
                                                  Isl Olga Btown
                                                  OLGA BROWN                                   I
                                                                                               i
                                                                                               l
                                                                                               l
                                                                                               :1
                                                                                               l
                                                                                               !
                                                                                               ii
                                                                                               I
                                                                                               J
                                                                                               I
                                                                                               "
                                                                                               l"




       Rec eiv ed Time Feb 3     9: 44AM
Feb 3 2015 10:04AM                      No 7814   P 53




         EXHIBIT 5




                                    .




       Received Time Feb 3 9:44AM
Feb. 3 2015 10:04AM                                                             No 7814        P 54




                                   CAUSE NO. 2014-Cl-16674

      CEARTH FAIRE                                  §                     IN THE DISTRICT
      Plaintiff                                     §
                                                    §
      v.                                            §
                                                    §           150TH JUDICIAL DISTRICT
      FMP SA MANAGEMENT GROUP,                      §
      LLC, D/B/A FOOD MANAGEMENT                    §
      PARTNERS, LLC,                                §
      ALL JONES, LLC, ALLEN J JONES,
      INDIVIDUALLY, AND
      PETER DONBAVAND,                             §
      INDIVIDUALLY                                 §
                                                   §
      Defendants                                   §             BEXAR COUNTY, TEXAS


                     PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION


            Plaintiff, Cearth Faire, files this rhird Amended Original Petition against

    defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners,

    LLC, ALL JONES, LLC, Allen ,J ,Jones, and Peter Donbavand, and alleges as follows:


                                 DISCOVERY-CONTROL PLAN

           1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil

    Procedure 1904 and affirmatively pleads that this suit is not governed by the

    expedited-actions process in Texas Rule of Civil Procedure 169 because she may

    seek injunctive relief.. Plaintiff has a pending Motion for a Level Three Docket Control

    Order, and the parties entered into a Rule 11 Agreement showing intent to enter into

    an Agreed Docket Control Order and setting this matter for Jury Trial November 2,

    2015 . See Exhibit A.



                                                                                                      r
       Received Time Feb 3 9:44AM
Feb   3 2015 10:05AM                                                                   No 7814     P 55




                                                    CLAIM FOR RELIEF

           2.         Plaintiff seeks monetary relief over $200,000 . 00 but not more than

       $3,000,000 . 00 .


                                                        PARTIES

           3..        Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place,

       San Antonio, TX 78250 .


          4..         Defendant   FMP     SA   MANAGEMENT         GROUP,     LLC,   D/B/A   FOOD

      MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company

      conducting business in the State of Texas, and has been served and is represented by

      counsel, and is properly before this court


          5.               Defendant ALL JONES, LLC is an active Texas Limited Liability

      Company conducting business in the State of Texas, and and has been served and is

      represented by counsel, and is properly before this court

          6..             Defendant Allen J Jones, is an individual who has been served and is

      represented by counsel, and is properly before this court

          7.              Defendant Peter Donbavand, is an individual has been served and is

      represented by counsel, and is properly before this court



                                                     JURISDICTION


                 8.       The Court has subject-matter jurisdiction over the lawsuit because the

         amount in controversy exceeds this Court's minimum jurisdictional requirements .


                                                                                                          l
                                                                                                      2


          Rec ei ved Time Feb         3   9: 44AM
Feb 3 2015 10:05AM                                                                No 7814     P 56



                                                 VENUE


        9      Venue is proper in Bexar County as all or a substantial part of the events or

      omissions giving rise to the claim occurred in Bexar County.


                                                 FACTS

        10.         Plaintiff Faire was an employee of Defendants, as well as a personal

    assistant to Defendant Jones. Plaintiff, in addition to working for Defendants'

    businesses, also took care of Defendant Jones' personal matters, including living in

    the Dominican Republic for approximately five months on a 24!7 basis assisting in his

    defense in a family law matter pending in Bexar County, Texas . Plaintiff has not been

    properly compensated for her services.



        11..       Defendant Jones, in recognition for her loyal and tireless services

    assumed the role of her benefactor. In his role as a benefactor Defendant Jones

    promised Plaintiff that he would buy a home and transfer ownership to Plaintiff, so she

    would never have worries about a residence.. Defendant Jones developed a scheme

    for his purchase of the house that included telling other corporate officers that

    Plaintiff's pay increase was for the house payments. Defendant Jones intended to hide

    his gift from the other Defendants named in this lawsuit Defendants have a real

    estate department as part of their businesses, and therefore, Plaintiff was further

  · inclined to believe his promise to purchase and transfer ownership .




                                                                                                     r
       12          Although Defendant Jones intended to disguise the gift of the residence

   from his business partners, nevertheless he authorized for the necessary real estate




        Received Time Feb 3        9:44AM
Feb 3 2015 10:05AM                                                                   No 7814    P 57



     transactions to be initiated that would result in a purchase transaction and an

     immediate transfer of ownership. Plaintiff relied on Defendant Jones' promise and she

    moved into the residence at 864l Timber Place, San Antonio, Texas 78250 .

        13.        Plaintiff incurred moving expenses as well as expenses in making

    repairs to the residence to make it habitable. The residence is still in need of

    significant repairs An inspection was ordered by the defendants as further proof of

    Defendant Jones' purchase with intention to make a gift Further, in reliance that the

    home would be given to her, Plaintiff agreed to sign a one-month lease .



        14.        Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent

     promotion based on meritorious work .... Defendant Jones has now conspired with the

     other defendants including Defendant Peter Donbavand to evict Plaintiff from the

     house she was promised. The wrongful eviction proceedings were abated, as the

     justice of the peace court lacks jurisdiction to rule on the petition for eviction.

        15..       Defendants continue to harass the Plaintiff by wrongfully repossessing

     her car. Plaintiffhad clear title to her 2005 Mini cooper.. Jones promised her an

     ambiguous payment plan, and in retaliation for claiming her rightful title to her house,

     he has deprived Plaintiff of a necessity of transportation to seek employment During

    the repossession process, he terrorized her by sending strangers to ring her doorbell,

     all while he owns a million dollars worth of automobiles, and spends a great deal of

    his time in the Dominican Republic .




                                                                                                4



        Received Time Feb. 3        9:44AM
Feb 3. 2015 10:06AM                                                                   No 7814    P 58




         16..       Plaintiff had an exemplary employment record with Defendants FMP and

     ALL JONES, LLC, and had immediately before the firing, been given a raise in pay

     and additional duties. Plaintiff was fired solely because Plaintiff refused to continue

     perform employment duties that were not in furtherance of the corporate business but

     to serve as a shield for Defendant Jones numerous illegal activities some including

     sexual harassment Defendant Peter Donbavand, a business partner of Defendant

     Jones was aware of the employment violations occurring at the corporations and by

     non-action, condoned the wrongful conduct of Defendant Jones.

        17..       Plaintiff seeks actual damages as a result of the wrongful termination,

    which include, but are not limited to back pay from the date of retaliation until the date

     of trial . Plaintiff also seeks future pay in lost earnings and benefits including the

     repossession of her automobile lost as a result of her wrongful termination.

        18..       Plaintiff also seeks damages for past and future mental anguish as a

     result of Defendant ,Jones forcing her to choose between the illegal activities he was

    demanding of her and her livelihood .

        19..       Defendant Jones acted with malice toward Plaintiff in that Jones

    exhibited conscious indifference to consequences Plaintiff might suffer separate and

    apart from the damages suffered as a result of the wrongful termination. Defendant

    Jones and Defendant Donbavand have inflicted additional injuries by circulating

    malicious rumors about the Plaintiff, harassing the Plaintiff and other activities which

    affect her future employment Plaintiff therefore seeks exemplary damages .




        Received Time Feb 3          9:44AM
Feb 3 2015 10:06AM                                                                 No 7814   P 59




                           COUNT 1-PROMISSORY ESTOPPEL as a CLAIM

        20.        On or about March 27, 2013, when Plaintiff Faire was temporarily living

     in the Dominican Republic at the request of Defendant Jones, taking care of Jones'

     child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home

     and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas .

        21..       It was reasonable for Plaintiff to rely on Defendant Jones' promise to

     purchase a home and gift it to her based on Defendant Jones' financial resources,

     including his ownership of one million dollars worth of cars, and extensive property

     real estate holdings in the United States, and in the Dominican Republic .


        22..       Defendant Jones promised the Plaintiff that he would execute a written

    agreement at closing, giving her full title and interest to the home . Defendant Jones

    further promised the closing would take place immediately upon the reaching of an

    agreement on the final price and other terms. A final purchase price was reached

    between Defendant Jones and his business partner Jason Kemp All terms for the

    sale of the house were reached by buyer and seller



        23..       Defendant Jones negotiated all the terms of the real estate purchase .

    Defendant Jones had reached an agreement with his business partner, Jason Kemp

    to purchase the house located at 8647 Timber Place San Antonio, Texas 78250 from

    Kemp's wife, Tara Kemp . The real estate actions necessary for a closing were

    initiated . Defendant Donbavand ordered an inspection of the home in furtherance of a

    prompt closing .

                                                                                                    r
                                                                                              6



        Received Time Feb 3         9:44AM
Feb   3 2015 10:07AM                                                                  No 7814       P 60




          24..          Although there were no uncertainties regarding the purchase of the

       home by Defendant Jones for the Plaintiff, there was a delay in the closing. Plaintiff

      was asked to sigri a one month lease pending the real estate closing. In signing the

       one-month lease, Defendant Jones promised he would sign the necessary documents

      to give Plaintiff full and complete ownership of the home in consideration for her loyal

      efforts in assisting Defendant Jones in the defense of his suit for divorce


          25..          It now appears that Defendant Jones, acting iii concert with Defendant

      Donbavand, who appeared in Justice of Peace court attempting to practice law without

      a license, regarding this promise, made the following:


                 a..     a false representation or concealment of material facts concerning the
                 real estate transaction;

                 b.      made representation with knowledge, actual or constructive, of those
                    facts;
                 c.     with the intention that it should be acted on;

                 d..    to a party without knowledge or the means of knowledge of those facts

                 e.     who detrimentally relied upon the misrepresentation


         26            Plaintiff contends the promise to complete the transaction (closing of the

      real estate) conveying title to Plaintiff is binding against Defendant Jones in order to

      avoid injustice Plaintiff further contends equitable estoppel alleged above is sufficient

      to preclude the statute of fraud defense to this promise of a home to Plaintiff.

                          COUNT 2 QUID PRO QUO SEXUAL HARASSMENT

         27            Plaintiff was an employee of Defendants FMP, ALL JONES and their

      subsidiaries, and her duties were to serve as a personal assistant to the Defendant




          Rec ei ved Time Feb. 3       9: 44AM
Feb. 3 2015 10:07AM                                                                No 7814        P 61




     Allen J.. Jones, the President and CEO of Defendant FMP. Plaintiff was a self-

     supporting divorced woman with no financial resources other than her wages . Plaintiff

     also had an exemplary work history prior to working for Defendants .


        28..       On or about January 21, 2013 Defendant Jones made sexual advances

     toward Plaintiff, a very attractive woman Defendant Jones then demanded physical

     conduct of a sexual nature Defendant Jones's demands escalated and the mental

     abuse was so extreme that it prevented Plaintiff from defending herself..


        29..       Defendant ,Jones made it cleared to the Plaintiff that continued

     employment as well as other job benefits were conditioned on her acceptance of the

     continued sexual demands of Defendant Jones .


        30..      At the time of the harassment, Defendant Jones was the President and

     CEO of the Food Management Partners, a Texas LLC . At all times, Defendant

     Jones held himself out to Plaintiff and to the public, as a very powerful business man,

     and owner of 150 businesses . Defendant ,Jones instilled fear of his power on

     Plaintiff. There was no recourse available to the Plaintiff to complain:


       31..       Plaintiff was harmed by the physical sexual conduct perpetrated against

     her by Defendant Jones.. PlaintITfs harm was directly and proximately cause by

     Defendant Jones sexual harassment When Plaintiff was well enough           to, she refused
     to further submit to Defendant Jones' inappropriate requests she was fired on or

     about August 31, 2014 .




                                                                                                  8



        Received Time Feb. 3       9:44AM
Feb   3     2015 10:07AM                                                            No 7814     P 62




             32..      Plaintiff seeks compensatory damages for lost wages, lost benefits and

          future employment opportunities based on her traumatic experience at the hand of

          Defendant ,Jones .


            33 . Plaintiff seeks exemplary damages based on Defendant Jones's history of

          sexual harassment of others and including the purchase of a female for his own

          inappropriate sexual requests .



            34..      Further, Plaintiff seeks exemplary damages against all Defendants, as

      her injury resulted from Defendants' malice, which entitles Plaintiff to exemplary

      damages under Tex . Civ. P & Remedies Code section 41.003(a) .

                                            COUNT 3 """ Conspiracy

            35..      Defendant Peter Donbavand and Jason Kemp, CFO of FMP assisted

      Defendant Jones in conduct which they knew amounted to a commission of a tort or

      wrongful acts against the Plaintiff

           36.        Defendant Donbavand and Kemp acted with intent to assist Defendant

      Jones in his wrongful acts toward Plaintiff including the discriminatory practices

      perpetrated against Plaintiff more fully described in Petitioner's Third Amended

      Original Petition .

           37..       Defendant Donbavand and Kemp's assistance to Defendant Jones and

      their own related conduct was a substantial factor in causing the discriminatory

      practices and in the breach of the promise Defendant Jones made to' Plaintiff..




            Received Time Feb. 3      9:44AM
Feb   3 2015 10:08AM                                                                   No 7814     P 63



                                              COUNT 4 - Fraud

           38 .             Additionally, Plaintiff Faire pleads fraud on the part of Defendant

       Jones and aided and abetted by the other Defendants. Petitioner alleges that

       Defendants are barred from using the statute of frauds to avoid the promise of gifting

       real estate, namely the residence at 8647 Timber Place, San Antonio, TX 78250 to

       Plaintiff.



           39..      Plaintiff claims the gift of real estate must be enforced in equity as the

      denial of the enforcement would amount to a virtual fraud . See Exxon Co1p

      Breezevale, Ltd, 82 S W3d 429, 439 (Tex. App-Dallas 2002, pet. denied)..



          40..      Plaintiff alleges the facts of her claim removes the suit from the operation

       of the statute of frauds in that it meets the elements required as set forth;

                    (1) payment of consideration,

                    (2) possession by the promisee and

                    (3) the making by the promisee of valuable improvements;



          41..      Plaintiff shows it is undisputed that she worked Defendant Jones with

      the knowledge of all Defendants for nearly five months in the Dominican Republic on a

      2417 basis as consideration, and she has refrained from a claim of wage and hour

      violations, in reliance of the promise; Plaintiff has properly taken possession of the

      home pursuant to a document prepared by the Defendants and Plaintiff has made

      valuable improvements on the faith of the Agreement/promise .

                                                                                                          L
                                                                                                  10



          Received Time Feb     3.   9:44AM
Feb 3 2015 10:08AM                                                                 No 7814       P 64



         42..          Defendant Peter Donbavand has employed one Robert Ray, attorney at

     law to initiate eviction proceedings against Plaintiff on two occasions with the full

     knowledge of Defendant Jones' promise to Plaintiff. Therefore, Plaintiff's injuries

     resulted from Defendants' actual fraud or malice, which entitles Plaintiff to exemplary

    damages under Texas Civil Practice & Remedies Code section 41..003(a).

                                               JURY DEMAND

        43.. Plaintiff has demanded a jury trial and tendered the appropriate fee with her

    original petition .


                                       CONDITIONS PRECEDENT


        44.. All conditions precedent to plaintiffs claim for relief have been performed or

     have occurred .


                                   OBJECTION TO ASSOCIATE JUDGE


        45. Plaintiff objects to the referral of this case to an associate judge for hearing a

    trial on the merits or presiding at a jury trial .


                                                    PRAYER

                For these reasons, plaintiff asks that defendant be cited to appear and answer

    and, on final trial, that plaintiff be awarded a judgment against defendant for the

    following:


                a.    Exemplary damages

                b..   Economic and non-economic damages including, but not limited to back
                      pay, front pay, severance pay, specific performance regarding the gift
                      purchase of a home (or its monetary equivalent).




        Receiveef Time Feb. 3         9:44AM
Feb 3 2015 10:08AM                                                                 No 7814   P 65



            c..   Prejudgment and postjudgment interest.

            d..   Court costs.

            e..   Reasonable and necessary Attorney's fees

            f..   All other relief to which plaintiff is entitled.

                                                 Respectfully submitted,

                                                    LAW OFFICE OF OLGA BROWN
                                                    111 Soledad, Suite 1725
                                                      San Antonio, Texas 78205
                                                      210/226-1550 telephone
                                                      210/226-1884 facsimile
                                                      Argvlef@sbcglobal,net


                                                    By: Isl Olga Brown
                                                         OLGA BROWN
                                                         State Bar No . 03155500
                                                         Attorney for Plaintiff



                                   CERTIFICATE OF SERVICE

            I do hereby certify that on the. 30th day of January 2015, in accordance with
     the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
     foregoing Plaintiff's Third Amended Original Petition was furnished to:

         Christine E Reinhard
         SCHMOYE.R REINHARD L.l.P
         17806 IH 10 West, Suite 400
         San Antonio, Texas 78257
                                                        Isl Olga Brown
                                                        OLGA BROWN




                                                                                             12



       Received Time Feb      3    9:44AM
Tab 4
FILED
3/10/2015 3:52:26 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Maria Abilez

                                              CAUSE NO. 2014-CI-16674

                 CEARTH FAIRE                                 §                    IN THE DISTRICT
                 Plaintiff                                    §
                                                              §
                 V.                                           §
                                                              §           150TH JUDICIAL DISTRICT
                 FMP SA MANAGEMENT GROUP,                     §
                 LLC, D/B/A FOOD MANAGEMENT                   §
                 PARTNERS, LLC,                               §
                 ALL JONES, LLC, ALLEN J JONES,
                 INDIVIDUALLY, AND
                 PETER DONBAVAND,                             §
                 INDIVIDUALLY                                 §
                                                              §
                 Defendants                                   §            BEXAR COUNTY, TEXAS




                               PLAINTIFF’S FOURTH AMENDED ORIGINAL PETITION


                        Plaintiff, Cearth Faire, files this Fourth Amended Original Petition against

               defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners,

               LLC, ALL JONES, LLC, Allen J Jones, Peter Donbavand and Jason Kemp, and

               alleges as follows:


                                            DISCOVERY-CONTROL PLAN

                      1. A Level Three Agreed Docket Control Order is in place, this matter is set for

               Jury Trial November 2, 2015.


                                                    CLAIM FOR RELIEF

                   2.     Plaintiff seeks monetary relief over $200,000.00 but not more than

               $3,000,000.00.
                                              PARTIES

    3.    Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place,

San Antonio, TX 78250.


    4.    Defendant   FMP     SA    MANAGEMENT          GROUP,   LLC,   D/B/A   FOOD

MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company

conducting business in the State of Texas, and has been served and is represented by

counsel, and is properly before this court.


    5.         Defendant ALL JONES, LLC is an active Texas Limited Liability

Company conducting business in the State of Texas, and has been served and is

represented by counsel, and is properly before this court

    6.         Defendant Allen J Jones, is an individual who has been served and is

represented by counsel, and is properly before this court.

    7.         Defendant Peter Donbavand, is an individual has been served and is

represented by counsel, and is properly before this court.

    8.         Defendant Jason Kemp is an individual whose business address is

Food Management Partners, LLC 120 Chula Vista, San Antonio, TX 78232. He may

be served at this address, or wherever he may be found.



                                         JURISDICTION


         9.    The Court has subject-matter jurisdiction over the lawsuit because the

    amount in controversy exceeds this Court’s minimum jurisdictional requirements.




                                                                                          2
                                             VENUE


   10. Venue is proper in Bexar County as all or a substantial part of the events or

omissions giving rise to the claim occurred in Bexar County.


                                              FACTS


   11.        Plaintiff Faire was an employee of Defendants, as well as a personal

assistant to Defendant Jones. Plaintiff, in addition to working for Defendants’

businesses, also took care of Defendant Jones’ personal matters, including living in

the Dominican Republic for approximately five months on a 24/7 basis assisting in his

defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been

properly compensated.



   12.        Defendant Jones, individually, in recognition for her loyal and tireless

services personal to him, promised Plaintiff a home. Defendant Jones developed a

scheme for his purchase of the house that included telling other corporate officers that

Plaintiff’s pay increase was for the house payments. Defendant Jones intended to hide

his gift from the other Defendants named in this lawsuit, until he retaliated against

Plaintiff by denying he had made a gift of real estate to Plaintiff.


   13.        Defendant Jones, in his individual capacity, negotiated with Defendant

Jason Kemp, whose wife owned the residence at 8647 Timber Pl, San Antonio, TX

78250. Defendant Jones then instructed, Defendant Donbavand, in his individual

capacity and outside the scope of corporate business to prepare the necessary

documents so he, Jones could purchase the residence for the Plaintiff.
   14.        Defendant Donbavand, while a business partner of Defendant Jones and

also an agent of Defendant FMP, routinely served Defendant Jones as a personal

aide and routinely took orders from Jones outside the course and scope of his duties

with the corporate entities to meet the personal demands of Defendant Jones,

notwithstanding if the corporate best interests were served.



   15. Defendant Kemp, also a business partner of Defendant Jones, took orders and

assumed duties outside the course and scope of the corporate entities upon demand

from Defendant Jones the President & CEO of Defendant FMP. Defendant Jones

treats the corporate entities as his “piggy bank” and Defendants Donbavand and

Kemp, as his personal aides.



   16.        Defendant Kemp routinely succumbs to the personal demands of

Defendant Jones outside the best interests of the corporate business as in this case to

sell him the residence at 8647 Timber Pl, San Antonio, TX 78250, so he could gift the

property to the Plaintiff in consideration for her assisting in his personal legal matters.



   17.               While Defendant Donbavand was completing the necessary

documents, again outside the course and scope of corporate business, Defendant

Jones requested that Plaintiff move into the house, orally gifting her the house, a

present gift. Plaintiff in reliance of his oral promised moved into the house with the

consent of Defendant Kemp and the request of Defendant Jones and made valuable

and permanent improvements in reliance of Defendant Jones promise to her.



                                                                                              4
   18.       Plaintiff incurred moving expenses as well as expenses in making

permanent improvements to the residence to make it habitable. The residence is still

in need of significant repairs. An inspection was ordered by the defendants as further

proof of Defendant Jones’ purchase with intention to make a gift.



   19.       Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent

promotion based on meritorious work.. Defendant Jones demanded the other

defendants Defendant Peter Donbavand and Defendant Jason Kemp evict Plaintiff

from the house he had given her. The wrongful eviction proceedings were abated,

as the justice of the peace court lacks jurisdiction to rule on the petition for eviction in

that title to the property is at issue. The wrongful eviction proceedings are outside the

course and scope of corporate business.




   20.       Defendants continued to harass the Plaintiff by wrongfully repossessing

her car. Plaintiff had clear title to her 2005 Mini Cooper. Jones promised to repair

her car. An ambiguous payment plan was put in place. However, in retaliation for

claiming her rightful title to her house, Jones has deprived Plaintiff of a necessity, of

transportation to seek employment. During the repossession process, Jones

terrorized her by sending strangers to ring her doorbell, all while he owns a million

dollars worth of automobiles, and spends a great deal of his time in the Dominican

Republic.
   21.         Plaintiff had an exemplary employment record before being hired by

Defendants FMP and ALL JONES, LLC. Immediately before being fired by

Defendants, Faire had been given a raise in pay and been entrusted with additional

duties. Plaintiff was fired solely because Plaintiff refused to continue to perform

employment duties that were not in furtherance of the corporate business and

because of Defendant Jones’ demands for demeaning sexual acts and explicit threats

to fire her if she didn’t submit.


   22.         Plaintiff seeks actual damages as a result of the sexual harassment and

discrimination, which include, but are not limited to back pay from the date of quid pro

quo retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and

benefits including the repossession of her automobile lost as a result of her unlawful

termination.



   23.         Plaintiff also seeks damages for past and future mental anguish as a

result of Defendant Jones explicitly forcing her to choose between the sexual abuse

he was demanding of her and her livelihood.



   24.         Defendant Jones acted with malice toward Plaintiff in that Jones

exhibited conscious indifference to consequences Plaintiff might suffer separate and

apart from the damages suffered as a result of the retaliation. Defendant Jones, as

President and CEO, has inflicted additional injuries by circulating malicious rumors

about the Plaintiff at corporate headquarters. Plaintiff therefore seeks exemplary

damages.


                                                                                                6
                          COUNT 1- ORAL GIFT OF REAL ESTATE


   25.         On or about March 27, 2013, when Plaintiff Faire was temporarily living

in the Dominican Republic at the request of Defendant Jones, taking care of Jones’

child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home

and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas.

         26.   On or about July 20 2014, Plaintiff moved into the house at 8647 Timber

 Pl, San Antonio, Texas 78250, that Defendant Jones gifted her in his individual

 capacity but with the knowledge and consent of all Defendants. Plaintiff is still

 living at her home, taking possession under the present gift.



         27.   Plaintiff has made permanent and valuable improvement to the home

 based on the reliance of the gift made to her by Defendant Jones as an individual.



         28.   It was reasonable for Plaintiff to rely on Defendant Jones’ promise of an

 oral gift of real estate based on Defendant Jones’ financial resources, including but

 not limited to ownership in franchises of Zio’s Italian Kitchen, Buffalo Wild Wings,

 Don Pablo’s Big Tex Bold Mex, Furr’s, Little Ceasar’s and Smashburger.



          29. Further, Defendant Jones boasts of having presently one million dollars

 worth of cars and extensive real estate holdings in the state. In other judicial

 proceedings, Defendant Jones bragged about owning 150 businesses and having

 financial resources to “buy” a young lady from a brothel for $10,000.00 in the

 Dominican Republic where he also has extensive real estate holdings.
       30. Defendant Jones informed the Plaintiff that he was buying the house from

Defendant Kemp, and that at closing, he would give her full title and interest to the

home. Defendants Jones further promised the closing would take place immediately

upon the reaching of an agreement on the final price and other terms. A final

purchase price was reached between Defendant Jones and Defendant Jason Kemp.

All terms for the sale of the house were reached by buyer and seller, and having

absolutely nothing to do with the business of the corporate entities, parties herein



       31. Defendant Jones negotiated all the terms of the real estate purchase to

make a present gift of real estate to Plaintiff. Defendant Jones, Defendant Kemp,

and Defendant Donbavand knew the house located at 8647 Timber Pl, San Antonio,

TX 78250 purchased from Kemp’s wife, Tara Kemp, was a gift of real estate to the

Plaintiff. Defendant Donbavand ordered an inspection of the home in furtherance of

a prompt closing, all outside of the course and scope of corporate business..



     32.    Defendant Jones made this gift to Plaintiff as an individual and not as

President & CEO of the other corporate defendants. Defendant Jones purchased

the home from Defendant Kemp as an individual and not as a transaction within the

course and scope of corporate business.



     33.    Defendant Jones ordered Defendant Donbavand to complete the

necessary documentation and transactions outside the course and scope of



                                                                                        8
 corporate business. Defendant Donbavand routinely acts as Defendant Jones’

 personal aide to carry out his orders regarding personal matters. Defendant

 Donbavand is experienced in real estate transactions and worked to completing the

 necessary documents. In the meantime, in a fit of retaliation, Defendant Jones

 changed his mind about the gift. Plaintiff has been living in the house for eight

 months.



         34.   Plaintiff asserts this oral gift of real estate must be enforced in equity as

 the facts herein establish a gift of real estate, notwithstanding the requirements of

 the statute of frauds.

                                    COUNT 2 – Conspiracy



         35.   Defendants Peter Donbavand and Jason Kemp, as individuals acting

outside their corporate duties, assisted Defendant Jones in conduct which they knew

amounted to a commission of a tort or wrongful acts against the Plaintiff, and

specifically acting to rescind the oral gift of real estate to Plaintiff



      36.      Defendant Donbavand and Defendant Kemp acted with intent to assist

Defendant Jones in his wrongful acts toward Plaintiff of attempting to rescind the

present gift of real estate.

   37.         Defendant Donbavand and Defendant Kemp’s assistance to Defendant

Jones and their own related conduct was a substantial factor in the breach of the

present gift Defendant Jones made to Plaintiff.
                 COUNT 3 QUID PRO QUO SEXUAL HARASSMENT


   38.       Plaintiff was an employee of Defendants FMP, ALL JONES and their

subsidiaries, and her duties were to serve as a personal assistant to the Defendant

Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self-

supporting divorced woman with no financial resources other than her wages. Plaintiff

also had an exemplary work history prior to working for Defendants.



   39.       Plaintiff raises this claim under Tex. Lab. Code Ann. §§ 21.001, .051

(West 1996), which prohibits discrimination on the basis of sex.


   40.       On or about January 21, 2013 Defendant Jones made sexual advances

toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical

conduct of a sexual nature. Defendant Jones’s demands escalated and the mental

abuse was so extreme that it prevented Plaintiff from defending herself.


   41.       Defendant Jones made it cleared to the Plaintiff that continued

employment as well as other job benefits were conditioned on her acceptance of the

continued sexual demands of Defendant Jones.


   42.       At the time of the harassment, Defendant Jones was the President and

CEO of the Food Management Partners, a Texas LLC. At all times, Defendant

Jones held himself out to Plaintiff and to the public, as a very powerful business man,

and owner of 150 businesses. Defendant Jones instilled fear of his financial power

on Plaintiff. There was no recourse available to the Plaintiff to complain.


                                                                                          10
   43.       Plaintiff was harmed by the physical sexual conduct perpetrated against

her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by

Defendant Jones sexual harassment. When Plaintiff was mentally well enough to,

she refused to further submit to Defendant Jones’ inappropriate requests she was

fired on or about August 31, 2014.


   44.       Plaintiff seeks compensatory damages for lost wages, lost benefits and

future employment opportunities based on her traumatic experience at the hand of

Defendant Jones.


   45.       Plaintiff seeks exemplary damages based on Defendant Jones’s history

of sexual harassment of others and including the purchase of a female as if she was

merely chattel.



   46.       Further, Plaintiff seeks exemplary damages against Defendant

Donbavand and Defendant Kemp, as her injury resulted from Defendants’ malice,

which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code

section 41.003(a).



                                     JURY DEMAND

   47. Plaintiff has demanded a jury trial and tendered the appropriate fee with her

original petition. The jury trail has been set for November 2, 2015.
                                    CONDITIONS PRECEDENT


   48. All conditions precedent to plaintiff’s claim for relief have been performed or

have occurred.


                                OBJECTION TO ASSOCIATE JUDGE


       49.       Plaintiff objects to the referral of this case to an associate judge for

hearing a trial on the merits or presiding at a jury trial.


                                                 PRAYER

        For these reasons, Plaintiff asks that Defendants be cited to appear and

answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for

the following:


        a.       Exemplary damages

        b.     Economic and non-economic damages including, but not limited to back
             pay, front pay, severance pay, specific performance regarding the gift
             purchase of a home (or its monetary equivalent).

        c.       All the remedies afforded by Tex. Lab. Code Ann. 21.001

        c.       Prejudgment and postjudgment interest.

        d.       Court costs.

        e.       Reasonable and necessary Attorney’s fees

        f.       All other relief to which Plaintiff is entitled.




                                                                                            12
                                     Respectfully submitted,

                                       LAW OFFICE OF OLGA BROWN
                                       111 Soledad, Suite 1725
                                         San Antonio, Texas 78205
                                         210/226-1550 telephone
                                         210/226-1884 facsimile
                                         Argyle2@sbcglobal.net


                                       By: /s/ Olga Brown_________
                                            OLGA BROWN
                                            State Bar No. 03155500
                                            Attorney for Plaintiff



                          CERTIFICATE OF SERVICE

       I do hereby certify that on the 10th day of March 2015, in accordance with
the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and
foregoing Plaintiff’s Fourth Amended Original Petition was furnished to:

    Christine E Reinhard
    SCHMOYER REINHARD LLP
    17806 IH 10 West, Suite 400
    San Antonio, Texas 78257
                                           /s/ Olga Brown_______
                                           OLGA BROWN
Tab 5
                               CAUSE NO. 2014-CI-16674


CEARTH FAIRE                                       §                       IN THE DISTRICT
Plaintiff                                          §
                                                   §
V.                                                 §
                                                   §           150TH JUDICIAL DISTRICT
FMP SA MANAGEMENT GROUP,                           §
LLC, D/B/A FOOD MANAGEMENT                         §
PARTNERS, LLC,                                     §
ALL JONES, LLC, ALLEN J JONES,                     §
INDIVIDUALLY, AND                                  §
PETER DONBAVAND,                                   §
INDIVIDUALLY                                       §
                                                   §
Defendants                                         §             BEXAR COUNTY, TEXAS


          PLAINTIFF’S MOTION FOR RECONSIDERATION/NEW TRIAL


TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COMES PLAINTIFF, CEARTH FAIRE, who herein requests this

Court to reconsider this Court’s granting of Defendants’ Rule 91a Motion to

Dismiss her claims of oral gift of real estate and conspiracy. In support of such

request Petitioner would show this Court as follows:



                           I. Factual Background of Earlier Motion

        At the March 18, 2015 hearing, Movants based their arguments on

complaints of the pleadings more in the light of a no-evidence summary motion

or request for special exception relief. This is not the basis for determining

whether Petitioner’s causes of action have merit at this particular stage of

litigation.



_____________________________________________________________________________________________   1
PLAINTIFF’s Motion for Reconsideration. /New Trial
        Petitioner clearly pled each element for her cause of action for oral gift of

real estate and conspiracy to defraud by succinctly and factually addressing each

element of her claims. Whether or not those facts support her allegations is a

matter for another motion in the future. At this stage, the reasonable inferences

reasonably drawn from them is sufficient to for this court to deny the Rule 91a

Motion. But, more importantly, Movants failed to properly plead their own Motion.



                 II. Contents of Motion Fails to Identify Cause of Action
                                  Challenged by Movant


        The Movants failed to meet the requirements of the Dismissal Rule.

On February 3, 2015, Defendants filed an Amended Motion for Partial Dismissal

of Plaintiff’s claim of promissory estoppel. But prior to the hearing, Plaintiff had

timely filed her Fourth Amended Original Petition, eliminating the cause of action

for promissory estoppel, and included a claim for Oral Promise of Real Estate,

separate and distinct from promissory estoppel as a cause of action.

        Movant’s motion did not include a challenge to the new cause of action.

TRCP 91a: Dismissal of Baseless Causes of Action clearly makes strict

requirements of the Movant. This requirement is not one of an onerous nature.

        Movants were simply required to meet the requirements of TRCP 91a.2

which mandates that movant identify each cause of action to which the motion is

addressed. Further, movant must state specifically, the reasons the cause of

action has no basis in law and no basis in fact or both.



_____________________________________________________________________________________________   2
PLAINTIFF’s Motion for Reconsideration. /New Trial
        Movants failed to do both. Instead and mistakenly, Movants argued the

cause of action of promissory estoppel, which was no longer a part of the Fourth

Amended Original Petition, the live pleadings.



             III. Movants Merely Argued Evidence, Contrary to Rule



        Movants were further mistaken at the time of the hearing by arguing

evidence regarding Plaintiff’s claims. It is undisputed that Rule 91a.7 mandates

that the court may not consider evidence in ruling on the Motion. The court must

decide the motion based solely on the pleading of the cause of action. The

pleading of the oral gift of real estate was unchallenged in the amended

dismissal motion, therefore the claim must stand and proceed to a trier of fact.

        Movants further failed to plead and prove an award of attorney fees. It is

also a requirement of the Rule. This court has properly stricken the award from

Movant’s order. Likewise, this court should also deny their motion to eliminate

Petitioner’s claim for oral gift of real estate.



              IV. Movants Failed to Address Individual Conspirators Acts

        Movants again failed to address the cause of action of conspiracy that was

properly plead by Petitioner. In their Amended Motion for Dismissal of

Conspiracy, they address the issue of conspiracy as being barred by Intra-

Corporate Immunity Doctrine. After Petitioner amends her pleadings and alleges



_____________________________________________________________________________________________   3
PLAINTIFF’s Motion for Reconsideration. /New Trial
that each defendant was acting outside the scope of the corporate responsibility,

Movant failed again to address the issue in his Amended Motion 91a which

requires specificity in the challenges to the cause of action. Movants failed to

specifically state the reason(s) there is no basis in law or no basis in fact or both.

        Movants were required by to include in the contents of their motion a

challenge to the individual acts of each defendant. A conclusory statement of

an alleged affirmative defense is not sufficient to meet the requirements of

Rule 91a.2.

        Petitioner is prepared to challenge Movants’ slide show of misstatements

of law and of facts and presented to this court. Movants’ email traffic supports

Petitioner’s claims of the individual acts of conspiracy in relation to the Defendant

Jones’ oral promise of real estate to Petitioner.



                                           CONCLUSION

        Movants’ counsel’s own words at time of hearing should persuade this

court to reconsider the granting of their Motion to Dismiss. Mr. Justin Barbour’s

own words were as follows:



        “……just as we’re bound by plaintiff’s live pleadings, in determining

whether or not the Rule 91a motion should be granted, I believe the plaintiff

should be as well….”




_____________________________________________________________________________________________   4
PLAINTIFF’s Motion for Reconsideration. /New Trial
        The Plaintiff’s live pleadings include the cause of action of oral gift of real

estate. The contents of Movants’ Amended Rule 91a motion do not challenge

that specific cause of action. Further, the Movants’ live pleadings also do not

specifically challenge the conspiracy action.



        The Movants had the burden to properly plead their Rule 91a motion by

simply identifying in their motion each cause of action they challenge and state

specifically the reasons the cause of action has no basis in law or in fact or both.

Movants failed to meet this burden.

        Movants are in agreement, parties are bound by their pleadings.

Movants’ pleadings do not support a granting of the motion. Defendants’ self-

serving interpretation of Plaintiff’s pleadings do not meet the strict requirement of

the Rule. This court therefore should reconsider its ruling in this matter and deny

Defendants’ Motion to Dismiss.

        Plaintiff seeks attorneys fees and costs accordingly, and respectfully

requests the Court grant her attorney fees and costs in defending this matter.



                                          PRAYER

        WHEREFORE ALL PREMISES CONSIDERED , Plaintiff Faire prays that

after notice and hearing, this court reconsider its original judgment, deny

Defendants’ Motion to Dismiss, and, in the alternative, grant an Order for New

Trial. Plaintiff prays for attorneys’ fees and costs. Plaintiff prays for all other and

further relief to which she is entitled.



_____________________________________________________________________________________________   5
PLAINTIFF’s Motion for Reconsideration. /New Trial
                                            Respectfully submitted:

                                            By:    _/s/ Olga Brown___________
                                                    LAW OFFICES OF OLGA BROWN
                                                   OLGA BROWN
                                                   State Bar No. 03155500
                                                   111 Soledad, Suite 1725
                                                   San Antonio, Texas 78205
                                                   Telephone: 210/226-1550
                                                   Telecopier: 210/226-1884
                                                   Argyle2@sbcglobal.net
                                                   Attorney for Plaintiff


                                  NOTICE OF HEARING

        IT IS HEREBY ORDERED that the above styled and numbered cause is

set for hearing before Judge Antonia Arteaga on the 28th day of April 2015 at

11:30 a.m., 57th Judicial District Court, Bexar County Courthouse, San Antonio,

Texas.

        SIGNED this ______ day of April, 2015.


                                                        ________________________
                                                        HON. ANTONIA ARTEAGA


                               CERTIFICATE OF SERVICE


       I certify that a true and correct copy of the above and foregoing Motion for
Reconsideration was served on each attorney of record or party in accordance
with the Texas Rules of Civil Procedure on this 21st day of April 2015.
       :
                                                   /s/ Olga Brown_______
                                                   OLGA BROWN




_____________________________________________________________________________________________   6
PLAINTIFF’s Motion for Reconsideration. /New Trial
Tab 6
    Rule 91A Motions to Dismiss                                                                                            Chapter 4




                                                     TABLE OF CONTENTS

    I          Legislative History of Rule 9la                                                                                             .1
          A          Statutory Foundation for Rule 91 a
               1.         The Legislature's Sketch of Rule 9la.                                                                         ..... 1
               2..        Mandatory Award of Attorney's Fees to Prevailing Pruty .                                                         .1
          B          Adoption of Rule 9la .....                                                                                     . .... 2
    II         Nuts and Bolts of a Rule 91 a Motion to Dismiss                                                                               3
          A          Scope of Rule 9la's Application ....                                                                         ........... 3
          B.         Rule 9la's Basis for Dismissal .                                                                         ............. 4
               1          No Basis in Law .                                                                                                  4
                     a      A claim may be dismissed when the cause of action alleged is not recognized by Texas law.     . ................ 4
                     b      A claim may be dismissed based on the facts alleged in the pleading..                                            4
                     c.     A claim may be dismissed based on exhibits attached to any pleadings pursuant to Rule. 59 .                      5
               2.         No Basis in Fact.                                                                                                  5
          C.         Rule 91 a Deadlines                                                                                                   .5
               I.         Filing the Motion                                                                                            ... 5
               2          Setting a Heming ..... .                                                                                   ....... 5
               3.         Responding to the Motion .                                                                            ············· 6
               4.         Obtaining a Ruling on the Motion .                                                                             ..... 6
          D          ContentsofaRule9laMotion                                                                                           ... 6
          E          Mandatory A wrud of Attomey Fees                                                                                       6
    III              Will Rule 9la Prove to be a Usefol Tool? ..                                                                           .6




L
     Rule 91A Motions to Dismiss                                                                           Chapter 4




                                      TABLE OF AUTHORITIES

     Cases
     Birdo v Williams, 859 S.W2d 571 (Tex. App-Houston (!st Dist] 1993, no writ)...                                      5
     Boyles v. Kerr, 855 S..W.2d 593 (I ex. 1993)                                                                       .4
     Centennial Ins v. Commercial Union Ins, 803 SW 2d 479 (Tex. App -Houston [14th Dist] 1991, no writ)                 3
     City of Keller v. Wilson, 168 S.WJd 802 (Tex. 2005)                                                           ...... 4
     Delgado v Methodist Ho.sp, 936 S W2d 479 (Tex. App -Houston [14th Dist] 1996, no     WI it)                   ....... 5
     Fort BendCountyv Wilson, 825 S W2d 251 (Tex. App . -Houston [14th Dist] 1992, no writ).                            .3
     GTE Comm'n Sys. v. Janner, 856 S. W.2d 725 (Tex . 1993)...                                                  . ... .A
     Hamilton v. Pechacek, 319 S.W 3d 801 (Tex. App-Fort Worth 2010, no pet)                                             4
     Moselq v Hernandez, 797 S. W 2d 240 (Tex. App -Corpus Christi 1990, no writ)                                   ..... 3
     Nath v Texas Children's Hosp, 375 SW 3d 403 (Tex. App -Houston [14th Dist] 2012, pet filed)                       .5
     Scott v. Gallagher, 209 S WJd 262 (Tex. App -Houston [!st Dist] 2006, no pet)                                 A, 5
     Tex &NewOrleansRR Co v Compton, 136S.W2d 1113(1940)                                                           ...... 5
     Winters v. Parker, 178 S W3d 103 (Tex App . -Houston [!st Dist] 2005, no pet)                                    ... 7
     Statutes
     TEX Crv PRAC &REM.CODE§ 14002 .                                                                                   .3
\'
     TEX crv. PRAC. & REM. CODE § 14 . 003                                                                          3,4
     TEX Gov' I CODE § 22 .004(g) .                                                                                 3,5
     Rules
     FED R Crv p 12(b)(6) .                                                                                            .3
     TEX R crv p 13.                                                                                                     4
     TEX R Crv p 47(a).                                                                                                 5
     TEXR Crv p 91a . .                                                                                      passim
     Session Laws
     Act of May 25, 2011, 82nd Leg., R.S., ch. 203 (HB 274} .                                                    . I, 6
     Articles
     Angela Morris, Texas Lawyer Blog (Nov 16, 2012), http://texaslawyertypepad . com/texas_ lawyer_blog
       /2012/11 /high-court-approves-rules-for-dismissal-expedited-proceedings . html .                             . .6
     Justices Jane Bland, Bill Boyce, and Greg Perkes, What's Appealing About the New Di.smissal and Expedited
       Trial Rules?, presented at the 23rd Annual Conference on State and Federal Appeals, June 13-14, 2013             3
     !Ort Reform Clo.sing the Lottery, THE ECONOMIST, Dec. IO, 2011; see also Press Release fiom the Office of
       Gov Rick Perry, Lawsuit Reforms Cut Down on Frivolous Claims, Expedite Justice for the Deserving (July
       27, 2011 ), http://governor .state tx us/news/press-release/I 6430/ .                                            I




                                                            ii
    Rule 91A Motions to Dismiss                                                                            Chapter 4


                                                                   SECTION 1.01 Amends Section 22 . 004,
    RULE 91A MOTIONS TO                                            Government Code, by adding Subsection
    DISMISS                                                        (g), as follows:

    I.     LEGISLATIVE HISTORY OF RULE 91A                           (g)    The supreme comt shall
           Earlie1 this yea1, the Texas Sup1eme Court                adopt rules to p1ovide fo1 the
    app1oved Texas Rule of Civil Procedme 9la, which                 dismissal of causes of action that
    allows defendants to seek dismissal of any cause of              have no basis in law 01 fact on
    action that has no basis in law 01 fact                          motion and without evidence.
           Rule 9la introduces Texas lawye1s to a new                The mies shall provide that the
    motion to dismiss that is one of the many production             motion to dismiss shall be
    of House Bill 274, which became effective on                     granted 01 denied within 45 days
    Septembet l, 2011. 1 House Bill 274 gained national              of the filing of the motion to
    attention as a "loser pays" tOJt refotm law intended to          dismiss The mies shall not apply
    streamline litigation and discourage ftivolous                   to actions under the Family Code
    lawsuits . 2 To accomplish these goals, the Legislatme
    enacted a statute requesting that the Texas Supreme       2     Mandatory Awrud of Attorney's Fees to
    Comt to draft and adopt mies creating a new motion              Prevailing Patty
    to dismiss with a mandato1y award of attorney's fees            The second statute added by House Bill 2 74
    to the prevailing patty.                                  provides fo1 a mandato1y award of attorney's fees to
           Rule 9la's motion to dismiss p1ovides an           the prevailing patty
    oppo1tunity for a defendant to obtain an expeditious
    dismissal of meritless causes of actions Although              SECTION 1 02.. Amends Chapter 30,
    Rule 91 a provides litigators with a potentially useful        Civil Practice and Remedies Code, by
    tool, the rule's mandato1y awrud of attorney's fees to         adding Section 30 . 021, as follows:
    the prevailing pa1ty will dete1 many from using its
    procedures rathe1 than othe1, less expeditious,                  Sec 30021           AWARD OF
    methods for obtaining a pre-trial dismissal of                   ATTORNEY'S            FEES      IN
/
I   metitless claims                                                 RELATION         TO     CERTAIN
'                                                                    MOTIONS          TO     DISMISS.
    A..     Statutory Foundation for Rule 91a                        Requires the comt, in a civil
            House Bill 274 adds two statutes-section                 proceeding, on a ttial comt's
    22 004(g) in the I exas Government Code and section              granting 01 denial, in whole 01 in
    30 . 021 in the Texas Civil Practice and Remedies                prut, of a motion to dismiss filed
    Code-that lay the foundation for Rule 91 a and its               unde1 the mies adopted by the
    mandatmy awrud of attorney's fees                                supreme comt under Section
                                                                     22 .004(g), Government Code, to
    1.     The Legislature's Sketch of Rule 9la                      awrud costs and ieasonable and
          The first statute added by House Bill 274 gives            necessary attorney's fees to the
    the Texas Supreme Comt the task of adopting mies                 prevailing patty. Provides that
    creating a motion to dismiss claims that have no basis           this section does not apply to
    in law 01 fact:                                                  actions by 01 against the state,
                                                                     other governmental entities, 01
                                                                     public officials acting in theiI
                                                                     official capacity or under colo1 of
                                                                     law
    1
       See Act of May 25, 2011, 82nd Leg., RS, ch
    203 (HB 274)                                                   In response to these statuto1y directives, the
                                                              Texas Supreme Comt adopted Rule 91 a.
    2     See Tort Reform   Clo.sing the Lottery, IHE
    ECONOMIST, Dec 10, 2011; see also Press Release
    from the Office of Gov Rick Perry, Lawsuit
    Reforms Cut Down on Frivolous Claims, Expedite
    Justice for the Des·erving (July 27, 2011),
    http://govemor state tx us/news/press-
    release/16430/
            Rule 91A Motions to Dismiss                                                                        Chapter 4


            B..    Adoption of Rule 91a
                   Ihe Texas Supreme Court adopted Rule 9la on              (a) Ihe court may not rule on a
            February 12, 2013.. 3 Rule 9la provides the following               motion to dismiss if, at least 3
            rules:                                                              days before the date of the
                                                                                hearing, the respondent files a
                  91a. Dismissal of Baseless Causes of                          nonsuit of the challenged cause of
                  Action                                                        action, or the movant files a
                                                                                withdrawal of the motion.
                  91a .. 1 Motion and Grounds.. Except in
                  a case brought under the Family Code or                   (b) If the respondent amends the
                  a case governed by Chapter 14 of the                          challenged cause of action at least
                   I exas Civil Practice and Remedies Code,                     3 days before the date of the
                  a party may move to dismiss a cause of                        heating, the movant may, before
                  action on the grounds that it has no basis                    the date of the hearing, file a
                  in law or fact. A cause of action has no                      withdrawal of the motion or an
                  basis in law if the allegations, taken as                     amended motion directed to the
                  true, together with inferences reasonably                     amended cause of action.
                  drawn from them, do not entitle the
                  claimant to the relief sought A cause of                  (c) Except by agreement of the
                  action has no basis in fact if no                             parties, the court must rule on a
                  reasonable person could believe the facts                     motion unless it has been
                  pleaded .                                                     withdrawn or the cause of action
                                                                                has been nonsuited in accordance
                  91a.2 Contents of Motion .. A motion to                       with (a) or (b) In ruling on the
                  dismiss must state that it is made pursuant                   motion, the court must not
                  to this rule, must identify each cause of                     consider a nonsuit or amendment
                  action to which it is addressed, and must                     not filed as permitted by
                  state specifically the reasons the cause of                   paragraphs (a) or (b)
                  action has no basis in law, no basis in
                  fact, or both                                             (d) An amended motion filed in
                                                                                accordance with (b) restarts the
                  91a.3 Time for Motion and Ruling.. A                          time periods in this rule .
                  motion to dismiss must be:
                                                                        91a ..6      Hearing;      No Evidence
                      (a) filed within 60 days after the first          Considered.. Each party is entitled to at
                           pleading      containing       the           least 14 days' notice of the hearing on the
                           challenged cause of action is                motion to dismiss Ihe court may, but is
                           served on the movant;                        not required to, conduct an oral hearing
                                                                        on the motion. Except as required by
                      (b) filed at least 21 days before the             9la.7, the court may not consider
                          motion is heard; and                          evidence in ruling on the motion and must
                                                                        decide the motion based solely on the
                      (c) gr anted or denied within 45 days             pleading of the cause of action, together
                          after the motion is filed .                   with any pleading exhibits permitted by
                                                                        Rule 59
                  91a.4     Time for Response..       Any
                  response to the motion must be filed no               91a . 7 Award of Costs and Attorney
                  later than 7 days before the date of the              Fees Required.. Except in an action by or
                  hearing.                                              against a governmental entity or a public
                                                                        official acting in his or her official
                  91a.5   Eflect of Nonsuit or                          capacity or under color of law, the court
                  Amendment; Withdrawal of Motion.                      must award the prevailing party on the
                                                                        motion all costs and reasonable and
I"                                                                      necessary attorney fees incurred with
            3
               See TEX R Clv P 91 a, comment to 2013
'-.,-----
            change                                                      respect to the challenged cause of action



                                                                    2
        Rule 91A Motions to Dismiss                                                                                   Chapter 4


               in the trial court The court must consider           by Rule 12(b)(6) of the Federal Rules of Civil
               evidence regarding costs and fees in                 Procedure because it allows a defendant to move for
~­             determining the award                                dismissal without filing a special exception and then a
I                                                                   summary judgment. 4 Unlike Rule 12(b)(6), which
               91a .. 8 Eflect on Venue and Personal                merely allows a party to file a motion asserting that
               Jurisdiction.      This rule is not an               the opposing party's pleading does not state a claim
               exception to the pleading requirement of             upon which relief can be granted, 5 Rule 9Ia contains
               Rules 86 and I 20a, but a party does not,            a number of rules specifically governing its motions
               by filing a motion to dismiss pursuant to            to dismiss
               this rule or obtaining a ruling on it, waive
               a special appearance or a motion to                  A.    Scope of Rule 91a 's Application
               transfer venue. By filing a motion to                      Rule 9Ia generally applies to all civil
               dismiss, a party submits to the court's              proceedings with two exceptions First, as required
               jurisdiction only in proceedings on the              by the Legislature, Rule 9Ia does not apply to cases
               motion and is bound by the court's ruling,           brought under the F amity Code . 6 Second, Rule 9 I a
               including an award of attorney fees and              does not apply to inmates' in /Olma pauperis
               costs against the party .                            lawsuits, which are governed by Chapter I 4 of the
                                                                    Texas Civil Practice and Remedies Code 7
               91a . 9         Dismissal      Procedure             (Chapter I 4 contains its own distinct dismissal
               Cumulative.. This rule is in addition to,            mechanism 8)
               and does not supersede or affect, other
               procedures that authorize dismissal.                 4
                                                                       See, e g, Justices Jane Bland, Bill Boyce, and
               Comment to 2013 change: Rule 9la is a                Greg Perkes, What's Appealing About the New
                                                                    Dismissal and Expedited Trial Rules?, presented at
               new rule implementing section 22. 004(g)
                                                                    the 23rd Annual Conference on State and Federal
               of the Texas Government Code, which                  Appeals, June 13-14, 2013, at I, 7-10 (citing Fort
               was added in 20 I I and calls for rules to           Bend County v Wilson, 825 S.W2d 251, 253 (Tex
               provide for the dismissal of causes of               App -Houston [I 4th Dist] I 992, no writ);
I              action that have no basis in law or fact on          C'entennial Ins v. Commercial Union Ins , 803
    '          motion and without evidence. A motion                S.W2d 479, 482 (Tex. App.-Houston (14th Dist]
               to dismiss filed under this rule must be             1991, no writ); and Moseley v Hernandez, 797
               ruled on by the court within 45 days                 S W 2d 240, 242 (Tex App -Corpus Christi I 990,
               unless the motion, pleading, or cause of             no writ)
               action is withdrawn, amended, or                     5
                                                                         FED R Clv P 12(b)(6).
               nonsuited as specified in 91 as. If an
               amended motion is filed in response to an            6
                                                                       TEX R C!V P. 9la I; TEX Gov'r CODE §
               amended cause of action in accordance                22.004(g) ("The rules shall not apply to actions
               with 91a5(b), the court must rule on the             under the Family Code . ").
               motion within 45 days of the filing of the           7
               amended motion and the respondent must                    TEX. R Clv p 9la I; '"e TEX. C!V PRAC &
                                                                    REM CODE§ 14 . 002
               be given an opportunity to respond to the
               amended motion The term "hearing" in                 8
                                                                       TEx. CIV PRAC. & REM CODE§ 14 003 Section
               the rule includes both submission and an             14 003 allows for dismissal of an inmate's claim ifa
               oral hearing      Attorney fees awarded              court finds that the allegation of poverty in the
               under 9Ia.7 are limited to those                     affidavit or unsworn declarations is false, the claim
               associated with the challenged cause of              is frivolous or ·malicious, or the inmate filed the
               action, including fees for preparing or              required affidavit or unsworn declaration knowing
               responding to the motion to dismiss .                that it was false Id. § 14 003(a) In determining
                                                                     whether a claim is frivolous or malicious, a trial
                                                                    court may consider whether the claim's realistic
        II..   NUIS AND BOLTS OF A RULE 91A
                                                                    chance of ultimate success is slight, the claim has no
               MOTION TO DISMISS                                    arguable basis in law or in fact, it is clear that the
                                                                    party cannot prove facts in support of the claim, or
              Rule 9 I a provides guidelines for a new motion       the claim is substantially similar to a previous claim
        to dismiss, which has been widely compar·ed, and not        filed by the inmate because the claim arises from the
        entirely accurately, to the motion to dismiss allowed       same operative facts



                                                                3
     Rule 91A Motions to Dismiss                                                                                 Chapter 4


     R      Rule 91a 's Basis for Dismissal                       prevents a court from considering evidence . 15 This
            Rule 9ia allows dismissal of any cause of             lack of evidentiary and factual issues focuses a
~'   action that "has no basis in law or fact " 9 This same       court's inquiry under Rule 9la
'    pluase is also used in Rule 13 10 and a substantially              Courts are likely to dismiss causes of action
     similar phrase is used in Chapter l 4ll          Texas       under Rule 91 a in three circumstances: (I) when the
     appellate courts have analyzed the meaning of this           cause of action is not recognized by Texas law;
     phrase in reviewing sanctions imposed under Rule 13          (2) when the pleading alleges facts that negate a
     and dismissals under Chapter 14           The existing       cause of action; and (3) when pleading exhibits,
     jurisprudence regarding these rules and statutes may         attached pursuant to Rule 59, demonstrate that
     provide some guidance in understanding Rule 9la;             claimant is not entitled to the relief sought as a matter
     however, certain distinct differences among the              law.
     schemes undermine the similarities and make direct
     comparisons difficult                                        a      A claim may be dismissed when the cause of
                                                                         action alleged is not recognized by Texas law.
     L      No Basis in Law                                              Courts need not delve into any evidence to
            Under Rule 91a, a claim has no basis in law if        determine whether a cause of action is recognized by
     "the allegations, taken as true, together with               Texas law When a claimant alleges a cause of action
     inferences reasonably drawn from them, do not entitle        that is not recognized by Texas law (e . g ., a claim for
     the claimant to the relief sought." 12 Rule 91a's            negligent infliction of emotional distress), 16 the cause
     analysis of the legal basis for the relief a plaintiff       of action could be dismissed under Rule 9la
     seeks presents a relatively straightforward question:               Interestingly, unlike Rule 13, Rule 91a does not
     Do the allegations in the pleadin& state a cause of          recognize that a claim might have a basis in law if
     action that would authorize relief? 1                        "warranted by good faith argument for the extension,
                                                                                                                   17
            Unlike Rule 13, Rule 91a does not require a           modification, or reversal of existing law.."          The
     trial court to engage in any factual determination           absence of this language may indicate that Rule 91a
     regarding the motives involved in filing the pleaded         provides a more stringent test for a claimant's legal
     allegations 14 Io the contrary, Rule 91a expressly           contentions than Rule 13
     9
(         TEX R Crv p 9lal                                        b      A claim may be dismissed based on the facts
'                                                                        alleged in the pleading
     10
          Rule 13 permits sanctions against an attorneys                 Dismissal under this portion of Rule 9la may
     and parties who file a "groundless" pleading in bad          be appropriate when the pleading, on its face, reveals
     faith or for the purpose of harassment TEX R. Crv            that a claimant is not entitled to the relief sought
     P. 13 Rule 13 defines "groundless" as "no basis in
                                                                  because the alleged facts are legally insufficient to
     law or fact and not warranted by good faith
     argument for the extension, modification, or reversal        provide the claimant with a valid cause of action
     of existing law . " Id                                       Such allegations, even taken as true, would not entitle
                                                                  a claimant to any relief. 18
     11
         TEX CIV PRAC. & REM. CODE § 14 003(a)                           For example, dismissal under Rule 91 a may be
     (stating that in determining whether to dismiss a            appropriate if a plaintiff alleges that by not erecting a
     claim, a court may consider whether "the claim has           railroad crossing sign a railroad company negligently
     no atguable basis in law or in fact" (emphasis               caused an automobile to drive into the sixtieth car of
     added))                                                      a slow-moving train because if the automobile's
     12
          Id                                                      driver could not see the train, he could not have seen
     13
         see Scott v. Gallagher, 209 S.W.3d 262, 266
     (Tex . App-Houston [!st Dist] 2006, no pet);
     Hamilton v Pechacek, 319 SWJd 801, 809 (Tex
                                                                  15
     App . -Fort Worth 2010, no pet) (explaining that a                TEX R Crv P 9la.6.
     claim has no arguable basis in I.aw under Chapter 14         16
     if the claim presents an "indispuiably meritless legal         &e Boyles v Ken, 855 S.W.2d 593, 594 (Tex
     theory")                                                     1993)
                                                                  17
     14
        See GTE Comm 'n Sys. v Tanner, 856 SW 2d                       Compare TEX. R Crv P 9la. l with TEX. R Crv
     725, 731 (Tex. 1993) (explaining that Rule 13 does           p 13
     not allow sanctions unless the pleading is groundless
(_   and is also brought in bad faith or for the purpose of
                                                                  18
                                                                    See City of Keller v Wilson, 168 S.W 3d 802,
     harassment).                                                 811-17 (Tex 2005).



                                                              4
       Rule 91A Motions to Dismiss                                                                                      Chapter 4


       a crossing sign either. 19 These facts, even taken as           court dismisses a claim under Chapter 14 without an
       trne, would not entitle a claimant to any relief'0              evidentiary hearing, appellate courts presume that the
              Rule 91a dismissal is unlikely to be applicable          claim must have been dismissed for having no
       in most cases based on facts alleged in a pleading              arguable basis in law rather than in fact") Rule 91a,
       because in most circumstances, claimants are able to            on the other hand, expressly for bids any evidentiary
       allege facts that satisfy Texas's notice pleading               hearing 26
       requirements21 while avoiding the specificity that                    Absent an evidentiary hearing, one might ask
       could result in dismissal of their claims                       how a court could possibly evaluate whether a
                                                                       pleading advances facts that no reasonable person
       c     A claim may be dismissed based on exhibits                could believe." And if a trial court does dismiss a
             attached to any pleadings pursuant to Rule 59             claim as having no basis in fact, what does that
             Rule 91 a allows courts to consider exhibits              indicate about the attorney who filed the petition?
       attached to a pleading pursuant to Rule 59,2' Thus, if
       the parties simply disagree over the proper                     C      Rule 91a Deadlines
       foterpretation of a document attached to a pleading                    Rule 91 a guarantees a ruling on a motion to
       pursuant to Rule 59, a Rule 91a motion to dismiss               dismiss no later than 45 days from the date the motion
       may provide a procedural vehicle well-suited to                 is filed 28 This deadline, along with others in Rule
       resolving such a dispute.        For example, in an             91 a, promises a speedy resolution of the motion to
       insurance coverage dispute in which the facts are not           dismiss
       disputed and the insurance policy is attached to the
       pleadings, Rule 91a may provide a procedural vehicle                  Filing the Motion
       for obtaining an expeditious ruling on coverage .                     A party must decide whether to file a Rule 91 a
                                                                      motion to dismiss soon after the petition is served
       2     No Basis in Fact                                         The motion must be filed within 60 days after service
             Rule 91 a states that a claim has no basis in fact       of the first pleading containing the challenged cause
       if "no reasonable person could believe the facts               of action. 29 Rule 91a does not provide an exception
       pleaded " 23 This definition seems difficult to apply in       to the due order of pleading requirements for motions
       the absence of any evidence to place the pleaded facts         to transfer venue and special appearances. But a
       in context                                                     party can file and obtain a ruling on a Rule 91 a
(            Neither Rule 13 nor Chapter 14 provide any               motion to dismiss without waivin~ a special
       help with this problematic definition because both             appearance or motion to transfer venue 3
       allow for evidentiary hearings . 24 (Jn fact, when a
                                                                      2     Setting a Hearing
       19
         Id at 816 (citing Tex & New Orleans RR Co v                        The motion to dismiss must be filed at least 21
       Compton, 136 SW 2d 1113, 1115 (1940))                          days before the motion is heard and may be
                                                                      withdrawn until 3 days before the hearing 31 When
       20   Id
                                                                      25
       21
                                                                           See, e g, SCott, 209 S W .3d at 266
          See TEX. R Crv P 47(a) (stating that a pleading
                                                                      26
       should include "a short statement of the cause of                  TEX. R Clv P. 91a 6 (implementing TEX GOV'!
       action sufficient to give fair notice of the claim             CODE § 22 004(g), which requires implementation of
       involved").                                                    rules for dismissal of causes of action that have no
       22
                                                                      basis in law or fact on motion and without evidence)
            TEX R Crv. p 91a 6
                                                                      27
       23
                                                                        Birdo v Williams, 859 S.W.2d 571, 572 (Tex
            Id                                                        App-Houston [!st Dist] 1993, no writ) ("When
       24
                                                                      the trial court, as in the present case, dismisses a
           see Nath v Texas Chi!dren'.s Hosp, 375 S.WJd               cause [pursuant to Chapter 14] without a fact
       403, 427 (Tex. App.-Houston [14th Dist] 2012,                  hearing, the trial court could not have determined the
       pet. filed) (explaining that a trial court may examine         suit had no arguable basis in fact" (emphasis
       the facts and circumstances at the time of filing the          added))
       petition in order to determine whether a claim is
       without evidentiary support, i.e., has no basis in fact        28
                                                                           IEX.R CIV P 91aJ(c)
       or law); Delgado v. Methodist Hosp, 936 S W.2d
                                                                      29
       479, 487-88 (Tex. App.-Houston [14th Dist]                          TEX. R CIV. p 91aJ(a)
       1996, no writ) (finding a claim to be groundless
(___   under Chapter 14 when the plaintiff presented no
                                                                      30
                                                                           TEX R CIV P 9!a.8.
       evidence of"extreme and outrageous" conduct) .                 31
                                                                           TEX R Clv P 91a 3(b), 9la 5(a)


                                                                  5
             Rule 91A Motions to Dismiss                                                                                        Chapter 4


             setting a Rule 9la hearing, a paity should be awaie             determination to the contents of the motion to
             that the trial court's deadline to rnle on the motion is        dismiss
    r--      calculated from the date the motion is filed, not from
1

             the date of the hearing 32 The court is not required to         E..    Mandatory Award of Attorney Fees
             conduct an oral hearing on the motion 33                               Rule 9la includes a mandatory award of"costs
                                                                             and reasonable and necessaiy attorney fees incurred
             3..    Responding to the Motion                                 with respect to the challenged cause of action in the
                    A respondent must file its response to the               trial court" to the prevailing party 41 This provision
             motion no later than 7 days before the motion is                implements section 30 .021 of the Civil Practice &
             heaid .34 Up until 3 days before the motion is heard, a         Remedies Code, which was enacted by House Bill
             claimant may either nonsuit or ainend the challenged            274 42
             cause of action 35                                                     In the original version of House Bill 274,
                    If the respondent ainends the challenged cause           section 30 021 would have "authorized" a tiial court
             of action at least 3 days before the date of the hem ing,       to award costs and attorney's fees However, during
             the movant may withdraw the motion or file an                   the legislative process, the Legislature changed this
             ainended motion at any time before the hearing 36               discretionaiy awaid of costs and attorney's fees to a
             Filing an ainended motion in response to an amended             mandatory award
             cause of action, restarts Rule 9la's time periods . 37                 In speaking about Rule 9la, one Texas
                                                                             Supreme Court justice has recognized that the
             4..    Obtaining a Ruling on the Motion                         mandatory award of attorneys' fees may affect the
                    Unless the movant timely withdraws the motion            frequency with which 9la motions ai·e filed:
             or the respondent timely nonsuits the challenged
             cause of action, a trial court must rule on the motion                 Whether the motion is granted or denied,
             absent an agreement of the parties to the contrmy 38                   the winning paity gets attorney fees So,
                    Notwithstanding any agreement of the paities,                   if you file a motion and lose, the other
             the trial court must grant or deny the motion no later                 side gets attorney fees So, pmties are
             than 45 days after the date the motion is filed . 39 Rule              going to have to think seriously about
             9la does not specify what happens if a trial court                     when to use it 43
             rules on a motion to dismiss after this 45-day
             deadline .                                                      III.  WILL RULE 91A PROVE IO BE A
                                                                                   USEFUL TOOL?
             n.     Contents of a Rule 91a Motion                                  Prior to the adoption of Rule 9la, Texas had no
                    A Rule 9Ia motion to dismiss must: (I) state             procedure for expeditiously obtaining dismissal of a
             that it is made pursuant to the rule, (2) identify each         meritless cause of action Parties could obtain the
             cause of action to which it is addressed, and (3) state         same result by other means For example, parties
             specifically the reasons the cause of action has no             could file special exceptions, which could result in
             basis in law, no basis in fact, or both. 40 These               dismissal of the claims if the respondent failed to
             requirements do not seem particularly onerous for the           amend its pleadings after the trial court sustained the
             movant; however, the rnle does limit the trial court's          special exceptions 44 If special exceptions did not

             32
                   See TEX. R CIV. P. 9laJ(c)
                                                                             41
             33
                                                                                 TEX. R C1v. P 91a 6.. This mandatory award
                   TEX. R CIV P 91a 6                                        does not apply to causes of action by or against a
             34                                                              government entity or a public official acting in his or
                   TEX R CIV P 9la4                                          her official capacity or under color of law Id
             "     TEX. R. C!V. P 91a5                                       42
                                                                                See Act of May 25, 2011, 82nd Leg., RS, ch.
             36
                   TEX. R CIV P. 9la5(b)                                     203, § 102 (HB 274)
                                                                             43
             37
                   TEX R CIV P 91a 5(d)                                         Angela Morris, Texas Lawyer Blog (Nov. 16,
                                                                             2012),        http://texaslawyer typepad com/texas_
             38
                   TEX R CIV. P. 91a 5(c)                                    lawyer_blog /201211 I/high-court-approves-rules-for-
                                                                             dismissal-expedited-proceedings .html.
             39
                   TEX R CIV. p 9la3(c).
    (                                                                        44
                                                                                See, e.g, Winters v Parker, 178 SWJd 103,
    "-----   40
                   TEX R CIV P 91a.2                                         105-06 (Tex. App.-Houston [!st Dist] 2005, no
                                                                             pet).


                                                                         6
      Rule 91A Motions to Dismiss                                  Chapter 4


      result in dismissal, parties could also pursue summary
      judgment
r-,          Rule 9la's promise of an expeditious ruling on
      a motion to dismiss makes it a potentially usefol tool
      in defending against a claim, but its mandatory award
      of attorney's fees will make any lawyer pause before
      using it The costs and attorney fees involved in
      filing or responding to a motion to dismiss should
      typically be relatively inexpensive compared to the
      ultimate cost of trying a case or even obtaining
      summary judgment
             Nevertheless, the mandatory award of attorney
      fees will certainly cause both movants and
      respondents to approach Rule 91 a with some degree
      of caution It will no doubt deter many potential
      movants from filing such a motion. However, it will
      also place pressure on respondents to take a serious
      look at the causes of action alleged .
             As lawyers become familiar with this rule, it
      will be interesting to see how often Rule 9 la motions
      are filed and, once filed, how often the motion
      survives to the hearing without the movant
      withdrawing the motion or the respondent non-suiting
      or amending the challenged causes of action.




(_


                                                               7
Tab 7
                                                                          1



         1                          REPORTER'S RECORD

     2                           VOLUME 1 OF 1 VOLUME(S)
         3                 TRIAL COURT CAUSE NO. 2014-CI-16674

     4       CEARTH FAIRE                       IN THE DISTRICT COURT
     5       VS ..                              BEXAR COUNTY,   TEXAS

     6 FMP SA MANAGEMENT GROUP,
       LLC, D/B/A FOOD MANAGEMENT
     7 PARTNERS, LLC, ALL JONES,
       ALLEN J . JONES,
     8 INDIVIDUALLY AND PETER
       DONBAVAND, INDIVIDUALLY                  150TH JUDICIAL DISTRICT
     9

    10
    11

    12                  MOTION TO ENTER DEFENDANTS' FIRST AMENDED
/
                           RULE 91.a PARTIAL MOTION TO DISMISS
I   13
    14
    15
    16               On the 9th day of April,   2015,   the following

    17       proceedings came on to be held in the above-titled

    18
    19
             and numbered cause before the HONORABLE ANTONIA
             ARTEAGA,    Judge Presiding, held in San Antonio, Bexar          l
    20       County,    Texas.
    21               Proceedings :reported by computerized stenotype

    22       machine.

    23
    24
    25


                           MARIA E. FATTAHI, CSR, RPR, CRR
                          Auxiliary Official Court Reporter
                                    (210) 335-1594
                                                       2


     1                     A P P E A R A N C E S



     3 MS . OLGA BROWN
       SBOT NO. 03155500
     4 Attorney at Law
       111 Soledad, Ste 1725
     5 San Antonio, Texas 78205
       Telephone:    (210)226-1550
     6            ATTORNEY FOR PLAINTIFF

     7

     8
         MR. JUSTIN BARBOUR
     9   SBOT NO. 24055142
         Schmoyer Reinhard, LLP ·
    10   17806 IH 10 West, Ste. 400
         San Antonio, Texas 7 82 5 7
    11   Telephone:    (210)447-8033
                    ATTORNEY FOR DEFENDANTS
    12

(   13
    14
    15
    16
    17
    18
    19
    20
    21
    22
    23

    24
    25
(
'
                    MARIA E. FATTAHI, CSR, RPR, CRR
                   Auxiliary Official Court Reporter
                             (210) 335-1594
                                                                                                          3


         1                           VOLUME 1 OF 1 VOLUME(S)
                             ORDER GRANTING DEFENDANTS' FIRST AMENDED
         2                      RULE 91a PARTIAL MOTION TO DISMISS

             3

         4       APRIL 9' 2015                                                           PAGE     VOL.

         5       Appearances,.                                                            2           1

         6       Index ...                                                                3           1

         7       Proceedings.,.                                                           4           1

         8       Court's Ruling.,.         "   •)   .,   .   "                            7           l

         9       Adjournment ..       '   .. . "         "   "                            7           1

        10       Court Reporter's Certificate ..                                          8           1

        11

        12                                          WITNESS INDEX

I       13       PLAINTIFF'S WITNESS (ES)                        DIRECT    CROSS   VOIR DIRE     VOL.
'
        14       (None)

        15       DEFENDANTS' WITNESS (ES)                        DIRECT    CROSS   VOIR DIRE     VOL .

        16       (None)

        17

        18       PLAINTIFF'S EXHIBIT(S)
                                                    EXHIBIT INDEX
                                                                                                              II
        19       NO . DESCRIPTION                                OFFERED    ADMITTED           VOL.           '
        20       (None)

        21       DEFENDANTS' EXHIBIT($)

        22       NO . DESCRIPTION                                OFFERED    ADMITTED          VOL.

        23       (None)

        24
        25
(
    '
                               MARIA E,. FATTAHI, CSR, RPR, CRR
                              Auxiliary Official Court Reporter
                                        (210) 335-1594
                                                                                       4



         l                     THE COURT:       2014-CI-16674 Cearth Faire

     2       versus FMP SA Management Group,           d/b/a Food Management,

         3   Partners,    LLC, All Jones,       LLC, Allen J.    Jones,

         4   Individually and Peter Donbavand,           Individually.

     5                        Let the record reflect that we have Mr.

     6       Barbour here on behalf of ....

     7                        MR.    BARBOUR:     FMP SA Management.

     8                        THE COURT:        And we have Ms.    Brown here on

     9       behalf of?

    10                        MS .   BROWN:     Cearth Faire.

    11                        THE COURT:        Thank you .    And today we're

    12       here on a motion to enter,          and I have been given the

    13       proposed order by Mr.       Barbour titled Order Granting

    14       Defendant's First Amended Rule 9la Partial Motion to

    15       Dismiss.

    16                        And,    specifically, Ms.       Brown, what

    17       objections,    if any,    do you have to the language?           If you

    18       could direct the Court to the exact language,                which

    19       paragraph,    and how you'd like to it be to changed.

    20                        MS .   BROWN:     Your Honor,   we strictly object

    21       to the part of the order that orders the plaintiff's

    22       claim for promissory estoppel be dismissed and I have

    23       arguments and

    24                        THE COURT:        So specifically is that --

    25                        MS .   BROWN:        and the --
(
                           MARIA E. FATTAHI, CSR, RPR, CRR
                          Auxiliary Official Court Reporter
                                    (210) 335-1594
                                                                                 5


     1                       THE COURT:      Ms. Brown --

     2                       MS. BROWN:      -- and the

         3                   THE COURT:      Ms. Brown,   I need to know

     4       specifically is that on Paragraph 2 or paragraph l?

     5                       MS. BROWN:      Where the order reads "it is

     6       further ordered that the plaintiff's claim for

     7 promissory estoppel,'' I would like for              ''promissory

     8       estoppel'' to be deleted from the order.

     9                       THE COURT:      And do you believe that -- and

    10       you were here initially on what date?

    11                       MR . BARBOUR:     On March 18th, Your Honor.

    12                       THE COURT:      On March 18th, did you -- you

(   13       disagree that the Court granted summary judgment with
'
    14       regard to promissory estoppel?

    15                       MS. BROWN:      No,   Your Honor.   I don't agree

    16       with that and here's the reason why.

    17                       THE COURT:      What I want to know is do you

    18       believe I ordered it on that day or you do not believe I

    19       ordered it that day?                                                    !

    20                           '
                             MS. BROWN:      You ordered it that day, but I

    21       want to state on the record an objection to that because

    22       Mr.   Barbour misrepresented to you the fact that the rule

    23       required for us to nonsuit that claim and that is

    24       definitely not what the rule says.

    25                      THE COURT:       I'm sorry, Ms. Brown.    On a
(
                         MARIA E. FATTAHI, CSR, RPR, CRR
                        Auxiliary Official Court Reporter
                                  (210) 335-1594
                                                                                6

I
    '
         1     motion to enter,   it is strictly an administerial hearing

         2     wherein I memorialize what took place in our initial

             3 hearing which was in March
         4                     So if you would like to ask the Court to

         5     reconsider,   I'd be happy to do that but it needs to be

         6     properly in a motion to reconsider .
         7                     But this today is simply a motion to enter

         8     the order that was the Court's back in March 18th of

         9     2015.

        10                     MS . BROWN:   But on the other hand,      Your

        11     Honor,   I do not want to try this Rule 91a motion by
        12     consent .

I       13                     I do not want to bring that    --   my
'
        14     objection to that for the first time in appeal,          so I

        15     want a record that today before this Court that I have
        16     requested and are stating and prepared to argue why the

        17    promissory estoppel section of this order must be

        18    deleted .

        19                     THE COURT:    I respectfully disagree .

        20                     Are there any other objections to any
        21    other language which you believe the Court did not --

        22    the Court ruled upon and it improperly or not correctly
        23    stated according to the Court's rule -- not that you
        24    disagree with but you think that any language in here

        25    does not reflect the Court's ruling from March?
(
                            MARIA E . FATTAHI, CSR, RPR, CRR
                           Auxiliary Official Court Reporter
                                      (210) 335-1594
                                                                                         7

,
I
      1                     MS .   BROWN:   The other objection that I

      2   have,     Your Honor,    is that Mr. Barbour included in his

      3   order that the defendants be awarded reasonable
      4   attorney's fees incurred with respect to the challenged

      5   causes of action .

      6                     THE COURT:      Would you agree or disagree,

      7 Mr. Barbour,       that the Court did not award attorney's

      8   fees back in March?

      9                     MR.. BARBOUR:      At that time,         no,    Your

     10   Honor,    but Rule 91a does make an award of fees mandatory

     11   upon granting that motion.

     12                     THE COURT:      Okay..     Again,    I   did not order

I    13   in March .     I am not going to include it in my order of
',

     14   today .
     15                     If you would like for me to reconsider it,

     16   you know the pr op er procedure .           Your request as to the

     17   last sentence of the order requested it is hereby

     18   granted .
     19                     Is there any other objections that you

     20   have to the proposed order, Ms.             Brown?

     21                     MS . BROWN:     No .     None further,         Your Honor.

     22   Thank you so much .

     23                     THE COURT:      Thank you.         Then we'll stand

     24   adjourned .     Thank you very much.

     25
(
                         MARIA E. FATTAHI, CSR, RPR, CRR
                        Auxiliary Official Court Reporter
                                 (210) 335-1594
                                                                             8


       1       STATE OF TEXAS
               COUNTY OF BEXAR
       2

           3            I, Maria E.   Fattahi, Official Court Reporter in

       4       and for the 57th District Court of Bexar,       State of

       5       Texas, do hereby certify that the above and

       6       foregoing contains a true and correct transcription

       7       of all portions of evidence and other proceedings

       8       requested in writing by counsel for the-parties to

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

      10       in the above-styled and numbered cause, all of which

      11       occurred in open court or in chambers and were

      12       reported by me .
.
I     13            I further certify that this Reporter's Record
'··
      14       of 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 $56.00 and               II
      18       was paid/will be paid by Ms. Olga Brown.

      19

      20
                    WITNESS MY OFFICIAL HAND on this the 20th day of

               April,    2015.
                                                                                 I
      21
                                          /)~Wt£                                 I
      22
      23
                                           Haf~t
                                           Texas
                                                 E. Fatta
                                                 CSR 3566, Exp.
                                           Auxiliary Official Court
      24                                   101 W. Nueva, Ste. 301
                                           San Antonio, Texas 78204
      25                                   Telephone: 210-335-1594
                                           E-mail: maria.fattahi@bexar.org
(
Tab 8
                                                               1



 1                        REPORTER'S RECORD
                        VOLUME 1 OF 1 VOLUME
 2              TRIAL COURT CAUSE NO. 2014-CI-16674

 3
     CEARTH FAIRE                  ) IN THE DISTRICT COURT
 4                                 )
                                   )
 5   VS.                           ) 150TH JUDICIAL DISTRICT
                                   )
 6                                 )
     FMP SA MANAGEMENT GROUP, LLC, )
 7   ET AL.                        ) BEXAR COUNTY, TEXAS
     *******************************************************
 8
                       MOTION FOR NEW TRIAL
 9
     *******************************************************
10

11

12

13

14

15       On the 6th day of May, 2015, the following came on

16   to be heard in the above-entitled and numbered cause

17   before the Honorable Antonia Arteaga, Judge presiding,

18   held in San Antonio, Bexar County, Texas:

19       Proceedings reported by computerized stenotype

20   machine.

21

22

23

24

25
                                                             2



 1                          APPEARANCES

 2

 3   MR. JEFFREY SMALL
     SBOT NO. 00793027
 4        12451 Starcrest Drive, Suite 100
          San Antonio, Texas 78216
 5        Phone: (210) 496-0611
               Appearing for Cearth Faire
 6

 7   MS. OLGA BROWN
     SBOT NO. 03155500
 8        111 Soledad Street, Suite 1725
          San Antonio, Texas 78205
 9        Phone: (210) 226-1550
               Appearing for Cearth Faire
10

11   MR. JUSTIN J. BARBOUR
     SBOT NO. 24055142
12        17806 West IH 10, Suite 400
          San Antonio, Texas 78257
13        Phone: (210) 447-8033
               Appearing for FMP SA Management Group, LLC,
14             et al.

15

16

17

18

19

20

21

22

23

24

25
                                                             3



 1                     CHRONOLOGICAL INDEX

 2                        VOLUME 1 OF 1

 3   MARCH 18, 2015
                                             PAGE     VOL.
 4
     Appearances..............................   2    1
 5
     Court Reporter's Certificate.............   28   1
 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
                                                                      4



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

 2                 THE COURT:     2014-CI-16674, Cearth Faire

 3   versus FMP SA Management Group, LLC, DBA Food Management

 4   Partners; All Jones, LLC; Allen J. Jones, individually;

 5   and Peter Donbavand, individually.

 6                 If I could have the attorneys please

 7   identify themselves for the record and whom they

 8   represent beginning on my left?

 9                 MR. SMALL:     Jeff Small for Cearth Faire.

10                 THE COURT:     Thank you, Mr. Small.

11                 MS. BROWN:     Your Honor, Olga Brown, also

12   for Cearth.

13                 THE COURT:     Good morning, Ms. Brown.

14                 MR. BARBOUR:     Good morning, Your Honor.

15   Justin Barbour for defendants.

16                 THE COURT:     Good morning, Mr. Barbour.

17                 MR. RAY:     Your Honor, I'm Robert Ray.     I'm

18   not counsel of record on this matter, but I am counsel

19   of record for one of the defendants in another cause of

20   action that has bearing on this one.

21                 THE COURT:     Okay.   So we're going to let

22   you have a seat and just hang out with us this morning.

23                 MR. RAY:     If you don't mind.

24                 THE COURT:     I don't mind at all.

25                 MR. RAY:     Thank you.
                                                                      5



 1                  THE COURT:    And it is currently 8:25, and

 2   we are scheduled to hear a motion for a new trial.         The

 3   Court has granted you 60 minutes in order to present,

 4   which is highly unusual in the 57th.      Ordinarily our

 5   motions for new trial are anywhere from 15 to

 6   30 minutes, but your legal assistant is quite

 7   persuasive, Ms. Brown.      So we agreed to go ahead and

 8   give you the full hour.

 9                  So with that, you have the floor.     Or is it

10   going to be you or Mr. Small?

11                  MS. BROWN:    Your Honor, I would like to

12   make the opening, have Mr. Barbour address it, and then

13   Mr. Small kind of close it if that's all right with Your

14   Honor.

15                  THE COURT:    Okay.   So you'd like to start

16   out and then -- well, this is what we'll -- give me the

17   reasons why you believe that I got it wrong the first

18   time.    And then if you'd like to allow Mr. Small to

19   chime in -- I don't need opening, I don't necessarily

20   need closing remarks at all, but we want to get straight

21   to the meat of the matter.

22                  Ms. Brown, I'll let you begin.

23                  And then, Mr. Small, you can take it up.

24                  And then we're going to hear from

25   Mr. Barbour.    If there's any reply necessary in between,
                                                                    6



 1   we will direct accordingly.

 2                   Go ahead, Ms. Brown.

 3                   MS. BROWN:    Thank you, Your Honor.

 4                   And once again, it's nothing that the Court

 5   did wrong at all, but here's where I -- the reason that

 6   we're asking this morning that you deny the motion on --

 7   and -- reconsider and deny the motion, frankly, for

 8   this, Your Honor:     Because the defendants --

 9                   THE COURT:    Let's be clear --

10                   MS. BROWN:    Yes.

11                   THE COURT:    -- there is no motion to

12   dismiss.

13                   MS. BROWN:    Yes.

14                   THE COURT:    Okay.

15                   MS. BROWN:    Because for the simple reason,

16   Your Honor, that the defendants did not meet the

17   requirements of 91(a).       That rule has very specific

18   rules.     And I would like to direct the Court's attention

19   to Rule 91(a)(2).     And it addresses contents of the

20   motion.    And this requirement that they did not meet

21   does not support the ruling of this Court in this way,

22   Your Honor:

23                   On February 3rd, 2015, the defendants filed

24   their last pleading, and it was an amended 91(a) partial

25   motion for dismissal.     Over a month later -- and it was
                                                                   7



 1   timely -- the petitioner filed an amended motion

 2   dropping the cause of action for promissory estoppel and

 3   adding oral gift of real estate.

 4                 Following that, Your Honor, the defendants

 5   were required to do one of two things.      They either had

 6   to amend their motion to dismiss or to withdraw their

 7   motion.   They did neither.     Even though in their

 8   response, Your Honor -- we stated this is a new cause of

 9   action that we're adding.     And in all fairness we filed

10   this 10 days before the March 18th hearing that Your

11   Honor entertained.

12                 Now, because they failed to meet this

13   91(a)(2) contents of the motion, the Court's ruling

14   cannot support the denial.

15                 91(a) -- the granting of 91(a), Your Honor,

16   is done in three instances.      And I'll be really brief.

17                 One is that there's not a recognized cause

18   of action in this state.      Oral gift of real estate is a

19   recognized cause of action in this state.

20                 The second instance in which the motion is

21   granted is if on the facts -- the facts of -- petitioner

22   cannot gain relief.   For example, if the petitioner in a

23   say auto accident pleads that the accident happened

24   15 years ago and there was no tolling statute, then on

25   its face that pleading is -- cannot bring relief to the
                                                                 8



 1   petitioner.    In that instance the motion to dismiss is

 2   granted.

 3                  The third one is when a petitioner attached

 4   an -- a document or a affidavit, let's say an insurance

 5   policy.    And the insurance policy definitely does not --

 6   states that there's no coverage or he's not a named

 7   insurer (sic).     And I've looked at all the cases, Your

 8   Honor, and it's only on those three case -- those three

 9   general groups of cases that a motion to dismiss is

10   granted.

11                  The Court in making a legal analysis of

12   whether or not to grant the motion must do this:     Do the

13   allegations of the pleading state a cause of action

14   which authorizes relief?

15                  Our cause of action for oral gift of real

16   estate is a viable cause of action.     It's a recognized

17   cause of action.

18                  And in that case, Your Honor, because it

19   was not challenged, it was not challenged by the

20   defendant --

21                  THE COURT:   What specifically do you say

22   was not challenged?     The cause of action on oral gift of

23   real estate?

24                  MS. BROWN:   That's correct, Your Honor.

25                  THE COURT:   Okay.
                                                                      9



 1                   MS. BROWN:   And like I said, he had to

 2   amend his motion or withdraw it, one of the two.        He did

 3   not do that.

 4                   And so, Your Honor, this -- the Court does

 5   not have discretion to determine whether or not the

 6   contents of the motion were met or not.      They either

 7   were met or they were not.

 8                   For example, he did not challenge and state

 9   specifically what his challenges were.      So, therefore,

10   this Court I believe should reconsider their ruling on

11   this and deny their cause of action.

12                   The same thing, Your Honor, applies for our

13   claim of conspiracy.     In his third amended petition for

14   -- to dismiss or in his third motion to dismiss --

15   excuse me.     Clear the record.   In his second amended

16   motion to dismiss, he alleges that there's no cause of

17   action because of intra-corporate immunity.

18                   I came back, Your Honor -- Mr. Small and I

19   came back and we amended our pleadings and said

20   basically the corporate officers were not acting in

21   their corporate duties.      They were acting as

22   individuals.

23                   Conspiracy is basically this:      One or more

24   individuals getting together to commit an unlawful act.

25   And so that too, Your Honor, is not supported by the
                                                                  10



 1   motion.

 2                   In other words -- in other words, he did

 3   not meet the legal requirements of the rule.        And,

 4   therefore, the ruling that the motion be granted cannot

 5   stand.

 6                   And basically, Your Honor, like I said, we

 7   pointed this out to the Court in the original hearing on

 8   March 18th.     We said he did not amend.

 9                   Mr. Barbour on behalf of the defendants

10   went on.     And even in the response that he filed

11   yesterday after --

12                   THE COURT:   I'm sorry, Ms. Brown, if I can

13   interrupt just a second.     You seem very clear on your

14   statements with regard to the arguments made on March

15   18th.

16                   MS. BROWN:   Yes.

17                   THE COURT:   Is there a transcript

18   available?

19                   MS. BROWN:   Yes, there is, Your Honor.

20                   THE COURT:   Okay.   Thank you.

21                   MS. BROWN:   And I have it with you (sic)

22   and -- because the defendants allege that we didn't

23   bring it up to the attention of the Court.        We did.

24                   THE COURT:   Okay.

25                   MS. BROWN:   And I have the transcript.     And
                                                                11



 1   it's page 6 lines 10 and 11 of the transcript.

 2                 THE COURT:     Thank you.

 3                 MS. BROWN:     And Mr. Small at that time also

 4   informed the Court that this proceeding is basically

 5   about pleadings.   That the rule strictly says the Court

 6   cannot entertain evidence.     What happened in that

 7   March 18th meeting was evidence.     But this whole 91(a),

 8   the new rule, is about pleadings.     Did the attorneys,

 9   Mr. Jeff Small and I, plead correctly oral gift of real

10   estate?

11                 We did.   It went unchallenged.    And,

12   therefore, Your Honor, we're saying please reconsider

13   and deny their motion in its entirety.

14                 THE COURT:     Thank you.

15                 Mr. Barbour, would you like to reply at

16   this point or would you like Mr. Small to go ahead.

17                 MR. BARBOUR:     I would yield to plaintiff's

18   discretion.   If Mr. Small feels like he can blend in at

19   this point, I would be happy to respond after that

20   but --

21                 MR. SMALL:     Your Honor, I don't have a

22   whole lot to add because Ms. Brown was very succinct.

23   Just using the language of the Rule 91(a)(5) says that

24   the Court may not rule on a motion to dismiss after

25   nonsuit or amendment.   So consequently the promissory
                                                                 12



 1   estoppel is beyond the Court's reach.

 2                And similarly 91(a)(2), you know, does say

 3   that -- that the pleadings must tell why -- it must

 4   address each cause of action.    Well, oral gift of real

 5   estate was in our fifth amended petition, but it was not

 6   in FMP's live 91(a) motion so consequently that too is

 7   beyond the Court's reach.

 8                So promissory estoppel is not in the fifth

 9   amended, but yet it was addressed and ruled on.     And I

10   would contend that according to the rule that promissory

11   estoppel and oral gift of real estate are both beyond

12   the Court's discretion.

13                THE COURT:     Thank you.

14                Mr. Barbour.

15                MR. BARBOUR:     Yes, Your Honor.   I'll get to

16   the substance of I think plaintiff's argument in a

17   moment, but first Your Honor hadn't quite asked whether

18   this objection was raised at the March 18th hearing,

19   which the motion to dismiss was originally argued.

20                Ms. Brown directed us to page 6, lines 10

21   and 11 of the hearing transcript, which I think is at

22   tab 3 of the binder that Your Honor has.

23                And as I read page 6 line 3 (sic), that's

24   actually me talking just giving an overview of

25   plaintiff's sexual harassment claim, which is not at
                                                                  13



 1   issue in the motion to dismiss at all.

 2                 THE COURT:     I believe it's page 6, line 10

 3   and 11 that she referenced.

 4                 MR. BARBOUR:     10 and 11, Your Honor, yes,

 5   Your Honor, that's what I'm looking at as well.     I

 6   apologize if I misspoke, but that is me giving an

 7   overview of plaintiff's sexual harassment claim under

 8   chapter 21, which isn't a target of the motion to

 9   dismiss at all.     That is certainly not plaintiff raising

10   an objection as to the fact that the contents of the

11   motion aren't directed to the oral gift or amended

12   conspiracy claim.

13                 So on that basis, Your Honor, there's

14   authority cited in our response indicating that the

15   parties have a duty to raise objections, to raise

16   concerns to the Court at their earliest opportunity.     In

17   this case that was indisputably at the March 18th

18   hearing at which these arguments were made.

19                 Plaintiff declined to raise these

20   objections at that time and instead argued the motion on

21   the merits.   I don't know why that would be, but that

22   was the tactic they chose, Your Honor.     So our

23   contention would be that any such arguments have been

24   waived at this point and would not be a ground to either

25   reverse the Court's decision on the motion to dismiss or
                                                                     14



 1   potential error on that point.

 2                   THE COURT:     Can we pause for just a second?

 3                   MR. BARBOUR:     Yes, Your Honor.

 4                   THE COURT:     Ms. Brown, did you mean to

 5   bring the Court's attention to a different part of your

 6   transcript?

 7                   MS. BROWN:     I will, Your Honor.    I'm going

 8   to have Mona look through it.          I must have quoted the

 9   wrong --

10                   THE COURT:     Okay.    Just let us know when

11   you're ready.

12                   Mr. Barbour, I'm going to allow you to

13   continue.

14                   MR. BARBOUR:     Yes, Your Honor.

15                   So that initial point aside, Your Honor,

16   next we're turning to the property-related claims where

17   Ms. Faire is in essence attempting to ask the Court at

18   trial or at some point to compel defendants to transfer

19   title to a home that she's living in currently without

20   any written agreement between the parties whatsoever

21   under the guise that there was a promise of a gift at

22   some point that this home would be transferred.

23                   Ms. Brown, as I understand, is arguing that

24   this oral gift claim wasn't before the Court at the

25   March 18th hearing and therefore can't be the subject of
                                                                 15



 1   the motion to dismiss.

 2                   In my perspective, I see a few different

 3   issues with her contention here.     The first, Your Honor,

 4   is that rule 91(a)(5)(a) clearly describes what a

 5   plaintiff has to do or what a party has to do if they

 6   don't wish to take a claim all the way through the

 7   motion to dismiss hearing.

 8                   Mr. Small has suggested that a claim is

 9   nonsuited or amended, that it's beyond the Court's

10   reach.     With all due respect to Mr. Small, Your Honor, I

11   don't believe that's correct.

12                   Rule 91(a)(5)(a) specifically says the

13   Court may not rule on a motion to dismiss if at least

14   three days before the date of the hearing the respondent

15   nonsuits the challenge cause of action or the movant

16   files a withdrawal of the motion.

17                   We did not withdraw our motion, and

18   plaintiff very clearly did not file a nonsuit of her

19   claim of promissory estoppel.     Meaning, Your Honor, no

20   matter where we end up, as of the March 18th hearing,

21   the promissory estoppel claim is still both before the

22   Court and also it's also subject to that motion to

23   dismiss.

24                   Plaintiff is now alleging that she dropped

25   the promissory estoppel claim and instead amended this
                                                              16



 1   new claim for oral gift of real estate.

 2                They're not separate claims, Your Honor.

 3   They are the same claim entirely.   And plaintiff has

 4   merely repackaged the existing claim, which has been

 5   present in her petition under the guise of a promissory

 6   estoppel claim since late October trying to avoid the

 7   motion to dismiss through this kind of I would call

 8   gamesmanship potentially, Your Honor, but certainly a

 9   nonsubstantive change there.

10                It's reflected by plaintiff's pleadings,

11   there's no substantive difference between the nature of

12   the underlying allegations whatsoever between this

13   alleged promissory estoppel and the subsequent oral gift

14   claim.

15                Plaintiff's third amended petition, which

16   alleged the quote, unquote promissory estoppel claim

17   four times alleges that plaintiff was quote, unquote

18   gifted the property.

19                And then we move to the fourth petition

20   which is filed in response to the motion to dismiss.

21   And then she removes the term promissory estoppel and

22   inserts the term oral gift of real estate suggesting

23   that it's a different claim and that we then have to

24   kick this can down the road later on to another motion

25   to dismiss hearing, but that's neither warranted nor
                                                                 17



 1   necessary, Your Honor.     It's all the same claim trying

 2   to compel a transfer of property in the absence of a

 3   statute of frauds.

 4                And specifically to this point, Your Honor,

 5   I would argue that plaintiff has conceded the fact that

 6   the oral gift claim is, in fact, addressed in the Rule

 7   91(a) motion to dismiss.

 8                On page 2 of her response to that motion,

 9   plaintiff argues, quote, by their Rule 91(a) motion,

10   defendants challenge plaintiff's claim for an oral gift

11   of real estate.

12                And then she continues on to some of the

13   merits of that.

14                But plaintiff admits in her response that

15   the oral gift claim is in fact challenged by the Rule

16   91(a) motion to dismiss.     And subsequently falling back

17   from that position trying to, you know, argue the exact

18   opposite at this point, Your Honor, has no basis

19   whatsoever and she's bound to her prior pleadings, which

20   admitted which claims were in fact addressed in that

21   motion.

22                And then finally, Your Honor, I would note

23   that I respectfully take issue I think with Mr. Small's

24   interpretation and Ms. Brown's interpretation of Rule

25   91(a) which seemingly would require the parties, you
                                                                18



 1   know, to constantly be amending their Rule 91(a) motion

 2   to dismiss every time an amended pleading is filed in

 3   response to it.     That's not what the rule requires.

 4                   The rule requires you state the basis on

 5   which there's no basis in law or no basis in fact for

 6   the claim alleged.

 7                   Our Rule 91(a) motion contends -- properly

 8   I believe -- that plaintiff's claim for a

 9   property-related claim trying to compel the transfer of

10   this home is barred by the statute of frauds, that she

11   has not shown any exceptions, you know, available to

12   that claim to show that even accepting all of her

13   allegations as true, she would be able to compel the

14   transfer of that property in the absence of a written

15   agreement.

16                   It doesn't matter whether you style the

17   argument as promissory estoppel, oral gift of real

18   estate, or whatever other claim plaintiff may conjure

19   later on in this litigation potentially.     The statute of

20   frauds is still the reason that claim fails.     That

21   defense and that argument is stated succinctly and

22   sufficiently under Rule 91(a) to articulate why

23   plaintiffs can't recover and their claim has no basis in

24   the law.     And, therefore, the motion to dismiss is

25   appropriate.
                                                                  19



 1                THE COURT:     Thank you, Mr. Barbour.

 2                Give me just one second please, Mr. Small.

 3                MR. SMALL:     Yes, ma'am.

 4                (Short pause.)

 5                THE COURT:     We're back on the record.

 6                Mr. Barbour, you're standing.       Was there

 7   something more?

 8                MR. BARBOUR:     As to the oral gift claim,

 9   Your Honor, I would finally note, none of plaintiff's

10   arguments contend that she has in fact alleged a

11   sufficient claim for this oral gift of real estate.      At

12   our hearing, we discussed in detail the fact that

13   plaintiff has not shown any present gift, any immediate

14   transfer of property as necessary to state that claim.

15   So all of these technicalities of Rule 91(a) aside,

16   which I also believe are baseless, at the end of the day

17   she still has not alleged a claim that stands up to

18   scrutiny for this transfer of real estate.       And,

19   therefore, Your Honor, I believe that it was, in fact,

20   appropriate for the Court to dismiss that

21   property-related claim.

22                Would the Court like me to address the

23   conspiracy claim at this time, as well?

24                THE COURT:     Yes.

25                MR. BARBOUR:     Yes, Your Honor.
                                                              20



 1                 Finally we turn to the conspiracy claim and

 2   plaintiff's argument again at this point is essentially

 3   that because she filed an amended petition in response

 4   to the motion to dismiss, that therefore this claim was

 5   somehow beyond the Court's reach and the Court could not

 6   reach the merits of whether or not she had alleged that

 7   conspiracy claim.

 8                 This is not within Rule 91(a) either, Your

 9   Honor.   Rule 91(a) requires that we file a motion to

10   dismiss, identify the cause of action in fact that it

11   can't go forward.   It allows the plaintiff the option to

12   either respond to the motion to dismiss or to amend her

13   pleadings, which it does, but the rule does not

14   foreclose the Court's ability to rule on a motion to

15   dismiss notwithstanding that amendment, that the Court

16   has full discretion to evaluate the merits of that claim

17   and to see whether there's a basis in law or a basis in

18   fact for that claim and to move forward.

19                 Plaintiff's reasoning to Rule 91(a), we

20   would indefinitely be cycling through and forever

21   amending our pleadings and amending our motions and

22   never reaching the goal of Rule 91(a), which is the

23   efficient resolution and dismissal potentially of

24   patently frivolous and baseless causes of action.

25                 THE REPORTER:   Would you please slow down.
                                                                21



 1                 MR. BARBOUR:     I apologize for that.   I

 2   apologize.

 3                 So there being no requirement that we have

 4   amended our Rule 91(a) motion in response to her amended

 5   petition, that arguments falls flat.

 6                 And again, Your Honor, I would turn to the

 7   merits of plaintiff's conspiracy claim.     And again at

 8   the March 18th hearing on the motion to dismiss,

 9   plaintiff was completely unable to identify a single

10   allegation in her petition that showed an unlawful or

11   illegal act taken by any of defendants whatsoever.

12   Therefore, that claim has no basis in law under the

13   wording of Rule 91(a)(1) because her allegations even

14   taken as true would not entitle her to the relief

15   sought.   Meaning if we took her petition and put it in

16   front of a jury and said everything in here is true,

17   they would not be able to render a verdict for her on

18   that conspiracy claim because there's no unlawful or

19   illegal acts alleged anywhere within that petition.

20                 And so for those reasons, Your Honor, we

21   would suggest that the Court was entirely proper in

22   dismissing plaintiff's property-related claims and her

23   conspiracy claims.   And respectfully I ask that the

24   Court deny the plaintiff's motion for new trial.

25                 THE COURT:     Thank you, Mr. Barbour.
                                                               22



 1                Mr. Small, round two.

 2                MR. SMALL:   Your Honor, having been engaged

 3   in an oral gift of real estate case in Kendall County

 4   for the best part of the last two years revolving around

 5   a supposed 1500 acre gift of a ranch, I can state

 6   categorically that I have yet to see one case dealing

 7   with an oral gift of real estate that equates that cause

 8   of action to promissory estoppel.    They are two

 9   different things.   And taking issue with counsel's

10   suggestion of what 91(a) does and does not permit,

11   91(a)(5) is titled effective nonsuit or amendment.    The

12   Court may not rule on a motion to dismiss if at least

13   three days before the date of the hearing, the

14   respondent files a nonsuit of the challenged cause of

15   action or the movant withdraws the motion.

16                And I would suggest that the cases say that

17   an amendment that drops a cause of action -- an amended

18   petition that drops a cause of action is effective

19   nonsuit of that particular cause of action.    And here

20   again --

21                THE COURT:   When you say you believe the

22   cases say, which cases are you --

23                MR. SMALL:   I was not prepared to present a

24   case to the Court, but I will be happy to provide that

25   authority to the Court and to Mr. Barbour because if --
                                                                    23



 1   I've run into case where even if you drop a defendant

 2   out of the caption on a case, you have effectively

 3   dropped them out of the case.       So, you know, that's the

 4   equivalent of a nonsuit.

 5                   THE COURT:     And so I'm going to ping-pong

 6   back to Mr. Barbour.

 7                   Mr. Barbour, would you agree or disagree

 8   that by dropping a cause of action that that is the

 9   effect of a nonsuit and so -- which is the -- then would

10   fall within the realm of subsection A?

11                   MR. BARBOUR:     I would not, Your Honor.   You

12   know, Rule 162 specifically provides for nonsuits to

13   occur and there's a nonsuit pleading a plaintiff has to

14   file or a claimant has to file obviously to nonsuit that

15   claim.   And under Texas' notice pleading standards, you

16   know, headings frankly are irrelevant to a plaintiff's

17   claim anyway.    You know, it's the content of the

18   pleading that we're looking at.       So whether a plaintiff

19   styles her claim as promissory estoppel or oral gift or

20   whatever the case may be, the underlying claim itself,

21   you know, does not change in light of that.

22                   So I think if the framers of Rule 91(a)

23   wanted to allow for the, you know, the amendment of the

24   pleading to withdraw that cause of action, they would

25   have provided for that, respectfully, Your Honor.       They
                                                                  24



 1   did not.   They specifically required a nonsuit, which is

 2   a very clear delineated bright-line action.     You're

 3   either forgoing the claim voluntarily and nonsuiting it

 4   or, you know, an amendment may or may not, you know,

 5   we're left in this gray area.   And plaintiff having not

 6   followed that very clear procedure to specifically and

 7   affirmatively disallow the promissory estoppel claim by

 8   nonsuiting it means that, you know, it's still there

 9   intertwined with this oral gift claim as conceded in her

10   response to the motion to dismiss.

11                 THE COURT:   Thank you, Mr. Barbour.

12                 And before we go any further, Mr. Small,

13   and right now the Court is of the mindset that I really

14   would like case law, but did we find within the

15   transcript from March 18th the portion where the

16   argument that was made this morning was in fact made on

17   March 18th?

18                 MR. SMALL:   Yes, ma'am.    It was Page 11

19   lines 10 and 11, not page 6.

20                 MS. BROWN:   Apologize for that, Your Honor.

21                 THE COURT:   It's okay.    Page 11, lines --

22                 MR. SMALL:   Page 11, lines 10 and 11 are

23   the most succinct place I think.

24                 (Short pause.)

25                 THE COURT:   Mr. Barbour, would you like to
                                                                    25



 1   respond at this time?

 2                  MR. BARBOUR:     I would, Your Honor.    As I

 3   read lines -- page 11, lines 10 and 11, you know,

 4   there's -- they have not objected to our current

 5   pleading.    I see that.    I don't see any argument there

 6   that the motion to dismiss is defective or can't proceed

 7   based on its current content whatsoever.      They were an

 8   affirmative duty.    If they're wanting to argue that the

 9   quote, unquote, contents of the motion as provided under

10   Rule 91(a)(2) must specifically address it and that it's

11   insufficient, that's not at all spelled out there, Your

12   Honor.    And even if they did, they never asked the Court

13   for a ruling on that motion at that time and it wasn't

14   raised, you know, as a formal objection.      It's an aside

15   that doesn't at all raise these issues for the Court's

16   review.

17                  And so I would both argue that it's not a

18   proper objection whatsoever and it certainly was not

19   preserved at that point to be raised in the motion for

20   new trial.    So I don't think they exhausted their

21   burdens at all.

22                  THE COURT:     Thank you, Mr. Barbour.

23                  Mr. Small, I'm going to let you hopefully

24   tie up any loose ends at this time.

25                  MR. SMALL:     I would.
                                                                    26



 1                 The last thing.      And counsel appear to be

 2   attempting to tag Ms. Brown with some kind of admission

 3   that promissory estoppel and oral gift of real estate

 4   are one and the same, but the fact of the matter is that

 5   91(a) explicitly states that this is a ruling only on

 6   the pleadings.    And the pleadings say what the pleadings

 7   say.   No evidence, no argument of counsel, no nothing.

 8   It's the pleadings and the pleadings alone.

 9                 And we would ask that the Court deny their

10   91(a) motion to dismiss.    Thank you.

11                 THE COURT:    Thank you, Mr. Small.

12                 So what we're going to do is we're going to

13   allow Mr. Small to submit by e-mail and only for this

14   purpose, and CC Mr. Barbour, his two cases on the issue

15   of 91(a) and whether dropping a cause of action in fact

16   falls into the realm that would permit the argument that

17   was made today.    Only that case.       And he's going to get

18   it to me before noon.    Yes?     Yes.    And that way

19   Mr. Barbour -- I don't know if you're doing anything

20   before 2:00 today or not.       I really would -- I want to

21   have some finality one way or another.         And I want to

22   let you guys know before 5:00 if at all possible.         So if

23   you would like that, then Mr. Small can get it to me

24   before noon, and then you can have until what time

25   afternoon to respond, Mr. Barbour?
                                                                 27



 1                 MR. BARBOUR:     You said 2:00, Your Honor,

 2   that would be fine by me.

 3                 THE COURT:     Okay.   So 2:00 and that way --

 4   so that would be wonderful.     If you get it before

 5   then -- I have lunch between 12:00 and 1:30 and I don't

 6   have a judges' meeting at lunch so -- just so you know

 7   the Court's schedule.   But with that, I appreciate your

 8   arguments.   I appreciate your early morning rise in

 9   coming to the 57th this morning.      And y'all are excused.

10   Thank you very much.

11                 (Proceeding concluded.)

12

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                                                                28



 1   STATE OF TEXAS

 2   COUNTY OF BEXAR

 3

 4          I, Mary Martinez, Certified Court Reporter in and

 5   for Bexar County, State of Texas, do hereby certify that

 6   the above and foregoing contains a true and correct

 7   transcription of the proceedings requested in the

 8   above-styled and numbered cause, all of which occurred

 9   in open court or in chambers and were reported by me.

10          I further certify that this Reporter's Record truly

11   and correctly reflects the exhibits, if any, offered by

12   the respective parties.

13          I further certify that the total cost for the

14   preparation of this Reporter's Record is $      216.00

15   (expedited) and was paid by      Ms. Olga Brown      .

16          To which I certify on this the    15th     day of

17    May      , 2015.

18

19

20

21                                   /s/ Mary Martinez
                                   Mary Martinez, CSR 5943
22                                 57th District Court
                                   Bexar County Courthouse
23                                 100 Dolorosa Street
                                   San Antonio, Texas 78205
24                                 Telephone: 210.335.1602
                                   Exp: 12-31-2016
25
