*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 5/12/2015 11:14:29 AM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00423-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 5/12/2015 11:14:29 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 SUPPLEMENTAL RECORD AND ARGUMENT FOR PETITION FOR

WRIT OF MANDAMUS M OSSER L AW PLLC

James C. Mosser

Texas Bar No. 00789784

Nicholas D. Mosser

Texas Bar No. 24075405

Paul J. Downey

Texas Bar No. 24080659

2805 Dallas Parkway, Suite 220

Plano, Texas 75093

Tel. (972) 733-3223

Fax (469) 626-1073

courtdocuments@mosserlaw.com

LAWYERS FOR RELATORS

RELATORS REQUEST ORAL ARGUMENT RELATORS REQUEST TEMPORARY RELIEF i *2 TABLE OF CONTENTS TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

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

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

SUPPLEMENTAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

SUPPLEMENTAL APPENDIX AND RECORD. . . . . . . . . . . . . . . . . . . . . . 8

ii *3 INDEX OF AUTHORITIES CASES

American Apparel Products, Inc. v. Brabs, Inc. 880 S.W.2d 267, 269

(Tex.App.–Houston [14 th Dist.] 1994, no writ). . . . . . . . . . . . . . . . . . . . . 2, 3

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

[1 st Dist] 2009, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Guzman v. Acuna, 653 S.W.2d 315, 318-19 (Tex.App.–San Antonio 1983,

writ dism’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Henderson v. KRTS, Inc., 822 S.W.2d 769, 773 (Tex.App.–Houston [1 st

Dist.] 1992, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Horton v. Robinson, 776 S.W.2d 260, 267 (Tex.App.–El Paso 1989, no

writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Humphrey v. Camelot Ret. Cmty., 893 S.W.2d 55, 59 (Tex.App–Corpus

Christi 1994, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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

2013)(original proceeding). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Low. v. Henry, 221 S.W.3d 609, 612 (Tex.2007). . . . . . . . . . . . . . . . . . . . 4

iii *4 SUPPLEMENTAL STATEMENT OF FACTS 1. Three days after filing their Second Motion to Enforce the Court’s

Order and for Sanctions, The Real Parties in Interest filed their

Supplement to Plaintiffs’ Fourth Amended Petition. App. at 445-46.

SUPPLEMENTAL ARGUMENT T HE R EQUESTED D ISCOVERY R EMAINS I RRELEVANT TO R EAL P ARTIES ’ S OLE

C LAIM FOR R ELIEF 2. The issue of whether the Real Parties in Interest face “irreparable

harm from the lack of the note/security (sic) required by the parties’

contract” is not an element of a breach of contract suit, and thus

remains irrelevant to this suit. 3. As stated in the Original Petition for Writ of Mandamus, the only

claim for relief before the trial court is a breach of contract claim

stemming from the August 5, 2014, settlement agreement. App. at

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

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

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

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

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

[1 st Dist] 2009, pet. denied). 5. To be entitled to specific performance, the plaintiff must show that it

does not have an adequate remedy at law for damages, and that

damages would be inadequate compensation. American Apparel Products, Inc. v. Brabs, Inc. 880 S.W.2d 267, 269 (Tex.App.–Houston [14 th Dist.] 1994, no writ)( citing Nash v. Conatser, 410 S.W.2d 512, 520 (Tex.Civ.App.–Dallas 1966, no

writ))(“Generally, contracts concerning personal property will not be

specifically enforced unless a remedy at law is inadequate.”); See

also Horton v. Robinson, 776 S.W.2d 260, 267 (Tex.App.–El Paso 1989, no writ). 6. The Real Parties in interest claim that “Defendants’ refusal to

execute a promissory note, settlement agreement, and other security

agreements would constitute an irreparable harm by exposing

Plaintiffs to a credit risk they specifically contracted to avoid.” App. at

445. Unfortunately for the Real Parties in Interest, this issue does not

speak to whether damages are an adequate remedy at law. See

American Apparel Products, Inc. v. Brabs, Inc. 880 S.W.2d at 269. In

fact, the supplemental pleading of the Real Parties in Interest states

that they only seek specific performance if damages cannot be

awarded. App. at 445. This completely undermines the attempt to

plead specific performance, since a party that cannot establish a

breach of contract for the purposes of monetary damages cannot

establish a breach of contract for the purpose of specific

performance. See Guzman v. Acuna, 653 S.W.2d 315, 318-19 (Tex.App.–San Antonio 1983, writ dism’d)(“Greater certainty

respecting the terms and conditions of a contract sought to be

enforced is required in equity than at law”). 7. “Irreparable Harm” is an element of injunctive relief, but no such relief

appears to be sought in this case. See Henderson v. KRTS, Inc., 822 S.W.2d 769, 773 (Tex.App.–Houston [1 st Dist.] 1992, no writ). In any

event, Los Cucos would still have to plead sufficient facts to establish

that there is no adequate remedy at law, which it has failed to do.

See id. Thus, Los Cucos may have attempted to plead specific

performance, but has confused its pleading requirements with those

of a suit seeking injunctive relief. See id; see also American Apparel Products, Inc. v. Brabs, Inc. 880 S.W.2d at 269. *7 8. Texas follows a “fair notice” standard for pleading, in which courts

assess the sufficiency of the pleadings by determining whether an

opposing party can ascertain from the pleading the nature, basic

issues, and type of evidence that might be relevant to the

controversy. Low. v. Henry, 221 S.W.3d 609, 612 (Tex.2007).

Because it cannot be readily determined whether the plaintiff seeks

specific performance or injunctive relief, the Respondent could not

have been in a position to rule on the “types of evidence that might

be relevant to the controversy.” See id. 8650 Frisco, LLC, brought

this argument to the Respondent’s attention, but to no avail. App. at

436-37. 9. The irrelevance of the documents sought by Los Cucos is

underscored by the fact that Los Cucos filed its Second Motion to

Enforce the Court’s Order “to assess Defendants’ compliance with

their settlement obligations” when it did not need these documents to

enter into the settlement agreement in the first place. Compare App.

at 114 with App. at 95-99, 339-340. Perhaps if the Real Parties in Interest were seeking to rescind the Settlement Agreement based on

8650 Frisco’s inability to perform, the financial information would be *8 relevant to that inability. See Humphrey v. Camelot Ret. Cmty., 893

S.W.2d 55, 59 (Tex.App–Corpus Christi 1994, no writ). The Real

Parties in Interest have pleaded something else entirely. They seek

damages or the means to compel 8650 Frisco to bind itself to a

contract for which a future breach can be remedied with damages.

See App at 445. 10. Thus, the proffered reason for the need for discovery, “to assess

Defendants’ compliance with their settlement obligations” simply

does not relate to any of the elements of a breach of contract suit,

and thus discovery on this basis is not reasonably calculated to lead

to any admissible evidence that tend to prove or disprove any facts of

consequence. Compare App. at 114 with App. at 95-99, 339-340; In re BDPJ Houston, LLC, 420 S.W.3d 309 (Tex.App–Houston [14 th

Dist.] 2013)(original proceeding).

P RAYER WHEREFORE, PREMISES CONSIDERED, Relators pray that this court

find that Respondent abused her discretion in compelling production of the

documents requested by the Real Parties in Interest and imposing

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

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

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

compelling discovery and imposing sanctions.

Respectfully Submitted, 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

Mosser Law, PLLC

2805 Dallas Parkway Suite 222

Plano, Texas 75093

Telephone 972-733-3223

Facsimile 469-626-1073

courtdocuments@mosserlaw.com

LAWYERS FOR DEFENDANTS 8650 F RISCO , LLC, D / B / A 8650 F RISCO , LLC B RAZILIAN S TEAKHOUSE ; M ANDONA , LLC; G ALOVELHO , LLC; B AHTCHE ,

LLC; C LAUDIO N UNES ; AND D AVID J EIEL R ODRIGUES

CERTIFICATION I certify that I have reviewed the petition and conclude that every factual

statement in the petition is supported by competent evidence included in

the attached appendix or record and I certify that the documents attached

in the appendix are true and correct copies of the originals.

/s/ Paul J. Downey

Paul J. Downey

CERTIFICATE OF COMPLIANCE I certify that there are 940 words in this supplemental document which,

when taken in conjunction with the 4907 words in the Original Petition for

Writ of Mandamus, brings the total to 5847 words between both

documents. I relied on the word count function of WordPerfect X6, which

was used to prepare this document.

/s/ Paul J. Downey

Paul J. Downey

CERTIFICATE OF SERVICE I certify that on May 12, 2015, this document was served on the

following parties or counsel of records in accordance with Texas Rule of

Appellate Procedure 9.5:

Respondent

Honorable Jaclanel McFarland

Judge Presiding

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

Kelly Stephens

Texas Bar No. 19158300

P.O Box 79734

Houston, Texas 77279-9734

Tel. 281-394-3287

Fax 832-476-5460

kstephens@stephensdominitz.com

*11 /s/ Paul J. Downey

Paul J. Downey

CAUSE NO. 2014-10896 LOS CUCOS MEXICAN CAFÉ VIII, § IN THE DISTRICT COURT

INC., LOS CUCOS MEXICAN §

CAFÉ IV, INC., MANUEL §

CABRERA, and SERGIO §

CABRERA §

PLAINTIFFS, §

§ V. § 133rd JUDICIAL DISTRICT

§ 8650 FRISCO LLC, MANDONA §

LLC, GALOVELHO LLC, §

BAHTCHE LLC, CLAUDIO §

NUNES, AND DAVID JEIEL §

RODRIGUES §

DEFENDANT. § OF HARRIS COUNTY, TEXAS

SUPPLEMENTAL APPENDIX AND RECORD TABLE OF CONTENTS Exhibit AA - Supplement to Plaintiff’s Fourth Amended Petition. . App. 445

CAUSE NO. 2014-10896 LOS CUCOS MEXICAN CAFE VIII, § IN THE DISTRICT COURT §

INC., LOS CUCOS MEXICAN § CAFE IV, INC., MANUEL § CABRERA, and SERGIO § CABRERA § PLAINTIFFS,

§ § 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 custodians of the records at Mosser Law, PLLC.

4. Attached hereto are the following 3 pages of records from Mosser

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

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

business of Mosser Law, PLLC, that an employee or representative of Mosser Law PLLC, with knowledge of the act or event recorded,

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

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

contain:

a. Exhibit AA- Supplement to Plaintiff's Fourth Amended Petition; 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 12th Day of May, 2015. *15 2/23/2015 8:37:36 PM

Chris Daniel - District Clerk Harris County Envelope No. 4254256 By: JIMMY RODRIGUEZ Filed: 2/23/2015 8:37:36 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

Harris County, Texas 8650 Frisco, LLC d/b/a Estilo Gaucho

Brazilian Steakhouse; Mandona,

LLC; Galovelho, LLC; Bahtche,

LLC; Claudio Nunes; and David Jeiel

Rodrigues,

Defendants 133rd Judicial District

Supplement to Plaintiffs’ Fourth Amended Petition 1. Plaintiffs file this Supplement to Plaintiffs’ Fourth Amended Petition (the

“Supplement”) to clarify the relief requested in Plaintiffs’ Fourth Amended Petition (the

“Petition”). The Supplement does not replace the Petition.

2. Plaintiffs believe that the Petition gives fair notice of Plaintiffs’ need and request for specific performance of the Rule 11 settlement agreement. See Stafford v. S. Vanity

Magazine, Inc. , 231 S.W.3d 530, 535 (Tex. App.—Dallas 2007, pet. denied).

3. Out of an abundance of caution, Plaintiffs hereby expressly plead that, in the event damages are not awarded in this action, (1) Defendants’ refusal to execute a promissory

note, settlement agreement, and other security agreements would constitute an irreparable harm

by exposing Plaintiffs to a credit risk they specifically contracted to avoid and (2) Plaintiffs

respectfully request that the Court order specific performance of Defendants’ obligations under

the Rule 11 settlement agreement, including, without limitation, the execution of a promissory

note, a settlement agreement, and a dismissal of its pending claim for declaratory relief. Exhibit AA App. 445

Respectfully submitted, Stephens & Domnitz, PLLC /s/ Kelly D. Stephens Kelly D. Stephens State Bar No. 19158300 P.O. Box 79734 2118 Smith Street Houston, Texas 77279-9734 281-394-3287 (phone) 832-476-5460 (fax) kstephens@stephensdomnitz.com Hawash Meade Gaston Neese & Cicack LLP Andrew K. Meade State Bar No. 24032854 Jeremy M. Masten State Bar No. 24083454 Samuel B. Haren State Bar No. 24059899 2118 Smith Street Houston, Texas 77002 713-658-9001 (phone) 713-658-9011 (fax) ameade@hmgnc.com jmasten@hmgnc.com sharen@hmgnc.com Cox Smith Matthews Incorporated David Kinder State Bar No. 11432550 112 East Pecan Street, Suite 1800 San Antonio, Texas 78205 210-554-4400 (phone) 210-226-8395 (fax) dkinder@coxsmith.com Attorneys for Plaintiffs 2

Exhibit AA App. 446

Certificate of Service A true and correct copy of the foregoing has been served on all counsel of record via

electronic service on February 23, 2015.

James C. Mosser

Nicholas D. Mosser

Mosser Law PLLC

17110 Dallas Pky, Suite 290

Dallas, Texas 75248

/s/ Samuel B. Haren Samuel B. Haren 3

Exhibit AA App. 447