CAUSE NO.: 03-08-06049-CV
SCARLETT R. BRANN § IN THE DISTRICT COURT OF
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VS. § MONTGOMERY COUNTY, TEXAS
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IRVING and ARLENE TOBACK §
INDIVIDUALLY and D/B/A § 284th JUDICIAL DISTRICT
PAT-A-ROSE MINIATURE HORSES §
A/K/A PAT-A-ROSE PARTNERSHIP § JURY TRIAL DEMANDED
PLAINTIFF’S MOTION TO HOLD DEFENDANT ARLENE TOBACK
IN CONTEMPT OF COURT AND FOR SHOW-CAUSE ORDER
COMES NOW, Plaintiff SCARLETT BRANN, and files this her Motion to Hold Defendants, ARLENE TOBACK, INDIVIDUALLY AND D/B/A PAT-A-ROSE MINIATURE HORSES A/K/A PAT-A-ROSE PARTNERSHIP in Contempt of Court for refusal to abide by the Court’s Order, and as grounds therefore would respectfully show unto the Court as follows:
I. Parties
1. Movant is Plaintiff SCARLETT BRANN, and Respondent is Defendant ARLENE TOBACK in this cause and may be served through Counsel of Record, George Renneberg, 804 West Dallas, Suite 9, Conroe, Texas 77301.
II. Factual Background
2. On December 4, 2003 this Court entered its ORDER GRANTING WRIT OF ATTACHMENT and APPOINTING A SPECIAL RECEIVER, ordering among other things immediate attachment of certain non-exempt property as follows:
It is further ORDERED that upon service of the Writ of Attachment, custody of the following animals, together with their original registration certificates, three signed Foal Registration Forms…
3. On December 5, 2003, Deputy Constable Don Smith duly served Respondent Arlene Toback in person with Writ of Attachment and Order Granting Writ of Attachment and Appointing a Special Receiver. Upon service Respondent refused to abide by the Order of this Court, refusing to turn over six original registration certificates from the American Miniature Horse Association, one original registration certificate from the American Miniature Horse Registry and two signed original foal registration forms from the American Miniature Horse Association. A third foal registration form was ordered to be signed and turned over as a part of the Attachment, however, it was learned during the Execution of the Writ of Attachment that the third foal died while in Respondents’ custody.
4. On December 8, 2003, Movant learned that Respondent Arlene Toback related to several confidants that she intended to use the original certificates of registration to transfer ownership title of the six horses to her daughter who lives in the state of Washington in order to claim wrongful attachment and regain custody of the horses that were the subject of the Writ of Attachment. Based on this information and belief, Plaintiff submits that the Respondents defiance of this Court Order was intended to allow a fraudulent transfer of title to avoid the jurisdiction of this Court and to deny Movant the very protection that the Court’s Order of Writ of Attachment was intended to provide.
III. Legal Foundation
5. Under Rule 215 of the Texas Rules of Civil Procedure, Respondent’s refusal to comply with this Court’s order is a contempt of court. Tex. R. Civ. P. 215. Respondent should be punished for contempt and jailed thereafter until Respondent complies with this Court’s order. Rule 215 addresses documents that have been ordered to be produced by order of a court pursuant to the discovery rules. The Writ of Attachment Order in this cause is effectively an identical order for all purposes. Further, Rule 176.8 Texas Rules of Civil Procedure provides for the following:
176.8 Enforcement of Subpoena (a) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.
6. Service of the Writ of Attachment and Order Granting Writ of Attachment on Respondent Arlene Toback and her intentional refusal to abide by the Order of this Court subjects her to further Order of the Court. Respondent should be punished for contempt and jailed thereafter until Respondent complies with this Court’s Order.
VI. Relief Sought
7. Movant asks this Court to issue an order of Show-Cause Hearing compelling Respondent’s appearance before this Court, to find Respondent in Contempt of the Court’s ORDER GRANTING WRIT OF ATTACHMENT and APPOINTING A SPECIAL RECEIVER and subpoena duces tecum served as a part of the served writ of attachment, to compel Respondent to turn over the original Certificates of Registration from AMHA and AMHR on the following horses, now in the custody of the Special Receiver pursuant to Order of Writ of Attachment:
a. Medieval Times Superstition “Zoey”, AMHA registered;
b. Freedom Hill Farms High Steppin Fashion, AMHA and AMHR registered;
c. MarJacs Midnight Velvet, AMHA registered;
d. Pat-A-Rose Golden Melody Serenade, AMHA registered;
e. Maxwell’s “ Munchie”, AMHA registered;
f. Maxwell’s Radiance, “Domi”, AMHA registered.
8. Movant further asks that this Court compel Respondent to sign two original foal registration forms for the 2004 foals of pregnant mares Freedom Hill Farms High Steppin Fashion and MarJacs Midnight Velvet. The original certificates available for signature are found in an envelope already contained in the file materials in the Cause.
9. Movant asks this Court to punish Respondent for her intentional defiance of this Court’s Order in the amount of at least $800.00 and to order Respondent to be held in confinement until she complies with the Court Order.
10. As a result of Respondent’s failure to obey the order of this Court Movant has been forced to bring this Motion for Contempt of Court to protect the interests protected by this Court’s Order Granting Writ of Attachment and Appointment of Special Receiver. Movant is entitled to reasonable expenses and attorney’s fees incurred in bringing this motion. Reasonable attorney’s fees for the services rendered in this matter are at least $1200.00. Movant asks the Court to further order Respondent to pay these reasonable and necessary attorneys fees or be confined until Respondent complies with the Order of Contempt.
WHEREFORE, PREMISES CONSIDERED, Movant prays that the Court set this matter for Show-Cause hearing, that Respondent, after notice and hearing, be held in contempt of court, be compelled to provide the original certificates and signatures previously ordered to have been produced, that Respondent be fined an amount the Court feels is sufficient to punish Respondent for her disobedience of the Court’s Order, That the Respondent be ordered to pay reasonable and necessary attorney’s fees of at least $1200.00 incurred as a result of Respondent’s disobedience of the Court’s Order, that the Respondent be confined in jail until Respondent purges herself of contempt by complying with the orders of this Court and for such other and further relief to which Movant my show herself justly entitled.
Respectfully submitted,
VICTORIA THOMPSON
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TBN: 02888400
3 Live Oak Trail
Cypress, TX 77429
(281) 970-7191
(281) 970-7193 – FAX
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that on this 9th day of December, 2003, a true and correct copy of the foregoing instrument was served by regular mail, return receipt requested to Counsel in Charge for Defendants, George Renneberg, 804 West Dallas, Suite 9, Conroe, Texas 77301.
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Victoria Thompson
Plaintiff’s Motion to Hold Defendant Arlene Toback
in Contempt of Court and for Show-Cause Order
Page 4.