CAUSE NO.: 03-08-06049-CV
SCARLETT R. BRANN § IN THE DISTRICT COURT OF § § § VS. § MONTGOMERY COUNTY, TEXAS § 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 FOR FINAL SUMMARY JUDGMENT AGAINST IRVING AND ARLENE TOBACK, IND. and D/B/A PAT-A-ROSE MINIATURE HORSES A/K/A PAT-A-ROSE PARTNERSHIP
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, SCARLETT BRANN, Plaintiff herein, and files this MOTION FOR
FINAL SUMMARY JUDGMENT pursuant to Texas Rules of Civil Procedure 198.2 (c), 193.6
(a) and 166a (a) and in support thereof would respectfully show the Court the following:
I. Factual Background
1). Plaintiff brought this suit as asserted in Plaintiff’s First Amended Original Petition on file with this Court, to recover pecuniary damages resulting from intentional actions by the
Defendants in assaulting her on June 9, 2003. Defendants intended to harm her and to force her to move her horses from the farm where she had them boarded, and in particular, to move a mare who was in the last few months of a pregnancy. Plaintiff had contracted with the farm for mare and foal services. As a result of the forced move, the mare became stressed and foaled 45 to 60 days prematurely. Plaintiff brought suit to recover costs of the alternate mare and foal services, extensive veterinary care in the past and in the future for the foal, for the loss of value of the foal as a show horse, and causing Plaintiff herself emotional harm from the assault.
Plaintiff’s Motion for Final Summary Judgment Page 1. 2.) Plaintiff has further plead in her First Amended Original Petition that Defendants’ violent and intentional actions toward her caused the farm where she had arranged to have the mare and foal services provided, to revoke their agreement. The owners feared that they could not protect the horses from direct injury due to the fact that the Defendants were living on the property, so
Plaintiff was directed to move her animals as soon as possible. Plaintiff has this brought suit to recover pecuniary damages for the tortious interference in the contractual business relationship with the farm for mare and foal services.
3.) Finally, Plaintiff has brought this action to recover damages caused by Defendants intentional actions in defaming her and disparaging her business reputation by sending a letter to the
American Miniature Horse Association falsely accusing Plaintiff of violating the Association rules by submitting altered photos in order to register a horse improperly and in publishing false accusations about the Plaintiff over the Internet on a web site, via email messages and via personal instant messages. Defendants have also slandered Plaintiff to members of the miniature industry and the community in general. Plaintiff ‘s reputation and business reputation have been damaged as a result of Defendants’ defamation and she now seeks to be compensated for the damage she has incurred.
II. Deemed Admissions
4.) On September 11, 2003 Plaintiff served Defendants with numerous discovery requests including Requests for Admissions as reflected in Exhibit “A”, attached hereto and incorporated herein for all purposes. Defendant Irving Toback was served at his regular place business,
Camperland Trailer Sales, 15340 I45, Conroe, Montgomery County, Texas as evidenced in the delivery confirmation reflected in Exhibit “B”, attached hereto and incorporated herein for all purposes. Defendant Arlene Toback was served via Federal Express delivery to The Country
Plaintiff’s Motion for Final Summary Judgment Page 2. Place RV Park, 3701 Waukegan Road, Cut and Shoot, Montgomery County, Texas where she lives in a recreational vehicle, as evidenced in the delivery confirmation reflected in Exhibit
“C”, attached hereto and incorporated here in for all purposes.
5.) Pursuant to Rule 198.2 (a) Texas Rules of Civil Procedure, Responses to Requests for
Admissions would have been due fifty days from September 11, 2003, on or before October 31,
2003. No responses to the Requests for Admissions, nor responses to any of the other discovery requests, have been served to Plaintiff to the present date. Defendants filed their Original
Answer on September 22, 2003 through counsel of record. Discussion of specific discovery requests has proceeded between counsels since that date. It is the Plaintiff’s submission that the
Defendants’ intend to abandon the defense of this matter.
6.) Failure to respond to Requests for Admissions in a timely fashion causes the Requests to be deemed admitted as a matter of law pursuant to Rule 198.2 (c) Texas Rules of Civil
Procedure. Deemed Admissions are competent summary judgment evidence. Flores v. H.E.
Butt Stores, Inc., 791 S. W. 2d 160 (TEX. APP. – Corpus Chrisiti 1990, writ denied); Laycox v.
Jaroma, Inc., 709 S.W. 2d 2 (TEX. APP. – Corpus Chrisiti 1986, Writ ref’d n.r.e.). More over, deemed admissions may not be contradicted by other summary judgment evidence. State v.
Carillo, 885 S.W. 2d 212 (TEX. APP. –San Antonio 1994, no writ); Whitworth v. Kuhn, 734 S.W.
2d 108 (TEX. APP. – Austin 1987, no writ).
IV. Grounds for Summary Judgment
7.) On a Motion for Summary Judgment the moving party bears the burden of proving that there exists no genuine issues of material fact. Gosami v. Metropolitan Sa. & Loan Ass’n, 752
S.W. 2d 487 (TEX. 1988); Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (TEX. 1985).
Plaintiff’s Motion for Final Summary Judgment Page 3. 8.) All elements of the Plaintiff’s causes of action and damages are deemed admitted by the Defendants as a matter of law and no genuine issues of fact remain for trial by jury in the case before the Court.
V. Summary Judgment Proper on Assault Cause of Action
9.) Plaintiff is entitled to final summary judgment on her claims of assault, which caused her damages. Texas courts have long held that an assault is an offense against the peace and dignity of the State, as well as an invasion of private rights. Texas Bus Lines v. Anderson, 233
S.W. 2d 961 (TEX.APP. – Galveston 1950, writ ref’d n.r.e.). The elements for assault are the same in civil and criminal cases, being defined by the Texas Penal Code. See Wal-Mart Stores,
Inc. v. Odem, 929 S.W.2d 513 (TEX. APP. – San Antonio 1996, writ denied). Physical contact is not required for an assault to have occurred. Merely the offensive invasion of one’s personal area is as much of an assault as would be actual contact with the body. Fisher v. Carrousel
Motor Hotel, Inc., 424 S.W.2d 627 (TEX. 1969). Under Texas Penal Code Ann. (Vernon Supp.
2002) Section 22.01 the elements of assault are defined:
(a) A person commits an offense if the person:
(2) Intentionally or knowingly threatens another with imminent bodily injury, or
(3) Intentionally or knowingly causes physical contact with another when the
person knows or should reasonably believe that the other will regard the contact
as offensive or provocative.
VI. Summary Judgment on Assault Proper Against Irv Toback
10.) Admissions of Defendant Irving Toback, Individually and d/b/a Pat-A-Rose
Miniature Horses a/k/a Pat-A-Rose Partnership as reflected in Exhibit “A” establish that
Plaintiff’s Motion for Final Summary Judgment Page 4. Defendant knowingly and intentionally assaulted Plaintiff on June 9, 2003 with the intent of causing her to move her horses and to inflict Plaintiff harm:
12. You saw Plaintiff as a threat to your intent to control Margie Wood and MarJac Miniatures.
RESPONSE: DEEMED ADMITTED
13. You intended to drive Plaintiff away from any contact with Margie Wood and MarJac Miniatures.
RESPONSE: DEEMED ADMITTED
14. You told Jack Wood that you were going “take care of that kid” once and for all on June 9, 2003.
RESPONSE: DEEMED ADMITTED
15. You intended to throw Plaintiff and her horses off of the MarJac property on June 9, 2003.
RESPONSE: DEEMED ADMITTED
16. You knew that your wife could not cause a problem with Plaintiff because Margie Wood had told you that she would evict you from the property if that occurred.
RESPONSE: DEEMED ADMITTED
19. You knew Plaintiff brought her mare “Warmans Sunshine” to MarJac Miniatures for mare and foaling care.
RESPONSE: DEEMED ADMITTED
20. You knew it would be dangerous to move a pregnant mare late in the pregnancy,
RESPONSE: DEEMED ADMITTED
21. You knew the Plaintiff would not be able to leave her horses at place where she could not visit and care for the horses at will.
RESPONSE: DEEMED ADMITTED
22. You knew that causing Plaintiff to be frightened of you would cause her to move her horses.
Plaintiff’s Motion for Final Summary Judgment Page 5. RESPONSE: DEEMED ADMITTED
23. You knew Plaintiff would not leave her horses at MarJac Miniatures after you assaulted her on June 9, 2003.
RESPONSE: DEEMED ADMITTED
24. You told Jack Wood that you were going to use “F***” when throwing the Plaintiff off of the MarJac property.
RESPONSE: DEEMED ADMITTED
25. You screamed and threw your arms about and toward Plaintiff on June 9 when you told her to leave and never come back.
RESPONSE: DEEMED ADMITTED
26. You were angry at Plaintiff because of what your wife told you about her.
RESPONSE: DEEMED ADMITTED
27. You have told numerous people that Arlene is a crack shot with her pistols.
RESPONSE: DEEMED ADMITTED
55. You intended to harm Plaintiff.
RESPONSE: DEEMED ADMITTED
60. You caused Plaintiff financial and emotional harm.
RESPONSE: DEEMED ADMITTED
VII. Summary Judgment on Assault Proper Against Arlene Toback
11.) In Texas, anyone who directs, encourages, aids or abets in the wrongful act of assault is as responsible for the actions as the person who actually committed the assault. Stein v. Meachum,
748 S.W.2d 516 (TEX. APP. – Dallas 1988, no writ). Admissions of Arlene Toback, Individually and d/b/a Pat-A-Rose Miniature Horses a/k/a Pat-A-Rose Partnership as reflected in Exhibit “A”
Plaintiff’s Motion for Final Summary Judgment Page 6. establish that Defendant knowingly and intentionally assaulted Plaintiff on June 9, 2003 with the intent of causing her to move her horses and to inflict Plaintiff harm:
12. You saw Plaintiff as a threat to your intent to control Margie Wood and MarJac Miniatures.
RESPONSE: DEEMED ADMITTED
13. You intended to drive Plaintiff away from any contact with Margie Wood and MarJac Miniatures.
RESPONSE: DEEMED ADMITTED
15. You intended to have your spouse throw Plaintiff and her horses off of the MarJac property on June 9, 2003.
RESPONSE: DEEMED ADMITTED
16. You knew you could not cause a problem with Plaintiff because you had been told by Margie Wood that she would evict you from the property if you did.
RESPONSE: DEEMED ADMITTED
17. You told Plaintiff that you had the complete trust of her horses at every opportunity.
RESPONSE: DEEMED ADMITTED
18. You lied to Plaintiff about how frequently you groomed, petted, touched and gave treats to her horses.
RESPONSE: DEEMED ADMITTED
19. You knew Plaintiff brought her mare “Warmans Sunshine” to MarJac Miniatures for mare and foaling care.
RESPONSE: DEEMED ADMITTED
20. You knew it would be dangerous to move a pregnant mare late in the pregnancy,
RESPONSE: DEEMED ADMITTED
21. You knew the Plaintiff would not be able to leave her horses at place where she could not visit and care for the horses at will.
RESPONSE: DEEMED ADMITTED
Plaintiff’s Motion for Final Summary Judgment Page 7. 22. You knew that causing Plaintiff to be frightened of Defendants would cause her to move her horses.
RESPONSE: DEEMED ADMITTED
23. You knew Plaintiff would not leave her horses at MarJac Miniatures after being assaulted on June 9, 2003.
RESPONSE: DEEMED ADMITTED
24. On June 10, 2003 you told Plaintiff that you would “not hurt” her horses even though she had been threatened with physical harm on June 9 if she did not leave the MarJac property.
RESPONSE: DEEMED ADMITTED
25. You knew that mentioning harm to her horses, even in the negative, would be sufficient to cause her to move the horses away from you.
RESPONSE: DEEMED ADMITTED
26. You suggested to Margie Wood on numerous occasions that that you were capable of causing physical harm to other people.
RESPONSE: DEEMED ADMITTED
27. You have told numerous people that you are a crack shot with your pistols.
RESPONSE: DEEMED ADMITTED
28. You have told people that you do not get mad, that you get even with actions intended to hurt others reputations and business.
RESPONSE: DEEMED ADMITTED
55. You intended to harm Plaintiff.
RESPONSE: DEEMED ADMITTED
60. You caused Plaintiff financial and emotional harm.
RESPONSE: DEEMED ADMITTED
Plaintiff’s Motion for Final Summary Judgment Page 8. VIII. Summary Judgment on Tortious Interference Cause Proper
12.) Plaintiff is entitled to final summary judgment on her claims of tortious interference with a contractual relationship, which caused her damages. A plaintiff must prove the existence of a contract subject to interference, a willful or intentional act of interference, proximate cause and damages. Texas Beef Cattle Co. v. Green, 921 S.W.2d 203 (TEX. 1996); Wal-Mart Stores,
Inc. v. Sturges, 52 S.W. 3d 711 (TEX. 2001). In the instant cause, deemed admissions establish all elements of this cause of action and no issue of material fact exists for a jury to consider.
IX. Summary Judgment on Tortious Interference Proper Against Irv Toback
13.) Admissions of Defendant Irving Toback, Individually and d/b/a Pat-A-Rose
Miniature Horses a/k/a Pat-A-Rose Partnership as reflected in Exhibit “A” establish that
Defendant tortiously and intentionally interfered with Plaintiff’s contract with Margie and Jack
Wood of MarJac Miniature Horses on June 9, 2003 with the intent of causing her to move her horses and to inflict Plaintiff harm:
12. Supra at VI 10.)
13. Supra at VI 10.)
14. Supra at VI 10.)
15. Supra at VI 10.)
19. Supra at VI 10.)
20. Supra at VI 10.)
21. Supra at VI 10.)
22. Supra at VI 10.)
23. Supra at VI 10.)
55. Supra at VI 10.)
Plaintiff’s Motion for Final Summary Judgment Page 9. 60. Supra at VI 10.)
X. Summary Judgment on Tortious Interference Proper Against Arlene Toback
14.) Admissions of Arlene Toback, Individually and d/b/a Pat-A-Rose Miniature Horses a/k/a Pat-A-Rose Partnership as reflected in Exhibit “A” establish that Defendant tortiously and intentionally interfered with Plaintiff’s contract with Margie and Jack Wood of MarJac Miniature
Horses on June 9, 2003 with the intent of causing her to move her horses and to inflict Plaintiff harm:
12. Supra at VII 11.)
13. Supra at VII 11.)
15. Supra at VII 11.)
19. Supra at VII 11.)
20. Supra at VII 11.)
21. Supra at VII 11.)
22. Supra at VII 11.)
23. Supra at VII 11.)
55. Supra at VII 11.)
60. Supra at VII 11.)
XI. Summary Judgment on Defamation Cause Proper
15.) A statement is defamatory when the words tend to injure a person’s reputation, impeach any person’s honesty, or exposes the person to public hatred, contempt, or financial injury. Section 73.001 Tex. Civ. Pract. Rem. Code (Vernon 2002). Einhorn v. LaChance, 823
S.W.2d 405 (TEX. APP. – Houston [1st Dist.] 1992, writ dism’d w.o.j.). Slander is a false oral
Plaintiff’s Motion for Final Summary Judgment Page 10. statement that is published to a third person without legal excuse, which refers to an ascertainable person. Randall’s Food Mkts., Inc., v. Johnson, 891 S.W.2d 640 (TEX. 1995).
Libel is defamation expressed in written form. Rogers v. Dallas Morning News, 889 S.W.2d
467, (TEX. APP. – Dallas 194, writ denied). A defamatory statement is made with malice when the statement is made with knowledge of its falsity or with reckless disregard of the truth.
Ramos v. Henry C. Beck Co., 711 S.W.2d 331, (TEX. APP. – Dallas, no writ). The evidence establishes that the Defendants conducted a campaign to discredit and harm Plaintiff after assaulting her and interfering in her business relationship with MarJac Miniatures. The
Defendants’ deemed admissions establish all elements of this cause of action and no issue of material fact exists for a jury to consider.
XII. Summary Judgment on Defamation Cause Proper Against Irv Toback
16.) Admissions of Defendant Irving Toback, Individually and d/b/a Pat-A-Rose
Miniature Horses a/k/a Pat-A-Rose Partnership as reflected in Exhibit “A” establish that
Defendant knowingly and intentionally defamed Plaintiff with the intent of causing her harm to her reputation in the miniature horse industry, to impugn her credibility and to cause her financial harm.:
41. You have told numerous lies about Plaintiff, her horses, her family and what happened while you were living at MarJac Miniature Horse Ranch to numerous people.
RESPONSE: DEEMED ADMITTED
52. You became angry at Plaintiff when she moved her horse called Toby and Margie’s horse called Piddles to another property.
RESPONSE: DEEMED ADMITTED
53. You have told numerous people that the horses referenced in Request for Admissions Number 52 that the horses were moved to “hide” dwarf horses and that they were sold over your objections.
Plaintiff’s Motion for Final Summary Judgment Page 11. RESPONSE: DEEMED ADMITTED
54. You have told numerous people that the horses referenced in Request for Admissions Number 52 were dumped into terrible conditions over you objections.
RESPONSE: DEEMED ADMITTED
55. You intended to harm Plaintiff.
RESPONSE: DEEMED ADMITTED
58. You intended to harm the reputation of Plaintiff’s business.
RESPONSE: DEEMED ADMITTED
59. You intended to harm the reputation of MarJac Miniature Horse business.
RESPONSE: DEEMED ADMITTED
60. You caused Plaintiff financial and emotional harm.
RESPONSE: DEEMED ADMITTED
63. You caused harm to the reputation of Plaintiff’s business.
RESPONSE: DEEMED ADMITTED
XIII. Summary Judgment on Defamation Cause Proper Against Arlene Toback
16.) Admissions of Defendant Arlene Toback, Individually and d/b/a Pat-A-Rose
Miniature Horses a/k/a Pat-A-Rose Partnership as reflected in Exhibit “A” establish that
Defendant knowingly and intentionally defamed Plaintiff with the intent of causing her harm to her reputation in the miniature horse industry, to impugn her credibility and to cause her financial harm.
14. You told numerous lies about Scarlett to your spouse and to numerous other individuals in the miniature horse industry.
RESPONSE: DEEMED ADMITTED
Plaintiff’s Motion for Final Summary Judgment Page 12. 29. You have told American Miniature Horse Association that Plaintiff told you to alter photos in order to register a dwarf foal she owned.
RESPONSE: DEEMED ADMITTED
30. Plaintiff told you that she did not want you to alter any photos of any of her horses for any reason.
RESPONSE: DEEMED ADMITTED
31. You have altered and used altered photos of your own horses on web sites and in ads for your ranch.
RESPONSE: DEEMED ADMITTED
32. You were the only person on MarJac Miniature Ranch with the computer knowledge sufficient to alter photos while you resided on that property.
RESPONSE: DEEMED ADMITTED
41. You have told numerous lies about Plaintiff, her horses, her family and what happened while you were living at MarJac Miniature Horse Ranch to numerous people in private messages on the Little Beginnings Miniature Horse Forum on the Internet.
RESPONSE: DEEMED ADMITTED
43. You have told numerous lies about Plaintiff, her horses, her family and what happened while you were living at MarJac Miniature Horse Ranch to numerous people in private messages on the AOL Instant Messaging on the Internet.
RESPONSE: DEEMED ADMITTED
44. You have told numerous lies about Plaintiff, her horses, her family and what happened while you were living at MarJac Miniature Horse Ranch to numerous people in private messages on MSN Instant Messaging on the Internet.
RESPONSE: DEEMED ADMITTED
45. You have told numerous lies about Plaintiff, her horses, her family and what happened while you were living at MarJac Miniature Horse Ranch on a web site you created and published on the Internet.
RESPONSE: DEEMED ADMITTED
Plaintiff’s Motion for Final Summary Judgment Page 13. 52. You became angry at Plaintiff when she moved her horse called Toby and Margie’s horse called Piddles to another property.
RESPONSE: DEEMED ADMITTED
53. You have told numerous people that the horses referenced in Request for Admissions Number 52 that the horses were moved to “hide” dwarf horses and that they were sold over your objections.
RESPONSE: DEEMED ADMITTED
54. You have told numerous People that the horses referenced in Request for Admissions Number 52 that the horses were dumped into terrible conditions over you objections.
RESPONSE: DEEMED ADMITTED
55. You intended to harm Plaintiff.
RESPONSE: DEEMED ADMITTED
58. You intended to harm the reputation of Plaintiff’s business.
RESPONSE: DEEMED ADMITTED
60. You caused Plaintiff financial and emotional harm.
RESPONSE: DEEMED ADMITTED
63. You caused harm to the reputation of Plaintiff’s business.
RESPONSE: DEEMED ADMITTED
XIV. Summary Judgment as to Damages is Proper
17.) A Summary Judgment disposing of the entire case is proper if, as a matter of law, the Respondents could not succeed on any issue plead. Delgada v. Burns, 656 S.W. 2d 428
(TEX. 1970); Gibbs v. General Motors Corp., 450 S.W. 2d 827 (TEX. 1970). Defendants herein filed a one paragraph general denial of all issues. No defenses remain for a finder of fact to consider. The damages issue was addressed to each Defendant in Plaintiff’s Requests for
Plaintiff’s Motion for Final Summary Judgment Page 14. Admissions. There is no genuine issue of material fact regarding causation and damages remaining for a trier of fact to consider.
Admission of Irv Toback:
76. You caused Plaintiff to incur damages of at least one hundred thousand dollars ($100,000.00).
RESPONSE: DEEMED ADMITTED
Admission of Arlene Toback:
78. You caused Plaintiff to incur damages of at least one hundred thousand dollars ($100,000.00).
RESPONSE: DEEMED ADMITTED
WHEREFORE, PREMISES CONSIDERED, SCARLETT BRANN, PLAINITIFF, respectfully prays that this Court grant her FINAL SUMMARY JUDGMENT against
DEFENDANTS IRV TOBACK, Individually and d/b/a PAT-A-ROSE MINIATURE HORSE
A/K/A PAT-A-ROSE PARTNERSHIP and ARLENE TOBACK, Individually and d/b/a PAT-A-
ROSE MINIATURE HORSE A/K/A PAT-A-ROSE PARTNERSHIP, jointly and severally, in the amount of ONE HUNDRED THOUSAND DOLLARS ($100,000.00), plus post-judgment interest at the legal rate, all costs of court and such other relief to which Plaintiff may justly be entitled.
Respectfully submitted,
VICTORIA THOMPSON
______TBN: 02888400 3 Live Oak Trail Cypress, TX 77429 (281) 970-7191 (281) 970-7193 – FAX ATTORNEY FOR PLAINTIFF
Plaintiff’s Motion for Final Summary Judgment Page 15. CERTIFICATE OF SERVICE
I hereby certify that on this 10th day of November, 2003, a true and correct copy of the foregoing instrument was served by hand delivery signature requested Counsel in Charge for Defendants, George Renneberg, 804 West Dallas, Suite 9, Conroe, Texas 77301.
______Victoria Thompson
Plaintiff’s Motion for Final Summary Judgment Page 16.