in Re 8650 Frisco, LLC D/B/A Estilo Gaucho Brazilian Steakhouse, Mandona, LLC, Galovelho, LLC, Bahtche, LLC, Claudio Nunes and David Jeiel Rodrigues, 01-15-00423-CV

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

01-15-00423-CV

| Tex. App. | May 7, 2015

Check Treatment

Case Information

*1 ACCEPTED

01-15-00423-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 5/7/2015 11:44:52 AM CHRISTOPHER PRINE CLERK No. 01-15-00423-CV IN THE FIRST JUDICIAL DISTRICT COURT OF APPEALS at HOUSTON, TEXAS IN RE 8650 FRISCO, LLC d/b/a ESTILO GAUCHO BRAZILIAN STEAKHOUSE, MANDONA, LLC, GALOVELHO, LLC, BAHTCHE, LLC, CLAUDIO NUNES, and DAVID JEIEL RODRIGUES, Relators ORIGINAL PROCEEDING FROM THE 133 rd JUDICIAL DISTRICT COURT OF HARRIS COUNTY, TEXAS EMERGENCY RELIEF REQUESTED MOTION FOR EMERGENCY TEMPORARY RELIEF TO STAY ACTION BY THE TRIAL COURT

TO THE HONORABLE FIRST COURT OF APPEALS: Relators, 8650 Frisco LLC, Mandona, LLC, Galovelho, LLC, Bahtche, LLC, Claudio Nunes, and David Jeiel Rodrigues (hereinafter “Relators”) file this, the Relators’ Motion for Temporary Relief and would respectfully show the Court as follows:

I NTRODUCTION 1. Relators are 8650 Frisco LLC, Mandona, LLC, Galovelho, LLC, RELATORS’ MOTION FOR TEMPORARY RELIEF P AGE 1 OF 8

*2 Bahtche, LLC, Claudio Nunes, and David Jeiel Rodrigues. 2. The Real Parties In Interest are Los Cucos Mexican Café VIII, Inc., Los Cucos Mexican Café IV, Inc., Manuel Cabrera, and Sergio Cabrera 3. Respondent is the Honorable Jaclanel McFarland, Judge Presiding of the 133 rd Judicial District Court, located in Harris County. 4. Relators filed their Petition for Writ of Mandamus on May 6, 2015, in the above captioned case. 5. Relators attach a certificate of compliance certifying that on May 7, 2015, they notified respondent and real parties in interest by expedited means that a motion for temporary relief has been filed. Tex. R. App. P. 52.10(a).

6. The original proceeding in which a petition for writ of mandamus was filed complains of two orders issued by the Respondent compelling discovery responses and imposing sanctions on the Relators for failure to comply with previous discovery orders.

7. Respondent’s April 1, 2015 order compelled discovery of documents which have no relevance to the live pleading on file with the trial court. 8. Additionally, Respondent’s April 27, 2015 Order included sanctions barring Relators from further discovery until the documents are RELATORS’ MOTION FOR TEMPORARY RELIEF P AGE 2 OF 8 *3 produced, taxing costs incurred in securing production of the documents to the Relators, and conclusively establishing an unpleaded issue in favor of the Real Parties in Interest.

9. Finally the order demanded compliance by hand delivery of responsive documents to the office of Counsel for the Real Parties in Interest forty- eight hours after the Respondent signed the order. Said office is in Houston, and is 260 miles from the Office of Counsel for Relators. The documents for which discovery was compelled had been served pursuant to TEX. R. CIV. P. 21 and 21a twice previously.

10. Respondent signed this order in the presence of Counsel for Real Parties in Interest but outside the presence of Relators’ attorney. 11. On May 3, 2015, Counsel for Real Parties in Interest served the April 27, 2015 order on Relators’ attorney requiring compliance by April 29, 2015. Counsel then demanded compliance by noon on May 4, 2015. This letter is attached to the motion as “Exhibit A” and is incorporated in haec verba.

12. On May 4, 2015, Counsel for Real Parties in Interest filed with the Respondent and served on Relators’ attorneys its Fourth Motion to Enforce the Court’s Order in which the Real Parties in Interest

RELATORS’ MOTION FOR TEMPORARY RELIEF P AGE 3 OF 8 *4 demanded that the Respondent strike the Relators’ pleadings for failure to comply. The Fourth Motion to Enforce the Court’s Order is attached to this motion as “Exhibit B” and is incorporated in haec verba. The Real Parties in Interest set this matter for hearing on May 18, 2015.

A RGUMENT & A UTHORITIES 13. The Court may grant temporary relief pending its determination of an original proceeding. Tex. R. App. P. 52.10(b). 14. This emergency stay is necessary to maintain the status quo of the parties and to preserve the Court’s jurisdiction to consider the merits of the original proceeding. In re Reed , 901 S.W.2d 604, 609 (Tex. App.—San Antonio 1995, orig. proceeding). Relators filed their Petition in the above captioned case on May 6, 2015, seeking relief from both the April 1, 2015 order and the April 27, 2015 order, both of which the Real Parties In Interest seek to enforce in their Fourth Motion to Enforce the Court’s Order.

15. The issues at the heart of Relators’ Petition for Writ of Mandamus are the same issues on which the Real Parties’ in Interest Motion to Enforce are based. See Exhibit B. Granting the Petition for Writ of Mandamus would dispose the issues in the Petition and in the Fourth Motion to

RELATORS’ MOTION FOR TEMPORARY RELIEF P AGE 4 OF 8 *5 Enforce the Court’s Order simultaneously. A stay maintains the state of affairs between the parties, and prevents irreparable harm from accruing to either side, pending the court’s decision on the Relator’s Petition for Writ of Mandamus.

16. Relator attaches an unsworn declaration to establish facts that are not included in the appellate record, are not known to the Court in its official capacity, and are not within the personal knowledge of the attorney signing this motion. Tex. R. App. P. 10.2.

C ONCLUSION 9. Because the issues raised by the Relators in above-captioned original proceeding address all of the issues raised by the Real Parties in Interest in their Fourth Motion to Compel, a stay would operate to prevent needless expense to both parties and the trial court and would resolve the ongoing discovery dispute.

P RAYER WHEREFORE, PREMISES CONSIDERED, the Relators ask the Court for an emergency stay of the Respondent’s consideration of Real Parties’ in Interest Fourth Motion to Enforce until such time as this Court has had an opportunity to review the merits of Relators’ above-captioned Petition for Writ of RELATORS’ MOTION FOR TEMPORARY RELIEF P AGE 5 OF 8 *6 Mandamus. This stay will maintain the status quo of the parties and preserve the Court’s jurisdiction to consider the merits of relator’s original proceeding. R ESPECTFULLY S UBMITTED , M OSSER L AW PLLC /s/ James C. Mosser James C. Mosser Texas Bar No. 00789784 Nicholas D. Mosser Texas Bar No. 24075405 Paul J. Downey Texas Bar No. 24080659 2805 Dallas Parkway, Suite 220 Plano, Texas 75093 Tel. (972) 733-3223 Fax (469) 626-1073 courtdocuments@mosserlaw.com LAWYERS FOR RELATORS

CERTIFICATE OF COMPLIANCE 1 In accordance with Tex. R. App. P. 52.10, the relators have notified all parties by expedited means that a motion for temporary relief has been or would be filed in this court. The following parties were notified: Respondent Honorable Jaclanel McFarland Judge Presiding 133 rd Judicial District Court Harris County Civil Courthouse 201 Caroline, 11 th Floor Houston, Texas 77002 Tel. 713-368-6200 RELATORS’ MOTION FOR TEMPORARY RELIEF P AGE 6 OF 8 *7 Real Parties In Interest Los Cucos Mexican Café VIII, Inc.; Los Cucos Mexican Café IV, Inc.; Manuel Cabrera; and Sergio Cabrera, represented by Stephens & Domnitz, PLLC Kelly Stephens Texas Bar No. 19158300 P.O Box 79734 Houston, Texas 77279-9734 Tel. 281-394-3287 Fax 832-476-5460 kstephens@stephensdomnitz.com /s/ Paul J. Downey Paul J. Downey

CERTIFICATE OF COMPLIANCE 2

I certify that this Motion for Leave to File Appellee’s Sur-Reply complies with the word limit of Tex. R. App. P. 9.4 because it contains 867 words, excluding the parts of the motion exempted by Tex. R. App. P. 9.4. I relied on the word count feature of Corel WordPerfectX6 to reach this number /s/Paul J. Downey Paul J. Downey

CERTIFICATE OF CONFERENCE

I certify that on May 7, 2015, I attempted to confer with Kelly Stephens, the attorney-in-charge for the Real Parties’ In Interest litigation efforts in accordance with TEX. R. APP. P. 10.1(a)(5). He failed to respond to the request prior to the filing of this motion. /s/ Nicholas D. Mosser Nicholas D. Mosser RELATORS’ MOTION FOR TEMPORARY RELIEF P AGE 7 OF 8

CERTIFICATE OF SERVICE

*8 In accordance with TEX. R. APP. P. 9.5, I certify that on May 7, 2015, I served a copy of this Motion for Temporary Relief on the following parties: Respondent Honorable Jaclanel McFarland Judge Presiding 133 rd Judicial District Court Harris County Civil Courthouse 201 Caroline, 11 th Floor Houston, Texas 77002 Tel. 713-368-6200 Real Parties In Interest Los Cucos Mexican Café VIII, Inc.; Los Cucos Mexican Café IV, Inc.; Manuel Cabrera; and Sergio Cabrera, represented by Stephens & Domnitz, PLLC Kelly Stephens Texas Bar No. 19158300 P.O Box 79734 Houston, Texas 77279-9734 Tel. 281-394-3287 Fax 832-476-5460 kstephens@stephensdomnitz.com /s/ Paul J. Downey Paul J. Downey RELATORS’ MOTION FOR TEMPORARY RELIEF P AGE 8 OF 8

CAUSE NO. 2014-10896

*9 LOS CUCOS MEXICAN CAFE VIII, § IN THE DISTRICT COURT § INC., LOS CUCOS MEXICAN § CAFE IV, INC., MANUEL CABRERA, and SERGIO §

CABRERA

§ PLAINTIFFS,

§ § 133rd JUDICIAL DISTRICT V. § § 8650 FRISCO LLC, MANDONA § LLC, GALOVELHO LLC, § BAHTCHE LLC, CLAUDIO § NUNES, AND DAVID JEIEL § RODRIGUES § OF HARRIS COUNTY, TEXAS DEFENDANT.

UNSWORN DECLARATION OF PAUL J. DOWNEY

1. My name is Paul J . Downey. I am of sound mind, capable of making this unsworn declaration, and personally acquainted with the facts herein stated .

2. I am a lawyer at Mosser Law, PLLC. 3. I am one of the custod ians of the records at Mosser Law, PLLC. 4. Attached hereto are the following 50 pages of records from Mosser

Law, PLLC. These records are kept by Mosser Law, PLLC in the regular course of business, and it was in the regular course of business of Mosser Law, PLLC, that an employee or representative of Mosser Law PLLC, with knowledge of the act or event recorded , *10 made the records.

5. The records were made at or near the time of the event, or reasonably soon thereafter. 6. The records attached hereto are exact duplicates of the originals and contain: a. Exhibit A- Letter from Real Parties in Interest Dated May 3,

2015; b. Exhibit B - Real Parties' in Interest Fourth Motion to Enforce the Court's Order, filed May 4, 2015 My name is Paul James Downey, my date of birth is January 19, 1984, and my address is C/0 Mosser Law, PLLC, 2805 Dallas Parkway, Suite 222, Plano, Texas 75093, United States of America . I declare under penalty of perjury that the foregoing is true and correct. Executed in Collin County, State of Texas on the 5th Day of May, 2015.

P/(2z_ Z ~ PauiJ. Er~ ~ *11 HAWASH MEADE Samuel B. Haren sharen@hmgnc.com HAWASH MEADE GASTON NEESE & CJCACK LLP 713-658-9001 (phone) 713-658-9011 (fax) May 3, 2015 Via Facsimile: (469) 626-1073 Mr. James C. Mosser Mr. Nicholas D. Mosser Mosser Law PLLC 17110 Dallas Parkway, Suite 290 Dallas, Texas 75248

Re: Cause No. 2014-10896, Los Cucos Mexican Cafe VIIL Inc. et al. v. 8650 Frisco, LLC et al. in the 133rd Judicial District Comt ofHanis County, Texas Dear Mr. Mosser: The Comt' s order is attached. As you are aware, it was readily available to anyone from the Court's clerk and to any licensed attomey from the District Clerk's website. As stated in my previous letter, if you have not complied with the Court's order by noon on Monday, May 4, 2015, we will file a fomth motion to enforce the Comt's order.

_;'_ff ~-H-a-re_n _ _ _

2118 Smith Street I Houston, Texas 77002 Main Phone: (713) 658-9001 I Main Facsimile: (713) 658-9011 www. hmg II p.com Exhibit A

CAUSE NO 2014-10896

*12 IN THE DISTRICT COURT OF f,Z - LOS CUCOS MEXICAN CAFE Vill, § INC , LOS CUCOS MEXICAN § CAFE IV, INC , MANUEL §

cf Mr£u=x * /tTFE)( CABRERA, and SERGIO § CABRERA, § §

Plamtiffs ~ (}

§

v § § HARRIS CO~, TEXAS ""' ~ 9 0~ 8650 FRISCO, LLC D/B/A ESTILO § ~ CP GAUCHO BRAZILIAN § 0~ STEAKHOUSE, MANDONA, LLC, §

«:::}~ GALOVELHO, LLC, BAHTCHE, § LLC, CLAUDIO NUNES, and §

~ ^[0] DAVID JEIEL RODRIGUES, § 0~ ~ Ul~ JUDICIAL DISTRICT& Defendants § ftj(9}

Order Grantm

Third MotiOn To En~ he Court's Order On thrs day the Court came to con~Wlamtrffs' Thrrd Matron to Enforce the Court's cg Order (the "Motion") After consrdenn~e facts, law, and argument of counsel, the Court has decrded to GRANT the Matron nt~nts Will produce all documents responsive to Requests for Production 1, 2, 3, 4, 5, 7~Q8 contamed m Exhrbrt 1 to the Mohon (the "Documents")

~0. Thrs productron must be ~hrough hand delivery dunng normal busmess hours to Andrew

G

Meade or Samuel H~ at HAWASH MEADE GASTON NEESE & CICACK LLP, 2118 Smrth, o~j Houston, Texas 7f!;Qj. · ' The ~Q fiuther finds that Defendants VIOlated three of the Court's pnor orders by farlmg to ~uce responsrve documents Thrs misconduct Is part of a larger pattern of Improper objectwns, mentless motions, frrvolous arguments, fergned rgnotance of baste factual and legal Issues, and drshonest gamesmanship m vrolatwn of Texas Rule of Crvll Procedure 13 Pt evrous warnmgs from the Court have been meffectrve m forcmg Defendants to comply wrth the Court's

Exhibit A *13 orders or with Texas law, and another warnmg IS unlikely to achieve better results Moreover, another warnmg would only encourage Defendants to contmue their egregwus behaviOr m the future

Accordmgly, the Court ltnposes the followrng sanctiOns * • Defendants may not conduct additional discovery m this matter u~~representattve of 8650 Fnsco, LLC stgns a sworn affidavit of compliance wtth ~~rder, • Defendants shall pay $ i V()V, f30

to Plamtlffs fot; ~ costs mcurred m secunng productiOn of the. ocuments, and ~ the Issue of whether Plamtrffs face Irreparable harm ~~e lack of the note/secunty

• requrred by the parties' contract IS conclusively es~Yed m Plarntiffs' favor 0~ Should Defendants fall to comply w1th this order w~ forty~eight hours of the stgnature

WJ

hereof, Defendants and their attorneys of record wtl~ asked to personally appear and show cause as to why they should not be held m cont~~th1s Court

~ru Signed on the _Jj_ day of 4f:rt?J<f!2 , 2015 a~

~c-k9J

~~ ug

(~

o~ry; ~0 ~ ~ 2 Exhibit A

5/4/2015 2:00:20 PM

*14 Chris Daniel - District Clerk Harris County Envelope No. 5138641 By: JIMMY RODRIGUEZ Filed: 5/4/2015 2:00:20 PM Cause No. 2014-10896 Los Cucos Mexican Cafe VIII, Inc.; In the District Court of Los Cucos Mexican Cafe IV, Inc.; Manuel Cabrera; and Sergio Cabrera, Plaintiffs v.

Harris County, Texas 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse; Mandona, LLC; Galovelho, LLC; Bahtche, LLC; Claudio Nunes; and David Jeiel Rodrigues, Defendant 133rd Judicial District

Plaintiffs’ Fourth Motion to Enforce the Court’s Order and for Sanctions The Court has ordered Plaintiffs to produce certain financial documents on four separate occasions. Defendants have refused to do so. Plaintiffs request that the Court obviate the need for further document production by striking Defendants’ pleadings.

Background At a June 23, 2014 hearing, the Court orally ordered Defendants to produce certain financial documents. Exhibit 1, Transcript of Motion to Compel Hearing at 23:2–9. Defendants pretended that, they “ha[d] never been served with an order from the court to produce documents,” they were not required to do so. Exhibit 2 Letter from Mosser to Stephens. On July 28, 2014, the Court again ordered Defendants to produce all responsive documents “by August 1, 2014.” Exhibit 3, Order on Plaintiffs’ Third Motion to Compel. Defendants improperly served an inadequate production. On March 30, 2015, the Court ordered Defendants a third time to produce all responsive documents “by 5:00 p.m. on Wednesday, April 1, 2015.” Exhibit 4, Order on Plaintiffs’ Second Motion to Enforce the Court’s Order. Defendants again violated the Court’s order by making a woefully incomplete production.

*15 On the morning of Monday, April 27, the Court ordered Defendants to (1) produce all responsive documents and (2) pay a $1,000 sanction. Exhibit 5, Order Granting Plaintiffs’ Third Motion to Enforce the Court’s Order. The Court further ordered that, “[s]hould Defendants fail to comply with this order within forty-eight hours of the signature hereof, Defendants and their attorneys of record will be asked to personally appear and show cause as to why they should be held in contempt of this Court.” Id. Once again, Defendants ignored this order.

On Thursday, April 30, Plaintiffs informed Defendants of their failure to comply with the Court’s order and demanded production of the documents and payment of the sanction before noon on Monday, May 4. Exhibit 6, Letter from Haren to Mosser. At 4:50 p.m. on Friday, May 1, Defendants sent the following response: Exhibit 7, Letter from Mosser to Stephens. Even though the order was available from the Court’s office and through the District Clerk’s website, Plaintiffs forwarded a copy of the order to Defendants on Sunday, May 3. Exhibit 8, Letter from Haren to Mosser.

Background The Court has ordered Defendants to produce certain documents on four separate occasions. Defendants have refused or failed to comply all four times. Defendants’ most recent is excuse is that they were not “served” a copy of the Court’s order. See Exhibit 7, Letter from Mosser to Stephens As the Court may recall, this was the same explanation Defendants offered

2 *16 for their failure to comply with the original order compelling production. See Exhibit 2, Letter from Mosser to Stephens. This excuse was invalid both times it was made. Regardless of whether Defendants “served” a copy of the Court’s order, “[t]he law charges all parties and their lawyers with notice of all orders and judgments that the court renders in the case.” Welborn Mortg. Corp. v. Knowles , 854 S.W.2d 328, 331 (Tex. App.—Dallas 1993, writ denied). For this reason alone, Defendants are deemed to have known the contents of the Court’s order.

Moreover, “[t]he law charges one who has knowledge of facts that would cause a prudent man to inquire further with notice of the facts that, by use of ordinary intelligence, he would have learned.” Id. Defendants appeared at the April 27 hearing telephonically, so they were aware that the Court ordered them to produce documents and pay a sanction. Defendants were further aware that copies of the order could have been easily obtained by calling the Court’s clerk or by visiting the District Clerk’s website. A reasonably prudent attorney who was ordered to pay a sanction and produce documents would make an effort to obtain such orders rather than remaining deliberately ignorant.

Further, Defendants received actual notice at 1:57 p.m. on April 30 that the Court had signed an order requiring Defendants produce documents and pay a sanction within 48 hours. See Exhibit 6, Letter from Haren to Mosser. Thus, Defendants had at least 94 hours between receipt of actual notice of the terms of the Court’s order and the filing of this motion.

As a sanction for Defendants’ fourth failure to comply with the Court’s order, Plaintiffs ask the Court to order that:  Defendants’ attorneys pay Plaintiffs a sanction for all attorneys’ fees incurred in attempting to obtain the requested documents;  Defendants and their attorneys appear and show cause as to why they should not be held in contempt; and  Defendants be disallowed from conducting any discovery in this case. 3 *17 Plaintiffs are hopeful that such a sanction will be sufficient to ensure future compliance with the Court’s orders and Defendants’ obligations under the Texas Rules of Civil Procedure. Conclusion Defendants continue to ignore the Court’s orders. Plaintiffs pray that the Court further sanction Defendants and order Defendants and their attorneys to show cause as to why they should not be held in contempt. Plaintiffs further pray for all other relief to which they are entitled.

Respectfully submitted, Hawash Meade Gaston Neese & Cicack LLP /s/ Samuel B. Haren Andrew K. Meade State Bar No. 24032854 Jeremy M. Masten State Bar No. 24083454 Samuel B. Haren State Bar No. 24059899 2118 Smith Street Houston, Texas 77002 713-658-9001 (phone) 713-658-9011 (fax) ameade@hmgnc.com jmasten@hmgnc.com sharen@hmgnc.com Stephens & Domnitz, PLLC Kelly D. Stephens State Bar No. 19158300 P.O. Box 79734 Houston, Texas 77279-9734 281-394-3287 (phone) 832-476-5460 (fax) kstephens@stephensdomnitz.com

4 *18 Cox Smith Matthews Incorporated David Kinder State Bar No. 11432550 112 East Pecan Street, Suite 1800 San Antonio, Texas 78205 210-554-5500 (phone) 210-226-8395 (fax) Attorneys for Plaintiffs

Certificate of Conference I sent two letters to opposing counsel in an effort to obtain the documents and payment without further judicial intervention. I further tripled the time for compliance from the two days allowed by the Court to six. Despite this, Defendants still have not complied with the Court’s order.

/s/ Samuel B. Haren Samuel B. Haren

Certificate of Service A true and correct copy of the foregoing has been served on all counsel of record via electronic service on May 4, 2015. James C. Mosser Nicholas D. Mosser Mosser Law PLLC 17110 Dallas Pky, Suite 290 Dallas, Texas 75248

/s/ Samuel B. Haren Samuel B. Haren

MOTION TO COMPEL

*19 1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME TRIAL COURT CAUSE NO. 2014-10896 LOS CUCOS MEXICAN CAFE VIII( IN THE DISTRICT COURT OF INC.;LOS CUCOS MEXICAN ( CAFE IV,INC.; MANUEL ( CABRERA;AND SERGIO CABRERA ( (

VS. ( HARRIS COUNTY, TEXAS

( 8650 FRISCO,LLC D/B/A ESTILO GAUCHO BRAZILIAN ( STEAKHOUSE; MANDONA,LLC; ( GALOVELHO,LLC;BAHTCHE, ( LLC; CLAUDIO NUNES; AND ( DAVID JEIEL RODRIGUES ( 133rd JUDICIAL DISTRICT _______________________________________________________

MOTION TO TRANSFER

_______________________________________________________ On the 23rd day of June, 2014, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable JACLANEL McFARLAND, Judge Presiding, held in Houston, Harris County, Texas.

Proceedings reported by computerized stenotype machine. DARLENE STEIN

OFFICIAL COURT REPORTER 133RD DISTRICT COURT

HARRIS COUNTY, TEXAS

DARLENE STEIN

Exhibit B Page 9 Exhibit 1

MOTION TO COMPEL

*20 2

APPEARANCES

Mr. Andrew K. Meade

SBN 24032854

Mr. Samuel B. Haren

SBN 24059899

2118 Smith Street Houston, Texas 77002 Telephone: (713)658-9001 Telephone: (713)658-9011 (Fax) Attorney for Plaintiffs Mr. Nicholas D. Mosser

SBN 24075405

Mr. James Mosser

SBN 00789784

17110 Dallas Parkway, Suite 290 Dallas, Texas97 75248 Telephone:) (972)733-3223 Telephone: (972)267-5072 Attorney for Defendants

MOTION TO COMPEL

*21 3

CHRONOLOGICAL INDEX

June 23, 2014

PAGE

Proceedings............................... 4 Argument by Mr. Meade..................... 6 Argument by Mr. Mosser.................... 11 Proceedings concluded..................... 25 Reporter's Certificate.................... 26

MOTION TO COMPEL

*22 4

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

June 23, 2014 THE COURT: This is Cause No. 2014-10896. And if everyone would announce who they are and who they represent, please.

MR. MEADE: Andrew Meade and Sam Haran for the Plaintiffs. THE COURT: Mr. Mosser, if you'll announce who you are and who you represent, please. MR. MOSSER: I'm sorry? THE COURT: Announce who you are and who

you represent. MR. MOSSER: Yes, ma'am. This is James Mosser, Mosser Law Firm, PLLC, appearing telephonically on behalf of all Defendants.

THE COURT: Okay. I will tell you that I don't have the motions in front of me. My law clerks have gone to get them. For some reason, even though you are on the docket, they thought it had been pulled. So, anyway, but I'm going to let y'all go ahead and start. I think it's Plaintiff's motions. So, I'm going to let them go ahead and start while the law clerks are bringing in the actual written motions.

MR. MEADE: All right. Your Honor, if

MOTION TO COMPEL

*23 5 you'll recall, this is a -- my client supplied about $950,000 in some equipment for a restaurant --

MR. MOSSER: Your Honor, if he could get closer to the microphone or speak up louder, it would be easier to hear.

THE COURT: Yeah. Well, I'll put the phone a little closer. But, you know, have you got a storm in Dallas? Is that the problem or what? You know, when you don't show up, it's -- we can only do the best we can do.

You know, that's why when I practiced law, I didn't depend on Southwest. Now, going to committee meetings, I depended on Southwest a lot. I was on a lot of Baptist boards that met over on North Washington, the Baptist building. But when I had a case, I usually drove down the night before or drove up or drove west or east or wherever I was going.

MR. MEADE: And -- and for convenience, Your Honor, we will try to set hearings in the case on Fridays and Mondays to make that more convenient.

THE COURT: Well, we don't have hearings on Fridays. So, they have to be on Mondays. MR. MEADE: Mondays. And so, the situation that we've got

here -- Your Honor will recall that we had previously

MOTION TO COMPEL

*24 6 noticed depositions for early May of the Defendants, that those depositions had been quashed. So, we set a Motion to Compel. The Court ordered the depositions to occur in June. We agreed on dates that were put into the Court's order, which was June 9th and 10th for six depositions to occur.

On the Sunday before -- June 9th was a Monday. 10th was a Tuesday. On the Sunday before, Mr. Mosser left a message on Mr. Stephen's phone, saying that he wouldn't be attending the depositions nor would his clients because -- and they subsequently filed a motion. Mr. Mosser apparently has a nervous system injury of some sort that he came down with the day before the depositions. And there is nobody else within his four-person law firm who's qualified to sit in a chair and defend a deposition.

He then went and set his Motion to Transfer Venue, offered us some dates in late July that -- or -- that conflict with a trial that I have in Judge Englehart's court. And then when I rejected those dates, offered dates in August.

And we have run into a problem now, which is that I leave the country on Saturday for two and a half weeks. I get back and have five days to prepare for a week-long trial in Judge Englehart's court. And then at

MOTION TO COMPEL

*25 7 the end of the week that I'm in trial with Judge Englehart is their Motion to Transfer Venue. We have taken the position, which is correct under the rules, that discovery should not be and cannot be, in fact, abated while a Motion to Transfer Venue is pending.

They have taken the position and even set for today and then withdrew a Motion to Stay all proceedings while they have the opportunity to have that Motion to Transfer Venue heard.

We're going to have to take these depositions before the Motion to Transfer Venue hearing. We need them ordered and compelled, and we need the Motion to Transfer Venue hearing pushed back till that can happen.

But we also need Mr. Mosser or his clients to pay the costs of the depositions that were ordered -- I took Certificates of Nonappearance on all six depositions -- and that they ought to have to bear the cost on each of those.

The next issue that we have is as you'll recall, we have an accountant that worked for the company in New Braunfels and then a new accountant in Dallas. We had the -- the letter and correspondence where they said, you know, turn over all records and destroy all in your possession. And -- and we had to move to compel the

MOTION TO COMPEL

*26 8 accountant to produce the records from New Braunfels, and he did produce the records to us.

But we have also asked for certain financial records, including tax records and other financial documents from the Defendants themselves; and soon we will -- and, also, their new accountant, who will soon have to come down on a Motion to Compel, as well, although that's not part of today.

The -- the other issue that is part of today is their responses and objections to our requests for production, which deal with the financial and tax records.

Starting with the tax records, there are numerous reasons why as members of the company and -- that -- that we're entitled to the tax records of an LLC. First of all, the statute allows it.

Second, we need to prepare our own tax returns. Third, how they chose to characterize our capital contributions, the proportion of what is characterized as a loan and capital contribution and all of that is going to be relevant to the parties' agreement or disagreement about our membership status and -- and how much money is owed in terms of -- our position is that part of the money was loaned and part of it was a capital

MOTION TO COMPEL

*27 9 contribution, and -- and they may or may not disagree, although they haven't disclosed their theory of the case to us at all in any way. That will be relevant, those tax records.

The other financial records, which include bank account statements, we're -- we're entitled to the books and records, again, of the company; but, also, these bank account statements are going to be relevant to whether distributions -- because under the -- under the limited liability company act, under the partners' oral agreement, and under the written agreements that were exchanged, we would be entitled to distributions of distributable cash.

None have been made to us. We believe some have been made to the Defendants, substantial distributions, and that there is distributable cash. We believe that, but we don't have the records to show it, and the bank statements will go a long ways towards that.

What we've met with to date is an objection every step of the way and resistance even to Court-ordered depositions. And -- and the objection that was made, for example, to the accountant's records was that objection of privilege that the Texas courts don't recognize. Well, it was made again in response to requests for production after the Court had already ruled on the objection in

MOTION TO COMPEL

*28 10 relation to the accountant. They made other objections; for example, objecting that the Texas Finance Code provides the exclusive means to get bank account statements, even bank account statements of a party. I -- I assure you that I will go to the bank, under the Texas Finance Code, and get the bank statements separately. But that doesn't alleviate the obligation of a party to produce those bank statements.

So, a recommendation in -- in one of my motions is really -- it's really -- we're asking for the relief but sort of recommending a path for the Court, would be to appoint a discovery master in the case. I don't mind coming down here once a week, and I suspect we will be back here again in a week. And I'll tell you why.

You know, we had these grills. I -- I don't know if you remember the -- the unique grills. Well, we have reason to believe that the grills have been destroyed. And I've asked for an inspection of the collateral, of -- of the property. They haven't responded to it. I'm going to be asking the Court for it and probably having to move it to compel.

When these depositions do occur, I suspect I'm going to meet with a series of objections and probably instructions to the witness not to answer and that sort of

MOTION TO COMPEL

*29 11 thing. And I -- and we can have the depositions in your chambers. I leave it to the Court's discretion of how we deal with these issues; but I would rather, if we can avoid it -- and I -- I know that judges, including yourself, don't like us coming down here all the time on Motions to Compel. I would like to avoid them, if possible. And so, the appointment of a discovery master is one suggestion to do that.

And I'll let Mr. Mosser respond. THE COURT: Mr. Mosser? MR. MOSSER: Yes, ma'am. THE COURT: You may respond. Hello? MR. MOSSER: Yes, ma'am. I'm right here. THE COURT: Where -- you want to respond? MR. MOSSER: Oh, yes, ma'am. I surely

will. Thank you. May it please the Court? Let me go backwards a little bit here. Let's start with the grills are being destroyed, which is a false statement made by counsel. It has become custom in this case. The problem is we sent notice to counsel that he should come and pick up the grills, and counsel told us they weren't going to pick up the grills.

So, we told them if they leave the grills

MOTION TO COMPEL

*30 12 that they claim they loaned to my clients, we told them, If you don't pick them up, we'll just put them in storage; and you can pay the storage bill when you get here. Nobody said they were going to destroy them, and it's just outrageous that he would say those kinds of things.

As for bank accounts, the Finance Code does provide the method by which he can obtain the bank accounts. But let's assume he doesn't want to do that and I'm required to deliver bank accounts. If the Court will recall, he mentioned that he held a deposition on written questions for Mr. -- I can't remember the accountant's name -- Hal Holtman, I think -- to produce all the records he had related to anything with my clients.

Now, if you will recall from the -- the Temporary Injunction hearing, Mr. Holtman went and testified on everything we told him he shouldn't be testifying on; and then he subsequently, based on comment from counsel this morning, delivered all the documents he had to the Plaintiff's lawyers in this case. That includes the tax returns, all bank statements, all the income statements, all the financial statements, everything related to the business until Mr. Holtman was fired.

Now, the Court ordered that. Mr. Holtman turned them over, over our objection. So, I don't think

MOTION TO COMPEL

*31 13 that we're required to produce records in a duplicitous manner that have already been produced by the accountant in this case.

And, secondly, those documents were produced to opposing counsel who has yet to this day served them on us. When he gets discovery from whatever source it's from, he's required to serve everybody in the lawsuit, all parties, a copy of that discovery. He has not done so. So, I don't have any.

Going back to the top of the complaint from opposing counsel, I'm 69 years old; and I can't help it if my sacral iliac joint gets sprained, inflamed, bruised, and strained. I can't do anything about that. We immediately notified, upon determination that I was immobile, that this deposition had to be reset or postponed.

I think it's outrageous that I can't even pick up the phone and call a counsel for a medical problem that he won't reset depositions for or even respond to the telephone calls. I think it's outrageous that they file motions claiming that they've had a conference with opposing counsel, which is plainly false. They didn't have any conference with us. In fact, they filed these motions and then claimed that they had a conference after they filed the motion.

MOTION TO COMPEL

*32 14 As for offering dates, we offer to set a date in July; and understanding trial schedules, as I do, I was required to file a Motion to Continuance on -- let's see -- that date that he wanted to do these, the 16th, 17th, somewhere in there because I had a special setting. I had to go into that court and request the Court reset the special setting in that case because of my sacral iliac sprain.

I don't under -- I suppose five years ago when I had my quadruple bypass surgery, opposing counsel would complain because that was just an excuse. These are not excuses. These are real-live things. We've offered a second set of dates. Counsel didn't even respond to them.

Now, counsel also says that we don't -- we should take depositions to get proof for the Motion to Transfer Venue. I don't think the Motion to Transfer Venue is set for today, but he puts it in his -- in his response or his Third Amended Motion to Compel, and I don't understand. He believes that the testimony given in open court on the record and sworn to by his clients can't be used in Motion to Transfer Venue. At some point in time, the Court will have to rule on that motion; and I will be happy to defend that issue.

As for costs, counsel fails to properly prepare any cost statements, hasn't made any cost

MOTION TO COMPEL

*33 15 statements, hasn't suffered from any problems other than my sacral iliac joint sprain; and I don't think he would like me sitting in his conference room, taking the narcotics that I was taking and the side effects that go with it.

So, he has all of the financial records we believe that exist, delivered by Holtman over our objection. He did not properly serve the accountant -- the new accountant in Texas, which is more than 150 miles and -- away, and he doesn't have a right to get anything from him.

And as for tax records from the LLC, they're not members. They never have been members. They're not members. They rejected the opportunity to become a member, and that's clear testimony in the Temporary Injunction hearing.

So, I think I've covered the waterfront. But as far as tax returns, the State of Texas has made very clear by the Supreme Court and the Court of Appeals in Houston -- I think every Court of Appeals has said it is an abuse of discretion requiring the disclosure of Federal income tax returns if other documents can provide the information necessary.

But in order to even search out and get that information, opposing counsel is required to provide

MOTION TO COMPEL

*34 16 the relevancy and materiality that's necessary as to his claims. He has none. He hasn't presented any. He hasn't asked for any. He hasn't said a single word that shows that a tax return, a financial statement, or any of these other intrusive and burdensome matters are necessary for his claims. And the Court should deny his motions in total.

Thank you. THE COURT: When do you want to take the

depositions? MR. MEADE: Well -- MR. MOSSER: I'm sorry, Judge? THE COURT: I'm -- I'm asking your

opposing counsel when he wants to take the depositions. MR. MEADE: I knew you were going to ask that, and I think the simplest answer to that is before the Motion to Transfer Venue is heard.

THE COURT: Okay. MR. MEADE: The more complex answer is

after the week of the 21st of July because I have a trial that entire week. But we are set number one. So, we will go; and I will be done that week because it's a breach of contract case.

So, following that week, I only have one day that I have a -- I have a deposition currently set

MOTION TO COMPEL

*35 17 that I'm defending on the 28th of July. Otherwise, I am wide open to -- to take these depositions.

THE COURT: Okay. Counsel, you heard that, I assume. So, pick a date after his trial in Judge Englehart's court and not on July -- what?

MR. MEADE: 28th. THE COURT: -- 28th that you can produce

your people for depositions. MR. MOSSER: I'm looking at the calendar now, Judge. THE COURT: Okay. MR. MOSSER: I would recommend August 4th

and 5th, and I -- I would like to also add, Judge, that four of the depositions that were set, two of them -- on two separate days, two of them were set at exactly the same time. And then the next day, two more were set at exactly the same time, which I would discourage that concept as appropriate.

MR. MEADE: And -- and here would be my response. If Mr. Mosser would cooperate with me -- MR. MOSSER: But the 4th and the 5th are good with me, Judge. MR. MEADE: If Mr. Mosser would cooperate with me a little bit and let me know -- these are an individual -- two individuals and four corporate

MOTION TO COMPEL

*36 18 representatives who may be, and I suspect will be, those same individuals -- could all be taken possibly at the same time or concurrently with each other. But Mr. Mosser hasn't identified who are -- who's going to be the corporate representative. So, I don't know how else to do it.

If he will identify who will be the corporate representatives for those entities, I will notice the -- the depositions so that they don't conflict timewise with one other another.

MR. MOSSER: As you previously noticed, the doc -- the areas of inquiry, Mr. Rodriguez will be the deponent.

MR. MEADE: On all, Mr. Mosser? MR. MOSSER: Yes. MR. MEADE: Okay. Then I will -- I will

set it up so that they don't conflict with one another. MR. MOSSER: Thank you. THE COURT: Okay. So, pick, the 4th of

the 5th of August? MR. MEADE: It will be both, Your Honor. THE COURT: Oh, both. MR. MEADE: Yeah. THE COURT: Okay. All right. The

depositions are set for the 4th and the 5th. And

MOTION TO COMPEL

*37 19 Plaintiff's counsel will send notice, but they are now set. He'll send notice as to time and place, I assume, which I assume you've already -- where -- where are they going to be?

MR. MEADE: Well, as Mr. Mosser doesn't have an office here in Houston -- THE COURT: Okay. MR. MEADE: -- I'm just going to do them

at my offices here in Houston, Your Honor. THE COURT: Right. And I presume that's okay with you, Mr. Mosser? MR. MOSSER: Oh, yes, ma'am, that's fine with me. THE COURT: Okay. Now, as to fees of the nonappearance, I'm not going to order anything at this time. I will consider it later as the case progresses, depending on how discovery goes. So, I will just hold that under advisement.

What else was there? MR. MEADE: The objections, which I think

lie in the Third Motion to Compel, which are Motions to Compel the responses to discovery that ask for a variety -- it's -- it's a variety of financial information, including bank statements and -- and tax returns.

MOTION TO COMPEL

*38 20 THE COURT: Mr. Mosser, have -- does your client have the bank statements? MR. MOSSER: I'm sorry, Judge? THE COURT: Does your client have the bank

statements? MR. MOSSER: I think Mr. Holtman has them, and opposing counsel has collected everything Holtman has. And I would like the Court to order opposing counsel to deliver those documents that he got from the third-party witness Holtman to us.

THE COURT: Well, let me ask -- that -- that wasn't my question. MR. MOSSER: I understand. THE COURT: My question is: Does your

client have them? MR. MOSSER: No. I think -- I think Holtman has them all. THE COURT: So, your client didn't keep a copy? MR. MOSSER: Nobody sends out copies of bank statements any more, Judge. THE COURT: Sure they do. I get them every month. MR. MOSSER: I appreciate that, Your Honor. Let me put it a different way. Many businesses

MOTION TO COMPEL

*39 21 do not get bank statement in paper form. THE COURT: Well, do they get them electronically where they can print them out? MR. MOSSER: My understanding, Your Honor, is that Holtman has all the bank statements. THE COURT: So, your client doesn't get the e-mail saying, Your bank statement is ready to be printed out; or they can't go in and print it out?

MR. MOSSER: I haven't made that particular inquiry. THE COURT: Yeah. MR. MOSSER: Because they're with the bank

and the accountant. THE COURT: Well, my guess is your client has access to them by -- if they -- if they're not like me and they don't pay to get a paper statement or get a paper statement, they get an e-mail saying, Your bank statement is online. And you just log in, and you can print it out.

MR. MOSSER: I understand what the Court is saying, but my suggestion is that they already have all of that stuff. They got it from Holtman.

MR. MEADE: Your Honor, if I -- if I could add one -- as Your Honor may recall, they -- the Defendants fired Mr. Holtman, who is the CPA, from the

MOTION TO COMPEL

*40 22 company in March, terminated my client's access and his access to all of the bank accounts. Then -- then hired a new accountant located up in Dallas and identified him as the new CPA, to which Holtman was supposed to and did send all of the information.

As far as account statements, the -- it's an ongoing duty, in fact, and they -- they have the duty -- even if, in fact, we had gotten all of the information and -- and Mr. Mosser has just said he doesn't actually know what we've gotten. Even if had gotten all of the information, it wouldn't alleviate their responsibility to produce it, too, because, for example, we might be missing a page of a bank statement. We might want to use a 173, you know, authentication means for the documents.

But there are certainly post termination of Mr. Holtman, zero financial records that we have access to but that the Defendants have access, custody, and control over those documents exclusively; and that's what we're asking for.

THE COURT: Okay. So -- MR. MEADE: Their current accountant has

all of it, and they have all of it. THE COURT: All right. MR. MOSSER: Well, we don't really know

MOTION TO COMPEL

*41 23 that. THE COURT: Well, I'm going to overrule your objections and tell you to produce it if it's available to you.

MR. MOSSER: From the time that Holtman was terminated? Because they already have everything else.

THE COURT: No. Just from what they've requested. MR. MOSSER: And will you order them to deliver us what Holtman has? MR. MEADE: I don't need to be ordered to, Your Honor. I will -- I haven't had him even ask me. If you send me a letter asking for it --

THE COURT: Well, he's asking now. Send it to him. MR. MEADE: I'll send it to him, Your Honor. THE COURT: Yeah. I'm not going to order him, but he -- he said on the record now he's going to send you copies of it.

MR. MEADE: Well, in fact, if it's easiest, I will upload it onto FPT link; and you can download it from your computer today.

THE COURT: You want to do that, Counsel?

MOTION TO COMPEL

*42 24 MR. MOSSER: Which kind of link? THE COURT: I don't know. It's over my

head. MR. MEADE: I will suggest a couple of means by which I can deliver the documents to you, Mr. Mosser.

THE COURT: He will -- he will get them to you. MR. MEADE: You can choose the most convenient means to you. THE COURT: Okay. On the -- I've looked at the interrogatories, your objections are overruled. What else have we got? MR. MEADE: The requests for production

objections that were -- THE COURT: Yeah, and they're overruled, also. Anything else? MR. MEADE: And -- nothing else unless

Your Honor -- and I -- and from what Your Honor said earlier, I think you're not inclined to appoint a master at this --

THE COURT: I'm not. MR. MEADE: -- point in the discovery.

So, I won't -- *43 Motion to Compel 25 THE COURT: And we will reset -- MR. MEADE: -- belabor the point. THE COURT: -- the motion for change of

venue until after the deposition. MR. MEADE: Thank you, Your Honor. Nothing else today. THE COURT: Anything else? MR. MOSSER: No, Your Honor. THE COURT: Counsel, I hope you feel

better. I know -- MR. MOSSER: Thank you very much, Judge. THE COURT: I know how it feels to get

older, but... MR. MOSSER: I appreciate it, Judge. THE COURT: Okay. Thank you. MR. MOSSER: Yes, ma'am. MR. MEADE: Thank you. Have a good week,

Your Honor. THE COURT: Thank you. (Proceedings concluded.)

*44 Motion to Compel 26 STATE OF TEXAS COUNTY OF HARRIS

I, DARLENE STEIN, Official Court Reporter in and for the 133rd District Court of Harris, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties.

I further certify that the total cost for the preparation of this Reporter's Record is $312.00 and was paid by Mr. Andrew Meade. /s/Darlene Stein_________

DARLENE STEIN, CSR

Texas CSR 2557 Official Court Reporter 133rd District Court Harris County, Texas 201 Caroline, 11th Floor Houston, Texas 77002 Telephone: (713) 368-6402 Expiration: 12/31/2014

*45 From:MOSSER HILL PLLC 8172 267 5072 07/12/2014 10:39 1235 P.001/001 1 '11 n DALLAS PARKWAY, SLTTfE 29() • D:\LLAS, TEXA.S :.)2.'18 • 9':::-- 33-3223 • FAX ~P2-26"7 -)(Y-;2

1\IOSSERLAW.COM

July 12, 2014

Via Facsimlile: 832-476-5460 Kelly Stephens P.O. Box 79734 Houston, Texas 77279 RE: Los Cucos VIII, Inc. Et al., v. B650 Frisco LLC, et al. Dear Mr. Stephens: Apparently my prior letter was too subtle, I will try to be more blunt. There is no "currently scheduled August 1, 2014 inspection" because you have failed to serve a proper request pursuant to the rules. We have never been served with an order from the court to produce documents. To the extent our objections were overruled, you are in possession of the responsive documents I will not withdraw my objection to your improper subpoena. To the extent Mr. Verucchi has documents, you have those documents in your possession. Respectfully, MoSSER LA.W PLLC~ /s/ Nicholas D. Mosser Nicholas D. Mosser

Exhibit B Page 35 Exhibit 2 *46 611112014 2:07:32 PM Chris Daniel -District Clerk Harris County Envelope No: 1510270 By: ARRIAGA, AMANDA R

Cause No. 2014-10896 IN THE DISTRICT COURT OF f2 LOS CUCOS MEXICAN CAFE VIII, § fNC.; LOS CUCOS MEXICAN CAFE IV, § 1 STP~)' fNC.; MANUEL CABRERA; AND § SERGIO CABRERA, § (lfA.D)(

§ Plaintiffs, § § v. § §

8650 FRISCO, LLC D/B/A ESTILO § § GAUCHO BRAZILIAN STEAKHOUSE; MANDONA, LLC; GALOVELHO, LLC; § BAHTCHE, LLC; CLAUDIO NUNES; and § DAVID JEIEL RODRIGUES, §

§ Defendants. § 133rd JUDICIAL DISTRICT ORDER ON DEFENDANTS' MOTd~TO STAY ALL MATTERS ~~ PLAINTIFFS' THII~>TION TO COMPEL 0 The Court, having considered !®fendants' Motion to Stay All Matters and Plaintiffs' oQ Third Motion to Compel and th~tive responses, arguments of counsel, and evidence, has determined that Defendants' ~on should be and is hereby DENIED and that Plaintiffs' motion should be and is hereby G~ED. Specifically:

The Court DE~gefendants' request to stay all matters. The Cou!J ~~y OVERRULES Defendants' objections to Plaintiffs' Requests for

. Production No,2, 3, 4, 5, 7, and 8. IT IS ORDERED that Defendants shall produce all

~ document~onsive to Requests for Production Nos. 1, 2, 3, 4, 5, 7, and 8 within 24 hours of the entry of this order.

Th~om t Fllq!JS that Defeudams' co,msernasahused the discovery_pr~'Sis_fiil:g l'(oM:;it;A-';-enr-:ln~ermmea that the followillg sanctions are appropriate~ satisfy the legitimate- Exhibit B Page 36 Exhibit 3 *47 ~I 1 A purposes of discovery sanctions, and are nenher more ^[1101] less stringent than nece:.:.ary to-. 11\j-/ '-- aceef!!plishjtT7}Se purpes&.-

AcsorQ_ingly, IT IS ORDERED that all---eXpenses of dtscovery assocmtecrwith th~ ooderlying motiotnl1101fie deposition of each of the Defenda"""fitrin aecordance with this oreer an:~ e MOSSER l.AW fiRM shall pay to~~ within I 0 days of the sig11iflg ei.th.iuJrder. ~ (J

$

·rr- IS FURTHER ORDERED that the fullo"i"g fucts a~ABL!SHBD fi5r1rtl---... I'm poses in thiS hbgatwn: that Defendants havo <on"oted to ven;~arris Coun~s. - IT IS FURTHER ORDERED that failure to compl;~Q this Order may result in the further imposition of sanctions or a holding of contempt, ~hable by fin~ or imprisonment or - both. ;{J__o_ c\~ ~ &~MJ!~r:J1/r

v---1' o.* t;:cop.JU . o ~ DATED: 1-- J- <(- d!J)J/ a

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0~ ~ ~g ~ *48 3/30/2015 4 07 31 PM Chr1s Damel - D1stnct Clerk Hams County Envelope No 4698208 By GENTRY, EUNIECY M Fsled 3/30/2015 4 07 31 PM

CAUSE NO 2014-10896

LOS CUCOS MEXICAN CAFE VIII, § IN THE DIS1 RICT COURT OF INC , LOS CUCOS MEXICAN §

~ jj)x CAFE IV, INC , MANUEL § CABRERA, and SERGIO §

* aPtPK CABRERA, § Plflmtiffs ~ ~

v § ~=~r#i § HARRIS COUN ^[1] ~XAS 8650 FRISCO, LLC D/B/A ESTILO ~ ~ # GAUCHO BRAZILIAN § STEAKHOUSE, MANDONA, LLC, § GALOVELHO, LLC, BAH1 CIIE, §

Q~ LLC, CLAUDIO NUNES, and § DA VJD JEIEL RODRIGUES, §

133r~DICIAL DISTRICT DefendalltY § OROER GRANTING IN J> ART A INGINPART

PLAINTIFFS' MOTION TO ENFOR

0~ On thts dav the Court came to constder pJ.il~~ffs Sec.ond Mohon to Enforce the Court'& ~~ - Order and for Sandton~ (lhe "Mot.Ion") ~Y cons1denng lhe facts, law, and argument of <..ounscl, the Court has dec1ded to grant ~~otlontn part and deny the Mohon m pmt

Defendant!:. are ordered to ~e all documents tdenttfied m the CoUtt's July 28, 2014 Order on Detendant~ MottonJRGay All Mattml> and Plamhffs' Il11rd Matton to Compel lhts p10dm.tton must be made~lo p m on Wednesday, Apttl 1, 2015 to both Sam Haten and

~ U

Kelly Stephen::,

oW Plmnt1f~~Dcfendants' request; ~or sancuons dlC dcmed s:~J~ilieL-day or~ ~~

Exhibit B Page 38 Exhibit 4

CAUSE NO 2014-10896

*49 IN THE DISTRICT COURT OF f,Z - LOS CUCOS MEXICAN CAFE Vill, § INC , LOS CUCOS MEXICAN § CAFE IV, INC , MANUEL §

cf Mr£u=x * /tTFE)( CABRERA, and SERGIO § CABRERA, § §

Plamtiffs ~ (}

§

v § § HARRIS CO~, TEXAS ""' ~ 9 0~ 8650 FRISCO, LLC D/B/A ESTILO § ~ CP GAUCHO BRAZILIAN § 0~ STEAKHOUSE, MANDONA, LLC, §

«:::}~ GALOVELHO, LLC, BAHTCHE, § LLC, CLAUDIO NUNES, and §

~ ^[0] DAVID JEIEL RODRIGUES, § 0~ ~ Ul~ JUDICIAL DISTRICT& Defendants § ftj(9}

Order Grantm

~0. Thrs productron must be ~hrough hand delivery dunng normal busmess hours to Andrew

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Exhibit B Page 39 Exhibit 5

orders or with Texas law, and another warnmg IS unlikely to achieve better results Moreover,

*50 another warnmg would only encourage Defendants to contmue their egregwus behaviOr m the future

Accordmgly, the Court ltnposes the followrng sanctiOns * • Defendants may not conduct additional discovery m this matter u~~representattve of 8650 Fnsco, LLC stgns a sworn affidavit of compliance wtth ~~rder, • Defendants shall pay $ i V()V, f30

to Plamtlffs fot; ~ costs mcurred m secunng productiOn of the. ocuments, and ~ the Issue of whether Plamtrffs face Irreparable harm ~~e lack of the note/secunty

• requrred by the parties' contract IS conclusively es~Yed m Plarntiffs' favor 0~ Should Defendants fall to comply w1th this order w~ forty~eight hours of the stgnature

WJ

hereof, Defendants and their attorneys of record wtl~ asked to personally appear and show cause as to why they should not be held m cont~~th1s Court

~ru Signed on the _Jj_ day of 4f:rt?J<f!2 , 2015 a~

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o~ry; ~0 ~ ~ 2 *51 HAWASHM EA DE Samuel B. Haren sharen@hmgnc.com HAW ASH MEADE GASTON NEESE & CICACK LLP 713-658-9001 (phone) 713-658-9011 (fax) April30, 2015 Via Facsimile : (469) 626-1073 Mr. James C. Mosser Mr. Nicholas D. Mosser Mosser Law PLLC 17110 Dallas Parkway, Suite 290 Dallas, Texas 75248

Re: Cause No. 2014-10896, Los Cucos Mexican Cafe VIII, Inc. et al. v. 8650 Frisco, LLC et al. in the 133rd Judicial District Court of Ranis County, Texas Dear Mr. Mosser: As you aware, the Comt granted Plaintiffs' Third Motion to Enforce the Court's Order and For Sanctions on April 27, 2015. In so doing, the Comt ordered you and your client to (1) hand-deliver the requested documents to the offices ofHawash Meade Gaston Neese & Cicack LLP and (2) pay a $1,000 sanction to Plaintiffs. The Comt fmther ordered that, "should Defendants fail to comply with this order within forty-eight hours of the signature hereof, Defendants and their attorneys of record will be asked to personally appear and show cause as to why they should not be held in contempt ofthis Court."

As of the transmission hereof, neither the document production nor the monetary sanction have been received. If we have not received the documents and payment by noon on Monday, May 4, 2015, we will be forced to file a fomth motion to enforce the Court's order and seek additional sanctions.

Yours truly, 2118 Smith Street ^[1] Houston, Texas 77002 Main Phone: (713) 658-9001 I Main Facsimile: (713) 658-9011 www. hmgll p . com Exhibit B Page 41 Exhibit 6 *52 M OSSER L AW PLLC 2805 D ALLAS P ARKWAY , S UITE 222 • PLANO, T EXAS 75093 • 972-733-3223 • F AX : 469-626-1073 M OSSER L AW . COM May 1, 2015

Via eFile Kelly Stephens P.O. Box 79734 Houston, Texas 77279 Telephone: 1-281-394-3287 Facsimile: 1-832-476-5460 kstephens@stephensdominitz.com RE: Los Cucos VIII, Inc. Et al., v. 8650 Frisco LLC, et al. Dear Mr. Stephens: We are in receipt of Mr. Haren’s letter dated April 30, 2015. W e have been served no signed orders of any court requiring date certain compliance or any other required action. Respectfully, M OSSER L AW PLLC /s/ Nicholas D. Mosser Nicholas D. Mosser Exhibit B Page 42

Exhibit 7 *53 HAWASH MEADE Samuel B. Haren sharen@hmgnc.com HAWASH MEADE GASTON NEESE & CJCACK LLP 713-658-9001 (phone) 713-658-9011 (fax) May 3, 2015 Via Facsimile: (469) 626-1073 Mr. James C. Mosser Mr. Nicholas D. Mosser Mosser Law PLLC 17110 Dallas Parkway, Suite 290 Dallas, Texas 75248

_;'_ff ~-H-a-re_n _ _ _

2118 Smith Street I Houston, Texas 77002 Main Phone: (713) 658-9001 I Main Facsimile: (713) 658-9011 www. hmg II p.com Exhibit B Page 43 Exhibit 8

CAUSE NO 2014-10896

*54 IN THE DISTRICT COURT OF f,Z - LOS CUCOS MEXICAN CAFE Vill, § INC , LOS CUCOS MEXICAN § CAFE IV, INC , MANUEL §

cf Mr£u=x * /tTFE)( CABRERA, and SERGIO § CABRERA, § §

Plamtiffs ~ (}

§

v § § HARRIS CO~, TEXAS ""' ~ 9 0~ 8650 FRISCO, LLC D/B/A ESTILO § ~ CP GAUCHO BRAZILIAN § 0~ STEAKHOUSE, MANDONA, LLC, §

«:::}~ GALOVELHO, LLC, BAHTCHE, § LLC, CLAUDIO NUNES, and §

~ ^[0] DAVID JEIEL RODRIGUES, § 0~ ~ Ul~ JUDICIAL DISTRICT& Defendants § ftj(9}

Order Grantm

~0. Thrs productron must be ~hrough hand delivery dunng normal busmess hours to Andrew

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Accordmgly, the Court ltnposes the followrng sanctiOns * • Defendants may not conduct additional discovery m this matter u~~representattve of 8650 Fnsco, LLC stgns a sworn affidavit of compliance wtth ~~rder, • Defendants shall pay $ i V()V, f30

to Plamtlffs fot; ~ costs mcurred m secunng productiOn of the. ocuments, and ~ the Issue of whether Plamtrffs face Irreparable harm ~~e lack of the note/secunty

• requrred by the parties' contract IS conclusively es~Yed m Plarntiffs' favor 0~ Should Defendants fall to comply w1th this order w~ forty~eight hours of the stgnature

WJ

hereof, Defendants and their attorneys of record wtl~ asked to personally appear and show cause as to why they should not be held m cont~~th1s Court

~ru Signed on the _Jj_ day of 4f:rt?J<f!2 , 2015 a~

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o~ry; ~0 ~ ~ 2 *56 Cause No. 2014-10896 Los Cucos Mexican Cafe VIII, Inc.; In the District Court of Los Cucos Mexican Cafe IV, Inc.; Manuel Cabrera; and Sergio Cabrera, Plaintiffs v. Harris County, Texas 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse; Mandona, LLC; Galovelho, LLC; Bahtche, LLC; Claudio Nunes; and David Jeiel Rodrigues, 133rd Judicial District Defendant

Notice of Hearing Please be advised that the Court will hold an oral hearing on Plaintiffs’ Fourth Motion to Enforce the Court’s Order and for Sanctions on Monday, May 18, 2015, at 3:00 p.m ., in the 133 rd Judicial District Court of Harris County, Texas.

Respectfully submitted, Hawash Meade Gaston Neese & Cicack LLP /s/ Samuel B. Haren Andrew K. Meade State Bar No. 24032854 Jeremy M. Masten State Bar No. 24083454 Samuel B. Haren State Bar No. 24059899 2118 Smith Street Houston, Texas 77002 713-658-9001 (phone) 713-658-9011 (fax) ameade@hmgnc.com jmasten@hmgnc.com sharen@hmgnc.com *57 Stephens & Domnitz, PLLC Kelly D. Stephens State Bar No. 19158300 P.O. Box 79734 Houston, Texas 77279-9734 281-394-3287 (phone) 832-476-5460 (fax) kstephens@stephensdomnitz.com Cox Smith Matthews Incorporated David Kinder State Bar No. 11432550 112 East Pecan Street, Suite 1800 San Antonio, Texas 78205 210-554-5500 (phone) 210-226-8395 (fax) Attorneys for Plaintiffs

2 *58 Certificate of Service A true and correct copy of the foregoing has been served on all counsel of record via electronic service on May 4, 2015. James C. Mosser Nicholas D. Mosser Mosser Law PLLC 17110 Dallas Pky, Suite 290 Dallas, Texas 75248

/s/ Samuel B. Haren Samuel B. Haren

3 *59 Cause No. 2014-10896 Los Cucos Mexican Cafe VIII, Inc.; In the District Court of Los Cucos Mexican Cafe IV, Inc.; Manuel Cabrera; and Sergio Cabrera, Plaintiffs v. Harris County, Texas 8650 Frisco, LLC d/b/a Estilo Gaucho Brazilian Steakhouse; Mandona, LLC; Galovelho, LLC; Bahtche, LLC; Claudio Nunes; and David Jeiel Rodrigues, 133rd Judicial District Defendant

Order Granting Plaintiffs’ Fourth Motion To Enforce The Court’s Order On this day the Court came to consider Plaintiffs’ Fourth Motion to Enforce the Court’s Order (the “Motion”). After considering the facts, law, and argument of counsel, the Court has decided to GRANT the Motion.

The Court finds that  Defendants and their counsel have wasted substantial amounts of the Court’s and

Plaintiffs’ time by filing frivolous motions, making bad-faith arguments, and feigning ignorance of basic factual and legal issues;

 Defendants and their counsel have violated their discovery obligations by lodging frivolous objections, making inadequate productions, refusing to comply with the Court’s orders, and asking third parties to destroy evidence;

 Defendants’ counsel has acted unprofessionally to the Court, the Court’s staff, and Plaintiffs’ counsel throughout this litigation;  Defendants have failed or refused to comply with four prior orders from this Court; and *60  Defendants did not comply with this Court’s order even after sanctions were entered

and a show cause order was threatened. The Court hereby imposes the following sanctions:  Defendants shall pay a sanction of $_________ to Plaintiffs. This sanction is based on

the reasonable and necessary attorneys’ fees incurred by Plaintiffs in attempting to secure production of the documents Defendants have failed to produce. This sanction is to be paid by cashier’s check to Hawash Meade Gaston Neese & Cicack LLP’s IOLTA Account. The check shall be hand-delivered to the offices of Hawash Meade Gaston Neese & Cicack LLP during normal business hours within forty-eight hours of the entry of this order.

 James Mosser, Nicholas Mosser, Claudio Nunes, and David Jeiel Rodrigues shall appear in this Court on the ____ day of _____________________, 2015 at __:____ __.m. and show cause as to why they should not be held in contempt.

 Defendants shall not be entitled to conduct or participate in any further discovery in this case. This order does not replace or supplant the Court’s April 27, 2015 Order Granting Plaintiffs’ Third Motion to Enforce the Court’s Order. All sanctions and required imposed therein remain in force.

Signed at __:____ __.m. on the _____ day of _______________________, 2015. Judge Presiding 2