                                                                         ACCEPTED
                                                                     01-15-00423-CV
                                                          FIRST COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                                                                 5/6/2015 7:40:32 PM
                                                               CHRISTOPHER PRINE
                                                                              CLERK
                        01-15-00423-CV
                   No. _____________________         FILED IN
                                                st
                                               1 COURT OF APPEALS
                                                   HOUSTON, TX
                             IN THE                MAY 6, 2015
                                               CHRISTOPHER A. PRINE,
                                                      CLERK
        ________ JUDICIAL DISTRICT COURT OF APPEALS

                       at HOUSTON, TEXAS

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

ORIGINAL PROCEEDING FROM THE 133rd JUDICIAL DISTRICT COURT

                                 OF

                     HARRIS COUNTY, TEXAS

               PETITION FOR WRIT OF MANDAMUS


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
            RELATORS REQUEST TEMPORARY RELIEF

PETITION FOR WRIT OF MANDAMUS                                    i
                  IDENTITY OF PARTIES & COUNSEL

The following is a complete list of the parties, the attorneys, and any other
person who has an interest in the outcome of this lawsuit:

Relators
8650 Frisco, LLC, d/b/a Estilo Gaucho Brazilian Steakhouse;
Mandona, LLC;
Galovelho, LLC;
Bahtche, LLC;
Claudio Nunes; and
David Jeiel Rodrigues
represented by:

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

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.;

PETITION FOR WRIT OF MANDAMUS                                               ii
Los Cucos Mexican Café IV, Inc.;
Manuel Cabrera; and
Sergio Cabrera,
represented by

Stephens & Domnitz, PLLC
Kelly Stephens
Texas Bar No. 19158300
P.O Box 79734
Houston, Texas 77279-9734
Tel. 281-394-3287
Fax 832-476-5460
kstephens@stephensdominitz.com

Hawash, Meade, Gaston, Neese, & Cicack LLP
Andrew K. Meade
Texas Bar No. 24032854
Jeremy M. Masten
Texas Bar No. 24083454
Samuel B. Haren
Texas Bar No. 24059899
2118 Smith Street
Houston, Texas 77002
Tel. 713-658-3001
Fax. 713-658-9011
ameade@hmgnc.com
jmasten@hmgnc.com
sharen@hmgnc.com

Cox Smith Matthews Incorporated
David Kinder
Texas Bar No. 11432550
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205
Tel. 210-554-5500
Fax. 210-226-8395
dkinder@coxsmith.com


PETITION FOR WRIT OF MANDAMUS                iii
                                    TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

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

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    Los Cucos’ Fourth Amended Petition Nonsuits All Prior Claims on which
          the July 28, 2014 Enforcement Order Is Based. . . . . . . . . . . . 8
    This Voluntary Dismissal Is a Nonsuit. . . . . . . . . . . . . . . . . . . . . . . 10
    This Nonsuit Also Disposes of 8650 Frisco,LLC’s
          Derivative Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
    This Nonsuit Disposed of the Trial Court’s
          July 28, 2014 Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
    Counsel for Los Cucos Has Failed to Comply with the Discovery
          Process; Therefore, Respondent Abused her Discretion in
          ordering The Production of Documents
          Or Discovery Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
    Respondent’s April Orders Constitute a Clear Abuse of Discretion
          Because the Discovery Sought Was Served on the Requesting
          Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
    There Is No Adequate Remedy by Appeal for
          These Abuses of Discretion. . . . . . . . . . . . . . . . . . . . . . . . . . 23
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25


PETITION FOR WRIT OF MANDAMUS                                                                            iv
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

APPENDIX AND RECORD.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27




PETITION FOR WRIT OF MANDAMUS                                                             v
                                   INDEX OF AUTHORITIES

CASES
Able Supply Co. v. Moye, 898 S.W.2d 766, 772 (Tex. 1995). . . . . . . . . . . 8

Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 806 (Tex. 1993). . . 13,
                                                                       15

Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991). . . . 8,
                                                                         17

B & W Supply, Inc. v. Beckman, 305 S.W. 3d 10, 16 (Tex.App.–Houston
[1st Dist] 2009, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Bair v. Hagans, 838 S.W.2d 677, 681 (Tex.App.–Houston [1st Dist] 1992,
writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990). . 12,
                                                                       13

C/S Solutions, Inc. v. Energy Maintenance Svcs. Grp. LLC. 274 S.W.3d
299, 306 (Tex.App.–Houston [1st Dist] 2008, no pet.). . . . . . . . . . . . . . . . 11

City of Dallas v. Albert, 354 S.W.3d 368, 375 (Tex. 2011). . . . . . . . . . . . 11

Dolenz v. All Saints Episcopal Hosp. 638 S.W.2d 141, 142 (Tex.App.–Fort
Worth 1982, writ ref’d n.r.e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Epps v. Fowler, 351 S.W.3d 862, 868 (Tex. 2011). . . . . . . . . . . . . . . . . . 10

FKM Prtshp. v. Board of Regents of the Univ. of Houston Sys. 255 S.W.3d
619, 633 (Tex. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

In re BDPJ Houston, LLC, 420 S.W.3d 309 (Tex.App–Houston [14th Dist.]
2013)(original proceeding). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-22

In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). . . . . . . . . . . . . . 20, 23


PETITION FOR WRIT OF MANDAMUS                                                                            vi
In re Estate of Kidd, 812 S.W.2d 356, 359 (Tex.App.–Amarillo 1991, writ
denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

In re Prudential, 148 S.W.3d 124, 135-36 (Tex. 2004). . . . . . . . . . . . . . . . 7

In re Team Rocket, L.P. 256 S.W.3d 257, 259 (Tex. 2008) (original
proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Randolph v. Jackson Walker, L.L.P. 29 S.W.3d 271, 274-275
(Tex.App.–Houston [14th Dist.] 2000, pet. denied).. . . . . . . . . . . . . . . . . . 10

UTMB v. Estate of Blackmon, 195 S.W.3d 98, 101 (Tex. 2006). . . . . . . . 12

Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008). . . . . . . . . . . . . . 13, 14

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). . . . . . . . . . . . 7, 8, 17


RULES
TEX. R. CIV. P. 021a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

TEX. R. CIV. P. 063. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. R. CIV. P. 065. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. R. CIV. P. 096. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

TEX. R. CIV. P. 162. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

TEX. R. CIV. P. 192.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

TEX. R. CIV. P. 192.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TEX. R. CIV. P. 215.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17




PETITION FOR WRIT OF MANDAMUS                                                                              vii
                       STATEMENT OF THE CASE

1.   This petition for writ of mandamus is taken from breach of contract

     suit in which the Real Parties in Interest allege that the Relators have

     breached a settlement agreement that ended a prior lawsuit. The

     Real Party in Interest seeks judgment for actual damages totaling

     $900,000, the cost of Relator’s alleged breach.

2.   Respondent in this case is the Honorable Jaclanel McFarland, who

     presides over the 133rd Judicial District Court located in Harris

     County at the Harris County Civil Courthouse, 201 Caroline, 11th

     Floor, Houston, Texas 77002.

3.   Relators seek relief from Respondent’s April 1, 2015 Order

     mandating the production of certain discovery to which the Real

     Parties in Interest were not entitled.

4.   Additionally, Relators seek relief from Respondent’s April 27, 2015

     Order barring Relators from conducting discovery related to

     defending against the breach of contract claim; granting $1,000.00 in

     attorneys fees to the Real Parties in Interest for costs incurred in

     securing production of the documents; and deeming conclusively

     established the issue of irreparable harm to Real Parties in Interest


PETITION FOR WRIT OF MANDAMUS                                               viii
    from the lack of a signed note and security interest.




PETITION FOR WRIT OF MANDAMUS                               ix
                     STATEMENT OF JURISDICTION

This Court has jurisdiction to issue a writ of mandamus. TEX. GOVT.

CODE § 22.221(b)(1). That section permits this Court to issue a writ of

mandamus against a judge of a district court in the court of appeals district.

Harris County is within the First and Fourteenth Court of Appeals Districts.

TEX. GOVT. CODE § 22.201(b), (o). The 133rd Judicial District Court is

seated in Harris County. TEX. GOVT. CODE § 24.235. Thus, the 133rd

Judicial District Court is within these Courts’ Appeals Districts. See id; see

also TEX. GOVT. CODE § 22.201(b), (o).




PETITION FOR WRIT OF MANDAMUS                                                    x
                          ISSUES PRESENTED

     The issues presented in this petition are:

1.   Whether the most recent amendment to Real Parties’ in Interest

     Petition acts to affirmatively non-suit the claims from the original

     lawsuit, the answer is Yes.

2.   Whether the nonsuit renders Respondent’s July 28, 2014 discovery

     order a nullity, the answer is Yes.

3.   Whether Real Parties in Interest failed to follow the proper discovery

     procedures before filing its improperly titled Second Motion to

     Enforce the Court’s Order and for Sanctions the answer is Yes.

4.   Whether the April 1, 2014 order and the April 27, 2014 order compel

     the production of discovery that is patently irrelevant, the answer is

     Yes.

5.   Whether the April 1, 2014 and April 27, 2014 constitute an abuse of

     discretion, the answer is Yes.

6.   Whether there is an adequate remedy by appeal for this abuse of

     discretion, the answer is No.




PETITION FOR WRIT OF MANDAMUS                                                 xi
                         STATEMENT OF FACTS

1.   On March 12, 2014, Real Parties in Interest (hereinafter “Los Cucos”)

     filed their original petition relating to a business startup, alleging

     breach of contract, conversion, fraud, fraudulent inducement, civil

     conspiracy, alter ego, unjust enrichment, quantum merit, all base on

     an oral contract, and requesting an accounting, all of which stemmed

     from the business operated by the Relators (hereinafter “8650 Frisco,

     LLC”). App. at 15-25.

2.   Then, one month later, Los Cucos served 8650 Frisco, LLC, with its

     first set of discovery requests. App. at 26-37, 8650 Frisco, LLC, filed

     its original answer this same day. App. at 38-41. 8650 Frisco, LLC,

     objected to Los Cucos’ discovery requests which eventually became

     the subject of an order compelling production of documents issued

     by the Respondent on July 28, 2014. App. at 93-94. Respondent’s

     order called for the documents to be “produced at [Attorney in

     Charge for Los Cucos Office] by August 1, 2014 at 5:00 P.M. in

     accordance with Los Cucos’ Counsel’s request that he be served

     electronically so he “can get ready for depositions” scheduled for

     August 4, 2014. Compare App. at 70 with App. at 94. 8650 Frisco,


PETITION FOR WRIT OF MANDAMUS                                                  1
     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.

3.   On Monday, August 4, 2014, the parties met in Houston at Los

     Cucos’ attorney’s office for depositions, which had been ordered and

     scheduled that day by the court. App. at 86; 106. Depositions began

     as ordered, and continued throughout the day and were adjourned,

     the next day, August 5, 2014, the parties sua sponte opened

     settlement discussions and reached a settlement agreement which

     was then dictated to the court reporter and agreed to, with all counsel

     and clients present. The agreement was subsequently filed with the

     court. App. at 95-99. These negotiations were conducted and this

     agreement was reached without the attorney in charge, Counsel for

     Los Cucos ever having opened the e-mail he received which

     contained the discovery materials ordered produced by the

     Respondent on July 28, 2014. App. at 335-36; App. at 339.

4.   Between August 4, 2014, and January 21, 2015, disagreements

     arose between the parties over the form of the “standard bank type

     document” which prevented the parties from jointly executing the


PETITION FOR WRIT OF MANDAMUS                                              2
     same documents. App. at 107-08. Despite this, 8650 Frisco, LLC

     signed a note and has made all payments to Los Cucos as agreed.

     App. at 107. 8650 Frisco, LLC is presently current on the monthly

     payments. App. at 107.

5.   On January 21, 2015, Los Cucos amended its live pleading a fourth

     time, the last time. App. at 100-110. This pleading contains a singular

     cause of action alleging a breach of the agreement struck by the

     litigants on August 4, 2014, that was filed with the court. App. at 108.

     The claims alleging a breach of the agreement that created the

     restaurant, conversion, fraud, fraudulent inducement, civil

     conspiracy, alter ego, unjust enrichment, quantum merit and

     requesting an accounting are no longer present in the fourth

     amended pleading. Compare App. at 20-22 with App. at 108. Los

     Cucos has not made any discovery requests in connection with the

     claim contained in this latest pleading. App. at 440.

6.   Instead, on February 20, 2015, Los Cucos filed a Motion to Compel

     discovery of the documents which were the subject of the

     Respondent’s July 28, 2014 order with the Respondent and which

     8650 Frisco, LLC had properly served responses pursuant to Tex. R.


PETITION FOR WRIT OF MANDAMUS                                               3
     Civ. P. 21 and 21a, on Los Cucos. App. at 111-328. 8650 Frisco,

     LLC objected to the court’s order to the re-production of the these

     same previously produced documents in its response to Los Cucos’

     motion. App. at 329-36. 8650 Frisco, LLC supplemented its response

     after receiving a letter from Counsel for Los Cucos, which

     acknowledged the production via E-File, but contended that because

     the email, receipt was not opened by Counsel for Los Cucos before

     5:00PM on August 1, 2014, 8650 Frisco, LLC had failed to comply

     with the court’s order compelling production. App. at. 337-341. Even

     though the eservice transmission shows that it was sent at 4:47pm.

     Los Cucos set this motion for hearing which took place on March 30,

     2015, at which time the judge granted the motion to compel the

     production of the previously produced documents and ordered them

     to be produced again in the July 28, 2014 order by no later than

     5:00PM on April 1, 2015. App. at 1.

7.   8650 Frisco, LLC made several attempts to serve these documents

     on Counsel for Los Cucos. App. at 342-59. Of the three firms

     representing Los Cucos, only Mr. Kinder successfully received

     copies of the documents via facsimile. App. at 342. In spite of this


PETITION FOR WRIT OF MANDAMUS                                               4
     service, Counsel for Los Cucos maintained that 8650 Frisco, LLC

     had failed to comply with the court’s order by not serving enough

     responsive documents. App. at 360. Los Cucos filed a Third Motion

     to Enforce the Court’s Order and for Sanctions. App. at 360-429.

     Again, 8650 Frisco, LLC responded to the Motion to Enforce. App. at

     430-38. The Court held a hearing on this matter on April 27, 2015,

     and without evidence, granted ex parte, the relief requested by Los

     Cucos, specifically:

     a.    That 8650 Frisco, LLC is barred from further discovery until a

           representative signs a sworn affidavit of compliance with this

           order;

     b.    that 8650 Frisco, LLC shall pay $1000.00 to Los Cucos for their

           costs incurred in securing production of the Documents, and;

     c.    That the issue of whether Plaintiff’s face irreparable harm from

           the lack of the note and security required by the parties’

           contract is conclusively established in [Los Cucos’] favor. App.

           at 2-3.

8.   This original proceeding follows.

                               ARGUMENT


PETITION FOR WRIT OF MANDAMUS                                                 5
9.    Respondent’s conduct in this case merits the relief of a writ of

      mandamus because Respondent has decided without any basis in

      law or fact that Los Cucos is entitled to certain discovery despite Los

      Cucos’ voluntary nonsuit of the claims to which that discovery is

      related.

10.   Additionally, the Respondent has allowed Los Cucos to rely on an

      order that does not survive nonsuit to make demands for discovery

      entirely outside the traditional discovery process with respect to a

      wholly original claim. Finally, Respondent’s conduct in foreclosing

      8650 Frisco, LLC’s discovery right, and conclusively establishing an

      unplead element of a claim other than breach of contract severely

      impairs 8650 Frisco, LLC’s ability to present a viable claim or

      defense to the suit.

Standard of Review

11.   A relator is entitled to the extraordinary writ of mandamus if the trial

      court clearly abused its discretion and the relator has no adequate

      remedy by appeal. In re Team Rocket, L.P. 256 S.W.3d 257, 259

      (Tex. 2008) (original proceeding). A trial court abuses its discretion if

      it acts in an unreasonable or arbitrary manner without reference to


PETITION FOR WRIT OF MANDAMUS                                                    6
      guiding rules and principles. Walker v. Packer, 827 S.W.2d 833, 839

      (Tex. 1992). A trial court has no “discretion” in determining what the

      law is or applying the law to the facts. Id. at 840. Thus, a clear failure

      by the trial court to analyze or apply the law correctly will constitute

      an abuse of discretion, and may result in appellate reversal by

      extraordinary writ. Id.

12.   Additionally, the relator must have no adequate remedy by appeal. In

      re Prudential, 148 S.W.3d 124, 135-36 (Tex. 2004). Determining

      whether an appellate remedy is adequate involves balancing

      “practical and prudential” considerations, such as the inevitability of

      reversal and the waste of judicial resources on a proceedings. In re

      Team Rocket, L.P. 256 S.W.3d at 262. An appellate remedy is

      inadequate “where a discovery order compels 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 at 843. Further,

      mandamus will issue where a party’s ability to present a viable claim

      or defense at trial is vitiated or severely compromised by the trial


PETITION FOR WRIT OF MANDAMUS                                                    7
      court’s discovery error. Able Supply Co. v. Moye, 898 S.W.2d 766,

      772 (Tex. 1995).

13.   Finally, a writ of mandamus will issue to compel the performance of a

      ministerial act or duty. Walker v. Packer, 827 S.W.2d at 839. An act

      is ministerial when the law clearly spells out a duty to be performed

      by a public official with such certainty that nothing is left to the

      official’s discretion. Anderson v. City of Seven Points, 806 S.W.2d

      791, 793 (Tex. 1991).

14.   Here, the Respondent’s reliance on an order that does not survive

      nonsuit as grounds for a subsequent motion to enforce;

      Respondent’s command to produce documents irrelevant to the lone

      claim presented by Los Cucos; and Respondent’s sanctions barring

      discovery by 8650 Frisco, LLC and conclusively establishing a claim

      that remains not pleaded by Los Cucos all constitute reversible error

      with no adequate remedy by appeal, for which a writ of mandamus is

      the only corrective action.

 LOS CUCOS’ FOURTH AMENDED PETITION NONSUITS ALL PRIOR CLAIMS ON
       WHICH THE JULY 28, 2014 ENFORCEMENT ORDER IS BASED

15.   Pleadings may be amended at any time prior to trial, so long as the

      amendment does not operate as a surprise to the opposite party.

PETITION FOR WRIT OF MANDAMUS                                                 8
      TEX. R. CIV. P. 63. Unless the substituted instrument shall be set

      aside on exceptions, the instrument for which it is substituted shall no

      longer be regarded as a part of the pleading in the record of the

      cause. TEX. R. CIV. P. 65. As the Supreme Court of Texas has

      stated, “Amended pleadings and their contents take the place of prior

      pleadings. So causes of action not contained in amended pleadings

      are effectively dismissed at the time 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) (emphasis added).

16.   As previously stated, Los Cucos’ original petition 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. The Fourth Amended Petition contains a lone claim for

      breach of contract relating exclusively to the settlement created and

      agreed to on August 4, 2015. 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


PETITION FOR WRIT OF MANDAMUS                                                   9
      Houston Sys. 255 S.W.3d at 633.

                  THIS VOLUNTARY DISMISSAL IS A NONSUIT

17.   Because an amended pleading supersedes and supplants all

      previous pleadings, an amendment of the pleading can work as a

      nonsuit of parties and claims. See Randolph v. Jackson Walker,

      L.L.P. 29 S.W.3d 271, 274-275 (Tex.App.–Houston [14th Dist.] 2000,

      pet. denied.) (“Therefore on appeal, the doctor could not complain of

      the trial court’s action upon his original plea for injunction because

      that cause of action was abandoned when he went to trial on his third

      amended petition.”)(citing Dolenz v. All Saints Episcopal Hosp. 638

      S.W.2d 141, 142 (Tex.App.–Fort Worth 1982, writ ref’d n.r.e)).

      Omitting a claim from an amended petition indicates an intent to

      nonsuit that claim. Dolenz v. All Saints Episcopal Hosp. 638 S.W.2d

      141, 142 (Tex.App.–Fort Worth 1982, writ ref’d n.r.e). A written order

      of nonsuit is not required. TEX. R. CIV. P. 162; Epps v. Fowler, 351

      S.W.3d 862, 868 (Tex. 2011). Thus, 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 at 274-275; See also App. at 114-15. (“That motion to


PETITION FOR WRIT OF MANDAMUS                                                  10
      transfer was filed before the settlement agreement was made and

      only addresses claims which are no longer asserted in this action”).

      (emphasis added). The nonsuit necessarily affects orders entered in

      this case pursuant to the non-suited claims, specifically the July 28,

      2014 order.

 THIS NONSUIT ALSO DISPOSES OF 8650 FRISCO, LLC’S DERIVATIVE CLAIMS

18.   Because Los Cucos has taken a nonsuit of all claims made prior to

      January 21, 2015, 8650 Frisco, LLC’s derivative claim, its request for

      declaratory judgment, is mooted. When a nonsuit is taken, the

      dismissal does not prevent the defendant from being heard on its

      own claims for affirmative relief. TEX. R. CIV. P. 96; 162; City of

      Dallas v. Albert, 354 S.W.3d 368, 375 (Tex. 2011). The distinction

      between a true Rule 162 nonsuit and a voluntary dismissal under

      Rule 63 has no practical effect when a plaintiff files a written “nonsuit”

      that abandons the case as to certain claims so long as the written

      “nonsuit” does not run afoul of the time restrictions in Rule 63. C/S

      Solutions, Inc. v. Energy Maintenance Svcs. Grp. LLC. 274 S.W.3d

      299, 306 (Tex.App.–Houston [1st Dist] 2008, no pet.). For a claim to

      qualify as a claim for affirmative relief under TEX. R. CIV. P. 162, it


PETITION FOR WRIT OF MANDAMUS                                                   11
      must allege the defendant has a cause of action on which it can

      recover independent of the plaintiff’s claims, even if the plaintiff

      abandons or is unable to establish its claims. UTMB v. Estate of

      Blackmon, 195 S.W.3d 98, 101 (Tex. 2006).

19.   A claim that mirrors the controlling issues in a case is not an

      independent claim for affirmative relief. In re Estate of Kidd, 812

      S.W.2d 356, 359 (Tex.App.–Amarillo 1991, writ denied). A

      declaratory judgment that denies the existence of a contract filed in

      response to a breach of contract claim is not an independent claim

      for affirmative relief. BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d

      838, 841 (Tex. 1990)(citing Newman Oil Co. v. Alkek, 614 S.W.2d

      653 (Tex.Civ.App.–Corpus Christi 1981, writ refused n.r.e.)(“We hold

      that the above allegations pled in defendants’ counterclaim are not

      any averments of fact upon which affirmative relief could be granted.

      They are merely denials of plaintiff’s cause of action.”).

20.   In this case, 8650 Frisco, LLC has filed a declaratory judgment action

      seeking a declaration that no contract exists between the parties, a

      fact which Los Cucos would have had to prove as part of its breach

      of contract claim. App. at 39-40. The nonsuit of Los Cucos’ original


PETITION FOR WRIT OF MANDAMUS                                                12
        breach of contract claim thus disposes of 8650 Frisco, LLC’s action

        seeking declaratory judgment. See BHP Petroleum Co. Inc. v.

        Millard, 800 S.W.2d at 841.

      THIS NONSUIT DISPOSED OF THE TRIAL COURT’S JULY 28, 2014 ORDER

21.     Whether the July 28, 2014 order survives nonsuit depends on the

        nature of the order. 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. This court, however, has held that “an order

        to compel is not a lesser sanction under rule 215.[2(b)].” Bair v.

        Hagans, 838 S.W.2d 677, 681 (Tex.App.–Houston [1st Dist] 1992,


PETITION FOR WRIT OF MANDAMUS                                                     13
      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.

22.   If the court is of a mind that the order to compel constitutes a

      sanction, then the purpose of the order, to compel the production of

      documents needed for depositions, ceased to exist the moment the

      parties entered into the settlement agreement, or when they were

      eserved. App. at 97-98. This concept is underscored by the fact that

      Counsel for Los Cucos made a special point of stating his specific

      need for the documents during a hearing, then subsequently entered

      into a settlement agreement without ever having viewed the

      documents. See App. at 70, 97-98, 335, 339-40. Neither did he

      complain of any failure to produce the documents or of their

      substance during the deposition or the subsequent settlement

      negotiations1, waiting only until he amended Los Cucos’ suit to


      1
        TEX. R. CIV. P. 8 states “All communications from the court or to other counsel
with respect to a suit shall be sent to the attorney in charge.” The rule further defines
counsel in charge as “the attorney whose signature appears on the initial
pleadings...unless another attorney is specifically designated therein.” Kelly Stephens is

PETITION FOR WRIT OF MANDAMUS                                                          14
      complain of breach of contract and a lack of documents. App. at 97-

      98, 100-110, 113-115. Thus, the purpose for any sanction ceased to

      exist by the conclusion of the settlement agreement and that purpose

      was fully extinguished at the moment of nonsuit. See Aetna Cas. &

      Sur. Co. v. Specia, 849 S.W.2d at 806.

23.   Consequently, the July 28, 2014 order does not survive the nonsuit.

      See id.

  COUNSEL FOR LOS CUCOS HAS FAILED TO COMPLY WITH THE DISCOVERY
 PROCESS; THEREFORE, RESPONDENT ABUSED HER DISCRETION IN ORDERING
      THE PRODUCTION OF DOCUMENTS OR DISCOVERY SANCTIONS.

24.   As of May 3, 2015, Counsel for Los Cucos has not made any

      requests for production relating to the lone breach of contract claim

      relating to the settlement agreement asserted in its Fourth Amended

      Petition. Counsel 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 attorney in charge, but Andrew Meade handled the deposition of Claudio Nunes on
August 4, 2014.

PETITION FOR WRIT OF MANDAMUS                                                    15
           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)

25.   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

      made in writing. TEX. R. CIV. P. 192.7(a).

26.   Because the July 28, 2014 order is moot for the reasons listed

      above, Los Cucos failed to make a showing that it ever propounded

      requests for production related to its Sole Breach of Contract claim.

      App. at 110-116, 360-63. Thus, Los Cucos has failed to meet a

      necessary prerequisite to a motion to compel or a motion for

      sanctions. See TEX. R. CIV. P. 215.1(b)(3)(D). Because the court

      had no evidence before it that Los Cucos had ever propounded a

      discovery request based upon the live pleading to 8650 Frisco, LLC,

      the court had no discretion to grant the Second and Third Motions to

      Compel, rendering denial a ministerial act in which the law clearly

PETITION FOR WRIT OF MANDAMUS                                               16
      spells out a duty to be performed by the Respondent with such

      certainty that nothing is left to the Respondent’s discretion. See

      Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991).

      At the very least, this constitutes a clear abuse of discretion, because

      a trial court has no “discretion” in determining what the law is or

      applying the law to the facts. Walker v. Packer, 827 S.W.2d at 840.

RESPONDENT’S APRIL ORDERS CONSTITUTE A CLEAR ABUSE OF DISCRETION
BECAUSE THE DISCOVERY SOUGHT WAS SERVED ON THE REQUESTING PARTY

27.   TEX. R. CIV. P. 215.1 also requires a showing that the party on

      whom discovery was served must fail to respond, that discovery will

      be permitted as requested or fail to permit discovery as requested in

      response to a request...submitted under Rule 196. TEX. R. CIV. P.

      215.1(b)(3)(D) (emphasis added). If this court finds that the Court’s

      July 28, 2014 order survives nonsuit and that Los Cucos properly

      noticed 8650 Frisco, LLC, the court should conclude nonetheless that

      the Court’s April Orders constitute an abuse of discretion, as Los

      Cucos did not make a viable showing that 8650 Frisco, LLC failed to

      comply with the discovery rules or the Court’s July 28, 2014 order.

28.   As stated previously, the July 28, 2014 Order required that 8650

      Frisco, LLC, comply with Respondent’s Order by serving the

PETITION FOR WRIT OF MANDAMUS                                               17
      requested documents electronically “in Plaintiff’s Office no later than

      5:00 PM on August 1, 2014.” App. at 94. 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 Rules of Civil

      Procedure, 8650 Frisco, LLC complied with the court’s order. See id.

29.   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

PETITION FOR WRIT OF MANDAMUS                                               18
      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.

30.   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 to produce by ignoring

      its e-mail. Additionally, this argument ignores TEX. R. CIV. P. 21a

      which states “Electronic service is complete on transmission of the

      document to the serving party’s electronic filing service provider.”

      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).

 THE REQUESTED DISCOVERY IS NOT RELEVANT TO LOS CUCOS SOLE CLAIM
                            FOR RELIEF

31.   Generally, the scope of discovery is within the trial court’s discretion.

PETITION FOR WRIT OF MANDAMUS                                                19
      In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003)(citing Dillard

      Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995)).

      However, the trial court must make an effort to impose reasonable

      discovery limits. Id. (citing In re American Optical, 988 S.W.2d 711,

      713 (Tex. 1998). The trial court abuses its discretion by ordering

      discovery that exceeds that permitted by the rules of procedure. Id.

      (citing Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995).

32.   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 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).

33.   Los Cucos’ sole claim for relief states, “The defendants have

      breached the Rule 11 agreement by failing to execute the formal


PETITION FOR WRIT OF MANDAMUS                                                 20
      settlement agreement, the promissory note, and the appropriate

      security documents as set forth in the Rule 11 agreement.” App. at

      108. Nothing in the Second Motion to Enforce filed on February 20,

      2015 relates at all to whether there has been a breach of the

      settlement agreement, because all of this requested discovery

      relates to causes of action that Los Cucos has since nonsuited. App.

      at 15-37,114. The requested discovery does not tend to “make the

      existence of any fact of consequence” to the breach of the Rule 11

      Agreement “more or less probable.” See In re BDPJ Houston, LLC,

      420 S.W.3d at 309.

34.   Furthermore, the issue of whether the Real Parties in Interest face

      “irreparable harm from the lack of the note/security (sic) required by

      the parties’ contract” is not an element of a breach of contract suit,

      and thus is not relevant to this suit.

35.   The essential elements of a breach of contract claim are (1) the

      existence of a valid contract, (2) performance or tendered

      performance by the plaintiff; (3) breach of the contract by the

      defendant; and (4) damages sustained as a result of the breach. B &

      W Supply, Inc. v. Beckman, 305 S.W. 3d 10, 16 (Tex.App.–Houston


PETITION FOR WRIT OF MANDAMUS                                                  21
      [1st Dist] 2009, pet. denied).

36.   Los Cucos’ claim that “Plaintiffs require information from the

      Financial Documents to assess Defendant’s compliance with their

      settlement obligations” simply does not relate to any of the elements

      of a breach of contract suit, and thus discovery on this basis is not

      reasonably calculated to lead to any admissible evidence that tend to

      prove or disprove any facts of consequence. Compare App. at 114

      with id.; In re BDPJ Houston, LLC, 420 S.W.3d at 309.

37.   Finally, Los Cucos’ claim that “Information concerning Plaintiff’s prior

      claims is relevant to respond to Defendants’ frivolous motion to

      transfer arguments” is without merit, and even Respondent thought

      as much, as she denied the motion to transfer prior to ever hearing

      Los Cucos’ Second Motion to Enforce the Court’s Order. Compare

      App. at 1 with App. at 439. In so ruling, Respondent found the

      documents the subject of her July 28, 2014 order had no bearing on

      the motion to transfer venue then currently before the court,

      underscoring the patent irrelevance of the documents to which Los

      Cucos believes it is entitled. See In re BDPJ Houston, LLC, 420

      S.W.3d at 309; TEX. R. CIV. P 192.3(a).


PETITION FOR WRIT OF MANDAMUS                                                 22
      THERE IS NO ADEQUATE REMEDY BY APPEAL FOR THESE ABUSES OF
                             DISCRETION

38.   The Supreme Court of Texas has held that “where a discovery order

      compels production of ‘patently irrelevant or duplicative documents’...

      there is no adequate remedy by appeal because the order ‘imposes a

      burden on the producing party far out of proportion to any benefit that

      may obtain to the requesting party.” In re CSX Corp. 124 S.W.3d

      149, 153 (Tex. 2003)(citing Walker v. Packer, 827 S.W.2d 833, 843

      (Tex. 1992)).

39.   The documents in question are patently irrelevant to the breach of

      contract claim contained in Los Cucos’ live pleading, its Fourth

      Amended Petition. Compare App. at 26-37, 93 with App. at 108; See

      Id.

40.   Additionally, because 8650 Frisco, LLC, has already tendered service

      of these documents to the Attorney in Charge for Los Cucos,

      ordering that these documents be tendered again is unnecessarily

      duplicative. See In re CSX Corp. 124 S.W.3d 149, 153 (Tex. 2003).

41.   Respondent’s April Orders impose “a burden on the producing party

      far out of proportion to any benefit that may obtain to the requesting

      party” such that there simply is no adequate remedy on appeal. See

PETITION FOR WRIT OF MANDAMUS                                              23
      Id.

42.   For these reasons, a writ of mandamus should issue, requiring

      Respondent to vacate her April 1, 2015 Order Compelling Production

      of Documents and her April 27, 2015 Order Compelling Production of

      Documents and imposing sanctions on 8650 Frisco, LLC. See id;

      TEX. R. CIV. P. 215.1(b)(3)(D); see also App. at 1; 2-3.

                                  PRAYER

WHEREFORE, PREMISES CONSIDERED, Relators pray that this court

find that Respondent abused her discretion in compelling production of the

documents requested by the Real Parties in Interest and imposing

sanctions on the Relators, find that there is no adequate remedy by

appeal, and issue a writ of mandamus compelling Respondent to vacate

her April 1, 2015 order compelling discovery, and her April 27, 2015 order

compelling discovery and imposing sanctions.

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

PETITION FOR WRIT OF MANDAMUS                                            24
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 petition and conclude that every factual
statement in the petition is supported by competent evidence included in
the attached appendix or record and I certify that the documents attached
in the appendix are true and correct copies of the originals.

/s/ Paul J. Downey
Paul J. Downey

                     CERTIFICATE OF COMPLIANCE

I certify that there are 4907 words in this document, and that I relied on the
word count function of WordPerfect X6, which was used to prepare this
document.

/s/ Paul J. Downey
Paul J. Downey

                        CERTIFICATE OF SERVICE

      I certify that on May 6, 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

PETITION FOR WRIT OF MANDAMUS                                               25
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
Kelly Stephens
Texas Bar No. 19158300
P.O Box 79734
Houston, Texas 77279-9734
Tel. 281-394-3287
Fax 832-476-5460
kstephens@stephensdominitz.com

/s/ Paul J. Downey
Paul J. Downey




PETITION FOR WRIT OF MANDAMUS                                          26
                                 CAUSE NO. 2014-10896

LOS CUCOS MEXICAN CAFÉ VIII,                       § IN THE DISTRICT COURT
INC., LOS CUCOS MEXICAN                            §
CAFÉ IV, INC., MANUEL                              §
CABRERA, and SERGIO                                §
CABRERA                                            §
PLAINTIFFS,                                        §
                                                   §
V.                                                 § 133rd JUDICIAL DISTRICT
                                                   §
8650 FRISCO LLC, MANDONA                           §
LLC, GALOVELHO LLC,                                §
BAHTCHE LLC, CLAUDIO                               §
NUNES, AND DAVID JEIEL                             §
RODRIGUES                                          §
DEFENDANT.                                         § OF HARRIS COUNTY, TEXAS

                                APPENDIX AND RECORD
                                 TABLE OF CONTENTS

Exhibit A - Respondent’s Order dated April 1, 2015 Compelling Production
of Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 1

Exhibit B - Respondent’s Order dated April 27, 2015 Compelling
Production of Documents and Imposing Sanctions;. . . . . . . . . . . . . App. 2

Exhibit C - TEX. R. CIV. P. 21a.. . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 4

Exhibit D - TEX. R. CIV. P. 63.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 6

Exhibit E - TEX. R. CIV. P. 65.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 7

Exhibit F - TEX. R. CIV. P. 96. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 8

Exhibit G - TEX. R. CIV. P. 162. . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 9

Exhibit H - TEX. R. CIV. P. 192.3. . . . . . . . . . . . . . . . . . . . . . . . . . App. 10

PETITION FOR WRIT OF MANDAMUS                                                                     27
Exhibit I - TEX. R. CIV. P. 192.7. . . . . . . . . . . . . . . . . . . . . . . . . . . App. 12

Exhibit J - TEX. R. CIV. P. 215.1. . . . . . . . . . . . . . . . . . . . . . . . . . App. 13

Exhibit K - Plaintiff’s Original Petition. . . . . . . . . . . . . . . . . . . . . . . App. 15

Exhibit L - Plaintiff’s Set of Discovery Requests, April 14, 2014. . . App. 26

Exhibit M - Defendant’s Original Answer. . . . . . . . . . . . . . . . . . . . . App. 38

Exhibit N - Transcript of Hearing, July 28, 2014. . . . . . . . . . . . . . . App. 42

Exhibit O - Respondent’s July 28, 2014, Order Compelling Production of
Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 93

Exhibit P - August 5, 2014 Transcript of Settlement Agreement. . . App. 95

Exhibit Q - Plaintiff’s Fourth Amended Petition. . . . . . . . . . . . . . . App. 100

Exhibit R - Plaintiff’s Second Motion to Enforce Court’s Order. . . App. 111

Exhibit S - Defendant’s Response to Second Motion to Enforce.. App. 329

Exhibit T - Defendant’s Supplement to Response to Second Motion to
Enforce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 337

Exhibit U - Letter to Attorney Kelly Stephens regarding service of
Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 342

Exhibit V - Plaintiff’s Third Motion to Enforce Court’s Order. . . . . App. 360

Exhibit W - Defendant’s Response to Plaintiff’s Third Motion
to Enforce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 430

Exhibit X - Respondent’s Order Denying Defendant’s Motion to Transfer
Venue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 439

Exhibit Y - Unsworn Declaration of Paul J. Downey regarding Plaintiff’s

PETITION FOR WRIT OF MANDAMUS                                                                        28
Discovery Requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 440

Exhibit Z - Statement of No Evidence. . . . . . . . . . . . . . . . . . . . . . . App. 442




PETITION FOR WRIT OF MANDAMUS                                                               29
                        CAUSE NO. 2014-10896

LOS CUCOS MEXICAN CAFÉ VIII,         § IN THE DISTRICT COURT
INC., LOS CUCOS MEXICAN              §
CAFÉ IV, INC., MANUEL                §
CABRERA, and SERGIO                  §
CABRERA                              §
PLAINTIFFS,                          §
                                     §
V.                                   § 133rd JUDICIAL DISTRICT
                                     §
8650 FRISCO LLC, MANDONA             §
LLC, GALOVELHO LLC,                  §
BAHTCHE LLC, CLAUDIO                 §
NUNES, AND DAVID JEIEL               §
RODRIGUES                            §
DEFENDANT.                           § OF HARRIS COUNTY, TEXAS

          UNSWORN DECLARATION OF PAUL J. DOWNEY

1.   My name is Paul J. Downey. I am of sound mind, capable of making

     this unsworn declaration, and personally acquainted with the facts

     herein stated.

2.   I am a lawyer at Mosser Law, PLLC.

3.   I am one of the custodians of the records at Mosser Law, PLLC.

4.   Attached hereto are the following 444 pages of records from Mosser

     Law, PLLC. These records are kept by Mosser Law, PLLC in the

     regular course of business, and it was in the regular course of

     business of Mosser Law, PLLC, that an employee or representative

     of Mosser Law PLLC, with knowledge of the act or event recorded,
     made the records.

5.   The records were made at or near the time of the event, or

     reasonably soon thereafter.

6.   The records attached hereto are exact duplicates of the originals and

     contain:

     a.    Exhibit A- Respondent's Order dated April 1, 2015 Compelling

           Production of Documents;

     b.    Exhibit 8 - Respondent's Order dated April 27, 2015

           Compelling Production of Documents and Imposing Sanction;

     c.    Exhibit C- TEX. R. CIV. P. 21 a;

     d.    Exhibit D -TEX. R. CIV. P. 63;

     e.    Exhibit E- TEX. R. CIV. P. 65;

     f.    Exhibit F -TEX. R. CIV. P. 96;

     g.    Exhibit G- TEX. R. CIV. P. 162;

     h.    Exhibit H- TEX. R. CIV. P. 192.3;

     1.    Exhibit I- TEX. R. CIV. P. 192.7;

     J.    Exhibit J -TEX. R. CIV. P. 215.1 ;

     k.    Exhibit K - Plaintiff's Original Petition;

     I.    Exhibit L- Plaintiff's Set of Discovery Requests, April 14, 2014

     m.    Exhibit M - Defendant's Original Answer;
     n.   Exhibit N -Transcript of Hearing, July 28, 2014;

     o.   Exhibit 0 - Respondent's July 28, 2014 Order Compelling

          Production of Documents;

     p.   Exhibit P -August 5, 2014, Transcript of Settlement

          Agreement;

     q.   Exhibit Q - Plaintiff's Fourth Amended Petition ;

     r.   Exhibit R - Plaintiff's Second Motion to Enforce Court's Order;

     s.   Exhibit S - Defendant's Response to Second Motion to Enforce;

     t.   Exhibit T- Defendant's Supplement to Response to Second

          Motion to Enforce;

     u.   Exhibit U - Letter to Attorney Kelly Stephens regarding service

          of Documents;

     v.   Exhibit V- Plaintiff's Third Motion to Enforce Court's Order;

     w.   Exhibit W- Defendant's Response to Plaintiff's Third Motion to

          Enforce.

     x.   Exhibit X - Respondent's March 23, 2015 Order Denying

          Defendant's Motion to Transfer Venue

     y.   Exhibit Y- Unsworn Declaration of Paul J. Downey regarding

          Plaintiff's Discovery Requests.

My name is Paul James Downey, my date of birth is January 19, 1984, and
my address is C/0 Mosser Law, PLLC, 2805 Dallas Parkway, Suite 222,

Plano, Texas 75093, United States of America. I declare under penalty of

perjury that the foregoing is true and correct.

Executed in Collin County, State of Texas on the   5th   Day of May, 2015.



r/~R :~
Paul J . Downey        .,. "
Exhibit A
            Un
              of
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                          C
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                                  ffic
                                      e
                                         of
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                                                   Da
                                                      nie
                                                         lD
                                                            ist
                                                               rict
                                                                   C
                                                                     ler
                                                                        k




App. 1
Exhibit B
            Un
              of
                 fic
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                       C
                            op
                              yO
                                 ffic
                                     e
                                        of
                                          C
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                                               is
                                                  Da
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                                                                  C
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App. 2
Exhibit B
            Un
              of
                 fic
                    ial
                       C
                            op
                              yO
                                 ffic
                                     e
                                        of
                                          C
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                                               is
                                                  Da
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                                                           ist
                                                              rict
                                                                  C
                                                                    ler
                                                                       k




App. 3
Rule 21a. Methods of Service, TX R RCP Rule 21a




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part II. Rules of Practice in District and County Courts
        Section 1. General Rules (Refs & Annos)

                                            TX Rules of Civil Procedure, Rule 21a

                                                 Rule 21a. Methods of Service

                                                           Currentness


(a) Methods of Service. Every notice required by these rules, and every pleading, plea, motion, or other form of request required
to be served under Rule 21, other than the citation to be served upon the filing of a cause of action and except as otherwise
expressly provided in these rules, may be served by delivering a copy to the party to be served, or the party's duly authorized
agent or attorney of record in the manner specified below:


  (1) Documents Filed Electronically. A document filed electronically under Rule 21 must be served electronically through the
  electronic filing manager if the email address of the party or attorney to be served is on file with the electronic filing manager.
  If the email address of the party or attorney to be served is not on file with the electronic filing manager, the document may
  be served on that party or attorney under subparagraph (2).


  (2) Documents Not Filed Electronically. A document not filed electronically may be served in person, mail, by commercial
  delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.


(b) When Complete.


  (1) Service by mail or commercial delivery service shall be complete upon deposit of the document, postpaid and properly
  addressed, in the mail or with a commercial delivery service.


  (2) Service by fax is complete on receipt. Service completed after 5:00 p.m. local time of the recipient shall be deemed served
  on the following day.


  (3) Electronic service is complete on transmission of the document to the serving party's electronic filing service provider.
  The electronic filing manager will send confirmation of service to the serving party.


(c) Time for Action After Service. Whenever a party has the right or is required to do some act within a prescribed period after
the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added
to the prescribed period.


(d) Who May Serve. Notice may be served by a party to the suit, an attorney of record, a sheriff or constable, or by any other
person competent to testify.




    Exhibit ©C2015 Thomson Reuters. No claim to original U.S. Government Works.                                      App. 4       1
Rule 21a. Methods of Service, TX R RCP Rule 21a




(e) Proof of Service. The party or attorney of record shall certify to the court compliance with this rule in writing over signature
and on the filed instrument. A certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any
other person showing service of a notice shall be prima facie evidence of the fact of service. Nothing herein shall preclude any
party from offering proof that the document was not received, or, if service was by mail, that the document was not received
within three days from the date that it was deposited in the mail, and upon so finding, the court may extend the time for taking
the action required of such party or grant such other relief as it deems just.


(f) Procedures Cumulative. These provisions are cumulative of all other methods of service prescribed by these rules.


Credits
Aug. 18, 1947, eff. Dec. 31, 1947. Amended by orders of July 21, 1970, eff. Jan. 1, 1971; Oct. 3, 1972, eff. Feb. 1, 1973; July
11, 1977, eff. Jan. 1, 1978; June 10, 1980, eff. Jan. 1, 1981; Dec. 5, 1983, eff. April 1, 1984; April 24, 1990, eff. Sept. 1, 1990;
Dec. 11, 2013, eff. Jan. 1, 2014.


Editors' Notes

COMMENT--2013

     Rule 21a is revised to incorporate rules for electronic service in accordance with the Supreme Court's order--Misc.
     Docket No. 12-9206, amended by Misc. Docket Nos. 13-9092 and 13-9164--mandating electronic filing in civil cases
     beginning on January 1, 2014.



Notes of Decisions (327)

Vernon's Ann. Texas Rules Civ. Proc., Rule 21a, TX R RCP Rule 21a
Current with amendments received through 3/15/2015

End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




    Exhibit ©C2015 Thomson Reuters. No claim to original U.S. Government Works.                                          App. 5        2
Rule 63. Amendments and Responsive Pleadings, TX R RCP Rule 63




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part II. Rules of Practice in District and County Courts
        Section 4. Pleading
           A. General

                                             TX Rules of Civil Procedure, Rule 63

                                      Rule 63. Amendments and Responsive Pleadings

                                                           Currentness


Parties may amend their pleadings, respond to pleadings on file of other parties, file suggestions of death and make representative
parties, and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise
to the opposite party; provided, that any pleadings, responses or pleas offered for filing within seven days of the date of trial
or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge
is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to
the opposite party.


Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of July 26, 1960, eff. Jan. 1, 1961; April 24, 1990, eff. Sept. 1, 1990.



Notes of Decisions (724)

Vernon's Ann. Texas Rules Civ. Proc., Rule 63, TX R RCP Rule 63
Current with amendments received through 3/15/2015

End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




    Exhibit ©D2015 Thomson Reuters. No claim to original U.S. Government Works.                                          App. 6        1
Rule 65. Substituted Instrument Takes Place of Original, TX R RCP Rule 65




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part II. Rules of Practice in District and County Courts
        Section 4. Pleading
           A. General

                                           TX Rules of Civil Procedure, Rule 65

                                 Rule 65. Substituted Instrument Takes Place of Original

                                                         Currentness


Unless the substituted instrument shall be set aside on exceptions, the instrument for which it is substituted shall no longer be
regarded as a part of the pleading in the record of the cause, unless some error of the court in deciding upon the necessity of
the amendment, or otherwise in superseding it, be complained of, and exception be taken to the action of the court, or unless
it be necessary to look to the superseded pleading upon a question of limitation.


Credits
Oct. 29, 1940, eff. Sept. 1, 1941.



Notes of Decisions (101)

Vernon's Ann. Texas Rules Civ. Proc., Rule 65, TX R RCP Rule 65
Current with amendments received through 3/15/2015

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




    Exhibit ©E2015 Thomson Reuters. No claim to original U.S. Government Works.                                       App. 7        1
Rule 96. No Discontinuance, TX R RCP Rule 96




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part II. Rules of Practice in District and County Courts
        Section 4. Pleading
           C. Pleadings of Defendant

                                           TX Rules of Civil Procedure, Rule 96

                                                Rule 96. No Discontinuance

                                                         Currentness


Where the defendant has filed a counterclaim seeking affirmative relief, the plaintiff shall not be permitted by a discontinuance
of his suit, to prejudice the right of the defendant to be heard on such counterclaim.


Credits
Oct. 29, 1940, eff. Sept. 1, 1941.



Notes of Decisions (10)

Vernon's Ann. Texas Rules Civ. Proc., Rule 96, TX R RCP Rule 96
Current with amendments received through 3/15/2015

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




    Exhibit ©F2015 Thomson Reuters. No claim to original U.S. Government Works.                                       App. 8        1
Rule 162. Dismissal or Non-Suit, TX R RCP Rule 162




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part II. Rules of Practice in District and County Courts
        Section 7. Abatement and Discontinuance of Suit

                                            TX Rules of Civil Procedure, Rule 162

                                               Rule 162. Dismissal or Non-Suit

                                                          Currentness


At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case,
or take a non-suit, which shall be entered in the minutes. Notice of the dismissal or non-suit shall be served in accordance with
Rule 21a on any party who has answered or has been served with process without necessity of court order.

Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative
relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for
sanctions, attorney's fees or other costs, pending at the time of dismissal, as determined by the court. Any dismissal pursuant to
this rule which terminates the case shall authorize the clerk to tax court costs against dismissing party unless otherwise ordered
by the court.


Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Dec. 5, 1983, eff. April 1, 1984; July 15, 1987, eff. Jan. 1, 1988.



Notes of Decisions (639)

Vernon's Ann. Texas Rules Civ. Proc., Rule 162, TX R RCP Rule 162
Current with amendments received through 3/15/2015

End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




    Exhibit ©G2015 Thomson Reuters. No claim to original U.S. Government Works.                                         App. 9        1
192.3. Scope of Discovery, TX R RCP Rule 192.3




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part II. Rules of Practice in District and County Courts
        Section 9. Evidence and Discovery (Refs & Annos)
           B. Discovery
             Rule 192. Permissible Discovery: Forms and Scope; Work Product; Protective Orders; Definitions
             (Refs & Annos)

                                          TX Rules of Civil Procedure, Rule 192.3

                                                  192.3. Scope of Discovery

                                                          Currentness


(a) Generally. In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject
matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense
of any other party. It is not a ground for objection that the information sought will be inadmissible at trial if the information
sought appears reasonably calculated to lead to the discovery of admissible evidence.

(b) Documents and Tangible Things. A party may obtain discovery of the existence, description, nature, custody, condition,
location, and contents of documents and tangible things (including papers, books, accounts, drawings, graphs, charts,
photographs, electronic or videotape recordings, data, and data compilations) that constitute or contain matters relevant to the
subject matter of the action. A person is required to produce a document or tangible thing that is within the person's possession,
custody, or control.

(c) Persons with Knowledge of Relevant Facts. A party may obtain discovery of the name, address, and telephone number of
persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case. A person
has knowledge of relevant facts when that person has or may have knowledge of any discoverable matter. The person need not
have admissible information or personal knowledge of the facts. An expert is “a person with knowledge of relevant facts” only
if that knowledge was obtained first-hand or if it was not obtained in preparation for trial or in anticipation of litigation.

(d) Trial Witnesses. A party may obtain discovery of the name, address, and telephone number of any person who is expected to
be called to testify at trial. This paragraph does not apply to rebuttal or impeaching witnesses the necessity of whose testimony
cannot reasonably be anticipated before trial.

(e) Testifying and Consulting Experts. The identity, mental impressions, and opinions of a consulting expert whose mental
impressions and opinions have not been reviewed by a testifying expert are not discoverable. A party may discover the following
information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been
reviewed by a testifying expert:

  (1) the expert's name, address, and telephone number;

  (2) the subject matter on which a testifying expert will testify;

  (3) the facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed
  or made in connection with the case in which the discovery is sought, regardless of when and how the factual information
  was acquired;




    Exhibit ©H2015 Thomson Reuters. No claim to original U.S. Government Works.                                 App. 10        1
192.3. Scope of Discovery, TX R RCP Rule 192.3


  (4) the expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought,
  and any methods used to derive them;

  (5) any bias of the witness;

  (6) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared
  by or for the expert in anticipation of a testifying expert's testimony;

  (7) the expert's current resume and bibliography.

(f) Indemnity and Insuring Agreements. Except as otherwise provided by law, a party may obtain discovery of the existence
and contents of any indemnity or insurance agreement under which any person may be liable to satisfy part or all of a judgment
rendered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the
indemnity or insurance agreement is not by reason of disclosure admissible in evidence at trial.

(g) Settlement Agreements. A party may obtain discovery of the existence and contents of any relevant portions of a settlement
agreement. Information concerning a settlement agreement is not by reason of disclosure admissible in evidence at trial.

(h) Statements of Persons with Knowledge of Relevant Facts. A party may obtain discovery of the statement of any person with
knowledge of relevant facts--a “witness statement”--regardless of when the statement was made. A witness statement is (1) a
written statement signed or otherwise adopted or approved in writing by the person making it, or (2) a stenographic, mechanical,
electrical, or other type of recording of a witness's oral statement, or any substantially verbatim transcription of such a recording.
Notes taken during a conversation or interview with a witness are not a witness statement. Any person may obtain, upon written
request, his or her own statement concerning the lawsuit, which is in the possession, custody or control of any party.

(i) Potential Parties. A party may obtain discovery of the name, address, and telephone number of any potential party.

(j) Contentions. A party may obtain discovery of any other party's legal contentions and the factual bases for those contentions.


Credits
Aug. 5, 1998 and amended Nov. 9, 1998, eff. Jan. 1, 1999.



Notes of Decisions (179)

Vernon's Ann. Texas Rules Civ. Proc., Rule 192.3, TX R RCP Rule 192.3
Current with amendments received through 3/15/2015

End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




    Exhibit ©H2015 Thomson Reuters. No claim to original U.S. Government Works.                                        App. 11         2
192.7. Definitions, TX R RCP Rule 192.7




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part II. Rules of Practice in District and County Courts
        Section 9. Evidence and Discovery (Refs & Annos)
           B. Discovery
             Rule 192. Permissible Discovery: Forms and Scope; Work Product; Protective Orders; Definitions
             (Refs & Annos)

                                          TX Rules of Civil Procedure, Rule 192.7

                                                       192.7. Definitions

                                                          Currentness


As used in these rules--

(a) Written Discovery means requests for disclosure, requests for production and inspection of documents and tangible things,
requests for entry onto property, interrogatories, and requests for admission.

(b) Possession, Custody, or Control of an item means that the person either has physical possession of the item or has a right
to possession of the item that is equal or superior to the person who has physical possession of the item.

(c) A Testifying Expert is an expert who may be called to testify as an expert witness at trial.

(d) A Consulting Expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of
litigation or in preparation for trial, but who is not a testifying expert.


Credits
Aug. 5, 1998 and amended Nov. 9, 1998, eff. Jan. 1, 1999.



Notes of Decisions (10)

Vernon's Ann. Texas Rules Civ. Proc., Rule 192.7, TX R RCP Rule 192.7
Current with amendments received through 3/15/2015

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




    Exhibit ©I 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     App. 12         1
215.1. Motion for Sanctions or Order Compelling Discovery, TX R RCP Rule 215.1




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part II. Rules of Practice in District and County Courts
        Section 9. Evidence and Discovery (Refs & Annos)
           B. Discovery
             Rule 215. Abuse of Discovery; Sanctions (Refs & Annos)

                                           TX Rules of Civil Procedure, Rule 215.1

                               215.1. Motion for Sanctions or Order Compelling Discovery

                                                          Currentness


A party, upon reasonable notice to other parties and all other persons affected thereby, may apply for sanctions or an order
compelling discovery as follows:

(a) Appropriate Court. On matters relating to a deposition, an application for an order to a party may be made to the court in
which the action is pending, or to any district court in the district where the deposition is being taken. An application for an
order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken. As to all
other discovery matters, an application for an order will be made to the court in which the action is pending.

(b) Motion.

  (1) If a party or other deponent which is a corporation or other entity fails to make a designation under Rules 199.2(b)(1)
  or 200.1(b); or

  (2) If a party, or other deponent, or a person designated to testify on behalf of a party or other deponent fails:

     (A) to appear before the officer who is to take his deposition, after being served with a proper notice; or

     (B) to answer a question propounded or submitted upon oral examination or upon written questions; or

  (3) if a party fails:


     (A) to serve answers or objections to interrogatories submitted under Rule 197, 1 after proper service of the interrogatories;
     or

     (B) to answer an interrogatory submitted under Rule 197; or


     (C) to serve a written response to a request for inspection submitted under Rule 196, 2 after proper service of the request; or

     (D) 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 a designation, an appearance, an answer or answers, or inspection
     or production in accordance with the request, or apply to the court in which the action is pending for the imposition of
     any sanction authorized by Rule 215.2(b) without the necessity of first having obtained a court order compelling such
     discovery.


    Exhibit ©J 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   App. 13       1
215.1. Motion for Sanctions or Order Compelling Discovery, TX R RCP Rule 215.1




     When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination
     before he applies for an order.

     If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered
     to make on a motion pursuant to Rule 192.6.

(c) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure
to answer.

(d) Disposition of Motion to Compel: Award of Expenses. If the motion is granted, the court shall, after opportunity for hearing,
require a party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them
to pay, at such time as ordered by the court, the moving party the reasonable expenses incurred in obtaining the order, including
attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances
make an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment.

If the motion is denied, the court may, after opportunity for hearing, require the moving party or attorney advising such motion
to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including
attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make
an award of expenses unjust.

If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the
motion among the parties and persons in a just manner.

In determining the amount of reasonable expenses, including attorney fees, to be awarded in connection with a motion, the trial
court shall award expenses which are reasonable in relation to the amount of work reasonably expended in obtaining an order
compelling compliance or in opposing a motion which is denied.

(e) Providing Person's Own Statement. If a party fails to comply with any person's written request for the person's own statement
as provided in Rule 192.3(h), the person who made the request may move for an order compelling compliance. If the motion
is granted, the movant may recover the expenses incurred in obtaining the order, including attorney fees, which are reasonable
in relation to the amount of work reasonably expended in obtaining the order.


Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Aug. 5, 1998, and Nov. 9, 1998, eff. Jan. 1, 1999.



Notes of Decisions (51)



Footnotes
1      Vernon's Ann.Rules Civ.Proc., rule 197.1 et seq.
2      Vernon's Ann.Rules Civ.Proc., rule 196.1 et seq.
Vernon's Ann. Texas Rules Civ. Proc., Rule 215.1, TX R RCP Rule 215.1
Current with amendments received through 3/15/2015

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




    Exhibit ©J 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    App. 14         2
03/12/2014   21:51                                                                                   #0650 P.002 /011




                                           CAUS~NO.
                                                          t,D/4./- /IJ9''
                                                         _____________


             LOS CUCOS MEXICAN CAFE vm,                   §         IN THE DISTRICT COURT OF
             INC., LOS CUCOS MEXICAN CAFE' §
             IV, INC., MANUEL CAB.RERA, and §
             SERGIO CABRERA                 §
                                            §
                         Plaintilfs,        §
                                            §
             vs.                            §                       HARRIS cOUNTY, TEXAS
                                            §
             8650 FRISCO, LLC d/b/a ESTILO§
             GAUCHO BRA.ZlLIAN STEAKHOUSE, §
             MANDONA, LLC, GALOVELHO, LLC, §
             BAHTCHE, LLC, CLAUDIO NUNES    §
                                                                        ,.,~.
             and DAVID JEIEL RODRIGUES      §
                                            §
                         Derendan~.         §                   /JJ-JUDlCIALDISTRICf
                                         PLAINTIFF'S ORIGINAL PETITION

                     Plaintiff>, Los Cucos Mexican Cafe Vlll, lnc., Los Cucos Mexican Cafe IV, Inc., Manuel

             Cabrera and Sergio Cabrera, file this their Original Petition against Defendants, 8650 Frisco,

             LLC d/b/a Estilo Gaucho Brazilian Steak.house, Man dona, LLC, Galovelho, LLC, Bahtche, LLC,

             Claudio Nunes alk/a Alex Nunes and David Jcicl Rogrigues, and for cause of action would show:

                                                 Discovery Control Plan

                     I.     Plaintiffs intend to conduct discovery under Level 3 of Rule 190.3 of the Texas

             Rules of Civil Procedure.

                     2.     Plaintiffs seek damages within the jurisdictional limits of this Court, monetary

             relief over $1,000,000.

                                                          Parties

                     3.     Plaintiff, Los Cucos Mexican Cafe VI!I, Inc., ("Los Cucos VHJ") is a Texas

             Corporation with i~ principal place ofbusiness in Houston, Hanis County, Texas.



                                                        Page 1 oflO




         Exhibit K                                                                                            App. 15
03/12/2014   21:51                                                                                #0650 P.003 /011




                      4.   Plaintiff, Los Cucos Mexican Cafe IV, Inc., ("Los Cucos IV") is a Texas

             Corporation with its principal place of business in Houston, Harris County, Texas.

                      5.   Plaintiff, Manuel Cabrera is an individual who resides in Austin County, Texas.

                      6.   Plaintiff. Sergio Cabrera is an individual who resides in Houston, Harris County,

             Texas.

                      7.   Defendant, 8650 Frisco, LLC, ("8650 Frisco") is a Texas limited liability

             company doing business as Estilo Gaucho BrBJ;ilian Steakhousc, with its principal place of

             business at 8650 llighway 121, Frisco, Collin County, Texas, which may be located for service

             of process by and through its Registered Agent:

                           Hoftinan Kaliser & Messina, P.C.
                           17950 Preston Road, Suite 230
                           Dallas, Dallas County, Texas 75252

                      8.    Defendant, Mandona, LLC, ("Mandona") is a Texas limited liability company

             with its principal place of bu5iness at 8650 Highway 121, Frisco, Collin County, Texas, which

             may be located for service of process by and through its Registered Agent:

                           Hoffman Kaliser & Messina, P.C.
                           17950 Preston Road, Suite 230
                           Dallas, Dallas County, Texas 75252

                      9.   Defendant, Galovelho, LLC, ("Galovelho") is a Texas limited liability company

             with its principal place of business at 8650 Highway 121, Frisco, Collin County, Texas, which

             may be located for service of process by and through its Registered Agent:

                           Hoffman Kaliser & Messina, P.C.
                           17950 Preston Road, Suite 230
                           Dallas, Dallas County, Texas 75252




                                                       Pagc2 oflO




         Exhibit K                                                                                      App. 16
03/12/2014   21:52                                                                                     #0650 P.004 /011




                     I 0.    Defendant, Bahtche, LLC, ("Bahtche") is a Texas limited liability company with

             its principal place of business at 8650 Highway 121, Frisco, Collin County, Texas, which may be

             located for service of process by and through its Registered Agent;

                             Hoffman Kaliser & Messina, P.C.
                             17950 Preston Road, Suite 230
                             Dallas, Dallas County, Texas 75252

                     II.     Defendant, Claudio Nunes a/kJa Alex Nunes ("Nunes") is in individual citizen of

             Texas who may be located for service of process at his principal place of business:

                             Claudio "Alex" Nunes
                             8650 HW 121
                             Frisco, Collin County, Texas 75034

                     12.     Defendant, David Jeiel Rodrigues ("Rodrigues") is in individual citizen of Texas

             who may be located for service of process at his principal place of business:

                             David Jciel Rodrigues
                             8650HW 121
                             Frisco, Collin County, Texas 75034


                                                    Venue & Jurisdiction

                     13.    Venue is proper under TEx. Clv. PIU\C. & RllM. Com;§ l5.002(a)(l) because a

             substantial part of the events giving rise to this lawsuit occurred within this county.

                     14.    Jurisdiption is proper in this Court because the parties are all Texas residents and

             the amount in controversy is within the jurisdictional limits of the court.

                                                    Factual Background

                     15.     Manuel Cabrera and Sergio Cabrera arc the owners and operators of a number of

             Mexican restaurants branded and known as Los Cucos Mexican Cafe.                Each restaurant is a

             separate legal entity registered with the State of Texas. Los Cucos VID and Los Cucos TV are

             two of these entities.

                                                         Page 3 oflO




         Exhibit K                                                                                          App. 17
03/12/2014   21:52                                                                                         #0650 P.005 /011




                     16.    Sometime in 2010, Nunes approached Sergio Cabrera with the idea to enter into a

             venture to build and operate a Brazilian steakhouse.

                     17.    Initially, the parties agreed that Los Cucos Vlli, Inc., would fund the construction

             and outfitting of the restaurant and that Nunes would manage the construction and build out, and

             then Nunes would operate the restaurant. The parties agreed that Los Cucos Vlll would support

             the operating restaurant until such time as it began to make money on a consistent basis by:

                            a.        directly funding the construction and outfitting of the structure;

                            b.        guaranteeing the property lease on the real estate;

                            c.        guaranteeing the food and drink vendors supplying the restaurant; and,

                            d.        contributing such cash flow such that for the first month, the

                                      restaurant could pay Nunes a management fee.

                     18.    At some point in the negotiation, Rodrigues entered the picture as a partner with

             Nunes in the anticipated project.

                     19.    Eventually, in approximately March, 2012, the project developed into the

             following corporate structure:

                            a         8650 Frisco was set up to be the operating restaurant entity.

                            b.        Galovelho was set up to be a member in 8650 Frisco and to represent the

                            ownership of Nunes and Rodriques.

                            c.        Mandona was set up by Nunes and Rodriques to be the manager of 8650

                            Frisco.

                            d.        Los Cucos VIII was to be a member in 8650 Frisco and to represent the

                            interest of Manuel and Sergio Cabrera.




                                                           Page 4 oflO




         Exhibit K                                                                                              App. 18
03/12/2014   21:53                                                                                    #0650 P.006 /011




                             e.     All assets contributed to or which were developed as the property of the

                             venture were to be owned by 8650 Frisco.

                     20.     In the beginning, as agreed, bank accounts were set up in the name of 8650 Frisco

             and all parties had access to such accounts.

                     21.     Further, it was the agreement that after the first month of operation:

                             a.     If the available distributable cash was less than or equal to $20,000.00, it

                             would be split 50/50 between the members;

                             b.     lfthe available distributable cash was greater than $20,000 and Los Cucos

                             VIII had not been fully paid back its cash contributions the cash would be paid

                             $10,000 to Galovelho and the remainder would be paid to Los Cueos Vlll; and,

                             c.     lf the available distributable cash was greater than $20,000 and Los Cuco

                             Vlll had been fully paid back its cash contributions the cash would be paid to

                             each member on a 50/50 basis.

                     22.     Los Cucos Vlli put in excess of$1.2 million into the project from 2010 through

             early 2013.

                     23.     Los Cucos TV paid for and loaned to the project equipment and furniture costing

             in excess of $60,000. In particular, Los Cucos TV paid for two large Brazilian grills and had

             them shipped to the United States. These grills are highly specialized and not readily available

             on the U.S. market.

                     24.     Manuel and Sergio Cabrera were required to and did personally guarantee the real

             estate lease.

                     ?"
                     -~-     The restaurant has been operating since Feb 20!3 and on information and belief is

             generating $40,000.00 to $60,000.00 per month in distributable cash.



                                                         Page5ofl0




         Exhibit K                                                                                         App. 19
03/12/2014   21:53                                                                                 #0650 P.007 /011




                     26.   In March 2012, Los Cucos VIII began to propose a written company agreement to

             control tbe operation of tbe project. Galovclho, Nunes, Rodrigues and Mandona have refused

             and continue to refuse to execute such agreement.

                     27.   Upon information and belief 8650 Frisco has over the last year of operation buill a

             cash surplus in excess of$180,000.00, yet Los Cucos has not been received any distributions.

                     28.   PlaintiffS recently discovered tbat Galovelho, Nunes, Rodrigues and Mandona

             have moved the bank accounts of 8650 Frisco and arc denying Los Cucos Vlll access to same in

             violation of the agreement.

                     29.   Galovelho, Nunes, Rodrigues and Mandona have taken total control of the project

             and have not issued Los Cucos VITJ its agreed ownership interest in 8650 Frisco. In addition,

             they have hidden the partnership assets and bank accounts and refuse to account for same to Los

             Cucos Vlll.

                     30.   It has been learned tbat Bahtche, a company owned and controlled by Nunes and

             Rodrigues has applied to the United States Patent and Trademark office tbr a Trademark on the

             name Ei.tilo Gaucho Brazilian Steakhouse. This name and/or mark is the property of 8650 Frisco.

                     31.   Los Cucos IV has made written demand for the return ofits property. 8650 Frisco,

             Galovclho, Mandona, Nunes, and Rodrigues have refused to return same and/or have refused to

             allow Los Cucos TV entry upon the property to collect said property.



                                                    Causes of Action

             A.      Breacb of Contract

                     32.    Los Cucos VIII asserts a cause of action for breach of the agreement to develop

             and operate 8650 Frisco as to all Defendants.



                                                       Page6ofl0




         Exhibit K                                                                                       App. 20
03/12/2014   21:54                                                                                 #0650 P.008 /011




             B.      Conversion

                     33.    Defendants have converted Los Cucos IV' s properly by wrongfully exercising

             dominion and control over it.

                     34.    Defendants have converted certain bank accounts belonging to 8650 Frisco.

                     35.    Bahtche, the direction and control of Nunes and Rodrigues has converted the

             trade name and mark of8650 Frisco.

             C.      Fraud/Fraudulent Inducement

                     36.    Defendants' conduct constitutes actual fraud against Los Cucos VIII.

                     37.    The acts of fraud were intentional and were meant specifically to enrich

              Defendants to the detriment of Los Cucos VIII. Los Cucos VJII has suffered damage as a result

             of Defendant~' fraudulent conduct.

                     38.    Defendants' fraudulent representations were made with the specific intent to

             cause and have caused Manuel and Sergio Cabrera to guarantee the lease for 8650 Frisco.

             D.      Civil Conspiracy

                     39.    Nunes, Rodrigues, Mandona, Galovelho, 8650 Frisco and Bahtche have combined

             to accomplish the unlawful purposes (or lawful purposes by unlawful means) of fraud, breach of

             fiduciary duty, and conversion as enumerated above. Defendants had a meeting of the minds on

             their objects and courses of action.

             E.      AlterEgo

                     40.    Plaintiffs assert that 8650 Frisco, Mandona, Galovelho and Bahtche are a mere

             tools or business conduits (alter ego) of Nunes and Rodrigues. Nunes and Rodrigues are the

             principal/only shareholders of 8650 Frisco, Mandona, Galovelho and Baheche, such that there is

             such unity between Nunes/Rodrigues and 8650 Frisco, Mandona, Galovclho and Baheche, that



                                                       Page 7 oflO




         Exhibit K                                                                                      App. 21
03/12/2014   21:54                                                                                       #0650 P.009 /011




             any separation of entities has ceased from a liability perspective. As such there is joint and

             several liability between Nunes, Rodrigues and 8650 Frisco, Man dona, Galovelho and Baheche.

             F.      Unjust Enrichment/Quantum Meruit

                     4 I.     Plaintiffs assert that Defendants have been unjustly enriched by the receipt of

             money and the receipt and use of property belonging to Plaintiffs. Defendants received the

             money and property knowing that the Plaintiffs expected to be compensated, but Defendants

             made use of and benefited from the money and property without returning any value to Plaintiffs.

             F.      Accounting

                     42.    Los Cucos Vlll seeks an accounting from Nunes, Rodrigues and 8650 Frisco,

             Mandona, Galovelho and Babcchc for amounts due under the agreement that have been diverted

             by Defendants.

                                                            Damages

                     43.    Plaintiffs seck actual damages in excess of the minimum jurisdiction of this court.

                     44.      Plaintiffs seek exemplary damages in amount not to exceed twice the actual

             damages shown.

                                                        Attorneys' Fees

                     45.      Plaintiff is entitled to recover the attorneys' fees that it incurs in prosecuting the

             above stated claims pursuant to Chapters 37 and 38 the TEX Crv. PRAC. & REM. CoDE as well as

             oilier laws and statutes of the State of Texas.

                                                     Conditions Precedent

                     46.      All conditions precedent to Plaintiffs' claims and causes of action have been

             performed or have occurred.




                                                          Page 8 oflO




         Exhibit K                                                                                             App. 22
03/12/201~   21:54                                                                                      #0650 P.010 /011




                                                          Pr.ayer

                     47.   For these reasons, Plaintiffs ask that it be awarded the following relief:

                           a. that the Court order an accounting;

                           b. that Plaintiffs be awarded their actual, special and consequential damages;

                           c. that Plaintiffs be awarded exemplary damages;

                           d. that Plaintiffs be awarded costs and attorneys' fees;

                           e. that Plainti!Is be awarded pre and post-judgment interest; and

                           f. that Plaintiffs receive all other relief, at law or in equity, to which they may be

                              justly entitled.



                                                          Respectfully submitted,
                                                          STEPHENS & DoMNITZ, PLLC


                                                                    Is/Kelly D. Stephens
                                                                    Kelly D. Stephens
                                                                    SBN: 19158300

                                                          P.O. Box 79734
                                                          Houston, Texas 77279-9734
                                                          Tel: 281-394-3287
                                                          Fax: 832-476-5460
                                                          kstephensr@stephensdomnitT..com

                                                          ATTORNEY FOR PLAINTIFFS
                                                          LOS CUCOS MEXICAN CAFE Vill, Inc.,
                                                          LOS CUCOS MEXICAN CAFE IV, Inc.,
                                                          MANUEL CABRERA, and
                                                          SERGIO CABRERA




                                                        Page 9 oflO




         Exhibit K                                                                                           App. 23
03/12/201<   21:55                                       #0650 P.Oll /011




                        HAWASH MEADE GASTON NEESE & CICACK LLP

                        /s/ Andrew K. Meade
                        Andrew K. Meade
                        State Bar No. 24032854
                        2118 Smith Street
                        Houston, Texas 77002
                        713-658-9006 (Direct & Fax)
                        ameade@hmgllp.com

                        ATTORNEYSFORPLAlNTITFS
                        LOS CUCOS MEXICAN CAFE Vlli, Inc.,
                        LOS CUCOS MEXICAN CAFE IV, Inc.,
                        MANUELCABRERA,ood
                        SERGIO CABRERA




                     Page 10 oflO



         Exhibit K                                           App. 24
03/12/2014    21:51                                                                                      #0650 P.OOl /011




     STEPHENS & DoMNITZ, PLLC
     ATTORNEYS AT lAW


     P.o. Box 79734                                                     TELI:PHONE        281-394-3287
     HOUSTON, TEXAS 77279-9734                                          FACS/Mil£         713-476-0460




               To:      Nick Mosser, The Mosser Law Firm       From:     Kelly D. Stephens

               Fax:     972-267-5072                           Pages:      11 . Including cover

               Phone:                                          Date:     March 13, 2014

               Re:      Los cucos v. 8650 Frisco               CC:


               0 Urgent       D For Review          0 Please Comment     0 Please Reply       0 Please Recycle



               • Comments:

                      Copy of Plaintiffs Original Petition




             Exhibit K                                                                                        App. 25
                               CAUSE NO. 2014-01089

LOS CUCOS MEXICAN CAFE                     §      IN THE DISTRICT COURT OF
VIII, INC.; LOS CUCOS MEXICAN              §
CAFE IV, INC.; MANUEL                      §
CABRERA; and SERGIO                        §
CABRERA,                                   §
             Plaintiffs                    §
                                           §
v.                                         §
                                           §      HARRIS COUNTY, TEXAS
8650 FRISCO, LLC D/B/A ESTILO              §
GAUCHO BRAZILIAN                           §
STEAKHOUSE; MANDONA, LLC;                  §
GALOVELHO, LLC; BAHTCHE,                   §
LLC; CLAUDIO NUNES; and                    §
DAVID JEIEL RODRIGUES,                     §
           Defendants                      §      133rd JUDICIAL DISTRICT


     PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS TO 8650 FRISCO, LLC
              D/B/A ESTILO GAUCHO BRAZILIAN STEAKHOUSE

TO:    Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse, by and
       through its counsel of record, Nicholas D. Mosser and Benjamin Casey, Mosser
       Law PLLC, 17110 Dallas Parkway, Suite 290, Dallas, Texas 75248.

       Pursuant to the Texas Rules of Civil Procedure, Plaintiffs Los Cucos Mexican

Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera

(“Plaintiffs”) serve their First Set of Requests for Admissions, Requests for Production

and First Set of Interrogatories on Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho

Brazilian Steakhouse (“Defendant”) as authorized by Rules 196 and 198, TEX. R. CIV. P.

Defendant must specifically admit or deny and produce all requested documents in its

possession, custody, or control (as they are kept in the ordinary course of business or

organized and labeled to correspond with categories in each request) for inspection and




Exhibit L                                                                     App. 26
copying, and not more than 30 days after service, at the office of HAWASH MEADE

GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.

                                            Respectfully submitted,

                                            STEPHENS & DOMNITZ, PLLC

                                            /s/ Kelly D. Stephens
                                            Kelly D. Stephens
                                            SBN: 19158300
                                            P.O. Box 79734
                                            Houston, Texas 77279-9734
                                            Tel: 281-394-3287
                                            Fax: 832-476-5460
                                            kstephens@stephensdomnitz.com


                                            HAWASH MEADE GASTON NEESE
                                            & CICACK LLP


                                             /s/ Andrew K. Meade
                                            Andrew K. Meade
                                            State Bar No. 24032854
                                            Jeremy M. Masten
                                            State Bar No. 24083454
                                            2118 Smith Street
                                            Houston, Texas 77002
                                            713-658-9006 (Direct & Fax)
                                            ameade@hmgllp.com
                                            jmasten@hmgllp.com

                                            ATTORNEYS FOR PLAINTIFFS
                                            LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
                                            LOS CUCOS MEXICAN CAFÉ IV, Inc.,
                                            MANUEL CABRERA, and
                                            SERGIO CABRERA




                                            2

Exhibit L                                                                 App. 27
                              CERTIFICATE OF SERVICE

       A true and correct copy of the foregoing document has been served to the
following pursuant to the Texas Rules of Civil Procedure on April 14, 2014.

            Via Fax: 972-267-5072 and
            email: courtdocuments@mosserlaw.com
            James C. Mosser
            Nicholas D. Mosser
            Mosser Law PLLC
            17110 Dallas Pkwy, Suite 290
            Dallas, TX 75248


                                     /s/ Andrew K. Meade
                                     Andrew K. Meade




                                           3

Exhibit L                                                             App. 28
                            DEFINITIONS AND INSTRUCTIONS

        1.     As used throughout this request (including these definitions and
instructions), the term “documents” means each and every document (as defined in
Rule 34, FED. R. CIV. P.), all electronically stored information, and each and every
tangible thing, including but not limited to both electronic and hard copy documents, in
the possession, custody, or control of Plaintiff, whether a copy, draft, or original,
wherever located, with all exhibits, attachments, and schedules, including but not
limited to the following: correspondence and drafts of correspondence; notes or
summaries of conversations; income tax returns, forms, schedules, or worksheets; inter-
and intra-office memoranda; reports; comments; worksheets; plans; minutes; notes;
notices or notifications; findings; conclusions; memoranda; contracts or agreements of
any kind; brochures, circulars, bulletins, advertisements, sales catalogs or literature;
packages, packaging, and package inserts; notes, records, summaries, or other reports of
conferences, meetings, visits, surveys, discussions, inspections, examinations, reviews
or telephone conversations; purchase orders, quotations, estimates, invoices, bids,
receipts, or acknowledgements, including the reverse sides of all such documents with
printing, typing or writing on the reverse sides; bills of lading and other shipping
documents; credit agreements or credit memoranda; contract or lease offers or
proposals; executed or proposed agreements, contracts, franchise agreements, licenses,
leases, insurance policies and riders, or options; proposals; diaries; desk calendars,
appointment books, or telephone call books; property valuations or appraisals, and
their updates; affidavits, depositions, transcripts and statements, or summaries or
excerpts thereof; stenographic notes; books and records; financial data; stock certificates
and evidence of stock ownership; newspaper or magazine articles; pamphlets, books,
texts, notebooks, magazines, manuals, journals, and publications; notepads, tabulations,
data compilations, calculations, or computations; schedules; drafts; charts and maps;
forecasts and projections; drawings, designs, plans, specifications, graphs, blueprints,
sketches, or diagrams; orders; pleadings and court filings; checks and check stubs (front
and back); records or transcripts of statements, depositions, conversations, meetings,
discussions, conferences or interviews, whether in person or by telephone or by other
means; workpapers; printouts or other stored information from computers or other
information retention or processing systems; e-mail or electronic mail or
communications, in whatever form; instant messages in whatever form; photographic
matter or sound reproduction matter however produced, reproduced or stored;
government reports, regulations, filings or orders; any other written, printed, typed,
taped, recorded, or graphic matters; any exhibits, attachments, or schedules to or with
the foregoing; any drafts of the foregoing; and any copies or duplicates of the foregoing
that are different because of marginal or handwritten notations, or because of any
markings thereon or alterations thereof.

       2.    All electronically stored information should be produced as an electronic
copy, preserving all metadata.

                                                4

Exhibit L                                                                        App. 29
       3.    Throughout this request (including these definitions and instructions), the
term “communications” means any and all of the following: writings, oral
communications, electronic communications (including emails, text messages, and
instant messages), wire communications, conversations by telephone, meetings, and
any contact, oral or written, formal or informal, at any time or place, and under any
circumstance whatsoever, in which information of any nature was transmitted or
exchanged in any form or by any medium.

       4.     Throughout this request (including these definitions and instructions), the
phrases “relating to,” “relates to,” “related to,” "regarding," and “in relation to” mean
constituting or evidencing, and directly or indirectly mentioning, describing, referring
to, pertaining to, being connected with, reflecting upon, or concerning the stated subject
matter.

      5.    Throughout this request (including these definitions and instructions), the
words “any” and “all” shall be considered to include “each” and “each and every.”

       6.     Throughout this request (including these definitions and instructions), the
singular of any word shall include the plural, and the plural of any word shall include
the singular. The masculine form shall include the feminine and neutral forms. The
terms “and” and “or” shall mean “and/or” inclusively.

       7.     Throughout this request (including these definitions and instructions), the
terms “you” and “your” refer to the party responding to the request, as well as his, her,
or its present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on behalf of or
under the control of the responding party.

       8.      Throughout this request (including these definitions and instructions),
“Defendant” and “Frisco” mean 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian
Steakhouse, a named defendant in this matter. The term “Defendant” or “Frisco” also
includes Defendant’s present and former agents, employees, counselors, consultants,
representatives, attorneys, and any other person or entity acting or purporting to act on
its behalf or under its control.

       9.     Throughout this request (including these definitions and instructions), the
term “Plaintiff” or “Plaintiffs” means any named Plaintiff in this matter, including their
present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on its behalf or
under their or its control.

      10.   Throughout this request (including these definitions and instructions),
“Los Cucos” means Los Cucos Mexican Café VIII, Inc. and Los Cucos Mexican Café IV,

                                               5

Exhibit L                                                                       App. 30
Inc., named defendants in this matter and includes any present and former agents,
employees, counselors, consultants, affiliates, subsidiaries, representatives, attorneys,
and/or any other person or entity acting or purporting to act on the behalf or under the
control of Los Cucos.

       11.   If you contend that any document requested here need not be produced
under a privilege or other protection against disclosure, provide an itemized log of the
document(s) being withheld from production. In the log, specify the date of each such
document, its author(s), all recipient(s), and any person(s) copied on the document, the
paragraph of this request to which the document responds, and a brief description of
the document’s contents that supplies enough detail to assess the applicability of the
privilege or protection being claimed. In addition, please specify the privilege or
protection upon which you rely as their basis for withholding the document(s) from
production.

      12.    If you intend to produce any electronic document or information in
response to this request, please contact counsel for Los Cucos to discuss the form in
which such electronic document or information will be produced.

      13.   If you have any questions about this request, please contact counsel for
Los Cucos promptly for clarification.

       14.     Unless otherwise stated, the time period covered by this request is January
1, 2010 to the present.

      15.    You are reminded of your duty under Rule 193.5, Tex. R. Civ. P., to amend
or supplement any response that was incomplete or incorrect when made or that,
although correct and complete when made, is no longer complete and correct.




                                               6

Exhibit L                                                                       App. 31
                               REQUESTS FOR ADMISSIONS

Admit or deny the following:
      Admission No. 1. 8650 Frisco, LLC received money from Los Cucos Mexican
Café VIII, LLC.
      Admission No. 2. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as a loan.

      Admission No. 3. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as an investment.

      Admission No. 4. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe VIII, LLC.

       Admission No. 5. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe VIII, LLC.

       Admission No. 6. 8650 Frisco, LLC received money from Los Cucos Mexican
Cafe IV, LLC.

      Admission No. 7. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe IV, LLC as a loan.

      Admission No. 8. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VI, LLC as an investment.

      Admission No. 9. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe IV, LLC.

       Admission No. 10. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe IV, LLC.

      Admission No. 11. 8650 Frisco, LLC received money from Manuel Cabrera.

      Admission No. 12. 8650 Frisco, LLC intended to treat the money it received
from Manuel Cabrera as a loan.

       Admission No. 13. Admit that 8650 Frisco, LLC intended to treat the money it
received from Manuel Cabrera as an investment.

      Admission No. 14. 8650 Frisco, LLC intended to repay the money it received
from Manuel Cabrera.

                                            7

Exhibit L                                                                  App. 32
       Admission No. 15. 8650 Frisco, LLC did not intend to repay the money it
received from Manuel Cabrera.

      Admission No. 16. 8650 Frisco, LLC received money from Sergio Cabrera.

      Admission No. 17. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as a loan.

      Admission No. 18. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as an investment.

      Admission No. 19. 8650 Frisco, LLC intended to repay the money it received
from Sergio Cabrera.

       Admission No. 20. 8650 Frisco, LLC did not intend to repay the money it
received from Sergio Cabrera.

      Admission No. 21. 8650 Frisco, LLC received equipment from Los Cucos
Mexican Cafe IV, LLC.

       Admission No. 22. 8650 Frisco, LLC received furniture from Los Cucos Mexican
Cafe IV, LLC.

      Admission No. 23. 8650 Frisco, LLC is currently using equipment it received
from Los Cucos Mexican Cafe IV, LLC.

      Admission No. 24. 8650 Frisco, LLC is currently using furniture it received from
Los Cucos Mexican Cafe IV, LLC.

      Admission No. 25. 8650 Frisco, LLC is currently using equipment paid for by
from Los Cucos Mexican Cafe IV, LLC.

      Admission No. 26. 8650 Frisco, LLC is currently using furniture paid for by Los
Cucos Mexican Cafe IV, LLC.

      Admission No. 27. 8650 Frisco, LLC did not pay Los Cucos Mexican Cafe IV,
LLC for any equipment or furniture.

      Admission No. 28. Los Cucos Mexican Cafe IV, LLC did not gift furniture to
8650 Frisco, LLC.



                                             8

Exhibit L                                                                    App. 33
      Admission No. 29. Los Cucos Mexican Cafe VIII, LLC did not gift money to
8650 Frisco, LLC.

       Admission No. 30. Admit that Manuel Cabrera did not gift money to 8650
Frisco, LLC.

      Admission No. 31. Sergio Cabrera did not gift money to 8650 Frisco, LLC.

      Admission No. 32. 8650 Frisco, LLC is currently operating at a net profit.

      Admission No. 33. 8650 Frisco, LLC is currently operating at a new loss.

       Admission No. 34. 8650 Frisco, LLC is currently using the name Estilo Goucho
Brazilian Steakhouse.

       Admission No. 35. 8650 Frisco, LLC is has been using the name Estilo Goucho
Brazilian Steakhouse since February, 2013.

      Admission No. 36. 8650 Frisco, LLC has assigned, in writing, its rights to the
mark Estilo Gaucho Bazilian Steakhouse to Bahtche, LLC.

      Admission No. 37. 8650 Frisco, LLC has not assigned, in writing, its rights to the
mark Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.

      Admission No. 38. 8650 Frisco, LLC has received compensation from Bahtche,
LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.

      Admission No. 39. 8650 Frisco, LLC has not received compensation from
Bahtche, LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.

       Admission No. 40. Estilo Gaucho Brazilian Steakhouse is a trade name of 8650
Frisco, LLC.

      Admission No. 41. 8650 Frisco, LLC does business as Estilo Gaucho Brazilian
Steakhouse.




                                              9

Exhibit L                                                                     App. 34
                                Requests for Production
       Request No. 1. Produce all documents and records provided to or received from
8650 Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA,
Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650
Frisco, LLC.

       Request No. 2. Produce all documents and records in the possession of 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.

       Request No. 3. Produce all financial records of 8650 Frisco, LLC.

       Request No. 4. Produce all accounting records of 8650 Frisco, LLC.

       Request No. 5. Produce all bank statements of 8650 Frisco, LLC.

       Request No. 6. Produce all point of sale data and reports related to 8650 Frisco,
LLC.

       Request No. 7. Produce all tax records (including all 1099 forms, W-2 forms, and
K-1 forms) related to 8650 Frisco, LLC.

       Request No. 8. Produce all communications and correspondence with 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.

       Request No. 9. Produce all payroll records for 8650 Frisco, LLC.

      Request No. 10. Produce all records of money received from any Plaintiff in this
lawsuit.

        Request No. 11. Produce all records of money paid or distributed to any Plaintiff
in this lawsuit.

       Request No. 12. Produce all correspondence and communications with each
Plaintiff in this lawsuit.

      Request No. 13. Produce all agreements, including all drafts of agreements,
between the Parties, which relate in any way to 8650 Frisco, LLC.



                                              10

Exhibit L                                                                      App. 35
      Request No. 14. Produce all leases and related documents (e.g., guarantees),
which relate to the premises currently occupied by 8650 Frisco, LLC.

       Request No. 15. Produce all records of financial transactions between 8650
Frisco, LLC and Claudio Nunes.

       Request No. 16. Produce all records of financial transactions between 8650
Frisco, LLC and David Jeiel Rodrigues.

      Request No. 17. Produce all corporate records of 8650 Frisco, LLC.

      Request No. 18. Produce quarterly and annual profit and loss statements for
8650 Frisco, LLC from its creation through the present (update quarterly through trial).

       Request No. 19. Produce quarterly and annual balance sheet statements for 8650
Frisco, LLC from its creation through the present (update quarterly through trial).

       Request No. 20. Produce all communications and correspondence related to any
of the Plaintiffs in this lawsuit.

       Request No. 21. Produce all records of cash receipts and cash deposits for 8650
Frisco, LLC.

       Request No. 22. Produce all records, including invoices, for all equipment and
furniture purchased for use by 8650 Frisco, LLC.

       Request No. 23. Produce all documents which reflect or relate to the application
to the United States Patent and Trademark office for the mark Estilo GAucho Brazilian
Steakhouse.

     Request No. 24. Produce the assignment of ownership rights for the mark Estilo
Gaucho Brazilian Steakhouse to Bahtche, LLC.

       Request No. 25. Produce documents reflecting the exchange of compensation by
and between 8650 Frisco, LLC and Bahtche, LLC, related to the mark Estilo Gaucho
Brazilian Steakhouse.




                                              11

Exhibit L                                                                     App. 36
                           FIRST SET OF INTERROGATORIES

      Interrogatory No. 1. Identify and explain in detail the terms upon which Los
Cucos Mexican Cafe VIII, LLC provided money to 8650 Frisco, LLC.

      Interrogatory No. 2. If you contend that the money provided to 8650 Frisco, LLC
by Los Cucos Mexican Cafe VIII, LLC was a loan, describe in detail the basis of that
contention and terms of the loan.

       Interrogatory No. 3. If you contend that they money provided to 8650 Frisco,
LLC by Los Cucos Mexican Cafe VIII, LLC was an investment, describe in detail the
basis of that contention and terms of the investment.

       Interrogatory No. 4. Identify and describe in detail the equipment and
furnishings provided to 8650 Frisco, LLC by Los Cucos Mexican Cafe, IV.

       Interrogatory No. 5. If you contend that the parties had an agreement as to 8650
Frisco, LLC’s use of the equipment and furniture provided to 8650 Frisco, LLC by Los
Cucos Mexican Cafe, IV, identify and describe in detail the basis of that contention and
terms of the agreement.

      Interrogatory No. 6. Identify and describe in detail the source, date of purchase,
and cost of all equipment and furnishings used at 8650 Frisco, LLC.

       Interrogatory No. 7. Detail the circumstances and terms under which the mark
Estilo Gaucho Brazilian Steakhouse was transferred to Bahtche, LLC.




                                              12

Exhibit L                                                                     App. 37
                                                                                 4/14/2014 9:29:21 AM
                                                            Chris Daniel - District Clerk Harris County
                                                                                  Envelope No. 980547
                                                                                  By: EVELYN PALMER


                      CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFÉ         § IN THE DISTRICT COURT OF
VIII, INC., LOS CUCOS MEXICAN §
CAFÉ IV, INC., MANUEL          §
CABRERA, and SERGIO            §
CABRERA                        §
PLAINTIFFS,                    §
                               §
V.                             § HARRIS COUNTY, TEXAS
                               §
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN               §
STEAKHOUSE, MANDONA,           §
LLC, GALOVELHO, LLC,           §
BAHTCHE, LLC, CLAUDIO          §
NUNES and DAVID JEIEL          §
RODRIGUES                      §
DEFENDANTS.                    § 133rd JUDICIAL DISTRICT
                  DEFENDANTS’ ORIGINAL ANSWER

Subject to Defendants’ Motion to transfer Venue and without waiving

same, Pursuant to Rules 84 and 86:

NOW COMES 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse,

Mandona, LLC, Galovelho, LLC, Bahtche, LLC, Claudio Nunes and David

Jeiel Rodrigues (“Defendants”) and file this original answer to the original

petition filed by Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café

IV, Inc., Manuel Cabrera, and Sergio Cabrera (“Plaintiffs”) and shows the

Court:
                            GENERAL DENIAL


Defendants Original Answer Subject to
Motion to Transfer Venue                                                     1 of 4


Exhibit M                                                                App. 38
In accordance with Rule 92 of the Texas Rules of Civil Procedure, Defendants

exercise their legal right to require Plaintiffs to prove their allegations

contained in their pleadings. Accordingly, Defendants generally deny the

allegations of Plaintiffs’ pleading and demand strict proof of the allegations by

a preponderance of evidence.

                         AFFIRMATIVE DEFENSES

1.    Defendants are not liable to Plaintiffs because of Plaintiffs Fraud.

2.    Defendants are not liable to Plaintiffs because of the Statute of Frauds.

3.    Defendants are not liable to Plaintiffs because there is no written

      agreement as recited by Plaintiffs.

4.    Defendants are not liable to Plaintiffs because there is no oral

      agreements as recited by Plaintiffs.

                              VERIFIED PLEAS

5.    Defendants deny that there is any partnership as pleaded by Plaintiffs.

             COUNTER CLAIM: DECLARATORY JUDGMENT

6.    Defendants request a declaratory judgment that there was never an

      agreement between any of the Defendants and any of the Plaintiffs as

      alleged by Plaintiffs. Defendants request the court to determine the

      rights of Defendants in relation to the Plaintiffs.

Defendants Original Answer Subject to
Motion to Transfer Venue                                                  2 of 4


Exhibit M                                                               App. 39
7.    Defendants request the court to award attorney’s fees pursuant to Tex.

      Civ. Prac. & Rem. Code §37.009.

                               DISCLOSURES

Defendants request that Plaintiffs make disclosure as required under Texas

Rules of Civil Procedure 194.

                                   PRAYER

Defendants request that all relief sought by Plaintiffs be denied, that Plaintiffs

take nothing by this suit, and that Defendants recover all costs and attorney’s

fees, together with such other and further relief to which it may be justly

entitled.

Respectfully submitted, MOSSER LAW PLLC,

/s/ James. C. Mosser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
Benjamin Casey
Texas Bar No. 24087267
17110 Dallas Parkway Suite 290
Dallas, TX 75248
Tel. (972) 733-3223
Fax. (972) 267-5072
courtdocuments@mosserlaw.com
Lawyers for Defendants.



Defendants Original Answer Subject to
Motion to Transfer Venue                                                   3 of 4


Exhibit M                                                                App. 40
                         CERTIFICATE OF SERVICE

I certify that on April 14, 2014, a true and correct copy of this document was
served to the following pursuant to Texas Rules of Civil Procedure 21 & 21(a)
on the following:

Kelly Stephens
P.O. Box 79734
Houston, Texas 77279-9734
832-476-5460 (Facsimile)

/s/ Nicholas D. Mosser
Nicholas D. Mosser




Defendants Original Answer Subject to
Motion to Transfer Venue                                                4 of 4


Exhibit M                                                            App. 41
                                                                1

 1                REPORTER'S RECORD

 2               VOLUME 1    OF   1   VOLUME

 3               CAUSE NO.    2014-10896

 4
      LOS CUCOS MEXICAN CAFE VIII § IN THE DISTRICT COURT OF
 5                                §
      VS.                         § HARRIS COUNTY, T E X A S
 6                                §
      8650 FRISCO, LLC            § 133RD JUDICIAL DISTRICT
 7

 8

 9    ******************************************************

10                     MOTIONS

11    ******************************************************

12

13                     On the 28th day of July, 2014, the

14    following proceedings came on to be heard in the

15    above- entitled and numbered cause before the

16    HONORABLE JACLANEL McFARLAND, Judge Presiding of the

17    133rd District Court of Houston, Harris County, Texas.

18                    Proceedings reported by stenographic

19    method.

20

21

22                           LaVEARN IVEY

23                    DEPUTY COURT REPORTER

24                      133rd DISTRICT COURT

25                      HARRIS COUNTY, TEXAS




Exhibit N                                             App. 42
                                                               2

 1               A P P E A R A N C E S:

 2
      FOR THE PLAINTIFFS:
 3                MR. KELLY D. STEPHENS
                  State Bar No. 19158300
 4                Stephens & Dominitz PLCC
                  P. O. Box 79734
 5                Houston, Texas 77297-9734
                  281.394.3287
 6
                  MR. ANDREW K. MEADE
 7                State Bar No. 24032854
                  MR. SAMUEL D. HAREN
 8                State Bar No. 24059899
                  Hawash Meade Gaston Neese & Cicack LLP
 9                2118 Smith Street
                  Houston, Texas 77002
10                713.658.9006

11

12

13    FOR THE DEFENDANTS:
                  MR. NICHOLAS D. MOSSER
14                State Bar No. 24075405
                  Mosser Law PLLC
15                17110 Dallas Parkway
                  Suite 290
16                Dallas, Texas 75248
                  972.733.3223
17

18

19

20

21

22

23

24

25




Exhibit N                                            App. 43
                                                                          3

 1                                  July 28, 2014

 2

 3                     THE COURT:     If all the attorneys would

 4    announce themselves and who they represent.

 5                     MR. MEADE: For the plaintiffs, Andrew

 6    Meade, Sam Haren and Kelly Stephens.

 7                     MR. MOSSER:     Nicholas Mosser for 8650 and

 8    the remainder of the defendants.

 9                     THE COURT:     Very well.     Now I don't know

10    what order you want to take them in.         The first one I

11    happen to have on the docket is the motion to transfer.

12    Want to do that one first, want to do another one first,

13    do you --

14                     MR. MOSSER:     Sorry to interrupt, Your

15    Honor.   I prefer to do that one first because I believe

16    the remainder will become moot after that point.

17                     THE COURT:     Okay.   Go ahead.

18                     MR. MEADE:     On the motion to transfer,

19    Your Honor, you had mentioned that you were pushing that

20    off until after we got our depositions.

21                     THE COURT:     That's right because there

22    were all those motions to quash.

23                     MR. MEADE:     They are next week. The

24    depositions are scheduled for next week.

25                     THE COURT:     That's right.     I did say that.




Exhibit N                                                   App. 44
                                                                      4

 1    Were these not the ones that there was motions to quash?

 2    Have y'all worked some of those out?

 3                     MR. MEADE:    We have depositions set for

 4    Monday and Tuesday of next week, Your Honor.

 5                     THE COURT:    Well, let's --

 6                     MR. MEADE:    On the motion to quash.

 7                     THE COURT:    I just assumed you had some.

 8                     MR. MOSSER:    Your Honor, I called and

 9    confirmed that this hearing on motion to transfer venue

10    was scheduled for today.

11                     THE COURT: Okay, that's fine.

12                     MR. MOSSER:    Your Honor, we specifically

13    deny the venue facts pleaded by plaintiffs.      They have

14    filed no response to any of our specific denials.        They

15    have produced no prima facie evidence of any of their

16    venue facts.   We allege that venue is mandatory and

17    permissive in Collin County and we have not had any

18    response to our supplemental motion.      Their timeframe to

19    respond or amend the pleading is over.      And the facts are

20    properly pleaded and alleged.     Any facts that are not

21    controverted by opposing counsel are deemed accepted as

22    true.   And I believe this court has no other choice but to

23    transfer this case into Collin County.

24                     THE COURT:    Counsel.

25                     MR. MEADE:    Your Honor, I actually -- I




Exhibit N                                                App. 45
                                                                       5

 1    don't have a copy of the motion.     I didn't know that it

 2    was set for today because my understanding from our last

 3    hearing was that it was going to be continued and put off

 4    until after we were able to get the depositions so as not

 5    to allow counsel to basically -- trying to figure out the

 6    right way to put it nicely.     To play discovery games and

 7    continually push off the depositions until after they can

 8    get their motion to transfer venue set.

 9                I think we have pled sufficient venue facts.

10    I looked at this issue last -- a month and a half ago so I

11    don't remember what the exact facts are but they included,

12    for example, that my clients were contacted by the

13    defendants regarding this investment by the defendants

14    reaching out to the clients in Harris County.     And that my

15    clients paid from Harris County $948 thousand and change

16    and that the place for repayment was Harris County.       That

17    the reaching out to induce the investment and the location

18    for place of payment alone are sufficient to establish

19    venue here and are dispositive of the issue.

20                If Your Honor is inclined to need more venue

21    facts or more briefing on that issue I would be happy to

22    give it to you.    But I think those facts that we have

23    already pled and established are sufficient in and of

24    itself.

25                      THE COURT:   Counsel, when you got your




Exhibit N                                               App. 46
                                                                            6

 1    notice to him --

 2                       MR. MOSSER:    It's been e-filed, Your

 3    Honor.

 4                       THE COURT:    Well, have you got it?

 5                       MR. MOSSER:    Yes, Your Honor.

 6                       THE COURT:    Did you conference with him

 7    before you reset it and gave him notice that it was set?

 8                       MR. MOSSER:    We only reset it based on the

 9    court's request, we reset it from August 4th to July 28th.

10                       THE COURT:    That's because y'all were

11    supposed to have already done depositions, right?

12                       MR. MEADE:    Your Honor, this setting of

13    July 28th was set prior to the last hearing that we had

14    and, Your Honor, at that last hearing because we couldn't

15    -- I was going to take a vacation -- our last hearing I

16    think was June 23rd.     I was going to be on vacation and we

17    couldn't get deposition dates set to occur due to Mr.

18    Mosser's father not being able to come to Houston for the

19    depositions until after the date that they had set for

20    their motion to transfer venue.       I said -- I requested

21    from the court that we put off the hearing on their motion

22    to transfer venue until after I was able to get the

23    depositions and Your Honor indicated that you would.           They

24    never reset their motion but Your Honor passed the hearing

25    orally.




Exhibit N                                                  App. 47
                                                                          7

 1                    THE COURT:    I remember.

 2                    MR. MOSSER:    Your Honor, there was no

 3    notice of any of that other than the hearing.      If that

 4    actually took place in the hearing then I believe that

 5    should have been on the docket and addressed on the docket

 6    and it should have been reset there.    We have no order on

 7    any of this, I have no transcript on any of this --

 8                    THE COURT:    I think your dad was on the

 9    phone.

10                    MR. MOSSER:    I believe he was.    But I

11    believe this is still properly set.    There is no verified

12    motion for continuance.

13                    THE COURT:    Have you got a certificate of

14    conference where you conferenced with him about this

15    motion?

16                    MR. MOSSER:    We attempted numerous times

17    to illustrate to each one of these issues.

18                    THE COURT:    Counsel, I asked you a

19    specific question.   You got a certificate of conference on

20    this motion?

21                    MR. MOSSER:    Yes, Your Honor, I do.       As of

22    March 14th we have been trying to transfer this.

23                    THE COURT:    No, on this one that was set

24    for today.

25                    MR. MOSSER:    On this one that's set for




Exhibit N                                                App. 48
                                                                      8

 1    today.

 2                     THE COURT:    And you conferenced about it

 3    being set for today?      Because isn't this -- is this the

 4    original one?

 5                     MR. MOSSER:    Yes, Your Honor.

 6                     THE COURT:    Well, but we have had a lot of

 7    stuff since then.

 8                     MR. MOSSER:    I supplemented it based on

 9    the second amended petition and that's the venue facts we

10    specifically deny.     And there has been no response on it.

11                     THE COURT:    Okay.     Well, I am going to

12    continue it until after the depositions just like I told

13    your dad.   So let's move to the next one.

14                 Okay.   To be continued on the court's own

15    motion.

16                     MR. MOSSER:    Your Honor, we request that

17    the remainder of these motions also be continued until

18    after the motion to transfer venue.

19                     THE COURT:    Denied.

20                 Okay.   The next thing I have got is -- because

21    you filed something on July first on your motion to

22    transfer.   Did you send that to him?

23                     MR. MOSSER:    Yes, Your Honor.

24                     THE COURT:    And you said it was set for

25    hearing today?




Exhibit N                                                  App. 49
                                                                          9

 1                       MR. MOSSER:    I filed all the notices of

 2    hearing and I filed supplements.

 3                       THE COURT:    And you conferenced with him

 4    that it was set for today?

 5                       MR. MOSSER:    I filed the notice of

 6    hearing, Your Honor.

 7                       THE COURT:    Yeah.    I see a notice of

 8    conference on here.

 9                Okay.     So going to the next motion that's set,

10    I think was on the subpoena issue, right?

11                       MR. MEADE:    The Mike Verucchi subpoena

12    issue.

13                       THE COURT:    Right.

14                       MR. MEADE:    And Your Honor, we have as you

15    know, we have been attempting to perform written and oral

16    discovery in this case for five months now.         And one of

17    the issues was subpoenaing the initial accountant which

18    was Hal Holtman.     The defendants sent a letter to Hal

19    Holtman instructing him not to comply with that subpoena.

20                       THE COURT:    Oh, I remember.

21                       MR. MEADE:    And telling him to destroy the

22    documents and we had moved to compel and protection on

23    that. And we got those documents compelled.         And the

24    defendants have identified in response to request for

25    disclosure their new accountant as Mr. Verucchi.          We have




Exhibit N                                                   App. 50
                                                                        10

 1    sent a subpoena to Mr. Verucchi and the defendants filed a

 2    motion to quash.     The exclusive basis of the motion to

 3    quash is that it calls for production, our subpoena calls

 4    for production outside of 150 miles and thus is outside

 5    the subpoena range.     The location for production pursuant

 6    to subpoena is Mr. Verucchi's offices, not Harris County.

 7    And therefore it doesn't violate the 150 mile limitation.

 8                The defendants have also represented in a

 9    letter that they have provided us with all of Mr.

10    Verucchi's documents.     But the only documents that we have

11    been provided with in response to discovery, and this goes

12    to the next motion, too, but I am going to hold off on

13    that for a minute.     But it's an important note to

14    remember.

15                The only documents they have provided us in

16    June in response to the court's order on our motion to

17    compel in the Verucchi subpoena is to produce to us -- at

18    the last hearing the court, Mr. Mosser asked that we give

19    the Holtman documents, we had received them, give him a

20    copy and we produced them, we Bates labeled and produced

21    them to him -- we didn't Holtman Bates labeled?

22                       MR. HAREN:   No --

23                       MR. MEADE:   So we produced the Holtman

24    documents to Mr. Mosser's firm.         Mr. Mosser produced the

25    Holtman backed -- documents back to us with only one page




Exhibit N                                                   App. 51
                                                                       11

 1    addition and that was the cover letter.     And that's the

 2    only thing we have been given.     He says I have given you

 3    all -- now given you all of Mr. Verucchi's documents and

 4    all the financial documents we have in our possession.

 5                With all due respect, even if I believe that

 6    to be true I'm entitled to production from Mr. Verucchi,

 7    and the exclusive basis for the motion to quash being 150

 8    mile limitation, it's not valid.     Like I said we called

 9    for production at Mr. Verucchi's office.

10                    MR. MOSSER:     Your Honor, I have attempted

11    to resolve this without having a motion to compel.       I

12    didn't think it was necessary.     I didn't think once we

13    produced the documents and they are basically the same

14    documents. I mean the transfer of accountants in this case

15    was Mr. Holtman was the accountant for 8650.       He produced

16    all these documents.     After we received them.    Those are

17    all the documents that we had in our possession that were

18    responsive to Verucchi's subpoena.     Verucchi does not

19    believe -- I have talked to him, he does not have any more

20    documents other than those documents he received directly

21    from Mr. Holtman. Those are the financial records that he

22    has in his possession.

23                    THE COURT:     But he needs to say it under

24    oath.

25                    MR. MOSSER:     I believe that without the




Exhibit N                                                 App. 52
                                                                     12

 1    need of doing the motion to compel, without the need of a

 2    subpoena our production of those same documents are

 3    sufficient.   Otherwise motion to compel, it's just not

 4    necessary based on the fact we have produced all

 5    responsive documents.   I don't think he needs to say it

 6    under oath.   We produced them and represent that those are

 7    the documents that we have, and of course we are under the

 8    obligation to supplement, but those are the documents he

 9    received from Mr. Holtman and that's all he's got.

10                     THE COURT:    So why don't you want him to

11    say that and swear to it?

12                     MR. MOSSER:    Because I believe that they

13    are required to go through us on proper discovery and not

14    go through and try to circumvent the discovery process by

15    using a subpoena.

16                     THE COURT:    Well, they are asking a third

17    party, they subpoenaed a third party on a deposition on

18    written questions.

19                     MR. MOSSER:    In specific attempt to

20    circumvent requesting the documents from us and allowing

21    us to control the process and the information released.        I

22    believe it's our right to object and make the call for

23    privileges and specifically they are asking for every

24    social security number of every employee of 8650 and every

25    other entity involved in this.     We have made that




Exhibit N                                               App. 53
                                                                        13

 1    objection and the objection has not been put before this

 2    court and I do not believe it's proper to produce that

 3    volume of personal information without redacting it.        And

 4    that's what we did when we took that information, we

 5    redacted that information and produced it back.

 6                      THE COURT:   Well, it looks like to me they

 7    would prove these up under business records with this

 8    subpoena.

 9                      MR. MEADE:   One of the issues that we are

10    trying to do, Your Honor, is to prove up the business

11    records through the subpoena, of course.     But No. 2, what

12    I just heard again blows my mind and that is that counsel

13    says no, you can't go request documents directly from a

14    third party.    We get to control the information that you

15    are allowed to get.     And we are going to take the

16    documents from a third party.     And the only objection they

17    raised in response to Mr. Verucchi, again the subpoena,

18    was 150 mile range.     No privilege issue on this one like

19    Holtman, anything like that.     And now what they are saying

20    is we are going to take the documents from him.        We are

21    going to just represent to you in a letter that this is

22    all he has, trust us on it, and we are going to go through

23    and redact some information and control the flow of the

24    information back to you.

25                   They haven't disclosed anybody else who is an




Exhibit N                                               App. 54
                                                                     14

 1    accountant for the enterprise.     They have not, and I find

 2    this very interesting, supplemented their discovery

 3    because we are going to get to that next as they can

 4    concede they have the obligation to do.

 5                 No, they don't get -- one of the reasons you

 6    go to third parties to get things is so that the other

 7    side doesn't -- if for example you don't 100 percent trust

 8    them to disclose documents, and I don't, you don't have to

 9    go directly to that party.     You can go to third parties in

10    possession of the documents.

11                 And with Mr. Verucchi in particular, at the

12    last hearing the reason they were saying they didn't have

13    to produce these records was Mr. Verucchi had them and he

14    was not within their possession -- it was not in his

15    possession, custody and control. That's the only

16    objection.   Our own accountant.

17                 Now they are saying, no, we get to go to that

18    accountant, get the documents, redact them, choose which

19    documents to give you.

20                 I mean, we're entitled to go to the third

21    party.   They raise one objection, it's invalid, and so the

22    motion to quash should just be overruled.

23                     THE COURT:    Do you want to say anything

24    else, counsel?

25                     MR. MOSSER:    Your Honor, I don't believe




Exhibit N                                               App. 55
                                                                    15

 1    the motion to quash was invalid, however I withdrew it on

 2    the representation that I produced those documents that

 3    are responsive to his subpoena request.     I don't believe

 4    just like I can't --

 5                    THE COURT:     So did you set up another date

 6    where they could go do it?

 7                    MR. MOSSER:     No, Your Honor, I don't

 8    believe it was necessary.     I believe that the only thing

 9    that they wanted out of this was documents, documents that

10    Mr. Holtman came and produced to them months before we

11    ever got copies of those documents and those documents are

12    all they seem to care about.

13                The only other thing, the only other reason

14    that Mr. Verucchi has complained about is the volume of

15    papers that opposing counsel is delivering on him and

16    interfering with the operation of his business. And this

17    is the reason we believe they are subpoenaing Mr.

18    Verucchi.

19                If they really truly wanted these documents

20    from us then they would have made the request, they would

21    have objected to or they would have put a motion to compel

22    on the remainder of our objections out there and compelled

23    us to produce those documents.

24                I produced them both in response to his

25    subpoena and in response to the discovery requests that




Exhibit N                                               App. 56
                                                                    16

 1    they made and I don't believe either of these motions to

 2    compel are proper today because we have done everything

 3    that they are seeking to accomplish.

 4                    THE COURT:    You are going to stipulate

 5    that they are the business records, and not ---

 6                    MR. MOSSER:    As far as Mr. Holtman has

 7    prepared the business records and they are accurate based

 8    on Mr. Holtman, I think -- 7,000 pages of documents, Your

 9    Honor, I have not had an opportunity to go and verify that

10    they are accurate and correct, and Mr. Holtman has done

11    his job correctly.

12                    THE COURT:    So you don't know.

13                    MR. MOSSER:    I don't know yet.      7,000

14    pages, Your Honor.

15                    THE COURT:    So these are the same

16    documents that the CPA in New Braunfels --

17                    MR. MEADE:    Hal Holtman.

18                    THE COURT:    That you told them to destroy?

19                    MR. MOSSER:    I told him to deliver copies

20    to my office and destroy his copies.     I did not tell him

21    to destroy the documents, Your Honor.

22                    THE COURT:    Your motion is granted other

23    than I did strike out the sanction.     Okay. Next.

24                    MR. MEADE:    Next is our motion to compel

25    the discovery that Mr. Mosser said we should have prepared




Exhibit N                                                App. 57
                                                                     17

 1    and served on them and should have been compelled.      And

 2    actually this isn't a motion to compel, this is a motion

 3    to enforce the court's order on our prior motion to

 4    compel.

 5                  We have served the defendants with request for

 6    production for all of their financial records.     And, Your

 7    Honor, they refused to produce them under a myriad of

 8    objections.   We filed a motion to compel.   That motion to

 9    compel was heard on June 23rd.    Your Honor overruled the

10    objections and ordered the production of the documents.

11                  Since that time, we wrote a letter to

12    defendants asking them to produce the documents.      They

13    didn't.   We wrote them another letter asking them to

14    produce the documents and they responded saying we didn't

15    get your first letter, not agreeing to produce anything.

16                  Subsequently in the lead-up to today's hearing

17    they produced the Verucchi Holtman documents with cover

18    letter reproducing back to us the documents we have

19    already produced to them in the case and informing us that

20    they are standing on the objections that they

21    previously -- that the court previously overruled other

22    than the objection as to privilege because in their view

23    the only objection before the court although we asked the

24    court to overrule and the court did all of their

25    objections to the request for production.    They are taking




Exhibit N                                              App. 58
                                                                     18

 1    the position that the only objection that was overruled

 2    was the objection as to the accountant privilege.

 3                   And again we are asking for a lot of financial

 4    information.     We have already talked about why we need the

 5    financial information in the prior hearing.     The court's

 6    already compelled the production of it.     And the

 7    defendants have just refused.

 8                   I am now taking their depositions next Monday

 9    and Tuesday, so it's a little bit urgent that we get these

10    documents.

11                   And in response to Mr. Mosser's previous point

12    about the on-going duty to supplement, that's one of the

13    primary issues here.     Because they have taken -- the

14    defendants have taken the position that, look, you got the

15    snapshot of the way that the financial picture of this

16    enterprise existed at the time that Mr. Holtman produced

17    documents in April.     And therefore you have all the

18    records.     But this is an operating business enterprise

19    that has daily -- it's a restaurant.     It has daily

20    financial records.

21                   We also don't have any of the tax returns, of

22    course, as the court's already -- so the issue is that we

23    need everything that the defendants have, every financial

24    document that they have.     And yes, they do have a duty to

25    supplement and we are going to be encouraging them through




Exhibit N                                               App. 59
                                                                        19

 1    this process to continue to supplement the records.

 2                But they need to give us everything they have

 3    up until today's date and they need to do it like

 4    yesterday so that I can get ready for the depositions on

 5    Monday and Tuesday.

 6                The court has already ordered this.           So we are

 7    not here on a motion to compel but a motion to enforce.

 8    This is why we have asked for a penalty to be imposed of a

 9    thousand dollars a day until the Court's prior order is

10    compiled with.

11                       MR. MOSSER:     Your Honor, only three

12    objections were placed before the court during the last

13    motion to compel.     The only three objections -- opposing

14    counsel misstates most of the correspondence between us.

15    The only three objections that were at point at the last

16    motion to compel and they are even subsections of his

17    motion are there is no accountant-client privilege in

18    Texas which is incorrect.        There is no tax return

19    privilege which is incorrect and not entirely what I said

20    I don't believe.     I believe that their confidential and

21    privileged information and private information and the

22    bank records are discoverable.

23                We didn't object that the bank records are

24    discoverable.    We objected that the way they produced them

25    are not the proper method of production.        There is cases




Exhibit N                                                  App. 60
                                                                     20

 1    that we cited in our response to the motion to compel

 2    that, A, bank records are the bank's records, not the

 3    client's records.

 4                 Those are the only three objections placed

 5    before the court.   We have received no signed order and no

 6    order indicating from the court oral or otherwise

 7    indicating that all of the objections either before or not

 8    before the court were overruled.     So our remaining

 9    objections were still in place.

10                 Now despite that, I have produced the

11    documents that are responsive to their specific requests.

12    If they don't have the tax returns that will fall to Mr.

13    Holtman and he should be here explaining why he didn't

14    produce the tax records.     We have produced everything we

15    received from Mr. Holtman.     He was in possession of those

16    documents and we have done everything possible we should

17    do.

18                 I sent letters to opposing counsel saying I

19    don't see the need for this hearing given that I have

20    produced as much information as I have responsive to your

21    request.   Now I have redacted some.    I redacted

22    information dealing with other employees' social security

23    numbers.   I don't believe that's proper to produce any

24    documents with other people's social security numbers on

25    it.   It's an invasion of their privacy and as we have seen




Exhibit N                                                  App. 61
                                                                      21

 1    with the subpoenas to third parties, all they intend to do

 2    is harass the remaining employees.      They are seeking out

 3    documents rather than going through the normal discovery

 4    process by subpoenaing or using back channels in order to

 5    get documents from Mr. Holtman and subpoenaing Mr.

 6    Verucchi and including him on things that should go

 7    through us.

 8                   I believe it's my responsibility to object and

 9    help try to control the flow of documents that are not

10    permissible.     That way I don't waive my objections.

11                       THE COURT:   Did you give me an order to

12    sign on this?

13                       MR. MEADE:   We did give Your Honor an

14    order to sign on the prior motion to compel.      I don't

15    believe that Your Honor did ever sign the order.      But you

16    did -- and one of the issues was you did order the

17    production and overruled all of their objections on the

18    record.

19                   Your Honor did not give them a deadline.

20    Which is why we wrote them afterwards saying please do it

21    within 10 days.     And when they didn't do it within 10 days

22    we said, you know, please -- previously, you know, do it

23    within 10 days, again giving them 20 days.

24                   But the point is we still don't have the

25    production.     All I am hearing from the other side is, hey,




Exhibit N                                                App. 62
                                                                   22

 1    we gave you the Holtman documents, I mean we have given

 2    you -- whatever you can discover, this is why you go to

 3    third parties because the only thing that they are willing

 4    to give us is what we have already discovered from third

 5    parties.

 6                  And they are not going to stand here I

 7    believe -- nobody is going to stand here and take the

 8    position there is not a single financial record in this

 9    case after April of 2014.    Nor a single financial record

10    that wasn't in the possession, custody and control of Mr.

11    Holtman.   They have certainly not certifying that that's

12    true.   And if they are going to take the position that the

13    universe of documents in this case is going to be the

14    Holtman production and that they are never going to show

15    up with another one at another hearing or trial or

16    deposition, I mean that would be an interesting position

17    for him to take. And we can try the case on the Holtman

18    documents but they are not -- they are certainly not the

19    world of responsive documents.

20                  This is an on-going like I said business

21    enterprise.   A restaurant that's open six or seven days a

22    week that has cash registers, bank accounts and generates

23    financial documents.

24                  On the tax return issue, no, we didn't get tax

25    returns from Mr. Holtman.    If the defendants do not have a




Exhibit N                                              App. 63
                                                                     23

 1    tax return despite being an operating business enterprise

 2    since 2012 then they are certify in a response there are

 3    no responsive documents in the proper place, in response

 4    to the request for production.     Then we will know there

 5    are no tax return documents.     Not just simply saying look

 6    at the Holtman documents.     And avoiding addressing the

 7    Court's prior ruling.

 8                    THE COURT:     Well, I have one concern with

 9    it, and that is your motion is to enforce the court's

10    order and if I didn't sign an order, then I have got a

11    problem with that.   Where is the order?

12                    MR. MEADE:     And the thing is, Your Honor,

13    you certainly ordered it orally but you didn't put it in

14    writing.

15                    THE COURT:     I know I ordered an orally but

16    I need to sign an order if I did not.

17                There is not one in the --

18                    MR. MEADE:     I'm sorry, Your Honor, I

19    didn't mean to cut you off.

20                    THE COURT:     Well, let me just see if we

21    can -- did you file it electronically, or what did you do?

22                    MR. MEADE:     Well, I think we are required

23    and did file it electronically.     I think we had to do

24    everything electronically.

25                    THE COURT:     Well, I am going to pull it up




Exhibit N                                               App. 64
                                                                        24

 1    and then I don't have to sign yours that's been marked on.

 2                       MR. MEADE:    The one issue I want to

 3    mention here, Your Honor, we that did withdraw at the last

 4    hearing our request for the court to assess attorneys fees

 5    against the defendants and their counsel.        That order

 6    includes that request and we did withdraw that request.

 7                       THE COURT:    All right.   So let's see what

 8    we have got electronically filed.       So you think you filed

 9    it when you were here June 23rd.

10                       MR. MEADE:    Should have been filed in

11    advance of that.

12                       MR. HAREN:    It would be the proposed order

13    on response to the motion to stay all matters and our

14    third motion to compel.

15                       MR. MOSSER:    Your Honor, I have a clean

16    copy with some hole punches in it if you would like to see

17    that.   I have a proposed order.      My objection is that only

18    three issues were brought up in the motion to compel, not

19    all of our objections.

20                       THE COURT:    Well, you ordered a

21    transcript, right?

22                       MR. MOSSER:    Yes, Your Honor.

23                       THE COURT:    Have you got it with you?

24                       MR. MOSSER:    No, we have not received the

25    transcript.




Exhibit N                                                    App. 65
                                                                     25

 1                    THE COURT:     I thought you said in there

 2    that you did have the transcript.

 3                    MR. MOSSER:     I have a transcript from the

 4    temporary injunction hearing.     That's the only transcript

 5    we have managed to get yet.

 6                    THE COURT:     As I now recall, my court

 7    reporter is now on vacation.     There was some issue of

 8    y'all not wanting to pay for it.

 9                    MR. MOSSER:     No, Your Honor, we sent a

10    check out the day we got the invoice from her.

11                    THE COURT:     Well, but I remember that

12    conversation "that's not the way we do it in Dallas or our

13    word is good and therefore" --

14                    MR. MOSSER:     I don't believe that

15    occurred.

16                    THE COURT:     Well, I believe her, and I

17    notice y'all had referenced something in your response

18    about how long it took you to get it.     As I recall the

19    reason was it took her a long time to get a check.     She

20    wasn't going to start on it till she got a check.

21                    MR. MOSSER:     Your Honor, I have a

22    certified letter indicating when she received the check

23    and when she deposited the check so I know we have sent

24    out a check for that transcript.

25                    THE COURT:     For the one that you have?




Exhibit N                                               App. 66
                                                                   26

 1                    MR. MOSSER:    For the one that took about

 2    two or three months to get.    I do not know about the other

 3    one. I know we sent out the check from that as well.

 4                    THE COURT:    Once you sent out the check

 5    how long did you take to get it?

 6                    MR. MOSSER:    About two or three months.

 7    Once sent it out and saw it was deposited.

 8                    THE COURT:    Okay.   We have been busy.

 9    That's the only order?   This isn't it.     Is there one that

10    I haven't signed that was filed before June?

11                    MR. HAREN:    I believe it was filed on June

12    11, 2014, envelope No. 1510270.

13                    THE COURT:    Motion to stay and plaintiff's

14    third motion to compel, that was it?

15                    MR. MEADE:    Correct.   The way that that

16    had happened procedurally, Your Honor, was that the

17    defendants filed a motion to stay while they were awaiting

18    the transcript of the temporary injunction hearing because

19    they wanted to stay all discovery and proceedings in this

20    action until they could have their motion for venue set.

21    We pointed out to the court that the rules specifically

22    state that discovery proceeds while you await a motion on

23    motion to transfer venue and the court overruled that

24    objection as well.

25                    THE COURT:    Obviously I didn't grant any




Exhibit N                                               App. 67
                                                                       27

 1    sanctions.

 2                       MR. MEADE:    No, we withdrew that request,

 3    Your Honor.

 4                       THE COURT:    Okay.

 5                       MR. MOSSER:    Your Honor, if I may also

 6    make an objection.     Your court has local rules that

 7    require certain level of conference before any motion.

 8    These two motions have not been conferred on.       They

 9    represent that only one email was the attempt.       They never

10    made multiple attempts as required under the rules and I

11    believe these are improper to be heard today over my

12    motion to transfer venue which was set.

13                       THE COURT:    You didn't do that on your

14    motion to transfer.

15                       MR. MOSSER:    I beg to differ, Your Honor.

16    I have a certificate of conference --

17                       THE COURT:    Back from March, not for this

18    setting.     And I just saw one on theirs.

19                       MR. MOSSER:    It says that they made one

20    e-mail attempt and that's it.

21                       THE COURT:    I have seen several letters

22    back and forth.

23                       MR. HAREN:    Your Honor, I can provide you

24    with multiple letters reminding them of their obligations

25    under the court's order and asking them to withdraw their




Exhibit N                                                 App. 68
                                                                    28

 1    motion to quash because their objection was invalid.

 2                     THE COURT:   Yes.

 3                     MR. MEADE:   Your Honor, I think in the

 4    context of what you are seeking from the relief from the

 5    court should inform the court and what conference is

 6    necessary.    When you are seeking to compel discovery that

 7    the other side has, you know, repeatedly quashed, quashed

 8    the subpoenas, quashed the depositions, refusing to

 9    provide discovery and written you letters saying that they

10    are not going to provide it to you, you know, sending them

11    a letter that says, look, we are filing this motion and we

12    would like to confer, we tried to call, nobody called back

13    and then sending me a letter saying one phone call wasn't

14    enough, so I wrote my phone number on the front of it, on

15    the front of their letter and said call me at this number,

16    my direct line and I sent it back to them. I never heard

17    back.

18                  I am not going to spend my day making phone

19    calls to people who don't want to talk to me and don't

20    want to cooperate in the discovery and litigation

21    proceeding.

22                     THE COURT:   When is your first deposition?

23                     MR. MEADE:   Monday, Your Honor.    Taking

24    two depositions on Monday, two individual depositions on

25    Monday, corporate representative depositions on Tuesday.




Exhibit N                                                 App. 69
                                                                         29

 1                       THE COURT:     Okay.     Here is what I have

 2    done.     I have signed this order that was prepared and

 3    filed back on June 11th.        I have scratched out the court

 4    finding that defendant's counsel has abused the discovery

 5    process, that paragraph and the attorneys fees paragraph,

 6    I have scratched those out and then I have added the

 7    documents must be produced by August 1, 2014 at 5:00 p.m.

 8                       MR. MEADE:     Thank you, Your Honor.

 9                       THE COURT:     That means you have to work --

10                       MR. MEADE:     And one -- because I have just

11    been dealing with it for a little while, produce doesn't

12    mean put in the mail at 5:00 o'clock p.m., sent from

13    Dallas to arrive several days later but I would like that

14    they be produced at my offices.           And they can produce them

15    electronically as we do.        That's the best method, of

16    course.     But they be produced at my offices by 5:00

17    o'clock so I can get ready for depositions.

18                   Thank you, Your Honor.

19                       THE COURT:     Okay.     I added "at plaintiff's

20    attorneys office".

21                       MR. MEADE:     Thank you, Your Honor.

22                       THE COURT:     You understand that, counsel?

23                       MR. MOSSER:     I object to it.     I believe

24    the method of service is proper under Supreme Court rules

25    method of service.




Exhibit N                                                     App. 70
                                                                           30

 1                      THE COURT:    But do you understand my

 2    order?

 3                      MR. MOSSER:    Yes, Your Honor.

 4                      THE COURT:    Here is your copy.        Counsel,

 5    here is your copy.

 6                      MR. MEADE:    Okay.   Next, and I am going to

 7    have my associate deal with the next issue.         The

 8    deposition topics of the corporate representatives.

 9                Before we get to that issue, we have noticed a

10    site inspection, Your Honor, for August 1st.         The defense

11    counsel has stated that they aren't going to allow it to

12    go forward at 8650 Frisco.      They have not objected to it

13    formally.

14                      THE COURT:    I don't think that's on --

15                      MR. MOSSER:    I don't think either of these

16    issues are before the court today.

17                      THE COURT:    I don't think so.

18                      MR. MEADE:    We may be back down here

19    shortly, Your Honor.

20                      THE COURT:    I am sure you will.

21                      MR. MEADE:    I will let Mr. Haren address

22    the deposition.

23                      MR. MOSSER:    I don't believe that's before

24    the court either, Your Honor.

25                      THE COURT:    I do have that on here.




Exhibit N                                                   App. 71
                                                                       31

 1                     MR. MOSSER:    I do not have notice of that.

 2                     THE COURT:    Well, maybe I don't.     Motion

 3    to compel production which I just did.

 4                     MR. HAREN:    It's styled as plaintiff's

 5    response to defendant's supplemental objections to

 6    deposition topics.

 7                     THE COURT:    Well, I have your motion but I

 8    don't know that I have a docket on that issue.        So I

 9    didn't set that for hearing today.

10                     MR. MOSSER:    Your Honor, if it helps I

11    called the court and inquired of the hearings set for

12    today.   A motion to compel and motion to enforce the

13    court's order and I believe my motion to transfer venue

14    and those were the three set.

15                     THE COURT:    I mean I have got it pulled.

16    I have got defendant's supplemental objections to

17    deposition topics that was filed on 7-21.      And I have got

18    plaintiff's response but you don't think it's set?

19                     THE CLERK:     I don't know what this is.

20                     THE COURT:    Yeah.   I see it says our

21    comment -- clerk does this.     Filed 7-18, 2 on docket.     Now

22    I don't know because I had a lot more than two motions I

23    read early this morning.

24                     MR. MEADE:    This docket has three motions

25    set, Your Honor, and my associate does have a copy of the




Exhibit N                                                App. 72
                                                                      32

 1    notice of hearing on this.

 2                     THE COURT:   Okay.   Let me see it.

 3                 When was that filed with the court?

 4                     MR. HAREN:   I believe that was filed

 5    contemporaneous with the motion.

 6                     THE COURT:   Okay.   Which was?

 7                     MR. HAREN:   7-22 at 8:04 p.m., envelope

 8    1912898.

 9                     THE COURT:   So let me ask you this.      Is

10    this one of the depositions y'all are taking next week?

11                     MR. MEADE:   These are the corporate

12    representatives depositions to occur on Tuesday of next

13    week, yes.

14                     THE COURT:   Okay.   So they need to be

15    heard.

16                     MR. MEADE:   Yes.

17                     THE COURT:   Okay.   You filed your -- I

18    mean obviously on the 21st you filed a supplemental.

19                 Tell me where because I don't see -- I didn't

20    have it in my notebook that my clerks prepared and I'm

21    going back and looking, where -- who is Mike Verucchi?

22                     MR. HAREN:   Mike Verucchi is the CPA who

23    we are attempting to subpoena documents from.

24                     THE COURT:   Okay.   So that doesn't have

25    anything to do with the corporate rep?




Exhibit N                                                App. 73
                                                                     33

 1                    MR. HAREN:     No, Your Honor.

 2                    THE COURT:     All right.   That's what I

 3    thought.

 4                So the first thing I have got on deposition

 5    topics is filed on 7-21 which I have in my notebook,

 6    defendants' supplemental objections to deposition topics.

 7    When was the original filed?

 8                    MR. MOSSER:     It was filed in response to I

 9    believe the original set of deposition topics.      I'm not

10    sure if it was the original or second set.

11                    THE COURT:     What was the date?

12                    MR. HAREN:     The original objections were

13    filed on June 5th in response to the second set of

14    notices.

15                    THE COURT:     Let me go back.   I see it.

16    Okay.

17                Okay.   I'm ready to listen.

18                    MR. MOSSER:     Your Honor, if I could get a

19    couple of moments to at least pull up the documents?

20                    THE COURT:     Sure, go ahead.

21                Tell me when you are ready, counsel.

22                    MR. MOSSER:     I am just looking at the

23    supplement, Your Honor.

24                    THE COURT:     I have got the supplement.     Do

25    you want me to hand you my copy?




Exhibit N                                                 App. 74
                                                                        34

 1                      MR. MOSSER:    I have got the original

 2    objections.   I was just looking for the other one.

 3                      THE COURT: Here it is, counsel.

 4                      MR. MOSSER:    May I approach?     Thank you,

 5    Judge.

 6                      THE COURT:    Okay.   Let's go.   We have

 7    other people waiting.

 8                      MR. HAREN:    Your Honor, I think you are

 9    familiar with the background so we can --

10                      THE COURT:    I am.

11                      MR. HAREN:    -- save quite a bit of that.

12                  We have noticed several topics for deposition

13    of their corporate representatives.       They objected to

14    several of these.

15                  First is a topic about the ownership and

16    operation of 8650 Frisco which is the entity that operates

17    the restaurant.

18                  We have asked all of the defendants to testify

19    as to their knowledge of the, of their ownership -- sorry,

20    asked all the defendants to testify as to their knowledge

21    of the ownership and operation of 8650 Frisco.        We believe

22    this is necessary in order for us to see what, get all of

23    the information we can about 8650 Frisco since the

24    ownership and operation of the entity is the whole point

25    of the lawsuit as well as to see what these entities know




Exhibit N                                                  App. 75
                                                                     35

 1    about the person they are receiving distributions and

 2    assets from.     Because some causes of action are that they

 3    have received -- that 8650 Frisco has improperly diverted

 4    its assets to other companies and these companies have

 5    received them.     We want to know if they knew who they were

 6    getting it from and what they knew about the circumstances

 7    of their receivable property.

 8                   The next objection are to things that have

 9    never happened.     They say that this company has never had

10    dealings with plaintiffs, therefore it shouldn't be forced

11    to put up a corporate representative.

12                   That's all fine and good but that's an answer.

13    If they have no knowledge of something they should testify

14    under oath we have no knowledge of that, and that should

15    be a pretty easy topic to prepare their representatives

16    for.

17                   The next is acceptance of funds and furniture

18    from plaintiff that this -- this transaction is a mess.

19    People -- different entities gave different money to

20    different entities and it's hard to tell who got what and

21    we would like to know what each individual defendant

22    received from the plaintiff so we can keep our cause of

23    action straight and our damages model centered.

24                   The next category is the awareness of business

25    operations of plaintiffs.     This is relative to their




Exhibit N                                               App. 76
                                                                     36

 1    motion to transfer and specifically their allegations that

 2    we have committed perjury in any number of ways regarding

 3    our own business operations.

 4                Their views of what our business operation is

 5    discoverable because it directly rebuts what their

 6    arguments are.

 7                Next is the ownership of a trademark.     They

 8    say there is no trademark.     And we would just like them to

 9    say that under oath.

10                Next there is testimony as to the ownership of

11    8650 Frisco. We think all of the defendants should have to

12    testify as to their knowledge of that because it's a

13    relevant fact and because we think all of the defendants

14    may actually claim to own it at some point.

15                And finally there is questions about corporate

16    governance of defendants, that this is relevant because we

17    need to see how these companies operate because we are

18    alleging alter ego and various veil piercing theories and

19    we need to see how they operate so we know how to pierce

20    it.

21                And those were all of their objections.

22                     THE COURT:    Counsel, you want to respond?

23                     MR. MOSSER:    Your Honor, I don't believe

24    we have ever said that there is no trademark.     I believe

25    we said certain entities don't own a trademark.     We have




Exhibit N                                               App. 77
                                                                      37

 1    said --

 2                     THE COURT:    Say whatever your people need

 3    to say under oath.    It's a question.    They will answer

 4    whatever they answer.

 5                     MR. MOSSER:     I think launching into a

 6    discovery process that is patently overbroad.      Seeking

 7    information about entities that are not involved in a

 8    transaction that they don't even understand what's going

 9    on, I don't think it's proper to continue and bring in all

10    of these entities into a process of discovery and set them

11    up for a corporate representative deposition if they had

12    no involvement in the process.      If they had no involvement

13    in any of the alleged transactions.

14                  I think we said that several times in response

15    to either admissions or in our answer and that has been

16    filed.

17                     THE COURT:    But they are all defendants,

18    right?

19                     MR. MOSSER:     Improperly, yes, Your Honor.

20                     MR. MEADE:    And Your Honor, just to

21    satisfy the curiosity I will just walk through who the

22    defendants are real quickly and why they are the

23    defendants.   8650 Frisco LLC.     That's the entity that we

24    gave $948 thousand and change to which we allege an

25    ownership interest and which there are some documents




Exhibit N                                                App. 78
                                                                      38

 1    going back and forth.     That entity does business as Estilo

 2    Gaucho Brazilian Steakhouse, okay?       There is a trademark

 3    for that.     That trademark is in defendants Bahtche,

 4    BAHTCHE, LLC.     For some reason, and Bahtche is owned by

 5    defendants Claudio Nunes and David Jeiel.       David Jeiel and

 6    Claudio Nunes are defendants, also known as Mandona LLC.

 7    Mandona LLC operates and manages 8650 Frisco LLC.

 8    Galovelho LLC, the other defendant, the last remaining

 9    one, is owned by Claudio Nunes and David Jeiel Rodriguez

10    and that is the entity that holds their ownership interest

11    in 8650 Frisco, LLC.     I believe I have got that corporate

12    structure right but I would like to examine the defendants

13    on that corporate structure.

14                       THE COURT:    Okay.

15                       MR. MOSSER:    Your Honor, if they would

16    have pled that, that would be fine to make this argument

17    now.     They have not pled that recitation of any of these

18    facts.    They have merely said plaintiffs and defendants

19    most of the time in their petition.

20                       THE COURT:    I mean I have heard that

21    before.     This isn't the first time I have heard that, how

22    they think it all links up and, you know, the discovery is

23    going to flesh it out; either it is or it isn't.       I am

24    sure if they find out that as you allege there is an

25    improper party, then they are going to probably dismiss




Exhibit N                                                 App. 79
                                                                     39

 1    them.   Because nobody wants to cloud the case.

 2                 Okay. I'm going to order the --

 3                     MR. MOSSER:    Your Honor, if I may make my

 4    record though as to the objection.

 5                     THE COURT:    Yes.

 6                     MR. MOSSER:    We make the objection as to

 7    the ownership and operation of 8650, because 8650 alone

 8    should be charged with informing the parties on the

 9    ownership and operation of 8650.      I should not have to

10    have an unrelated entity like Bahtche describe the

11    ownership and operation of another entity like 8650.

12                 I have used the example of -- opposing counsel

13    objects to my example of trying to depose Ford on

14    Microsoft's ownership and operation.      I believe entities

15    are set up distinctly to be separate entities under the

16    Business Organizations Code and the corporate rep from one

17    of the entities that is that entity that they are trying

18    to get this information on should be deposed as to those

19    issues. I don't think it's proper just like it's not

20    proper to serve a discovery request on Bahtche to try to

21    get 8650's documents and records.

22                 The Supreme Court case law that deals

23    specifically with that issue and I believe that comparison

24    is apt to deposition topics as well.      The specific details

25    of the discovery or the deposition topic should be limited




Exhibit N                                                App. 80
                                                                     40

 1    to ones that those corporate reps are charged with that

 2    knowledge on.

 3                 The distribution and assets of 8650, if 8650

 4    made distributions or -- distributions of either funds or

 5    assets then 8650 is capable and able to talk about it.        We

 6    shouldn't have to produce a corporate rep for all of this

 7    to say, no, we didn't do this.     This is 8650's

 8    distribution, operation of their company is the one that

 9    they are trying to get the information on.

10                 Similarly, the dealings with the other

11    parties.   As I have said, we have made that statement

12    affirmatively that two entities, I believe Mandona and

13    Bahtche, the two we have represented, have never had any

14    dealings with any of the plaintiffs.     Those entities are

15    there for business organizations purposes and I don't

16    believe the proper party.

17                 I have got to wait a certain amount of time in

18    order to file no-evidence summary judgments on this but if

19    there is no document that they have that proves the

20    relationship and dealings between those entities then I

21    believe that's going to be the next course of action.

22                     THE COURT:    But counsel, that's why they

23    want to depose them.

24                     MR. MOSSER:    They don't have any documents

25    that support this.     This is a fishing expedition.




Exhibit N                                                 App. 81
                                                                     41

 1                    MR. MEADE:    Your Honor, I have got over

 2    7,000 documents. A lot of them support -- I didn't come up

 3    with this structure out of thin air.    Almost humorous

 4    aspect to the position that defense counsel has taken, if

 5    this was the only issue I was having to deal with from

 6    them I would probably laugh about it.    They have told me

 7    that one corporate representative is going to testify on

 8    behalf of all of these different entities.     David Jeiels

 9    Rodrigues, the defendant, he is going to be the corporate

10    representative for all these defendants next Tuesday.

11    Well, to then say, well, wait, Mandona has no knowledge of

12    8650 Frisco's dealings but that David Jeiel Rodrigues is

13    going to testify as to the corporate representative for

14    Mandona and 8650 Frisco but 8650 Frisco has knowledge of

15    it, it blows my mind.

16                I want to find out what the defendants know

17    about the structure.    I have got a bunch of documents I

18    want to cross examine them on and I have got some

19    open-ended questions and I would like to get their answers

20    to. And I need each defendant to give me their position.

21    And if the position is we don't know from each defendant,

22    that's fine, too.   They can stick to it.    But they have

23    got to answer the question.    I need it from each one.      For

24    example, 8650 Frisco may have given an asset, somebody

25    else received it.   I want to know what they gave as




Exhibit N                                               App. 82
                                                                      42

 1    reciprocity for receiving that, the circumstances under

 2    which that happened. There is a lot of transactions here.

 3    There is going to be a lot of discovery; we are just

 4    getting started.

 5                       THE COURT:     Anything else?

 6                       MR. MOSSER:     I have never even gotten a

 7    chance to go through the rest of my objections

 8                       THE COURT:     Go ahead.

 9                       MR. MOSSER:     I'm glad opposing counsel

10    thinks this is humorous.        The business code says these are

11    separate entities.     They are not a method to amalgamate

12    the entire transaction into one entity.

13                       THE COURT:     Counsel, they have all been

14    sued; they are all defendants.

15                       MR. MOSSER:     I understand, Your Honor.

16    The knowledge of the corporate rep is the entity's

17    knowledge.   The entity's knowledge is separate information

18    from Mr. Jeiel.     And opposing counsel can find this as

19    humorous as he likes, but the entity's knowledge is

20    separate from that as the individuals testifying. It's

21    separate from that of the other entities testifying.

22                 It's improper to ask an entity about

23    information that is not under their possession. It's

24    improper to ask a corporate rep of one entity about the

25    operation of another.     Because it creates very fuzzy lines




Exhibit N                                                  App. 83
                                                                       43

 1    trying to make that distinction and I imagine opposing

 2    counsel will be back here trying to say we have inflated

 3    these issues and they are improperly denying questions

 4    that they shouldn't be denying.

 5                  We are maintaining that the entities are

 6    separate and the knowledge of one corporate rep is

 7    attributed to that corporation or entity.       They'll all see

 8    in this case, and we are going to keep that position

 9    throughout this case.

10                      THE COURT:    I understand.   So here is what

11    I understand you are going to do and I think you have

12    every right to do this.    You are going to designate the

13    same corporate rep for all the defendants.

14                      MR. MOSSER:    Yes, Your Honor. I think we

15    have already done that as well.

16                      THE COURT:    Okay.   And so when he goes in

17    to give one deposition he is going to have on his 8650

18    Frisco LLC d/b/a --

19                      MR. MOSSER:    Hat.

20                      THE COURT:    -- Gaucho Brazilian Steakhouse

21    hat, right?

22                      MR. MOSSER:    Yes, Your Honor.

23                      THE COURT:    They are going to ask him

24    questions.

25                      MR. MOSSER:    Yes, Your Honor.




Exhibit N                                                 App. 84
                                                                      44

 1                      THE COURT:    And he is going to either know

 2    something or he doesn't.

 3                      MR. MOSSER:    Yes.

 4                      THE COURT:    And then we're going to take

 5    the corporate representative for Mandona LLC, right?

 6                      MR. MOSSER:    Yes, Your Honor.

 7                      MR. MEADE:    I think, Your Honor, correct

 8    me if I'm wrong because I don't generally put out the

 9    notice of deposition but I think I may have noticed them

10    all at one time because they said they were going to

11    notice, present one person as the corporate

12    representative.    We are going to have to be -- I guess I

13    am going to have to be a little bit creative about how to

14    ask those questions during the deposition.

15                      THE COURT:    I think you are going to have

16    to ask them separately.

17                      MR. MEADE:    Yes, I think I will, Your

18    Honor.

19                      THE COURT:    Assume he is going to put on

20    his Mandona hat and they are going to ask him a set of

21    questions.   And as the Mandona representative, he may or

22    may not know the answers.

23                      MR. MOSSER:    Yes, Your Honor, and that's

24    what my limitations on these requests are.      The questions

25    that are directed at 8650 should only be directed at 8650.




Exhibit N                                                 App. 85
                                                                      45

 1                      THE COURT:    They will only be directed at

 2    8650.   And the Mandona ones will be directed at Mandona

 3    LLC and the Galovelho LLC corporate representative will

 4    represent under oath what he knows as the corporate rep

 5    for that corporation.    And the Bahtche LLC representative

 6    will answer the questions as a representative of that one

 7    which -- and I understand.      He may be able to answer them

 8    as to 8650 and not answer them to the others.       I don't

 9    know.

10                      MR. MOSSER:    Yes, Your Honor.

11                      THE COURT:    But I understand he is going

12    to be -- one person is going to be putting on those

13    different hats.

14                      MR. MOSSER:    Yes, Your Honor.

15                      THE COURT:    Is that correct?

16                      MR. MOSSER:    Yes, Your Honor.

17                      THE COURT:    And then what about the Nunes,

18    Claudio --

19                      MR. MOSSER:    Claudio Nunes?

20                      THE COURT:    Nunes and Mr. Rodrigues, are

21    they giving depositions?

22                      MR. MEADE:    I am taking their depositions,

23    Your Honor, on Monday and they are not corporate

24    representatives in that capacity.

25                      THE COURT:    So they will be individual.




Exhibit N                                                 App. 86
                                                                      46

 1    And so you are going to have to separate them out, the

 2    corporate representatives, and what I'm understanding is

 3    going to happen is if they are corporate, they are going

 4    to send the same corporate rep, one guy for all these

 5    corporations and he is going to answer for that

 6    corporation.

 7                      MR. MEADE:    Correct, Your Honor.

 8                      THE COURT:    And so you just need them --

 9    I'd do the ones on one and then I would end that

10    deposition and then I would start another.

11                      MR. MEADE:    I think that's the best way to

12    do it, Your Honor.

13                      THE COURT:    Okay.

14                      MR. MOSSER:    Two more objections to go

15    through, Your Honor.

16                      THE COURT: Okay.

17                      MR. MOSSER:    Our views of the operations

18    of plaintiff.     Their company, they know how it's operated.

19    It's not our company, we don't know how they operate it.

20                      THE COURT:    Then all you have to say is

21    you don't know.

22                      MR. MOSSER:    I think the proper procedure

23    is to limit this on overbreadth and fishing expedition

24    because we don't know anything about how they operate

25    their company.




Exhibit N                                                App. 87
                                                                         47

 1                       THE COURT:    Well then just say that under

 2    oath.    Your corporate rep says he doesn't know.

 3                       MR. MOSSER:    Similarly with the acceptance

 4    of funds and furniture from plaintiff, plaintiff should

 5    know who they sent stuff to.

 6                       THE COURT:    So should your people.    There

 7    could be a dispute about that.       My guess is there is a

 8    dispute about it.     So in that case they know what they

 9    think they sent, they want to know what your guy thinks

10    they got from these people or they didn't get anything.

11                       MR. MOSSER:    Yes, Your Honor.   Got to make

12    my record, Your Honor, and those are my objections.

13                       THE COURT:    I understand.

14                       MR. MEADE:    I think the simple aspect, I

15    mean we gave them $948 thousand.       I guess, what do they

16    think we got for that?     Exactly, Your Honor.

17                       THE COURT:    That's going to be one of your

18    questions.

19                       MR. MEADE:    Absolutely, Your Honor.

20                       THE COURT:    What else?

21                       MR. MOSSER:    Those are my objections, Your

22    Honor.

23                       THE COURT:    Your objections are overruled.

24    Motions granted.

25                  I signed an order, order compelling testimony.




Exhibit N                                                  App. 88
                                                                     48

 1                    MR. MEADE:    Thank you, Your Honor.

 2                    THE COURT:    Anything else?

 3                    MR. MOSSER:    I have one housekeeping

 4    issue, Your Honor.

 5                    THE COURT:    I am getting hungry for

 6    fajitas, too.

 7                    MR. MOSSER:    I understand it.   The motion

 8    to transfer venue has been continued.

 9                    THE COURT:    Yes.

10                    MR. MOSSER:    Can I get a date certain on

11    when that motion will be heard?

12                    THE COURT:    Well, it probably depends on

13    when -- if y'all delay getting the discovery done. That's

14    what I have heard happened last time is that we set it for

15    today, possibly, I am not sure if it was set or not, there

16    was obviously a dispute about that.     But discovery didn't

17    get done. And the reason I think it got set for today, if

18    it did, was that everybody agreed all discovery could be

19    done by now; is that right?

20                    MR. MEADE:    They unilaterally set the

21    motion for today, Your Honor. And we had had a motion --

22    we had previously noticed these depositions, they had

23    quashed them, we had moved to compel them and we agreed on

24    dates.

25                    THE COURT:    Okay.




Exhibit N                                               App. 89
                                                                     49

 1                      MR. MEADE:   But then they on the Sunday

 2    before the Monday and Tuesday depositions notified us that

 3    they wouldn't go forward and we said that's fine if they

 4    want to have their hearing on the motion to transfer venue

 5    but don't let them use this issue to avoid the

 6    depositions.    Let us have the depositions first.    Your

 7    Honor said that you would. And so the situation is

 8    basically as Your Honor said, we will go forward with the

 9    depositions before the MTV.

10                   And my issue is this, Your Honor, I hope I am

11    wrong but I am guessing that at some point during these

12    depositions next Monday and Tuesday I am going to have to

13    stop the depositions and we are going to have to come down

14    here just based on what I expect the performance --

15                      THE COURT:   And I will just tell you next

16    Monday and Tuesday I will be with all the Civil District

17    Judges of Harris County at Lost Pines for our CLE.

18                      MR. MEADE:   Should we come there to find

19    you?

20                      THE COURT:   I will be happy to see you

21    there.

22                      MR. MEADE:   I'm sure, Your Honor. Thank

23    you for your time.

24                      THE COURT:   So after the depositions are

25    done, then discovery is done, we will reset it.      Once




Exhibit N                                               App. 90
                                                                      50

 1    that's done --

 2                      MR. MOSSER:    Can we set it for the

 3    Wednesday after the depositions are accomplished?

 4                      THE COURT:    No. 1, I don't do hearings on

 5    Wednesdays and you are just going to have to get with the

 6    court clerk after they are done and we will do it.

 7                   I mean if venue is not proper here, it will be

 8    transferred.     If it is proper here, it will stay here.

 9                      MR. MOSSER:    Yes, Your Honor.

10                      MR. MEADE:    Thank you, Your Honor.

11                      MR. MOSSER:    May we be excuse?

12                      THE COURT:    You are excused.

13

14                      (End of proceedings).

15

16

17

18

19

20

21

22

23

24

25




Exhibit N                                                  App. 91
                                                                         51

 1    THE STATE OF TEXAS

 2    COUNTY     OF    HARRIS

 3                    I, LaVearn Ivey, Deputy Court Reporter

 4    in and for the 133rd District Court of Harris County,

 5    State of Texas, do hereby certify that the above and

 6    foregoing contains a true and correct transcription of

 7    all portions of evidence and other proceedings

 8    requested in writing by counsel for the parties to be

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

10    the above-styled and -numbered cause, all of which

11    occurred in open court or in chambers and were

12    reported by me.

13                    I further certify that this Reporter's

14    Record of the proceedings truly and correctly reflects

15    the exhibits, if any, admitted by the respective

16    parties.

17                     I further certify that the total cost for the

18    preparation of this Reporter's Record is $450.00         and was

19    paid by Defendants.

20                    WITNESS MY OFFICIAL HAND this the 31st day

21    of July, 2014.

22                              /s/ LaVearn Ivey ___
                                LaVEARN IVEY, Texas CSR No. 822
23                              Expiration date: 12-31-14
                                Court Reporter
24                              8831 Bedworth Ln.
                                Houston, Texas 77088
25                              (281) 820.0805




Exhibit N                                                 App. 92
From: Nancy Jacobs        Fax: (713) 658-9002              To: 19722675072@rcfax.cc Fax: +19722675072             P11ge 4 of 8 07/29/2014 3:27




                                                                                                                  6/1112014 2:07:32 PM
                                                                                                                  Chris Daniel • District Clerk
                                                                                                                  Harris County
                                                                                                                  Envelope No: 1510270
                                                                                                                  By: ARRIAGA, AMANDA R

                                                                     Cause No. 2014-10896

                     LOS CUCOS MEXiCAN CAFE VIII,
                     INC.; LOS CUCOS MEXICAN CAFE IV,
                                                                                §
                                                                                §
                                                                                                IN THE DISTRICT COURT OF                     fl
                     INC.; MANUEL CABRERA; AND
                     SERGIO CABRERA,
                                                                                §
                                                                                §
                                                                                                                                   ~    STPl)l
                                                                                §
                                                                                                                                        O.fteo)(
                                                Plaintiffs,                     §                                   ~b
                                                                                §                                 cq~
                     v.                                                         §                   HAR~OUNTY, TEXAS
                                                                                §                            ~-
                     8650 FRISCO, LLC D!B/A ESTILO                              §
                     GAUCHO BRAZILIAN STEAKHOUSE;                               §                  ~\)
                     MANDONA, LLC; GALOVELHO, LLC;                              §               o~!
                     BAHTCHE, LLC; CLAUDIO NUNES; and
                     DAVID JEIEL RODRIGUES,
                                                                                §
                                                                                §              ~
                                                Defendants.
                                                                                §
                                                                                §
                                                                                           '~ 133rd JUDICIAL DISTRICT
                                                                                         :i}!'
                                                                                       _}(il

                                         ORDER ON DEFENDANTS' MOT<iMWTO STAY ALL MATTERS
                                                                                 ,z~

                                                  PLAINTIFFS'          THI~~TJON TO COMPEL
                                                              (\)
                               The Court, having considered !@jendants' Motion to Stay All Matters and Plaintiffs'
                                                                      u·
                     Third Motion to Compel and the                  ~clive responses, arguments of counsel, and evidence, has
                                                                 .
                     determined that Defendants' "1_<;£i0n should be and is hereby DEN fED and that Plaintiffs' motion
                                                       '";)-)\
                     should be and is hereby G[l(!'_l>}k·ED. Specifically:
                                                 n~
                               The Court DE~YDef'endants' requesl to stay all matters.

                               The    Co~~"1y        OVERRULES Defendants' objections                   10   Plainliffs' Requests for
                     Production      No~ 2,     3, 4, 5, 7, and 8. IT IS ORDERED that Defcndunls shall produce all
                                      ~
                     document~onsive to Requests for Production Nos. l, 2, 3, 4, 5, 7, and 8 within 24 hours of
                     the enlry of this order.


                            ,,·erycmtf:lfas-detenmned tftat Lhe folluwiHg sa1@i_Q!JS are apprapnatc·, SatiSfY rhe legitilllatc




                 Exhibit O                                                                                                                       App. 93
From: Nancy Jacobs         Fax: (713) 658-9002                  To: 19722675072@rcfax.cc Fax: +19722675072     Page 5 of 8 07/29/2014 3:27




        ~I 1A          purposes of d:scovmy sancnons, and are neuher lllore 1101 less striRgtmt thaH                   n~~

         l    'V1L     acee~ltjbTise P 'fPGS&."  1




                       liHGHlying-metiOtrllllOlhe deposition of each of the Defendarlts in assGI'flauce witA ttl is el'!!sr an:
                                                                                                              "-~'=
                      ..cilaFgea   to tile MOSSER bAW }'!llll+.-'l'fle-MO&Siiil I         AW   Fm'4 •h·•ll   pn~~
                       '                                  · lrtir10 days of the signing efthjs order. _      (Y.»
                                ·l'f' IS FURTHER ORDERED that tl'le i"oilo"ing facts                     m~~AI'lL!Stt~
                     'jmrpuses-irr1l1ts hngatron: that Detendauts htws-m~sented to yenu~arris Count~

                                 IT IS FURTHER ORDERED that failure to                    comply,,~~ this Order may result in the
                                                                                               .&&
                  fhrther imposition of sanctions or a holding of contempt, ~~habie by fin~ or imprisonment or
                            .0      ~q                                       ,-';0~ (J},~~~~O)~
                  both.         ~....Jv....Q 01~ ~- & fij~                                             1
                                                                                                             (f-..'-'-(; / d-ol tf
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                      DATED:1~J-C?-c:Jo!L/                                      «:_Y
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                 Exhibit O                                                                                                                   App. 94
                                                                                                                  8/6/2014 1:52:47 PM
Settlement   StatementB/5/2014                                                              Chris Daniel - District Clerk Harris County
Los Cucos Mexican Cafe'   VIII,   Inc.   v.   8650 Frisco,   LLC                                                Envelope No. 2068747
                                                                                                              By: AMANDA ARRIAGA


                                                                                                                   Page       1

                                                   CAUSE NO.       2014-10896

              LOS CUCOS MEXICAN CAFE VIII,                           )     IN THE    DISTRICT COURT
              INC.;     LOS CUCOS MEXICAN CAFE                       )
              IV,    INC.;        MANUEL       CABRERA;              )
              AND SERGIO CABRERA                                     )
                                                                     )
                                                                     )
                                  PLAINTIFFS,                        )
                                                                     )
              VS.                                                    )    HARRIS COUNTY,           TEXAS
                                                                     )
              8650    FRISCO,        LLC D/B/A                       )
              ESTILO GAUCHO BRAZILIAN                                )
              STEAKHOUSE;          MANDONA,           LLC;           )
              GALOVELHO,          LLC;        BAHTCHE,               )
              LLC;    CLAUDIO NUNES;                AND              )
              DAVID     JEIEL RODRIGUES                              )
                                                                     )
                                                                     )
                                                                     )
                                  DEFENDANTS.                        )    133RD     JUDICIAL       DISTRICT
                                                                     )

         ***************************************************************




                                                   SETTLEMENT STATEMENT

                                                       AUGUST 5,         2014

         ***************************************************************




                                                                                      f[J       COPY

                                              Gulfstream Legal Group 713-354-2339

         Exhibit P                                                                                       App. 95
Settlement StatementS/5/2014
Los Cucos Mexican Cafe'   VIII,   Inc.   v.   8650 Frisco,   LLC




                                                                                        Page   2
   1                                                A P P E A R A N C E S

   2

   3     FOR THE PLAINTIFFS:
                KELLY STEPHENS
   4            STEPHENS           &     DOMNITZ,        PLLC
                2000 BERING DRIVE, SUITE 700
   5            HOUSTON, TEXAS 77057

   6
         FOR THE PLAINTIFFS:
   7            DAVID KINDER
                COX SMITH
   8            112 E.        PECAN STREET,                  SUITE 1800
                SAN ANTONIO,                  TEXAS 78205
   9

 10      FOR THE DEFENDANTS:
                JAMES C.          MOSSER
 11             MOSSER LAW PLLC
                17110 DALLAS PKWY, SUITE 290
 12             DALLAS, TEXAS 75248
                972.267.5072 FAX
 13

 14

 15

 16

 17

 18

 19

 20

 21

 22

 23

 24

 25


                                              Gulfstream Legal Group 713-354-2339

         Exhibit P                                                                  App. 96
Settlement StatementB/5/2014
Los Cucos Mexican Cafe' VIII,   Inc.   v.   8650 Frisco,   LLC




                                                                                                Page 3

   1                               MR.       STEPHENS:             Okay.    We're here to enter into a

   2     Rule 11 Agreement and dictate the terms of the settlement

   3     agreement for this lawsuit.                              And the money terms are that 8650

   4     Frisco will pay to -- we didn't determine it specifically, but

   5     I'll say Cabrera Brothers II.

   6                               MR.       MOSSER:             That's the LP?

   7                               MR.       STEPHENS:             Right.

   8                               MR. MOSSER:                   Cabrera Brothers II, LP I think is

   9     the right name.

 10                                MR.       STEPHENS:             That's correct.

 11                                MR.       MOSSER:             And it's 8650    --




 12                                MR.       STEPHENS:             Frisco, LLC.

 13                                MR.       MOSSER:             -- Frisco, LLC is the payor.

 14                                MR.       STEPHENS:             Will pay the amount of $900,000

 15      with a $60,000 payment due upon completion of the paperwork.

 16                                MR.       MOSSER:             Sure.

 17                                MR.       STEPHENS:             Okay.    At execution of the final

 18      paperwork and remainder of $840,000 payable over five years at

 19,     6.7    percent interest.                   And I guess we'll do the first payment

 20      due -- today is the 4th, so October 1st.

 21                                MR.       MOSSER:             Yeah, that's fine.    Is that all

 22      right with you guys?                     Everybody agrees with that.

 23                                MR.       KINDER:             David Kinder for the plaintiffs to

 24      further evidence the payment of the amounts due and to document

 25      the loan transaction the defendants will agree to enter into



                                            Gulfstream Legal Group 713-354-2339

        Exhibit P                                                                           App. 97
Settlement StatementB/5/2014
Los Cucos Mexican Cafe' VIII,   Inc.   v.   8650 Frisco,   LLC




                                                                                                 Page 4

   1     what we are calling a standard bank-type documentation for

   2     loans and that would include a note or promissory note, a deed

   3     of trust, appropriate UCC-ls to the extent plaintiffs determine

   4     it's necessary in assignment of the lease and any assets

   5     related to the restaurant.                              The agreements would be with time

   6     is of the essence.                    There would be no cure period for any

   7.    d e faul t   .   They will provide f o r a monthly wire transfer of the

   8     amounts due under the promissory note.                               And in connection with

   9     the restaurant at issue in this case there will be a $10 paid

 10      up license fee for the name of the restaurant that will be

 11      limited to that location.                          There will be no personal guarantees

 12.     by the defendants.

 13                                MR. MOSSER:                   Correct.   And we're going to

 14      dismiss with prejudice the

 15                                MR. STEPHENS:                   The mutual releases.

 16                                MR. MOSSER:                   -- pending lawsuit, releases, dah,

 17      dah, dah, dah.

 18                                MR. STEPHENS:                  Within, say, ten day of

 19'     execution.

 20                                MR. MOSSER:                   And dah, dah, dah is spelled D-A-H,

 21      D-A-H, D-A-H.

 22                                That sounds like our deal.

 23                                    (End of proceedings.)

 24

 25



                                            Gulfstream Legal Group 713-354-2339

         Exhibit P                                                                          App. 98
Settlement StatementS/5/2014
Los Cucos Mexican Cafe' VIII,   Inc.   v.   8650 Frisco,   LLC




                                                                                                 Page 5

   1                                          REPORTER'S CERTIFICATION
                                                SETTLEMENT STATEMENT
   2                                               AUGUST 5, 2014

   3

   4             I, Marisol Ramos, Certified Shorthand Reporter in and for

   5        the State of Texas, hereby certify that the foregoing is a

   6        correct transcription of the proceedings in the above-entitled

   7    �   matter.

   8             I further certify that I am neither counsel for, related

   9        to, nor employed by any of the parties to the action in which

 10         this hearing was taken, and further that I am not financially

 11         or otherwise interested in the outcome of the action.

 12 ,            Certified to by me this                         c{�f    A1h1tJ7 f-
                                                                             )
                                                                                  ..   , 2014.

 13

 14

 15
                                                       Marisol Ramos
 16                                                    Texas CSR No. 81 40
                                                       Expiration Date:        1 2/3 1/14
 17                                                    Firm Registration No. 245
                                                       Gulfstream Court Reporting
 18                                                    1300 Texas Avenue
                                                       Houston, Texas 7 7 002
 19                                                    7 1 3. 3 54. 23 3 9
                                                       7 13 . 23 7 . 87 42 Fax
 20

 21

 22

 23

 24

 25



                                            Gulfstream Legal Group 713-354-2339

            Exhibit P                                                                       App. 99
                                                                                                  1/21/2015 5:44:14 PM
                                                                             Chris Daniel - District Clerk Harris County
                                                                                                 Envelope No. 3853462
                                                                                                  By: EVELYN PALMER
                                                                                           Filed: 1/21/2015 5:44:14 PM

                                     Cause No. 2014-10896

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

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


                             Plaintiffs’ Fourth Amended Petition

       Plaintiffs Los Cucos Mexican Cafe VIII, Inc.; Los Cucos Mexican Cafe IV, Inc.; Manuel

Cabrera; and Sergio Cabrera file this Fourth Amended Petition against defendants 8650 Frisco,

LLC d/b/a Estilo Gaucho Brazilian Steakhouse; Mandona, LLC; Galovelho, LLC; Bahtche,

LLC; Claudio Nunes a/k/a Alex Nunes; and David Jeiel Rodrigues:

                                        Discovery Level

       1.      The plaintiffs intend to conduct discovery under Level 3 of Rule 190.3 of the

Texas Rules of Civil Procedure.

       2.      The plaintiffs seek damages within the jurisdictional limits of this Court,

including monetary relief over $1,000,000.

                                             Parties

       3.      Plaintiff, Los Cucos Mexican Cafe VIII, Inc. (“Los Cucos VIII”), is a Texas

Corporation with its principal place of business in Houston, Harris County, Texas.

       4.      Plaintiff, Los Cucos Mexican Cafe IV, Inc. (“Los Cucos IV”), is a Texas

Corporation with its principal place of business in Harris County, Texas.




Exhibit Q                                                                               App. 100
          5.    Plaintiff, Manuel Cabrera, is an individual who resides in Austin County, Texas.

          6.    Plaintiff, Sergio Cabrera, is an individual who resides in Harris County, Texas.

          7.    Defendant, 8650 Frisco, LLC (“8650 Frisco”), is a Texas limited liability

company doing business as Estilo Gaucho Brazilian Steakhouse. It has been served and appeared

herein.

          8.    Defendant, Mandona, LLC (“Mandona”), is a Texas limited liability company. It

has been served and appeared herein.

          9.    Defendant, Galovelho, LLC (“Galovelho”), is a Texas limited liability company.

It has been served and appeared herein.

          10.   Defendant, Bahtche, LLC (“Bahtche”), is a Texas limited liability company. It has

been served and appeared herein.

          11.   Defendant, Claudio Nunes a/k/a Alex Nunes (“Nunes”), is an individual citizen of

Texas. He has been served and appeared herein.

          12.   Defendant, David Jeiel Rodrigues (“Rodrigues”), is an individual citizen of

Texas. He has been served and appeared herein.

                                     Jurisdiction and Venue

          13.   Venue is proper under TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1) because a

substantial part of the events giving rise to this lawsuit occurred within this county. More

specifically, Plaintiffs and Defendants negotiated and entered into, on the record, an agreement

to settle the underlying complaints of Plaintiffs. The negotiations leading to this settlement took

place in the offices of Hawash, Meade Gaston Neese & Cicack, LLP, located at 2118 Smith

Street, Houston, Harris County, Texas 77002.

          14.   Jurisdiction is proper in this Court because the parties are all Texas residents and

the amount in controversy is within the jurisdictional limits of the court.


                                                  2
Exhibit Q                                                                               App. 101
                                      Factual Background

       15.     Manuel Cabrera and Sergio Cabrera are brothers with significant experience in

creating, owning, and operating restaurants. The brothers are the owners and operators of a

number of Mexican restaurants branded and known as “Los Cucos Mexican Cafe”. Each

restaurant is a separate legal entity registered with the State of Texas. Los Cucos VIII and Los

Cucos IV are two of these entities.

       16.     Manuel Cabrera, Sergio Cabrera, David Jeiel Rodrigues, and Claudio Nunes

(collective, the “Partners”) agreed to create and operate a restaurant together. The plan and

agreement was to create a Brazilian churrascaria-style restaurant in the Dallas, Texas area.

                                      The Underlying Background

I.     The initial agreement.

       17.     After a series of negotiations, the Partners agreed that, inter alia: (1) each partner

would obtain a 25% interest in the restaurant; (2) Manuel Cabrera and Sergio Cabrera

(individually or through entities subject to their control) would contribute $600,000 for start-up

capital; (3) David Jeiel Rodrigues and Claudio Nunes would contribute “sweat equity” by

contributing personal services to the creation and operation of the restaurant; (4) Manuel Cabrera

and Sergio Cabrera (individually or through entities subject to their control) would guarantee a

lease for the restaurant; (5) all intellectual property, including trademarks would be held together

with the restaurant; and (6) the Partners would share control, profits, and losses equally, but

would receive no other salary from the restaurant.

II.    Excess contributions and attempted renegotiation.

       18.     As work progressed on the restaurant, additional capital was needed. At David

Jeiel Rodrigues’ and Claudio Nunes’ request, Manuel Cabrera and Sergio Cabrera (individually

or through entities subject to their control) increased their contributions. The Cabreras’ total


                                                 3
Exhibit Q                                                                               App. 102
contributions eventually equaled more than $948,000. In addition, Manuel Cabrera and Sergio

Cabrera (individually or through entities subject to their control) paid for and/or loaned

equipment and furniture (including two large, expensive, and difficult-to-obtain Brazilian grills)

worth over $60,000 to the enterprise.

       19.     To account for the unanticipated and additional contributions, the Partners

attempted to negotiate a way for Manuel Cabrera and Sergio Cabrera (individually or through

entities subject to their control) to receive preferential distributions until their initial

contributions were repaid, subject to a small guaranteed distribution to David Jeiel Rodrigues

and Claudio Nunes.

III.   Creation of the corporate structure and the Restaurant operations.

       20.     While the Partners negotiated a new distribution structure, the Partners agreed to

form 8650 Frisco as the holding company for the Restaurant. Each of the four Partners was to

own 25% of 8650 Frisco. David Jeiel Rodrigues and Claudio Nunes created defendant Galovelho

to hold their 50% ownership interest in 8650 Frisco and the Restaurant. Sergio Cabrera and

Manual Cabrera designated Los Cucos VIII to hold their 50% ownership interest in 8650 Frisco

and the Restaurant.

       21.     8650 Frisco then entered into a lease agreement for restaurant space, which Sergio

Cabrera and Manuel Cabrera personally guaranteed.

       22.     David Jeiel Rodrigues and Claudio Nunes also desired to create a holding

company to manage 8650 Frisco, but the parties did not agree on this structure. Instead, David

Jeiel Rodrigues and Claudio Nunes formed Mandona to hold their collective 50% interest in the

management of 8650 Frisco. Manuel Cabrera and Sergio Cabrera did not form a holding




                                                4
Exhibit Q                                                                             App. 103
company to hold their collective 50% control over 8650 Frisco, but continued to hold control in

their individual capacities.

       23.     The Partners then opened bank accounts for 8650 Frisco and granted all of the

Partners access to the accounts.

       24.     Despite lengthy negotiations, it now appears that the Partners were and are unable

to agree on new distribution terms to take into account the Cabreras’ (or entities under their

control) substantial excess contributions. Instead, the Partners continued to operate as general

partners or joint venturers up and until the defendants removed the plaintiffs from the enterprise

and began to deny the plaintiffs’ ownership interest in 8650 Frisco and the restaurant.

IV.    The defendants’ exclusion of the plaintiffs.

       25.     Thanks to the contributions from Manuel Cabrera and Sergio Cabrera

(individually or through entities subject to their control), 8650 Frisco opened the Estilo Gaucho

Brazilian Steakhouse (the “Restaurant”) in February of 2013.

       26.     8650 Frisco is currently operated by David Jeiel Rodrigues and Claudio Nunes,

individually, and (upon information and belief) through their entities Mandona, Galovelho, and

Bahtche. The defendants have collectively refused to recognize the plaintiffs as co-owners of

8650 Frisco and the Restaurant, and have collectively excluded the plaintiffs from the operations,

control, distributions, and profits of 8650 Frisco and the Restaurant.

       27.     On information and belief, the defendants are distributing and/or diverting

$40,000 or more per month from 8650 Frisco and the Restaurant to themselves or their

designees. This is a violation of the parties’ agreement and the defendants’ duties as partners

and/or joint venturers.




                                                 5
Exhibit Q                                                                                 App. 104
        28.    On further information and belief, the defendants registered the Restaurant’s

“Estilo Gaucho” trademark in the name of Bahtche and/or transferred the trademark to Bahtche

without the plaintiffs’ consent, in violation of the parties’ agreement, and in breach of the

defendants’ duties as partners and/or joint venturers.

        29.    The plaintiffs have not received any distributions from the Restaurant’s

operations. Instead, the defendants have attempted to steal the plaintiffs’ contributions by

denying the plaintiffs any distributions or benefits of ownership. For example, the defendants

have:

                      transferred and/or laundered 8650 Frisco’s cash from bank accounts to
                       which the plaintiffs had access to new accounts to which the plaintiffs
                       have no access;

                      denied the plaintiffs access to 8650 Frisco’s new bank accounts;

                      failed to hold and/or give notice of meetings for 8650 Frisco;

                      denied the plaintiffs access to the Restaurant’s premises;

                      fired 8650 Frisco’s long-time accountant in favor of an account who, upon
                       information and belief, is controlled by the defendants;

                      denied the plaintiffs access to 8650 Frisco’s books and records;

                      denied the plaintiffs’ interest in 8650 Frisco;

                      distributed 8650 Frisco’s cash to themselves but not to the plaintiffs;

                      used equipment loaned to 8650 Frisco for the defendants’ own benefit and
                       refusing to return such equipment after demand was made; and

                      transferring the assets of 8650 Frisco to entities owned or controlled by the
                       defendants such as Bahtche.

        30.    The plaintiffs have made written demands for return of their money and property

and for an accounting. The defendants have refused. Instead, the defendants continue to use the




                                                  6
Exhibit Q                                                                               App. 105
plaintiffs’ property and the fruits of the plaintiffs’ contributions while simultaneously pretending

that the plaintiffs are owed nothing in the transaction.

                                The Underlying Causes of Action

       31.     The Plaintiffs sued Defendants alleging as causes of action: Breach of Contract,

Coversion, Breach of Fiduciary Duty, Fraud/Fraudulent Inducement, Civil Conspiracy, Aiding,

Abetting and Participation in Breach of Fiduciary Duty, Corporate Veil Piercing, Unjust

Enrichment, Quantum Meruit, and Money Had and Received and for an Accounting.

                               The Rule 11 Settlement Agreement

       32.     On or about August 5, 2014, while in the midst of taking the Court Ordered

depositions of the Defendants at the offices of Hawash Meade Gaston Neese & Cicack, LLP,

located at 2118 Smith Street, Houston, Harris County, Texas 77002, the parties entered into a

settlement negotiation and on August 5, 2014, entered into a Rule 11 Settlement Agreement on

the record. On August 6, 2014, the Defendants filed the Rule 11 Agreement with the Court.

       33.     The key elements of the agreement were:

               A. Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse was to

               pay to Cabrera Brothers II, LP, the amount of $900,000.00.            The terms of

               payment were $60,000.00 was to be paid upon completion of the paperwork

               formalizing the settlement and the remainder to be paid monthly over 5 years at

               6.7% interest. The initial payment under the note was to be due on October 1,

               2014;

               B. The Defendants further agreed to enter into “standard bank-type

               documentation” for the note to include a “note or promissory note, a deed of trust,




                                                  7
Exhibit Q                                                                              App. 106
                appropriate UC-1s to the extent Plaintiff determine it’s necessary, an assignment

                of the lease and any assets related to the restaurant;

                C. Time would be of essence in the agreements, and there would no cure time for

                any default;

                D. In the case of default, there was to be a $10.00 paid up license fee for use of

                the name of the restaurant limited to that location; and,

                E. The individual Defendants would not be liable under the note.

                Plaintiffs ask that the Court take judicial notice of the Transcript of the Rule 11

        Settlement Statement filed in this cause by the Defendants on August 6, 2014.

        34.     In August and September of 2014, Plaintiffs prepared and forwarded documents

to the Defendants for review and suggestion. These documents included a formal settlement

agreement which included the release of the individual Defendants, a promissory note, a UCC-1

listing as collateral for the note the assets of the restaurant; an assignment of interest in the lease,

all as required by the Rule 11 Agreement.

        35.     The Defendants made a number of suggestions to change these documents, most

of which were then included in the documents. Not all of Defendants changes were accepted,

most notably Plaintiffs refused to accept a venue selection clause in the documents requiring

venue of any action based on a breach of the agreement in Collin County, Texas.

        36.     Defendants have and continue to refuse to execute the settlement agreement or the

note and security documents as required by the Rule 11 Agreement.

        37.     On or about October 1, 2014, the Defendants did make the $60,000.00 down

payment and the first monthly payment under the proposed terms of the note. And, have made

the monthly payments through the January 1, 2015 payment as of the time of this filing.




                                                   8
Exhibit Q                                                                                  App. 107
          38.   On or about October 9, 2014, Plaintiffs notified the Defendants that they were in

default of the settlement agreement absent the execution of the settlement agreement, the note,

the deed of trust and the appropriate security documents.

          39.   On or about October 10, 2014, Plaintiffs again notified the Defendants of the

default, ask for additional complaints about the documents as provided and made an offer to

change the documents to address the lone identified bone of contention (venue).

          40.   To date, Defendants have not responded to this request.

                                           Causes of Action

I.        Breach of Contract

          41.   The Defendants have breached the Rule 11 Agreement by failing to execute the

formal settlement agreement, the promissory note and the appropriate security documents as set

forth in the Rule 11 Agreement. By so doing, the Defendants are denying the Plaintiffs the

protection agreed to in case of default under payments of the amount agreed to.

                                           Relief Requested

          42.   The plaintiffs seek judgment jointly and severally against all Defendants for

actual damages in the amount of $900,000.00 as agreed to under the Rule 11 agreement with

credit to be given for the amounts paid.

          43.   The plaintiffs seek their attorney’s fees and costs incurred in prosecuting these

claims.

          44.   The plaintiffs seek pre and post judgment interest and the maximum rate allowed

by law.

          45.   The plaintiffs seek all other relief, at law or in equity, to which the plaintiffs may

be entitled.




                                                  9
Exhibit Q                                                                                App. 108
                 Respectfully Submitted,

                 Stephens & Domnitz, PLLC

                 /s/ Kelly D. Stephens
                 Kelly D. Stephens
                 State Bar No. 19158300
                 P.O. Box 79734
                 2118 Smith Street
                 Houston, Texas 77279-9734
                 281-394-3287 (phone)
                 832-476-5460 (fax)
                 kstephens@stephensdomnitz.com

                 Hawash Meade Gaston
                 Neese & Cicack LLP

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

                 Cox Smith Matthews Incorporated

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

                 Attorneys for Plaintiffs




            10
Exhibit Q                                   App. 109
                                    Certificate of Service

       A true and correct copy of the foregoing has been served on all counsel of record via ECF
on January 21, 2014.

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

                                                             /s/ Kelly D Stephens
                                                             Kelly D. Stephens




                                              11
Exhibit Q                                                                           App. 110
                                                                                                    2/20/2015 5:39:13 PM
                                                                               Chris Daniel - District Clerk Harris County
                                                                                                   Envelope No. 4238956
                                                                                                 By: JIMMY RODRIGUEZ
                                                                                             Filed: 2/20/2015 5:39:13 PM

                                      Cause No. 2014-10896

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

 v.                                                           Harris County, Texas

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


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

       The Court ordered Defendants to produce certain documents by August 1, 2014. As of the

filing hereof, Defendants have still not complied with that order. In light of Defendants’ long

history of egregious conduct in this case, Plaintiffs ask that the Court sanction Defendants until

they comply with the Court’s order.

                                          Background

       Defendants have been in contempt of the Court’s order for over 200 days. Unfortunately,

given the history of this case, this is not a surprising development. Because this matter has not

been before the Court for some time, Plaintiffs offer the following timeline to remind the Court of

Defendants’ longstanding pattern of ignoring the law and the Court’s orders:

April 14, 2014:    Plaintiffs propound requests for production (the “Discovery Request”) seeking
                   certain financial documents (the “Financial Documents”). See Exhibit 1,
                   Discovery Requests.

April 21, 2014:    Plaintiffs serve Hal Holtman—Defendants’ accountant until March 2014—with
                   a deposition upon written questions and subpoena duces tecum (the “Holtman
                   Subpoena”). See Exhibit 2, Holtman Subpoena. This Holtman Subpoena was
                   signed by Plaintiffs’ attorney Jeremy Masten. See id. at 1.




Exhibit R                                                                                 App. 111
April 22, 2014:   Defendants instruct Holtman not to comply with the Holtman Subpoena.
                  Exhibit 3, Letter from N. Mosser to H. Holtman.

April 22, 2014:   In a separate letter, Defendants instruct Holtman to destroy “all copies and
                  backups” of all documents related to Defendants. Exhibit 4, Letter from N.
                  Mosser to H. Holtman.

May 10, 2014:     Defendants (1) acknowledge that J. Masten signed the Holtman Subpoena and
                  (2) allege that the Holtman subpoena is invalid because it was not signed.
                  Exhibit 5, Defendants’ Response to Plaintiffs’ Motion to Compel and for
                  Sanctions at ¶¶ 20–21.

May 12, 2014:     The Court finds that “Defendants’ counsel has abused the discovery process in
                  resisting discovery” and overrules Defendants’ objections to the Holtman
                  Subpoena. Exhibit 6, Order on Plaintiffs’ Emergency Motion to Compel and
                  for Sanctions.

May 14, 2014:     Defendants respond to the Discovery Requests with a litany of improper
                  objections, including non-existent privileges and defenses available only to the
                  federal government and banks, respectively. See Exhibit 7, Plaintiffs’ Third
                  Motion to Compel at ¶¶ 20–25.

May 14, 2014:     Plaintiffs serve Mike Verucchi—the accounts Defendants hired to replace
                  Holtman—with a deposition upon written questions and subpoena duces tecum
                  (the “Verucchi Subpoena”). See Exhibit 8, Verucchi Subpoena. This Verucchi
                  Subpoena required Verucchi’s custodian of records to produce certain
                  documents “at the office of the custodian.” See id. at 2.

June 13, 2014:    Defendants move to quash the Verucchi Subpoena on the grounds that the
                  command to produce documents “at the office of the custodian” required
                  production more than 150 miles from the office of the custodian. Exhibit 9,
                  Defendants’ Motion to Quash at ¶¶ 9–13.

June 23, 2014:    The Court overrules Defendants’ objections to the Discovery Requests and
                  orders production of the Financial Documents. Exhibit 10, Hearing Transcript
                  at 23:2–4. While discussing the issue with the Court, Defendants acknowledge
                  that Defendants possessed responsive documents from after March 2014 which
                  were not produced by Holtman. Id. at 23:5–7.

June 23, 2014:    Plaintiffs provide Defendants with a link from which Defendants can download
                  the documents received from Holtman (the “Holtman Documents’). See Exhibit
                  11, Letter from S. Haren to J. Mosser. Plaintiffs request that Defendants
                  produce the Financial Documents within ten days. Id. Defendants do not
                  respond to this letter.

July 10, 2014:    Plaintiffs again request production of the Financial Documents. Exhibit 12,
                  Letter from S. Haren to J. Mosser.



                                               2
Exhibit R                                                                             App. 112
July 11, 2014:         Defendants respond that they did not receive the June 23, 2014 letter. Exhibit
                       13, Letter from N. Mosser to S. Haren. Defendants do not state whether they
                       will comply with the Court’s June 23, 2014 order to produce the Financial
                       Documents. Id. Defendants do, however, offer to “fax the 7000 pages back to
                       you that you subpoenaed from Mr. Holtman.” Id.

July 14, 2014:         Defendants serve “supplemental Discovery Responses.” See Exhibit 14, Letter
                       from N. Mosser to K. Stephens. The 7,235 page production consists entirely of
                       the Holtman Documents Plaintiffs provided to Defendants, including the Bates
                       numbering applied by Plaintiffs’ vendor.1 Id.

July 15, 2014:         Defendants claim that the Court’s statement “I’m going to overrule your
                       objections and tell you to produce it if it’s available to you” did not actually
                       overrule Defendants’ objections and did not require production of the Financial
                       Documents. Compare Exhibit 10, Hearing Transcript at 23:2–4 and Exhibit 15,
                       Letter from N. Mosser to K. Stephens. Defendants also acknowledge that their
                       July 14, 2014 “production” did not include any new documents. Id.

July 28, 2014:         The Court overrules Defendants’ objections to the Verucchi Subpoena. Exhibit
                       16, Order Denying Defendants’ Motion to Quash. In this order, the Court found
                       that “Defendants filed the [motion to quash] without adequately considering the
                       contents of [the Verucchi Subpoena]” and that “Defendants refused to withdraw
                       the [motion to quash] once the relevant contents were pointed out.” Id. The
                       Court further found “that the Defendants have advanced frivolous arguments
                       without basis in fact or law in support of the [motion quash]” and that “this
                       misconduct is part of a larger pattern of improper objections, motions to quash,
                       and invocations of privilege.” Id.

July 28, 2014:         The Court orders Defendants to comply with the prior order compelling
                       production of the Financial Documents. Exhibit 17, Order on Plaintiffs’ Third
                       Motion to Compel. Such documents “must be produced at Plaintiffs’ attorneys’
                       office by Aug[ust] 1, 2014 at 5:00 p.m.”2 Id. The Court cautioned that “failure
                       to comply with this Order may result in further imposition of sanctions or a
                       holding of contempt, punishable by fine or imprisonment or both.” Id.

August 1, 2014:        Defendants serve a letter at 4:17 p.m. stating that they had been unable to fax
                       their document production to Plaintiffs’ counsel. Exhibit 18, Letter from N.
                       Mosser to S. Haren.



1
 Given Defendants’ claim not to have received the June 23, 2014 letter containing the link to download the Holtman
Documents, it is unclear how Defendants obtained the documents for their supplemental production.
2
  The Court emphasized that Defendants were to ensure that these documents were received in Plaintiffs’ office before
the deadline. After an objection by Defendants, the Court specified that this service requirement was stricter than that
contemplated by Rule 21a. This requirement was necessary because Plaintiffs would be taking Defendants’
depositions on August 4–5 and needed the Financial Documents in order to prepare for those depositions.



                                                           3
Exhibit R                                                                                                App. 113
August 1, 2014:    Plaintiffs responded at 4:48 p.m. with an alternative fax number and offering to
                   help Defendants to serve the documents electronically. Exhibit 19, Email from
                   S. Haren to J. Mosser. Defendants do not respond to this offer.

       In what should have been a boon to the Court’s docket, the parties met at Plaintiffs’

counsel’s office in Houston, Texas and entered into a settlement agreement on the record to dispose

of this case on August 5, 2014. See Exhibit 20, Rule 11 Transcript. Unfortunately for all involved,

the case came back to life when Defendants refused to abide by the terms of that settlement

agreement. Accordingly, Plaintiffs amended their petition to include claims only for breach of the

settlement agreement.

                                           Discussion

       Defendants were served with the requests to produce the Financial Documents over 300

days ago. The Court overruled Defendants’ objections and ordered production of the Financial

Documents over 240 days ago. The Court ordered Defendants’ to comply with its prior order and

produce the Financial Documents over 200 days ago. Defendants still have not produced the

Financial Documents.

       Plaintiffs expect Defendants to argue that the Financial Documents are not relevant to

Plaintiffs’ claims. This argument is misplaced on two levels. First, Defendants are obligated under

the settlement agreement to provide, inter alia, (1) payments over time and (2) certain security

interests until those payments are made. Given Defendants’ long history of delay, bad faith

arguments, and dishonesty, Plaintiffs require information from the Financial Documents to assess

Defendants’ compliance with their settlement obligations.

       Second, Defendants still seek to transfer venue from Harris County. But instead of drafting

a new motion to transfer which addresses Plaintiffs’ current claims, Defendants merely set their

July 1, 2014 Motion to Transfer Venue for an oral hearing. That motion to transfer was filed before

the settlement agreement was made and only addresses claims which are no longer asserted in this


                                                4
Exhibit R                                                                              App. 114
action. Although Plaintiffs believe that such claims are wholly irrelevant to the issue of venue,

Defendants apparently disagree. Because Defendants seek to litigate unasserted claims, Plaintiffs

must be prepared to respond. As such, information concerning Plaintiffs’ prior claims is relevant

to respond to Defendants’ frivolous motion to transfer arguments.

                                           Request for Sanctions

        Defendants have completely ignored their duties as attorneys to act in good faith and their

duties as citizens to comply with the Court’s orders. This has included, inter alia:

            ordering a witness to destroy documents responsive to a subpoena;

            advancing bizarre arguments that a signed subpoena was not signed or that Dallas was
             not within 150 miles of Dallas;

            acknowledging to the Court that the Holtman Documents did not contain all responsive
             Financial Documents but later claiming to have complied with the Court’s order by
             producing only the Holtman documents;

            refusing to comply with—and even denying the enforceability of—the Court’s original
             order compelling production of the Financial Documents;

            refusing to comply with the Court’s order to have the Financial Documents produced
             in Plaintiffs’ counsel’s office by August 1, 2014; and

            refusing to produce the Financial Documents at all.

        The Court has already found that “Defendants’ counsel has abused the discovery process,”

“advanced frivolous arguments without basis in fact or law in support,” and engaged in “a larger

pattern of improper objections, motions to quash, and invocations of privilege.”3 In light of this,


3
 Sadly, Defendants’ counsel’s antics have not been confined to this case. In Jabary, for example, James Mosser was
given the following “‘breakdown of the costs’ for the clerk’s record”:

        Clerk’s Record: 8517 pages @ $1.50 per page totaling: $12.775.90

        Paper copy of Record: 8517 pages @ $.25 per page totaling: $2.129.25

        And/or CD copy of Record: $20.00.

Jabary v. City of Allen, No. 05-12-01332-CV, 2013 WL 1803739, at *1 (Tex. App.—Dallas Apr. 29, 2013, no pet.
h.). Although this “breakdown” clearly showed that preparation of the record would cost $1.50 per page and a CD


                                                        5
Exhibit R                                                                                           App. 115
the Court’s final order to produce the Financial Documents cautioned Defendants that “failure to

comply with this Order may result in further imposition of sanctions or a holding of contempt,

punishable by fine or imprisonment or both.” Unfortunately, even this warning was not enough to

ensure compliance with the Court’s order.

                                                     Conclusion

         The Court has given Defendants warning after warning and the Defendants have steadfastly

refused to comply with the Texas Rules of Civil Procedure or the Court’s explicit orders. Plaintiffs

believe that another warning will only reinforce this behavior and encourage Defendants to turn

this trial into a circus. Plaintiffs pray that the Court sanction Defendants $500 for every day

between August 1, 2014 and the date on which Defendants finally produce the Financial

Documents. Plaintiffs further pray that the Court grant them all other relief to which they are

entitled.




copy of that record would cost an additional $20.00, Mosser demanded that (1) the clerk prepare the entire record for
only the $20.00 CD fee and (2) the court award him his attorneys’ fees in pursuing his demand. See id. Mosser stood
by his absurd demand and refused to pay for the clerk’s record to be prepared. Id. As a result of his stubbornness and
refusal to accept the plain meaning of a document, Mosser’s client’s appeal was dismissed. Id. at *1–2. See also In re
Pendragon Transp. LLC, 423 S.W.3d 537, 539–40 (Tex. App.—Dallas 2014, no pet. h.) (upholding appointment of a
discovery master due to Mosser’s egregious and disruptive conduct in depositions taken at the Courthouse before the
trial judge); In re Mosser Law PLLC, No. 05-13-00906, 2013 WL 3718076, at *1 (Tex. App.—Dallas 2013, no pet.
h.) (denying mandamus for Mosser’s claim that the trial court lacked the power to order him to produce documents).

These cases as well as Mosser’s Motion to Require Clerk to File Clerk’s Record in the Jabary case (asking whether
Mosser’s client “should be punished because of the District Clerk’s lack of understanding and poor use of English
grammar?”) and brief in In re Mosser Law (stating that the trial court lacked jurisdiction to order an attorney to produce
a document because “James C. Mosser is not a party to the underlying litigation and has never been served with
citation or petition and has not waived service”) are attached hereto as Exhibits 21–24.



                                                            6
Exhibit R                                                                                                  App. 116
                Respectfully submitted,


                Stephens & Domnitz, PLLC

                /s/ Kelly D. Stephens
                Kelly D. Stephens
                State Bar No. 19158300
                P.O. Box 79734
                2118 Smith Street
                Houston, Texas 77279-9734
                281-394-3287 (phone)
                832-476-5460 (fax)
                kstephens@stephensdomnitz.com

                Hawash Meade Gaston
                Neese & Cicack LLP

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

                Cox Smith Matthews Incorporated

                David Kinder
                State Bar No. 11432550
                112 East Pecan Street, Suite 1800
                San Antonio, Texas 78205
                210-554-4400 (phone)
                210-226-8395 (fax)
                dkinder@coxsmith.com

                Attorneys for Plaintiffs




            7
Exhibit R                                  App. 117
                                   Certificate of Conference

       As discussed above, Plaintiffs have offered to assist Defendants in producing the Financial

Documents. See Exhibit 19, Email from S. Haren to J. Mosser. Defendants did not respond to this

offer. On February 20, 2015, Counsel for Plaintiffs faxed a letter to Defendants demanding

production of documents responsive to “requests for production 1, 2, 3, 4, 5, 7, and 8” of the

“discovery requests [served] on Defendant 8650 Frisco, LLC on April 14, 2014.” Exhibit 25, Letter

from S. Haren to N. Mosser. Plaintiffs reminded Defendants that the Court ordered production of

these documents on June 23 and July 28. See id.

       Defendants responded that “we have complied with all orders of this court and would need

more specifics as to what you are referring. This information would be necessary to investigate

what documents you contend you did not receive and where that error may lie.” Exhibit 26, Letter

from N. Mosser to S. Haren. Even now, Defendants continue to pretend that they are not bound by

the Court’s orders and to misrepresent what documents they have produced.

                                                              /s/ Samuel B. Haren
                                                              Samuel B. Haren



                                     Certificate of Service

        A true and correct copy of the foregoing has been served on all counsel of record via
electronic service on February 20, 2015.

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

                                                              /s/ Samuel B. Haren
                                                              Samuel B. Haren




                                                8
Exhibit R                                                                             App. 118
                               CAUSE NO. 2014-01089

LOS CUCOS MEXICAN CAFE                     §      IN THE DISTRICT COURT OF
VIII, INC.; LOS CUCOS MEXICAN              §
CAFE IV, INC.; MANUEL                      §
CABRERA; and SERGIO                        §
CABRERA,                                   §
             Plaintiffs                    §
                                           §
v.                                         §
                                           §      HARRIS COUNTY, TEXAS
8650 FRISCO, LLC D/B/A ESTILO              §
GAUCHO BRAZILIAN                           §
STEAKHOUSE; MANDONA, LLC;                  §
GALOVELHO, LLC; BAHTCHE,                   §
LLC; CLAUDIO NUNES; and                    §
DAVID JEIEL RODRIGUES,                     §
           Defendants                      §      133rd JUDICIAL DISTRICT


     PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS TO 8650 FRISCO, LLC
              D/B/A ESTILO GAUCHO BRAZILIAN STEAKHOUSE

TO:    Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse, by and
       through its counsel of record, Nicholas D. Mosser and Benjamin Casey, Mosser
       Law PLLC, 17110 Dallas Parkway, Suite 290, Dallas, Texas 75248.

       Pursuant to the Texas Rules of Civil Procedure, Plaintiffs Los Cucos Mexican

Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera

(“Plaintiffs”) serve their First Set of Requests for Admissions, Requests for Production

and First Set of Interrogatories on Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho

Brazilian Steakhouse (“Defendant”) as authorized by Rules 196 and 198, TEX. R. CIV. P.

Defendant must specifically admit or deny and produce all requested documents in its

possession, custody, or control (as they are kept in the ordinary course of business or

organized and labeled to correspond with categories in each request) for inspection and




Exhibit R
                                    Exhibit 1                                App. 119
copying, and not more than 30 days after service, at the office of HAWASH MEADE

GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.

                                            Respectfully submitted,

                                            STEPHENS & DOMNITZ, PLLC

                                            /s/ Kelly D. Stephens
                                            Kelly D. Stephens
                                            SBN: 19158300
                                            P.O. Box 79734
                                            Houston, Texas 77279-9734
                                            Tel: 281-394-3287
                                            Fax: 832-476-5460
                                            kstephens@stephensdomnitz.com


                                            HAWASH MEADE GASTON NEESE
                                            & CICACK LLP


                                             /s/ Andrew K. Meade
                                            Andrew K. Meade
                                            State Bar No. 24032854
                                            Jeremy M. Masten
                                            State Bar No. 24083454
                                            2118 Smith Street
                                            Houston, Texas 77002
                                            713-658-9006 (Direct & Fax)
                                            ameade@hmgllp.com
                                            jmasten@hmgllp.com

                                            ATTORNEYS FOR PLAINTIFFS
                                            LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
                                            LOS CUCOS MEXICAN CAFÉ IV, Inc.,
                                            MANUEL CABRERA, and
                                            SERGIO CABRERA




                                            2

Exhibit R                                                                 App. 120
                              CERTIFICATE OF SERVICE

       A true and correct copy of the foregoing document has been served to the
following pursuant to the Texas Rules of Civil Procedure on April 14, 2014.

            Via Fax: 972-267-5072 and
            email: courtdocuments@mosserlaw.com
            James C. Mosser
            Nicholas D. Mosser
            Mosser Law PLLC
            17110 Dallas Pkwy, Suite 290
            Dallas, TX 75248


                                     /s/ Andrew K. Meade
                                     Andrew K. Meade




                                           3

Exhibit R                                                            App. 121
                            DEFINITIONS AND INSTRUCTIONS

        1.     As used throughout this request (including these definitions and
instructions), the term “documents” means each and every document (as defined in
Rule 34, FED. R. CIV. P.), all electronically stored information, and each and every
tangible thing, including but not limited to both electronic and hard copy documents, in
the possession, custody, or control of Plaintiff, whether a copy, draft, or original,
wherever located, with all exhibits, attachments, and schedules, including but not
limited to the following: correspondence and drafts of correspondence; notes or
summaries of conversations; income tax returns, forms, schedules, or worksheets; inter-
and intra-office memoranda; reports; comments; worksheets; plans; minutes; notes;
notices or notifications; findings; conclusions; memoranda; contracts or agreements of
any kind; brochures, circulars, bulletins, advertisements, sales catalogs or literature;
packages, packaging, and package inserts; notes, records, summaries, or other reports of
conferences, meetings, visits, surveys, discussions, inspections, examinations, reviews
or telephone conversations; purchase orders, quotations, estimates, invoices, bids,
receipts, or acknowledgements, including the reverse sides of all such documents with
printing, typing or writing on the reverse sides; bills of lading and other shipping
documents; credit agreements or credit memoranda; contract or lease offers or
proposals; executed or proposed agreements, contracts, franchise agreements, licenses,
leases, insurance policies and riders, or options; proposals; diaries; desk calendars,
appointment books, or telephone call books; property valuations or appraisals, and
their updates; affidavits, depositions, transcripts and statements, or summaries or
excerpts thereof; stenographic notes; books and records; financial data; stock certificates
and evidence of stock ownership; newspaper or magazine articles; pamphlets, books,
texts, notebooks, magazines, manuals, journals, and publications; notepads, tabulations,
data compilations, calculations, or computations; schedules; drafts; charts and maps;
forecasts and projections; drawings, designs, plans, specifications, graphs, blueprints,
sketches, or diagrams; orders; pleadings and court filings; checks and check stubs (front
and back); records or transcripts of statements, depositions, conversations, meetings,
discussions, conferences or interviews, whether in person or by telephone or by other
means; workpapers; printouts or other stored information from computers or other
information retention or processing systems; e-mail or electronic mail or
communications, in whatever form; instant messages in whatever form; photographic
matter or sound reproduction matter however produced, reproduced or stored;
government reports, regulations, filings or orders; any other written, printed, typed,
taped, recorded, or graphic matters; any exhibits, attachments, or schedules to or with
the foregoing; any drafts of the foregoing; and any copies or duplicates of the foregoing
that are different because of marginal or handwritten notations, or because of any
markings thereon or alterations thereof.

       2.    All electronically stored information should be produced as an electronic
copy, preserving all metadata.

                                                4

Exhibit R                                                                       App. 122
       3.    Throughout this request (including these definitions and instructions), the
term “communications” means any and all of the following: writings, oral
communications, electronic communications (including emails, text messages, and
instant messages), wire communications, conversations by telephone, meetings, and
any contact, oral or written, formal or informal, at any time or place, and under any
circumstance whatsoever, in which information of any nature was transmitted or
exchanged in any form or by any medium.

       4.     Throughout this request (including these definitions and instructions), the
phrases “relating to,” “relates to,” “related to,” "regarding," and “in relation to” mean
constituting or evidencing, and directly or indirectly mentioning, describing, referring
to, pertaining to, being connected with, reflecting upon, or concerning the stated subject
matter.

      5.    Throughout this request (including these definitions and instructions), the
words “any” and “all” shall be considered to include “each” and “each and every.”

       6.     Throughout this request (including these definitions and instructions), the
singular of any word shall include the plural, and the plural of any word shall include
the singular. The masculine form shall include the feminine and neutral forms. The
terms “and” and “or” shall mean “and/or” inclusively.

       7.     Throughout this request (including these definitions and instructions), the
terms “you” and “your” refer to the party responding to the request, as well as his, her,
or its present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on behalf of or
under the control of the responding party.

       8.      Throughout this request (including these definitions and instructions),
“Defendant” and “Frisco” mean 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian
Steakhouse, a named defendant in this matter. The term “Defendant” or “Frisco” also
includes Defendant’s present and former agents, employees, counselors, consultants,
representatives, attorneys, and any other person or entity acting or purporting to act on
its behalf or under its control.

       9.     Throughout this request (including these definitions and instructions), the
term “Plaintiff” or “Plaintiffs” means any named Plaintiff in this matter, including their
present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on its behalf or
under their or its control.

      10.   Throughout this request (including these definitions and instructions),
“Los Cucos” means Los Cucos Mexican Café VIII, Inc. and Los Cucos Mexican Café IV,

                                               5

Exhibit R                                                                      App. 123
Inc., named defendants in this matter and includes any present and former agents,
employees, counselors, consultants, affiliates, subsidiaries, representatives, attorneys,
and/or any other person or entity acting or purporting to act on the behalf or under the
control of Los Cucos.

       11.   If you contend that any document requested here need not be produced
under a privilege or other protection against disclosure, provide an itemized log of the
document(s) being withheld from production. In the log, specify the date of each such
document, its author(s), all recipient(s), and any person(s) copied on the document, the
paragraph of this request to which the document responds, and a brief description of
the document’s contents that supplies enough detail to assess the applicability of the
privilege or protection being claimed. In addition, please specify the privilege or
protection upon which you rely as their basis for withholding the document(s) from
production.

      12.    If you intend to produce any electronic document or information in
response to this request, please contact counsel for Los Cucos to discuss the form in
which such electronic document or information will be produced.

      13.   If you have any questions about this request, please contact counsel for
Los Cucos promptly for clarification.

       14.     Unless otherwise stated, the time period covered by this request is January
1, 2010 to the present.

      15.    You are reminded of your duty under Rule 193.5, Tex. R. Civ. P., to amend
or supplement any response that was incomplete or incorrect when made or that,
although correct and complete when made, is no longer complete and correct.




                                               6

Exhibit R                                                                      App. 124
                               REQUESTS FOR ADMISSIONS

Admit or deny the following:
      Admission No. 1. 8650 Frisco, LLC received money from Los Cucos Mexican
Café VIII, LLC.
      Admission No. 2. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as a loan.

      Admission No. 3. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as an investment.

      Admission No. 4. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe VIII, LLC.

       Admission No. 5. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe VIII, LLC.

       Admission No. 6. 8650 Frisco, LLC received money from Los Cucos Mexican
Cafe IV, LLC.

      Admission No. 7. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe IV, LLC as a loan.

      Admission No. 8. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VI, LLC as an investment.

      Admission No. 9. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe IV, LLC.

       Admission No. 10. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe IV, LLC.

      Admission No. 11. 8650 Frisco, LLC received money from Manuel Cabrera.

      Admission No. 12. 8650 Frisco, LLC intended to treat the money it received
from Manuel Cabrera as a loan.

       Admission No. 13. Admit that 8650 Frisco, LLC intended to treat the money it
received from Manuel Cabrera as an investment.

      Admission No. 14. 8650 Frisco, LLC intended to repay the money it received
from Manuel Cabrera.

                                            7

Exhibit R                                                                App. 125
       Admission No. 15. 8650 Frisco, LLC did not intend to repay the money it
received from Manuel Cabrera.

      Admission No. 16. 8650 Frisco, LLC received money from Sergio Cabrera.

      Admission No. 17. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as a loan.

      Admission No. 18. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as an investment.

      Admission No. 19. 8650 Frisco, LLC intended to repay the money it received
from Sergio Cabrera.

       Admission No. 20. 8650 Frisco, LLC did not intend to repay the money it
received from Sergio Cabrera.

      Admission No. 21. 8650 Frisco, LLC received equipment from Los Cucos
Mexican Cafe IV, LLC.

       Admission No. 22. 8650 Frisco, LLC received furniture from Los Cucos Mexican
Cafe IV, LLC.

      Admission No. 23. 8650 Frisco, LLC is currently using equipment it received
from Los Cucos Mexican Cafe IV, LLC.

      Admission No. 24. 8650 Frisco, LLC is currently using furniture it received from
Los Cucos Mexican Cafe IV, LLC.

      Admission No. 25. 8650 Frisco, LLC is currently using equipment paid for by
from Los Cucos Mexican Cafe IV, LLC.

      Admission No. 26. 8650 Frisco, LLC is currently using furniture paid for by Los
Cucos Mexican Cafe IV, LLC.

      Admission No. 27. 8650 Frisco, LLC did not pay Los Cucos Mexican Cafe IV,
LLC for any equipment or furniture.

      Admission No. 28. Los Cucos Mexican Cafe IV, LLC did not gift furniture to
8650 Frisco, LLC.



                                             8

Exhibit R                                                                  App. 126
      Admission No. 29. Los Cucos Mexican Cafe VIII, LLC did not gift money to
8650 Frisco, LLC.

       Admission No. 30. Admit that Manuel Cabrera did not gift money to 8650
Frisco, LLC.

      Admission No. 31. Sergio Cabrera did not gift money to 8650 Frisco, LLC.

      Admission No. 32. 8650 Frisco, LLC is currently operating at a net profit.

      Admission No. 33. 8650 Frisco, LLC is currently operating at a new loss.

       Admission No. 34. 8650 Frisco, LLC is currently using the name Estilo Goucho
Brazilian Steakhouse.

       Admission No. 35. 8650 Frisco, LLC is has been using the name Estilo Goucho
Brazilian Steakhouse since February, 2013.

      Admission No. 36. 8650 Frisco, LLC has assigned, in writing, its rights to the
mark Estilo Gaucho Bazilian Steakhouse to Bahtche, LLC.

      Admission No. 37. 8650 Frisco, LLC has not assigned, in writing, its rights to the
mark Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.

      Admission No. 38. 8650 Frisco, LLC has received compensation from Bahtche,
LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.

      Admission No. 39. 8650 Frisco, LLC has not received compensation from
Bahtche, LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.

       Admission No. 40. Estilo Gaucho Brazilian Steakhouse is a trade name of 8650
Frisco, LLC.

      Admission No. 41. 8650 Frisco, LLC does business as Estilo Gaucho Brazilian
Steakhouse.




                                              9

Exhibit R                                                                    App. 127
                                Requests for Production
       Request No. 1. Produce all documents and records provided to or received from
8650 Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA,
Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650
Frisco, LLC.

       Request No. 2. Produce all documents and records in the possession of 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.

       Request No. 3. Produce all financial records of 8650 Frisco, LLC.

       Request No. 4. Produce all accounting records of 8650 Frisco, LLC.

       Request No. 5. Produce all bank statements of 8650 Frisco, LLC.

       Request No. 6. Produce all point of sale data and reports related to 8650 Frisco,
LLC.

       Request No. 7. Produce all tax records (including all 1099 forms, W-2 forms, and
K-1 forms) related to 8650 Frisco, LLC.

       Request No. 8. Produce all communications and correspondence with 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.

       Request No. 9. Produce all payroll records for 8650 Frisco, LLC.

      Request No. 10. Produce all records of money received from any Plaintiff in this
lawsuit.

        Request No. 11. Produce all records of money paid or distributed to any Plaintiff
in this lawsuit.

       Request No. 12. Produce all correspondence and communications with each
Plaintiff in this lawsuit.

      Request No. 13. Produce all agreements, including all drafts of agreements,
between the Parties, which relate in any way to 8650 Frisco, LLC.



                                              10

Exhibit R                                                                     App. 128
      Request No. 14. Produce all leases and related documents (e.g., guarantees),
which relate to the premises currently occupied by 8650 Frisco, LLC.

       Request No. 15. Produce all records of financial transactions between 8650
Frisco, LLC and Claudio Nunes.

       Request No. 16. Produce all records of financial transactions between 8650
Frisco, LLC and David Jeiel Rodrigues.

      Request No. 17. Produce all corporate records of 8650 Frisco, LLC.

      Request No. 18. Produce quarterly and annual profit and loss statements for
8650 Frisco, LLC from its creation through the present (update quarterly through trial).

       Request No. 19. Produce quarterly and annual balance sheet statements for 8650
Frisco, LLC from its creation through the present (update quarterly through trial).

       Request No. 20. Produce all communications and correspondence related to any
of the Plaintiffs in this lawsuit.

       Request No. 21. Produce all records of cash receipts and cash deposits for 8650
Frisco, LLC.

       Request No. 22. Produce all records, including invoices, for all equipment and
furniture purchased for use by 8650 Frisco, LLC.

       Request No. 23. Produce all documents which reflect or relate to the application
to the United States Patent and Trademark office for the mark Estilo GAucho Brazilian
Steakhouse.

     Request No. 24. Produce the assignment of ownership rights for the mark Estilo
Gaucho Brazilian Steakhouse to Bahtche, LLC.

       Request No. 25. Produce documents reflecting the exchange of compensation by
and between 8650 Frisco, LLC and Bahtche, LLC, related to the mark Estilo Gaucho
Brazilian Steakhouse.




                                              11

Exhibit R                                                                    App. 129
                           FIRST SET OF INTERROGATORIES

      Interrogatory No. 1. Identify and explain in detail the terms upon which Los
Cucos Mexican Cafe VIII, LLC provided money to 8650 Frisco, LLC.

      Interrogatory No. 2. If you contend that the money provided to 8650 Frisco, LLC
by Los Cucos Mexican Cafe VIII, LLC was a loan, describe in detail the basis of that
contention and terms of the loan.

       Interrogatory No. 3. If you contend that they money provided to 8650 Frisco,
LLC by Los Cucos Mexican Cafe VIII, LLC was an investment, describe in detail the
basis of that contention and terms of the investment.

       Interrogatory No. 4. Identify and describe in detail the equipment and
furnishings provided to 8650 Frisco, LLC by Los Cucos Mexican Cafe, IV.

       Interrogatory No. 5. If you contend that the parties had an agreement as to 8650
Frisco, LLC’s use of the equipment and furniture provided to 8650 Frisco, LLC by Los
Cucos Mexican Cafe, IV, identify and describe in detail the basis of that contention and
terms of the agreement.

      Interrogatory No. 6. Identify and describe in detail the source, date of purchase,
and cost of all equipment and furnishings used at 8650 Frisco, LLC.

       Interrogatory No. 7. Detail the circumstances and terms under which the mark
Estilo Gaucho Brazilian Steakhouse was transferred to Bahtche, LLC.




                                              12

Exhibit R                                                                    App. 130
                                                            No. 20 14-10896

 LOS CUCOS MEXICAN CAFE VIII, INC., ET AL.                           §          IN THE DlSTRICl' CO URT OF
                                                                     §
                                                                     §
 vs.                                                                 §          HARRIS COUNTY, TEXAS
                                                                     §
 8650 FRISCO, LLC D/8/A ESTJLO GAUCHO                                §
 BRAZ1LIAN STEAKHOUSE, ET AL.                                        §          133rd JUDIC IAL DISTRICT


                                              NOTICE OF INTENTION
                                    TO TAKE DEPOSITION BY WIUTTEN QUESTIONS
To Defendants by and through their attorney of record: Nichohts Mosser
To other party/parties by and through their attorney of record: Kelly D. Stephens

You will please take notice that on May 26. 20 14 at I 0:00 a. m. a deposition by written questions will be taken of the Custodian of
Records for:


Holtmnn & Company, LLC
876 Loop 337, Suite SOl , New Braunfels, TX 78 130


before a Notary Public for           Gulfstream Leg!tl Gt·oup, LLC
                                     1300 TCXIIS St.
                                     llouston, TX 77002
                                     Ph: 713-237-4700 //Fax: 888-559-7431

or its designated agent, which deposition with attached questions may be used in evidence upon the trial of the above-styled and
numbered cause pending in the above-named court. Notice is fUI1her given that request is hereby made as authorized under Rule
200, Texas Rules of Civil Procedure, to the office!' laking this deposition to issue a subpoena duces tecum and cause it to be
served on the witness to produce any and all records as <lescribcd on the attached questions and/or Exhibit(s) and to tum all such
records over to the officer authorized to take th is deposition so that photographic reproductions of the same may be made and
attached to sai<l deposition.

                                                               Mr. Andrew K. Meade
                                                               State B:u· No. 24032854
                                                               Mr. Jeremy M. Masten
                                                               State B:u· No. 24083454
                                                               llawash Meade Gaston Neese & Cicacl< LLP
                                                               2118 Smith Street
                                                               Houston, l'X 77002
                                                               Ph: 713-658-9001 // Fax: 7 LJ-658-9011
                                                               Attorneys for Plain1iffs, Los Cucos Mcxic11n Cn fe Vlll, In c., et al.

I hereby ce11ify that a true and correct copy of thl! foregoing instrument has been forwarded to all Counsel of Record by hand-delivery,
facsimile, and/or certified mail (return receipt requested) on this dny.


Dated:   -~--l-fl-'d.:;. .\_;_4(_l=--'~
                                      -\                       Signed~-L-'. . ~: . . ~
                                                                          ~
                                                                                     . . :.--;.-+&1
                                                                                            0 ---..-~
                                                                                                    : __¢-
                                                                                                        ____.


Order No. 5091
 Exhibit R
                                                       Exhibit 2                                                 App. 131
            DEPOSITION SlJ BPOENA TO TESTIFY OR PRODUCE DOCITMENTS OR T HINGS

THE STATE OF TEXAS
To any Sheriff or Constable of the State of Texas or other person authorized to serve subpoenas under Rule 176 of the Texas Rules of
Civil Procedure - GREETINGS •
You are hereby commanded to subpoena and summon the Custodian of Records for:

Holtman & Company, LLC
876 Loop 337, S uite 501 , New Bra unfels, TX 78 130

to be and appear before a Notary Public of my designation for Gulfstr eo m Legal G r o up, LLC, 1300 Texas St., Hous to n, T X 77002
or its designated agent on May 26. 20 14 at I0:00 a.m. at the office of the custodian, and there under oath to make answers of certain
written questions to be propounded to the witness and to bring and produce for inspection and photocopying

ANY AN D ALL R ECORDS (WHETH E R T YPED, HANDWRITT EN OR C OMPUTER-GEN E RATED)
P E RTAINING TO 8650 FRISCO LLC, including but no t limited to any ty pe of financial r ecords; accounting r ecords;
ba nk s ta tem ents; tax r ecords (including 1099 fo rms, W-2 fo rms a nd K-1 forms); r e ports; leases; guar a nties; reco rds of
trademarks and o ther intellectual property; office notes; correspo ndence; a nd printouts of any type of data stored in
e lectro nic format, including any e-ma il transm ission(s)

then and there to give evidence and there remain from day to day and time to time until discharged according to law at the instance of
the Plaintiff, Los Cucos Mexican Cafe VIII, Inc., et at., represented by Andrew Meade, Attorney of Record, in that certain Cause No.
2014-10896 pending on the docket of the District Court of the 133rd Judicial District of Harris County, Texas.

This Subpoena is issued under and by virtue of Rule 200 and Notice of Deposition Upon Written Questions on file with the above-
named court, Sl) led

LOS CUCOS MEXICA CAFE VIII, INC., ET AL. vs.
8650 FRI CO. LLC 0 /BfA ESTlLO GAUCHO BRAZI LIAN STEAKHOU E, ET AL.

WJ TNESS MY HAND,                        this   .2/sr     dayofApril,2014 .



                                                                       (---~ &~
                    ~,,,,,,,




                ~~~~~.'~i,:;•,.,      MICHAEl R. MillER
               r;~·t\ Notory Public. Slota of Texas
               \~).~.·:..l          My Commtssion Expires
                .,,;:,{.~.:~~~"''    November 08. 2014                 NOTARY PUBLIC~                           L__)
176.8 Enrorccmcnt or Subpoena. (a) Contempt. Failure by any person ''ithout adequate cxcu~c to obey u subpoena served upon thaL1x:rson mn) be
dccmc.:d a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served. and may be
punished by fine or conlinemenL or both.
                                                             OFFICER'         RETU RN
Came to hand this ___ day of _ __ _ _ _, 20__ . and executed this the _ _ day of _ _ _ _ _ _ , 20_ _, in the

following manner. By delivering to the witness-- - - - - - - - - - - - - - - - - · a true copy hereof.
Returned this _ _ _ day of _ _ __ _ _ _ , 20

Order No. 509 1.002                                                                PROCCSS SERVER




         Exhibit R                                                                                                    App. 132
                                                             No. 2014-10896

 LOS CUCOS MEXICAN CAFE VIII, iNC., ET AL.                            §          IN THE DISTIUCT COURT 0~
                                                                      §
                                                                      §
 vs.                                                                  §          HARRIS CO UNTY, TEXAS
                                                                      §
 8650 FRISCO, I.IJC D/8/A ESTILO GAUCHO                               §
 BRAZILIAN TEAKJIOUSE, ET AL.                                         §          133rd JUDICIAL DISTRICT


                        DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS

Custodian of Records for: Holtman & Company, LLC

Type of Records:
ANY AND ALL RECORDS (WHETHER TVI•EO, IIANOWRITTEN OR COMPUTER-GENERATED) PERTAINING
TO 8650 FRISCO LLC, including but not limited to any ty pe of limlllcial records; accounting records; bank statements;
tax records (including 1099 forms, W-2 forms and K-1 forms); repo11s; leases; guaranties; records of trademarks and
other intellectual property; office notes; correspondence; nnd printouts of a ny type of darn stoted in electl·onic format,
including any e-ma il transmission(s)


I.     Please state your fu ll name.
       Answer: _________________________________________________________________________



2.     Please state by whom you are employed and the business address.

       Answer: -------------------------------------------------------------------


3.     What is the title of your position ot· job?

       Answer: _________________________________________________________________________



4.     Have you accepted the subpoena duces tecum accompanying these direct questions?

       Answer: _________________________________________________________________________



5.     Are these memoranda, reports, records, or data compilations out I ined in the subpoena duces tecum in your custody ot· su~ject
       to your control, supervision or direction?

       Answer: ---------------------------------------------------------------------


6.     Arc you able to identify these aforementioned records as the originals or true and correct copies of the originals?
       Answer: _______________________________________________________________________




Order No. 5091.002

 Exhibit R                                                                                                       App. 133
7.   Please hand to the Officer taking this deposition copies of the memoranda, repons, records, or data compilations mentioned in
     Question No. 5. Have you complied? If not, why?

     Answer:
               ----------------------------------------------------------------------------
8.   Are the copies which you have handed to the Officer taking this deposition true and coJt ect copies of such memoranda,
     repo11s, records or data compilations?

     Answer: -------------------------------------------------------------------------------


9.   Were such memoranda, reports, records, or data compi lations kept in the regular course of business of this facility?
     Ans\Yer: _______________________________________________________________________________


10. Was it in the regular course of business ofthis facility for a person with knowledge of the acts, events, conditions, opinions or
    diagnoses recorded to make the reco1·d or to transmit information thereof to be included in such record?

     Answer: -------------------------------------------------------------------------------


II. Were the entl'ies on these records made at or shortly aller the time of the transaction recorded?

     Answer:
               ----------------------------------------------------------------------------
12. Was the method of preparation of these records trustworthy?

     Answer:
               ----------------------------------------------------------------------------


                                                                WITNESS (Custodian of Records)

         Before me, the undersigned authority, on this day personally appeared the witness, known to me to be rhc person whose
name is subscribed to the foregoing instrument in the capacity therein slated, who being first duly sworn, stated upon his/her oath
that the answers ~o the foregoing questions a1•e true and correct. J further certify that the records attached hereto are exact
duplicates of the original records.


         SWOR.!'l TO 1\ND SUBSCRIBED before me this - - - - - day of _ _ _ _ _ _ _ _ __ . 20_ _ _.



                                                                NOTARY PUBLIC

                                                                My Commission Expires: --------------------------




Order No. 509 L.002

Exhibit R                                                                                                     App. 134
~   From:Hidhol as 0. Mosser                        972 287 5072                 04/ 2.212014 14:13         11023 P. 001 / 001




               MOSSER                  LAW PLLC
           !          171 10D AU.ASP.ARKWAY, SUITE 290 • DAlLAS, TEXAS 75248 • 972-733-3223 • FAX: 972-267-5072
           i                                               MOSSI&LAW.COM


                                                          April 22, 2014

            Via Facsimile: (830)625-1498
          . Hal Holtman, CPA ·
            Holtman an.d Company LLC
            876 LOOP 337 BLDG 501
            NEW BRAUNFELS TX 78130

               RE: 8650 Frisco LLC

               Dear Mr. Holtman:

                       We are hereby instructing you not to respond to any document requests from
               los Cucos Mexican Cafe IV, Inc., Los Cucos Mexican Cafe VIII, Inc., Sergio Cabrera,
               Manuel Cabrera, Mr. Stephens, or Mr. Meade. The requests are Improper and have not
               been signed pursuant to the Texas Rules. Furthermore, any responsive document is
               covered by the privilege contained in the Te~as Occupations Code Section 901.457 and
               in your ethical duties ·contained in 22 TAC § 501 .75. You do not have permission to
               release ANY documents to ANY person other than the undersigned. If you wish to
               make any response, it should be that all information is covered by the accountant-client
               privile          u must withhold all responsive documents.·




          Exhibit R
                                                       Exhibit 3                                        App. 135
                         -     ----------~
From:Hi cholas D. Mosser                       972 287 5072                  04/ 22/ 2014 18:53         1027 P. 001 / 001




          MOSSER LAW PLLC
      1         17 11 0 DAI.U.S P ARXWAY, SU1TE290 • DAllAS, TExAs 75248 • 972-733-3223 • FAX: 972-267-5072
      ;                                               MOSSDLAW.COM


                                                    April22,2014

          Via Facsimile: (830)625-1498
          Hal Holtman, CPA
          Holtman and Company LLC.
          876 LOOP 337 BLDG 501.
          NEW BRAUNFELS TX 78130

          RE: 8650 Frisco .LLC

          Dear Mr. Holtman:

          This office represents 8650 Frisco LLC, Please produce ALL DOCUMENTS related to
          8650 Frisco LLC to the undersigned no later than 5:00 pm April 25, 20:14.

          Once you have produced those documents, you are instructed to de~troy all copies and
          backups of that data, as it is confidential and protected by statute.




       Exhibit R                                                                                    App. 136
~   From:Hidhol as 0. Mosser                        972 287 5072                 04/ 2.212014 14:13         11023 P. 001 / 001




               MOSSER                  LAW PLLC
           !          171 10D AU.ASP.ARKWAY, SUITE 290 • DAlLAS, TEXAS 75248 • 972-733-3223 • FAX: 972-267-5072
           i                                               MOSSI&LAW.COM


                                                          April 22, 2014

            Via Facsimile: (830)625-1498
          . Hal Holtman, CPA ·
            Holtman an.d Company LLC
            876 LOOP 337 BLDG 501
            NEW BRAUNFELS TX 78130

               RE: 8650 Frisco LLC

               Dear Mr. Holtman:

                       We are hereby instructing you not to respond to any document requests from
               los Cucos Mexican Cafe IV, Inc., Los Cucos Mexican Cafe VIII, Inc., Sergio Cabrera,
               Manuel Cabrera, Mr. Stephens, or Mr. Meade. The requests are Improper and have not
               been signed pursuant to the Texas Rules. Furthermore, any responsive document is
               covered by the privilege contained in the Te~as Occupations Code Section 901.457 and
               in your ethical duties ·contained in 22 TAC § 501 .75. You do not have permission to
               release ANY documents to ANY person other than the undersigned. If you wish to
               make any response, it should be that all information is covered by the accountant-client
               privile          u must withhold all responsive documents.·




          Exhibit R
                                                       Exhibit 4                                        App. 137
                         -     ----------~
From:Hi cholas D. Mosser                       972 287 5072                  04/ 22/ 2014 18:53         1027 P. 001 / 001




          MOSSER LAW PLLC
      1         17 11 0 DAI.U.S P ARXWAY, SU1TE290 • DAllAS, TExAs 75248 • 972-733-3223 • FAX: 972-267-5072
      ;                                               MOSSDLAW.COM


                                                    April22,2014

          Via Facsimile: (830)625-1498
          Hal Holtman, CPA
          Holtman and Company LLC.
          876 LOOP 337 BLDG 501.
          NEW BRAUNFELS TX 78130

          RE: 8650 Frisco .LLC

          Dear Mr. Holtman:

          This office represents 8650 Frisco LLC, Please produce ALL DOCUMENTS related to
          8650 Frisco LLC to the undersigned no later than 5:00 pm April 25, 20:14.

          Once you have produced those documents, you are instructed to de~troy all copies and
          backups of that data, as it is confidential and protected by statute.




       Exhibit R                                                                                    App. 138
                      CAUSE NO. 2014-10896
LOS CUCOS MEXICAN CAFÉ        § IN THE DISTRICT COURT OF
VIII, INC., LOS CUCOS MEXICAN §
CAFÉ IV, INC., MANUEL         §
CABRERA, and SERGIO           §
CABRERA                       §
PLAINTIFFS,                   §
                              §
V.                            § HARRIS COUNTY, TEXAS
                              §
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN              §
STEAKHOUSE, MANDONA,          §
LLC, GALOVELHO, LLC,          §
BAHTCHE, LLC, CLAUDIO         §
NUNES and DAVID JEIEL         §
RODRIGUES                     §
DEFENDANTS.                   § 133rd JUDICIAL DISTRICT

     DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO COMPEL
                     AND FOR SANCTIONS

     Defendants, 8650 Frisco, LLC, d/b/a Estilo Gaucho Brazilian Steakhouse,

Mandona, LLC, Galovelho, LLC, Bahtche, LLC, Claudio Nunes, and David

Jeiel Rodrigues, file this Response to Plaintiffs' Motion to Compel and for

Sanctions.

                                 INTRODUCTION

1.      Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café

        IV, Inc., Manuel Cabrera, and Sergio Cabrera, sued defendants, 8650

        Frisco, LLC, d/b/a Estilo Gaucho Brazilian Steakhouse, Mandona, LLC,

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                    1 of 20


Exhibit R
                                 Exhibit 5                          App. 139
     Galovelho, LLC, Bahtche, LLC, Claudio Nunes, and David Jeiel

     Rodrigues, for inter alia breach of contract and conversion.

2.   Plaintiffs and their counsel have attempted to needlessly drive up the

     cost of this litigation, by routine failures to follow the Texas Rules of Civil

     Procedure and attempting to gain access to confidential information

     protected by statute in the possession of non parties. In addition

     Plaintiffs counsel has acquired information protected by statute and

     owned by Defendants, specifically financial documents acquired

     unlawfully from Hal Holtman.

3.   Plaintiffs have further used subpoenas to circumvent the appropriate

     discovery process in an effort to obtain more confidential and statutorily

     protected documents rather than issue proper requests for production

     directed at the parties so the parties may give objections and allow the

     court to determine their validity and proper access to these protected

     documents. (Platinffs conduct is no different from directing a subpoena

     to a lawyer representing Defendants to produce documents rather than

     the Defendants themselves. )

4.   Discovery in this suit is governed by a Level 3 discovery-control plan.

     The discovery period will end on February 5, 2015.

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                          2 of 20


Exhibit R                                                                App. 140
5.   This case has not been set for trial.

6.   Defendants are patiently waiting on the transcript from the Temporary

     Injunction hearing, where Plaintiffs testified and perjured themselves in

     order to make venue facts and their affidavits were in fact false, prior to

     setting the motion to transfer venue for hearing. This perjury was

     suborned by Plaintiffs’ attorney.

                                BACKGROUND

7.   On or about March 26, 2014 Defendant 8650 Frisco LLC terminated Hal

     Holtman and Holtman and Company LLC. Mr. Holtman was previously

     employed by 8650 Frisco LLC as a CPA licensed by the State of Texas

     and governed by the Texas Occupations Code sections 901 et seq.

8.   On or about March 26, 2014 Mr. Holtman was instructed to turn over

     ALL DOCUMENTS related to 8650 Frisco LLC to Defendant’s new CPA

     or to Defendant.

9.   Mr. Holtman refused this request, and instructed both Defendant’s new

     CPA and Defendants that he was “unsure of who his client was” and

     was advised by Plaintiffs’ counsel that he should not turn over any files

     until after the Temporary Injunction Hearing. The Temporary Injunction

     was denied.

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                      3 of 20


Exhibit R                                                             App. 141
10.   Subsequent to this conversation, Defendants’ Counsel sent a cease and

      desist letter dated March 27, 2014 to Kelly Stephens, Counsel for

      Plaintiff, instructing Plaintiffs to refrain from accessing computers owned

      by Defendants and instructing Plaintiffs to turn over all documents

      improperly obtained from Holtman. In addition the cease and desist

      letter directed Plaintiffs to immediately cease their interference with the

      accountant - client relationship between 8650 Frisco LLC and Holtman.

      Exhibit A.

11.   Plaintiffs ignored this demand, and subsequently violated federal law by

      logging into Defendants’ computer network, issuing subpoenas to

      Holtman, and obtaining files from Holtman.

12.   Plaintiffs then presented a witness who claims that he never accessed

      the computer files, rather the files were emailed to him automatically.

      Each and every witness Plaintiffs have ever presented have perjured

      themselves with the help and assistance of Plaintiffs’ counsel, suborning

      the perjury.

13.   After determining that Plaintiff would continue to interfere with the

      accountant client relationship, and attempt to improperly obtain files

      directly from Holtman, Defendants instructed Holtman to TURNOVER

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                       4 of 20


Exhibit R                                                              App. 142
      ALL DOCUMENTS and destroy his BACKUPS. Un-labeled Exhibit to

      Plaintiffs Motion to Compel and for Sanctions.

                          ARGUMENT & AUTHORITIES

14.   Plaintiffs counsel misrepresents facts, yet again, to the Court. Plaintiffs’

      motion is frivolous and should be denied. All costs and attorney’s fees

      incurred in the filing of this response should be taxed against Plaintiffs

      and awarded to Defendants.

15.   Plaintiffs purport to request of a non party Hal Holtman, a subpoena,

      deposition on written questions and document, unsigned and improperly

      issued. See Subpoena attached to Plaintiffs’ Motion to Compel and

      Sanctions.

16.   Plaintiffs’ subpoena is improper and fails to comply with the Texas

      Rules. As such, the Subpoena is void and does not require compliance.

      Sapp v. King, 66 Tex. 570, 1 S.W. 466 (1886). 128 years ago the Texas

      Supreme Court determined that Plaintiffs’ subpoenas were void and no

      one needed to comply. Id. Despite Plaintiffs’ assertion that “no court has

      ever determined (or has been asked to determine) that the requests

      were improper or excused Holtman’s compliance with the subpoena” a

      void request does not require a court to determine if it is enforceable. If

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                        5 of 20


Exhibit R                                                               App. 143
      the request is VOID it can never be enforceable. Wichita County v.

      Robinson, 155 Tex. 1, 11, 276 S.W.2d 509, 515 (TEX. 1955)(Holding

      an act declared to be void, is void from the beginning and was never

      valid nor enforceable at any time.).

17.   The Subpoena is improper for numerous reasons, as have been

      explained to both Gulf Stream Legal Group LLC and to Plaintiffs’

      counsel– Defendants incorporate this letter herein by reference, in haec

      verba. See Letter Dated April 21, 2014 to Kelly Stephens, CCed to Gulf

      Stream Legal Group LLC.

18.   The Subpoena requests documents and Plaintiffs have failed to comply

      with Tex. R. Civ. P. 205, this rule requires an additional 10 days notice

      given to each party prior to document production request directed at non

      parties. Tex. R. Civ. P. 205.

19.   In addition, this notice of deposition is not signed by an attorney. Tex.

      R. Civ. P. 191. 3. Plaintiffs had a lawyer sign the certificate of service,

      but not the actual notice, nor the actual questions served on the non

      party. See Notice of Deposition attached to Plaintiffs’ Motion to Compel

      and Sanctions.

20.   The failure of a lawyer to sign the notice, renders the request a nullity,

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                       6 of 20


Exhibit R                                                              App. 144
      no court is required to determine this issue. Tex. R. Civ. P. 191.3(d)(“If

      a request, notice, response, or objection is not signed, it must be striken

      unless it is signed promptly after the omission is called to the attention

      of the party making the request, notice, response, or objection. A party

      is not required to take any action with respect to a request or

      notice that is not signed.”)(emphasis added). Certainly, if a party is not

      required to respond, a non party is afforded a higher level of protection

      and therefore is not required to answer frivolous requests either.

21.   Plaintiffs argue that Jeremy Masten signed the requests, this is certainly

      not true, as there is a horizontal page break, and certificate of service

      language above what purports to be Mr. Masten’s signature. See

      Plaintiffs’ Exhibit 2 attached to Plaintiffs’ Motion to Compel and for

      Sanctions. This is a separate requirement from signing the discovery

      request itself. Plaintiffs have simply failed to comply with the rules and

      attempt to back into the compliance by arguing that the signing of the

      certificate of service is the signing of the document.

22.   Plaintiffs misrepresent the request to destroy BACKUPS of documents

      owned by Defendant and blow it out of proportion, by relating the

      request to an instruction to a witness to destroy documents. See

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                       7 of 20


Exhibit R                                                              App. 145
      Plaintiffs’ Emergency Motion to Compel and for Sanctions, ¶7.

23.   This accusation is a waste of the litigants time as well as the courts, and

      is plainly a silly argument.

24.   After Holtman was terminated, instructed to return documents, and

      agreed to return documents, Holtman was instructed again to deliver all

      documents in his possession owned by 8650 Frisco LLC to Defendants’

      Counsel’s office. This request is not uncommon as Holtman has no

      possessory interest in the documents, no right to the documents, and

      the statute and his ethical obligations indicate that the documents are

      those of his clients. See Texas Administrative Code Rule §501.76 and

      Tex. Occ. Code § 901.457.

25.   The Texas Rules of Civil Procedure state that subpoena’s should not be

      utilized to circumvent the traditional rules of discovery. Tex. R. Civ. P.

      176.3(b).

26.   Plaintiff contends that by issuing the subpoena, no objection by

      Defendants would be valid. Plaintiffs’ Motion to Compel and for

      Sanctions, FN 2 (Rule 176.6(d) does not provide for objections to be

      filed by anyone other than the person commanded to comply with the

      subpoena. Accordingly, any objections, as such, by Defendants to the

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                       8 of 20


Exhibit R                                                              App. 146
      Notice would be improper and should be overruled.”).

27.   However, because Plaintiff has ignored the requirement to serve a 10

      day notice prior to issuing the subpoena he has failed to comply with the

      Texas Rules. Tex. R. Civ. P. 200; 199.2; 205. This failure to issue the

      proper notice, and properly comply with the subpoena rules, renders

      Plaintiffs’ request moot, as it is void.

28.   Even if Plaintiff is correct and there is no statute governing the

      protection of documents between accountant and client, these

      documents are owned by Defendant 8650 Frisco LLC and not the

      accountant. In re Kuntz, 124 S.W.3d 179, 184 (Tex.,2003); Cf. In re

      Grand Jury Subpoena (Kent), 646 F.2d 963, 969 (5th Cir.1981) (“The

      [employee's] subpoena, if upheld, would be illegal because it would

      direct her to produce documents not in her possession, custody, or

      control. Because [employee] had mere access, her compliance with the

      subpoena would have required that she illegally take exclusive

      possession of [her employer's] documents and deliver them to the grand

      jury.”).

29.   Holtman’s possession of the documents and enforcement of the

      subpoena would require Holtman to improperly turn over documents

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                     9 of 20


Exhibit R                                                            App. 147
      under the possession, custody and control of Defendants. In re Shell E

      & P, Inc., 179 S.W.3d 125, 131 (Tex.App.–San Antonio,2005)

30.   Plaintiffs’ requests should be directed at Defendants in this matter, so

      that Defendants may properly object, and defend against an improper

      invasion of their rights. Id.

31.   However, the Texas Occupations Code controls, Section 901.457

      labeled “Accountant Client Privilege” imposes a duty on CPAs not to

      disclose information outside of certain limited situations. Tex. Occ. Code

      § 901.457. The Texas Legislature decided that this was a privilege

      owed to the client by the Certified Public Accountant.

32.   Plaintiff contends that Courts are not bound by statutes, “no court has

      elevated the professional standard established by this statue to an

      evidentiary privilege under Texas Law.” Plaintiffs’ Motion to Compel, pg

      6 citing Canyon Partners, L.P. v. Developers Diversified Realty Corp.

      Cause No. No. 3–04–CV–1335–L, 2005 WL 5653121, 1 (N.D.Tex.,

      2005). Plaintiff similarly cites In re Arnold for the same proposition. In re

      Arnold, Cause No. 13–12–00619–CV, 2012 WL 6085320, 1 (Tex.App.-

      Corpus Christi,2012).

33.   Neither the Thirteenth District Court of Appeals cases nor the Norther

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                        10 of 20


Exhibit R                                                                App. 148
      District of Texas Case have precedential value only persuasive value.

      In re Devon Energy Corp., 332 S.W.3d 543 (Tex. App. Houston 1st Dist.

      2009) (Holding Texas Courts are not bound by opinions from Federal

      District Courts or Appeals Courts on state law issues); Simien v. Unifund

      CCR Partners 321 S.W.3d 235, 245 (Tex.App.–Houston [1 Dist.], 2010)

      (Determining and citing other cases for the proposition that Courts of

      appeals are not bound by the decisions of sister appeals courts in

      Texas.).

34.   More precedential is a pronouncement from the Texas Supreme Court.

      “Enforcing the law as written is a court's safest refuge in matters of

      statutory construction, and we should always refrain from rewriting text

      that lawmakers chose....” Entergy Gulf States, Inc. v. Summers, 282

      S.W.3d 433, 443 (Tex.2009).

35.   “The plain meaning of the text, given the context of the statute as a

      whole, provides the best expression of legislative intent.” Liberty Mut.

      Ins. Co. v. Adcock, 412 S.W.3d 492, 494 (Tex.,2013).

36.   Finally, a court “ must enforce the plain meaning of an unambiguous

      statute.” Tune v. Texas Dept. of Public Safety. 23 S.W.3d 358, 363

      (Tex.,2000).

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                    11 of 20


Exhibit R                                                            App. 149
37.   The plain meaning of Section 901.457 imposes a privilege similar to

      that of a lawyer upon CPAs. There can be no other interpretation, a

      privilege exists. The legislature has spoken, the courts must enforce its

      plain language. Tune v. Texas Dept. of Public Safety. 23 S.W.3d 358,

      363 (Tex.,2000).

38.   Plaintiffs further cite to Sims v. Kaneb Services, Inc. as further authority

      that there is no privilege. Sims v. Kaneb Services, Inc., 1988 WL

      62294, 1 (Tex.App.-Hous. 14 Dist.,1988). Plaintiff is absolutely correct,

      if we were in 1988 there would be no privilege–because in 1988,

      Section 901.457 of the Texas Occupations Code did not yet exist.

39.   This argument lacks merit and even basic research, because Section

      901.457 of the Texas Occupations Code was enacted in 1999. Acts

      1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts

      2001, 77th Leg., ch. 1497, § 31, eff. Sept. 1, 2001; Acts 2013, 83rd

      Leg., ch. 36 (S.B. 228), § 2, eff. Sept. 1, 2013.

Accusations of Felonious Conduct

40.   Plaintiffs continue their tirade by accusing Mosser of a felony. See

      Section III, Plaintiffs Motion to Compel and for Sanctions.

41.   No felony has been committed by the Defendants or their lawyers and

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                       12 of 20


Exhibit R                                                               App. 150
      Plaintiffs accusations lack merit.

42.   Initially, Plaintiffs embellish the request made of Mr. Holtman. “Mr.

      Mosser has asked Defendants’ former accountant to destroy every

      single document related to 8650 Frisco.” Plaintiffs Motion to Compel

      and for Sanctions, ¶28.

43.   As plaintiff clearly attaches to his pleadings the exact letter, which

      managed to end up in Plaintiffs possession in violation of Section

      901.457, the letter requests that the documents be preserved, and

      delivered to a secure location so Mr. Holtman would not further

      hemmorage documents protected by, at the very least a confidentiality

      statute, or the privilege that the statute affords the client of the Certified

      Public Accountant.

44.   Mr. Holtman has already demonstrated to the Court under oath that he

      willingly will divulge information to Plaintiffs and Plaintiffs’ attorneys,

      therefore it is abundantly obvious that confidential and privileged

      documents are not secure in his possession. See testimony of Holtman

      at Temporary Injunction Hearing.

45.   Mosser requested those confidential and privileged documents be

      secured and transferred to an agent that would respect the law and not

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                        13 of 20


Exhibit R                                                                App. 151
      publish the documents to any one who asked.

46.   The letter clearly states, ONCE YOU HAVE PRODUCED THOSE

      DOCUMENTS, you are instructed to destroy all COPIES AND

      BACKUPS. Exhibit to Plaintiffs Motion to Compel and Sanctions.

47.   Given that the documents would be secure and in the hands of 8650

      Frisco LLC (the client), or its counsel, no records would be destroyed,

      altered, or concealed. Therefore, there would no violation of any law,

      much less Tex. Penal Code § 37.09.

48.   Furthermore, Section 37.09 of the Texas Penal Code further states,

      “This section shall not apply if the record, document, or thing concealed

      is privileged or is the work product of the parties to the investigation or

      official proceeding.” Tex. Penal Code § 37.09(b).

49.   Because no documents were destroyed, and unfortunately and in

      violation of Texas Law, no documents were delivered to Defendants as

      requested, none of Plaintiffs’ alleged wrongful conduct has occurred.

      Even if Holtman followed this instruction, no wrongful conduct would

      have occurred, the documents would not be concealed or destroyed,

      they would be subject to a proper request for production directed at the

      correct party, 8650 Frisco LLC, the true owner of the documents. Tex.

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                      14 of 20


Exhibit R                                                              App. 152
      R. Civ. P. 196.

The Proposed Sanction

50.   Plaintiffs propose three preposterous sanctions for this hypothetical

      crime. Plaintiffs Motion to Compel and Sanctions, ¶32.

51.   Initially, given Plaintiffs’ supplement, this issue is now moot. No

      documents were produced, no documents were destroyed, no

      documents were ever going to be destroyed, and Plaintiffs have gotten

      excited over a change in the location of the documents. Holtman, after

      being reprimanded by the Texas State Board of Public Accountants,

      understands the importance of retaining the client confidence, and has

      stated he will comply with the confidentiality section of the Texas

      Administrative Code, Rule 501.76.

52.   Because no documents were destroyed, and never would have been,

      a spoliation instruction would be improper. Brumfield v. Exxon Corp.,

      63 S.W.3d 912, 920 (Tex.App.–Houston [14 Dist.],2002).

53.   A court cannot make an instruction if evidence is not destroyed. Id. See

      also Whiteside v. Watson, 12 S.W.3d 614, 621 (Tex.App.-Eastland

      2000, pet. denied) (Spoliation is the improper destruction of evidence.).

54.   The rebuttable presumption is a jury instruction, not an “order

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                    15 of 20


Exhibit R                                                            App. 153
      establishing” what evidence in existence states, as plaintiff contends.

      See Paragraph 32(2), Plaintiffs Motion to Compel and for Sanctions.

55.   Because the evidence still exists, has not be concealed, destroyed, or

      altered, there can be no spoliation instruction much less and order

      declaring evidence states something contrary to its contents.

56.   Plaintiffs further request that their case be determined in this one

      motion, “that plaintiffs are entitled to one half of the generated profits,

      that plaintiffs are entitled to full repayment of the startup funds they

      provided...” See Paragraph 32(2), Plaintiffs Motion to Compel and for

      Sanctions.

57.   Spoliation is a rebuttable presumption, not a means to conclude the

      case before it even begins. Ordonez v. M.W. McCurdy Co., Inc., 984

      S.W.2d 264, 273 and n. 11 (Tex.App.-Houston [1st Dist.] 1998, no pet.).

58.   Plaintiffs other requests are similarly absurd. Plaintiffs request payment

      for their subpoena, copying and shipping of the documents. In addition,

      Plaintiffs request an order requiring Defendants’ counsel to pay for

      Plaintiffs misapprehension of the letter, and the law, as well as refusing

      to allow Defendants to support affirmative defenses. See Paragraph 32,

      Plaintiffs Motion to Compel and for Sanctions.

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                      16 of 20


Exhibit R                                                              App. 154
59.   Because there is no “crime” not even a request to commit a “crime” and

      no documents would have been destroyed, nor have any been

      destroyed, there has been no wrongful conduct therefore no discovery

      sanction is warranted. See Plaintiffs supplement to Plaintiffs Motion to

      Compel and for Sanctions, letter from Hal Holtman.

The Motion

60.   Plaintiffs’ Motion is further defective, as it seeks to compel production

      prior to the date stated in his defective subpoena and notice for

      deposition. Exhibit to Plaintiffs Motion to Compel and for Sanctions

      (Subpoena and notice). Plaintiff contends this is an emergency, yet

      continues to request this hearing after Holtman sent the letter stating he

      would comply with his obligations and Texas law regarding client

      information.

61.   Furthermore, sanctions cannot be imposed for conduct that is not

      wrongful. As even if Holtman complied with the instruction, NO

      DOCUMENTS WOULD HAVE BEEN DESTROYED, they would simply

      be in the possession of their owner, 8650 Frisco LLC.

62.   Plaintiffs further have failed to serve Holtman as he is the party that

      must be compelled to do some act. See Certificate of Service, Plaintiffs

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                     17 of 20


Exhibit R                                                             App. 155
      Motion to Compel and for Sanctions.

63.   In addition, Plaintiff failed to make a reasonable attempt at conferencing

      on this motion. No details were contained in Mr. Masten’s certificate of

      conference of how he attempted to do this, nor what issues were

      discussed at this “conference.” Defendants do confirm that Mr. Masten

      left a vague and unintelligible voice mail concerning a possible motion,

      but no details were identified. Furthermore, no conference was held on

      Plaintiffs notice of hearing as required under Rule 191.2 of the Texas

      Rules of Civil Procedure. See also Tex. R. Civ. P. 191.3(e).

                                 CONCLUSION

64.   Plaintiffs motion has no purpose other than to burden the Court and

      harass the Defendants. Plaintiffs have made it clear that they are not

      concerned with the law as they continue to perjure themselves with the

      active assistance of their attorneys, ignore Texas Statutes, fail to follow

      the Texas Rules of Civil Procedure, and seek motions with no basis in

      law. Because there has been no wrongful conduct, merely a request for

      Holtman to relocate the documents and deliver them to their owner,

      there is no basis for sanctions or a motion to compel.

                                    PRAYER

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                      18 of 20


Exhibit R                                                              App. 156
65.   Defendants pray the Court will deny Plaintiffs’ frivolous motion and order

      Holtman to deliver the documents related to 8650 Frisco LLC to

      Defendants’ counsel where the privilege will be enforced. Defendants

      further request that the court award all necessary costs and attorney’s

      fees to Defendants for the preparation and attendance at this hearing.

      Defendants further request that Plaintiffs and their attorneys be referred

      to the District Attorney with a copy of the transcript from Temporary

      Injunction Hearing and the affidavit attached to the Application for the

      TRO.


Respectfully submitted, MOSSER LAW PLLC,

/s/ Nicholas D. Mosser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
Benjamin Casey
Texas Bar No. 24087267
17110 Dallas Parkway Suite 290
Dallas, TX 75248
Tel. (972) 733-3223
Fax. (972) 267-5072
courtdocuments@mosserlaw.com
Lawyers for Defendants


                        CERTIFICATE OF SERVICE

Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                     19 of 20


Exhibit R                                                             App. 157
I certify that on May 10, 2014, a true and correct copy of this document was
served to the following pursuant to Texas Rules of Civil Procedure 21 &
21(a).

Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460

/s/ Nicholas D. Mosser
By: Nicholas D. Mosser




Defendants’ Response to Plaintiffs’
Motion to Compel and for Sanctions                                  20 of 20


Exhibit R                                                          App. 158
                                                                                4/24/2014 2:56:55 PM
                                                                                Chris Daniel - District Clerk
                                                                                Harris County
                                                                                Envelope No: 1081864
                                                                                By: PALMER, EVELYN J

                                          CAUSE NO. 2014-10896

   LOS CUCOS MEXICAN CAFE VIII,
   INC.; LOS CUCOS MEXICAN
                                                     §
                                                     §
                                                             IN THE DISTRICT COURT OF             f3
   CAFE IV, INC.; MANUEL                             §
   CABRERA; and SERGIO                               §                                   fJ £AirX-
   CABRERA,                                          §
              Plaintiffs                             §

   v.

   8650 FRISCO, LLC D/B/A ESTILO
                                                     §
                                                     §
                                                     §
                                                     §
                                                             HARRISCOU~TEXAS
                                                                    ~
                                                                                ~ *
   GAUCHO BRAZILIAN                                  §                   0~
   STEAKHOUSE; MANDONA, LLC;
   GALOVELHO, LLC; BAHTCHE,
                                                     §
                                                     §
                                                                     o{f?~
   LLC; CLAUDIO NUNES; and
   DAVID JEIEL RODRIGUES,
                                                     §
                                                     §        o@j   ~
              Defendants                             §       1~ .nJDICIAL DISTRICT
                                                              (')


                                                  0RD~
               ON PLAINTIFFS' EMERGENCY Mo~"-ro COMPEL AND FOR SANCTIONS
                                                ,Q
          The Court, having considered         ~intiffs'   Emergency Motion to Compel and for
                                            ~
   Sanctions, the response, the     argu~ of counsel,      and the evidence, has determined that the

  motion is meritorious and     shoul~and is hereby GRANTED in its entirety. Specifically:
          The custodian of    rec~~f Holtman & Company, LLC is hereby ORDERED to appear
                                o~
  before a notary public    f~position as subpoenaed by Plaintiffs on May 26,2014, at ~0:00a.m.
                            ~
  at the office of      Gu!J:~am   Legal Group, LLC, 16607 Blanco Road, Suite 1307, SarJ Antonio,

  Texas 78232.
                     (/~~
                     ~">
                   ©5
          Th~dian of records ofHoltman & Company, LLC is hereby ORDERED to preserve
  all documents and communications related to 8650 Frisco, LLC, including but not limited to

  those records requested by Plaintiffs, in its possession, custody, or control, during the pendency

  of this litigation.




Exhibit R
                                            Exhibit 6                                        App. 159
           The Court FINDS that Defendants' counsel has abused the discovery process in resisting

   discovery and has determined that the following sanctions are appropriate, that the following

   sanctions satisfy the legitimate purposes of discovery sanctions, and that the following sanctions

   are neither more nor less stringent than necessary to accomplish those purposes.

                                                 that all expenses of discovery    a~ated
                                                                                ~([!jj;
   underlying motio and the production o           cuments by and from Holt~ & Comp

   includin                                                fees, and the   b~re char
                                                                    ~nselr-------
         osser, individually. Nicholas D. Mosser shall pay to Plain ·

   within 10 days ofthe signing ofthis order.                    ~Q~
     ~                                                         "~
               IS FURTHER ORDERED that the follow~~acts

                                                         ~«?Qf
                          That 8650 Frisco, LLC ~ genera
                          existence.          ~

                  2.      That Plaintiffs are   e~Q
                                                ©)
                                                    to one-

                  3.      T t Plaintiffs a~entitled to full repayment of the startup funds t y
                          prov ed (in"<,~~ount to b proven at trial) with interest at the high st
                          lawful te ~                                                  '
                                   ~
                  4.      That P~h        are ent' led to reimbursement for wear and ear an
                          depr~dh oft eq pment they supplied to 8650 Frisco (in en a un
                          touoven at trial                                             '

                 FURTu;s._~ ORDE           that Defendants are P           ITED from supp<.>rting a y
                         "W
                       "~ncludi




Exhibit R                                                                                    App. 160
   furth   imposition of sanctions r a holding of conte

    oth.

   DATED:~~               l1 ~!lf
                      r (




Exhibit R                                                 App. 161
                                                                                                    6/11/2014 2:07:32 PM
                                                                               Chris Daniel - District Clerk Harris County
                                                                                                   Envelope No. 1510270
                                                                                                 By: AMANDA ARRIAGA


                                      Cause No. 2014-10896

LOS CUCOS MEXICAN CAFE VIII,                     §                IN THE DISTRICT COURT OF
INC.; LOS CUCOS MEXICAN CAFE IV,                 §
INC.; MANUEL CABRERA; AND                        §
SERGIO CABRERA,                                  §
                                                 §
                       Plaintiffs,               §
                                                 §
v.                                               §                   HARRIS COUNTY, TEXAS
                                                 §
8650 FRISCO, LLC D/B/A ESTILO                    §
GAUCHO BRAZILIAN STEAKHOUSE;                     §
MANDONA, LLC; GALOVELHO, LLC;                    §
BAHTCHE, LLC; CLAUDIO NUNES; and                 §
DAVID JEIEL RODRIGUES,                           §
                                                 §
                       Defendants.               §                   133rd JUDICIAL DISTRICT



      PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO STAY ALL MATTERS
                                               AND
                          PLAINTIFFS’ THIRD MOTION TO COMPEL


       Plaintiffs file this response to Defendants’ Motion to Stay All Matters concurrently with

their Third Motion to Compel, asking the Court to deny Defendants’ motion to stay, to compel

Defendants to produce requested documents, and to compel Defendants (again) to appear for

deposition. Plaintiffs also ask the Court to award them the costs incurred in responding to

Defendants’ groundless, bad faith, and harassing motion, as well as Plaintiffs’ reasonable

expenses caused by Defendants’ failure to obey the Court’s original order compelling them to

appear for deposition. In support thereof, Plaintiffs respectfully show the Court the following:

                                     HOW WE GOT HERE
       1.      Plaintiffs filed this lawsuit on March 3, 2014. Each of the defendants was served

by March 24, 2014. Two days later, March 26, 2014, Defendants jointly filed their Emergency




Exhibit R
                                        Exhibit 7                                         App. 162
Motion to Transfer Venue. At that time, under Rule 87(1), TEX. R. CIV. P., Defendants could

have set a hearing on their motion to transfer as early as May 10, 2014. They did not.

       2.      On April 7, 2014, the Court held a hearing on Plaintiffs’ request for a temporary

injunction. At the end of the hearing, Defendants’ counsel verbally requested an expedited

hearing on their motion to transfer. The Court directed counsel to contact the clerk to schedule a

hearing. At that time, Defendants could have set their hearing as early as May 22, 2014. They did

not.

       3.      On May 12, 2014, the Court held a hearing on Plaintiffs’ motion to compel the

production of documents by an accountant formerly employed by both parties. Defendants again

noted their desire to transfer this lawsuit to Collin County. At that time, Defendants could have

set their hearing as early as June 26, 2014. They did not.

       4.      Instead, on June 3, 2014, Defendants filed a motion to stay all proceedings and set

the hearing on that motion for June 16, 2014. At the time Defendants obtained the hearing on the

motion to stay, Defendants could have set the hearing on the motion to transfer as early as July

18, 2014. They did not.

       5.      Meanwhile, on April 14, 2014, Plaintiffs served discovery requests on

Defendants. See Plaintiffs’ Exhibit 1, Plaintiffs’ Discovery Requests. On May 14, 2014,

Defendants served responses and numerous objections to Plaintiffs’ discovery requests,

specifically Plaintiffs’ requests for production. See Plaintiffs’ Exhibit 2, Defendants’ Discovery

Responses. Defendants produced 184 pages of documents, but withheld hundreds of pages more

that are responsive and discoverable.

       6.      Finally, Plaintiffs have been attempting to take the Defendants’ depositions for

over two months. At the hearing on May 12, the Court asked Defendants’ counsel to provide

dates on which he would be willing to produce his clients for deposition in Houston. Defendants’

counsel offered June 9 and 10, 2014. Plaintiffs accordingly served notices of deposition on



                                                 2
Exhibit R                                                                                App. 163
    Defendants for those dates. See Plaintiffs’ Exhibit 3, Deposition Notices.1 On June 8, 2014—the

    day before the depositions were to be taken and after Plaintiffs’ counsel devoted substantial time

    to preparing for the depositions—Defendants’ counsel informed Plaintiffs that Defendants would

    not appear for deposition on the dates they had offered and filed a motion with the Court.

           7.      The story that has developed in this litigation is one of Plaintiffs attempting to

    move forward and Defendants resisting the expeditious adjudication of the parties’ rights. The

    blame for any delay in the prosecution of this lawsuit falls squarely at the feet of Defendants and

    their counsel. In the interest of obtaining a fair, equitable, and impartial adjudication of the

    parties’ rights with as great expedition and the least expense, see TEX. R. CIV. P. 1, the Court

    should deny Defendants’ Motion to Stay, order Defendants to produce the documents they have

    withheld, and order Defendants to appear for deposition in Houston, Texas.

                                     ARGUMENTS & AUTHORITIES
           8.      The Court should deny Defendants’ motion to stay because it has no basis in law

    or in fact. That is, it is expressly prohibited by Rule 88, TEX. R. CIV. P., and, even if it were not,

    Defendants would not be entitled to stay these proceedings because they have intentionally

    thwarted the expeditious adjudication of this matter.

    I.     Defendants’ motion to stay should be denied because it has no basis in law or fact.

           A.      Rule 88 prohibits the abatement of discovery during the pendency of a
                   motion to transfer venue.

           9.      Defendants have asked the Court to abate all discovery and all other activity in

    this case while Defendants await the transcript of the temporary injunction hearing that occurred

    over two months ago. Defendants ask the Court to exercise its discretion to protect them from

    Plaintiffs’ prosecution of this lawsuit. Generally speaking, the Court has “inherent power to

1
     Out of consideration for Defendants’ schedules, Plaintiffs’ counsel asked Defendants’ counsel to
    identify the corporate representatives of each of the company defendants and offered to schedule
    the corporate depositions accordingly. See Plaintiffs’ Exhibit 4, Meade Letter of May 12, 2014.
    Defendants did not respond.


                                                      3
    Exhibit R                                                                                App. 164
control the disposition of the cases on its docket with economy of time and effort for itself, for

counsel, and for litigants.” In re A.E.A., 406 S.W.3d 404, 419–20 (Tex. App.—Fort Worth 2013,

no pet.) (internal quotations omitted) (citing Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.—

Houston [1st Dist.] 1994, writ denied)); Landis v. North American Co., 299 U.S. 248 (1936).

Defendants suggest that there is “no guiding light” for the Court’s exercise of its discretion.

        10.       Defendants apparently ignored Rule 88, which expressly provides that “Discovery

shall not be abated or otherwise affected by pendency of a motion to transfer venue.” TEX. R.

CIV. P. 88 (emphasis added). As the Dallas Court of Appeals explained: “The purpose of Rule 88

is to enable the parties to proceed with preparation for trial on the merits, promptly and

unhampered, so that the [motion to transfer venue] will not delay final disposition of the

suit.” Newman Oil Co. v. Alkek, 585 S.W.2d 340, 341 (Tex. Civ. App.—Dallas 1979, no

writ), citing Texas Land & Development Co. v. Myers, 239 S.W. 303, 304 (Tex. Civ. App.—San

Antonio 1922, writ dism’d).

        11.       Furthermore, “depositions before disposition of the [motion to transfer venue]

need not be limited to venue issues.” Newman Oil Co., 585 S.W.2d at 341. The rule in Texas is

that,

                  Once there has been a timely motion to transfer venue, a
                  defendant has no choice but to continue on in the venue in which
                  he finds himself, correct or not. See TEX. R. CIV. P. 88. To rule
                  otherwise would have the effect of tying the defendant’s hands and
                  force a Hobson’s choice. Nor do we think the defendant has to
                  engage in the meaningless ritual of adding the words “subject to
                  our motion for a change of venue” every time a motion is
                  made. See TEX. R. CIV. P. 88.

Nabors Loffland Drilling Co. v. Martinez, 894 S.W.2d 70, 72 (Tex. App.—San Antonio 1995,

writ    denied)     (emphasis   added).   In   other   words,    “the   only   identified   possible

bar,” see Defendants’ Motion to Stay at 8, is the only bar necessary to defeat Defendants’

motion.



                                                  4
Exhibit R                                                                                App. 165
       12.     Accordingly, Defendants’ motion should be denied, and Plaintiffs should be

awarded their costs incurred in opposing the motion because Defendants’ motion has no basis in

law.

       B.      There is no reason why Defendants cannot set a hearing on their motion to
               transfer.

       13.     When the hearing is held on Defendants’ motion to stay, this lawsuit will have

been pending in this Court for 105 days. During that time period, Plaintiffs requested a

temporary restraining order and a temporary injunction, requested documents from the former

and current accountants of the business in question, propounded written discovery to Defendants,

and have twice attempted to take the Defendants’ depositions. When Defendants instructed their

former accountant to withhold and destroy evidence, Plaintiffs promptly filed a motion and set a

hearing. When Defendants refused to appear for their properly noticed depositions the first time,

Plaintiffs promptly filed a motion and set a hearing. Plaintiffs will shortly file a second motion to

compel Defendants’ depositions because they refused to appear on the dates they provided, in

direct contravention of the Court’s order.

       14.     Defendants, on the other hand, have filed two dilatory motions and generally

sought to obstruct the expeditious adjudication of this matter. Defendants’ motion to stay is

merely the latest effort by Defendants to add expense and delay to this lawsuit.

       15.     Defendants have repeatedly claimed that they will set their motion to transfer for

hearing just as soon as they receive the transcript of the hearing held on April 7, 2014. See,

e.g., Defendants’ Motion to Stay at 5 (claiming that “because of Defendants[’] inability to set the

motion to transfer venue for hearing, hoping to secure the transcript from the court reporter”).

Defendants suggest that they need the transcript so that “the testimony of Plaintiffs perjuring

themselves could be put into the record appropriately.” See Defendants’ Motion to Stay at 5.

       16.     First, as a procedural matter, Plaintiffs’ testimony at the April 7 hearing is not

admissible on the issue of venue. Rule 87 provides that the Court “shall determine the motion to


                                                 5
Exhibit R                                                                               App. 166
transfer on the basis of [1] the pleadings, [2] any stipulations made by and between the parties

and [3] such affidavits and attachments as may be filed by the parties in accordance with

[Rule 87(3)(a), regarding affidavits] or of Rule 88 [regarding evidence permissibly attached to

affidavits].” TEX. R. CIV. P. 87(3)(b). Rule 88 allows the consideration of “Deposition

transcripts, responses to requests for admission, answers to interrogatories and other discovery

products containing information relevant to a determination of proper venue . . . when they are

attached to . . . an affidavit of a party, witness or an attorney who has knowledge of such

discovery.” TEX. R. CIV. P. 88. In other words, the venue question is determined by the

pleadings, not by live testimony. Any testimony given in a hearing on a separate matter is not

admissible for purposes of venue.

        17.    Furthermore, Defendants could have taken Plaintiffs’ depositions and developed

the same facts in an admissible format. They did not.

        18.    Second, as a substantive matter, even if Plaintiffs committed or suborned

perjury—an allegation Plaintiffs vehemently deny—that by itself would not be sufficient

grounds to transfer venue. The determination of venue is not punitive; it is focused entirely on

whether the properly pled and proved facts support venue in the county of suit.

        19.    Accordingly, Defendants’ motion should be denied, and Plaintiffs should be

awarded their costs incurred in opposing the motion because Defendants’ motion has no basis in

fact.

II.     The Court should overrule Defendants’ objections and order the production of
        responsive and discoverable materials.

        20.    On April 14, 2014, Plaintiffs served discovery requests on Defendants. See

Plaintiffs’ Exhibit 1, Plaintiffs’ Discovery Requests. On May 14, 2014, Defendants served




                                                6
Exhibit R                                                                           App. 167
responses to Plaintiffs’ discovery requests.2 See Plaintiffs’ Exhibit 2, Defendants’ Discovery

Responses. Defendants produced 184 pages of documents, but withheld hundreds of pages more

that are responsive and discoverable.

       A.      There is no “accountant-client privilege” in Texas.

       21.     Defendants withheld various categories of accounting records for Defendant 8650

Frisco, LLC, on the basis of an asserted privilege that does not exist in Texas. See Plaintiffs’

Exhibit 2, Defendants’ Discovery Responses, Requests for Production Nos. 1, 2, 4, and 8.

Plaintiffs incorporate the arguments set forth in their Emergency Motion to Compel and for

Sanctions, filed April 24, 2014, and the arguments made at the hearing on May 12, 2014, as if set

forth verbatim herein. The bottom line is that Texas law does not recognize an accountant-client

privilege and Defendants cannot withhold responsive and discoverable documents on that basis.

       22.     The Court has already ruled on this point when it compelled third party

production from Defendants ex-accountant. Defendants not only asserted a baseless objection,

but they withheld production of documents based on an objection the Court has already

overruled. The result is yet another motion to compel.

       B.      There is no “tax return privilege.”

       23.     Defendants withheld the tax records, including K-1 forms, relating to 8650 Frisco,

LLC, on the basis of a law that renders information confidential but not privileged. See

Plaintiffs’ Exhibit 2, Request for Production No. 7. Judge Rosenthal addressed exactly this

situation in Alpert v. Riley, No. CIV.A. H-04-CV-3774, 2009 WL 1226767 (S.D. Tex. Apr. 30,

2009). Like the Alpert defendants, these Defendants do not specify on which part of Section

6103 they rely. Regardless,




2
  It may be interesting to note that some of Defendants’ answers to interrogatories and
admissions appear to contradict the documents produced by Defendants. Nevertheless, Plaintiffs
will refrain from making accusations of perjury until the evidence is more fully developed.


                                                7
Exhibit R                                                                            App. 168
               Section 6103 does not impose secrecy obligations on the
               defendants and does not give them a blanket privilege or protection
               against discovery. Section 6103 applies only to government
               officers and employees. Section 6103 cannot be used invoked to
               “block access, through pretrial discovery or otherwise, to copies
               of tax returns in the possession of litigants.”

Alpert v. Riley, No. CIV.A. H-04-CV-3774, 2009 WL 1226767 (S.D. Tex. Apr. 30, 2009)

(emphasis added), citing Commodity Futures Trading Comm'n v. Collins, 997 F.2d 1230, 1233

(7th Cir.1993). The Supreme Court of the United States has specifically held that “although tax

returns . . . are made confidential within the government bureau, copies in the hands of the

taxpayer are held subject to discovery.” St. Regis Paper Co. v. United States, 368 U.S. 208,

218–19 (1961) (emphasis added; internal citations omitted). In short, there is no accountant-

client privilege, and there is no tax return privilege. The Court should overrule Defendants’

spurious objections and order Defendants to produce their tax returns.

       C.      Defendants’ bank records are discoverable.

       24.     Defendants withheld the bank statements of 8650 Frisco, LLC, on the basis that it

“is an improper method to request records of a financial institution” under TEX. FIN. CODE

§ 59.006. See Plaintiffs’ Exhibit 2, Request for Production No. 5. Plaintiffs note, however, that

section 59.006 governs the production of documents by the financial institution, not the

production of documents in the possession, custody, or control of a party. Subsection (b)

provides that “A financial institution shall produce . . . .” Subsection (e) governs a party-

customer’s obligation regarding “the financial institution’s compliance with a record request.”

Subsection (f) provides time lines before which “[a] financial institution may not be required to

produce a record.” TEX. FIN. CODE § 59.006(b), (e), (f) (emphasis added). Section 59.006 simply

does not apply to a request for documents directly from the customer. Accordingly, the Court

should overrule Defendants’ objection and order Defendants to produce the bank statements of

Defendant 8650 Frisco, LLC.



                                                8
Exhibit R                                                                            App. 169
       D.      Defendants’ financial records are discoverable.

       25.     Defendants claimed to produce “all financial records of 8650 Frisco, LLC,” see

Plaintiffs’ Exhibit 2, Defendants’ Discovery Responses at 14 but in fact produced only those

documents Plaintiffs submitted as exhibits at the hearing on April 7, 2014. The Court should

overrule Defendants’ objections and order Defendants to produce the financial records of

Defendant 8650 Frisco, LLC.

III.   The Court should appoint a discovery master.

       26.     During the progress of this lawsuit, Defendants have consistently engaged in

dilatory tactics with no purpose other than delay and increasing cost. Defendants have lodged

spurious objections about, for example, signatures, distances, and privileges which do not exist

under Texas law. Defendants have made unsubstantiated allegations about the unauthorized

practice of law and subornation of perjury. And Defendants have refused to appear for deposition

despite the Court’s order that they do so. In short, this is an exceptional case in which good cause

exists for the appointment of a discovery master under Rule 171, TEX. R. CIV. P.

       27.     Accordingly, Plaintiffs respectfully request that the Court appoint a master in

chancery under Rule 171 to control the discovery phase of this case by hearing and ruling upon

objections lodged with respect to written discovery; by participating in depositions for the

purpose of hearing and ruling upon any objections which may be lodged; and by hearing and

ruling upon any discovery motions filed by either party, including the imposition of sanctions, if

appropriate, under Rule 215, TEX. R. CIV. P.

IV.    Plaintiffs are entitled to recover their costs incurred in filing this response.

       28.     As discussed above, Defendants’ motion to stay is groundless because it has no

basis in law or fact and is not warranted by good faith argument for the extension, modification,

or reversal of existing law. See Tex. R. Civ. P. 13. Simply put, Defendants filed their motion to

stay merely to postpone their depositions and to increase the cost of litigation. As a legal matter,



                                                 9
Exhibit R                                                                               App. 170
the relief they are requesting is expressly prohibited. As a factual matter, the relief they claim to

be seeking does not line up with their actions thus far. If Defendants truly sought to reduce their

costs, they would have set a hearing on their motion to transfer venue long ago.

        29.      Similarly, as discussed above, Defendants’ objections to Plaintiffs’ discovery

requests have no basis in law or fact and have been lodged solely to delay and increase the costs

of this litigation.

        30.      Accordingly, Defendants should be ordered to personally appear before this court

and show cause why they should not be sanctioned under Rules 13 and 215 for their conduct in

filing groundless and bad faith motions and discovery responses. At this stage, Plaintiffs merely

request that they be awarded their reasonable expenses, including attorneys’ fees, caused by

Defendants’ groundless, bad faith, and harassing conduct.

                                          CONCLUSION
        Plaintiffs are attempting to fairly, efficiently, and expeditiously prosecute their claims,

but Defendants have consistently blocked Plaintiffs’ efforts by lodging groundless and bad faith

objections and filing groundless and bad faith motions. The Court should deny Defendants’

motion to stay, compel Defendants to produce all their responsive documents, and compel

Defendants to appear for deposition in Harris County, Texas. Further, the Court should order

Defendants to personally appear before the Court to show cause why they should not be

sanctioned under Rules 13 and 215, TEX. R. CIV. P. Finally, the Court should appoint a master in

chancery to resolve any future discovery disputes between the parties.

        Furthermore, Defendants’ counsel have engaged in a course of conduct indicating an

unwillingness to abide by the rules of civil procedure, the rules of professional conduct, and the

Texas Lawyers Creed. Plaintiffs respectfully request that the Court consider imposing such

sanctions as may be appropriate to encourage Defendants and their counsel to do so, including

but not limited to a finding that Defendants have consented to venue in Harris County, Texas.



                                                 10
Exhibit R                                                                               App. 171
     Plaintiffs pray for such other and further relief to which they may be entitled.

                                           Respectfully submitted,

                                           STEPHENS & DOMNITZ, PLLC

                                           /s/ Kelly D. Stephens
                                           Kelly D. Stephens
                                           SBN: 19158300
                                           P.O. Box 79734
                                           Houston, Texas 77279-9734
                                           Tel: 281-394-3287
                                           Fax: 832-476-5460
                                           kstephens@stephensdomnitz.com



                                           HAWASH MEADE GASTON NEESE & CICACK LLP


                                            /s/ Andrew K. Meade
                                           Andrew K. Meade
                                           State Bar No. 24032854
                                           Jeremy M. Masten
                                           State Bar No. 24083454
                                           2118 Smith Street
                                           Houston, Texas 77002
                                           713-658-9006 (Direct & Fax)
                                           ameade@hmgllp.com

                                           ATTORNEYS FOR PLAINTIFFS
                                           LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
                                           LOS CUCOS MEXICAN CAFÉ IV, Inc.,
                                           MANUEL CABRERA, and
                                           SERGIO CABRERA




                                              11
Exhibit R                                                                               App. 172
                              CERTIFICATE OF SERVICE
       A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on June 11, 2014.

      Via Fax: 972-267-5072 and e-file
      Nicholas Mosser
      MOSSER LAW PLLC
      17110 Dallas Pkwy, Suite 290
      Dallas, TX 75248


                                  /s/ Jeremy M. Masten
                                  Jeremy M. Masten




                                           12
Exhibit R                                                                     App. 173
                               CAUSE NO. 2014-01089

LOS CUCOS MEXICAN CAFE                     §      IN THE DISTRICT COURT OF
VIII, INC.; LOS CUCOS MEXICAN              §
CAFE IV, INC.; MANUEL                      §
CABRERA; and SERGIO                        §
CABRERA,                                   §
             Plaintiffs                    §
                                           §
v.                                         §
                                           §      HARRIS COUNTY, TEXAS
8650 FRISCO, LLC D/B/A ESTILO              §
GAUCHO BRAZILIAN                           §
STEAKHOUSE; MANDONA, LLC;                  §
GALOVELHO, LLC; BAHTCHE,                   §
LLC; CLAUDIO NUNES; and                    §
DAVID JEIEL RODRIGUES,                     §
           Defendants                      §      133rd JUDICIAL DISTRICT


     PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS TO 8650 FRISCO, LLC
              D/B/A ESTILO GAUCHO BRAZILIAN STEAKHOUSE

TO:    Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse, by and
       through its counsel of record, Nicholas D. Mosser and Benjamin Casey, Mosser
       Law PLLC, 17110 Dallas Parkway, Suite 290, Dallas, Texas 75248.

       Pursuant to the Texas Rules of Civil Procedure, Plaintiffs Los Cucos Mexican

Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera

(“Plaintiffs”) serve their First Set of Requests for Admissions, Requests for Production

and First Set of Interrogatories on Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho

Brazilian Steakhouse (“Defendant”) as authorized by Rules 196 and 198, TEX. R. CIV. P.

Defendant must specifically admit or deny and produce all requested documents in its

possession, custody, or control (as they are kept in the ordinary course of business or

organized and labeled to correspond with categories in each request) for inspection and




Exhibit R                                   EXHIBIT 1                        App. 174
copying, and not more than 30 days after service, at the office of HAWASH MEADE

GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.

                                            Respectfully submitted,

                                            STEPHENS & DOMNITZ, PLLC

                                            /s/ Kelly D. Stephens
                                            Kelly D. Stephens
                                            SBN: 19158300
                                            P.O. Box 79734
                                            Houston, Texas 77279-9734
                                            Tel: 281-394-3287
                                            Fax: 832-476-5460
                                            kstephens@stephensdomnitz.com


                                            HAWASH MEADE GASTON NEESE
                                            & CICACK LLP


                                             /s/ Andrew K. Meade
                                            Andrew K. Meade
                                            State Bar No. 24032854
                                            Jeremy M. Masten
                                            State Bar No. 24083454
                                            2118 Smith Street
                                            Houston, Texas 77002
                                            713-658-9006 (Direct & Fax)
                                            ameade@hmgllp.com
                                            jmasten@hmgllp.com

                                            ATTORNEYS FOR PLAINTIFFS
                                            LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
                                            LOS CUCOS MEXICAN CAFÉ IV, Inc.,
                                            MANUEL CABRERA, and
                                            SERGIO CABRERA




                                            2

Exhibit R                                                                 App. 175
                              CERTIFICATE OF SERVICE

       A true and correct copy of the foregoing document has been served to the
following pursuant to the Texas Rules of Civil Procedure on April 14, 2014.

            Via Fax: 972-267-5072 and
            email: courtdocuments@mosserlaw.com
            James C. Mosser
            Nicholas D. Mosser
            Mosser Law PLLC
            17110 Dallas Pkwy, Suite 290
            Dallas, TX 75248


                                     /s/ Andrew K. Meade
                                     Andrew K. Meade




                                           3

Exhibit R                                                            App. 176
                            DEFINITIONS AND INSTRUCTIONS

        1.     As used throughout this request (including these definitions and
instructions), the term “documents” means each and every document (as defined in
Rule 34, FED. R. CIV. P.), all electronically stored information, and each and every
tangible thing, including but not limited to both electronic and hard copy documents, in
the possession, custody, or control of Plaintiff, whether a copy, draft, or original,
wherever located, with all exhibits, attachments, and schedules, including but not
limited to the following: correspondence and drafts of correspondence; notes or
summaries of conversations; income tax returns, forms, schedules, or worksheets; inter-
and intra-office memoranda; reports; comments; worksheets; plans; minutes; notes;
notices or notifications; findings; conclusions; memoranda; contracts or agreements of
any kind; brochures, circulars, bulletins, advertisements, sales catalogs or literature;
packages, packaging, and package inserts; notes, records, summaries, or other reports of
conferences, meetings, visits, surveys, discussions, inspections, examinations, reviews
or telephone conversations; purchase orders, quotations, estimates, invoices, bids,
receipts, or acknowledgements, including the reverse sides of all such documents with
printing, typing or writing on the reverse sides; bills of lading and other shipping
documents; credit agreements or credit memoranda; contract or lease offers or
proposals; executed or proposed agreements, contracts, franchise agreements, licenses,
leases, insurance policies and riders, or options; proposals; diaries; desk calendars,
appointment books, or telephone call books; property valuations or appraisals, and
their updates; affidavits, depositions, transcripts and statements, or summaries or
excerpts thereof; stenographic notes; books and records; financial data; stock certificates
and evidence of stock ownership; newspaper or magazine articles; pamphlets, books,
texts, notebooks, magazines, manuals, journals, and publications; notepads, tabulations,
data compilations, calculations, or computations; schedules; drafts; charts and maps;
forecasts and projections; drawings, designs, plans, specifications, graphs, blueprints,
sketches, or diagrams; orders; pleadings and court filings; checks and check stubs (front
and back); records or transcripts of statements, depositions, conversations, meetings,
discussions, conferences or interviews, whether in person or by telephone or by other
means; workpapers; printouts or other stored information from computers or other
information retention or processing systems; e-mail or electronic mail or
communications, in whatever form; instant messages in whatever form; photographic
matter or sound reproduction matter however produced, reproduced or stored;
government reports, regulations, filings or orders; any other written, printed, typed,
taped, recorded, or graphic matters; any exhibits, attachments, or schedules to or with
the foregoing; any drafts of the foregoing; and any copies or duplicates of the foregoing
that are different because of marginal or handwritten notations, or because of any
markings thereon or alterations thereof.

       2.    All electronically stored information should be produced as an electronic
copy, preserving all metadata.

                                                4

Exhibit R                                                                       App. 177
       3.    Throughout this request (including these definitions and instructions), the
term “communications” means any and all of the following: writings, oral
communications, electronic communications (including emails, text messages, and
instant messages), wire communications, conversations by telephone, meetings, and
any contact, oral or written, formal or informal, at any time or place, and under any
circumstance whatsoever, in which information of any nature was transmitted or
exchanged in any form or by any medium.

       4.     Throughout this request (including these definitions and instructions), the
phrases “relating to,” “relates to,” “related to,” "regarding," and “in relation to” mean
constituting or evidencing, and directly or indirectly mentioning, describing, referring
to, pertaining to, being connected with, reflecting upon, or concerning the stated subject
matter.

      5.    Throughout this request (including these definitions and instructions), the
words “any” and “all” shall be considered to include “each” and “each and every.”

       6.     Throughout this request (including these definitions and instructions), the
singular of any word shall include the plural, and the plural of any word shall include
the singular. The masculine form shall include the feminine and neutral forms. The
terms “and” and “or” shall mean “and/or” inclusively.

       7.     Throughout this request (including these definitions and instructions), the
terms “you” and “your” refer to the party responding to the request, as well as his, her,
or its present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on behalf of or
under the control of the responding party.

       8.      Throughout this request (including these definitions and instructions),
“Defendant” and “Frisco” mean 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian
Steakhouse, a named defendant in this matter. The term “Defendant” or “Frisco” also
includes Defendant’s present and former agents, employees, counselors, consultants,
representatives, attorneys, and any other person or entity acting or purporting to act on
its behalf or under its control.

       9.     Throughout this request (including these definitions and instructions), the
term “Plaintiff” or “Plaintiffs” means any named Plaintiff in this matter, including their
present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on its behalf or
under their or its control.

      10.   Throughout this request (including these definitions and instructions),
“Los Cucos” means Los Cucos Mexican Café VIII, Inc. and Los Cucos Mexican Café IV,

                                               5

Exhibit R                                                                      App. 178
Inc., named defendants in this matter and includes any present and former agents,
employees, counselors, consultants, affiliates, subsidiaries, representatives, attorneys,
and/or any other person or entity acting or purporting to act on the behalf or under the
control of Los Cucos.

       11.   If you contend that any document requested here need not be produced
under a privilege or other protection against disclosure, provide an itemized log of the
document(s) being withheld from production. In the log, specify the date of each such
document, its author(s), all recipient(s), and any person(s) copied on the document, the
paragraph of this request to which the document responds, and a brief description of
the document’s contents that supplies enough detail to assess the applicability of the
privilege or protection being claimed. In addition, please specify the privilege or
protection upon which you rely as their basis for withholding the document(s) from
production.

      12.    If you intend to produce any electronic document or information in
response to this request, please contact counsel for Los Cucos to discuss the form in
which such electronic document or information will be produced.

      13.   If you have any questions about this request, please contact counsel for
Los Cucos promptly for clarification.

       14.     Unless otherwise stated, the time period covered by this request is January
1, 2010 to the present.

      15.    You are reminded of your duty under Rule 193.5, Tex. R. Civ. P., to amend
or supplement any response that was incomplete or incorrect when made or that,
although correct and complete when made, is no longer complete and correct.




                                               6

Exhibit R                                                                      App. 179
                               REQUESTS FOR ADMISSIONS

Admit or deny the following:
      Admission No. 1. 8650 Frisco, LLC received money from Los Cucos Mexican
Café VIII, LLC.
      Admission No. 2. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as a loan.

      Admission No. 3. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as an investment.

      Admission No. 4. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe VIII, LLC.

       Admission No. 5. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe VIII, LLC.

       Admission No. 6. 8650 Frisco, LLC received money from Los Cucos Mexican
Cafe IV, LLC.

      Admission No. 7. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe IV, LLC as a loan.

      Admission No. 8. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VI, LLC as an investment.

      Admission No. 9. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe IV, LLC.

       Admission No. 10. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe IV, LLC.

      Admission No. 11. 8650 Frisco, LLC received money from Manuel Cabrera.

      Admission No. 12. 8650 Frisco, LLC intended to treat the money it received
from Manuel Cabrera as a loan.

       Admission No. 13. Admit that 8650 Frisco, LLC intended to treat the money it
received from Manuel Cabrera as an investment.

      Admission No. 14. 8650 Frisco, LLC intended to repay the money it received
from Manuel Cabrera.

                                            7

Exhibit R                                                                App. 180
       Admission No. 15. 8650 Frisco, LLC did not intend to repay the money it
received from Manuel Cabrera.

      Admission No. 16. 8650 Frisco, LLC received money from Sergio Cabrera.

      Admission No. 17. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as a loan.

      Admission No. 18. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as an investment.

      Admission No. 19. 8650 Frisco, LLC intended to repay the money it received
from Sergio Cabrera.

       Admission No. 20. 8650 Frisco, LLC did not intend to repay the money it
received from Sergio Cabrera.

      Admission No. 21. 8650 Frisco, LLC received equipment from Los Cucos
Mexican Cafe IV, LLC.

       Admission No. 22. 8650 Frisco, LLC received furniture from Los Cucos Mexican
Cafe IV, LLC.

      Admission No. 23. 8650 Frisco, LLC is currently using equipment it received
from Los Cucos Mexican Cafe IV, LLC.

      Admission No. 24. 8650 Frisco, LLC is currently using furniture it received from
Los Cucos Mexican Cafe IV, LLC.

      Admission No. 25. 8650 Frisco, LLC is currently using equipment paid for by
from Los Cucos Mexican Cafe IV, LLC.

      Admission No. 26. 8650 Frisco, LLC is currently using furniture paid for by Los
Cucos Mexican Cafe IV, LLC.

      Admission No. 27. 8650 Frisco, LLC did not pay Los Cucos Mexican Cafe IV,
LLC for any equipment or furniture.

      Admission No. 28. Los Cucos Mexican Cafe IV, LLC did not gift furniture to
8650 Frisco, LLC.



                                             8

Exhibit R                                                                  App. 181
      Admission No. 29. Los Cucos Mexican Cafe VIII, LLC did not gift money to
8650 Frisco, LLC.

       Admission No. 30. Admit that Manuel Cabrera did not gift money to 8650
Frisco, LLC.

      Admission No. 31. Sergio Cabrera did not gift money to 8650 Frisco, LLC.

      Admission No. 32. 8650 Frisco, LLC is currently operating at a net profit.

      Admission No. 33. 8650 Frisco, LLC is currently operating at a new loss.

       Admission No. 34. 8650 Frisco, LLC is currently using the name Estilo Goucho
Brazilian Steakhouse.

       Admission No. 35. 8650 Frisco, LLC is has been using the name Estilo Goucho
Brazilian Steakhouse since February, 2013.

      Admission No. 36. 8650 Frisco, LLC has assigned, in writing, its rights to the
mark Estilo Gaucho Bazilian Steakhouse to Bahtche, LLC.

      Admission No. 37. 8650 Frisco, LLC has not assigned, in writing, its rights to the
mark Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.

      Admission No. 38. 8650 Frisco, LLC has received compensation from Bahtche,
LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.

      Admission No. 39. 8650 Frisco, LLC has not received compensation from
Bahtche, LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.

       Admission No. 40. Estilo Gaucho Brazilian Steakhouse is a trade name of 8650
Frisco, LLC.

      Admission No. 41. 8650 Frisco, LLC does business as Estilo Gaucho Brazilian
Steakhouse.




                                              9

Exhibit R                                                                    App. 182
                                Requests for Production
       Request No. 1. Produce all documents and records provided to or received from
8650 Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA,
Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650
Frisco, LLC.

       Request No. 2. Produce all documents and records in the possession of 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.

       Request No. 3. Produce all financial records of 8650 Frisco, LLC.

       Request No. 4. Produce all accounting records of 8650 Frisco, LLC.

       Request No. 5. Produce all bank statements of 8650 Frisco, LLC.

       Request No. 6. Produce all point of sale data and reports related to 8650 Frisco,
LLC.

       Request No. 7. Produce all tax records (including all 1099 forms, W-2 forms, and
K-1 forms) related to 8650 Frisco, LLC.

       Request No. 8. Produce all communications and correspondence with 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.

       Request No. 9. Produce all payroll records for 8650 Frisco, LLC.

      Request No. 10. Produce all records of money received from any Plaintiff in this
lawsuit.

        Request No. 11. Produce all records of money paid or distributed to any Plaintiff
in this lawsuit.

       Request No. 12. Produce all correspondence and communications with each
Plaintiff in this lawsuit.

      Request No. 13. Produce all agreements, including all drafts of agreements,
between the Parties, which relate in any way to 8650 Frisco, LLC.



                                              10

Exhibit R                                                                     App. 183
      Request No. 14. Produce all leases and related documents (e.g., guarantees),
which relate to the premises currently occupied by 8650 Frisco, LLC.

       Request No. 15. Produce all records of financial transactions between 8650
Frisco, LLC and Claudio Nunes.

       Request No. 16. Produce all records of financial transactions between 8650
Frisco, LLC and David Jeiel Rodrigues.

      Request No. 17. Produce all corporate records of 8650 Frisco, LLC.

      Request No. 18. Produce quarterly and annual profit and loss statements for
8650 Frisco, LLC from its creation through the present (update quarterly through trial).

       Request No. 19. Produce quarterly and annual balance sheet statements for 8650
Frisco, LLC from its creation through the present (update quarterly through trial).

       Request No. 20. Produce all communications and correspondence related to any
of the Plaintiffs in this lawsuit.

       Request No. 21. Produce all records of cash receipts and cash deposits for 8650
Frisco, LLC.

       Request No. 22. Produce all records, including invoices, for all equipment and
furniture purchased for use by 8650 Frisco, LLC.

       Request No. 23. Produce all documents which reflect or relate to the application
to the United States Patent and Trademark office for the mark Estilo GAucho Brazilian
Steakhouse.

     Request No. 24. Produce the assignment of ownership rights for the mark Estilo
Gaucho Brazilian Steakhouse to Bahtche, LLC.

       Request No. 25. Produce documents reflecting the exchange of compensation by
and between 8650 Frisco, LLC and Bahtche, LLC, related to the mark Estilo Gaucho
Brazilian Steakhouse.




                                              11

Exhibit R                                                                    App. 184
                           FIRST SET OF INTERROGATORIES

      Interrogatory No. 1. Identify and explain in detail the terms upon which Los
Cucos Mexican Cafe VIII, LLC provided money to 8650 Frisco, LLC.

      Interrogatory No. 2. If you contend that the money provided to 8650 Frisco, LLC
by Los Cucos Mexican Cafe VIII, LLC was a loan, describe in detail the basis of that
contention and terms of the loan.

       Interrogatory No. 3. If you contend that they money provided to 8650 Frisco,
LLC by Los Cucos Mexican Cafe VIII, LLC was an investment, describe in detail the
basis of that contention and terms of the investment.

       Interrogatory No. 4. Identify and describe in detail the equipment and
furnishings provided to 8650 Frisco, LLC by Los Cucos Mexican Cafe, IV.

       Interrogatory No. 5. If you contend that the parties had an agreement as to 8650
Frisco, LLC’s use of the equipment and furniture provided to 8650 Frisco, LLC by Los
Cucos Mexican Cafe, IV, identify and describe in detail the basis of that contention and
terms of the agreement.

      Interrogatory No. 6. Identify and describe in detail the source, date of purchase,
and cost of all equipment and furnishings used at 8650 Frisco, LLC.

       Interrogatory No. 7. Detail the circumstances and terms under which the mark
Estilo Gaucho Brazilian Steakhouse was transferred to Bahtche, LLC.




                                              12

Exhibit R                                                                    App. 185
                       CAUSE NO. 2014-1 0896
 LOS CUCOS MEXICAN CAFE        § IN THE DISTRICT COURT OF
 VIII, INC., LOS CUCOS         §
 MEXICAN CAFE IV, INC.,        §
 MANUEL CABRERA, and           §
 SERGIO CABRERA                §
 PLAINTIFFS,                   §
                                   §
 v.                                §   HARRIS COUNTY, TEXAS
                                   §
 8650 FRISCO, LLC d/b/a            §
 ESTILO GAUCHO BRAZILIAN           §
 STEAKHOUSE,MANDON~                §
 LLC, GALOVELHO, LLC,              §
 BAHTCHE, LLC, CLAUDIO             §
 NUNES and DAVID JEIEL             §
 RODRIGUES                         §
 DEFENDANTS.                       §   133rd JUDICIAL DISTRICT

       DEFENDANT'S RESPONSE TO PLAINTIFF'S FIRST SET OF
                     INTERROGATORIES

To: Plaintiffs, Los Cucos Mexican Cafe VIII, Inc., Los Cucos Mexican
Cafe IV, Inc., Manuel Cabrera, and Sergio Cabrera, by and through their
attorney of record, Kelly Stephens, P.O. Box 79734, Houston, Texas
77279.

Defendant, 8650 Frisco LLC, serves these answers to Plaintiff's
interrogatories.

                 RESPONSES TO INTERROGATORIES

Interrogatory No. 1: Identify and explain in detail the terms upon which
Los Cucos Mexican Cafe VIII, LLC provided money to 8650 Frisco, LLC.

ANSWER: "Los Cucos Mexican Cafe VIII, LLC" provided no money to
8650 Frisco LLC.

Interrogatory No. 2: If you contend that the money provided to 8650
Frisco, LLC by Los Cucos Mexican Cafe VIII, LLC was a loan, describe in



Exhibit R                          EXHIBIT 2                   App. 186
detail the basis of that contention and terms of the loan.

ANSWER: Not applicable.

Interrogatory No. 3: If you contend that they money provided to 8650
Frisco, LLC by Los Cucos Mexican Cafe VIII, LLC was an investment,
describe in detail the basis of that contention and terms of the investment.

ANSWER: Not applicable.

Interrogatory No. 4: Identify and describe in detail the equipment and
furnishings provided to 8650 Frisco, LLC by Los Cucos Mexican Cafe IV.

ANSWER: OBJECTION: Defendant 8650 Frisco LLC objects to this
request as it is vague and lacks specificity. Subject to this objection and
without waiving same, Defendant 8650 Frisco LLC responds as follows:
None.

Interrogatory No. 5: If you contend that the parties had an agreement as
to 8650 Frisco, LLC's use of the equipment and furniture provided to 8650
Frisco, LLC by Los Cucos Mexican Cafe, IV, describe in detail the basis
of that contention and terms of the agreement.

ANSWER: OBJECTION: Defendant 8650 Frisco LLC objects to this
request as it is vague and lacks specificity. Subject to this objection and
without waiving same, Defendant 8650 Frisco LLC responds as follows:
None.

Interrogatory No. 6: Identify and describe in detail the source, date of
purchase, and cost of all equipment and furnishings used at 8650 Frisco,
LLC.

ANSWER: OBJECTION: Defendant 8650 Frisco LLC objects to this
requests as it is overly broad, exceeds the scope of this litigation, unduly
burdensome, harassing, vague, and is not likely to lead to admissible
evidence. 8650 Frisco LLC utilizes hundreds if not thousands of different
objects which could be classified as either "equipment" or "furnishings" as
commonly defined by Webster's dictionary. Furthermore, Plaintiff does not
describe what cost method he wishes to utilize in the calculation of the
"cost" of the equipment or furnishings. Cost can be interpreted as



Exhibit R                                                          App. 187
 replacement cost, initial purchase cost, or actual cash value. Defendant
 further objects as, this request is an improper interrogatory and therefore
 this is improper procedure. Defendant further objects as the costs
 associated with analyzing every nut and bolt of the operation and preparing
 a list of the source and cost would greatly exceed any benefit derived from
 the creation of the list. These costs are not justified given the documents
 produced by Plaintiffs at the Temporary Injunction hearing, and the
 invoices testified to by Hal Holtman stating the exact cost of the
 complained of equipment and the exact amount of the alleged investments.

 Interrogatory No. 7: Detail the circumstances and terms under which the
 mark Estilo Gaucho Brazilian Steakhouse was transferred to Bahtche, LLC.

ANSWER: OBJECTION: Defendant 8650 Frisco LLC objects to this
request as it is vague, overly broad, and will not lead to discovery of
admissible evidence. Subject to this objection and without waiving the
same, the events as described by Plaintiffs in Interrogatory Number 7 did
not occur.

Respectfully submitted, MOSSER LAW PLLC,


By· lsi .lames C Masser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
Benjamin Casey
Texas Bar No. 24087267
17110 Dallas Parkway Suite 290
Dallas, TX 75248
Tel. (972) 733-3223
Fax. (972) 267-5072
courtdocuments@mosserlaw.com
Lawyers for Defendants




Exhibit R                                                         App. 188
                       CERTIFICATE OF SERVICE

I certify that on May 14, 2014, a true and correct copy of this document was
served to the following pursuant to Texas Rules of Civil Procedure 21 &
21 (a).

Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460


lsi Nicholas D Mosser
By: Nicholas D. Mosser




Exhibit R                                                         App. 189
                                 CAUSE NO. 2014-10896
                                         § IN THE DISTRICT COURT OF
  ~LOS CUCOS MEXICAN CAFE VJII,              §
  siNC., LOS CUCOS MEXICAN CAFE IV,
   INC•• MANUEL CABRERA, and                 §
   SERGIO CABRERA                            §
                                             §
   PLAINTIFFS,                               §
                                             §
   v.                                        §   HARRIS COUNTY, TEXAS


   8650 FRISCO, LLC dlb/a ESTILO
   GAUCHO BRAZILIAN STEAKHOUSE,
   MANDONA, LLC, GALOVELHO, LLC,
   BAHTCHE, UC, CLAUDIO NUNES
   and DAVID JEIEL RODRIGUES

   DEFENDANTS.                               §   133rd JUDICIAL DISTRICT

                   UNSWORN DECLARATION OF 8650 FRISCO. LLC

   1.   I am a member of Mandona, LLC, the manager of 8650 Frisco, LLC.

   2.   I have read 8650 Frisco, LLC'S Response to Plaintiffs First Set of
        Interrogatories. The factual responses stated therein are true and correct and
        within my personal knowledge.

   3.   My name is David Jeiel Rodrigues, member of Mandona, LLC. the manager of
        8650 Frisco,LLC, my date ofbirth Is May 17, 1981 and my address is 8650
        State Highway 121, Frisco. Texas 75034. I declare under penalty of perjury that
        the foregoing is true and corTect.

  Executed In Collin County. State of Texas, on May 14,2014.



        ~~'
  DaVid JeJel Ro~ ,
  member of Mandona. LLC.
  as manager of 8650 Frisco, LLC




Exhibit R                                                                      App. 190
                        CAUSE NO. 2014-10896
  LOS CUCOS MEXICAN CAFE        § IN THE DISTRICT COURT OF
  VIII, INC., LOS CUCOS MEXICAN §
  CAFE IV, INC., MANUEL         §
  CABRERA, and SERGIO           §
  CABRERA                       §
  PLAINTIFFS,                   §
                                       §
  v.                                   §   HARRIS COUNTY, TEXAS
                                       §
  8650 FRISCO, LLC d/b/a ESTILO        §
  GAUCHO BRAZILIAN                     §
  STEAKHOUSE,MANDON~                   §
  LLC, GALOVELHO, LLC,                 §
  BAHTCHE, LLC, CLAUDIO                §
  NUNES and DAVID JEIEL                §
  RODRIGUES                            §
  DEFENDANTS.                          §
                                  133rd JUDICIAL DISTRICT
                   DEFENDANT'S ANSWERS TO
           PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS

  To: Plaintiffs, Los Cucos Mexican Cafe VIII, Inc., Los Cucos Mexican Cafe IV,
  Inc., Mnuel Cabrera, and Sergio Cabrera, by and through their attorney of
  record, Kelly Stephens, P.O. Box 79734, Houston, Texas 77279.

  Defendants, 8650 Frisco, LLC, serves these responses to Plaintiff's requests
  for admissions.

                        RESPONSES TO ADMISSIONS

 Admission No.1: 8650 Frisco, LLC received money from Los Cucos Mexican
 Cafe VIII, LLC.

  RESPONSE: DENY

 Admission No.2: 8650 Frisco, LLC intended to treat the money it received
 from Los Cucos Mexican Cage VIII, LLC as a loan.

 RESPONSE: DENY




Exhibit R                                                             App. 191
  Admission No. 3: 8650 Frisco, LLC intended to treat the money it received
  from Los Cucos Mexican Cafe VIII, LLC as an investment.

  RESPONSE: DENY
  Admission No. 4: 8650 Frisco, LLC intended to repay the money it received
  from Los Cucos Mexican Cafe VIII, LLC.

  RESPONSE: DENY
  Admission No. 5: 8650 Frisco, LLC did not intend to repay the money it
  received from Los Cucos Mexican Cafe VIII, LLC.

  RESPONSE: DENY
  Admission No.6: 8650 Frisco, LLC received money from Los Cucos Mexican
  Cafe IV, LLC.

  RESPONSE: DENY
  Admission No. 7: 8650 Frisco, LLC intended to treat the money it received
  from Los Cucos Mexican Cafe IV, LLC as an investment.

  RESPONSE: DENY
  Admission No. 8: 8650 Frisco, LLC intended to treat the money it received
  from Los Cucos Mexican Cafe VI, LLC as an investment.

  RESPONSE: DENY
  Admission No. 9: 8650 Frisco, LLC intended to repay the money it received
  from Los Cucos Mexican Cafe IV, LLC.

  RESPONSE: DENY
  Admission No. 10: 8650 Frisco, LLC did not intend to repay the money it
  received from Los Cucos Mexican Cafe IV, LLC.

  RESPONSE: DENY




Exhibit R                                                         App. 192
  Admission No. 11: 8650 Frisco, LLC received money from Manuel Cabrera.

   RESPONSE: DENY
  Admission No. 12: 8650 Frisco, LLC intended to treat the money it received
  from Manuel Cabrera as a loan.

  RESPONSE: DENY
  Admission No. 13: 8650 Frisco, LLC intended to treat the money it received
  from Manuel Cabrera as an investment.

  RESPONSE: DENY
  Admission No. 14: 8650 Frisco, LLC intended to repay the money it received
  from Manuel Cabrera.

  RESPONSE: DENY
  Admission No. 15: 8650 Frisco, LLC did not intend to repay the money it
  received from Manuel Cabrera.

  RESPONSE: DENY
  Admission No. 16: 8650 Frisco, LLC received money from Sergio Cabrera.

  RESPONSE: DENY
  Admission No. 17: 8650 Frisco, LLC intended to treat the money it received
  from Sergio Cabrera as a loan.

  RESPONSE: DENY
  Admission No. 18: 8650 Frisco, LLC intended to treat the money it received
  from Sergio Cabrera as an investment.

  RESPONSE: DENY
  Admission No. 19: 8650 Frisco, LLC intended to repay the money it received
  from Sergio Cabrera.




Exhibit R                                                          App. 193
  RESPONSE: DENY
  Admission No. 20: 8650 Frisco, LLC did not intend to repay the money it
  received from Sergio Cabrera.

  RESPONSE: DENY
  Admission No. 21: 8650 Frisco, LLC received equipment from Los Cucos
  Mexican Cafe IV, LLC.

  RESPONSE: DENY
  Admission No. 22: 8650 Frisco, LLC received furniture from Los Cucos
  Mexican Cafe IV, LLC.

  RESPONSE: DENY
  Admission No. 23: 8650 Frisco, LLC is currently using equipment it received
  from Los Cucos Mexican Cafe IV, LLC.

  RESPONSE: DENY
  Admission No. 24: 8650 Frisco, LLC is currently using furniture it received
  from Los Cucos Mexican Cafe IV, LLC.

  RESPONSE: DENY
  Admission No. 25: 8650 Frisco, LLC is currently using equipment paid for by
  Los Cucos Mexican Cafe IV, LLC.

  RESPONSE: DENY
  Admission No. 26: 8650 Frisco, LLC is currently using furniture paid for by
  Los Cucos Mexican Cafe IV, LLC.

  RESPONSE: DENY
  Admission No. 27: 8650 Frisco, LLC did not pay Los Cucos Mexican Cafe
  IV, LLC for any equipment or furniture.




Exhibit R                                                           App. 194
  RESPONSE: ADMIT

  Admission No. 28: Los Cucos Mexican Cafe IV, LLC did not gift furniture to
  8650, LLC.

  RESPONSE: ADMIT

  Admission No. 29: Los Cucos Mexican Cafe VIII, LLC did not gift money to
  8650 Frisco, LLC.

  RESPONSE: ADMIT

  Admission No. 30: Admit that Manuel Cabrera did not gift money to 8650
  Frisco, LLC.

  RESPONSE: ADMIT

  Admission No. 31: Sergio Cabrera did not gift money to 8650 Frisco, LLC.

  RESPONSE: ADMIT

  Admission No. 32: 8650 Frisco, LLC is currently operating at a net profit.

  RESPONSE: ADMIT

  Admission No. 33: 8650 Frisco, LLC is currently operating at a new loss.

  RESPONSE: DENY

  Admission No. 34: 8650 Frisco, LLC is currently using the name Estilo
  Gaucho Brazilian Steakhouse.

  RESPONSE: OBJECTION. Defendant objects to this request because it is
  vague and ambiguous. Specifically, it is not clear what is meant by the phrase,
  "using the name."

  Admission No. 35: 8650 Frisco, LLC has been using the name Estilo Gaucho
  Brazilian Steakhouse since February, 2013.

  RESPONSE: OBJECTION. Defendant objects to this request because it is




Exhibit R                                                              App. 195
  vague and ambiguous. Specifically, it is not clear what is meant by the phrase,
  "using the name."


  Admission No. 36: 8650 Frisco, LLC has assigned, in writing, its rights to the
  mark Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.

  RESPONSE: DENY

  Admission No. 37: 8650 Frisco, LLC has not assigned, in writing, its rights
  to the mark Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.

  RESPONSE: ADMIT

  Admission No. 38: 8650 Frisco, LLC has received compensation from
  Bahtche, LLC for the ownership of the mark Estilo Gaucho Brazilian
  Steakhouse.

  RESPONSE: DENY

  Admission No. 39: 8650 Frisco, LLC has not received compensation from
  Bahtche, LLC for the ownership of the mark Estilo Gaucho Brazilian
  Steakhouse.

  RESPONSE: ADMIT

  Admission No. 40: Estilo Gaucho Brazilian Steakhouse is a trade name of
  8650 Frisco, LLC.

  RESPONSE: ADMIT

  Admission No. 41: 8650 Frisco, LLC does business as Estilo Gaucho
  Brazilian Steakhouse.

  RESPONSE: ADMIT

  Respectfully submitted, MOSSER LAW PLLC,

 By· lsi Nicholas D Mosser
 James C. Mosser




Exhibit R                                                              App. 196
  Texas Bar No. 00789784
  Nicholas D. Mosser
  Texas Bar No. 24075405
  Benjamin Casey
  Texas Bar No. 24087267
  17110 Dallas Parkway Suite 290
  Dallas, TX 75248
  Tel. (972) 733-3223
  Fax. (972) 267-5072
  courtdocuments@mosserlaw.com
  Lawyers for Defendants

                          CERTIFICATE OF SERVICE

  I certify that on May 14, 2014, a true and correct copy of this document was
  served to the following pursuant to Texas Rules of Civil Procedure 21 & 21 (a).

  Kelly Stephens
  P.O. Box 79734
  Houston, Texas 77279
  Telephone: 1-281-394-3287
  Facsimile: 1-832-476-5460



  Nicholas D. Mosser
  By: Nicholas D. Mosser




Exhibit R                                                              App. 197
                        CAUSE NO. 2014-10896
  LOS CUCOS MEXICAN CAFE        § IN THE DISTRICT COURT OF
  VIII, INC., LOS CUCOS MEXICAN §
  CAFE IV, INC., MANUEL         §
  CABRERA, and SERGIO           §
  CABRERA                       §
  PLAINTIFFS,                   §
                                       §
  V.                                   § HARRIS COUNTY, TEXAS
                                       §
  8650 FRISCO, LLC d/b/a ESTILO        §
  GAUCHO BRAZILIAN                     §
  STEAKHOUSE,MANDON~                   §
  LLC,GALOVELHO,LLC,                   §
  BAHTCHE, LLC, CLAUDIO                §
  NUNES and DAVID JEIEL                §
  RODRIGUES                            §
  DEFENDANTS.                          § 133rd JUDICIAL DISTRICT
          DEFENDANT 8650 FRISCO LLC'S RESPONSES TO
          PLAINTIFF'S FIRST REQUEST FOR PRODUCTION

  To: Plaintiffs, Los Cucos Mexican Cafe VIII, Inc., Los Cucos Mexican Cafe IV,
  Inc., Manuel Cabrera, and Sergio Cabrera, by and through their attorney of
  record, Kelly Stephens, P.O. Box 79734, Houston, Texas 77279.

  Defendants, 8650 Frisco, LLC, serves these responses to Plaintiff's request
  for production.

                         RESPONSES TO REQUESTS

  Request No. 1: Produce all documents and records provided to or received
  from 8650 Frisco, LLC's accountants (including, but not limited to Mike
  Verucchi, CPA, Holtmann & Company, LLC, or Hal Holtman, CPA), which
  relate in any way to 8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request seeks
  information that is privileged. See Tex. Occ. Code § 901.457(a); see also
  O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
  foregoing objection, and without waiving the same, documents responsive to




Exhibit R                                                            App. 198
  this request are being produced.

  Request No.2: Produce all documents and records in the possession of 8650
  Frisco, LLC's accountants (including, but not limited to Mike Verucchi, CPA,
  Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to
  8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request seeks
  information that is privileged. See Tex. Occ. Code § 901.457(a); see also
  O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
  foregoing objection, and without waiving the same, documents responsive to
  this request are being produced.


  Request No. 3: Produce all financial records of 8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overly
  broad and seeks information that is not relevant to this matter. Defendant
  further objects as this request is not narrowly tailored to a specific time, scope
  or subject matter. Subject to the foregoing objection, and without waiving the
  same, relevant documents responsive to this request will we produced as
  requested.

  Request No.4: Produce all accounting records of 8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request seeks
  information that is privileged. See Tex. Occ. Code § 901.457(a); see also
  O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
  foregoing objection, and without waiving the same, documents responsive to
  this request are being produced.


  Request No. 5: Produce all bank statements of 8650 Frisco, LLC.

 RESPONSE:
 OBJECTION. Defendant objects on the grounds that this request is overbroad
 and seeks information that is not relevant to this matter. Defendant objects to




Exhibit R                                                                 App. 199
  this request as it is an improper method to request records of a financial
  institution. Tex. Fin. Code § 59.006.

  Request No. 6: Produce all point of sale data and reports related to 8650
  Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects as this information contains information related to customer's accounts
  and disclosure would subject Defendant to liability from customers whose data
  was released.

  Request No.7: Produce all tax records (including all1 099 forms, W-2 forms,
  and K-1 forms) related to 8650 Frisco, LLC.

  RESPONSE: OBJECTION. Defendant objects to this request as it is
  harassing, irrelevant, and confidential by statute. 26 USC §61 03.

  Request No.8: Produce all communications and correspondence with 8650
  Frisco, LLC's accountants (including, but not limited to Mike Verucchi, CPA,
  Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to
  8650 Frisco, LLC.

   RESPONSE:
   OBJECTION. Defendant objects on the grounds that this request seeks
 · information that is privileged. See Tex. Occ. Code § 901.457(a); see also
   O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
   foregoing objection, without waiving the same, documents responsive to this
   request are being produced.

  Request No. 9: Produce all payroll records for 8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects to this request as it seeks confidential information related to third
  parties and is only being requested for harassment purposes.

  Request No. 10: Produce all records of money received from any Plaintiff in




Exhibit R                                                              App. 200
  this lawsuit.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that documents sought relate
  to information that is already available to Plaintiff and is in plaintiffs
  possession, custody, and control.

  Request No. 11: Produce all records of money paid or distributed to any
  Plaintiff in this lawsuit.

  RESPONSE:
  None.

  Request No. 12: Produce all correspondence and communications with each
  Plaintiff in this lawsuit.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Further, the
  documents requested can be easily obtained by Plaintiff as Plaintiff is aware
  of all correspondence and communication with Defendant. Plaintiffs were
  parties to any communication between Plaintiffs and Defendants. Subject to
  the foregoing objection, and without waiving the same, relevant documents
  responsive to this request will we produced as requested.

  Request No. 13: Produce all agreements, including all drafts of agreements,
  between the Parties, which relate in any way to 8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects as this information is work product and privileged. Furthermore,
  Defendant objects to this request as any alleged agreements are in the
  possession of Plaintiffs and may easily be obtained by Plaintiffs through a
  search of their own records. Subject to the foregoing objection, and without
  waiving the same, relevant documents responsive to this request will we
  produced as requested.


  Request No. 14: Produce all leases and related documents (e.g.,




Exhibit R                                                             App. 201
  guarantees), which relate to the premises currently occupied by 8650 Frisco,
  LLC.

  RESPONSE:
  Subject to the foregoing objection, and without waiving the same, relevant
  documents responsive to this request will we produced as requested.


  Request No. 15: Produce all records of financial transactions between 8650
  Frisco, LLC and Claudio Nunes.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects to this request as it is not narrowly tailored and fails to define the
  request in terms of scope, subject matter, or time.

  Request No. 16: Produce all records of financial transactions between 8650
  Frisco, LLC and David Jeiel Rodrigues.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects to this request as it is not narrowly tailored and fails to define the
  request in terms of scope, subject matter, or time.

  Request No. 17: Produce all corporate records of 8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects to this request as it is confidential. Subject to the foregoing objection,
  and without waiving the same, relevant documents responsive to this request
  will we produced as requested.


 Request No. 18: Produce quarterly and annual profit and loss statements for
 8650 Frisco, LLC from its creation through the present (update quarterly
 through trial).




Exhibit R                                                                 App. 202
  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant objects to
  this request as it exceeds duty imposed on Defendant under Tex. R. Civ. P.
  196.1 & 192.3.

  Request No.19: Produce quarterly and annual balance sheet statements for
  8650 Frisco, LLC from its creation through the present (update quarterly
  through trial).

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant objects to
  this request as it exceeds duty imposed on Defendant under Tex. R. Civ. P.
  196.1 & 192.3.

  Request No. 20: Produce all communications and correspondence related to
  any of the Plaintiffs in this lawsuit.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is duplicative
  of request for production no. 12. Defendant further objects as this request is
  vague, overly burdensome, lacks specificity, fails to limit the request based
  upon time, scope, or subject matter. Defendant further objects as this request
  will not result in discoverable information. Defendant further objects as this
  request seeks to invade the attorney client privilege.

  Request No. 21: Produce all records of cash receipts and cash deposits for
  8650 Frisco, LLC.

 RESPONSE:
 OBJECTION. Defendant objects on the grounds that this request is overbroad
 and seeks information that is not relevant to this matter. Defendant further
 objects as this request is overly burdensome, harassing and will not result in
 production of discoverable information. Subject to the foregoing objection, and
 without waiving the same, relevant documents responsive to this request will
 we produced as requested.

 Request No. 22: Produce all records, including invoices, for all equipment
 and furniture purchased for use by 8650 Frisco, LLC.




Exhibit R                                                               App. 203
  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects to this request as it is vague, lacks specificity, and is not narrowly
  tailored by time, scope or subject matter. Defendant further objects to this
  request as it is overly burdensome to require Defendant to scour its records
  for every purchase of nuts, bolts, bottles, cans, and bottle openers that it may
  have acquired during the operation of the restaurant. Subject to the foregoing
  objection, and without waiving the same, relevant documents responsive to
  this request will we produced as requested.

  Request No. 23: Produce all documents which reflect or relate to the
  application to the United States Patent and Trademark office for the mark
  Estilo Gaucho Brazilian Steakhouse.

  RESPONSE:
  None.

  Request No. 24: Produce the assignment of ownership rights for the mark
  Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.

  RESPONSE:
  None.

  Request No. 25: Produce all documents reflecting the exchange of
  compensation by and between 8650 Frisco, LLC and Bahtche, LLC, related
  to the mark Estilo Gaucho Brazilian Steakhouse.

  RESPONSE:
  None.


  Respectfully submitted, MOSSER LAW PLLC,


  By· lsi Nicholas D Masser
 James C. Mosser
 Texas Bar No. 00789784
 Nicholas D. Mosser




Exhibit R                                                               App. 204
  Texas Bar No. 24075405
  Benjamin Casey
  Texas Bar No. 24087267
  17110 Dallas Parkway Suite 290
  Dallas, TX 75248
  Tel. (972) 733-3223
  Fax. (972) 267-5072
  courtdocuments@mosserlaw.com
  Lawyers for Defendants

                          CERTIFICATE OF SERVICE

  I certify that on May 14, 2014, a true and correct copy of this document was
  served to the following pursuant to Texas Rules of Civil Procedure 21 & 21 (a).

  Kelly Stephens
  P.O. Box 79734
  Houston, Texas 77279
  Telephone: 1-281-394-3287
  Facsimile: 1-832-476-5460

  Is/ Nicholas D. Mosser
  By: Nicholas D. Mosser




Exhibit R                                                               App. 205
                                  CAUSE NO. 2014-10896


LOS CUCOS MEXICAN CAFÉ VIII,  §                    IN THE DISTRICT COURT OF
INC., LOS CUCOS MEXICAN CAFÉ’ §
IV, INC., MANUEL CABRERA, and §
SERGIO CABRERA                §
                              §
           Plaintiffs,        §
                              §
VS.                           §                    HARRIS COUNTY, TEXAS
                              §
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES   §
and DAVID JEIEL RODRIGUES     §
                              §
           Defendants.        §                    133rd JUDICIAL DISTRICT


     PLAINTIFFS’ NOTICE OF INTENT TO TAKE THE ORAL AND VIDEOTAPED DEPOSITION
                            OF DEFENDANT CLAUDIO NUNES


       Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel

Cabrera and Sergio Cabrera will take the oral deposition of Claudio Nunes, on Monday,

June 9, 2014, at 9:00 a.m., at the law offices of HAWASH MEADE GASTON NEESE & CICACK LLP,

2118 Smith Street, Houston, Texas 77002.

       The deposition will continue from day to day until completed.

       The deposition will be recorded stenographically and on videotape. The stenographic

recording will be conducted by Gulfstream Legal Court Reporting.




                                             EXHIBIT 3
Exhibit R                                                                        App. 206
            Respectfully submitted,

            STEPHENS & DOMNITZ, PLLC

            /s/ Kelly D. Stephens
            Kelly D. Stephens
            SBN: 19158300
            P.O. Box 79734
            Houston, Texas 77279-9734
            Tel: 281-394-3287
            Fax: 832-476-5460
            kstephens@stephensdomnitz.com


            HAWASH MEADE GASTON NEESE &
            CICACK LLP


             /s/ Andrew K. Meade
            Andrew K. Meade
            State Bar No. 24032854
            Jeremy M. Masten
            State Bar No. 24083454
            2118 Smith Street
            Houston, Texas 77002
            713-658-9006 (Direct & Fax)
            ameade@hmgllp.com
            jmasten@hmgllp.com

            ATTORNEYS FOR PLAINTIFFS
            LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
            LOS CUCOS MEXICAN CAFÉ IV, Inc.,
            MANUEL CABRERA, and
            SERGIO CABRERA




               2

Exhibit R                                   App. 207
                             CERTIFICATE OF SERVICE

       A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on May 12, 2014.

      Via Fax: 972-267-5072 and
      email: courtdocuments@mosserlaw.com
      James C. Mosser
      Nicholas D. Mosser
      Mosser Law PLLC
      17110 Dallas Pkwy, Suite 290
      Dallas, TX 75248


                                  /s/ Andrew K. Meade
                                  Andrew K. Meade




                                           3

Exhibit R                                                                     App. 208
                                 CAUSE NO. 2014-10896


LOS CUCOS MEXICAN CAFÉ VIII,  §                   IN THE DISTRICT COURT OF
INC., LOS CUCOS MEXICAN CAFÉ’ §
IV, INC., MANUEL CABRERA, and §
SERGIO CABRERA                §
                              §
           Plaintiffs,        §
                              §
VS.                           §                   HARRIS COUNTY, TEXAS
                              §
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES   §
and DAVID JEIEL RODRIGUES     §
                              §
           Defendants.        §                   133rd JUDICIAL DISTRICT


     PLAINTIFFS’ NOTICE OF INTENT TO TAKE THE ORAL AND VIDEOTAPED DEPOSITION
                          OF DEFENDANT GALOVELHO, LLC


      Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel

Cabrera and Sergio Cabrera will take the oral deposition of the corporate representative of

Galovelho, LLC, on Monday, June 9, 2014, at 2:30 p.m., at the law offices of HAWASH MEADE

GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.

      Examination will be taken on matters related to

             1.     Venue facts, including but not limited to the location of events and
                    omissions giving rise to this lawsuit, the location of contact and
                    negotiations between the parties, and the residences and principal offices
                    of various defendants;

             2.     The business operations of the defendant entities;

             3.     The income (net and gross) of the business defendants;

             4.     The distributions of income and profits from the business defendants;




Exhibit R                                                                           App. 209
              5.     The assets and liabilities of the business defendants, including the
                     acquisition of each entities' assets;

              6.     Funding and financing of the defendant entities;

              7.     The terms upon which the defendants accepted funds from the plaintiffs;

              8.     The terms upon which the defendants accepted furniture and equipment
                     from the plaintiffs;

              9.     The agreements and business arrangements of the plaintiffs;

              10.    The trade mark of Estilo Gaucho Brazilian Restaurant, including its
                     creation and ownership;

              11.    The ownership of 8650 Frisco, LLC;

              12.    The management of 8650 Frisco, LLC;

              13.    The corporate governance of the defendant entities, including the roles and
                     roles and responsibilities of officers and managers, company agreements
                     and bylaws, other governing documents, meetings and minutes of
                     meetings;

              14.    The financial affairs of the business entities, including but not limited to
                     profits and losses, inventories, equipment, balance sheets, and cash flow;
                     and

              15.    The lease for the real property occupied by 8650 Frisco, LLC, including
                     the negotiations and execution of the lease, the plaintiffs' personal
                     guaranty of the lease, and the terms of the lease and guaranty.

       The deposition will continue from day to day until completed.

       The deposition will be recorded stenographically and on videotape. The stenographic

recording will be conducted by Gulfstream Legal Court Reporting.




                                               2

Exhibit R                                                                             App. 210
            Respectfully submitted,

            STEPHENS & DOMNITZ, PLLC

            /s/ Kelly D. Stephens
            Kelly D. Stephens
            SBN: 19158300
            P.O. Box 79734
            Houston, Texas 77279-9734
            Tel: 281-394-3287
            Fax: 832-476-5460
            kstephens@stephensdomnitz.com


            HAWASH MEADE GASTON NEESE &
            CICACK LLP


             /s/ Andrew K. Meade
            Andrew K. Meade
            State Bar No. 24032854
            Jeremy M. Masten
            State Bar No. 24083454
            2118 Smith Street
            Houston, Texas 77002
            713-658-9006 (Direct & Fax)
            ameade@hmgllp.com
            jmasten@hmgllp.com

            ATTORNEYS FOR PLAINTIFFS
            LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
            LOS CUCOS MEXICAN CAFÉ IV, Inc.,
            MANUEL CABRERA, and
            SERGIO CABRERA




               3

Exhibit R                                   App. 211
                             CERTIFICATE OF SERVICE

       A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on May 22, 2014.

      Via Fax: 972-267-5072 and
      email: courtdocuments@mosserlaw.com
      James C. Mosser
      Nicholas D. Mosser
      Mosser Law PLLC
      17110 Dallas Pkwy, Suite 290
      Dallas, TX 75248


                                  /s/ Andrew K. Meade
                                  Andrew K. Meade




                                           4

Exhibit R                                                                     App. 212
                                 CAUSE NO. 2014-10896


LOS CUCOS MEXICAN CAFÉ VIII,  §                   IN THE DISTRICT COURT OF
INC., LOS CUCOS MEXICAN CAFÉ’ §
IV, INC., MANUEL CABRERA, and §
SERGIO CABRERA                §
                              §
           Plaintiffs,        §
                              §
VS.                           §                   HARRIS COUNTY, TEXAS
                              §
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES   §
and DAVID JEIEL RODRIGUES     §
                              §
           Defendants.        §                   133rd JUDICIAL DISTRICT


     PLAINTIFFS’ NOTICE OF INTENT TO TAKE THE ORAL AND VIDEOTAPED DEPOSITION
                            OF DEFENDANT MANDONA, LLC


      Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel

Cabrera and Sergio Cabrera will take the oral deposition of the corporate representative of

Mandona, LLC, on Monday, June 9, 2014, at 2:30 p.m., at the law offices of HAWASH MEADE

GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.

      Examination will be taken on matters related to

             1.     Venue facts, including but not limited to the location of events and
                    omissions giving rise to this lawsuit, the location of contact and
                    negotiations between the parties, and the residences and principal offices
                    of various defendants;

             2.     The business operations of the defendant entities;

             3.     The income (net and gross) of the business defendants;

             4.     The distributions of income and profits from the business defendants;




Exhibit R                                                                           App. 213
              5.     The assets and liabilities of the business defendants, including the
                     acquisition of each entities' assets;

              6.     Funding and financing of the defendant entities;

              7.     The terms upon which the defendants accepted funds from the plaintiffs;

              8.     The terms upon which the defendants accepted furniture and equipment
                     from the plaintiffs;

              9.     The agreements and business arrangements of the plaintiffs;

              10.    The trade mark of Estilo Gaucho Brazilian Restaurant, including its
                     creation and ownership;

              11.    The ownership of 8650 Frisco, LLC;

              12.    The management of 8650 Frisco, LLC;

              13.    The corporate governance of the defendant entities, including the roles and
                     roles and responsibilities of officers and managers, company agreements
                     and bylaws, other governing documents, meetings and minutes of
                     meetings;

              14.    The financial affairs of the business entities, including but not limited to
                     profits and losses, inventories, equipment, balance sheets, and cash flow;
                     and

              15.    The lease for the real property occupied by 8650 Frisco, LLC, including
                     the negotiations and execution of the lease, the plaintiffs' personal
                     guaranty of the lease, and the terms of the lease and guaranty.

       The deposition will continue from day to day until completed.

       The deposition will be recorded stenographically and on videotape. The stenographic

recording will be conducted by Gulfstream Legal Court Reporting.




                                               2

Exhibit R                                                                             App. 214
            Respectfully submitted,

            STEPHENS & DOMNITZ, PLLC

            /s/ Kelly D. Stephens
            Kelly D. Stephens
            SBN: 19158300
            P.O. Box 79734
            Houston, Texas 77279-9734
            Tel: 281-394-3287
            Fax: 832-476-5460
            kstephens@stephensdomnitz.com


            HAWASH MEADE GASTON NEESE &
            CICACK LLP


             /s/ Andrew K. Meade
            Andrew K. Meade
            State Bar No. 24032854
            Jeremy M. Masten
            State Bar No. 24083454
            2118 Smith Street
            Houston, Texas 77002
            713-658-9006 (Direct & Fax)
            ameade@hmgllp.com
            jmasten@hmgllp.com

            ATTORNEYS FOR PLAINTIFFS
            LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
            LOS CUCOS MEXICAN CAFÉ IV, Inc.,
            MANUEL CABRERA, and
            SERGIO CABRERA




               3

Exhibit R                                   App. 215
                             CERTIFICATE OF SERVICE

       A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on May 22, 2014.

      Via Fax: 972-267-5072 and
      email: courtdocuments@mosserlaw.com
      James C. Mosser
      Nicholas D. Mosser
      Mosser Law PLLC
      17110 Dallas Pkwy, Suite 290
      Dallas, TX 75248


                                  /s/ Andrew K. Meade
                                  Andrew K. Meade




                                           4

Exhibit R                                                                     App. 216
                                  CAUSE NO. 2014-10896


LOS CUCOS MEXICAN CAFÉ VIII,  §                    IN THE DISTRICT COURT OF
INC., LOS CUCOS MEXICAN CAFÉ’ §
IV, INC., MANUEL CABRERA, and §
SERGIO CABRERA                §
                              §
           Plaintiffs,        §
                              §
VS.                           §                    HARRIS COUNTY, TEXAS
                              §
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES   §
and DAVID JEIEL RODRIGUES     §
                              §
           Defendants.        §                    133rd JUDICIAL DISTRICT


     PLAINTIFFS’ NOTICE OF INTENT TO TAKE THE ORAL AND VIDEOTAPED DEPOSITION
                       OF DEFENDANT DAVID JEIEL RODRIGUES


       Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel

Cabrera and Sergio Cabrera will take the oral deposition of David Jeiel Rodrigues, on Tuesday,

June 10, 2014, at 9:00 a.m., at the law offices of HAWASH MEADE GASTON NEESE & CICACK

LLP, 2118 Smith Street, Houston, Texas 77002.

       The deposition will continue from day to day until completed.

       The deposition will be recorded stenographically and on videotape. The stenographic

recording will be conducted by Gulfstream Legal Court Reporting.




Exhibit R                                                                         App. 217
            Respectfully submitted,

            STEPHENS & DOMNITZ, PLLC

            /s/ Kelly D. Stephens
            Kelly D. Stephens
            SBN: 19158300
            P.O. Box 79734
            Houston, Texas 77279-9734
            Tel: 281-394-3287
            Fax: 832-476-5460
            kstephens@stephensdomnitz.com


            HAWASH MEADE GASTON NEESE &
            CICACK LLP


             /s/ Andrew K. Meade
            Andrew K. Meade
            State Bar No. 24032854
            Jeremy M. Masten
            State Bar No. 24083454
            2118 Smith Street
            Houston, Texas 77002
            713-658-9006 (Direct & Fax)
            ameade@hmgllp.com
            jmasten@hmgllp.com

            ATTORNEYS FOR PLAINTIFFS
            LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
            LOS CUCOS MEXICAN CAFÉ IV, Inc.,
            MANUEL CABRERA, and
            SERGIO CABRERA




               2

Exhibit R                                   App. 218
                             CERTIFICATE OF SERVICE

       A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on May 12, 2014.

      Via Fax: 972-267-5072 and
      email: courtdocuments@mosserlaw.com
      James C. Mosser
      Nicholas D. Mosser
      Mosser Law PLLC
      17110 Dallas Pkwy, Suite 290
      Dallas, TX 75248


                                  /s/ Andrew K. Meade
                                  Andrew K. Meade




                                           3

Exhibit R                                                                     App. 219
                                 CAUSE NO. 2014-10896


LOS CUCOS MEXICAN CAFÉ VIII,  §                   IN THE DISTRICT COURT OF
INC., LOS CUCOS MEXICAN CAFÉ’ §
IV, INC., MANUEL CABRERA, and §
SERGIO CABRERA                §
                              §
           Plaintiffs,        §
                              §
VS.                           §                   HARRIS COUNTY, TEXAS
                              §
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES   §
and DAVID JEIEL RODRIGUES     §
                              §
           Defendants.        §                   133rd JUDICIAL DISTRICT


     PLAINTIFFS’ NOTICE OF INTENT TO TAKE THE ORAL AND VIDEOTAPED DEPOSITION
                            OF DEFENDANT BAHTCHE, LLC


      Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel

Cabrera and Sergio Cabrera will take the oral deposition of the corporate representative of

Defendant Bahtche, LLC, on Tuesday, June 10, 2014, at 2:30 p.m., at the law offices of

HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.

      Examination will be taken on matters related to

             1.     Venue facts, including but not limited to the location of events and
                    omissions giving rise to this lawsuit, the location of contact and
                    negotiations between the parties, and the residences and principal offices
                    of various defendants;

             2.     The business operations of the defendant entities;

             3.     The income (net and gross) of the business defendants;

             4.     The distributions of income and profits from the business defendants;




Exhibit R                                                                           App. 220
              5.     The assets and liabilities of the business defendants, including the
                     acquisition of each entities' assets;

              6.     Funding and financing of the defendant entities;

              7.     The terms upon which the defendants accepted funds from the plaintiffs;

              8.     The terms upon which the defendants accepted furniture and equipment
                     from the plaintiffs;

              9.     The agreements and business arrangements of the plaintiffs;

              10.    The trade mark of Estilo Gaucho Brazilian Restaurant, including its
                     creation and ownership;

              11.    The ownership of 8650 Frisco, LLC;

              12.    The management of 8650 Frisco, LLC;

              13.    The corporate governance of the defendant entities, including the roles and
                     roles and responsibilities of officers and managers, company agreements
                     and bylaws, other governing documents, meetings and minutes of
                     meetings;

              14.    The financial affairs of the business entities, including but not limited to
                     profits and losses, inventories, equipment, balance sheets, and cash flow;
                     and

              15.    The lease for the real property occupied by 8650 Frisco, LLC, including
                     the negotiations and execution of the lease, the plaintiffs' personal
                     guaranty of the lease, and the terms of the lease and guaranty.

       The deposition will continue from day to day until completed.

       The deposition will be recorded stenographically and on videotape. The stenographic

recording will be conducted by Gulfstream Legal Court Reporting.




                                               2

Exhibit R                                                                             App. 221
            Respectfully submitted,

            STEPHENS & DOMNITZ, PLLC

            /s/ Kelly D. Stephens
            Kelly D. Stephens
            SBN: 19158300
            P.O. Box 79734
            Houston, Texas 77279-9734
            Tel: 281-394-3287
            Fax: 832-476-5460
            kstephens@stephensdomnitz.com


            HAWASH MEADE GASTON NEESE &
            CICACK LLP


             /s/ Andrew K. Meade
            Andrew K. Meade
            State Bar No. 24032854
            Jeremy M. Masten
            State Bar No. 24083454
            2118 Smith Street
            Houston, Texas 77002
            713-658-9006 (Direct & Fax)
            ameade@hmgllp.com
            jmasten@hmgllp.com

            ATTORNEYS FOR PLAINTIFFS
            LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
            LOS CUCOS MEXICAN CAFÉ IV, Inc.,
            MANUEL CABRERA, and
            SERGIO CABRERA




               3

Exhibit R                                   App. 222
                             CERTIFICATE OF SERVICE

       A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on May 22, 2014.

      Via Fax: 972-267-5072 and
      email: courtdocuments@mosserlaw.com
      James C. Mosser
      Nicholas D. Mosser
      Mosser Law PLLC
      17110 Dallas Pkwy, Suite 290
      Dallas, TX 75248


                                  /s/ Andrew K. Meade
                                  Andrew K. Meade




                                           4

Exhibit R                                                                     App. 223
                                  CAUSE NO. 2014-10896


LOS CUCOS MEXICAN CAFÉ VIII,  §                    IN THE DISTRICT COURT OF
INC., LOS CUCOS MEXICAN CAFÉ’ §
IV, INC., MANUEL CABRERA, and §
SERGIO CABRERA                §
                              §
           Plaintiffs,        §
                              §
VS.                           §                    HARRIS COUNTY, TEXAS
                              §
8650 FRISCO, LLC d/b/a ESTILO §
GAUCHO BRAZILIAN STEAKHOUSE, §
MANDONA, LLC, GALOVELHO, LLC, §
BAHTCHE, LLC, CLAUDIO NUNES   §
and DAVID JEIEL RODRIGUES     §
                              §
           Defendants.        §                    133rd JUDICIAL DISTRICT


     PLAINTIFFS’ NOTICE OF INTENT TO TAKE THE ORAL AND VIDEOTAPED DEPOSITION
     OF DEFENDANT 8650 FRISCO, LLC D/B/A ESTILO GAUCHO BRAZILIAN STEAKHOUSE


       Plaintiffs, Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel

Cabrera and Sergio Cabrera will take the oral deposition of the corporate representative of

Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse, on Tuesday,

June 10, 2014, at 2:30 p.m., at the law offices of HAWASH MEADE GASTON NEESE & CICACK

LLP, 2118 Smith Street, Houston, Texas 77002.

       Examination will be taken on matters related to

              1.     Venue facts, including but not limited to the location of events and
                     omissions giving rise to this lawsuit, the location of contact and
                     negotiations between the parties, and the residences and principal offices
                     of various defendants;

              2.     The business operations of the defendant entities;

              3.     The income (net and gross) of the business defendants;

              4.     The distributions of income and profits from the business defendants;




Exhibit R                                                                            App. 224
              5.     The assets and liabilities of the business defendants, including the
                     acquisition of each entities' assets;

              6.     Funding and financing of the defendant entities;

              7.     The terms upon which the defendants accepted funds from the plaintiffs;

              8.     The terms upon which the defendants accepted furniture and equipment
                     from the plaintiffs;

              9.     The agreements and business arrangements of the plaintiffs;

              10.    The trade mark of Estilo Gaucho Brazilian Restaurant, including its
                     creation and ownership;

              11.    The ownership of 8650 Frisco, LLC;

              12.    The management of 8650 Frisco, LLC;

              13.    The corporate governance of the defendant entities, including the roles and
                     roles and responsibilities of officers and managers, company agreements
                     and bylaws, other governing documents, meetings and minutes of
                     meetings;

              14.    The financial affairs of the business entities, including but not limited to
                     profits and losses, inventories, equipment, balance sheets, and cash flow;
                     and

              15.    The lease for the real property occupied by 8650 Frisco, LLC, including
                     the negotiations and execution of the lease, the plaintiffs' personal
                     guaranty of the lease, and the terms of the lease and guaranty.

       The deposition will continue from day to day until completed.

       The deposition will be recorded stenographically and on videotape. The stenographic

recording will be conducted by Gulfstream Legal Court Reporting.




                                               2

Exhibit R                                                                             App. 225
            Respectfully submitted,

            STEPHENS & DOMNITZ, PLLC

            /s/ Kelly D. Stephens
            Kelly D. Stephens
            SBN: 19158300
            P.O. Box 79734
            Houston, Texas 77279-9734
            Tel: 281-394-3287
            Fax: 832-476-5460
            kstephens@stephensdomnitz.com


            HAWASH MEADE GASTON NEESE &
            CICACK LLP


             /s/ Andrew K. Meade
            Andrew K. Meade
            State Bar No. 24032854
            Jeremy M. Masten
            State Bar No. 24083454
            2118 Smith Street
            Houston, Texas 77002
            713-658-9006 (Direct & Fax)
            ameade@hmgllp.com
            jmasten@hmgllp.com

            ATTORNEYS FOR PLAINTIFFS
            LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
            LOS CUCOS MEXICAN CAFÉ IV, Inc.,
            MANUEL CABRERA, and
            SERGIO CABRERA




               3

Exhibit R                                   App. 226
                             CERTIFICATE OF SERVICE

       A true and correct copy of the foregoing document has been served to the following
pursuant to the Texas Rules of Civil Procedure on May 22, 2014.

      Via Fax: 972-267-5072 and
      email: courtdocuments@mosserlaw.com
      James C. Mosser
      Nicholas D. Mosser
      Mosser Law PLLC
      17110 Dallas Pkwy, Suite 290
      Dallas, TX 75248


                                  /s/ Andrew K. Meade
                                  Andrew K. Meade




                                           4

Exhibit R                                                                     App. 227
                                                                                     Andrew K. Meade
                                                                                  ameade@hmgllp.com
                                                                             713-658-9006 (direct & fax)


                                           May 12, 2014

Via Email and Fax: (972) 267-5072
Mr. James Mosser
Mr. Nicholas Mosser
Mosser Law PLLC
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248

RE:     Cause No. 2014-10896; Los Cucos Mexican Café VIII, Inc. et al v. 8650 Frisco, LLC et al; In
        the 133rd Judicial District Court of Harris County, Texas

Messrs. Mosser:

You will find enclosed notices of the deposition of Claudio Nunes for Monday, June 9, 2014, at
9:00 a.m. and David Jeiel Rodrigues for Tuesday, June 10, 2014, at 9:00 a.m.

Assuming that Mr. Nunes or Mr. Jeiel will be designated as corporate representative for any of
the companies, we will schedule their depositions for the same day. For example, if Mr. Nunes
will be designated as corporate representative for Mandona, LLC, then we will schedule the
deposition of the corporate representative for the same day as Mr. Nunes’s deposition.

Please advise whether Mr. Nunes or Mr. Jeiel will serve as corporate representative for any of
the defendant companies and, if so, which ones. If I have not heard from you by Monday,
May 19, 2014, I will unilaterally schedule the depositions of the corporate defendants for either
June 9 or June 10.

Thank you in advance for your attention and cooperation in this matter.

                                     Respectfully,




                                     Andrew K. Meade
AKM/nlj
Attachment

Cc:     Kelly Stephens (Via Email)
                          2118 Smith Street | Houston, Texas 77002
                  Main Phone: (713) 658-9001 | Main Facsimile: (713) 658-9011
                                       www.hmgllp.com
      Exhibit R                                                                      App. 228
                                               EXHIBIT 4
                                         Cause No. 2014-10896

LOS CUCOS MEXICAN CAFE VIII,                      §             IN THE DISTRICT COURT OF
INC.; LOS CUCOS MEXICAN CAFE IV,                  §
INC.; MANUEL CABRERA; AND                         §
SERGIO CABRERA,                                   §
                                                  §
                           Plaintiffs,            §
                                                  §
v.                                                §                 HARRIS COUNTY, TEXAS
                                                  §
8650 FRISCO, LLC D/B/A ESTILO                     §
GAUCHO BRAZILIAN STEAKHOUSE;                      §
MANDONA, LLC; GALOVELHO, LLC;                     §
BAHTCHE, LLC; CLAUDIO NUNES; and                  §
DAVID JEIEL RODRIGUES,                            §
                                                  §
                           Defendants.            §                 133rd JUDICIAL DISTRICT


                ORDER ON DEFENDANTS’ MOTION TO STAY ALL MATTERS
                                                AND
                              PLAINTIFFS’ THIRD MOTION TO COMPEL


        The Court, having considered Defendants’ Motion to Stay All Matters and Plaintiffs’

Third Motion to Compel and the respective responses, arguments of counsel, and evidence, has

determined that Defendants’ motion should be and is hereby DENIED and that Plaintiffs’ motion

should be and is hereby GRANTED. Specifically:

        The Court DENIES Defendants' request to stay all matters.

        The Court hereby OVERRULES Defendants' objections to Plaintiffs' Requests for

Production Nos. 1, 2, 3, 4, 5, 7, and 8. 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.

        The Court FINDS that Defendants’ counsel has abused the discovery process in resisting

discovery and has determined that the following sanctions are appropriate, satisfy the legitimate




Exhibit R                                                                            App. 229
purposes of discovery sanctions, and are neither more nor less stringent than necessary to

accomplish those purposes.

        Accordingly, IT IS ORDERED          that all expenses of discovery associated with the

underlying motion and the deposition of each of the Defendants in accordance with this order are

charged to the MOSSER LAW FIRM. The MOSSER LAW FIRM shall pay to Plaintiffs’ counsel

$                      within 10 days of the signing of this order.

        IT IS FURTHER ORDERED that the following facts are ESTABLISHED for all

purposes in this litigation: that Defendants have consented to venue in Harris County, Texas.

        IT IS FURTHER ORDERED that failure to comply with this Order may result in the

further imposition of sanctions or a holding of contempt, punishable by fine or imprisonment or

both.



DATED:




                                                                        ______
                                                             JUDGE PRESIDING




Exhibit R                                                                             App. 230
                                                           No. 2014-10896

  LOS CUCOS MEXJCAN CAFE vm, INC.. ET AL.                            §         IN THE DISTRICT COURT OF
                                                                     §
                                                                     §
  vs.                                                                §         HARRIS COUNTY, TEXAS
                                                                     §
 8650 FRISCO, LLC D/8/A ESTILO GAUCHO                                §
 BRAZILIAN STEAKHOUSE, ET AL.                                        §         133rd JUDIClAL DISTRICT


                                   AMENDED NOTICE OF INTENTION
                              TOT AKE DEPOSITION BY WlUTTEN QUESTIONS
To Defendants by and through their attorney of record: Nicholas Mossc1·
To other party/parties by and through their attorney of record: Kelly D. Stephens

You will please take notice that on June 16.2014 at 10:00 a.m., a deposition by written questions will be taken of the Custodian of
Records for:
Mike Vea•ucchi, C PA
9319 LBJ Fa•eeway, Ste. 100, Dallas, TX 75243


before a Notary Public for     Gulfstream Legal Group, LLC
                               1300 Texas St.
                               Houston, TX 77002
                               Ph: 713-237-4700 II Fax: 888-559-7431

or its designated agent, which deposition with attached questions may be used in evidence upon the trial of the above-styled and
numbered cause pending in the above-named court, Notice is further given that request is hereby made as aulhotized under Rule
200, Texas Rules of Civil Procedure, to the officer taking this deposition to issue 11 subpoena duces tecum and cause it to be
se.rved on the witness to produce any and all records as desc1·ibed on the attached questions and/or Exhibit(s) and to turn all such
records over !o the otlioer authorized to take this deposition so that photographic reproductions of the same may be made and
attached to said deposition.

                                                              Mr. Andrew K. MeAde
                                                              StAte Baa• No. 24032854
                                                              Mr. Je•·emy M. M11sten
                                                              State Dna· No. 24083454
                                                              HaWitsh Meade Gaston Neese & Cicacl< LLP
                                                              21 18 Smith Stl·eet
                                                              Houston, TX 77002
                                                              Ph: 713-658-9001// Fax: 113-658-9011
                                                              Attorneys for Plaintiffs, Los CocosMedcan Cafe Vlli, Jnc., et al.

1 hereby cenify that a h'\Je and correct copy of the foregoing instrument has been forwarded to all Counsel of Record by band-delivery,
facsimile, and/or certified mail (rctum receipt requested) on this day.


oat«!    t;" ( I '\   l\'\
Ordet• No. 5091


Exhibit R
                                                      Exhibit 8                                                      App. 231
            DEPOSITION SUBPOENA TO TESTIFY OR PRODUCE DOCUMENTS OR THIN\...S

THJ£ STATE OF TEXAS
To any Sheriff or Constable of the State ofTexas or other person authorized to serve subpoenas under Rule 176 oftlte T~s Rules of
Civil Procedure- GREETINGS -
You are hereby commanded to subpoena and summon the Custodian of Records for:

MJke Verucchl, CPA
9319 LBJ Freeway, Ste.100, Dallas, TX 75243

to be ond appear before aNoiary Public: of my designation for. Gulfslreun Legal Group, LLC, 1300 Te:xas St, Hourton, TX 77002 or its
designated agent on June 16, 2014 at 10:00 a.m at the office ofthe custodian, and there under oath to make answers of certain written
questions to be propounded to the wit.ness and to brlng and produce for inspection and photocopying

ANY AND ALL RECORDS (WHETHER TYPED, HANDWRITTEN OR COMPUTER-GENERATED) PERTAINING TO
8650 FRISCO LLC, including but not limited to any type of financial records; accountlng records; bank statements; tax
records (Including 1099 forms, W-2 rorms md K-1 rorms); reports; office notes; correspondence; md p rintouts of any type of
data stored In electronic format. including my e-mau transmlsston(s)

then and there to give evidence and lhere remain from day to day and time to time until discharged according to law at the instance of
the Plaintiffs, Los Cucos Mexican Cafe Vill, Inc., et al.; represented by Andrew K. Meade and Jeremy M. Masten. Attorneys af
Record, in that certain Cause No. 2014-10896 pending on lbe docket af the District Court of l11e 133rd Judicial District of Harris
County, Texas.

This Subpoena is issued under and by vit1ue of Rule 200 and Notice of Deposition Upon             Writ~en   Question.s on file with the   abov~
named court. styled

LOS CUCOS MEXICAN CAFE VITI, INC., ET AL. vs.
8650 FRISCO, LLC D/WA ESTILO GAUCHO BRAZillAN Sl'EAKHOUSE, ET AL

WITNESS MY HAND, this 14th                                   day ofMay, 2014.

                      I IIIII
                    ,\_
                $~•:.'!!':~--..        MICHAEl R. MILLER
               f·:~r§ Notary Public. State ol TeKas
               \~~.P-1/.;-f          My Commission Expires
                ~"'/,{,f.!j~t,,"'     November 06, 2014                 NOTARY PUBLIC                          (___)

176.8 Enforctmmt of Subpotna (a) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person mny be
deemed a contempt of the court from which the wbpoena is issued or a district court in the county in which the subpoena is served, and may be
punished by fine or confinement, or both.
                                                              OFFICER'S RETURN
Came to hand this _ _ day of                                    20_ , and executed this the _ _   day of                        20____J   in lhe
following manner: By delivering to the witness                                                              a !me copy hereof
Retumed this                        day of                   .20__,

Ordtr No. 5091.001                                                                 PROCESS SERVER




        Exhibit R                                                                                                          App. 232
                                                             No. 2014-10896

     LOS CUCOS MEXICAN CAFE VITI, .I NC., ET AL.                       §         IN THE DISTRICT COURT OF
                                                                       §
                                                                       §
 vs.                                                                   §         HARRIS COUNTY, TEXAS
                                                                       §
 8650 FRISCO, LLC D/B/A ESTILO GAUCHO                                  §
 BRAZILIAN STEAKHOUSE, ET AL.                                          §         133r·d JUDICIAL DISTRICT


                 AMENDED DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS

Custodian of Records fOI: Mil<c Verucchi, CPA

Type of Records:
ANY AND ALL RECORDS (WHETHER TYP£D, HANDWRITTEN OR COMPUTER-GENERATED) PERTAfNING
TO 8650 FRISCO LLC, including but not limited to any type of finauciall'CC{)l'ds; accounting recot·ds; bank statements;
tax: records (including 1099 forms, W-2 forms and K -1 forms); reports; office notes; COl'l'cspondence; and printouts of any
type of data stored in electt·onic format, including any e-ma~l transmission(s)


1.     Please stale yo't.Jr' full name.

       Answer: - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -


2.     Please state by whom you are employed and the business address.

       Answer: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ __


3.     What is the title ofyour position or job?

       Answel': - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -


4.     Have you accepted the subpoena duces tecum accompauyjng these direct questions?

       Answer: _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __


5.    A re these memoranda, repo11s, records, or data compilations outlined in the subpoena duces tecum in your custody or subject
      to your control, supervision or direction?

       Answer: _ __ __ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __


6,     Are you able to identify these aforementioned reco(dS as the originals or true and correct copies of the originals?

      Answer: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __




Order No. 5091.001


     Exhibit R                                                                                                       App. 233
7. Please hand to the Officer taking this deposition copies of the memoranda, reports, records, or data compilatio•1s mentioned in
   Question No. 5. Have you complied? ff not, why?

      Answer: ______________________________________________________________________________


8.    Arc the copies which you have handed to the Officer taking this deposition true and correct copies of such memoranda,
      reports, records or data compilations?

      Answer: ______________________________________________________________________________


9.    Were such memoranda, reports, records. or data compTiations kept jo the regular course ofbustness of this ·facility'?

      Answer: ______________________________________________________________________________


I 0. Was it in the regular course of business of1his facility tbr a person with knowledge of the acts, events, conditions, opinions or
      diagnoses recorded to make the record or to transmit information thereof to be included in such record?

      Answer:------------------------------------------------------------------------------


11. Were the entries on these records made at or shortly after the time of the transaction recorded?

      Answer:------------------------------------------------------------------------------


12. Was the method ofprepar~tion of these records trustworthy?

      Answer: ------------------------------------------------------------------------------




                                                                 WITNESS (Custodian of Records)

         Before me, the undersigned authority, an this day personally appeared the witness, known to me to be the person whose.
name is subscribed to the foregoing instrument in the capacity therein stated, who being first duly sworn, stated upon his/her oath
that the answers to the foregoing questions are true and correct. I further cettif.y that the records attached hereto are exact
duplicates oftbe original records.


          SWORN TO AND SUBSCRIBED before me this _ __ _ _ day of_ _ _ _ _ _ _ __ ___,, 20._ __



                                                                 NOTARY PUBL[C

                                                                 My Commission Expires:---------------------------




Orde•· No. 5091 .001


     Exhibit R                                                                                                     App. 234
                                                                                          6/13/2014 6:06:08 PM
                                                                     Chris Daniel - District Clerk Harris County
                                                                                         Envelope No. 1542203
                                                                                       By: AMANDA ARRIAGA



                         CAUSE NO. 2014-10896
  LOS CUCOS MEXICAN CAFE          § IN THE DISTRICT COURT OF
  VIII, INC., LOS CUCOS MEXICAN §
  CAFE IV, INC., MANUEL          §
  CABRERA, and SERGIO            §
  CABRERA                        §
  PLAINTIFFS,                    ~                   ~

  V.                                          ~   HARRIS   COUN~XAS
  8650 FRISCO, LLC d/b/a ESTILO §
  GAUCHO BRAZILIAN              §            ~
                                                               "q
  STEAKHOUSE, MANDONA,          §           ~~
  LLC, GALOVELHO, LLC,          §         ~~
  BAHTCHE, LLC, CLAUDIO         §      "cJ!P
  NUNES and DAVID JEIEL         §      ~
  RODRIGUES                     § G(f(Q}
  DEFENDANTS.                     :3Jrd JUDICIAL DISTRICT
  DEFENDANT'S MOTION TO QUAS        OSITION SUBPOENA OF MIKE
             VERUCCHI AND FO~ ROTECTIVE ORDER
                                          ~
  Defendants, 8650 Frisco, LLC,        ~ Estilo Gaucho Brazilian Steakhouse,
                                     0~
  Mandona, LLC, Galovelho,~, Batche, LLC, Claudio Nunes, and David

  Jeiel Rodrigues, asks th~ourt to quash the subpoena for deposition on

  written questions to      r{@<~ Verucchi, a non-party as it is unenforceable.
                         ~
                 o   i!J(f(Q}        INTRODUCTION
                ~
  1.    Plaint~Los Cucos Mexican Cafe VIII, Inc., Los Cucos Mexican Cafe
            ~
        IV, Inc., Manuel Cabrera, and Sergio Cabrera, sued defendants,8650

        Frisco, LLC, d/b/a Estilo Gaucho Brazilian Steakhouse, Mandona, LLC,

        Galovelho, LLC, Batche, LLC, Claudio Nunes, and David Jeiel

  Motion to Quash and for Protective Order                                                    1



Exhibit R
                                       Exhibit 9                                   App. 235
            Rodrigues, for inter alia breach of contract and conversion.

  2.        Discovery in this suit is governed by a Level 3 discovery-control plan.

  3.        The discovery period ends February 5, 2015.

  4.        This case has not been set for trial.

                                     BACKGROUND                  (j~ *
  5.   On May 15, 2014, Plaintiffs served a Deposition      Su~ena To Testify Or
                                                         ~
       Produce Documents or Things on the            cust~ of     records for Mike

       Verucchi, an accountant with whom            Def~nts   are clients. Exhibit A
                                                      ~
       (Exhibit A also includes the     correspo~~ce      sent to Mr. Verucchi from

       Plaintiffs' agent).                   ~,ffp
  6.   On the same day, Plaintiffs     ai~Yerved
                                        g
                                                 Mike Verucchi, with their Notice

       of Intention To Take     DepQ~n By Written Questions.
  7.   Mike Verucchi, a       no~ty witness in this cause of action,         is the

       custodian of    recor~~
  8.
                          u
       The subpoef],~quests the any and all records pertaining to 8650 Frisco,

       LLC     inclu"~
                  g
                       but not limited to any type of:

       a.      ~ncial records
       b.       Accounting records

       c.       Bank statements


  Motion to Quash and for Protective Order                                        2



Exhibit R                                                                   App. 236
       d.        Tax records

       e.        Reports

       f.        Leases

       g.        Guaranties                                                *
                                                                       r\A~~~
       h.        Records of trademarks and other intellectual pr       v·Y
       i         Office notes                                      " rl}
           .                                                     ~

       j.        Correspondence                             i:J/f!fJ
       k.        Printouts of any type of data stored   ~ectronic format, including
                                                        ~
                any email transmissions.         Q«(fjj
                           ARGUMENT      AN~THORITIES
                                           u
                                   MOTI~ TO QUASH

  9.   The Court should quash tb~bpoena because it fails to comply with the

       Texas Rules of Civil     P~~ure.
  10. Tex. R. Civ. P.      17~) limits the subpoena power of the court to 150
                           a
       miles from w"~ the person resides or is served.

  11. Mr.      Verru~was served in Dallas, Texas and the place for deposition
                   g
       is H4n, Texas.

  12. Houston is more than 150 miles from Dallas, and therefore no

       documents will be produced and the Subpoena is unenforceable. In re


  Motion to Quash and for Protective Order                                          3



Exhibit R                                                                       App. 237
        SXPAnalytics, LLC, Cause No. 14-11-01039-CV., 2012 WL 1357696,

        3 (Tex.App.-Houston [14 Dist.],2012) ("Dallas is also beyond the

        150-mile subpoena range from Harris County. See Tex.R. Civ. P.

        176.3."); In re ENSCO Offshore Intern. Co. 311 S.~:j} 921, 926

        (Tex.,2010) ("compulsory process is unavailable for    t~st majority of
        WI't nesses. ") .                                  ~  ~
  13. Defendants have explained this issue to          ~ffs      counsel and the

        deposition company issuing the   subpoena?~intiffs ignored this advice.
                                                 ~
        Exhibit 8 & C.                        Q!f@
                                             0~
  14. The Court should further issue ~tective order to require Plaintiffs

        adhere to Rule 176.3(b) as   th~Pactics
                                       g
                                                thus far in this litigation have run

        roughshod over every rul~ ~ivil procedure, local rule, statute, and case
                                 ~
        law they have come ac~s. Rule 176.3(b) clearly states that a "subpoena

        may not be used     ~lscovery to an extent, in a manner, or at a time
                            u
                      ~vided by the rules governing discovery." Tex. R. Civ. P.
        other than as0~~
                  o({j
        176.3(b). ~
                   g
  15.   Plain~~re not permitted to use subpoenas to seek information from an
        non party with the threat of contempt and attachment of orders of the

        court which are not relevant to that non party. (Plaintiffs' agent Gulf


  Motion to Quash and for Protective Order                                        4



Exhibit R                                                                   App. 238
       Stream Legal, at the direction of Plaintiffs attached the Court's order

       regarding Mr. Holtman issued on May 12, 2014 inferring that the order

       was applicable to Mr. Verucchi.)Exhibit A.

  16. Furthermore, Plaintiffs have failed to comply with 191.4(b ~

                                       PRAYER                  ~~
  17. WHEREFORE, PREMISES CONSIDERED,                   Mov~equests      that the
                                                        ~
       Court quash the above-described         Subpoena~use     it fails to comply

       with the Texas Rules of Civil Procedure      ~is an    improper discovery
                                                    ~
       tactic. Defendants request the Court     i~~a protective order preventing
       Plaintiffs from engaging in   abusiv~~overy tactics.
  Respectfully submitted, MOSSER~W
                                           u    PLLC
                                     ({@
  Is/ Nicholas D. Mosser        o ~

  James C. Mosser           n_tfi!!P
  Texas Bar No. 00789784:__~0
  Nicholas D. Mosser ~~
  Texas Bar No. 2407!))
  Benjamin Casey . ~
  Texas Bar No. 24~267
  17110 Dallas ~~ay, Suite 290
  Dallas, Texa~~248
  Telephone       -733-3223
  Facsimile~ -267-5072
  cou rtd ocu ments@mosserlaw.com
  Lawyers for Defendants




  Motion to Quash and for Protective Order                                      5



Exhibit R                                                                App. 239
                           CERTIFICATE OF SERVICE

      I certify that on June 13, 2014, a true and correct copy of this document
  was served pursuant to Tex. R. Civ. P. 21 and 21 a, to the following counsel:

  Kelly Stephens
  P.O. Box 79734
  Houston, Texas 77279
  Telephone: 1-281-394-3287
  Facsimile: 1-832-476-5460

  Is/ Nicholas D Mosser
  By: Nicholas D. Mosser




  Motion to Quash and for Protective Order                                   6



Exhibit R                                                              App. 240
                       CERTIFICATE OF CONFERENCE
      This is to certify that the undersigned attorney could not resolve the
  issues surrounding this Subpoena without court intervention. Therefore, the
  matter is presented to the Court for determination. Exhibit B & C are
  Defendants' attempt at conferring with Plaintiffs. In addition Defendants
  contacted Gulf Stream Legal indicating the error in their subpoena, this
  conference was unsuccessful.

  Is! Nicholas D. Mosser
  Nicholas D. Mosser




  Motion to Quash and for Protective Order                                 7



Exhibit R                                                            App. 241
                                       MOTION TO COMPEL
                                                              1

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

 3

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

11   _______________________________________________________

12
                           MOTION TO TRANSFER
13   _______________________________________________________

14

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

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

17   numbered cause before the Honorable JACLANEL McFARLAND,

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

19          Proceedings reported by computerized stenotype

20   machine.

21

22

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

                            DARLENE STEIN
Exhibit R
                           Exhibit 10                        App. 242
                                       MOTION TO COMPEL
                                                           2

 1                         APPEARANCES

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

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

13

14

15

16

17

18

19

20

21

22

23

24

25

                          DARLENE STEIN
Exhibit R                                                 App. 243
                                     MOTION TO COMPEL
                                                          3

 1                      CHRONOLOGICAL INDEX

 2   June 23, 2014

 3                                                PAGE

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

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

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

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

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

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

                          DARLENE STEIN
Exhibit R                                                App. 244
                                            MOTION TO COMPEL
                                                                   4

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

 2                          June 23, 2014

 3

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

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

 6   represent, please.

 7                    MR. MEADE:    Andrew Meade and Sam Haran for

 8   the Plaintiffs.

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

10   who you are and who you represent, please.

11                    MR. MOSSER:   I'm sorry?

12                    THE COURT:    Announce who you are and who

13   you represent.

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

15   Mosser, Mosser Law Firm, PLLC, appearing telephonically

16   on behalf of all Defendants.

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

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

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

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

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

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

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

24   in the actual written motions.

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

                            DARLENE STEIN
Exhibit R                                                      App. 245
                                           MOTION TO COMPEL
                                                                 5

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

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

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

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

 5   easier to hear.

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

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

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

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

10   we can do.

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

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

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

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

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

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

17   wherever I was going.

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

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

20   Fridays and Mondays to make that more convenient.

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

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

23                   MR. MEADE:    Mondays.

24                   And so, the situation that we've got

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

                             DARLENE STEIN
Exhibit R                                                       App. 246
                                         MOTION TO COMPEL
                                                               6

 1   noticed depositions for early May of the Defendants, that

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

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

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

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

 6   occur.

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

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

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

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

11   his clients because -- and they subsequently filed a

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

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

14   depositions.    And there is nobody else within his

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

16   defend a deposition.

17                    He then went and set his Motion to Transfer

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

19   that conflict with a trial that I have in Judge

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

21   offered dates in August.

22                    And we have run into a problem now, which

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

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

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

                            DARLENE STEIN
Exhibit R                                                     App. 247
                                       MOTION TO COMPEL
                                                               7

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

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

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

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

 5   Motion to Transfer Venue is pending.

 6                   They have taken the position and even set

 7   for today and then withdrew a Motion to Stay all

 8   proceedings while they have the opportunity to have that

 9   Motion to Transfer Venue heard.

10                   We're going to have to take these

11   depositions before the Motion to Transfer Venue hearing.

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

13   to Transfer Venue hearing pushed back till that can

14   happen.

15                   But we also need Mr. Mosser or his clients

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

17   took Certificates of Nonappearance on all six

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

19   cost on each of those.

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

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

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

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

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

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

                           DARLENE STEIN
Exhibit R                                                    App. 248
                                     MOTION TO COMPEL
                                                             8

 1   accountant to produce the records from New Braunfels, and

 2   he did produce the records to us.

 3                  But we have also asked for certain

 4   financial records, including tax records and other

 5   financial documents from the Defendants themselves; and

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

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

 8   although that's not part of today.

 9                  The -- the other issue that is part of

10   today is their responses and objections to our requests

11   for production, which deal with the financial and tax

12   records.

13                  Starting with the tax records, there are

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

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

16   First of all, the statute allows it.

17                  Second, we need to prepare our own tax

18   returns.

19                  Third, how they chose to characterize our

20   capital contributions, the proportion of what is

21   characterized as a loan and capital contribution and all

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

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

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

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

                          DARLENE STEIN
Exhibit R                                                 App. 249
                                      MOTION TO COMPEL
                                                             9

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

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

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

 4   records.

 5                   The other financial records, which include

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

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

 8   bank account statements are going to be relevant to

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

10   limited liability company act, under the partners' oral

11   agreement, and under the written agreements that were

12   exchanged, we would be entitled to distributions of

13   distributable cash.

14                   None have been made to us.   We believe some

15   have been made to the Defendants, substantial

16   distributions, and that there is distributable cash.    We

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

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

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

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

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

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

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

24   was made again in response to requests for production

25   after the Court had already ruled on the objection in

                           DARLENE STEIN
Exhibit R                                                   App. 250
                                        MOTION TO COMPEL
                                                             10

 1   relation to the accountant.

 2                   They made other objections; for example,

 3   objecting that the Texas Finance Code provides the

 4   exclusive means to get bank account statements, even bank

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

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

 7   the bank statements separately.    But that doesn't

 8   alleviate the obligation of a party to produce those bank

 9   statements.

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

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

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

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

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

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

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

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

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

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

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

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

22   probably having to move it to compel.

23                   When these depositions do occur, I suspect

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

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

                            DARLENE STEIN
Exhibit R                                                    App. 251
                                         MOTION TO COMPEL
                                                              11

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

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

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

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

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

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

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

 8   is one suggestion to do that.

 9                    And I'll let Mr. Mosser respond.

10                    THE COURT:    Mr. Mosser?

11                    MR. MOSSER:   Yes, ma'am.

12                    THE COURT:    You may respond.

13                    Hello?

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

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

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

17   will.    Thank you.

18                    May it please the Court?    Let me go

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

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

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

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

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

24   pick up the grills.

25                    So, we told them if they leave the grills

                               DARLENE STEIN
Exhibit R                                                     App. 252
                                      MOTION TO COMPEL
                                                           12

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

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

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

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

 5   outrageous that he would say those kinds of things.

 6                   As for bank accounts, the Finance Code does

 7   provide the method by which he can obtain the bank

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

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

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

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

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

13   he had related to anything with my clients.

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

15   Temporary Injunction hearing, Mr. Holtman went and

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

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

18   from counsel this morning, delivered all the documents he

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

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

21   income statements, all the financial statements,

22   everything related to the business until Mr. Holtman was

23   fired.

24                   Now, the Court ordered that.   Mr. Holtman

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

                           DARLENE STEIN
Exhibit R                                                  App. 253
                                       MOTION TO COMPEL
                                                             13

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

 2   manner that have already been produced by the accountant

 3   in this case.

 4                    And, secondly, those documents were

 5   produced to opposing counsel who has yet to this day

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

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

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

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

10                    Going back to the top of the complaint from

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

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

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

14   immediately notified, upon determination that I was

15   immobile, that this deposition had to be reset or

16   postponed.

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

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

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

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

21   motions claiming that they've had a conference with

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

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

24   motions and then claimed that they had a conference after

25   they filed the motion.

                            DARLENE STEIN
Exhibit R                                                    App. 254
                                       MOTION TO COMPEL
                                                            14

 1                    As for offering dates, we offer to set a

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

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

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

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

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

 7   the special setting in that case because of my sacral

 8   iliac sprain.

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

10   when I had my quadruple bypass surgery, opposing counsel

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

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

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

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

15   should take depositions to get proof for the Motion to

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

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

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

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

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

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

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

23   will be happy to defend that issue.

24                    As for costs, counsel fails to properly

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

                            DARLENE STEIN
Exhibit R                                                   App. 255
                                      MOTION TO COMPEL
                                                            15

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

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

 3   like me sitting in his conference room, taking the

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

 5   with it.

 6                   So, he has all of the financial records we

 7   believe that exist, delivered by Holtman over our

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

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

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

11   from him.

12                   And as for tax records from the LLC,

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

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

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

16   Temporary Injunction hearing.

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

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

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

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

21   is an abuse of discretion requiring the disclosure of

22   Federal income tax returns if other documents can provide

23   the information necessary.

24                   But in order to even search out and get

25   that information, opposing counsel is required to provide

                            DARLENE STEIN
Exhibit R                                                   App. 256
                                            MOTION TO COMPEL
                                                               16

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

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

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

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

 5   other intrusive and burdensome matters are necessary for

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

 7   total.

 8                    Thank you.

 9                    THE COURT:    When do you want to take the

10   depositions?

11                    MR. MEADE:    Well --

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

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

14   opposing counsel when he wants to take the depositions.

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

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

17   the Motion to Transfer Venue is heard.

18                    THE COURT:    Okay.

19                    MR. MEADE:    The more complex answer is

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

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

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

23   breach of contract case.

24                    So, following that week, I only have one

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

                              DARLENE STEIN
Exhibit R                                                      App. 257
                                            MOTION TO COMPEL
                                                                 17

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

 2   wide open to -- to take these depositions.

 3                    THE COURT:    Okay.   Counsel, you heard

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

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

 6                    MR. MEADE:    28th.

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

 8   your people for depositions.

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

10   now, Judge.

11                    THE COURT:    Okay.

12                    MR. MOSSER:   I would recommend August 4th

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

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

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

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

17   exactly the same time, which I would discourage that

18   concept as appropriate.

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

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

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

22   good with me, Judge.

23                    MR. MEADE:    If Mr. Mosser would cooperate

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

25   individual -- two individuals and four corporate

                            DARLENE STEIN
Exhibit R                                                        App. 258
                                           MOTION TO COMPEL
                                                              18

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

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

 3   same time or concurrently with each other.      But

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

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

 6   to do it.

 7                   If he will identify who will be the

 8   corporate representatives for those entities, I will

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

10   timewise with one other another.

11                   MR. MOSSER:   As you previously noticed,

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

13   the deponent.

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

15                   MR. MOSSER:   Yes.

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

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

18                   MR. MOSSER:   Thank you.

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

20   the 5th of August?

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

22                   THE COURT:    Oh, both.

23                   MR. MEADE:    Yeah.

24                   THE COURT:    Okay.   All right.   The

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

                           DARLENE STEIN
Exhibit R                                                     App. 259
                                            MOTION TO COMPEL
                                                               19

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

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

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

 4   going to be?

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

 6   have an office here in Houston --

 7                    THE COURT:    Okay.

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

 9   at my offices here in Houston, Your Honor.

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

11   okay with you, Mr. Mosser?

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

13   with me.

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

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

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

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

18   that under advisement.

19                    What else was there?

20                    MR. MEADE:    The objections, which I think

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

22   Compel the responses to discovery that ask for a

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

24   information, including bank statements and -- and tax

25   returns.

                            DARLENE STEIN
Exhibit R                                                      App. 260
                                          MOTION TO COMPEL
                                                                 20

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

 2   client have the bank statements?

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

 4                    THE COURT:    Does your client have the bank

 5   statements?

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

 7   and opposing counsel has collected everything Holtman

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

 9   counsel to deliver those documents that he got from the

10   third-party witness Holtman to us.

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

12   that wasn't my question.

13                    MR. MOSSER:   I understand.

14                    THE COURT:    My question is:   Does your

15   client have them?

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

17   Holtman has them all.

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

19   copy?

20                    MR. MOSSER:   Nobody sends out copies of

21   bank statements any more, Judge.

22                    THE COURT:    Sure they do.   I get them

23   every month.

24                    MR. MOSSER:   I appreciate that, Your

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

                             DARLENE STEIN
Exhibit R                                                        App. 261
                                           MOTION TO COMPEL
                                                              21

 1   do not get bank statement in paper form.

 2                   THE COURT:    Well, do they get them

 3   electronically where they can print them out?

 4                   MR. MOSSER:   My understanding, Your Honor,

 5   is that Holtman has all the bank statements.

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

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

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

 9                   MR. MOSSER:   I haven't made that

10   particular inquiry.

11                   THE COURT:    Yeah.

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

13   and the accountant.

14                   THE COURT:    Well, my guess is your client

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

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

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

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

19   print it out.

20                   MR. MOSSER:   I understand what the Court

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

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

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

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

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

                            DARLENE STEIN
Exhibit R                                                     App. 262
                                          MOTION TO COMPEL
                                                             22

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

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

 3   new accountant located up in Dallas and identified him as

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

 5   send all of the information.

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

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

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

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

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

11   of the information, it wouldn't alleviate their

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

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

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

15   documents.

16                  But there are certainly post termination of

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

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

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

20   asking for.

21                  THE COURT:    Okay.   So --

22                  MR. MEADE:    Their current accountant has

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

24                  THE COURT:    All right.

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

                          DARLENE STEIN
Exhibit R                                                    App. 263
                                           MOTION TO COMPEL
                                                               23

 1   that.

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

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

 4   available to you.

 5                   MR. MOSSER:   From the time that Holtman

 6   was terminated?   Because they already have everything

 7   else.

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

 9   requested.

10                   MR. MOSSER:   And will you order them to

11   deliver us what Holtman has?

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

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

14   you send me a letter asking for it --

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

16   it to him.

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

18   Honor.

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

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

21   send you copies of it.

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

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

24   download it from your computer today.

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

                           DARLENE STEIN
Exhibit R                                                      App. 264
                                            MOTION TO COMPEL
                                                               24

 1                    MR. MOSSER:   Which kind of link?

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

 3   head.

 4                    MR. MEADE:    I will suggest a couple of

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

 6   Mr. Mosser.

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

 8   you.

 9                    MR. MEADE:    You can choose the most

10   convenient means to you.

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

12   at the interrogatories, your objections are overruled.

13                    What else have we got?

14                    MR. MEADE:    The requests for production

15   objections that were --

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

17   also.

18                    Anything else?

19                    MR. MEADE:    And -- nothing else unless

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

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

22   at this --

23                    THE COURT:    I'm not.

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

25   So, I won't --

                            DARLENE STEIN
Exhibit R                                                      App. 265
                                           Motion to Compel
                                                              25

 1                   THE COURT:    And we will reset --

 2                   MR. MEADE:    -- belabor the point.

 3                   THE COURT:    -- the motion for change of

 4   venue until after the deposition.

 5                   MR. MEADE:    Thank you, Your Honor.

 6   Nothing else today.

 7                   THE COURT:    Anything else?

 8                   MR. MOSSER:   No, Your Honor.

 9                   THE COURT:    Counsel, I hope you feel

10   better.   I know --

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

12                   THE COURT:    I know how it feels to get

13   older, but...

14                   MR. MOSSER:   I appreciate it, Judge.

15                   THE COURT:    Okay.   Thank you.

16                   MR. MOSSER:   Yes, ma'am.

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

18   Your Honor.

19                   THE COURT:    Thank you.

20                   (Proceedings concluded.)

21

22

23

24

25

                           DARLENE STEIN
Exhibit R                                                     App. 266
                                       Motion to Compel
                                                            26

 1   STATE OF TEXAS

 2   COUNTY OF HARRIS

 3          I, DARLENE STEIN, Official Court Reporter in and

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

 5   Texas, do hereby certify that the above and foregoing

 6   contains a true and correct transcription of all

 7   portions of evidence and other proceedings requested

 8   in writing by counsel for the parties to be included

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

10   above-styled and numbered cause, all of which

11   occurred in open court or in chambers and were

12   reported by me.

13          I further certify that this Reporter's Record of

14   the proceedings truly and correctly reflects the

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

16          I further certify that the total cost for the

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

18   was paid by Mr. Andrew Meade.

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

25

                            DARLENE STEIN
Exhibit R                                                   App. 267
HAWASHMEADE
HAWASH MEADE GASTON NEESE & CICACK LLP
                                                                                          Samuel B. Haren
                                                                                       sharen@hmgllp.com
                                                                                      713-658-9001 (phone)
                                                                                         713-658-9011 (fax)


                                             June 23, 2014

 Via Email and
Facsimile {972) 267-5072
Mr. Nicholas Mosser
Mr. James Mosser
Mosser Law PLLC
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
ndmosser@mosserlaw.com
jmosser@mosserlaw.com

RE:     Cause No. 2014-10896; Los Cucos Mexican Cafe VIII, Inc. et al v. 8650 Frisco, LLC et al; In the
        133rd Judicial District Court of Harris County, Texas

Messrs. Mosser:

        The Holtman documents are ready for production. They may be downloaded electronically from
the following .url:

                     https://www.dropbox.com/s/36g6hvq2xhr2ust/Combined.pdf

       If you have any problems with the download, we can burn the documents to a CD and have it
delivered to your office. Please let me know which you would prefer.

        In addition, the Court has ovenuled your objections to our Requests for Production 1, 2, 3, 4, 5,
7, and 8. Please provide amended responses and all responsive documents within ten days of this letter.




Cc:     Kelly Stephens (Via Email)




                          2118 Smith Street       I Houston, Texas 77002
                  Main Phone: (713) 658-9001       I Main Facsimile: (713)     658-9011

                                          Exhibit 11
                                           www. h m gil p.c om
      Exhibit R                                                                           App. 268
Sam Haren

From:               Nancy Jacobs
Sent:               Monday, June 23, 2014 5:50PM
To:                 19722675072@rcfax.com
Cc:                 courtdocuments@mosserlaw.com; ndmosser@mosserlaw.com ; jmosser@mosserlaw.com;
                    Andrew Meade; kstephens@stephensdomnitz.com; Sam Haren;
                    courtdocuments@mosserlaw.com; ndmosser@mosserlaw.com; jmosser@mosserlaw.com;
                    Andrew Meade; kstephens@stephensdomnitz.com; Sam Haren
Attachments:        2014-06-23 Ltr to Mossers re Holtman documents.pdf




        Exhibit R                              1                                 App. 269
Sam Haren

From :                          Nancy Jacobs
Sent:                           Monday, June 23, 2014 5:52PM
To:                             Sam Haren
Subject:                        FW: Fax Message Transmission Result to +19722675072 -Sent


FYI


From: RingCentral [mailto:service@ringcentral.com]
Sent: Monday, June 23, 2014 5:53PM
To: Teresa Martinez; Nancy Jacobs
Subject: Fax Message Transmission Result to +19722675072 - Sent




      Here are the results of the 1-page fax you sent from your phone number (713) 946-1 150- Ext. 2:


      Name                             Phone Number         Date and Time                                  Result
      19722675072@rcfax.com            +19722675072         Monday, June 23, 2014 at 05:52PM               Sent


      Your fax(es) included the following file(s), which were rendered into fax format for transmission:

      File Name                                                                                            Result

      2014-06-23 Ltr to Mossers re Hollman documents.pdf                                                   Success




                                                                    1
         Exhibit R                                                                                             App. 270
From:Hicholas D. Mosser                     Sl72 267 5072                07/11/2014 10:29           #224 P. 001/001




        Mo~~SER LAw~ PLL~':;
               17110 DALLAS PARKWAY, SUITE 290 • DALLAS, TEXAS 75248 • 972-733-3223 ·• FAX: 972-267-5072
                                                    MossERLA w.coM


                                                   July 11, 20··14

        Via Facsin1iile: 832-476 ..5460
        Kelly Stephe~ns
        P.O. Box ~79734
        Houston, Texas 77279

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

        Dear Mr.   Ste~phens:


        We were not served with any letter on June 20, 2014 n~questing dates to inspect the
        restaurant at issue. If you believe this to be in error please provide· proof of service and
        I will investi'gate the issue. Similarly, we have not been served with any "prior letter
        requesting production" again if you believe this to be in error please identify the jocation
        you believe you served the letters on and provide us with a proof of service.

        In addition, it is unclear why you 'Nould like us to fax thH 7000 pages back to you that
        you subpoe~naed from Mr. Holtman, or why you would l1ke to incur the expense in
        requiring 1\~r. Verucchi to produce the same 7000 pages that Mr. Holtman purportedly
        sent to hirn. If Mr. Verucchi indeed has any discoverable documents, Mr. Holtman has
        already, though improperly, delivered them to your office. I disagree with your
        contention that your subpoena commands production at Mr. Verucchi's office as the
        notice contains no such similar indication and the addrHss for the notary is clearly in
        Houston.

        I will begin faxing the 7000 pages that Mr. Holtman served on you as you request in
        your recent letter.



                                              ~LC




      Exhibit R
                                              Exhibit 13                                         App. 271
                                                                          RX REPOFT

~~MolE
TEL
DATE     07/11/2014 10:34
   JOB NO.          TYPE    __ __ l_~~ _______!)E~ ~-IN_AT!_~~-TE_L__I_I_D ______,__ ___    DI\ TE      --
                                                                                                                  PAGE   TH1E USE         r·10DE    RESULT
      0712           RX              001                                                   07/11     '10:    32   001    01 28
                                                                                                                            I        G3            OK
                                             97226/':;on




             Exhibit R                                                                                                              App. 272
MOSSER LAW PLLC
       17110 DALLAS PARKWAY, SUITE 290 • DALLAS, TEXAS 75248 • 972-733-3223 • FAX: 972-267-5072
                                            MOSSER LAW .COM


                                           July 14, 2014

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

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

Dear Mr. Stephens:

Enclosed are our supplemental Discovery Responses.

Respectfully, MOSSER LAW PLLC



/s/ Nicholas D. Mosser
Nicholas D. Mosser




Exhibit R
                                        Exhibit 14                                        App. 273
                           COURT COPY

STYLE OF CASE :      LOS ClJCOS MEXICAN CAFE VIII, INC. , ET AL.


                     vs.
                     8650 FRISCO, LLC D/B/A EST/LO GAlJCHO
                     BRAZILIAN STEAXHOUSE, ET AL


CASE NO.:            2014-10896


PERTAIN TO:          (Please refer to subpoena)



FROM:                Holtman & Company, LLC
                     (Business Records)



DELIVER TO:          Mr. Andrew K. Meade
                     Hawash Meade Gaston Neese & Clcack LLP
                     2118 Smith Street
                     Aoustoo, TX 77002



                     IN THE DlSTRlCT COURT OF


                     HARRIS COUNTY, TEXAS


                     133rd JUDICIAL DlSTRICl'

                     Taxable   Costs~ \ I ( .loi)

Ordtr No. S091.00l




Exhibit R                                                          App.    274
                                                                   Holtman000001
                     STYLE OF CASE;

                     LOS CUCOS MEXICAN CAFE VIII, INC., ET AL.


                     \1$,


                     8650 FRISCO, LLC D/B/A ESTILO GAUCHO
                     BRAZIUAN STEAKHOUSE, ET AL


                     CAUSE NO.:             2014-10896


                     RECORDS                (Please refer to subpoena)
                     PERTAIN TO:

                     RECORDS FROM:           Holtman & Company, LLC
                                             (Business Records)


                     DELIVER TO:             Andrew K. Meade I Nancy Jacobs
                                             Hawash Meade Gaston Neese & Cicack LLP
                                             2118 Smith Street
                                             Houston, TX 77002



                            lN THE DISTRICT COURT OF


                            ~SCOUNTY,TEXAS



                            133rd JUDICIAL DISTRICT



Order No. 5091.002




Exhibit R                                                                             App. 275
                                                                                      Holtman000002
                                                            No. 2014-10896

  LOS CUCOS MEXICAN CAFE VUI, lNC., ET AL.                            §         IN THE DlSTRlCf COURT OF
                                                                      §
                                                                      §
  vs.                                                                 §         HARRIS COUNTY, TEXAS
                                                                      §.
  8650 FRISCO, LLC DlBIA ESTTLO GAUCHO                                §
  BRAZILIAN STEAKHOUSE, ET AL.                                        §         J33rd JUDJCJAL 01STR1Cf


                                         NOTICE OF INTENTION
                               TO TAKE DEPOSITION BY WRITTEN QUESTIONS
 To Defendants by and through their attorney of record: Nicholas Mosser
 To other party/parties by and through tbeir attorney of record: Kelly D. Stephens

 You will please take notice that on May 26. 2014 at I0:00 a.m. a deposition by written questions will be taken of the Custodian of
 Records for:


 Hollman & Company, LLC
 876 Loop 337, Suite SOl, New Braunfels, TX 78130


 before a Notary Public for     Gulfstream Legal Group, LLC
                                1300 Texas St
                                Houston, TX. 77002
                                Ph: 113-237-4700 II Ftu:: 888-55.9-7431

 or its designated agent, which deposition with anached questions may be used in evidence upon the trial of the above-styled and
 numbered cause pending in the above-named court. Notice is further given that request is hereby made as authorized under Rule
 200, Texas Rules of Civil Procedure, to the officer taking this deposition to issue a subpoena duces tecum and cause it to be
 served on the witness to produce any and all records as described on the attached questions and/or Exhibit(s) and to tunt aU such
 records over to the officer authorized to take this deposition so that photographic reproductions of the same may be made and
 attached to said deposition.

                                                               Mr. Andt·ew K. Meade
                                                               State Bar No. 14032854
                                                               Mr. Jeremy M. Masten
                                                               State Bar No. 24083454
                                                               Hawash Mtade Gaston Neese & Cicack LLP
                                                               2118 Smith Sta•eet
                                                               Uouston, TX 77002
                                                               Ph: 713-658·9001// Fax: 713-658-9011
                                                               Attorneys for Plaintiffs, Los Cucos Mexican Cafe Vll1.lnc., et al.

 J hereby cenif}' that a true and correct copy of the foregoing instrument has been forwarded to all Counsel of Record by hand-delivery,
 facsimile, and/or certified mail (return receipt requested) on this day.


 Do10d:   "\I    d \ \ t '\                                    s;gnodQ l      ~ ~~
 Order No. 5091


Exhibit R                                                                                                          App.   276
                                                                                                                   Holtman000003
           DEPOSITION SUBPOENA TO TESTIFY OR PRODUCE DOCUMENTS OR TlfJNGS

THE STATE OF TEXAS
To any Sheriff or Constable of the State of Texas or other person authorized to serve subpoenas under Rule 176 of the Texas Rules of
Civil Procedure - GREETJNGS -
You are hereby commanded to subpoena and smnmon the Custodian of Records for:

Holtman & Company, LLC
876 Loop 337, Suite 501, New Braunfels, TX 78130

to be and appear before a Notary Public of my designation for Gulfstream Legal Group, LLC, 1300 Texas St., Houston, TX 77002
or its desjgnated agent on May 26. 2014 at 10:00 a.m~ at the office of the custodian, and there under oath to make answers of certain
written questions to be propounded to the witness and to bring and produce for inspe<:tion and photocopying

ANY AND ALL RECORDS (WHETHER TYPED, HANDWRITTEN OR COMPUTER-GENERATED).
PERTAINING TO 8650 FRISCO LLC, including but not limited to any type of financial records; attounting records;
bank statements; tax records (including 1099 forms, W-2 forms and K-1 forms); reports; teases; guaranties; records of
trademarks and other inteOectual property; office notes; correspondence; and printouts of any type of data stored in
eledtonic format, including any e--mail transmission(s)

then and there to give evidence and there remain from day to day and time to time until discharged according to law at the instance of
the Plaintiff, Los Cucos Mexican Cafe Vlll, Inc., et al., represented by Andrew Meade, Attorney of Record, in that certain Cause No.
2014-10896 pending on the docket of the District Court of the 133rd Judicial District of Harris County, Texas.

This Subpoena is issued under and by virtue of Rule 200 and Notice of Deposition Upon Written Questions on file with the above-
named court, styled

LOS CUCOS MEXICAN CAFE VIII, INC., ET AL. vs.
8650 FRISCO, LLC DfB/A ESTILO GAUCHO BRAZILIAN STEAKHOUSE, ET AL.

WITNESS MY HAND,                          this   :2/51      day of April, 2014.


                ~'~jJ!t;;~        .    MICHAEL R. MILLER
              J~~t\ Notary Publi~. ~wte of _re~as
              I \.J../!~ . .:;1       My CommiSSIOn   Explr~S
                'lj.~.{.~!~~)          November 08, 2014


176.8 Enforcement of Subpoena. (a) ConJempt. Failure by any person without adequate excuse to obey a subpoena served upon that per.son may be
deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be
punished by nne or confinemem, or bot.h.
                                                                OFFICER'S RETURN
Came to hand this _ __ day of                               ·--' 20__, and executed this the ___ day of                          20_ _ , in the
following manner: By delivering to the witness                                                             a true copy hereof.
Returned this ._ _ _ day of _ _ _ _ _ __ , 20__ .

Order No. 5091.002                                                                 PROCESS SERVER




      Exhibit R                                                                                                        App.   277
                                                                                                                       Holtman000004
                                                           No.1014-10896

   LOSCUCOS.MEXICAN C~ VIII, INC., ET AL.                            §         IN THE DISTRICT COURT OF
                                                                     §
                                                                     §
                                                                     §         HARRIS COUJ',"ft, TEXAS
                                                                     §
   8650 FRJSCQ, LLC DIB/A ESTILO GAUCHO                              §
   BRAZILk\N STEAKHQUSE, l:T AL.                                     §         J JJrd JUDICIAL OJSTRICT


                        DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS

 Custodian of Records fur. Holtman & Company, LLC

 Type ofRecords:
 ANY AND ALL RECOJU)S (WBETIIE'R TYPED, HANDWRITTEN OR COMPU'J'ER-G.ENERATED) PER,TAINING
 TO 8650 FRlSCO LLC, i~lu.(ling bqt not limited to any type of ftunciaJ records; accountiag records; bank stat!mtelifS~
 tax records (incl•din& 1099 forms, W-1 forms and l<-i forms); reports; leases; guan•oms; records <if trademarks and
 other intellecttial property; office aotes; correspondence; and printouts of any type of data stored in electrcmic format,
 including &JlY e-,mail transmission(~)


 1. Please state your full name.

       Answer:!z'AI( 0 I_                0

 .2.




 3.    Wbat i$ the title of your position or job?

       Answer:.   />7 E.Jn&"E/(
 4. Have .YO!J accepted the subpoena duces tecum accompanying these direct questions?

       Answer:    V
                  , E \J'

 5. Are these memoranda. reports, records, or data compilations outlined in the subpoena ducc:s 'tecum in your custody or subject
    to your control, supervision or direction?


       A~.-~~~~--------------~----------~----------
 6. Are you .able to identify th* aforementioneti records as the originals or true and correct copies of the or-iginalS?

    Answer: _ _    Y  ~v
                   .L.-_c;;;:....=---------------------------- -


 Order No. 5091.002




Exhibit R                                                                                                          App.   278
                                                                                                                   Holtmanooooos
'   .




        7.   Please. bJllld to 1M Officer taking tbis deposition copies of the memoranda, reports, records. or data compilations .mentioned m
             Question No. S. R.a,ve you t:Qmplied? rt oot, why?

             Answer:    \J
                         I
                           E.~
        8.   Are the copies which ~ ha"e handed        to the Officer taking this deposition true and    correct copies of s.uch ~emo~nda,
             reports, ~:rds or d~ coinpilati®j

             Answer.   YE~
                         I




        9. Were·such ~moranda, reports, rciCQrds; or data oompilations kept in the regular course of business of this (acUity?

             Answer:   '/'t\.~'.
             d'- """""'to
             Answer~Ot?l
                         ;c:;
        lO. Was it in the regular course of business of this f\lcility for a person with knowledge of the acts, events, conditions, opinions or


                             0, e§'
                                   mm               ono ...,.., iofunnation l!>=>fto "'       '"' ruled ;,such """"'




                 Before me, the undersigned authority, on this day ~ally appeared the Witness, known to me to be the perron whose
        name is subscribed to the foregoing .instrument in the capacity therein stated, Who bem~ first d~1y sworn, stated upon his/her oath
        that the answers to the foregping qUC$tions are trJ,ie and correct. I 1\lrtlwr certify 'that the records at!a9hed hereto are exact
        duplicates of the original records.


                 SWOl~N'rO AND SUBSCRlBED before me this                             day.of _    _.Ol<-..:....>=+J'-7-----~· 20 I tf .
                                                                                      [k~~~-
                                         Elisa L van Dyke                NOTARY PUBUC
                                    Nolary Public, Slate of Texas
                                      My Oor•wnlsslon Expires            My Commission Expi~ _ _ _-,_._
                                                                                                     / _;-
                                                                                                         _,             ~/_1--'S,._____
                                          July 21,2015


        Q_rder No. 5091.001




    Exhibit R                                                                                                               App.    279
                                                                                                                            Holtman000006
Exhibit R   App. 280
                                                               -          .
        17110 DALLAS PARKWAY,   SUITE   290 • DALLAS, TEXAS 75.248 • 972-733-3223 •· FAX: 972-267-5072
                                                MOSSER LA W.COM



                                              .July 15, 2014

 Via CMRRIR
 Kelly Stephens
 P.O. Box 7'9734
 Houston, Texas 772179

 RE: Los Cucos VIII, Inc. lEt al., v. 8G50 Frisco LLC., et al.

 Dear Mr. Sjtephens:

 As you are aware the only objections you put before the court related to our discovery
 responses ·were (1) There is no "tax re~turn priviiE!ge." (2) Defendants' bank records are
 discoverable and (3) Defendants' financial records are discoverablle.

 Because these are the only three objections you placed before the Court, these are the
 only objections that have been overrulled our rernaiining objections stand, unchallenged.
 In addition, the correct procedure to require production of documents in a time specific
 manner is to submit an or·der for th1e court to sign stating thE:! date of production and
 what objections were overruled.

 Enclosed are the responsive docurnents subject to our rernainin~~ objections and any
 documents in the possession of Verucchi responsive to your subpoena. Given that I
 have indicated I was going to produce the same documents you currently have in your
 possession, vvhich are r~esponsive tc your requests, please \Nithdraw your motions as
 they are moot.




Exhibit R
                                          Exhibit 15                                           App. 281
                                                                                 I I IUI£oVI ......... VVt••hl r1w1

                                                                                 Chrrs Daniel • District Clerk
                                                                                 Harris County
                                                                                 Envelope No: 1848413
                                                                                 By: ARRIAGA, AMANDA R

                                          CAUSE NO. 2014-10896

     LOS CUCOS MEXICAN CAFE VIII,
     INC.; LOS CUCOS MEXICAN
                                                      §
                                                      §
                                                             IN THE DISTRICT COURT (                                  Ide
     CAFE IV, INC.; MANUEL                            §
     CABRERA; and SERGIO                              §                                                            tiUDE'f
     CABRERA,                                         §
                Plaintiffs                            §
                                                      §                                                       <


                                                                                                         ~
     v.
                •                     •
                                                      §
                                                      §      HARRIS COUNTY,        TEXA:~
                                                                                                    I
                                                                                                                 f                     ~
     8650 FRISCO, LLC D/B/A ESTILO                    §                                                               1-.
                                                                                                             X        c       !?.n ~
     GAUCHO BRAZILIAN                                 §                                                      .,
                                                                                                             .,~      I       Ul:T
                                                                                                                              ... "1
                                                                                                                              "1-·~
     STEAKHOUSE; MANDONA, LLC;                        §
                                                                                                   ,..
                                                                                                   0                          -·Ill
                                                                                                             0
                                                                                                             0        0')     !l.o
     GALOVELHO, LLC; BAHTCHE,                         §                                             c        c
                                                                                                                              or.~~
     LLC; CLAUDIO NUNES; and
                                                                                                   :<         ...
                                                                                                             :I        I'.)   - :I
                                                                                                                              (I)-·
                                                      §                                                      ':C       _...
                                                                                                                       c:;l


     DAVID JEIEL RODRIGUES,                           §                                                       .., ""'"
                                                                                                              -1
                                                                                                                              .,(I)
                                                                                                                              7':-
                                                                                                                                       t:;
                Defendants                            §      133rd JUDICIAL DISTRIC1                           .
                                                                                                              )(




                ORDER GRANTING PLAINTIFFS' MOTION TO QUASH AND
          DENYING DEFENDANTS' MOTION TO QUASH DEPOSITION SUBPOENA OF
                   MIKE VERUCCHI AND FOR A PROTECTIVE ORDER

              On th1s day the Court came to consider Defendants' Motion to Quash Deposition

     Subpoena of Mike Verucclu and for a Protective Order (the "Motion to Quas1").                                  After
                                                                                               I




     considermg the facts, law, and argument of counsel, the Court has decided to DENY,the MotiOn

     to Quash       The Subpoena contained in Exhibit A to the Motion (the "Subpoena) i,s valid and

     enforceable.

              The Court further finds that Defendants filed the Mohon without adequately considering

~    the contents of Exhibit A thereto The Court further finds that Defendants refused to Withdraw
0


     the Mohon once the relevant contents were pointed out.        The Court further finds that the

     Defendants have advanced frivolous arguments without basis m fact or law in support of the

     MotiOn     The Court further finds that this misconduct is part of a larger pattern      <~,f improper
     objections, motions to quash, and mvocations of privilege.




    Exhibit R
                                            Exhibit 16                                                   App. 282
 0l
'+-<
  0
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  <1.l
  gp
~
    I
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'<1"
1:--
'<1"
1:--
,....,
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  ;..;
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,.D



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  <1.l
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  ;::l
  (J
  0
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  <1.l
ll=i                  2
"-E<1.l
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          Exhibit R       App. 283
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this July 29. 2014


     Certified Document Number:        61747433 Total Pages: 2




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com


       Exhibit R                                                                              App. 284
                                                                                                       8/1/2014 4:17:07 PM
                                                                                 Chris Daniel - District Clerk Harris County
                                                                                                     Envelope No. 2029151
                                                                                                          By: Kenya Kossie




MOSSER LAW PLLC
                                            LAWYERS
       17110 DALLAS PARKWAY, SUITE 290 • DALLAS, TEXAS 75248 • 972-733-3223 • FAX: 972-267-5072

                                          August 1, 2014

Via efile:
Kelly Stephens
P.O. Box 79734
Houston, Texas 79734

RE:   Cause No. 2014-10896 Los Cucos Mexican Café VIII, Inc., et al v. 8650 Frisco,
      LLC d/b/a Estilo Gaucho Brazilian Steakhouse, et al

Dear Mr. Stephens:

        In an effort to comply with the Court Order, Defendant has attempted to serve
Plaintiffs’ attorney in charge, Kelly D. Stephens. It appears on two separate occasions as
though Mr. Stephens has disconnected his Fax Machine, as the number “1-832-476-5460"
rings continuously without answer.

Thank you for your attention to this matter.

Respectfully, MOSSER         LAW PLLC LAWYERS

/s/ Nicholas D. Mosser
By: Nicholas D. Mosser

                                 CERTIFICATE OF SERVICE

I certify that on August 1, 2014, a true and correct copy of this document was served to
the following pursuant to Texas Rules of Civil Procedure 21 & 21(a).

Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460

/s/ Nicholas D. Mosser
By: Nicholas D. Mosser




Exhibit R
                                        Exhibit 18                                          App. 285
HAWASHMEADE
HAWASH MEADE GASTON NEESE & CICACK LLP
                                                                                   Samuel B. Haren
                                                                                sharen@hmgllp.com
                                                                               713-658-9001 (phone)
                                                                                  713-658-9011 (fax)



                                        August 1, 2014

Via Email
Mr. James Mosser
Mosser Law PLLC
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
courtdocuments@mosserlaw.com

      Re:    Cause No. 2014-10896; Los Cucos Mexican Cafe VIII, Inc. et al v. 8650 Frisco, LLC et
             al; In the 133rd Judicial District Court ofHanis County, Texas

Dear Mr. Mosser,

       As you are aware, our fax number is 713-658-9011. The documents may also be produced via
FTP linlc or Dropbox. If you are unsure how to use an FTP link or Dropbox, we would be happy to
provide assistance.




                                           :;;:?!. . . .
                                            Samuel B. Haren




                       2118 Smith Street I Houston, Texas 77002
               Main Phone: (713) 658-9001 1 Main Facsimile: (713) 658-9011

   Exhibit R
                                      Exhibit 19                                  App. 286
                                    www.hmgllp.com
Sam Haren
From:                                 Sam Haren
Sent:                                 Friday, August 01, 2014 4:48 PM
To:                                   'courtdocuments@mosserlaw.com'
Subject:                              Los Cucos
Attachments:                          2014-08-01 - Los Cucos - Letter to Mosser re Compliance.pdf


Counsel,

Please see the attached correspondence.

Sam Haren
Associate Attorney




2118 Smith Street | Houston, TX 77002
tel (713) 658-9008 | mobile (713) 855-0528
fax (713) 658-9011
website | vCard | map | email   
 
This email may be a privileged communication. If you are not the intended recipient, please delete it.
 




 
 




                                                                                   1
           Exhibit R                                                                                     App. 287
Settlement Statement8/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC



                                                                                            Page 1
                                           CAUSE NO. 2014-10896
            LOS CUCOS MEXICAN CAFE VIII,                     )    IN THE DISTRICT COURT
            INC.; LOS CUCOS MEXICAN CAFE                     )
            IV, INC.; MANUEL CABRERA;                        )
            AND SERGIO CABRERA                               )
                                                             )
                                                             )
                              PLAINTIFFS,                    )
                                                             )
            VS.                                              )    HARRIS COUNTY, TEXAS
                                                             )
            8650 FRISCO, LLC D/B/A                           )
            ESTILO GAUCHO BRAZILIAN                          )
            STEAKHOUSE; MANDONA, LLC;                        )
            GALOVELHO, LLC; BAHTCHE,                         )
            LLC; CLAUDIO NUNES; AND                          )
            DAVID JEIEL RODRIGUES                            )
                                                             )
                                                             )
                                                             )
                              DEFENDANTS.                    )    133RD JUDICIAL DISTRICT
                                                             )
         ***************************************************************
                                           SETTLEMENT STATEMENT
                                                AUGUST 5, 2014
         ***************************************************************




                                      Gulfstream Legal Group 713-354-2339
       Exhibit R
                                              Exhibit 20                            App. 288
                                                                               e1ecd0a2-c6c9-4df4-8de0-cad05530ed25
Settlement Statement8/5/2014                                                        Settlement Statement8/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC                              Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC



                                                                           Page 2                                                                                  Page 4
    1                          APPEARANCES                                             1          what we are calling a standard bank-type documentation for
    2                                                                                  2          loans and that would include a note or promissory note, a deed
    3        FOR THE PLAINTIFFS:
               KELLY STEPHENS                                                          3          of trust, appropriate UCC-1s to the extent plaintiffs determine
    4          STEPHENS & DOMNITZ, PLLC                                                4          it's necessary in assignment of the lease and any assets
               2000 BERING DRIVE, SUITE 700                                            5          related to the restaurant. The agreements would be with time
    5          HOUSTON, TEXAS 77057
    6                                                                                  6          is of the essence. There would be no cure period for any
             FOR THE PLAINTIFFS:                                                       7          default. They will provide for a monthly wire transfer of the
    7          DAVID KINDER                                                            8          amounts due under the promissory note. And in connection with
               COX SMITH
    8          112 E. PECAN STREET, SUITE 1800
                                                                                       9          the restaurant at issue in this case there will be a $10 paid
               SAN ANTONIO, TEXAS 78205                                               10          up license fee for the name of the restaurant that will be
   9                                                                                  11          limited to that location. There will be no personal guarantees
  10         FOR THE DEFENDANTS:
               JAMES C. MOSSER
                                                                                      12          by the defendants.
  11           MOSSER LAW PLLC                                                        13                     MR. MOSSER: Correct. And we're going to
               17110 DALLAS PKWY, SUITE 290                                           14          dismiss with prejudice the --
  12           DALLAS, TEXAS 75248                                                    15                     MR. STEPHENS: The mutual releases.
               972.267.5072 FAX
  13                                                                                  16                     MR. MOSSER: -- pending lawsuit, releases, dah,
  14                                                                                  17          dah, dah, dah.
  15                                                                                  18                     MR. STEPHENS: Within, say, ten day of
  16
  17                                                                                  19          execution.
  18                                                                                  20                     MR. MOSSER: And dah, dah, dah is spelled D-A-H,
  19                                                                                  21          D-A-H, D-A-H.
  20
  21                                                                                  22                     That sounds like our deal.
  22                                                                                  23                     (End of proceedings.)
  23                                                                                  24
  24
  25                                                                                  25

                                     Gulfstream Legal Group 713-354-2339                                                Gulfstream Legal Group 713-354-2339



Settlement Statement8/5/2014                                                        Settlement Statement8/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC                              Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC



                                                                           Page 3                                                                                  Page 5
   1                    MR. STEPHENS: Okay. We're here to enter into a                  1                           REPORTER'S CERTIFICATION
   2          Rule 11 Agreement and dictate the terms of the settlement                                              SETTLEMENT STATEMENT
                                                                                       2                              AUGUST 5, 2014
   3          agreement for this lawsuit. And the money terms are that 8650
                                                                                       3
   4          Frisco will pay to -- we didn't determine it specifically, but           4             I, Marisol Ramos, Certified Shorthand Reporter in and for
   5          I'll say Cabrera Brothers II.                                            5          the State of Texas, hereby certify that the foregoing is a
   6                    MR. MOSSER: That's the LP?                                     6          correct transcription of the proceedings in the above-entitled
   7                    MR. STEPHENS: Right.
                                                                                       7          matter.
                                                                                       8             I further certify that I am neither counsel for, related
   8                    MR. MOSSER: Cabrera Brothers II, LP I think is                 9          to, nor employed by any of the parties to the action in which
   9          the right name.                                                         10          this hearing was taken, and further that I am not financially
  10                    MR. STEPHENS: That's correct.                                 11          or otherwise interested in the outcome of the action.
  11                    MR. MOSSER: And it's 8650 --
                                                                                      12             Certified to by me this ____ of ____________, 2014.
                                                                                      13
  12                    MR. STEPHENS: Frisco, LLC.                                    14
  13                    MR. MOSSER: -- Frisco, LLC is the payor.                      15                                ______________________________
  14                    MR. STEPHENS: Will pay the amount of $900,000                                                   Marisol Ramos
  15          with a $60,000 payment due upon completion of the paperwork.
                                                                                      16                                Texas CSR No. 8140
                                                                                                                        Expiration Date: 12/31/14
  16                    MR. MOSSER: Sure.                                             17                                Firm Registration No. 245
  17                    MR. STEPHENS: Okay. At execution of the final                                                   Gulfstream Court Reporting
  18          paperwork and remainder of $840,000 payable over five years at          18                                1300 Texas Avenue
  19          6.7 percent interest. And I guess we'll do the first payment                                              Houston, Texas 77002
                                                                                      19                                713.354.2339
  20          due -- today is the 4th, so October 1st.                                                                  713.237.8742 Fax
  21                    MR. MOSSER: Yeah, that's fine. Is that all                    20
  22          right with you guys? Everybody agrees with that.                        21
                                                                                      22
  23                    MR. KINDER: David Kinder for the plaintiffs to
                                                                                      23
  24          further evidence the payment of the amounts due and to document         24
  25          the loan transaction the defendants will agree to enter into            25

                                     Gulfstream Legal Group 713-354-2339                                                Gulfstream Legal Group 713-354-2339




                                                                                                                                             2 (Pages 2 to 5)
             Exhibit R                                                                                                                                        App. 289
                                                                                                                                                  e1ecd0a2-c6c9-4df4-8de0-cad05530ed25
Settlement Statement8/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC

                                                                                                     Page 6

           A                    D            frisco 1:7 3:4,12,13           M             5:6
 aboveentitled 5:6     d 1:7                 further 3:24 5:8,10    mandona 1:8          promissory 4:2,8
 action 5:9,11         dah 4:16,17,17,17                            manuel 1:3           provide 4:7
                                                      G
 agree 3:25              4:20,20,20,20,21                           marisol 5:4,15
                                             galovelho 1:8                                       Q
 agreement 3:2,3         4:21                                       matter 5:7
 agreements 4:5        dallas 2:11,12        gaucho 1:7             mexican 1:2,2
                                             going 4:13                                          R
 agrees 3:22           date 5:16                                    money 3:3            r 2:1
 amount 3:14           david 1:9 2:7 3:23    guarantees 4:11        monthly 4:7
                                             guess 3:19                                  ramos 5:4,15
 amounts 3:24 4:8      day 4:18                                     mosser 2:10,11 3:6   registration 5:17
 antonio 2:8           deal 4:22             gulfstream 5:17         3:8,11,13,16,21
                                             guys 3:22                                   related 4:5 5:8
 appropriate 4:3       deed 4:2                                      4:13,16,20          releases 4:15,16
 assets 4:4            default 4:7                    H             mutual 4:15          remainder 3:18
 assignment 4:4        defendants 1:11       harris 1:6                                  reporter 5:4
 august 1:15 5:2         2:10 3:25 4:12                                     N
                                             hearing 5:10           n 2:1                reporters 5:1
 avenue 5:18           determine 3:4 4:3     houston 2:5 5:18                            reporting 5:17
                       dictate 3:2                                  name 3:9 4:10
          B                                                         necessary 4:4        restaurant 4:5,9,10
                       didnt 3:4                       I                                 right 3:7,9,22
 b 1:7                 dismiss 4:14          ii 3:5,8               neither 5:8
 bahtche 1:8                                                        note 4:2,2,8         rodrigues 1:9
                       district 1:2,11       ill 3:5                                     rule 3:2
 banktype 4:1          document 3:24         include 4:2            nunes 1:9
 bering 2:4            documentation 4:1     interest 3:19                                       S
 brazilian 1:7         domnitz 2:4                                           O
                                             interested 5:11        october 3:20      s 2:1
 brothers 3:5,8        drive 2:4             issue 4:9                                san 2:8
                       due 3:15,20,24 4:8                           okay 3:1,17
           C                                 iv 1:3                 outcome 5:11      sergio 1:3
 c 2:1,10                                                                             settlement 1:14 3:2
                                  E                   J
 cabrera 1:3,3 3:5,8                                                       P            5:1
                       e 2:1,1,8           james 2:10                                 shorthand 5:4
 cafe 1:2,2            employed 5:9                              p 2:1,1
                                           jeiel 1:9             paid 4:9             smith 2:7
 calling 4:1           enter 3:1,25        judicial 1:11
 case 4:9              essence 4:6                               paperwork 3:15,18 sounds 4:22
 cause 1:1                                                       parties 5:9          specifically 3:4
                       estilo 1:7                    K                                spelled 4:20
 certification 5:1     everybody 3:22      kelly 2:3             pay 3:4,14
                                                                                      standard 4:1
 certified 5:4,12      evidence 3:24       kinder 2:7 3:23,23 payable 3:18            state 5:5
 certify 5:5,8         execution 3:17 4:19                       payment 3:15,19
 claudio 1:9                                         L             3:24               statement 1:14 5:1
                       expiration 5:16                                                steakhouse 1:8
 completion 3:15       extent 4:3          law 2:11              payor 3:13
 connection 4:8                                                  pecan 2:8            stephens 2:3,4 3:1
                                           lawsuit 3:3 4:16
 correct 3:10 4:13                F                              pending 4:16           3:7,10,12,14,17
                                           lease 4:4
   5:6                 fax 2:12 5:19                             percent 3:19           4:15,18
                                           license 4:10
 counsel 5:8           fee 4:10                                  period 4:6           street 2:8
                                           limited 4:11
                                                                                      suite 2:4,8,11
 county 1:6            final 3:17          llc 1:7,8,8,9 3:12,13 personal 4:11
 court 1:2 5:17        financially 5:10                          pkwy 2:11            sure 3:16
                                           loan 3:25
 cox 2:7               fine 3:21           loans 4:2             plaintiffs 1:5 2:3,6
                                                                                                T
 csr 5:16              firm 5:17           location 4:11           3:23 4:3
                                                                 pllc 2:4,11          taken 5:10
 cucos 1:2,2           first 3:19          los 1:2,2                                  ten 4:18
 cure 4:6              five 3:18           lp 3:6,8              prejudice 4:14
                                                                 proceedings 4:23     terms 3:2,3
                       foregoing 5:5

                                      Gulfstream Legal Group 713-354-2339
       Exhibit R                                                                           App. 290
Settlement Statement8/5/2014
Los Cucos Mexican Cafe' VIII, Inc. v. 8650 Frisco, LLC

                                                                                 Page 7

 texas 1:6 2:5,8,12    2339 5:19
   5:5,16,18,18        237 5:19
 thats 3:6,10,21       245 5:17
 think 3:8             267 2:12
 time 4:5              290 2:11
 today 3:20
 transaction 3:25                 3
 transcription 5:6     31 5:16
 transfer 4:7          354 5:19
 trust 4:3
                                  4
          U            4th 3:20
 ucc1s 4:3
                                 5
            V          5 1:15 5:2
 viii 1:2              5072 2:12
 vs 1:6
                                  6
            W          6 3:19
 wire 4:7              60 3:15

            X                     7
                       7 3:19
          Y            700 2:4
 yeah 3:21             713 5:19,19
 years 3:18            75248 2:12
                       77002 5:18
            Z          77057 2:5
                       78205 2:8
          0
 000 3:14,15,18                 8
                       8140 5:16
            1          840 3:18
 10 4:9                8650 1:7 3:3,11
 11 3:2                8742 5:19
 112 2:8
 12 5:16                          9
 1300 5:18             900 3:14
 133rd 1:11            972 2:12
 14 5:16
 17110 2:11
 1800 2:8
 1st 3:20
            2
 2000 2:4
 2014 1:15 5:2,12
 201410896 1:1


                                      Gulfstream Legal Group 713-354-2339
        Exhibit R                                                           App. 291
Jabary v. City of Allen, Not Reported in S.W.3d (2013)


                                                                  result in the appeal being dismissed without further notice.
                                                                  See id. 37.3(b). Appellant responded by filing a “notice of
                  2013 WL 1803739
                                                                  clerk's refusal of payment” and “motion to require clerk to file
    Only the Westlaw citation is currently available.
                                                                  clerk's record.” He asserts in both that by letter dated February
          SEE TX R RAP RULE 47.2 FOR                              5, 2013, the district clerk informed him that the “breakdown
    DESIGNATION AND SIGNING OF OPINIONS.                          of the costs” for the clerk's record was as follows:

             MEMORANDUM OPINION                                     Clerk's Record: 8517 pages @ $1.50 per page totaling:
              Court of Appeals of Texas,                            $12.775.90
                        Dallas.
                                                                    Paper copy of Record: 8517 pages @ $.25 per page
                Mike JABARY, Appellant                              totaling: $2.129.25
                             v.
                                                                    And/or CD copy of Record: $20.00.
            CITY OF ALLEN and Peter Smith,
              Esq., City Attorney, Appellees.                     Construing the letter to mean he could choose from any of
                                                                  the three “formats,” appellant requested a “CD copy” of the
       No. 05–12–01332–CV.           |   April 29, 2013.          record and tendered a check to the clerk on March 12, 2013
                                                                  in the amount of $20. The district clerk, however, returned
On Appeal from the 219th Judicial District Court, Collin
                                                                  the check to appellant, explaining in a letter dated March 14,
County, Texas, Trial Court Cause No. 219–827–2011. Scott
                                                                  2013 that “if the Clerk's Record is not paid for and prepared
Becker, Judge.
                                                                  for filing with the Fifth Court of Appeals, there is no CD copy
Attorneys and Law Firms                                           available to produce.” Appellant contends the clerk cannot
                                                                  “chang[e her] mind on what [she] want[s] to charge” for the
Las Mosser, James C. Mosser, Mosser Law, PLLC, Dallas,            record and “should be held to [her] agreement.” Appellant
TX, for Mike Jabary.                                              requests we order the clerk to “deliver the record on appeal to
                                                                  this Court's Clerk for filing and award [appellant] attorney's
Victoria Thomas, Nichols, Jackson, Dillard, Hager, and            fees.” Appellees respond, asserting the clerk's letter setting
Smith, Dallas, TX, for City of Allen and Peter Smith, Esq.,       forth the schedule of costs “plainly state [s] ... there is but one
City Attorney.                                                    way to have the ‘Clerk's Record’ filed ... -by paying the $1.50
                                                                  per page fee.”
Before Justices MOSELEY, Bridges, and LANG–MIERS.

Opinion                                                           Texas Rule of Appellate Procedure 35.3(a) provides that the
                                                                  clerk “is responsible for preparing, certifying, and timely
                                                                  filing the clerk's record if: ... (2) the party responsible for
               MEMORANDUM OPINION
                                                                  paying for the preparation of the clerk's record has paid the
Opinion by Justice LANG–MIERS.                                    clerk's fee, has made satisfactory arrangements with the clerk
                                                                  to pay the fee, or is entitled to appeal without paying the fee.”
 *1 This appeal has been pending since September 28, 2012.        See Tex.R.App. P. 35.3(a). Pursuant to Texas Supreme Court
On November 29, 2012, the district court clerk informed the       order and our local rules, the clerk may file either a paper
Court that the clerk's record, which was overdue, had not been    record or an electronic record submitted to the Texas Appeals
filed because payment had not yet been received. See TEX. R.      Management and E-filing System web portal. See id. app. C;
APP. P. 35.1, 35 .3(a). On March 6, 2013, after the trial court   5th Tex.App. (Dallas) Loc. R. 11.2(9).
sustained two contests to appellant's affidavit of inability
to pay appellate costs, we ordered appellant to pay, within       Although appellant argues the clerk's schedule of costs
ten days of the date of the order, the trial court clerk's fee    reflects he could choose to have a CD copy of the record filed,
for preparation of the record. See Uranga v. Tex. Workforce       the supreme court order and our local rules do not allow for
Comm'n, 319 S.W.3d 787, 791 (Tex.App.-El Paso 2010, no            the record to be filed in that format. See Tex.R.App. P. app.
pet.) (appellant bears burden of bringing forward appellate       C; 5th Tex.App. (Dallas) Loc. R. 11.2(9). Additionally, any
record). We cautioned appellant that failure to comply would      confusion that may have been created by the clerk's February




                                                    Exhibit 21
    Exhibit ©R2014 Thomson Reuters. No claim to original U.S. Government Works.                                 App. 292          1
Jabary v. City of Allen, Not Reported in S.W.3d (2013)



5th letter was clarified by the clerk when she stated in her
                                                                       *2 We DENY appellant's motion to order the clerk to file
second letter to appellant that the $20 would secure a CD copy
                                                                      the CD copy of the record and for attorney's fees. Because
of the record once the record had been “paid for and prepared
                                                                      the record has not been filed as a result of appellant's
for filing.” Appellant has had more than a month since then
                                                                      failure to pay for the record, and appellant has been given a
to pay or make arrangements to pay the required fee but has
                                                                      reasonable opportunity to pay or make arrangements to pay,
failed to do so, and nothing in either his “notice of clerk's
                                                                      we DISMISS the appeal. See id. 37.3(b).
refusal of payment” or “motion to require clerk to file clerk's
record” reflects his intent to do so.

End of Document                                                   © 2014 Thomson Reuters. No claim to original U.S. Government Works.




    Exhibit ©R2014 Thomson Reuters. No claim to original U.S. Government Works.                                   App. 293         2
In re Pendragon Transp. LLC, 423 S.W.3d 537 (2014)


                                                                 a special master for the purpose of attending depositions in
                                                                 this case to make rulings on any objections, assertions of
                    423 S.W.3d 537
                                                                 privilege, and instructions not to answer questions. In its
                Court of Appeals of Texas,
                                                                 order, the court required Pendragon to pay the special master's
                          Dallas.
                                                                 fees in advance of each deposition, subject to reallocation
                In re: PENDRAGON                                 later. Pendragon asserts both actions were an abuse of
           TRANSPORTATION LLC, Relator.                          discretion. We conclude Pendragon has waived its complaint
                                                                 about the appointment of the special master due to its delay in
       No. 05–13–01749–CV.          |    Feb. 21, 2014.          filing its petition for writ of mandamus. We further conclude
                                                                 the trial court abused its discretion in ordering Pendragon
Synopsis                                                         to pay the special master's fees up front. Accordingly, we
Background: Plaintiff filed written objection to sua sponte      conditionally *539 grant the writ of mandamus in part and
order appointing special master to attend depositions            deny it in part.
related to plaintiff's action alleging various causes of
action against defendants, including breach of contract and      Pendragon sued six defendants for various causes of action,
misappropriation of trade secrets. The 193rd Judicial District   including breach of contract and misappropriation of trade
Court, Dallas County, Carl Ginsberg, J., denied objection.       secrets. In April 2013, after the deposition of Pendragon's
Plaintiff filed petition for writ of mandamus.                   corporate representative, Nicholas Massey, defendant Black
                                                                 Bull Towing LLC filed a “motion to compel answers at
                                                                 deposition.” Black Bull asserted that at the deposition,
Holdings: The Court of Appeals, Brown, J., held that:            Pendragon's attorney instructed Massey not to answer basic
                                                                 questions as well as questions about a non-compete clause,
[1] plaintiff waived argument for review that trial court        which is the basis for Pendragon's lawsuit, and questions
abused its discretion in appointing special master, but          about any documents Massey brought to the deposition. Black
                                                                 Bull sought an order requiring Massey to answer the questions
[2] order requiring plaintiff to pay special master's fees in    asked in the deposition. It is not clear whether the court ruled
advance was abuse of discretion for which there was no           on this motion, but at some point, due to “the inability of
adequate appellate remedy.                                       Counsel to cooperate on basic matters,” the court ordered
                                                                 depositions to take place at the courthouse so the court would
                                                                 be available to rule on objections.
Writ conditionally granted in part and denied in part.
                                                                 On June 12, 2013, defendant Victor Huhem took Massey's
                                                                 deposition, both in his corporate capacity and in his individual
Attorneys and Law Firms                                          capacity. The deposition took place in the court's jury room.
                                                                 At the start of the deposition of Massey in his corporate
 *538 James C. Mosser, Alexis F. Steinberg, Mosser Law,
                                                                 capacity, Pendragon's attorney indicated Massey would not
PLLC, Dallas, for Relator.
                                                                 return in the afternoon to participate in a deposition in his
Victor Huhem, Huhem Law Firm, PLLC, Fort Worth, for              individual capacity because the subpoena was invalid. Stating
Appellee.                                                        that it would be a complete waste of time to have Massey
                                                                 come back another time, the court ruled that Massey would
Before Justices MOSELEY, FILLMORE, and BROWN.                    be deposed in both capacities.

Opinion
                                                                 Throughout the depositions, Pendragon's attorney frequently
                                                                 objected and sometimes instructed Massey not to answer
                         OPINION                                 questions on grounds they were irrelevant and “beyond the
                                                                 scope of discovery.” On numerous times the trial court
Opinion by Justice BROWN.                                        overruled Pendragon's objections and also ruled that certain
                                                                 areas of inquiry were discoverable and instructed Massey to
Relator Pendragon Transportation LLC filed this mandamus
                                                                 answer.
proceeding after the trial court signed an order appointing



                                                    Exhibit 22
    Exhibit ©R2014 Thomson Reuters. No claim to original U.S. Government Works.                              App. 294         1
In re Pendragon Transp. LLC, 423 S.W.3d 537 (2014)


                                                                   (Tex.1993) (orig. proceeding). Although mandamus is not
On that same day, June 12, 2013, the trial court sua sponte        an equitable remedy, its issuance is largely controlled by
appointed a special master for the limited purpose of attending    equitable principles. Id. One such principle is that “equity aids
future depositions to make “rulings on objections, assertions      the diligent and not those who slumber on their rights.” Id.
of privilege, and instructions not to answer questions.” In its    Thus, delaying the filing of a petition for mandamus relief
order, which set out many of the facts recounted above, the        may waive the right to mandamus unless the relator can justify
court stated that Pendragon's counsel did not have legitimate      the delay. In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 676
grounds for instructing the witness not to answer questions.       (Tex.2009) (orig. proceeding).
The court also indicated the attorney's “form” objections were
“wholly without merit.” The court stated that it was apparent       [5] [6] Pendragon filed its petition for writ of mandamus
Pendragon's counsel was “improperly trying to limit the flow       more than six months after the trial court appointed the special
of information at the deposition.” The court further stated that   master. It waited over two months to ask the trial court
“it appears manifest that all depositions in this case must be     to reconsider its order appointing the master and, after the
attended by a judicial officer who can make rulings at the         trial court upheld its order, still waited another three-and-a-
depositions, or else the depositions will simply decay into        half months to file its petition with this Court. Significantly,
chaos and not be able to proceed.” The trial judge stated he       Pendragon filed its petition less than two weeks before trial, a
could not be physically present at every deposition in this        fact it omitted in its request for mandamus relief. It has offered
case. The court found that this was an exceptional case and        no justification for its delay. Under these circumstances,
that good cause existed to appoint a special master to attend      we conclude Pendragon's delay bars its right to complain
the depositions.                                                   of the master's appointment. See Rivercenter, 858 S.W.2d
                                                                   at 367 (mandamus relief denied where relator waited over
On August 20, 2013, Pendragon filed a written objection            four months to seek mandamus without justification); Int'l
to the appointment of the master. At a hearing on the              Awards, Inc. v. Medina, 900 S.W.2d 934, 936 (Tex.App.-
objection on September 18, 2013, the trial court denied the        Amarillo 1995, orig. proceeding) (delay of four months and
objection. On December 27, 2013, just eleven days before           until eve of trial was ample grounds for denying mandamus
trial, Pendragon filed its petition for writ of mandamus in this   relief); Bailey v. Baker, 696 S.W.2d 255, 256 (Tex.App.-
Court. (The trial has since been rescheduled for the end of        Houston [14th Dist.] 1985, orig. proceeding) (denying leave
May 2014.)                                                         to file petition for writ of mandamus where there was almost
                                                                   four-month delay, no explanation for delay, and relator waited
 [1] In its petition for writ of mandamus, Pendragon               two weeks prior to trial). 1
challenges the trial court's appointment of a special master.
The appointment of special masters is governed by *540              *541 Pendragon also challenges that portion of the trial
rule 171 of the Texas Rules of Civil Procedure. Rule 171           court's order requiring it to pay the master's fees before they
provides that the court may, in exceptional cases, for good        accrued. The court's order states the following regarding the
cause appoint a master in chancery who shall perform all the       master's fees:
duties required of him by the court. TEX.R. CIV. P. 171.
A trial court abuses its discretion when it appoints a master                   The Master in Chancery's reasonable
without the parties' consent or without finding that the case                   and necessary fees (not to exceed the
is exceptional and good cause exists for the appointment.                       rate of $225.00 per hour) shall be
Simpson v. Canales, 806 S.W.2d 802, 811 (Tex.1991) (orig.                       taxed as costs of court. As an initial
proceeding). Pendragon asserts that this is not an exceptional                  matter, Plaintiff shall be responsible
case and that there is not good cause for appointing a master.                  for paying the Master in Chancery's
                                                                                fees as they are incurred (payable in
 [2] [3] [4] A writ of mandamus issues to correct a clear                       the form of retainers in an amount of
abuse of discretion when no adequate remedy by appeal                           no less than $1,000.00, at least 3 days
exists. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.1992)                     in advance before each deposition),
(orig. proceeding). Mandamus is an extraordinary remedy,                        subject to reallocation at a later date,
not issued as a matter of right, but at the discretion of the                   depending on, inter alia, who is the
court. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367                       prevailing party in the suit.



    Exhibit ©R2014 Thomson Reuters. No claim to original U.S. Government Works.                                 App. 295         2
In re Pendragon Transp. LLC, 423 S.W.3d 537 (2014)


                                                               master's fees have actually accrued is an abuse of discretion
 [7] [8] [9] The only basis for requiring a party to give because it improperly requires a party to post security for
security for costs before final judgment is Texas Rule of      anticipated costs before final judgment in violation of rule
Civil Procedure 143. TransAmerican Natural Gas Corp. v.        143. TransAmerican, 877 S.W.2d at 844. Here, we conclude
Mancias, 877 S.W.2d 840, 844 (Tex.App.-Corpus Christi          the trial court's order requiring the master's fees to be paid in
1994, orig. proceeding [leave denied] ). Rule 143 provides     advance   was a clear abuse of discretion for which there is no
                                                               adequate remedy by appeal. See id. Because the trial court's
that a party seeking affirmative relief may be ruled to give
                                                               order regarding fees was clearly in direct contravention of the
security for costs at any time before final judgment, upon
                                                               rules of civil procedure, Pendragon's delay in filing its petition
motion of any party, or any officer of the court interested in
                                                               does not bar its right to relief on this issue.
the costs accruing in such suit, or by the court upon its own
motion. TEX.R. CIV. P. 143. Rule 143 does not authorize the
                                                               In accordance with this opinion, we conditionally grant
court to fix bond in a specific amount; it must be open-ended.
                                                               Pendragon's writ of mandamus in part. A writ will issue only
Dilmore v. Russell, 519 S.W.2d 278, 279 (Tex.Civ.App.-
                                                               in the event the trial court fails to vacate the portion of its
Dallas 1975, no writ); Mosher v. Tunnell, 400 S.W.2d 402,
                                                               June 12, 2013 order requiring Pendragon to pay the special
404 (Tex.Civ.App.-Houston 1966, writ ref'd n.r.e.); see also
                                                               master's fees before they accrue. We deny Pendragon's writ
TEX.R. CIV. P. 146 (court can also require deposit for court
                                                               of mandamus in all other respects.
costs but only in amount sufficient to pay accrued costs).
Requiring a party to pay for a master's services before the


Footnotes
1      Because we have determined that Pendragon may not complain about the appointment of the special master, we do not reach the
       issue of whether it was proper for the trial court to appoint a special master to attend and rule on objections during depositions. We do
       note, however, the “exceptional case” standard for appointment of a special master is an extremely high one. See, e.g., Simpson, 806
       S.W.2d at 812 (toxic tort action against eighteen defendants, several cross-actions, and eight discovery motions requiring hearings in
       first ten months was not an exceptional case and thus, no good cause existed for appointing special master to oversee discovery); In re
       Behringer Harvard TIC Mgmt. Servs. LP, 316 S.W.3d 831, 831 (Tex.App.-Dallas 2010, orig. proceeding) (court abused its discretion
       in appointing master to conduct in camera review of certain documents because of trial schedule and complexities of discovery in
       case); Owens–Corning Fiberglas Corp. v. Caldwell, 830 S.W.2d 622, 626–27 (Tex.App.-Houston [1st Dist.] 1991, orig. proceeding)
       (case involving five defendants, seven requests for production, one set of interrogatories served on all defendants, and two motions
       to compel requiring two hearings was not exceptional).


End of Document                                                      © 2014 Thomson Reuters. No claim to original U.S. Government Works.




    Exhibit ©R2014 Thomson Reuters. No claim to original U.S. Government Works.                                           App. 296           3
                                                                                ACCEPTED
                                                                                225EFJ017428920
                                                                                FIFTH COURT OF APPEALS
                                                                                DALLAS, TEXAS
                                                                                13 April 12 P3:25
                                                                                Lisa Matz
                                   NO. 05-12-01332-CV                           CLERK
MIKE JABARY,                                § IN THE FIFTH DISTRICT
Appellant,                                  §
                                                                      FILED IN
                                            §                  5th COURT OF APPEALS
V.                                          § COURT OF APPEALSDALLAS, TEXAS
                                            §                  4/12/2013 3:25:39 PM
                                            §                        LISA MATZ
CITY OF ALLEN, et. al.                      §                          Clerk
                                            §
Appellees.                                  § DALLAS, TEXAS

              MOTION TO REQUIRE CLERK TO FILE CLERK’S RECORD

     On March 12, 2013, Appellant paid the necessary Clerks fees for the Clerk’s Record

in the above styled case pursuant to the letter from the Collin County District Clerk’s office

dated February 5, 2013. Exhibit A. The Clerk’s letter clearly stated the costs would be the

following:

              Clerk's Record: 8517 pages @$1.50 per page totalling:
              $12,775.90.0

              Paper copy of Record: 8517 pages @ $.25 per page totalling:
              $2129.25

              And/or CD copy of Record: $20.00.
Exhibit A.

     Clearly then there are three methods of receiving the Clerks Record, the first, the

second, and/or the CD copy of Record. It is clear that in Texas “(a) Words and phrases

shall be read in context and construed according to the rules of grammar and common

usage.” V.T.C.A., Government Code § 311.011, at least as it relates to the code

construction act. But, should Jabary be punished because of the District Clerk’s lack of

understanding and poor use of English grammar? The use of the ambiguous phrase

“and/or” has been “frequently condemned as improper and confusing,” and at least one

court has construed the phrase against the drafter.” See Newlon v. Newlon, 310 Ky. 737,




Exhibit R
                                     Exhibit 23                                   App. 297
220 S.W.2d 961, 963 (Ky.1949). This court should construe the document against the

drafter, the District Clerk.

     The District Clerk used the hated “and/or” language. Drafting experts are against the

use of the term. See Bryan A. Garner, Legal Writing in Plain English: A Text with

Exercises 112-13 (2000). 11 Tex. Rev. Ent. & Sports L. 205, 211 -212 (Spring 2010).

     Appellant using the plain English meaning of the phrase “and/or” requested the third

method of receiving the Clerks Record, and submitted a check in the amount of $20.00 to

the Clerks Office. Proof of payment is indicated in Exhibit B. As the Texas courts have

observed, a simple review of grammar indicates that the disjunctive “or” introduces an

alternative. Dorn v. Best, 1855 WL 4971, 2 (Tex. 1855). Utilizing the disjunctive form

Jabary had a choice between the methods of receiving the clerks record. Heritage on San

Gabriel Homeowners Ass'n v. Texas Com'n on Environmental Quality, 2012 WL

6761531, 6 (Tex.App.–Austin,2012); Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578,

581 (Tex.2000).

     The words “‘and’ and ‘or,’ are in no sense interchangeable terms” In re Brookshire

Grocery Co., 250 S.W.3d 66 (Tex. 2008). The District Clerk should not be able to destroy

Jabary’s right to appeal by changing their mind on what they want to charge for a record.

The District Clerk of Collin County refused the check and returned it to Appellant’s

Counsel’s office. Exhibit C. Because of the District Clerk’s office, deciding she would not

provide the record on CD, Jabary’s case is now threatened. The District Clerk should be

held to their agreement, and the letter requesting payment for the Record with three

alternative choices, wherein Jabary chose the third option. Jabary chose the option,

accepted the offer by the District Clerk and tendered payment as requested by the Collin




Exhibit R                                                                       App. 298
County District Clerk. Jabary has made the requisite effort to retrieve the District Clerk’s

Record, the District Clerk refuses to produce the appellate record to this tribunal.

                                          Prayer

     Jabary asks this court to order the Collin County District Clerk to immediately deliver

the record on appeal to this Court’s Clerk for filing and award attorney’s fees to Mr. Jabary

in the amount of $2,500.

Respectfully Submitted, MOSSER LAW PLLC LAWYERS

/s/ James C. Mosser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
Telephone: (972) 733-3223
Facsimile: (972) 267-5072
Lawyers for Plaintiff, Mike Jabary.


                                CERTIFICATE OF SERVICE
I certify that on April 12, 2013 a true and correct copy of the foregoing was served by
facsimile transmission on pursuant to Texas Rules of Civil Procedure 21 & 21a to the
following:


Victoria Thomas
City Attorney - City of Allen
500 N. Akard Street
Dallas, Texas 75201
Facsimile: 214-965-0010

/s/ Nicholas D. Mosser

Nicholas D. Mosser




Exhibit R                                                                        App. 299
                                                               ACCEPTED
                                                               225EFJ017580892
                                                               FIFTH COURT OF APPEALS
                                                               DALLAS, TEXAS
                                                               13 July 5 P3:55
                                                               Lisa Matz
                                                               CLERK


                                                              FILED IN
                                                       5th COURT OF APPEALS
                                                           DALLAS, TEXAS
                         No.________________________   7/5/2013 3:55:00 PM
                                                             LISA MATZ
                                                               Clerk




                                       IN THE

             IN THE FIFTH JUDICIAL DISTRICT COURT OF APPEALS

                                  at DALLAS, TEXAS

                        IN RE MOSSER LAW PLLC, and

                                  James C. Mosser

                                      Relator

   ORIGINAL PROCEEDING FROM THE 160th JUDICIAL DISTRICT COURT OF
                      DALLAS COUNTY, TEXAS

        PETITION FOR WRIT OF MANDAMUS and WRIT OF PROHIBITION



MOSSER LAW PLLC
James C. Mosser
Texas Bar No. 00789784
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
Telephone 972-733-3223
Facsimile 972-267-5072
LAWYER FOR RELATOR

ORAL ARGUMENT REQUESTED




Exhibit R
                                  Exhibit 24                    App. 300
                        IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties, as well as the names and addresses of all
counsel:


MOSSER LAW PLLC                                                               RELATORS
and James C. Mosser

James C. Mosser                                                       Lawyer for Relators
Texas Bar No. 00789784
17110 Dallas Psarkway, Suite 290
Dallas, Texas 75248
Telephone 972-733-3223
Facsimile 972-267-5072


Paul A. Hoffman, Esq.                                 Attorney for Real Parties in Interest
5400 LBJ Freeway, Ste. 1200
Dallas, Texas 75240
Facsimile: 972-380-2620

Jones and Mauldin                                                  Real Parties in Interest
Real Estate Partnership, LTD.

Hon. Sheryl Day McFarlin                                                  RESPONDENT
Associate Judge of the 160th District Court
George L. Allen, Sr. Courts Bldg.
600 Commerce St., Box 740
Dallas, Texas 75202




                                              i



Exhibit R                                                                       App. 301
                                              TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i


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


INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi


STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii


STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix


ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
         Issue Number One: The 160th District Court does not have personal jurisdiction
               over MOSSER LAW PLLC and or James C. Mosser, or subject matter
               jurisdiction related to the client file.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
          The ORDER RE JUNE 28, 2013 HEARING, related to MOSSER LAW PLLC and
               or James C. Mosser, is void ab initio.. . . . . . . . . . . . . . . . . . . . . . . . . . . ix


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


ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2


PRAYER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6


CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7


VERIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8


APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


RECORD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10



                                                               ii



Exhibit R                                                                                                       App. 302
                                               INDEX OF AUTHORITIES
                                                             CASES
Bolden v. Greenpoint Mortgage Funding, Inc., No. 3:04-CV-0379-P, 2004 U.S. Dist.
LEXIS 20508, at *14 (N.D. Tex., Oct. 13, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3


Browning v. Placke, 698 S.W.2d 362, 363, 29 Tex. Sup. Ct. J. 33 (Tex. 1985).. . . . . 4


Casey v. March 1867 WL 4579, 2 (Tex.) (Tex. 1867). . . . . . . . . . . . . . . . . . . . . . . . . 5


City of Tyler v. Beck, 196 S.W.3d 784, 787 (Tex. 2006).. . . . . . . . . . . . . . . . . . . . . . . 3


Cotton v. Cotton, 57 S.W.3d 506, 511 (Tex. App.--Waco 2001, no pet.). . . . . . . . . . . 4


Del Peterson, D.D. Associates, Inc. v. Stromberger 2005 WL
2363059,(Tex.App.-Dallas,2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4


Dinyes v. Dinyes, 2001 Tex. App. LEXIS 2303 (Tex. App. 2001). . . . . . . . . . . . . . . . . 4


Gray v. PHI Resources, Ltd., 710 S.W.2d 566, 567 (Tex. 1986). . . . . . . . . . . . . . . . . 3


Griffith v. Geffen & Jacobsen, P.C., 693 S.W.2d 724, 728 (Tex. App. - Dallas 1985, no
writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5


Hong Kong Dev., Inc. v. Nguyen, No. 01-04-00586-CV, 229 S.W .3d 415, 2007 Tex.
App. LEXIS 4494, 2007 WL 1633360, at *13 (Tex. App.--Houston [1st Dist.] June 7,
2007, no pet. h.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5


In re Ashton 266 S.W.3d 602 (Tex.App.–Dallas,2008). . . . . . . . . . . . . . . . . . . . . . . . . 4


In re Dana Corp., 138 S.W.3d 298, 301 (Tex.2004) .. . . . . . . . . . . . . . . . . . . . . . . . . . 6


In re Does 1-10, 242 S.W.3d 805, 819 (Tex. App.—Texarkana 2007, no pet.). . . . . . . 6


In re Mask, 198 S.W.3d 231, 234 (Tex. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 4


                                                                  iii



Exhibit R                                                                                                             App. 303
In re Mosser Mallers PLLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6


In re Sw. Bell Tel. Co.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3


Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985). . . . . . . . . . . 3


Klein v. Hernandez, 2007 Tex. App. LEXIS 6284 (Tex. App. 2007). . . . . . . . . . . . . . . 5


Nolan v. Foreman, 665 F.2d 738, 743 (5 th cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . 5


Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S. Ct. 404, 98 L. Ed.
2d 415 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3


Primrose Operating Co., Inc. v. Jones, 102 S.W.3d 188, 193 (Tex.App.--Amarillo
2003, pet. denied)
             . ........................................................ 4


Randolph, Bowen & Co. v. Randolph, 34 Tex. 181, 184-185 (Tex. 1871). . . . . . . . . 5


Rose v. Rose, 117 S.W. 3d 84, 87 (Tex. App.--Waco 2003, no pet.) . . . . . . . . . . . . . . 3


TAC Americas, Inc. v. Boothe, 94 S.W. 3d 315, 318 (Tex. App.--Austin 2002, no pet.)
.................................................................... 3


Thomson v. Findlater Hardware Co., 156 S.W. 301, 303 (Tex. App. 1913). . . . . . . . 5


Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 4


Texas Rules of Civil Procedure


Tex. R. Civ. P. 205. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6




                                                              iv



Exhibit R                                                                                                      App. 304
                                    INTRODUCTION

       Relators MOSSER LAW PLLC and James C. Mosser, submit this petition for

writ of mandamus AND prohibition complaining of the order(s) of the Honorable Sheryl

Day McFarlin, Associate Judge of the 160th District Court, Dallas County Texas. For

clarity, relators are referred to as Mosser, or Relator. Respondent, the Honorable Sheryl

Day McFarlin, is referred to by Honorable Sheryl Day McFarlin or Respondent; and the

Real Party in Interest Jones and Mauldin Real Estate Partnership, LT D., is referred to

as Jones.

       The, underlying lawsuit is Jones and Mauldin Real Estate Partnership, LT D. v.

Peter Zuccarelli, Antoinette Zuccarelli, Vince Mioli, Mary Frances Mioli, Tom Tortorice,

and Marti Tortorice; Cause No. DC12-03140, in the 160 th District Court, Dallas County

Texas. The Captioned lawsuit.

       Respondent issued an order directing Mosser, a non party to produce on or

before July 5, 2013, at 5 p.m.; “... all documents, including any electronically stored

documents, that any defendant has delivered to Mosser in connection with this case;

and all medical excuses that have been delivered to Mosser relating to the health of

any defendant in this case.”

       The order was allegedly based “Plaintiff's Motion for Enforcement of Discovery

Order by Contempt and for Sanctions” filed on behalf of JONES AND MAULDIN REAL

ESTATE PARTNERSHIP LTD. Subsequently Respondent issued an order based on

hearing on the discovery motion the Mosser did not participate in, was not a party in and



                                             v



Exhibit R                                                                       App. 305
was not permitted to attend.

      Mosser believes that the orders are void ab initio, because Relator is not a party

to the underlying suit and the claim is not based on a discovery matter or subpoena

directed at or served on Mosser, and that the Respondent lacked authority to enter the

order at Tab 1, as it relates to Mosser and that Respondent abused its discretion.




                                           vi



Exhibit R                                                                     App. 306
                            STATEMENT OF THE CASE

Trial Court Disposition

                          The Plaintiff’s attorney filed Plaintiff's Motion for Enforcement

                          of Discovery Order by Contempt and for Sanctions Appendix

                          Tab 4. The underlying proceeding relates to a void order

                          titled ORDER RE JUNE 28, 2013 HEARING. Appendix Tab

                          1. The Hon. Sheryl McFarlin, ordered “... Mosser Law PLLC

                          and Mr. James C Mosser to ... ” See Appendix Tab 1.

                          Subsequently The Hon. Sheryl Day McFarlin, ordered ... “

                          Mosser Law PLLC and James C. Mosser ... deliver to this

                          Court ... (A) all documents, including any electronically

                          stored documents, that any defendant has delivered to

                          Mosser in connection with this case; and (B) all medical

                          excuses that have been delivered to Mosser relating to the

                          health of any defendant in this case.” See Appendix Tab 1.

                          This is the order complained of. Mosser did not appear at the

                          subject hearing as he had been discharged by order of the

                          court See Appendix Tab 2.




                                          vii



Exhibit R                                                                      App. 307
                           STATEMENT OF JURISDICTION

This court has jurisdiction over this petition for writ of mandamus under Section

22.221(b) of the Texas Government Code.

                                 ISSUES PRESENTED

Issue Number One: The 160th District Court does not have personal jurisdiction over

MOSSER LAW PLLC and or James C. Mosser, or subject matter jurisdiction

related to the client file. The ORDER RE JUNE 28, 2013 HEARING, related to

MOSSER LAW PLLC and or James C. Mosser, is void ab initio.




                                           viii



Exhibit R                                                                      App. 308
                                 STATEMENT OF FACTS

       Relator MOSSER LAW PLLC, is a law firm in Dallas Texas. Relator James C.

Mosser is a lawyer in the Relator law firm. The Respondent is the Hon. Sheryl McFarlin.

RESPONDENT, the Associate Judge sitting for the elected judge in the 160th District

Court, Dallas County Texas. The underlying proceeding relates to a void order titled

ORDER RE JUNE 28, 2013 HEARING. Appendix Tab 1. JONES AND MAULDIN REAL

ESTATE PARTNERSHIP, LTD., are the plaintiff’s in the Captioned lawsuit. The

Defendants PETER ZUCCARELLI, ANTOINETTE ZUCCARELLI, VINCE MIOLI, MARY

FRANCES MIOLI, TOM TORTORICE, and MARTI TORTORICE, are the named

defendants in the Captioned lawsuit, Jones and Mauldin Real Estate Partnership, LT D.

v. Peter Zuccarelli, Antoinette Zuccarelli, Vince Mioli, Mary Frances Mioli, Tom

Tortorice, and Marti Tortorice; Cause No. DC12-03140, in the 160 th District Court,

Dallas County Texas. The Captioned lawsuit.

       Therein the Respondent ordered “... that James C.

Mosser, Nicholas D. Mosser and Mosser Law PLLC, have fulfilled their duties to the

court and to Defendants.” See Appendix Tab 2.

       After discharging Mosser Respondent, without Mosser present and excluding

Mosser for the subsequent hearing, the Respondent ordered: ... “On or before Friday,

July 5, 2013 at 5:00 PM Mosser Law PLLC and Mr. James C Mosser (together

"Mosser") shall deliver to this Court ... (A) all documents, including any electronically

stored documents, that any defendant has delivered to Mosser in connection with

this case; and (B) all medical excuses that have been delivered to Mosser relating to the



                                              1



Exhibit R                                                                            App. 309
health of any defendant in this case.” See Appendix Tab 1.

       Relator is not a party to the Captioned lawsuit. Relator has not been served with

Citation as a Defendant in the Captioned lawsuit and Relator has not been served with

a petition naming Relator a Defendant in the Captioned lawsuit and Relator has not

been served a subpoena naming Relator. Defendant Peter Zuccarelli owes Mosser Law

PLLC and James C Mosser money from the prior representation. Mosser Law PLLC

and James C Mosser decline to release Defendants PETER ZUCCARELLI,

ANTOINETTE ZUCCARELLI, VINCE MIOLI, MARY FRANCES MIOLI, TOM

TORTORICE, and MARTI TORTORICE’s file to insure and maintain the rights of its

possessory lien.

       James C. Mosser was a lawyer representing Defendants PETER ZUCCARELLI,

ANTOINETTE ZUCCARELLI, VINCE MIOLI, MARY FRANCES MIOLI, TOM

TORTORICE, and MARTI TORTORICE in Cause No. DC12-03140. On 28 June 2013,

the Hon. Sheryl McFarlin signed the ORDER GRANTING MOSSER LAW PLLC,

JAMES C. MOSSER, AND NICHOLAS D. MOSSER’S MOTION TO WITHDRAW AS

COUNSEL. Appendix Tab 2.

       Subsequently, after Mosser had been discharged and after the court stated that

“[the] have fulfilled their duties to the court and to Defendants”, (Tab 2), the court held

another hearing and entered the offending order as it relates to Mosser. See Tab 1.

                            ARGUMENT AND AUTHORITIES

  The 160TH District Court does not have personal jurisdiction over MOSSER LAW
                           PLLC and or James C Mosser.

       It is undisputed that Mosser has not been served with citation or a petition


                                              2



Exhibit R                                                                         App. 310
naming it a defendant in this case. The order at Tab 1, as it relates to Mosser is void,

therefore, Mosser, need not show it does not have an adequate appellate remedy, and

mandamus relief is appropriate. In re Sw. Bell Tel. Co., 35 S.W.3d at 605. See also In

re Mosser Mallers PLLC 2008 WL 963170, 2 (Tex.App.-Dallas)

(Tex.App.-Dallas,2008). The service requirement affords a means for the court to

acquire jurisdiction over the party to be served. City of Tyler v. Beck, 196 S.W.3d 784,

787 (Tex. 2006). It is a fundamental rule of law in Texas that a plaintiff must properly

invoke the jurisdiction of a trial court by valid service of citation on a defendant.

Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985). Gray v. PHI

Resources, Ltd., 710 S.W.2d 566, 567 (Tex. 1986). See Omni Capital Int'l v. Rudolf

Wolff & Co., 484 U.S. 97, 104, 108 S. Ct. 404, 98 L. Ed. 2d 415 (1987) (noting that

absent consent, "[b]efore a federal court may exercise personal jurisdiction over a

defendant, the procedural requirement of service of summons must be satisfied");

Bolden v. Greenpoint Mortgage Funding, Inc., No. 3:04-CV-0379-P, 2004 U.S. Dist.

LEXIS 20508, at *14 (N.D. Tex., Oct. 13, 2004) ("The chief purpose of service of

process is to provide 'notice of the pendency of a legal action . . . .'") (citation omitted);

Rose v. Rose, 117 S.W. 3d 84, 87 (Tex. App.--Waco 2003, no pet.) ("Without actual

service on a defendant or an effective substitute for service, a trial court generally lacks

the power to render judgment against the defendant. . . . The purpose of service of

citation is to ensure that the defendant has notice of the suit."); TAC Americas, Inc. v.

Boothe, 94 S.W. 3d 315, 318 (Tex. App.--Austin 2002, no pet.) ("Generally, the purpose

of citation is to give the court jurisdiction over the parties and to provide notice to the

defendant . . . ."). The Texas Supreme Court has explained that even "[a]ctual notice to

                                               3



Exhibit R                                                                           App. 311
a defendant," after defective substituted service, is "not sufficient to convey upon the

court jurisdiction to render default judgment against him." Wilson v. Dunn, 800 S.W.2d

833, 836 (Tex. 1990)."Without notice via the required service of citation or a waiver

thereof, nothing short of a general appearance will confer upon the trial court jurisdiction

over a person." Cotton v. Cotton, 57 S.W.3d 506, 511 (Tex. App.--Waco 2001, no

pet.).

         Since Mosser Law PLLC or James C. Mosser is not a party to the underlying

litigation and has never been served with citation or petition and has not waived service

the court does not have personal jurisdiction over either, and the court does not have

subject matter jurisdiction over their files. Primrose Operating Co., Inc. v. Jones, 102

S.W.3d 188, 193 (Tex.App.--Amarillo 2003, pet. denied). “If a trial court enters a

judgment before it acquires jurisdiction of the parties, the judgment is void.” In re

Guardianship of B.A.G., 794 S.W.2d 510, 511-12 (Tex. App.--Corpus Christi 1990, no

writ) (citing Browning v. Placke, 698 S.W.2d 362, 363, 29 Tex. Sup. Ct. J. 33 (Tex.

1985)), “However, a void judgment is entirely null within itself and cannot be ratified or

confirmed.” Del Peterson, D.D. Associates, Inc. v. Stromberger 2005 WL

2363059,(Tex.App.-Dallas,2005). In re Mask, 198 S.W.3d 231, 234 (Tex. App. 2006)(A

judgment or order is void when it is apparent that the court rendering it lacked

jurisdiction of either the parties or the subject matter of the lawsuit.)(citing Perry v.

Ponder, 604 S.W.2d 306, 322 (Tex.Civ.App.-Dallas 1980, no writ). See also Dinyes v.

Dinyes, 2001 Tex. App. LEXIS 2303 (Tex. App. 2001). In re Ashton 266 S.W.3d 602

(Tex.App.–Dallas,2008).



                                               4



Exhibit R                                                                           App. 312
   The ORDER RE JUNE 28, 2013 HEARING, relating to MOSSER LAW PLLC or
                   James C. Mosser is void ab initio.

       The complained of order, ORDER RE JUNE 28, 2013 HEARING, relating to

MOSSER LAW PLLC or James C. Mosser, is void ab initio. Any portion of a trial

court's ruling rendered in the absence of subject-matter jurisdiction is void. See Hong

Kong Dev., Inc. v. Nguyen, No. 01-04-00586-CV, 229 S.W .3d 415, 2007 Tex. App.

LEXIS 4494, 2007 WL 1633360, at *13 (Tex. App.--Houston [1st Dist.] June 7, 2007, no

pet. h.) ("An order is void, among other things, if the trial court lacks subject-matter

jurisdiction to render it."). Klein v. Hernandez, 2007 Tex. App. LEXIS 6284 (Tex. App.

2007). "An attorney has a general lien for his professional dues on the papers of his

client in his hands, and upon all moneys in his possession belonging to his client." This

doctrine is affirmed in Casey v. March 1867 WL 4579, 2 (Tex.) (Tex. 1867), Randolph,

Bowen & Co. v. Randolph, 34 Tex. 181, 184-185 (Tex. 1871). That is to say, he

cannot sell said papers under process to foreclose his lien, as may a pledgee or

mortgagee in other cases, but his lien extends only to the right to retain such papers

until his debt is paid. Casey v. March, 30 Tex. 180; 4 Cyc. 1005, and 1023; 3 Am. &

Eng. Ency. Law, pp. 454, 464; Jones on Liens, § 132. Thomson v. Findlater Hardware

Co., 156 S.W. 301, 303 (Tex. App. 1913). An attorney may withhold papers from a

client only if the attorney claims a lien against the papers for amounts due from the

client for professional services. Nolan v. Foreman, 665 F.2d 738, 743 (5 th cir. 1982),

(citing Smith v. State, 490 S.W.2d 902, 910 (Tex. Civ. App. - Corpus Christi 1972, writ

ref'd n.r.e.)); see also Griffith v. Geffen & Jacobsen, P.C., 693 S.W.2d 724, 728 (Tex.

App. - Dallas 1985, no writ). 1988 Tex. AG LEXIS 107 (Tex. AG 1988). Mosser has is


                                              5



Exhibit R                                                                         App. 313
retaining the Defendants’ file because they owe money and Mosser has made demand

on the Defendants for payment. The legal bill for fees and services remains unpaid.

       There is no discovery request in this dispute and there has never been a

discovery request directed to or served on MOSSER LAW PLLC or James C. Mosser as

plaintiffs or defendants in this case. There is no discovery subpoena or request for

production of MOSSER LAW PLLC or James C. Mosser’s files pursuant to Rule 205, or

served on MOSSER LAW PLLC or James C. Mosser as defendants in this case or as

non-parties. See Tex.R. Civ. P. 205.1. In this case, it is undisputed that relator w as not

served with citation, did not waive citation, has not appeared, and is not a party to the

dispute in trial court. “A trial court's ruling that requires production beyond what our

procedural rules permit is an abuse of discretion.” In re Dana Corp., 138 S.W.3d 298,

301 (Tex.2004) (orig. proceeding). In re Mosser Mallers PLLC 2008 WL 963170, 2

(Tex.App.-Dallas) (Tex.App.-Dallas,2008). In re Does 1-10, 242 S.W.3d 805, 819 (Tex.

App.—Texarkana 2007, no pet.)(conditionally granting mandamus relief to overturn a

trial court order, issued ex parte).

                                         PRAYER

For these reasons, MOSSER LAW PLLC and James C. Mosser, Relator, request that

this court issue a Writ of Mandamus ordering Respondent, Hon. Sheryl Day McFarlin, to

vacate or rescind the order compelling MOSSER LAW PLLC or James C. Mosser to

“deliver to this Court ... (A) all documents, including any electronically stored

documents, that any defendant has delivered to Mosser in connection with this case;

and (B) all medical excuses that have been delivered to Mosser relating to the health of


                                              6



Exhibit R                                                                           App. 314
any defendant in this case.” See Tab 2.

Respectfully Submitted, MOSSER LAW PLLC
/s/ James C. Mosser
James C. Mosser
Texas Bar No. 00789784
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
Telephone 972-733-3223
Facsimile 972-267-5072
For Relator

                             CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been
delivered pursuant to Tex. R. App. P. 9.5 to counsel and Relator as indicated below on
July 5, 2013.

Court Facsimile: 214-653-7194
Hon. Cheryl Day McFarlin                                                    Respondent
160th District Court
George L. Allen, Sr. Courts Bldg.
600 Commerce St.
Dallas, Texas 75202

Paul A. Hoffman, Esq.                               Attorney for Real Parties in Interest
5400 LBJ Freeway, Ste. 1200
Dallas, Texas 75240
Facsimile: 972-380-2620

Jones and Mauldin                                                Real Parties in Interest
Real Estate Partnership, LTD.

/s/ James C. Mosser
James C. Mosser




                                           7



Exhibit R                                                                     App. 315
                                           VERIFICATION

BEFORE ME, the undersigned notary public, on this day personally appeared James C.

Mosser, relator's attorney, who being duly sworn by me deposed and said:

1.      I am counsel for Mosser Law PLLC and James C. Mosser, relator in this case. I

        am over 21 years of age and am competent to make this affidavit. I have read the

        petition for writ of mandamus to which this verification is attached, which is filed

        on behalf of Mosser Law PLLC and James C. Mosser and every factual

        statement contained in the petition is within my personal knowledge and is true

        and correct.

2.      The documents contained in the Appendix attached hereto and incorporated in

        haec verba, are authenticate true and correct copies of the orders and motions

        filed in the trial court and on information and on information and belief there was

        a reporter's record of trial court hearing. I have no personal knowledge of the

        court reporters identity, and that the motions, and orders contained in the

        appendix are true and correct copies.

3.                ffiant sayeth not.




     orn to and subscribed before me by James C. Mosser on July 5, 2013.




My commission expires:      1-1... '5-    l(f>


                         JENNIFER MCOlE SALINAS
                          fKY COMMISSION EXPIRES
                               JanuaJy 25,2016     8


Exhibit R                                                                         App. 316
                             APPENDIX

ORDER RE JUNE 28, 2013 HEARING                               Tab 1

ORDER GRANTING MOSSER LAW PLLC, JAMES C. MOSSER, AND NICHOLAS D.

MOSSER’S MOTION TO WITHDRAW AS COUNSEL                       Tab 2




                                 9



Exhibit R                                                App. 317
                                                                                                                ''t'

                                                                 . Date:      ~      ~
                                                                                         · rl          J..-:<
                                                                                                      't~

                                                                  Time:      3    ~      Ji?.   P!Vl
                                                                  Initials:~ Sct/I.!S'K
                                                                           '-\~'\:              ·IJ 001
                                      No. DC12-03140

       JONES AND MAULDIN REAL                   §    IN THE 160TII JUDICIAL
       ESTATE PARTNERSHIP, LTD.                 §
                                                §
       V.                                       §
                                                §    DISTRICT COURT OF
       PETER ZUCCARELU,                         §
       ANTOINETTE ZUCCARELU, VINCE              §
       MIOLI, MARY FRANCES MIOU,                §
       TOM TORTORICE, MARTI TORTORICE,          §    DALLAS COUNTY, TEXAS


                              ORDER RE JUNE 28, 2013 HEARING

            ON THIS DAY Plaintiff's Motion for Enforcement of Discovery Order by
     Contempt and for Sanctions filed on behalf of JONES AND MAULDIN REAL
     EsTATE PARTNERSHIP LTD. ~ before the court for consideration.
     JMR appeared by counsel AND PETER ZUCCARELU (Zuccarelli) appeared in
     person, his legal counsel having previously been given permission to
     withdraw. All parties announced ready, and the Court heard testimony from
     two witnesses, as well as arguments of counsel. Based upon the matters
     presented the Court fmds that the hearing should be recessed until certain
     matters ordered below have been addressed.
            IT IS THEREFORE ORDERED that the following occur.:
            1. On or before Friday, July 5, 2013 at 5:00PM Mosser Law PLLC and
               Mr. James C Mosser (together "Mosser") shall deliver to this Court at
~-.~room Lg C..                 in the George LAllen, Sr. Courts Building, 600
               Commerce St., Dallas, TX 75202 the following:
                  (A) all documents, including any electronically stored documents,
                     that any defendant has delivered to Mosser in connection with
                     this case; and
                  (B) all medical excuses that have been delivered to Mosser
                     relating to the health of any defendant in this case.
            2. At 3:00 o'clock P. M. on Monday, July 1, 2013, Zuccarelli shall open
               the door to the garage at his house located at ~§~~'a~m@l in
     Order Re June 28, 2013 Hearing                                                               I



Exhibit R                                                                        Appendix
                                                                                   App. Tab
                                                                                          3181
   •
                                                                .j-wo
                                                                  v
                 Plano, Texas, and at that time allow Plaintiffs representatives to see,                        ,
                examine and photograph the contents. 'T..- n.o e..V £.V\-T ~hA..\ \ P\~ 1'\T; ~!; £.
                ·re.pce.£.-e.nt-c.:'tiv~ "ri\l-1~·· 'f\lY'<l":')h 1"ho c..D..,t-e.I"TS o-l!-1J.,..... <3~e.,3@..
             3. Immediately thereafter, Zuccarelli snail go directly to 2104 Hutton
                 ~   -                                                                                   ~'tt...o..
                ~~§;, Carrollton, TX, where Zuccarelli shall open the door and allow vi~;+ is
                                                                      t ;V'I>( +e.D.
                 Plaintiffs representatives free access to said premises for the
                ~ll'f~, examining and photographing everything within -\-<> '?> O
                 said premises except the contents of closed desk drawers.
             4. On or before 5:00PM on Friday, Ju!y!jg, 2013, Zuccarelli shall
                provide all records from Wells Fargo bank account number
                5~~;ji~~ held in the name of~~~ijlm!L~/1111.
                Inc. for the periods between March 1, 2012 andJuly31, 2012 and
                between March 1, 2013 and the present date to counsel for plaintifi,
                Bruce Manning, at his office, 4 709 West Lovers Ln., Suite 100,
                Dallas, TX 75209.
             5. Plaintiff shall be authorized to issue a subpoena for the fmancial
                records held by any defendant from Compass Bank, provided such
                subpoena is limited in time to the period between JanUary I, 2012
                S~£ll"'
                ""'1:1.'!\!!!l!ll"!'!~~   28 ' 2013.
       SIGNED   on.¥                         ~<&       '2013.



                                                                JUDGE PRE




       Order Re Jlllle 28, 2013 Hearing                                                              2



Exhibit R                                                                                Appendix
                                                                                           App. Tab
                                                                                                  3191
                                   CAUSE NO. DC12-03140

  JONES AND MAULDIN REAL                         §            IN THE DISTRICT COURT
  ESTATE PARTNERSHIP, LTD.,                      §
  Plaintiff,                                     §
                                                 §
  v.                                             §     THE 160TH JUDICIAL DISTRICT
                                                 §
  PETER ZUCCARELLI,                              §
  ANTOINETTE ZUCCARELLI, VINCE                   §
  MIOLI, MARY FRANCES MIOLI,                     §
  TOM TORTORICE, MARTI TORTORICE,                §
  Defendants.                       §      OF DALLAS COUNTY, TEXAS
                    ORDER ON MOTION TO WITHDRAW

  After considering James C. Mosser, Nicholas D. Mosser, and Mosser Law PLLC's
  motion to withdraw, the Court

  GRANTS the motion and orders James C. Mosser, Nicholas D. Mosser, and Mosser
  Law PLLC withdrawn as attorney for Defendants, Peter Zuccarelli, Antoinette Zuccarelli,
  Vince Mioli, Mary Frances Mioli, Tom Tortorice, and Marti Tortorice., and that James C.
  Mosser, Nicholas D. Mosser and Mosser Law PLLC, have fulfilled their duties to the
  court and to Defendants.

  SIGNED on    iM.       q   :;)   ~   • 2013.




Exhibit R                                                                   Appendix
                                                                              App. Tab
                                                                                     3202
                                      RECORD

There was a record of testimony adduced at this hearing related to the complained of
order, Mosser Law PLLC and James C. Mosser, were not in attendance and in fact
excluded by court order from the hearing. Mosser Law PLLC and James C. Mosser do
not have knowledge of the identity of the reporter.




                                         10



Exhibit R                                                                  App. 321
In re Mosser Law PLLC, Not Reported in S.W.3d (2013)




                                                               Paul A. Hoffman, Paul A. Hoffman, P.C., Dallas, TX, for
                 2013 WL 3718076                               appellees.
   Only the Westlaw citation is currently available.
                                                               Before Justices O'NEILL, LANG–MIERS, and EVANS.
         SEE TX R RAP RULE 47.2 FOR
   DESIGNATION AND SIGNING OF OPINIONS.                        Opinion

            MEMORANDUM OPINION
             Court of Appeals of Texas,                                       MEMORANDUM OPINION
                       Dallas.
                                                               Opinion by Justice LANG–MIERS.
              In re MOSSER LAW PLLC,
                                                                *1 Relators contend the associate judge erred in ordering
            and James C. Mosser, Relators.
                                                               them to deliver certain documents to the trial court. The
                                                               facts and issues are well known to the parties, so we
      No. 05–13–00906–CV.        |   July 12, 2013.
                                                               need not recount them herein. Based on the record before
On Appeal from the 160th Judicial District Court, Dallas       us, we conclude relators have not shown they are entitled
County, Texas, Trial Court Cause No. DC–12–03140. Sheryl       to the relief requested. See TEX.R.APP. P . 52.8(a);
Day McFarlin, Judge.                                           Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.1992)
                                                               (orig.proceeding). Accordingly, we DENY relators' petition
Attorneys and Law Firms                                        for writ of mandamus.

James C. Mosser, Mosser Law, PLLC, Dallas, TX, for
appellants.

End of Document                                            © 2014 Thomson Reuters. No claim to original U.S. Government Works.




    Exhibit ©R2014 Thomson Reuters. No claim to original U.S. Government Works.                            App. 322         1
HAWASHMEADE
HAW ASH MEADE GASTON NEESE & CICACK LLP
                                                                                         Samuel B. Haren
                                                                                      sharen@hmgllp.com
                                                                                     713-658-9001 (phone)
                                                                                        713-658-9011 (fax)



                                           February 20, 2015

Via Facsimile:
(972) 267-5072
Mr. Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248

       Re:     Cause No. 2014-10896, Los Cucos Mexican Cafe VIII, Inc. et al. v. 8650 Frisco, LLC et
               al. in the 133rd Judicial District Court of Harris County, Texas

Dear Mr. Mosser:

        Plaintiffs served certain discovery requests on Defendant 8650 Frisco, LLC on April 14, 2014.
On June 23, 2014, the Court overruled your objections to requests for production 1, 2, 3, 4, 5, 7, and 8
and ordered you to produce all responsive documents. On July 28, the Court again ovenuled your
objections and again ordered you to produce all responsive documents. You were required to produce
the documents "at Plaintiffs' attorneys' office by Aug[ust] 1, 2014 at 5:00 p.m." We still have not
received these documents.

       If we have not received these documents by 5:00p.m. today, we will move to compel and seek
sanctions. If you need assistance serving the documents electronically, we would be happy to help.




                         2118 Smith Street I Houston, Texas 77002
                 Main Phone: (713) 658-9001 I Main Facsimile: (713) 658-9011
    Exhibit R
                                          Exhibit 25                                    App. 323
                                      www.hmgll p.com
MOSSER LAW PLLC
       17110 DALLAS PARKWAY, SUITE 290 • DALLAS, TEXAS 75248 • 972-733-3223 • FAX: 972-267-5072
                                            MOSSER LAW .COM


                                        February 20, 2015

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


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

Dear Mr. Stephens:

We are in receipt of Mr. Harem’s letter regarding some unspecified production.
However it seems most of that discovery would be rendered moot by your nonsuiting all
claims except for the Rule 11 agreement.

Even if that production were not moot at this time, we have complied with all orders of
this court and would need more specifics as to what you are referring. This information
would be necessary to investigate what documents you contend you did not receive
and where that error may lie.


Respectfully, MOSSER LAW PLLC



/s/ Nicholas D. Mosser
Nicholas D. Mosser

                               CERTIFICATE OF SERVICE
I certify that on February 20, 2015 , a true and correct copy of this document was
served to the following pursuant to Texas Rules of Civil Procedure 21 & 21(a).

Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460



Exhibit R
                                        Exhibit 26                                        App. 324
kstephens@stephensdominitz.com

/s/ Nicholas D. Mosser
By: Nicholas D. Mosser




Exhibit R                        App. 325
                                     Cause No. 2014-10896

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

 v.                                                         Harris County, Texas

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


                                       Notice of Hearing

       Please take notice that the Court will conduct an oral hearing on Defendants’ Second

Motion to Enforce the Court’s Order and for Sanctions on March 30, 2015, at 2:00 p.m. in the

133rd Judicial District Court of Harris County, Texas.




Exhibit R                                                                              App. 326
                Respectfully submitted,


                Stephens & Domnitz, PLLC

                /s/ Kelly D. Stephens
                Kelly D. Stephens
                State Bar No. 19158300
                P.O. Box 79734
                2118 Smith Street
                Houston, Texas 77279-9734
                281-394-3287 (phone)
                832-476-5460 (fax)
                kstephens@stephensdomnitz.com

                Hawash Meade Gaston
                Neese & Cicack LLP

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

                Cox Smith Matthews Incorporated

                David Kinder
                State Bar No. 11432550
                112 East Pecan Street, Suite 1800
                San Antonio, Texas 78205
                210-554-4400 (phone)
                210-226-8395 (fax)
                dkinder@coxsmith.com

                Attorneys for Plaintiffs




            2
Exhibit R                                  App. 327
                                   Certificate of Service

        A true and correct copy of the foregoing has been served on all counsel of record via
electronic service on February 20, 2015.

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

                                                            /s/ Samuel B. Haren
                                                            Samuel B. Haren




                                             3
Exhibit R                                                                         App. 328
                                                                                             3/3/2015 11:12:46 AM
                                                                        Chris Daniel - District Clerk Harris County
                                                                                            Envelope No. 4347098
                                                                                          By: JIMMY RODRIGUEZ
                                                                                      Filed: 3/3/2015 11:12:46 AM

                               CAUSE NO. 2014-10896

                                            §   IN THE DISTRICT COURT OF
LOS CUCOS MEXICAN CAFÉ VIII,
                                            §
INC., LOS CUCOS MEXICAN CAFÉ IV,
                                            §
INC., MANUEL CABRERA, and
                                            §
SERGIO CABRERA
                                            §
PLAINTIFFS,                                 §
                                            §
V.                                          §   HARRIS COUNTY, TEXAS
                                            §
                                            §
8650 FRISCO, LLC d/b/a ESTILO               §
GAUCHO BRAZILIAN STEAKHOUSE,                §
MANDONA, LLC, GALOVELHO, LLC,               §
BAHTCHE, LLC, CLAUDIO NUNES                 §
and DAVID JEIEL RODRIGUES                   §
                                            §
DEFENDANTS.                                 §   133rd JUDICIAL DISTRICT

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ SECOND MOTION TO ENFORCE THE
  COURT’S ORDER AND FOR SANCTIONS AND DEFENDANTS’ MOTION FOR
                          SANCTIONS

Defendants, 8650 Frisco, LLC, d/b/a Estilo Gaucho Brazilian Steakhouse, Mandona, LLC,

Galovelho, LLC, Batche, LLC, Claudio Nunes, and David Jeiel Rodrigues, files this, their

response to Plaintiffs’ Second Motion to Enforce the Court’s Order and for Sanction and

Defendants’ Motion for Sanctions.

                                      RESPONSE

1.    In an effort to reduce the length of this response, Defendants will not address the

      majority of Plaintiffs’ 218 page motion, instead Defendants will focus on the alleged

      contempt Plaintiffs have falsified. Defendants deny the majority of the factual

      contentions contained within Plaintiffs motion, however, the false statements

      concerning Plaintiffs allegations of contempt are sufficient to warrant severe

      sanctions alone.




Exhibit S                                                                          App. 3291
2.   On August 1, 2015 Kelly Stephens turned his fax machine off, after the court

     ordered Defendants produce documents before 5:00pm. See Plaintiffs’ Second

     Motion to Enforce the Court’s Order and for Sanctions, Exhibit 18.

3.   Shortly thereafter, Plaintiffs sent a condescending letter acknowledging the Attorney

     in Charge’s disconnected fax machine, and stating “If you are unsure how to use an

     FTP link or Dropbox, we would be happy to provide assistance.” Plaintiffs’ Second

     Motion to Enforce the Court’s Order and for Sanctions, Exhibit 19.

4.   Despite this claim of superior knowledge regarding “FTP link[s] or Dropbox,”

     Plaintiffs contend they were never served with the now moot document production.

     Plaintiffs’ Second Motion to Enforce the Court’s Order and for Sanctions, Exhibit 25.

5.   After Plaintiffs filed their Second Motion to Enforce the Court’s Order and for

     Sanctions, Defendants provided Plaintiffs the exact date and time the documents

     were served and requested Plaintiffs withdraw their harassing motion. Plaintiffs

     declined this offer. Exhibit A.

6.   Plaintiffs currently have at least seven lawyers working on their case spread across

     three law firms. None of these lawyers, including the attorney in charge, Kelly

     Stephens, checked his eservice account for the documents. Plaintiffs’ counsel would

     prefer to churn their file, lie to the court, and otherwise demean the practice of law

     through incorrect statements of fact, law, and holdings of the courts.

7.   As Defendants’ counsel has previously told Plaintiffs’ Counsel, the documents were

     served on the Attorney in Charge on August 1, 2014 at 4:46pm. Exhibit B. Plaintiffs

     counsel ignored this service for the “200 days” until they filed their baseless motion,

     and even now continue ignore the fact that they were served.




Exhibit S                                                                       App. 3302
8.    Texas Civil Practice and Remedies Chapter 9 and Texas Rule of Civil Procedure 13

      controls when an attorney lies to the court on documents. Texas Civil Practice and

      Remedies Code Chapter 9 states, “The signing of a pleading as required by the

      Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the

      signatory's best knowledge, information, and belief, formed after reasonable inquiry,

      the pleading is not: (1) groundless and brought in bad faith; (2) groundless and

      brought for the purpose of harassment;” Tex. Civ. Prac. & Rem. Code Ann. § 9.011

      (West).

9.    Similarly, Rule 13 states, “The signatures of attorneys or parties constitute a

      certificate by them that they have read the pleading, motion, or other paper; that to

      the best of their knowledge, information, and belief formed after reasonable inquiry

      the instrument is not groundless and brought in bad faith or groundless and brought

      for the purpose of harassment.” Tex. R. Civ. P. 13.

10.   Plaintiffs current motion is patently groundless and brought in bad faith and/or for

      the purpose of harassment. The attorney in charge, Kelly Stephens, was served all

      documents the Court required to be served. Exhibit B. Despite actual service of the

      documents, Plaintiffs and their seven lawyers bring the present libelous motion for

      no purpose other than to churn their own file and harass Defendants.

11.   Plaintiffs’ motion requests $500 per day starting August 1, 2014 until “Defendants

      finally produce [the documents].” Plaintiffs’ Second Motion to Enforce the Court’s

      Order and for Sanctions, pg 6. This amounts to a $100,000 fine because Plaintiffs

      wish to lie to the court.

12.   Defendants believe that it is more egregious for Plaintiffs to falsify information to the




Exhibit S                                                                          App. 3313
       Court where they intentionally attack another lawyer. This conduct is not unique to

       this situation.

13.    Plaintiffs falsified their notice of hearing on the Motion for Summary Judgment. The

       Clerk of the Court informed Defendants that she did not give Plaintiffs either a

       hearing or submission on March 2, 2015. She went on to state that she was not sure

       why they set it for hearing on March 2, 2015, but she never gave Plaintiffs that date.

       However, rather than simply identifying the error, Plaintiffs in a clear effort to churn

       their file refuse to reset the improper hearing, and have filed a 12 page response in

       their effort to keep a hearing/submission date on March 2, 2015– that NEVER

       EXISTED.

                                        Conclusion

Plaintiffs’ counsel has lied to the court and knowingly brought a motion in bad faith and for

the purpose of harassment. The Court should impose a sanction upon Plaintiffs counsel

for their egregious and false filing equal to their obscene request on Defendants, $100,000.

Plaintiffs Counsel should be admonished that between the three law firms and at least

seven lawyers listed on the pleadings one should realize that this conduct should not be

tolerated.

                                          PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants request that the Court, after notice

and hearing, deny Plaintiffs’ Motion, and impose sanctions upon Kelly Stephens for signing

and filing false documents with the court.



Respectfully submitted, MOSSER         LAW PLLC



Exhibit S                                                                          App. 3324
/s/ Nicholas D. Mosser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248
Telephone 972-733-3223
Facsimile 972-267-5072
courtdocuments@mosserlaw.com
Lawyers for Defendants

                              CERTIFICATE OF SERVICE
      I certify that on March 3, 2015, a true and correct copy of this document was
served pursuant to Tex. R. Civ. P. 21 and 21a, to the following counsel/parties:

Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460



Nicholas D. Mosser
By: Nicholas D. Mosser




Exhibit S                                                                    App. 3335
MOSSER LAW PLLC
       17110 DALLAS PARKWAY, SUITE 290 • DALLAS, TEXAS 75248 • 972-733-3223 • FAX: 972-267-5072
                                            MOSSER LAW .COM


                                        February 21, 2015

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

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

Dear Mr. Stephens:

Please withdraw your baseless and harassing motion you filed on Friday February 20,
2015 no later than 12:00pm Monday February 23, 2015. The documents you contend
were never served on you, were served on Plaintiffs attorney in charge at 4:46:18 PM
on August 1, 2014.

Respectfully, MOSSER LAW PLLC


/s/ Nicholas D. Mosser
Nicholas D. Mosser

                                 CERTIFICATE OF SERVICE

I certify that on February 21, 2015, a true and correct copy of this document was served
to the following pursuant to Texas Rules of Civil Procedure 21 & 21(a).

Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460

/s/ Nicholas D. Mosser
By: Nicholas D. Mosser




Exhibit S                                      Exhibit A
                                                                                          App. 3346
Envelope Details                                             https://efile.txcourts.gov/EnvelopeDetails.aspx?envelopeguid=49b...



         Print this page




         Case Information
         Location                      Harris County - 133rd Civil District Court
         Date Filed                    08/01/2014 04:46:18 PM
         Case Number                   201410896
                                       LOS CUCOS MEXICAN CAFE VIII, INC. v 8650 FRISCO, LLC DBA
         Case Description
                                       ESTILO GAUCHO BRAZILIAN STEAK
         Assigned to Judge
         Attorney                      Nicholas Mosser
         Firm Name                     Mosser Law PLLC Lawyers
         Filed By                      Nicholas Mosser
         Filer Type                    Attorney
         Fees
         Convenience Fee               $0.00
         Total Court Case Fees         $0.00
         Total Court Filing Fees       $0.00
         Total Court Service Fees      $0.00
         Total Filing & Service Fees   $0.00
         Total Service Tax Fees        $0.00
         Total Provider Service Fees   $0.00
         Total Provider Tax Fees       $0.00
         Grand Total                   $0.00
         Payment
         Account Name                  Mosser Law 1
         Transaction Amount            $0.00
         Transaction Response
         Transaction ID                3362193
         Order #                       002029603-0

         Service Only
         Filing Type                                      Serve
         Filing Code                                      Service Only
         Filing Description                               Supplemental
         Reference Number
         Comments
         Status                                           Served
         Fees

               Exhibit S                              Exhibit B
                                                                                                  App. 3357
1 of 2                                                                                                      2/20/2015 6:52 PM
Envelope Details                                           https://efile.txcourts.gov/EnvelopeDetails.aspx?envelopeguid=49b...


         Court Fee                                      $0.00
         Service Fee                                    $0.00
         Documents
         Service Document        will produce.pdf                  [Original]          [Transmitted]


         eService Details
                                                                                                 Date/Time
         Name/Email                     Firm               Service Type Status Served
                                                                                                 Opened
         Kelly D. Stephens             Stephens &
                                                    EServe                  Sent      Yes        Not Opened
         kstephens@stephensdomnitz.com Domnitz PLLC
         James C Mosser                Mosser Law                                                08/04/2014
                                                    EServe                  Sent      Yes
         CourtDocuments@MosserLaw.com PLLC Lawyers                                               11:33:33 AM




               Exhibit S                            Exhibit B
                                                                                                App. 3368
2 of 2                                                                                                    2/20/2015 6:52 PM
                                                                                              3/23/2015 9:02:57 AM
                                                                         Chris Daniel - District Clerk Harris County
                                                                                             Envelope No. 4592937
                                                                                               By: EVELYN PALMER
                                                                                       Filed: 3/23/2015 9:02:57 AM

                                CAUSE NO. 2014-10896

                                            §    IN THE DISTRICT COURT OF
LOS CUCOS MEXICAN CAFÉ VIII,
                                            §
INC., LOS CUCOS MEXICAN CAFÉ IV,
                                            §
INC., MANUEL CABRERA, and
                                            §
SERGIO CABRERA
                                            §
PLAINTIFFS,                                 §
                                            §
V.                                          §    HARRIS COUNTY, TEXAS
                                            §
                                            §
8650 FRISCO, LLC d/b/a ESTILO               §
GAUCHO BRAZILIAN STEAKHOUSE,                §
MANDONA, LLC, GALOVELHO, LLC,               §
BAHTCHE, LLC, CLAUDIO NUNES                 §
and DAVID JEIEL RODRIGUES                   §
                                            §
DEFENDANTS.                                 §    133rd JUDICIAL DISTRICT

SUPPLEMENT TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ SECOND MOTION
TO ENFORCE THE COURT’S ORDER AND FOR SANCTIONS AND DEFENDANTS’
                     MOTION FOR SANCTIONS

Defendants, 8650 Frisco, LLC, d/b/a Estilo Gaucho Brazilian Steakhouse, Mandona, LLC,

Galovelho, LLC, Batche, LLC, Claudio Nunes, and David Jeiel Rodrigues, files this, their

supplemental response to Plaintiffs’ Second Motion to Enforce the Court’s Order and for

Sanction and Defendants’ Motion for Sanctions.

                                      RESPONSE

1.    Defendants tender Exhibit C to further illustrate that Plaintiffs’ counsel was aware

      of the service prior to filing the sanctions motion, however, chose to ignore the

      document served on him. Furthermore, Plaintiffs’ counsel attempts to argue that

      instantaneous service of a document prior to 5:00 pm was not valid service because

      his email server failed to retrieve the document until later. Exhibit C.

2.    Finally, Despite Plaintiffs indication that they would take their sanctions motion




Exhibit T                                                                           App. 337
      down, it has yet to be removed from the Court’s docket nor has any filing been

      submitted withdrawing the sanctions motion.



                                        PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants request that the Court, after notice

and hearing, deny Plaintiffs’ Motion, and impose sanctions upon Kelly Stephens for signing

and filing false documents with the court.



Respectfully submitted, MOSSER       LAW PLLC
/s/ Nicholas D. Mosser
James C. Mosser
Texas Bar No. 00789784
Nicholas D. Mosser
Texas Bar No. 24075405
2805 Dallas Parkway, Suite 200
Plano, Texas 75248
Telephone 972-733-3223
Facsimile 972-267-5072
courtdocuments@mosserlaw.com
Lawyers for Defendants

                              CERTIFICATE OF SERVICE
      I certify that on March 23, 2015, a true and correct copy of this document was
served pursuant to Tex. R. Civ. P. 21 and 21a, to the following counsel/parties:

Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460



Nicholas D. Mosser
By: Nicholas D. Mosser




Exhibit T                                                                      App. 338
03/04/2015   11:37                                                                               #0793 P.002 /003




             STEPHENS & DOMNITZ, PLLC
             ATIORNEYS AT LAW OFFICES

             P.O. Box 79734                                               TELEPHONE      281-394-3287
             HOUSTON, TEXAs 77279-9734                                    FACSIMILE      832-476-5460

             March 4, 2015

             Via Facsimile: (972) 267-5072
             Nicholas D. Mosser
             Mosser Law PLLC
             17110 Dallas Pkwy, Ste. 290
             Dallas, TX 75248

             RE:     Cause No. 2014-10896; Los Cucos Mexican Caj(! Vlll eta/, vs. 8650 Frisco, LLC
                     d/b/a Gaucho Brazilian Steakhouse et al, in the 133'd Judicial District Court of
                     Harris County, Texas.

             Dear Mr. Mosser:

                     After having a chance to review your response to the Motion to Compel, I see that
             your position is that submitting docllillcnts for e-scrvice at 4:46 p.m., on August 1, 2014,
             constituted delivery by 5:00p.m. to my offices.

                     I would point out to you that the Court's Order was not about service as set forth
             in Rule 2la, but rather about physical delivery of the documents. Your exhibit shows that
             the doclUllents were not sent to your e-service until 4:46 p.m. My email shows that the
             same were not forwarded to me until5:47 p.m. Even then, it was not the documents that
             were delivered but rather 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 docllillcnts.

                    Further, at this point, I have no way of knowing what documents were being sent
             viae-service as I cannot now download documents from the notice.

                    However, my goal is not to I) split hairs on procedure, nor 2) to unnecessarily
             burden the court, nor 3) to seek to punish you. I simply want the documents we requested
             and which the court previously ordered you to deliver to me.

                   If you will deliver to me the documents requested by 3:00p.m. this Friday, March
             6, 2015, l will withdraw the motion. r further request that the documents be
             supplemented to contain information through the end of 2014.

                    In fairness, I cannot represent to the court that the documents were not sent as you
             have represented. I can say that something was sent, but not what it was. Had I
             recognized this and downloaded the appropriate documents, I would have accepted the

                                                    Page 1 of2



       Exhibit T                                                                                  App. 339
                                                                                                    EXHIBIT C
03/04/2015   11:37                                                                          #0793 P.003 /003




             production as delivered. Because of that, I feel obligated to withdraw the request for
             sanctions.

                     However, I do not have the documents and I require them to go forward. As such,
             if you have not delivered the documents to me by 3:00p.m. this coming Friday, I will
             withdraw the request for sanctions, but continue with the motion to compel.




                                                        Sincerely,

                                                        s/Kelly D. Stephens
                                                        Kelly D Stephens




                                                   Page 2 of2


       Exhibit T                                                                              App. 340
                                                                                                EXHIBIT C
03/04/2015   11:36                                                                                     #0793 P.OOl /003




     STEPHENS & OOMNITZ,                     PllC
     ATIORNEYSATlAW


     P.o_ BOX 79734                                                    TELEPHONE        281-394-3287
     HOUSTON, TEXAS 77279-9734                                         FACSIMILE        713-476-5460




             To:       Nicholas Mosser, The Mosser Law Firm   From:     Kelly D. Stephens

             Fax:      972-267-5072                           Pages:      2   Including cover

                                                              Date:     March 4, 2015

             Re:       Los Cucos v. 8650 Frisco               cc:

                             0 For ReView         0 Please Comment      0 Please Reply      0 Please Recycle


             •Comments:

                      Enclosed: Letter of March 4, 2015.




      Exhibit T                                                                                        App. 341
                                                                                                         EXHIBIT C
                                                                                                       4/1/2015 4:38:11 PM
                                                                                Chris Daniel - District Clerk Harris County
                                                                                                    Envelope No. 4735007
                                                                                                     By: EVELYN PALMER
                                                                                               Filed: 4/1/2015 4:38:11 PM



MOSSER LAW PLLC
       2805 DALLAS PARKWAY, SUITE 222 • PLANO, TEXAS 75093 • 972-733-3223 • FAX: 469-626-1073
                                           MOSSER LAW .COM


                                          April 1, 2015

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


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

Dear Mr. Stephens:

It appears as though you have not paid the bill on your facsimile line, the telephone
company indicates that the line has been disconnected. Similarly, it appears as though
the four or five lawyers at Mr. Meade’s firm are experiencing difficulties with their fax
machine preventing service.

Given Mr. Harem’s argument in court Monday, that utilization of the State Mandated
eService provider to serve documents was inappropriate and the Court restriction on
mailing documents I believe faxing the documents is the most certain way to assure
that you do not fail to open the file and lose information you are charged with
safekeeping for your clients, again.

If you find that you have lost the documents again, I believe Mr. Kinder has been
served a complete set of documents– as it appears his fax machine is plugged in, he
has paid the telephone bill, and his staf f has not been disconnecting the machine
during the middle of a transmission.

I would appreciate it if you would look into these issues, and correct your signature
block in your pleadings. Attached are my numerous attempts at serving you and the
other eight lawyers attempting to represent your clients.

Respectfully, MOSSER LAW PLLC

/s/ Nicholas D. Mosser
Nicholas D. Mosser




Exhibit U                                                                                  App. 342
                              CERTIFICATE OF SERVICE

      I certify that on April 1, 2015, a true and correct copy of this document was
served pursuant to Texas Rules of Civil Procedure 21 & 21(a) on all nine counsel
representing Plaintiffs.

/s/ Nicholas D. Mosser
Nicholas D. Mosser




Exhibit U                                                                      App. 343
MOSSER LAW PLLC
                                          LAWYERS
      2805 DALLAS PARKWAY, SUITE 222 • PLANO, TEXAS 75093 • 972-733-3223 • FAX, 469-626-1073
                                          HDSSI~RL\\V.COi\1




                                        March 31, 2015



Via Facsimile:



RE:     Los Cucos VII, Inc., eta/. v. 8650 Frisco LLC, eta/.



Dear Counsel:

        Pursuant to Mr. Haren's argument in court yesterday, that e-service through the
state mandated e-service provider was not permitted, please find attached the
documents we previously sent to you in August that Mr. Kelly deleted in violation of his
ethical duties.




Exhibit U                                                                           App. 344
                                               Broadcast Report                                               p   1
                                                                                                   03/31/2015 18:44
                                                                                              Serial Ho. 31104235
                                                                                                       TC: 1112775

         Destination    Start Time Time        Prints   Result      Note
 17136589011           03-31 17:06 00:24:15 038/113     HG       L1
 12102268395           03-31 17:32 01:07:15 113/113 OK           L1
 18324765460           03-31 18:43 00:00:56 000/113     Ho Ans L1
Note    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORB: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BHD: Bind, SP: Special Original, FCDDE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
       TEL: RX from TEL, HG: Other Error, Cant: Continue, Ho Ans: Ho Answer,
       Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
       LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
       DC:Decode Error, MDH:MDH Response Error, DSH:DSH Response Error .




   .l.VIOSSE.R               LA."l-V PLLC
                                                    LAWTYERS
         2805 D.A.Ll..AS PAR~AY, SUr:rE 222 • PLANo, TEXAS 75093 • 972-'733-.3223 "' FAX, 469-626-l-07.3
                                                    l'i:ossaRX...-\.=.coM




                                                   March 31,2015



   VIa Facsimile:



   RE:     L q s C y c q s VII   lnq   et a!   y   865Q Erlscq LLC. a t a!_



   Dear Counsel:

           Pursuant to Mr. Haren's argument In court yesterday, that a-service through the
   state mandated a-service provider was not permitted, please find attached the
   documents we previously sent to you In August that Mr. Kelly deleted In violation of his
   ethical duties.




 Exhibit U                                                                                      App. 345
                                             Broadcast Report                                             p   1
                                                                                              03/31/2015 20:39
                                                                                         Serial No. 31104235
                                                                                                  TC: 1112776

         Destination    Start Time Time        Prints Result        Note
 17136589011           03-31 19:01 00:23:57 038/113 HG           L1
 12102268395           03-31 19:27 01:07:56 113/113 OK           L1
 18324765460           03-31 20:38 00:00:56 000/113 Ho Ans L1
Note    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORB: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BND: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLY: Relay, ~BX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result   OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
         TEL: RX from TEL, N6: Other Error, Cont: Continue, No Ans: No Answer,
         Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
         LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
         OC:Oecode Error, MDN:MOH Response Error, DSH:DSH Response Error.




   J.VCOSSE.R.              L.Al/\T PLLC
         .2805 D.A.LLAS P~.A.Y, Surrt3 222 -PI-ANO, TEXAS 75093 - 972-733-3223 • FAXr 469-626-1.073
                                                  l"'OI!II!IHRL.A'W".COM




                                               March 31, 2015



   VIa pacslmlle:



   RE:      LQS Cycq.s \/11. I n c   at at   v: BB§Q E r l s c q L L C a t a t...



   Dear Counsel:

           Pursuant to Mr. Haren's argument In court yesterday, that e-servlce through the
   state mandated a-service provider vvas not permitted, please flnd attached the
   documents we previously sent to you In August that Mr. Kelly deleted In violation of his
   ethical duties.




 Exhibit U                                                                                  App. 346
                                                   Broadcast Report                                                          p   1
                                                                                                                 03/31/2015 22:35
                                                                                                            Serial No. 31104235
                                                                                                                     TC: 1112777

         Destination    Start Time Time        Prints Result        Note
 17136589011           03-31 20:56 00:11:50 019/113 NG           L1
 12102268395           03-31 21:10 01:20:57 113/113 OK           L1
 18324765460           03-31 22:34 00:00:56 000/113 No Ans L1
Note    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, OR6: Original, FME: Frame Erase TX,
        ~IX: ~ixed Original, CALL: ~anual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BHD: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPAOR:IP Address Fax, I-FAX: Internet Fax
Result   OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
         TEL: RX from TEL, N6: Other Error, Cont: Continue, No Ans: No Answer,
         Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
         LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
         DC:Decode Error, MOH:MDH Response Error, DSH:DSH Response Error .




   .lV:COSSE.R.. LA..l'V .PLLC
                                                        LAW"YERB
         2805 DAI..I-AS P.A.RJ<:"'''VAY, St..rrrF.:I 222 "' PLANO, 'TEXAE 7509:3 "' 97.2-733-:3.223"' FAX< 4+69-626-1073
                                                        .MoaaaRLA=.coM




                                                       March 31. 2015



   Via Eapsl!nlla:



   RE:      L q s Cyco.s WI       Inc    elt al_   ~   BBSQ Er{sc:q LLC:        sf gl



   Dear Counsel:

           Pursuant to Mr. Haren's argument in court yesterday, that a-service through the
   state mandated e-servlce provider was not permitted, please find attached the
   documents we previously sent to you In August that Mr. Kelly deleted In violation of his
   ethical duties.




 Exhibit U                                                                                                      App. 347
                                           Broadcast Report                                                p   1
                                                                                               04/01/2015 00:40
                                                                                          Serial Ho. 31104235
                                                                                                   TC: 1112778

         Destination    Start Time Time        Prints Result        Hate
 17136589011           03-31 22:52 00:23:59 038/113 HG           L1
 12102268395           03-31 23:52 00:43:07 077/113 OK           L1
 18324785480           04-01 00:39 00:00:58 000/113 Ho Ans L1
Note    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORB: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BHD: Bind, SP: Special Original, FCOOE: F-Code, RTX: Re-Tx, RLY: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result   OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
         TEL: RX from TEL, NG: Other Error, Cant: Continue, No Ans: No Answer,
         Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
         LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
         OC:Decode Error, MOH:MON Response Error, OSN:DSN Response Error.




         2805 D~ P.ARICW"AY, Surra 222 "' Pr..ANo, TBXA.S 75093 - 97.2-733-3223 • FAXz 469 626-:1073
                                                l't:O$ .. URl:...A.'W.COl'l




                                               March 31. 2015



   VIa Facsimile•



   RE:     Lqs Cucqs Vll     Inc.   er a t y   B§SQ Eclsqq L L C e t nl.



   Dear Counsel:

          Pursuant to Mr. Haren's argument In court yesten:::lay, that a-service through the
  state mandated e-servfce pr-ovider was not per-mitted, please find attached the
  documents \NEI previously sent to you In August that Mr. Kelly deleted In violation of his
  ethical duties.




  Exhibit U                                                                                  App. 348
                                           Broadcast Report                                             p   1
                                                                                          04/01/2015 11:30
                                                                                     Serial Ho. 31104235
                                                                                              n::   111~896



         Destination    Start Time Time        Prints Result       Note
 17136589011           04-01 11:00 00:24:09 038/114 HG          L1
 18324785460           04-01 11:29 00:00:56 000/114 Ho Ans L1
Note    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORB: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BHO: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX:Internet Fax
Result   OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
         TEL: RX from TEL, HG: Other Error, Cant: Continue, Ho Ans: No Answer,
         Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
         LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
         DC:Oecode Error, MON:MOH Response Error, DSN:DSH Response Error .




  .lVCOSS.ER.                LA 1/V .PLLC



                                                March 31.2015



  VIa Eac;sirnlle:



  RE:      LOS Cu9Q4"F VII   Inc   et al   v:   BBSQ F r l s q q L L C   at af




  Dear Counsel:

          Pursuant to Mr. Haren's argument in court yesterday, that a-service through the
  state mandated a-service provider was not permitted, please find attached the
  documents vve previously sent to you in August that Mr. Kelly deleted in violation of his
  ethical duties.




  Exhibit U                                                                             App. 349
                                                     Broadcast Report                                           p   1
                                                                                                    04/01/2015 12:17
                                                                                               Serial No. 31104235
                                                                                                        TC: 1112942

         Destination    Start Time Time        Prints Result       Note
 7136589011            04-01 11:48 00:24:14 038/114 NG          L1
 8324765460            04-01 12:16 00:00:56 000/114 No Ans L1
Note    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BND: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX:Internet Fax
Result OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
       TEL: AX from TEL, NG: Other Error, Cant: Continue, No Ans: Ho Answer,
       Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
       LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
       DC:Decode Error, MDN:MDN Response Error, DSN:DSH Response Error .




  .1.\4"OSSE.R. LA 1/V""" .PL L C
                                                        LAW'Y:ERS
        2805 DALl-AS PARK"''TAY, Surra 222 "' PLANO, TEXAS 7509.3 • 972-7.33-3223 '" FAX: 469-626-3.07.3
                                                        MOBSE;RL.A'W.C'ONC




                                                      March 31, 2015



  VIa   Facsimile~




  RE:     L o s Cuco.s- Vll.. Inc.. .. e ( g l   y    B65Q Erlseq LLC:: e t a l..



  Dear Counsel:

          Pursuant to Mr. Haren's argument In court yesterday, that a-service through the
  state mandated e-service provider was not permitted, please find attached the
  documents we previously sent to you In August that Mr. Kelly deleted in violation of his
  ethical duties ..




  Exhibit U                                                                                       App. 350
                                             TX Report                                                      p   1
                                                                                                 04/01/2015 14:41
                                                                                            Serial No. 31104235
                                                                                                     rc: 111?976

         Destination    Start Time Time        Prints Result        Note
 17136589011           04-01 14:37 00:03:57 017/017 OK           L1
Hote    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BND: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLY: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result   OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
         TEL: AX from TEL, NG: Other Error, Cont: Continue, Ho Ans: Ho Answer,
         Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
         LOVA:Aeceiving length Over, POVER:Receiving page Over, FIL:File Error,
         OC:Oecode Error, MDH:MOH Response Error, DSH:OSH Response Error.




         2805 DALLAS PARKWAY, Surr.e 222 • PLANO, TEXAS 7509.3 • 97.2-733--3223 • F'.AX:: 469-6.26-1073
                                                   1'-lCJI!!Illl'tRLA.W".CCJM




                                                  March 31 • 201 5



   Via Eacslmlla•



   RE:      Lq.s Cuco.s Vll   lace   et al   v;   BBSQ Erl.scq LLC.             e t a{..



   Dear Counsel:

           Pursuant to Mr. Haren's argument in court yesterday. that a-service through the
   state mandated a-service provider was not permitted. please find attached the
   documents we previously sent to you In August that Mr. Kelly deleted In violation of his
   ethical duties.




  Exhibit U                                                                                    App. 351
                                             TX Report                                                  p   1
                                                                                          04/01/2015 14:50
                                                                                     Serial Ho. 31104235
                                                                                              TC: 111?878

          Destination    Start Time   Time          Prints    Result        Note
 1832476546             04-01 14:48 00:00:58 000/011    No Ans L1
Hate    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWO: Forward, PC: PC-FAX,
        BHD: Bind, SP: Special Original, FCOOE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPAOR:IP Address Fax, I-FAX: Internet Fax
Result   OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
         TEL: RX from TEL, HG: Other Error, Cant: Continue, Ho Ans: No Answer,
         Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
         LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
         OC:Decode Error, MOH:MOH Response Error, DSH:DSH Response Error .




  .1\/.COSSER.             LA 1/V" .PLLC



                                               March 31, 2015



   VIla Eapslmlle~




   RE:     Lq.s Cyqq.s \Of   lnp   e'l sl_ v   8650 F r l s c q LLC:   e t «le



   Dear Counsel:

          Pursuant to Mr. Haren's argument in court yesterday. that a-service through the
  state mandated a-service provider was not permitted. please find attached the
  documents we previously sent to you In August that Mr. Ke11y deleted In violation of his
  ethical duties.




  Exhibit U                                                                             App. 352
                                              Broadcast Report                                               p   1
                                                                                                 04/01/2015 14:55
                                                                                            Serial Ho. 31104235
                                                                                                     TC: 111?980

         Destination    Start Time Time        Prints Result        Note
 17136589011           04-01 14:44 00:04:38 020/020 OK           L1
 18324765460           04-01 14:54 00:00:56 000/020 Ho Ans L1
Hote    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BND: Bind, SP: Special Original, FCOOE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result   OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
         TEL: RX from TEL, NG: Other Error, Cont: Continue, No Ans: No Answer,
         Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
         LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
         DC:Decode Error, MON:MDH Response Error, OSH:OSH Response Error .




  .l.VCOSSER.. LA. 'l-V .PLLC
                                                  LAWY.BRS
         2805 DALLAS P.ARKW"AY, Surra 222 • PLANO, TBXA.S 75093 • 97.Z..733-S22S • FAX.: 469-626-1073
                                                  1'1:01l1SX!Rl".JL""''.COM




                                               March 31. 201 5



  VIa Eacslrnlle•



  RE:      L o s Cycq.s Vll   Inc   •t a(,   y: Bf!i50 F r l s c q L L C      at «I



  Dear Counsel:

         Pursuant to Mr. Haren's argument in court yesterday. that a-service through the
  state mandated a-service provider was not permitted. please find attached the
  documents we previously sent to you in August that Mr. Kelly deleted in violation of his
  ethical duties.




 Exhibit U                                                                                     App. 353
                                                 Broadcast Report                                         p   1
                                                                                               04/01/2015 15:07
                                                                                          Serial Ho. 31104235
                                                                                                   TC: 111?985

         Destination    Start Time Time        Prints Result        Note
 8324765460            04-01 15:00 00:00:56 000/023 Ho Ans L1
 7136589011            04-01 15:01 00:06:29 023/023 OK           L1
Note    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BHD: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result   OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
         TEL: RX from TEL, NG: Other Error, Cant: Continue, No Ans: No Answer,
         Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
         LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
         DC:Decode Error, MDN:MDN Response Error, DSH:DSH Response Error .




   .1\;:ffOSSE.R..           LA 1/V .PL L C
                                                     LAW'YBRS
         ;::aS05 DALLAS PARKWAY, SurTE 222"' PLANO, TEXAS 75093- 97.2-733-3223 • FAX< 469-6.26-1.073
                                                     MC>I!ili!IE!RI.A....,..COM




                                                   March 31, 20'15



   Via Epeftll'!'l!lle-



   RE:      LQ§ Cycq..s   'Vlf   Inc   a t at.   v: 8650 Ecfscq L L C e t at..



   Dear Counsel:

           Pursuant to Mr. Haren's argument in court yesten::lay, that a-service through the
   state mandated a-service provider was not permitted, please find attached the
   documents we previously sent to you fn August that Mr. Kelly deleted In violation of his
   ethical duties.




  Exhibit U                                                                                  App. 354
                                                Broadcast Report                                        p   1
                                                                                          04/01/2015 15:17
                                                                                     Serial Ho. 31104235
                                                                                              TC: 1112986

         Destination    Start Time Time        Prints Result        Note
 7136589011            04-01 15:09 00:04:08 020/020 OK           L1
 8324765460            04-01 15:16 00:00:56 000/020 Ho Ans L1
Note    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BHD: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLY: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result   OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
         TEL: AX from TEL, NG: Other Error, Cont: Continue, No Ans: No Answer,
         Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
         LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
         DC:Decode Error, MDH:MDH Response Error, DSH:DSH Response Error.




   J'VCOSSER.                .L.Al/V' .PLLC



                                                    March 31. 2015



   Via Facsirnilo:



   RE:      Lg.s- CyCQ"S   V!l   lnq   at • l   y   B65Q E r l s q g LLC o t a f



   Dear Counsel:

           Pursuant to Mr. Haren's argument In court yesterday. that a-service through the
   state mandated e-servlce provider vvas not permitted. please find attached the
   documents we previously sent to you in August that Mr. Kelly deleted In violation of his
   ethical duties.




 Exhibit U                                                                             App. 355
                                               Broadcast Report                                                 p   1
                                                                                                    04/01/2015 15:27
                                                                                               Serial Ho. 31104235
                                                                                                        TC: 1112990

         Destination    Start Time Time        Prints Result        Note
 7136589011            04-01 15:18 00:05:07 022/022 OK           L1
 8324765460            04-01 15:26 00:00:56 000/022 No Ans L1
Hate    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BHD: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLY: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result   OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
         TEL: RX from TEL, H6: Other Error, Cont: Continue, Ho Ans: Ho Answer,
         Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
         LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
         DC:Decode Error, MDH:MDH Response Error, DSN:OSH Response Error .




   .l.V:COSS.E.R             LA.l"V" P.LLC
                                                     LAW"Y.B.RS
         2805 DAL.l...AS P~AY. S'lrrr:E 222 '"' PLANO, TEXAS 75093 • 972--733-32.23 '"' FAX: 469-626-1073
                                                     MOiilSERLA."'W.COM




                                                    March 31, 2015




   RE:     Lqs Cucqs      yn   Inc   et   al   y;   8650 Erlseq I LC      •t a{,


   Dear Counsel:

           Pursuant to Mr. Haren's argument in court yesterday, that a-service through the
   state mandated a-service provider was not permitted, please find attached the
   documents we previously sent to you In August that Mr. Kelly deleted in violation of his
   ethical duties_




  Exhibit U                                                                                       App. 356
                                                Broadcast Report                                        p   1
                                                                                           04/01/2015 15:51
                                                                                      Serial No. 31104235
                                                                                               TC: 111?998

         Destination    Start Time Time        Prints Result        Note
 7138589011            04-01 15:39 00:06:59 025/025 OK           L1
 8324785480            04-01 15:50 00:00:56 000/025 No Ans L1
Note    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORS: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BND: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLV: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPAOR:IP Address Fax, I-FAX: Internet Fax
Result    OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
          TEL: AX from TEL, NG: Other Error, Cont: Continue, No Ans: No Answer,
          Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
          LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
          OC:Oecode Error, MDH:MDH Response Error, OSH:OSH Response Error.




  JVIOSSER..                LA.l'V"" PLLC



                                                     March 31. 2015



   VIa Eac;;slmlle-



   RE.:     Lp.s   Cup~   Vll   Inc   et: s l   V.   BB5Q Erlsc:q LLC a t al-



   Dear Counsel:

          Pursuant to Mr. Haren"s argument In court yesterday, that a-service through the
   state mandated a-service provider was not perrnlttad. please find attached the
   docurnen'ls we previously sent to you In August that Mr. Kelly deleted in violation of his
   ethical duties.




  Exhibit U                                                                             App. 357
                                              Broadcast Report                                                  p   1
                                                                                                    04/01/2015 15:38
                                                                                               Serial Ho. 31104235
                                                                                                        TC: 1112995

         Destination    Start Time Time        Prints Result        Note
 7138589011            04-01 15:27 00:05:58 022/022 OK           L1
 8324785480            04-01 15:37 00:00:58 000/022 No Ans L1
Note    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, ORG: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BHD: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLY: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX: Internet Fax
Result   OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
         TEL: RX from TEL, NG: Other Error, Cont: Continue, No Ans: No Answer,
         Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
         LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
         DC:Decode Error, MDH:MDH Response Error, DSN:DSN Response Error .




   .l.VIOSS.E.R.             LA 1/V PLLC
                                                   LA. W'YE'.RS
         2805 DALLAS PARIC'.XI"A.Y. Surra 222 • P.L.A.NO, TBXA.S 75093 • 972-733-.3223 • FAX, 469-626-1073
                                                   Mc:>SSDRL.A'W.COM




                                                  March 31, 2015



   VIP Facsimile:



   RE:      L q s Qycq.s VII   Inc;   at a!   y   BSSQ Frl.sqq L L C   a t aL



   Dear Counsel:

           Pursuant. to Mr. Haren"s argument In court yesterday, that a-service through the
   state mandated a-service provider VIlas not permitted, please find attached the
   documents we previously sent. to you In August that Mr. Kelly deleted In violation of his
   ethical duties.




  Exhibit U                                                                                       App. 358
                                             Broadcast Report                                           p   1
                                                                                             04/01/2015 16:10
                                                                                        Serial Ho. 31104235
                                                                                                 TC: 1113011

         Destination    Start Time Time        Prints Result       Hote
 7136589011            04-01 15:51 00:04:50 027/027     OK      L1
 8324765460            04-01 16:09 00:00:56 000/027 Ho Ans L1
Hote    L1: Main Circuit, L2: Sub Circuit, TMR: Timer, POL: Poll, OR6: Original, FME: Frame Erase TX,
        MIX: Mixed Original, CALL: Manual Communication, CSRC: CSRC, FWD: Forward, PC: PC-FAX,
        BHD: Bind, SP: Special Original, FCODE: F-Code, RTX: Re-Tx, RLY: Relay, MBX: Confidential,
        BUL:Bulletin, SIP:SIP-Fax, IPADR:IP Address Fax, I-FAX:Internet Fax
Result   OK: Communication OK, S-OK: Stop Communication, PW-OFF: Power Switch OFF,
         TEL: RX from TEL, H6: Other Error, Cont: Continue, Ho Ans: Ho Answer,
         Refuse: Receipt Refused, Busy: Busy, M-Full:Memory Full,
         LOVR:Receiving length Over, POVER:Receiving page Over, FIL:File Error,
         DC:Decode Error, MDH:MDH Response Error, DSH:DSH Response Error.




         2805 D~ P.A:RKWAY, SUlTEI222- PLANO, TEXAS 75093 • 972-73.3-3223 • FAX. 469-626-l-073
                                                   MotaallRl"-A"<<''7.COM




                                                  March 31.2015



   Via Epc:aimilo•



   RE:      Lqs Cucos ltll   Inc.,   pt al   v:   865'0 Erlsc:q L L C       e t a !..



   Dear Counsel:

           Pursuant to Mr. Haren's argument in court yesterday. that a-service through the
   state mandated a-service provider was not permitted, please find attached the
   documents vve previously sent to you in August that Mr. Kelly deleted in violation of" his
   ethical duties.




  Exhibit U                                                                               App. 359
                                                                                                        4/6/2015 10:13:27 AM
                                                                                   Chris Daniel - District Clerk Harris County
                                                                                                       Envelope No. 4765552
                                                                                                         By: EVELYN PALMER
                                                                                                 Filed: 4/6/2015 10:13:27 AM

                                       Cause No. 2014-10896

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

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


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

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

occasions. Defendants have refused to do so. Plaintiffs request that the Court issue a fourth order

compelling production and impose sanctions to ensure compliance therewith.

                                             Background

        On April 14, 2015, Plaintiffs propounded requests for production seeking several

categories of financial documents. See Exhibit 1, Requests for Production at 10 (requests 1–5, 7–

8). In response, Defendants made numerous specious objections1 and refused to produce the vast

majority of responsive documents. See Exhibit 2, Defendants’ Response at 1–3. The Court

overruled those objections and ordered production of all responsive documents on three separate

occasions; Defendants did not comply with any of these orders:

           On June 23, 2014, the Court overruled Defendants’ objections and ordered production
            of all responsive documents. Exhibit 3, Transcript of Motion to Compel Hearing at
            23:2–9. Defendants did not comply with that order.



1
  For example, Defendants offered several objections applicable only to banks and the federal government,
respectively.




Exhibit V                                                                                     App. 360
            On July 28, 2014, the Court again ordered Defendants to produce all responsive
             documents “by August 1, 2014.” Exhibit 4, Order on Plaintiffs’ Third Motion to
             Compel. Defendants did not comply with that order either.

            On March 30, 2015, the Court ordered Defendants a third time to produce all
             responsive documents “by 5:00 p.m. on Wednesday, April 1, 2015.” Exhibit 5, Order
             on Plaintiffs’ Second Motion to Enforce the Court’s Order. Defendants produced 112
             additional pages but still failed to comply with the Court’s order.2 See Exhibit 6,
             Document Production. All of these pages included a large and opaque “confidential”
             watermark obscuring a large portion of the text. See generally id.

         Defendants’ most recent production does not come close to complying with the Court’s

three orders:

    What Defendants were ordered to produce:                    What Defendants actually produced:

All documents and records provided to or Defendants produced the Holtman Documents3
received from 8650 Frisco, LLC’s accountants but few, if any, documents provided to
(including, but not limited to Mike Verucchi, Verucchi.
CPA, Holtman & Company, LLC, or Hal
Holtman, CPA), which relate in any way to
8650 Frisco, LLC.

All documents and records in the possession of Defendants produced the Holtman Documents
8650 Frisco, LLC’s accountants (including, but but few, if any, documents from Verucchi.
not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA),
which relate in any way to 8650 Frisco, LLC.

All financial records of 8650 Frisco, LLC.                  Defendants produced bank statements for one
                                                            account from April through July, 2014. See id.
                                                            at SUPP.7236–59.




2
  According to Defendants, they “served” these same 112 pages on August 1, 2014 through an electronic filing
service provider in violation of Texas Rule of Civil Procedure 21a(a)(2). But even if that service had been proper,
the inadequate production would have still violated the Court’s order.
3
 As the Court may recall, Plaintiffs obtained 7,235 pages of documents via subpoena from Hal Holtman (the
“Holtman Documents”). Plaintiffs Bates labeled these documents and forwarded them to Defendants. Last June,
Defendants “produced” the Holtman Documents, complete with Plaintiffs’ original Bates numbering.



                                                        2
Exhibit V                                                                                            App. 361
 What Defendants were ordered to produce:                What Defendants actually produced:

All accounting records of 8650 Frisco, LLC.          Defendants produced a spreadsheet which
                                                     appears to cover three weeks of sales and
                                                     inventory. See id. at SUPP.7275–338.
                                                     Defendants      also  produced      Defendants
                                                     produced a “sales report” of unclear origin
                                                     showing sales for April through July, 2014. See
                                                     id. at 7338–47.

All bank statements of 8650 Frisco, LLC.             Defendants produced bank statements for one
                                                     account from April through July, 2014. See id.
                                                     at SUPP.7236–59.

All tax records (including all 1099 forms, W-2 Defendants produced four letters from the IRS
forms, and K-1 forms) related to 8650 Frisco, concerning 8650 Frisco’s tax filings and an
LLC.                                           email forwarding correspondence from the IRS
                                               regarding other tax filings; Defendants did not
                                               produce the actual filings being discussed or
                                               any other tax filings. See id. at 7260–70

All communications and correspondence with           Defendants produced the Holtman Documents
8650 Frisco, LLC’s accountants (including, but       and an additional email from Holtman;
not limited to Mike Verucchi, CPA, Holtman           Defendants    did    not    produce  any
& Company, LLC, or Hal Holtman, CPA),                communications with Verucchi.
which relate in any way to 8650 Frisco, LLC

       Despite the Court’s three orders, Defendants have not produced (1) bank records before

April 2014 or after July 2014; (2) accounting records such as QuickBooks files, balance sheets,

cash flow reports, profit and loss statements, etc.; (3) tax records (other than a few letters from

the IRS); or (4) documents/correspondence from their accountants other the Holtman Documents

which had been produced by Plaintiffs to Defendants.

                                           Discussion

       The Court has unambiguously ordered Defendants to produce all responsive documents

on three separate occasions. All three times, Defendants have simply ignored the Court’s order.

Plaintiffs respectfully request that the Court yet again command Defendants to comply with the

Court’s orders. Standing alone, the fourth order is no more likely to cause compliance than the



                                                 3
Exhibit V                                                                               App. 362
prior three.4 As such, Plaintiffs ask the Court to impose one or more of the following sanctions

under Rule 215.2:

            disallowing further discovery by Defendants until Defendants have filed an affidavit
             swearing to compliance with the Court’s orders;

            ordering Defendants to pay the costs incurred by Plaintiffs in all four motions to
             seeking the documents;

            ordering that the matter at issue (specifically, whether Plaintiffs face irreparable harm
             from Defendants’ failure to provide the note/security required by the parties’
             contract) be established in Plaintiffs’ favor; and/or

            holding Defendants and their attorneys in contempt

See TEX. R. CIV. P. 215.2(b).

                                                   Conclusion

        Defendants have ignored three orders by the Court to produce documents. Plaintiffs

request that the Court (1) issue a fourth order compelling Defendants to produce responsive

documents, (2) impose a sanction to ensure compliance with that order, and (3) grant Plaintiffs

all other relief to which they are entitled.




4
  This is particularly true in light of the Court’s prior findings that “Defendants’ counsel has abused the discovery
process in resisting discovery” and that “Defendants have advanced frivolous arguments without basis in fact or
law” as part of “a larger pattern of improper objections, motions to quash, and invocations of privilege.” Exhibit 7,
Order on Plaintiffs’ Emergency Motion to Compel and for Sanctions; Exhibit 8, Order Denying Motion to Quash.



                                                         4
Exhibit V                                                                                             App. 363
                                                          Respectfully submitted,

                                                          Hawash Meade Gaston
                                                          Neese & Cicack LLP

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

                                                          Stephens & Domnitz, PLLC

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

                                                          Cox Smith Matthews Incorporated

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

                                                          Attorneys for Plaintiffs


                                  Certificate of Conference

       I attempted to confer with Defendants via fax on April 1 and 2, 2015. See Exhibit 9, Fax

to Defendants. Shortly after my second fax, Mr. Nicholas Mosser called my office and offered to


                                              5
Exhibit V                                                                            App. 364
re-send 7,235 page Holtman Documents which Plaintiffs had previously produced to Defendants.

When Mr. Mosser began to raise his voice while refusing to actually discuss the requirements of

the Court’s order (and in light of his demonstrated history of telephonic discourtesy and

distortion), I asked him to contact me in writing and terminated the call. He has not contacted me

further.

                                                                /s/ Samuel B. Haren
                                                                Samuel B. Haren


                                       Certificate of Service

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

electronic service on April 6, 2015.

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

                                                                /s/ Samuel B. Haren
                                                                Samuel B. Haren




                                                 6
Exhibit V                                                                             App. 365
                               CAUSE NO. 2014-01089

LOS CUCOS MEXICAN CAFE                     §      IN THE DISTRICT COURT OF
VIII, INC.; LOS CUCOS MEXICAN              §
CAFE IV, INC.; MANUEL                      §
CABRERA; and SERGIO                        §
CABRERA,                                   §
             Plaintiffs                    §
                                           §
v.                                         §
                                           §      HARRIS COUNTY, TEXAS
8650 FRISCO, LLC D/B/A ESTILO              §
GAUCHO BRAZILIAN                           §
STEAKHOUSE; MANDONA, LLC;                  §
GALOVELHO, LLC; BAHTCHE,                   §
LLC; CLAUDIO NUNES; and                    §
DAVID JEIEL RODRIGUES,                     §
           Defendants                      §      133rd JUDICIAL DISTRICT


     PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS TO 8650 FRISCO, LLC
              D/B/A ESTILO GAUCHO BRAZILIAN STEAKHOUSE

TO:    Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse, by and
       through its counsel of record, Nicholas D. Mosser and Benjamin Casey, Mosser
       Law PLLC, 17110 Dallas Parkway, Suite 290, Dallas, Texas 75248.

       Pursuant to the Texas Rules of Civil Procedure, Plaintiffs Los Cucos Mexican

Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera

(“Plaintiffs”) serve their First Set of Requests for Admissions, Requests for Production

and First Set of Interrogatories on Defendant 8650 Frisco, LLC d/b/a Estilo Gaucho

Brazilian Steakhouse (“Defendant”) as authorized by Rules 196 and 198, TEX. R. CIV. P.

Defendant must specifically admit or deny and produce all requested documents in its

possession, custody, or control (as they are kept in the ordinary course of business or

organized and labeled to correspond with categories in each request) for inspection and




Exhibit V
                                    Exhibit 1                                App. 366
copying, and not more than 30 days after service, at the office of HAWASH MEADE

GASTON NEESE & CICACK LLP, 2118 Smith Street, Houston, Texas 77002.

                                            Respectfully submitted,

                                            STEPHENS & DOMNITZ, PLLC

                                            /s/ Kelly D. Stephens
                                            Kelly D. Stephens
                                            SBN: 19158300
                                            P.O. Box 79734
                                            Houston, Texas 77279-9734
                                            Tel: 281-394-3287
                                            Fax: 832-476-5460
                                            kstephens@stephensdomnitz.com


                                            HAWASH MEADE GASTON NEESE
                                            & CICACK LLP


                                             /s/ Andrew K. Meade
                                            Andrew K. Meade
                                            State Bar No. 24032854
                                            Jeremy M. Masten
                                            State Bar No. 24083454
                                            2118 Smith Street
                                            Houston, Texas 77002
                                            713-658-9006 (Direct & Fax)
                                            ameade@hmgllp.com
                                            jmasten@hmgllp.com

                                            ATTORNEYS FOR PLAINTIFFS
                                            LOS CUCOS MEXICAN CAFÉ VIII, Inc.,
                                            LOS CUCOS MEXICAN CAFÉ IV, Inc.,
                                            MANUEL CABRERA, and
                                            SERGIO CABRERA




                                            2

Exhibit V                                                                 App. 367
                              CERTIFICATE OF SERVICE

       A true and correct copy of the foregoing document has been served to the
following pursuant to the Texas Rules of Civil Procedure on April 14, 2014.

            Via Fax: 972-267-5072 and
            email: courtdocuments@mosserlaw.com
            James C. Mosser
            Nicholas D. Mosser
            Mosser Law PLLC
            17110 Dallas Pkwy, Suite 290
            Dallas, TX 75248


                                     /s/ Andrew K. Meade
                                     Andrew K. Meade




                                           3

Exhibit V                                                            App. 368
                            DEFINITIONS AND INSTRUCTIONS

        1.     As used throughout this request (including these definitions and
instructions), the term “documents” means each and every document (as defined in
Rule 34, FED. R. CIV. P.), all electronically stored information, and each and every
tangible thing, including but not limited to both electronic and hard copy documents, in
the possession, custody, or control of Plaintiff, whether a copy, draft, or original,
wherever located, with all exhibits, attachments, and schedules, including but not
limited to the following: correspondence and drafts of correspondence; notes or
summaries of conversations; income tax returns, forms, schedules, or worksheets; inter-
and intra-office memoranda; reports; comments; worksheets; plans; minutes; notes;
notices or notifications; findings; conclusions; memoranda; contracts or agreements of
any kind; brochures, circulars, bulletins, advertisements, sales catalogs or literature;
packages, packaging, and package inserts; notes, records, summaries, or other reports of
conferences, meetings, visits, surveys, discussions, inspections, examinations, reviews
or telephone conversations; purchase orders, quotations, estimates, invoices, bids,
receipts, or acknowledgements, including the reverse sides of all such documents with
printing, typing or writing on the reverse sides; bills of lading and other shipping
documents; credit agreements or credit memoranda; contract or lease offers or
proposals; executed or proposed agreements, contracts, franchise agreements, licenses,
leases, insurance policies and riders, or options; proposals; diaries; desk calendars,
appointment books, or telephone call books; property valuations or appraisals, and
their updates; affidavits, depositions, transcripts and statements, or summaries or
excerpts thereof; stenographic notes; books and records; financial data; stock certificates
and evidence of stock ownership; newspaper or magazine articles; pamphlets, books,
texts, notebooks, magazines, manuals, journals, and publications; notepads, tabulations,
data compilations, calculations, or computations; schedules; drafts; charts and maps;
forecasts and projections; drawings, designs, plans, specifications, graphs, blueprints,
sketches, or diagrams; orders; pleadings and court filings; checks and check stubs (front
and back); records or transcripts of statements, depositions, conversations, meetings,
discussions, conferences or interviews, whether in person or by telephone or by other
means; workpapers; printouts or other stored information from computers or other
information retention or processing systems; e-mail or electronic mail or
communications, in whatever form; instant messages in whatever form; photographic
matter or sound reproduction matter however produced, reproduced or stored;
government reports, regulations, filings or orders; any other written, printed, typed,
taped, recorded, or graphic matters; any exhibits, attachments, or schedules to or with
the foregoing; any drafts of the foregoing; and any copies or duplicates of the foregoing
that are different because of marginal or handwritten notations, or because of any
markings thereon or alterations thereof.

       2.    All electronically stored information should be produced as an electronic
copy, preserving all metadata.

                                                4

Exhibit V                                                                       App. 369
       3.    Throughout this request (including these definitions and instructions), the
term “communications” means any and all of the following: writings, oral
communications, electronic communications (including emails, text messages, and
instant messages), wire communications, conversations by telephone, meetings, and
any contact, oral or written, formal or informal, at any time or place, and under any
circumstance whatsoever, in which information of any nature was transmitted or
exchanged in any form or by any medium.

       4.     Throughout this request (including these definitions and instructions), the
phrases “relating to,” “relates to,” “related to,” "regarding," and “in relation to” mean
constituting or evidencing, and directly or indirectly mentioning, describing, referring
to, pertaining to, being connected with, reflecting upon, or concerning the stated subject
matter.

      5.    Throughout this request (including these definitions and instructions), the
words “any” and “all” shall be considered to include “each” and “each and every.”

       6.     Throughout this request (including these definitions and instructions), the
singular of any word shall include the plural, and the plural of any word shall include
the singular. The masculine form shall include the feminine and neutral forms. The
terms “and” and “or” shall mean “and/or” inclusively.

       7.     Throughout this request (including these definitions and instructions), the
terms “you” and “your” refer to the party responding to the request, as well as his, her,
or its present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on behalf of or
under the control of the responding party.

       8.      Throughout this request (including these definitions and instructions),
“Defendant” and “Frisco” mean 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian
Steakhouse, a named defendant in this matter. The term “Defendant” or “Frisco” also
includes Defendant’s present and former agents, employees, counselors, consultants,
representatives, attorneys, and any other person or entity acting or purporting to act on
its behalf or under its control.

       9.     Throughout this request (including these definitions and instructions), the
term “Plaintiff” or “Plaintiffs” means any named Plaintiff in this matter, including their
present and former agents, employees, counselors, consultants, representatives,
attorneys, and any other person or entity acting or purporting to act on its behalf or
under their or its control.

      10.   Throughout this request (including these definitions and instructions),
“Los Cucos” means Los Cucos Mexican Café VIII, Inc. and Los Cucos Mexican Café IV,

                                               5

Exhibit V                                                                      App. 370
Inc., named defendants in this matter and includes any present and former agents,
employees, counselors, consultants, affiliates, subsidiaries, representatives, attorneys,
and/or any other person or entity acting or purporting to act on the behalf or under the
control of Los Cucos.

       11.   If you contend that any document requested here need not be produced
under a privilege or other protection against disclosure, provide an itemized log of the
document(s) being withheld from production. In the log, specify the date of each such
document, its author(s), all recipient(s), and any person(s) copied on the document, the
paragraph of this request to which the document responds, and a brief description of
the document’s contents that supplies enough detail to assess the applicability of the
privilege or protection being claimed. In addition, please specify the privilege or
protection upon which you rely as their basis for withholding the document(s) from
production.

      12.    If you intend to produce any electronic document or information in
response to this request, please contact counsel for Los Cucos to discuss the form in
which such electronic document or information will be produced.

      13.   If you have any questions about this request, please contact counsel for
Los Cucos promptly for clarification.

       14.     Unless otherwise stated, the time period covered by this request is January
1, 2010 to the present.

      15.    You are reminded of your duty under Rule 193.5, Tex. R. Civ. P., to amend
or supplement any response that was incomplete or incorrect when made or that,
although correct and complete when made, is no longer complete and correct.




                                               6

Exhibit V                                                                      App. 371
                               REQUESTS FOR ADMISSIONS

Admit or deny the following:
      Admission No. 1. 8650 Frisco, LLC received money from Los Cucos Mexican
Café VIII, LLC.
      Admission No. 2. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as a loan.

      Admission No. 3. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VIII, LLC as an investment.

      Admission No. 4. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe VIII, LLC.

       Admission No. 5. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe VIII, LLC.

       Admission No. 6. 8650 Frisco, LLC received money from Los Cucos Mexican
Cafe IV, LLC.

      Admission No. 7. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe IV, LLC as a loan.

      Admission No. 8. 8650 Frisco, LLC intended to treat the money it received from
Los Cucos Mexican Cafe VI, LLC as an investment.

      Admission No. 9. 8650 Frisco, LLC intended to repay the money it received
from Los Cucos Mexican Cafe IV, LLC.

       Admission No. 10. 8650 Frisco, LLC did not intend to repay the money it
received from Los Cucos Mexican Cafe IV, LLC.

      Admission No. 11. 8650 Frisco, LLC received money from Manuel Cabrera.

      Admission No. 12. 8650 Frisco, LLC intended to treat the money it received
from Manuel Cabrera as a loan.

       Admission No. 13. Admit that 8650 Frisco, LLC intended to treat the money it
received from Manuel Cabrera as an investment.

      Admission No. 14. 8650 Frisco, LLC intended to repay the money it received
from Manuel Cabrera.

                                            7

Exhibit V                                                                App. 372
       Admission No. 15. 8650 Frisco, LLC did not intend to repay the money it
received from Manuel Cabrera.

      Admission No. 16. 8650 Frisco, LLC received money from Sergio Cabrera.

      Admission No. 17. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as a loan.

      Admission No. 18. 8650 Frisco, LLC intended to treat the money it received
from Sergio Cabrera as an investment.

      Admission No. 19. 8650 Frisco, LLC intended to repay the money it received
from Sergio Cabrera.

       Admission No. 20. 8650 Frisco, LLC did not intend to repay the money it
received from Sergio Cabrera.

      Admission No. 21. 8650 Frisco, LLC received equipment from Los Cucos
Mexican Cafe IV, LLC.

       Admission No. 22. 8650 Frisco, LLC received furniture from Los Cucos Mexican
Cafe IV, LLC.

      Admission No. 23. 8650 Frisco, LLC is currently using equipment it received
from Los Cucos Mexican Cafe IV, LLC.

      Admission No. 24. 8650 Frisco, LLC is currently using furniture it received from
Los Cucos Mexican Cafe IV, LLC.

      Admission No. 25. 8650 Frisco, LLC is currently using equipment paid for by
from Los Cucos Mexican Cafe IV, LLC.

      Admission No. 26. 8650 Frisco, LLC is currently using furniture paid for by Los
Cucos Mexican Cafe IV, LLC.

      Admission No. 27. 8650 Frisco, LLC did not pay Los Cucos Mexican Cafe IV,
LLC for any equipment or furniture.

      Admission No. 28. Los Cucos Mexican Cafe IV, LLC did not gift furniture to
8650 Frisco, LLC.



                                             8

Exhibit V                                                                  App. 373
      Admission No. 29. Los Cucos Mexican Cafe VIII, LLC did not gift money to
8650 Frisco, LLC.

       Admission No. 30. Admit that Manuel Cabrera did not gift money to 8650
Frisco, LLC.

      Admission No. 31. Sergio Cabrera did not gift money to 8650 Frisco, LLC.

      Admission No. 32. 8650 Frisco, LLC is currently operating at a net profit.

      Admission No. 33. 8650 Frisco, LLC is currently operating at a new loss.

       Admission No. 34. 8650 Frisco, LLC is currently using the name Estilo Goucho
Brazilian Steakhouse.

       Admission No. 35. 8650 Frisco, LLC is has been using the name Estilo Goucho
Brazilian Steakhouse since February, 2013.

      Admission No. 36. 8650 Frisco, LLC has assigned, in writing, its rights to the
mark Estilo Gaucho Bazilian Steakhouse to Bahtche, LLC.

      Admission No. 37. 8650 Frisco, LLC has not assigned, in writing, its rights to the
mark Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.

      Admission No. 38. 8650 Frisco, LLC has received compensation from Bahtche,
LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.

      Admission No. 39. 8650 Frisco, LLC has not received compensation from
Bahtche, LLC for the ownership of the mark Estilo Gaucho Brazilian Steakhouse.

       Admission No. 40. Estilo Gaucho Brazilian Steakhouse is a trade name of 8650
Frisco, LLC.

      Admission No. 41. 8650 Frisco, LLC does business as Estilo Gaucho Brazilian
Steakhouse.




                                              9

Exhibit V                                                                    App. 374
                                Requests for Production
       Request No. 1. Produce all documents and records provided to or received from
8650 Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA,
Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650
Frisco, LLC.

       Request No. 2. Produce all documents and records in the possession of 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.

       Request No. 3. Produce all financial records of 8650 Frisco, LLC.

       Request No. 4. Produce all accounting records of 8650 Frisco, LLC.

       Request No. 5. Produce all bank statements of 8650 Frisco, LLC.

       Request No. 6. Produce all point of sale data and reports related to 8650 Frisco,
LLC.

       Request No. 7. Produce all tax records (including all 1099 forms, W-2 forms, and
K-1 forms) related to 8650 Frisco, LLC.

       Request No. 8. Produce all communications and correspondence with 8650
Frisco, LLC’s accountants (including, but not limited to Mike Verucchi, CPA, Holtman
& Company, LLC, or Hal Holtman, CPA), which relate in any way to 8650 Frisco, LLC.

       Request No. 9. Produce all payroll records for 8650 Frisco, LLC.

      Request No. 10. Produce all records of money received from any Plaintiff in this
lawsuit.

        Request No. 11. Produce all records of money paid or distributed to any Plaintiff
in this lawsuit.

       Request No. 12. Produce all correspondence and communications with each
Plaintiff in this lawsuit.

      Request No. 13. Produce all agreements, including all drafts of agreements,
between the Parties, which relate in any way to 8650 Frisco, LLC.



                                              10

Exhibit V                                                                     App. 375
      Request No. 14. Produce all leases and related documents (e.g., guarantees),
which relate to the premises currently occupied by 8650 Frisco, LLC.

       Request No. 15. Produce all records of financial transactions between 8650
Frisco, LLC and Claudio Nunes.

       Request No. 16. Produce all records of financial transactions between 8650
Frisco, LLC and David Jeiel Rodrigues.

      Request No. 17. Produce all corporate records of 8650 Frisco, LLC.

      Request No. 18. Produce quarterly and annual profit and loss statements for
8650 Frisco, LLC from its creation through the present (update quarterly through trial).

       Request No. 19. Produce quarterly and annual balance sheet statements for 8650
Frisco, LLC from its creation through the present (update quarterly through trial).

       Request No. 20. Produce all communications and correspondence related to any
of the Plaintiffs in this lawsuit.

       Request No. 21. Produce all records of cash receipts and cash deposits for 8650
Frisco, LLC.

       Request No. 22. Produce all records, including invoices, for all equipment and
furniture purchased for use by 8650 Frisco, LLC.

       Request No. 23. Produce all documents which reflect or relate to the application
to the United States Patent and Trademark office for the mark Estilo GAucho Brazilian
Steakhouse.

     Request No. 24. Produce the assignment of ownership rights for the mark Estilo
Gaucho Brazilian Steakhouse to Bahtche, LLC.

       Request No. 25. Produce documents reflecting the exchange of compensation by
and between 8650 Frisco, LLC and Bahtche, LLC, related to the mark Estilo Gaucho
Brazilian Steakhouse.




                                              11

Exhibit V                                                                    App. 376
                           FIRST SET OF INTERROGATORIES

      Interrogatory No. 1. Identify and explain in detail the terms upon which Los
Cucos Mexican Cafe VIII, LLC provided money to 8650 Frisco, LLC.

      Interrogatory No. 2. If you contend that the money provided to 8650 Frisco, LLC
by Los Cucos Mexican Cafe VIII, LLC was a loan, describe in detail the basis of that
contention and terms of the loan.

       Interrogatory No. 3. If you contend that they money provided to 8650 Frisco,
LLC by Los Cucos Mexican Cafe VIII, LLC was an investment, describe in detail the
basis of that contention and terms of the investment.

       Interrogatory No. 4. Identify and describe in detail the equipment and
furnishings provided to 8650 Frisco, LLC by Los Cucos Mexican Cafe, IV.

       Interrogatory No. 5. If you contend that the parties had an agreement as to 8650
Frisco, LLC’s use of the equipment and furniture provided to 8650 Frisco, LLC by Los
Cucos Mexican Cafe, IV, identify and describe in detail the basis of that contention and
terms of the agreement.

      Interrogatory No. 6. Identify and describe in detail the source, date of purchase,
and cost of all equipment and furnishings used at 8650 Frisco, LLC.

       Interrogatory No. 7. Detail the circumstances and terms under which the mark
Estilo Gaucho Brazilian Steakhouse was transferred to Bahtche, LLC.




                                              12

Exhibit V                                                                    App. 377
                        CAUSE NO. 2014-10896
  LOS CUCOS MEXICAN CAFE        § IN THE DISTRICT COURT OF
  VIII, INC., LOS CUCOS MEXICAN §
  CAFE IV, INC., MANUEL         §
  CABRERA, and SERGIO           §
  CABRERA                       §
  PLAINTIFFS,                   §
                                       §
  V.                                   § HARRIS COUNTY, TEXAS
                                       §
  8650 FRISCO, LLC d/b/a ESTILO        §
  GAUCHO BRAZILIAN                     §
  STEAKHOUSE,MANDON~                   §
  LLC,GALOVELHO,LLC,                   §
  BAHTCHE, LLC, CLAUDIO                §
  NUNES and DAVID JEIEL                §
  RODRIGUES                            §
  DEFENDANTS.                          § 133rd JUDICIAL DISTRICT
          DEFENDANT 8650 FRISCO LLC'S RESPONSES TO
          PLAINTIFF'S FIRST REQUEST FOR PRODUCTION

  To: Plaintiffs, Los Cucos Mexican Cafe VIII, Inc., Los Cucos Mexican Cafe IV,
  Inc., Manuel Cabrera, and Sergio Cabrera, by and through their attorney of
  record, Kelly Stephens, P.O. Box 79734, Houston, Texas 77279.

  Defendants, 8650 Frisco, LLC, serves these responses to Plaintiff's request
  for production.

                         RESPONSES TO REQUESTS

  Request No. 1: Produce all documents and records provided to or received
  from 8650 Frisco, LLC's accountants (including, but not limited to Mike
  Verucchi, CPA, Holtmann & Company, LLC, or Hal Holtman, CPA), which
  relate in any way to 8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request seeks
  information that is privileged. See Tex. Occ. Code § 901.457(a); see also
  O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
  foregoing objection, and without waiving the same, documents responsive to




Exhibit V
                                Exhibit 2                            App. 378
  this request are being produced.

  Request No.2: Produce all documents and records in the possession of 8650
  Frisco, LLC's accountants (including, but not limited to Mike Verucchi, CPA,
  Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to
  8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request seeks
  information that is privileged. See Tex. Occ. Code § 901.457(a); see also
  O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
  foregoing objection, and without waiving the same, documents responsive to
  this request are being produced.


  Request No. 3: Produce all financial records of 8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overly
  broad and seeks information that is not relevant to this matter. Defendant
  further objects as this request is not narrowly tailored to a specific time, scope
  or subject matter. Subject to the foregoing objection, and without waiving the
  same, relevant documents responsive to this request will we produced as
  requested.

  Request No.4: Produce all accounting records of 8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request seeks
  information that is privileged. See Tex. Occ. Code § 901.457(a); see also
  O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
  foregoing objection, and without waiving the same, documents responsive to
  this request are being produced.


  Request No. 5: Produce all bank statements of 8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant objects to




Exhibit V                                                                 App. 379
  this request as it is an improper method to request records of a financial
  institution. Tex. Fin. Code § 59.006.

  Request No. 6: Produce all point of sale data and reports related to 8650
  Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects as this information contains information related to customer's accounts
  and disclosure would subject Defendant to liability from customers whose data
  was released.

  Request No.7: Produce all tax records (including all1 099 forms, W-2 forms,
  and K-1 forms) related to 8650 Frisco, LLC.

  RESPONSE: OBJECTION. Defendant objects to this request as it is
  harassing, irrelevant, and confidential by statute. 26 USC §61 03.

  Request No.8: Produce all communications and correspondence with 8650
  Frisco, LLC's accountants (including, but not limited to Mike Verucchi, CPA,
  Holtman & Company, LLC, or Hal Holtman, CPA), which relate in any way to
  8650 Frisco, LLC.

   RESPONSE:
   OBJECTION. Defendant objects on the grounds that this request seeks
 · information that is privileged. See Tex. Occ. Code § 901.457(a); see also
   O'Connor's Texas Rules, "Discovery," ch. 6-B, § 3.7, p. 499. Subject to the
   foregoing objection, without waiving the same, documents responsive to this
   request are being produced.

  Request No. 9: Produce all payroll records for 8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects to this request as it seeks confidential information related to third
  parties and is only being requested for harassment purposes.

  Request No. 10: Produce all records of money received from any Plaintiff in




Exhibit V                                                              App. 380
  this lawsuit.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that documents sought relate
  to information that is already available to Plaintiff and is in plaintiffs
  possession, custody, and control.

  Request No. 11: Produce all records of money paid or distributed to any
  Plaintiff in this lawsuit.

  RESPONSE:
  None.

  Request No. 12: Produce all correspondence and communications with each
  Plaintiff in this lawsuit.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Further, the
  documents requested can be easily obtained by Plaintiff as Plaintiff is aware
  of all correspondence and communication with Defendant. Plaintiffs were
  parties to any communication between Plaintiffs and Defendants. Subject to
  the foregoing objection, and without waiving the same, relevant documents
  responsive to this request will we produced as requested.

  Request No. 13: Produce all agreements, including all drafts of agreements,
  between the Parties, which relate in any way to 8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects as this information is work product and privileged. Furthermore,
  Defendant objects to this request as any alleged agreements are in the
  possession of Plaintiffs and may easily be obtained by Plaintiffs through a
  search of their own records. Subject to the foregoing objection, and without
  waiving the same, relevant documents responsive to this request will we
  produced as requested.


  Request No. 14: Produce all leases and related documents (e.g.,




Exhibit V                                                             App. 381
  guarantees), which relate to the premises currently occupied by 8650 Frisco,
  LLC.

  RESPONSE:
  Subject to the foregoing objection, and without waiving the same, relevant
  documents responsive to this request will we produced as requested.


  Request No. 15: Produce all records of financial transactions between 8650
  Frisco, LLC and Claudio Nunes.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects to this request as it is not narrowly tailored and fails to define the
  request in terms of scope, subject matter, or time.

  Request No. 16: Produce all records of financial transactions between 8650
  Frisco, LLC and David Jeiel Rodrigues.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects to this request as it is not narrowly tailored and fails to define the
  request in terms of scope, subject matter, or time.

  Request No. 17: Produce all corporate records of 8650 Frisco, LLC.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects to this request as it is confidential. Subject to the foregoing objection,
  and without waiving the same, relevant documents responsive to this request
  will we produced as requested.


 Request No. 18: Produce quarterly and annual profit and loss statements for
 8650 Frisco, LLC from its creation through the present (update quarterly
 through trial).




Exhibit V                                                                 App. 382
  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant objects to
  this request as it exceeds duty imposed on Defendant under Tex. R. Civ. P.
  196.1 & 192.3.

  Request No.19: Produce quarterly and annual balance sheet statements for
  8650 Frisco, LLC from its creation through the present (update quarterly
  through trial).

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant objects to
  this request as it exceeds duty imposed on Defendant under Tex. R. Civ. P.
  196.1 & 192.3.

  Request No. 20: Produce all communications and correspondence related to
  any of the Plaintiffs in this lawsuit.

  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is duplicative
  of request for production no. 12. Defendant further objects as this request is
  vague, overly burdensome, lacks specificity, fails to limit the request based
  upon time, scope, or subject matter. Defendant further objects as this request
  will not result in discoverable information. Defendant further objects as this
  request seeks to invade the attorney client privilege.

  Request No. 21: Produce all records of cash receipts and cash deposits for
  8650 Frisco, LLC.

 RESPONSE:
 OBJECTION. Defendant objects on the grounds that this request is overbroad
 and seeks information that is not relevant to this matter. Defendant further
 objects as this request is overly burdensome, harassing and will not result in
 production of discoverable information. Subject to the foregoing objection, and
 without waiving the same, relevant documents responsive to this request will
 we produced as requested.

 Request No. 22: Produce all records, including invoices, for all equipment
 and furniture purchased for use by 8650 Frisco, LLC.




Exhibit V                                                               App. 383
  RESPONSE:
  OBJECTION. Defendant objects on the grounds that this request is overbroad
  and seeks information that is not relevant to this matter. Defendant further
  objects to this request as it is vague, lacks specificity, and is not narrowly
  tailored by time, scope or subject matter. Defendant further objects to this
  request as it is overly burdensome to require Defendant to scour its records
  for every purchase of nuts, bolts, bottles, cans, and bottle openers that it may
  have acquired during the operation of the restaurant. Subject to the foregoing
  objection, and without waiving the same, relevant documents responsive to
  this request will we produced as requested.

  Request No. 23: Produce all documents which reflect or relate to the
  application to the United States Patent and Trademark office for the mark
  Estilo Gaucho Brazilian Steakhouse.

  RESPONSE:
  None.

  Request No. 24: Produce the assignment of ownership rights for the mark
  Estilo Gaucho Brazilian Steakhouse to Bahtche, LLC.

  RESPONSE:
  None.

  Request No. 25: Produce all documents reflecting the exchange of
  compensation by and between 8650 Frisco, LLC and Bahtche, LLC, related
  to the mark Estilo Gaucho Brazilian Steakhouse.

  RESPONSE:
  None.


  Respectfully submitted, MOSSER LAW PLLC,


  By· lsi Nicholas D Masser
  James C. Mosser
  Texas Bar No. 00789784
  Nicholas D. Mosser




Exhibit V                                                               App. 384
  Texas Bar No. 24075405
  Benjamin Casey
  Texas Bar No. 24087267
  17110 Dallas Parkway Suite 290
  Dallas, TX 75248
  Tel. (972) 733-3223
  Fax. (972) 267-5072
  courtdocuments@mosserlaw.com
  Lawyers for Defendants

                          CERTIFICATE OF SERVICE

  I certify that on May 14, 2014, a true and correct copy of this document was
  served to the following pursuant to Texas Rules of Civil Procedure 21 & 21 (a).

  Kelly Stephens
  P.O. Box 79734
  Houston, Texas 77279
  Telephone: 1-281-394-3287
  Facsimile: 1-832-476-5460

  Is/ Nicholas D. Mosser
  By: Nicholas D. Mosser




Exhibit V                                                               App. 385
                                       MOTION TO COMPEL
                                                              1

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

 3

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

11   _______________________________________________________

12
                           MOTION TO TRANSFER
13   _______________________________________________________

14

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

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

17   numbered cause before the Honorable JACLANEL McFARLAND,

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

19          Proceedings reported by computerized stenotype

20   machine.

21

22

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

                            DARLENE STEIN
Exhibit V
                            Exhibit 3                        App. 386
                                       MOTION TO COMPEL
                                                           2

 1                         APPEARANCES

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

 7
     Mr. Nicholas D. Mosser
 8   SBN 24075405
     Mr. James Mosser
 9   SBN 00789784
     17110 Dallas Parkway, Suite 290
10   Dallas, Texas97 75248
     Telephone:) (972)733-3223
11   Telephone:   (972)267-5072
     Attorney for Defendants
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                          DARLENE STEIN
Exhibit V                                                 App. 387
                                     MOTION TO COMPEL
                                                          3

 1                      CHRONOLOGICAL INDEX

 2   June 23, 2014

 3                                                PAGE

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

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

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

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

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

 9

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                          DARLENE STEIN
Exhibit V                                                App. 388
                                            MOTION TO COMPEL
                                                                   4

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

 2                          June 23, 2014

 3

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

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

 6   represent, please.

 7                    MR. MEADE:    Andrew Meade and Sam Haran for

 8   the Plaintiffs.

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

10   who you are and who you represent, please.

11                    MR. MOSSER:   I'm sorry?

12                    THE COURT:    Announce who you are and who

13   you represent.

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

15   Mosser, Mosser Law Firm, PLLC, appearing telephonically

16   on behalf of all Defendants.

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

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

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

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

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

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

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

24   in the actual written motions.

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

                            DARLENE STEIN
Exhibit V                                                      App. 389
                                           MOTION TO COMPEL
                                                                 5

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

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

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

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

 5   easier to hear.

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

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

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

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

10   we can do.

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

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

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

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

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

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

17   wherever I was going.

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

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

20   Fridays and Mondays to make that more convenient.

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

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

23                   MR. MEADE:    Mondays.

24                   And so, the situation that we've got

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

                             DARLENE STEIN
Exhibit V                                                       App. 390
                                         MOTION TO COMPEL
                                                               6

 1   noticed depositions for early May of the Defendants, that

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

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

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

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

 6   occur.

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

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

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

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

11   his clients because -- and they subsequently filed a

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

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

14   depositions.    And there is nobody else within his

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

16   defend a deposition.

17                    He then went and set his Motion to Transfer

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

19   that conflict with a trial that I have in Judge

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

21   offered dates in August.

22                    And we have run into a problem now, which

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

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

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

                            DARLENE STEIN
Exhibit V                                                     App. 391
                                       MOTION TO COMPEL
                                                               7

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

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

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

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

 5   Motion to Transfer Venue is pending.

 6                   They have taken the position and even set

 7   for today and then withdrew a Motion to Stay all

 8   proceedings while they have the opportunity to have that

 9   Motion to Transfer Venue heard.

10                   We're going to have to take these

11   depositions before the Motion to Transfer Venue hearing.

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

13   to Transfer Venue hearing pushed back till that can

14   happen.

15                   But we also need Mr. Mosser or his clients

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

17   took Certificates of Nonappearance on all six

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

19   cost on each of those.

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

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

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

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

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

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

                           DARLENE STEIN
Exhibit V                                                    App. 392
                                     MOTION TO COMPEL
                                                             8

 1   accountant to produce the records from New Braunfels, and

 2   he did produce the records to us.

 3                  But we have also asked for certain

 4   financial records, including tax records and other

 5   financial documents from the Defendants themselves; and

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

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

 8   although that's not part of today.

 9                  The -- the other issue that is part of

10   today is their responses and objections to our requests

11   for production, which deal with the financial and tax

12   records.

13                  Starting with the tax records, there are

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

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

16   First of all, the statute allows it.

17                  Second, we need to prepare our own tax

18   returns.

19                  Third, how they chose to characterize our

20   capital contributions, the proportion of what is

21   characterized as a loan and capital contribution and all

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

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

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

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

                          DARLENE STEIN
Exhibit V                                                 App. 393
                                      MOTION TO COMPEL
                                                             9

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

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

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

 4   records.

 5                   The other financial records, which include

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

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

 8   bank account statements are going to be relevant to

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

10   limited liability company act, under the partners' oral

11   agreement, and under the written agreements that were

12   exchanged, we would be entitled to distributions of

13   distributable cash.

14                   None have been made to us.   We believe some

15   have been made to the Defendants, substantial

16   distributions, and that there is distributable cash.    We

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

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

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

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

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

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

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

24   was made again in response to requests for production

25   after the Court had already ruled on the objection in

                           DARLENE STEIN
Exhibit V                                                   App. 394
                                        MOTION TO COMPEL
                                                             10

 1   relation to the accountant.

 2                   They made other objections; for example,

 3   objecting that the Texas Finance Code provides the

 4   exclusive means to get bank account statements, even bank

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

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

 7   the bank statements separately.    But that doesn't

 8   alleviate the obligation of a party to produce those bank

 9   statements.

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

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

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

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

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

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

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

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

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

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

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

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

22   probably having to move it to compel.

23                   When these depositions do occur, I suspect

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

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

                            DARLENE STEIN
Exhibit V                                                    App. 395
                                         MOTION TO COMPEL
                                                              11

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

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

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

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

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

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

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

 8   is one suggestion to do that.

 9                    And I'll let Mr. Mosser respond.

10                    THE COURT:    Mr. Mosser?

11                    MR. MOSSER:   Yes, ma'am.

12                    THE COURT:    You may respond.

13                    Hello?

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

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

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

17   will.    Thank you.

18                    May it please the Court?    Let me go

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

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

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

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

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

24   pick up the grills.

25                    So, we told them if they leave the grills

                               DARLENE STEIN
Exhibit V                                                     App. 396
                                      MOTION TO COMPEL
                                                           12

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

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

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

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

 5   outrageous that he would say those kinds of things.

 6                   As for bank accounts, the Finance Code does

 7   provide the method by which he can obtain the bank

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

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

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

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

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

13   he had related to anything with my clients.

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

15   Temporary Injunction hearing, Mr. Holtman went and

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

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

18   from counsel this morning, delivered all the documents he

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

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

21   income statements, all the financial statements,

22   everything related to the business until Mr. Holtman was

23   fired.

24                   Now, the Court ordered that.   Mr. Holtman

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

                           DARLENE STEIN
Exhibit V                                                  App. 397
                                       MOTION TO COMPEL
                                                             13

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

 2   manner that have already been produced by the accountant

 3   in this case.

 4                    And, secondly, those documents were

 5   produced to opposing counsel who has yet to this day

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

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

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

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

10                    Going back to the top of the complaint from

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

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

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

14   immediately notified, upon determination that I was

15   immobile, that this deposition had to be reset or

16   postponed.

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

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

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

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

21   motions claiming that they've had a conference with

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

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

24   motions and then claimed that they had a conference after

25   they filed the motion.

                            DARLENE STEIN
Exhibit V                                                    App. 398
                                       MOTION TO COMPEL
                                                            14

 1                    As for offering dates, we offer to set a

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

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

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

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

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

 7   the special setting in that case because of my sacral

 8   iliac sprain.

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

10   when I had my quadruple bypass surgery, opposing counsel

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

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

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

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

15   should take depositions to get proof for the Motion to

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

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

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

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

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

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

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

23   will be happy to defend that issue.

24                    As for costs, counsel fails to properly

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

                            DARLENE STEIN
Exhibit V                                                   App. 399
                                      MOTION TO COMPEL
                                                            15

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

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

 3   like me sitting in his conference room, taking the

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

 5   with it.

 6                   So, he has all of the financial records we

 7   believe that exist, delivered by Holtman over our

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

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

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

11   from him.

12                   And as for tax records from the LLC,

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

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

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

16   Temporary Injunction hearing.

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

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

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

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

21   is an abuse of discretion requiring the disclosure of

22   Federal income tax returns if other documents can provide

23   the information necessary.

24                   But in order to even search out and get

25   that information, opposing counsel is required to provide

                            DARLENE STEIN
Exhibit V                                                   App. 400
                                            MOTION TO COMPEL
                                                               16

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

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

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

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

 5   other intrusive and burdensome matters are necessary for

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

 7   total.

 8                    Thank you.

 9                    THE COURT:    When do you want to take the

10   depositions?

11                    MR. MEADE:    Well --

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

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

14   opposing counsel when he wants to take the depositions.

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

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

17   the Motion to Transfer Venue is heard.

18                    THE COURT:    Okay.

19                    MR. MEADE:    The more complex answer is

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

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

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

23   breach of contract case.

24                    So, following that week, I only have one

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

                              DARLENE STEIN
Exhibit V                                                      App. 401
                                            MOTION TO COMPEL
                                                                 17

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

 2   wide open to -- to take these depositions.

 3                    THE COURT:    Okay.   Counsel, you heard

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

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

 6                    MR. MEADE:    28th.

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

 8   your people for depositions.

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

10   now, Judge.

11                    THE COURT:    Okay.

12                    MR. MOSSER:   I would recommend August 4th

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

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

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

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

17   exactly the same time, which I would discourage that

18   concept as appropriate.

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

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

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

22   good with me, Judge.

23                    MR. MEADE:    If Mr. Mosser would cooperate

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

25   individual -- two individuals and four corporate

                            DARLENE STEIN
Exhibit V                                                        App. 402
                                           MOTION TO COMPEL
                                                              18

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

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

 3   same time or concurrently with each other.      But

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

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

 6   to do it.

 7                   If he will identify who will be the

 8   corporate representatives for those entities, I will

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

10   timewise with one other another.

11                   MR. MOSSER:   As you previously noticed,

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

13   the deponent.

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

15                   MR. MOSSER:   Yes.

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

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

18                   MR. MOSSER:   Thank you.

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

20   the 5th of August?

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

22                   THE COURT:    Oh, both.

23                   MR. MEADE:    Yeah.

24                   THE COURT:    Okay.   All right.   The

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

                           DARLENE STEIN
Exhibit V                                                     App. 403
                                            MOTION TO COMPEL
                                                               19

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

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

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

 4   going to be?

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

 6   have an office here in Houston --

 7                    THE COURT:    Okay.

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

 9   at my offices here in Houston, Your Honor.

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

11   okay with you, Mr. Mosser?

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

13   with me.

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

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

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

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

18   that under advisement.

19                    What else was there?

20                    MR. MEADE:    The objections, which I think

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

22   Compel the responses to discovery that ask for a

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

24   information, including bank statements and -- and tax

25   returns.

                            DARLENE STEIN
Exhibit V                                                      App. 404
                                          MOTION TO COMPEL
                                                                 20

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

 2   client have the bank statements?

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

 4                    THE COURT:    Does your client have the bank

 5   statements?

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

 7   and opposing counsel has collected everything Holtman

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

 9   counsel to deliver those documents that he got from the

10   third-party witness Holtman to us.

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

12   that wasn't my question.

13                    MR. MOSSER:   I understand.

14                    THE COURT:    My question is:   Does your

15   client have them?

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

17   Holtman has them all.

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

19   copy?

20                    MR. MOSSER:   Nobody sends out copies of

21   bank statements any more, Judge.

22                    THE COURT:    Sure they do.   I get them

23   every month.

24                    MR. MOSSER:   I appreciate that, Your

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

                             DARLENE STEIN
Exhibit V                                                        App. 405
                                           MOTION TO COMPEL
                                                              21

 1   do not get bank statement in paper form.

 2                   THE COURT:    Well, do they get them

 3   electronically where they can print them out?

 4                   MR. MOSSER:   My understanding, Your Honor,

 5   is that Holtman has all the bank statements.

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

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

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

 9                   MR. MOSSER:   I haven't made that

10   particular inquiry.

11                   THE COURT:    Yeah.

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

13   and the accountant.

14                   THE COURT:    Well, my guess is your client

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

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

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

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

19   print it out.

20                   MR. MOSSER:   I understand what the Court

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

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

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

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

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

                            DARLENE STEIN
Exhibit V                                                     App. 406
                                          MOTION TO COMPEL
                                                             22

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

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

 3   new accountant located up in Dallas and identified him as

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

 5   send all of the information.

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

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

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

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

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

11   of the information, it wouldn't alleviate their

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

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

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

15   documents.

16                  But there are certainly post termination of

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

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

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

20   asking for.

21                  THE COURT:    Okay.   So --

22                  MR. MEADE:    Their current accountant has

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

24                  THE COURT:    All right.

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

                          DARLENE STEIN
Exhibit V                                                    App. 407
                                           MOTION TO COMPEL
                                                               23

 1   that.

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

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

 4   available to you.

 5                   MR. MOSSER:   From the time that Holtman

 6   was terminated?   Because they already have everything

 7   else.

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

 9   requested.

10                   MR. MOSSER:   And will you order them to

11   deliver us what Holtman has?

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

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

14   you send me a letter asking for it --

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

16   it to him.

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

18   Honor.

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

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

21   send you copies of it.

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

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

24   download it from your computer today.

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

                           DARLENE STEIN
Exhibit V                                                      App. 408
                                            MOTION TO COMPEL
                                                               24

 1                    MR. MOSSER:   Which kind of link?

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

 3   head.

 4                    MR. MEADE:    I will suggest a couple of

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

 6   Mr. Mosser.

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

 8   you.

 9                    MR. MEADE:    You can choose the most

10   convenient means to you.

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

12   at the interrogatories, your objections are overruled.

13                    What else have we got?

14                    MR. MEADE:    The requests for production

15   objections that were --

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

17   also.

18                    Anything else?

19                    MR. MEADE:    And -- nothing else unless

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

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

22   at this --

23                    THE COURT:    I'm not.

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

25   So, I won't --

                            DARLENE STEIN
Exhibit V                                                      App. 409
                                           Motion to Compel
                                                              25

 1                   THE COURT:    And we will reset --

 2                   MR. MEADE:    -- belabor the point.

 3                   THE COURT:    -- the motion for change of

 4   venue until after the deposition.

 5                   MR. MEADE:    Thank you, Your Honor.

 6   Nothing else today.

 7                   THE COURT:    Anything else?

 8                   MR. MOSSER:   No, Your Honor.

 9                   THE COURT:    Counsel, I hope you feel

10   better.   I know --

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

12                   THE COURT:    I know how it feels to get

13   older, but...

14                   MR. MOSSER:   I appreciate it, Judge.

15                   THE COURT:    Okay.   Thank you.

16                   MR. MOSSER:   Yes, ma'am.

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

18   Your Honor.

19                   THE COURT:    Thank you.

20                   (Proceedings concluded.)

21

22

23

24

25

                           DARLENE STEIN
Exhibit V                                                     App. 410
                                       Motion to Compel
                                                            26

 1   STATE OF TEXAS

 2   COUNTY OF HARRIS

 3          I, DARLENE STEIN, Official Court Reporter in and

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

 5   Texas, do hereby certify that the above and foregoing

 6   contains a true and correct transcription of all

 7   portions of evidence and other proceedings requested

 8   in writing by counsel for the parties to be included

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

10   above-styled and numbered cause, all of which

11   occurred in open court or in chambers and were

12   reported by me.

13          I further certify that this Reporter's Record of

14   the proceedings truly and correctly reflects the

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

16          I further certify that the total cost for the

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

18   was paid by Mr. Andrew Meade.

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

25

                            DARLENE STEIN
Exhibit V                                                   App. 411
                                                                                             611112014 2:07:32 PM
                                                                                             Chris Daniel -District Clerk
                                                                                             Harris County
                                                                                             Envelope No: 1510270
                                                                                             By: ARRIAGA, AMANDA R

                                                Cause No. 2014-10896

      LOS CUCOS MEXICAN CAFE VIII,
      fNC.; LOS CUCOS MEXICAN CAFE IV,                      §
                                                             §                 IN THE DISTRICT COURT OF                f2
      fNC.; MANUEL CABRERA; AND
      SERGIO CABRERA,
                                                            §
                                                            §
                                                                                                             1 (lfA.D)(
                                                                                                               STP~)'
                                                            §
                                 Plaintiffs,                §
                                                            §
      v.                                                    §
                                                            §
      8650 FRISCO, LLC D/B/A ESTILO                         §
      GAUCHO BRAZILIAN STEAKHOUSE;                          §
      MANDONA, LLC; GALOVELHO, LLC;                         §
      BAHTCHE, LLC; CLAUDIO NUNES; and                      §
      DAVID JEIEL RODRIGUES,                                §
                                                            §
                                 Defendants.                §                     133rd JUDICIAL DISTRICT



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

                                   PLAINTIFFS'     THII~>TION TO COMPEL
                                                      0
              The Court, having considered !®fendants' Motion to Stay All Matters and Plaintiffs'
                                               oQ
      Third Motion to Compel and         th~tive responses, arguments of counsel, and evidence, has
      determined that Defendants' ~on should be and is hereby DENIED and that Plaintiffs' motion

      should be and is hereby     G~ED. Specifically:
              The Court   DE~gefendants' request to stay all matters.
  .           The Cou!J    ~~y         OVERRULES Defendants' objections to Plaintiffs' Requests for

      Production No,2, 3, 4, 5, 7, and 8. IT IS ORDERED that Defendants shall produce all
                    ~
      document~onsive to Requests for             Production Nos. 1, 2, 3, 4, 5, 7, and 8 within 24 hours of

      the entry of this order.

              Th~om t     Fllq!JS that Defeudams' co,msernasahused the            discovery_pr~'Sis_fiil:g­

   l'(oM:;it;A-';-enr-:ln~ermmea          that the followillg sanctions are   appropriate~   satisfy the legitimate-




Exhibit V
                                                  Exhibit 4                                               App. 412
~I 1 A     purposes of discovery sanctions, and are nenher more              1101   less stringent than nece:.:.ary to-.
11\j-/ '-- aceef!!plishjtT7}Se   purpes&.-

                   AcsorQ_ingly, IT IS ORDERED               that all---eXpenses of dtscovery assocmtecrwith      th~

           ooderlying motiotnl1101fie deposition of each of the Defenda"""fitrin aecordance with this oreer an:~

                                                         e   MOSSER l.AW fiRM       shall pay   to~~
           $                         within I 0 days of the sig11iflg ei.th.iuJrder.~ (J
                   ·rr- IS   FURTHER ORDERED that the fullo"i"g                fucts a~ABL!SHBD               fi5r1rtl---...

         I'm poses in thiS hbgatwn: that Defendants havo <on"oted to ven;~arris Coun~s. -
                   IT IS FURTHER ORDERED that failure to         compl;~Q this Order may result in the
           further imposition of sanctions or a holding of contempt, ~hable by fin~ or imprisonment or                  -

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

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


                                              0
                                                 ~
                                             ~~
                                      ug
                                    ~
                                  0~

                         ~g
                             ~
                     ~




     Exhibit V                                                                                               App. 413
                                                                               3/30/2015 4 07 31 PM
                                                                               Chr1s Damel - D1stnct Clerk
                                                                               Hams County
                                                                               Envelope No 4698208
                                                                               By GENTRY, EUNIECY M
                                                                               Fsled 3/30/2015 4 07 31 PM
                                           CAUSE NO 2014-10896

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

                                                                                      ~     jj)x
     CAFE IV, INC , MANUEL                            §
     CABRERA, and SERGIO                              §
     CABRERA,
                Plflmtiffs
                                                      §
                                                      ~
                                                      ~
                                                                                   * aPtPK
     v                                                §
                                                      §                     ~=~r#i
                                                             HARRIS COUN 1 ~XAS
     8650 FRISCO, LLC D/B/A ESTILO                    ~
     GAUCHO BRAZILIAN                                 §                     ~
     STEAKHOUSE, MANDONA, LLC,
     GALOVELHO, LLC, BAH1 CIIE,
     LLC, CLAUDIO NUNES, and
                                                      §
                                                      §
                                                      §
                                                                     #
                                                                    Q~
     DAVJD JEIEL RODRIGUES,                           §
                    DefendalltY                       §      133r~DICIAL DISTRICT
                     OROER GRANTING IN J>ART A                      INGINPART
                 PLAINTIFFS' MOTION TO ENFOR
                                                      0~
            On thts dav the Court came to constder pJ.il~~ffs Sec.ond Mohon to Enforce the Court'&
                      -                            ~~
     Order and for Sandton~ (lhe "Mot.Ion") ~Y cons1denng lhe facts, law, and argument of

     <..ounscl, the Court has dec1ded to grant ~~otlontn part and deny the Mohon m pmt

            Defendant!:. are ordered to   ~e all documents tdenttfied m the CoUtt's July 28, 2014
     Order on   Detendant~   MottonJRGay All Mattml> and Plamhffs' Il11rd Matton to Compel lhts

    p10dm.tton must be   made~lo p m            on Wednesday, Apttl 1, 2015 to both Sam Haten and

    Kelly Stephen::,    ~U
                       oW
            Plmnt1f~~Dcfendants' request; ~or sancuons dlC dcmed

            s:~J~ilieL-day or~                                     ~~




Exhibit V
                                             Exhibit 5                                      App. 414
            EXHIBIT 6


FILED UNDER SEAL



            EXHIBIT 6


Exhibit V               App. 415
                                                                                4/24/2014 2:56:55 PM
                                                                                Chris Daniel - District Clerk
                                                                                Harris County
                                                                                Envelope No: 1081864
                                                                                By: PALMER, EVELYN J

                                          CAUSE NO. 2014-10896

   LOS CUCOS MEXICAN CAFE VIII,
   INC.; LOS CUCOS MEXICAN
                                                     §
                                                     §
                                                             IN THE DISTRICT COURT OF             f3
   CAFE IV, INC.; MANUEL                             §
   CABRERA; and SERGIO                               §                                   fJ £AirX-
   CABRERA,                                          §
              Plaintiffs                             §

   v.

   8650 FRISCO, LLC D/B/A ESTILO
                                                     §
                                                     §
                                                     §
                                                     §
                                                             HARRISCOU~TEXAS
                                                                    ~
                                                                                ~ *
   GAUCHO BRAZILIAN                                  §                   0~
   STEAKHOUSE; MANDONA, LLC;
   GALOVELHO, LLC; BAHTCHE,
                                                     §
                                                     §
                                                                     o{f?~
   LLC; CLAUDIO NUNES; and
   DAVID JEIEL RODRIGUES,
                                                     §
                                                     §        o@j   ~
              Defendants                             §       1~ .nJDICIAL DISTRICT
                                                              (')


                                                  0RD~
               ON PLAINTIFFS' EMERGENCY Mo~"-ro COMPEL AND FOR SANCTIONS
                                                ,Q
          The Court, having considered         ~intiffs'   Emergency Motion to Compel and for
                                            ~
   Sanctions, the response, the     argu~ of counsel,      and the evidence, has determined that the

   motion is meritorious and    shoul~and is hereby GRANTED in its entirety. Specifically:
          The custodian of    rec~~f Holtman & Company, LLC is hereby ORDERED to appear
                                o~
   before a notary public   f~position as subpoenaed by Plaintiffs on May 26,2014, at ~0:00a.m.
                            ~
  at the office of      Gu!J:~am   Legal Group, LLC, 16607 Blanco Road, Suite 1307, SarJ Antonio,

  Texas 78232.
                     (/~~
                     ~">
                   ©5
          Th~dian of records ofHoltman & Company, LLC is hereby ORDERED to preserve
  all documents and communications related to 8650 Frisco, LLC, including but not limited to

  those records requested by Plaintiffs, in its possession, custody, or control, during the pendency

  of this litigation.




Exhibit V
                                            Exhibit 7                                        App. 416
           The Court FINDS that Defendants' counsel has abused the discovery process in resisting

   discovery and has determined that the following sanctions are appropriate, that the following

   sanctions satisfy the legitimate purposes of discovery sanctions, and that the following sanctions

   are neither more nor less stringent than necessary to accomplish those purposes.

                                                 that all expenses of discovery    a~ated
                                                                                ~([!jj;
   underlying motio and the production o           cuments by and from Holt~ & Comp

   includin                                                fees, and the   b~re char
                                                                    ~nselr-------
         osser, individually. Nicholas D. Mosser shall pay to Plain ·

   within 10 days ofthe signing ofthis order.                    ~Q~
     ~                                                         "~
               IS FURTHER ORDERED that the follow~~acts

                                                         ~«?Qf
                          That 8650 Frisco, LLC ~ genera
                          existence.          ~

                  2.      That Plaintiffs are   e~Q
                                                ©)
                                                    to one-

                  3.      T t Plaintiffs a~entitled to full repayment of the startup funds t y
                          prov ed (in"<,~~ount to b proven at trial) with interest at the high st
                          lawful te ~                                                  '
                                   ~
                  4.      That P~h        are ent' led to reimbursement for wear and ear an
                          depr~dh oft eq pment they supplied to 8650 Frisco (in en a un
                          touoven at trial                                             '

                 FURTu;s._~ ORDE           that Defendants are P           ITED from supp<.>rting a y
                         "W
                       "~ncludi




Exhibit V                                                                                    App. 417
   furth    imposition of sanctions r a holding of conte

    oth.

   DATED:~~                l1 ~!lf
                       r (




Exhibit V                                                  App. 418
                                                                                 I I IUI£oVI ......... VVt••hl r1w1

                                                                                 Chrrs Daniel • District Clerk
                                                                                 Harris County
                                                                                 Envelope No: 1848413
                                                                                 By: ARRIAGA, AMANDA R

                                          CAUSE NO. 2014-10896

     LOS CUCOS MEXICAN CAFE VIII,
     INC.; LOS CUCOS MEXICAN
                                                      §
                                                      §
                                                             IN THE DISTRICT COURT (                                  Ide
     CAFE IV, INC.; MANUEL                            §
     CABRERA; and SERGIO                              §                                                            tiUDE'f
     CABRERA,                                         §
                Plaintiffs                            §
                                                      §                                                       <


                                                                                                         ~
     v.
                •                     •
                                                      §
                                                      §      HARRIS COUNTY,        TEXA:~
                                                                                                    I
                                                                                                                 f                     ~
     8650 FRISCO, LLC D/B/A ESTILO                    §                                                               1-.
                                                                                                             X        c       !?.n ~
     GAUCHO BRAZILIAN                                 §                                                      .,
                                                                                                             .,~      I       Ul:T
                                                                                                                              ... "1
                                                                                                                              "1-·~
     STEAKHOUSE; MANDONA, LLC;                        §
                                                                                                   ,..
                                                                                                   0                          -·Ill
                                                                                                             0
                                                                                                             0        0')     !l.o
     GALOVELHO, LLC; BAHTCHE,                         §                                             c        c
                                                                                                                              or.~~
     LLC; CLAUDIO NUNES; and
                                                                                                   :<         ...
                                                                                                             :I        I'.)   - :I
                                                                                                                              (I)-·
                                                      §                                                      ':C       _...
                                                                                                                       c:;l


     DAVID JEIEL RODRIGUES,                           §                                                       .., ""'"
                                                                                                              -1
                                                                                                                              .,(I)
                                                                                                                              7':-
                                                                                                                                       t:;
                Defendants                            §      133rd JUDICIAL DISTRIC1                           .
                                                                                                              )(




                ORDER GRANTING PLAINTIFFS' MOTION TO QUASH AND
          DENYING DEFENDANTS' MOTION TO QUASH DEPOSITION SUBPOENA OF
                   MIKE VERUCCHI AND FOR A PROTECTIVE ORDER

              On th1s day the Court came to consider Defendants' Motion to Quash Deposition

     Subpoena of Mike Verucclu and for a Protective Order (the "Motion to Quas1").                                  After
                                                                                               I




     considermg the facts, law, and argument of counsel, the Court has decided to DENY,the MotiOn

     to Quash       The Subpoena contained in Exhibit A to the Motion (the "Subpoena) i,s valid and

     enforceable.

              The Court further finds that Defendants filed the Mohon without adequately considering

~    the contents of Exhibit A thereto The Court further finds that Defendants refused to Withdraw
0


     the Mohon once the relevant contents were pointed out.        The Court further finds that the

     Defendants have advanced frivolous arguments without basis m fact or law in support of the

     MotiOn     The Court further finds that this misconduct is part of a larger pattern      <~,f improper
     objections, motions to quash, and mvocations of privilege.




    Exhibit V
                                             Exhibit 8                                                   App. 419
 0l
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  0
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    I
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1:--
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  <1.l
ll=i                  2
"-E<1.l
C)
          Exhibit V       App. 420
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this July 29. 2014


     Certified Document Number:        61747433 Total Pages: 2




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com


       Exhibit V                                                                              App. 421
HAW ASH MEADE
HAWASH MEADE GASTON NEESE & CICACK LLP
                                                                                          Samuel B. Haren
                                                                                       sharen@hmgllp.com
                                                                                      713-658-9001 (phone)
                                                                                         713-658-9011 (fax)


                                             April2, 2015

Via Facsimile:
(469) 626-1073
Mr. James C. Mosser
Mr. Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248

       Re:     Cause No. 2014-10896, Los Cucos Mexican Cafe VIII, Inc. et al. v. 8650 Frisco, LLC et
               al. in the 133rd Judicial District Court ofHanis County, Texas

Messrs. Mosser and Mosser:

       I attempted to send the attached to the fax number in the signature block of your most recent
pleading. According to our fax service, it did not go through. Hopefully it will fare better with the new
fax number in your letterhe~d.




                         2118 Smith Street 1 Houston, Texas 77002
                 Main Phone: (713) 658-9001 1 Main Facsimile: (713) 658-9011

   Exhibit V
                                           Exhibit 9                                     App. 422
                                      www.hmgllp.com
HAWASHMEADE
HAWASH MEADE GASTON NEESE & CICACK LLP
                                                                                        Samuel B. Haren
                                                                                     sharen@hmgllp.com
                                                                                    713-658-9001 (phone)
                                                                                       713-658-9011 (fax)


                                            April1, 2015

Via Facsimile:
(972) 267-5072
Mr. James C. Mosser
Mr. Nicholas D. Mosser
Mosser Law PLLC
17110 Dallas Parkway, Suite 290
Dallas, Texas 75248

       Re:     Cause No. 2014-10896, Los Cucos Mexican Cafe VIII, Inc. et al. v. 8650 Frisco, LLC et
               al. in the 133rd Judicial District Court of Harris County, Texas

Messrs. Mosser and Mosser:

       On three separate occasions, the Court has ordered you to produce the following documents:

   •   all documents and records provided to or received from 8650 Frisco, LLC's accountants
       (including, but not limited to Mike Verucchi, CPA, Holtman & Company, LLC, or Hal Holtman,
       CPA), which relate in any way to 8650 Frisco, LLC;
   •   all documents and records in the possession of 8650 Frisco, LLC's accountants (including, but
       not limited to Mike Verucchi, CPA, Holtman & Company, LLC, or Hal Holtman, CPA), which
       relate in any way to 8650 Frisco, LLC;
   •   all financial records of 8650 Frisco, LLC;
   •   all accounting records of 8650 Frisco, LLC;
   •   all bank statements of 8650 Frisco, LLC;
   •   all tax records (including all 1099 forms, W-2 forms, and K-1 forms) related to 8650 Frisco,
       LLC; and
   •   all communications and correspondence with 8650 Frisco, LLC's accountants (including, but not
       limited to Mike Verucchi, CPA, Holtman & Company, LLC, or Hal Holtman, CPA), which
       relate in any way to 8650 Frisco, LLC.

       Your production of March 31, 2015 does not comply with the Court's three orders. If we do not
receive all responsive documents by 4:00p.m. on April 2, 2015, we will be forced to ask the Court to
hold you and your clients in contempt for continuing to ignore the Court's orders.




                                               Samuel B. Haren

                         2118 Smith Street 1 Houston, Texas 77002
                 Main Phone: (713) 658-9001 1 Main Facsimile: (713) 658-9011
                                      www.hmgllp.com
   Exhibit V                                                                           App. 423
                                                                                                                                                                           P.
                                Communication Result Report ( Apr. 2. 2015                                                             8:47AM )
                      * * *                                                                                                                              1)
                                                                                                                                                              * * *
                                                                                                                                                         2)


Date/Time : Apr. 2. 2015        8:46AM
Fi 1e                                                                                                                                                                    Page
 No. Mode                        Destination                                                                         pg (s)                         Result               Not Sent

0846 Memory TX                   4696261073                                                                          P.        2                    OK




       Reason    for error
            E.   1) Hang up     or   line      fai                                             E. 2)       Busy
            E.   3)   No   answer                                                              E. 4)       No facsimile connect ion
            E.   5)   Exceeded max.       E-mai            s i z e                             E. 6)       Destination does not support                               IP-Fax




                                                                                                                               Samuel B. J-b1tet1
                                      HAWASHMEADE
                                      HAWAEH ME'AbEGASTON NEES~& CICACK LLP
                                                                                                                             sharen@:hmo!lp.com
                                                                                                                            713-G56-$r001 (phMe}
                                                                                                                               713-658.0011 (fax)

                                                                                   April2,2015

                                      VraFac.rimi/e:
                                      ({6'J) 626-1071
                                      1\fr. Jnmes C. Mosser
                                      1\fr. Nicholas D. Mosser
                                      Mosser Lnw PLLC
                                      17!10DallasParkway, Suito290
                                     Dallas, Texos 75248

                                             Re:    Cause No. 2014-10896, Los Cucos Me>.ican Cofe VITI. Inc. et al. v. 8650 Fri.co. LLC et
                                                    al. in 1he 133rd Judicial District Court ofHIIIris County, Texns

                                     1\{es.sr-s. Mosser and Mosser:

                                            1 attempted to send the attached to tl~ fax number in the signature block of your most recen1
                                     pleading. According to our fax sen•ice, it did not go through. Hopc:fully it will fare better with the new
                                     fux number in your letterh~d.



                                                                                      2:~}'                    .
                                                                                     ~~




                                                               2.118 SmHh SLI'eet 1 Houston, Texas 77002
                                                       Main Phone: (713) 658-9001 I :Main t:a<.a~imil9: (7f3)       658~9011
                                                                            www_hmgllp.com




      Exhibit V                                                                                                                                                 App. 424
                                   CAUSE NO. 2014-10896

LOS CUCOS MEXICAN CAFE VIII,                   §       IN THE DISTRICT COURT OF
INC.; LOS CUCOS MEXICAN                        §
CAFE IV, INC.; MANUEL                          §
CABRERA; and SERGIO                            §
CABRERA,                                       §
            Plaintiffs                         §
                                               §
v.                                             §
                                               §       HARRIS COUNTY, TEXAS
8650 FRISCO, LLC D/B/A ESTILO                  §
GAUCHO BRAZILIAN                               §
STEAKHOUSE; MANDONA, LLC;                      §
GALOVELHO, LLC; BAHTCHE,                       §
LLC; CLAUDIO NUNES; and                        §
DAVID JEIEL RODRIGUES,                         §
           Defendants                          §       133rd JUDICIAL DISTRICT


                                Order Granting Plaintiffs’
                        Third Motion To Enforce The Court’s Order

       On this day the Court came to consider Plaintiffs’ Third Motion to Enforce the Court’s

Order (the “Motion”). After considering the facts, law, and argument of counsel, the Court has

decided to GRANT the Motion. Defendants will produce all documents responsive to Requests

for Production 1, 2, 3, 4, 5, 7, and 8 contained in Exhibit 1 to the Motion (the “Documents”).

This production must be made through hand delivery during normal business hours to Andrew

Meade or Samuel Haren at HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smith,

Houston, Texas 77002.

       The Court further finds that Defendants violated three of the Court’s prior orders by

failing to produce responsive documents. This misconduct is part of a larger pattern of improper

objections, meritless motions, frivolous arguments, feigned ignorance of basic factual and legal

issues, and dishonest gamesmanship in violation of Texas Rule of Civil Procedure 13. Previous

warnings from the Court have been ineffective in forcing Defendants to comply with the Court’s




Exhibit V                                                                           App. 425
orders or with Texas law, and another warning is unlikely to achieve better results. Moreover,

another warning would only encourage Defendants to continue their egregious behavior in the

future.

          Accordingly, the Court imposes the following sanctions:

             Defendants may not conduct additional discovery in this matter until a representative
              of 8650 Frisco, LLC signs a sworn affidavit of compliance with this order;

             Defendants shall pay $_____________ to Plaintiffs for their costs incurred in
              securing production of the Documents; and

             the issue of whether Plaintiffs face irreparable harm from the lack of the note/security
              required by the parties’ contract is conclusively established in Plaintiffs’ favor.

          Should Defendants fail to comply with this order within forty-eight hours of the signature

hereof, Defendants and their attorneys of record will be asked to personally appear and show

cause as to why they should not be held in contempt of this Court.



          Signed on the _____ day of _______________________, 2015.




                                        Judge Presiding




                                                   2
Exhibit V                                                                                 App. 426
                                     Cause No. 2014-10896

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

 v.                                                         Harris County, Texas

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


                                       Notice of Hearing

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

Enforce the Court’s Order and for Sanctions on Monday, April 27, 2015, at 10:00 a.m., in the

133rd Judicial District Court of Harris County, Texas.

                                                           Respectfully submitted,

                                                           Hawash Meade Gaston
                                                           Neese & Cicack LLP

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




Exhibit V                                                                              App. 427
                Stephens & Domnitz, PLLC

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

                Cox Smith Matthews Incorporated

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

                Attorneys for Plaintiffs




            2
Exhibit V                                  App. 428
                                       Certificate of Service

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

electronic service on April 6, 2015.

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

                                                                /s/ Samuel B. Haren
                                                                Samuel B. Haren




                                                 3
Exhibit V                                                                             App. 429
                                                                                                4/24/2015 11:32:47 AM
                                                                             Chris Daniel - District Clerk Harris County
                                                                                                Envelope No. 5021608
                                                                                                 By: EVELYN PALMER
                                                                                        Filed: 4/24/2015 11:32:47 AM

                         CAUSE NO. 2014-10896
                                   § IN THE DISTRICT COURT
LOS CUCOS MEXICAN CAFÉ VIII, INC.,
                                   §
LOS CUCOS MEXICAN CAFÉ IV, INC.,
                                   §
MANUEL CABRERA, and SERGIO
                                   §
CABRERA
                                   §
PLAINTIFFS,                        §
                                   §
V.                                 § 133rd JUDICIAL DISTRICT
                                   §
                                   §
8650 FRISCO LLC, MANDONA LLC,
                                   §
GALOVELHO LLC, BAHTCHE LLC,
                                   §
CLAUDIO NUNES, AND DAVID JEIEL
                                   §
RODRIGUES
                                   §
DEFENDANT.                         § OF HARRIS COUNTY, TEXAS
                      DEFENDANT’S RESPONSE TO
          PLAINTIFFS MOTION TO ENFORCE AND FOR SANCTIONS

Defendant, 8650 Frisco LLC, asks the Court to deny Plaintiffs, Los Cucos Mexican Café

VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera’s,

Third Motion to Enforce the Court’s Order and for Sanctions, and to impose sanctions

on Plaintiffs for their continual filing of frivolous motions, motions that fail to comply with

the Texas Rules of Civil Procedure or the Harris County Local Rules, motion with no

basis in law or fact, and motions that advance materially false information.

                                      INTRODUCTION

1.     Plaintiffs file their Third Motion to Enforce the Court’s Order and for Sanctions

       alleging of conduct that does not exist, advancing arguments with no support in law

       or fact, and pointlessly increasing costs of a case that has been settled for

       approximately eight months.

2.     Defendants are in compliance with the Rule 11 Agreement and have been regularly

       paying each payment under the note agreed upon by the Defendants–Plaintiffs

Defendants’ Response to Plaintiffs’ Third Motion to Enforce.                                         1


Exhibit W                                                                             App. 430
      continue to prosecute this case without rhyme or reason.

3.    In an effort to resolve the document drafting issues, Defendants counsel has

      attempted to reach out at least a dozen times to various lawyers involved in this

      case, with little or no success.

4.    As of the week of April 13, 2015, Kelly Stephens and Counsel for Defendants were

      finally able to discuss the issues complained of by Plaintiffs. Defendants requested

      a mutual canceling of all hearings set for April 27, 2015, the hearings remain set.

5.    Plaintiff offers a bizzare contorted view on reality that reflects the underlying

      problem with this litigation from the beginning, rather than adhering to the lawyers

      creed by demonstrating: candor, honesty, and adhering to their duties to the client

      and the court– Plaintiffs’ Counsel wages a warpath of false attribution, misstatement

      of law and fact, inability to recognize how opposing counsel creates a record for

      review, and seeks sanctions for every argument raised. Plaintiffs’ actions continue

      in their Third Motion to Enforce and for Sanctions, despite the Attorney in Charge’s

      admission that he was served documents, Mr. Haren falsely contends that

      Defendants ignored every order from this court.

6.    Rather than stoop to Plaintiffs’ level, Defendants will attempt to address what little

      argument is presented in Plaintiffs’ Motion and not endeavor to sling mud on a case

      that should have been concluded by virtue of the Rule 11 agreement and

      Defendants continual payment of the settlement amounts. (However, if necessary,

      Defendants reserve all responses to the false statements, deceptive remarks, and

      unnecessary misstatements of law and fact for a later time.)

                          ARGUMENTS AND AUTHORITIES

Defendants’ Response to Plaintiffs’ Third Motion to Enforce.                              2


Exhibit W                                                                       App. 431
7.    Plaintiffs’ Motion to Enforce creates a chart of what Plaintiffs requested and

      compared this to what was received after Defendants served the documents on

      Plaintiffs twice.

8.    Plaintiffs argument is reduced to one sentence immediately following the chart.

      Plaintiffs’ Third Motion to Enforce the Court’s Order and for Sanctions, pg. 3.

9.    Plaintiffs essentially complain that (1) the dates of production of various

      documents (including bank accounts, sales reports, and other docum ents) were

      limited to a range between April and July 2014; (2) “accounting records” such as

      “QuickBooks” files and various other financial statements1 were not produced; (3)

      tax records were not produced; and (4) documents/correspondence from their

      accountants “other the [sic] Holtman Documents.”

Production of documents between April and July 2014 (inclusive) is proper.

10.   Defendants agree that the documents produced on August 1, 2014 and again on

      March 31, 2014 encompass a time between April 2014 and July 2014– inclusive.

11.   Plaintiff offers no argument or supporting case law related to why this response

      is objectionable. The Responsive documents were initially tendered on August 1,

      2014, the court subsequently ordered Defendants to reproduce what was

      produced on August 1, 2014 – Defendants produced the same documents again

      on March 31, 2015.

12.   Plaintiffs proffer no argument as to why the production from April 2014 to July,



      1
       The documents described by Mr. Haren as “accounting records” are not
accounting records, rather they are more aptly termed “Financial Statements.” See
FINANCIAL STATEMENT, Black's Law Dictionary (10th ed. 2014)

Defendants’ Response to Plaintiffs’ Third Motion to Enforce.                             3


Exhibit W                                                                       App. 432
      2014 is inappropriate, deserving of sanctions, or in violation of any order of this

      Court. Defendants cannot properly prepare a response to Plaintiffs’ Motion on

      the relevant issues about which they are complaining until such a time as

      Plaintiffs articulate their argument.

Accounting Records

13.   Plaintiffs’ inaccurate identification aside–whether Plaintiffs have requested

      financial statements or accounting records– Plaintiffs provide no argument as to

      as to why the documents produced are inappropriate.

14.   Plaintiffs acknowledge that every document in the possession of Holtman, 8650

      Frisco LLC’s prior accountant, are in Plaintiffs possession. Plaintiffs’ Third Motion

      to Enforce the Court’s Order and for Sanctions, Fn. 3 (“As the Court may recall,

      Plaintiffs obtained 7,235 pages of documents via subpoena from Hal Holtman

      (the “Holtman Documents”). Plaintiffs Bates labeled these documents and

      forwarded them to Defendants. Last June, Defendants “produced” the Holtman

      Documents, complete with Plaintiffs’ original Bates numbering.[sic]”).

15.   Given that the first time Defendants had been able to retrieve these documents

      was from Plaintiffs it is difficult to understand why Plaintiffs would want these

      documents produced back to them, however, Plaintiffs demanded the

      documents and Defendants complied. Id. (“Last June, Defendants “produced”

      the Holtman Documents, complete with Plaintiffs’ original Bates numbering

      [sic].”).

16.   Plaintiffs proffer no argument as to why the documents as produced are

      inappropriate or deserving of sanctions, or in violation of any order of this Court.

Defendants’ Response to Plaintiffs’ Third Motion to Enforce.                                 4


Exhibit W                                                                       App. 433
      Defendants cannot properly prepare a response to Plaintiffs’ Motion on the

      relevant issues about which they are complaining, until Plaintiffs describe what

      their objection to the documents produced is, why the documents produced were

      inappropriate, and how the documents produced failed to comply with the orders

      of the Court and define the specifics which Order to which they are referring.

Tax Records

17.   Without delving into greater detail than necessary, Plaintiffs argument fails on

      the most fundamental basis related to Tax Records.

18.   No tax records were produced beyond what Plaintiffs currently have, because at

      the time of production, August 1, 2014, the tax returns were not due. See

      generally Instructions to Form 1065, pg 4. Plaintiffs even have correspondence

      in their possession reflecting that an extension was filed and acknowledged by

      Plaintiffs’ accountant, Hal Holtman.

19.   Plaintiffs’ “argument,” if any, lacks merit as it relates to “Tax Records”.

Documents/correspondence from their accountants “other the [sic] Holtman Documents

20.   Defendants again, admit that documentation or correspondence between 8650

      Frisco LLC was scant. However, perhaps this was not due to an improper motive

      as Plaintiffs suggest–instead, perhaps, Defendants took the 7000 pages

      produced to Plaintiffs from Mr. Holtman, Plaintiffs’ accountant, and had a

      meeting with their new accountant instead of emailing it to him.

21.   Plaintiffs fail to explain what documents are remaining that they believe illustrate

      a failure to comply with any of the Court’s orders. Until Plaintiffs explain how the

      production was insufficient, and in violation of the Court’s Order, Defendants can

Defendants’ Response to Plaintiffs’ Third Motion to Enforce.                                 5


Exhibit W                                                                           App. 434
      hardly be expected to muster a defense to an unarticulated accusation.

Discussion and Sanctions

22.   Mr. Haren complains that “All three times, Defendants have simply ignored the

      Court’s order.”[sic]. Plaintiffs’ Third Motion to Enforce the Court’s Order and for

      Sanctions. Plaintiffs, however, fail to elaborate on where the deficiency lies, how

      the deficiency warrants sanctions, which document if any they are requesting is

      actually missing, or any proper efforts of conferring– other than purely self

      serving statements made in the conference.

23.   None of Mr. Haren’s proposed sanctions relate to any of his alleged misconduct.

      This is especially true given that Mr. Haren fails to identify any conduct sufficient

      to warrant sanctions.

24.   As to disallowing discovery, Defendant prays that this court will simply enforce

      the Rule 11 agreement filed with this Court and dismiss this case as Plaintiffs

      have received their money every single month and the parties are still working on

      the settlement documents despite Mr. Haren’s conduct. Certainly, Defendants

      request that all activities be terminated until such a time that a breach of the Rule

      11 agreement actually occurs.

25.   As to requesting that Defendants pay Plaintiffs’ Attorneys’ fees, Defendants find

      little law requiring a party to pay attorney’s fees of another party when the other

      party loses documents served on their counsel. See Supplement to Defendants’

      Response to Plaintiffs’ Second Motion to Enforce the Court’s Order and for

      Sanctions and Defendants’ Motion for Sanctions, Exhibit C. If such a case exists,

      Defendants will be disappointed such a case exists in Texas, however, will revisit

Defendants’ Response to Plaintiffs’ Third Motion to Enforce.                                6


Exhibit W                                                                       App. 435
      the argument that Mr. Stephens should be rewarded for losing files served on

      him for his clients’ safekeeping. It is more likely that Texas Law supports the

      award of attorney’s fees to Defendants for responding to Mr. Haren’s frivolous

      motion and Plaintiffs refusal to settle the case as required under the Rule 11

      agreement.

26.   As to ordering the matter at issue “specifically, whether Plaintiffs face irreparable

      harm from Defendants’ failure to provide the note/security required by the parties

      contract be established in Plaintiffs’ favor. [sic]” Plaintiffs' Third Motion to Enforce

      the Court's Order and for Sanctions, pg. 4.

27.   In reviewing Plaintiffs’ Fourth Amended Petition, Defendants find no request for

      injunctive relief, nor any issues related to “irreparable harm.” Therefore, it is

      unclear why “irreparable harm” is relevant to a breach of contract proceeding–

      given Plaintiffs do not seek specific performance rather a judgment for exactly

      what they are being given–money. See Plaintiffs’ Fourth Amended Petition

      Paragraphs 42-45.

28.   Even if “irreparable harm” were relevant to these proceedings, Plaintiffs lack any

      expertise or knowledge sufficient to determine the harm incurred by being paid

      all monies owed under the contract and whether it is “irreparable”. See

      Correspondence related to Deposition of Samuel Haren and Plaintiffs’

      Supplemental Response to Defendants’ No Evidence Motion for Summary

      Judgment, Exhibit 12, Affidavit of Samuel Haren.

29.   Finally, as to Mr. Haren’s request to hold everyone in contempt, Mr. Haren has

      failed to identify sanctionable conduct, there is certainly no conduct sufficient to

Defendants’ Response to Plaintiffs’ Third Motion to Enforce.                                 7


Exhibit W                                                                         App. 436
      warrant contempt. Even if Mr. Haren had briefed allegations sufficient to warrant

      contempt, Mr. Haren should familiarize himself with Chapter 21 of the

      Government Code.

                                       CONCLUSION

30.   The Court should dismiss this case until such a time as a breach of the Rule 11

      agreement actually exists. Plaintiffs are receiving regular payments pursuant to

      the Parties’ agreement and have no basis in law or fact for any argument they

      have presented to this Court. Certainly, Defendants have made a record (time

      and time again), Defendants have dutifully complied with the orders of the Court

      and Plaintiffs have no evidence to illustrate otherwise.

                                        PRAYER

31.   Defendants Pray that this court will dismiss this case, until such a time that a

      party is actually in breach of the Rule 11 agreement. Defendants further pray

      that the Court deny Plaintiffs’ Motion and award Defendants all attorney’s fees

      incurred in responding to both the second and third motions to enforce– as both

      are frivolous and lacks merit.

Respectfully submitted, MOSSER LAW PLLC,




/s/ Nicholas D. Mosser
Nicholas D. Mosser
Texas Bar No. 24075405
Mosser Law, PLLC
2805 Dallas Parkway Suite 222
Plano, Texas 75093
Telephone 972-733-3223
Facsimile 469-626-1073

Defendants’ Response to Plaintiffs’ Third Motion to Enforce.                              8


Exhibit W                                                                      App. 437
courtdocuments@mosserlaw.com
LAWYER FOR DEFENDANTS




                             CERTIFICATE OF SERVICE

      I certify that on April 24, 2015, a true and correct copy of this document was
served pursuant to Tex. R. Civ. P. 21 and 21a, to the following counsel/parties:

Kelly Stephens
P.O. Box 79734
Houston, Texas 77279
Telephone: 1-281-394-3287
Facsimile: 1-832-476-5460



Nicholas D. Mosser
By: Nicholas D. Mosser




Defendants’ Response to Plaintiffs’ Third Motion to Enforce.                           9


Exhibit W                                                                     App. 438
           Un
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                                                                             k




App. 439
                         CAUSE NO. 2014-10896

LOS CUCOS MEXICAN CAFE VIII, § IN THE DISTRICT COURT
INC., LOS CUCOS MEXICAN      §
CAFE IV, INC., MANUEL        §
CABRERA, and SERGIO          §
CABRERA                      §
PLAINTIFFS,                  §
                                     §
V.                                   § 133rd JUDICIAL DISTRICT
                                     §
8650 FRISCO LLC, MANDONA             §
LLC, GALOVELHO LLC,                  §
BAHTCHE LLC, CLAUDIO                 §
NUNES, AND DAVID JEIEL               §
RODRIGUES                            §
DEFENDANT.                           § OF HARRIS COUNTY, TEXAS

     UNSWORN DECLARATION OF PAUL J . DOWNEY REGARDING
           DISCOVERY REQUESTS FROM PLAINTIFFS

1.    My name is Paul J. Downey. I am of sound mind , capable of making

      this unsworn declaration, and personally acquainted with the facts

      herein stated.

2.    I am a lawyer at Mosser Law, PLLC.

3.    I am one of the custodians of the records at Mosser Law, PLLC.

4.    As one of the custodians of records at Mosser Law, PLLC, I monitor

      incoming documents so that deadlines pertaining to those documents

      are not missed.

5.    Discovery requests are among the class of documents that have




Exhibit Y                                                         App. 440
      deadlines based upon the day the office receives them.

6.    Since January 21 , 2015, no discovery request propounded under the

      Texas Rules of Civil Procedure has been served on our office by

      Counsel for the Paintiffs.

My name is Paul James Downey, my date of birth is January 19, 1984, and

my address is C/0 Mosser Law, PLLC, 2805 Dallas Parkway, Suite 222,

Plano, Texas 75093, United States of America . I declare under penalty of

perjury that the foregoing is true and correct.

Executed in Collin County, State of Texas on the 5th Day of May, 2015.




Paul J. Downey




Exhibit Y                                                        App. 441
                        No.
                              -----------------
                                   IN THE

     FIRST/FOURTEENTH JUDICIAL DISTRICT COURT OF APPEALS

                              at HOUSTON, TEXAS

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

ORIGINAL PROCEEDING FROM THE 133rd JUDICIAL DISTRICT COURT

                                      OF

                          HARRIS COUNTY, TEXAS

                      STATEMENT OF NO EVIDENCE


      UNSWORN DECLARATION OF NICHOLAS D. MOSSER OF NO
     EVIDENCE IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS

1.     My name is Nicholas D. Mosser. I am of sound mind, capable of

       making this unsworn declaration , and personally acquainted with the

       facts herein stated.

2.     I represent the relator in the above-styled case, and on the Relator's

       behalf, I filed a Petition for Writ of Mandamus on May 6, 2015.

3.     The trial court rendered an order on Real Parties' in Interest Second

       Motion to Enforce the Court's Order on April 1, 2015.




Exhibit Z                                                            App. 442
4.   The trial court based its April 1, 2015 order on the papers on file in

     this case and the arguments of the attorneys. No evidence or

     testimony was received at the March 30, 2015 hearing on the Real

     Parties' in Interest Second Motion to Enforce the Court's Order.

5.   Additionally, the trial court rendered an order on Real Parties' in

     Interest Third Motion to Enforce the Court's Order on April 27, 2015.

6.   The trial court also based April 27, 2015 order on the papers on file in

     this case and the argument of the attorneys. No evidence or

     testimony was received at the April 27, 2015, hearing on the Real

     Parties' in Interest Third Motion to Enforce the Court's Order

7.    I have ordered copies of the transcripts of the hearings held on

      March 30, 2015, and April 27, 2015, from the Court Reporter present

     on at these hearings. I will supplement the appendix and record as

     soon as these transcripts become available.

My name is Nicholas Dupont Mosser, my date of birth is March 20, 1984,

and my address is C/0 Mosser Law, PLLC, 2805 Dallas Parkway, Suite

222, Plano, Texas 75093, United States of America. I declare under

penalty of perjury that the foregoing is true and correct.

Executed in Collin County, State of Texas on the 51h Day of May, 2015.




Exhibit Z                                                             App. 443
Exhibit Z   App. 444
