R:\13598.000 l\pleadings\mtns&ords\mtn exped disc.docx

CAUSE NO. 2014-CI-18038 STEPHEN KRAFT INDIVIDUALLY AND § IN THE DISTRICT COURT OF AS A MEMBER ON BEHALF OF § GRUPO HABANERO, LLC § Plaintiffs § § 

## vs. § 225 1 h JUDICIAL DISTRICT 

### § GARY HODGE AND ROBERT HART III § Defendants § BEXAR COUNTY, TEXAS PLAINTIFFS' MOTION FOREXPEDITED DISCOVERY NOW COMES STEPHEN KRAFT, Individually and as a member on behalf of GRUPO HABANERO, LLC ("Plaintiffs") and files this their Motion for Expedited Discovery and would show unto the court as follows: I. Plaintiffs have filed suit against the Defendants GARY HODGE and ROBERT HART III for breach ofthe employment contract of Stephen Kraft and breach oftheir fiduciary duties to Grupo Habanera LLC in taking actions to freeze out a minority member by oppressive conduct, including refusing Plaintiff Stephen Kraft access to the financial documents ofthe company, to which he is entitled by law. II. Defendantshave recently filed a Motionto Abate and CompelArbitrationinthis casebased upon section 3.4(e) ofthe employment agreement withPlaintiffStephenKraft. See "ExhibitA" to Plaintiffs' Original Petition. Forgetting for the moment that the arbitration clause is very narrow, andPlaintiffs' claims for breach ofcontract and breach offiduciary duty are well outside its scope, its' application is entirely dependent on a set ofcircumstances that never occurred.

### In order to be effective, Defendants must first have properly exercised the repurchase optionbyprovidingnotice and closing the sale withinthhiy (30) days ofthetermination ofPlaintiff Stephen Kraft's employment. Notice could only have been given by serving the exercise ofthe option in writing eitherpersonallyto PlaintiffStephen Kraft orby sending the notice U.S. cetiified mail return receipt requested to Plaintiff Stephen Kraft's correct address, neither of which occmTed. See "Exhibit A" to Plaintiffs' Original Petition section 6.1. As Defendants are claiming that they did properly serve notice, Plaintiffs need to conduct discovery on this crucial issue prior to any evidentiary hearing on the Defendants' Motion to Compel Arbitration, including written discovery and taking the depositions ofthe Defendants. As Defendants have indicated that they intend to set their Motion to Compel Arbitration before any discovery has been conducted, Plaintiffs would ask that the court modify the discovery rules under TEX. R. OF 

### Crv. PRo. 191, to require thatDefendants answer Plaintiffs' discoveryrequests attached hereto as "ExhibitA" within 14 days and at leastthree days priorto any evidentiary hearing on Defendants' Motion To Compel Arbitration. In the alternative, Plaintiffs request that the Motion to Compel Arbitration not be set until Plaintiffs' discovery has been answered in the normal course of time and Plaintiffs and Defendants have agreed upon a setting date. 

### III. WHEREFORE PREMISES CONSIDERED Plaintiffs STEPHEN KRAFT, Individually and as a member on behalfofGRUPO HABANERO, LLC pray that this comi grant their motion for expedited discovery and require thatDefendants answer Plaintiffs' discovery requests attached hereto as "Exhibit A" within 14 days of the Comi's order and at least ten days prior to any evidentiaryhearing onDefendants' Motionto Compel Arbitration. Inthe alternative Plaintiffspray that Defendants' Motion to Compel Arbitration not be set until Plaintiffs' discovery has beenanswered in the normal course. oftime and Plaintiffs and Defendants have agreed upon a setting date and for such other further reliefto which Plaintiffs may showthemselvesjustly entitled. Respectfully submitted, EsPEY & AssociATEs, PC 13750 San Pedro Avenue, Suite 730 San Antonio, Texas 78232 Telephone: (210) 404-0333 Telecopier: (210)**4IT~-0336** /**c'__.,.~** By:

### S~/

--------------------------------- RICHARD W. ESPEY State BarNo. 06667580 respey(a)lawespey.com MATTHEWB. SOLIDAY State BarNo. 24079367 msoliday(W,lawespey.com

ATTORNEYS FOR PLAINTIFFS, STEPHEN KRAFT, lNDIVIDUALLY AND AS A MEMBER ON BEHALF OF GRUPO HABANERO, LLC CERTIFICATE OF SERVICE I hereby certify that a true and conect copy of the foregoing document was served in compliance with Rules 21 and 21a ofthe Texas Rules ofCivil Procedure on December 8, 2014, on the following counsel ofrecord:

Roderick J. 'Rod' Regan Branscomb 

## IPC 711 Navarro, Suite 500 San Antonio TX 78401-0036 210.598.5405 Facsimile Attorneys for Defendants

RICHARD W. ESPEY MATTHEW B. SOLIDAY