Motion for No Evidence Summary Judgment in LA ENERGIA NORTENA, LLC, et al vs. MOISES CUEVAS| Trellis.Law

On February 16, 2021 a Motion,Ex Parte was filed involving a dispute between La Energia Nortena, Llc, Novoa, Humberto, Zamarripa, Adrian, and Cuevas, Moises, for OTHER (CIVIL) in the District Court of Dallas County.

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FILED
4/10/2023 11:42 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker-Ayodele DEPUTY

CAUSE NO. DC-22-03103

LA ENERGIA NORTENA, LLC, IN THE DISTRICT COURT
ADRIAN ZAMARRIPA, and
HUMBERTO NOVOA,
Plaintiffs,

vs. 192" JUDICIAL DISTRICT

MOISES CUEVAS, JR.
Defendant. DALLAS COUNTY, TEXAS

DEFENDANT’S NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Defendant Moises Cuevas, Jr. files this no-evidence motion for partial

summary judgment on Plaintiff's cause of action for breach of fiduciary duty against Defendant

Cuevas and Plaintiffs further request for declaratory relief on the sound recording copyrights in

dispute.

INTRODUCTION

Since April 15, 2021, Plaintiffs have alleged a single cause of action against Moises Cuevas

for breach of fiduciary duty. Despite this Court compelling Plaintiffs to produce any evidence in

support of their claims and cause of action in against Defendant Moises Cuevas, Jr., Plaintiffs have

failed to produce any evidence to support a single element of cause of action for breach of fiduciary

duty or request for declaratory relief. Accordingly, Plaintiff Moises Cuevas motions this Court to

grant his no-evidence motion for summary judgment as to Plaintiff's claims for breach of fiduciary

duty and declaratory judgment.

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 1
II.

PLAINTIFF’S SECOND AMENDED PETITION

Plaintiffs’ active Second Amended Complaint repleads a single cause of action for breach

of fiduciary duty against Defendant Moises Cuevas for allegedly:

(i) Acting inappropriately and belligerently casting La Energia Nortena
in a negative light;

(ii) [Posting] cryptic messages casting La Energia Nortena in a negative
light in an effort to damage its reputation; and

(iii) Making claims of ownership of albums where he has no right to
claim copyrights.

See Pl.’s Second Am. Pet. at {| 17.

Plaintiffs also request that the State Court judicially declare “the copyrights interest in the

albums [embodying the sound performances of the music group known as La Energia

Nortena]...including but not limited to: declaring that all ownership and any copyrights to the ten

albums were transferred by contractual agreement to Azteca Records, and (ii) ordering Defendant

to cease any attempt to seek copyright or other legal protection for any album produced by Azteca

Records for the band, La Energia Nortena.” See id. at § 22.

Finally, Plaintiffs seek the Court’s intervention for their proposed wind down and

dissolution of La Energia Nortena LLC, requesting that “...Plaintiff, Humberto Novoa, be placed

in charge and that Plaintiffs have judgment against Defendant for damages with declarations as

requested herein together with Plaintiff's attorney’s fees and all costs.” See id. at 9 18-21, 27.

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 2
Il.

NO-EVIDENCE SUMMARY JUDGMENT

To succeed on a no-evidence motion for summary judgment against a plaintiffs cause of

action, the defendant must allege that, after adequate time for discovery, there is no evidence of an

essential element of the plaintiffs cause of action. Tex. R. Civ. P. 166a(i); see Boerjan v.

Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310

(Tex. 2009); Fort Brown Willas III Condo. Ass’n y. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009).

If the defendant meets its burden, the burden shifts to the plaintiff to produce more than a scintilla

of evidence to raise a genuine issue of material fact on the challenged element. Tex. R. Civ. P.

166a(i); see Boerjan, 426 S.W.3d at 312; Forbes, Inc. Granada Biosciences, Inc., 124 8.W.3d 167,

172 (Tex. 2003). The evidence must be sufficient to allow reasonable and fair-minded people to

differ in their conclusions on whether the challenged fact exists; evidence that raises only a

speculation or surmise is insufficient. Forbes, Inc., 124 S.W.3d at 172. If less than a scintilla of

evidence is produced, the defendant is entitled to a summary judgment on the plaintiffs cause of

action.

A. Adequate time for discovery has passed.

To determine whether an adequate time for discovery has passed, courts consider the

following nonexclusive factors: (1) the nature of the suit; (2) the evidence necessary to controvert

the motion; (3) the length of time the case has been on file; (4) the length of time the motion has

been on file; (5) the amount of discovery that has already taken place, (6) whether the movant

requested stricter deadlines for discovery, and (7) whether the discovery deadline were specific or

vague. Cmty. Initiatives, Inc. v. Chase Bank, 153 8.W.3d 270, 278 (Tex. App.—E]l Paso 2004, no

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 3
pet.); Rest. Teams Int’l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. App.—Dallas 2002, no

pet.); Martinez v. City of San Antonio, 40 S.W.3d 587, 591 (Tex. App.—San Antonio 2001, pet.

denied).

Defendant Cuevas is entitled to a no-evidence summary judgment on Plaintiffs’ cause of

action for breach of fiduciary duty because Plaintiffs have had two years to produce evidence in

support of their claims and causes of actions and have failed to produce any evidence to support

their cause of action against Defendant Cuevas for breach of fiduciary duty or their request for

the Court to judicially declare the copyright ownership of the sound recordings in question — even

after being compelled by this Court to do so.

Texas Rule of Civil Procedure 194.1(a) provides, “[A] party must, without awaiting a

discovery request, provide the other parties the information or material described in Rule 194.2.

194.3, and 194.4.” Moreover, Rule 194.2 requires a party to “make the [following] initial

disclosures within 30 days after the filing of the first answer or general appearance....” See Tex.

R. Civ. P. 194.2(a).

Defendant Cuevas first answered Plaintiff's Original Petition and made a voluntary

appearance in this action without being served on September 2, 2021. Accordingly, Plaintiffs

required disclosures were due to Defendant by October 3, 2021.

Instead of providing Defendant Cuevas with required disclosure by the October 3, 2021

deadline, Plaintiffs did not tender any required disclosures until January 7, 2022. Upon review of

such initial disclosures, Defendant noted that Plaintiffs had failed to fully respond to many of the

Initial Disclosures including Initial Disclosures 4 and 6.

Initial Disclosure 4 requires a party to “state the amount and any method of calculating

economic damages.” See Tex. R. Civ. P. 194.2(b)(4). Initial Disclosure 6 requires a party to

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 4
provide “a copy—or a description by category and location—of all documents, electronically

stored information, and tangible things that the responding party has in its possession, custody, or

control, and may use to support its claims or defenses, unless the use would be solely for

impeachment.” See Tex. R. Civ. P. 194.2(b)(4).

Because Plaintiffs failed and/or refused to respond adequately and fully to such required

Initial Disclosures in support of their claims and causes of action, Defendant was forced to file a

motion to compel on June 30, 2022. On July 27, 2022, this Court granted Defendant Cuevas’

Motion to Compel Plaintiffs to Supplement and Fully Respond to Required Initial Disclosures 4,

5, and 6 by August 3, 2022. See attached Exhibit A.

However, the Plaintiffs once again failed and/or refused to meet such Court compelled

discovery deadline. Plaintiffs did not produce a document entitled, Plaintiffs’ First Amended and

Required Initial Disclosures, until August 12, 2022. See attached Exhibit B.

Upon review of the document entitled, Plaintiff's First Amended and Required Initial

Disclosures, Defendant Cuevas noted that Plaintiffs had once again failed and/or refused to fully

respond to Initial Disclosure 4 and 6. See attached Exhibit B at Resp. to Disclosure 4 & 6.

With regards to Initial Disclosure 4, Plaintiffs failed and/or refused to state their economic

damages or provide any method for the calculation of damages. See id.

With regards to Initial Disclosure 6, Plaintiff failed and/or refused to produce any evidence

in support of their claims and causes of action against Defendant Cuevas including but not limited:

. Documents in support of Plaintiffs’ claim that Moises Cuevas, Jr. posted cryptic

messages on social media publicly and very visibly defaming the entity and its

members;

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 5
Documents in support of Plaintiffs’ claim that Moises Cuevas caused problems with

law enforcements; and

Documents in support of Plaintiffs’ alleged allegation that La Energia Nortena, LLC

has been financially harmed.

See id.

Instead of producing any evidence as required by Rule 194 and further compelled by this

Court to do so by August 3, 2022, Plaintiffs evasively responded to once again state “will

supplement.” See id.

Accordingly, given the fact that two years has passed since Plaintiffs first filed their lawsuit

against Defendant Cuevas and still Plaintiffs have failed and/or refused to produce any evidence

in support of their claims or causes of action against Defendant Cuevas when previously compelled

to do so by this Court before any stay of the state court proceedings was entered, there is no

question that adequate time has passed for this Court to rule on Defendant Cuevas’ no-evidence

motion for summary judgment.

B. No evidence to support Plaintiffs’ cause of action for breach of fiduciary duty or request

for declaratory relief.

1. There is no evidence to support Plaintiffs’ cause of action for breach of fiduciary

duty.

The Dallas Court of Appeals has held, “To prevail on a breach of fiduciary duty claim, a

plaintiff must prove three elements:

1 the existence of a fiduciary duty,

2. a breach of the duty, and

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 6
3. damages caused by the breach.

Henry v. Notzon, No. 05-20-00994-CV, 2022 Tex. App. LEXIS 9390, at *10 (Tex. App.—Dallas

Dec. 22, 2022, no pet. h.) (citing Las Colinas Obstetrics-Gynecology-Infertility Ass'n, P.A. v.

Villalba, 324 S.W.3d 634, 645 (Tex. App.—Dallas 2010, no pet.).).
After two years since Plaintiffs first filed their lawsuit against Defendant Cuevas for a

single cause of breach of fiduciary duty and after Plaintiffs were previously compelled by this

Court to produce evidence in support of claims and causes of action, Plaintiffs have still to this

day failed and/or refused to produce any evidence to support the essential elements of their cause

of action for breach of fiduciary duty. See attached Exhibit B at Resp. to Disclosure 4 & 6.

With regards to Plaintiff's allegations that Defendant Cuevas breached his fiduciary duties

and caused injury and damages to the Company, Plaintiffs have produced no evidence to support

their allegation that Defendant Cuevas allegedly:

(i) Acted inappropriately and belligerently casting La Energia Nortena
in a negative light;

(ii) Posted cryptic messages casting La Energia Nortena in a negative
light in an effort to damage its reputation;

(iii) Made claims of ownership of albums where he has no right to claim
copyrights;

(iv) Carried firearms onto Plaintiff La Energia Nortena, LLC’s
property, thereby causing problems with law enforcement; or

(v) Appeared intoxicated at public events.

See Pl.’s Second Am. Pet. at J§ 11-13 & 17; See Exhibit B at Resp. to Disclosure 4 & 6.

Accordingly, Plaintiffs cannot prove essential elements 1 and 2 of their cause of action for breach

of fiduciary duty.

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 7
Furthermore, Plaintiffs have failed and/or refused to produce any evidence in support of

any damages caused by the alleged breach. See Exhibit B at Resp. to Disclosure 4 & 6. As

previously mentioned, Plaintiffs have failed to disclose the amount of their required damages, the

calculation of such damages, and/or produce any evidence in support of their allegation that

Plaintiff La Energia Nortena, LLC has been damaged by the alleged actions of Defendant Cuevas.

See id. Accordingly, Plaintiffs cannot prove essential element 3 of their cause of action for breach

of fiduciary duty.

Therefore, the Court should grant summary judgment on Plaintiffs’ cause of action for

breach of fiduciary duty in favor of Defendant Cuevas.

C. There is no evidence of a written contract signed by Moises Cuevas, Jr. transferring any

ownership rights of sound recording copyrights in question that would allow the State Court

the jurisdiction to rule on Plaintiffs’ erroneous request for declaratory relief.

Ownership of “copyright in a work vests initially in the author or authors of the work.” See

17 U.S.C. § 201(a).
Specifically, with regards to ownership of sound recordings, Federal Courts, including

those of the Fifth Circuit Court of Appeals, have explained:

A sound recording is owned by the person whose performance
is reflected on the recording. The sound recording itself
constitutes a property right in favor of the musicians and is in
addition to the author's right in the musical composition. The right
to exploit a sound recording is owned by the recording artist
(voice) and musicians performing the work unless a written
greement transfers those rights to a third party. Session musicians
generally relinquish and assign their performance rights to the label
or band owner for a flat fee or royalty. It is also common for the
main artist to have an agreement with the label regarding their
relative rights in the recording...Merely paying the costs of
production does not entitle the producer to rights in the music.

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 8
In re Porter, 498 B.R. 609, 670 (Bankr. E.D. La. 2013) (Emphasis added.).

It is undisputed that Defendant Cuevas is a band member of musical group La Energia

Nortena and performed as a musician on the musical sound recordings in question. See Pl.’s

Second Am. Pet. at § 8. Therefore, Defendant Cuevas is, arguably, a co-author and co-owner of

the sound recording works in question.

Furthermore, “The transfer of copyright ownership...is not valid unless an instrument of

conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of

the rights conveyed.” See 17 U.S.C. § 204(a) (emphasis added). Defendant Moises Cuevas, Jr.

has never signed any written document transferring his ownership rights to any person or entity.

Additionally, with regards to disputes of copyright ownership, the State Court or the

Federal Court’s ability and jurisdiction to decide such matters turns on whether there is written

agreement or memorandum signed by the author(s) transferring ownership of the copyright.

28 U.S.C. § 1338(a) specifically states:

The [federal] district courts shall have original jurisdiction of
any civil action arising under any Act of Congress related
to...copyrights....No State court shall have jurisdiction over any
claims for relief arising under any Act of Congress relating
to...copyrights.

With regards to matters of copyright ownership, the Federal Courts have explained:

[C]laims premised upon authorship of a copyrighted work arise
under the Act. Severe Records, LLC v. Rich, 658 F.3d at 580, 581
(6th Cir. 2011) (holding that the court had jurisdiction over an
action in which the plaintiffs sought a declaratory judgment to
identify the authors of certain sound recordings and the
underlying compositions, where the defendants had threatened to
sue the plaintiffs for copyright infringement on "numerous
occasions"). In addition, ownership claims grounded in dispute:
about authorship are considered to arise under the Act. See,
e.g., Merchant v. Levy, 92 F.3d 51, 55 (2d Cir. 1996) ("Plaintiffs'
action seeking to establish their rights to copyright co-

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 9
ownership because of their status as co-authors of a joint work falls
ell within these jurisdictional boundaries." (emphasis added)).

However, a dispute about copyright ownership, standing alone,
does not arise under the Copyright Act. See, e.g., Perry, 23 F.
App'x at 211 (affirming the dismissal for lack of subject matter
jurisdiction of a claim that "essentially involve[d] a dispute as to the
ownership of the compositions at issue" and stating "the federal
grant of a. . copyright has not been thought to infuse with any
national interest a dispute as to ownership or contractual
enforcement turning on the facts or on ordinary principles of
contract law" (citing 7.B. Harms, 339 F.2d at
826)); accord Cambridge Literary Props., Ltd. v. W. Goebel
Porzellanfabrik G.m.b.H. & Co. Kg., 510 F.3d 77, 81 (1st Cir.
2007) (holding that co-ownership claims do not "arise under" the
Copyright Act where the claims "may be determined by the
terms of a contract governed by state law or through other
ownership interests governed by state law and thus not require
application of the Copyright Act"); Royal v. Leading Edge Prods.,
Inc., 833 F.2d 1, 4-5 (Ist Cir.1987) (rejecting federal question
jurisdiction where a claim of co-ownership, "in its very nature and
essence, [was] one for breach of contract" under state law); Topolos
v. Caldewey, 698 F.2d 991, 994 (9th Cir. 1983) (holding that federal
courts lack jurisdiction over cases in which the ownership of a
copyright is "the sole question for consideration").

Jones v. Glad Music Publ'g & Recording LP, 535 F. Supp. 3d 723, 732 (M.D. Tenn. 2021); see
also, Goodman vy. Lee, 815 F.2d 1030, 1031 (5 Cir. 1987, adopting Judge Friendly’s test from
T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir. 1964) (emphasis added)); see also, Rodrigue v.
Magnus, No. 20-1240, 2021 U.S. Dist. LEXIS 76552, at *7-8 (E.D. La. 2021).

Accordingly, in order for the State Court to have jurisdiction and authority to declare the

agreement signed by all musicians in the musical group La Energia Nortena (which includes

Moises Cuevas, Jr.). But, no such document has ever been produced and no such document exists

because Defendant Cuevas never signed any written document transferring any of his ownership

rights in the sound recording works in question.

Indeed, while Plaintiffs requests this State Court “...adjudicate and declare the rights and

interest of the parties...including but not limited to: (i) all ownership and any copyrights to the ten

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 10
albums were transferred by contractual agreement to Azteca Records and (ii) ordering Defendant

to cease any attempt to seek copyright or other legal protection for any album produced by Azteca

Records for the band, La Energia Nortena.”, the Plaintiffs request for declaratory relief is without

merit as this State Court lacks jurisdiction to decide the matter of copyright ownership that is

grounded in a dispute of authorship due to the parties’ failure to contract in writing. See Pl.’s

Second Am. Pet. at § 22; see also, 17 U.S.C. 204(a).

In any event, Defendant Cuevas has filed a copyright action with the Federal Court for the

Northern District of Texas, which has exclusive jurisdiction to decide this copyright ownership

matter that is clearly grounded in a dispute of authorship due to the parties’ failure to contract in

writing. See Cuevas v. Novoa, Case No. 3:21-CV-03243-C-BK (N.D. Tex.).

Accordingly, because Plaintiffs cannot produce any written agreement signed by

Defendant Cuevas transferring any ownership rights in the sound recording copyrights in

questions, this Court should deny the declaratory relief requested by the Plaintiffs.

Iv.

ATTORNEY’S FEES

As stated in Defendant’s First Amended Answer, Defendant Cuevas is entitled under the

authority of TEX. Cv. PRAC. & REM. CODE § 37.009 to the recovery of his costs and reasonable

and necessary attorney’s fees in his defense from Plaintiffs’ meritless and inappropriate claim for

declaratory relief and for any appeal that may follow. See Quick v. Plastic Solutions of Tex., Inc.,

2008 Tex. App. LEXIS 9821 (Tex. App.-- El Paso, June 27, 2008) (The Court held that a defendant

was entitled to recover attorney’s fees for defending an unsuccessful declaratory action under Tex.

Civ. Prac. & Rem. Code Ann. § 37.009.). In support of such recovery, Defendant submits the

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 11
affidavit of Defendant’s counsel. See attached Exhibit C. Defendant’s counsel also intends to

prove-up additional attorney’s fees and costs that have been incurred to date at the hearing on

Defendant’s No-Evidence Motion for Summary Judgment.

CONCLUSION

In conclusion, after two years of insupportable allegations raised by Plaintiffs against

Defendant and after Plaintiffs were compelled by this Court to produce evidence in support of their

claims and causes of action, Plaintiffs are unable to produce any evidence to support the essential

elements of Plaintiffs’ cause of action for breach of fiduciary duty or any evidence (i.e. a written

document signed by Moises Cuevas, Jr. transferring the copyright ownership rights in question) to

afford this State Court the jurisdiction to decide the copyright ownership matter as alleged in

Plaintiffs’ claim for declaratory relief.

VI.

PRAYER

For all the reasons stated herein, Defendant, Moises Cuevas, Jr., asks the Court to grant

this no-evidence motion for partial summary judgment and sign an order denying and dismissing

with prejudice Plaintiffs’ cause of action for breach of fiduciary duty and claim for declaratory

relief on the sound recording copyrights in question and further order that Defendant recover his

cost and reasonable and necessary attorney’s fees from Plaintiffs, while the Court stays any

proposed wind down or dissolution of La Energia Nortena, LLC pending the Federal Court’s

resolution of the sound recording copyrights in question.

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 12
AG
Respectfully submitted,

David Chase LanCarte
Texas Bar No. 24082464
LanCarte Law, PLLC
2817 West End Ave., Suite 126-276
Nashville, Tennessee 37203
Tel: 214-935-2430
Fax: 214-935-2450
chase@lancartelaw.com

/s/ Marcus C. Marsden, Jr.
MARCUS C. MARSDEN, JR.
State Bar No. 13014200
marcus@colanerifirm.com
THE COLANERI FIRM, P.C.
524 E. Lamar Blvd, Suite 280
Arlington, Texas 76011
Phone: 817-640-1588
Fax: 817-640-1680

ATTORNEYS FOR DEFENDANT
MOISES CUEVAS, JR.

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 13
CERTIFICATE OF SERVICE

I do hereby certify that I have forwarded a true and correct copy of the above and foregoing
pleading in this cause to all counsel of record as listed below, on this 10 day of April, 2023.

David N. Calvillo
TX State Bar No. 03673000
1200 Smith Street, Suite 1400
Houston, TX 77002

Angel V. Mata
TX State Bar No. 24063940
512 S. Fitzhugh Avenue ry)
Dallas, TX 75223
/
My,7 / TL
\
\

David Chase LanCarte

Def.’s No-Evidence Motion for Partial Summary Judgment PAGE 14
EXHIBIT A

CAUSE NO. DC-22-03103

LA ENERGIA NORTENA, LLC, IN THE DISTRICT COURT
ADRIAN ZAMARRIPA, and
HUMBERTO NOVOA
Plaintiffs,

VS. OF DALLAS COUNTY, TEXAS

MOISES CUEVAS, JR.
Defendant. 192nd JUDICIAL DISTRICT

Order on
Defendant’s Motion to Compel Plaintiffs to Supplement and Fully
Respond to Required Initial Disclosures 4, 5, & 6

The Court having considered Defendant’s Motion to Compel Plaintiffs to Supplement and

Fully Respond to Required Initial Disclosures 4, 5, & 6, the responsive pleadings of the parties,

oral arguments, and evidence submitted, ‘the Court GRANTS Defendants’ said motion and

ORDERS Plaintiffs La Energia Nortena, LLC, Humberto Novoa, and Adrian Zamarripa to
‘supplement and fully respond to Required Initial Disclosures 4, 5, and 6 within 7 days of this Order

&
a. Providing Defendant Cuevas with the amount and calculation of economic damages
‘as required by Initial Disclosure
4; and
b. Providing Defendant Cuevas the contact information including addresses and

telephone numbers for each of the witnesses, persons, or entities that Plaintiffs

identify in response to Initial Disclosure 5; and

c. Providing Defendant Cuevas with copies of documents, information, and things
‘that Plaintiffs may use to support their claims or defenses as required by Disclosure
6 including but not limited to providing Defendant Cuevas with:

Order on Def.’s Motion to Compel Responses to Request for Disclosure 4, 5, and 6 PAGE 1
copy of La Energia Nortena’s certificate of formation,

copy of La Energia Nortena’s valuation report,

‘has been financially harmed.

Signed on 2
712712022 9:55:37 AM

/
ihe Lp! Khan
JUDGE PRESIDING

Order on Def.’s Motion to Compel Responses to Request for Disclosure 4, 5, and 6 PAGE 2
EXHIBIT B

Cause No. DC-22-03103

HUMBERTO NOVOA IN THE DISTRICT COURT
ADRIAN ZAMARRIPA and
LA ENERGIA NORTENA LLC
DALLAS COUNTY, TEXAS
Vv

MOISES CUEVAS 192nd JUDICIAL DISTRICT

PLAINTIFFS’ FIRST AMENDED AND REQUIRED INITIAL DISCLOSURES

Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiffs La

Energia Nortena, LLC, Adrian Zamarripa and Humberto Novoa serve these First

Amended Required Initial Disclosures in accordance with the Texas Rules of Civil

Procedure.

Respectfully submitted,

CHAMBERLAIN, HRDLICKA, WHITE,
WILLIAMS &AUGHTRY, P.C.

By: _/s/ David N. Calvillo
David N. Calvillo
State Bar No.: 03673000
david.calvillo@chamberlainlaw.com
Lauren N. Herrera
State Bar No.: 24092720
lauren. herrera@chamberlainLaw.com
1200 Smith Street, Suite 1400
Houston, Texas 77002
Telephone: (713) 658-1818
Facsimile: (713) 658-2553

THE LAW OFFICE OF ANGEL MATA

By: _/s/ Angel V. Mata
Angel V. Mata
State Bar No. 24063940
attorney@angelmatalaw.com
512 S. Fitzhugh Avenue
Dallas, Texas 7223-2120
Telephone: 972.357.4956

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

A true and correct copy of the foregoing pleading has been served on counsel of
record on August 12, 2022 in accordance with Rule 21a of the Texas Rules of Civil
Procedure.

David Chase LanCarte
LANCARTE Law, PLLC
2817 West End Ave., Suite 126-276
Nashville, Tennessee 37203
chase@lancartelaw.com

Marcus C. Marsden, Jr.
THE COLANERI Fir, P.C.
524 E. Lamar Blvd., Suite 280
Arlington, Texas 76011
marcus@colanerifirm.com

/s/ David N. Calvillo
David N. Calvillo
Plaintiffs have incurred necessary and reasonable attorneys’ fees
in bringing this action and is entitled to award the same pursuant
to Chapter 37 of the Texas Civil Practice and Remedies Code.

4, State the amount and any method of calculating economic damages.

RESPONSE: As a result of the aforementioned acts, Plaintiffs seek damages.
Likewise, they seeks forfeiture of any monies due to Defendant,
as well as declaratory relief and attorney’s fees. The total amount
of such damages has not been finally calculated. Plaintiffs will
provide information concerning their economic damages in
response to Initial Disclosure No. 4 when such amounts can be
calculated after reasonable discovery and after testifying experts
are designated.

Discovery is ongoing, and Plaintiff reserves the right to
supplement this response with additional information according
to the Texas Rules of Civil Procedure and applicable scheduling
orders.

5. The name, address, and telephone number of persons having knowledge of
relevant facts, and a brief statement of each identified person’s connection with
the case.

RESPONSE:

La Energia Nortefia LLC
c/o David N. Calvillo
Lauren N. Herrera
CHAMBERLAIN, HRDLICKA, WHITE,
WILLIAMS & AUGHTRY, P.C.
1200 Smith Street, Suite 1400
Houston, Texas 77002
Telephone: (713) 658-1818
Fascimile: (713) 658-2553

-and-

Angel V. Mata
THE LAW OFFICE OF ANGEL MATA
512 S. Fitzhugh Avenue
Dallas, Texas 75223
Telephone: (972) 357-4956
(B) Mr. Calvillo’s resume is available at
https://www.chamberlainlaw.com/people-david_calvillo.html.

(C) Mr. Calvillo’s opinions will be based generally on his education, training, and
experience, both in this and other cases, and the billing records of Plaintiffs’
counsel and Defendants’ counsel in this case.

(D) Not applicable.

(E) Mr. Calvillo’s hourly rate, including the hourly rate of his associates and
paralegals, are located in Plaintiffs’ attorney fee invoices, which will be
produced at the appropriate time.

Discovery is ongoing, and Plaintiff reserves the right to supplement this
response with additional information according to the Texas Rules of Civil
Procedure and applicable scheduling orders.

6. Acopy-or a description by category and location-of all documents, electronically
stored information, and tangible things that the responding party has in its
possession, custody, or control, and may use to support its claims or defenses,
unless the use would be solely for impeachment.

RESPONSE: Plaintiffs and/or their counsel are in possession of the following
that may be used to support their claims and defenses:

Description/Category Response
La Energia Nortena LLC’s See Bates-labeled
certificate of formation documents, LEN 000001-
000004.
La Energia Nortena LLC’s See Bates-labeled
valuation report documents, LEN 000005-
000026.
Documents in support of Plaintiffs will supplement.
Plaintiffs’ claim that Moises
Cuevas, Jr. posted cryptic
messages on social media
publicly and very visibly
defaming the entity and its
members
Documents in support of Plaintiffs will supplement.
Plaintiffs’ claims that Moises
Cuevas caused problems with
law enforcement

11
Description/Category Response
Documents in support of Plaintiffs will supplement.
Plaintiffs’ allegation that La
Energia Nortena, LLC has been
financially harmed

Discovery is ongoing, and Plaintiff reserves the right to
supplement this response with additional information according
to the Texas Rules of Civil Procedure and applicable scheduling
orders.

7. Any indemnity and insuring agreements described in Rule 192.3(f).

RESPONSE: None.

8. Any settlement agreements described in Rule 192.3(g).

RESPONSE: None.

9. Any witness statements described in Rule 192.3(h).

RESPONSE: None.

10.In a suit alleging physical or mental injury and damages from the occurrence
that is the subject of the case, all medical records and bills that are reasonably
related to the injuries or damages asserted or, in lieu thereof, an authorization
permitting the disclosure of such medical records and bills.

RESPONSE: Not applicable.

11.In a suit alleging physical or mental injury and damages from the occurrence
that is the subject of the case, all medical records and bills obtained by the
responding party by virtue of an authorization furnished by the requesting
party.

RESPONSE: Not applicable.

12.The name, address, and telephone number of any person who may be
designated as a responsible third party.

RESPONSE: None at this time.

30243988.v1

12
EXHIBIT C

CAUSE NO. DC-22-03103

LA ENERGIA NORTENA, LLC, IN THE DISTRICT COURT
ADRIAN ZAMARRIPA, and
HUMBERTO NOVOA,
Plaintiffs,

vs. 192"4 JUDICIAL DISTRICT

MOISES CUEVAS, JR.
Defendant. DALLAS COUNTY, TEXAS

AFFIDAVIT OF DAVID CHASE LANCARTE IN SUPPORT OF
DEFENDANT’S NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT

Before me, the undersigned authority, personally appeared DAVID CHASE LANCARTE,
who, being by me duly sworn, deposed as follows:

1 "My name is David Chase LanCarte. I am over the age of eighteen and am otherwise
competent to make this Affidavit. The facts stated in this Affidavit are within my personal
knowledge and are true and correct.

2. lam an attorney and licensed to practice law in the State of Texas and State of Tennessee
and have been so licensed and in good standing with such states since 2014. I am also licensed to
practice law in the State of New York and have been so licensed and in good standing with such
state since 2019. I am currently practicing law by and through my law firm, LanCarte Law, PLLC
(the “Firm’”). Much of my practice of the law focuses on counseling and representing clients with
their business, music, entertainment, and intellectual property law matters. I have also been a
speaker at music, entertainment, and intellectual property CLE seminars including but not limited
to those hosted by the Tennessee Intellectual Property Law Association. I have been litigating
cases in Texas since 2014. In 2016, I also earned my LL.M. in trial advocacy from the Temple
University School of Law. In 2020, my article entitled Give Me Back My Masters was published
by the ABA Entertainment and Sports Lawyer Journal. I was also selected in 2021 and 2022 as a
Rising Star Attorney by Thomason Reuters’ Super Lawyers for the Mid-South.

3 I, along with my co-counsel, Mark Marsden, represent Moises Cuevas, Jr. (“Defendant”)
in the above captioned lawsuit that was originally filed by Plaintiffs La Energia Nortena, LLC,
Humberto Novoa, and Adrian Zamarripa. I am familiar with the legal services necessary to handle
cases based on similar claims in Texas, including Dallas County, Texas.

4 Since my Firm was employed by Defendant, I, along with co-counsel Mark Marsden, have
spent many hours performing the following services in the defense of this state action for the
Defendant: participating in various conferences with my client; conferring with opposing counsel;

Affidavit of David Chase LanCairte in Supp. of Def.’s No Evidence Mot. for Summ. J. PAGE 1
preparing and filing Plaintiffs original answer and amendments thereto, reviewing documents and
pleadings related to the parties' allegations; preparing and filing various pleadings, motions, and
orders on behalf of Defendant Cuevas’ (including preparation of the present no-evidence motion
for summary judgment and supporting affidavit and documents), and attending numerous hearings.

5 In considering reasonable attorneys' fees in this case, I have considered the time and labor
involved; the difficulty of the issues presented; the experience, reputation, and ability of the parties
involved in pursuing the claims; the skills required to properly conduct the case; customary charges
of the bar and awards in similar cases; and the amount in controversy. Based on my knowledge
and experience with similar litigation in Dallas County, Texas and applying the facts and
circumstances set out above, it is my opinion that $275.00 per hour for my legal services is
extremely reasonable hourly rates for the legal work necessary to prosecute this matter. I have
dedicated approximately 243 hours specifically on matter as it pertains to the present state action
for a total sum of $66,825.00. It is my opinion that $66,825.00 is necessary and reasonable for the
attorney time that I have rendered in representing Defendant thus far in this state action matter.

6. Additionally, with regards to the state case, Defendant has incurred $1,438.69 in cost expenses
in the defense of this state action to date (which include service mailings of pleadings and travel
costs to attend hearings in this state action).

7. Accordingly, at present, Defendant and Defendant’s counsel seek the recovery of $68,263.69
for reasonable and necessary attorney’s fees and costs in the defense of this state action to date

Further, affiant sayeth not.”

OL
David Chgsé LanCarte

SUBSCRIBED and SWORN TO BEFORE ME, on this ! day of April, 2023

@
ANDREA SATKA 100517 \
ON HH
mY COMMISSI
EXPIRES: March4.2
Ross 01 iblic, in and for
the State of Fennessee Florida

Affidavit of David Chase LanCarte in Supp. of Def.’s No Evidence Mot. for Summ. J. PAGE 2
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

David LanCarte
Bar No. 24082464
chase@lancartelaw.com
Envelope ID: 74471764
Filing Code Description: No Evidence Motion For Summary Judgment
Filing Description: PARTIAL
Status as of 4/10/2023 11:50 AM CST

Associated Case Party: MOISES CUEVAS

Name BarNumber Email TimestampSubmitted | Status

David LanCarte | 24082464 chase@lancartelaw.com | 4/10/2023 11:42:17 AM | SENT

Associated Case Party: HUMBERTO NOVOA

Name BarNumber Email TimestampSubmitted Status

Debbie Kennedy debbie.kennedy@chamberlainlaw.com 4/10/2023 11:42:17 AM SENT
David N.Calvillo david.calvillo@chamberlainilaw.com 4/10/2023 11:42:17 AM SENT

Judy Rochna judy.rochna@chamberlainlaw.com 4/10/2023 11:42:17 AM SENT
Lauren Herrera lauren.herrera@chamberlainlaw.com 4/10/2023 11:42:17 AM SENT

Armando Huereca armando.huereca@chamberlainlaw.com 4/10/2023 11:42:17 AM SENT

Angel V.Mata attorney@angelmatalaw.com 4/10/2023 11:42:17 AM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted | Status

Marcus C. Marsden 13014200 marcus@colanerifirm.com 4/10/2023 11:42:17 AM | SENT

Estefany Martinez martinez@angelmatalaw.com | 4/10/2023 11:42:17 AM | SENT

Case Info

Judge

ACEVES, MARIA Track Judge’s New Case

Case No.

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Document Filed Date

May 11, 2023

Case Filing Date

February 16, 2021

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Motion,Ex Parte: LA ENERGIA NORTENA, LLC, et al vs. MOISES CUEVAS

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