                                                                             ACCEPTED
                                                                         01-15-00423-CV
                                                              FIRST COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                   7/23/2015 11:04:26 PM
                                                                   CHRISTOPHER PRINE
                                                                                  CLERK

                       No. 01-15-00423-CV

                             IN THE                    FILED IN
                                                1st COURT OF APPEALS
                                                    HOUSTON, TEXAS
          FIRST JUDICIAL DISTRICT COURT OF   APPEALS
                                                7/23/2015 11:04:26 PM
                                                CHRISTOPHER A. PRINE
                       at HOUSTON, TEXAS                 Clerk


    IN RE 8650 FRISCO, LLC d/b/a ESTILO GAUCHO BRAZILIAN
 STEAKHOUSE, MANDONA, LLC, GALOVELHO, LLC, BAHTCHE, LLC,
        CLAUDIO NUNES, and DAVID JEIEL RODRIGUES,
                           Relators

ORIGINAL PROCEEDING FROM THE 133rd JUDICIAL DISTRICT COURT

                                 OF

                     HARRIS COUNTY, TEXAS

                    MOTION FOR REHEARING

MOSSER LAW PLLC
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
Paul J. Downey
Texas Bar No. 24080659
2805 Dallas Parkway, Suite 220
Plano, Texas 75093
Tel. (972) 733-3223
Fax (469) 626-1073
courtdocuments@mosserlaw.com
LAWYERS FOR RELATORS

             RELATORS REQUEST ORAL ARGUMENT



MOTION FOR REHEARING                                                 i
                                    TABLE OF CONTENTS

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

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

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

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

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

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

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

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

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

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

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

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

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




MOTION FOR REHEARING                                                                                      ii
                                    INDEX OF AUTHORITIES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MOTION FOR REHEARING                                                                                         iii
RULES

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

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

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

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




MOTION FOR REHEARING                                                                                   1
                  ISSUES PRESENTED FOR REVIEW

The issues presented in this motion for rehearing are:

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

     Writ of Mandamus under a void order standard; or

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

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

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

     ordering the production of documents already produced; or

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

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

     2015 order under an abuse of discretion standardBy finding

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

     of any facts establishing such noncompliance.




MOTION FOR REHEARING                                                      2
                          STATEMENT OF FACTS

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

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

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

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

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

       ruled against the Relators, and increased its imposed sanction of

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

       App.448-49.

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

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

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

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

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

       23, 2015.

5.     This Motion for Reconsideration Follows.

                                 ARGUMENT

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

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

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

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

     481.

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

     pleadings are voluntarily dismissed at the exact moment the

     amended pleading is filed. FKM Prtshp. v. Board of Regents of the

     Univ. of Houston Sys. 255 S.W.3d 619, 633 (Tex. 2008) The Real

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

     request for discovery relates, contained claims alleging breach of the

     agreement that created the restaurant, conversion, fraud, fraudulent

     inducement, civil conspiracy, alter ego, unjust enrichment, quantum

     merit and requesting an accounting. App. at 20-22.

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

     contract relating exclusively to the settlement created and agreed to

     on August 4, 2014. App. at 108. Hence, by operation of law, Los

     Cucos voluntarily dismissed all prior claims when it filed its Fourth

     Amended Petition on January 21, 2015. See TEX. R. CIV. P. 65; see

     also FKM Prtshp. v. Board of Regents of the Univ. of Houston Sys.

     255 S.W.3d at 633.


MOTION FOR REHEARING                                                         4
9.    Los Cucos’ dismissal of claims via amendment is a nonsuit of those

      claims, and even Counsel for Los Cucos admits as much. See

      Randolph v. Jackson Walker, L.L.P. 29 S.W.3d 271, 274-75

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

      motion to transfer was filed before the settlement agreement was

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

      action”). (emphasis added).

10.   One unique effect of a nonsuit is that it can vitiate certain

      interlocutory orders, rendering them moot and unappealable. Villafani

      v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008) (Emphasis added).

      Sanctions orders may survive nonsuit, depending on the purpose of

      the sanction. Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 806

      (Tex. 1993). If a sanction is aimed at insuring a party is afforded a

      fair trial and not subjected to trial by ambush, the reason for imposing

      the sanction no longer exists after a party takes a nonsuit. Id. at 806-

      07. Conceivably, an order compelling discovery, like Respondent’s

      July 28, 2014 order, could be considered a sanction, as it is available

      to the moving party under TEX. R. CIV. P. 215.1.

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


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

      (Tex.App.–Houston [1st Dist] 1992, writ denied). Because the July 28,

      2014 order is not a lesser sanction, it is a simple interlocutory order

      that was extinguished the moment Los Cucos nonsuited the claims

      from which the discovery and the order itself emanated. See Villafani

      v. Trejo, 251 S.W.3d at 469; Id.

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

      original discovery request. Nonsuits have been described as putting

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

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

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

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

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

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

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

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

      Real Parties in Interest nonsuited the claims to which those requests

      were pertinent. See id.

13.   Thus, Respondent issued orders where no relevant discovery


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

      Real Parties in Interest have not made any new requests for

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

      settlement agreement asserted in its Fourth Amended Petition.

      App.440. Counsel for the Real Parties instead relies exclusively on

      the July 28, 2014 order as the vehicle by which it claims to be entitled

      to discovery. App. at 110-16, 360-63. Texas Rule of Civil Procedure

      215.1(b) states:

            “If a party fails to respond that discovery will be permitted
            as requested or fails to permit discovery as requested in
            response to a request for inspection submitted under
            Rule 196, the discovering party may move for an order
            compelling...inspection or production in accordance with
            the request or may apply to the court in which the action
            is pending for the imposition of any sanction in which the
            action is pending for the imposition of any sanction
            authorized by Rule 215.2(b)...”

      TEX. R. CIV. P. 215.1(b)(3)(D)(emphasis added)


14.   By its own terms, the rule contemplates that the requesting party

      must at least request discovery from the party from whom discovery

      is sought before the court can even hear a motion to compel

      discovery. See TEX. R. CIV. P. 215.1(b)(3)(D). As the Texas Rules

      of Civil Procedure make clear, a request for production must be

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

      mandamus relief is appropriate.

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

      produce all documents responsive to Requests for Production Nos.

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

      App.93.

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

      with Respondent’s Order by serving the requested documents

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

      2014.” App. at 94.

20.   8650 Frisco, LLC complied with this order by serving Los Cucos with

      the compelled discovery at 4:47PM on Friday, August 1, 2014 via the

      E-File Texas filing and service portal. App. at 335-36. Electronic

      Service, a method which undoubtedly includes the E-File Texas filing

      and service portal, is complete on transmission of the document to

      the serving party’s electronic filing service provider. TEX. R. CIV. P.

      21a(b)(3). The electronic filing manager will send confirmation of

      service to the serving party. Id. Thus, by operation of the Texas


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

      order. See id.

21.   In choosing to maintain its Second Motion to Enforce, Counsel for

      Los Cucos stated that:

            “Your exhibit shows that the documents were not sent to
            your e-service until 4:46 p.m. My email shows that the
            same were not forwarded to me until 5:47 p.m. Even
            then, it was not the documents that were delivered by a
            notice that they had been placed in the e-service and
            could be downloaded. Thus, your delivery was not, as
            ordered, by 5:00 p.m. and as you know, I did not receive
            the documents.” App. at 339.


      Despite the clear directive to the contrary contained in TEX. R. CIV.

      P. 21a(b)(3), and its counsel’s acknowledgment that he received the

      e-file link, Los Cucos represented to the court that it was never

      served the documents which were the subject of the July 28, 2014,

      order. App. at 360.

22.   This argument cannot stand as it places the control over the service

      of documents in the hands of the party requesting the documents,

      who may freely create a violation of an order compelling production

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

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


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

      service provider.”

23.   Because the Court ordered electronic service in accordance with Los

      Cucos’ requests, it bound itself to follow the Texas Rules of Civil

      Procedure and thus had no discretion to rule that there was no

      service. See App. at 94. Consequently, Respondent abused its

      discretion in ordering the production of documents in the April 1,

      2015 order when they had already been produced, in finding that the

      documents had never been produced in the April 27, 2015 order, and

      in sanctioning 8650 Frisco, LLC. See TEX. R. CIV. P. 21a(b)(3).

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

      irrelevant documents. Usually, the scope of discovery includes any

      unprivileged information that is relevant to the subject of the action,

      even if it would be inadmissible at trial, so long as the information is

      reasonably calculated to lead to the discovery of admissible

      evidence. In re BDPJ Houston, LLC, 420 S.W.3d 309

      (Tex.App–Houston [14th Dist.] 2013)(original proceeding)(citing TEX.

      R. CIV. P. 192.3(a))(emphasis added). Information is relevant if it

      tends to make the existence of any fact that is of consequence to the


MOTION FOR REHEARING                                                          11
      determination of the action or defense more or less probable than it

      would be without such information. Id. (citing TEX. R. EVID.

      401)(emphasis added).

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

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

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

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

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

      claims to which the discovery requests were relevant renders the

      requests irrelevant to the unrelated replacement claim in the Fourth

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

      App.461:9-12; 468:15-18; 488:10-14; See also In re BDPJ Houston,

      LLC, 420 S.W.3d 309 (Tex.App–Houston [14th Dist.] 2013)(original

      proceeding)(citing TEX. R. CIV. P. 192.3(a); TEX. R. EVID.

      401)(emphasis added).

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

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

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

      An appellate remedy is inadequate “where a discovery order compels


MOTION FOR REHEARING                                                      12
      the production of patently irrelevant or duplicative documents, such

      that it clearly constitutes harassment or imposes a burden on the

      producing party far out of proportion to any benefit that may obtain to

      the requesting party.” See Walker v. Packer, 827 S.W.2d 833, 843

      (Tex.1992).

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

      reproduce documents to the Real Parties in Interest that had already

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

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

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

      in the trial court. See In re BDPJ Houston, LLC, 420 S.W.3d 309

      (Tex.App–Houston [14th Dist.] 2013)(original proceeding)(citing TEX.

      R. CIV. P. 192.3(a); TEX. R. EVID. 401)(emphasis added).

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

      standard, and the court should grant this motion for reconsideration

      on this issue.

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

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


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

      production of the requested documents.

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

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

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

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

      there is no adequate remedy at appeal.

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

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

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

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

      “Defendants are ordered to produce all documents identified in the

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

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

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

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

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

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

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


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

      they acknowledge receipt of some 7347 pages of responsive

      material, the Real Parties complain that Relators failed to produce

      documents after July 2014. App.362.

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

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

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

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

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

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

      to mention that “Defendants have not produced bank records before

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

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

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

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

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

      documents, it need only have produced documents in accordance

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

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


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

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

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

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

      App.93.

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

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

      112 pages of documents spanning the time period between April

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

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

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

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

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

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

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

      Counsel for Real Parties in Interest simply states:

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

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

            App.479:22-480:7.

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

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

      Frisco withheld any documents that were not already in their

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

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

      App.1.

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

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

      determine whether additional documents could have or should have

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

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

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

      Real Parties in Interest that the document production was insufficient.

      App.480:6-7.

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

      the ongoing duty to supplement without ever making such an


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

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

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

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

      discovery was incomplete or incorrect when made, or although

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

      TEX. R. CIV. P. 193.5.

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

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

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

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

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

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

      not prove that the documents provided failed to comply with either

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

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

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

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

      must establish that the trial court could reasonably reach only one


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

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

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

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

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

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

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

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

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

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

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

      additional production not requested by the Real Parties constitutes a

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

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

      Court find that the Respondent abused her discretion in issuing her

      April 27, 2015 order.

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

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

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


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

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

      conclusively established the issue of whether Plaintiffs are irreparably

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

      favor. App.3.

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

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

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

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

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

      cannot conduct additional discovery until it produces documents

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

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

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

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

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

      771-72 (Tex. 1995).

                               CONCLUSION

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


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

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

      for Reconsideration and vacate these orders and also vacate

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

      that justice might be done.

                                     PRAYER

WHEREFORE, PREMISES CONSIDERED, Relators pray that this court

grant this motion for reconsideration and find that:

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

            as a matter of law; or

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

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

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

      c.    Respondent acted arbitrarily and unreasonably in finding that

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

            such that there is no adequate remedy at law; and

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

            order, and the May 21, 2015 order.




MOTION FOR REHEARING                                                        21
Respectfully Submitted, MOSSER LAW PLLC


s/ James C. Mosser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
Paul J. Downey
Texas Bar No. 24080659
Mosser Law, PLLC
2805 Dallas Parkway Suite 222
Plano, Texas 75093
Telephone 972-733-3223
Facsimile 469-626-1073
courtdocuments@mosserlaw.com
LAWYERS FOR DEFENDANTS 8650 FRISCO, LLC, D/B/A 8650 FRISCO,
LLC BRAZILIAN STEAKHOUSE; MANDONA, LLC; GALOVELHO, LLC; BAHTCHE,
LLC; CLAUDIO NUNES; AND DAVID JEIEL RODRIGUES

                             CERTIFICATION

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

/s/ Paul J. Downey
Paul J. Downey

                     CERTIFICATE OF COMPLIANCE

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

/s/ Paul J. Downey

MOTION FOR REHEARING                                                       22
Paul J. Downey

                      CERTIFICATE OF SERVICE

      I certify that on July 23, 2015, this document was served on the
following parties or counsel of records in accordance with Texas Rule of
Appellate Procedure 9.5:

Respondent
Honorable Jaclanel McFarland
Judge Presiding
133rd Judicial District Court
Harris County Civil Courthouse
201 Caroline, 11th Floor
Houston, Texas 77002
Tel. 713-368-6200

Real Parties In Interest
Los Cucos Mexican Café VIII, Inc.; Los Cucos Mexican Café IV, Inc.; Manuel
Cabrera, and Sergio Cabrera,
represented by
Hawash Meade Gaston Neese & Cicack LLP
Samuel B. Haren
Texas Bar No. 24059899
2118 Smith Street
Houston, Texas 77002
Tel. 713-658-9001
Fax 713-658-9011
sharen@hmgnc.com

/s/ Paul J. Downey
Paul J. Downey




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