in Re 8650 Frisco, LLC D/B/A Estilo Gaucho Brazilian Steakhouse, Mandona, LLC, Galovelho, LLC, Bahtche, LLC, Claudio Nunes and David Jeiel Rodrigues

• Court: Court of Appeals of Texas
• Decided: May 6, 2015
• Docket: 01-15-00423-CV
• Status: Published

Opinion

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.

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

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

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 fic ial C op yO ffic e of C hr is Da nie lD ist rict C ler k

App. 1 Exhibit B Un of fic ial C op yO ffic e of C hr is Da nie lD ist rict C ler k

App. 2 Exhibit B Un of fic ial C op yO ffic e of C hr is Da nie lD 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

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

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

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.

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

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

(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

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.

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

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

/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

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

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.

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,

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.

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.

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.

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.

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.

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.

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.

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.

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

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

10 MOTIONS

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

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.

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

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

Exhibit N App. 43 3

1 July 28, 2014

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?

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?

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.

14 (End of proceedings).

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

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 o* b· Cb }L{ . rn ci;q) •.~·-c '~~ DATED:1~J-C?-c:Jo!L/ «:_Y .~- Q; ij)o ~'l.y

,~<--»

c-~ t!f ~"'b ('Q u ;~ '%,©! ~~ $'» ~~

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

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

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

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

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.)

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

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.

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

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

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.

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

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.

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,

/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

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

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

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,

/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

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

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

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

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

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.

/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

/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

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

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.

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,

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.

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.

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.

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.

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.

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.

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.

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

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

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

Via Facsimile: (830)625-1498 . Hal Holtman, CPA · Holtman an.d Company LLC 876 LOOP 337 BLDG 501 NEW BRAUNFELS TX 78130

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

Via Facsimile: (830)625-1498 Hal Holtman, CPA Holtman and Company LLC. 876 LOOP 337 BLDG 501. NEW BRAUNFELS TX 78130

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.

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

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

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,

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).

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.

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.

/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

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

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

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

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

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

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.

/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

/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.

/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

/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

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

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.

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,

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 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.

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.

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

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.

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

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.

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

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,

/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

/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

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

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.

Exhibit R App. 210 Respectfully submitted,

/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

/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

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

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.

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;

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;

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;

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.

Exhibit R App. 214 Respectfully submitted,

/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

/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

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

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,

/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

/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

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

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.

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;

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;

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;

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.

Exhibit R App. 221 Respectfully submitted,

/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

/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

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

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

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;

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;

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;

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.

Exhibit R App. 225 Respectfully submitted,

/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

/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

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

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

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: ------------------------------------------------------------------------------

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

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 _______________________________________________________

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.

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

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

DARLENE STEIN Exhibit R App. 244 MOTION TO COMPEL 4

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

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

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.)

DARLENE STEIN Exhibit R App. 266 Motion to Compel 26

1 STATE OF TEXAS

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

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

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

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

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

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

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

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

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;;;:....=---------------------------- -

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

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 0l <1.l gp ~ I M M '<1" 1:-- '<1" 1:-- ,...., 'D ;..; <1.l ,.D

~1:: <1.l s ;::l (J 0 Q '"d <1.l ll=i 2 "-E<1.l C) 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

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

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

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)

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.

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

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,

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

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

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).

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

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).

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

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

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

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

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'( +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.

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

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

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.

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

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

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,

/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

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

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

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

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

§ 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.

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.

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.

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

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

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.

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

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

§ 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.

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.

WHEREFORE, PREMISES CONSIDERED, Defendants request that the Court, after notice

and hearing, deny Plaintiffs’ Motion, and impose sanctions upon Kelly Stephens for signing

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

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.

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

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

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.

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.

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

RE: L q s C y c q s VII lnq et a! y 865Q Erlscq LLC. a t a!_

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

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...

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

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

VIa Facsimile•

RE: Lqs Cucqs Vll Inc. er a t y B§SQ Eclsqq L L C e t nl.

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

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

VIa Facsimile~

RE: L o s Cuco.s- Vll.. Inc.. .. e ( g l y B65Q Erlseq LLC:: e t a l..

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{..

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

VIla Eapslmlle~

RE: Lq.s Cyqq.s \Of lnp e'l sl_ v 8650 F r l s c q LLC: e t «le

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

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..

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

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

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

RE: Lqs Cucqs yn Inc et al y; 8650 Erlseq I LC •t a{,

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

VIa Eac;;slmlle-

RE.: Lp.s Cup~ Vll Inc et: s l V. BB5Q Erlsc:q LLC a t al-

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

VIP Facsimile:

RE: L q s Qycq.s VII Inc; at a! y BSSQ Frl.sqq L L C a t aL

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

Via Epc:aimilo•

RE: Lqs Cucos ltll Inc., pt al v: 865'0 Erlsc:q L L C e t a !..

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

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.

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.

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).

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,

/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

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

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

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.

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

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.

/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

/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

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

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.

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,

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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

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

Exhibit V App. 385 MOTION TO COMPEL 1

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

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

12 MOTION TO TRANSFER 13 _______________________________________________________

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

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

DARLENE STEIN Exhibit V App. 387 MOTION TO COMPEL 3

DARLENE STEIN Exhibit V App. 388 MOTION TO COMPEL 4

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

DARLENE STEIN Exhibit V App. 389 MOTION TO COMPEL 5

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

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

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

DARLENE STEIN Exhibit V App. 390 MOTION TO COMPEL 6

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

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

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

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

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

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

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

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

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

DARLENE STEIN Exhibit V App. 392 MOTION TO COMPEL 8

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

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

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

DARLENE STEIN Exhibit V App. 393 MOTION TO COMPEL 9

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

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

10 limited liability company act, under the partners' oral

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

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

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

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

DARLENE STEIN Exhibit V App. 394 MOTION TO COMPEL 10

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

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.

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

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

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

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

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

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

DARLENE STEIN Exhibit V App. 396 MOTION TO COMPEL 12

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

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

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

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

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

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

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

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

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

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

DARLENE STEIN Exhibit V App. 398 MOTION TO COMPEL 14

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

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

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

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

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

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

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

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

DARLENE STEIN Exhibit V App. 401 MOTION TO COMPEL 17

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

DARLENE STEIN Exhibit V App. 402 MOTION TO COMPEL 18

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

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

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

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

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

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

DARLENE STEIN Exhibit V App. 404 MOTION TO COMPEL 20

DARLENE STEIN Exhibit V App. 405 MOTION TO COMPEL 21

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

DARLENE STEIN Exhibit V App. 406 MOTION TO COMPEL 22

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

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

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

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

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

DARLENE STEIN Exhibit V App. 407 MOTION TO COMPEL 23

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

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

DARLENE STEIN Exhibit V App. 408 MOTION TO COMPEL 24

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

DARLENE STEIN Exhibit V App. 409 Motion to Compel 25

DARLENE STEIN Exhibit V App. 410 Motion to Compel 26

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

DARLENE STEIN Exhibit V App. 411 611112014 2:07:32 PM Chris Daniel -District Clerk Harris County Envelope No: 1510270 By: ARRIAGA, AMANDA R

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

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

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

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 §

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

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

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

Exhibit V App. 418 I I IUI£oVI ......... VVt••hl r1w1

Chrrs Daniel • District Clerk Harris County Envelope No: 1848413 By: ARRIAGA, AMANDA R

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

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 '+-< 0 0l <1.l gp ~ I M M '<1" 1:-- '<1" 1:-- ,...., 'D ;..; <1.l ,.D

~1:: <1.l s ;::l (J 0 Q '"d <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

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

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

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

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

/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

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

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

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

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.

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.

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.

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.

/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

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

Defendants’ Response to Plaintiffs’ Third Motion to Enforce. 9

Exhibit W App. 438 Un of fic ial Co py O ffic e of C hr is Da nie lD ist ric t Cl er 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

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

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

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

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