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					                                   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 APPLICATION FOR WRIT OF ATTACHMENT
                 and EX PARTE HEARING or alt. SHOW CAUSE ORDER

TO THE HONORABLE JUDGE OF SAID COURT:

      COMES NOW, SCARLETT BRANN, Plaintiff herein, and files this APPLICATION FOR

WRIT OF ATTACHMENT pursuant to Texas Civil Practice and Remedies Code 61.001 et seq. and

Texas Rules of Civil Procedure Rule 592, upon hearing would respectfully show the Court the

following:

                            I. Ex Parte Hearing on Writ of Attachment

      1.) Pursuant to Rule 592, Texas Rules of Civil Procedure, Rules Relating to Ancillary

Proceedings, Application for Writ of Attachment and Order, an Application for Writ of Attachment

may be heard ex parte. In the instant cause, Plaintiff has knowledge, as well as information and

belief that Defendants will move the property subject to this Application, before the Attachment

may be served and secured by Order of this Court, if notice if provided before the Writ is issued.

The process of Writ Attachment provided the Defendants with an opportunity to replevy the

property and to be protected from wrongful attachment by a bond to be posted. Ex Parte hearing on

this matter is necessary for the preservation of the property and in the interests of justice.

      2.) Service of this Writ of Attachment is necessary as follows:

                                                        Plaintiff’s Application for Writ of Attachment
                                                                                                Page 1.
               a.) To Defendants Irv and Arlene Toback, both individually and d/b/a Pat-A-Rose

Miniature Horses a/k/a Pat-A-Rose Partnership by and through their attorney of record, George

Renneberg, 804 West Dallas, Suite 9, Conroe, Texas 77301, and by personal service at their

place of residence at The Country Place, 3701 Waukegan Road, Space A5, Sportsman brand

recreational vehicle, license plate number 728 J5G, Conroe, Montgomery County, Texas 77306.

               b.) To the Defendants’ agent in possession of the property, Lee Birdwell, L-B

Ranch, 14900 Pamela Lane, Conroe, Texas 77306.

                             II. Attachment is Available in this Cause

       3.) Attachment of personalty may be requested at anytime after the commencement of a

lawsuit even before the debt owed to plaintiff is due. Texas Civil Practice and Remedies Code,

Sections 61.003 and 61.004. The plaintiff must show that the following general provisions of Texas

Civil Practice and Remedies Code Section 61.001 exist:

               a.) The defendants are justly indebted to the plaintiff;

               b.) The attachment is not sought for purposes of injuring the defendants or for
               purposes of harassment;

               c.) The Plaintiff will probably lose her debt unless the Writ of Attachment is issued,
               and

               d.) Specific grounds exist under Section 61.002.

       4.) Application for Writ of Attachment is proper in this case, at this time, based on the

existence of the following facts:

               a.) Defendants were properly served and, through counsel of record, filed a one

               paragraph general denial, Defendants Original Answer, currently on file before

               this Court. The time for this Writ of Attachment is proper.




                                                      Plaintiff’s Application for Writ of Attachment
                                                                                              Page 2.
b.) The Defendants are justly indebted to the Plaintiff. On November 10, 2003,

Plaintiff filed her Motion for Final Summary Judgment and Notice of

Submission, based on deemed admissions resulting from Defendants’ failure to

answer or object to Requests for Admissions and other discovery served to them on

September 11, 2003. Defendants were served through counsel of record with the

Notice of Submission on that same date it was filed, as evidenced by Exhibit “A”,

attached hereto and incorporated herein for all purposes. Defendants’ response to

the motion for summary judgment was due on December 4, 2003, seven days before

the submission date on December 11, 2003. To date no response has been filed, nor

have objections to the deemed admissions, or answers to Interrogatories or Requests

for Production have been filed.     Plaintiff submits that her Motion for Final

Summary Judgment is unopposed and is good, making the debt of the final

judgment amount, deemed by operation of law to have been admitted to by the

Defendants, of One Hundred Thousand Dollars ($100,000.00) justly due and owed

by Defendants to Plaintiff.

c.) This Writ of Attachment is not sought for purposes of harming or harassing

Defendants. Plaintiff submits that Defendants have abandoned their defense of this

matter because the facts of the underlying cause are clear, direct and undeniable.

Defendants could not deny the Requests for Admissions because they are aware of

independent witnesses standing prepared to testify under oath to the matters

contained in those Requests.      Further, Defendants have numerous creditors,

including those who have rendered professional veterinary and farrier services to

their horses and merchants who have provided feed for the horses in this county and



                                    Plaintiff’s Application for Writ of Attachment
                                                                            Page 3.
several other Texas counties, only to receive dishonored checks that have yet to be

paid. Based on information from Montgomery County Hot Check Division clerks,

one arrest warrant has recently been paid, one is before the Judge in Montgomery

County for hot checks Defendants gave to a veterinarian and a local feed store

before June, 2003. See Exhibit “B” Affidavit of Scarlett Brann and Exhibit “C”

Affidavit of Victoria Thompson, attached hereto and incorporated herein for all

purposes.

d.) Your Plaintiff will lose her debt if this Writ of Attachment is not granted.

Without cooperation in discovery, the only property belonging to Defendants that is

known by Plaintiff to exist, which is non-exempt property that would be subject to a

Writ of Execution to satisfy a judgment, is a number of registered miniature horses

presently owned by Defendants and maintained within Montgomery County. The

fair market value of those horses does not come close to paying the damages they

have caused by their assaultive and defamatory actions toward Plaintiff. Defendants

have every incentive to remove those horses from this jurisdiction to avoid paying

this debt:

        i.) Defendants reside in a recreational vehicle, capable of rapid relocation;

        ii.) Defendants have no family in the community, or even in the State of
        Texas;

        iii.) Defendant Irv Toback has worked for less than a year selling campers in
        Conroe, and the winter season is about to begin, potentially reducing his
        income and tie to the community through his job;

        iv.) One outstanding arrest warrant exists in Montgomery County for writing
        a worthless check, one warrant was settled by the Defendants previously,
        more than four worthless checks are still outstanding in Erath and Hamilton
        Counties; and



                                      Plaintiff’s Application for Writ of Attachment
                                                                              Page 4.
                       v.) Four of Defendants’ show horses were recently awarded to the owners of
                       a training facility in Washington County, Texas through a barn lien for
                       outstanding fees of over $16,000.00, eliminating a tie to the community and
                       giving Defendants incentive to hide their breeding stock from creditors.

                          III. Specific Grounds for Writ of Attachment

        5.) In addition to the general grounds for Writ of Attachment, specific grounds must exist to

support the availability of a writ of attachment as a pre-judgment action pursuant to Texas Civil

Practice and Remedies Code Section 61.002. The following specific grounds are founded in fact in

the instant cause:

        Section 61.002 Specific Grounds
               Attachment is available if:

        (3) the defendant is hiding to that ordinary process of law cannot be served on him;

        (4) the defendant has hidden or is about to hide his property for the purpose of defrauding
        his creditors;…

        (6) the defendant is about to remove his property from the county in which the suit is
        brought with the intent to defraud creditors;

        (7) the defendant has disposed or is about to dispose of all or part of his property with the
        intent to defraud his creditors;

        (8) the defendant is about to convert all or part of his property into money for the purpose of
        placing it beyond the reach of his creditors.

        6.) Defendants have broadcast over the Internet that they live in Cleveland, Texas, outside

of Montgomery County, on several acres with a house and barn. They have published that they

attend church in that community. They have returned properly delivered regular postal service and

certified mail, return receipt requested delivered to the address of the residence where service of

process was affected as to Defendant Arlene Toback, noting in on the returned mail that they have

moved and left no forwarding address. Defendants have told contacts that they do not wish to give

out their post office box where mail may be received because they do not want people to know how



                                                      Plaintiff’s Application for Writ of Attachment
                                                                                              Page 5.
to reach them. Contrary to their attempt to hide the location of their residence and their horses, they

continue to reside in the same location as that listed in Plaintiff’s First Amended Original

Petition, in Defendants’ Sportsman brand recreational vehicle, license plate number 728 J5G

parked at The Country Place, 3701 Waukegan Road, Space A5, Cut and Shoot, Montgomery

County, Texas. See Exhibits “B” (Affidavit of Plaintiff), “C” (Affidavit of Victoria Thompson)

“D”, Affidaivt of Margie Wood, attached hereto and incorporated herein for all purposes.

        7). Defendants have demonstrated their attitude toward creditors in a prior matter when

they threatened to forcibly enter Freedom Hill Farm in Chappell Hill, Washington County, Texas, to

remove four show horses they owned, before that training facility had an opportunity to foreclose on

their lien for services provided and take title to the horses through a Writ of Execution and Sheriff’s

auction for the sale of the horses. Defendants have also made numerous false representations to

potential buyers of the show horses at Freedom Hill Farm, representing that one-half ownership of

the show horses was available to all the new partners to share in the proceeds of breeding after a

successful show campaign. In fact the proposed purchase price would not clear the lien on the

horses sufficiently to allow them to actually be shown, nor did Defendants have the income

necessary to support one-half of the show fees under a partnership agreement.              Defendants

attempted to defraud the potential purchasers and avoid legal action by the training center to

foreclose on the debt they owed of over $22,000.00 at that time. Finally they have stated publicly

that the Plaintiff would never be allowed to take ownership of their horses regardless of the pending

litigation. See Exhibits “B” (Affidavit of Plaintiff) “C” (Affidavit of Victoria Thompson) and “D”

(Affidavit of Margie Wood) previously attached hereto.

       8.) Defendants’ present intentions, and pattern of prior actions to avoid creditors, place the

Plaintiff at a high risk of the Defendants moving or transferring title to the remaining miniature



                                                      Plaintiff’s Application for Writ of Attachment
                                                                                              Page 6.
horses to avoid the debt owed in this cause, leaving her with no other remedy to secure a judgment

entered by the Court. Plaintiff requests this that this Application for Writ Attachment be granted

in order to maintain the status quo of the parties’ positions, and to preserve the non-exempt personal

property that would be subject to Writ of Execution on Final Judgment, until final disposition of this

matter is effected by this Court.

                                       IV. Subject Property

        9.) Pursuant to Texas Civil Practice and Remedies Code a Writ of Attachment may be

levied only on property that by law is subject to levy under a writ of execution. Under Chapter 42.

of the Texas Property Code, Section 42.002 (10) defines animals and forage exempt from

attachment, execution or other seizure to be “(A) two horses, mules or donkeys and a saddle,

blanket and bridle for each.” Texas Rules of Civil Procedure, Rule 640 allows a levy on livestock

running at large pursuant to a writ of execution.

        10.) Defendants presently own seven miniature horses and one miniature donkey. One of

those horses is a red and white pinto, miniature horse gelding, referred to as “Maxwell’s Cisco” and

the miniature donkey referred to as “Shaddy” or “Pat-A-Rose Shadrack”. These two animals

owned by Defendants, do not hold appreciable market value, and are designated as exempt personal

property, not subject to Attachment under Texas Property Code, Section 42.002 (10). Plaintiff

would show that the animals subject to this Application for Writ of Attachment as non-exempt

personal property are identified and described as follows:

        a. Medieval Times Superstition, “Zoey”, an AMHA registered, chestnut two-year-old filly
        with a white snip, approximately 30.5” tall at the withers;

        b. Freedom Hill Farms High Steppin Fashion, an AMHA and AMHR registered, chestnut
        mare, with a white star, who is pregnant for a 2004 foal, approximately 34” tall at the
        withers;




                                                     Plaintiff’s Application for Writ of Attachment
                                                                                             Page 7.
        c. MarJacs Midnight Velvet, an AMHA registered, solid black mare who is pregnant for a
        2004 foal, approximately 32.5 “ tall at the withers;

        d. Pat-A-Rose Golden Melody Serenade, an AMHA pending or eligible, weanling, dark
        bay filly, who is approximately 27” to 29” tall at the withers;

        e. Maxwell’s “ Munchie”, an AMHA registered, dark bay mare, with a very round girth,
        who is approximately 26.25” tall at the withers;

        f. Maxwell’s Radiance, “Domi”, an AMHA registered, black and white pinto mare, who
        has previously foundered, who is approximately 33.25” tall at the withers. Reportedly she
        foaled on this year’s coldest night and died two days later of pneumonia. In the event that
        the foal in fact survived, she would have a black and white pinto filly at her side;

        g. All necessary implements used in the care of each of the horses, including halters, water
        buckets, feed buckets, blankets, brushes, current medications, if any and such other items
        presently needed by these horses for their proper care in Defendants’ possession or control.

        See Exhibits B, C, and D previously identified and attached hereto.

        12.) In addition to the horses which are the subject of this Application for Writ of

Attachment, Plaintiff would show that the title of ownership in these animals is evidenced by the

original registration documents issued by the American Miniature Horse Association (AMHA) and

the American Miniature Horse Registry (AMHR). Writ of Attachment to take custody of these

original certificates of registration of the horses is critical to preventing the Defendants from selling

or otherwise transferring title to third parties, to avoid satisfying the rulings of this Court and avoid

satisfying the debt owed to the Plaintiff. Plaintiff requests that Writ of Attachment be issued for

the Sheriff to take custody of the certificates from the Defendants and to hold said documents until

further order of the Court. Plaintiff is not fully aware of all of the registrations of these horses and

requests that any and all original registration documents be a part of the Writ of Attachment issued

in this matter.

        13.) Two of the mares, for which the Writ of Attachment is sought, are pregnant and due to

foal in 2004. In order for those foals to be properly registered, AMHA and AMHR Breeder’s



                                                        Plaintiff’s Application for Writ of Attachment
                                                                                                Page 8.
Certificates must be signed by the owner of record at the time of breeding. One mare was bred to

second stallion after being vet checked in foal to the first, casting the breeding into to question and

causing the registering association to determine that the foal may not be registered until extensive,

costly DNA testing is completed. Alternate certificates for the foal in question, two for each of the

two potential registering agencies, must be signed by Defendants before those animals will have any

fair market value. Plaintiff requests this court grant a Writ of Attachment for breeders’ certificates

signed by Defendants to be preserved as a part of the documentary property preserved by the

executing official at the time of attachment. See Exhibit “D” (Affidavit of Margie Wood) and the

attached envelope of original foal registration forms for such signatures.

        14.) The subject miniature horses are roaming in a heavily wooded paddock located on the

property of Lee Birdwell at L-B Ranch, 14900 Pamela Lane, Conroe, Montgomery County, Texas

77306. Notice of the Writ of Attachment must served on Mr. Birdwell, as the Defendants’ agent

in control and possession of the animals, as well as being served on the Defendants. Plaintiff

counsel will be available to assist in the identification of the correct animals for levy and assist in

the loading and transportation of the animals following the Sheriff’s Execution of the Writ of

Attachment of the miniature horses. Plaintiff counsel will provide an additional witness to be

present at the time of identifying and attaching the animals.

                                    V. Appointment of a Receiver

        15.) A Judge may make such necessary orders, pursuant to Texas Rules of Civil Procedure,

Rule 605, as maybe necessary for the preservation of perishable personal property levied under the

writ of attachment which has not been claimed or replevied. A court of competent jurisdiction may

appoint a receiver in an action by a creditor to subject any property to his claim or in any other case

in which at receiver may be appointed under the rules of equity. Texas Civil Practice and Remedies



                                                        Plaintiff’s Application for Writ of Attachment
                                                                                                Page 9.
Code, Chapter 64. Receivership; Section 64.001. The very same conditions for the appointment of

a receiver must be established as those contained in the general and specific grounds required for a

Writ of Attachment. Section 64.001 (b) (Tex. Civ. Pract. Rem. Code.) The evidence cited in

Paragraphs I. and II. above has addressed those requirements. Further, Section 64.002 (a)

provides that the court may not appoint a receiver that is related to the business entity of the parties

to the lawsuit. (Id.)

        16.) Plaintiff submits that a Writ of Attachment is proper and necessary to preserve the

perishable personal property of the identified miniature horses owned and being hidden by

Defendants in this matter. While the Sheriff of the county is charged with taking possession of the

Attached property, Plaintiff submits that care and boarding of miniature horses, some of which are

presently pregnant, requires the specialized care of an experienced miniature horse owner and

breeder. Plaintiff requests this Court to appoint Barbara Lopez, as a Special Receiver to receive

the miniature horses that would be subject to the Writ of Attachment, and to provide appropriate

care, based on her sole discretion, to preserve the animals in a safe and healthy manner, until final

disposition of the matter by this Court, and in support thereof would show this citizen’s

qualifications for the appointment as the following:

        a.) Barbara Lopez presently owns and cares for her own miniature horses, including

        pregnant mares, foaling mares, and newborn foals. She has the expertise necessary for the

        preservation of the potentially perishable personal property, which forms the subject of this

        motion;

        b.) Barbara Lopez is known to the parties to the lawsuit yet has no personal relationships or

        business relationships with the parties other than being acquainted with them. Defendants

        had at one time requested her to take their animals since they did not own or lease property



                                                       Plaintiff’s Application for Writ of Attachment
                                                                                              Page 10.
        sufficient for the care and board of their animals. This could not be an objectionable person

        from the Defendants’ perspective in terms of providing for the safe care of the horses.

        c.) Barbara Lopez is willing to serve as the receiver with the Plaintiff being responsible for

        paying all costs of board, feed, farrier care, veterinary care and such other items which, in

        her sole judgment, is necessary for the safe care of the attached horses.

        d.) She resides in Montgomery County and has been a long time resident of the county.

        She has the necessary real property, forage, paddocks and barns to provide care of these

        animals during the existence of the Attachment.

        e.) She requests that the Defendants not have communication with or access to her or to her

        property for her safety and for the safety of her animals. Any Writ of Attachment and

        Appointment of a Special Receiver should contain appropriate orders preventing Defendants

        from coming with 500 yards of the special receivers’ property, the subject horses, or the

        special receiver and any member of her family.

        See Exhibit “D” Affidavit of Barbara Lopez attached hereto and incorporated herein for all
        purposes.

        17.) Plaintiff submits that the boarding fee of $125.00 per month per horse as requested by

the Special Receiver and payable directly to the Special Receiver, in addition to payment of possible

specific necessary care fees. Plaintiff submits that these fees are eminently reasonable and would

request the Court set the amount as requested by the Special Receiver. Further, Plaintiff would

request the Court recognize that Barbara Lopez’s interest in accepting this responsibility is to

provide an important service to her community and to care for the horses that are the subject of this

attachment. As such, Plaintiff would request that the need for a bond to be posted by the Special

Receiver be set a very nominal amount or completely waived in light of the bond required to be

posted by the Plaintiff in this cause.

                                                      Plaintiff’s Application for Writ of Attachment
                                                                                             Page 11.
                            VI. Value Claimed and Bond Requirement

        18.) Plaintiff must establish through affidavit evidence the existence of the general grounds,

specific grounds and amount of the demand to be filed with the papers of the Court. Section 62.022,

Civil Practice and Remedies Code. Before the Writ of Attachment may issue, the Court must fix

the amount of a bond Plaintiff must post with two or more good and sufficient sureties, payable to

the Defendants which is conditioned on the Plaintiff prosecuting the suit to effect and paying all

damages and costs adjudged against her for wrongful attachment. Said bond is to be filed among

the papers of the Court before the Writ of Attachment is executed. Section 62.023 Tex. Civ. Pract.

Rem. Code.

        19.) Plaintiff would show that the maximum amount of the claim in this matter is based on

deemed admissions upon which the Plaintiff’s Motion for Final Summary Judgment has been

predicated. That amount, admitted by each of the Defendants is $100,000.00 plus costs of court and

post judgment interest at the legal rate. Regardless of the maximum amount, Plaintiff would show

that the fair market value of the property to be attached is only a fraction of the amount of the claim.

The fair market value of the non-exempt property Plaintiff requests be subject to attachment is

based on the current market value of two first pregnancy unproven mares, three senior mares and a

weanling filly; of those one mare has been foundered and one mare’s breeding was the result of an

attempt to defraud the registering association regarding the stud responsible for the pregnancy and

until extensive, costly DNA parentage testing is complete the foal has been ruled to be un-

registerable. Based on the factual circumstance of the horses and affidavit testimony attached

hereto at Exhibits “B” and “D” the total value of the horses to be subject of the Writ of Attachment,

along with their necessary tack, total Six Thousand, Two Hundred Dollars ($6.200.00). Plaintiff

prays the Court take in to account this fair market value, as well as the consideration to be paid



                                                      Plaintiff’s Application for Writ of Attachment
                                                                                             Page 12.
directly to the Special Receiver when setting the Board to be posted to secure the Writ of

Attachment.

                                     VII. Conclusion and Prayer

        WHEREFORE, PREMISES CONSIDERED, SCARLETT BRANN, PLAINITIFF,

respectfully prays that this Court grant her request for EX PARTE HERAING or in the alternative

ORDER TO SHOW CAUSE and her APPLICATION FOR WRIT OF ATTACHMENT 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, set a bond thereon, grant her

request for APPOINTMENT of a SPECIAL RECEIVER, and issue a WRIT OF

ATTACHMENT causing Defendants and Lee Birdwell to be personally served with proper Notice

of Writ of Attachment, to take custody of all original registration certificates, three signed foal

registration certificates, together with the six or seven female miniature horses, identified as:

        a. Medieval Times Superstition “Zoey”, an AMHA registered, chestnut two-year-old filly
        with a white snip, approximately 30.5” tall at the withers;

        b. Freedom Hill Farms High Steppin Fashion, an AMHA and AMHR registered, chestnut
        mare, with a white star, who is pregnant for a 2004 foal, approximately 34” tall at the
        withers;

        c. MarJacs Midnight Velvet, an AMHA registered, solid black mare who is pregnant for a
        2004 foal, approximately 32.5 “ tall at the withers;

        d. Pat-A-Rose Golden Melody Serenade, an AMHA pending or eligible, weanling, dark
        bay filly, approximately 27” to 29” tall at the withers;

        e. Maxwell’s “ Munchie”, an AMHA registered, dark bay mare, approximately 26.25” tall
        at the withers;

        f. Maxwell’s Radiance, “Domi”, an AMHA registered, black and white pinto mare,
        approximately 33.25” tall at the withers. Reportedly she foaled on this year’s coldest night
        and died two days later of pneumonia. In the event that the foal in fact survived, she would
        have a black and white pinto filly at her side;

                                                       Plaintiff’s Application for Writ of Attachment
                                                                                              Page 13.
        g. All necessary implements used in the care of each of the horses, including halters, water
        buckets, feed buckets, blankets, brushes, current medications, if any and such other items
        presently needed by these horses for their proper care in Defendants’ possession or control.

        Cause the Attached property to be delivered to the custody of the Special Receiver, to

continue such custody until further Order of the Court and for such other relief to which Plaintiff

may justly be entitled.

                                               Respectfully submitted,

                                               VICTORIA THOMPSON



                                               ___________/S/_________________________
                                               TBN: 02888400
                                               3 Live Oak Trail
                                               Cypress, TX 77429
                                               (281) 970-7191
                                               (281) 970-7193 – FAX
                                               ATTORNEY FOR PLAINTIFF




                                                      Plaintiff’s Application for Writ of Attachment
                                                                                             Page 14.
                               CERTIFICATE OF SERVICE

        I hereby certify that on this __5th____ day of __December_, 2003, a true and correct
copy of the foregoing instrument was served by hand delivery, to George Renneberg, 804 West
Dallas, Suite 9, Conroe, Texas 77301.


                                    _________________/S/____________________
                                     Victoria Thompson




                                                 Plaintiff’s Application for Writ of Attachment
                                                                                        Page 15.

				
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