Preview
236-289141-16
FILED
TARRANT COUNTY
12/14/2016 9:44:21 AM
THOMAS A. WILDER
CAUSE NO. 236-289141-16 DISTRICT CLERK
CHOICE ATM ENTERPRISES, INC., § IN THE DISTRICT COURT
§
Plaintiff §
§
v. §
§ 236th JUDICIAL DISTRICT
MICHAEL SCOTT DAVIS §
§
Defendant. § TARRANT COUNTY, TEXAS
MOTION TO EXTEND TEMPORARY RESTRAINING ORDER
Plaintiff Choice ATM Enterprises, Inc. ("Choice") presents this Motion to Extend
Temporary Restraining Order and respectfully shows the following:
I.
On November 30, 2016, this Court granted a Temporary Restraining Order which
restrained Michael Scott Davis, his officers, agents, servants, employees, and attorneys and those
in active concert or participation to desist and refrain from obtaining, spending, dispersing,
disposing, wasting and/or releasing any funds, assets, and/or monies that belong to Choice that
Davis wrongfully acquired from Choice. This Court set the hearing on Choice's application for a
temporary injunction for December 14,2016 at 12:00 p.m.
II.
Pursuant to Rule 680 of the Texas Rules of Civil Procedure, Choice respectfully requests
that the Court extend the duration of the Temporary Restraining Order to December 28, 2016.
Rule 680 of the Texas Rules of Civil Procedure states that:
Every temporary restraining order granted without notice shall be endorsed with
the date and hour of issuance; shall be filed forthwith in the clerk's office and
entered of record; shall define the injury and state why it isirreparable and why
the order was granted without notice; and shall expire by its terms within such
MOTION TO EXTEND TEMPORARY RESTRAINING ORDER PAGEl
time after signing, not to exceed fourteen days, as the court fixes, unless within
the time so fixed the order, for good cause shown, is extended for a like period or
unless the party against whom the order is directed consents that it may be
extended for a longer period. The reasons for the extension shall be entered of
record. No more than one extension may be granted unless subsequent extensions
are unopposed.
TEX. R. CIV. P. 680. Thus, it is within the Court's power to extend the Temporary Restraining
Order if good cause shown. Id.
The Temporary Restraining Order should be extended because as is demonstrated by the
affidavit of the process server for Choice, there have been numerous attempts to serve Mr. Davis
with Plaintiffs Original Petition and Temporary Restraining Order. See Ex. A, Affidavit of
Michael Ingram. However, at this point, despite the several attempts to serve Mr. Davis with
Plaintiffs Original Petition and Temporary Restraining Order, Mr. Davis has not been served
despite the good faith efforts of the process server. See Ex. A.
Accordingly, Plaintiff Choice respectfully requests that this Court extend the Temporary
Restraining Order and the hearing date on Choice's Application for Temporary Injunction until
December 28, 2016, and allow the Temporary Restraining Order issued in this case to be
continued in full force and effect until that time.
III.
Therefore, Choice respectfully requests that the court grant this motion for extension of
the temporary restraining order issued by this Court, and that the Court grant plaintiff any other
relief to which plaintiff is entitled.
Respectfully submitted,
lsi Frank Hill
Frank Hill 09632000
Gregory A. Eyster 24055462
HILL GILSTRAP, P.C.
MOTION TO EXTEND TEMPORARY RESTRAINING ORDER PAGE 2
1400 West Abram Street
Arlington, Texas 76013
(817) 261-2222
(817) 861-4685 fax
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I certify that on the 13th day of December, 2016, I served a copy of the foregoing on
Defendant by regular mail and certified mail:
Michael Scott Davis
717 Greenridge Dr.
Arlington, Texas 76017
Frank Hill
Frank Hill
MOTION TO EXTEND TEMPORARY RESTRAINING ORDER PAGE 3
EXHIBIT A
AFFIDAVIT OF DUE DILIGENCE
State of Texas County of Tarrant District Court
Case No.: 236-289141-16
Plaintiff:
CHOICE ATM ENTERPRISES, INC.
vs.
Defendant:
MICHAEL SCOTT DAVIS
For:
Frank Hill
Gregory A. Eyster
HILL GILSTRAP, P.C.
1400 West Abram Street
Arlington, Texas 76013
Received by Michael Ingram of Pro Serv Process Services & Mobile Notary Certification #
nd
SCH664 Expiration 7-31-2017 on the 2 day of December, 2016 at 11:00 a.m. to be served on
Michael Scott Davis, 717 Greenridge Drive, Arlington, Texas.
Additional information pertaining to this serve:
DATE TIME ATTEMPTED ACTION TAKEN
SERVICE AT
ADDRESS
12-3-2016 4:44pm 717 Greenridge Drive I There was no answer at the door
I
Arlington, Texas I
12-7-2016 : 8:39pm 717 Greenridge Drive I Confirmed subject resides at location, per subjects
I
Arlington, Texas ' dad, Mr. Dillard. Left Business card with contact
infonnation for server, including Phone number
12-10-2016 9:09am 717 Greenridge Drive There was no answer at the door
Arlington, Texas
12-12-2016 I7:16pm 717 Greenridge Drive There was no answer at the door
! Arlington, Texas f
I am over the age of eighteen, not a party to nor interested in the outcome of the above numbered
suit and that I am certified to serv~ civil process. I have personal knowledge of the facts set forth
in the foregoing affidavit and declare that the statements therein contained are true and correct. I
am familiar with the Rules of Civil Procedure. I have never been convicted of a Felony or
Misdemeanor involving Moral Turpitude.
AFFIDAVIT OF DUE DILIGENCE PAGE I
:~::::~::~ SCH6 E(f
P
,7-31-2017
County of Tarrant
'\
~. _1\-r
Before me, \..)dY\QDtVB ,\~ ,notary public, on this day personally appeared
Michael Ingram of Pro Serv Process Services & Mobile Notary known to me or proved to me by
driver's license or other form of identification, to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
Given under my hand and seal of office this 13 day of December, 2016.
,,~:;F.!~~~~-'.
SAMANTHA TIGER
~"'i~~~f~
.
Notary Public, State of Texas
~:';;;!.~ .:;!
My Commission Expires
i.o·,;'.rl\'~~"'"
,/-Y~±eOT~
September 25, 2018
'-Notary Public, in and fort State
of Texas
AFFIDA VIT OF DUE DILIGENCE PAGE 2
EXHIBITB
CAUSE NO. 236-289141-16
CHOICE ATM ENTERPRISES, INC., § IN THE DISTRICT COURT
§
Plaintiff §
§
v. §
§ 236th JUDICIAL DISTRICT
MICHAEL SCOTT DAVIS §
§
Defendant. § TARRANT COUNTY, TEXAS
AFFIDAVIT OF FRANK HILL IN SUPPORT OF MOTION TO EXTEND
TEMPORARY RESTRAINING ORDER
State of Texas §
§
County of Tarrant §
Before me, the undersigned notary public, on this day personally appeared Frank Hill,
known to me, who after being duly sworn, on his oath stated:
1. My name is Frank Hill. I am a resident of Tarrant County, Texas. I am over
eighteen years of age and of sound mind, have never been convicted of a felony or a crime
involving moral turpitude and am otherwise competent to make this affidavit. I have personal
knowledge of the facts stated in this affidavit and they are true and correct.
2. I am a practicing attorney, licensed by the Supreme Court of Texas in 1966. My
license is in good standing and has been in good standing since itwas issued. I am a director
with the law firm of Hill Gilstrap, P.C., located at 1400 West Abram Street, Arlington, Tarrant
County, Texas 76013.
3. I received my law degree from Southern Methodist University in 1966. I am
admitted to practice law before the State of Texas, the State of Illinois, the U.S. Court of Claims,
the U.S. District Courts in the Northern District of Texas, the Eastern District of Texas, and the
Western District of Texas, and the U.S. Courts of Appeals in the Fifth Circuit and Eleventh
Circuit. I have tried between 200 and 300 jury trials in state and federal courts. I have been in
private practice in Tarrant County for more than forty years, and I practice frequently in both
Tarrant County and Dallas County. I have been in good standing and licensed to practice law in
the State of Texas since 1966.
4. I am lead counsel for Plaintiff in this litigation and am making this affidavit in
support of the Motion to Extend the Temporary Restraining Order.
AFFIDA VIT OF FRANK HILL PAGE 1
3. By its terms, and under Rule 680 of the Texas Rules of Civil Procedure, the temporary
restraining order issued by this court on November 30, 2016, will expire on December 14, 2016,
unless extended by this court.
4. Plaintiff seeks a fourteen-day extension of the time during which the court's order
remains in effect because Plaintiff s process server, despite several attempts, has not been able to
serve Defendant with Plaintiffs Original Petition and the Temporary Restraining Order dated
November 30,2016.
FURTHER, AFFIANT SAYETH NAUGHT.
Frank Hill
SWORN TO AND SUBSCRIBED BEFORE ME on this 13th day of December, 2016.
,
- Notary P lie in and for the
AMY RODRIGUEZ State of Texas
NOIBry Public
STATE OF TEXAs
My ComuLI!Ip. ApriJ 22, 2017
-
AFFIDA VIT OF FRANK HILL PAGE 2
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236-289141-16 FILED TARRANT COUNTY 12/14/2016 9:44:21 AM THOMAS A. WILDER CAUSE NO. 236-289141-16 DISTRICT CLERK CHOICE ATM ENTERPRISES, INC., § IN THE DISTRICT COURT § Plaintiff § § v. § § 236th JUDICIAL DISTRICT MICHAEL SCOTT DAVIS § § Defendant. § TARRANT COUNTY, TEXAS MOTION TO EXTEND TEMPORARY RESTRAINING ORDER Plaintiff Choice ATM Enterprises, Inc. ("Choice") presents this Motion to Extend Temporary Restraining Order and respectfully shows the following: I. On November 30, 2016, this Court granted a Temporary Restraining Order which restrained Michael Scott Davis, his officers, agents, servants, employees, and attorneys and those in active concert or participation to desist and refrain from obtaining, spending, dispersing, disposing, wasting and/or releasing any funds, assets, and/or monies that belong to Choice that Davis wrongfully acquired from Choice. This Court set the hearing on Choice's application for a temporary injunction for December 14,2016 at 12:00 p.m. II. Pursuant to Rule 680 of the Texas Rules of Civil Procedure, Choice respectfully requests that the Court extend the duration of the Temporary Restraining Order to December 28, 2016. Rule 680 of the Texas Rules of Civil Procedure states that: Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it isirreparable and why the order was granted without notice; and shall expire by its terms within such MOTION TO EXTEND TEMPORARY RESTRAINING ORDER PAGEl time after signing, not to exceed fourteen days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. No more than one extension may be granted unless subsequent extensions are unopposed. TEX. R. CIV. P. 680. Thus, it is within the Court's power to extend the Temporary Restraining Order if good cause shown. Id. The Temporary Restraining Order should be extended because as is demonstrated by the affidavit of the process server for Choice, there have been numerous attempts to serve Mr. Davis with Plaintiffs Original Petition and Temporary Restraining Order. See Ex. A, Affidavit of Michael Ingram. However, at this point, despite the several attempts to serve Mr. Davis with Plaintiffs Original Petition and Temporary Restraining Order, Mr. Davis has not been served despite the good faith efforts of the process server. See Ex. A. Accordingly, Plaintiff Choice respectfully requests that this Court extend the Temporary Restraining Order and the hearing date on Choice's Application for Temporary Injunction until December 28, 2016, and allow the Temporary Restraining Order issued in this case to be continued in full force and effect until that time. III. Therefore, Choice respectfully requests that the court grant this motion for extension of the temporary restraining order issued by this Court, and that the Court grant plaintiff any other relief to which plaintiff is entitled. Respectfully submitted, lsi Frank Hill Frank Hill 09632000 Gregory A. Eyster 24055462 HILL GILSTRAP, P.C. MOTION TO EXTEND TEMPORARY RESTRAINING ORDER PAGE 2 1400 West Abram Street Arlington, Texas 76013 (817) 261-2222 (817) 861-4685 fax ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I certify that on the 13th day of December, 2016, I served a copy of the foregoing on Defendant by regular mail and certified mail: Michael Scott Davis 717 Greenridge Dr. Arlington, Texas 76017 Frank Hill Frank Hill MOTION TO EXTEND TEMPORARY RESTRAINING ORDER PAGE 3 EXHIBIT A AFFIDAVIT OF DUE DILIGENCE State of Texas County of Tarrant District Court Case No.: 236-289141-16 Plaintiff: CHOICE ATM ENTERPRISES, INC. vs. Defendant: MICHAEL SCOTT DAVIS For: Frank Hill Gregory A. Eyster HILL GILSTRAP, P.C. 1400 West Abram Street Arlington, Texas 76013 Received by Michael Ingram of Pro Serv Process Services & Mobile Notary Certification # nd SCH664 Expiration 7-31-2017 on the 2 day of December, 2016 at 11:00 a.m. to be served on Michael Scott Davis, 717 Greenridge Drive, Arlington, Texas. Additional information pertaining to this serve: DATE TIME ATTEMPTED ACTION TAKEN SERVICE AT ADDRESS 12-3-2016 4:44pm 717 Greenridge Drive I There was no answer at the door I Arlington, Texas I 12-7-2016 : 8:39pm 717 Greenridge Drive I Confirmed subject resides at location, per subjects I Arlington, Texas ' dad, Mr. Dillard. Left Business card with contact infonnation for server, including Phone number 12-10-2016 9:09am 717 Greenridge Drive There was no answer at the door Arlington, Texas 12-12-2016 I7:16pm 717 Greenridge Drive There was no answer at the door ! Arlington, Texas f I am over the age of eighteen, not a party to nor interested in the outcome of the above numbered suit and that I am certified to serv~ civil process. I have personal knowledge of the facts set forth in the foregoing affidavit and declare that the statements therein contained are true and correct. I am familiar with the Rules of Civil Procedure. I have never been convicted of a Felony or Misdemeanor involving Moral Turpitude. AFFIDAVIT OF DUE DILIGENCE PAGE I :~::::~::~ SCH6 E(f P ,7-31-2017 County of Tarrant '\ ~. _1\-r Before me, \..)dY\QDtVB ,\~ ,notary public, on this day personally appeared Michael Ingram of Pro Serv Process Services & Mobile Notary known to me or proved to me by driver's license or other form of identification, to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this 13 day of December, 2016. ,,~:;F.!~~~~-'. SAMANTHA TIGER ~"'i~~~f~ . Notary Public, State of Texas ~:';;;!.~ .:;! My Commission Expires i.o·,;'.rl\'~~"'" ,/-Y~±eOT~ September 25, 2018 '-Notary Public, in and fort State of Texas AFFIDA VIT OF DUE DILIGENCE PAGE 2 EXHIBITB CAUSE NO. 236-289141-16 CHOICE ATM ENTERPRISES, INC., § IN THE DISTRICT COURT § Plaintiff § § v. § § 236th JUDICIAL DISTRICT MICHAEL SCOTT DAVIS § § Defendant. § TARRANT COUNTY, TEXAS AFFIDAVIT OF FRANK HILL IN SUPPORT OF MOTION TO EXTEND TEMPORARY RESTRAINING ORDER State of Texas § § County of Tarrant § Before me, the undersigned notary public, on this day personally appeared Frank Hill, known to me, who after being duly sworn, on his oath stated: 1. My name is Frank Hill. I am a resident of Tarrant County, Texas. I am over eighteen years of age and of sound mind, have never been convicted of a felony or a crime involving moral turpitude and am otherwise competent to make this affidavit. I have personal knowledge of the facts stated in this affidavit and they are true and correct. 2. I am a practicing attorney, licensed by the Supreme Court of Texas in 1966. My license is in good standing and has been in good standing since itwas issued. I am a director with the law firm of Hill Gilstrap, P.C., located at 1400 West Abram Street, Arlington, Tarrant County, Texas 76013. 3. I received my law degree from Southern Methodist University in 1966. I am admitted to practice law before the State of Texas, the State of Illinois, the U.S. Court of Claims, the U.S. District Courts in the Northern District of Texas, the Eastern District of Texas, and the Western District of Texas, and the U.S. Courts of Appeals in the Fifth Circuit and Eleventh Circuit. I have tried between 200 and 300 jury trials in state and federal courts. I have been in private practice in Tarrant County for more than forty years, and I practice frequently in both Tarrant County and Dallas County. I have been in good standing and licensed to practice law in the State of Texas since 1966. 4. I am lead counsel for Plaintiff in this litigation and am making this affidavit in support of the Motion to Extend the Temporary Restraining Order. AFFIDA VIT OF FRANK HILL PAGE 1 3. By its terms, and under Rule 680 of the Texas Rules of Civil Procedure, the temporary restraining order issued by this court on November 30, 2016, will expire on December 14, 2016, unless extended by this court. 4. Plaintiff seeks a fourteen-day extension of the time during which the court's order remains in effect because Plaintiff s process server, despite several attempts, has not been able to serve Defendant with Plaintiffs Original Petition and the Temporary Restraining Order dated November 30,2016. FURTHER, AFFIANT SAYETH NAUGHT. Frank Hill SWORN TO AND SUBSCRIBED BEFORE ME on this 13th day of December, 2016. , - Notary P lie in and for the AMY RODRIGUEZ State of Texas NOIBry Public STATE OF TEXAs My ComuLI!Ip. ApriJ 22, 2017 - AFFIDA VIT OF FRANK HILL PAGE 2