Victory Cheval Holdings, LLC Garrett Jennings And Castle Crown Management, LLC v. Dennis Antolik Victor Antolik And Cheval Manor, Inc. D/B/A Austin Polo Club

ACCEPTED

03-15-00464-CV

6735032

THIRD COURT OF APPEALS

AUSTIN, TEXAS

8/31/2015 6:53:58 PM

JEFFREY D. KYLE

CLERK

NO. 03-15-00464-CV

FILED IN

3rd COURT OF APPEALS

AUSTIN, TEXAS

8/31/2015 6:53:58 PM

IN THE COURT OF APPEALS JEFFREY D. KYLE

Clerk

FOR THE

THIRD SUPREME JUDICIAL DISTRICT

AT AUSTIN, TEXAS

VICTORY CHEVAL HOLDINGS, LLC, GARRETT JENNINGS

AND CASTLE CROWN MANAGEMENT, LLC,

Appellants

v

DENNIS ANTOLIK, VICTOR ANTOLIK

and CHEVAL MANOR, INC.,

Appellee

APPELLANTS' RESPONSE TO APPELLEES DENNIS ANTOLIK'S AND

CHEVAL MANOR, INC'S MOTION FOR CONTEMPT

AND REFERRAL TO TRIAL COURT

TO THE HONORABLE COURT OF APPEALS:

Appellants, Victory Cheval Holdings, LLC, Garrett Jennings and Castle

Crown Management, LLC, respond to Appellees Dennis Antolik's and Cheval

Manor, Inc.'s Motion for Contempt and Referral to Trial Court (the "Motion") as

follows:

1. The Motion should be denied for the following reasons:

(a) Appellants have not violated the Temporary Injunction (the "Order");

and

(b) the Order is not sufficiently clear and definite to be enforceable by

contempt.

2. Appellees first complain that Appellants have not established a new

Operating Account for the property as required under Section C1 of the Order. At the

time the Order was entered, Victory Cheval Holdings, LLC ("VCH") had an account

established at Horizon Bank. VCH began depositing into this account all revenue

from the property and paying out of this account all expenses associated with the

property.

3. VCH attempted to make Victor Antolik an authorized person on the

account but without signature privileges.1 Horizon Bank's administrative policies

would not accommodate this request. Therefore, VCH is in the process of moving

the account to an institution that will allow one of the members of VCH, Victor

Antolik, to be an authorized person on the account with full access to the account but

without signature privileges.

4. Appellees apparently contend that the Order requires VCH somehow to

pay all of the expenses listed in paragraph C3 regardless of whether there is money in

the account. This is clearly erroneous.

5. Paragraph C3 of the Order simply states that "unless otherwise agreed in

writing by Garrett Jennings and Victor Antolik, funds in the Operating Account shall

1 As stated in Appellants' Motion to Stay Temporary injunction filed herein on

July 29, 2015, Appellants interpret the first sentence of Section C5 of the Order to make

Mr. Jennings the sole signatory on the Operating Account: "Garrett Jennings is authorized

to make and shall be responsible for making and keeping an accurate accounting of all

payments outlined in paragraph C3 of this Order from the Operating Account." (Emphasis

added), Motion to Stay, paragraph D2.

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only be used to fund the following", followed by a list of items beginning with

Veterinarian DVM Jonathan Cohen. Nothing in the Order requires any of Appellants

to furnish the funds to make the payments if they are not available for operations of

the property.2 Funds available from operation of the property are not adequate to pay

its expenses, and those funds that are available are being used to pay only authorized

expenses.

6. Appellees also complain that Mr. Jennings has not made a capital

contribution of $35,000 to repair damage to the polo field as provided in paragraph

C6 of the Order. Paragraph C6 does not say to whom the payment is to be made or

when. Therefore, it is not something that can be enforced by contempt. See

discussion below. Furthermore, C6 conflicts with Section C3(d) of the Order which

authorizes payment out of the Operating Account of "up to $6,000 per month for

labor and maintenance relating to the polo field." In this regard, Mr. Jennings is in

the process of making arrangements to have the polo field repaired prior to the

October 2015 event using fees to be paid by the persons promoting the event.

Finally, there are questions of equity concerning Appellees' claim that Mr. Jennings

should be held in contempt for alleged violation of C6. Setting aside the undisputed

fact that it was Dennis Antolik's actions in allowing his horses to roam on the field

when it was soaked from the torrential late May rains that caused the damage in the

first place, Mr. Antolik continues to allow his horses to roam on the polo field in

violation of Section B6 of the Order.

7. Finally, Appellees complain that Appellants have not provided Dennis

Antolik with the passwords needed to access Austin Polo Club's Facebook page and

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When intended that someone in particular was to provide funding for a

payment, the order is relatively clear. See, Section C6, where Mr. Jennings is required to

make a "capital contribution" to VCH in an amount not to exceed $35,000 to repair

damage to the polo field. There is no similar provision regarding the list of expenses

that can be paid out of the Operating Account that are listed at C3, subparagraphs a.

through j.

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web site. The Order does not contain any such provision. All it says is that

Appellants "shall not use the name 'Austin Polo Club' or limit Dennis Antolik from

using it in any way."

8. The black letter law in Texas is that an order sufficiently clear and

definite to be enforceable by contempt must set out the terms of compliance so

specifically and unambiguously that the party knows precisely the duties and

obligations he must perform. Ex Parte Hodges, 625 S.W.2d 304 (Tex. 1981); see

also, Ex Parte Slavin, 412 S.W.2d 43 (Tex. 1967) (in order for a person to be held in

contempt for disobeying a court decree, the decree must spell out the details of

compliance in clear, specific, and unambiguous terms so that a person will readily

know what obligations are imposed upon him by the decree). Put another way, the

judgment must clearly order the party to perform the required acts. Ex Parte Brister,

801 S.W.2d 833, 834 (Tex.1990), citing, Ex Parte Gorena, 595 S.W.2d 841, 845

(Tex. 1979).

9. Interpretation of the provisions of the court order in question should not

rest upon implication or conjecture. Ex Parte Blasingame, 748 S.W.2d 444, 446

(Tex. 1988). The trial court's underlying order, when tested by itself, must speak

definitely to the meaning and purpose of the act ordered. Ex Parte Hodges, 625 S.W.

2d at 306. It cannot contain uncertainty or susceptibility of more than one

construction or meaning. Ex Parte Glover, 701 S.W.2d 639, 640 (Tex. 1985).

10. The provisions of the Order cited by Appellees as grounds for contempt

are, as discussed above, clearly not sufficiently clear and definite to be enforceable

by contempt. Therefore, therefore those provisions are, as matter of law,

unenforceable by contempt.

WHEREFORE, Appellants respectfully pray that the Motion be denied and for

general relief.

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Respectfully submitted,

/s/ Kemp Gorthey

Kemp W. Gorthey

State Bar No. 08221275

Kendall L. Bryant

State Bar No. 24058660

THE GORTHEY LAW FIRM

604 West 12th Street

Austin, Texas 78701

Tele: 512/2368007

Fax: 512/4796417

Email: kemp@gortheylaw.com

Email: kendall@gortheylaw.com

ATTORNEY FOR APPELLANTS,

GARRETT JENNINGS and

CASTLE CROWN PROPERTIES

MANAGEMENT, LLC

and

/s/ Peyton Smith

PEYTON N. SMITH

Attorney in Charge

State Bar #: 18664350

Brian L. King

State Bar #24055776

REED & SCARDINO LLP

301 Congress Avenue, Suite 1250

Austin, Texas 78701

Tel: 512/474-2449

Fax: 512/474-2622

psmith@reedscardino.com

emoskowitdz@reedscardino.com

ATTORNEY FOR APPELLANT,

VICTORY CHEVAL

HOLDINGS, LLC

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CERTIFICATE OF SERVICE

By my signature above, I hereby certify that a true and correct copy of the

foregoing Appellants' Response to Appellees Dennis Antolik's and Cheval Manor,

Inc.'s Motion for Contempt and for Referral to Trial Court has been forwarded to

Appellees' attorneys on this 31st day of August, 2015, as follows:

Cleveland R. Burke Via Email: cburke@taubesummers.com

Mark Taylor Via Email: MarkT@hts-law.com

Taube Summers Harrison

Taylor Meinzer Brown LLP

100 Congress Avenue, Suite 1800

Austin, Texas 78701

Donald R. Taylor Via Email: dtaylor@taylordunham.com

Isabelle M. Antongiorgi Via Email: ima@taylordunham.com

Taylor, Dunham & Rodriguez, LLP

301 Congress Avenue, Suite 1050

Austin, Texas 78701

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