in Re Allen J. Jones
Opinion
FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 10/19/2015 4:15:46 PM KEITH E. HOTTLE Clerk
Appendix 1 FILED 10/12/2015 8:04:13 AM Donna Kay McKinney Bexar County District Clerk Accepted By: Marissa Ugarte
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DEPOSITION OF DEFENDANT ALLEN J JONES
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES PLAINTIFF CEARTH FAIRE, who herein files her Reply to
Defendants’ Response to Plaintiff’s Motion to Compel the Deposition of Defendant
Allen J. Jones and by this Reply would show the court as follows:
I. Statements Within the Response Are False
Defendant’s allegations that Plaintiff ‘s Motion to Compel Deposition is a mere
vehicle to attack Jones’ character is false. It is true and a matter of record that
Jones has judicially admitted to human trafficking in open court in cause number
2013-CI-04328.
It is also a matter of record that Jones held hostage his infant son in the 1 Dominican Republic for five months to gain financial advantage in the pending
divorce that was finalized on July 17, 2013.
This legal misconduct is a good indicator that without a court order to compel
his deposition he will not appear. The history of this case reflects that he has used
his counsel’s unavailability to resist giving his oral and video-taped deposition during
this pending litigation that has been ongoing for over one year.
Plaintiff would show Jones’ good character, or lack thereof, is by his own
admissions a matter of record for this Court to consider.
II. Plaintiff Has Exhibited Due Diligence Noticing Depositions
Plaintiff again asserts that without a Court Order and a Court assessing
consequences for resisting the oral deposition, Jones will not make himself available
for the deposition. This case was filed on October 21, 2014, and continues with no
end in sight. Although trial is set for March 7, 2016.
Plaintiff files with this Reply a summary of efforts to depose Jones together with
pleadings, letters and Rule 11 Agreements that disprove all of the factual allegations
contained in Defendant’s Response. See Exhibit “A” attached herein and
incorporated for purposes.
CONCLUSION & PRAYER
2 Plaintiff respectfully requests this Court consider the character of Jones
that by his own admissions shows total and complete disrespect for the system of
justice and can anticipate that he will not present himself for the oral deposition
presently noticed for October 27, 2015. Plaintiff prays that after notice and hearing
and consideration of the false representation made in Defendant’s Response that
the Court deny their requests for attorney fees and grant to Plaintiff the relief
requested in Plaintiff’s Motion to Compel. Plaintiff prays for all other and further
relief to which Plaintiff is entitled.
Respectfully submitted,
LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net
By: /s/ Olga Brown_________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 12TH day of October 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Second Motion to Compel Deposition of Defendant Allen J Jones was furnished to:
Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN
3 EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones ::.7°NREP:INEERT:
Defendant omitted that their 9].a Motion was filed December 2 • • • • • • • • • • • • .• • .• • .•. : Page 1 of Defendant's Response !2014.:(AFTERiDaposition:::noticof:J247/014)H.:." Plaintiff attempted to confer on new dates Dec 18, 2014 Plaintiff offered Rule 11 agreement 'Dec 29, 2014 Defendant "made`no f urther: efforts to schedule or take :'J'0n'esr 'i' Page 1 of Defendant's Response DepOSition. ...... Plaintiff attempted to confer on new dates Dec 18, 2014 Plaintiff offered Rule 11 agreement Dec 29, 2014 Page 2 of Defendant's Response !Plaintiff next nOtiCed;IdnedepoSititin foe. April'13 -:21115:H Plaintiff attempted to confer February 24, 2015 and March 13, 2015 ,Nun.
Page 2 of Defendant's Response Jaimants counsel elected to cancel this deposition setting
Claimant's counsel asked for alternative dates for deposition because Defendants had yet to produce complete Responses to Discovery Requests, in letter dated April 6, 2015
Plaintiff allowed the matter of deposition to languish for nearly Page 2 Para 2 of Defendant's Response months until she unilaterally noticed for Oct 2, 2015 Plaintiff Amended Petition Jun 19, 2015 Plaintiff served Second Amended Notice of Deposition August 28, 2015, setting for October 2, 2015 Plaintiff noticed the deposition of Jones in a companion matter in September 18, 2015, which ALL JON ES quashed
Defendant claims Jones was "ready to appear" for his deposition on October 2, 2015, YET Defendant counsel was unavailable - by his written letter of September 30, 2015
Plaintiff proposed a Rule 11 agreement regarding dropping the Amended Docket Control Order - Counsel for Defendant handwrote his request to reset depositions, which Plaintiff did.
TWIN'Er4g2412iiitf Plaintiff's repeated, baseless, inflammatory, and sanctionable Page 2 para 4 of Defendant's Response attacks on Mr. Jones' character belie the arguments.. Plaintiff's pleadings speak for themselves, and are facts for a jury to determine ;!'1.1.,.......ascr.r, • UZI
.intant:MOtion:serves: as a:vehiCle:by ••••:•• • •:.:.• • noy : ......... Page 2-3 of Defendant's response aria unwariantectcOsts.On:Jones...:.:::.::.
Defendants abuse of discovery, even when compelled by the Court, and harassing pleadings in Justice Court and County Court are harassing, retaliatory for Plaintiff asserting her rights EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones • Defendant JOnes has:!full yPorriplied with the:R.ules:,anaany:.and..:a.mi,,i entered:iii:::this. andsO •• Plaintiff•srequestfor Page 3 of Defendant's response SanctiOnS:SfibUtd.:be.:denied Defendants have and continue to abuse discovery, despite an Order from Judge Sakai, upon which Plaintiff has attempted to confer on several occasions Attempt to Confer October 5, 2015 re discovery withheld Second and Final Attempt to Confer October 7, 2015 with BATES references EXHIBIT A - Reply to Response - Mtn to CompelNoDepo Oct 6 2015 9:19AM 0597 Jones P 2
SCHMOYER REINHARD LI,P Alior,a9s of Law ^,^ 17808 IH 10 West Suite 400 • Sari Antonio Togas 78267 v Office: 210 447 8033 , fax: 210.A418036 • www sr .1Ip corn
J1.IS IN BARTIOUR 210.447.8033 (tel.) 210.447..8036 (fax) jbarbour@sr-l10 corn
October 6, 2015
VIA FACSIMILE 210126.1884 Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, Teas 78205
Re: Cause No. 2014.CI-16674; Cearth Faire v. .FNIP SA Management Group, LIE d/b/a Food Management Partners, LLC et al; In the 150th Judicial District Court, Bexar County, Iexas Out File No 108 023
Free access — add to your briefcase to read the full text and ask questions with AI
FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 10/19/2015 4:15:46 PM KEITH E. HOTTLE Clerk
Appendix 1 FILED 10/12/2015 8:04:13 AM Donna Kay McKinney Bexar County District Clerk Accepted By: Marissa Ugarte
CAUSE NO. 2014-CI-16674
CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DEPOSITION OF DEFENDANT ALLEN J JONES
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES PLAINTIFF CEARTH FAIRE, who herein files her Reply to
Defendants’ Response to Plaintiff’s Motion to Compel the Deposition of Defendant
Allen J. Jones and by this Reply would show the court as follows:
I. Statements Within the Response Are False
Defendant’s allegations that Plaintiff ‘s Motion to Compel Deposition is a mere
vehicle to attack Jones’ character is false. It is true and a matter of record that
Jones has judicially admitted to human trafficking in open court in cause number
2013-CI-04328.
It is also a matter of record that Jones held hostage his infant son in the 1 Dominican Republic for five months to gain financial advantage in the pending
divorce that was finalized on July 17, 2013.
This legal misconduct is a good indicator that without a court order to compel
his deposition he will not appear. The history of this case reflects that he has used
his counsel’s unavailability to resist giving his oral and video-taped deposition during
this pending litigation that has been ongoing for over one year.
Plaintiff would show Jones’ good character, or lack thereof, is by his own
admissions a matter of record for this Court to consider.
II. Plaintiff Has Exhibited Due Diligence Noticing Depositions
Plaintiff again asserts that without a Court Order and a Court assessing
consequences for resisting the oral deposition, Jones will not make himself available
for the deposition. This case was filed on October 21, 2014, and continues with no
end in sight. Although trial is set for March 7, 2016.
Plaintiff files with this Reply a summary of efforts to depose Jones together with
pleadings, letters and Rule 11 Agreements that disprove all of the factual allegations
contained in Defendant’s Response. See Exhibit “A” attached herein and
incorporated for purposes.
CONCLUSION & PRAYER
2 Plaintiff respectfully requests this Court consider the character of Jones
that by his own admissions shows total and complete disrespect for the system of
justice and can anticipate that he will not present himself for the oral deposition
presently noticed for October 27, 2015. Plaintiff prays that after notice and hearing
and consideration of the false representation made in Defendant’s Response that
the Court deny their requests for attorney fees and grant to Plaintiff the relief
requested in Plaintiff’s Motion to Compel. Plaintiff prays for all other and further
relief to which Plaintiff is entitled.
Respectfully submitted,
LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net
By: /s/ Olga Brown_________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff
CERTIFICATE OF SERVICE
I do hereby certify that on the 12TH day of October 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Second Motion to Compel Deposition of Defendant Allen J Jones was furnished to:
Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN
3 EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones ::.7°NREP:INEERT:
Defendant omitted that their 9].a Motion was filed December 2 • • • • • • • • • • • • .• • .• • .•. : Page 1 of Defendant's Response !2014.:(AFTERiDaposition:::noticof:J247/014)H.:." Plaintiff attempted to confer on new dates Dec 18, 2014 Plaintiff offered Rule 11 agreement 'Dec 29, 2014 Defendant "made`no f urther: efforts to schedule or take :'J'0n'esr 'i' Page 1 of Defendant's Response DepOSition. ...... Plaintiff attempted to confer on new dates Dec 18, 2014 Plaintiff offered Rule 11 agreement Dec 29, 2014 Page 2 of Defendant's Response !Plaintiff next nOtiCed;IdnedepoSititin foe. April'13 -:21115:H Plaintiff attempted to confer February 24, 2015 and March 13, 2015 ,Nun.
Page 2 of Defendant's Response Jaimants counsel elected to cancel this deposition setting
Claimant's counsel asked for alternative dates for deposition because Defendants had yet to produce complete Responses to Discovery Requests, in letter dated April 6, 2015
Plaintiff allowed the matter of deposition to languish for nearly Page 2 Para 2 of Defendant's Response months until she unilaterally noticed for Oct 2, 2015 Plaintiff Amended Petition Jun 19, 2015 Plaintiff served Second Amended Notice of Deposition August 28, 2015, setting for October 2, 2015 Plaintiff noticed the deposition of Jones in a companion matter in September 18, 2015, which ALL JON ES quashed
Defendant claims Jones was "ready to appear" for his deposition on October 2, 2015, YET Defendant counsel was unavailable - by his written letter of September 30, 2015
Plaintiff proposed a Rule 11 agreement regarding dropping the Amended Docket Control Order - Counsel for Defendant handwrote his request to reset depositions, which Plaintiff did.
TWIN'Er4g2412iiitf Plaintiff's repeated, baseless, inflammatory, and sanctionable Page 2 para 4 of Defendant's Response attacks on Mr. Jones' character belie the arguments.. Plaintiff's pleadings speak for themselves, and are facts for a jury to determine ;!'1.1.,.......ascr.r, • UZI
.intant:MOtion:serves: as a:vehiCle:by ••••:•• • •:.:.• • noy : ......... Page 2-3 of Defendant's response aria unwariantectcOsts.On:Jones...:.:::.::.
Defendants abuse of discovery, even when compelled by the Court, and harassing pleadings in Justice Court and County Court are harassing, retaliatory for Plaintiff asserting her rights EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones • Defendant JOnes has:!full yPorriplied with the:R.ules:,anaany:.and..:a.mi,,i entered:iii:::this. andsO •• Plaintiff•srequestfor Page 3 of Defendant's response SanctiOnS:SfibUtd.:be.:denied Defendants have and continue to abuse discovery, despite an Order from Judge Sakai, upon which Plaintiff has attempted to confer on several occasions Attempt to Confer October 5, 2015 re discovery withheld Second and Final Attempt to Confer October 7, 2015 with BATES references EXHIBIT A - Reply to Response - Mtn to CompelNoDepo Oct 6 2015 9:19AM 0597 Jones P 2
SCHMOYER REINHARD LI,P Alior,a9s of Law ^,^ 17808 IH 10 West Suite 400 • Sari Antonio Togas 78267 v Office: 210 447 8033 , fax: 210.A418036 • www sr .1Ip corn
J1.IS IN BARTIOUR 210.447.8033 (tel.) 210.447..8036 (fax) jbarbour@sr-l10 corn
October 6, 2015
VIA FACSIMILE 210126.1884 Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, Teas 78205
Re: Cause No. 2014.CI-16674; Cearth Faire v. .FNIP SA Management Group, LIE d/b/a Food Management Partners, LLC et al; In the 150th Judicial District Court, Bexar County, Iexas Out File No 108 023
Dear Ms Brown: This letter is sent in response to your letter dated yesterday regarding Plaintiffs Motion to Compel Mediation in the above-styled matter. As no depositions have been taken in this case, Defendants cannot agree to mediation at this time, nor can we agree to drop the Oetober 9, 2015 setting on Defendant Kemp's Rule ,91a Motion to Dismiss, We will, however; agree to mediation after the parties have had a chance to take specified deRosi#ons.,,EQr PefendarXtifi - woulctrectuiteropportunitY7todePPse-Plailliliff.before„.a0-silati*lialkif*''s4E014-0I would similarly anticipate you may wiiiffo-fake -i-fewdepb-Siti-on's-befaeisedialitill, as If that is the case, we would kindly ask that you indicate which depositions Plaintiff will want in advance of mediation,
If this proposal - to agree to mediate followkg the completion of specified depositions - meets with your approval, please indicate such and I will draft up a proposed order fox your review If this does not meet with your approval, I would nonetheless kindly ask that we reset the hearing date on your Motion to Compel Mediation As I indicated to your office yesterday, I have a previously scheduled family medical appointment tomorrow at 8:40 am., which will prevent me from attending the hearing. If you would be willing to reschedule the heating, I am available to attend on Friday, October 9, following the completion of our hearing on Defendant Kemp's Rule 91a Motion to Dismiss, or next week on October 12, 14, or 15.
As always, thank you for your courtesies and consideration.
Received Time Oct 6 M2AM EXHIBIT Oct 6 2015 9:19AMA - Reply to Response - Mtn to Compel NoDepo 0597 Jones P 3
Olga Brown. L aw Office of Olga Brown October 6, 2015 Page 2
Sincerely, — xi Barbour
IB:vp
17806 IH 1p West, SOW 400 San Antonio, Texas 78257- Office: 210 497 0033 • Fax: 210..447,8036 •
Received Time Oct 6 9:12AM EXHIBIT A - Reply to Response - Mtn to CompelNoDepo Octb 2015 9:18AM 0597 Jones
SCI MOYER REINIIARD LLP eireetwo er Low
a Antonia, Texas 76257 • Attica: 210 447 8083 - Fax: 210447 8036 • %Wew sr-frp corn 17808 1f-f 10 West Suite 400 Sr
Data October 6, 2015
To: Company; Fax: Phone;
Olga Brown Law Office of Olga Brown 210.226.1884 210.226.1550
From: Company: FaX Phone:
Justin Barbour Schmoyer Reinhard LLP 210.447.8036 210.447.8033
Pages: 3 Re: Ceafth Faire vF'MP, eta! 1na 023
Cl Urgent 21. For Review El Please Comment El Ploaso. Reply 0 Please Recycle
Please see the following attachment ORIG1NAL(S) WILL NOT FOLLOW
Ule infornnat ion contained in this facsimile massage is altorneydlictu priheged and cortfidectial, and is intended only for die use of the individual es entity named *ave. lite reader of this message is not the intended recipient, or dm employee exegetic responsible to deliver it to the intended recipient,-you am hereby noliSed that any dissemination, distribution or copying, of this communication is strictly probibired Tryon have received this communication in error, please eotifyli$ Immediate by telephone, and return the original =tango to os by mil sr rho oddras allows
Received Time Oct 6 9:12AM EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN 111 SOLEDAD, SUITE 1725 SAN ANTONIO, TEXAS 78205 (210) 226-1550 TELKOPiER (210)226-1884 Aravre2@sto fobat net
October 7, 2015
Via facsimile (210) 447-8036 Justin Barbour Schmoyer Reinhard LLP 17806 IH 10 West, suite 400 San Antonio, TX '78257
Re: Cause 2014-CI-16674, Cearth Faire v Fmp Sa Management Group, LIc D/B/A Food Management Partners, Lk, All Jones Llo, Allen J Jones, Individually, And Peter Donbavand, Individually, In The 150th Judicial District, Bexar County, Texas
Second and Final Attempt to Confer Dear Mr. Barbour:
Thank you very much for your letter of October 7, 2015 The letter includes a representation that you have provided "a wealth of documents pertaining to the Timber Place home" but nowhere amongst those documents did you provide the lease purchase agreement or amortization schedule the subject of many entails between Peter Donbavand and Adele Wang. Please see your clients' DEF-CF- 00592. Nowhere did your clients produce the sales contract, in its entirety See DEF-CF-00158.
Further, let's agree that at the time I appeal Judge Arteaga's ruling, the Fourth Court of Appeals will be reviewing the claims de novo. The review will strictly be a question of law Did the Plaintiff give the Defendants 'fair notice" of her claims against them?
I completely and fully disagree on the finality of the claims Judge Arteaga even granted a "motion for summary judgment" when there were no pleadings to support the ruling .
Further, the scope of discovery will allow me to go into all documents that I have requested. So, let's talk about the requests and if I do not have the documents by Monday, October 12, 2015 I will seek court intervention, Your. threats of sanctions by Defendants may be grounds for sanctions against your clients Thank you and I look forward to hearing from you
Respectfully, Th
OLGA B OWN OB/mf cc Cearth Faire File EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones P 1 * * * Memory TX Result Report ( Oct 7 2015 12:53PM ) * * * 1) Law Office of Olga Brown 2) 210-226-1084
Date/lime: Oct 2015 12:52PM
File Page No Mode Destination Pg (s) Result Not Sent
8165 Memory TX 4478036 P 1 OK
Reason for crtor 5 1 Hang up or lino fail E 2) Busy E 3 No answer E 4) No facsimile connection E 5 Exceeded max E-mail size
LAW OFFICE OF OLGA BROWN SOMOMEX1711r26 GANANTOM7ECA37076 ale) MUM TCLECOVell MO) 2221.1484 6,26g4WWQ4AIVI OttObar 7 2015 Vto facsimile 1210)4474035 JustIn8ssbour Schrooyor Reichard LLP 171308 I H 10 Woe; auks 408 San Antonio, TX 743257 Re: Cause 28144146874, Coodh Fero, a Fare So Managomont Gaup, Lie D/B/A rood hfanagamord Partners L dc, Al Jenea LA Men JJonoo loevidooily. Aid Pablo Donlrovand, Individually, lithe 150°1)114dd Maid Soar County Tacos '
Second and Flnar 4ftornpt to Confer Peer r.i.nr Barbour: That* yea yen, muchforyour loaor of October7, 2073 The latter leductes a renroaxitstion that you have provided'a wad*ofdocumentspataning to the *ohm' Mew home but nowhere among:Atha! documentsdid you provide tho twee purchase agreement or amortisation elthedu1e the sublett of many emelts between PeSsiDonbovend end Mere Wong. Please sea Ker atm& DERCF- DMZ &whore did your Giants produce the asIes contract. kills entirrey See DV-SF-0015S.
Further, Me %ace 'hot allthe tkre. Appeal Judge Art:togas :ilea too Fourth Ccurt efAppoole vel be seriesrig that:terms de novo. Tho review wilt stricey be a questhan of law lAd the Plainer/ gke the Defendant/ 'far notion- of ber &Imo egotist than? ' comp**end fay disagree on the finality of Ihe Orbs. Jude1te Mona* even granted o 'Imam for eurnmoariudomorre when there ware no prearreage to uwortleareffm
Further, the nospe ofdisooveryvrt0 anew mote go !Mod dOnentorns that I hove requested. So. lett talc atrtort the Mounts and ITi do not haVo no documents isS, &Wage& October 72;20151 ualcscrok toust Intaveatton. Your Ike= of =am by Defendants rosy no moods foram:Sone agenst your awls Shenk you and I look Lessard to hearing from you
Resicodfully,
°LOA OWlmt Cairat Rare Frto EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN 111 SOLEDAD, SUITE 1725 SAN ANTONIO, TEXAS 78205 (210) 226-1550 'TELECOPIER (210) 226- 1884 Argyle2@sbcgrobal net
Via facsimile (210) 447-8036 aistin Barbour Schrnoyer Reinhard LLP 17806 IH 10 West, suite 400 San Antonio, TX 78257
Re: Cause 2014-CI-16674, Cearth Faire v Fmp Se Management Group, Lk D/B/A Food Management Partners, Lie, All Jones Lie, Allen J Jones, Individually, And Peter Donbavand, Individually, In The 1501" Judicial District, Bexar County, Texas
ATTEMPT TO CONFER - Discovery Withheld
Dear Mr. Barbbur:
I am writing to confer over your clients' still unresolved evasive and/or incomplete responses to Plaintiff's multiple Identification Interrogatories and Requests for Production
Your clients have deliberately and willfully withheld documents that are responsive to my client's requests, and are also relevant to her claims
Specifically, but not limited to emails, text messages and other correspondence and documents regarding 8647 Timber P1, and your client Allen Jones' intentions, actions with regard to Ms Faire's claims.
I look forward to hearing from you again very soon.
Respectfully,
ZDK-A—An OLGA ROWN OB/mf cc Cearth Faire File EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones P 1 * Memory TX Result Report ( Oct 6 2015 10:45AM ) * * * 1) Law Office of Olga. Brown 2) 210-226 - 1884
Date/Time: Oct 6 2015 10:44AM
File Page No Mode Destination Pg(s) Result Not Sent
8156 Memory TX 4478036 P 1 OK
Reason for error E 1) Hang up or line fail E 3) No answer E to connect ion E 5) Exceeded max E—mail size
LAW OFFICE OF OLGA BROWN 111 &WM% U11131720 13.1210.71133110.1117.011112101 :60000 meow ft0110 22044 04 2120272:42211122011151 October 6 2015 ylaracaledlettl0Y4474038 .fustiollarbour Scheroyer Reinhard LLP 17808 il-1101.1Tent, suite 400 San Antonia TA 78257 Re: Cause 2014-0148874. COorthFolro u Frop So Maopgomont Gomp, Llo A/EVA Food M00000marttPortools, Lk, A a Jones Lk Alm .1401204 Nth/Moat& And Peter Dortdavon4 Indifiduady In JudEclel Meld Ben:County Tens ATTEMPT TOCoalFER—Tdscovorytanthbord Dear Mc Barbour: 1 ern vatUng to meet over your dared end unresolved evasive and/or in:omelet. responses to Pialnlitts mutt* htentittcation Ibtensotodes and Request:icor Prows= Your clkres have doltberatey and WIWI!? withheld documents that ere responsive to my cllenTs requests, and are also relevant to her dolma Seesilkelly, but not Inked to einaDs, text messages and ether correspondence and docannents reconfirm 8847 Thaw Pl. end your orient Allen .knee' intentions s, adicos willizegardto Ms. Fadrot clans. I look-formai to herein from you again very con
Respectfully.
01110 08/rnf co Cearth Fake Flo EXHIBIT A - Reply to Response - Mtn to CompelNoDepo Sep 29. 2015 3:16PM 0577 Jones P 2 Sep 29 2015 2:49PM Law Office of Olga grown No 812b 1 FILED 9/30/2015 11:57:51 AM Donna Kay McKinney Bexar County District Clerk Accepted By: Frances Gonzales LAW OFFICE OF OLGA BROWN 111 SOLEDAD, MATE1725 SAN ANtromo, TEXAS 78206 (210)226-1550 71ELE.COPIER (218)228.1884
aepternbar 29, 2015
Via facsimile (210) 447-8036 Justin Barbour Schmoyer Reinhard L• LP 17806 11.1 10 West. suite 400 San Antonio, TX 78257
Re: Cause 2014. CI-16674, Cearth Faire v. Fmp Se Management Group, Llc D/I3/A Food Management Partners, Lic, All Jones Lk, Allen J Jones, Individually, And Peter Donbavand, Individually, In The 180uT Judicial District, Bexar County, Texas
RULE 11 AGREEMENT Dear Mr. Barbour
Would you consider dropping the Amended Agreed Docket Control Order, currently in place now, to avoid me having to go to Monitoring Court to get relief from the Level 3 Docket Control Order If you do agree, please sign below and I will file this agreement with the Court and forward a conformed copy.
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Received Time Sep 29 3:09FM Sep 30 EXHIBIT 2615 11:41AMA - Reply to Response - Mtn to CompelNo Depo OW Jones
r4111111 SCIiMOYER REINI-IARD LLP Alitornejs al Law
17805 III 10 West, Suite 400 • Gen Antonio, Texas 70257 • Offiee: 210 447 0033 • Fax: 210 447.8035 • vAvw Sc. Hp cam
JUSTIN BA REOT1i% 2x0.447,8033 (tel ) 210.447.8036 (fax) jbarbour@stAlp coin
September 30, 2015
VIA FACSIMILE 210.226.1884 Olga Brown Law Office of Olga Brown 111 Soleda.d, Suite 1725 San Antonio, Texas 78205
Re: Cause No 2014-CI-16674; Cearth Faire v. FM? SA Management Group, LLC d/b/a Food Management Partners, LLC et al; In the 150th Judicial District Court, Be= County, Texas. Our File No 108 023
Dear Ms :Brown: This letter follows up on-ourc:Cinie ronsjesterdWreglirdifietliedepO§itiblislontilifiz Jones and...jason-ICepp; yhichzare,:yreyfriOri- rfOFFiatif,TOciblier,72,7/0-tligAirirexi stoirina'—irei—ks-i indicated, annnexpected conflict h-a's arisen, which will unfortunately prevent my attendance at those depositions. From our conversation, I understood these depositions would be continued until a later date, and I specifically offered October 26-29 as dates on vvhich the witnesses and I were available to reschedule the depositions. This letter is simply meant to confirm that these depositions' October 2 setting have in fact been cancelled. If this is incorrect, please notify me of such at your earliest opportunity but, in any case, no later than 2:00 p m. this afternoon. Alternatively, if you wish to discuss alternate dates on which the depositions may be rescheduled, I am available at your convenience
As always, thank you fin your courtesies in this matter
JB:vp
Received rime Sep 30. 11:34M EXHIBIT A - Reply to Response - Mtn to CompelNoDepo Sep 30 2015 11:41AM 0580 Jones P 1
a SCHMOYER REINHARD LT AItorn.): at law
17806 Ili 10 West SUifer 400 San Ante*, Texas 78257 • OftiCe: 210447.8033 • Fax: 210 447 8038 .1.vmar sitirp corn
Fax Date: September 30, 2015
To: Company: Fax: Phone:
Olga Brown Law Office of Olga Brown 210.226.1884 210.226.1550
From: Company: Fax: Phone: Justin Barbour Schrnoyer Reinhard LLP 210.447.8036 210.447.8033
Pages:
Re: Cearth Faire v FMP, eta! 108.023
0 Urgent El For Review 0 Please Comment El Please Reply E.1 Reese Recycle
Please see the following attachment ORIGINAL(S) WILL NOT FOLLOW
The information contained in this facriini re mange it Attorney olient ptivi iced and cooficknOokand is intended only for the use ofitic individual or ecifiV named above.Ifthe reader of this easesageisnottheintendedreciprenI,ortheemployeeoragentresponsibletodeliverittotheintendedreofelenr,yon aro hereby notified ass any dissemination. distribution or conyiris of this communication is strictly prohibited Ilya% have received this communionliOn i i meal Ocala nod& ns immediarety hy telephone, and return the original message to vs by mar] ac the address g ova,
Received Time Sep 30 11:34AM FileTimeEXHIBIT A FaxService - ReplyPage to Response 2 of 7 - Mtn to Compel Depo Jones
CAUSE NO. 2015-CV-05205
ALL JONES, LLC, 11\T THE COUNTY COURT
Plaintff;
v. AT LAW NO, 3
CEAR 111 FAIRE,
D4fendants. BEXAR COUNTY, 1EXAS
lailitTIEFFISMOTIONLTOWASH:DEPOSITIONAM/CrOTALLENEXI. ANDIOR MOTION FOR PROTECTIVE ORDER
Plaintiff All Jones, LLC, files its Motion to Quash Deposition Notice of Allen J. Jones
and/or Motion for Protective Order pursuant to Rule 192.6 and 199.4, and in support thereof
respectfully show as follows:
1. Plaintiff All Jones, LLC initiated this action on. August 25, 2015, seeking an
appeal of the decision of the Justice of the Peace, Precinct No. 2, Bexar County, Texas, in an
underlying eviction proceeding.
2 Itp—faTabiErk2P13:1Pifert iiifi—er* her NOtiveofiritawgrTakethe- Oral
anskVidataped-Deposition-ofAllerdlones. x. 1, Jones Depo. Notice.. Defendant unilaterally
set Mr, Jones' deposition for September 23, 2015, just three business days after service thereof,
despite never having first conferred with Jones, his counsel, or counsel for Plaintiff All Jones,
LLC.. Id. Moreover, Defendant set this deposition for her own counsel's office.
3 Mr. Jones is not a party to this proceeding in his individual capacity, as the
deposition has been noticed, Additionally, the deposition notice does not seek the testimony or
appearance of a corporate representative of Plaintiff, as provided for in the Texas Rules of Civil
Procedure.
1 Received Time Sep 22 4:29PM FileTimeEXHIBIT A FaxService - Reply Page to Response 3 of 7 - Mtn to Compel Depo Jones
4. Due to previously scheduled matters, Mr. Jones is unavailable to attend his
deposition 011 the date unilaterally noticed by Defendant. Accordingly, Plaintiff objects to the
time and place designated for his deposition and moves to quash the deposition notice pursuant
to Rule 199.4. See T. R. Cm. P. 199 4.
5. For the foregoing reasons, pursuant to Rules 192.6 and 1994, Plaintiff Ali Jones,
LLC objects to, moves to quash, and moves for a protective order as to Defendant's Deposition
Notice of Allen J, Jones. This Motion to Quash and/or Motion fig Protective Order is filed
timely, within three business days of Defendant's service of the underlying Deposition Notice.
See nx, R. QV. P. 4, 199 4. The time and place noticed by Defendant is unreasonable, as is the
form and substance of the deposition notice itself. Plaintiff therefore respectfully requests that
this Deposition Notice be quashed and/or that a Protective Order be entered with regard to this
Notice. Plaintiff also prays the Court grant it any other relief to which it may be entitled.
Rob6rt N. Ray State Bar No. 15606500 7272 Wurzbach Road, Suite 1401 San Antonio, Texas 78240 (210) 733.4399 (210)733-9819 (facsimile) robertmay@sboglobal.not
ATTORNEYS FOR PLAINTIFF ALL JONES, LLC
Received time Sep 22. 4:29PM FileTime EXHIBIT A FaxService - ReplyPage to Response 4 of 7 - Mtn to Compel Depo Jones
I hereby certify that a copy of the foregoing document was served via electronic service and facsimile to:
Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, Texas 78205 (210) 226-1884 (facsimile) argyle2@sbegiobal ,net
on this 22nd day of September, 2015.
Robert N. Ray
Received Time Sep 22 4:29PM EXHIBIT A - ReplyPage to Response 5 of 7 - Mtn to Compel Depo Jones
EXHIBIT I
Received Time Sep 22 4:29PM FileTimeEXHIBIT A FaxService - Reply Page to Response 8 of 7 - Mtn to Compel Depo Jones
CAUSE NO. 2015M/0620S
ALL JONES, LLC 6 IN THE COUNTY COURT Plaintiff 6 6 V. 6 AT LAW NO. 3 6 CEARTH ,FAIRE 6 Defendant 6 BEXAR COUNTY, TEXAS
DEFENDANT'S NOTICE OF INTENT rO TAKE THE ORAL AND VIDEOTAPED DEPOSITION OF ALLEN 4 JONES, PRINCIPAL OF ALL JONES, LLC
TO: Plaintiff, Allen J Jones, by and through his attorney of record, RoBERT RAY. 7272 Wurzbach Road, Suite 1401, Texas 78240
Please take notice that on the 23rd day of September 2015 and Continuing thereafter from the day until completed Defendant by and through her
attorney of record, Olga Brown, will take the vat and videotaped deposition of Plaintiff, ALLEN J JONES, pursuant to Rule 198 of the Texas RUles of Civil Procedure at 1:30 p.m at the Law Office of Olga Brown, 111 Satedad, Suite
1728, San Antonio, Texas 78205, Your attention is directed to the penalties set forth in Rule 215 of the
-foxes Rules of Civil Procedure for failure of the deponent to appear or to comply With the discovery requested Such deposition and answers shall be taken to be used and read In evidence upon trial in the above styled and numbered cause relevant to Issues
raised by Defendant. Cam& toi5cvos2a Dyindottrt Wake °Awe ta Thum Me CA2i ondlirleolopeiDepottIon Mier, norm: Paga
Received Time Sep 22 4:29PM EXHIBIT A - Reply Page FaxService to Response 7 of 7 - Mtn to Compel Depo Jones
You are Invited to attend and examine the witness.
RespactMlly submitted,
LAW OFFICE OF OLGA BROWN
SY: / Ma &awn OLGA BROWN State Bar No. 03165500 111 soledad, Suite 1726 San Antonio. Texas 78205 210/226-1550 Telephone 210/228..1884 Facsimile 6rdytanaboglobalnet ATTORNEY FOR Cearth Palm
CERTIFICATg OF SERVIU,
I do hereby certify that on the 18th day of Sep 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Defendant's Notice of Intent to Take the Oral and VIdeotaped Deposition of Allen J Jones was furnished to:
ViN e•serve Mr. Robert N Ray Lew Office of Robert N Ray 7272 Wurzbach Rd, Suite 1401 San Antonia, TX '78240 Olgp Brow?? OLGA BROWN
Cam 21)(5CV05205 DOnOaneanattaaafin tint taltka the Ora! and Viarplaind Deporlikh of;Affon)Jones Page 2
Received Time Sep 22 4:29PM FileTimeEXHIBIT A FaxService - Reply Page to Response 1 of 7 - Mtn to Compel Depo Jones
The Law Office of Robert N Ray Received Tire 09/22/15 04:35 PM
TRCP 21a. - Service by Telephonic Transfer As provided by I RCP 21a, this document is sent to you using FileTime Fax Service.
Date: 09/22/15 04:35:PM To: Olga Brown Fax Number: (210) 226-1884 From: Cheryl Henson The Law Office of Robert N. Ray 7272 Wurzbach Rd., Ste 1401 San Antonio, TX 78240 Phone Number: (210) 733-4399 Re: Service Document(s): Motion (No Fee) (20150922162149661 pdf)
Case Number 2015cv05205 Court bexas:cc Jurisdiction Bexar County - County Clerk Total Number of Pages: 7 (including cover sheet)
PRIVILEGED AND CONFIDENTIAL This facsiMile transmission may contain privileged confidential information and is intended for the sole use of the addressee If you axe not the intended recipient, or the person responsible to deliver the message to the intended recipient, you are hereby advised that any dissemination, distribution or copying of this communication is prohibited If you have received this facsimile in error, please notify the sender and destroy all copies of the original facsimile message
Received Time Sep 22 4:29PM EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
CAUSE NO. 2014-CIA 6674
CEARTH FAIRE IN THE DISTRICT Plaintiff
V., § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, LLC, DIBIA FOOD MANAGEMENT PARTNERS, § LLC, ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND § PETER DONBAVAND, INDIVIDUALLY
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFF'S SECOND AMENDED NOTICE OF INTENT TO TAKE THE ORAL. AND VIDEOTAPED DEPOSITION OF DEFENDANT, ALLEN J JONES
TO: Defendant, Allen J Jones, by and through his attorney of record, Christine E Reinhard, 17806 IH 10 West, Suite 400, San Antonio, Texas 78257
Please take notice that on the 2nd day of October 2015 and continuing
thereafter from the day until completed Plaintiff, by and through her attorney of
record, Olga Brown, will take the oral and videotaped deposition of Defendant,
ALLEN J JONES, pursuant to Rule 199 of the Texas Rules of Civil Procedure at
9:00 a m at Schmoyer Reinhard LLP, 17806 IH 10 West, Suite 400, San Antonio,
Texas 78257.
Your attention is directed to the penalties set forth in Rule 215 of the
Texas Rules of Civil Procedure for failure of the deponent to appear or to comply
with the discovery requested. Cause No. 2014-C11E674' Plaintiff's 5econdA►nended Notic-e of intent to Take the Oral and Videotaped Deposition of Defendant Allen I Jones Page 1 EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
Such deposition and answers shall be taken to be used and read in
evidence upon trial in the above styled and numbered cause relevant to issues
raised by Plaintiff.
BY: /s/ Olga Brown OLGA BROWN State Bar No 03155500 111 Soledad, Suite 1725 San Antonio, Texas 78205 2101226-1550 Telephone 210/226-1884 Facsimile Argyle2@sbcolobal.net ATTORNEY FOR Cearth Faire
I do hereby certify that on the 28th day of August 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff's Second Amended Notice of Intent to Take the Oral and Videotaped Deposition of Defendant, Allen J Jones was furnished to:
VIA FACSIMILE (210) 447-8036 Christine E Reinhard SCHMOYER REINHARD LLP 17806 1H 10 West, Suite 400 San Antonio, Texas 78257 n+O.C._a_4/( Is/ Olga sown OLGA BROWN
Cause No 2014-CI-16674 Plaintiff's Second Amended Notice of Intent to Take the Oral and Videotaped Deposition of Deftndant,Allen ir Jones Page 2 EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN 111 SOLEDAD, SUITE 1725 SAN ANTONIO, TEXAS 78205 (210) 226-1550 T ELECOPIER (210) 226-1884 ArovIe2(asboarobalnet
August 28, 2016
Via facsimile (210) 447.8036 Justin Barbour Schmoyer Reinhard LIP 17806 IH 10 West, Suite 400 San Antonio, TX 78257
Re: Cause 2014-CI-16674, Cearth Faire v. Fmp Sa Management Group, Lk D/B/A Food Management Partners, Lic, All Jones Lie, Allen J Jones, Individually, And Peter Donbavand, Individually, In The 15e Judicial District, Bexar County, Texas
Re: Deposition Notices
Dear Mr. Barbour:
Enclosed please find Deposition Notices for Defendant Allen J Jones and Defendant Jason Kemp..
I have noticed these far enough in advance for scheduling issues, if any, to be resolved
Please give me a call if you wish to discuss this matter further. Thank you.
Res • ectfully, -\
OLGA B OWN OB/mf Enclosures (as stated) cc Cearth Faire Fife EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones P 1 * Memory TX Result Report ( Aug 27 2015 3:17PM ) * * * 0 Law Office of Olga Brown 2) 210-226-1884
Date/Time: Aug 27 2015 2:00PM
File Page No Mode Destination • Pg(s) Result Not Seat
7945 Memory TX 4478036 P 5 OK Dial at 3:15PM
Reason for error Hang Up or line fail E E 3) No answer E 5) Exceeded max E-mail size EE :facsimiio connection U sl
LAW OFFICE OF OLGA BROWN 113 SOLIC07,0. 8Une.1725 SMANTONATOCAM205 12102244%41 l'EUXOTICT1210 2244(41 sgosssextroutsteet August 28201$ MtaftommeatopsintaMM assanDsubsur SetumnretRenlmniLIP itUCMIOWestSulteMV ganAntenloIXTBBV Re: Cause2014-0-16674,CesdhThOlsv.nrrpSalVfa.nagementenvp. Jc EVEARodfiffaruccementardners,114,NUonesMAConJdones. irmilvidaely,AMPotorDeurbavond, indityldually, In The I50P Jurrictal District, Be= County Tee
Re: Deposition Notices Deer Mt Bgilsoun
Enclosed please find Deposition (+hitless for Defendant Alien J Jonas and Defendant Jason Kemp. I have noticed these iv enough in edvroce for scheduling issues, if any, to be resolved. Please give Flo a call If you wish lo discuss this raster further Thank
OrJmi Endoscresinstabld) 06 Cosath Faire EXHIBIT Jol 9 2015 2:05PMA - Reply to Response - Mtn to CompelNoDepo 0281 Jones P 2
pinSCHMOYER ea REINHARD r nrovs at law I.I.P 17808 11-110 West, Sae 400 *San Antonio. Texas 78257 • Office; 210 447 8093 *Pale 210.447 8038 * wWW..ar-Hp coal
AMIN BARBOUR 210 417 8033 (to ) 210447.8036 (fax) ,jbarbour@sr ..11p corn
July 9, 2015
VIA FACSIMILE 210.226.1884
Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, Texas 78205
Re: Cause No. 2014-C1-16674; Cearth Faire v. FMP S'.,4 Management Group, LLC d/b/a Food Management Partners, LLC et al; ba the 150th Judicial District Court, Bexaz County, Texas Dear Ms. Brown: As you will recall, last week the parties agreed to continue their hearings on various matters, including Defendant Jason 1Cemp's Rule 91a Motion to Dismiss and the .parities , ..discoverrinotiongcto allow them an opportunity to confer regarding their underlying disputes. Please indicate dates and times when you might be available to schedule a call regarding these matters and the parties' requests for relief, so that such a conferral conference can be scheduled. In the event the parties are unable to reach an agreement as to any of the motions at issue, would recommend we set such motions fox hearing sometime during thervrabfrilY-2
Please let me know if you have any questions, and I look forward to heating from you.
Sincerely,
JB/vp
Received Time Jul 9 1:59PM EXHIBIT A - Reply to Response - Mtn to CompelNoDepo Jul 9 2015 2:05PM 0281 Jones P 1
SCHMOYER REINHART) LLP Aiturhait,. as l am
17806 li-f 10 West. Suite 400 • Sen Amonio Texas 782$7 • Office: 230 447 .8033 • Fax 210 447 8036 www sr:
Fax Date Jury 9, 2015
To: Company: FMK: Phone: Olga Brown Law Office of Olga Brown 210.226.18134 21 0.22a 1660
Fromc Company: Fax; Phone: Justin Barbour Schmoyer Reinhard LLP 210.447.8036 210.447.8033
Pages: (9--•
Re: Cearth Faire v FMP, et a/ 108.023
0 Urgent ET Par Review 0 Please Comment 0 Please Reply 0 Please Recycle
Reese see the following attachment ORIGINAL. (S) WILL.NOT FOLLOW.
1.12 t1116701021°11"nTatacd M this iaesireile ntOOanyc is catenickaor Priv; railed and COn'f deotial. and is intended only tar the rise Of die individual a entity named above. if the render of di is massage is not tho intended reolnient or dm employee or agent reaponsrblo tei deliver it to the intended recipient, you ere hereby notified :hal any disseminati on, distribution or copying of this communication is strictly prohibited. If you have reeohled this communication in error, please may Re irnTriedialcly by Telephone, and return the original message to us by wail at the addresi above
Received Time Jul 9 1:59PM EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN 111 SOLEDAD, SUITE 1725 SAN ANTONIO, TEXAS 78205 (210) 226-1550 TELECOPIER (210) 226-1884 Arqyre2(8sbccilobalnet
April 6, 2015 < Via facsimile (210) 447-8036 Justin Barbour Schmoyer Reinhard LLP 178061H 10 West, suite 400 San Antonio, TX 78257
Re: Cause 2014-CI-16674, Cearth Faire v.. Fmp Sa Management Group, Lic D/B/A Food Management Partners, Llc, All Jones Lic, Allen J Jones, Individually, And Peter Donbavand, Individually, In The 150th Judicial District, Bexar County, Texas
Re: Reschedule of Depositions of Parties C Dear Mr. Barbour: Please be advised, that today, I will have a copy of the transcript from Judge Sakai's hearing of February 24, 2016 During this hearing, he denied your Motion for Protective Order . Please see the attached 1----------1 The Defendants have yet to produce complete Responses to our Discovery Requests Therefore, I will 4e_ortacting your office for another date r the depositions of Defendant Allen J Jones, Defendant Peter Donbavand, and acy Amass, Director of HR -------- L.----- r The incomplete Responses are contrary to Judge Sakai's ruling. Therefore, pleaseprovide me with alternative dates with sufficient time that wo allow me time to file a Motion to Compel if necessary.
If you wish to discuss this matter further, please give me a call, or we can discuss further April 7, 2015 Respectfully,4.
OLG BR OB/mf Enclosures (as stated) cc Cearth Faire File EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones P 1
* Memory TX Result Report ( Apr 6 2015 10:26AM ) * *
W. (ags,V Olga Brown Date/Time: Apr 6 2015 10:25AM
1115 Memory TX 4418036 P 1 OK
Reason for error E 1) Hang up or line f i ) E 3) No answer E LI" facsimile connect ion E 5) Exceeded max E—ma 11 size
LAW OFFICE OF OLGA BROWN litta1COACt SLUMS ISAHANTMO.11%.310205 i )V-071.1/414 BRAT24:11=1:Na April 6. 2015
Vial calm (210) 44743035 Just] Barbour Schrnoyer Reinhard !LP 17808 FH 10 ma, SUNG 400 San Antorde.7X 782S7
Re: Cause 20140-16674, Coat& Faint t Pmft Sat Management &rap, Lla TWA Food Management Parfner4 Lk A 11 Jones Ur, Allen &nos, fntrIvItlisaffy. f Peter DonbrwandAfuaRy, Jr The 150e reelciti DishicA Bexer County, Texas
Re: Reschedule of Deocrieent enlarges near fir Sargon
Retro be edvlsed. that lee.% wil hams copy of the treemeptikomJudge Seket heedm or F 6 ey24.2015 Meng elFsbeenhe he cleared your Motion for Pretedive Order Pkese Lee the duke.
The Datendante helve yet be produce corollate Responeee to =Discovery Requeste, Therefore, 1 Mr! be certteing your dilicefor meter eatefarthe emollient of DelenitotAllen Datendart Peter ricelhavand and11.20Y Anna& Director O'ER
The toornplete Remeneee are contrary to Judge Sakai t Mng. Therofcre. plate molds mowth alternative delee %eh eteStient erne the2 would lakve rne time to filo aNFamie Compellf neeentiely
Yen with le decade lhie meauferthar please ;Ma meeoatorw e e.an amuse further April 7 ais.
AA_ "edruji5r gW °OM Enema= (assetee) co Death fake EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN 111 SOLEOAD, SUITE 1725 SAN ANTONIO, TEXAS 78205 (210) 226-1550 TELECOPIER (210) 226-1884 Arcwie2asbcglobal.net
March 19, 2015
Via facsimile (210) 447-8036 Justin Barbour Schmoyer Reinhard LLP 17806 10 West, suite 400 San Antonio, TX 78257
Re: Cause 2014-CI-16674, Cearth Faire v Frnp Sa Management Group, Llc D/B/A Food Management Partners, Lk, All Jones Lie, Allen J Jones, Individually, And Peter Donbavand, Individually, In The 150th Judicial District, Bexar County, Texas
Dearer Barbour:
Regarding the deposition of my client, I have the following availability;
May 20, 2015 May 21, 2015 ay 28, 2015
Please let me know what day works for you Thank you and I look forward to discussing other discovery issues
Of course, I am available by telephone if you wish to discuss and or confer on these.
" ei speclr i 4, tri 1)/(9-vilk P91( ti; c4B"OWN OB/mf Enclosures (as stated) cc Cearth Faire File EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones P
* 5.4 Memory TX Result Report ( Mar 19 2015 3:39PM ) * * * 1) Law Office of Olga Brown 2) 210-226- 1$84
Date/lime: Mar 19 2015 3:38PM
1007 Memory TX 4478036 P 1 OK
Reason for error E Hang up or line fail E 2) Busy E 3) No answer E 4) No facsimile connection E 5) Exceeded max E—mail size
LAW OFFICE OF OLGA BROWN .111 MEDALS SUM /725 aieemnoNio.sexAS 73205 cao)228nisso TACCOPICap10)2264664 teasitasteir2ZelaS March 1B„ 2015
Wa facolmllo (210) 447-8528 JuStin Barbee/ • SottleOyer Releruled LLP 17B081f110Wost, autta 400 San Aritonto, TX 78257
Re: Cause 201441, 28S74, Comfit F&ro v. Fmp Su Munogoaxurt Group, Lk OSA Food Managefnant Purtuers, Uc, AkJonou Lk7, Allen J Jones burvkhaly, And Pater Of:cabal/anal, flullvklou7K fn The15CP•JudiClal OLshict, Boxer County Texas
Dear Mr Barbour. Regarding tho depOS.Von of my dent I Imo the foaming svallabrpr.
May211 2015 May21, 2015 May28. 2015
Please let me knosvwhet day works lOr you Thank you and Mak fenvard to a:mussing other discovery issues.
Of courses ] am available by telephone IT you wiah to down and &confer on them:,
OBIrre Enclosures (es OW) co Gas* Faso File EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN 111 SOLEDAD SUITE 1725 SAN ANTONIO, TEXAS 78205 (210) 226-1550 TELECOPIER (210) 228.1884 Anwle2esbcglobal.net
Mai•ch 12, 2015
Via facsimile (210) 447-8036 Justin Barbour Schrnoyer Reinhard LLP 178061H 10 West, suite 400 San Antonio, TX 78257
Re: Cause 2014-CI-16674, Cearth Faire v Fmp Sa Management Group, Lie 1)/B/A Food Management Partners, Lie, All Jones Lie, Allen J Jones, Individually, And Peter Donbavand, Individually, In The 150th Judicial District, Bexar County, Texas
Dear Mr, Barbour:
Thank you for your letter of March 9, 2015, wherein in part, you provided potential dates for depositions of Tracy Amass, Peter Donbavand, and Allen Jones..
As to your timeframes for. Allen Jones, and with respect to the Agreed Docket Control Order, I'm sure you'll see the need for a much earlier date than you propose for Allen Jones.
Plaintiffs deadline regarding Experts is June 4, 2015 I'm sure with your experience, and given the discovery arguments already made to Judge Sakai on February 24, 2015, you'll see the need for an earlier date I'm sure you'll be able to impress the same upon your clients.
Accordingly, you'll find Amended deposition notices for Amass, Donbavand and Jones, in April 2015
Of course, I am available by telephone if you wish to discuss and or confer on these
OB/nTf Enclosures (as stated) cc Cearth Faire File EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
* Memory TX Result Report ( Mar 12 2015 4:34PM ) * * * 1) Law Office of Olga Brown 2) 210-226-1884 '
Date/Time: Mar 12 2015 1:27PM
6963 Memory TX 4478036 P 7 OK Dial at 4:20PM
Reason for error E Hang UP or lino fail E 2) Busy E 3 No answer E 4) No facsimile connection E 5 Excceded max E-mail size
LAW OFFICE OF OLGA BROWN s'iscammksmmins mthwrommwmo ;u4N(ti41. Brembingstut March122615 210) Via faosiretto t 4474035 Justin Barbour Soh mayor Reinhard UP 178081H 10 West, 6410400 San Antonio, TX 78257 Re: Cause20/4-CI-15574„ Caiuth Palm% Fmp Ss. Managamoni Cirozip, Lk 1J/111A Food Mandgantant Partnam Lk, Mimes 1.4 Aran J Jones; Incrivklaaay, And Fktlf Donbavanct IndrIddually, In The 1509' Judicial Mid Boxer County, Texas
Dear Mr. Butner:
Thank you for your totter of March 9, 2015, whereto In part you provided potential dates for depositions of Tracy Amass Peter Donbavand. and Allen Jones. . As to younilmeframes for Alien Jonas, and with respect to theAgread leshet Control Order I'm 'sure welt see tbo need for a much earttesdate than you propose forAl len Jones
Plaintiff's deadline regardreg Experts is Juno 4, 2015. Pm suns with your enoedenco, wad Oven the siltreovery ammonia lioady model° Judge Sakai on February 24„ 2015, you'll see the mood for an earner data Pm sure you'll be obits to Impress the earner upon your diorite
Accordingtr,9oull1hxfAmendeddoposiriannotioesforAmass. Donbavand and Joan In April 2015.
Of course, I am available by telephone if you wish to discuss and or =for on those
aml co CearRiNfro FOe EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones Mar 9 2015 1:21PM No 7996 P2
• • . . etitor.;c_is of Law
178051.11 10 West Suite 400 • San Antonio, Texas 78257 Office: 210.447 8033 • Fax: 210.447.8036 • www sr4.3p com
JUSTIN BaitBoUR 210 447 8033 (ter.) 210,447.8036 (fax) jbarbour@g4lp com
March 9, 2015
VIA FAX - 210.226.1884 Olga Br own Law Office of Olga Brown 111 Soleclad, Suite 1725 San Antonio, IX 78205
Re: Cause No 2014-CI-16674; Cearth Faire v FLIP SA Management Group, LLC dla Food Management Partners, LLC, et al; In the 150th Judicial District Court for Bexar County, Texas Dear Ms Brown: This letter is sent to confer on several issues regarding the above-styled lawsuit First, I am in receipt of your draft proposed orders regarding the parties' February 24, 2015 hearing on Plaintiff's Motion to Compel and Defendants' Motion for Protective Order and to Stay Discovery My proposed revisions to those orders are attached for your review. As to the order OP Defendants' Motion fox Protective Order, X have simply specified that the order pertained to Plaintiff's Second, Third and Fourth Sets of Interrogatories and Requests for Production, which were the only discovery items pending at the time of our hearer Further, as you know, DaridtM"rEfe--- key :2—F&FREy err timery—Obrecti'ons responses to these requests, in accordance with the Court's bench ruling. As to the order on Plaintiff's Motion to Compel, it is, in my opinion, improper for this order to address each of Plaintiff's dozens of interrogatories and requests fox production individnally, and then to compel certain, specific responses to each You will recall that Plaintiff announced for a one-hour hearing in Presiding Court on February 24 Judge Sakai expressly indicated it would take a "day or more to individually go line-by-line through Plaintiff's written discovery requests. Because that far exceeded the time available to the parties, fudge Sakai heard (1) arguments regarding Defendants' request that discovery be stayed pending resolution of the Rule 91a Motion and (ii) very generalized arguments regarding the nature and scope of Plaintiff's written discovery requests Judge Sakai ultimately determined that a discovery stay was inappropriate in this case, and that Defendants should produce responsive documents notwithstanding the forthcoming Rule 91a hearing However Judge Sakai's bench ruling and
Received Time Mar. 9 1:17PM EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones Mar 9 2015 1:21PM No 7996 P 3
Olga Brown Law Office of Olga Brown March 9, 2015 Page 2
judge's notes do not address Plaintiff's written discovery requests individually, nor do they identify specific documents to be produced in response to those requests. As such, Defendant& attached proposed order on Plaintiff's Motion to Compel tracks both the language of Judge Sakai's judge's notes, as well as his ruling from the bench Of course, I welcome any further dialogue regarding the scope and language of these orders If you have concerns regarding the foregoing or wish to discuss this matter anther, I am available at your convenience. Second, you previously wrote regarding deposition dates in this lawsuit. At present, the requ "messes axe available during the following time frames:
Tracy Amass: April 7.10 or 13-14; Peter Donbavand: April 7.10 ox 13.14; and • Allen iones:May 11-15 or 18-20,
As to your request for Ms. Jason Temp's deposition, you know that Mx, Kemp is the Chief Financial Officer of Defendant FMP We are unaware of allegations ox evidence demonstrating that Mt Kemp has the requisite unique knowledge to justify his apex deposition in this matter As such, given the facts presently available, we would oppose Mr, Kocap's deposition on this basis However, as with any matters regarding pertaining to this lawsuit, I am happy to confer and discuss this issue further Finally, please provide dates during the above-referenced thnefiames when you and Ms. Faire would be available to set hex deposition.
tin. Barbour
Enclosure(s)
178061H 10 West, Suite 400 • San Antonio Texas 782.57. Office: 210 447 6033 • Far 210,447 8036 • wm,y,sr-Ite.com
Received Time Mar 9' 1:11PM EXHIBIT A - Reply to Response - Mtn to Compel NoDepo Feb 25 2015 3:28PM 7939 Jones P 2
17806 11-1 10 West, Suite 400 San Antonio, +ems 78267 .'Office: 210 4470033. Fag 210.447 8036 WA* sr ttp corn
JUSTIN BARBOUR 210.447 8033 (tel..) 210.447.8036 (fax) jbEirboux@szap cord
February 25, 2015
VIA Roc - 210_2261884
Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, IX 78205
Re: Cause No 2014-CI-16674; Cearth Faire v PM? SA Management Group, LLC dba Food Management Partners, LLC, et al; In the 150th Judicial District Court for Bexax County, Texas
Dear Ms. Brown:
I am in receipt of your letters dated today and yesterday regarding depositions in the above-styled matter. My clients and Lug conferr.ing-w-gardinj their availabilitygd potential deposition dates. Both of your letters have threatened a "Motion for Sanctions fox Resisting Discovery"; however, I would kindly ask that you refrain from filing such a motion until Defendants have been afforded a reasonable time period to identify available dates, in light of the Court's ruling yesterday
Along those same lines, I understood you would draft and forward fox my review an order formalizing Judge Sakai's rulings on Plaintiff's Motion to Compel and Defendant's Motion fox Protective Order, I have not yet received any such draft If I missed the proposed order, please let me know Alternatively, if the order has not yet been drafted, please let me know when I may expect to receive it.
Justin Barbour
Received lime Feb 25 3:25PM EXHIBIT A - Reply to Response - Mtn to CompelNoDepo Feb 25 2015 3:28PM 7939 Jones P 1
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17808 Hi 10 West Suite 400 • Serf Ante*, Texas 78257 Office: 210447 8033 • Fax: 210.4418038 • www s r-Ilp corn
Data February 25, 2015
Olga Brown Law Office of Olga Brown 210.226.1884 210226.1550
From: Company: Fax: Phone: Justin Barbour Schmayer Reinhard LIP 210.447.8036 210447.8033
Pages: 2 Re: Ceadh Faire v FIVP, et 81 108,.023
CI Urgent lid For Review El Please Comment Please Reply 0 Please Recycle
Please see the following attachment ORIGINAL(S) WILL NOT FO1 LOW
The information contained inxlast obi,* Immo I22;t0Iiiiip:Olift( privileged and confides's:W.' oncl ialcodod orily for the use dist ;U0 iadtivklust or ratty Issuisisd. obovo. et:to raider **II& =sag? is loos to iarandott =Wont or the empLoyse or 2gent rev onaiblo to deliver iota tho ititidedrecipicar, you aro Lowery iiiosieed that clitmew.miori, tributioa or copyist/ of tbi$ litlotlY Prohibited ItrYo‘ W6,60101:4 ti ia coomitoricazied trf0e, pleats 1101* us in:MA0anatebY tettpbonc, and morn to oienal =map taus by mad s4 tbo actdcotto above
Received Time Feb 25. 3:25PM EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones
LAW OFFICE OF OLGA BROWN 111 SOLEDAD, SUITE 1725 SAN ANTONIO, TEXAS 78205 (210) 226-1550 . TELECOPIER (210) 226-1884 Arcivle2(asbccilobal.ne. t
February 24, 2015
Via facsimile (210) 447-8036 Justin Barbour, Schmoyer Reinhard LLP 17806 IH 10 West, suite 400 San Antonio, TX 78257
Re: Cause 2014-C1-16674, Cearth Faire v. Fmp Sa Management Group, LIc D/B/A Food Management Partners, Lic, All Jones tic, Allen J Jones, Individually, And Peter Donbavand, Individually, In The 150th Judicial District, Bexar County, Texas
ATTEMPT TO CONFER OVER DEPOSITIONS OF JONES, DONBAVAND AND AMASS
Dear Mr Barbour.:
Would you kindly advise as to the availability of Mr. Jones, Mr. Donbavand and Ms. Amass, for their oral and videotaped depositions in your office.
As you might recall, the Plaintiff properly and reasonably noticed:
Allen J Jones, on December 17, 2014 Peter Donbavand on December 17, 2014 Tracy Amass on January 28, 2015.
You will also recall, that your clients moved to Quash the three depositions referenced above.
As noted in Plaintiffs Motion to Compel the depositions of Jones and Donbavand, your client's motion to quash was defective in that TRCP 192 6(a) requires that "The motion must identify a reasonable time and place for the deposition with which the party or witness will comply
Kindly consider providing dates and availability for the three noticed deponents.
Fair warning that this letter may be Exhibit #2 in a future motion for sanctions for resisting discovery, pursuant to. Rule 2153, which I hope does not become necessary, and that you will also tender Mr Kemp for his deposition promptly .
Thank you and 1 look forward to hearing from you.
OB/rnf cc Cearth Faire File EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones P 1
* * * Memory TX Result Report ( Feb 25 2015 1:13PM ) * * * 1) Law Office of Olga Brown 2) 210-226-1884
Date/Time: Feb 25 2015 1:12PM
File Page No Mode DestinOiqn Pg(s) Result Not Sent
6876 Memory TX 4476036 P 1 OK
Reason for error E Hang uo or line fail E 3 No answer EE Lus%csirnile e0nnoe ion E 5 Exceeded max E—mail size
LAW OFFICE OF OLGA BROWN Hf VOLIMAD.SATEITS WANTOID,TAXASIlda TiLeag2 2264395. , ttle)221-1114 techultuu,s1c5 February 24, 2015 InifacCone (2l0)4474036 -CM Barbour Scharf:wet ROlobord LLP 17205 114101Vast, 601.400 Sun Ardoriu,TX 7025T RAC C10.1502014•0110674, Calandra v. Amp Se Maragomont Group. Lk LUi Food MativeinsatPadoots5 LI4 Vonvo JJ4 ARO J.bnotr. ladviduagi4 And Peter Danbaveng kritifeltra2y, In The 1$0.kunolli Olshitt Cc ATTEmPTTO CONFER OVEREEPOSITIORS,OF JONES. DONIWANDAMO_AMASS Marl& Baltouc Woukt you /dna/ OM* is lo The Cmfabldly of Mx. Jones, Mg Doeb000nd =dna MC:* fortherronlendvideotguddcpesWonernynerdflw. As you night rc4e4.1he nektarproudy and reasonably notkat Mena Jona, on Monte( 17.2014 Peter 0onbcrend on December 17, 2014 TreoyAcasy onJurcury29,2015. Wavily atm recak thotyourerents caved to Quash Ma Rues dopoalSoba referenced above, • As Wed in Margin Moen 10 Compel the depositions of Axes and bonbavand, your clisasmoitont wash was (Infective ha that TRC.P102.504 mans Ce1 'The cordon rant Men* feidanable me CI Mt 11)06 depoultlencithwhiohtc pufig or u0ness w7todmpy' Cindy convider weylding Cges , urx1 maibblOyfeelhe three nuked *went!. . • Far/win Math/614h; may be Ebt0,01214 ututure motion for condom for tosIsSep acme% pursuant lo Rub 2/5.S. whIchl hot:4,6Na% not beoune neoessmy told that you will Also lender Lk rucnpfchba deposition ;comp/. 1111011 you end 1 looklonemdto bearing-00cm. en Coarth Fare Pob EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones LAW OFFICE OF OLGA BROWN 111 SOLEDAD, SUITE 1725 SAN ANTONIO, TEXAS 78205 (210) 226-1550 ELECOPIER (210) 226-1884 Ariple2asbcolobal.net February 23, 2015 Via facsimile (210) 447-8036 Justin Barbour Schmoyer Reinhard LLP 17806 IH 10 West, suite 400 San Antonio, TX 78257 Re: Cause 2014-C1-16674, Cearth Faire v. Fmp Sa Management Group, Lic D/B/A Food Management Partners, Lic, All Jones Lic, Allen J Jones, Individually, And Peter Donbavand, Individually, In The 150th Judicial Distritt, Bexar County, Texas Re: Availability of Jason Kemp for deposition ATTEMPT TO CONFER OVER AVAILABILITY Would you kindly advise as to the availability of Mr. Jason Kemp, for his oral and video taped deposition in your office for a date 33 days out so that I can also include a request for documents? Mr Kemp's testimony is relevant to the claims of this case, even if there is an adverse ruling on Ms. Faire's claim to ownership of the home at 8647 Timber Pl. Mr Kemp is a Co-Founder and Chief Financial Officer for the Defendant companies Immediately prior to Ms Faire's termination, Mr Kemp was an additional direct supervisor of Ms. Faire Mr. Kemp has personal knowledge of the oral gift of real estate from Mr.. Jones to Ms Faire So.far every single notice of deposition has bee 4r4ria... . Further, all subpoenas for records relevant tome cads in this case ave also been quashed . Fair warning that this letter may be Exhibit #1 in a future motion for sanctions for resisting discovery, which I hope does not become necessary and that you will tender Mr Kemp for his deposition.. Thank you and I look forward to hearing from you ry OLGA BR °Bird cc Cearth Faire File EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones P I * Memory TX Result RepOrt ( Feb 24 2015 2:39PM ) * * 1) Law Office of Olga Brown 2) 210-226-1884 Date/Time: Feb 24 2015 2:39PM 6871 Memory TX 44/8036 P 1 OK Reason for error E. Hang up or line fail E 2 Busy E S No answer E 4 No facsimile connection E 5 Exceeded max E—mail size LAW OFFICE OF OLGA BROWN PIADAIMSSITglr4 SANplt0140.)=.47020$ YetCOPOWIttiMes‘ has1.1.2tookErdead Febeguy 23, 2016 ✓fa facetmak (210)4041035 JuatIn Barbour &Moyer Relit:cud LLP iTHOG al 10 West. suns 400 Ban Adocio„ 7X T8257 Re: Caned 20140148874. Co'adto Fake v. Fmp Sa Maitage.maa &Dup. Lic MVA Food Managament Partners, Lk, At Jams LI4 Men J Jones keniforao* A n d Pater Donbaysmt Individual/A. The 150'h Judicial Dlateitt Dewar county, Taxes Re: Avallobllity *Hawn Kemp for deposltion Warr& BEER/Our, Would you *idly advise as foam amTabary of ligr- Jason Kam% for Moo;o1 and videotaped deposit On in your office fora *do 33 days out so that I can also include a „wariest for ciot=onts? Mt Komp's !Mania./ Ls joksaat to fro clakna"of !Ms cam, oven if tharo la an adverse Ming on Ms. Fairo'norran to ha awn of thofnrne al 1[647 toter Pt Mr. Ksmp fs a Co-Fouader and Wel rinalacial Mellor the Derandant compardca Irnmedfobsty prior to Ms. Pain's termination, Mr. Kano was an addidonal Croat supor4scr of Ms. Feats, Mr. Komp hasperaCiaai laccayledge of the ortal gift of real estate from Mr,Jones to Ain ratio, Solar every single no*o of deposit/on has boon combat!. Forgot. all . • ookmonastor recordi relevant to the clairea to !Ma ease have also boon (pasha Far wantiag that thks latter may bo EAT:I:14#! In ufuiuo motionfor =ram .4or molstIng discouesy, which Moo doss rot booms naaessary and that yOto tendert& Kamp for Ks daposglon.„ • 71)ankyou and foroard to haaang /ram YOU- ROSpectrUlly. OLGA B Oatrd • cc emu Fob EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones LAW OFFICE OF OLGA BROWN 111 SOL MAD, SUITE 1725 SAN ANTONIO, TEXAS 78205 (210) 226-1550 TELECOPIER (210) 2264884 AmvIe2asbcalobai. net February 20, 2015 Via facsimile (210) 447-8036 Justin Barbour Sohmoyer Reinhard LLP 1'7806 IH 10 West, suite 400 San Antonio, TX 78257 Re: Cause 2014-CI-16674, Cearth Faire v. Fmp Sa Management Group, LIc D/B/A Food Management Partners, L1c, All Jones Lk, Allen J Jones, Individually, And Peter Donbavancl, Individually, in The 150th Judicial District, Bexar County, T'exaS Dear Mr Barbour: This letter' follows my request to you that Mr Allen Jones be present at the hearing for the Motion for Sanctions I have filed against him. The fact that he is the CEO of his companies does not shield him for wrongdoings in connection with the claims filed against him. 'The hearing on Tuesday, February 24, 2015 is not merely "a discovery hearing". My motion complains about his misconduct. Mr Jones is the actor in the claims, including retaliation„,. It is reasonable to expect that if my allegations are without merit, he would be the courtroom to testify. Please reconsider y2...... .usglo1 have Mr. Jones attend the sanctions hearing., Thank you and I look forWard to hearing fron767-51:1 Ily, OB/rrif cc Cearth Faire File EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones P 1 * Memory TX Result Report ( Feb 20 2015 4:04PM ) * * * mmlgev Olga Brown Date/TiMe: Feb 20 2015 4:03PM File Page No Mode Destination Pg(s) Result Not Sent 6858 Memory TX 4478036 P 1 OK Reason for error. Hang or Tirte fail 5 2) BUSY E 5 4 No facsimile connection E 5 Exceeded max E—mail size LAW OFFICE OF OLGA BROWN 111SOLIIDAO, SUfre1725 SAMMITISNAIWASYMIS IFIZZ2R(210Mlass aMglftadi& February 24, 2015 vtafamtmtle;210) 4478026 Anal Borba, ththmoyet Reinhard LLP 1740611-110threst, setts 404 Sap Astorio„ 77E257 Pm Cause2414C1-14074,Comiti Alto v. Fmp Se hisaapernent Growx aim Food ManeoenuodParinors,114 AD Jones LIG Allen JJoria4 InaislunDy,And ParceDoobeven4 Indivkituite In The iSdh.tecrIcial DJsfrlek Boxer County, Tome Dear Ur. Barbour. Xrder 10110we my terttlest to you that Mr. Allen ',Jones he mutt attic thawing for the Motion for Sant loes 1 have filed avant KM. The fact that he is tho CEO able companies deer not shield him for wrongdoings in canneetbn with the claim filed esethst tam. The beating oil;Mouthy. February 24, 2015IS not men* 'a discovery heeling'. My motion complains about Ids misconduct Mr Joon Is the acior to all the crakes, Mcluding rotagetkin It Is reescresble to copilot that X my tiZegatIons are wXhout merit he week! be in the tourfroom to testify PlOgtos rimeralder your refteet to haw Mr. Jones attend the SandionShearkig Thtudc you mut I look fotward to hoarthg from you le / * wijrj v i 421o1 m Coalh Fitc EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones Feb 18 2015 8:23AM No )899 ITARDtill; 111 i:!1 V_. P: Iv . 'FrVA 178061H 10 West; Suite 400 San Antonio, Tens 78257 • Office: 210.447 8033 • Fax; 210447 8056 • www corn JUSTIN BARBOUR 210.447 8033 NO 210 .447.8036 (fez) jbarbow@sr-lip eon February 18, 2015 VIA FAX - 210.226.1884 Olga Brown . Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, TX 78205 Re: Cause No 2014-CI-16674; Cearth Faire v FMP SA Management Group, LLC dba Food Management Partners, MC , et al; In the 150th Yudicial District Court for Bexar County, Texas Dear Ms Brown: This letter is sent in response to your February 17, 2015 discovery conferral letter sent in the above-styled matter. Please accept this correspondence as Defendants' response to that letter --------- Defendant contends that any farther discovery in this matter is inappropriate until the Court has disposed of Defendants' Amended Rule 91a Partial Motion to Disixdss, which is set fox hearing +7n. March 18, 2015 The resolution of that Motion could largely narrow Plaintiff's claims and the scope of this litigation. Thus, any interim discovery requests, responses, or supplementation risks wasting the parties' time and resources on matters that would ultimately be irrelevant to the issues in this lawsuit, To that end, yesterday we filed Defendants' Mott; or Protective Order and to Stay Discovery, which is set for hearing on Friday, February 20, 2015 [ Please feel free to contact me at your convenience if you wish to discuss this matter further Received Time Feb 18. 8:20AM EXHIBIT A - Reply to Response - Mtn to CompelNoDepo 7899 Jones Feb 18 2015 8:23AM P 1 .• Sc 0 • • •• - • +.••• Attantajf t21 .1c1p HAIUDILP 17808 IH 10 West Sub 400 • San Antonio, Texas 78257 • Office: 210A47 8038 • Fax 210.447.8036 • www.5r-IIp..com Data February 18, 2015 Olga Brown . . Law Office of Olga Brown 210226.1884 210.226.1884 From: Company; Fax; Phone: Justin Barbour Schmoyer Reinhard LLP 210.447.8036 210.447.8033 Pages; 2 . Re; . Cearlh Fake v AMP, et al 108 023 0 Urgent I21 For Review LI Please Comment 0 Please Reply LI Please Recycle Please see the following attachment ORIGINAL(S) WILL NOT FOLLOW . The ieformetion *mined fuie tudiiguie• =Fang° is axoreey-ollese privileged sadcomSderdal, EA41.{9 iatendod only for tho WO of ate indhittnal or ;peaty eatioa ebove% Mho tesjor of tbis maw is am Mc fronded tacipient or tho employee or Meet assponsalge to deliver it to the intended recipiont, you ere hereby notified &at soy dissoreinutioa. distriburioo or ooPY41% of this omeamaiestion soletly Xf you luve received this commnnieation laaver,p)caaeaoderes immkti6way by telephone,. end realm the origizal raeesage 1).$ bytogi mo aidatis shove Received Time Feb 1$ 8:20AM EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones Feb 17 2015 5:08PM h 1898 P2 E2 .411 SCHUMER, ._... -A REINHARD LIT Attorneys at /aw 17806141 10 West, Suite 400 • San Antonio Texas 78257 • Office: 210„447,3033 • Fax: 210 447 8036 • www sr-lip am JUSIIN BARBOUR 210 447..8033 (tel ) 210447.8035 (fax) jbarbour@sr JIp.cora February 17, 2015 Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, Texas 78205 Re: Cause No 20.14-CH6674; Cearth Fafre v PMP SA Management Group, LLC d/b/a Food Management Partners, LLC et at; Tn the 150th Judicial District Court, Bexar County, Texas Dear Ms.. Brown: Enclosed please find a copy of Defendant's Motion for Protective Order and to Stay Discovery, which was filed this afternoon. Please note that thrlird-5iiiiSEITrg-set-for heating on February 20, 2015, at 8:30 a in in the Presiding District Court, Bexar County, Texas. We will forward an executed copy of the Flat upon receipt from the District Clerk Please contact Christine or me if you have any questions. C tin Barbour Reeived TiO Feb 1/ 5:O5.M EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones Feb 11 2015 5:08PM No 7898 P 1 r4 SCIIMOYER ma REINHARD LLP Attorney/ at gum. 178081N 10 West, Suite 400 • S2/1Arltonlo, Texas 78257 • Office: 210 447 8033 • Fax 210 4478038 • mew sr4rp..oam Fax Data February 17, 2015 r To: Company: . Fax: Phone: Oba Brown '. Law Office of 0 fga Brawn 210.226.1884 210.226.1884 From: Company: Fax: Phone: Justin Barbour Schrnoyer Reinhard LLP 210A47.8036 210.447.8033 Page= • Re; Coarth Fairs v FIWP, et al 108 023 El Urgent Si For Review D Please Comment ri Please Reply 0 Please Recycle Please see the following attachment ORIG1NAL(S) \NIL NOT FOLLOW.. Thank you.. Tho information contained in this floshnito messego is arromoyoliont ptivitoged and confidential, and is innande d only for the vso of the individost or entiv limed above. If tlte reader of this =sago is nor tho in onelt4 to* kat. or the omployee or agent responsibto to claw ie ro inthodedreeipient,,yoo are hereby notified That any dissoteastion; distribtaionot copying of ibis communkszion is stria fly prohib iced. If you have:solved this cototovoioatiOzi in error 1:110ASC notitk ns immediately by telephone, and reran the original 'message to its by mail at the ocutress above Received Time Feb, 17: 5:05PM C. EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones Feb 6 2015 4:12PM No 7847 SCHMOYER a REINHARD LLP Attorneys at _Zak) 17806 IH 10 West, Sotto 400 46an Antonio, 'Tens 782574 Office: 210 447 8033 Fax: 210..447..8036 • www,ss,Ifp. cam „Its Inv DARR= 210.447 8033 (tel..) 210 447.5036 (fax) jharbour@sr-11p coin Febnlary 6, 2015 Olga Biown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, TX 78205 Re: Cause No 2014.. CI-16674; Ceanh Faire v FMP SA Management Group, LW dba Food Management partners, ac, et al; In the 150th Judicial District Court fox Bexar County, Texas This letter is sent with regard to Plaintiff's Motion to Compel, which was apparently filed today in the above-styled matter,. As I understand your Motion, you have asked the Court to generally override each and every of Defendants' objections to Plaintiff's First Set of 32 Interrogatories and 33 Requests for Production, both of which were served on every Defendant to this action As such, your Motion amounts to a blanket request that the Court override all objections to 260 different written discovery requests.1 As an initial matter, Defendants note that Plaintiff failed to confer regarding the substance of the Motion prior to its filing. Just yesterday afternoon, we received correspondence from your office asking fox supplementation of Defendants' discovery responses. This letter never requested a blanket withdraw of all objections to Plaintiff's 260 written discovery requests. Nonetheless, in light of your request as to "[w]hen fyou could] expect to receive supplementation" of Defendants' discovery responses, counsel was evaluating their ability to do so Yet, not even 24 hours later, we received your Motion to Compel. Accordingly, and in Notably, the 260 written discovery requests comprise only Plaintiff's Pirst Sot of Interrogatories and Requests fox Production. Since that time, Plaintiff has served her Second Set .of Interrogatories and Requests fox Production (14 each) on January 29, 2015, Third Set of Interrogatories and Requests for Production (two each) on January 30, 2015, and Fourth Set of Interrogatories and R.equests for Production. (11 each) on February 5, 2015. As each set of written discovery has been served on each Defendant to this lawsuit, Plaintiff has now cumulatively' served 476 written discovery requests in this three-and-a-half month-old lawsuit, Received Time Feb 6. 4:09PM EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones Feb 6 2015 4:12PM No 7847 Olga Brown Law Office of Olga Brown February 6, 2015 Page 2 response to your correspondence dated yesterday, we would respectfully suggest that your Motion to Compel is premature and request a reasonable amount of time in which to provide such supplementation. Second, we note that your Motion. to Compel is grossly inaccurate in its characterization of Defendants' discovery responses Plaintiffs' First Set of Interrogatories and Requests fox Production are, by and large, grossly overbroad in their temporal and subject matter scopes, seek a host of patently irrelevant information, and are generally served for little more than the purposes of harassing Defendants Thus, to protect their interests against Plaintiffs' overbroad and overreaching discovery, Defendants properly asserted objections where appropriate. Despite having asserted appropriate objections, Defendants nonetheless responded to the overwhelming majority of Plaintiffs' Interrogatories and Requests fox Production, Specifically, Defendants responded as follows: • Defendant Allen Jones responded to 30 of 33 Interrogatories and 19 of 33 Requests for Production; • Defendant Peter Donbavand responded to 31 of 33 Interrogatories and 30 of 33 Requests for Production; • Defendant All Jones, LLC responded to 30 of 33 Interrogatories and 17 of 33 Requests for Production; and • Defendant FM? SA Management Group, LLC responded to 30 of 33 Interrogatories and 24 of 33 Requests for Production hi light of these responses, your sensational claim that "Defendants are trying to usurp the Court of its power" is simply inflammatory and lacking any basis whatsoever, Defendants have fully complied with and responded to Plaintiffs non•objectionable discovery requests.. Per your correspondence sent vesterdat Defendants are evaluating their ability to further supplement 'written discovery responses and will do so as soon as practicable. In the meantime, if you contend that any of Defendants' objections to specific Daterrogatories or Requests fox Production are inappropriate, we welcome an opportunity to confer on this issue. To that end, please identify the discovery requests for which you so contend and your basis fox contending that the objections should be withdrawn, and we would be happy to discuss this issue further Third, your Motion to Compel claims, without any basis, support, ox explanation, that Defendants "axe withholding material documents and testimony relevant to" Plaintiff's claims. Please immediately state the documents you contend are in Defendants' possession, and the discovery requests to Which they are responsive Finally, in addition to failing to confer on the substance of your Motion to Compel, we similarly note that you have failed to confer on a hearing date.. We would respectfully urge that the parties attempt to resolve these discovery matters without the need for Court intervention. ro ,1•11011110•1111111•11111,••• 11806 HA 10 West, Suite 400 • San Antonio, Texas 78257. Office: 210 447 8033 • Fax: 210.447,8036 • ww.v.spiln.com Reeived Time Feb 6 4:09PM EXHIBIT A - Reply to Response - Mtn to Compel No Depo 7847 Jones Feb 6 2015 4:13PM Olga Brown Law Office of Olga Brown February 6, 2015 Page 3 that end, we request Plaintiff respond to each of Defendants' request; set forth above Howevel, should you insist on proceeding with an unnecessary and unjustified heating on this Motion to Compel, bath Ms. I axeunavailable on the cuirent hearing date, February 12, 2015 In that case, we would request you please provide-T otlates on which you are available, such that we may identify a mutually available date on which to present this unnecessary matte/ to the Court Please contact Christine Reinhard or me if you wish to discuss this matter further • 17806 111 10West, Suite400 • San Antonia Texas 78257. Office: 210 447 8033 • Fat 210447 8026 r-110.corrt Received Time Feb 6 4:0$PM EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones Feb 6 2015 4:12PM No 7847 P 1 2ttoivey s' td:a 00: o; A:; ••••.....•=••••• 17808111 10 West Stilto 400 • San Antonio, Texas 78257 Office: 210.447 8033 • Fax 210 447 8036 • wvAvsnllp,com Fax Date: February 6, 2015 To: Company: Fax: Phone: . . Oita Brown Law Office of Olga Broim 210.2261884 290.226484 r- From: Ckmmipany: Fax: Phone: Justin Barbour , Schrnoyer Rdnhard LIP _ 210A47.8035 210.447.8033 Pages: 4 Re: Cearth Faire v EMP, et al 108 023 ❑ Urgent 10 For Review 0 Please Comment 0 Please Reply Li Please Recycle Please see the following attachment ORIGINAL(S) Wit L NOT FOLLOW, The information contained is Ihtis facsimile rtsivemge is attonasy.olienr privileged and esadootiaL ed is ittrioded only tor tho use orthe individual or entity =maul &ova. Ittho sower of this message fa not the Ulteuded te oipfeet. or the employee or imont responsible to deliver it to the intended seebleeraoo um hereby notified that fty dissemination, dietrilution or copying of this corm maceii'oe iSatriodY prohibited riYeu Let* re ceived Ade coconwP;INOn in=for, &me toreros itarnedrately by telephone, Acid return the original message to us by rosa st the address above. Received Time Feb 6 4:09PM EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones SO- MOYER REIN HARD LLB' Attorn eys at Ica, 10•111•MMI••••••••••• 178061F1 10 West, Suite 400 • San Antonio, Texas 78257 • Office: 210 447 8033 • Fax: 210 447 8036 • www sr-lip corn JUSTIN BARBOUR 210 447 8033 (tel ) 210 447 8036 (fax) jbarbour@st-Ilp corn February 4, 2015 VIA U.S. FIRST CLASS MAIL Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, IX 78205 Re: Cause No. 2014•CI-16674; Cearth Faire v FMP SA Management Group, LW dba Food Management Partners, LIC , et al; In the 150th Judicial District Court for Bexar County, I exas Enclosed is a file stamped copy of Defendants' Response to Plaintiff's Motion to Compel Defendant Allen J Jones' and Defendant Peter Donbavand's Depositions The Response was hand-filed this morning, when I appeared for the hearings on the parties' Motion to Compel and Motion to Quash, which I had understood to have been reset to today. These motions were not announced in Presiding, however, nor did I see you there. Thus, I was unable to hand-deliver the ReSponse to you, as I had intended, and have instead amended the Certificate of Service to reflect service via U S. First Class Mail Please contact Christine or me if you wish to discuss this matter further Enclosure(s) EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones LAW OFFICE OF OLGA BROWN 111 SOLEDAD, SUITE 1725 SAN ANTONIO, TEXAS 78205 (210) 226-1550 TELECOPIER (210) 226-1884 Argyle2(ftbcglobal.net January 14, 2015 Via facsimile (210) 447-8036 Justin Barbour Schmoyer Reinhard LLP 178061H 10 West, suite 400 San Antonio, TX 78257 Re: Cause 2014-CI-16674, Cearth Faire v Fmp Sa Management Group, LIc D/B/A Food Management Partners, Llo, All Jones Llc, Allen J Jones, Individually, And Peter Donbavand, Individually, In The 150th Judicial District, Bexar County, Texas RULE 11 AGREEMENT CONCERNING SETTINGS OF JANUARY 15, 2015 This letter is to confirm and thank you for the Rule 11 Agreement in the above matter, as requested via telephone this date, pursuant to Rule 11 of the Texas Rules of Civil Procedure that we have agreed to reset the hearings from January 15, 2015, to January 22, 2015, at this time on: 1. Plaintiff's Motion to Compel Depositions of Defendants Allen J Jones and Peter Donbavand 2 Defendants' Motion to Quash Depositions Notices and/or Motion for Protective Order The parties have also agreed to a November 2, 2015 trial, and are anticipating an agreed docket control order will follow shortly If you are in agreement with the above please sign below and return to our offices. A conformed copy will be returned to your offices Your prompt attention to this matter is greatly appreciated. Thank you. OLGA BROWN AGREED: Justin Barbour Attorney for Defendants EXHIBIT A - Reply to Response - Mtn to Compel Depo Jones LAW OFFICE OF OLGA BROWN 111 SOLEDAD SUITE 1725 SAN ANTONIO, TEXAS 78205 (210) 226-1550 TELECOPIER (210) 226-1884 Argyle2Asbccifo ba ',net December 18, 2014 Via e-serve Christine E Reinhard/Justin Barbour Schmoyer Reinhard LLP 17806 IH 10 West, suite 400 San Antonio, TX 78257 Re: Cause 2014-CI-16674, Cearth Faire v. Fmp Sa Management Group, LIc D/B/A Food Management Partners, Llc, All Jones LIc, Allen J Jones, Individually, And Peter Donbavand, Individually, In The 150th Judicial District, Bexar County, Texas Dear Ms. Reinhard and Mr. Barbour: Thank you for your one letter of December 17, 2014, responding to our many letters and requests dating back to December 3, 2014 .. Please advise as to availability,prjor to Janua 7, 2015, or make sure. youjgkeza-klate-,teilaiii7lii4your-mOtionsjp, Please advise as to the location and time where my client can use her key to access the vehicle and retrieve her and her family's belongings from her vehicle in the next three days, Thank you for the educational comment as to what should not be filed with the Court Please review the Texas Bar Journal, November 2014 issue, Pages 898-901, and specifically, Page 901, #7 regarding e-serving of discovery.. To date, we have utilized the e-serve option for the majority of that which has been sent to you thus far.. This method obviously saves postage and paper, and so far, neither my EFSP, nor my computer has complained of being burdened by my office.. Thank you, Respectfully, /s/ Olga Brown OLGA BROWN OBfmf cc Cearth Faire Robert Ray, Attorney for ALL JONES, LLC and Allen J Jones, via email RobertnRavasbcdlobal.net File Appendix 2 FILED 10/6/2015 4:23:36 PM Donna Kay McKinney Bexar County District Clerk Accepted By: Consuelo Gomez CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF’S AMENDED RESPONSE TO DEFENDANT KEMP’S RULE 91a MOTION TO DISMISS and REQUEST FOR ATTORNEY FEES NOW COMES PLAINTIFF CEARTH FAIRE, who respectfully requests this court to deny Defendant Jason Kemp’s Motion to Dismiss pursuant to Texas Rule of Civil Procedure 91a, and in support of such request Plaintiff would show the court she has properly plead her claims against Defendant Kemp, and would show as follows: Defendant Kemp is requesting that his Motion to Dismiss pursuant to Rule 91a also be dismissed because two other defendants in this lawsuit have been dismissed by a trial court. 1 Plaintiff Faire would show that the two prior dismissals are not relevant to this Motion in that when the earlier motion is considered by the appeals court it will be reviewed de novo. It is a legal question as to whether Plaintiff properly plead her claims. The trial court’s determination of whether the Plaintiff’s claims against Defendants have any basis in law and in fact are legal questions. It is clear Rule 91a is analogous to pleas to the jurisdiction. See Stedman v. De Paz, 2015 Tex. App. LEXIS 9326 (Tex. App. Corpus Christi Sept. 2, 2015). In reviewing Kemp’s Motion to Dismiss, this court must only look at the pleadings on file in regards to the claims against Defendant Kemp and not look to other trial court’s rulings. In making its determination this court may not consider evidence in ruling on this motion and must decide this motion based solely on the Plaintiff’s pleading of the causes of action. Did Plaintiff give “fair notice” to Defendant Kemp? Absolutely. This court is required to accept the factual allegations in the claims against Defendant Kemp as true at this stage of the proceedings. The Appellate Court is also required to accept the factual allegations in Plaintiff’s Sixth Amended Petition as true. 2 In the previous hearing on the motion to dismiss, Defendants’ counsel mislead the trial court by engaging the trial judge in an analysis of the facts, which is prohibited by Rule 91a. Whether Plaintiff can prevail on the facts alleged, is irrelevant. The facts are not subject to analysis at this stage of the proceedings, because the trial court is required to accept Plaintiff’s factual allegations as true. See Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App—Houston [14th Dist.] 2014, pet denied. Therefore, Plaintiff objects to any and all arguments or statements that another trial court has granted a similar motion to dismiss. Plaintiff can provide the trial court transcript where the Rule 91a was considered on a motion for summary judgment standard, meaning an analysis of the facts as plead by Plaintiff. Defendant Jason Kemp, is Co-Founder, and Chief Financial Officer, and one of the Owners of the Defendant Corporations. Kemp holds himself out to the public as being extremely experienced in finance, accounting and corporate IT accounting. As such, Defendant Kemp was well aware of Defendant Jones’ business and personal activities, which included details of Plaintiff’s compensation and Defendant Jones’ disparaging treatment of females, including, but not limited to a judicial admission in a Bexar County District Court by Jones of having purchased a female in the Dominican Republic for his own needs. Defendant Kemp is strictly liable for Quid Pro Quo Harassment because he is well aware Defendant Jones used his actual authority to harass Plaintiff. 3 Defendant Kemp, as Chief Financial Officer, is aware of Defendant Jones’ demands of Plaintiff to work for approximately five months to assist him in his divorce defense, by caring for his infant child on a 24 hour basis, in addition to her other job duties. The demands are in violation of well established wage and hour laws. Defendant Kemp, as Chief Financial Officer condones Defendant Jones’ “human trafficking” as judicially admitted. Defendant Kemp, as Chief Financial Officer, is well aware that wages owed to Plaintiff under the Fair Labor Standards Act, Wage and Hour Division, exceed the value of the house that Defendant Jones gifted Plaintiff. Plaintiff contends the wages owed to her are approximately $153,162.98. Defendant Kemp, as Chief Financial Officer, is also well aware that improper deductions were willfully made from Plaintiff’s wages, in violation of the Texas Payday Law. See Exhibit A incorporated herein in its entirety. Notwithstanding that, a trial judge has dismissed Plaintiff’s claim of oral gift of real estate against Defendant Jones and Defendant Peter Donbavand, Defendant Kemp has liability independent of the other Defendants for fraud. It is well established that fraud can be the basis of a conspiracy claim. Defendant Kemp perpetrated fraud against Plaintiff by denying her fair and just compensation and by the pretext she was getting the Kemp House. Plaintiff Faire has timely filed an amended petition addressing all the complaints contained in the Defendants’ Amended Rule 91a Motion. Plaintiff has again 4 succinctly addressed all elements of each and every cause of action and supports allegations with facts that “a reasonable person could believe the facts plead” . Tex R Civ P 91a.1. Plaintiff would further show that “if the allegations, taken as true, together with inferences reasonably drawn from them” would entitle her to present her case to a trier of fact and secure a judgment for the three causes of action filed against Defendant Kemp, in the capacity he has been sued. Tex R Civ P 91a.1. By his Rule 91 a Motion, Defendant Kemp challenges Plaintiff’s claim for an oral gift of real estate, which Plaintiff would show is enforceable by equity, since the legal and factual requirements of the three elements for enforcement have been plead. Defendant also challenged the claim of conspiracy between Defendants Kemp, Jones and Donbavand. All of these Defendants were acting outside the course and scope of the corporate business and for their personal purposes, and therefore, are not entitled to defend based on Intra-Corporate Immunity Doctrine. Rule 91a expressly prevents a court from considering evidence in making its determination of a Rule 91a motion. Tex. R. Civ. P. 91a.6. The question in deciding whether a claim has a basis in law is whether “the allegations state a cause of action.” See Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex .. App-Houston [1st Dist.] 2006, no pet); see also Hamilton v Pechacek, 319 SW3d 801, 809 (Tex App -Fort Worth 2010, no pet) (claim has arguable basis in Iaw unless claim presents an "indisputably meritless legal theory"). 5 Plaintiff’s claim for sexual harassment falls within the protection of employees by statute: Tex. Lab. Code Ann Chapter 21, which is “designed with the objective to carry out the purposes of Title VII of Civil Rights Act of 1964, including its prohibition of discrimination on the basis of sex.” The Texas Workforce Commission has accepted her claim of sexual discrimination against Defendants FMP, ALL JONES, LLC, Jones and including Kemp. Plaintiff would show “It is well settled that, notwithstanding the requirements of the statute of frauds, a parol gift of real estate will be enforced in equity upon establishment of the fact of (1) a present gift; (2) possession under the gift taken and held by the donee with consent of the donor; and (3) permanent and valuable improvements made on the premises by donee in reliance of the gift with the knowledge and consent of the donor. To establish an oral gift of real property, Plaintiff merely must show: (1) a present gift to her by Jones; (2) that she took immediate possession of the described property with Jones’ consent; and (3) she made permanent and valuable improvements to the described property with Jones’ knowledge and consent.” McCuen v. Huey, 255 S.W.3d 716, 726-727 (Tex. App. - Waco 2008); Flores v. Flores, 225 S.W.3d 651, 655 (Tex. App.– El Paso 2006, pet. denied); see also Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191, 192-93 (1951) (citing Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921)). 6 Plaintiff’s claims for oral gift of real estate began with Defendant Kemp being the original co-actor in the gifting. Kemp’s wife inherited the property the subject of this lawsuit and used such property to defraud Plaintiff. See Exhibit B. For Defendant Kemp to assert that he is merely an “employee” is ludicrous, as he is co-founder and co-owner of the defendant companies, by whom Plaintiff was employed, and as such, has strict liability for the harassment. Further, Defendant Kemp was a manager of Plaintiff, and as such, knew or should have known of the harassment. Plaintiff has properly plead her claim of sexual harassment and/or discrimination pursuant to the TCHRA and her claim has been accepted by the Texas Workforce Commission Civil Rights Division, and the EEOC. Plaintiff’s claims against Defendant Kemp are not barred by the doctrine of Res Judicata. Defendant Kemp was not a party to the trial court’s ruling of dismissal of Plaintiff’s claims for oral gift of real estate. The prior ruling, which will definitely be appealed, does not dismiss Defendant Kemp. Kemp, as CFO and monitoring all finances is liable to the Plaintiff. 7 VI. Faire’s Claim of Fraud as it Relates to Oral Gift of Real Estate Is Valid and Enforceable Defendant Kemp, as Co-owner, Co-Founder, and Chief Financial Officer assumed liability for the fraudulent scheme of Defendant Jones, the CEO and co- owner, by providing the home Plaintiff Faire was to accept as an oral gift of real estate to reduce or disallow the wages and expenses due her from employment services in the Dominican Republic which was a 24/7 care of Jones’ infant. Defendant Kemp, as Chief Financial Officer, knew of other employment law violations that harmed Plaintiff Faire. Plaintiff has given Defendant Kemp, “ fair notice” of her claims against him, fraud, conspiracy and strict liability for the quid pro quo sexual harassment by the CEO and co-owner/business partner Defendant Jones. The bar for avoiding dismissal by Texas Rule of Civil Procedure 91a is very minimum. All of Plaintiff’s claims are valid causes of action in Texas. The facts available to the Plaintiff support her claims. Defendant Kemp has failed to timely object to the discovery requests of the Plaintiff, and therefore has waived all objections. Plaintiff Faire asserts that once the electronic correspondence traffic between Defendant Kemp, the CFO and Defendant Jones, the CEO is provided, this court will find liability, and find support for exemplary damages against Defendant Kemp. 8 CONCLUSION & PRAYER Plaintiff Faire’s claims against Defendant Kemp are properly plead and supported by facts or inferences thereof that would support a denial of the Defendant’s Rule 91a request for dismissal. Plaintiff Faire’s claims against Defendant Kemp for quid pro quo sexual harassment are actionable in that he knew Defendant Jones used the actual authority of the Defendant Corporations to harm the Plaintiff. Plaintiff Faire asserts that everyone who has been seriously harmed as Plaintiff has been, deserves her day in court. Plaintiff relied on the fraudulent representations made by Defendant Kemp, the Chief Financial Officer, and she has been harmed by all Defendant parties in this lawsuit. Defendant Kemp’s complaints as alleged in the Rule 91a Motion are not valid, and in some instances moot. Defendant Kemp cannot complain about the oral gift of real estate because the pleading requirements have been factually met and properly Defendant Kemp has a personal grudge in denying the oral gift of real estate, namely retaliation, Defendant Kemp has a personal purpose of financial gain. His concerted actions are definitely outside the course and scope of the corporate business. 9 Plaintiff has properly pled her claim of sexual harassment/retaliation and the claim under TCHRA has been accepted. Mediation of this claim has been extended to the parties. Defendants declined to mediate. Plaintiff asserts that if Defendant Kemp insists on going forth with his Rule 91a Motion, this Court will find it is groundless and frivolous. Plaintiff seeks attorney fees and costs accordingly. Plaintiff prays this court deny the motion and grant all other and further relief to which she is entitled. LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net By: /s/ Olga Brown_________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff I do hereby certify that on the 6TH day of October 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Amended Response to Defendant Kemp’ 91a Motion to Dismiss and Request for Attorneys Fees was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN 10 EXHIBIT DurEA4-41 BIT Aub *** IX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000000668 Check Date: 5/23/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 800.00 15,769.20 GROSS PAY $1,576.92 $15,769.20 DENTAL DENTAL INSURANCE $10.28 102.80 HEMP HEALTH EMPLOYEE ONLY $38,50 385,00 LOAN LOAN REPAYMENT $99.97 99.97 TOTAL DEDUCTIONS $148.75 $587.77 Federal Tax $176.00 1,760.00 FICA Social Security Tax $9474 947.45 FICA Medicare Tax $22.16 221.58 TAXES WITHHELD $292.90 $2,929.03 NET PAY $1,135.27 $12,252.40 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $1,135.27 Sick Balance 0.00 DEF-CF-00658 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000000710 Check Date: 6/6/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 880.00 17,346.12 GROSS PAY $1,576.92 $17,346.12 DENTAL DENTAL INSURANCE $10.28 113.08 HEMP HEALTH EMPLOYEE ONLY $38,50 423.50 LOAN LOAN REPAYMENT $99.97 199.94 TOTAL DEDUCTIONS $148.75 $736.52 Federal Tax $176.00 1,936.00 FICA Social Security Tax $94.75 1,042.20 EXHIBIT A FICA Medicare Tax $22.16 243.74 TAXES WITHHELD $292.91 $3,221.94 NET PAY $1,135.26 $13,387.66 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation. Balance 0.00 111000025 586034451754 $1,135.26 Sick Balance 0.00 DEF-CF-00659 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC FAIRE, CEARTH Employee ID: REDACTED 8647 TIMBER PLACE SSN: Check Number: DD000000000000000758 Check Date: 6/20/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 960.00 18,923.04 GROSS PAY $1,576.92 $18,923.04 DENTAL DENTAL INSURANCE $10.28 123.36 HEMP HEALTH EMPLOYEE ONLY $38.50 462.00 LOAN LOAN REPAYMENT $99.97 299.91 TOTAL DEDUCTIONS $148.75 $885.27 Fecieral Tax $176.00 2,112.00 FICA Social Security Tax $94.74 1,136.94 EXHIBIT A FICA Medicare Tax $22.15 265.89 TAXES WITHHELD $292.89 $3,514.83 NET PAY $1,135.28 $14,522.94 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451734 $1,135.28 Sick Balance 0.00 DEF-CF-00660 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN. Check Number: DD000000000000000829 Check Date: 7/3/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 1,040.00 20,499.96 GROSS PAY $1,576.92 $20,499.96 DENTAL DENTAL INSURANCE $10.28 133.64 HEMP HEALTH EMPLOYEE ONLY $38.50 500.50 LOAN LOAN REPAYMENT $99.97 399.88 TOTAL DEDUCTIONS $148.75 $1,034.02 Federal Tax $176.00 2,288.00 FICA Social Security Tax $94.75 1,231.69 EXHIBIT A FICA Medicare Tax $22.16 288.05 TAXES WITHHELD $292.91 $3,807-74 NET PAY $1,135.26 $15,658.20 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $1,135.26 Sick Balance 0.00 DEF-CF-00661 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000000841 Check Date: 7/18/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY 841,000.00 80.00 $1,576.92 1,120.00 22,076.88 GROSS PAY $1,576.92 $22,076.88 DENTAL DENTAL INSURANCE $11.31 144.95 HEMP HEALTH EMPLOYEE ONLY $63.26 563.78 LOAN LOAN REPAYMENT $99.97 499.85 TOTAL DEDUCTIONS $174.56 $1,208.58 Federal Tax $172.13 2,460.13 FICA Social Security Tax $93.14 1,324.83 ..M_-_ -±taLRX3_ EXHIBIT A FICA Medicare Tax $21.79 309.84 TAXES WITHHELD $287.06 $4,094. 80 NET PAY $1,115.30 $16,773.50 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $1,115.30 Sick Balance .0.00 DEF-CF-00662 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000000884 Check Date: 8/1/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 1,200.00 23,653.80 GROSS PAY $1,576.92 $23,653.80 DENTAL DENTAL INSURANCE $11.31 156.26 HEMP HEALTH EMPLOYEE ONLY $63.28 627.06 LOAN LOAN REPAYMENT $99.97 599.82 TOTAL DEDUCTIONS $174.56 $1,383.14 Federal Tax $172.13 2,632.26 FICA Social Security Tax $93.14 1,417_97 EXHIBIT A FICA Medicare Tax $21.78 331.62 TAXES WITHHELD $287.05 $4,381.85 NET PAY $1,115.31 $17,888.81 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $1,115.31 Sick Balance 0.00 DEF-CF-00663 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000000928 Check Date: 8/15/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 1,280.00 25,230.72 GROSS PAY $1,576.92 $25,230.72 DENTAL DENTAL INSURANCE $11.31 167.57 HEMP HEALTH EMPLOYEE ONLY $63.28 690.34 LOAN LOAN REPAYMENT $99.97 699:79 TOTAL DEDUCTIONS $174.56 $1,557.70 Federal Tax $172.13 2,804.39 FICA Social Security Tax $93.15 1,511.12 EXHIBIT A FICA Medicare Tax $21.78 353.40 TAXES WITHHELD $287.06 $4,668.91 NET PAY $1,115.30 $19,004.11 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $1,115.30 Sick Balance 0.00 DEF-CF-00664 *** Dupllcate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000001010 Check Date: 8/29/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $45,000.00 80.00 $788.42 1,400.00 26,884.51 GROSS PAY $788.42 $26,884.51 DENTAL DENTAL INSURANCE $11.31 178.88 HEMP HEALTH EMPLOYEE ONLY $63.28 753.62 LOAN LOAN REPAYMENT $99.97 799.76 TOTAL DEDUCTIONS $174.56 $1,732.26 Federal Tax $53.85 2,934.82 FICA Social Security Tax $44.26 1,609.03 EXHIBIT A FICA Medicare Tax $10.35 376.30 TAXES WITHHELD $108.46 $4,920.15 NET PAY $505.40 $20,232.10 Direct Deposit Information Time Off 'Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $505.40 Sick Balance 0.00 DEF-CF-00666 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000001021 Check Date: 9/5/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $45,000.00 40.00 $865.37 1,440.00 27,749.88 GROSS PAY $865.37 $27,749.88 DENTAL DENTAL INSURANCE $0.00 178.88 HEMP HEALTH EMPLOYEE ONLY $0.00 753.62 LOAN LOAN REPAYMENT $199.94 999.70 TOTAL DEDUCTIONS- $199.94 $1,932.20 Federal Tax $76.58 3,011.40 FICA Social Security Tax $53.65 1,662.68 EXHIBIT A FICA Medicare Tax $12.55 388.85 TAXES WITHHELD $142.78 $5,062.93 NET PAY $522.65 $20,754.75 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $522.65 Sick Balance 0.00 DEF-CF-00667 Mona Flores Sent: Thursday, October 09, 2014 3:05 PM To: Allen Jones Subject: FW: Cearth Deductions Attachments: Copy of cearth xlsx FYI —Cearth's next car payment is not until 11/1. Tiffany pulled October's payment out of her last check thinking it was September's. We will try ACH'ing her next payment out on 11/1 and if we cannot get it, we will default her and repossess the car As for the house, Cearth's eviction hearing is scheduled for next week Olga sent another letter basically stating Cearth owned the house because it was promised which is laughable. Peter Donbavand Vice President Real Estate & Business Development Food Management Partners 210-403-3725 ext 218 pdonbavand@foodmps.com Confidentiality: The information contained in this e-mail and any attachments to it is privileged, confidential, and protected from disclosure. If you are not the intended recipient, you are hereby notified that any dissemination, distribution or duplication of this communication is strictly prohibited If you have received this communication in error, please notify the sender immediately, and delete it from your network server and/or hard drive. From: Peter Donbavand Sent: Thursday, October 09, 2014 9:52 AM To: Bob Amaro Cc: Nathan Calvert Subject: RE: Cearth Deductions No, the information provided is sufficient It looks like Tiffany took Cearth's Oct payment on 9/5 (which she really shouldn't have done but hopefully Cearth's attorney doesn't catch it so she does not owe All Jones, LLC any money until 11/1 The attached is not perfect but is close enough. Cearth has paid about $1,600 to date which is what she should have paid through Oct to date. We will have to wait until 11/1 to try ACH'ing the next payment from her account Vice President Real Estate & Business Development Food Management Partners 210-403-3725 ext 218 pdonbavand@foodmps.com Confidentiality: The information contained in this e-mail and any attachments to it is privileged, confidential, and protected from disclosure If you are not the intended recipient, you are hereby notified that any dissemination, distribution or duplication of this communication is strictly prohibited If you have received this communication in error, please notify the sender immediately, and delete it from your network server and/or hard drive 6/16/2015 EXHIBIT B PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC) 12-05-11 (NOTICE: For use only when BUYER occupies the property for no more than 90 days PRIOR the closing) tqU~L HOUSING QPPO/IlUNJTY BUYER'S TEMPORARY RESIDENTIAL LEASE 1. PARTIES: The parties to this Lease are_ _:Tc..: a: . ra:: . . :. .K:. : :e: . :m. :.cp::.___ _ _ _ _ _ _ _ _ _ _ _ _ _=----,-,,- (Landlord) and Ceartb Faire (Tenant). 2. LEASE: Landlord leases to Tenant the Property described in the Contract between Landlord as Seller and Tenant as Buyer known as 9647 Timber Place San Antonio TX _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (address). 3. TERM: The term of this Lease commences July 30, 2014 and terminates as specified in Paragraph 18. 4. RENTAL: Rental will be$ 40.00 per day. Upon commencement of this Lease, Tenant shall pay to Landlord the full amount of rental of$ 1,200 00 for the anticipated term of the Lease (commencement date to the Closing Date specified in Paragraph 9 of the Contract). If the actual term of this Lease differs from the anticipated term, any additional rent or reimbursement will be paid at closing. No portion of the rental will be applied to payment of any items covered by the Contract. 5. DEPOSIT: Tenant has paid to Landlord $ 0.00 as a deposit to secure performance of this Lease by Tenant. If this Lease is terminated before the Closing Date, Landlord may use the deposit to satisfy Tenant's obligations under this Lease. Landlord shall refund to Tenant any unused portion of the deposit together with an itemized list of all deductions from the deposit within 30 days after Tenant (a) surrenders possession of the Property and (b) provides Landlord written notice of Tenant's forwarding address. If this Lease is terminated by the closing and funding of the sale of the Property, the deposit will be refunded to Tenant at closing and funding. NOTICE: The deposit must be in addition to the earnest money under the Contract. 6. UTILITIES: Tenant shall pay all utility connections, deposits and charges except-;--,----;-;-~:--:;----- none , which Landlord shall pay. 7. USE OF PROPERTY: Tenant may use the Property only for residential purposes. Tenant may not assign this Lease or sublet any part of the Property. 8. PETS: Tenant may not keep pets on the Property except -"""b'"-'"rd,.___ _ _ _ _ _ _ _ _ _ _ _ __ 9. CONDITION OF PROPERTY: Tenant accepts the Property in its present condition and state of repair, but Landlord shall make all repairs and improvements required by the Contract. If this Lease is terminated prior to closing, Tenant shall surrender possession of the Property to Landlord in its present condition, as improved by Landlord, except normal wear and tear and any casualty loss. 10.ALTERATIONS: Tenant may not: (a) make any holes or drive nails into the woodwork, floors, walls or ceilings (b) alter, paint or decorate the Property or (c) install improvements or fixtures without the prior written consent of Landlord. Any improvements or fixtures placed on the Property during the Lease become a part of the Property. 11.SPECIAL PROVISIONS: 12.INSPECTIONS: Landlord may enter at reasonable times to inspect, replace, repair or complete the Improvements. Tenant shall provide Landlord door keys and access codes to allow access to the Property during the term of the Lease. 13.LAWS: Tenant shall comply with all applicable laws, restrictions, ordinances, rules and regulations with respect to the Property. 14.REPAIRS AND MAINTENANCE: Except as otherwise provided in this Lease. Tenant shall bear all expense of repairing, replacing and maintaining the Property, including but not limited to the yard, trees. shrubs, and all equipment and appliances, unless otherwise required by the Texas Property Code. Tenant shall promptly repair at Tenant's expense any damage to the Property caused directly or indirectly by any act or omission of the Tenant or any person other than the Landlord, Landlord's agents or invitees. TREC NO. 16-5 EXHIBIT B Buyer's Temporary Residential Lease_ _""'9"'-64_,_7L......!T.....,im_,_,_,b""e._r~.._PJ.>Ia,_,c""e~S=acun'-'-A--"n-'-'t""'o'-'n,_,io'-'-'T-'-X_,___ _ _ _ _ _ Page 2 of 2 12-05-11 (Address of Property) 15.INDEMNITY: Tenant indemnifies Landlord from the claims of all third parties for injury or damage to the person or property of such third party arising from the use or occupancy of the Property by Tenant. This indemnification includes attorney's fees, costs and expenses incurred by Landlord. 16.INSURANCE: Landlord and Tenant shall each maintain such insurance on the contents and Property as each party may deem appropriate during the term of this Lease. NOTE: CONSULT YOUR INSURANCE AGENT; POSSESSION OF THE PROPERTY BY BUYER AS TENANT MAY CHANGE INSURANCE POLICY COVERAGE. 17 .DEFAULT: If Tenant fails to perform or observe any provision of this Lease and fails, within 24 hours after notice by Landlord, to commence and diligently pursue to remedy such failure, Tenant will be in default. 18.TERMINATION: This Lease terminates. upon (a) closing and funding of the sale under the Contract, (b) termination of the Contract prior to dosing, (c) Tenant's default under this Lease, or (d) Tenant's default under the Contract, whichever occurs first. Upon termination other than by closing and funding of the sale, Tenant shall surrender possession of the property. 19.HOLDING OVER: Any possession by Tenant after termination creates a tenancy at sufferance and will not operate to renew or extend this Lease. Tenant shall pay $ 100 per day during the period of any possession after termination as damages, in addition to any other remedies to which Landlord is entitled. 20.ATTORNEY'S FEES: The prevailing party in any legal proceeding brought under or with respect to this lease is entitled to recover from the non-prevailing party a!l costs of such proceeding and reasonable attorney's fees. 21.SMOKE ALARMS: The Texas Property Code requires Landlord to install smoke alarms in certain locations within the Property at Landlord's expense, Tenant expressly waives Landlord's duty to inspect and repair smoke alarms. 22.SECURITY DEVICES: The requirements of the Texas Property Code relating to security devices do not apply to a residential lease for a term of 90 days or less. 23.CONSULT YOUIIR ATTORNEY: Real estate licensees cannot give legal advice. This Lease is intended to be legally binding. READ IT CAREFULLY. If you do not understand the effect of this Lease, consult your attorney BEFORE signing. 24.NOTICES: All notices from one party to the other must be in writing and are effective when mailed to, hand-delivered at, or transmitted by facsimile or electronic transmission as follows: To Landlord: To Tenant: -------------------------- Tara Kemp 9647 Timber Place 120 Chula Vista San Antonio, TX San Antonio, TX 78232=------~---- Telephone: ( ) Telephone: _,(__L._)_ _ _ _ _ _ _ __ Facsimile: __,.i__ __L)_ _ _ _ _ _ _ _ _ __ Facsimile: ( ) ~--~---------------------- E-mail: E-mail: -~·I ---1 ~ ~~~~( J:r::? Landlord Tenant · The form of this contract has been approved by the Texas Real Estate Commission. TREC forms are intended for use only by trained real estate I licensees. No representation is made as to the legal validity or adequacy of any provision In any specific transactions. It Is not intended for ! complex transactions. Texas Real Estate Commission, P.O. Box 12188, Austin, TX 78711-2188, 512-936·3000 (http://www.trec.texas.gov) TREC NO. 16-5. This form replaces TREC NO. 16·4. ·------------·-·········-···········-····--··----·----·····---··--·····--·······-----·······--··--·---·-·-·------·--···-···--···--·-···-·-··-----------' TREC NO. 16-5 Appendix 3 FILED 10/6/2015 4:10:37 PM Donna Kay McKinney Bexar County District Clerk Accepted By: Laura Rodriguez CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF’S SIXTH AMENDED ORIGINAL PETITION Plaintiff, Cearth Faire, files this Sixth Amended Original Petition against Defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners, LLC, ALL JONES, LLC, Allen J Jones, Peter Donbavand and Jason Kemp, and alleges as follows: DISCOVERY-CONTROL PLAN CLAIM FOR RELIEF 2. Plaintiff seeks monetary relief over $200,000.00 but not more than $3,000,000.00. 1 PARTIES 3. Plaintiff, Cearth Faire, is an individual, whose address is 8647 Timber Pl, San Antonio, TX 78250. 4. Defendant Jason Kemp is an individual, co-founder and Chief Financial Officer (CFO) of Defendant corporations, whose business address is Food Management Partners, LLC 120 Chula Vista, San Antonio, TX 78232. He has been served, is represented by counsel, and is properly before this court. MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is represented by counsel, and is properly before this court. 6. Defendant ALL JONES, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is represented by counsel, and is properly before this court 7. Defendant Allen J Jones, is an individual, co-founder and President/CEO of Defendant corporations, who has been served and is represented by counsel, and is properly before this court. 8. Defendant Peter Donbavand, is an individual and executive of Defendant corporations, has been served and is represented by counsel, and is properly before this court. 2 JURISDICTION 9. The Court has subject-matter jurisdiction over the lawsuit because the amount in controversy exceeds this Court’s minimum jurisdictional requirements. VENUE 10. Venue is proper in Bexar County as all or a substantial part of the events or omissions giving rise to the claim occurred in Bexar County. FACTS 11. Plaintiff Faire was an employee of Defendant Kemp, Chief Financial Officer of Defendant Corporations and of Defendant Jones, CEO of Defendant Corporations. In addition to the local corporate duties, she was required to work in the Dominican Republic for approximately five months on a 24/7 basis, for the Defendant Jones, CEO with the knowledge of Defendant Kemp. Plaintiff Faire, during the term of her employment was not properly compensated, giving rise to several violations of Wage and Hour laws that Defendant Kemp, CFO knew or should have known about. Corporations, was made aware of the facts supporting Plaintiff’s claims by means of intra-corporate email traffic and including instructions to him and all other Defendants by Jones as to how to properly proceed on Defendant Jones’ gifting to the Plaintiff the real estate, and specifically the “Kemp” house. 3 13. Defendant Jones, CEO in his official capacity as well as in his individual capacity communicated his intent to make the gift of real estate to Plaintiff by negotiating a price for the “Kemp” house at 8647 Timber Pl. San Antonio, Texas, 78250. Defendant Kemp’s, knowledge of the oral gift of real estate to Plaintiff is supported by the fact that a buyer’s lease agreement was executed. 14. Further, Defendant Donbavand, in his individual capacity and outside the scope of corporate business issued orders for the inspection of, and preparation of the necessary documents to carry out gifting of the real estate to the Plaintiff. Defendant Kemp, individually and in his official capacity of chief financial officer of the Defendant Corporations knew or should have known the facts supporting Plaintiff’s claims. Again, email traffic between all Defendants supports the facts of Plaintiff’s claims of oral gift of real estate, fraud, and quid pro quo sexual harassment and retaliation. 15. Defendant Jones, as CEO and in his individual capacity, negotiated with Defendant Jason Kemp, CFO, whose wife owned the residence at 8647 Timber Pl, San Antonio, TX 78250. 16. Defendant Kemp, CFO and co-owner, also a business partner of Defendant Jones, took orders and assumed duties outside the course and scope of the corporate entities upon demand from Defendant Jones, the President & CEO of Defendants FMP and ALL JONES, LLC. Defendant Jones treats the corporate entities as his “piggy bank” and Defendants Donbavand and Kemp, as his personal aides. 4 17. Defendant Kemp, CFO and co-owner, routinely succumbs to the personal demands of Defendant Jones outside the best interests of the corporate business, as in this case, to sell him the residence at 8647 Timber Pl, San Antonio, TX 78250, so he could gift the property to the Plaintiff in consideration for her assisting in his personal legal matters, and in lieu of proper wage compensation. 18. Defendant Kemp had personal reasons to complete the necessary documents. Defendant Donbavand, on behalf of Defendant Jones requested of Defendant Kemp, that Plaintiff move into the house prior to “closing”, orally gifting her the house, a present gift. Plaintiff, in reliance of Jones’ oral promise moved into the house with the consent of Defendant Kemp and the consent and request of Defendant Jones and made valuable and permanent improvements in reliance of Defendant Jones promise to her. 19. Plaintiff incurred moving expenses as well as expenses in making permanent improvements to the residence to make it habitable. Defendants’ email traffic support this. The residence is still in need of significant repairs. An inspection was ordered by the defendants as further proof of Defendant Jones’ purchase with intention to make a gift. 20. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent promotion based on meritorious work.. Defendant Jones demanded the other 5 defendants Defendant Peter Donbavand and Defendant Jason Kemp evict Plaintiff from the house he had given her in retaliation for her refusal of sexual advances. The wrongful eviction proceedings were abated, as the justice of the peace court lacks jurisdiction to rule on the petition for eviction in that title to the property is at issue. The wrongful eviction proceedings are outside the course and scope of corporate business. 21. Defendants, all acting in concert, continued to retaliate against, and harass the Plaintiff by wrongfully repossessing her car. Plaintiff had clear title to her 2005 Mini Cooper. Jones promised to repair her car. An ambiguous payment plan was put in place. However, in retaliation for claiming her rightful title to her house, Jones has deprived Plaintiff of a necessity, of transportation to seek employment. During the repossession process, Jones terrorized her by sending strangers to ring her doorbell, all while he owns a million dollars worth of automobiles, and spends a great deal of his time in the Dominican Republic. 22. Plaintiff had an exemplary employment record before being hired by Defendants FMP and ALL JONES, LLC. Immediately before being fired by Defendants, Faire had been given a raise in pay and been entrusted with additional duties. Plaintiff was fired solely because Plaintiff refused to continue to perform employment duties that were not in furtherance of the corporate business and because of Defendant Jones’ demands for demeaning sexual acts and explicit threats to fire her if she didn’t submit. 6 23. Plaintiff seeks actual damages as a result of the sexual harassment and discrimination, which include, but are not limited to back pay from the date of quid pro quo retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and benefits including the repossession of her automobile lost as a result of her unlawful termination. 24. Plaintiff also seeks damages for past and future mental anguish as a result of Defendant Jones explicitly forcing her to choose between the sexual abuse he was demanding of her and her livelihood. 25. Defendant Jones acted with malice toward Plaintiff in that Jones exhibited conscious indifference to consequences Plaintiff might suffer separate and apart from the damages suffered as a result of the retaliation. Defendant Jones, as President and CEO, has inflicted additional injuries by circulating malicious rumors about the Plaintiff at corporate headquarters. Plaintiff therefore seeks exemplary damages. Count 1: Common Fraud by Defendant Kemp 26. Defendant Kemp, the CFO of Plaintiff’s former employers represented to Plaintiff that she would be legally and properly compensated for her services as personal assistant to the corporate officers, and to the CEO Defendant Allen J. Jones. 7 27. Defendant Kemp in his role as the CFO of all financial data and information for all the businesses, including Defendant Jones’ personal businesses, had reason to know that in executing her duties Plaintiff was required to work extremely long hours and carry out very difficult tasks. 28. Defendant Kemp represented to Plaintiff that he would sell his wife’s house at 8647 Timber Pl to Plaintiff’s employers so that house would eventually become the property of Plaintiff. In making the representation to the Plaintiff, Defendant Kemp knew it was material because Plaintiff would be waiving her rights to seeking proper and legal compensation of an amount of no less than $150,000.00. 29. Defendant Kemp made the false representation knowing it was false but intended for the Plaintiff to rely on the representations. Therefore, Plaintiff justifiably relied on defendant’s false representation of proper and legal compensation for her overtime work. Defendant Kemp’s false representations have directly and proximately caused injury to the Plaintiff which have resulted in lack of compensation from the corporation and Defendant Jones in an amount of no less than $200,000.00. 30. Plaintiff seeks damages within the jurisdictional limits of this Court. Count II: Fraud by Third-Party Misrepresentations 31. Plaintiff and Defendant Kemp were parties to a transaction involving real estate. Kemp provided the vehicle, the residence at 8647 Timber Pl, by which Plaintiff was defrauded. 8 32. During the transactions between Plaintiff and Defendant Kemp, Kemp knew that Defendant Jones made a false representation to Plaintiff regarding the real estate at 8647 Timber Pl, San Antonio, Texas. 33. Defendant Kemp did not disclose to the Plaintiff that Defendant Jones’ representations to her were false. Defendant Kemp knew the representations made to Plaintiff by Defendant Jones were false. Defendant Kemp, as the CFO, had a duty to disclose the misrepresentation to Plaintiff as he knew Plaintiff had no opportunity to discover otherwise and would rely on Jones’ false representations. 34. Defendant Kemp by failing to disclose the false representations made by Defendant Jones benefited from the transaction both personally as well as a part owner in the corporations of which he is the chief financial officer. 35. Defendant Kemp ‘s purpose in not disclosing the falsity of the misrepresentation that Jones was going to provide the house as compensation for Plaintiff’s overtime wages was to induce the Plaintiff to enter into a contract with Defendant Kemp. Plaintiff justifiably relied on the false representations to her financial detriment. 36. Defendant Kemp’s nondisclosure of the false representations made to Plaintiff by Defendant Jones directly and proximately caused economic and other injuries to the Plaintiff all within the jurisdiction of this court. 9 Count III- ORAL GIFT OF REAL ESTATE 37. On or about March 27, 2013, when Plaintiff Faire, as an employee of Defendant Corporations, was temporarily living in the Dominican Republic at the behest of Defendant Jones, CEO, working on a 24/7 hour basis, Defendant Jones promised to buy a home and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas. 38. On or about July 30 2014, Plaintiff moved into the house at 8647 Timber Pl, San Antonio, Texas 78250, that Defendant Jones gifted her in his individual capacity but with the knowledge and consent of all Defendants, including Defendant Kemp. Plaintiff is still living at her home, taking possession under the present gift. 39. Plaintiff has made permanent and valuable improvement to the home based on the reliance of the gift made to her by Defendant Jones as an individual. 40. It was reasonable for Plaintiff to rely on Defendant Jones’ promise of an oral gift of real estate based on her personal knowledge of Defendant Jones’ history of helping employees with homes, and based on Defendant Jones’ financial resources, including but not limited to ownership in franchises of Zio’s Italian Kitchen, Buffalo Wild Wings, Don Pablo’s Big Tex Bold Mex, Furr’s, Little Ceasar’s and Smashburger. 10 41. Further, in other judicial proceedings, Defendant Jones made judicial admissions of owning 150 businesses and having financial resources to “buy” a young lady from a brothel for $10,000.00 in the Dominican Republic where he also has extensive real estate holdings. In other words, judicial admissions of human trafficking on the part of the CEO of Defendant corporations, with the knowledge of other corporate officers, including Defendant Kemp, CFO. This is relevant to both the financial capacity to gift a house to an employee, and to Defendants’ attitude toward females. 42. Defendant Jones informed the Plaintiff that he was buying the house from Defendant Kemp, and that at closing, he would give her full title and interest to the home. Defendants Jones further promised the closing would take place immediately upon the reaching of an agreement on the final price and other terms. A final purchase price was reached between Defendant Jones and Defendant Jason Kemp. All terms for the sale of the house were reached by buyer and seller, and having absolutely nothing to do with the business of the corporate entities, parties herein 43. Defendant Kemp, and Defendant Donbavand knew the house located at 8647 Timber Pl, San Antonio, TX 78250 purchased from Kemp, was a gift of real estate to the Plaintiff. Defendant Donbavand ordered an inspection of the home in furtherance of a prompt closing, all outside of the course and scope of corporate business. Defendant Kemp’s knowledge of the gift is evidenced by 11 electronic correspondence traffic exchanged between Defendant Kemp and Defendant Donbavand. 44. Defendant Jones made this gift to Plaintiff as an individual and not as President & CEO of the other corporate defendants. Defendant Jones purchased the home from Defendant Kemp as an individual and not as a transaction within the course and scope of corporate business. necessary documentation and transactions outside the course and scope of corporate business. Defendant Donbavand routinely acts as Defendant Jones’ personal aide to carry out his orders regarding personal matters. Defendant Donbavand is experienced in real estate transactions and worked to completing the necessary documents. In the meantime, in a fit of retaliation, Defendant Jones changed his mind about the gift. Plaintiff has been living in the house since on or before July 30, 2014. 46. Plaintiff asserts this oral gift of real estate must be enforced in equity as the facts herein establish a gift of real estate, notwithstanding the requirements of the statute of frauds. 12 Count IV – Conspiracy Claim 47. Defendant Jones, CEO of Defendant Corporations, took overt steps of retaliation toward employee, Faire, giving rise to an agreement between Defendant Donbavand and Defendant Kemp and himself, to enter into a scheme against Plaintiff, to deny that he had made an oral gift of real estate to Plaintiff, even though Defendant Kemp had given her a key to the home, and a short term buyer’s lease evidencing his consent to her proper move into the residence. 48. Plaintiff asserts that electronic correspondence between conspirators that has been properly requested by her, but denied her, will support all Defendants were involved in Defendant Jones’ retaliation against Plaintiff. All Defendants have participated in the common goal of depriving Plaintiff of her home, after she had taken possession of the home and made valuable improvement, by numerous petitions for eviction proceedings. 49. Defendants are in possession of electronic communications between conspirators that will support a meeting of the minds on the subject of retaliation, and the tort of fraud to deprive Plaintiff Faire of the real estate gifted to her. Plaintiff Faire has sustained economic damages as a result of the conspiracy by Defendants Jones, Kemp and Donbavand to defraud her of her rightful title to the real estate. 50. It is well established that fraud can be the basis of a conspiracy. The Defendants Jones, Kemp and Donbavand made material misrepresentations to 13 the Plaintiff in connection with the gifting of the real estate to her. Each Defendant took overt steps and actions to deceive her by going through the process of purchase and delivery of the real estate. 51. Plaintiff Faire relied on each step taken by each of the Defendants in furtherance of delivery and possession of the house to her. Defendants intended for the Plaintiff to rely on their representations that they were working on carrying out the oral gift of real estate. 52. Defendants’ false representations, including those of Defendant Kemp have directly and proximately caused economic and other injuries to the Plaintiff. Plaintiff seeks damages within the jurisdictional limits of this court. 53. Plaintiff seeks exemplary damages from each Defendant including Defendant Kemp, because Plaintiff will show each acted with malice toward the Plaintiff which entitles Plaintiff to exemplary damages under Texas Civil Practice and Remedies code section 41.003(a). Count V QUID PRO QUO SEXUAL HARASSMENT 54. Plaintiff was an employee of Defendants FMP, ALL JONES and their subsidiaries, and her duties were to serve as a personal assistant to the Defendant Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self-supporting divorced woman with no financial resources other than her wages. Plaintiff also had an exemplary work history prior to working for Defendants. 14 55. Plaintiff raises this claim under Tex. Lab. Code Ann. §§ 21.001, .051 (West 1996), which prohibits discrimination on the basis of sex. 56. On or about January 21, 2013 Defendant Jones made sexual advances toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical conduct of a sexual nature. Defendant Jones’s demands escalated and the mental conditioning and abuse was so extreme that it prevented Plaintiff from defending herself. 57. Defendant Jones made it clear to the Plaintiff that continued employment as well as other job benefits were conditioned on her acceptance of the continued sexual demands of Defendant Jones. 58. At the time of the harassment, Defendant Jones was the President and CEO of the Food Management Partners, a Texas LLC. At all times, Defendant Jones held himself out to Plaintiff and to the public, as a very powerful business man, and owner of 150 businesses. Defendant Jones instilled fear of his financial power on Plaintiff. There was no recourse available to the Plaintiff to complain. 59. Plaintiff was harmed by the physical sexual conduct perpetrated against her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by Defendant Jones sexual harassment. When Plaintiff was mentally well enough to, she refused to further submit to Defendant Jones’ inappropriate requests, and she was fired on or about August 31, 2014. 15 60. Plaintiff seeks compensatory damages for lost wages, lost benefits and future employment opportunities based on her traumatic experience at the hand of Defendant Jones. 61. Plaintiff seeks exemplary damages based on Defendant Jones’s history of sexual harassment of others and including judicial admissions that he purchased a female as if she was merely chattel. 62. Further, Plaintiff seeks exemplary damages against Defendant Kemp and Defendant Donbavand, as her injury resulted from Defendants’ malice, which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code section 41.003(a). JURY DEMAND 63. Plaintiff has demanded a jury trial and tendered the appropriate fee with her original petition. The jury trail has been set for March 7, 2016. CONDITIONS PRECEDENT 64. All conditions precedent to plaintiff’s claim for relief have been performed or have occurred. OBJECTION TO ASSOCIATE JUDGE 65. Plaintiff objects to the referral of this case to an associate judge for hearing a trial on the merits or presiding at a jury trial. 16 PRAYER For these reasons, Plaintiff asks that Defendants be cited to appear and answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for the following: a. Exemplary damages b. Economic and non-economic damages including, but not limited to back pay, front pay, severance pay, specific performance regarding the gift purchase of a home (or its monetary equivalent). c. All the remedies afforded by Tex. Lab. Code Ann. 21.001 d. Prejudgment and postjudgment interest. e. Court costs. f. Reasonable and necessary Attorney’s fees g. All other relief to which Plaintiff is entitled. LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net By: /s/ Olga Brown_________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff 17 CERTIFICATE OF SERVICE I do hereby certify that on the 6th day of October 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Sixth Amended Original Petition was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN 18 Appendix 4 CAUSE NO. 2014-CI-16674 CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, § INDIVIDUALLY, AND § PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF’S SECOND MOTION TO COMPEL THE ORAL AND VIDEOTAPED DEPOSITION OF DEFENDANT ALLEN J JONES PLAINTIFF, Cearth Faire, asks the Court to issue an order to compel the deposition of Defendant Allen J Jones, properly noticed and now scheduled for October 27, 2015 In support of such request Plaintiff would show the Court as follows: 1. PLAINTIFF, CEARTH FAIRE, sued Defendants FMP et al, including Defendant Jones eleven (11) months ago for numerous tort claims. 2. Plaintiff was employed by Defendant Jones individually and by Defendant ALL JONES, LLC of which Defendant Jones is a principal, and Defendant FMP, of which Defendant Jones is the CEO and a principal. 3. Plaintiff served Defendant Jones, through counsel, a Retention Notice (Spoliation Letter) on December 5, 2014. Plaintiff’s counsel has diligently attempted to take the sworn testimony of Defendant Jones to no avail. 4. The sworn testimony of the Defendant Jones necessary to prepare for and to prove Plaintiff’s allegations. The sworn testimony is also necessary prior to mediation and/or trial on the merits. 5. Plaintiff Faire seeks this Order compelling Defendant Jones to attend the deposition because the deposition first set for January 27, 2015 was quashed. Plaintiff conferred with opposing counsel, and has noticed Defendant Jones’ deposition again for April 13, 2015, September 23, 2015 in a companion case to the instant case, and October 2, 2015. Plaintiff believes a notice for deposition through his counsel is not sufficient to compel Defendant Jones to attend. 6. The deposition for October 02, 2015 was reset because of Defendant Jones’ unavailability. Defendant Jones, who owns and operates numerous fast food franchises is of the belief that such business interests supports his notion that he is above the law and is of the opinion that in spite of his personal and professional misconduct he does not have to follow the Texas Rules of Civil Procedure, in particular his legal obligation as a defendant to give sworn testimony. 7. Defendant Jones has a history here in Bexar County, Texas of making judicial admissions in other proceedings that would shock the conscious of this tribunal and has not suffered consequences. For example, Defendant Jones testified before the Hon. Judge Cathy Stryker, that he had paid $10,000 cash for his third wife in the Dominican Republic. 8. Plaintiff believes that if Jones does not hold respect for the global laws of human rights and United States laws prohibiting human trafficking Defendant Jones will not attend the oral and videotaped deposition now scheduled October 27, 2015. 9. Plaintiff requests that an Order compelling Defendant Allen Jones include serious sanctions. This court can impose sanctions, including the ultimate sanction of dismissal or default authorized by Tex. R. Civ. P 215.2 (b). 10. At the time of this hearing, Plaintiff Faire will testify to the flagrant bad faith and repeated discovery abuses by Defendant Jones that will support her request for the ultimate sanction of dismissal or default as authorized by the Rule. 11. Plaintiff further requests the Court upon proof of Defendant Jones lying (perjury) during the deposition, to impose the appropriate sanctions. This court is authorized to impose sanctions ranging from the payment of expenses and attorney fees to a default judgment. See TRCP 215.2 (b) 12. Plaintiff Faire would show that from the minimum records produced it is evident that Defendant Jones has given false statements concerning the time, place and reason for the employment termination. Defendant Jones is expected to obstruct the court in the performance of its duties in this case. See In re Reece, 341 S.W.3d 360, (Tex. 2011). III. ARGUMENT & AUTHORITIES 13. The purpose of discovery is to seek the truth, so disputes may be decided by what facts are revealed, not by what facts are concealed. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex. 1990). Discovery may be obtained about any matter relevant to the subject matter of the case. Tex. R. Civ. P. 192.3(a). Information is discoverable as long as it appears “reasonably calculated to lead to the discovery of admissible evidence.” Id. 14. Plaintiff’s discovery requests are reasonably calculated to lead to the discovery of admissible evidence. Specifically, by this motion, Plaintiff seeks Defendant Jones’ sworn testimony to prove Plaintiff’s claims. Defendants, in their previous Motion to Quash depositions misrepresented to the Court that Plaintiff made no attempt to confer, when in actuality, Defendants ignored Plaintiff’s attempts to confer, leaving her no alternative to notice the first depositions. Defendant Jones has a history of making misrepresentations to the Court. 15. Plaintiff would show that without a court order and a threat of serious sanctions compelling Defendants Jones to appear for this deposition on October 27, 2016, Defendant Jones is not expected to appear. Plaintiff will then be prejudiced by not having information that cannot be obtained from any other source, as all of Plaintiff’s claim are based on Jones’ unlawful conduct. EXPENSES OF MOTION 16. Plaintiff has incurred expenses in preparing and filing this motion to obtain relief. Under Texas Rule of Civil Procedure 215.1(d), Plaintiff is entitled to reasonable expenses incurred in obtaining the order, including attorney fees. CONCLUSION 17. Plaintiff requests an order compelling Defendant Jones to appear on October 27, 2015, and give sworn testimony to support the validity of Plaintiff’s allegations pending in claims before this court. PRAYER For these reasons, Plaintiff asks the Court to set this motion for hearing and, after the hearing, to compel Defendant Jones to give sworn testimony relevant to the pleadings before the Court. Plaintiff further requests as part of the order an award for reasonable expenses incurred in filing this motion, including attorney fees. Plaintiff prays for all other and further relief to which she is entitled. LAW OFFICE OF OLGA BROWN 111Soledad, Suite 1725 San Antonio, Texas 78205 Telephone (210) 226-1550 Facsimile (210) 226-1884 Argyle2@sbcglobal.net /s/ Olga Brown___________ OLGA BROWN State Bar No. 03155500 ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I do hereby certify that on the 1st day of October 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Second Motion to Compel was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN CAUSE NO. 2014-CI-16674 CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, § INDIVIDUALLY, AND § PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS FIAT Plaintiff’s Notice of Hearing for Plaintiff’s Second Motion to Compel Deposition, has been duly submitted to the Court and request is made for hearing thereon and is hereby set for hearing on the 12th day of October, 2015 at 8:30 a.m. in Presiding Court ,Room 1.09, of Bexar County Courthouse, San Antonio, Texas. SIGNED this the ____ day of October, 2015. ______________________________ HON. JUDGE PRESIDING I do hereby certify that on the 1st day of October 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Second Motion to Compel Deposition was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN Appendix 5 CAUSE NO. 2014-CI-16674 CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § 150TH JUDICIAL DISTRICT ALL JONES, LLC, ALLEN J JONES, § INDIVIDUALLY, AND § PETER DONBAVAND, AND JASON § KEMP, INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF’S RESPONSE TO DEFENDANT JONES’ MOTION TO DISQUALIFY PLAINTIFF’S ATTORNEY TO THE HONORABLE OF SAID COURT: NOW COMES PLAINTIFF FAIRE, who herein files her Response to Defendant Jones’ Motion for Disqualification of Plaintiff’s attorney and respectfully requests this Court to DENY such untimely and groundless motion and in support thereof would show the Court as follows: I. Defendant Jones Has Waived Objections To Brown’s Representation By An Unexplained Delay For One Year Plaintiff Faire attempted to resolve her claims against Defendant Jones prior to filing this lawsuit on October 21, 2014. At the time of the pre-suit discussions, on September 11, 2014, Plaintiff Faire also informed Defendant Jones that she had interviewed several attorneys and that she intended to hire Brown if the matters between them did not resolve. Defendant Jones did not object. Defendant Jones has produced a copy of an email dated September 11, 2014 and September 17, 2014, wherein they were privy to information that Plaintiff intended to and did hire Brown, and paid Brown a retainer. See Exhibit “A” Defendant Jones failed to move for disqualification when Jones filed his answer on November 24, 2014, nine and a half (9 ½) months ago. Defendant Jones also failed to move for disqualification when Brown represented Plaintiff beginning on October 16, 2014 in defense of his attempts to evict her from the home he had promised her on 8647 Timber Place, San Antonio, TX 78250. Defendant Jones again failed to move for disqualification when Brown represented Plaintiff at Jones’ second attempt to evict the Plaintiff, properly abated by the Justice court on October 29, 2014, nine (9) months ago. Defendant Jones failed to move for disqualification when Brown represented Plaintiff Faire in the third attempt by Defendant Jones to evict Faire from the residence he gifted her, which the court dismissed finding the Plaintiff Jones had not proven their case by a preponderance of the evidence, on August 19, 2015. Defendant Jones failed to move for disqualification of Plaintiff’s counsel when he moved for an expedited dismissal of some Plaintiff’s claims on December 22, 2014, eight and one half (8 ½) months ago. The trial court granted Jones’ Rule 91a motion on the mistaken notion of a summary judgment standard. Plaintiff intends to appeal the ruling. 2 It is just over one year that Defendant Jones has had actual notice that Plaintiff Faire had retained Brown. Defendant filed the motion to disqualify on September 9, 2015. Waiver of Motion is determined by the filing of Motion. In re Butler, 987 S.W. 2d 221, 224 (Tex. App.—Houston [14th Dist.] 1999, orig. proceedings). II. DEFENDANT JONES HAS FAILED TO ESTABLISH GROUNDS FOR DISQUALIFICATION OF PLAINTIFF’S COUNSEL Plaintiff asserts that notwithstanding the fact that this is an untimely motion, Defendant Jones has failed to establish with specificity the circumstances that justify the attorney’s disqualifications one year later. Defendant Jones has failed to allege the facts and issues involved in both former (a divorce ) and present (employment claims) litigation are similar. A requirement, if he alleges Plaintiff was a member of the litigation team of the former suit, when in fact she was not. See Affidavit of Plaintiff, herein marked as Exhibit “B” and incorporated here for all purposes. Defendant Jones is required to provide evidence of specific similarities that would be included and recited in the disqualification order. Plaintiff Faire was not a member of his litigation team during the pendency of the Jones divorce. Jones was represented by Sam Bashara and his office who did not need the assistance of a clerk to properly defend Jones. Plaintiff Faire never met with Bashara or any members of his staff during the divorce proceedings. Plaintiff was merely the passive recipient of emails having to do with calendar and deadlines Plaintiff would further show that emails are not privileged information. Further, Defendant Jones “wiped” Plaintiff’s personal and business phone, and emails produced were those that were remained in the electronically stored communications on Plaintiff’s personal email account. Plaintiff Faire would show there is no fiduciary duty existing between her and Jones. The facts of the this case do not support an obligation for Plaintiff Faire to honor the duty of loyalty, and utmost good faith and including the duty to act in Defendant Jones’ best interest when the facts of this case would also support a claim for wrongful termination under Sabine Pilot Serv. v. Hauck 687 S.W. 2d 733, 735 (Tex. 1985). The elements of Sabine Pilot are simply 1) plaintiff was an at-will employee, 2) plaintiff refused to perform an illegal act, 2) plaintiff was terminated solely because of the refusal. The law would not impose a fiduciary duty on an employee whose employer demanded and ordered her to commit acts in violations of human rights. 4 Movant has failed to establish any evidence that would support a fiduciary duty exists between Defendant Jones and Plaintiff in light of the allegations of this suit and of documents that have been exchanged through proper discovery requests. Mere conclusory statements of employee/employer relationship in this case are not sufficient to claim a fiduciary duty. In this case, since Plaintiff Faire does not owe Defendant Jones a fiduciary duty, thus the bold conclusion that Brown assisted and encouraged Plaintiff Faire to breach her fiduciary duty to Jones is without merit. None of Movant’s cases cited in this paragraph are on point. The Johnson case is a dispute between a law firm and an ex-associate over referral fees. Flanagan Shipping Corp defines the responsibility of a third-party who participates in a breach of fiduciary duty. Plaintiff Faire agrees with the definition, however, there is no fiduciary duty established here for Brown to knowingly participate in. Brown should not be disqualified if “ through no wrongdoing on her part, she gained possession of opponent’s confidential information without regard to the significance of the information or other circumstances”. See In re Meador. 968 S.W.2d 346, 351-52 (Tex. 1998). Any emails between Bashara’s office and Jones were scrutinized by Jones when his office wiped Plaintiff’s electronic devices, and when he forwarded to her personal email accounts the emails they now complain of. Emails are not private and after six months lose confidentiality if any existed. IV. BROWN SHOULD NOT BE DISQUALIFIED FOR RECEIVING “ALLEGED “ PRIVILEGED MATERIALS Defendant Jones seeks to untimely disqualify Plaintiff’s counsel for receiving “alleged” privileged emails outside the normal discovery process without first establishing he is without fault that Plaintiff Faire was in possession without his consent and knowledge. Plaintiff Faire has plead that she was in the Domincan Republic “assisting him in the defense of his child custody litigation here in Bexar County. Plaintiff Faire has not admitted to the responsibilities attributed to her in the Jones Affidavit. Plaintiff Faire assisted him in the care of the infant son he was holding hostage in the Dominican Republic to gain leverage in the divorce proceedings. Neither Jones nor Bashara told her she was part of the legal team or that she was being entrusted with privileged information that was not a matter of public record. Defendant Jones has failed to establish the most important element required for disqualification; that being the significance of the privileged information. See In re Meador, While Movant has listed some the bates-stamped documents the Plaintiff has produced, the fact the documents originated from his previous law firm in and of itself is not enough to make the emails privileged. 6 Defendant Jones has not disclosed to this court, the extent to which he is at fault in this matter. Defendant Jones, routinely forwarded email to Plaintiff’s personal email account. If Plaintiff’s personal email account contained any alleged privileged information it was at the request of Jones. ARGUMENTS & AUTHORITIES Plaintiff Faire asserts that this Court go no further than a determination of waiver of this claim for disqualification of her attorney. Defendant Jones has failed to bring this motion in a timely manner. For over a year, Defendant Jones has had the best of legal representation in the area of employment law. This case has been intensively litigated over many hearings which, at any one of those times, he could have filed this motion. Defendant Jones had many opportunities to bring this motion, and completely ignored that his window of opportunity could be narrow. If Defendant Jones had filed this motion on December 2014, the courts have found two months is a reasonable time to bring disqualification motions. Wasserman v. Black, 910 S.W.2d 564, 569 (Tex. App.__Waco 1995, no writ) Even three months delay in filing the motion could also be timely with Buck v. Palmer, 381 S.W.3d 525 , 528 (Tex. 2012) (per curiam). In Vaughan v. Walther, 875 S.W.2d 690, 691 (Tex. 1994) original proceeding, the Court found an “unexplained seven-month delay in seeking the attorney’s disqualification was sufficient to establish waiver. Also a six and one-half month delay in seeking attorney’s disqualification resulted in waiver. Conoco Inc. v. Baskin, 803 S.W.2d 416, 419 (Tex. App.__El Paso 1991, no writ) By this Motion all Movant has established is that Plaintiff’s Counsel represented Defendant Jones’ third wife in child custody litigation. The facts known to Plaintiff’s counsel are a matter of public record. Mainly, Movant abducted his infant son and held him hostage in the Dominican Republic. In good-faith Plaintiff has produced emails that were left in Plaintiff’s personal email accounts after Movant had an opportunity to “wipe” the electronically stored information at the time of her termination of employment. Also by this Motion Movant is requesting a severe remedy/relief against the Plaintiff. In considering this motion this “ court must adhere to an exacting standard”. See Spears v. Fourth Ct. of Appeals, 797 S.W.2d 654, 656 (Tex. 1990). Mere allegations of unethical conduct on the part of the Plaintiff and her counsel will not do. In re Sanders, 153 S.W.3d 54 57 (Tex., 2004) 8 Movant’s motion is not sworn to. The exhibits attached therein are not sufficient to establish that Plaintiff was a member of the litigation team. There were no representations by Movant or his counsel Bashara that informed the Plaintiff that she was a member of the litigation team involving child custody issues. The Jones affidavit is not sufficient evidence to establish the fact that a conflict exists. Plaintiff would show that and attaches herein that Jones had judicially admitted to paying $10,000.00 to a brothel owner for his wife See Exhibit C. Jones a sophisticated businessman knows this is a crime and a serious violation of human rights. His affidavit is objectionable on that basis. Therefore there is no evidence to support the disqualification of Plaintiff’s counsel. Movant has failed to prove that the factual matters involved in the child custody suit were closely related to the pending litigation. They were not. This motion is not specific as to what specific confidences and secrets were imparted to the Plaintiff and what harm if any it has caused the Movant. In this case, the trial court refused to disqualify Plaintiff’s counsel. Like in this case, the Defendant accused the lawyer of improperly using privileged information, documents which the lawyer’s client (in another lawsuit) secretly removed from Defendant’s office. The trial court refused to disqualify the lawyer. Additionally, in this lawsuit, the Movant actually forwarded email to the Plaintiff’s personal email account, from his previous lawsuit, without any confidential statements or requests. If there are any claims of unauthorized disclosure, it is the Movant that is responsible for the disclosure of those documents. Nowhere in his sixteen (16) page motion does Movant offer an explanation for his one year’s delay in filing his motion to disqualify Plaintiff’s counsel. Nowhere in his motion does Defendant Jones specifically shows this Court the sensitivity of the alleged privileged information. Defendant Jones fails to show this Court how he is harmed by the receipt of information he requested from the Plaintiff. Defendant Jones simply makes conclusory statements unsupported by the evidence required to meet his burden. For the reasons stated above and supported by Movant’s caselaw Plaintiff respectfully requests this Court issue an Order denying Defendant Jones’ Motion to Disqualify. Plaintiff Faire prays for all other and further relief to which she is justly entitled. 10 Respectfully submitted, LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net By: /s/ Olga Brown__________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff I do hereby certify that on the 15TH day of September 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Response to Defendants’ Motion to Disqualify was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN Date: Fri, 19 Sep 2014 10:21:33 -0400 From: Tracy Amass To: Peter Donbavand Subject: FW: Receipt from Olga Brown From: Lisa Mittelberg Sent: Friday, September 19, 2014 8:44 AM To: Tracy Amass Subject: FW: Receipt from Olga Brown It looks like Cearth still thinks that she works for Allen. Here is a copy of a credit card receipt that she signed and I received it this Wednesday. Allen didn’t know what it was for. I did call the attorney (Olga Brown) and gave them Allen’s cell so that they could look into it and get back to him about it. Lisa Mittelberg Executive Assistant Food Management Partners Inc. 120 Chula Vista Hollywood Park, Texas 78232 Phone 210-403-3725 ext 201 Fax 210-403-3580 From: Allen Jones Sent: Friday, September 19, 2014 7:19 AM To: Lisa Mittelberg Subject: Re: Receipt from Olga Brown No idea what this is Sent from my iPhone On Sep 17, 2014, at 3:51 PM, "Lisa Mittelberg" < lmittelberg@foodmps.com > wrote: Isn’t this the name of your attorney? Lisa Mittelberg Executive Assistant Food Management Partners Inc. 120 Chula Vista Hollywood Park, Texas 78232 DEF-CF-00527 From: Square [ mailto:noreply@messaging.squareup.com ] Sent: Wednesday, September 17, 2014 2:49 PM To: Cearth Faire Subject: Receipt from Olga Brown Spac er How was your experience? Positive $ 2,500.00 Custom Amount $2,500.00 Total $2,500.00 Visa 4704 9/17/14, 1:58 PM #YJTE R e c e ip tb o to m e d g e © 2014 Square, Inc. All rights res erved. 1455 Market Street, Suite 600, San Francis co, CA 94103 Square Privacy Policy Not your receipt? Manage preferences for digital receipts F o o te rlo g o DEF-CF-00528 Date: Fri, 12 Sep 2014 10:31:39 -0400 From: Peter Donbavand To: Jason Kemp Cc: Allen Jones Subject: RE: Code of ethics This code is for BWW Corp employees. Unless I am missing something, I wouldn’t be overly concerned. Olga Brown was not a particularly good attorney and even if she did bring a case, we have plenty of witnesses to corroborate her erratic behavior and discredit her. Vice President Real Estate & Business Development Food Management Partners 210-403-3725 ext 218 pdonbavand@foodmps.com Confidentiality: The information contained in this e-mail and any attachments to it is privileged, confidential, and protected from disclosure. If you are not the intended recipient, you are hereby notified that any dissemination, distribution or duplication of this communication is strictly prohibited. If you have received this communication in error, please notify the sender immediately, and delete it from your network server and/or hard drive. From: Jason Kemp Sent: Thursday, September 11, 2014 1:20 PM To: Peter Donbavand Cc: Allen Jones Subject: Fwd: Code of ethics JK ********************************************** Jason R. Kemp Co-founder & CFO Food Management Partners, Inc. 120 Chula Vista Hollywood Park, Texas 78232 P- 210-403-3725 ext. 217 F- 210-403-9097 *Confidential fax* C- 210-268-2006 Jasonkemp@FoodMPS.com Begin forwarded message: From: Cearth < mommiesawitch@yahoo.com > Date: September 11, 2014 at 1:15:43 PM CDT To: < allenjones@foodmps.com >, < jasonkemp@foodmps.com >, < DEF-CF-00486 brianpadilla@foodmps.com > Subject: Code of ethics Allen, I don't have to do this but I contacted Olga Brown. I have included the partners that will be served with subpoenas. Our affair and subsequent termination is in violation of this code. http://files.shareholder.com/downloads/BWLD/0x0x481458/2d00f2bc-5360- 442c-8f00-49c13da5b325/code_of_ethics.pdf Contact me if you are interested in keeping this out of court. 210-725-5213 Cearth Faire Sent from my T-Mobile 4G LTE Device DEF-CF-00487 EXHIBIT B V. 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, LLC, D/BIA FOOD MANAGEMENT PARTNERS, LLC, ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, INDIVIDUALLY Defendants BEXAR COUNTY, TEXAS AFFIDAVIT STATE OF TEXAS COUNTY OF BEXAR BEFORE ME, the undersigned authority, a notary public in and for the State of Texas, personally appeared Cearth Faire, known to be the person whose name is subscribed to this affidavit and who after being duly sworn by me did on her oath depose and state the following, to-wit: 1„ "My name is Cearth Faire. I am over the age of 18 and I am fully competent to make this Affidavit in all respects and the statements contained herein are within my personal knowledge and true and correct.. 2.. I am the Plaintiff in this lawsuit against Allen J Jones, FMP, ALL JONES, LLC, Peter Donbavand and Jason Kemp, all officers of the business entities.. 3.. I am a former employee of FMP and ALL JONES.. I was hired November 12, 2012 and fired August 31, 2014.. At all times, I was employed as Allen Jones' personal assistant.. My knowledge of Mr.. Jones' business was limited to assisting in personal matters, handling calendars and scheduling travel 4.. My attorney, Olga Brown, represented Mr.. Jones' third wife, Tetyana Jones, in an international child custody case.. Mr.. Jones was accused of holding the infant, Astin, in the Dominican Republic to gain an advantage in his divorce action.. My case against Jones is about his oral gift of real estate, sexual harassment and related actions.. The factual information is completely different and unrelated. EXHIBIT B 5. I was never told I was part of his litigation team. During the period, March 12, 2013 to July 17 2013, when I was required to work in the Dominican Republic, to care for his child and other matters, is when Mr. Jones first made his oral promise of real estate, his promise to buy me a house,. 6.. As Mr.. Jones' personal assistant, I was to gather personal information and forward it to this legal team, Peter Donbavand, Melissa Figueroa and counsel Sam Bashara. I was never informed, nor assumed that I was part of any litigation team. I have no education in this field.. Mr.. Bashara never asked for my assistance Peter Donbavand was the person in the key role of liaison to his attorneys in San Antonio and in the Dominican Republic. 7.. On Saturday, August 30, 2014, as part of my employment, at Mr.. Jones' direction, I traveled with him, his girlfriend, his children, and the nanny to South Padre Island for the Labor Day weekend, in his 2014 Mercedes G450 On the morning of Sunday, August 31, 2014, when I refused to engage in a sexual encounter that I found offensive, he fired me.. However, he refused to allow me to return to San Antonio, forcing me to stay in that toxic environment.. I was forced to ride back to San Antonio with him and everyone else on Monday, September 1, 2014.. 8.. In response to discovery served by Allen Jones, attached as Exhibit A to this affidavit, I produced 97 pages responsive to what Allen Jones asked for in his Interrogatory No.. 12, and Request for Production No.. 70, that he now complains of.. Some were duplicates in that I produced emails both sent directly to my personal account, and those I forwarded to my work account I turned these documents over to my attorney, as requested by Allen Jones and his attorneys.. Ms. Brown has not represented Mr.. Jones' ex-wife since July of 2013.. I did not have these, nor had I used them in anyway myself, except to respond to his demands ,,A.WAP012% .d111.11 / Signature SWORN and SUBSCRIBED to before me on this of September 2015 t,1 1?4:4:, RAMONA 1. FLORES Notary Publi in and for State of Texas .4v." : r Notary Public, State of Texas My Commission Expires August 16, 2016 My commission expires: Ca/ )0 EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit CAUSE NO. CAUSE NO. 2014-CI-16674 2014-CI-16674 CEARTH CEARTH FAIRE FAIRE § § IN THE IN THE DISTRICT DISTRICT Plaintiff § § § § V. V. § § § § 150TH JUDICIAL DISTRICT 150TH JUDICIAL DISTRICT FMP SA FMP SA MANAGEMENT MANAGEMENT GROUP, GROUP, § § LLC, D/B/A LLC, D/B/A FOOD FOOD MANAGEMENT MANAGEMENT § § PARTNERS, LLC, PARTNERS, LLC, § § ALL JONES, ALL JONES, LLC, LLC, ALLEN ALLEN J J JONES, JONES, § § INDIVIDUALLY, AND INDIVIDUALLY, AND § § PETER DONBAVAND, PETER DONBAVAND, § § INDIVIDUALLY INDIVIDUALLY § § § § Defendants § § BEXAR COUNTY, BEXAR COUNTY, TEXAS TEXAS PLAINTIFF’S OBJECTIONS PLAINTIFF'S OBJECTIONS AND AND RESPONSES RESPONSES TO TO DEFENDANT DEFENDANT ALLEN ALLENJJ JONES' JONES’ FIRST SET FIRST SET OF OF INTERROGATORIES AND FIRST INTERROGATORIES AND FIRST REQUEST FOR PRODUCTION REQUEST FOR PRODUCTION TO: TO: Fmp Fmp SaSa Management Management Group, Group, LLC, LLC, D/B/A D/B/A Food Food Management Management Partners, Partners, LLC, LLC, All All Jones, LLC, Jones, LLC, Allen Allen J J Jones, Jones, and and Peter Peter Donbavand, Donbavand, Defendants, Defendants, by by and and through through their attorney their attorney of of record, record,Christine ChristineEEReinhard, Reinhard,17806 17806IH IH 10 10 West, Suite 400, West, Suite 400, San Antonio, Texas San Antonio, Texas 78257. 78257. Plaintiff, Cearth Plaintiff, Cearth Faire, serves these Faire, serves these objections objections and and answers answers to Defendant Allen to Defendant Allen J J Jones’ first Jones' first set set of of interrogatories interrogatories and and first first requests requests for for production. production. Respectfully submitted, Respectfully submitted, LAW OFFICE LAW OF OLGA OFFICE OF OLGA BROWN BROWN 111 Soledad, Suite 111 Soledad, Suite 1725 1725 San Antonio, Texas San Antonio, Texas 78205 78205 210/226-1550 telephone 210/226-1550 telephone 210/226-1884 facsimile 210/226-1884 facsimile Argyle2@sbcglobal.net Arbyle2@sbcglobal.net By: Is/ By: /s/ Olga Olga Brown Brown_______ OLGA BROWN OLGA BROWN State State Bar Bar No. No. 03155500 03155500 Attorney for Attorney for Plaintiff Plaintiff EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit CERTIFICATE OF CERTIFICATE OF SERVICE SERVICE II do do hereby hereby certify certify that that on on the 1st day the 1st day of of April April 2015, 2015,in inaccordance accordance with with the the T EXAS R TEXAS ULES OF RULES OFCCIVIL IVIL PROCEDURE PROCEDURE, , a true and a true andcorrect correctcopy copyofofthethe above and above and foregoing Plaintiff’s foregoing Plaintiff's Objections Objectionsandand Responses Responses to to Defendant Defendant Allen Allen JJ Jones’ Jones' First First Set Set of Interrogatories of Interrogatories and andFirst First Request RequestforforProduction Production toto Plaintiff Plaintiff was was furnished furnished to: to: Christine E Christine E Reinhard Reinhard SCHMOYER REINHARD LLP SCHMOYER REINHARD LLP 17806 IH 10 17806 IH 10 West, West, Suite Suite 400 400 San Antonio, Texas San Antonio, Texas 78257 78257 /s/ Olga /s/ Olga Brown Brown_______ OLGA BROWN OLGA BROWN 2 2 EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit PLAINTIFF’S OBJECTIONS PLAINTIFF'S OBJECTIONS AND AND RESPONSES RESPONSES TO TO DEFENDANT DEFENDANT ALLEN ALLEN JJ JONES'_ JONES’ FIRST SET FIRST SET OF OF INTERROGATORIES INTERROGATORIES INTERROGATORY NO. 1: Identify Identify each instance in each instance in which which you you contend contend Jones Jones "promised “promised Plaintiff Plaintiff that that he would he would buy buy aa home home and and transfer transfer ownership ownership to to her," her,” as as alleged alleged in inyour your Petition, Petition, including including the the dates on which dates on which such such promises promises were were made, the manner made, the manner in in which which Jones Jones allegedly allegedly made made such promises such promises (e.g., (e.g., by email, oral by email, oral communications, communications, etc.) etc.) and any witnesses and any witnesses to to such such communications. communications. ANSWER:Plaintiff ANSWER: Plaintiffobjects objects and anddeclines declines toto give give aa narrative narrative answer answerto to this this Interrogatory. Interrogatory. Subject Subject to and without to and without waiving waiving the the foregoing foregoing objection, objection,JuneJune 2013 while working 2013 while working 24/7 24/7 in the Dominican in the Dominican Republic, Republic, August August 2013 while celebrating 2013 while celebrating Mr.Mr. Jones' Jones’ birthday, birthday, and and numerous other conversations during the course of all evening/night work numerous other conversations during the course of all evening/night work as personal as personal assistant. assistant. INTERROGATORY NO. 2: If If you you contend contend youyou were employed by were employed by Jones, Jones, state state the the factual factual basis basis for for your your contention. contention. ANSWER: Plaintiff ANSWER: Plaintiff objects objects to to this this request request because because itit isis overly overly broad, broad, premature, premature, not not limited limited in in time time or scope, and or scope, and further further objects objects toto this this request request because because itit requires requires Plaintiff Plaintiff to marshal to marshal all all her her evidence evidence onon this this particular particular issue, issue, andand such such request request is is improper improper Subject Subject to to and without waiving and without waiving the the foregoing foregoingobjection, objection,please pleaserefer refertotoDEF-CJ-00065, DEF-CJ-00065, 0452/53, DEF-CF-00220-384.Plaintiff 0452/53, DEF-CF-00220-384. Plaintiffwill willsupplement supplement as as required required byby the the rules rules INTERROGATORY NO. 3: Identify Identify all documents supporting all documents supporting your your contention contentionthat that Jones Jones “authorized "authorized for the for the necessary necessary real estate transactions real estate transactions to to be initiated that be initiated would result that would result in a purchase in a purchase transaction and transaction an immediate and an immediate transfer transfer of of ownership," ownership,” as alleged in as alleged in your your Petition. Petition. ANSWER:Objection, ANSWER: Objection, duplicative. duplicative. Please Pleaserefer refertoto Plaintiffs Plaintiff’s Objections Objections and and Responses Responses to Defendant to Defendant ALL ALL JONES, JONES, LLC's LLC’s First First Set Set ofof Interrogatories, Interrogatories, Interrogatory Interrogatory No. No. 4, and 4, and Plaintiff’s Objections Plaintiff's Objectionsandand Responses Responses to Defendant FMP's to Defendant FMP’s Request Request for for Production, Production, Request No. Request No. 47. 47. INTERROGATORY NO. 4: Identify Identify all all copies copies of ofthe the“written "writtenagreement agreement [Jones [Jones promised promised to to execute] at closing, execute] at closing, giving [you] giving [you] full full title title and and interest interest to to the the home,” home," as as alleged in your alleged in your Petition. Petition. ANSWER:Objection, ANSWER: Objection, duplicative. duplicative. Please Pleaserefer refertoto Plaintiffs Plaintiff’s Objections Objections and and Responses Responses to Defendant to Defendant ALL ALL JONES, JONES, LLC's LLC’s First First Set Set of of Interrogatories, Interrogatories, Interrogatory Interrogatory No. No. 5, and 5, and Plaintiff’s Objections Plaintiff's Objectionsand and Responses Responses to Defendant FMP's to Defendant FMP’s Request Request forfor Production, Production, Request No. Request No. 60. 60. EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit INTERROGATORY NO. 5: Identify Identify all “necessary documents” all "necessary documents" Jones Jones promised promised to to sign “to give sign "to give Plaintiff Plaintiff full full and and complete ownership complete ownership of of the the home," home,” including including any such documents any such documents in in your your possession, possession, custody, and custody, control, whether and control, whether you you contend contend such such documents documents were were drafted, drafted, and the and the approximate date(s) on approximate date(s) on which which you you reviewed reviewed anyany such such documents. documents. ANSWER:Plaintiff ANSWER: Plaintiffobjects objects toto this this request request because because itit is is overly overly broad, broad, and and further further object object to this to this request request because because itit requires requires Plaintiff Plaintiff to to marshal marshal allall her evidence on her evidence on this this particular particular issue, issue, and such request and such request isis improper. improper. Subject Subject to toand andwithout without waiving waiving the the foregoing foregoing objection, Plaintiff objection, Plaintiff was was not not presented presented withwith any documents for any documents for review review byby Defendants. Defendants. Plaintiff will Plaintiff supplement when will supplement Defendants properly when Defendants properly and and completely completely respond respond to to Plaintiff’s request Plaintiff's request for documents under for documents under the possession, custody the possession, custody and control of and control of defendants. See defendants. See TRCP TRCP 193.1. 193.1. INTERROGATORY NO. 6: Identify Identify each manner in each manner in which which you you contend contend youyou "detrimentally “detrimentally relied relied upon [Defendant upon [Defendant Jones’s] Jones's] misrepresentation," as alleged in your Petition, including but not limited to misrepresentation,” as alleged in your Petition, including but not limited to any any costs or costs or expenses incurred based expenses incurred based onon such such alleged alleged misrepresentations. misrepresentations. ANSWER:Plaintiff ANSWER: Plaintiffobjects objects and anddeclines declines to to give give aa narrative narrative answer answerto to this this Interrogatory. Interrogatory. Subject Subject toto and and without without waiving waiving the the foregoing foregoing objection, objection, Plaintiff, Plaintiff, with with consent consent from from Defendants Jones Defendants Jones andand Donbavand, Donbavand, took took possession possession of of her her home home on on or or about about July July 30, 30, 2014, incurred 2014, incurred moving moving expenses, expenses, andand proceeded proceeded to to make makeimprovements, improvements, including including but but not not limited limited to to purchasing purchasing andand installing installing aa hot hot water water heater. heater. INTERROGATORY NO. 7: If you are If you seeking an are seeking an award award ofof any any sum sum of of money, money, whether whether byby damages damages or or otherwise, otherwise, state the state the full full amount amount ofof money money youyou seek seek and describe the and describe manner in the manner in which which the amount the amount was calculated. Your was calculated. Your description description should should include include each each element element or damage or or damage or component ofof recovery component recoverythat that you you seek, seek, the amount sought the amount sought for each element for each element or or component, the component, the manner manner in which each in which element or each element or component component waswas determined, determined, and and should identify should identify the the source source of of each each number used in number used in the the calculation. calculation. ANSWER: Plaintiff ANSWER: Plaintiff objects objects as this request as this request is duplicative. Please is duplicative. Please see seePlaintiff's Plaintiff’s Objections Objectionsand Responses to and Responses Defendant FMP's to Defendant FMP’s First First Set SetofofInterrogatories, Interrogatories, Interrogatory Interrogatory No. No. 15. 15. INTERROGATORY NO. 8: Identify Identify each act committed each act committed by by Jones Jones in in furtherance furtherance ofof the the "conspiracy' “conspiracy” alleged alleged inin your your Petition. Petition. ANSWER:Plaintiff ANSWER: Plaintiffobjects objects and anddeclines declines to to give give aa narrative narrative answer answerto to this this Interrogatory, Interrogatory, because because thethe request request asks asks for for information information that that is is available available from from Defendants' Defendants’ business business records records and said Defendants and said Defendants can can obtain obtain such such information information from from their their own own intracorporate intracorporate emails emails asas this this was was aa routine routine matter matter ofof conducting conducting business. Plaintiff objects business. Plaintiff objects because because this request this requires Plaintiff request requires Plaintiff to to marshal marshal all all her evidence on her evidence on this this particular particular issue, and issue, and 4 4 EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit such request such request isis improper improper .. Subject Subject to to and and without without waiving waiving the the foregoing foregoing objection, objection, see see Plaintiff’s objections Plaintiff's objectionsandand responses responsesto to Defendant Defendant FMP’s First Set FMP's First Set of ofInterrogatories, Interrogatories, Interrogatory Interrogatory17. Plaintiff will 17. Plaintiff will supplement supplement asas required required by by the rules. the rules. INTERROGATORY NO. 9: Identify Identify the the goal or objective goal or objective of of the conspiracy alleged the conspiracy in your alleged in your Petition. Petition. ANSWER:Plaintiff ANSWER: Plaintiff objects objects toto this this request request because because thethe answer answer is is based based onon information information obtained from obtained other persons, from other persons, and and not not on on information information toto which which the the Plaintiff Plaintiff can can verify verify under under oath. Plaintiff further oath. Plaintiff further objects objects and declines to and declines give aa narrative to give narrative answer answer to to this this interrogatory interrogatorybecause becausethe the request request asks for information asks for information that is available that is available from from Defendants and Defendants and Defendants' Defendants’ business business records, records, and said Defendants and said Defendants cancan obtain obtain such such information information from from their their own own intracorporate intracorporateemails, emails,voice voiceand and test test messages, messages, and and this this was was aa routine routine matter matter of of conducting conducting business. Subject to business. Subject to and and without without waiving waiving thethe foregoing objections, foregoing objections, Plaintiff Plaintiff would would state state objective objective of of conspiracy conspiracy was retaliation. was retaliation. INTERROGATORY NO. 10: Describe Plaintiff's Describe Plaintiff’s efforts effortsand and her methodology used her methodology used to identify and to identify locate any and locate any electronic electronic documents documents in in her her possession, possession, custody, custody, or or control, control, including including but but not not limited limited to emails to emails stored stored ininher hermommiesawitch@yahoo.com mommiesawitch@yahoo.com email email account account andand text text messages, responsive to messages, responsive to Defendant's Defendant’s Requests Requests for for Production. Production. ANSWER:Plaintiff ANSWER: Plaintiffobjects objectsasasthis thisrequest requestisis duplicative. duplicative. Plaintiff Plaintiff objects objects and and declines declines to give to give aa narrative narrative answer answer to to this this Interrogatory. Interrogatory. Subject Subject toto and and without without waiving waiving the the foregoing objection, foregoing objection, Plaintiff Plaintiff searched searched for for pdonbavand@foodmps.com”, pdonbavand@foodmps.com", “allenjones@foodmps.com”,ajones@foodmps.com "alien "allenjones@foodmps.com",ajones@foodmps.com “allen jones" jones” then then printed printed same. same. Text messages are Text messages are inin the the possession possession of of Defendants. Defendants. INTERROGATORY NO. 11: Identify Identify all search terms all search terms used used by byPlaintiff Plaintiff ininidentifying identifying andand locating locating documents documents maintained maintainedinin any any of of her herpersonal personalemail emailaccounts, accounts, including including thethe mommiesawitch@yahoo.com mommiesawitch@yahoo.com account, account, andand responsive responsive to to Defendant's Defendant’s Requests Requests forfor Production. Production. ANSWER:Plaintiff ANSWER: Plaintiff objects objects asas this this request request isis duplicative. duplicative. Plaintiff Plaintiff objects objects and and declines declines to give to give aa narrative narrative answer answer to to this this Interrogatory. Interrogatory. Subject Subject to to and and without without waiving waiving the the foregoing objection, Plaintiff searched for foregoing objection, Plaintiff searched for pdonbavand@foodmps.com", pdonbavand@foodmps.com”, “allenjones@foodmps.com”,ajones@foodmps.com "alien "allenjones@foodmps.com",ajones@foodmps.com “allen jones" jones” then then printed printed same. same. Text messages are Text messages are inin the the possession possession of of Defendants. Defendants. INTERROGATORY NO. 12: Identify Identify the the last last date on which date on which Plaintiff Plaintiff deleted deleted any any emails, emails, text text messages, messages, oror other other electronically electronically stored stored data in her data in her possession, possession, custody, custody, or or control, control, including including but but not not limited to emails limited to emails stored stored in inher hermommiesawitch@yahoo.com mommiesawitch@yahoo.com email email account, account, and and EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit describe in describe in detail detail steps steps taken taken byby Plaintiff Plaintiff to to ensure documents, data, ensure documents, data, and and information information responsive responsive toto Defendant’s Requests for Defendant's Requests for Production Production were were notnot deleted deleted or or lost lost during during this process. this process. ANSWER: Objection ANSWER: Objection as as this this request request isis duplicative. duplicative. Plaintiff Plaintiff further further objects objects asas this this request request calls calls for for answer answer that thatisisnot notin inevidence. Subjectto evidence. Subject toand andwithout without waiving waiving thethe foregoing objection, foregoing objection,TextTextmessages messagesrelevant relevanttoto this this suit suit are are inin the the possession possession of of Defendants. Plaintiff Defendants. Plaintiff has has not not deleted deleted emails emails or or other other electronically electronically stored stored data data in her in her possession, custody, or possession, custody, or control, control, and relevant to and relevant to this this suit. suit. INTERROGATORY NO. 13: Identify Identify the the email email accounts accounts you you have have had and/or currently had and/or currently have, have, whether whether created created byby you or you or for for your your use, use, since since November November 13, 13, 2012. Youranswer 2012. Your answershould should include include the the full full email address, the email address, date the the date the account account was was established, established, andand anan indication indication as to as to whether whether you you have sent and/or have sent and/or received received any any emails emails from from such such account(s) account(s) related related to to your employment your employment with with Defendants Defendants or or your your claims claims against against Defendants Defendants in in this this lawsuit. lawsuit. ANSWER: Plaintiff ANSWER: Plaintiff objects objects to to the the duplicative duplicative nature nature of of this this request. Please refer request. Please refer to to Plaintiff’s Objections Plaintiff's Objectionsand andResponses ResponsestotoDefendant DefendantALLALLJONES, JONES, LLC’s LLC's First First Set of Set of Interrogatories, Interrogatories, Interrogatory InterrogatoryNo. No. 17, 17, and and Defendant FMP’s, First Defendant FMP's, First Set Set of of Interrogatories, Interrogatories, Interrogatory Interrogatory No. No. 21. 21. 6 6 EXHIBIT EXHIBIT EXHIBIT A -- CF A CF Affidavit B Affidavit CEARTH FAIRE § IN THE DISTRICT Plaintiff V. 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, LLC, § D/B/A FOOD MANAGEMENT PARTNERS, LLC, ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, INDIVIDUALLY § VERIFICATION STATE OF TEXAS COUNTY OF BEXAR BEFORE ME, the undersigned authority, on this day personally appeared CEARTH FAIRE, known to me through TXDL NO *****898, SSN ***-**-4220 to be the person whose name is subscribed below and who being by me duly sworn on her oath deposed and said that She has read the foregoing and that the statements contained therein are within her personal knowledge and are true and correct CEARTH AIRE SWORN and SUBSCRIBED to before me on this 3 '•E: day ofilAtthi 2015 43.V.1,* Vl RAMONA.). FLORES i Notary Public, State of Texas . Pl i)(1114\14-- •• My Commission Expires Notary Pub is in and fo State of Texas %1,t3F0 August 16, 2016 My Commission EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit PLAINTIFF’S OBJECTIONS PLAINTIFF'S OBJECTIONS AND AND RESPONSES RESPONSES TO TO DEFENDANT DEFENDANT ALLEN ALLEN J J JONES’ JONES' FIRST REQUEST FIRST REQUEST FOR FOR PRODUCTION PRODUCTION GENERAL OBJECTIONS GENERAL OBJECTIONS PLAINTIFF OBJECTS PLAINTIFF OBJECTS BASED BASED ON ON TRCP TRCP 193.1, 193.1, PLAINTIFF PLAINTIFF IS IS NOT NOT REQUIRED REQUIRED TO TO PRODUCE DOCUMENTS EXCLUSIVELY PRODUCE DOCUMENTS EXCLUSIVELY IN IN THE THE CONTROL CONTROL AND AND POSSESSION OF POSSESSION OF DEFENDANTS. DEFENDANTS. 1. 1 W-2 forms W-2 forms or or 1099 1099 forms forms that that you you have have filed filed or or received received from from January January 1,1, 2010 to 2010 to the present. the present, RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectstotothe therequest requestforfordocuments documents unrelated unrelated to to her her employment with employment with Defendants Defendants andand the subject matter the subject matter of of this this suit. Plaintiff further suit. Plaintiff further objects, as objects, the best as the best documents documents are are in in the thepossession, possession, custody custody and and control control ofof Defendants. Defendants. Defendants have Defendants withheld such have withheld such documents documents from from Plaintiff. Plaintiff. Defendants were Defendants were sent sent aa Retention Retention Notice Noticeon onDecember December5,5,2014. Defendants are 2014. Defendants are in violation in violation of said notices, of said notices, and and Defendants Defendants are are guilty guilty of of spoliation spoliation of of relevant relevant documents. documents. 2. 2. Resumes that Resumes that you you have have prepared prepared since since January January 1, 1, 2010 to the 2010 to the present. present, RESPONSE: Plaintiff RESPONSE: Plaintiff objects objects to to the the request request for for documents documents unrelated unrelated to her to her employment with employment with Defendants Defendants andand the the subject subject matter matter of of this this suit. Subject to suit. Subject to and and without waiving without waiving the the foregoing foregoingobjection, objection,please pleasesee see Defendants’ Defendants' Bates Bates DEF-CJ- DEF-CJ- 00076/78 and Faire0001-02. 00076/78 and Faire0001-02. 3. 3. Your personal Your personal diaries, diaries, journals, journals, calendars, calendars, and/or and/or notes notes created created by by you you on or on or after November after November 13, 2012, that 13, 2012, that discuss discuss or or reference reference the the facts facts underlying underlying any of any of your claims your claims in in this this lawsuit. This request lawsuit. This request is is not not seeking seeking any any documents documents protected protected from discovery from discovery by by the attorney-client privilege. the attorney-client privilege. RESPONSE: RESPONSE: Objection, Objection, Plaintiff Plaintiff cannot cannot properly properly respond, respond, as the requested as the requested items were last in the possession of Defendant Allen Jones, in his personal safe, items were last in the possession of Defendant Allen Jones, in his personal safe, and further, and further, have have been withheld from been withheld from Plaintiff Plaintiffby byDefendants. Defendants.See SeeTRCP TRCP 193.1. 193.1. Further, Further, Defendants Defendants havehave withheld withheld such suchdocuments documentsfrom fromPlaintiff. Defendants Plaintiff. Defendants were sent were sent a Retention Notice a Retention Notice on on December December 5, 5, 2014. Defendants are 2014. Defendants areininviolation violation of said of said notices, notices, and and Defendants Defendants are are guilty guilty of of spoliation spoliation of of relevant relevant documents. documents. Plaintiff will Plaintiff seek appropriate will seek appropriate court court intervention intervention including, including, but but not limited to not limited to forensic examination forensic examination of of equipment equipment and and devices devices ofof Defendants. Defendants. 4. 4. Maps, charts, Maps, charts, tables, tables, diagrams, diagrams, and chronologies created and chronologies createdbyby you you on or after on or after November 13, November 13, 2012, 2012,that thatreference referencethe thefacts factsunderlying underlying any any of of your your claims claims in in this this lawsuit. This lawsuit. Thisrequest request isis not not seeking seeking any anydocuments documents protected protected from from discovery discovery by by the attorney-client the attorney-client privilege. privilege, EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit RESPONSE: Objection, RESPONSE: Objection,Plaintiff Plaintiff cannot cannot properly properly respond, respond, as the requested as the requested items were items were last last in in the the possession possession ofof Defendant Defendant Allen Allen Jones, Jones, in his personal in his personal safe, safe, and further, and further, have have been been withheld withheld from from Plaintiff Plaintiff by by Defendants. Defendants. SeeSee TRCP TRCP 193.1. 193.1. Further, Defendants Further, Defendants have have withheld withheldsuchsuchdocuments documentsfrom fromPlaintiff. Defendants Plaintiff. Defendants were sent were sent aa Retention Retention Notice Notice on on December December 5, 5, 2014. Defendants are 2014. Defendants are in in violation violation of said of said notices, notices, and and Defendants Defendants areare guilty guilty of of spoliation spoliation of of relevant relevant documents. documents. Plaintiff will Plaintiff will seek seek appropriate appropriate court court intervention intervention including, including, but but not limited to not limited to forensic examination forensic examination of of equipment equipment and and devices devices of Defendants. of Defendants. 5. 5. Videotapes, audiotapes, Videotapes, audiotapes, and photographs relating and photographs relating to your allegations to your allegations against against Defendants or Defendants or the the facts facts underlying underlyingany anyofofyour yourclaims claimsinin this this lawsuit. This lawsuit. This Request includes Request includes all all duplicate duplicate copies copies you you have have in your possession, in your possession, including including any any copies of copies of audio audio recordings. recordings, RESPONSE: Objection RESPONSE: Objection as the requested as the requested items items were were last last in the possession in the possession of of Defendants, and Defendants, only limited and only limited "responsive" “responsive” documents documents were were "recovered" “recovered” by by Defendants in Defendants in response response to to my my proper properdiscovery discoveryrequests. Plaintiff objects requests. Plaintiff objects toto this this request in request in that it assumes that it assumes such such documents documents are are in in possession possession of of Plaintiff. Such Plaintiff. Such documents are documents are inin possession possessionoo Defendants Defendantsororother otherthird thirdparties. parties. AllAll other other “responsive” documents "responsive" documentsare areinin the possession, custody the possession, custody and control of and control of Defendants, and Defendants, and have have been been withheld withheld from from Plaintiff Plaintiff by by Defendants. Defendants Defendants. Defendants were sent were sent a a Retention Retention Notice Notice onon December December 5, 5, 2014. Defendants are 2014. Defendants are in in violation violation of said of said notices, notices, andand Defendants Defendants are are guilty guilty of of spoliation spoliation ofof relevant relevant documents. documents. Plaintiff will Plaintiff will seek seek appropriate appropriate court court intervention intervention including, including, butbut not limited to not limited to forensic examination of equipment and devices of forensic examination of equipment and devices of Defendants. Defendants. 6. 6. Written, audiotaped, Written, audiotaped, or or videotaped videotaped statements statementsthat that you you have have taken from any taken from any person person whom whom you you believe believe may may have have knowledge knowledge of of facts relevant to facts relevant to the claims in the claims in your lawsuit. your lawsuit, RESPONSE: RESPONSE: None at None this time. at this time. Plaintiff Plaintiff will will supplement supplement asas required required byby the the rules. rules. 7. 7 Written, audiotaped, Written, audiotaped, or videotaped statements or videotaped statements inin which which you you allegedly allegedly complain complain of of unlawful discrimination unlawful discrimination and/or and/or retaliation retaliation during your employment during your employment with with Defendant. Defendant, RESPONSE: Plaintiff RESPONSE: Plaintiff objects objects because because this this request request requires requires Plaintiff Plaintiff to to marshal marshal all her all her evidence evidence on on this this particular particular issue, issue, and and such such request requestisisimproper. improper. Subject to Subject to and without and without waiving waiving the the foregoing foregoing objection, objection, please please refer refer to to Defendants' Defendants’ Bates Bates DEF-CF000607-000617. Plaintiff DEF-CF000607-000617. Plaintiff will will supplement supplement asas required required by by the the rules. rules. 8 8 EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit 8. 8. Correspondence, including Correspondence, including but but not not limited limited to to emails, emails, between between youyou and Defendant and Defendant Jones regarding any Jones regarding any of of the the facts facts underlying underlying your your claims claims inin this this lawsuit lawsuit dated dated after after November 13, November 13, 2012 2012 toto the the present. present. RESPONSE: Objection, RESPONSE: Objection,as asDefendants Defendants JonesJones isis in in possession possession and and control control of of such emails such emails between between him and Plaintiff, him and Plaintiff, and and furthers furthers have have withheld withheld same same from from Plaintiff, or Plaintiff, “redacted” same. or "redacted" same. See See TRCP TRCP 193.1. 193.1. Defendants Defendants were were sent sent a a Retention Notice Retention Notice onon December December5,5, 2014. Defendants are 2014. Defendants are inin violation violation of of said said notices, and notices, and Defendants Defendants are guilty of are guilty of spoliation spoliation of of relevant relevant documents. documents. Plaintiff Plaintiff will seek will seek appropriate appropriate court court intervention intervention including, including, but but not limited to not limited to forensic forensic examination of examination of equipment equipment and and devices devices of of Defendants. Subject to Defendants. Subject to and and without without waiving the waiving the foregoing foregoing objection, objection, please please seesee Faire003-131. Faire003-131. 9. 9. Correspondence, including Correspondence, including but but not not limited limited to to emails, emails, between between you you and Defendant and Defendant Donbavand regarding Donbavand regarding any any of of the the facts facts underlying underlying your claims in your claims in this this lawsuit lawsuit dated dated after November after November 13, 13, 2012 2012 to to the the present. present. RESPONSE: RESPONSE: Objection, Objection, as Defendants Jones as Defendants Jones and Donbavand are and Donbavand in are in possession possession andand control control of such emails of such emails between between Donbavand Donbavand and and Plaintiff, Plaintiff, and and further Defendants further Defendants withheld withheld same same from Plaintiff, or from Plaintiff, or "redacted" “redacted” same. same. Defendants were Defendants were sent sent aa Retention Retention Notice Notice on on December December 5, 5, 2014. Defendants are 2014. Defendants are in violation in violation of of said said notices, notices, andand Defendants Defendants are are guilty guilty of of spoliation spoliation of of relevant relevant documents. Plaintiff documents. Plaintiff will seek appropriate will seek appropriate court intervention including, court intervention including, but not but not limited to limited to forensic forensic examination examination of of equipment equipment and and devices devices ofof Defendants. Subject Defendants. Subject to and to and without without waiving waiving the the foregoing foregoing objection, objection, please please see Faire0132-0256. see Faire0132-0256. 10. 10. Correspondence, including Correspondence, includingbut butnot not limited limited to to emails, emails, between between you you and any and any employee or employee agent of or agent of Defendant Defendant FMP FMP regarding regarding any any of the facts of the facts underlying underlying your your claims in claims in this this lawsuit lawsuit dated dated after after November November 13,13, 2012 2012 to to the the present. present. RESPONSE: Objection, RESPONSE: Objection,as asDefendants Defendants Jones Jones isis in in possession possession andand control control of of such emails such emails between between him and Plaintiff, him and Plaintiff, and and furthers furthers have have withheld withheld same same from from Plaintiff, or Plaintiff, “redacted” same. or "redacted" same. See See TRCP TRCP 193.1. 193.1. Defendants Defendants were sent a were sent a Retention Notice Retention Notice on on December December5,5, 2014. Defendants are 2014. Defendants in violation are in violation of of said said notices, and notices, Defendants are and Defendants guilty of are guilty of spoliation spoliation of of relevant relevant documents. documents. Plaintiff Plaintiff will seek will seek appropriate appropriate court court intervention intervention including, including, but but not limited to not limited to forensic forensic examination of examination of equipment equipmentand and devices devicesofof Defendants. Please also Defendants. Please refer to also refer to Requests 8 Requests 8 and and 99 above. above. 11. 11. Correspondence, including Correspondence, includingbut butnot not limited limited to to emails, emails, between between you you and any and any employee or employee agent of or agent of Defendant Defendant All All Jones Jones regarding regarding any of the any of the facts facts underlying underlying your claims your claims in in this this lawsuit lawsuit dated dated after after November November 13,13, 2012 2012 to to the the present. present, EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit RESPONSE: Objection, RESPONSE: Objection,as asDefendant Defendant ALL ALL JONES JONES and and co-defendants co-defendants are in are in possession possession and and control control ofof such emails between such emails between any employee or any employee agent of or agent of Defendants, and Defendants, and further, See TRCP further, See TRCP 193.1. 193.1. Further, Further, Defendants Defendants havehave withheld withheld same from same from Plaintiff, Plaintiff, or or "redacted" “redacted” same same to to the the degree degree the the"responsive" ”responsive” documents are documents are virtually virtually blank blank Defendants Defendants were were sent sent a Retention Notice a Retention Notice on on December 5, December 5, 2014. Defendants are 2014. Defendants are in in violation violation of of said said notices, notices, and and Defendants Defendants are guilty are guilty of of spoliation spoliation ofof relevant relevant documents. documents. Plaintiff Plaintiff will will seek seek appropriate appropriate court court intervention including, intervention including, but but not limited to not limited to forensic forensic examination examination of of equipment equipment and and devices of devices Defendants. Subject of Defendants. Subject to to and and without without waiving waiving the the foregoing foregoing objection, objection, please please see Requests 8-10 see Requests 8-10 above. above. 12. 12. Correspondence, including Correspondence, includingbut butnot not limited limited to to emails, emails, between between youyou and any and any individual identified individual identified in your Responses in your Responses to to Defendants' Defendants’ Requests Requests for for Disclosure Disclosure regarding any regarding any of the facts of the facts underlying underlying your claims in your claims this lawsuit in this lawsuit dated dated after after November 13, November 13, 2012 2012 toto the the present. present. RESPONSE: Objection, RESPONSE: Objection,as asDefendants Defendants are are in in possession possession andand control control of of such such emails between emails between any any employee employee or or agent agent ofof Defendants, Defendants, andand further, Defendants further, Defendants have withheld have withheld same same from Plaintiff, or from Plaintiff, “redacted” same or "redacted" same to the degree to the degree thethe ”responsive” documents "responsive" documentsare arevirtually virtuallyblank. blank. .. Defendants Defendants were were sent sent aa Retention Retention Notice on Notice December 5, on December 5, 2014. Defendants are 2014. Defendants are in in violation violation of of said said notices, notices, and and Defendants are Defendants are guilty of spoliation guilty of spoliation of of relevant relevant documents. documents. Plaintiff Plaintiff will will seek seek appropriate court appropriate court intervention intervention including, including, but but not not limited limited to to forensic forensic examination examination of of equipment and equipment and devices devices ofof Defendants. Subject to Defendants. Subject to and and without without waiving waiving the the foregoing objection, foregoing objection, please please see see Requests Requests 8-11 8-11 above. above. 13. 13. Statements, documents, Statements, documents, videotapes, videotapes, and and audiotapes audiotapes you you submitted submitted to to the the EEOC, EEOC, Department of Department Labor, or of Labor, the TWC-Civil or the TWC-Civil Rights Rights Division Division regarding regarding any any of of the facts the facts underlying your underlying your claims claims in in this this lawsuit. lawsuit. RESPONSE: Please RESPONSE: Pleaserefer refertotoDefendants' Defendants’ Bates Bates DEF-CF000607-000617 DEF-CF000607-000617 14. 14. Statements, documents, Statements, documents, videotapes, videotapes, and and audiotapes audiotapes you received from you received from EEOC, EEOC, Department of Department Labor, or of Labor, the TWC-Civil or the TWC-Civil Rights Rights Division Division regarding regarding any any of of the facts the facts underlying your underlying your claims claims in in this this lawsuit. lawsuit. RESPONSE: Please RESPONSE: Pleaserefer refertotoDefendants' Defendants’ Bates Bates DEF-CF000607-000617 DEF-CF000607-000617 15. 15. Rebuttal and Rebuttal and impeachment impeachment evidence evidence you you intend intend on on introducing introducing at at trial trial that that is not is not otherwise responsive otherwise responsive to Defendant’s Requests to Defendant's Requests for for Production Production or or Interrogatories Interrogatories propounded propounded on on you. you, RESPONSE: Plaintiff RESPONSE: Plaintiff objects objects as this request as this request is is overly overly broad, broad, and and because because this this request requires request requires Plaintiff Plaintiff to marshall her to marshal! evidence on her evidence this particular on this particular issue, issue, and and such request such request is is improper. Subject to improper. Subject to and and without without waiving waiving the the foregoing foregoing objection, objection, 10 10 EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit None at None at this this time. time. However, However,discovery discovery is is inin its itsearly earlystages, stages, ongoing, ongoing, and and Defendants’ have Defendants' have withheld withheld and/or and/or redacted redacted "responsive" “responsive” documents. documents. Defendants Defendants were sent were sent a Retention Notice a Retention Notice on on December December 5, 5, 2014. Defendants are 2014. Defendants areininviolation violation of said of said notices, notices, andand Defendants Defendants areare guilty guilty of of spoliation spoliation of of relevant relevant documents. documents. Plaintiff will Plaintiff seek appropriate will seek appropriate court court intervention intervention including, including, butbut not limited to not limited to forensic examination forensic examinationofof equipment equipmentand and devices devices of of Defendants. Plaintiff will Defendants. Plaintiff will supplement once supplement once she is afforded she is afforded access access totoproperly properly requested requested responsive responsive documents. documents. 16. 16. Documents submitted Documents submitted by you in by you in conjunction conjunction with with any any bankruptcy bankruptcy petition petition filed filed by by you since you since January January 1,1, 2010. 2010, RESPONSE: RESPONSE: Plaintiff objects, Plaintiff objects, as as this this request request is is irrelevant, irrelevant, and and will will not not lead to lead to admissible evidence admissible evidencerelated relatedtotothe thesubject subjectmatter matterofofthis thissuit. Subject to suit. Subject to and and without waiving without waiving the the foregoing foregoing objection, objection, none. none. 17. 17. Documents taken, Documents taken, received, received, kept, kept, or or generated generated by by aa health health care care provider provider relating relating to to any emotional any emotional distress distress or or mental mental anguish anguish you you claim claim as as damages damages inin this this lawsuit, lawsuit. RESPONSE: Plaintiff RESPONSE: Plaintiffwill will supplement. supplement. 18. 18. Medical records Medical records supporting supporting your your claim claim that that you you suffered suffered mental mental anguish anguish as as a result a result of Defendants’ of conduct and/or Defendants' conduct and/or omissions omissions as alleged in as alleged in this this lawsuit, lawsuit. RESPONSE: Plaintiff RESPONSE: Plaintiffwill will supplement. supplement. 19. 19. If you are If you are seeking seeking attorney's attorney’s fees, fees, the the contract(s) contract(s) for for legal legal services services between between you you and your and your counsel counsel in in this this case. case, RESPONSE: See RESPONSE: See Faire Faire 0257-0260. 0257-0260. 20. 20. If you are If you are seeking seeking attorney's attorney’s fees, fees, documents, documents, including including but but not not limited limited to to "time “time sheets,” bills, sheets," bills, invoices, invoices, and/or and/or receipts, receipts, that support your that support claim for your claim for reasonable reasonable attorney’s fees, attorney's costs, and fees, costs, and expenses expenses in in this this case. case. RESPONSE: :: See RESPONSE: SeeFaire Faire0261-0264. 0261-0264.Plaintiff Plaintiffwill willsupplement. supplement. 21. 21. Privilege log Privilege log of all documents of all documents withheld withheld from from production productiondue duetoto aa claim claim of of privilege. privilege, RESPONSE: None RESPONSE: None 22. 22. Documents relied Documents relied upon upon byby aa consulting consulting expert expert whose whose opinion(s) opinion(s) and/or and/or work work product product have have been reviewed by been reviewed by or or relied relied upon upon byby aa testifying testifying expert. expert. RESPONSE: None RESPONSE: None atatthis this time. time. Plaintiff Plaintiffwill willsupplement supplement as as required required by by the the rules. rules. 23. 23. Statements, Statements, reports, memoranda, notes, reports, memoranda, documents, and/or notes, documents, and/or other other written written instruments and/or instruments and/or tape recordings sent tape recordings sent to to or or received from any received from any current current or or former former EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit employee of employee of Defendant Defendant relating relating toto your your claims claims in in this this lawsuit. lawsuit. RESPONSE: None RESPONSE: None at at this this time. time. However, However, discovery discovery isis in in its its early early stages, stages, ongoing, and ongoing, and Defendants' Defendants’ have have withheld withheld and/or and/or redacted redacted "responsive" “responsive” documents. Plaintiff documents. Plaintiff will will supplement supplement onceonce she she is is afforded afforded access access to to properly properly requested responsive requested responsive documents documents TRCP TRCP 193.1 193.1 24. 24. Any documents Any documents identified identified in or relied in or relied upon upon in in your your Responses Responses to to Defendant's Defendant’s Requests for Disclosures. Requests for Disclosures. RESPONSE: Objection RESPONSE: Objectionas as this request requires this request requires Plaintiff Plaintiff to marshall her to marshal! her evidence on evidence on this this particular particular issue issue and and such such request request is is improper. improper. 25. 25. Any documents Any documents relied upon or relied upon or referenced referenced in in responding responding to to Defendant's Defendant’s Interrogatories. Interrogatories, RESPONSE: RESPONSE: Objection as Objection this request as this request requires requires Plaintiff Plaintiff to to marshal! marshall her her evidence on evidence on this this particular particular issue issue and and such such request request is is improper. improper. 26. 26. Documents created Documents created by you that by you that record, record, summarize, summarize, document document or or reference reference conversations or conversations or communications communicationsbetween betweenyou youand and any any current current oror former former employee of employee of Defendants Defendants about about your your claims claimsinin this this lawsuit. This Request lawsuit. This Request does does not seek not seek documents documents created created by by you in order you in order to to seek seek legal legal advice advice oror documents documents created at created at the the behest behest of of your your attorney. attorney, RESPONSE: Objection RESPONSE: Objectionasasthis thisrequest requestisisnonsensical. nonsensical. Subject Subject to to and and without without waiving the waiving the foregoing foregoing objection, objection, attorney-work product. attorney-work product. 27. 27. Correspondence, notes, Correspondence, notes, memoranda, memoranda,reports, reports, documents, documents,or or other other written or written or recorded material recorded material taken taken or received from or received from Defendants Defendants by Plaintiff, including by Plaintiff, including but but not limited not limited to, to, policies, policies, procedure procedure manuals, manuals, reports, reports, performance performance reviews, reviews, counselings, and/or counselings, and/or memoranda. memoranda, RESPONSE: See RESPONSE: See Defendants’ Defendants' Bates Bates stamped stamped documents documents produced produced and those and those withheld, as withheld, well as as well as those those redacted, redacted, inin response response toto Plaintiff's Plaintiff’s discovery discovery requests. requests. Defendants are Defendants are inin possession, possession, custody custody or control of or control of the the requested requested documents, documents, ifif any. Plaintiff any. Plaintiff has has requested requested all all of of the theabove above from from Defendants, Defendants, and and most most has has been been withheld withheld or or redacted redacted 28. 28. Documents discussing Documents discussing or referencing your or referencing your work work performance performance whilewhile employed employed with Defendant from November 13, 2012 to the with Defendant from November 13, 2012 to the present, present. RESPONSE: See RESPONSE: SeeDefendants' Defendants’BatesBatesstamped stamped documents documents produced produced and and those those withheld, as withheld, well as as well as those those redacted redacted in in response response toto Plaintiff's Plaintiff’s discovery discovery requests. requests. Defendants are Defendants in possession, are in possession, custody custody or control of or control the requested of the requested documents, documents, ifif any. Plaintiff any. Plaintiff has has requested requested all all of of the the above above from from Defendants, Defendants, and and most has been most has been withheld or withheld redacted or redacted 29. 29. Evaluations, reprimands, Evaluations, reprimands, or other documents or other documents discussing discussing your your performance performance or or employment status employment status with with Defendants Defendants since since November November 13, 13, 2012. 2012. 12 12 EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit RESPONSE: See RESPONSE: SeeDefendants' Defendants’Bates Batesstamped stamped documents documents produced produced and and those those withheld, as withheld, well as as well as those those redacted redacted in in response response toto Plaintiff's Plaintiff’s discovery discovery requests. requests. Defendants are Defendants in possession, are in possession, custody custody or control of or control the requested of the requested documents, documents, ifif any. Plaintiff any. Plaintiff has has requested requested all all of of the the above above from from Defendants, Defendants, and and most most has has been been withheld or withheld redacted or redacted 30. Documents received 30. Documents received from from employers employers toto whom whom you you have have inquired inquired about about employment at any time from January 1, 2014 to the present. employment at any time from January 1, 2014 to the present, RESPONSE: None RESPONSE: None 31. 31. Documents received Documents received from employers that from employers that have have made made you an offer you an offer of of employment employment at any at any time time from from January January 1,1, 2014 2014 toto the the present. present. RESPONSE: None RESPONSE: None atat this this time. time. Plaintiff Plaintiff will will supplement. supplement. 32. 32. Documents, including Documents, including but but not limited to not limited to written written applications applications for for employment, employment, submitted to submitted to potential potential employer(s) employer(s)atatany any time time from from January January 1,1, 2014 2014 to the to the present. present, RESPONSE: None, RESPONSE: None, as as the the mechanisms mechanisms have have been been online. See response online. See response to to Defendants’ Interrogatory Defendants' Interrogatory No.6._ No.6. 33. 33. Documents you Documents you intend intend to offer as to offer as an an exhibit exhibit during during any any proceeding, proceeding, deposition, deposition, hearing, or hearing, or trial trial of of this this lawsuit. lawsuit, RESPONSE: Objection, RESPONSE: Objection,asas this this request request is is premature, premature, and and Plaintiff Plaintiff is is not not required required to marshal! to marshall all all evidence evidenceat at this thistime. Further, Plaintiff time. Further, Plaintiff has has requested requested all all of of the the above from above from Defendants, Defendants, and and most has been most has been withheld withheld or or redacted. redacted. Discovery Discovery isis ongoing, Plaintiff ongoing, Plaintiff will will supplement supplement shouldshould Defendants' Defendants’ ever ever produce produce responsive responsive documents properly documents properly requested requested by by Plaintiff. Plaintiff. 34. 34. Emails you Emails you sent sent toto or or received received from from any any current current or or former former employee employee of of Defendant Defendant that discuss that discuss oror evidence evidence your your claims claims in in this this lawsuit. lawsuit. RESPONSE: See RESPONSE: SeeDefendants' Defendants’BatesBatesstamped stampeddocuments documents produced produced and and those those withheld, as withheld, well as as well as those those redacted redacted in in response response to to Plaintiff's Plaintiff’s discovery discovery requests. requests. Defendants are Defendants in possession, are in possession, custody custody or control of or control the requested of the requested documents, documents, ifif any. Plaintiff any. Plaintiff has has requested requested all all of of the the above above from from Defendants, Defendants, and and most most has has been been withheld or withheld redacted. Plaintiff or redacted. Plaintiff will will supplement supplement should should Defendants' Defendants’ ever ever produce produce responsive documents responsive documents properly properly requested requested by by Plaintiff. Plaintiff. 35. 35. Documents that Documents that support support your your claim claim for for back back pay pay as as alleged alleged inin your your Petition. Petition. RESPONSE: See RESPONSE: See Defendants’ Defendants' Bates Bates stamped stamped documents documents produced produced and those and those withheld, as withheld, well as as well as those those redacted redacted in in response response toto Plaintiff's Plaintiff’s discovery discovery requests. requests. Defendants are Defendants in possession, are in possession, custody custody or control of or control the requested of the requested documents, documents, ifif any. Plaintiff any. Plaintiff has has requested requested all all of of the the above above from from Defendants, Defendants, and and most most has has been been withheld or withheld redacted. Plaintiff or redacted. Plaintiff will will supplement supplement should should Defendants' Defendants’ ever ever produce produce responsive documents responsive documents properly properly requested requested by by Plaintiff. Plaintiff. EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit 36. 36. Documents that Documents that support support your your claim claim for for front front pay pay as as alleged alleged inin your your Petition. Petition. RESPONSE: See RESPONSE: See Defendants’ Defendants' Bates Bates stamped stamped documents documents produced produced and those and those withheld, as withheld, well as as well as those those redacted redacted in in response response toto Plaintiff's Plaintiff’s discovery discovery requests. requests. Defendants are Defendants in possession, are in possession, custody custody or control of or control the requested of the requested documents, documents, ifif any. Plaintiff any. Plaintiff has has requested requested all all of of the the above above from from Defendants, Defendants, and and most has been most has been withheld or withheld redacted. Plaintiff or redacted. Plaintiff will will supplement supplement should should Defendants' Defendants’ ever ever produce produce responsive documents responsive documents properly properly requested requested by by Plaintiff. Plaintiff. 37. 37. Documents that Documents support your that support your claim claim for for "non-economic" “non-economic” damages, damages, as alleged in as alleged in your Petition. your Petition, RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectstoto this this request request because because itit requires requires Plaintiff Plaintiff to to marshal all marshal her evidence all her evidence on on this this particular particular issue, issue, and and such such request request is is improper. improper. Plaintiff will Plaintiff will supplement supplement pursuant pursuant toto the the rules. rules. 38. 38. Documents revealing Documents revealing your your gross gross and net income, and net income, including including benefits, benefits, since since January January 1,1, 2010 2010 to to the the present. present, RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectsto to the the request request for documents unrelated for documents unrelated to her to her employment with employment with Defendants Defendants and and the the subject subjectmatter matterofof this this suit. Plaintiff further suit. Plaintiff further objects, as objects, the best as the best documents documents are in the are in the possession, possession, custody custody and control of and control of Defendants. Defendants Defendants. Defendants have have withheld withheld and/or and/or redacted redacted such such documents documents from from Plaintiff Plaintiff 39. 39. Documents supporting Documents supporting your contention that your contention that "Defendant “Defendant Jones Jones promised promised Plaintiff Plaintiff that he that he would would buy buy aa home home andand transfer transfer ownership ownership to” to" her, her, asas alleged alleged in in your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objects as as documents documents responsive responsive to to this this request request are are in in the the the possession, the possession, custody custody and and control control of of Defendants, Defendants, including including email email communication between communication between Jones Jones and and other otherdefendants Defendants have defendants Defendants have withheld withheld such documents such documents fromfrom Plaintiff. Defendants were Plaintiff. Defendants were sent sent aa Retention Retention Notice Notice onon December 5, December 5, 2014. Defendants are 2014. Defendants are in in violation violation of of said said notices, notices, and and Defendants Defendants are guilty are guilty of of spoliation spoliation of of relevant relevant documents. Plaintiff will documents. Plaintiff will seek seek appropriate appropriate court court intervention including, intervention including, but but not limited to not limited to forensic forensic examination examination of of equipment equipment andand devices of devices Defendants. of Defendants. 40. 40. Documents supporting Documents supporting your your contention contention that “Defendant Jones that "Defendant Jones intended intended to hide to hide his gift his gift from from the the other other Defendants Defendants named named in this lawsuit," in this lawsuit,” as alleged in as alleged in your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectsas as documents documents responsive responsive to to this this request request are are in in the the the possession, the possession, custody custody and and control control of of Defendants, Defendants, including including email email communication between communication between Jones Jones and andother otherdefendants Defendants have defendants Defendants have withheld withheld such documents such documents fromfrom Plaintiff. Defendants were Plaintiff. Defendants were sent sent aa Retention Retention Notice Notice onon December 5, December 5, 2014. Defendants are 2014. Defendants are in in violation violation ofof said said notices, notices, andand Defendants Defendants are guilty are guilty of of spoliation spoliation of of relevant relevant documents. Plaintiff will documents. Plaintiff will seek seek appropriate appropriate court court 14 14 EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit intervention including, intervention including, but but not limited to not limited to forensic forensic examination examination of of equipment equipment and and devices of devices Defendants.. Please of Defendants.. Please refer refertotoDefendants' Defendants’BATES BATES DEF-CF-00118, DEF-CF-00118, DEF-CF-000448, 00401 DEF-CF-000448, 00401 and and other other documents documents in in the the possession possession of of Defendants. Defendants. 41. 41. Documents supporting Documents supporting your your contention contention that that Defendant Defendant Jones Jones "authorized “authorized for [sic] for [sic] the necessary the necessary realreal estate estate transactions transactionstoto be be initiated initiated that that would would result result inin aa purchase purchase transaction transaction and and an immediate transfer an immediate transfer ofof ownership,” ownership," as as alleged alleged in in your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objects asas documents documents responsive responsive to to this this request request are are inin the the the possession, the possession, custody custody and and control control of of Defendants, Defendants, including including email email communication between communication between Jones Jones andandother otherdefendants Defendants have defendants Defendants have withheld withheld such documents such documents fromfrom Plaintiff. Defendants were Plaintiff. Defendants were sent sent aa Retention Retention Notice Notice on on December 5, December 5, 2014. Defendants are 2014. Defendants are in in violation violation of of said said notices, notices, and and Defendants Defendants are guilty are guilty of of spoliation spoliation ofof relevant relevant documents. Plaintiff will documents. Plaintiff will seek seek appropriate appropriate court court intervention including, intervention including, but but not limited to not limited to forensic forensic examination examination of equipment and of equipment and devices of devices Defendants. Please of Defendants. Please refer refer to to DEF DEF_CF-00401-410 CF-00401-410 and and DEF-CJ- DEF-CJ- 00085/86, DEF-CF-00118-00152 00085/86, DEF-CF-00118-00152and andother other documents documentsinin the possession of the possession of Defendants. Defendants. 42. 42. Documents evidencing Documents evidencing anyany Defendant’s alleged intent Defendant's alleged intent to gift the to gift the property property located located at 8647 at 8647 Timber Timber Place, Place, San San Antonio, Antonio, Texas Texas 78250 78250 to to Plaintiff. Plaintiff. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objects as as documents documents responsive responsive to to this this request request are are in in the the the possession, the possession, custody custody and and control control of of Defendants, Defendants, including including email email communication between communication between Jones Jones and andother otherdefendants Defendants have defendants Defendants have withheld withheld such documents such documents from from Plaintiff. Defendants were Plaintiff. Defendants were sent sent aa Retention Retention Notice Notice onon December 5, December 5, 2014. Defendants are 2014. Defendants are in in violation violation ofof said said notices, notices, andand Defendants Defendants are guilty are guilty of of spoliation spoliation ofof relevant relevant documents. Plaintiff will documents. Plaintiff will seek seek appropriate appropriate court court intervention including, but not limited to forensic examination of intervention including, but not limited to forensic examination of equipment and equipment and devices of devices of Defendants. Defendants. Please Please refer refer totoDEF_CF-00401-410 DEF_CF-00401-410 and and DEF-CJ- DEF-CJ- 00085/86, DEF- 00085/86, DEF- CJ-00085/86, CJ-00085/86, DEF-CF-00118-00152 DEF-CF-00118-00152 and and other other documents documents inin the the possession possession of of Defendants. Defendants. 43. 43. Documents that, Documents that, ifif executed, executed, would would transfer transfer ownership ownership of of the property located the property located at at 8647 8647 Timber Timber Place, Place, San San Antonio, Antonio, Texas Texas 78250 78250 to to Plaintiff. Plaintiff. RESPONSE: Please RESPONSE: Pleaserefer refer to to the the Pleadings Pleadings andand See See Defendants’ Defendants' BatesBates stamped stamped documents produced and those withheld, as well as those documents produced and those withheld, as well as those redacted in response redacted in response to Plaintiff's to Plaintiff’s discovery discovery requests. requests. Defendants Defendants areare in in possession, possession, custody custody or or control control of the of the requested requested documents, documents, ifif any. any. Plaintiff Plaintiff has requested all has requested all of the above of the above from from Defendants, and Defendants, and mostmost has has been been withheld withheld oror redacted. Plaintiff will redacted. Plaintiff will supplement supplement should Defendants' should Defendants’ ever ever produce produce responsive responsive documents documents properly properly requested requested by by Plaintiff. Plaintiff. 44. 44. Documents evidencing Documents evidencing Plaintiff’s “moving expenses. Plaintiff's "moving expenses. RESPONSE: "Plaintiff RESPONSE: ”Plaintiff objects objects because this request because this request requires requires Plaintiff Plaintiff to to marshal marshal all all EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit her evidence her evidence on on this this particular particular issue, issue, and and such such request request isis improper. Subject to improper. Subject to and and without waiving without waiving the the foregoing foregoing objection, objection, Plaintiff Plaintiff will will supplement supplement when when Defendants Defendants properly properly and completely respond and completely respond to Plaintiff’s request to Plaintiff's request forfor documents documents under under the the possession, possession, custody custody and and control control of of defendants. defendants. SeeSee TRCP TRCP 193.1. 193.1. 45. 45. Documents evidencing Documents evidencing Plaintiff’s “expenses in Plaintiff's "expenses in making making repairs repairs to the residence to the residence to to make itit habitable. make habitable. RESPONSE: ”" Please RESPONSE: Please see see Faire0265-0272 Faire0265-0272 and objections and and objections and responses responses to to Request 8 Request 8 and and 9 9 above. above. 46. 46. A copy A copy of of the the "inspection “inspection report” report" identified identified in in Paragraph Paragraph 13 13 of of your your Petition. Petition, RESPONSE: See RESPONSE: SeeDefendants’ Defendants' DEF-CF-00119-00144. DEF-CF-00119-00144. 47. 47. A copy A copy of of the the "one-month “one-month lease” lease" identified identified in in Paragraph Paragraph 13 13 of of your your Petition. Petition, RESPONSE: Please RESPONSE: Please refer refer to to BATES BATES DEF-CJ-00085-00086. DEF-CJ-00085-00086. 48. 48. Documents supporting Documents supporting your your contention contention thatthat “Plaintiff "Plaintiff had had clear clear title title to her 2005 to her 2005 Mini Cooper," Mini Cooper,” as as alleged alleged in in your your Petition. Petition. RESPONSE: Please RESPONSE: Pleaserefer refer to to the the Pleadings Pleadings andand See See Defendants’ Defendants' Bates Bates stamped stamped documents produced documents produced and and those those withheld, withheld, asas well well as those redacted as those redacted in in response response to Plaintiff's to Plaintiff’s discovery discovery requests. requests. Defendants Defendants are are in in possession, possession, custody custody or or control control of the of the requested requested documents, documents, ifif any. any. Plaintiff Plaintiff has requested all has requested all of the above of the above from from Defendants, and Defendants, and most most has has been been withheld withheld or or redacted. Plaintiff will redacted. Plaintiff will supplement supplement should Defendants' should Defendants’ produce produce responsive responsive documents documents properly properly requested requested by by Plaintiff. DEF-CF-00514 Plaintiff. Please also DEF-CF-00514 Please also see see Faire0273-279. Faire0273-279. 49. 49. A copy A copy of of the the "payment “payment plan" plan” identified identified in in Paragraph Paragraph 15 15 of of your your Petition. Petition. RESPONSE: Please RESPONSE: Pleaserefer refer to to the the Pleadings Pleadings andand See See Defendants’ Defendants' Bates Bates stamped stamped documents produced documents produced and and those those withheld, withheld, asas well well as those redacted as those redacted in in response response to Plaintiff's to Plaintiff’s discovery discovery requests. requests. Defendants Defendants areare in in possession, possession, custody custody or or control control of the of the requested requested documents, documents, ifif any. any. Plaintiff Plaintiff has requested all has requested all of the above of the above from from Defendants, and Defendants, and most most has has been been withheld withheld oror redacted. Plaintiff will redacted. Plaintiff will supplement supplement should Defendants' should Defendants’ ever ever produce produce responsive responsive documents documents properly properly requested requested by by Plaintiff. Plaintiff. 50. 50. Documents supporting Documents supporting your your contention contention that “immediately before that "immediately before the firing, [you the firing, [you had] been had] been given given a a raise raise in in pay pay and and additional additional duties,” duties," as as alleged alleged in in your your Petition. Petition, RESPONSE: See RESPONSE: See DEF-CJ-00065. DEF-CJ-00065. 51. 51. Documents supporting Documents supportingyouryour contention contentionthat that youyou were asked to were asked to "perform “perform employment duties employment duties that that were were not in furtherance not in furtherance of of the the corporate corporate business," business,” asas alleged in alleged in your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectsto tothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit requires requires Plaintiff Plaintiff to to marshal marshal all all her her evidence evidence on on this this 16 16 EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit particular particular issue, issue, and and such such request request is is improper. Subject to improper. Subject to and and without without waiving waiving the the foregoing objection, foregoing objection, please pleaserefer referto to2013-CI-04328 2013-CI-04328and and2013-C1-11046. 2013-CI-11046. 52. 52. Documents supporting Documents supporting youryour contention contentionthatthat “Donbavand "Donbavand… ... was was aware aware of the of the employment violations employment violations …,” as alleged ...," as alleged inin your your Petition. Petition. RESPONSE: See RESPONSE: See Defendants’ Defendants' BatesBates stamped stamped documents documents produced produced and those and those withheld, as withheld, well as as well as those those redacted redacted in in response response toto Plaintiff's Plaintiff’s discovery discovery requests. requests. Defendants are Defendants in possession, are in possession, custody custody or control of or control the requested of the requested documents, documents, ifif any. Plaintiff any. Plaintiff has has requested requested all all of of the the above above from Defendants, and from Defendants, most has and most has been been withheld or withheld redacted. Plaintiff or redacted. Plaintiffwill willsupplement supplement should should Defendants' Defendants’ produce produce responsive documents responsive documents properly properly requested requested byby Plaintiff TRCP 193.1. Plaintiff TRCP 193.1. 53. 53. Documents supporting Documents supporting your contention that your contention that Defendants Defendants have have "circulat[ed] “circulat[ed] malicious rumors malicious rumors about about the Plaintiff,” as the Plaintiff," as alleged alleged inin your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectsto tothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit requires requires Plaintiff Plaintiff to to marshal marshal allall her her evidence evidence onon this this particular issue, and such request is improper. Subject to and without particular issue, and such request is improper. Subject to and without waiving the waiving the foregoing objection. foregoing See DEF-CJ-00064, objection. See DEF-CJ-00064, DEF-CJ-000111-15, DEF-CJ-000111-15, DEF-CF-00456, DEF-CF-00456, 00463 Plaintiff will 00463 Plaintiff will supplement supplement when when Defendants Defendants properly properly and and completely completely respond to respond Plaintiff’s request to Plaintiff's request for for documents documents under under the the possession, possession, custody custody and and control of control of defendants. defendants. See See TRCP TRCP 193.1. 193.1. 54. 54. The "written The “written agreement" agreement” Defendant Defendant Jones Jones allegedly allegedly promised promised to execute at to execute at closing, as closing, as alleged alleged in in Paragraph Paragraph 22 22 of of your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectstotothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit requires requires Plaintiff Plaintiff to to marshal marshal all all her her evidence evidence on on this this particular particular issue, issue, and and such such request request is is improper. Subject to improper. Subject to and and without without waiving waiving the the foregoing objection, foregoing objection, Plaintiff Plaintiff will supplement when will supplement when Defendants Defendants properly properly and and completely respond completely respond to Plaintiff’s request to Plaintiff's request forfor documents documents under under thethe possession, possession, custody and custody and control control of of defendants. defendants. See See TRCP TRCP 193.1. 193.1. 55. 55. Any documents Any documents that that existed existed atat the time of the time of closing closing and and would would "giv[e “giv[e you] full title you] full title and interest and interest toto the the home," home,” asas alleged alleged in in your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectstotothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit requires requires Plaintiff Plaintiff to to marshal marshal all all her her evidence evidence onon this this particular particular issue, issue, and and such such request request is is improper. Subject to improper. Subject to and and without without waiving waiving the the foregoing objection, Subject to and without waiving the foregoing objection, foregoing objection, Subject to and without waiving the foregoing objection, Plaintiff Plaintiff will supplement will supplement when when Defendants Defendants properly properly and completely respond and completely respond to Plaintiff’s to Plaintiff's request for request documents under for documents under the possession, custody the possession, custody and and control control ofof defendants. defendants. See TRCP See TRCP 193.1. 193.1. 56. 56. Documents supporting Documents supportingyour your contention contentionthat Defendants made that Defendants made “a false "a false representation or representation or concealment concealmentof of material material facts concerning the facts concerning real estate the real estate transaction,” as transaction," as alleged alleged inin your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectsto tothis this request request because because itit is is overly overly broad, broad, and and further further EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit object to object to this this request request because because itit seeks seeks data data or or information information that that exists exists in in electronic electronic or magnetic or magnetic form form in in the the sole sole control control of of Defendants, Defendants, further further Plaintiff Plaintiff objects objects because because this request this request requires requires Plaintiff Plaintiff to marshal all to marshal her evidence all her evidence onon this this particular particular issue, issue, and such and such request request is is improper. improper. Subject Subject to toand andwithout without waiving waiving the the foregoing foregoing objection, Plaintiff objection, Plaintiff will supplement when will supplement when Defendants Defendants properly properly andand completely completely respond to respond Plaintiff’s request to Plaintiff's request for for documents documents under under thethe possession, possession, custody custody and and control of control of defendants. defendants. See See TRCP TRCP 193.1. 193.1. 57. 57. Documents supporting Documents supporting youryour contention contention thatthat Defendants Defendants "made “made representation representation with knowledge, with knowledge, actual actual oror constructive, constructive, of of those those facts,” facts," as as alleged alleged inin your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectstotothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit seeks seeks data data oror information information thatthat exists exists in in electronic electronic or magnetic or magnetic form form in in the the sole sole control control ofof Defendants, Defendants, further further Plaintiff Plaintiff objects objects because because this request this request requires requires Plaintiff Plaintiff to marshal all to marshal her evidence all her evidence on on this this particular particular issue, issue, and such and such request request is is improper. improper. Subject Subject to toand andwithout without waiving waiving the the foregoing foregoing objection, Plaintiff objection, Plaintiff will supplement when will supplement when Defendants Defendants properly properly andand completely completely respond to respond Plaintiff’s request to Plaintiff's request for for documents documents underunder thethe possession, possession, custody custody and and control of control of defendants. defendants. See See TRCP TRCP 193.1. 193.1. 58. 58. Documents supporting Documents supporting youryour contention contention that that you “detrimentally relied you "detrimentally relied upon the upon the misrepresentation,” as misrepresentation," as alleged alleged inin your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectstotothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit seeks seeks datadata or or information information that that exists exists inin electronic electronic or magnetic or magnetic form form in in the the sole sole control control of of Defendants, Defendants, further further Plaintiff Plaintiff objects objects because because this request this request requires requires Plaintiff Plaintiff to marshal all to marshal her evidence all her evidence on on this this particular particular issue, issue, and such and such request request is is improper. improper. Subject Subject to toand andwithout without waiving waiving the the foregoing foregoing objection, Plaintiff objection, Plaintiff will supplement when will supplement when Defendants Defendants properly properly andand completely completely respond to respond Plaintiff’s request to Plaintiff's request for for documents documents underunder thethe possession, possession, custody custody and and control of control of defendants. defendants. See See TRCP TRCP 193.1. 193.1. 59. 59. Documents evidencing Documents evidencing any any costs costs oror expenses expenses incurred incurred by by you you based based upon your upon your alleged detrimental alleged detrimental reliance reliance upon upon Defendants’ Defendants' representations. representations. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectstotothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit seeks seeks data data oror information information that that exists exists in in electronic electronic or magnetic or magnetic form form in in the the sole sole control control of of Defendants, Defendants, further further Plaintiff Plaintiff objects objects because because this request this request requires requires Plaintiff Plaintiff to marshal all to marshal her evidence all her evidence on on this this particular particular issue, issue, and such request is improper. Subject to and without and such request is improper. Subject to and without waiving the foregoing waiving the foregoing objection, see objection, see Faire0265-0272. Faire0265-0272. Plaintiff will Plaintiff will supplement supplement when when Defendants Defendants properly properly and completely respond and completely respond to Plaintiff’s request to Plaintiff's request forfor documents documents underunder the the possession, possession, custody custody andand control control ofof defendants. defendants. See See TRCP TRCP 193.1. 193.1. 60. 60. Documents, including Documents, includingbut but not not limited limited to any invoices to any invoices for for work work performed, performed, evidencing "valuable evidencing “valuable improvements” improvements" you you contend contend you you have have made made to to the property the property located at located at 8647 8647 Timber Timber Place, Place, San San Antonio, Antonio, Texas Texas 78250. 78250, RESPONSE: DEF-CF-496/97 RESPONSE: DEF-CF-496/97 and and see see Request Request 65 65 above. above. 18 18 EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit 61. 61. Documents, including Documents, including but not limited but not limited toto emails emails andand correspondence, correspondence, evidencing evidencing any instance any instance in in which which Defendant Defendant Jones Jones "made “made sexual sexual advances advances toward toward Plaintiff," Plaintiff,” as alleged as alleged in in your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectstotothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit seeks seeks data data oror information information that that exists exists in in electronic electronic or magnetic or magnetic form form in in the the sole sole control control of of Defendants, Defendants, further further Plaintiff Plaintiff objects objects because because this request this request requires requires Plaintiff Plaintiff to marshal all to marshal her evidence all her evidence on on this this particular particular issue, issue, and such and such request request is is improper. improper. Subject Subject to toand andwithout without waiving waiving the the foregoing foregoing objection Plaintiff objection Plaintiff will supplement when will supplement when Defendants Defendants properly properly andand completely completely respond to respond Plaintiff’s request to Plaintiff's request for for documents documents underunder thethe possession, possession, custody custody and and control of control of defendants. defendants. See See TRCP TRCP 193.1. 193.1. 62. 62. Documents, including Documents, including but not limited but not limited toto emails emails andand correspondence, correspondence, evidencing evidencing any instance any instance in in which which you you complained complained of of Defendant Defendant Jones's Jones’s alleged alleged "sexual “sexual advances. advances, RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectstotothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit seeks seeks data data or or information information that that exists exists inin electronic electronic or magnetic or magnetic form form in in the the sole sole control control of of Defendants, Defendants, further further Plaintiff Plaintiff objects objects because because this request this request requires requires Plaintiff Plaintiff to marshal all to marshal her evidence all her evidence on on this this particular particular issue, issue, and such and such request request is is improper. improper. Subject Subject totoand andwithout without waiving waiving thethe foregoing foregoing objection, Plaintiff objection, Plaintiff will supplement when will supplement when Defendants Defendants properly properly andand completely completely respond to respond Plaintiff’s request to Plaintiff's request for for documents documents under under thethe possession, possession, custody custody and and control of control of defendants. defendants. See See TRCP TRCP 193.1." 193.1.” 63. 63. Documents, including Documents, including but not limited but not limited to to emails emails andand correspondence, correspondence, evidencing evidencing any instance any instance inin which which you you resisted resisted Defendant Defendant Jones’s Jones's alleged alleged “sexual "sexual advances. advances. RESPONSE: "” Plaintiff RESPONSE: Plaintiff objects objects toto this request because this request because itit is is overly overly broad, broad, and and further object further object to this request to this request because because itit seeks seeks data data or or information information that that exists exists inin electronic or electronic magnetic form or magnetic form inin the the solesole control control ofofDefendants, Defendants, further further Plaintiff Plaintiff objects because objects because this request requires this request requires Plaintiff Plaintiff to to marshal marshal all all her evidence on her evidence this on this particular particular issue, issue, and and such such request request is is improper. Subject to improper. Subject to and and without without waiving waiving the the foregoing objection, foregoing objection, Plaintiff Plaintiff will supplement when will supplement when Defendants Defendants properly properly and and completely respond completely respond to Plaintiff’s request to Plaintiff's request for for documents documents under under the the possession, possession, custody and custody and control control of of defendants. defendants. See See TRCP TRCP 193.1. 193.1. 64. 64. Documents supporting Documents supporting your your contention contention thatthat Defendant Defendant JonesJones “made "made itit clear that clear that continued employment continued employmentas as well well asas other job benefits other job benefits were were conditioned conditioned on her on her acceptance of acceptance the continued of the continued sexual sexual demands demands of Defendant Jones," of Defendant Jones,” as alleged in as alleged in your Petition. your Petition, RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectsto tothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit seeks seeks data data or or information information thatthat exists exists in in electronic electronic or magnetic or magnetic form form inin the the sole sole control control ofof Defendants, Defendants, further further Plaintiff Plaintiff objects objects because because this request this request requires requires Plaintiff Plaintiff to marshal all to marshal her evidence all her evidence on on this this particular particular issue, issue, and such and such request request is is improper. improper. Subject Subject totoand andwithout without waiving waiving the the foregoing foregoing EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit objection, Plaintiff objection, Plaintiff will supplement when will supplement when Defendants Defendants properly properly and and completely completely respond to respond Plaintiff’s request to Plaintiff's request for for documents documents under under the the possession, possession, custody custody and and control of control of defendants. defendants. See See TRCP TRCP 193.1. 193.1. 65. 65. Documents evidencing Documents evidencing any any instance instance in in which which youyou “refused "refused to to further submit to further submit to Defendant Jones's Defendant Jones’s inappropriate inappropriate requests," requests,” as as alleged alleged inin your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectsto tothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit seeks seeks datadata or or information information that that exists exists in in electronic electronic or magnetic or magnetic form form in in the the sole sole control control ofof Defendants, Defendants, further further Plaintiff Plaintiff objects objects because because this request this request requires requires Plaintiff Plaintiff to marshal all to marshal her evidence all her evidence on on this this particular particular issue, issue, and such and such request request is is improper. improper. Subject Subject to toand andwithout without waiving waiving the the foregoing foregoing objection, Plaintiff objection, Plaintiff will supplement when will supplement when Defendants Defendants properly properly andand completely completely respond to respond Plaintiff’s request to Plaintiff's request forfor documents documents underunder thethe possession, possession, custody custody and and control of control of defendants. defendants. See See TRCP TRCP 193.1. 193.1. 66. 66. Documents evidencing Documents evidencing anyany act act committed committed by by Donbavand Donbavand in furtherance of in furtherance the of the “conspiracy” alleged in your Petition. "conspiracy' alleged in your Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectstotothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit seeks seeks data data or or information information that that exists exists in in electronic electronic or magnetic or magnetic form form in in the the sole sole control control of of Defendants, Defendants, further further Plaintiff Plaintiff objects objects because because this request this request requires requires Plaintiff Plaintiff to marshal all to marshal her evidence all her evidence on on this this particular particular issue, issue, and such and such request request is is improper. improper. Subject Subject totoand andwithout without waiving waiving the the foregoing foregoing objection, see objection, see DEF-CF-00477,00478,00479, DEF-CF-00477,00478,00479, 00482/00483,00482/00483, 00486, 00486, 00492, 00496 00492, 00496 Plaintiff will Plaintiff will supplement supplement whenwhen Defendants Defendants properly properly andand completely completely respond respond to to Plaintiff’s request Plaintiff's request for documents under for documents under the possession, custody the possession, custody and and control control of of defendants. See defendants. SeeTRCP TRCP193.1_ 193.1 67. 67. Documents evidencing Documents evidencingany anyact act committed committedby by Kemp Kemp in furtherance of in furtherance the of the “conspiracy” alleged "conspiracy' alleged inin your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectstotothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit seeks seeks data data or or information information that that exists exists in in electronic electronic or magnetic or magnetic formform in in the the sole sole control control of of Defendants, Defendants, further further Plaintiff Plaintiff objects objects because because this request this request requires requires Plaintiff Plaintiff to marshal all to marshal her evidence all her evidence on on this this particular particular issue, issue, and such and such request request is is improper. improper. Subject Subject totoand andwithout without waiving waiving the the foregoing foregoing objection, see objection, see DEF-CF: DEF-CF-00486, 00490, 00491, 00486, 00490, 00491, 00496, 00496, 00509,00510, 00509,00510, 0051100511 Plaintiff will Plaintiff will supplement supplement whenwhen Defendants Defendants properly properly andand completely completely respond respond toto Plaintiff’s request for documents under the possession, custody Plaintiff's request for documents under the possession, custody and control of and control of defendants. See defendants. See TRCP TRCP 193.1 193.1 68. 68. Documents evidencing Documents evidencing your “payment of your "payment consideration” for of consideration" the property for the property located located at 8647 at 8647 Timber Timber Place, Place, San San Antonio, Antonio, Texas Texas 78250, 78250, asas alleged alleged in in your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffobjects objectsto tothis this request request because because itit is is overly overly broad, broad, and and further further object to object to this this request request because because itit seeks seeks data data or or information information thatthat exists exists in in electronic electronic or magnetic or magnetic form form in in the the sole sole control control ofof Defendants, Defendants, further further Plaintiff Plaintiff objects objects because because this request this request requires requires Plaintiff Plaintiff to marshal all to marshal her evidence all her evidence on on this this particular particular issue, issue, 20 20 EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit and such and such request request is improper. Subject is improper. Subject to toand andwithout without waiving waiving the the foregoing foregoing objection, Plaintiff objection, Plaintiff will will supplement supplement when when Defendants Defendants properly properly and and completely completely respond to respond Plaintiff’s request to Plaintiff's request for for documents documents under under the the possession, possession, custody custody and and control of control of defendants. defendants. See See TRCP TRCP 193.1 193.1 69. 69. Documents evidencing Documents evidencing “valuable "valuable improvements” improvements" you you have have made made to the property to the property located at located at 8647 8647 Timber Timber Place, Place, San San Antonio, Antonio, Texas, Texas, as as alleged alleged in in your your Petition. Petition. RESPONSE: Plaintiff RESPONSE: Plaintiffwill willsupplement supplement when when Defendants Defendants properly properly and and completely completely respond to respond Plaintiff’s request to Plaintiff's request for for documents documents under under the the possession, possession, custody custody and and control of control of defendants. defendants. See See TRCP TRCP 193.1 193.1 and and Request Request 66 66 above. above. 70. 70. All emails All emails sent sent to to or or from from your your mommiesawitch@yahoo,com mommiesawitch@yahoo.com email email account account from from November 13, November 13, 2012 2012 toto present. present, RESPONSE: Objection, RESPONSE: Objection, as as Defendants Defendants seek seek information information protected protected by the by the attorney-client and attorney-client and work-product work-product privilege privilegeininthis this request. Subject to request. Subject to an an without without waiving the waiving the foregoing foregoing objection, objection, please please see see Plaintiff's Plaintiff’s Objections Objections and and Responses Responses to Defendant to Defendant FMP's FMP’s Interrogatory Interrogatory No. No. 18, 19 and 18, 19 and 20,20, and and Plaintiff's Plaintiff’s Objections Objections and Responses and Responses to Defendant FMP’s to Defendant FMP's Request Request for for Production Production No.No. 9, 9, 10, 10, 11, 11, 1212 and 13. and 13. Further, Further,SeeSeeDefendants' Defendants’Bates Batesstamped stamped documents documents produced produced and and those withheld, those withheld, as well as as well as those those redacted redacted in in response response to to Plaintiff's Plaintiff’s discovery discovery requests. Defendants requests. Defendants are are in possession, custody in possession, custody or control of or control of the the requested requested documents, ifif any. documents, any. Plaintiff Plaintiff has has requested requested all of the all of the above above from from Defendants, Defendants, and and most has most has been been withheld withheld or or redacted. Plaintiff will redacted. Plaintiff will supplement supplement should should Defendants' Defendants’ produce produce responsive responsive documents documents properly properly requested requested by by Plaintiff. Plaintiff. TRCP TRCP 193.1 193.1 71. 71. All emails All emails sent sent to to or or from from your your mommiesawitch@yahoo.com mommiesawitch@yahoo.com email email account account from from November 13, November 13, 2012 2012 toto present present regarding regarding your your claims claims in in this this lawsuit. lawsuit. RESPONSE: Objection, RESPONSE: Objection,as as Defendants Defendants seek seek information information protected protected by the by the attorney-client and attorney-client and work-product work-product privilege privilegeininthis this request. Subject to request. Subject to an an without without waiving the waiving the foregoing foregoing objection, objection, please please see see Plaintiff's Plaintiff’s Objections Objections andand Responses Responses to Defendant to Defendant FMP's FMP’s Interrogatory Interrogatory No. No. 18, 19 and 18, 19 and 20,20, and and Plaintiff's Plaintiff’s Objections Objections and Responses and Responses to Defendant FMP’s to Defendant FMP's Request Request for for Production Production No. No. 9,9, 10, 10, 11, 11, 1212 and 13. and 13. Further, Further,See SeeDefendants' Defendants’Bates Batesstamped stamped documents documents produced produced and and those withheld, those withheld, as well as as well as those those redacted redacted in in response response to to Plaintiff's Plaintiff’s discovery discovery requests. Defendants requests. Defendants are are in possession, custody in possession, custody or control of or control of the the requested requested documents, ifif any. documents, any. Plaintiff Plaintiff has has requested requested all of the all of the above above from from Defendants, Defendants, and and most has been withheld or redacted. Plaintiff will supplement should most has been withheld or redacted. Plaintiff will supplement should Defendants' Defendants’ produce produce responsive responsive documents documents properly properly requested requested by by Plaintiff. Plaintiff. 72. 72. All emails All emails sent sentfrom fromyour yourmommiesawitch@yahoo.com mommiesawitch@yahoo.com email email account account from from November 13, November 13, 2012 2012 to present to to present to any any person person identified identified in in your your Responses Responses to to Defendants’ Requests Defendants' Requests for for Disclosure. Disclosure. RESPONSE: RESPONSE: Objection, Objection, as Defendants seek as Defendants information protected seek information protected by the by the attorney-client and attorney-client and work-product work-product privilege privilegeininthis this request. Subject to request. Subject to an an without without waiving the waiving the foregoing foregoing objection, objection, please please see see Plaintiff's Plaintiff’s Objections Objections and and Responses Responses EXHIBIT EXHIBIT EXHIBIT A -- CF A B CF Affidavit Affidavit to Defendant to Defendant FMP's FMP’s Interrogatory Interrogatory No.No. 18, 19 and 18, 19 and 20, 20,and andPlaintiff's Plaintiff’s Objections Objections and Responses and Responses to to Defendant Defendant FMP’sFMP's Request Request for for Production ProductionNo. No.9,9,10, 10, 11, 11, 12 12 and 13. and 13. Further, Further,See SeeDefendants' Defendants’Bates Batesstamped stampeddocuments documents produced produced andand those withheld, those withheld, as well as as well as those those redacted redacted ininresponse response totoPlaintiff's Plaintiff’s discovery discovery requests. Defendants requests. Defendants areare in in possession, possession, custody custody or control of or control the requested of the requested documents, ifif any. documents, any. Plaintiff Plaintiff has has requested requested all all of of the the above from Defendants, above from Defendants, andand most has most been withheld has been withheld or or redacted. Plaintiff will redacted. Plaintiff will supplement supplement should should Defendants’ Defendants' produce produce responsive responsive documents documents properly properlyrequested requestedby byPlaintiff. Plaintiff.TRCP TRCP 193.1 193.1 73. 73. AllAll emails emails received received at at youryour mommiesawitch@yahoo.com email mommiesawitch@yahoo.com email account account fromfrom November 13, November 13, 2012 2012totopresent presentfrom from any anyperson person identified identified in in your your Responses Responses to to Defendants’ Requests Defendants' Requests forfor Disclosure. Disclosure. RESPONSE: Objection, RESPONSE: Objection, as as Defendants Defendants seekseek information information protected protected by the by the attorney-client and attorney-client and work-product work-productprivilege privilegeininthis thisrequest. Subject to request. Subject to an an without without waiving the waiving foregoing objection, the foregoing objection, please please see Plaintiff’s Objections see Plaintiff's Objections andand Responses Responses to Defendant to Defendant FMP's FMP’s Interrogatory Interrogatory No.No. 18, 19 and 18, 19 and 20,20,and andPlaintiff's Plaintiff’s Objections Objections and Responses and Responses to to Defendant Defendant FMP’s FMP's Request Request for for Production ProductionNo. No.9,9,10, 10, 11, 11, 12 12 and 13. and 13. Further, Further,See SeeDefendants' Defendants’Bates Batesstamped stampeddocuments documents produced produced and and those withheld, those withheld, as well as as well as those those redacted redacted ininresponse response totoPlaintiff's Plaintiff’s discovery discovery requests. Defendants requests. Defendants are in possession, are in possession, custody custody or control of or control the requested of the requested documents, ifif any. documents, any. Plaintiff Plaintiff has has requested requested all all of of the the above from Defendants, above from Defendants, and and most has most been withheld has been withheld oror redacted. Plaintiff will redacted. Plaintiff will supplement supplement should should Defendants’ Defendants' produce produce responsive responsive documents documents properly properlyrequested requestedby byPlaintiff. Plaintiff.TRCP193.1 TRCP193.1 22 22 EXHIBIT C - MOTION TO DISQUALIFY EXHIBIT C - MOTION TO DISQUALIFY EXHIBIT C - MOTION TO DISQUALIFY EXHIBIT C - MOTION TO DISQUALIFY Appendix 6 FILED 9/8/2015 10:18:23 AM Donna Kay McKinney Bexar County District Clerk Accepted By: Bonnie Banks CEARTH FAIRE, § IN THE DISTRICT COURT § Plaintiff, § § v. § § FMP SA MANAGEMENT GROUP, LLC § 150TH JUDICIAL DISTRICT d/b/a FOOD MANAGEMENT PARTNERS, § LLC, ALL JONES, LLC, ALLEN J. JONES § INDIVIDUALLY, PETER DONBAVAND, § INDIVIDUALLY, AND JASON KEMP, § INDIVIDUALLY § Defendants. § BEXAR COUNTY, TEXAS ______________________________________________________________________________ DEFENDANT ALLEN J. JONES’ MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL ______________________________________________________________________________ For his Motion to Disqualify Plaintiff’s Counsel, Defendant Allen J. Jones (Defendant Jones” or “Jones”) respectfully shows the following: Defendant Jones requests the Court disqualify Plaintiff’s counsel, Olga Brown, from her continuing representation of Plaintiff Cearth Faire in the above-styled lawsuit. Brown’s disqualification is necessary and appropriate based on her inappropriate acceptance, review, and use of Jones’ confidential and privileged documents, which were wrongfully retained by her client, Faire. Defendant Jones further requests that the Court order the immediate return of his confidential and privileged documents in the possession of Faire or Brown, and that Faire and Brown be ordered not to make use of any information contained in these privileged documents. 1 1 On June 8, 2015, Defendant Jones demanded the immediate return of his confidential and privileged documents. Ex. A, June 8, 2015 Corr. Brown’s response, sent on June 22, 2015, refused to return the privileged documents or to otherwise take necessary steps to mitigate the harm to Jones. Ex. B, June 22, 2015 Corr. II. FACTUAL BACKGROUND 1. Plaintiff Cearth Faire is a former employee of Defendants FMP and All Jones. Ex. C, P’s 5th Am. Pet. ¶ 42. In this capacity, Faire served as a personal assistant to Jones, the CEO of FMP and a principal of All Jones. Ex. C, P’s 5th Am. Pet. ¶ 42. As Jones’ personal assistant, Faire was responsible for handling and assisting with various personal and business matters for Jones. Accordingly, Jones placed substantial trust and responsibility in Faire. Ex. D, Jones Aff. ¶ 3. 2. Defendant Jones was previously involved in a family law matter, including divorce and child custody proceedings. In that litigation, Jones’ ex-wife, Tatyana Jones, was also represented by Ms. Brown. Ex. D, Jones Aff. ¶ 4. These family law matters were ongoing during the tenure of Faire’s employment with FMP. In her position as Jones’ personal assistant, Faire played a key role in providing information to and reviewing communications from Jones’ personal legal counsel. Ex. D, Jones Aff. ¶ 5; Ex. E, P’s 4th Am. Pet. ¶ 10. As such, Faire was considered a member of Jones’ litigation team. Ex. D, Jones Aff. ¶ 5; see also Ex. E, P’s 4th Am. Pet. ¶ 10 (noting Faire “took care of Defendant Jones’ personal matters, including … assisting in his defense in a family law matter”). In this capacity, Faire assisted with various matters under the direction of Jones and his attorneys, including gathering facts, developing timelines, and providing other input relevant to the ongoing litigation. Ex. D, Jones Aff. ¶ 5. 3. On August 31, 2014, Faire was terminated from her employment with FMP after she exhibited erratic and threatening behavior during working time. Ex. C, P’s 5th Am. Pet. ¶ 47. After her termination, Faire filed suit against FMP, All Jones, and individual Defendants Jones, Peter Donbavand, and Jason Kemp. In this lawsuit, Faire is now represented by Brown, who represented Jones’ ex-wife throughout the above-referenced family law proceedings. 2 4. Defendant FMP previously served requests for Production on Faire. In response, Faire produced nearly 100 pages of Jones’ privileged and confidential communications, including numerous emails to and from his counsel in the family law matter. 2 Prior to Faire’s production of these privileged documents, Jones was completely unaware Faire had kept or retained possession of these documents following her termination of employment. Similarly, Jones was unaware Faire had disclosed these documents to Brown, counsel for Jones’ ex-wife. At no point after her termination did Jones authorize Faire to retain possession of his privileged documents, nor did Jones authorize Faire to disclose these documents to his ex-wife’s counsel, Ms. Brown. 5. On June 8, 2015, Defendants’ counsel wrote Brown regarding this issue. Ex. A, June 8, 2015 Corr. This correspondence outlined Faire’s improper possession and disclosure of Jones’ privileged communications and demanded Faire immediately take steps to avoid further prejudice to Jones, including: • The immediate return of all of Jones’ privileged documents and communications in Faire’s possession; • That Faire immediately provide an accounting and description of Jones’ information and documents provided or described to Brown; and • Brown’s immediate withdrawal from representation of Faire in this litigation. 3 Id. Brown, on behalf of Faire, responded on June 22, 2015, and refused to take any of the steps requested in Jones’ June 8 correspondence. Ex. B, Corr. 2 Apparently, during the course of her employment, Faire had retained Jones’ privileged and confidential documents and email in her personal email account, mommiesawitch@yahoo.com. At the termination of her employment, Faire did not return or destroy these privileged communications. Moreover, Jones does not know whether Faire and Brown may have possession of other privileged documents not produced in discovery. 3 Although the documents in issue are privileged, Jones will submit copies for an in camera review if the Court wishes to confirm the privileged nature of the documents. 3 III. ARGUMENT AND AUTHORITIES A. Brown’s representation of Faire, a former member of Jones’ “Litigation Team,” warrants Brown’s disqualification. Courts have recognized that counsel can be disqualified based on inappropriate communications with a member of the opposing party’s litigation team. In evaluating such situations, courts presume the litigation team member received confidential information about the litigation during employment. Moreover, courts have adopted a second, rebuttable presumption that the litigation team member disclosed confidential information in communications with counsel for the opposing party. If a party fails to rebut the second presumption. or if the presumption of shared confidences is conclusive, then counsel must be disqualified, as a matter of law. Application of this test is illustrated by various Texas cases. For example, In re RSR Corp., 405 S.W.3d 265 (Tex. App.—Dallas 2013, orig. proceeding) (pet. pending), plaintiff’s counsel had inappropriately interacted and communicated with the defendant’s former finance manager, Sobarz, in a breach of licensing agreement case. As a member of the defendant’s litigation team, Sobarz had access to the defendant’s privileged and confidential information. Id. at 268-69. Like Faire, Sobarz copied numerous privileged and confidential documents between defendant and its counsel. After resigning employment, Sobarz disclosed these documents and other privileged information to plaintiff’s counsel. Id. at 268-69, 272-73, 274-75. The court noted that “an attorney’s relationship with a … member of the opposing party’s litigation team carries the same unacceptably high risk of disclosure of confidential information as does the hiring by an attorney of a legal assistant who previously performed work for the opposing party.” 405 S.W.3d at 275, citing In re SAExploration, Inc., No. 14-12-00981-CV, 2012 WL 6017717, at *4 (Tex. App.—Houston [14th Dist.] Dec. 4, 2012, orig. proceeding). 4 Thus, applying the two-part test set forth above, if a party “fails to rebut the presumption that confidential information was shared by the non-attorney or if the presumption of shared confidences is conclusive, disqualification is required.” Id. at 273 (emphasis added), citing In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 824 (Tex. 2010) (orig. proceeding); In re Am. Home Prods. Corp., 985 S.W.2d at 76. Thus, given the finance manager’s status as a member of the defendant’s litigation team, the court of appeals concluded disqualification of plaintiffs’ counsel was required. Id. at 276. Similarly, in In re Am. Home Prods. Corp., 985 S.W.2d 68 (Tex. 1998) (orig. proceeding), Palacios, an individual described as legal assistant/investigator/consultant, was hired by Wyeth-Ayerst Laboratories Division of American Home Products, one of the defendants in litigation involving the Norplant contraceptive device, to work “freelance” with the defendant’s local counsel in the Norplant litigation and at the direction of Wyeth’s counsel. Id. at 71. Palacios subsequently went to work for plaintiffs’ counsel in the Norplant litigation. Id. at 72. The Texas Supreme Court concluded that, as a non-lawyer employee of the law firm, Palacios was subject to an irrebuttable presumption that “trial confidences and secrets were imparted” to her in connection with her prior employment, and a second, rebuttable presumption that she had shared confidences with her new employer. Id. at 74-76. Thus, applying the two- part test set forth above, the Supreme Court found disqualification of counsel for plaintiffs required because the plaintiffs failed to rebut the presumption that the legal assistant shared confidential information with their counsel. Id. at 71; see In re Bell Helicopter Textron, Inc., 87 S.W.3d 139, 146-47 (Tex. App.—Fort Worth 2002) (orig. proceeding) (applying American Home to former employee of party working as consultant to opposing party’s retained counsel). 5 Applying this precedent, there is no question Ms. Brown must be disqualified from continued representation of Faire in this litigation. Faire was Jones’ personal assistant and agent. Ex. C, P’s 5th Am. Pet. ¶ 42. In this role, Faire admits she was a member of Jones’ litigation team during his family law litigation proceedings. Ex. E, P’s 4th Am. Pet. ¶ 10; Ex. D, Jones Aff. ¶ 5. In these roles, Faire was directly involved in the development of Jones’ litigation strategy, as well as communications to and from his attorneys regarding the implementation of this strategy. Specifically, Faire (i) was privy to the advice, thoughts, and litigation strategy of Jones’ attorneys, (ii) undertook various assignments at the direction of Jones’ attorneys with respect to the litigation, and (iii) was copied on or had access to emails and other confidential and privileged documents of Jones in connection with the family law proceedings. Ex. D, Jones Aff. ¶ 5. Indeed, most of the 90 pages of privileged documents Faire provided to Ms. Brown reflect private communications with Jones’ attorney, including counsel’s impressions regarding legal strategy and analysis. In this matter, Ms. Brown accepted representation of Faire despite knowing Faire had been a member of Jones’ family law litigation team. Moreover, the undisputed evidence in this matter unambiguously establishes that Faire disclosed Jones’ privileged documents and communications to Ms. Brown. Further, the evidence shows that Brown has reviewed, retained, and used confidential and privileged information Faire obtained as a result of her employment as Jones’ personal assistant and agent and her activities as a member of his litigation team. Ex. B, Brown Corr.; Ex. G, Faire RFP Resp. Accordingly, the presumption is conclusive that Faire wrongfully shared Jones’ confidential and privileged information with Ms. Brown. The evidence also affirmatively forecloses Ms. Brown from claiming ignorance of Faire’s status as a member of Jones’ litigation team. Indeed, she affirmatively referenced that role in 6 Plaintiff’s various Petitions filed ot date. See, e.g., Ex. F, P’s Original Petition ¶ 10, and Ex. E, P’s 4th Am. Pet. ¶ 10 (both reciting that Faire was Jones’ personal assistant and assisted in his defense of family law matter). Moreover, during those family law proceedings, Ms. Brown even requested Faire’s deposition as an agent of Jones and an adverse witness. Additionally, in now representing Faire in this current lawsuit, it appears Ms. Brown reviewed the privileged documents and information in Faire’s possession and has made full use of them and will likely make full use of them in the family law case. See Ex. A, June 8, 2015 Corr.; Ex. B, June 22, 2015 Corr. Accordingly, under Texas law, disqualification of Brown is required. In re Am. Home Prods., 985 S.W.2d at 71, 74-77; In re RSR Corp., 405 S.W.3d at 276; see Hornsby, 2013 WL 2093155, at *5-7 (“[w]hen an attorney’s conduct gives the strong appearance of impropriety, casting doubt upon the integrity of the legal system, the court should act to guard that integrity”). B. Brown’s actions in reviewing, retaining, and using Jones’ confidential and privileged documents warrant her disqualification from this case. As shown above, Brown must be disqualified from her representation of Faire, given her inappropriate contacts with Faire as a member of Jones’ “litigation team.” However, Brown should also be disqualified on separate but related grounds, as she has wrongfully come into possession of Jones’ privileged communications and documents. To that end, the the Texas Supreme Court has recognized that a lawyer should be disqualified based on her review and possession of privileged information improperly obtained from an opposing party, even if the lawyer may not have been involved in obtaining the information. In re Meador, 968 S.W.2d 346, 351 (Tex. 1998). In Meador, the Texas Supreme Court set forth six factors to be considered by a trial court in determining whether an attorney must be disqualified in such situations: (1) Whether the attorney knew or should have known that the material was privileged; (2) The promptness with which the attorney notifies the opposing side that he or she has received its privileged information; 7 (3) The extent to which the attorney notifies the opposing side that he or she has received its privileged information; (4) The significance of the privileged information, i.e., the extent to which its disclosure may prejudice the movant’s claim or defense, and the extent to which return of the documents will mitigate that prejudice; (5) The extent to which movant may be at fault for the unauthorized disclosure; (6) The extent to which the nonmovant will suffer prejudice from the disqualification of his or her attorney. 968 S.W.2d at 351-52; Application of the Meador factors is best illustrated by In re Marketing Investors Corp., 80 S.W.3d 44 (Tex. App.—Dallas 1998, orig. proceeding). In that case, MacDonald, the former president of the company, was terminated for cause and subsequently sued by the company under various contractual and common law theories. Id. at 47. Id. at 46-47. In discovery, the company learned MacDonald had taken its privileged documents after his termination. Id. at 47. The company requested MacDonald return the documents he took and agree not to use them. Id. Unlike Faire in this matter, MacDonald in fact returned the originals, though he kept copies and refused to agree not to use them. Id. The company moved to disqualify MacDonald’s attorney from the case; the trial court denied the motion, and the company sought mandamus from the court of appeals. Applying the six Meador factors, the court of appeals concluded the trial court improperly refused to disqualify MacDonald’s counsel given that: • the attorney knew the documents were privileged documents of the company; • the attorney reviewed the company’s attorney-client privileged documents, despite knowing their privileged nature; • the attorney failed to promptly notify the company he had its privileged documents and instead simply produced them in discovery; • it was undisputed that the attorney extensively reviewed the documents, had referenced them in new pleadings, and had shown an intent to use them in the future; • the attorney refused to return all copies of the documents; • the issues relating to the privileged documents arose early in the litigation; and 8 • there was no evidence of an inability by MacDonald to employ different counsel, as the case did not involve novel issues that only a few attorneys were qualified to handle. Id. at 51-52; see Maldonado v. New Jersey, 225 F.R.D. 120, 139-42 (D.N.J. 2004) (applying six Meador factors, as set forth in Richards v. Jain, cited below, and concluding plaintiff’s attorneys should be disqualified for reviewing and using privileged documents of defendants); Richards v. Jain, 168 F. Supp. 2d 1195, 1205-09 (W.D. Wash. 2001) (applying six factors adopted from Meador and concluding that plaintiff’s attorneys should be disqualified for reviewing and failing to promptly return privileged documents of defendant wrongfully taken by plaintiff, who was former employee). Analysis of the Meador factors in the context of this case likewise demonstrates that Ms. Brown should be disqualified from continuing to represent Faire in this case. 1. Ms. Brown knew or should have known the material was privileged. As shown above, Ms. Brown has come into possession of and reviewed emails sent to or from Jones’ attorneys regarding his family law proceedings, in which she represents the opposing party. Given her status as counsel for Jones’ ex-wife, there can be no question Ms. Brown knew the documents provided by Faire were privileged. For example, each of the privileged communications in question was sent to or from Jones’ former counsel, including Mr. Sam Bashara and representatives of his office. Moreover, Mr. Brown, as an experienced attorney, should have immediately recognized the contents of the emails and other correspondence between Jones, his attorneys, and others contained attorney-client privileged information. Accordingly, this factor weighs in favor of Brown’s disqualification. See In re Meador, 968 S.W.2d at 353 (attorney should have known after most cursory review that documents were privileged) see also Maldonado, 225 F.R.D. at 139 (letter from defendants to their attorney should have placed counsel on notice it was privileged). 9 2. The promptness with which Ms. Brown notified the opposing side that she has its privileged information. Quite simply, Ms. Brown never explicitly or implicitly notified Jones’ counsel she was in possession of Jones’ confidential and privileged information. To the contrary, she simply produced Jones’ privileged documents during discovery in this lawsuit, while simultaneously basing Faire’s claims on information allegedly contained in Jones’ confidential and privileged documents. See Ex. A, June 8, 2015 Corr. of Defendant’s counsel; Ex. B, June 22, 2015 Brown Corr. Accordingly, this factor weighs in favor of Brown’s disqualification. See In re Meador, 968 S.W.2d at 353 (attorney failed to notify opposing party that he had privileged documents); In re Marketing Investors, 80 S.W.3d at 51 (counsel failed to notify opposing party he had party’s privileged documents, but just produced documents in response to defendant’s discovery requests); see also Maldonado, 225 F.R.D. at 139-40 (same); Richards, 168 F. Supp. 2d at 1206 (same). 3. The extent to which Ms. Brown reviewed and digested the privileged information. Only Ms. Brown can provide exact testimony regarding the extent to which she has “reviewed and digested” Jones’ privileged information. However, Ms. Brown’s communications thus far in this litigation suggest her review of these documents has been extensive. For example, Ms. Brown has repeatedly insinuated that Faire’s claim are, in large part, premised upon the content of privileged emails she received or sent while working on Jones’ litigation team. Similarly, as counsel for Faire, Ms. Brown reviewed and coordinated Faire’s document production, which itself consists of nearly 100 pages of Jones’ privileged communications. Accordingly, given the evidence presently available, this factor weighs in favor of Ms. Brown’s disqualification. See In re Meador, 968 S.W.2d at 353 (attorney appeared to have thoroughly reviewed privileged materials, as he directly referenced specific portions of documents in 10 pleadings); see also In re Marketing Investors, 80 S.W.3d at 51 (counsel found to have extensively reviewed privileged documents, based on references in pleadings and intent to use them in litigation); Richards, 168 F. Supp. 2d at 1206-07 (counsel’s reliance on privileged communications, based on reference to contents of letter, weighed in favor of disqualification). Both the privileged documents and information Faire wrongfully provided to Ms. Brown, as well as the underlying privileges themselves, belong solely to Jones. Texas Rule of Evidence 503(b) expressly provides that a “client has the privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services…” TEX. R. EVID. 503(b). The attorney-client privilege applies to communications between the client and counsel. TEX. R. EVID. 503(a)(2); In re Monsanto Co., 998 S.W.2d 917, 922 (Tex. App.—Waco 1999, orig. proceeding). Moreover, as an agent of Jones, Faire lacked the legal status or capacity to waive any privileges attached to Jones’ privileged communications. West v. Solito, 563 S.W.2d 240, 244 n.2, 245 (Tex. 1978) (”The attorney-client privilege belongs to the client” and must remain so, unless expressly waived by the client himself). Accordingly, Faire had neither the right to retain Jones’ privileged documents nor to disclose those documents to any third parties. Furthermore, the privileged documents and information go to the heart of Jones’ claims and defenses in the underlying family law proceedings. By wrongfully obtaining, reviewing, and digesting Jones’ privileged information, Ms. Brown now has direct knowledge of and insight into Jones’ legal strategy, analysis, and communications regarding such with his counsel. Unless she is disqualified from further representation of Faire in this lawsuit, Ms. Brown will gain additional insights through any future inevitable disclosures of Jones’ attorney-client information 11 and communications in Faire’s possession. Additionally, Defendants will be prejudiced by Ms. Brown’s continued representation of Faire, as she has also indicated she intends to use Jones’ privileged emails in support of Faire’s claims in this very lawsuit. Disqualification is justified where a party will suffer significant prejudice as a result of opposing counsel’s possession and knowledge of that party’s privileged information. See In re Marketing Investors, 80 S.W.3d at 51 (counsel’s stated intent to use privileged documents prejudicial and warranted disqualification); see also Maldonado, 225 F.R.D. at 140 (disclosure of privileged letter resulted in substantial prejudice to defendants); Richards, 168 F. Supp. 2d at 1207-08 (privileged emails deemed significant, and disclosure warranted disqualification, whether related directly to suit or not). As such, there is simply no question that Ms. Brown’s continued representation of Faire in this matter will significantly and irreparably prejudice Defendants, thereby warranting her disqualification. 5. Extent to which movant may be at fault for the unauthorized disclosure of privileged documents/information. Ms. Brown’s possession and review of Jones’ privileged documents has occurred through absolutely no fault or act of Jones. Rather, Ms. Brown obtained Jones’ privileged documents exclusively through Faire’s wrongful acts in breaching her fiduciary duties to Jones. As his personal assistant, agent, and member of his litigation team, Jones was legally entitled to assume Faire would adhere to her legal duties and obligations in protecting his privileged information. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 202 (Tex. 2002) (agents owe fiduciary duty to principal and employee is obligated to act in employer’s best interest); Welex Jet Servs. v. Owen, 325 S.W.2d 856, 858 (Tex. Civ. App.—Fort Worth 1959, writ ref’d n.r.e.) (“[c]onfidential information secured by reason of fiduciary relationships may not be used or disclosed to [employer’s] detriment irrespective of an agreement not to do so”). Accordingly, this factor also 12 weighs in favor of Ms. Brown’s disqualification. See In re Meador, 968 S.W.2d at 352 (plaintiff’s unknown removal of privileged documents weighed in favor of disqualification); In re Marketing Investors, 80 S.W.3d at 51-52 (privileged documents improperly taken/retained by terminated president of company); see also Maldonado, 225 F.R.D. at 140-41 (no evidence that defendants were at fault in plaintiff’s receipt of privileged letter); Richards, 168 F. Supp. 2d at 1208 (no fault in disclosure of privileged emails wrongfully taken from defendant). 6. The extent to which Faire will suffer prejudice if her attorney is disqualified. The last of the six Meador factors is whether, and to what extent, Faire would be prejudiced by Ms. Brown’s disqualification. In the unlikely event Faire would suffer any such prejudice, multiple factors would work to mitigate such harm. For example, this case is at a relatively early stage of the proceedings, with no depositions having yet been taken, and dispositive briefing and trial deadlines many months away. Thus, should Faire obtain new representation, that counsel would have ample time to learn the case and provide competent representation. Moreover, the overwhelming majority of Faire’s claims have been dismissed, and her only remaining claim arises under Chapter 21 of the Texas Labor Code. Because Ms. Brown does not specialize in this type of litigation, Faire would suffer no unique prejudice by virtue of this disqualification. Accordingly, the minimal risk of prejudice to Faire also weighs in favor of disqualification. See In re Marketing Investors, 80 S.W.3d at 52 (trial court erred in not disqualifying counsel, as disqualification arose early in litigation, case was not well-developed, and no indication that former employee could not obtain alternate counsel). In determining when to exercise its discretion to disqualify counsel in those cases involving the loss of the protection of privilege, “the Court should resolve any doubts in favor of disqualification.” Richards, 168 F. Supp. 2d at 1209. In this case, there are no doubts 13 whatsoever on this issue, as the six Meador factors weigh in favor of Ms. Brown’s C. Ms. Brown should be disqualified for encouraging and assisting Faire in the breach of fiduciary duties. Finally, Ms. Brown should be disqualified from further representation of Faire due to her apparent encouragement, facilitation, and assistance of Faire’s breach of fiduciary duties owed to Jones. As Jones’ personal assistant and agent, Faire owes fiduciary duties to Jones. These duties specifically include the duty of loyalty and utmost good faith, the duty to act in the employer’s best interest, and a duty not to disclose the employer’s or principal’s confidential information. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 202 (Tex. 2002) (agents owe fiduciary duty to principal and employee is obligated to act in employer’s best interest);]. A third party that knowingly induces a fiduciary to breach a duty, or participates in the breach, can be held liable as a joint tortfeasor. Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509, 513 (Tex. 1942); James J. Flanagan Shipping Corp. v. Del Monte Fresh Produce N.A., Inc., 403 S.W.3d 360, 368 (Tex. App.—Houston [1st Dist.] 2013, no pet.). This rule is illustrated by Joe N. Pratt Ins. v. Doane, No. V-07-07, 2008 WL 819011 (S.D. Tex. Mar. 20, 2008). There, the plaintiff alleged a former employee copied plaintiff’s confidential documents as she left the plaintiff’s employment. Subsequently, the employee used the information to compete with her former employer. Id. at *1. Furthermore, the plaintiff also alleged its former employee shared the information with Trinity Insurance, a competitor, who used the information to lure away the plaintiff’s clients. Id. In denying the defendant’s motion to dismiss, the court left no question that “a third party who knowingly participates in the breach of a fiduciary duty may be liable as a joint tortfeasor with the fiduciary.” Id. at *14. see also Cotton v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 701-02 (Tex. App.—Fort Worth 2006, pet. denied) ((same). 14 As is demonstrated by Brown’s correspondence and document production in this matter, Brown has encouraged and assisted Faire in the breach of her fiduciary duties owed to Jones. See Ex. D, Jones Aff. ¶¶ 7-8; Ex. B, Brown June 22, 2015 Corr. Under these circumstances, Brown should be disqualified from continuing to represent to Faire in these proceedings. Brown’s improper actions in this case of accepting, reviewing, and using Jones’ privileged information warrant her disqualification from continuing to represent Faire in this case. Defendants pray the Court disqualify Brown from representing Faire in this case and grant Defendants all other relief to which they may be entitled. 15 Respectfully submitted, __________________________________ Christine E. Reinhard State Bar No. 24013389 Shannon B. Schmoyer State Bar No. 17780250 Justin Barbour State Bar No. 24055142 SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 Phone: (210) 447-8033 Fax: (210) 447-8036 creinhard@sr-llp.com sschmoyer@sr-llp.com jbarbour@sr-llp.com ATTORNEYS FOR DEFENDANTS FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD MANAGEMENT PARTNERS, LLC, ALL JONES, LLC, ALLEN J. JONES, PETER DONBAVAND, AND JASON KEMP The foregoing Defendants’ Motion to Disqualify Plaintiff’s Counsel is hereby set for hearing at 9:00 a.m. on September 14, 2015 in the Presiding District Court, Bexar County Courthouse, San Antonio, Texas.ROOM 1.09 8TH Signed on this _________ day of September, 2015. _______________________________________ JUDGE PRESIDING 16 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served via electronic service and facsimile, to: Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, Texas 78205 (210) 226-1884 (facsimile) argyle2@sbcglobal.net on this 8th day of September, 2015. _________________________________ Justin Barbour 17 EXHIBIT A EXHIBIT B EXHIBIT C FILED 6/19/2015 3:41:57 PM Donna Kay McKinney Bexar County District Clerk Accepted By: Lisa Morales CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF’S FIFTH AMENDED ORIGINAL PETITION Plaintiff, Cearth Faire, files this Fifth Amended Original Petition against Defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners, LLC, ALL JONES, LLC, Allen J Jones, Peter Donbavand and Jason Kemp, and 1. A Level Three Amended Agreed Docket Control Order is in place, this matter is set for Jury Trial March 7, 2016. 2. Plaintiff seeks monetary relief over $200,000.00 but not more than 3. Plaintiff, Cearth Faire, is an individual, whose address is 8647 Timber Place, San Antonio, TX 78250. 4. Defendant Jason Kemp is an individual, co-founder and Chief Financial Officer (CFO) of Defendant corporations, whose business address is Food Management Partners, LLC 120 Chula Vista, San Antonio, TX 78232. He has been served, is represented by counsel, and is properly before this court. MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is represented by 6. Defendant ALL JONES, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is represented by counsel, and is properly before this court 7. Defendant Allen J Jones, is an individual, co-founder and President/CEO of Defendant corporations, who has been served and is represented by counsel, and is properly before this court. 8. Defendant Peter Donbavand, is an individual and executive of Defendant corporations, has been served and is represented by counsel, and is properly before this court. 9. The Court has subject-matter jurisdiction over the lawsuit because the amount in controversy exceeds this Court’s minimum jurisdictional requirements. 10. Venue is proper in Bexar County as all or a substantial part of the events or 11. Plaintiff Faire was an employee of Defendant Kemp, Chief Financial Officer of Defendant Corporations and of Defendant Jones, CEO of Defendant Corporations. In addition to the local corporate duties, she was required to work in the Dominican Republic for approximately five months on a 24/7 basis, for the Defendant Jones, CEO with the knowledge of Defendant Kemp. Plaintiff Faire, during the term of her employment was not properly compensated, giving rise to several violations of Wage and Hour laws that Defendant Kemp, CFO knew or should have known about. Corporations, was made aware of the facts supporting Plaintiff’s claims by means of intra-corporate email traffic and including instructions to him and all other Defendants by Jones as to how to properly proceed on Defendant Jones’ gifting to the Plaintiff the real estate, and specifically the “Kemp” house. 3 13. Defendant Jones, CEO in his official capacity as well as in his individual capacity communicated his intent to make the gift of real estate to Plaintiff by negotiating a price for the “Kemp” house at 8647 Timber Pl. San Antonio, Texas, 78250. Defendant Kemp’s, knowledge of the oral gift of real estate to Plaintiff is supported by the fact that a buyer’s lease agreement was executed. Further, Defendant Donbavand, in his individual capacity and outside the scope of corporate business issued orders for the inspection of, and preparation of the necessary documents to carry out gifting of the real estate to the Plaintiff. Defendant Kemp, individually and in his official capacity of chief financial officer of the Defendant Corporations knew or should have known the facts supporting Plaintiff’s claims. Again, email traffic between all Defendants supports the facts of Plaintiff’s claims of oral gift of real estate, fraud, and quid pro quo sexual harassment and retaliation. 14. Defendant Jones, as CEO and in his individual capacity, negotiated with Defendant Jason Kemp, CFO, whose wife owned the residence at 8647 Timber Pl, San Antonio, TX 78250. 15. Defendant Kemp, CFO and co-owner, also a business partner of Defendant Jones, took orders and assumed duties outside the course and scope of the corporate entities upon demand from Defendant Jones, the President & CEO of Defendants FMP and ALL JONES, LLC. Defendant Jones treats the corporate entities as his “piggy bank” and Defendants Donbavand and Kemp, as his personal aides. 4 16. Defendant Kemp, CFO and co-owner, routinely succumbs to the personal demands of Defendant Jones outside the best interests of the corporate business, as in this case, to sell him the residence at 8647 Timber Pl, San Antonio, TX 78250, so he could gift the property to the Plaintiff in consideration for her assisting in his personal legal matters, and in lieu of proper wage compensation. 17. Defendant Kemp had personal reasons to complete the necessary documents. Defendant Donbavand, on behalf of Defendant Jones requested of Defendant Kemp, that Plaintiff move into the house prior to “closing”, orally gifting her the house, a present gift. Plaintiff, in reliance of Jones’ oral promise moved into the house with the consent of Defendant Kemp and the consent and request of Defendant Jones and made valuable and permanent improvements in reliance of Defendant Jones promise to her. 18. Plaintiff incurred moving expenses as well as expenses in making permanent improvements to the residence to make it habitable. Defendants’ email traffic support this. The residence is still in need of significant repairs. An inspection was ordered by the defendants as further proof of Defendant Jones’ purchase with intention to make a gift. 19. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent promotion based on meritorious work.. Defendant Jones demanded the other defendants Defendant Peter Donbavand and Defendant Jason Kemp evict Plaintiff 5 from the house he had given her in retaliation for her refusal of sexual advances. The wrongful eviction proceedings were abated, as the justice of the peace court lacks jurisdiction to rule on the petition for eviction in that title to the property is at issue. The wrongful eviction proceedings are outside the course and scope of corporate business. 20. Defendants, all acting in concert, continued to retaliate against, and harass the Plaintiff by wrongfully repossessing her car. Plaintiff had clear title to her 2005 Mini Cooper. Jones promised to repair her car. An ambiguous payment plan was put in place. However, in retaliation for claiming her rightful title to her house, Jones has deprived Plaintiff of a necessity, of transportation to seek employment. During the repossession process, Jones terrorized her by sending strangers to ring her doorbell, all while he owns a million dollars worth of automobiles, and spends a great deal of his time in the Dominican Republic. 21. Plaintiff had an exemplary employment record before being hired by Defendants FMP and ALL JONES, LLC. Immediately before being fired by Defendants, Faire had been given a raise in pay and been entrusted with additional duties. Plaintiff was fired solely because Plaintiff refused to continue to perform employment duties that were not in furtherance of the corporate business and because of Defendant Jones’ demands for demeaning sexual acts and explicit threats to fire her if she didn’t submit. 22. Plaintiff seeks actual damages as a result of the sexual harassment and 6 discrimination, which include, but are not limited to back pay from the date of quid pro quo retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and benefits including the repossession of her automobile lost as a result of her unlawful termination. 23. Plaintiff also seeks damages for past and future mental anguish as a result of Defendant Jones explicitly forcing her to choose between the sexual abuse he was demanding of her and her livelihood. 24. Defendant Jones acted with malice toward Plaintiff in that Jones exhibited conscious indifference to consequences Plaintiff might suffer separate and apart from the damages suffered as a result of the retaliation. Defendant Jones, as President and CEO, has inflicted additional injuries by circulating malicious rumors about the Plaintiff at corporate headquarters. Plaintiff therefore seeks exemplary damages. COUNT 1- ORAL GIFT OF REAL ESTATE 25. On or about March 27, 2013, when Plaintiff Faire, as an employee of Defendant Corporations, was temporarily living in the Dominican Republic at the behest of Defendant Jones, CEO, working on a 24/7 hour basis, Defendant Jones promised to buy a home and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas. 26. On or about July 30 2014, Plaintiff moved into the house at 8647 Timber Pl, San Antonio, Texas 78250, that Defendant Jones gifted her in his individual 7 capacity but with the knowledge and consent of all Defendants, including Defendant Kemp. Plaintiff is still living at her home, taking possession under the present gift. 27. Plaintiff has made permanent and valuable improvement to the home based on the reliance of the gift made to her by Defendant Jones as an individual. 28. It was reasonable for Plaintiff to rely on Defendant Jones’ promise of an oral gift of real estate based on Defendant Jones’ financial resources, including but not limited to ownership in franchises of Zio’s Italian Kitchen, Buffalo Wild Wings, Don Pablo’s Big Tex Bold Mex, Furr’s, Little Ceasar’s and Smashburger. 29. Further, in other judicial proceedings, Defendant Jones made judicial admissions of owning 150 businesses and having financial resources to “buy” a young lady from a brothel for $10,000.00 in the Dominican Republic where he also has extensive real estate holdings. In other words, judicial admissions of human trafficking on the part of the CEO of Defendant corporations, with the knowledge of other corporate officers, including Defendant Kemp, CFO. This is relevant to both the financial capacity to gift a house to an employee, and to Defendants’ attitude toward females. 30. Defendant Jones informed the Plaintiff that he was buying the house from Defendant Kemp, and that at closing, he would give her full title and interest to the home. Defendants Jones further promised the closing would take place immediately 8 upon the reaching of an agreement on the final price and other terms. A final purchase price was reached between Defendant Jones and Defendant Jason Kemp. All terms for the sale of the house were reached by buyer and seller, and having absolutely nothing to do with the business of the corporate entities, parties herein 31. Defendant Kemp, and Defendant Donbavand knew the house located at 8647 Timber Pl, San Antonio, TX 78250 purchased from Kemp, was a gift of real estate to the Plaintiff. Defendant Donbavand ordered an inspection of the home in furtherance of a prompt closing, all outside of the course and scope of corporate business. Defendant Kemp’s knowledge of the gift is evidenced by email traffic exchanged between Defendant Kemp and Defendant Donbavand. 32. Defendant Jones made this gift to Plaintiff as an individual and not as President & CEO of the other corporate defendants. Defendant Jones purchased the home from Defendant Kemp as an individual and not as a transaction within the necessary documentation and transactions outside the course and scope of corporate business. Defendant Donbavand routinely acts as Defendant Jones’ personal aide to carry out his orders regarding personal matters. Defendant Donbavand is experienced in real estate transactions and worked to completing the necessary documents. In the meantime, in a fit of retaliation, Defendant Jones 9 changed his mind about the gift. Plaintiff has been living in the house since on or before July 30, 2014. 34. Plaintiff asserts this oral gift of real estate must be enforced in equity as the facts herein establish a gift of real estate, notwithstanding the requirements of the statute of frauds. COUNT 2 – Conspiracy Claim 35. Defendant Jones, CEO of Defendant Corporations, took overt steps of retaliation toward employee, Faire, giving rise to an agreement between Defendant Donbavand and Defendant Kemp and himself, to enter into a scheme against Plaintiff, to deny that he had made an oral gift of real estate to Plaintiff, even though Defendant Kemp had given her a key to the home, and a short term buyer’s lease to evidence her proper move into the residence. 36. Plaintiff asserts that email correspondence between conspirators that has been properly requested by her, but denied her, will support all Defendants were involved in Defendant Jones’ retaliation against Plaintiff. All Defendants have participated in the common goal of depriving Plaintiff of her home, after she had taken possession of the home and made valuable improvement, by numerous petitions for eviction proceedings. 10 37. Defendants are in possession of email communications between conspirators that will support a meeting of the minds on the subject of retaliation, and the tort of fraud to deprive Plaintiff Faire of the real estate gifted to her. Plaintiff Faire has sustained economic damages as a result of the conspiracy by Defendants Jones, Kemp and Donbavand to defraud her of her rightful title to the real estate. 38. It is well established that fraud can be the basis of a conspiracy. The Defendants Jones, Kemp and Donbavand made material misrepresentations to the Plaintiff in connection with the gifting of the real estate to her. Each Defendant took overt steps and actions to deceive her by going through the process of purchase and delivery of the real estate. 39. Plaintiff Faire relied on each step taken by each of the Defendants in furtherance of delivery possession of the house to her. Defendants intended for the Plaintiff to rely on their representations that they were working on carrying out the oral gift of real estate. 40. Defendants’ false representations, including those of Defendant Kemp have directly and proximately caused economic and other injuries to the Plaintiff. Plaintiff seeks damages within the jurisdictional limits of this court. 41. Plaintiff seeks exemplary damages from each Defendant including Defendant Kemp, because Plaintiff will show each acted with malice toward the Plaintiff which entitles Plaintiff to exemplary damages under Texas civil Practice and Remedies code section 41.003(a). 11 COUNT 3 QUID PRO QUO SEXUAL HARASSMENT 42. Plaintiff was an employee of Defendants FMP, ALL JONES and their subsidiaries, and her duties were to serve as a personal assistant to the Defendant Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self- supporting divorced woman with no financial resources other than her wages. Plaintiff also had an exemplary work history prior to working for Defendants. 43. Plaintiff raises this claim under Tex. Lab. Code Ann. §§ 21.001, .051 (West 1996), which prohibits discrimination on the basis of sex. 44. On or about January 21, 2013 Defendant Jones made sexual advances toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical conduct of a sexual nature. Defendant Jones’s demands escalated and the mental abuse was so extreme that it prevented Plaintiff from defending herself. 45. Defendant Jones made it cleared to the Plaintiff that continued employment as well as other job benefits were conditioned on her acceptance of the 46. At the time of the harassment, Defendant Jones was the President and CEO of the Food Management Partners, a Texas LLC. At all times, Defendant Jones held himself out to Plaintiff and to the public, as a very powerful business man, and owner of 150 businesses. Defendant Jones instilled fear of his financial power on Plaintiff. There was no recourse available to the Plaintiff to complain. 12 47. Plaintiff was harmed by the physical sexual conduct perpetrated against her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by Defendant Jones sexual harassment. When Plaintiff was mentally well enough to, she refused to further submit to Defendant Jones’ inappropriate requests she was fired on or about August 31, 2014. 48. Plaintiff seeks compensatory damages for lost wages, lost benefits and future employment opportunities based on her traumatic experience at the hand of Defendant Jones. 49. Plaintiff seeks exemplary damages based on Defendant Jones’s history of sexual harassment of others and including judicial admissions that he purchased a female as if she was merely chattel. 50. Further, Plaintiff seeks exemplary damages against Defendant Donbavand and Defendant Kemp, as her injury resulted from Defendants’ malice, which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code section 41.003(a). 51. Plaintiff has demanded a jury trial and tendered the appropriate fee with her original petition. The jury trail has been set for November 2, 2015. 13 CONDITIONS PRECEDENT 52. All conditions precedent to plaintiff’s claim for relief have been performed or 53. Plaintiff objects to the referral of this case to an associate judge for hearing a trial on the merits or presiding at a jury trial. For these reasons, Plaintiff asks that Defendants be cited to appear and answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for b. Economic and non-economic damages including, but not limited to back pay, front pay, severance pay, specific performance regarding the gift purchase of a home (or its monetary equivalent). 14 Respectfully submitted, LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net By: /s/ Olga Brown_________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff I do hereby certify that on the 19th day of June 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Fifth Amended Original Petition was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN 15 EXHIBIT D EXHIBIT E CAUSE NO. 2014-CI-16674 CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF’S FOURTH AMENDED ORIGINAL PETITION Plaintiff, Cearth Faire, files this Fourth Amended Original Petition against defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners, LLC, ALL JONES, LLC, Allen J Jones, Peter Donbavand and Jason Kemp, and 1. A Level Three Agreed Docket Control Order is in place, this matter is set for Jury Trial November 2, 2015. 2. Plaintiff seeks monetary relief over $200,000.00 but not more than $3,000,000.00. PARTIES 3. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place, MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is represented by 5. Defendant ALL JONES, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is 6. Defendant Allen J Jones, is an individual who has been served and is 7. Defendant Peter Donbavand, is an individual has been served and is 8. Defendant Jason Kemp is an individual whose business address is Food Management Partners, LLC 120 Chula Vista, San Antonio, TX 78232. He may be served at this address, or wherever he may be found. JURISDICTION 9. The Court has subject-matter jurisdiction over the lawsuit because the amount in controversy exceeds this Court’s minimum jurisdictional requirements. 2 VENUE 10. Venue is proper in Bexar County as all or a substantial part of the events or 11. Plaintiff Faire was an employee of Defendants, as well as a personal assistant to Defendant Jones. Plaintiff, in addition to working for Defendants’ businesses, also took care of Defendant Jones’ personal matters, including living in the Dominican Republic for approximately five months on a 24/7 basis assisting in his defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been properly compensated. 12. Defendant Jones, individually, in recognition for her loyal and tireless services personal to him, promised Plaintiff a home. Defendant Jones developed a scheme for his purchase of the house that included telling other corporate officers that Plaintiff’s pay increase was for the house payments. Defendant Jones intended to hide his gift from the other Defendants named in this lawsuit, until he retaliated against Plaintiff by denying he had made a gift of real estate to Plaintiff. 13. Defendant Jones, in his individual capacity, negotiated with Defendant Jason Kemp, whose wife owned the residence at 8647 Timber Pl, San Antonio, TX 78250. Defendant Jones then instructed, Defendant Donbavand, in his individual capacity and outside the scope of corporate business to prepare the necessary documents so he, Jones could purchase the residence for the Plaintiff. 14. Defendant Donbavand, while a business partner of Defendant Jones and also an agent of Defendant FMP, routinely served Defendant Jones as a personal aide and routinely took orders from Jones outside the course and scope of his duties with the corporate entities to meet the personal demands of Defendant Jones, notwithstanding if the corporate best interests were served. 15. Defendant Kemp, also a business partner of Defendant Jones, took orders and assumed duties outside the course and scope of the corporate entities upon demand from Defendant Jones the President & CEO of Defendant FMP. Defendant Jones treats the corporate entities as his “piggy bank” and Defendants Donbavand and Kemp, as his personal aides. 16. Defendant Kemp routinely succumbs to the personal demands of Defendant Jones outside the best interests of the corporate business as in this case to sell him the residence at 8647 Timber Pl, San Antonio, TX 78250, so he could gift the property to the Plaintiff in consideration for her assisting in his personal legal matters. documents, again outside the course and scope of corporate business, Defendant Jones requested that Plaintiff move into the house, orally gifting her the house, a present gift. Plaintiff in reliance of his oral promised moved into the house with the consent of Defendant Kemp and the request of Defendant Jones and made valuable and permanent improvements in reliance of Defendant Jones promise to her. 4 18. Plaintiff incurred moving expenses as well as expenses in making permanent improvements to the residence to make it habitable. The residence is still in need of significant repairs. An inspection was ordered by the defendants as further proof of Defendant Jones’ purchase with intention to make a gift. 19. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent promotion based on meritorious work.. Defendant Jones demanded the other defendants Defendant Peter Donbavand and Defendant Jason Kemp evict Plaintiff from the house he had given her. The wrongful eviction proceedings were abated, as the justice of the peace court lacks jurisdiction to rule on the petition for eviction in that title to the property is at issue. The wrongful eviction proceedings are outside the 20. Defendants continued to harass the Plaintiff by wrongfully repossessing her car. Plaintiff had clear title to her 2005 Mini Cooper. Jones promised to repair her car. An ambiguous payment plan was put in place. However, in retaliation for claiming her rightful title to her house, Jones has deprived Plaintiff of a necessity, of transportation to seek employment. During the repossession process, Jones terrorized her by sending strangers to ring her doorbell, all while he owns a million dollars worth of automobiles, and spends a great deal of his time in the Dominican Republic. 21. Plaintiff had an exemplary employment record before being hired by Defendants FMP and ALL JONES, LLC. Immediately before being fired by Defendants, Faire had been given a raise in pay and been entrusted with additional duties. Plaintiff was fired solely because Plaintiff refused to continue to perform employment duties that were not in furtherance of the corporate business and because of Defendant Jones’ demands for demeaning sexual acts and explicit threats 22. Plaintiff seeks actual damages as a result of the sexual harassment and discrimination, which include, but are not limited to back pay from the date of quid pro quo retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and benefits including the repossession of her automobile lost as a result of her unlawful 23. Plaintiff also seeks damages for past and future mental anguish as a result of Defendant Jones explicitly forcing her to choose between the sexual abuse 24. Defendant Jones acted with malice toward Plaintiff in that Jones exhibited conscious indifference to consequences Plaintiff might suffer separate and apart from the damages suffered as a result of the retaliation. Defendant Jones, as President and CEO, has inflicted additional injuries by circulating malicious rumors about the Plaintiff at corporate headquarters. Plaintiff therefore seeks exemplary 6 COUNT 1- ORAL GIFT OF REAL ESTATE 25. On or about March 27, 2013, when Plaintiff Faire was temporarily living in the Dominican Republic at the request of Defendant Jones, taking care of Jones’ child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas. 26. On or about July 20 2014, Plaintiff moved into the house at 8647 Timber Pl, San Antonio, Texas 78250, that Defendant Jones gifted her in his individual capacity but with the knowledge and consent of all Defendants. Plaintiff is still living at her home, taking possession under the present gift. 27. Plaintiff has made permanent and valuable improvement to the home based on the reliance of the gift made to her by Defendant Jones as an individual. 28. It was reasonable for Plaintiff to rely on Defendant Jones’ promise of an oral gift of real estate based on Defendant Jones’ financial resources, including but not limited to ownership in franchises of Zio’s Italian Kitchen, Buffalo Wild Wings, Don Pablo’s Big Tex Bold Mex, Furr’s, Little Ceasar’s and Smashburger. 29. Further, Defendant Jones boasts of having presently one million dollars worth of cars and extensive real estate holdings in the state. In other judicial proceedings, Defendant Jones bragged about owning 150 businesses and having financial resources to “buy” a young lady from a brothel for $10,000.00 in the Dominican Republic where he also has extensive real estate holdings. 30. Defendant Jones informed the Plaintiff that he was buying the house from Defendant Kemp, and that at closing, he would give her full title and interest to the home. Defendants Jones further promised the closing would take place immediately upon the reaching of an agreement on the final price and other terms. A final purchase price was reached between Defendant Jones and Defendant Jason Kemp. All terms for the sale of the house were reached by buyer and seller, and having absolutely nothing to do with the business of the corporate entities, parties herein 31. Defendant Jones negotiated all the terms of the real estate purchase to make a present gift of real estate to Plaintiff. Defendant Jones, Defendant Kemp, and Defendant Donbavand knew the house located at 8647 Timber Pl, San Antonio, TX 78250 purchased from Kemp’s wife, Tara Kemp, was a gift of real estate to the Plaintiff. Defendant Donbavand ordered an inspection of the home in furtherance of a prompt closing, all outside of the course and scope of corporate business.. 32. Defendant Jones made this gift to Plaintiff as an individual and not as President & CEO of the other corporate defendants. Defendant Jones purchased the home from Defendant Kemp as an individual and not as a transaction within the necessary documentation and transactions outside the course and scope of 8 corporate business. Defendant Donbavand routinely acts as Defendant Jones’ personal aide to carry out his orders regarding personal matters. Defendant Donbavand is experienced in real estate transactions and worked to completing the necessary documents. In the meantime, in a fit of retaliation, Defendant Jones changed his mind about the gift. Plaintiff has been living in the house for eight months. 34. Plaintiff asserts this oral gift of real estate must be enforced in equity as the facts herein establish a gift of real estate, notwithstanding the requirements of COUNT 2 – Conspiracy 35. Defendants Peter Donbavand and Jason Kemp, as individuals acting outside their corporate duties, assisted Defendant Jones in conduct which they knew amounted to a commission of a tort or wrongful acts against the Plaintiff, and specifically acting to rescind the oral gift of real estate to Plaintiff 36. Defendant Donbavand and Defendant Kemp acted with intent to assist Defendant Jones in his wrongful acts toward Plaintiff of attempting to rescind the present gift of real estate. 37. Defendant Donbavand and Defendant Kemp’s assistance to Defendant Jones and their own related conduct was a substantial factor in the breach of the present gift Defendant Jones made to Plaintiff. COUNT 3 QUID PRO QUO SEXUAL HARASSMENT 38. Plaintiff was an employee of Defendants FMP, ALL JONES and their subsidiaries, and her duties were to serve as a personal assistant to the Defendant Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self- supporting divorced woman with no financial resources other than her wages. Plaintiff also had an exemplary work history prior to working for Defendants. 39. Plaintiff raises this claim under Tex. Lab. Code Ann. §§ 21.001, .051 (West 1996), which prohibits discrimination on the basis of sex. 40. On or about January 21, 2013 Defendant Jones made sexual advances toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical conduct of a sexual nature. Defendant Jones’s demands escalated and the mental abuse was so extreme that it prevented Plaintiff from defending herself. 41. Defendant Jones made it cleared to the Plaintiff that continued employment as well as other job benefits were conditioned on her acceptance of the 42. At the time of the harassment, Defendant Jones was the President and CEO of the Food Management Partners, a Texas LLC. At all times, Defendant Jones held himself out to Plaintiff and to the public, as a very powerful business man, and owner of 150 businesses. Defendant Jones instilled fear of his financial power on Plaintiff. There was no recourse available to the Plaintiff to complain. 10 43. Plaintiff was harmed by the physical sexual conduct perpetrated against her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by Defendant Jones sexual harassment. When Plaintiff was mentally well enough to, she refused to further submit to Defendant Jones’ inappropriate requests she was 44. Plaintiff seeks compensatory damages for lost wages, lost benefits and future employment opportunities based on her traumatic experience at the hand of 45. Plaintiff seeks exemplary damages based on Defendant Jones’s history of sexual harassment of others and including the purchase of a female as if she was merely chattel. 46. Further, Plaintiff seeks exemplary damages against Defendant Donbavand and Defendant Kemp, as her injury resulted from Defendants’ malice, which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code 47. Plaintiff has demanded a jury trial and tendered the appropriate fee with her original petition. The jury trail has been set for November 2, 2015. CONDITIONS PRECEDENT 48. All conditions precedent to plaintiff’s claim for relief have been performed or 49. Plaintiff objects to the referral of this case to an associate judge for hearing a trial on the merits or presiding at a jury trial. For these reasons, Plaintiff asks that Defendants be cited to appear and answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for b. Economic and non-economic damages including, but not limited to back pay, front pay, severance pay, specific performance regarding the gift purchase of a home (or its monetary equivalent). c. Prejudgment and postjudgment interest. d. Court costs. e. Reasonable and necessary Attorney’s fees f. All other relief to which Plaintiff is entitled. 12 Respectfully submitted, LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net By: /s/ Olga Brown_________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff I do hereby certify that on the 10th day of March 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Fourth Amended Original Petition was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN EXHIBIT F EXHIBIT G Appendix 7 Appendix 8 FILED 6/30/2015 10:45:37 AM Donna Kay McKinney Bexar County District Clerk Accepted By: Alex Lewicke Appendix 9 FILED 6/19/2015 3:41:57 PM Donna Kay McKinney Bexar County District Clerk Accepted By: Lisa Morales CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS Plaintiff, Cearth Faire, files this Fifth Amended Original Petition against Defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners, LLC, ALL JONES, LLC, Allen J Jones, Peter Donbavand and Jason Kemp, and 1. A Level Three Amended Agreed Docket Control Order is in place, this matter 2. Plaintiff seeks monetary relief over $200,000.00 but not more than 3. Plaintiff, Cearth Faire, is an individual, whose address is 8647 Timber 4. Defendant Jason Kemp is an individual, co-founder and Chief Financial Officer (CFO) of Defendant corporations, whose business address is Food Management Partners, LLC 120 Chula Vista, San Antonio, TX 78232. He has been served, is represented by counsel, and is properly before this court. MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is represented by 6. Defendant ALL JONES, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is 7. Defendant Allen J Jones, is an individual, co-founder and President/CEO of Defendant corporations, who has been served and is represented by counsel, and 8. Defendant Peter Donbavand, is an individual and executive of Defendant corporations, has been served and is represented by counsel, and is properly before 9. The Court has subject-matter jurisdiction over the lawsuit because the amount in controversy exceeds this Court’s minimum jurisdictional requirements. 10. Venue is proper in Bexar County as all or a substantial part of the events or 11. Plaintiff Faire was an employee of Defendant Kemp, Chief Financial Officer of Defendant Corporations and of Defendant Jones, CEO of Defendant Corporations. In addition to the local corporate duties, she was required to work in the Dominican Republic for approximately five months on a 24/7 basis, for the Plaintiff Faire, during the term of her employment was not properly compensated, giving rise to several violations of Wage and Hour laws that Corporations, was made aware of the facts supporting Plaintiff’s claims by means of intra-corporate email traffic and including instructions to him and all other Defendants by Jones as to how to properly proceed on Defendant Jones’ gifting to the Plaintiff the 3 13. Defendant Jones, CEO in his official capacity as well as in his individual capacity communicated his intent to make the gift of real estate to Plaintiff by negotiating a price for the “Kemp” house at 8647 Timber Pl. San Antonio, Texas, 78250. Defendant Kemp’s, knowledge of the oral gift of real estate to Plaintiff is supported by the fact that a buyer’s lease agreement was executed. Further, Defendant Donbavand, in his individual capacity and outside the scope of corporate business issued orders for the inspection of, and preparation of the necessary documents to carry out gifting of the real estate to the Plaintiff. Defendant Kemp, individually and in his official capacity of chief financial officer of the Defendant Corporations knew or should have known the facts supporting Plaintiff’s claims. Again, email traffic between all Defendants supports the facts of Plaintiff’s claims of oral gift of real estate, fraud, and quid pro quo sexual harassment and 14. Defendant Jones, as CEO and in his individual capacity, negotiated with Defendant Jason Kemp, CFO, whose wife owned the residence at 8647 Timber Pl, 15. Defendant Kemp, CFO and co-owner, also a business partner of Defendant Jones, took orders and assumed duties outside the course and scope of the corporate entities upon demand from Defendant Jones, the President & CEO of Defendants FMP and ALL JONES, LLC. Defendant Jones treats the corporate entities as his “piggy bank” and Defendants Donbavand and Kemp, as his personal 4 16. Defendant Kemp, CFO and co-owner, routinely succumbs to the personal demands of Defendant Jones outside the best interests of the corporate business, as in this case, to sell him the residence at 8647 Timber Pl, San Antonio, TX 78250, so he could gift the property to the Plaintiff in consideration for her assisting in his personal legal matters, and in lieu of proper wage compensation. 17. Defendant Kemp had personal reasons to complete the necessary documents. Defendant Donbavand, on behalf of Defendant Jones requested of Defendant Kemp, that Plaintiff move into the house prior to “closing”, orally gifting her the house, a present gift. Plaintiff, in reliance of Jones’ oral promise moved into the house with the consent of Defendant Kemp and the consent and request of Defendant Jones and made valuable and permanent improvements in reliance of 18. Plaintiff incurred moving expenses as well as expenses in making permanent improvements to the residence to make it habitable. Defendants’ email traffic support this. The residence is still in need of significant repairs. An inspection was ordered by the defendants as further proof of Defendant Jones’ purchase with 19. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent promotion based on meritorious work.. Defendant Jones demanded the other defendants Defendant Peter Donbavand and Defendant Jason Kemp evict Plaintiff 5 from the house he had given her in retaliation for her refusal of sexual advances. The wrongful eviction proceedings were abated, as the justice of the peace court lacks jurisdiction to rule on the petition for eviction in that title to the property is at issue. The wrongful eviction proceedings are outside the course and scope of 20. Defendants, all acting in concert, continued to retaliate against, and harass the Plaintiff by wrongfully repossessing her car. Plaintiff had clear title to her 2005 Mini Cooper. Jones promised to repair her car. An ambiguous payment plan was put in place. However, in retaliation for claiming her rightful title to her house, Jones has deprived Plaintiff of a necessity, of transportation to seek employment. During the repossession process, Jones terrorized her by sending strangers to ring her doorbell, all while he owns a million dollars worth of automobiles, and spends a 21. Plaintiff had an exemplary employment record before being hired by Defendants FMP and ALL JONES, LLC. Immediately before being fired by Defendants, Faire had been given a raise in pay and been entrusted with additional duties. Plaintiff was fired solely because Plaintiff refused to continue to perform employment duties that were not in furtherance of the corporate business and because of Defendant Jones’ demands for demeaning sexual acts and explicit threats 22. Plaintiff seeks actual damages as a result of the sexual harassment and 6 discrimination, which include, but are not limited to back pay from the date of quid pro quo retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and benefits including the repossession of her automobile lost as a result of her unlawful 23. Plaintiff also seeks damages for past and future mental anguish as a result of Defendant Jones explicitly forcing her to choose between the sexual abuse 24. Defendant Jones acted with malice toward Plaintiff in that Jones exhibited conscious indifference to consequences Plaintiff might suffer separate and apart from the damages suffered as a result of the retaliation. Defendant Jones, as President and CEO, has inflicted additional injuries by circulating malicious rumors about the Plaintiff at corporate headquarters. Plaintiff therefore seeks exemplary 25. On or about March 27, 2013, when Plaintiff Faire, as an employee of Defendant Corporations, was temporarily living in the Dominican Republic at the behest of Defendant Jones, CEO, working on a 24/7 hour basis, Defendant Jones promised to buy a home and gift it to Plaintiff upon their return to San Antonio, Bexar 26. On or about July 30 2014, Plaintiff moved into the house at 8647 Timber Pl, San Antonio, Texas 78250, that Defendant Jones gifted her in his individual 7 capacity but with the knowledge and consent of all Defendants, including Defendant Kemp. Plaintiff is still living at her home, taking possession under the present gift. 27. Plaintiff has made permanent and valuable improvement to the home based on the reliance of the gift made to her by Defendant Jones as an individual. 28. It was reasonable for Plaintiff to rely on Defendant Jones’ promise of an oral gift of real estate based on Defendant Jones’ financial resources, including but not limited to ownership in franchises of Zio’s Italian Kitchen, Buffalo Wild Wings, Don Pablo’s Big Tex Bold Mex, Furr’s, Little Ceasar’s and Smashburger. 29. Further, in other judicial proceedings, Defendant Jones made judicial admissions of owning 150 businesses and having financial resources to “buy” a young lady from a brothel for $10,000.00 in the Dominican Republic where he also has extensive real estate holdings. In other words, judicial admissions of human trafficking on the part of the CEO of Defendant corporations, with the knowledge of other corporate officers, including Defendant Kemp, CFO. This is relevant to both the financial capacity to gift a house to an employee, and to Defendants’ attitude 30. Defendant Jones informed the Plaintiff that he was buying the house from Defendant Kemp, and that at closing, he would give her full title and interest to the home. Defendants Jones further promised the closing would take place immediately 8 upon the reaching of an agreement on the final price and other terms. A final purchase price was reached between Defendant Jones and Defendant Jason Kemp. All terms for the sale of the house were reached by buyer and seller, and having absolutely nothing to do with the business of the corporate entities, parties herein 31. Defendant Kemp, and Defendant Donbavand knew the house located at 8647 Timber Pl, San Antonio, TX 78250 purchased from Kemp, was a gift of real estate to the Plaintiff. Defendant Donbavand ordered an inspection of the home in furtherance of a prompt closing, all outside of the course and scope of corporate business. Defendant Kemp’s knowledge of the gift is evidenced by email traffic 32. Defendant Jones made this gift to Plaintiff as an individual and not as President & CEO of the other corporate defendants. Defendant Jones purchased the home from Defendant Kemp as an individual and not as a transaction within the necessary documentation and transactions outside the course and scope of corporate business. Defendant Donbavand routinely acts as Defendant Jones’ personal aide to carry out his orders regarding personal matters. Defendant Donbavand is experienced in real estate transactions and worked to completing the necessary documents. In the meantime, in a fit of retaliation, Defendant Jones 9 changed his mind about the gift. Plaintiff has been living in the house since on or 34. Plaintiff asserts this oral gift of real estate must be enforced in equity as the facts herein establish a gift of real estate, notwithstanding the requirements of 35. Defendant Jones, CEO of Defendant Corporations, took overt steps of retaliation toward employee, Faire, giving rise to an agreement between Defendant Donbavand and Defendant Kemp and himself, to enter into a scheme against Plaintiff, to deny that he had made an oral gift of real estate to Plaintiff, even though Defendant Kemp had given her a key to the home, and a short term buyer’s lease to evidence 36. Plaintiff asserts that email correspondence between conspirators that has been properly requested by her, but denied her, will support all Defendants were involved in Defendant Jones’ retaliation against Plaintiff. All Defendants have participated in the common goal of depriving Plaintiff of her home, after she had taken possession of the home and made valuable improvement, by numerous petitions for 10 37. Defendants are in possession of email communications between conspirators that will support a meeting of the minds on the subject of retaliation, and the tort of fraud to deprive Plaintiff Faire of the real estate gifted to her. Plaintiff Faire has sustained economic damages as a result of the conspiracy by Defendants Jones, Kemp and Donbavand to defraud her of her rightful title to the real estate. 38. It is well established that fraud can be the basis of a conspiracy. The Defendants Jones, Kemp and Donbavand made material misrepresentations to the Plaintiff in connection with the gifting of the real estate to her. Each Defendant took overt steps and actions to deceive her by going through the process of purchase and 39. Plaintiff Faire relied on each step taken by each of the Defendants in furtherance of delivery possession of the house to her. Defendants intended for the Plaintiff to rely on their representations that they were working on carrying out the oral 40. Defendants’ false representations, including those of Defendant Kemp have directly and proximately caused economic and other injuries to the Plaintiff. Plaintiff seeks damages within the jurisdictional limits of this court. 41. Plaintiff seeks exemplary damages from each Defendant including Defendant Kemp, because Plaintiff will show each acted with malice toward the Plaintiff which entitles Plaintiff to exemplary damages under Texas civil Practice and 42. Plaintiff was an employee of Defendants FMP, ALL JONES and their subsidiaries, and her duties were to serve as a personal assistant to the Defendant Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self- supporting divorced woman with no financial resources other than her wages. Plaintiff also had an exemplary work history prior to working for Defendants. 43. Plaintiff raises this claim under Tex. Lab. Code Ann. §§ 21.001, .051 (West 1996), which prohibits discrimination on the basis of sex. 44. On or about January 21, 2013 Defendant Jones made sexual advances toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical conduct of a sexual nature. Defendant Jones’s demands escalated and the mental abuse was so extreme that it prevented Plaintiff from defending herself. 45. Defendant Jones made it cleared to the Plaintiff that continued employment as well as other job benefits were conditioned on her acceptance of the 46. At the time of the harassment, Defendant Jones was the President and CEO of the Food Management Partners, a Texas LLC. At all times, Defendant Jones held himself out to Plaintiff and to the public, as a very powerful business man, and owner of 150 businesses. Defendant Jones instilled fear of his financial power on Plaintiff. There was no recourse available to the Plaintiff to complain. 12 47. Plaintiff was harmed by the physical sexual conduct perpetrated against her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by Defendant Jones sexual harassment. When Plaintiff was mentally well enough to, she refused to further submit to Defendant Jones’ inappropriate requests she was 48. Plaintiff seeks compensatory damages for lost wages, lost benefits and future employment opportunities based on her traumatic experience at the hand of 49. Plaintiff seeks exemplary damages based on Defendant Jones’s history of sexual harassment of others and including judicial admissions that he purchased a 50. Further, Plaintiff seeks exemplary damages against Defendant Donbavand and Defendant Kemp, as her injury resulted from Defendants’ malice, which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code 51. Plaintiff has demanded a jury trial and tendered the appropriate fee with her original petition. The jury trail has been set for November 2, 2015. 52. All conditions precedent to plaintiff’s claim for relief have been performed or 53. Plaintiff objects to the referral of this case to an associate judge for hearing a trial on the merits or presiding at a jury trial. For these reasons, Plaintiff asks that Defendants be cited to appear and answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for b. Economic and non-economic damages including, but not limited to back pay, front pay, severance pay, specific performance regarding the gift purchase of a home (or its monetary equivalent). LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net By: /s/ Olga Brown_________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff I do hereby certify that on the 19th day of June 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Fifth Amended Original Petition was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN 15 Appendix 10 CAUSE NO. 2014-CI-16674 CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF’S RESPONSE TO DEFENDANT KEMP’S RULE 91a MOTION TO DISMISS and REQUEST FOR ATTORNEY FEES NOW COMES PLAINTIFF CEARTH FAIRE, who respectfully requests this court to deny Defendant Jason Kemp’s Motion to Dismiss pursuant to Texas Rule of Civil Procedure 91a, and in support of such request Plaintiff would show the court she has properly plead her claims against Defendant Kemp, and would show as Defendant Jason Kemp, is Co-Founder, and Chief Financial Officer, and one of the Owners of the Defendant Corporations. Kemp holds himself out to the public as being extremely experienced in finance, accounting and corporate IT accounting. As such, Defendant Kemp was well aware of Defendant Jones’ business and personal activities, which included details of Plaintiff’s compensation and Defendant Jones’ disparaging treatment of females, including, but not limited to a judicial admission in a Bexar County District Court by Jones of having purchased a female in the Dominican Republic for his own needs. Defendant Kemp is strictly liable for Quid Pro Quo Harassment because he is well aware Defendant Jones Defendant Kemp, as Chief Financial Officer, is aware of Defendant Jones’ demands of Plaintiff to work for approximately five months to assist him in his divorce defense, by caring for his infant child on a 24 hour basis, in addition to her other job duties. The demands are in violation of well established wage and hour laws. Defendant Kemp, as Chief Financial Officer condones Defendant Jones’ Defendant Kemp, as Chief Financial Officer, is well aware that wages owed to Plaintiff under the Fair Labor Standards Act, Wage and Hour Division, exceed the value of the house that Defendant Jones gifted Plaintiff. Plaintiff contends the wages owed to her are approximately $153,162.98. Defendant Kemp, as Chief Financial Officer, is also well aware that improper deductions were made from Plaintiff’s wages, in violation of the Texas Payday Law. See Exhibit A incorporated herein in its entirety. 2 Notwithstanding that, a trial judge has dismissed Plaintiff’s claim of oral gift of real estate against Defendant Jones and Defendant Peter Donbavand, Defendant Kemp has liability independent of the other Defendants for fraud. It is well-established that fraud can be the basis of a conspiracy claim. Defendant Kemp perpetrated fraud against Plaintiff by denying her fair and just compensation and the pretext she was getting Kemp House. Plaintiff Faire has timely filed an amended petition addressing all the complaints contained in the Defendants’ Amended Rule 91a Motion. Plaintiff has again succinctly addressed all elements of each and every cause of action and supports allegations with facts that “a reasonable person could believe the facts plead” . Tex Plaintiff would further show that “if the allegations, taken as true, together with inferences reasonably drawn from them” would entitle her to present her case to a trier of fact and secure a judgment for the three causes of action filed against Defendant Kemp, in the capacity he has been sued. Tex R Civ P 91a.1. By his Rule 91 a Motion, Defendant Kemp challenges Plaintiff’s claim for an oral gift of real estate, which Plaintiff would show is enforceable by equity, since the legal and factual requirements of the three elements for enforcement have been plead. Defendant also challenged the claim of conspiracy between Defendants Kemp, Jones and Donbavand. All of these Defendants were acting outside the course and scope of the corporate business and for their personal purposes, and therefore, are not entitled to defend based on Intra-Corporate Immunity Doctrine. Rule 91a expressly prevents a court from considering evidence in making its determination of a Rule 91a motion. Tex. R. Civ. P. 91a.6. The question in deciding whether a claim has a basis in law is whether “the allegations state a cause of action.” See Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex .. App-Houston [1st Dist.] 2006, no pet); see also Hamilton v Pechacek, 319 SW3d 801, 809 (Tex App -Fort Worth 2010, no pet) (claim has arguable basis in Iaw unless claim presents an "indisputably meritless Plaintiff’s claim for sexual harassment falls within the protection of employees by statute: Tex. Lab. Code Ann Chapter 21, which is “designed with the objective to carry out the purposes of Title VII of Civil Rights Act of 1964, including its prohibition of discrimination on the basis of sex.” The Texas Workforce Commission has accepted her claim of sexual discrimination against Defendants FMP, ALL JONES, Plaintiff would show “It is well settled that, notwithstanding the requirements of the statute of frauds, a parol gift of real estate will be enforced in equity upon 4 establishment of the fact of (1) a present gift; (2) possession under the gift taken and held by the donee with consent of the donor; and (3) permanent and valuable improvements made on the premises by donee in reliance of the gift with the knowledge and consent of the donor. To establish an oral gift of real property, Plaintiff merely must show: (1) a present gift to her by Jones; (2) that she took immediate possession of the described property with Jones’ consent; and (3) she made permanent and valuable improvements to the described property with Jones’ knowledge and consent.” McCuen v. Huey, 255 S.W.3d 716, 726-727 (Tex. App. - Waco 2008); Flores v. Flores, 225 S.W.3d 651, 655 (Tex. App.– El Paso 2006, pet. denied); see also Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191, 192-93 (1951) (citing Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921)). Plaintiff’s claims for oral gift of real estate began with Defendant Kemp being the original co-actor in the gifting. Kemp’s wife inherited the property the subject of this lawsuit and used such property to defraud Plaintiff. See Exhibit B. For Defendant Kemp to assert that he is merely an “employee” is ludicrous, as he is co-founder and co-owner of the defendant companies, by whom Plaintiff was employed, and as such, has strict liability for the harassment. Further, Defendant Kemp was a manager of Plaintiff, and as such, knew or should have known of the harassment. Plaintiff has properly plead her claim of sexual harassment and/or discrimination pursuant to the TCHRA and her claim has been accepted by the Texas Workforce Commission Civil Rights Division, and the EEOC. Plaintiff’s claims against Defendant Kemp are not barred by the doctrine of Res Judicata. Defendant Kemp was not a party to the trial court’s ruling of dismissal of Plaintiff’s claims for oral gift of real estate. The prior ruling, which will definitely be appealed, does not dismiss Defendant Kemp. Kemp, as CFO and monitoring all V. Faire’s Claim of Fraud as it Relates to Oral Gift of Real Estate Is Valid and Enforceable Defendant Kemp, as Co-owner, Co-Founder, and Chief Financial Officer assumed liability for the fraudulent scheme of Defendant Jones, the CEO and co- owner, by providing the home Plaintiff Faire was to accept as an oral gift of real estate to reduce or disallow the wages and expenses due her from employment services in the Dominican Republic which was a 24/7 care of Jones’ infant. Defendant Kemp, as Chief Financial Officer, knew of other employment law 6 VI. Standard of Review Met Plaintiff has given Defendant Kemp, “ fair notice” of her claims against him, fraud, conspiracy and strict liability for the quid pro quo sexual harassment by the The bar for avoiding dismissal by Texas Rule of Civil Procedure 91a is very minimum. All of Plaintiff’s claims are valid causes of action in Texas. The facts available to the Plaintiff support her claims. Defendant Kemp has failed to timely object to the discovery requests of the Plaintiff, and therefore has waived all Plaintiff Faire asserts that once the email traffic between Defendant Kemp, the CFO and Defendant Jones, the CEO is provided, this court will find liability, and find support for exemplary damages against Defendant Kemp. Plaintiff Faire’s claims against Defendant Kemp are properly plead and supported by facts or inferences thereof that would support a denial of the Plaintiff Faire’s claims against Defendant Kemp for quid pro quo sexual harassment are actionable in that he knew Defendant Jones used the actual authority of the Defendant Corporations to harm the Plaintiff. Plaintiff Faire asserts that everyone who has been seriously harmed as Plaintiff has been, deserves her day in court. Plaintiff relied on the fraudulent representations made by Defendant Kemp, the Chief Financial Officer, and she has Defendant Kemp’s complaints as alleged in the Rule 91a Motion are not valid, and in some instances moot. Defendant Kemp cannot complain about the oral gift of real estate because the pleading requirements have been factually met and properly Defendant Kemp has a personal grudge in denying the oral gift of real estate, namely retaliation, Defendant Kemp has a personal purpose of financial gain. His concerted actions are definitely outside the course and scope of the corporate Plaintiff has properly pled her claim of sexual harassment/retaliation and the claim under TCHRA has been accepted. Mediation of this claim has been extended Plaintiff asserts that if Defendant Kemp insists on going forth with his Rule 91a Motion, this Court will find it is groundless and frivolous. Plaintiff seeks attorney fees 8 Plaintiff prays this court deny the motion and grant all other and further relief to LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net By: /s/ Olga Brown_________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff I do hereby certify that on the 16th day of June 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Response to Defendant Kemp’ 91a Motion to Dismiss and Request for Attorneys Fees was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN EXHIBIT DurEA4-41 BIT Aub *** IX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000000668 Check Date: 5/23/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 800.00 15,769.20 GROSS PAY $1,576.92 $15,769.20 DENTAL DENTAL INSURANCE $10.28 102.80 HEMP HEALTH EMPLOYEE ONLY $38,50 385,00 LOAN LOAN REPAYMENT $99.97 99.97 TOTAL DEDUCTIONS $148.75 $587.77 Federal Tax $176.00 1,760.00 FICA Social Security Tax $9474 947.45 FICA Medicare Tax $22.16 221.58 TAXES WITHHELD $292.90 $2,929.03 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $1,135.27 Sick Balance 0.00 DEF-CF-00658 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000000710 Check Date: 6/6/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 880.00 17,346.12 GROSS PAY $1,576.92 $17,346.12 DENTAL DENTAL INSURANCE $10.28 113.08 HEMP HEALTH EMPLOYEE ONLY $38,50 423.50 LOAN LOAN REPAYMENT $99.97 199.94 TOTAL DEDUCTIONS $148.75 $736.52 Federal Tax $176.00 1,936.00 FICA Social Security Tax $94.75 1,042.20 EXHIBIT A FICA Medicare Tax $22.16 243.74 TAXES WITHHELD $292.91 $3,221.94 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation. Balance 0.00 111000025 586034451754 $1,135.26 Sick Balance 0.00 DEF-CF-00659 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC FAIRE, CEARTH Employee ID: REDACTED 8647 TIMBER PLACE SSN: Check Number: DD000000000000000758 Check Date: 6/20/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 960.00 18,923.04 GROSS PAY $1,576.92 $18,923.04 DENTAL DENTAL INSURANCE $10.28 123.36 HEMP HEALTH EMPLOYEE ONLY $38.50 462.00 LOAN LOAN REPAYMENT $99.97 299.91 TOTAL DEDUCTIONS $148.75 $885.27 Fecieral Tax $176.00 2,112.00 FICA Social Security Tax $94.74 1,136.94 EXHIBIT A FICA Medicare Tax $22.15 265.89 TAXES WITHHELD $292.89 $3,514.83 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451734 $1,135.28 Sick Balance 0.00 DEF-CF-00660 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN. Check Number: DD000000000000000829 Check Date: 7/3/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 1,040.00 20,499.96 GROSS PAY $1,576.92 $20,499.96 DENTAL DENTAL INSURANCE $10.28 133.64 HEMP HEALTH EMPLOYEE ONLY $38.50 500.50 LOAN LOAN REPAYMENT $99.97 399.88 TOTAL DEDUCTIONS $148.75 $1,034.02 Federal Tax $176.00 2,288.00 FICA Social Security Tax $94.75 1,231.69 EXHIBIT A FICA Medicare Tax $22.16 288.05 TAXES WITHHELD $292.91 $3,807-74 NET PAY $1,135.26 $15,658.20 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $1,135.26 Sick Balance 0.00 DEF-CF-00661 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000000841 Check Date: 7/18/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY 841,000.00 80.00 $1,576.92 1,120.00 22,076.88 GROSS PAY $1,576.92 $22,076.88 DENTAL DENTAL INSURANCE $11.31 144.95 HEMP HEALTH EMPLOYEE ONLY $63.26 563.78 LOAN LOAN REPAYMENT $99.97 499.85 TOTAL DEDUCTIONS $174.56 $1,208.58 Federal Tax $172.13 2,460.13 FICA Social Security Tax $93.14 1,324.83 ..M_-_ -±taLRX3_ EXHIBIT A FICA Medicare Tax $21.79 309.84 TAXES WITHHELD $287.06 $4,094. 80 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $1,115.30 Sick Balance .0.00 DEF-CF-00662 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000000884 Check Date: 8/1/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 1,200.00 23,653.80 GROSS PAY $1,576.92 $23,653.80 DENTAL DENTAL INSURANCE $11.31 156.26 HEMP HEALTH EMPLOYEE ONLY $63.28 627.06 LOAN LOAN REPAYMENT $99.97 599.82 TOTAL DEDUCTIONS $174.56 $1,383.14 Federal Tax $172.13 2,632.26 FICA Social Security Tax $93.14 1,417_97 EXHIBIT A FICA Medicare Tax $21.78 331.62 TAXES WITHHELD $287.05 $4,381.85 NET PAY $1,115.31 $17,888.81 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $1,115.31 Sick Balance 0.00 DEF-CF-00663 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000000928 Check Date: 8/15/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $41,000.00 80.00 $1,576.92 1,280.00 25,230.72 GROSS PAY $1,576.92 $25,230.72 DENTAL DENTAL INSURANCE $11.31 167.57 HEMP HEALTH EMPLOYEE ONLY $63.28 690.34 LOAN LOAN REPAYMENT $99.97 699:79 TOTAL DEDUCTIONS $174.56 $1,557.70 Federal Tax $172.13 2,804.39 FICA Social Security Tax $93.15 1,511.12 EXHIBIT A FICA Medicare Tax $21.78 353.40 TAXES WITHHELD $287.06 $4,668.91 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $1,115.30 Sick Balance 0.00 DEF-CF-00664 *** Dupllcate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000001010 Check Date: 8/29/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $45,000.00 80.00 $788.42 1,400.00 26,884.51 GROSS PAY $788.42 $26,884.51 DENTAL DENTAL INSURANCE $11.31 178.88 HEMP HEALTH EMPLOYEE ONLY $63.28 753.62 LOAN LOAN REPAYMENT $99.97 799.76 TOTAL DEDUCTIONS $174.56 $1,732.26 Federal Tax $53.85 2,934.82 FICA Social Security Tax $44.26 1,609.03 EXHIBIT A FICA Medicare Tax $10.35 376.30 TAXES WITHHELD $108.46 $4,920.15 Direct Deposit Information Time Off 'Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $505.40 Sick Balance 0.00 DEF-CF-00666 *** Duplicate Pay Stub *** TX Alamo Business Group, LLC REDACTED FAIRE, CEARTH Employee ID: 8647 TIMBER PLACE SSN: Check Number: DD000000000000001021 Check Date: 9/5/2014 SAN ANTONIO TX 78250 Current Year-To-Date Code Description Pay Rate Hours Amount Hours Amount SALARY SALARIED PAY $45,000.00 40.00 $865.37 1,440.00 27,749.88 GROSS PAY $865.37 $27,749.88 DENTAL DENTAL INSURANCE $0.00 178.88 HEMP HEALTH EMPLOYEE ONLY $0.00 753.62 LOAN LOAN REPAYMENT $199.94 999.70 TOTAL DEDUCTIONS- $199.94 $1,932.20 Federal Tax $76.58 3,011.40 FICA Social Security Tax $53.65 1,662.68 EXHIBIT A FICA Medicare Tax $12.55 388.85 TAXES WITHHELD $142.78 $5,062.93 Direct Deposit Information Time Off Balance Hours Bank Account Amount Vacation Balance 0.00 111000025 586034451754 $522.65 Sick Balance 0.00 Sent: Thursday, October 09, 2014 3:05 PM To: Allen Jones Subject: FW: Cearth Deductions Attachments: Copy of cearth xlsx FYI —Cearth's next car payment is not until 11/1. Tiffany pulled October's payment out of her last check thinking it was September's. We will try ACH'ing her next payment out on 11/1 and if we cannot get it, we will default her and repossess the car As for the house, Cearth's eviction hearing is scheduled for next week Olga sent another letter basically stating Cearth owned the house because it was promised which is laughable. Vice President Real Estate & Business Development Food Management Partners 210-403-3725 ext 218 pdonbavand@foodmps.com Confidentiality: The information contained in this e-mail and any attachments to it is privileged, confidential, and protected from disclosure. If you are not the intended recipient, you are hereby notified that any dissemination, distribution or duplication of this communication is strictly prohibited If you have received this communication in error, please notify the sender immediately, and delete it from your network server and/or hard drive. From: Peter Donbavand Sent: Thursday, October 09, 2014 9:52 AM To: Bob Amaro Cc: Nathan Calvert Subject: RE: Cearth Deductions No, the information provided is sufficient It looks like Tiffany took Cearth's Oct payment on 9/5 (which she really shouldn't have done but hopefully Cearth's attorney doesn't catch it so she does not owe All Jones, LLC any money until 11/1 The attached is not perfect but is close enough. Cearth has paid about $1,600 to date which is what she should have paid through Oct to date. We will have to wait until 11/1 to try ACH'ing the next payment from her account Vice President Real Estate & Business Development Food Management Partners 210-403-3725 ext 218 pdonbavand@foodmps.com Confidentiality: The information contained in this e-mail and any attachments to it is privileged, confidential, and protected from disclosure If you are not the intended recipient, you are hereby notified that any dissemination, distribution or duplication of this communication is strictly prohibited If you have received this communication in error, please notify the sender immediately, and delete it from your network server and/or hard drive PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC) 12-05-11 (NOTICE: For use only when BUYER occupies the property for no more than 90 days PRIOR the closing) tqU~L HOUSING QPPO/IlUNJTY BUYER'S TEMPORARY RESIDENTIAL LEASE 1. PARTIES: The parties to this Lease are_ _:Tc..: a: . ra:: . . :. .K:. : :e: . :m. :.cp::.___ _ _ _ _ _ _ _ _ _ _ _ _ _=----,-,,- (Landlord) and Ceartb Faire (Tenant). 2. LEASE: Landlord leases to Tenant the Property described in the Contract between Landlord as Seller and Tenant as Buyer known as 9647 Timber Place San Antonio TX _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (address). 3. TERM: The term of this Lease commences July 30, 2014 and terminates as specified in Paragraph 18. 4. RENTAL: Rental will be$ 40.00 per day. Upon commencement of this Lease, Tenant shall pay to Landlord the full amount of rental of$ 1,200 00 for the anticipated term of the Lease (commencement date to the Closing Date specified in Paragraph 9 of the Contract). If the actual term of this Lease differs from the anticipated term, any additional rent or reimbursement will be paid at closing. No portion of the rental will be applied to payment of any items covered by the Contract. 5. DEPOSIT: Tenant has paid to Landlord $ 0.00 as a deposit to secure performance of this Lease by Tenant. If this Lease is terminated before the Closing Date, Landlord may use the deposit to satisfy Tenant's obligations under this Lease. Landlord shall refund to Tenant any unused portion of the deposit together with an itemized list of all deductions from the deposit within 30 days after Tenant (a) surrenders possession of the Property and (b) provides Landlord written notice of Tenant's forwarding address. If this Lease is terminated by the closing and funding of the sale of the Property, the deposit will be refunded to Tenant at closing and funding. NOTICE: The deposit must be in addition to the earnest money under the Contract. 6. UTILITIES: Tenant shall pay all utility connections, deposits and charges except-;--,----;-;-~:--:;----- none , which Landlord shall pay. 7. USE OF PROPERTY: Tenant may use the Property only for residential purposes. Tenant may not assign this Lease or sublet any part of the Property. 8. PETS: Tenant may not keep pets on the Property except -"""b'"-'"rd,.___ _ _ _ _ _ _ _ _ _ _ _ __ 9. CONDITION OF PROPERTY: Tenant accepts the Property in its present condition and state of repair, but Landlord shall make all repairs and improvements required by the Contract. If this Lease is terminated prior to closing, Tenant shall surrender possession of the Property to Landlord in its present condition, as improved by Landlord, except normal wear and tear and any casualty loss. 10.ALTERATIONS: Tenant may not: (a) make any holes or drive nails into the woodwork, floors, walls or ceilings (b) alter, paint or decorate the Property or (c) install improvements or fixtures without the prior written consent of Landlord. Any improvements or fixtures placed on the Property during the Lease become a part of the Property. 11.SPECIAL PROVISIONS: 12.INSPECTIONS: Landlord may enter at reasonable times to inspect, replace, repair or complete the Improvements. Tenant shall provide Landlord door keys and access codes to allow access to the Property during the term of the Lease. 13.LAWS: Tenant shall comply with all applicable laws, restrictions, ordinances, rules and regulations with respect to the Property. 14.REPAIRS AND MAINTENANCE: Except as otherwise provided in this Lease. Tenant shall bear all expense of repairing, replacing and maintaining the Property, including but not limited to the yard, trees. shrubs, and all equipment and appliances, unless otherwise required by the Texas Property Code. Tenant shall promptly repair at Tenant's expense any damage to the Property caused directly or indirectly by any act or omission of the Tenant or any person other than the Landlord, Landlord's agents or invitees. Buyer's Temporary Residential Lease_ _""'9"'-64_,_7L......!T.....,im_,_,_,b""e._r~.._PJ.>Ia,_,c""e~S=acun'-'-A--"n-'-'t""'o'-'n,_,io'-'-'T-'-X_,___ _ _ _ _ _ Page 2 of 2 12-05-11 (Address of Property) 15.INDEMNITY: Tenant indemnifies Landlord from the claims of all third parties for injury or damage to the person or property of such third party arising from the use or occupancy of the Property by Tenant. This indemnification includes attorney's fees, costs and expenses incurred by Landlord. 16.INSURANCE: Landlord and Tenant shall each maintain such insurance on the contents and Property as each party may deem appropriate during the term of this Lease. NOTE: CONSULT YOUR INSURANCE AGENT; POSSESSION OF THE PROPERTY BY BUYER AS TENANT MAY CHANGE INSURANCE POLICY COVERAGE. 17 .DEFAULT: If Tenant fails to perform or observe any provision of this Lease and fails, within 24 hours after notice by Landlord, to commence and diligently pursue to remedy such failure, Tenant will be in default. 18.TERMINATION: This Lease terminates. upon (a) closing and funding of the sale under the Contract, (b) termination of the Contract prior to dosing, (c) Tenant's default under this Lease, or (d) Tenant's default under the Contract, whichever occurs first. Upon termination other than by closing and funding of the sale, Tenant shall surrender possession of the property. 19.HOLDING OVER: Any possession by Tenant after termination creates a tenancy at sufferance and will not operate to renew or extend this Lease. Tenant shall pay $ 100 per day during the period of any possession after termination as damages, in addition to any other remedies to which Landlord is entitled. 20.ATTORNEY'S FEES: The prevailing party in any legal proceeding brought under or with respect to this lease is entitled to recover from the non-prevailing party a!l costs of such proceeding and reasonable attorney's fees. 21.SMOKE ALARMS: The Texas Property Code requires Landlord to install smoke alarms in certain locations within the Property at Landlord's expense, Tenant expressly waives Landlord's duty to inspect and repair smoke alarms. 22.SECURITY DEVICES: The requirements of the Texas Property Code relating to security devices do not apply to a residential lease for a term of 90 days or less. 23.CONSULT YOUIIR ATTORNEY: Real estate licensees cannot give legal advice. This Lease is intended to be legally binding. READ IT CAREFULLY. If you do not understand the effect of this Lease, consult your attorney BEFORE signing. 24.NOTICES: All notices from one party to the other must be in writing and are effective when mailed to, hand-delivered at, or transmitted by facsimile or electronic transmission as follows: To Landlord: To Tenant: -------------------------- Tara Kemp 9647 Timber Place 120 Chula Vista San Antonio, TX San Antonio, TX 78232=------~---- Telephone: ( ) Telephone: _,(__L._)_ _ _ _ _ _ _ __ Facsimile: __,.i__ __L)_ _ _ _ _ _ _ _ _ __ Facsimile: ( ) ~--~---------------------- E-mail: E-mail: · The form of this contract has been approved by the Texas Real Estate Commission. TREC forms are intended for use only by trained real estate I licensees. No representation is made as to the legal validity or adequacy of any provision In any specific transactions. It Is not intended for ! complex transactions. Texas Real Estate Commission, P.O. Box 12188, Austin, TX 78711-2188, 512-936·3000 (http://www.trec.texas.gov) TREC NO. 16-5. This form replaces TREC NO. 16·4. ·------------·-·········-···········-····--··----·----·····---··--·····--·······-----·······--··--·---·-·-·------·--···-···--···--·-···-·-··-----------' TREC NO. 16-5 Appendix 11 Appendix 12 Appendix 13 Appendix 14 CAUSE NO. 2014-CI-16674 CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS Plaintiff, Cearth Faire, files this Fourth Amended Original Petition against defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners, LLC, ALL JONES, LLC, Allen J Jones, Peter Donbavand and Jason Kemp, and 1. A Level Three Agreed Docket Control Order is in place, this matter is set for 2. Plaintiff seeks monetary relief over $200,000.00 but not more than 3. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place, MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is represented by 5. Defendant ALL JONES, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is 6. Defendant Allen J Jones, is an individual who has been served and is 7. Defendant Peter Donbavand, is an individual has been served and is 8. Defendant Jason Kemp is an individual whose business address is Food Management Partners, LLC 120 Chula Vista, San Antonio, TX 78232. He may 9. The Court has subject-matter jurisdiction over the lawsuit because the amount in controversy exceeds this Court’s minimum jurisdictional requirements. 10. Venue is proper in Bexar County as all or a substantial part of the events or 11. Plaintiff Faire was an employee of Defendants, as well as a personal assistant to Defendant Jones. Plaintiff, in addition to working for Defendants’ businesses, also took care of Defendant Jones’ personal matters, including living in the Dominican Republic for approximately five months on a 24/7 basis assisting in his defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been 12. Defendant Jones, individually, in recognition for her loyal and tireless services personal to him, promised Plaintiff a home. Defendant Jones developed a scheme for his purchase of the house that included telling other corporate officers that Plaintiff’s pay increase was for the house payments. Defendant Jones intended to hide his gift from the other Defendants named in this lawsuit, until he retaliated against Plaintiff by denying he had made a gift of real estate to Plaintiff. 13. Defendant Jones, in his individual capacity, negotiated with Defendant Jason Kemp, whose wife owned the residence at 8647 Timber Pl, San Antonio, TX 78250. Defendant Jones then instructed, Defendant Donbavand, in his individual capacity and outside the scope of corporate business to prepare the necessary documents so he, Jones could purchase the residence for the Plaintiff. 14. Defendant Donbavand, while a business partner of Defendant Jones and also an agent of Defendant FMP, routinely served Defendant Jones as a personal aide and routinely took orders from Jones outside the course and scope of his duties with the corporate entities to meet the personal demands of Defendant Jones, 15. Defendant Kemp, also a business partner of Defendant Jones, took orders and assumed duties outside the course and scope of the corporate entities upon demand from Defendant Jones the President & CEO of Defendant FMP. Defendant Jones treats the corporate entities as his “piggy bank” and Defendants Donbavand and 16. Defendant Kemp routinely succumbs to the personal demands of Defendant Jones outside the best interests of the corporate business as in this case to sell him the residence at 8647 Timber Pl, San Antonio, TX 78250, so he could gift the property to the Plaintiff in consideration for her assisting in his personal legal matters. documents, again outside the course and scope of corporate business, Defendant Jones requested that Plaintiff move into the house, orally gifting her the house, a present gift. Plaintiff in reliance of his oral promised moved into the house with the consent of Defendant Kemp and the request of Defendant Jones and made valuable and permanent improvements in reliance of Defendant Jones promise to her. 4 18. Plaintiff incurred moving expenses as well as expenses in making permanent improvements to the residence to make it habitable. The residence is still in need of significant repairs. An inspection was ordered by the defendants as further proof of Defendant Jones’ purchase with intention to make a gift. 19. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent promotion based on meritorious work.. Defendant Jones demanded the other defendants Defendant Peter Donbavand and Defendant Jason Kemp evict Plaintiff from the house he had given her. The wrongful eviction proceedings were abated, as the justice of the peace court lacks jurisdiction to rule on the petition for eviction in that title to the property is at issue. The wrongful eviction proceedings are outside the 20. Defendants continued to harass the Plaintiff by wrongfully repossessing her car. Plaintiff had clear title to her 2005 Mini Cooper. Jones promised to repair her car. An ambiguous payment plan was put in place. However, in retaliation for claiming her rightful title to her house, Jones has deprived Plaintiff of a necessity, of transportation to seek employment. During the repossession process, Jones terrorized her by sending strangers to ring her doorbell, all while he owns a million dollars worth of automobiles, and spends a great deal of his time in the Dominican Republic. 21. Plaintiff had an exemplary employment record before being hired by Defendants FMP and ALL JONES, LLC. Immediately before being fired by Defendants, Faire had been given a raise in pay and been entrusted with additional duties. Plaintiff was fired solely because Plaintiff refused to continue to perform employment duties that were not in furtherance of the corporate business and because of Defendant Jones’ demands for demeaning sexual acts and explicit threats 22. Plaintiff seeks actual damages as a result of the sexual harassment and discrimination, which include, but are not limited to back pay from the date of quid pro quo retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and benefits including the repossession of her automobile lost as a result of her unlawful 23. Plaintiff also seeks damages for past and future mental anguish as a result of Defendant Jones explicitly forcing her to choose between the sexual abuse 24. Defendant Jones acted with malice toward Plaintiff in that Jones exhibited conscious indifference to consequences Plaintiff might suffer separate and apart from the damages suffered as a result of the retaliation. Defendant Jones, as President and CEO, has inflicted additional injuries by circulating malicious rumors about the Plaintiff at corporate headquarters. Plaintiff therefore seeks exemplary 25. On or about March 27, 2013, when Plaintiff Faire was temporarily living in the Dominican Republic at the request of Defendant Jones, taking care of Jones’ child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas. 26. On or about July 20 2014, Plaintiff moved into the house at 8647 Timber Pl, San Antonio, Texas 78250, that Defendant Jones gifted her in his individual capacity but with the knowledge and consent of all Defendants. Plaintiff is still living at her home, taking possession under the present gift. 27. Plaintiff has made permanent and valuable improvement to the home based on the reliance of the gift made to her by Defendant Jones as an individual. 28. It was reasonable for Plaintiff to rely on Defendant Jones’ promise of an oral gift of real estate based on Defendant Jones’ financial resources, including but not limited to ownership in franchises of Zio’s Italian Kitchen, Buffalo Wild Wings, Don Pablo’s Big Tex Bold Mex, Furr’s, Little Ceasar’s and Smashburger. 29. Further, Defendant Jones boasts of having presently one million dollars worth of cars and extensive real estate holdings in the state. In other judicial proceedings, Defendant Jones bragged about owning 150 businesses and having financial resources to “buy” a young lady from a brothel for $10,000.00 in the Dominican Republic where he also has extensive real estate holdings. 30. Defendant Jones informed the Plaintiff that he was buying the house from Defendant Kemp, and that at closing, he would give her full title and interest to the home. Defendants Jones further promised the closing would take place immediately upon the reaching of an agreement on the final price and other terms. A final purchase price was reached between Defendant Jones and Defendant Jason Kemp. All terms for the sale of the house were reached by buyer and seller, and having absolutely nothing to do with the business of the corporate entities, parties herein 31. Defendant Jones negotiated all the terms of the real estate purchase to make a present gift of real estate to Plaintiff. Defendant Jones, Defendant Kemp, and Defendant Donbavand knew the house located at 8647 Timber Pl, San Antonio, TX 78250 purchased from Kemp’s wife, Tara Kemp, was a gift of real estate to the Plaintiff. Defendant Donbavand ordered an inspection of the home in furtherance of a prompt closing, all outside of the course and scope of corporate business.. 32. Defendant Jones made this gift to Plaintiff as an individual and not as President & CEO of the other corporate defendants. Defendant Jones purchased the home from Defendant Kemp as an individual and not as a transaction within the necessary documentation and transactions outside the course and scope of 8 corporate business. Defendant Donbavand routinely acts as Defendant Jones’ personal aide to carry out his orders regarding personal matters. Defendant Donbavand is experienced in real estate transactions and worked to completing the necessary documents. In the meantime, in a fit of retaliation, Defendant Jones changed his mind about the gift. Plaintiff has been living in the house for eight 34. Plaintiff asserts this oral gift of real estate must be enforced in equity as the facts herein establish a gift of real estate, notwithstanding the requirements of 35. Defendants Peter Donbavand and Jason Kemp, as individuals acting outside their corporate duties, assisted Defendant Jones in conduct which they knew amounted to a commission of a tort or wrongful acts against the Plaintiff, and specifically acting to rescind the oral gift of real estate to Plaintiff 36. Defendant Donbavand and Defendant Kemp acted with intent to assist Defendant Jones in his wrongful acts toward Plaintiff of attempting to rescind the 37. Defendant Donbavand and Defendant Kemp’s assistance to Defendant Jones and their own related conduct was a substantial factor in the breach of the present gift Defendant Jones made to Plaintiff. COUNT 3 QUID PRO QUO SEXUAL HARASSMENT 38. Plaintiff was an employee of Defendants FMP, ALL JONES and their subsidiaries, and her duties were to serve as a personal assistant to the Defendant Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self- supporting divorced woman with no financial resources other than her wages. Plaintiff also had an exemplary work history prior to working for Defendants. 39. Plaintiff raises this claim under Tex. Lab. Code Ann. §§ 21.001, .051 (West 1996), which prohibits discrimination on the basis of sex. 40. On or about January 21, 2013 Defendant Jones made sexual advances toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical conduct of a sexual nature. Defendant Jones’s demands escalated and the mental abuse was so extreme that it prevented Plaintiff from defending herself. 41. Defendant Jones made it cleared to the Plaintiff that continued employment as well as other job benefits were conditioned on her acceptance of the 42. At the time of the harassment, Defendant Jones was the President and CEO of the Food Management Partners, a Texas LLC. At all times, Defendant Jones held himself out to Plaintiff and to the public, as a very powerful business man, and owner of 150 businesses. Defendant Jones instilled fear of his financial power on Plaintiff. There was no recourse available to the Plaintiff to complain. 10 43. Plaintiff was harmed by the physical sexual conduct perpetrated against her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by Defendant Jones sexual harassment. When Plaintiff was mentally well enough to, she refused to further submit to Defendant Jones’ inappropriate requests she was 44. Plaintiff seeks compensatory damages for lost wages, lost benefits and future employment opportunities based on her traumatic experience at the hand of 45. Plaintiff seeks exemplary damages based on Defendant Jones’s history of sexual harassment of others and including the purchase of a female as if she was 46. Further, Plaintiff seeks exemplary damages against Defendant Donbavand and Defendant Kemp, as her injury resulted from Defendants’ malice, which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code 47. Plaintiff has demanded a jury trial and tendered the appropriate fee with her original petition. The jury trail has been set for November 2, 2015. CONDITIONS PRECEDENT 48. All conditions precedent to plaintiff’s claim for relief have been performed or 49. Plaintiff objects to the referral of this case to an associate judge for For these reasons, Plaintiff asks that Defendants be cited to appear and answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for b. Economic and non-economic damages including, but not limited to back pay, front pay, severance pay, specific performance regarding the gift purchase of a home (or its monetary equivalent). LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net By: /s/ Olga Brown_________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff I do hereby certify that on the 10th day of March 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Fourth Amended Original Petition was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN Appendix 15 Feb. 10. 2015 !2:31PM Law Office of Olga Brown No. 6792 P. I LAW OFFICES OF OLGA BROWN 111 SOlE;DAD, SUITE 1725 SAN ANTONIO, TEXAS 78205 (21 0) 226-1550 TELECOPIER (210) 226-1884 February 11, 2015 Donna Kay McKinney Bexar County District Court Clerk 300 Dolorosa, Suite 217 SanAntonio, Texas 78205 VACATION NOTICE Dear Ms. McKinney: Please accept this correspondence as notice that I will be on vacation and unavailable for hearings, settings or trials on the following dates: March 18, 2015 through March 25, 2015 April2, 2015 through April?, 2015 June 3, 2015 through June 12, 2015 (previously filed) July 2, 2015 through July 7, 2015 September4, 2015 through September 9, 2015 November 24, 2015 through November 27, 2015 December 24, 2015 December 31, 2015 By copy of this letter, I am notifying all counsel of record of my plans and asking them to please not schedule any hearings, depositions or trials during this time Thank you for your cooperation in this matter ROWN OB/mf Vacation Letter of Olga Brown, Page I of2 Appendix 16 CAUSE NO. 2014-CI-16674 CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF’S THIRD AMENDED ORIGINAL PETITION Plaintiff, Cearth Faire, files this Third Amended Original Petition against defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners, LLC, ALL JONES, LLC, Allen J Jones, and Peter Donbavand, and alleges as follows: 1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil Procedure 190.4 and affirmatively pleads that this suit is not governed by the expedited-actions process in Texas Rule of Civil Procedure 169 because she may seek injunctive relief. Plaintiff has a pending Motion for a Level Three Docket Control Order, and the parties entered into a Rule 11 Agreement showing intent to enter into an Agreed Docket Control Order and setting this matter for Jury Trial November 2, 2015. See Exhibit A. CLAIM FOR RELIEF 2. Plaintiff seeks monetary relief over $200,000.00 but not more than PARTIES 3. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place, MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is represented by 5. Defendant ALL JONES, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and and has been served and is 6. Defendant Allen J Jones, is an individual who has been served and is 7. Defendant Peter Donbavand, is an individual has been served and is 8. The Court has subject-matter jurisdiction over the lawsuit because the amount in controversy exceeds this Court’s minimum jurisdictional requirements. 9. Venue is proper in Bexar County as all or a substantial part of the events or 10. Plaintiff Faire was an employee of Defendants, as well as a personal assistant to Defendant Jones. Plaintiff, in addition to working for Defendants’ businesses, also took care of Defendant Jones’ personal matters, including living in the Dominican Republic for approximately five months on a 24/7 basis assisting in his defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been properly compensated for her services. 11. Defendant Jones, in recognition for her loyal and tireless services assumed the role of her benefactor. In his role as a benefactor Defendant Jones promised Plaintiff that he would buy a home and transfer ownership to Plaintiff, so she would never have worries about a residence. Defendant Jones developed a scheme for his purchase of the house that included telling other corporate officers that Plaintiff’s pay increase was for the house payments. Defendant Jones intended to hide his gift from the other Defendants named in this lawsuit. Defendants have a real estate department as part of their businesses, and therefore, Plaintiff was further inclined to believe his promise to purchase and transfer ownership. 12. Although Defendant Jones intended to disguise the gift of the residence from his business partners, nevertheless he authorized for the necessary real estate transactions to be initiated that would result in a purchase transaction and an immediate transfer of ownership. Plaintiff relied on Defendant Jones’ promise and she moved into the residence at 8647 Timber Place, San Antonio, Texas 78250. 13. Plaintiff incurred moving expenses as well as expenses in making repairs to the residence to make it habitable. The residence is still in need of significant repairs. An inspection was ordered by the defendants as further proof of Defendant Jones’ purchase with intention to make a gift. Further, in reliance that the home would be given to her, Plaintiff agreed to sign a one-month lease. 14. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent promotion based on meritorious work.. Defendant Jones has now conspired with the other defendants including Defendant Peter Donbavand to evict Plaintiff from the house she was promised. The wrongful eviction proceedings were abated, as the justice of the peace court lacks jurisdiction to rule on the petition for eviction. 15. Defendants continue to harass the Plaintiff by wrongfully repossessing her car. Plaintiff had clear title to her 2005 Mini cooper. Jones promised her an ambiguous payment plan, and in retaliation for claiming her rightful title to her house, he has deprived Plaintiff of a necessity of transportation to seek employment. During the repossession process, he terrorized her by sending strangers to ring her doorbell, all while he owns a million dollars worth of automobiles, and spends a great deal of his time in the Dominican Republic. 4 16. Plaintiff had an exemplary employment record with Defendants FMP and ALL JONES, LLC, and had immediately before the firing, been given a raise in pay and additional duties. Plaintiff was fired solely because Plaintiff refused to continue perform employment duties that were not in furtherance of the corporate business but to serve as a shield for Defendant Jones numerous illegal activities some including sexual harassment. Defendant Peter Donbavand, a business partner of Defendant Jones was aware of the employment violations occurring at the corporations and by non-action, condoned the wrongful conduct of Defendant Jones. 17. Plaintiff seeks actual damages as a result of the wrongful termination, which include, but are not limited to back pay from the date of retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and benefits including the repossession of her automobile lost as a result of her wrongful termination. 18. Plaintiff also seeks damages for past and future mental anguish as a result of Defendant Jones forcing her to choose between the illegal activities he was demanding of her and her livelihood. 19. Defendant Jones acted with malice toward Plaintiff in that Jones exhibited conscious indifference to consequences Plaintiff might suffer separate and apart from the damages suffered as a result of the wrongful termination. Defendant Jones and Defendant Donbavand have inflicted additional injuries by circulating malicious rumors about the Plaintiff, harassing the Plaintiff and other activities which affect her future employment. Plaintiff therefore seeks exemplary damages. COUNT 1-PROMISSORY ESTOPPEL as a CLAIM 20. On or about March 27, 2013, when Plaintiff Faire was temporarily living in the Dominican Republic at the request of Defendant Jones, taking care of Jones’ child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas. 21. It was reasonable for Plaintiff to rely on Defendant Jones’ promise to purchase a home and gift it to her based on Defendant Jones’ financial resources, including his ownership of one million dollars worth of cars, and extensive property real estate holdings in the United States, and in the Dominican Republic. 22. Defendant Jones promised the Plaintiff that he would execute a written agreement at closing, giving her full title and interest to the home. Defendant Jones further promised the closing would take place immediately upon the reaching of an agreement on the final price and other terms. A final purchase price was reached between Defendant Jones and his business partner Jason Kemp. All terms for the sale of the house were reached by buyer and seller. 23. Defendant Jones negotiated all the terms of the real estate purchase. Defendant Jones had reached an agreement with his business partner, Jason Kemp to purchase the house located at 8647 Timber Place San Antonio, Texas 78250 from Kemp’s wife, Tara Kemp. The real estate actions necessary for a closing were initiated. Defendant Donbavand ordered an inspection of the home in furtherance of a prompt closing. 6 24. Although there were no uncertainties regarding the purchase of the home by Defendant Jones for the Plaintiff, there was a delay in the closing. Plaintiff was asked to sign a one month lease pending the real estate closing. In signing the one-month lease, Defendant Jones promised he would sign the necessary documents to give Plaintiff full and complete ownership of the home in consideration for her loyal efforts in assisting Defendant Jones in the defense of his suit for divorce. 25. It now appears that Defendant Jones, acting in concert with Defendant Donbavand, who appeared in Justice of Peace court attempting to practice law without a license, regarding this promise, made the following: a. a false representation or concealment of material facts concerning the real estate transaction; b. made representation with knowledge, actual or constructive, of those facts; c. with the intention that it should be acted on; d. to a party without knowledge or the means of knowledge of those facts e. who detrimentally relied upon the misrepresentation 26. Plaintiff contends the promise to complete the transaction (closing of the real estate) conveying title to Plaintiff is binding against Defendant Jones in order to avoid injustice. Plaintiff further contends equitable estoppel alleged above is sufficient to preclude the statute of fraud defense to this promise of a home to Plaintiff. COUNT 2 QUID PRO QUO SEXUAL HARASSMENT 27. Plaintiff was an employee of Defendants FMP, ALL JONES and their subsidiaries, and her duties were to serve as a personal assistant to the Defendant Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self- supporting divorced woman with no financial resources other than her wages. Plaintiff also had an exemplary work history prior to working for Defendants. 28. On or about January 21, 2013 Defendant Jones made sexual advances toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical conduct of a sexual nature. Defendant Jones’s demands escalated and the mental abuse was so extreme that it prevented Plaintiff from defending herself. 29. Defendant Jones made it cleared to the Plaintiff that continued employment as well as other job benefits were conditioned on her acceptance of the 30. At the time of the harassment, Defendant Jones was the President and CEO of the Food Management Partners, a Texas LLC. At all times, Defendant Jones held himself out to Plaintiff and to the public, as a very powerful business man, and owner of 150 businesses. Defendant Jones instilled fear of his power on Plaintiff. There was no recourse available to the Plaintiff to complain. 31. Plaintiff was harmed by the physical sexual conduct perpetrated against her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by Defendant Jones sexual harassment. When Plaintiff was well enough to, she refused to further submit to Defendant Jones’ inappropriate requests she was fired on or about August 31, 2014. 8 32. Plaintiff seeks compensatory damages for lost wages, lost benefits and future employment opportunities based on her traumatic experience at the hand of 33. Plaintiff seeks exemplary damages based on Defendant Jones’s history of sexual harassment of others and including the purchase of a female for his own inappropriate sexual requests. 34. Further, Plaintiff seeks exemplary damages against all Defendants, as her injury resulted from Defendants’ malice, which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code section 41.003(a). COUNT 3 – Conspiracy 35. Defendant Peter Donbavand and Jason Kemp, CFO of FMP assisted Defendant Jones in conduct which they knew amounted to a commission of a tort or wrongful acts against the Plaintiff. 36. Defendant Donbavand and Kemp acted with intent to assist Defendant Jones in his wrongful acts toward Plaintiff including the discriminatory practices perpetrated against Plaintiff more fully described in Petitioner’s Third Amended Original Petition. 37. Defendant Donbavand and Kemp’s assistance to Defendant Jones and their own related conduct was a substantial factor in causing the discriminatory practices and in the breach of the promise Defendant Jones made to Plaintiff. COUNT 4 – Fraud 38. Additionally, Plaintiff Faire pleads fraud on the part of Defendant Jones and aided and abetted by the other Defendants. Petitioner alleges that Defendants are barred from using the statute of frauds to avoid the promise of gifting real estate, namely the residence at 8647 Timber Place, San Antonio, TX 78250 to Plaintiff. 39. Plaintiff claims the gift of real estate must be enforced in equity as the denial of the enforcement would amount to a virtual fraud. See Exxon Corp. Breezevale, Ltd, 82 S.W.3d 429, 439 (Tex. App—Dallas 2002, pet. denied). 40. Plaintiff alleges the facts of her claim removes the suit from the operation of the statute of frauds in that it meets the elements required as set forth; (1) payment of consideration, (2) possession by the promisee and (3) the making by the promisee of valuable improvements; 41. Plaintiff shows it is undisputed that she worked Defendant Jones with the knowledge of all Defendants for nearly five months in the Dominican Republic on a 24/7 basis as consideration, and she has refrained from a claim of wage and hour violations, in reliance of the promise; Plaintiff has properly taken possession of the home pursuant to a document prepared by the Defendants and Plaintiff has made valuable improvements on the faith of the Agreement/promise. 10 42. Defendant Peter Donbavand has employed one Robert Ray, attorney at law to initiate eviction proceedings against Plaintiff on two occasions with the full knowledge of Defendant Jones’ promise to Plaintiff. Therefore, Plaintiff’s injuries resulted from Defendants’ actual fraud or malice, which entitles Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a). 43. Plaintiff has demanded a jury trial and tendered the appropriate fee with her 44. All conditions precedent to plaintiff’s claim for relief have been performed or 45. Plaintiff objects to the referral of this case to an associate judge for hearing a For these reasons, plaintiff asks that defendant be cited to appear and answer and, on final trial, that plaintiff be awarded a judgment against defendant for the following: b. Economic and non-economic damages including, but not limited to back pay, front pay, severance pay, specific performance regarding the gift purchase of a home (or its monetary equivalent). c. Prejudgment and postjudgment interest. LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net By: /s/ Olga Brown_________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff I do hereby certify that on the 30th day of January 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Third Amended Original Petition was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN 12 FILED 1/14/2015 2:03:54 PM Donna Kay McKinney EXHIBIT A Bexar County District Clerk Accepted By: Bonnie Banks Appendix 17 FILED 1/28/2015 3:21:38 PM Donna Kay McKinney Bexar County District Clerk Accepted By: Valeria Zapata CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF’S RESPONSE TO DEFENDANTS’ RULE 91a MOTION TO DISMISS and REQUEST FOR ATTORNEY FEES NOW COMES PLAINTIFF CEARTH FAIRE, who respectfully requests this court to deny Defendants FMP SA Management Group, LLC, ALL JONES, LLC, Allen J Jones, and Peter Donbavand’s Motion to Dismiss pursuant to Texas Rule of Civil Procedure 91a, and in support of such request Plaintiff would show the court as Plaintiff Faire has timely filed petition addressing all the complaints contained in the Defendants’ pleadings. Plaintiff has now succinctly addressed all elements of each and every cause of action and supports allegations with facts that are true and that “a reasonable person could believe the facts plead” . Plaintiff would further show that “if the allegations, taken as true, together with inferences reasonably drawn from them would entitle her to present her case to a trier of fact and secure a verdict. Plaintiff would show she has alleged sexual harassment and it is definitely a recognized cause of action under the Texas Human Rights Act. Petitioner has alleged quid pro quo sexual harassment against her employer, Defendant Allen elect between acceding to his sexual demands and forfeiting the job, benefits, continued employment or promotion. Plaintiff would show Defendants are barred from invoking the statute of frauds as to the home Defendant Jones promised Plaintiff because of equitable promissory estoppel. Defendant Jones made a promise of a written transfer and but for his agreement of executing his written transfer of ownership, the requirement of the statute of fraud in regards to real estate would have been met. Plaintiff would show that she has made a demand for the return of her personal property including her phone, iPad and other electronics that contain personal information that a refusal by the Defendants amounts to an invasion of privacy for which she sues. Petitioner has properly plead all of the elements for conversion of her personal property. II. Defendants Have Failed to Meet the Standard That Would Require a Dismissal of Plaintiff’s Suit Plaintiff has properly plead her all her causes of action against all of the Defendants. Petitioner contends all Defendants acted in concert with Defendant 2 Jones to defraud Plaintiff and cause her harm and for which she seeks damages against them jointly and severally. Plaintiff has shown that each and every cause of action has a basis in law as the claims for wrongful termination fall within the exception of employment at will. Plaintiff has plead sufficient facts to support her claims. The Rule does not require her to prove her case at this time but merely to give notice of her claims. See Affidavit of Cearth Faire herein attached and incorporated for all purposes. Plaintiff has shown that Defendants’ are barred from invoking the statute of frauds as to her claims for a gift of real estate under the theory of equitable estoppel. It is reasonable to believe that Defendant Jones would gift Plaintiff a home based on his demands for her efforts while living in the Dominican Republic taking her of his infant son. Plaintiff would show that Defendant Jones has the financial resources to make the promise, that she could reasonably rely on the representation he would buy a home and the promise to transfer ownership to her. Plaintiff showed diligence in securing the documents to support her claim. A formal request of all email correspondence and documents prepared by Defendants including those documents prepared by Peter Donbavand in furtherance of purchasing the home from Tara Kemp, wife of partner, Jason Kemp. Those documents were due at the law office of the undersigned on January 5, 2015. Defendants have objected to the production of documents. Plaintiff intends to file a Motion to Compel such documents that would support her claim that Defendant Jones represented to her he would purchase a home and immediately convey that interest to her. In reliance of the promise made to her, Plaintiff moved into the house, made repairs and incurred other expenses. Plaintiff would show that this court can enforce an oral promise to sign an Instrument complying with the Statute of Frauds if: (1) the promisor should have expected that his promise would lead the promisee to some definite and substantial injury; (2) such an injury occurred; (3) the court must enforce the promise to avoid injustice See “Moore” Burger, Inc. v. Phillips Petroleum Company, et al, 492 S.W.2d at 934, 1972 Tex. Lexis 282 More specifically, the Texas Supreme Court addressed the promissory estoppel exception to cases where the promise was to “sign a written agreement which itself complies with the Statute of Frauds. The Court in Cooper Petroleum Co. v. La Gloria Oil and Gas Co. 436 S.W.2d 889 (Tex. 1969) “where, “the promise was to sign a written guaranty, and a written agreement would have been enforceable”, the exception applies. Here Defendant Jones’ promise was to sign over title of the house to the Plaintiff immediately after closing. A closing date was set and then delayed and Plaintiff was asked to sign a one-month lease pending closing. Plaintiff’s presentation of the facts to come before the trier of fact will support the promissory estoppel exception applies to this claim for a gift of real estate. 4 Plaintiff would show that Defendant Donvaband must also be held liable for his participation in the fraudulent scheme he has perpetrated to assist Defendant Jones in breaching his promise that he would purchase the home at 8647 Timber Place, San Antonio, TX 78250 and then transfer title to Plaintiff. Defendant Donvaband, vice-president of real estate section of Defendant Jones’ corporations knew of the promise to transfer title to Plaintiff, following the purchase of the home by The Texas Commission on Human Rights Act (TCHRA) prohibits discrimination in employment based on sex and other protected characteristics. Plaintiff has alleged quid pro quo sexual harassment which is a form of discrimination. Plaintiff has properly plead all the elements of this discriminatory practice by Defendant Jones, President and CEO. Plaintiff can show that she was forced to submit to the unwelcomed sexual demands of Jones in order to keep her job. When Plaintiff refused, she was fired. During the sexual abuse by Defendant Jones, he was aware of the stress he was inflicting on Plaintiff and the medical care required by such damage. Plaintiff has been severely injured by this sexual discrimination and has plead for damages. C.Participatory Liability- Assisting or Encouraging by Other Defendants Defendant Peter Donbavand and Jason Kemp, CFO of FMP assisted Defendant Jones in conduct which they knew amounted to a commission of a tort or wrongful acts against the Plaintiff. Defendant Donvavand and Kemp acted with intent to assist Defendant Jones in his wrongful acts toward Plaintiff including the discriminatory practices perpetrated against Plaintiff more fully described in Petitioner’s Second Amended Defendant Donbavand and Kemp’s assistance to Defendant Jones and their own related conduct was a substantial factor in causing the discriminatory practices and in the breach of the promise Defendant Jones made to Plaintiff. Plaintiff has properly plead her claims against Defendants’ giving due notice as required to establish her cause of actions against Defendants. Plaintiff has established that the Defendants are barred by invoking the Statute of Frauds in this claim, as equitable estoppel applies to the facts of this claim. Plaintiff has properly plead the exception to the employment at will doctrine; sexual discrimination. All of the elements of the cause of action are support by facts that would be considered reasonable and believable by a trier of fact. The Defendants in this claim are liable to the Plaintiff by either participatory liability or by acting in concert with Defendant Jones to harm the Plaintiff. If after a review of the law and facts contained in Petitioner’s Second Amended Petition, Defendants fail to promptly withdraw their Motion, Plaintiff seeks attorney fees and costs as permitted by this Rule. 6 PRAYER Wherefore all premises considered Plaintiff prays that after notice and hearing this Court issue an Order denying Defendants’ Motion to Dismiss in all aspects and award to Plaintiff attorney fees and costs relating to the filing of the motion. Petitioner prays for all other and further relief to which she is entitled. LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net By: /s/ Olga Brown_________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff I do hereby certify that on the 28th day of January 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Response to Defendants’ 91a Motion to Dismiss and Request for Attorneys Fees was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN CAUSE NO. 2014-CI-16674 V. 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD MANAGEMENT PARTNERS, LLC, ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, INDIVIDUALLY BEFORE ME, the undersigned authority, a notary public in and for the State of Texas, personally appeared Cearth Faire, known to be the person whose name is subscribed to this affidavit and who after being duly sworn by me did on her oath depose and state the following, to-wit: 1 "My name is Cearth Faire. I am the Plaintiff in this matter. I am over the age of 18 and I am fully competent to make this Affidavit in all respects and the statements contained herein are within my personal knowledge and true and correct 2. While I was in the Dominican Republic, taking care of Mr. Jones' infant child, in my capacity as a personal assistant, during the period of his Bexar County divorce, Mr. Jones promised to buy me a house. Mr. Jones promised he would buy it in his name, and then transfer ownership to me at closing, 3. The house Mr. Jones promised me is the one I am currently living in at 8647 Timber PI, San Antonio, TX 78250 It was previously owned by Tara Kemp, the wife of one of his business partners, Jason Kemp The price of $120,000 00 was agreed to by the Kemps and Mr Jones. It was purchased for $120,000.00, In reliance of hiS promise to me, I moved into the house, made repairs, and incurred moving expenses 4. Immediately before he was to transfer ownership to me, Mr. Jones fired me . The promise to transfer the house was breached by him, with the help of Peter Donbavand, FMP's VP of the Real Estate and Business Division, and Jason Kemp, FMP's Co-Founder and CFO. I had been compelled to engage in sexual conduct with Allen Jones in order to keep my job 5 On August 30, 2014, 1 refused further sexual conduct with him, and I was fired. While I was employed by him and his companies, in addition to submitting to sexual conduct, I was also required to make arrangements to secure drugs and prostitutes for his personal needs. These employment requirements are illegal. Mr. Jones was asking me to perform illegal acts . When I refused, he fired me. Signature SWORN and SUBSCRIBED to before me on this --- day of January 2015 ASI ZI;1\ NotoRryAP e°olti:ciis M INlicA,JSioPtl W' My Commission Expires Notbry Public in and for State of Texas August 16, 2016 My commission expires: t(i) Appendix 18 FILED 1/28/2015 4:07:54 PM Donna Kay McKinney Bexar County District Clerk Accepted By: Monica Hernandez CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF’S SECOND AMENDED ORIGINAL PETITION Plaintiff, Cearth Faire, files this Second Amended Original Petition against defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners, LLC, ALL JONES, LLC, Allen J Jones, and Peter Donbavand, and alleges as follows: 1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil Procedure 190.4 and affirmatively pleads that this suit is not governed by the expedited-actions process in Texas Rule of Civil Procedure 169 because she may seek injunctive relief. Plaintiff has a pending Motion for a Level Three Docket Control Order, and the parties entered into a Rule 11 Agreement showing intent to enter into an Agreed Docket Control Order and setting this matter for Jury Trial November 2, 2. Plaintiff seeks monetary relief over $200,000.00 but not more than 3. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place, MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is represented by 5. Defendant ALL JONES, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and and has been served and is 6. Defendant Allen J Jones, is an individual who has been served and is 7. Defendant Peter Donbavand, is an individual has been served and is 8. The Court has subject-matter jurisdiction over the lawsuit because the amount in controversy exceeds this Court’s minimum jurisdictional requirements. 9. Venue is proper in Bexar County as all or a substantial part of the events or 10. Plaintiff Faire was an employee of Defendants, as well as a personal assistant to Defendant Jones. Plaintiff, in addition to working for Defendants’ businesses, also took care of Defendant Jones’ personal matters, including living in the Dominican Republic for approximately five months on a 24/7 basis assisting in his defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been 11. Defendant Jones, in recognition for her loyal and tireless services assumed the role of her benefactor. In his role as a benefactor Defendant Jones promised Plaintiff that he would buy a home and transfer ownership to Plaintiff, so she would never have worries about a residence. Defendant Jones developed a scheme for his purchase of the house that included telling other corporate officers that Plaintiff’s pay increase was for the house payments. Defendant Jones intended to hide his gift from the other Defendants named in this lawsuit. Defendants have a real estate department as part of their businesses, and therefore, Plaintiff was further inclined to believe his promise to purchase and transfer ownership. 12. Although Defendant Jones intended to disguise the gift of the residence from his business partners, nevertheless he authorized for the necessary real estate transactions to be initiated that would result in a purchase transaction and an immediate transfer of ownership. Plaintiff relied on Defendant Jones’ promise and she moved into the residence at 8647 Timber Place, San Antonio, Texas 78250. 13. Plaintiff incurred moving expenses as well as expenses in making repairs to the residence to make it habitable. The residence is still in need of significant repairs. An inspection was ordered by the defendants as further proof of Defendant Jones’ purchase with intention to make a gift. Further, in reliance that the home would be given to her, Plaintiff agreed to sign a one-month lease. 14. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent promotion based on meritorious work.. Defendant Jones has now conspired with the other defendants including Defendant Peter Donbavand to evict Plaintiff from the house she was promised. The wrongful eviction proceedings were abated, as the justice of the peace court lacks jurisdiction to rule on the petition for eviction. 15. Defendants continue to harass the Plaintiff by wrongfully repossessing her car. Plaintiff had clear title to her 2005 Mini cooper. Jones promised her an ambiguous payment plan, and in retaliation for claiming her rightful title to her house, he has deprived Plaintiff of a necessity of transportation to seek employment. During the repossession process, he terrorized her by sending strangers to ring her doorbell, all while he owns a million dollars worth of automobiles, and spends a great deal of 4 16. Plaintiff had an exemplary employment record with Defendants FMP and ALL JONES, LLC, and had immediately before the firing, been given a raise in pay and additional duties. Plaintiff was fired solely because Plaintiff refused to continue perform employment duties that were not in furtherance of the corporate business but to serve as a shield for Defendant Jones numerous illegal activities some including sexual harassment. Defendant Peter Donbavand, a business partner of Defendant Jones was aware of the employment violations occurring at the corporations and by non-action, condoned the wrongful conduct of Defendant Jones. 17. Plaintiff seeks actual damages as a result of the wrongful termination, which include, but are not limited to back pay from the date of retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and benefits including the repossession of her automobile lost as a result of her wrongful termination. 18. Plaintiff also seeks damages for past and future mental anguish as a result of Defendant Jones forcing her to choose between the illegal activities he was 19. Defendant Jones acted with malice toward Plaintiff in that Jones exhibited conscious indifference to consequences Plaintiff might suffer separate and apart from the damages suffered as a result of the wrongful termination. Defendant Jones and Defendant Donbavand have inflicted additional injuries by circulating malicious rumors about the Plaintiff, harassing the Plaintiff and other activities which affect her future employment. Plaintiff therefore seeks exemplary damages. COUNT 1-PROMISSORY ESTOPPEL as a CLAIM 20. On or about March 27, 2013, when Plaintiff Faire was temporarily living in the Dominican Republic at the request of Defendant Jones, taking care of Jones’ child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas. 21. It was reasonable for Plaintiff to rely on Defendant Jones’ promise to purchase a home and gift it to her based on Defendant Jones’ financial resources, including his ownership of one million dollars worth of cars, and extensive property real estate holdings in the United States, and in the Dominican Republic. 22. Defendant Jones promised the Plaintiff that he would execute a written agreement at closing, giving her full title and interest to the home. Defendant Jones further promised the closing would take place immediately upon the reaching of an agreement on the final price and other terms. A final purchase price was reached between Defendant Jones and his business partner Jason Kemp. All terms for the 23. Defendant Jones negotiated all the terms of the real estate purchase. Defendant Jones had reached an agreement with his business partner, Jason Kemp to purchase the house located at 8647 Timber Place San Antonio, Texas 78250 from Kemp’s wife, Tara Kemp. The real estate actions necessary for a closing were initiated. Defendant Donbavand ordered an inspection of the home in furtherance of a 6 24. Although there were no uncertainties regarding the purchase of the home by Defendant Jones for the Plaintiff, there was a delay in the closing. Plaintiff was asked to sign a one month lease pending the real estate closing. In signing the one-month lease, Defendant Jones promised he would sign the necessary documents to give Plaintiff full and complete ownership of the home in consideration for her loyal efforts in assisting Defendant Jones in the defense of his suit for divorce. 25. It now appears that Defendant Jones, acting in concert with Defendant Donbavand, who appeared in Justice of Peace court attempting to practice law without a. a false representation or concealment of material facts concerning the real estate transaction; b. made representation with knowledge, actual or constructive, of those facts; c. with the intention that it should be acted on; d. to a party without knowledge or the means of knowledge of those facts 26. Plaintiff contends the promise to complete the transaction (closing of the real estate) conveying title to Plaintiff is binding against Defendant Jones in order to avoid injustice. Plaintiff further contends equitable estoppel alleged above is sufficient to preclude the statute of fraud defense to this promise of a home to Plaintiff. 27. Plaintiff was an employee of Defendants FMP, ALL JONES and their subsidiaries, and her duties were to serve as a personal assistant to the Defendant Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self- supporting divorced woman with no financial resources other than her wages. Plaintiff also had an exemplary work history prior to working for Defendants. 28. On or about January 21, 2013 Defendant Jones made sexual advances toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical conduct of a sexual nature. Defendant Jones’s demands escalated and the mental abuse was so extreme that it prevented Plaintiff from defending herself. 29. Defendant Jones made it cleared to the Plaintiff that continued employment as well as other job benefits were conditioned on her acceptance of the 30. At the time of the harassment, Defendant Jones was the President and CEO of the Food Management Partners, a Texas LLC. At all times, Defendant Jones held himself out to Plaintiff and to the public, as a very powerful business man, and owner of 150 businesses. Defendant Jones instilled fear of his power on Plaintiff. There was no recourse available to the Plaintiff to complain. 31. Plaintiff was harmed by the physical sexual conduct perpetrated against her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by Defendant Jones sexual harassment. When Plaintiff was well enough to, she refused to further submit to Defendant Jones’ inappropriate requests she was fired on or 8 32. Plaintiff seeks compensatory damages for lost wages, lost benefits and future employment opportunities based on her traumatic experience at the hand of 33. Plaintiff seeks exemplary damages based on Defendant Jones’s history of sexual harassment of others and including the purchase of a female for his own 34. Further, Plaintiff seeks exemplary damages against all Defendants, as her injury resulted from Defendants’ malice, which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code section 41.003(a). 35. Defendant Peter Donbavand and Jason Kemp, CFO of FMP assisted Defendant Jones in conduct which they knew amounted to a commission of a tort or 36. Defendant Donbavand and Kemp acted with intent to assist Defendant Jones in his wrongful acts toward Plaintiff including the discriminatory practices perpetrated against Plaintiff more fully described in Petitioner’s Second Amended 37. Defendant Donbavand and Kemp’s assistance to Defendant Jones and their own related conduct was a substantial factor in causing the discriminatory practices and in the breach of the promise Defendant Jones made to Plaintiff. JURY DEMAND 38. Plaintiff has demanded a jury trial and tendered the appropriate fee with her 39. All conditions precedent to plaintiff’s claim for relief have been performed or 40. Plaintiff objects to the referral of this case to an associate judge for hearing a For these reasons, plaintiff asks that defendant be cited to appear and answer and, on final trial, that plaintiff be awarded a judgment against defendant for the b. Economic and non-economic damages including, but not limited to back pay, front pay, severance pay, specific performance regarding the gift purchase of a home (or its monetary equivalent). LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net By: /s/ Olga Brown_________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff I do hereby certify that on the 28th day of January 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Second Amended Original Petition was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN FILED 1/14/2015 2:03:54 PM Donna Kay McKinney EXHIBIT A Bexar County District Clerk Accepted By: Bonnie Banks Appendix 19 Appendix 20 NO._____________________________ IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS SITTING AT SAN ANTONIO CEARTH FAIRE, Petitioner, v. FMP SA MANAGEMENT GROUP, LLC d/b/a FOOD MANAGEMENT PARTNERS, LLC, ALL JONES, LLC ALLEN J. JONES, INDIVIDUALLY, PETER DONBAVAND, INDIVIDUALLY, AND JASON KEMP, INDIVIDUALLY, Respondents. Cause No. 2014-CI-16674 from the 150th District Court, Bexar County, Texas Hon . Antonia Arteaga, presiding Petition for Leave to File Interlocutory Appeal Pursuant to Tex. R. App. P. 28.3 and Tex. Civ. Prac. & Rem. Code 51.014(f) Olga Brown Jeff Small State Bar No. 03155500 State Bar No. 00793027 LAW OFFICE OF OLGA BROWN LAW OFFICE OF JEFF SMALL 111 Soledad, Suite 1725 12451 Starcrest, Suite 100 San Antonio, Texas 78205 San Antonio, Texas 78216 210.226.1550/210.226.1884 210.496.0611/f: 210.579.1399 argyle2@sbcglobal.net jdslaw@satx.rr.com TABLE OF CONTENTS INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi Issue No. 1: Does permitting an interlocutory appeal now serve the best interests of judicial economy thereby eliminating the risk of two trials by deciding the propriety of the trial court’s Rule of Civil Procedure 91a dismissal of several of Petitioner’s causes of action before the remaining issues go to trial? . . . . . . . . . . . . . . . . . . vi Issue No. 2: Is dismissal under Rule 91a proper when Petitioner’s causes of action state a recognized cause of action and her factual pleadings do not show as a matter of law that she cannot prevail? . . . . . . . . . . . . . . . . . . . . . . vi INFORMATION COMPLYING WITH RULE 25.1(d). . . . . . . . . . . . . . . . . . vi STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REASONS TO GRANT PERMISSION FOR AN INTERLOCUTORY APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The trial court erred by dismissing Petitioner’s causes of action because each states a recognized cause of action in Texas and none of her factual pleadings affirmatively negate her entitlement to relief... . . . . . . . . . 5 B. There is “no basis in law” only if the pleading fails to state a recognized cause of action.. . . . . . . . . . . . . . . . . . . . . . . . . . 7 C. A pleading has “no basis in fact” only if no reasonable person could believe the facts pleaded.. . . . . . . . . . . . . . . . 7 ii CONCLUSION and PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 VERIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 iii INDEX OF AUTHORITIES Cases Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Drake v. Walker, No. 05-14-0355-CV, 2015 Tex. App. LEXIS 4732 (Tex. App.— Dallas May 8, 2015, no pet. h.). . . . . . . . . . . . . . . . . . . . . 5 GoDaddy.com, LLC v. Hollie Toups , 429 S.W.3d 752 (Tex. App.— Beaumont 2014, pet. denied) . . . . . . . 8 Gulley v. State Farm Lloyds, 350 S.W.3d 204 (Tex. App.-- San Antonio 2011, no pet.) .. . . . . . . . . 4 Scott v. Gallagher, 209 S.W.3d 262 (Tex. App.— Houston [1st Dist.] 2006, no pet.).. . . . 7 Wooley v. Schaffer, 447 S.W.3d 71 (Tex. App.— Houston [14th Dist.] 2014, pet. filed).. . 5 Rules TEX. R. APP. P. 25.1(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi TEX. R. APP. P. 28.3(k). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi TEX. R. CIV. P. 47 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 TEX. R. CIV. P. 91a.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8 TEX. R. CIV. P. 91a.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 iv TEX. R. CIV. P. 91a.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 TEX. R. CIV. P. 91a.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 TEX. R. CIV. P. 91a, cmt. to 2013 change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Other Authorities David E. Chamberlain and W. Bradley Parker, Rule 91a Motions to Dismiss, in State Bar of Texas Ultimate Motions Practice Course (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 978, 77th Leg., R.S. (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 4 v ISSUES PRESENTED Issue No. 1: Does permitting an interlocutory appeal now serve the best interests of judicial economy thereby eliminating the risk of two trials by deciding the propriety of the trial court’s Rule of Civil Procedure 91a dismissal of several of Petitioner’s causes of action before the remaining issues go to trial? Issue No. 2: Is dismissal under Rule 91a proper when Petitioner’s causes of action state a recognized cause of action and her factual pleadings do not show as a matter of law that she cannot prevail? INFORMATION COMPLYING WITH RULE 25.1(d) Plaintiff/Appellant Cearth Faire desires to pursue an interlocutory appeal in accordance with the provisions of Texas Rule of Appellate Procedure 28.3 and the Texas Civil Practice and Remedies Code section 51.014(f). The order being appealed dated May 6, 2015 (ORDER GRANTING DEFENDANTS’ FIRST AMENDED RULE 91A PARTIAL MOTION TO DISMISS (App’x Tab 1)), overruled Ms. Faire’s Motion for Reconsideration/New Trial in cause number 2014-CI- 16674, which dismissed certain of Ms. Faire’s causes of action pursuant to Rule 91a. If the Court grants leave to file an interlocutory appeal pursuant to TEX. R. APP. P. 28.3(k), that appeal is treated as accelerated in accordance with Rule 26.1(b). vi STATEMENT OF FACTS The facts stated herein are those as alleged in Plaintiff’s Fourth Amended Petition (App’x Tab 3). Defendants/ Appellants FMP SA Management Group, LLC, d/b/a Food Management Partners, LLC and All Jones, LLC, all of which are owned and controlled by Defendant Allen Jones, employed Plaintiff/Appellant Faire. Defendants Peter Donbavand and Jason Kemp are business partners of Allen Jones. In addition to her employment for the corporate defendants, Ms. Faire also served as Defendant/Appellant Allen J. Jones personal assistant. As his personal assistant, Ms. Faire took care of Allen Jones' personal matters. She lived in the Dominican Republic caring for Jones’ children on a 24/7 basis for approximately five months, also assisting administratively in his defense in Jones’ divorce proceedings pending in Bexar County, Texas during 2013 and 2014. In recognition for her loyal and tireless employment services to him, Jones gifted Ms. Faire the house at 8647 Timber Place in San Antonio. Jones negotiated with Defendant Jason Kemp, who works for Jones, and purchased the home at 8647 Timber Pl, San Antonio, TX 78250, from Kemp’s wife who was the deeded owner of that property. It was this property that Jones gifted 1 to Ms. Faire. Jones instructed another employee, Peter Donbavand, in his individual capacity and outside the scope of corporate business, to prepare the necessary documents so Jones could finalize the gift to Ms. Faire. Jones later retaliated against Ms. Faire by denying he had gifted the real estate to her. Both defendants Donbavand and Kemp, while business partners of Jones and employees and agents of FMP, routinely served Jones as personal aides, taking and executing orders from Jones outside the course and scope of their duties with the corporate entities to meet his personal demands without regard for whether those orders served the corporate interests. While Donbavand completed the necessary transfer documents, Jones insisted that Ms. Faire move into the house, which she did in reliance on his gift of the house to her. She made valuable and permanent improvements to the house in reliance on Defendant Jones’ promise to her. She also incurred moving expenses, as well as expenses in making permanent improvements to the residence to make it habitable. When Ms. Faire refused Jones’ sexual advances, he fired her despite having recently promoted her, given her additional duties, and increased her pay based on meritorious work. Jones then ordered Donbavand and Jason Kemp to evict Ms. Faire from the house Jones had given her. Jones also 2 reneged on other promises he had made to Ms. Faire. Ms. Faire sued for sexual harassment, conspiracy, promissory estoppel, and fraud. Defendants filed a Rule 91a motion and an amended motion to dismiss (DEFENDANTS’ FIRST AMENDED RULE 91A PARTIAL MOTION TO DISMISS (App’x Tab 2)). After Defendants filed their amended motion to dismiss, but before the hearing at which the causes of action were dismissed, Ms. Faire amended her petition to drop the claim for promissory estoppel and added a claim for an oral gift of real estate. See PLAINTIFF’S FOURTH AMENDED PETITION (App’x Tab 3).Defendants filed no further amended pleadings until after the motion to dismiss had been heard, belatedly asking for the opportunity to present evidence of reasonable and necessary attorneys’ fees. The trial court overruled Ms. Faire’s motion to reconsider the dismissal of her causes of action on May 6, 2015. ORDER GRANTING DEFENDANTS’ FIRST AMENDED RULE 91A PARTIAL MOTION TO DISMISS DTD MAY 6, 2015 (App’x Tab 1);ORDER GRANTING DEFENDANTS’ FIRST AMENDED RULE 91A PARTIAL MOTION TO DISMISS dtd April 9, 2015 (App’x Tab 2). 3 REASONS TO GRANT PERMISSION FOR AN INTERLOCUTORY APPEAL This Court should grant leave for an interlocutory appeal because Rule 91a is relatively new1 and, thus, there is not a great deal of case law to guide its interpretation. Permitting an interlocutory appeal at this point in the case will serve the interests of judicial economy and advance the ultimate termination of the litigation in that the question at hand involves a controlling question of law. This is so because an appeal at this juncture will eliminate the potential for two trials if the trial court’s Rule 91a dismissal of several of Plaintiff/Appellant’s causes of action was, indeed, erroneous. See Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207-08 (Tex. App.— San Antonio 2011, no pet.) (citing House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 978, 77th Leg., R.S. (2001) (explaining that the addition of subsection (d) would promote judicial efficiency by “allowing the trial court to certify a question for appeal” when “the trial court rules on an issue that is pivotal in a case but about which there is legitimate disagreement”)). 1 Adopted by the Supreme Court of Texas February 12, 2013. See TEX. R. CIV. P. 91a, cmt. to 2013 change 4 ARGUMENT The trial court erred by dismissing Petitioner’s causes of action because each states a recognized cause of action in Texas and none of her factual pleadings affirmatively negate her entitlement to relief. A trial court’s ruling on a Rule 91a motion to dismiss — whether there is a basis in law and a basis in fact — is reviewed de novo; the pleadings are construed liberally in favor of the plaintiff, looking to the pleader’s intent; and the factual allegations in the pleadings are accepted as true. Wooley v. Schaffer, 447 S.W.3d 71, 74 (Tex. App.— Houston [14th Dist.] 2014, pet. filed) (analogizing 91a dismissal motion to plea to the jurisdiction); see Drake v. Walker, No. 05-14-0355-CV, 2015 Tex. App. LEXIS 4732, at *7 (Tex. App.— Dallas May 8, 2015, no pet. h.). Rule 91a permits the dismissal of only those causes of action that have “no basis in law or fact.” TEX. R. CIV. P. 91a.1. “A cause of action has no basis in law if the allegations, taken as true, together with the inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.” TEX. R. CIV. P. 91a.1. 5 Rule 91a specifically requires that a motion to dismiss address each challenged cause of action and must state specifically the reason the cause of action has no basis in law, no basis in fact, or both. TEX. R. CIV. P. 91a.2. The court may not rule on a cause of action that has been non-suited or is not included in the plaintiff's latest amended petition. TEX. R. CIV. P. 91a.2, 91a.5. Further, the rule explicitly states that in determining a Rule 91a motion the trial court is to consider only the pleadings and may NOT consider evidence. TEX. R. CIV. P. 91a.6. The trial court’s dismissal here violates each of those tenets. Compare DEFENDANTS’ FIRST AMENDED RULE 91A PARTIAL MOTION TO DISMISS (App’x Tab 2), with PLAINTIFF’S FOURTH AMENDED ORIGINAL PETITION (App’x Tab 3). Because the trial court dismissed issues already amended out of the pleadings at the time of the hearing and Defendants orally requested and were granted dismissal of a cause of action not addressed in their amended motion (See App’x Tab 1 & App’x Tab 2) , there is a legitimate question in this case whether the trial court's dismissal of Petitioner’s causes of action was proper. Thus, this Court should grant permission for an interlocutory appeal of that dismissal. 6 B. There is “no basis in law” only if the pleading fails to state a recognized cause of action. Texas “[c]ourts are likely to dismiss causes of action under Rule 91a in three circumstances: (1) when a cause of action is not recognized by Texas law; (2) when the pleading alleges facts that negate a cause of action; and (3) when pleading exhibits, attached pursuant to Rule 59, demonstrate that claimant is not entitled to the relief sought as a matter of law.” David E. Chamberlain and ULTIMATE MOTIONS PRACTICE COURSE, at § II B.1., at 4 (2013) (App’x Tab 4). The question presented by Rule 91a is “relatively straightforward” — Do the pleadings state a cause of action that would entitle the plaintiff to relief? Scott v. Gallagher, 209 S.W.3d 262, 267 (Tex. App.— Houston [1st Dist.] 2006, no pet.) (“no arguable basis in law” under Civil Practice and Remedies Code Chapter 14 means a claim that is “indisputably meritless”). Putting it differently, the question is “whether, as a matter of law, [the petition] state[s] a cause of action that would authorize relief.” Id. Thus, giving the pleader the benefit of the doubt, if a plaintiff’s petition arguably states a cause of action recognized in the state of Texas, dismissing it under Rule 91a is error. Id. 7 C. A pleading has “no basis in fact” only if no reasonable person could believe the facts pleaded. When analyzing a plaintiff’s petition as to whether it has a basis in fact, a court may go no further than ascertaining whether a “reasonable person could believe the facts pleaded.” TEX. R. CIV. P. 91a.1. A claim may be dismissed for having “no basis in fact” when, taken as true as the pleaded facts must be, they are legally insufficient to support plaintiff’s claim. See City of Keller v. Wilson, 168 S.W.3d 802, 811- 17 (Tex. 2005). If the facts pleaded satisfy Texas’s notice pleading requirements, the claim is not subject to dismissal under Rule 91a. See TEX. R. CIV. P. 47 (a) (pleading satisfies notice pleading requirements if it gives “fair notice of the claim involved”). Using the Federal Rule of Civil Procedure 12(b)(6) for guidance, the Beaumont Court of Appeals observed that a claim will survive dismissal if the pleader alleges “enough facts to state a claim to relief that is plausible on its face.” GoDaddy.com, LLC v. Hollie Toups , 429 S.W.3d 752, 754 (Tex. App.— Beaumont 2014, pet. denied) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). CONCLUSION and PRAYER Judicial efficiency will be served here by granting leave for an interlocutory appeal rather than permitting a trial to go forward on the 8 remaining issues in this cause only to have the issue of the propriety of the 91a dismissal then come before this court and be remanded back for another trial if the 91a dismissal is determined to be erroneous. The interests of all concerned would be better served by abating the trial court proceedings, permitting the interlocutory appeal to go forward, and then reinstating the trial court proceedings after a determination has been made by this Court on the 91a issue. The trial court dismissed a cause of action that had been amended out of Petitioner’s pleadings before the hearing on the motion to dismiss; dismissed a cause of action not addressed in Respondents’ Amended Motion to Dismiss, and delved into evidentiary details rather than ruling strictly on the pleadings as required by Rule 91a. All of these actions are error requiring reversal of the trial court’s dismissal. It is better that the reversal come now rather than after a trial on the remaining issues and then a remand for another trial. Accordingly, Petitioner respectfully requests that she be permitted to pursue an interlocutory appeal of the trial court’s dismissal of her causes of action. 9 -------------------------·--------------------------------~~~~-~-, 1s1JeffS~ Olga Brown Jeff Small State Bar No, 03155500 State Bar No. 00793027 LAW OFFICE OF OLGA BROWN Law Office of Jeff Small 111 Soledad, Suite 1725 12451 Starcrest Dr., Suite 103 San Antonio, Texas 78205 San Antonio, TX 78216.2988 210 .,226.1550/ 210,,226,,1884 210.496.0611/F: 210 579.1399 argyle2@sbcglobal.net jdslaw@satx.rr.com Counsel for Petitioner Cearth Faire Before me, the undersigned notary, on this day personally appeared Olga Brown, the affiant, a person whose identity is known to me. After I administered an oath, affiant testified as follows: L "My name is Olga Brown,, I am over 18 years of age, of sound mind, and capable of making this verification. the facts in this verification are within my personal knowledge and are true and correct 2. I am one of the attorneys for petitioner. All the documents included with this petition for permission to file an interlocutory appeal are true copies." .~~;~''f'f::•, {R?.:Ji::J~•\ ;~~~·.·~i RAMONA .J, FLORES Notary Public, State of Texas My Commission Expires ~ ~~ fu ~,~~'Of\\~ August 16, 2016 '"""" Olga Bro Sworn to and subscribed to before me by Olga Brown on MayJOtf;2015, Notary ublic, State of Texas JO r I CERTIFICATE OF COMPLIANCE In compliance with Tex R. App. P 9.4(i)(3), I certify that the number of words in this document, excluding those matters list in Rule 9.4(i)(1), which was prepared in WordPerfect X6 using 14-point Book Antiqua, is 1893 words. I certify that a true and correct copy of the foregoing Petition for Leave to File Interlocutory Appeal Pursuant to Tex. R. App. P. 28.3 and Tex. Civ. Prac. & Rem. Code 51.014(f) has been served on counsel of record/interested parties as shown below in accordance with the Rules of Civil Procedure on May 20, 2015. Justin Barbour StateBarNo. 24055142 SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 Phone: (210) 447-8033 Fax: (210) 447-8036 jbarbour@sr-llp.com /S/ Jeff Small 11 APPENDIX Order Granting Defendants’ First Amended Rule 91a. . . . . . . . . . . . . . . Tab 1 Partial Motion to dismiss dtd May 6, 2015 (overruling Mtn for New Trial/Reconsideration) Order Granting Defendants’ First Amended Rule 91a. . . . . . . . . . . . . . . Tab 2 Partial Motion to Dismiss dtd April 9, 2015 Defendants’ First Amended Rule 91a Partial Motion to Dismiss. . . . . . Tab 3 Plaintiff’s Fourth Amended Original Petition. . . . . . . . . . . . . . . . . . . . . . Tab 4 Plaintiff’s Motion for New Trial/Reconsideration. . . . . . . . . . . . . . . . . . Tab 5 Article, David E. Chamberlain and W. Bradley Parker, . . . . . . . . . . . . . Tab 6 Rule 91a Motions to Dismiss, in STATE BAR OF TEXAS ULTIMATE MOTIONS PRACTICE COURSE (2013) Reporter’s Record from April 9, 2015 Dismissal Hearing. . . . . . . . . . . . Tab 7 Reporter’s Record from May 6, 2015 Reconsideration Hearing.. . . . . . Tab 8 12 Tab 1 CAUSE NO. 2014-CI-16674 CEARTH FAIRE, § IN IHEDISTRICTCOURI § Plaintiff, § § v. § § FMP SA MANAGEMENT GROUP, LLC § lSOIH JUDICIAL DISTRICT d/b/a FOOD MANAGEMENT PARTNERS, § LLC, ALL JONES, LLC, ALLEN J.. JONES § INDIVIDUALLY, AND PETER § DONBAV AND, INDIVIDUALLY § § Defendants.. § BEXAR COUNTY, TEXAS ORDER GRANTlNG DEFENDANTS' FIRST AMENDED RULE 9la PaRTIAL MOTION TO DISMISS On this date, the Co1Ut considered Plaintiff's Motion for Reconsideration/New Trial. After cal'eful consideration of the Motion, the response thereto, arguments of cowisel, and the relevant law, the CoUit is of the opinion that the Motion should be DENIED. II IS IHEREFORE ORDERED that Plaintiff's Motion for Reconsideration/New Idal is DENIED . .. SIGNED on this Q,-t{?. . . day of....Jll~~~~ 2015 - ,k,~C2 PRESIDINGJUDGE AGREED AS IO FORM: Counsel for Plaintiff Counsel for Defendant Received Time May 6 4:48PM Tab 2 CAUSE NO . 2014-CI·-16674 CEARTH FAIRE, § IN THE DISTRICT COURT § Plaintiff, § § v. § § FMP SA MANAGEMENT GROUP, LLC § 150TH JUDICIAL DISTRICT d/b/a FOOD MANAGEMENT PARTNERS, § LLC, ALL JONES, LLC, ALLEN J. JONES § INDIVIDUALLY, AND PETER § DONBAVAND, INDIVIDUALLY § § Defendants.. § BEXAR COUNTY, TEXAS ORDER GRANTING DEFENDANTS' FIRST AMENDED RULE 9Ia PARTIAL MOTION TO DISMISS On this date, the Court considered Defendants' First Amended Rule 9la Partial Motion to Dismiss After careful consideration of the Motion, the response thereto, arguments of counsel, and the relevant law, the Court is of the opinion that the Motion should be GRANTED II IS THEREFORE ORDERED that Defendants' First Amended Rule 9la Partial Motion to Dismiss is GRANTED. It is further ORDERED that Plain~ifrs claims for promissory estoppel, "oral gift" of real estate, and conspiracy are DISMISSED WITH PREJUDICE, and ~'\ 'ficfc11dmits arc awmded tlteir 1easmrabte and necessary attorney's tees incurred With respect t(J' ~ AGREED AS IO FORM: 1 ORDER GRANTING DEFENDANTS' FIRST A.MENDED RULE 91a PARTIAL MOTION IO DISMtss ' Tab3 Feb. 3 2015 9:47AM No 7814 P 3 CEARIH FAIRE, § IN THE DISTRICI COURT § Plaintiff, § § ~ § § FMP SA MANAGEMENT GROUP, LLC § 150IHJUDICIALDISTRICT d/b/aFOOD MANAGEMENT PARTNERS, § LLC, ALL JONES, LLC, Al,LEN J. JONES § INDIVIDUAlLY, AND PEIER § DONBAVAND, INDIVIDUALLY § § Defendants.. § BEXAR COUNTY, TEXAS ____ _________ ,..._.,.., DEFENDANTS' FIRST A.M}i;NDED RULE 91a PARIIAL MOTION TO DISMISS For their First Amended Partial Motion to Dismiss pursuant to Texas Rule of Civil Procedure 9la, Defendants FMP SA Management G:roup, LLC d/b/aFood Management Partners, All Jones, LLC, Allen J Jones, and Peter Donbavand respectfully show the following: Plaintiff Cearth Faire filed her 01iginal Petition in the 150th District Comt, Bexar County, Texas, on October 21, 2014.. Ex . I, PL's Orig. Pet.. Defendants FMP SA Mmagement Group, LLC d/b/a FMP Partners ("FMP"), All Jones, LLC ("All Jones"), and Peter Donbavand ("Donbavand") were served with the Original P~tition on November 7, 2014 Defendant Allen J . Jones ("Jones") was served on November 20, 2014.. All Defendants timely filed their General Denial and Defenses on November 26, 2014.. Ex., 2, Def's Answer & Defenses., Plaintiff filed her First Amended Petition on December S, 2014 . Ex., 3, PL's lstAm . Pet. Plaintiff's First Amended Petition alleged three claims for relief: (!)promissory estoppel regarding an alleged promise to purchase a home for her, (2) "wrongful termination," and (3) conversion of certain property allegedly belonging to her, Received Time Feb. 3. 9:44AM Feo 3 2015 9:48AM No 7814 P 4 On December 22, 2015-well within the 60 day pe!iod prescribed by Rule 9la.3(a)- Defendants filed their Rule 91 a Motion to Dismiss. Through that Motion to Dismiss, Defendants asked the Cowt to dismiss (1) Plaintiff's wrongful termination claim as to all Defendants, (2) Plaintiff's promissory estoppel claim as to all Defendants, (3) all remaining claims against Defendant Donbavand and (4) the conversion and wrongful termination claims against Defendant Jones . In response to Defendants' Rule 9la Partial Motion to Dismiss, Plaintiff filed her Second and Third Amended Petitions on fanuary 28 and 30, 2015, respectively.. Ex . 4, 2d Am. Pet; Ex. 5, 3d Am . Pet Through these pleading amendments, Plaintiff has substantially revised the allegations pertaining to her promissory estoppel claim, while dropping her claims of "wrongful termination" and conversion Meanwhile, Plaintiff's Third Amended Petition has added new, previously unasserted claims of sexual harassment, conspiracy, and fraud . Defendants' Rule 9la Piutial Motion to Dismiss is presently set fox heiuing on Februiuy 4, 2015. In light of Plaintiff's Third Amended Petition, which amends Plaintiff's promissory estoppel claim, previously challenged by Defendants, and adds new claims of sexual harassment, conspiracy, and fraud, Defendants now file their Amended Motion to Dismiss pursuant to Rule 91a.5(b}. Defendants specifically move to dismiss Plaintiff's claim for promissory estoppel, as her amended pleadings do not establish a legal exception to the statute of frauds, which bars this claim as a matter of law:. Defendants ftuther move to dismiss Plaintiff's claim of conspiracy, which is barred by Plaintiff's Chapter 21 's exclusive remedial framework Texas Rule of Civil Procedwe 9la requires dismissal of claims that have "no basis in law or fact" TEX. R. Crv. P 91a.J. A cause of action has no basis in law "if the allegations, taken as r 2 Received Time Feb 3 9:44AM Feb 3 2015 9:48AM No 7814 P 5 true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. " Id. Meanwhile, a cause of action has no basis in fact "if no reasonable person could believe the facts pleaded." Id ill.. ARGUMENT &AUJHORUIES A. P/a1iztijj Fails to Show Exception to Statute of Frauds, Requiring Dismissal of Promissory Estoppel Claim. Faire asserts a claim for prnmissory estoppel based on Defendant Jones's allegedly "promis[ing] Plaintiflthat he would buy a home and transfer ownership to" her. Ex. 5, PL's 3d Am Pet at ~ 1L Defendant's First Rule 91 a Partial Motion to Dismiss generally outlines the manner in which the statute of frauds bars this promissory estoppel claim; however; in brief; a contract for the sale or purchase of real property, 01 one affecting an interest in real propexty, is subject to the statute of frauds. Old Tzn RoofSteakhouse, LLC v. Haskett, No . 04-12-00363, 2013 WL 1148921, at *7 (Tex . App . -San Antonio, Mar. 20, 2013, no pet) (mem. op) (citing Tex. Bus . & Comm . Code§ 26.0l(a)(4)). As such, any alleged promise to purchase, sell, or iransfer a real property interest, such as a promise to transfer home owne1ship in this case, must satisfy the statuto1y prerequisites of the statute of frauds.. See, e.g, Fontenot v.. Ham.IJ; No . 11-10-00016, at *3 (Tex. App . -Eastland Aug. 31, 2011, pet. denied) ("agreement is su~ject to the Statute of Frauds because it relates to the conveyance of real property interests ......"). In such cases, Texas law specifically requires that: A promise or agreement [su~ject to the statute of frauds] is not enforceable unless the promise or agreement, or a memorandum of it, is (1) in wxiting and (2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him. TEx. Bus . &COMM. CODE§ 26.0l(a).. L Received Time Feb 3. 9:44AM Feb 3 2015 9:48AM No 7814 P 6 fo this case, Plafutiff's First Amended Petition conceded that Defendant .Jones's alleged promise to "buy her a house" was made 01ally and, thus, could be subject to the statute of frauds See Ex. 3, Pl.'s 1st Am. Pet. at if 28. To avoid dismissal of her promissoxy estoppel claim, Plaintiff has now amended her pleading to allege that the statute of frauds is inapplicable because "Defendant Jones promised he would sign the necessary documents to give Plaintiff full and complete ownership of the home . .,," Id. at if 24 . Plaintiff's amended promissory estoppel claim is nonetheless deficient, as a matter of law, and shouid be dismissed. ~laintiffbaldly alleges "Defendant Jones promised he would sign the necessary documents to give" Plaintiff ownership of the home . Ex. 5, PL's 3d Am . Pet. at if 24. However, promissory estoppel claims only avoid "the traditional Statute of Frauds when the alleged 01al promise is to sign an existing document that satisfies with the Statute of Frauds." Bank of Tex, NA. v. Gaubert, 286 S W..3d 546, 553 (Tex . App . -Dal!as 2009, pet denied) (emphasis in original). Thus, even if Plaintift's allegations were accepted as true, she has failed to allege Defondant Jones promised to sign existing documents capable of transferdng owuexship of the property at issue, nor does she specifically allege that such documents had in fact in been drafted at the time the promise was allegedly made.. In cases with facts and allegations like this one, courts have held the promissory estoppel exception to the statute of frauds is inapplicable and dismissed such claims with prejudice.. See id., see also Coastal Corp.. v. Atl Richfield Co, 852 S. W.2d 714, 718 (Tex. App.-Co1pus Christi, no writ) ("Promissory estoppel is applied when a party promises to sign an existing written contract that would satisfy the statute of frauds, but for the lack of a signature.. When a document remains to be prepared, as in this case, all of the te1ms must ultimately be agreed to in writing") (emphasis in original).. Because Plaintiff's Received Time Feb 3 9:44AM Feb, 3 2015 9:49AM No 7814 P 7 promisso1y estoppel allegations, accepted as true, do not establish this exception to the stature of frauds, Plaintiff's claim must be dismissed with prejudice,, B, Plaintiff's Conspiracy Claim Barred by Intra-Corporate Immunity Doctrine., l'laintiffs Second and Third Amended Petitions allege, for the first time in this matter, a conspiracy claim against Defendant Donbavand and Jones, This claim specifically alleges Donbavand "acted with intent to assist" other Defendants in "wrongful acts toward Plaintiff; including the discriminatory practices perpetrated,'' Ex, 5, 3d Am, Pet at mf 35c37, Plaintiff's live pleading concedes that Donbavand is "a business partner of Defendant Jones," and that DefondantJones is President & CEO ofDefendantFMP, Id. at mf 16, 27, Plaintiff's conspiiacy claim is barred, as a matter of law, because it is alleged against Defendants Donbavand and Jones, who are both agents of Defendant FMP Indeed, by naming FMP as a Defendant in this lawsuit, Plaintiff has herself alleged that Ponbavand's and Jones's alleged acts were not made in their individual capacities but, instead, committed in the comse and scope of their agency with that corporate entity, ''Employees or agents of a pdncipal acting within the CO\U'Se and scope of their employment or agency relationship cannot enter mto a conspiracy with each other so long as they are not acting outside their capacity as an employee or agent , " Crouch v Trinque, 262 S,,W3d 417, 427 (Tex, App,,-Eastland 2008, no pet); see also Atl. Richfield Co v, Misty Prods,, Inc, 820 S,W,2d 414, 420-21 (Tex,, App-Houston [141h Dist.] 1991, writ denied) ("An employee or agent of the parent co1po1ation and an employee or agent of the wholly owned subsidiary , , . cannot conspire"),, Because Donbavand and Jones, both agents of FMP, were incapable, as a matter of law, from conspiring with one anothe1; Plaintiff's conspiracy claim should be dismissed with prejudice Received Time Feb 3 9:44AM Feb. 3 2015 9:49AM No 7814 p 8 C Plaintiff's Conspiracy Claim Barred by Exclusive Statutory Remedies:. 1. State Law Claims "Entwined" with Statutory Claims are Preempted as a Matter of Law. Chapter 21 of the Texas Labor Code is designed to be the exclusive means by which a party can vindicate her statutory rights as it pertains to unlawful harassment or discrimination. Wheatfall v. Potter, No. 07-1937, 2010 WL 2854284, "'4 (SD. Tex July 19, 2010) (federal anti- discrimination statutes, such as Title VII, 1 "provide the exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination").. As a result, a claimant's statutory harassment and discrimination claims are preemptive when the complained- of conduct is entwined with the underlying complained-of discriminatory or retaliatory conduct. See Mosley v. Wal-Mart Stores Tex. LLC, No 3:10-cv·-2305, 2011 WL 2893086, *3 (ND . Tex . July 20, 2011).. As the Mosley court explains, when: the gravamen of a plaintiff's case is fox sexual harassment, the plaintiff must proceed solely under a statutory claim unless there are additional facts, unrelated to sexual harassment, to support an independent to1t claim . .... allowing [tort] damages for a TCHRA violation would eclipse the Legislature's prescribed scheme. Id In other words, Texas state common law conspiracy claims are preempted whenever they are "entwined" with or arise from the same facts suppolting a statutory discrimination claim., In such situations, the preempted claims must be dismissed as a matter of course, with the claimant left solely to rely upon the exclusive, statutory remedial scheme provided by the Texas Legislature . 1 The express purpose of Chapter 21 is "to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 . ," De Sanriago" Wesi Tex. Comm Supervision & Corrections Dept., 203 S..W.3d 387, 391 (Tex. App. -EI Paso 2006, no pet}. "In light of tills express pmpose, we look ro analogous federal precedent when interpreting the Texas Act" Id Received Time Feb 3 9:44AM Feb 3 2015 9:50AM No. 7814 p 9 2.. Plaintiff's Conspitacy Claitn Relies on Satne Under·lying Facts as Statutory Chapter· 21 Claitns, RequiJ'ing Their Dismissal. In this case, Faire's conspiracy claim is not in any way factually distinct from he!' Chaptex 21 sexual hruassment and discrimination claims. Jn fact, Faixe's Third Amended Petition unambiguously alleges that her conspixacy claim is p1emised on the same factual allegations supporting hex Chapter 21 claims. See Ex. 5, 3d Am . Pet. at ifif 36-37 (alleging "Defendant Donbavand acted with intent to assist Defendant Jones in discrimmatory practices perpetrated against Plaintiff ..... "}. Stated differently; Faix e's Third Amended Petition is devoid of any specific factual allegations related specifically and only to her conspiracy claim. In the absence of specific, distinct factual allegations, this Court can only conclude that Faire's conspirncy claim is "entwined" with her statutory harnssment and discrimination retaliation claims . As a r·esult, Faire's statutory claixns provide her exclusive remedy, preempt her common law conspiracy claixn, and that claim should be dismissed with prejudice. IV:. CONCLUSION & PRAYER Plaintiff's claims in this mattex are, by and large, legally baseless and factually deficient. Fix st, Plaintiff's claims fol' promissoxy estoppel are baxred by the statute of frauds, as they are premised upon an oral and unwritten promise to effect the transfer of title to real estate. Furthermore, Plaintiff has failed to establish any exception to the Statute of Frauds, as a matter of law. Second, Plaintiff's conspiracy claim against Defendants is barred by the doctrine of intra- corporate immunity.. Finally, Plaintiff's conspiracy claim is barred by her exclusive statutory remedies afforded by Chapter 21.. As such, Defendants pray the Court dismiss these claims with prejudice pw·suant to Texas Rule of Civil Procedure 91a and for all other relief to which they may be entitled. r 7 Received Time Feb 3 9:44AM Feb 3 2015 9:50AM No 7814 P 10 Chi:istine E. R~inhard ' · · ·. State Bar No. 24013389 Shannon B. Schmoyer State B8l No. 17780250 Justin Bai:bour StateBarNo. 24055142 SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 Phone: (210) 447-8033 Fax: (210) 447-8036 creinhard@,sr-llp.com sschmoye1@,s1cllp.com jbarbour@sr-Ilp.com ATTORNEYS FOR DEFENDANTS FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD MANAGEMENT PARTNERS, LLC, ALL JONES, LLC, ALLEN J, JONES, AND PETER DONBAVAND The foregoing Amended Rule 9la Partial Motion to Dismiss is hereby set for hearing at 8::30 a..m. on Mru:ch 18, 2015 in the Presiding District Cou1t, Bexar County Courthouse, San Antonio, Texas. Signed on this _ _ _ day ofFebiuary, 2015. JUDGE PRESIDING Received Time Feb 3. 9:44AM Feb 3 2015 9:50AM No.7814 P 11 CERTlFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served via electronic service, facsimile and certified mail, return receipt requested, to: Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, Iexas 78205 (210) 226-1884 (facsimile) argyle2@sbcglobal.net on this 3xd day ofFebxwuy, 2015. /)~¥'.?..a~ (fe~' Christine E. Reinhard Rec ei ved Time Feb 3 9: 44AM Feb 3 2015 9:50AM No 7814 P 12 EXHIBIT 1 l Received Time Feb 3, 9:44AM ·: : :: .~· :. ' • . ~ '-~··-··-:~ :: :::": .. " ' : : "::·:~ : No 7814 . P 13 • :·~; :: .:..:.::: • < • ":; • FILED , 10121/2014 4:04:2j PM 4 CITS PPS W/JD • SAC2 Donn• Kay McKinney BeXar County District Clerf< Accepted By~ Marc Garcia CAUSE NO. 2014~!16674 CEARTH FAIRE § IN THE DISTRICT Plaintiff § § v. § § 15QTH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, Al LEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF'S ORIGINAL PETITION & REQUEST FOR DISCLOSURE Plaintiff, Cearth Faire, files this original petition and request for disclosure against defendants, Fmp Sa Management Group, LLC, D/B/A Food Management Partners, LLC, All Jones, LLC, Allen J Jones, and Peter Donbavand, and alleges as L Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil Prnced11re 190 4 and affirmatively pleads that this snit is not governed by the expedited-actions process in Texas Rule of Civil Procedure 169 because she may seek Injunctive relief.. 2.. Plaintiff seeks monetary relief over $200,000 . 00 but not more than $3,000,000 .. QO . r Received Time Feb. 3. 9:44AM '· ~· '··:' '. PARllES 3.. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place, San Antonio, TX 78250 . 4.. Defendant FMP SA MANAGEMENT GROUP, LL.C, D/B/A FOOD MANAGEMENT PARTNERS, LLC is an active lexas Lirnit.ed Liability Company conducting business in the State of Texas, and may be served by and through its registered agen,t for service of process, Peter Donbavand, 120 Chula Vista, Hollywood Park, Texas 78232 . 5.. Defendant ALL JONES, LLC is an active Texas Limited Liability Company conducting business in the Sfate of Texas, and may be served by and through its registered agent for service of process, Peter Donbavand, 120 Chula Vista, Hollywood Park, Texas 78232. 6.. Defendant Allen J Jones, is an individual whose address is 73 l.a Escalera, San Antonio, Texas 78261 7.. Defendant Peter Donbavand, is an individual whose business address is, Food Management Partners, l.L.G 120 Chula Vista, San Antonio, TX 78232 8. The Court has subject-matter jurisdictjon over the lawsuit because the amount in controversy exceeds this Court's minimum jurisdictional requirements. r Received Time Feb 3 9:44AM r VENUE 9.. Venue is proper in Bexar County as all or a substantial part of the events or 10.. Plaintiff Faire was an employee of Defendants, as well as a personal assistant to Defendant Jones. Plaintiff, in addition to working for Defendants' businesses, also took care of Defendant Jones' personal matters, including living in the Dominican Republic for over five months on a 24/7 basis assisting in his defense in a family law matter. 11.. Defendant Jones in recognition for her loyal and tireless services assumed the role of her benefactor .. In his role as a benefactor Defendant Jones promised Plaintiff that he would buy her a home so she would never have worries about a residence. Defendant Jones developed a scheme for the purchase of the house that included an authorization that Plaintiffs pay scale would be increased to cover the house payments . Defendant Jones intended to hide the gift from the other Defendants named in this lawsuit. Defendants have a real estate department as part ---,----------·---·--'--- ··------------ of their businesses. 12.. Although Defendant Jones intended to disguise the gift of the ~esidence from his business partners, nevertheless he authorized for the necessary real estate transactions to be initiated that would result in a purchase transaction with Piaintiff as the owner. Plaintiff relied on Defendant Jones' promise and she moved into the residence at 8647 Timber Place, San Antonio, Texas 78250 . Rec ei ved Time Feb 3 9: 44AM Feb.. 3. 201 5c 9: 52AM " .. "· ~ ! :·.·:' ::;; ~.: 13.. Plalntiff incurred moving expenses as well as expenses in making repairs to the residence to make it habitable. The residence is still in need of significant repairs . An inspectisin was ordered by the defendants as further proof of Defendant Jones' promise of the gift Further, in reliance that the home would be given to her, Plaintiff agreed to sign a one-month lease . 14.. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent promotion based on meritorious work .. Defendant Jones has also conspired with the other defendants including Defendant Peter Donabavand to evict Plaintiff from the house she was promised.. The wrongful eviction proceedings are currently pending in justice of the peace court 15. Defendants continue to harass the Plaintiff although they have been put on notice that question of title is so integrally linked to the issue of possession, that the justice court is without jurisdiction over the matter . The title to the property is one of the facts that give rise to this lawsuit. Plaintiff suffers from mental anguish as a result of the conduct of Defendant Jones and the other defendants who have ·conspired with Defendant Jones . --·--·-.------- ,............ Count 1 Promissory Estoppal as a Claim 16.. Defendant Jones promised the Plaintiff that he would purchase a residence for her. He promised that he would buy the home owned by another partner. Received Time Feb 3 9:44AM --,,,-_Feb 3. 2015_ 9: 5 AM :" .. ~.' ' ,. :: ,•·' '. "' ·~ : ·:·:: :~': ;:. '}'::;::' ··,.~~ ~: '· : . : '··~ The financing of the purchase was designed so as to be disguised as follows: Plaintiff was to receive and did rt".ceive a raise to cover the monthly payments Defendant Jones also promised Plaintiff lifetime employment. 17.. All the necessary real estate documents weie ordered by Defendant 18.. Plaintiff relied on Defendant Jones' promise because the nature and subject of the promise was reasonable in the context of the relationship betvveen the Plaintiff and Defendant Jones. Plaintiff's reliance on the promise was also reasonable and substantial, and she moved into the residence incurring moving and repair expenses . 19 Defendant Jones knew or reasonably should have known, that Plaintiff would rely on Defendant's promise Injustice to Plaintiff can be avoided solely if Defendant's promise is enforced . Plaintiffs reliance on Defendant Jones' promise (s) resulted in injury to Plaintiff which caused economic as well as non-economic damages . Plaintiff seeks damages within the jurisdictional limits of the court. ---Lo:- l"'urthet, Platntlff l!i entllll!d to recover reasonable and 1\eM§!;ary attOrney fees under Texas Civil Practice & Remedies Code section 38 . 001(8) because this suit is for promissory estoppeL 21 . On or about July 25, 2014 at the office of FMP SA Management Group, LLG, d/b/a Food Management Partners, LLC, hereinafter "FMP", 120 Chula Vista, San Antonio, Bexar County, Texas, Allen J .Jones, President of FMP, and benefactor of Received Time Feb. 3 9:44AM Fe b. 3 201 5 9... ,.53AM ,. 18 No. 78 1t.'. }. .,.:; . . '• :; : ... ~:: :;, ~·: .. ···;· .. ,: .. : ·.: :q : " ''·· "· :·:~ Plaintiff, made a promise to purchase a home for Plaintiff, located at 8647 Timber Place, San Antonio, Texas 78250, for Plaintiff, Cearth Faire, negotiating a temporary lease pending the purchase of the home for her 22. At the direction of Defendant Jones, Defendant Peter Donbavand, Vice President of Real Estate ~ Business Development for Defendant FMP, commenced the process of purchasing the home at 8647 Timber Place, San Antonio, Texas 78250, for Plaintiff. Defendants' actions in furtherance of the promise, included but were not limited to contracting for an inspection and repairs for the home, prior to purchase . 23.. At the direction of Defendant Jones, Defendant Donbavand negotiated a temporary lease agreement between, Tara Kemp, the owner of the home at 8647 Timber Place, and Plaintiff, pending closing of !hat purchase on or about September 15, 2014 . Defendant Donbavand prepared the one-month lease pending the closing of the sale. 24.. Relying on the promise to purchase, and subsequent actions on the part of ' Defendants, Plaintiff Faire gave notice to vacate her prior address .. 25. On or about August 30, 2014, Plaintiffs employment with Defendant FMP was abruptly terminated, without notice or good cause connected with the work.. Her employment was terminated after several years, and following a recent promotion and pay increase. Defendant Jones had promised Plaintiff lifetime employment based on her willingness to work around the clock if necessary. Rec ei ved Time Feb. 3 9: 44AM 19 ,., ·:- ~ ·- :·.: ::::;: ~ :: : ··~: : 26. Employees of Defendants All Jones, LLC, and FMP, under the direction and control of Defendants Jones and Donbavand, were instrncted, and did demand and collect Plaintiffs personal iPhone, iPad, and computers.. Defendants then h;id access to all her security and passwords, including her bank account, which they accessed. 27.. On or about September 8, 2014, at the direction of Defendants Jones and Donbavand, FMP employee Jessica DelaTorre personally delivBred a Notice to Vacate Property, to Plaintiff at her home at 8647 Timber Place. COUNT I • Promlssol)' Estoppel As A Claim 28.. Defendant Jones made a promise to the Plaintiff that he would buy her a house . The said house was owned by Tara Kemp, the wife of his partner, Jason Kemp. Defendant Jones assured Plaintiff that the official real estate documents for conveyance were being prepared . Defendant wanted Plaintiff to own the house in consideration for her loyal employment during the past years . The nature of the promise was one that was reasonable considering the special relationship between the parties. detriment Her reliance was foreseeable by Defendant Jones and other Defendants acting in concert with Jones.. Further, Defendants have actual knowledge of her reliance In that in furtherance of Jones' promise to purchase the house for her, Plaintiff made numerous improvements to the home Defendant Jones promised her. Plaintiff sustained economic damages as a result and great injustice can be avoided only by enforcing the Defendanrs promise. r Received Time Feb. 3 9:44AM 30.. Defendant Jones knew or reasonably should have known, U1at Plaintiff would rely on Defendant's promise. Injustice to Plaintiff can be avoided solely if Defendant's promise is enforced.. Plaintiff's reliance on Defendant Jones' promise (s) resulted In Injury to Plaintiff which caused economic as well as non-economic damages . Plaintiff seeks damages within the jurisdictional limits of the court 31.. Further, Plaintiff is entitled to recoverreasonable and necessary attorney f~es under Texas Civil Practice & Remedies CO de section 38 . 001 (8) because this suit COUNT 11- WRONGFUL TERMINATION 32. Over two years ago Plaintiff and Defendants entered into a valid and enforceable written employment agreement. Throughout the term of employment, Defendant Jones incessantly praised Plaintiff for her efforts both as to the companies and to his personal requii·ements. Defendant Jones accordingly gave her pay raises and 9ther benefits. 33. \JV lthln two weet<:s ol l'ler latest pay rnJSe, Oefentlati! Jones breached the - employment agreement by firing her without cause . Defendant Jones has failed to meet the terms of the agreement His breach has caused injury to the Plaintiff which resulted in economic damages including but not limited to her mqnthly salary, benefits and a severance package . Plaintiff seeks unliquidated damages within the jurisdictional limits of this Court. Received Time Feb 3 9:44AM .. ::::.: .. 34.. Defendant Jones' accessing of her personal bank account and Facebook account and other private matters would be offensive to a reasonable person . Plaintiff has confirmed with her bank of Defendant Jones' intrusion via the internet COUNT Ill - CONVERSION 35. Plaintiff owned several items of electronic personal property that included an !phone and an lpad load with personal information and private pass codes including to bank accounts . Defendants wrongfully acquired and exercised dominion and control over Plaintiff's personal property and invade her right to privacy . Defendants have refused to return Plaintiffs personal property and continue to harass Plaintiff by illegally accessing her email accounts. property by means of written communications with Defendant Jones . He intentionally and willfully contlnues to exercise dominion and control over Plaintiff's personal property including electronic information. Defendants' wrongful acts have proximately and directly caused injury to the Plaintiff, which have resulted in economic and non- eeono111ie dainagl!!S. Plaintiff seeks 1ettin1 mti 1e etinoeffod prepefly a11d tf'ie damages within the jurisdictional limits of the Court.. 37.. Further, Plaintiff seeks exemplary damages against all Defendants as her injury resulted from Defendants' malice, which entitles Plaintiff to exemplary damages under rex. Civ . P .. & Remedies Code section 41..003(a). Plaintiff is also entitled to recover reasonable attorney fees under the Texas Property Code, because this claim is to recover her personal property . Received Time Feb 3 9:44AM JURY DEMAND 38.. Plaintiff demands a jury trial and tenders the appropriate fee with thi$ petition . CONDITIONS PRECEDE'.NT 39.. All conditions precedent to plalntifrs claim for relief have been performed or have occurred .. REQUEST FOR DISCLOSURE 40 . Under Texas Rule of Civil Procedure 194, plaintiff requests that defendant disclose, within 50 days of the service of this request, the information or material described in Rule 194..2 . 41 . Plaintiff objects to the referral of this case to an associate judge for hearing a PRAYER For these reasons, plaintiff asks that defendant be cited to appear and answer and, on final trial, that plaintiff be awarded a judgment against defendant for the a. Economic and non-economic damages including, but not limited to back pay, front pay, severance pay, specific performance regarding the gift purchase of a home (or its morietary equivalent).. b.. Prejudgment and postjudgment Interest c.. Court costs . Received Time Feb 3 9:44AM d. Attorney's fees e. All other relief to which plaintiff is entitled. LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile l Argyle2@sbcglobal.net By: Isl Olga Brown_ OLGA BROWN State Bar No. 03155500 Attomey for Plaintiff l Received Time Feb 3 9:44AM Feb. 3 2015 9:55AM No 7814 P 24 EXHIBIT 2 r Received Time Feb. 3 9:44AM Feb 3 2015 9:55AM No 7814 P 25 FILED 11126/2014 11:17:31 AM Donna Kay McKinney Bexar County District Cieri< Accepted By: Maria Abilez CAUSE NO. 2014-Cl-16674 CEARTHFAIRE, § IN THE DlSTRlCT COURT § Plaintiff, § § v. § § FMP SA MANAGEMENT GROUP, LLC § 150TH JUDIClAL DIS IRJCI d/b/aFOOD:MANAGEMENTPARTNERS, § LLC, ALL JONES, LlC, ALLEN L JONES § INDIVIDUALLY, AND PETER § DONBAVAND, INDIVIDUALLY § § Defendants.. § BEXAR COUNTY, TEXAS DEFENDANTS' GENERAL DENIAL, DEFENSES & REQUEST FOR DISCLOSURES TO PLAINTIFF For their Answer to Plaintiff's Original Petition, Defendants FMP SA Management Gxoup, LLC d/b/a Food Management Pa1tnexs, LLC, All Jones, LLC, Allen l. Jones, and Peter Donbavand (collectively, "Defendants") respectfully show the following: l. GENERAL DENIAL Pursuant to Texas Rule of Civil Procedure 92, Defendants generally deny each and every allegation contained in Plaintiff's 01iginal Petition, and demand strict proof thereof as required by the Constitution, Statutes, Laws and Texas Rules of Civil Procedure . 1.. Fails to State a Claim -Plaintiff fails to state a claim, in whole or in pID:t, in her :Petition upon which relief can be granted. l 1 Rec e i ved Time Feb 3 9: 44AM Feo 3 2015 9:55AM No 7814 p 26 2.. Conditions Precedent - Plaintiffs claims are barred, in whole or in part, by the applicable statutes of limitations and/or her failure to satisfy required conditions precedent, including any applicable administrative prerequisites. 3. :Express Contract- Plaintiff's claims may be baned, in whole or in part, because the alleged promises at issue in her Petition were subject to a valid, express contract between the parties. 4.. Statute of Frauds - Plaintiff's claims may be barred, in whole or in paxt, by the statute of frauds . 5. Lack of Consideration - Plaintiffs claims may be baned, in whole or in part, because the alleged contracts at issue in her Petition were not supported by mutual consideration . 6.. Failure of Consideration - Plaintiffs claims may be barred, in whole or in part, because Plaintiff failed to peifoxm a condition precedent to Defendants' alleged duties to perform, if any. 7.. Wrongfully Acauired Possession -Plaintiff's claims for alleged conversion may be barred because Plaintiffwiongfully acquired the underlying items and/or property. 8. Superior Title - Plaintiff's claims may be baxred, in whole 01 in part, because Defendants had superior title or right to the underlying items and/or propert'·· 9. Conipan1tive Negligence/No Proxiniate Cause - Plaintiff's damages and losses, if any, were the result of Plaintiff's own conduct and/or omissions, and wer·e not pxoximately caused by Defendants' actions and/or omissions . 10. Equitable Defenses -Plaintiff's claims may be barred, in whole oz in part, by the doctrines of waiver, estoppe!, collateral estoppel, res judicata, £n pari delicro, and unclean hands . Received Time Feo. 3 9:44AM Feb 3 2015 9:56AM No. 7814 P 27 11 Failure to Mitigate - Plaintiff has failed to exercise reasonable care and diligence to mitigate her damages, if any . 12. Offset -Plaintiff's damages and losses, if any, should be reduced by llllY and all interim eru:nings . 13.. Right to Amend or· Supplement -Defendants reserve the right to amend or supplement their Answer in accordance with the I exas Rules of Civil Procedure. Ill. REQUEST FOR DISCLOSURE Pursuant to Texas Rule of Civil Procedure 194, Defendants request that Plaintiff disclose, within 30 days of service of this request, the information or material described in Rule 194 2. rv. PRAYER Defendants request that, upon fmal hearing, the Court dismiss this lawsuit in its entirety and ordeI' Plaintiff to take nothing by reason of this action; 01der Plaintiff to pay Defendants the aa:omey' s fees and costs ihey have incurred and will incur in defending this action; and grant Defendants all other relief to which it may be entitled . DATED this 26th day of November, 2014 . Received Time Feb 3 9:44AM Feb 3 2015 9:56AM No. 7814 P 28 hristirie E.Reinhil.id · ··· State Bar No. 24013389 Shannon B. Schmoyer State Bar No. 17780250 Justin Bru:bour State Bar No . 24055142 SCHMOYER REINHARD LLP 17806 lH 10 West, Suite 400 San Antonio, Texas 78257 Phone: (210) 447-8033 Fax: (210) 447··8036 cteinhood@sr-llp.com sschmoyer@sr-llp.com jbarbour@s1-lJp.com ATTORNEYS FOR DEFENDANTS FMl' SA MANAGEMENr GROUP, LLC, D/B/A FOOD MANAGEMENT PARTNERS, LLC, ALL JONES, LLC, ALLEN J; JONES, AND PETERDONBAVAND I hereby certify that a copy of the foregoing document was served via catified mail, return receipt requested, to: Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 SanAntonio, Texas 78205 (210) 226-1884 (facsimile) argyle2@sbcglobal.net on this 26th day ofNovember, 2014 . r 4 Received Time Feb . 3 9:44AM Feb 3 2015 9:56AM No 7814 P 29 EXHIBIT 3 Received Time Feb 3 9:44AM Feb 3 2015 9:56AM No 7814 P 30 CEARTH FAIRE § IN THE DISTRICT Plaintiff § § v. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF'S AMENDED ORIGINAL PETITION Plaintiff, Cearth Faire, files this Amended Original Petition against defendants, Fmp Sa Management Group, LLC, D/B/A Food Management Partners, LLC, All Jones, LLC, Allen J Jones, and Peter Donbavand, and alleges as follows: 1 Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil Procedure 190 . 4 and affirmatively pleads that this suit is not governed by the expedited-actions process in Texas Rule of Civil Procedure 169 because she may seek injunctive relief. 2.. Plaintiff seeks monetary relief over $200,000 . 00 but not more than $3,000,000 00 . Received Time Feb 3 9:44AM I Feb, 3 2015 9:57AM No 7814 P 31 3, Plaintiff, Gearth Faire, is an individual whose address is 8647 Timber Place, San Antonio, TX 78250, 4,, Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD MANAGEMENT PARTNERS, LLG is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is represented by counsel, and is properly before this court,, 5., Defendant ALL JONES, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and and has been served and is 6,, Defendant Allen ,J Jones, is an individual who has been served and is 7. Defendant Peter Donbavand, is an individual has been served and is 8., The Court has subject-matter jurisdiction over the lawsuit because the amount in controversy exceeds this Court's minimum jurisdictional requirements,, 9., Venue is proper in Bexar County as all or a substantial part of the events or omissions giving rise to the claim occurred in Bexar County,, Received Time Feb, 3 9:44AM Feb, 3 2015 9:57AM No 7814 P 32 10,, Plaintiff Faire was an employee of Defendants, as well as a personal assistant to Defendant Jones,, Plaintiff, in addition to working for Defendants' businesses, also took care of Defendant Jones' personal matters, including living in the Dominican Republic for approximately five months on a 24/7 basis assisting in his defense in a family law matter, Plaintiff has not been properly compensated for her seNices, 11, Defendant Jones in recognition for her loyal and tireless seNices assumed the role of her benefactor. In his role as a benefactor Defendant Jones promised Plaintiff that he would buy her a home so she would never have worries about a residence,, Defendant Jones developed a scheme for the purchase of the house that included an authorization that Plaintiff's pay scale would be increased to cover the house payments, Defendant Jones intended to hide the gift from the other Defendants named in this lawsuit Defendants have a real estate department as part of their businesses,, 12,. Although Defendant Jones intended to disguise the gift of the residence from his business partners, nevertheless he authorized for the necessary real estate transactions to be initiated that would result in a purchase transaction with Plaintiff as the owner, Plaintiff relied on Defendant Jones' promise and she moved into the residence at 8647 Timber Place, San Antonio, Texas 78250,, 13,, Plaintiff incurred moving expenses as well as expenses in making repairs to the residence to make it habitable, The residence is still in need of Received Time Feb 3 9:44AM Feb 3 2015 9:57AM No 7814 P 33 significant repairs. An inspection was ordered by the defendants as further proof of Defendant Jones' promise of the gift. Further, in reliance that the home would be 14. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent promotion based on meritorious work .. Defendant Jones has now conspired with the other defendants including Defendant Peter Donabavand to evict Plaintiff from the house she was promised. The wrongful eviction proceedings were abated, as the justice of the peace court Jacks jurisdiction to rule on the petition for eviction. Defendants have not withdrawn their petition for eviction, as further proof of the Defendant Jones' promise to Plaintiff. 15.. Defendants continue to harass the Plaintiff by wrongfully repossessing her car Plaintiff had clear title to her 2005 Mini cooper . Jones promised her an ambiguous payment plan, and in retaliation for claiming her rightful title to her house, he has deprived Plaintiff of a necessity to seek employment During the repossession process, he terrorized her by sending strangers to ring her doorbell, all while he owns a million dollars worth of automobiles, and spends a great deal of his time in the Dominican Republic . Count 1 Promissory Estoppel as a Claim 16. Defendant Jones promised the Plaintiff that he would purchase a residence for her.. He promised that he would buy the home owned by another partner. The financing of the purchase was designed so as to be disguised as follows: Plaintiff was to receive and did receive a raise to cover the monthly payments. Defendant Received Time Feb 3 9:44AM Feb 3 2015 9:58AM No 7814 P 34 Jones also promised Plaintiff lifetime employment 17.. All the necessary real estate documents were ordered by Defendant Jones . 18.... Plaintiff relied on Defendant Jones' promise because the nature and subject of the promise was reasonable in the context of the relationship between the Plaintiff and Defendant Jones . Plaintiff 's reliance on the promise was also reasonable and substantial, and she moved into the residence incurring moving and repair 19.. Defendant Jones knew or !·easonably should have known. that Plaintiff would rely on Defendant's promise.. Injustice to Plaintiff can be avoided solely if Defendant's promise is enforced Plaintiff's reliance on Defendant Jones' promise (s) resulted in injury to Plaintiff which caused economic as well as non-economic damages.... Plaintiff seeks damages within the jurisdictional limits of the court 20.. Further, Plaintiff is entitled to recover reasonable and necessary attorney fees under Texas Civil Practice & Remedies Code section 38 . 001 (8) because this suit 21.. On or about July 25, 2014 at the office of FMP SA Management Group, LLG, d/b/a Food Management Partners, LLC, hereinafter "FMP", 120 Chula Vista, San Antonio, Bexar County, Texas, Allen J Jones, President of FMP, and benefactor of Plaintiff, made a promise to purchase a home for Plaintiff, located at 8647 Timber Place, San Antonio, Texas 78250, for Plaintiff, Cearth Faire, negotiating a temporary lease pending the purchase of the home for her. . 22 At the direction of Defendant Jones, Defendant Peter Donbavand, Vice l Received Time Feb . 3 9:44AM Feb. 3 2015 9:58AM No 7814 P 35 President of Real Estate & Business Development for Defendant FMP, commenced the process of purchasing the home at 8647 Timber Place, San Antonio, Texas 78250, for Plaintiff.. Defendants' actions in furtherance of the promise, included but were not limited to contracting for an inspection and repairs for the home, prior to 23. At the direction of Defendant Jones, Defendant Donbavand negotiated a temporary lease agreement between, Tara Kemp, the owner of the home at 8647 Timber Place, and Plaintiff. pending closing of that purchase on or about September 15, 2014. Defendant Donbavand prepared the one-month lease pending the closing of the sale . 24.. Relying on the promise to purchase, and subsequent actions on the part of Defendants, Plaintiff Faire gave notice to vacate her prior address. 25.. On or about August 30, 2014, Plaintiffs employment with Defendant FMP was abruptly terminated, without notice or good cause connected with the work.. Her employment was terminated after several years, and following a recent promotion and pay increase. Defendant Jones had promised Plaintiff lifetime employment based on 26.. Employees of Defendants All Jones, LLC, and FMP, under the direction and control of Defendants Jones and Donbavand, were instructed, and did demand and collect Plaintiffs personal iPhone, iPad, and computers. Defendants then had access to all her security and passwords, including her bank account, which they accessed. Received Time Feb. 3 9:44AM Feb 3 2015 9:59AM No 7814 P 36 27. On or about September 8, 2014, at the direction of Defendants Jones and Donbavand, FMP employee Jessica DelaTorre personally delivered a Notice to Vacate Property, to Plaintiff at her home at 8647 Timber Place . COUNT I - Promissory Estoppel As A Claim 28.. Defendant Jones made a promise to the Plaintiff that he would buy her a house. The said house was owned by Tara Kemp, the wife of his partner, Jason Kemp.. Defendant Jones assured Plaintiff that the official real estate documents for conveyance were being prepared.. Defendant wanted Plaintiff to own the house in consideration for her loyal employment during the past years. The nature of the promise was one that was reasonable considering the special relationship between the parties, and the multi-million dollar net worth of the Defendant Jones, that includes approximately one million dollars worth of automobiles . 29.. Plaintiff Faire reasqnably and substantially relied on the promise to her detriment Her reliance was foreseeable by Defendant Jones and other Defendants acting in concert with Jones.. Further, Defendants have actual knowledge of her reliance in that in furtherance of Jones' promise to purchase the house for her, Plaintiff made numerous improvements to the home Defendant Jones promised her. Plaintiff sustained economic damages as a result and great injustice can be avoided only by enforcing the Defendant's promise, which is reasonable in light of Defendant Jones' net worth . Received Time Feb. 3 9:44AM Feb 3, 2015 9:59AM No 7814 P 37 30,, Defendant Jones knew or reasonably should have known, that Plaintiff would rely on Defendant's promise . Injustice to Plaintiff can be avoided solely if Defendant's promise is enforced. Plaintiff's reliance on Defendant Jones' promise (s) resulted in injury to Plaintiff which caused economic as well as non-economic damages,, Plaintiff seeks damages within the jurisdictional limits of the court 31,, Further, Plaintiff is entitled to recover reasonable and necessary attorney fees under Texas Civil Practice & Remedies Code section 38 .001 (8) because this suit is for promissory estoppet COUNT II-WRONGFUL TERMINATION 32,, Over two years ago Plaintiff and Defendants entered into a valid and enforceable written employment agreement. Throughout the term of employment, Defendant Jones incessantly praised Plaintiff for her efforts both as to the companies and to his personal requirements,, Defendant Jones accordingly gave her pay raises and other benefits,, 33, Within two weeks of her latest pay raise, Defendant Jones breached the employment agreement by firing her without cause,, Defendant Jones has failed to meet the terms of the agreement His breach has caused injury to the Plaintiff which resulted in economic damages including but not limited to her monthly salary, benefits and a severance package., Plaintiff seeks unliquidated damages within the jurisdictional limits of this Court,, Received Time Feb 3 9:44AM Feb 3 2015 9:59AM No 7814 P 38 34. Defendant Jones' accessing of her personal bank account and Facebook account and other private matters would be offensive to a reasonable person . Plaintiff has confirmed with her bank of Defendant Jones' intrusion via the internet Plaintiff seeks exemplary damages for this outrageous, if not illegal conduct 35.. Plaintiff owned several items of electronic personal property that included an lphone and an lpad load with personal information and private pass codes including to bank accounts. Defendants wrongfully acquired and exercised dominion and control over Plaintiff's personal property and invade her right to privacy . Defendants have refused to return Plaintiff's personal property and continue to property by means of written communications with Defendant Jones . He intentionally and willfully continues to exercise dominion and control over Plaintiff's personal property including electronic information . Defendants' wrongful acts have proximately and directly caused injury to the Plaintiff, which have resulted in economic and non- economic damages . Plaintiff seeks return of the converted property and the damages within the jurisdictional limits of the Court Defondants as her injury resulted from Defendants' malice, which entitles Plaintiff to exemplary damages under Tex. Civ P & Remedies Code section 41 . 003(a) Plaintiff r Received Time Feb. 3 9:44AM Feb 3 2015 10:00AM No 7814 P 39 is also entitled to recover reasonable attorney fees under the Texas Property Code, 38.. Plaintiff has demanded a jury trial and tendered the appropriate fee with her original petition . 39 . All conditions precedent to plaintiff's claim for relief have been performed or 40. Plaintiff objects to the referral of this case to an associate judge for hearing a For these reasons, plaintiff asks that defendant be cited to appear and answer and, c;in final trial, that plaintiff be awarded a judgment against defendant for the b. Economic and non-economic damages including, but not limited to back pay, front pay, severance pay, specific performance regarding the gift purchase of a home (or its monetary equivalent) c.. Prejudgment and postjudgment interest d.. Court costs . e.. Reasonable and necessary Attorney's fees Rec ei ved Time Feb 3 9: 44AM Feb 3 2015 10:00AM No 7814 P 40 f All other relief to which plaintiff is entitled. LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-'1884 facsimile Arqyle2@sbcglobal.net By: Isl Olga Brown OLGA BROWN State Bar No . 03155500 Attorney for Plaintiff I do hereby certify that on the 5th day of December 2014, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff's Amended Original Petitioner was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10West, Suite 400 San Antonio, Texas 78257 Isl Olga Brown OLGA BROWN Received Time Feb 3 9:44AM Feb 3 2015 10:00AM No 7814 P 41 EXHIBIT4 [ Received Time Feb 3. · 9:44AM Feb 3 2015 10:00AM No 7814 P 42 FILED 1/2812015 4:07:54 PM Donna Kay McKinney Bexar County District Cieri< Accepted By: Monica Hernande~ CAUSE NO. 2014-CJ.16674 CEARTH FAIRE § JN THE DISTRICT Plaintiff § § v. § § 1soTH JUDICIAL DISTRICT FMI> SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION Plaintiff, Cearth Faire, files this Second Amended Original Petition against defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners, LLC, ALL JONES, LLC, Allen J Jones, and Peter Donbavand, and alleges as follows: DISCOVERY-CON'rROL PLAN 1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil Procedure 190.4 and affirmatively pleads that this suit is not governed by the expedited-actions process in Texas Rule of Civil Procedure 169 because she may seek injunctive relief. Plaintiff has a pending Motion for a Level Three Docket Control Order, and the parties entered into a Rule 11 Agreement showing intent to enter into an Agreed Docket Control Order and setting this matter for Jury Trial November 2, 2015 See Exhibit A. Received Time Feb. 3 9:44AM Feb. 3 2015 10:01AM No 7814 P 43 2.. Plaintiff seeks monetary relief over $200,000.00 but not more than $3,000,000 . 00. 3.. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place, 4.. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is represented by counsel, and is properly before this court 5. Defendant ALL JONES, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and and has been served and is 6. Defendant Allen J Jones, is an individual who has been served and is 7.. Defendant Peter Donbavand, is an individual has been served and is 8.. The Court has subject-matter jurisdiction over the lawsuit beeause the amount in controversy exceeds this Court's minimum jurisdictional requirements . Received Time Feb 3 9:44AM Feb 3 2015 10:01AM No. 7814 P 44 9.. Venue is proper in Bexar County as all or a substantial part of the events or omissions giving rise to the claim occurred in Bexar County . 10.. Plaintiff Faire was an employee of Defendants, as well as a personal assistant to Defendant Jones.. Plaintiff, in addition to working for Defendants' businesses, also took care of Defendant Jones' personal matters, including living in the Dominican Republic for approximately five months on a 2417 basis assisting in his defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been properly compensated for her services . 11.. Defendant Jones, in recognition for her loyal and tireless services assumed the role of her benefactor . In his role as a benefactor Defendant Jones promised Plaintiff that he would buy a home and transfer ownership to Plaintiff, so she would never have worries about a residence.. Defendant Jones developed a scheme for his purchase of the house that included telling other corporate officers that Plaintiff's pay increase was for the house payments Defendant Jones intended to hide his gift from the other Defendants named in this lawsuit Defendants have a real estate department as part of their businesses, and therefore, Plaintiff was further inclined to believe his promise to purchase and transfer ownership . 12.. Although Defendant Jones intended to disguise the gift of the residence from his business partners, nevertheless he authorized for the necessary real estate Received Time Feb 3 9:44AM Feb 3 2015 10:01AM No. 7814 P 45 transactions to be initiated that would result in a purchase transaction and an immediate transfer of ownership.. Plaintiff relied on Defendant Jones' promise and she moved into the residence at 8647 Timber Place, San Antonio, Texas 78250 . 13.. Plaintiff incurred moving expenses as well as expenses in making repairs to the residence to make it habitable . The residence is still in need of significant repairs. An inspection was ordered by the defendants as further proof of Defendant Jones' purchase with intention to make a gift Further, in reliance that the home would be given to her, Plaintiff agreed to sign a one-month lease. 14. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent promotion based on meritorious work .... Defendant Jones has now conspired with the other defendants including Defendant Peter Donbavand to evict Plaintiff from the house she was promised. The wrongful eviction proceedings were abated, as the justice of the peace court lacks jurisdiction to rule on the petition for eviction 15.. Defendants continue to harass the Plaintiff by wrongfully repossessing her car. Plaintiff had clear title to her 2005 Mini cooper. Jones promised her an ambiguous payment plan, and in retaliation for claiming her rightful title to her house, he has depriVed Plaintiff of a necessity of transportation to seek employment During the repossession process, he terrorized her by sending strangers to ring her doorbell, all while he owns a million dollars worth of automobiles, and spends a great deal of Rec ei ved Time Feb 3 9: 44AM Feb 3 2015 10:02AM No 7814 P 46 16.. Plaintiff had an exemplary employment record with Defendants FMP and ALL JONES, LLC, and had immediately before the firing, been given a raise in pay and additional duties.. Plaintiff was fired solely because Plaintiff refused to continue perform employment duties that were not in furtherance of the corporate business but to serve as a shield for Defendant Jones numerous illegal activities some including sexual harassment. Defendant Peter Donbavand, a business partner of Defendant Jones was aware of the employment violations occurring at the corporations and by non-action, condoned the wrongful conduct of Defendant Jones . 17.. Plaintiff seeks actual damages as a result of the wrongful termination, which include, but are not limited to back pay from the date of retaliation until the date of trial.. Plaintiff also seeks future pay in lost earnings and benefits including the repossession of her automobile lost as a result of her wrongful termination . 18.. Plaintiff also seeks damages for past and future mental anguish as a result of Defendant Jones forcing her to choose between the illegal activities he was demanding of her and her livelihood . 19.. Defendant Jones acted with malice toward Plaintiff in that ,Jones exhibited conscious indifference to consequences Plaintiff might suffer separate and apart from the damages suffered as a result of the wrongful termination.. Defendant Jones and Defendant Donbavand have inflicted additional injuries by circulating malicious rumors about the Plaintiff, harassing the Plaintiff and other activities which affect her future employment. Plaintiff therefore seeks exemplary damages. Rec ei ved Time Feb. 3 9: 44AM Feb 3 2015 10:02AM No 7814 P 47 COUNT 1-PROMISSORY ESTOPPEL as a CLAIM 20.. On or about March 27, 2013, when Plaintiff Faire was temporarily living in the Dominican Republic at the request of Defendant ,Jones, taking care of Jones' child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas. 21. It was reasonable for Plaintiff to rely on Defendant Jones' promise to purchase a home and gift it to her based on Defendant Jones' financial resources, including his ownership of one million dollars worth of cars, and extensive property real estate holdings in the United States, and in the Dominican Republic. 22.. Defendant Jones promised the Plaintiff that he would execute a written agreement at closing, giving her full title and interest to the home . Defendant Jones further promised the closing would take place immediately upon the reaching of an agreement on the final price and other terms. A final purchase price was reached between Defendant Jones and his business partner Jason Kemp . All terms for the 23. Defendant Jones negotiated all the terms of the real estate purchase Defendant Jones had reached an agreement with his business partner, Jason Kemp to purchase the house located at 8647 Timber Place San Antonio, Texas 78250 from Kemp's wife, Tara Kemp . The real estate actions necessary for a closing were initiated . Defendant Donbavand ordered an inspection of the home in furtherance of a prompt closing . Rec ei ved Time Feb 3 9: 44AM Feb 3 2015 10:03AM No. 7814 P 48 24.. Although there were no uncertainties regarding the purchase of the home by Defendant Jones for the Plaintiff, there was a delay in the closing. Plaintiff was asked to sign a one month lease pending the real estate closing. In signing the one-month lease, Defendant Jones promised he would sign the necessary documents to give Plaintiff full and complete ownership of the home in consideration for her loyal efforts in assisting Defendant Jones in the defense of his suit for divorce . 25. It now appears th.at Defendant Jones, acting in concert with Defendant Donbavand, who appeared in Justice of Peace court attempting to practice law without a. a false representation or concealment of material facts concerning the real estate transaction; b.. made representation with knowledge, actual or constructive, of those facts; c. with the intention that it should be acted on; d.. to a party without knowledge or the means of knowledge of those facts e.. who detrimentally relied upon the misrepresentation 26.. Plaintiff contends the promise to complete the transaction (closing of the real estate} conveying title to Plaintiff is binding against Defendant Jones in order to avoid injustice. Plaintiff further contends equitable estoppel alleged above is sufficient to preclude the statute of fraud defense to this promise of a home to Plaintiff. COUNT 2 QUID PRO QUO SEXUAL HARASSMENT. 27 Plaintiff was an employee of Defendants FMP, ALL JONES and their subsidiaries, and her duties were to serve as a personal assistant to the Defendant Received Time Feb 3 9:44AM Feb 3 2015 10:03AM No 7814 P 49 Allen J . Jones, the President and CEO of Defendant FMP . Plaintiff was a self- supporting divorced woman with no financial resources other than her wages. Plaintiff also had an exemplary work history prior to working for Defendants . 28.. On or about January 21, 2013 Defendant Jones made sexual advances toward Plaintiff, a very attractive woman . Defendant Jones then demanded physical conduct of a sexual nature. Defendant Jones's demands escalated and the mental abuse was so extreme that it prevented Plaintiff from defending herself. 29.. Defendant Jones made it cleared to the Plaintiff ttiat continued employment as well as other job benefits were conditioned on her acceptance of the continued sexual demands of Defendant Jones . 30. At the time of the harassment, Defendant Jones was the President and CEO of the Food Management Partners, a Texas LLC . At all times, Defendant Jones held himself out to Plaintiff and to the public, as a very powerful business man, and owner of 150 businesses . Defendant Jones instilled fear of his power on Plaintiff.. There was no recourse available to the Plaintiff to complain.. 31.. Plaintiff was harmed by the physical sexual conduct perpetrated against her by Defendant Jones.. Plaintiff's harm was directly and proximately cause by Defendant Jones sexual harassment.. When Plaintiff was well enough to, she refused to further submit to Defendant Jones' inappropriate requests she was fired on or about August 31, 2014 . l a Rec ei v ed Time Feb 3 9: 44AM Feb 3 2015 10:03AM No 7814 P 50 32.. Plaintiff seeks compensatory damages for lost wages, lost benefits and future employment opportunities based on her traumatic experience at the hand of 33. Plaintiff seeks exemplary damages based on Defendant Jones's history of sexual harassment of others and including the purchase of a female for his own 34. Further, Plaintiff seeks exemplary damages against all Defendants, as her injury resulted from Defendants' malice, which entitles Plaintiff to exemplary damages under Tex Civ . P. & Remedies Code section 41..003(a). COUNT 3 - Conspiracy 35.. Defendant Peter Donbavand and Jason Kemp, CFO of FMP assisted Defendant Jones in conduct which they knew amounted to a commission of a tort or 36. Defendant Donbavand and Kemp acted with intent to assist Defendant Jones in his wrongful acts toward Plaintiff including the discriminatory practices perpetrated against Plaintiff more fully described in Petitioner's Second Amended 37.. Defendant Donbavand and Kemp's assistance to Defendant Jones and their own related conduct was a substantial factor in causing the discriminatory practices and in the breach of the promise Defendant Jones made to Plaintiff. Received Time Feb. 3 9:44AM Feb 3 2015 10:04AM No 7814 P 51 38. Plaintiff has demanded a jury trial and tendered the appropriate fee with her 39.. All conditions precedent to plaintiff's claim for relief have been performed or have occurred . 40.. Plaintiff objects to the referral of this case to an associate judge for hearing a trial on the merits or presiding at a jury trial.. I PRAYER For these reasons, plaintiff asks that defendant be cited to appear and answer I and, on final trial, that plaintiff be awarded a judgment against defendant for the following: lI I a. b.. Exemplary damages Economic and non-economic damages including, but not limited to back l I .1 pay, front pay, severance pay, specific performance regarding the gift purchase of a home (or its monetary equivalent) . I c.. Prejudgment and postjudgment interest l !, J d.. Court costs. e. Reasonable and necessary Attorney's fees f.. All other relief to which plaintiff is entitled . Received Time Feb 3 9:44AM Feb 3 2015 10:04AM No 7814 P 52 LAW OFFICE OF OLGA BROWN 111 Sotedad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Arayle2@sbcglobal.net By: Isl Olga Brown OLGA BROWN State Bar No 03155500 Attorney for Plaintiff I do hereby certify that on the 28th day of January 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff's Second Amended Original Petition was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 Isl Olga Btown OLGA BROWN I i l l :1 l ! ii I J I " l" Rec eiv ed Time Feb 3 9: 44AM Feb 3 2015 10:04AM No 7814 P 53 EXHIBIT 5 . Received Time Feb 3 9:44AM Feb. 3 2015 10:04AM No 7814 P 54 CEARTH FAIRE § IN THE DISTRICT Plaintiff § § v. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION Plaintiff, Cearth Faire, files this rhird Amended Original Petition against defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners, LLC, ALL JONES, LLC, Allen ,J ,Jones, and Peter Donbavand, and alleges as follows: 1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil Procedure 1904 and affirmatively pleads that this suit is not governed by the expedited-actions process in Texas Rule of Civil Procedure 169 because she may seek injunctive relief.. Plaintiff has a pending Motion for a Level Three Docket Control Order, and the parties entered into a Rule 11 Agreement showing intent to enter into an Agreed Docket Control Order and setting this matter for Jury Trial November 2, 2015 . See Exhibit A. r Received Time Feb 3 9:44AM Feb 3 2015 10:05AM No 7814 P 55 2. Plaintiff seeks monetary relief over $200,000 . 00 but not more than $3,000,000 . 00 . 3.. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place, MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is represented by 5. Defendant ALL JONES, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and and has been served and is 6.. Defendant Allen J Jones, is an individual who has been served and is 7. Defendant Peter Donbavand, is an individual has been served and is 8. The Court has subject-matter jurisdiction over the lawsuit because the amount in controversy exceeds this Court's minimum jurisdictional requirements . l 2 Rec ei ved Time Feb 3 9: 44AM Feb 3 2015 10:05AM No 7814 P 56 9 Venue is proper in Bexar County as all or a substantial part of the events or 10. Plaintiff Faire was an employee of Defendants, as well as a personal assistant to Defendant Jones. Plaintiff, in addition to working for Defendants' businesses, also took care of Defendant Jones' personal matters, including living in the Dominican Republic for approximately five months on a 24!7 basis assisting in his defense in a family law matter pending in Bexar County, Texas . Plaintiff has not been 11.. Defendant Jones, in recognition for her loyal and tireless services assumed the role of her benefactor. In his role as a benefactor Defendant Jones promised Plaintiff that he would buy a home and transfer ownership to Plaintiff, so she would never have worries about a residence.. Defendant Jones developed a scheme for his purchase of the house that included telling other corporate officers that Plaintiff's pay increase was for the house payments. Defendant Jones intended to hide his gift from the other Defendants named in this lawsuit Defendants have a real estate department as part of their businesses, and therefore, Plaintiff was further · inclined to believe his promise to purchase and transfer ownership . r 12 Although Defendant Jones intended to disguise the gift of the residence from his business partners, nevertheless he authorized for the necessary real estate Received Time Feb 3 9:44AM Feb 3 2015 10:05AM No 7814 P 57 transactions to be initiated that would result in a purchase transaction and an immediate transfer of ownership. Plaintiff relied on Defendant Jones' promise and she moved into the residence at 864l Timber Place, San Antonio, Texas 78250 . 13. Plaintiff incurred moving expenses as well as expenses in making repairs to the residence to make it habitable. The residence is still in need of significant repairs An inspection was ordered by the defendants as further proof of Defendant Jones' purchase with intention to make a gift Further, in reliance that the home would be given to her, Plaintiff agreed to sign a one-month lease . 14. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent promotion based on meritorious work .... Defendant Jones has now conspired with the other defendants including Defendant Peter Donbavand to evict Plaintiff from the house she was promised. The wrongful eviction proceedings were abated, as the justice of the peace court lacks jurisdiction to rule on the petition for eviction. 15.. Defendants continue to harass the Plaintiff by wrongfully repossessing her car. Plaintiffhad clear title to her 2005 Mini cooper.. Jones promised her an ambiguous payment plan, and in retaliation for claiming her rightful title to her house, he has deprived Plaintiff of a necessity of transportation to seek employment During the repossession process, he terrorized her by sending strangers to ring her doorbell, all while he owns a million dollars worth of automobiles, and spends a great deal of his time in the Dominican Republic . Received Time Feb. 3 9:44AM Feb 3. 2015 10:06AM No 7814 P 58 16.. Plaintiff had an exemplary employment record with Defendants FMP and ALL JONES, LLC, and had immediately before the firing, been given a raise in pay and additional duties. Plaintiff was fired solely because Plaintiff refused to continue perform employment duties that were not in furtherance of the corporate business but to serve as a shield for Defendant Jones numerous illegal activities some including sexual harassment Defendant Peter Donbavand, a business partner of Defendant Jones was aware of the employment violations occurring at the corporations and by non-action, condoned the wrongful conduct of Defendant Jones. 17.. Plaintiff seeks actual damages as a result of the wrongful termination, which include, but are not limited to back pay from the date of retaliation until the date of trial . Plaintiff also seeks future pay in lost earnings and benefits including the repossession of her automobile lost as a result of her wrongful termination. 18.. Plaintiff also seeks damages for past and future mental anguish as a result of Defendant ,Jones forcing her to choose between the illegal activities he was 19.. Defendant Jones acted with malice toward Plaintiff in that Jones exhibited conscious indifference to consequences Plaintiff might suffer separate and apart from the damages suffered as a result of the wrongful termination. Defendant Jones and Defendant Donbavand have inflicted additional injuries by circulating malicious rumors about the Plaintiff, harassing the Plaintiff and other activities which affect her future employment Plaintiff therefore seeks exemplary damages . Received Time Feb 3 9:44AM Feb 3 2015 10:06AM No 7814 P 59 20. On or about March 27, 2013, when Plaintiff Faire was temporarily living in the Dominican Republic at the request of Defendant Jones, taking care of Jones' child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas . 21.. It was reasonable for Plaintiff to rely on Defendant Jones' promise to purchase a home and gift it to her based on Defendant Jones' financial resources, including his ownership of one million dollars worth of cars, and extensive property real estate holdings in the United States, and in the Dominican Republic . 22.. Defendant Jones promised the Plaintiff that he would execute a written agreement at closing, giving her full title and interest to the home . Defendant Jones further promised the closing would take place immediately upon the reaching of an agreement on the final price and other terms. A final purchase price was reached between Defendant Jones and his business partner Jason Kemp All terms for the sale of the house were reached by buyer and seller 23.. Defendant Jones negotiated all the terms of the real estate purchase . Defendant Jones had reached an agreement with his business partner, Jason Kemp to purchase the house located at 8647 Timber Place San Antonio, Texas 78250 from Kemp's wife, Tara Kemp . The real estate actions necessary for a closing were initiated . Defendant Donbavand ordered an inspection of the home in furtherance of a r 6 Received Time Feb 3 9:44AM Feb 3 2015 10:07AM No 7814 P 60 24.. Although there were no uncertainties regarding the purchase of the home by Defendant Jones for the Plaintiff, there was a delay in the closing. Plaintiff was asked to sigri a one month lease pending the real estate closing. In signing the one-month lease, Defendant Jones promised he would sign the necessary documents to give Plaintiff full and complete ownership of the home in consideration for her loyal efforts in assisting Defendant Jones in the defense of his suit for divorce 25.. It now appears that Defendant Jones, acting iii concert with Defendant Donbavand, who appeared in Justice of Peace court attempting to practice law without a.. a false representation or concealment of material facts concerning the real estate transaction; b. made representation with knowledge, actual or constructive, of those facts; c. with the intention that it should be acted on; d.. to a party without knowledge or the means of knowledge of those facts 26 Plaintiff contends the promise to complete the transaction (closing of the real estate) conveying title to Plaintiff is binding against Defendant Jones in order to avoid injustice Plaintiff further contends equitable estoppel alleged above is sufficient to preclude the statute of fraud defense to this promise of a home to Plaintiff. 27 Plaintiff was an employee of Defendants FMP, ALL JONES and their subsidiaries, and her duties were to serve as a personal assistant to the Defendant Rec ei ved Time Feb. 3 9: 44AM Feb. 3 2015 10:07AM No 7814 P 61 Allen J.. Jones, the President and CEO of Defendant FMP. Plaintiff was a self- supporting divorced woman with no financial resources other than her wages . Plaintiff also had an exemplary work history prior to working for Defendants . 28.. On or about January 21, 2013 Defendant Jones made sexual advances toward Plaintiff, a very attractive woman Defendant Jones then demanded physical conduct of a sexual nature Defendant Jones's demands escalated and the mental abuse was so extreme that it prevented Plaintiff from defending herself.. 29.. Defendant ,Jones made it cleared to the Plaintiff that continued employment as well as other job benefits were conditioned on her acceptance of the 30.. At the time of the harassment, Defendant Jones was the President and CEO of the Food Management Partners, a Texas LLC . At all times, Defendant Jones held himself out to Plaintiff and to the public, as a very powerful business man, and owner of 150 businesses . Defendant ,Jones instilled fear of his power on Plaintiff. There was no recourse available to the Plaintiff to complain: 31.. Plaintiff was harmed by the physical sexual conduct perpetrated against her by Defendant Jones.. PlaintITfs harm was directly and proximately cause by Defendant Jones sexual harassment When Plaintiff was well enough to, she refused to further submit to Defendant Jones' inappropriate requests she was fired on or Received Time Feb. 3 9:44AM Feb 3 2015 10:07AM No 7814 P 62 32.. Plaintiff seeks compensatory damages for lost wages, lost benefits and future employment opportunities based on her traumatic experience at the hand of Defendant ,Jones . 33 . Plaintiff seeks exemplary damages based on Defendant Jones's history of sexual harassment of others and including the purchase of a female for his own inappropriate sexual requests . 34.. Further, Plaintiff seeks exemplary damages against all Defendants, as her injury resulted from Defendants' malice, which entitles Plaintiff to exemplary damages under Tex . Civ. P & Remedies Code section 41.003(a) . COUNT 3 """ Conspiracy 35.. Defendant Peter Donbavand and Jason Kemp, CFO of FMP assisted Defendant Jones in conduct which they knew amounted to a commission of a tort or wrongful acts against the Plaintiff 36. Defendant Donbavand and Kemp acted with intent to assist Defendant Jones in his wrongful acts toward Plaintiff including the discriminatory practices perpetrated against Plaintiff more fully described in Petitioner's Third Amended 37.. Defendant Donbavand and Kemp's assistance to Defendant Jones and their own related conduct was a substantial factor in causing the discriminatory practices and in the breach of the promise Defendant Jones made to' Plaintiff.. Received Time Feb. 3 9:44AM Feb 3 2015 10:08AM No 7814 P 63 COUNT 4 - Fraud 38 . Additionally, Plaintiff Faire pleads fraud on the part of Defendant Jones and aided and abetted by the other Defendants. Petitioner alleges that Defendants are barred from using the statute of frauds to avoid the promise of gifting real estate, namely the residence at 8647 Timber Place, San Antonio, TX 78250 to 39.. Plaintiff claims the gift of real estate must be enforced in equity as the denial of the enforcement would amount to a virtual fraud . See Exxon Co1p Breezevale, Ltd, 82 S W3d 429, 439 (Tex. App-Dallas 2002, pet. denied).. 40.. Plaintiff alleges the facts of her claim removes the suit from the operation of the statute of frauds in that it meets the elements required as set forth; 41.. Plaintiff shows it is undisputed that she worked Defendant Jones with the knowledge of all Defendants for nearly five months in the Dominican Republic on a 2417 basis as consideration, and she has refrained from a claim of wage and hour violations, in reliance of the promise; Plaintiff has properly taken possession of the home pursuant to a document prepared by the Defendants and Plaintiff has made valuable improvements on the faith of the Agreement/promise . L 10 Received Time Feb 3. 9:44AM Feb 3 2015 10:08AM No 7814 P 64 42.. Defendant Peter Donbavand has employed one Robert Ray, attorney at law to initiate eviction proceedings against Plaintiff on two occasions with the full knowledge of Defendant Jones' promise to Plaintiff. Therefore, Plaintiff's injuries resulted from Defendants' actual fraud or malice, which entitles Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41..003(a). 43.. Plaintiff has demanded a jury trial and tendered the appropriate fee with her 44.. All conditions precedent to plaintiffs claim for relief have been performed or 45. Plaintiff objects to the referral of this case to an associate judge for hearing a trial on the merits or presiding at a jury trial . For these reasons, plaintiff asks that defendant be cited to appear and answer and, on final trial, that plaintiff be awarded a judgment against defendant for the b.. Economic and non-economic damages including, but not limited to back pay, front pay, severance pay, specific performance regarding the gift purchase of a home (or its monetary equivalent). Receiveef Time Feb. 3 9:44AM Feb 3 2015 10:08AM No 7814 P 65 c.. Prejudgment and postjudgment interest. d.. Court costs. f.. All other relief to which plaintiff is entitled. LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argvlef@sbcglobal,net By: Isl Olga Brown OLGA BROWN State Bar No . 03155500 Attorney for Plaintiff I do hereby certify that on the. 30th day of January 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff's Third Amended Original Petition was furnished to: Christine E Reinhard SCHMOYE.R REINHARD L.l.P 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 Isl Olga Brown OLGA BROWN Received Time Feb 3 9:44AM Tab 4 FILED 3/10/2015 3:52:26 PM Donna Kay McKinney Bexar County District Clerk Accepted By: Maria Abilez CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, INDIVIDUALLY, AND PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS Plaintiff, Cearth Faire, files this Fourth Amended Original Petition against defendants, FMP Sa Management Group, LLC, D/B/A Food Management Partners, LLC, ALL JONES, LLC, Allen J Jones, Peter Donbavand and Jason Kemp, and 1. A Level Three Agreed Docket Control Order is in place, this matter is set for 2. Plaintiff seeks monetary relief over $200,000.00 but not more than 3. Plaintiff, Cearth Faire, is an individual whose address is 8647 Timber Place, MANAGEMENT PARTNERS, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is represented by 5. Defendant ALL JONES, LLC is an active Texas Limited Liability Company conducting business in the State of Texas, and has been served and is 6. Defendant Allen J Jones, is an individual who has been served and is 7. Defendant Peter Donbavand, is an individual has been served and is 8. Defendant Jason Kemp is an individual whose business address is Food Management Partners, LLC 120 Chula Vista, San Antonio, TX 78232. He may 9. The Court has subject-matter jurisdiction over the lawsuit because the amount in controversy exceeds this Court’s minimum jurisdictional requirements. 10. Venue is proper in Bexar County as all or a substantial part of the events or 11. Plaintiff Faire was an employee of Defendants, as well as a personal assistant to Defendant Jones. Plaintiff, in addition to working for Defendants’ businesses, also took care of Defendant Jones’ personal matters, including living in the Dominican Republic for approximately five months on a 24/7 basis assisting in his defense in a family law matter pending in Bexar County, Texas. Plaintiff has not been 12. Defendant Jones, individually, in recognition for her loyal and tireless services personal to him, promised Plaintiff a home. Defendant Jones developed a scheme for his purchase of the house that included telling other corporate officers that Plaintiff’s pay increase was for the house payments. Defendant Jones intended to hide his gift from the other Defendants named in this lawsuit, until he retaliated against Plaintiff by denying he had made a gift of real estate to Plaintiff. 13. Defendant Jones, in his individual capacity, negotiated with Defendant Jason Kemp, whose wife owned the residence at 8647 Timber Pl, San Antonio, TX 78250. Defendant Jones then instructed, Defendant Donbavand, in his individual capacity and outside the scope of corporate business to prepare the necessary documents so he, Jones could purchase the residence for the Plaintiff. 14. Defendant Donbavand, while a business partner of Defendant Jones and also an agent of Defendant FMP, routinely served Defendant Jones as a personal aide and routinely took orders from Jones outside the course and scope of his duties with the corporate entities to meet the personal demands of Defendant Jones, 15. Defendant Kemp, also a business partner of Defendant Jones, took orders and assumed duties outside the course and scope of the corporate entities upon demand from Defendant Jones the President & CEO of Defendant FMP. Defendant Jones treats the corporate entities as his “piggy bank” and Defendants Donbavand and 16. Defendant Kemp routinely succumbs to the personal demands of Defendant Jones outside the best interests of the corporate business as in this case to sell him the residence at 8647 Timber Pl, San Antonio, TX 78250, so he could gift the property to the Plaintiff in consideration for her assisting in his personal legal matters. documents, again outside the course and scope of corporate business, Defendant Jones requested that Plaintiff move into the house, orally gifting her the house, a present gift. Plaintiff in reliance of his oral promised moved into the house with the consent of Defendant Kemp and the request of Defendant Jones and made valuable and permanent improvements in reliance of Defendant Jones promise to her. 4 18. Plaintiff incurred moving expenses as well as expenses in making permanent improvements to the residence to make it habitable. The residence is still in need of significant repairs. An inspection was ordered by the defendants as further proof of Defendant Jones’ purchase with intention to make a gift. 19. Thereafter, Defendant Jones, fired Plaintiff, notwithstanding her recent promotion based on meritorious work.. Defendant Jones demanded the other defendants Defendant Peter Donbavand and Defendant Jason Kemp evict Plaintiff from the house he had given her. The wrongful eviction proceedings were abated, as the justice of the peace court lacks jurisdiction to rule on the petition for eviction in that title to the property is at issue. The wrongful eviction proceedings are outside the 20. Defendants continued to harass the Plaintiff by wrongfully repossessing her car. Plaintiff had clear title to her 2005 Mini Cooper. Jones promised to repair her car. An ambiguous payment plan was put in place. However, in retaliation for claiming her rightful title to her house, Jones has deprived Plaintiff of a necessity, of transportation to seek employment. During the repossession process, Jones terrorized her by sending strangers to ring her doorbell, all while he owns a million dollars worth of automobiles, and spends a great deal of his time in the Dominican Republic. 21. Plaintiff had an exemplary employment record before being hired by Defendants FMP and ALL JONES, LLC. Immediately before being fired by Defendants, Faire had been given a raise in pay and been entrusted with additional duties. Plaintiff was fired solely because Plaintiff refused to continue to perform employment duties that were not in furtherance of the corporate business and because of Defendant Jones’ demands for demeaning sexual acts and explicit threats 22. Plaintiff seeks actual damages as a result of the sexual harassment and discrimination, which include, but are not limited to back pay from the date of quid pro quo retaliation until the date of trial. Plaintiff also seeks future pay in lost earnings and benefits including the repossession of her automobile lost as a result of her unlawful 23. Plaintiff also seeks damages for past and future mental anguish as a result of Defendant Jones explicitly forcing her to choose between the sexual abuse 24. Defendant Jones acted with malice toward Plaintiff in that Jones exhibited conscious indifference to consequences Plaintiff might suffer separate and apart from the damages suffered as a result of the retaliation. Defendant Jones, as President and CEO, has inflicted additional injuries by circulating malicious rumors about the Plaintiff at corporate headquarters. Plaintiff therefore seeks exemplary 25. On or about March 27, 2013, when Plaintiff Faire was temporarily living in the Dominican Republic at the request of Defendant Jones, taking care of Jones’ child Astin, working on a 24/7 hour basis, Defendant Jones promised to buy a home and gift it to Plaintiff upon their return to San Antonio, Bexar County, Texas. 26. On or about July 20 2014, Plaintiff moved into the house at 8647 Timber Pl, San Antonio, Texas 78250, that Defendant Jones gifted her in his individual capacity but with the knowledge and consent of all Defendants. Plaintiff is still living at her home, taking possession under the present gift. 27. Plaintiff has made permanent and valuable improvement to the home based on the reliance of the gift made to her by Defendant Jones as an individual. 28. It was reasonable for Plaintiff to rely on Defendant Jones’ promise of an oral gift of real estate based on Defendant Jones’ financial resources, including but not limited to ownership in franchises of Zio’s Italian Kitchen, Buffalo Wild Wings, Don Pablo’s Big Tex Bold Mex, Furr’s, Little Ceasar’s and Smashburger. 29. Further, Defendant Jones boasts of having presently one million dollars worth of cars and extensive real estate holdings in the state. In other judicial proceedings, Defendant Jones bragged about owning 150 businesses and having financial resources to “buy” a young lady from a brothel for $10,000.00 in the Dominican Republic where he also has extensive real estate holdings. 30. Defendant Jones informed the Plaintiff that he was buying the house from Defendant Kemp, and that at closing, he would give her full title and interest to the home. Defendants Jones further promised the closing would take place immediately upon the reaching of an agreement on the final price and other terms. A final purchase price was reached between Defendant Jones and Defendant Jason Kemp. All terms for the sale of the house were reached by buyer and seller, and having absolutely nothing to do with the business of the corporate entities, parties herein 31. Defendant Jones negotiated all the terms of the real estate purchase to make a present gift of real estate to Plaintiff. Defendant Jones, Defendant Kemp, and Defendant Donbavand knew the house located at 8647 Timber Pl, San Antonio, TX 78250 purchased from Kemp’s wife, Tara Kemp, was a gift of real estate to the Plaintiff. Defendant Donbavand ordered an inspection of the home in furtherance of a prompt closing, all outside of the course and scope of corporate business.. 32. Defendant Jones made this gift to Plaintiff as an individual and not as President & CEO of the other corporate defendants. Defendant Jones purchased the home from Defendant Kemp as an individual and not as a transaction within the necessary documentation and transactions outside the course and scope of 8 corporate business. Defendant Donbavand routinely acts as Defendant Jones’ personal aide to carry out his orders regarding personal matters. Defendant Donbavand is experienced in real estate transactions and worked to completing the necessary documents. In the meantime, in a fit of retaliation, Defendant Jones changed his mind about the gift. Plaintiff has been living in the house for eight 34. Plaintiff asserts this oral gift of real estate must be enforced in equity as the facts herein establish a gift of real estate, notwithstanding the requirements of 35. Defendants Peter Donbavand and Jason Kemp, as individuals acting outside their corporate duties, assisted Defendant Jones in conduct which they knew amounted to a commission of a tort or wrongful acts against the Plaintiff, and specifically acting to rescind the oral gift of real estate to Plaintiff 36. Defendant Donbavand and Defendant Kemp acted with intent to assist Defendant Jones in his wrongful acts toward Plaintiff of attempting to rescind the 37. Defendant Donbavand and Defendant Kemp’s assistance to Defendant Jones and their own related conduct was a substantial factor in the breach of the present gift Defendant Jones made to Plaintiff. COUNT 3 QUID PRO QUO SEXUAL HARASSMENT 38. Plaintiff was an employee of Defendants FMP, ALL JONES and their subsidiaries, and her duties were to serve as a personal assistant to the Defendant Allen J. Jones, the President and CEO of Defendant FMP. Plaintiff was a self- supporting divorced woman with no financial resources other than her wages. Plaintiff also had an exemplary work history prior to working for Defendants. 39. Plaintiff raises this claim under Tex. Lab. Code Ann. §§ 21.001, .051 (West 1996), which prohibits discrimination on the basis of sex. 40. On or about January 21, 2013 Defendant Jones made sexual advances toward Plaintiff, a very attractive woman. Defendant Jones then demanded physical conduct of a sexual nature. Defendant Jones’s demands escalated and the mental abuse was so extreme that it prevented Plaintiff from defending herself. 41. Defendant Jones made it cleared to the Plaintiff that continued employment as well as other job benefits were conditioned on her acceptance of the 42. At the time of the harassment, Defendant Jones was the President and CEO of the Food Management Partners, a Texas LLC. At all times, Defendant Jones held himself out to Plaintiff and to the public, as a very powerful business man, and owner of 150 businesses. Defendant Jones instilled fear of his financial power on Plaintiff. There was no recourse available to the Plaintiff to complain. 10 43. Plaintiff was harmed by the physical sexual conduct perpetrated against her by Defendant Jones. Plaintiff’s harm was directly and proximately cause by Defendant Jones sexual harassment. When Plaintiff was mentally well enough to, she refused to further submit to Defendant Jones’ inappropriate requests she was 44. Plaintiff seeks compensatory damages for lost wages, lost benefits and future employment opportunities based on her traumatic experience at the hand of 45. Plaintiff seeks exemplary damages based on Defendant Jones’s history of sexual harassment of others and including the purchase of a female as if she was 46. Further, Plaintiff seeks exemplary damages against Defendant Donbavand and Defendant Kemp, as her injury resulted from Defendants’ malice, which entitles Plaintiff to exemplary damages under Tex. Civ. P. & Remedies Code 47. Plaintiff has demanded a jury trial and tendered the appropriate fee with her original petition. The jury trail has been set for November 2, 2015. CONDITIONS PRECEDENT 48. All conditions precedent to plaintiff’s claim for relief have been performed or 49. Plaintiff objects to the referral of this case to an associate judge for For these reasons, Plaintiff asks that Defendants be cited to appear and answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for b. Economic and non-economic damages including, but not limited to back pay, front pay, severance pay, specific performance regarding the gift purchase of a home (or its monetary equivalent). LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net By: /s/ Olga Brown_________ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff I do hereby certify that on the 10th day of March 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Fourth Amended Original Petition was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN Tab 5 CAUSE NO. 2014-CI-16674 CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, § INDIVIDUALLY, AND § PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF’S MOTION FOR RECONSIDERATION/NEW TRIAL NOW COMES PLAINTIFF, CEARTH FAIRE, who herein requests this Court to reconsider this Court’s granting of Defendants’ Rule 91a Motion to Dismiss her claims of oral gift of real estate and conspiracy. In support of such request Petitioner would show this Court as follows: At the March 18, 2015 hearing, Movants based their arguments on complaints of the pleadings more in the light of a no-evidence summary motion or request for special exception relief. This is not the basis for determining whether Petitioner’s causes of action have merit at this particular stage of litigation. _____________________________________________________________________________________________ 1 PLAINTIFF’s Motion for Reconsideration. /New Trial Petitioner clearly pled each element for her cause of action for oral gift of real estate and conspiracy to defraud by succinctly and factually addressing each element of her claims. Whether or not those facts support her allegations is a matter for another motion in the future. At this stage, the reasonable inferences reasonably drawn from them is sufficient to for this court to deny the Rule 91a Motion. But, more importantly, Movants failed to properly plead their own Motion. The Movants failed to meet the requirements of the Dismissal Rule. On February 3, 2015, Defendants filed an Amended Motion for Partial Dismissal of Plaintiff’s claim of promissory estoppel. But prior to the hearing, Plaintiff had timely filed her Fourth Amended Original Petition, eliminating the cause of action for promissory estoppel, and included a claim for Oral Promise of Real Estate, separate and distinct from promissory estoppel as a cause of action. Movant’s motion did not include a challenge to the new cause of action. TRCP 91a: Dismissal of Baseless Causes of Action clearly makes strict requirements of the Movant. This requirement is not one of an onerous nature. Movants were simply required to meet the requirements of TRCP 91a.2 which mandates that movant identify each cause of action to which the motion is addressed. Further, movant must state specifically, the reasons the cause of action has no basis in law and no basis in fact or both. _____________________________________________________________________________________________ 2 PLAINTIFF’s Motion for Reconsideration. /New Trial Movants failed to do both. Instead and mistakenly, Movants argued the cause of action of promissory estoppel, which was no longer a part of the Fourth Amended Original Petition, the live pleadings. Movants were further mistaken at the time of the hearing by arguing evidence regarding Plaintiff’s claims. It is undisputed that Rule 91a.7 mandates that the court may not consider evidence in ruling on the Motion. The court must decide the motion based solely on the pleading of the cause of action. The pleading of the oral gift of real estate was unchallenged in the amended dismissal motion, therefore the claim must stand and proceed to a trier of fact. Movants further failed to plead and prove an award of attorney fees. It is also a requirement of the Rule. This court has properly stricken the award from Movant’s order. Likewise, this court should also deny their motion to eliminate Petitioner’s claim for oral gift of real estate. Movants again failed to address the cause of action of conspiracy that was properly plead by Petitioner. In their Amended Motion for Dismissal of Conspiracy, they address the issue of conspiracy as being barred by Intra- Corporate Immunity Doctrine. After Petitioner amends her pleadings and alleges _____________________________________________________________________________________________ 3 PLAINTIFF’s Motion for Reconsideration. /New Trial that each defendant was acting outside the scope of the corporate responsibility, Movant failed again to address the issue in his Amended Motion 91a which requires specificity in the challenges to the cause of action. Movants failed to specifically state the reason(s) there is no basis in law or no basis in fact or both. Movants were required by to include in the contents of their motion a challenge to the individual acts of each defendant. A conclusory statement of an alleged affirmative defense is not sufficient to meet the requirements of Rule 91a.2. Petitioner is prepared to challenge Movants’ slide show of misstatements of law and of facts and presented to this court. Movants’ email traffic supports Petitioner’s claims of the individual acts of conspiracy in relation to the Defendant Jones’ oral promise of real estate to Petitioner. Movants’ counsel’s own words at time of hearing should persuade this court to reconsider the granting of their Motion to Dismiss. Mr. Justin Barbour’s own words were as follows: “……just as we’re bound by plaintiff’s live pleadings, in determining whether or not the Rule 91a motion should be granted, I believe the plaintiff should be as well….” _____________________________________________________________________________________________ 4 PLAINTIFF’s Motion for Reconsideration. /New Trial The Plaintiff’s live pleadings include the cause of action of oral gift of real estate. The contents of Movants’ Amended Rule 91a motion do not challenge that specific cause of action. Further, the Movants’ live pleadings also do not specifically challenge the conspiracy action. The Movants had the burden to properly plead their Rule 91a motion by simply identifying in their motion each cause of action they challenge and state specifically the reasons the cause of action has no basis in law or in fact or both. Movants failed to meet this burden. Movants are in agreement, parties are bound by their pleadings. Movants’ pleadings do not support a granting of the motion. Defendants’ self- serving interpretation of Plaintiff’s pleadings do not meet the strict requirement of the Rule. This court therefore should reconsider its ruling in this matter and deny Defendants’ Motion to Dismiss. Plaintiff seeks attorneys fees and costs accordingly, and respectfully requests the Court grant her attorney fees and costs in defending this matter. WHEREFORE ALL PREMISES CONSIDERED , Plaintiff Faire prays that after notice and hearing, this court reconsider its original judgment, deny Defendants’ Motion to Dismiss, and, in the alternative, grant an Order for New Trial. Plaintiff prays for attorneys’ fees and costs. Plaintiff prays for all other and further relief to which she is entitled. _____________________________________________________________________________________________ 5 PLAINTIFF’s Motion for Reconsideration. /New Trial Respectfully submitted: By: _/s/ Olga Brown___________ LAW OFFICES OF OLGA BROWN OLGA BROWN State Bar No. 03155500 111 Soledad, Suite 1725 San Antonio, Texas 78205 Telephone: 210/226-1550 Telecopier: 210/226-1884 Argyle2@sbcglobal.net Attorney for Plaintiff NOTICE OF HEARING IT IS HEREBY ORDERED that the above styled and numbered cause is set for hearing before Judge Antonia Arteaga on the 28th day of April 2015 at 11:30 a.m., 57th Judicial District Court, Bexar County Courthouse, San Antonio, Texas. SIGNED this ______ day of April, 2015. ________________________ HON. ANTONIA ARTEAGA I certify that a true and correct copy of the above and foregoing Motion for Reconsideration was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on this 21st day of April 2015. : /s/ Olga Brown_______ OLGA BROWN _____________________________________________________________________________________________ 6 PLAINTIFF’s Motion for Reconsideration. /New Trial Tab 6 Rule 91A Motions to Dismiss Chapter 4 TABLE OF CONTENTS I Legislative History of Rule 9la .1 A Statutory Foundation for Rule 91 a 1. The Legislature's Sketch of Rule 9la. ..... 1 2.. Mandatory Award of Attorney's Fees to Prevailing Pruty . .1 B Adoption of Rule 9la ..... . .... 2 II Nuts and Bolts of a Rule 91 a Motion to Dismiss 3 A Scope of Rule 9la's Application .... ........... 3 B. Rule 9la's Basis for Dismissal . ............. 4 1 No Basis in Law . 4 a A claim may be dismissed when the cause of action alleged is not recognized by Texas law. . ................ 4 b A claim may be dismissed based on the facts alleged in the pleading.. 4 c. A claim may be dismissed based on exhibits attached to any pleadings pursuant to Rule. 59 . 5 2. No Basis in Fact. 5 C. Rule 91 a Deadlines .5 I. Filing the Motion ... 5 2 Setting a Heming ..... . ....... 5 3. Responding to the Motion . ············· 6 4. Obtaining a Ruling on the Motion . ..... 6 D ContentsofaRule9laMotion ... 6 E Mandatory A wrud of Attomey Fees 6 III Will Rule 9la Prove to be a Usefol Tool? .. .6 L Rule 91A Motions to Dismiss Chapter 4 TABLE OF AUTHORITIES Cases Birdo v Williams, 859 S.W2d 571 (Tex. App-Houston (!st Dist] 1993, no writ)... 5 Boyles v. Kerr, 855 S..W.2d 593 (I ex. 1993) .4 Centennial Ins v. Commercial Union Ins, 803 SW 2d 479 (Tex. App -Houston [14th Dist] 1991, no writ) 3 City of Keller v. Wilson, 168 S.WJd 802 (Tex. 2005) ...... 4 Delgado v Methodist Ho.sp, 936 S W2d 479 (Tex. App -Houston [14th Dist] 1996, no WI it) ....... 5 Fort BendCountyv Wilson, 825 S W2d 251 (Tex. App . -Houston [14th Dist] 1992, no writ). .3 GTE Comm'n Sys. v. Janner, 856 S. W.2d 725 (Tex . 1993)... . ... .A Hamilton v. Pechacek, 319 S.W 3d 801 (Tex. App-Fort Worth 2010, no pet) 4 Moselq v Hernandez, 797 S. W 2d 240 (Tex. App -Corpus Christi 1990, no writ) ..... 3 Nath v Texas Children's Hosp, 375 SW 3d 403 (Tex. App -Houston [14th Dist] 2012, pet filed) .5 Scott v. Gallagher, 209 S WJd 262 (Tex. App -Houston [!st Dist] 2006, no pet) A, 5 Tex &NewOrleansRR Co v Compton, 136S.W2d 1113(1940) ...... 5 Winters v. Parker, 178 S W3d 103 (Tex App . -Houston [!st Dist] 2005, no pet) ... 7 Statutes TEX Crv PRAC &REM.CODE§ 14002 . .3 \' TEX crv. PRAC. & REM. CODE § 14 . 003 3,4 TEX Gov' I CODE § 22 .004(g) . 3,5 Rules FED R Crv p 12(b)(6) . .3 TEX R crv p 13. 4 TEX R Crv p 47(a). 5 TEXR Crv p 91a . . passim Session Laws Act of May 25, 2011, 82nd Leg., R.S., ch. 203 (HB 274} . . I, 6 Articles Angela Morris, Texas Lawyer Blog (Nov 16, 2012), http://texaslawyertypepad . com/texas_ lawyer_blog /2012/11 /high-court-approves-rules-for-dismissal-expedited-proceedings . html . . .6 Justices Jane Bland, Bill Boyce, and Greg Perkes, What's Appealing About the New Di.smissal and Expedited Trial Rules?, presented at the 23rd Annual Conference on State and Federal Appeals, June 13-14, 2013 3 !Ort Reform Clo.sing the Lottery, THE ECONOMIST, Dec. IO, 2011; see also Press Release fiom the Office of Gov Rick Perry, Lawsuit Reforms Cut Down on Frivolous Claims, Expedite Justice for the Deserving (July 27, 2011 ), http://governor .state tx us/news/press-release/I 6430/ . I ii Rule 91A Motions to Dismiss Chapter 4 SECTION 1.01 Amends Section 22 . 004, RULE 91A MOTIONS TO Government Code, by adding Subsection DISMISS (g), as follows: I. LEGISLATIVE HISTORY OF RULE 91A (g) The supreme comt shall Earlie1 this yea1, the Texas Sup1eme Court adopt rules to p1ovide fo1 the app1oved Texas Rule of Civil Procedme 9la, which dismissal of causes of action that allows defendants to seek dismissal of any cause of have no basis in law 01 fact on action that has no basis in law 01 fact motion and without evidence. Rule 9la introduces Texas lawye1s to a new The mies shall provide that the motion to dismiss that is one of the many production motion to dismiss shall be of House Bill 274, which became effective on granted 01 denied within 45 days Septembet l, 2011. 1 House Bill 274 gained national of the filing of the motion to attention as a "loser pays" tOJt refotm law intended to dismiss The mies shall not apply streamline litigation and discourage ftivolous to actions under the Family Code lawsuits . 2 To accomplish these goals, the Legislatme enacted a statute requesting that the Texas Supreme 2 Mandatory Awrud of Attorney's Fees to Comt to draft and adopt mies creating a new motion Prevailing Patty to dismiss with a mandato1y award of attorney's fees The second statute added by House Bill 2 74 to the prevailing patty. provides fo1 a mandato1y award of attorney's fees to Rule 9la's motion to dismiss p1ovides an the prevailing patty oppo1tunity for a defendant to obtain an expeditious dismissal of meritless causes of actions Although SECTION 1 02.. Amends Chapter 30, Rule 91 a provides litigators with a potentially useful Civil Practice and Remedies Code, by tool, the rule's mandato1y awrud of attorney's fees to adding Section 30 . 021, as follows: the prevailing pa1ty will dete1 many from using its procedures rathe1 than othe1, less expeditious, Sec 30021 AWARD OF methods for obtaining a pre-trial dismissal of ATTORNEY'S FEES IN / I metitless claims RELATION TO CERTAIN ' MOTIONS TO DISMISS. A.. Statutory Foundation for Rule 91a Requires the comt, in a civil House Bill 274 adds two statutes-section proceeding, on a ttial comt's 22 004(g) in the I exas Government Code and section granting 01 denial, in whole 01 in 30 . 021 in the Texas Civil Practice and Remedies prut, of a motion to dismiss filed Code-that lay the foundation for Rule 91 a and its unde1 the mies adopted by the mandatmy awrud of attorney's fees supreme comt under Section 22 .004(g), Government Code, to 1. The Legislature's Sketch of Rule 9la awrud costs and ieasonable and The first statute added by House Bill 274 gives necessary attorney's fees to the the Texas Supreme Comt the task of adopting mies prevailing patty. Provides that creating a motion to dismiss claims that have no basis this section does not apply to in law 01 fact: actions by 01 against the state, other governmental entities, 01 public officials acting in theiI official capacity or under colo1 of law 1 See Act of May 25, 2011, 82nd Leg., RS, ch 203 (HB 274) In response to these statuto1y directives, the Texas Supreme Comt adopted Rule 91 a. 2 See Tort Reform Clo.sing the Lottery, IHE ECONOMIST, Dec 10, 2011; see also Press Release from the Office of Gov Rick Perry, Lawsuit Reforms Cut Down on Frivolous Claims, Expedite Justice for the Des·erving (July 27, 2011), http://govemor state tx us/news/press- release/16430/ Rule 91A Motions to Dismiss Chapter 4 B.. Adoption of Rule 91a Ihe Texas Supreme Court adopted Rule 9la on (a) Ihe court may not rule on a February 12, 2013.. 3 Rule 9la provides the following motion to dismiss if, at least 3 rules: days before the date of the hearing, the respondent files a 91a. Dismissal of Baseless Causes of nonsuit of the challenged cause of Action action, or the movant files a withdrawal of the motion. 91a .. 1 Motion and Grounds.. Except in a case brought under the Family Code or (b) If the respondent amends the a case governed by Chapter 14 of the challenged cause of action at least I exas Civil Practice and Remedies Code, 3 days before the date of the a party may move to dismiss a cause of heating, the movant may, before action on the grounds that it has no basis the date of the hearing, file a in law or fact. A cause of action has no withdrawal of the motion or an basis in law if the allegations, taken as amended motion directed to the true, together with inferences reasonably amended cause of action. drawn from them, do not entitle the claimant to the relief sought A cause of (c) Except by agreement of the action has no basis in fact if no parties, the court must rule on a reasonable person could believe the facts motion unless it has been pleaded . withdrawn or the cause of action has been nonsuited in accordance 91a.2 Contents of Motion .. A motion to with (a) or (b) In ruling on the dismiss must state that it is made pursuant motion, the court must not to this rule, must identify each cause of consider a nonsuit or amendment action to which it is addressed, and must not filed as permitted by state specifically the reasons the cause of paragraphs (a) or (b) action has no basis in law, no basis in fact, or both (d) An amended motion filed in accordance with (b) restarts the 91a.3 Time for Motion and Ruling.. A time periods in this rule . motion to dismiss must be: 91a ..6 Hearing; No Evidence (a) filed within 60 days after the first Considered.. Each party is entitled to at pleading containing the least 14 days' notice of the hearing on the challenged cause of action is motion to dismiss Ihe court may, but is served on the movant; not required to, conduct an oral hearing on the motion. Except as required by (b) filed at least 21 days before the 9la.7, the court may not consider motion is heard; and evidence in ruling on the motion and must decide the motion based solely on the (c) gr anted or denied within 45 days pleading of the cause of action, together after the motion is filed . with any pleading exhibits permitted by Rule 59 91a.4 Time for Response.. Any response to the motion must be filed no 91a . 7 Award of Costs and Attorney later than 7 days before the date of the Fees Required.. Except in an action by or hearing. against a governmental entity or a public official acting in his or her official 91a.5 Eflect of Nonsuit or capacity or under color of law, the court Amendment; Withdrawal of Motion. must award the prevailing party on the motion all costs and reasonable and I" necessary attorney fees incurred with 3 See TEX R Clv P 91 a, comment to 2013 '-.,----- change respect to the challenged cause of action 2 Rule 91A Motions to Dismiss Chapter 4 in the trial court The court must consider by Rule 12(b)(6) of the Federal Rules of Civil evidence regarding costs and fees in Procedure because it allows a defendant to move for ~ determining the award dismissal without filing a special exception and then a I summary judgment. 4 Unlike Rule 12(b)(6), which 91a .. 8 Eflect on Venue and Personal merely allows a party to file a motion asserting that Jurisdiction. This rule is not an the opposing party's pleading does not state a claim exception to the pleading requirement of upon which relief can be granted, 5 Rule 9Ia contains Rules 86 and I 20a, but a party does not, a number of rules specifically governing its motions by filing a motion to dismiss pursuant to to dismiss this rule or obtaining a ruling on it, waive a special appearance or a motion to A. Scope of Rule 91a 's Application transfer venue. By filing a motion to Rule 9Ia generally applies to all civil dismiss, a party submits to the court's proceedings with two exceptions First, as required jurisdiction only in proceedings on the by the Legislature, Rule 9Ia does not apply to cases motion and is bound by the court's ruling, brought under the F amity Code . 6 Second, Rule 9 I a including an award of attorney fees and does not apply to inmates' in /Olma pauperis costs against the party . lawsuits, which are governed by Chapter I 4 of the Texas Civil Practice and Remedies Code 7 91a . 9 Dismissal Procedure (Chapter I 4 contains its own distinct dismissal Cumulative.. This rule is in addition to, mechanism 8) and does not supersede or affect, other procedures that authorize dismissal. 4 See, e g, Justices Jane Bland, Bill Boyce, and Comment to 2013 change: Rule 9la is a Greg Perkes, What's Appealing About the New Dismissal and Expedited Trial Rules?, presented at new rule implementing section 22. 004(g) the 23rd Annual Conference on State and Federal of the Texas Government Code, which Appeals, June 13-14, 2013, at I, 7-10 (citing Fort was added in 20 I I and calls for rules to Bend County v Wilson, 825 S.W2d 251, 253 (Tex provide for the dismissal of causes of App -Houston [I 4th Dist] I 992, no writ); I action that have no basis in law or fact on C'entennial Ins v. Commercial Union Ins , 803 ' motion and without evidence. A motion S.W2d 479, 482 (Tex. App.-Houston (14th Dist] to dismiss filed under this rule must be 1991, no writ); and Moseley v Hernandez, 797 ruled on by the court within 45 days S W 2d 240, 242 (Tex App -Corpus Christi I 990, unless the motion, pleading, or cause of no writ) action is withdrawn, amended, or 5 FED R Clv P 12(b)(6). nonsuited as specified in 91 as. If an amended motion is filed in response to an 6 TEX R C!V P. 9la I; TEX Gov'r CODE § amended cause of action in accordance 22.004(g) ("The rules shall not apply to actions with 91a5(b), the court must rule on the under the Family Code . "). motion within 45 days of the filing of the 7 amended motion and the respondent must TEX. R Clv p 9la I; '"e TEX. C!V PRAC & REM CODE§ 14 . 002 be given an opportunity to respond to the amended motion The term "hearing" in 8 TEx. CIV PRAC. & REM CODE§ 14 003 Section the rule includes both submission and an 14 003 allows for dismissal of an inmate's claim ifa oral hearing Attorney fees awarded court finds that the allegation of poverty in the under 9Ia.7 are limited to those affidavit or unsworn declarations is false, the claim associated with the challenged cause of is frivolous or ·malicious, or the inmate filed the action, including fees for preparing or required affidavit or unsworn declaration knowing responding to the motion to dismiss . that it was false Id. § 14 003(a) In determining whether a claim is frivolous or malicious, a trial court may consider whether the claim's realistic II.. NUIS AND BOLTS OF A RULE 91A chance of ultimate success is slight, the claim has no MOTION TO DISMISS arguable basis in law or in fact, it is clear that the party cannot prove facts in support of the claim, or Rule 9 I a provides guidelines for a new motion the claim is substantially similar to a previous claim to dismiss, which has been widely compar·ed, and not filed by the inmate because the claim arises from the entirely accurately, to the motion to dismiss allowed same operative facts 3 Rule 91A Motions to Dismiss Chapter 4 R Rule 91a 's Basis for Dismissal prevents a court from considering evidence . 15 This Rule 9ia allows dismissal of any cause of lack of evidentiary and factual issues focuses a ~' action that "has no basis in law or fact " 9 This same court's inquiry under Rule 9la ' pluase is also used in Rule 13 10 and a substantially Courts are likely to dismiss causes of action similar phrase is used in Chapter l 4ll Texas under Rule 91 a in three circumstances: (I) when the appellate courts have analyzed the meaning of this cause of action is not recognized by Texas law; phrase in reviewing sanctions imposed under Rule 13 (2) when the pleading alleges facts that negate a and dismissals under Chapter 14 The existing cause of action; and (3) when pleading exhibits, jurisprudence regarding these rules and statutes may attached pursuant to Rule 59, demonstrate that provide some guidance in understanding Rule 9la; claimant is not entitled to the relief sought as a matter however, certain distinct differences among the law. schemes undermine the similarities and make direct comparisons difficult a A claim may be dismissed when the cause of action alleged is not recognized by Texas law. L No Basis in Law Courts need not delve into any evidence to Under Rule 91a, a claim has no basis in law if determine whether a cause of action is recognized by "the allegations, taken as true, together with Texas law When a claimant alleges a cause of action inferences reasonably drawn from them, do not entitle that is not recognized by Texas law (e . g ., a claim for the claimant to the relief sought." 12 Rule 91a's negligent infliction of emotional distress), 16 the cause analysis of the legal basis for the relief a plaintiff of action could be dismissed under Rule 9la seeks presents a relatively straightforward question: Interestingly, unlike Rule 13, Rule 91a does not Do the allegations in the pleadin& state a cause of recognize that a claim might have a basis in law if action that would authorize relief? 1 "warranted by good faith argument for the extension, 17 Unlike Rule 13, Rule 91a does not require a modification, or reversal of existing law.." The trial court to engage in any factual determination absence of this language may indicate that Rule 91a regarding the motives involved in filing the pleaded provides a more stringent test for a claimant's legal allegations 14 Io the contrary, Rule 91a expressly contentions than Rule 13 9 ( TEX R Crv p 9lal b A claim may be dismissed based on the facts ' alleged in the pleading 10 Rule 13 permits sanctions against an attorneys Dismissal under this portion of Rule 9la may and parties who file a "groundless" pleading in bad be appropriate when the pleading, on its face, reveals faith or for the purpose of harassment TEX R. Crv that a claimant is not entitled to the relief sought P. 13 Rule 13 defines "groundless" as "no basis in because the alleged facts are legally insufficient to law or fact and not warranted by good faith argument for the extension, modification, or reversal provide the claimant with a valid cause of action of existing law . " Id Such allegations, even taken as true, would not entitle a claimant to any relief. 18 11 TEX CIV PRAC. & REM. CODE § 14 003(a) For example, dismissal under Rule 91 a may be (stating that in determining whether to dismiss a appropriate if a plaintiff alleges that by not erecting a claim, a court may consider whether "the claim has railroad crossing sign a railroad company negligently no atguable basis in law or in fact" (emphasis caused an automobile to drive into the sixtieth car of added)) a slow-moving train because if the automobile's 12 Id driver could not see the train, he could not have seen 13 see Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex . App-Houston [!st Dist] 2006, no pet); Hamilton v Pechacek, 319 SWJd 801, 809 (Tex 15 App . -Fort Worth 2010, no pet) (explaining that a TEX R Crv P 9la.6. claim has no arguable basis in I.aw under Chapter 14 16 if the claim presents an "indispuiably meritless legal &e Boyles v Ken, 855 S.W.2d 593, 594 (Tex theory") 1993) 17 14 See GTE Comm 'n Sys. v Tanner, 856 SW 2d Compare TEX. R Crv P 9la. l with TEX. R Crv 725, 731 (Tex. 1993) (explaining that Rule 13 does p 13 not allow sanctions unless the pleading is groundless (_ and is also brought in bad faith or for the purpose of 18 See City of Keller v Wilson, 168 S.W 3d 802, harassment). 811-17 (Tex 2005). 4 Rule 91A Motions to Dismiss Chapter 4 a crossing sign either. 19 These facts, even taken as court dismisses a claim under Chapter 14 without an trne, would not entitle a claimant to any relief'0 evidentiary hearing, appellate courts presume that the Rule 91a dismissal is unlikely to be applicable claim must have been dismissed for having no in most cases based on facts alleged in a pleading arguable basis in law rather than in fact") Rule 91a, because in most circumstances, claimants are able to on the other hand, expressly for bids any evidentiary allege facts that satisfy Texas's notice pleading hearing 26 requirements21 while avoiding the specificity that Absent an evidentiary hearing, one might ask could result in dismissal of their claims how a court could possibly evaluate whether a pleading advances facts that no reasonable person c A claim may be dismissed based on exhibits could believe." And if a trial court does dismiss a attached to any pleadings pursuant to Rule 59 claim as having no basis in fact, what does that Rule 91 a allows courts to consider exhibits indicate about the attorney who filed the petition? attached to a pleading pursuant to Rule 59,2' Thus, if the parties simply disagree over the proper C Rule 91a Deadlines foterpretation of a document attached to a pleading Rule 91 a guarantees a ruling on a motion to pursuant to Rule 59, a Rule 91a motion to dismiss dismiss no later than 45 days from the date the motion may provide a procedural vehicle well-suited to is filed 28 This deadline, along with others in Rule resolving such a dispute. For example, in an 91 a, promises a speedy resolution of the motion to insurance coverage dispute in which the facts are not dismiss disputed and the insurance policy is attached to the pleadings, Rule 91a may provide a procedural vehicle Filing the Motion for obtaining an expeditious ruling on coverage . A party must decide whether to file a Rule 91 a motion to dismiss soon after the petition is served 2 No Basis in Fact The motion must be filed within 60 days after service Rule 91 a states that a claim has no basis in fact of the first pleading containing the challenged cause if "no reasonable person could believe the facts of action. 29 Rule 91a does not provide an exception pleaded " 23 This definition seems difficult to apply in to the due order of pleading requirements for motions the absence of any evidence to place the pleaded facts to transfer venue and special appearances. But a in context party can file and obtain a ruling on a Rule 91 a ( Neither Rule 13 nor Chapter 14 provide any motion to dismiss without waivin~ a special help with this problematic definition because both appearance or motion to transfer venue 3 allow for evidentiary hearings . 24 (Jn fact, when a 2 Setting a Hearing 19 Id at 816 (citing Tex & New Orleans RR Co v The motion to dismiss must be filed at least 21 Compton, 136 SW 2d 1113, 1115 (1940)) days before the motion is heard and may be withdrawn until 3 days before the hearing 31 When 20 Id 25 21 See, e g, SCott, 209 S W .3d at 266 See TEX. R Crv P 47(a) (stating that a pleading 26 should include "a short statement of the cause of TEX. R Clv P. 91a 6 (implementing TEX GOV'! action sufficient to give fair notice of the claim CODE § 22 004(g), which requires implementation of involved"). rules for dismissal of causes of action that have no 22 basis in law or fact on motion and without evidence) TEX R Crv. p 91a 6 27 23 Birdo v Williams, 859 S.W.2d 571, 572 (Tex Id App-Houston [!st Dist] 1993, no writ) ("When 24 the trial court, as in the present case, dismisses a see Nath v Texas Chi!dren'.s Hosp, 375 S.WJd cause [pursuant to Chapter 14] without a fact 403, 427 (Tex. App.-Houston [14th Dist] 2012, hearing, the trial court could not have determined the pet. filed) (explaining that a trial court may examine suit had no arguable basis in fact" (emphasis the facts and circumstances at the time of filing the added)) petition in order to determine whether a claim is without evidentiary support, i.e., has no basis in fact 28 IEX.R CIV P 91aJ(c) or law); Delgado v. Methodist Hosp, 936 S W.2d 29 479, 487-88 (Tex. App.-Houston [14th Dist] TEX. R CIV. p 91aJ(a) 1996, no writ) (finding a claim to be groundless (___ under Chapter 14 when the plaintiff presented no 30 TEX R CIV P 9!a.8. evidence of"extreme and outrageous" conduct) . 31 TEX R Clv P 91a 3(b), 9la 5(a) 5 Rule 91A Motions to Dismiss Chapter 4 setting a Rule 9la hearing, a paity should be awaie determination to the contents of the motion to that the trial court's deadline to rnle on the motion is dismiss r-- calculated from the date the motion is filed, not from 1 the date of the hearing 32 The court is not required to E.. Mandatory Award of Attorney Fees conduct an oral hearing on the motion 33 Rule 9la includes a mandatory award of"costs and reasonable and necessaiy attorney fees incurred 3.. Responding to the Motion with respect to the challenged cause of action in the A respondent must file its response to the trial court" to the prevailing party 41 This provision motion no later than 7 days before the motion is implements section 30 .021 of the Civil Practice & heaid .34 Up until 3 days before the motion is heard, a Remedies Code, which was enacted by House Bill claimant may either nonsuit or ainend the challenged 274 42 cause of action 35 In the original version of House Bill 274, If the respondent ainends the challenged cause section 30 021 would have "authorized" a tiial court of action at least 3 days before the date of the hem ing, to award costs and attorney's fees However, during the movant may withdraw the motion or file an the legislative process, the Legislature changed this ainended motion at any time before the hearing 36 discretionaiy awaid of costs and attorney's fees to a Filing an ainended motion in response to an amended mandatory award cause of action, restarts Rule 9la's time periods . 37 In speaking about Rule 9la, one Texas Supreme Court justice has recognized that the 4.. Obtaining a Ruling on the Motion mandatory award of attorneys' fees may affect the Unless the movant timely withdraws the motion frequency with which 9la motions ai·e filed: or the respondent timely nonsuits the challenged cause of action, a trial court must rule on the motion Whether the motion is granted or denied, absent an agreement of the parties to the contrmy 38 the winning paity gets attorney fees So, Notwithstanding any agreement of the paities, if you file a motion and lose, the other the trial court must grant or deny the motion no later side gets attorney fees So, pmties are than 45 days after the date the motion is filed . 39 Rule going to have to think seriously about 9la does not specify what happens if a trial court when to use it 43 rules on a motion to dismiss after this 45-day deadline . III. WILL RULE 91A PROVE IO BE A USEFUL TOOL? n. Contents of a Rule 91a Motion Prior to the adoption of Rule 9la, Texas had no A Rule 9Ia motion to dismiss must: (I) state procedure for expeditiously obtaining dismissal of a that it is made pursuant to the rule, (2) identify each meritless cause of action Parties could obtain the cause of action to which it is addressed, and (3) state same result by other means For example, parties specifically the reasons the cause of action has no could file special exceptions, which could result in basis in law, no basis in fact, or both. 40 These dismissal of the claims if the respondent failed to requirements do not seem particularly onerous for the amend its pleadings after the trial court sustained the movant; however, the rnle does limit the trial court's special exceptions 44 If special exceptions did not 32 See TEX. R CIV. P. 9laJ(c) 41 33 TEX. R C1v. P 91a 6.. This mandatory award TEX. R CIV P 91a 6 does not apply to causes of action by or against a 34 government entity or a public official acting in his or TEX R CIV P 9la4 her official capacity or under color of law Id " TEX. R. C!V. P 91a5 42 See Act of May 25, 2011, 82nd Leg., RS, ch. 36 TEX. R CIV P. 9la5(b) 203, § 102 (HB 274) 43 37 TEX R CIV P 91a 5(d) Angela Morris, Texas Lawyer Blog (Nov. 16, 2012), http://texaslawyer typepad com/texas_ 38 TEX R CIV. P. 91a 5(c) lawyer_blog /201211 I/high-court-approves-rules-for- dismissal-expedited-proceedings .html. 39 TEX R CIV. p 9la3(c). ( 44 See, e.g, Winters v Parker, 178 SWJd 103, "----- 40 TEX R CIV P 91a.2 105-06 (Tex. App.-Houston [!st Dist] 2005, no pet). 6 Rule 91A Motions to Dismiss Chapter 4 result in dismissal, parties could also pursue summary judgment r-, Rule 9la's promise of an expeditious ruling on a motion to dismiss makes it a potentially usefol tool in defending against a claim, but its mandatory award of attorney's fees will make any lawyer pause before using it The costs and attorney fees involved in filing or responding to a motion to dismiss should typically be relatively inexpensive compared to the ultimate cost of trying a case or even obtaining summary judgment Nevertheless, the mandatory award of attorney fees will certainly cause both movants and respondents to approach Rule 91 a with some degree of caution It will no doubt deter many potential movants from filing such a motion. However, it will also place pressure on respondents to take a serious look at the causes of action alleged . As lawyers become familiar with this rule, it will be interesting to see how often Rule 9 la motions are filed and, once filed, how often the motion survives to the hearing without the movant withdrawing the motion or the respondent non-suiting or amending the challenged causes of action. (_ 7 Tab 7 1 1 REPORTER'S RECORD 2 VOLUME 1 OF 1 VOLUME(S) 3 TRIAL COURT CAUSE NO. 2014-CI-16674 4 CEARTH FAIRE IN THE DISTRICT COURT 5 VS .. BEXAR COUNTY, TEXAS 6 FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD MANAGEMENT 7 PARTNERS, LLC, ALL JONES, ALLEN J . JONES, 8 INDIVIDUALLY AND PETER DONBAVAND, INDIVIDUALLY 150TH JUDICIAL DISTRICT 9 10 11 12 MOTION TO ENTER DEFENDANTS' FIRST AMENDED / RULE 91.a PARTIAL MOTION TO DISMISS I 13 14 15 16 On the 9th day of April, 2015, the following 17 proceedings came on to be held in the above-titled 18 19 and numbered cause before the HONORABLE ANTONIA ARTEAGA, Judge Presiding, held in San Antonio, Bexar l 20 County, Texas. 21 Proceedings :reported by computerized stenotype 22 machine. 23 24 25 MARIA E. FATTAHI, CSR, RPR, CRR Auxiliary Official Court Reporter (210) 335-1594 2 1 A P P E A R A N C E S 3 MS . OLGA BROWN SBOT NO. 03155500 4 Attorney at Law 111 Soledad, Ste 1725 5 San Antonio, Texas 78205 Telephone: (210)226-1550 6 ATTORNEY FOR PLAINTIFF 8 MR. JUSTIN BARBOUR 9 SBOT NO. 24055142 Schmoyer Reinhard, LLP · 10 17806 IH 10 West, Ste. 400 San Antonio, Texas 7 82 5 7 11 Telephone: (210)447-8033 ATTORNEY FOR DEFENDANTS 12 ( 13 14 15 16 17 18 19 20 21 22 23 24 25 ( ' MARIA E. FATTAHI, CSR, RPR, CRR Auxiliary Official Court Reporter (210) 335-1594 3 1 VOLUME 1 OF 1 VOLUME(S) ORDER GRANTING DEFENDANTS' FIRST AMENDED 2 RULE 91a PARTIAL MOTION TO DISMISS 4 APRIL 9' 2015 PAGE VOL. 5 Appearances,. 2 1 6 Index ... 3 1 7 Proceedings.,. 4 1 8 Court's Ruling.,. " •) ., . " 7 l 9 Adjournment .. ' .. . " " " 7 1 10 Court Reporter's Certificate .. 8 1 12 WITNESS INDEX 15 DEFENDANTS' WITNESS (ES) DIRECT CROSS VOIR DIRE VOL . 16 (None) 18 PLAINTIFF'S EXHIBIT(S) EXHIBIT INDEX II 19 NO . DESCRIPTION OFFERED ADMITTED VOL. ' 20 (None) 21 DEFENDANTS' EXHIBIT($) 22 NO . DESCRIPTION OFFERED ADMITTED VOL. 23 (None) 24 25 ( ' MARIA E,. FATTAHI, CSR, RPR, CRR Auxiliary Official Court Reporter (210) 335-1594 4 l THE COURT: 2014-CI-16674 Cearth Faire 2 versus FMP SA Management Group, d/b/a Food Management, 3 Partners, LLC, All Jones, LLC, Allen J. Jones, 4 Individually and Peter Donbavand, Individually. 5 Let the record reflect that we have Mr. 6 Barbour here on behalf of .... 7 MR. BARBOUR: FMP SA Management. 8 THE COURT: And we have Ms. Brown here on 9 behalf of? 10 MS . BROWN: Cearth Faire. 11 THE COURT: Thank you . And today we're 12 here on a motion to enter, and I have been given the 13 proposed order by Mr. Barbour titled Order Granting 14 Defendant's First Amended Rule 9la Partial Motion to 15 Dismiss. 16 And, specifically, Ms. Brown, what 17 objections, if any, do you have to the language? If you 18 could direct the Court to the exact language, which 19 paragraph, and how you'd like to it be to changed. 20 MS . BROWN: Your Honor, we strictly object 21 to the part of the order that orders the plaintiff's 22 claim for promissory estoppel be dismissed and I have 23 arguments and 24 THE COURT: So specifically is that -- 25 MS . BROWN: and the -- ( MARIA E. FATTAHI, CSR, RPR, CRR Auxiliary Official Court Reporter (210) 335-1594 5 1 THE COURT: Ms. Brown -- 2 MS. BROWN: -- and the 3 THE COURT: Ms. Brown, I need to know 4 specifically is that on Paragraph 2 or paragraph l? 5 MS. BROWN: Where the order reads "it is 6 further ordered that the plaintiff's claim for 7 promissory estoppel,'' I would like for ''promissory 8 estoppel'' to be deleted from the order. 9 THE COURT: And do you believe that -- and 10 you were here initially on what date? 11 MR . BARBOUR: On March 18th, Your Honor. 12 THE COURT: On March 18th, did you -- you ( 13 disagree that the Court granted summary judgment with ' 14 regard to promissory estoppel? 15 MS. BROWN: No, Your Honor. I don't agree 16 with that and here's the reason why. 17 THE COURT: What I want to know is do you 18 believe I ordered it on that day or you do not believe I 19 ordered it that day? ! 20 ' MS. BROWN: You ordered it that day, but I 21 want to state on the record an objection to that because 22 Mr. Barbour misrepresented to you the fact that the rule 23 required for us to nonsuit that claim and that is 24 definitely not what the rule says. 25 THE COURT: I'm sorry, Ms. Brown. On a ( MARIA E. FATTAHI, CSR, RPR, CRR Auxiliary Official Court Reporter (210) 335-1594 6 2 wherein I memorialize what took place in our initial 3 hearing which was in March 4 So if you would like to ask the Court to 5 reconsider, I'd be happy to do that but it needs to be 6 properly in a motion to reconsider . 7 But this today is simply a motion to enter 8 the order that was the Court's back in March 18th of 9 2015. 10 MS . BROWN: But on the other hand, Your 11 Honor, I do not want to try this Rule 91a motion by 12 consent . I 13 I do not want to bring that -- my ' 14 objection to that for the first time in appeal, so I 15 want a record that today before this Court that I have 16 requested and are stating and prepared to argue why the 17 promissory estoppel section of this order must be 18 deleted . 19 THE COURT: I respectfully disagree . 20 Are there any other objections to any 21 other language which you believe the Court did not -- 22 the Court ruled upon and it improperly or not correctly 23 stated according to the Court's rule -- not that you 24 disagree with but you think that any language in here 25 does not reflect the Court's ruling from March? ( MARIA E . FATTAHI, CSR, RPR, CRR Auxiliary Official Court Reporter (210) 335-1594 7 , I 1 MS . BROWN: The other objection that I 2 have, Your Honor, is that Mr. Barbour included in his 3 order that the defendants be awarded reasonable 4 attorney's fees incurred with respect to the challenged 5 causes of action . 6 THE COURT: Would you agree or disagree, 7 Mr. Barbour, that the Court did not award attorney's 8 fees back in March? 9 MR.. BARBOUR: At that time, no, Your 10 Honor, but Rule 91a does make an award of fees mandatory 11 upon granting that motion. 12 THE COURT: Okay.. Again, I did not order 14 today . 15 If you would like for me to reconsider it, 16 you know the pr op er procedure . Your request as to the 17 last sentence of the order requested it is hereby 18 granted . 19 Is there any other objections that you 20 have to the proposed order, Ms. Brown? 21 MS . BROWN: No . None further, Your Honor. 22 Thank you so much . 23 THE COURT: Thank you. Then we'll stand 24 adjourned . Thank you very much. 25 ( MARIA E. FATTAHI, CSR, RPR, CRR Auxiliary Official Court Reporter (210) 335-1594 8 1 STATE OF TEXAS COUNTY OF BEXAR 2 3 I, Maria E. Fattahi, Official Court Reporter in 4 and for the 57th District Court of Bexar, State of 5 Texas, do hereby certify that the above and 6 foregoing contains a true and correct transcription 7 of all portions of evidence and other proceedings 8 requested in writing by counsel for the-parties to 9 be included in this volume of the Reporter's Record 10 in the above-styled and numbered cause, all of which 11 occurred in open court or in chambers and were 12 reported by me . . I 13 I further certify that this Reporter's Record '·· 14 of the proceedings truly and correctly reflects the 15 exhibits, if any, offered by the respective parties. 16 I further certify that the total cost for the 17 preparation of this Reporter's Record is $56.00 and II 18 was paid/will be paid by Ms. Olga Brown. 20 WITNESS MY OFFICIAL HAND on this the 20th day of April, 2015. I 21 /)~Wt£ I 22 23 Haf~t Texas E. Fatta CSR 3566, Exp. Auxiliary Official Court 24 101 W. Nueva, Ste. 301 San Antonio, Texas 78204 25 Telephone: 210-335-1594 E-mail: maria.fattahi@bexar.org ( Tab 8 1 1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME 2 TRIAL COURT CAUSE NO. 2014-CI-16674 3 CEARTH FAIRE ) IN THE DISTRICT COURT 4 ) ) 5 VS. ) 150TH JUDICIAL DISTRICT ) 6 ) FMP SA MANAGEMENT GROUP, LLC, ) 7 ET AL. ) BEXAR COUNTY, TEXAS ******************************************************* 8 MOTION FOR NEW TRIAL 9 ******************************************************* 10 15 On the 6th day of May, 2015, the following came on 16 to be heard in the above-entitled and numbered cause 17 before the Honorable Antonia Arteaga, Judge presiding, 18 held in San Antonio, Bexar County, Texas: 19 Proceedings reported by computerized stenotype 20 machine. 25 2 1 APPEARANCES 3 MR. JEFFREY SMALL SBOT NO. 00793027 4 12451 Starcrest Drive, Suite 100 San Antonio, Texas 78216 5 Phone: (210) 496-0611 Appearing for Cearth Faire 6 7 MS. OLGA BROWN SBOT NO. 03155500 8 111 Soledad Street, Suite 1725 San Antonio, Texas 78205 9 Phone: (210) 226-1550 Appearing for Cearth Faire 10 11 MR. JUSTIN J. BARBOUR SBOT NO. 24055142 12 17806 West IH 10, Suite 400 San Antonio, Texas 78257 13 Phone: (210) 447-8033 Appearing for FMP SA Management Group, LLC, 14 et al. 25 3 1 CHRONOLOGICAL INDEX 2 VOLUME 1 OF 1 3 MARCH 18, 2015 PAGE VOL. 4 Appearances.............................. 2 1 5 Court Reporter's Certificate............. 28 1 6 25 4 1 P R O C E E D I N G S 2 THE COURT: 2014-CI-16674, Cearth Faire 3 versus FMP SA Management Group, LLC, DBA Food Management 4 Partners; All Jones, LLC; Allen J. Jones, individually; 5 and Peter Donbavand, individually. 6 If I could have the attorneys please 7 identify themselves for the record and whom they 8 represent beginning on my left? 9 MR. SMALL: Jeff Small for Cearth Faire. 10 THE COURT: Thank you, Mr. Small. 11 MS. BROWN: Your Honor, Olga Brown, also 12 for Cearth. 13 THE COURT: Good morning, Ms. Brown. 14 MR. BARBOUR: Good morning, Your Honor. 15 Justin Barbour for defendants. 16 THE COURT: Good morning, Mr. Barbour. 17 MR. RAY: Your Honor, I'm Robert Ray. I'm 18 not counsel of record on this matter, but I am counsel 19 of record for one of the defendants in another cause of 20 action that has bearing on this one. 21 THE COURT: Okay. So we're going to let 22 you have a seat and just hang out with us this morning. 23 MR. RAY: If you don't mind. 24 THE COURT: I don't mind at all. 25 MR. RAY: Thank you. 5 1 THE COURT: And it is currently 8:25, and 2 we are scheduled to hear a motion for a new trial. The 3 Court has granted you 60 minutes in order to present, 4 which is highly unusual in the 57th. Ordinarily our 5 motions for new trial are anywhere from 15 to 6 30 minutes, but your legal assistant is quite 7 persuasive, Ms. Brown. So we agreed to go ahead and 8 give you the full hour. 9 So with that, you have the floor. Or is it 10 going to be you or Mr. Small? 11 MS. BROWN: Your Honor, I would like to 12 make the opening, have Mr. Barbour address it, and then 13 Mr. Small kind of close it if that's all right with Your 14 Honor. 15 THE COURT: Okay. So you'd like to start 16 out and then -- well, this is what we'll -- give me the 17 reasons why you believe that I got it wrong the first 18 time. And then if you'd like to allow Mr. Small to 19 chime in -- I don't need opening, I don't necessarily 20 need closing remarks at all, but we want to get straight 21 to the meat of the matter. 22 Ms. Brown, I'll let you begin. 23 And then, Mr. Small, you can take it up. 24 And then we're going to hear from 25 Mr. Barbour. If there's any reply necessary in between, 6 1 we will direct accordingly. 2 Go ahead, Ms. Brown. 3 MS. BROWN: Thank you, Your Honor. 4 And once again, it's nothing that the Court 5 did wrong at all, but here's where I -- the reason that 6 we're asking this morning that you deny the motion on -- 7 and -- reconsider and deny the motion, frankly, for 8 this, Your Honor: Because the defendants -- 9 THE COURT: Let's be clear -- 10 MS. BROWN: Yes. 11 THE COURT: -- there is no motion to 12 dismiss. 13 MS. BROWN: Yes. 14 THE COURT: Okay. 15 MS. BROWN: Because for the simple reason, 16 Your Honor, that the defendants did not meet the 17 requirements of 91(a). That rule has very specific 18 rules. And I would like to direct the Court's attention 19 to Rule 91(a)(2). And it addresses contents of the 20 motion. And this requirement that they did not meet 21 does not support the ruling of this Court in this way, 22 Your Honor: 23 On February 3rd, 2015, the defendants filed 24 their last pleading, and it was an amended 91(a) partial 25 motion for dismissal. Over a month later -- and it was 7 1 timely -- the petitioner filed an amended motion 2 dropping the cause of action for promissory estoppel and 3 adding oral gift of real estate. 4 Following that, Your Honor, the defendants 5 were required to do one of two things. They either had 6 to amend their motion to dismiss or to withdraw their 7 motion. They did neither. Even though in their 8 response, Your Honor -- we stated this is a new cause of 9 action that we're adding. And in all fairness we filed 10 this 10 days before the March 18th hearing that Your 11 Honor entertained. 12 Now, because they failed to meet this 13 91(a)(2) contents of the motion, the Court's ruling 14 cannot support the denial. 15 91(a) -- the granting of 91(a), Your Honor, 16 is done in three instances. And I'll be really brief. 17 One is that there's not a recognized cause 18 of action in this state. Oral gift of real estate is a 19 recognized cause of action in this state. 20 The second instance in which the motion is 21 granted is if on the facts -- the facts of -- petitioner 22 cannot gain relief. For example, if the petitioner in a 23 say auto accident pleads that the accident happened 24 15 years ago and there was no tolling statute, then on 25 its face that pleading is -- cannot bring relief to the 8 1 petitioner. In that instance the motion to dismiss is 2 granted. 3 The third one is when a petitioner attached 4 an -- a document or a affidavit, let's say an insurance 5 policy. And the insurance policy definitely does not -- 6 states that there's no coverage or he's not a named 7 insurer (sic). And I've looked at all the cases, Your 8 Honor, and it's only on those three case -- those three 9 general groups of cases that a motion to dismiss is 10 granted. 11 The Court in making a legal analysis of 12 whether or not to grant the motion must do this: Do the 13 allegations of the pleading state a cause of action 14 which authorizes relief? 15 Our cause of action for oral gift of real 16 estate is a viable cause of action. It's a recognized 17 cause of action. 18 And in that case, Your Honor, because it 19 was not challenged, it was not challenged by the 20 defendant -- 21 THE COURT: What specifically do you say 22 was not challenged? The cause of action on oral gift of 23 real estate? 24 MS. BROWN: That's correct, Your Honor. 25 THE COURT: Okay. 9 1 MS. BROWN: And like I said, he had to 2 amend his motion or withdraw it, one of the two. He did 3 not do that. 4 And so, Your Honor, this -- the Court does 5 not have discretion to determine whether or not the 6 contents of the motion were met or not. They either 7 were met or they were not. 8 For example, he did not challenge and state 9 specifically what his challenges were. So, therefore, 10 this Court I believe should reconsider their ruling on 11 this and deny their cause of action. 12 The same thing, Your Honor, applies for our 13 claim of conspiracy. In his third amended petition for 14 -- to dismiss or in his third motion to dismiss -- 15 excuse me. Clear the record. In his second amended 16 motion to dismiss, he alleges that there's no cause of 17 action because of intra-corporate immunity. 18 I came back, Your Honor -- Mr. Small and I 19 came back and we amended our pleadings and said 20 basically the corporate officers were not acting in 21 their corporate duties. They were acting as 22 individuals. 23 Conspiracy is basically this: One or more 24 individuals getting together to commit an unlawful act. 25 And so that too, Your Honor, is not supported by the 10 1 motion. 2 In other words -- in other words, he did 3 not meet the legal requirements of the rule. And, 4 therefore, the ruling that the motion be granted cannot 5 stand. 6 And basically, Your Honor, like I said, we 7 pointed this out to the Court in the original hearing on 8 March 18th. We said he did not amend. 9 Mr. Barbour on behalf of the defendants 10 went on. And even in the response that he filed 11 yesterday after -- 12 THE COURT: I'm sorry, Ms. Brown, if I can 13 interrupt just a second. You seem very clear on your 14 statements with regard to the arguments made on March 15 18th. 16 MS. BROWN: Yes. 17 THE COURT: Is there a transcript 18 available? 19 MS. BROWN: Yes, there is, Your Honor. 20 THE COURT: Okay. Thank you. 21 MS. BROWN: And I have it with you (sic) 22 and -- because the defendants allege that we didn't 23 bring it up to the attention of the Court. We did. 24 THE COURT: Okay. 25 MS. BROWN: And I have the transcript. And 11 1 it's page 6 lines 10 and 11 of the transcript. 2 THE COURT: Thank you. 3 MS. BROWN: And Mr. Small at that time also 4 informed the Court that this proceeding is basically 5 about pleadings. That the rule strictly says the Court 6 cannot entertain evidence. What happened in that 7 March 18th meeting was evidence. But this whole 91(a), 8 the new rule, is about pleadings. Did the attorneys, 9 Mr. Jeff Small and I, plead correctly oral gift of real 10 estate? 11 We did. It went unchallenged. And, 12 therefore, Your Honor, we're saying please reconsider 13 and deny their motion in its entirety. 14 THE COURT: Thank you. 15 Mr. Barbour, would you like to reply at 16 this point or would you like Mr. Small to go ahead. 17 MR. BARBOUR: I would yield to plaintiff's 18 discretion. If Mr. Small feels like he can blend in at 19 this point, I would be happy to respond after that 20 but -- 21 MR. SMALL: Your Honor, I don't have a 22 whole lot to add because Ms. Brown was very succinct. 23 Just using the language of the Rule 91(a)(5) says that 24 the Court may not rule on a motion to dismiss after 25 nonsuit or amendment. So consequently the promissory 12 1 estoppel is beyond the Court's reach. 2 And similarly 91(a)(2), you know, does say 3 that -- that the pleadings must tell why -- it must 4 address each cause of action. Well, oral gift of real 5 estate was in our fifth amended petition, but it was not 6 in FMP's live 91(a) motion so consequently that too is 7 beyond the Court's reach. 8 So promissory estoppel is not in the fifth 9 amended, but yet it was addressed and ruled on. And I 10 would contend that according to the rule that promissory 11 estoppel and oral gift of real estate are both beyond 12 the Court's discretion. 13 THE COURT: Thank you. 14 Mr. Barbour. 15 MR. BARBOUR: Yes, Your Honor. I'll get to 16 the substance of I think plaintiff's argument in a 17 moment, but first Your Honor hadn't quite asked whether 18 this objection was raised at the March 18th hearing, 19 which the motion to dismiss was originally argued. 20 Ms. Brown directed us to page 6, lines 10 21 and 11 of the hearing transcript, which I think is at 22 tab 3 of the binder that Your Honor has. 23 And as I read page 6 line 3 (sic), that's 24 actually me talking just giving an overview of 25 plaintiff's sexual harassment claim, which is not at 13 1 issue in the motion to dismiss at all. 2 THE COURT: I believe it's page 6, line 10 3 and 11 that she referenced. 4 MR. BARBOUR: 10 and 11, Your Honor, yes, 5 Your Honor, that's what I'm looking at as well. I 6 apologize if I misspoke, but that is me giving an 7 overview of plaintiff's sexual harassment claim under 8 chapter 21, which isn't a target of the motion to 9 dismiss at all. That is certainly not plaintiff raising 10 an objection as to the fact that the contents of the 11 motion aren't directed to the oral gift or amended 12 conspiracy claim. 13 So on that basis, Your Honor, there's 14 authority cited in our response indicating that the 15 parties have a duty to raise objections, to raise 16 concerns to the Court at their earliest opportunity. In 17 this case that was indisputably at the March 18th 18 hearing at which these arguments were made. 19 Plaintiff declined to raise these 20 objections at that time and instead argued the motion on 21 the merits. I don't know why that would be, but that 22 was the tactic they chose, Your Honor. So our 23 contention would be that any such arguments have been 24 waived at this point and would not be a ground to either 25 reverse the Court's decision on the motion to dismiss or 14 1 potential error on that point. 2 THE COURT: Can we pause for just a second? 3 MR. BARBOUR: Yes, Your Honor. 4 THE COURT: Ms. Brown, did you mean to 5 bring the Court's attention to a different part of your 6 transcript? 7 MS. BROWN: I will, Your Honor. I'm going 8 to have Mona look through it. I must have quoted the 9 wrong -- 10 THE COURT: Okay. Just let us know when 11 you're ready. 12 Mr. Barbour, I'm going to allow you to 13 continue. 14 MR. BARBOUR: Yes, Your Honor. 15 So that initial point aside, Your Honor, 16 next we're turning to the property-related claims where 17 Ms. Faire is in essence attempting to ask the Court at 18 trial or at some point to compel defendants to transfer 19 title to a home that she's living in currently without 20 any written agreement between the parties whatsoever 21 under the guise that there was a promise of a gift at 22 some point that this home would be transferred. 23 Ms. Brown, as I understand, is arguing that 24 this oral gift claim wasn't before the Court at the 25 March 18th hearing and therefore can't be the subject of 15 1 the motion to dismiss. 2 In my perspective, I see a few different 3 issues with her contention here. The first, Your Honor, 4 is that rule 91(a)(5)(a) clearly describes what a 5 plaintiff has to do or what a party has to do if they 6 don't wish to take a claim all the way through the 7 motion to dismiss hearing. 8 Mr. Small has suggested that a claim is 9 nonsuited or amended, that it's beyond the Court's 10 reach. With all due respect to Mr. Small, Your Honor, I 11 don't believe that's correct. 12 Rule 91(a)(5)(a) specifically says the 13 Court may not rule on a motion to dismiss if at least 14 three days before the date of the hearing the respondent 15 nonsuits the challenge cause of action or the movant 16 files a withdrawal of the motion. 17 We did not withdraw our motion, and 18 plaintiff very clearly did not file a nonsuit of her 19 claim of promissory estoppel. Meaning, Your Honor, no 20 matter where we end up, as of the March 18th hearing, 21 the promissory estoppel claim is still both before the 22 Court and also it's also subject to that motion to 23 dismiss. 24 Plaintiff is now alleging that she dropped 25 the promissory estoppel claim and instead amended this 16 1 new claim for oral gift of real estate. 2 They're not separate claims, Your Honor. 3 They are the same claim entirely. And plaintiff has 4 merely repackaged the existing claim, which has been 5 present in her petition under the guise of a promissory 6 estoppel claim since late October trying to avoid the 7 motion to dismiss through this kind of I would call 8 gamesmanship potentially, Your Honor, but certainly a 9 nonsubstantive change there. 10 It's reflected by plaintiff's pleadings, 11 there's no substantive difference between the nature of 12 the underlying allegations whatsoever between this 13 alleged promissory estoppel and the subsequent oral gift 14 claim. 15 Plaintiff's third amended petition, which 16 alleged the quote, unquote promissory estoppel claim 17 four times alleges that plaintiff was quote, unquote 18 gifted the property. 19 And then we move to the fourth petition 20 which is filed in response to the motion to dismiss. 21 And then she removes the term promissory estoppel and 22 inserts the term oral gift of real estate suggesting 23 that it's a different claim and that we then have to 24 kick this can down the road later on to another motion 25 to dismiss hearing, but that's neither warranted nor 17 1 necessary, Your Honor. It's all the same claim trying 2 to compel a transfer of property in the absence of a 3 statute of frauds. 4 And specifically to this point, Your Honor, 5 I would argue that plaintiff has conceded the fact that 6 the oral gift claim is, in fact, addressed in the Rule 7 91(a) motion to dismiss. 8 On page 2 of her response to that motion, 9 plaintiff argues, quote, by their Rule 91(a) motion, 10 defendants challenge plaintiff's claim for an oral gift 11 of real estate. 12 And then she continues on to some of the 13 merits of that. 14 But plaintiff admits in her response that 15 the oral gift claim is in fact challenged by the Rule 16 91(a) motion to dismiss. And subsequently falling back 17 from that position trying to, you know, argue the exact 18 opposite at this point, Your Honor, has no basis 19 whatsoever and she's bound to her prior pleadings, which 20 admitted which claims were in fact addressed in that 21 motion. 22 And then finally, Your Honor, I would note 23 that I respectfully take issue I think with Mr. Small's 24 interpretation and Ms. Brown's interpretation of Rule 25 91(a) which seemingly would require the parties, you 18 1 know, to constantly be amending their Rule 91(a) motion 2 to dismiss every time an amended pleading is filed in 3 response to it. That's not what the rule requires. 4 The rule requires you state the basis on 5 which there's no basis in law or no basis in fact for 6 the claim alleged. 7 Our Rule 91(a) motion contends -- properly 8 I believe -- that plaintiff's claim for a 9 property-related claim trying to compel the transfer of 10 this home is barred by the statute of frauds, that she 11 has not shown any exceptions, you know, available to 12 that claim to show that even accepting all of her 13 allegations as true, she would be able to compel the 14 transfer of that property in the absence of a written 15 agreement. 16 It doesn't matter whether you style the 17 argument as promissory estoppel, oral gift of real 18 estate, or whatever other claim plaintiff may conjure 19 later on in this litigation potentially. The statute of 20 frauds is still the reason that claim fails. That 21 defense and that argument is stated succinctly and 22 sufficiently under Rule 91(a) to articulate why 23 plaintiffs can't recover and their claim has no basis in 24 the law. And, therefore, the motion to dismiss is 25 appropriate. 19 1 THE COURT: Thank you, Mr. Barbour. 2 Give me just one second please, Mr. Small. 3 MR. SMALL: Yes, ma'am. 4 (Short pause.) 5 THE COURT: We're back on the record. 6 Mr. Barbour, you're standing. Was there 7 something more? 8 MR. BARBOUR: As to the oral gift claim, 9 Your Honor, I would finally note, none of plaintiff's 10 arguments contend that she has in fact alleged a 11 sufficient claim for this oral gift of real estate. At 12 our hearing, we discussed in detail the fact that 13 plaintiff has not shown any present gift, any immediate 14 transfer of property as necessary to state that claim. 15 So all of these technicalities of Rule 91(a) aside, 16 which I also believe are baseless, at the end of the day 17 she still has not alleged a claim that stands up to 18 scrutiny for this transfer of real estate. And, 19 therefore, Your Honor, I believe that it was, in fact, 20 appropriate for the Court to dismiss that 21 property-related claim. 22 Would the Court like me to address the 23 conspiracy claim at this time, as well? 24 THE COURT: Yes. 25 MR. BARBOUR: Yes, Your Honor. 20 1 Finally we turn to the conspiracy claim and 2 plaintiff's argument again at this point is essentially 3 that because she filed an amended petition in response 4 to the motion to dismiss, that therefore this claim was 5 somehow beyond the Court's reach and the Court could not 6 reach the merits of whether or not she had alleged that 7 conspiracy claim. 8 This is not within Rule 91(a) either, Your 9 Honor. Rule 91(a) requires that we file a motion to 10 dismiss, identify the cause of action in fact that it 11 can't go forward. It allows the plaintiff the option to 12 either respond to the motion to dismiss or to amend her 13 pleadings, which it does, but the rule does not 14 foreclose the Court's ability to rule on a motion to 15 dismiss notwithstanding that amendment, that the Court 16 has full discretion to evaluate the merits of that claim 17 and to see whether there's a basis in law or a basis in 18 fact for that claim and to move forward. 19 Plaintiff's reasoning to Rule 91(a), we 20 would indefinitely be cycling through and forever 21 amending our pleadings and amending our motions and 22 never reaching the goal of Rule 91(a), which is the 23 efficient resolution and dismissal potentially of 24 patently frivolous and baseless causes of action. 25 THE REPORTER: Would you please slow down. 21 1 MR. BARBOUR: I apologize for that. I 2 apologize. 3 So there being no requirement that we have 4 amended our Rule 91(a) motion in response to her amended 5 petition, that arguments falls flat. 6 And again, Your Honor, I would turn to the 7 merits of plaintiff's conspiracy claim. And again at 8 the March 18th hearing on the motion to dismiss, 9 plaintiff was completely unable to identify a single 10 allegation in her petition that showed an unlawful or 11 illegal act taken by any of defendants whatsoever. 12 Therefore, that claim has no basis in law under the 13 wording of Rule 91(a)(1) because her allegations even 14 taken as true would not entitle her to the relief 15 sought. Meaning if we took her petition and put it in 16 front of a jury and said everything in here is true, 17 they would not be able to render a verdict for her on 18 that conspiracy claim because there's no unlawful or 19 illegal acts alleged anywhere within that petition. 20 And so for those reasons, Your Honor, we 21 would suggest that the Court was entirely proper in 22 dismissing plaintiff's property-related claims and her 23 conspiracy claims. And respectfully I ask that the 24 Court deny the plaintiff's motion for new trial. 25 THE COURT: Thank you, Mr. Barbour. 22 1 Mr. Small, round two. 2 MR. SMALL: Your Honor, having been engaged 3 in an oral gift of real estate case in Kendall County 4 for the best part of the last two years revolving around 5 a supposed 1500 acre gift of a ranch, I can state 6 categorically that I have yet to see one case dealing 7 with an oral gift of real estate that equates that cause 8 of action to promissory estoppel. They are two 9 different things. And taking issue with counsel's 10 suggestion of what 91(a) does and does not permit, 11 91(a)(5) is titled effective nonsuit or amendment. The 12 Court may not rule on a motion to dismiss if at least 13 three days before the date of the hearing, the 14 respondent files a nonsuit of the challenged cause of 15 action or the movant withdraws the motion. 16 And I would suggest that the cases say that 17 an amendment that drops a cause of action -- an amended 18 petition that drops a cause of action is effective 19 nonsuit of that particular cause of action. And here 20 again -- 21 THE COURT: When you say you believe the 22 cases say, which cases are you -- 23 MR. SMALL: I was not prepared to present a 24 case to the Court, but I will be happy to provide that 25 authority to the Court and to Mr. Barbour because if -- 23 1 I've run into case where even if you drop a defendant 2 out of the caption on a case, you have effectively 3 dropped them out of the case. So, you know, that's the 4 equivalent of a nonsuit. 5 THE COURT: And so I'm going to ping-pong 6 back to Mr. Barbour. 7 Mr. Barbour, would you agree or disagree 8 that by dropping a cause of action that that is the 9 effect of a nonsuit and so -- which is the -- then would 10 fall within the realm of subsection A? 11 MR. BARBOUR: I would not, Your Honor. You 12 know, Rule 162 specifically provides for nonsuits to 13 occur and there's a nonsuit pleading a plaintiff has to 14 file or a claimant has to file obviously to nonsuit that 15 claim. And under Texas' notice pleading standards, you 16 know, headings frankly are irrelevant to a plaintiff's 17 claim anyway. You know, it's the content of the 18 pleading that we're looking at. So whether a plaintiff 19 styles her claim as promissory estoppel or oral gift or 20 whatever the case may be, the underlying claim itself, 21 you know, does not change in light of that. 22 So I think if the framers of Rule 91(a) 23 wanted to allow for the, you know, the amendment of the 24 pleading to withdraw that cause of action, they would 25 have provided for that, respectfully, Your Honor. They 24 1 did not. They specifically required a nonsuit, which is 2 a very clear delineated bright-line action. You're 3 either forgoing the claim voluntarily and nonsuiting it 4 or, you know, an amendment may or may not, you know, 5 we're left in this gray area. And plaintiff having not 6 followed that very clear procedure to specifically and 7 affirmatively disallow the promissory estoppel claim by 8 nonsuiting it means that, you know, it's still there 9 intertwined with this oral gift claim as conceded in her 10 response to the motion to dismiss. 11 THE COURT: Thank you, Mr. Barbour. 12 And before we go any further, Mr. Small, 13 and right now the Court is of the mindset that I really 14 would like case law, but did we find within the 15 transcript from March 18th the portion where the 16 argument that was made this morning was in fact made on 17 March 18th? 18 MR. SMALL: Yes, ma'am. It was Page 11 19 lines 10 and 11, not page 6. 20 MS. BROWN: Apologize for that, Your Honor. 21 THE COURT: It's okay. Page 11, lines -- 22 MR. SMALL: Page 11, lines 10 and 11 are 23 the most succinct place I think. 24 (Short pause.) 25 THE COURT: Mr. Barbour, would you like to 25 1 respond at this time? 2 MR. BARBOUR: I would, Your Honor. As I 3 read lines -- page 11, lines 10 and 11, you know, 4 there's -- they have not objected to our current 5 pleading. I see that. I don't see any argument there 6 that the motion to dismiss is defective or can't proceed 7 based on its current content whatsoever. They were an 8 affirmative duty. If they're wanting to argue that the 9 quote, unquote, contents of the motion as provided under 10 Rule 91(a)(2) must specifically address it and that it's 11 insufficient, that's not at all spelled out there, Your 12 Honor. And even if they did, they never asked the Court 13 for a ruling on that motion at that time and it wasn't 14 raised, you know, as a formal objection. It's an aside 15 that doesn't at all raise these issues for the Court's 16 review. 17 And so I would both argue that it's not a 18 proper objection whatsoever and it certainly was not 19 preserved at that point to be raised in the motion for 20 new trial. So I don't think they exhausted their 21 burdens at all. 22 THE COURT: Thank you, Mr. Barbour. 23 Mr. Small, I'm going to let you hopefully 24 tie up any loose ends at this time. 25 MR. SMALL: I would. 26 1 The last thing. And counsel appear to be 2 attempting to tag Ms. Brown with some kind of admission 3 that promissory estoppel and oral gift of real estate 4 are one and the same, but the fact of the matter is that 5 91(a) explicitly states that this is a ruling only on 6 the pleadings. And the pleadings say what the pleadings 7 say. No evidence, no argument of counsel, no nothing. 8 It's the pleadings and the pleadings alone. 9 And we would ask that the Court deny their 10 91(a) motion to dismiss. Thank you. 11 THE COURT: Thank you, Mr. Small. 12 So what we're going to do is we're going to 13 allow Mr. Small to submit by e-mail and only for this 14 purpose, and CC Mr. Barbour, his two cases on the issue 15 of 91(a) and whether dropping a cause of action in fact 16 falls into the realm that would permit the argument that 17 was made today. Only that case. And he's going to get 18 it to me before noon. Yes? Yes. And that way 19 Mr. Barbour -- I don't know if you're doing anything 20 before 2:00 today or not. I really would -- I want to 21 have some finality one way or another. And I want to 22 let you guys know before 5:00 if at all possible. So if 23 you would like that, then Mr. Small can get it to me 24 before noon, and then you can have until what time 25 afternoon to respond, Mr. Barbour? 27 1 MR. BARBOUR: You said 2:00, Your Honor, 2 that would be fine by me. 3 THE COURT: Okay. So 2:00 and that way -- 4 so that would be wonderful. If you get it before 5 then -- I have lunch between 12:00 and 1:30 and I don't 6 have a judges' meeting at lunch so -- just so you know 7 the Court's schedule. But with that, I appreciate your 8 arguments. I appreciate your early morning rise in 9 coming to the 57th this morning. And y'all are excused. 10 Thank you very much. 11 (Proceeding concluded.) 25 28 1 STATE OF TEXAS 2 COUNTY OF BEXAR 4 I, Mary Martinez, Certified Court Reporter in and 5 for Bexar County, State of Texas, do hereby certify that 6 the above and foregoing contains a true and correct 7 transcription of the proceedings requested in the 8 above-styled and numbered cause, all of which occurred 9 in open court or in chambers and were reported by me. 10 I further certify that this Reporter's Record truly 11 and correctly reflects the exhibits, if any, offered by 12 the respective parties. 13 I further certify that the total cost for the 14 preparation of this Reporter's Record is $ 216.00 15 (expedited) and was paid by Ms. Olga Brown . 16 To which I certify on this the 15th day of 17 May , 2015. 21 /s/ Mary Martinez Mary Martinez, CSR 5943 22 57th District Court Bexar County Courthouse 23 100 Dolorosa Street San Antonio, Texas 78205 24 Telephone: 210.335.1602 Exp: 12-31-2016 25 Appendix 21 Appendix 22 Appendix 23 Appendix 24 Appendix 25 Appendix 26 Appendix 27 Appendix 28 Appendix 29 1 1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME 2 TRIAL COURT CAUSE NO. 2014-CI-16674 3 CEARTH FAIRE ) IN THE DISTRICT COURT 4 ) ) 5 VS. ) 150TH JUDICIAL DISTRICT ) 6 ) FMP SA MANAGEMENT GROUP, LLC, ) 7 ET AL. ) BEXAR COUNTY, TEXAS ******************************************************* 8 MOTION TO PARTIALLY DISMISS 9 ******************************************************* 10 15 On the 18th day of March, 2015, the following came 16 on to be heard in the above-entitled and numbered cause 3 MR. JEFFREY SMALL SBOT NO. 00793027 4 12451 Starcrest Drive, Suite 100 San Antonio, Texas 78216 5 Phone: (210) 496-0611 Appearing for Cearth Faire 6 7 MS. OLGA BROWN SBOT NO. 03155500 8 111 Soledad Street, Suite 1725 San Antonio, Texas 78205 9 Phone: (210) 226-1550 Appearing for Cearth Faire 10 11 MR. JUSTIN J. BARBOUR SBOT NO. 24055142 12 17806 West IH 10, Suite 400 San Antonio, Texas 78257 13 Phone: (210) 447-8033 Appearing for FMP SA Management Group, LLC, 14 et al. 3 MARCH 18, 2015 PAGE VOL. 4 Appearances.............................. 2 1 5 Court Reporter's Certificate............. 41 1 6 3 versus FMP SA Management Group, LLC, et al. 4 If I could the attorneys please identify 5 themselves for the record and whom they represent. If 6 we could start on my left. 7 Good morning. 8 MR. SMALL: Good morning, Your Honor. Jeff 9 Small for Cearth Faire and -- with Olga Brown. 10 THE COURT: Good morning, Ms. Brown. 11 MS. BROWN: Good morning, Your Honor. 12 THE COURT: And who else is seated at your 13 table? 14 MR. SMALL: This is Ms. Faire. 15 MS. BROWN: The plaintiff. 16 THE COURT: Thank you. 17 Good morning, counsel. 18 MR. BARBOUR: Good morning, Your Honor. 19 Justin Barbour for defendants, along with Robert Ray. 20 Individual defendant Peter Donbavand is with us as well 21 today. 22 THE COURT: I'm sorry, which one? 23 MR. BARBOUR: Individual defendant Peter 24 Donbavand. 25 THE COURT: Peter Donbavand? 5 1 MR. BARBOUR: Yes, Your Honor. 2 THE COURT: Okay. Thank you. 3 And with that, you're here on your motion 4 to partially dismiss, is that correct? 5 MR. BARBOUR: That's correct, Your Honor. 6 THE COURT: I've read your pleadings. If 7 you would like to begin -- 8 MR. BARBOUR: Yes, Your Honor. 9 THE COURT: -- go ahead. 10 MR. BARBOUR: Would you prefer we stand or 11 sit? 12 THE COURT: When you're arguing in court, 13 you should stand. 15 Your Honor, if you had the opportunity to 16 read our pleadings, I think we can be a little more 17 efficient in our argument. 18 We are here arguing that three of 19 plaintiff's claims -- three of the four claims in this 20 matter should be dismissed, Your Honor. 21 The first claim we're moving to dismiss is 22 a claim for promissory estoppel wherein plaintiff seeks 23 to essentially compel defendants to honor what she says 24 was an oral promise to convey ownership in a home to her 25 later in time. 6 1 The second claim that we're seeking to 2 dismiss, Your Honor, is a claim for quote, unquote, oral 3 gifts, pertaining to that same home wherein plaintiff 4 alleges that defendants promised to orally gift a home 5 to her. 6 The third claim we're seeking to dismiss is 7 a civil conspiracy claim, Your Honor, wherein plaintiff 8 alleges that defendants somehow conspired to deny her 9 the gift of the home at issue in those first two claims. 10 And her final claim, Your Honor, is a 11 Chapter 21 claim for sexual harassment, which defendants 12 are not seeking to dismiss today under Rule 91a. 13 If Your Honor -- if it would help Your 14 Honor's following of my argument, in the front pocket of 15 our binder, Your Honor -- 16 THE COURT: I got it. 17 MR. BARBOUR: Yes, Your Honor. 18 THE COURT: You have it too, right? Y'all 19 have the same thing, the -- 20 MR. SMALL: Yes, ma'am. 21 MR. BARBOUR: On the fourth slide of that 22 handout, Your Honor, we got a brief -- a little cite to 23 a case which briefly outlines an overview of the statute 24 of frauds, which Your Honor knows is at Section 2601 of 25 the Business and Commerce Code and which provides that 7 1 claims pertaining to ownership of real property or a 2 home both must be in writing and must -- and at the 3 agreement or promise conveying ownership to that 4 property must be signed by the individual allegedly 5 transferring ownership of the property. 6 Quite simply, Your Honor, insofar as 7 plaintiff's first two claims seek to compel a transfer 8 of ownership of the property, she's essentially asking 9 the Court to look to just this oral representation, this 10 oral argument, or this oral promise made by defendant 11 Jones and to basically conclude that she stated a claim 12 for relief based solely upon this oral promise. And as 13 Your Honor knows, exceptions to the statute of frauds 14 are exceptionally disfavored even in the Rule 91, any 15 context. And, of course, as noted, Texas courts have 16 uniformly looked with disfavor on litigants seeking to 17 bypass the statute of frauds by pleading other causes of 18 action. 19 So getting into the argument proper, Your 20 Honor, with regard to plaintiff's promissory estoppel 21 claim, plaintiff's current petition is her fourth 22 amended petition so her fifth petition since this matter 23 was filed I believe in early November of last year, Your 24 Honor. Plaintiff has alleged this promissory estoppel 25 claim which alleges that individual defendant Jones made 8 1 a promise during plaintiff's employment with defendant 2 that at some point in the future he would buy and convey 3 title to a home to her. In our motion to dismiss 4 proper, Your Honor, defendants argued that under the 5 law, a promissory estoppel claim can only survive the 6 statute of frauds if plaintiff specifically alleges that 7 the promise at issue isn't just to convey title to a 8 home, but that the plaintiff alleges that the defendant 9 and the individual against whom the promissory estoppel 10 claim is alleged promises to convey title to the home 11 specifically by promising to execute a written contract 12 or a written agreement that would itself suffice to 13 satisfy the statute of frauds. 14 A simple reading of plaintiff's fourth 15 amended petition, Your Honor, demonstrates that no such 16 allegations are at issue in this matter. Plaintiff 17 hasn't alleged whatsoever that defendant Jones promised 18 to execute a specific ownership agreement, a sale 19 agreement, a deed, anything that would convey title to 20 the property to the home to her. And moreover, Your 21 Honor, specifically going back to the Gaubert decision 22 cited on our slide and in our brief, plaintiff has 23 specifically not alleged that defendant Jones promised 24 to sign a written agreement that itself complied with 25 the statute of frauds. Instead, Your Honor, it would 9 1 appear that plaintiff has abandoned this promissory 2 estoppel claim since there's no substantive argument 3 given on it with -- inside of her response brief itself. 4 And instead there are only vague allegations along these 5 lines within the fourth amended petition. 6 So because plaintiff's allegations, even 7 accepted as true under Rule 91a, Your Honor, would not 8 entitle her to relief sought because she's not alleged 9 that defendant Jones promised to execute an agreement to 10 convey title to the property that -- it satisfied the 11 statute of frauds, we respectfully ask that plaintiff's 12 promissory estoppel claim be dismissed under Rule 91a. 13 THE COURT: Mr. Barbour? 15 THE CURT: I like to ping-pong arguments, 16 i.e., you've made your argument on the promissory 17 estoppel issues. At this time, I'd like to turn it 18 over -- 19 MR. BARBOUR: Yes, Your Honor. 20 THE COURT: -- to opposing counsel if you 21 believe that your promissory estoppel argument doesn't 22 go hand in hand with oral gift. Are we going to be 23 getting into that? Do you believe your arguments bleed 24 over? Or do you believe that we can divide the 25 arguments as such on each one? 10 1 MR. BARBOUR: I believe there is overlap, 2 but I think we can differentiate them especially if it 3 helps the Court's review of the issues, Your Honor. 4 THE COURT: Does it help your presentation 5 to go on to the second and then ping pong? 6 MR. BARBOUR: Not necessarily, Your Honor, 7 no, so we can ping pong arguments, yes. 8 THE COURT: Okay. Your serve. 9 MR. SMALL: Your Honor, Jeff Small for 10 Cearth Faire. 11 THE COURT: May I just add for the record 12 how happy I am to see Mr. Small. He's one of my 13 favorite attorneys. Let me just give you full 14 disclosure. I like him a lot. Just so you know. And 15 Ms. Brown. 16 And, Mr. Barbour, I don't know you well 17 enough, but I really do like your associate. I just 18 have to say. 19 Mr. Small, good morning. 20 MR. SMALL: Good morning, Judge. 21 Can I fill them in on the rest of the 22 details? 23 We were successful in Judge Arteaga's court 24 on a significant judgment some time back and -- 25 THE COURT: We spent some time together in 11 1 court. 2 MR. SMALL: Good long time. 3 Your Honor, I need to back up just a little 4 bit prior to the promissory estoppel argument because at 5 its face, 91a is an argument simply on the pleadings. 6 The rule itself states that no evidence is taken or 7 considered in whether we dismiss under 91a or not. 8 And, frankly, Judge, opposing counsel has 9 not objected to our current pleading. They filed their 10 91a motion to dismiss. We amended. And they have not 11 objected to our current pleading. 12 That said, promissory estoppel is not in 13 our fourth amended pleading, but even that being the 14 case, I would dispute Mr. Barbour's characterization of 15 what our pleadings do and do not include. We expressly 16 contend that an oral promise was made to Ms. Faire to 17 convey this property to her. And the inference from 18 that is that Mr. Jones was going to prepare a deed in -- 19 to Ms. Faire on this house. So that knocks the 20 underpinnings out from underneath counsel's promissory 21 estoppel argument. 22 But more importantly, the basis of an oral 23 gift of real estate, which is an exception to the 24 statute of frauds, is that a promise has been made 25 orally. And the elements of an oral gift of real 12 1 estate, with which I'm intimately familiar after having 2 spent two weeks in trial in Junction on this very issue 3 on a ranch, is a present gift, permanent improvements, 4 and possession of that gift. Now, here we don't have to 5 get into the details. As a matter of fact, I would 6 suggest that the Court is precluded from getting into 7 the details anything beyond reading what our pleading 8 says. 9 If there is a stated cause of action, oral 10 gift of real estate, and the facts that are pled could 11 be believed by a reasonable person, the Court's 12 consideration of 91a motion is over. 13 If the Court is familiar with a 12(b)(6) 14 motion in federal court, 91a -- there's some dispute 15 about, you know, does it match up exactly with a 16 12(b)(6) or doesn't it. And my conclusion is that it's 17 probably a little bit different, but a 12(b)(6) motion 18 is you haven't stated a cause of action. 19 The cases that talk about 91a in Texas are 20 such that a 91a dismissal has been granted in a case 21 where there was no immunity and no matter how they 22 replead, the plaintiff could not win because the 23 defendant was immune. And so the only two things that 24 the Court looks at here is, is there a cause of action? 25 And we've pled three: Oral gift of real estate, civil 13 1 conspiracy, and quid pro quo sexual harassment. And are 2 those stated causes of action? And, secondly, are the 3 facts that are pled prima facie proof of those causes of 4 actions? And if the answer to those questions are yes, 5 it's game over; 91a motion has to be dismissed. 6 THE COURT: So, Mr. Barbour, what I'm 7 understanding from Mr. Small is he's not responding to 8 your argument on promissory estoppel because there is no 9 argument in that their fourth amended pleading doesn't 10 include promissory estoppel. 11 Is that correct, Mr. Small? 12 MR. SMALL: Yes, ma'am. 13 MR. BARBOUR: Yes, Your Honor. I mean, 14 Rule 91a sets out pretty specific procedures if a party 15 wishes to withdraw a claim that is challenged within the 16 motion to dismiss itself. And it specifically requires 17 a party to affirmatively nonsuit the challenged claim if 18 they wish to drop it. And so from my perspective if a 19 claim has been nonsuited expressly and under Texas' 20 liberal pleadings standards, there's still allegation 21 that a promise was made and that Ms. Faire, by her 22 perspective, relied to her detriment on that promise. 23 THE COURT: Mr. Small, are you formally 24 dismissing the promissory estoppel claim? 25 MR. SMALL: We are, Your Honor, because our 14 1 claim is -- 2 THE COURT: Is that yes? 3 MR. SMALL: -- is wrapped up in the oral 4 gift of real estate. 5 THE COURT: He stated on the record that 6 they are formally dismissing promissory estoppel. Is 7 there anything more you need on that? 8 MR. BARBOUR: Not on that one, Your Honor. 9 No, Your Honor. 10 THE COURT: Then let's move forward to oral 11 gift and civil conspiracy. 12 MR. BARBOUR: Yes, Your Honor. As to I 13 think some of the prima facie elements of a claim for 14 oral gift of real estate under Texas law. And as Your 15 Honor is aware again, an oral gift is going to be 16 subject to the statute of frauds and therefore would be 17 disfavored under Texas law. 18 To establish this prima facie gift of oral 19 real estate, its survival of 91a motion to dismiss, 20 Ms. Faire needs to allege that defendants made what the 21 law calls a gift in praesenti, a present gift; at the 22 time that the gift is made that she then took possession 23 under the gift by the donee with the donor's consent -- 24 meaning in this case Ms. Faire took possession of that 25 home because of defendant Jones' gift and that she then 15 1 made permanent and valuable improvements to the 2 property. 3 In this case, Your Honor, we allege -- and 4 I agree with Mr. Small that Rule 91a requires plaintiff 5 to allege a viable cause of action. And Rule 91a 6 further requires Ms. Faire to affirmatively allege 7 claims that if accepted as true just based on the four 8 corners of her pleadings would establish a claim for 9 relief. 10 So I agree, frankly, Your Honor for putting 11 evidence in front of you I think that would be favorable 12 to us. But I understand that today we're limited just 13 to the four corners of her pleading. 14 If we go to the next slide after the 15 elements of the oral gift claim, Your Honor, the one 16 that begins with Jones did not own a home. This 17 includes a handful of selections from Ms. Faire's own 18 pleading, her fourth amended petition, which in 19 defendants' perspective affirmatively demonstrate that 20 she's precluded as a matter of law from establishing the 21 three elements of a gift of oral real estate. 22 Paragraph 13 of her fourth amended 23 petition, Ms. Faire alleges defendant Jones negotiated 24 with defendant Jason Kemp, whose wife owned a residence. 25 Defendant Jones then instructed defendant Donbavand to 16 1 prepared the necessary documents so he, Jones, could 2 purchase the residence for plaintiff. 3 Plaintiff is admitting that as of this 4 point in time right here, Mr. Jones did not own the 5 property. 6 Dropping down to paragraph 17 of the fourth 7 amended petition. Plaintiff herself alleges while 8 defendant Donbavand was completing the necessary 9 documents -- those are the documents by which Mr. Jones 10 himself can take ownership of the property -- defendant 11 Jones requested the plaintiff move into the house, 12 orally gifting her the house. 13 And she took possession of that -- by 14 plaintiff's own allegations, Ms. Faire took possession 15 of this house -- this house on Timber Place Road before 16 the documents were completed by which Mr. Jones could 17 take ownership. She's admitting that Mr. Jones didn't 18 own the house when she took ownership of the property. 19 And as we show, Your Honor, at most 20 defendant Jones intended a future gift of this property 21 by plaintiff's own admissions. 22 Paragraph 25, Ms. Faire alleges defendant 23 Jones promised to buy a home and gift it to plaintiff 24 upon their return to San Antonio. 25 That's a future -- a promise of a future 17 1 gift. 2 At paragraph 28, plaintiff alleges it was 3 reasonable for plaintiff to rely on defendant Jones' 4 promise of an oral gift of real estate. And a promise 5 of oral gift of real estate, Your Honor, respectfully, 6 is not a present gift as required to state a prima facie 7 claim of oral gift of real estate. 8 And on the next slide, Your Honor, there's 9 some pertinent cases here, especially ones from the 10 Fourth Court, which specifically address situations like 11 this in which the courts distinguish a future promise of 12 possession and ownership of a home from a present gift 13 as required to state a claim for oral gift. 14 The Thompson v Dart decision, Your Honor, 15 the Fourth Court said to be a gift in praesenti, the 16 donor must, at the time he makes -- at the time the 17 donor makes the gift intend an immediate divestiture of 18 the rights and ownership out of himself, and a 19 consequent immediate vesting of such rights in the 20 donee. 21 The El Paso Court of Appeals agreed with 22 that in the Flores decision wherein it said that to be a 23 present gift, the owner has to release all dominion and 24 control over the property. 25 And the Woodworth decision at the very 18 1 bottom discussing the gift general, Your Honor, 2 holds that a gift may generally not be made to take 3 effect in the future since that future promise is 4 without consideration. 5 And the last slide in the section, Your 6 Honor, quite simply, we agree, at this point in the 7 proceeding we can only look at plaintiff's pleadings. I 8 readily admit that. But even looking solely at her 9 pleadings, Ms. Faire admits that at the time she took 10 ownership of the house and at the time Mr. Jones 11 promised to gift her this house allegedly, he didn't own 12 the property. Someone else owned the property when she 13 took ownership. 14 Her prior petitions have alleged, you know, 15 accurately that she even signed a lease with the 16 then-owner of that house. That has been removed from 17 the fourth amended petition at this point, Your Honor. 18 But regardless, even looking at the fourth amended 19 petition, she admits that there was no present gift of 20 the property from Mr. Jones; that he instead intended a 21 future gift; and by the time he took ownership of the 22 house after her termination of employment with defendant 23 FMP, she has been terminated. She alleges that she's 24 suffering retaliation at that point. And at that point, 25 the promise of a gift had been rescinded. And so by the 19 1 time a gift could have become effective when Mr. Jones 2 took ownership of the house, she alleges that he had 3 already decided not to gift it. So there's no gift at 4 all and there's certainly not a present gift. And she 5 didn't take ownership under that gift as required to 6 state a prima facie claim for oral gift, Your Honor. 7 THE COURT: Thank you. 8 MR. SMALL: Your Honor, there's no 9 requirement that he own the property at question in 10 order to intend to make a gift. 11 THE COURT: What about Thompson v Dart 12 where it states that to be a gift in praesenti, the 13 donor must at the time he makes it -- 14 MR. SMALL: Sure. It speaks of intent 15 there. It doesn't -- it doesn't talk anything about the 16 mechanics of actually conveying the property to her at 17 that time. It's talking about his intent at the time. 18 And so the -- but, you know, going back, I'll draw the 19 Court back to the basics of 91a. And the question is: 20 Could a reasonable person from the facts that we have 21 pled believe that a gift was made, that Ms. Faire made 22 permanent improvements -- which we explicitly pled in 23 paragraph 18 -- and that she took possession of the 24 house, not ownership but possession, in concert with 25 this intended divestiture on her behalf? 20 1 Now, were there mechanics and logistics 2 that had to be accomplished in order to effectuate the 3 gift? Most certainly. But that does not change the 4 fact that there's a prima facie statement here of a 5 cause of action, that's one. And then the second thing 6 is -- the question is: Could somebody reasonably 7 believe from the facts pled that we have a present gift? 8 And the answer to that is clearly yes. 9 They don't dispute that there's a cause of 10 action pled, so, you know, how deep do we get into the 11 facts? 12 And, you know, if there's basically any 13 fact issue, you know, that's maybe a cause for a summary 14 judgment motion, but it's not cause to prevent Ms. Faire 15 from getting into court in the first place. 16 THE COURT: So you're saying even if the 17 defendant didn't own the property, that he allegedly 18 promised to -- 19 MR. SMALL: The intention was there, Your 20 Honor. 21 THE COURT: And he did not have to have 22 current ownership of said property? 23 MR. SMALL: I don't believe that that's a 24 part of the oral gift. What, you know, even their case 25 talks about is an intention of immediate divestiture. 21 1 Well, you know, he's -- mechanically he has to acquire 2 the house. 3 And by the way, the fellow that owned the 4 house at the time is an employee and close associate of 5 Mr. Jones. So it's not like this is some, you know, 6 speculative-something-or-another. 7 THE COURT: Well, but it goes on to say, 8 intent and immediate divestiture of the rights of 9 ownership out of himself and a consequent immediate 10 vesting of such rights in the donee. 11 MR. SMALL: Sure. And I agree. But, you 12 know, my point is -- there's no question that we've 13 covered the legal aspect of the statement of a case. 14 The question is have we covered the factual aspect. 15 And the factual pleadings is -- the 16 question is could any reasonable person believe our 17 facts constitute an oral gift? 18 THE COURT: And your facts indicate that 19 the defendant was an owner? 20 MR. SMALL: The facts as pled here say that 21 he has to accomplish the purchase and the conveyance to 22 her, yes, ma'am. 23 THE COURT: But they don't indicate that he 24 is an owner? 25 MR. SMALL: Not that he is the current 22 1 owner of the house, no, ma'am. 2 THE COURT: And you believe it doesn't 3 matter because he does not have to be a current owner? 4 MR. SMALL: Not in order to cover the 5 elements of an oral gift, no, ma'am. 6 THE COURT: Despite the Thompson-Dart case 7 or -- let's look at Flores versus Flores, which I know 8 is out of El Paso, but to be a gift in praesenti, the 9 owner must release all dominion and control over the 10 property. And it says the owner must release all 11 dominion and control over the property. 12 MR. SMALL: It doesn't say that. 13 THE COURT: Does it not? 14 MR. SMALL: No. 15 THE COURT: Okay. 16 MR. SMALL: The cases that we've dealt 17 with -- and, again, I'll harken back to my November 18 experience in Junction -- they talk about releasing 19 dominion and control, and -- but it's what was the 20 giver's intent at the time he made the gift. Now, I can 21 intend to give you 30 acres out in Leon Springs that I 22 don't own because I'm going to acquire it this 23 afternoon. And I release all dominion and control over 24 it to you, but I have to go through the logistics of 25 buying it, getting the deed, deeding it to you. And 23 1 it's the same thing here. 2 The question is simply: Are there facts 3 here from which a reasonable person could believe that a 4 present gift was made to Ms. Fair? 5 And you're not going to find anyplace where 6 it says owner. 7 THE COURT: Except that Flores v Flores 8 according to the excerpt that Mr. Barbour has given to 9 the Court -- 10 MR. SMALL: Well, in that case it says 11 owner, but, you know, you don't find that as a 12 requirement. The assumption in most of these cases, I 13 will grant you, is that it's a present owner that is 14 making a gift, but that's not one of the three elements. 15 THE COURT: Well, isn't one of the elements 16 that defendant's gift is made -- being made in the 17 present? 18 MR. SMALL: Yes. 19 THE COURT: Okay. How can it be -- I don't 20 know where we're missing the connection here, but how 21 can it be made in the present when the person making 22 said gift presently doesn't own said gift? 23 MR. SMALL: Just as I indicated. I am 24 accomplishing the effectuation of that gift this 25 afternoon, but I make that gift to you right at this 24 1 minute. 2 THE COURT: But how is that not to take 3 effect in the future? 4 MR. SMALL: I think it's the difference 5 between, you know, 20 years from now, which was the case 6 up in Junction, you know, I'll give you the property 7 when I die over against I'll give you the property this 8 afternoon. That's today. That's present. 9 THE COURT: And do you have any other case 10 law to back you up, Mr. Small? 11 MR. SMALL: I do not. 12 THE COURT: Okay. Let me -- 13 MR. SMALL: The case law, Your Honor, is -- 14 you know, I don't dispute that the language is there 15 that says owner, et cetera, et cetera, but not all of 16 the cases use that phraseology and none of the cases 17 make present ownership a qualification for a present 18 gift. 19 THE COURT: Thank you. 20 On the same issue, would you like to 21 respond? 22 MR. BARBOUR: Your Honor, the Thompson v 23 Dart case and both the Thompson case and the Flores v 24 Flores case are attached at the back tab of plaintiff's 25 binder or -- 25 1 THE COURT: You read my mind. 2 MR. BARBOUR: -- excuse me, movant's binder, 3 Your Honor. 4 THE COURT: Go ahead. 5 MR. BARBOUR: The Thompson v Dart case 6 includes a provision that, you know, to be a gift in 7 praesenti, which is -- I think Mr. Small would agree -- 8 a prima facie element to establish this claim. 9 Expanding on that, the courts have said that that gift 10 in praesenti is one in which the donor must at the time 11 he makes it intend to divest himself of ownership of the 12 property. 13 The Thompson v Dart case continues that at 14 the time the gift is made, the donee's possession must 15 be in the nature of an owner's right to control. That 16 we can't take a gift of property subject to a 17 non-ownership interest. That if you are going to claim 18 a gift that means that at the time the gift is made, 19 immediately you take possession of that property. I 20 can't tell you, Your Honor, that five minutes from now 21 I'm planning to gift you a parcel of real estate because 22 in the intervening five minutes, various things may 23 happen. The gift can't take effect in the future. And 24 there's no consideration to bind that promise. 25 And specifically bringing it back to the 26 1 facts of this case as alleged in plaintiff's pleadings, 2 Your Honor, she alleges that the promise to convey title 3 to the real estate happened I think in late July, early 4 August 2014. She takes ownership allegedly subject to 5 that gift, but Mr. Jones doesn't take ownership of the 6 home until after she's terminated well into September 7 2014. And that's the intervening period of time, Your 8 Honor, that breaks it up and it renders the gift not 9 being one in praesenti but one in futuro. 10 And the Flores v Flores case -- actually 11 the Thompson v Dart case specifically distinguishes the 12 concept of an in praesenti gift from one that is futuro. 13 That if there's a promise of a gift in futuro, that 14 that, by the very allegation and in the facts pled 15 within that petition, mean the plaintiff is then 16 estopped from asserting that there was a present gift 17 because her own allegations accepted as true under rule 18 91a do not entitle her to the relief sought, which is 19 the exact text from Rule 91a itself. 20 And so it's not just a matter of, you know, 21 did she plead something that a reasonable juror, 22 somebody might think established a gift. We have to 23 construe his allegations as true and apply to the prima 24 facie elements of that claim and see whether or not she 25 establishes a prima facie claim accordingly. And 27 1 because her own pleadings, her own petition demonstrate 2 that there was no in praesenti gift whatsoever but 3 instead it was an in futuro gift, the Fourth Court in 4 the Thompson v Dart case specifically provides that 5 there is no such claim pled in this matter, Your Honor. 6 THE COURT: Thank you. 7 Do you want another moment to respond, or 8 we're going to get to the third element? 9 MR. SMALL: No, ma'am. 10 THE COURT: Okay. Go ahead with the third 11 element. 12 MR. BARBOUR: And the third element, Your 13 Honor, is that we -- 14 THE COURT: I'm sorry, the next cause of 15 action. 16 MR. BARBOUR: Yes, Your Honor. 17 Originally plaintiff had pled her civil 18 conspiracy claim as a civil conspiracy to discriminate 19 and sexually harass plaintiff during her employment with 20 FMP. 21 In the fourth amended petition filed in 22 response to the motion to dismiss, plaintiff has now 23 amended that claim and instead, Your Honor, alleged that 24 it wasn't a conspiracy to discriminate against her, but 25 instead it was a conspiracy to rescind the oral gift of 28 1 real estate to her. 2 As Your Honor knows, the elements of a 3 claim for civil conspiracy -- excuse me, Your Honor -- 4 are that she must establish that were two or more 5 persons, an object to be accomplished, a meeting of the 6 minds, one or more unlawful acts and damages as a 7 result. In this case, Your Honor, plaintiff is alleging 8 this conspiracy to rescind a gift of oral real estate. 9 Looking at her amended petition, Your 10 Honor, she no longer alleges any conspiracy or any acts 11 that were unlawful or overt. Instead she's alleging a 12 gift to -- a claim for conspiracy to rescind the oral 13 gift. 14 Rescission of an oral gift is not a tort 15 and it's not an unlawful conduct, Your Honor. Her oral 16 claim is more or less akin to a declaratory judgment 17 action wherein she's alleging she's the owner and the 18 title owner of this property. Defendants dispute that. 19 And then we have to come before the Court. And the 20 court adjudicates whom the proper owner of that is. But 21 she hasn't alleged, nor is there a gift or wrongful 22 denial of an oral gift of real estate. And because she 23 specifically limited her conspiracy claim just to that 24 recession of an oral gift, even accepting her 25 allegations as true, there's no longer an unlawful or 29 1 overt act. And by that -- by virtue of that, she then 2 is again estopped from asserting a prima facie case of 3 civil conspiracy under Rule 91a. And, therefore, that 4 claim should be dismissed as dictated by the four 5 corners of her own pleading, Your Honor. 6 MS. BROWN: Your Honor, may I respond to 7 the conspiracy claim? 8 And just as a matter of background, 9 Mr. Jones, as I have alleged in here, is a very powerful 10 man who dictates how business is conducted at the office 11 regardless of whether it's in the best interest of the 12 corporation or not. He asked Ms. Jones to live in the 13 Dominican Republic for over five years while she -- 14 while he was holding a baby hostage -- an infant-child 15 hostage. 16 I represent to the Court the facts because 17 I represented Mr. Jones' first wife. 18 During this entire time that she was in the 19 Dominican Republic working 24/7, Mr. Jones repeatedly 20 told her, the minute I get back to the states, you're 21 going to have a home -- because she had been working, 22 like I said, 24/7 helping defend him in the divorce 23 pending here in Bexar County. 24 As a historical background, Mr. Donbavand, 25 who's present here today, is head of the real estate 30 1 portion of this corporation. Mr. Kemp and his wife own 2 this property. They -- when this case gets to court on 3 the facts and I've had an opportunity to depose the 4 different individuals who acted in their individual 5 capacity to -- not in furtherance of the corporate 6 thing, but to defraud Ms. Faire -- they would take 7 affirmative steps, Your Honor, to defraud her. 8 Some of the affirmative steps after 9 Ms. Faire believes she has a gift -- an oral gift of 10 real estate, they've taken us to JP court twice trying 11 to evict her. They're acting not in furtherance of 12 corporate business for all of these businesses that they 13 have, but they're actually knowing that Ms. Faire had 14 been fired, did not have any money, were dragging her 15 back and forth to court. The torts that they committed 16 or the fraud that they perpetrated less -- is a tort. I 17 mean, fraud is a tort. 18 For example -- I will give you an example. 19 Mr. Donbavand here said, here is a lease as a buyer's 20 lease. Mr. Jones is the buyer. In essence, you're the 21 buyer. The facts are convoluted. And I've been working 22 on this case to get the facts straightened out. 23 But going back to have we pled a fraud. We 24 have pled fraudulent acts. 25 I think simply I have to state this, Your 31 1 Honor: These individuals who worked under Mr. Jones 2 outside the course and scope of their duties 3 individually perpetrated a fraud against Ms. Faire that 4 was not limited solely to the gift of the house, but 5 them trying to prove that there had been no gift. And 6 that is a tort under state laws, Your Honor. 7 And we ask -- respectfully request that the 8 Court by denying this particular cause of action gives 9 us an opportunity to go before the trier of fact. This 10 case is set for trial November the 3rd. There's a 11 docket control -- level 3 docket control order in place. 12 And, likewise, Your Honor, if they feel 13 like we're not entitled to that, they have opportunities 14 for motion for summary judgment or special exceptions. 15 THE COURT: Ms. Brown, can you state the 16 lawful -- or unlawful act that occurred. 17 MS. BROWN: Fraud, Your Honor. 18 THE COURT: Could you be more specific? 19 MS. BROWN: Okay. The fraud is this: They 20 go along with Mr. Jones' orders, personal to Mr. Jones, 21 personal to them to participate in fraudulent acts to 22 keep Ms. Faire from having the house -- the rightful -- 23 the rightful thing to house because we feel like, you 24 know, outside of this, Ms. Faire relied on Mr. Jones' 25 promise -- 32 1 THE COURT: I'm sorry, what were the 2 fraudulent acts? 3 MS. BROWN: The fraudulent act was 4 participation in the denial of the fact that Ms. Faire 5 did not have ownership of this house. She's been in 6 this house, Your Honor, for over six months. She's made 7 valuable improvements to this house. And she moved in 8 in reliance -- 9 THE COURT: So the fraud you're saying was 10 that these codefendants indicated -- 11 MS. BROWN: Have acted in numerous ways, 12 Your Honor. 13 THE COURT: Well, the one that you stated 14 is that these defendants denied that your client had 15 ownership? 16 MS. BROWN: Yes, Your Honor. 17 THE COURT: And by denying that your client 18 had ownership, they committed fraud? 19 MS. BROWN: Exactly, Your Honor. 20 THE COURT: Your response, Mr. Barbour. 21 MR. BARBOUR: I have a couple of responses. 22 The first is, respectfully, just as we're bound by 23 plaintiff's live pleading in determining whether or not 24 the Rule 91a motion should be granted, I believe 25 plaintiff should be, as well. She's the master of her 33 1 pleadings. 2 Ms. Brown is arguing that Ms. Faire signed 3 a lease and she relied on this lease. I will represent 4 to the Court that in an attempt to evade that -- the 5 first two grounds for a 91a motion, she has removed from 6 her fourth amended petition, any allegation of that 7 lease. That's not contained anywhere within the fourth 8 amended petition itself. 9 If the Court were to look to prior 10 petitions and see the existence of that lease, that 11 would be the third amended petition, and I would 12 respectfully suggest that if Ms. Brown thinks that that 13 should be considered, then it's quite clear that when 14 Ms. Faire took possession of that Timber Place property, 15 she didn't take possession as an owner; she took 16 possession as a tenant personally to the terms of that 17 lease, which at the very least must require the 18 promissory estoppel and the oral gift claims be 19 dismissed 'cause there's no possible way by her own 20 allegations she can establish a claim as to either of 21 those. 22 More specifically as to this conspiracy 23 claim, I hear Ms. Brown saying that Ms. Faire alleges 24 that defendants have acted together, that she believes 25 she's been defrauded somehow. The fraud claim has been 34 1 dropped. There's no fraud claim within the four corners 2 of the fourth amended petition. I believe -- I'm 95 3 percent confident, Your Honor, that if you searched, you 4 wouldn't find the word "fraud" anywhere within that 5 petition whatsoever. There's no allegation of fraud 6 here. 7 If we look at page -- well, Count 2 of your 8 plaintiff's fourth amended petition, paragraphs 35 to 9 37, she alleges that defendants acting outside their 10 corporate duties specifically acted to rescind the oral 11 gift of real estate to plaintiff. 12 That's what she's alleging. That's the 13 conspiracy -- to rescind this oral gift of real estate. 14 Generally alleging a conspiracy to engage 15 in an act does not entitle her to relief under Rule 91a. 16 She has to show an unlawful affirmative overt act taken 17 by each of the defendants against whom this conspiracy 18 claim is alleged. Because she's simply alleging that 19 they're conspiring to rescind this oral gift, which is 20 not a tort, which is not fraudulent, which is not an 21 unlawful act, she's not established the prima facie 22 element of the claim within the four pleadings of her 23 own petition. And, therefore, Your Honor, we would 24 suggest and respectfully request that the conspiracy 25 claim be dismissed under Rule 91a. 35 1 MR. SMALL: Your Honor, the standard by 2 which the pleadings are judged here and everywhere in 3 Texas is fair notice. And we don't have to use the word 4 "fraud" in here to have alleged an overt unlawful act to 5 support a conspiracy claim. We don't have to use magic 6 words. 7 The gist of this whole pleading is that 8 Mr. Jones, Mr. Donbavand, and Mr. Kemp conspired to do 9 Ms. Faire out of a gift that she was promised and which 10 she relied on in incurring moving expenses and making 11 improvements. And this was all, you know, wrapped up in 12 her working for him for an extended period of time, et 13 cetera, et cetera. And the machinations, which were 14 driven by Mr. Jones, who's the kingpin CEO of these 15 corporations -- the question again comes back to what 16 could a reasonable person believe. And if they believe 17 that she was defrauded out of a gift, whether or not the 18 Court believes that she was given an oral gift of real 19 estate, the conspiracy claim still stands. 20 THE COURT: And can you direct in your 21 fourth amended petition as to the specific language that 22 you're relying upon wherein if read on its face would 23 prove your cause of action. 24 MR. SMALL: Well, first of all, Your Honor, 25 I would take issue with the Court's use of the word 36 1 "prove," but I would direct the Court to paragraphs 11 2 through -- you know, just as a starter 11 through 24 in 3 the statement of facts that set out the course of events 4 that occurred here. 5 MR. BARBOUR: Would Your Honor entertain a 6 response to that or -- 7 THE COURT: In just a moment. 9 (Short pause.) 10 THE COURT: We're back on the record. 11 Mr. Small, help me out here. Are you 12 saying that the fraud is within -- begins paragraph 11. 13 Specifically, what I am reading in a nutshell is that 14 the codefendants are employed by Mr. Jones and were 15 following his directions. And you believe that 16 according to the -- there's -- I'm not sure how they 17 defrauded her. I agree that according to the pleadings, 18 they state he followed his directive -- direction that 19 they were somehow involved in trying to evict her or 20 somehow involved in the repossession of a vehicle or so, 21 but I don't know how that constitutes an unlawful act on 22 its face. 23 MR. SMALL: Well, first of all, Your Honor, 24 it's -- there -- it not only says facts but inferences 25 therefrom, but, you know, here she's been given a gift, 37 1 but, you know, Donbavand and Kemp are working with Jones 2 to throw her out of a house that's supposedly hers. 3 And, you know, Your Honor, it's -- you know, does it 4 say, you know, one, two, three, this is specifically 5 what, you know, Mr. Kemp did or what Mr. Donbavand did, 6 you know, on "X" day? No, it does not. But for notice 7 pleadings, you don't have to do that. 8 And my point is here and the oral gift 9 is -- we get over that very minimal hump. 10 THE COURT: Mr. Barbour, I'll allow a 11 response -- a short one as we are way over our time. 12 MR. BARBOUR: Yes, Your Honor. 13 THE COURT: I'd like to hear your response. 14 MR. BARBOUR: Rather briefly, Your Honor, 15 you are -- plaintiff is entitled to reasonable 16 inferences from her pleadings. Rule 91a by its terms 17 expressly requires dismissal of cause of action for no 18 basis in fact if the allegations within the four corners 19 of the petition taken as true together with the 20 inferences reasonably drawn from them don't entitle her 21 to relief. 22 Mr. Small -- Ms. Faire is alleging that 23 this conspiracy was to deny her this gift of property. 24 Accepting that as true -- and even all reasonable 25 inferences from that -- there's no unlawful act 38 1 committed in furtherance of this conspiracy within the 2 four corners of that petition. It's a title -- contest 3 title in the property. 4 In the absence of any reasonable inference 5 showing an unlawful overt act committed in furtherance 6 of this conspiracy, Rule 91a dictates if there's no 7 cause of action or there's no basis in law for this 8 cause of action and -- it ought to be dismissed, Your 9 Honor. 10 THE COURT: On a scale of one to ten, how 11 strongly do you feel about that if challenged on appeal, 12 Mr. Barbour? 13 MR. BARBOUR: Based on the four corners of 14 the fourth amended petition, I would give it an eight I 15 think, Your Honor. 16 THE COURT: Ms. Brown, you know how much I 17 respect you and Mr. Small, as well -- 18 MS. BROWN: May I just address the Court 19 just very briefly, Your Honor? And give the Court a 20 historical thing. The Court must be informed that all 21 of the records concerning how they manipulate and try to 22 defraud her, all of the records are in the hands of the 23 defendants. So we've given them fair notice. We cannot 24 give them the specific details that Mr. Barbour is 25 requiring because we have not had access to all of 39 1 these. 2 We've been before Judge Sakai, who has 3 denied their motion for protective order and compelled 4 them to give us the information. And like basically 5 employment cases or other tort cases where all of the 6 information is in the hands of that defendant, it is 7 very difficult for the plaintiff to say, this is how you 8 defrauded me, you changed title to the property back and 9 forth so that we can (sic) address the issue of current 10 ownership or -- 11 They've done numerous things, Your Honor, 12 that we cannot in all reasonables (phonetic) tell you 13 this is what they did because we don't have all of the 14 evidence that we requested. 15 This case was filed in October of 2014. We 16 were very diligent in sending out requests for 17 depositions, requests for identification of documents. 18 We have done our best. 19 And, Your Honor, I think all that is 20 required of us at this time is fair notice. And we're 21 saying in our pleadings, you have acted in a manner that 22 amounts to defrauding Ms. Faire of an oral gift of real 23 estate. 24 At this time, Your Honor, I wish I could 25 offer the Court more because I know that this Court 40 1 listens to everything that we want to bring, but our 2 hands are tied. Our hands are tied because in spite of 3 our diligence in getting requests for discovery 4 immediately, requests for depositions immediately, 5 they've all been quashed. And that is why, Your Honor. 6 But the fair notice -- there's a reasonable 7 inference that this Court can make that these gentlemen 8 who held the power, who held the documents acted in an 9 unlawful way. 10 THE COURT: Thank you, Ms. Brown. 11 MS. BROWN: Thank you, Your Honor. 12 THE COURT: And the Court has absolutely no 13 doubt in the diligence of counsel and the hard work of 14 counsel, but like you, my hands are tied. 15 Your motion is granted, Mr. Barbour. 16 Please prepare the order. 17 We are adjourned. 18 (Proceeding concluded.) 25 41 14 preparation of this Reporter's Record is $ 220.00 15 and was paid by Ms. Olga Brown . 16 To which I certify on this the 8th day of 17 April , 2015. 21 /s/ Mary Martinez Mary Martinez, CSR 5943 22 57th District Court Bexar County Courthouse 23 100 Dolorosa Street San Antonio, Texas 78205 24 Telephone: 210.335.1602 Exp: 12-31-2016 25 Appendix 30 1 1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME 2 TRIAL COURT CAUSE NO. 2014-CI-16674 3 CEARTH FAIRE ) IN THE DISTRICT COURT 4 ) ) 5 VS. ) 150TH JUDICIAL DISTRICT ) 6 ) FMP SA MANAGEMENT GROUP, LLC, ) 7 ET AL. ) BEXAR COUNTY, TEXAS ******************************************************* 8 MOTION FOR NEW TRIAL 9 ******************************************************* 10 3 MR. JEFFREY SMALL SBOT NO. 00793027 4 12451 Starcrest Drive, Suite 100 San Antonio, Texas 78216 5 Phone: (210) 496-0611 Appearing for Cearth Faire 6 7 MS. OLGA BROWN SBOT NO. 03155500 8 111 Soledad Street, Suite 1725 San Antonio, Texas 78205 9 Phone: (210) 226-1550 Appearing for Cearth Faire 10 11 MR. JUSTIN J. BARBOUR SBOT NO. 24055142 12 17806 West IH 10, Suite 400 San Antonio, Texas 78257 13 Phone: (210) 447-8033 Appearing for FMP SA Management Group, LLC, 14 et al. 3 MARCH 18, 2015 PAGE VOL. 4 Appearances.............................. 2 1 5 Court Reporter's Certificate............. 28 1 6 13 Mr. Small kind of close it if that's all right with Your 16 out and then -- well, this is what we'll -- give me the 19 chime in -- I don't need opening, I don't necessarily 25 Mr. Barbour. If there's any reply necessary in between, 6 5 did wrong at all, but here's where I -- the reason that 6 we're asking this morning that you deny the motion on -- 18 rules. And I would like to direct the Court's attention 9 action that we're adding. And in all fairness we filed 16 is done in three instances. And I'll be really brief. 4 an -- a document or a affidavit, let's say an insurance 6 states that there's no coverage or he's not a named 8 Honor, and it's only on those three case -- those three 16 estate is a viable cause of action. It's a recognized 16 motion to dismiss, he alleges that there's no cause of 12 therefore, Your Honor, we're saying please reconsider 6 in FMP's live 91(a) motion so consequently that too is 17 moment, but first Your Honor hadn't quite asked whether 25 plaintiff's sexual harassment claim, which is not at 13 5 Your Honor, that's what I'm looking at as well. I 25 reverse the Court's decision on the motion to dismiss or 14 5 bring the Court's attention to a different part of your 16 next we're turning to the property-related claims where 19 title to a home that she's living in currently without 25 March 18th hearing and therefore can't be the subject of 15 9 nonsuited or amended, that it's beyond the Court's 11 there's no substantive difference between the nature of 25 to dismiss hearing, but that's neither warranted nor 17 10 defendants challenge plaintiff's claim for an oral gift 19 whatsoever and she's bound to her prior pleadings, which 23 that I respectfully take issue I think with Mr. Small's 24 interpretation and Ms. Brown's interpretation of Rule 23 plaintiffs can't recover and their claim has no basis in 2 plaintiff's argument again at this point is essentially 5 somehow beyond the Court's reach and the Court could not 11 can't go forward. It allows the plaintiff the option to 17 and to see whether there's a basis in law or a basis in 22 dismissing plaintiff's property-related claims and her 25 authority to the Court and to Mr. Barbour because if -- 23 3 dropped them out of the case. So, you know, that's the 13 occur and there's a nonsuit pleading a plaintiff has to 15 claim. And under Texas' notice pleading standards, you 16 know, headings frankly are irrelevant to a plaintiff's 18 pleading that we're looking at. So whether a plaintiff 5 we're left in this gray area. And plaintiff having not 6 that the motion to dismiss is defective or can't proceed 8 affirmative duty. If they're wanting to argue that the 10 Rule 91(a)(2) must specifically address it and that it's 11 insufficient, that's not at all spelled out there, Your 13 for a ruling on that motion at that time and it wasn't 14 raised, you know, as a formal objection. It's an aside 15 that doesn't at all raise these issues for the Court's 17 was made today. Only that case. And he's going to get 19 Mr. Barbour -- I don't know if you're doing anything 5 then -- I have lunch between 12:00 and 1:30 and I don't 6 have a judges' meeting at lunch so -- just so you know 7 the Court's schedule. But with that, I appreciate your 9 coming to the 57th this morning. And y'all are excused. 21 /s/ Mary Martinez Mary Martinez, CSR 5943 22 57th District Court Bexar County Courthouse 23 100 Dolorosa Street San Antonio, Texas 78205 24 Telephone: 210.335.1602 Exp: 12-31-2016 25 Appendix 31 EEOC FORM 131-A(1~- v9) U.S. Equal Employment Opportunity Commission PERSON FILING CHARGE I I Cearth Faire THIS PERSON (check one or both) Human Resources Director FOOD MANAGEMENT PARTNERS INC./ALL JONES LLC ~ Claims To Be Aggrieved 120 Chula Vista Hollywood Park, TX 78232 D Is Filing on Behalf of Other(s) EEOC CHARGE NOC 31 C-2015-00783 I _j FEPA CHARGE NOC 1A15377 NOTICE OF CHARGE OF DISCRIMINATION IN JURISDICTION WHERE A FEP AGENCY WILL INITIALLY PROCESS (See the enclosed for additional information) THIS IS NOTICE THAT A CHARGE OF EMPLOYMENT DISCRIMINATION UNDER [}<] Title VII ofthe Civil Rights Act (Title VII) 0 The Equal Pay Act (EPA) D The Americans with Disabilities Act (ADA) D The Age Discrimination in Employment Act (ADEA) 0 The Genetic Information Nondiscrimination Act (GINA) HAS BEEN RECEIVED BY D The EEOC and sent for initial processing to (FEP Agency) [RJ The Texas Workforce Commission Civil Rights Division and sent to EEOC for dual filing purposes. (FEP Agency) While EEOC has jurisdiction (upon expiration of any deferral requirement if this is a Title VII, ADA or GINA charge) to investigate this charge, EEOC may suspend its investigation and await the issuance of the Agency's final findings and orders. These findings and orders will be given weight by EEOC in making its own determination as to whether reasonable cause exists to believe that discrimination has occurred. You are therefore encouraged to cooperate fully with the Agency. All facts and evidence provided by you to the Agency will be considered by EEOC when it reviews the Agency's final findings and orders. In many cases EEOC will take no further action, thereby avoiding the necessity of an investigation by both the Agency and EEOC. This likelihood is increased by your active cooperation with the Agency. As a party to the charge, you may request that EEOC review the final findings and orders of the above-named Agency. For such a request to be honored, you must notify EEOC in writing within 15 days of your receipt of the Agency's final decision and order. If the Agency terminates its proceedings without issuing a final finding and order, you will be contacted further by EEOC. Regardless of whether the Agency or EEOC processes the charge, the Recordkeeping and Non-Retaliation provisions of the statutes as explained in the enclosed information sheet apply. For further correspondence on this matter, please use the charge number(s) shown above. Enclosure(s): Copy of Charge CIRCUMSTANCES OF ALLEGED DISCRIMINATION D Race 0 Color [}9 Sex D Religion 0 National Origin D Age 0 Disability D Retaliation D Genetic Information D Other See enclosed copy of chargj of discrim~on~---- __ Date ~uthorized Official s7L ~~ ks, February 23, 2015 r __7~ ./ DEF-CF-00608 Enclosure with EEOC Form 131 (11109) INFORMATION ON CHARGES OF DISCRIMINATION EEOC RULES AND REGULATIONS Section 1601.15 of EEOC's regulations provides that persons or organizations charged with employment discrimination may submit a statement of position or evidence regarding the issues covered by this charge. EEOC's recordkeeping and reporting requirements are found at Title 29, Code of Federal Regulations (29 CFR): 29 CFR Part 1602 (see particularly Sec. 1602.14 below) for Title VII and the ADA; 29 CFR Part 1620 for the EPA; and 29 CFR Part 1627, for the AD EA. These regulations generally require respondents to preserve payroll and personnel records relevant to a charge of discrimination until disposition of the charge or litigation relating to the charge. (For ADEA charges, this notice is the written requirement described in Part 1627, Sec. 1627.3(b)(3), .4(a)(2) or .5(c), for respondents to preserve records relevant to the charge- the records to be retained, and for how long, are as described in Sec.1602.14, as set out below). Parts 1602, 1620 and 1627 also prescribe record retention periods- generally, three years for basic payroll records and one year for personnel records. Questions about retention periods and the types of records to be retained should be resolved by referring to the regulations. Section 1602.14 Preservation of records made or kept. .... Where a charge ... has been filed, or an action brought by the Commission or the Attorney General, against an employer under Title VII or the ADA, the respondent ... shall preserve all personnel records relevant to the charge or the action until final disposition of the charge or action. The term personn~l records relevant to the charge, for example, would include personnel or employment records relating to the aggrieved person and to all other aggrieved employees holding positions similar to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by all other candidates or the same position as that for which the aggrieved person applied and was rejected. The date of final disposition of the charge or the action means the date of expiration of the statutory period within which the aggrieved person may bring [a lawsuit] or, where an action is brought against an employer either by the aggrieved person, the Commission, or the Attorney General, the date on which such litigation is terminated. NQTICE OF NON-RETALIATION REQUIREMENTS Section 704(a) of Title VII, Section Z07(f) of GINA, Section 4(d) of the ADEA, and Section 503(a) of the ADA provide that it is an unlawful employment practice for an employer to discriminate against present or former employees or job applicants, for an employment agency to discriminate against any individual, or for a union to discriminate against its members or applicants for membership, because they have opposed any practice made an unlawful employment practice by the statutes, or because they have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the statutes. The Equal Pay Act contains similar provisions. Additionally, Section 503(b) of the ADA prohibits coercion, intimidation, threats, or interference with anyone because theY have exercised or enjoyed, or aided or encouraged others in their exercise or enjoyment, of rights un~,er the Act. Persons filing charges of discrimination are advised of these Non-Retaliation Requirements and are instructed to notify EEOC if any attempt at retaliation is made. Please note that the Civil Rights Act of 1991 provides substantial additional monetary provisions to remedy instances of retaliation or other discrimination, including, for example, to remedy the emotional harm caused by on-the-job harassment. NOTICE REGARDING REPRESENTATION BY ATTORNEYS Although you do not have to be represented by an attorney while we handle this charge, you have a right, and may wish to retain an attorney to represent you. If you do retain an attorney, please give us your attorney's name, address and phone number, and ask your attorney to write us confirming such representation. DEF-CF-00609 DEF-CF-00610 Appendix 32 MAILING ADDRESS (512) 463-2642 Main 101 East 151h Street, Room 144T (512) 463-2643 Fax Austin, TX 78778-0001 (888) 452-4778 Toll Free www.twc.state.tx.us (800) 735-2989 Texas Relay EEOMediation@twc.state.tx.us Texas Workforce Commission Civil Rights Division RESPONDENT NOTICE OF CHARGE OF DISCRIMINATION AND INVITATION TO MEDIATE February 19, 2015 FOOD MANAGEMENT PARTNERS INC./ALL JONES LLC 120 Chula Vista, Hollywood Park, TX 78232 Reference: Cearth Faire v. FOOD MANAGEMENT PARTNERS INC./ALL JONES LLC TWCCRD Charge No.: 1A15377 EEOC Charge No.: 31 C-2015-00783C To Whom It May Concern: A Charge of Discrimination has been filed against your organization with the Texas Workforce Commission, Civil Rights Division (TWCCRD). Enclosed is a copy of the Charge of Discrimination, the Mediation Invitation, and detailed instructions to assist you in responding to our request for a Respondent's Position Statement and supporting documentation. It has been determined that the above referenced Charge of Discrimination is eligible to participate in the TWCCRD Mediation program. You are cordially invited to participate in our free, voluntary and confidential Mediation program. Our mediation process is initiated before an investigation begins. Most of our mediations are completed in one session. While the time required for mediation varies, the mediation session commonly involves one-half day. Successful mediation results in the closure of the Charge. If mediation is unsuccessful, the Charge is referred for investigation. Please complete and return the Respondent's Mediation Invitation by no later than 14 calendar days from the date of this letter. The TWCCRD has used mediation as an alternative approach since 1995. TWCCRD's trained mediators utilize appropriate techniques to resolve employment discrimination complaints. Complaints that have not been successfully mediated will be referred promptly for investigation, unless the TWCCRD has determined there are extenuating circumstances. The TWCCRD mediation scheduler will contact both parties to schedule a voluntary mediation session. Once the mediation session has been scheduled, your assigned mediator will contact you to provide information about the process and answer any questions you may have about mediation. The TWCCRD requests both parties to be prepared to schedule a mediation date within the next month. If either party does not agree to mediate or if the mediation is unsuccessful, your Charge will be transferred to Investigations. Submit the Position Statement and Supporting Documentation within 7 calendar days after you have declined mediation or mediation fails. Please be advised that your case will be assigned to an investigator who will contact you. The Instructions for Position Statement and Supporting Documentation sheet provides guidance to respondents about the information that must be submitted to the TWCCRD. Please note that TWCCRD may request additional information relevant to the Charge. Feel free to contact us if additional clarification about the investigation process. Failure to submit the requested documentation may result in the TWCCRD recommending a finding of cause against your organization based on the available evidence. DEF-CF-00611 Page 2 of 2 If you are represented by legal counsel, please include the legal counsel's name address, e-mail address and telephone number in a letter sent to the TWCCRD or on the enclosed Respondent's Mediation Invitation form. Upon receipt of the legal representation statement, all further communication is forwarded to your legal counsel. If you have questions, please call the TWCCRD at (512) 463-2642 or our toll free number (888) 452-4778. Thank you for your time and consideration. Texas Workforce Commission Civil Rights Division Enclosures: Copy of Charge of Discrimination Instructions for Position Statement and Supporting Documentation Unsworn Declaration Mediation Invitation and Brochure DEF-CF-00612 MAILING ADDRESS: (512) 463-2642 Main 1 101 East 15 " Street, Room 144T (512) 463-2643 Fax Austin, TX 78778-0001 (888) 452-4778 Toll Free www.twc.state.tx.us (BOO) 735-2989 Texas Relay EEOMediation@twc.state.tx.us Texas Workforce Commission Civil Rights Division RESPONDENT'S MEDIATION INVITATION Reference: Cearth Faire v. FOOD MANAGEMENT PARTNERS INC./ALL JONES LLC TWCCRD Charge No.: 1A15377 EEOC Charge No.: 31 C-2015-00783C Please initial the appropriate line below to indicate if you will/will not participate in mediation. By choosing to participate, you are indicating that you understand mediation is voluntary. If both the Complainant and Respondent agree to participate in mediation, a TWCCRD mediation scheduler will contact you to discuss further details and schedule a mediation session. Please return this form to TWCCRD within fourteen calendar days of the date of this letter: If we have not received a response from you or your legal representative by that date, we will assume that you are not interested in participating in our Mediation program. Your complaint will be transferred to Investigations at that time. Respondent will participate in mediation. Respondent will not participate in mediation. Please complete below: Respondent Printed Name Respondent's Signature Telephone Number E-mail Address Date Signed Represented by Legal Counsel? o YES o NO If YES, please provide contact legal representative information below: Respondent Legal Representative Contact Name Respondent Legal Representative Firm's Name Street Address E-mail Address Telephone Number City, State, Zip Code Form 130-C R Mediation Letter Contact Person DEF-CF-00613 MAILING ADDRESS: (512) 463-2642 Main 1 101 East 15 " Street, Room 144T (512) 463-2643 Fax Austin, TX 78778-0001 (888) 452-4778 Toll Free www.twc.state.tx.us (800) 735-2989 Texas Relay EEOMediation@twc.state.tx.us Texas Workforce Commission Civil Rights Division INSTRUCTIONS FOR POSITION STATEMENT AND SUPPORTING DOCUMENTATION NOTE: If either party does not agree to mediate or if the mediation is unsuccessful, the Respondent must submit the Position Statement and Supporting Documentation. Please be prepared to submit the Position Statement and Supporting Documentation within 7 calendar days after the case is transferred to Investigations. Failure to submit the requested documentation may result in the TWCCRD recommending a finding of cause against your company/agency based on the available evidence. The Position Statement must address each allegation made in the Complainant's Charge of Discrimination and each of the items below. Provide copies of any documentation that supports the Position Statement. Please clearly identify or label the Respondent's Position Statement and Supporting Documentation. Documentation provided to us in support of the Respondent's position will not be released to the Complainant while the investigation is open. However, the Complainant may obtain the investigation file under the Texas Public Information Act after the investigation closes. A summary of your position and documentation will be prepared and sent to the Complainant for a rebuttal. The Position Statement must include the following: (1) The full legal name and address of the Respondent, including if applicable, the relationship to and name and address of any parent company or agency. (2) The name, title and address of the individual(s) most directly responsible for managing the company or agency. (3) The number of employees currently employed by the Respondent. (4) A detailed statement that completely responds to each allegation in the Charge of Employment Discrimination. (5) A copy of the following information or documentation: a. Policies and procedures regarding Equal Employment Opportunity (EEO), including complaint reporting procedures. b. Written statements from all persons involved or that witnessed the actions identified in the Charge of Discrimination c. A list of similarly-situated employees working in the last 2 years, including position title, the date and reason for the action taken for each employee listed d. Any other documentation to support the reason for the adverse personnel action. You may submit your Position Statement and Supporting Documentation by email to EEOintake@twc.state.tx.us, fax to (512) 463-2642 or mail to 101 East 15th Street, #144-T, Austin, Texas 78778-0001. Failure to fully and completely respond to all information requested may result in an in person investigation at the worksite or the issuance of a subpoena under Texas Labor Code Sections 21.003(4) and 21.306. Please understand that Texas Labor Code Section 21.055 prohibits retaliation against a person who has filed, testified, assisted or participated in any manner in an investigation of a complaint of discrimination under Chapter 21 of the Texas Labor Code. DEF-CF-00614 UNSWORN DECLARATION (Civil Practice and Remedies Code, Chapter 132) My name is-----,=---,-------,-..,....,----,--------------- (First) (Middle) (Last) my date of birth is --...,..-,,....,-,:-::-.,....,-.,....,-,.---; and my address is (MM/DD/YYYY) _ _ , -:=----::----:--c:- (Street) (City) (State) (Zip Code) and ______~--,---,------- (County) Executed in -------:-::-----:--:-------- County, State of _ _, on the day (County) (State) (Day) of _______7.7~--,--------- -~~~-- (Month) (Year) (Signature) DEF-CF-00615 EEOC Form 212-A (3/98) U.S. Equal Employment Opportunity Commission TO: San Antonio Field Office Date February 11, 2015 541 0 Fredericksburg Ad EEOC Charge No. Suite 200 31 C-2015-00783 San Antonio, TX 78229 FEPA Charge No. 1A15377 CHARGE TRANSMITTAL SUBJECT: Cearth Faire V. FOOD MANAGEMENT PARTNERS INC./ALL JONES LLC Charging Party Respondent D Transmitted herewith is a charge of employment discrimination initially received by the: EEOC [g) Texas Workforce Commission Civil Rights Division on January 28, 2015 NameofFEPA Date of Receipt D Pursuant to the worksharing agreement, this charge is to be initially investigated by the EEOC. G Pursuant to the worksharing agreement, this charge is to be initially investigated by the FEPA. D The worksharing agreement does not determine which agency is to initially investigate the charge. 0 EEOC requests a waiver D FEPA waives 0 No waiver requested D FEPA will investigate the charge initially Please complete the bottom pot1ion of this form to acknowledge the receipt of the charge I and, where appropriate, to indicate whether the Agency will initiafly investigate the charge. Typed Name of EEOC or FEPA Official Signature/Initials '-:l. /_/~ lowell Keig £'--/' / ;:;> /0 Cearth Faire v. FOOD MANAGEMENT PARTNERS INC./ALL JONES LLC Charging Party Respondent TO WHOM IT MAY CONCERN: 0 This will acknowledge receipt of the referenced charge and indicate this Agency's intention to initially investigate the charge. 0 This will acknowledge receipt of the referenced charge and indicate this Agency's intention not to initially investigate the charge. D This will acknowledge receipt of the referenced charge and request a waiver of '1n'1tial investigation by the receiving agency. D This will acknowledge receipt of the referenced charge and indicate this Agency's intention to dismiss/close/not docket the charge for the following reasons: Typed Name of EEOC or FEPA Official Travis Hicks, Director I Signature/Initials TO: Texas Workforce Commission Civil Rights Division Date February 11,2015 101 East 15th St EEOC Charge No. Room 144T 31 C·2015-00783 Austin, TX 78778 FEPA Charge No. 1A15377 DEF-CF-00616 E£OCF,;tm5 Agency0es) Charge No(s):. CHARGE OF '-"''''"'" This forin iS-atre,cted Oy the PriVacy Act Statement and otlienn~rmatioobe(ofll e<>mJlleling iAiSJ7/ ' . . . : ' ~J~~~C0un¥,Siala 01 Toxas,ontll DEF-CF-00617 Appendix 33 EEOC Form 161 (11 /09) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION DISMISSAL AND NOTICE OF RIGHTS To: Cearth Faire From: San Antonio Field Office c/o Olga Brown 541 O Fredericksburg Rd Law Office of Olga Brown Suite 200 111 Soledad, Ste. 1725 San Antonio, TX 78229 San Antonio, TX 78205 D On behalf of person(s) aggrieved whose identity is CONFIDENTIAL (29 CFR §1601. 7(a)) EEOC Charge No. EEOC Representative Telephone No. Jaime Valdez, 31C-2015-00783 State & Local Coordinator (210) 281-7661 THE EEOC IS CLOSING ITS FILE ON THIS CHARGE FOR THE FOLLOWING REASON: D The facts alleged in the charge fail to state a claim under any of the statutes enforced by the EEOC. D Your allegations did not involve a disability as defined by the Americans With Disabilities Act. D The Respondent employs less than the required number of employees or is not otherwise covered by the statutes. D Your charge was not timely filed with EEOC; -in other words, you waited too long after the date(s) of the alleged . discrimination to file your charge D The EEOC issues the following determination: Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge. D The EEOC has adopted the findings of the state or local fair employment practices agency that investigated this charge. CK] Other (briefly state) Charging Party filed suit in court of competent jurisdiction. - NOTICE OF SUIT RIGHTS - (See the additional information attached to this form.) Title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Age Discrimination in Employment Act: This will be the only notice of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost. (The time limit for filing suit based on a claim under state law may be different.) Equal Pay Act (EPA): EPA suits must be filed in federal or state court within 2 years (3 years for willful violations) of the alleged EPA underpayment. This means that backpay due for any violations that occurred more than 2 years (3 years) before you file suit may not be collectible. Enclosures( s) Oc+. k, d--o!S l (Date Mailed) cc: Food Management Partners Inc. All Jones LLC c/o Christine E. Reinhard Schmoyer Reinhard LLP 17806 IH 10 West, Ste. 400 San Antonio, TX 78257 Appendix 34 DISMISSAL NOTICE TO: FROM: Texas Workforce Commission Cearth Faire Civil Rights Division 8647 Timber Place 101 East 15th Street, Room 144T San Antonio, TX 78250 Austin, TX 78701-1919 TWCCRD Charge No. EEOC Charge No. TWCCRD Representative 1A15377 31 C-2015·00783C Kermesha L. Carter The TWCCRD is closing its file Cearth Faire v. FOOD MANAGEMENT PARTNERS INCJALL JONES LLC for the following reason: [J The facts alleged in the charge fail to state a claim under any of the statutes enforced by the TWCCRD. [ ] Your allegations did not involve a disability that is covered by the Americans with Disabilities Act or the Texas Commission on Human Rights Act. [ ] The Respondent employs less than the required number of employees or not otherwise covered by the statutes. [ ] We cannot investigate your charge because it was not filed within the time limits required by law. [ ] Having been given 30 days in which to respond, you failed to provide information, failed to appear or be available for interviews/conferences, or otherwise failed to cooperate to the extent that it was not possible to resolve your charge. [ ] While reasonable efforts were made to locate you, we were not able to do so. [ ] You had 30 days to accept a reasonable settlement offer that afforded full relief for the harm you alleged. You failed to accept the full relief. [l The TWCCRD issues the following determination: Based upon its investigation, the TWCCRD is unable to conclude that the information obtained establishes any violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge. [ X] Other (briefly state): No Jurisdiction; Lawsuit filed on behalf of CP in state court prior to conclusion of Division's Investigation On behalf of the Division Olga Brown LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 . San Antonio, TX 78205 ~~ Michelle Goodwinl Employment Investigations Mgr. SCHMOYER AND REINHARD LLP FOOD MANAGEMENT PARTNERS INC./ALL JONES Justin Barbour LLC 17806 IH 10 West Suite 400 120 Chula Vista San Antonio, TX 78257 Hollywood Park, TX 78232 Appendix 35 CAUSE NO. 2014-CI-16674 CEARTH FAIRE, § IN THE DISTRICT COURT Plaintiff, § § v. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, LLC, § D/B/A FOOD MANAGEMENT § PARTNERS, LLC, ALL JONES, LLC, § ALLEN J. JONES, INDIVIDUALLY, AND § PETER DONBAVAND, INDIVIDUALLY, § BEXAR COUNTY, TEXAS Defendants. § § DEFENDANT ALLEN J. JONES’S FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION TO PLAINTIFF CEARTH FAIRE TO: PLAINTIFF, CEARTH FAIRE, by and through her attorneys of record, Olga Brown, of the Law Office of Olga Brown, 111 Soledad, Suite 1725, San Antonio, Texas 78205. Defendant ALLEN J. JONES propounds the following Interrogatories and Requests for Production of Documents on Plaintiff Cearth Faire (“Faire” or “Plaintiff”). Pursuant to Rules 193, 196, and 197 of the Texas Rules of Civil Procedure, you are advised that the Responses to these Interrogatories must be answered separately, in writing, and under oath, within thirty (30) days from the date of service hereof, and delivered to Christine E. Reinhard, Schmoyer Reinhard LLP, 17806 IH 10 West, Suite 400, San Antonio, Texas, 78257. You are also advised that all documents requested for production should be delivered to Christine E. Reinhard, Schmoyer Reinhard LLP, 17806 IH 10 West, Suite 400, San Antonio, Texas, 78257. You are further advised that these Interrogatories, together with your sworn Responses thereto, as well as documents produced, may be offered in evidence at the trial of the above action. Also, you are advised that these Interrogatories and Requests for Production of Documents are continuing in nature, and must be supplemented upon receipt of additional or different information by you or your attorney. 1 I. Definitions and Instructions 1. Any reference to memoranda or other documentary material herein refers both to originals and copies of the memoranda or documents now in the possession, custody or control of the Plaintiffs and/or such memoranda or documents which the Plaintiffs may have given to a third party. 2. “Person” means the plural as well as the singular and includes any natural person and any firm, corporation, association, partnership, or other form of legal entity, unless the contents of the interrogatory indicate otherwise. 3. “Individual” means the plural as well as the singular and refers only to natural persons. 4. “Perjury” is the willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his or her evidence, either upon oath or in any form allowed by law to be substituted for an oath, where such evidence is given in open court, or in an affidavit, or otherwise, such assertion being material to the issue or a point of inquiry and known to such witness to be false. 5. “Identify” with respect to persons means to give, to the extent known, the person’s full name, present or last known address and telephone number and, when referring to a natural person, additionally the present or last known place of employment. 6. “Identify” with respect to documents means to give, to the extent known, the type of document, the general subject-matter, the date of the document, the author(s), addressee(s), and recipient(s). 7. “Document” means any printed, typewritten, handwritten, mechanically or otherwise recorded matter of whatever character, including, but not limited to, letters, purchase orders, memoranda, telegrams, notes, catalogues, brochures, diaries, reports, calendars, inter- or intra-office communications, statements, investigative reports, announcements, depositions, answers to interrogatories, pleadings, judgments, newspaper articles, drawings, graphs, charts, photographs, records, tape recordings (including audio, video, or digital), motion pictures, computer information, and other data compilations from which information can be obtained, INCLUDING ANY ELECTRONIC STORED INFORMATION, and including any draft versions of any of the foregoing, and any carbon or photographic copies of any such material if you do not have custody or control of the original. If any document requested to be identified or produced was but is no longer in your possession or control or is no longer in existence, state whether it is: a. Missing or lost; b. Destroyed; c. Transferred voluntarily or involuntarily to others and, if so, to whom; d. Otherwise disposed of; 2 and in each instance explain the circumstances surrounding the document passing from your possession or control or the document no longer being in existence, including relevant dates, and describe the contents of each such document. 8. Responsive documents in the form of Electronically Stored Information must be produced in “native file” state, i.e., as the document is stored and including complete and unaltered embedded data and/or metadata. 9. “Plaintiff,” “Faire,” “you,” or “your” means Plaintiff Cearth Faire, as well as all agents, employees, attorneys, investigators, and other persons acting for or on behalf of Cearth Faire. 10. “FMP” means Defendant FMP SA Management Group d/b/a Food Management Partners, as well as all agents, employees, attorneys, investigators and other persons acting for FMP SA Management Group d/b/a Food Management Partners. 11. “All Jones” means Defendant All Jones, LLC, as well as all agents, employees, attorneys, investigators and other persons acting for All Jones, LLC. 12. “Donbavand” means Defendant Peter Donbavand, as well as all agents, employees, attorneys, investigators and other persons acting for Peter Donbavand. 13. “Jones” means Defendant Allen Jones, as well as all agents, employees, attorneys, investigators and other persons acting for Allen Jones. 14. “Petition” means your Third Amended Petition and any amendments or supplements thereto. 16. The word “and” as well as “or” shall be construed disjunctively or conjunctively as necessary to bring within the scope of these requests and interrogatories, all facts, documents, things or communications that might otherwise be construed as outside the scope of these requests and interrogatories. 17. “Relating to,” “relates to,” and “regarding” mean, without limitation, relating to, constituting, concerning, mentioning, referring to, describing, summarizing, evidencing, listing, relevant to, demonstrating, or tending to prove, disprove, or explain. 18. “Health care provider” means any hospital, clinic, physician, nurse, chiropractor, social worker, psychologist, therapist, or counselor. 1. If you discover new information, you are obligated to supplement your responses to these interrogatories under the Texas Rules of Civil Procedure. 3 2. If you object to furnishing any information requested by these interrogatories on the grounds of privilege, work product or otherwise, your response should state the existence of the information, document or communication, identify the specific grounds on which your objection is based, and identify the information objected to by furnishing its date, participants (e.g., names of speakers, authors, addresses) and a general description of the nature, rather than the substance, of the purportedly privileged information. If the information objected to contains relevant non-objectionable matter, you should disclose it. 3. If you cannot furnish exact data, such as dates, periods or amounts, supply estimated data to the extent possible and indicate that the data is estimated. INTERROGATORY NO. 1: Identify each instance in which you contend Jones “promised Plaintiff that he would buy a home and transfer ownership to her,” as alleged in your Petition, including the dates on which such promises were made, the manner in which Jones allegedly made such promises (e.g., by email, oral communications, etc.) and any witnesses to such communications. ANSWER: INTERROGATORY NO. 2: If you contend you were employed by Jones, state the factual basis for your contention. INTERROGATORY NO. 3: Identify all documents supporting your contention that Jones “authorized for the necessary real estate transactions to be initiated that would result in a purchase transaction and an immediate transfer of ownership,” as alleged in your Petition. INTERROGATORY NO. 4: Identify all copies of the “written agreement [Jones promised to execute] at closing, giving [you] full title and interest to the home,” as alleged in your Petition. 4 INTERROGATORY NO. 5: Identify all “necessary documents” Jones promised to sign “to give Plaintiff full and complete ownership of the home,” including any such documents in your possession, custody, and control, whether you contend such documents were drafted, and the approximate date(s) on which you reviewed any such documents. INTERROGATORY NO. 6: Identify each manner in which you contend you “detrimentally relied upon [Defendant Jones’s] misrepresentation,” as alleged in your Petition, including but not limited to any costs or expenses incurred based on such alleged misrepresentations. INTERROGATORY NO. 7: If you are seeking an award of any sum of money, whether by damages or otherwise, state the full amount of money you seek and describe the manner in which the amount was calculated. Your description should include each element or damage or component of recovery that you seek, the amount sought for each element or component, the manner in which each element or component was determined, and should identify the source of each number used in the calculation. INTERROGATORY NO. 8: Identify each act committed by Jones in furtherance of the “conspiracy” alleged in your Petition. INTERROGATORY NO. 9: Identify the goal or objective of the conspiracy alleged in your Petition. INTERROGATORY NO. 10: Describe Plaintiff’s efforts and her methodology used to identify and locate any electronic documents in her possession, custody, or control, including but not limited to emails stored in her mommiesawitch@yahoo.com email account and text messages, responsive to Defendant’s Requests for Production. 5 INTERROGATORY NO. 11: Identify all search terms used by Plaintiff in identifying and locating documents maintained in any of her personal email accounts, including the mommiesawitch@yahoo.com account, and responsive to Defendant’s Requests for Production. INTERROGATORY NO. 12: Identify the last date on which Plaintiff deleted any emails, text messages, or other electronically stored data in her possession, custody, or control, including but not limited to emails stored in her mommiesawitch@yahoo.com email account, and describe in detail steps taken by Plaintiff to ensure documents, data, and information responsive to Defendant’s Requests for Production were not deleted or lost during this process. INTERROGATORY NO. 13: Identify the email accounts you have had and/or currently have, whether created by you or for your use, since November 13, 2012. Your answer should include the full email address, the date the account was established, and an indication as to whether you have sent and/or received any emails from such account(s) related to your employment with Defendants or your claims against Defendants in this lawsuit. End of Interrogatories 1. Unless otherwise noted, the relevant time period of these requests is from the commencement of your employment with Defendant to the present, and your Responses shall include all documents that relate or refer to this period even though prepared before or subsequent to this period. 2. If you later discover additional responsive documents, you are obligated to supplement your responses under the Texas Rules of Civil Procedure. 1. W-2 forms or 1099 forms that you have filed or received from January 1, 2010 to the present. 6 2. Resumes that you have prepared since January 1, 2010 to the present. 3. Your personal diaries, journals, calendars, and/or notes created by you on or after November 13, 2012, that discuss or reference the facts underlying any of your claims in this lawsuit. This request is not seeking any documents protected from discovery by the attorney-client privilege. 4. Maps, charts, tables, diagrams, and chronologies created by you on or after November 13, 2012, that reference the facts underlying any of your claims in this lawsuit. This request is not seeking any documents protected from discovery by the attorney-client privilege. 5. Videotapes, audiotapes, and photographs relating to your allegations against Defendants or the facts underlying any of your claims in this lawsuit. This Request includes all duplicate copies you have in your possession, including any copies of audio recordings. 6. Written, audiotaped, or videotaped statements that you have taken from any person whom you believe may have knowledge of facts relevant to the claims in your lawsuit. 7. Written, audiotaped, or videotaped statements in which you allegedly complain of unlawful discrimination and/or retaliation during your employment with Defendant. 8. Correspondence, including but not limited to emails, between you and Defendant Jones regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. 9. Correspondence, including but not limited to emails, between you and Defendant Donbavand regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. 10. Correspondence, including but not limited to emails, between you and any employee or agent of Defendant FMP regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. 11. Correspondence, including but not limited to emails, between you and any employee or agent of Defendant All Jones regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. 12. Correspondence, including but not limited to emails, between you and any individual identified in your Responses to Defendants’ Requests for Disclosure regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. 13. Statements, documents, videotapes, and audiotapes you submitted to the EEOC, Department of Labor, or the TWC-Civil Rights Division regarding any of the facts underlying your claims in this lawsuit. 7 14. Statements, documents, videotapes, and audiotapes you received from EEOC, Department of Labor, or the TWC-Civil Rights Division regarding any of the facts underlying your claims in this lawsuit. 15. Rebuttal and impeachment evidence you intend on introducing at trial that is not otherwise responsive to Defendant’s Requests for Production or Interrogatories propounded on you. 16. Documents submitted by you in conjunction with any bankruptcy petition filed by you since January 1, 2010. 17. Documents taken, received, kept, or generated by a health care provider relating to any emotional distress or mental anguish you claim as damages in this lawsuit. 18. Medical records supporting your claim that you suffered mental anguish as a result of Defendants’ conduct and/or omissions as alleged in this lawsuit. 19. If you are seeking attorney’s fees, the contract(s) for legal services between you and your counsel in this case. 20. If you are seeking attorney’s fees, documents, including but not limited to “time sheets,” bills, invoices, and/or receipts, that support your claim for reasonable attorney’s fees, costs, and expenses in this case. 21. Privilege log of all documents withheld from production due to a claim of privilege. 22. Documents relied upon by a consulting expert whose opinion(s) and/or work product have been reviewed by or relied upon by a testifying expert. 23. Statements, reports, memoranda, notes, documents, and/or other written instruments and/or tape recordings sent to or received from any current or former employee of Defendant relating to your claims in this lawsuit. 24. Any documents identified in or relied upon in your Responses to Defendant’s Requests for Disclosures. 25. Any documents relied upon or referenced in responding to Defendant’s Interrogatories. 26. Documents created by you that record, summarize, document or reference conversations or communications between you and any current or former employee of Defendants about your claims in this lawsuit. This Request does not seek documents created by you in order to seek legal advice or documents created at the behest of your attorney. 27. Correspondence, notes, memoranda, reports, documents, or other written or recorded material taken or received from Defendants by Plaintiff, including but not limited to, policies, procedure manuals, reports, performance reviews, counselings, and/or memoranda. 8 28. Documents discussing or referencing your work performance while employed with Defendant from November 13, 2012 to the present. 29. Evaluations, reprimands, or other documents discussing your performance or employment status with Defendants since November 13, 2012. 30. Documents received from employers to whom you have inquired about employment at any time from January 1, 2014 to the present. 31. Documents received from employers that have made you an offer of employment at any time from January 1, 2014 to the present. 32. Documents, including but not limited to written applications for employment, submitted to potential employer(s) at any time from January 1, 2014 to the present. 33. Documents you intend to offer as an exhibit during any proceeding, deposition, hearing, or trial of this lawsuit. 34. Emails you sent to or received from any current or former employee of Defendant that discuss or evidence your claims in this lawsuit. 35. Documents that support your claim for back pay as alleged in your Petition. 36. Documents that support your claim for front pay as alleged in your Petition. 37. Documents that support your claim for “non-economic” damages, as alleged in your Petition. 38. Documents revealing your gross and net income, including benefits, since January 1, 2010 to the present. 39. Documents supporting your contention that “Defendant Jones promised Plaintiff that he would buy a home and transfer ownership to” her, as alleged in your Petition. 40. Documents supporting your contention that “Defendant Jones intended to hide his gift from the other Defendants named in this lawsuit,” as alleged in your Petition. 41. Documents supporting your contention that Defendant Jones “authorized for [sic] the necessary real estate transactions to be initiated that would result in a purchase transaction and an immediate transfer of ownership,” as alleged in your Petition. 42. Documents evidencing any Defendant’s alleged intent to gift the property located at 8647 Timber Place, San Antonio, Texas 78250 to Plaintiff. 43. Documents that, if executed, would transfer ownership of the property located at 8647 Timber Place, San Antonio, Texas 78250 to Plaintiff. 9 44. Documents evidencing Plaintiff’s “moving expenses.” 45. Documents evidencing Plaintiff’s “expenses in making repairs to the residence to make it habitable.” 46. A copy of the “inspection report” identified in Paragraph 13 of your Petition. 47. A copy of the “one-month lease” identified in Paragraph 13 of your Petition. 48. Documents supporting your contention that “Plaintiff had clear title to her 2005 Mini Cooper,” as alleged in your Petition. 49. A copy of the “payment plan” identified in Paragraph 15 of your Petition. 50. Documents supporting your contention that “immediately before the firing, [you had] been given a raise in pay and additional duties,” as alleged in your Petition. 51. Documents supporting your contention that you were asked to “perform employment duties that were not in furtherance of the corporate business,” as alleged in your Petition. 52. Documents supporting your contention that “Donbavand … was aware of the employment violations …,” as alleged in your Petition. 53. Documents supporting your contention that Defendants have “circulat[ed] malicious rumors about the Plaintiff,” as alleged in your Petition. 54. The “written agreement” Defendant Jones allegedly promised to execute at closing, as alleged in Paragraph 22 of your Petition. 55. Any documents that existed at the time of closing and would “giv[e you] full title and interest to the home,” as alleged in your Petition. 56. Documents supporting your contention that Defendants made “a false representation or concealment of material facts concerning the real estate transaction,” as alleged in your Petition. 57. Documents supporting your contention that Defendants “made representation with knowledge, actual or constructive, of those facts,” as alleged in your Petition. 58. Documents supporting your contention that you “detrimentally relied upon the misrepresentation,” as alleged in your Petition. 59. Documents evidencing any costs or expenses incurred by you based upon your alleged detrimental reliance upon Defendants’ representations. 10 60. Documents, including but not limited to any invoices for work performed, evidencing “valuable improvements” you contend you have made to the property located at 8647 Timber Place, San Antonio, Texas 78250. 61. Documents, including but not limited to emails and correspondence, evidencing any instance in which Defendant Jones “made sexual advances toward Plaintiff,” as alleged in your Petition. 62. Documents, including but not limited to emails and correspondence, evidencing any instance in which you complained of Defendant Jones’s alleged “sexual advances.” 63. Documents, including but not limited to emails and correspondence, evidencing any instance in which you resisted Defendant Jones’s alleged “sexual advances.” 64. Documents supporting your contention that Defendant Jones “made it clear that continued employment as well as other job benefits were conditioned on her acceptance of the continued sexual demands of Defendant Jones,” as alleged in your Petition. 65. Documents evidencing any instance in which you “refused to further submit to Defendant Jones’s inappropriate requests,” as alleged in your Petition. 66. Documents evidencing any act committed by Donbavand in furtherance of the “conspiracy” alleged in your Petition. 67. Documents evidencing any act committed by Kemp in furtherance of the “conspiracy” alleged in your Petition. 68. Documents evidencing your “payment of consideration” for the property located at 8647 Timber Place, San Antonio, Texas 78250, as alleged in your Petition. 69. Documents evidencing “valuable improvements” you have made to the property located at 8647 Timber Place, San Antonio, Texas, as alleged in your Petition. 70. All emails sent to or from your mommiesawitch@yahoo.com email account from November 13, 2012 to present. 71. All emails sent to or from your mommiesawitch@yahoo.com email account from November 13, 2012 to present regarding your claims in this lawsuit. 72. All emails sent from your mommiesawitch@yahoo.com email account from November 13, 2012 to present to any person identified in your Responses to Defendants’ Requests for Disclosure. 73. All emails received at your mommiesawitch@yahoo.com email account from November 13, 2012 to present from any person identified in your Responses to Defendants’ Requests for Disclosure. 11 End of Requests for Production Christine E. Reinhard State Bar No. 24013389 Shannon B. Schmoyer State Bar No. 177802050 Justin Barbour State Bar No. 24055142 SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 PH: 210.447.8033 FX: 210.447.8036 creinhard@sr-llp.com sschmoyer@sr-llp.com jbarbour@sr-llp.com ATTORNEYS FOR DEFENDANT ALLEN J. JONES On March 2, 2015, a true and correct copy of the foregoing document was served via certified mail, return receipt requested on the following counsel of record in this matter: Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, Texas 78205 PH: 210.226.1550 FX: 210.226.1884 argyle2@sbcglobal.net Christine E. Reinhard 13 Appendix 36 CAUSE NO. 2014-CI-16674 CEARTH FAIRE, § IN THE DISTRICT COURT Plaintiff, § § v. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, LLC, § D/B/A FOOD MANAGEMENT § PARTNERS, LLC, ALL JONES, LLC, § ALLEN J. JONES, INDIVIDUALLY, AND § PETER DONBAVAND, INDIVIDUALLY, § BEXAR COUNTY, TEXAS Defendants. § § DEFENDANT FMP SA MANAGEMENT GROUP, LLC D/B/A FOOD MANAGEMENT PARTNERS’S FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION TO PLAINTIFF CEARTH FAIRE TO: PLAINTIFF, CEARTH FAIRE, by and through her attorneys of record, Olga Brown, of the Law Office of Olga Brown, 111 Soledad, Suite 1725, San Antonio, Texas 78205. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD MANAGEMENT PARTNERS propounds the following Interrogatories and Requests for Production of Documents on Plaintiff Cearth Faire (“Faire” or “Plaintiff”). Pursuant to Rules 193, 196, and 197 of the Texas Rules of Civil Procedure, you are advised that the Responses to these Interrogatories must be answered separately, in writing, and under oath, within thirty (30) days from the date of service hereof, and delivered to Christine E. Reinhard, Schmoyer Reinhard LLP, 17806 IH 10 West, Suite 400, San Antonio, Texas, 78257. You are also advised that all documents requested for production should be delivered to Christine E. Reinhard, Schmoyer Reinhard LLP, 17806 IH 10 West, Suite 400, San Antonio, Texas, 78257. You are further advised that these Interrogatories, together with your sworn Responses thereto, as well as documents produced, may be offered in evidence at the trial of the above action. Also, you are advised that these Interrogatories and Requests for 1 Production of Documents are continuing in nature, and must be supplemented upon receipt of additional or different information by you or your attorney. 1. Any reference to memoranda or other documentary material herein refers both to originals and copies of the memoranda or documents now in the possession, custody or control of the Plaintiffs and/or such memoranda or documents which the Plaintiffs may have given to a third party. 2. “Person” means the plural as well as the singular and includes any natural person and any firm, corporation, association, partnership, or other form of legal entity, unless the contents of the interrogatory indicate otherwise. 3. “Individual” means the plural as well as the singular and refers only to natural persons. 4. “Perjury” is the willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his or her evidence, either upon oath or in any form allowed by law to be substituted for an oath, where such evidence is given in open court, or in an affidavit, or otherwise, such assertion being material to the issue or a point of inquiry and known to such witness to be false. 5. “Identify” with respect to persons means to give, to the extent known, the person’s full name, present or last known address and telephone number and, when referring to a natural person, additionally the present or last known place of employment. 6. “Identify” with respect to documents means to give, to the extent known, the type of document, the general subject-matter, the date of the document, the author(s), addressee(s), and recipient(s). 7. “Document” means any printed, typewritten, handwritten, mechanically or otherwise recorded matter of whatever character, including, but not limited to, letters, purchase orders, memoranda, telegrams, notes, catalogues, brochures, diaries, reports, calendars, inter- or intra-office communications, statements, investigative reports, announcements, depositions, answers to interrogatories, pleadings, judgments, newspaper articles, drawings, graphs, charts, photographs, records, tape recordings (including audio, video, or digital), motion pictures, computer information, and other data compilations from which information can be obtained, INCLUDING ANY ELECTRONIC STORED INFORMATION, and including any draft versions of any of the foregoing, and any carbon or photographic copies of any such material if you do not have custody or control of the original. If any document requested to be identified or produced was but is no longer in your possession or control or is no longer in existence, state whether it is: 2 c. Transferred voluntarily or involuntarily to others and, if so, to whom; and in each instance explain the circumstances surrounding the document passing from your possession or control or the document no longer being in existence, including relevant dates, and describe the contents of each such document. 8. Responsive documents in the form of Electronically Stored Information must be produced in “native file” state, i.e., as the document is stored and including complete and unaltered embedded data and/or metadata. 9. “Plaintiff,” “Faire,” “you,” or “your” means Plaintiff Cearth Faire, as well as all agents, employees, attorneys, investigators, and other persons acting for or on behalf of Cearth Faire. 10. “FMP” means Defendant FMP SA Management Group d/b/a Food Management Partners, as well as all agents, employees, attorneys, investigators and other persons acting for FMP SA Management Group d/b/a Food Management Partners. 11. “All Jones” means Defendant All Jones, LLC, as well as all agents, employees, attorneys, investigators and other persons acting for All Jones, LLC. 12. “Donbavand” means Defendant Peter Donbavand, as well as all agents, employees, attorneys, investigators and other persons acting for Peter Donbavand. 13. “Jones” means Defendant Allen Jones, as well as all agents, employees, attorneys, investigators and other persons acting for Allen Jones. 14. “Petition” means your Third Amended Petition and any amendments or supplements thereto. 16. The word “and” as well as “or” shall be construed disjunctively or conjunctively as necessary to bring within the scope of these requests and interrogatories, all facts, documents, things or communications that might otherwise be construed as outside the scope of these requests and interrogatories. 17. “Relating to,” “relates to,” and “regarding” mean, without limitation, relating to, constituting, concerning, mentioning, referring to, describing, summarizing, evidencing, listing, relevant to, demonstrating, or tending to prove, disprove, or explain. 18. “Health care provider” means any hospital, clinic, physician, nurse, chiropractor, social worker, psychologist, therapist, or counselor. 3 II. Instructions for Interrogatories 1. If you discover new information, you are obligated to supplement your responses to these interrogatories under the Texas Rules of Civil Procedure. 2. If you object to furnishing any information requested by these interrogatories on the grounds of privilege, work product or otherwise, your response should state the existence of the information, document or communication, identify the specific grounds on which your objection is based, and identify the information objected to by furnishing its date, participants (e.g., names of speakers, authors, addresses) and a general description of the nature, rather than the substance, of the purportedly privileged information. If the information objected to contains relevant non-objectionable matter, you should disclose it. 3. If you cannot furnish exact data, such as dates, periods or amounts, supply estimated data to the extent possible and indicate that the data is estimated. INTERROGATORY NO. 1: Identify your current home address and who resides with you at this address. INTERROGATORY NO. 2: Identify all names or aliases you are using today or have used in the past. INTERROGATORY NO. 3: Identify each and every lawsuit, arbitration, bankruptcy, administrative complaint, administrative charge (including, but not limited to, charges of discrimination filed with the Texas Workforce Commission and/or the Equal Employment Opportunity Commission), appeal, judgment, and execution to which you have been a party in any capacity within the last five (5) years. Include in your answer the case style and/or governmental identification number and the name and location of the applicable court or agency. INTERROGATORY NO. 4: Identify, by date and nature of offense, each and every criminal conviction, arrest, prosecution, charge, indictment, information and/or investigation (not including minor traffic violations) directed toward you in the last ten (10) years, including the location of the alleged offense and the 4 governmental authority seeking or making the conviction, arrest, prosecution, charge, indictment, information, and/or investigation. INTERROGATORY NO. 5: Identify all employers for whom you have worked since January 1, 2014 to the present, and state the dates of such employment (start and end), the position(s) held with each employer, your rate of pay, the benefits for each such position(s), and the total amount of compensation before deductions earned through each such employer. INTERROGATORY NO. 6: Identify all employers with whom you have applied for employment since January 1, 2014 to the present, and state the dates of such applications, the position(s) applied for, and the ultimate disposition of each such application. INTERROGATORY NO. 7: Identify each individual whom you contend harassed or discriminated against you on the basis of your sex as alleged in your Petition, including the approximate date(s) on which each such harassment or discrimination occurred, the nature of such harassment or discrimination, and any witnesses to such incidents. INTERROGATORY NO. 8: Identify each individual whom you contend retaliated against you in violation of the Texas Labor Code as alleged in your Petition, including the date(s) on which each such allegedly retaliatory act occurred and the nature of such allegedly retaliatory acts. INTERROGATORY NO. 9: Identify each employee or agent of Defendant FMP to whom you complained of the alleged discrimination and harassment to which you contend you were subjected, including the dates on which such complaints were made, the manner in which such complaints were communicated to such agents, and any witnesses to such complaints. 5 INTERROGATORY NO. 10: Identify each employment duty “not in furtherance of the corporate business” which you contend you were asked to perform, as alleged in your Petition, including the dates on which such requests were allegedly made of you and the individuals making such requests. INTERROGATORY NO. 11: Identify all current or former employees, representatives, or agents of Defendant FMP whom you have contacted, or have been in contact with, regarding any matters relating to your Petition or to the subject matter of this lawsuit. For each communication, please include in your response the substance of each communications, the parties to the communication, the dates of such communications and contacts, and the nature (in person, by telephone, or through a third party) to the communication. INTERROGATORY NO. 12: Identify each individual from whom you have taken a written, audiotaped, or videotaped statement regarding any of the facts underlying your claims in this lawsuit. INTERROGATORY NO. 13: Identify each manner in which you contend “Kemp … acted with intent to assist Defendant Jones in his wrongful acts,” as alleged in your Petition. INTERROGATORY NO. 14: With respect to any expert used for consultation and not expected to be called as a witness at trial, state the name, address, and telephone number of the expert and the subject matter of the expert’s work. This Interrogatory applies only to those consulting experts whose opinions and/or work have been reviewed or relied upon by an expert who will testify at the trial of this case. 6 INTERROGATORY NO. 15: If you are seeking an award of any sum of money, whether by damages or otherwise, state the full amount of money you seek and describe the manner in which the amount was calculated. Your description should include each element or damage or component of recovery that you seek, the amount sought for each element or component, the manner in which each element or component was determined, and should identify the source of each number used in the calculation. INTERROGATORY NO. 16: Identify each health care provider from whom you have received treatment and/or a diagnosis relating to any mental anguish, emotional distress, or other mental health problem you contend was caused or exacerbated by Defendant FMP as alleged in your Petition. INTERROGATORY NO. 17: Identify each act committed by any employee or agent of FMP in furtherance of the “conspiracy” alleged in your Petition. INTERROGATORY NO. 18: Describe Plaintiff’s efforts and her methodology used to identify and locate any electronic documents in her possession, custody, or control, including but not limited to emails stored in her mommiesawitch@yahoo.com email account and text messages, responsive to Defendant’s Requests for Production. INTERROGATORY NO. 19: Identify all search terms used by Plaintiff in identifying and locating documents maintained in any of her personal email accounts, including the mommiesawitch@yahoo.com account, and responsive to Defendant’s Requests for Production. INTERROGATORY NO. 20: Identify the last date on which Plaintiff deleted any emails, text messages, or other electronically stored data in her possession, custody, or control, including but not limited to emails stored in her mommiesawitch@yahoo.com email account, and describe in detail steps taken by Plaintiff to 7 ensure documents, data, and information responsive to Defendant’s Requests for Production were not deleted or lost during this process. INTERROGATORY NO. 21: Identify the email accounts you have had and/or currently have, whether created by you or for your use, since November 13, 2012. Your answer should include the full email address, the date the account was established, and an indication as to whether you have sent and/or received any emails from such account(s) related to your employment with Defendants or your claims against Defendants in this lawsuit. 1. Unless otherwise noted, the relevant time period of these requests is from the commencement of your employment with Defendant to the present, and your Responses shall include all documents that relate or refer to this period even though prepared before or subsequent to this period. 2. If you later discover additional responsive documents, you are obligated to supplement your responses under the Texas Rules of Civil Procedure. 1. W-2 forms or 1099 forms that you have filed or received from January 1, 2010 to the present. 2. Resumes that you have prepared since January 1, 2010 to the present. 3. Your personal diaries, journals, calendars, and/or notes created by you on or after November 13, 2012, that discuss or reference the facts underlying any of your claims in this lawsuit. This request is not seeking any documents protected from discovery by the attorney-client privilege. 4. Maps, charts, tables, diagrams, and chronologies created by you on or after November 13, 2012, that reference the facts underlying any of your claims in this lawsuit. This request is not seeking any documents protected from discovery by the attorney-client privilege. 5. Videotapes, audiotapes, and photographs relating to your allegations against Defendants or the facts underlying any of your claims in this lawsuit. This Request includes all duplicate copies you have in your possession, including any copies of audio recordings. 8 6. Written, audiotaped, or videotaped statements that you have taken from any person whom you believe may have knowledge of facts relevant to the claims in your lawsuit. 7. Written, audiotaped, or videotaped statements in which you allegedly complain of unlawful discrimination and/or retaliation during your employment with Defendant. 8. Correspondence, including but not limited to emails, between you and Defendant Jones regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. 9. Correspondence, including but not limited to emails, between you and Defendant Donbavand regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. 10. Correspondence, including but not limited to emails, between you and any employee or agent of Defendant FMP regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. 11. Correspondence, including but not limited to emails, between you and any employee or agent of Defendant All Jones regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. 12. Correspondence, including but not limited to emails, between you and any individual identified in your Responses to Defendants’ Requests for Disclosure regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. 13. Statements, documents, videotapes, and audiotapes you submitted to the EEOC, Department of Labor, or the TWC-Civil Rights Division regarding any of the facts underlying your claims in this lawsuit. 14. Statements, documents, videotapes, and audiotapes you received from EEOC, Department of Labor, or the TWC-Civil Rights Division regarding any of the facts underlying your claims in this lawsuit. 15. Documents relating in any manner to any criminal records (including but not limited to police reports, arrest, and/or conviction records) identified in your response to Interrogatory No. 4. 16. Rebuttal and impeachment evidence you intend on introducing at trial that is not otherwise responsive to Defendant’s Requests for Production or Interrogatories propounded on you. 17. Petitions and complaints in lawsuits identified in response to Interrogatory No. 3. 18. Documents submitted by you in conjunction with any bankruptcy petition filed by you since January 1, 2010. 9 19. Documents taken, received, kept, or generated by a health care provider relating to any emotional distress or mental anguish you claim as damages in this lawsuit. 20. Medical records supporting your claim that you suffered mental anguish as a result of Defendants’ conduct and/or omissions as alleged in this lawsuit. 21. If you seek emotional distress, mental anguish, or other compensatory damages, a signed copy of the attached authorization for release of medical records. 22. If you have worked or applied for work with any other employer besides Defendant since January 1, 2014, a signed copy of the attached authorization for release of employment records. 23. If you are seeking attorney’s fees, the contract(s) for legal services between you and your counsel in this case. 24. If you are seeking attorney’s fees, documents, including but not limited to “time sheets,” bills, invoices, and/or receipts, that support your claim for reasonable attorney’s fees, costs, and expenses in this case. 25. Privilege log of all documents withheld from production due to a claim of privilege. 26. Documents relied upon by a consulting expert whose opinion(s) and/or work product have been reviewed by or relied upon by a testifying expert. 27. Statements, reports, memoranda, notes, documents, and/or other written instruments and/or tape recordings sent to or received from any current or former employee of Defendant relating to your claims in this lawsuit. 28. Any documents identified in or relied upon in your Responses to Defendant’s Requests for Disclosures. 29. Any documents relied upon or referenced in responding to Defendant’s Interrogatories. 30. Statements, reports, memoranda, notes, documents, and/or other written instruments and/or tape recordings you have received from the individuals identified in your responses to Interrogatory Nos. 7-9 and 12-13 above that relate to your claims in this lawsuit. 31. Statements, reports, memoranda, notes, documents, and/or other written instruments and/or tape recordings that relate to the employment practices identified in response to Interrogatory Nos. 7-8 above. 32. Documents created by you that record, summarize, document or reference conversations or communications between you and any current or former employee of Defendants 10 about your claims in this lawsuit. This Request does not seek documents created by you in order to seek legal advice or documents created at the behest of your attorney. 33. Correspondence, notes, memoranda, reports, documents, or other written or recorded material taken or received from Defendants by Plaintiff, including but not limited to, policies, procedure manuals, reports, performance reviews, counselings, and/or memoranda. 34. Documents discussing or referencing your work performance while employed with Defendant from November 13, 2012 to the present. 35. Evaluations, reprimands, or other documents discussing your performance or employment status with Defendants since November 13, 2012. 36. Documents received from employers to whom you have inquired about employment at any time from January 1, 2014 to the present. 37. Documents received from employers that have made you an offer of employment at any time from January 1, 2014 to the present. 38. Documents, including but not limited to written applications for employment, submitted to potential employer(s) at any time from January 1, 2014 to the present. 39. Documents you intend to offer as an exhibit during any proceeding, deposition, hearing, or trial of this lawsuit. 40. Emails you sent to or received from any current or former employee of Defendant that discuss or evidence your claims in this lawsuit. 41. Documents that support your claim for back pay as alleged in your Petition. 42. Documents that support your claim for front pay as alleged in your Petition. 43. Documents that support your claim for “non-economic” damages, as alleged in your Petition. 44. Documents revealing your gross and net income, including benefits, since January 1, 2010 to the present. 45. Documents supporting your contention that “Defendant Jones promised Plaintiff that he would buy a home and transfer ownership to” her, as alleged in your Petition. 46. Documents supporting your contention that “Defendant Jones intended to hide his gift from the other Defendants named in this lawsuit,” as alleged in your Petition. 11 47. Documents supporting your contention that Defendant Jones “authorized for [sic] the necessary real estate transactions to be initiated that would result in a purchase transaction and an immediate transfer of ownership,” as alleged in your Petition. 48. Documents evidencing any Defendant’s alleged intent to gift the property located at 8647 Timber Place, San Antonio, Texas 78250 to Plaintiff. 49. Documents that, if executed, would transfer ownership of the property located at 8647 Timber Place, San Antonio, Texas 78250 to Plaintiff. 51. Documents evidencing Plaintiff’s “expenses in making repairs to the residence to make it habitable.” 52. A copy of the “inspection report” identified in Paragraph 13 of your Petition. 53. A copy of the “one-month lease” identified in Paragraph 13 of your Petition. 54. Documents supporting your contention that “Plaintiff had clear title to her 2005 Mini Cooper,” as alleged in your Petition. 55. A copy of the “payment plan” identified in Paragraph 15 of your Petition. 56. Documents supporting your contention that “immediately before the firing, [you had] been given a raise in pay and additional duties,” as alleged in your Petition. 57. Documents supporting your contention that you were asked to “perform employment duties that were not in furtherance of the corporate business,” as alleged in your Petition. 58. Documents supporting your contention that “Donbavand … was aware of the employment violations …,” as alleged in your Petition. 59. Documents supporting your contention that Defendants have “circulat[ed] malicious rumors about the Plaintiff,” as alleged in your Petition. 60. The “written agreement” Defendant Jones allegedly promised to execute at closing, as alleged in Paragraph 22 of your Petition. 61. Any documents that existed at the time of closing and would “giv[e you] full title and interest to the home,” as alleged in your Petition. 62. Documents supporting your contention that Defendants made “a false representation or concealment of material facts concerning the real estate transaction,” as alleged in your Petition. 12 63. Documents supporting your contention that Defendants “made representation with knowledge, actual or constructive, of those facts,” as alleged in your Petition. 64. Documents supporting your contention that you “detrimentally relied upon the misrepresentation,” as alleged in your Petition. 65. Documents evidencing any costs or expenses incurred by you based upon your alleged detrimental reliance upon Defendants’ representations. 66. Documents, including but not limited to any invoices for work performed, evidencing “valuable improvements” you contend you have made to the property located at 8647 Timber Place, San Antonio, Texas 78250. 67. Documents, including but not limited to emails and correspondence, evidencing any instance in which Defendant Jones “made sexual advances toward Plaintiff,” as alleged in your Petition. 68. Documents, including but not limited to emails and correspondence, evidencing any instance in which you complained of Defendant Jones’s alleged “sexual advances.” 69. Documents, including but not limited to emails and correspondence, evidencing any instance in which you resisted Defendant Jones’s alleged “sexual advances.” 70. Documents supporting your contention that Defendant Jones “made it clear that continued employment as well as other job benefits were conditioned on her acceptance of the continued sexual demands of Defendant Jones,” as alleged in your Petition. 71. Documents evidencing any instance in which you “refused to further submit to Defendant Jones’s inappropriate requests,” as alleged in your Petition. 72. Documents evidencing any act committed by Donbavand in furtherance of the “conspiracy” alleged in your Petition. 73. Documents evidencing any act committed by Kemp in furtherance of the “conspiracy” alleged in your Petition. 74. Documents evidencing your “payment of consideration” for the property located at 8647 Timber Place, San Antonio, Texas 78250, as alleged in your Petition. 75. Documents evidencing “valuable improvements” you have made to the property located at 8647 Timber Place, San Antonio, Texas, as alleged in your Petition. 76. All emails sent to or from your mommiesawitch@yahoo.com email account from November 13, 2012 to present. 77. All emails sent to or from your mommiesawitch@yahoo.com email account from November 13, 2012 to present regarding your claims in this lawsuit. 13 78. All emails sent from your mommiesawitch@yahoo.com email account from November 13, 2012 to present to any person identified in your Responses to Defendants’ Requests for Disclosure. 79. All emails received at your mommiesawitch@yahoo.com email account from November 13, 2012 to present from any person identified in your Responses to Defendants’ Requests for Disclosure. End of Requests for Production Christine E. Reinhard State Bar No. 24013389 Shannon B. Schmoyer State Bar No. 177802050 Justin Barbour State Bar No. 24055142 SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 PH: 210.447.8033 FX: 210.447.8036 creinhard@sr-llp.com jbarbour@sr-llp.com ATTORNEYS FOR DEFENDANT FMP SA MANAGEMENT GROUP D/B/A FOOD MANAGEMENT PARTNERS On March 2, 2015, a true and correct copy of the foregoing document was served via certified mail, return receipt requested on the following counsel of record in this matter: Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, Texas 78205 PH: 210.226.1550 FX: 210.226.1884 argyle2@sbcglobal.net 15 AUTHORIZATION FOR THE USE AND DISCLOSURE OF PROTECTED HEALTH INFORMATION 1. I hereby authorize my Medical Providers to use and disclose protected health information from the record(s) of: Patient’s Name: Cearth Faire Birth Date: 1/20/1964 Social Security No.: 2. Copies of the following records shall be used and disclosed: X Complete Medical Records for the patient’s admission or treatment for November 13, 2013 to present. Complete Medical Records for ALL of the patient’s admissions. Other (Specifically Identify) 3. I understand that the records used and disclosed under this authorization form may include information relating to Human Immunodeficiency Virus (“HIV”) infection or Acquired Immunodeficiency Syndrome (“AIDS”); treatment for or history of drug or alcohol abuse; or mental or behavioral health or psychiatric care. 4. I request that copies of the records indicated above be sent to: Name of Recipient: SCHMOYER REINHARD LLP Address: 17806 IH 10 West, Suite 400 City: San Antonio State: Texas Zip Code: 78257 5. I understand that the information furnished by my Health Care Providers may no longer be protected by Federal and Texas privacy law once it is disclosed to the Recipient and, therefore, may be subject to re- disclosure by the Recipient. 6. This use and disclosure is at the request of the individual signing below. 7. I understand that I may revoke this authorization in writing at any time except to the extent that any of my Medical Providers have already relied on this authorization. I understand that I may revoke this authorization by sending or faxing a written notice to the Privacy Officer of the Medical Provider(s) stating my intent to revoke this authorization. 8. If not revoked, I understand that this authorization will expire 180 days from the date shown next to my signature unless I have indicated another date here: . 9. I understand that my Medical Providers may not condition my treatment based on my completion of this authorization form. 10. A copy of this Authorization will have the same effect as that of an original. Signature of Patient or Legal Representative Date Printed Name of Legal Representative (if any) Description of authority to act for the patient: AUTHORIZATION AND RELEASE FOR EMPLOYMENT RECORDS I hereby authorize any company, business, person, institution, firm or corporation, to release to Schmoyer Reinhard LLP, and any of its agents, any material or information pertaining to your employment of CEARTH FAIRE, including by way of example, but not limited to the following: Complete and/or updated personnel records, payroll records, human resources records, office notes, reports, correspondence and/or written documents pertaining to the employment of CEARTH FAIRE including but not limited to his applications for employment, contracts or agreements signed by all parties, documents reflecting dates of employment, resume provided, records of all positions held, job descriptions of positions held, attendance records, wage records, pay stubs, employee benefits records, workers’ compensation files, warning letters, performance evaluations, counseling documents, disciplinary documents, complimentary letters, complaint letters, medical records, training records and/or records contained in your files from other sources pertaining to CEARTH FAIRE’S employment. This Authorization also includes the authority to copy and inspect any and all such records. You are hereby released from any and all liability in connection with the disclosure of information, records, documents, writings and physical evidence to the firm specified above. This Authorization is continuing in nature and is to be given full force and effect to release any and all of the foregoing information learned or determined after the date hereof. A copy of this Authorization may be used in place of and with the same force and effect as the original. 1/20/1964 _____________________________________ Date of Birth Signature: CEARTH FAIRE Social Security Number STATE OF TEXAS § § COUNTY OF _________ § SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority on this _____ day of _______________________, 2014. ____________________________________ Notary Public in and for the State of Texas My Commission Expires:_______________ Appendix 37 CAUSE NO. 2014-CI-16674 CEARTH FAIRE § IN THE DISTRICT Plaintiff § § V. § § 150TH JUDICIAL DISTRICT FMP SA MANAGEMENT GROUP, § LLC, D/B/A FOOD MANAGEMENT § PARTNERS, LLC, § ALL JONES, LLC, ALLEN J JONES, § INDIVIDUALLY, AND § PETER DONBAVAND, § INDIVIDUALLY § § Defendants § BEXAR COUNTY, TEXAS PLAINTIFF’S OBJECTIONS AND RESPONSES TO DEFENDANT FMP’S FIRST SET OF INTERROGATORIES AND FIRST REQUEST FOR PRODUCTION TO: Fmp Sa Management Group, LLC, D/B/A Food Management Partners, LLC, All Jones, LLC, Allen J Jones, and Peter Donbavand, Defendants, by and through their attorney of record, Christine E Reinhard, 17806 IH 10 West, Suite 400, San Antonio, Texas 78257. Plaintiff, Cearth Faire, serves these objections and answers to Defendant FMP’s first set of interrogatories and first requests for production. LAW OFFICE OF OLGA BROWN 111 Soledad, Suite 1725 San Antonio, Texas 78205 210/226-1550 telephone 210/226-1884 facsimile Argyle2@sbcglobal.net By: /s/ Olga Brown_______ OLGA BROWN State Bar No. 03155500 Attorney for Plaintiff CERTIFICATE OF SERVICE I do hereby certify that on the 1st day of April 2015, in accordance with the TEXAS RULES OF CIVIL PROCEDURE, a true and correct copy of the above and foregoing Plaintiff’s Objections and Responses to Defendant FMP’s First Set of Interrogatories and First Request for Production to Plaintiff was furnished to: Christine E Reinhard SCHMOYER REINHARD LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 /s/ Olga Brown_______ OLGA BROWN 2 PLAINTIFF’S OBJECTIONS AND RESPONSES TO DEFENDANT FMP’S FIRST SET OF INTERROGATORIES INTERROGATORY NO. 1: Identify your current home address and who resides with you at this address. ANSWER: Objection, as Defendant has posed two questions. Subject to and without waiving the foregoing objection, 8647 Timber Pl, San Antonio, TX 78250, INTERROGATORY NO. 2: Identify all names or aliases you are using today or have used in the past. ANSWER: Plaintiff objects to the use of “aliases.” Subject to and without waiving the foregoing objection, Cearth Faire and Cearth Lowden. INTERROGATORY NO. 3: Identify each and every lawsuit, arbitration, bankruptcy, administrative complaint, administrative charge (including, but not limited to, charges of discrimination filed with the Texas Workforce Commission and/or the Equal Employment Opportunity Commission), appeal, judgment, and execution to which you have been a party in any capacity within the last five (5) years. Include in your answer the case style and/or governmental identification number and the name and location of the applicable court or agency. ANSWER: Plaintiff objects and declines to give a narrative answer to this Interrogatory, because the request asks for information that is available from Defendants’ business records, and said Defendants can obtain such information from their own intracorporate emails, and this was a routine matter of conducting business. Subject to and without waiving the foregoing objection, please refer to Defendants’ Bates DEF-CF000607-000617 INTERROGATORY NO. 4: Identify, by date and nature of offense, each and every criminal conviction, arrest, prosecution, charge, indictment, information and/or investigation (not including minor traffic violations) directed toward you in the last ten (10) years, including the location of the alleged offense and the governmental authority seeking or making the conviction, arrest, prosecution, charge, indictment, information, and/or investigation. ANSWER: Plaintiff objects to this interrogatory as worded, and as it implies she has had any such items listed. Plaintiff objects to the request as overly broad, and not designed to lead to discoverable and/or admissible evidence. Subject to and without waiving the foregoing objection, None. INTERROGATORY NO. 5: Identify all employers for whom you have worked since January 1, 2014 to the present, and state the dates of such employment (start and end), the position(s) held with each employer, your rate of pay, the benefits for each such position(s), and the total amount of compensation before deductions earned through each such employer. ANSWER: Objection, merely harassing and annoying, as Defendants FMP, ALL JONES, LLC and their subsidiaries, are fully aware, January 1, 2014, until they terminated my employment August 31, 2014, they were my only employers, and have all the information, and the best information requested in this interrogatory. Please refer to Defendants’ own payroll, benefit, expense and other documents, whether produced, withheld, redacted, or destroyed. INTERROGATORY NO. 6: Identify all employers with whom you have applied for employment since January 1, 2014 to the present, and state the dates of such applications, the position(s) applied for, and the ultimate disposition of each such application. ANSWER: Steel Point, Texas State Optical, and other “anonymous” employers via Indeed.com, beginning October 29, 2014, up through March 12, 2015. Positions applied for: Contract Administrative, Executive Assistant, Executive Administrative, Administrative Assistant, Executive/Personal Assistant, Administration Assistant, VMware Administrator, Executive Assistant, Human Resource Asst, Admin Support spec, VMware Administrator, Commercial and Plumbing admin, Professional Housing, “Entry Level Positions”, “Office and Accounting”, Director of Education, Modeling & Acting Instructor, Field Marketing/Sales, Office/Administrative, Receptionist/Administrative, Admin Asst, Operations Manager, JR Project, Fleet Manager/DOT Specialist, Executive Asst, Quality Assurance analyst, Legal Asst, Secretary/Office Mgr, Exec Asst, Medical Receptionist, Admin Asst, Admissions Coordinators, Export/Shipping Coordinator, Exec Asst, Development Coord, Exec Asst, Medical Territory Sales, Optometry Practice Administrator, Admin Asst, Exec Asst, Optometry Practice, Asst Property Manager, Resident Asst, Business Office Mgr, Business Office Mgr, Property Management, Executive Assistant, Special Events coordinator II, Executive assistant, Administrative Assistant, Equine Veterinary, Legal Secretary/Paralegal, marketing, Administrative Assistant, Executive Admin Assistant, Assistant Property Manager, Business Office Manager, Dental Administrative, Administrative Assistant, Office Manager/Administrative, Executive Administrative, Legal Secretary, Executive Assistant/Personal, Assistant Manager, Hospice Director of Clinical, Executive Assistant Needed, Client Services, Executive Business Assistant, Receptionist/Customer, Assistant Business Office, Retail Admin Assistant, Administrative, Administrative Assistant, Project Administrator, Administration, $75- 100k Executive personal Assistant, Assistant Brand Ambassador, Executive Assistant, Temporary Irrigation, Secretary/Customer Service, Executive Assistant, Executive Assistant, Executive Assistant, Senior Executive Assistant. Ultimate disposition: not 4 hired. Plaintiff will supplement. INTERROGATORY NO. 7: Identify each individual whom you contend harassed or discriminated against you on the basis of your sex as alleged in your Petition, including the approximate date(s) on which each such harassment or discrimination occurred, the nature of such harassment or discrimination, and any witnesses to such incidents. ANSWER: Plaintiff objects to this request because it requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, Allen J Jones, beginning on or about January 22, 2013, and continuing through my termination on or about August 30, 2014. Please refer to the pleadings and Defendants’ Bates DEF-CF000607-000617, and witnesses have been listed in Plaintiff’s Amended Responses to Defendants’ Request for Disclosures. Plaintiff will supplement. INTERROGATORY NO. 8: Identify each individual whom you contend retaliated against you in violation of the Texas Labor Code as alleged in your Petition, including the date(s) on which each such allegedly retaliatory act occurred and the nature of such allegedly retaliatory acts. ANSWER: Plaintiff objects to this request because it is overly broad, and further object to this request because it requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, Allen J Jones, Peter Donbavand, Jason Kemp, Tracy Amass. The first retaliatory act was my termination on August 30, 2014. Subsequent retaliatory acts include but are not limited to: multiple attempts to deprive me of my home, repossession of my car, false police reports filed, falsification of employment records, and libel and slander, together hindering my reemployment efforts. Plaintiff will supplement. INTERROGATORY NO. 9: Identify each employee or agent of Defendant FMP to whom you complained of the alleged discrimination and harassment to which you contend you were subjected, including the dates on which such complaints were made, the manner in which such complaints were communicated to such agents, and any witnesses to such complaints. ANSWER: See Defendants DEF-CJ-00054/55, complaint policy, which required me to report to my supervisor, (Allen J Jones), and elevate through the chain up to and including the President/CEO, (Allen J Jones), which I did, repeatedly. See the result in Defendants DEF-CJ-00111/12. INTERROGATORY NO. 10: Identify each employment duty “not in furtherance of the corporate business” which you contend you were asked to perform, as alleged in your Petition, including the dates on which such requests were allegedly made of you and the individuals making such requests. ANSWER: Plaintiff objects and declines to give a narrative answer to this Interrogatory, because the request asks for information that is available from Defendants’ business records, and said Defendants can obtain such information from their own intracorporate emails, and this was a routine matter of conducting business. Plaintiff further objects to this request because it is overly broad, and further object to this request because it requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection: Perform sexual acts for, on, and with the President/CEO and others at his direction, transport his illegal substances during air travel, for and at the direction of the President/CEO, aid the President/CEO, and Peter Donbavand, in keeping Mr. Jones’ infant child out of the United States, in the Dominican Republic, and out of reach of his mother (See DEF-CF-490). Transport/travel with same infant child to return child to his mother in the United States, from the Dominican Republic Plaintiff will supplement. INTERROGATORY NO. 11: Identify all current or former employees, representatives, or agents of Defendant FMP whom you have contacted, or have been in contact with, regarding any matters relating to your Petition or to the subject matter of this lawsuit. For each communication, please include in your response the substance of each communications, the parties to the communication, the dates of such communications and contacts, and the nature (in person, by telephone, or through a third party) to the communication. ANSWER: Plaintiff objects to this request because it is overly broad, premature, not limited in time or scope, and further objects to this request because it requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper Plaintiff objects as this request is better addressed at deposition, and Plaintiff objects, as all such communications are in the custody and control of Defendants. Subject to and without waiving the foregoing objection, Plaintiff will supplement. INTERROGATORY NO. 12: Identify each individual from whom you have taken a written, audiotaped, or videotaped statement regarding any of the facts underlying your claims in this lawsuit. ANSWER: Plaintiff objects to this request because it is overly broad, premature, not limited in time or scope, and further objects to this request because it requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper Subject to and without waiving the foregoing objection, none at this time. Plaintiff will supplement as required by the rules. 6 INTERROGATORY NO. 13: Identify each manner in which you contend “Kemp … acted with intent to assist Defendant Jones in his wrongful acts,” as alleged in your Petition. ANSWER: Plaintiff objects to this request because it is overly broad, premature, not limited in time or scope, and further objects to this request because it requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper Subject to and without waiving the foregoing objection, none at this time. Plaintiff will supplement as required by the rules INTERROGATORY NO. 14: With respect to any expert used for consultation and not expected to be called as a witness at trial, state the name, address, and telephone number of the expert and the subject matter of the expert’s work. This Interrogatory applies only to those consulting experts whose opinions and/or work have been reviewed or relied upon by an expert who will testify at the trial of this case. ANSWER: None at this time. Plaintiff will supplement as required by the rules. INTERROGATORY NO. 15: If you are seeking an award of any sum of money, whether by damages or otherwise, state the full amount of money you seek and describe the manner in which the amount was calculated. Your description should include each element or damage or component of recovery that you seek, the amount sought for each element or component, the manner in which each element or component was determined, and should identify the source of each number used in the calculation. ANSWER: Objection, premature, and Plaintiff is not required to marshal all her evidence. Plaintiff will supplement when request is more specific. INTERROGATORY NO. 16: Identify each health care provider from whom you have received treatment and/or a diagnosis relating to any mental anguish, emotional distress, or other mental health problem you contend was caused or exacerbated by Defendant FMP as alleged in your Petition. ANSWER: Plaintiff objects and declines to give a narrative answer to this Interrogatory, because it is overly broad, premature, not limited in time or scope, and further objects to this request because it requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper Plaintiff further objects as this request calls for a medical diagnosis. Subject to and without waiving the foregoing objection, none at this time. Vine Wellness Group. Plaintiff will supplement as required by the rules. INTERROGATORY NO. 17: Identify each act committed by any employee or agent of FMP in furtherance of the “conspiracy” alleged in your Petition. ANSWER: Plaintiff objects and declines to give a narrative answer to this Interrogatory, because the request asks for information that is available from Defendants’ business records and said Defendants can obtain such information from their own intracorporate emails and this was a routine matter of conducting business. Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper . Subject to and without waiving the foregoing objection, Plaintiff will supplement as required by the rules. INTERROGATORY NO. 18: Describe Plaintiff’s efforts and her methodology used to identify and locate any electronic documents in her possession, custody, or control, including but not limited to emails stored in her mommiesawitch@yahoo.com email account and text messages, responsive to Defendant’s Requests for Production. ANSWER: Plaintiff objects and declines to give a narrative answer to this Interrogatory. Subject to and without waiving the foregoing objection, Plaintiff searched for pdonbavand@foodmps.com”, “allenjones@foodmps.com”,ajones@foodmps.com “allen jones” then printed same. Text messages are in the possession of Defendants. INTERROGATORY NO. 19: Identify all search terms used by Plaintiff in identifying and locating documents maintained in any of her personal email accounts, including the mommiesawitch@yahoo.com account, and responsive to Defendant’s Requests for Production. ANSWER: Plaintiff objects and declines to give a narrative answer to this Interrogatory, because the request asks for information that is available from Defendants’ business records and said Defendants can obtain such information from their own intracorporate emails and this was a routine matter of conducting business. Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper . Subject to and without waiving the foregoing objection, see Answer to No. 18 above. INTERROGATORY NO. 20: Identify the last date on which Plaintiff deleted any emails, text messages, or other electronically stored data in her possession, custody, or control, including but not limited to emails stored in her mommiesawitch@yahoo.com email account, and describe in detail steps taken by Plaintiff to ensure documents, data, and information responsive to Defendant’s Requests for Production were not deleted or lost during this process. 8 ANSWER: Objection as this request calls for answer that is not in evidence. Subject to and without waiving the foregoing objection, Text messages relevant to this suit are in the possession of Defendants. Plaintiff has not deleted emails or other electronically stored data in her possession, custody, or control, and relevant to this suit. INTERROGATORY NO. 21: Identify the email accounts you have had and/or currently have, whether created by you or for your use, since November 13, 2012. Your answer should include the full email address, the date the account was established, and an indication as to whether you have sent and/or received any emails from such account(s) related to your employment with Defendants or your claims against Defendants in this lawsuit. ANSWER: Objection as this request is overly broad, this request is two questions, which calls for two answer. Subject to and without waiving the foregoing objections, any information responsive to these interrogatories is in the possession, custody and control of Defendants, who have refused Plaintiff access to the information responsive to this request. PLAINTIFF’S OBJECTIONS AND RESPONSES TO DEFENDANT FMP’S FIRST REQUEST FOR PRODUCTION GENERAL OBJECTIONS PLAINTIFF OBJECTS BASED ON TRCP 193.1, PLAINTIFF IS NOT REQUIRED TO PRODUCE DOCUMENTS EXCLUSIVELY IN THE CONTROL AND POSSESSION OF DEFENDANTS. 1. W-2 forms or 1099 forms that you have filed or received from January 1, 2010 to the present. RESPONSE: Plaintiff objects to the request for documents unrelated to her employment with Defendants and the subject matter of this suit. Plaintiff further objects, as the best documents are in the possession, custody and control of Defendants. Defendants have withheld such documents from Plaintiff. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. 2. Resumes that you have prepared since January 1, 2010 to the present. RESPONSE: Plaintiff objects to the request for documents unrelated to her employment with Defendants and the subject matter of this suit. Subject to and without waiving the foregoing objection, please see Defendants’ Bates DEF-CJ- 00076/78 and Faire0001-02. 3. Your personal diaries, journals, calendars, and/or notes created by you on or after November 13, 2012, that discuss or reference the facts underlying any of your claims in this lawsuit. This request is not seeking any documents protected from discovery by the attorney-client privilege. RESPONSE: Objection, Plaintiff cannot properly respond, as the requested items were last in the possession of Defendant Allen Jones, in his personal safe, and further, have been withheld from Plaintiff by Defendants. See TRCP 193.1. Further, Defendants have withheld such documents from Plaintiff. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to forensic examination of equipment and devices of Defendants. 4. Maps, charts, tables, diagrams, and chronologies created by you on or after November 13, 2012, that reference the facts underlying any of your claims in this lawsuit. This request is not seeking any documents protected from discovery by the attorney-client privilege. 10 RESPONSE: Objection, Plaintiff cannot properly respond, as the requested items were last in the possession of Defendant Allen Jones, in his personal safe, and further, have been withheld from Plaintiff by Defendants. See TRCP 193.1. Further, Defendants have withheld such documents from Plaintiff. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to forensic examination of equipment and devices of Defendants. 5. Videotapes, audiotapes, and photographs relating to your allegations against Defendants or the facts underlying any of your claims in this lawsuit. This Request includes all duplicate copies you have in your possession, including any copies of audio recordings. RESPONSE: Objection as the requested items were last in the possession of Defendants, and only limited “responsive” documents were “recovered” by Defendants in response to my proper discovery requests. Plaintiff objects to this request in that it assumes such documents are in possession of Plaintiff. Such documents are in possession o Defendants or other third parties. All other “responsive” documents are in the possession, custody and control of Defendants, and have been withheld from Plaintiff by Defendants. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to forensic examination of equipment and devices of Defendants. 6. Written, audiotaped, or videotaped statements that you have taken from any person whom you believe may have knowledge of facts relevant to the claims in your lawsuit. RESPONSE: None at this time. Plaintiff will supplement as required by the rules. 7. Written, audiotaped, or videotaped statements in which you allegedly complain of unlawful discrimination and/or retaliation during your employment with Defendant. RESPONSE: Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, please refer to Defendants’ Bates DEF-CF000607-000617. Plaintiff will supplement as required by the rules. 8. Correspondence, including but not limited to emails, between you and Defendant Jones regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. RESPONSE: Objection, as Defendants Jones is in possession and control of such emails between him and Plaintiff, and furthers have withheld same from Plaintiff, or “redacted” same. See TRCP 193.1. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to forensic examination of equipment and devices of Defendants. Subject to and without waiving the foregoing objection, please see Faire003-131. 9. Correspondence, including but not limited to emails, between you and Defendant Donbavand regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. RESPONSE: Objection, as Defendants Jones and Donbavand are in possession and control of such emails between Donbavand and Plaintiff, and further Defendants withheld same from Plaintiff, or “redacted” same. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to forensic examination of equipment and devices of Defendants. Subject to and without waiving the foregoing objection, please see Faire0132-0256. 10. Correspondence, including but not limited to emails, between you and any employee or agent of Defendant FMP regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. RESPONSE: Objection, as Defendants Jones is in possession and control of such emails between him and Plaintiff, and furthers have withheld same from Plaintiff, or “redacted” same. See TRCP 193.1. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to forensic examination of equipment and devices of Defendants. Please also refer to Requests 8 and 9 above. 11. Correspondence, including but not limited to emails, between you and any employee or agent of Defendant All Jones regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. RESPONSE: Objection, as Defendant ALL JONES and co-defendants are in possession and control of such emails between any employee or agent of Defendants, and further, See TRCP 193.1. Further, Defendants have withheld same from Plaintiff, or “redacted” same to the degree the ”responsive” documents are virtually blank Defendants were sent a Retention Notice on 12 December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to forensic examination of equipment and devices of Defendants. Subject to and without waiving the foregoing objection, please see Requests 8-10 above. 12. Correspondence, including but not limited to emails, between you and any individual identified in your Responses to Defendants’ Requests for Disclosure regarding any of the facts underlying your claims in this lawsuit dated after November 13, 2012 to the present. RESPONSE: Objection, as Defendants are in possession and control of such emails between any employee or agent of Defendants, and further, Defendants have withheld same from Plaintiff, or “redacted” same to the degree the ”responsive” documents are virtually blank. . Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to forensic examination of equipment and devices of Defendants. Subject to and without waiving the foregoing objection, please see Requests 8-11 above. 13. Statements, documents, videotapes, and audiotapes you submitted to the EEOC, Department of Labor, or the TWC-Civil Rights Division regarding any of the facts underlying your claims in this lawsuit. RESPONSE: Please refer to Defendants’ Bates DEF-CF000607-000617 14. Statements, documents, videotapes, and audiotapes you received from EEOC, Department of Labor, or the TWC-Civil Rights Division regarding any of the facts underlying your claims in this lawsuit. RESPONSE: Please refer to Defendants’ Bates DEF-CF000607-000617 15. Documents relating in any manner to any criminal records (including but not limited to police reports, arrest, and/or conviction records) identified in your response to Interrogatory No. 4. RESPONSE: Plaintiff incorporates her objection to Interrogatory No. 4, objects as this request is solely for the purpose of harassment. Subject to and without waiving the foregoing objection, none. 16. Rebuttal and impeachment evidence you intend on introducing at trial that is not otherwise responsive to Defendant’s Requests for Production or Interrogatories propounded on you. RESPONSE: Plaintiff objects as this request is overly broad, and because this request requires Plaintiff to marshall her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, None at this time. However, discovery is in its early stages, ongoing, and Defendants’ have withheld and/or redacted “responsive” documents. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to forensic examination of equipment and devices of Defendants. Plaintiff will supplement once she is afforded access to properly requested responsive documents. 17. Petitions and complaints in lawsuits identified in response to Interrogatory No. 3. RESPONSE: None other than this suit, for which, Defendants’ are in possession of all such requested documents. Please see Requests 13 and 14 above 18. Documents submitted by you in conjunction with any bankruptcy petition filed by you since January 1, 2010. RESPONSE: Plaintiff objects, as this request is irrelevant, and will not lead to admissible evidence related to the subject matter of this suit. Subject to and without waiving the foregoing objection, none. 19. Documents taken, received, kept, or generated by a health care provider relating to any emotional distress or mental anguish you claim as damages in this lawsuit. RESPONSE: Plaintiff will supplement. 20. Medical records supporting your claim that you suffered mental anguish as a result of Defendants’ conduct and/or omissions as alleged in this lawsuit. RESPONSE: Plaintiff will supplement. 21. If you seek emotional distress, mental anguish, or other compensatory damages, a signed copy of the attached authorization for release of medical records. RESPONSE: Plaintiff objects as these are three separate questions. 22. If you have worked or applied for work with any other employer besides Defendant since January 1, 2014, a signed copy of the attached authorization for release of employment records. RESPONSE: Objection as this is two questions, calling for two answers, and as such is improper. 23. If you are seeking attorney’s fees, the contract(s) for legal services between you and your counsel in this case. RESPONSE: See Faire 0257-0260. 24. If you are seeking attorney’s fees, documents, including but not limited to “time sheets,” bills, invoices, and/or receipts, that support your claim for reasonable attorney’s fees, costs, and expenses in this case. RESPONSE: : See Faire 0261-0264. Plaintiff will supplement. 14 25. Privilege log of all documents withheld from production due to a claim of privilege. RESPONSE: None 26. Documents relied upon by a consulting expert whose opinion(s) and/or work product have been reviewed by or relied upon by a testifying expert. RESPONSE: None at this time. Plaintiff will supplement as required by the rules. 27. Statements, reports, memoranda, notes, documents, and/or other written instruments and/or tape recordings sent to or received from any current or former employee of Defendant relating to your claims in this lawsuit. RESPONSE: None at this time. However, discovery is in its early stages, ongoing, and Defendants’ have withheld and/or redacted “responsive” documents. Plaintiff will supplement once she is afforded access to properly requested responsive documents TRCP 193.1 28. Any documents identified in or relied upon in your Responses to Defendant’s Requests for Disclosures. RESPONSE: Objection as this request requires Plaintiff to marshall her evidence on this particular issue and such request is improper. 29. Any documents relied upon or referenced in responding to Defendant’s Interrogatories. RESPONSE: Objection as this request requires Plaintiff to marshall her evidence on this particular issue and such request is improper. 30. Statements, reports, memoranda, notes, documents, and/or other written instruments and/or tape recordings you have received from the individuals identified in your responses to Interrogatory Nos. 7-9 and 12-13 above that relate to your claims in this lawsuit. RESPONSE: None at this time. However, discovery is in its early stages, ongoing, and Defendants’ have withheld and/or redacted “responsive” documents. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to forensic examination of equipment and devices of Defendants. Subject to and without waiving the foregoing objection, Plaintiff will supplement once she is afforded access to properly requested responsive documents. TRCP 193.1 31. Statements, reports, memoranda, notes, documents, and/or other written instruments and/or tape recordings that relate to the employment practices identified in response to Interrogatory Nos. 7-8 above. RESPONSE: None at this time. However, discovery is in its early stages, ongoing, and Defendants’ have withheld and/or redacted “responsive” documents. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to examination of security tapes previously requested of Defendants, and forensic examination of equipment and devices of Defendants. Subject to and without waiving the foregoing objection, Plaintiff will supplement once she is afforded access to properly requested responsive documents. 32. Documents created by you that record, summarize, document or reference conversations or communications between you and any current or former employee of Defendants about your claims in this lawsuit. This Request does not seek documents created by you in order to seek legal advice or documents created at the behest of your attorney. RESPONSE: Objection as this request is non-sensical. Subject to and without waiving the foregoing objection, attorney-work product. 33. Correspondence, notes, memoranda, reports, documents, or other written or recorded material taken or received from Defendants by Plaintiff, including but not limited to, policies, procedure manuals, reports, performance reviews, counselings, and/or memoranda. RESPONSE: See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted, in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted 34. Documents discussing or referencing your work performance while employed with Defendant from November 13, 2012 to the present. RESPONSE: See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted 35. Evaluations, reprimands, or other documents discussing your performance or employment status with Defendants since November 13, 2012. RESPONSE: See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted 36. Documents received from employers to whom you have inquired about employment at any time from January 1, 2014 to the present. RESPONSE: None 16 37. Documents received from employers that have made you an offer of employment at any time from January 1, 2014 to the present. RESPONSE: None at this time. Plaintiff will supplement. 38. Documents, including but not limited to written applications for employment, submitted to potential employer(s) at any time from January 1, 2014 to the present. RESPONSE: None, as the mechanisms have been online. See response to Defendants’ Interrogatory No.6. 39. Documents you intend to offer as an exhibit during any proceeding, deposition, hearing, or trial of this lawsuit. RESPONSE: Objection, as this request is premature, and Plaintiff is not required to marshall all evidence at this time. Further, Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted. Discovery is ongoing, Plaintiff will supplement should Defendants’ ever produce responsive documents properly requested by Plaintiff. 40. Emails you sent to or received from any current or former employee of Defendant that discuss or evidence your claims in this lawsuit. RESPONSE: See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted. Plaintiff will supplement should Defendants’ ever produce responsive documents properly requested by Plaintiff. 41. Documents that support your claim for back pay as alleged in your Petition. RESPONSE: See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted. Plaintiff will supplement should Defendants’ ever produce responsive documents properly requested by Plaintiff. 42. Documents that support your claim for front pay as alleged in your Petition. RESPONSE: See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted. Plaintiff will supplement should Defendants’ ever produce responsive documents properly requested by Plaintiff. 43. Documents that support your claim for “non-economic” damages, as alleged in your Petition. RESPONSE: Plaintiff objects to this request because it requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Plaintiff will supplement pursuant to the rules. 44. Documents revealing your gross and net income, including benefits, since January 1, 2010 to the present. RESPONSE: Plaintiff objects to the request for documents unrelated to her employment with Defendants and the subject matter of this suit. Plaintiff further objects, as the best documents are in the possession, custody and control of Defendants. Defendants have withheld and/or redacted such documents from Plaintiff 45. Documents supporting your contention that “Defendant Jones promised Plaintiff that he would buy a home and transfer ownership to” her, as alleged in your Petition. RESPONSE: Plaintiff objects as documents responsive to this request are in the the possession, custody and control of Defendants, including email communication between Jones and other defendants Defendants have withheld such documents from Plaintiff. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to forensic examination of equipment and devices of Defendants. 46. Documents supporting your contention that “Defendant Jones intended to hide his gift from the other Defendants named in this lawsuit,” as alleged in your Petition. RESPONSE: Plaintiff objects as documents responsive to this request are in the the possession, custody and control of Defendants, including email communication between Jones and other defendants Defendants have withheld such documents from Plaintiff. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to forensic examination of equipment and devices of Defendants.. Please refer to Defendants’ BATES DEF-CF-00118, DEF-CF-000448, 00401 and other documents in the possession of Defendants. 47. Documents supporting your contention that Defendant Jones “authorized for [sic] the necessary real estate transactions to be initiated that would result in a purchase transaction and an immediate transfer of ownership,” as alleged in your Petition. RESPONSE: Plaintiff objects as documents responsive to this request are in the the possession, custody and control of Defendants, including email communication between Jones and other defendants Defendants have withheld such documents from Plaintiff. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court 18 intervention including, but not limited to forensic examination of equipment and devices of Defendants. Please refer to DEF_CF-00401-410 and DEF-CJ- 00085/86, DEF-CF-00118-00152 and other documents in the possession of Defendants. 48. Documents evidencing any Defendant’s alleged intent to gift the property located at 8647 Timber Place, San Antonio, Texas 78250 to Plaintiff. RESPONSE: Plaintiff objects as documents responsive to this request are in the the possession, custody and control of Defendants, including email communication between Jones and other defendants Defendants have withheld such documents from Plaintiff. Defendants were sent a Retention Notice on December 5, 2014. Defendants are in violation of said notices, and Defendants are guilty of spoliation of relevant documents. Plaintiff will seek appropriate court intervention including, but not limited to forensic examination of equipment and devices of Defendants. Please refer to DEF_CF-00401-410 and DEF-CJ- 00085/86, DEF- CJ-00085/86, DEF-CF-00118-00152 and other documents in the possession of Defendants. 49. Documents that, if executed, would transfer ownership of the property located at 8647 Timber Place, San Antonio, Texas 78250 to Plaintiff. RESPONSE: Please refer to the Pleadings and See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted. Plaintiff will supplement should Defendants’ ever produce responsive documents properly requested by Plaintiff. 50. Documents evidencing Plaintiff’s “moving expenses. RESPONSE: ”Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1. 51. Documents evidencing Plaintiff’s “expenses in making repairs to the residence to make it habitable. RESPONSE: ” Please see Faire0265-0272 and objections and responses to Request 8 and 9 above. 52. A copy of the “inspection report” identified in Paragraph 13 of your Petition. RESPONSE: See Defendants’ DEF-CF-00119-00144. 53. A copy of the “one-month lease” identified in Paragraph 13 of your Petition. RESPONSE: Please refer to BATES DEF-CJ-00085-00086. 54. Documents supporting your contention that “Plaintiff had clear title to her 2005 Mini Cooper,” as alleged in your Petition. RESPONSE: Please refer to the Pleadings and See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted. Plaintiff will supplement should Defendants’ produce responsive documents properly requested by Plaintiff. DEF-CF-00514 Please also see Faire0273-0279. 55. A copy of the “payment plan” identified in Paragraph 15 of your Petition. RESPONSE: Please refer to the Pleadings and See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted. Plaintiff will supplement should Defendants’ ever produce responsive documents properly requested by Plaintiff. 56. Documents supporting your contention that “immediately before the firing, [you had] been given a raise in pay and additional duties,” as alleged in your Petition. RESPONSE: See DEF-CJ-00065. 57. Documents supporting your contention that you were asked to “perform employment duties that were not in furtherance of the corporate business,” as alleged in your Petition. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, please refer to 2013-CI-04328 and 2013-CI-11046. 58. Documents supporting your contention that “Donbavand … was aware of the employment violations …,” as alleged in your Petition. RESPONSE: See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted. Plaintiff will supplement should Defendants’ produce responsive documents properly requested by Plaintiff TRCP 193.1. 59. Documents supporting your contention that Defendants have “circulat[ed] malicious rumors about the Plaintiff,” as alleged in your Petition. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection. See DEF-CJ-00064, DEF-CJ-000111-15, DEF-CF-00456, 20 00463 Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1. 60. The “written agreement” Defendant Jones allegedly promised to execute at closing, as alleged in Paragraph 22 of your Petition. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1. 61. Any documents that existed at the time of closing and would “giv[e you] full title and interest to the home,” as alleged in your Petition. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, Subject to and without waiving the foregoing objection, Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1. 62. Documents supporting your contention that Defendants made “a false representation or concealment of material facts concerning the real estate transaction,” as alleged in your Petition. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it seeks data or information that exists in electronic or magnetic form in the sole control of Defendants, further Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1. 63. Documents supporting your contention that Defendants “made representation with knowledge, actual or constructive, of those facts,” as alleged in your Petition. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it seeks data or information that exists in electronic or magnetic form in the sole control of Defendants, further Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1. 64. Documents supporting your contention that you “detrimentally relied upon the misrepresentation,” as alleged in your Petition. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it seeks data or information that exists in electronic or magnetic form in the sole control of Defendants, further Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1. 65. Documents evidencing any costs or expenses incurred by you based upon your alleged detrimental reliance upon Defendants’ representations. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it seeks data or information that exists in electronic or magnetic form in the sole control of Defendants, further Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, see Faire0265-0272. Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1. 66. Documents, including but not limited to any invoices for work performed, evidencing “valuable improvements” you contend you have made to the property located at 8647 Timber Place, San Antonio, Texas 78250. RESPONSE: DEF-CF-496/97 and see Request 65 above. 67. Documents, including but not limited to emails and correspondence, evidencing any instance in which Defendant Jones “made sexual advances toward Plaintiff,” as alleged in your Petition. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it seeks data or information that exists in electronic or magnetic form in the sole control of Defendants, further Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1. 68. Documents, including but not limited to emails and correspondence, evidencing any instance in which you complained of Defendant Jones’s alleged “sexual advances. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it seeks data or information that exists in electronic or magnetic form in the sole control of Defendants, further Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing 22 objection, Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1.” 69. Documents, including but not limited to emails and correspondence, evidencing any instance in which you resisted Defendant Jones’s alleged “sexual advances. RESPONSE: ” Plaintiff objects to this request because it is overly broad, and further object to this request because it seeks data or information that exists in electronic or magnetic form in the sole control of Defendants, further Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1. 70. Documents supporting your contention that Defendant Jones “made it clear that continued employment as well as other job benefits were conditioned on her acceptance of the continued sexual demands of Defendant Jones,” as alleged in your Petition. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it seeks data or information that exists in electronic or magnetic form in the sole control of Defendants, further Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1. 71. Documents evidencing any instance in which you “refused to further submit to Defendant Jones’s inappropriate requests,” as alleged in your Petition. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it seeks data or information that exists in electronic or magnetic form in the sole control of Defendants, further Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1. 72. Documents evidencing any act committed by Donbavand in furtherance of the “conspiracy” alleged in your Petition. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it seeks data or information that exists in electronic or magnetic form in the sole control of Defendants, further Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, see DEF-CF-00477,00478,00479, 00482/00483, 00486, 00492, 00496 Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1 73. Documents evidencing any act committed by Kemp in furtherance of the “conspiracy” alleged in your Petition. RESPONSE: Plaintiff objects to this request because it is duplicative, overly broad, and further object to this request because it seeks data or information that exists in electronic or magnetic form in the sole control of Defendants, further Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Plaintiff also objects and declines to give a narrative answer to this interrogatory because the request asks for information that is available from Defendants’ business records, and said Defendants can obtain such information from their own intracorporate emails, and this was a routine matter of conducting business. Subject to and without waiving the foregoing objection, see DEF-CF-00486, 00490, 00491, 00496, 00509,00510, 00511. Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1 74. Documents evidencing your “payment of consideration” for the property located at 8647 Timber Place, San Antonio, Texas 78250, as alleged in your Petition. RESPONSE: Plaintiff objects to this request because it is overly broad, and further object to this request because it seeks data or information that exists in electronic or magnetic form in the sole control of Defendants, further Plaintiff objects because this request requires Plaintiff to marshal all her evidence on this particular issue, and such request is improper. Subject to and without waiving the foregoing objection, Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1 75. Documents evidencing “valuable improvements” you have made to the property located at 8647 Timber Place, San Antonio, Texas, as alleged in your Petition. RESPONSE: Plaintiff will supplement when Defendants properly and completely respond to Plaintiff’s request for documents under the possession, custody and control of defendants. See TRCP 193.1 and Request 66 above. 76. All emails sent to or from your mommiesawitch@yahoo.com email account from November 13, 2012 to present. RESPONSE: Objection, as Defendants seek information protected by the attorney-client and work-product privilege in this request. Subject to an without waiving the foregoing objection, please see Plaintiff’s Objections and Responses to Interrogatory No. 18, 19 and 20, and Plaintiff’s Objections and Responses to Request for Production No. 9, 10, 11, 12 and 13. Further, See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has 24 requested all of the above from Defendants, and most has been withheld or redacted. Plaintiff will supplement should Defendants’ produce responsive documents properly requested by Plaintiff. TRCP 193.1 77. All emails sent to or from your mommiesawitch@yahoo.com email account from November 13, 2012 to present regarding your claims in this lawsuit. RESPONSE: Objection, as Defendants seek information protected by the attorney-client and work-product privilege in this request. Subject to an without waiving the foregoing objection, please see Plaintiff’s Objections and Responses to Interrogatory No. 18, 19 and 20, and Plaintiff’s Objections and Responses to Request for Production No. 9, 10, 11, 12 and 13. Further, See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted. Plaintiff will supplement should Defendants’ produce responsive documents properly requested by Plaintiff. 78. All emails sent from your mommiesawitch@yahoo.com email account from November 13, 2012 to present to any person identified in your Responses to Defendants’ Requests for Disclosure. RESPONSE: Objection, as Defendants seek information protected by the attorney-client and work-product privilege in this request. Subject to an without waiving the foregoing objection, please see Plaintiff’s Objections and Responses to Interrogatory No. 18, 19 and 20, and Plaintiff’s Objections and Responses to Request for Production No. 9, 10, 11, 12 and 13. Further, See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted. Plaintiff will supplement should Defendants’ produce responsive documents properly requested by Plaintiff. TRCP 193.1 79. All emails received at your mommiesawitch@yahoo.com email account from November 13, 2012 to present from any person identified in your Responses to Defendants’ Requests for Disclosure. RESPONSE: Objection, as Defendants seek information protected by the attorney-client and work-product privilege in this request. Subject to an without waiving the foregoing objection, please see Plaintiff’s Objections and Responses to Interrogatory No. 18, 19 and 20, and Plaintiff’s Objections and Responses to Request for Production No. 9, 10, 11, 12 and 13. Further, See Defendants’ Bates stamped documents produced and those withheld, as well as those redacted in response to Plaintiff’s discovery requests. Defendants are in possession, custody or control of the requested documents, if any. Plaintiff has requested all of the above from Defendants, and most has been withheld or redacted. Plaintiff will supplement should Defendants’ produce responsive documents properly requested by Plaintiff. TRCP193.1 26 Appendix 38 Appendix 39 Appendix 40 Appendix 41 Appendix 42 FILED 9/10/2015 2:25:30 PM Donna Kay McKinney Bexar County District Clerk Accepted By: Alex Lewicke CEARTH FAIRE, § IN THE DISTRICT COURT § Plaintiff, § § v. § § FMP SA MANAGEMENT GROUP, LLC § 150TH JUDICIAL DISTRICT d/b/a FOOD MANAGEMENT PARTNERS, § LLC, ALL JONES, LLC, ALLEN J. JONES § INDIVIDUALLY, PETER DONBAVAND, § INDIVIDUALLY, AND JASON KEMP, § INDIVIDUALLY § § Defendants. § BEXAR COUNTY, TEXAS ______________________________________________________________________________ FIRST AMENDED FIAT ON DEFENDANT ALLEN J. JONES’ MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL ______________________________________________________________________________ Defendant Allen J. Jones’ Motion to Disqualify Plaintiff’s Counsel is hereby set for Room 109 hearing at 9:00 a.m. on September 16, 2015 in the Presiding District Court, Bexar County Courthouse, San Antonio, Texas. 9/10/2015 Signed on this _________ day of September, 2015. 1 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served via electronic service and facsimile to: Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, Texas 78205 (210) 226-1884 (facsimile) argyle2@sbcglobal.net on this 10th day of September, 2015. 2 Appendix 43 Appendix 44 Appendix 45 Appendix No. Document Date Allegations Made Therein 1 Plaintiff’s Reply to Defendant’s Response to Second 10/12/2015 Page 1 - “It is true and a matter of record that Jones has judicially Motion to Compel Deposition of Defendant Allen J. admitted to human trafficking in open court in cause number 2013- Jones CI-04328.” Page 1-2 “It is also a matter of record that Jones held hostage his infant son in the Dominican Republic for five months to gain financial advantage in the pending divorce that was finalized on July 17, 2013.” 2 Plaintiff’s Amended Response to Defendant Kemp’s 10/6/2015 Page 3 – “Defendant Kemp was well aware of Defendant Jones’ Rule 91a Motion to Dismiss and request for Attorney business and personal activities, which included … Jones’ Fees disparaging treatment of females, including, but not limited to a judicial admission in a Bexar County District Court by Jones of having purchased a female in the Dominican Republic for his own needs.” Page 4 – “Defendant Kemp … is aware of Defendant Jones’ demadns of Plaintiff to work for approximately five months to assist him in his divorce defense, by caring for his infant child on a 24 hour basis, in addition to her other job duties …. Defendant Kemp … condones Defendant Jones’ ‘human trafficking’ as judicially admitted.” 3 Plaintiff’s Sixth Amended Original Petition 10/6/2015 Para 41 “Further, in other judicial proceedings, Defendant Jones made judicial admissions of … having financial resources to ‘buy’ a young lady from a brothel for $10,000.00 in the Dominican Republic where he also has extensive real estate holdings. In other words, judicial admissions of human trafficking on the part of the CEO of Defendant corporations, with the knowledge of other corporate officers, including Defendant Kemp, CFO. 4 Plaintiff’s Second Motion to Compel the Oral and 10/2/2015 Para 7 “Defendant Jones has a history here in Bexar County, Texas Videotaped Deposition of Defendant Allen J. Jones of making judicial admissions in other proceedings that would shock the conscious of this tribunal and has not suffered consequences. For example, Defendant Jones testified before the Hon. Judge Cathy Stryker that he paid $10,000.00 cash for his third wife in the Dominican Republic.” Para 8 – “Plaintiff believes that if Jones does not hold respect for the global laws of human rights and United States laws prohibiting human trafficking, Defendant Jones will not attend the oral and videotaped deposition…” 5 Plaintiff’s Response to Defendant Jones’ Motion to 9/15/2015 “Plaintiff Faire assisted [Jones] in the care of his infant son he was Disqualify Plaintiff’s Attorney holding hostage in the Dominican Republic to gain leverage in the divorce proceedings.” Exhibit B Para 4 – “My attorney Olga Brown represented Mr. Jones’ third wife, Tetyana Jones, in an international child custody case. Mr. Jones was accused of holding the infant, Astin, in the Dominican Republic to gain an advantage in his divorce action.” Exhibit B Para 6 – “As Mr. Jones’ personal assistant, I was to gather personal information and forward it to his legal team, Peter Donbavand, Melissa Figueroa, and counsel Sam Bashara.” 9 Plaintiff’s Fifth amended Original Petition 6/23/2015 Para 29 “Further, in other judicial proceedings, Defendant Jones made judicial admissions of … having financial resources to ‘buy’ a young lady from a brothel for $10,000.00 in the Dominican Republic where he also has extensive real estate holdings. In other words, judicial admissions of human trafficking on the part of the CEO of Defendant corporations, with the knowledge of other corporate officers, including Defendant Kemp, CFO." 10 Plaintiff’s Response to Defendant Kemp’s Rule 91a 6/16/2015 Page 2 – “Para 41 “Further, in other judicial proceedings, Motion to Dismiss and Request for Attorney Fees Defendant Jones made judicial admissions of … having financial resources to ‘buy’ a young lady from a brothel for $10,000.00 in the Dominican Republic where he also has extensive real estate holdings. In other words, judicial admissions of human trafficking on the part of the CEO of Defendant corporations, with the knowledge of other corporate officers, including Defendant Kemp, CFO.”” 20 Plaintiff's Petition for Leave to File Interlocutory 5/20/2015 Page 1 – “[Faire] lived in the Dominican republic caring for Jones’ Appeal children on a 24/7 basis for approximately five months, also assisting administratively in his defense in Jones’ divorce proceedings pending in Bexar County, Texas during 2013 and 2014.” 23 September 14, 2015 Correspondence from Olga Brown 9/14/2015 “Defendant Jones has made a judicial admission of his involvement in human trafficking. Jones has testified in open court before the Hon. Cathleen Stryker that he paid Ten Thousand Dollars to purchase a young lady from a brothel in the Dominican Republic. For your convenience, I am enclosing a transcript of his testimony.” “Jones’ conduct constitutes a serious crime and a grave violation of human rights. Therefore, his credibility in this motion and in the entire lawsuit is at issue.” 30 Transcript of Argument on Plaintiff's Motion for 5/6/2015 Reconsideration of Order Granting Jones Rule 91a Page 29:21-23 “She had been working, like I said, 24/7 helping Motion to Dismiss in Part him defend in the divorce pending here in bexar County.” Appendix 47I. Prior History of a Rule 91a Dismissal
II. Introduction and Background
III. Plaintiff Has Amended Petition Upon Which Motion is Based
IV. Arguments & Authorities Supporting Denial of Motion
A. An oral gift of real estate is an equitable exception to the Statute of Frauds:
B. Plaintiff’s Claim of Sexual Harassment is Authorized by TCHRA
V. Res Judicata Is Not Applicable to Defendant Kemp
VII. Standard of Review Met
1. This matter is set for Jury Trial March 7, 2016.
5. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD
12. Defendant Kemp, as Chief Financial Officer of the Defendant
45. Defendant Jones ordered Defendant Donbavand to complete the
I. INTRODUCTION
II. Refusal to Attend Deposition
III. Sanctions Requested
III. No Fiduciary Duty Between Jones and Faire
I. Waiver
II. Lack of Specificity
III. Meador
4. The significance of the privileged information.
IV. CONCLUSION & PRAYER
12. Defendant Kemp, as Chief Financial Officer of the Defendant
33. Defendant Jones ordered Defendant Donbavand to complete the
4. Defendant FMP SA MANAGEMENT GROUP, LLC, D/B/A FOOD
17. While Defendant Donbavand was completing the necessary
33. Defendant Jones ordered Defendant Donbavand to complete the
12. Defendant Kemp, as Chief Financial Officer of the Defendant
33. Defendant Jones ordered Defendant Donbavand to complete the
I. Introduction and Background
II. Plaintiff Has Amended Petition Upon Which Motion is Based
III. Arguments & Authorities Supporting Denial of Motion
A. An oral gift of real estate is an equitable exception to the Statute of Frauds:
B. Plaintiff’s Claim of Sexual Harassment is Authorized by TCHRA
IV. Res Judicata Is Not Applicable to Defendant Kemp
33. Defendant Jones ordered Defendant Donbavand to complete the
I. Plaintiff Has Amended Petition upon which Motion is Based
J. Jones and all his companies. Defendant Jones’ unlawful conduct compelled her to
III. Arguments & Authorities
A. Defendants Are Barred From Invoking the Defense of Statute of Fraud
B. Plaintiff’s Claims for Wrongful Termination Are Discriminatory in Nature.
A. Texas Rule of Civil Procedure 91a. . . . . . . . . . . . . . . . . . . 5
A. Standard of Review
A. Texas Rule of Civil Procedure 91a
W. Bradley Parker, Rule 91a Motions to Dismiss, in STATE BAR OF TEXAS
I. INTRODUCTION & FACTUAL BACKGROUND
II. SrANDARD OF REVIEW
A. Rule 91a Standard ofDismissal
36. Plaintiff has made numerous attempts to get her personal
II. DEFENSES
33. Defendant Jones ordered Defendant Donbavand to complete the
I. Factual Background of Earlier Motion
II. Contents of Motion Fails to Identify Cause of Action Challenged by Movant
III. Movants Merely Argued Evidence, Contrary to Rule
IV. Movants Failed to Address Individual Conspirators Acts
I 13 PLAINTIFF'S WITNESS (ES) DIRECT CROSS VOIR DIRE VOL. ' 14 (None)
I ' 1 motion to enter, it is strictly an administerial hearing
I 13 in March . I am not going to include it in my order of ',
I declare under penalty of perjury that the foregoing is true and correct.
II. Instructions for Interrogatories
III. FIRST SET OF INTERROGATORIES
IV. Instructions for Requests for Production
V. Requests for Production
I. Definitions and Instructions
50. Documents evidencing Plaintiff’s “moving expenses.”
in Re Allen J. Jones (in Re Allen J. Jones) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.